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07-05-94 ciTY or ATLANTIC BEACH CODE ENFORCEMENT BOARD AGENDA 7:30 P. M., JULY 5, 1994 Call to order Pledge to the Flag Roll Call 1. Approval of the minutes of the meeting of May 3, 1994 2. Recognition of Visitors and Guests regarding any matters that are not listed on agenda. 3. Old Business: Appeal of Decision of the Board - Richard Brown Case No. 0034 - Richard A. Brown - owner of property located at 818~Cavalla Road. (Property has been brought into compliance). The board at its meeting of May 3, 1994 voted to place a lien of $500.00 against property. (Property had been in violation of Sections 12-1-7, (Open Storage) ~• -tires, air tank, fenders, trailer; 12-1-3 trash and debris in front yaz'd; 12-1-1 - animal feces in rear of building, 21-24A, abandoned three wheel scooter in front yard; abandoned vehicle on trailer,in fire lane on rear of property, and violation of Standard Housing) Code Section 305-3-2 - rotted eaves over front portico). Status of Lien Activity The Board at its meeting of May 3, 1994 voted to place liens against the following property owners: Case No. 0068 - John Shields - owner of property located at 725 Redfin Drive, in violation of Section 12-1-7 - miscellaneous trash on the property (tires, mattress, chairs, and other items) - (The Board at its meeting of May 3, 1994 voted to place a lien of $100.00 against the property). Case No. 0069 - David Thomas (Occupant) - Lillian Dove (owner of property) - 872 Bonita Road, in violation of Section 12-1-7 - outside storage of file cabinets and other miscellaneous items. (The Board at its meeting of May 3,,1994 voted to place a lien of $2,350.00 against the property). The above property owners were given a period of three weeks time to pap their fines. Since the fines were not paid the City is in ' the process of placing liens against the property through .the Circuit Court of Duval County. , 111 ~ ~~~r ~,lw f~ •PS ai ~ .i'.S!iu.-.n `i ~: ~ •~'1 ye' a i• .~ ~~. :~ . r~ Page 2 Code Enforcement Agenda - July 5, 1994 Status of nroaerty located at 702 Cavalla Road (Sutton/Watson) We have been unable to ascertain correct ownership of the property. No one is home during the day from 8:00 a. m, until 5:00 p. m, and city tax rolls indicate there has been no change in ownership. We will pursue the matter and report to the Board. 4. New Business Request for lien action It is requested the Board vote to place a lien iii the amount of $232.55 for weed abatement and associated administrative and advertisement expenses on Lot 53, Fairway Villas, owned by Kenneth H. Krygier. Case No. 0073 - ffartson G. Hector - owner of property located at 387 Skate Road, in violation of Section 24-157 - front gate over four (4) feet high; side yard fence (set back) over four (4) feet high. Case No. 0074 - William J. Dorsey -owner of property located at r 2313 Beachcomber Trail, in violation of Section 24-164(3), Fences 'required around swimming pools. Case No. 0075 -Edward Long -owner of property located at 363 Skate Road, in violation of Section 21-24, abandoned vehicle (unregistered) and Section 12-1-3, high weeds and grass. 5. Board Members Comments 6. Adjournment Minutes, Code Enforcement Meeting July 5, 1994, Page 1 MINUTES OF THE CODE ENFORCEMENT BOARD MEETING HELD AT THE ATLANTIC BEACH CITY HALL ON JULY 5, 1994 CALL TO ORDER present: Edward Martin, Chairman Barbara Bonner Heywood Dowling, Jr. Theo K. Mitchelson Kathleen Russell Lou Etta Waters And: Suzanne Green, Prosecuting Attorney Alan Jensen, Legal Counsel to Board Karl Grunewald, Code Enf. Officer Trudy Lopanik, Secretary r Absent: John Venn (Excused) Workshop Session Ed Martin, Chairman, conducted a workshop session to apprise Board members concerning a recent Code Enforcement Seminar he attended, along with Heywood Dowling. He indicated information was given relative to the methods other cities used for Code Enforcement. He indicated he had asked Mayor Fletcher that two ordinances be brought before the City Commission for action. One ordinance would require that re-connection of water to a house in a new name could not occur until the building passed inspection and all liens were satisfied. The other ordinance would require a Certificate of Occupancy every time a house was re-rented. It would not be possible to get A Certificate of Occupancy until all liens were satisfied and all city codes were met. Pir. Martin explained both ordinances were in use in other city municipalities and were very successful. He added it was felt the ordinance controlled absentee landlords. Under discussion, Mr. Martin explained other matters that had been discussed during the Code Enforcement seminar. Suzanne Green, Prosecuting Attorney, reported concerning problems collecting assessment liens when foreclosures of properties occurred. She distributed a Memorandum of Law dated July 5, 1994 concerning the matter (attached herewith and made a part hereof). 1. Approval of Minutes of May 3, 1999. A motion was made, seconded, and passed to approve the minutes of the meeting of May 3, 1994. 3. Recognition of visitors and quests - Minutes, Code Enforcement Meeting July 5, 1994, Page 2 There were no visitors or guests. 3. Old Business: Appeal of Decision of the Board - Richard Brown Case No. 0034 - Richard A. Brown - owner of property located at 818 Cavalla Road. (Property has been brought into compliance). The board at its meeting of May 3, 1994 voted to place a lien of $500.00 against property. (Property had been in violation of Sections 12-1-7, (Open Storage) -tires, air tank, fenders, trailer; 12-1-3 trash and debris in front yard; 12-1-1 - animal feces in rear of building, 21-24A, abandoned three wheel scooter in front yard; abandoned vehicle on trailer in fire lane on rear of property, and violation of Standard Housing) Code Section 305-3-2 - rotted eaves over front portico). Chairman Ed Martin read a letter from Richard Brown requesting that the $500.00 fine levied against the property be waived (letter attached hereto and made a part herewith). Mr. Martin summarized ttie citations that had ~• been mailed to Mr. Brown, as indicated by memorandum from Earl Crunewald, Code Enforcement Inspector, dated Pfay 13, 1994 (memorandum attached hereto and made a part herewith). He indicated the fine during which non-compliance occurred could have amounted to over $3,000 but the Board voted to fine Mr. Brown only 5500.00. Richard Brown indicated he resided at 1302 Neptune Grove Drive East, Neptune Beach, and that he was the owner of property located at 818 Cavalla Road. He explained an earlier notice from the city had been mailed to the tenant who resided at 818 Cavalla Road. He explained the tax rolls mistaken indicated that he resided at 818 Cavalla Road when in fact he did not reside at 818 Cavalla Road. He indicated that the tenant did not advise him as soon as she had received a certified letter, and it was not until after some time had evolved that the tenant delivered a certified letter from the city to P1r. Brown. Immediately upon receiving the letter, Pir. Brown explained, he contacted Karl Grunewald and thus began work to bring the property into compliance. Mr. Brown indicated one of the problems was vehicles that belonged to ttie tenant that did not have proper tags, and another problem was outside storage of items, to which the tenant agreed that the items would be addressed and/or removed. Other items that were not in compliance relative to the building were taken care of by Mr. IIrown. Mr. Brown felt the amount of $500 was too high of a fine for the items that were in non-compliance, and he asked the Board to waive tt~e fine. tie explained he intended to cooperate with the city in the future. hlr. Martin explained the Board was well aware that there had been problems with delivery of mail. lIe explained an extension of time was granted to Mr. Brown on March 9, 1994, which extended the time for work to be completed from March 10, 1994 until March 31, 1994. was still in non-compliance. Minutes, Code Enforcement Meeting July 5, 1994, Page 3 On April 4, 1994, however, the property Mr. Brown was asked how long he had owned the property to which he responded he had owned the property for five or six years. When asked if he made inspections of the property Mr. Brown indicated he inspected it periodically but that he did not inspect it on a daily basis. It was explained P1r. Brown received his tax bill from the Tax Collector's Office, even though the tax records indicated incorrectly that he resided at 818 Cavalla Road. Mr. Brown further explained there was a mortgage on the property and the taxes were paid by escrow. When asked when Mr. Brown received the original notice, Mr. Brown explained his tenant had dropped off the notice at his house some time after it had been received via certified mail. Under discussion by the Board, it was explained that even after the extension was granted until March 31, 1994, the property was still 32 days in non- compliance. It was the desire of the Board to acknowledge that there was improvement to the property but not by the target date. The Board could have fined the property $3,200 representing $100 per day fine for 32 days of non- compliance, but the board voted to fine the property only $500. Mr. Brown indicated he thought all the items on the check list were taken care of. He also thought all items that the tenant had responsibility for had also been completed. He explained he had been out of town for a brief period of time, but he was under the impression that all work had been completed by the extended deadline. It was determined this property had been in non-compliance in the past but that the problem had been worked out with the tenant and the property had been brought into compliance. A motion was made by Ed Martin to recognize the willingness of Richard Brown to work with the City and to reduce the fine from $500 to $250, but the motion died for lack of a second. A motion was made by Fteywood Dowling, seconded by Barbara Bonner, and passed to deny the request by Richard Brown to remove the fine of $500. Status of Lien Activit Mr. Martin summarized the status of lien activity: Case No. 0068 - John Shields - owner of property located at 725 Redfin Drive, in violation of Section 12-1-7 -miscellaneous trash on the property (tires, mattress, chairs, and other items) - (The Board at its meeting of May 3, 1994 voted to place a lien of $100.00 against the property). r`, Minutes, Code EnforcementMeeting July 5, 1994, Page 4 Case No. 0069 - David Thomas (Occupant) - Lillian Dove (owner of property) - 872 Bonita Road, in violation of Section 12-1-7 - outside storage of file cabinets and other miscellaneous items. (The Board at its meeting of May 3, 1994 voted to place a lien of $2,350.00 against the property). The above property owners were given a period of three weeks time to pay their fines. Since the fines were not paid the City is in the process of placing liens against the property through the Circuit Court of Duval County. The Board accepted the report concerning the status of lien activity. Status of nroperty located at 702 Cavalla Road (Sutton/Watson) it was reported the city was unable to ascertain correct ownership of the property. No one is home during the day from 8:00 a. m. until 5:00 p. m. and city tax rolls indicate there has been no change in ownership. It was reported the matter would be pursued. 4. New Business Case No. 0074 was taken out of sequence and acted upon at this time. Case No. 0074 - William J. Dorsey - owner of property located at 2313 Beachcomber Trail, in violation of Section 24-164(3), Fences required around swimming pools. Mr. Martin read the case hearing procedure for case No. 0074 - William J. Dorsey, and all witnesses were sworn in. Karl Grunewald passed out pictures to the board and he advised the pool was still in non-compliance. Presently, a screened enclosure was being built which was a permitted enclosure according to tl~e city's code. Mr. Grunewald explained the permit to build the enclosure was issued on June 6, 1994. Because of inclement weather, however, the structure had not been built on schedule. It was explained the enclosure would be completed within a few days. A discussion ensued concerning whether or not the building permit from the city indicated that a fence or enclosure was required, to which it was explained that on final inspection the building department would not approve a pool unless it was fenced or screened. William Dorsey indicated he was an attorney and that he was representing ~, himself. He indicated as soon as he was advised he was in violation of the - code he immediately began to interview contractors to have a screen enclosure built around the pool. He explained a contract was agreed upon with Lifetime Enclosures, Inc. at a price of $10,000. He indicated every attempt was made to arrange to have the work finished in the appropriate time frame. }Ie indicated he did everything he was supposed to do and that he signed an n Minutes, Code Enforcement Meeting July 5, 1994, Page 5 application with Lifetime in April, 1994. When asked by Mr. Martin if he was aware when he built the pool that it had to have a screen around it, Mr. Dorsey indicated he was not aware a screen was required. He explained the house and pool were built together. Fie introduced Mrs. Dorsey who explained several quotes had been received before they decided to contract with Lifetime. Dave Wesley, representative from Lifetime Enclosures, indicated work would be completed by Thursday, July 7, 1994. He indicated even though the contract had been signed in April, 1994, the City of Atlantic Beach required certain type of engineering plans and thus it took several weeks to have the plans prepared. Also, conditions of rainy weather had held up construction to a great extent. A motion was made and seconded that a violation of the Code existed in that there was no screen around the swimming pool. It was felt by Theo Mitchelson that since every effort was made to comply the property should not be found in violation of the code. The question was called and the vote resulted in all ayes and one nay by Theo Mitchelson. The motion carried. A motion was made, seconded, and passed that the swimming pool enclosure must be completed by July 15, 1994 to the satisfaction of the Code Enforcement Inspector. If tFie swimming pool is not brought into compliance by July 15, 1994 there will be a fine of $25.00 per day against the property which will be in effect until the swimming pool is brought into compliance to the satisfaction of the Cade Enforcement Inspector. Case No. 0073 - 1lartson G. Hector - owner of property located at 387 Skate Road, in violation of Section 24-157 - front gate over four (4) feet high; side yard fence (set back) over four (4) feet )sigh. Mr. Pfartin read the case hearing procedure for case No. 0073 - Hartson G. Hector, and all witnesses were sworn in. Karl Grunewald passed out photographs which were taken May 13, 1994, and he indicated Mr. Hector had been out to sea. He explained every time he thought he had clarified to Mrs. Hector that the fence was in violation, when he returned to the site the violation was not corrected. Two weeks ago Mr. Hector returned from sea, and he lead the gate cut down and was in compliance relative to the height of the gate. Mr. Grunewald felt there was a lack of understanding on the part of Ms. Hector and because her husband was out to sea she was handicapped in that she did not have her husband's help. tie - indicated he felt a fine would place a financial burden on the Rector's and he advised against a fine. Flartson C. Rector explained he had friends in the navy wlio intended to help him bring the fence into compliance and that he understood what had to be Minutes, Code Enforcement Meeting July 5, 1994, Page 6 done. A motion was made, seconded and passed to give Mr. Hector until August 1, 1994 to bring the fence into compliance to the satisfaction of the code enforcement inspector. If the fence is not brought into compliance to the satisfaction of the code enforcement inspector a fine of $25.00 Per day will begin and will continue until the fence is repaired to the satisfaction of the code enforcement inspector. Case No. 0075 - Edward Lona - owner of propert}• located at 363 Skate Road,in violation of Section 21-24, abandoned vehicle (unregistered) and Section 12-1-3, high weeds and grass. It was reported that although the city attempted on many occasions to deliver the Notice to Appear to Edward Long, 363 Skate Road, that the Police Department had been unable to deliver the notice. Mr. Grunewald reported although according to the city's records the notice was not delivered, the property was now in compliance. After discussion, it was decided it would be the decision of the Code Enforcement Officer whether or not to bring the case before the Board at the next meeting. Request for lien action Karl Grunewald explained the events that had transpired regarding weed abatement. The property located at 2268 Fairway Villas Lane, Lot 53, Fairwa}• Villas, had been in violation of the Atlantic Beach Weed ordinance. As of November 17, 1993 the property remained in violation and the city was instructed to cut the weeds and grass on November 23, 1993. Work was completed on December 2, 1993 at a cost of $140.00. It was explained efforts to contact Kenneth Kr}•gier via certified mail had been unsuccessful but that according to tax records the address was correct. A motion was made, seconded, and passed, to place a lien of $232.55 for weed abatement and associated administrative and advertisement expenses on Lot 53, Fairway Villas, owned by Kenneth 1f. Krygier. 5. Board Pfembers Comments A discussion was held regarding the requirement of having fences around pools and the Board expressed its desire to make people aware that fences are required around pools before the pool is built, rather than after the pool is built. Don Ford, Building Official, explained final inspection would be approved only if there was a fence around the pool. If there was not a fence around a pool, final inspection would be withheld until a fence was constructed around the pool. The Board suggested having the permit indicate r'`• both a pool and fence were required and would be approved together. It was further suggested that when plans were submitted that the plans should be for both the fence and the pool. Don Ford was asked to make a suggestion at the next meeting on how to address the wishes of the Board. 6. Adjournment r, Minutes, Code Enforcement Meeting July 5, 1994, Page 7 There being no further business the Chairman adjourned the meeting at 10:00 p. m. Eduard Martin, Chairman Code Enforcement Board tl V ~ • ~ }SEHORANDUM OF LAN To: Don Ford Karl Gruenwald Code Enforcement Board Alan C. Jensen, Esquire From: Suzanne Worrall Green Re: Code Enforcement Title Problem: Superiority of Assessment Liens Date: July 5, 1994 Recently several instances have come to our attention concerning liens for assessments placed upon properties in Atlantic Beach which were subsequently wiped out by a foreclosure sale on behalf of the mortgagee of ttie property. For some time the courts have questioned whether "municipal liens" or "code enforcement liens" are co-equal with ad valorem taxes, thereby surviving a foreclosure sale and continuing against the real property involved. As a brief history, Chapters 159 and 170 of the Florida Statutes allowed such liens to be "on a parity with the liens of such state, county, and municipal taxes" or "co-equal with the lien of all state, county, district and municipal taxes, superior in dignity to all other liens, titles and claims" against the property. However, it is clear that although a city or county has the authority to render its liens equal with those of a municipal taxing authority thereby surviving a foreclosure sale, such language must be drafted within the ordinances of the city or county to give rise to a parity or co-equal status with the state, county and municipal taxes. In the case of Gleason v. Dade Countv, 174 So.2d 466, at 469 (Fla. 3rd DCA 1955), the Court acknowledged the ability of subdivisions of the State (county and municipal government) to draft ordinances which make their liens for services "equal in rank and dignity with the lien of county ad valorem taxes and superior in rank and dignity to all other liens, encumbrances, titles and claims in, to or against the real property involved." It is also arguable, that a code enforcement lien based on a municipal ordinance which proclaims itself co-equal with ad valorem taxes would take priority over a previously recorded mortgage. As it stands now, there is case law out of the Second District Court of Appeals which states the position that "a county's ordinance substantially impairs the mortgagees' prior mortgage lien by subordinating it to the county~s lien". if by operation of an ordinance, the mortgage can be relegated to a secondary position, the court found it was obviously of less value than the first ,priority lien for which the mortgagee had contracted. Thus, the ~~ ordinance retrospectively impaired the mortgagee's contractual position. however, this decision begs the questions of whether the priority of the code enforcement lien will prevail when the ordinance precedes the mortgage. In our circumstances recently, the assessment lien had occurred after the recording of the mortgage. Code enforcement liens under §162.09 of the Florida Statutes are clearly more predictable in that a municipality's order imposing a fine "may be enforced in the same manner as a court judgment". This means that such a Chapter, 152 Florida Statutes, lien encumbers all property; including mortgages which are assigned by a lender who has an unpaid lien filed against any of its real property. Therefore, if the lien attaches before the mortgage is recorded, such liens should be satisfied or paid off during a foreclosure sale. Consequently, in light of the accumulating amounts of assessment and code enforcement liens within Atlantic Beach, it might be wise to enact an ordinance which encompasses the language which allows the priority of a municipality or code enforcement lien to be on a par with those of municipal taxes, therefore surviving a foreclosure sale. If this were enacted, the funds expended by the City for continuous weed abatement or other nuisance or assessment ordinances could be collected at the time of sale of the property. Currently, if a property is sold, we are losing countless amounts of revenue in the foreclosure sale. 1 Title companies have increasingly taken the position that a municipal lien should be joined in a foreclosure sale. However, this most often is not the case. Should a municipality not be included in the foreclosure sale, there is a strong argument that the lien is enforceable against the property for payment. Although there is no clear cut law in this instance, it is our opinion that the passing of a ordinance or rewording of the superiority of liens ordinance would at least pave the way for the collection of these lost revenues. Given the uncertainty of the current status of the relative priority of municipal ordinance liens and mortgages (and the constitutional power of municipalities), it would be unwise for many mortgagees to fight with City hall as stated in pemura v. ounty of Alachua, 618 So.2d 754 (Fla. 5th DCA 1993). (1• ;, =~Ii K BROWN 1302 Neptune Grove Drive East Neptune Beach, Florida 32266 Tel. (904) 246-6029 ??~ ~~~:. f oA- ~,2 ~ C~r~ ~~~~~? ~ ~ Q 8~8 G?~~~~~ O~ G~~` - a~tn~.- . ,o~ .~, ~ ~ ~~~ ~ ~ ~u~~-~~ ~y~ ~~ ~- ~ ~ ~~`.~ • ~,~~ T ~~ ~ ~ ~ ~ ~` w~ .~ ~. ~~~~~, ~ ~~- ~-~~ ~~ ~ ~ ~~~ ~ ~ ~. !!, "~ ~~/~~a<..~.~- (+P AY 131994 Building and Zoning.,;. ;- ... >~'~ ~. ~ / ~.T ,. ii . ' `~aR ' ,e~ CITY OF ,t~lfasrtcc dear! - ~faztda 800 SF1r11NOLE ROAD - ATLANTIC 8EAC11, FLORIDA 32213-Sits ' ~ 1'ELEFIIONE (904) 26'F5800 FAX (90>) 247.5805 MAY 13, 1994 TO: ED MARTIN, CODE ENFORCEMENT BOARD CHAIRMAN FROM: ~,~ KARL GRUNEWALD, CODE ENFORCEMENT OFFICER SUBJECT: CASE #0034, 818 CAVALLA ROAD, RZCHARD BROWN 12-29-93 02-18-94 03-01-94 03-04-94 ~,~ 03-09-94 04-05-94 n, ORIGINAL NOTICE OF VIOLATIONS DELIVERED CERTIFIED MAIL TO OWNER AND ADDRESS OF RECORD (TAX ROLL PAGE 1716) CERTIFICATION SIGNED AND RETURNED NOTIFICATION TO APPEAR AT MARCH CODE BOARD RETURNED UNCLAIMED. SEE CASE FILE #0034 FOUND IN VIOLATION BY CODE BOARD AND GIVEN UNTIL 3-10-94 TO COMPLY FINDINGS OF FACT OF MARCH CODE BOARD DELIVERED CERTIFIED MAIL AND CERTIFIED RECEIPT RETURNED AND SIGNEb HY OCCUPANT, L. FONTAINE AS PER ED MARTIN, UNTIL 3-31-94 OF TIME GRANTED PROPERTY INSPECTED AND FOUND TO BE IN CONTINUOUS VIOLATION WITH SOME IMPROVEMENT