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CEB Minutes 01/27/2000 RJanuary 27, 2000 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD OF COLLIER COUNTY JANUARY 27, 2000 LET IT BE REMEMBERED, that the Code Enforcement Board met on this date at 9:00 a.m. in REGULAR SESSION in Building F of the Government Complex, East Naples, Florida, with the following members present: CHAIRPERSON: Clifford Flegal Robert Dusek Darrin M. Phillips Peter Lehmann George Ponte Kathryn M. Godfrey Rhona E. Saunders Diane Taylor ALSO PRESENT: Maria Cruz, Code Enforcement Investigator Michelle Arnold, Code Enforcement Director Jean Rawson, Attorney to the Board Page I CODE F, NFORCEME~? BOARD OF COLL~JS~ ~OT3NT¥. ~LOKIDA Date: January 27, Z000 at 9:00 o'clock A.M. bocaCion; Collier Cowry Couer~Taent Center, A~m~. Bldg, 3rd Floor NOTE: ANY PERSON WHO DECIDES TO APPEAL A DZCI$ION OF THIS BOARD WILL NE~D A RECORD OF THE PROCEEDINGS P~RTA~NING ~gRRRTO, AND THEREPO~£ MAY NEED ~0 ~NSUR~ THAT A VERBATIM R~COR~ OF THE PROC~DINOS IS ~V~ADE, WHICH RECORD INCLUDES THE T~STIMO~N'Y A~D EVID£NC~ UPON W/4ICM TEE APPEAL IS TO BE BASED~ N~I~HF, R COLLIER COUNTY NOR THE CODE ~NFORCEMENT~BOARD SHALL BE R£SPON$IBLE FOR PROVIDING T~IS RECORD. 1. ROLL C.AL~ Z. APPROVAL OF hGENDA 3, APPROVAL O~ MINUTES December 2~, 199~ Ao BCC vs. Dale L. and Chary% Ao Morbal CEB NO. 99-069 B. BCC vs. George Dub~ino and John Demarco CEB No. 99-072 C. BCC vs. Anthony P, Delduca CFR NO. 99-07S D, BCC vs. Joseph F~laCO, David & Zena£da Falato CEB No. 2000-003 E. BCC vs. Al£redo & Miradis ~irall~s CEB NO. 2000-004 F. BCC vs, Nardar, Inc. CEB No. 2000-005 10. 2. 3. 4. 6. A. BCC vs. James K. Kaiser O/b/a Southern Exposure of Naples, Inc. B. BCC vs. Dagoberto & Maria s. Saldana A. scc vs. Smuder Faust Realty, Inc. B. BCC vS. Dagoberto & Maria S. Saldana C0M~ZNT~ N~XT MEETING DATE February 24, 2000 ADJOURN Jea~ Raw$o~ Susan Hurray Barbara Dur~eson Scan Chrzanowski Johnnie Gebhardt Eon Nino Rules and Regulations Planning Environmental Review Engineer Review Building Permits Planning CEB No. 98-00S CEB ~o. 99-071 CEB No. 99-074 CEB No. 99-071 January 27, 2000 CHAIRMAN FLEGAL: Call the meeting of the Collier County Code Enforcement Board to order, please. Please make note that any person who decides to appeal a decision of this board will need a record of the proceedings pertaining thereto, and, therefore, may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. Neither Collier County nor the Code Enforcement Board shall be responsible for providing this record. Have the roll call, please. MS. CRUZ: Good morning. For the record, Maria Cruz, code enforcement investigator. Roberta Dusek? MS. DUSEK: Here. MS. CRUZ: Clifford Flegal? CHAIRMAN FLEGAL: Present. MS. CRUZ: Kathryn Godfrey? MS. GODFREY: Present. MS. CRUZ: Peter Lehmann? MR. LEHMANN: Present. MS. CRUZ: Darrin Phillips? MR. PHILLIPS: Here. MS. CRUZ: George Ponte? MR. PONTE: Here. MS. CRUZ: Rhona Saunders? MS. SAUNDERS: Here. MS. CRUZ: Diane Taylor? MS. TAYLOR: Present. MS. CRUZ: Let the record show that Mireya Louviere turned in her resignation. CHAIRMAN FLEGAL: Since we have six regular members and both our alternates are present, one of the alternates will participate, and I believe that's Ms. Godfrey. Approval of our agenda. Any changes? MS. ARNOLD: Yes, staff has -- for the record, Michelle Arnold, code enforcement director. Staff has a change to -- Item 4-F should be removed. That Page 2 January 27, 2000 item should not be on the agenda, and we are also removing Item A under new business. CHAIRMAN FLEGAL: Any other changes? Any additions by the board members? I would entertain a motion to approve the agenda as changed. MS. DUSEK: changed. aye. MR. PONTE: CHAIRMAN FLEGAL: I make a motion that we approve the agenda as I'll second. All those in favor, signify by saying Any opposed? (No response). CHAIRMAN FLEGAL: Thank you. Minutes from our December 23rd meeting, anybody have any corrections, additions? MR. PONTE: I'll make a motion that the minutes be approved. MR. LEHMANN: Second. CHAIRMAN FLEGAL: I have a motion and a second we approve our minutes from December 23rd. All those in favor, signify by saying aye. Thank you. We now open our public hearings. The first case, 99-069. MR. LEHMANN: Mr. Chairman, as a former employee of the builder of record on this particular case, I would recuse myself from hearing this particular case. My association with that builder has ended far prior to the actions that we are hearing here, although I just want to avoid any perceived conflict of interest. CHAIRMAN FLEGAL: I understand, so noted. In that case, for this one particular case, our other alternate, Mr. Phillips, you will participate. Is staff prepared? MS. CRUZ: Yes, sir. Case Number 99-069, the Board of County Commissioners versus Dale L. and Cheryl A. Horbal. Let the record show that the respondents are present. Page 3 January 27, 2000 Staff provided the respondent as well as the board and the court reporter a copy of a composite exhibit. I'd like to ask the respondent if there's no objection to admitting this composite exhibit into evidence. CHAIRMAN FLEGAL: Okay. MS. CRUZ: Before we do that, I'd like to make a correction. On Page 2 of that package, Item Number 5 should reflect the date of April 8, 1999 and not June 1st, 1999. CHAIRMAN FLEGAL: Mr., Ms. -- is it Horbal or-- MR. HORBAL: Horbal. CHAIRMAN FLEGAL: Do you object to the package being entered? I assume you've seen it. MR. HORBAL: Yes. CHAIRMAN FLEGAL: You have no objection? MR. HORBAL: No objections. CHAIRMAN FLEGAL: Thank you. So entered. MS. CRUZ: I'd like to mark this Composite Exhibit A, please. MR. HORBAL: Where was that change that you were -- MS. CRUZ: Page 2, Item Number 5. CHAIRMAN FLEGAL: Page 2, which is a letter, it says statement of violation and request for hearing. MS. CRUZ: 'That's correct. CHAIRMAN FLEGAL: Do you want to do anything with the defense packet? MS. ARNOLD: Their defense packet. MS. CRUZ: No, sir, there's no -- MS. ARNOLD: There is a defense -- MS. CRUZ: Excuse me, there is a defense packet that also was provided, and I'd like to introduce that packet into evidence as well. CHAIRMAN FLEGAL: Okay. So noted. MS. HORBAL: I also have another packet from Longshore Lakes that is not included in my packet. MS. ARNOLD: She needs to be -- excuse me, she needs to be at the podium, at the microphone so that this can all be Page 4 January 27, 2000 recorded. MS. HORBAL: I also have a packet from Longshore Lakes, their site development plan -- MS. ARNOLD: You need to announce yourself for the record, please. MS. HORBAL: Okay. You guys will have to give me directions because I've never done this before. MS. ARNOLD: I am trying to do that. MS. HORBAL: My name is Cheryl Horbal. CHAIRMAN FLEGAL: If you'll wait one moment, please, Ms. Horbal. MS. HORBAL: Thank you. CHAIRMAN FLEGAL: Would you swear her in, please? (The speakers were sworn). MR. HORBAL: She's a little nervous, so bear with her. MS. ARNOLD: If she has additional information, can that.not be introduced at the time that she gives her testimony, Jean? MS. RAWSON: Yes, it could. Do you have additional information or different new documents you want to -- MS. HORBAL: Additional information. MS. RAWSON: -- that you want the board to look at? MS. HORBAL: I don't know if it's -- yes. MS. RAWSON: Well, why don't we wait until it's your turn to present your case, and then you just tell the board that you have something you want them to see, and then you need to show it to Ms. Arnold, and then she'll look at it, and we'll pass it through the board. CHAIRMAN FLEGAL: You may sit down, please. MR. HORBAL: Sorry? CHAIRMAN FLEGAL: You can sit down there, until we get to your turn. We'll let the County give their side first. Yes, ma'am. MS. CRUZ: Mr. Chairman, the violation here, the alleged violation of Ordinance 99-102, Sections 3.9.6.6, is the two large java plum trees in the rear yard at ten feet inside the property line, and it's a prohibited exotic. The violation exists at 11213 Page 5 January 27, 2000 Longshore Way, Naples, Florida, and it's more particularly described as Longshore Lake Unit 1, Block B, Lot 7. The owner of record is Dale and Cheryl Horbal. The violation was first observed on April 8, 1999. Notice of violation was given on August 3rd, 1999. The violation was to be corrected by September 6th, 1999. A reinspection of the violation was conducted January 26th, year 2000, revealing the violation remained. The notices were provided, both notice of violation and notice of this hearing were provided via certified mail. At this time, I'd like to ask Investigator Alex Sulecki to define her findings. MS. SULECKI: Good morning, Chairman, board members. For the record, my name is Alexandra Sulecki. I'm an environmental specialist with the code enforcement department, and I'm the investigator in this case. (Ms. Sulecki was sworn}. MS. SULECKI: As you can see, this is about two trees. They are very large trees, and they are in the back of these folks' home. This is a case that started a little bit earlier with a case on the developer of this Longshore Lakes. It originated from a routine PUD monitoring visit by planning services, and I was sent a memo. regarding exotics existing in open space areas and home lots there. Myself and another investigator, Kimberly Koehane, who is with the department, did a site visit, and we came up with the location of the exotics, and I have a map here if I can put it down. They existed primarily on a little strip along Valewood Drive where the developer has a very small buffer easement backed up to homes, and that buffer easement widens near the entrance, but then it narrows very much so, to 15 feet. When I first approached the developer and noticed him for the exotics there, I was told that there was a survey done, and part of those exotics existed on private property, and that if the developer was going to remove exotics, they felt that I should also approach the private homeowners. I couldn't argue with Page 6 January 27, 2000 that. So, at that point, one case became eight. And so I went back and did some research on the homeowners to find out whether I, indeed, had the authority to enforce that there, and in this particular case, there were -- actually eight cases now, and there were seven other private property cases that are identified on that map. I went back, and I did some research, and I actually did some measuring with a wheel out on the site a couple of times, and I came up with the fact that on this particular property, and there was another one as well, there were mature trees that had existed, obviously, prior to the C.O. of the home. So, I went and did some research into the building permit file and came up with this fact. However, I guess there was some kind of dispute about exactly where the property line was, and that was really the crux of the matter in this. After my measuring, I determined that they were on the homeowners' property, so I sent out a courtesy letter, and -- this took a lot of time, because I met with my supervisor a couple of times, and I think I actually measured twice, and I visited the homeowners. At that point, I had no number for them. They have an unlisted number, so I visited the home and explained why I was there, why I was on the property. I think that's when I talked to Mr. Horbal's mother. I received a letter in response to my courtesy letter stating that they weren't going to remove them because the home was C.O.'d with them on there, and so I wrote a response letter explaining that there was still a requirement, and I asked them to contact me so we could discuss the matter. I didn't receive a response to that. In fact, I still don't have a phone number for them. So, I went back after meeting again with my supervisor. I went back and I tried to explain the situation to them. At that point, they still did not want to remove the exotics and so -- there was still a dispute about exactly whose property they were on, so I took the field supervisor out with me, and we actually found the property pin, and we found that the trees were ten feet inside the pin. Page 7 January 27, 2000 So, I met with the supervisor again, and the consensus was that there was a clear -- clear language in the county ordinance in the PUD documents that required the removal, and I really didn't have the option not to enforce it, so I proceeded, and I proceeded through the regular manner of serving notices of violation. Of the eight cases, this is the only one remaining open. The developer removed numerous large trees, and the developer actually became the homeowners' association during the course of this case. Other property owners along this stretch, one other one removed a java plum that wasn't so big, but the same situation, it was -- the home was C.O.'d with the tree on it. They thought it was another species of tree. Most of the rest were Brazilian pepper growing inside hedges. They were all removed. That's really the case, but I was provided with a copy of the defense packet, and I read the Horbals' letter, which mentioned my attitude and professionalism, and I just want to say something brief to that. I bring people bad news. I recognize that, and it's often a challenge, but I'm always conscious of treating people with respect and a professional attitude. MS. ARNOLD: If I may, I'd like to just add with respect to the investigator's conduct. If there was a problem, the venue for that would be to call myself or the supervisor. It's not appropriate to bring that into a defense packet. So, if the Horbals have a problem, they are welcome to call me, okay. CHAIRMAN FLEGAL: The board understands that. The County is assured that the trees are, in fact, on their property? MS. SULECKI: Yes, sir. There's a picture in the defense packet of the property pin, and the trees are about ten feet inside that. MS. DUSEK.' Alex, I have a question. When the C.O. was given, the person who gave the C.O. knew the property line at that time, knew the boundaries, where the trees were located? MS. SULECKI: I believe the confusion laid in that the person who C.O.'d the property did not believe that the trees were on Page 8 January 27, 2000 the Horbals' property. They believed them to be on a berm that's in the rear of these properties. He believed that that was all developer property, but in actuality, portions of the berm are on private property. MS. DUSEK: Is it his responsibility to be accurate rather than just saying he believes or she believes? MS. SULECKI: I really can't testify to that. I'm sorry. MS. DUSEK: Michelle, do you know? When they are given a C.O., do they have to know exactly where the boundaries are? Is this part of giving a C.O.? MS. ARNOLD: Well, when the C.O. is given, sometimes the flags for properties are existing on the property, and sometimes they are not. Mistakes are made, but the language that was provided to the property owner to explain to them what the requirements are clearly says regardless if an error was made on the side of the County, that these trees need to be removed in perpetuity, that means forever. So even if they were to have been removed and come back, they need to remove them again. MS. SAUNDERS: Do you have any understanding as to why these trees are considered exotics and have to be removed? MS. SULECKI: They were placed on the list in 1991 because they have certain characteristics, being invasive. They -- fruit, the fruit is carried by birds all over the place. They tend to form monocultures. They grow very quickly. They shade out native plants. They are becoming a problem in natural areas. MS. TAYLOR: Don't they also have a horrendous root system? MS. SULECKI: With the java plums, I'm not sure about the root system. I never heard anything specific about the root system. MR. PONTE: Alex. CHAIRMAN FLEGAL: Go ahead, George. MR. PONTE: There was some mention here of considerable landscaping activity done early on, and I'm just a little confused by it. Was this landscaping activity done by the developer and then reinspected by someone from the County and approved? MS. SULECKI: Are you speaking about how the case Page 9 January 27, 2000 initiated with the planning services? MR. PONTE: Yes. Speaking about that and the fact that it appears that there has been several occasions when someone from the county has been out to the property, and I don't mean yourself, I mean some other inspector, and given a C.O. and said fine or given approval and has not noticed the java plums at all, and they are of substantial size, I gather. MS. SULECKI: Uh-huh. I don't know why that happened. I can't speak for the gentleman who did the C.O. MR. PONTE: Okay. Thank you. CHAIRMAN FLEGAL: Any other questions for the County? Thank you, Alex. MS. SULECKI: Thank you. CHAIRMAN FLEGAL: Ms. Horbal. MS. HORBAL: Good morning. I'm all sworn in and legal -- CHAIRMAN FLEGAL: Yes, ma'am. MS. HORBAL: Okay -- before I start. I'm going to pretty much rehash what you-all have in front of you right there, and that is that during the week of April 26th, Ms. Sulecki came to our home -- we live in a gated community. Longshore Lakes is a gated community -- and without announcing herself at the front gate. As she came to my home, we were out of the country at the time, and my mother was baby-sittingi and arrived at our front door saying to my mother, you have 30 days to remove the trees or else you will be fined, without any prior explanation of what we had done wrong, what we were in error of, or what the entire problem was. My mother, unfortunately, was unable to reach us, and so I was not able to do anything until we arrived back in the country, approximately five days later. At that time, I contacted our contractor immediately, because the main reason we bought this home was because of the trees, the two trees that were on that property, and the trees are a huge asset for that property. So, I contacted the builder immediately and I said I need your assistance to clarify whether these trees, if we acted in a responsible manner. Rottlund Homes, who was the contractor, told me that he Page 10 January 27, 2000 would look into it and get back to me, and it was about a week later when he got back to me with a copy of the job inspection card stating that we had been approved by the County. Everything had been signed off and our C.O. had been granted and that there were no exotics to be removed. Prior to the inspector coming in, there were Brazilian peppers on the property and on the adjacent empty lot, and our contractor did remove at the time of site work, he did remove all the Brazilian peppers from our property and the lot next door so that they would not grow back onto our property during the building period. I sent a letter dated June 13th to Ms. Sulecki with a copy of the county job inspection card showing that we had been approved and that we had done everything that we were supposed to do. On the 21st, I received a letter back from her that even though an error had been made on the part of the county, that we still had to remove the trees at our expense. Again, Ms. Sulecki visited our home on July 14th; again, not announcing herself at the gate, coming to my home unannounced and telling me that this problem was not going to go away. I asked her at that point if she had anything to say to me, it needs to be put in writing, that I would appreciate it if she did not come to my door again unannounced, and that if the County had a problem, to please do so in writing with us. After that, I did contact her supervisor. In fact, immediately after she left, I contacted Bill Chahram, is that his name -- I'm sorry, it's not his name. It starts with a B. MS. ARNOLD: Bill Bolgar. MS. HORBAL: Yes. I contacted Bill after Ms. Sulecki's visit that day, and I reiterated to him what had occurred. I was very, very upset, and he did calm me down, and he assured me that there are steps that could be taken. At no time during my conversation with Bill or with Ms. Sulecki was I ever informed of the scenario of how this all came to be. I had no idea why I was being singled out as I saw it, because I had no idea what was going on with the transition committee with Longshore Lakes or that there were other Page 11 January 27, 2000 violations. At no time was that ever explained to me in writing or verbally. So, in my -- the way I saw it is I was being singled out. The next visit I received, and I was not at home at the time, was from a Ms. Teresa Passmore. She dropped off a little card and dropped off the packet asking us to appear in court. The first packet I received was not sent certified. I believe there were one or two more. I only -- actually, there must have been only one because I only have a copy of one, and I kept all the records. So, if you have a record of that, I don't. MS. ARNOLD: Yeah, we just sent one. MS. HORBAL: Okay. There was just one certified, okay. Because she dropped off the packet at our home, and, again, I was not home at that time, requesting my appearance here before you on November 29th. We were unable to comply with that date, obviously, because of the holidays. We were going to be out of town, business, prior business engagements, so I had asked for a postponement, which was granted until today. For those of you who are not familiar with the java plum tree, and I myself was not familiar with it, the tree is a very large tree that has been native to Florida since 1877. It was brought here from Jamaica. It's a tree that grows well in a tropical climate, so it's done very well here, and it was planted early on in Collier County by the developers because it provided a mature appearance to developments that they were trying to sell at the time. So, there are in existence today numerous java plums in Collier County, not my -- just not my two. In fact, there are probably thousands of java plums in Collier County today. I understand that this tree grows very quickly. It is a tall tree. It can grow up to 75 feet. It provides wonde.rful shade. It provides a very comforting atmosphere. It's not a tropical tree such as a palm tree. So, it's a very warm, comforting type of tree, and so I can understand why the developers used it, because it did make a nice appearance in developments. The tree, the good thing about the tree is that it is not susceptible to disease or insects. The tree does well in, again, our tropical climate. It doesn't survive much past the Sarasota area because of the weather. It needs sandy soil to survive, so Page 12 January 27, 2000 the tree cannot be invasive in the wetlands here in Florida or the Everglades. It cannot survive in standing water. So, it's not invasive to the Everglades. The trees can be used as a regular height tree or they can be hedged, which is what is done in Collier County quite a bit, the trees are hedged to form a nice row. The trees are grown from seeds, but air-layering and veneer grafting is the most successful way to reproduce trees. Now, we've been in the home a year and a half. We have two of them on our property. We've never experienced the growth of another one on our property, and we maintain our own property. We do all our own landscaping and mowing and everything, so we are out in the grass every week, and we know what's out there. According to a well-known tree company here in Naples, and the company that I went through was Davey Lawn Service, and they're well-known not only here in Naples, but throughout the whole country, and Phil Buck was the tree expert that came and looked at our property, he is telling me that the trees are abundant in the Lely-Hibiscus area. The trees are also located on Horseshoe Drive directly across from the Collier County Development Center. There's approximately 30 to 40 trees that line Horseshoe Drive that are java plums. They pose no threat to humans, unlike the melaleuca. I'm a Girl Scout leader, and my daughter and I have spent numerous hours out at Koreshan State Park removing melaleuca trees for the county's environmental protection. So, they are not a health to humans. Also, unlike the Brazilian pepper, the Australian pine, they are not a predominant nuisance. The java plum was placed on the exotic listing for Collier County in 1991. However, the County has not been actively pursuing a mass removal of trees. The java plum, again, currently exists on developed and undeveloped property in Naples. I made some telephone calls to area counties, it is not on the exotic list for Lee County, Hillsborough, Sarasota and Dade. Each of these counties are free to mold their own exotic listings. There are some communities that list the java plum, but Page 13 January 27, 2000 as a county, it is not on the exotic list. As birds do fly, as Ms. Sulecki mentioned, that's the reason these trees have become invasive is because birds fly and drop the seeds. Why, I have a feeling birds do fly from Lee County to Naples, so what's to say if I remove these two trees, that a bird isn't going to fly into my yard and plant a java plum. So, it's kind of hard to do an eradication program when you have surrounding counties that still maintain the trees. The inspector who was at our job site was there, and I think one of the gentlemen here questioned that, we have a -- can I show this exhibit? MS. RAWSON: Uh-huh. MS. HORBAL: What I brought today is some pictures so you-all can see our property and what I'm talking about. I don't know, can you see from there? In the front of our property, and I think it's at the bottom of the display, Dale, hold it up a little bit higher. He's a good right-hand man. At the bottom of the display, we have a main sewer lift station for Longshore Lakes in our front yard. Unbeknownst to us when we bought the property, we were led to believe that it was the irrigation system for Longshore Lake, not the sewer system for Longshore Lake. So, that is at the front of our property, and when the inspector was at our job site, he had to come out several times because he was concerned about the water flow over the grates, and he was there, as I said, several times. We did not pass our landscaping inspection because of that, and we had to reroute the way the water would drain. Even though we are on a totally flat piece of property, they were concerned about the water flow over the grates. So, we had to reroute our landscaping so that if, in fact, water came, it would be routed, and I don't know if you can see the rocks -- is there a picture of the rocks there, Dale? I'm not sure if it shows up in one of them. We had to dig a trench, actually. The trench is about -- maybe nine or ten inches deep and fill it with large white rocks -- CHAIRMAN FLEGAL: Ms. Horbal, may I just interrupt? It's a Page 14 January 27, 2000 very interesting story. Let's -- can we get back to the two trees, because that's really all this board is interested in, the two trees. MS. HORBAL: Well, what had happened, as I said, the inspector was on our site at least a half a dozen times. It's pretty hard to overlook two 50 foot java plum trees. So, it wasn't as if he was only on the property one time. I also brought a copy of the survey with me. The survey indicates that these trees always were on our property and still are on our property. There was no misunderstanding on the part of the surveyor that these trees were, in fact, on our property, and we cleared that with the contractor before we even started building, because we told them we did not want to buy the property if the trees were not ours. So that was a clear-cut decision prior to our even assuming the building. I've also asked for an estimate, and I think that's in your packet there. An estimate to remove the trees is going to be about $1,800. It's going to cost us more to have the trees trimmed and maintained, but we're willing to do that because we believe these trees are an asset. They are not a detriment. The traffic on Valewood Drive, as you can see from my chart here, is about 7,300 cars a day on Valewood Drive. Those trees provide a buffer to the traffic sounds to our home. Our neighbors on either side who live in two story homes say that the traffic is -- sounds are so horrendous they can't even open their windows. We don't have that problem at our house because of the trees. They also provide shade. I have copies of electric bills where our bills are at least $100 less than our neighbors because of the trees, and we both live the exact same way, with our windows closed and our air conditioning running all the time. We would like to keep the trees. In view of what's happening here in Collier County, that every square inch of green space will soon become concrete, I don't think these trees are a threat to our environmental overview of Collier County, and in light of the fact that there are thousands of these trees already in existence in Collier County, my husband and I are requesting that these trees remain on our property. CHAIRMAN FLEGAL: Let me tell you what the purpose of Page 15 January 27, 2000 this board is so that -- I understand what you're saying, but unfortunately you're in the wrong place. This board is here to make determinations when a violation of an ordinance comes before us. There are many ordinances. If somebody violates it and code enforcement and the violator can't work out the system, they then bring it before us, and we make a decision first, is there, in fact, a violation. If there is, then we are going to give you a method to cure it, and if not, possibly fine you. We don't have the power to do anything more than that. If you want something removed from the exotics list, you need to talk to the board of county commissioners. They have the power to do that. This board does not. All we do is kind of judge that there is a violation. If so, what we recommend to get it cured. Beyond that, we don't have any power. So, I understand your question, but we can't help you. In the vein that you say you want to keep the trees, we don't have the power to do that. MS. HORBAL: Well, I have a copy of the site development plan for Longshore Lakes that the builder followed to the T in building our home. This is dated November 25th, 1996, there have been no revisions or updates. This is still the current list that any builder building in Longshore Lakes is using. Nowhere on this list does it show the java plum as being a tree that has to be removed. So, he was in his full rights leaving the tree on the property, and I can pass this around, if you-all would like to see it. CHAIRMAN FLEGAL: Well, there's a county ordinance that says the java plum is an exotic and needs to be removed. MS. HORBAL: I appreciate that, but according to Longshore, the tree was not a nuisance, and -- MR. HORBAL: Why is it not on this list then if it's -- CHAIRMAN FLEGAL: We haven't sworn you in yet, sir. Just a minute. MS. ARNOLD: Can I speak -- can I speak to that? There is a planned unit development document that the PUD was developed and the guidelines that addresses the overall exotics and overall land development regulations that development has to follow. Page 16 January 27, 2000 The site development plan is something that's developed after the PUD document. The PUD document says that the exotics removals shall be in accordance with the County's codes, and so very often planned unit developments refer back to the land development code, and that's what this particular planned unit development did, and so we then would have to look at that section that was cited in your notice of violation to determine what the regulations would be, and that's where we are right now, The language indicates that java plums are on that list, and they were on there since '91, and that they have to be removed at the time of C.O. In this case, unfortunately, it was not, but they have to -- if they were to regrow, they would have to be removed again, so -- MS. HORBAL: In response to that, I also have a copy of the memorandum from the transition committee to Mr. Hardy (phonetic) when -- because I had to do all this research on my own. Like I said, I was not given any of this information at all. That is how -- by doing my own research, is how I found out that, in fact, these trees or that all this came about because of the transition from Longshore, and I have a copy of what we were asking Mr. Hardy to remove from Longshore, and I also have a copy of the map, which was highlighted, that shows that the only areas that they were requesting removal from were the common areas at Longshore, and it states in this letter to Mr. Hardy that they were -- along the eastern boundary of Longshore Lake, there are many areas where Brazilian pepper trees encroach over the Longshore Lake property line. These need to be removed. Along the western boundary, there are several places where the pepper trees are growing. These need to be removed. Nowhere in this letter to Mr. Hardy or on the map does it refer to java plums or my property. MS. ARNOLD: Is that a letter from the County to Mr. Hardy or is that from the association? MS. HORBAL: This is from our association. MS. ARNOLD: So, that is an agreement that you would have with the developer, and that doesn't involve the County. That's Page 17 January 27, 2000 two different entities. MS. HORBAL: But I'm just saying, this is what we were looking for from Mr. Hardy. This is the information that he was given, you know. Obviously, I don't know what the County restrictions were with him or what the County requested from him. We purchased this home because of these two trees. We didn't purchase it because the sewer station is sitting in our front yard. The sewer station is an issue in this because once those trees come down, our property is basically useless, nobody will ever buy our home based on the sewer in our front yard. It smells. We have constant cockroaches. I have to take care of the sewer. I have to call to have them paint it. I have to call to have it cleaned up. I have to call when they have to put a filter in it. That's what we have in our front yard. If the two java plums are taken out of the backyard, there's nothing left, there's nothing left to our property. The reason we bought the home were for the java plums. They are not a detriment, and if the County can justify having trees, having java plums in the county, what does two more trees make a difference? Two more trees does not make a difference, and it was the County's mistake, not our mistake, not our developer's mistake. It was the County's mistake, and that's why we are here today. MS. TAYLOR: to get you -- MS. HORBAL: MS. TAYLOR: understand that. MS. HORBAL: MS. TAYLOR: the list, and we cannot change this. We cannot say, okay, you can have your trees. We can't do that. It's a violation, and we have to act on that. MS. HORBAL: And I can't be granted a variance? CHAIRMAN FLEGAL: Not from us. Mrs. Horbal, first of all, the County is not out I understand that. -- in any way, shape or form. You must I do. They're doing their job, and these trees are on Page18 January 27, 2000 MS. TAYLOR: Not from us. CHAIRMAN FLEGAL: That's what I told you in the beginning, all we can do is, a violation is brought forward, we determine that, in fact, it exists. If it exists, we are going to give you a remedy to correct it. You may not like the remedy, but it's going to be a remedy. Your only other choice is to go before the board of county commissioners and try to get them removed from the list or get a variance. That's not what you do here. MS. HORBAL: Okay. MS. SAUNDERS.' But we do have the ability to give a remedy, and the remedy may be something other than removing the trees. The remedy could be a five year extension while they promise to maintain the trees and take it before the county commission or something like that. MS. ARNOLD: Well, there is no variance proceedings for cases like this, so -- CHAIRMAN FLEGAL: That doesn't exist here. MR. PONTE: But there is no -- MS. SAUNDERS: Mr. Rawson, is there any other remedy than removing the trees? MS. RAWSON: Not by this board. CHAIRMAN FLEGAL: Correct. MS. SAUNDERS: So, we must find not -- a not -- no find a not violation or we must have them remove the trees? we give them three years to remove the trees? PONTE: The time frame would be in control of the Can MR. board. MS. SAUNDERS.' So, can we control -- MS. RAWSON: The time frame is within control of the board. You have, as Mr. Flegal has properly pointed out, you're not the Supreme Court, and you have very limited powers. Your powers are, is there a violation of the county ordinance as it currently exists, and if so, if you find there is one, then you have to fashion a remedy for it to be corrected. MS. SAUNDERS.' And the factors within that remedy are the amount of the fine basically. Page19 January 27, 2000 MS. RAWSON: Right. MS. SAUNDERS: And the time frame in which to comply. MS. RAWSON: Right. Start with the time frame. MS. SAUNDERS: Time frame. MS. RAWSON: But you can't grant variances, and I don't even know if the county commissioners grant variances. MS. ARNOLD: No, they wouldn't in this case. CHAIRMAN FLEGAL: They could get it removed from the list. MS. RAWSON: In this case. MR. PONTE: Ms. Rawson, is it within the find that there is a violation and not fine? -- can the board MS. RAWSON: What you need to do is find whether there's a violation first, and then the second step is to give them time, a reasonable amount of time to remove the violation so that they are in compliance, and then if they don't comply within that reasonable time, fines will be assessed. I mean, that's your duty under the ordinance that, you know, had you appointed as code enforcement board. I might add, I echo what Ms. Taylor said, the County is not out to get you. You have done a Herculean effort here, and you're very articulate, and I'm really impressed with all of the research that you've done, and you've presented a very good case. Think about law school, but you have to also understand that they only have very, very limited powers, not that they are not sympathetic with you, but they can only do what they're allowed to do under the law. MS. DUSEK: Ms. Rawson. CHAIRMAN FLEGAL: The board must -- the board must remember hearing a few of my board members say something. Whatever the remedy is, you tread on very thin ice in setting precedents for other things, and we have been down this road. I think while I may feel sorry for the Horbals, I am not prone to make some gigantic exception because I'm looking forward to the next case when somebody comes in and says, well, gee, you did it for them, why won't you do it for me, whether it's this tree or a garage in the wrong place or whatever, we have to be Page 20 January 27, 2000 reasonable, and reason to me is not giving somebody some exorbitant amount of time to solve a problem. The problem is there. It's unfortunate. There are probably some other remedies they can take. If I was them, I don't know, I'd seek some legal advice, but we need to stick with being -- finding is there a violation and giving some reasonable time to correct it. MR. HORBAL: What responsibility does the County have for -- I mean, for a mistake. MS. HORBAL: One of the questions that we have is, since our contractor did what he was supposed to do and the County or the inspector made an error, is -- what responsibility is the County going to take for this? CHAIRMAN FLEGAL: That's a question this board can't help you with. That's not in our purview to deal with. You need to go to another place. MS. HORBAL: Is that the board of commissioners also? CHAIRMAN FLEGAL: I'd start with asking the acting county administrator, to, you know, write him a letter and ask the question or write your particular county commissioner in your -- let's see, Longshore Lakes is -- MS. HORBAL: Barbara Berry. CHAIRMAN FLEGAL: -- Barbara Berry. MS. RAWSON: Barbara Berry. MS. HORBAL: I've already contacted her. CHAIRMAN FLEGAL: Okay. Talk with Ms. Berry, see if she can help you. It's not something we can do. I read your questions in your defense packet, and we can't help you with any of those. That's not in our purview. Our main purpose is one thing, did you violate an ordinance, period. If you did, and we find that you did, then we're going to say you have "X' amount of time to correct it. If you don't, we're That's our limit. Beyond that, we can't do going to fine you. anything for you. MS. HORBAL: Cheryl Horbal? CHAIRMAN FLEGAL: Even though -- even though it wasn't Dale and The ordinance says java plums must Page 21 January 27, 2000 be removed, period. If you have java plums, and we haven't decided that yet, and haven't removed them, then you're violating an ordinance, period. It may sound cold and crass, I'm sorry, but you have to understand where we're coming from. That's our limit. Beyond that, we can't help you. MR. PONTE: Ms. Horbal, you've made a very compelling argument, and you have, without question, the sympathy of the board in this matter, I'm sure. However, the cold fact is, in reading from the ordinance about the vegetation, about the plum, says the removal of prohibited exotic vegetation shall be required in perpetuity. So, if the developer made the error -- you certainly haven't made the error. It's just that the plum trees are in violation really is what we're saying, but the problem, I guess, is yours is what we're saying. So I would like to suggest that -- CHAIRMAN FLEGAL: And you did say what if the birds, you know, replant the trees --. MR. PONTE: That's right. CHAIRMAN FLEGAL: -- you're going to be in the same spot, unfortunately. If somebody sees them, a new one growing, they are going to come to you and say remove them, and you're going to say, but I didn't plant -- I mean, do you understand? MS. HORBAL: I do. CHAIRMAN FLEGAL: It's unfortunate but -- MS. HORBAL: And really, if these trees -- if we were talking about trees that were 10 or 15 feet tall, it wouldn't even be an issue. CHAIRMAN FLEGAL: They sound beautiful, and we understand, but from this board's standpoint, we are very, very limited and controlled in what we can do, and we can't go outside that. MS. DUSEK: Ms. Rawson, I have a question to you. MS. RAWSON: Yes. MS. DUSEK: Is there ever a time when the homeowner and the County can be responsible together for the cost? I mean, is that a possibility in our recommendation, I don't know, because the -- Page 22 January 27, 2000 CHAIRMAN FLEGAL: No. We can't ask the County to pay for anything. That's not our-- MS. RAWSON: When we ask the County to pay for things, we usually assess the cost back to the landowner. MS. DUSEK: The only reason I was asking that is because, obviously, I'm sympathetic to what she's saying. It is a fact that there was a mistake made when the C.O. was given. I wouldn't ask that question if the mistake hadn't been by the County to begin with. So, I don't know whether we can legally do anything like that or not. MS. RAWSON: Unfortunately, because of the way the statute and the ordinance is written, you know, we have to go after the owner of record, and this is not the first case in which it is not the owner of record who created the violation that exists. As a matter of fact, we've had lots of cases where it's been there when they bought the property, but you take it subject to that. This is similar, and if the birds bring them back, it's still not their fault, but it's their property. So you have no other alternative, unfortunately for the Horbals, but to look to the landowner. MS. DUSEK: Okay. MS. GODFREY: I would like to ask a question. Ms. Horbal, when you bought the property, did you know that there was a lift station in front of your home? MS. HORBAL: No. MS. GODFREY: What did the builder tell you? MS. HORBAL: They led us to believe it was the main water station for Longshore for the irrigation, because we irrigate our own property in Longshore. MS. GODFREY: Okay. And the java plums, you informed them that you would not buy the property if they were not on your property? MS. HORBAL: Right. That was the only reason for buying the property, because it basically doesn't have any other redeeming value. MS. GODFREY: Okay. Do you think maybe you're looking at the wrong people to blame for -- Page 23 January 27, 2000 MS. HORBAL: Well, no, and no, I don't want to blame anybody. I mean-- MS. GODFREY: But I'm saying, I've lived in a gated community, and a lot of the builders, the inspectors would come out, oh, that's not part of their property, oh, you don't have to worry about that. As soon as the C.O. was issued -- you know, do you understand where I'm going to? MS. HORBAL: No, I don't. MS. GODFREY: Well, a lot of times the builder will tell the C.O. -- get the C.O. because -- CHAIRMAN FLEGAL: They want to sell the property. MS. GODFREY: -- they want to sell the property and inform the inspector that no, those trees aren't on their property, you don't have to worry about that. MS. HORBAL: I don't think that that's the case at all, and the survey clearly shows -- MS. GODFREY: You were misinformed about the lift station. He misinformed you about the lift station. CHAIRMAN FLEGAL: I mean, the list has been in effect since 1991. MS. GODFREY: Right, so he had to know. CHAIRMAN FLEGAL: I mean, I'm hard-pressed to say this developer is standing there saying I'm stupid, and I don't know there's a list of exotics. I mean, I'm sorry. I have a hard time viewing that. MS. HORBAL: Oh, no, this contractor knew that these trees were on the exotic list because they're based out of Tampa, and their office is in Fort Myers, and he does a lot of work in Gateway, and the java plums are not permitted in Gateway. So, he was well aware of that, but -- CHAIRMAN FLEGAL: And he just didn't pass that information on? MS. HORBAL: No, he was following the guidelines from the site development plan for Collier County -- or for Longshore Lakes. MS. GODFREY: But not the County. CHAIRMAN FLEGAL: But not -- yeah. I mean -- Page 24 January 27, 2000 MS. HORBAL: Well, I think-- CHAIRMAN FLEGAL: -- Longshore Lakes and the County, and the county ordinances apply, so he more or less overlooked the county ordinances to sell property. MS. HORBAL: Well, I guess he assumed that the inspector would do his ]ob and tell him whether or not he was -- MS. GODFREY: He probably asked knowing how -- he probably asked, are those two on the property. There was no marker. No, don't worry about it. It's not on their property, gave the C.O. MS. HORBAL: Well, the property was surveyed and marked, and when the inspector comes out, does he have access to a survey, do you know? MS. SAUNDERS: Not unless they are marked. They are so busy that they just -- CHAIRMAN FLEGAL: That's a question we couldn't answer you, MS. HORBAL: The property was marked, because it was surveyed, and it was marked, and everybody -- I mean, it was common knowledge that that was part of our property. MS. TAYLOR: Are you pursuing this lift station problem as much as you're pursuing this tree problem? MS. HORBAL: Yes, ma'am. I've already-- I've been in contact with the environmental protection agents. Barbara Berry and I have been on the phone numerous times. MR. PONTE: With all due respect, I think we're getting far afield. CHAIRMAN FLEGAL.' Let's get back to our trees. MS. HORBAL: That's a whole different subject. CHAIRMAN FLEGAL: I'm really not interested in the lift station. MS. HORBAL: But yes, I am. CHAIRMAN FLEGAL: Any other questions for the Horbals regarding the two plum trees or would you like to say anything else, ma'am? MS. HORBAL: I would, please. In my packet, I also included an addendum at the very end Page 25 January 27, 2000 about Florel, which is a chemical that is available to abort the fruit on the java plum tree. This chemical is labeled for Florida, and Davey Tree Service is using it in the mid section of Florida with success, and they are willing to obtain a specimen of a java plum tree, test the java plum, make sure that it would work properly on that if it could be approved that we could keep the trees if we would spray them once a year to prevent the trees (sic) from falling. CHAIRMAN FLEGAL: Again, you're at the wrong place for that. MS. HORBAL: I'm at the wrong place. CHAIRMAN FLEGAL: I think you need to give that information to Ms. Berry and see if she can't do something from the board of commissioners' side to go in that direction and maybe get them off the list, but unfortunately we can't help you other than be sympathetic. MS. HORBAL: Okay. Well, in lieu of that, can I ask for a delay in the decision then so that I have time to contact the Collier County Board of Commissioners and set up a hearing with them? I don't know how long -- CHAIRMAN FLEGAL: As I remember, now that we've heard the case, we are back to our old position of we must make some kind of decision. MS. RAWSON: I think that's true. Sometimes we continue cases that we don't have all the evidence on, but I think you are probably ready to close the public portion. MR. PONTE: Can you close the public portion and then continue the finding portion of it to another time, until such time as the county commissioners have, at least, responded or given proper direction as to where Ms. Horbal might go and take this very compelling argument? CHAIRMAN FLEGAL: Let me throw this on the table, because I think we've done this before on other things. If we find that there, in fact, is a violation and our order would be that we give the Horbals something similar to a four or six month period to resolve the problem, which -- and then if it's not done, let's say, in four to six months, a fine would be in place Page 26 January 27, 2000 of X. Now, as we get closer to that four to six month period, before the fine kicks in, if they were to come back to the board and ask us to amend the order to extend the time, could we do that? MS. RAWSON: You could certainly have them -- it would be up to them. What you need to do is close out your case today, make a finding, give them a reasonable time to comply or the fines kick in. That's up to you what that time is. Then in the interim, if there are changes in the situation, then it would be incumbent upon the Horbals to contact Ms. Arnold and ask to be placed back on the agenda rather than having them notice the Horbals, but certainly you can do that, and there are other respondents who've asked to be placed on the agenda or taken off. CHAIRMAN FLEGAL: So, it is within our power to take the order and amend it should we -- should they need additional time providing they go through the proper channels to get back on the agenda and ask us to amend our order -- MS. RAWSON: You can amend -- CHAIRMAN FLEGAL: -- for whatever -- with good reason. MS. RAWSON: We've amended orders before, and we've reduced fines before. So those both are within your power. CHAIRMAN FLEGAL: We just -- everyone has to remember, we can't increase fines, but we can reduce them. MS. DUSEK: Mr. Chairman. CHAIRMAN FLEGAL: Yes, ma'am. MS. DUSEK: With all due respect to the Horbals, I'd like to make a motion in the case of CEB Number 99-069, Board of County Commissioners versus Dale and Cheryl Horbal, that a violation does exist. This violation is of Section 3.9.6.6.6 of Ordinance Number 91-102 as amended, the Collier County land development code. CHAIRMAN FLEGAL: We have a motion before us. Is there a second that a violation, in fact, does exist? MS. TAYLOR: I'll second that. MR. PONTE: Reluctantly. Page 27 January '27, 2000 CHAIRMAN FLEGAL: We have a motion and a second. Any question on the violation? Hearing none, all those in favor that a violation does exist, signify by saying aye. Any opposed? MR. PHILLIPS: No. CHAIRMAN FLEGAL: We have six ayes and one no. Now, as to the order of the board as to the remedy to correct the violation. Ms. Horbal, you may sit down. You don't have to stand there, ma'am. MR. PONTE: Can we discuss this? CHAIRMAN FLEGAL: Yes, we can discuss it. I'm just saying, we're at that stage now where we need to -- MR. PONTE: I'd like to really give this as much time as we possibly can knowing that -- and I'm saying six months. If we issue an order that doesn't kick in for six months, let's say, which should give the Horbals time to try and find the right levers to push and pull on this problem, and to put in a fine simply to protect the board in putting itself in a position for future cases where we might want to do something in the same vein but don't want to be forced into by a compelling argument like we just had. So, the fine should have some teeth in it, but really, the fining is there to protect future actions of the board rather than to compel the Horbals to feel any guilt for these trees. So, it ought to be a very lenient fine. MS. DUSEK: Do you want to put that in a motion? CHAIRMAN FLEGAL: Well, let's see if anyone else has anything to recommend. MS. SAUNDERS: I agree with you completely, George. I'd like it to be even longer. I believe they can lead the charge to get -- I think it is a clear injustice, and I think they are going to need some time and effort to get that remedied. If we don't have the power to do it, I'd like to give them just as much time as legally we are entitled to do that, and I think a year, at least, is certainly rational, at which point it comes back before us, and we do something, and if our county commissioners can't do anything by then, well, they can re-elect some other people. Page 28 January 27, 2000 MR. PONTE: The only thing -- the only thing I would say about that is the year is fine. However, a shorter length of time would require the Horbals to return here, let us know what is being done. It's easy to go away, take a trip and the problem has gone away but the trees have not, and so I think there has to be a shorter time just to -- MS. DUSEK: I would agree -- MR. PONTE: -- get a progress report. MS. DUSEK: -- to a shorter time, because they can always come back. CHAIRMAN FLEGAL: I mean, they are working, obviously, very diligently to try and resolve the problems themselves, and I would hate to see the board in a position of giving some lengthy period of time -- we all get busy doing other things. Other people get busy doing other things -- without the pressure of knowing that right around the corner I stand to be fined X unless something gets accomplished. This gives them a lever to place on whoever they are trying to get to assist them, whether it's Commissioner Berry or an attorney or whomever. I tend to believe when you put dates way out there, unfortunately past history has proven that people tend to, oh, I've got time to think about that, and the next thing you know, this time has disappeared, and it's now, gee, I have to do something tomorrow, and it's not going to happen. MS. TAYLOR: Mr. Chairman. MS. ARNOLD: Can I just add, I'd just like to remind the board that you do have the ability to reduce fines and -- CHAIRMAN FLEGAL: I understand that. That's not a problem with me. MS. ARNOLD: -- and if the time is an element and we see that the Horbals are making every effort they can to resolve or receive relief from, whether it's the courts or the board or whatever, we can surely make a recommendation to modify those fines once the resolution has been made. MS. TAYLOR: Mr. Chairman. CHAIRMAN FLEGAL: Yes, ma'am. MS. TAYLOR: I would like to make a motion that the board Page 29 January 27, 2000 order the Horbals to remove the two java plum trees within 90 days or a fine of $50 be imposed for every day the violation continues to exist, and in 90 days, you can get something accomplished with the commission, et cetera, et cetera, et cetera. MR. PONTE: In my view, that is much too harsh, extremely harsh, and knowing the speed with which government works, 90 days, in my mind, is not a realistic framework, and that the time we should be looking at is six months, and if there is a fine, I don't know what the precedent is, but a fine, perhaps, should be established not on a per diem basis but on a monthly basis or some such thing just to mitigate and lessen this penalty. MS. SAUNDERS: Again, I -- MR. PONTE: And also, to provide -- still provide the impetus for going ahead and finding the proper lever to get this problem solved. I mean, it seems to me that it would be -- it's going to take time, but if you put the effort into it -- you've developed your compelling case. If you put the effort into it and find the right channel, the problem will be solved. MS. TAYLOR: Then you think the 180 days is more appropriate? MR. PONTE: I'm sorry? MS. TAYLOR: You think 180 days is more appropriate, six months? MR. PONTE: Yes. MS. TAYLOR: All right. I'll amend -- I'll amend the motion then to 180 days. MS. SAUNDERS: Would you also consider amending the fine? I think something like maybe $500 per month is somewhat reasonable, but I think $50 a day is -- $1,500 a month for trees that were there to start with, it just doesn't -- MS. TAYLOR: We can reduce that if it comes to it, but we've got to set -- we've been through this before. MS. RAWSON: I'm not recommending a dollar a day. MS. TAYLOR: Well, I'm opposed to that. CHAIRMAN FLEGAL: I think it's -- let's put it this way, if the Horbals, in pursuing something, find that -- and they'll know as Page 30 January 27, 2000 they pursue, that it just isn't going to happen, I mean, you know that as you pursue something, then I think they are the kind of people that are going to understand they're going to have to take the trees down. She's already said it's going to cost $1,800 to take them down. If I'm faced with a fine that's going to cost me $1,500 a month, and I know I'm hitting a brick wall, I'd spend another $300 and get rid of the trees and live with it, because I sure don't want to spend $1,500 a month for ten months and say, oh, I'm still fighting the trees, but yet it's costing me a lot of money, and I've lost anyway. I mean, at some point, common sense kicks in, so I don't have a problem. They can come back and ask the County to be put on the agenda again, and we can extend the time. If it gets to the fine stage, they can come and ask for us to reduce the fine. We've done all that before. I think we need to give them another weapon. They've got some. I think another one is in their favor, and the other one is, they're about to get slapped with a healthy fine unless somebody gets some action going. I think with that in their hand, they're more likely to get somebody to help them rather than just go and say, well, we've got a year before we have to do anything. Again, we need to help them. The best help I think we can give them is, unfortunately, put their back up against the wall, and when we do that, they've now got a little incentive to go before somebody and use as a big stick saying look, I need help or else. MS. DUSEK: Mr. Chairman. MR. PONTE: I think that's a very good idea, because I think it will get attention. I mean, it looks painful, but I think it might help a lot. MS. RAWSON: If I can just say one thing, somebody mentioned a monthly fine, Florida Statutes 162.09 really provides that it needs to be a fine for each day the violation continues. MS. DUSEK: Mr. Chairman. CHAIRMAN FLEGAL: Yes, ma'am. MS. DUSEK: I would like to second Diane's motion, but I'd also like to, with my second, say to the Horbals that we Page 31 January 27, 2000 understand this was not your fault. We do know that it is your problem today, and with the way you've presented yourself, I don't think we're ever going to have to worry about this violation that we are going to impose upon you. You are very responsible people. So, with that, I second Diane's motion. CHAIRMAN FLEGAL: We have a motion and a second that it's 180 days, and if not completed, resolved by some method, then a fine of $50 a day starts kicking in. Any question on the motion? All those in favor of the motion, signify by saying aye. Any opposed? MR. PHILLIPS: Nay. CHAIRMAN FLEGAL: Six to one. Mr. and Mrs. Horbal, do you understand? We've given you six months from today to get the problem resolved or if it's not, $50 a day is what you will be fined automatically, and all this will be -- you'll get a copy of this. It will be recorded, and if the fine kicks in, this will be a lien on your property, so whether you get the County to remove it from the list, whether you get a variance, whatever, then once that occurs, you need to notify the County that you've resolved the issue, okay, and as you go along, please keep in mind that if it looks like it's heading down some road and the time is getting short, you want to come to the County and ask to be brought before us again to possibly ask for an extension, okay. Very good, thank you. Let's take a five minute recess, if you don't mind, please. (Small break was held). MR. LEHMANN: Mr. Chairman, if you'd let the record show that I've joined the board again. CHAIRMAN FLEGAL: Very good. Since you've rejoined, from this point on, Mr. Phillips will not vote. He may participate by asking questions, but he may not vote at this time. MS. CRUZ: The next case is George Dublino and John Di Marco, Case Number CEB-99-072. If I may remind the board, this case was brought before this Page 32 January 27, 2000 board on December 23rd, 1999, and the board agreed to continue this case until today's date upon the respondent's request. MR. DUBLINO: My name is George Dublino. CHAIRMAN FLEGAL: If you'd just hold on a minute, sir. MS. CRUZ: We prepared a composite exhibit and also we have a composite exhibit from the respondent that we would like to add -- enter into evidence at this time if there's no objection from the respondent. CHAIRMAN FLEGAL: Sir, on the County's package, I'm sure you've seen, it's -- you were given a stack of papers. Do you have any objection to them submitting that to us along with the package you submitted? MR. DUBLINO: No. CHAIRMAN FLEGAL: Thank you very much. You can be seated until we get to you. You just don't have to stand there. If you'd like to be seated, we'll call you, sir. You can sit right there in the front. Thank you. There's no objections, so both packets may be entered. MS. CRUZ: Mr. Chairman, I also have a correction on this packet. On Page 2, Item 4 addresses the name and address of the person/owner or person in charge of location where the violation exists. Let the record show that the owner of record is George Dublino and not John Di Marco. It is my understanding that John Di Marco is a tenant, and correct me if I'm wrong. MR. DUBLINO: You're wrong. You're being corrected. MS. CRUZ: May I ask the position of Mr. Di Marco with this property? MR. DI MARCO: Family. CHAIRMAN FLEGAL: That's fine. You're not an owner of the property, sir? MR. DI MARCO: Yeah, I am an owner of the property. He's the financier and I'm the owner. MS. CRUZ: The warranty deed on the packet provided to the board on Page 27 reflects George Dublino as owner of the property, only George Dublino. MR. DUBLINO: Could I comment on this? CHAIRMAN FLEGAL: Yes, sir, and just a moment, and would Page 33 January 27, 2000 you swear them in, please? MR. DUBLINO: MS. ARNOLD: please? MR. DUBLINO: (The speakers were sworn). What has taken place here is Mr. Di Marco -- Can you note your name for the record, My name is George Dublino. Anyway, Mr. Di Marco's vision is impaired, and he was not capable of getting a loan for this property, so I signed for the loan. The mistake that was made that I see or appears to be made, that his name was not put on the deed at the time. This is not rental property. I have no money invested in it. I don't pay the mortgage. I don't pay the insurance. It's basically his property, but I'm kind of-- I'm like the bank but I'm not the bank, okay. I'm guaranteeing this loan. MS. SAUNDERS: But, sir, according to the county records, then what you probably need to do is correct the warranty deed. MR. DUBLINO: This is what I'm -- this is what I was going to do is have a new deed made up and have it recorded because now, when I go to get a permit, I'm not allowed to have a permit because I don't live there. He's not allowed to get a permit because he's not on record. This is what -- the paperwork that we are involved in -- I understand everything that you're telling me, but I have to go one step at a time. CHAIRMAN FLEGAL I understand. MR. DUBLINO: We will do what we have to do. CHAIRMAN FLEGAL: Okay. Thank you for clearing that up. For right now, we are going to consider the deed we have, which is you, and now that you've told us that, we'll factor that in, okay? You can sit down if you would, please. MS. CRUZ: The alleged violation brought before this board, it's a violation of Section 2.7.6, Paragraphs I and 5 of the land development code 91-102, and also Section 104.1.1 of the ordinance 98-76, the Collier County building construction administrative code. The violation is described as an improvement of an attic area to include enclosure of bottom level, included electric, addition of an exterior doorway and stairways without first obtaining the Collier County building permits. Page 34 January 27, 2000 The violation exists at 2978 Poplar Street, Naples, Florida, and is more particularly described as Demere Landing, Lot 32. The violation was first observed on December 8, 1998. First notice of violation was given on July 30th, 1999 requesting for compliance by August 10th, 1999, and the last reinspection was conducted January 26th, the year 2000, revealing the violation remaining at this time. If I may add, both notices of hearing was served via certified mail, which was returned unclaimed, but we also personally served it and posted it at the Collier County courthouse. At this time, I'll have Investigator Kelly define his findings during this investigation. MR. KELLY: Good morning. I'm John Kelly, Collier County code enforcement investigator. (Mr. Kelly was sworn}. MR. KELLY: I beg your pardon, due to the length of this case, I need to pretty much testify from my notes, otherwise I'll leave something out here I'm certain. I would just like to note that the basis of the case is a finished attic area with plumbing and a lower level that has been enclosed and made into a -- converted into living area; no permits known to exist for either of those conversions. My initial investigation was performed on December 8, 1999 when I received the case as a result of an anonymous complaint that alleged house for sale, bottom part built out and rented, not to code, no permits. The investigation revealed what appeared to be a three level stilt home with the ground level, a center living area and an upper attic area. I knocked at all doors at the residence, which were a total of four, one to the entrance to the lower level area, two on the main floor and also the attic area, receiving no response, and I left a calling card on what appeared to be the primary entrance. While knocking on the doors, I observed the bed within the enclosed portion of the ground floor as well as air conditioning. I proceeded to obtain a property card from the tax collector's office or rather the property appraiser's office, and no permits were evidenced for the enclosure on the ground floor. Page 35 January 27, 2000 Additionally, as the area in question was below flood level, it's doubtful that a permit ever was obtained. Photos were taken at that time. I should also note that on the first level or rather the first visit, the attic was not an issue. It was not a part of the complaint. That came later, and I'll get to that. On January 6th, 1999, I spoke with John Di Marco by telephone. He stated he was the owner of the property. He stated that the ground floor enclosure was present when the property was purchased. Additionally, he stated, as the walls were load bearing walls, he believed them to be a part of the original construction. He advised that all electric was four foot off the ground with the possible exception of two plugs for appliances outside of the enclosed area. On January 8, '99, I obtained a copy of the building permit application, Number 76-324, which was the original permit, which stated a two story framed building. No other permits were revealed during that record search. On January 11, 1999, myself and code enforcement supervisor, Ed Morad met with Mr. Di Marco at the property. Mr. Di Marco permitted entry to the enclosed portion, which was, again, the lower level at this time, at which time electric and plumbing was observed in addition to the A/C unit. Enclosure appeared to have been made into habitable space as evidenced by rug and furniture as well. I advised Mr. Di Marco that the property card indicated no permits had been obtained, however, he was free to come up with some if he had them in possession, and that the property card indicated that the area in question was, in fact, a screen enclosure type porch. On January 12, 1999, I consulted with both code enforcement supervisor, Ed Morad, and the chief structural inspector, Jerry Ballard. Mr. Ballard advised that the present habitable condition on the ground level enclosure was not permissible without the finished floor elevation being above that of current flood elevation of nine feet. He advised if a permit was to be obtained for use of enclosure as a storage area, that the building materials must be water resistant, vents would need Page 36 January 27, 2000 to be installed for drainage, and they would need to remove the plumbing and air conditioning placed within that portion. I called Mr. Di Marco and advised of the requirements, and he requested a meeting again at that time. On January 14, 1999, a meeting was conducted with Mr. Di Marco in the office. Present was myself, Ed Morad and Jerry Ballard, previously mentioned. At that time, we discussed the methods of abatement. A notice of violation was prepared for mailing to the property owner as Mr. Di Marco was not listed as the property owner at that time and still is not. On February 9, 1999, we received a call from an attorney, Doug Wood, acting on behalf of Mr. Di Marco. He discussed -- we discussed violations that existed and the abatement methods. He asserted compliance with the building code would be met prior to sale of the property. I should mention there's a for sale sign in front of the house. On February 12, 1999, I received additional information from my supervisor, Ed Morad, that he received word from the complainant that there were additional violations, that the structure was -- that the attic level structure had also been converted to living area. So on -- let's see -- without permits, so we pursued that issue from that point. On March 2nd, 1999 a recheck revealed the lower level to be unchanged. No answer was received at the door, and I left a calling card again. On March 3rd, I received a call from Mr. Di Marco who stated all matters must now be dealt with through his attorney. On March 4, 1999, I met with Mr. Di Marco in the office with Supervisor Morad. Mr. Di Marco agreed to allow inspection of the property for the purpose of determining all work done without permits in an effort to assist in bringing the property into compliance. He stated he would call to set that meeting up. On March 17, having received no calls, I went to the location of violation and spoke with Mr. Di Marco. He assured me he would be applying for the permits the following day. Additionally, he advised he was working and already diSconnected the electrical appliances on the ground level. Page 37 January 27, 2000 On March 22nd, a records search revealed no permits -- I'm sorry, a records search revealed that Permit Number 1999031547 had been obtained for repair and replacement of ground floor siding and relocation of toilet in the attic. That permit has -- there were never any inspections conducted on that permit, and it has since expired. Other contacts have been made with another -- let's see, on -- Mr. Di Marco and George Dublino were in to speak with Ed Perico, the chief building official, on -- let's see what date was that -- on January 20, at which time they were seeking guidance as to what permits were actually necessary. Mr. Perico assigned the three chief inspectors for plumbing, electrical and structural to go to his residence and actually ascertain what needed to be done, which resulted in a meeting on January 24 at the site with John Di Marco and George Dublino present; Jerry Ballard, the chief structural inspector; Clyde Ammons, the chief electrical inspector; and Jim Turner, the chief plumbing inspector. It was determined by the inspectors that the lower level could not be permitted as living area as it was below flood. The remedial action suggested was to remove carpeting, cap the plumbing, remove the air conditioning unit and use it only for storage. That's the only way that portion could be permitted, as storage area, or restored to the former screen area. The attic area was not permitable for living area as the ceiling height was too Iow. The remedial action suggested there was to remove the plumbing facilities and cap the plumbing. The inspectors further observed that the placement of the washer, dryer, refrigerator and other appliances outside of the lower level enclosure were in violation as they were all below flood, and the washing machine specifically connected to plumbing, which would need to be capped as well. With the inspectors present, I inquired of Mr. Di Marco and George Dublino if they had further questions and if everything was clear as to what needed to be done. The response was affirmative. And the inspectors advised, as no permits were obtainable, that they could request a courtesy inspection of the County to Page 38 January 27, 2000 ensure that the property was brought into compliance. I advised the respondents at that time that scheduling such a inspection would demonstrate to you-all, the board, a sign of good faith in trying to abate the violations. However, at this time, I've been unable to determine that anything has been done. That would conclude my testimony here. MS. DUSEK: Mr. Kelly, I have a couple of questions for you. Are you saying that he really can't do anything with any permits? What he has to do is restore the bottom floor to either the screen position or for storage? He cannot do anything else but that? MR. KELLY: Correct. MS. DUSEK: And then in the attic, he can't make that living space, so he has to put that back into regular attic space? MR. KELLY: Correct. CHAIRMAN FLEGAL: Any other questions for Mr. Kelly? MR. LEHMANN: Mr. Kelly, on January of last year, you observed bathroom facilities with plumbing and electrical. Do those still exist in the lower level? MR. KELLY: Yes, to my knowledge, they do. I've asked for updates, and nothing has been mentioned that they have been taken out. MR. PONTE: I'm confused a little bit, a couple basic questions. Are permits required to be obtained in order to remove a violation, and then the second part of the question is, is it my understanding that Mr. Di Marco or Mr. Dublino cannot get a permit because his name is not on the deed? MR. KELLY: Okay. I was under the impression that a demolition permit would be necessary. However, the inspectors that went out said no, they were not; it could be done by courtesy inspection. Did you want to speak? MS. ARNOLD: Yeah. The inspectors at the time indicated as a courtesy to the property owner that they would not require a demolition permit, that the work could be done without obtaining a permit and that they would come out and inspect the property after the removal Page 39 January 27, 2000 was done of all the improvements and assure them that what existed was in compliance with the County's codes. MR. PONTE: Okay. Thank you. MS. DUSEK: Mr. Kelly, was that all explained to them? MR. KELLY: Yes. CHAIRMAN FLEGAL: Michelle, I have a question. Permits, based on what Mr. Dublino said in the beginning, is it to be understood in the county that if I own a piece of property and don't live there, I'm not permitted to pull a permit to do work on it? I find that hard to believe, but -- MS. ARNOLD: You are allowed to pull an owner/builder permit if you -- if it's a single family -- or a residence and you reside there, but you're not allowed to pull an owner/builder permit if you're not residing. You have to have a contractor pull that permit for it. MR. LEHMANN: Was there anything in the respondent's way to prevent him from requiring a contractor to pull those permits? MS. ARNOLD: No. MS. SAUNDERS: Michelle, under the recommendation, we're asking -- the staff is suggesting that they correct the violation by obtaining permits for all improvements. MS. ARNOLD: Yeah, that recommendation has to be modified. We've since learned that they cannot obtain permits for those improvements. In fact, they have to remove the improvements and request a courtesy inspection. MR. PONTE: Michelle, I have another question. I hear they can't obtain the permits, and yet one of the things that happened here, Investigator Kelly found that a permit had been issued at one time, so -- MS. ARNOLD: Yeah, the permit had been issued for the exterior siding of the house. It had nothing to do with any of the improvements. MR. PONTE: And the relocation of the toilet in the attic? MS. ARNOLD: Right, and when the inspectors went out -- because people come in and pull permits for certain things. There was no evidence provided to the customer service agent that the ceiling heights weren't in compliance in that attic space Page 40 January 27, 2000 with the County's building code. So, when the inspector went out and saw that, they determined that this wasn't something that would be allowed under the county codes. Unless that information is provided to the customer service agent, they wouldn't know if that exists, that condition exists. MR. LEHMANN: Michelle, by what vehicle did the respondents obtain those permits? If we are having problems with the ownership title, would that not reflect in those particular permits also? MS. ARNOLD: I'm not sure who pulled the permits in that case. MR. KELLY: Mr. Dublino obtained the permits, that permit, listing his residence at that address. However, it's been determined that he has homestead filed on Gulfshore Drive, I believe it is. MS. ARNOLD: So, the information provided on the permit noted that he resided there rather than his Gulfshore address. MR. I,EHMANN: So, those permits were issued incorrectly by the department based on factual information that they received from the respondent -- MS. ARNOLD: Correct, correct. MR. LEHMANN: -- or what they believed to be factual information. MS. ARNOI,D: Correct. MR. PONTE: Based on this information. MR. I. EHMANN: This information, yes, correct. CHAIRMAN FI. EGAL: Any other questions for the County? Thank you, Mr. Kelly. Mr. Dublino, sir. MR. DUBLINO: Can I speak now? CHAIRMAN FLEGAL: Yes, sir. MR. DUBLINO: First thing, about the permit, I didn't pull the permit. Mr. Di Marco went down there and got the permit. It just happened to be they put it in my name. I never went to the County to get a permit, okay. I don't live there. I never said I lived there. The other thing we are talking about here is a courtesy Page 41 January 27, 2000 permit of which they told me you can come down and get a courtesy permit for $20. It's not a courtesy inspection. It's a courtesy permit. Mr. Di Marco went in to get a courtesy -- MR. DI MARCO: Yesterday. MR. DUBLINO: -- yesterday to get a courtesy permit. They said you can't do it. So, now I'm -- the only thing I know to do is to put this property -- another deed and put it in the right -- put it in the names of the way it is supposed to be, and then we can proceed to do what they want to, and I can't do anything without permitting. If I do something without a permit, then I'm in violation again. So, I'm trying. CHAIRMAN FLEGAL: I understand that, sir. I think the board understands it. MR. DUBLINO: All I need is time. MS. SAUNDERS: Excuse me, sir, we just heard that permits are not required; that what you need is a courtesy inspection after you have finished -- MR. DUBLINO: That's what she is saying, but the man told me to go down and get a courtesy permit, and it was $20. MS. ARNOLD: With the courtesy permit, you get an inspection. They have to go back out to your home and inspect the property. MR. DUBLINO: I understand that. CHAIRMAN FLEGAL: But evidently, the problem is, he can't get the permit because he doesn't live there. MR. DUBLINO: Correct. CHAIRMAN FLEGAL: So, getting the deed changed is minor. MS. SAUNDERS: Excuse me, though. Can't you get a courtesy permit and inspection if you reside there? I think I heard that testimony. CHAIRMAN FLEGAL: But Mr. Dublino owns it and doesn't reside there. MS. SAUNDERS: But the owner -- but the person who resides there can get an owner/occupant permit? CHAIRMAN FLEGAL: He's not an owner. Page 42 January 27, 2000 MS. ARNOLD: He's not an owner. MS. SAUNDERS: So, you're saying that the only person who can get the permit is an owner? CHAIRMAN FLEGAL: Is Mr. Dublino. MR. DUBLINO: He is the owner, but -- CHAIRMAN FLEGAL: Mr. Dublino is on -- is the only person on the deed. MS. ARNOLD: I don't believe there would be a problem for Mr. Dublino to obtain what he needs from the County with respect to the inspection. The work needs to be done. He calls the building department. They go out, and they inspect the property to determine whether or not it is in compliance. There is no problem with him doing that. MS. DUSEK: Does he need a permit for that, Michelle? MS. ARNOLD: No. MS. DUSEK: What is the courtesy permit? Is that the same thing? MS. ARNOLD: I've never heard of a courtesy permit. I've only heard of a courtesy inspection. MS. DUSEK: Okay. And so all he has to do is call? MS. ARNOLD: Yes. CHAIRMAN FLEGAL: He doesn't have to go down there and sign anything? He can call and ask for an inspection, is that what he needs to do? MS. ARNOLD: According to the testimony of the inspector, the investigator, they explained to him that he can do the removal, and then after the removal is done, he can call for a courtesy inspection. CHAIRMAN FLEGAL: So, he doesn't need this, quote/unquote, courtesy permit because it doesn't exist. So, he can just do the work. After he does the work, he makes a telephone call to Horseshoe Drive and requests a courtesy inspection, and he will get it. MS. ARNOLD: Yes. MR. LEHMANN: And none of this action, none of the demolition action actually requires a permit of any type? MS. ARNOLD: That's what was directed by the inspector at Page 43 January 27, 2000 the time. MR. LEHMANN: So at this point in time, there's literally nothing standing in the respondent's way of actually completing the demolition? MS. ARNOLD: Correct. CHAIRMAN FLEGAL: The question is to you, sir, understanding what must be done, are you willing to cap all these things off, take all these things out? MR. DI MARCO: May I say something? CHAIRMAN FLEGAL: Let me get you sworn in, sir. MR. DI MARCO: My name is John Di Marco. I live at 2978 Poplar Street, Naples, Florida. I acquired a permit -- MR. DI MARCO: Wait, wait, wait. Wait a minute, sir. (Mr. Di Marco was sworn). MR. DI MARCO: Okay. Going back to the conversation from the zoning inspector, I was advised by Doug Wood to obtain a permit for the downstairs of my house, which I had done, which I called the County, and nobody came out and made an inspection. So, I've been trying to work it out with the County to do things to bring it up to their codes. On this previous inspection, they came out in the last few days, and they came out there and told me that I have to remove my washer and dryer, all my plumbing that's downstairs and certain parts of the electric. Now, the house is approximately 26 to 30 years old, and the washer and dryer and all the original hook-ups for the washer and dryer have been located in the downstairs of the house. This is a stilt house. Now, I don't understand why I have to take my washer and dryer and move it to the upstairs when it's been in the downstairs of my house for 26 years. I can understand about the bottom facility, that they want the plumbing capped off because it's below the level for the plumbing, but I can't understand -- there's no bed in there, and I sit in there, and I have a little room, and I wait for my son to come home from school. He's 11 years old. He meets me in there. We go up, and we have dinner. Nobody lives in that room. Nobody habitates in that room. I Page 44 January 27, 2000 just sit in that little room at a desk. I have a scanner in there, and I have a computer in there, and it's an IBM voice pad, and that's how I read all the documents that come to me from the County, of course, and from the zoning board. That's what I use that little room for down there. On the third floor, I have an attic space where my 22 year old son lives, which provides me transportation back and forth to where I need to go and the food shop and everything. They said to me on the inspection that the bathroom that was in the attic, which has been there for all these years, we just remodeled it with new plumbing fixtures, cannot be there because the ceilings are too Iow. So, that has to be turned back into an attic, but it just seems as though the County, every time they come out, they either -- excuse me, the zoning, they either add something or take something away, and I don't think we'll get this resolved until I really get a list of what they actually want done in black and white so I know exactly what they are looking for, because it seems like every time they come to me for these inspections, such as last time, they said, well, now you need to remove your laundry sink, next to your washer and dryer. Now you need to move your washer and dryer. Well, if I move my washer and dryer to the second area, where am I going to obtain the plumbing for the washer and dryer?. Will I need a permit to move the washer, dryer?. Will I need permits for new plumbing fixtures on the second floor? I don't understand that if the washer and dryer has been in my house all these years on the downstairs level. Now, I can understand the nonhabitate in the downstairs, but I feel as though, as a person living in this community, that I have the right to sit in the bottom part of my house in front of the computer so I can read on an IBM voice pad. I feel as though I have that right. Nobody is habitating there. There's no bed in there. It's a place where I sit and wait for my son to come home from school, and if the zoning board comes out and tells me that I'm not permitted to sit in the downstairs of my own home, I think there's a problem we have here, because I should be allowed to reside in my second floor where I sleep at night and sit in my Page 45 January 27, 2000 first floor where I wait for my son to come home, and I should be able to do my laundry on the first floor of my house. I have no place to relocate my washer and dryer, and I don't know, because every time zoning comes out, they turn around, and as I've stated before, this has to be removed and this has to be removed, then this has to be removed, so I feel as though it will be an endless battle with them because every time they come out, they want me to remove something, things that have been there on the property for all those years, and I don't feel as though zoning can tell me that I cannot sit in the downstairs of my place behind a desk and go on my computer and read on an IBM voice pad. I feel as though my human rights are being violated and my civil rights are being violated in my own property, and as far as the deed transfer, the deed transfer is in the process right now to put the property in my name, and I live there with my two sons and myself. It's not a rental property. It's a place for myself and my children to live, and that's all I'd like to say. MR. LEHMANN: Mr. Di Marco, I just wanted to clarify one of your statements. In your testimony, you're saying that you are using this area as an office, in essence, for lack of a better term. With that use, the County, I would assume, is looking at that as complying with the definition of a habitable space, and I think maybe the County is looking at that or looking at their decisions in this matter based on that particular use, and that's just -- I'm not sure of that, but that might be something that may be considered. One thing I do have for Ms. Arnold, if she's still around there -- sorry to interrupt you, Michelle. This particular residence, the investigator that has gone out to the residence as well as the building officials that went out there and looked at it, what codes are they citing this particular case on? Are they looking at it in lieu of the existing codes in place today, the codes that were in place when the residence was constructed or anything in between? MS. ARNOLD: With respect to the first level -- MR. LEHMANN: Yes, ma'am. Page 46 January 27, 2000 MS. ARNOLD: -- the elevation requirements have been around as long as the house has been built, so -- and that's the reason why the house was constructed with a non-inhabitable space on the lower level with its original construction. So it is to building code at the time of construction, and the reason why the attic area cannot be habitable is the ceiling heights, and the ceiling height requirements have been in place since the construction of this home. So, it's all the building codes at the time of construction, not -- and they haven't changed, so -- MR. LEHMANN: So, what the County is asking this particular respondent to do is to return the residence in its permanent condition? MS. ARNOLD: Correct. MR. LEHMANN: In that permanent condition based on the existing codes during construction, is the washer and dryer permitted to be used in a storage area on the lower level? MS. ARNOLD: I can't answer that question. According to the testimony of the inspector -- the investigator, the inspector has indicated that they cannot have that down there. MR. LEHMANN: Thank you, ma'am. MS. DUSEK: Michelle, I have a question for you. Originally, you had requested that they get building permits. MS. ARNOLD: Right. MS. DUSEK: Now we know that they cannot get building permits. MS. ARNOLD: Correct. MS. DUSEK: So, in looking at the violation sections, it's in reference to the building permits, and the statement of violation and request for hearing, should those be changed, you know, when we make our findings of fact and recommendations? In just reviewing it -- MS. ARNOLD: Well, the violation -- I don't believe so, because what that refers to is that they did work without a permit, which is the violation, and had they tried to obtain the permits, then it would have been noted for them that they Page 47 January 27, 2000 couldn't, you know, if all the information was provided to the customer service agent. MS. TAYLOR: Michelle, have they ever asked to come to you and go through -- all this whole year with all these problems, have they ever asked to come in your office and sit down and have you go through this with them? Have they ever asked for that? MS. ARNOLD: To me, personally, no, but they have spoken with the supervisor, and they have spoken to the building director, and the building director is the one that informed them that they could not permit the structure the way they are currently using it. CHAIRMAN FLEGAL: Ms. Rawson. MS. RAWSON: Yes. CHAIRMAN FLEGAL: Maybe to help clarify something for some of the members, since the section cited stated that they -- states that they need permits to do some various things, and now it's been determined that these certain things, permits are not obtainable, I suspect that it's the right citation but the only recourse for the board is to order the things removed since, in fact, these items are not permitable. That it's not the wrong section, it's just that what you've done, you can't get permits for anyway, so undo it. Is that -- MS. RAWSON: That's true. You know, you can say get permits and if permits are not available, then you have to remove the violation. CHAIRMAN FLEGAL: I mean, there's really no recourse here, even though they are cited under a section that says you need permits. If permits are not available, the only alternative is you must remove whatever you've done. MS. RAWSON: That's correct. I don't know if you would make the determination whether permits are available. CHAIRMAN FLEGAL: I'm just saying based on what the County is saying that -- MS. RAWSON: I understand. CHAIRMAN FLEGAL: -- if they're leading us to believe that's correct. My feeling is, I think what's happened is a lot of these Page 48 January 27, 2000 things were done before these gentlemen purchased the house, and it's really-- MS. RAWSON: I'm sure. CHAIRMAN FLEGAL: -- not their fault that they are there. It was done by somebody who maybe didn't do it correctly the first time, and they are kind of stuck with it. MR. DUBLINO: We are back to the trees. CHAIRMAN FLEGAL: It's unfortunate, but again, it's one of those places where somebody is stuck with something they didn't know in the beginning. Okay. Any other questions for either Mr. Dublino or the County? MR. DI MARCO: I'd just like to ask one more question if I could. CHAIRMAN FLEGAL: Yes, sir. MR. DI MARCO: I would like the zoning board to please give me a list of what they want done, and I mentioned that, what you had said, unfortunately, that these things were done before we arrived to this property, but I would like to know, concerning my washer and dryer and my clean sink, where I would put this? I mean, where will I put that in my home? CHAIRMAN FLEGAL: That's a question we can't help you with, but-- MS. ARNOLD: I can have the inspectors that were out provide me a list of what needs to be done, and we'll be happy to send it to you. MR. DI MARCO: Will zoning issue me a permit to put an addition onto my home to build a laundry facility? MS. ARNOLD: I think you need to address that to the building department. Inform them what you want to do, and then they will tell you what you can and cannot do. MR. DI MARCO: I need to know that. Also, I need to know, am I permitted to sit in the downstairs once the bathroom is removed? Am I permitted to sit in my own home on the bottom level? MS. SAUNDERS: Not if there's electricity in there. If I'm understanding it right, not if there's electricity. I mean, you're Page 49 January 27, 2000 not permitted to have electricity. MS. ARNOLD: I can only address what improvements are being made to your downstairs. I can't tell you whether or not you can sit in your downstairs. CHAIRMAN FLEGAL: I think-- MR. PONTE: We are way off this case and the violation. CHAIRMAN FLEGAL: I think you need to go to them, but I think you're -- you can sit down there at your home. I think the problem comes in that you evidently closed it in and you weren't -- I'm not saying you, but the house. So, I think you need to talk to these folks -- MR. DI MARCO: It was enclosed already. CHAIRMAN FLEGAL.' I think that's where the problem is coming. It's not that you're not allowed there. It's that because it is closed and with electric and everything, that's what created the problem. So, if you go and talk to these people, they'll probably tell you, if you get rid of this, then now it's like -- and I don't know if it's screened or not, but if it was a screened in area, it's just a downstairs big screen porch, and you can sit there all you like; not a problem, but you need to go talk to them because we can't really help you there. MR. DI MARCO: I did go yesterday and applied for a courtesy permit or a courtesy inspection, and I was denied that, and I was told that I have to bring Mr. Dublino back for that, but we are in the process of transferring everything over right now. I just want to know if I am permitted, after it's finished and I remove the plumbing from downstairs, if I'm permitted to sit in the lower level of my home? CHAIRMAN FLEGAL: You're going to have to go back to Horseshoe Drive. I think the first thing you need to do is probably transfer this deed, and that's a real easy thing to do. MR. DI MARCO: Yeah, I understand that. CHAIRMAN FLEGAL: Get that done, and then when you go to Horseshoe, you, in fact, will be the owner -- MR. DI MARCO: Correct. CHAIRMAN FLEGAL: -- and then they can talk and you can Page 50 January 27, 2000 talk on the same plane, and nobody is going to be misled. Tell them what you want to do, ask them what you must do and make them give you a list, you know, and then hopefully all the problems are going to be solved, okay? MR. DI MARCO: That's all I would like is a list from the zoning of what needs to be done so every time they approach us, they don't find another thing that needs to be done, and it is an after the fact matter of this property, of all the stuff that's there that I have to move now, but I just want to be assured that zoning will give me a permit to build a laundry room on the second floor, so I can place -- CHAIRMAN FLEGAL.' We can't answer that. You have to go to them. We can't help you there. MR. DI MARCO: I understand. Thank you. MR. PONTE: We have heard a lot on this case, and the description of the violation is very simple. It is simply one declarative sentence. The violation in a nutshell is that the structure was altered without first obtaining permits. That's the question; yes or no, and the question of habitable space and all the other things we've heard is not the question before this board. It's just a question, as this is written, in the event as to whether or not we find that there's a violation because work was done without first obtaining a permit. That's the case. CHAIRMAN FLEGAL: I'm with you so far. MR. PONTE: So far. Okay. I just wanted to get refocused because we've been on it -- MS. DUSEK.' I'd like to make a motion -- MR. PONTE: -- two days in a row. MS. DUSEK: I'd like to make a motion in the case of CEB Number 99-072, Board of County Commissioners versus George Dublino and John Di Marco, that a violation does exist. This violation is of Sections 2.7.6, Paragraphs I and 5 of Ordinance Number 91-102, the Collier County land development code and Section 104.1.1 of Ordinance Number 98-76, the Collier County building construction administrative code. MS. SAUNDERS: I will second that. MR. PONTE: I will second that motion. Page 51 January 27, 2000 CHAIRMAN FLEGAL: We have a motion and a second that a violation, in fact, does exist. Any further questions? MR. LEHMANN: Just a comment to my colleague, do we need to define the particulars of the violation or just reference those code sections? MS. DUSEK: I think we just need to reference those; is that not correct, Ms. Rawson? MS. RAWSON: That's correct, we need to reference those sections. I'll put them in the order. CHAIRMAN FLEGAL: Any further questions? Hearing none, all those in favor of the motion, signify by saying aye. Any opposed? (No response}. CHAIRMAN FLEGAL: Okay. We've established a violation does exist. Now the order of the board to get the violation resolved. MR. PONTE: Let me just remind the board that we heard this case on December 23rd, and all of this is familiar territory. At that point, we continued the case to this meeting. MS. ARNOLD: We never -- we never heard the case. We just continued it. MR. PONTE: We continued it? MS. ARNOLD: Yeah. CHAIRMAN FLEGAL: We didn't actually hear it. MS. ARNOLD: This is the first hearing. MR. LEHMANN: Different case. MR. PONTE: I'm sorry. CHAIRMAN FLEGAL: We've had a chance to read it, but it did not come before the board. MS. ARNOLD: Right. MR. PONTE: There was no testimony? MS. ARNOLD: No testimony was provided. MR. PONTE: So I'm in error. CHAIRMAN FLEGAL: If that's the only one you make, we're in good shape. MR. PONTE: I read it too closely. Page 52 January 27, 2000 CHAIRMAN FLEGAL: Anybody-- MS. TAYLOR: Michelle, what is the bottom line here? Exactly what needs to be done now? What do we need to make a motion on? MS. ARNOLD: Well, they need to remove all the improvements on the lower level as well as the attic area and make them non-inhabitable areas and request a courtesy inspection of the building department so they can verify that all the improvements have been removed and that what exists is in accordance to county code. CHAIRMAN FI. EGAL: Ms. Rawson, let me ask the question before the board sticks their neck out. Ms. Arnold has said to remove certain things. We're making the assumption that, or at least she is making it and passing it on to us, that none of the items that are in existence in violation can be permitted. I mean, this board doesn't know that in fact. Would we not be on safer ground in an order stating to obtain permits and/or remove -- MS. RAWSON: Correct. CHAIRMAN FLEGAL.' Because that gives them the option if something can be permitted to keep it, then they can permit it. If we just say remove it, we've now taken that option away from them. MS. RAWSON: I would say permit and/or remove. CHAIRMAN FLEGAL.' Okay. Just so -- I want to give as much latitude to them as possible just in case. I don't want to put them in a position where they could have got a permit but the board ordered them to remove something. I think that's unfair to them, and since we don't know, I think we need to make the statement so that they can go either way. MR. LEHMANN: Ms. Arnold, how long would it take, and I know -- this may be the wrong question to ask you in particular, but I'm trying to get a time frame. If the respondents desire to go through the process of changing title, correcting that problem and then going forth and trying to obtain permits for even a portion of the work that is permitable, even though much of it is not permitable, what time frame are we looking at for them to Page 53 January 27, 2000 exhaust all avenues? MS. ARNOLD: I think what we are recommending as far as two weeks would be an adequate time to do the removal, but if they're trying to obtain permits, they should be able to apply for permits within that time as well. MR. LEHMANN: Again, the order of the board is to correct the violation, and -- MS. ARNOLD: And your order could state apply for permits or remove within whatever time period you find applicable. MS. SAUNDERS: Or it could state apply for permits -- obtain permits within two weeks or remove within 30 days. I'll make a motion. CHAIRMAN FLEGAL: Let me make a suggestion before you make a motion. Why don't you group both of those? Rather than give them two weeks to get a permit and 30 days to remove, why don't you make them obtain permits and/or remove within the 30 days? Don't make them get their permits within two weeks. Make them get either/or by the 30 day period. Would that be acceptable to you? MS. SAUNDERS: Yeah, that's fine. CHAIRMAN FLEGAL: I think that's a little more lenient on them, and it gives them a little more time, and they can do either/or in that period, and if it doesn't happen, if your interest is such to recommend a fine start at that period, whatever they do is covered, and it gives them a sufficient amount of time, because they wouldn't be able to come back to the board in two weeks and ask for an extension saying, gee, my permits are going to take three weeks, and you've limited me to two weeks. I think that gives them -- if that is acceptable. MS. SAUNDERS: That's fine. Then I will move that the property owners be required to obtain permits and/or bring the property into compliance, specifically the lower level and the attic, into compliance and obtain a county -- a certificate of occupancy from the County within 30 days. CHAIRMAN FLEGAL: They won't get one of those, will they, Michelle? Page 54 January 27, 2000 MS. ARNOLD: No. MS. SAUNDERS: Get it into compliance. MS. ARNOLD: They would, upon an inspection, kind of get a signoff on that work, whatever that work may be. MS. SAUNDERS: And obtain a signoff on inspections within 30 days. MS. GODFREY: Ms. Arnold, I think Mr. Dublino mentioned that they had just -- you had plumbing in the attic already when you purchased the home? MR. DUBLINO: Yes. MS. GODFREY: And that you just replaced it with new -- MR. DUBLINO: New fixtures. MS. GODFREY: -- new fixtures. Do they still have to remove that being that part of the -- MS. ARNOLD: Yes, because it was never permitted. MR. LEHMANN: Ms. Rawson, do we want to be that specific in the method in which we're asking correction in the motion? MS. RAWSON: If I think I understand the motion, and I'm not sure, they are going to apply for permits and/or bring into compliance and/or remove within 30 days. MS. SAUNDERS: Yes. I want the 30 days to cover, not only applying for the permits, but then doing what the permits are supposed to be having them do. What they are asking to have done in the 30 days, it's in the permits. MR. LEHMANN: And in those permits, what are we making the assumption that they are going to do? MS. SAUNDERS: That they comply with code. Whatever they are allowed to do that they wish to do that complies with the county codes. MR. LEHMANN: What if they are able to -- MR. DUBLINO: You don't need a permit to bring it up to code; just a permit to add something. MS. SAUNDERS: That's right. So, if you said I want a bathroom here, and I think I'm allowed to have it here, you've got 30 days to go get your permit and bring the bathroom. If-- MR. DUBLINO: So, I can go in there and do whatever I want to get this thing -- Page 55 January 27, 2000 MS. SAUNDERS: If they'll permit it-- MR. DUBLINO: Just call them and tell them it's done. MS. SAUNDERS.' Sir, you can do whatever you like as long as the County will permit it. If they will not permit it, then you have 30 days under my suggestion. CHAIRMAN FLEGAL.' So we don't get off track now, we're only talking about the current violations. If he wants to build a new bathroom, that doesn't -- we are not interested. MS. SAUNDERS: No, I'm talking about the current; exactly. CHAIRMAN FLEGAL: It's only the existing violations. Everybody remember that. MS. SAUNDERS: Put the word existing in, Ms. Rawson, please. CHAIRMAN FLEGAL: I don't want him to be forced into a corner that he wants to do something that we are not even interested in in 30 days, only these existing violations that we've just found that exist. MS. TAYLOR: I'll second the motion. MS. SAUNDERS: Shall we add a fine to that as well? MS. RAWSON: Yes, you have to. MS. SAUNDERS: Or a fine of -- I'll follow staff's recommendation, or a fine of $100 be imposed for every day the violation continues past said 30 days. MS. TAYLOR: I'll second that. CHAIRMAN FLEGAL: We have a motion and a second. Any question on the motion and the second? Hearing none, all those in favor, signify by saying aye. Those opposed? (No response). CHAIRMAN FLEGAL: Mr. Dublino, Mr. Di Marco, do you understand? MR. DUBLINO-' Yeah, I think I understood all along, but I can't get anybody else to understand. CHAIRMAN FLEGAL: Get your title changed within the next couple of days, I think you're well on your way. MS. SAUNDERS: Mr. Chairman, I apologize, but I need to Page 56 January 27, 2000 leave the meeting for a while. can. I will try to get back as soon as I CHAIRMAN FLEGAL: yes, ma'am. (Ms. Saunders leaves the meeting). CHAIRMAN FLEGAL: Case 99-075, since we have one of our regular members leaving, Mr. Phillips, you will participate, please. MS. CRUZ: Case Number 99-075, Board of County Commissioners versus Anthony P. Delduca. Let the record show that Mr. Delduca is present. We provided a copy of a composite exhibit to the respondent, to the board and to the recorder, and I would like to ask for this composite exhibit to be admitted into evidence if there's no objection from the respondent. CHAIRMAN FLEGAL: Mr. Delduca, are you here, sir?. Do you have any objection to us having this entered? It's the package. I'm sure you have -- MR. DELDUCA: No, not at all. CHAIRMAN FLEGAL: Thank you. So ordered. MS. CRUZ: The alleged violation here is of Section 2.7.6, Paragraphs I and 5, and Section 2.1.15 of the land development code 91-102. The description of the violation is the existence of three large field storage tanks; one is gasoline and two are diesel. These are secured to a concrete pad with a retaining wall and no Collier County building permits. The alleged violation exists at 5881 Shirley Street, Naples, Florida. The owner of record is Anthony P. Delduca. The notices of violations were both served via certified mail. These were received -- proof of these were received. The violation was first observed on August 10th, 1998. The notice last -- the most current notice of violation was given on February 12, 1999 requesting compliance by February 26, 1999. A final reinspection was conducted yesterday, and it was observed that efforts have been made to remove the violation, and part of the violation remains. At this time, I'll call Investigator Soldano to the stand, Page 57 January 27, 2000 please. (Investigator Soldano was sworn). MR. SOLDANO: Good morning, ladies and gentlemen, Mr. Chairman. I'll try to be as brief as possible. My name is Sal Soldano. I'm an investigator with Collier County code enforcement, and in August of '98, we received a complaint from the North Naples Fire Department concerning this matter. On August 10th, I went to the location in question and observed three large storage tanks of fuel on the property. Since August until yesterday, I've been in contact with Mr. Delduca on numerous occasions, in person and on the phone, and also with his staff in person and on the phone. In February of '99, he was also notified by certified mail with a notice of violation. In November of '99, we sent him a letter for this CEB board. As of yesterday, I went to the location and the tanks still remain on the property. However, in his defense, I might add when I spoke to him, he told me he had drained the tanks, and I did observe that the pumps have been removed, and Mr. Delduca is waiting for a contractor to come in and have the tanks removed, and that's where we are. CHAIRMAN FLEGAL: Any questions for Mr. Soldano? Mr. Delduca, sir. MR. LEHMANN: Can I ask a few questions of Mr. Soldano? CHAIRMAN FLEGAL: Sure. MR. LEHMANN: In your statement of violation, you reference Section 2.1.15. That's Ordinance 91-102. I just want to clarify, on what grounds are you citing that particular ordinance as a violation? MR. SOLDANO: That's prohibited uses and structures. MR. LEHMAN: As a broad sense? MR. SOLDANO: Yes. MR. LEHMANN: So, you're referencing basically the first paragraph of item number one? MR. SOLDANO: Yes. MR. LEHMANN: And the second question real quick is just Page 58 January 27, 2000 directed to Jean. Jean, in the quitclaim deed, it references -- and bear with me, I'm not an attorney nor a realtor, so sometimes I have to ask stupid questions. The quitclaim deed as I read it references Anthony Delduca as a grantor and David Holland as a grantee. Is it Mr. Delduca we should be speaking to or referencing as a respondent or Mr. Holland? MS. RAWSON: The quitclaim deed makes Mr. Holland the owner of the property. MR. LEHMANN: So, we are actually speaking to the respondent? MR. DELDUCA: I'll help you with that. CHAIRMAN FLEGAL: I believe where you find less and except is probably -- there's a parcel that was -- is not part of this deed, and I suspect that parcel is where Mr. Delduca has these tanks. MR. DELDUCA: Correct. MS. CRUZ: That's correct. MR. LEHMANN: I told you I ask stupid questions. CHAIRMAN FLEGAL: No, good question. MS. RAWSON: Good question. CHAIRMAN FLEGAL: Would you swear in Mr. Delduca, please? (Mr. Delduca was sworn). CHAIRMAN FLEGAL: Good morning, sir. MR. DELDUCA: Good morning. Go back to the deed real quick, let me clarify that for you. When I bought that parcel from Mr. Holland, it got recorded wrong. He actually owned two parcels there at one time, and the deed -- actually, I owned his property, so we had to -- I had to quitclaim him back that parcel, so that's what you see there, so just to clarify that. Sal's been actually great to work with, trying to get these tanks and some clarification on what I need to have these tanks there. They're under 550 gallons. By the State, you don't need any containment, which we do have containment on my site. There's a lot of, I guess, gray area here. Apparently, what I found out this morning, the North Naples Collier County Fire Page 59 January 27, 2000 Department is the one that has -- kind of threw all these red flags up around Collier County with these fuel tanks. There's a lot of fuel tanks on construction sites. I don't know if you guys have ever seen them, they are big gray tanks, probably 10 foot long and about that high, where people need off road fuel for their equipment. I've probably seen in the last day, just driving around, probably ten of these tanks around Collier County. I guess where the problem lies is apparently the fire marshal or this Jim Quigley guy, I don't know if he's the fire marshal now or not, I don't know if anybody knows that, but he's the one, apparently, that called Sal or the code people and threw the red flag up. So, what I found out from Bob Salvaggio this morning in conversation with him, trying to just clarify what I need to do here, is that he said that the fire people have their own type codes, and they go by their own -- whatever they feel they need to do or enforce, they do, because I did ask him for a code, a spec., something on containment, what do I need to do, and I'll do anything you want me to, just tell me what I need to do, and I thought we had done that originally. Combs Oil is the people that do fill our tanks, and we had spoke to them this morning, and Bob Salvaggio said that they did a lot of permitting or they do a lot of permitting with the County, and talking to Combs, they don't do any permitting, so I'm kind of lost on which way I need to go here, but, apparently, it lies with the fire department, North Collier County. So, the tanks are currently drained and capped. There's no code -- I can have a big tank on my property. I guess I can't use it for fuel. MS. ARNOLD: Well, part of the -- over here. Part of the -- what you need to get done is that you put these structures on the property without first going through and getting the appropriate authorization from the County for the structures, and I guess you attempted to do that with American Engineering Company per your site development plan. MR. DELDUCA: Yes. I'm going back to some of those letters, what we were told is we needed a survey, and at the Page 60 January 27, 2000 time, I had a survey done showing the containment area. When I did place the tanks though, I checked with Combs. They said, no, we never get any permitting. They're under 550 gallons. You don't need a containment area. We did it anyway. So, that's how this whole thing started. If I knew I needed a permit, I would have went through the whole process of getting one. MS. ARNOLD: What you need is to show the County what improvements you're doing on your property, and that you do through a site improvement plan or a site development plan. Did you talk to the planning department at all to determine whether or not -- MR. DELDUCA: No, I didn't. These tanks are free -- I mean, I didn't build like a -- it's not a tank that's built in the ground or anything. It's a free-standing mobile tank. You can put it on a trailer. You can move it to a ]ob site. It's -- they're not -- I don't know-- I'm trying to -- CHAIRMAN FI. EGAL: Let me ask the question. MR. DELDUCA.' They're not that enormous. CHAIRMAN FLEGAL.: Is this because he has the tanks or is this because he built a wall around the tanks? MS. ARNOLD: The wall around it. CHAIRMAN FLEGAL: Which is it, the tanks or the wall? MR. SOI. DANO: I think it's a combination of both. MS. ARNOLD: It's both. CHAIRMAN FLEGAL: So, you're telling me that because -- if he didn't have the wall and he just had the tanks sitting there, he would need some kind of permit to have them sitting there? MR. $OLDANO: Yes. In a permanent -- if they were mobile, I guess you wouldn't need it, but because he set them on the ground -- CHAIRMAN FLEGAL: How do you know they're not mobile just because they're sitting there? MR. SOLDANO: Well, he sat them on the ground on a permanent -- on a slab, and he had them connected and pumping them on-site. CHAIRMAN FLEGAL: I'm trying to get us information. Page 61 January 27, 2000 MR. SOLDANO: And then he put up a wall around it so they couldn't be moved once the wall was up. CHAIRMAN FLEGAL: Does that help -- MR. DELDUCA: They were put into the -- I know. I mean, this is the gray area that I'm dealing with. I mean, technically, I've got a big trailer. I could put all three of these tanks on a trailer, and now they are mobile, and I don't need any of this stuff, but we just tried to do the right thing. We tried to put a containment area around it, protect them, and here I am. I didn't know I needed a permit for that or I would have done it. MR. PONTE: So now you have empty tanks, pumps' been disconnected, and the only then remaining violation is the brick wall that I saw in the photos; is that right? MR. LEHMANN: The tanks remain. MR. PONTE: The tanks remain but they're disconnected -- MR. DELDUCA: I can own tanks. MR. PONTE: -- so violation -- MR. DELDUCA: I don't know why it would be a violation if I had three tanks on my property if they were just sitting there, you know-- MR. LEHMANN: Mr. Soldano, what code reference are you referencing by saying that the tanks themselves are in violation of code right now, being empty and disconnected? MR. SOLDANO: Well, according to the fire department, at the time when they were full, full of fuel, there was a violation. MR. LEHMANN: But at this current date? MR. SOLDANO: Now? MR. LEHMANN: That's correct. MR. SOLDANO: If the tanks are empty, I would assume they are not in violation, but he still has the wall around it. MR. PONTE: So, the wall is the violation. MS. ARNOLD: Well, let me just try to clarify things. the tanks are affixed to the property, and there's a wall, He's -- containment wall around it, and there's improvements that have been made to that site. Any improvements made to a site, there's a site improvement plan requirement or a site Page 62 January 27, 2000 development plan requirement. They need to go to the County to determine which level, whether it's site improvement, which is less requirements, or site development. If he's intending to, because he's emptied the tanks, remove the tanks and the wall, that would take care of the violation, but if he intends to keep them there in the current state, full or not full, he needs to come to the County and get the adequate site improvement plan to site development plan to allow those to maintain, because right now, that property is recorded as undeveloped, and it's actually developed and being utilized for something. MR. PONTE: What is your intention? MR. DELDUCA: Well, my intention is to find out what I actually need to do with 500 gallon tanks, which is unclear at this point, talking to several people that I've talked to. I was going to contact the fire marshal and see what he says. MR. PONTE: No, I mean, what is your intention to do with that site? Are you going to leave the tanks there or are you going to remove the wall or -- MR. DELDUCA: Well, I mean, I'll take down the wall. It's just a block wall. The tanks, I'm going to leave the tanks empty, sitting on my site until I find out I can't use them or I can use them. MR. LEHMANN: Ms. Arnold, I'm trying to find out definitely whether a violation exists or not, and let's take a scenario. If I have three 500 gallon tanks, and I drop them on my property, have I improved the property in the County's viewpoint? MS. ARNOLD: Well, in the County's viewpoint, then you're now using your property for storage, and unless that property has been authorized to use for storage, yes, you are in violation. The County -- on the county records today, that property is noted as vacant, unutilized property. It's being improved if it's used for storage or, you know, if a structure is built on it and that type of thing. What would help Mr. Delduca is if he comes into the County's development services office and sit down with one of the planners, tell them exactly what they want -- he wants to use Page 63 January 27, 2000 that property for, and they will assist him to tell him whether or not he needs to do a site improvement plan, a site development plan or whatever, and that hasn't happened yet. MR. LEHMANN: If I have a trailer, and I put the tanks on the trailer, and I park it there, am I now using it for storage? Am I violating a code? MS. ARNOLD: If you have a tank on a trailer, technically, you could be. MR. LEHMANN: And the reason I ask-- MS. ARNOLD: If it's a vacant, unimproved property, yes. MR. LEHMAN: And I'm just trying to get a clarification of the text of the code, in essence. You see throughout the county storage being everywhere, literally everywhere. My question is, by placing these tanks here, has the respondent improved the property to the point where an SDP and SIP is required? MS. ARNOLD: And that's what he needs to ask the planning department to clarify. MR. LEHMANN: But again, for the board to vote as to whether a violation exists, I think we need to have clarification. CHAIRMAN FLEGAL: Ms. Rawson. MS. RAWSON: Yes. CHAIRMAN FLEGAL: Let's really confuse the issue. The deed, which is a deed to Mr. Holland, which we're not dealing with -- MS. RAWSON: Correct, it's not the right legal description. CHAIRMAN FLEGAL: So now the piece of property that we're dealing with, is this less and except, is really what Mr. Delduca is on. So my question would be, is the County saying this is unimproved property -- I don't know whether Mr. Holland's property has been improved or it's just weeds, I don't know what's there, but are we dealing with the right thing? I mean, has this property been -- it's obviously been split, so is the County looking at the right thing? MS. RAWSON: Well, the legal description that's on the statement of violation is the same as the less and except, so -- Page 64 January 27, 2000 although we don't have the deed that gave the property to Mr. Delduca, this is part of the less and except. So, it's the same -- it's the right legal description. CHAIRMAN FLEGAL: Just the wrong deed. MS. RAWSON: Well-- CHAIRMAN FLEGAL: Mr. Holland, when they bought the property, they each got a deed. Now he's quitclaimed it back, so there is a deed for this -- MS. RAWSON: There's another deed. CHAIRMAN FLEGAL: -- for this less and except that reads the opposite of this. MS. RAWSON: There's another deed that probably -- based on what he said he did to correct it, there must be another deed to Mr. Delduca that gave him the whole property, and then you would read it along with this second deed, the quitclaim deed, which is the less and except back to Mr. Holland. So, there's another deed. CHAIRMAN FLEGAL: But there would be a deed that should read the opposite of this because this gave Mr. Holland the southwest quarter less and except. So, there's a piece of paper somewhere that gave Mr. Delduca -- MS. RAWSON: That gave Mr. Delduca the whole thing. CHAIRMAN FLEGAL: -- the less and except. MS. RAWSON: Well, no, I think it gave him the whole thing. MR. DELDUCA: It gave me the whole thing. CHAIRMAN FLEGAL: It gave you the whole thing. MS. RAWSON: Then he gave back part of it except for what he kept. So, there is a second deed. MR. PONTE: You're trying to make life difficult. MR. DELDUCA: I'd like to go back to what Michelle said, is that that's a -- just a piece of land there. There's actually two buildings on that land that are occupied by an auto air company -- no, it's not. I occupy -- that's my -- I own the whole thing. I lease that to him. I use the yard in the back, so it's not undeveloped land. It's been developed for years and years. CHAIRMAN FLEGAL: That's what I'm trying to find out is she's saying it's undeveloped land on the records and -- Page 65 January 27, 2000 MR. DELDUCA: Yeah, this is just not a lot that all of a sudden I cleared and based and put tanks on. I mean, this is a -- I bought the property this way. I mean, there's a, like I said, an A/C man doing business out of the two buildings that are up front, and I occupy the back of the lot. MS. RAWSON: There's another warranty deed that gives the whole property to Mr. Delduca. It's dated November 20th, 1997, and if you read that deed in conjunction with the one that's dated June 30th, 1998 from Mr. Delduca, he gives back to Mr. Holland everything except what he really kept, because it corrects the mistake in the deed. MS. ARNOLD: Can I ask Mr. Delduca a question? When you were in contact with American Engineering Company, why did you request their assistance? What was that for? MR. DELDUCA: I wanted American to show the containment area on the property. So, apparently, we needed to go in and do this -- they wanted to see -- they wanted to show where it was due to setbacks and stuff like that. That's why we had the survey. MS. ARNOLD: The site plan. MR. DELDUCA: Right. MS. ARNOLD: Did you contact the planning department or someone in the community development division and that's why you wanted to show where they were in relation to the setbacks? MR. DELDUCA: Yes, I believe-- MS. ARNOLD: And that process is what you needed to do, and I guess -- I wanted to point that out, because that communication has been -- has taken place, and what he needed to do, and, apparently, the planning department told him that he needed to get a site -- I don't know what level, if it's a site improvement plan or a site development plan, so, therefore, these improvements warrant that additional approval from the County, and that's why we were at the level that we are at today, but it never went through. It started, but it never commenced or never finished. MR. LEHMANN: So, in summary of what we have here, we Page 66 January 27, 2000 definitely do have a violation of the code -- MS. ARNOLD: Right. MR. LEHMANN: -- based not only on the storage tanks being in place and permanently affixed to a structure, the slab itself, but we also have a retaining wall that was built around that without permits? MS. ARNOLD: Right. MR. LEHMANN: As I say, I just wanted it to be very clear that we actually do have a violation, not that we're getting some misconstrued interpretation of field tanks and everything else. MR. PHILLIPS: Are the tanks actually permanently affixed to the -- MR. DELDUCA: No, they are just sitting on top of the slab. MS. DUSEK: Michelle, you -- Michelle, you said that these violations are because it's unimproved property. MS. ARNOLD: Well, he has clarified that that is a piece -- because when I looked at the property information, it looks like that was a separate property from the improved property in the front. There's two buildings or -- MR. DELDUCA: Yes, there's two buildings in the front -- MS. DUSEK: Is that all -- MR. DELDUCA: -- if you can call them that. MS. DUSEK: Is that all on the same property that we are talking about? MS. ARNOLD: He's saying it is, but it shows in the property records that it's a separate parcel. MR. DELDUCA: No, it's all the same parcel. MS. DUSEK: Because if it's considered improved property, do we still have a violation? MS. ARNOLD: Yes, because the improvements that he's made weren't on a site improvement plan. MS. TAYLOR: So what he really needs to do is to get permits plus an improvement plan, is that what he needs to do -- MS. ARNOLD: If he -- MS. TAYLOR: -- first of all? MS. ARNOLD: If he desires to keep those on there and utilize it. Page 67 January 27, 2000 Is that what you want to do? MR. DELDUCA: No, what I'm going to do is I'm going to take down the containment area, and I'm going to contact the fire marshal to see what he requires to have 500 gallon tanks, which by the State, they are not required to be in a containment area, and they can be moved, and you can move them with a trailer or a truck. That's what I'm going to do. I'm not going to go through the planning department and bring that property up to current status because it would cost $30,000 to do that, and it's not worth it to have fuel tanks on a piece of property. So, I'm not going to go that route. So, I'm going to take down the wall, and the tanks are drained and capped as we speak so as far as the tank violation, it's been taken care of, and the wall, that's easy to tear down. CHAIRMAN FLEGAL.' Ms. Arnold, since the tanks, Mr. Delduca just said they are not affixed to the pad, they are just sitting there -- now I'll take the man at his word, it's his property. So if they are just sitting there and he takes down the wall, do we have a violation? MS. ARNOLD: I don't know. MR. LEHMANN: Does the existing slab that the tanks are sitting on constitute a violation or an improvement to the property? MS. ARNOLD: Can I ask for one minute, and I'm going to ask the code department. CHAIRMAN FLEGAL: One of the things that's confusing, I keep hearing -- of course, Mr. Delduca is getting a lot of information from the fire marshal, and I haven't read anything in this code that talks about the fire marshal saying you have to do this, that and the other thing, and that's very confusing. So what I'm trying to get at is if the tanks aren't permanently affixed, if they are just sitting on a vacant lot, is that an improvement and he has to take them off of there? We understand the wall has to come down, but if he takes the wall down and the tanks just sit there until he can, whatever, sell them or go through the process -- I mean, it's -- the fire marshal seems to keep creeping in here, and I don't see his name Page 68 January 27, 2000 anywhere in this ordinance, so I think we need to quit dealing with him. MR. LEHMANN: Mr. Chairman, the other side of the coin on this is if we reference temporary use for construction sites and whatnot, and I'm assuming -- MS. ARNOLD: Can I interrupt just for a minute? Bob Mulhere, he's a planning director for the county, can address some of these questions that you have with respect to whether or not he would still be required to go through some sort of review process with the County based on what he wants to do. MR. MULHERE: I'm going to answer the questions generally. CHAIRMAN FLEGAL: One moment, sir. (Mr. Mulhere was sworn}. MR. MULHERE: For the record, Bob Mulhere, planning director with Collier County. I just happen to be in the room because we are -- we're planning on doing a workshop sometime today maybe. CHAIRMAN FLEGAL: It will happen. MR. MULHERE: So, I'm going to answer these questions generally, because I don't know the details. I haven't been apprised of the details of this case, and I'm going to start out by giving you the premise of what I understand to be the issue here, and correct me if I'm wrong. There are some improvements to this industrial zoned property for which appropriate or proper permits have not been obtained, and the question I understand is if certain portions of the improvements are removed and certain improvements of the property are left remaining, does that still constitute a violation, the example, a wall perhaps, perhaps the tanks when they are drained, if I understand that, or the slab, and my initial response would be yes, those -- any improvements to the property remaining would constitute a violation if the property -- if the improvements did not receive permits which are required. You put a slab in, you have to go and get a building permit. You want to put up a wall, you have to go and get a building permit. If you're going to keep tanks on the property industrially zoned, even though they're not filled, that's a storage function. Page 69 January 27, 2000 You're storing those tanks on the property. Storage is a permitted use in the industrial district but requires a site improvement plan. We want to know where you're going to store things. People are going to access the site. We want to go through that process. The level of detail or the level of improvements that we might require through that process may be much less if the function is only going to be storage than if it's going to be used on an everyday basis for some other reason, but we still want to go through the process. We want to establish what it is your intention to use the property for, what improvements you wish to make on the property and then what level of review is required. So, I would suggest that if there were no permits pulled and no site improvement plan approved, the resolution is not to remove some of the improvements, unless in association with that, the applicant is willing or the property owner is willing to go through the site improvement process to let the other things still remain on the property. Is that clear?. CHAIRMAN FLEGAL: Basically, you boiled this down to that if you own a piece of land, just dirt and weeds, anything you do to that property is considered an improvement and/or if you just set something on it, it's considered storage. MR. MULHERE: Correct. CHAIRMAN FLEGAL: So, you either leave it bare, because once you do something to it, you need a permit. MR. MULHERE: Correct. CHAIRMAN FLEGAL: If you do anything to it. MR. MULHERE: Some level -- yeah, some level. Some things will require less -- let me give you an example. You can put a wall around your property. You can obtain a fence permit to do that without any other improvements being on the property, without any other level of review other than the building permit that would be required. So, that would be a pretty easy fix, you know, the wall. A wall or a fence can be permitted through simply a building permit; no site improvement, no site development plan required, but other types, a slab, those types Page 70 January 27, 2000 of things, now we're beginning to move into the kind of improvements that would require a site improvement plan, but if you're going to store something on the site in the industrial district, permitted use, but you can see, probably taking things to the extreme, and, in fact, we've experienced this over time, if we didn't require that site improvement plan, an awful lot of people would use their property to store an awful lot of stuff without any regulation. CHAIRMAN FLEGAL: Yeah, I understand. MS. DUSEK: Mr. Chairman. CHAIRMAN FLEGAL: Yes, ma'am. MS. DUSEK: It's clear to me that there is a violation, and -- CHAIRMAN FLEGAL: Thank you. MS. DUSEK: -- how this is resolved, I think, will be up to the homeowner, Mr. Delduca, and I think he realizes it, and I think he has some plans to take care of it. So, I think we should proceed in deciding that there is a violation and go ahead with our resolution for it. MR. LEHMAN: Is that a motion? MS. DUSEK: I didn't make a motion. I'm just making comments, but-- CHAIRMAN FLEGAL: Mr. Delduca, you can sit down. You don't have to stand there, unless you would like to tell us something else. MR. LEHMANN: If you don't want to make a motion, I will. MS. DUSEK: Go ahead. MR. LEHMANN: I motion that we proceed with the finding of fact in the case of 99-075, Board of Collier County -- excuse me, Board of County Commissioners, Collier County versus Anthony P. Delduca, respondent. Finding of fact is, number one, that Anthony P. Delduca is the owner of record of the property, and that the code enforcement board has jurisdiction of the person, the respondent, and that Anthony P. Delduca was present during the public hearing. The real property legally described as -- inserted into the statement of violation is in violation of Ordinance -- of Section 2.7.6, Paragraphs I and 5, and 2.1.15 of Ordinance Number Page 71 January 27, 2000 91-102 of the Collier County land development code in the following particulars, that would be the existence of three large fuel storage tanks, a concrete pad, retaining wall and other sundry attachments to that without issuance of a Collier County building permit. MS. DUSEK: I second that motion. CHAIRMAN FLEGAL: We have a motion and a second that a All those in favor violation, in fact, does exist. Any question? of the motion, signify by saying aye. Any opposed? (No response). CHAIRMAN FLEGAL: Order of the board for correction? MR. LEHMANN: Proceeding on with that, I would recommend to the board that the code enforcement board order the respondent to correct the violations by obtaining a site improvement plan and a building permit for storage tanks and wall structure or any other method that complies with codes and ordinances. I would recommend that we follow staff's recommendations for a 45 day time period to obtain the approval of this SIP and that correction should be done within that period of time. I would recommend for the board's discretion a possible fine of $100 a day on this. MS. DUSEK: I second that motion. CHAIRMAN FLEGAL: We have a motion and a second that Mr. Delduca be given 45 days to obtain whatever is required, a site improvement plan and/or permits and whatever to correct the violation, or should he so desire, to remove the violation in that 45 day period. If not, a fine of $100 a day will go into effect. Any questions? MS. TAYLOR: I'm wondering if the fine is stiff enough. This has been going on since 1998. MS. DUSEK: I think it is because he has already shown some response to it by emptying the tanks. MR. LEHMANN: I would agree with my colleague. The staff had recommended a fine of $250 a day, but again, I, in my motion, I prefer to temper that based on Mr. Delduca's Page 72 January 27, 2000 cooperation with staff's activities already. MS. TAYLOR: I agree. CHAIRMAN FLEGAL: Any further questions? All those in favor of the motion, signify by saying aye. Any opposed? (No response}. CHAIRMAN FLEGAL: Mr. Delduca, do you understand? MR. DELDUCA: Yes, sir. CHAIRMAN FLEGAL: You have 45 days, sir, to do whatever, and I'm sure if you get ahold of Michelle or our planning director, they can lead you in the right direction and be glad to help you. Next case, 2000-003. MS. CRUZ: Yes, sir, Board of County Commissioners versus Joseph Falato, David and Zenalda Falato. That's Case Number 2000-003. Let the record show that David and Zenalda Falato are present. These are the occupants for the location where the alleged violation exists, and let the record show that it is my understanding that Joseph Falato, the owner of record, is not present. I've prepared a composite exhibit that I provided to the board as well as to the respondent. I'd like to request for this composite exhibit be admitted into evidence if there's no objection from the respondent. MS. FALATO: I have no objections, but I would like to see the photos that Leo had taken. We had gotten photocopies of those. MS. CRUZ: That is also a separate exhibit that I'd like to introduce into evidence as well. CHAIRMAN FLEGAL: I have no pictures, so I don't know what everyone is talking about as far as pictures. MS. CRUZ: I'll be providing that to the board. CHAIRMAN FLEGAL: Okay. Ma'am, do you have any objection to the package and/or the pictures? MS. FALATO: No. CHAIRMAN FLEGAL: If you'd like, if you'll be seated, and Page 73 January 27, 2000 we'll call you. You can sit right there in the front, please. MS. CRUZ: The alleged violation here is a violation of Section 2.6.7.2.1 of the land development code 91-102, the recurring illegal storage of a recreational vehicle, specifically a boat on a trailer. It is located on 130 Second Street, Naples, Florida, which is more particularly described as Trail Acres, Block 2, Lot 21. The owner of record is Joseph Falato. The address of Mr. Falato of record is 203 Morris Circle, Crum Lynne, Pennsylvania 19022. The violation was first observed on November 24th, 1999. The persons in charge were given a notice of violation on December 1st, 1999. This notice requested a compliance by December 3rd, 1999, and the last reinspection was conducted on December 6th, 1999, resulting violation continued. MS. ARNOLD: If I may, for the board, this is being brought to you as a recurring violation. The dates that were specified in Maria's findings was the last case that was prosecuted, but we've had several cases at this location. CHAIRMAN FLEGAL: Ms. Rawson, I have a question for you before we get started. Under the Statute 162.06(3), would you take a look at that, and as I read that, my interpretation is that this can be considered a repeat violation based on the words in that. MR. LEHMANN: Which section again, Cliff? CHAIRMAN FLEGAL: 162.06(3). MS. RAWSON: Well, yes, and also, if you go back to 162.04 or 5, the definition of repeat violation, it's a violation of a code or ordinance by a person who has been previously found through a code enforcement board to have violated or who has admitted to violating the same provision within five years. So, yes, it is. CHAIRMAN FLEGAL: My reasoning for asking the question though is since under the parens three item, in giving its breakdown, a repeat violation does not necessarily have to have been before the board as I read that. MS. RAWSON: I think a repeat violation needs to have been Page 74 January 27, 2000 found by the board or he needs to have admitted one. I think it's a recurring violation if it has been found by the board to be a violation, and I think the recurring violation is the term that Ms. Arnold used. MS. ARNOLD: It's our belief that once the board finds that this violation had existed or continues to exist or was recurring, if they violate again, then we can bring it back to the board as a repeat violator. MS. RAWSON: Have they ever been before the board on this before? MS. ARNOLD: No, they have not. MS. RAWSON: So, the board has never made a finding that they were in violation? MS. ARNOLD: Correct. MS. RAWSON: I think it's not a repeat violation. It's just a recurring violation. MS. ARNOLD: Right. CHAIRMAN FLEGAL: Good. MR. LEHMANN: Jean, was I -- does it physically have to come before the board or can it originate as a claim, because we have 2,000 cases a month that staff handles that we never see? MS. RAWSON: Well, I can only answer you like a lawyer. I'll read you the statute. A violation of a provision of a code ordinance by a person who has been previously found through a code enforcement board or any other quasi judicial or judicial process to have violated. So, it may not be this board, it could have been a court of law or maybe some other quasi judicial board, although I don't know that we have too many of those in the county -- MR. LEHMANN: Which section are you referring to? MS. RAWSON: 162.04, 5, definition of repeat violation, and, of course, it has to have been in the last five years. CHAIRMAN FLEGAL: Right. I just want to make sure that there is a definition between recurring and repeat, and you've done that, at least to my satisfaction. Thank you. Page 75 January 27, 2000 All right, sir. MR. LAMELAS: enforcement investigator. (Mr. Lamelas was sworn}. MR. LAMELAS: Good morning. anonymous complaint to our office. For the record, Leo Lamelas, code This case was initiated by an The complainant stated that there was a boat in the driveway of 130 Second Street, and that it had been there for three consecutive nights. On my initial site visit on November 24th, 1999, I, in fact, did see a white boat on a trailer stored in the front driveway of Mr. David Falato's house. I did not see anyone home, so I posted a red tag and an order to remove the boat to the backyard by November 29th. That same day, I received a message from Mr. Falato who stated that he only keeps his boat in the driveway for a few hours to work on it. So on my third site visit on November 30th, I saw the boat was still parked in the driveway. I then proceeded to take a picture at 7:15 in the morning. I then returned that same day at 1:30 in the afternoon and observed that the boat was still in the driveway, six hours and fifteen minutes after my initial visit that day. That boat did not appear to have been moved at all that day. I then went back the following day and posted a notice of violation on Mr. Falato's property and at the courthouse with an order to correct the violation by December 3rd. On my fifth site visit, December 6th, 1999, I saw the boat was still parked in the driveway. That's when we decided to bring the case before the board. My next site visit on January 5th of this year, I saw that the boat had been moved to the backyard of Mr. David Falato's property on 129 First Street, which would put the violation in compliance. As Mrs. Arnold stated before, the reason this case was brought before the board is because Mr. Falato has been in violation of this section on numerous occasions in the past and has received proper notices from the County and has been informed on how to correct this matter. Page 76 January 27, 2000 CHAIRMAN FLEGAL: Question, when you first went out there on March 10th, that was the first time that they showed you they had a temporary permit for their boat? You went out March 10th, and the permit expired March 17th? MR. LAMELAS: I was not the investigator that went out there that day. MS. ARNOLD: Yeah, their -- the information that's provided, not in all cases was Investigator Lamelas the investigator. There's been different investigators out there on some of those occasions. MR. PONTE: Ms. Arnold, the date is right? Is it 19977 MS. ARNOLD: Yes. CHAIRMAN FLEGAL: When did you first get involved? Can I ask that question? MR. LAMELAS: May of last year. CHAIRMAN FLEGAL: May of '98 or '99? MR. LAMELAS: I believe it was on September 10th of 1999. CHAIRMAN FLEGAL: Okay. You went out there then, and they had a permit, correct? MR. LAMELAS: A temporary use permit, yes. CHAIRMAN FLEGAL: Where was the permit? Was it on the boat? MR. LAMELAS: No, it was not on the boat. CHAIRMAN FLEGAL: Okay. That's all I wanted to know, was it on the boat. Anyone else have any questions? Thank you, sir. Mrs. Falato. MS. FALATO: For our defense -- CHAIRMAN FLEGAL: If you wait one moment, ma'am, please, we'll have you sworn in. (Mr. and Ms. Falato were sworn). CHAIRMAN FLEGAL: Yes, ma'am. MS. FALATO: In our defense -- MS. RAWSON: State your name first. MS. FALATO: My name is Zenalda Falato. I reside at 130 Second Street. Page 77 January 27, 2000 In our defense, we would like to show a video, because back in August of '98, we appeared in front of the CEB board, and at that time, we were having a lot of-- a huge problem with code enforcement, and so we need to -- to make our point clear, we need to show the video and then also submit our packet. MR. FALATO: Packet of defense. CHAIRMAN FLEGAL: I guess I'm a little confused. Regarding the boat, you were having a problem or -- MS. FALATO: It all ties in. It all ties in. MR. FALATO: In every aspect, every aspect we were having problems, whether it be the boat, one or two weeds over 18 inches, a palm frond falling off our tree, and code enforcement would -- we really would like the video showed with volume please to start our defense. MS. FALATO: Back in '98, we were in front of this board, and we were -- we explained to the board that we felt that there was an individual that was using code enforcement to harass us. At that time, we had showed them case reports that we had pulled from code enforcement showing that a lot of the violations that were against us were not actual violations. Part of the tape shows what went -- what went -- what happened during the CEB, when we were in front of the CEB board. MS. ARNOLD: Can I just interrupt for one minute? The case that was before, not this board but the other board that existed, was not -- had nothing to do with the violation that's being discussed before you. It was a completely different violation. CHAIRMAN FLEGAL: My premise is, we are interested in the boat. That's the violation before us. MR. FALATO: Okay. CHAIRMAN FLEGAL: Let me finish. It's not that we're trying to be harsh or anything, but what happened before, unfortunately, in saying somebody is harassing you, obviously, a complaint has been made, and from what I'm reading and hearing and seeing, the boat is in your driveway, okay, and that's a violation if you don't have a permit. So, what happened before, unfortunately, while it may make you feel good, is not going to help this violation. Do you Page 78 January 27, 2000 understand where I'm coming from? Your boat is in your yard. It's not allowed to be in your yard, period. MS. FALATO: For X amount of hours? CHAIRMAN FLEGAL: Correct. So, if you've exceeded that, you're in violation. What happened before really isn't going to help you. I mean, we are interested in this, this boat on these days. MR. FALATO: We haven't exceeded the violation time, and we really need the videotape. CHAIRMAN FLEGAL: Okay. Then you need to explain to us, as we've been told that you have exceeded it. So, now you need to explain to us why on these dates you haven't exceeded it, and that's what we're interested in, okay, and then we can make a decision. MS. FALATO: It's just to help us -- to help our case against code enforcement. MR. FALATO: This is a part of our defense. We really wish to have the video shown, please, with volume so that we can show what's going on and why your code enforcement officers are coming out to our house. When I pull my boat around to work on it for a couple of hours, code enforcement is there, the same day, within a couple of hours. The second I put the boat on the trailer, bring it in my driveway -- I have a neighbor to vouch for me on these certain days that the boat was brought around that day. Code enforcement showed up in a matter of two hours to cite us for a violation on an anonymous call that has been coming from the same party for six years. We'd really like to have the video shown in our defense, please. That's what we brought for our defense, to start our defense for the boat in our driveway. MS. DUSEK: I think here we're working on a time frame, and I don't think a video can show us the time frame. MR. FALATO: I think it would clearly show that we are singled out and discriminated against from code enforcement. It clearly shows, okay. We have proved this before the board before. MS. DUSEK: The only thing we are interested in is the boat. Page 79 January 27, 2000 You referred to weeds before, that's not anything to do with us today, and unless the video could show us this time frame, which is really the issue here of the boat being in the driveway, which I don't think a video can do, I don't think that that's going to serve a purpose. MR. FALATO: We feel that it would show the purpose of why code enforcement jumps to a certain individual's phone call and they are directed out to our property all the time by Mr. Morad. We really would like to get this resolved today. We tried to get it resolved before. The board did order code enforcement to follow their handbook and their policies and procedures for the next year. It's well over a year and a half, and they have not done this, okay. We have been harassed and discriminated against from code enforcement for the last five years, and we can show you this, and it all evolves around the boat call, whether it be this call here for November and December dates or if it goes back four or five years ago. MR. LEHMANN: Mr. Falato, Mr. Falato, can I ask you a real quick question? When the boat is not on the driveway, where is it stored? MR. FALATO: In my yard. MS. FALATO: In the backyard. MR. LEHMANN: In your yard, in the back of the yard? MS. FALATO: Uh-huh. MR. FALATO: Yes. MS. FALATO: It's just when a certain individual, who's 90 percent on these reports, makes a phone call to code enforcement, they jump at his call, and we feel that -- MS. ARNOLD: Can I respond to that? We don't jump at anybody's call. We have a system where it's logged into the computer, and we have a 24 hour turnaround, and that's what has occurred in most of these incidents. MR. FALATO: I'm sorry, Michelle, that's not true, and we have tried to talk with you on the telephone. I tried to talk with you since you became part of the program here. You have been no help to us. I spoke with you last week. You yelled at me. You kept asking me, what's your problem, why do you want to Page 80 January 27, 2000 call me. I can't help you. We've tried, so please, that statement is incorrect. MR. PONTE: I think it should be the board's position that someone comes before it and offers a defense packet, that we should at least read it or view it. MR. LEHMANN: How long is your tape, if might ask? MS. FALATO: Less than five minutes. MR. LEHMANN: Less than five minutes? MR. FALATO: About 15 minutes, 14 or 15 minutes maybe. MR. PONTE: Well, we've been talking about it -- MR. FALATO: We've been here all morning. MR. LEHMANN: Mr. Chairman, at the risk of keeping the board here on this particular-- MR. FALATO: We've been here all morning waiting to be heard. MR. LEHMANN: Excuse me, sir. At the risk of keeping the board here even longer, I agree with my colleague. If a respondent has what he considers substantial evidence in his case, I think that we need to at least consider viewing that evidence. So I would recommend that we grant Mr. Falato his request. MR. PONTE: Put that into a motion? MR. LEHMANN: I put that into a motion. MR. PONTE: I'll second it. CHAIRMAN FLEGAL: Any questions? of viewing the video, signify by saying aye. MR. LEHMANN: Aye. MR. PONTE: Aye. MS. GODFREY: Aye. MR. PHILLIPS: Aye. CHAIRMAN FLEGAL: MS. TAYLOR: Aye. CHAIRMAN FLEGAL: MS. DUSEK: Aye CHAIRMAN FLEGAL: Those opposed? Aye. The ayes have it. All those in favor We'll see the video. MS. FALATO: Also, may I ask the board if I can submit the -- this is the packet where it shows the policies and procedures Page 81 January 27, 2000 once again for code enforcement. Two years ago when we were in front of the CEB board, we showed them that these are the policies and procedures that code enforcement are to follow when they answer phone calls, and at that time, we showed the board that code enforcement was not following their policies and procedures. MR. FALATO: Not at all. MS. FALATO: And two years ago, Rhona Saunders, the lady that had just left, she instructed that for a year that maybe code enforcement should follow this, and during that year span, they didn't follow it, because two years ago, we showed code enforcement violations that were occurring in our neighborhood, and those violations are still there today, and according to Michelle, they answer calls by prioritizing their cases. MR. LEHMANN: Ms. Falato, let me just -- let me preface a comment. The board has been sitting here quite a while. We would like this case to move on, in essence. We don't want to take away from your defense, your testimony, but, again, bear with us. We would like that you present only evidence pertaining to the boat and to this particular violation. Any evidence relating to anything that happened in the past, weeds or any other violation is really not a matter of what this board is here. We are here today to look at this sole violation, so please restrict your evidence related to just this particular case. CHAIRMAN FLEGAL: And we have absolutely no power over the County. MR. LEHMANN: That is correct. CHAIRMAN FLEGAL: So whether they are or are not following their procedures, I don't have any power over that. This board can't do anything. We can't fine them. We can't order them. We can't do anything to them. You must understand that. I mean, you say they're not following their procedures. All I can do is say, Michelle, do you follow your procedures. She says, yes, then you and she need to work this out or you need to go to her boss, because we can't do anything about that. MR. FALATO: We have tried several times. CHAIRMAN FLEGAL: But we can't help you, that's what I Page 82 January 27, 2000 keep trying to tell you. We can't help you there. MR. FALATO: That's fine. MR. LEHMANN: You're at the wrong avenue. CHAIRMAN FLEGAL: We can't help you. MR. FALATO: All of our defense that we're going to show you today leads to why code enforcement is coming to our house. CHAIRMAN FLEGAL: If it pertains to the boat, we are interested, and let's see the video. MR. LEHMANN: If you would proceed. CHAIRMAN FLEGAL: Where is it? MS. ARNOLD: It's coming on. (The video is being played.) MR. FALATO: This is when she asked the Court to follow the -- procedures to be followed. It's directed to Michelle Arnold. They can go and check the neighborhood to see if there are any complaints instead of just coming after us. MS. FALATO: These are two inspectors that came out to our house. MR. FALATO: We were replanting this palm tree, okay. It fell over. After they left our house, that driveway with the trailer, and palm fronds are sitting right there. The code enforcement drove right past it, and they were out there to cite us for a palm tree that rolled over. That's trash on a person's front lawn, not a palm tree. This is what we had to deal with for a long time because certain individuals call in complaints. We showed this mobile home a year and a half ago, almost two years ago when we were there. It's on the corner of our block that they have to pass to cite us for a violation. This mobile home is still sitting in the yard in the same spot, and it's never been taken care of. MS. FALATO: There's no violations against -- MR. FALATO: No violation against this property. We have weeds over 18 inches, they constantly come to our house for two or three weeds. They're directed by Ed Morad to come out there Page 83 January 27, 2000 and tell us that. I will show this swimming pool. You can see it from our house. No permits, no electrical permit; it's now considered a below ground pool because it's halfway in the ground. It has a ladder. My child can walk across the street and get killed in the pool at any time. I showed this to the code enforcement officers. They refused to take the complaint. Why, because that's how they've been directed by Ed Morad, not to take any complaints from us when they come out to our house. We put an above ground pool in our yard, we had to pull a variance permit, electrical permit. Three other pools went in at the same time, not one citation or one permit was pulled for any of these swimming pools. When they came out for the palm tree that day, these are the palm fronds they passed to come in and tell me about the tree which blew out of the ground that was in our yard. I tried to report it to them. The agents that are directed out there are not to take any complaints. Here's a little shed that was built. I told the code enforcement -- there's the shed, now completed, stuccoed, doors on it. I'm going to show you some violations in our neighborhood agents have to drive past every time they come to our property on a frivolous call. Here's our boat stored toward the front of the house. Our yard doesn't look like this, but they come out to us telling us we have trash. Vehicles with no registration sitting in these yards for years, but code enforcement is directed to come to our property every time Mr. Campinello (phonetic) calls and makes a complaint. Another pool permit, ladder, these are major violations, folks. These are priority violations, not coming out five and six times a week, 25 times a month -- code enforcement is at our house at least 25 times a month, and they are all directed by Mr. Morad to come to our property. My wife and I have tried several times to speak with Ed Morad on the telephone. His verbal abuse, I can't take any more Page 84 January 27, 2000 of his threats. I purchased a van from my neighbor at ten o'clock in the evening. I put it in my yard at nine o'clock in the morning. The code enforcement was there and red tagged my van. I didn't even have it 12 hours. I didn't even have a chance to get a registration. Ten o'clock at night I put it in the yard, nine o'clock in the morning, code enforcement was there and red tagged everything. On my property is posted no trespassing. They violate our rights and walk onto our property and trespass on no trespassing signs all the time. Here's the boat in the front yard. This man is a county official that lives in this house. We are not reporting these people. We are merely using them to show the fact that we are singled out. This is a house being built next to our property in the back. I had a water problem since they filled both lots. I called it in. Ed refused to take it. Michelle Arnold refused to take the complaint. We got nowhere with this complaint, yet Mr. Campinello calls about one weed or palm tree, and they jump on his call within hours out to our house, within hours. Our rights are violated here. MS. TAYLOR: How much longer is this? Excuse me, how much longer is this? MR. FALATO: Just a couple of minutes. Last week I was cutting hedges out in the backyard. I started cutting these hedges at 8:30 in the morning. One o'clock in the afternoon, Leo was at our front door on a complaint call saying that these hedges were there for two weeks. There are the hedges. I just started cutting them that afternoon. Code enforcement was at our door on a complaint saying they were there for two weeks, giving us an NOV. MR. LEHMANN: Along with the rest of the tape, is it similar to this? MS. FALATO: Yeah. MR. FALATO: Just another minute. They had a couple of weeds over 18 inches right there Page 85 January 27, 2000 where the firewood is, just a couple of weeds, and they came out and gave me an NOV and told me to cut the weeds down. You can't even see this part of the yard from the street. This is right next to us. There's weeds over 18 inches. I gave the complaint to the officer. He refused to take it. Why, because he told me he's not supposed to take any complaints from us when he comes out. Those weeds are almost six feet high. We have five or six weeds over 18 inches, and we have to cut them down. This is what we're leading up to with the boat in the driveway. As soon as I pull it out in the front, code enforcement is out there within an hour. That's the front of our house right there. There's our neighbor's house right there, right next door. I showed this to the code enforcement officer. Our house is clean. The yard is always clean. The grass is cut. This is the lot directly across the street. I showed it to the code enforcement officer. They refused to take any complaint. Why, because they are directed not to from Ed Morad. These guys have been out to our house a few thousand times in the last year, all directed from Ed Morad. They can stop the tape. Here's the driveway. I showed this to the inspector. Here's a driveway that's in our neighborhood, big stone driveway; no permits, no variance. He drove past the driveway the whole time it was going on and refused to take the complaint. MR. LEHMAN: Mr. Falato, is the rest of the tape -- MR. FALATO.' You can stop it. (Video is done playing). MR. LEHMANN: Ms. Falato, again, as I say, you have a very interesting tape. MR. FALATO: Thank you. This is why our case -- MR. LEHMANN: I personally do not feel that much of what is on your tape is within the venue of what we as the board can look at. I think that your complaints about treatment as described in your tape need to be taken to another authority. We're Page 86 January 27, 2000 unfortunately not that authority. This -- MR. FALATO: We tried to take it to them and bringing it and showing it to them, and they were -- MR. LEHMANN: Well, again, even staff has a boss, and that boss is the county commissioners. MS. FALATO: Right, we are going to go to them. MR. LEHMANN: So, there's always a higher ladder that you can go to, and I think that many of the issues that you're describing here, it would better suit you taking those in a different venue other than here. What this board is here to look at is just this particular violation, and we need to constrain our thoughts in that light. Is there any disagreement on the board on that? MR. PONTE: Agreed. MS. FALATO: A question for Leo. It states on here that he came on 11/30 at 7:15 a.m. Now also on the second picture that was taken on 11/30, to me, Leo, it looks like there was a change in the date to make it look like a six hour difference. To me, that looks like 11/29. MR. FALATO: And then you changed it to 11/30 to try and justify just over six hours of time in the driveway. It looks pretty apparent that's what you did with the pictures over here. MR. LAMELAS: If I made a mistake in writing a date and I had to fix it, well, I make mistakes. MS. FALATO: Now, question for you, if you came to my house at 7:15 a.m. and you saw my car there and you came back again at 1:30 in the afternoon and still saw my car there, can you positively absolutely say that my car never moved during that six hour time span? MR. LAMELAS: I never said your car didn't move. I said the boat didn't appear to have been -- MR. FALATO: So you're saying the boat didn't move. How do you know I didn't go fishing at eight o'clock and got back at noon? MR. LAMELAS: I don't. I said it appeared. I never said for a fact it had been there for that amount of time. MR. FALATO: Thank you. Page 87 January 27, 2000 MS. TAYLOR: I think you need to be -- I think you need to be careful of the accusations you're making against a county department. It can be very serious. You're making some dreadful accusations, and I think you'd better watch what you're saying, number one. Number two, you're talking about them as if they are totally unprofessional, and I know better than that. They are very professional in how they deal with everyone in their manner of business, and I know that when you make a complaint, they are not out there just like that. I know that. MR. FALATO: Oh, yes, they are. MS. TAYLOR: I don't believe that at all. FALATO: We've just showed it to you. TAYLOR: Well, what you've shown me has disgusted me MR. MS. totally. MR. MS. FALATO: It's disgusting us too. FALATO: It's disgusting us. MR. FALATO: Thank you. It's disgusting us because they are not following their policies and procedures. CHAIRMAN FLEGAL: Let's get back to the boat. Excuse me, talk about the boat. That's all I'm interested in. I don't know about the rest of the members of the board. Now, are you telling this board that your boat is never parked in violation of the Collier County ordinance; yes or no? MS. FALATO: No. MR. FALATO: No, it's not. CHAIRMAN FLEGAL: It's never. MR. FALATO: No, it never is. CHAIRMAN FLEGAL: Now, I've heard you stand there and say how do you know I didn't move the boat; have you read the ordinance? MS. FALATO: Yes. CHAIRMAN FLEGAL: Do you understand the ordinance? MS. FALATO: Yes. CHAIRMAN FLEGAL: Let's go over it to make sure. It says such equipment, in this case it happens to be a boat, may be parked anywhere on residential premises other than the Page 88 January 27, 2000 right-of-way easements, for a period not to exceed six hours within a time period of seven days. Do you understand what that means? MR. FALATO: Yes, I do. CHAIRMAN FLEGAL: You park the boat there for an hour and leave and come back, that's another hour. Now you're at five hours; six hours in seven days. MR. FALATO: Six hours in seven days, correct. I understand the time frame. CHAIRMAN FLEGAL: Very good. It's not six hours today and then you're allowed six hours tomorrow. That ain't it. MR. FALATO: I understand that. CHAIRMAN FLEGAL: I just want to make sure. MR. FALATO: Yes, sir. CHAIRMAN FLEGAL: Very good. Any other questions for the Falatos. MR. LEHMANN: I do have a question for the investigators though. CHAIRMAN FLEGAL: Fine. MR. LEHMANN: Mr. Chairman, I appreciate that, because that's a point that I was about ready to make also, is that -- I need to be very clear that the County has -- MR. FALATO: I think I can -- MR. LEHMANN: Let me finish, please. I need to be very clear that the County has prosecuted its case properly and that it has proven a violation exists. A violation, according to code, as our chairman has indicated, is six hours within seven days. Your photograph on 11/30/99 indicates 7:00 a.m. for the first photograph, 1:30 p.m. in the second photograph and, again, if the boat was moved and placed back in there, have we proven that this boat stayed in place for six hours within seven days? MR. LAMELAS: No, we haven't. I didn't sit there for six hours and see whether the boat was going to be moved or not. During the whole time frame of this case, I had to drive by that street on a couple of occasions other than on my reinspection dates, and I did see the boat remain on that driveway for however long a period of time, I'm not sure what it Page 89 January 27, 2000 WaS. MR. LEHMANN: I think we have a very difficult situation in this particular case. The respondent's accusations about what staff may or may not be doing is, like I say, very interesting, but I don't think it's relevant to this particular case. I think, again, we need to have definitive proof that a violation does exist. Two photographs taken at two different times during the day doesn't definitively prove the case in my opinion, especially in this particular case. If we have a time frame that county staff can testify to that tells me yes, beyond a shadow of a doubt, I saw it there six hours and one minute within this week of time, that's fine, but I have two photographs now that are taken at two different periods of time where my investigator has not definitively proven the case to me. I'm concerned that we as a board may be making a subjective decision based on this evidence. MS. TAYLOR: Look at the case history. MR. LEHMANN: I understand that, and trust me, I am looking at the case history. The last thing I want to see is repeat violators, and if this is indeed the case, that these particular respondents know -- and I'm sure that they do know what the code says because they've been cited so many different times. Again, I just want to make sure that we have proven the violation. CHAIRMAN FLEGAL: And as I --- MS. ARNOLD: Can I -- can I just add that there is two pictures that were taken on the 30th? There was also a picture taken to witness the violation initially on the 24th, and there's also a photograph of the picture on the 6th, and the investigator did testify that he witnessed the vehicle, not pictured the vehicle, witnessed the vehicle in that same location within -- on his rechecks for other cases within that neighborhood. No, he didn't sit there for a six hour period, but he was there within a seven day period and witnessed the vehicle still there. Now, if Mr. Falato was moving it and only parking it there within that time period for five, you know, the six hour period within Page 90 January 27, 2000 those trips that he took -- I mean, he's real busy moving that boat in and out of his yard. MR. LEHMANN: Again, don't get me wrong, Michelle. I'm not -- by no means do I condone the activity of moving the boat one foot and thereby defining that fact that we've now moved our boat. They're nothing more than abusing the system, and by no means do I want to see that happen. Go ahead. I'm sorry, Mr. Chairman, go ahead. CHAIRMAN FLEGAL: Back to my other question. So, I do understand that you know the ordinance, and you're complying with the ordinance? MR. FALATO: Yes, sir. CHAIRMAN FLEGAL: What I want to know next is that in September when the investigator went out there and you folks had a permit, it wasn't affixed to the boat. Why? MR. FALATO: In September I didn't use the permit. I got the permit to keep it out there a few days. I didn't keep it out there a few days. CHAIRMAN FLEGAL: I don't care what you got the permit for. The rules say when you get the permit, you put it on the boat. You didn't do it, did you? MR. FALATO: I didn't put it on the boat because I didn't keep it out there for that time period. I moved the boat back the same day. CHAIRMAN FLEGAL: It says when you get the permit, you put it on the boat. MR. FALATO: Okay. CHAIRMAN FLEGAL: You get the permit, and you put it on the boat, period. So, you didn't do that, so which leads me to believe when you get these permits, you don't do what you're supposed to, so now can I assume that you're probably keeping it there for longer than six hours, probably. MR. FALATO: Well, I only had one permit. I didn't use the permit to extend, as I didn't keep the boat out there for that six days, so I didn't feel it was necessary to put the permit on the boat when I only worked on it for an hour or two that day. Page 91 January 27, 2000 CHAIRMAN FLEGAL: But the ordinance says when you get the permit, you put it on the boat. MR. FALATO: Correct, if you have the boat out there for an extended period. CHAIRMAN FLEGAL: No, it says when you get the permit, you put it on the boat. It doesn't say where you put the boat, okay. MR. FALATO: Sure. CHAIRMAN FLEGAL: So, we are not following the rules. If you don't follow one, it kind of leads me to believe you don't follow the other. MR. FALATO: You're insinuating that I didn't follow the rules back in September. The boat wasn't out there, so it was not necessary for me to put it on there. CHAIRMAN FLEGAL: I'm just saying, you got a permit and didn't put it on the boat. MR. FALATO: The boat wasn't in my driveway for that period of time, sir. CHAIRMAN FLEGAL: But you got the permit so you could put it, and it says when you get the permit, you take it home, you stick it on a boat. You took the permit home and laid it on the counter or something. You didn't follow the rules. I'm just saying that leads me to believe -- MR. FALATO: I didn't put the boat out there at that given time, so it wasn't necessary to put the permit on the boat. CHAIRMAN FLEGAL: You're missing the point, but that's okay. MS. DUSEK: Ms. Rawson. MS. RAWSON: Yes. MS. DUSEK: Can we make judgments on circumstantial evidence? MS. RAWSON: Well, actually, you don't really have circumstantial evidence except for the pictures. You have direct testimony, and you are the finders of fact. You have to assess the evidence that's been presented. You have testimony from the inspector that on this day, the boat was there, on this day, the boat was there, on this day, the boat was there, and that's Page 92 January 27, 2000 more than six hours. Then you have testimony from the respondent that at no time did they ever leave the boat out there for six hours. So, you get to make the findings of fact and decide. CHAIRMAN FLEGAL: I have another question. Since we are following -- you say we follow the ordinance, and we don't violate it. Back in January of '99, you told the investigator that you were leaving town due to an emergency, and you would take care of the violation when you returned. Did that, in fact -- is that what you told him? MR. FALATO: I don't recall that. CHAIRMAN FLEGAL: Then on January 16th, he was out there, and the violation was still there. So, from January 7 to January 16th, that's eleven days, a whole lot longer than six hours, and he put a red tag on your boat on the 16th of '99, and on the 20th when he went back, the violation was gone, but now what I want to know is did you tell the inspector back in January on the 7th that you were leaving town due to an emergency, and you'd take care of the violation when you returned? MR. FALATO: I don't recall that conversation, and, again, it's an alleged violation. CHAIRMAN FLEGAL: The boat is there and you're leaving town, it's going to be more than six hours, so it can't be an alleged violation. That's what I'm trying to get at. MR. FALATO: The boat wasn't there. It's an alleged violation. Every time they come out and give us one of these pieces of paper, it's an alleged violation. It's not a proven violation. MR. LEHMANN: Mr. Falato, that's almost beside the point. The question is, was the boat there? MS. FALATO: Back in January of '997 MR. FALATO: I don't recall. When I work on my boat, I bring it out, take it home. My boat does not sit in my driveway overnight for a 24 period of time. My neighbor lives across the street. He will vouch to say my boat is never in my driveway overnight to make it a 24 hour period. Page 93 January 27, 2000 They are going on all phone calls based on the phone calls from a Mr. Campinello who is using this system to harass another neighbor. They are supposed to detect this and weed out the people like him so our rights are not violated. MR. LAMELAS: If I may, Mr. Falato has stated to me that when he does work on his boat, he'll go ahead and put it back at the end of the night or towards nighttime. If I've seen the boat there at 7:00 in the morning and he goes and puts it back at eight or nine o'clock at night, that's more than six hours. MR. FALATO: You're not showing me six hours, Leo, I'm sorry, so you don't -- MR. LAMELAS: I'm going by what you stated to me at one point. MR. FALATO: Every time you come out to my house, you're looking for answers. I've got to tell you something because you're there every day. CHAIRMAN FLEGAL: Any other questions? MS. TAYLOR: Have you tried to resolve your problems with your neighbor? MS. FALATO: Oh, yes. The sheriff's department is involved. We have spoken with John C. Norris. We've spoken with Barbara Berry. They had a meeting yesterday with -- Mr. Manalich called me and said that they were having a meeting yesterday with the county administrator's office. Forest Cotton (phonetic} was involved, and so I don't know what went on with the meeting yesterday yet. I told Mr. Manalich that I would give him a call back, but yes. MR. FALATO: We've also been trying to resolve this problem that we're having with the code enforcement, because they are not following their policies and procedures. CHAIRMAN FLEGAL: That's a problem we can't help you with. MR. FALATO: It seems they can't help us with it either. MR. LEHMANN: Mr. Falato, again, even the code enforcement staff, they do have a boss, and I suggest that you take those complaints to their boss, which is the commissioners. MS. DUSEK: Mr. Falato, can you state to me that within a Page 94 January 27, 2000 seven day period that your boat does not exceed six hours? MR. FALATO: Yes, I can. MS. DUSEK: Leo, can you state to me that within that seven day period, that his boat does exceed six hours? MR. LAMELAS: Yes, I can. MR. LEHMANN: And both of you gentlemen do recognize the fact that you're under oath. MR. FALATO: Yes, we do. Yes, I do. MR. LAMELAS: Yes. CHAIRMAN FLEGAL: Any other questions? Thank you. Thank both of you. You may sit down, please. MS. ARNOLD: Can I just -- MR. PONTE: I think that the -- in my view, that the evidence presented by both the County and the respondent on the issue, specifically on the issue of the boat, I think it's inconclusive. I don't -- it's just inconclusive evidence. It would be very difficult to find a violation under those rules with the evidence that's before us. MS. ARNOLD: Can I just add, a lot of discussion has been brought or had about the time frame and the seven day period. I just want to continue on with that sentence that in the code, it requires not to exceed six hours within the time period of a seven day period for loading and unloading and cleaning prior to or after a trip. Those are the specific things that you are permitted to do if your boat is parked anywhere else on your property with the exception of in the rear yard, and I believe Mr. Falato has testified that, you know, sometimes he's working on his boat but other times he's not. When he's not working on it, it needs to be parked in the rear yard, and every time that the investigator has been out there, there's been no evidence that's he's been working on his boat, loading it or unloading it. MR. LEHMANN: Mr. Chairman, I would, in an effort to try to resolve this case in one way or another, offer some comments just for the board's review, consideration. The code section is very specific as far as time frames, as far as uses permitted within those time frames. I find it -- although I find that the staff's prosecution of this case leaves Page 95 January 27, 2000 some things to be in doubt as far as black and white rulings of violation, I find it very difficult also to believe that the respondents have placed this boat out there and have used it in compliance with the code. I'm left at a quandary. This is a very gray case, although I believe that a violation does exist in the strict sense of the word in the fact that we have violated the strict sense of the code, regardless of what is happening as far as a situation where they are being singled out that may or may not exist. Again, unfortunately, we can't consider that. MR. PONTE: I think we have to find out from the respondent, when he says he's working on the boat, what he's doing working on the boat and how often he does it. I'd like to know how often the boat is used, that is taken on a trip and I'd like to ask the respondent to reply to those questions. Just let me know -- tell me how often you use -- put the boat in the water. MR. FALATO: A couple times a month. MR. PONTE: And so then when you're working on the boat -- MR. FALATO: Working on it could mean loading the -- my Ioran with numbers or something like that, getting it ready for the fishing trip, working on it, working on getting ready to go out on a trip -- MR. PONTE: Which is twice a month. MR. FALATO: So, it would be three or four times -- it's not too often. MR. PONTE: Is there a reason that the work that you're doing, the punching in the Ioran numbers and that sort of thing, can't be done when the boat is in the rear yard? MR. FALATO: Well, I have a back problem. To keep walking all the way to the other property behind me -- we have two properties -- it's much more convenient for me to have it at my fingertips for an hour or two and then bring it back or if I'm working on it and then I take it out for a trial run and then come back -- every time I work on my vessel or load it or unload it, I hook it up on my truck. I pull it out of the back driveway. That same day, within a couple of hours, code enforcement is there. MR. PONTE: That's not my question. My question was how Page 96 January 27, 2000 often you had an opportunity to work on the boat, and obviously you have a back problem. MR. FALATO: I don't work on it that often, but this past November, I was getting it ready for company that we had coming in December, in the middle of December. Prior to that, it's not that often. It's not very much. CHAIRMAN FLEGAL: Let's get back to the board. Can the board find that there either is or is not a violation? That's our only purpose; either one or the other, and the gray area doesn't work. You either want to find that he did violate or he did not, and let's just make a decision. MR. PONTE: Well, I think Ms. Arnold has made a -- in reading this closely, it's talking about loading and unloading, either cleaning prior to or after a trip, is a very important point that she has brought to our attention. Now, the respondent says he uses the boat every two or three, maybe four times a month, he doesn't know. I think that information puts a different light on it on the probabilities that exist. MS. TAYLOR: I make a motion that there is a violation. CHAIRMAN FLEGAL: We have a motion on the floor that there is a violation. Is there any second? MR. LEHMANN: Could you define that violation, please? MS. DUSEK: I think we have to identify it. MS. TAYLOR: That the defendant is parking the boat in his driveway for more than allowed hours, and that's my motion, that he is guilty of this. MS. DUSEK: Do you want me to continue that in being more specific with case number, Diane? Is that all right if-- MR. PONTE: Well, if you want to do that. CHAIRMAN FLEGAL: At least let's have the motion, and then you can -- we'll ask a question. MS. DUSEK: Do you want me to go ahead with it, Cliff? CHAIRMAN FLEGAL: Sure. MS. DUSEK: All right. In continuing Diane's motion, in Case CEB Number 2000-003, Board of County Commissioners versus Joseph Falato, David and Zenalda Falato, that there is a Page 97 January 27, 2000 violation, and that violation is of Section 2.6.7.2.1 of Ordinance Number 91-102, the Collier County land development code, and the description of the violation, recurring illegal storage of a recreational vehicle, boat on a trailer. CHAIRMAN FLEGAL: We have a motion. Any discussion on the motion? MR. PONTE: Yes, I would like to just observe that -- I don't think we can find any fact based on the solid or the inconclusive evidence, rather, based on the inconclusive evidence that we have just viewed. It's all circumstantial evidence. It's all one party versus the other and just making statements. I don't think we have anything solid. MS. TAYLOR: We have testimony of a government official. MR. PONTE: And we also have the testimony from the respondent. CHAIRMAN FLEGAL: Fine. That's for us to make that determination. So, we have a motion. Is there a second on the motion? MS. ARNOLD: Who made the motion? Is that -- MS. TAYLOR: I did. CHAIRMAN FLEGAL: Well, it was a motion that was spelled out by -- made by one, spelled out by the other, but it's only a motion right now. Is there no second? MS. DUSEK: Well, did I make the motion? If I didn't, then I would second it. MR. LEHMANN: That's a good question. We have one board member starting the motion and didn't finish, do we actually have -- MS. RAWSON: Well, one of them can make it. The other one can second it. CHAIRMAN FLEGAL: Okay. It's immaterial. Bobby spelled it out, so would you like to second it? It was your motion to start with, and she just spelled it out. MS. TAYLOR: All right then. You make it. I'll second it. CHAIRMAN FLEGAL: We have a motion and a second. Any question on the motion? MR. PONTE: Yes, can I hear what the motion is again? Page 98 January 27, 2000 CHAIRMAN FLEGAL: That there is, in fact, a violation of Section 2.6.7.2.1 of the land development or of the Ordinance 91-102, that a recreational vehicle has exceeded the six hour time limit within a seven day period. I narrowed it down. I think she added some extra words about a boat on a trailer, but that's pretty much the motion. MR. LEHMANN: Thank you. MS. DUSEK: I think we should keep in mind before we vote on this, Leo's testimony that when he went there, there was no one working on the boat. He did go within the time frame that would exceed the six hours, and Michelle's comment about working on the boat, unloading or loading I think is -- are pretty strong evidence as far as I'm concerned with. MR. LEHMANN: Let me just add again, as my colleague had mentioned, the testimony of a government official, I personally do not value the testimony of a government official over the testimony of a private citizen. They both have the right to testimony. They are both equivalent in their testimony. CHAIRMAN FLEGAL: They are both equal. MR. FALATO: I want to change my comment from working to cleaning. MR. LEHMANN: I just want to make that very clear on the record. I think before this board votes, it's clear we are voting on the issue of whether a violation exists based on what is obviously very circumstantial evidence. Enough said. CHAIRMAN FLEGAL: We have a motion and a second. Any further discussion? MS. GODFREY: In my opinion -- can I say something? CHAIRMAN FLEGAL: Sure, yes, ma'am. MS. GODFREY: My opinion is the way the defendants are being prosecuted according to their-- or harassed according to their own words, maybe I don't feel that way, he would be very diligent in making sure that he did not break any violations, okay. I was on the south board when they brought up their other case. I saw the similar -- I was on that board, and I would think that they are just killing themselves every morning going out and policing the area to make sure that if that certain individual Page 99 January 27, 2000 calls, that there would be no violation, and that's why I'm kind of -- I know where Ms. Arnold -- I know where the County is coming from. They receive a call, they've got to answer it. They have no other choice. They can't say, well, it's what's-his-name, I'm going to ignore it. They have to answer these calls. I'm kind of in a quandary as to what -- you know, I believe the County. He wouldn't deliberately come up here and lie and risk his position and his livelihood, and this gentleman wouldn't come up here and perjure himself, so I'm kind of -- I really don't know what to do about it, because to me, he would be doing everything he could not to break any violations because the County is out there every day according to him, and I just don't know what the -- I know this gentleman wouldn't -- maybe one day you left it out too long. Maybe -- I don't know. Maybe you did break the six hours and you're usually diligent, and you forgot the time. I don't know what's going on, but I know from being on the south board and on this and diligent, I'm sure you would be careful not to be fined if you have them out knocking on your door. I really don't know what to think. So, if I could abstain, I would. MR. PHILLIPS: I have a question for Ms. Rawson in terms of what the legal standard is in evaluating the evidence that has been presented to the board today. MS. RAWSON: It's not beyond a reasonable doubt. He's not a defendant. This is not a criminal action. It doesn't even rise to the level of a civil standard. I think it's less even than the civil standard. You're going to just have to weigh the evidence and make those hard calls and decide based on what you've heard -- and by the way, it's direct evidence when people testify. Circumstantial evidence is when you see pictures that may or may not tell you exactly that it was there for six straight hours. Direct evidence is testimony, and that's why you get to make the hard calls, but it's really -- it's up to you, but it's less even than the civil standard in the Court. CHAIRMAN FLEGAL: Just for general information, since everybody is giving their opinion, my decision will be based on Page 100 January 27, 2000 the questions I asked about the January 7th where he doesn't remember saying he was going to leave the boat there for eleven days. It's in the package that was submitted, circumstantial. He did say that he gets -- he goes and gets his temporary tag, but he doesn't put it on the boat. That's a violation of the ordinance. So he tends to lead me down a path that he breaks it once, he probably breaks it again, whether you want that to be circumstantial or not, but when somebody tells me they understand the ordinance and then they turn around and don't do what it says leads me to believe that I shouldn't believe everything they say, my personal feeling. Now, we have a motion on the floor and a second. We've had discussions. Anyone else wish to say anything before we take a vote? All those in favor that there is, in fact, a violation, signify by saying aye. Was that four ayes? Wait a minute, was that four ayes? MS. DUSEK: Aye MR. LEHMANN: Aye. CHAIRMAN FLEGAL: Aye. MS. TAYLOR: Aye. CHAIRMAN FLEGAL: There's only seven of us on the board. All those opposed, say nay. MR. PONTE: Nay. MS. GODFREY: Nay. MR. PHILLIPS: Nay. CHAIRMAN FLEGAL: It has to be three. Four to three, it carries, there is a violation. MR. LEHMANN: Mr. Chairman, let me add a comment before we proceed. The reason I had given an aye vote on this particular case is because based on the evidence, I believe that a violation in the strict sense of the code did occur. I believe there's a lot of other extenuating circumstances that surround this. Unfortunately, we can't deal with it, but in the strict sense, it did occur. I think that in proceeding forward with a conclusion of law and order of the board, there are many circumstances in this Page t01 ,January 27, 2000 case that need to be considered. I don't want to delineate them right now. Go ahead. CHAIRMAN FLEGAL: The order of the board can be to recommend they do certain things, i.e., follow the ordinance and no more. It can be without any type of a penalty. It can be with penalty. So, in moving forward to the order of the board, understanding the circumstances which has been presented to us and viewed by us, the order can be fairly broad. It does not have to be a we'll back you in the corner type order. We do have latitude. Those who may have been on the borderline as to is or is there not a violation, this is the point where you can give the board its compassion. You don't have to be harsh. MS. DUSEK: I think when we do decide on whatever it is we decide, that we should make it very clear to the staff that in order to monitor this, if it does reoccur, that they would have to be absolute on the time frame, that it can't be I'm there at seven and I came back at ten or I came back at one. We have to have concrete, absolute evidence so that when we recommend any fine or time frame, that if it does occur, we have to know that it was, in fact, over the six hours. MR. LEHMANN: I might also add, in this particular case, it appears as if the respondents do have -- as I say, they have an interesting case, and there may be some merit to the fact that they are receiving undue attention. I'm not saying that staff is going out there on purpose and being proactive to this particular respondent, but I think that we have a reoccurring event. It's possible that other people have the same problem. My recommendation to the board would be not to view this as a reoccurring situation even though I know we've discussed that already, but I would say that we be very lenient on the respondents in the transgression, in essence. CHAIRMAN FLEGAL: Ms. Rawson. MS. RAWSON: Yes. CHAIRMAN FLEGAL: If we issued an order that suggested something and yet had no, quote/unquote, fine or penalty phase Page102 January 27, 2000 in it, and should this same violation become a repeat down the road and be brought back to us, we are then, even though we didn't fine this time, we just gave some kind of a whatever, under the repeat violation portion of the statute, we could then be in the $500 range, correct? MS. RAWSON: Yes, that's right. CHAIRMAN FLEGAL: Okay. Satisfies me. MR. PONTE: I would suggest that what we do is to -- we've already found the fact that there is a violation, that we simply tell the respondents that they are to maintain the property free of the violation, period, and if they have to come back before the board, then it becomes a repeat violation, and the fines could be as high as $500 a day, but for this case, I would think that is what we should do. CHAIRMAN FLEGAL: Ms. Rawson, would we be in line since -- if the board chose to recommend in their order that our order is that they immediately come into compliance with the ordinance and maintain such compliance from this point on, must we give them some time limit to do that like two days, five days? Can we just say-- MS. RAWSON: I don't think so, because this is not your usual case where if you don't move the boat within 30 days we'll fine you, because I think the testimony was that the boat was then moved. So the boat is not in the driveway this morning, I don't think. So, yes, you can do that. CHAIRMAN FLEGAL: Okay. From that standpoint, I would recommend to my colleagues that what the board might do is their order should be that the respondents immediately come into compliance with the ordinance, and from issuance of this order forward, they maintain full compliance with the ordinance and section that they have been cited for, and there be no penalty associated, it would just be that, that they get into compliance immediately and maintain their compliance. MR. LEHMANN: Is that a motion? MS. DUSEK: I second that. It sounded good to me. CHAIRMAN FLEGAL: If you want it in the form of a motion, I Page 103 January 27, 2000 would make it into the form of a motion. MR. PONTE: I'll second that motion. CHAIRMAN FLEGAL: Any question? MS. DUSEK: Mr. Chairman, the only thing I would like to say to Mr. and Mrs. Falato, you know, the code enforcement staff has to respond to calls, and although you may or may not have a neighbor who is harassing you and watching you every little moment, they call the code enforcement, they have to respond. So it's not always code enforcement, although it may appear to you that they are harassing you, it is the call that they have to respond to. MR. FALATO: I have a question. Where does the policies and procedures fall into place? MS. DUSEK: That, you'll have to deal with with another board. CHAIRMAN FLEGAL: We can't help you there. MS. DUSEK: That part you'll have to deal with on the other board. We are trying to be very lenient in this case and hope that you understand where we are coming from. MR. LEHMANN: As you can tell by the vote, the decision to find a violation was apparently a very difficult one for the board, and as my colleague had mentioned, we are trying to cooperate with you because we understand you're in a difficult situation. CHAIRMAN FLEGAL: We have a motion and a second that the order of the board be that they immediately get into compliance and maintain compliance with the cited ordinance and section that they have been violating. All those in favor, signify by saying aye. MS. DUSEK: Aye. MR. PHILLIPS: Aye. MR. LEHMANN: Aye. MR. PONTE: Aye. CHAIRMAN FLEGAL: Aye. MS. GODFREY: Aye. MS. SAUNDERS: Aye. CHAIRMAN FLEGAL: Any opposed? MS. TAYLOR: Yes. Page104 January 27, 2000 CHAIRMAN FLEGAL: Do you understand, sir?. The best we can do for you at this moment. I suggest you seek some other remedies. We've done all we can do to help you. MR. PONTE: And think of working on the boat when it's in the backyard. MR. FALATO: You know, I do have that right to work on it in front of my house. MR. PONTE: Sure you do. MR. FALATO: And clean it. MR. PONTE: Absolutely. CHAIRMAN FLEGAL: Just stay in compliance, that's all we ask. Thank you, sir. Case 2000-04 -- you need a break? THE COURT REPORTER: Five minutes. CHAIRMAN FLEGAL: Fine, let's take five minutes. (Small break was held}. CHAIRMAN FLEGAL: We'll resume. Is everybody ready? Case 2000-004. Who are we missing? Mr. Philips. MR. LEHMANN: We're missing Darrin. CHAIRMAN FLEGAL: That's all right. We can work around that. MS. CRUZ: Yes, sir. The next case is 2000-004, Board of County Commissioners versus Alfredo and Miradis Miralles. MS. ARNOLD: Can I just interrupt for one minute? CHAIRMAN FLEGAL: Yes. MS. ARNOLD: Could you all decide what we're going to do on the workshop for the staff's -- CHAIRMAN FLEGAL: We just asked Ms. Rawson, and I think the board is in agreement, we will have her give her section today when we're finished, and we'll ask that the staff be prepared to do this next month. MS. ARNOLD: Great. Thank you. Okay. Sorry, continue. MS. CRUZ: No, no problem. The alleged violation here is violation of section 1.5.6 and section 2.7.6, paragraph I and 5 of the Land Development Code 91.102. The violation that's described is storage of a mobile home without first obtaining the Page 105 January 27, 2000 Collier County building permits. I prepared a packet, and this packet has been provided to the respondent and to the board, as well as to the court reporter. I'd like to introduce this packet into evidence at this time. MS. ARNOLD: If I may interrupt one more time. I believe the respondents are in need of a translator, so we have Mr. Lamelas here that can give them information as we speak; is that correct? CHAIRMAN FLEGAL: Do you need a translator, ma'am? MS. ARNOLD: Leo -- and I believe he has to be sworn as -- CHAIRMAN FLEGAL: What we'll do is swear everybody in first, and then the first question we want to ask them is if they mind the package being entered. Okay. Let's swear them in first, and you. (Interpreter was duly sworn.} (Speakers were duly sworn.} CHAIRMAN FLEGAL: The first question is, ask them if they mind this being entered as evidence. THE INTERPRETER: They don't mind. CHAIRMAN FLEGAL: Okay. They can have a seat until we call them. MS. RAWSON: I think the record probably should reflect one further thing. They have a copy of it, and they probably haven't had it translated and they probably can't read it. MS. ARNOLD: Well, they have a -- they have a daughter that -- I don't know if we want to ask them for the record if their daughter has -- MS. RAWSON: I would like to know if somebody translated it to them. MS. ARNOLD: -- yeah, has indicated what that packet is. THE INTERPRETER: No. CHAIRMAN FLEGAL: No one has read the packet to them, so they don't understand what it says? THE INTERPRETER: Right. CHAIRMAN FLEGAL: Okay, Ms. Rawson. Next? Shall we just -- MS. RAWSON: Well, as long as you're very careful -- and Page 106 January 27, 2000 that's on the record. As long as you're very careful to explain to them as we go along what the violation is and what we're alleging and what we're doing. CHAIRMAN FLEGAL: Okay. Should we ask them the first very basic question, do they know why they're here? MS. RAWSON: Yes. CHAIRMAN FLEGAL: Let's ask them if they know, in fact, why they're here. THE INTERPRETER: Yes, she does. CHAIRMAN FLEGAL: Okay. And as he's telling us his side, go very slow, give him a chance to tell them in Spanish so they at least know what you're saying, okay? MR. DANTINI: Si. For the record, my name is Gary Dantini. MS. ARNOLD: Wait, Gary, one second. MS. CRUZ: I need to finish with the introduction of the case. CHAIRMAN FLEGAL: Oh, okay. MS. CRUZ: The alleged violation exists at 323 6th Court South, Immokalee, Florida, and as more particularly described, it's Pine Crest -- MR. LEHMANN: Maria, excuse me. Mr. Lamelas, would you translate as we go again? MS. ARNOLD: Why don't we do this for just this portion of it -- because Maria is bilingual and she does speak Spanish, she can read it in English and then read it again in Spanish and refer to it in Spanish. Can we do that or no, or do we have to -- MS. RAWSON: No, we can do that. I'm sure the court reporter's delighted. Why don't we start by asking them what their address is because then at least we know we're talking about the right site. MR. LEHMANN: And we shouldn't worry about the court reporter, because she's a fresh player, so she -- CHAIRMAN FLEGAL: Ask them what their current address is, please. MS. ARNOLD: They need to be up at the mike. They need to be at the microphone, Leo. MS. MIRALLES: 1703 Immokalee Drive. CHAIRMAN FLEGAL: Okay. I guess the next question I Page 107 January 27', 2000 would have then, since that's their current address, ask her if they own the property at 105 South First Street in Immokalee. MS. MIRALLES: Yes. CHAIRMAN FLEGAL: Okay. Anything else I should ask, Ms. Rawson? MS. RAWSON: No, that's good. MS. CRUZ: We should ask if they also own the property located at 323 6th Court South. That's where the alleged violation exists. CHAIRMAN FLEGAL: What's that have to do with 105 First Street? MS. CRUZ: 105 was their mailing address of record. MS. DUSEK: 323 is where the violation exists. MR. DANTINI: The a/Ida. CHAIRMAN FLEGAL: Okay. Well, I guess I'm confused, because I've got a deed for 105 South First Street. That means absolutely nothing to me if that's not where the violation is. MR. LEHMANN: The statement of violation does reference to 323 6th Court South, Florida. CHAIRMAN FLEGAL: Okay. MS. RAWSON: I think the deed references their address but references the legal description of 323 6th Court. MS. CRUZ: Right. MR. LEHMANN: Mr. Lamelas, would you ask the respondents if they own the property located at 323 6th Court South, Florida. MS. MIRALLES: Si. CHAIRMAN FLEGAL: We don't want to get confused. Okay. What else do we need? MS. RAWSON: Well, we'll just have Ms. Cruz say this in Spanish now. They can sit down. MS. CRUZ: The property of record is -- address of record is 105 South First Street, also known as 323 6th Court South, Naples, Florida, Immokalee, Florida. MS. RAWSON: Ms. Cruz, I don't think that the court reporter speaks Spanish, and therefore, probably isn't going to take it down in Spanish. So why don't we do this; why don't you say what you're going to say in English first, and then she can take a Page 108 January 27, 2000 break, and then you can say it again in Spanish directly rather than going through the interpreter so that they understand. MS. CRUZ: Okay. First violation was first observed -- violation was first observed~ January 15, 1999. The Notice of Violation was given on March 18th, 1999. The violation -- the Notice of Violation asks for the violation to be corrected by April 17th, 1999. Reinspection was conducted on January 26, year 2000. Results, violation remained. At this time I'll have Investigator Dantini define his findings of this investigation. MR. DANTINI.' For the record, my name is Gary Dantini, code enforcement investigator. Good afternoon, ladies and gentlemen. CHAIRMAN FLEGAL: Would you swear him in? (Speaker was duly sworn.) MR. DANTINI: I'll try to make this as black and white as possible for you this afternoon. In January of 1999 the Immokalee Health Department had given us a complaint that a trailer was replaced at the 323 South (sic) Court Street in Immokalee. MS. ARNOLD: Gary, one second. Okay. MR. DANTINI: And at that time -- that was January 15th -- I made an investigation and found the alleged violation at that property. I made contact with Virginia Miralles, asking her about the trailer as far as being replaced -- I had been to the property before, and it was a replacement trailer -- and asked (sic) her that she needed to obtain a permit to put the trailer at that location. And also at the time that -- there was a problem with maybe density of the property. She said she would try to get a permit right away for it. Towards the end of January on the 29th, nothing had happened. I issued a Notice of Violation. In the Notice of Violation, it was asked to either remove the trailer or to obtain the proper permits from Collier County. In February -- I gave them until the 10th of February to correct that. In February, I asked them if they had obtained the permit at this time. They said, no, they had trouble finding a Page t09 January 27, 2000 contractor. I suggested maybe a couple of contractors that might be able to help them at that time. THE INTERPRETER: I'm sorry. Could you repeat that? MR. DANTINI: Yeah. I suggested a couple contractors that they might use. I had talked to a Jackie Williams who they picked apparently for the -- to try to obtain a permit. At that time it was informed to them that they wouldn't be able to obtain a permit unless they reduced the density of that piece of property either by removing one of the other trailers or a structure that was there. The trailer also encroached as far as setbacks were concerned on the property. I talked to Virginia again about the situation, and she informed me at the time that they were in the process possibly of selling the trailer and wanted to have a little bit more time. I granted the extra time as far as obtaining a permit, removing the trailer or selling the trailer. That was in April. And in May, on May 10th, the violation still existed. And at that time I requested a code enforcement warning letter be sent out. Subsequently, from that time to this day, since yesterday, the violation still exists, and nothing has been done to correct the situation. CHAIRMAN FLEGAL.' Any questions from for Mr. Dantini? MS. RAWSON: Do they have any questions? MS. MIRALLES: Yes. I think that for us, the trailer, the property, I don't think it was a violation. When we first bought the property, those three trailers were already on the property. Since one trailer was in bad condition, we wanted to better the property for the person. That's all we did. Besides, this is our business. We bought that property to rent out the trailers. I don't see any wrongdoing in that I want to maintain my job, because that's how I make a living. They wanted us to remove the trailer. We didn't want to remove the trailer, because when we bought the property, that trailer was situated there. And we paid thousands of dollars for that property. We want the chance to have a property. Why do we have to remove it? Page t 10 January 27, 2000 THE INTERPRETER: He wants to say something. MR. MIRALLES: We make a living from there. That's how I make my living. I don't have another job. I had a heart operation 90 days ago. I still haven't been cleared from the doctor. I think with that money I want to pay the hospital that he owes more than a hundred thousand dollars. MS. MIRALLES: We feel that in this case there's a little bit of discrimination, and I don't understood why we want to wait. THE INTERPRETER: I'm sorry. MS. CRUZ: She's asking if they need to work, why it's being impeded to them to be able to make a living in that way. CHAIRMAN FLEGAL: Do they want to say anything else? MS. MIRALLES: I don't have anything else to say. MR. MIRALLES: If you take the trailer away, is like take away my job. That's how I make a living. MR. DANTINI: May I ask one question? Mr. and Mr. Miralles, do you have a restaurant business on South First Street? MS. MIRALLES: Yes, my restaurant. But the income of my restaurant is not enough. Some days the sales, we only sell 70 or 80 dollars. CHAIRMAN FLEGAL: That's fine. That's fine. MS. MIRALLES: I owe the hospital a hundred thousand dollars. If I have to prove that, I have my bills here. CHAIRMAN FLEGAL: That's fine. That's not a problem. Anybody have any questions for Mr. and Mrs. Miralles? MS. DUSEK: Leo~ do they understand that the mobile home is in violation? THE INTERPRETER: She doesn't understand what -- because it was already there. MR. MIRALLES: That has been there for 20 years. MS. MIRALLES: The only thing we want was to better -- all we wanted was to better the living arrangements per the county. We didn't think we were going to have that many problems. CHAIRMAN FLEGAL: Okay. MS. MIRALLES: I feel that if we had committed a violation, if we would have had that piece of land where there were three Page 111 January 27, 2000 trailers, and if we would have added another one, but that did not happen that way. We better the one that was already there. Okay. Mr. Dantini? CHAIRMAN FLEGAL: MR. DANTINI: Yes. CHAIRMAN FLEGAL: MR. DANTINI: Right. CHAIRMAN FLEGAL: long time or-- The one trailer in question -- -- is it recent or has it been there a MR. DANTINI: It's recent. It has been replaced. CHAIRMAN FLEGAL.' Okay. It's a replacement for something that was there? MR. DANTINI: There was another trailer there, yes. CHAIRMAN FLEGAL: Okay. When you replace a trailer, you still need a permit? MR. DANTINI: That's -- yes. CHAIRMAN FLEGAL: Okay. MR. LEHMANN: Mr. Dantini, on what grounds are you stating that it's a replacement trailer? Is it a different type, different color, something -- something obvious? MR. DANTINI: It's a totally -- yes. It's a totally different structure. CHAIRMAN FLEGAL.' Do you know how many trailers they're allowed on the property? MR. DANTINI.' I believe that two structures are probably maximum for that size of property that's there. MR. PONTE: Structure, new trailers? Would you consider that a structure? MR. DANTINI: Either trailer or structure. MR. PONTE: Structure. Are there any buildings on that property? MR. DANTINI: Yes, the center building -- the center is a structure building. MR. PONTE: Oh, I see, okay. CHAIRMAN FLEGAL.' There's that building plus three trailers? MR. DANTINI: Two trailers, total. Page 112 January 27, 2000 CHAIRMAN FLEGAL: Two trailers and that building? MR. DANTINI: Yes. MS. GODFREY: How large a lot, approximately? MR. DANTINI: Approximately, it's probably less than a quarter of an acre. MR. LEHMANN: Mr. Chairman, let me remind the board that this is an issue that we've addressed before on a number of different cases. CHAIRMAN FLEGAL: I remember that. MR. LEHMANN: The building code sections that our investigator and staff have identified are very clear. THE INTERPRETER: Excuse me. I'm sorry. If I need -- if you want me to translate, you've got to go a little bit slower. MR. LEHMANN: I apologize. Thank you for reminding me. THE INTERPRETER: Go ahead and start over, because I was trying to -- MR. LEHMANN: I wish to bring to the attention of the board that this is a case similar to what we've heard many times before. The code sections that staff is referencing clearly state the requirements when a trailer is replaced. And I'll go on to quote the section. Section 2.7.6, item number 1, states, and I quote, no building or structure shall be erected, moved, added to, altered, utilized or allowed to exist without first obtaining the authorization of the required building permits, inspections and certificate of occupancy as required by the -- as required by the Collier County building codes. MS. MIRALLES: Okay. MR. LEHMANN: One second, please. Paragraph five of the same section states, no site work, removal of protected vegetation, grading, improvement of property or construction of any type may be commenced prior to the issuance of a building permit where the development poses a required building permit under this land development code. We have reviewed this particular instance many times before, and in doing so, it has been proven that the replacement of a trailer constitutes an action requiring a permit. MS. MIRALLES: Okay. Page 113 January 27, 2000 MR. L. EHMANN: If you would like to comment, please. MS. MIRALLES: You talked about that you had one building and two trailers. CHAIRMAN FLEGAL.' Yes. MR. L. EHMANN: I'm only referencing the one trailer. MS. MIRALLES: And the other two? CHAIRMAN FLEGAL: There's no problem with the other trailer or building. MS. MIRALLES: Okay. We want to know if we can obtain the permits so we can remodel or fix or make habitable, because he told us that we had to remove the trailer. So we thought that if we didn't live in the trailer, we didn't have any problem. He knows that the trailer -- since he did the site visit, we closed it down. We want to work because that's our job. We want to know if we can obtain the permit so we can leave the trailer there. MR. LEHMANN: The action to obtain the permit has to be answered by the building department itself. MS. MIRALLES: So we can obtain the permits and open the trailer? MR. LEHMANN: That's not what I'm saying. CHAIRMAN FLEGAL: We don't know that. MR. LEHMANN: What I'm saying is that this board does not have the authority to issue a permit. THE INTERPRETER: She was asking. I'll go ahead and tell her. MR. LEHMANN: In order for her to determine whether a permit can be issued or not, she needs to receive those answers from another authority, primarily the building department. And also -- THE INTERPRETER: She's translating to him what I said to her. MR. LEHMANN: Also, Mr. -- MS. ARNOLD: Excuse me, if I may. They have already attempted to obtain a permit for that structure. MR. LEHMANN: That's what I was going to go on and say is that -- Page 114 January 27, 2000 THE INTERPRETER: She said no. MR. LEHMANN: In Mr. Dantini's testimony, he had indicated that the density issue would be a problem in obtaining the permit. MS. MIRALLES: And why? CHAIRMAN FLEGAL: Let's ask the first question. Does she know what the density means? MS. MIRALLES: No. CHAIRMAN FLEGAL: Okay. Tell her that on her property, the size of the land, only a certain number, for lack of a better word, of structures can be there, okay? MS. MIRALLES: And what is that? CHAIRMAN FLEGAL: I don't know. That's somewhere else. MS. MIRALLES: Definitely we can't have this structure there? CHAIRMAN FLEGAL: We can't tell her that. MS. MIRALLES: I bought this property, paid a lot of dollars. Now you want me to clean up the place that everything disappears, and to put this there and that's it? CHAIRMAN FLEGAL: Unfortunately, yes. MS. DUSEK: Mr. and Mr. Miralles, on January 15th, 1999, your daughter said that you were going to get a permit that week. What happened? MS. MIRALLES: We had a big problem the size of Florida. MR. LEHMANN: And what was that problem? THE INTERPRETER: Her husband was in the hospital, for one. MS. MIRALLES: My husband was operated on. I'm an only woman. I have my job. It was something of somewhere that was enclosed (sic). It is not habitable. MS. TAYLOR: How many operations has he had? He had one 90 days ago and he had one in January? MR. LEHMANN: I think that's really irrelevant to the case. MS. TAYLOR: No, I don't think it's important. MS. DUSEK: That's why she couldn't get the permit. MS. TAYLOR: That's why she's saying she couldn't get the permit. Page 115 January 27, 2000 MR. LEHMANN: Oh, I see what you're saying. I think the issue at hand really is a possibility of a density obstruction as opposed to something of-- MS. ARNOLD: Can I point out for the board that in March, that the contractor that they hired, Mr. Williams, to obtain the permit, at that time indicated that he could not obtain the permit. MR. LEHMANN: And certainly, to get a permit of this nature, I would assume that that would be an achievable goal within the nine months' period between March and December; is that correct? MS. ARNOLD: Yes. I believe what happened was that Mr. Williams went to the planning office or the office out in Immokalee and spoke to the customer service agent at that location, and he was advised that he could not obtain a permit for that structure. MR. PONTE: Well, the recommendation does not refer to a permit. It simply says one of the structures has to be removed. MS. ARNOLD: Right. MR. PONTE: That's it. MS. ARNOLD: Right. MS. MIRALLES: I think everything that the county wants from us, to clean that property and for us not to have that property, if I have to clean my property and pay whatever a contractor wants to build it, for me to put a trailer there, with what money am I going to do that? I don't have it. MR. PONTE: I think that we have to explain that it doesn't appear to be a matter of money. The problem is one of density. MS. MIRALLES: What do you mean by that? I don't understand. CHAIRMAN FLEGAL: Okay. She needs -- the problem is, one trailer needs to be removed. MS. MIRALLES: Okay. CHAIRMAN FLEGAL: If that one trailer is removed, your property's fine. MS. MIRALLES: What do you want, just one trailer to be removed? CHAIRMAN FLEGAL: Yes. Page 116 January 27, 2000 THE INTERPRETER: Can she remove the two small properties and leave the big one? MR. DANTINI: Can I make a suggestion here? Yes, if you remove the small two smaller structures, apply for a permit, the larger trailer will be able to meet setbacks. MS. MIRALLES: It's been there for 20 years, the three trailers. You want us to remove two, leave one, and then I still have to pay for a permit? I don't see the right. MR. LEHMANN: Mrs. Miralles, the board is not asking you to do anything in particular other than comply with the code. If you choose to remove one trailer or two other structures, or any other method that you choose, to comply with code is all that we're asking. CHAIRMAN FLEGAL: Mr. Dantini? MR. DANTINI: Yes. CHAIRMAN FLEGAL: Since the trailer is what they're in violation of-- THE INTERPRETER: He wants to know what address he can send you the papers so he can give away his property. CHAIRMAN FLEGAL: We don't want him to do that. Just bear with us a minute. THE INTERPRETER: Something that's been there for 20, 30 years, how is he going to be getting rid of it? CHAIRMAN FLEGAL: Bear with us. Mr. Dantini, the one trailer is what they've been written up for? MR. DANTINI: That's all. CHAIRMAN FLEGAL: Okay. Now, if they were to remove that trailer, this problem goes away, correct? MR. DANTINI: That's correct. CHAIRMAN FLEGAL: trailer? MR. DANTINI: No. CHAIRMAN FLEGAL: MR. DANTINI: Right. CHAIRMAN FLEGAL: problem go away, all they have to do is remove this trailer, Do they need a permit to remove this They can just remove it? Ask them if they -- to make the Page 117 January 27, 2000 period. That's -- nothing else. No permits. Just remove the trailer. Can they do that? MS. MIRALLES: Just one moment. I can leave my two small ones? CHAIRMAN FLEGAL: Yes. MS. MIRALLES: Okay. I need some time. My husband isn't going to be released for another six months. He's going on the second. He needs to get re-established. THE INTERPRETER: And she needs some time. MS. DUSEK: Mr. and Mrs. Miralles, who would be removing the trailer? MS. MIRALLES: I'm going to have to find someone to do it. I don't think I have to get a permit to remove it. MS. DUSEK: No. CHAIRMAN FLEGAL: They don't need a permit to remove it, correct? MR. DANTINI: That's correct, not from the county. MS. MIRALLES: I just need to know what amount of time I'm going to get to remove it. CHAIRMAN FLEGAL: Okay. That's fine. We'll work on that. Give us a minute. Okay. First thing the board needs to do is to find that there is a violation, and then what kind of time and/or penalty we would impose to have this removed, which they seem willingly to do. MS. DUSEK: I make a motion that in the case of CEB number 2000-004, Board of County Commissioners versus Alfredo and Miradis Miralles, that a violation does exist. The violation is of section 1.5.6 and 2.7.6, paragraph I and 6 of ordinance number 91-102, the Collier County land development code. Description of the violation, storage of mobile home without first obtaining Collier building permit. CHAIRMAN FLEGAL: Okay. We have a motion that there, in fact, is a violation. MR. LEHMANN: I second that motion. CHAIRMAN FLEGAL: We have a second. Any discussion? Hearing none, all those in favor that a violation does exist, Page 118 January 27, 2000 signify by saying aye. Those opposed? (No response.) CHAIRMAN FLEGAL: Okay. Fine. Now for the order of the board to resolve the violation. Mr. Dantini, a question, sir, might help us. In someone removing the trailer, do we have any names that we could give them to help them, people to contact? Would you have any of those names? If you don't, that's fine. I'm just asking the question. MR. DANTINI: Not at this time, I don't. CHAIRMAN FLEGAL: Okay. That's fine. Thank you, sir. MR. PONTE: One of the things that we might consider is, in considering the time frame, removal of the trailer, if that's the solution, raises the question of where to remove it to. The sale of the trailer, however, eliminates that problem. And so just for our time frame in how to resolve this, they have already sold one trailer on that property, at least that's what I believe. How long did it take them to sell that trailer, and that should be our time frame. MS. ARNOLD: They haven't sold the trailer. MR. PONTE: They did not sell that? MS. ARNOLD: No, they were attempting to sell this one. CHAIRMAN FLEGAL: They have to get it off of the property. How they choose to do that is up to them. And if we give them a, quote-unquote, reasonable time, and -- I guess reasonable to me is maybe 60 days at the most. MS. DUSEK: Leo, can you interpret all this to them? CHAIRMAN FLEGAL: And they can do whatever. So that's what we're thinking about. MR. PONTE: Excuse me. I just need a point of clarification. I thought this, indeed, was a replacement trailer. So it's a replacement trailer, they sold the trailer. MS. ARNOLD: Well, we don't know what they did with it. CHAIRMAN FLEGAL: Well, you don't know whether they sold it, gave it away or whatever. MR. LEHMANN: They disposed of the trailer. Page 119 January 27, 2000 MR. PONTE: Disposed of the trailer? CHAIRMAN FLEGAL: Yeah, they got rid of one and got one. We don't know how. MR. PONTE: I thought the daughter had said they were going to sell the trailer? CHAIRMAN FLEGAL: Well, they were going to -- but anyway. MR. DANTINI: The one that was up -- MS. ARNOLD: The one in question is. MR. LEHMANN: Mr. Chairman, I would motion that the CEB order the respondent to correct the violation by removing the mobile home, or any other method that would achieve code compliance within 30 days, and that would place it at February 22nd or -- excuse me, February 27, 2000. If the above is not complied with, then a fine of $100 a day be imposed each day if the violation continues past that said date. MS. TAYLOR: And I second that motion. MR. PONTE: I think that's very harsh. MR. PHILLIPS: Want to give them a little more time. MR. PONTE: We-- MS. DUSEK: More time. MR. PONTE: We absolutely need more time. CHAIRMAN FLEGAL: Would the -- we have a motion and a second. Would the proponents of the motion and second be willing to back up and adjust to maybe a 60 day period? Would that -- MR. I. EHMANN: Well, I'd certainly like to discuss that, I mean, a 60 day time period. All that we're asking them to do is to dispose of the trailer that is unoccupied to begin with. They can dispose of it off site, however they choose. And again, I don't suggest that the board dictate to the respondents how to accomplish this. All that we're asking for is compliance. If the board considers the 30-day deadline too short, then please convince me, I'll be happy to-- CHAIRMAN FLEGAL: I say that from the standpoint of his health and she's trying to do it all by herself, so to speak. And if we can -- at this point, since it's been there, another 30 days on top of this 30 days isn't going to kill us. All we want is Page 120 January 27, 2000 compliance. MR. LEHMANN: Right. CHAIRMAN FLEGAL: I don't know. I kind of feel 60 days is more than reasonable, and I could live with that in good conscience. MS. TAYLOR: We have to always remember how long this has taken to get them here. You have to remember this. CHAIRMAN FLEGAL: It's taken a year to get this far, so what's another 30 days, as long as we get it complied with. I could live with that. MR. LEHMANN: Well, again, I have no objection. I'm looking for the case to be closed. If you'd like the motion -- CHAIRMAN FLEGAL: I understand that. MR. LEHMANN: -- adjusted to 60 days -- CHAIRMAN FLEGAL: I throw that out for consideration. MR. LEHMANN: I would therefore amend my motion to reflect 60 days instead of the 30 days. CHAIRMAN FLEGAL: Is that palatable? MS. TAYLOR: Yes. MR. LEHMANN: Again, we're looking for compliance. The respondents -- CHAIRMAN FLEGAL: And they seem willing to do that. She said she's willing to get rid of the trailer. She understands that. MS. RAWSON: How much was your fine? MR. LEHMANN: I had followed staff's recommendation of a hundred dollars. CHAIRMAN FLEGAL: Yeah. I didn't change that. I just changed the days. MS. DUSEK: Leo, did you interpret the motion? THE INTERPRETER: I was waiting for it. CHAIRMAN FLEGAL: What we're recommending is either 60 days to either remove, by whatever method, you know, throw it off, sell it, we don't care, just remove it. If she doesn't do it within 60 days, she will get a fine of a hundred dollars per day until that occurs. Okay. She understands? MS. MIRALLES: Yes. CHAIRMAN FLAGEL: We have a motion and a second, the 60 Page 121 January 27, 2000 days, and/or if it doesn't occur at the end of 60 days, a hundred dollars a day. Any further questions? All those in favor signify by saying aye. Those opposed? (No response.} CHAIRMAN FLEGAL: Thank you. So that was the decision. That closes the public hearings. The Keiser case has been removed. MS. DUSEK: Mr. Chairman, would it be -- MR. PONTE: Can I ask, Ms. Arnold, why the Keiser case was removed? What was the reason for that? CHAIRMAN FLEGAL: Is that a question we shouldn't ask? MS. RAWSON: Well, you can ask. This is a -- MR. PONTE: I just did. MS. RAWSON: This is a board in the sunshine. There have been numerous discussions between Mr. Manalich, the county attorney, Mr. Rynders, the attorney, Ms. Arnold, and they've been kind enough to make me privy to those conversations in conference calls, and they're trying to work out an arrangement so that compliance will be achieved. CHAIRMAN FLEGAL: What's that have to do with filing the noncompliance? MS. RAWSON: Well, it doesn't prejudice you any. I think you can still come back and fine them. CHAIRMAN FLEGAL: No, we fine them -- MS. RAWSON: You can still come back and impose your fines. CHAIRMAN FLEGAL: Okay. But in passing time, what bothers me is the longer we go and we haven't instituted the order with the lien. MS. RAWSON: That's the more fines that you can impose. CHAIRMAN FLEGAL: But until we impose the order with the fine, the lien doesn't start running. MS. RAWSON: Well, that's a question of law that is going to be contested. The lien doesn't start running, that's correct, but the fines started running. I mean, they're going to come back and argue about whether it should have or not. But because Page 122 January 27, 2000 there's litigation and because it's in the federal court, because I think they've worked out an agreement whereby they think they're going to obtain compliance, then they're going to come back and have the argument about the fine. Is that pretty much MS. ARNOLD: That's correct. We have been advised that this would be the best course of action for this particular case, to postpone the imposition of fines until a later date. CHAIRMAN FLEGAL: Okay. I'll have to hear that argument from Mr. Manalich when he gets in front of me. I'm not leaning that way, but -- MS. RAWSON: Well, it's Mr. Rynders' argument, not Mr. Manalich's, but-- CHAIRMAN FLEGAL: I mean, I don't think that's the best course of action, but -- okay. It's not on the agenda. We were curious. We'll wait. I think it could hurt more than help. Dagoberto. MS. ARNOLD: Okay. The next item is Board of County Commissioners versus Dagoberto and Marie Saldana. This case was before the board back in December. And at that time, the respondent agreed to have the staff remove the unlicensed vehicle, and we've done so. The board's order indicated that the fines would include the time and -- put in by staff, so that is what's before you. There is an Affidavit of Compliance as well as imposition of fines. CHAIRMAN FLEGAL: So you're asking us to do two things, one, impose the fines, and approve the Affidavit of Compliance? MS. ARNOLD: Correct. CHAIRMAN FLEGAL: Okay. First on the imposition of the fines. Do I have a motion to impose the fines as recommended by staff? MR. PONTE: I so move. MR. LEHMANN: I'll second that motion. CHAIRMAN FLEGAL'. We have a motion and a second to impose the fines. And they do include the administrative costs? MS. ARNOLD: Yes. MR. LEHMANN: Do they include the removal cost? Page123 January 27, 2000 MS. ARNOLD: Excuse me? MR. LEHMANN: Do they include the removal cost? MS. ARNOLD: Yeah. There was no cost to us. MR. LEHMANN: No cost. I like that. CHAIRMAN FLEGAL: So we have a motion and second to impose the fines. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN FLEGAL: We also have a request on the same person to accept the Affidavit of Compliance. They have complied with the requirements. MR. LEHMANN: I would move that the board accept that affidavit. MS. DUSEK: I second. CHAIRMAN FLEGAL: We have a motion and second to All those in favor, signify by accept the Affidavit of Compliance. saying aye. (Unanimous vote of ayes.} CHAIRMAN FLEGAL: Let's see. Compliance for Smuder Faust. We have an Affidavit of MS. ARNOLD: Yes. If you recall, this item was before you -- CHAIRMAN FLEGAL: The planting of one tree. MS. ARNOLD: Yes, the planting of one tree, and it is compliance as so ordered by the board. MR. LEHMANN: May I just -- MR. PONTE: How big is the tree? CHAIRMAN FLEGAL: I have one question, because our order said that he was to -- MS. ARNOLD: Plant one tree. CHAIRMAN FLEGAL: Well-- MS. ARNOLD: The particular order was a requirement to plant a tree and to maintain the shrubs. There was a question of some -- CHAIRMAN FLEGAL: Planting of one tree, and by removing dead shrubs or bringing them back to life, according to ordinance requirements. So I assume he planted the one tree and removed the other shrubs or-- I mean, this hasn't been that long ago, so I Page 124 January 27, 2000 don't know if you can bring them back to life in -- MS. ARNOLD: He probably replaced them, but I can't say factually. CHAIRMAN FLEGAL: Okay. That was going to be my question. If you take plants out, then he still would be in violation of his landscape plan. Did he put new plants in? MS. ARNOLD: Yes, he replaced the ones that were dying. I don't know if that's what he did for a fact. But the investigator that went out that was the one that testified before you, was the one that recommended the, you know, replacement of the dying shrubs, and so I would imagine she wouldn't have closed the case had it not been complied with. CHAIRMAN FLEGAL: Okay. I just -- I want to be sure, because I don't want to close something and then find out that he didn't put the plants in. MS. ARNOLD: Yeah. CHAIRMAN FLEGAL: Okay. So we have a motion to accept the Affidavit of Compliance for Smuder Faust? Do I hear a second? MR. LEHMANN: Second. MR. PONTE: I'll second. CHAIRMAN FLEGAL: We have a motion and a second. All those in favor, signify by saying aye. Our next meeting is scheduled for February 24th. And since we didn't have our workshop on the count -- from the county staff today, we're going to have it at that time. Hopefully we'll have a less volatile schedule, for lack of a better word. Today Ms. Rawson has agreed to give us a little rules and regulations. MS. RAWSON: What I propose to do -- and we need to decide if we need to have this on the record. I'm going to give you a packet of legal materials that I was going to go through with you, but I know you're hungry, so I'm not. I have your rules and regulations. There's one for you and Maria too. There will be some leftovers. There's a number of statutes and ordinances in there, and I'll just run through and tell you what they are. You can read Page 125 January 27, 2000 them over our month break, and I'll give you a test on them next month. But we are going to discuss the proposed changes to the rules and regulations, and I guess we need to know whether we need that on the record or not. CHAIRMAN FLEGAL: Well, the rules and regulations are under the ordinance. We come up with them, so I guess legality-wise, is doing the rules and regulations something we must do, quote-unquote? Since we're meeting, I assume it falls under the sunshine and we have to do it in the open. MS. RAWSON: I think so, and the discussion I think on the proposed changes to those rules and regulations probably should be on the record, since we have a fresh reporter. Probably not fresh anymore. If I could call your attention to the packet I've handed out. I think I threw a letterhead in there, because I didn't have any cards with me at home last night, so that everybody knows how you can contact me, if you wish, and also you can on write that because it's just a Xerox copy. I've put some rules and regulations in there. I started with the chapter 162 and went right through it, then I put the corresponding county ordinances behind that. The last thing in your packet is a little bit about the Sunshine Law. Most of you are experienced board members and know this stuff, but there it is, and so I would invite you to read it all. Basically I also threw in an answer to some questions I did. I think it was for the south board, when they asked me the question as to whether or not they could go out and look at the site before you came to the meeting. And so I threw that -- the answer is, it's not a good idea, and my advice is no. But the Sunshine Law, basically, you need to read, because you cannot discuss these cases before, during or after the hearing with each other or with anybody that's involved here in this commission chambers. Everything that you discuss about any of these cases before you make your decision has to be in the sunshine, on the public record. Most of you know that, but I just threw all the law in there so you would know. Page 126 January 27, 2000 Now, back to the rules and regulations. I have -- I'm going to go through them with you. In boldfaced print, I put some of your suggested changes, not my comments about your suggested changes. I'm going to tell you that. But just some of your suggested changes, and then some of my own. The first suggested change was that rules and regulations be changed to operational guidelines, and then there's a corresponding number of changes throughout the body of the rules and regulations calling them operational guidelines. And before you have your discussion about that, I just wanted to point out to you that Florida Statute 162.08 says that you are to make rules and use the word rules. Ordinance 92.80 says that you are to make -- and this is the words they use -- rules and regulations. So you just need to be cognizant of that before you decide if you want to change it to operational guidelines. That's the first proposed change. Jurisdiction. Proposed changes probably that don't make that much difference in terms of substance are under article two, jurisdiction. Instead of the board has, the board shall have, jurisdiction over those matters, and in parentheses, the word violations has been suggested as a change. Now, you need to think about that one, because we talk about matters that aren't necessarily violations, and so that might restrict you too much. I think that was all on the first page. On the next page, on top of the page under section two, the proposed change, we're talking about who gets to be the chairman -- or chair, excuse me, ladies. It's certainly not like me to be in the least sexist. A candidate receiving a majority vote shall be declared elected and shall serve a term of one year, proposed change, but not limited to one year. There's nothing in the statute under 162.05 or ordinance 92.80 that would prohibit you putting that language in there. They only tell you about what terms you shall serve and what classification of businesses shall be on the board. The next change is under meetings, article five, under section one. This is obviously a change that we need to make. Page 127 January 27, 2000 The regular meeting of-- and it should be code enforcement instead of north and south -- is, the fourth Thursday each month at nine o'clock instead of 8:30. That is a change you made actually to accommodate me, and I appreciate that. And then another proposed change is, or at a time determined by the board. There's nothing in the statute that would prohibit you from making that change if you desire. And then omit the rest of the sentence which, of course, is necessary because we don't have a south board anymore. That's all on that, page two. On page three, article -- well, sorry. Section eight. Again, the word guidelines instead of rules and regulations. Under article six, order of business, on page three, the order of business as stated currently in your rules and regulations is not exactly the format that we follow on your agenda. So almost all of you who gave me suggestions made the same suggestions that we make that look like your regular agenda. There is no prohibition in the statute from your doing this, because there's a certain amount of things that you must do as a board, and changing the agenda, as long as it covers what you have to do, is fine. Page four, section seven -- well, article seven, section three. And most of you properly pointed out that we must add posting on the property. As you will recall, there was a change in the ordinance so that it would comply with the state law so that we would be allowed to post both on the site and at the county courthouse, so we do need to amend the rules in order to include that in that paragraph. Now, the next one's interesting. The secretary shall deliver the notice in a manner which would enable an alleged violator to receive a minimum of 15 days. Fifteen days is a number that the boards who approved this came up with with the help of the people who worked on these rules. There's not a statutory requirement of a number of days, and I know that this was a discussion. The posting statute says ten days. And then the Notice by Publication says four consecutive weeks. But if you're going to Page 128 January 27, 2000 do certified mail, hand delivery upon a party, that number is going to be up to you. But it -- you need to think about the number of days. Now, another suggested change was, as required by the ordinance and the statute. Again, the ordinance and the statute don't tell you when you have to give it to them per se. It only says the posting, 10 days, and the Notice of Publication, four weeks. Let's see. Section -- MR. PONTE: Before we go on -- hold on -- to section four -- MS. RAWSON: Yes. MR. PONTE: On the days, back to the days. I think that earlier on we did have a different set of days. And then when Richard had suggested changing the days or maybe he -- MS. RAWSON: I think it was once 10, wasn't it? MR. PONTE: Yeah, to expand it. So we don't want it less than the 15. MS. RAWSON: I know there was a lot of discussion about this. And even though I was the attorney for the south board, Richard and I talked a lot so that we were always doing the same thing between the two boards. And I believe at one time it was 10, and we may have changed it to 15 to expand the time. MR. PONTE: Your recommendation would be? MS. RAWSON: Well, I don't have any problem with the 15. MS. ARNOLD: The question that came up, I believe, was when we had a particular case that -- CHAIRMAN FLEGAL: Correct-- MS. ARNOLD: -- that we were one day -- CHAIRMAN FLEGAL: -- because I was the one that came up with, as required by ordinance or statute. And the reason being, we had one case come before us, and their attorney got up and he said, you only gave us 14 days, not 15 days, and you know -- so I said, well, we can fix that if we change these. Let's just do what the ordinance or statute requires. Because if we put a number in there, we've locked ourselves into a number. Where if we-- MS. RAWSON: The ordinance or statute doesn't give a Page 129 January 27, 2000 number. CHAIRMAN FLEGAL: Correct. Isn't that sweet? So then we can't get trapped, can we? Since the ordinance doesn't say, it's whatever number we come up with. MS. DUSEK: But then you wouldn't be able to say according to ordinance, because there is nothing there. CHAIRMAN FLEGAL: Well, she said it says 10 days in one of them. MS. RAWSON: Well, no, that's for posting. MR. LEHMANN: You're almost creating a loophole that's continuous. CHAIRMAN FLEGAL: Well, posting or delivering, because it says you can send it out by certified mail receipt or hand deliver, SO -- MS. RAWSON: You've got to post it 10 days, and you've got to -- if you publish it, it's got to be four consecutive weeks. It doesn't say how many days for hand delivery or certified mail. CHAIRMAN FLEGAL: Correct. MS. RAWSON: And so that's a rule that you can decide upon and discuss. MR. LEHMANN: I think the board just needs to consider the respondent and how he's trying to respond to this Notice of Hearing. Now, does it give them enough time to actually respond and be here? Because it's more beneficial if the respondent's here. MS. RAWSON: Well, now, if you look at the next statute -- it does make a difference. Because if you look at section four, about the second sentence in there, in order to have the information provided to the board members prior to the board hearing, the alleged violator must submit his or her information to the code enforcement official four days, and then the suggestion is that we change that to seven days, prior to the scheduled hearing. So you need to be able to inform them about the hearing, get the packet to them, and give them an opportunity to get the defense packet back to our staff, and then the staff time to Xerox all of this and get it to you. So count backwards, I guess. Page 130 January 27, 2000 MR. LEHMANN: If we change to the seven-day deadline in section four, does that mean we'll get our packets any earlier? MS. RAWSON: I can't answer that question. MS. ARNOLD: Yes. CHAIRMAN FLEGAL: If we use the seven days, is the t5 days still logical? If we leave it 15 and change it to seven? MS. RAWSON: I'm going to let all of you discuss this and get staff"s input, because we need to accommodate staff as well. And so I guess I'll let them answer that question if they have enough time. I'm just pointing out what the rules now say, what you've suggested changes for, and then there's a couple in here where I might make a comment. Page five, under seven, prehearing procedures, section one, scratch out at least 15 days. Actually that was already changed and I've got an old disk, I think. We suggest that they have a prehearing conference. Actually that happens a lot of the time. People are always talking to Michelle before they get here. And at one time, we had in there at least 15 days, and I think that's scratched out. I don't think that's in our current bylaws or rules and regulations anyway, and I don't think it has to be. People have to be reasonable. If you have those other time limits set, you know, then they know they better talk if they want to talk. Section two, prehearing motions. MR. LEHMANN: Jean, before you move from section one. MS. RAWSON: Yes. MR. LEHMANN: Is that section even relevant to the rules or the guidelines of the board? MS. RAWSON: Well, I'll tell you why that's in there. We've had a number of big cases over the past, let's say, 10 years in which numbers and numbers of attorneys were involved. And because this is government by, in the sunshine, a lot of things get taken care of in a prehearing conference to expedite the hearing when it gets before you. And I attended actually, when I was the chair, many of those -- many of those prehearing conferences. That's why it's in there, because we've had a number of them. At one point in time, Page 131 January 27, 2000 before Michelle was lucky enough to be our leader, we had 15 attorneys on one case. Maria remembers. MS. ARNOLD: How did you get anything done? No, I'm just kidding. MS. RAWSON: So it's there if you want it, but it isn't mandatory. You see it says, encouraged. MR. LEHMANN: Well, that's my point. I mean, the first sentence says the alleged violator, code enforcement are encouraged to have a pre -- should we maybe reword it and make it mandatory or say, you can do whatever you like or -- MS. RAWSON: I would make it mandatory. Just think back to the numbers of cases you heard today. Do you want all of those people to have a prehearing conference? MR. LEHMANN: And that's what I'm saying is if we make it mandatory, we just create a heck of a burden on these people. MS. RAWSON: Well, I think you can change the word encourage, if you'd like. But I think it's an option, and in some cases, I think it's a good option. MR. LEHMANN: I was thinking just delete the first sentence in its entirety and start with code enforcement officials shall contact the alleged violator, but determine if the hearing is relevant. MS. ARNOLD: The way it's worded, it is encouraged. It's not mandatory. MR. PONTE: Yeah. It says encourage. MR. LEHMANN: That's a moot point now. MS. RAWSON: Down to section two, prehearing motion. Ten days, actually, is wrong. It's five days. Again, I was working off an older disk, so that really says five today. And the person filing the motion shall provide the board's attorney with -- it says seven copies. My suggestion is that you make it nine, because there are nine of you. Or right now there are only eight, but soon there will be nine. And -- MR. LEHMANN: But you also have yourself, staff -- CHAIRMAN FLEGAL: Yeah. MS. ARNOLD: Yes. MS. RAWSON: Yeah. And we need to give one to me. Page 132 January 27, 2000 MS. ARNOLD: And the court reporter -- and the court reporter. MS. RAWSON: So it's at least 11. MR. PONTE: Oh, make it a dozen. MR. LEHMANN: Well, again, it's the cost of producing all this to the respondent. MS. RAWSON: It is. MR. LEHMANN: So we don't want to -- MS. RAWSON: We need to have as many as we need, but seven's not enough is my suggestion. CHAIRMAN FLEGAL: I guess the obvious question -- and maybe I've missed where it is -- how do we impose these rules and regulations on the violators? MS. RAWSON: Well, they get a copy. It says right in your rules that they get a copy when they get their packet, or maybe with the Notice of Violation they get a copy. CHAIRMAN FLEGAL: I guess what I'm saying is, how do we -- under what -- I know under the ordinance it says we will develop rules and regulations, but how does our rules and regulations get enforced on them? MS. RAWSON: Well, they get a copy of them, so they are presumed to have read them and understood them. And then when they don't follow them in a hearing, of course, and you find that out, or whoever the chair is, you can discuss it at that time and decide whether or not they're not going to get their case heard today or whatever. If they didn't bring packets in -- and, of course, we are very lenient about that when they come walking in here with things. If they didn't bring packets in and it's an attorney and they've got 5,000 things they hand you when they get here, you have the perfect right to say, wait a minute, our rules and regulations says we had to have that in advance, you know. We can't speed read here when you give us 50 pages, as opposed to this couple who brought their pictures in that you can look at. And so you have a lot of discretion as to what you can do. But you can certainly enforce these rules. And I would suggest strongly that you do so when there are attorneys involved, Page 133 January 27, 2000 because they know better. Let's see. On page six, the top, it's charges and changed to violations, which is fine. I don't have any problem with that. Page seven, top of the page, under one, it was -- MS. ARNOLD: Can I interrupt for just one minute? MS. RAWSON: Yes. MS. ARNOLD: I know that at one time we discussed paragraph E, the testimony time. I didn't know whether or not that wants to be -- MS. RAWSON: Well, we did. We can talk about that. We had limited it to five minutes, that's because there were times we had a hundred people in here and they all wanted to talk. So that's something that -- put a little mark by that. That's something we need to talk about too. MR. PONTE: What if it said, may be limited to as opposed to shall be? And then you have the option, if you don't have very much on the docket, then you can give people time. MS. ARNOLD: A part of how the Board of County Commissioners does it, they actually have that on their agenda, and we could amend our agenda to include in there whether or not -- just to inform the public that their time may be limited, because I know that in the past that we've been -- although I don't believe it was true, we've been accused of not granting somebody their day in court, and we've not limited it to five minutes and -- since I've been here, and I don't think we have, but there may be sometime, depending on the case, that you want to limit it, and we need to inform the public that that's something that we could possibly do. MR. LEHMANN: Do you have timers available? do. I'm sure you MR. PONTE: They're on. CHAIRMAN FLEGAL: It's right up there. MS. ARNOLD: Yeah. CHAIRMAN FLEGAL: I would say, let's put it on the agenda so when we open the public hearings, that would be one of the first things we say, you know, public hearing is opened and public is advised that -- Page t34 January 27, 2000 MS. RAWSON: That their testimony may be limited to five minutes. CHAIRMAN FLEGAL: Right. MR. LEHMANN: One of the problems that we have as a board is that these cases take so long because we keep getting sidetracked, and I'm as much to blame as everybody else in doing that, but maybe this will help us keep, especially the respondent, on track, such as the case we heard that involved -- MS. RAWSON: Well, this is not the respondents that are limited to five minutes. This is the public. MR. LEHMANN: Oh, I got ya. Just witnesses. MS. RAWSON: This is when they're mad at the developer and there's a hundred condo dwellers out here, and they all want to talk. We can't really limit the case as presented by the respondent. That would really be a violation of their due process. MS. TAYLOR: How about no videos? MS. RAWSON: I suspect that's a violation as well. But now, I will tell you this, although the rules of evidence are relaxed in a code enforcement board meeting, you certainly have the right to say, if it's not relevant to the issue at hand, you can limit it. I mean, there's nothing wrong with your doing that, because you have to be reasonable here. MR. LEHMANN: We need to vote on its relevancy -- MR. PONTE: It's a tough call. MR. LEHMANN: -- is that correct? MR. PONTE: I mean, given the videotape -- MS. RAWSON: Well, you didn't know what's on the video. It's a lot easier when they hand you something to look at. You know whether that's relevant or not. MR. PONTE: Right. MS. RAWSON: But you don't know what's on the video. I had a pretty good idea. MS. TAYLOR: We did know. MR. PONTE: After you've said yes -- MS. TAYLOR: We did know. MR. PONTE: -- can you stop it? Page 135 January 27, 2000 MS. RAWSON: You could, and he agreed. That was fine. He agreed. MR. PONTE: Okay. MS. RAWSON: And I think the question was asked probably by Peter, is the rest of the video just like what we've seen. And, you know, it's clearly not relevant. Page -- we talked about changing that to May. Page seven under enforcement, section one -- well, actually it was on the top of the page. Under number one, filing an order. Someone was smart enough to figure out we have had that in there wrong all this time. It should be filing an appeal. MR. LEHMANN: Thank you. MR. PONTE: Where are we? MS. RAWSON: Top of page seven. I never noticed that before, that we put the wrong word. That is definitely a correction that needs to be made. It's not filing an order, it's filing an appeal. Article 10, under enforcement, section one, in addition, the violator will be ordered to pay operational and/or prosecution costs. We do that. That's a good change. I support that. Section five, I guess I forgot to put it in boldface print when we typed it. It includes the second -- third sentence. If the board decides to impose a fine, and operational or prosecution costs should be included in there. Miscellaneous, again, the change in calling it rules. Top of page eight. This one is very interesting. Suggestion, a manner not inconsistent with county policy, and someone suggested that we put good business practice. I would certainly think that county policy is always good business practice, but we can argue about that one. During a regular meeting by the affirmative vote of at least four members, and someone suggests that we put -- or a quorum. Four members is a quorum. And if you look back into your rules on section five, it tells you that four is a quorum. So if you want to define four members being a quorum, again, you can, but it's the same thing. And then someone suggested that we omit the last part of Page 136 January 27, 2000 the sentence. Provided notice of the proposed change is given to the board at a preceding regular meeting. You need to think about that one, whether or not you want to know in advance, thirty days in advance, or whether or not you want to do it at the same meeting. Let's see. What else? And of course, section six, the rules shall be discussed, updated if required, probably that's a very good addition. And then we need to change the whole bottom part to omit south and north and just call it the code enforcement board and only have the one list for your signatures. On the bottom of page nine I added -- because I didn't exactly know where to stick it. There was a suggestion that we put the repeat violator language in our rules and regulations. It's part of the statute. It's not necessary, you know, but if you want to put it in there, you tell me where you want to put it and how you want it to -- I don't have any problem with anything that's part of the law in here. If you want that in there, you can certainly discuss that. That's an outline of the rules and regulations as they presently exist with the proposed changes that some of you have already given me in writing, a couple that I've made. And so now I think you should open it up for general discussion, and then you might want to think about this until the next meeting before you actually pass it. But we need to get input from those of you, especially those of you who are new on the board, as well as staff before you tell me to do the final draft. CHAIRMAN FLEGAL: Question. On the last page where we talk about allowing the board to re-review a violation not brought into con -- we could do that anyway? I mean, what stops us from doing that, or why would we need it in there? I'm confused by -- MS. RAWSON: What number are you looking at? CHAIRMAN FLEGAL: On the back of page nine. MS. ARNOLD: The suggestion. CHAIRMAN FLEGAL: In addition to the repeat violator, it says, as well as a provision allowing the board to re-review violations not brought into compliance but for which fines are being paid. Page 137 January 27, 2000 MS. RAWSON: It's in boldface print because one of you, in writing, made that suggestion, so I -- CHAIRMAN FLEGAL: Can we not do that anyway? I mean -- MS. RAWSON: Yes, you can. CHAIRMAN FLEGAL: I'm confused. MS. RAWSON: The suggestion was that -- and the repeat violation definition is in the statute. The suggestion was just made that those things be added to the rules, but that's up to you. MR. LEHMANN: Mr. Ghairman, I hate to do this, but if we're going to sit here and discuss it, could I request maybe a 30-minute recess to kind of get myself back on track? CHAIRMAN FLEGAL: We're not going to discuss it. MS. RAW$ON: I'm just -- CHAIRMAN FLEGAL: I think she wants us to go home and digest it. MS. RAWSON: I do, for several reasons; one, I know you're hungry, and, two, I had an appointment at 1:30. MR. LEHMANN: Pardon me. I'm fading here because of the lack of food here. MS. RAW$ON: Gould be. And I don't want you to make any mistakes, and I want to be sure that you have digested it, especially since we have two new members on this board, although one's an experienced board member, and because Ms. $aunders is not here, and I'm sure she's going to have, you know, some suggestions, too, if you'll go home and read through the rules and regulations. If you have additional suggestions, that maybe you could fax them to Michelle, so that at our next meeting, if we don't have too many hearings and our other workshop doesn't take too long, we can really finalize them, because at the March meeting, we're supposed to have election of officers, and it would be -- and I think it says in here, too, that at the March meeting you will review the rules every year. At your annual meeting you're going to review the rules. And so if we could, by March, have new rules that I could have you sign, that would certainly be the thing to do. GHAIRMAN FLEGAL: Okay. We can do that. Page 138 January 27, 2000 MS. TAYLOR: I have one suggestion, and I'm sort of -- maybe it's a request. But when somebody has a request to ask and you don't think it's pertinent, don't jump right down everybody's throat, that has nothing to do with it. But maybe it does. You don't know what's behind my head. I have a reason for asking a question. And I don't like anybody jumping down my throat saying that has nothing to do with it, because it does, and that has happened to all of us. And I just really wish that everybody would stop and think before they say, that has nothing to do with this. It is embarrassing for one thing. I don't appreciate it at all. CHAIRMAN FLEGAL: Michelle, I have one question. How are we doing on our foreclosures? MS. ARNOLD: I haven't heard anything from the County Attorney's Office. I know that they -- I know that they filed for one, but the rest of them, no. CHAIRMAN FLEGAL: Could you turn the heat up on that? I mean, we had a big long list, and it's been probably a year since we brought this up, and only to have one foreclosure filed is a little ridiculous to me. Foreclosures aren't that tough to do. I've done a few, so -- could we find out why they're taking so long or what they're doing? MS. ARNOLD: So are we postponing the rest of the workshop? I'm sorry. I was out of the room for part of that discussion. MS. RAWSON: What we're doing is, because they're hungry Me too. -- we're going to digest the rules and MS. ARNOLD: MS. RAWSON: regulations, we're going to look at the proposed changes, think about if we have any others. I suggested to them that they fax any other proposed changes to you. And I really think we should have staff input if any of you have any proposed changes. Bring it back for discussion. If you -- keep the copy that I just gave you, bring it back for discussion next month, so that if we can then finalize them, I can have them prepared and ready for you to sign at the March meeting, because it does say that every March Page 139 January 27, 2000 we're going to review our rules. And it would be nice, because that's the day we're supposed to elect officers, that we have new rules and regulations go into effect. MS. ARNOLD: Okay. MR. LEHMANN: Jean, are you prepared to give us a workshop today also, or was this your workshop? MS. RAWSON: Well, I was going to go through all the law with you, but I could see I would lose you very quickly. So I said in lieu thereof, I'm going to give you a test next month. MR. LEHMANN: I tell you what. I mean, I, for one, would like to see your workshop, but I'd like to take a half hour recess and then come back to it, if that's alright with the board. MS. RAWSON: Well, I'll tell you what I'll do. If you read those rules, those laws, I'll be happy to give you the thumbnail overview of what they say and what the cases have said about that. That's what I was going to do today. I'm not going to read to you. But if you had read the law first, boy, wouldn't we be ahead of-- CHAIRMAN FLEGAL: I think we can -- MR. LEHMANN'. Okay. CHAIRMAN FLEGAL: -- add that to the next month, give everybody a chance to -- I think we've all sat long enough and been harassed long enough, and we're hungry. I would entertain a motion to depart. MS. DUSEK: I make a motion that we adjourn. MS. TAYLOR: I second it. CHAIRMAN FLEGAL: Motion and a second. All those in favor, signify by saying aye, please. (Unanimous vote of ayes.) There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 2:48 p.m. Page 140 January 27, 2000 CODE ENFORCEMENT BOARD CLIFFORD FLEGAL, CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC., BY DAWN BREEHNE AND TERRI LEWIS, RPR Page 141