Code Enforcement - Regular Meeting

We are.

Okay. I'll call the meeting to order. The meeting of the City Of Marco Island code enforcement magistrate hearings on Tuesday, 11/18/2025 is called to order. Good morning, all. My name is Robert, d Pritt.

I'm an attorney. I will serve as the special magistrate for the code enforcement hearings today. My task is to hear testimony and any other evidence to make findings of fact and conclusions of law based upon the evidence that we received today and to make a determination of guilty or not guilty, and finally, to issue an order based upon the testimony and evidence that has come in today. The city's attorney today is Joe Natello. He will announce the order of hearings and announce each case.

I will then take testimony and evidence from the city's representatives, then from the respondent or the respondents. All testimony must be taken under oath. I will administer the oath now. So anybody who may wish to say anything at any hearing today, please raise your right hand for the oath. You don't need to stand up.

If you raise your right hand, I would appreciate it. Do you and each of you swear or affirm that the testimony you give in any case today, and every case today will be the truth, the whole truth, and nothing but the truth? I do. You. Don't have a copy of the agenda today. Do we have an extra copy somewhere? No charge. Thank you. They sent me a copy yesterday. It's online, but I'm not online right now.

So thank you. Okay. Mister Nutella, would you, call the cases?

It's Joe Nutella on behalf of City of Marco Island starting with letter a as in Alpha on your docket, 2512701020 South Collier Boulevard.

This is Della Park Place Condominium, and it's a noise ordinance alleged violation. Is that correct? Correct. We've already heard testimony in this case the month before last, and anything that was put in the record at that time would be part of the record of this continued case. Any objections to that?

Objection. Objection.

And, sir, would you identify yourself for the record?

Sure. For the record, my name is Zach Lombardo on behalf of the respondent in addition with co counsel Peter Huey.

Okay. Thank you. Okay. Mister Nutello, where were we as far as the evidence when we last discussed? Oh, by the way, I received something from both parties. I assume that you have traded your information.

Yes, your honor. Okay. It on that point so I and looking at the transcript, the looked like the way this ended was you were requesting briefs specifically on the constitutional issues of the noise ordinance. That's what our brief addresses. And but looking at the transcript, it appears that there was some discussion about whether there would be additional testimony today. I'm not sure if that was resolved or there was a direction on that point.

What I would like to do is first get any additional testimony. I'd I'd like to be pretty informal to a point, and I wanted to give both sides a full opportunity to bring in any testimony and evidence that they may we may wish to have today. So let me

first ask you, mister Nutella, do you have anything further?

I do. I have, the officer who witnessed the violation, president, officer Steigman.

Okay. Let's go ahead and hear testimony from him. And, of course, you have the right, to cross examine on behalf of the defense. Officer, can we have you up here at the podium? Yes, sir. Thank you.

Morning. I

think your name was mentioned at the hearing two months ago, so here you are.

Yes, sir.

Go ahead and tell me what you need to tell me. Okay.

Well, if I if I if I can.

Oh, do you wanna do question and answer question and answer? Okay. Alright. That's fine with me. Objection, mister Lombardo? Okay. Okay.

Officer, good morning. Please state your name for the record.

Officer Steven Steigman.

And where are you currently employed?

Marker Wyland Police Department.

And how long have you been so employed?

Here, about thirteen months.

Are you coming through the mic? We do have a court reporter here, but, I'm not sure the microphone is.

I I could speak louder.

It's fine. Yeah.

Well, we need to make sure it's going through the mic. Yeah. Okay. Better? Yep. Yep. Sounds good. Thank you.

Thank you. Officer, prior to, working for the Marco Island Police Department, do you have any other prior law enforcement officers? I do.

Okay. And where is that? NYPD.

Okay. And so you are currently certified in the state of Florida to enforce the laws of Florida. Correct? Yes. Okay. And as a Mark Wyland police officer, are you authorized and empowered to enforce not only the laws of the state of Florida, but also the codes and ordinances of the state of Florida? Yes. Okay. Let me see the violation. Are you familiar with the the noise complaint that's subject for this hearing case 251270For1020SouthCollierBoulevard?

Yes.

Okay. Tell us how you're familiar with this case.

Well, I know we've assessed up the previous incident. I apologize. I don't have that date in front of me, but, I responded there. Okay. I I responded there previous to this date. I just don't have that date in front of me at the moment, and observed the, violation in question at the time. And then on for this complaint, I also responded on that date and met with the complainants that was familiar with the case. We measured out, the distance from where the pool filter is on

If I oh, for a second. Let me

Go ahead.

Before you run away with the testimony, let me just kinda direct you to when you first went out. To what time of day or night was this?

Was This is on this in this incident or the previous incident?

There were are both both incidences were incorporated in this in this case number?

Yes. I I responded after 10PM for both incidents.

And and and both ins there there are not separate citations for each incident. They're both both, for lack of a better word, offenses are under the same case number. Correct? So both those instances are subject for this hearing. And at what time of day or night was it that

you saw? After 10PM for both times.

Okay. And what is your knowledge of the noise ordinance that is relevant for this particular circumstance?

After 10PM, it just has to be plainly audible.

Plainly audible

is there

Just by just by hearing it. I mean, I so just just by ear, if you could hear it, it's in the violation. Violation.

Okay. Plainly audible from where? 50 feet. From where?

From the violation. So we measured it out from the fence line each time where the pool filter is, and we measured it. It goes up to about the second step to where their doors are for the condos. So there's a little I'd say there's three steps. About the second step past the driveway is 50 feet. And you stood beyond that point,

and you mentioned a pool filter. Why did you mention a pool filter?

That's where the that's where the noise is.

Okay. And and please describe the noise. It's,

I would say it's almost like a grinding noise like a loud pool filter noise. And

that noise was present from the same distance. Or beyond the same distance measurement on both occasions you responded correct the complaint. Your training and experience and knowledge of this particular ordinance, is that a violation of the City Of Marco Island Ordinance?

Yes, it is.

Have you responded out there after that second time? No. I have not. Okay. Alright. Are you still working that same shift?

Yes. I am.

Okay. To your knowledge, have any other officers been called out or responded to?

On my shift, I have not heard that address come over.

Alright. Is that your permanent zone? No. It's not. Okay. So did you issue a citation on any of those dates?

No. I did not.

And why is that?

There was nobody to issue a citation to.

Okay. So is there a standard procedure, for the enforcement of the City Of Marco Island codes for you that you witness, on such occasions when there is nobody present to issue a citation?

I will refer it to to CCSO. Not CCSO. Excuse me. I will refer to the code officers in regards to I will type it in my notes in the computer, and I will refer to them. Or I will have a after that, I will also have discussion with them if I see them in the office before I leave.

Okay. And what did you specifically do for these two occasions when you witnessed this noise?

I entered my CAD notes in the you mean Yes. That's that's my system in the computer where I'm dispatched by, Cali County Sheriffs.

And for the record, CAD stands for computer aided dispatch. Go ahead.

Okay. So once I enter those notes, I'll enter it in completion with any violations, decibel levels, anything like that. And I will, at the end, refer it to the code officers. And as I stated, if I see them in the morning, which I normally do, at least I see somebody, I'll at least make them aware of what I had.

Okay. But my specific question is, did you do that in this case?

Yes. I did. Okay.

And who did you speak to directly?

I spoke to Ray Lessinger, and I also spoke to Keith also. And and real? Ray Lessinger and code enforcement supervisor Keith.

It might be easier if it's not too late to move over here since I'm asking him the questions you want. I know you can hear me, but you can't hear him.

I'm gonna I'm gonna pull I'll I'll pull this closer. So

Yeah. If you don't mind. It's kinda hard for me to

hear that. Apologize.

So far, I'm hearing everything, but it's a little bit difficult. K.

Okay. And you so you spoke to Ray Lessinger. Who is Ray Lessinger?

Ray Lessinger is one of the code officers. He's standing to the right of us.

Is he a code officer or is he a police officer?

Well, he's both. He's reserve and code.

Okay.

And to your knowledge, that information was eventually conveyed to a code officer. Correct?

Correct.

And are you aware of any violations or notices of violations that were issued based upon the information that you personally witnessed? Yes. Okay. You mentioned earlier something about a decibel meter. Did you use a decibel meter?

Yes. I did.

Okay. And do you recall what the reading for the decibel meter was?

I have my notes in front of me if I could. 54.4. Okay.

64.4? 54.4. Oh, 54. Okay. I'm sorry.

Now in your knowledge of the code, is there a required distance for measurement in order to measure to assess a violation or not based off of a decibel reading?

It's supposed to be 50 feet.

Was that from plainly audible or or for plainly audible or is that for decibel reading?

It's well, it's for decibel reading. I mean, it's both, but, you know, like, I measured from 50 feet for both. Okay. Plainly audible and for the decibel reading.

Okay. Officer Steigman, any other information you feel might be relevant to this issue that we haven't discussed already? No. I got no further questions for officer Steigman.

Okay. Cross examination?

We're gonna have

to share.

That's fine. Uh-oh. I think I have to

have something back on but you cannot fight. Okay?

I came ill prepared to do that.

So Okay. Give us your name for the record again.

You're and I know you don't recall your honor, but magistrate, I'm Peter Huey on behalf of the respondent, Della Park.

I do remember.

Now I'm being guilty of not talking into the mic. Okay. And it is it officer Steigman? Yes, sir. Steigman. Okay. Officer Steigman, you stated that you were familiar with I guess, the noise complaint that's at issue here today. You mentioned, two incidences. Do you have any idea what the date of those incidences were?

I don't recall the the first incident, but the, second incident is for looks like it's July 1.

Okay. So I'm just I I just wanna tie down the the incident. So if the second in incidence was July 1, would it be fair to say that the first incidence was prior to that? Correct. Were there any other incidences that you personally observed after July 1? No. Okay. So when we or when you testified to incidences, we're talking about July 1 and then one incidence prior to that. Correct. And you started to talk about the code at issue here.

And I believe you said plainly audible, is that right?

Yes. After 10PM, it's plainly audible. In your own terms, what does plainly audible mean? Means that I can hear it just with my ears.

So would that be just basically any sound? Correct. So no matter the decibel level, if you can hear it with your ears, that would be considered plainly audible?

Yes.

Would you say that and based on that definition of, you know, any sound, would you say that plainly audible is a higher standard than barely audible?

Just I look at it as audible. So if I can hear it in that sense, it's a it if I can hear it in that sense, it's a violation. Okay? So whether it be plainly audible or whichever whatever terminology you wanna use, if it's audible and I can hear it, it's technically in the violation.

Is plainly audible the equivalent of clearly heard and understood? Yes. Is clearly heard equivalent to barely heard?

Mister magistrate, I'm objecting. This this is well beyond the scope of what the direct examination was. He's asking for the officer's interpretation of of of a a word or a phrase that's clearly in plain language defined in the city's code? And he's asking him multiple times in several different ways.

Well, I I think he's asked and it has been answered a couple of times. I know you you wanna keep pressing on that, but I think it's been asked and answered. I think it's relevant. But

And I mean, my my thought on it is it's either if I'm going beyond the scope now, then we'll just call him in our case in chief. So might as well just combine it all and get it out of the way. But I I understand the magistrate's position.

Well, you're asking for an interpretation. I guess, does the term plainly audible need any further interpretation?

Well, so

He said if he can hear it, it's plainly audible.

Right. But then when you get to the code, there is a definition for plainly audible.

Well, I think that's an argument you can make. But go ahead. I'll I'll let you do another one.

You know, I'm he answered the question.

Okay. Thank you.

With those definitions, do you think of one of your fellow officers would have the same definitions of as you?

You're on objection. It's speculation. They're outside the scope of direct examination.

Yeah. What would be the relevance of some other officers? I

wanna see if it's being consistently applied. And if it is, how?

That's not for officer Steigman to determine. Yeah.

I will sustain the objection.

Have you received any training on the term either plainly audible or the phrase clearly heard and understood?

What do you mean by training?

You

meet with anybody? Did anybody instruct you on how to apply those terms to sound?

Well, I was trained by the department by the Department of Standards and the Ordinance Code, if that's what you're asking.

But just narrow down to this specific, provision in the code with regard to

the noise ordinance. Well, I read the code.

Okay. So aside from you reading the code, there was no, like, formal training or even informal training at that?

I'm not understanding exactly what you're trying to ask me. To

understand that section of the code, you've testified that you read Did you do anything else, to understand the code or how to apply that code?

Well, I read the code, and we have our procedures in place. So if you want to include me being trained on how to apply it and by adding CAD notes, then, yeah, I was trained that way.

Okay. You had stated that basically any sound after 10PM would be considered excessive noise or at least in violation of the code. Correct? Yes. So would that include a sprinkler system or an HVAC system?

I haven't been called for those type of jobs.

But if you were and you heard it at a distance of 50 feet, would that be in violation of the code if it was after 10PM? Yes. When you investigated these incidences, the incidents of July 1 and whatever the date was prior to that, Tell me again where you were standing. I believe you said second step of I'm not sure if

you have a diagram there. Okay. Look at that. Okay. I mean, I could use that if that's accurate, but there's let's see.

What do you think? That's a little bit of a distance. What about that? If you look in the top screen, I believe that's where we're looking at. I was at the far end of the lot. There is a step unit, and I believe that is 50 feet. If you I mean, I

don't yeah. So k. Just mark an x, and then I'll put it up.

Yeah. It was it was sideways up there, so I apologize. So

no. You're good. K.

I would say we were

Your honor, I I I objection I object to the creation of evidence during testimony beyond what is being asked and answered.

If I could, this exhibit was present last time we were here. At this point, I'm just asking him to mark where

he was standing. It's the marking that I object to. It is creating evidence at the hearing.

It's demonstrative. Either he's going to point and

That's right. I'll let him point.

I'll understand.

I'll to

try to figure out where he was standing.

Or I will I will overrule the objection. Let's mark that, though, as respondents exhibit one with today's date. And if, counsel, would you, say what it is for the record?

It says the

eighteenth. Okay. Alright. So I'll have you mark. I'll shift to two.

Mark this as respondents exhibit one. You can kind of see the marking there. I put it in the golf. Sorry. And it's very difficult to see

where he's marked. Mean, I

can see

here, but it's not displaying up here.

There's Just generally, for the record, say what the exhibit is. It's a photograph from the air, it looks like, of of the of the condominium location.

And and I can elicit that from the the witness. Do you recognize this aerial? And if you do, what is it of?

That's South Collier Boulevard.

So that's

Oh, do you got the number? That's South Collier Boulevard. That's, I believe, 1020, and I apologize. The faulty address is 1020 South Collier, which I believe is the big building, and the other building is 1014 South Collier Boulevard.

And that is the respondent, Telepark Association?

I believe so. I just I know the addresses. I don't know who your client is. Let

me rephrase. So is that the respondent's address? Yes. And then when you measured, and you've marked it, it's very difficult to see on the screen. But how did you figure out where 50 feet was?

Tape measure.

And where did you measure from?

Fence line. Actually, excuse me, the street side. So it was further back. So it was further back. So from the street line or actually, no. We actually did I apologize. We did do the fence line.

Okay. So and when you say the fence line, is there a physical fence there?

I know there's a bush, so I don't recall if there's a fence, but we did measure from the

bush into the driveway. And the what was the width of the bushes?

I don't recall the width.

Alright. Did you measure from the from inside the respondent's property or on the outside of the actually, me let me strike that rephrase. I'm sorry. With the Bush, did you measure it from I wanna use inside and outside, but that's not all that clear. So did you measure it from the side that is closest to the complainant?

Yes. I was on the I was I didn't breach the property line, so I whatever the starting point was from where the bush, that's pretty much where we measure that's pretty much where we measured from.

Do you know who owns the bushes?

I do not.

Do you know where the property line is? No. And when you were at your location listening for the, I believe you said pool pump, did you hear anything else?

No.

No HVAC units or sprinklers on?

Objection. Asked and answered.

I'll let him answer.

No. No other noise.

And you said or you testified earlier that it was after ten that you heard this sound. Do you have any more can you be a little bit more precise with the time?

Well, I was dispatched there at 10:31 hours. So when I closed out the job, it was nearly after typing in my notes, taking all the measurements and everything, it was a couple minutes before midnight.

So good.

Alright. And

you only measured the sound from outside. Correct?

Yes.

Was a compliance date given for this violation?

I'm not aware of that. I only typed in my notes I didn't issue the violation.

Do you know if there's still currently a violation at the property?

I would assume since we're here. Yes.

But you'd stated prior that you have not personally been out to the property past July 1. Is that correct? That's correct. Alright. So you don't know if the pool pump that you observed at that time even exists on that property right now? I don't. How many, let's just take this month. How many notice of violations have you issued for, excessive noise after 10PM under that section b one of the code?

Objection, relevance, and beyond the scope of direct examination.

I'll let him answer if he knows.

I'm sorry. You asked for the month of November? Yes. Just this month. Zero.

How about this year? Again, it's same objection. Overrule.

It's okay. I I believe it's three to four.

I'm just finishing up. Do you mind if I have thirty seconds just to consult?

Certainly.

No further questions of this witness.

The document that you have, exhibit one, did he mark something on exhibit one? The only thing I see in the on the monitor is your writing on it.

May I approach?

Yes. Do you need to approach, mister?

I'd like to see it.

Yeah. Okay.

Just to reiterate my objection to the creation of evidence, but k.

I thought you had asked him to make oh, I see. There's a circle there. Is that it?

Yeah. It's very difficult to see. But, yes, there's

I a blue

can see it now. It's near a kinda near a white car. Alright. Thank you.

Anything else?

Oh, well, my question I think I know the answer, but my question is this blue thing is the pool. Is that correct? The blue rectangle?

No. Oh, no. No. Go ahead. Because it was it was 10:00. I'm not I'm not gonna see the pool. I just know it's

past defense.

I'm ask I'm just asking the council. Is that the

is this the pool?

I I believe that is.

Okay. And do you know where the the mechanicals are? Are they on this side of the pool?

Madam Chair, I'd be more comfortable if for those questions if I could just call a witness to elicit that testimony rather than

Okay.

I I didn't even

put my arm

up when it was time for

the I'll wait. We I think we kinda went over it the last time, but I wanted to make sure that I'm right. And and how it

is.

And my recollection was that the answer is yes, but I I don't wanna be testifying up here.

Right. Okay. I'll give you that back then. Yes. Certainly.

Should we not keep that specific actual document as the evidence rather than relying on a depiction of it on the screen?

Yeah. The document will be part of the evidence, and we'll make sure court reporter will wanna have a copy of it, and the, city, clerk will wanna have a copy also. Okay. Code enforcement clerk. Okay. Thank you. Did you have any, redirect?

No further questions for officer Steinberg. Okay.

Mister Nutella, do you have any other witnesses?

No further witnesses. Okay.

We just have the one witness.

Okay. Respondent?

Can you speak on a s. Can you miss mister Hewitt, can you repeat who you're calling into the microphone so the Yeah.

We'll we'll get that again when he gets on the microphone. Yes.

I'm gonna call Bill Himmaras, h I m a r a s. Thank you. Mr. Jimenez, please state your name for the record. Bill Jimenez. And just to clean up from the magistrate's inquiry, do you recognize what's been marked as these defendants well, I marked it as defendant, it's really respondents exhibit one with today's date on it up on the screen? Yes. And to answer the magistrate's question, is that or can you just describe where the pool is?

If then could object, and I'm sorry to interrupt mister Huey, but but I have I have no basis of knowledge or idea of mister Ramirez's relevance or or contribution to this testimony. If we can establish what that is and who he is and what he is to the violation.

Actually, I think that's that's a reasonable request.

So I didn't do it this time because the foundational elements were laid last time we were here, But I can go through it.

Did he testify last time? Yes. Okay. I I don't Let's go ahead and go over it real quickly again.

I apologize. I completely drew a blank on that. But if you don't mind repeating just who you are. Thank you.

I am Bill Jimaris. I am the property manager for Della Park Place Condominium Association.

Thank you. I assume you were connected with the association, but I wasn't sure if you were the President of the association or property manager.

And I missed that last part. What do you do for the association, mister Jimaris? I am the property manager. And that and that's of Della Park, the respondent. Correct? Yes. And are you familiar with the subject, noise complaint? Yes. Were you involved on behalf of Della Park to address that situation? Yes. Were you involved in attempting to mitigate that situation?

Yes.

Your honor, I'm I'm gonna continue to object to mister Morris as this is apparently, it was already testified to at the first hearing. We are not reiterating what was already testified to. If there is new evidence, then I ask the direct examination be limited to whatever that new evidence is.

I only started the foundational questions because he asked for it.

I am going to overrule it. I don't have access to anything written from the first portion of the hearing. And I would rather be maybe safe than sorry and let's and let and hear it again if if that's what's necessary. Try not to be too repetitious, but

I'm gonna keep it to to basically, I think, one category, and that's just the mitigation. So Mrs. Jimaris, I believe you said you were involved in attempting to mitigate the situation, is that correct? That's correct. Could you walk me through your mitigation efforts And let's start with the date that those efforts started. The dates that the mitigation started was on the Monday, the sixth, I think it was. And that's of July? Yes. July. Right after the holiday weekend.

And what did you do? Obviously, read the notice of violation and then took a survey of what was included in the violation as far as decibel readings on my own, and then distance from the source of the violation. Did you ultimately replace the pool pump in question? Yes. Tell me a little bit about that.

Did you replace it with something quieter? What all did you do to try to dampen the sound? The first mitigation effort was a soundproof box over the subject violation, source of the violation. And then secondly, we ended up replacing the pump with a smaller, smaller pump that was also a variable pump. Which reduced the noise.

And were you the person who hired the companies to do this? Yes, I was. Approximately how much did all of these mitigation efforts cost? $6,700 No further questions for this witness.

Any cross examination?

Just very briefly. Mister Jim Morris, thank you, by the way. But to your knowledge, is the pool pump still making this noise? The noise that was the subject of the violation?

No.

I have no further questions for mister Morris. Mister Magistrate, if I could just call one rebuttal witness, please.

Okay. And

just for clarification on the rebuttal witness, this is gonna be limited to the scope of the direct?

To just what

mister Hamar testifies you. Correct.

Okay.

Yes.

K. Anything further?

Yeah. I do. I'd like to call a rebuttal witness.

Okay.

Okay. Thank you. City calls mister Jim Riggs. Good morning, mister Riggs. You've been sworn in prior to testifying right now?

Correct. Mister

Riggs, you are the complainant on this case. Correct?

There's two complaints, but I was on one and another gentleman was on the other.

Okay. So you're familiar with the noises. As matter of fact, you testified at the first hearing about the noise that you heard. Correct?

That's correct.

Okay. And so my question to you is limited to what mister Hemaris just testified to. Did you sleep in your condo last night? Yes. Did you hear the pool pump noise last night? Yes. Thank you. I got no further questions.

Cross examination? No. Okay. Anything further from either side?

Short of closing arguments Okay. For me.

Closing, I think you go first.

Mister Lombardo, are you ready for okay. He was

getting ready to give his closing argument, I think. But I think you need to go you're you're supposed to go first.

Turn. Thank you, mister Magistrate. So what I would like to address, first of all, is the purpose of today's hearing. The purpose of today's hearing is for you as the magistrate in Marco Island to assess the facts and evidence presented before you and determine whether or not there is a violation of the code that exists. What today is not about today is not about nor do you have the authority to assess the the validity of the of the ordinance, the quality of the ordinance.

That is for the legislative body of the city of Marco Island. In fact, the City Of Marco Island code specifically talks and I refer to section 14 dash 22 in the powers and duties of the special magistrate, they list them as follows. Adopt rules and regulations for the conduct of hearings, subpoena violators and witnesses to appear at its hearings, subpoena evidence to its hearings, take testimony under oath, hold hearings on notice of violations or contested citations where applicable, issue orders, modify or reduce any existing orders, and such other powers as provided by general law. So today, that code and ordinance, you are to assess the facts and circumstances presented to you as evidence and whether or not they are in violation of City Of Market Island Code eighteen-one 104, Particularly, Section eighteen-104B lists prime aphasia evidence of the violation of the city's noise ordinance. Under this ordinance, it is prima facie evidence that a violation exists if between the hours of 10PM and 7AM, the sound is plainly audible at a minimum of 50 feet from the property line of the source of the sound or within a fully enclosed structure of residence that's not pertinent to the circumstances before you today.

So after 10PM before 7AM if you can hear it plainly audible from a minimum distance of 50 feet from the property line, that's the violation. Now, section 18 dash one zero three provides the definition

I'm sorry. 18?

I'm sorry?

18 dash

Three dash one zero three.

One zero three. Thank you.

Provides the definitions for, the noise ordinance, section of the, of the city's code. Within that section is the definition of, plainly audible. And I will read that definition into the record since it is so brief. Plainly audible means, quote, any sound that can be clearly heard and understood by a reasonable person using such person's ordinary auditory senses so long as the person's hearing is not enhanced by any device such as a hearing aid. That's it.

There's nothing complicated about it. Very plain language, very direct. So in essence, if you can hear it, if you are a reasonable person and you can hear it from beyond 50 feet from the property line of the property where the noise source is, that is a violation. There is an alternative category of prima facie evidence and that alternative category is sound pressure levels by receiving land use. Officer Steigman testified he also used a decibel meter.

But officer Steigman's testimony primarily concerns that he measured on two occasions. I'm sorry. He measured between the 10PM and 7AM beyond the 50 feet distance from the property line that he plainly heard the noise of the pool pump. Mister Riggs testified at the first hearing how he heard that noise, and that and it was repeated, and it was incessant, and it was a nuisance. He testified today in contradiction to the property manager's testimony.

He testified today that as recently as last night, he continues to hear the noise. If you recall, mister Riggs testified last time that where his property was with respect to where the pool is. And I believe it was clarified at the time and and if not, we can always have him do it again. But it was clarified that mister Riggs' residence is beyond the 50 feet benchmark in the code, that the noise was plainly audible to mister Riggs. So, mister Magistrate, today, given the limited purpose of this hearing, the it's clear beyond a reasonable doubt that there was a violation of the city's code as it exists today and as it existed on July in July 2025 as it existed before 07/01/2025, there was a violation of city code and that violation was the noise from the pool pump was an excessive nuisance that was plainly audible beyond 50 feet from the property line of Della Place, 1020 Collier Boulevard.

Now mister Lombardo is gonna bring up arguments about constitutionality, strict scrutiny, free speech. I would just assert to you that under no definition of speech is the sound of a pool pump contemplated. There is no constitutional issue here for your consideration at least given the purposes and the authority given to you under the city's code. And I'll get into any other points in my responsive close once mister Lombardo has a chance to, to, make his points. But in essence, your honor, we have a violation of the code, plain and simple, and so we are looking for a finding of a violation.

Okay. Thank you. Mister Leonardo?

Good morning, your honor. I would like to start with the facts and circumstances, not legal argument. The testimony provided today did not prove a violation. The officer testified here at the podium that he did not know where the property line was. It is not possible to measure 50 feet from a location that you don't know the location of.

And so there was no testimony and evidence today or the prior hearing that establishes that the person who filed the report upon which this case is based understood where he was standing when he heard the noise. So I think first and foremost, we don't actually have a violation here. But secondly, what was also testified is that the only time the officer was out there was in July. What the property owner's representative testified to was that mitigation efforts were made, a pump was replaced, a box or a shroud was placed over the pump to reduce the sound. And while the complainant argues that that is not or put into evidence that that's not enough, these efforts were not checked by the officer at any point because the officer testified he didn't go back out there since July 1, I believe, was the testimony.

And so today, what we don't know is is this something that is happening and nor do we know that if this case was actually proven in the first principles because we don't have any idea where the officer was standing. And and to dovetail into my the the the argument about enforceability of this, at the last hearing, was some brief discussion about the easy way case, which we agree, the plainly audible standard was upheld by Catalano. And and and but before I can get into that, I need to I need to address what the city is arguing about your powers and duties. Section 14 dash 22 was read into the record by opposing counsel, and I think there's two very important points here. One, it ends by saying such other powers as provided by general law.

Well, the constitution is general law. And then secondly, if we look at the actual noise ordinance and we look at section 18 dash one zero two, this is the intent and purpose of the noise ordinance, When we look at subsection e, it states nothing contained in this article is intended to infringe upon the constitutionality protected rights guaranteed by the Florida constitution and the first amendment of the United States constitution. So it's very clear that you must engage with the constitutional arguments because it's in the actual noise ordinance itself, and then your powers are not circumscribed past that point because you're allowed to employ such other powers as provided by general law. So when we dive into the constitutional piece, there were two major concerns here, and and they address this issue that opposing counsel brings up, which is, well, wait a second. This isn't speech.

And it turns out, as very clearly articulated in the Catalano case, that is not the end of the inquiry. The question is, if a city ordinance is overbroad so in Catalano, there were two issues. Is it vague? Is it overbroad? They said it's not vague, so we're not here arguing that this is vague because it's plainly audible. That's not the argument because the supreme court said that's not an acceptable argument. But that does not mean that the statute in Catalana was upheld. It was not upheld. And it was not upheld because it was an overbroad restriction of free speech that was not narrowly tailored and did leave open alternative channels.

There's always the exceptions.

And so the exceptions are what I would like to talk about here because the reality of this ordinance as written is that it is an extremely broad sweeping ordinance. What you heard the officer testify to is all sorts of things. Sprinkler systems and air handlers are potential violations of this ordinance because it's anything that you can hear anywhere without an unaided, ear. The these exceptions to this code are very interesting because they contain at least two content based exceptions. And so the first one is amplified sound on property controlled by a governmental agency during governmental sponsored activities.

So that is an exception to the noise ordinance. So essentially, if the city decides that it's going to host a political event at the park, it may do so, and it may do so at 11PM. And it may use amplified sound, and it may amplify that speech. If a commercial property owner wanted to do something similar, they would not be allowed to do so because of the noise ordinance. So that right there is a content based restriction, but it's not the only content based restriction.

If we look at the next exception down, sound produced by activities in fields, grounds, facilities of any sporting venue to which the public or community has access. So what we're saying is if it's a sporting event that's open to the public, it can violate the noise ordinance as an exception, not be a violation. But if it was a private event, that was a private sporting event where the public did not have access, it would violate the noise ordinance. So again, we are restricting commercial speech. We're not restricting political governmental speech.

That's a content based restriction. And when that happens, then there's a there's more questions that gets asked. And in the brief, which I've submitted, which you requested, I included an analysis of other jurisdictions in Collier County. City Of Naples, Collier County itself, City Of Everglades City to see how they handle this issue and it's very interesting and very telling because in those jurisdictions they don't include content based exceptions and then they also do things to narrowly tailor this. So for example, in Collier County, the sound of the unamplified human voice is just an exception to the noise ordinance.

It makes sure that there's an open alternative channel. That exception is not present in the MARCO code. And so what's happening here is if you're essentially standing in your driveway having a conversation, whether it be on the phone or just to someone in your yard, you are at 10:01PM, you are most likely violating this noise ordinance. And when that happens, the case law as articulated by Catalano as confirmed by the balance of the cases cited in our brief is that even those that are not engaging in speech, because I'm not standing here today arguing that the pool pump is speech, What I'm saying is if it's a facially invalid ordinance, it's facially invalid and it cannot be enforced against anyone in that context. Now conveniently Catalano then goes into a very clear argument about severability and says if the balance of the ordinance can stand on its own and make essentially sense, it may.

And conveniently here, I'm only attacking b one. B one is the plainly audible one that has exceptions that are content based, it prohibits speech, and it and it picks between speech. B two is the decibel section. The vast majority of jurisdictions, and in fact all the jurisdictions in Collier County when it comes to pool pumps, use decibels. And the reason I would suggest that this is being done is because it that leaves room for things like talking so that the decibels help narrowly tailor the application of the ordinance to avoid constitutional overbreadth.

And so that's the first big chunk of our brief is going through an overbreadth analysis. And and and and to counsel's point, under section 14.2, you specifically have power to do this. And under section 18 dash one two, the intent of the Neuer Ordinance is not to violate the Constitution. So either (one) should not apply because of the intent section itself, or (one) should not apply because it's facially invalid. But let me take this two steps further.

One additional step here, the constitution also regulates what are called fundamental rights, and one of those is the freedom of movement. And anytime an ordinance steps into regulating this space, it again can be facially invalid, which then subjects it to challenge even when that's not the issue in the case. And so here, turning your car on at five in the morning, shutting your car door, and driving down the street are potentially all violations of this noise ordinance because unless it's an electric vehicle, it is making noise that can be heard from 50 feet away. And so that means this ordinance isn't unintentionally regulating that. Now I'll note that the ordinance has an exception for car honking, which I believe is a state level preemption issue.

It's also in the Naples code. It's also in the Collier code, so I assume that's not part of the constitutional analysis. But we're stepping into First Amendment over breath. We're stepping into fundamental rights, and we have an ordinance that otherwise can function on its own. The officer testified that he took a decibel reading. Again, we dispute that he knew where he was standing at the time. In fact, he stated he didn't know where the property line was, but the decibel reading didn't come close to the limits in the decibel reading. So we can narrowly tailor this down using the existing code just not b one. And I think it's entirely proper for your honor to consider this. I would request that the brief be considered in full.

I know you only just now received it. There wasn't really a procedure of how to submit this brief ahead of time, so I don't know how else I could have gotten the brief to you. But I would respectfully request that the brief be reviewed because it's fairly extensive in its analysis of those two issues. And to summarize them and to close, In the constitutional analysis of an ordinance, First Amendment over breath may be challenged even when the action in question is not speech that is directly addressed in the Catalano case. And what triggers that analysis is if it's a content based restriction.

I've gone through the exceptions that are included in the brief. There are content based restrictions in the Marco Island code as to B1. And because B1 does not allow for things like unamplified human speaking and operating a car, which the decimal section B two most likely does, B one is unconstitutionally, facially invalid. B two isn't most likely, and in that case, because of the severability analysis provided by the Supreme Court, it may stand. But under that standard, the testimony here today is that there is no violation because the decimal readings did not line up.

And then ending with the facts, the officer did not know where the property line was. We cannot possibly apply the objective standard. The standard is very clear. It's 50 feet from the property line. There was a lot of strange testimony about the location of the equipment or the location of the pool, but that's not what the the the ordinance says. It says property line. The decimal section doesn't have that. It just says from the receiving property. So when he's standing on the receiving property, he's receiving good and usable evidence for this violation. But with that, we would close and say simply that the case was actually not proven.

If it was proven, it was not proven that it hasn't already been remedied. And so I would like to, if you find a violation, I'd like to reserve to address what the compliance looks like here because, again, compliance measures have already taken place, and we don't have a way to evaluate that in this particular situation. And then and then finally, I think even if you do not find this to be constitutionally problematic or in violation of the constitution, what I would suggest is the officer testified that he had basically only issued three or four of these violations all year is what I heard. I would submit that there are thousands of these violations every single night because we're talking about plainly audible from the property line. And so I think the city needs to consider this fact that we have essentially an ordinance that we're not enforcing except when when when we randomly receive a complaint to do so because this is a broad sweeping ordinance if we're not using decimals.

Thank you.

Mister Mejazian, I'm entitled to a a rebuttal. Yeah. One one second, please.

The last thing you said was a selective enforcement

Yes.

Detention.

And and and and I And selective

enforcement is rarely a a defense.

And and that's why I didn't it's not in the brief. I didn't know the officer was gonna testify that he'd only done four of these. And and and I don't think this case based on what I know right now, I'm not sitting here saying that that's the reason this case should should be not found in violation. But I think it's worth considering because it seems strange to me that basically the standard is total silence. It must be totally silent at 10:01PM on Marco Island everywhere. And so anytime you hear anything and I think this can be easily demonstrated by walking your dog at 10:01 and listening. And you will hear air condensers and sprinklers and all kinds of things. And every single time you hear these, most of them are noise ordinance violations.

But at most, that would be something like selective non enforcement or unen

Which which I think I think these

selective enforcement.

Think these are the same side of the coin, though, because it's basically saying that we we don't enforce this, and then we use it. But I but I don't wanna I don't want to I don't want this closing to go down on that point because I don't I don't I I would need more information across the department about how many officers are enforcing this, how many noise complaints are there really, how many of them are valid, that's that's a much more intensive approach. But I don't think it has to go there because it is overbroad, it is content based, there is not narrowly tailored, there are not alternative channels, and it's restricting things like driving vehicles around after 10PM. And and and none of that needs to be there if we're using decibels or if we're more narrowly tailoring the language here. Like for example, in Naples, there's an exception for refuse collection for the city.

But it's not a blanket exception like it is in Marco. In Marco, that's a blanket exception. If the city sends a garbage truck down your street, it doesn't matter how loud it is. It's not a violation of the noise ordinance. In Naples, there's additional factors that the city manager has to go through before they send a dump dump truck sorry, a garbage truck down your street at six in the morning. And and that's in that's in the brief. But my point is

cannot a city cannot enforce its codes against the city itself. The city can't in other words, the city can't sue the city. Sure. So that's kind of like an exception that's built in regardless of whether it's it's in a code or not.

But what's not built in is the government sanctioning certain events and not others. So for example, the exception and let me get to the exact site on this exception. This is an 1810612 amplified sound on property controlled by a government agency during governmental sponsored activities. So for example, if the government is in if the city is inviting and allowing certain speakers at an event that are amplified, that can happen and there is no noise ordinance in place. But again, if a if a private property wants to do that exact same thing, they cannot do that under this ordinance.

And so there is the dump truck thing is more on the narrowly tailored piece. This is content based. Picking and choosing political speech over commercial speech in the ordinance. And I did not find exemptions like this in Call Your Naples or Everglades.

So it's your position that a let's just say for sake of argument only. Okay? Sure. A noisy motor is speech.

No. It's not my position. My position is that when an ordinance is overbroad to the extent that addition to picking up the noisy motor, it's picking up speech, Those that are being enforced against for the noisy motor have standing to challenge the facially unconstitutional issue, and that is not an argument I'm making. That's what the Supreme Court said in state versus Colorado.

Well, your client obviously has standing to challenge it because he's being prosecuted under it.

So Right. And and so That

that's not an issue. Standing's not an issue.

But I do wanna make it clear that we we are not saying pool pumps are speech. We are saying that the ordinance sweeps too broadly in an attempt to regulate pool pumps. And I would point out that, and this is is excerpted in the in the in the brief as well, the city of Naples answer to this is they use decibels specifically for pool pumps so that they do not get into this issue. Because it's not the case that we're saying that pool pumps with impunity should be able to make as much noise as they want. What we are looking for is objective standards that allow things to exist.

Okay. Thank you. Rebuttal?

Just briefly, Your Honor. So first of all, in talking about Catalano, the Catalano case is, if I can distinguish two things. Number one, the Catalano case found that the statute, which is worded very similarly to the Marco Island's first prima facie qualification, B1, which they were cited under, was not vague. It was constitutional. Critical point that Mr.

Lombardo leaves out in his arguments about how he is now allowed to discuss the overbreadth argument and the facially unconstitutional thing is Catalano specifically addressed a subject that was recognized by the Supreme Court and courts all the way all the way down in the American justice system to be a First Amendment issue, and that is the playing of music is a widely recognized First Amendment right. The Catalano case dealt with the playing of music too loud. What was overbroad were the exceptions in light of a constitutionally protected right. There is no constitutionally protected right here. It is a pool pump noise.

So whether or not the Marco Island ordinance is better than the Naples ordinance or the Collier ordinance or worse is immaterial. Our ordinance is what it is. For anything to be unconstitutional on its face, there there can be no constitutional applications of the ordinance. It's just inherently unconstitutional. As as officer Steigman testified, he's written three.

During his tenure. With the Mark Island Police Department. Your magistrate sits on the Mark Island code enforcement before the Mark Island or presides over the Mark Island code enforcement hearings monthly and has done so for at least over a year. These cases don't come up very often, so it's not even being applied unconstitutionally. It's hardly being applied at all.

And to address Michel Lombardo's contention about that we're not enforcing it, as you know, the enforcement of one's own laws is a discretionary function, which is we're immune from any considerations or issues from we get to choose which of our laws we enforce and what we don't. The fact of the matter is that the ordinance as it exists is not leading to excessive noise violations. It's not leading to an infringement upon people's rights. It's not leading to a reduction in the quality of life in the city of Markle Island. As a matter of fact, it's just quite the contrary.

It's enhancing the quality of life of the city, citizens of Marco Island and guests. And that is the expressed intent behind the noise ordinance under the ordinance that mister Lombardo cited to the. Where is it? Intent and purpose section 18 dash one zero two. So in short.

Catalano is distinguished from the present situation, in that the present situation does not concern a fundamental right under the constitution. It concerns noise, a nuisance noise that the city has a right to legislate and the city has a right to enforce.

Okay. Both parties have submitted something to me this morning. There's a respondent's brief here, and it has some cases I take. Excited in it. I have not had a chance to take a look at it. And I believe that the city also brought me some cases. As well as This is from Citi, right? The

one Correct. There's some cases

There are three tabs. Is every has have both sides seen everything that everybody else has submitted?

Yes.

Okay. I think I need to read the briefs. And, normally, I like to to rule on something when I've heard it. Most of the cases are amenable to that. But with, everything that's been submitted, I think that I need to look at this and, do a written finding of fact and conclusions of the law.

I do have one question. Believe the testimony was that the decibel reading was 54.4. Would that alone be a sufficient rationale for a a violation? I don't know what the what the number is on decibels. Now I'm I'm at my excuse me. I'm asking the city first. Understood.

So And

then you can argue.

So your honor, as I mean, there's there's the the the ordinance talks about two different types

Yes.

Of prima facie evidence of

One is plainly visible. What's the other?

Plainly audible. And the other is a decibel reading. And there's a chart which talks about residential zone, public space, or institutional zone within certain times if the decibel reading level is above 68 between 7AM and 9PM or above 60 between 9PM and 7AM?

60. 60. Okay.

Right. So it's either or. It doesn't have to be both.

I understand that. I just want to know if it's a decibel reading issue or if it's a plainly audible And I think I'm hearing that it's a plainly audible issue.

Solely, yes.

Thank you. I'll take the submittals and

Just for recommend, mister Badger, I did not submit a full legal brief on it. I I will stand on the arguments and the evidence presented before you. I'll provide copies of the transcripts of both hearings for your for your consideration from the city's perspective.

That would be helpful. I I don't like to do that. I mean, normally, you it's something where it's fairly obvious as to whether or not there's violation. Here, there have been several arguments that have been made. We talked at the first hearing about the Catalano case.

I believe that the position was that the easy way case kind of controlled. But Catalano and I raised the issue that Catalano put the plainly audible back in after it had been taken out by the courts in Easy Way. Again, being a former city attorney and maybe I wrote the Naples ordinance. Well, I wrote it and rewrote it so many times. I don't know.

But what had happened, just kind of historically, is that when Easy Way came out, everybody said, Okay, we're not going to do plainly audible or the equivalent of that. And then later on, the Catalano case came out to the boom box anti boom box statute. And lo and behold, the Supreme Court of Florida said, essentially, that a a trained police officer could testify, as to plainly, audible what plainly audible includes. But they found against the government, found the statute unconstitutional because of the exceptions. One of the exceptions, I recall, was candidates, with bullhorns on on on the back of trucks.

Kinda remind me of the Blues Brothers, I think. But the that was very common. It might still be in some places, but but I I recall that there were several exceptions that were cited by the Supreme Court. And I think that's one of the cases. Maybe both of you have given me that case just to remind me what the details were of Catalano.

But there was another one. I just asked a question. Rock Against Racism, Newport, either one of you cite that. That kind of older, but it's on the issue of something being allegedly too noisy and whether or not that was a violation. And the US Supreme Court, I think that went to the US Supreme Court, and it was found that that noise of concerts had a First Amendment element to them.

That that case was was part of the basis of the Catalano decision, and they're specifically dealing with the matter the issue about playing of music as a First Amendment protection. Right.

Right. Yeah. Okay. Well, if if that's okay, I will get something. If when could I you say you're gonna send me a a transcript then?

I can order it from you. How long do you think?

It's ten days.

Okay. Yeah. I don't like to make I can't make somebody do a transcript. But if you're willing to do have the transcript done and sent to me, that certainly would be helpful.

Let me talk to my client about incurring the extra expense for that. I think ten days should be fine. Mr. Lombardo, you go ahead. Yeah.

My only question has to do with if at the end of the day the termination is there is a violation, normally we would have had a conversation about compliance time frames

We and we could talk about that.

So we would we but but would we come back here to to do that in front of the magistrate or when would we do that? Because we we can't the magistrate needs to be involved.

We'll schedule it at both of our conveniences. Well,

I'm glad you raised that point. I know we're talking about transcripts. Well, the all of the exhibits from the first hearing, you have those. Is that correct? No. You don't have any of them? Or well, we need to make sure that that I can, excuse me, that I can see the exhibits from the first hearing also. However, we need to, do that.

We we will we will make sure that they are distributed

Okay.

To the

court reporter as well as to opposing councils.

Okay. Yeah. Again, I apologize for causing the work to be done, but I think that there the issues raised need, you know, some careful review. Well, we're getting into the holiday season, so the next ten days translates into about the next eight days or six days. Is the city in a real big hurry to get the answer? Or is

I I I I don't believe we're in a hurry, but I have not had the opportunity to consult with my client about it If

I if I commit that you know, let's say you get it in the next two weeks that I would have something out within two weeks after that, would that be sufficient?

I'm I'm fine with that.

No objections.

Yeah. Maybe, yeah, maybe we can do that. Again, I don't you all have enough deadlines that courts give you. Don't want to give hard deadlines unless these are deadlines that you all can meet without a problem. All right. All right. So let's leave it open. There's nothing else for anybody to submit. Is that correct?

That's my understanding.

That's correct.

Okay. And but you will get the exhibits that we had from the first hearing.

And just to confirm, you said let's leave it open. But this the case and the argument is closed and then we'll in your review and so there are no additional submittals?

Right.

Okay. Thank you.

Okay. I think that's it for this case then. We'll go ahead and close out the hearing on this one. We had only one exhibit from today, I believe. And I share that with the city administrator. Thank you. Well, moving right along. What's order here? What do we do? Right.

You ready for the next case, mister Majer?

I'm ready for the next case. Are we ready?

Letter JAsInJuliet, case 2517691231 Redwood Court.

Okay. Marco Island versus Aqua Construction and Development. Do we have anybody here on that case?

Your honor, Peter Huey, on behalf of the respondent. Okay.

Mister Miller? Morning, mister magistrate.

Good late morning to you.

Again, my name is Gary Miller, code enforcement officer with the city of Markle Island Police Department. Address of the violation is 1231 Redwood Court, which is within the municipal boundaries of the city of Marco Island. On 09/14/2025, I observed a court enforcement violation of a dis illicit discharge, which is a violation of the Marco Island code 18 dash two one two echo one. I took picture of the violation, which is accurate reflection of what I observed at that time. Here you can see it's a it's a lot where a house was demolished along the back of the property.

Here you can see where sand soaked dirt is flowing over the seawall and going into the canal. You see here, here's a picture of a boat dock facility where the sands washed down fairly far onto the boat dock facility and the sand and silt is going between the slats of the boards and also into the canal. Issue a notice of violation for violating eighteen two one twelve echo one, and I I wrote it for irreparable and irreversible damage. Copy of the notice of violation.

Okay.

Posting of the notice violation. Of course, because it was reparable, no follow ups were conducted. Here's affidavit of violation, affidavit of posting, notice of hearing to the homeowner, notice of hearing to the contractor, posted notice of hearing, certified mail document to the homeowner, certified mail document to the contractor, and a five year history revealed no prior violations for either the homeowner or the contractor. And that is all I have.

Alright. Any cross examination?

Just a couple of questions.

Okay. Once again, I I I'm not sure you're on the mic when you gave your name for the record.

Peter Huey on behalf of the respondent.

Thank you.

And I'm sorry. What was it officer Miller?

Yes.

Officer Miller, what was the date of the violation?

Start off half a look at the sheet. Date of violation was 09/14/2025.

Do you know if the respondent came into compliance? Strike that. Officer Miller, there was two violations initially, One for the silt fence down and then one for the discharge into the canal, correct?

That is correct. I wrote two notice violations.

On the same date, correct?

That is correct.

The silt fence know,

they really need

to get two mics. For the silt fence violation, do you know if that was remedied?

Yes, it happened to be when I was writing the violations that the contractor came on scene. We spoke and he did correct the silt fence violation within the compliance date timeline.

And what was that time? Mean, it pretty quick within a couple of days?

For Assault Fence, I think it was five days I give and it was corrected within those first few days.

No further questions. No further questions. Okay.

Any redirect? Okay. Anything else, mister Miller?

I have nothing else, mister Magistrate.

I I do have a question just so I can clarify. You wrote a you wrote a silt fence violation notification or notice. But that would that was not a irreparable and irreversible.

Well Is

that correct?

I'm not criticizing. I just wanna clarify what you did. One you wrote for irreparable and the other you didn't. Is that it?

Yes. That is correct. Because the silt fence and you can see pictures where it's down in multiple locations on the back of the property. That I wrote our typical silt fence violation. I think I gave five days to correct it, because to me that's not that part of it's not irreparable. Being down caused the irreparable damage, but so I wrote one for irreparable for sand, silt, sediment going into the canal. And then I wrote the silt fence violation five days to repair it. And it was repaired within the compliance date. So that case was closed out.

So that case is not before me?

Case is not before you today. Okay.

Thank you. Anything else for the city?

Other than just to reiterate the clarification that the irreparable is the discharge of the sediment into the water. It's not what you would call it. And considering the nature of the materials that has been discharged into the water, we have formulated our request for a fine accordingly.

Anything on your side?

If you don't mind, do you know what caused the Silk Fence to come down?

I was not there, I don't know why I could speculate, but it would just be speculation on my part.

Do you know if there was a heavy rain?

We did have heavy rains like the preceding week or so before I wrote this violation.

No further questions. And, magistrate, to to the extent this speeds it along, we're not gonna contest. The Silk Fest came down the there was a discharge into the canal. I'm kinda just listening these questions for the the mitigation phase.

Thank you. So if there's nothing further from either party, I'll go ahead and rule. Based upon the testimony and evidence presented here at this hearing, I find as a matter of fact that the conditions described did exist at the location and on the dates and times testified to. I conclude that as a matter of law, the conditions alleged constitute a violation of the ordinances of the city of Marco Island, so the findings guilty. Now let's get to the penalty phase.

Since it is it it was noticed as being irreparable and irreversible, then I I'm sure you're aware, counselor, that fines are significantly more per day. It's not a fine per day. It's it's a onetime fine, but it's a lot more money than than the normal $250 limit. So first, let me get a recommendation from the city as to what the fine should be.

City seeking $500 fine and $50 costs.

$500? $500 fine. Okay. You're you object to that?

No. I support that along the lines of this. It was a heavy rain. It was unintentional. We cleaned it up in two days.

I think you're getting a lot of credit for that because I haven't seen too many that were at that number. And you're not objecting to the cost of prosecution, are you? And just

to support that, I mean, is the mitigation effort. You can see they, you know, they went out there. So the the the violation was on a Saturday. They couldn't do anything on a Sunday. Otherwise, they'd violate a different ordinance. They had this thing up like that on Monday.

Okay. Well, based upon the recommendations of the city and not objected to by the respondent, the fine will be $500, one time fine, and $50 cost of prosecution. Thank you. I'm sorry? Contractor only. Oh, is it against the contractor only or against the owner?

Contractor only.

Contractor only.

Yeah. We'll take

care of Yeah. That's always very important. Thank you for bringing that up. Okay.

Next one is letter FAsInFrank, case 251580.

That's F I'm sorry. It was f, you say? It's 1293 Winterberry Drive, Luke's Diamond Construction LLC and Sinclair Real Estate Properties? Correct. No building permit.

Mister Miller?

Mister Magistrate, again, name is Gary Miller, code enforcement code enforcement officer with the city of Markle Island Police Department. The address of the violation is 1293 Winterberry Drive, which is within the municipal boundaries of the city Of Markle Island. On 08/18/2025, I observed a code enforcement violation of work without a permit, which is a violation of Marco Island code one zero five point one six dash one one one. I took pictures of the violation, which is an accurate reflection of what I observed on that date. This address was the site where there was a house.

A demo permit was issued for this house. When the house was demolished, they also removed the sidewalk, which requires a second permit with the city of Marco Island. See, there is no sidewalk. A picture of the address, aerial before the house was demolished and you it's hard to see.

Where would the sidewalk go in that picture? It's

it's goes you can see it a a little right there, but it's kinda hard to see. But there there was a sidewalk

sidewalk down the street and that was removed?

That was removed. To do that, you need a right away permit for sidewalk removal in the city of Markle Island. And once the sidewalk is put on a lot or a house, then it must be maintained in perpetuity. So I issued a, notice of violation for violating one zero five point one six dash one one one, and I gave a compliance date of 10/17/2025. And here's a picture of the notice of violation.

Okay.

Issued a stop stop work order on that date. Here's the posting of the notice of violation and a stop work order. Attached is or attached. Here is the the building department issued a stop work order, work without a permit into their system. Follow-up conduct investigations were conducted on 10/18 and 10/20 or on 10/18 and 11/04.

Here's pictures of 11/04. There's still no sidewalk. A search of the building department's records today shows that a right of way permit was applied for on 11/14. It's just been applied for, so it's has it's not even in review status yet, but it was applied for online. Attached is the or here is the affidavit of violation, affidavit of posting, Notice of hearing to the homeowner.

Notice of hearing to the contractor. Posted notice of hearing. Certified mail document to the homeowner, certified mail document to the contractor, and a five year history revealed no prior violations for either the homeowner or the contractor. And that is all I have.

Okay. Thank you. Any objection attorney, you any objection to the documents that have been No. Entered? They'll be entered into evidence without objection. Anything else for his witness?

That's not it.

Mr. Nutella? Okay. Thank you.

I've got just a couple of questions for clarification. And because I didn't speak into the mic again, Peter Huey on behalf of the respondent. You gave me three times in a row today. Couple of questions. So when you issued the stop work order, what work was being done? The

work that was being done was the sidewalk was removed without a permit.

Do you

know when the sidewalk was removed?

I do not know the exact date the sidewalk was removed. I could look up and find out when they pulled the demolition permit for the house removal.

Okay. So it it and maybe it's just, nonmaclutre. So, is the proper course to issue a stop work order when a sidewalk has already been removed in order to, I guess, get the sidewalk back?

Yes. Because they did work removing the sidewalk that requires a permit for the city of Marco Island.

Okay. So the stop work order had to do with past work, and no ongoing work was happening when you actually issued the stop work order?

No. When I was there, there was no construction work being done at that time.

And when you gave the compliance date, what did you ask them to do to come into compliance?

It would it would be to to go to pull a to pull a permit to get approval to remove the sidewalk.

Okay. So apply for a permit to remove the the sidewalk and just apply for it or actually obtain it?

Well, it's apply and obtain.

And you stated that it had been applied for at this time on 11/14/2025?

Yes. It was electronically applied for. It hasn't when I looked this morning, it wasn't even in application review status. It had just been applied for on the fourteenth.

No further question to this witness.

Thank you. Anything else from the city?

Nothing further.

Alright. Mister Hui?

I'm gonna briefly call one witness, mister Jeremy Dixon.

Thank you.

Good morning. Jeremy Dixon on behalf of Dixon? The property Yes. Dixon.

And how do you spell that?

D as in David, I x o n. Okay.

Mhmm. The short spelling.

And mister Dixon, what is your relationship to this particular property and the, respondent?

They're a friend of mine, also I'm a realtor, and they're my client.

Are you familiar with the, the demo permit that was actually issued for the home on this property?

Yes. I am.

Were you involved with the demoing of that property? Yes, I was. At the time that the property was demoed, tell me about the sidewalk.

So at the time the property was existing, it had a brick paver sidewalk. The existing sidewalk was disrupted by the large trees that you could see from the aerial photograph and their roots. So it was in really poor shape. When we demoed the property, filed for a demo permit, demolished the house When we removed the trees as well from the property, per our permit, the roots just ripped the sidewalk completely out. So it wasn't our intention necessarily to remove the sidewalk. That's just what happened. It was already in pretty poor shape. Maybe we've got a couple other photographs maybe I can get for you. But they came out at that point in time. That was done in 2024.

We filed the permit. It was issued 05/23/2024, and that permit was closed 06/20/2024. No issues whatsoever. It was signed off on. We also issued after that a seawall permit that was properly filed. Seawall was removed and replaced, signed off on. No issues at that point in time either. No no address nothing was addressed towards the sidewalk of that of either of those two permits.

When was the sidewalk already removed when the demo permit was closed out?

Yes. It was completely removed to exact exactly what's there today with the exception of the seawall being replaced. Everything that's in existence, was done at the time the, the demolition permit was closed out.

Is there anything further you'd like to add, mister Dixon?

The only thing I'll add is the the property owner would like to comply. They've contracted a local building contractor to file for the permit for the sidewalk and install the sidewalk. We've met on-site with Herb from the that will handle the permit process and the review of that installation ready to go. We probably have it wrapped up in a couple weeks if we can just get the permit issued.

No further questions?

Okay. Anything from the city?

Nothing further. Yeah. Thank you.

The the documents, I think, have been entered into evidence. You there's no objection. Right? Okay.

No objection.

Thank you.

Can't remember if it was this case or the last one. Okay. So anything do you have anything else to present, attorney Healy?