Loading...
CEB Minutes 12/13/1996 1996 Code Enforcement Board December 13, 1996 December 13, 1996 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD Naples, Florida, December 13, 1996 LET IT BE REMEMBERED, that the Collier County Code Enforcement Board met on this date at 8:35 a.m. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRPERSON: M. Jean Rawson Jim Allen Mireya Louviere Celia Deifik Louis Laforet Richard McCormick ABSENT: Charles Andrews ALSO PRESENT: Ramiro Manalich, Chief Asst. County Attorney Shirley Jean McEachern, Asst. County Attorney Maria E. Cruz, Code Enforcement Specialist Vince Cautero, Community Development and Enviromental Services Administrator Linda Sullivan, Code Enforcement Director Frank X. Kowalski, Esq., Attorney for the CEB William Hazzard, Esq., Attorney for LBBPOA Page 1 December 13, 1996 CHAIRPERSON RAWSON: We'll go on the record now. The Collier County Code Enforcement Board will come to order. Let's have the roll call starting with 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. CHAIRPERSON RAWSON: For the record, Charlie Andrews, our other board member, called me this morning at 7:30, and he is ill and cannot be here today. Fortunately, we have the rest of the board here today; so we can at least have a quorum. I realize, of course, that he's one of the four that was hearing the case of Board of County Commissioners versus Lely Barefoot Beach Property Owners' Association, but he is unable to be here today, which sort of points out our continuing frustrations with having a four-person board hearing something. He apologizes, and I believe he's really ill. So the purpose of the meeting today, as announced yesterday, is to ascertain several issues. And you attorneys can correct me if I'm wrong, but I think the issues are: number one, whether the seven-person board will hear this case or whether you want to go back and have the same four-person board -- that's been a problem getting all four of us together -- continue to hear the rest of this case. And assuming we get past that first issue, the second issue would be whether the board that hears it is going to start over, if it was the seven-person.board, or read the transcripts from the first day's testimony and that I'm sure we'll have legal opinions from each-side on both of those issues, and the board's attorney will advise us as well. So the county, I guess, we'll start with you, your position on those issues. MR. MANALICH: Good morning, Madam Chairman, members of the board, opposing counsel. For the record, Ramiro Manalich, chief assistant county attorney, along with Shirley Jean McEachern, assistant county attorney. I had been requested by Miss Sullivan that either Mr. Cautero, the development services director, or herself could make a brief comment prior to my beginning, if that's okay with the board and opposing counsel. MR. HAZZARD: I object. I have absolutely no idea what the -- the purpose of this would be. If it's related to this case, then I would suggest that we get on with the matter that's before the board on this case today in the method that we anticipated doing it yesterday. If it's unrelated to this case -- and certainly the board - needs to hear from these folks in relate -- in relation to some housekeeping matter -- then certainly the board should hear it. MR. MANALICH: I think it's in relation to the scheduling of this matter; is that correct, Mr. Cautero? MR. CAUTERO: That's correct, Madam Chairman. CHAIRPERSON RAWSON: It's not -- in regard to the scheduling of this matter and those board members who were not here yesterday, be advised that we've found about five days in January to Page 2 December 13, 1996 hear this case which we'll discuss later, especially if you're going to hear this case. But at any rate, Mr. Hazzard, apparently it has to do with the scheduling of this particular case. In view of that, do you still have an objection to his making a comment? MR. HAZZARD: Why don't we do it at the appropriate time after the -- the attorneys have done what it is that you've asked us to come here to do today. CHAIRPERSON RAWSON: Any response? MR. MANALICH: I think that's at your discretion, Madam Chairman, as you know, the limited nature of the request that Mr. Cautero has made. CHAIRPERSON RAWSON: Well, I -- MR. MANALICH: Because I would just mention one other thing, which is under the ordinance, 92-80, the code enforcement official, which he is the ultimate person in that regard as Miss Sullivan's supervisor, does have the ability to request of the chairman and the board matters of scheduling hearings. So I would cite that as my authority for him to begin this morning on that limited scope. CHAIRPERSON RAWSON: Well, in terms of scheduling this matter, you know, I'm -- I'm happy to hear what he -- he has to say; so why don't you go ahead. MR. CAUTERO: Thank you, ma'am. Vince Cautero for the record, community development and environmental services administrator. One of the issues that I talked with Mr. Manalich about and my code enforcement staff was to attempt to resolve the matter as quick as possible, and I know that the board wants to do that as well. My recommendation to you would be to vote in the affi~ative to allow the entire board to be eligible to be able to hear this matter. MR. HAZZARD: Madam Chairman, this is entirely out of line. This is not about scheduling. This is an opinion of what the board should do, and this is an attempt to influence the board through some sort of testimony by a county official. I would strenuously object and renew my objection to this line of commentary. CHAIRPERSON RAWSON: Well, in terms of your presentation of your argument to Mr. Manalich for or against the issue, whether or not the full board or the four-person board, you certainly have the right to call him as a witness. Why don't we do it that way. MR. MANALICH: Mr. Cautero, do you want to proceed in that manner, or do you want me to simply address the board on the limited issues first and then return to you? MR. CAUTERO: Well, I just want to make a statement. My - recollection from reading the ordinance is that this is not a court of law. This is a board under the direction of the Board of County Commissioners. And my frustration is becoming increasingly apparent, and I would just like to make a statement to this board and make a request. And if I can't do that in a very professional manner, then what is my role here? That's all I'll attempt to do; so I'd like to proceed. MR. MANALICH: Why don't we swear him in then as a Page 3 December 13, 1996 witness. MR. CAUTERO: MR. MANALICH: Pardon me? I think the chairman has mentioned that CHAIRPERSON RAWSON: It's a good idea. MR. MANALICH: -- to have you sworn in. CHAIRPERSON RAWSON: To have you sworn in and identify yourself by name and position, and then say what you want to say. THEREUPON, VINCENT CAUTERO, a witness, having been first duly sworn, upon his oath, testified as follows: DIRECT EXAMINATION BY MR. MANALICH: Q. Good morning. Please state your name for the record. A. Vincent Cautero. Q. Mr. Cautero, how are you employed? A. I'm employed by Collier County government as their community development and environmental services administrator. Q. In that capacity do you exercise supervisory function over Ms. Sullivan as code enforcement director? A. I do. Q. Are you aware that under Ordinance 92-80 the code enforcement official, whom you supervise, has the ability to address the board and/or the chairman with regard to scheduling of code enforcement matters? A. I am. Q. And is -- are you here in that capacity today? A~-.' Yes, sir. Q. Okay. Do you have a brief statement that you'd like to make regarding the scheduling of this matter? A. Yes, I would. I had a discussion with -- several discussions with my superior, Mr. Neil Dorrill, who has requested that I request of this board that the case be heard as soon as possible and brought to closure. And my request of you is to attempt to schedule this meeting either next -- this hearing next week or the first week in January and attempt to bring it to closure. Staff will -- will be available for all these hearings; I will see to that. And we will attempt to find a meeting room if this room is not available. The Board of County Commissioners has requested of me as well that the -- the hearing be brought -- be brought to closure, and I'm sure that you're aware of that, too, from your discussions with staff as well as perhaps what you read in the media. So I -- I would- just urge you to try to bring this this case to closure as soon as possible, and that's the nature of my request, and thank you for hearing me. CHAIRPERSON RAWSON: Thank you. Q. Do you have anything else to add, or is that all? A. That's all. MR. MANALICH: Okay. Madam Chairman, I don't know if Mr. Hazzard has any cross-examination. Page 4 December 13, 1996 MR. HAZZARD: I have just a few questions. CROSS-EXAMINATION BY MR. HAZZARD: Q. Mr. Cautero, you mentioned that the Board of County Commissioners has requested you to make this statement here this morning? A. No, sir. Q. Okay. What exactly was it the Board of County Commissioners had requested you to -- MR. MANALICH: Objection, Your Honor. That's mischaracterizing the testimony. I believe he mentioned the county manager. MR. HAZZARD: I distinctly heard you mention the Board of County Commissioners, did you not? A. Yes, I said the Board of County Commissioners. Q. And my question is, what is it that the Board of County Commissioners has requested you to do? A. The Board of County Commissioners wishes for the docket for the Code Enforcement Board to be cleared as soon as possible. Q. Okay. You also mentioned discussions that staff has had with members of this board, and what discussions were you referring to about that? MR. MANALICH: Objection. I don't recall that testimony either. Q. Do you recall mentioning discussions just a few moments ago that staff has had with members of this board? A. Yes. Q. And would you please tell me what discussions you're referring to that ~he code enforcement staff has had with members of this board? A. A conversation I had with Miss Rawson. Q. Is it your understanding that members of the Code Enforcement Board staff are allowed to communicate with members of this board about the subject matter of this case outside of the public forum? A. I was referring to my conversation with Miss Rawson. MR. HAZZARD: I have nothing further. Thank you. MR. MANALICH: Madam Chairman, redirect. REDIRECT EXAMINATION BY MR. MANALICH: Q. Mr. Cautero, your contact with Miss Rawson was in regards to scheduling; is that not correct? A. That's correct. Q. It was no.t about the substance of this case? A. No, sir. MR. MANALICH: Thank you. CHAIRPERSON RAWSON: Well, I have one further question, and that conversation that we had was five minutes ago in the hall walking into this room; is that correct? MR. CAUTERO: Yes, ma'am. CHAIRPERSON RAWSON: Thank you. Page 5 December 13, 1996 MR. MANALICH: Madam Chairman, if I could then at this point just address the three issues you had mentioned allowing for Mr. Hazzard to respond after that. Obviously you've heard from the code enforcement official supervisor regarding the need and the frustration -- regarding need for closure in this case, and obviously you're well aware of that. This matter has been pending since July of this year and for various reasons has still dragged on to this point. Mr. Andrews' illness today and the absence yesterday illustrates what we think amounts to impossibility of having this hearing with the four members. At this point we believe the proper course and what we would recommend to this board is to reinstitute the seven-member board for this case. That will assure that we can achieve a quorum. In addition, we believe that the case should be commenced over again with presentation of witnesses from the beginning. However, anticipating objection from opposing counsel, what we would suggest to be maximum in fairness here would be that we allow, if that is opposing counsel's request, for the transcript of the one-day hearing that was held in July to be admitted into evidence in this case even though we're going to start over, and that . transcript could be used by either side for impeachment or for substantive evidence, whatever is preferred. We would also echo Mr. Cautero's comments with regard to proceedings on this quickly, and we would suggest that next week, which is the week prior to the Christmas holiday week, would be the most appropriate and that we would suggest that would be the date. We believe, anticipating objection that was mentioned yesterday, that any prejudice here really washes out because, if anything, we believe the county was more prejudiced by this sequence of events than the responaent. It is the county that is seeking enforcement. The respondent, I think, is quite happy with the status quo. The county has waited patiently. In addition, in -- in an evidentiary regard, the county has, I think, been, if anything, more prejudiced because we are the ones that our case in chief was revealed. The only thing that I think opposing counsel has lost is possibly some cross-examination, and we're even willing to allow that to come in as it originally occurred through the transcript. So we believe -- and Mr. Kowalski and Mr. Hazzard will have to respond on the case law, but we would cite two cases that have been shared among all of the counsel here this morning, and that is Veasey versus Board of Public Instruction of Palm Beach County found at 247 So. 2d, 80; and Sheffey versus Futch found at 250 So. 2d, 907, for the point that these cases hold that even when board members are absent .for a case, they could even review a transcript and based on that transcript reach a decision. Here obviously we're not even going that far. We're saying let's just start anew and have all the board members listen to this. Thank you. MR. LAFORET: Counsel-- MR. MANALICH: Oh, one other comment. MR~ LAFORET: May I ask Mr. Cautero a question? I realize that -- may I ask him a question? MR. MANALICH: Let me just -- yes. That will be up to Page 6 December 13, 1996 the chairman, Mr. Laforet. MR. LAFORET: Mrs. Chairman. MR. MANALICH: If I can just make one other point and then get out of the way -- CHAIRPERSON RAWSON: Go ahead. MR. MANALICH: which is I want to emphasis, because these cases do address -- at least the Veasey case does address moving forward on transcripts or otherwise when there's a case impossibility, and we believe impossibility has been met here because we have had now the passage of six months of time. We've had two attempts at a quorum with four members, and additionally today we have another illness. So we think that the impossibility has been shown. Thank you. CHAIRPERSON RAWSON: Thank you. Mr. Laforet, why don't you go ahead and ask the question of Mr. Cautero. MR. LAFORET: Mr. Cautero, if I understand you correctly, you're suggesting, proposing, that we have seven members on the board to avoid any problems in the hearings. We had seven members on the board, and the reason we're having problems in hearing is three of them didn't show up -- MR. CAUTERO: I realize that. MR. LAFORET: -- which only left us four. MR. CAUTERO: I understand. And I've been told by the attorneys that -- MR. LAFORET: So-- MR. CAUTERO: I'm sorry, s~r. MR. LAFORET: All right. Now, that being the case, I hope you're not criticizing the efforts of the remaining four of us to expedite this case and do it as expeditiously as we could. We did the very- best we could, for your information. MR. CAUTERO: I'm criticizing no one. All I'm saying is that the attorneys have advised me that up until today the discussions were centered around the original four members who were here for the original Lely case. MR. LAFORET: Now, do we have -- MR. CAUTERO: And what I was attempting to do was support Mr. Manalich's recommendation that the entire board be eligible to hear it, and that's -- that's all I'm saying, because four members only heard it in July, and'due to some -- due to legal concerns that I've been told, those four people were only eligible to only hear it yesterday and the month or two prior, and at those two meetings a quorum was unable to be reached. Seven -- if the entire board is eligible to hear it, which is my hope that you'll do, then you won't have a quorum problem. But I'm criticizing no one. I will - tell you that the Board of County Commissioners is criticizing me, though. MR. LAFORET: But then do we have any assurances that the thing won't reoccur with the same three members that created the situation in the first place? MR. CAUTERO: No. You don't, but if you have seven eligible. you can get four. MR. LAFORET: Thank you. Page 7 December 13, 1996 MS. LOUVIERE: I am totally confused because a while back this issue was discussed by this board, and this board voted that all members should be allowed to vote on this matter, that we would review the transcript. and we would all have a voice on it. There was concerns from this board, specifically me, as far as getting four people together. We all want to resolve this. And I'm with you; the whole board needs to hear this. CHAIRPERSON RAWSON: Well, let's hear from Mr. Hazzard. MR. McCORMICK: Let me ask a question before Mr. Hazzard not to cut him off, but can somebody -- maybe I'll ask our chair first or our counsel. Tell me where we are with this case. CHAIRPERSON RAWSON: We've only heard one day -- MR. McCORMICK: You only had one hearing, and that was in July? CHAIRPERSON RAWSON: Correct. We've had one day of testimony, and that's it. We've been unable to meet the quorum of the four of us on every subsequent occasion. MR. McCORMICK: Which means we had opening statements and a couple witnesses? CHAIRPERSON RAWSON: Correct. And we have a transcript, typed transcript, of that. MR. McCORMICK: Okay. MR. HAZZARD: Madam Chairman, I'd like to begin by calling Miss Sullivan as a witness. Would you swear the witness, please. rHEREUPON, LINDA SULLIVAN, a witness, having been first duly sworn, upon her oath, testified as fo-llows: MR. MANALICH: Madam Chairman, before opposing counsel begins, I would take the position that I have no objection to Miss Sullivan being called for a witness provided that it is for the limited scope of the matter of scheduling, just as Mr. Cautero was called with that limitation. And I'd'ask opposing counsel if he could make a brief offer of proof as to what it is that he's seeking from this witness. MR. HAZZARD: It -- it certainly relates to the issues that are at hand before the board this morning. CHAIRPERSON RAWSON: Well, I think Mr. Manalich referred to scheduling issues. I guess the only issue, really, before us right now is whether the four or the seven MR. HAZZARD: Well, Mr. Cautero has suggested that the board start over with seven members, and I'd like to explore that with- . Miss Sullivan. MR. MANALICH: No objection to those areas of inquiry. CHAIRPERSON RAWSON: Fine. MR. MANALICH: Thank you. DIRECT EXAMINATION BY MR. HAZZARD: Q. Miss Sullivan, could you state your position with 20llier County, please. Page 8 December 13, 1996 A. I'm the Collier County code enforcement director. Q. Miss Sullivan, in that capacity are you familiar with the codes of Collier County that govern these proceedings? A. Yes, sir. Q. And is it your office that has issued the notice of violation that's at question in these proceedings? A. Yes, sir. Q. Is there anything, to your knowledge, within the codes that govern these proceedings that calls for a start-over process? A. No, sir. there isn't, but I don't think there's anything that prohibits it either. Q. Is there anything within your knowledge of the codes of -- of Collier County that govern this proceeding that allows your office to withdraw the notice of violation that has been filed in this case, refile it, and bring it in front of a seven-member Code Enforcement Board anew? A. Again, I don't know whether -- I don't think it's prohibited. I think it's -- it's a -- probably a -- a matter of law, which I don't think anybody's been able to resolve this -- this issue of the seven- or four-member board. Do you have any -- Q. Well, I'll ask the questions while you're under examination, if you don't mind. But why have you not simply -- if -- if it's Collier County's desire to proceed in this case anew with a seven-member board, why have you not withdrawn the pending notice of violation and simply issued a new one and save us all this problem? A. I don't see how that would solve the problem legally, Mr. Hazzard. I don't think it's necessary. ~.-., Wouldn't withdrawing the current notice of violation and issuing a new one bring this matter in front of this board, all seven members, anew, fresh from the start? A. I don't have an answer to that. I'd have to consult our attorney on that. MR. HAZZARD: I have no further questions for Miss Sullivan. Madam Chairman CHAIRPERSON RAWSON: Based on those questions, I should probably, before you give your statement, ask Mr. Manalich if you have any cross-examination of Miss Sullivan. MR. MANALICH: No, thank you. CHAIRPERSON RAWSON: Okay. Mr. Hazzard. MR. HAZZARD: Madam Chairman, I think I'll begin with addressing Ms. -- is it Louviere? Am I pronouncing your name properly MS. LOUVIERE: It's Louviere. MR. HAZZARD: -- Miss Louviere's comment concerning why is it that the board is not simply coming to hear this -- this matter as a matter of course, and that, frankly, is because when we initially heard this case in July when there were only four members present. Counsel for the county at that time, Mr. Bryant; myself; and the members present agreed that we would continue that case with the four members and that the four members would see that case through to Page 9. December 13, 1996 conclusion. And it's simply my position that an agreement is an agreement. It was an agreement among counsel and this board, and we should follow through on it. Now, it's not surprising to me that the county wants to renege on that agreement. You will see as you examine this case that it is full of agreements that the county has reneged on MR. MANALICH: Objection. Objection, Madam Chairman. MR. HAZZARD: -- but I believe -- MR. MANALICH: Objection to reference -- MS. LOUVIERE: Let's just stick to the subject. MR. MANALICH: Madam Chairman, I would object and move to strike the last comment regarding the county's conduct in the case in chief and the substantive matter. I have no problem with opposing counsel referring to matters of the composition of this board, but matters of the substance of the case, I don't think, are appropriate at this time. CHAIRPERSON RAWSON: This is, Mr. Hazzard, opening statement or argument, legal argument, if you will. And I think the board is intelligent enough to be able to focus on the issue, and the issue is only whether a four-person or a seven-person board should hear this case. So if you would confine your remarks just to that issue, please. MR. HAZZARD: Yes, Madam Chairman. So I believe that a four-person board should hear this case, because it was committed among counsel and this board that a four-person board would hear this =ase. We would be done with this issue had -- on July 25th had we said let's come back in August at the regularly scheduled board meeting and see who's here and conduct the hearing, and then let's come-Back at the regularly scheduled board hearing in September if we're not done and conclude there. And if we're not done in September, let's come back at the regularly scheduled board meeting in October. And I find it incredible that this board is being criticized or that Mr. Cautero is being criticized by any member of the county commission, because this board is comprised of volunteers who have committed to be here on a day a month to hear these cases and to think that we need to move everybody's schedule around and try to match seven people's schedules next week, the week before Christmas, not to mention the difficulty that I'm going to have getting my witnesses present. As I mentioned yesterday, the county's witnesses seem to be chiefly county employees. The county attorney call for those witnesses to be present, and they're going to be here. My witnesses are not employed by me, and they're not employed by my clients, and - they come on availability. And I need some notice to those people to let them know, if they can, when to block out their schedules so that they can come and testify in front of this board. Now, in terms of four or seven, my argument is entirely a deal's a deal, and I would expect this board to -- to respect the integrity of that deal. But the case that Mr. Manalich mentioned, Veasey versus the Board of Public Instruction, discusses situations of impossibility and the kinds of impossibility that the -- the case Page 10 December 13, 1996 discusses, what if a board members dies before a final decision is reached, but after six months of testimony? Must the new board start over? This is hardly likely. Well, I would agree, of course not. That would be ridiculous. But we don't have a situation of impossibility here. Each member of this board has the regularly scheduled meetings of this board blocked out on their calendars. And if we schedule this hearing to resume at the regularly scheduled meeting of this board in January, you're going to be here and you're going to hear testimony. If we don't conclude in January, then we come back at the regularly scheduled meeting in February. Now we have tried yesterday to juggle a number of calendars and the room calendar, and we have found some dates in January that are -- that are back to back or pretty close to back to back, and I am willing to go forward with those dates that we discussed yesterday. But I believe that the criticism aimed at this board for being unable to show up under extraordinary circumstances is unfair, and I do not think that we have a situation of impossibility that says we have to scratch everything that's gone on and -- and start over. Now, an additional reason why we don't need to start over. I believe that it is perfectly appropriate if you determine that seven members of the board should continue the case. I believe it's perfectly appropriate for those members of the board who are adding in to read the transcripts, to review the exhibits, and not put my clients through the expense of repreparing for the first day of hearing that we had back on July the 25th. If you do decide to start over, then I would respectfully request that the county pay the costs that my clients have incurred thus far, because it's certainly not my c~ient's fault that we need to start over. We're willing to resume the hearing from where things left off July 25th and count on the members of the board to get up to speed, if you will, by reading the transcript and reviewing the exhibits. We do not think there's any cause at all to move this case next week. And personally I cannot appear the first week of January, because I have a five-day jury trial that starts on January the 7th, and I owe it to the client that I am representing in that case to spend that first week in January preparing. Thank you, Madam Chairman. MS. LOUVIERE: Can I ask a quick question before you leave the podium? MR. HAZZARD: Yes, ma' am. MS. LOUVIERE: What is your ultimate goal in this case? MR. HAZZARD: My ultimate goal is to resolve this case and get it back into the courthouse across the street where it belongs. MS. LOUVIERE: Okay. Resolve this case. MR. HAZZARD: Absolutely. MS. LOUVIERE: So you shouldn't -- even though you haven't got -- you haven't been able to resolve it in the past, you should be totally open to have as many people listening to this case and vote on it and resolve it. MR. HAZZARD: And as I expressed, if it is this board's Page 11 December 13, 1996 pleasure to add additional members, then we would like to do that without bringing the four members that were present in July through a rehash of the first day's testimony. MS. LOUVIERE: I just wanted to hear you say that. MR. ALLEN: Mr. Hazzard, I've got a question, please. MR. HAZZARD: Yes, sir. MR. ALLEN: In the event the board finds that we don't take your side and we -- and we choose the county's side -- MR. HAZZARD: Yes, sir. MR. ALLEN: -- okay, would you appeal this? MR. HAZZARD: Absolutely. MR. ALLEN: So you're wasting our time. MS. LOUVIERE: Yeah. MR. HAZZARD: Let me please address that. I filed a case in the Circuit Court of Collier County in January of 1994 about this subject. Fourteen months later the Collier County Code Enforcement Board filed this notice of violation and brought this procedure to you. It is not my client's desire to be in front of this board. As I said in my opening statement, the only reason we are in front of this board is so that Collier County can gain some sort of advantage or upper hand that they have cooked up in the court case -- MR. MANALICH: Objection-- MR. HAZZARD: -- that is going across the street. MR. MANALICH: -- argumentative. MR. HAZZARD: Well, it was in my opening statement, and you read it there then, and I will count on you to do that. But it is not my client's choice to be in front of this forum. Fourteen months prior to getting in front of this forum, we were in the courthouse in C6Il~er County across the street, and that's where we belong. Am I wasting this board's time? I didn't bring this hearing, sir. Collier County brought this hearing. If the board's time is being wasted, it's being wasted by Collier County. CHAIRPERSON RAWSON: Can you tell us the status of the civil case? MR. HAZZARD: The civil case, the county filed a motion to dismiss. It was denied by the judge in May of 1994. The Collier -- the county responded by filing a -- a second motion to dismiss, and argument on that motion has not been heard. The State of Florida has intervened in the case. It's sued both my clients and -- and Collier County, and it's complained an intervention. It's a pending court case. Depositions are going on. You know, the status is ongoing. CHAIRPERSON RAWSON: Thank you. MS. LOUVIERE: So whether -- whether a four-member board or a seven-member board hears this case, you intend to appeal our decision? MR. HAZZARD: Well, does your statement preassume assume in advance that you're going to find against my clients? MS. LOUVIERE: No, of course not. Why would you assume that? MR. HAZZARD: Because you asked me if I intend to Page 12 December 13, 1996 appeal, and that's something that, frankly, I don't have an ability to decide at this time unless I know the outcome. And, of course, you know, I guess it's a common misconception among folks that you automatically get to appeal things. You have to have some basis for appeal, and if there's a basis for appeal and the decision goes against my clients, then I would certainly avail my clients of all the all the remedies. MS. LOUVIERE: All right. Thank you. I don't have any MR. ALLEN: One more comment, sincerely apologize for yesterday. that -- the only pump truck in the MR. HAZZARD: I understand. MR. ALLEN: Anyway, flying back home last night, I put a pencil to what it's actually going to take to move the guardhouse. MR. HAZZARD: Yes, sir. MR. ALLEN: And the real money to pick the guardhouse up and move it back to where it should be moved is $11,800. MR. HAZZARD: There's a question of where is that place that it should go. MR. ALLEN: I'm just saying this little bit -- amount of money to move that guardhouse where it could be legally positioned, okay, is probably less than the attorney fees. So I mean MS. LOUVIERE: Always. MR. ALLEN: So, I mean, I'm just trying to look at a thing rationally saying if the remedy is cheaper than the fees, why not do the remedy. MR. HAZZARD: Sir, our position is that it is legally p6si~roned where it is today. Do you have a different position? MR. ALLEN: Yes, sir, I do. According to the PUD, it's not where it's supposed to be. . MR. HAZZARD: Well, I'm very concerned to hear that that's your position without my clients even being able to put forward any evidence in this matter. Does anyone else have any questions for me? MS. LOUVIERE: $11,800 to move it -- MR. KOWALSKI: Excuse me, Madam Chairman, I was under the impression that the purpose of the argument here this morning related to whether four or seven members were going to hear this matter. CHAIRPERSON RAWSON: That's correct. And -- and we'll limit our comments to that. Before I ask Mr. Manalich if he has a response in rebuttal, let me say this: I would like to divide these two -- two issues. The first is whether we're going to have the four-person or the seven-person board. Then having that one decided, then we'll talk about and vote on whether or not we're going to start over or whether or not we're going to review the transcripts. I think that's a separate issue. And then just one final comment to Mr. Hazzard. This board doesn't have as much authority as you might think we do, and we Mr. Hazzard. I really I was really stuck in a scenario Bahamas broke down Monday morning. Page 13 December 13, 1996 don't have the authority to order costs. I appreciate your argument, but we don't have that authority. MR. HAZZARD: It's certainly a fairness issue that I'd like this board to keep in mind, the costs associated with starting over, I mean, my client has already spent to come here on day one. Finally, Madam Chairman, I would simply like to point out to the board that no one has given you any legal authority for this starting-over theory. CHAIRPERSON RAWSON: Well, I understand. MR. HAZZARD: No authority as a do-over CHAIRPERSON RAWSON: I understand. I'm going to ask our attorney to help us with that in a moment. MR. HAZZARD: Thank you. CHAIRPERSON RAWSON: But let me ask Mr.. Manalich if he has anything in rebuttal. MR. MANALICH: Indeed, I do, a couple of things. First of all, we have requested the seven-member board because we believe that under the Veasey case and the other case that I cited, we have reached in de facto impossibility here. When you look at the passage of time, the effort~ made, the illnesses, etc., we do think we meet that legal test of impossi.bility. And, again, I would repeat that we don't believe there's really any significant prejudice that doesn't balance out for both sides if we have the seven versus the four. Secondly, I think we can perhaps expedite this. I thought I heard opposing coUnsel say that he was willing to move forward on the transcript with the seven. If that's a stipulation he's willing to enter at t~is time, we're certainly willing to do that. ---MR. HAZZARD: Madam Chairman, my statement, just so we're clear, is that I believe that the agreement was to proceed with four members, and the county should honor that agreement. However, if it's this board's pleasure to proceed with seven members, then we believe that it would be a waste of four board members' time and effort and my client's time and money to do a rehash of day one. We should proceed -- if it's -- if the choice is seven, we should proceed with the additional three people counted on to get up to speed on the case, read the transcript, review the exhibits, etc. CHAIRPERSON RAWSON: I understand your position, Mr. Hazzard. That's why I think we should divide those up, and we're going to vote on them separately. We'll start with whether it's going to be four or seven. I guess the answer, Mr. Manalich, is there's not a stipulation of seven people here. MR. MANALICH: Well, in any event, we're willing to be .as accommodating and flexible as possible. And we are willing to limit the evidence here in terms of the first day of testimony to be had through the transcript. We would pick up the hearing with the redirect of Dennis Mazzone -- CHAIRPERSON RAWSON: Well, let's do this HR~ MANALICH: -- with the seven. CHAIRPERSON RAWSON: Let's vote on the first, and then uaybe you guys can reach a stipulation depending on what the outcome Page 14 December 13, 1996 of the vote is as to the second issue. MR. MANALICH: Okay. I had just one other point that relates to that. Mr. Hazzard mentioned the agreement that was made by Mr. Bryant, our predecessor counsel. And I think at the time that certainly, in order to avoid this type of, you know, discussion, I think given that we had the first day of hearing, it was certainly reasonable at that time to enter into that agreement. However, I would submit that as a matter of contract law, impossibility and changed circumstances have changed the underlying basis for that agreement. You now have a situation here where everybody is being stYmied in this process, both Mr. Hazzard's ability to attain justice, as well as the county's. So we think there are significant impossibility and changed circumstances to warrant that agreement no longer being in effect. I mean, it was held in effect for six months and over three attempts. So our -- I guess you wanted, Madam Chairman, to first address the four- versus seven-member issue. CHAIRPERSON RAWSON: I think so. MR. MANALICH: And as stated, it is our request, and we move to have the seven, and we'll address the issues further aft~r you vote on that. CHAIRPERSON RAWSON: Thank you. MR. LAFORET: Shouldn't you CHAIRPERSON RAWSON: Before we get into a discussion about whether or not we're going to have the four-person board or the seven of us hear, we're not going to determine whether or not we're starting over or whether or not we're going to read the transcripts, only whether or not seven p~rsons has the right to hear a case that's already started and has already had one day of testimony heard among four_ ..But before we have that discussion, I'd like to ask our attorney, Mr. Kowalski, if he could shed any light on this for the members of this board. MR. KOWALSKI: I'll try to do that. As you know, this -- this issue has been lurking for some time now; so we have had the opportunity to -- to research it. I also have -- appreciate the input from both Mr. Hazzard and Mr. Manalich because I've -- I've shared the legal authorities that I've found with them and -- and had discussions with them to help me to form an .opinion to advise you. The authorities that I found were the -- are the ones that were cited by Mr. Manalich in his argument; that's Veasey and Sheffey. Both of those legal authorities address the question of whether a member who was not physically present at a portion of an evidentiary hearing would be entitled to vote on the ultimate issue based upon having read the transcript. That appears to be the second question that you mayor may not get to, depending upon your resolution of the first one. So let me address the first one only tangentially in relation to those authorities, and that is to say that those authorities imply that there would be a more strict standard of review. In other words, there -- it would be -- a court would look more scrutinously at a situation where a board allowed members to -eview a transcript and participate in a vote than the Court would if Page 15 December 13, 1996 the matter were to be recommenced, in my opinion. I think that the recommencement of a hearing is -- is similar to a mistrial 'in the courthouse. I've been in situations where a mistrial has been created by error committed by the trial judge when it has been not invited in any way by counsel. And I would analogize Mr. -- the county's position here as requesting a mistrial based upon the fact that circumstances make it difficult or impossible to proceed with the four members. I'm not sure that the standard of impossibility needs to be met. I think the mere fact that it has -- if the board determines that it has become impractical to proceed with only four members, then I think that -- that you can -- you can either recommence or __ or continue at the point that you left off by reference to the transcript. And we'll discuss that issue if you get to it as the second issue. On the -- on the issue of contract law, whether there was an agreement to proceed with only four members, I think it would be fair to characterize that procedurally as a stipulation between the parties that both would be willing to proceed with four members unlike a contract between two private citizens who have full authority to enter into an agreement that doesn't violate public policy. The parties cannot determine for this forum how many members are going to hear the case. That's the decision that the board had to make in July, and the board made it in part based upon the fact that there was no objection or consent by both of the parties before it, but it's not a matter of contract between them. It's a atter of the decision of the board as to how it wants to proceed. So based on all that, ~t would be my opinion that a seven-member board would be entitled to hear this case in one fashion or an~ther. I think, though, although this goes outside the scope of the legal question I was asked, I think Mr. Laforet put his finger on a potential problem if you decide to utilize seven members. If I am taking his idea correctly, he -- he was suggesting, gee, we've had trouble getting four people here. If we have a seven-member board, are we going -- is it going to be easier to get those four members plus three additional members here for each of the days' hearings? And if we don't, what's going to happen when it comes time for a decision and some of the seven members have not attended all the days' hearings? I don't know whether that is a question or a problem that you all want to consider when you make this decision. MR. McCORMICK: I have a couple of questions for Mr. Kowalski. CHAIRPERSON RAWSON: That was going to be my next comment: Who has a question? Go ahead. MR. LAFORET: Go ahead. Go ahead. MR. McCORMICK: You said that it was the board's decision in July to hear this with four people. To me it seems that we've been here before. In August when the full board was back we discussed this; and I don't recall if we took a vote, but it seemed to me that the entire board was in agreement that it would be impractical to think that four people could carry through and hear a couple more 'ys' testimony and all reach the same conclusion. So the legal Page 16 authority to me at that time -- it was common sense. It wasn't going to work, and we discussed that. And if I recall, you said that you didn't think that was the right course to take and that you were going to talk to the county and you were going to talk to Mr. Hazzard and you were going to advise us again as to whether we should have seven people involved or four people. Could -- what's transpired, and how did that get resolved, and why are we now looking at seven people? MR. KOWALSKI: That's a good question. At __ at the time that -- that I discussed this with both the county and the Lely residents, their counsel both opposed going to a seven-member participation. What has changed since then, well, number __ number one, is that the objection of at least one of those parties has been removed. Number two, continuing efforts to move this case along with only four members have been unsuccessful. In August we're talking about just one month after the hearing had commenced, and now we're five or six months down the road. The third thing that is changed is that at -_ at that time we were looking at picking exclusively the option of __ of resuming where we left off and having the absent members review the transcript. And that was something that both the county and the residents particularly objected to, whether reading a transcript would enable somebody to develop a familiarity with the evidence sufficient to be able to vote. And our concern was -- was with that aspect of the procedure. The option of starting anew, I don't believe, was 1dressed at that time. So those -- those are the __ the changed ~ircumstances which lead me to -- to give you a little different guidance today than what I didn't know. - . MR. McCORMICK: Thanks . That's a good answer . That clears it up. CHAIRPERSON RAWSON: Any other questions for MR. LAFORET: Counselor, are we bound in our board strictly to adhere to legal precedence? MR. KOWALSKI: This board's -- the procedure that the board uses in conducting its hearings are not the same strict procedures that a court uses when it conducts a hearing in the court of law. So strict rules relating to evidence and hearsay and things like that do not apply in this forum in the same way that they do in the courtroom. But -- but on a question of whether you are entitled to recommence a hearing, that -- you need to follow the law as scrupulously as possible, because those -- those involve the constitutional rights of both parties to this action. And if the case law says that the constitution dictates a particular course of action for you and you do not follow that course of action and it is __ it is taken in front of a court to review your action, whatever you have done will be invalidated by the court on constitutional grounds. So the procedures that the boards use -- board uses are not the same as the court procedures, but the -- but the authorities of law regarding your constitutional obligations must be observed. MS. DEIFIK: Are you saying that we have __ December 13, 1996 Page 17 MR. LAFORET: Excuse me. I haven't finished yet. MS. DEIFIK: Sorry. MR. LAFORET: Do I recall correctly that you cited a physical absence as being cause for reconsideration? It occurs I would like your opinion on this. It occurs to me that the only physical absence in all of these things has been one member of the board. The rest have been not physical, but business reasons. So part of the reasons for our delays and -- and continuances have been not physical, but a matter of choice, election, which is not a physical reason. And, secondly, nobody this morning has mentioned the principal reason for the delay in the hearing of this case is the inability to obtain prompt access to a hearing space. Now, that is the principal reason. Four of us or three of us showing up every other time could have finished this case by now had facilities been available for us to meet in. The reason there's been one-month delays, six-weeks delays is because we didn't have anyplace to meet in. So I would appreciate for the record -- just going on the record and thank you for your response. MR. KOWALSKI: I think those are sage comments. The-- the only modification or a comment that I would make about them other than to -- to endorse them, is to note that where only three members arrived, you can't -- you can't convene a session because you don't have a quorum. But I don't think that that invalidates much of what you said, Mr. Laforet. MR. LAFORET: Thank you. CHAIRPERSON RAWSON: Any further questions for our attorney? -.MS.. DEIFIK: I just -- one quick question. If we do decide to have a seven-member board, do we have the power to have everyone start over? I mean, that -- that question Mr. Hazzard raised, and it seems to me a valid question. MS. LOUVIERE: I thought we were going to just discuss first whether or not to go for the seven -- four- to seven-member board to hear this case, and then the second item we were going to discuss was going to be whether or not we could use the transcript or start again. CHAIRPERSON RAWSON: Well -- well, that's true, and that's exactly the way I said we'll vote on it. However, I think Miss Deifik's question probably should be answered, because it might help her in ascertaining how to vote on the first question. If we started over or read the transcript, what does the seven-person board __ assuming that would be this board's pleasure, what do they have the power to do? . MR. KOWALSKI: My -- my opinion on that to you will be that neither side has the right to any particular jUdge, any particUlar forum, any particular members or number of members to decide a matter regardless of how it commenced and that when cirCUlllStances make it impractical to proceed under the original basis. you can, at your oPtion, either recommence from ab initio, from the br-inning, or you can pick up where you left off. And under the case DeCember 13, 1996 Page 18 authorities I have found, the members who were not physically present at the prior hearing participate after having read the transcript. MS. DEIFIK: That -- I think that answers my question. I just have one other question that perhaps you can help us with as We go along. And probably the great God of lawyers will strike me dead as I say this, but it was my understanding __ I think Mr. Cautero's statement was a good one -- that this is not a court of law and that, you know, we're getting too bogged down sometimes in procedural issues. I think we need to give both parties due process, particularly citizens who are, you know, confronted by the might of the county. But I would like to see us take the reigns and move things along more as a board, and that's where I'm looking for some guidance so that we don't drag. Do you understand what I'm saying? Can -- do we have the power to -- to say we're not going to get caught up in the minutia, that you might get caught up in a federal court or circuit court? This is a board; let's move along. MR. KOWALSKI: Well, all I can say is that __ is that when you get down to -- I think the way you move the case along or where that arises would be in terms of the presentation of evidence and the argument of counsel. I think that you're giving __ you are given more leeway as a quasi-judicial board than a trial court would be given in terms of moving -- moving matters along. And I __ as you know as an attorney, Miss Deifik, that moving the arguments of counsel along is -- is -- is a lot easier to do than moving the evidence along. But I would be happy to assist if -- at any point in trying to ve both parties along in terms of the presentation of the case. MR. MANALICH: Madam Chairman, may I address the board. CHAIRPERSON RAWSON: Yes. -MR.. '-MANALICH: Just briefly, to the extent it will assist this discussion and resolution of this matter, the county is Willing to be flexible. We are willing, if you decide to vote for seven members, that -- we do Want that, because we think we've reached the point here where we need to get on with this with a sufficient number of members here voting. But if you agree on the seven, we are willing to go forward on the transcript and not rehash the first day. We are willing to start over, if that's the board's preference. Whatever the board prefers, we will do. We are Willing -~ I believe opposing counsel is concerned about starting over as opposed to picking up the transcriPt. We think the case law and your own attorney advised that seven members could pick up that transcript, and we'd pick up the presentation from where the transcript left off. CHAIRPERSON RAWSON: In view of the fact that Mr. Manalich has made a statement, do you have anything you want to say, Mr. Hazzard? MR. HAZZARD: I think I already stated my position on that iSsue, but I appreciate your offer. Thank you. CHAIRPERSON RAWSON: Any further discussion by this board? MR. LAFORET: Yes. I have one statement to make. I I '-'ink it should be impressed on all this legal talent that we don't DeCember 13, 1996 Page 19 nake binding decisions. We make recommendations to the board, and it's the board of commissioners who make the decisions. So in view of cases already -- civil cases already pending, I have a feeling that whatever we decide, just or unjust, is garbage. In the first place, it can be overridden by the commissioners. In the second place, theY're going to go to civil court anyway. So I can't see the great emphasis on all this legal doctrine. I agree with my compatriot here. Let's do it and get it done. MR. HAZZARD: Madam Chairman, I -_ I respect Mr. Laforet's pOSition on that. However, I would urge this board to take seriously the charge that you have in reviewing this case, to carefully review the transcript, if that's what happens, to carefully review the exhibits, the testimony of witnesses, because what you do does matter, because it relates to standards of review that will be applied should this case be appealed by either side. However, I do believe that it's at this board's pleasure to hear cases. And if you Want to throw this one out and send us to the courthouse, we'd be glad to have you do that. MR. MANALICH: Madam Chairman, I Won't argue my cause. I'll just refer to what was brought up, and that is __ Mr. Laforet, my understanding of law on this is that your decision here as a quaSi-judicial body is quite important in the sense that the Board of County Commissioners will not be reviewing this case. This case will go to circuit COurt if any side chooses to appeal. So obviously your decision is very important. The second thing in relation to that, I just want to L_~ng up something that occurred earlier, which is, I know Mr. Hazzard had expressed a concern regarding comments that Mr. Allen had made earlie~. -. And I just wanted to reemphasize with all of the board members, both on our behalf, and I think I speak also for Mr. Hazzard on this, which is I think we both would encourage you to keep an open mind about this matter. Wait to hear all the evidence from both sides. Do not in any way predispose or prejUdge this. Agree with us both to hear this matter to its conclusion, and then at that point when you're properly in deliberation, then form your conclusions. CHAIRPERSON RAWSON: Thank you, Mr. Manalich. I appreciate those comments. I was going to make the same to the board. And I do consider that this board's decision is very important, and I know that -- and I urge board members, whether it's four or seven, to take this very seriously, to listen to the evidence carefully, and to render a fair decision. And I'll probably say that again in the course of this hearing. Any further discussion on whether we have four or seven members? MR. MCCORMICK: I would just comment that __ almost reiterating what our attorney said and -- and also what I believe we talked about in August, that we don't choose what cases come before us, but once they are here, it is within OUr arena and within OUr ability to hear them as -- as We see and to try and bring them to resolution as we see fit. And I I think that it's perfectly within our -- our judgment to -- to add on the other members of the board and go ';.th seven. It's-- December 13, 1996 Page 20 MS. DEIFIK: Is that a motion? MR. MCCORMICK: It's not -- when I wake up in the morning and think of my things to do, this isn't USually on the list. But I'll make a motion that we have seven members of the board hear this case. MS. LOUVIERE: I second it. MR. HAzZARD: Madam Chainnan, can I just for a point of clarification -- I'm sUre you don't intend to lead Us into a bind that if seven people are not here we can't go forward. CHAIRPERSON RAWSON: No, Mr. Hazzard. MR. HAZZARD: A full board and whoever is here at that time, is that more the gist of it? CHAIRPERSON RAWSON: I apologize to the court reporter because I know I spoke at the same time that you Were speaking. I think that the essence of the motion -- and I'll ask Mr. MCCormick to be SUre that I'm correct -- is that a seven-member board is eligible to hear the case rather than only the four who heard the first day of testimony. Obviously we go back to the rules and look and see if We have a quorum present and so forth. But we're only talking about eligibility here; is that correct, Mr. McCormick? MR. MCCORMICK: Yes, I'll amend the motion. CHAIRPERSON RAWSON: It's been moved and seconded that the full board be eligible to hear the case of Board of County Commissioners versus Lely Barefoot Beach Property OWners' Association, Inc., and Lely Barefoot Beach Masters' Association, Inc. Is there any f -ther discussion on this motion? MS. DEIFIK: I'd like to second the amendment to the motion. CHAIRPERSON RAWSON: MS. DEIFIK: That's CHAIRPERSON RAWSON: that motion? If not, then I'll call for the vote. All in favor of the motion, signify by saYing aye. CHAIRPERSON RAWSON: All oPPOsed? MR. LAFORET: No . CHAIRPERSON RAWSON: The motion carries 5 to 1. I have to be careful about my mathematics and counting. The motion carries. The full board will be eligible to hear the case of Board of County Commissioners versus Lely Barefoot Beach. Now, let's get to the next iSsue, which is whether this board starts OVer or whether this board reads the transcript from the first day, being Cognizant of the fact that all of the board members were not present on that first day. And I'll entertain arguments or stipulations or whatever the attorneys wish to tell this board. MR. HAZZARD: I'll rely on my previous statement. I think my Position is clear that take it from transcript. MR. MANALICH: We are willing to go from the transcriPt and proceed from where the transcript left off. CHAIRPERSON RA"'SON: Fine. Then I'll consider that to oe ? stipulation between the parties that the members of this board December 13, 1996 Thank you. for the record. Is there any further discussion on Page 21 dll be provided with, if they have not already been provided with, cranscripts of that first full day of hearing and that they will read that transcript very carefully and that they will be prepared to proceed forward from that day. MS. LOUVIERE, Is it POssible to ask for additional information in order for me to be more educated on this matter? I'd like a copy of the POD. I'd also like a copy of the master plan that currently reflects where the gUardhouse is, and I __ I'm assuming the POD contains a master plan that reflected where it was proposed to be located. CHAIRPERSON RAWSON, Well, let me -- let me just say this, all the evidence that.was introduced on the first day of testimony should be provided to all of the board members, if it hasn't been already. And I think Some of the things that she's requesting is probably already in evidence; is -- is that not correct? MR. HAZZARD, Madam Chainnan, it is. I f YOU'll recall from the first day of hearing, I provided notebooks that contain various exhibits to the -- to the board members who were present, and I have identical notebooks for those two board members here today three board members here today who were not present July 25th. I'll give those to you before we leave so that you can review them. In addition, Madam Chainnan, I -_ I think it's incumbent upon the board members if there is something in the transcript as you read it that's unclear, I don't think that you're in any way prohibited from inquiring about that. And I believe that if the board s i I'd like to hear from -- or if a board member asked to hear from a ~rticular witness who Was heard again, if the rest of the board was inclined to do so, I think that may be proper if there's a question ,that you have that you need to clear up. That's __ that's at least how I read the cases that Mr. Kowalski has provided us with. CHAIRPERSON RAWSON, Well, I don't disagree with yOU, Mr. Hazzard. And all of the exhibits that were already introduced into evidence, including the packet from the county that Was in OUr book, should be provided to be read along with the transcript of the first day'S proceeding so that everybody is up to speed and ready for the second day of testimony. MR. MANALICH: Madam Chairman __ CHAIRPERSON RAWSON: Yes. MR. MANALICH, -- if I'm correct, and I believe what the members will have accessibility to are being provided, is the transcript and the exhibits that were introduced. I don't believe there would be anything beyond that. CHAIRPERSON RAWSON: That's correct. MR. MANALICH, Now, with regard to that body of material, I would suggest the documentary portion of those exhibits, which are the majority of them, I believe, can certainly be reproduced by whoever for you to have to review and read. . Now, there are some graphics that were prepared that obviouSly I don't think can be ceproduced, and I'm open to any suggestions as to how you Want to landle that. They are available in the clerk's office. Mr. Hazzard, 10 Y . have any Objection to any of them individually gOing down to DeCember 13, 1996 Page 22 :eview those -- those materials? MR. HAZZARD: Frankly -- no objection __ I think it would be inCumbent upon each of you to go and review the materials so that you can have a thorough understanding of what transpired on day one. MR. MANALICH: I would submit, though, that would have to be done, I believe, individually for the purpose of the Sunshine Law. CHAIRPERSON RAWSON: Certainly. MR. KOWALSKI: May -- may I make a suggestion, Madam Chairman. I would suggest that the party that introduced each exhibit be responsible for providing copies of those exhibits to board members. For the most part, that would be the county, but it may but it may be that the respondent has also introduced an exhibit, as I recall. MR. HAZZARD: I'm prepared to do that now. CHAIRPERSON RAWSON: I think -- I think he gave us a whole book. MS. DEIFIK: Maria, I gave you back my transcript. MS. CRUZ: Sorry. MS. DEIFIK: I gave you back my transcript because I thought I wasn't going to hear it. CHAIRPERSON RAWSON: Well, we'll be SUre that all the board members are prepared and that they have all the exhibits and that they have the -- the right individually to go to the clerk's 'ice and review the graphics. And, you know, again, I'm going to Q~onish all of you about the'Sunshine Law, not to discuss this case. This case is much too important, and my concern has always been that . We don'~"make an error procedurally that if this case goes on appeal, as the attorneys have told us it might, then it goes on the substantive issue, not the procedural issue. So I'll _~ I'll just admonish you all to be very careful not to discuss this case with each other or with anyone else and also to listen carefUlly to all the evidence presented, to do a good job of reviewing the transcript and looking at the evidence presented on the first day, to have an open mind, and to render a fair decision based only on the evidence that's presented before this board. Now let's get into the -- the area of schedUling. And for the record my brief conversation in the hallway with Mr. Caut Mr. Cautero before this meeting Was about scheduling. And he let me know that he was going to go on the record and request that we do this either next week or the first week in January. My response to him was that I appreciated the frustrations, and we all shared in those frustrations, but that the -- those of us that were here yesterday, which did not include Some of the members of the board today __ and so we need to have this discussion -- had already picked some days in January. And we'll have this discussion today, but we've already got some days picked out that looks to me like they might work, that this case can get heard in its entirety, that this case can finally render -- this board can finally render a decision. And for my fellow board mer' 'rs that were not here yesterday, the attorneys and the board DeCember 13, 1996 Page 23 members that were present yesterday, including Mr. Andrews, were looking at the days of January 22nd all day, January 23rd until 3:30; January 27th all day, January 29th all day, January 30th, if needed, until 3:30. I have been assured that this room will be made available. Now, do We need to take a break for the other board members that are present to check their schedules? MS. LOUVIERE: I'm sorry. Could you say the dates just one more time. CHAIRPERSON RAWSON: Yes. January 22nd starting at 8:30 and going until the end of the day __ MS. LOUVIERE: Okay. CHAIRPERSON RAWSON: which is a Thursday __ MS. LOUVIERE: Uh-huh. CHAIRPERSON RAWSON: going until 3: 30. And for the record, I'm the reason it's only going to 3:30. I teach a class in Fort Myers, and I apOlogize, but I. have to leave, and I don't Want to miss any testimony; January 27th starting at 8:30 all day; January 29th starting at 8:30 all day, and if needed, January 30th until 3:30. Certainly with almost five days this board will be able to hear all the evidence and render a fair decision. Now, do you need to take a break to check with your respective offices as to your availability? MS. DEIFIK: I believe that all those days would __ I __ oan make -- make my schedule so that I can be here, but I would like ~~ make a quick phone call just to be sure. MR. MANALICH: Madam Chairman -MS,"DEIFIK: How many days is it going to take to finish this case? MR. MANALICH: Madam Chairman, a I'll answer that with my next point. taking the break. Before we do that, to look at those dates that were just ones that were discussed yesterday. CHAIRPERSON RAWSON: Yes. MR. MANALICH: However, I want to reiterate and emphasize that on the behalf of the county, the county'S position is that it feels an urgency to get on with this case and would like this board to consider next week. CHAIRPERSON RAWSON: I understand. And I'm not unmindful of that, and I'm not unsympathetic to that, but as I said on the record yesterday and I will repeat, you know, that I'm flYing out of Naples, Florida, next Wednesday at 4:20. And so, you know, at least I know that I will be unavailable, and it is __ was my understanding that Mr. Hazzard said he had some problems with some of his witnesses being available for the week before Christmas. And that led us SUbsequently into lOOking at January. MR. MANALICH: Well, before we go on from there, understand YOur comments about next week. That still du' .'9 New Year's. It also leaves then the first few December 13, 1996 in this room; January 23rd, couple of things The first one is because you're I think you're taking the break mentioned, and those were the I leaves the week weeks of Page 24 December 13, 1996 January. Now, I understand Mr. Hazzard has a five-day jury trial. I believe it's starting the 7th of January. And that I understand, and we don't quarrel with that at all. And that he would maybe need preparation before that, we don't quarrel with that. But that still leaves the week of the 16th, I believe it is, Monday -- CHAIRPERSON RAWSON: It's the week of the 13th and MR. MANALICH: Thirteenth? CHAIRPERSON RAWSON: -- as I recall our discussion yesterday, Mr. Hazzard has a jury trial five days starting January 7th. I know that this affects me, and it probably affects Ms. Deifik. Judge Hayes' trial docket is the two weeks of January 7th and January 13th, and I know I personally have three trials on that docket. So -- and I know that one of them is not going to settle, and I do not want to have to call this board at the last minute and say, oh, guess what? I'm in Judge Hayes' trial today, and I can"t come. I do not want this case to be delayed, and I want to be here to hear every word everybody has to say. So I think that's why we then ended up with the week of the 20th and the 27th, and we all cleared our calendars. So I'm not unmindful of the county's concerns. And-- and we're going to do our best to get this done, but we don't want to be in a position that we've been in the last subsequent hearings when we don't have a quorum and -- and you guys come and you're ready to go and you-all have your exhibits here and I walk in and I have to say somebody's not here and we don't have a quorum. I don't want that to nappen again. I want to move this case along. So we're trying to find days that we're reasonably sure that we'll have a quorum here. Yes. -. .- MR. ALLEN: I have a question. I apologize again for not being here yesterday. Is there a specific reason that -- that this thing is going to stretch out for five more days? Why can't it be condensed into a day? MS. LOUVIERE: And that's -- that's a good point. And I find that these case -- these cases that are presented to us are very, very long. And I've noticed and I have asked before; the Board of County Commissioners limits the time that witnesses can -- can be heard and limits the questioning time. And I am -- I am going to ask that can we look at this, please. Why can't we have a timer and limit the presentation by the -- by the attorneys and limit the question-and-answer periods? I mean, some of these things, I have listened, sat on these boards for four and five hours and listened to what opaque is and have not been able to stop this person from wasting some of my precious lifetime. I mean, I'm sorry. That's how I feel - about this. MR. HAZZARD: Madam Chairman, it would be my view -- of course, I don't know what the county's case is to be presented. And I share your frustration, and I will let -- I just as a matter of of courtesy tell you that I've written to a county commissioner and proposed some suggestions to govern this process and expedite it because, frankly, there are some things that could be done. Now, I don't think we want to impose things mid-case. However, given that Page 25 December 13, 1996 we're not starting over, I personally don't envision us needing all five days. It's -- it's my view that when the county is done with its case -- and I don't know how many more witnesses the county has, because I'm not privy to that information. I don't know obviously who those witnesses are; so I can't begin to estimate how long it will take to examine or cross-examine. But I believe when the county is done with its case, I have, I.think, six witnesses to put on. Two I expect to be fairly short, and four I would expect to try to hold my presentation short, but I cannot speak for how long the county's cross-examination will run. CHAIRPERSON RAWSON: How long -- MR. HAZZARD: That's the best estimate -- MS. LOUVIERE: Can you tell us how long each -- each witness is going to be up there? MS. DEIFIK: How many days are we going to be here? MR. HAZZARD: I -- I can't estimate that for you, because I don't -- MS. DEIFIK: Just for your case. MR. HAZZARD: My case I would expect I would need two days just guessing at what I think would take cross-examination. MS. DEIFIK: Mr. Manalich, how many days or how many fractions of a day do you need to finish your case? MR. MANALICH: We have at this point three witnesses in addition to Mr. Mazzone who will be on redirect when we resume. We would estimate, dependency -- the great unknown for us is his cross-examination. I think we don't -- we don't know on those witnesses how long he will.take but -- MS. DEIFIK: You're taking a half to a full day? - ...- MR. MANALICH: I would say we're looking for us between a day and two days, probably most likely a day to a day and a half. MS. DEIFIK: Okay. Can I just make a statement: not to beat a dead horse. And, Madam Chairman, you can hit me if you want. One of the things that I've observed in the past -- and this must be a frustration that judges experience, is -- please, gentlemen and ladies, remember that we all are intelligent people, and we do understand what you say to us. I have noticed in the past that many. of you feel the need, either in your argument or with your witnesses, to revisit a point again and again and again. We heard it. We know it. We understand it. We do have a grade-school education. Thank you. MS. LOUVIERE: And -- and I know in this case -~ and you have changed a lot along the lines in this case; so we cannot limit -- it would be not fair to go ahead and start setting time limits at thi~ time to your witness and to your statements, but I would like this board to start looking at limiting the time that people can get up there and the time that -- that we can ask questions. The Board of County Commissioners does it. Why can't we? We have -- commissioners are very upset that this board has a six-month backlog. We are taking way too long. They have made another code board. There's no reason why these cases have to drag on the time that they do. It -- it is -- it's ridiculous. Page 26 December 13, 1996 MR. HAZZARD: Madam Chairman, if I -- just in response, I -- I share your concern. And, Miss Deifik, you understand the court system and the differences between the court system and here. But one major problem that I see in this board, frankly, is not knowing who the witnesses are going to be, not exchanging information. This is a hide-the-ball proceeding as opposed to a court case which is a no-balIs-hidden proceeding. Whoever sits down at that witness stand when Mr. Manalich begins to question them will be a surprise to me. I don't know who they are. I don't know anything about them, and I will be thinking on my feet to ask them questions. You will have to forgive me if I stray, because I don't know what they're going to say. I haven't had the opportunity to depose them like I do in a court case. I don't come in knowing the subject of their testimony, knowing the depth of their knowledge about it. And the county attorneys, of course, have that same problem when I present my witnesses. These are the kinds of reforms that I think, personally, should be considered by this board. There should be some stipulations in advance of the hearing. The attorneys should be able to sit down and say, here are the witnesses I'm going to present, and here's what they're going to talk about, both sides exchange that information. We could very easily adopt for this board a program similar to what you do in court where you submit a pretrial statement. Here are the facts that we agree on, and you don't need to hear testimony about those facts because everybody agrees. There are a number of things that can ~e done. I would urge you to look at those. I would urge you to urge county commissioners to look at those, including people that are supposed to do that. That could really expedite matters in front of tnis-board. Thank you. MS. McEACHERN: Madam Chairman, I'm Shirley Jean McEachern, assistant county attorney. On behalf of the county, we reiterate our offer that we made, that Mr. Manalich and I made when we took over this case, that we're more than happy to disclose our witnesses to Mr. Hazzard. That offer was made to him before, and it was rejected, and we make it here again today. MR. HAZZARD: Naturally the offer comes too late, and what you need to know is that I requested that information prior to the start of the hearing and was denied. The position that I'm in now is, okay, Hazzard, you already know who half our witnesses are by virtue of they've already given testimony. Now we want to know all your witnesses. You referenced let's not change the process in the middle. This is the process we're stuck with. This is the process that I've been dealt, and we'll go forward and -- MS. DEIFIK: No. You referenced let's not change the process and then -- how can it -- MS. LOUVIERE: No, sir -- MS. DEIFIK: Yeah. How can it possibly hurt you now to know who their witnesses are going to be in January and you disclose your wibnesses as to who you're going to put on in January, and everybody will be up to speed by the time we come here in January, and lue process will be met? Page 27 December 13, 1996 MR. HAZZARD: If -- if it's the board's inclination that we do that and you direct us to do that, obviously that's what we'll do. MS. DEIFIK: I do. MS. LOUVIERE: I so second. MR. HAZZARD: But the issue, the fairness issue, is that I did not know in advance of the first day of hearing who the county witnesses were going to be. I did not know all of the county witnesses, and the county will now know who all my witnesses are when I didn't have that same information available at the outset, and that's my only point. CHAIRPERSON RAWSON: Well, let's -- let's do this, a couple things. We're going to put on the agenda for the board's knowledge for January the Code Enforcement Board rules and regulations; they've really never been passed. We've been following some that we've used that probably need some edification, and so I appreciate your comments, Mr. Hazzard, and your jsuggestions. I think that they are well-made, and I agree with you. There is a process that ought to be implemented and ought to be right in our rules and regulations. And so we're going to have that discussion at our regularly scheduled board meeting in January, and we're hopefully going to get some rules and regulations that we've approved, and then we'll get the county commissioners hopefully to approve. , Now, in terms of whether or not we have to have an exchange of witnesses at this point in the proceedings, before we have ~ discussion further now that I've heard a motion and a second, I need to ask our attorney for his opinion. MR. KOWALSKI: It seems to me that there would be preJudice to the respondent if he was obligated to disclose all his witnesses having commenced his cross-examination without that knowledge. I think that that -- the frustration that the board feels can -- can be addressed by adopting rules and regulations applicable from the commencement of every case here forward, but I can't recommend that that procedure be implemented at this point in the middle of this case. MS. DEIFIK: I thought they already had to do that because there's already a rule and a procedure whereby they have to, so many days in advance, present their packet and provide so many copies to be distributed to the board. MR. HAZZARD: Miss Deifik, I -- I have to be completely honest with you. From the outset of this case, I have tried to find the rules and procedures that --that govern this proceeding, and I have been unable to do so. I have not inquired of this set of counse~ but did inquire of Mr. Bryant prior to the outset of the hearing in July and was told we don't have any. And for the record I did offer at that time, let's -- let's make some -- let's exchange witness lists, etc. That offer was declined. MS. LOUVIERE: I -- I thank you for your -- your cammentsJ but I believe in an effort to expedite this -- and the Board of County Commissioners wants us to expedite this -- I'm going to 3tand with my -- my motion -- my second to Miss Deifik. Page 28 December 13, 1996 MS. DEIFIK: Well, I'm going to withdraw my motion, though, based on what Mr. Kowalski is saying, because I agree with Miss Rawson that if we're going to do this, let's do it right. Let's have the circuit court reverse us on substance or affirm us .on substance, not on procedural screw-ups, and let's get a set of rules so this doesn't happen again. CHAIRPERSON RAWSON: Yes, Miss Sullivan. MS. SULLIVAN: Madam Chairman, Mr. Hazzard has indicated that he would probably need two days. Mr. Manalich had indicated that he might need 1 1/2 to 2 days. That's four days. I believe we have five days scheduled. CHAIRPERSON RAWSON: Correct. MS. SULLIVAN: We have a regularly scheduled meeting that's a very important case on the 23rd. If that's the case, could we limit this hearing to four days and have our regularly scheduled hearing on the 23rd? CHAIRPERSON RAWSON: We -- we have a case scheduled -- that's our regular -- MS. SULLIVAN: That's our regular hearing. That's going to put us behind again if we don't do that. MR. McCORMICK: Can we change that regularly scheduled hearing to the 30th so we can hear this case four consecutive days? MS. SULLIVAN: The only thing that -- I thought about that. It was bothering me. CHAIRPERSON RAWSON: You noticed everybody? MS. SULLIVAN: No, we haven't. No, we haven't. We can do that but -- CHAIRPERSON RAWSON: Why don't you -- why don't we do tfiis." Well, we're going to take a break in a minute, make sure that the five days are okay with everybody. If we could notice the people for that other case to the 30th, then hopefully based on what the two attorneys are telling us today, we can complete this case on the 22nd, 23rd, 27th, and 29th. And then on the 30th we could have our regularly scheduled board meeting and that next case. MS. SULLIVAN: That would be fine. I can notice later but not earlier. CHAIRPERSON RAWSON: Okay. Well, did you have something else you wanted to say? MR. MANALICH: Just a brief clarification which Miss McEachern already alluded to. We have no quarrel with Mr. Hazzard's constructive suggestions for future improvements and how prehearing proceedings can occur, and we would welcome and look forward to working with everyone here in that regard. For the purposes of this . hearing, we just want you to be clear that the counsel that are here today, myself and Ms. McEachern on behalf of the county, inherited a situation here as far as what had transpired prior to the first date of hearing -- MS. DEIFIK: But then let's all work together and be fair and -- and move forward. MR. MANALICH: Agreed. What I'm saying is that I want you to understand that the counsel you have before you here today, Page 29 December 13, 1996 myself and Miss McEachern, did offer when we took over this case to have that exchange of witnesses. Now, I understand Mr. Hazzard's fairness argument. I'm not here to -- MR. LAFORET: Excuse me. I'm trying to listen to this. MR. MANALICH: I'm not here to quarrel with that. I just want you to understand what the position of -- CHAIRPERSON RAWSON: I unders tand. And we are aware that it was Mr. Bryant and that you two weren't even present. Before we go off the record to take a short break to check our schedules, let me say this since we're talking about rules and regulations. Miss Sullivan, the -- our regular attorney is Mr. Yovanovich, and I think that right now is a real good time for us to direct him to take a look at the rules and regulations that were prepared some years ago and that were never really approved, give him the benefit of the discussions that we've had today, and see if he can't come up with a draft for some new rules and regulations for this board, because I think it's long overdue. I would agree. Well, let's take MS. LOUVIERE: Can you -- Jean, that's a great idea. Hold on for just three seconds, and I'll be done. Can you give him a time when he has to have this to us? CHAIRPERSON RAWSON: We want to put this on the January 30th agenda. MR. LAFORET: Before you take a break CHAIRPERSON RAWSON: Yes. MR. LAFORET: -- with due respect for all the legal :alent here, I haven't heard anybody mention the situation that may arise if one side or the other want to get a rebuttal witness in. Now, is this going to be -~ is this customary? Is it going to be accepted? CHAIRPERSON RAWSON: Well, yes. MR. LAFORET: You're going to delay it two or three weeks. CHAIRPERSON RAWSON: Well, rebuttal witnesses are certainly permissible, and I wouldn't not let them testify. Based on -- that's a good question. And based on the fact that there might be rebuttal witnesses, do you still think we can finish this case, and that would be your rebuttal, in four days? MR. MANALICH: One moment. MR. LAFORET: I would suggest if outside experts are required, you're not going to get them overnight, and they're not going to know what they're talking about until they have time to examine it. MS. SULLIVAN: Madam Chairman, I don't think I have any authority to direct the board's attorney to do that. Would you CHAIRPERSON RAWSON: Oh, don't you? MS. SULLIVAN: Would you give him a call? CHAIRPERSON RAWSON: Well-- MS. SULLIVAN: I've scheduled it for January. I have it on the agenda ~ CHAIRPERSON RAWSON: Okay. I guess that's my call ~hen. I apologize. I'll call him and direct him -- Page 30 December 13, 1996 MS. SULLIVAN: Thank you. CHAIRPERSON RAWSON: -- on behalf of this board. Thank you. MR. MANALICH: With regard to rebuttal, obviously when you don't have the exchange of information ahead of time for either side, it makes it even more difficult to forecast whether there will be any rebuttal and to what extent there will be any. For that reason ideally if we had the five days, I don't foresee a problem even fitting in the rebuttal. When you get to four, depending how the two cases in chief go, it may be pushing it. CHAIRPERSON RAWSON: We understand that. If we noticed everybody for our regular-scheduled board meeting and we have a case ready to go on the 30th, that we'll find ourselves finishing this case up in February, which is what I really truly wanted to avoid. So I'll just let you both know, and I think I said this yesterday, that I'm going to do everything in my power, while not limiting people's testimony or the right to speak before this board, to move this thing along. MR. MANALICH: Because I look at now -- I mean, Mr. Hazzard estimated two days for his presentation. I'm estimating a day to a day and a half for the county's, maybe closer to a day. I mean, on the other hand, depending on the length of cross-examination, it could go further than that, but I really think between a day and a day and a half at the most, but that would still put us within sufficient days to do whatever rebuttal I would have and then he would have. CHAIRPERSON RAWSON: Well, we'll start right on time, I can a~sure you that, and we'll move it right along. _.- Let's take a break till 10: 15, and everybody check your schedules and see what your availability is for those dates that we've mentioned. And then when we come back, remind me; we need to approve the minutes of October 30th. The board will be in recess for ten minutes. (A short break was held.) CHAIRPERSON RAWSON: Okay. Let's go back on the record. Code Enforcement Board of Collier County is back in session. Before the break I requested that the members of the board that are present here today check their calendars to see what their availability are for those five days in January, knowing that Mr. Andrews was here yesterday and he'd already checked his calendar and he was available on those days. Anybody have a conflict on any of those days? MR. ALLEN: I do, Jean. CHAIRPERSON RAWSON: Yes, Mr. Allen. MR. ALLEN: I can be here one week or the other, but every other week I rotate with Bill in the Bahamas. So if we can condense this hearing into three days, I can be here either week and any amount of days either week, but I cannot be here two consecutive wee-ks . MS. SULLIVAN: Madam Chairman, I don't think it will matter as long as we have a quorum and he can read the transcript for Page 31 December 13, 1996 che day that he's not here. CHAIRPERSON RAWSON: Which brings up the next item. I mean, I would urge everybody to be here every day, of course, because we need to have a quorum to vote. And I would think, Mr. Allen, that probably the most important day would be the day of the vote, which should be the second week or the last week of January. Now, we probably need to have a discussion and an agreement, hopefully, between the attorneys as to, since we know that we'll be here at least four days, what happens if we have seven members here on the 22nd, six members here on the 23rd, a different six on the 27th, and a different six on the 29th, the day, hopefully, that we're going to vote on this issue? Do we have a resolution as to that problem? And I will ask all the attorneys, including the board's attorney, for their opinion on that matter. MR. HAZZARD: Madam Chairman, I think it, frankly, is going to be impossible to coordinate seven calendars, attorneys' calendars, room availability, and that sort of thing. I think that what we need to do is make arrangements for daily transcripts from the court reporter. I -- we had a little bit of discussion on the break about this issue. I -- I don't think opposing counsel is opposed to that at all. I would urge the members of the board to focus on the latter part of the hearing so that you can be present to -- to vote as opposed to, you know, having been present to hear testimony and then not being able to vote, and then just simply urge members of the board to read the daily transcripts and get themselves back up to speed if ;hey've had to miss a day. And if we can reach agreement that that the last day of the hearing or the anticipated voting day will be fill in the blank -- ---CHAIRPERSON RAWSON: The 29th, I hope. MR. HAZZARD: -- perhaps that will be good for planning purposes for each member of the board. CHAIRPERSON RAWSON: I'm looking at the afternoon of January 29th. Well, is that okay with you, Mr. Manalich, if we had that problem? And obviously it's -- we're going to have that problem with Mr. Allen, we know, and he's reading the -- well, no, he was here for the first day of hearing, but he may be in a position that some of the other board members are now in that he will have to read transcripts. MR. MANALICH: No objection to that. CHAIRPERSON RAWSON: Okay. MR. MANALICH: No. My only question would be daily transcripts, I believe, are, as they should be, an additional extra cost for that production. Is there any question about how that will - be paid for? CHAIRPERSON RAWSON: This board can't make those decisions. MR. MANALICH: Okay. MS. DEIFIK: Can't the parties agree to split it to expedite this? MR. MANALICH: I guess we'll take it up between us. CHAIRPERSON RAWSON: I checked with the court reporter, Page 32 December 13, 1996 and daily transcripts are certainly an option that she can deliver. And so any board member who misses any day of testimony be advised that the daily transcript will be available for you to review, and you need to contact probably me or Barb Donovan and be sure that you've read it before the hearing starts on the next day. COURT REPORTER: Jean, I would need to know in advance before we even take it down that you're going to need it, because I have to have back-to-back reporters. I would need to know -- if somebody was going to need it, I'd need to know, like, at least a day or two in advance before it's even going to be cut. CHAIRPERSON RAWSON: Well, assuming that Mr. Allen's going to be gone the week of the 20th of January, he'll be in the Bahamas then, so I can say the 22nd and the 23rd we'll need it. Hopefully we'll have a full contingency that last week. COURT REPORTER: Mr. Allen, can I get your phone number just to verify that with you before -- ahead of time. MR. ALLEN: 591-1243. CHAIRPERSON RAWSON: According to the rules of the coun the Code Enforcement Board, whether they're approved or not, that I -- that I've been following, anyone who is going to be absent is to notify the chair, and that's been the procedure in the past. And so I've gotten those phone calls when -- or letters when you're not going to be here. I would appreciate knowing from any member of the -- of the board if you're going to be unavailable on any of those days as far in advance as possible. I know, you know, you wake up sick. I mean, you can call me at home. Then I need to let the court reporter know, obviously, as soon as possible. MR. MANALICH: Madam Chairman, perhaps if we could take just a very short five-minute break. And I am concerned about whether the cost -- I don't want to enter -- enter into an agreement here where you're expecting that we're going to have these daily transcripts. This is going to be an onerous burden on the code enforcement budget. I'm thinking maybe if we take a five-minute break and discuss between opposing counsel -- MS. SULLIVAN: Well, I don't think it's necessary. I'm pretty much charged with paying all the costs. It's already been burdensome. I may have to get a budget transfer. What I would like to know, if you could tell me how much per trans -- give me some kind of ballpark figure so that I'll know if I have to go get a budget transfer. Is that possible? MR. MANALICH: I think this question is directed to the court reporter. COURT REPORTER: It depends on how long you go during the day, how many breaks you take -- · MS . SULLIVAN: How about a maximum? COURT REPORTER: -- how fast they talk. I would have to go back and figure out a typical -- look at a typical code enforcement day, how long it goes. You'd have to give me the length of day you're going to do. Is it from 8:30 till 5 and an hour lunch? "!S. SULLIVAN: Let's say the maximum for a full day. COURT REPORTER: 8:30 to 5, an hour for lunch, a break Page 33 December 13, 1996 in the morning, a break in the afternoon. I'd have to get back with you. And you want it the next morning, or you when would you want it by? MR. ALLEN: That was my question. You're going to provide it that-night delivery or next-day delivery? MS. SULLIVAN: That's not necessary. MS. DEIFIK: You want to think about a weekend. CHAIRPERSON RAWSON: Mr. Allen would only need it by the weekend if he'll be -- so it will be ready on the 27th, and you come back on what day? MR. ALLEN: Sa turday . COURT REPORTER: So how many days is that? CHAIRPERSON RAWSON: Well, then you've got MR. ALLEN: Two days. CHAIRPERSON RAWSON: -- two days, the 24th and the 25th. MS. SULLIVAN: thousand dollars? what? COURT REPORTER: be one and a half the have to check and get estimate. MS. SULLIVAN: Wouldn't it be okay as long as all of the board members reviewed all the transcripts before the vote? MR. ALLEN: Could we do it more economically? Can we do a tape recorder versus a transcript? Would that work for everybody v~~~u~ spend the money? CHAIRPERSON RAWSON: on the tape recorder. MS. SULLIVAN: I guess what I'm saying, if we don't have to have them that night or within two days or something, as long as we have them before the vote, that would probably save me money i~ we can do that. CHAIRPERSON RAWSON: Well, that's very possible. We can probably be assured that everybody had them by the 28th, and that way everybody would be up to speed. MS. DEIFIK: Madam Chairman. Barbara, I recall your firm marketing at one time a procedure whereby you -- you used a computer and it was automatically transcribed? CHAIRPERSON RAWSON: I just asked her about that, Miss Deifik, and that's not going to be a possibility, although I'd love to think that we're going to be as sophisticated as they are in the O. Ji. case. MS. DEIFIK: She tried to sell it to me. CHAIRPERSON RAWSON: Well, that's wonderful. I just tried to have this -- I mean, I just had this discussion with her at the break, and some day we're going to be that automated, and I can't wait. but it won't be this January. MS. DEIFIK: Okay. Then can I ask a second question. If we are forced to produce these transcripts, what's the possibility I guess my question is, am I talking a Ten thousand dollars? A million dollars? Or All right. within two days, it would normal rate, although it's in our contract. I'd back with you, and it would be just purely an Somebody has to transcribe what's Page 34 December 13, 1996 that board members could get them on disks to make them a little built less unwieldy? COURT REPORTER: That's not a problem at all. We provide them to the county on ASCII. Now, I will tell you I could do the real-time, but I would need lots of breaks, and I would absolutely have to have you talk slowly, everybody, and one at a time. And that is an option. But that is not what happens in the board meeting, and that is why we switch out reporters half days. One of my real-time reporters is leaving, but if -- I mean, that is a possibility, but I'd need lots of breaks. CHAIRPERSON RAWSON: We can go with the transcripts, and in order to, you know, expedite the matter and save the county some money and make it easier for you, I think that if we had all the transcripts from the 22nd, 23rd, and 27th to us by the 28th, then we're going to resume on the 29th.. Everybody will be up to speed, and hopefully that's the day we're going to have a vote. MR. McCORMICK: Let me ask one thing. I sort of instigated setting up that regular hearing on the 30th instead of the 23rd. Would it be better if we, again, flip that around so that Mr. Allen would only miss the 22nd, and then we'd have those three days on the second week consecutively? MR. MANALICH: One other thought, Madam Chairman, which is, I believe this room is equipped to audiovisual tapes of these meetings like the Board of County Commissioners. I don't know if that would be another alternative but -- MS. DEIFIK: I'd have to brush my hair every day. You're asking too much. MR. MANALICH: But the other concern I would have, I guess; is I don't know if Mr. Hazzard's intent was that they receive a transcript every night or if it just be before the vote. MR. HAZZARD: I think you need to receive a transcript in ad -- in ad -- in enough time in.advance as to allow you to make an informed decision. You know, that's certainly up to you all. I don't mean to suggest any type of schedule in that regard. I would just mention that while it takes eight hours to watch a eight-hour videotape, it takes far less to read a transcript of an eight-hour day; so I do really think that the transcript is the way to go. MS. SULLIVAN: Madam Chairman, I don't think that it's a problem, because the Board of County Commissioners wants to move the case. And if they have to do a budget transfer, I think they'll do it. CHAIRPERSON RAWSON: Well, I think that we just need the transcripts available to us on the 28th. And even though I fully intend to be here on every single day, you know, I would probably enjoy reading back over the transcripts on the 28th, too; so we can make them available to the whole board. And then on the 29th we really should all be up to speed, and that would be the big day all seven of us need to be here. MR~ MANALICH: Well, that would be my question, is do we necessarily have to incur these expenditures if everyone were to attend -- Page 35 December 13, 1996 CHAIRPERSON RAWSON: No. MR. MANALICH: -- every day. CHAIRPERSON RAWSON: Of course not. MR. MANALICH: So it would only be for those days where one or more is absent. CHAIRPERSON RAWSON: Certainly. MR. HAZZARD: And Madam Chairman, I think Mr. McCormick's suggestion was a good one. If we know that Mr. Allen is definitely unavailable on the 23rd, perhaps the board would want to consider moving whatever that other item is that was set for the 30th to the 23rd so that we could make our final day in this case the 30th, and Mr. Allen could be present for the 27th, 29th, and 30th, and then the -- then the -- the absentee problem and transcript problem that we know about now only applies to the 22nd. CHAIRPERSON RAWSON: Tha t 's fine. We would be hearing this case on the 22nd, another case on the 23rd, and back to this case again on the 27th, you know, which is kind of the way I live my litigious life every day anyway, but just so the board knows that you're going to have to shift gears if we do this. Do you have a preference, Miss Sullivan? MS. SULLIVAN: I don't care. Either way will give me plenty of time to notice it. It doesn't matter. MR. MANALICH: So the days available will be the 22nd, 27th, 29th, and 30th? CHAIRPERSON RAWSON: If we -- if we notice this other case for the 23rd, yeah. MR. HAZZARD: And, Madam Chairman, just as one other point, can I take it as gospel that we won't get to my witnesses on the-22nd so that I don't have to have people available until the 27th? In other words, if it's -- if it's 4:30 on the 22nd and the county's done, will the board not look to me to say, put your first witness on, Hazzard, or, you know, can we simply say your first witness will not start earlier than -- CHAIRPERSON RAWSON: Well, I think that question is better directed to Mr. Manalich. Based on what he said earlier, I think you can probably assume he's going to take all day on the 22nd. MR. MANALICH: Well, I think we -- depending on the extent of the cross-examination, I think direct examination-wise it's very possible we could finish before the end of the day that first day. But it's when you factor in the cross-examination; that's what leads me to say it could go beyond one day. MS. DEIFIK: Can we use this room past five o'clock? I'd like to get this done. MS. SULLIVAN: I told the clerk that we'd probably need -- there's some more meetings, regularly scheduled meetings in here that they really don't want to put off; so what we're going to do is close that part off. So the room will be available to us all day. MS. DEIFIK: Okay. My question is, let's say that -- that we're all ready, willing, and able to go until six or seven o'clock in order to get a portion of the case concluded. And in order to conclude in the time available, I'm willing to stay Page 36 December 13, 1996 MS. SULLIVAN: It was my understanding that they were just going to clear it, not have anybody else in here that can't be accommodated in that back room; so we're okay. CHAIRPERSON RAWSON: Okay. MS. DEIFIK: So -- so my point would be MS. LOUVIERE: Can we have cocktails? MS. SULLIVAN: I don't have any problem with that either. MR. HAZ ZARD : So moved. MR. ALLEN: Make that a motion. MS. DEIFIK: I have learned from -- from the judges over the years why they won't give day certains, because things never go as planned. And if Mr. Manalich rests at two o'clock, I want to go forward with Mr. Hazzard's witnesses in the -- witnesses and -- MR. MANALICH: Let me put it this way. I think the direct we have for the three witnesses in addition to Mr. Mazzone would finish before the end of the day on the 22nd. But when you factor in cross-examination, that's where I don't know -- CHAIRPERSON RAWSON: You probably ought to have one on call. MR. HAZZARD: Okay. CHAIRPERSON RAWSON: All right. Now, procedure -- procedurally -- well, let me ask the two attorneys, because I want to ask our attorney to talk to this board a little bit. We're all set on the schedule, and we're set on -- hopefully nobody will miss except Mr. Allen on the 22nd, and the rest of us will be here on the rest of the days, and God willing, .we' re going to get this case done on the 29th. Anything else from either attorney? - ..- MR. MANALICH: Well, I thought I heard the 30th. CHAIRPERSON RAWSON: The 30th, I apologize. MR. MANALICH: The 23rd will not be heard. CHAIRPERSON RAWSON: That's correct. That's true, the 30th. Now I'd like to ask the board's attorney to procedurally give -- give this board some advice as to reading of transcripts and any other thing that you think we should know to prepare ourselves for doing a good job in January. MR. KOWALSKI: Thank you, Madam Chairman. This -- this obviously is a little different procedure for the board. Yeah, I know you recall that -- that we struggled. We attorneys struggled for some time before I was comfortable in concluding that this board would legally be entitled to proceed based upon reading the transcript. But the -- the case authorities, legal authorities that I reviewed which persuaded me of that, make it clear that it will be necessary for eactt of you members to either be present during the trial time or read the transcript for the portion of time that you"re missing. And so one -- one of your assignments for the members who were not present at the July hearing, the other members are going to be required to review the transcript and also the exhibits that were introduced into evidence and just state very simply on the record that you did, in fact, make that review. Okay? And -- and I'm going to suggest that if there are other times -- and we know that there will be at least one conflict Page 37 December 13, 1996 when some members are not present, that -- that you on the record that you have, prior to your ultimate matter, been present or reviewed the transcript for Okay? The other thing that I wanted to remind you is that we're going in, finally, next month into the second day of a hearing. The law looks at it like, gee, we met yesterday, and now we got a hearing again today. And you -- you'll have a tendency, I think, to review the transcript, read it, haven't heard the testimony at all or you heard it months ago, and you'll have a tendency to want to come in to the January meeting and discuss what you read in the transcript. But I'm going to encourage you not to do that, because you wouldn't begin to discuss the evidence in a case after you've only heard a portion of the evidence. Your discussion of the evidence should wait until you've heard all of the evidence, and then as a board you deliberate about what you've heard and what you might want to conclude. And so I discourage you from wanting to discuss the transcript when you reconvene. The only exception to that would be that if -- if one of you members feels that it is extremely important to get one of those two witnesses back so that you as a board member can ask an additional question, that would be acceptable. Aside from that, let's just proceed as though -- as though you're in the second day of a hearing and get going and get the ball running, and when we come back here next time, we just pick up where we left off. The last thing that I wanted to mention is that I know that some of you are -- inevitably we will all begin to form preliminary impressions du~ing the course of a case and wait until the conclusion of the case to form definite conclusions. And I know that --that your minds are racing in terms of thinking what might be some practical resolutions to the issues that are going to -- that are being presented here. But I do encourage you not to vocalize any preliminary impressions that you may have made, because it could conceivably give the appearance of your prejudging the case. Now, I haven't heard anything at these hearings to lead me to believe that any member has prejudged the case, but I do caution you to stick strictly, almost like a judge would, to hearing the evidence and not commenting on the evidence during the course of the hearing. Okay? CHAIRPERSON RAWSON: Thank you very much for those comments. Now, anything else further on the Lely Barefoot Beach case? MR. ALLEN : Chairman. CHAIRPERSON RAWSON: Yes. MR. ALLEN: Would it be easier, first, and more economical to call me like we talked about doing yesterday? CHAIRPERSON RAWSON: Apparently not, Mr. Allen, because we were told we had to use the pay phone to call you. And I know that you want -- MR. ALLEN: A lot of quarters. CHAIRPERSON RAWSON: I know you were sitting by your Jhone in the Bahamas 'wondering why I didn't call. make a statement vote on this the entire time. I've just got one more question, Madam Page 38 pecember 13, 1996 ~urposes of hearing the next day's testimony of Board of County Commissioners versus Lely Barefoot Beach Property Owners~ Association. All of the members who have not read the transcript of the first day, and I might even say those of you who were here and have copies of that transcript,. review it, and be here at 8: 30 ready to go and ready to hear the evidence. Anything else further to come before this board? If not, we will stand adjourned. ***** , There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 10:45 a.m. COLLIER COUNTY CODE ENFORCEMENT BOARD /YJ~ ~ ' M. J RAWSON, CHAIRPERSON TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING BY: Barbara A. Donovan Page 40