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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. Minutes Page -2- 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: Minutes Page -3- Code Enforcement Board April 29, 1997 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. Minutes Page 4 - Code Enforcement Board April29, 1997 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 Minutes Page -5- Code Enforcement Board 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 Minutes Page -6- Code Enforcement Board 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. Minutes Page -7- Code Enforcement Board April 29, 1997 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. Minutes Page -8- Code Enforcement Board April 29, 1997 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. Minutes Page -9- Code Enforcement Board April 29, 1997 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. Minutes Page -10- Code Enforcement Board April 29, 1997 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. Minutes Page -11- Code Enforcement Board April 29, 1997 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