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2015.07.15_CEB_Minutes_Regular TOWN OF HIGHLAND BEACH MINUTES OF THE CODE ENFORCEMENT BOARD s w REGULAR MEETING Wednesday,July 15, 2015 9:30 AM Members Present: Chair Tim Burnich; Board Member Paul Resnick; Board Member David Stern and Board Member George Kelvin and Board Member Carl Gehman. Members Absent: Board Member Michael Kravit (excused) and Vice Chair Don Gill (excused). Also Attending: Town Manager Beverly Brown; Town Attorney Len Rubin, Town Clerk Valerie Oakes, Deputy Town Clerk Patrice Robinson, Commissioner Lou Stern, Commissioner Rhoda Zelniker, Building Official Michael Desorcy, Code Enforcement Officer Carol Holland and members of the general public. CALL TO ORDER: Chair Burnich called the Regular Meeting to order at 9:30 a.m. Roll call was taken by Deputy Town Clerk Robinson followed by the Pledge of Allegiance. At this time, new Members George Kelvin and Carl Gehman were welcomed and introduced. ADDITIONS,DELETIONS OR ACCEPTANCE OF AGENDA: Chair Burnich called for any additions,deletions or acceptance of the agenda. He requested to add to old business the motion that was tabled at the last meeting regarding the challenge we have on State Road AIA by the Delray Sands Hotel. MOTION: Member Stern moved to accept the agenda as presented with the addition. Motion was seconded by Member Gehman, which passed unanimously. PUBLIC COMMENTS AND REQUESTS: There were no public comments. PRESENTATIONS: A) Review of Laws and Procedures of Code Enforcement By: Len Rubin, Town Attorney Code Enforcement Board Regular Meeting Minutes Wednesday,July 15,2015 Page 2 of 6 Town Attorney Rubin provided a handout (attached as Exhibit A) regarding the Role of Code Enforcement Board and offered the following. The Board has jurisdiction to enforce all technical codes within the Town, including,but not limited to,business taxes,fire code, building code, zoning code and sign code. The procedures that are utilized are essentially statutory. The Town adopts them and once you adopt the procedure that is set forth in the statute you really have to follow that procedure. The only flexibility that comes in is what you decide to take to Code Enforcement. You can decide which codes you want to use or which codes you want to address through this process. There is a provision in the code that says if the Code Enforcement Officer wishes in his or her discretion,that violations can be enforced through the County court system. It's not done very often because it's not economically efficient. You have to pay a filing fee. It's a much more formal process but it is in the code and in the statutes that you can use an alternate system. Basically, it's the duty of the code inspector to initiate the proceedings. No member of the Board shall have the power to initiate proceedings. That's important because once you get to the formal proceeding part it's really in the discretion of the code inspector and not the Board. Only enforcement officers can initiate the formal proceedings.Now many of the code violations are often remedied by the code enforcement officer, especially in the Town of Highland Beach. It seems that the people here are very cooperative and as I said that's a very good thing. If the code inspector decides to initiate formal code enforcement proceedings that's done through an issuance of a notice of violation. The code officer is required by statute to give the violator a reasonable time to correct the violation and if it continues beyond the date for correction established by the officer then a notice of hearing is issued. The notice of hearing is what actually comes before this Board. Issues come before this Board when a notice of violation has been issued and the violator doesn't comply by the time specified and then a notice of hearing is issued and we convene a meeting. If the violation is corrected and reoccurs or goes past the time that the inspector sets they can still bring it to the Board to hear the case. The only reason that comes into play is if you have a persistent violation that keeps getting corrected or reoccurs. The code inspector can request the Board to enter an order finding a violation. Why that's important is because any subsequent violation becomes a repeat violation for which the notice requirements are allowed. They can come directly to the Board and the fine is enhanced. But that's really only for problem properties and it doesn't appear that you have any within the Town of Highland Beach. Also,there is an exception in the code and the statutes that if there is a health, safety and welfare issue it can come right to the Board after reasonable efforts to notify the violator. When a case is presented to the Board, the Board hears testimony under oath from the officer and from the violator. Formal rules of evidence do not apply, but the proceedings must be governed by fundamental fairness, which is essentially basic due process. This ensures that the violator and the Town representative have the ability to speak and have notice of the proceedings. At the conclusion of the meeting, the Board issues its order and that order has to be based on the evidence that's presented at the hearing. The order finds violations,gives a date for compliance, authorizes the issuance of a fine up to$250 per day per violation for initial violations and that increases to $500 for repeat violations. In determining the amount of the fine the statute actually says there are factors that the Board is required to consider: (1)the gravity of the violation, (2)the actions taken by the violator Code Enforcement Board Regular Meeting Minutes Wednesday,July 15,2015 Page 3 of 6 to correct the violation and (3) any previous violations committed by the violator. The Board has five powers and they are set forth in the statutes and the code. You may(1)adopt rules of conduct, (2) issue subpoenas, (3) subpoena evidence, (4) take testimony under oath, and (5) issue orders with the force of law and commanding whatever steps are necessary to bring the property into compliance. This Board is a quasi-judicial body. It's quasi-judicial because you are not bound by the same formality and procedures as a judicial hearing. But it's like a judicial hearing in the sense that you consider the evidence presented and you apply it to the existing laws. You don't create policy,you just apply policy. It's real important because you are quasi-judicial that you remain impartial. Therefore the Board should not be involved in the enforcement process. You're not supposed to have communications with the officer or the violator in quasi-judicial proceedings. You are prohibited from engaging in ex-parte communications with parties of the case. The reason is the ruling that you issue at the hearing must be based on the evidence presented at the hearing. The parties to the proceeding have the right to know exactly what evidence is presented and if there are conversations outside the context of that hearing it's prejudicial to whatever party you did not communicate with because they won't know the basis of your decision. I know you want to bring the Delray Sands issue back up. But you cannot provide direction to the code enforcement officer. As a member of this Board you don't lose the rights that another private citizen has. There is an attorney general opinion that says that you can report a violation because the statute does not say how a potential violation gets to the code enforcement officer. In your private capacity you may report a code violation in the same manner as a resident of the Town of Highland Beach but you cannot provide any direction as a Board member and you may not direct the initiation of the proceedings or be involved in the process at all. On the handout at the bottom, there is a quote from that attorney general opinion and it basically states that the statute doesn't specifically delineate how the information gets to the code enforcement officer. But the summation is that it appears that a member of the code enforcement board acting as a private citizen is not prohibited from alerting the code inspector to a potential violation but it's the code inspector that determines whether a violation has occurred and initiates the proceedings. Going back to the Delray Sands issue, as citizens you may call regarding issues and the town will direct it to the appropriate agency. But as a Board you really cannot direct staff to take any specific action. I'd be more than happy to answer any questions that you may have. B) Quarterly Code Enforcement Update By: Michael Desorcy, Code Enforcement Administrator Carol Holland, Code Enforcement Officer Chair Burnich—Does anyone have any questions for the Building Official?Member Stern —Other than what's on the report, are there any major issues that are before you? Code Enforcement Board Regular Meeting Minutes Wednesday,July 15,2015 Page 4 of 6 Building Official Michael Desorcy — I don't know if the boat in the driveway is on the report.Carol mailed out a violation in Bel Lido. A boat was left out in the driveway beyond the limits of what is required by the code. A boat is only allowed to be loaded and unloaded or washed and then put away. The boat continuously was left out so the town issued a notice of code violation to the property owner. That was just issued and the card was signed for two days ago. The owner was given five days to comply and the boat is not in the driveway anymore.The owner of the property is renting the property to someone who owns the boat so she had a discussion with the tenant and explained the severity of the violation of what could happen if the violation reoccurs. It's been left out numerous times beyond what's required by the code. The owner has been put on notice. If the tenant continues to violate the code they will come before the Board. Chair Burnich — Thank you. We appreciate it. It seems like you're doing a good job at keeping us from having stuff to do. B.O. Desorcv — The objective of code enforcement is compliance. If we can get the residents to comply if there is a violation, that's what we'd like to do. We are a little more hands on than just sending out letters. Chair Burnich—Code Enforcement Carol Holland's report is extensive. Code Enforcement Officer Carol Holland—My report is from the last three months. Everyone was in compliance and I really didn't have any issues. The only issue right now is the boat which has been taken care of and documented. APPROVAL OF MINUTES: • April 15,2015—Regular Meeting Chair Burnich called for a motion for approval. MOTION: Member Stern moved to approve the minutes of April 15, 2015, Regular Meeting. Member Resnick seconded the motion which passed unanimously. OLD BUSINESS: Chair Burnich— I added something under old business that I guess we are not allowed to talk about. Town Attorney Rubin — I believe at this point that staff is perfectly aware of that issue and I'm sure they will address it in the appropriate manner. Member Stern— I just want to report that what was discussed has really been addressed. I personally do not have a problem. It appears to me that things are pretty much the way they should be. Chair Burnich — Town Attorney Rubin, what you're saying is that if we see something that personally upsets us that we should just call the code enforcement officer and not do anything as a board member. Town Attorney Rubin—Right. You should just be acting in your private capacity not your official capacity because in your official capacity you cannot influence the process. In your private capacity you can report the actual violation but then it's up to the staff to determine how it's handled. And of course if a notice of violation is issued and we get to the hearing process it will come back before you; but this way you have had no involvement in the process. Code Enforcement Board Regular Meeting Minutes Wednesday,July 15,2015 Page 5 of 6 NEW BUSINESS: Member Kelvin—I don't know if this is appropriate or not but July 4t', I was on the beach observing the fireworks at the Boca Highlands Beach Club. The private residents to the north had three high intensity flood lights pointing directly toward the beach. I'm not sure if it is turtle season but I think that was outrageous. Do we have any capability of patrolling the beach on a random basis to observe whether or not the lights are provisions of the code? Town Manager Brown — You can call Sergeant Carl at the Police department and notify them of the address. He goes out at night time and addresses the light issues. We just need to know ahead of time. This is the first time I have heard of it. The people who have the turtle licenses must not be aware of it because they are generally right on top of these complaints. Member Gehman — There's a blue sign on AIA that says contract remodeling, is that a code violation. B.O. Desorcv—I'm not sure what the address is or if there is a permit. I'm sure there is a permit associated with the work that is going on which is allowed. Member Gehman — It's right by Bel Lido. It's a big blue sign that says Contractor, LLC, Interior Designer. It's on the grounds of the owner's property. I don't have the address. B.O. Desorcy—Constructions signs are permitted. The signs can't exceed 16 square feet. I will check it out. Chair Burnich—Aren't the specifics on our webpage where people can go and look up the dimensions for signs that are allowed? B.O. Desorcv — Yes. They can go to Municode and go to Chapter 23 which is the sign code. Member Resnick— It's definitely bigger than 16 square feet. I was not aware that was the limit. B.O. Desorcv —How long has it been up? I will look into it. ADJOURNMENT: Chair Burnich called for a motion to adjourn. MOTION: Member Stern moved to adjourn the meeting at 9:55 AM. Member Gehman seconded the motion, which passed unanimously. Code Enforcement Board Regular Meeting Minutes Wednesday,July 15 2015 Pa e 6 of 6 APPROVAL: Thomas Burnich, Chair Absent Don Gill, Vice C it SEAL: Pa es k, Board Member Carl Ge 1 o d emb Abse l//,/ rt, d David St rn, Board Member George KdIvin, Board Member ATTEST: Patrice Robinson, CMC Deputy Town Clerk Date: 1 3 -- 1 (0 -c;�0 \ 5 e ROLE OF CODE ENFORCEMENT BOARD 1. Board has jurisdiction to enforce all technical codes within the Town, including, but not limited to, business taxes, fire code, building code, zoning code and sign code. • The code enforcement officer may, at his or her discretion, enforce violations of the Town Code through the County Court system. 2. As set forth in Section 2-100 of the Town Code, "it shall be the duty of the code inspector to initiate enforcement proceedings of the various codes and ordinances; however, no member of the enforcement board . . . shall have the power to initiate such enforcement proceedings." Pursuant to state law and the Town Code, only the code enforcement officer may initiate formal enforcement proceedings through the issuance of a Notice of Violation. The code enforcement officer is required to give the violator a reasonable time to correct the violation. If the violation continues beyond the time established by the code enforcement officer, the code enforcement officer issues a Notice of Hearing, and the case is presented to the Board for a hearing. • If the violation is corrected and then recurs or if the violation is not corrected by the time specified for correction by the code enforcement officer, the case may be presented to the Board even if the violation has been corrected prior to the hearing. • If the code enforcement officer has reason to believe that the violation presents a serious threat to the health, safety and welfare, the code enforcement officer is required to only make a reasonable effort to notify the violator and may proceed directly to hearing. 3. When a case is presented, the Board hears testimony under oath from both the code enforcement officer and the violator. Formal rules of evidence do not apply; however, the proceedings must be governed by "fundamental due process." 4. At the conclusion of the evidentiary process, the Board issues its findings based on the evidence of record and conclusions of law. The order may include a notice that it must be complied with by a specified date and that a fine may be imposed if the order is not completed. In determining the amount of the fine (up to $250.00 per day for a first violation and up to $500.00 per day for a repeat violation), the Board shall consider the following factors: A. The gravity of the violation; B. Any actions taken by the violator to correct the violation; and C. Any previous violations committed by the violator. 5. In fulfilling its obligations, the Board has the following powers: Page 1 of 2 A. Adopt rules of conduct; B. Subpoena alleged violators and witnesses to its hearings; C. Subpoena evidence; D. Take testimony under oath; and E. Issue orders having the force of law commanding whatever steps are necessary to bring a violation into compliance. 6. The Board is quasi-judicial body. A quasi-judicial hearing may differ from a judicial hearing in procedure and formality, but it is like a judicial hearing in that it is a hearing on a specific matter where the body applies the existing law, through evidence produced at the hearing, to render its decision. The Board does not create policy; rather, it applies the existing laws and regulations adopted by the Town Commission to a specific set of facts or circumstances. • In its quasi-judicial role, the members of the Board must remain impartial; therefore, the Board must avoid any involvement in the code enforcement process. Communications with the code enforcement officer or the violator regarding a specific case that may come before the Board are "ex parte communications" that are inherently prejudicial and may form the basis for a challenge of the Board's decision. 7. The Board members, in their official capacity, may not provide direction to the code enforcement officer. While a Board member may, in his or her individual capacity, report a potential violation to the code enforcement officer, the member's involvement must end at that point. The Board member may only report a violation in the same manner as any other private citizen. The member may not direct the code enforcement officer to initiate proceedings or be involved in the enforcement process. As explained by the Attorney General in AGO 92-68: The initiation of the enforcement proceeding appears to begin with the code inspector's determination of whether a code violation has occurred. This presupposes that either the inspector has been informed or has observed an alleged violation. Chapter 162, F.S., however, does not specify a method by which the code inspector receives such notification. Furthermore, there is no prohibition against the inspector receiving complaints regarding the alleged violations from private citizens, public employees or members of the enforcement board acting in their private capacity. According, it appears that a member of the code enforcement board acting as a private citizen is not prohibited from alerting the code inspector to a potential violation of the local codes or ordinances. The code inspector then determines whether a violation occurs and, of so, initiates code enforcement proceedings against the violator. Page 2 of 2