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06/27/2001 MUNICIPAL CODE ENFORCEMENT BOARD MEETING CITY OF CLEARWATER June 27, 2001 Present: Lawrence Tieman Vice-Chair – arrived 3:06 p.m. David Allbritton Member Sheila Cole Member Franke Huffman Acting Chair/Member Joyce Martin Member Peter Caffentzis Member Absent: Helen Kerwin Chair Also Present: Leslie Dougall-Sides Assistant City Attorney Elita Cobbs Attorney for the Board Sue Diana Secretary for the Board Brenda Moses Board Reporter The Acting Chair called the meeting to order at 3:03 p.m. at City Hall. To provide continuity for research, items are in agenda order although not necessarily discussed in that order. The Acting Chair outlined the procedures and stated any aggrieved party may appeal a final administrative order of the Municipal Code Enforcement Board to the Circuit Court of Pinellas County within thirty (30) days of the execution of the order. Florida Statute 286.0105 requires any party appealing a decision of this Board to have a record of the proceedings. 1. PUBLIC HEARINGS Case 42-00 A. (Cont. from 1/24/01) William, Michael & Assoc. Inc (Philip J. Matonte, RA) 307 Leeward Island (building) – Chaplinsky Assistant City Attorney Leslie Dougall-Sides said the applicant has submitted plans to the Building Department for review. The case will be dismissed at the next meeting if the plans are determined sufficient. Staff requests Case 42-00 be continued. motion Member Cole moved to continue Case 42-00 to the next meeting. The carried was duly seconded andunanimously. Case 18-01 B. (Cont. from 5/23/01) Anthony Wichlenski Enterprise Landscape & Tree c/o Patrick J. Planthaber 3013 Geiger Court mcb0601 06/27/01 1 (tree permit; tree spikes) – Kurleman Ms. Dougall-Sides said staff would like to present Cases 18-01, 19-01, and 20-01 simultaneously as they involve the same company. The petitioner agreed. Board Secretary Diana read the affidavit of violation and request for hearing. She reported service was obtained on the notices of hearing. In response to a question from Ms. Dougall-Sides, Attorney Michael Mesa, representative, said Enterprise Landscape & Tree is a corporation. Patrick J. Planthaber is not a part of this hearing. Ms. Dougall-Sides noted the notice of violation only listed Anthony Wichlenski of Enterprise Landscape & Tree. Mr. Mesa, on behalf of his client, admitted to the violations except he disagreed that the damage done to the trees due to the use of spikes was irreparable and irreversible in nature. In response to questions from Ms. Dougall-Sides, Inspector Scott Kurleman said in August 1996, Enterprise Landscape & Tree was cited 14 separate times. He said he has gone the extra mile to approve permits for the company on the spot, but they continue to violate City code. He said the 14 violations involved a fine through Pinellas County Court, which was paid. He recommended the Board impose the maximum $5,000 fine for the illegal removal of 7 trees and $1,000 for each tree that was damaged by the use of spikes. Mr. Kurleman said the minimum damage would have been $5,800 if the City’s calculation for such damage were imposed. Ms. Dougall-Sides said Section 7-103(a) of the Code states that if the Board fines a violation to be irreparable or irreversible, the maximum fine is $5,000. Allen Mayberry, City Urban Forestry Manager and certified arborist, presented a sample of a tree spike for illustration purposes. He said tree spikes should never be used on a live tree unless it is being removed. The spikes produce a wound in the tree that penetrates the bark. He said the wound stays with the tree forever and does not heal, but grows other compartments around it. The tree will decay as the spike disrupts the tree’s ability to manufacture food and survive in a drought environment. In response to a question, Mr. Kurleman said of the 7 trees removed, 6 were pines and 1 was an oak. Four pine trees and approximately 6–7 oak trees were spiked. In response to questions from Mr. Mesa, Mr. Mayberry said none of the trees have died due to the use of spikes. He said tree death does not occur overnight. Spiking causes chronic stress and decay spreads into the sapwood. He said smaller tree spikes could produce less damage. Ms. Dougall-Sides submitted City Exhibit 1. In response to a question, Mr. Kurleman said there were no permits for the trees that were removed. Mile Tubic, AllGreen Tree Experts, said he operates a tree company in Florida and is licensed. He has been in the business for 24 years and was licensed in other states. He said after reviewing photographs of the spiked trees, he felt damages to the trees were minimal. He said a portion of the tree grows over the injured area and the Cambrian layer can heal itself. He said he saw no fungus or anything that would mcb0601 06/27/01 2 indicate future decay or death. He said the trees will bleed somewhat and there is a possibility that fungus could set in, but he felt the trees were in good shape. He said he noticed many City Hall palm trees with spikes that are not decaying or dying. He said the spike introduced by staff might not be the one the petitioner used. Some Washingtonian palms are trimmed with the use of spikes due to their enormous heights. He was of the opinion that none of the subject trees would be lost due to spiking, however they could die due to the drought. He did not feel the damage to the subject trees is irreversible. In response to a question, Mr. Tubic said he is not a certified arborist. He is licensed to perform landscaping services including trimming trees. He said there is a difference in trees in northern states, but hardwoods are similar. He said most of the photographs he saw were of oak trees, which are hardwoods. He said the only trees he saw that were spiked were oaks. Mr. Kurleman said 4 of the trees in the backyard that were spiked are pine trees. In response to a question, Mr. Kurleman said had the petitioner obtained proper permits in advance to remove the trees, they would have been required to replace them according to Code. There are no trees left in the back yard. He was told the trees had sustained storm damage, but there was no indication of that claim. Code still requires storm damaged trees be replaced. In response to a question, Mr. Tubic agreed it is not considered professional to use spikes on live trees. He said 19 years ago, spikes were still used on trees. He was unsure when the use of spikes was discontinued. Ms. Dougall-Sides said spikes stopped being used approximately 10 years ago. Ms. Dougall-Sides said Mr. Tubic has testified he is not a certified arborist. She said testimony proves illegal removal of trees with no permits and the use of spikes on live trees clearly caused damage to the trees. She said the homeowner has not been cited for these violations. Mr. Mesa said his client does not deny the violations. They have been in the business for awhile. He said they are frequently asked to perform services for residents who have sustained storm damage to trees and request they be removed. He felt sure if his client had applied for tree removal permits, they would have been denied. He felt the use of tree spikes cannot definitively indicate the trees would die. He said his clients are purchasing a bucket truck to avoid the use of spikes in the future. He said his witness has indicated tree spikes can cause damage but trees are not always subject to dying or further irreparable damage. He said the sample tree spike provided to the Board today is not the type used by his client. He requested a reduction in the fine, as his clients would be forced to go out of business if the maximum fines were imposed. Member Caffentzis moved that the Municipal Code Enforcement Board has heard testimony at its regular meeting held on June 27, 2001, and based on the evidence issued its Findings of Fact, Conclusions of Law, and Order as follows: The Municipal Code Enforcement Board has heard testimony at its regular meeting held on June 27, 2001, and based on the evidence issued its Findings of Fact, Conclusions of Law, and Order as follows: mcb0601 06/27/01 3 FINDINGS OF FACT After hearing testimony of Code Inspector Scott Kurleman and Urban Forester Alan Mayberry for City, and Attorney Michael Mesa and Expert Witness Mile Tubic for Respondent, and viewing the evidence, City Exhibit 1 – photos of undamaged trees in adjacent yard, stumps of trees removed and tree bark after use of tree spikes and Defendant Exhibit 1 – photos depicting condition of tree bark and trees after use of tree spikes, it is evident the property is in violation of Section(s) 4-1201 and 52.10(1)(2) of the Code. CONCLUSIONS OF LAW The Respondent by reason of the foregoing is in violation of Section(s) 4-1201 and 52.10(1)(2) of the Code of the City of Clearwater, Florida, for the removal of seven large pines and the illegal use of tree spikes at the above-referenced residence. ORDER It is the Order of the Board that the Respondent be ordered to pay a fine in the amount of five thousand and no/100 dollars ($5,000) for the removal of seven trees and two hundred fifty and no/100 dollars ($250.00) for the illegal use of tree spikes, resulting in a total fine of five thousand two hundred fifty and no/100 dollars ($5,250.00) payable within 30 days. If Respondent does not comply with the Board’s Order regarding payment of the fine within thirty days, a certified copy of the Order imposing the fine will be recorded in the Public Records of Pinellas County, Florida, and once recorded shall constitute a lien against any real or personal property owned by the Respondent pursuant to Chapter 162 of the Florida Statutes. Any aggrieved party may petition the Board to reconsider or rehear any Board Order resulting from a public hearing. A petition for rehearing must be made in writing and filed with the Board Secretary no later than thirty days after the execution of the Order and prior to the filing of any appeal. Upon receipt of the petition, the Board will consider whether or not to reconsider or rehear the case. The Board will not hear oral argument or evidence in determining whether to grant the petition to reconsider or motioncarried rehear. The was duly seconded and unanimously. Case 19-01 C. (Cont. from 5/23/01) Anthony Wichlenski Enterprise Landscape & Tree c/o Patrick J. Planthaber 3007 Geiger Court (tree spikes) – Kurleman AND Case 20-01 D. (Cont. from 5/23/01) Anthony Wichlenski Enterprise Landscape & Tree c/o Patrick J. Planthaber 2986 Farnham Way (tree spikes) – Kurleman mcb0601 06/27/01 4 Member Tieman moved that the Municipal Code Enforcement Board has heard testimony at its regular meeting held on June 27, 2001, and based on the evidence issued its Findings of Fact, Conclusions of Law, and Order as follows: The Municipal Code Enforcement Board has heard testimony at its regular meeting held on June 27, 2001, and based on the evidence issued its Findings of Fact, Conclusions of Law, and Order as follows: FINDINGS OF FACT After hearing testimony of Code Inspector Scott Kurleman and Urban Forester Alan Mayberry for City and Attorney Michael Mesa and Expert Witness Mile Tubic for Respondent, and viewing the evidence, City Exhibit 1 – photos depicting condition of tree bark after use of tree spikes and Defendant Exhibit 1- photos depicting condition of tree bark and trees after use of tree spikes, it is evident the property is in violation of Sections 4-1201 and 52.10(1)(2), of the Code. CONCLUSIONS OF LAW The Respondent by reason of the foregoing is in violation of Sections 4-1201 and 52.10(1)(2), of the Code of the City of Clearwater, Florida, for the illegal use of tree spikes at the above-referenced residences. ORDER It is the Order of the Board that the Respondent be ordered to pay a fine in the amount of two hundred fifty and no/100 dollars ($250.00) for the illegal use of tree spikes at each above-referenced residence resulting in a total fine of five hundred and no/100 dollars ($500.00) payable within 30 days. If Respondent does not comply with the Board’s Order regarding payment of the fine within thirty days, a certified copy of the Order imposing the fine will be recorded in the Public Records of Pinellas County, Florida, and once recorded shall constitute a lien against any real or personal property owned by the Respondent pursuant to Chapter 162 of the Florida Statutes. Any aggrieved party may petition the Board to reconsider or rehear any Board Order resulting from a public hearing. A petition for rehearing must be made in writing and filed with the Board Secretary no later than thirty days after the execution of the Order and prior to the filing of any appeal. Upon receipt of the petition, the Board will consider whether or not to reconsider or rehear the case. The Board will not hear oral argument or evidence in determining whether to grant the petition to reconsider or motioncarried rehear. The was duly seconded and unanimously. Case 21-01 E. (Cont. from 5/23/01) Andrew A. Sweeney 2359 Moore Haven Drive East (building permit) – Doherty This property is in compliance. According to Section 7-102(c) of the Code, if the violation is not repeated within the next 6 months, the case will be withdrawn. mcb0601 06/27/01 5 motion Member Tieman moved that Case 21-01 be continued for 6 months. The carried was duly seconded and unanimously. Case 26-01 F. Irfan & Advije Ismaili 620 S. Betty Lane (stairs & railings) - Wright AND Case 27-01 G. Irfan & Advije Ismaili 622 S. Betty Lane (stairs & railings) - Wright Inspector William Wright is requesting a continuance as the owner’s contractor is working towards compliance. Member Tieman moved that Cases 26-01 and 27-01 be continued to the next motioncarried meeting. The was duly seconded and unanimously. Case 28-01To be dismissed & recited H. - . Richard R. Dimmitt 25191 US19N (grass parking) - King motion Member Tieman moved that Case 28-01 be dismissed and recited. The carried was duly seconded and unanimously. Case 29-01 I. Sonny's Super Service Stations, Inc. 1310 Cleveland Street (sign) - Fox Ms. Diana read the Affidavit of Violation and Request for Hearing. She reported service was obtained by posting the notice of hearing on the property. Ms. Dougall-Sides said the City is dismissing 2 of the 3 violations cited and citing only the violation that falls under Section 3-1803.Y. In response to questions from Ms. Dougall-Sides, City Inspector Mary Jo Fox said the property was initially inspected on August 3, 2000. There was a freestanding gasoline price sign on the property near the street. Ms. Fox said there is no indication that permits were issued for that sign. The building has been vacant for at least a year. The sign exceeds the allowable height maximums provided for in both the former and the current Code. The sign face area is compliant. A notice of violation was issued on January 22, 2001 sent via certified and regular mail. Service was obtained on the certified mail. Ms. Fox said she spoke to the mcb0601 06/27/01 6 property owner who indicated the sign had been there for a long time. The owner has no intention of doing anything. As of this morning, the sign remains on the property. Ms. Dougall-Sides submitted City Exhibits 1 – 7, photographs of the sign. In response to a question, Ms. Fox said the property owner appears to have abandoned the property. Other signs were removed and an address number replaced, but no other maintenance has been done. Ms. Fox did not know if the property was for sale. Ms. Fox said the problem came to her attention through a citizen complaint. She said removal of a sign does not require a permit. Member Caffentzis moved that the Municipal Code Enforcement Board has heard testimony at its regular meeting held on June 27, 2001, and based on the evidence issued its Findings of Fact, Conclusions of Law, and Order as follows: The Municipal Code Enforcement Board has heard testimony at its regular meeting held on June 27, 2001, and based on the evidence issued its Findings of Fact, Conclusions of Law, and Order as follows: FINDINGS OF FACT After hearing testimony of Code Inspector Mary Jo Fox for City, (the Respondent was not present and had no representation), and viewing the evidence, City Exhibits 1-7 (Ex. 1 – notice of violation ; Ex. 2 – sign amortization letter; Ex. 3 – applicable code sections; Ex. 4 – property appraiser printout; Ex. 5 - affidavit of violation & request for hearing; Ex. 6 - notice of hearing; and Ex. 7 – photos of sign dated 8/3/00 and 2/25/01, it is evident the property is in violation of Section(s) 3-1803.Y of the code. CONCLUSIONS OF LAW The Respondent by reason of the foregoing is in violation of Section(s) 3-1803.Y of the Code of the City of Clearwater, Florida, in that the Respondent has failed to remedy the cited violation(s). ORDER It is the Order of the Board that the Respondent is to correct the aforesaid violation by July 20, 2001. The burden shall rest upon the Respondent to request a reinspection by the Code Inspector to verify compliance with this Order. In the event the aforesaid violation is found, in subsequent proceedings by this Board, not to have been corrected on or before July 20, 2001, the Respondent may be ordered to pay a fine in the amount of one hundred and no/100 dollars ($100.00) per day for each day the violation continues beyond July 20, 2001. If Respondent does not comply within the time specified, a certified copy of the Order imposing the fine may be recorded in the Public Records of Pinellas County, Florida, and once recorded shall constitute a lien against any real or personal property owned by the Respondent pursuant to Chapter 162 of the Florida Statutes. Any aggrieved party may petition the Board to reconsider or rehear any Board Order resulting from a public hearing. A petition for rehearing must be made in writing and filed with the Board Secretary no later than thirty days after the execution of mcb0601 06/27/01 7 the Order and prior to the filing of any appeal. Upon receipt of the petition, the Board will consider whether or not to reconsider or rehear the case. The Board will not hear oral argument or evidence in determining whether to grant the petition to reconsider or motioncarried rehear. The was duly seconded and unanimously. 2. UNFINISHED BUSINESS Case 12-01 - Affidavit of Compliance A. Willie Spake 1454 Park Street (building) - Wright AND Case 14-01 - Affidavit of Compliance B. Hardees Lease Prtnr 1980 (4930-0027) 2551 Gulf to Bay Blvd. (tree removal permit) - Kurleman AND Case 17-01 - Affidavit of Compliance C. Luby's Restaurants Ltd. Partnership 2599 Gulf to Bay Blvd. (landscape) – Kurleman Member Tieman moved to accept the affidavits of compliance for Cases 12-01, motioncarried 14-01, and 17-01. The was duly seconded and unanimously. Case 22-01 - Affidavit of Non-Compliance re obtaining permit D. . John S. Lynn c/o Jeralne C. Burt 1109 Tangerine Street (Housing) – Rosa AND Case 24-01 - Affidavit of Non-Compliance re obtaining permit E. . Jeralne C. Burt and Errol J. Kidd 1113 Tangerine Street (Housing) – Rosa Member Tieman moved to accept the Affidavits of Non-Compliance and issue the motion orders imposing the fines for Cases 22-01 and 24-01. The was duly seconded carried and unanimously. 3. OTHER BOARD ACTION/DISCUSSION A. Request to Address Board re fine at July meeting Case 07-98 & 30-98 Maria Smith-Pernell for Mary W. Smith 1111 Blanche B. Littlejohn Trail mcb0601 06/27/01 8 (housing / building) - Hinson / Chianella In response to a question, Ms. Diana said the Board is to decide if they will grant the petitioner’s request to address the Board regarding the fine today, not to hear the case. Member Caffentzis moved to approve the petitioner’s request to address the motioncarried Board regarding the fine. The was duly seconded and unanimously. Agendaed for July 25, 2001. 4. NEW BUSINESS - None. 5. NUISANCE ABATEMENT LIEN FILINGS Giant Oil Inc COD2001-01193 509 Bayview Avenue $ 200.00 McMullens Bayview, Blk 3, Lot 2 and 1/2 vacant alley on North Steven Schwartz COD2001-01206 804 North Myrtle Avenue $ 294.50 Ira E. Nicholsons Addition, Blk 1, Lot 10 less Street Gwendolyn Taplin COD2001-01214 703 Nicholson Street $ 250.00 Ira E. Nicholsons Addition, Blk 1 Lot 13 Bulmaro Garcia COD2001-02336 & 02339 112 Meadow Lark Lane $ 200.00 Bay View City Sub, Blk 1, S80.7' of Lots 5 and 6 Member Tieman moved to accept the Nuisance Abatement Lien Filings as listed. motioncarried The was duly seconded and unanimously. 6. APPROVAL OF MINUTES - 5/23/01 Member Tieman moved to continue approval of the May 23, 2001, minutes to the motioncarried next meeting. The was duly seconded and unanimously. 7. ADJOURNMENT The meeting adjourned at 4:39 p.m. mcb0601 06/27/01 9