Code Enforcement - Regular Meeting

Well, see pictures. Am going to assume we are on the record. I think so. Everybody?

Yes. We're on the record.

Okay. Good morning, everybody. My name is Robert Pratt. I'm an attorney and I'm going to be serving as the special magistrate for the code enforcement hearings today. I'll call the meeting to order.

The the first thing that we need to do, since, the state statute requires that all testimony in code enforcement cases be under oath. I'm going to ask that, anybody who thinks they may say anything today in this hearing, please raise your right hand and be ready to be sworn. Okay. Do you and each of you, with regard to any of the hearings today, swear or affirm that you will tell the truth, the whole truth, and nothing but the truth? It looks to me like we have a 100%.

So let's go ahead and proceed. Joe Nutello is here today. He is the city attorney who will call the cases. Normally, he takes cases first where respondents are present for the hearing. And if that's the case, let's go ahead and start on the agenda today.

Good morning, mister magistrate Joe Natello. On behalf of city of Marco Island, we're gonna start with letter q in as in Quebec on your docket. It's 251270.

Good morning, mister magistrate. My name is Mike.

Is this Della Park Place Condominium?

Yes.

Okay. Thank you. I have the right one then. Thank you.

Morning, mister magistrate. Anybody

here, there must be somebody here, in opposition. Any anybody here for the respondent? Yes. There's a court reporter here

as well for this case.

Okay. And if you could, identify yourself on the record.

Yes, judge. I'm Peter Huie, and I'm here on behalf of Del Park.

Thank you.

Respondent. And there is also an attorney here for the complainant as well as the complainant.

Okay. Thank you. Let's hear from oh, go ahead and identify yourself on the record.

Yeah. Come to

mic, please.

Yeah. I'm Robert Samus, attorney here for Surfside, the neighbor of Della Park, we have a witness here too from Surfside.

Jim Riggs from Surfside.

Okay. Thank you. Okay. Now, mister Hofstadter.

Good morning, mister Magistrate. My name is Ron Hofstadter. I'm a code enforcement officer with the city of Marco Island Police Department. The case I'm presenting to you this morning is a noise violation complaint under code section 18 dash one zero four b one. I'm gonna try to present this case to you in a chronological order.

I believe you will hear from a complainant as well as we just heard. The address of the violation is 1020 South Collier Boulevard, which is within the municipal boundaries of the city of Marco Island. On 07/01/2025, at twenty two hundred thirty one hours, police officer Stegman was dispatched to 1014 South Collier Boulevard for a noise complaint. Officer Stegman stated that he could hear the pool filter from 1020 South Collier from street side 50 foot from the property line. The noise is plainly audible 50 foot from the property line, And he referred this case back to code enforcement.

I'm gonna show you the cat report from the police officer.

K. Thank you.

On 07/03/2025, which is two days later, supervisor Richter and I followed up on this case. I issued a notice of violation 18 for violating 18 dash one zero four b one, and I gave a compliance date of 07/03 at 10PM, which is the in the noise ordinance that that the pool filter needed to be off if it's so that the noise would be eliminated. This is a photo of the notice of violation that I issued.

Let me read the bottom here for a Do

want me to push it up?

A little bit, that would help. Okay. Thank you.

This is a photo of the notice of violation posting. There were no follow-up inspections, so I'm just gonna give you formalities. Affidavit of violation, affidavit of posting. Page one, page two. Notice of hearing.

Posted notice of hearing, and the US Post Office certified mail dock. There were no previous cases before you with this complaint or violation. I do have a defense package that was handed to me this morning, and I can submit it to for the record. But you will hear from a defense.

If I can if I can just clarify, I'm sorry to interrupt, mister Medistri, but, counsel for the defense did submit the defense packet to me prior to this morning. I have had a chance to review it with sufficient time.

Okay. Well, since he's here, let's have him submit the defense packet if he still wants to.

Okay. That's all I have for you, sir.

Was officer Stegman, is officer Stegman available?

Not to my knowledge. No.

Did did he was he the one who used the decibel meter?

He did. But the the time of the violation was after the 10:00. So it's you know, the decibels didn't matter. It's just that it's plainly audible from 50 feet from the property line.

Are you calling the complainant to testify as your witness?

Sure. Sure. Okay.

Judge, if I could, I'm not

sure about the procedure here. Will I have an opportunity to cross examine you?

Yeah. Yeah.

If you could let's do let's do one witness at a time if we could. Mister Hofstedt, if you could stay there so mister Huey can cross. Yeah.

And we'll we'll need both of you on the mic. I'm going to hope that you even though you huddle up on the mic, we will not have any incidents. Okay. Yes, sir. Go ahead.

Is officer Hofstadter?

Yes. Well, not officer. It's called officer Hofstadter.

How would you like me to refer you?

Just officer.

That's fine. Yeah. Mister Hofstadter?

In the mic.

Yeah. Sorry. Alright. Mister Hofstadter, did you personally have the chance to go out and visit the site?

I did. Yes.

Okay. And when did you go out and visit the site?

Yeah. I went out the morning of the third when I issued the notice of violation.

What time on the third? I believe

I believe it was sometime in the morning. I'm not exactly sure of my time. Probably about 10:10 thirty in the morning.

And you issued this citation and gave how many hours for the respondent to comply?

The notice of violation, it wasn't a citation. It was a notice of violation and they had till 10:00PM that evening. The the thought was to shut off the filter.

Okay. So roughly twelve hours? Yeah. And when you were out there, it was not during the period of 10PM to 7AM under b one of the code. Correct? Correct. Have you ever been out to the site in question between 10PM and 7AM for

a noise complaint? I personally have not.

To your knowledge, and I think it was your testimony that that it was officer Stegman that had gone out there?

Correct. Code office, we only work till 5PM. The police officers work 20 four seven.

Where is he today?

I do not know.

Aside

from officer Stegman, did any other officers go out there between the hours of 10PM and 7AM, whether it was July 1, July 3, or any other date with regard to this noise complaint?

Not to my knowledge.

And you stated that a decibel reading wasn't necessary, but was one taken?

On the third, when myself and supervisor Richter went, we did do a decibel reading just to check it and when we were right near the filter, I believe we were at 60. Decibels and from 50 feet away it was like fifty fifty one I believe.

And during that time was that compliant with the code?

During that time of day, yes.

And without officer officer Stegman here, we don't we can't be sure as to what he heard when he went out there. Would that be a fair statement?

Only going by the notes from his CAD report.

Right. But the notes under that standard, what is the standard under B1? Could you explain that to me?

I'll read it from the code. Between the hours of 10PM and 7AM, the sound is plainly audible, a minimum of 50 feet from the property line of the source of the sound or within a fully enclosed structure or residence on any receiving property.

And then the term plainly audible, does that have a definition?

Just unknown to me other than that you can hear it.

Well, how would you define plainly audible?

You can hear it from 50 feet away, that would be plainly audible.

So any noise whatsoever?

I suppose, but they were specifically talking about the pump of the pool.

Do you know if there are any other mechanicals on the site that cause noise?

I'm unaware.

Would officer officer Stegman know?

I can't speak for him.

Because he's not here. Correct?

Because I can't speak for him. No

further questions of this witness.

Thank you. Any redirect?

Sir, the okay. The did you speak directly with the officer who who went out there and provided this information, or did you just count on the the CAD report?

I I would just count it on the CAD report. Okay.

Thank you.

I'm gonna call you every day. Recross?

No. Okay.

Okay. Nothing

further at this time, but he's not dismissed.

Alright. So you're calling another witness? Yep. Who who's your witness?

My my witness?

Yeah. Yeah.

My oh, you weren't looking this way when you said okay.

Well, I I was looking at the at the code enforcement officer.

I'll call mister Jim Riggs,

please. Okay. Mister Riggs, you have been sworn. Is that correct?

That is correct, sir.

Alright.

Mister Riggs, where do you live? 1014 South Collier Boulevard. And where is your residence in relation to the property at issue for this hearing?

Right next door.

Okay. Do you have any knowledge as to the the the subject of this hearing?

Yes, sir.

Okay. And tell us about what you know about all this.

What I know about this is approximately three years ago, Irma came through and knocked out their pool equipment at their pool, which is obviously right there virtually in the property line. Approximately a year later, they started fixing their pool and putting a new pool pump, etcetera. Previously, the pool pump and all the mechanical mechanisms were under the ground. So I've been there for twenty four years now. You never heard a thing.

After the fact, they built the pool pump off the ground. I believe the top end of it is just about nine feet, if not a little bit over nine feet. They put metal racking there and put all the pool equipment on top of this metal racking, which creates a significant noise and vibration. Are you aware do you have

any specialized knowledge as far as the installation of these pumps, specifically regarding the codes and whether or not there's any code requirements or building requirements or or that that required to be installed this particular way?

Fortunately, I did a little bit of homework to to educate myself on this process, who to call, what to do to get us to this point. So my knowledge would be sophomore ish or elementary.

Well, tell us what you know.

Well, know what the code is in terms of decibel reading. We did go through since they built this up nine feet off of the ground, they blocked our view for about 25 different units. However, we don't have a right to a view, but we do but we do have a right to noise.

I'm specifically about your knowledge of the bill that you were talking about the the installation of this pump in a particular manner on some metal. I'm talking about your knowledge of that particular topic. That installation is that installation of the pump on this metal rate riser. Is that anything that's required by the code to your knowledge?

To my knowledge, I know to my knowledge, it's not. Okay. But I'm not at you. Do have to ask the gentleman blue.

Okay. Please continue. What was what help me. Well, you were you you left off at at describing the installation and how the difference in the noise.

Yeah. It's it's it's significant difference in noise over the previous twenty four years for what we're dealing with today.

And and does your unit face this pool area?

My front door faces along with about 20 other people face that direction.

And is this a condo? Yes, it is. About how many floors up are you?

We're two stories.

Is you hear this when the door is closed as well?

Yeah. So we'll we'll be sitting there in the winter and the screen door will be shut. You know, the storm door is shut, and you can you can hear it very much in your living room.

And can you hear it in your living room after 10:00 at night? Yes. Is there anything else that you can add to this that might you feel might be important or anything else you'd like

to add?

Yeah. Think there's a few things that are important. One, you know, we have been trying you know, the last thing we wanna do is occupy the city's time, your time, attorney fees, and all that. We wanna try to deal things, you know, the right way. We have got I've got at least 18 emails, text messages, and phone calls that have never been returned over this two year period. To to whom? To the president of Dela Park and the vice president and the board in general. I was on the board for ten years. And by the way, you probably already know this. But if you ever have an opportunity to be on the board of a condo, run the other way. Anyway, so I got off in March. My predecessor, Mark, is now the president of the board. He was on the board when I was the president as well. So he was very much in tune to this as well.

And just to be clear, where this pump is, the property at issue here this morning, is not the same condo that you live in? Correct. Okay. You're just adjacent to it?

We're just adjacent to it. That pump is as close to that wall as it is where I'm standing. Okay. But I do want to interject some additional information. The way I interpret code and what I've been informed is how it reads is playing the audible after 10PM. We were told and I think code enforcement was also told that they have turned the pump off. However, I've got readings in August that will show you both from a decibel meter and video to show you that you can plainly hear it. I also took readings on 09/25 at 10:33PM at 61 decibels. I took another reading on 09/26.

What is what is the date of this notice of violation?

07/03.

Come come to the mic. Sorry.

July 3.

Okay. So you're testifying as to September readings?

I'm testifying since the violation Notice

of violation.

Notice of violation was written. We have continued to monitor the noise via decibel meters and video to document the fact that what was being told did not happen.

Mr. Riggs, if I can just clarify a point because I want to kind of get away from the decibel Discussion and towards the bring you towards the plainly audible discussion.

Okay.

Because that's the element of the of the code after that time at night. So the times that you were just describing where you you mentioned decimal readings you took, Were these all after 10:00 at night?

All all after ten and all before seven.

Okay. And and were you able to plainly hear that particular noise from your unit after 10:00 at night?

With without question.

That's. Is there anything else you'd to add to that?

Other than I've got a whole documented of videos and audios if if the court will. If I can please the court with additional information if they wanted. If not, that's fine.

Do you I I do you have it in something that can be added as part

of the file? Sent it to, supervisor Keith. Okay.

Alright. Your your test your life testimony to it is

My life testimony, it's very it's very obvious that it's playing the audible. Okay.

That's that's that's what what's most important. Even as of four 05:44 this morning?

I'm having I'm having trouble seeing the relevance of readings that were taken subsequent to the date of the violation. I think that was the objection in the first place, and I thought you got away from it. But and is there a relevance to a reading that he may have taken on in sometime in September?

Sure. The relevance would be that it was continuing even after notice of the violation.

Defense, any comment on that?

I mean, my biggest portion of the objection is

he Yeah. Come to the mic. Sorry.

He can't be taking decibel readings. We don't know what equipment he's using. We don't know if it's been calibrated. You've got all sorts of issues there.

Well, yeah, that's a matter of cross examination.

You can observe.

Okay. I'm going to continue to allow that testimony in, but you can cross examine him on on the accuracy of it.

And in

response to mister Huey's objection, I I I redirected this the topic of the conversation the topic of the testimony of the witness from decibels to plainly audible from his past the relevant hours. And that's what he just finished testifying.

Alright. Well, to that extent I I think he's finished anyhow with what he was going to say, and you were not going to, submit anything further on in, decibels from him?

I unfortunately, I I no. No. Not on decibels.

Okay.

Not on decibels. Sir, is there anything else that you you can add further?

Yeah. The only thing I'd like to add is is I understand I understand plainly audible. And I would an uneducated audiologist like myself would suggest that if any decibel reading would be playing the audible. The question by counsel mentioned that, has mine been calibrated? Just for information purposes, my unit was set right next to Supervisor Keith's unit and the numbers were fairly identical. So even though it was

But again, the decimal is not

It's just information only for the magistrate.

Okay. Hold on. Don't go anywhere yet. She has some

Good morning.

And it was mister

I'm sorry. This is cross examination. Yeah. Get get real close to the mic if you would.

Sorry. And it's mister Riggs. Right? Mr. Riggs, you said that you don't need to be an audiologist to understand what plainly audible means. Could you, in your own words, explain to me what plainly audible means?

Plainly audible means if I can hear something, it would be plainly audible. I don't

know how to define it better. So basically, anything that you hear is plainly audible.

I would suggest that by the definition of plainly audible would be if you can hear something, at conversational level would be plainly audible.

Do you think barely audible is plainly audible?

I don't know how to answer that question nor to find that answer to that question.

Do you think normally audible is plainly audible?

Once again, in all respect, plainly audible is where I'm I don't know how to define plainly audible.

I think it's pretty

obvious.

In your own words, explain to me what sound a pool pump makes.

It'd be a hissing and a humming, a rattling. I think we have all heard pool pumps.

And explain to me the sound that an HVAC air handler would make. HVAC

would be more of a wind noise or a hissing noise.

And you said that you had a decibel reader and that you had calibrated it. Is that correct?

I did not say I calibrated it. What I said was the my my decibel meter sat right next to the city of Marco Island's official decibel reader, and the readings were the same.

But I believe it was officer Hofstadter was up here and said that those readings were in the low fifties. I think he said 51. Your testimony here was that it was 60. How do you reconcile that?

Relevance, your honor, again, we're not talking decibels. Decibels is not an element of the ordinance under which this is

I'm going to allow the testimony. I think it was opened up, and it's it's fair I think it's fair game for cross examination.

Ask the question again.

The testimony earlier from officer Hofstadter was that the decimal reading when they went back out there was somewhere in the range of 51, I think he said, but it was low fifties. You said it's 60. How How do you reconcile that?

Well, I only took readings after 10PM. He took readings at a different time. So if we went there right now, we'd have a different reading than we did at 04:44 this morning.

Do you know how decibels are calculated? What makes up a decibel?

I do not.

Do you think that when you take a decibel reading that wind has sound?

That's an excellent question. And I did if you'll notice the decibel readings I did take, I took on days where the wind was three to four miles an hour or less. I did not take decibel ratings when the wind was high for fairness of the process.

And how about the humidity? Did you check the humidity?

Objection. Relevance.

I'll let them continue. No.

I did not check humidity.

How about the refraction of the water?

I did not check the refraction of the water.

What about ambient noise levels?

I did not check ambient noise levels.

Did you take a reading when the pool pump was off?

In two years, I've never seen the pool or heard the pool pump is off.

So it's fair to say that you have no idea what decibel level that pool pump is running at?

Disagree.

No further questions on the cross runner, but I would like to reserve to call them back in my case in chief if that would be okay.

Yes. Did you hear that? Everybody hear that? Okay. Alright. Any redirect? Just kidding. Any redirect?

No.

Okay. Alright. You can step down.

The

city has one more witness. I'd like to call the code supervisor Keith Richter, please.

Keith Richter, code supervisor Marco Island.

Good morning. Good morning.

Mister Richter, does the city of Marco Wyland code provide a definition of plainly audible?

Yes. It does.

Could you please read into the record what that definition is?

Plainly audible means any sound that can be clearly heard and understood by a reasonable person using such person's ordinary auditory senses so long as a person's hearing is not enhanced by any device such as a hearing aid.

Thank you. I have no further questions, Mister Richter?

Any cross examination? I see you popping up. Go ahead. Unfortunately, we only have one mic for both of you.

So I know. It's we gotta do something about this. Mister Richter, only one question for Cross or maybe only one. Your definition of playing the audible, that's coming from the code. Correct? And that's

It is.

Just for the record, that's 18Dash I believe it was 103?

818Dash2103. Correct.

Okay. And the definition you read from code and and well, let me ask. Did you hear the testimony of the previous two witnesses? I did. Did either of those witnesses, define, plain and audible just as you did?

Not exactly.

Okay. No further questions.

Okay. Any cross or redirect? I'm sorry.

No redirect.

Alright. Thank you. Anything further in the way of witnesses?

Nothing from the city. No.

Okay. I see somebody else jumping up. You can only testify if the city's asking you to, testify. Testify.

I represent, mister Riggs' condominium unit.

Is the city you're gonna be the city's witness?

Sure. Yeah.

Whichever, can you come up?

Wait. What I'm sorry. Identify yourself for the record.

You're the earlier. It's Robert Samus. Yeah. Thank you.

I know. I recognize you from quite a while Yeah. Quite a while ago. Haven't seen you for a while, but it's kind of unusual to have you have the same witness back up. Normally okay. Let let's talk about this. Normally, the neighbors do not have the right to testify unless they can show, some type of specific problem that that that they have. Otherwise, if the city calls them as a witness, then that's okay. But I'm it's kind of unusual to have the same witness be called by the city and in their own right. So help me out on that.

I I've got no questions for this gentleman. I have no knowledge of why he's up here to testify. So I I don't know.

You said that will, for the record, object. I didn't I didn't mean to hint that you should object, but but I do note your objection. Yeah.

The city wishes to ask some questions, sure, but another attorney on on behalf of the city?

Well, I don't even know. No.

Well, the If a witness if a witness can otherwise testify, I don't see a problem in having his attorney ask the questions, but he just got done testifying. That was my problem and for on behalf of the city.

And I've got no further questions for mister Riggs.

Well, let's go ahead and hear it and and I'll make a determination after that.

Short questions. Mister Riggs, do you wear hearing aids? No. Do you wear any other kind of device? Do you use your cell phone with earplugs or anything like that? No. And you don't do that at night from ten in the morning till seven in the morning.

Correct? Not at night.

Ten at night to seven in the morning. No.

Do you consider yourself a reasonable person? Very reasonable. No further questions.

Any cross examination? No cross examination. You're shaking your head no. Is that correct? Thank you.

I should know better not to shake my head. Alright.

Okay. Have we heard all of the testimony? If so, I'm ready for any closing statements from

Your honorary has his case.

He Yeah. I'm sorry. Yes. You

There is resting their case in chief. Okay. I've got one motion, and then I'd like to put on my own Alright.

And it's case

in chief, if that's alright.

Oh, go ahead.

Are they resting?

The city yeah. Yeah. The city has rested its case in chief.

And your honor, eventually, I'm going to submit this in my case in chief, but I'm gonna hand this up to you now. May I approach?

Okay. Has he seen this?

I've seen this.

This is what you've seen? Okay. This is the defense Correct. In writing. Yes, sir.

And I'm I'm not gonna get into the, the factual evidence that's in there, but I do want it just for your ease of reference because at tab one, we've got the the notice of violation, and then I printed 18 Dash104ABB1 and even b 2. And then behind that, I do have the plainly audible definition.

And I'm I'm looking for Catalano versus state. Either one of you have that or state versus Catalano?

No, judge. But I have the underlying ruling that Catalano upheld, is Eastway of Lee County Inc. Versus Lee County. May I approach?

K. Mister Hughie, can I start?

And judge, while I didn't bring Catalano with me, that was it did up I I will represent to the court that it upheld this underlying opinion from the second DCA, easy way of Lee County. And I've highlighted certain portions of this because I wanna compare Lee County's ordinance from almost thirty years ago. But apparently, this isn't our first rodeo in the twentieth circuit. And I'll read some of it into the record, but it's generally

What are you reading from?

I'm reading from Easy Wave County. I'm reading the Lea County ordinance, what I've got highlighted on the second page. And their ordinance was along the lines of, for purposes of section three above, the term plainly audible shall mean any sound produced, including sound produced by a portable sound making device that can be clearly heard by a person using his or her normal hearing faculties at a distance of 50 feet or more from the source. Any law enforcement personnel or citizen who hears a sound that is plainly audible as defined herein shall be entitled to measure the sound according to the following standards. A, the primary means of detection shall be means of the complainant's ordinary auditory sentences so long as their hearing is not enhanced by any mechanical device such as a microphone or hearing aid.

Compare with Marcos 18 dash one zero four. I'm gonna start with b one. Between the hours of 10PM and 7AM, the sound is plainly audible, a minimum of 50 feet from the property line of the source of the sounder within a fully enclosed structure residence on any receiving property. Then we go to the definition of plainly audible. And you'll see the the parallels. Plainly audible means any sound that can be clearly heard and understood by a reasonable person using such person's ordinary auditory sense as long as a person's hearing is not enhanced by any device such as

a hearing aid.

The ordinance from Lee County almost thirty years ago, this ordinance very, very similar. The problem that the court had in or the second DCA had in easy way was that is a subjective standard. One person that goes out there can clearly hear and understand something in a different way than a different person that goes out there. The major thing that they also highlighted on was for Della Park to invest money into this pool equipment. It's a lot of money.

They need to understand what at what level is it okay and what level is it not okay. And the problem with this ordinance is we can't do that. So the first motion is a facial challenge to the to b one itself. And I threw in b two for a reason as well. So b two, you actually have objective standards. Under b two, which is at tab one, we have decibel readings here. We have a period of 9PM to 7AM in a residential zone. That decibel reading is 60. We're way below that. The problem you get into is what's acceptable, what's not.

Is 50 decibels acceptable? Is 40 decibels acceptable? Is 30 deaf does 30 decibel violate the statute depending on the person who goes out there? So the first argument is under easy way of Lee County, which and and again, I know we're six DCA at this point. But I I feel like it'd be an understatement to say that this isn't or that this is just persuasive. Yes. Five years ago, I'd say this is binding on this court. But under that, this is a subjective standard that gets applied differently depending on who's applying it. And b one cannot be enforced as it's written. The second argument here, the evidence that they had put on.

We don't know officer Segman's not here. He hasn't testified to where he was standing. He hasn't testified to whether he took the measurement from 50 feet from the property line, whether he took the measurement from 50 feet from the source of the equipment. We don't know what he heard. We don't know if he calibrated his decibel reader.

We don't know if if there were other things going on such as wind, such as, I don't know, the four HVAC units that are sitting above the respond or the complainant's unit. But he's not here to testify. We haven't been able to cross examine him. The state can't, on one hand, rely on basically his senses, his subjective senses, and not present him here today for cross examination so that your honor can hear exactly what he had heard. So the second argument is that the city has not even proved their violation yet.

And again, the violation was issued on July 3, that's when that notice of violation is, and they gave a compliance until basically that night. So that is we're moving for what would normally be called, I guess, involuntary dismissal if we were in a regular court. That's all I have for that. And then if obviously, if the court grants either of those, we don't go on. But if the court denies those, then I have a defendant's case in chief to put on. Thank you, your honor.

I'm not going to rule on that. I'd like to hear the rest of the case. And that if

Then I'll stay up here.

If somebody can get Catalano versus State, because my my memory and I'm going from memory, not from looking at it recently for some years, but seemed to me that Catalano versus State had the effect of overruling the plainly audible unconstitutionality of Easy Way versus Lee County. I could be mistaken on that, but I'm I don't think so.

So my understanding is that Catalano went differently and that Catalano versus state certified the question of a conflict between the second DCA and a I I forget what district it was out of. I think it might have been the fifth. But ultimately upheld easy way. They did certify the question. Well, a question of what was it? Florida Statute three sixteen, I believe, on

their Well, three sixteen is a whole chapter. So

Yeah.

Yeah. So it was it was the anti boombox ordinance or statute, state statute. They found that unconstitutional on other grounds. Now the state has since rewritten that. It took them years to rewrite it, but they've rewritten that section.

But it just seems to me that the plainly audible portion of of easy way is good law. Now that was plainly audible for a police officer. I'm not so sure about, for the public at large, but if if we could possibly get that. If if not, I might have to take time to research that myself. Your honor, look, if if we could.

I'm sorry. I'm

sorry. For for obvious reasons, I'm not gonna research cases that might be defeating to the states I'm sorry. States. Jeez. The city's prosecution. But if mister Hui would like a continuance of this issue until the next year so that he can pull up whatever research he needs to be able to support his position.

I think Plainly Audible supports your position.

Oh, it does?

If if Catalano versus state, plainly audible supports the city's position that it does not have to be done with a decibel meter. That was my recollection again going back from years. Well, let's and and I'm I I do have some concerns about officer Segman not being here because of more of a more recent case that was out there. But let's let's hear everything and then figure out what to do with it. It might be necessary to continue it to make sure we're right on it. Okay?

Okay. I will call as my first witness, Bill Himaris. And, Bill, correct me if I'm wrong, but if it's a actually, you know what? I'll have him state his name for the record and he can mister Himaris, state your name for the record, please.

Good morning.

Good morning.

Bill Himaras, h I m a r a

s. Okay.

We're gonna have to share the mic.

Mister Himaras, am I pronouncing that correctly? Himaras. Himaras. What do you do for work?

I am a portfolio property manager.

Is Della Park one of the properties in your portfolio?

Yes.

Are you familiar with the subject noise complaint?

Yes.

Were you involved on behalf of Della Park to address the situation?

Yes.

And did you try to mitigate the situation? Yes. Could you walk me through what you did?

After we discovered the notice of violation that was posted on the July 3, that following Monday, I contacted code enforcement supervisor Richter to get a, as you would say, a lay of the land of exactly what has been happening. But then I immediately took some proactive measures to try to mitigate the sound complaint or the noise complaint. And the first thing that I did was call our pool vendor and ordered a sound box, is what they sound reduction box, which we placed over the pump or the offending pump.

Did you replace the pump?

We subsequently replaced the alleged alleged offending pump from what it was a five horsepower variable pump. And we ended up ordering a 2.7 horsepower variable pump to try to mitigate the noise violation further.

Did you also speak with the Department of Health?

Yes.

Did you gain information as to flow rates and when and how or when the pool pump can be shut off? Yes. Go ahead and explain that to me.

So in an effort to try to further mitigate the noise violation, I reached out to a Samantha Mateo, who works for the health department, which regulates pools of this type. And I asked if we were allowed to turn off the pool pumps and asked what was the regulation in regards to doing so.

And what did you find out?

Miss Matteo from the health department emailed me back, and she stated that the pool pumps can be turned off three hour however, when you do decide to turn off the pool pumps overnight or for whatever time period, that once the pool closes, the pool pumps have to run three hours after it closes. And then prior to opening the pool, the pool pump has to operate for three hours prior to opening to ensure that the entire volume of the pool is recycled at least once through the pool filters.

Okay. So if it's three hours, so three hours before ten p. M. Would be seven p. M. Correct? That is correct. And that's for the most part before sunset? Yes. And then if the pool pumps were turned on 7AM, would that mean that the pool can't be used until 10AM? Yes. By limiting the pool hours as such, does that infringe on any of the activities conducted by the members of Delo Park?

Yes.

And what activities in the morning do they have?

In season, they have water aerobics in the morning first thing, which is at 8AM.

Would you say that's pretty important to the members who participate at at Telepart?

Yes.

Judge at tab two, I have the defense package.

I'm not a judge.

Magistrate but it's going be very difficult for me to consistently say that. Magistrate, tab two there is the defense packet that I had submitted and as part of that there are two invoices that are attached to it. Mr. Himeris, could you take a look at this invoice, invoice number TW5960?

Yes.

And can you tell me what it is?

This invoice is from Islander Pool and Patio, which is our pool vendor. And this is the invoice for the replacing the five horsepower pump with the 2.7 horsepower pump.

I'm gonna have you look at a second invoice. Invoice number TW5577.

This invoice is also from Islander Pool and this invoice is for the installation of the noise dampening box which would go over the pump. And then I'm going

to show you what's at tab three. Could you and it's a it's a picture. Can you tell me what this is?

That is an aerial view of Della Park Place and the adjacent properties, Surfside and the Kicksandvis Towers. Kicksandbas.

Visually, are you you're familiar with the the pool and the surrounding area, Surf Side, including Unit 123, which is the unit of the complainant in this action?

Yes, I am.

Do you know if there's any HVAC units on or about near Unit 123 at Surfside?

Yes. There's a HVAC rack which has the outdoor compressors.

And I'm turning to Tab five, and I've got a few pictures here. Could you come look at them for a second, mister Jimaris? What's the first picture?

The picture is a general overview of the area, which includes our pool equipment area. The parking area in front of Unit 123. Also, the HVAC rack, which is above Unit 123. I'm gonna show

you the second picture at tab five. Could you take a look at this and tell me what it is?

This is a picture of the front entrance of Unit 123 at Surfside and also next door to that unit to the right is the HV or mechanical room closet and then on the roof you can see the HVAC rack.

Alright. So just to clear up your testimony a little bit, to the right of the 123 front door there's another door. And what what did what's in that room?

That would be a mechanical type room, which possibly could contain, and this is how generally some of these units back in the day were set up to have the mechanicals either an HVAC handler, some plumbing to service that stack of units.

Is there another closet above that closet?

Yes. There is.

And I'm gonna show you the third picture here. Could you take a look at this and tell me what it is?

This is the roof rack, the HVAC rack which is on top of the roof.

And approximately how many HVAC units are up there?

Four.

And this may seem obvious, but does an HVAC handler make noise? It does. Do you know where the these HVAC units drain to?

The condensation drain line drains out in front of the units in front of Unit 123.

And you've been out to the pool at Della Park personally, correct? Number of times?

That is correct.

As recently as Sunday?

That is correct.

And could you hear the HVAC on?

Yes.

Could you hear the HVAC from Della Park's property? No. I have no further questions of this witness.

Cross examination? Yes. Can we put some of these if we're gonna use photos, can we put some of those on the camera there so that they can be seen by everybody? And I may wanna ask a question or two myself.

Judge, I don't know how to oh, I don't need to do anything. I just place it there and magically Well,

you did pretty good, I guess, on that one. Yeah. Now that's on the property next door. Is is that what we're talking about?

And judge, if I could, for clarification, I'll go in order. Here you can see the pool equipment of Delo Park on the right, Surfside on the left.

So that pool is right up against the property line?

Yes. And I will go back and you can see an aerial view. And so, yes.

Think on one of them, it's circled where the pool is located, one of your photographs.

Well, that one has a what I was going to use for 50 feet, but unfortunately, officer Stegman wasn't here so we didn't get into distance.

Okay.

But, yeah, this is the footprint of what well, let me let the witness testify that. Mister Hemmers, how long has this has Dullow Park been there? When was it constructed? I believe '95. 1995. And the pool, when was that put in? On or about 1998. Alright. And the so the and the pool equipment as well? That is correct. So the condo and the pool equipment have all been in the same at least footprint for the last almost thirty years?

That's correct.

I have no further questions.

If I could ask a question. I think you were probably here and you heard the testimony of the neighbor indicating that the pump had been replaced and taken out of the ground, so to speak, and put up higher. Do you disagree with that? Or is that so?

I do not. The thing that I do know in regards to what happened with Ian and then where they were, they were on the ground. And when they were refurbishing, not refurbishing, but replacing their pool equipment, Dulla Park applied for permits with the city of Markham Island, including a rack to raise their pool equipment in order to mitigate spending another $200,000 replacing pool equipment in case another storm surge flooded equipment. So that was part and parcel of

Okay. So that's so that's not thirty years ago. That that part of is since Ian.

Since Ian. So we're looking, you know, shortly after Ian. So 2022 and '23 was probably when that all happened.

Okay. Thank you for the clarification. There's a cross examination perhaps. Stay up there in the microphone if you would, please.

Sir, what was the name of the the person from the Department of Health you spoke with?

Samantha Mateo.

Is is she here today to

testify? She is not.

Okay.

Alright. The the invoices that mister Huey put up, you are you familiar with those invoices?

I am.

Did did you create those invoices?

No. My pool vendor did.

Do do you know the person who created them?

Yes.

Are they here today?

They are not.

Okay. I have no further questions.

Redirect. Just a quick redirect. With regard to the invoices, are those invoices kept in the I'm going have to remember the business records rule for a second. Are the invoices kept in the normal course of Dela Park's business?

Yes. We still need somebody to testify as to their authenticity for them to be admitted as business records to meet that exception. So I'm going to object to that.

Mean I'll overrule the objection for now. Prefer to hear everything and then determine what I think is relevant and not relevant today.

I mean, he's got personal knowledge on these invoices, the acts contained within them. So let's go back to the invoices, and he can testify to them.

If you could turn that the other way.

Mr. Hamras, could you briefly look at this invoice that I've got up on the screen? You can look at it from the projector over here if you'd like. And for the activities involved in the invoice, do you personally know whether those things were actually done on the property?

Yes.

And do you know if Della Park paid that invoice? That invoice was paid. Same question as to the next. Were those the activities listed in the invoice, were they actually done? Yes. And did Della Park pay that invoice? Yes. Alright, no further questions from this witness, Your Honor.

Any recross?

No, no recross.

Okay, thank you. You can step down.

I'd like to

Don't step down in here. Just step back, I guess.

Go ahead. I'd like to call code supervisor Keith Richter to the

podium. Okay.

Mr. Rector, we briefly spoke about clearly heard and understood the definition of the code of just plainly Ottawa. Do recall that? I do. Mister Rector, we had previously spoke about the definition of plainly audible as clearly heard and understood. Do you recall that in plaintiff's case in chief? I do. Did you receive any training on what that definition means? No. Is there an objective standard to go with that def definition, such as a decibel reading?

Not that I know of.

So are you left to your own devices, your own faculties?

From what I understand from the audience, yes.

Is clearly heard different than barely or normally heard?

I can't answer that. Why

not?

It would be a different this definition.

Okay. So there is a So we go by clue

the ordinance clearly audible. I don't go by anything else.

What you mean you go by clearly heard and understood. Correct? Correct. If something is barely heard, is that clearly heard? Are they the same thing?

In my opinion, yes.

Would your opinion be the same as another random code officer?

I would I would know. Probably not.

Could you compare clearly heard and understood to something like, for instance, a library or a quiet office or something else?

Objection, your honor. Relevance.

Honor, if we're I'm

sorry. Him finish.

Yeah, didn't finish my objection. We're wandering here down to the the interpretation of semantics to which is not relevant to the code, is not relevant to this violation, and is not relevant to mister Richter's testimony. All mister Richter testified, all he did in his testimony was read verbatim the code as it presently exists.

I'll overrule it. He's called him on his as his witness at this time. So go ahead.

So the question was, is there, like, an example as to something, anything that would be equivalent to clearly heard and understood? And then I use the example like office, quiet office, library. Is there anything in your mind that you could compare to give us a baseline as to what clearly heard and understood is?

I would I would say anything that I can can hear, whether it's low, medium, high.

So then barely heard would equal clearly heard. Correct? I

would say yes.

Do you think a fellow court officer would have the same definitions as you?

You did ask me question, and I I don't know. I can't answer for them.

Is it difficult to explain the standard of clearly heard and understood to your code enforcement officers? Can you repeat that? Is it difficult for you to explain clearly heard and understood to your code enforcement officers?

I I would have them review the ordinance.

And then it's up to them to decide?

Yes.

So is every sound at 50 feet from a property line heard after 10PM considered excessive noise under this ordinance?

I I would say yes. I don't know if it would be excessive noise, but I would say any noise after after 10PM would be clearly audible.

Do you draw the line anywhere? Like, for instance, HVAC equipment or sprinklers?

No. I would not.

No further questions. Pete.

May I?

You may. Go ahead.

Mr. Richter, in the ordinance, is there a particular distance that's defined in the in the section that deal we're dealing with today? Specifically, how far one must be from a noise source to hear it for it to be in violation after 10PM?

Yes, I believe the ordinance is 50 feet.

50 feet. And 50 feet is a number, correct?

Yes.

That is something that's measurable?

Yes.

And something that's quantifiable?

Yes.

It's not 60 feet. It's not 40 feet, correct?

Correct.

And this has been something that's been in the ordinance at least for the year 2025?

As far as I know, yes.

Okay. And and how long have you been a code supervisor or a code officer for Marco Island?

Excess of five years.

Okay. During the period of time you've been employed as a code officer or supervisor for Marco Island, has this standard been in the code for the noise ordinance?

Yes.

So this this ordinance provides notice to all of what is required in order to be in compliance with or in violation of the code.

That's correct.

I have no further questions. Thank you. No.

No redirect? Okay. Thank you. Do you have any other witnesses?

I do not.

Okay. So you rest?

I do, but I would like closing argument.

Oh, you'll you'll both get closing arguments. Yes.

If I if I could, since since we're since we're being flexible with the procedures here, I would like to, because it goes directly to rebuttal to Mr. Huey's case in chief, I'd like the opportunity to call Court Officer Ron Hofstadter again, please.

Yes. You have the right to do that. Okay. Think in the court of law, you do too.

Officer Ron Hofstadter.

Thank you, mister Hofstadter. Earlier in your when you presented all your documentation, you presented a what's called a CAD report, correct?

Yes, sir.

Okay. Can we can we put that back up on the on the screen? Okay. Thank you. Now, the, can you please point out for the magistrate and myself and my poor vision, specifically where in the CAD report it describes the officer's findings for what he observed or heard on the scene that evening?

Can I can I I'll get some point from here? Right here where it says valid noise complaint. Mhmm. And then the initial caller and then located at 10:14 upon arrival could hear the noise from the pool filter from the street side 50 feet from the property line.

Okay. Now, again in your how long have you been a code officer for City of Mark WiLAN?

Be two years in January.

So in your almost two years of work, have you come to be made aware of these CAD reports?

Yes.

What are these CAD reports?

They're documentation that we use when we respond to a call of any nature.

So when you say we, you mean who specifically?

The police department uses them. The code office uses them.

And after you the police officer or the code officer handles a call, these are maintained as records. Correct? Yes. And these are maintained during the normal course and scope of the business of the Marco Island Police Department?

Yes.

I have no further questions.

Cross examination? Yep.

The information that's contained in this CAD report, where did it come from?

It's computer aided dispatch. So police officers and code officers, we have a computer in our our vehicles, and he types in that information on the scene.

And he would be officer Stegman, correct?

Correct. Or I have CAD reports of my own as well. But this particular CAD report is from officer Stegman.

And we've got a date here of July 1. Okay. Do you know if the well, first of is the CAD report is it fair to say that it's talking about a pool filter?

I'm sorry. I didn't hear that.

The CAD report, is it fair to say that officer Stegman is referring to a pool filter as the noise violation?

I believe mister Hassett had testified to that and pointed out on the CAD report that it specifically says so from the pool filter system.

Go ahead and answer the question if you can.

Yes. I read right from that language.

And do you know if the pool filter that officer Stegman heard and saw, do you know if that pool filter still exists today?

Yes. I believe it does.

So you have no knowledge whether it was replaced or not?

I personally have no knowledge.

And I would argue also relevance, your honor, whether or not it's been replaced, that's a remedial measure. That's something that doesn't go to the fact that it was in violation at the time the officer heard it, and that's what is being cited today.

Vote for rule.

Answer if you can.

I have no knowledge that it was replaced, personally.

And you have no personal knowledge of any of the data that's actually in this CAD report, right? I mean you didn't observe it with your senses, You just read the report?

I don't understand the question. Are you asking me if I heard the noise?

Yes. So the information in this CAD report talks about hearing a noise, but that wasn't you that heard it. Correct?

No. I stated it was officer Stegman.

No further questions.

Anything further? Nothing further. Okay. Thank you. Any more witnesses?

No, your honor.

I mean, sorry. Okay.

So I believe that both sides have rested their case, and now would be a good time for us to it's 11:12 already. We ready to go ahead and and do our closing statements? Please. Alright. Thank you. Sidney?

Mr. Magistrate, we we have a clear violation at the time the officer went out. He heard the noise beyond 50 feet. He documented it in the record that is kept in a normal course and scope of business in the Marco Island Police Department. The standard in code enforcement hearings for evidence, as you know, when it guard specifically regards to hearsay concerns the.

It goes to the weight. You you assign the weight to to any evidence that you in your consideration. You you find it credible. You don't find it credible. You find it kinda credible. Whatever. That's that's up to you to decide. In regards to Mr. Hui's contention that the statute is vague, I I I point to the State v. Catalano case and just for the record that is Supreme Court case 104 Southern Third ten sixty nine specifically I'm citing to

What was the page number?

Ten sixty nine. I'm citing specifically to page ten seventy six, ten seventy six under head note six and seven. And I'll read directly from it. It says, although it is true that each police officer may have different auditory sensitivities, the quote plainly audible end quote beyond 25 feet standard provides fair warning of the prohibited conduct and provides an objective guideline hyphen distance to prevent arbitrary and discriminatory discriminatory enforcement. This is not a standard that calls for police officers to judge whether sound is excessive, raucous, disturbing, or offensive.

If the officer can hear the amplified sound more than 25 feet from its source, the individual has violated the statute. Now, clearly, this case deals with a traffic statute that concerns loud music coming from cars. However, the principle of this case is absolutely on point here. This is an officer enforcing a a code who is who's first of all, it's been published. Anybody who cares to wonder what it what what the distance standard would be for a noise complaint.

You can find it in the Mark Weiland codes. So, but besides that, there is just like in this case, there is a an quantifiable objective standard and that is, in our case, the from 50 feet. So, I would argue that based on this, this is not an overly vague ordinance. This is not an invalid ordinance. This is not an arbitrary ordinance.