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CEB Minutes 06/22/2000 RJune 22,2000 TRANSCRIPT OF THE MEETING OF THE CODE ENFORCEMENT BOARD OF COLLIER COUNTY Naples, Florida, June 22, 2000 LET IT BE REMEMBERED, that the North Code Enforcement Board, in and for the County of Collier, having conducted business herein, 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: CHAIRMAN: Clifford Flegal Roberta Dusek Kathryn M. Godfrey Peter Lehmann George Ponte Diane Taylor NOT PRESENT: Don W. Kincaid Darrin M. Phillips Rhona Saunders ALSO PRESENT: Jean Rawson, Attorney, Code Enforcement Board Michelle Arnold, Code Enforcement Director Maria Cruz, Enforcement Official Page I 05/12/00 10:05 FAX g41 403 2345 COMMUNITY DEVELOPMENT ~ CLERK OF DRD [~00! C_ODE ENFORCEM~ENT / NUI £ S~C ~ ABATEMENT BOARD F0_~0~!~ _~r~., ,. FLORIDA A~~A Date; J~e 22, ~0uu at 9;00 o'clock A.M. ~e,.,e~ Ad~m~. Bldg 3rd Flo~r Cux~er County GoverDment m ~ ~ LOCation: ~' ' ' NOTE: ANY PERSON WHO DECIDES TO APPEAL A DECiSiON OF THIS BOARD WILL },~EED A RECOP~ OF TME PROC~EDiIqGS PERTAINING T~ERETO, ~D T~EREFOR~ ~A¥ NiEED TO ENSURE TMAT A VERB,%TIM RECORD OF TME PROC~EDING~ IS MADE, W~ICN RECORD INCLUDES T~E TESTIMONY AND EVIDENCE UPON W~ICH TME APPEAL IS TO B~ BASED. N-EITHER COLLIER COUNTY NOR THE COD~ ENFORCEMENT BOARD SHALL BE RESPONSIBLE FOR PROVIDING THIS 2_ AP__EBDvAL OF AGSNDA 3. app~¢VAL OF ~NTU~S~ May 25, 2000 pLr~L ~ ~FJtR INGS A. BCC vs. Jack Hail B. ~ ~ Mario D and Ninet=a Magistro C BCC v~. Robert L. & wilma J. iverson D. HCC rs_ Douglas E. & Cassandra L. Jit~o CEB ~' · ,o. 2000-016 C~B No. 2000-017 CEB NO. 2000-018 C~B No. 2000-019 5. N~NESS Re~ue~ ~or Reduction of F~nes A. BCC vs. Epifanio H. Heru~ndez and Manuel ~. Hernandez CEB No. 99-044 OLD n~ REPORTS A. nuu rs. ~w~==,,~ H. Hez~,.andez and ~anue! H. ~rnandez B. BCC rs. James Keiser and Southern EXposure OK Naples, ~nc. C- CEB Cases Status Re~or~ D. For~c!osures E. Guide ~o the sunshine Amendmen~ and Code o~ E~h~cs CEB No- 99-044 CEB NO. 98-005 8. COMMENTS DATE July 27, 2000 12. ~.DJOUF~ June 22,2000 CHAIRMAN FLEGAL: It's 9:00. We'll call the Code Enforcement Board to order. Please make a 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. Roll call, please. MS. CRUZ: Good morning. For the record, Maria Cruz, code enforcement investigator. Please let the record show that Don Kincaid, Darrin Phillips and Rhona Saunders will be absent. Roberta Dusek? MS. DUSEK: Here. MS. CRUZ: Clifford Flegal? CHAIRMAN FLEGAL: Here. MS. CRUZ: Kathryn Godfrey? MS. GODFREY: Here. MS. CRUZ: Peter Lehmann? MR. LEHMANN: Here. MS. CRUZ: George Ponte? MR. PONTE: Here. MS. CRUZ: Diane Taylor? MS. TAYLOR: Present. MS. CRUZ: Thank you. CHAIRMAN FLEGAL: Let the record reflect since we have some members absent, that Ms. Godfrey as an alternate will participate today. Agenda as submitted. Are there any changes, additions, corrections? MS. ARNOLD: For the record, Michelle Arnold, code enforcement director. Yes, there are some changes. Item 4-A, Board of County Commissioners versus Jack Hail is in compliance, so we're removing that. 4-B, Board of County Commissioners versus Mario D. and Ninetta Magitro is going to be continued. We found a problem with the notice that was sent. Page 2 June 22, 2000 And 4-C, Board of County Commissioners versus Robert L. and Wilma J. Iverson is in compliance, so that also is going to be removed. CHAIRMAN FLEGAL: Great. MS. ARNOLD: I'd like to make one additional addition to the reports. So it will be Item F. I'm just providing for the board the annual advisory board review report that was submitted to the board -- or will be submitted to the Board of County Commissioners for this board. CHAIRMAN FLEGAL: Any other changes? MS. ARNOLD: That's all I have. CHAIRMAN FLEGAL: I'd entertain a motion to accept the agenda as revised. MR. PONTE: So moved. CHAIRMAN FLEGAL: We have a motion to accept the agenda as revised. Do I hear a second? MS. DUSEK: Second. CHAIRMAN FLEGAL: And a second. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Thank you. Approval of our minutes from May 25th meeting. Any changes, corrections? Hearing none, I would entertain a motion to accept the minutes as submitted. MS. DUSEK: I'll so move. MR. PONTE: I'll second. CHAIRMAN FLEGAL: We have a motion and a second to accept the approval of the minutes from our May 25th meeting. All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Thank you. We'll now open our public hearings. First case is 2000-019. MS. CRUZ: Case 2000-019, Board of County Commissioners versus Douglas E. and Cassandra L. Jimmo. The alleged violation brought before this board today is a violation of Section 91-102 -- excuse me, Ordinance 91-102, Sections 2.6.7.1.1. and Section 2.6.7.2.1. Page 3 June 22,2000 The alleged violation is the outside parking storage of unlicensed vehicles and boat trailers. It is -- exists at address located at 3408 Guilford Road, Naples, Florida, and is more particularly described as Guilford Acres, Block B, north 117.3 feet of Lot 17. The owner of record is Douglas and Cassandra Jimmo. Their address of record is 3408 Guilford Road, Naples, Florida. The violation was first observed on March t6, year 2000. A notice of violation was provided to the respondent on March 16, the year 2000, via personal service. The order to correct stated violation to be corrected by March 23rd, year 2000. A final reinspection was conducted yesterday, June 21st, and results were the violation remained. Please let the record note that the respondents are not present. The -- both notice of the hearing and notice of violation were posted at the subject property and at the Collier County Courthouse. I would like to request that the packet that was provided to the respondent, as well as to the board, be admitted into evidence at this time as marked Composite Exhibit A. CHAIRMAN FLEGAL: Okay. I have a question first. Ms. Rawson, since we don't have anything by certified mail but we do have the posting requirement met, may we proceed? MS. RAWSON: Yes, you may. That would meet the requirements of the law. CHAIRMAN FLEGAL: Okay, thank you. The evidence package will be admitted. MS. CRUZ: Thank you. At this time, I would like to call Investigator John Kelly to the stand, please. (Speaker was duly sworn.} MR. KELLY: Good morning, members of the board. My name's John Kelly, Collier County code enforcement investigator. On March 16, I was summoned to the property that was described by Ms. Cruz, alleging outside storage of vehicles without tags. Upon my arrival on that date, I had observed six vehicles with no tags -- automobiles. One automobile with an expired tag, and two boats and a trailer -- or rather two boat and trailer combinations in the rear yard. Both of the trailers displayed Page 4 June 22, 2000 expired tags. At that time a notice of violation was served upon Cassandra Jimmo, which specified must obtain appropriate current valid tags for all the vehicles and the trailers in question, or have them removed from the property, or keep them within a completely enclosed structure, of which there is none on the property. Since that time, there's been steady progress. My last -- I have had verbal communication with Ms. Jimmo. She finds herself in a hardship. She tells me that her husband left and she has no idea where he is. He just took off. And he -- she states he is responsible for the vehicles. None of the vehicles or the trailers remaining on her property are under her control. She is the person residing at the residence at this time. In speaking with her yesterday, she said she just arrived back from a death in the family. Got back in town. She had not visited her house yet. She was at her parents. And yesterday I did observe that the violation did continued -- or rather did continue as there were two -- let's see, one vehicle without a tag, one fully enclosed structure -- one fully enclosed trailer without a tag, a -- and two boat and trailer combinations in the rear yard, again displaying expired tags. When I returned to the office, I gave Ms. Jimmo a call at work, and she had stated she had no idea these vehicles were brought onto the property. These are not the -- other than the two boats, the vehicles are different than what was there when I was there the first time. So she's alleging she has no idea how the vehicles got there. She did explain that she was unable to attend today due to work and her present situation. So as of yesterday, the violation does continue to exist, however. CHAIRMAN FLEGAL: Okay. When you went there on the 16th of March and wrote up the seven automobiles and the two boats, trailers, of those nine vehicle types -- as of yesterday, you say you were there? MR. KELLY: Yes. CHAIRMAN FLEGAL: Of those nine, what is still there? MR. KELLY: Of those nine, the only thing that remains is the boat and trailer combinations, the boat trailers displaying expired tags. Page 5 June 22, 2000 In speaking with her again yesterday, she said the boats are not hers. MR. PONTE: Inspector Kelly, does this rotation of vehicles through the property -- to me it suggests that it's a used car lot or something of that order. MR. KELLY: Anybody's guess. MR. PONTE: I see. CHAIRMAN FLEGAL: Ms. Rawson, I have a question for you. MS. RAWSON: Yes. CHAIRMAN FLEGAL: Since the citation was written and presented on March 16th and it specified specific items; i.e., seven cars and the types of cars, it names them, and the two boat trailer type combinations, items that occurred after that date can't be considered, can they? MS. RAWSON: No, they can't. The only thing we're looking at are seven unlicensed vehicles and two boat trailers. CHAIRMAN FLEGAL: Okay, so today we're down to there's two boat and trailer combinations sitting there. Anything else that's on the property has to be handled by a separate violation, which I guess hasn't been done yet. So let's -- the board needs to consider that there are two boats and their trailers that need to be removed from the property. We really can't address the other items, because they haven't been cited. MR. PONTE: Don't we have to determine whether or not they're the same boats? MS. ARNOLD: Can I ask a legal question as well? The same violation is being -- reoccurring. And we cited them for the violation. And it's the same ordinance and section that's being violated each time. MS. RAWSON: So it's a recurring violation? MS. ARNOLD: Yes. Same nature. And the case -- the notice of violation noted what was present at that time, and then the case which remained open noted when the vehicle types changed. But the same violation still occurred, so -- MS. RAWSON: Well, then we have to couch it in terms, depending on what the board finds, that it's a recurring violation, because there are other unlicensed vehicles. CHAIRMAN FLEGAL: Ms. Rawson, to be a recurring violation, I mean, we haven't found the first violation yet. Page 6 June 22,2000 MS. RAWSON: Correct. CHAIRMAN FLEGAL: And to be recurring, don't they have to write it up? They just can't say oh, there's another violation. MS. RAWSON: Well, to be a recurring violation, you first have to find a violation before you can find a recurring violation. CHAIRMAN FLEGAL: Right. But to be a recurring, don't they have to issue some type of citation? They just can't say oh, I drove by yesterday and there was a vehicle. Because the next day the vehicle may be gone. MS. RAWSON: Correct. CHAIRMAN FLEGAL: Okay. So since we have only one citation that's been issued, we're talking about two boat trailers, period. If you want to issue some more citations and come back to the board for recurring, then you could. MR. KELLY: Are you referring to notices of violation? CHAIRMAN FLEGAL: Yes. I mean, nothing's been presented to the board, so I don't see any recurring violations. First we have to find the original violation. MR. PONTE: But let me go back to my question. If we follow that line of thinking, don't we then have to make certain that the boats are the same boats? The original -- CHAIRMAN FLEGAL: Well, he had some license numbers -- MR. KELLY: I can do that. CHAIRMAN FLEGAL: -- originally for the boat and trailer combination. So if he was out there yesterday, if they're still the same, then -- I don't know if he checked the license plate -- MR. PONTE: Inspector Kelly, do they appear to be the same, or not? MR. KELLY: Okay, when I was originally out there on March 16, there was a boat and trailer displaying expired Florida Tag No. FX497C. I don't see that tag number again. However, there was a second boat and trailer displaying expired Florida Tag TRY24M. That boat and trailer was there yesterday. The second boat appears to be the first that I mentioned. However, it now displays SGX40U, expiring 3 of the year 2000. MS. DUSEK: So is that different? MR. PONTE: The new tag is also expired. MR. KELLY: They appear to be the same. However, it looks like the tags changed. MR. PONTE: But also expired? Page 7 June 22,2000 MR. KELLY: Yes. CHAIRMAN FLEGAL: Okay. Ms. Rawson, on the violation notice that was handed out on the 13th, there were no, quote, unquote, license numbers listed. So does that really-- MS. RAWSON: If it's the same automobile and the -- it still has a tag on it that's not up to date, it doesn't matter what the tag is, if it's the same automobile that you cited them for. CHAIRMAN FLEGAL: Same boat? MS. RAWSON: Same boat, same automobile, different tag, doesn't matter, as long as it's not a current tag. MS. DUSEK-' Ms. Rawson, on this reoccurring violation, since it appears that it is a recurring and although they haven't cited it specifically, does this mean that every time they change a car we have to cite -- the staff has to cite a violation? Or can we do a general violation? MS. RAWSON: Well, I think that once you find them in violation, anything thereafter is a recurring violation. MS. DUSEK: And it doesn't have to be specific with tag numbers and color of car or anything like that? MS. RAWSON: As long as there are vehicles or boats on that property that don't have current tags, that would be a recurring violation. But in order to have a recurring violation, you have to find a violation first. MR. LEHMANN: The board actually cites a violation of the code, not the actual boat. CHAIRMAN FLEGAL: But for the board to act on a recurring violation, you must -- there must be some kind of a document. Otherwise, the-- MS. RAWSON: You have to have -- CHAIRMAN FLEGAL: -- party that's violating doesn't know they're in violation, so you can't -- MS. RAWSON: Due process still applies. CHAIRMAN FLEGAL: Right, you just can't say there's a violation. You must have some kind of a certificate with their violation. They have to issue that and then they can come to the board. They just can't walk up here and say oh, yeah, they violated it. I mean, I wouldn't think that would be Kosher. MS. RAWSON: No, due process still applies. CHAIRMAN FLEGAL: Okay, you have to have a document. Okay, so we have two boats and their trailers. That's what Page 8 June 22,2000 we need to talk about. I just want everybody to be straight, because we have to give everybody a fair shot here. So Mr. Kelly, the boats and trailers, there are two. I don't care about license numbers at this point. There are two there at as of yesterday? MR. KELLY: Correct. CHAIRMAN FLEGAL: Okay. MR. KELLY: In the same -- parked in the same position as they were on the original date, March 16th. CHAIRMAN FLEGAL: Okay. MR. LEHMANN: Mr. Kelly, those -- specifically they the same two boats that were there during your original citation? MR. KELLY: At least one of the trailers has just been identified by tag number. The other, I would need to refer to my case notes, which are in the possession of Ms. Cruz. CHAIRMAN FLEGAL: Ms. Rawson said the tag really is -- MR. LEHMANN: Irrelevant. CHAIRMAN FLEGAL: -- irrelevant. And you said there were two boats and there are still two boats. So the fact that they So I think we're changed color or whatever, we didn't cite color. on pretty safe ground there. MS. TAYLOR: They're definitely violations. CHAIRMAN FLEGAL: Yes, ma'am. MS. TAYLOR: I mean, absolutely, positively. nip it in the bud right now, it's going to continue. constant turnover of something. And if we don't It will be a CHAIRMAN FLEGAL: I think at this point the board needs to establish that a violation does exist and issue an order to at least remove the two boats and trailers, and then look for staff to come back so -- with any kind of recurring, if that continues, so that we may try to get this to cease and desist, period. And I understand the owner-- MS. ARNOLD: Can I ask another question? Couldn't the board look at the fact that a violation did exist based on the notice of violation that occurred, including the vehicles without tags? Even though those vehicles are not there today, those specific vehicles are not there today, couldn't -- CHAIRMAN FLEGAL: Well, if they're not there, there's no violation. MS. ARNOLD: My question was, is that the vote -- the board Page 9 June 22,2000 finds that there was a violation of those ordinances and sections that are cited. MS. RAWSON: Technically I suppose that's -- if they believe the testimony of the officer that there was a violation on the day he had made the observation. Now, the board's job, though, is just to be sure people come into compliance. And what he's saying is in terms of those particular vehicles and boats, that today they're in compliance. So as he's presenting testimony to you today, he's telling you there were improperly licensed vehicles on the property. They are not there today. CHAIRMAN FLEGAL: Right. So he's complied. So-- MS. ARNOLD: Okay, so what -- would the board, not considering the vehicles that are -- that were in violation, because we're looking at the specific vehicles that were there the day we opened the case, we would then have to come back to the board again with the vehicles that are there today? MS. RAWSON: I think so. MS. ARNOLD: Okay. MS. RAWSON: But here's the problem: Technically they were in violation on the day that you were out there and you saw those vehicles without the tag. Today when we're presenting evidence and asking the board to make a decision, at least as to those vehicles and/or boats we are in compliance. So we need to now find out if there is a violation that exists today. And if there's a violation that exists today, then it exists. And then you need to come back, if there are recurring violations, once a violation has been found. Because there are no findings of facts or conclusions of law about those others. They could do that. I mean, they could accept his testimony and say on such-and-such day we believe that they were in violation, but they're in compliance today, so we're not going to do anything about that. But they're not in compliance on these other vehicles, or boats. MR. PONTE: Ms. Rawson, if we were to say two boats today, or violations, and the two boats were removed, the violation no longer exists, and another different kind of boat or different vehicle of some kind has moved onto the lot, if he indeed is running a used vehicle lot, we'll never catch up with it. I mean, we'll -- Page10 June 22,2000 MS. RAWSON: I understand what you're saying. MR. PONTE: -- be moving through faster than we meet. MS. RAWSON: Well-- MS. DUSEK: That was my point earlier in my question. MS. RAWSON: Well, and I think in answer to Ms. Arnold's question, you could listen to the testimony and make a finding that there was a violation that existed on the day in question when he saw those vehicles. That has been corrected. They're in compliance today. But on that particular day, they weren't in compliance, if you decide that those are your findings of facts, based on his testimony. Because they were noticed. Those are gone. Now, you can't say then therefore if you don't move these, I'm going to fine you so much a day, because they're already gone. But then it makes it easier for you to find a recurring violation next time, if that's a part of your order. MR. LEHMANN: Ms. Rawson, let me clarify something in my mind, because I'm a layperson looking at this thing. Literally a Lehmann. Does the board have the right, hypothetically, to look at a particular case and look at this case in particular right now and say -- and make a judgment that says on the date the investigator first looked at it on up to a second date where the investigator has verified that compliance has not been met, for that time period, which is prior to the board's hearing, a violation did exist and continued to exist and, therefore, find violation in that time period, even though that particular violation was corrected prior to the board's hearing? MS. RAWSON: You could do that. And because it's been corrected, it's just part of your findings of fact. There's nothing that you can do to make them come into compliance, because they're in compliance. MR. LEHMANN: Right. The only purpose of that, as I see, is just to establish the fact that a violation for other vehicles has occurred, so that should we continue to have this situation, we have the ability then to look at this case in the future and -- MS. RAWSON: Yes, you could. MR. LEHMANN: -- have a repeat violation for other things other than just the boats. MS. RAWSON: Because they were notified about those Page 11 June 22, 2000 violations at the time. Although that is now into compliance. And the reason we're here today is because they're not completely in compliance. MR. LEHMANN: Right. So in my mind, I think I -- I understand what my colleagues are saying. I just want to be perfectly clear, that we have the legal right to do that. Because this is a little bit of a departure from what we've done in the past. MS. RAWSON: I understand. And your basic duty is only to get -- if there's a violation, to get people to come into compliance. And as to these other vehicles, they have. MS. DUSEK: So today would we be making -- could we make two motions of violations: A motion of violation on the 16th for the seven vehicles that were there but have now come into compliance, and then a motion that there is a violation that still exists on the two boats? MS. RAWSON: I would suggest that you only make one motion, and that is to the violation that currently exists. CHAIRMAN FLEGAL: Two boats. MS. RAWSON: I would suggest that if you wish to put in your findings of fact that you've accepted the testimony of the Code Enforcement Board official that a violation existed on the day he was there that has now come into compliance. In other words, that's part of the findings of fact. But your order today really can only be about the things that are still not in compliance. CHAIRMAN FLEGAL: I'm a little worried that everybody seems to be -- and I understand we have a revolving vehicle problem. I'm worried that people are going to consider that when considering what to do. And you really shouldn't consider it, because you're considering something that we know has been presented to us, but the violator hasn't been addressed of that. You're kind of finding guilt before you've been told you did something wrong. MS. ARNOLD: As a part of the case, the violator has been informed that he is in violation. The case continues -- CHAIRMAN FLEGAL: On certain vehicles. MS. ARNOLD: The investigator testified that he spoke with the -- Mrs. Jimmo after different vehicles came back on the property. That was a part of his testimony. The vehicles that are there today, he again advised Ms. Jimmo that there were Page 12 June 22, 2000 new vehicles there and they are also in violation. The NOV that was issued on March 16th identifies the ordinances and sections. That still applies to -- regardless of what the vehicles are on the property today. If they don't have a tag, they don't have the appropriate registration, they're still in violation of those two sections that are cited on the NOV. And there's continual contact with the property owner throughout the case informing them of the violation. And what we typically do is not keep issuing the same notice of violations just because the vehicles change. We keep in contact with that property owner. And we've already notified him that the law says this in terms of recreational vehicles or motor vehicles. And that's a continual -- MS. DUSEK: I think where we're having a problem is the fact that this notice of violation specifies certain things. CHAIRMAN FLEGAL: My problem is just what Ms. Dusek says. Yes, you called out the section, but you also gave these people a document that says -- MS. ARNOLD: What we witnessed on that day. CHAIRMAN FLEGAL: -- seven automobiles, two boats, and you specified what they are. Now you went back two weeks later -- MS. ARNOLD: No. CHAIRMAN FLEGAL: -- or three weeks later or whatever -- MS. ARNOLD: The notice of violation -- CHAIRMAN FLEGAL: -- the vehicles have all changed. MS. ARNOLD: The notice of violation specifies the ordinance and sections and violation. It also specifies what the investigator witnessed on a specific day-- CHAIRMAN FLEGAL: Right. MS. ARNOLD: -- which is what it says. It also indicates order to correct, must remove -- obtain and affix a current valid license plate to each vehicle and trailer not stored within a completely enclosed structure. Additionally, must park/store recreational vehicles and equipment in rear yard or within an enclosed structure, or remove offending vehicles/trailers from residentially zoned property. And it doesn't specify must obtain and affix current valid license for these seven vehicles. CHAIRMAN FLEGAL: That's not reality, I'm sorry. You can't Page 13 June 22,2000 write this on March 23rd and say for the rest of this man's natural life until the year 2947 he has to do this. MS. ARNOLD: What I'm saying is -- CHAIRMAN FLEGAL: I mean, you've cited certain vehicles. MS. ARNOLD: What I'm saying is if the case is still open and the violation still occurs, we don't typically send the same notice, just because the cars change. If it's the same violation, this case continues, and we continue to have open communication with the property owners so that they can correct the problem. CHAIRMAN FLEGAL: That's not working for me, Ms. Rawson, because-- MS. RAWSON: Well, what we're here for today is really on the statement of violation and request for hearing. They've been notified to be here and they're not here. So what we're really looking at today is the statement of violation which says the outside parking storage of unlicensed vehicles, seven, and boat trailers, two. So that's really what you have to hear about today. And if the code enforcement official tells you that there were seven unlicensed vehicles parked there on such-and-such a date, but now they are changed and now there's five more or whatever, you can find out -- you can find that because it does not say which vehicles, doesn't identify them by tag number, doesn't identify them by color or make, it just says seven vehicles. So he can tell you today that they were in violation but today that's in compliance, but there are two boat trailers or whatever. You can accept his testimony, and you can put in your findings of fact that that violation existed on whatever day he was there, but today the violation is "X" in making your order, finding them in violation of whatever is in violation today. MR. LEHMANN: For consideration of the board, I understand our Chair's hesitation.. What I foresee here is kind of a precedent-setting situation. Do we as a board take on the position that we can find a violator in violation for a period of time before they come before the board and be in compliance, for the sole purpose of doing nothing more than administratively putting a black checkmark next to a certain spot in his record, so that we can come back at a later date and have the ability to do reoccurring type violations, or are we becoming so broad so that we allow the respondents the ability to find loopholes within Page 14 June 22,2000 the codes? And an obvious loophole is, well, I moved the vehicle off the property for a day and now it's parked again. MR. PONTE: Yeah, I think-- MR. LEHMANN: That's the other half of the coin that I fear. MR. PONTE: Yeah, but I think this is where Michelle Arnold has got it right. If we take it as broadly stated, then we are actually looking at the ordinance as written. And it's not specific in terms of identifying individual vehicles. And if we forget the fact that individual vehicles are involved but a violation is involved because there is a vehicle(s) that are untagged, that's the violation. And if we find that a violation exists and leave it in terms of unlicensed vehicle(s), that's what we have. And it would eliminate the rotation problem; that is, the vehicles rotating through and trying to identify each one individually, because we'll never catch up with them. MR. LEHMANN: My concern is that I'm convinced we have a violation occurring. MR. PONTE: Yes. MR. LEHMANN: The definition of that violation to me is a little bit cloudy, because do I have a guy that is just rotating cars and vehicles through this? As you said, a used car lot in essence? Do I have a person that is undergoing serious hardship or substantive hardship? I think the board needs to be on very solid ground in making its finding, especially in the violation. Because we need to -- it almost sets a precedence. MS. DUSEK: Ms. Rawson, can we cite a violation of the ordinance without being specific as to two trailers -- MS. RAWSON: Yes, you can. MS. DUSEK: -- and then find according just to the ordinance, not to individual vehicles, you know, like $25 for this one, $25 for that one, if we set a number for the violation, general. MS. RAWSON: Yes. But basically, yes, you don't have to say which vehicle. The ordinance is broad. Vehicles or trailers of any type that are not immediately operable are used for the purpose of which they -- for which they were manufactured without mechanical or electrical repair or the replacement of parts do not have current valid license plates. That's the part of the broad statute that you're going to find. Page 15 June 22, 2000 And if you find, based on the testimony of the official, that there were vehicles of trailers or trailers that were not immediately operable and they did not have current valid license plates on the day in question, then there's a violation. Now, he's telling you today some of them are moved but we still have some boat trailers, and so that's the only thing that you need to order be corrected. But you can certainly find that a violation existed. MR. LEHMANN: Am I clear in understanding that the board basically makes a decision whether a violation occurred the day the notice of violation was issued, without respect to the time period that has passed? In other words, are we saying a violation has occurred today, even though they corrected it tomorrow? MR. PONTE: But Mr. Lehmann, nothing has changed. The violation existed from the very first date. If -- MR. LEHMANN: That's my question. MR. PONTE: -- the vehicle changes, it doesn't change the violation. MS. RAWSON: What you're saying is a violation existed, and what he's telling you is it still exists. MR. LEHMANN: Right. MS. RAWSON: It may exist with a different vehicle, it may exist with a different boat trailer, but he's telling you by his testimony today that the violation still exists. CHAIRMAN FLEGAL: But you have the right -- at least the way I understood Mr. Lehmann's question, even if there's a violation and by the time it's presented to us, it gets corrected, we can find that a violation exists, there's really no penalty, because you've corrected it. But we do have the right to find that a violation did exist. It's just we can't order him to do anything, because he's already done it. He's corrected it. MS. RAWSON: Well, I think that some of it hasn't been corrected. CHAIRMAN FLEGAL: Right. But even if it was all corrected, we could still at least say that -- MS. RAWSON: That there was a violation. CHAIRMAN FLEGAL: -- a violation did exist and, you know, there would be no order to correct anything because -- MS. RAWSON: Yes, you can. Because if you don't -- Page 16 June 22, 2000 CHAIRMAN FLEGAL.' Then there's -- MS. RAWSON: -- whichever one of you said we don't want to give them any loopholes is correct. You need to find that a violation existed. CHAIRMAN FLEGAL: Right. MS. RAWSON: And once you find that, find out what needs to be corrected to get it completely cleaned up. And then if it continues, then now we have a recurring violation. CHAIRMAN FLEGAL: That's the catch. MS. DUSEK: When we do this recurring violation, this is where I'm confused. Whether there's one vehicle or 10 -- MS. RAWSON: Any unlicensed vehicle would be a recurring violation. MS. DUSEK: But my confusion is, do we have to cite for each one of those, or can you just cite for the violation? MS. RAWSON: You can cite for the violation. Sometimes, in some of our cases, if there are two trailers that need to be removed, we say move the two trailers. And if you don't, we give you a fine for each violation. This is one violation. You can look at it like that. It's one violation of Code 2 -- Ordinance 2.6.7.1.t. So it's one violation. And then if it happens again, it's a recurring violation. CHAIRMAN FLEGAL.' But to be a recurring, it can't be recurring just because he's changing vehicles and is now -- he's adding them to the list. It's not recurring yet because he hasn't -- he hasn't issued another citation. MS. RAWSON: That's right. CHAIRMAN FLEGAL: So there is no recurring yet. I think that's where everybody is kind of getting -- MS. RAWSON: It's not recurring yet because you haven't found a violation. CHAIRMAN FLEGAL: Right. MR. LEHMANN: We understand that, Ms. -- MS. DUSEK: I'm trying to just think of the future, if this is a rotating sort of thing. I guess it depends on how we cite today how we cite in the future. And that's where I'm confused. MS. TAYLOR: We can hash this over for three more meetings, and all we need to do is listen to our attorney and listen to our director, and they're telling us what the facts are. Now, we need to act on that. Page t7 June 22,2000 MS. RAWSON: Well, the official is telling what the facts are. I'm just reading you the ordinance which says if you find that there's a violation because they don't have current valid license plates, that's your violation. MR. LEHMANN: The violation actually is in the code itself. CHAIRMAN FLEGAL: Right. MR. LEHMANN: The vehicles -- unlicensed vehicles were stored, period. CHAIRMAN FLEGAL: Correct. MS. DUSEK: Help me through this. I'm going to make a motion that a violation does exist in the case of the Board of County Commissioners versus Douglas and Cassandra Jimmo, CEB No. 2000-019. The violation is of Section 2.6.7.1.1 and 2.6.7.2.1 of Ordinance No. 91-102, the Collier County Land Development Code. The description of the violation is the outside parking storage of unlicensed vehicles; i.e., boat trailers -- MR. PONTE: Let me -- MS. DUSEK: -- and further, that a violation did exist on March 16th, 2000. CHAIRMAN FLEGAL: I agree. If you would amend it where you said i.e. boat trailers. It should be I think i.e. automobiles and boat trailers on that date. MR. LEHMANN: I would recommend that we strike any reference to any vehicle and just say a violation of the code existed. As broad an extent as possible. MS. TAYLOR: I agree. MR. PONTE: So go just as far as you have gone but delete the reference to vehicles and boat trailers. MS. DUSEK: How would we describe the violation? MR. LEHMANN: Violation of-- MR. PONTE: Outside parking and storage of unlicensed vehicles. That's a boat trailer-- MS. DUSEK: Okay. MR. PONTE: -- that's an automobile, and could be a boat. MS. DUSEK: Okay. I would amend it, that the violation is of the outside parking storage of unlicensed vehicles. CHAIRMAN FLEGAL: Okay, we have a motion that a violation does exist. MR. LEHMANN: Ms. Rawson, is that in acceptable form? Page18 June 22, 2000 MS. RAWSON: That's fine. You don't have to be very specific. There's a violation that existed, and it exists today. That was her motion. MS. ARNOLD: Can I make a clarification? Because there is a distinction between vehicles and recreational vehicles. There may be a slight distinction in there and we are dealing with both types of vehicles, recreational vehicles and vehicles in general that are -- MR. LEHMANN: Well, we are citing the code section itself and the code section specified -- MS. RAWSON: She cited both sections. MS. ARNOLD: Yeah, we have two different sections cited. And one refers to recreational vehicle, the other to unlicensed vehicles. MR. LEHMANN: That is correct. So we have a broad sense that we're talking about all the vehicles referenced by those code sections. MS. ARNOLD: Okay. CHAIRMAN FLEGAL: Ms. Rawson, in the motion, if I remember, the motion cited a specific date. Does that give us a problem? MS. RAWSON: You don't really need to cite a specific date, because you're listening to evidence today, and today the evidence tells you that the violation still exists. MS. DUSEK: Now, the reason I did the March 16th, that was MS. RAWSON: I know. MS. DUSEK: -- to be part of the findings of fact so that if there is a recurring violation -- MS. RAWSON: Well, I think we got past that and decided that if there's a violation that exists today, there's a violation that exists today under the statute and the ordinance, both the 1.1 and the 2.1. And it apparently still exists today. MS. DUSEK: Okay. So that part we're striking also, the March 16th -- MS. RAWSON: I don't think it's necessary. MS. DUSEK: Okay. So that's been amended. CHAIRMAN FLEGAL: Okay. I just want us to get the best protection we can. MR. LEHMANN: Now that we've talked about it, could you Page 19 June 22,2000 reread that so we understand again what it looks like? MS. DUSEK: Do you all understand it, that the violations I've cited is for the unlicensed vehicles, and that's basically it. CHAIRMAN FLEGAL: The motion is for the violation against the two sections, and it's for unlicensed vehicles, period. MS. DUSEK: Yes. CHAIRMAN FLEGAL: Vehicles, being described in this section itself. So they're all covered. MS. DUSEK: Why don't we say as described in the section, so that there would be no misunderstanding. CHAIRMAN FLEGAL: So we have a motion on the floor. Do I hear a second? That a violation exists, that's all we're talking about right now. MR. PONTE: I will second that. CHAIRMAN FLEGAL: We have a motion and a second. Any further questions? All those in favor, signify by saying aye. Any opposed? (No response.) CHAIRMAN FLEGAL: Thank you. MS. DUSEK: Now we have to decide what to do. CHAIRMAN FLEGAL: Now we move on to order of the board. MS. TAYLOR: I have one question here. Obviously he's selling these vehicles, so that also is a violation. Now, I know that we don't have anything to do with that, we're not going to get into that, but this is a problem with me. Where is this stuff going? What's happening to it? MR. LEHMANN: I might remind my colleague that we don't have any proof that he's actually selling it. We don't know what he's doing with the vehicles. All we know is that a vehicle may be circulating through there some -- MS. TAYLOR: I didn't say there was any proof. I said obviously. And it appears to me that must be what's happening to it. Where else is it going? So that's another violation. CHAIRMAN FLEGAL: But that -- MS. TAYLOR: And I know, we're not going to get into that. It's nothing to -- CHAIRMAN FLEGAL: No, but it's really immaterial, and we can't consider it. MS. TAYLOR: -- do with the case. I'm very curious about it. Page 20 June 22,2000 MR. PONTE: I think that the order of the board should just follow the recommendation from Ms. Arnold. MS. DUSEK: It specifies there each vehicle. MR. PONTE: Yes. And that could be one or two or seven. MS. DUSEK: But the date that they cite the violation, there could be five or there could be two, there could be eight. MS. ARNOLD: That's going to be problematic. MS. DUSEK: Yes. So I think-- MS. RAWSON: I might suggest that you just have a fine per day that the violation continues to exist. MS. DUSEK: That's what I was -- MS. RAWSON: And then they'll go back and check, and if the violation's gone, then we'll get a certificate of compliance. If it's not gone, then we'll be back in here assessing fines. And if there are 25 new vehicles, then we'll be back on a recurring violation. CHAIRMAN FLEGAL: I guess this is where I -- initially where I have my problem. If we say a fine per day till the violation is resolved, when would that be? MS. RAWSON: Any day there's a vehicle out there that does not have a valid license. CHAIRMAN FLEGAL: Okay. But under that contention, if he rotates vehicles every day, this will never cease and you will never ever have a recurring violation. MS. ARNOLD: Yes, you will. MS. RAWSON: I think we have a recurring violation if we've got a car that wasn't there today tomorrow. CHAIRMAN FLEGAL: No, but we just said if we issue an order saying some type of fine until the violations ceases, if he rotates cars every day, the violation is just continuing, then you can never get to recurring. That was my initial problem. MS. RAWSON: Well, every day there's a violation there's a fine. CHAIRMAN FLEGAL.' But you can never move to the next level of a recurring. MS. ARNOLD: What we could do is bring the case back as a repeat violation. The board would make their order, and it gives sufficient time to correct the violation. And then if we find that the violation's not abated by such-and-such a date, whatever the date is the board asks to comply, then we would do our regular course of action. It's a continuing violation from that order. But Page 21 June 22,2000 if the vehicles start changing, we can come back and say we have a repeat problem. CHAIRMAN FLEGAL: Well-- MS. RAWSON: That's fine. CHAIRMAN FLEGAL: -- we're just saying the vehicles are already changing. Now she's taking both sides of the apple here and I can't -- I'm not with that. MR. LEHMANN: Can we not separate this particular case into individual violations? In other words, bring the case back to the board and cite each vehicle independently. MS. DUSEK: I don't-- MR. LEHMANN: We have nine vehicles -- MR. PONTE: But Peter, by the time we were to reconvene, the vehicle would have been moved elsewhere. MR. LEHMANN: Right. MS. DUSEK: I think it has to be a per day violation, period. MS. RAWSON: I do, too. CHAIRMAN FLEGAL: I don't have a problem with that. My problem is in the vehicles today, whether they're -- forget the types. If there's one, and we say until it's resolved, and then you go back tomorrow and that one is gone but there's two more, I mean, it's still a violation, so the fine still keeps going. And then the next day, those two are gone and three more, and it's still going on and we're still under the same order, you can -- this hypothetically could never end. And then you would never get to repeat, because Ms. Arnold's saying well, if he changes vehicles, we'll consider it. Well, he's been changing vehicles. That's what he's been doing here. MS. RAWSON: Well, I guess, you know, the bottom line is it doesn't really make a difference whether it's a repeat or a recurring or we are still going under this order, because we're going to continue to fine them every day -- MS. ARNOLD: Right. MS. RAWSON: -- for the -- as long as the violations continue to exist. And if we keep bringing the case back, you're going to continue to order fines be imposed. And so as long as your job is to ensure compliance and using the fine method, I suppose it doesn't make any difference whether it's still under this same case. Page 22 June 22,2000 MR. PONTE: Here's a thought, too. If it's a non-ending case, what we -- the way to bring it to conclusion is to make the fine of -- so that they can feel it. To give it a maximum fine from the start. We can always reduce it. But if we are too lenient in our finding, then I think we are further creating the problem. So if we go to maximum fine, but in doing this, see if we get their attention. MS. RAWSON: And don't tie it into per vehicle. That would be too problematic. MS. DUSEK: It would be a per day. But I kind of agree with Cliff, that we need to say within 60 days this violation must be corrected. You know, some date. CHAIRMAN FLEGAL: I don't have a problem with doing that, but my problem is that if he doesn't correct it and he keeps doing what he's doing, the fines keep piling up and you can never get to a quote, unquote, repeat violation, which makes -- gives us a bigger hammer, because he's just continuing to change vehicles. And then you can't stop and say oh, well, I want to call him a repeat violator because he's changed vehicles. No, we've just agreed, he's changing vehicles now. You're taking both sides of the page and you can't do that. MR. LEHMANN: Mrs. Rawson? MS. RAWSON: Yes. MR. LEHMANN: Does the board have the ability to issue an order that says you have "X" number of days to comply with code, if you do not take action by that date, we will take action to remove the violation? Instead of imposing fine, can we remove the violation? As we have done in other cases, we've removed boats and cars and motors and all sorts of things. MR. PONTE: Good idea. MS. RAWSON: And then if you remove the violation and then it reoccurs, then I guess -- MR. PONTE: Oh, but then you've got to identify what you're removing. MR. LEHMANN: We're removing any unlicensed boat that is in violation as of the date that we're removing that vehicle. CHAIRMAN FLEGAL: By order. MS. RAWSON: Well, that -- yeah. And you put the burden on the county to have to do it. Then you're going to have to collect back from the landowner. Page 23 June 22,2000 Let me say this about the amount of the fines: Remember that the law says you have to consider one, the gravity of the violation; two, any actions taken by the violator to correct the violation; and three, any previous violations committed by the violator in determining your fine. So be careful about starting off with like maximum fines. MR. LEHMANN: Right. And you have -- the board has to understand also, if I'm charging him $25, as staff had recommended, in essence what I've charging him is a parking fee to park his vehicles, $25 a day, for however many days he decides to do that. A month worth of $25 is substantial. MS. TAYLOR: I don't think they're -- MR. PONTE: Not according to -- MS. TAYLOR: -- taking this seriously at all, because -- MR. PONTE: -- to if it's a parking fee. MR. LEHMANN: Oh, I'm taking it very seriously. MS. TAYLOR: Excuse me, they are not taking this seriously at all. Neither of them are here, neither of them have shown any interest. They keep putting Mr. Kelly off. This is not of any importance to them at all. Not at all. So in order to get their attention, we're going to have to do just exactly what George said, we're going to have to really sock them a fine as high as we can go and get their attention. That's the only way it's going to happen. MR. LEHMANN: Well, I have to consider the fact, the testimony of our investigator who said that basically we have an estranged husband, we have an abandoned wife, and that wife just experienced a death in the family. It could be -- MS. TAYLOR: Anybody can say anything. MR. LEHMANN: I understand that. And that's -- and unfortunately the respondent's not here to -- MS. TAYLOR: That's right. MR. LEHMANN: -- to address that. MS. TAYLOR: They should be here to back up their little stories. MR. LEHMANN: But I understand, you know, when you have a death in the family or that situation, this may not be the top priority, even though we think it should be. So I think we need to take that into consideration. I don't know whether they're taking this seriously or not. Page 24 June 22~2000 The fact that they haven't done anything to comply tells me they may not be. MR. PONTE: If we start looking at these outside factors, then we have to look at the fact that Mrs. Jimmo has been abandoned, and the property is not hers, she has no control over it, and has received advice, implied legal advice that she is not to remove those vehicles because they're not her property. We start focusing on the outside parts of this case, we don't have our eye on the ball. CHAIRMAN FLEGAL: Why doesn't the board -- MR. LEHMANN: Unfortunately the board has heard a case like that, and in turn we, the board, has had to issue an order to the county to remove that property for the landowner. CHAIRMAN FLEGAL: Yeah, we've had -- MR. LEHMANN: This is a very similar case. CHAIRMAN FLEGAL: Why doesn't the board stop a minute and think, as we've done before, if we want to get their attention, they're in violation of two sections of the code. Why wouldn't the board consider that a fine somewhere in the nature of $100 a day per violation. That now makes it $200 a day. You've got their attention. There are two violations, two sections of the code. It's a violation of $100 per violation. Since they're in violation of two sections, that's two violations. We've done that previously. I throw $100 out. You can make it any number you'd like. But rather than just say let's give them the max, let's try to be logical about it, there are in fact two violations, and let's put a number that we feel is realistic. And I think when you multiply that by two, their attention will be obtained. MR. PONTE: I agree. CHAIRMAN FLEGAL: Now all we have to do is find a number that's comfortable to everybody that we -- understanding what they've been doing. They started with "X" number and they continually rotate them, so you should consider that. So the violation does exist in both sections. That should factor into the number that you may be thinking of to try to cease this violation. MR. PONTE: If we do it that way -- that's a very good idea. But just for clarification, one section refers to the boats and the other refers to automobiles; is that correct? I mean, one is vehicles and the other is recreational vehicles? MS. ARNOLD: One is broad, and it includes unlicensed Page 25 June 22,2000 vehicles of any kind. And then the other one refers to recreational vehicles. CHAIRMAN FLEGAL: Right. MS. TAYLOR: We've just been through that. CHAIRMAN FLEGAL: We cited them both. MR. PONTE: We cited them both. But if there are no recreational vehicles on a lot at a specific time, in the future we go to look at those or decide -- CHAIRMAN FLEGAL: But we don't know that. MR. PONTE: That's right. CHAIRMAN FLEGAL: So we have to make some assumptions that -- MS. ARNOLD: What we would do is we would look at the property and do our regular checks, and if the recreational vehicle violation is abated, then whatever that amount of the fine per that violation wouldn't apply. We've done that in the past where we -- you know, if one violation's abated, we stop the fines from accruing on that date. And then if the other continues, then those fines would continue. MR. PONTE: It seems to make it complex. But, I mean, if you've done it in the past, okay. MR. LEHMANN: My concern in doing that is how do we actually ensure compliance? CHAIRMAN FLEGAL: Well, compliance is when the county goes out there and there are absolutely no vehicles on the site of any type, then they're in compliance. MR. LEHMANN: Then how do we assure that we actually accomplish that? CHAIRMAN FLEGAL: That's the county's problem. All the board can do is issue the order. We're not the police. The county are the police. And the county will come back to us and say we went there on June 30th and all the vehicles were gone. We consider them in compliance. Now, you go back on July 1st and there's new vehicles, now that's a repeat violation. MR. LEHMANN: Right. MS. DUSEK: Ms. Rawson-- CHAIRMAN FLEGAL: And they have to be cited again. MS. DUSEK: -- is it better for us to put a date in there for compliance, rather than leaving it open? MS. RAWSON: Yes. Page 26 June 22,2000 CHAIRMAN FLEGAL: Yes, you must put a date. MS. DUSEK: And then we can come back as a repeat? MS. RAWSON: Well, and if you go out on the date that you give them to comply and they're in compliance, you don't issue fines. If they're not in compliance, you issue fines. If they're in compliance, and then later there are vehicles there again, now we have a repeat violation. CHAIRMAN FLEGAL: So now we know there's a violation. We found that. What is the board's order to get the violation corrected? MR. PONTE: Well, let's -- let me just try this. I make a motion for -- or that, and just paraphrasing the recommendation from the staff. Respondents were ordered to correct violation by removal of all unlicensed vehicles, or obtain valid license plates for those vehicles within 15 days, or a fine of $100 will be imposed each day for each violation. MS. TAYLOR: I'll second that motion. CHAIRMAN FLEGAL: Okay. Everybody understand the motion and the second? MR. LEHMANN: I think the time period is too short and the fine is too high. But put it to a vote. I think 15 days is too short to actually license a vehicle. CHAIRMAN FLEGAL: Oh, I don't. MR. LEHMANN: Do you have title problems? CHAIRMAN FLEGAL: The answer to that, Peter, is if you have a title problem, remove it from the property. Put it in storage somewhere. MR. LEHMANN: Well, that is a good point. That is a good point. CHAIRMAN FLEGAL: Solves that problem, and you can fight your title problems. Any further discussion? We have a motion and a second. Yes, sir? MS. DUSEK: I'm just thinking about -- CHAIRMAN FLEGAL: Ma'am. I'm sorry. MS. DUSEK: That's all right. It's yes, ma'am. CHAIRMAN FLEGAL: I was looking at George. I thought he said something. MS. DUSEK: I'm just thinking about what Peter said. And it's hard to eliminate the extenuating circumstances of this Page 27 June 22,2000 homeowner. If we made it 30 days, that's giving a little on our side and giving them a little more opportunity. MS. TAYLOR: But we don't know that for a fact. We don't know that. That's just what somebody told Mr. Kelly. Now, I think as the board we need to act on this as a major violation, and not take all this other stuff into consideration even. Because anybody can say anything to get their -- out of a jam. CHAIRMAN FLEGAL: Yeah, they've already had 90 days and they've obviously been rotating, so -- MS. TAYLOR: That's right. MR. PONTE: And we're only asking to move seven cars or seven vehicles. It's not like moving -- CHAIRMAN FLEGAL: Well, how many ever we're asking them to move. MR. PONTE: But my point is the length of time. CHAIRMAN FLEGAL: Right. MR. PONTE: How long does it take to move seven cars? MS. GODFREY: They've known since March. CHAIRMAN FLEGAL: They've had 90 days already and they've obviously been rotating them, based on the testimony. So I don't have a problem personally with the time period. I think that's sufficient. It's time for somebody to get off their back side and act. MS. TAYLOR: That's right. CHAIRMAN FLEGAL: So we have a motion and a second. Any further question? All those in favor of the 15 days and $100 per day per violation, signify by saying aye. Those opposed? (No response.) CHAIRMAN FLEGAL: Hearing none, so ordered. If there are no further cases, that will close our public hearing section. New business. MS. ARNOLD: This is a request for reduction of fines. As you will note, we do have later on in the agenda under reports affidavit of compliance for the same case. This is the Board of County Commissioners versus Epifanio H. Hernandez and Manuel H. Hernandez. And legal counsel, Ms. Kirby, is here to request the reduction of fines. Page 28 June 22,2000 MS. DUSEK: MS. KIRBY: CHAIRMAN speak? MS. KIRBY: like to -- Do we need an interpreter? We have an interpreter. FLEGAL: Okay, let's first decide, who's going to I will do an opening statement. Then I would CHAIRMAN FLEGAL: Okay, if they'd sit down, please. Just have a seat, sir. MS. KIRBY: I would just like to do a brief opening state, then I'll-- CHAIRMAN FLEGAL: Okay. One moment, please. (Speakers were duly sworn.) MS. DUSEK: And before you start, don't we need to have the interpreter tell the respondent? MS. KIRBY: He understands English enough to understand what I'm saying. MS. DUSEK: Okay. MS. KIRBY: But to expedite the process, we need to -- CHAIRMAN FLEGAL: And your name, please? MS. KIRBY: My name is Lisa Kirby, with the firm of Craig, Cavanaugh & Cavanaugh, representing Epifanio Hernandez. And the interpreter will be Delia Escovedo. On March 23rd, this board ordered the imposition of fines in the amount of $43,750 from the period September 1st or September t6th -- I think it's unclear which date -- through March 8th, 2000. On March 23rd, the question for the board was what had been done to bring the property into compliance up to that date, March 8th. And I would like to present the board with just a few items so I could make this opening statement, and it will be a little more clear to everybody. MS. TAYLOR: Mr. Chairman? CHAIRMAN FLEGAL: Yes, ma'am. MS. TAYLOR: Can we have sort of like a refresher course here? MS. KIRBY: I will do that. I will explain what the procedure -- what's happened in this case. If you'll notice on Page 2 -- essentially what happened, there was some property out in Immokalee, and there were trailers on that property. An order of the board, a finding of fact and Page 29 June 22,2000 conclusion of law was entered into in July of '99. And the date for compliance was September 5th. On March 23rd, there was an imposition of fines. And that's where we are now. If you'll notice -- what I've handed you is a report of the inspector. If you'll notice on Page 2, March 16th, there were -- the property owners came into the code enforcement and said that they had four mobile homes and one RV on the trailer (sic). They were cited with a violation for three mobile homes. It's Page 2 of the inspector's notes, and I have it highlighted in green. A notice of violation was sent out for three mobile homes and one RV. The order of the board, in the findings of fact and conclusions of law and order of the board, was issued on July 22nd. Michelle, I'm just going to hand these to them. And it also reflects in -- on the second page under Paragraph 4 that there were three mobile homes and one RV trailer that were in the property without having obtained a permit. On September 5th, that was the date of -- that the property owners were to come into compliance. Prior to that date, the property owners came to the property and destroyed three -- destroyed the three mobile -- mobile homes, and they removed the recreational vehicle, the RV, from the property. If you'll go back to the -- the note of the inspector, on the third page, on September 16th, when the property was inspected, it says one mobile home remains. Also on the 14th, one mobile home remains. And on December 7th of 1999, one trailer, mobile home, still remains. So there originally had been four. They were cited with a violation for three. They removed the three, and it was consistent with what the notes of the investigator states, that there was one remaining, the one that they were not cited to. I believe the order of the board does state that all unpermitted structures. Whether or not the fourth mobile home was unpermitted, it was certainly not addressed in the order. The question is, was it an unpermitted structure to therefore not comply with the order of the board, which would leave the one remaining mobile home. It was not cited, but we would admit that the order does say all permitted -- all unpermitted mobile Page 30 June 22,2000 homes. At some point later, for reasons unknown, the RV was brought back onto the property. The property owners are -- do not live on the property, they live in Tennessee and in Bradenton, Florida. At the March 23rd hearing, the maximum penalty of $250 per day was imposed for the violations. So I think I've just tried to make clear what has happened, that on September 5th, the property owners were in full compliance, as they read the order to be, which was to remove three mobile homes and the RV. They had done that. And the inspector's report reflects that by stating on September 16th that only one mobile home remains. So the issue before the board is what I would request for my clients -- and if you would like me to take testimony, that is at your discretion; I can certainly take the testimony that I have presented under oath -- is to abate the fines to -- because they were in substantial compliance as of September 5th, the date of the order. Or, in the alternative, to reduce the fines from the maximum fine of $250, because there was one mobile home that they were not aware was not in compliance on the property. So I would present to the board those options. And my preference of course for my clients being that they were in compliance with the order. They had removed the three mobile homes and the RV on the date that the order required them to comply, which was September 5th. I would also like to -- just as a matter -- just as a matter for the board to consider, I have copies of the minutes from the March 23rd meeting where the fine was actually imposed. If I could just ask the board to review that, and that may make it easier for the board to understand why such a large fine was imposed. I believe some of the -- I just discovered this morning, some of the copies may have two Page 42s. But on Page 41 of the minutes, which is the third page into the handout -- I'm sorry, Page 42. The -- what the board presented to the -- what code enforcement presented to this board was that if you'll notice on the Page 42 highlighted where Ms. Arnold says on March 3rd -- on March 8th, when the investigator went out, all trailers remained, mobile homes remained. Response from Ms. Saunders, "So three remained out of the Page 31 June 22,2000 four that were there." And Ms. Arnold states, "All of the violations still remained on the site." And Mr. Lehmann states: "Ms. Arnold -- I'm sorry, Mr. Chairman, Ms. Arnold, let me clarify this. You are telling me that according to the county's testimony, on March 8th, all three mobile homes plus the RV trailer remained on the site?" And the answer was in the affirmative. So I think there was conflicting -- for whatever reason conflicting testimony to this board, which conflicts with the report of the investigator, which states on September 16th, October 14th and December 7th of 1999, that only one trailer still remained on the site. So at this time I would ask the board to remove the fines or to reduce the fines by the appropriate amount. My argument being that they were in compliance on the date that they were told to be in compliance. And as Ms. Arnold has stated, there is a certificate of compliance now. They have removed the fourth trailer. Would you like me to present the testimony of the -- Mr. Hernandez? CHAIRMAN FLEGAL: Just a moment. I have a question. Let me go back. After reading all the other items you handed us, I fall back to my question. I have a question for staff. Since we're saying we have an affidavit of compliance, compliance took place on what date? MS. ARNOLD: The affidavit of compliance is for May 24th -- CHAIRMAN FLEGAL: Okay. MS. ARNOLD: -- of 2000. CHAIRMAN FLEGAL: Okay. And when we imposed the fines, we imposed the fines for the period of September 6th through March 8th. MS. KIRBY: September 16th. I think the one -- in one area it reflects September 5th, in one area it reflects September 16th, SO -- CHAIRMAN FLEGAL: I'm reading the order imposing the fines and it says for the period September 6th through March 8th, okay, not the 16th. And during that period, they were not in compliance, correct? MS. ARNOLD: Correct. Page 32 June 22,2000 CHAIRMAN FLEGAL: Okay. Now, the order of the board, the findings of the fact were that there were some trailers and -- what does it say? MS. KIRBY: Could I just state one more -- CHAIRMAN FLEGAL: Can I finish or-- MS. KIRBY: I'm sorry. CHAIRMAN FLEGAL: Thank you. The order of the board states that you will obtain permits for all structures. We don't say what these structures are in the order. MS. KIRBY: I'm aware of that. CHAIRMAN FLEGAL: Or you can remove all unpermitted structures. We don't say what structures. MS. KIRBY: That's correct. CHAIRMAN FLEGAL: Okay. Now, the county has told us that by that September 5th date, that had not occurred. So what I'm trying to figure out is why you're asking us to reduce the fines. MS. KIRBY: Well, according to -- I believe what was presented earlier, the -- there are certain items that need to be addressed, one -- when you impose fines. And one is what the steps are that the respondents have taken to correct the violations. Ms. Arnold has the notice of violations which stated the three trailers and the RV. And Mr. Flegal, I'm sure you're very educated. These people are not. They read the order. They saw three mobile homes and one RV. And they made every effort, according to what they understood the order to be, to correct the problems. What the order of the board states, that by obtaining permits or by removing unpermitted structures. I don't think there's any evidence either way whether there was a permit for the fourth one or not. And to be honest, we're just not going to argue that point. It was there. But the fact does remain that they did make substantial efforts to comply with the board's order by the date that there was an order for them to comply. They removed the three trailers that were referenced in the violation that they received in the notice of violation, and they also removed the RV from the property. The value of the property is -- the value of the property is Page 33 June 22,2000 substantially less than what the fines are. And just in the interest of justice, these people did what they could do to comply. CHAIRMAN FLEGAL: I guess where I'm -- forget the amount for the second. What I'm looking for is the order said either obtain or remove. And by -- until May 24th, that hadn't occurred, is what the county is saying. MS. KIRBY: I do understand what the county is saying. CHAIRMAN FLEGAL: Okay. So what they're doing, and it sounds very similar to something we just went through, there was probably a -- I don't know, maybe you take a trailer off, bring a trailer on. I don't know. MS. KIRBY: No, that's not the case. CHAIRMAN FLEGAL.' But needless to say, that by September 5th, they didn't comply with the order, period. They went to some other date and finally complied. And what the county says is that date is May 24th. MS. KIRBY: That's correct. CHAIRMAN FLEGAL: Okay? MS. KIRBY: That's correct. CHAIRMAN FLEGAL: The original imposition of fines only covered up through March 8th. We haven't even imposed the fines from March 8th to May 24th yet. MS. KIRBY: That's correct. CHAIRMAN FLEGAL: Okay. MS. KIRBY: So is the board not taking into consideration just imposing the maximum fine because the one trailer-- let me just make sure I understand. The board is stating that there is going to -- are you going to -- the board is stating that the maximum fine was imposed and it doesn't matter that they -- CHAIRMAN FLEGAL: Well, the maximum fine hasn't been imposed yet because there's a time period we haven't even imposed a fine for. MS. KIRBY: I apologize. The maximum per day fine of $250 was imposed and it is of no relevance that there was -- CHAIRMAN FLEGAL: Well, we haven't decided that yet. I want to make clear that we're just not -- I don't think we should just reduce it because they're now in compliance. MS. KIRBY: I'm not asking -- CHAIRMAN FLEGAL: That's-- Page 34 June 22, 2000 MS. KIRBY: I'm not asking the board -- CHAIRMAN FLEGAL: That isn't going to happen, as far as I'm concerned. You know, it's nice if you comply by the date. But once you pass the date and we impose the fines and then come back and say well, I did what you wanted, even though it was six months or two years late, would you reduce the fines -- MS. KIRBY: I think-- CHAIRMAN FLEGAL: -- I think that's unfair to the county. MS. KIRBY: I think it's unfair to the county, but I believe that in the last issue before the board, we spoke about due process and the fact that there were only certain violations were addressed in the notice of violation. The three trailers were the only violations addressed in the notice of violation. These people did what they believed to do to come into compliance with the order of the board. And I just would ask the board to consider that fact. MS. DUSEK: Where I'm having some problem is, did Mr. and Mrs. Hernandez understand why they had to remove those vehicles? MS. KIRBY: MS. DUSEK: MS. KIRBY: Mobile homes? Yes. They understood that? Yes. And just -- just from reading the transcripts of prior proceedings, I'd just like to inform the board, not that it's relevant to anything, but that these people were not making money from these mobile homes. This was family -- a family was living there. It wasn't a situation where they were housing migrant farm workers and they were making money. It was family and they were not making -- it just appeared that that might be a consideration of the board in a prior hearing. CHAIRMAN FLEGAL: I guess where my problem comes in is that you're telling us that they've done everything they can to comply and they've made all these efforts, and yet from September 5th, when they were supposed to comply, it took to May 24th to comply. I mean, that -- you know, September, October, November, December, I mean, it took eight months, and yet you're wanting to us feel all these good feelings, and I'm kind of lost here. MS. KIRBY: Well, what I will tell you is they retained counsel in April; at which time I explained to them that they Page 35 June 22,2000 needed to remove the fourth trailer, and they did so immediately. So as soon as they were told that they needed to do that by me, after speaking with the board, they did so. And Ms. Arnold sent out the inspector and a certificate of compliance was entered. I will say that they are -- they do not speak English well, although I know Ms. Cruz does speak Spanish and explained everything to them. I don't know what the problem is. I'm telling you that they did what they could. And as soon as I told them that they needed to remove that fourth trailer, they did. CHAIRMAN FLEGAL: Okay. Does the board wish to hear from anybody else? I mean, I've got enough information to -- from their attorney to understand what the request is. Any other questions? Thank you, ma'am, at this moment. I guess on the surface, since we still have a time period of -- let's see, this goes from September through March, so we know we have March to -- we have two months that haven't -- have not even been considered for imposition of fines yet. You can do the math real easy. If we -- and all we can do right now is run on a 250 a day for the additional two months, so that's roughly March to April to May is 60, plus another 16 days makes it 76 days we have to add at 250 a day. We know that's quite a bit of money on top of the 43-7 that's already being imposed. So basically what we're looking at, is the board willing to consider reducing that large number; i.e., we can go back to square one and instead of 250 a day, would you like to have it some other number? Or would you prefer to do nothing? Or would you prefer to do just -- Could we do just a lump sum, Ms. Rawson? If we just said, you know, we want to wipe out the current imposition of fines and we'll just fine "X" totally for the whole thing. MS. RAWSON: Well, remember these fines only go through March 8th. CHAIRMAN FLEGAL: Right, I'm understanding that. And, you know, like I said, we do the math and add another 76 days, which is probably another what $19,000 on top of the 43, so now we're at, you know, $62,000. MS. RAWSON: You can make a lump sum. But I would suggest that you also do a rate, if you're going to change the 250 rate. Because when Ms. Arnold comes back with a request for Page 36 June 22,2000 imposition of fines from March 8th to May 24th, she needs a number. CHAIRMAN FLEGAL: Could we -- if the board so choose, the current imposition of fines, which is the 43,750, I think it was, or something like that, could the board reduce that number and make a motion to waive the balance? In other words, from the March 8th period to May 24th, we just say okay, we'll waive that period, which is the 19,000, and we'll reduce the current on file 43,750 to something else? MS. RAWSON: I don't believe there's anything that prohibits you from doing that. Although that particular issue is not really before you now, you do have before you today an affidavit of compliance dated May 24th. So there's nothing really probably to prevent you from doing that. CHAIRMAN FLEGAL: I mean, since they're asking for a reduction in fines, the only fines imposed so far are the 43. MS. RAWSON: Correct. CHAIRMAN FLEGAL: We haven't imposed the other. What I'm looking at is rather than impose the balance, the 19, and then have them come back and say okay, we want you to reduce, can we just rather than impose it, since we have an affidavit of compliance, say the fines that were to be imposed between the period March 8th through May 24th, the board is going to waive those? So we haven't prevented -- MS. RAWSON: Yes, I think you have that power. CHAIRMAN FLEGAL: And then that issue's done and they don't have to come back later. Otherwise, they're going to have to come back. MS. RAWSON: Right. CHAIRMAN FLEGAL: Because, you know, at some point we're going to impose those fines; i.e., at our next meeting. Then the month following that they're going to come back. So I mean, you know, we're just expending this. Can we just do it now and get it over with -- MS. RAWSON: Yes. CHAIRMAN FLEGAL: MS. RAWSON: Yes. CHAIRMAN FLEGAL: understanding (sic) what I was asking? MR. PONTE: Yes. -- if that's what the board chose? Does everybody on the board Page 37 June 22,2000 CHAIRMAN FLEGAL: Okay. What's the pleasure of the board? MR. LEHMANN: I personally would like to see some sort of evidence in the other direction. We have a respondent saying that they've done everything they could to comply with the order as they understood it. Prove to me they haven't. CHAIRMAN FLEGAL: Prove to me they haven't? MR. LEHMANN: They haven't done everything they could have to try to comply with the order as they understood it. MR. PONTE: I'm confused, Peter. CHAIRMAN FLEGAL: You lost me there. MS. GODFREY: Me, too. CHAIRMAN FLEGAL: We imposed the fines in March, so obviously at that point we understood that they hadn't complied, so that's a dead issue. MR. LEHMANN: I see what you're saying. CHAIRMAN FLEGAL: So we can't go back and revisit the apple. We've already ate the apple. So now we have to decide do we want to reduce the fines at that period. Because they say well, we did our best, even though it took us longer and we didn't comply until May. We'd like you to reduce it because we did try and we really don't have the money and can't afford it. That's pretty much the bottom line. MR. PONTE: But isn't the other factor that they did remove three mobile homes, and that the original finding of fact -- CHAIRMAN FLEGAL: Right, finding of fact and -- MR. PONTE: -- does talk of in items of three mobile homes and one RV. And it was those three mobile homes that they destroyed, leaving the one. MS. KIRBY: They removed the RV as well. MR. PONTE: And the RV. CHAIRMAN FLEGAL: They later removed the other one. MR. PONTE: Right. So that the three were removed from the property. CHAIRMAN FLEGAL: I think you're on the right track. I think what you need to put in perspective is that at one point we imposed the fines, which we're required to do. And based on our best information at that time, that's why we imposed the maximum penalty. They have every right to come and ask for a reduction Page 38 June 22,2000 because they feel they have put forth some effort that they couldn't pay the max. What we need to consider is, do we agree that they put forth this effort and we should reduce it, or do we feel they didn't put forth the effort and we should leave it stand? That's really the question. If we think they've put forth the effort, then we should consider some type of reduction, or whatever, waiving it. That's really your only two options. You can reduce it or you can waive it. Otherwise, it has to stand as is. So I think the question is, do we feel they put forth this effort. MR. LEHMANN: My personal conviction is that I think that they have put forth an effort that would warrant us considering reducing the fine. CHAIRMAN FLEGAL: Okay. I don't have a problem with that. If you feel that way, would you like to make a motion to reduce it, the imposed fine, to some other number? And I think you should also include the fine that is yet to be imposed so we don't have to revisit this again. MR. LEHMANN: I'll tell you what, I haven't had it enough to be able to do that right now, as far as giving -- MS. DUSEK: I'm just thinking, if we -- CHAIRMAN FLEGAL: Ms. Kirby, may I ask you a question, please? Since you are -- if you'd come up here. Do you know when -- I think you said as of April when you got involved in this, you told them to get rid of the other item, the other structure. MS. KIRBY: Yes. CHAIRMAN FLEGAL: Prior to that time, do you know when the other structures were removed or what have you? MS. KIRBY: September 2nd or 3rd. He came back from -- he was living in Tennessee. Mr. Hernandez was living in Tennessee. This is also for the board, that these notices were going to the wrong address, but he was getting them through relatives. I think there's an issue of that. I don't know the answer to that. But anyway, so he flew back from Tennessee September 5th -- 2nd or 3rd and removed the mobile homes and the RV. CHAIRMAN FLEGAL: Okay, so -- MS. KIRBY: So prior to the date that the order would be -- imposed fines. Page 39 June 22,2000 CHAIRMAN FLEGAL: Ballparking, we could say roughly that the major portion of the violation was abated within the time limit. It's just the entire violation wasn't abated until approximately this May 24th date that we're being told. MS. KIRBY: That's correct. CHAIRMAN FLEGAL: Okay, does that register with the board members? They had made this substantial effort way back when, they just didn't do the entire item. Does that help in making some decisions? MS. GODFREY: Can I ask a question? Was anybody renting that mobile home, or was it unoccupied? MS. KIRBY: Nobody was renting the mobile home. MS. GODFREY: It was unoccupied? KIRBY: Was that unoccupied, or was your sister living MS. there? MS. ARNOLD: It was occupied. MS. KIRBY: His niece was living there, but he was not charging her rent. MS. GODFREY: So somebody was residing in that mobile home. CHAIRMAN FLEGAL: Does that help, Peter? MR. LEHMANN: That's pretty much exactly what I was thinking. And in consideration of the fine as it was originally established, you know, again what we're trying to get is compliance. And if I remember right, we had even spoken to the respondent and said you have the right to come back to us, which is what we're doing right now. CHAIRMAN FLEGAL'- Thank you, Ms. Kirby. Any suggestions from the board? MS. DUSEK: How many days are we talking about? Like 170 or t75 or something like that? CHAIRMAN FLEGAL: Well, right now you're -- MS. DUSEK.' Without the -- CHAIRMAN FLEGAL: Without the additional, you currently have imposed fines for -- from September 6th through March 8th. So we've imposed six months' worth of fines, round figures. And you have another 76 days to go. I think the issue would be, based on what Ms. Kirby has told us, that for that original six months that we imposed, which is Page 40 June 22,2000 the 43,750, they were in substantial compliance, although not complete compliance. So -- MR. PONTE: But they thought they were. CHAIRMAN FLEGAL: Yes. I think the major thing is that they had done some of it, you know. They changed three of the four tires, they just didn't change the fourth one. So we still have a flat. Do we want to make it -- do we want to leave it such a severe penalty, or do we want to reduce it somewhat? MR. PONTE: No, I think it should be reduced. CHAIRMAN FLEGAL: So now we need to find something that the board feels is reasonable for their effort, or reasonable for their non-effort, whichever side of the coin you want to use. MS. TAYLOR: I would suggest $100 per day. MR. LEHMANN: Are you waiving future fines? MR. PONTE: When was the -- Ms. Kirby, do you know when they started the process of removing the first trailer? In other words, what was the date between the fine being issued and the actual correction being made? Not completed, but started. CHAIRMAN FLEGAL: I think what she said was the first three were gone somewhere around September 3rd. MS. KIRBY: 2nd or 3rd. CHAIRMAN FLEGAL: 2nd or 3rd. So that was even in compliance with our order, those items. MR. PONTE: Yes. MS. KIRBY: Also, I would like to just state that I believe they may have been sent to the correct address, I don't know. However, he was getting them through relatives. Relatives were telling him -- relatives were telling Mr. Hernandez what needed to get done. So he wasn't getting this firsthand, he was hearing this from relatives. For whatever reason, they were suppose to be going to Box 1789 and it was going to 1189. But he did get notice, whether it was by mail or through his family, who was living in -- who had gotten that notice. Also, just in consideration of $100 a day fine, which was suggested, I give to the board this, which is -- indicates the value of the property. MS. DUSEK: Ms. Arnold, I have a question to you. Did they ever come to you before they enlisted their attorney to ask for some explanation of what they had to do? Did you ever have any Page 41 June 22,2000 discussions with them before they -- MS. ARNOLD: Me personally, no. They were at the hearing, I believe, in March. MS. KIRBY: They were not at the July 22nd hearing, but they were at the March hearing, which I presented a copy of the transcript where it said they still had three trailers. CHAIRMAN FLEGAL: Let me throw something out for the board to consider. To be -- try to be fair to both parties, since they made this effort prior, and whether they understood totally or not, taking that into consideration, if we reduce the fine to an amount of $50 a day and waived the imposition of -- that gets approximately -- makes a $9,000 fine plus costs, which is $577 and something. So you're ballparking a $10,000 number for the problem. So we would be reducing the fine substantially, and yet imposing something that I feel is reasonable for what is left. I understand the value of the property and all that. But I personally am not for waiving the fine totally. I would think $50 a day and the first six months. I mean, you're looking at 180 days, that works out to roughly $9,000, plus the costs, which are $577 and some cents. That would seem reasonable at this point, based on what Ms. Kirby has told us. How does that sit with the folks? If Diane was closer, I think she'd hit me. MR. PONTE: The money sits right, but the -- I'm not sure about the number of days. That is the other multiplier. CHAIRMAN FLEGAL: Well, I didn't do it exactly. I just took -- it's roughly six months. So, I mean, it may be a couple of days either way. So I just used 30 days and a month, so -- MR. PONTE: But unless I'm missing a point, they were in compliance. CHAIRMAN FLEGAL: But not totally. MR. PONTE: But not totally. CHAIRMAN FLEGAL: That's why I went from 250 down to 50. MR. PONTE: But they didn't understand it. So that being the case, the $50 is still high. MS. DUSEK: I have a problem with the fact that they didn't understand it. Because they were here for one of the hearings. So I'm having a problem with that. MS. KIRBY: If you'll read the March 23rd transcript, the Page 42 June 22,2000 correct information was not presented to the board. I think you can see where confusion may come in. The inspector was telling them that there were still three trailers. They knew that there was not three trailers, that there was only one trailer. They were told they had to remove three trailers. I think there's been confusion from the beginning. Whether whose fault, you know, I wouldn't venture to say whose fault. Certainly when people need to comply, they need to comply and do what they need to do to comply. But $50 a day is still very high, I would argue. MS. TAYLOR: You want us to just say forget the whole thing, right? MS. KIRBY: No, I do not. But I would -- MS. TAYLOR: It's not going to happen. MS. KIRBY: I'm not saying it will. But I would like to board to consider the fact that they made efforts to comply, thought that they were in compliance, and I think that's verified by the record. By the record. CHAIRMAN FLEGAL: I don't-- MS. KIRBY: And I -- I hate to -- could I just state one more thing? CHAIRMAN FLEGAI.: Sure. MS. KIRBY: At the last -- there was discussion at the last -- on the last case where there were seven cars on the property. These people are not charged with a recurring violation, they were charged with a violation. I have to, you know, state I didn't understand the confusion with the prior case, because the order states that any violation of the ordinance would be a violation, and we would admit that that has happened. I really didn't see the confusion in the earlier case. If there's a violation, there's a violation. So why do you need to notice every car? But there was consideration on this board to the due process rights of these property owners, and I would just ask the same consideration be extended here. They received a violation for three trailers and an RV. They removed three trailers and an RV. They thought that they were in compliance and they tried to come before the board on March 23rd and present that fact to the board. All I'm asking is that these people be given a chance to be heard and that their due process rights be followed. Page 43 June 22,2000 CHAIRMAN FLEGAL: You gave us this information and highlighted some items where it says one trailer, one trailer, one trailer. What you didn't highlight is down in March where an additional trailer was added to the site. MS. KIRBY: I think I said in my opening statement -- CHAIRMAN FLEGAL: So, I mean, I don't have a problem with $50 for one trailer, I'm sorry. That's reasonable to me. The number of trailers in the beginning may have had a factor on the 250, and I'm willing to bring it down to $50 for a trailer. You must understand, we're also willing to waive an additional 76 days worth of fines, which, you know, at 50 bucks a day -- I mean, if you'd like us to reduce it to $25 and add in the other 76 days, I mean, it's all math. MS. KIRBY: I'm not arguing the -- I appreciate the reduction. I would just like to point out that I did say in the opening statement that at some point when these people were in Tennessee that the RV was brought back onto the -- CHAIRMAN FLEGAL: Well, I mean, see, they knew they weren't allowed to have stuff, but yet they're bringing stuff back. MS. KIRBY: They didn't bring it back. CHAIRMAN FLEGAL: So, I mean, we have to understand that you don't get the whole apple either. So you can't plead ignorance when they knew they took some stuff off but they turn around and bring some stuff back, so, you know -- MS. KIRBY: I apologize-- CHAIRMAN FLEGAL.' -- it works on both people's sides here. MS. KIRBY: I apologize to the board if it appears that I'm trying to make excuses. I'm trying to present mitigating factors to the board only. MR. LEHMANN: And Mr. Chairman, what you have just mentioned is supported in the minutes of the meeting also. CHAIRMAN FLEGAL: Yeah, I don't know, I guess I would recommend to the board, I feel that a reduction down to $50 would be fair and waive the remaining 76 days, and that's the best that we're going to do. MS. DUSEK: I'd like to make a motion to that fact, that we reduce the fine to $50 for the first period of the violation and waive the 76-day period of the violation. MR. PONTE: I would second the motion. CHAIRMAN FLEGAL: The motion covers the period Page 44 June 22,2000 September 6th through March 8th. That's when our first imposition of fines covered. Reduce from 250 a day down to 50 a day. And that we also waive the outstanding fine, which runs from March 9th through May 24th. I would ask that you amend your motion to include the operational costs incurred, which are the 577 -- $577.10. MS. DUSEK: So amended. MR. PONTE: Second. CHAIRMAN FLEGAL: Everybody understand? Any question? MS. KIRBY: Who prepares the order? CHAIRMAN FLEGAL: All those in favor, signify by saying aye. MS. DUSEK-' Aye. CHAIRMAN FLEGAL: MS. GODFREY: Aye. MR. LEHMANN: Aye. MR. PONTE: Aye. CHAIRMAN FLEGAL: MS. TAYLOR: Yes. CHAIRMAN FLEGAL: Any opposed? Okay, one opposed. So ordered. Do you understand, Ms. Kirby? MS. KIRBY: Yes, and thank you very much. CHAIRMAN FLEGAL: All right. MS. TAYLOR: May I say something -- CHAIRMAN FLEGAL: Yes, ma'am. MS. TAYLOR: -- Chairman Flegal? I'm sitting here listening to all of this, and that these -- they don't speak English, they come into our country and they do these things. They don't take anything seriously. And if one of us went into Mexico and did these things, you know where we would land? In some prison. We would never see the light of day again. And I'm just thinking all these things. And we are so lenient about some of this. End of statement. CHAIRMAN FLEGAL: I understand what you're saying. There is no other new business. We're down to -- MS. ARNOLD: Reports. CHAIRMAN FLEGAL: -- reports. And we've -- I think it's superfluous, we've handled your affidavit of compliance. I see the county attorney is here, and if nobody minds, why Page 45 June 22, 2000 don't we make a quick jump and let's get down to these reports so that we can not take up too much of county attorney's time. MS. ARNOLD: So we're going down to foreclosures? CHAIRMAN FLEGAL: Yeah, let's go to foreclosures so we can get to at least that, and -- MR. MANALICH: Good morning, Mr. Chairman, members of the board. For the record, Ramiro Manalich, chief assistant county attorney. Also present today is Robert Zachary, assistant county attorney. Pleasure is always to be before you. Michelle Arnold and I spoke before today's meeting to give you a little update on the foreclosures' big picture. And I want to start off by mentioning that Ms. Vasquez is no longer with our office, and I think she did a fine job in advising staff. However, because of her loss, we've had to regroup a little bit. We -- it's very clear to me that you've sent a very clear message, in talking with Michelle, that you want us to aggressively pursue these foreclosures matters. And that is going to be our mission and our guiding principle. I believe there's been distributed to you a list that Ms. Arnold's prepared of the pending items. And at this point what I want to tell you is that we have hired an attorney in the office, Ellen Chadwell, who does have substantial private and public sector experience in dealing with foreclosures. Given the number of cases that we have pending now and that in the future may be directed by you to go to foreclosure, we will be charging her with having ongoing direct responsibility for this to continue to move these cases forward. And I would propose that she can come back to you probably in 60 days for an update on the filings on all of these cases. But I can give you some information on that today, based on the list of cases you've already directed. We have -- I believe there's been 10 cases that you've previously given direction to go forward at the foreclosure proceedings. Our analysis indicates on at least -- well, two of those have been filed, on the Parks matter -- and Michelle, do you recall offhand the other one item? MS. ARNOLD: It's the Varano case. You have a spreadsheet that is noted, pending foreclosure, Code Enforcement Board, and it has highlighted areas. And what we forwarded to the county attorney's office was 12 cases, two Page 46 June 22, 2000 of which, which is the Filostin case and the Catete cases, we're not recommending foreclosure on. The Filostin case is a homesteaded property, and the other case is -- they've paid in full. MR. MANALICH: Now, I'm doing the -- like I said, two have already been filed, Varano and Parks. Of the remainder, a total of seven we think are proper for, from a cost benefit analysis, foreclosure filing. There are three that may not be, and I'll address those first. The Irgang case, we have discovered that there's a federal tax lien in excess of $300,000 on the property, which I understand from Ellen's initial workup that that may be far in excess of the value of the property. So we'll have to consider whether that is worth pursuing or not. Typically that would have a priority status, that type of lien over ours. Another matter, the Geatches case, they're -- apparently previous to us taking any action, a bank that had a preexisting mortgage had foreclosed on this property. Final judgment was entered in 1998 in the approximate amount of $47,000, which is the value of the property. The property owner then went into bankruptcy, so we're researching whether they have other property that we could pursue. The other case that might be problematic is Hill. Because our research indicates that that property is homesteaded, and we are prohibited by the statute obviously for foreclosing on homestead. CHAIRMAN FLEGAL: Yeah, I just heard Michelle say that I guess on Filostin that they weren't going to recommend foreclosure because of-- MS. ARNOLD: It is homesteaded. CHAIRMAN FLEGAL: -- homestead. Two items. Okay, first of all, the board recommends to you who gets foreclosed on, not the county. She don't work for the board. The board recommends you foreclose. That's what the statute says. What Michelle says doesn't count. We need to understand that. MR. MANALICH: No, we do understand, Mr. Chairman. We -- CHAIRMAN FLEGAL: Okay. Secondly, the statute also says that we can foreclose on other things other than land. We have personal property. The statute gives us -- so they may have a lot Page 47 June 22,2000 of other things, so just because the land value or the land is homesteaded, let's not quit and run and hide. The county's due the money. Let's see if there's another way to get the money. Let's investigate that. MR. MANALICH.' Correct. And, you know, that's -- and what we'll have to do, and obviously give you -- and what we propose, to give you periodic updates, as we discover this information, is on those types of angles whether -- the cost benefit analysis, what it would cost to pursue that versus what do they have that we discover. And again, it's not our intent here, either Michelle or mine, to make these decisions, you know, without the board. I mean, it's obvious we're coming here to report to you and following your direction. CHAIRMAN FLEGAL.' Well, I mean, I keep getting the opinion every now and then that the board, and maybe it's because I do the speaking, I say I want something foreclosed on, and then the next thing I hear is the county says well, we're not going to recommend that to the county attorney. That's not their decision. If I on behalf of the board say foreclose, then you need to come to me and say this is why the county doesn't want to do it. Not Michelle. Okay? That's what I want to hear. You tell me why. MR. MANALICH: And we're happy to do that. And we propose, as a matter of fact, to have these periodic updates, the first of which would be in 60 days. And I think we're just seeking their input as to, you know, the information we gather about the case. CHAIRMAN FLEGAL.' I mean, I want to get away from this one that -- we have a bunch of these from '91. I mean, there's no way we're ever going to collect all this money, I understand that. But we ought to do something. And currently we're not going to let them get that far out, because the law says after three months we have the right to tell you foreclose on it. And that's what I'm going to try to do from now on, keep track of these so when the three-month period ends, if they haven't paid, then I want them. These people need to understand when they come here and we argue and fuss and fight and fume and we set an order, comply with it. If you don't, there's a penalty in addition. You know, where the judge puts you in jail, we can't do that, but we Page 48 June 22,2000 can take your property. And we're going to do that. We're not going to get it to $410,000 on an $8,000 piece of property. I mean, that's ludicrous. So that's what I'm trying to gear us into. We first got to do something with the old ones, and that's why we're asking you to tell us what you're doing. And if it's not feasible, tell me why so that we can understand that. And then we'll need to decide do we want to say okay, this is never going to happen, they don't own anything, we can't take cars or bank accounts. I mean, we're done. And we need to get it off the books because it's just a waste of your time and our time to think about it. MS. ARNOLD: With all due respect, Chairman, I was not instructing the county attorney's office not to proceed with anything. I was merely giving you my recommendation, which I have in the past. CHAIRMAN FLEGAL: Okay. MR. MANALICH: One of those -- when I first started our discussion, we understand that your message is loud and clear, Mr. Chairman and members of the board, which is that you view this as very important as far as a method of ensuring compliance and encouraging compliance by those that may come before you. So obviously we're going to give it that type of priority within our office. And I think with the person that we've hired now, we have the ability to do that. CHAIRMAN FLEGAL: Okay, that's great. MR. PONTE: One of the things you might consider doing is asking Ms. Chadwell to set up a schedule for reports on a quarterly basis. I think one of the frustrations was that although initially started on a quarterly basis, that some fell along the wayside, and the lack of information became a source of frustration. So if we could have a quarterly report, I think that would be a good idea, Mr. Chairman. CHAIRMAN FLEGAL: That sounds terrific. I mean, we're looking for the -- since our direction is to the county attorney's office to take action, I would hope that the county attorney's office would be the one to respond back that this is what we're doing, so that we know that you're at least doing something. As it is, we're kind of sitting up here and from month to month we say where do we stand on foreclosures? And of course Michelle says well, I'll find out. And for whatever reason, Page 49 June 22, 2000 things happen. We know that. We never get a report. And time goes on. And I mean, in "X" years, you know, we still haven't ever foreclosed on anybody. I mean, what are we doing? I've been involved in some foreclosures. This isn't a two-year venture. I mean, you know. MR. MANALICH: No, I think the time frame reasonably I think is six months to a year to go through the process, by my calculation. CHAIRMAN FLEGAL: I mean, it's -- something should be happening. And we need to know what we're doing and how many and based on the cases that we have and noncompliance or nonpayment, for lack of a better word. I can see cases being added almost monthly or definitely quarterly. And so, you know, your list can grow substantially, so -- but what's happening to the ones that are already on the list? You know, where are we? What are we doing? What's the status? You're still looking up information? No, we've filed the papers. It's actually, you know, on the docket or something, so that we know, they are making progress, we're not sitting here just hoping. MR. MANALICH: I think at this point we'll take up Mr. Ponte's suggestion of the quarterly reports. But to begin with, I think in -- and I don't know if you have a meeting next month, but certainly -- do you have one in July? Do you have one in August? MS. ARNOLD: We have one monthly. MR. MANALICH: Okay. What I would propose, for us to have a meaningful response to you, I think in the August meeting we can come in and I think a lot of these will already be underway and we can give you a very specific report through Ms. Chadwell. CHAIRMAN FLEGAL: That would be great. Terrific. MR. MANALICH: And, you know, I apologize that perhaps that hadn't occurred before on behalf of our office. Ms. Vasquez, although she served our office very well, had a number of other duties. Obviously this has grown to a point where we need, as we're now designating a person to shepherd this specifically. CHAIRMAN FLEGAL: ¥eah, I think it's good for the county. We're charged with making these decisions, but we never see the -- it's like we're sitting up here arguing with each other to get the best thing we can for not only the people but the county and then it kind of dies. And that's what's frustrating to us. The normal person out in the county kind of sits there and thinks ah, Page 50 June 22,2000 don't worry about what they tell you, nothing's ever going to happen. No, you have to understand, we have a big stick and we're going to wield it. That's just the way it is. MR. MANALICH: Well, we will be back reporting back to you directly on a regular basis. CHAIRMAN FLEGAL: Terrific, sir. We appreciate your information and your candor. MR. MANALICH: Okay. Well, we're always seeking to improve the process, and I think we have a good opportunity here. CHAIRMAN FLEGAL: That's great. MR. PONTE: Thank you very much. CHAIRMAN FLEGAL: Thank you, sir. MS. ARNOLD: If I could ask Ramiro, you had indicated Hill. You all did some research on Hill's case? Because the board's order was for personal property. MR. MANALICH: Right. I was just making a point there that that one is homesteaded, though. We will need to pursue if there's personal property or other real property to go after. MS. ARNOLD: Which one is homestead? MR. MANALICH: I don't have the detail on that. It's just the note that Ellen left. Because she -- MS. ARNOLD: Oh, okay. MR. MANALICH: But, I mean, obviously the board made it pretty clear to check every lead. MS. RAWSON: I remember that case. I think that was incident to a divorce. MS. ARNOLD: Yeah. MS. RAWSON: I think the wife lives there and they were both cited. MS. ARNOLD: Actually, and the board's order was modified to just cite Mr. Hill. Correct. And it cited specifically any property that he MS. RAWSON: MS. ARNOLD: holds. MS. RAWSON: MS. ARNOLD: Mrs. Hill. That's right. So it's only for Mr. Hill and it doesn't refer to CHAIRMAN FLEGAL: But it's my understanding, Ms. Rawson, that when we impose -- when we file our orders and it Page 51 June 22,2000 automatically becomes a lien, that under the statute we don't have to say personal property. It's automatically included. MS. RAWSON: That's right. MS. ARNOLD: Right. CHAIRMAN FLEGAL: I mean-- MS. RAWSON: Any property of value. CHAIRMAN FLEGAL: Anything they have. MS. RAWSON: Anything of value that they have that you can CHAIRMAN FLEGAL: We don't -- MS. RAWSON: -- seize upon. CHAIRMAN FLEGAL: -- have to say one or the other. It's just automatic. I would like you, if I could, when you make a report to us, tell us the status of this 95-006, Parks. MR. MANALICH: That case has been filed, is in the court system. The problem we've had, as I understand it, is with regard to service on Ronnie Parks, to whom the property was apparently transferred by Larry. And when the sheriff went out to serve him, my report is that he was told that this person was in the military in the Navy overseas somewhere near Japan. Now, obviously we have to do some due diligence on that to follow up on that. Ultimately I believe we can, if they're unavailable and we can show diligence to that effect, we are able to serve them by publication and still go forward. But more recently, I think Mr. Zachary was telling me that we have been checking on that, and that information that the sheriff received may not be accurate, and Mr. Parks may be locally. So we're checking that out. CHAIRMAN FLEGAL: Okay. I guess the question I would have is, if we filed this back in '95 against the property owner at that time, and then to get out of it, they turn around and sell it to their grandmother or somebody else, where does our lien run? MS. RAWSON: Well, the lien runs with the land, obviously. And so that was probably a quitclaim deed, not a warranty deed. We didn't release the lien. So the lien is still on the land, without question. But you still can collect from the individuals cited. CHAIRMAN FLEGAL: Right. In other words, just because Page 52 June 22, 2000 you run off, it doesn't mean oh, well, now I don't have to pay the fine, my brother-in-law does, because I sold him the land. MS. RAWSON: No. CHAIRMAN FLEGAL: So, I mean -- so if one Parks sells to another Parks, I mean, I want us to get the original Parks. He was the problem. So let's look at him, too. MR. MANALICH: Yeah, I think with this particular parcel, what we're doing is just trying to comply, show the court that we've tried to notify all who have an ownership interest. But I think you're correct as far as the responsibility for the fines. CHAIRMAN FLEGAL: Yeah. Okay, good. MS. ARNOLD: Can I just ask for one other clarification? Is the board directing the county attorney's office to proceed with the foreclosure on Catete, which is the one that they've paid? CHAIRMAN FLEGAL: Well, if it's paid, then they don't owe anything. MS. ARNOLD: Well, there -- I'm just getting clarification. Because your statement was that you want him to proceed with all of them, and I just was trying to -- CHAIRMAN FLEGAL: Well, but if they've paid, then there isn't any-- the lien's been released. MS. ARNOLD: Just a point of clarification. CHAIRMAN FLEGAL: Okay, I guess I'm confused. Because if they've paid, you've released the lien so there's nothing to go after. The lien's done. MS. ARNOLD: We have to satisfy it yet. MR. MANALICH: Okay, thank you, Mr. Chairman -- CHAIRMAN FLEGAL: Thank you, sir. MR. MANALICH: -- board members. CHAIRMAN FLEGAL: Okay, that's the foreclosures. Now, we have three charts, so you'll have to tell us what all these charts mean. One was just pending foreclosure. Okay, that's the one we just talked about? MS. ARNOLD: Correct, it's a two-page -- CHAIRMAN FLEGAL: Then we have another pending -- MS. ARNOLD: -- document. CHAIRMAN FLEGAL: -- foreclosure recommendation. What is -- tell us what that chart means. MS. ARNOLD: Okay, that indicates all cases that have been before the board, and it only includes those cases where no Page 53 June 22,2000 payments been made. We made imposition of fines, but there's -- there's been no payment from the respondent. CHAIRMAN FLEGAL: Okay, so -- MS. ARNOLD: And what it shows is the date that the case was heard, the date of compliance, which was included in the board's order. It also identifies for you the per day amount of the fine. We've also provided you information as to whether or not the case or the violations are -- have been abated. And the total amount of fines that have been imposed. CHAIRMAN FLEGAL: Okay, but when you say foreclosure status pending, are -- is Mr. Manalich already working on these or are they waiting -- MS. ARNOLD: No. CHAIRMAN FLEGAL: -- for us to tell him to work on them? MS. ARNOLD: It's past the three-month period, and we're waiting for a recommendation from the board to forward to the county attorney's office. CHAIRMAN FLEGAL.' Okay. So these 20 cases you're waiting on us to tell him to go, is that what you're telling us? MS. ARNOLD: Correct. MR. PONTE: Michelle, there's one thing. On the fines per day, compliance date, total fines imposed, where did you -- what was your date, your cut-off date? In other words, what did you -- in order to get to the total figure, what was the last date that you MS. ARNOLD: That's based on the imposition of fines when they were imposed. So those are accruing still above that amount. MR. PONTE: Yeah, but my question is, when you calculated this figure, you calculated it through -- MS. ARNOLD: Okay, the next column indicates the imposition of fine dates, so it would be from the compliance date to that date the fine first imposed. CHAIRMAN FLEGAL.' In other words, the first item you're going from August 28th through March 23d, comes up to $170,000. Is that what we're doing, Michelle? First line -- MS. ARNOLD: Yes. CHAIRMAN FLEGAL.' -- item I -- MR. PONTE: Okay, I see. CHAIRMAN FLEGAL: -- from August 28th to March 23rd. Page 54 June 22,2000 MS. ARNOLD: Right. CHAIRMAN FLEGAL: If you multiply it out by 250, we get 170,000. And there's still fines that haven't been imposed because we're way past March 23rd. MS. ARNOLD: Right. CHAIRMAN FLEGAL: Okay, unless the board objects, I don't have any problem directing Mr. Manalich's office to proceed with these 20. Let's get on with it. We're already way up in money on that one item. I'm sure their land probably isn't even -- oh, I know who that one is. MS. ARNOLD: That one's the one where we had the court case and we -- CHAIRMAN FLEGAL: That's fine. MS. ARNOLD: -- just recently did -- CHAIRMAN FLEGAL: But we need him to direct -- MS. ARNOLD: .- the imposition of fines. CHAIRMAN FLEGAL: -- and then he can come back and say whatever. The board in agreement that we direct him to proceed with these 20? Do we have any problems with that? MR. PONTE: I'm just reviewing it. MS. RAWSON.' One of them is No. 9 that we had today. MS. ARNOLD: Yes. CHAIRMAN FLEGAL: Right. MS. RAWSON: That one's taken care of. MR. PONTE: So that was done. CHAIRMAN FLEGAL: Well, they haven't paid yet, so -- MS. RAWSON: That's right. CHAIRMAN FLEGAL: So that doesn't release the lien. Because until they pay, there's still a lien. So they may or may not pay, we don't know yet. MR. LEHMANN: Now, all of these cases have passed the statute of time limit? MS. ARNOLD: Yes. CHAIRMAN FLEGAL: Yes, sir. MR. PONTE: And what about the Southern Exposure case, No. I here? How would we -- where are we -- CHAIRMAN FLEGAL: Well, I think we need to tell Mr. Manalich's office to proceed and then he can come back and tell us that because of court cases or whatever, it's not appropriate Page 55 June 22,2000 to proceed with foreclosure. I think he needs to tell us that. Let the legal people tell us legally what they can do. MS. DUSEK: Just for some clarification on my part, where it says compliance date and then, for example, No. 10 it says staff to abate? MS. ARNOLD: Yeah, that was one where if you recall, there was -- we couldn't contact the property owner, and it was a vehicle that was just there, left abandoned and it was, you know, having animals live in it and everything. And we removed -- the property was abandoned as well. And we secured that property. And then we -- you also directed us to remove the vehicle, and that was done. CHAIRMAN FLEGAL: So the county went and moved the item, so it's in compliance, but it took a few days or whatever. So they do owe $571.64. MS. ARNOLD: Uh-huh. CHAIRMAN FLEGAL: Now, if Mr. Manalich wants to come back and say gee, we're not going to spend $5,000 to process a foreclosure to collect 500, that's fine. But he needs to come and tell us that. That needs to be him giving us information, rather than us just reach out there. MS. ARNOLD: If the board would like to take an action on the whole thing, or if they want me to go through and try to refresh your memory on each case, I'd do that, whatever -- CHAIRMAN FLEGAL: I don't have a -- MS. ARNOLD: -- the pleasure of the board. CHAIRMAN FLEGAL: -- problem, let's go for the whole 20. MR. LEHMANN: Mr. Chairman, I would support you. MR. PONTE: I agree. MS. TAYLOR: I agree. CHAIRMAN FLEGAL: Okay. So Michelle, if you'd tell Mr. Manalich to proceed with these 20. MS. ARNOLD: Okay, what I will do, as we did with the past 12, is bring the item. And it was just a consent item to notify the Board of County Commissioners as to those properties that we're proceeding, just to get their endorsement. And then we'll forward those to the county attorney's office. And while we're preparing it for the board, we'll put together all the documentation that we did prior for the county attorney's office so that they can do the appropriate title search. Page 56 June 22,2000 MR. LEHMANN: As a point of order for this thing, does the board actually need to vote on this to give her direction, or is this CHAIRMAN FLEGAL: No. MR. LEHMANN: -- what we did good enough? CHAIRMAN FLEGAL: It doesn't really have to be a motion to proceed. It's-- MS. RAWSON: Well, I'm not going to write an order. CHAIRMAN FLEGAL: Yeah, I mean, there's no order or anything. This is just kind of a general business item. And if we've got consensus, then as chairman I'm directing the county staff to inform the county attorney to proceed with these 20. Okay? The next item we have is this chart on Code Enforcement Board cases. What does that document tell us? MS. ARNOLD: That's just a complete list for you. And all those items on both lists are included; included all the cases that the board's heard and their status. CHAIRMAN FLEGAL: Okay. Let's try the -- if there are no questions, Mr. Keiser and Southern Exposure's letter. Before we start, I did call Ms. Rawson, when I got my book, to ask her what this was, and she and I had a little talk about it. I guess I need to tell staff, in reading these, I notice both these documents were dated May 15th. One letter dated May 12th, received May 15th at code enforcement. First I saw these were the other day when I got my book. I think when something comes addressed to the Code Enforcement Board, we should be advised that we have something. MS. ARNOLD: So noted. MS. RAWSON: Now, if you're ready for me, I'll -- CHAIRMAN FLEGAL: Yes, ma'am. MS. RAWSON: -- bring you up to date with this case. The two items that are in your packet today, and one was a letter from Mr. Rynders which is dated May the 12th, which was actually not served on me, but of course the county attorney, as well as the county staff saw to it that I got a copy. For legal reasons, mostly because this is a constitutional argument that you have no control over, we did not answer Mr. Rynders' letter. Page 57 June 22,2000 The second item that's in your book is the order to show cause, which was entered by Judge Brousseau, which was served on me as your attorney. We did not report to you on May the 25th or whatever our last meeting was, because we weren't ready to report to you. And also, because we entered into a stipulated agreement to extend the time to respond. So we hadn't started on the brief. The brief is due tomorrow. And I don't have it for you today. It's quite lengthy. I might say that Melissa Vasquez, before she left, probably spent her whole last week working on it. And I'll probably get it later this afternoon from the county and we'll sign it and it will be filed in due time by tomorrow. I put on your desk today a report, and I tried to explain -- and I will go through this with you. I tried to explain most of the legal terms, if I could, and put them in parenthesis. Most of you of course are familiar with this case, and you know that recently we imposed fines. As a matter of fact, I think it was on March the 31st we imposed fines, which has really led to this order to show cause. But basically this arrives out of -- originated with a case on February 26th, 1998. Some of you were on the -- I guess that's the north board at the time, and were there when the case first came up. Some of you were not. Some of you were on the south board. And some of you were not on the board. But it rises out of a failure of Mr. Keiser and the Southern Exposure to apply for and obtain a conditional use permit by August the 28th, 1998 and correct violations existing by obtaining the permits and getting a CO by March the 20th, 1998. And then you issued fines, or the board at that time did, fines of 250 a day for every violation -- the first violation, and $100 a day for every violation of the second violation. Mr. Keiser and his counsel did not comply with the order, nor did they appeal the order. What they did instead is go to the United States District Court for the Middle District of Florida, which is a federal court, as opposed to our state court here. And he asked for declaratory relief and requested a writ of certiorari, which means the power to bring the case up to be heard by a higher court. Mostly his arguments were and still are constitutional in Page 58 June 22,2000 nature. He basically says that the county has denied -- the board, the county enforcement board, denied his Fourteenth Amendment due process rights. So I put in the parenthesis really what that means. Due process means you have notice -- we talk about that every month -- a right to be heard and a right to a decision by an impartial tribunal. He said we violated his rights. Then what you can't rule upon, they said the ordinance, the county ordinance, was unconstitutional in two ways. First of all, they say that it violates the First Amendment right of freedom of expression and association on private land, because you are trying to violate Southern Exposure's rights of freedom of expression in this ordinance. And second, that the ordinance is also unconstitutional as written because it's requiring a conditional use permit. And it's a conditional use permit for a social organization, and there's no proposed development, so his argument is that that is also unconstitutional. Now, what happened in the -- it lingered for some time in the federal court. What happened with the federal court action is that the district court granted a motion to dismiss, filed by the County Code Enforcement Board and the county, jointly to dismiss. And that then was appealed and then that was affirmed. And the reason that the court dismissed it is the court said it's not ripe. In other words, there's a lack of ripeness. And that sounds -- that's a term which means very much what it sounds like. You know, you don't want to eat your tomato until it's ripe. You don't want to make a ruling on something unless it's ripe, unless everything has been done in the courts below or in the administrative agencies below to make it ready for the court to rule upon. And Mr. Rynders, who's the attorney for Southern Exposure, has alleged that it's not ripe because it's -- the formalized decision, which was your order, was wrong because you hadn't imposed the fines. Now, we believe, and I think the law will sustain the fact, that your compliance order of February 26, 1998 is a final appealable order. And that's not what the court meant as about what was being ripe. The county and the Code Enforcement Board are taking the Page 59 June 22,2000 position that what the court meant was you can't have constitutional claims against an ordinance until you get your conditional use permit first, and then you can challenge it. And at that time he never had gotten his conditional use permit. Now, it comes back before us. Most of you remember, most of you were here. And the argument from the other side was of course that we misled the Eleventh Circuit because we led them to believe that he hadn't really been damaged, because you'd never really imposed fines. That of course the county and the Code Enforcement Board attorney vehemently disagreed with, that we certainly had not misled the Eleventh Circuit because we hadn't imposed the fines, that he had had notice from the very beginning that fines would be imposed. So when he was here before you and the order of March 31st, you imposed the fines. The fines are $170,550. So in response to your order imposing the fines, he now files a petition for certiorari in this court, the Twentieth Judicial Circuit Court, to -- and that's what's in your packet. The order to show cause was then issued by Judge Brousseau, asking us to file a very detailed response and asking us to respond to each one of his arguments. And there's about 10 of them. So what I've tried to do is summarize for you what those arguments say, without giving you a copy of his brief, because it would be tedious for you to try to figure it out if you read the brief. And I would have shared our brief with you, but -- our response with you, but as I said, it's not due until tomorrow and we haven't signed it yet. But we have jointly filed a response, the county and the Code Enforcement Board. They've alleged basically that your not imposing these fines for two years after the original order is a departure from the essential requirements of law. Basically says it offends his commonsense principles of due process, that you waited two years. Now, of course, you weren't the one who caused a delay, it was the federal court that caused a delay. And remember, when you went to the federal court, it wasn't to appeal your decision. He said that the delay caused severe harms to the petitioners because now the fines are $170,550, and that you could have utilized another method of enforcement. Well, you Page 60 June 22,2000 utilized your method of enforcement that you always utilize, pursuant to 162. So that's our argument to that. He also argued laches, which is a legal term that means that we had an unreasonable delay, and that caused him prejudice. And he throws into that argument a lot of we misled the Eleventh Circuit because we told the Eleventh Circuit there were no fines imposed yet, so no damage had been incurred. And he was led to believe that no fines would be imposed or that the fines would abate during the period of time that the federal court was -- that action was pending. And that during all that time that the federal court action was pending, his fines continued to mount, and now that -- they're huge and, you know, that the unreasonable delay, which certainly was not caused by us nevertheless has caused him some prejudice, he says, because his fines are so huge. And he also then interestingly enough asks for a reduction in fines from the circuit court, rather than from you. And he says that we did not apply the correct standard of looking at the gravity of violation, any actions taken by the violator to correct the violation, and any previous violations committed by the violator in determining the amount of the fine. Because you had two fines, one was 250 a day and one was $100 a day. And basically we have responses to all of that. And, you know, much law to argue to Judge Brousseau. And our response will be due tomorrow and I'll keep you informed. I assume he will probably have a hearing and there will be some oral argument. And I will appear, along with the county attorney, and we'll let you know what happens. But that's basically the status. I'll be happy to answer any questions that you might have. MS. DUSEK: You summarized that very well. MS. RAWSON: Well, thank you. I tried to summarize it in three pages, rather than give you Mr. Rynders' writ. Although, if I had given you his writ, I would have liked to have given you our response with it. But -- and I did run my three-page summary by the county attorney to be sure that they didn't have any corrections or additions, and that we had properly told you what's going on. But that's the status of the case. Now, I do understand, and maybe Ms. Arnold knows, that they have now obtained a conditional use permit. Page 61 June 22,2000 MS. ARNOLD: They're in the process. They've been before the Planning Commission and are scheduled to go before the board August 1st. MS. RAWSON: So we'll report that to you, too. Because that would be interesting. If they get the conditional use permit, then maybe they'll be back in here asking you for a reduction in their fines. But then it hasn't been granted yet, so we're -- and I'm not sure what Judge Brousseau is going to do when he gets our response, but he'll let us know, and I'll let you know. CHAIRMAN FLEGAL: He's got the power. Good, thank you. We've got two items remaining, the annual -- annual report, or whatever, review item that you added, Michelle. MS. ARNOLD: We have also on there the guidelines for the Sunshine amendments and the code of ethics, and that's provided to you in your booklet in the last tab, and that's just informational items. Those are the recent amendments, for your information. (Ms. Dusek leaves the boardroom.} MS. ARNOLD: And I'm also providing for you, we recently prepared an annual report to -- well, it's each advisory board that the Board of County Commissioners appoints has a schedule for reporting to the board. And that was recently due, and I'm providing that also as an informational item to you. CHAIRMAN FLEGAL: Just for the record, we'll make a note that Ms. Dusek had to leave. MS. RAWSON: Have you already made this to the county? MS. ARNOLD: I don't think they received the report yet. It's -- we're compiling it for the division, and then it's going to the board. MR. PONTE: This argues for stiffer fines. Otherwise, it's just self-liquidating. CHAIRMAN FLEGAL: One of -- two of your items that I'm -- just clarification for me, Michelle. Item 3 where we say imposed fines, is that for just -- what cases? I mean, because we just did -- if this is covering a 12-month period, it was just a couple of months ago we did the item we were just talking about, Southern Exposure, and it itself was $170,000. I mean, Item 3 says accomplishments during the preceding 12-month period, so I don't know where that number comes from. MS. ARNOLD: I think it's for the year 1999, the calendar Page 62 June 22,2000 year 1999, preceding -- CHAIRMAN FLEGAL.: Okay. MS. ARNOLD: And that fine was imposed March 23rd. CHAIRMAN FLEGAL: Of this year? MS. ARNOLD: Yeah. CHAIRMAN FLEGAL: Okay, that's fine. Amended the Code Enforcement Board Ordinance, is there an amendment out in '99 MS. ARNOLD: Yeah, we -- CHAIRMAN FLEGAL.: -- about the posting? MS. ARNOLD: I thought it was in '99 that we did that. MR. LEHMANN: Yeah, there is one. MS. RAWSON: I think it was '99. MS. ARNOLD: Yeah. CHAIRMAN FLEGAL: Well, 99-26-- MR. LEHMANN: 99-26. CHAIRMAN FLEGAL.: -- changed the priority status. The one done in '98 talked about the posting. That's why I was curious. In lieu of publications. 98-20. MR. LEHMANN: Right. MS. ARNOLD: That's the -- then we need to make that correction, because it was a prior year. CHAIRMAN FLEGAL: I couldn't remember any that changed the publication in '99, so that's why I was wondering. Is there one out I haven't seen yet? MS. ARNOLD: Yeah. MR. LEHMANN: You're saying in the last item in there, you enacted Ordinance 96-117 CHAIRMAN FLEGAL: Yeah, and what does that mean, enacted Ordinance 96-117 That ordinance came out in 1996, so we're just now putting it in effect or something? I mean, I don't know. I'm curious. MR. LEHMANN: We used it once in '99. MS. ARNOLD: The Ordinance 99-11 -- I mean, sorry, 96-11 was adopted in '96, but last year you all had a particular case to enforce that particular ordinance, a nuisance abatement case. And that was what that's referring to. MR. LEHMANN: Well, gee, we ought to mention every ordinance that we enforce then. MS. ARNOLD: Well, that's -- I mean, that's one of those that Page 63 June 22,2000 you don't get very often. And that one is the one where there's a lot of coordination with the Sheriff's Office. MR. LEHMANN: Is this the typical format and extent of what is provided to the board every year?. MS. ARNOLD: Yeah. It's basically you answer the questions that are presented. CHAIRMAN FLEGAL: Okay, I guess as a point of convenience, for lack of a better word that I can't come up with right now, how does this report come about? Who asks for it? MS. ARNOLD: As I indicated before, there's a schedule of all the advisory boards. And the Board of County Commissioners' Office asked for, based on that schedule (sic). It indicates when each advisory board is required to submit this report. And ours is due this year. CHAIRMAN FLEGAL: They ask who for the report? I guess that's my-- MS. ARNOLD: The applicable department. Whoever is responsible for administering that particular advisory board. CHAIRMAN FLEGAL: Okay. So they don't ask anything of the board itself? MS. ARNOLD: No, they ask the department directly. CHAIRMAN FLEGAL: Okay. My only reason for putting it in that terminology is with the items I've just pointed out, submitting a report on the board, that is somewhat misleading because some of it isn't actual. MS. ARNOLD: The only item that I've -- if you want me to remove the fact that you guys had a case on that Ordinance 96-11, we'll gladly remove it. And I've indicated for staff that we'll correct that one statement, because it was actually in '98 that we amended that ordinance for posting. We'll make that correction. CHAIRMAN FLEGAL: Yeah, I would just like to know personally, you know, if something's being said -- MS. ARNOLD: And that's why the information was provided to the board, for information. CHAIRMAN FLEGAL: Yeah, I'd like to know before anything is turned in, because this says submitted April 18th, and this happened -- MS. ARNOLD: And it was submitted to the department responsible for compiling it for the entire division. Page 64 June 22, 2000 CHAIRMAN FLEGAL: Because this -- I mean, since it's reflecting on, quote, our performance, I'd like it to be as factual as possible. Because most of the members do put out a great deal of effort, so -- Okay, and the Sunshine information, can we take that with us? MS. ARNOLD: Yes. MR. PONTE: I have a question. CHAIRMAN FLEGAL: Yes, sir. MR. PONTE: The costs incurred by staff for prosecution of these cases totals approximately $94,000. When we issue a fine, we're supposed to be adding costs to the fine. Of the 95 -- $94,000 in operation costs, how much of that have we recouped? In other words, this is not a very efficient operation. You'd almost wonder why have a Code Enforcement Board if it's just a wash between what you collect and what you fine. And the biggest cost is something we should be adding to the fines. CHAIRMAN FLEGAL: Well, we have been -- you know, we have been -- yeah, the cost to prosecute a case before the board is recoverable, all the costs. So in essence, if you -- if your statement is that we heard 137 cases and we found 135 in violation, then of the $94,000, hypothetically, in those 135 cases, the majority of that 94,000 should have been recouped. MR. PONTE: Recouped. CHAIRMAN FLEGAL: And I don't know if that's true or false without pulling out each case to see how much money you've told us and adding it all up. But that's the way that should work. MS. ARNOLD: That's a correct statement. CHAIRMAN FLEGAL: But you get your money back. MR. PONTE: Do you know? I mean, I don't have a clue. MS. ARNOLD: I can't tell you which percent has been recouped, because a part of that is the ones that are not collected yet that you just proceeded for foreclosures. MR. PONTE: Yeah. But is somebody keeping track of it, I guess is my question. I mean, I don't know. MS. ARNOLD: No, we're not, but we could come up with that number, if you'd like us to. CHAIRMAN FLEGAL: I think it would be to your advantage, that if you're going to say it cost about $94,000 for your staff to process, then if there are 135 cases in violation, like I say, if you Page 65 June 22,2000 do the math -- some cost more than others, we understand, but somebody should be able to sit down and add up all our orders for those 135 cases and say oh, yeah, the board has ordered that we recoup $92,600. Because there's a couple of cases that didn't even get -- so we know, or at least you know, and we would probably like to know on your behalf that you're getting your money back, or at least that you're giving us a number and we're ordering somebody to give you your money back. MS. ARNOLD: Sure. But that cost doesn't include those cases like today. For example, we had four cases on the agenda, two of which are in compliance. And we have that happen very frequently. That's not a true number of the operation of the department, you know, for prosecuting cases. Because all those cases that don't make it here, we're not calculating that figure in there. I mean, all it would be showing you is, as the chairman indicated, for those cases that were heard and we assessed the prosecution cost as a part of the penalty, for those that exceeded the compliance date, because we don't collect it if they comply within the board's order, this is the amount that's outstanding that we haven't collected. MR. PONTE: I understand. I guess my concern was that when members of the board read the order and are composing it ad lib here after hearing something, I think frequently board members forget to add the respondent is ordered to reimburse Collier County for the costs. We don't -- MS. ARNOLD: Well, the board members -- or maybe the board members are forgetting, but your counsel is not forgetting. MR. PONTE: Okay, good. MS. RAWSON: It's in all the orders. MR. LEHMANN: But again, that only applies to cases that do not comply by the board's ordered deadline. CHAIRMAN FLEGAL: I don't know, I was going to ask Ms. Rawson, because I haven't got back that far yet in 162. Is that in fact what 162 says? MS. RAWSON: It says that we can assess costs of prosecuting the action, yes. CHAIRMAN FLEGAL.' It doesn't say that they -- if they comply, we still can't collect the money. It just says in prosecuting an action. So if it comes before us and they're found Page 66 June 22,2000 in violation and we give them 30 days to comply, you've prosecuted the case. MS. RAWSON: Well, but you've never issued an imposition of fines, which then included the costs of prosecuting, see. So there really never was a fine and cost order issued. All you're doing is saying that they're not in compliance. If they don't come into compliance within a certain length of time, then the fine per day plus the cost of prosecution will be assessed. You haven't assessed it yet. So you have an order assessing fines and costs, you don't have an order. MR. LEHMANN: We do not have an order to assess costs? MS. RAWSON: That's right. MR. LEHMANN: And once -- MS. RAWSON: And whether or not you can do that, I don't know. Because remember, we're not a punitive board, we're a board that wants compliance. MR. LEHMANN: But at the same time, we're trying to look after the taxpayers' interest also. CHAIRMAN FLEGAL: Well, I can't remember what -- I'll find it. I was just curious that -- can we get the money for prosecuting the case if they're in compliance? And if the answer is no, we can't do that, that's fine. I just couldn't remember how the sentence reads in 162, but I'll find it. MS. RAWSON: The sentence doesn't help you. CHAIRMAN FLEGAL: Okay. MS. RAWSON: I've already looked at it. CHAIRMAN FLEGAL: Well, we tried. MR. PONTE: We did. CHAIRMAN FLEGAL: No other reports? MS. ARNOLD: No. CHAIRMAN FLEGAL: Comments? MS. TAYLOR: I have one. CHAIRMAN FLEGAL: Yes, ma'am. MS. TAYLOR: I just want to say how proud I am of our chairman. I think he does an outstanding job. And I am so proud of Michelle. She does an excellent job. I'm very proud of you, Michelle. MS. ARNOLD: Thank you. CHAIRMAN FLEGAL: I think staff does a great job. MS. GODFREY: Yeah, they do. Page 67 June 22,2000 CHAIRMAN FLEGAL: One comment. I don't know if anybody read Tuesday's paper. It was kind of chuckling to read. Mr. John and Mrs. John who lives in Naples Manor talks about code enforcement. What he's looking for is enforcement, enforcement, enforcement. He obviously doesn't watch Channel 54 or he'd see that we do enforce. I think this board, based on what we just talked to Mr. Manalich about, foreclosures, action is being taken. Maybe not to his satisfaction, but I think the county does put forth a good effort. Our next meeting is July 27th. Any other items? MR. PONTE: Adjournment? CHAIRMAN FLEGAL: I would entertain a motion to depart. MS. TAYLOR: I'll make that motion. CHAIRMAN FLEGAL: Do I hear a second? MS. GODFREY: I'll second it. MR. PONTE: I'll second. CHAIRMAN FLEGAL: We have a motion and second to adjourn. All those in favor, signify by saying aye, please. Thank you very much, folks. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 11:40 a.m. COLLIER COUNTY CODE ENFORCEMENT BOARD CLIFFORD FLEGAL, CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC., BY CHERIE' R. LEONE, RPR Page 68