The URL can be used to link to this page

CEB Minutes 09/30/1996 1996 Code Enforcement Board September 30, 1996 ; September 30, 1996 REGULAR MEETING OF SEPTEMBER 30, 1996 OF THE CODE ENFORCEMENT BOARD LET IT BE REMEMBERED, that the Code Enforcement Board in and for the County of Collier met on this date at 8:40 a.m. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRPERSON: M. Jean Rawson Charles Andrews Jim Allen Mireya Louviere Celia Deifik Louis Laforet Richard McCormick ALSO PRESENT: Richard D. Yovanovich, Attorney to the Board Ramiro Manalich, Assistant County Attorney Shirley Jean McEachern, Assistant County Attorney Page 1 ~ SEP-19-'96 THU 15:25 ID:COMPLANCE SERVICES TEL NO:941 643-8345 *'*584 Pel1 :t ; ;PDR 'Inn'n.t"!~ IlOARD or C!OLL:I:2R ~0tDITY If'LOllyn.a. 6gaH~A 2:)&1:&: Locat::Lon.; September 30, 1996 .t 8130 0'c1ock A.M. Co~~:L.r County aovernmen: Center, Admn. a1dg, 3rd F100r lfOTB; ANY PI!lRBOK WHO DI!lC:tDBlS '1'0 APPEAL A :CBC%S:tON OF '1'H:IS BOAJU:) W1:LL NJIlIn) A R.CORD OF THIll PROCBBD:INCJS PBllTA1:N:tNO THBllZ'1'O, AND THBllEPORB MAY NBBn TO IINSOllB THAT A VBRBATZM RBCOIU:) OF THE PROCEED:tNGS :tS MJU)B, NH%CH RBCORD %NCLtmBS THB TBSTI:MOHY AND BVI:DBHCB UPON WH:rCH THE APPEAL :IS TO BE BASED. NB::r:THSR COLL:tER COtJN'1'Y NOR. '1'HJI: CODE BNPORC.-.aan' BOARD SHALL :aB RESPONl!!I:rBLB FOR PROV:ID:ING '1'H:rs RBCORD. 1. 2. 3. ll. S. S. .OLL ,.....y...L APpaOVA.L OJ!' AQJn1'I)A ~~OVAL 01" M:rNU'l'BS :DtftlL:re -lII.'D:rN'G8 ~" BUS:r1l1l88 OLD Bu..:nnUUI A. .c:c: va. De1 H. Ackerman and Jay McM:!.11ian l"~~:Lng o~ ~~:!.d.v~l:. o~ Nan-eomp1iance and .eque.: ~or :tmpo.:L:~on o~ ~ine. C:BS Ko. '5-00' August 22, 199. N/A N/A B. Bce v.. Qhas:01e. W. Hick. and Joan JC. H:i.cka ...conaider eBB .prov.~ of . part:~.1 re1ea.e CBB No. 95-007 C. BCe VB. Fir.: Bank o~ :tmmoka1ee eBB No. 94-001 p~~~ng o~ A~~~d.v~t o~ Non-Compliance and Requ.st ~or %mpo.~t~on o~ .~ft.. 7. KIA October 24, 1"6 IlJIPOll'rS "XT tmlJr1'%H'l2 na.~ ADJOURN II ~L:I~ N'U:I8JUfC'E ARATEMII:NT "OARD OP COI.I.:tER COUNTY. 1"LOlt.%:CA' ASiJlHJ:lA NOT.: ANY PBRSON WHO DBC:tDBS TO .APPEAL A DISC:t8:ION OP TH%S BOARD W:tLL NI!lED .A RBCORD OF THB PROCJlBD%KCJS PBJtTl'XNI:NO THERI!lTO, AND THERBl"ORB HAY NEBD TO BNSURB THAT A VERBAT:tM RBCOIU:) OF THB PROC:e::SD:INGS :IS MA:cE, WH:tCH RECORD %NC'.::t.UDBS THB TBST:IMOHY .AN:c BVJ:DBNCB UPON WHXCH THE APPBAL I:S TO BB BASED. NI!lXTHBR COLL:rBlt COUNTY HOR THE POI!IL.IC NUZSJUlCB ABATJ5MItNT BOARD SHALL 1515 RESPONS:tBLB POR PROVJ:D:INCJ '1'H%S RllleOll:D. 1. 2. 3. 4. 5. S. 7. e. 9. .01.%. ,....9' T.. A>>~.ov.a.r... ~'" .a.lS~. A>>"'evA.L e. M~.S MmL~~ ..aD Tun. N/A A. acc v.. Laa Hec!r~c:h NAD - 5tS-001 N'RW :RIJJlY..AR 0Ln BU8:rHII:1!l1!!l ..1tn1I'rA ..~.. ~.~YN'a Da..TR AD.:J'nt7RN N/A KIA NIl' KIA -...... - T September 30, 1996 CHAIRPERSON RAWSON: The Code Enforcement Board of Collier County, Florida, will come to session, please. Let's have the roll card -- call starting at my left. MR. MCCORMICK: Richard McCormick. MR. LAFORET: Lou Laforet. MS. DEIFIK: Celia Deifik. CHAIRPERSON RAWSON: Jean Rawson. MS. LOUVIERE: Mireya Louviere. MR. ALLEN: Jim Allen. MR. ANDREWS: Charlie Andrews. CHAIRPERSON RAWSON: Congratulations. We are all present, although I think some of our members may recuse themselves when we get into the hearings. I'm glad to see all of us that are here. Let me ask our new attorney to identify himself for the record, although most of us know who he is. MR. YOVANOVICH: For the record, I'm Rich Yovanovich with the law firm of Roetzel and Andress. CHAIRPERSON RAWSON: Welcome aboard, Mr. Yovanovich. We're happy to have your legal counsel. The next item is the approval of today's agenda. Has everybody looked over the agenda? Are there any changes from the staff? MS. CRUZ: No changes, ma'am. CHAIRPERSON RAWSON: May I have a motion to approve today's agenda? MS. LOUVIERE: I make a motion we approve today's agenda. MS. DEIFIK: I'll second. CHAIRPERSON RAWSON: Been moved and seconded that we approve today's agenda. All in favor signify by saying aye. Agenda will be approved. We need now to approve the minutes of the last meeting which was actually the transcript of this hearing that has been continued over till today. The approval of the minutes of August 22, 1996, anybody have any changes, corrections, or additions to the minutes? MS. LOUVIERE: Make a motion we approve the minutes of August 26 -- 22, I'm sorry, 1996. MR. ANDREWS: Second. CHAIRPERSON RAWSON: Been moved and seconded that we approve August 22 minutes. All in favor signify by saying aye. The minutes will be approved. Next item is public hearings. There are none. Next item is new business. There is none. And now we are to the old business which is the hearing Board of County Commissioners .versus Del H. Ackerman and Jay McMillan. Before we get started, I'm going to ask that any members of the board who need to recuse themselves to now signify so for the record. MR. ALLEN: Jim Allen, I must recuse myself. CHAIRPERSON RAWSON: Okay. Page 2 :t ; September 30, 1996 MR. MCCORMICK: And Richard McCormick, I'll also recuse myself. CHAIRPERSON RAWSON: Well, sadly we're going to lose Mr. Allen and Mr. McCormick at least for the purposes of the rest of this hearing, but we do have a quorum present. Now, because this is a continuation of a rather lengthy hearing, without having told the attorneys this, what I would like for you to do if you don't mind is give us a brief summary of -- of where you think we are in the case, refresh our recollection, if you will, and tell us where we're going to go from here so that the board is all in sync with where we are headed. Does the county attorney want to start with that? MR. MANALICH: Good morning, Madam Chairman, members of the board. For the record, Ramiro Manalich, chief assistant county attorney, and Shirley Jean McEachern, assistant county attorney, on behalf of county staff. Very briefly, from our perspective, we presented two witnesses, Mr. Arnold and Mr. Bolgar, regarding the sequence of events stemming from January of 1996 after the Board of County Commissioners denied a variance for an opaque fence. We told you that essentially there was some confusion regarding the compliance on the opaque fence. Mr. Bolgar and Mr. Arnold testified regarding their respective roles with regard to the fencing requirement, interpretation, and decision. You then heard from witnesses for the defense with some countervailing points on what responses were obtained from county staff. And I believe we're still in the defense's case. They had just finished with a Mr. Schwartz who was a person in the fencing industry. CHAIRPERSON RAWSON: Thank you. Mr. Murray? MR. MURRAY: Can you hear me okay? CHAIRPERSON RAWSON: Yes. MR. MURRAY: Basically where we are is -- where we have come from, Mr. Delbert Ackerman testified that he did everything that he thought he was supposed to in order to comply after receiving the order from the county commissioners that he would not receive a variance, that the fence had to be opaque. He testified that he took materials and he went to see Mr. Bolgar. Mr. Bolgar is a supervisor for code enforcement for the inspectors. It was his employees who went out and inspected. Mr. Mike Kirby, who will testify today, was the one who signed the -- this complaint, notice of violation, and he's the one who inspected. And he'll tell you that he inspected them over a 4-month period of time over 60 times, and he will tell you that MR. MANALICH: Objection, Madam Chairman. We're not talking about a prospective witness. MR. MURRAY: Sorry. _ MR. MANALICH: I believe the board had asked for what had transpired. MR. MURRAY: Okay. You're completely correct. mentioned in other testimony, Mr. Delbert Ackerman's testified that Mr. Kirby came out more than 60 times This was testimony. He to inspect him. Page 3 ":Z ; September 30, 1996 He testified that -- that he went to Mr. Bolgar because he had had a meeting with Mr. Bolgar with his attorney, Mr. Murray, myself, and that we sat down and we talked about the bushes, we talked about the size of the bushes, we talked about the trees, we talked about the size of the trees. We talked about everything in minute detail. It was logical for him to assume under the code that somebody had to review and somebody had to approve his opaque plan, and that is true. And, in fact, the code does require that. He was under the impression from talking with Mr. Bolgar -- and he testified to this -- that Mr. Bolgar was the man that he had to see. He went to see him and took his materials to him. Mr. Bolgar got back to him and said, "These are not __II according to his testimony and according to the testimony of Nancy Ackerman, "These materials are not acceptable," and that he would get back to him and tell him which materials were. Mr. Ackerman and Mrs. Ackerman testified that they called every month thereafter, and this is beginning around January of '96. They called every month and left a message, "We still need to know what kind of -- what kind of material." Apparently Mr. Bolgar who also testified he had 'numerous meetings and numerous phone calls also testified that -- I'm sorry. Mrs. Ackerman testified that -- that they were told to go see Mrs. Bolgar who worked at Scotty's or someplace like that. I forget the name of the place. And they went to see her. They -- they went to see that place. They didn't have the right kind of equipment. He had still planned to get back to them and tell them what kind of material to get. The long and the short of it is around May Mr. Kirby wrote up a notice of violation. For some reason it wasn't served until July. When it was served, Mrs. Ackerman immediately -- well, Mr. Ackerman went to see Mrs. Sullivan, and Mrs. Ackerman went to see Mr. Bolgar and said, "What is with this violation?" He says, "Go get blackout or weed-out, and you can get that at such and such place." Mr. Ackerman did. Mr. Ackerman testified that he took it to Mr. Bolgar. Mr. Bolgar confirms that. Mr. Bolgar stated, "In front of God and everybody, I approve this." Within two days it was installed. The inspectors went out, inspected it, took photographs of it, and a certificate of compliance was signed by Mr. Bolgar saying that the fence was now in compliance with the code. Some time after that Mr. Arnold went out and disapproved it. He said it was not in compliance. He said that it did not meet the standards of being opaque. And consequently, that was the sum and substance of the testimony of Mr. and Mrs. Ackerman. Now, we also heard from Mr. Schwartz, Ken Schwartz, who testified that he, in fact, put in this material that the county considered to be opaque and that Mr. Ackerman did come -- Mr. and Mrs. Ackerman came to see him. He.recommended this because it was used in contracts for the county that had met theoretically the specifications for being opaque. It allowed enough of a -- enough porousness to allow air to pass through it without pushing the fence down. And he testified that based on county contracts, this was an opaque material. This was the material that Mr. Ackerman took originally to Page 4 -~ ; September 30, 1996 Mr. Bolgar and it was disapproved as not being opaque. The sum and substance of his testimony was that -- that Mr. Ackerman -- as to the date which was certainly in compliance. It was just a few days after the county board of commissioners met and disapproved his request for a variance. He confirmed that. He confirmed when it was that he gave the materials and the fact that he took it up and the fact that they couldn't get anything approved. Excuse me one second because I don't want to leave out anybody who did testify. Can I consult my notes for one second? CHAIRPERSON RAWSON: Certainly. MR. MURRAY: We think that is sum and substance of what was presented so far by the defense. CHAIRPERSON RAWSON: Thank you, Mr. Murray. So for the board's edification, I believe the issue before us is whether or not a fine and a lien should be imposed and, if so, how much it should be because of the number of days which it seems to me is one of the issues in this case too. If we decide that there should be any lien imposed or fine imposed, how much should it be because how many days was he in noncompliance? So with that, Mr. Murray, why don't you call your next witness. MR. MURRAY: We would call Mr. Weekley. You wanna swear him in? THE COURT REPORTER: Sure. THEREUPON, MATTHEW WEEKLEY, a witness, having been first duly sworn, upon his oath, testified as follows: MR. MURRAY: Okay. Would you please state your full name for the record and your Social Security Number, please. MR. WEEKLEY: Matthew Weekley, and I don't know it by heart. MR. MURRAY: Fine. What is your address? CHAIRPERSON RAWSON: Mr. Weekley, I'm not sure whether your microphone is on, but if it is -- it is. Why don't you move the microphone closer to your mouth. That's good. MR. WEEKLEY: All right. CHAIRPERSON RAWSON: Thank you. MR. MURRAY: You have to speak up so everybody can hear you. MR. WEEKLEY: MR. MURRAY: MR. WEEKLEY: MR. MURRAY: Ackerman? MR. WEEKLEY: My dad's r~ally good friends with him, and I've worked for him. I helped put up the fence for him, and I've done the paper a couple times with him. MR. MURRAY: Okay. And did you help put up the -- the material that he originally put up to make the fence opaque? MR. WEEKLEY: Yeah. All right. Are you familiar Yeah. And what is your with Mr. Ackerman? relationship with Mr. Page 5 --'" -<: ; September 30, 1996 MR. MURRAY: And did you go with him when he went to see Mr. Bolgar? MR. WEEKLEY: Yeah. MR. MURRAY: And what did Mr. Bolgar say when he inspected the material? MR. WEEKLEY: That in God and front of everyone that he was MR. MURRAY: I'm sorry? MR. WEEKLEY: That in God and front of everyone he would approve this, the material that we brought to him. And he told us to get it up and there wouldn't be any more problems. MR. MURRAY: Okay. Did he say anything else? MR. WEEKLEY: Probably. I don't think I remember everything. It's been a while. MR. MURRAY: Okay. That's fine. I have no further questions. CHAIRPERSON RAWSON: Any cross-examination of Mr. Weekley? MR. MANALICH: None. CHAIRPERSON RAWSON: Thank you, Mr. Weekley. You may call your next witness, Mr. Murray. MR. MURRAY: I'd like to call Mr. Mike Kirby. THEREUPON, MICHAEL KIRBY, a witness, having been first duly sworn, upon his oath, testified as follows: MR. MURRAY: the record. MR. KIRBY: MR. MURRAY: MR. KIRBY: MR. MURRAY: county? MR. KIRBY: No. MR. MURRAY: Have you been an employee of the county? MR. KIRBY: Yes. MR. MURRAY: And when did your employment terminate? MR. KIRBY: On August 30. MR. MURRAY: Okay. And are you familiar with the -- the requirement of the opaque fence for Mr. Ackerman's property? MR. KIRBY: Yes. MR. MURRAY: And are you the one who signed the -- the notice of noncompliance? MR. KIRBY: Yes. MR. MURRAY: Or the statement of violation. MR. KIRBY: Yes. _ MR. MURRAY: And who did you work for when you worked for the county, and what was your job? MR. KIRBY: positions changed, so in the end before I resigned from the county, I was working for Bill Bolgar who was my supervisor and Linda Sullivan, the director. Would you please state your full name for My name is Michael Nelson Kirby. And your current address. 849 Newcastle Court, Cary, North Carolina. Are you currently an employee of the Page 6 .. .. _. ; September 30, 1996 MR. MURRAY: Okay. And what was your job? MR. KIRBY: I'm the environmental compliance investigator, so any environmentally type complaints that were called into the office were given to me for investigation and follow-up. MR. MURRAY: Okay. And approximately how many times did you visit the Ackerman property total? MR. KIRBY: I -- I don't know. I would need to take a look at my records, and I don't know that all my visits were on there. MR. MURRAY: Okay. records, please? MR. KIRBY: I would need to -- I have a daily log, and I did not bring that. It's -- it's at my desk. And on your daily log you write down what you do. I would need to go over that for, you know, a six-month period. MR. MURRAY: Did you visit more than 100 times? MR. KIRBY: I believe the testimony or we -- I talked about this before, and it was some number over 60. I don't -- my best guess is 60 to 80, 60 to 80 for this if it's -- can save some time. MR. MURRAY: But it could have been more than that. MR. KIRBY: It could have been. MR. MURRAY: Okay. And that's over a six-month period of time? MR. KIRBY: Yes. MR. MURRAY: Do you normally visit a violation for an opaque fence that many times? MR. KIRBY: No. MR. MURRAY: Why did you visit that many times for this case? MR. KIRBY: Well, I was case almost every day for -- MR. MURRAY: Okay. And Would you take a look at your directed to -- to check on this for a period of time. why were you directed every day? MR. KIRBY: Well, I can speculate why they had me do it. MR. MURRAY: Why is that? MR. KIRBY: Well, we had -- MR. MANALICH: Objection. Speculation. CHAIRPERSON RAWSON: Sustained. We don't need you to speculate, Mr. Kirby. MR. MURRAY: Were you ever told why you were being sent there so often? MR. KIRBY: Yes. MR. MURRAY: Why? MR. KIRBY: That we had another attorney, Mr. Lannane, who was going to make sure that we did our job so that we had better go down there and cross our t's and dot our i's so that, you know, that we would -- if any change or anything happened, we would certainly know about it and there would be no delay. MR. MURRAY: So that was the pressure brought about by Mr. Lannane? Page 7 ; September 30, 1996 MR. KIRBY: Yes. MR. MURRAY: Okay. When you -- from the period January of '96 until the period of May '96 when -- when you originally wrote up the noncompliance, how many times did you visit then? How many times did you visit the Ackerman property to in -- to inspect it? MR. KIRBY: I don't know. Maybe the chronological summary might have that figure in there. MR. MURRAY: Okay. Do you recall ever talking to Mrs. Ackerman when you went to visit during that period of time? MR. KIRBY: I've spoken to Mrs. Ackerman throughout the whole process, yes. MR. MURRAY: Okay. During that period of time, isn't it true that Mrs. Ackerman told you that she was waiting for Mr. Bolgar to get back with samples for the fence to make it opaque? MR. KIRBY: Yes, a portion of the time that's true. MR. MURRAY: Okay. We have no further questions. CHAIRPERSON RAWSON: Any cross? MR. MANALICH: Thank you. Mr. Kirby, during that same time span, you issued two affidavits of noncompliance, didn't you? MR. KIRBY: It's been a while. I need to consult my notes. I did issue at least one that I know of. Two, I'd have to check the notes. MR. MANALICH: You at least issued one? MR. KIRBY: Yes. MR. MANALICH: All right. Now, you had -- also at one time had issued I believe an affidavit of compliance; correct? MR. KIRBY: Yes, for -- I think there were three of the four that were in compliance. MR. MANALICH: Right. MR. KIRBY: So we wanted to specify that, so I believe we did, yes. MR. MANALICH: Did that affidavit address the opaque fence? Do you recall? MR. KIRBY: I would need to read it. I mean, it's probably in our package here but most likely not. We would simply say these are in compliance because it was separated. There was a separate line item for the opaque fence, and we were dealing with that separately. MR. MANALICH: When you made all of these visits that you've discussed on direct examination, most of those were to deal with all of the problems out there, right, not just the opaque fence? MR. KIRBY: For a portion of that time. The first three . problems were corrected. So yes, yes, a portion of that time was for the three, and then the remaining portion was simply the opaque fence. . MR. MANALICH: In your experience as an investigator at the county, in those cases where neighboring complainants are particular insistent, is it unusual for you to make repeat visits to a site? MR. KIRBY: No, it's not unusual to do that. Page 8 .~ ; September 30, 1996 MR. MANALICH: Thank you. No further questions. MR. MURRAY: I have some re -- redirect, please. You're fairly confident in your answer that there that this is an unusual case and that you haven't visited any others like this. Have there been any even close to this in numbers of visits? MR. KIRBY: No. MR. MURRAY: Okay. When Nancy Ackerman mentioned to you that she was waiting for Mr. Bolgar to give her a sample of what they had to do, did you go back and check with Mr. Bolgar? Where was the sample? MR. MANALICH: Objection. Beyond the scope of the cross-examination. This is redirect. CHAIRPERSON RAWSON: Sustained. MR. MURRAY: Your Honor, I -- for the record, I would like to disagree with that. He has talked about the inspection process, and I'm allowed to -- to -- to redirect anything about the -- the inspection process. CHAIRPERSON RAWSON: Are you asking him about the inspection process again? MR. MURRAY: I am indeed. These questions go to that inspection process that he just cross-examined on. I'm allowed to redirect concerning that inspection process. CHAIRPERSON RAWSON: Go ahead. Why don't -- why don't you rephrase your question and make it more general -- MS. DEIFIK: Ask questions. CHAIRPERSON RAWSON: -- about the inspection process. MR. MURRAY: Okay. In this inspection process when you talked about for the time -- period of time of January to May -- to May of 1996, when you inspected at that time and Nancy Ackerman said that she was waiting on Mr. Bolgar to -- to give a sample of what would be acceptable, did you happen to go ask Mr. Bolgar that, or did you just keep inspecting? MR. KIRBY: No, we spoke about it. MR. MURRAY: Okay. And what did Mr. Bolgar say? MR. KIRBY: He was working -- he had told me that he was working to get some samples to find out what was acceptable. MR. MURRAY: And that's between the period of time of January to May '96; correct? MR. KIRBY: Yeah. The -- yes. MR. MURRAY: Okay. You were cross-examined on a certificate of compliance. Do you have any knowledge of the certificate of compliance in regard to the fence that Mr. Bolgar made out? Did you assist him in that? MR. KIRBY: No . MR. MURRAY: Okay. Were 'you consul ted by Mr. Bolgar when he made out the certificate of compliance in regard to the fence? MR. KIRBY: No. MR. MURRAY: When you brought this action for the fine, when you signed those affidavits that -- that Mr. Manalich asked you Page 9 ; September 30, 1996 about, did you, in fact, check with Mr. Bolgar or Mrs. Sullivan prior to initiating this action? MR. KIRBY: This action -- MR. MURRAY: This action being a hearing to determine fines. MR. KIRBY: No. The -- we had a meeting to discuss about the fines. So it -- I didn't consult him. We had a meeting. MR. MURRAY: Was the meeting prior to filing the notice of hearing, a statement of violation and the request for hearing? MR. KIRBY: What date is this? MR. MURRAY: I believe the notice of hearing is the 7th dated the 7th of July, '95. MR. KIRBY: Yes. We would have had the meeting before that so that when we were cane -- I have to say I don't know. It was around that time because we wanted to come to -- when I worked there, I was part of the team. We wanted to come to this hearing with a recommendation. MR. MURRAY: Okay. Who was at the meeting that you had? MR. KIRBY: MR. MURRAY: MR. KIRBY: Maria, myself -- I'm sorry. Maria who? Maria Cruz, Ramiro and -- Ramiro Manalich and MS. MCEACHERN: Shirley Jean McEachern. MR. KIRBY: Shirley Jean, I'm sorry. MS. MCEACHERN: That's okay. MR. KIRBY: And Bill Bolgar. There may have been another person or two at the meeting, but those are the ones I can remember offhand. MR. MURRAY: Okay. And at this meeting, is this the meeting that you discussed to go after Mr. Ackerman for the fine, for imposition of the fine? MR. KIRBY: Yes. We-- MR. MURRAY: In previous testimony, Mr. Bolgar has testified that he didn't know anything about this until Mrs. Ackerman showed up and showed him the paperwork, the notice of hearing, and what not. Is -- is that correct? MR. KIRBY: I don't know. You know, we -- we just talked about what -- we wanted to specify what dates we believed Mr. Ackerman was in compliance and which dates he was not and if there was -- the county was at fault at this part, that we would try to -- try and waive that part of it and just figure out a time when we assumed it was Mr. Ackerman's responsibility and not the county's. MR. MURRAY: And -- and what times did you come up with that the county was at fault? MR. KIRBY: I would need.to look at the affidavit. It was a -- I don't remember the dates. MR. MURRAY: Let me give you a copy of the package, and you can refresh your recollection. MR. MANALICH: Madam Chairman, at this point while he's looking, I'd like to interpose an objection which is that if the Page 10 .~ r September 30, 1996 question is asking for what was the legal advice that was given in regard to the preparation of this case, I think that's attorney-client privilege. We deal in government sunshine law obviously, and I've allowed wide latitude here. But if it gets down to a point where we're asking about what was the attorney's advice to staff, I think that's privileged. CHAIRPERSON RAWSON: that's the question. MR. MURRAY: We have not asked for attorney-client matter. MR. MANALICH: Well, what I heard, Your Honor, was that he was asking what did we jointly decide at this meeting as to what would be the recommendation of this board at this litigated, contested matter. If that isn't attorney-client, then somebody please explain it to me. MR. KIRBY: The -- the final imposition of fines, the recommendation, that's not in this package. MR. MURRAY: Okay. At this meeting you had, did you mention that Nancy Ackerman said she was waiting -- the reason they didn't do anything was because she was waiting for Mr. Bolgar to give her the samples? Did you mention that at this meeting? You've-- you've test -- MR. KIRBY: We went over -- we went over the whole case. And we went over the portion about the samples and they were in at that time and whether or not we should im recommend fines for that portion of the time. So yes, we mostly the entire case. MR. MURRAY: Is it possible that this meeting you're referring to took place after Mr. Ackerman was served all of the package of papers put out by Miss Cruz? MR. KIRBY: When was Mr. Ackerman served? MR. MURRAY: He was served in -- MR. ACKERMAN: July, July the 11th. MR. MURRAY: -- sometime in July. He was served on July the 11th, I believe. MR. KIRBY: July 11, August. MR. MURRAY: Apparently it was served during the week that you were on vacation. MR. KIRBY: If -- if it was served the week that I went on vacation, then we had the meeting before Mr. Ackerman got his service. MR. MURRAY: Let me ask you, Mr. Kirby, if Mr. and Mrs. Ackerman are waiting on Mr. Bolgar, your boss, to present them with materials, are they, in fact, in violation? Are they trying to comply? MR. MANALICH: Objection._ That -- that invades the province of the board. CHAIRPERSON RAWSON: Sustained. MR. MURRAY: Your Honor, I must object to that objection. And I would like to posit for your consideration that this gentleman is the one who signed the affidavit that has initiated this I would sustain that objection if whose hands -- you know, discussed Page 11 ; September 30, 1996 action for a violation. He has to know what the violation is, and he has to know what fact situations amount to a violation so that he can sign the affidavit. The affidavit, in fact, gives a notice of violation. All I'm attempting to do is to determine if, in fact, under the scenario that I've just posited -- he has testified Nancy Ackerman told him when he made the inspections that she was waiting on Mr. Bolgar to get back to her with the materials so they could buy it and do it. And my question to him is, therefore, since she's in that posture and since Mr. and Mr. (sic) Ackerman are in that posture waiting on his boss, Mr. Bolgar, is she, in fact, technically in violation. CHAIRPERSON RAWSON: Well, I think the way you phrased the question is asking him for a legal opinion which this board only -- is the only body that has the province to make. You can ask him if he signed the affidavit and what the affidavit said. MR. MURRAY: Fine. Did you sign the affidavit of noncompliance? Affidavit of violation, I'm sorry. MR. KIRBY: I don't remember who signed it. MR. MURRAY: See if this refreshes your recollection. This is statement of violation and request for a hearing. Is that your signature, Mr. Kirby? MR. KIRBY: Yes. MR. MURRAY: Okay. please? MR. KIRBY: July 3, 1995. MR. MURRAY: Okay. Now, you have cited section 162.06 and section 162.12 of the Florida Statutes and county -- Collier County ordinance number 92-80. Are you familiar with those citations? MR. KIRBY: Yes. MR. MURRAY: Okay. Now, let me ask you the question again. If, in fact, Mrs. and Mr. Ackerman were waiting for your boss to tell them what type of material to put on the fence, are they, in fact, in technical violation of section 162.06, 162.12, and county ordinance number 92-80? MR. MANALICH: Renew objection. Legal CHAIRPERSON RAWSON: Sustained again. again, asking him for a legal opinion which power or the authority to render. MR. MURRAY: Are you familiar with zoning section two point two point one five and a half point six entitled fence requirements? MS. LOUVIERE: Code; right? MR. KIRBY: I just -- MR. MURRAY: I am referr~ng to the -- to the Collier County Land Development Code, yes, I am. MS. LOUVIERE: Thank you. That'd be great. MR. KIRBY: Vaguely. I don't remember the specifics of that section. MR. MURRAY: And what date did you sign that, conclusion. I think it's, I don't think he has the You are referring to the Land Development Let me show you that so you can refresh Page 12 ; September 30, 1996 your recollection since you signed the affidavit of violation. Would you please read the last sentence of the section that I cited for the record? MR. KIRBY: Said fence or wall shall be opaque in design and made of masonry, wood, or other materials approved by the site development review director. MR. MURRAY: Fine. Who is the site development review director, please? MR. KIRBY: Wayne Arnold or Bob Mulhere. The county's been reorganized so my -- MR. MURRAY: Isn't it -- MR. KIRBY: I think it's Bob Mulhere, but I'm -- the reorganization has me confused. MR. MURRAY: Isn't it a fact that there is none, there absolutely is no site development review director? MR. KIRBY: Well, the title may have changed but MR. MURRAY: Fine. Who is that now? MR. KIRBY: My -- if I was to walk up with that, I would go to Bob Mulhere. MR. MURRAY: Well, when Nancy Ackerman said, "Look, I'm waiting on Mr. Bolgar to bring the material so that I'll know what kind of material to put into the fence," did you tell her, "You have to see the site development review director. You can't see Mr. Bolgar"? MR. KIRBY: No. I -- she dealt with Mr. Bolgar, so I didn't -- I didn't direct her here or there with that. MR. MURRAY: Well, you signed a -- you signed a violation, and my question is, was she in violation if, in fact, she's waiting on apparently a site development review director or Mr. Bolgar to give her the samples so that she can go ahead and make the fence opaque? MR. MANALICH: Objection. Cumulative and legal conclusion. CHAIRPERSON RAWSON: Sustained again. Again, you're asking him a legal question that we have to determine, whether or not he was in violation. MR. MURRAY: For the record, I must object. I am entitled to go to the basis of his knowledge since he is the one who signed the affidavit of violation. If, in fact, he has misapplied it, I am entitled to cross-examine as to his misapplication. If, in fact, he has misapplied it or misstated the law, I'm entitled to cross-examine as to that. I am en -- certainly entitled to cross-examine as to his knowledge since he's the one who has cited it and he's the one who has sworn under oath that it is in violation of those citations. CHAIRPERSON RAWSON: I don't object to anything you've just said, Mr. Murray. What I do -- what I will sustain is the way you phrased the question asking him the ultimate legal question. You're right. You have the right to go into all of the things you just mentioned, but you can't ask him the ultimate legal question "Was there a violation." Page 13 ; September 30, 1996 MR. MURRAY: He's already answered that, Madam Chairman. He has signed an affidavit that there is a violation. CHAIRPERSON RAWSON: And you can get the affidavit into evidence. That's not a problem. MR. MURRAY: Okay. I need to know the basis for the violation that he has sworn to under oath. CHAIRPERSON RAWSON: Again, you can ask him any questions you want except the ultimate legal question. MR. MURRAY: Thank you, Madam Chairman. What is the basis for the notice -- for the statement of violation on the affidavit that you signed in July of '95? MR. KIRBY: In July of '95 there was no fence even put up at that time. It wasn't until '96, you know. MS. LOUVIERE: If there -- I'm sorry. I couldn't over -- I overheard what your client was saying. If there was a fence there in 1992, then why -- this SDP was approved in '92. Then why has this item been before -- before this board before? And -- and I have an order here dated November 20, 1995, stating that they have boats that are parked in the water management area, a miter pipe required that had not been done, and the opaque fence. So there were three issues that were outstanding. MR. MURRAY: I'm sorry. When was this? MS. LOUVIERE: This was back on November 20 of 1995. MR. MURRAY: Okay. We've just had testimony that there was no fence until '96 from the inspector who did an affidavit for notice of noncompliance. Now, the affidavit of noncompliance or the affidavit of violation or the statement of violation and request for hearing was signed by this gentleman on July of '95. He's just testified there was no fence until '96. Is that correct? MR. KIRBY: That's correct. MS. LOUVIERE: Your client was in violation. There was no fence there. You have -- you have MR. ACKERMAN: The fence was put up -- MR. MURRAY: Please. MR. ACKERMAN: Okay. MS. LOUVIERE: I really don't see what's so complicated about this -- this case. We have a site development plan approved in 1992 that stated you had to comply by doing these things; okay? You didn't do them. This item has been before this board. For four years now we've been listening to the same thing over and over again. Your client did three things. The fourth thing, which was to get an opaque fence, we asked him, go get a variance. If you do not get a variance, you have 15 days to put up a -- the fence or we're going to start to fine you. MS. DEIFIK: And that was his counsel's suggestion. MR. MURRAY: Okay. _ MS. LOUVIERE: And this was not -- MR. MURRAY: I'm sorry. Madam, would you like to conduct this hearing, or shall I do it and get through all of the information or -- MS. LOUVIERE: Well, we have been listening -- Page 14 ", .'. ... ; September 30, 1996 MR. MURRAY: -- or have you decided the answer? I just want to know because if you've already decided, I don't have to present any more evidence. MS. LOUVIERE: Well, it's just that I have been listening to this now for a long I mean, I listened to you, what, a couple hours last -- last time. MR. MURRAY: Well, just for the record, the fence has been up since 1992, so this is absolutely wrong. I have in front of you a man who does not know the facts who has signed the affidavit of violation. I'm facing here -- representing a client who is facing $30,000 in fine when, in fact, there's been a certificate of compliance issued, then pulled back. Other people have gotten into the act, gone out and investigated. He's -- he's testified under oath that he, in fact, has gone out there more than 60 times which is more than anybody has ever gone in anyplace. .And the reason he's testified is because of Mr. Lannane who has two lawsuits against him. MS. LOUVIERE: Okay. I cannot -- MR. MURRAY: Now this has become a personal vendetta, and the fact of the matter is that you're being used and manipulated. MR. MANALICH: Objection. Objection. There's nothing in the record to justify an allegation there's a county vendetta. There's certainly civil litigation of a very heated nature going on between the parties. But the county strenuously objects to any characterization anybody on the county staff is engaged in that kind of conduct. And all the testimony is contrary to that. I ask it be stricken from the record. MR. MURRAY: There's is no allegation. There's nothing to be stricken from the record. The vendetta is from Mr. Lannane, not from the county. CHAIRPERSON RAWSON: Thank you. Let's -- let's get back to your questions. You were I think at redirect. Why don't we finish up with Mr. Kirby and -- MR. MURRAY: Okay. CHAIRPERSON RAWSON: -- stick to the script. MR. MURRAY: Would you be surprised to know that the fence, in fact, has been installed since 19 -- since 1992? MR. KIRBY: Well, when I did the inspection, there was no fence there. MR. MURRAY: Okay. Would you be surprised to know that, in fact, on the certificate of occupancy it shows up and the certificate of occupancy was issued in 1992? MR. KIRBY: No, I'm not surprised. MR. MURRAY: How would you explain that? MR. KIRBY: Well, in an SDP checkoff when you go to the site, there are numerous things that are not checked that closely like sprinklers. And an opaque fence mayor may not have been there at the time. I did not do the inspection. It may have been signed off because there isn't a line item signoff for each of these items. go out there. And if it was signed off as the fence being there, could have been there, it could have not been there because it of those things are ancillary compared to water management and You it some Page 15 ; September 30, 1996 landscaping and other types of things. MR. MURRAY: Okay. Let me ask you again, do you know who the site development review director is or was? MR. MANALICH: Objection. Asked and answered. CHAIRPERSON RAWSON: I think it was asked and answered. MR. MURRAY: To the best of your recall when you signed this affidavit of violation, there was no fence at all; is that correct? MR. KIRBY: There was no -- just the chainlink fence. There was no opaque fence. MR. MURRAY: Are you testifying now that there was a chainlink fence? MR. KIRBY: Yes. MR. MURRAY: Okay. I have nothing further. MR. MANALICH: Briefly, Mr. Kirby, you had mentioned in your direct examination that you had had discussions on an ongoing basis with Mr. Bolgar about this opaque fence requirement; correct? MR. KIRBY: Yes. MR. MANALICH: Now, is it not true that Mr. Bolgar never told you that the county was itself responsible for installing this fence? MR. KIRBY: Right. The county -- right. The county wouldn't install a fence on private property. MR. MANALICH: Mr. Bolgar always told you that it was Mr. Ackerman's responsibility to comply with the order of this board; right? MR. KIRBY: Yes, sir. MR. MANALICH: He told you, did he not, that he was simply trying to help them in their responsibility to find the materials to establish the opaque fence? MR. KIRBY: Yes. MR. MANALICH: You and Mr. Bolgar enforce the codes; right? MR. KIRBY: Yes. MR. MANALICH: You are not charged with interpreting those codes; is that correct? MR. KIRBY: For the most part. MR. MANALICH: To render formal interpretations code, that's another branch of development services; MR. KIRBY: Correct, and with the help, signoff attorney's office. MR. MANALICH: Okay. As of early -- as of the date of your affidavit or notice of violation, early July of '96, there was no opaque fence at that property; correct? MR. KIRBY: I would need to see the affidavit. I don't know at what month they did i~stall the -- the fencing material on the chainlink fence. I don't remember if it was July 26 or at what at what time. MR. MANALICH: Okay. opaque or attempted opaque that your recollection, or of the correct? of the Do you believe they installed the fence at some point in July of '96? Is do you simply not recall those dates? Page 16 ..~ r September 30, 1996 MR. KIRBY: I don't -- I don't remember close enough. MR. MANALICH: Okay. Okay. With regard to -- there was mention about a CO that might have issued at some time in the past regarding this property. A couple of things. First of all, you checked the site development plan during this enforcement process; right? MR. KIRBY: Yes. MR. MANALICH: Okay. Did that site development plan require an opaque fence? MR. KIRBY: Yes, it did. MR. MANALICH: If a C the CO is issued, there often you said -- there is not a line item checkoff; correct? MR. KIRBY: Correct. MR. MANALICH: To your knowledge, was an opaque fence ever installed there, not a chainlink but an opaque fence ever installed there from the time of the CO through June of 1996? MR. KIRBY: We tried to retrace that ourselves, and the best we could find, we -- we got a one yes and a one no. One party said yes, there was an opaque fence installed but it was taken down, and then the inspector said that he doesn't remember whether or not -- he didn't -- he didn't look at that to even check it. MR. MANALICH: When did you start inspecting that property with regard to the opaque fence requirement more or less? MR. KIRBY: When the case was initiated. MR. MANALICH: Which is approximately when? MR. KIRBY: Actually no. I'm sorry. It was. I was in the beginning and then off of it for a while and back on. So when the case was begun we made a list of -- MR. MANALICH: Okay. During the course of those inspections that you made yourself personally, was that chainlink fence opaque? MR. KIRBY: No. MR. MANALICH: Okay. Did it ever become opaque during the course of your inspections? MR. KIRBY: No, it did not. MR. MANALICH: Okay. No further questions. MR. MURRAY: I have. You mentioned that one -- one party said yes, that there was a chainlink fence when the original CO was issued. Who was that party? MR. KIRBY: That was Mr. Allen. MR. MURRAY: Did he say that he took it down? MR. KIRBY: No. He just simply said that he installed it. MR. MURRAY: Is that the same J. D. Allen that's on this board? MR. KIRBY: The same. _ MR. MURRAY: I have nothing further. MR. MANALICH: No questions. CHAIRPERSON RAWSON: Thank you, Mr. Kirby. MR.. KIRBY: You're welcome. CHAIRPERSON RAWSON: Call your next witness. Page 17 MR. MURRAY: I would like to -- I'd like to call Mr. Grauel, Mr. William Grauel. THEREUPON, WILLIAM GRAUEL, a witness, having been first duly sworn, upon his oath, testified as follows: MR. MURRAY: the record again, MR. GRAUEL: MR. MURRAY: MR. GRAUEL: MR. MURRAY: employment? MR. GRAUEL: Naples. MR. MURRAY: this project for MR. GRAUEL: MR. MURRAY: in the marina? MR. GRAUEL: MR. MURRAY: occupancy? MR. GRAUEL: MR. MURRAY: everything? MR. GRAUEL: MR. MURRAY: completed? MR. GRAUEL: He signed inspection and lien waiver. MR. MURRAY: Okay. So he was paid 100 percent for everything. MR. GRAUEL: Yes. MR. MURRAY: Was -- the trees and the vegetation, was that all put in pursuant to the site plan? MR. GRAUEL: If a CO was issued, yes. MR. MURRAY: Okay. Was the fence in compliance at that time? MR. MANALICH: Objection. It's beyond the witness's legal competence, and it also calls for a legal conclusion. CHAIRPERSON RAWSON: Well, I think he probably doesn't know the answer if I'm reading his facial expression correctly. MR. GRAUEL: A chainlink fence was put in. CHAIRPERSON RAWSON: Okay. But I think the question was was that in compliance, and I_would agree that maybe that's a legal question he doesn't know the answer to and shouldn't answer. MR. MURRAY: That's fine. Do you have a certificate signed by Mr. J. D. Allen that all work was completed and that he was ready for his final draw? MR. GRAUEL: Yes. .~ ~ I September 30, 1996 Would you please state please. It's William H. Grauel. -And your address. 990 Nottingham Drive. And what is -- what do your full name for -- what is your Senior vice president of Barnett Bank in Okay. Were you involved in financing of Mr. Ackerman? Yes, I was. Okay. And who was the contractor that put J. D. Allen was the contractor. Okay. And did you obtain a certificate of Yes, sir. Was Mr. J. D. Allen paid in full for According to our records, yes. Okay. Did he sign that everything was yes. He signed a final draw Page 18 T September 30, 1996 MR. MURRAY: Okay. MR. GRAUEL: We don't -- go ahead. MR. MURRAY: Go ahead. I'm sorry. MR. GRAUEL: I was going to say we the dollars on the final draw until the MR. MURRAY: Okay. MR. GRAUEL: Sorry . MR. MURRAY: Were you aware that Mr. J. D. Allen ripped out all of the trees, ripped out all of the bushes, et cetera, because he said he wasn't paid and he wrote to this board and told them that? MR. GRAUEL: I wasn't -- I wasn't aware of that until way after the fact, after the CO was issued. In fact, it was quite some time that I learned of that. MR. MURRAY: Okay. To the best of your knowledge, all work was done, and he was paid 100 percent; is that correct? MR. GRAUEL: Correct. MR. MURRAY: Okay. That's all I have. MR. MANALICH: Mr. Grauel, just one question. You don't assert today that you have knowledge as to whatever private dispute there might be between Mr. Ackerman and Mr. Allen, do you? MR. GRAUEL: Do I have knowledge of that? MR. MANALICH: Yes. MR. GRAUEL: I know there's a conflict there, but I don't know any details on that. MR. MANALICH: Okay. No further questions. MR. MURRAY: We have no further questions. CHAIRPERSON RAWSON: Thank you, Mr. Grauel. You're excused. Next witness. MR. MURRAY: I'd like to call Mr. Stokes. THEREUPON, JOHN STOKES, a witness, having been first duly sworn, upon his oath, testified as follows: MR. MURRAY: Would you please speak into the microphone so they can hear you. MR. STOKES: Right. MR. MURRAY: Okay. name for the record. MR. STOKES: John S. Stokes. MR. MURRAY: Okay. And are you familiar with the property that Mr. Ackerman has that's in dispute here? MR. STOKES: Yes. MR. MURRAY: Okay. that property? MR. STOKES: I do progre~s in -- inspection -- construction progress inspections for Barnett Bank -- MR. MURRAY: Okay. MR. STOKES: -- in this particular for all banks, but I did it for Barnett MR. MURRAY: Okay. And did you do Please explain. don't actually issue CO is issued. Would you please state your full And what was your involvement in instance. I do it Bank in this job. the inspections of Page 19 ; September 30, 1996 Mr. -- Mr. Ackerman's property during the construction process? MR. STOKES: Yes. MR. MURRAY: And did you do a final inspection? MR. STOKES: Yes. MR. MURRAY: And, in fact, were you requested to do two final inspections? MR. STOKES: It was a -- I did a final inspection, and I was requested to come back as a consultant to -- to arbitrate disagreements, make sure that the points was agreeable and that of thing. MR. MURRAY: J. D. Allen? MR. STOKES: I just do the inspections. I don't really know when the payout is. MR. MURRAY: Fine. And then when did you do the final inspection? Do you have recall of that? MR. STOKES: Yeah. November the 23rd of 1992 I did the final inspection, and then I did that secondary or consultation inspection on December the 11th of 1992. MR. MURRAY: And was the property and the construction site in full compliance with the site development plan? MR. STOKES: Far as I knew, yes. I mean, according to my knowledge, yes. MR. MURRAY: And was there, in fact, a requirement for an opaque fence? MR. STOKES: Not to my knowledge. Now, that doesn't mean there wasn't. I just -- I just don't know of it. I -- I -- I have nothing -- no knowledge of it. MR. MURRAY: You had a site development plan. MR. STOKES: No, not necessarily. I have -- well, yes, I do. I see what you're saying. Yes, yes, we had -- we had a plan, surely. MR. MURRAY: plan? MR. STOKES: Far as I know. MR. MURRAY: Did the plan, in fact, require an opaque fence at that time? MR. STOKES: Not to my knowledge, no. I didn't -- I didn't see it there required. Of course, you have to understand a lot of times we get what is called a preliminary plan. A lot of times things are added after -- after we get -- after we get the plan or in some instances it's taken away. We don't care if they're added. But if they get taken away, then we get concerned. MR. MURRAY: When you did your final inspection, was a CO already issued? MR. STOKES: No. To my ~owledge -- well, I don't really know. I'm sorry. I'm saying something I don't know. See, I go out -- I get a call, and I go out, and I do my final inspection. Now, whether the CO is issued or not I don't really know. I turn in my inspection. And then it's my understanding that the bank takes care of the CO. I'm not responsible for the CO, lien waivers, or any then some kind And is this before the final payout to Mr. Was it in 100 percent compliance with that Page 20 -~ ~ ~ September 30, 1996 of that or even acceptance by the owner. I'm not responsible for any of that. MR. MURRAY: Okay. To the best of your recall, was your final report that it was in compliance completely with the site development plan? MR. STOKES: I don't state it that way. I just say -- I can tell you what my compliance what it says. MR. MURRAY: Fine. MR. STOKES: I'll look at the right report. In accordance -- this is to -- addressed to the president at the bank that -- she's no longer with the bank, but this is the president at the bank that I responded to. It says, in accordance with your request, I have completed an inspection of the construction progress of the above-mentioned property. Based on my own site inspection, I have concluded that as of this date the work required for the final inspection has been completed in substantial compliance with appraisal number -- and I give a -- 922517 with no changes or omissions from the data in the appraisal report that adversely affect any property rating or final estimate of value as stated in the report. And that's what I'm basically saying. It says, this inspection pertains to the basic completion of the building construction only. Acceptance by the owner, all waivers, releases, affidavits of liens, certificate of occupancy, final survey, et cetera, are not included in this inspection, and their satisfactory existence is not the responsibility -- sure. I'm sorry. I usually talk too slow. It's a south Georgia habit. This inspection pertains to the basic completion of the building construction only. Acceptance by owner, all waivers, releases, and affidavits of lien, certificate of occupancy, final surveys, and et cetera are not included in this inspection, and their satisfactory existence is not the responsibility of Appraisal Research Corporation of Naples or of this inspector. That's me. MR. MURRAY: Mr. Stokes -- MR. STOKES: You don't want me to read any MR. MURRAY: -- let me -- let me interrupt you. MR. STOKES: Sure. MR. MURRAY: If, in fact, an opaque fence had been required and they did not have it, would you have made this known to the bank? MR. STOKES: If I had known it -- if I had known it was required MR. MURRAY: Okay. MR. STOKES: -- and -- and I -- and it wasn't there, it's just like anything else. If it -- if it requires a roof on the building and the roof isn't there, that's what they hire me to go out and do. MR. MURRAY: Okay. I have no further questions. MR. MANALICH: Mr. Stokes, do you know for a fact whether there was an opaque fence there or not in -- when you did your inspections in November and December of '92? MR. STOKES: I can't say I know as a fact because I Page 21 r September 30, 1996 wasn't looking for an opaque fence. MR. MANALICH: Okay. Do you know -- after November, December of '92 to the present, did you ever check that again for an opaque fence there? MR. STOKES: No, sir. MR. MANALICH: Okay. No -- no questions. MR. MURRAY: Nothing further. CHAIRPERSON RAWSON: Thank you. You're -- wait. MR. LAFORET: I have a question. CHAIRPERSON RAWSON: Just a minute. I'm sorry. The board has the right to ask you -- MR. STOKES: I thought you said you CHAIRPERSON RAWSON: Well, I did, and I apologize. I apologize to the board actually because they always have the right to ask questions of any of the witnesses too. And one of our board members does have a question for you, Mr. Stokes. MR. LAFORET: Sir, you appear excuse me. You appear to me to be a very experienced con -- construction man. MR. STOKES: Yes, sir. MR. LAFORET: I've had a couple hundred years at it myself. Now, I don't know, and I'm not trying to put words in your mouth or anything. But when I made construction inspections, I made direct reference to architectural plan so and so, number so and so, and revision so and so. I made specific point of telling everyone before they read my report exactly what drawings I was looking at. And I think that's called COT, cover your tail, or something, CYT. And I did that for that reason. Now, as I understand from you, you said you had a set of plans that may have been preliminary plans that could have been changed throughout the construction; and, therefore, you did not comment on the fence as it wasn't on your set of plans. Do I understand from you correctly? MR. STOKES: That I didn't comment on the fence? MR. LAFORET: That you did not comment on the fence because -- MR. STOKES: Let me explain -- let me explain to you the type of inspection that I do. I do progress inspection. I don't do an engineering study. I don't do any engineering. I don't do any zoning. I don't do any code. I just do progress. Now, if -- I can do other inspections but not -- this is not that kind of an inspection. In other words, if -- if I'm hired to do a more detailed inspection, I can do a more detailed inspection, but that's not what I'm hired to do. I do -- this report here that you see is basically what I do. They send me an -- in this particular instance an AlA form. I go down the AlA form, and I determine -- they want to collect X number of dollars for such ~nd such a thing. I don't inspect whether it's done -- I don't even inspect whether it's done correctly. I do invol -- I mean un -- because in conscience just because I know, but that's not what I'm hired to do. I mean, I know what you're talking about. The kind of inspection you're talking about is more of a detailed engineering Page 22 ; September 30, 1996 report. Now, I do some of those but not for this -- this is not that kind of an inspection. There's a fee difference for one thing. There's a time involvement difference for one thing. I mean, quite frankly, at the time -- I don't know whether it's pertinent or not but you get -- I would charge probably 10 to 20 times more for the kind of inspection you're talking about than I charge for this inspection. MR. LAFORET: Yes, sir. I understand what you're saying to me. But let me ask you, if you'd have gone on site and you saw the shell of a building and you didn't expect -- inspect for electrical or plumbing or mechanical or any of these items contributing to the construction of a building that are not architectural responsibility, an architectural report specifies on the architecture his share. Now, how would you arrive at a point of progress, percentage of progress, if you didn't know if the building had an air conditioning system or a plumbing system or anything else? MR. STOKES: Well, I know that. I mean, it's -- when I say MR. LAFORET: Well, how do you arrive at your progress? MR. STOKES: Listen, let me ask you something. Are you here to check on my ability, or are you hear to check on this report? I -- I'm not -- I'm not interested in giving you any -- this kind of information. Now, if you want to meet me afterwards, I'll go over and I'll explain exactly how I do my inspections, and I can go into more detail if you want more detail. I looked at the plans. I get an appraisal. I make -- I make sure that when I get an AlA form and it calls for doors, windows, and glass and they want to draw $700, I can't -- I don't go out and itemize each one. I go and I see if the doors, windows, and glass are all there and if they are, I say fine. I don't -- I don't go and backcheck specifications to make sure whether it's a Peachtree, a Stanley, a Huttig, or -- or one of the other doors, you know, if that answers your question. Now, if they want if they want a more detailed inspection, I can give them a more detailed inspection, but they gotta pay me more money. MR. LAFORET: If I understand you correctly then, you say here in testimony that you did not make a detailed inspection of the plan. Yet you said the work was done in accordance with plans and specifications; is that correct? MR. STOKES: Yes, sir, basically. And that's what it is. I say it's basic -- it's a basic construction. I don't MR. LAFORET: Thank you, sir. MR. STOKES: I don't -- I don't -- I don't go in to to -- to MR. LAFORET: I know what you're saying. MR. STOKES: -- itemize your -- the way you say it. And I hope that satisfies what you were asking me. MR. LAFORET: I understand what you're saying. It doesn"t satisfy what I'm asking, but I understand what you're saying. Thank you very much. MR. STOKES: It may not satisfy your -- your world of Page 23 ~ ~ September 30, 1996 experience in in construction. I've only had 47 years in it myself. But, I mean, that's short of 100. MR. LAFORET: We're pretty close. MR. STOKES: Okay. MR. LAFORET: We're pretty close. I'm 77. MR. STOKES: Well, you got me by a few years but not too many. MR. LAFORET: Yes. Thank you very much. MR. STOKES: I wasn't trying to give you a short answer. I -- I don't know how else to answer you. I mean, I just don't -- I do many different types of inspections. But in this particular instance here, I do -- this is a -- these -- these are minimum inspections. These are -- these pertain to seeing that the bank is not paying for something that isn't there or -- or -- or prepaying something that they shouldn't be prepaying. It really hasn't got to do with the actual engineering or construction or -- by that the -- the technicalities of the construction. MR. LAFORET: You know there's an old expression in the judicial system. Quit while you're ahead. MR. STOKES: I quit. MR. LAFORET: Thank you very much, sir. MR. STOKES: I quit. Thank you. MR. MURRAY: I would like to re-call Mr. Ackerman. CHAIRPERSON RAWSON: Would you reswear him. He's been sworn but not today. THEREUPON, DEL ACKERMAN, a witness, having been first duly sworn, upon his oath, testified as follows: MR. MURRAY: Would you please state your full name for the record. MR. ACKERMAN: Del H. Ackerman. MR. MURRAY: Okay. Mr. Ackerman, you've testified here previously at the previous hearings. I want to ask you, in defending this action, you have hired apparently two different law firms. Can you tell for the -- for the board how much money you've spent in retaining attorneys to defend this action? MR. MANALICH: Objection. Not relevant. CHAIRPERSON RAWSON: I would sustain that unless you can show me how that's relevant to whether or not there's a violation and whether or not this board should impose fines. MR. MANALICH: I fail to understand, Madam Chairman. The issue is what amount of fines, if any, should be imposed. That is not linked, to my knowledge, to the amount of attorney fees that someone incurs. CHAIRPERSON RAWSON: I -~ I sustained the objection. MR. MURRAY: Mr. Ackerman, according to the Collier County Land Development Code, you should have an approval for your materials for your fence in advance. Were you told by anybody who you were to get that approval from? MR. ACKERMAN: Yes. One time -- one time I was approved ~ September 30, 1996 by Mr. Bolgar to put out the blackout. MR. MURRAY: No, no. After you appeared before the Board of County Commissioners -- MR. ACKERMAN: Yes, uh-huh. MR. MURRAY: -- and your request for a variance was denied, you then had to make your fence opaque; is that correct? MR. ACKERMAN: Yes, sir. MR. MURRAY: And under the county code, you were required to get the approval of a site development review director; is that correct? MR. ACKERMAN: Yes. MR. MURRAY: Who did you try to get that approval from? MR. ACKERMAN: I didn't get no approval on any material at all. I tried to work with Mr. Bolgar. MR. MURRAY: Is that who you thought you should get the approval from? MR. ACKERMAN: That's who I was told to go through. MR. MURRAY: Who told you that? MR. ACKERMAN: Mr. Saunders told me to work with Mr. Bolgar. MR. MURRAY: Did anybody else from the county board of commissioners tell you? MR. ACKERMAN: Well, I worked with Mr. Bolgar on the sprinkler system, and I worked with him on the bushes. And we went right on from there and took care of everything. MR. MURRAY: Okay. Did you work with him on the trees? MR. ACKERMAN: Yes, I worked on {sic} Mr. Bolgar on the trees. MR. MURRAY: All right. Did you work with him on the bushes? MR. ACKERMAN: Yes, I worked with him on the bushes. MR. MURRAY: You worked with him on all of the major violations; is that correct? MR. ACKERMAN: All the major violations I worked with him on, yes, sir. MR. MURRAY: Okay. You've already testified as to the time frame when you went with the sample and gave to him. Did he approve that sample? MR. ACKERMAN: No, sir. MR. MURRAY: Okay. And did he tell you he would get back to you and tell you what sample would be approval would be approved? MR. ACKERMAN: Yes, sir. MR. MURRAY: Okay. Did you call every month? MR. ACKERMAN: Abou t every two weeks. MR. MURRAY: Okay. And \4!ho made the phone calls? You or Mrs. Ackerman? MR. ACKERMAN: Mrs. Ackerman. MR. MURRAY: Okay. And did you leave messages? MR. ACKERMAN: Yes, sir. MR. MURRAY: Did you ever talk to him in person? Page 25 ~ ~ September 30, 1996 MR. ACKERMAN: Yes, sir. MR. MURRAY: Okay. Did Mr. Kirby come out and inspect during this period of time between January and May? MR. ACKERMAN: Yes, sir. MR. MURRAY: And did you or Mrs. Ackerman talk to him? MR. ACKERMAN: Yes, sir. MR. MURRAY: And did you tell him you were waiting to get approval of a sample, of some kind of sample from Mr. Bolgar? MR. ACKERMAN: We waited for samples for about seven months. MR. MURRAY: Okay. Did you tell Mr. Kirby that you were waiting -- MR. ACKERMAN: Yes, he knew that, yes. MR. MURRAY: -- for Mr. Bolgar to get back to you to tell you what would be accepted? MR. ACKERMAN: I was told by Mr. Kirby that Mr. Bolgar was working on the materials but they had not had the materials at the present time. MR. MURRAY: Okay. I have nothing further. MR. MANALICH: Mr. Ackerman, just a couple points, please. It was Mr. Saunders who told you to work with Mr. Bolgar on this matter? MR. ACKERMAN: It was Mr. Saunders that told me to work with Mr. Bolgar, yes. MR. MANALICH: Mr. Bolgar never stated, did he, that he is the site development review director? MR. ACKERMAN: No, no, sir. MR. MANALICH: As a matter of fact, Mr. Bolgar was merely trying to help you locate the materials that might assist you in coming into compliance; right? MR. ACKERMAN: I don't think so now, no. MR. MURRAY: Please just answer the question. MR. ACKERMAN: No. MR. MANALICH: Okay. Mr. Bolgar never stated, did he, that the county was responsible for installing that opaque fence, did he? MR. ACKERMAN: He stated that they were responsible for picking out the material I was to use on the fence. MR. MANALICH: Mr. Bolgar never stated, did he, that he would reduce the fines that might add up in your case; right? MR. ACKERMAN: Yes, he definitely did. MR. MANALICH: When did he say that? MR. ACKERMAN: He stated that about three weeks ago when he ordered me to put the blackout on. MR. MANALICH: And what did he say? MR. ACKERMAN: That if I.would take care of everything and get it done immediately that everything would be taken care of right in front of Mr. Weekley. MR. MANALICH: Okay. Did he mention the word fines in that conversation? MR. ACKERMAN: Yes, sir. Page 26 MR. MANALICH: that you just made. conversation? MR. ACKERMAN: MR. MANALICH: present? MR. ACKERMAN: He stated it like this: "In front of God and everybody, everything will be fine if you put out this blackout material." MR. MANALICH: compliance? MR. ACKERMAN: MR. MANALICH: statement that you fines for you? MR. ACKERMAN: I -- I thought that once I put the blackout -- we've been working on this since January. As the lady said up here, I'm tired of hearing it, and I think I am too. But I stated to them that back then -- we've been working since January on it, and all we wanted was one thing. They told us what bushes to put in. We put them in immediately; what type of sprinkler system. We put it in immediately. And all -- we're asking for one thing from whoever makes the decision, but I asked Mr. Bolgar, "What material do you want me to use on the fence?" And I put it up. MR. MANALICH: No further questions. MR. MURRAY: In your conversations with Mr. Bolgar, did did he approve the blackout, weed-out material? MR. ACKERMAN: He told me to get it up immediately. MR. MURRAY: Did you get it up immediately? MR. ACKERMAN: In 12 hours. MR. MURRAY: And did he, in fact, issue a certificate of compliance? MR. ACKERMAN: Yes, he did. MR. MURRAY: And then did somebody else come out and inspect and disapprove it? MR. ACKERMAN: No. I just received a letter from Mr. Arnold that he did not approve it. MR. MURRAY: Okay. Did you subsequently have a meeting with Mr. Arnold and Mr. Bolgar? MR. ACKERMAN: Yes, I did. MR. MURRAY: Okay. And what happened at that meeting? MR. ACKERMAN: I showed Mr. Arnold another material, and he said -- he approved it immediately. MR. MURRAY: Okay. And did you put it up immediately? MR. ACKERMAN: I -- they got the material in in ten days. And in three days, thr~e to five days, we had it up immediately. MR. MURRAY: Okay. Did Mr. Bolgar ever tell you to go to the site development review director rather than him in order to get approval for the material? MR. ACKERMAN: He -- he never told me about a site ~ September 30, 1996 Well, I didn't hear that in that quote Did he state it in some other part of the I've heard it several times, sir. Were there any -- was there anybody else Wasn't he referring that you'd be in I've always been in compliance. It's your interpretation then that that quoted him on meant that he was going to reduce the Page 27 .~ T September 30, 1996 development director, no, sir. MR. MURRAY: Okay. But you knew you had to get approval for that material before you could put it up; right? MR. ACKERMAN: Oh, yes. MR. MURRAY: Okay. I have nothing further. MR. MANALICH: No questions. CHAIRPERSON RAWSON: Thank you. MR. MURRAY: I would like to re-call Mr. Ackerman. CHAIRPERSON RAWSON: How many more witnesses do you have, Mr. Murray? MR. MURRAY: I think this will be the last one. CHAIRPERSON RAWSON: Okay. I was just -- MR. MANALICH: Madam Chairman, I don't know if I'm ready to object or not, but I just want to observe that this is somewhat unusual. We are within the case in chief, now re-calling witnesses. And I just question to what extent this is going to be cumulative. I mean, I'm willing to not object and wait and object if appropriate. But I just -- is this really necessary? I mean, we've heard from these witnesses before. Can they really tell us much more? CHAIRPERSON RAWSON: Well, in terms of the rules of procedure, they're relaxed on what -- as you know, in the Code Enforcement Board meetings. And so I'm going to allow him to re-call witnesses. But if you hear a question that's cumulative, you certainly are free to make that objection. MR. MANALICH: All right. Thank you. CHAIRPERSON RAWSON: I was just looking in the interest of time if, you know, we would need to have a break. But if she's your last witness, continue on. MR. MURRAY: Madam Chairman, this is the last witness. We need to go over some stuff because we had a new witness this morning; that is, Mr. Kirby who worked for the county. And -- and in conjunction with that, we we need to discuss a few things from the Ackermans' standpoint. CHAIRPERSON RAWSON: Go ahead. MR. MURRAY: Please state your full name for the record after you're sworn in. MRS. ACKERMAN: Do I have to be sworn back in? THEREUPON, NANCY ACKERMAN, a witness, having been first duly sworn, upon her oath, testified as follows: MR. MURRAY: Please state your full name for the record. MR. ACKERMAN: Nancy Ackerman. MR. MURRAY: Okay. Mrs. Ackerman, you've already testified under oath at this Qearing, and there's only a couple of points that we need to go over in light of Mr. Kirby's testimony. How many times did Mr. Kirby come in between January and May to inspect the fence to determine if it was opaque as best you can recall? MRS. ACKERMAN: He was in maybe four or five times. MR. MURRAY: Okay. Did he ever talk to you when he came Page 28 ",".. ~ ~ September 30, 1996 in? MRS. ACKERMAN: Once or twice he did, yes. MR. MURRAY: Okay. And did he ask you why you haven't made the fence opaque? MRS. ACKERMAN: Well, one time he did. The other time he said he knew that Mr. Bolgar was looking for something and they didn't have a spec. on it yet. I mean, we had a spec. on everything else, but I had no -- since they refused the samples we took, it was kind of up in the air since no one else had one to compare it to. MR. MURRAY: Did you tell Mr. Kirby that you, in fact, were waiting for word from Mr. Bolgar? MRS. ACKERMAN: Yes, sir, I did. MR. MURRAY: Okay. MRS. ACKERMAN: He knew that. MR. MURRAY: How much money did you spend on ultimate fence that, in fact, was produced? MRS. ACKERMAN: The second one they approved MR. MURRAY: Yes. MRS. ACKERMAN: -- or the first one? MR. MURRAY: First the first one. MRS. ACKERMAN: The first one? MR. MURRAY: Yes. MRS. ACKERMAN: I think My husband paid for it. I'm MR. MURRAY: Okay. And second fence? MRS. ACKERMAN: Four thousand. MR. MURRAY: Okay. MRS. ACKERMAN: And they've both MR. MURRAY: When Mr. Kirby came you, did it cause you to do anything? anything? MRS. ACKERMAN: Well, I always kept in contact with Mr. Bolgar. There was no one else to be in contact with. MR. MURRAY: Okay. Were you under the impression you had to have his approval before you could put the material on the fence? MRS. ACKERMAN: Yes. MR. MURRAY: And is that what you were waiting on and that's why you didn't do it? MRS. ACKERMAN: Yes. MR. MURRAY: Okay. I have nothing further. MR. MANALICH: No questions. CHAIRPERSON RAWSON: Thank you, Mrs. Ackerman. MRS. ACKERMAN: Thank you. CHAIRPERSON RAWSON: Any.more witnesses? MR. MURRAY: We have no -- nothing further. MR. MANALICH: Madam Chairman, at this point could I respectfully request a ten-minute break prior to deciding whether we are going to have any rebuttal? CHAIRPERSON RAWSON: That's fine. The Code Enforcement on the it was around -- around 1,500. not how much did you pay for the been approved. in and checked with Did you call Mr. Bolgar or Page 29 ~ September 30, 1996 Board will be in recess till -- what's that say? Ten o'clock? MS. LOUVIERE: Yeah. CHAIRPERSON RAWSON: 10:15. (A short break was held.) CHAIRPERSON RAWSON: The Collier County Code Enforcement Board will come back into session. Before we took our recess, I believe Mr. Murray was going to either call another witness -- no. You had rested. Mr. Manalich, are you going to do any rebuttal? MR. MANALICH: One witness, Madam Chairman. Wayne Arnold. THEREUPON, DONALD WAYNE ARNOLD, a witness, having been first duly sworn, upon his oath, testified as follows: MR. MANALICH: Please state your name for the record. MR. ARNOLD: Donald Wayne Arnold. MR. MANALICH: Mr. Arnold, you've testified previously in this matter. I just want to ask a few questions regarding the testimony of the witness presented by the respondent, that witness being Mr. Schwartz. I think you were present for his testimony. He was a fencing contractor as I understood it. MR. ARNOLD: Yes. MR. MANALICH: And he referred to having been involved in a number of county contracts. Is there a distinction between those county contracts and the material and the purposes that we're talking about at this site that is in this case? MR. ARNOLD: If my recollection serves me, that -- his applications were primarily county recreation contracts. And I would suggest to you that the material that's appropriate to screen tennis courts -- MR. MURRAY: I'm going to object unless he knows precisely what contracts we're referring to. MR. MANALICH: Well, their witness I believe even referred to -- let me see if he specifies here what type of county contracts, but I can also rephrase the question. CHAIRPERSON RAWSON: What -- let's rephrase the question and maybe get some more background so we know exactly what Mr. Arnold is testifying about. MR. MANALICH: Well, specifically Mr. Arnold, I'm referring to page 75 of the transcript of the previous proceeding. You don't need to look at that, but just for everyone's information, in there Mr. Schwartz says he's a supplier for county contracts and referring to fencing materials. And later in his testimony he goes on to talk about opaqueness and the variable nature of that requirement. And is it not true that many county contracts do have to deal with recreational facilities such ~s tennis courts? MR. MURRAY: I'm going to object again. He's trying to limit it to county contracts dealing with recreational facilities, and I don't think that was his testimony. In fact, he just read it, and it said generally county contracts. So unless we know what we're talking about, I'm going to object to him testifying about it. Page 30 ~ September 30, 1996 CHAIRPERSON RAWSON: Well, I think MS. DEIFIK: Page 75 refers to the Avalon Elementary School. CHAIRPERSON RAWSON: Well, I think back to his question, his question specifically asked him isn't it true that some county contracts refer. He can answer that question. MR. MANALICH: A number of county contracts -- we don't know exactly how many -- but a certain portion deal with recreational school facilities; right? MR. ARNOLD: That is correct. MR. MANALICH: And they -- typically, for instance, tennis courts will have some type of material placed on the fencing; correct? MR. ARNOLD: That's correct. We typically see a screening material to separate tennis facilities. MR. MANALICH: Now, in light of Mr. Murray's objection, let's not focus on those contracts since his witness wasn't specific either. Let's instead talk about this particular site. What type of opaqueness does the zoning require for this site? MR. ARNOLD: The zoning code requires that outdoor storage facilities have an opaque fence requirement. And in that it does not specify the amount of opacity, but it does indicate that they must be opaque. And if you go to the fence requirements that are in our Collier County Land Development Code, it indicates not only where it talks about conditions and standards, but that's where this becomes almost a two-part issue. Not only are we dealing with the opacity of that material but the construction type and whether or not it can be maintained. MR. MANALICH: Okay. And you were at this site for an inspection; correct? MR. ARNOLD: I visited the site a number of times, yes. MR. MANALICH: And what was your most recent visit? MR. ARNOLD: Most recent visit was approximately perhaps ten days ago. It was after installation began with this woven plastic vinyl material through the chainlink fence. MR. MANALICH: Are those commonly known as slats? MR. ARNOLD: That's what we refer to as slats, yes. MR. MANALICH: Okay. And was it your determination or the county's determination that the fence is now in compliance as to opacity? MR. ARNOLD: I'm not sure if a compliance certificate has been given on that. I do know that the material that they were using the day I visited the site, there was a small segment of fence that had not been completed. I have been informed that they did complete that work. MR. MANALICH: And once 9ompleted, in your estimation, will that then meet the opacity requirement? MR. ARNOLD: Yes, sir. MR. MANALICH: Okay. Contrast if you would, please, those slats that you saw recently with the material that was previously installed when you inspected the site. Page 31 ~ September 30, 1996 MR. ARNOLD: The material that was installed, we viewed at least through a brochure with Mr. Murray and Mr. Ackerman I'm not sure of the exact date but probably four weeks ago this material. And it was shown in commercial and industrial applications. It showed that it was woven through the material, it interlocked at the top and bottom which would stabilize not only that material but would keep it from, I guess, coming loose and -- and -- which was one of the concerns one of my initial site visits after the block-out material was installed that it was not -- did not appear to be fastened in any type of fashion that lent itself to, I guess, a sturdy application. It was torn in some places from what I -- apparently was being wind blown. It was held up in places with wooden slats and almost propped up in places. And in some places it had blown over the fence, and there was no opacity from that material. And certainly the material that's been installed to date, these vinyl slats, they are and I think -- I have photographs in my briefcase and I think Mr. Bolgar may have some photographs as part of the case record of what's now been installed which is something that we see typically throughout Collier County and is an acceptable screening material. MR. MANALICH: You are the person charged with interpretation of the codes; correct? MR. ARNOLD: That is correct. MR. MANALICH: As part of your interpretation of the code as related to this particular case, does the zoning contemplate with regard to this opaque fence anything regarding how it affects the surrounding neighborhood? MR. ARNOLD: Yes, it does. The code specifies in some of the fence conditions that it cannot detract from neighborhood conditions. MR. MANALICH: So is it correct then that based on your testimony there's three prongs of this opacity requirement; that is, that sound building materials be used, that it be opaque, and that it not detract from the neighborhood? MR. ARNOLD: That's correct. MR. MANALICH: And those three requirements appear to have been met most recently on your last inspection; correct? MR. ARNOLD: Correct. MR. MANALICH: They were not met previous to that; correct? MR. ARNOLD: Correct. MR. MANALICH: No further questions. MS. LOUVIERE: I would like to say -- MS. DEIFIK: What-- CHAIRPERSON RAWSON: Cross-examine? MS. DEIFIK: What were those three things? MR. MANALICH: Opacity, not detracting from the surrounding neighborhood -- MS. LOUVIERE: And sound building -- sound building and inst MR. MANALICH: -- and sound building materials. Page 32 ~ September 30, 1996 MR. MURRAY: Mr. Arnold, section of the Collier County Land Development Code section two point two point one five and a half point six -- and I quote -- said fence or wall shall be opaque in design and made of masonry, wood, or other materials approved by site development review director, who exactly is the site development review director? MR. ARNOLD: It's my contention that I am the site development review director. MR. MURRAY: Is that spelled out in any writing anywhere? MR. ARNOLD: You will find a reference to the site development review director in our Land Development Code. It does not say that I am that person, and my title is currently not site development review director. If you review the, I guess, job specs. that are listed in our Land Development Code, I have assumed those responsibilities, and I also have interpretive power of the Land Development Code. MR. MURRAY: Okay. Do you recall that you and I had a discussion about this at the meeting with yourself, Mr. Bolgar, Mr. and Mrs. Ackerman and myself? MR. ARNOLD: I recall that. Yes, I recall that conversation. MR. MURRAY: Okay. And do you recall when I asked you who the site development review director was you said there was none anYmore; I have assumed those responsibilities? Do you recall that? MR. ARNOLD: Yes, I recall it. There is no title in our organizational chart of site development review director. MR. MURRAY: What exactly is the duty of a supervisor of code enforcement inspectors? MR. ARNOLD: I don't know. I don't work in that department, sir. MR. MURRAY: I see. Mr. Bolgar, would it be possible that he has some of the same duties, or is that not -- you have no idea about his duties? MR. ARNOLD: I know generally what his duties and responsibilities are, but I don't believe that our duties necessarily overlap. MR. MURRAY: Okay. You mentioned that your major duty was interpretation of the code; is that correct? MR. ARNOLD: Yes, sir. MR. MURRAY: Does Mr. Bolgar do any interpretation of the code? MR. ARNOLD: I think they are sort of -- in my opinion they're out in the field making calls on a day-to-day basis. They are MR. MURRAY: So they're ~nterpreting on a day-to-day basis? MR. ARNOLD: They're interpreting with our -- we -- we in planning department consult on a daily basis with code enforcement staff on many notices of violation, et cetera, not on all but on -- very, very frequently we are doing that. Page 33 ~ September 30, 1996 MR. MURRAY: You know that Mr. Bolgar interpreted the regulations and issued a certificate see -- and issued a certificate of compliance as far as the opaque material added on the fence. Was that outside the realm of his scope of responsibility? MR. ARNOLD: I hesitate to say that was outside the realm of his responsibility, but I believe that the material that was used does not meet the intent of the code. MR. MURRAY: Okay. So he had authority to issue that, but you have authority to disagree with him. Is that what you're saying? MR. ARNOLD: I don't know if that's the only way I would characterize that, but I guess you could characterize it that way, yes. MR. MURRAY: Okay. Are you the final arbiter of what is in compliance with the code? MR. ARNOLD: At an administrative level, yes, but the Board of County Commissioners has authority to override a decision that I may make. MR. MURRAY: I see. Since we're talking about job descriptions and responsibilities, should Mr. Bolgar have referred the Ackermans to you for approval of their material? MR. ARNOLD: Initially my staff was involved. Mr. Mulhere, whom you've heard testimony regarding, had met at least on one occasion, if not others, with Mr. Bolgar and staff trying to determine what a material -- what material would be acceptable. I don't know what more recent involvement other staff other than myself would have had. MR. MURRAY: Okay. Now, would Mr. Mulhere have authority to make that interpretation? MR. ARNOLD: He is directly under the supervision of me in dealing with his -- he has zoning authority and zoning powers. He has those powers only as I would designate to him. MR. MURRAY: Okay. Did he check with you on the initial turn-down of the material and the disapproval of the material that Mr. Ackerman bought? MR. ARNOLD: Yes, he came back to me after a meeting and indicated that they had some screening material that was not in his opinion opaque and that was not acceptable. MR. MURRAY: Okay. But he didn't check with you before he made that interpretation; is that correct? MR. ARNOLD: I don't believe he was making a formal interpretation, and I guess that's another thing I should point out. There are procedures spelled out in the code about how you get a formal interpretation from this office. MR. MURRAY: Okay. And did Mr. Bolgar -- do you know if he knew about those formal prqcedures? MR. ARNOLD: I can't say. MR. MURRAY: In attempting to assist Mr. Ackerman in coming up with a material that would be satisfactory and that would meet the requirements of the code, would that be within the scope of emploYment for Mr. Bolgar for his job? Page 34 T September 30, 1996 MR. MANALICH: Objection to this line of questions. I don't think Mr. Arnold is a development services director who is charged with identifying and outlining the responsibilities of different departments. He can testify to his own responsibilities. But beyond that, I think it's beyond the scope of his knowledge. CHAIRPERSON RAWSON: Well, yeah. I guess he can answer the question. I won't sustain the objection. But you can answer the question if you know. And if you don't know, you can say you don't know. MR. ARNOLD: Could you please restate the question? MR. MURRAY: Is it within the scope of emploYment for Mr. Bolgar to attempt to assist Mr. and Mrs. Ackerman in the interpretation of the code so that they could find an acceptable material? Is that within the scope of his emploYment or his authority? MR. ARNOLD: If I might, I don't think you can get a yes or no to your question because in the matters of interpretation I would say no. Is it part of his job responsibility to help people try to find solutions to their problems? Absolutely. MR. MURRAY: Okay. Mr. Arnold, the code says that you gotta get the materials approved by the site development review director, and obviously there is none. Is there any in existence, site development review director? MR. ARNOLD: There is no person with that title on our organizational charts at this time. MR. MURRAY: Is there any way for an ordinary citizen such as Mr. Ackerman to find out who that -- who that would be? MR. ARNOLD: If the question were asked, I think that a person could be referred to -- obviously through our administrator who is the ultimate person in community development issues. But certainly if you read the section of the code pertaining to the site development review director's responsibilities, I think you also find them under my title as well. MR. MURRAY: Okay. But Mr. Bolgar's entitled to go out and inspect. And if it doesn't meet this requirement according to his interpretation, he can cite them, can he not? MR. ARNOLD: Yes, he can. MR. MURRAY: Does everybody in the entire division know who the site development review director is? MR. ARNOLD: I don't know if everyone in the division knows that. MR. MURRAY: After you had a meeting with the Ackermans and approved the material that they presented, did they comply promptly and make the fence opaque? MR. ARNOLD: They had indicated that the fence contractor indicated a certai~ number of days to order material and then install. And to the best of my knowledge, they complied with that as they indicated they would. As soon as the materials were here, I received calls from Mr. Ackerman and the fence contractor indicating that they were proceeding with -- with work. MR. MURRAY: Okay. In -- in your discussions or Page 35 . .;~ ~ September 30, 1996 relationships with the Ackerman, have they ever expressed a -- an interest in not complying with the code? MR. ARNOLD: No, they have not. MR. MURRAY: Okay. I have nothing further. MR. MANALICH: Very briefly, Mr. Arnold, let's make this simple. If someone has a question about how the codes are interpreted and apply to their property, they can call over to development services and get directed to the proper person in planning, perhaps even yourself? MR. ARNOLD: That's correct. MR. MANALICH: No further questions. CHAIRPERSON RAWSON: Do you have any recross? MR. MURRAY: Shouldn't a supervisor in the inspection department be able to refer him to the right place? I mean, he did that; right? MR. ARNOLD: Again, I'm not sure that I can answer that question. I don't know. MR. MURRAY: Withdraw the question. I have nothing further. CHAIRPERSON RAWSON: Thank you. MR. LAFORET: I have a question. MS. LOUVIERE: I have a question. CHAIRPERSON RAWSON: I'm sorry. MR. LAFORET: I think she was first. CHAIRPERSON RAWSON: Apologize to the board again. Any questions from the board? MS. LOUVIERE: I wanted to ask -- I want to just go back and visit some -- revisit some things. First thing is we have a -- a C-5 use there with surrounding C-3 use, and that's why you put that stipulation for an opaque fence; right? This was not something that you just decided somebody's pushing you, somebody's contacting you. I mean, you have a C-5 use with outside storage surrounded by C-3 use, and that's why the stipulation was based on this site development plan to install an opaque fence. MR. ARNOLD: That's correct. C-5 zoning district specifies that you shall have an opaque fence. MS. LOUVIERE: Okay. Thank you. The other thing is there seems to be a lot of issues here as to what constitute opaqueness, and you said that the Land Development Code is very specific as to a written interpretation of our LDC. And at any point the Ackermans could have followed that procedure; is that correct? MR. ARNOLD: That's correct. MS. LOUVIERE: And they did not. MR. ARNOLD: They filed no request for interpretation. MS. LOUVIERE: Thank you. MR. LAFORET: I have a ~estion, sir. MR. ARNOLD: Yes, sir. MR. LAFORET: I've heard several references to the fencing, and one of the reference has been an opaque fence. The other reference has been an opaque chainlink fence. Now, I -- I assume that in view of the fact a chain -- an opaque chainlink fence was approved Page 36 T September 30, 1996 for this project that there is such an animal or that there was such an animal. MR. ARNOLD: Yes, sir. I believe they have one installed today. MR. LAFORET: Today. such an animal? MR. ARNOLD: In my opinion, no, there was not, not installed on their site. MR. LAFORET: Are you suggesting, sir, that you approved an -- a chainlink fence that nobody knew if such a thing was possible at the time it was approved? MR. ARNOLD: Their -- their 1992 site plan indicated that they would have -- MR. LAFORET: I can't hear you, sir. MR. ARNOLD: Their 1992 site development plan indicated that they would have a six-foot-high opaque fence. We didn't specify material, nor does our code specify that material. MR. LAFORET: But we have seen a drawing that was approved that specified an opaque chainlink fence. Now, are you suggesting that at the time this drawing was specified there was no such thing as an opaque chainlink fence? MR. ARNOLD: Not installed on their property. They could have made a chainlink fence opaque. They did not. MR. LAFORET: It was installed properly? MR. ARNOLD: No. I said it was not installed properly. There were no slats or other material which blocked your view through the chainlink fence at the time they installed that fence. MR. LAFORET: Ah, good. Now, it appears to me that for a considerable period the -- MS. DEIFIK: Where's the pictures? MR. LAFORET: -- respondent I guess it is here, the respondent tried to get this information as to what is proper but without success over a period of time. Is this correct? MR. ARNOLD: That appears to be what I'm hearing in the record as well, yes. MR. LAFORET: I thank you, sir. MR. ARNOLD: Thank you. MR. MURRAY: I have redirect. CHAIRPERSON RAWSON: Go ahead, Mr. Murray. MR. MURRAY: Or recross. You mentioned that -- that there was no request for interpretation. Would not his asking of Mr. Bolgar since there is no, quote, unquote, site development review director, since there is no label for anybody, is not a request of Mr. Bolgar as to what is satisfactory, wouldn't that constitute a valid request under the procedure you've referenced? MR. ARNOLD: No, sir. MR. MURRAY: Okay. And what would he have to do to have a valid request procedure? MR. ARNOLD: Our Land Development Code established in section 1.6 of the code. It for interpretation. There's a filing fee. How about six months ago was there has procedures calls for written request There's a 45-day review Page 37 -;t ~- ~ September 30, 1996 period in which I must render an interpretation. That decision is appealable to the Board of Zoning Appeals. MR. MURRAY: Okay. Did your people when they turned down the request -- when Mr. Mulhere turned down the request for approval on the sample, did they tell him the proper procedure to go through? MR. ARNOLD: I don't know. I was not present at that meeting, sir. MR. MURRAY: Did you tell him when -- you said he brought them in to you to see before he turned it down. Did you say, "Tell Mr. Ackerman to do the proper procedure"? MR. ARNOLD: No, sir. MR. MURRAY: Okay. I have nothing further. MR. MANALICH: One more question, Mr. Arnold, in response to that. You heard the testimony of Mr. Saunders who is a former county commissioner, attorney at law, represented Mr. Ackerman in the initial stages of this case and actually through fact finding; correct? You heard that? MR. ARNOLD: Yes, I did. MR. MANALICH: Okay. Would not Mr. Saunders, in fact, know MR. MURRAY: I'm going to object as MR. MANALICH: -- what the procedures are? MR. MURRAY: -- as that not being relevant to this hearing. I was not present. I didn't hear it, and I have no idea what he's talking about. MR. MANALICH: Well, his own client stated that Mr. Saunders was the one representing him if I recall correctly. CHAIRPERSON RAWSON: Well, he did testify that Mr. Saunders told him to see Mr. Bolgar. MR. MANALICH: My only question of Mr. Arnold is does not Mr. Saunders, a land use attorney, former county commissioner, know that there exists that provision in the county code. MR. ARNOLD: I don't know whether he knows that that provision's in the code or not. MR. MANALICH: As a matter of fact, he's probably heard some of those before as a county commissioner, didn't he? MR. MURRAY: I'm going to object as speculation. CHAIRPERSON RAWSON: I think it's probably speculative, and it's pretty difficult to know what Mr. Saunders knows. MR. MANALICH: All right. Withdraw the question. Thank you. MR. MURRAY: I have nothing further. CHAIRPERSON RAWSON: Any -- thank you, Mr. Arnold. Any further rebuttal from the county? MR. MANALICH: None. CHAIRPERSON RAWSON: Both sides rest? MR. MANALICH: Yes. CHAIRPERSON RAWSON: What I would like to do is have brief closing arguments, and I would ask both attorneys to please hone in on the issues and specifically tell us what relief you are Page 38 ~ September 30, 1996 seeking. This is before this board on a motion for order imposing fines. So if you would specifically tell us what relief you are seeking at the end of your summary, we would appreciate that. MR. MANALICH: Thank you, Madam Chairman, members of the board. Thank you for your patience in listening to this rather long exercise. I assure you, though, it was important to both parties. Basically I'm here to tell you that I believe that -- on behalf of the county that the county has delivered on its promise to present the relevant testimony of Bill Bolgar and Wayne Arnold from county development services staff so that you would be in the best position along with hearing the defense -- the respondent's witnesses to determine what amount of fine, if any, should be owed from the respondents. If you will recall, this is a matter that came before you in 1995. The respondent admitted to the violation with counsel present and agreed to the very compliance terms that are now at issue today. The relevant time period appears to be from January 26 of 1996 to September 16 of 1996. Those dates I select -- MS. LOUVIERE: You said January 26 or January 25, 1996, that required compliance? MR. MANALICH: Well, I thought they had through the 15th, so I thought I'd start on the 16th MS. LOUVIERE: Okay. MR. MANALICH: -- as the compliance date. MS. LOUVIERE: All right. MR. MANALICH: And it's my understanding that the slatted fence was -- was placed on the property on or about September 16. And obviously if I'm incorrect, you know, someone can point that out in -- in response, but I believe those are the correct dates. You'll recall from the order that the rate of the fines were $150 a day. Now, I'm not going to mislead you, and we haven't. I told you in my opening statement and I'll reaffirm here today in closing that there has been some confusion regarding the nature of the fencing material that was required for opacity, and you've heard conflicting testimony. However, it's clear that the respondent was given months to pursue a variance first, and then the order provided that he had the responsibility of installing the opaque fence if the variance were denied which it was. That variance was denied by the Board of County Commissioners in early January. MS. LOUVIERE: And they had to be installed within 15 days. MR. MANALICH: That is my recollection of the order. Now, Mr. Bolgar candidly testified to you that he perhaps in a good faith, perhaps misguided at sometimes effort to assist the respondents did attempt to have dialogue with them and attempt to assist them in selecting the material that would meet the opacity requirement. He admitted that he might have held the first material presented to him which was the green material that was obviously see-through -- it was the type of material you would see on -- on tennis courts or whatever. It wasn't the black that came later Page 39 T September 30, 1996 but the green -- that he might have held that for up to 30 days. Now, the respondent did not install anything after Mr. Bolgar told them that the first material was not acceptable. And basically nothing was installed until July of 1996. There is conflicting testimony as you heard regarding the nature of the contacts in that time frame. However, Mr. Bolgar has testified that he at no time indicated to the respondent that fines were being suspended or in any way erased. And he in no way stated that the county was taking on the responsibility of installing an opaque fence. He simply tried in good faith to assist with the effort. Now, in July of 1996, the testimony indicates that Mr. Bolgar was met at his office and in a quick conversation was shown material on a roll. Mr. Bolgar indicates that when he examined this material in this quick conversation, it appeared to him to be -- it was a black type of material that's frequently used at nurseries and other types of sites and perhaps on fences in commercial settings but that it was a thickness that was greater than he realized at the time. Once it was unrolled apparently it was much thinner, and therein was the problem. The respondent then in good faith to his credit went ahead and installed this material. But as you heard later on when that site was checked, you heard the testimony of Mr. Arnold, of Mr. Gebhardt who's representing the complaining surrounding neighborhood persons, and they all indicated through you -- through their testimony as well as through pictures that, quite frankly, that black material when unrolled was not as thick as Mr. Bolgar thought it was in his office. And it was somewhat transparent and that it was not installed nor manufactured in a manner that was of sound building quality and that would not detract from the surrounding neighborhood which, as you notice from the zoning, is a mixed use of residential, office, et cetera. Now, it became abundantly clear in this whole testimony that you've heard that really Mr. Arnold was the one that had the final interpretive ability with regard to the opacity and fencing requirements. And he made it very clear in his last rebuttal testimony that we really are looking here at opacity plus, that is, opacity plus the not detracting from the neighborhood and sound building quality. And you heard very clearly from Mr. Arnold that that was not achieved until September. Now, I think it's significant that Mr. Ackerman, first of all, like any citizen could have contacted any supervisory authority beyond Mr. Bolgar or in addition to Mr. Bolgar with regard to interpretation. And I would submit that if he had counsel, which he apparently did throughout this process, that could have also been done. Now, very clearly Mr. Bolgar never excused from compliance or promised a return of fines, nor did he promise the county would install. He simply made a good faith attempt to assist him in the location of the materials. Now, it must be kept in mind in this entire exercise that obviously our goal here is not to punish Mr. Ackerman. He's come Page 40 -~ ~ September 30, 1996 into compliance. He's testified and we recognize that he's made some attempts at compliance in working with Mr. Bolgar. However, it's very important also to recognize that it is the respondent's own site development plan which four years ago recognized the need for an opaque fence. They undertook that responsibility willfully. Blame shifting in this whole situation can only account at best for discounting parts of the relevant time here as I see it or as the county sees it. Basically things that you could perhaps discount or take into account would be the 30 days that Mr. Bolgar admitted he held the first material. You might look at the cost on two occasions of installation that were incurred by the respondent. You can also look at whether -- once the meeting was held in July where the roll was shown to Mr. Bolgar and attempted compliance occurred through the present where they've now installed the slatted fence, whether that time period should be considered or thrown out. But the one constant in this entire process and we leave that -- frankly, it's the code enforcement director's position that you are in the best position having heard all of the evidence that's been presented to you as to what, if any, fines should be imposed here and what distinction should be made in the time periods I referred to. But the one constant in the process is that the site development plan and the order all put the burden very clearly on the respondent to take the affirmative action to meet the opacity requirement. We believe some fines, whatever you deem appropriate, are needed because they are eventually what did cause compliance. I would note that the roll of material that was shown to Mr. Bolgar and installed only occurred shortly before our July hearing date. So we would submit that not only in this case but in other cases as well the precedent that you need to set is that these orders need to be taken seriously and that you will recognize possibly hardship situations or problems but that some fine is necessary because it is warranted in this case. I thank you for your attention. CHAIRPERSON RAWSON: Thank you. Mr. Murray. MR. MURRAY: Madam Chairman, members of the board, let's see if we can just -- we're just going to have a little talk. I got a client who tried to come into compliance. He went and financed the project when he could have paid cash for it because he wanted the bank to go inspect everything and make sure he was in compliance because he knew they wouldn't pay unless he was in compliance, and he was issued a CO. Mr. Allen repossessed everything apparently even though he signed documents indicating he had done everything and he was paid 100 percent of what he was du~. Okay, fine. And Mr. Grauel from the bank testified to that. The fact of the matter is he had shortcomings. He had to go out and buy trees. He had to buy bushes. He had to to put in a sprinkler system. He had to put in an opaque fence. He never tried not to do it. Page 41 ~- ~ September 30, 1996 He had a meeting with Mr. Bolgar called by Mr. Bolgar, and -- and he had a meeting with myself, with Mr. and Mrs. Ackerman, Mike Kirby, and Bill Bolgar. We went through the entire site plan down to the nitty-gritty, how wide the trees had to be, how big the bushes had to be, how big everything had to be, down to the nitty-gritty detail. He did all of that. He asked for a variance, and this board was kind enough to grant him an opportunity to go in front of the Board of County Commissioners to ask for a variance. He did that. He was turned down. Within the 15 days he went to see Mr. Bolgar to get it approved. Why did he do that? Because under the code he had to do that. It wasn't optional. Now, we say, well, he didn't go to the right one. He didn't go to Mr. Arnold. Mr. Arnold testified that Mr. Mulhere works for him and has the same authority. He went to Mr. Bolgar. Mr. Bolgar went to Mr. Mulhere, so the fact is he went to the right place. The code says site development reviewing officer. There is none. There's none that exists. Mr. Arnold says, "I have those authorities, and I have those powers." Well, he went to Mr. Bolgar. Mr. Bolgar took the sample to those people, so they were involved right from the get-go. Now, Mr. Ackerman and Mrs. Ackerman testified that he said, "Yes, I will let you know what it is." Now, ordinarily it's his word against their word, and you got Mr. Bolgar saying, oh, after 30 days, that's on them. That's not on us. But then you heard the testimony of Mike Kirby. Mike Kirby comes in and says, "A number of times I went in there to do an inspection to see if the fence was opaque, and Mrs. Ackerman told me she was waiting on an answer from Mr. Bolgar." Now, keep in mind Mr. Bolgar apparently is working hand in hand with the right people. He's working with Mulhere who works for Arnold. Now, if they didn't want him to use that, if they -- if they didn't want to use the informal method and get the approval that they needed, tell them. He was told by the board to do it, and he was trying to do it. Mrs. Ackerman made phone calls every month. She wanted to get it done. This is corroborated by the testimony of that she wanted to get it done was corroborated by the testimony of Mike Kirby. She volunteered every time he came to inspect, "I'm waiting on an answer from Mr. Bolgar." Even after Mr. Bolgar says, "In front of God and everybody __II you heard that from the testimony of Mr. Ackerman, and you heard it from Mr. Weekley who was present. "In front of God and everybody, this is okay." He puts it up. He issues an af -- they didn't just put it up. They put it up and they inspected. He had inspectors come out and take photographs of it. He didn't just look at it and decide it was too thin. They installed it. They sent the inspectors out. They took photographs of it, and -- and Mr. Bolgar testified to that, and he also issued a certificate of compliance. But guess what? Even that wasn't right. The fact of the matter is Mr. Arnold went out and took a look at it, and he decided it didn't line up. We had a meeting. Mr. Page 42 T September 30, 1996 Ackerman, Mrs. Ackerman, myself, his tenant had a meeting with Mr. Arnold. Mr. Arnold approved a certain material, and it was installed. Maybe from whence you come they speak of little else, but I don't know many laYmen who actually know the proper procedure. It occurs to me -- and I don't want to go way out on the limb on this -- that -- that when you talk to a supervisor in code enforcement and inspections and enforcement that you're talking to the right person to find out if what you're doing is going to meet the requirements or he's going to pass you or fail you especially if, in fact, he goes and he talks to Mr. Arnold's people and he's working hand in glove with them. It seems to me like there's almost a presumption that you did the right thing and you're at the right place and you're talking to the right people. The site development, it requires. It's not optional. They're not delaying because they don't want to do it. It is not optional. The material said other materials have to be approved by the site development reviewing officer. Mr. Arnold says that's him and by delegation or -- or natural whatever, the people who work for him. Okay. Fine. He was read into the loop on this problem. And Mr. -- Mr. Bolgar who is a supervisor of inspectors is working with him, and he's also working with the -- the Ackermans. What relief are we seeking? We would like not to pay a fine. My client has already -- has already paid for -- for me. He's already paid for Mr. Saunders. Now, Mr. Saunders is really expensive. He got a deal on me obviously, but the fact of the matter is he's paid enormous attorneys' fees. He's -- he's -- they've been through this now three times and trying to get a fence, trying to get somebody to say, here's the material that you can use that's okay. You had Mr. -- you had Mr. Lentz here testify that under certain county contracts this is considered opaque material. What I'm saying to you is we impose sanctions for a number of reasons. Number one, we consider noncompliance with the code to be an antisocial act. Fine. We wish to deter other people from like antisocial behavior. We wish to rehabilitate the person who committed the antisocial behavior by not complying with the code. We wish to get retribution, a pound of flesh. We wish to, in fact, protect society from other like antisocial acts, but that's not the case here. The case here is you had the Ackermans testify that they did everything that they thought was in compliance. They took the material that Lentz told them -- or Schwartz, I'm sorry, that told them this was in compliance. They took it up. They got a reading on it. They testified Mr. Bolgar said he'll get back to them. They told Kirby, "We're waiting on Mr. Bolgar to get back to us." They testified they called every couple of weeks trying to get an answer. They couldn't put the materia~ in without the approval of the site development reviewing officer who does not exist. But Bolgar is in touch with him. He obviously is the right man to do it. If he's not, they need to tell him, you're not doing this right. You need to do it differently. They didn't do that. So what I'm saying is the imposition of the sanctions to Page 43 ~ September 30, 1996 ensure no more antisocial behavior is not applicable here. We got a guy who's busting his chops trying to do it. He's already paid $1,500 for the wrong kind of material after he had a certificate of compliance. Lastly I would like you to take into consideration Mr. Ackerman is 100 percent disabled from and -- and a recipient of no less than about 39 operations. A school bus up north hit him head on, and -- and he has to live with that. The point is just take that into consideration. Coming up with a fine is going to be difficult. I think that there should be no fine. I think that he tried in good faith to do it. It occurs to me that the county has not asked for a fixed number. They -- they think that it's necessary to impose a fine. If you do, fine. Impose a $1 fine. If I can't convince you after all of this, I can't convince you. He should not have a fine in this case. He's done everything that he tried to do. Take a look at the mistakes that have been made even to the extent of approving a material, issuing a certificate of compliance, having it revoked by the right party. Apparently Mr. Bolgar didn't know he wasn't the right party, and then we get up here and we say, well, he didn't use the right procedure. Well, he was talking to -- to Mulhere through Bolgar. He was talking to the right people. He was making the phone calls each month. You know, there's -- there's -- in equity there's a thing called clean hands. There's a concept called clean hands, and I think before the county asks for a fine to be imposed we have to look. They have not come into this with clean hands. They've made mistakes. I don't say that they've been intentional, and I don't think they should receive a fine. But they've certainly cost him $1,500 right out of the get-go just -- just by giving him the wrong approval. And now we're talking about imposing a fine of $30,000 because Mr. Bolgar through Mr. Mulhere didn't get back to him and tell him what kind of material after Mr. Bolgar told him he would. Now, if there's misunderstanding and confusion, Bolgar's man, Mike Kirby, knows about it. He goes out and inspects. How come your fence isn't opaque? Because we're waiting to hear from Mr. Bolgar. There's construction -- constructive notice that they have that there's no -- that there's a disconnect. They're waiting on him to tell him how. They have to get approval. Yes, they've never said it's not their responsibility. I maintain they have acted responsibly and they should not have a fine imposed. Thank you. CHAIRPERSON RAWSON: Any rebuttal? MR. MANALICH: No, no further comments. CHAIRPERSON RAWSON: Both sides have rested. It's now time for the discussion by the board. MR. YOVANOVICH: Excuse me. Madam Chairman, just when considering if you're going tq impose a fine -- I'm not saying you need to impose a fine, but the ordinance says you consider three factors. I just want to point them out to you real quickly. CHAIRPERSON RAWSON: Thank you. MR. YOVANOVICH: The first factor is to consider the gravity of the violation. The second factor is to consider any Page 44 ~ September 30, 1996 actions taken by the violator -- violator to correct the violation and to consider any previous violations committed by the violator. So you're to factor all three of those into your decision whether or not to impose a fine. CHAIRPERSON RAWSON: Thank you. MR. YOVANOVICH: Sure. MR. ANDREWS: Are you ready -- are you ready for -- CHAIRPERSON RAWSON: Ready for discussion. MR. ANDREWS: discussion? I've listened to this thing seems forever. I never -- I've been on the board since it started eight year -- I'm on my eighth year, and I never saw such a conflicting mess in my life. Even the Indians were better -- better than this deal. Number one, I think the whole deal has been mishandled all the way through. Step by step it's been mishandled. I think the Ackermans have made a terrific effort to try to compromise and not getting the right decisions, not -- not being able to talk to the right people. And thank God I'm not -- I'm a laYman, and if I had the problem, I'd probably been in the same position they are. So I think in fair -- I don't think -- this is something we'll have to agree on. The $30,000 fine is strictly -- strictly out of order -- order. I think there should be a compro -- a compromise. The county's spent an awful -- wasted an awful lot of money on this case, a lot -- a lot of our time. A lot of cases are building up that are meaningful that should be taken care of that we've lost time on it. So I would suggest that we make some kind of a compromise, and I'm going to need some help on that from the staff and our attorney. That's the way I feel about this. CHAIRPERSON RAWSON: Thank you, Mr. Andrews. Any other discussion for the board? MR. LAFORET: I would like to address the board. In view of all the evidence, I would recommend consideration of no fine at the moment. The man is given 30 days to get his okay of the existing fence. At the end of 30 days, then the fine period would start if he does not have the fence in compliance. Now, we've taken this approach before by the board, and I recommend we do it again. MS. DEIFIK: I think he does have the fence in compliance now. MS. LOUVIERE: Yes, he does. MS. DEIFIK: He does. The fence is up. MR. LAFORET: But does it have written approval? CHAIRPERSON RAWSON: Well, I believe -- MS. DEIFIK: Mr. Manalich? CHAIRPERSON RAWSON: The testimony was that it was in compliance I do believe. . MS. DEIFIK: Mr. Arnold testified he is the site review director. He testified it was in compliance. MR. LAFORET: I would like to see written approval. MR. MURRAY: I don't think there's been a certificate of compliance. So technically I believe that Mr. Laforet is correct Page 45 ~ ~- ~ September 30, 1996 unless there has been. I don't think there's been a certificate of compliance. MS. DEIFIK: Okay. Can we find out now whether there will be? MR. MANALICH: I have here in my possession affidavit of compliance which I can pass out at this time -- MS. DEIFIK: Okay. MR. MANALICH: -- which indicates yes, it does confirm he is in compliance. MR. MURRAY: We've never received it. That's why. MR. LAFORET: If he has a certificate of compliance, I withdraw that part of my recommendation. I recommend no fine. MS. LOUVIERE: I have -- I'm reluctant to approve something that states that we are not to fine him because this has been going on for a long period of time, number one. Number two, what Mr. Manalich said is correct. This board -- when we have orders, they are to be adhered to. If our orders are not listened to, then why are we here? We have an order here that states -- and this order was signed November 20 of 1995 -- that he was supposed to install an opaque fence, that he -- he could go for a variance. If the variance was denied, he had 15 days to -- to go ahead and place in an opaque fence which would have made the date January 26, 1996. This issue was denied on January the 9th. Mrs. Ackerman did not even call the county until January the 25th which was one day before she had to put up the fence. Oh, yes. I have this written down right here. January 25, 1996, was their first contact. So the way I look at it is even though they have an affidavit of compliance, compliance was not obtained in a timely manner. MS. DEIFIK: I have to agree with my colleague. I -- I think that the -- the issues have been obfuscated, and I think there's been a lot of blame shifting. I think certainly Mr. Murray has shown us evidence that the county did not handle this the way they perhaps should have. However, all of this was long after the fact that the Ackermans should have identified the appropriate material and taken action. First of all, I don't see the problem with the term opaque. To me it's pretty clear. And the code, as you've read it, says wood or concrete or other material approved by the county. It doesn't say whatever you use has to be approved by the site review director. If you went with wood or concrete or something that was obviously opaque, you have no problem. I don't know if Mr. Murray has gone back and read the transcript of the proceedings when Mr. Saunders was here. But I was there, and I recall them very ~learly, and I have had an opportunity -- Miss Cruz has kindly provided them to me -- to review what was said at that occasion. I would make the following points: First of all, the Ackermans have had four years, four years, to put up an opaque fence. There's been testimony that they did not do that because they did not feel it was aesthetic or because Page 46 ~ September 30, 1996 Sheriff Don Hunter was not in favor of opaque fences, these kinds of things, which is exactly why this board said, fine, go to the county commission and seek a variance. But at the time of the November hearing, Mr. Saunders who is certainly an -- experienced in land development and in county procedure -- Mr. Ackerman was not a laYman out there on his own. He had the advantage of high-priced, competent counsel which he has now. At that point in time Mr. Saunders said to us, "Give us this extra time. Give us this break, and I promise you that within 15 days __" and this was Mr. Saunders' and the Ackermans' suggestion with the board's approval -- "within 15 days after a variance is turned down, we'll have a fence up because we have all this time in between from November until that date to figure out what to do. II And yet all of the evidence has shown that the Ackermans made no effort, none. Mrs. Ackerman's testimony at the last hearing was that she made no effort to identify what would be appropriate to screen that fence. Certainly they made no inquiries into taking down the chainlink and putting up a different kind of fence until January 25. And even if someone could prove to us that she made a phone call January 20 or January 21, it's still after the fact. So I agree that some credit needs to be given because of the misinformation and because a first fence that was put up was not correct. But I don't think you can shift the blame that neatly. I think the Ackermans had an obligation. They had that obligation for four years. They were repeatedly cited for the lack of an opaque fence, and they were repeatedly given a pass. And in November we were assured this was the last time, this was the last pass that would be needed. And yet January 25 comes and goes with no effort. So I would suggest that a fine is appropriate. Otherwise, site development plans and orders of this board are meaningless. MS. LOUVIERE: Correct. MS. DEIFIK: Completely meaningless. I would, however, say that I think that a $30,000 fine is excessive in this situation. I do not see that a fine should be imposed between the period of the installation of the first fence and the second fence which, as I understand, was between July 19 and September 16. Someone correct me if I have those dates wrong. I would also support not imputing any fine for the 30 days that Mr. Bolgar held the first material. And I would also give them a credit for $1,500. I'm not sure and I'm not necessarily saying that it has to be computed in a formula that way. We may just agree, for instance, on a $10,000 fine. But I don't think that you can go for four years, more than four years, and repeatedly say, well, we didn't understand. Well, we didn't get to it. CHAIRPERSON RAWSON: On page 22 of the transcript which are in your minutes, I think ~hat certificate of compliance was issued for that fence by the county on July 19. So I would ask that the board keep that in mind, that the county told him he could -- that the fence was okay on July 19. The testimony's further that he paid $1,500 to install that fence which $1,500 has obviously been lost by the Ackermans Page 47 ~ September 30, 1996 because then later it was discovered that that wasn't the right fence after all and he's had to, in fact, replace the whole thing. So I would certainly suggest that we give him credits. I guess now we need to -- I need to ask is there any further discussion, or is someone ready to make a motion? MS. LOUVIERE: I would -- I would prefer to listen from Linda Sullivan as to what she constitutes an equitable fine in this -- in this matter. CHAIRPERSON RAWSON: Miss Sullivan. MS. SULLIVAN: For the record, Linda Sullivan, code enforcement director. Miss Sullivan's having the same problem with this that -- that you are. And that's why we did not recommend a set amount of fine. However, we did look at all the factors as to what time the county may have erroneously held the material and came up with pretty much the same factors that you have when you came up with with your recent figure. MR. ANDREWS: Wha twas that? MS. SULLIVAN: Well, listening to what -- what you all just said, the period that was suggested, the period between 7-19, 9-16, that's approximately 2 months. And 30 days for holding the material, that's about 3 months in all minus $1,500. Some quick calculation on my part was $12,000. Ten, twelve thousand dollars seems reasonable to staff. CHAIRPERSON RAWSON: Any further questions of the staff? Any further discussion by the board? Any motions by the board? May I suggest that depending upon what motion that you make that you might follow the form proposed order in your packet. MR. ANDREWS: Before a motion is -- CHAIRPERSON RAWSON: Uh-huh. MR. ANDREWS: Mrs. Chairman? CHAIRPERSON RAWSON: Yes. MR. ANDREWS: Before a motion is made, shouldn't we decide on -- on what -- MS. LOUVIERE: The amount of the fine? CHAIRPERSON RAWSON: I -- I think so, Mr. Andrews. Do you have any further discussion? MR. ANDREWS: Exact amount, exact amount. Two - - two of you I understand are close to $10,000. And that -- I don't know -- I don't know exactly how much -- how much the county's got invested in this thing. We didn't get an exact figure on that, although Linda said she thought around 10 to 12 or 13. Seems like a very high figure, but if -- the county should at least get their money back for all the time that they put in the thing, although a lot of it was misspent. And it's a tough one to figure out what's -- what's fair. So from this point, somebodY's-got to prove to me other than just a few facts I got here that the $10,000 is a fair amount. MS. DEIFIK: I don't think that Linda was saying the county had $12,000 into it. She was saying that if you compute $150 a day times the period of time from 15 days after the variance was Page 48 "~ ~ September 30, 1996 denied and then subtract the items we discussed, she came up with $12,000. MR. ANDREWS: Oh, okay. MS. DEIFIK: Because the order -- the order imposed a fine of $150 a day for every day after 15 days past the date the variance was denied. And we're now, what, six months down the road, eight months down the road. MR. ANDREWS: Okay. I -- I misunderstood her then. But -- but -- but you did recommend I think 10,000. MS. DEIFIK: I was picking $10,000 as a rough calculation and rounding down as being fair. MR. ANDREWS: It has to be -- it has to be rough in this kind of a case. MS. DEIFIK: I think if Miss Sullivan would share with us exactly her computations, maybe we can have those on the record. We have -- $150 a day from January 26 to today would be how much I'm sorry I don't have a calculator -- so that everybody's clear on what we're doing? MS. SULLIVAN: I was doing it roughly too. For example, to show you how difficult this -- this is to figure out, here is another way of calculating it based on the things -- same things. From January 7 to September 15, 234 days times 150, that's $35,100 of exposure. MS. DEIFIK: January 7? I though we suggested January 26. MS. SULLIVAN: I'm just -- I mean, I'm just showing you the different ways and the different figures. MS. DEIFIK: What was it? January 7 to what? MR. MANALICH: Well, it should be -- for clarification, it should be January 26. MS. SULLIVAN: Okay. Do you have those figures? MR. MANALICH: We'd have to just deduct. I thought the calculation was from January -- MS. LOUVIERE: January 26, that was the 15 days from the time we denied -- MS. SULLIVAN: Okay. It would be approximately $35,000 then if we took off 100. That's close. And then you take off 30 days at 150, $4,500. That leaves you with 30,000 in exposure. Then you take off the cost of installation. That leaves you with 28 in exposure. Then you take off the second fence for $4,000. That leaves you with around $16,000. So you can see depending on how you figure this, there's a range of probably from 10 to 12 to 18, $20,000. CHAIRPERSON RAWSON: Do your calculations calculate it up to September the 16th? MS. SULLIVAN: No. When Ms. Deifik made her suggestion, I was just roughly saying, ok&y, 30 days off for the time the county had the material, two months off for the time -- the last two months, and then the cost of the fence is the way I was going about it. CHAIRPERSON RAWSON: Has anybody done a calculation from January 26 to July 19? MS. SULLIVAN: Maria has, and I don't know if she has Page 49 -~ ~ September 30, 1996 those figures with her. We've calculated every way we can calculate actually. Do you know, Ramiro? We can do it quickly for you if you want to take a little break. MS. DEIFIK: Her figures don't sound right. I just banged my knee so hard. Oh, God. All right. January 26 to the end of September is -- that's seven months really. MR. MANALICH: Two hundred and ten days. MS. DEIFIK: Two hundred fifteen times thirty. MR. MURRAY: Madam Chairman, is there any provision for counsel for the defendant to address the board since the county is addressing the board in computing a -- CHAIRPERSON RAWSON: Well, in response to, you know, questions, I think that basically they're asking questions of staff which we often do, Mr. Murray. But I don't have any problem with your saying something. Basically we're talking about calculating. If you can aid some -- the board in -- in that effort, go ahead. MR. MURRAY: I would like to point out to the board that -- that even the county through Mike Kirby's testimony has testified that they, in fact, were dealing with the county. I'm not certain what they should have done since they were talking to Mike -- to Bill Bolgar. MS. DEIFIK: After the fact, after the fact. MR. MURRAY: They -- they -- MS. DEIFIK: They promised in November they would have this all taken care of well in time before a decision on the variance was made. And all of your testimony concerns efforts that were made long after the time had expired. MR. MURRAY: But they can't do it until they get the approval MS. LOUVIERE: I -- I really -- MR. MURRAY: -- in accordance with the code. MS. LOUVIERE: I know that Jean said that you could come up here and discuss this. We have listened to your arguments and your statements, and we can certainly appreciate the hardship that your client has gone through. But right now we are deciding the amount of fine. MR. MURRAY: And I'm speaking to that amount. MS. LOUVIERE: And -- and not -- you're going back into the same old issues that we have heard before. CHAIRPERSON RAWSON: Well, suffice it to say, Mr. Murray, your -- your suggestion to the board is that there be no fine. That would be your calculation; is that correct? MR. MURRAY: That would be my calculation. But even if you don't take mine, recognize that Mr. Kirby rec -- you know, was told they were waiting on an ~nswer. Now, they've -- they've talked to them. And if you compute that time, it further reduces it. I'm speaking to the issue of amount of fine. Without a vote you obviously apparently have decided to impose a fine. I'm speaking to that issue. MS. DEIFIK: We're going to vote. Page 50 .~ ~ September 30, 1996 CHAIRPERSON RAWSON: We're going to have a vote. Do you have a date that you have in mind that he talked to Mr. Kirby? MR. MURRAY: I believe that the date that they talked about was some time in April, and that may be -- in all honesty, that may be Mrs. Ackerman talking to me but -- but one of the times. She mentioned four or five times that he came in, and I believe in -- sometime in -- in April was one of the times that was mentioned, and I just would like you to take that into consideration that apparently there was an ongoing relationship still working trying to get it done. MS. LOUVIERE: We are taking -- MS. DEIFIK: I have -- I have the computations. MS. LOUVIERE: We are taking all that into consideration. That's why your client's not being fined thirty some odd thousand dollars. He's being fined less. MR. MANALICH: Madam Chairman? MS. DEIFIK: Okay. The-- CHAIRPERSON RAWSON: Yes. MR. MANALICH: I'm sorry. If it'll assist the board I realize one of your members currently has a calculation I can give you briefly one that I have just arrived at based on your recent comments. And that is if we round this off to a 7-month period at $150 a day, that would equate to $31,500 total. If you take off $1,500 in installation costs, if you take off 30 days which is the period about Mr. Bolgar holding the first material, and if you take off 53 days additionally which is the period from the time of installation of the first attempt through the present, as I understand, that all comes down to 17,550. And, you know, that's obviously -- I'm not -- at this point I don't think the code enforcement director is saying you have to focus on this figure. She's just saying based on the discussion that's where numbers would start to sort out. Obviously it's for you to consider the testimony and whether, you know, this is warranted or -- or less. You know, there was -- you know, I'll mention this on behalf of the respondent. There was, as I understand it, a 4,000 or $4,500 cost for the new slatted fence which apparently is rather favorable to the neighborhood from what Mr. Arnold said. That has not been factored in here in this number I just gave you. And if that will assist you, I provide that. CHAIRPERSON RAWSON: Thank you. MR. ANDREWS: We still haven't got a figure on -- on the cost to the county. What -- what -- what's the cost of this case, actual cost? MR. MANALICH: The code enforcement director informs me that given the situation that developed here, she was not intending to pursue costs on this because qf the confusion that occurred at some points in this process. MR. ANDREWS: Well, there's been so many mistakes made -- made in this thing, I think there should be a compromise. And we're just going on one set of figures. MS. DEIFIK: Well, I think that we're all trying to give Page 51 .~ ~. ~ September 30, 1996 them a smaller fine, a much smaller fine, than just the amount of time times 150, Charlie. MR. ANDREWS: Well, I said I haven't heard any compro I haven't heard any compromises. MS. LOUVIERE: Well, so far we're up to $17,550. MS. DEIFIK: My calculations came to 13,400, and maybe I gave them credit for more days. I would suggest in the interest of moving this along taking into account everything that's happened a $10,000 fine. CHAIRPERSON RAWSON: form of a motion? MS. DEIFIK: I could. I'm not very good at putting those together but MS. LOUVIERE: Should we have a vote first that we will -- we are going -- we've decided to fine them and the amount and then she can place it in a motion, or we just go straight to the motion? CHAIRPERSON RAWSON: Well, let's utilize our attorneys. MR. YOVANOVICH: Probably it will work easier if you arrive at a number and then go back through and discuss the -- the fine. The way the motion's set forth, you can -- you can say the original violation is from I believe January 26, and it was fixed on September 16 and then give a flat fee for that duration of time, whatever you arrive at to be that fee. And we'll put that in the the format that you already have in front of you. That would take into effect all the mitigating factors we've discussed, so you've come up with that flat fee instead of saying, well, we're taking -- although you've discussed it, you don't have to put it in the form of a motion that, you know, we're taking -- we're discounting it -- discounting 30 days for this period and 58 days for this period. Based on all that discussion, we've arrived at a flat fee of X for a violation from January 26 to September 16. So I think if you come up with a flat fee, that will work easier for you. MS. DEIFIK: Mireya, do you want to do it, or do you want me to do it? MS. LOUVIERE: You can do it. I me. I don't want to. MS. DEIFIK: Okay. Let correctly, first we're going the fine. Then we'll make a and a lien. All right. I move that this board impose a fine on the Ackermans pursuant to the order that was entered last November and that the fine be computed or arrived at as follows: We understand that the fine was initially ordered to be imposed at $150 a day from 15 days after the date a variance was denied. We understand, now that we're on the other side of th~t time period, that the variance was denied by the county commission on January 9. Therefore, they should have been in compliance by January 25. Based on the representations of the county attorney and our own counsel, the fine would then start to run the next day, January 26. So initially we're looking at fines of $150 a day for the period from January 26 through the date Is -- are you doing that in the that's fine with me make -- if I understand to make a motion concerning the amount of motion concerning imposition of a fine Page 52 .~ T September 30, 1996 compliance was achieved which is September 16. However, because we've heard evidence in mitigation of the respondents' noncompliance, I would propose giving credits as follows: First, give a credit from the period July 19 through September 16 because they did attempt to put up a fence which they thought was in compliance with what the county ordered. I would further give them a credit for the period of time the evidence has shown is 30 days which Mr. Bolgar held on to material that they had submitted for approval. I would further give them credits for the cost of putting up not only the first fence but the second fence, although we are not required to -- to give such credits. We could do all those computations, and several people here have done them. And we come up with, depending on the number of days and the exact amounts that you use, between 13,400 and $17,000. I would submit that rather than attempt to calculate it to the last penny and figure out how many days each month had that we impose a flat fee of $10,000 which I feel is equitable under the circumstances. CHAIRPERSON RAWSON: Is there a second? MS. LOUVIERE: I second that motion. CHAIRPERSON RAWSON: It's been moved and seconded that we set the fine in this matter at $10,000. Any further discussion? All in favor with the motion signify by saying aye. All opposed? Motion carries. Is there a further motion? MR. YOVANOVICH: Madam Chairman, since Miss Deifik did such an excellent job outlining everything, I think I can draw an appropriate order just from that motion instead of putting you through the same process again. CHAIRPERSON RAWSON: Well, thank you. MR. MANALICH: Yeah. The only question I would have, is there a time frame for paYment of the fine? MS. LOUVIERE: Yes, I think we need to put a time frame on paYment of fine. MS. DEIFIK: Okay. Let me -- let me just try and go through the basics here real quickly. Easier for me to just read this. Okay. I make a motion as follows: That this board impose that this board enter an order imposing a fine and a lien on the subject property. This cause came on for public hearing before the board today, September 30, 1996, and is a subsequent hearing if Mr. Yovanovich could fill in the dates of the prior hearings after due .notice to respondent at which time the board heard testimony under earth -- oath, received evidence, and issued its findings of fact and conclusions of law, have ther~upon issued its oral order which shall be reduced to writing. An affidavit of compliance, I understand, bearing the date of September 16 and affidavits of noncompliance bearing the appropriate dates should be appended to this order. In November this board had ordered that fines be imposed if certain actions were not Page 53 -:t ~ September 30, 1996 taken within 15 days subsequent to a denial of a variance. Therefore, since the respondent did not comply within the appropriate period, it's ordered that the respondent pay to Collier County a fine in the amount of $10,000 for noncompliance with the board's order of November -- I'm sorry, I don't have the date. MS. LOUVIERE: November 30, 1995. MS. DEIFIK: November 30, 1995. MS. LOUVIERE: Within-- MS. DEIFIK: Mr. Yovanovich, can you fill in the way in which the fine was arrived at? MR. YOVANOVICH: I -- I will -- I will insert -- MS. DEIFIK: Okay. MR. YOVANOVICH: -- your discussion -- MS. DEIFIK: All right. MR. YOVANOVICH: -- on the different credits. MS. DEIFIK: It -- they're in compliance, so there's no necessity for the fine to continue. Do you have any suggestion as to when -- MS. LOUVIERE: I -- I think that 15 days is what they had before, and we'll give them 15 days again. And this time I think they'll adhere to the order of this board. You have 15 days from today's date to pay $10,000. Otherwise, we place a lien against his property. MS. DEIFIK: The subject property. MR. MURRAY: If I may, my client's going to have to borrow the money against the property. It's going to take the longer than 15 days to give him the money to do that. I would respectfully just for more time just out of -- he can't get it that time. CHAIRPERSON RAWSON: Thirty? Forty-five? MR. MURRAY: Yeah. MS. LOUVIERE: Thirty? MR. MURRAY: The bank usually takes 30 or 45, so I'm suggesting 30 or -- MS. LOUVIERE: Thirty? MR. MURRAY: -- 45 to allow him to get it done. MS. DEIFIK: Well, can I point -- can I point out, Mr. Murray -- I'm not trying to be difficult, and it has nothing to do with your client. It really has to do with other situations that have come before this board. It's been my observation that in the past the board has been lenient in actually imposing a lien. And what other people have done is gone out five minutes after leaving the courthouse and sold the property and then come back to us and said, well, ha, ha, too bad, you didn't get your lien slapped on fast enough. I would submit that the lien will be ~ifted immediately upon paYment. So it's not an issue as to whether or not he needs more time. To me it's an issue of whether -- and I'm not saying that your client would do anything like that. I'm just saying that this board has observed that happen in the past. It has nothing to do with your client. But I just would like to see practice and procedure be consistent so that bank ask done in How many days are you suggesting? Page 54 :!: ~ September 30, 1996 that doesn't happen in the future. MR. MURRAY: The only thing I'm you're issuing an impossible order. You're -- you're setting it up for a to do -- MS. DEIFIK: No. We're setting it up for a lien. MS. LOUVIERE: And then once you obtain the funds, then you -- then you would pay the county, and the lien would be released. MS. DEIFIK: The lien would be -- MS. LOUVIERE: And that way the county is secured in their lien which we have a history of this board not being able to enforce our liens. I agree with you, and I think 15 days ought to hold. CHAIRPERSON RAWSON: Well, let's see. Miss Deifik, I think it's your motion, so why don't you continue with your motion. MS. DEIFIK: Said fine shall be paid within 15 days. This order may be recorded and shall pursuant to Section 16209, Florida Statutes, constitute a lien against the property described in Exhibit A and/or any other real or personal property owned by respondent. CHAIRPERSON RAWSON: Is there a second to the motion? MS. LOUVIERE: I second Miss -- Miss Deifik's motion. CHAIRPERSON RAWSON: Motion's been moved and seconded. Is there any discussion? MR. YOVANOVICH: I record this if the funds are not received within 15 days. Then you want the fine -- this order actually recorded as a lien at that point, not before that point. CHAIRPERSON RAWSON: Is that a part of your motion? MR. YOVANOVICH: Is that the way I understood it? MS. DEIFIK: Well, let me ask counsel what is the procedure. And again, let me -- let me stress to counsel -- and it has, again, nothing to do with the Ackermans. But I'm very concerned about what I've observed in the past where the -- the board has been lenient and then found out that property was transferred under their nose. We had that happen just a few months ago where somebody went out and transferred property and didn't even tell us until after the fact. It's my personal feeling that the lien should be recorded tomorrow in all of these situations, that we shouldn't be giving 15 days. I was merely doing that because that seemed to be the consensus of the board. Maybe we should discuss that. You know, obviously the lien should be lifted immediately that the respondent pays it. CHAIRPERSON RAWSON: I guess the question to you, Mr. Yovanovich, is the usual practice of this board in liening property after orders are issued. MS. DEIFIK: Can we dictate that, or MR. YOVANOVICH: You -- you -- MS. DEIFIK: -- is there some -- some statute or rule that requires us to give a certain amount of time? MR. YOVANOVICH: You're not required to give any set amount of time. You have in the past just from a policy standpoint. Some -- saying is that you're -- It can't be done in 15 days. failure. If that's what you want Page 55 ~ September 30, 1996 MS. DEIFIK: Which has obviously been a bad policy. MR. YOVANOVICH: Right. Sometimes you've given time, and I don't -- I don't recall ever immediately recording one. But you're certainly within your powers of doing that. And you're absolutely correct. The sooner you file the lien you have then got your -- you're in line wherever you fall in. I don't know who's -- who's in front of your lien at this point but -- MS. DEIFIK: Right. And I want -- MR. YOVANOVICH: -- if you wait, they could sell the property, and you're right. You're then chasing the proceeds from the sale. MS. DEIFIK: Right. And I want to emphasize to everyone here that it has nothing to do with the particular respondents. It has to do with my background as a real estate attorney and knowing for 19 years that the critical task is to perfect your lien and to perfect it before anyone else does and the bad experience that the county and this board has experienced in the past. Mr. Manalich, is there to your knowledge a requirement that we wait a certain period of time? MR. MANALICH: Not that I'm aware of under chapter 162. I think once this order is made, it can be recorded and act as a lien. It can -- we are then, of course, as you point out, required to remove it immediately upon satisfaction of the amount that's ordered. But I'm not aware -- aware of any waiting period. Now, obviously in an earlier version, the first order, that is, the findings of fact, typically there you give time for compliance. But we're way beyond that. Now we're talking about an order imposing fine. I'm not aware of any waiting period. CHAIRPERSON RAWSON: We have a motion and a second. Is there any further discussion? MS. DEIFIK: Well -- well, I didn't finish my motion. How long are we going to give? MS. LOUVIERE: Are we talking about modifying Celia's motion to discuss when the recording of the lien -- that's what we're doing? CHAIRPERSON RAWSON: I thought 15 days was in her motion. MS. DEIFIK: MS. LOUVIERE: that. CHAIRPERSON RAWSON: Okay. Well, let's have some further discussion about that. MS. DEIFIK: Charlie? MR. ANDREWS: Is -- is of cost in redeeming a -- a MS. DEIFIK: No. It's satisfaction. MR. ANDREWS: MR. LAFORET: therefore. MR. ANDREWS: It was but I -- But then we're thinking about changing there a -- is there a great deal lien? six -- six bucks to record the Okay. I'd go along with that. I'll agree with the 15 days and the reason No, I didn't -- I meant -- I meant Page 56 .~ ~ ~ September 30, 1996 immediately -- immediately. MS. LOUVIERE: I agree. I'd like to see it recorded right away. I'd like our policies to change so we start recording liens right away so that the owners MR. ANDREWS: In all cases. MS. LOUVIERE: Yes. MR. ANDREWS: I agree. MS. LOUVIERE: -- that the owners are not switched, that the property's not sold. It becomes a nightmare then to try to track these people down. CHAIRPERSON RAWSON: Well, I would like to say the 15 days is really meaningless because I have to agree with Mr. Murray. Fifteen days doesn't mean anything. He's not going to be able to get the money in 15 days. If we're gonna give him time to get the money, we have to give him more like 45 days. Fifteen days doesn't do anything. So it would be my suggestion that either we give him time to get the money or we record the lien immediately. But the 15 days doesn't mean anything. MS. DEIFIK: Then I'll change my motion to say that the order should be recorded immediately with a caveat that the county should immediately coordinate with the respondent and his counsel to satisfy that lien upon tender of funds. MR. ANDREWS: I'll second that. CHAIRPERSON RAWSON: Any further discussion? A motion and a second before the Court -- sorry before the Code Enforcement Board. Freudian slip. Too many years. I've been practicing 19 also. All in favor please signify by saying aye. All opposed? Motion carries. MR. MANALICH: One clarification as far as removal of any recordation. Are you looking to county attorney or to board counsel for that function? MS. DEIFIK: I'm sorry. I don't know whose responsibility it would be. Mr. Yovanovich -- MR. YOVANOVICH: I'll take care of it. MS. DEIFIK: -- would you immediately coordinate with Mr. Murray if and when he makes tender of funds? MR. YOVANOVICH: Okay. CHAIRPERSON RAWSON: Thank you. MR. YOVANOVICH: Sure. CHAIRPERSON RAWSON: If we could have our other board members back. Okay. Could the record reflect that we have board members back, Mr. McCormick and Mr. Allen. with the Board of County Commissioners versus Del McMillan. We are moving on to the Board versus Charles -- Charles W. Hicks 96-007, to reconsider the approval MR. MANALICH: Madam Chairman our two And we are completed Ackerman and Jay of County Commissioners and Joan R. Hicks, CEB Number of a partial release. Page 57 ~ ~ September 30, 1996 CHAIRPERSON RAWSON: Yes. MR. MANALICH: -- this is a matter that, if you'll recall when we last visited, at the request of Mr. Craig Woodward, attorney MS. DEIFIK: Oh, I need to recuse myself. MR. MANALICH: -- for I believe Mr. Hicks CHAIRPERSON RAWSON: For the record, Miss Deifik I believe recused herself at the last meeting because she has a conflict, and she is doing so again today. But don't go away because we're not done. I mean don't go away totally. MS. DEIFIK: Okay. CHAIRPERSON RAWSON: She's recusing herself from this vote. MR. MANALICH: Well, essentially the partial release was requested, as I understood it at the time and explained it to you, on the basis that there was a divorce proceeding taking place, that the property that was being asked to be released was homestead property and not the property on which the seawall violation was located. Attorney for -- I believe again it was Mr. Hicks. I'm confused now whether it was Mr. or Mrs. Hicks, but it doesn't really matter for our discussion here. Mr. Woodward indicated to me that his request was because it was homestead and because it would help the parties settle the distribution of their marital assets and in the settlement agreement, if I recall correctly, there was mention made of the county interest in its lien on the seawall property and that that was going to be taken into account as part of this overall marital distribution. What happened was that you then went ahead and voted in favor of the partial release for those reasons. That day or the next day -- I can't recall -- but very soon thereafter, I received a call from Mr. Woodward. To his credit he brought to my attention that a bankruptcy proceeding had now been instituted apparently independent of his representation and that that could affect everything that had been planned as far as the distribution and everything that was going to be done in the case. At this point I told Mr. Woodward that I saw no reason then for the county to continue forward with the partial release and that I would ask you all to reconsider that action because even though typically we can't lien -- well, we can lien but we can't foreclose on homestead, if that homestead is ever sold, proceeds obtained and not used for homestead purposes, conceivably if we could track it and all of that, we could attach or, you know, reach some of those proceeds. I'm not saying that's likely to occur here. My point is the basis of my recommendation to you for the partial release according to Mr. Woodward has changed. Since it has changed, I see no reason why we would want to gratuitously offer this partial release at this point in time. Previously it seemed to me that there were plans being made to respect the county's economic interest in this and that it would alleviate from working a hardship on the parties. Now with everything thrown into question again, I would ask you simply to Page 58 ~ ~ September 30, 1996 retract your previous action, not issue a partial release and see how this unfolds in the future to have our maximum leverage in recoupment of any fines. CHAIRPERSON RAWSON: To the best -- best of my knowledge and if you look on the minutes on page 73 -- the motion was made and seconded and passed. But I noticed that the notary language was incorrect on the release and -- on the partial release, and I don't believe I ever signed it. MR. MANALICH: No, and you didn't sign it partly because of that but also because of this new development. I held it back and put this on the agenda instead. CHAIRPERSON RAWSON: So I don't have to redo the partial release. MR. MANALICH: No. It would just be a vote. CHAIRPERSON RAWSON: We just have to reconsider the motion that actually passed at our last meeting August 22. I'd make the motion that we reconsider and overturn the motion that we made on August the 22nd. MR. MANALICH: One other point, Madam Chairman. That is -- Ms. McEachern can inform you on this -- but I believe that Mr. Woodward was -- did speak with her, and he was aware, just as he requested previously certain action, that this action was going to be recommended by us. Is that correct? MS. MCEACHERN: That is correct, and he has no objection. CHAIRPERSON RAWSON: Well, let me ask our attorney the proper motion to make here. If we reconsider it, do we want to negate our order because I don't know that it was an order? It was just a motion that was made and passed. MR. ANDREWS: Never signed, though. CHAIRPERSON RAWSON: No, I didn't sign a formal order, and I didn't sign a partial release. MR. ANDREWS: So it really isn't there. MR. YOVANOVICH: Well, it's there of record. I mean -- CHAIRPERSON RAWSON: Right. MR. YOVANOVICH: -- it was just the mechanics of getting it done, you know. But -- you know, but for the typo, it would have probably been signed that day -- CHAIRPERSON RAWSON: Correct. MR. YOVANOVICH: -- and -- and would've been taken care of. I'm a little uncomfortable having this on the agenda at this point without following the board's rehearing procedures because I think that's what we're requesting at this time. I mean, I think Mr. Manalich is asking for a rehearing of a previous board decision, and I think you'd need to follow the previous -- the provisions in the ordinance to do that, and tha~ applies both to the county and to a respondent. So at this time I would suggest that the board require the county to go through the rehearing procedures in order to have you reconsider it because you finished -- you made your decision. You know, that decision has been made, and there are procedures to rehear Page 59 .~ T September 30, 1996 it, and I think you've got to follow those -- the county has to follow those procedures. CHAIRPERSON RAWSON: Thank you, Mr. Yovanovich. Now, does the county want to follow the rehearing procedure today, or do you want to put it off till our next meeting? MR. MANALICH: Well, I guess, you know, I see the point that's raised. I, frankly, had not really considered this in terms of a rehearing, although maybe counsel is correct and that was my oversight. It basically requires a request for rehearing to be made in writing and filed within ten days of the date of the board's written order. Of course, that hasn't occurred either. The request for rehearing should be based on the ground the decision was contrary to the evidence or the hearing involved an error on a ruling of law which is fundamental to the decision of the board. The reason I question whether or not this is applicable is this almost seems to be geared toward when you have a finding of fact, conclusion of law, that it talks about the evidence and rulings of law. What we requested of you was not really -- the last time was not a hearing of the whole matter. I mean, that had already occurred way before. It was simply a special request from opposing counsel for this partial release. And my position would be that we should not be required to go through the rehearing process for that very limited purpose which was requested of us by the other attorney. If I was asking you to revisit your whole decision on whether there was a violation here or not, that's another thing. But I'd respectfully argue with Mr. Yovanovich that I think this is intended to reach a rehearing of a findings of fact, conclusions of law decision and not a special partial release request that's supplementary from opposing counsel. But, I mean, I can -- if your counsel disagrees with me and so instructs, I mean, obviously I'll respect and go in that manner. But I just offer that at this time in reaction. You know, it's a point I, frankly, had not considered. MR. YOVANOVICH: And I don't think it's -- it's clearly set out where this situation comes up. So I think, you know, that obviously there's room for disagreement. I -- I am concerned. Has there been any formal written notice to the other side that you want this to be reconsidered? Has there been a formal written response saying that they don't object to this happening? I mean, for all they knew or know, this is already done and taken care of. And I understand what you've stated in the record, but I don't have -- I don't have Mr. Woodward here or anything from him. MR. MANALICH: I mean -- MS. MCEACHERN: Mr. Woodward does not want to be here. He told me that. He has no i~tention of being here. CHAIRPERSON RAWSON: And he wasn't here last time. MR. YOVANOVICH: Oh, okay. CHAIRPERSON RAWSON: This was basically -- he wasn't here last time. This was basically a motion brought to us by the county attorney for our consideration. And basically they said we Page 60 ~ September 30, 1996 MR. MCCORMICK: Is that right? MS. CRUZ: The fines were accrued to August 29, 1996. That was the last date -- MR. MCCORMICK: Okay. MS. CRUZ: -- that we did the reinspection. MS. DEIFIK: So they -- they would include that six-month period then. MS. CRUZ: Excuse me? MS. DEIFIK: The way you've computed it includes that six-month period. MS. CRUZ: That's correct. That's -- that's correct. I did a reinspection of the permit history this morning, and the viol the certificate of occupancy has not been obtained yet. So even though I have an affidavit of noncompliance here that states that there was a reinspection done on August 29, I can testify that the violation's still there. MR. ALLEN: Miss Cruz, I got a question. If you did a reinspection this morning, have they had any inspections done as far as construction inspections during this six-month period? MS. CRUZ: If you give me a minute, I can pull that history up. MR. ALLEN: I'm saying in that vein of thinking, has the permi t expired? MS. CRUZ: I would have to check the permit history on that. Would you like me to check? MR. ALLEN: At your leisure. MS. CRUZ: Thanks. CHAIRPERSON RAWSON: Yes, sir. Why don't you state your name, and we'll have you sworn in, and we'll hear what you have to say for the Bank of Immokalee. MR. WRAGE: For the record, my name is Gary Wrage. I'm vice president of the Florida Community Bank. CHAIRPERSON RAWSON: Would you swear him in, please. THEREUPON, GARY WRAGE, a witness, having been first duly sworn, upon his oath, testified as follows: CHAIRPERSON RAWSON: Go ahead. MR. WRAGE: My apologies to the staff. On July 26 we changed our name from the First Bank of Immokalee to the Florida Community Bank. Seems like I notified everybody in the world, but I didn't realize till this morning till I looked at this. Obviously the Florida Community Bank assumed all assets and liabilities of the First Bank of Immokalee so -- MS. DEIFIK: Was something recorded in the public records showing the name change? MR. WRAGE: Yes, at the state level. MS. DEIFIK: Okay. To your knowledge has it been recorded in Collier County? MR. WRAGE: Yes. Our certificate of -- the exact word escapes me -- has been changed; business license I believe or Page 63 .~ ~ ~ September 30, 1996 something along those lines. MS. DEIFIK: Well, there's a certificate, a banking certificate, that generally gets recorded in any county -- MR. WRAGE: With the state. MS. DEIFIK: -- where a bank owns property. But sometimes it doesn't happen until there's actually a closing of real property involving that institution. MR. WRAGE: Okay. First, I thank you for allowing me to appear before this board I think. A couple things: One, no, there has been -- our permits expired -- and the date escapes me -- some time ago. Unless the board's got any specific questions prior to January, the last time I appeared before you, as to how we arrived at that date, I can tell you what's taken place since January when I last appeared before this board. At that time we did not necessarily have anyone interested. We had it listed with a realtor. The realtor did bring to us a contract dated May 31 in which we gave the buyer a due diligence of 30 days and a closing of 10 days. They did not consummate that deal for whatever reason. Since that time the listing with that particular realtor has expired. I have been negotiating with another party. But as of this date, I don't have an offer. I have no idea whether they're going to come forth or not. I do know they've gone through the process. Barring that, you know, we will obviously engage another realtor and go forward. I'm here simply to ask for an extension of our original extension. Back in January I asked for a year. You were kind enough to give me six months. I really truly believed I would have that property sold. Obviously the bank cannot operate a convenience store which is what it was originally permitted for. Our goal is to sell it and get on with the rest of our life. I'll be happy to answer any questions. MS. LOUVIERE: What other violations are existing out there? MS. CRUZ: I'm sorry? MS. LOUVIERE: What other violations are existing on this site? MS. CRUZ: Failure to -- MS. LOUVIERE: To obtain a CO? MS. CRUZ: -- to complete the construction and obtain a certificate of occupancy, that's correct. MS. DEIFIK: Any public safety problem with this building? MS. CRUZ: Not that I'm aware of. Not at this time. CHAIRPERSON RAWSON: What's the building worth? MR. WRAGE: It's worth what I can sell it for. CHAIRPERSON RAWSON: What's it listed for? MR. WRAGE: It's presently listed for 310,000. CHAIRPERSON RAWSON: Is there any indebtedness on it? MR. WRAGE: No. MS. DEIFIK: Do you have an appraisal -- Page 64 ~ ~ September 30, 1996 MR. WRAGE: Not to my knowledge. Okay. MS. DEIFIK: Do you have an appraisal on the property? MR. WRAGE: The last appraisal we had was about three years ago. That appraisal was at a completed state. Full convenience store, gas station was at approximately 775,000. MR. MANALICH: Madam Chairman, just an observation. I'm looking at what's been presented to me as the prior order of the board on January 31. Apparently Mr. Pettit from our office sat in with you on that occasion, and that order very briefly states that this cause came before the board as an old business agenda item on January 25. After hearing from code enforcement staff and a representative of respondent, First Bank of Immokalee, the board hereby continues this matter until the board's July 25, 1996, meeting. I'm not sure I know exactly the intent of the order. Obviously was a continuance, but did it intend to suspend any fines? I mean, basic fairness would probably indicate that if you've given an extension, you can't really include fines for the extension. However, beginning July 25, it's fair game again is the way I would for your benefit view that as, you know, in this case speaking in -- you have your counsel here, so I'm not trying to advise you. I'm just trying to advocate on behalf of staff as far as what I think -- you know, you've heard the ballpark total figure from when this started. But I think on behalf of staff, if the code enforcement director agrees with me, I think we can really only assert from July 25 for those circumstances. MR. MCCORMICK: For -- for the benefit of the board, that was my intentions or my understanding of our action, that we were essentially suspending the -- the fines during that time period and that if -- if we do assess fines today that that six months would not be included, but we can further discuss that. Miss Cruz, can you tell us has there been any complaints regarding this property? MS. CRUZ: No, and we have not received any complaints. MS. LOUVIERE: Is there any -- and I think Celia asked that question before. Is there any danger to the general public because of the condition of the site? MS. CRUZ: Not to my knowledge. MR. ALLEN: I got a question of Mr. Wrage, please. I'm trying to refresh my memory of this. Is this not a site where the developer went in, borrowed the land or basically took the land on golly, I'm trying to think. The fellow that owned the land subordinated the land to the developer. The developer came in and borrowed against the money at you all's bank. Is that the case? MR. WRAGE: Just to give you a brief history of how we acquired this land, the land belonged to -- to a gentleman who found a developer. He deeded it to the developer so the developer could get a lien. He came to us via anot~er bank. We agreed to -- to loan money on this. The developer ultimately went into Chapter 11, into Chapter 7. We then went into foreclosure. We then went into lawsuits with the former owner. This thing has been dragging on seems like most of my life but I believe since about 1990. When we acquired it, it was in various stages of Page 65 -~ ~ September 30, 1996 disarray. At that time we hired a contractor as well as an engineer. We worked with the code enforcement at that time to bring it to a level that seemed to satisfy the code so we could get a certificate of completion, not a CO, and then to market it. Unfortunately probably due to no fault of my own, we have not been able to sell it to this point. MS. DEIFIK: Have you lowered the listing price during this period? MR. WRAGE: We originally started at 360. We're down to 310. The offer that we had that we accepted from the other party was less than that. MS. DEIFIK: How much would it cost to -- to complete the building now? MR. WRAGE: I have seen figures, a total cost -- and -- and again, it depends on whether you want to build -- and not to -- to degrade these people -- a 7-Eleven or a SuperAmerica, anywhere from 750,000 probably to a million one, million two, and that's a turnkey; in other words, shell, stock, cash in the cash register ready to do business. MR. LAFORET: Was the question ever resolved that there's one end of this property that had no planning for development? It was just an end to the property, and the fear was that if somebody established a place of business there that there would be no direct driveway to the main highway because of the curvature of the planned road. MR. WRAGE: That has been addressed many times, not by myself but people who have attempted, you know, to find out what it would take to complete this. The last party or the party that I'm presently talking with has met and discussed that with the county in terms of a turning lane. You're right. There's two entrances to that property. It's actually set up in phase 1 and phase 2. We own phase 1. Another property owner owns phase 2 which is -- the original PUD I believe was like an L shape strip mall, if you please. There are then two entrances to the property, one off Randall and then one off of 846 itself. Even though the one because of the -- and this is just what I'm told. Because of the traffic pattern that a convenience store creates, there has to be at least at minimum a turning lane, and that's been addressed with the people that are looking at it now. They would still have a turning lane, but they would still access the property off of Randall. Then when the second phase is built, if ever, then there would be an actual entrance right off of 846 which would access both properties. MR. LAFORET: That's -- that's possible. MR. WRAGE: Possible. MR. LAFORET: All right. _ MR. WRAGE: And this -- you gotta remember, this PUD was set up in excess of ten years ago. MR. LAFORET: Oh, I understand. There's no money back guarantee -- MR. WRAGE: Right. Page 66 -1.. ~ September 30, 1996 MR. LAFORET: -- but at the present time -- MR. WRAGE: That's the way I understand it now. MR. LAFORET: All right. MS. LOUVIERE: In order for you to obtain a CO, you have to -- you would have to do significant roadway corridor improvements MR. WRAGE: Yes. MS. LOUVIERE: -- in order to satisfy the phase 1 requirements for that PUD development plan and that SDP. MR. WRAGE: I have no idea. I've heard figures anywhere from seventy to a hundred and fifty thousand to accomplish that depending on who you talk to. MS. LOUVIERE: An access turn lane is expensive. MR. WRAGE: Yes. And this is prqbably one of the major drawbacks we've had with selling this property. MS. LOUVIERE: Access to the site, yeah. MS. SULLIVAN: Madam Chairman? CHAIRPERSON RAWSON: Yes. MS. SULLIVAN: The permit has expired for your information. CHAIRPERSON RAWSON: Thank you. MR. WRAGE: It expired a long time ago as I recall. MR. ALLEN: Madam Chairman, I have a question for Mr. Wrage. Mr. Wrage -- MR. WRAGE: Pardon me? MR. ALLEN: -- how much time are you asking for, Mr. Wrage? MR. WRAGE: Well, the last time I was here, I asked for a year. You gave me six months. I would still like to have another year, but I would take six months. MS. LOUVIERE: Have you -- this is just recommendations. I mean, have you attempted to do a PDA to your planned unit development? I know it could cost a little bit of money, but if you got a plan -- a PDA and amend your PUD and remove this -- this turn lane requirement, then maybe your property would be a lot more easier to sell. MR. WRAGE: Unfortunately, I'm not in a position to make that decision. The board that I work for have said they're not going to spend any more money on it. We're going to sell it as is where is, and we have spent a lot of money here, and we are losing money every day. MS. LOUVIERE: I understand. MR. MCCORMICK: Can I ask you, though, are you saying that your only option is to really wait and to hope that a buyer comes forward? In your opinion do you have any other options? MR. WRAGE: Yes. It wou~d be difficult under banking regulations for us to finish and operate that thing. It really would, not totally impossible but -- and understand that whatever pressure this -- you're imposing on me which is fines, the federal regulators are doing the same thing. We want to sell that. MR. MANALICH: Madam Chairman, an additional Page 67 ~ ~ September 30, 1996 clarification. I've been provided a copy of the minutes from January 25 of '96, and I guess we're all right on this in some respects in the sense of the interrelationship of the orders because here's the little exchange that took place which led to this continuance order. And it starts out, Mr. McCormick, I think that a continuance may be appropriate because what I hear and agree with at this point, it appears that progress has been made or the efforts have been made. So we're not going to enact any fines today, but we'll relook at that six months from now and see what you did between now and six months. So unless, Mr. Pettit, you can advise differently, I think the continuance may be the cleanest way. Mr. Pettit, I think that would be fine. I was just going to point out that if we were amending the order, the order provides for the fines to begin to run on December 31, 1995, I think the way I read it. What we're really doing then is we're simply continuing this matter for six months to be reviewed at that time by the board. Mr. McCormick, six months from now we can amend the order. If we want to have started at a different day than 30, we can begin fines in -- in June if we so choose. Mr. could, yes. You could amend the order at that point. And but that's what's been pointed out to me. So it was kind of left a little bit. And, you know, Miss Cruz is correct in bringing to you the total figure based on that discussion as far as, you know, making you aware of that total figure from December 31. What you choose to do obviously, whether you want to include that period of continuance or whether you don't think it's fair as I mentioned and start with the 25th, then, you know, it's up to you. MR. MCCORMICK: That leads me to a basic question. Can you tell us what will be different in the upcoming six months than -- than what's transpired? MR. WRAGE: Other than, as you know, that area's developing. Over the past two-year period that we've really had it for sale, I've had a lot of tire kickers, so to speak, people that wanted to use our money. The last two people that I've talked to, the people that for whatever reason didn't consummate that deal, it was a cash deal. We were not involved in financing it. The people that I'm talking to right now is the same situation. It's a cash deal. MS. DEIFIK: So it's not listed? MR. WRAGE: Presently no; okay? I have I had a 3D-day listing with the people that are looking at it right now. expires today. So technically I do not have it listed today, and intend to if -- if these people don't make me an offer within the week or so, I will list it again. CHAIRPERSON RAWSON: Any further discussion? Any motion? _ MR. ALLEN: I'll make a motion that we give you three more months, sir. I don't think we can give you six more. And the reason I'm saying that is that historically, I mean, if it was -- I understand your position. It's a repossession. But if it was a gentleman with his house who came to us with the same story, we December Pettit, we it goes on, It I next Page 68 "::t T September 30, 1996 couldn't -- we can only go so far. And I'd like to make a motion that we give 90 days more extension but at the end of 90 days the $7,500 from roughly July 25 to August 29, okay, comes due and payable. CHAIRPERSON RAWSON: Is that a -- MR. ALLEN: Did that make sense? I'm saying that the six months that Mr. McCormick -- that we came up with last time around, we gave you a six-month extension. That six-month extension technically expired around July 25; is that correct? MS. CRUZ: Right. MR. ALLEN: So we do have an order imposing fine from July 25 till August 29. And my proposal would be that we waive that $7,500, round number, for another 90 days, give you a 90-day window in which time to sell it. MS. DEIFIK: Not waive it but suspend it. MR. ALLEN: Suspend it for 90 days. I'm not saying waive it. MR. MCCORMICK: I don't think that's a bad deal. I was leaning towards starting the fines on August 29 and not granting the continuance; in other words, to excuse you for the last six months that we gave you the first continuance and starting your fines in August and that they would move forward. I think that what Mr. Allen's proposing is -- is a little bit better for you because it gives you three months to take some action. But on the flip side, the $61,000 will be there in 3 months. CHAIRPERSON RAWSON: Before we finish with the motion and get a second, 90 days would take us up to about December 29. Maybe we should coincide this continuance to a board meeting, and I don't know if we have one in December. I bet we do. MS. CRUZ: We're planning to. CHAIRPERSON RAWSON: Merry Christmas. Terrific. That's like December the 26th. I'm sure we'll all be here. Do we have a date? MS. CRUZ: I don't have a date. CHAIRPERSON RAWSON: That's the fourth Thursday. MS. CRUZ: It will the fourth Thursday, yes, unless you guys want to vote of not having one, not to have one. MS. LOUVIERE: I -- I can -- I don't like -- I do not want to speak for other board members, but I probably will not be here December the 26th. CHAIRPERSON RAWSON: I'm sure I will not. MR. ANDREWS: I make three. MS. LOUVIERE: We're down three already. CHAIRPERSON RAWSON: Well, I think whether or not we have a board meeting on December 26, forget it. He said 90 days. That takes us to about Decemb~r 29, so we can have that date whether we had a board meeting. That's a Sunday, so we aren't going to have a board meeting that day. MS. LOUVIERE: I am -- I am reluctant to fine First Bank of Immokalee, now Florida Community Bank, $61,250 because we did give them a continuance. And I do feel that they are truly making an Page 69 -::t T September 30, 1996 effort to go ahead and resolve this. I like Mr. Allen's motion, and that's probably the way we will do go. However, when he comes before us, I think I'm going to start to ask for this matter to be resolved, whether you go PDA amendment or I want you to be a little bit more aggressive about selling that property. CHAIRPERSON RAWSON: Is that a second to Mr. Allen's motion? MS. LOUVIERE: Yes, it is. MR. WRAGE: Can I say something before you vote? MS. LOUVIERE: Yes. MR. WRAGE: I would be remiss if I didn't put this on the record. One of the things -- I feel like a half-dead horse, that the vultures are circling. But -- but there's some people out there that are well aware of what's going to take place today, and I'm sure they're going to have an input in their bidding. You know, they feel like we're about run out of time, and I've had people tell me that. And -- and I'm not begging for mercy, but I guess I am in the fact that I think you're really painting us into a corner. Like I said, we have complied with all of the vandalism, the bringing the building up to where it is today and still haven't been able to sell it. You're right. We probably will lower the price even further. I would be remiss. I mean, I'm just simply putting that in the record that I think you're painting me into a corner. MR. MCCORMICK: Aren't you already there to a certain degree if that's true, that they -- MR. WRAGE: That's true. MR. MCCORMICK: -- I mean, whether they're -- it's now or three months from now -- I guess what, you know, my question to you would be, the three-month continuance as -- as we've proposed it, it may carry the fines or it may not. I guess we would discuss that then. The motion that you made actually says it would include the six months of fines; right? MR. ALLEN: No, sir. My motion is it includes the 30-something-day fine; okay? That although we give a 90-day extension, the $7,500 is still due and payable. And I'm not trying to make it a burden on you, Mr. Wrage. But I'm looking at you as a banker saying I never get an interest-free loan either, so I'm trying to give you pennies on the dollar. MR. WRAGE: Okay. MS. LOUVIERE: So you're saying 90 days, and at that time he would have to -- if he has not come in with a CO, he has to pay -- starts paying -- he has to pay $7,500. MR. ALLEN: The 7,500 plus 250 a day. MS. LOUVIERE: Plus the 250 a day starts being incurred at that time. MR. ALLEN: I'm saying t~e $7,500 is due and payable -- MS. DEIFIK: That makes sense. MR. MCCORMICK: That's fine. I heard 75,000. That's why I thought the 61 was included. MS. LOUVIERE: Yeah, I think -- I like your motion, and I second it. Page 70 -:: ~ ~ September 30, 1996 MR. YOVANOVICH: And this motion is characterized as a revised order; is that correct, Mr. Manalich? We need to revise based on -- I don't have the transcript in front of me, so I'm relying on Mr. Manalich to tell me what happened at the last meeting. It sounded to me that it was a -- more of a continuance. And if you were in compliance, we'll consider whether or not to actually fine you, but there was no formal extension of the -- of the date to get into compliance; is that correct? MR. MANALICH: Right. It looks like the original order and findings of fact and conclusions of law is being revised by this action to set new compliance dates as outlined in the motion. MR. YOVANOVICH: Which would be July 25, 1996, as new compliance date with a 90-day suspension of fines for anything that occurs from July 25, 1996, or till the date they comes into compliance. MR. ALLEN: No, sir. That was -- that was not -- my motion is that we're gonna give 90 days from August 29. Let's call it till January the 1st for lack of terminology. I'm not going back to July 25. MR. YOVANOVICH: Okay. Then the motion is to revise your previous order to extend the date of compliance to -- MR. ANDREWS: 31st. MR. YOVANOVICH: I'm sorry. MS. DEIFIK: Well, no, to include a fine for the period between July 29 when it expired. MR. YOVANOVICH: 25th; right? MS. DEIFIK: July 25 and MR. ALLEN: Until August 29. MS. LOUVIERE: $7,500. MR. ALLEN: I'm saying we gave a six-month extension. The extension ran out the 25th of July in theory; okay? MR. YOVANOVICH: Right. MR. ALLEN: July 25 until August 29, roughly 30 days at 250 a day, $7,500 fine that should be imposed that we're -- MR. YOVANOVICH: Oh, what should be imposed. MR. ALLEN: What should be imposed; okay? MS. DEIFIK: How do you pick August 29? I mean, I know that was an inspection date, but it's still not in compliance today. MR. ALLEN: Well, I was trying to draw a line in the sand saying here's -- MS. DEIFIK: Okay. It's just arbitrary. That's fine. MR. ALLEN: Just -- just arbitrarily drawing a line -- MS. DEIFIK: Fine. MR. ALLEN: -- saying here's a month MS. DEIFIK: I like it. MR. ALLEN: -- beyond th~ six months, okay, that the fines should be imposed. MS. DEIFIK: Okay. MR. ALLEN: But instead of in lieu of imposing the fine today, I'd like to suspend the fine until, let's say, December 29. Page 71 ~. ~ September 30, 1996 MS. LOUVIERE: And hopefully he'll have it sold by then and he can pay the fine and move on. MR. ALLEN: But on the 29th of December, if it's not sold or a CO hasn't been obtained, okay, our $250-a-day fine that we had previously 7 months ago go back into effect. MR. MANALICH: So you would -- as of December 29, as I understand it, there would be a definite order imposing fine for 7,500 for sure to be recorded. MS. DEIFIK: Right. MR. ALLEN: Correct. MR. MANALICH: But in addition, you would also be accumulating from August 29 and beyond at -- MS. DEIFIK: No. MR. MANALICH: -- 250 a day also. CHAIRPERSON RAWSON: No, I think from December 29. MS. DEIFIK: From January 1, '97, onward. MR. ALLEN: Correct. From that point -- from August from December 29 forward the 250 begins. MR. MANALICH: Okay. MR. ALLEN: I'm trying to go -- I'm trying to look on their side and be helpful saying the 61,000 we have to date we really don't have a life safety issue going on. They have tried substantially with Mr. Budd to get things into compliance. They haven't sold it. But on the other hand, we need to have the pressure on your bank to bring it back into compliance because if we -- if we set a precedence of just letting it go on and on and on -- MS. DEIFIK: Everybody will do that. MR. ALLEN: -- right, we're going to be in the same boat every -- every time. MR. MANALICH: So as of December 29, if it's not in compliance, they would be liable, and an order imposing fine would be entered for 7,500. And then beyond December 29, it would also accumulate at 250 a day? MR. ALLEN: Right. CHAIRPERSON RAWSON: Okay. That's the motion, and it's been seconded. Is there any further discussion? All in favor signify by saying aye. All opposed? The motion then carries. MR. WRAGE: Thank you. CHAIRPERSON RAWSON: Thank you. MS. DEIFIK: Good luck. CHAIRPERSON RAWSON: That ends the old business. There are no reports. Let's talk about the next meeting dates, and that's a plural. Is there a meeting o~ October 24, and is there also a meeting on October 30, and is there also a meeting on October 31? MS. CRUZ: That's correct. MS. DEIFIK: Say that again. 24th, 30th, and 31st? Is that: what you said? CHAIRPERSON RAWSON: Well, it occurs to me that on the Page 72 .~ ~ September 30, 1996 -- and I hate to say this to those of you who were absent -- on the 30th and 31st is -- and correct me if I'm wrong, Miss Sullivan -- is the extension of the evidence to be heard on the Lely Barefoot Beach. MS. SULLIVAN: That is correct, and October 24 is our regular menu. CHAIRPERSON RAWSON: So those of you who didn't hear the first day of the testimony -- MS. DEIFIK: I read the transcript. CHAIRPERSON RAWSON: -- I think probably don't have to come back on the 20th -- 30th and the 31st because there probably will be some objection to your jumping in at that point I would bet. MS. DEIFIK: Can we get -- is there any way we can get that resolved by -- by counsel speaking with counsel for Lely because I don't want to redo my schedule if I don't need to? I mean, I've read the transcript but -- MS. LOUVIERE: I did the same thing. I asked for the transcripts of that previous meeting so I can familiar -- familiarize myself with this agenda item. CHAIRPERSON RAWSON: I think probably we'll need you to discuss this with the Cummings and Lockwood attorneys that are involved in that case, ask them if we could have the board members who were absent before be here on the 30th and 31st having read the transcript, giving them an opportunity to bring us up to date. MR. MCCORMICK: What's the procedure on that? Is it -_ is it up to -- to them if they object to it or -- CHAIRPERSON RAWSON: Well, let's see. We looked it up in our rules and procedure which have really never been adopted. And I can't remember what we decided. MS. DEIFIK: Well, do Mr. Yovanovich or Mr. Manalich have any input? What -- what happens in a situation like this? MR. MANALICH: Well, first of all, it's my understanding that, Mr. Yovanovich, you are not counsel in that -- to the board on that case, is that correct, because of a conflict issue? MS. DEIFIK: Who is? CHAIRPERSON RAWSON: I think Mr. Kowalski, and he's here. MS. DEIFIK: Mr. Kowalski, enlighten us. CHAIRPERSON RAWSON: But we did have this discussion, did we not? We had a discussion I know about whether or not we had a quorum. MR. KOWALSKI: May I? CHAIRPERSON RAWSON: Yes. MR. KOWALSKI: Frank Kowalski for the record. My recollection is that we also had a discussion, Madam Chairman, about this and -- and that the -- it was my recommendation that absent board members could participate in the vote by reading the transcript only under the circumstance that both the county staff and the property owner through their attorney consented to that procedure because reading a dry transcript is not the same as having attended a live hearing. I don't recall what the parties determined as to whether that would be acceptable or not. My -- I believe that there was a Page 73 .~ ~ ~ September 30, 1996 determination that it would not be acceptable, but I'm not 100 percent sure of that, and I did not bring my notes. MR. MCCORMICK: My understanding in reading the transcript was that we were going to be excluded because we weren't there that day. CHAIRPERSON RAWSON: true. MR. KOWALSKI: That is my recollection, Madam Chairman. MS. DEIFIK: Can we get that resolved absolutely so that those of us who were not here can plan accordingly? MR. KOWALSKI: If -- if I'm instructed to do so -- and I don't know that it would necessarily require a motion. But if I am instructed to do so, I will contact both Mr. -- Mr. Hazzard and also county attorney, Ramiro, to -- to see if -- if both sides agree. And I would recommend to the board that if either side objects, I will simply advise the board that that procedure would not be acceptable. MS. DEIFIK: Could we have a deadline by which that's done because I have trial dockets and things I need to adjust? I mean, I'll be happy to be here if -- if, you know, if it's acceptable. But if it's not acceptable, I'd like to know as soon as possible so I can -- MR. KOWALSKI: Yes. MS. DEIFIK: Let's set a date by which we would know. MR. KOWALSKI: Okay. How about by Friday of this week? MS. DEIFIK: Great. CHAIRPERSON RAWSON: Let me do this to make life easier for you. Which members does -- of the board does this impact? Obviously it impacts those of us who have to be here for three days in October. But which members of the board does it impact on the 30th and the 31st? In other words, who was not here? There's three of you I think. Mr. McCormick and our two other ladies. MR. LAFORET: I thought there was three. MR. MCCORMICK: Uh-huh. MS. DEIFIK: Mireya Louviere, Celia Deifik MR. LAFORET: If only four of us hear -- if only four of us hear the case -- CHAIRPERSON RAWSON: Right. MR. LAFORET: -- it has to be a unanimous decision CHAIRPERSON RAWSON: (Chairperson nodded head.) MR. LAFORET: -- because if it's not a unanimous decision, then it's not the majority of the board. CHAIRPERSON RAWSON: That's correct. MR. LAFORET: So if there's only gonna be -_ MS. DEIFIK: And that's why I thought in the transcript they were saying they wanted the other people. MR. LAFORET: -- four of .us show up, what the hell's the point in having the hearing? We can't vote on anything. MS. LOUVIERE: I think that what is being said here is that if there is some opposition from opposing attorney as what's being said here is that if there is some opposition other attorneys that the -- the three board members cannot Un -- unfortunately I think that's I think from the be here, I Page 74 .:t ~ September 30, 1996 would like to go on the record as opposing that decision because, I mean, that would like -- exactly. It would reduce the board membership drastically, and I do not feel that -- that -- I mean, we have the right to hear -- to hear this as a full board. I mean, I'm sorry we were not here on October the 20 -- 24th. But I think that if we -- if we read the minutes that that would give us a -- a good enough background on this -- on this issue and this matter. MS. DEIFIK: You always have courts switching judges, and the judges come in and read the file. I mean, I would say before you go to -- to counsel and say we give up -- MS. LOUVIERE: Exactly. MS. DEIFIK: -- that we -- we study the issue. CHAIRPERSON RAWSON: Well, I think that one of the persuasion factors, not that I'm telling our attorney what to do, is that if any of the four -- one of the four of us isn't here that it's not going to go forward for whatever reason because then we wouldn't have a quorum. In addition, it's going to require, as you properly pointed out, a unanimous vote from the four of us which we only do on easy cases, and this one is not an easy case. So maybe those factors will persuade them to let us bring our other three aboard. MR. MANALICH: Madam Chairman -- MR. LAFORET: There's one other thing we can do. If they object to all of the members attending the hearing, we could start the hearing again on Friday morning and stipulate they only have two days. It's their decision. They would not or they could not mutually agree that the board members couldn't sit and consider the minutes of the meeting; therefore, that's their choice, and we'll start the hearing again on the 30th but still only give them 2 days to finish the complete job. MR. MANALICH: Madam Chairman -- CHAIRPERSON RAWSON: Yes. MR. MANALICH: -- I feel compelled to become involved at this point. As you mayor may not be aware of, Mr. Bryant from our office had presented this to the board previously. Shirley Jean McEachern and I now have the dubious -- CHAIRPERSON RAWSON: I know. MR. MANALICH: -- distinction of continuing forward with this matter instead of Mr. Bryant for various reasons. In any event, I'm a little uncomfortable, and I don't think any decision should be made if Mr. Hazzard and/or anyone representing the other party here is not present or is not being given input here today because this -- you know, they may have particular views of this whole situation which they feel compromises their interest. So I think maybe you can -- what I would recommend would be that you give some direction to Mr. Kowalski of what essentially you want him to explore and maybe get back with either the chairman or whatever manner you want to do it but after Mr. Hazzard and his colleagues have an opportunity to have input in some manner, whether it be through Mr. Kowalski or whether it be actually before this board in some manner. CHAIRPERSON RAWSON: Well, I appreciate your concern, Page 75 -~ ~ ~ September 30, 1996 and -- and we're not going to make any decision about that. We're just discussing it. And so I guess suffice it to say that we are directing you to talk to the other attorneys and to Mr. Manalich and see what would be acceptable. MR. KOWALSKI: Miss Rawson, I also was called upon at the previous meeting to render an opinion without anticipating this question coming up. And as an attorney, you know that it's always better to -- to research those questions. And what I'm hearing from the board is that it might be a good idea for me to conduct some basic legal research to see if this issue has come up in Florida law before and -- and if it has instruct me to incorporate that into my discussions with Mr. Hazzard or Mr. Manalich. CHAIRPERSON RAWSON: Absolutely so instructed. Thank you. MR. MCCORMICK: Let me -- let me ask -- MR. MANALICH: You could also -- if I'm not available, Miss McEachern's co-counsel on this matter so either one of us. CHAIRPERSON RAWSON: Thank you. MR. MCCORMICK: Let me ask simply if the four board members hear this again and there's not a majority vote, then we have to rehear the whole case? CHAIRPERSON RAWSON: Correct. MR. MCCORMICK: We've wasted three days? CHAIRPERSON RAWSON: Or if one of us is not here for some reason, then it's going to be continued again. MR. MCCORMICK: I don't really like that -- that possibility that we're going to waste three days. You know, I hate to think that we'd -- that you spent that one day hearing the case to begin with, but I don't see where this is going to be -- this outside counsel, the respondent, I don't see why they're going to be making the decision for us. I mean, if they don't like the fact that all seven of us are going to hear it, then we just -- we can CHAIRPERSON RAWSON: Start over. MR. MCCORMICK: -- choose to rehear the hearing MS. LOUVIERE: I-- MR. MCCORMICK: -- and drive on, so it really is our decision in the end. MS. LOUVIERE: I agree with you. I do not see why this is even brought up. It's being discussed with opposing counsel like, hey, this is what -- I mean, how do you feel about this. I'm confused as to why this is even -- MR. MCCORMICK: It really is our decision one way or the other. CHAIRPERSON RAWSON: Well, it is. And I'm -- I'm very keenly aware of the problem the county attorney's office has. As a matter of fact, I'm not even sure the two of you were even in here when this was going on. MR. MANALICH: We were not. CHAIRPERSON RAWSON: And so you have the same distinct pleasure as our three board members in reading a dry transcript and picking up the case at that point which is extremely difficult. And I Page 76 "'~ .... ~. ~ September 30, 1996 as an attorney understand that. So there are really five of us with this difficulty here. MS. DEIFIK: And it may be the whole county if it has to be reheard. CHAIRPERSON RAWSON: Well indeed. MR. MCCORMICK: Well, I would propose that the seven, the full board, hear this matter. And whether we do it through reading the transcripts or we restart, I'm indifferent to that and that we can receive feedback from the opposing counsel. MS. DEIFIK: Mr. Kowalski, did you hear all that? MR. KOWALSKI: Yes, I did. Yes, ma'am. MR. LAFORET: I'm concerned that we -- that we must settle this before we even come here because if we, the board, make this grand and gorgeous decision, if seven members are going to hear it, three members have read the transcript and one of their attorneys objects, what the hell do we do then? MS. DEIFIK: Well, that's why Mr. Kowalski's going to do the research and be prepared. MR. LAFORET: All right. But if the seven of us hear it under the condition that we continue the case, that's one thing. If the seven of us hear it under the condition that we have to start over on the hearing, I know that one of those attorneys is going to object on the basis that he said it would take him two days to present eight witnesses he had. Now, if we start over again, we're adding another day or day and a half to the case which would make it a three-day case. So-- CHAIRPERSON RAWSON: Which it's already been. MR. LAFORET: -- he did say that he would need two days with his eight witnesses or nine or whatever he had. CHAIRPERSON RAWSON: Well, Mr. Kowalski, if you would research it, discuss it with the county attorney's office and with Cummings and Lockwood, attorneys of record, and then if you will let me know, I will get the word to the board members. And if you can do that by Friday, we would be very grateful. MR. KOWALSKI: Thank you, ma'am. CHAIRPERSON RAWSON: And so we will then probably adjourn until October the 24th at 8:30 at which time we have another regular docket, not a special hearing. Anything else to come before this board? MR. LAFORET: Are you going to buy lunch? MS. LOUVIERE: Don't we have another item? MR. ALLEN: Can we do the other item? MS. LOUVIERE: Don't we have another item? CHAIRPERSON RAWSON: Do we have another item? MS. LOUVIERE: Yes, yes. We are -- after that do we have to adjourn -- do we have. to adjourn this board and then open up as the new board to hear the new item? CHAIRPERSON RAWSON: So the Code Enforcement Board of Collier County is now adjourned. (A discussion was held off the record.) MR. KOWALSKI: Before you all take a -- take a break, Page 77 -~ ~. ~ September 30, 1996 may I address the board for one minute, please, on the record? CHAIRPERSON RAWSON: Yes. MR. KOWALSKI: For the record -- for the record, my name is Frank Kowalski, and I am going to be counsel for the nuisance abatement board today. And the reason that I asked to address you is because before you break I wanted to bring it to your attention that the only item on the agenda for this board involves an alleged violation. And I have reviewed the -- the documents that have been presented to the board in connection with that. I've spoken with the county attorney's office here and also with Vince Murphy who is counsel for the property owner. And -- and based upon those discussions, there's -- there's a question that I raised regarding whether the notice of the violation was technically sufficient in terms of having -- giving the violator the number of days' notice required by your ordinance that -- and a notice that included all of the elements that your ordinance sets forth. And af -- after discussing that with the property owner's attorney and with county attorney, it seemed to me that the property owner was -- would not object to a postponement and that the county attorney's office felt that it was in the best interest of all concerned if -- if this board postponed that item. So I don't know what your pleasure is going to be, but there's no point in discussing a continuance after lunch. You can I thought you might want to at least address that issue right now. CHAIRPERSON RAWSON: Thank you. Would -- would this item then be heard on our -- October 24 after the Code Enforcement Board? Is there an agreement by the county to put it off until October the 24th? MS. MCEACHERN: Shirley We can have it on the 24th. some other dates in October. do that. MS. LOUVIERE: Well, probably now that we were going to be here three days already, we're not going to look real excited about another day. MS. MCEACHERN: A fourth day. MS. SULLIVAN: Can't find another day. We haven't set anything for the October regular agenda, so we can play with it a little bit and have this the first item. That's probably the most expedient way to do it. We can make sure the agenda doesn't get too bogged down because we haven't sent notices out yet if that's what you like. CHAIRPERSON RAWSON: That'd be great. Well, if there's an agreement between all parties, Mr. Murray, would you like to say something? MR. MURPHY: May it plea$e the board. My name is Vince Murphy. I represent the -- the homeowner in this situation, the property owner. I was -- I sort of agree with Mr. Woodward about appearing before the board having watched a full morning. It's a lot more formal than I had expected. I had come to the board basically to Jean McEachern on the record. It would be the first item, or we have We could specially set it if you want to Page 78 .....l. ~ September 30, 1996 discuss the situation, and I really had no objections to going forward on that notwithstanding the shortcomings in the notice. But if it is the board's pleasure and the county's pleasure that we continue it, then I'm -- I'm very happy to come back at a later date as well. My -- my concerns, if I can throw two minutes' worth of stuff at you since apparently this is the first case that's being brought before the nuisance abatement board -- CHAIRPERSON RAWSON: Correct. MR. MURPHY: -- and some of the difficulties I think that we as a community and you as a board are going to be facing as a nuisance abatement board are coming forth in this case, and that is the question comes up how high is up. You know, how much abatement is sufficient abatement? And these are the sorts of issues that I think the board is going to end up having to discuss no matter when we continue this case to or any other case. The -- the ordinance speaks of reasonable measures to abate a nuisance. On the one hand, you have the county shaking its head saying that's not enough. And on the other hand, the owner is is coming in and saying, I've done this and this and this to abate the nuisance. So these are the sorts of issues that I had come to discuss with the board today. If we continue the case, maybe it's just a seed that I can plant in your -- in your heads that we can be thinking about when we come back at a later date to discuss whether what my client has done is enough or not enough. But that's -- that's essentially the -- the nuts and bolts of what I wanted to discuss with the board today in any event so -- MS. LOUVIERE: We could always make stipulations in our order saying that these would be the things that would constitute an -- the abatement of the nuisance. MR. MURPHY: That's -- that's precisely what I was coming to the board to ask for today. And whether we do it today or later -- CHAIRPERSON RAWSON: Well, we're going to need to probably have the advice of our attorney in -- in delineating those things and probably will have more time to do that on the 22nd and -- MS. MCEACHERN: 24th. CHAIRPERSON RAWSON: -- and so we appreciate -- or 24th. But I appreciate your giving us some food for thought, and you probably gave Mr. Kowalski some food for thought too. MS. DEIFIK: Can I ask -- it seems to me that when it was first discussed constituting this abatement board there was some discussion that this is being done in other areas around the country, and -- and I would ask that both counsel, all counsel be prepared to give us some insight into whether these issues you're raising have been addressed in those areas and how. I mean, I can't -- MR. MANALICH: Yes, specifically I -- MS. DEIFIK: -- I can't believe we're reinventing the wheel. MR. MANALICH: Yeah. I would specifically recommend to Page 79 -."" .... ~ September 30, 1996 everyone Dade County is the one that I think has had a great deal of experience with this. Apparently there's also case law out of St. Pete indicating that they're utilizing this type of board. MS. DEIFIK: Are we allowed to get material in advance of a hearing from all counsel through you, Miss Chairman? CHAIRPERSON RAWSON: Certainly. We've done it before. MR. LAFORET: I read the word abatement as not applying to any specific case but as applying to the general conditions covered by the authority of the board. I read that applies to a general area, not to a specific case. I mean, if -- to answer your question, what constitutes a basement -- abatement, whether you -- whether you -- whether you only meet -- your people only meet once a week or once a month in violation, is that really abatement? I don't think that's an issue. MR. MURPHY: Well, the difficulty in this particular case, the -- the allegation is that there are people who are selling proper -- selling drugs on the property, and there have been a number of arrests and things like that. So I guess the question would be do we need a conviction to establish that there has been actual criminal activity on the property. Does the property owner's reporting it to the police constitute abatement, or MS. MCEACHERN: Madam Chairman MR. MURPHY: -- you know, does he have to hire security guards? MS. LOUVIERE: I'd recommend that we do not listen to this item now which is what is happening. Right now all we are asking -- all we are looking at is continuing this item. And in addition to that, we're going to look at other nuisance abatement ordinances like, for example, Dade County and see not only what constitutes abatement, what their jurisdiction is, how they approach it, and how they can enforce it. I always thought that would be an issue we should look at, but I'd rather not hear the item right now. MS. MCEACHERN: Right. CHAIRPERSON RAWSON: Well, basically I never did really call to order the Public nuisance abatement board of Collier County, Florida, yet. And so I don't have to adjourn it. MS. LOUVIERE: And we're not here. CHAIRPERSON RAWSON: I've adjourned the Code Enforcement Board, and I believe by agreement of the counsel we will then have the Public nuisance abatement board of Collier County meet for the first time on October the 24th at 8:30. MS. MCEACHERN: Could -- Madam Chairman, could we also have this serve as our notice for that October 24 hearing and that there would be no more objections to the -- the notice that's been issued? MR. MURPHY: So stipulated, yes, ma'am. CHAIRPERSON RAWSON: Thank you. MR. MURPHY: October the 24th you said? CHAIRPERSON RAWSON: 8:30, same room. MR. ANDREWS: Bring your lunch. CHAIRPERSON RAWSON: Okay. I guess we've already Page 80 ":l" ~ September 30, 1996 adjourned. Thank you. There being no further business for the Good of the County, the meeting was adjourned by Order of the Chair at 12:50 p.m. CODE ENFORCEMENT BOARD IYJ~L~~ / M. J RAWSON, CHAIRPERSON TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING BY: Shelly Semmler Page 81