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3-11-14 Minutes.pdfCITY OF ATLANTIC BEACH CODE ENFORCEMENT BOARD MINUTES 6:00 P.M. — March 11, 2014 IN ATTENDANCE: Veda Harless, Chair Ian Luthringer, Vice Chair John Stinson Benjamin de Luna Louis Keith (arrived at 6:14 p.m.) Richard Lombardi, Alternate ABSENT: Juliette Hagist (Excused) Meade Coplan (Excused) Richard Komando, City Attorney Deborah White, Code Enforcement Officer Dayna Williams, Secretary Chair Veda Harless called the meeting to order at 6:04 p.m., followed by the Pledge of Allegiance to the Flag. Chair Harless introduced Rich Komando, the City Attorney, and invited him to speak to the Board. Mr. Komando stated he was happy to be here and to please let him know if there is anything he can do to help the Board during the meeting, as well as any time in between. Chair Harless stated our regular Board member, Juliette Hagist, has sold her home and is no longer a resident of Atlantic Beach, so she has stepped down. Ms. Harless stated we have a Board member, Louis Keith, who may arrive late and asked if he is not present at 6:00 p.m. is he able to come back up in the interim, after we have voted on something else. City Attorney Rich Komando stated if the Board is mid -process he should listen to everything before a vote is taken, and after a vote is taken he may join you. Secretary Dayna Williams read the roll, finding a quorum was present. 1. Approval of Minutes Motion: Approve the minutes of the Code Enforcement Meeting of January 14, 2014. Moved by de Luna, Seconded by Stinson The motion was approved unanimously. 2. Administration of Oath to Defendants/Witnesses Chair Veda Harless gave the oath to the defendants and witnesses. Item 4F was taken out of sequence and acted on at this time. 4F. 2022 Lakeview Court, Ruth E Sparks, Et Al, Case #14-928: violation of Atlantic Beach City Code, Sec. 24-163 (b) Occupancy of a travel trailer. Code Enforcement Officer Debbie White presented the case, stating the Notice of Violation was sent on 1/21/14 and received/signed for on 2/2/14, stating the violation is Section 24-163 (3) Recreational vehicles, travel trailers or motor homes shall not be inhabited or occupied, either temporarily or permanently while parked or stored in any area except in a trailer park designated for such use as authorized with this chapter. Ownership of the property was determined by the tax records for Duval County; her inspection was prompted by a complaint; proper notice was achieved by certified mail in accordance with F.S. 162; and she has spoken with someone in control of the property, Mr. Ed Sparks, Ms. Sparks' son. Ms. White presented photos of the property stating Ms. Sparks has a son who likes to stay in the trailer. Mr. Lombardi asked if the violation was for the storage of the trailer, or because it is inhabited. Ms. White stated because it is inhabited. Staff recommends the Board find the property owner in violation and orders that compliance be achieved by ceasing any and all occupancy of the travel trailer immediately or a fine of $100.00 be imposed for the first day and $100.00 for every day thereafter the violation continues to exist. In addition, any fine shall also include the administrative costs to the City incurred in prosecuting this case. The property owner is responsible for contacting the City Code Enforcement Officer and obtaining an inspection of compliance. Ms. White stated Ms. Sparks has been trying to sell the trailer, but has yet to find a buyer. Ms. White stated the Sparks were present and would like to address the Board. Ms. Sparks came to the podium and explained she has a son who is mentally ill and believes the trailer is his home. Ms. Sparks stated she has tried to get her son to move in the house, but he will not do what she has asked him to do. Ms. Harless asked the witness if she locked the trailer, and the witness stated they were going to sell it, but her son will go in a rage when they do. Mr. Ed Sparks came to the podium and explained they are attempting to sell the trailer and there will be room for his brother in the house because his other brother will be moving out. Mr. Sparks stated his brother is fine with moving into the house. He stated the problem is that as long as the trailer is still on the property his brother will continue to use it. Mr. Sparks stated until the trailer is gone, they are going to have a difficult time getting his brother to comply. Mr. Sparks stated they were asking for a little more time. Ms. Harless asked the witness when the other brother would be moving out and the witness stated within the next 30 days. Mr. Luthringer asked the witness how much time are they requesting and Mr. Sparks stated between 30 and 90 days. Discussion ensued. Motion: The Board adopts the staff recommendation, except that instead of compliance being obtained immediately, the property owner be afforded 30 days to come into compliance. Moved by Luthringer, Seconded by Stinson Mr. de Luna asked the witness if 30 days would be enough time, and Mr. Sparks stated they were hoping for a little more time. Mr. de Luna asked if 60 days would be better, and the witness stated yes. Mr. Luthringer withdrew his motion. Motion: The Board adopts the staff recommendation, except that compliance need not be obtained immediately, but must be obtained within 60 days, May 11, 2014. Moved by Luthringer, Seconded by de Luna The motion was approved unanimously. 3. Old Business Minutes of the Code Enforcement Board on March 11, 2014 Page 2 of 7 A. Thomas Davie, Request for Rehearing: 872 Bonita Road, Thomas Davie, Case #09-238 and Case #09-239: violation of International Property Maintenance Code, Sec. 304.2 Protective treatment. Code Enforcement Officer Debbie White presented the case, stating this is a rehearing request by Mr. Thomas on the accrued fine. Ms. White stated this case was originally started by Code Enforcement Officers Alex Sherrer, Eddie Lopez and Kathy Stiles. Ms. White stated the only interaction she has had is to find Mr. Thomas in compliance. Ms. White stated a Notice of Violation was sent on 11/19/09 and the property was posted on 2/11/10; ownership was determined by the tax records for Duval County; the inspection, based on the paperwork, was prompted by a complaint; proper notice was achieved in accordance with F.S. 162 by posting of the property and she has spoken with someone in control of the property, Mr. Thomas and Frank Tassone. Ms. White stated she provided the Board with a breakdown of the current fines accrued, stating the total fine is $132,129.35. Ms. White stated liens were placed on the property and she has recently started sending out notices on old and new code enforcement fines. She stated Mr. Thomas is now in compliance, so the fine has stopped. She stated she sent Mr. Thomas a notice and he came to speak with her and she explained the process for him to appeal the fine. Ms. White stated she has provided the Board with Exhibits A-1 and A-2, outlining a background chronology of the case based on the information she had in the file. She stated Exhibit B is the Affidavit of Compliance she sent to Mr. Thomas dated 11/14/13. She stated Exhibit C is a copy of the letter from Mr. Thomas requesting the rehearing. She stated Mr. Thomas is present and would like to address the Board. Discussion ensued regarding the case history and background information Ms. White provided to the Board. Staff recommends the Board find the property owner in compliance and orders the accrued fine be reduced to $250.00 with the condition the fine be paid in full on or before June 30, 2014. If the fine is not paid in full by June 30, 2014 the original fine will be reinstated. The witness came to the podium stating his name and address, Davie Thomas, 872 Bonita Road, and provided his testimony. Discussion ensued regarding the case history. Motion: The Board adopts the staff recommendation. Moved by Luthringer, Seconded by Keith City Attorney, Rich Komando, provided some legal background, stating Florida Statute clearly outlines what the notice of requirements are in any type of code enforcement violation. Mr. Komando stated, being that Ms. White has taken over the file from someone else, we have to rely upon the work that was completed by the employees prior to her. He stated, when you look at Section 162.12, which is the Florida Statute referencing notice, Sub -Section (1)(a) requires certified mail, which was done. However, he stated, the last part of that Section says that if the certified mail is not picked up within 30 days, we have to resort to what is referred to as alternate service. Mr. Komando stated, under alternate service there needs to be a posting in two places. He stated posting has to be at the property and at City Hall and following the posting of both properties an affidavit needs to be completed. He stated the affidavit needs to indicate that posting occurred at both places. Mr. Komando stated his quick review of the file identifies that posting did take place at the residence but there is no indication that posting took place at City Hall. Mr. Komando stated it may have occurred, however, he wants to caution the Board we are not in a legally defensible position in regards to this lien. Minutes of the Code Enforcement Board on March 11, 2014 Page 3 of 7 Ms. Harless stated Ms. White has come in and is making great strides to streamline our notices, to follow up what has happened, and going forward, make sure we do not have these scenarios where we have hearings for reductions in fines. Ms. Harless stated she errs on the side of Ms. White because she is there doing the work, she respects her opinion and will go with her recommendations 99% of the time. Ms. Harless stated, in this instance she goes with Ms. White's recommendation of the $250.00 fine. Mr. de Luna thanked Mr. Komando for the information and stated we needed to have that before our discussion. Mr. de Luna stated he would appreciate next time we get that information before the discussion. Mr. de Luna stated it may be the City is not entitled to anything and the fine becomes zero instead of $250.00. Mr. Stinson concurred, stating it is not defensible at $250.00 or $1,000.00 or $125,000.00. Discussion ensued. Mr. de Luna stated our authority and jurisdiction is not to do settlements; our jurisdiction is to find a violation and assess a fine. Mr. de Luna stated we do not have proof the procedures in the law have been followed, therefore he would recommend we go to zero. Ms. Harless stated she disagreed because the $250.00 fine is going to cover the lengthy administrative costs. Ms. Harless asked the witness if he was comfortable with the $250.00 fine to be paid in full by June 30, 2014, and the witness stated yes. Ms. Harless stated she felt that is a happy medium. Votes: Aye: - Luthringer, Harless, Lombardi Nay: - de Luna, Stinson, Keith Motion Failed Motion: The Board moves the staff recommendation be supported to the extent that there was a violation, but there cannot be a fine. The fine is zero. Moved by de Luna, Seconded by Stinson Votes: Aye: - Harless, Lombardi, de Luna, Stinson, Keith Nay: - Luthringer Motion Passed Ms. Harless stated her appreciation to Ms. White for bringing to task, tying up loose ends, and being a lot more efficient and in compliance with whatever statutes and protocols need to happen. Mr. de Luna stated we have an outstanding officer in Ms. White, adding, she is just out of this world. 4. New Business A. 469 Atlantic Boulevard, Diamond Real Estate Properties, Case #13-712: violation of Atlantic Beach City Code, Sec. 20-52 Levy. Ms. White stated she is withdrawing the case, as the Fire Department red -flagged this location and it is not an issue at this point. B. 1830 Mayport Road, Ossi Klotz LLC, Case #13-793: violation of Atlantic Beach City Code, Sec. 20-52 Levy. Ms. White presented the case, stating the Notice of Violation was sent on 10/28/13 and received/signed for on 10/30/13; the violation is Chapter 20 Business Tax Receipts. Ms. White Minutes of the Code Enforcement Board on March 11, 2014 Page 4 of 7 stated, to refresh the Board's memory, this case was brought before them at the last Code Enforcement Meeting and there was some discussion about notices being sent to the property owner. She stated Mr. Komando will address the issue for the Board. Ms. White stated ownership was determined by the tax records for Duval County; her inspection was prompted by a routine survey; proper notice was achieved by certified mail in accordance with F.S. 162; and she has spoken with someone in control of the property, the property manager, Mark Farrell, Carol with Ossi Klotz and Lacey, the tenant and operator of Touch of Class Auto Detail. Staff recommends the Board find the property owner in violation and orders that compliance be achieved by obtaining an Atlantic Beach Business Tax receipt or cease business at this location by 3/31/14, or a fine of $100.00 be imposed for the first day and $100.00 for every day thereafter the violation continues to exist. In addition, any fine shall also include the administrative costs to the City incurred in prosecuting this case. The property owner is responsible for contacting the City Code Enforcement Officer and obtaining an inspection of compliance. Ms. White presented photos of the property and discussion ensued. Ms. White reiterated that Mr. Komando was present to address the issue with citing the property owner for business tax receipts. Mr. de Luna stated he would like to hear from the attorney regarding this issue. Mr. Komando stated, generally, the practice is that code enforcement violations go against the property because someone who is a tenant or renting generally does not have anything to attach to. Mr. Komando stated many property owners, when they lease property, have provisions in their lease agreements. He stated the most common one is if somebody commits a criminal act, which is a basis to consider a violation of lease and something that someone can be evicted for. Mr. Komando stated a business tax or complying with local laws and regulations are consistent with that concept, where it is up to the property owner to ensure that people in their property are not committing any rule violations or crimes. He stated that is the basis for why we seek some kind of remedy from the property owner as opposed to the actual person who is within the property. Mr. de Luna stated the Statute does not say what Mr. Komando just said. Mr. de Luna stated the Statute is pretty clear and asked if Mr. Komando had a case law to support what he just said. Mr. Komando stated he has not done the research on that yet, and Mr. de Luna said he felt it was important that we get an answer to that, as we will have more of these come up. Mr. de Luna stated he could not come to the same conclusion and read part of Section 20-52(1); "Any person who maintains a permanent business location". He further stated the owner is not in the business of whatever this is, they are in the business of renting the property. Mr. de Luna stated there has to be another Statute to bring the property owner in secondary liability, maybe, but this Statute does not do it for him. Mr. Komando asked Mr. de Luna if he was referring to the Code Ordinance Chapter 20, so they were clear on what he was asking (Mr. Komando) to research for him, and Mr. de Luna stated correct. Mr. Komando stated he believed it was indicated under Chapter 162 in the enforcement procedures for code enforcement, but he would get the answer. Mr. de Luna stated that was the notice procedure. Mr. Komando stated sub -section (1) (2) is the notice procedure; the whole chapter provides the outline for enforcement and how the process is to take place for pre - violation, the first hearing and the second hearing, as well as imposing a lien against the property. Mr. de Luna said okay and he guesses you have to tie that in with the chapter we are asserting. Mr. Komando stated we do, adding, even though we pass local code ordinances we are still required to adhere to the Florida Statutes. Mr. de Luna stated yes, for enforcement purposes, but we still have to get that there is a violation of the code of our ordinances. Mr. Luthringer stated under Chapter 20-52, we know there is a violation, we just want to see something that attaches this violation to the property, so then it becomes the liability of the Minutes of the Code Enforcement Board on March 11, 2014 Page 5 of 7 owner of the property. Mr. de Luna stated correct, and Mr. Komando stated he would find an answer to that. Mr. de Luna stated that is what he is struggling with. Discussion continued. Mr. Luthringer stated since Mr. Komando is researching the issue, could we defer this to the end of the meeting and Ms. White said yes. C. 1101 Violet Street, HSBC Bank USA NA, Case #13-898: violation of International Property Maintenance Code, Sec. 304.4 Structural members and Sec. 304.7 Roofs and drainage. Ms. White presented the case, stating the Notice of Violation was sent on 12/17/13 and received/signed for on 12/21/13; the violations are of International Property Maintenance Code, Section 304.4 Structural members and Section 304.7 Roofs and drainage; ownership was determined by the tax records; her inspection was prompted by a complaint; proper notice was achieved by certified mail in accordance with F.S. 162; and she has not spoken with someone in control of the property. Ms. White stated this property was one of the properties that belonged to Mr. Thomas Bennett, but the bank has title to the property now. Ms. White presented photos of the property stating there are rotten posts and the roof is in extremely bad shape. Staff recommends the Board find the property owner in violation and orders that permits be obtained by a Florida licensed roofing and building contractor to replace the roof and repair the eaves, soffit, posts and complete all work and obtain a final inspection and full compliance by 4/30/14, or a fine of $150.00 be imposed for the first day and $150.00 for every day thereafter the violation continues to exist. In addition, any fine shall also include the administrative costs to the City incurred in prosecuting this case. The property owner is responsible for contacting the City Code Enforcement Officer and obtaining an inspection of compliance. Motion: The Board adopts the staff recommendation. Moved by Luthringer, Seconded by de Luna The motion was approved unanimously. D. 51 Forrestal Circle, Robert L & Mary E Chambliss, Case #13-904: violation of Atlantic Beach City Code, Sec. 24-157 Fences, walls and similar structures. Ms. White stated she is withdrawing the case, as they are in compliance. E. 907 Stocks Street, Linda A Giachetto, Case #13-907: violation of International Property Maintenance Code, Sec. 302.8 Motor vehicles. Ms. White stated she is withdrawing the case, as there was no service. F. 2022 Lakeview Court, Ruth E Sparks, Et Al, Case #14-928: violation of Atlantic Beach City Code, Sec. 24-163 (b) Occupancy of a travel trailer. This item was taken out of sequence and acted on earlier in the meeting. Mr. Luthringer asked Mr. Komando if he had an answer on the research question. Mr. Komando stated when reviewing Chapter 162 there are a number of areas where it refers to the owner. He stated, in fact it makes special provisions as to if an owner tries to transfer the property, the obligation falls to the purchaser of the property. Mr. Komando stated every indication in the Chapter supports the violation would be against the property owner, and that is found under Chapter 162.06, which is the enforcement procedure. He continued, stating the provision he is referring to is Sub -Section (5) (a) through (d). Mr. Komando stated separate from that provision, Minutes of the Code Enforcement Board on March 11, 2014 Page 6 of 7 there is also a case out of the Third District Court of Appeals, which is South Florida; where Monroe County vs. Sandra Carter also finds their enforcement ability refers to a landlord and a tenant; and in that case the landlord was responsible for the tenant's actions. Mr. de Luna stated he would like to see Mr. Komando do a little more in-depth research in terms of the business tax. Discussion ensued. Ms. Harless asked Mr. de Luna if he felt comfortable voting tonight on this case. Mr. Luthringer stated he believed we would need to have a motion and vote and Mr. de Luna could either agree or disagree. Ms. Harless concurred and stated let's move forward, and asked Mr. Komando to continue to research the issue and Mr. Komando stated he would. Motion: The Board adopts the staff recommendation. Moved by Luthringer, Seconded by Lombardi Discussion ensued. The motion was approved unanimously. 5. Miscellaneous Business None. 6. Adjournment There being no further discussion, the meeting adjourned at 7:55 p.m. Dayna . Williams, Secretary Veda Harless, Chair Minutes of the Code Enforcement Board on March 11, 2014 Page 7 of 7