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HomeMy WebLinkAbout1994 03 15 Code Enforcement Board Regular Minutes r CODE ENFORCEMENT BOARD MINUTES March 15, 1994 The meeting was called to order by Vice-Chairman Schneider at 7:00 P.M. BOARD MEMBERS: Bob Gray, Present Anne Schneider, Vice-Chairman Lloyd Anderson, Present Jim McShea, Resigned Lurene Lyzen, Present Gene Prestera, Present Ken Haines, Present CITY OFFICIALS: Frank Kruppenbacher, City Attorney Lt. Glenn Tolleson, Code Officer Al White, Code Inspector The Board was informed that Jim McShea telephoned the recording secretary and announced his regisnation from the Board due to conflicting schedules with his work. A formal letter of regisnation will follow. .r" Approval of Minutes of Special Meetin~ of January 27. 1994: Lyzen moved to approve the minutes of the Special Meeting of January 27, 1994. Seconded by Gray. Vote: All aye. Motion carried. Approval of Minutes of January 18. 1994: Lyzen moved to approve the minutes of January 18, 1994. Seconded by Haines. Vote: All aye. t'btion carried. Discussion on adding to the agenda the election of a Chairman and Vice- Chairman. Gray moved to add to the agenda the election of Chairman and Vice-Chairman. Seconded by Lyzen. Vote: All aye. Motion carried. Gray moved to elect Schneider for Chairman of the Code Enforcement Board. Seconded by Haines. Discussion. Schneider moved to elect Haines for Chairman. Haines decl ined the nanination. Schneider moved to elect Gray for Chairman. Gray declined the nanination. Prestera moved to close the naninations. Seconded by Lyzen. Vote for Schneider for Chairman: Lyzen: aye; Prestera: aye; Gray: aye; Haines: aye; Schneider: abstain; Anderson: aye. t'bt ion carried. Schneider Chairman of the Code Enforcement Board. Lyzen moved to elect Gray for Vice-Chairman of the Code Enforcement Board. Seconded by Haines. Prestera moved to close the nanination of Vice- Chairman. Seconded by Anderson. Vote for Gray for Vice-Chairman: Lyzen: aye; Prestera: aye; Haines: aye; Anderson: aye; Schneider: aye; Gray: aye. t'btion carried for Gray as Vice-chairman of the Code Enforcement Board. ~ Discussion of closed and pending cases: Attorney Kruppenbacher asked to speak to the Board at this time. He stated that recently the Board had a case regarding "the dog case" that was sent on to the Commission to decide whether or not they would permit it and you Code r ~ Enforcement Board Minutes March 15, 1994 Page 2 deferred action, pending that particular decision. Based upon that, I thought it appropriate to come talk with the Board and the Commission agreed because they had a concern about the process. Please understand this, in no way am I as the City Attorney nor is the Commission at all critical of that decision but there is a process that I need to review with the Board. Kruppenbacher stated that it is imperative that you (the Board) not defer cases and say that we (the Board) will not take any action and see if you can go have the City Commission give you the authority for this; or we will wait for you to get authori~y or get a decision from the Commission. And, the reason for that is - you get a citation issued by the Code Officer or Inspector based upon what they deem to be evidence that there has been a Code violation. When it gets to you, your role and responsibility is to detenmine whether or not based upon the evidence there was a violation and then what if any is the appropriate penalty. If you defer your action and move it on to the City Commission, what happens is we open a door for everyone who is cited to say that they want the same treatment, let me go to the City Commission and as you know we will have people asking for everything just to avoid having to deal with the actions. What I would ask is and what I would recommend as the City Attorney is that when you have a citation deal with the merits of that and when you get to the penality deal with what you think the appropriate penality is and then if the particular people cited want to go on to the City Commission, that will be their option under seperate Ordinances to decide to do that. That is not something that you, the Board, should allow to direct, you should say that you are here on this particular citation and we will deal with whether or not you violated the Code and then what is the appropriate penality. ~ Gray said that the City Code on that particular type of case, states that they can go to the City Commission to get a waiver and they are not in violation, I guess that would be the proper procedure. Kruppenbacher said that you have to detenmine whether they are in violation, whether there is a penality, you get a waiver before you violate the Code. You don't violate the Code and then get a waiver for this, the proper procedure is if you want a waiver from a requirement of the Code before you engage in the act you have to make application for a waiver. You can't violate the Code and then make application for a waiver because you may not get a waiver and you have already violated the Code. Discussion. Kruppenbacher said that he doesn't take exception of the Board's thought process in detenmining the case regarding the dogs, but it creates a legal delima for all the other cases that are not a simple dog problem. ~ Haines said that in reading in the Code book under 2-63, appeals, it states that if anyone wants to challenge the findings needs to go to Circuit Court. Kruppenbacher said that you take your action and they go from this ,""'" r " Code Enforcement Board Minutes March 15, 1994 Page 3 body to the Courts, they don't go to the City Commission. Schneider asked curcumstance, the action. under what Commission does curcumstance. Kruppenbacher said any not have the authority to reverse your Lyzen then stated what we should have done was finding of fact and given a relief order, then give them thirty days, and that thirty days would have given them time to go to the Commission. If they did go to the Commission and didn't get what they wanted ,then thirty days they would have had whatever we gave them as a fine. Kr,uppenbacher said that is exactly right. He said if you have a case that you say there is a violation and they are telling us they want relief and you in your discretion decide you want to have a relief order that says "X" and you are within your confines and they guide you, you can do that in your relief order and they will know how exactly how quick you can get it done and that is how you control the potential for abuse. Again I stress, I know exactly why you did it, I would have done it too. Discussion if thirty days would give him enough time to get on the Commission agenda. Kruppenbacher said that if you were to give a relief order that says, we find you in violation and you have "X" days to cane into compliance and then they file under a seperate ordinance for a waiver and within thirty days they obtained a waiver; they would have cane into compliance under your order. Now if you give someone thirty days they are going to get at least one of those meetings, unless the process in what they are asking for would have taken longer and they just didn't have it. Schneider asked about under a seperate ordinance, and we are talking about Section 4-2, more than two dogs or cats prohibited. Kruppenbacher said that when you enter your order that states you have 15 days to comply to come into compliance with City Code, you are acting under a code enforcement ordinance, and under a code enforcement statute. It is the Commission authority to issue the waiver, may fall under an ordinance that is not the code enforcement ordinance or the code statute. Schneider said it is under a different authority. Kruppenbacher said yes and they would have to make application under that authority and try and cane into compliance with your code. Discussion. Lt. Tolleson stated that the Commission can only issue a varriance if there is not a complaint. Lyzen said we still have to have a finding of fact. Kruppenbacher said that is right, what you need to decide is the code is written and the conduct occuring - is there a violation, if there is a violation then we find you in r violation then you have "X" nl.lT'ber of days to cane into compl iance. That part i cu 1 ar party then has to figure out how to cane into comp 1 i ance, and that's not sanething you do, even if your heart is in it to tell them how to get there, that is not the responsibility of the Board. r ~ Code Enforcement Board Minutes March 15, 1994 Page 4 Kruppenbacher said one last thing, I am available for you any time you need me. Generally what the staff does is if they identify that there is a complex or a real sensitive case they will alert me and I will come to that particular meeting; most of these are rather routine, and you have done a really great job. This is the only time I've had to deal with any issue with this Code Board, so if you ever need me don't hesitat to get ahold of me. Schneider announced to the Board that Jim McShea has resigned from the Board. Schneider asked if there was any discussion on closed and pending cases. Lyzen questioned the monthly report regarding a blank space. White said that means the case is pending. Gray asked about the 94-083 report regarding dirt in r-o-w in Georgetowne. White said that was a complaint by a resident there saying that the developer was not cleaning up the r-o-w, it is now corrected. ~ Lyzen asked about the back-flow device cases. Discussion. CEB-93-661, Clark, Thomas C. & Deborah L. and Barclay's Mortgage Corp. - 641 Pearl Road. Section 4-2 - More than 2 Dogs: Thomas Clark was sworn in for testimony. Lt. Tolleson stated that the Board has already discussed this case. This was deferred by and the fact is there is still three dogs and the Code states two, therefore we would like a ruling that the violation exists and an appropriate relief be ordered. Gray asked if anything has been changed since the last time we heard this case. Tolleson said that the last time we checked there was no one home and no dogs were seen. Gray asked Tolleson to his knowledge has anything been done to allow him to come into compliance. Tolleson stated no. White said that in his last conversation with the Clarks was that they had hoped to be able to go to the Commission as invited by this Board and little did they know at that time that it was going to create the problems that it did. Schneider asked Tolleson and White if they have seen the three dogs since the last meeting. They both answered no. ~ Schneider asked Clark if he currently has three dogs at his home. Clark r .. Code Enforcement Board Minutes March 15, 1994 Page 5 answered yes. Lyzen asked Clark if he plans on getting rid of one dog. Clark answered no. Gray said it sounds like you are prepaired to go to Circuit Court if you have to. Clark said yes, he said he spoke about the case the last time, we have already been here, we have been to the City Commission now it is back to here. He said personally he thinks this is a big joke and is all a wa i ste of a 11 of our time but you do what you have to do. Gray said that he agrees with him but if the City Commission wanted to give you a waiver, they would have done it. Clark said that no they wouldn't because they said the case was not presented properly. Discussion. Lyzen moved that in the case of CEB-93-661 of the City of Winter Springs, the Code Enforcement Board has read the complaint filed and the written infonmation prepared by the Code Inspector, and heard at the last meeting the sworn statement of procuting officer and witnesses regarding this case and based on that I move that this Board find Thanas & Deborah Clark and ~ Barclay's Mortgage Corp. in violation of Section 4-2 of the Codes of the City of Winter Springs and that an appropriate relief order be issued at this meeting. Seconded by Gray. Vote: All aye. Motion carried. I"""" Discussion on this case by the Board. Clark asked the Board that he be given ample time to prepare his case so we can get everything together so we can present our case properly and professionally. Discussion as to whether Clark has to go to Circuit Court or the City Commission. Tolleson stated that he can go to the commission for a variance but what ever the relief order will be he will have to go to Circuit Court for that. Schneider said but only if he has not cane into compliance by the amount of time limit we give him. Discussion. Relief Order: Haines said in the case of CEB-93-661 of the City of Winter Spr i ngs, THanas C. & Deborah L. Clark and Barc 1 ay 's Mortgage Corp. hav i ng been found by this Board to be in violation of Section 4-2 of the Code of this City, and a relief order issued, I move that Thanas C. & Deborah L. Clark and Barclay's Mortgage Corp. be given 30 days to correct this violation, if not correct by this time as determined by an officer of the City, shall be assessed a fine in the amount of $50.00 per day until such violation is found to be corrected by observation by a City Officer. Any repeat occurences of the same violation as determined by a City Officer shall cause the immediate fine of $100.00 to be assessed for each day of violation until the violation is found to corrected. Seconded by Lyzen. Discussion. Schneider said that she disagrees with the amounts, because there is no evidence that she has found of a health hazzard, a danger to the Community or any disturbance to the peace and repose of the neighbors. We have a complaint of having more than two dogs, but there is no evidence of nightly disturbances, dogs running loose and distruction of property. Lyzen r .~ Code Enforcement Board Minutes March 15, 1994 Page 6 said there is nothing that states distruction of property or anything like that in the City Code for Section 4-2. Discussion. Vote: Prestera: aye; Lyzen: aye; Anderson: aye; Schneider: nay; Haines: aye; Gray: aye. Motion carried. Schneider asked Clark if he understands that fram this point what he has to do as far as you know is he has to present the case to the City Commission and you have thirty days to came into compliance one way or another at which time a fine will be assessed. You can call or have any officer of the City go and inspect your premises once you feel that you've came into compliance. Clark said that under the Code we can ask for a variance fram the City Commission and if a variance is granted at that time, we can have the three dogs, it also says until another complaint is filed. At what point and what recourse do I have if another complaint is filed. The whole thing started when one person and one complaint in my intire neighborhood which we spent all this time for that last few weeks, if I continue to go through this whole thing and meanwhile came into compliance by removing one dog until I see the City Commission, I see the City Commission and if they do grant me a variance to have the three dogs, then what then. Gray said that if the person is only complaining because you have three, he has no leg to stand on because the Commission granted a waiver, if he complains because of same other reason such as to loud or whatever, then you have a problem, but it would be under a different City Ordinance. Clark said that the Code says that once a variance is granted until another complaint is filed. Schneider said it states once the Commission revokes it. Prestera said the Commission could revoke it if the dogs became a problem. ~ 94001050, Chip Ingram, Jack Ingram, Scott Weston Hartley, John Vester Long, Thomas Elize Williams I I I and the OWner, Karl Roebling and the Barnett Mtg. Co. Section 13-33, Occupants Play Loud Music, 175 Lori Ann Lane: Scott Hartley, Jack Ingram, John Long and Officer Marshall were sworn in for testrrony. White said that officers have been over to times regarding complaints of loud noise. is in your package on this case. 175 Lor i Ann Lane a nl.l'l'ber of All the accumulated information Tolleson stated that this case started on December 19, 1993, January 14, 1994 they were issued a warning for loud music, and through February they have received three citations for loud music and that didn't seem to bother them, we have talked to the property owners, the person taking care of the property and we have been up there 17 times for that one address. Even though their citations have totaled up to $300.00 they still haven't came into compliance. Officer Marshall is present and has witnessed the loud music. We are asking that a relief order be issued not only to the residents of 175 Lori Ann Lane but the property owner as well to help him police his own property and assure compliance. .~ ... '" r" Code Enforcement Board Minutes March 15, 1994 Page 7 Schneider asked if all the cases were investigated by a Police Officer. Tolleson said they were all by Police Officers. He said the loud noise happened anywhere from 12:20 a.m.; starting at 4:00 p.m. until almost 2:00 A.M. Discussion. Scott Hartley, 175 Lori Ann Lane, spoke on his behalf. He stated that his stero does not have enough power to be heard all the way down the end of the street. In regards to coming into carpliance, he said that he feels that he has come into compliance since the last citation was issued on March 1st. he was told he would be arrested if the police had to come out again, so since then he has not played his stero loud. He also stated that he has written statements from both neighbors on either side of him stating that his music is not loud or causes them any problem. Hartley said that he feels that someone in his neighborhood has something against him and that is why there are complaints. r-' Haines asked Tolleson when the warnings are issued are they based on reasonable cause, does the Officer have to hear the music. Tolleson said the warning are issued based on reasonalbe cause and the Officer does not have to hear the music himself, it can be based on an eye witness. Jack Ingram, 175 Lori Ann Lane, stated that the neighborhood is loud from the children in the neighborhood. Officer Marshall stated that he has been out to this location several times in the past. He said that he can verify that every time he was at the location he could hear loud music as he was pulling up to the apartments. John Long, 175 Lori Ann Lane, said that the music was not playing loud at the time one of the citations was issued. Nancy Parmenter, Property Manager, 130 Lori Ann Lane, representing the owner Karl Roebling, stated that the residents at 175 Lori Ann Lane spoke about this case. Schneider asked Parmenter if she has experience the loud music from 175 Lori Ann Lane. Parmenter said that she lives at the other end of the street and that she has not hear the mus i c. r-. Parmenter said that since this has been brought to Mr. Roebling's attention, they have filed an eviction notice on the renters at 175 Lori Ann Lane, to try and carply and as soon as it goes to the Judge, it gets signed and posted and then they have 24 hours to move from the premises. Discussion on this case. ~ ~ Code Enforecment Board Minutes March 15, 1994 Page 8 Gray moved that Chip Ingram, Jack Ingram, Scott Weston hartley, John Vester Long, Thomas Elize Williams I I I, and the owner, Karl Roebling and the Barnett Mtg. Co. be found in violation of Section 13-33 of the Code of the City of Winter Springs. Seconded by Haines. Vote: All aye. Motion carried. Relief Order: Lyzen moved that in the case of CEB-94001050 of the City of Winter Springs, Chip Ingram, Jack Ingram, Scott Weston hartley, John Vester Long, Thomas Elize Williams I I I, and the owner, Karl Roebling and the Barnett Mtg. Co. having been found by this Board to be in violation of Section 13-33 of the Code of this City, I move therefore that effective immediately shall be assessed a fine in the amount of $50.00 per occurance until such violation is found to be corrected by observation of a City officer and also any repeat occurences of the same violation as detenmined by a City Officer shall cause the immediate fine of $100.00 to be assessed for each occurance of continuining violation until the violation is found to be corrected. Seconded by Gray. Discussion. Vote: All aye. ~ The meeting adjourned at 8:22 P.M. Respectfully Submitted, Margo Hopkins, Deputy City Clerk ~.