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CEB Minutes 10/30/1996 1996 Code Enforcement Board October 30, 1996 October 3D, 1996 ~ SPECIAL MEETING OF OCTOBER 3D, 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 8:45 a.m. in SPECIAL SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRPERSON: M. Jean Rawson Lou Laforet ALSO PRESENT: Frank X. Kowalski, Attorney for CEB Ramiro Manalich, Assistant County Attorney Shirley Jean McEachern, Assistant County Attorney William J. Hazzard, Attorney for Lely Barefoot Beach Property OWners' Association Linda Sullivan, Code Enforcement Director Page 1 1 0-28-1 996 1: 59PM FROt" 643 8345 P.l ~ COOl!!: ~NFORCl!:MENT BOARD OF COLL:I~R COUNTY. FLOR:IDA A~BH~A Date: October 30, 1996 at 8:30 o'c~ock A.M. Location: Co~1ier County Government Center, Admn. B~dg, 3rd Floor NOTE: ANY PERSON WHO DECXDES TO APPEAL A DECISION OF THIS BOARD WXLL NEED A RECORD OF THE PROCEEDXNGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEBDXNGS XS MADE, WHXCH RECORD :INCLUDES THE TESTIMONY AND EVJ:DENCE UPON WHICH THE APPEAL IS TO BE BASED. NB:ITHER COLLIER COUNTY NOR THE CODE ENPORCEMENT BOARD SHALL BE RESPONS:IBLE FOR PROV:IDING TH:IS RECORD. 1. ROLL CALL 2. APPROVAL OF AGENDA 3. APPROVAL OF MINUTES N/A 4. PUBLIC HEARINGS N/A ... s. NEW aUSI:NESS ~ N/A 6. OLD BUSI:NESS BCC VB. LELY BAREFOOT BEACH PROPERTY OWNERS ASSOC., :INC., A FLA. CORP.AND LELY BAREFOOT BEACH MASTER ASSOC., :INC. A PLA. CORP. CBB NO. 96-012 7 . REPORTS N/A 8. NEXT MEETI:NG DATE November 25,1996 9. ADJOURN October 30, 1996 ~ CHAIRPERSON RAWSON: Let's call the order -- the meeting to order of the Collier County Code Enforcement Board. I guess we'll have roll call. MR. LAFORET: Lou Laforet. CHAIRPERSON RAWSON: Jean Rawson. MR. LAFORET: Loyal, dedicated. CHAIRPERSON RAWSON: Obviously there are only two members here. This is the continuation of the case of board of Collier County commissioners versus Lely Barefoot Beach Property Owners' Association Inc. and Lely Barefoot Beach Master Association Inc. There are only four members that heard the first day of testimony, so those same four members are needed to hear the continuation of the trial. Two of those members are not with us today. Mr. Allen was called away on business, and Mr. Andrews is not well. So obviously we only have two of the members of the original four which is by my count not a quorum. What is the pleasure of the two attorneys? MR. MANALICH: Good morning, Madam Chairman, Member Laforet. Ramiro Manalich, chief assistant county attorney, along with Shirley Jean McEachern, assistant county attorney, on behalf of Collier County. We have discussed with opposing counsel, Mr. Hazzard, the situation. And obviously we'll hear from him in just a couple moments. But I believe we have agreement between the parties as to some basic suggestions to you in this situation. Basically it would be that we find another date in the near future which appears at this point to perhaps be D~cember 12 and 13 to continue this matter as opposed to starting over and, secondly, that we continue with the four members that heard the entire full day of testimony in this case. At this point I'll let Mr. Hazzard -- CHAIRPERSON RAWSON: Mr. Hazzard. MR. HAZZARD: Madam Chairman, I simply would echo what counsel has said and stated my position as well as his. 12th and 13th of December work on my calendar, although obviously we've not had an opportunity to contact all our witnesses. It's my hope that with a date some six to seven weeks out witnesses will be able to accommodate with scheduling, and I think -- I think we're in agreement that it should proceed from the point where we left off and it should proceed with the four members who heard the first day of the hearing. CHAIRPERSON RAWSON: My concerns are twofold: First of all, on a personal basis, I just called my office. I can -- I can be here on December 12 until four o'clock. I can be here on December 13 only until noon. So that's as much of my time as -- as I can give. My concern is one of our members is not in wonderful health. And what if he isn't here and you're gonna be back in the same spot again? Has there b~en any thought given by either of the attorneys to starting over again with the original board so we aren't going to have this problem? MR. MANALICH: I'll let Mr. Hazzard address that first. MR. HAZZARD: Yes, Madam Chairman. We've discussed that, and I believe we're in agreement that -- that that would not be Page 2 October 30, 1996 ~ a satisfactory solution. From my own point of view -- and I can't speak for the county -- but to me that gives the county a -- frankly, a second bite at the apple. It allows the county to refurbish the testimony that was given on the first day and to -- to essentially start over already knowing my position and my tact with respect to the various witnesses the county plans to put on, and I believe that would be extremely prejudicial to my client's case. CHAIRPERSON RAWSON: Well, I don't disagree with what your position is. My concern is if we're here again and this gets continued again or never gets heard, you know, then what position does that put everybody in? MR. MANALICH: I guess what we're saying is that we're willing to give it one more shot to see if we can go with the four. Obviously we on the county want to preserve as clean of a record as we can in the event that this case goes beyond this forum. And we think that both sides agree that this would be the way to do it. And what I would suggest would be that we give one more try at impaneling this board with the four members. If at that point there's another problem, then I think the whole situation has to be looked at anew from -- at that point but -- MR. LAFORET: Of course, there's always the possibility that even with four members on the board you'll only get a majority vote. One might be a dissenter. MR. HAZZARD: Right. MR. LAFORET: What do you do then? CHAIRPERSON RAWSON: I think a majority vote would let me ask my attorney. MR. KOWALSKI: Yes. Under -- under your ordinance a majority vote carries the day. Obviously, Mr. Laforet, though, if it was a -- stYmied at two to two and you couldn't get a motion pass __ passing either way, then that would create a dilemma. MR. HAZZARD: Our position would be that a two-to-two vote would -- would mean that the county had failed to meet its burden of proof in the case and that the county had failed to prove the violation exists as alleged. CHAIRPERSON RAWSON: Well, I guess we'll hear the legal research on that at a later date if that were to be the case. MR. LAFORET: Did you hear what he said? MR. MANALICH: I was speaking to my co-counsel. I'm sorry. I didn't. MR. LAFORET: Would you read it back to him, please? (The requested portion of the record was read.) MR. MANALICH: Hopefully we won't have to reach that issue from our perspective. But, you know, the only other alternative I can think of, Madam Chairman, would be that if we try to impanel the original four and for some reason we're not able to do that the next t~, then if the paramount goal was to preserve the original four __ excuse me, if the goal at that point would be to -- that we can't have that four -- any assurance that they'll convene, then another alternative would be to have the full board read the transcript without starting over. But I believe Mr. Hazzard would object to Page 3 October 30, 1996 ~ that. CHAIRPERSON RAWSON: Well, I'd like to know that this case is going to get heard not only in my tenure on this board but in my lifetime. MR. LAFORET: I said that. MR. HAZZARD: You are a young woman, Madam Chairman. CHAIRPERSON RAWSON: Thank you. MR. HAZZARD: I think that's entirely possible that we will conclude in your lifetime. CHAIRPERSON RAWSON: Well, let me simple question about conclusions. Is that I have to be somewhere at noon on afternoon is already scheduled, can we case by December 3 -- 13 at noon? MS. MCEACHERN: No. Madam-- MR. HAZZARD: Madam Chair -- go ahead, Counsel. MS. MCEACHERN: Madam Chairman, Shirley Jean McEachern for the record. I think that the county -- that we need at least two full days, at least two. Now, another alternative that I've been talking to with my co-counsel here is we would like to try to go with the original four and not have to start over. But an alternative if it's to preserve, you know, the testimony on the first day, I've seen it done in courts before where we actually read -- go through that transcript again with the original witnesses back but we're stuck with the same questions and they're stuck with the same answers. You know, as an example, the first witness .the county called was Richard Ewing, and he could go through, and he's a principal surveyor with Coastal Engineering. And if we can get him back, he could actually go through what his assignment was and what he did and go through his exhibits. I mean, it's an alternative. It's not one that we like and -- but it could be a last resort. CHAIRPERSON RAWSON: ask you another very it possible that given the fact Friday, December the 3d, and my complete the testimony in the Well, I guess we're not there yet MS. MCEACHERN: Yeah. CHAIRPERSON RAWSON: because that's only if we started over again with the original seven-member board. But now we are only with our four-member board, and you're telling me that we can't finish by Friday, the 13th -- Friday, the 13th. MS. MCEACHERN: If you end at noon, no. CHAIRPERSON RAWSON: Okay. So then we probably need another day. MR. HAZZARD: Madam Chairman, as to the issue of being able to end at noon, I think it's entirely possible that testimony could end by noon on a second day. However, I'm sure the board then may have questions and the board will have discussion and that sort of thing. And I don't think it's quite in the realm of possibility that that could all conclude by noon. I would expect and we've had discussion prior to today that the county's remaining witnesses would take the morning today and that my witnesses would take the afternoon and tomorrow morning to perhaps early afternoon and would anticipate Page 4 October 30, 1996 ~ that we would need two days to conclude allowing the board time for discussion and thorough analysis. CHAIRPERSON RAWSON: As long as we're clearing our calendars, why don't we look and find another day in December. MR. MANALICH: Well, here's another suggestion which would be I think it's -- we were looking at Thursday, February 12 -- I mean December 12 and Friday, December 13. You're only available until noon on Friday. But based on what counsel estimate as their time __ and perhaps the county might take a little longer than -- than just a half day. I don't know. We might be able to keep it to that. I'm not sure. But in any event, I would suggest if we complete the witnesses and the taking of evidence by noon on the 13th, if you wanted, we could convene for closing arguments and deliberations on Saturday, the next day, if -- if you wanted to wrap it up then because then we don't have to drag the witnesses in. CHAIRPERSON RAWSON: Well -- and I can't speak for the two people who aren't here, and I don't even know if those dates are available on -- Mr. Allen is my major concern because obviously he's a businessman, and I don't know if he's available on those days. I can call and find out. Mr. Andrews is a concern because his health is not good. I can't imagine anybody's going to be real happy about coming back in on Saturday morning. And on Thursday, December the 12th, you know, ordinarily I would say it's no problem. I'll be willing to go late, but I can't. I have to -- you know, we'll have to stop at four. MR. MANALICH: There was I believe according to the board room calendar one day available in November, a full day, and therr,of course, we'd have the one in December. But I don't know if counsel and you want to split the case up essentially a month apart. CHAIRPERSON RAWSON: Well, it's already split up. MR. MANALICH: Mr. Hazzard, I was saying that there would be I believe on the calendar one day in November, and then we'd have the one full day in December if you're willing to split it up in that manner. MR. HAZZARD: What was the -- what was the November day? MR. MANALICH: November 8. MR. HAZZARD: Eight I can do. Madam Chairman, frankly I don't have a problem myself in doing that, although I want to make sure on the record that I CHAIRPERSON RAWSON: I already know I can't do 8. MR. HAZZARD: Okay. CHAIRPERSON RAWSON: I had a trial continued from today till November 8. I had to beg Judge Hayes. MR. HAZZARD: Do you thi~k he could let you in by about eleven O'clock today? Well, Madam Chairman, my only point would be if we bifurcate the remaining two days that I -- I want to be up front and have the agreement of the county's counsel that that certainly would give my case a bit of an advantage, namely that I would have the opportunity for the county's witnesses to conclude and then I would Page 5 October 30, 1996 ~ have a period of time to reevaluate and -- and make strategic decisions that otherwise would be made in a matter of minutes. However, if the county's willing to waive any possible objection to that bifurcating, then that would be something that we could accommodate as well. MR. LAFORET: Is everybody thinking that you can have no assurances that you'll have the four members in the month of February, you know, in the event you get a change in -- in December? It's possible it could be the end of the case. We don't know. CHAIRPERSON RAWSON: I don't really know when everybody's term expires. I know mine expires in February. MR. LAFORET: Mine does too. CHAIRPERSON RAWSON: So that's two of us that will be gone in February. MR. LAFORET: And I think Mr. Andrews February. CHAIRPERSON RAWSON: MS. SULLIVAN: Madam CHAIRPERSON RAWSON: Allen's ends in us? Miss Sullivan -- Chairman -- -- do you have a suggestion for MS. SULLIVAN: I do. Linda Sullivan for the record, code enforcement director. Chris tells me that there's half day on the 16th so you go the 12th, the 13th like a full day and a half day, then finish up the next on the 16th. CHAIRPERSON RAWSON: Is that Monday, the 16th of December? Morning or afternoon? MR. HAZZARD: I'm -- I'm not available on the 16th, Madam Chairman. . -MR. MANALICH: Is there another location that could be used that would be easier to make -- reserve? CHAIRPERSON RAWSON: Miss Sullivan says yes. I have to call my -- MR. MANALICH: It'd have to be something that obviously could, you know, properly accommodate everyone and any public. MS. SULLIVAN: There's a conference room upstairs that we thought about using before that can accommodate I think about 20 people. MR. MANALICH: We're obviously going to need microphones and everything to be able to work for the court reporter and everyone else. CHAIRPERSON RAWSON: I think Mr. Hazzard said he's not available on the 16th. MR. HAZZARD: Correct. I'm not available on the 16th, . but I thought we were now talking about room availability, perhaps moving out of this -- out of this chamber. I can tell you all the dates that I'm available now through the end of December. MR. MANALICH: The code enforcement director I thought had a good idea. What about if we found a courtroom in building L? CHAIRPERSON RAWSON: I'm sure you could do that. MR. HAZZARD: Madam Chairman, I think we -- we did discuss that -- Page 6 October 30, 1996 ~ CHAIRPERSON RAWSON: MR. HAZZARD: -- at session, and the concern courtroom that there's a I'll go anyplace. CHAIRPERSON RAWSON: There's only four of us. We can all fit behind the chambers, the desk. MR. MANALICH: The jury box obviously would be the only other alternative in the courthouse. CHAIRPERSON RAWSON: I'm certain that you can do that. You know, the problem with those courtrooms is I think if you call over there and ask they'll tell you that they can't let you know till the last minute because they're never sure about jury trials and what courtroom availability is. And if you are over there every day like I am, you know they -- judges all switch courtrooms a lot. I'm sure that they'll put you in pencil, but they won't tell you for absolutely sure until the last minute. MR. HAZZARD: And I believe, Madam Chairman, we would be subject to being bumped at -- CHAIRPERSON RAWSON: No question about it. MR. HAZZARD: -- at any time, even in mid hearing in the courthouse. MR. MANALICH: Well, then I think what we're looking at is if we take that day and a half on the 12th and 13th of December to try to get in all the testimony and then we reserve the -- if it runs over beyond that the closing arguments and deliberation for the next available time and day, th~t seems to be the only remaining alternative. - CHAIRPERSON RAWSON: I think so. MR. HAZZARD: We'll just -- we'll simply try to get it wrapped up on the 12th and 13th. And if we can't, then we'll continue again. Is that what I'm understanding, Madam Chairman? CHAIRPERSON RAWSON: I think that's it. If you'd like -- I know how to reach Mr. Allen -- we could take a five-minute break, and I can call him. I don't know about Mr. Andrews because I know he's not well. MR. KOWALSKI: Madam Chairman, do you -- is the board going to discuss any way of trying to determine whether Mr. Andrews is going to be able to participate to the conclusion of this matter? Obviously that's something that -- that you all would need to decide fairly quickly because we don't want to get any further into the litigation of the matter if it turns out that you cannot proceed with him. That would throw us back into having to make other difficult decisions. CHAIRPERSON RAWSON: I don't know. I know he's not well this morning. _ MR. MANALICH: That seems to be a mean, that would affect all our future he's been here for many other meetings assumed it was a one-day occurrence. CHAIRPERSON RAWSON: He's never well when he's here. He We did. the continuation of the last at that point was I'm not certain in a good spot for the board to sit. However, valid concern. I planning on this. Now, I prior to this. So I just Page 7 October 30, 1996 ~ always tells me he may have to leave. Well, if you want to take a five-minute break, I'll call Mr. Allen and see what his availability is for the 12th and 13th. MR. LAFORET: I second the motion. CHAIRPERSON RAWSON: Okay. We'll stand in recess for five minutes. MR. KOWALSKI: And -- and, Madam Chairman, anyone in the audience or counsel who wants to listen in on that conversation is is going to be able to do that? CHAIRPERSON RAWSON: Well, no. I was going to turn the microphones off. Do you want them to listen? Well, yes, I guess they have to, sunshine law. All right. Then I won't go off the record. MR. KOWALSKI: Whatever you can record, please do, even if you can't record the whole thing. CHAIRPERSON RAWSON: Mr. Therion's office, please. Yes. This is Jean Rawson. I'm looking for Jim Allen. He told me he would be there this morning. Well, if you don't mind, I really do need him to return my call right away. I mean, I won't hold on. Oh, wait. I don't think he can call me here. Why don't I just stay on the phone. My last name is R-a-w-s-o-n, and I'm on -- I'm calling him from the Collier County commission chambers at the Code Enforcement Board, and I need to know his availability for a hearing. I'll hold on. Thank you. There will be a long pause. They've got to try to find him. MS. SULLIVAN: You better tell him he's on the record. CHAIRPERSON RAWSON: ~t's going to take a while. Yes, there is. Let me get the county number for you. What -- what number should I have him call back here? MS. CRUZ: 774-- CHAIRPERSON RAWSON: 774-- MS. CRUZ: -- 8097. CHAIRPERSON RAWSON: -- 8097. And it's -- yes. Jean Rawson, R-a-w-s-o-n. I sure do. Thank you very much. Bye-bye. Mr. Allen's unavailable, but they're trying to locate him, and we've asked him to call back. So if he calls back, I guess I'll get a message. MS. SULLIVAN: I'll go in there and tell them to stand by and you'll call him where he is. MR. LAFORET: What's that number to call here again? CHAIRPERSON RAWSON: I guess we'll go into recess again for five minutes till we see if Mr. Allen can be located. (A short break was held.) CHAIRPERSON RAWSON: Hi, Jim. This is Jean Rawson. How are you? I'm talking to you on the microphone since we don't want to violate the sunshine law. AnQ I just wanted to know if you would be available on Thursday, December the 12th, and Friday, December 13, and that day would only be until noon. Well, the first day probably would be till four o'clock, and the second day would be till noon. Friday, the 13th of December. Wonderful. That -- that's all we needed to know. We'll probably reconvene the original four on that day. Okay. Page 8 October 30, 1996 ~ Thank you. Bye-bye. Mr. Allen advises that he would be available on those two days. MR. MANALICH: What I was thinking, Madam Chairman, is that we could have on the 12th and 13th all of the evidence. And then if we still need more time, which I think we probably will for the closing arguments and deliberations, if a transcript would be made available between that date and the next date that we can get on the calendar that everybody can make which will probably be from what it looks like early January, everybody have the benefit of the transcript, then we could just hit the final stage on that date in January. CHAIRPERSON RAWSON: Give us something to do over the Christmas holiday. MR. HAZZARD: Madam Chairman, I simply -- I simply want to be clear that I estimate that we can finish by noon on the 13th. But certainly if we're within a witness or so of concluding, we may need another day of hearing time as well. CHAIRPERSON RAWSON: That's fine. MR. MANALICH: Yeah, and we're trying to best estimate also. I mean, we were thinking, you know, minimally a half day. But it's conceivable depending on how much cross-examination there is that we might run beyond a half day too, so we'll have to see. But I think as long as there could be a transcript available we could finish up on regular business days in January. CHAIRPERSON RAWSON: That's fine. Is there are there any other suggestions or anything else before this board today? Then I guess we're gonna continue the case of Lely Barefoot Beach until Thursday, December the 12th at 8:30 and reconvene again on Friday, December the 13th and then reconvene again thereafter as needed. And it will only be the original four. But the next regularly scheduled meeting of the Code Enforcement Board is when? MS. CRUZ: November 25. CHAIRPERSON RAWSON: November 25. So anything else to come before the board? MR. MANALICH: Are we gonna pick a subsequent reserve date at this point? It sounds like we're not gonna finish on the 12th and 13th. CHAIRPERSON RAWSON: Well, the regular scheduled board meeting in January would be the fourth Thursday. MR. MANALICH: Well, I would suggest if -- we'd have a special meeting for this earlier in January to wrap this case up exclusively. MR. HAZZARD: Madam Chairman, I'm just not sure that we're gonna be able to pick the next date at this point. I mean, I assume you would have to call ~r. Allen back. Why don't we simply se~ect that date on the 12th and 13th or more particularly on the 13th as we see where we're -- where we're standing. MR. MANALICH: Whatever. CHAIRPERSON RAWSON: That's fine. I'm sure we can -- MR. MANALICH: I just don't want it to be postponed Page 9 October 30, 1996 ~ indefinitely. I'd like to try to bring it to closure. CHAIRPERSON RAWSON: I'm sure we can find a date in January. I don't have the January trial docket yet, and so, you know, I wouldn't know exactly my availability yet. Anyway, so I suppose we can wait. We can get some dates even later in November, and everybody can start checking their schedules. Well, with that, the next regularly scheduled meeting of the entire board will be November the 25th, and this case will then be continued until Thursday, December the 12th. We stand in recess. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 9:30 a.m. CODE ENFORCEMENT BOARD !lJ~ ~,--/ M. RAWS<?N, CHAIRPERSON TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING BY: Shelly Semmler Page 10