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6-10-97 L CITY OF ATLANTIC BEACH CODE ENFORCEMENT BOARD AGENDA SPECIAL CALLED MEETING 7:30 P.M., JUNE 10, 1997 Call to order Pledge of Allegiance to the Flag Roll Call 1. NEW BUSINESS: tip Case No.97-6198 Ernest`Rocky"Russell(owner)and C.J. Eiras (occupant) and Corporation Officer,Artistic and Cultural Enlightenment Society, 86 Ocean Boulevard. The owner of the property is in violation of Chapter 18, Section 2, Failure to Register for the Purpose of Soliciting, Chapter 20, Section 52, Operating Without Proper Licensing, Chapter 24, Section 107, Commercial Business in a Residential District, No Use By Exception Granted, Section 161, Insufficient Parking for Present Use Code of the City of Atlantic Beach and Florida Statute 82105 Places Declared a Public Nuisance in that there exists on the premises located at 86 Ocean Boulevard, a/k/a Lot 7, Block 34, Atlantic Beach(RE# 170225-0100) the following condition(s): operating a commercial business in a residential district, no Use by Exception granted,insufficient parking for present use, operation of business without proper licensing,failure to register for the purpose of soliciting, failure to comply with the Florida Accessibility Code in its entirety,failure to comply with the Life Safety Code and the Standard Building Code. 2. ADJOURNMENT CITY OF ATLANTIC BEACH CODE ENFORCEMENT BOARD MINUTES SPECIAL CALLED MEETING OF JUNE 10, 1997 Call to order: PRESENT: Edward Martin, Chairman Ken Rogosheske Heywood(Pete)Dowling Lou Etta Waters Richard S. Mann Tammy Deitchman ABSENT: Theo Mitchelson AND: Suzanne Green, Prosecuting Attorney Alan C. Jensen, City Attorney Karl Grunewald, Code Enforcement Officer Julie M. Brandt, Secretary The meeting was called to order at 7:30 p.m. by Chairman Ed Martin, followed by the Pledge of Allegiance to the Flag by all present. 1. Approval of Minutes None. 2. Recognition of Visitors and Guests regarding any matters that are not listed on the agenda. No one wished to speak. 3. OLD BUSINESS: None. 4. NEW BUSINESS: Case No.97-6198 Ernest"Rocky" Russell (owner) and C. J. Eiras(occupant)and Corporation Officer,Artistic and Cultural Enlightenment Society, 86 Ocean Boulevard. The owner of the property is in violation of Chapter 18, Section 2, Failure to Register for the Purpose of Soliciting, Chapter 20, Section 52, Operating Without Proper Licensing, Chapter 24, Section 107, Commercial Business in a Residential District, No Use By Exception Granted, Minutes Page -2- June 10, 1997 Code Enforcement Board Section 161, Insufficient Parking for Present Use Code of the City of Atlantic Beach and Florida Statute 823.05 Places Declared a Public Nuisance in that there exists on the premises located at 86 Ocean Boulevard, a/k/a Lot 7, Block 34, Atlantic Beach(RE# 170225-0100) the following condition(s): operating a commercial business in a residential district, no Use by Exception granted, insufficient parking for present use,operation of business without proper licensing,failure to register for the purpose of soliciting,failure to comply with the Florida Accessibility Code in its entirety, failure to comply with the Life Safety Code and the Standard Building Code. Chairman Martin read the case hearing procedures for the case and all witnesses were sworn in. William Jeter, attorney for Mr. Eiras, stated that as a procedural matter, he was not notified of the Nuisance Statute charges until late that afternoon and did not have enough time to prepare a statement against those allegations. He further stated the subpoena his client received did not reference the statute concerning the Nuisance Statute and asked that the Board disregard the charge because it was beyond the scope of the subpoena. Prosecuting Attorney Green stated that under Florida Statute 162.12, there was no normal amount of days to serve notice and a reasonable effort had been made to do the same. Mr. Jeter then stated the"Occupancy Forbidden" sign posted on the building by the Fire Department had kept Mr. Eiras away and he could not receive the Notice of the Hearing if it was mailed. In referencing the charges listed above, Prosecuting Attorney Green stated the property is zoned RG-2 and was being used as a private club (a commercial business)which is not a permitted use in that zone, and alcoholic beverages were being sold. Mrs. Green then asked the Board to disallow the private club to reopen. Attorney Jeter conceded that if the use is commercial,then the city is right. However, he pointed out the use is not commercial because Mr. Eiras is a member of a charitable organization known as the Artistic and Cultural Enlightenment Society(ACES), who permits friends to use his house. Mr. Jeter further stated Mr. Eiras could not be charged with soliciting without a permit because he was not going door to door and was in his own home when he asked his friends for donations to this charity. Prosecuting Attorney Green inquired as to Mr. Eiras' primary residence, and he stated he lived in Sawgrass at Ponte Vedra Beach and 86 Ocean Boulevard could be considered his beach house. `, He also stated his office and driver's licenses addresses were 1015-226 Atlantic Boulevard LL Minutes Page -3- June 10, 1997 Code Enforcement Board (Mailboxes, Etc.). After determining Mr. Erias' primary residence, Prosecuting Attorney Green inquired as to the purpose of Artistic and Cultural Enlightenment Society(ACES) and showed a membership application listing the different kinds of memberships and fees. It was explained that ACES was a charitable organization which provided a networking tool for local artists and art. This application form is attached and made part of this official record as Attachment A. The membership dues and Gallery fee schedule were explained. When asked for membership figures, it was stated there were between 300 and 350 members. It was also explained that"socials" were conducted from 9:00 p.m. -4:00 a.m. The following questions were asked by Prosecuting Attorney Green: Is alcohol served? Is there a designated bathroom for ladies? Are there price tags on the artwork displayed? Is there a posted dress code and hours of operation? Are there typical home furnishings? Can you live there? Is there a card table and pool table there? All answers were yes. Mr. Eiras was also asked if there was a cash register on the premises and he stated there was no cash register. When asked the average attendance per night for socials, it was reported that between 10 and 100 attended on social nights which occur five nights a week. fir Other inquiries were made concerning the interior of the house. When asked if there were interior doors, it was stated there were doors on the third floor where records are stored and all other doors, except for the bathrooms, had been removed. Discussion of the modifications to the home also revealed a wooden bar area constructed on top of the stove making it inoperable, a boxed-in, carpeted bathtub, a faux(false)wall in the garage to conceal the garage doors, and the fireplace and water heater enclosed with drywall. Prosecuting Attorney Green then asked if an agent of the Division of Alcoholic Beverages and Tobacco had been on the premises. Mr. Eras stated he had personally invited an agent, but did not know if he had arrested anyone. Discussion then focused on whether Mr. Eras received any financial benefit from ACES. Mr. Eiras stated he did not receive financial benefit and he paid for the drinks for members out of his own pocket. He further stated ACES had taken in $16,000.00 since January, all of which was spent, and the organization was now$10,000.00 in debt. Mr. Eras was also asked if he received any monetary gain from anything sold in his home and he replied no. It was further stated the prices were posted on the works of art because so many patrons asked the cost, but nothing was sold on the premises. All paintings, including the one hanging on the bathroom door indicating "Ladies", were sold through"Thistle Art" art brokers. Mr. Eiras also pointed out the organization's tax exempt status and that he had obtained prior approval for ACES to operate from a Sergeant Campbell at Alcoholic Beverages and Tobacco. L( Minutes Page -4- June 10, 1997 Code Enforcement Board Discussion then turned to the modifications to the building made by Mr. Eiras. Board Member Dowling inquired if Mr. Russell, owner of the building, knew what was being done. Mr. Eiras stated he was aware of the modifications being made and approved of them before they were completed. Mr. Dowling also inquired if there was a bed on the premises and Mr. Eiras stated there was one bed located on the third floor. Board Member Rogosheske commented that the social hours(9:30 p.m. -4:00 a.m.) seemed peculiar, and then questioned why the bathtub in the home was boxed-in and carpeted. It was stated the tub was covered as a safety feature to prevent someone from injuring himself should he become drunk and fall in the tub. Board Member Dietchman questioned the line on the ACES application form pertaining to law enforcement officers, and was told they needed to know if the applicant was involved in law enforcement so they could be utilized for security purposes if granted membership. Mr. Eiras' charitable contributions and involvement in local charities was also noted. 41, Prosecuting Attorney Green called Code Enforcement Officer Grunewald who passed out photos of the violations found during the June 4, 1997 inspection of the property. When asked how the notice of the violations got to Mr. Eiras, Mr. Grunewald stated he personally served Mr. Eiras with a subpoena on June 4, 1997. Mr. Grunwald also read a list of the violations while the photos were being examined. Mr. Jeter asked for and was given the list of violations. Prosecuting Attorney Green inquired if Mr. Grunwald had seen a bed during his inspection of the premises and Mr. Grunewald stated he had not seen a bed. Mr. Grunewald stated the original complaint concerning the property came from Madelyn Tucker who lives at 88 Ocean Boulevard. Ms. Tucker reported excessive noise, people urinating in her yard and bottles being thrown into her yard. At this time, a memo written to Code Enforcement from Public Safety Director Thompson dated June 2, 1997, concerning operation of the"club" at 86 Ocean Boulevard was referenced by Prosecuting Attorney Green and various items listed discussed. The memo is attached and made part of this official record as Attachment B. Attorney Jeter took time to read the memo and asked for a copy. He then objected to the hearsay contained in the memo because Mr. Eiras was not present to confirm what was said during the conversation between Public Safety Director Thompson and Ms. Leslie Finadinos(as spelled in the memo). Mr. Jeter then pointed out the name was misspelled in the memo and should be spelled S-i-n-a-d-i-n-o-s). e Minutes Page -5- June 10, 1997 Code Enforcement Board Prosecuting Attorney Green then brought up the parking problem and it was pointed out there was adequate parking for a residential use but not for a commercial use. Attorney Jeter then asked Code Enforcement Grunwald if he questioned the accuracy of the memo in light of the fact Ms. Sinadinos' name had been spelled incorrectly or if this would affect his opinion of the information presented and Mr. Grunewald stated no. Chairman Martin recessed the meeting for ten minutes and it was reconvened at 9:20 p.m. Continuing with testimony, Prosecuting Attorney Green called Mrs. Tucker of 88 Ocean Boulevard who spoke concerning the traffic/parking problems, obscene language, loud talking at all hours of the night, people urinating in her yard and the fights which occurred at 86 Ocean Boulevard. Mrs. Tucker further stated she had contacted Mr. Grunewald because of the on- going annoyances. It was pointed out that after the complaints, Mr. Eiras installed a privacy fence to keep people from going on Mr. Tucker's property. fir Deputy Chief of Police Campbell was called and stated off-duty police officers could provide security with departmental permission. However, Officers Gualillo and Smith mentioned in the memo had not been given permission to do so. When asked about a liquor license, Deputy Chief Campbell stated he believed a license would be required if any type of remuneration occurred and it was pointed out that even a bottle club needs a license. Detective Dale Hatfield reported he had run surveillance on the premises and on several occasions observed between 50 - 100 people in attendance. It was pointed out that on week nights 10 - 20 people were usually in attendance and on weekends 50+people would be on the premises. It was also reported the police had been called on three occasions: for an aggravated battery, a fight at the house and a gun pointed at someone in the street out in front of the building. Detective Hatfield also recounted the incident when the person refused to pay the nightly fee and the bouncer from Poppa Joe's was called. It was further stated that for safety reasons, he believed the"club" needed to be closed down. Attorney Jeter asked if the incidents occurred in the street, outside of the building and Detective Hatfield stated yes. Prosecuting Attorney Green then called Assistant Fire Chief Claude Mayo who stated the building was cited for violation of the Life Safety Code, which has been adopted by the City, because the premises was being used as an"assembly" and the social events described by Mr. Eiras were considered an assembly. A"Cease and Desist" order was placed on the building by the Fire Department for this violation. `. Building Official Ford and Community Development Director Worley both testified as to what tar Minutes Page -6- June 10, 1997 Code Enforcement Board they observed in the house and the work performed without permits. Mr. Worley read the permitted uses for the RG-2 zone and stated what was going on was not a permitted use, and required a use-by-exception. Much discussion ensued concerning the following: the type of furniture observed in the building, including the lack of a bed, why a person would have a dress code and hours of operation posted in his residence, if fundraisers could be conducted in your home, what constituted a not-for- profit organization, and the procedure used for obtaining a use-by-exception to operate a commercial business in a residential zone. Attorney Jeter called the following people to testify on Mr. Eiras' behalf: Craig Evans of 611 Ponte Vedra Lakes Boulevard who acts as the volunteer Membership Director and grievance handler for ACES read the membership rules; and Misty Synard of 224 Margaret Street, a member of ACES who also has been affiliated with the Cummer Art Museum for five years, gave testimony to the existence of a bed on the third floor and the fact no art was bought or sold on the premises. A letter from Chip Haddock who lives at 84 Ocean Boulevard and has no problem with ACES operating at 86 Ocean Boulevard was read. Prosecuting Attorney Green stated common sense should prevail when considering the information presented. In closing, Mrs. Green then recounted the code violations as follows: (1) Chapter 18, Section 2 is being violated because soliciting is taking place, not door-to-door, but in the manner of you come to my house and I will let you in if you pay a fee/make a contribution to ACES, (2)Chapter 20, Section 52 is being violated because a fee to get in is being charged and alcohol is being served, (3)Chapter 24, 107 is being violated because"Residential" is defined by use and 86 Ocean Boulevard is not being used as a residence, (3)the property is a nuisance due to the parking problems caused by its use (Chapter 24, Section 161), the fights, the trespassing on Mrs. Tucker's property, and(4)the"Cease and Desist" order placed on the property by the Fire Marshall for violation of the Life Safety Code of the City. Prosecuting Attorney Green then asked that the Board keep the operation shut down until it is properly permitted and fine Mr. Eiras$250.00 per day for everyday it operates without the proper licenses and permits. In closing, Mr. Jeter again referenced the Haddock letter, and then stated the property was used as"extreme residential," whereby Mr. Eiras made the property available to ACES or his friends on a regular basis. He further stated there was no written definition of"residential" in the City Code and proceeded to read the definition of"commercial" found in Black's Law Dictionary, after which he pointed out that Mr. Eiras could not be operating a commercial business in a residential district because he made no money. Case law was also cited indicating that an ordinance must be clear, definite and certain and Mr. Jeter stated the ordinance defining "residential" and"commercial" contained gray areas. He also pointed out that all incidents Minutes Page -7- June 10, 1997 Code Enforcement Board involving the Police Department took place in the street in front of 86 Ocean Boulevard, and Mr. Eiras could not be held responsible for what occurred on the street. Board Member Dowling stated according to information presented, Mr. Eiras was a Corporate Officer of ACES and therefore, had some responsibility for ACES activities. Much discussion ensued concerning soliciting. Mr. Rogosheske indicated that the method of operation at the location was not the normal type of a fundraiser, in that someone was at the door, you paid your money and went into the house. If you refused to pay, you were not allowed entrance. It was pointed out that this went on five days a week and constituted soliciting because finds were being raised. A motion was made by Board Member Dowling, seconded by Board Member Rogosheske and unanimously carried to find Mr. Eiras in violation of Chapter 18, Section 2, Failure to Register for the Purpose of Soliciting. Under discussion, based on the testimony given by Chief Campbell and Detective Hatfield and the memo from Public Safety Director Thompson, it was determined a liquor license was needed. �r A motion was made by Board Member Dowling, seconded by Board Member Rogosheske and unanimously carried to find Mr. Eiras in violation of Chapter 20, Section 52, Operating Without Proper Licensing. Chairman Martin commented that according to the evidence given, he believed Mr. Eiras was operating a commercial business in a residential zone. Chairman Martin further commented that it was not a residential use when hours and a dress code were posted, a"Ladies Only" sign was posted on a bathroom door, all doors, except for bathroom doors had been removed, membership cards were required, and there was only one bed on the premises. A motion was made by Board Member Dowling, seconded by Board Member Rogosheske and unanimously carried to find Mr. Eiras in violation of Chapter 24, Section 107, Commercial Business in a Residential District and No Use-by-Exception. A brief discussion of the parking problems resulting from the commercial use ensued. A motion was made Chairman Martin, seconded by Board Member Deitchman and unanimously carried to find Mr. Eiras in violation of Chapter 24, Section 161, Insufficient Parking for Present Use. Much discussion ensued concerning the property being a public nuisance. Board Member LL Minutes Page -8- June 10, 1997 Code Enforcement Board Rogosheske commented if all of the other ordinances were obeyed, the nuisance would go away. A motion was made by Board Member Rogosheske, seconded by Board Member Deitchman and unanimously carried to find Mr. Eiras in violation of Florida Statute 823.05, Places Declared a Public Nuisance. Attorney Jeter objected to this motion on grounds previously stated. A motion was made by Board Member Dowling, seconded by Board Member Rogosheske and unanimously carried to find Mr. Eiras in violation of the Florida Accessibility Code, the Life Safety Code and the Standard Building Code. It was then discussed the business could not be reopened under the Cease and Desist Order posted by the Fire Department, and if reopened without the proper licenses and permits obtained to take care of the deficiencies noted in the charges, a fine of$250.00 per day would be assessed. A motion was made by Chairman Martin, seconded by Board Member Dowling and �r unanimously carried to fine Mr. Eiras $250.00 per day if the business is reopened without proper licenses and permits beginning the day it is reopened and continuing every day of operation until compliance is reached to the satisfaction of the Code Enforcement Officer. Discussion continued and Board Member Dowling stated he believed Mr. Eiras should not be fined because he felt he did not knowingly break the law and would cooperate with the City. Charges for administrative costs were also discussed and it was thought the costs would range between $1,500.00 - $2,000.00. Attorney Jeter asked the Board to consider waiving the administrative costs. Board Member Mann stated he believed the Mr. Eiras acted in good faith and they should be waived A motion was made by Board Member Dowling, seconded by Board Member Deitchman and carried by a six to one vote with Board Member Mann voting nay, to charge Mr. Eiras administrative costs at a rate of 50% of the verified costs with a limit set at $1,000.00. 5. REQUEST FOR LIEN ACTION: Name Address Amount of Lien Minutes Page -9- Alay June 10, 1997 Code Enforcement Board None. 6. BOARD MEMBER COMMENTS: There were no comments 7. ADJOURNMENT There being no further discussion or business to come before the Board, the meeting adjourned at 11:20 PM. -4 P G.E. Martin, Chairma_ Code Enforcement Board Attest: CP Ylu. &nice- lie M. Brandt, Secretary _ ATTACHMENT A _ CODE ENFORCEMENT BOARD JUNE 10, 1997 MEMO To: Code Enforcement From: David E. Thompson Subject: 86 Ocean Blvd Date: June 2, 1997 On Friday, May 23, 1997, I was paged by Ms. Leslie Finadinos. She said that she was more or less the spokesperson for the"club"at 86 Ocean Blvd. She said that she had heard alGsorts of rumors about the club, and she was the contact person to dispel rumors and provide the real picture about the activities there. She said that the property was being used as a"private club," and that is was a gathering place for private members. She said that there were membership fees, and that once someone joined,they had access to the club. Part of this access included the consumption of alcoholic beverages on premises. She assured that the membership fees did not go toward the purchase of alcoholic beverages..."the membership fees go toward the art"... "the food and alcohol is donated." I asked if they had any licensing to sell or provide alcohol, and she said that they did not need one because it was a private club. I also asked about zoning with the city, and she said that"C.J."had talked to city zoning officials about it. C.J. said that since they were not-for-profit,they were not commercial and it wouldn't be a problem. She could not tell me who C.J. talked to, but I advised her that the zoning would not allow for such a club. I told her that such a private club was not allowed in an area zoned as residential. She said that it was a private club and non-profit, but I advised her that it was not allowed. I told her that someone from her organization needed to see George Worley and address this problem. Ms. Finadinos said that the owners were C.J. and Adam, and she was sure that they had covered the bases as far as zoning and legality. She said that the only thing for sale at the club was artwork that was on the walls. The memberships were to support local artists, and they were looking to fill about 200 memberships. She said that Vic Gualillo and Dane Smith had visited the club, and there was an ATF agent that they had coming in to keep an eye on activity to make sure people were not doing illegal things. I told Ms. Finadinos that when they operate such a business without the knowledge of the City, and when they restrict membership and access to the place, and they serve alcoholic beverages, then they can expect people to wonder about the legality of their activities. I told her that she needed to talk with city officials relative to the zoning and the activities to prevent further problems. She invited officers(including me)to visit the club (in plain clothes) and ask for her. She assured that she would be glad to show us around the facility. ATTACHMENT B CODE ENFORCEMENT BOARD JUNE 10, 1997 Olate night Membership Dues lery & Gallery Fees ne' ( 9 0 4 ) 221 - 6900 Membership Type Term Cost Private Monthly $ 41111 IcC.GO Quarterly 120.00 V.I.P. Monthly 75.00 Quarterly 175.00 Couple _Monthly 80.00 Quarterly 190.00 V.I.P. Couple Monthly 120.00 Quarterly 250.00 The above pricing reflects Limited Charter Memberships (the first 200 members). All other membership types (ie: Corporate, Artistic, Associate) must be handled by a committee member and quoted as a custom membership pack- age. Prices for non-charter membership are subject to increase after January 1, 1997. Gallery Fees Members $10.00 Guests of Member $20.00 NOTE: Special Event fees and Guest fees may be higher. PAID Accepted by . . Memberteb Menthe' Sign4p Form Name Address City,State Phones) Are you in any way associated with Law Enforcement? ❑ Yes ❑ No If yes, please explain: The Undersigned holder of this membership application acknowledges that he/she will be attending at their own risk and here- by unconditionally agrees to hold harmless, indemnify and release the property owner, hosts, members, sponcers, agents, and all others associated with the Artisitc & Cultural Enlightenment Society from and against all liability for any reason what- s ever reguardless of accident or negligence. Membership is subject to approval All members subject to the rules and s of the Artistic & Cultural Enlightenment Society Acceptance of payment does not denote membership acceptance, and 1 membership is denied for whatever reason, all monies shall be returned in a timely fashion. This application must be signed and completed for processing to begin. Make payments payable to: A.C.E.S. or Artistic & Cultural Enlightenment Society. Signature: (hinted Name: Dale: