City of Marco Island reaches agreements with Madeira, contractors and realtor on probation

City of Marco Island reached an agreement with Madeira's condominium association and a contractor following a beach code violation late last year.

On Oct. 21, code compliance officer Andy Lindenmuth observed workers from Greenscapes of Southwest Florida trimming sea grapes on a dune area by 350 S. Collier Blvd. 

"I checked with our permit system and there wasn't any permit to trim sea grapes on the beach and there was no permit for Greenscapes to have their vehicle on the beach," Lindenmuth said during the Jan. 28 code enforcement hearing.

Each defendant stipulated with the city to pay $500 for trimming sea grapes and $500 for having a vehicle on the beach without a permit.

They also agreed to pay $50 each to cover fees and costs.

Kelly Davis, Greenscapes' attorney, said at the hearing it was an "honest mistake."

"Those were honest mistakes by Greenscapes not aware that their vehicle needed a beach permit," Davis said. "They have immediately applied to obtain the [...] beach permit for all of their vehicles." 

"There was no irreparable damage to that vegetation, it has since then flourish and fully regrown."

On Jan. 27, the Florida Department of Environmental Protection (DEP) sent Greenscapes a settlement offer to resolve the outstanding violation at Madeira, a document provided by the agency shows.

Although there are no actions required to correct the violations, Madeira and Greenscapes remain subject to civil penalties as a result of the violations.

The department is seeking that Greenscapes pay $200 in civil penalties for violating Section 161.053(2)(a) of Florida Statutes, which regulates coastal construction.

Greenscapes must also pay $500 to cover costs and expenses the department incurred during the investigation.

"They are issuing a civil fine and Greenscapes is going to pay that without contest," Davis said.

As of Friday morning, the Department had not received a response to the settlement offer, according to Alexandra Kuchta, operations analyst at the department.

Greenscapes has until Feb. 12 to accept the department’s offer.

As for Madeira, the department assessed it for additional civil penalties under a previous case.

From January:Marco City Council renews code enforcement magistrate contract in 5-2 vote

On Dec. 18, the department filed a consent order making Madeira and a different contractor, RR Restoration of Georgia, pay nearly $16,000 for destroying dunes and native vegetation last summer.

Dennis Kariores, RR Restoration's operation manager, paid the full amount on Dec. 19, according to DEP receipts.

The consent order was signed by Douglas Spong, president of the condo association, and James Fred Bonner, owner and CEO of RR Restoration, and it includes corrective actions which both parties are responsible to carry out.

Within 180 days, the respondents must place nearly 1,500 cubic yards of beach compatible sand fill in the impacted area. 

The sand fill will be obtained as part of the Collier County beach renourishment project already authorized by the department, according to the order.

The area will then have to be graded and sloped to meet beach elevation beyond the dune. 

Upon completion, the defendants must arrange a departmental site inspection and, if passed, the respondents will have 30 days following the completion of roof repairs to plant native dune vegetation on the newly reconstructed dune.

Within a year from when the consent order was filed, a minimum 80 percent overall survival rate of the dune plants must be established and 80 percent of the area must be covered with the selected species with no gaps. 

The consent order does not grant authorization for installation and construction of the crane and any staging material seaward of the Coastal Construction Control Line, which limits the area where construction can take place without a permit.

To install the crane, the respondents must complete a pending permit application, according to the order.

The respondents also agreed to pay $250 for each day they fail to timely comply with any of the requirements.

A violation of the terms of the order may subject respondents to judicial imposition of damages and civil penalties up to $10,000 per day per violation and criminal penalties. 

If events beyond the control of the respondents causes a delay, the respondents must notify the department of the anticipated length of the delay and include measures taken or to be taken to prevent or minimize it.

In such circumstances and in agreement between all parties, only then can the deadlines be extended without penalties.

There was no willful misconduct from the part of the contractors, said Spong.

"The Madeira board has made it clear to our staff that we have a zero tolerance policy for contractors who are performing work in and around our property without proper permits," Spong said to the Eagle in a phone call on Dec. 19.

"There is a requirement now that staff have physical evidence of all permits from contractors."

DEP sent warning letters to Madeira and RR Restoration on July 22 after a department inspection observed removal of native dune vegetation, use of heavy equipment and damage to an existing dune.

RR Restoration did this in order to stage a large crane to do roof construction in Madeira, according to Kariores.

From December:Madeira, RR Restoration ordered to pay nearly $16K for destroying dunes in Marco Island

For these violations, Myrnabelle Roche, the city's code enforcement magistrate, issued $1,050 in fines on Aug. 29 against Madeira and two contractors; one of them being RR Restoration. 

Roche delayed issuing other pending fines against the respondents in August, September and October as the city waited for them to submit a dune restoration plan. 

In November, the city chose not to have a code enforcement hearing because of recent staff changes. In December, the city did not have a hearing as well.

"Traditionally we have never had December hearings," Baer wrote in an email to the Eagle on Dec. 5.

Caleb W. Pringle, Madeira's attorney, requested Roche to issue a final disposition during the Jan. 28 hearing but Roche did not let him finish speaking.

"I'm gonna stop you right now because there's gonna be no addressing the findings at this point of time," Roche said. "I wanna follow the case through to make sure that they are in compliance." 

Joseph Natiello, the city's attorney, said he had reached an agreement with Pringle regarding the remaining fine. 

"Your honor, Mr. Pringle and I spoke earlier and we had come to an agreement on what the fine would be and it's no different that what we presented when this case first came before you in July and that was a $5,000 fine for the dune construction," Natiello said. 

"But if you find it prudent to hold off on making that formal final determination to monitor compliance the city has no issues."

From October:Madeira cuts dune vegetation without permits (again), MIPD reports

RR Restoration plans to start roof repairs at Madeira in April, Pringle said.

"I've seen too many times when I hear that something is gonna get done in a certain way, within a certain time frame, and the next thing we know it's not happening," Roche said. "I have my sneaky suspicion that that roof is not going up in April."

Her comments provoked laughter among some of the people present.

Roche ordered Madeira and RR Restoration to come back in two months at which point she could make a final determination. 

Sand dunes serve an important role by protecting inland areas from coastal water intrusion during high tides and flooding events, according to Colleen M. Gill from Collier County Waterkeeper.

The Waterkeeper Alliance is an internationally recognized, grassroots style organization that promotes swimmable, drinkable and fishable waterways.

"Dunes are able to absorb the impact and protect inland areas from high energy storms and act as a barrier to the destructive forces of wind and waves," Gill wrote in an email to the Eagle on Dec. 20.

"Dunes also are nature’s sand replenishment system, as offshore winds will blow sand from the dunes onto the beach, replenishing it; while blow sand into the dunes and the vegetation catches the sand helping build up the dunes naturally."

These areas also provide vital habitat and nesting sites for coastal birds such as black skimmers and royal terns, according to Gill.

"Sadly, the biggest threat to these habitats is human development and trampling of the dunes," Gill wrote. "Every dune that is removed, is only presenting future risk of flooding and erosion."

City reaches agreement with realtor on probation

In case you missed it:Marco realtor accused of putting mothballs into owl burrow agrees to 6 months’ probation

City of Marco Island reached an agreement with Roger M. Fleming, a local realtor on probation, after he was accused of putting mothballs into an owl burrow.

Fleming will have to pay the city $500 plus $50 to cover fees and costs.

Natiello said it is the maximum fine allowed by law given the circumstances of the case.

"This is a one time offender," Natiello said at the code enforcement hearing. "There is no irreparable damage or no permanent damage in this matter, no species were harmed."

Jeff Wright, attorney representing Fleming, said his client will donate $100 to Audubon of the Western Everglades and its Owl Watch program. 

Fleming pleaded 'no contest' in January as part of an agreement with the State Attorney's Office (SAO), court documents show.

As part of the agreement, Fleming was sentenced to six months probation, 75 hours of community service and a $200 fine, according to Samantha Syoen, SAO's communications director.

"The defendant pled no contest and that plea was accepted by the court," Syoen wrote in an email to the Eagle on Jan. 24. "'No contest' by definition is when a defendant accepts conviction but does not plead guilty."

Fleming must also pay $270 for court costs and the cost of prosecution.

"The defense asked for a withhold of adjudication but the prosecutor argued for an adjudication of guilt," Syoen wrote.

The judge adjudicated Fleming guilty on Jan. 24.

Shannon H. McFee, Fleming's attorney in this case, spoke to the Eagle via phone call after the judge's decision.

"Mr. Fleming resolved his case by taking responsibility for a bad decision," McFee said. "He is extremely remorseful for doing so and he looks forward to moving on with his life. "

Omar Rodríguez Ortiz is a community reporter for Naples Daily News and Marco Eagle. Follow him on Twitter and Instagram as @Omar_fromPR, and on Facebook. Support his work by subscribing to Naples Daily News.