04-29-97 CEB Meeting MinutesCITY OF ATLANTIC BEACH
CODE ENFORCEMENT BOARD MINUTES
APRIL, 29, 1997
Call to order: PRESENT: Edward Martin, Chairman
Ken Rogosheske
Theo Mitchelson
Lou Etta Waters
Richard S. Mann
Tammy Deitchman
ABSENT: Heywood (Pete) Dowling
AND: Suzanne Green, Prosecuting Attorney
Alan C. Jensen, City Attorney
Karl Grunwald, 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. Board Member Dowling asked permission to be excused
due to a family emergency and left the meeting at 7:35 p.m.
Chairman Martin congratulated Code Enforcement Officer Grunewald on attaining a State of
Florida Level III Certification in Code Enforcement.
1. Approval of Minutes of March 4, 1997
The minutes of the Regular Code Enforcement Board Meeting of March 4, 1997 were
approved as presented.
2. Recognition of Visitors and Guests regarding any matters that are not listed on the
agenda.
No one wished to speak.
3. OLD BUSINESS:
Case No. 97 -5532 -Pulte Home Corporation/North Florida Classic Homes -West 5th Street.
The owner of the property is in violation of Chapter 23, Section 23-17 Code of the City of
Atlantic Beach in that there exists on the premises located at West 5th Street the following
condition(s): trees were removed from the property not authorized for removal by the Tree
Conservation Board - clear cut the property.
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Code Enforcement Board
April 29, 1997
Code Enforcement Officer Grunewald reported during the January 28, 1997 Special called
meeting, the Code Enforcement Board imposed a $5,000.00 fine on Pulte Home Corporation
which was paid, and during the March 4, 1997 Code Enforcement Board Meeting, Pulte Homes
offered to plant trees in Section H, as recommended by the Tree Board, and were in negotiations
at that time. Mr. Grunwald passed around a letter from Pulte Home asking that the Tree Board
postpone any action on mitigation until the June Tree Board Meeting to allow Pulte Homes the
extended time to establish the integrity of their intentions.
Case No. 97 -5489 -Gordon Ogburn, 440 Ocean Boulevard. The owner of the property is in
violation of Chapter 24, Section 157 and Chapter 24, Section 24-65-(c) Code of the City of
Atlantic Beach in that there exists on the premises located at 440 Ocean Boulevard the following
condition(s): a fence over sig feet prohibited and permit required i.e., the fence is over six
feet tall and no permit for installation is on file.
To update the Board, Code Enforcement Officer Grunewald reported that during the March 4,
1997 Code Enforcement Board Meeting, the Board found Mr. Ogburn in violation of Chapter 24,
Sections 157 and 65-(c) of the Code of the City of Atlantic Beach and assessed him an amount of
$100.00 for the city's administrative expenses involved in processing the case. It was further
reported that Mr. Ogburn paid the $100.00.
Case No. 96-4629 - Willie Knight - 790 Sailfish Drive. The owner of the property is in
violation of the Standard Plumbing Code Sections 601.2 and 604.3 and Chapter 22, Sections 22-
41 and 22-29, Failure to Pay Past Due Bill of the Code of the City of Atlantic Beach in that there
exists on the premises located at 790 Sailfish Drive the following condition(s): failure to be
connected to an approved water system and failure to pay past due water bills.
To recap the Knight Case, Code Enforcement Officer Grunewald reported that during the July 2,
1996 Code Enforcement Board Meeting, Mr. Knight was found to be a repeat offender in
violation of the Standard Plumbing Code and Chapter 22, Sections 22-41 and 22-29 of the Code
of the City of Atlantic Beach. The Board imposed a one time $500.00 fine on Mr. Knight for
said violations and had the water meter serving the property removed as of July 3, 1996, to
eliminate the possibility of a cross -connection.
It was reported the property has been cleaned up and properly connected to the city's water
system, and was in the process of being sold. The title company handling the property is aware of
the $500.00 fine.
4. NEW BUSINESS:
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In reference to case No. 97-5603, Chairman Martin stated the duty of the Code Enforcement
Board, as a quasi-judicial body, was to determine if a violation of the city code exists and not to
establish ownership of property, which is outside the jurisdiction of the board.
Case No.97-5603-Sill Williams, President, Beaches Aquatic Pool, Inc., 297 Aquatic Drive.
The owner of the property is in violation of Chapter 12, Section 12-01-03 and Section 12-01-04
Code of the City of Atlantic Beach in that there exists on the premises located at 297 Aquatic
Drive a/k/a Tract 3, Aquatic Gardens, the following condition(s): trash and rubbish floating on
the water and in the vegetation on the pond, i.e., an accumulation of paper, plastic bottles
and similar items floating in the pond.
Chairman Martin read the case procedures and all witnesses in the case were sworn in.
Prosecuting Attorney Green read the charges against Beaches Aquatic Pool, Inc. and stated that
Mr. Grunwald would testify before the Board concerning the long history of the property and
that he would present a second violation citing the President of Beaches Aquatic Pool, Inc. for
trash and rubbish floating on the pond and as to the date the occurrence took place.
Code Enforcement Officer Grunewald stated that during the November 12, 1996 Code
Enforcement Board Meeting, Bill Williams, the registered agent for Beaches Aquatic Pool, Inc.,
was found to be in violation of Chapter 12, Section 12-01-03 of the Code of the City of Atlantic
Beach. At that time no fine was levied against the property because it was brought into
compliance. However, the Board determined if it was found to be in non-compliance of Section
12-01-03 in the future, a fine may be levied from the day the property is found to be in non-
compliance, which was January 30, 1997.
After the update, photos taken April 2, 1997, of the subject property were passed out showing
the floating debris and pond vegetation. Mr. Grunewald stated Mr. Williams was served notice
of the violation on February 17, 1997, which was signed for by his wife, June Williams. It was
further reported as of today's date, the pond was in much the same condition as depicted in the
photos. Mr. Grunewald stated he had contacted the St. Johns County River Water Management
District concerning the pond vegetation and was told it was a natural occurance and posed no
health problem, and the property owner would have to decide to remove it or not.
Code Enforcement Officer Grunewald further reported the property owner was responsible for
the upkeep of his property, regardless the source of the trash and debris and regardless the fact
the property is a pond. In its present condition, Mr. Grunewald indicated the property posed a
health hazard to those who live adjacent to the pond.
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Chairman Martin inquired as to the date of the pictures and the present condition of the pond.
Code Enforcement Official Grunwald stated the pond was in the same condition as shown in the
pictures except that some of the vegetation had disappeared.
Theo Mitchelson inquired as to the ownership of the property in question and was informed by
Chairman Martin the owner according to the tax records was Beaches Aquatic Pool, Inc.,
represented by Bill Williams. Code Enforcement Officer Grunewald pointed out ownership of
the property was clarified by City Attorney Jensen in his letter dated March 14, 1997, which is
attached and made part of this official record as Attachment A.
Mr. Mitchelson then inquired if any decision had been made by the City Commission to assume
responsibility for maintenance of the pond and was told it had no assumed any responsibility for
the maintenance. At this point, Chairman Martin reiterated the Board was not meeting to
determine ownership of the property.
Alan W. Potter of 374 Second Street, Vice -President of Beaches Aquatic Pool, Inc., spoke on
behalf of Beaches Aquatic Pool. Mr. Potter read a prepared statement concerning his proposed
testimony in response to: the letter of notice dated 1-30-97, the subpoena dated 3-24-97 and letter
of notice and order dated 3-24-97 and steps to be taken should the decision by the Board be
appealed.
Chairman Martin stated that Mr. Potter could present evidence as long as it dealt with the
violation, not with ownership of the property. However, Mr. Potter then stated he may make
reference of necessity to certain items concerning the dedication of the pond to create a record for
appeal should it become necessary. Chairman Martin stated this would be acceptable as long as it
was relevant to the subject at hand.
Mr. Potter continued by stating Beaches Aquatic Pool, Inc. does not deny they own the land
under the pond and contend based upon the law of the public record that the city owns an
easement over the land and the enjoyment of that easement has caused the dispute.
Continuing, Mr. Potter stated that he wanted the record to reflect this information because
Florida Statutes state the entire case must be presented before the Code Enforcement Board, not
a circuit judge, who will only review on appeal.
Chairman Martin responded to Mr. Potter and stated the Board would decide if a violation of
Chapter 12 Sections 12-1-4 and 12-1-3 exists and nothing else. .
Mr. Potter responded that the question was who did the violation - Beaches Aquatic Pool or the
City of Atlantic Beach? Chairman Martin replied the only person the Board could look to is the
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April 29, 1997
owner of record. If the property is found to be in violation, then the owner of record, which in
this case is Beaches Aquatic Pool, Inc., will be cited. It was pointed out the issue was not who
committed the violation.
Mr. Potter then replied that he wished to establish whose water is on the pond and whose water is
holding the trash. --
Chairman Martin then stated he was not interested in whose water was on the pond. He further
stated the legal owner of the pond is Beaches Aquatic Pool, Inc. and advised Mr Potter he could
establish all the case he wanted on whether or not there is a violation of the code, but the Board
will not allow him to establish a record for something beyond its jurisdiction.
Mr. Potter then stated he would skip that portion of the presentation but wished to enter his entire
presentation into the record for purposes of appeal, if necessary.
Chairman Martin then asked for a legal opinion on this request. Prosecuting Attorney Green
stated for the purposes of an evidentiary matter, the city would object to the admission of his
statement on relevancy grounds for the purpose of this hearing. The Board was advised they
could accept the statement and admit it into the record, but there will be an objection to anything
presented which is not relevant.
Mr. Potter then stated that Beaches Aquatic Pool, Inc. believes the allegations of Mr. Karl
Grunewald, Code Enforcement Officer for the City of Atlantic Beach, improperly identified
Beaches Aquatic Pool, Inc. for the alleged violations. Information was reviewed for relevancy by
Prosecuting Attorney Green and then given to the Board by Mr. Potter. All information
presented by Mr. Potter is attached and made part of this official record as Attachment A.
Mr. Potter stated the organization was not in violation of Section 12-1b(4) because the water in
the retention pond is not stagnant, there are no mosquito larvae and the waters are home to fish
and other wildlife. Mr. Potter also stated the organization was not in violation of Section 12-
1B(3) because the retention pond receives stormwater flow containing garbage and debris from
all areas in Aquatic Gardens Subdivision. Mr. Potter also pointed out other sources of debris and
garbage that end up in the pond and stated the Code Enforcement Officer had not been able to
prove any member of Beaches Aquatic Pool deposited rubbish and litter into the retention pond
and asked that both violations referenced be dropped.
Attorney Green showed Mr. Potter a copy of the tax rolls indicating the owner of the property
(retention pond) to be Beaches Aquatic Pool, Inc., and asked if they were the owners of Tract 3,
Aquatic Gardens and Mr. Potter replied yes. Attorney Green then inquired if there was rubbish
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April 29, 1997
floating on the pond as of today and Mr. Potter stated there was rubbish (plastic bottles, trash,
paper, etc.) floating on the pond. Thirdly, Mr. Potter was asked if there were young children
playing in the area, and Mr. Potter stated he did not know the ages of the children, but they did
play in the area and fish in the pond. Attorney Green then asked if was true the rubbish had been
in the pond for at least three months , and Mr. Potter replied that it probably had been in the pond
three months and perhaps longer. Attorney Green then inquired as to germs accumulating in the
rubbish and Mr. Potter replied that neither Mr. Grunewald nor he had identified any germs in the
pond.
At this point, Chairman Martin asked the Board if they had any questions for Mr. Potter and no
one spoke.
Mr. Potter then inquired as to Code Enforcement Official Grunewald's credentials and Mr.
Grunewald indicated he had among other certifications more than twenty years of experience,
including a Level III Certification in Code Enforcement. Mr. Potter then asked if Mr. Grunewald
was trained as a biologist or virologist and he stated he was not. Prosecutor Green objected to
the question on the grounds of relevancy. Mr. Potter continued with regard to germs and the
Nuisance Ordinance terminology concerning "a detriment to public health"..., and Mr. Potter
then asked if Mr. Grunwald was qualified to confirm the presence of any harmful bacteria or
viruses in the pond as a result of the floating plastics. Mr. Potter then inquired as to how
ownership of the property was determined and Mr. Grunewald stated the information was
obtained from the Duval County Tax Roll. He then asked if Mr. Grunewald had ascertained that
the City was the beneficiary of a perpetual easement over Tract 3, and Mr. Martin stated the
question would not be allowed.
Considerable discussion concerning the pond continued with Mr. Potter quoting from the
Nuisance Ordinance and stating Mr. Grunwald was not qualified to determine if the pond was in
fact "a detriment to public health". Prosecuting Attorney Green objected and stated Mr.
Grunewald was not an expert witness, but a fact witness who brought information to the Board of
what he observed. At this point, Mr. Potter objected to being accused of something that might be
harmful which has not occurred --------he concurred the pond was unsightly, but maintained it
was not injurious to the health of anyone.
Mr. Potter then passed out photos of the pond taken on April 2, 1997. After viewing the
pictures, Mr. Potter stated Beaches Aquatic Pools, Inc. had limited funds and no action should be
taken against them to pay a fine or maintain the pond, which he contended should be maintained
by the City, because the expenses would limit the ability of the organization to provide programs
for the public.
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After a cursory review of a document given each Board Member, Prosecuting Attorney Green
stated for the record she had been handed a composite exhibit entitled "Alan W. Potter, Sr." and
indexed to the documents and objected to the document on grounds of hearsay, relevancy and
duplicity.
Chairman Martin then asked Mr. Potter if any of the documents presented addressed whether or
not the pond is in violation, and he replied yes and referenced the copy of the Vortex contract for
spraying of the pond between 1983 and 1995.
At this point, Chairman Martin asked Code Enforcement Official Grunwald for his definition of
"well being" as found in Section 12-1(3) ... which may be injurious to the health and well-being of
the community. Code Enforcement Official Grunewald stated that from past experience as a
Code Enforcement Officer, when there is trash and rubbish which accumulates, whether on water
or on the ground, it breeds germs, mosquitoes, etc. Code Enforcement Official Grunewald
pointed out the section does not specifically say Mr. Potter or anyone threw the trash in the
pond, but states for any person to allow, suffer or permit this to happen. It was also pointed out
the section stated " ... which may be injurious (with emphasis on may be)..." Mr. Grunewald
then stated it does not have to be injurious to the health and well-being of the community, but
shall be unlawful to deposit rubbish of any kind which may be injurious... also, it was emphasized
in Section 12-1(4) with regard to the water in the pond, that "necessary precautions to prevent
the propagation of mosquitoes therein" should be taken, and Beaches Aquatic Pool had not done
so. At this point, Mr. Potter objected and stated Mr. Grunwald was not describing the pond as it
now exists.
Board Member Rogosheske then asked Mr. Potter if Beaches Aquatic Pool, Inc. had been cited
before and Mr. Potter stated that they were previously cited for weeds, which were mowed. The
present citation is a new violation, has nothing to do with weeds, and never occurred before. Mr.
Rogosheske also indicated he had viewed the pond on the nightly news and saw all of the floating
debris and heard the neighbors' complaints asked Mr. Potter if it was Beaches Aquatic Pools
view of maintaining a neat and orderly property?
Mr. Potter replied it was not, however, the organization had tried to work the problem out with
the city and even offered the pond property to the city for a park on three different occasions
because the property served no purpose to Beaches Aquatic Pool. Mr. Rogosheske then asked
Mr. Potter if Beaches Aquatic Pool, Inc. owned the property and he stated it was his contention
they owned the land under the pond, but not the water. Mr. Potter then explained that recent
heaving rains conveyed rubbish and debris into the pond from other areas and his organization
could not be responsible for trash flowing in from the other areas.
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In closing, Mr. Potter stated Beaches Aquatic Pool, Inc. had been in existence since 1963 to
provide a public service not provided by any other group in Atlantic Beach and has limited funds
to provide its programs for youth of the area. He further stated the organization derives no
benefit from the pond, was not involved in the construction of the pond and is being harassed by
the city to maintain it. Mr. Potter continued that Beaches Aquatic Pool, Inc. did not own the
pond until 1987 and he does not know how or why it was deeded to them at that time by the
developers of the condominiums adjacent to the pond property. It was also stated that no
member of the pool put any of the trash and rubbish into the pond. Mr. Potter maintained
Beaches Aquatic Pool, Inc. was not in violation because he did not agree with the city's strict
interpretation of ownership of the land under the pond.
Prosecuting Attorney Green then stated, in response to Mr. Potter's comments concerning the
prior ruling by the Board on November 13, 1996, the Board did find that Beaches Aquatic Pool,
Inc. was in violation of Section 12-1 (3), the same subsection now being cited, and therefore
this is a second violation. Prosecuting Attorney Green pointed out that during the testimony
given, Mr. Potter admitted to the trash and rubbish being in the pond and did not deny that it has
been there for several months. Mrs. Green continued by stating that the Board must now
determine whether the condition that exists "enhances the well-being of the community or does
not enhance the well-being, and therefore, may be injurious to the health and well-being of the
community". In conclusion, Prosecuting Attorney Green asked the Board to find Beaches
Aquatic Pool, Inc. in violation and assess a second time violation beginning from January 30,
1997, when he was notified of the violation.
Chairman Martin then asked Prosecuting Attorney Green to address Section 12-1 (4) and the
question of stagnant water. Mrs. Green clarified the terminology for the Board.
Mr. Potter objected to the use of the word "enhance" and the verbiage "may cause harm" because
he believed there was no evidence of past, present or future harm caused by the pond.
Board Member Deitchman inquired as to the date of the previous violation and was told
November 13, 1996 the Board found if there was another violation of Section 12-1 (3), they
would assess a fine from the day the property was found to be in non-compliance by the Code
Enforcement Officer until compliance is reached by the Code Enforcement Officer.
Bill Williams, President of Beaches Aquatic Pool, Inc., addressed the Board and stated the first
violation dealt with weeds, not trash in the pond and questioned if this was a second violation of
the ordinance. He also stated he would clean the pond under duress because they cannot use the
property and had to money to pay for maintenance of the pond. He also stated he believed the
city should be responsible for cleaning the pond.
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June Williams, wife of Bill Williams, was sworn in at this time, and stated that due to limited
funds, she donates her time to Beaches Aquatic Pool, Inc. and the organization has not paid
property taxes on the pond in three years.
After hearing their testimony, Chairman Martin stated it was not the object of the Board to levy
great fines or put a financial hardship on Beaches Aquatic Pool, Inc. After some further —
discussion concerning the duties of the Code Enforcement Board, a motion was made by Theo
Mitchelson and seconded by Ed Martin to find Beaches Aquatic Pool in violation of
Sections 12-1 (3) and 12-1 (4) of the Code of Ordinances.
Under discussion, it was determined the Board wished to decided each section separately and
Section 12-1 (4) was withdrawn from the motion. There being no further discussion, the
motion carried unanimously.
The wording stagnant water was discussed with several members having problems applying the
terminology to the pond. After some further discussion, a motion was made by Theo
Mitchelson, seconded by Ed Martin and failed by a three to three tie vote to find Beaches
Aquatic Pool in violation of Section 12-1 (4), with Board Members Deitchman, Mann and
Martin voting nay.
At this point in the meeting discussion ensued concerning if violation of Section 12-1 (3) was a
first or second offense. After considerable discussion, a motion was made by Chairman
Martin, seconded by Theo Mitchelson and unanimously carried to find Beaches Aquatic
Pool in a first offense violation of Section 12-1 (3) in that the offense was trash, not weeds.
Discussion ensued concerning the amount of time needed to correct the violation, and Alan Potter
stated they needed a minimum of seven days because the volunteer labor would need to work on
the weekend.
A motion was made by Chairman Martin and seconded by Ken Rogosheske to establish a
fine for a violation of any part of Section 12-1 (3) would result in a $25.00 per day fine to
take effect the day the citation is issued and allow seven days to bring the property into
compliance and if it is not done in seven days, impose a fine of $25.00 per day for each day
the property remains in non-compliance until brought into compliance to the satisfaction of
the Code Enforcement Officer.
Some further discussion ensued with Board Member Mitchelson opposing the fine structure. It
was the consensus of the Board to vote on each item separately and Chairman Martin
withdrew the motion.
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A motion was made by Chairman Martin, seconded by Ken Rogosheske and unanimously
carried to establish a fine of $25.00 per day for a violation of any part of Section 12-1 (3)
and the motion carried by a four to two vote with Board Members Deitchman and
Mitchelson voting nay.
A motion was made by Chairman Martin, seconded by Ken Rogosheske and carried by a
five to one vote with Board Member Mitchelson voting nay, to give Beaches Aquatic Pool,
Inc. until May 12, 1997 to bring the property into compliance or a $25.00 per day fine will
be levied beginning May 13, 1997 for each day the property is in non-compliance and
continuing until compliance is reached to the satisfaction of the Code Enforcement Officer.
A motion to amend the motion was made by Board Member Mitchelson to levy a one time
fine of $100.00 to be assessed against the party for whom the responsibility of the pond
exists as determined by the City Commission and the city should take immediate steps, at
the expense of the city, to eradicate the health hazard which has been identified the cost of
which ultimately will be assessed against the responsible party, be it Beaches Aquatic Pool,
Inc. or the City of Atlantic Beach. The motion died for lack of a second.
Case No. 97-4237-Linzy C. Lane, 1970 Park Street. The owner of the property is in violation
of Chapter 12, Section 12-01-08 of the Code of the City of Atlantic Beach in that there exists on
the premises located at 1970 Park Street the following condition(s): The building has fallen into
a state of disrepair and is in an unsanitary and unsafe condition. It appears the owner has
abandoned the property.
Code Enforcement Officer Grunwald explained he was seeking authorization from the Board for
the City to board up the building and photos showing the condition of the building were passed
out. Chairman Martin inquired if the building was in the same condition as shown in the photos
and Code Enforcement Officer Grunewald stated yes.
Much discussion ensued concerning the state of disrepair of the building and a history of the
property was given by Code Enforcement Officer Grunewald. Chairman Martin asked Mr. Lane
what his plans were for the building since more than two years had gone by since initial repair
efforts on the property had begun. Mr. Lane produced year old documents indicating payment
for work which had not been completed and stated he did not have the money to continue the
project at this time.
After some further discussion, it was the consensus of the Board to give Mr. Lane the opportunity
to properly secure the building.
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A motion was made by Theo Mitchelson, seconded by Ken Rogosheske and unanimously
carried to find Linzy C. Lane in violation of Chapter 12, Section 12-1-8 of the Code of
Ordinances of the City of Atlantic Beach.
A motion was then made by Chairman Martin, seconded by Theo Mitchelson and
unanimously carried -to give Mr. Lane five (5) days (until May 5, 1997) to secure the
property at 1970 Park Street in a manner approved by Code Enforcement Official
Grunewald.
A motion was made by Theo Mitchelson, seconded by Tammy Deitchman and unanimously
carried to fine Mr. Lane $10.00 per day for every day the property is in non-compliance
after the May 5, 1997 date until compliance is reached to the satisfaction of the Code
Enforcement Officer. Chairman Martin summarized the findings of fact.
5. REQUEST FOR LIEN ACTION:
Name Address Amount of Lien
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
9:25 PM.
G.E. Martin, Chairman
Code Enforcement Board
Attest:
Julie M. Brandt, Secretary