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07/26/1995 MUNICIPAL CODE ENFORCEMENT BOARD July 26, 1995 Members present: Stephen D. Swanberg, Chair Louise C. Riley, Vice-Chair Dennis Henegar Helen Kerwin Carl Rayborn Peg Rogers Robert Theroux Also present: Robert J. Surette, Assistant City Attorney/Police Legal Advisor Lt. Jeff Kronschnabl, Special Asst. to the City Manager/Community Response Team Mark Connolly, Attorney for the Board Mary K. Diana, Secretary for the Board In order to provide continuity for research, the items will be listed in agenda order although not necessarily discussed in that order. The meeting was called to order by the Chairman at 3:00 p.m. in the Commission Meeting Room in City Hall. He outlined the procedures and advised any aggrieved party may appeal a final administrative order of the Municipal Code Enforcement Board to the Circuit Court of Pinellas County. Any such appeal must be filed within thirty (30) days of the execution of the order to be appealed. He noted that Florida Statute 286.0105 requires any party appealing a decision of this Board to have a record of the proceedings to support such an appeal. Case 23-95 (Contd. from 7/12/95) Loraine Javer 1005 Pine Brook Drive (Land Development Code) In a memorandum dated July 25, 1995, Inspector William Wright requested that Case 23-95 be withdrawn due to the property recently having been sold. UNFINISHED BUSINESS None OTHER BOARD ACTION / DISCUSSION Case 41-92 Arthur & Irene Passias 1378 Milton Street (Unsafe Building) Address Board Regarding Fine Arthur Passias stated he originally purchased the property as an investment. He said he worked to improve the property; however, did not have enough money to finish. Mr. Passias said the house is in a safe condition today. He expressed concern he owes $102,000 in fines and the house is only worth $50,000. He asked the board to dismiss the fine. Discussion ensued in regard to this case dating back to 1992 and what needed to be done to bring the structure into compliance with the code. Vern Packer, City Housing Inspector, provided background on this case. He said he received the first complaint concerning the subject building on November 20, 1991. Mr. Packer said he made the initial inspection due to several complaints citing the property because of its conditions as an unsafe structure. He noted this property has quite a history. Four building permits were issued for the structure; however, all expired for lack of inspections. Extensions had been granted and reactivated without fees. This case was brought before the board in 1992 because of non-compliance. He felt every attempt had been made by staff to work with Mr. Passias to bring the property into compliance. He indicated he made numerous calls and sent letters; however, there was not alot of communication after the Boards's order in 1992. On February 17, 1994, the property again was cited as an unsafe structure by City Housing Inspector Bill Wright. Mr. Wright indicated Mr. Passias requested an extension of time and on April 20, 1994 he was granted a 60 day extension. He reviewed the history of bringing the property into compliance. In April 1995, the owner asked for an inspection to get the property off the unsafe list and this was completed. On May 25, 1995, the structure was completed and complied with all building and housing codes. Photographs of the condition of the structure submitted into the record in 1992 were viewed by the board. Mr. Packer introduced additional photographs of the structure during phases of repair. Mr. Packer noted the house is now occupied. In response to a question, Mr. Packer said there had been some vandalism in the past four years due to it being vacant. Mr. Packer submitted additional photographs of the structure into evidence as City Exhibit A. Discussion ensued in regard to the amount of the fine and what costs were actually incurred in processing this case. The Board Secretary responded $250 was expended by the City Clerk Department; however, this did not include staff time. Mr. Packer indicated Mr. Passias paid the reinspection and appeal fees and for photographs. He said it is difficult to determine the number of trips made by staff to visit the site. In response to a question, Mr. Wright indicated in the past there had been reports from the Police Department of unwanted occupancy of the structure and several complaints from the neighbors because of the structure being accessible. Concerns were expressed regarding children entering the structure. Member Henegar moved to reduce the fine in Case 41-92 from $102,000 to $5,250. The motion was duly seconded. It was felt the neighborhood had in some respect been damaged due to the condition of the property, that the property could have been sold and the owner chose not to rectify the situation. Reducing the fine to $5,250 was believed to be fair. Upon the vote being taken, the motion carried unanimously. Case 20-95 Gary & Phillips Wood Patrick Media Group, Inc./CT Corp System, R.A. 1556 S. Ft. Harrison Avenue (Land Development Code) Request for Rehearing Attorney Surette stated Patrick Media's attorney is requesting a rehearing of the Board's order that was previously issued ordering compliance with the City's sign code. He said the board will also be considering Affidavits of Non-Compliance regarding the subject case. He referred to a letter that was sent to the Secretary of the Board by Patrick Media's attorney petitioning a rehearing and a letter of response from the attorney representing the City in its civil litigation involving Patrick Media. A question was raised if it is the board's responsibility to hear a request for a rehearing prior to an individual coming into compliance. Board Attorney Connolly said after reading the letters previously referred to, it is his understanding there is a summary judgement hearing on the civil litigation coming up on August 18, 1995, which should resolve the civil issues regarding the constitutionality of the ordinance. He said the board could consider continuing its decision on the petition for reconsideration until after the summary judgement hearing. He felt this would let the courts wash out the underlaying issues in the matter. The board could then take up the petition for reconsideration after the ruling on the constitutionality of the ordinances. Concern was expressed a ruling may not be made on August 18, 1995, and could take much longer. It was felt there was a good possibility there would be a ruling. The Board Attorney indicated by deferring the petition for reconsideration until that date the board has not prejudiced itself in anyway. Attorney Surette said it is the City's position that by deferring the petition today it would be prejudicing itself. The City has been involved in litigation with Patrick Media regarding the constitutionality of the sign code for over 1-1/2 years. The City has attempted to obtain compliance. There was a long amortization period to come into compliance, that period expired and Patrick Media/Wood filed a lawsuit which provided them an additional 1-1/2 year while the issues are litigated. The City believes their sign code is constitutional. Patrick Media had the opportunity to raise all issues when they appeared before the board previously. The record indicated there was an admission by the representative they were in violation of the city's sign code. An order was issued by the board for Patrick Media to comply by July 14, 1995, and an inspection has shown they still have failed to comply with the sign code. Mr. Surette felt what happens in August is irrevalent to the fact they are not in compliance. He found this petition for reconsideration an attempt to further delay compliance. Discussion ensued regarding the board's procedure of not considering requests for rehearing until compliance has been met. Inspector Michael Furlong said he did an onsite inspection of the property on July 17, 1995, and another this morning and the sign is still in place and non-conforming. In response to a question, he indicated the photo taken today has not been developed. Attorney Surette submitted into evidence, City Exhibit A, the July 17, 1995, photograph of the sign showing non-compliance with the Board's order of June 14, 1995. Don Hemke, attorney representing Patrick Media, said Patrick Media is not trying to delay the proceeding was prepared to go forward with the lawsuit on June 16, 1995. He said the city, rather than relying on the 1985 and 1989 ordinances, relied for the first time on a 1992 ordinance. He indicated the City's attorney gave serious consideration as to whether to suspend the motion for summary judgement due to this. The judge presiding at that hearing suggested continuing the hearing due to him being new to the case and with the change in the City's reliance. The continuance was agreeable to all parties. In response to questions, Mr. Hemke indicated the delay is a result of the 1992 ordinance that came up at the hearing. He said they are drafting a response to this ordinance and a hearing has been scheduled for August 18, 1995, and the challenge to the previous ordinances is the result of advertising, public notice, constitutionality and others. Attorney Surette said he has read the entire transcript from the June 16, 1995 hearing and there is nothing in the record to indicate this hearing was continued due to the 1992 ordinance. He said the judge, who was sitting in for the one assigned to the case, was overwhelmed by the complexity of the constitutional issues involved. It was felt it was better to have the judge assigned to the case to continue to hear it due to its complexity. He did not feel Attorney Hemke's representation regarding their total lack of surprise was not altogether accurate. He said what is happening in a separate litigation is unrelated to the fact there is a non-conforming sign. He felt the civil issue should be allowed to unfold and the fine issue could be taken up at a later date. A question was raised if a fine was imposed today, would there be a question as to due process. The Board's Attorney said in his opinion there would not be a due process issue. He said it is not unusual for a judge who is new to a case not ruling on a complex case if he is unaware of the issues. He felt the board delaying their decision today would be relatively minimal as there is not a great deal of money involved. He felt from reviewing the transcript of the hearing Patrick Media has a good faith basis for their attack on the ordinances. He indicated if the board now denied the petition to reconsider, there is nothing to keep the board from addressing this issue after the civil court renders its decision. In response to a request from the Chair, the Board Secretary read the Board's order of June 14, 1995. Mr. Hemke urged the board to use a common sense approach and defer imposing any fines until a ruling is rendered by the courts. It was felt the board has to assume that ordinances of the City of Clearwater are constitutional and anyone can challenge their constitutionality at any time. It was felt it would be selective enforcement to delay due to a challenge when others have already come into compliance with the sign code. Referring to the transcript, a question was raised why were variances applied for if it was felt the ordinances were unconstitutional. Attorney Hemke indicated usually all administrative remedies are exhausted before going through the court system. Discussion ensued in regard to accepting the Affidavit of Non-Compliance. The Board Attorney indicated the board can make a ruling either way without prejudicing the city's attorney in this case. Member Riley moved to accept the Affidavit of Non-Compliance concerning Case 20-95 and issued the order imposing the fine effective July 17, 1995, and to deny the request for rehearing until Gary & Phillips Wood, owner, and Patrick Media Group/CT Corp System, R.A., lessee, come into compliance or the ordinances are declared unconstitutional by the courts. The motion was duly seconded and carried unanimously. MINUTES - July 12, 1995 Member Riley moved to approve the minutes of July 12, 1995, in accordance with copies submitted to each Board member in writing. The motion was duly seconded and carried unanimously. ADJOURN The meeting adjourned at 4:12 p.m.