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02/27/2002MUNICIPAL CODE ENFORCEMENT BOARD MEETING CITY OF CLEARWATER February 27, 2002 Present: Lawrence Tieman Chair Sheila Cole Vice-Chair Franke Huffman Member David Allbritton Member Joyce Martin Member Kevin Teismann Member George Krause Member Also Present: Leslie Dougall-Sides Assistant City Attorney Elita Cobbs Attorney for the Board Cynthia E. Goudeau City Clerk/Acting Secretary for the Board Brenda Moses Board Reporter The Chair called the meeting to order at 3:00 p.m. at City Hall. To provide continuity for research, items are in agenda order although not necessarily discussed in that order. The 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. PUBLIC HEARINGS A. Case 42-01 – Contd. from 1/23/02 Richard A. Hoffman and Maxine I. Nordmann 1919 Kings Highway (Building Code) – Coccia Withdrawn Per Section 47.083(2) and 47.111 of the Community Development Code, as the property was corrected prior to the January 23, 2002 meeting, the case was automatically continued to this meeting. As no recurrence of the violation has occurred, this case was withdrawn. Case 45-01 – Contd. from 1/23/02 Irene L. McClimans 1209 Edenville Avenue (Building Code) – Coccia Acting Board Secretary Goudeau read the affidavit of violation and request for hearing. It was noted Ms. McClimans was not present at today’s hearing and had no representation. She was at the initial hearing in November. She was notified of today’s hearing by certified and regular mail; only the certified mail was returned undelivered. Assistant City Attorney Leslie Dougall-Sides said this case was heard at the December 2001 meeting and no finding was issued. The case involved an above ground pool being installed in-ground. The Board continued the case to the January 2002 meeting at which time it was determined that a permit had been issued with the contingency that the property owner would obtain an engineer’s letter stating the pool could be sunk in-ground. Today’s hearing was scheduled to allow the property owner to pay the appropriate permit fees and obtain final inspections and approval. City Inspector Mike Coccia said Ms. McClimans called the City to schedule a final pool inspection on February 6, 2002. The pool failed to pass inspection due to electrical and pool safety violations. Inspector Michael Hurley cited Ms. McClimans for pool safety issues which involved a fence without a self-closing/self-latching gate. The handles of the fence must be 54 inches above windows and the doors must have alarms. The pool pump has been placed in a pit within approximately 1 – 2 feet of the pool. Pool pumps must be a minimum of 5 feet from the water line. No underground electrical inspection was done as there was no access to electrical breakers the day of the inspection. Ms. Dougall-Sides submitted City Exhibits 1, photographs of the property. Ms. Dougall-Sides requested the Board make a finding on the case as it has been 2 months since the original hearing and safety issues are pending. In response to questions, Inspector Coccia said the initial violation involves 2 parts; 1) the lack of permits, and 2) the lack of inspections for the work done. Mr. Coccia said the property owner has not contacted the City regarding any attempts to correct the violation since February 6, 2002. Mr. Coccia said guidelines for residential swimming pools are handed to applicants along with pool permits. He said most contractors are aware of City Code with respect to above ground and in-ground pools. He said Ms. McClimans could retrofit the existing fence to meet those Code regulations. Concern was expressed the City is asking the Board to rush into a judgement of violation when the citizen has not had an opportunity to finish the work. Mr. Coccia said this case started in August 2001. The safety violations need to be addressed immediately. He said a pool typically would not be filled with water until it passed inspection. It was remarked this case is a unique one, as the above ground pool had to be filled with water to create pressure on the retaining wall. In response to a question, Mr. Coccia said he did not know if Ms. McClimans contacted an electrician for the electrical work. It was remarked that Ms. McClimans obtained a permit and purchased the pool from a reputable pool company. She has experienced problems and is not finished with the project, yet the City is requiring her to finish it quickly. A comment was made that the Code has no time requirement for the completion of such a project. Board Attorney Elita Cobbs said the Code simply states that a property owner must call for required inspections and pass them, and that corrections must be made in a timely fashion. It is unclear, however, as to time frames for completion. She said the cleanest method to a resolution would be to find Ms. McClimans in violation of the Code. Ms. Dougall-Sides said the Correction Notice issued on February 6, 2002, by the City Inspector stated that Ms. McClimans must make the necessary corrections within 15 days. Code implies a final inspection would have to be timely. Member Cole moved that the Municipal Code Enforcement Board has heard testimony at its regular meetings held on November 28, 2001, January 23, 2002, and February 27, 2002, and based on the evidence issued its Findings of Fact, Conclusions of Law, and Order as follows: FINDINGS OF FACT: After hearing testimony of Mike Coccia for City and Irene L. McClimans, respondent, and viewing the evidence, City Exhibits 1-9 (submitted at the 11/28/01 hearing) [1) Notice of Violation & Order to Stop Work dated 9/21/01; 2) Notice of Violation; 3) Affidavit of Posting; 4) Copies of Code Sections Chapter 47, Article IV, Section 47.083(2) and Article V, Section 47.111 of the Clearwater City Code of Ordinances; 5) legal description; 6) Information Summary; 7) Affidavit of Violation and Request for Hearing; 8) Notice of Hearing; and 9) photographs showing violation] and Exhibits 1 (submitted at the 2/27/02 hearing) photos depicting the location of the pool pump, condition of the fence without self-closing doors and self-latching handles, views of pool with tarp on and off, and lack of door handles 54 inches above grade, it is evident the property is in violation of Section(s) 47.083(2) and 47.111 of the Code in that work on the installation of an above ground pool was started before a permit was issued and no inspection was done. CONCLUSIONS OF LAW: The Respondent by reason of the foregoing is in violation of Chapter 47, Article IV, Section 47.083(2) and Article V, Section 47.111 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 March 29, 2002. 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 March 29, 2002, the Respondent may be ordered to pay a fine in the amount of Fifty dollars ($50.00) per day for each day the violation continues beyond March 29, 2002. 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. Should the violation reoccur, the Board has the authority to impose the fine at that time without a subsequent hearing. 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 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 rehear. The motion was duly seconded. Upon the vote being taken, Members Cole, Teismann, and Krause and Chair Tieman voted “aye”; Members Allbritton, Huffman, and Martin voted “nay”. Motion carried. Case 07-02 Debra Kagan Ward 1148 N.E. Cleveland Street (Building Code) – Coccia In response to questions from Ms. Dougall-Sides, Inspector Coccia said this single-family residential property was initially inspected on November 5, 2001, due to an anonymous complaint received. A wooden fence was installed without permits or inspections. A Notice of Violation was issued on December 4, 2001. Mr. Coccia said he has had no subsequent contact with the property owner. As of this morning, the property remains in violation. A permit had been issued on February 13, 2002, for a fence, however upon inspection, it was discovered the fence was placed in a different location than the drawings submitted with the application. Ms. Goudeau said the property owner had received the Notice of Hearing via certified mail. In response to a question, Mr. Coccia said the property owner has had a contractor pull a permit. The scheduled final inspection for the fence failed yesterday. It was remarked that since the property owner had the fence constructed, called for a final inspection, and failed that inspection, she should be re-cited. Concerns were expressed that typically once a permit is obtained, the applicant has six months to complete the work. Member Huffman moved to continue Case 07-02 to the March 27, 2002, meeting. The motion was duly seconded and carried unanimously. D. Case 04-02 James Ficken Tre Old Bay Trust 5/30/95 1608 N. Osceola Avenue (Public Nuisance Appeal) – Phillips Ms. Dougall-Sides said this is a public nuisance appeal procedure. The Code provides that in nuisance appeal cases, the appellant must show the condition did not exist, otherwise the appeal could be remedied by the City at the expense of the appellant. The appellant would make a statement, present evidence, and the City Inspector would address the appeal. She stated a third Notice of Violation was issued for an exterior storage violation, which is not before the Board today. Cases 04-02 and 05-02 involve a lot clearing and an inoperative vehicle violation. In response to a question, Ms. Dougall-Sides said the appropriate notices were posted on the property on November 16, 2001, for the lot clearing case, and on November 6, 2001 for the inoperable vehicle violation. The City could abate the nuisances unless the Board determines otherwise. City Inspector Julie Phillips said as of yesterday, both violations still exist. James Ficken, appellant, suggested that because the Notice of Violation he received lists the violation address as 1608 North Osceola, and the vehicle is located at 1606 North Osceola Avenue, the case be dismissed. He did not agree the vehicle is in violation of the Code. Mr. Ficken said he felt these cases were not about nuisances but are cases of malicious prosecution by City officials. In response to a question, Mr. Ficken said he did not agree the vehicle is inoperable. He said the engine turns over when connected to a battery. He is replacing the battery and fixing the flat tire. He said the vehicle has no current license tag. He referred to photographs of the vehicle at 1606 North Osceola Avenue from various viewpoints. He stated that Code Inspectors do not like him because he protests the way they do their jobs. He suggested the City should police front yards, not inspect private residents’ back yards. Mr. Ficken began to show photographs of other properties in the area that he felt had similar alleged Code violations. The Chair explained that the Board would review only the two cases involving Mr. Ficken on the docket today. Mr. Ficken said the vehicle can be moved, is not a nuisance, is behind a fence and a tree, cannot be seen from the street, and therefore has zero effect on citizens. In response to a question, Ms. Dougall-Sides reviewed the applicable sections of the Code which define “inoperable vehicles”. She felt Mr. Ficken was possibly misreading the first general section of the Code. She said Mr. Ficken admitted that some parts are missing from the vehicle, which would render it inoperable. Ms. Dougall-Sides submitted City Exhibit 1, photographs of the property. Inspector Phillips said the vehicle appears to have been in an accident. The tag had expired in 1999. Ms. Dougall-Sides said in nuisance cases, the first notice of violation is issued and the violation is presumed to be a nuisance. The appellant has the right to prove the violation does not exist, or why it should not be remedied. In response to a question, Inspector Phillips said the violation was issued upon inspection of the property. An anonymous complaint had been received. In response to a question, Mr. Ficken said he was the owner of the vehicle. He said the vehicle had been at its current location for approximately 6 months. He plans to repair and sell it after replacing the battery and fixing the flat tire. He has not put the vehicle up for sale. Upon further questioning, Mr. Ficken said he has not transferred the vehicle title from Debra Lester, the previous owner. Member Huffman moved to deny the appeal of Case 04-02. The motion was duly seconded and carried unanimously. Case 05-02 James Ficken Tre Clearwater Res Trust 1608 N. Osceola Avenue (Public Nuisance Appeal) - Phillips Mr. Ficken presented photographs of various views of the property. He said there is a small patch of weeds behind a bougainvillea bush. He said the total amount of weed area is approximately 70 square feet on a 7,000 square foot lot, or 1% of the total property size. He said the weeds are not visible from the street, and therefore not a nuisance. He said the weeds do not harbor vermin. There may be a few weeds that may be 12 or 13 inches high. He did not understand the alleged growth over the street curb. He requested the case be dismissed. Inspector Philips reviewed photographs of the overgrowth from various views, City Exhibit 1. Inspector Phillips said some of the overgrowth exceeds 12 inches in height. She said Mr. Ficken cleared some of the overgrowth by the driveway in the back of the house when the property was originally cited. In response to a question, Ms. Phillips said the Code does not specify a space requirement or ratio of overgrowth to property size that would dismiss the violation. As of yesterday, the property was found to be in violation. Mr. Ficken said the alley along his property serves four families. He said it should be distinguished from a road. Ms. Dougall-Sides said the definition of right-of-way in the Code refers to a strip of land intended for use for pedestrian or vehicular travel, whether public or private. It was remarked that the violation appears to be minor and could have been corrected within a few hours. Mr. Ficken said his lawnmower was stolen. He said he is a believer of private property rights and feels the government is one of the worst offenders. He said he is trying to address the erosion that government is causing private property owners. Mr. Ficken reviewed the City’s photographs of the property. He said some of the weeds are periwinkle/vinca plants, which are plants encouraged by SWFWMD (Southwest Florida Water Management District) for their drought tolerance. The remainder of the yard is Bahia grass. He said 99% of the property has plantings that were used and encouraged by SWFWMD to conserve water. He has xeriscaped a desert area of the property with vincas, which can reach up to 12 inches at height on occasion. Most of the weeds in the City’s photographs are at 1606 North Osceola Avenue. He stated he is the property owner and can instruct the residents at that address to address those weeds. One Board member expressed sympathy about the growth exhibited in the photographs was the best that could be planted under the existing conditions, however, he felt there are portions of the property that are clearly dried weeds. Concern was expressed that the property owner and the City could not work together to resolve the matter before coming to the Board. In response to a question, Ms. Dougall-Sides said should the Board grant the appeal, the case would be dismissed and the City would not be permitted to trim the overgrowth and weeds unless the case was re-cited. In response to a question, Development Services Director Jeff Kronschnabl said staff normally allows the appellant 10 days for removal of a vehicle that is inoperable. Staff works with property owners who are willing to comply with the Code. Inspector Phillips said the property owner would receive a Notice of Violation in the mail, which states that compliance must be met within 5 days, however, generally 10 days is allowed. This case has been on the books for 3 months. Member Martin moved to deny the appeal of Case 05-02. The motion was duly seconded. Upon the vote being taken, Members Martin, Cole, Huffman, Krause, Allbritton, and Chair Tieman voted “aye”; Member Teismann voted “nay”. Motion carried. 2. UNFINISHED BUSINESS A. Cases 07-98 & 30-98 – Status Report Maria Smith-Pernell for Mary W. Smith 111 Blanche B. Littlejohn Trial (Housing & Building Codes) – Wright City Inspector Bill Wright updated the Board on Cases 07-98 and 30-98. He said the driveway was completed on February 5, 2002. He spoke to Ms. Smith-Pernell, the owner’s daughter, on January 25, 2002, at which time she said she is still working toward having the underground tank removed through the Brownfields program. In response to a question, Ms. Cobbs said the Board could dismiss the case and grant Ms. Smith-Pernell the right to come back to the Board for an appeal of reduction in fines. Mr. Wright said she has met all the other required criteria. Ms. Dougall-Sides suggesting not reducing the fine below the City’s administrative costs. Member Huffman moved to reduce the fines for Cases 07-98 and 30-98 to the City’s administrative costs. The motion was duly seconded and carried unanimously. B. Case 02-01 Request for Reduction of Fine Juan & Mark J. Costa 612 S. Duncan Avenue (Building Code) – Coccia Ms. Goudeau read into the record a letter from Juan Costa dated December 19, 2001. She said the Board had granted him the right to present his case for reduction of fine. Inspector Coccia said the property is now in compliance. The Community Response Team’s administrative costs total $583. Ms. Goudeau said the total fine levied was $12,150. The City Clerk’s administrative costs total $500. In response to a question, Mr. Coccia said the violation for a bathroom addition occurred approximately one year ago. The property owner came into compliance in October 2001. Ms. Goudeau said there were 243 days of noncompliance. Mr. Costa said it took 3 months to find a contractor and additional time to obtain blueprints, permits, and the necessary paperwork for the City. He said he has no money because he also has to fix his floor due to flooding problems he feels the City caused. He requested the Board reduce his fine as much as possible. Member Cole moved to reduce the fine to $3,000. The motion was duly seconded. It was remarked that nonpayment of the fine would result in a lien on the property. No timeframe was attached to payment of the fine, however it was noted that the lien would be due upon the sale of the property if it were not paid prior to sale. Upon the vote being taken, the motion carried unanimously. C. Case 01-01 – Affidavit of Compliance David & Catherine F. Jones 1200 Melonwood Avenue (Building Code) – Coccia D. Case 41-01 – Affidavit of Compliance Loni J. Shutler 2731 Poppyseed Court (Building Code) – Coccia E. Case 15-01 – Affidavit of Compliance Clearwater Moose Lodge 1030 1101 Cleveland Street (Development Code) - Kurleman Member Huffman moved to accept the Affidavits of Compliance for Cases 01-01, 41-01, and 15-01. The motion was duly seconded and carried unanimously. F. Case 44-01 - Affidavit of Non-Compliance American Infoage 505 Virginia Lane (Development Code) - Kurleman Member Cole moved to accept the Affidavit of Non-Compliance and issue the order imposing the fine for Case 44-01. The motion was duly seconded and carried unanimously. OTHER BOARD ACTION/DISCUSSION A. Case 01-01 - Request to address board at future meeting re fine reduction David & Catherine F. Jones 1200 Melonwood Avenue (Building Code) – Coccia Ms. Goudeau said the total amount of the fine is $17,150. It was remarked that the Board has an obligation to hear the circumstances behind the request to reduce the fine. It was remarked that allowing the request for reduction of fine to be heard does not mean that the Board would reduce the fine. Member Huffman moved to grant the request to address the Board at the next meeting regarding reduction of fine in Case 01-01. The motion was duly seconded and carried unanimously. B. Case 41-01 - Request to address board at future meeting re fine reduction Loni J. Shutler 2731 Poppyseed Court (Building Code) – Coccia Ms. Goudeau said the total fine for Case 41-01 is $7,900. Member Huffman moved to grant the request to address the Board at the next meeting regarding reduction of fines in Case 41-01. The motion was duly seconded and carried unanimously. C. Case 15-01 – Request to address board at future meeting re fine reduction Clearwater Moose Lodge 1030 1101 Cleveland Street (Development Code) - Kurleman Ms. Goudeau said the total fine for Case 15-01 is $19,400. Member Teismann moved to grant the request to address the Board at the next meeting regarding reduction of fine in Case 15-01. The motion was duly seconded and carried unanimously. 4. NEW BUSINESS – None. 5. NUISANCE ABATEMENT LIEN FILINGS S. P. Greenwood COD2001-05210 413 Ewing Avenue $ 295.00 Coachman Heights Rev, Blk D, Lots 6 and 7 Bernard A. and Anna M. Hawk COD2001-04326 700 South Highland Avenue $ 250.00 Breeze Hill, Blk D, Lot 1 less road on East Mary Rogero COD2001-03771 1125 Brownell Street $ 260.00 Moase & Harrison, Blk 2, Lot 7 less S50' for St Theresa Panfili COD2001-04040 1459 Court Street $ 265.00 Breeze Hill, Blk A, Lot 6 S & P Properties COD2001-04399 1180 Cleveland Street $ 336.00 Gibsons Clearwater Heights, Lots 4 to 8 incl Debra Wade COD2001-05374 1881 Feather Tree Circle $ 288.50 Feather Tree, Lot 17 Edward Lewis COD2001-04971 800 Pennsylvania Avenue N $ 440.00 Pine Crest Sub, Blk 5, Lot 6 Daniel Kingsbury Tre COD2001-05104 806 Palm Bluff Street $ 250.00 Palm Park Unbd Blk, Lot 19 Clinton Bragg COD2001-06223 1336 Tioga Avenue $ 250.00 Lakeview Heights, Blk A, Lot 22 Michael Albert COD2001—6134 1310 South Washington Avenue $ 250.00 Lakeview Heights, Blk B, Lot 15 Theresa A. Panfili COD2001-06121 1459 Court Street $ 250.00 Breeze Hill, Blk A, Lot 6 David and Eunice Carpenter COD2001-06001 21415 U.S. Highway 19 North $ 370.40 Sec 17-29-16, M&B 22/04 Benham Gholampour COD2001-06447 1305 Springdale Street $ 250.00 Pine Ridge, Blk D, Lots 8 and 9 Bruce A. Harlan Tre COD2001-06542 Rental Properties Trust $ 250.00 1403 North Garden Avenue Twin Oaks, Lot 14 less road Kenneth S. Lamb COD2001-06745 1130 Palm Bluff Street $ 400.00 Greenwood Park #2, Blk F, Lot 48 Member Huffman moved to accept the lien abatement filings as listed. The motion was duly seconded and carried unanimously. APPROVAL OF MINUTES – January 23, 2002 Member Martin moved to approve the minutes of the regular meeting of January 23, 2002, as submitted in written summation to each Board Member. The motion was duly seconded and carried unanimously. Other The Chair welcomed new Board Member George Krause. ADJOURNMENT The meeting adjourned at 5:03 p.m.