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CEB Minutes 12/12/1996 1996 Code Enforcement Board December 12, 1996 December 12, 1996 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD . Naples, Florida, December 12, 1996 LET IT BE REMEMBERED that the Collier County Code Enforcement Board met on this date at 8:36 a.m. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRPERSON: M. Jean Rawson Charles Andrews Louis Laforet ALSO PRESENT: Frank Kowalski, Attorney to the CEB William Hazzard, Esquire Ramiro Manalich, Chief Assistant County Attorney Shirley Jean McEachern, Assistant County Attorney Page 1 11-26-19962:d9PM FROM 6d3 83d5 P.l CODE ENFORCEMENT BOARD OF COLLIER COUNTY. FLORIDA A~EHJ2A Date: December 12, 1996 at 6:30 o'clock A.M. Location: Collier County Government Center, Admn. Bldg, 3rd Floor NOTE: ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. NEITHER COLLIER COUNTY NOR THE CODE ENFORCEMENT BOARD SHALL BE RESPONSIBLE FOR PROVIDING THIS RECORD. 1. ROLL CALL APPROVAL OF AGENDA APPROVAL OF MINUTES ~ . 2. 3. - ectober 30, 1996 4. PUBLIC HEARINGS N/A 5. NEW BUSINESS N/A 6 . OLD BUS INESS Bee vs. LELY BAREFOOT BEACH PROPERTY OWNERS ASSOC., INC., A FLA. CORP.AND LELY BAREFOOT BEACH MASTER ASSOC., INC. A FLA. CORP. CEB NO. 96-012 7 . REPORTS N/A 8 ~ NEXT MERTING DATE December 13,1996 ~ . ADJOURN December 12, 1996 CHAIRPERSON RAWSON: Let's go on the record. We don't have a quorum; so I -- my attorney tells me I can't even convene the meeting. But, obviously, this is the Code Enforcement Board of Collier County, Florida, and set to be heard today is the continuation of a public hearing, the Board of County Commissioners versus Lely Barefoot Beach Property Owners Association, Inc., and Lely Barefoot Beach Master Association, Inc. Mr. Allen, who is the missing board member today, is in the Bahamas. I have a telephone number for him. We can call him, and he will participate by telephone if the parties agree. He will be catching a plane at one o'clock today; so this meeting this morning would have to convene -- if you allowed him to participate by telephone -- by noon. He will be here tomorrow. So what is the pleasure of the respective counsel? And, you know, before you tell me, why don't you identify yourself for the record. MR. HAZZARD: Madam Chairman, I'm Bill Hazzard on behalf of the respondents, the Lely Barefoot Beach Property Owner's Association, Inc., and the Lely Barefoot Beach Master Association, Inc.; and our position would be that -- that this case involves documents that need to be reviewed. Counsel from both sides have prepared exhibits that accompany witness testimony that -- that needs to be seen as the witness is testifying, and our position would be that we would prefer to have Mr. Allen present. Let's reconvene tomorrow morning and -- and move things along. MS. McEACHERN: For the record I am Shirley Jean McEachern, assistant county attorney; and with me is Ramiro Manalich, chief assistant county attorney, here on behalf of the petitioner, Collier County. I think this time we do agree with Mr. Hazzard that there are many pieces of evidence that need to be viewed that have already been entered and some will be referred to again, and there will be more to be entered. And we -- we just have to have everyone here and present. One thing I would like to advise you all is quite recently the Code Enforcement Ordinance was amended, not only to -- as you probably read in the paper -- to create an additional board to help us with our backlog, but it also provided for a holdover term. So in the event that we have a case that is ongoing and we are faced with the expiration of some of those boards members' terms, that those board members may hold over for the special purpose of continuing with that case to its final conclusion. So we -- we do have that option, and it's our position that that applies to this board. CHAIRPERSON RAWSON: Well, correct me if I'm wrong, it was my understanding that both of these days were going to be somewhat shortened anyway and that the two attorneys told me last time we weren't going to finish in these two days, and we were going to be back here in January to finish the case anyway. And I did read in the paper about the holdover term, and as my term expires on February 14th. I'm sure that that applies to me, and that's fine. I'll sit on this case the rest of my life. It's not a problem. MR. MANALICH: Madam Chairman, for the record, Ramiro Page 2 December 12, 1996 Manalich, chief assistant county attorney. I guess my initial reaction -- I'm in somewhat of a state of disbelief at this situation, but nonetheless, I don't see any other option but to have the member present given the nature of the case. And I think the fact that __ all the members need to see the witnesses firsthand and the exhibits. I'm concerned because both sides -- I can't speak for Mr. Hazzard, but I can for our side -- have witnesses that -- some are local and some may -- are not. However, I don't see any other options other than to resume tomorrow. CHAIRPERSON RAWSON: Mr. Allen called me late yesterday, and he's literally stuck there until one o'clock today, but he did offer to be on the telephone. MR. ANDREWS: Mr. Chairman, while we got these two attorneys -- two attorneys up there, if they're the ones to ask, how -- how much bigger deal would this be to start over from scratch, and then -- and then all -- all the members would be eligible. We wouldn't have this problem. How -- how big a deal would -- would that be? It makes more sense, because this -- this is silly running back and forth like a streetcar. MS. McEACHERN: We agree it is very, very frustrating and disheartening. I -- there are -- if we were to start over fresh, I -- I am not sure that the county would be able to call the witnesses who were -- testified before, if they would be available to start tomorrow. And we are also new counsel in this case, and we have not had an opportunity to even meet with those witnesses. So-- MR. MANALICH: I think they were -- if I'm correct, though, it is Mr. Ewing (pnonetic) and Mr. McDaniel (phonetic), who are county employees, and we would do every -- --MR. ANDREWS: That was last week. They're probably gone now. MR. MANALICH: So, I mean, those would be the only difficulties. I mean, we could make every attempt to get a hold of them today if you wanted to proceed that way. Just a question for the chair -- MR. ANDREWS: Well, did you understand what I said? MR. MANALICH: Start over? Well, I think that -- MR. ANDREWS: I mean -- have -- have -- start from scratch, and the whole -- and the whole board will be here, and then we won't have this problem. MR. MANALICH: Right. I mean, I don't think that the county is particularly adverse to that with the caveat Miss McEachern mentioned that the only consideration would be could we get back those two witnesses. MS. McEACHERN: And I -- and I think that one thing --. because if we -- if we were to do that tomorrow, we only have half a day or something; so we're still faced with the same problem we're -- we've been dealing with before. We'd also have to get all the board members here, and we would still be trying to piecemeal. And I think if we were going to start over, we would need at least two to three days set aside where everybody's very committed to clean their calendars off and be here and start over. Page 3 December 12, 1996 MR. MANALICH: I think you'd also have to listen to opposing counsel. MR. ANDREWS: Yeah. I want to hear -- I want to hear from Bill. MR. HAZZARD: Mr. Andrews, I appreciate your frustration and -- and share it; and in addition, you know, you referenced the __ the time. This procedure being drawn out is extremely costly to my clients in terms of the -- the preparation that goes on to come to one of these events and then to not have it go forward. However, I believe it would be highly prejudicial to my clients to start over because the county has already had a preview of my questions to the county's witnesses, and the county will have, then, an opportunity to counsel those witnesses on how to answer those questions, which the witnesses, in my view, frankly, didn't do a very good job of answering the first go-round. I believe it would be extremely prejudicial to my client to have three members who didn't see the first go-round sit and see the -- the second go-round after there's been a dress rehearsal, in effect. MR. ANDREWS: That -- that's fair enough. I -- I just wanted to see what your opinion was, and hope -- hopefully, it would could have been affirmative, but -- but we'll grind away. CHAIRPERSON RAWSON: Mr. Laforet has a question. MR. LAFORET: I have a question. From what I have heard so far, what I have read so far, I have two things on my mind; and one thing is -- I'm not going to give any explanations. I would make one recommendation that the guardhouse gate be removed in its entirety and the median in which it's on be made into a left-turn lane into the development. My second recommendation, follow-up recommendation, is that-the county would pay for the erection of a new guard gate on the -- on the defendant's property to be approximating the value of the guard gate torn down. Now, I'm not going to give any explanation for these two proposals, but it does appear to me that that would be an equitable resolution. MR. MANALICH: Madam Chairman, first, in response to Mr. Hazzard, I think the county would dispute that there would be prejudice to his client insofar as really what was revealed during the first part of this hearing was the county's case, not his. At most, all that was revealed is his cross-examination. We would have had redirect here anyway; so we think that prejudice is minimal. I think, secondly, the -- the question we have -- I'm not clear still as to why we find ourselves in this predicament. I understand from what you said earlier that apparently Mr. Allen was saying that he had been -- a previous appointment in the Bahamas and was simply unable to make connections to return. Am I understanding correctly? CHAIRPERSON RAWSON: Well, I think it's his work that prevented him from coming back last night, and he called me, and he's not going to be on the plane until one o'clock today. But he did offer to spend the morning on the telephone in order to keep this matter moving, and he will be here in the morning at 8:30. MR. ANDREWS: That -- that's a ridiculous and expensive Page 4 December 12, 1996 telephone -- we -- we pulled that one before, and -- and it doesn't work. CHAIRPERSON RAWSON: Well, I'm -- it's not something I'm going to do if the two attorneys are opposing it. So, I mean, I -- I'm just offering that Mr. Allen has offered to do that. MR. HAZZARD: Shall we -- MR. LAFORET: The only objection I see is that the two parties are not even confident they can close this case in two days of hearings, and you have to leave at noontime tomorrow. And it seems what we've done is reduce the case to one 8-hour period. Now, to resolve that, I would suggest that you start your case at one o'clock when Mr. Allen gets here, and we stay here until it's solved. CHAIRPERSON RAWSON: He's not going to be here at one o'clock. MR. HAZZARD: Mr. Laforet, I'm completely willing to do that. My -- my clients will start anytime you want to start today, and my calendar is devoted to this case. MR. LAFORET: You realize we get overtime for that? MR. HAZZARD: Absolutely. My calendar is devoted to this case until conclusion. I'll stay until one in the morning. However long you want to do it, I'm here to do it. MR. MANALICH: Obviously, our client, the board, wants this matter to move forward very -- CHAIRPERSON RAWSON: Believe me, I want it to move forward. MR. MANALICH: And, you know, I join Mr. Hazzard in saying that we will do whatever we can do as far as whatever time is necessary to be here, whether it's not regular hours or regular hours, asrorig as we can get this room and the court reporter and all the necessary arrangements. CHAIRPERSON RAWSON: Well, one thing we can do today is -- because it's clear that if we meet in the morning at 8:30 and we have a shortened day -- even if we were here all day, it's not going to finish. So what -- one thing we can do today is try and look at the January calendar and go ahead and get us a couple more days. But if it's your pleasure not to do it today, we -- we won't start it today. Mr. Allen will be here in the morning. We'll start at 8:30 in the morning. We'll get as much done of it as we can tomorrow, knowing it won't be a full day, then let's find us a couple of days in January so that we know we can finish this up. MR. KOWALSKI: Madam Chairman, if -- if I'm not too much out of order -- CHAIRPERSON RAWSON: Not at all. MR. KOWALSKI: -- could I follow up on Mr. Andrew's suggestion -- CHAIRPERSON RAWSON: Yes, please. MR. KOWALSKI: Thank you. -- and ask Bill Hazzard a couple of questions? CHAIRPERSON RAWSON: Certainly. MR. KOWALSKI: First of all, Mr. Hazzard, you're familiar with the practice of trial lawyers taking depositions in Page 5 December 12, 1996 advance of trial. I know that you've done that many times MR. HAZZARD: Right. MR. KOWALSKI: -- to -- to discover what the opposing witnesses might say. MR. HAZZARD: And, unfortunately, we don't have that luxury in this -- in this setting. MR. KOWALSKI: Right. But having gone through the direct and cross-examination of a couple of the county witnesses, isn't that similar or analogous to having taken a deposition, and that if -- if the witnesses were somehow coached to give different answers to your cross-examination questions, couldn't your objections be -- to the procedure or to your perceived prejudice be met by your opportunity to impeach the witnesses? Because, as you know, we do have a written transcript. MR. HAZZARD: Hopefully, I would do that skillfully. MR. KOWALSKI: Well, do you feel that -- Mr. Hazzard, that that would -- that would go a long way to solving your concern about possible prejudice by reopening the case from scratch? MR. HAZZARD: No, I don't. MR. KOWALSKI: Why -- why is that? MR. HAZZARD: Because I -- I believe that this -- that this board, in seeing the witnesses as they -- as they testified initially, took certain impressions that would not be available to the -- to the three new members who would be seated. MR. KOWALSKI: Lastly, there had also been some suggestions that the members who were not present for the first day's hearing might be allowed to participate by reading the transcript of the first day's hearing, and if -- if Y9ur concern is that you don't want to reopen the hearing from scratch because there could be some differences in testimony, would -- would those problems be solved by reference to the transcript? MR. HAZZARD: Certainly not for the reasons we've discussed, and I believe that counsel for the county has agreed as well in our -- in our discussions about this issue that -- you know, that the very reason why an appellate court does not make factual determinations that the trial court made, is because there's nothing quite like seeing the testimony live and weighing the credibility of -- of witnesses, which you can't do from a -- a cold, written record. MR. KOWALSKI: Madam Chairman, I -- I apologize for the interruption. CHAIRPERSON RAWSON: Oh, no apology necessary. I appreciate your trying to assi~t in getting this matter heard one way or the other. MR. HAZZARD: I -- I do need to address Mr. Laforet's suggestions. CHAIRPERSON RAWSON: Certainly. MR. HAZZARD: And, sir, I believe we'll -- we'll make this crystal clear as the case goes on, but the guardhouse is currently located on my clients' property. Your suggestion was to move it from where it is and put it on my clients' property; it's on my clients' property. And that will become clear as the case Page 6 December 12, 1996 progresses. MR. LAFORET: I appreciate your position, but I'm not entirely convinced of that at the moment, and I based my comment solely on up to date, what I've read and heard. I come to these two suggestions without giving reasons. MR. HAZZARD: I understand. CHAIRPERSON RAWSON: Well, what is the -- at this point, not the pleasure of the board, because we don't have enough members here to have a quorum to make any decisions. What is the pleasure of the attorneys, that we meet tomorrow morning at 8:30? MR. HAZZARD: Madam Chairman, I have to tell you, frankly, that I've been roundly criticized by the county commission for directing or allegedly directing this board's agenda and directing the schedule that this board has made of this case. I strongly object to that criticism. I do not direct this board's agenda, and I sit here at your pleasure, and I'll be here when you'd like me to be. CHAIRPERSON RAWSON: Thank you. Well, we are scheduled to be here at 8:30 in the morning. MR. ANDREWS: Mr. Chairman. Miss -- Miss Chairman, you're idea -- I just -- if we even tried to have one, something could -- something could happen to somebody, someplace, and tomorrow's tomorrow. CHAIRPERSON RAWSON: I hope not. MR. ANDREWS: Your -- your idea of January, set it up far enough ahead so we can -- so we can really plan on it and hold -- and hold it down. I mean, these three days like tomorrow -- today and tomorrow is, you know -- a.lot of us our active. We still have things to do, and I think that -- - P.- CHAIRPERSON RAWSON: And some of us work. MR. ANDREWS: -- if we plan this thing -- well, you're going to -- they changed the rules; so you're going to be on the thing anyway. So -- so you're going to -- you're going to handle it, but let's -- let's plan ahead on the thing, and then hopefully -- you know, nature has to take its course, but -- MR. MANALICH: Madam Chairman, on behalf of the county, our paramount concern at this point is to wrap this case up. This has been pending just way too long. Frankly, we're in a state of disbelief that we're in this situation today. Nonetheless, you know, what we want to do is we want to bring this thing to closure, and we most strongly urge at this point in time that -- first of all, we have no opposition to starting over with the entire board. We don't -- we disagree with Mr. Hazzard. We don't think that they'll be prejudiced. We think, if anything, we were more prejudiced, because we revealed our case to our witnesses. He just merely did cross-examination. Whatever it takes, whether it's a full board or whether it's the four members, we think this should continue tomorrow; and, frankly, we think it should continue to its conclusion, ~hether that includes this weekend, whatever it takes to bring this matter -- and I think it's going to benefit the board and the parties to bring it to conclusion, you know, with whatever it takes to do that. I think -- Page 7 December 12, 1996 MR. LAFORET: That accommodates the two attorneys very well. What about the volunteers? This is Christmastime. We've got other things to do besides sitting here. Now, we devote a lot of extra time sitting here and doing nothing. MR. ANDREWS: Yeah. And driving back and forth. MS. McEACHERN: Could we just break for maybe three minutes so I can talk to Mr. Manalich in private out in the hall? CHAIRPERSON RAWSON: Certainly. Let's have a five-minute break. We'll re -- reconvene, although, we{re not really officially convened. We'll resume our discussion at nine o'clock. (A short break was held.) MR. MANALICH: Madam Chairman, please excuse the delay. CHAIRPERSON RAWSON: That's all right. We'll go back on the record. Go ahead. MR. MANALICH: Yeah. I apologize for the delay but, frankly, this is a very difficult position for us, on behalf of the county, to be in. It is my client's most emphatic desire to wrap this case up as quickly as possible. It's been pending far too long, and I know I don't have to lecture the board on that. I'm just trying to explain to you what I'm dealing with. On the other hand, right now we're at a loss. We don't know if this contingent of four is going to be available again or not. I mean, we thought it was going to be, but it appears to be problematic. I think -- we have in front of us the calendar, and I think our position is at this point -- I'd like to hear from Mr. Hazzard, but our position is that if we can take this group of four and conclude this matter prior to January 1st, then I think that would be our first request. - .- CHAIRPERSON RAWSON: Unless -- unless you want to follow me when I leave for Christmas Tuesday, I don't think so. MR. ANDREWS: That's ridiculous. MR. MANALICH: All right. Well, then if that cannot be done, then I think we have to look very seriously at whether we can convene the full board, start anew, and begin in January, and bring that on a group of what I estimate would be two to four days to conclusion. CHAIRPERSON RAWSON: Well, while you were out of the room, Mr. Manalich, we've been looking at our respective calendars; and we found some dates the week of the 20th and the 27th of January that we're willing to discuss. And it would be my desire that we get as much done as we can starting at 8:30 in the morning too. I mean, I hate to piecemeal it, but if it's going to take that long, we need to do that. We need to just grind away at it until we get it all heard. - MR. ANDREWS: Did you mention the 27th? CHAIRPERSON RAWSON: Yes. The dates that we were looking at were the 22nd, the 23rd until 3:30, the 27th, the 28th, the 29th, the 30th until 3:30. That's when I'm available, and I undeTstand that my attorney and Mr. Hazzard could be available on those days as well. MR. HAZZARD: What was the second set of days? The 28th through what?e Page 8 December 12, 1996 CHAIRPERSON RAWSON: Well, actually the 28th it won't be good, because this is the county commission's day; so we can't probably do it on the 28th. MR. HAZZARD: Oh, I suspect they'd give it up for this. CHAIRPERSON RAWSON: I don't think so. MR. ANDREWS: I wish they had joined us. CHAIRPERSON RAWSON: I think any day but Tuesday. MR. HAZZARD: Got it. The 29th through the 31st. CHAIRPERSON RAWSON: So the 27th, the 29th, the 30th until 3:30, and I apologize. I'm the one that has to leave at 3:30 because I teach a class in Fort Myers. MR. MANALICH: I think, you know, we're open to that. We're extremely disappointed, as is everyone else, that it can't be done this month; but we understand. However, I'd like to hear from Mr. Hazzard at this point with regard to -- if we're going to do this in January on those days, his position with regard to starting over with the full board, and then this -- these problems certainly will not occur again. MR. ANDREWS: He told us he didn't want to do it. MR. HAZZARD: I think I've already stated my position with regard to starting over with the full board. I am not about to dictate to this board what the board should do. My position is that -- that we believe you should not start over with the full board. If this board decides to do that, my clients will deal with it appropriately. MR. ANDREWS: Mr. Chairman, the -- well, there's not a quorum here either, but -- -but for -- for a start, the 27th and the 30th of January, I -- I'm free; so -- ---CHAIRPERSON RAWSON: Thank you. Let me ask our attorney a question. Mr. Kowalski and I have been reading some case law and trying to ascertain whether or not, first of all, if I have the right to make that decision about whether we start anew the new board. And do you have an opinion for the board as to whether or not I have the right to make that decision and whether or not it would be proper to do so? MR. KOWALSKI: Well, that -- that actually invokes -- that invokes two issues. One is, who has the authority to make the decision, and the other would be the -- the merits of the decision. I -- I am reluctant to conclude that the chairperson alone can make that decision, and remember we don't have a quorum here today. CHAIRPERSON RAWSON: Correct. I -- I don't want to make it alone, and I don't have enough to vote on that decision. MR. KOWALSKI: I don't know if you want to proceed along these lines, but I -- I do believe that it would not be unlawful to convene the meeting if -- if you piped Mr. Allen in by telephone to establish the quorum. I don't know if that would help you or solve your problem, but I think that the board would be authorized to make t~at decision rather than the chairperson. We haven't addressed the merits of that decision. CHAIRPERSON RAWSON: Well, obviously, I'm going to be very cognizant of not making a mistake in law that would be appealable Page 9 December 12, 1996 on the wrong issue. MS. McEACHERN: Madam Chairman, I'd like to add something here. Although Mr. Hazzard has said that it is his client who will be prejudiced by starting over, we also would be prejudiced by that, because he has had the benefit of listening to three of our witnesses. Most of our evidence is out, and we know nothing about his case. So these delays -- our position is -- have continually benefited him and have continually damaged the county's case severely I'm speaking, Mr. Hazzard. MR. HAZZARD: I'm just waiting. MS. McEACHERN: The concern is if we start again tomorrow, we begin to piecemeal this tomorrow, again, that -- and we only have a half a day, there -- with the four, there is no guarantee that when we come back in January with just four that we will have four; and -- and it is -- and, again, the county would be prejudiced, because we would be piecemealing it here and there, and -- CHAIRPERSON RAWSON: So what are you suggesting? MS. McEACHERN: Well, I'm trying to put our concerns on the record. I think that the county -- although I think that we would be prejudiced by starting over with a full board -- and there are days in January, and there's a week in February. I don't think we want to go that long, but we could start over with a full board, and I just you know, ultimately, I think the call is Mr. Kowalski's call, what we do. But there's no guarantee if we go tomorrow with just four that then the next day that we schedule that we're going to have four again. CHAIRPERSON RAWSON: So are you saying that you don't want to go tomorrow for half a day? _. -- MR. MANALICH: What I had said earlier was that if we could bring the matter to conclusion before the first of the year with the four, then we were in favor of that. But from what I'm hearing, it doesn't appear that that will occur. Given those changed circumstances we now have, the incessant problems of convening these four for a quorum, we think the better course is, beginning in January, to start over with the full board and pick the days in January with the full board to bring it to conclusion. CHAIRPERSON RAWSON: Well, that's two issues; so let's discuss each of them separately. Let's talk about whether or not it's the pleasure of the two attorneys to go forward tomorrow with the four board members that we have, and then continue it to January; or would it be better to continue it to January, and then have some continuity in the testimony? Mr. Hazzard, let's just talk about that one before we talk about whether it's the four of us or the full board. MR. LAFORET: If I could throw in two cents' worth. You better add two days to the hearing. If you agreed to pass transcripts and the two -- and two of the other members are included in the full board, you're going to add two days to the hearing. Go ahead and laugh_ You know exactly what I'm talking about. CHAIRPERSON RAWSON: Mr. Hazzard, what would be your pleasure about whether or not to go tomorrow and continue to January, or would you rather just -- let's start again in January when we can Page 10 December 12, 1996 have some continuity? MR. HAZZARD: I'm concerned about the continuity problem; however, we're ready to go today and tomorrow. We can go forward at any time. CHAIRPERSON RAWSON: Since I don't have a quorum and we can't make that decision, I'm going to ask you guys to tell me what you want to do. I'll be here at 8:30 in the morning if you want me here. MR. HAZZARD: Again, I -- I am hesitant to be accused of directing this board's agenda. If the county attorneys say that they want to be here tomorrow at 8:30, I'll be here tomorrow at 8:30, because it's on my calendar already. I don't have a better thing in this world to do. If the county attorneys say no for tomorrow, I'll sleep in. MR. MANALICH: I'll try to respond as clearly as I can for everyone's benefit. Our great preference would be to be here tomorrow at 8:30 and get on with this case. However, what we're concerned about is that we only have -- and this is my understanding -- strictly a half day, and what can be accomplished in that is very minimal. We have said previously that ---and we understand everybody is impacted by this, but we would be willing to be here on weekends, nights, any day of the week, whatever it would take to bring this matter to conclusion with the four members. However,' from the previous discussion, it appears very problematic, and it's very understandable. These are the holidays. There's no doubt about that. It appears very problematic that this group of four can bring this case to conclusion before the first of the year. ~n light of that and in light of these unexpected cIrcumstances that we continually encounter, we think that if this case cannot be brought to conclusion before January 1 with the four . members, then we think that the better course for everyone is to begin anew in January with the full board and pick the days in January that will bring it to conclusion within January. Now, in saying that, obviously a concern arises to me, which is that the county had previously agreed with Mr. Hazzard that we would proceed with four members, but the reason I say that is because these are very unexpected, changed circumstances. I mean, this thing has been frustrated (sic) since the summer until now. And after what has happened these last two times, we think these are changed circumstances. We don't have confidence that this group of four is going to be able to bring this to conclusion in light of what's happened. And because of that, I am comfortable in telling Mr. Hazzard that I prefer to -- if this group of four cannot resolve - it within December, to then bring the full board in, start anew,' and resolve it with dates picked, sufficient in number, for everybody's time in January. MR. HAZZARD: Madam Chairman, it's very easy for the county to say let's conclude this all before December 31st throughout the holidays and such because the county's witnesses are all county employees, and if they tell them, you know, be here on Christmas Eve and come testify for this board, if that's the board's desire, those Page 11 December 12, 1996 witnesses are going to be here on Christmas Eve and testify. From my clients' perspective, our witnesses are not our employees, and we've got people's -- you know, approaching the holiday season I think it's, frankly, just ludicrous to suggest that we're going to conclude this prior to the end of the year. Christmas is two weeks from yesterday. I know this board has plans but, frankly, I can't guarantee you that -- that my witnesses won't tell me to, you know, jump in a lake if I say next weekend you got to please come and -- and be in front of the Code Enforcement Board. So given that it's not going to conclude prior to December, my position remains the same. I'll be here tomorrow morning at 8:30 if that's what the board wants. I'll -- if the county attorney's office doesn't want that, fine. You know, we can reconvene on the dates that we decide in January. The issue of whether this board reconvenes as seven and we start over or not is something that I would look to this board to decide. My position is, I'm opposed. I thought that the county's position was that it was opposed from our conversations that we've had with Mr. Kowalski previously. If the county is changing its mind on that and this board orders the do-over process with a seven-member board, then my clients will take whatever appropriate response we determine after that order is issued. CHAIRPERSON RAWSON: Well, I -- I think that what I'm hearing is that you don't object if Mr. Manalich's preference is that we find two days in January. So hearing that and -- and not assessing either of you in trying to direct the agenda of this board but only trying to accommodate everybody, then we'll pick some dates in January certain. And whether we have the four -- and we can't make that d~9~sion because I don't have a quorum -- or whether we have the seven, given the nature of this case, I think Mr. Laforet is probably right. We better find three days. I'm looking at the 22nd, 23rd until 3:30, 27, 29, 30 to 3:30. Yes.' MS. McEACHERN: It looks like even in January, the week of the 27th, I'm sure that there is something in here at one. It's a tax deed sale, and the utility authority meets in here at two, but I bet that we can get them moved out and start on Monday. And then Tuesday's the Board of County Commissioners, so they would have this room and then the 29th and the 30th and the 31st. So it would be Monday -- CHAIRPERSON RAWSON: The 31st is not okay on my calendar. MS. McEACHERN: Oh, okay. And then there is a week in February. It would be -- CHAIRPERSON RAWSON: I didn't go that far. I'd have to call my office. I was hoping to get this thing concluded in January. MS. McEACHERN: Me too. MR. HAZZARD: Madam Chairman, you're available -- what was your availability? The 22nd through the 24th? CHAIRPERSON RAWSON: The 22nd all day, 23rd until 3:30. MS. McEACHERN: Oh, okay. We could start, like, there and there {indicating), and then have that following week if we needed. We could probably even schedule four days. Page 12 December 12, 1996 MR. HAZZARD: Well, why don't we schedule the 22nd and 23rd until your stop time, resume on the 27th -- CHAIRPERSON RAWSON: Hopefully, we'll finish on the 27th. MR. HAZZARD: And then -- but we have the 29th, 30th, and 31st open still, and perhaps we could book the room and CHAIRPERSON RAWSON: Well, we have the 29th and the 30th until 3:30. The 31st is not okay. MR. HAZZARD: Okay. Right. MR. LAFORET: Could we treat this as an expedited case? And by that I mean, if we find witnesses that are repeating the testimony of previous witnesses, at least in arbitration, we have the right to stop them. If we find cross-examinations are fishing expeditions, we reserve the right to stop that. If you two would agree -- I don't know, but I think it might help expedite something. You're at a disadvantage, I recognize, because he's already presented all of his, but I'm thinking of expediting and getting it done. MR. HAZZARD: Mr. Laforet, any -- anything that the board wants to do to move the case along is fine with me. believe that a witness is being repetitive and has -- has, said all you need to hear, you know, I invite you to voice concern to the chair and -- and get a ruling at the time. don't have a problem with it. CHAIRPERSON RAWSON: Well, you know, I -- I want to give everybody their right to say whatever they want to say. Obviously, the Rules of Evidence don't apply. But I would have a -- a great comfort level if the two attorneys, being the skilled litigators that they are -- the three attorneys, would object if their testimony gets repet{tive. Otherwise, you know, I can exercise my authority as the chair, and -- and I really don't want to do that. I don't want anybody to think that I'm shutting them up, but I invite the attorneys to listen carefully and skillfully us~ your objection powers when the evidence gets repetitive. MR. ANDREWS: We're making a full meeting out -- out of this thing. Let's make up our mind what we're going to do, and do it. I mean, this -- you know, this is ridiculous. You're not going to make everybody happy no matter how you work it. You never -- you never do. CHAIRPERSON RAWSON: Well, Mr. Allen (sic), that's probably the best suggestion we've had today. Let's -- I'm sorry. Mr. Andrews. Let's agree, then, to meet on the 22nd, the 23rd until 3:30, the 27th, and hopefully we'll reach a conclusion on the 27th. If you want to entertain the idea or the suggestion again at 8:30 on - the 22nd that you have more than the four of us here -- you know, I guess we can't do it until then, because I don't have a quorum to make that decision today. If the four us are here, my suggestion would be that you utilize the fact that we're here, and you go on with your case. MR.. MANALICH: today the issue of requesting at this If you you know, that I certainly Well, can't we, in some manner, resolve the full board, yes or no? I mean, we're point the full board. . Page 13 December 12, 1996 CHAIRPERSON RAWSON: Well, if you two can agree, we can. We can't vote. MR. ANDREWS: We can't vote. MR. MANALICH: Well, Mr. Kowalski I thought had said that we could link telephonically -- CHAIRPERSON RAWSON: Apparently, we can't do that unless we call him on a pay phone I am told. MR. ANDREWS: Well, we're playing games here. Come on. MR. MANALICH: Would this be something that we should discuss at any special meeting prior to the hearing date? CHAIRPERSON RAWSON: Well, I don't have any problem with that, and I'm happy to call Mr. Allen from'my telephone in my office later. MR. MANALICH: I believe Mr. Hazzard's position is that he's opposed to the full board and starting over. MR. HAZZARD: At the risk of being repetitive, yes, that's my position. MR. ANDREWS: I got you. I understand that. CHAIRPERSON RAWSON: The only way I think we can do that, honestly, is to convene -~ and what we could do is we could do this at 8:30 in the morning, because I know Mr. Allen will be here. And then at that time I would ask our attorney to give us advice in terms of the legalities involved in our making that kind of call. We -- I know Mr. Allen will be here. He assured me he would be here at 8:30 in the morning. My other two board members who are sitting here now have it on their calendar. It's on my calendar. So we could make that decision in the morning as to whether or not on January 22nd at 8:30 you will have the four of us or we will have the seven back. Now; we'll probably have a problem with all those calendars that we'll have to resolve too. MR. MANALICH: Well, we'd prefer to bring that to a conclusion tomorrow so that we have a definite plan for the conclusion of this case, then, including who's going to participate. CHAIRPERSON RAWSON: Well, that's fine. Why don't we have the four of us convene in the morning at 8:30 for the sole purpose of making a decision as to whether or not the four of us continue since we've heard part of this case already, or whether the full board reconvene and this case either starts over -- that's one alternative -- or the other three read the transcript. You know, we'll entertain all those arguments in -- in the morning at -- at 8:30. MS. McEACHERN: Madam Chairman, if I could make another suggestion. In the event we did start over with the full boar~, we would need more than just the two and a half days we just reserved, and as a -- just an abundance of caution I would suggest that we go ahead, for today at least, and agree on maybe reserving more days in that last week of January. CHAIRPERSON RAWSON: Well, why don' t we do that. Why don't -- everybody just mark your calendar, and let's alert the county commissioners' office that we're also looking at the 29th and the 30th until 3:30. Page 14 December 12, 1996 MS. McEACHERN: Okay. Okay. CHAIRPERSON RAWSON: Well, is there anything else anybody wants to discuss? MR. ANDREWS: Why don' t -- why don' t they have the county rent us a room here so we -- since we're going to be here a whole week? CHAIRPERSON RAWSON: Well, I guess I didn't officially call this meeting to order since I don't have a -- a quorum, so I can't officially end it. But if we don't have anything else for the record, I'll see everybody back here in the morning at 8:30 for the sole purpose of ascertaining whether or not the four of us will continue to hear this case or whether we will have the full board contingency. MR. MANALICH: But in any event, we're planning to convene, whatever the decision tomorrow is -- with whatever that decision is, we are planning to convene on the 22nd? CHAIRPERSON RAWSON: The 22nd at 8:30, the 23rd, 27, 29, and 30th. MR. KOWALSKI: And as everyone knows, we haven't had an opportunity to coordinate those dates with Mr. Allen, and that can be done tomorrow, I assume. CHAIRPERSON RAWSON: He'll be here at 8:30. MR. KOWALSKI: So I would think that -- that if you -- if the decision is to go ahead without the other three members, obviously those dates would have to be agreeable to Mr. Allen or you can't proceed naturally. MR. ANDREWS: Supposing that -- supposing that he can't get out for some -- one reason or another, then -- then what do we d07'-Just come down here for another trip? CHAIRPERSON' RAWSON: Well, I would hope that he would be as courteous as to call me since he -- and I think he will. He has the last couple of times. I think I would know that, and I would alert everybody immediately so that you wouldn't have, to come down here for nothing. MR. ANDREWS: Okay. But he -- in other words, you know, flying -- flying and that -- that island country down there, a lot -- a lot of things can happen; so you're -- you're depending an awful lot on a -- for a lot of people, and -- you know, this is -- this is -- it just seems to go on and on. I don't understand. It took us five years to play around with this damn thing, and then all of sudden it's the most important thing that ever happened. CHAIRPERSON RAWSON: I'll see everybody at 8:30 in the morning. Page 15 December 12, 1996 <, ) ***** (proceedings concluded at 9:41 a.m.) COLLIER COUNTY CODE ENFORCEMENT BOARD j?;~~ M. J Rawso, Chairperson TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING BY: Barbara Drescher Page 16