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HomeMy WebLinkAboutMinutes 03-03-2010 MINUTES OF THE ST. LUCIE COUNTY CODE ENFORCEMENT BOARD HEARING March 3, 2010 - 9:00 am HELD IN THE COMMISSION CHAMBERS ROGER POITRAS ANNEX 2300 VIRGINIA AVENUE FORT PIERCE, FLORIDA PRESENT Chairman.................................................................................................................Dr. Dale Ingersoll Board Members............................................................................................... ........Ralph Fogg .............................................................................................................................Ray Hofmann .............................................................................................................................Wes Taylor .............................................................................................................................Mitchell Williford Board Attorney .....................................................................................................Jack Krieger ABSENT Excused: Board Member:………………………………………………………………………….. Margaret Monahan Vice Chairman…………………………………………………………………………….Phillip Stickles STAFF PRESENT Assistant County Attorney .....................................................................................Katherine Mackenzie-Smith Code Compliance Manager ..................................................................................Chris Lestrange Code Enforcement Supervisor ..............................................................................Dennis Bunt Contractor Licensing Investigator ..........................................................................Monica Barrios Code Enforcement Officer ...................................................................................Melissa Brubaker Code Enforcement Officer ....................................................................................Lynn Swartzel Code Enforcement Officer ....................................................................................Chris Counsellor Code Enforcement Officer ....................................................................................Mark Fowler Zone Compliance Officer ......................................................................................Danielle Williams Board Secretary ...................................................................................................Shirley Walls Board Recorder ....................................................................................................Mary Holleran * Indicates a motion ** Indicates a vote *** For the record comment A. CALL TO ORDER The Code Enforcement Board meeting was called to order at 9:01 a.m., by Dr. Ingersoll. B. PLEDGE TO THE FLAG All those present rose to pledge allegiance to the flag. C. ROLL CALL The Board Secretary called the roll and everyone was present except Mr. Stickles and Ms. Monahan, who were excused. D. APPROVAL OF MINUTES – February 3, 2010 ? Mr. Hofmann made a motion to accept the minutes of February 3, 2010 as presented . ** Mr. Williford seconded and the motion carried unanimously. CODE ENFORCEMENT BOARD March 3, 2010 E. SWEARING IN OF STAFF MEMBERS Chris Lestrange, Dennis Bunt, Monica Barrios, Melissa Brubaker, Chris Counsellor, Mark Fowler, Lynn Swartzel, and Danielle Williams were sworn in. F. CONSENT AGENDA Mr. Fogg pulled Cases #61954 and 61957, a request for Rehearing/Reconsideration, as those cases were denied. Request for Rehearing Reconsideration Case No. Prime Realty Capital LLC 61954 Prime Realty Capital LLC 61957 Dr. Ingersoll recalled those cases. Mr. Fogg was concerned about the storage of port-o-lets and what the contamination process was to deal with fecal matter, and if the DEP should be contacted. One case under denial was for commercial business and was not paying taxes on commercial rates. Dr. Ingersoll was still in favor of denial. Attorney for the cases requesting the rehearing asked to be heard (he was not identified on the record at this time). Dr. Ingersoll said it would be after everyone else was heard. Mr. Krieger said it could be removed from the Consent Agenda, that staff recommended denial, and asked if the Board went along with that recommendation. Discussion ensued on whether to rehear or reconsider. Dr. Ingersoll said the Board heard the evidence and they would have to hear new evidence and none was produced to change their decision. Ms. MacKenzie Smith said there was a violation hearing and a Fine Hearing would give them the opportunity to make an appeal of the violation, and it would be held next month. The attorney argued that the Board was not allowing a proper hearing of due process and to present evidence. Dr. Ingersoll advised the due process would be heard next month. Had the attorney been present last month, he would have heard that ample opportunity was given to the client’s representative, Mr. Murphy, who fully represented the client, unless he was not authorized to do so, provided full representation, he was heard, there were lengthy details on the case and due process was provided. If the Board decides to deny that means that you will have to come before the Board at the Fine Hearing. Mr. Krieger advised that the Board was not going to argue today on whether they are in violation, they were going to decide why the motion should be approved. There is a distinction. The attorney is saying he wants to present evidence on that motion. A formal motion was prepared, was signed and is legal. The Board can confine or restrict counsel to stay on the point, and hear as to why that motion is different and why that motion should be considered and rehear the whole thing. Mr. Krieger advised removing it from the agenda and give counsel an opportunity to present any argument he so desires. ? Mr. Fogg made a motion to remove from the Consent Agenda the request for rehearing/reconsideration of Prime Realty Capital LLC, Case #61954 and Case #61957 to be reheard on the motion itself at the end of this meeting. ** Mr. Williford seconded and the motion carried unanimously. *** The attorney representing Prime Realty Capital LLC was still not identified at this point. * Mr. Hofmann made a motion to approve and accept the cases on the Consent Agenda as presented by staff. ** Mr. Williford seconded and the motion carried unanimously. Satisfaction of Lien Case No. Sharron Peterson 21513 Sarah Fender 46629 Lamar Outdoor Advertising 33772 RM St. Lucie Builders, Inc. 33773 Page 2 of 11 CODE ENFORCEMENT BOARD March 3, 2010 Rescind Order Imposing Fine/Lien Case No. C & S Realty Group, LLLP (TR) 55587 Request For Fine Reduction Case No. AA Enviro Corp. 60977 G. REPEAT VIOLATION: The following case was removed, withdrawn or abated from the agenda: Case No. Location of Violation Owner/Violator/Name____________ 64289 1101 Percival St., Fort Pierce Alexander Charles Pitts H. VIOLATION HEARING: The following cases were removed, withdrawn or abated from the agenda: Case No. Location of Violation Contractor/Owner/Violator/Name____________ 62404 10725 S. Ocean Dr., Jensen Beach Holiday Out – H.O.A. 62403 10701 S. Ocean Drive, Jensen Beach Venture III, H.O.A. 62336 3211 Brocksmith Rd., Fort Pierce Aguipe Investments Corp. 64206 355 Johnston St., Fort Pierce Patrick & Lisa DiFrancesco 64342 900 SW Airoso Blvd., Port St. Lucie David J. Kleba 64845 140 Eaton Dr., Port St. Lucie Secretary of Housing & Urban Development 64569 2208 Cortez Blvd., Fort Pierce Duvilla & Marie T. Myrtil 64650 12835 S. Indian River Dr., Jensen Beach Denny Beckford & Christine Ahlin 64036 5012 Killarney Ave., Fort Pierce Ameed S. & Suhad H. Eluri 58323 34 Lagos Del Norte, Fort Pierce Wynn Building Corp. 60209 5702 Country Club Pkwy., Fort Pierce Dale F. Walborn 60657 5702 Country Club Pkwy., Fort Pierce Dolphin Contracting, Inc. Daniel Borders 62839 7301 Plumosa Ln., Fort Pierce Fernando Rodriguez, Jr. & Leira Bustamante 64621 5800 Shannon Dr., Fort Pierce Eliot J. Safer (TR) c/o DW Corbett 64622 5803 Shannon Dr., Fort Pierce Joseph P. Watkins & Kara J. Keller VIOLATION CASES HEARD: Case #61773, Location of violation, 623 Beach Ave., Port St. Lucie, Fl., Property Owner(s), Glenn E. and June Ann Rose, S/A. Representing the property owner, Jerry Escue, Contractor, 3038 SW Segovia, Port St. Lucie, Fl., was sworn in by Ms. Walls. Ms. Barrios submitted 3 photos dated 2/10/09 to 2/18/10. The property was cited for a violation to Section 11.05.01- Building and Sign Permits (Please obtain a permit for the carport being turned into habitable space). A compliance date of 4/11/09 was issued. Staff has received several phone calls requesting extensions, and four extensions were granted. On 1/11/10 a Notice to Appear was sent, and on 2/18/10 the property was posted. On 2/22/10 the contractor met with the Plan Examiner and the contractor contacted staff on 3/2/10 and explained what was needed to complete the energy calculations to apply for the permit. As of 3/3/10 the permit has not been applied for and staff has been working on the case for over a year. Mr. Escue stated he was representing the property owner, as a State Licensed contractor he is doing the work. He explained the need for the last extension, that he received the project in September, and was not aware of the issue with the survey, setbacks, and the Health Department requirement. He believed that an extension would enable him to get the permit. Page 3 of 11 CODE ENFORCEMENT BOARD March 3, 2010 Mr. Fogg made a motion in reference to Case #61773 that the Code Enforcement Board make the following * determination: After hearing the facts in this case, the testimony, and the recommendations of staff with regard to the existence of a violation that we determine the violation in fact did occur and the alleged violator committed the violation. An Order of Enforcement is warranted. If the Order of Enforcement is not complied with by April 30, 2010 a fine of up to $250.00 per day may be imposed. Please take notice that on st the 1 Wednesday of the month after the date given for compliance, at 9:00 am or soon thereafter, as may be heard, a Fine Hearing will be held if the violation is not abated by the given compliance date. ** Mr. Hofmann seconded and the motion carried unanimously. Case #64402, Location of violation 220 Boyd Road, Fort Pierce, Property Owner, MCV Properties, Inc., Attn. Frank thnd Vega, 3523 NW 116 St., Miami, Fl., 33167. Rupert N. Koblegard, III, Esq., representing Mr. Vega, 200 S. 2 St., Suite #201 Fort Pierce, Fl. 34950 Mr. Fowler re-submitted three photos dated 12/7/09 to 3/2/10. The case was continued from the February, 2010 CEB meeting so that progress could be monitored on the property. The property is currently in violation of Section 8.00.01- Accessory Uses and Structures, please remove the RV and any other accessory structures/vehicles from the property as they are not permitted unless there is a primary structure on the property. A compliance date of 11/16/09 was issued. Mr. Fowler has had contact with the representative. The property has been inspected three times and the violation still exists. Mr. Koblegard, III agreed his client was in violation, they received Site Plan approval to go ahead with construction at the site, and in the process of landscaping received notice of a bond requirement for irrigation. The fee for the bond is $80,000. They still need about 120 days to comply and are prepared to go ahead. Ms. Mackenzie Smith advised they will need to go the BCC for approval of the Irrigation bond. Discussion ensued on citations for other violations. ? Mr. Fogg made a motion in reference to Case #64402 that the Code Enforcement Board make the following determination: After hearing the facts in this case, the testimony, and the recommendations of staff with regard to the existence of a violation that we determine: the violation in fact did occur and the alleged violator committed the violation. An Order of Enforcement is warranted. If the Order of Enforcement is not complied with by July 31, 2010 a fine of up to $250.00 per day may be imposed. Please take notice that on st the 1 Wednesday of the month after the date given for compliance, at 9:00 am or soon thereafter, as may be heard, a Fine Hearing will be held if the violation is not abated by the given compliance date. ** Mr. Hofmann seconded and the motion carried unanimously. Case #64777, Location of violation, 3265 S. IS Highway #1, Fort Pierce, Property Owner, Pine View MHP LLC, C/O Davis and Bellison LLC, 370 E. Maple Road, Birmingham, MI 48009. Representing the Property Owner, Brian Levine, 140 Acorn Way, Fort Pierce, was sworn in by Ms. Walls. Mr. Levine explained he was the Operations Manager at the trailer park, not the property owner. Mr. Fowler submitted three photos dated 2/22/10 to 3/2/10. During his inspection on 12/17/09 the property was found in violation of Section 13.08.00 – Standard Housing Code (Article 506) Sanitary Drainage System; obtain any/all permits from the Building and health departments as applicable and repair the sewer system; and Section 1- 9-32(D) – Public Nuisance, the alarm from the sewer system is causing a public nuisance to the surrounding neighbors, please make necessary repairs to the sewer system so that the alarm doesn’t constantly go off. A compliance date of 12/27/09 was issued. He has had contact with the representative to discuss ways to correct the violation. As of 3/2/10 the property remains in violation. The property has been inspected three times. Brian Levine, Operations Manager of the property, said they were slowly changing the alarm systems and looking at new pump systems for the units. He believed the violation was over with. The one issue is when the pumps fail, the alarm goes off to indicate a failure and they are changing them one at a time. He spoke with Mark for an extension on the pumps. There were 27 stations that were involved. Mr. Fowler displayed an e-mail from DEP (read into the record by Dr. Ingersoll) explaining the work going on to correct the violation and the nuisance alarms. Mr. Levine agreed they were trying to replace every pump and asked for 60 days. The new system should eliminate the pumps going off. Page 4 of 11 CODE ENFORCEMENT BOARD March 3, 2010 Mr. Fowler advised that fewer alarm complaints calls had been received. Dr. Ingersoll was critical of the time it th took, since December 17, to correct an on-going serious health issue and the nuisance alarms. He asked that Mr. Fowler provide an accurate account of the calls coming in from the residents. Discussion ensued. ? Mr. Hofmann made a motion in reference to Case #64777 that the Code Enforcement Board make the following determination: After hearing the facts in this case, the testimony, and the recommendations of staff with regard to the existence of a violation that we determine: the violation in fact did occur and the alleged violator committed the violation. An Order of Enforcement is warranted. If the Order of Enforcement is not complied with by May 7, 2010 a fine of up to $250.00 per day may be imposed. Please st take notice that on the 1 Wednesday of the month after the date given for compliance, at 9:00 am or soon thereafter, as may be heard, a Fine Hearing will be held if the violation is not abated by the given compliance date. ** Mr. Williford seconded and the motion carried unanimously. The Hall was sounded and Dr. Ingersoll read the names and numbers of the cases of those not present into the record: Case No. Location of Violation Property Owner/Contractor Violator 63773 117 Hilton Dr., Fort Pierce Jesse J. Roberts (EST) th 64642 780 N. Kings Highway, Fort Pierce King Highway 80 LLC, 1951 NW 19 St. #208 Boca Raton, FL 33431 64797 2301 St. Lucie Blvd., Fort Pierce GreenPoint Mortgage Funding, 2300 Brook Stone Centre Parkway, Columbus, GA 31904 64449 5412 Fort Pierce Blvd. Fort Pierce Elgin & Leigh Hipps 64037 8715 S. U.S.#1, Port St. Lucie Electrolux Vacuums & Air Purification 64038 8715 S. U.S.#1, Port St. Lucie Ferkee, Inc. 3703 Jennings Rd., Port St. Lucie 64623 5804 Shannon Dr., Fort Pierce Ronald G. Marshall ? Mr. Williford made a motion in reference to the cases read into the record that the Code Enforcement Board enter an Order of Finding against these violators finding the violators in default and if they do not appear to contest the violations against them and that the Board adopt the recommendation of staff as set forth on the agenda. ** Mr. Hofmann seconded and the motion carried unanimously. I. FINE HEARING: Case #61030, Location of Violation, 7907 Santana Ave., Fort Pierce, Property Owner, Amy H. and Scott Demmy, Scott Demmy, S/A, was sworn in by Ms. Walls. Ms. Barrios provided one photo dated 11/6/08. This case was brought before the December 2, 2009 Code Enforcement Board and found in violation of Section 11.05.01- Building and Sign Permits. Please obtain a permit for the rear addition. A NOV was sent on 11/12/08 with a compliance date of 12/1/08. Staff has had discussions with the owners to correct the violation. At the December, 2009 CEB meeting the Board gave until 2/5/10 to obtain a permit for the addition and to come into compliance. The permit was applied for on March 2, 2010. Mr. Demmy agreed he was in violation, he had everything prepared but didn’t have the physical survey completed. They had 60 days and thought that was sufficient time to get the permit. Communication broke down with his contractor, he was unaware of the continuing violation for the permit. Mr. Bunt confirmed that staff had no objection to granting additional time to comply, otherwise this will be a repeat violation. ? Mr. Hofmann made a motion in reference to Case #61030, that the Code Enforcement Board make the following determination: After hearing the facts in the case, the testimony and the report of staff with regards to the existence of a violation, we determine the violation has been abated and no fine is imposed. ** Mr. Taylor seconded and the motion carried unanimously. Mr. Bunt advised the next two cases were at the same location, for the same violations. They were read separately into the record. Page 5 of 11 CODE ENFORCEMENT BOARD March 3, 2010 Case #57246, Location of Violation, 34 Arboles Del Norte, Fort Pierce, Property Owner, Daniel Neale, S/A, has passed away. Robert Neal, his son, 936 Van Buren St., Hollywood, Fl., represented deceased Daniel Neal, and was sworn in by Ms. Walls. Ms. Barrios provided photos dated 5/8/08 to 11/3/09. This case was brought before the November 4, 2009 Code Enforcement Board and found in violation of Section 11.05.01 A(2)a, Building and Sign Permits. Please reactivate and obtain a final inspection for permit #0508-0506, reinstall 23 X 10 glass room, 35 X 12 carport roof on existing shed on existing concrete. A permit was issued for the carport on 11/8/09 and finalled on 12/14/09. The garage room still has no permit. Daniel Neale has since passed away. His son, Robert Neale had contacted staff several times and is present today to discuss an extension. Dr. Ingersoll questioned the legality of citing an individual who passed away and if the citation was valid. Mr. Neale confirmed the date of his father’s death. Ms. Barrios said he was cited on 2/21/08. Ms. Mackenzie Smith advised the property is still under Daniel Neale’s name. Robert Neale said he was contacted in the Fall, 2009 and advised of the violation. He reviewed it with his father and went back to the contractor because of the two violations. He received two proposals, one coming three days after his father death and the intent was to correct the violation. In the process now of transferring the property, he can’t pull a permit because the property isn’t in his name, and asked for additional time. Dr. Ingersoll asked if it would go away in 60 days. Mr. Bunt said staff recommended 90 days to give him enough time because of Probate. ? Mr. Williford made a motion in reference to Case #57246 that the Code Enforcement Board make the following determination: After hearing the facts in the case, testimony and the report of staff that the violation still exist, and after considering the gravity of the violation, the actions if any taken by the violator to correct the violation and any previous violation, we make the following determination: A fine of $250.00 per day shall be imposed for each day the violation exists, starting June 2, 2010 with the maximum fine not to exceed $5,000.00. A cost of $125.00 shall be imposed as the cost of prosecuting this case. ** Mr. Hofmann seconded and the motion carried unanimously. Case #57247, Location of Violation, 34 Arboles Del Norte, Fort Pierce, Fl., Property Owner, Wynn Building Corp., nd 12804 SW 122 Ave., Miami, Fl. 33186. No one was present to represent the property owner. Ms. Barrios confirmed the information, violation and testimony being submitted for this case was the same as in the previous case and no new information has been submitted. ? Mr. Williford made a motion in reference to Case #57247 that the Code Enforcement Board make the following determination: After hearing the facts in the case, testimony and the report of staff that the violation still exist, and after considering the gravity of the violation, the actions if any taken by the violator to correct the violation and any previous violation, we make the following determination: A fine of $250.00 per day shall be imposed for each day the violation exists, starting June 2, 2010 with the maximum fine not to exceed $5,000.00. A cost of $125.00 shall be imposed as the cost of prosecuting this case. ** Mr. Hofmann seconded and the motion carried unanimously. Case #64410, Location of violation, 5007 Barcelona Ave., Fort Pierce, Fl., Property Owner, Stan Jackson, S/A. No one was present to represent the homeowner. Ms. Swartzel submitted three photos dated 2/4/10 to 2/26/10. This case came before the January, 2010 CEB meeting and found in default of Section 13.09.00 Exterior Property Maintenance (Article 303.2) – Protective Treatment: please obtain the proper permits and replace or repair the broken windows on the property. A compliance date of 2/6/10 was issued. She has had contact with the property owner and discussed ways to correct the violation. As of 3/2/10 the property remains in violation. ? Mr. Fogg made a motion in reference to Case #64410 that the Code Enforcement Board make the following determination: After hearing the facts in the case, the testimony and the report of staff that the violation still exists and after considering the gravity of the violation, the actions if any taken by the Page 6 of 11 CODE ENFORCEMENT BOARD March 3, 2010 violator to correct the violation and any previous violation, we make the following determination: A fine of $250.00 per day shall be imposed for each day the violation exists, starting February 6, 2010 with the maximum fine not to exceed $5,000.00. A cost of $125.00 shall be imposed as the cost of prosecuting this case. ** Mr. Hofmann seconded and the motion carried unanimously. Case #63769, Location of Violation, 5003 Fort Pierce Blvd., Fort Pierce, Property Owners, Linda L. Kirchner & Ryan G. Harris. No one was present to represent Mr. Lloyd. Mr. Counsellor submitted five photos dated 1/5/10 to 3/3/10. This case was brought before the January 6, 2010 Code Enforcement Board and found in default in violation of Section 1-9-19- Abandoned Property, Unserviceable Vehicles, remove and clean up all junk, trash, debris, outside storage of items and materials; Section 7.05.09(B)- House & Building Numbers-house numbers are required to be at 4” high and visible from the street; and Section 13.09 Exterior Property Maintenance (Article 303.2) Protective treatment – repair, repaint or clean exterior of the property removing peeling paint, mildew and discolored areas on the exterior. A compliance date of 2/5/10 was issued. Staff has not had contact with the property owner. As of 3/3/10 the house is still in violation. It has been inspected five times. No property is a rental property, and not in foreclosure. ? Mr. Fogg made a motion in reference to Case #63769 that the Code Enforcement Board make the following determination: After hearing the facts in the case, the testimony and the report of staff that the violation still exists and after considering the gravity of the violation, the actions if any taken by the violator to correct the violation and any previous violation, we make the following determination: A fine of $250.00 per day shall be imposed for each day the violation exists, starting February 6, 2010 with the maximum fine not to exceed $5,000.00. A cost of $150.00 shall be imposed as the cost of prosecuting this case. ** Mr. Hofmann seconded and the motion carried unanimously. J. REPEAT VIOLATION HEARING: None. K. FINE REDUCTION HEARING: None. L. REHEARING OR RECONSIDERATION HEARING: - Mr. Krieger advised the Board it was not rehearing the two Prime Realty Capital LLC-cases under today’s Consent Agenda. It was listening to arguments on the merits of the motion before the Board. Travis R. Walker, Attorney, Weiss, Handler, Angelos & Cornwell, P.A., Suite 101, 10521 SW Village Center Dr., Port St. Lucie, represented Prime Realty Capital LLC. He requested a rehearing, reconsideration of the Board’s action and alternatively an extension of 90 days to come into compliance. He used as an example the Pine View MHP, LLC case, heard today, which was given additional time to come into compliance. They did not object to the Finding of Fact that the property was in violation. He reviewed Mr. Stickles’ comments from the CEB 2/3/10 meeting minutes, where additional time was given. They need time to fix the problem and don’t know if 30 days is enough. The owner is in negotiations with other property owners to find an area to relocate the containers. He referred to other cases with zoning issues and requested they be given the same latitude as others to cure their code violation, otherwise it would lead to problems of selective enforcement, equal protection problems, fairness and substantive due process. Mr. Walker requested that the CEB allow the property to go through the zoning process to cure the violations, that the applicant has made extensive work to bring the property into compliance, and provide a rehearing or an additional 90 days. The Board reviewed the Minutes of the CEB meeting (2/3/10) and the comments referred to (pg. 4). After discussion it was noted that Mr. Stickles seconded the motion and the vote was unanimous. There was no opposition to the motion. Page 7 of 11 CODE ENFORCEMENT BOARD March 3, 2010 Dr. Ingersoll said the Board makes a motion based on several factors: First is the public health, welfare and safety of the community. When extensions are granted it is based on how it affects the public welfare and safety of the community. An issue the Board addressed was the possibility of contaminants from those port-o-lets, and how they could have a product that deals with fecal matter and put it on a site that’s non-regulated and uncontrolled. When they voted on the issue it was a matter of the motion that they thought the gravity of this situation was a potential threat, to the public health, safety and welfare of the community. With a possibility of sewage leaking, the Prime Realty case did not equate to any other cases they have heard. If there was a problem with sewage they would be dealing with a more severe citation. Let it remain a matter of this motion that the Board had some concerns about the public health, welfare and safety of the community. Prime Realty was given 30 days according to the process and according to the stated motion, which is a matter of public record. When exceptions are granted they are given on mitigating factors affecting the public health, safety and welfare of the community. At the hearing Mr. Murphy was articulate in telling how over a period of time how many applications have been thth made, and this effort might be a 4 or 5 presentation of fact, and he agreed that if they followed the zoning designation of the property, the first set should have done it. Mr. Walker’s reference to a comparison between the Pine View MHP LLC and Prime Realty cases are extremely different and extensive in comparisons: Pine View had already obtain the zoning, and they didn’t just go out there and build a mobile home park completely out of zoning. Prime Realty was not in compliance from day one. They massively moved containers and put huge numbers of port-o-lets on AG-1, Agricultural zoned land on the property and took control of it, and allowed it to go on month after month, which is far more egregious in the zoning violation. Mr. Walker was asked how many port-o-lets and how many containers have been moved in the 30 days that the Board had given. Mr. Walker did not provide a number. Discussion ensued on how long the violation has been on-going, and what they had done to show that a good effort had been made to correct the violation. Mr. Fogg addressed the issue of over 700 containers collecting water, breeding mosquitoes, having run off into a retention area and thought that staff should be instructed to get DEP involved in it. Mr. Walker quoted comments from the CEB (2/3/10) meeting that $250 a day for an extremely profitable piece of property is nothing. Dr. Ingersoll confirmed his statement and since it was brought up, said that it goes to the motion itself and was part of the logic of the motion. He confirmed with staff that assessed taxes on the AG-1 property are $12,871.59 total and if it were zoned commercial or industrial the taxes would be significantly more. That the matter of the motion is the incongruity, and addressed Mr. Walker’s comment of fairness. This is an industrial business moving on to agricultural property, getting by on paying a $1,000 a month, when the taxpayers of this county are subsidizing the business sitting on AG-1. Part of the responsibility of this Board is to make sure that there is a fair level playing field when it comes to zoning and violations. That state was not implied, Dr. Ingersoll put it on the record, and will defend it anywhere. Mr. Walker was implying the concern about selective enforcement, equal protection and substantive due process and fairness to their client. Discussion ensued on the rental fees the client receives putting the port-a-potties out on construction sites, and the fee for dumping. Mr. Walker was not sure of the number of rentals for the port-a- potties daily. The Board took that into the gravity of the motion, and in their assessment believed this was not some homespun business, but a profiteering business where port-a-potties go out for rental. Mr. Walker agreed that statement was correct. His argument was that their property owner is treated differently than other property owners in the county because of his profit and where the corporation resides. The Board acknowledged the corporation resides on an agricultural piece of property and that was the issue. Mr. Walker said it isn’t a County Corporation, that was their reasoning. Page 8 of 11 CODE ENFORCEMENT BOARD March 3, 2010 Confirming it was an out-of-town corporation, the Board asked if they applied for a permit, an Occupational License, and how many years did it go back. Mr. Walker said he inquired about the Occupational License with Code Enforcement. *** For the record, Mr. Bunt said there is no Occupational License on the property, because the property is not zoned for the occupation that would be going on it and they were cited for the violation of AG-1 zoning on the property. They wouldn’t have been granted an Occupational License on that property, because it isn’t permitted the way it stands now. Mr. Walker quoting from the last meeting, I’m not about to say Oh poor Prime Realty that if there is ever a time to use the other end of the spectrum this is the day. Dr. Ingersoll advised that the Board has the ability to set the level of a fine and when you look at the public health, welfare and safety issue, the Board may use the most motivating factors they have to make the public health and safety issue go away. Their normal process when hearing a case is to discuss, provide due process, and then come to a decision as to what that fine could be. In the spectrum of the weight of fines that the Board has, in this case they could apply the strictest terms of whatever they can find, because it is a potential threat to the health, welfare and public safety of our citizens. It is a violation of zoning, and it’s on the record. This is an industrial business and has no right to be located there with a potential public safety issue. For that reason the Board can go to the end of the spectrum. Mr. Walker commented from the minutes, this is not a homeowner but an industrial user making a nice profit. The error is in treating the homeowner and the industrial user differently. Explaining the difference, Dr. Ingersoll confirmed with Mr. Walker there are two different fine levels in the Code. There is a commercial fee schedule payment and a separate one for homeowners. This has been a part of the process that’s been here for years, and for Mr. Walker to suggest there are two standards, Dr. Ingersoll said he was right, there has always been two standards. Mr. Walker said the problem we have is comparing this industrial user to a residential property. Dr. Ingersoll commented, it’s a violation, where Prime Realty has an industrial business sitting on a piece of residential property. Prime Realty has applied three or more times to change it from residential to commercial and today, to suggest there is no difference between commercial and residential is absurd. Mr. Walker commented the comparison was more emphasized by the reference to the potential profit. Dr. Ingersoll commented that was true. They don’t have an Occupational License for the property because their business is not allowed on that zoning, and that is what differentiates a residential piece of property from a profit making industrial property. Mr. Walker said the difference is the treatment of a profit generating property as opposed to a non-profit. Dr. Ingersoll accepted that statement as one he made, and said the difference is because he will treat a profit business differently than a residence. There is a difference between a homestead and commercial piece of property. Mr. Walker said he would agree there is a constitutional difference but didn’t think it applied here. The Board asked if they were still doing business out there. Mr. Walker said if you’re talking about remediation efforts with respect to the property owners attempt to remediate the property and remove containers, they are working through the process and the Board’s and County’s concerns. Mr. Walker said the County went out three times, he went out one time. When asked if the clients are still billing for port-o-lets and containers out there Mr. Walker said he had no knowledge of that business and believed that it was out of the scope of that violation. Dr. Ingersoll clarified that Mr. Walker said the motion was made based on the timing given to the party. Mr. Walker agreed. Dr. Ingersoll commented that he would have taken the motion deductively to indicate what was done during the month, if they ceased doing business and then indicate what was still required. There has been no mitigating evidence that says that motion was invalid, or the timing was wrong, so we come to this discussion that we have no real solid law other than the Board is unfair – an argument the Board has heard many times. Page 9 of 11 CODE ENFORCEMENT BOARD March 3, 2010 Mr. Walker reiterated they were not only arguing about fairness but also substantive due process, equal protection and selective enforcement. Dr. Ingersoll noted this was the first consent agenda appeal that the Board has heard on the same day since they have gone to this method. They are objecting to the appeal process and the fairness process and have just received more than any citizen in St. Lucie County. Mr. Walker argued the due process afforded a private land owner is not something to be compared with other property land owners, it is something that’s afforded to a property owner that’s in this discussion. Dr. Ingersoll commented that Mr. Walker suggested the Board should sit here with absolutely no framework or benchmark to compare one case to another, or assess the egregiousness of one case to another, or to look at the differences in the Code. That was an interesting argument they wouldn’t agree on. Mr. Walker commented on the rights afforded under the Constitution of due process is a right afforded to private th land owners to private people, in the 14 Amendment, and that’s equal protection under due process. He had no intent of debating due process in other people’s protection under due process. Dr. Ingersoll said that’s what he has just been discussing. Mr. Walker summarized and said our client is asking for the same opportunity afforded to every other property owner who has a code violation and is going through the rezoning process and has the opportunity to cure the code violation through the zoning process. We ask for that same right to be afforded to our property owner and we also request that our property owner be treated as a like property owner in that they are afforded the additional time to cure the property as the mitigating circumstances have shown. Mr. Walker finished his argument. Mr. Krieger advised the Board they should give reasons why they are denying the motion, and to stick to the motion. Dr. Ingersoll commented the motion to change the timing of the violation has been heard. The violation citation and the time frame that the Board gave was not selective, it was part of the normal written process that’s been part of the public record for many years. There are options open to the Board to deal with the egregiousness of a violation. In this case there was discussion and understanding that this was an industrial business, sitting on an agricultural parcel, and the Board recognized that the problems on the property have been on-going and unresolved. There are other mitigating factors the Board recognized, such as public health, safety and welfare with the type of equipment that’s stored out there, mainly port-o-lets next to a water retention area. The timing did not need to be extensive, it needed to be on the short term to motivate Prime Realty, in order to get their material on a proper property that is in compliance with County Code and Occupational Licenses and Business Licenses and any other permits that are required for handling this kind of equipment. As seen at the Fine Hearing today, as we polled all of these people we gave them dates certain for compliance and they came in and told us what they did to comply. Prime Realty has not completed the due process, what they have done is pre-empted their Fine Hearing and came in today. This is a pre-emption of the violation of the Fine Hearing itself, which is not due process, and, in fact is unfair to the other residents of this community. Dr. Ingersoll believed the Board should stay with the time. If Prime Realty has anything to appeal to when it comes to the Fine Hearing, as to what they have done to mitigate the present damage of the property, and what they are going to do on that property before the fine date, we will listen. If there’s anything mitigating at that time, we’ll hear it. If there needs to be a time adjustment then it will be given as we give every citizen of this County or anyone else who has property. Mr. Fogg thanked the attorney for appearing today, saying it gave the Board an opportunity to look at this in a different manner, and maybe some of the things they did not see before at the last meeting, such as the contaminating run offs of the port-o-lets, were informative. He recommended to staff that it may be something they should notify the Health Department about and to check the property. Mr. Walker thanked the Board for the opportunity to appear today and respectfully objected to any references that were improperly oath reported, substantive due process, equal protection, fairness or that the violation is not considerable selective enforcement. Dr. Ingersoll so noted. Dr. Krieger advised the Board had to consider whether they should consider or deny the motion. Page 10 of 11 CODE ENFORCEMENT BOARD March 3, 2010 ? Mr. Williford made a motion to deny the motion. ** Mr. Hoffman seconded and the motion carried unanimously. Mr. Bunt advised the attorney that the Fine Hearing will be held next month at the Code Enforcement Board meeting and they must appear for that meeting. M. OTHER BUSINESS: None N. STAFF BUSINESS: None O. PUBLIC COMMENTS: None ADJOURN: There was no further business and the meeting was adjourned at 10:55 a.m. _____________________________ ______________________ Dr. Dale Ingersoll, Chairman Date _____________________________ _______________________ Mary F. Holleran, Specialist Consultant Date Page 11 of 11