Code Enforcement - Regular Meeting

Okay. And the next one, please.

That's the one that says 2021 on it. Right. 2022 photograph.

Mister Muldoon, is that also marked as

property appraiser right here.

Okay. So that was also drawn from the property appraiser?

Says, I wrote 2022 just to make it larger. But if you look closer, it says 2022 aerial photography right there.

The previous one shows the same year?

Previous one. This one says 2020 aerial photography. Right. This says 2021.

Okay. Thank you. Mister Davis, I'm sorry. Do you have any questions for mister Moglund?

I think he already objected to them, and I overruled the objection. I'm going to allow them into evidence. But if you wanna say anything further, go ahead.

No questions based on what the special magistrate just stated.

Okay. Thank you. So did you have any questions or any further presentation on behalf of the city?

I do. I I wanna call mister Dan Smith, please.

I will allow for reasonable cross examination. But if it's all right, I think I'll wait until they finish with their presentation. Hi. Hi. Good morning.

Daniel Smith, director of community affairs.

Yes, sir.

This actually dates back to violation that occurred in 11/05/2021, and, I will pull up that violation.

Martin, can you zoom out, please? And

this was for the same boat canopies that we're discussing today. At the time of the, violation, the code at that time and that code has been in place since

Mister Smith, I'm sorry. Could you put that back up there, please?

Oh, this?

I'm sorry. Yeah. And and I wanna just get the top. Scroll down. Yeah. Okay. So the date of this violation is 11/05/2021. I'm sorry. And the and and just push the paper up a little, please, so we can again see the We wanna we wanna now see the bottom. Okay. So the magistrate has a chance to read what the violation is there. I'm sorry.

Okay. I've read it. I've read that.

Okay. Mister, do you have the other paperwork regarding that one particular case file?

I don't.

Is separate case, your honor. This is not

available It's very relevant, your honor, especially to, in anticipation of the defenses to be raised.

I'm not sure what section you're talking about. The Now

is this for both canopies or one canopy?

This for the both canopies also.

Both? Both.

This this particular violation, your honor, the the previous one in 2021 that he was showing the notice of violation, it's only on the one because there was only one at the time.

He just said it was on both.

I assume it was on both.

No. Okay.

It's only on the one. Okay. And that's all we're presenting it as.

Okay.

And the next page, please. Mister Smith, this is a photograph taken for the, for the violation back in 2021. Correct? That's correct. And and it was in the case file for this under this case number, the city's case file?

That's correct.

And was taken by code officer Ira Warder as indicated by the email by the name on the top of the email?

Correct. Okay.

Please continue.

The code, land development code or the the code of ordinances section fifty four one zero one at that time describes boat covers as a portable or fixed aluminum PVC galvanized or similar structure, which is attached to a dock or boat lift in which the structure is covered with canvas, vinyl, aluminum, or similar material and utilized for protecting a vessel over contiguous to navigable waters. As you can see in section fifty four one one six under boathouses, the city shall not permit the construction of a new boathouse, boat covers, gazebos, or similar covered structures extending over navigable waterways in any zoning district. Is the actual ordinance, zero zero zero four. That has that same language.

Mister Smith, so so leave leave that up. You can push up just a little bit more. Martin, if you could just zoom in, on that highlighted section. Thank you. That's good.

Mister magistrate, when you're ready to for him to change the page.

Okay.

Okay. And, mister Smith, if you could please put on page eight of that same, ordinance document.

What was the number of that ordinance?

It is, 2,000 dash zero four. Mister Smith, the the section that's highlighted there, paragraph one, is that the code that was in effect back in November 2021?

That's correct.

Okay. And and if you could just read to the record, what that highlighted section says.

The city of Marco Island shall not permit the construction of new boathouses, boat covers, gazebos, or similar covered structures extending over navigable waterways in any zoning district.

Okay. In fact, this ordinance was changed eventually. Correct?

That's correct.

Okay. When was it changed relevant to this particular violation?

Now this is we're talking about the first violation. You said this particular today's violation? Or

That's correct. And and now then I'll when once we cover this, then I will tie it into the present case number that's before, your honor.

That was changed and adopted 05/02/2022 in ordinance 22 dash o five.

We're bringing to attention mister Smith to the ordinance 22 dash zero five. First off, if you can go all the way to the to the back and see what the date, the effective date of this ordinance was. So above the signature, it says Go ahead and read that into the record, please.

May.

Well, read

that whole sentence.

Adopted by the city of Mark our city council of the city of Marco Island, the May 2022.

Okay. And then if you can go back to, the beginning and and go to page two, please. And if I could just draw the attention of of the magistrate to the highlighted section. As your honor as mister magistrate is familiar, whenever there's changing in statutes or ordinances or codes, the originals have a line through, a strike through, and then the additions are underlined. So so mister Smith, please describe how this change what what the changes are in this code, please.

Changes in this code, changes the definition of, boat cover to boat dot canopy and boat lift canopy. But it keeps everything else the same as far as the definition. And this ordinance also allows boat canopies as an allowed use, a permitted allowed use.

So go ahead and go to the page that's tabbed with the green tab, please. Mister Smith, turning your attention to the highlighted section, which is Marco Island Ordinance 54 dash one sixteen. Could you please read into the record what that highlighted paragraph says? District. The city may approve through a conditional use

process gazebos where authorized nautical garages with cut in slips.

Okay. So

what changed? And and and by the way, sir, please, your your job for the city of Marco Island entails the interpretation of the city's code. Correct?

That's correct. And

you oversee the building department

Planning department.

Planning department. Is code of no. Code of Fortune is the city.

Parks and

Recreation. Parks and Alright. So so it it is in your in your job purview to be interpreting this code and and you interpret this code to mean what?

It means that your, boathouses, gazebos are now, illegal, structures, but boat canopies are allowed under this ordinance under conditions.

Conditions such as?

Conditions do want me to go to that section?

Please. Okay. I guess what I wanna get to is before you go there is is Okay. Are are boat canopies or boat covers allowed with a permit now?

That's correct.

Okay. But back in 2021 and before May 2022, they were not allowed at all.

That's correct. They were prohibited.

Okay. Was there a section you wanted to

Yes. I just wanted to show section what This would be section fifty four one one six c, which is this section right here. Boat dock canopy and boat lift canopies shall be permitted within the city's required setback and protrusion limits over an existing boat dock V area or lift attached to a dock lift legally permitted by the, resettlement local, state and federal agencies. If the following criteria occurs, canopy cover material shall be made of soft maintenance material or soft membrane material. A Canopy over material shall be of a uniform non reflective single color per primary residential building.

Canopy covers material should not

I'm sorry. I'm sorry to interrupt you, but I just want to get to really if there's anything in these additions to the code that's relevant for the current violation that's charged. Besides the permit issues, is there anything else?

Not, I wouldn't know because unless they come in for permit, I'd have to do the review.

Okay. So, these are things that would be looked at when if somebody applies for a permit.

That's correct. Okay.

Alright. Thank you. One last thing if you could mister Smith. Could you have available with the 2,000 ordinance 2,000 dash zero four, get to the definition of boat cover. And then, with this one, to the definition of boat canopy again. I just wanna compare and contrast the two, please.

Here's boat cover. A portable or fixed aluminum PVC galvanized or similar structure which is attached to a dock or boat lift and covered with canvas, vinyl, aluminum or similar material and utilized for protecting a vessel over the contiguous to navigable waters, a boat cover shall be considered or qualify as a boathouse and should not be repaired or reconstructed. A covering commonly referred as a mooring cover which is fixed to the vessel for the proposed or protecting a vessel shall be considered a boat cover. Okay.

And and then just if you could just show you don't have to read it back into the record, but just go out on the 2022, the May 2022 ordinance. Just show the definition again. And

Boat dot canopy and boat lift canopy means a portable or permanent fixed PVC galvanized or similar structure which is attached to the dock or lift and which structure is covered with canvas vinyl or similar soft membrane material and utilized for protecting a vessel over a contiguous to navigable water. A canopy should not be considered or qualified as a boathouse and should not be installed, repaired or reconstructed. A covering commonly known as mooring cover which is fixed to the vessel for the purposes of protecting the vessel, shall not be considered a boat canopy.

Okay. And mister Smith, so if I could just sum up what your testimony is after showing all these all this documentation. Back in November 2021, did the city of Marco Island allow the construction of boat covers or canopies?

No.

When did they start allowing the construction of boat covers or canopies with a permit?

05/02/2022.

So one built in December I'm sorry, one built in April 2021 and one built in February 2022 would fall under the existing code at the that before it was changed in May 2022.

That's correct.

Okay.

And that's those were not permitted to be built at all?

Correct.

I have no further questions for mister Smith. Okay.

Let's go ahead and have some cross examination while we're thinking about the issue.

I don't have any cross, mister special magistrate, because I have an objection to any and all testimony and evidence that relates to a matter that's not noticed today, which is what you just heard from mister Smith?

I'm sorry. What's not what's not with us today? So

at the beginning of mister Smith's presentation, I was trying to inform the special magistrate that the the documents that he were he was presenting to you and the notice of violation that he was presenting to you is not the notice of violation that's before your honor today as noticed in the notice of hearing for today. It is a separate pending notice of violation.

So you're talking you're talking about one of the two is not Right.

No, your no, your honor. So there are two boat canopies on the property. There are two separate notices of violation, one which was with two different legal basis for that. One was noticed for today, which references the 2022 ordinance, specifically 54 dash one one six c, and one that was never noticed for today, which is all of the material that you heard from mister Smith about boat boat covers, the prior definitions, and and all of that. I I I have I have a presentation for you, your honor, on the specifics of all of that.

But there there there is a specific code provision that was noticed for today's or that that that relates to today's hearing, which they're claiming is two boat canopies. The notice of violation articulates one boat canopy. But there's in in addition to the one versus two boat canopy piece, mister special magistrate, there is a separate pending notice of violation, which was not noticed today. I spoke with mister city attorney about that this morning, and he said he was aware of that. And and and there's been no noticing with respect to that violation.

The only notice for your honor today is a a notice that references the 2022 ordinance, which was passed after my client constructed the canopies. Okay.

Thank you.

May I respond, your honor?

Yeah. We're we're getting into argument rather than perhaps rather than cross examination. But since you opened it up yeah. Let's

so that prior case in 2021 is not offered here today for the purpose of seeking a finding of fact or finding of a violation or any types of orders on that case. That case is not an issue except for the fact as for its evidentiary value in the current prosecution which has been noticed today. We are not trying the 2021 violation today. We're trying the violation that's been noticed for today.

Well, it kinda sounded to me like you are trying both violations. Your but your your notice of violation the second notice of violation refers to both canopies, does it not? Correct. So if you if you have a separate notice of violation that's out for one canopy and this violation for two canopies of which one is, subject of another violation, then then something's wrong there. You can't have you can't have one of them out there and then have another one cover both.

Your honor, the the the 2021 violation, okay, is is, lack of a better word, if at worse, it's incorporated into the current one because it's the current that

Can't do that, though. It's it's it's its own violation. Right.

But we're not looking to charge for that case. That case, the 2021 case is only being offered as evidence of knowledge of the the the boat canopy, the the statute, the the ordinance that was in effect at the time, and as documentation and as evidence for for the weight to be considered by you of the fact that there was a canopy as far back as then. That's it. We're not we're not looking for finding a facts nor will there ever be a finding a facts sought on the 2021 case number.

It's Is that case still open?

It's it's it's dormant. It's it's only open in the sense that nobody closed it out in the city's computer, but it's never to be brought before the magistrate for any violations or anything like that. No. It's just

Your honor, if I may, the first I'm hearing of this being raised by the city was this morning when mister city attorney handed me a copy of the 20 the old violation that he's now trying to have you here today. I would disagree with his statements that this is this is not being used for a finding of fact or other ruling by your honor with respect to the instant case. He didn't notice the old one. He's trying to have you here both today. And quite frankly, I timely provided a defense packet to your honor and to the city attorney with the positions that I was planning to take today in accordance with the city's rules and your honor's rules.

And the morning of the hearing, five minutes before the hearing, he's effectively trying to same day notice a separate violation. It shouldn't be heard. It's not relevant, and it's not appropriate. There's a noticing process, as your honor Wells knows, under chapter one sixty two and the code to notice a pending notice of violation for hearing. He did not do that, and any evidence relating to that matter should not be heard or applied to a different matter.

Okay. Any further cross examination? I guess I have to put that in quotes because there was no cross examination.

No, sir. But I would like the opportunity to make my presentation.

Yes. Of course. Does the city have anything further in its case in chief? Okay. With that, did you need to have any of the documents that have been put on to the screen for yourself? Okay. Okay. Alright. Mister Davies, go ahead and proceed.

Thank you, mister Magistrate. Again, for the record, Noel Davies, on behalf of the property owner, my client is with with me here today, mister Palladino.

As And

I mentioned I noticed that his that it's for a family trust. Is that correct? And what what's his relationship

with the trust? So the Dino Family Realty Trust is the property owner of the subject property or the title holder, and mister Paladino is the representative of that family trust.

Legal representative? Or

The the the the the legal representative of the trust. Yes, sir. He's he's here with authority of the trust and resides in the subject property.

Alright. Go ahead and proceed.

As I mentioned, we timely submitted our memorandum of law with respect to this matter. We'd like the record to please include that memorandum of law with supporting documents and attachments.

No objections.

Let me make sure that I have everything. I received something from you the other day from your Karen Valentine, I believe was

Yes, sir.

Your your assistant. And they made a copy for me for today, a hard copy, and that starts out 04/24/2025.

Yes, sir.

On your letterhead, three pages

with a series of attachments referenced on page three of that April 24 letter.

Yes. And the attachments are all in this packet, I presume.

Yes, sir.

And okay. Now I did I did take a look at it. Normally, I don't look at the cases ahead of time. Frankly, most cases, we I just don't don't get them ahead of time or see them. But since you sent that, I think I did make sure that opposing counsel I think you copied opposing counsel, if I remember right.

We did, sir.

That the, yeah, that the city had a copy of it. And, I did ask for a copy of the notice of violation because, frankly, in your pack I don't think there was a notice of violation in your pack, and I was trying to figure out what it was for. So but and I got it. I got a copy of a notice of violation. So that's that's where we are as far as my knowledge of I use knowledge and quotes, I guess, of any of the facts and legal issues go other than what I've heard this morning so far. So go ahead and proceed. Thank you.

Thank you, sir. As as you're aware at this point, this matter relates to two boat canopies which were installed on the subject property in April 2021 and February 2022, respectively.

Both boat canopy

So April 2021 was Boat Canopy 1. February 2022 was Boat Canopy 2. Both boat canopies were installed prior to the city amending the pertinent ordinance, which occurred on 05/02/2022 to specifically require a permit for boat canopies. Prior to that date, 05/02/2022, and at the time the boat canopies were installed, there was no permit required. Accordingly, my client's boat canopies are grandfathered in, and this case should be dismissed.

We apprised the city of this on multiple occasions in advance of today's hearing, but they still wanted to proceed applying the May 2022 amended ordinance to work completed prior to May 2022 would be improper retroactive application of law. I've cited to the pertinent case law in my memorandum of law. I know you are familiar with, and we respectfully request that the special magistrate dismiss this case because my client is not in violation of the code and should not be compelled to obtain a permit when none was required at the time the subject work was performed. Your honor, I would like to point out and draw reference to the notice of violation that you mentioned. On the notice of violation, And again, this is for the instant case, not a separate case, but the case that is noticed for today's agenda, which is case twenty five-one hundred thirty three on the face of the notice of code violation.

Mister Davies, I'm sorry to interrupt. Can you put that up on the on the screen so we can see what you're looking at? Thank you.

It's the notice of violation. It's in your file.

I I wouldn't mind seeing it all. So I was gonna ask you to do that. And if mister Muldoon can assist in that, I think it's the same one he

has.

Yeah. I think it's a city exhibit. Mine has notes

on it.

Yeah. We'll we'll have mister Muldoon

put it. I think I think it'll just be helpful for us to look at what you're talking about while you're talking about it. Sorry to butt in on you. But There's some documents there. Aren't they aren't they in there, in the tray?

There might be some here. No. No. No. No. The the the current one. The current one, Jim.

This is the one that I was

Is that

the current

one? Okay.

I'm sorry.

This current one? Can you move it down just a little bit so I can see the top of it? Thank you.

Okay.

And and that's

a that's a different document.

We'll get you we'll get you the copy.

They I think they do the handwritten notice of violation, and they follow-up with a typed up notice that maybe has a case number on it. I'm not sure. Yes. That's the one. Is that the one? This is the Okay. Good. Thank you. If you could just move it down there. Okay. There it is. CC250133.

So you'll see, mister special magistrate, a reference in bold to code provision 54 hyphen one one six, parenthesis, as in Charlie, boat dock canopy. This is a reference to a provision of the city code which did not exist until 05/02/2022. It provides that a boat canopy can obtain the installation of a boat canopy can obtain a permit. The permit's required for one. There are specific criteria for obtaining a boat canopy permit, and the first time that that was in effect was 05/02/2022.

As set forth in the affidavit, which is in my defense packet and incorporated into the record And my argument or my my my opening remarks, the two boat canopies were installed prior to 05/02/2022 and prior to the code that is referenced on the notice of violation for today's case. Accordingly, any finding of violation by the special magistrate today would require improper retroactive application of a law that was passed after the subject construction was completed. And for that reason, the case should be dismissed. I'm happy to answer your questions.

I looked up both, canopy and cover, and it seems to me that they're essentially the same thing.

That they're not.

And I believe that I thought I heard the testimony, and if I heard it wrong, correct me. But I thought I heard the testimony of mister Smith that indicated that rather than everything being permitted prior to the change of the of the ordinance covers I'm gonna call them covers then. That's what they were then. We're not allowed.

Canopies. But the Canopy cover. I mean, you look

at it, they're both they they're describing the same thing.

The the purpose of the amendment to the ordinance, as I understand, and my my client actually participated in the legislative process

Uh-huh.

For amending that was because a canopy is is not a cover, and there was ambiguity with respect to that, which is why there was a new provision that specifically called out canopy. You can see the cross through of cover and replacement with canopy.

But if you look at cover, it describes the same thing.

It's

it's It describes, I think, what both of them are

were they were all over the island and still are well before that. And the purpose of the of the amendment was

make them legal.

I I'm I'm not taking that position. Yeah. But I think there was confusion about whether a boat canopy was a boat cover or not. And so the the the but but but no permit was required, and a boat canopy was not prohibited. It was only after the 2022 ordinance was passed that a canopy was that there was a permitting process for a canopy and that a canopy was specifically called out. It's clearly something different than a cover because if you look at the 2022 ordinance and the strike through and underline for that, you'll see the word cover crossed out and replaced with canopy.

Well, I get I get that. Okay? And I understand that. But in looking at the two, if if if one were to describe what a boat cover was and one were to describe what a boat canopy is, essentially, it's the same type of structure that appears to be in the photographs. So I'm having trouble with that being different. And I know as a,

you know,

as a government attorney, one is always trying to take care of issues. If and I and and by the way, I think that's probably a good explanation you gave. If there was confusion as to whether a cover was a canopy and or that type of a structure that they called a cover then was was different from you know, a boat cover maybe could just be something you put over the boat, over the motor. I used to have one. We all used to have one.

If you had a boat, you just put it over the over the motor and so on versus a canopy, which is a type of cover that keeps the sun off and sun and rain and so on, elements off. So I'm kinda having a problem with the part of the part of your discussion or your your contention that makes a difference here that says that this is legal. These were legal, and I thought I heard the city say that they were not permitted. So but, yeah, I'll call I'll call somebody back up in the city to see if I can get that clarified.

If I may, as a technical matter, if and it sounds like your honor is inclined to apply the law in effect prior to the 2022 ordinance. If that is the case, then the notice of violation should have referenced the code provision that predates the 2022 ordinance.

But you cannot you could not do a notice of violation under an ordinance that's been technically repealed. There's probably a repeal or provision in there.

But the the I

mean, you use the new you use you normally would use the new numbering system. And well, I I I think I I'm not getting that part of it. Okay? It's you have to put in the number of a of a code section kinda like a police officer with with the law. They they do this all the time.

The legislature's changing chapter three sixteen all the time, and they change this and that and the other thing. And when they do when they stop somebody for the violation, they have to cite them under the the code section that is in place at the time of the violation, or in this case, tie at the time of the notice of violation. So I'm I'm having a little problem with that aspect also. But

I mean, my my point is that that provision didn't exist when the construction occurred, and they're they're actually asking you to apply, it sounds like, and we were not notice of that some other prior law. Our position on that, as you've heard, is that the canopy is something different than a cover. But if they're trying to argue that separate notice of violation, which is what that notice of violation references, it references the prior law, then that should have been noticed for hearing today.

Okay. Anything further?

Nothing further. Thank you.

Okay. Let me, ask let me talk to well, let me first ask, are you going to have any rebuttal witnesses?

No, your honor. Just if if if your honor would like to hear just closing thoughts, I'll offer closing thoughts.

I don't wanna no. I I have I have a question. Sure. I'm not sure I heard correctly. Mister Smith, did I correctly hear you say that a a boat cover or whatever these things would be called were not permitted prior at all prior to the change in 2,000?

That's correct. They were prohibited.

But you heard the you heard the attorney say that they're all over the island. They were all over the island at the time. Is it were they I don't know if they were or weren't. But

Previous to the city becoming a city, the county did permit these covers at one particular time. So there is some vested covers out there that were done that were permitted by the county previous to us becoming Marco Island.

What about during the time that Marco Island became a city?

Mister Paladino's is the first one that I know that was cited.

Okay. Do you wanna cross examine that?

I'd I'd like to offer mister Palladino.

Okay.

This is mister Palladino, the owner of the subject property.

Thank you.

How you doing? Good

morning, sir.

Good morning.

Give me your name, your full name.

William Palladino.

Thank you.

This course of events that that took place starting from when I put the canopy up, I was cited because a neighbor objected to a canopy. And I was cited for that reason. I wasn't cited because the city saw it, and it was against their code or ordinance, if you would. It it kind of snowballed into a year's worth of meetings in this room with city council, with planning board. We used to fill the room with people because they were all over the island.

And to think that from when the town or the city became incorporated, which was, I don't know exactly the year, But for twenty years following that, that nobody put up a canopy is kinda hard to believe. Because there literally was, you know, could've been a 150 to 250 of those canopies that were already up when I put mine up. What brought me to putting mine up was that I had seen these. It was a great idea. I had asked somebody that had one.

And, you know, there was no permit needed. There was a canopy. And the only thing that was in the code was was a boat cover. The which then at that point created all these meetings because I went to the planning board and said, hey. I'd like to put know, I've got a violation on this.

And there's really no law or ordinance governing these canopies. So it started all the the conversation with Dan and the board and people coming in and fighting for the for these boat canopies because they weren't illegal. I participated with in several meetings to come up with language that was that people lay people, including myself, could understand what the difference was with a canopy and a cover. Hence, why the old language was crossed off as I e cover. There was somebody that was allowed on the island to be putting up a different type of canopy that kinda had a monopoly on on installing them, and he didn't need to have permits.

So there just a lot of confusion around this whole thing. In, I wanna say, November '21, I was asked to go to a meeting in City Hall upstairs where there was the council I think there a council chair. It was Mike McNeese. Dan Smith was invited, but I don't think he showed. Possibly Mary Hartman, I forget, myself, and a representative from the manufacturer that was putting these canopies up.

And the purpose of the meeting was to talk about what or how we would have a permit that we could put out with the ordinance that was gonna go into effect they had anticipated at some point in time. I feel like I'm being singled out because I was the one that brought this to the forefront as far as canopies and and covers because there was so much confusion. I think I'm being singled out because it was somebody else that pretty much, like I said, had a monopoly on the business on Marco Island. I can't you know, I was told that my first violation, I didn't need to worry about it. But when I called, because I had some work done at my house a few months back, so I called the code enforcement.

And I said, hey, I've got this violation that's open. And I didn't even know where to go looking. I just happened to look to see if my permit was closed out from the work that I was having done on the house. So I go in there, and I see this open violation from 2021, which was the original date, November '21. I asked the question, and the secretary, you know, said you have to get back to me.

She called me back. Two weeks later, they come out and they post my house with a new violation, changing it from boathouses to boat canopies, which I guess that's that's what I thought we were coming here today. It was for boat canopies. Right? So it's awfully coincidental that code enforcement sent somebody out after I called asking, how do I get this original one taken off if no one's ever gonna do anything about it. And I guess here we are. I keep Fuck four four years later. Sure.

Yeah. Go ahead.

Mister Valadino, was it your understanding that the purpose of

If you could get over, just share the mic a little bit. It picks up pretty good. But Yeah.

Was it your understanding, sir, that the purpose of the legislative process that you participated in to amend the ordinance, which was finally codified in 2022. Was it your understanding that the purpose of that was because boat canopy was something different than boat cover?

Yes.

And and that there was confusion by was there confusion by you and a number of other property owners on the island who had a boat cover and or boat canopy and or other type of covering as to what was allowed, what was not allowed, and what required a permit or not?

A 100%. I mean, it the the council and the planning board was confused. And they'd go back and forth with code enforcement trying to come up with, you you know, a clear description of what was going to be allowed or what was allowed and what wasn't allowed. Hence why we were meetings went on for over a year, about a year. And it was also under your understanding through your communications with the city that a a canopy

there was not a permitting process for a canopy, but that was the purpose of this, but that it was allowed when you constructed yours. Correct?

By reading the ordinance, yes. And there was never a permit required. Even if you read the ordinance, there was never a permit required. A permit the permit that even exists today is a little bit confusing because what nobody really took the time to put together a permit for canopies. It's like you pull the seawall permit. And on the seawall permit, you have to write in a description of what you're doing for work. And then there's a separate piece of paper that describes what is what you need to do to put up a canopy.

And and and when you participated and volunteered your time to try to create a or help the city or give them feedback with respect to creating a permitting process specifically for boat canopies. Was it was it your understanding that once that law was passed in May 2022, that a permitting process would go into effect for anyone who wanted to install a boat canopy after on or after 05/02/2022. Is that right? Yes. And so it was never your understanding that you were gonna, you know, participate in good faith with these discussions with the city, that they would pass a law, and that three years later, approximately where we are today, they would try to go backwards in time and apply that same ordinance to your property.

That you never you never were told that. You never thought that that was the case. Would you did

you? Absolutely not.

And and between I think we heard testimony about, you're the only home on the island that's got one of these boat canopies. Is that correct?

No. And I take a major exception to what Mr. Smith said that I'm the only one that's been cited. Unequivocally, and I it it's not important right now. I wouldn't divulge who this person is. I know people that have been cited, responded to the city, and then they let it go. And it doesn't show up. It just went away. Again, I think it's because I was the one that was leading the charge to try to get the canopies approved. You know, it was upsetting to somebody. And that's why today I'm standing here, you know, fighting for something that there was no law, there was no permit, there was no nothing. I think it's just a a kinda like a vendetta, if you would.

Nothing further.

Okay. Cross?

Just one question for mister Palladino, sir. What? Sir, hi. What's your understanding of what a boat cover is? Mentioned that there was a difference between a boat cover and a boat.

Well, what's a boat cover?

Yes, sir.

What is a boat cover? Boat cover is something you put on your boat and you snap snaps around your boat. The canopy is a structure that has got a top on it.

Is that also referred to as a mooring cover?

I don't know what a mooring cover is. I've never moored a boat. But there are canopies all over the island. Canopies were, you know, people have them in their driveways and I mean it was well known to everyone that canopies were all over Mako Island.

I I got no further questions. Thank you.

Well, wasn't that defined? Boat cover was defined in the previous ordinance, was

it not? That's correct. And it all the previous ordinance also in the definition of boat cover carves out a mooring cover, which is fixed to the vessel for the purpose of protecting the vessel shall not be considered a boat cover. What mister Paladino just described as his idea of a boat cover is a mooring cover, which isn't the the stat the the ordinance particularly carved out of the definition of boat cover.

And

the same carve out exists in the current definition of boat canopy.

Okay. Thank you. Anything else?

Nothing further.

Any other witnesses? Nothing further. Any other witnesses?

No, sir.

So it's back to me.

It is.

The the evidence that I heard today testimony I heard today, I indicates that from the city's side is that a boat, what do you call it, cover or canopy. Okay. Something like the structure that is being discussed here is never was permitted, but would now be permitted if there is a an application and a and a permit that's issued for it. As far as the facts or the analysis is concerned well, first of all, let me go back. One, I think we're talking about the second canopy only because I think there's a technically open case on the first violation.

So I'm not gonna decide anything having to do with the first cover, the first violation at, notice of violation. That could come up for a later hearing at some other time. But the one that we have in front of us, c c twenty five zero one three three, it says, for already constructed boat dock canopy, which tells me that we're talking about the second canopy. It doesn't say canopies or the two canopies or anything like that. I think that takes away therefore, we take away the argument that due process is not being provided under the first procedure of due process is not being provided under the first notice of violation, which is technically still open.

I don't think that I have power to decide a violation notice violation, that is still carried on the books and is open. Once that's it it could either be closed, and that's it. I'm and I'm not saying that there's anything to stop the city from continuing to go under the first notice of violation or or to do whatever it deems necessary and reasonable under the circumstances for the first violation. So I'm sticking it. I'm I'm just talking about the one that has been noticed for today, which is, in my opinion, the second violation, which refers to canopy, which is the second canopy.

So I know that doesn't necessarily solve issues, but the problem is, when you get to a judicial or quasi judicial matter, it does not necessarily solve issues. It just tries to make findings of facts and conclusions of law and orders consistent with that. I'm having I I I tend to think that that the well, in the first place, I think the canopy and the cover, I I kinda get I think I kinda get it. There was a problem calling it a cover because the structure that you have, one could say that it's not a cover. So I I I I get that that was it was a good idea to make the change.

So I think that that is that is okay. But but the difference between a canopy and a cover, as far as I can tell, as it applies to, this case, I don't think that that makes a difference. I think that, it is a canopy, and if you go under the old definition, cover, it would still be under that category. The, the city has testified, and and and I I tend to agree with that their condition their position that they were not permitted under the laws of Marco Island, under the ordinances of Marco Island, Whether or not they were being built or whether or not Marco Island was doing anything about it, I don't know. But as to this case, I think that this particular one and I'm not again, I'm not saying anything about the first notice of violation.

But as to this particular violation, it would have been necessary to get a permit, and the permit was apparently not applied for. I think it's agreed it was not applied. None was applied for. And I think that one had to be it must be applied for to permit that canopy to continue to be there. There are provisions, are there not, for after the fact permits?

Yes, your honor. And that was conveyed to mister Davies by

the hear mister Smith testify that he would not, that that they cannot absolutely cannot get a permit. I didn't say that they could get a permit. He just said that, as I understand it, that he hasn't done a review because nothing's been applied for. So based upon that, I would find that that the alleged violator is guilty on the issue of the second boat dock canopy under CC twenty five zero one three three. I would like to with that, I would like to have recommendations as to potential penalty.

Your honor, if I could. City requests $250 fine, dollars 50 costs. I'd be remiss if I didn't explain the next part of my recommendation. So one of the differences between the code that was in existence at the time of these violations and the current is the big difference is that now they require a permit, whereas before they did not. These canopy covers were constructed when they were not allowed. Usually the remedy

Let's talk about this one. The second

the one in February that was constructed in February was constructed without a permit and that was not allowed. I'm sorry, it was constructed when they were not allowed. Now as of May, the permit is allowed. They're allowed to be built with a permit. The normal remedy for constructing something without a permit or constructing something when it's not allowed is usually raising of the structure.

However, the city is not interested in in bringing such a nuclear option to this issue. The city is in in the in the citation, in the reference to applying for a permit and the and the code violation. My conversations with mister Davies offering just apply for a permit, get the permit, and pass inspections, close it out. It's and it's compliance. We're gonna adhere to that.

So, the city is requesting $250 fine, 50 cost, sixty days to obtain, apply and obtain the permit, or $100 per day fine after that. If there are issues that arise in obtaining of the permit, we just ask that mister Paladino communicate with the city, let us know, and we'll work with him in good faith continuously.

Mister Davies, do you have a recommendation as to the penalty penalty phase only?

My response is and I've I've dealt with this before. I I I think mister Natello said issue a permit within sixty days. So and where I'm going with that, your honor, is I don't want the clock for compliance or potential daily fines to be tied to the city's review and approval of the permit or issuance of a permit. I think it should be tied to a time frame by which my client needs to apply in good faith with a complete application for permit, and perhaps a later time frame for issuance thereof.

And that's why I suggested that if there's any issues that arise during the permitting process that looks like it's going to go beyond the sixty days, just let us know and all the consideration in the world as long as everything's in good faith will will be given. So but anyway, that's what the city is requesting.

I I think you have the power to grant an extension without coming back to me anyhow. But I don't kind of don't blame mister Davies for not for for being concerned about, how long it's gonna take.

I understand where he's coming from. And again,

it wouldn't be that that would be something intentional from the city, but just the way that these permitting processes work sometimes. We all know sometimes it takes a little longer than what we think. And so a sixty day time frame without some sort of you know, contemplation of of of sequential extensions or to the extent that your honor wants to simply incorporate mister Nutella's good faith consideration standard, we would appreciate that.

I'm going to, based upon this, I'm not imposing $250 at this time. $50, is cost of prosecution, and that is very minimal,

actually.

So that I will apply that. I will give the violators sixty days to apply for, I guess, would call it an after the fact permit. Is that the right terminology? Apply for a permit. And and the application must be a complete application.

I I would've I would've said thirty if nobody would've made a recommendation. Thirty to apply, but I do know that quite often if if there's an application, there's something missing. So sixty days to apply for a permit. And if that is has not occurred within that sixty day period, a fine in the amount of $100 per day for each day of noncompliance thereafter will be imposed. As and and I know that both of both attorneys are very experienced in code enforcement matters and but looking at one sixty two point o nine, the I think it's subsection c, I'm to consider the gravity of the violation, attempts, if any, to correct the violation, and, any previous, violations by the same violator of the same section of the code.

As to the first gravity of the and the max is $2.50 per day. So a 100 is kind of a little bit toward the minimal rather than the max. So I think that's in line. There were the testimony of the city was that there were no vie other violations, so that goes in favor of the fine not being as high. The whether or not there were attempts to correct the violations or just attempts to object, I'm not gonna penalize them for coming in and exercising their right to object. So I think a $100 per day is reasonable under the circumstances and that's my ruling. Okay?

Thank you, sir.

Thank you. Thank you all. Ready? Okay. Are we ready for the next case, or are we ready for a break?

Unless we need to have a break, I think everyone's patience is okay.

To the clerk to see if anybody need a break over there. Okay. Let's keep moving on.

Moving on to case TAsInTom, case 250553240SeaviewCourt.

I'm sorry. Which number which letter is that?

TAsInTom.

Oh, okay. That's David Boggs. Is David Boggs here?

I'm here, your honor.

Yes, sir.

David Boggs is back. Okay.

My favorite flight. Oh, you bet me.

Alright. Okay. Mister Miller.

Morning, mister Medstreet. Name is Gary Miller, code enforcement officer at the city of Marco Island Police Department. Address of the violation is 240 Seaview Court, which is within the municipal boundaries of the city of Markle Island. On 03/15/2025, Markle Island Police Officer Prigge observed a code enforcement violation of operating a business with no permit on the beach, which is a violation of Marco Island municipal code. Officer Negra issued a notice of violation for violating ordinance 54 dash 36.1, and attached is a are here is a picture of the NOV.

Thank you.

Posting of the NOV. The mailed notice of violation, affidavit of violation, Affidavit of posting. The affidavit of posting at mister Boggs' residence and the notice of hearing. Posted notice of hearing at the address of the violation. Posted a posted notice of violation at mister Bogg's address.

Certified mail document and a five year history revealed one prior violation. And that is that is all I have. I think officer Prigge is here to testify.

Okay.

Good morning, mister magistrate. I'm a police officer Prigee with Markle Island Police Department.

Uh-huh.

On 03/15/2025 at approximately zero zero thirty five hours, I was called to 240 Seaview Court, also known as the Sunset House North for a suspicious person. Okay? Upon arrival, I met with the reporting person, Philip Burkhart. Philip is the president of the association of that condominium. He was reporting that there were five individuals on the property that he believed did not did not live there and thought it was suspicious, so he called Marco Island police.

Upon my arrival, those five individuals were exiting the building with beach gear, beach chairs, and whatnot, heading back to their vehicle. I stopped and talked to one of the gentlemen who identified as Antonio Romano, asked him why he was present at the condominium at that hour, and he stated his wife had booked a shark fishing Objection. Charter online.

Objection. Your honor. It's hearsay.

A hearsay is permitted in these types of proceedings. He

stated his wife had booked a shark fishing charter online and paid $901 to John David Boggs. According to mister Romano, Boggs had Antonio and his family come to the condo to access the beach. Okay? When they had finished fishing, they had then proceeded back through the condominium to go back to their vehicle, at which point, that's when mister Burkhart had had noticed them and and gave us a call. There was a bit of a confrontation, just verbal, nothing physical.

I'm sorry. With whom?

Between mister Burkhart and and the group, mister Romano, his his group that he was

with. K.

But they're just verbal. And mister Romano was able to provide a receipt for that $901 that was paid to mister Box for the shark fishing on the beach. That's all I have.

Okay. Do you have the receipt?

Yes, sir.

So that I understand it, how did how did you get the receipt? Mister Romano had it on his cell phone.

It was paid online through the cell phone.

And he provided you this receipt directly?

Yes. Okay.

Is that all?

That's all.

Okay. Okay. Anything else?

Nothing further from the city.

Okay. Mister Box, it's your turn.

I'd like to cross the name of the officer, please.

Okay. You you have the right.

Officer, if you could go back up here. Thank you.

He has the right to cross examination.

Thank you, sir. Thank you.

When you arrive

Could you can you get a little closer to the microphone? Again, I don't like anybody standing too close to each other, especially if it's on cross examination, but, we do need to pick you up on the mics. So okay. Go ahead.

On the receipt that you, showed as evidence here, does it show show what it's for?

It does not.

K. It

does says Marco Island Sharks.

Okay. So you'd agree that it doesn't clarify what what the payment's for?

That receipt, no. But mister Romano said does.

Okay. So I'm sorry.

Your honor, he's allowed to, explain his answer.

Okay. That's no problem. Go ahead. So my

next thought he did. Go ahead.

No. He didn't get chance to. He was cut off.

My next question to you would

No. Be No. Let him go ahead. Finish your answer.

Right. The the receipt does not show what it was for. However, mister Romano, in stating that they had just paid for shark fishing, here's the receipt from from that that charter that they hired and provided this receipt here.

Okay. Okay. Next question, mister Boggs.

When you arrived at Sunset North, the call was not for fishing. Correct?

Correct.

And when you arrived, did you see me or anyone fishing? No. And that's I have no further questions.

Okay. Thank you. You may step down unless there's some more I say step down. I guess you don't step down in this room. You just step back. Thank you. Anything else from the city? Further. Okay. Mister Boggs, anything from you? Go ahead and

Can I look at the pictures?

Yeah. Go up.

See it.

Yeah. I'm sorry?

Can I pick up this picture here? I can't see it.

Oh, yes. You can. Sorry. There's a way of magnifying that. Could somebody help him do that, mister Miller?

When when

Yeah. Just

He he they they do it from the back, but They do it from the back.

Yeah. Let's

Everything good? Yeah. On that? Mhmm.

Can you see it okay now?

Yeah. I I I see it. I just wanted to read it.

Okay.

Your honor, the night that they came there fishing, the officer never asked what we're doing. And, actually, I'd I'd like to ask him a couple more questions, if I may.

Yes. Okay. You may.

I I I would Officer.

To the additional questions since he had this opportunity and and gave it up. I know. Go ahead.

I I wanna hear it all. Thank you. As long as everybody's respectful to each other, let's get it all out.

Yeah. He's a good guy. So if when you arrived at the did you speak to me at all that night?

I did. When you came out, I think you're a little upset. You said that we're harassing your your guests, that you had

allowed Can I close hold

on a sec?

Hold on. Yes.

I did speak to you when you came outside after we had confronted Mr. Romano and his family and questioned why they were on the property. You came out shortly thereafter

and you got a little bit

irate, said that we were harassing your guests. Things kinda settled down. That's when we went over and spoke more with mister Romano, and that's when he provided us the receipt.

Okay. Are you sure you you spoke to me?

Yes.

Okay. Do you have any objection to me showing you the video that you did not speak to me?

I no. Go ahead.

Okay.

I was there with, two other officers.

But did you speak to me?

Your honor, relevance.

It's relevant because he's making a statement that I can prove via video that he did not speak to me.

Okay. I might not have said anything to you specifically, but I was there and I I witnessed the whole the whole situation.

Okay. It was officer At that time, did anyone ask me if we was conducting a charter? No. Okay. If you are in you're stating here you're making an accusation of fact that I was conducting business on the beach, Yet, did you see me on the beach? No. Did you ask me if I was conducting business on the beach? No. Did you assume that I was conducting business on the beach?

I no. I did not assume. I went after I I went off of what mister Romano had told me and the receipt that he had showed me.

So but you is it true your testimony previously was that you don't know what that receipt is for? Because that receipt shows nothing but a payment made.

To Marco Sharkfishing.

Correct. Are

Your honor, I would like to state an objection. He's he's mischaracterizing the testimony previously offered. What the officer stated was that that receipt didn't specify what it was for. And the officer went on to further explain that he knew what the receipt was for based upon the testimony of and the information provided to him by the man who owned the receipt and who gave it to him.

Your honor, he just testified that he didn't know what the receipt was for. So that's completely separate than what he

I I didn't say that. I said the receipt does not show what it is for.

Correct. Okay. That's exactly right. So if you're gonna base an accusation on a receipt, wouldn't it be fair to say that you should have asked what that receipt was for?

I did. I asked the person who has

the receipt,

mister Romano.

And so if there was a discrepancy that you was why didn't you give me a ticket that night?

Because you left. You left.

You left. I left. What did you not say I'm free to go?

I did.

Okay. So why would you come back four days later and put a citation on the garage?

Because that was a code violation and it was turned over to the code enforcement.

So it wasn't your decision to charge me. It was city count or city officials? Correct. Okay. So that night so again, back to this statement. You don't really know what that payment's for. Correct?

Based on what I was told, it's for shark fishing on the beach.

But you don't know for sure. You didn't ask me what that payment was for.

Asked and answered several times.

Do you did you ask me what that payment was for?

No. Answered several times.

Okay. So would it be fair to assume or fair would you agree with a statement that you really don't know what the payment's

We don't assume. Okay. Okay? The payment was made for shark fishing according to mister Romano for $901 who said he met you at the condo. You took him out to the beach and walked up to Tiger Tail Beach to go shark fishing.

Okay. The was there was there anyone else with us that night in our confrontation out?

There was.

Who was that?

I didn't get his name. I think it was a young teenage male.

Okay. And do you remember me telling you that night when or telling the group of officers that I'm fishing with my family?

No. I don't I don't recall that.

You don't recall that? Okay. Nothing further for this witness, sir.

Okay. Thank you. Unless there's any, direct redirect, you can go ahead and step aside.

Nothing further. K.

Okay. Go ahead.

Your honor, there's no testimony whatsoever that proves that there was any charter business taking place on the beach. The certificate or the picture that they provided represents a payment. It doesn't say a date. It doesn't say what it's for. It doesn't describe anything.

As the officer testified, he did not see, us fishing nor did he assume that we was fishing on a charter. We was at a place that my family owns, have every right to be there, and everything else is hearsay. There's zero evidence whatsoever nor did it take place any kind of fishing charter on the beach on 03/15/2025. And it's just that simple. It's a matter of and I find it ironic that these police officers are good people.

They do a really good job. It's when it comes back to the city when people have a vendetta against someone that it gets escalated to a point. And so it's it's almost I'm just gonna say it because I have the mic time. It's to a place of harassment. And just I've already complied with the city previously.

I've changed our entire website to accommodate the rules. And just because somebody wants to, they can pull a rabbit out of their hat and say, well, let's give him a code violation for this. When there's zero evidence, there's no evidence whatsoever. If they thought that there was evidence, they should have brought someone here to testify, then we could have cross examined them and clarify the issue. Not only is the the the receipt doesn't say a date, we didn't do it, period.

I come through the front door. I don't come through the back door. And the information comes from internals within the city that brings us out. And at some point, people are just leave people alone. And we didn't do a charter business even though I'm licensed to do charter businesses in Collier County. This was not a charter, period. These were I fished with my friends and my family and my son. We get about 5,000,000 views a month on our social media channels, and I do this for my son. I don't need to be in here. Like you said, oh, it's David Boggs again.

Even in your in your in the city's thing that they sent me, they says you're guilty of a violation. So are these hearings fair, or are they not fair? Because it'd be at some point, it says here right here. It says right here. You are guilty or says you have committed a repeat violation a repeat violation is ineligible for enhanced fines. So what that means to me is no matter we wasted a hour and fifteen minutes previously. And I've I've been in here three times now, two for me and one for another issue. Not one time has I I seen the magistrate rule in favor of the citizens of Marco Island. Not one time. It's like fact doesn't matter. I'm accused. I'm guilty before I even step foot in this room. It's because of that.

Object at this point, but this is grandstanding, and it's completely irrelevant to the issues

It's not grandstanding. It's truth. I appreciate your time, your honor. I did not have a charter that night, period. When I got in trouble last time that was I completely disagree with. I changed the entire business to accommodate the red tape that mister Dan Smith put into place. I did not run a charter that night. If he thought I was running a charter, the respected officer should've asked me personally that night, not come accuse me four days later when there's not opportunity for us to have a discussion about it. Thank you, sir.

Well, wait a Before you step down, I have a question.

Yes, sir.

What was the $901 for?

For equipment rental.

Okay. Thank you.

And I am licensed in the city of Marco Island to rent equipment.

Okay. Thank you. Anything further?

Nothing further.

Alright. Based upon the testimony and other evidence presented today in this case, I find as a matter of fact that the conditions as alleged by the city did exist at the on the date and at the time indicated. I do think that I do think that there was a an operation a charter operation that was going on at that time. My, I conclude as a matter of law that constitutes a violation of the code of ordinances in the city of Marco Island. The finding is guilty.

This is a repeat violation. By the way, just because the city says that there's a violation, that doesn't mean that you are stripped of the ability to come in and show that there is not a violation. Just like any prosecutor, they have to make the charges. Legally, if they don't make the charges, then it they don't exist. So, but that's their opinion, but they still have to prove it if you challenge it, and you have challenged it today.

So I'd like to talk about penalty.

The city seeks, in recognition of the fact that mister Boggs is a repeat offender for this very issue, Having had one previous case brought before you for this specific operating business without a license, city seeking $500 fine and $50 cost.

The maximum fine for this would be $500 a onetime $500 fine, because it's not an ongoing, violation matter. And $50 is the cost of prosecution, which is a very low cost. Just the cost of having to, go out there and do whatever, it is that they needed to do. Sir, you do have the ability to address me as to the fine, that's recommended by the city.

Your honor or your magistrate, I didn't run a charter that night. I've proven that to you. They the burden of proof is on there. You've already ruled that. No. I We're past that. I I understand. I understand. But I wanna make sure because I'm gonna appeal this. Okay? I wanna make sure that that the issue here is that they do. They come say whatever they want to. They don't have to prove it. And it seems just so disappointing to me in in this whole system here is that the citizens of Marco Island are just subject to this. And so I'm sorry.

I take up your time. I'm sorry that I took up these people's time. But at some point, the the city officials need to be for the citizens, not just for it's like a big fundraiser. So I didn't run a charter that night. I have proved it. The the invoice I have all that, so I shouldn't have any fine, period. And I'm very adamant about it because it's not right. And when just because someone says something is true doesn't make it true, especially when they're not here to be able to ask them under oath. And so I should have zero fine for this because I did not do it, sir. Thank you.

Thank you. The fine will be one will be a $500 fine and $50 costs.

Thank you.

Thank you. Next case.

Next case is LetterVAsInVictor. Case, 250362For527BaldEagleDrive.

And we do have somebody here for that case. Sir? Yeah. You can come up a little bit closer to the mic if you want. Sir.

Yes. Not yet.

Oh, I thought he was talking

to Oh. Yeah. Okay. Go ahead, mister Miller.

Great. Okay. And good morning, mister Magistrate. My name is Gary Miller, code enforcement officer with city of Marco Island Police Department. Address of the violation is 527 Bald Eagle Drive, which is within the municipalities of the city of Marco Island.

On 02/23/2025, I observed a code enforcement violation of a boat and boat trailer parking, which is a violation of Marco Island code violation, which is a reflection of what I observed at that time. I used to notice a violation for violating a 30 dash one zero zero seven delta one and gave a compliance date of 03/02/2025 and attached as a copy of the NOV.

Okay. Thank you.

Picture of the NOV posting. Follow-up inspection for

conduct NOV means notice of violations. You probably know that, sir, but I just wanted to make sure. We we tend to sometimes talk in

That's my fault. Technical terms. Yes. I apologize. Yes. Follow-up investigation

Delta means d when when you referred to the code section.

Follow-up investigations were conducted on 03/03, 03/17, 04/17, and 04/21, which revealed that the location was still in violation. Additional photographs were taken at that time. Apologize for my photography skills. I was in a shadow. Attached or here's a picture of the affidavit of violation, affidavit of posting, notice of hearing for the address, notice of hearing for a boat owner, posted notice of hearing, and certified mail document for the address, certified address for the owner of the boat.

Five year history revealed no prior violations for this offense. That is all I have.

So your conclusion is that the boat and trailer were parked at a location where they're not allowed to have boat parking boat and trailer parking. Is that right?

That is correct. Thank you.

All right. Anything further?

Nothing else. Okay.

Sir, you want to step to the podium there?

If I could, before the gentleman has chance, first, do you have any questions for the code officer?

I do not. Not for him.

Thank you.

Okay. Then I just have one other witness very briefly, mister Smith.

Oh, okay. Yeah.

Thank you.

Daniel Smith, director of community affairs. I was just asked to be here, regarding what is allowed and what's not allowed in the land development code and their uses of restaurant. Outdoor storage is not allowed. That's basically all I'm here for.

And and does does the storing of a boat on a trailer or parking of a boat on trailer, is that considered outdoor storage?

It'd be considered outdoor storage if it's left overnight.

Okay. Thank you. Any any

Did you want did you wanna ask him a question?

Absolutely. Yes. Okay. Mister Smith just stated that the use as a restaurant, a boat and trailer storage is not allowed. Can I ask him where it says that in code?

It's in the section for the only thing allowed for outdoor storage is in c five. Your use is c four, and your use is a restaurant, not a storage yard.

Anything else? Okay. Go ahead, sir. Go ahead and Okay.

This is the exact section of code that I was cited on, the reason we are here today, 30Dash1007D. This read I am sorry. This reads that the parking of a boat and boat trailer in residentially zoned districts or any zoning district which does not permit such parking as a primary use is prohibited. And then it has some exceptions following. That's the actual code I was cited on right there.

Okay. I'm sorry. I maybe you gave your name and I didn't

Oh, I'm sorry. My name is Bruce Kretchmer.

Okay.

I'm the authorized representative for E and B Holdings that owns the property. Okay.

Thank you.

Is that good? Okay. So this section of code right here clearly says that if there's a use which allows boat parking within the zoning district, it's allowed in the entire zoning district. It doesn't prohibit it on a case by case basis.

These

are two uses excerpts from the c four zoning section of the land development code where marinas and boat dealers are both permitted within the sections, the zoning district c four. Now once again, if they're permitted anywhere within that zoning district, this says that they're allowed within the entire zoning district. It does not say anything about the use of the actual property being cited. Those words are not in here. Honestly, that's most of what I got.

Okay. Can we have mister Smith clarify that? Because I thought he said that it was not permitted in the in this particular zoning district. But you heard what he has shown here. Can you explain what what the city's position is on that and why?

The the city's position is you're absolutely correct. If the use is a marina or the use is boat sales, parking of boats is allowed if that's the use. The use for this particular piece of property, which I did look back to. It's been there for a long time as a restaurant. So if the applicant would like to come over for a zoning certificate for marina or boat sales, he has that option.

But has he done that yet to your knowledge?

No. Not not to my knowledge.

Okay. Sir, do you wanna respond to that? Yeah.

Sir, the the word use outside of primary use in this section of code that I was cited for, it doesn't say that I have to be a marina or a boat dealer. It says if it's allowed in the zoning district, it's allowed for me. And he just admitted that it's allowed in the zoning district. Nowhere under 30Dash1007, which what we're here today for. That's what I have a sworn affidavit forcing me to be here today for, does it say any of this other stuff. I mean, what I was cited on is that one section right there that says zoning district.

Your honor, if I could just

Is is the boat still there?

Yes. If if I could just read into the record the entire section that the gentleman is referring.

Well, yeah, I just let me just finish. I was just asking questions.

Sure.

Every now and then, this process allows people to better understand each other. Okay? And and so and and I I need that to understand where we're going on this too. So Mhmm. Ed, do you have anything else you wanna show?

As far as showing? No, hon. It literally just comes down. It's it says zoning district. This is regulated at the zoning district level, not on a site by site level. I mean, that's what this code is. There might be something else in the land development code they can claim I'm in violation of. But as for these these two lines of code, that's what it says.

Alright. Thank you. Okay. Anything else for the city?

Just just if I could, again, flesh out what the section in in which the gentleman was cited fully says. So section d boat trailer parking subsection one, the parking of a boat and boat trailer in residentially zoned districts or any zoning district which does not permit such park as a primary use is prohibited except as follows. When a boat or boat trailer is parked within the confines of a fully enclosed structure such that it cannot be seen from the ground level of any abutting property, public way, or waterway or b, on a temporary basis not to exceed twenty four hours for the purpose of loading, unloading, and cleaning. So those are the exceptions. That's the full section of the statute and

under Sir?

Oh, wait. Wait. Is boy's finished. Ahead.

So and and and as the gentleman testified to, the boat's been there longer than twenty four hours. And as the photographs fully fully evidence, it's not parked within a fully enclosed structure so that it cannot be seen from the ground level of any abutting property. It's in violation.

Okay. Now it's your turn.

Excuse me. Those two exceptions only apply to residentially zoned districts or zoning districts districts which does not permit such primary use. I'm saying that it is permitted as a primary use within the C 4 zoning district. So those exceptions don't come into play whatsoever.

I'm just I'm just referring to the statute that the gentleman, put up partially, on the record. I'm just clarifying the record.

Okay. And I I just wanted to make sure to clarify that that doesn't have anything to do with what I'm arguing about.

Okay. I understand. Mr. Smith, anything further? I saw you looking like you wanted to

All I can see is the primary use for this particular piece of property is a restaurant. It's very clear. And to have any kind of open storage would be for a marina. It would be for sales and it's and it's outdoor storage is only allowed in a

So you're not saying that he can't that he could never do it. It's just not for the current use that it is listed for.

That That's correct. Your point? And another point is he's zoned c four. Open storage is only allowed in a C 5 zoning district. So there's a couple of things, hoops, he would have to go through. So Okay. Sir?

Last last shot. Go ahead.

Oh, I I'm just is he testifying under oath that a marina is not allowed to have a boat parking out there? I mean, is that the city's stance?

Well, I didn't hear any

C 4 allows marinas. So if marinas aren't allowed to have boats, then, I mean, that kinda doesn't make sense to me.

Yeah. He's he's he's gonna try to clarify it for you.

It doesn't

it doesn't specify in the zoning in the area where it says marinas are allowed. It does not specify anything with storage. It just says marinas are allowed in C 4.

That's a true statement. Okay. He's not a marina, though. That's my point.

And nowhere in this code does it say I have to

be a marina.

The words, you know, the the actual, I'm sorry, the like, the site plan he liked to bring up before, everything else, it doesn't exist in these two lines of code. Not the code I was citing on. I'm not saying that they couldn't find a different section of the code saying that the storage is not in compliance with the land development code, but under the reason we're here today, it's a zoning district. It doesn't say specific property, anything anything to do with that level, that micro managing level. It's across the entire zoning district that this is regulated.