Town of Ponce Inlet CODE ENFORCEMENT BOARD REGULAR HEARING AGENDA

Transcription

1 Town of Ponce Inlet CODE ENFORCEMENT BOARD REGULAR HEARING AGENDA Monday Town Council Chambers October 23, 9:30 AM 4300 S Atlantic Ave, Ponce Inlet, FL SUNSHINE LAW NOTICE FOR BOARD MEMBERS Notice is hereby provided that one or more members of the Town Council or other Town Boards may attend and speak at this meeting. 1. CALL TO ORDER 2. PLEDGE OF ALLEGIANCE 3. ROLL CALL & DETERMINATION OF QUORUM 4. ADOPTION OF AGENDA 5. EX-PARTE COMMUNICATION - Code Enforcement cases are quasi-judicial and receipt of any information outside of the public meeting on a case is strongly discouraged. If a board member obtains any information outside the public hearing process, this information must be disclosed in detail by the board member prior to the presentation of the case and may not be considered by the board member when making any decision related to the case. 6. ADMINISTERING THE OATH TO WITNESSES - Attorney Cino 7. APPROVAL OF THE MINUTES - A. August 28, CONSENT AGENDA - None 9. OLD BUSINESS A. Case # ; Property address: 125 Ponce DeLeon Circle Owner(s): JRS Florida Real Estate, Tammy Shoemaker, Registered Agent Violation(s): Work without permits or inspection approvals B. Case # ; Property address: 4604 South Atlantic Avenue Owners(s): Athena Diversified Investment, Maria Lagatta, Registered Agent Violation(s): Work without permits or inspection approvals C. Case # ; Property address: 4616-B South Atlantic Avenue Owner(s): Athena Diversified Investment, Maria Lagatta, Registered Agent Violation(s): Work without permits or inspection approvals D. Case # ; Property address: 5711 Riverside Drive (Port Orange) Owner(s): George Workman Violation(s): Work without permits or inspection approvals; and mooring of a vessel for commercial use Code Enforcement Board Regular Hearing Agenda Page 1

2 10. NEW BUSINESS - A. Case # ; Property address: 20 Seahaven Drive Owner(s): Marvin & Betty Jean Garner Alleged Violation(s): Work without permits or inspection approvals B. Case # ; Property address: 151 Bounty Lane Owner(s); Victor & Alana Petrenko Alleged Violation(s): Work without permits or inspection approvals C. Case # ; Property address: 80 Jennifer Circle Owner(s); George Workman Alleged Violation(s): High Grass and unsecured swimming pool 11. ATTORNEY DISCUSSION AGO , Code Enforcement order, entry on private property 12. BOARD DISCUSSION A. Next scheduled meeting November 20, 2017 (Meeting date changed due to Thanksgiving holiday) 13. ADJOURNMENT If a person decides to appeal any decision made by the town of Ponce Inlet s Code Enforcement Board with respect to any matter considered at a meeting or hearing, he/she will need a record of the proceedings and that for such purpose, he/she may need to ensure that a verbatim record of the proceedings is made at his/her own expense. Persons who require an accommodation to attend this meeting should contact the Ponce Inlet Town Hall at at least 48 hours prior to the meeting, to request such assistance. A complete copy of the materials for this agenda is available for review at the Town Hall. Code Enforcement Board Regular Hearing Agenda Page 2

3 TOWN OF PONCE INLET CODE ENFORCEMENT BOARD REGULAR MEETING MINUTES August 28, CALL TO ORDER: Chairman Villanella called the meeting to order at 9:30 a.m. in the Council Chambers, 4300 S. Atlantic Avenue, Ponce Inlet, Florida. 2. PLEDGE OF ALLEGIANCE: Chairman Villanella led the Pledge of Allegiance. 3. ROLL CALL & DETERMINATION OF QUORUM: Board members present: Board members absent: Mr. Hinson, Seat #1 None Mr. Villanella, Seat #2 Mr. Finch, Seat #3 Mr. Michel, Seat #4 Ms. DiCarlo, Seat #5 Ms. Cannon, Alternate #1 Ms. Bullock, Alternate #2 A quorum was established; there were no absences. Staff present: Attorney Cino, Code Board Attorney Mr. Hooker, Code Enforcement Officer Ms. Hugler, Acting Recording Secretary Attorney Smith, Town Attorney 4. ADOPTION OF THE AGENDA: Ms. DiCarlo moved to adopt the agenda as presented; seconded by Mr. Hinson. The motion PASSED 5-0, by consensus. 5. EX-PARTE COMMUNICATION: None. 6. ADMINISTERING THE OATH TO WITNESSES: Attorney Cino administered the Oath to Mr. Hooker, Code Enforcement Officer and Mr. Patrick Esposito. 7. APPROVAL OF THE MINUTES: A. July 24, 2017 Ms. DiCarlo requested that the minutes be amended to show that Terry Penn was sworn-in at the meeting; there were no other changes. Ms. DiCarlo moved to approve the July 24, 2017 meeting minutes as amended; seconded by Mr. Michel. The motion PASSED 5-0, with the following vote: Mr. Hinson yes; Mr. Villanella yes; Mr. Finch yes; Mr. Michel yes; and Ms. DiCarlo yes. 8. CONSENT AGENDA: None 9. OLD BUSINESS: A. Case # ; property address: 125 Ponce deleon Circle Owner(s): JRS Real Estate, Tammy Shoemaker, Registered Agent Violation(s): Work without required permits or inspections Mr. Hooker stated that a permit application has been received and is under staff review; he requested this item be continued to the September 25, 2017 meeting. Chairman Villanella asked CEB Meeting Minutes August 28, 2017 Page 1 of 4

4 if there was anyone present to speak on this case there was not. Vice Chairman Finch moved to continue this case to the September 25, 2017 meeting; seconded by Mr. Michel. The motion PASSED 5-0, with the following vote: Mr. Hinson yes; Chairman Villanella yes; Vice-Chairman Finch yes; Mr. Michel yes; and Ms. DiCarlo yes. The Town requested the Board consolidate items 10B and 10C as it did at last month s hearing. The Board agreed. B. Case # ; property address: 4604 S. Atlantic Avenue Owner(s): Athena Diversified Investment, Maria Lagatta, Registered Agent Violation(s): Work without required permits or inspections C. Case # ; property address: 4616-B S. Atlantic Avenue Owner(s): Athena Diversified Investment, Maria Lagatta, Registered Agent Violation(s): Work without required permits or inspections Mr. Hooker reviewed the violations and the Board s Order of July 24, He noted that permit applications have been submitted and are under staff review. Mr. Hooker requested that these cases be continued to the September 25, 2017 meeting. Ms. DiCarlo asked if staff had been able to access the second building. Mr. Hooker stated no, but staff is confident that the owner is working on compliance based on the application documents and conversations with the contractor. Chairman Villanella asked if there was anyone present to speak on this case. Terry Penn, 213 Harvard Avenue, Daytona Beach (tenant) asked to address the Board; Attorney Cino swore-in Mr. Penn. Mr. Penn informed the Board that he has a meeting with staff at 9:30 AM tomorrow morning at the unit. Ms. DiCarlo moved to continue case and to the September 25, 2017 meeting; seconded by Mr. Michel. The motion PASSED 5-0, with the following vote: Mr. Hinson yes; Mr. Michel yes; Chairman Villanella yes; Vice-Chairman Finch yes; Ms. DiCarlo yes. D. Case # ; property address: 80 Jennifer Circle Owner(s): George Workman Violation(s): Work without required permits or inspections Mr. Hooker reviewed the violations and the Board s Order of July 24, He noted that there has been no communication with Mr. Workman nor Mr. Sorensen (handyman), and the property remains in non-compliance. Mr. Hooker added that the Town is requesting the imposition of a $100 per day fine, beginning today, and continuing until property is brought into compliance. Mr. Michel asked if the four by four posts have been removed. Mr. Hooker stated no, but the construction fence has now been attached to the four-by-four posts, thereby securing the pool. Mr. Michel asked that if the posts were removed, would the property then be in compliance; Mr. Hooker said yes. Chairman Villanella asked if there was anyone present to speak on this case; there was not. Vice-Chairman Finch moved to find the property in continued non-compliance, assess $ per day fine to accrue until property is brought into compliance; seconded by Chairman Villanella. The motion PASSED 4-1, with the following vote: Mr. Hinson yes; Mr. Michel yes; Chairman Villanella yes; Vice-Chairman Finch yes; Ms. DiCarlo no. 10. NEW BUSINESS: A. Case # ; property address: 4343 Candlewood Lane Owner(s): Julius and Patrick Esposito Alleged violation(s): work without required permits or inspections CEB Meeting Minutes August 28, 2017 Page 2 of 4

5 Mr. Hooker reviewed the case, including providing testimony and evidence depicting electrical work was performed without a permit or inspections. He noted that Pinch-A-Penny originally submitted a permit application, but it is not licensed to perform the electrical work that was required for the installation of the salt chlorination system; then staff discovered that the work was completed. He stated that since the Notices were delivered, the owner contacted staff and obtained the proper permit and the inspections are complete. He asked that the Board find the property was in non-compliance, is now in compliance, and to dismiss the case. Chairman Villanella asked if there was anyone present to speak on this case Patrick Esposito (owner) stated that he wanted to appeal the penalty. Chairman Villanella stated that there is no penalty, since the property was brought into compliance before the hearing date. Mr. Esposito stated that he was charged a penalty fee on the permit Mr. Hooker noted that this is called an after the fact permit penalty. Mr. Michel asked what he paid for the permit and the penalty. Mr. Esposito said the permit cost $300.03, including a penalty of $ Mr. Hooker suggested Mr. Esposito meet with staff after this meeting to discuss the penalty fee. Vice-Chairman Finch moved to find the property was in non-compliance, is now in compliance and to dismiss the case; seconded by Mr. Michel. The motion PASSED 5-0, with the following vote: Mr. Hinson yes; Mr. Michel yes; Chairman Villanella yes; Vice- Chairman Finch yes; Ms. DiCarlo yes. B. Case # ; property address: 5711 Riverside Drive, Port Orange Owners(s): George Workman Alleged violation(s): work without permit and inspection approvals; and mooring facility for commercial use Mr. Hooker reviewed the case by providing testimony and evidence of construction of a dock without permits or proper inspections and a mooring facility for commercial use. Mr. Hooker explained that the jurisdictional boundary line of Ponce Inlet is the seawalls along Riverside Drive. He stated that many docks and boathouses are non-conforming and/or unpermitted. He noted that the boat Act Like So is not properly registered and is being moored at a rented residential dock. Ms. DiCarlo asked how the Town can regulate those properties. Attorney Cino stated that when Port Orange annexed the properties, the seawalls were used as the boundary line. Ms. DiCarlo asked if the Town is responsible for enforcing its regulations on those properties. Mr. Hooker stated that the town Code requires all docks be inspected every five years. Mr. Michel clarified that the property owner is in violation of using the dock space as a rental; and asked if the boat is stored there or being lived on. Mr. Hooker stated that there will be other violations brought before the Board with similar violations, and we ll treat each one individually. Ms. DiCarlo asked for an explanation of the boundary. Mr. Hooker stated it starts in Ponce Inlet and continues across the Halifax River to the seawalls on the west side of the river. Vice-Chairman Finch stated that based on the information before the Board, it appears that the property owner rents out the house, and the tenant rents out the boat slip; Mr. Hooker stated correct. Attorney Smith noted that the boat dock is attached to the property as an accessory structure. Mr. Hooker noted that the vessel has been there for over a year, and in March 2017, the City of Port Orange determined that the dock was in Ponce Inlet s jurisdiction. He stated that he has communicated with Mr. Sorensen (tenant) and Mr. Dmitri (sp), boat owner, but the violations remain. Attorney Cino reminded the Board that their task is to determine if a violation exists and to render an Order, since the alleged violation(s) are within the Town s jurisdiction. Mr. Michel moved to find the property in violation, order removal of the vessel Act Like So, cease operation of slip rentals, and submit permit applications before the September 25, 2017 hearing date; seconded by Chairman Villanella. The motion PASSED with the following vote: Mr. Hinson yes; Mr. Michel yes; Chairman Villanella yes; Vice-Chairman Finch yes; Ms. DiCarlo yes. 11. ATTORNEY DISCUSSION: CEB Meeting Minutes August 28, 2017 Page 3 of 4

6 A. AGO ; Initial violation as repeat violation May a city cite and prosecute an individual for a repeat code violation under section (3), FS, when there is a prior adjudication of the same violation that has not been resolved or for which the violator has failed to comply? Attorney Cino reviewed the AGO, noting that a municipality must utilize the enforcement mechanisms and procedures set forth in Chapter 162, FS. 12. BOARD DISCUSSION: A. Next meeting date: September 25, 2017 at 9:30 a.m. 13. ADJOURNMENT: The meeting was adjourned at 11:00 a.m. Respectfully submitted by, Peg Hunt, Town Board Secretary CEB Meeting Minutes August 28, 2017 Page 4 of 4

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27 Florida Attorney General Advisory Legal Opinion Number: AGO Date: August 26, 2009 Subject: Code enforcement order, entry on private property From: Bill McCollum, Attorney General Mr. David Jove, City Attorney City of Hallandale Beach 400 South Federal Highway Hallandale Beach, Florida RE: LOCAL GOVERNMENT CODE ENFORCEMENT MUNICIPALITIES ARREST WARRANTS order of local government code enforcement board authorizes entry onto property without owner's consent and but does not substitute for appropriate warrant for arrest of owner. ss , , , , and , Fla. Stat. Dear Mr. Jove: On behalf of the City of Hallandale Beach, you ask substantially the following question: May an order of the city s Unsafe Structures Board substitute for a judicial warrant to authorize the city to enter premises found to be in violation of the city s code without the owner's consent, to abate the violations and to arrest the owners? In sum: An order of the city s Unsafe Structures Board authorizes the city to enter premises found to be in violation of the city s code in order to abate or repair the violation without the owner s consent, but does not substitute for the appropriate warrant to arrest the owner. You state that the property in question is an owner-occupied homestead found by the city s code enforcement board to be in violation of several of the city s codes or ordinances. The property has also been found to be in violation of the Florida Building Code. The property has no potable water, thereby creating unsanitary conditions, and has been determined to be unsafe and uninhabitable. You indicate that the property owner has been notified of the code violations, given an opportunity to be heard, and allowed time to cure the violations. However, the property owners did not appear at the hearing, nor did they defend the action. The city s Unsafe Structures Board has rendered an order to vacate the premises and to bring the structure into compliance with the building code and to remove all unsafe conditions from the building.[1] Part I, Chapter 162, Florida Statutes, is the "Local Government Code Enforcement Boards Act." It was created to: "promote, protect, and improve the health, safety, and welfare of the citizens of the counties and municipalities of this state by authorizing the creation of administrative boards with authority to impose administrative fines and other noncriminal penalties to provide an equitable, expeditious, effective, and inexpensive method of enforcing any codes and ordinances in force in counties and municipalities, where a pending or repeated violation continues to exist."[2] The procedure for enforcement of local codes is set forth in section , Florida Statutes. As noted above, it appears that these procedures have been followed, yet the violations continue and the question of whether the city may enter the property to correct the violation without a warrant remains. In addition to the imposition of administrative fines for a code violation, the act recognizes that if a violation is one which is described in section (4), Florida Statutes, the enforcement board must notify the local governing body "which may make all reasonable repairs

28 which are required to bring the property into compliance and charge the violator with the reasonable cost of the repairs along with the fine imposed pursuant to this section."[3] Section (4), Florida Statutes, states: "If the code inspector has reason to believe a violation or the condition causing the violation presents a serious threat to the public health, safety, and welfare or if the violation is irreparable or irreversible in nature, the code inspector shall make a reasonable effort to notify the violator and may immediately notify the enforcement board and request a hearing." Thus, the statute recognizes that an enforcement board, having determined that a violation presents a serious threat to the public health, safety, and welfare or is irreparable or irreversible in nature, must notify the local governmental body. Upon notification, the governmental body enforcing the code is authorized to make all reasonable repairs required to bring the property into compliance. There is no mention that further process is required to authorize the governing body to enter the property in order to make the necessary repairs. The Florida Statutes provide for the procurement and issuance of "inspection warrant[s]" which authorize a state or local official to conduct an inspection of any building, place or structure, other than an owner-occupied family residence, as authorized or required by state or local law or rule relating to municipal or county building, fire, safety, plumbing, electrical, health, minimum housing, or zoning standards.[4] Section , Florida Statutes, specifically provides that "[o]wneroccupied family residences are exempt from the provisions of [sections , Florida Statutes]." As related to municipal or county building, fire, safety, plumbing, electrical, health, minimum housing or zoning standards, all other places, dwellings, structures or premises are subject to the provisions of sections , Florida Statutes. This office has previously determined that local code enforcement officers are not authorized to enter onto any private, commercial, or residential property to assure compliance with or to enforce the various technical codes or to conduct any administrative inspections or searches without the consent of the owner or the operator or occupant of such premises, or without a duly issued search or administrative inspection warrant.[5] In this instance, however, the initial inspection by the code enforcement officer and subsequent finding of a violation by the Unsafe Structures Board have already occurred. As previously noted, where the violation poses a serious threat to the public health, safety, and welfare, the code enforcement board must notify the governing body which is then authorized to make all reasonable repairs to bring the property into compliance. The subsequent arrest of an individual for code violations, however, is governed by other provisions in Chapter 162, Florida Statutes. Section , Florida Statutes, in pertinent part, provides: "The governing body of a municipality may designate the enforcement methods and penalties to be imposed for the violation of ordinances adopted by the municipality. These enforcement methods may include, but are not limited to, the issuance of a citation, a summons, or a notice to appear in county court or arrest for violation of municipal ordinances as provided in chapter 901. Unless otherwise specifically authorized and provided for by law, a person convicted of violating a municipal ordinance may be sentenced to pay a fine, not to exceed $500, and may be sentenced to a definite term of imprisonment, not to exceed 60 days, in a municipal detention facility or other facility as authorized by law." (e.s.) Clearly, an individual charged with violation of a municipal ordinance may be arrested, but only in compliance with Chapter 901, Florida Statutes. This chapter addresses the arrest of individuals and, among other things, prescribes circumstances in which a warrantless arrest may be made.[6] Section , Florida Statutes, recognizes that "[e]ach state judicial officer is a conservator of the peace and has committing authority to issue warrants of arrest, commit offenders to jail, and recognize them to appear to answer the charge." Nothing in Chapter 901, Florida Statutes, appears to authorize a municipal administrative entity such as the Unsafe Structures Board to

29 issue arrest warrants, nor is there authority to conclude that an order of such board would have the effect of an arrest warrant.[7] Accordingly, it is my opinion that an order of the city s Unsafe Structures Board allows the city to enter the premises to make reasonable repairs to abate or correct a code violation presenting a serious threat to the public health, safety, and welfare without the owner s consent, but does not substitute for a judicial warrant necessary to arrest the owner [1] City of Hallandale Beach, Florida, Unsafe Structures Board Order #03-08, November 10, [2] Section , Fla. Stat. [3] Section (1), Fla. Stat. [4] See ss , Fla. Stat. [5] See Ops. Att'y Gen. Fla , (1984), and (1974). [6] See s , Fla. Stat. [7] Cf. s , Fla. Stat., enumerating the powers of each enforcement board to: (1) Adopt rules for the conduct of its hearings. (2) Subpoena alleged violators and witnesses to its hearings. Subpoenas may be served by the sheriff of the county or police department of the municipality. (3) Subpoena evidence to its hearings. (4) Take testimony under oath. (5) Issue orders having the force of law to command whatever steps are necessary to bring a violation into compliance."