allegation that he moved fill his property in violation of the site development done in requirement of the county and that he allowed phil to be brought to the property in violation of a stop work order now as it relates to the facts of the case that are set forth in the transcript and in the common law record the case that was brought  in this regard was one of could have been easily proven if they had chosen to follow through with each aspect of the case they chose not to and because of that they did not meet their burden in this case specifically as it relates to the issues that are before this court there's an issue of jurisdiction from the standpoint of the entirety of the proceedings a review of the transcript shows that there was never any that's the second part of the equation there was never any indication from any witness brought by the state of whether or not this partial glenn was in the incorporated or unincorporated part of the will county again that was a simple question  simple answer that could have brought that they could have proven in a matter of two minutes they elected not to and this case the this definite cell suggest that the that the county ordinance deals with the issue record that pointed them out all he suggested was that he's sitting in the courtroom more directly is related to that identification that ties into the allegation regarding the violation of the stop work order specifically to the defendant himself and then corrected himself and noted that he had brought the stop work order in fact to the defendant's wife again though he never once suggested that the defendant intervention by the county in this regard there was a just and that there was a work going on in the property that there was a field being brought to the property that they were mounds of dirt on the property  in fact mr teacher testified that he came to the property in january two thousand and seven at the request of mr kelly got in and found no evidence of anything that he could cite he came back in may of two thousand and seven and suggested that he was able to see mounds of dirt or he didn't testify whether or not those mounds of dirt were new dirt wrought on the property whether they were dirty move from one portion of the property to another whether they were dirty removed from the property now in order the sting was under a mandate to prove and harmed or they could have brought somebody from the army corps of engineers they could have brought a topographical map they could have brought somebody who could testify the estimations subject cross examination as to how much dirt was on the property again no testimony mr gillat guy who suggested he was a landscaper by trade said he saw a number of six wheelers and a number of semi loads going to  w the progress he suggested those loads contained a certain amount of dirt but he didn't know whether there was a dirt in the road to the property or leaving the property he didn't know whether been put on a case at all right but i think what i think they're not necessarily ship the birds the defendant and i don't think that would be appropriate in this regard especially when we're talking about a quasi criminal prosecution in this case you would  yes yes there would be but in this case you would be requiring the defendant to essentially suggest to bring in an expert witness to testify that there was less than two hundred yards or will there be there may be twenty yards of dirt on the entire surface would unnecessarily shift the burden to defend to prove innocence in this regard and stead of for the state to prove their case from the standpoint of it and there's a book and there's a many cases cited regarding necessarily with paul a criminal penalty criminal penalty would mean that they would have to prove each each part of their case beyond a reasonable doubt now from the standpoint of the court review the entire record of the organs off of the land we don't know mr gillon going to suggest that we saw trucks going to him from he doesn't know whether the trucks were empty doing two and full going away or vice versa ultimately from the true i don't believe there was an element that the county or the state had to prove there was just the authority under which it had taken action i don't believe that they i believe that that's just the authority under which it can act and if the defendant believes he is not subject to the ordinance then he could do a motion to dismiss prior to the trial or show that he was not under the authority not it cannot be under the ordinance counsel stated that jail time is not required state in this case it simply was not available the a political goal penalties are set for them section fourteen point fourteen and calls for fines only because of that the clear preponderance of evidence stander is the standard that's a political here on the defendant refers to various elements that you believe this state needed to prove and did not in this case and i further i'd like to touch upon the defense argument that the state didn't prove that the defendant actually and have conversations with the defendant after issuance of the stop work or basically having conversations about what he needed to do to come into compliance i believe that was sufficient to show that the defendant was in fact aware of the south work or barring that the state didn't prove that the defendant came into an exemption under the statute under the ordinance there are eight exact exemptions or exceptions to the permit requirement we're yes we still believe that that's not an element that the state needs to be proof to prove i believe that there is something if the defendant it wouldn't be an affirmative firman of defense necessarily at trial as an exemption to the statu but however it would be incumbent upon the defendant to perhaps pretrial say the county has no authority to prosecute me i don't live in on more paraded well county here's my documents that show file a complaint against the defendant but it's an element of the crime that needs to be her of the offense ordinance that needs to be proved testimony that was presented by him and he didn't back no the defendant from previous encounters with him he testified to the incident prior to investigating this particular case he talked to him on the telephone in fact and think during  violation to allow them to prosecute the defendant and this case again there is the there is no mention whatsoever in the entirety of the of the record of where this property is and who owns the property mr president chavez is being prosecuted but we don't know whether he's the owner we don't know whether or not his wife is the owner we don't know whether or not they own it jointly we don't know anything about ownership of this property other than it suggests that mr didn't have it's the defendant now the other issue that we need to address is the fact that the sto work order it suggests in paragraph see that the defendant restore the site to the condition it was in prior to the issuance of the stop work or so are you aware of whether or not the store in the site every day that he is in violation so it's a do so it's a it's a situation where he can win if he is in violation and he attempts to remove soil to bring him back in compliance with the ordinance then is he guilty of violating the stop work order so does he essentially get fined for not complying with the stockbroker or when he was attempting to comply with the stop water which would require is fine because he was moving dirt again with out the specific terms of the stop work order we can't answer that question and for that reason i don't think that either of these