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Minutes 08-05-05 MINUTES OF THE CODE COMPLIANCE BOARD WORKSHOP MEETING HELD IN THE CITY LIBRARY, BOYNTON BEACH, FLORIDA, ON FRIDAY, AUGUST 5, 2005 AT 2:00 P.M. Present Michele Costantino, Chairperson Kathy Cook, Vice Chair Kathleen Carroll Lisa Simshauser Bob Foot Richard Yerzy, Voting Alternate David Tolces, Assistant City Attorney Kurt Bressner, City Manager Scott Blasie, Code Administrator Diane Springer, Admin. Assistant Absent Chris DeLiso Chair Costantino opened the workshop at 2: 11 p.m. She explained the meeting was being held to review the Florida Sunshine Law, the City's mission, Code Board procedures and protocol. 1. Sunshine Law Review/Public Records/Voting Conflicts 1) Sunshine Law Assistant City Attorney David Tolces reviewed the Sunshine Law, the Public Records Law, and the issue of voting conflicts for the information of the new board members. The courts have held that two or more people meeting (or em ailing) to discuss matters before or coming before the board could be subject to non-criminal penalties if they did not give the public notice of the meeting and take minutes. Emails between board members can be considered meetings. Attorney Tolces strongly suggested that discussions be held only at noticed meetings. If a board member feels it is important to discuss a matter with another board member, the request should be presented to the Code Administrator, who would try to arrange a special meeting. If board members feel a meeting is warranted, Attorney Tolces suggested that a request be sent to the Code Administrator's office, the City Clerk's office, or the City Attorney's office in writing so the communication could be shared with all board members. In this way, the board members would act from a shared base of information. 2) Public Records Law The public is entitled to examine public records. The City is responsible for producing records as requested, unless an exemption exists. All communications received Meeting Minutes Code Compliance Board Workshop Boynton Beach, Florida August 5, 2005 regarding matters pertaining to a board member's responsibilities could be considered public records. The City is responsible for providing public records, not the board member. Personal notes made at public meetings can also be construed as public records and must be produced on demand. Chair Costantino asked Attorney Tolces if she could shred such notes after she compared them with the minutes when published. Attorney Tolces advised he would investigate and report back to the board. He thought after the minutes were published, her notes would be considered a draft and could be disposed of. Mr. Foot throws such documents out after six months. Attorney Tolces had not seen a case pertaining to notes kept by board members. 3) Voting Conflicts Attorney Tolces read from the Code: "No appointed officer shall participate in any matter which would inure to the officer's special private gain or loss, which he knows would inure to the private gain or loss of any principal by whom he or she is retained, or to the parent organization or subsidiary of a corporate principal by which he or she is retained, or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer without first disclosing his or her interest in the matter. " The board is limited to not participating until they have disclosed an actual or potential conflict. The nature of the conflict will be made in a written memorandum filed with the Clerk prior to the meeting and shall be incorporated into the minutes. If the disclosure is not made prior to the meeting or is not known prior to the meeting, the disclosure shall be made orally at the meeting and then a written memorandum would be filed in 15 days. It will be provided to the other board members and read publicly at the next meeting. Attorney Tolces advised that the board members were not allowed to abstain from any vote, but must disclose any potential conflicts before participating and voting. The Clerk's office can provide the forms to fill out related to voting conflicts. A City Commissioner is able to abstain. City Manager Bressner commented that the reason for this is that the Code Board is a recommending body to the City Commission and is not in the position of making a final decision on a given issue. The board thanked Attorney Tolces for his presentation. II. City's Mission - Compliance vs. Enforcement City Manager Bressner observed that the board had shown an emphasis on compliance, only going to enforcement when absolutely necessary, and the Commission seemed to be pleased with their work. He believed that the board had achieved a good balance between compliance and enforcement and should continue in that vein. The Commission was more comfortable with the Board working with property owners to seek 2 Meeting Minutes Code Compliance Board Workshop Boynton Beach, Florida August 5, 2005 compliance, but realized that sometimes it was up to the Board to give property owners a "nudge." Mr. Foot referred to the City's ordinance that called for enforcement and notes distributed from a workshop he had attended in Orlando in regard to statutes for enforcement. Philosophically, Mr. Foot was not in agreement with the stated viewpoint of the Commission. He believed that a deterrent had value in bringing about compliance and that the Board would not be doing a service to the community if it allowed people to come into compliance years after the compliance date with fines of little or nothing. As a taxpayer, he had definite feelings about this. Mr. Foot thought an analysis of the Commission's actions would help the Board to know if the Commission was in agreement with the Code Board's actions, i.e. did the City Commission overturn a Code Board decision and if so, how often? Mr. Blasie responded that the Commission had not disagreed with the Board's actions since 2001, so it appeared that the Commission was in agreement with the Board's decisions. Mr. Blasie remarked that when the Board had given certain entities stiff fines, the Commission had not disagreed and interestingly, the applicants had not appealed the Board's recommendation to the City Commission. Mr. Blasie said that his comments on leniency were that there should be a separation between types of violations. The Community Appearance Code did not, in their opinion, warrant a heavy-handed approach. On the other hand, it might be more warranted with people running businesses without certificates of occupancy. There was a time for each kind of decision: compliance or enforcement. He understood Mr. Foot's point about not wanting to live next to someone who did not keep up his or her property. However, he worked in the City at a time when enforcement was the "order of the day" and the files were filled to bursting with liens without end. Ms. Simshauser felt that enforcement could be a little "nudge" and did not have to result in heavy fines. The enforcement could be, "Hey, we're paying attention to you." Enforcement has a positive and a negative side. Mr. Blasie thought that having a large number of board members with differing opinions was a good thing. Vice Chair Cook thought that the City had overturned some hefty fines imposed by the Board when the homeowners went before the Commission. Sometimes the Commission says, in effect, that the Board did its job but the Commission was going to pardon the homeowner/business owner, for whatever reason. Chair Costantino thought it would be useful for the Code Compliance Board to receive notice when a case on which it had made a recommendation would be coming before the Commission on appeal. They might be able to go that meeting and speak to the Commission about it. Mr. Blasie felt this was something staff could facilitate. He stated that he receives the Commission agenda in final draft form on Monday or Tuesday before the City Commission meeting and interested Board members could call him about it. 3 Meeting Minutes Code Compliance Board Workshop Boynton Beach, Florida August 5, 2005 Vice Chair Cook felt the underlying message was that the Board wanted people to comply and wanted to enforce the City's regulations, but wanted to make sure that they were applying enforcement in the right style, and not in a heavy-handed way. Mr. Bressner commented that from reading the minutes, it could be seen that City staff and the Code Board were working very hard to achieve justice, get the facts on an issue, and make an informed decision. Vice Chair Cook thought that the City might come up with more ways to help people who needed grass, for example. Mr. Bressner thought this was a fair comment. If the same issues were repeated, alternative actions should be considered, including setting aside some extra money for this purpose. He liked proactive approaches and sometimes you had to provide some assistance in order to make it happen. Mr. Blasie said in regard to grass, there were possibly some Code adjustments that could be made. There are 20 inches of rain in June and possibly no more until September and people who plant grass in between lose it, especially when they do not have the proper irrigation equipment. Some other communities allow for different solutions to lawns such as decorative rock, landscaping or some type of ground cover, and Mr. Blasie was looking into some ideas at this time. He solicited ideas from the Board members on this matter. Mr. Bressner felt the Board should work on this together to provide a recommendation to the City Commission. Mr. Foot felt that when the Board heard of the City coming by to pick up neighborhood junk and left a hole, it may cost less for the City to fill in with grass than to pay a Code Inspector to write up and work on the case. Mr. Bressner would talk to staff about this if the Board made such a recommendation. Chair Costantino said that what happens is that when the sod is put down, the City comes along and picks up junk, ruining the new sod. Mr. Blasie commented that the Public Works Department would put down sod once in such situations. III. Code Comoliance Procedures Mr. Blasie said they had already discussed the fine issue. He felt it was up to his staff to present sufficient evidence for the board to make an informed decision. They strive to do a better job continually. The presenters will make a special effort to let the board know when it is a serious matter, or a life/safety issue. These cases probably merit the enforcement approach. Mr. Blasie invited the board members to let him know if they felt staff could do a better job on the presentations. Vice Chair Cook confirmed with Attorney Tolces that on homesteaded property, the board could lien it but not foreclose on it. It seemed to her that most of the properties before the board fell into this category. Mr. Blasie complimented the board on its constant effort to educate the homeowners. 4 Meeting Minutes Code Compliance Board Workshop Boynton Beach, Florida August 5, 2005 Mr. Bressner commented that the City of Lake Worth had attempted to get legislative changes made that would raise the level of importance of liens for the purposes of collecting on them. Tallahassee has not been interested in doing this to date. Mr. Bressner was working with the City of Lake Worth to assist them in their code compliance/enforcement issues. He was also trying to get the Palm Beach League of Cities behind the issue as a well to add more teeth to the liens that are put on property, particularly the homestead exempted properties. To date, the property rights individuals and real estate interests see it as extra work. They come out and object to anything that would slow down sales of properties. This would be the third year in a row that Boynton Beach and Lake Worth had tried to get this legislation passed - so far, they not been able to get it on a committee. They would continue to try. Attorney Tolces said that one of the issues was purchase money mortgages. This type of mortgage automatically jumps ahead of City code liens. Even if the City had a lien that survived through a closing, that mortgage would still take priority. Mr. Blasie said if their lien was there and the City receives notice, it demands compliance prior to releasing its lien, whether they had standing or not. Mr. Bressner asked about the issue of not issuing occupational licenses to homes with liens on them. Was there a way the city could adopt an ordinance - Attorney Tolces thought this was already the case - that they were not issued occupational licenses if liens were present. Mr. Bressner was talking about businesses that have a series of code compliance liens and have their occupational licenses renewed - any ability to modify occupational licensing code that would require the liens be dealt with before the issuance or renewal of an occupational license. Attorney Tolces said that with regard to the issuance of a license, he was pretty sure the city would not issue one in the presence of liens. After the business is there and the business comes in for renewal, he was not sure of the process. Mr. Bressner wanted to see the ordinance change to be able to provide this as an affirmative way to deal with the issues as they come up. They may have to wait until September of every year, but that was all right. Chair Costantino asked if this could include home-based businesses coming in for renewal of occupational licenses if they had an outstanding lien. Mr. Bressner said that was certainly a possibility also. Chair Costantino asked if Code was providing written notification to the homeowners when they are in compliance to avoid the big miscommunication issue - I was in compliance but nobody told me. Mr. Blasie said every case that gets a notice to go before the board gets an affidavit of compliance that he signs and its notarized. If we cite you today and you comply tomorrow, that is it. Every case that goes before the board gets an affidavit of compliance. From what he and Diane had heard, this is more than a lot of communities do. Mr. Foot stated they have situations where people say: "I talked to Inspector X and X said, "no problem" - when it really is a problem. Mr. Blasie said after the last board meeting staff had a discussion about this. One of the conclusions was that people hear what they want to hear sometimes. He had gone as far as directing the inspectors to 5 Meeting Minutes Code Compliance Board Workshop Boynton Beach, Florida August 5, 2005 take notes and document street or phone conversations in the file. If the inspector meets with a property owner and tells him or her their grass looks great (when they still haven't gotten a permit for their roof), the homeowner should also hear about the permit issue. Absent this, the owner will only hear that his grass looks great and he will forget anything else he was supposed to have done. Mr. Blasie and staff were working hard to limit this kind of claim from homeowners. Chair Costantino said the board heard a lot of Building Red Tag cases and she did not think it was fair to the Code inspectors to present cases they knew nothing about. The board does not get the information it needs to make a decision. She thought someone from Building Department should be present at the meetings. Mr. Blasie said that staff should do the ones that could be photographed and documented, but were not necessarily technical in nature. They routinely check the Building Department records on the day of the hearing. On really complicated cases like the Two Georges not getting its e.0. because they had to put in a parking lot, the Building Official would be asked to attend. City Manager Bressner asked if the Building Official could file an affidavit describing the infraction that could be made part of the official record. On complex matters, Acting Chief Immler could be alerted and he could contact Quintus Greene to ask that someone from the Building Division be at that particular meeting. Attorney Tolces stated that most of the time, the inspectors state the Building Division has issued a Red Tag. They should also have a printout or statement saying they reviewed the Building Division's records the day of the meeting and did or did not find an application for a permit or whatever they were supposed to have. That should provide the board sufficient information for it to make a decision. Mr. Foot commented that one of the concerns had been safety. Sometimes an air conditioning unit has been replaced without benefit of permit or inspections. In the absence of an inspection, the inspector cannot say that there is no safety problem and the board is left open. This is where more information about red tags could be helpful. Mr. Blasie commented the assumption was that anything done without a permit and inspections brings in a factor of safety. Vice Chair Cook went to a seminar in Naples and heard that a lien could not be put on a homesteaded property. The issue went to court in December of 2003. City Manager Bressner stated this had not reached our area yet. Attorney Tolces stated an appellate decision came out of Dade County and some inference could be made that this was what the court said, but it had not been adopted in other districts or by the supreme court. We are still operating with the legal authority that you can place a lien on homesteaded property. Mr. Blasie mentioned that in regard to liens and foreclosures, the City collects quite a bit of money since people are refinancing, selling, and buying a lot of properties and that is when liens show up. The money goes into the City's General Fund. 6 Meeting Minutes Code Compliance Board Workshop Boynton Beach, Florida August 5, 2005_ 4. Board Protocol Mr. Blasie commented that in his staff meetings his code officers get frustrated that we tend to take people's issues a little lightly. A citizen at the last meeting addressed a board member that was apparently taking matters a little lightly in his opinion and made comment like, "I don't know why you're laughing. This is serious stuff. I'm here before the board with problems that may cost me money." It is not just that one occasion. Obviously, his staff needs to be professional and that is the message he wants to convey. He hoped that the board members and his staff could continue in a professional way. When the proceedings are kept to a professional tone, they proceed more smoothly and expeditiously and the homeowner walks away feeling that he or she has been treated with respect and dignity and an education to boot. Vice Chair Cook commented that if the board and staff were not serious, how could they expect the homeowner to take the matter seriously. Chair Costantino said they had to remember that the roles could be reversed one day and staff or a board member could be on the other side. We should treat the residents the way we would want to be treated. Chair Costantino had pulled all the recordings of the meetings she had chaired because she wanted to find a way to improve the way the board goes about accomplishing its business. Mr. Blasie brought up one good issue and one thing that had been repeatedly said to her was that sometimes the board relies on asking the code officers for their input. The board is there to make decisions, and the code officers are there to present the case. She would prefer more discussion among the board members rather than asking the code officers for their opinions. If it were that simple, the board would not be needed. If the code officer's opinion were the only factor, there would be no need for the board. Attorney Tolces remarked that the code officers were acting as prosecutors for the City in the case. They also work with and have a relationship with the property owner. By asking them to make a recommendation on a fine or a time period, the board is putting them in a tough position - that of prosecutor and essentially, the judge. The property owner says the board only approved that because that was what the code officer recommended. The property owner wants to know why the code officer did that after they had spoken with the homeowner who had agreed to work with the code officer on the problem. This issue comes up in other cities too. Vice Chair Cook asked if there were a way to get the necessary information from the code officer in the presentation of the case. They could infer the importance of that particular case, especially in the case of repeat offenders. She suggested that a script be made up that could be used by the code officer in the presentation of the cases that would allow the board to know that the matter was a problem, but was not particularly 7 Meeting Minutes Code Compliance Board Workshop Boynton Beach, Florida August 5, 2005 grave in nature. On hearing the description by the code officer, the board would understand this without the code officer having to say anything further. The typical scenario currently is this: The code officer makes his case for the City. The board asks the code officer for his recommendation. The code officer says, "30 days, $25/day." The board makes a motion according to that recommendation. Instead of following this scenario, Attorney Tolces said the board could ask these questions: · Is this something that needs to be taken care of immediately? · How long should this kind of issue take to resolve? . Is this a life/safety/health issue? . Is this homeowner a repeat offender? Armed with this information, the board could then proceed to make a judgment about the number of days to grant for compliance and the appropriate proposed fine if compliance is not achieved by that date. Vice Chair Cook suggested that the answers to these questions could be made a part of the code officer's standard presentation format. Chair Costantino asked Mr. Blasie if he had any suggestions for moving things along any faster at the meetings. Mr. Blasie thought the board was doing a fine job of moving things along and said that some things could not be avoided. Attorney Tolces said he had been on other boards that heard a third of the cases that this one did and they took just as long if not longer to process the cases. He thought the board was doing a remarkable amount of work. Mr. Foot asked Mr. Blasie if he heard any problems from the homeowners after the meetings as to the fines not being appropriate or the amount of time allowed not being enough. Mr. Blasie responded they had not received any negative feedback. Vice Chair Cook expressed appreciation for the bilingual code inspector (English/Creole), and Mr. Blasie agreed and commented that they desperately needed someone who speaks Spanish as well. The Code Office now has a bilingual individual at the front desk and this had been very helpful. Vice Chair Cook stated that the code inspectors were a wonderful, professional group. They work hard and do try to give forth a professional aura when on the stand. Minutes Changes Mr. Foot said he was not at the meeting where it was decided that consideration of changes to minutes would only be possible if the recommended changes were given in writing to the Board Chair on the Monday before the meeting. He asked what the motivation was behind that. 8 Meeting Minutes Code Compliance Board Workshop Boynton Beach, Florida August 5, 2005_ Chair Costantino said that she and others on the board had a problem with the way Mr. Foot presents his changes to the minutes. The way Mr. Foot had spoken to Ms. Catherine Wharton was the most unprofessional act she had ever seen. She was shaken, crying, and it did not reflect well on the Chair or on the board. She had done her best to chair the board and had never spoken disrespectfully to anyone. The easiest way to handle the matter is to have all changes to the minutes directed to her and she would make them. This will help in clarity and there will be no additional comments. Mr. Foot heard her concerns and to put things in perspective, he had been rushed at that meeting because he was late. The meeting was called to order before he got to his seat. He was at a loss to get in front of him the materials he needed to make a proper presentation. He was not normally abusive, as Chair Costantino had agreed when she called him about Ms. Wharton's resignation. He was surprised to hear now that she and others had concerns. Mr. Foot was sorry Ms. Wharton had chosen to leave the City. There were some obvious problems with her minutes and Mr. Bressner and Commissioner McKoy had listened to the CD of the meeting. Mr. Bressner thought that Mr. Foot should have spoken to Ms. Wharton before the meeting so it would not come up during the meeting. Ms. Wharton had sent Mr. Foot a draft of the minutes of the previous meeting and Mr. Foot had responded to her with the suggestions he believed she should make. He was attentive to the minutes of the meeting because to him, they were the final record. He thought more members should be attentive to the minutes. If there were a value in submitting their changes to the minutes before the meeting, the value would come in the suggestions being distributed to everybody at the start of the meeting, so everyone would have them in front of them and not be puzzled about what the changes were. Attorney Tolces referred to the suggestion for the changes to the minutes being submitted before the meetings, saying the best thing would be to submit the changes directly to Diane Springer. Ms. Springer could make copies for each board member and the person approving the minutes would simply state that the minutes were approved with the changes as submitted. City Manager Bressner felt that having the minutes corrections sent prior to the meeting was the Chair's prerogative. He thought that if Ms. Springer could make the copies and provide them to the board members ahead of time or at the meeting, so much the better. The earlier the changes could be sent to Ms. Springer, the better. The Chair could then call for a motion to amend the minutes according to the submitted changes. Mr. Foot had spoken to City Manager Bressner and volunteered to give the City an accurate clock, but Mr. Bressner was not considering this at this time. He felt that was a mistake and that a world-class city needed a clock that was not ahead or behind. Concerning the clock, City Manager Bressner suggested being a little flexible about the exact start of the meeting. If someone is going to be late, they should call the Clerk's office to let them know. If someone has a standing conflict that requires them to be a few minutes late, the board needs to honor that conflict and work with that member to deal with the issue. At the City Commission level, the mayor looks at the clock but says, "I see that Commissioner X is not here yet. We're going to wait just a bit." 9 Meeting Minutes Code Compliance Board Workshop Boynton Beach, Florida August 5, 2005 City Manager Bressner advised the board that Mr. Foot had a standing conflict that prevents him from being at the meeting CXJctly Jt 7:00 p.m. much before 7:00 p.m. Vice Chair Cook stated this was the first time she had heard about Mr. Foot's standing conflict and that now the board was aware of it, the board should be more respectful of that conflict. The board could adjust the start time to allow Mr. Foot a little more latitude. Ms. Simshauser said she reads the minutes but does not check for grammar. Attorney Tolces said the minutes were supposed to reflect the actions the board took at the meeting. The board members did not necessarily have to be concerned about grammar, but more about content. Chair Costantino stated if the minutes said something that would change the course of the actions that had been taken, this would have to be brought to light. City Manager Bressner had to leave and the board thanked him. Ms. Springer said she reads the minutes and if she finds a conflict, before sending out her board orders, she asks the City Clerk's office to listen to the CD to verify it. If there is a conflict, she gives the information to Chair Costantino or Vice Chair Cook to present at the board meeting. Things having to do with the case number, the person's name, the amount of the fine, or the compliance date, Ms. Springer will find. Chair Costantino asked that her email addressbechangedtocamprmom@adelohia.net in the City Clerk's records. Chair Costantino has the minutes emailed to her when the City Clerk's office completes them. The board members may use this address to submit their changes to the minutes. Chair Costantino will then forward them to Ms. Springer. Cease and Desist Orders Mr. Blasie said they had done a Cease and Desist Order at a recent meeting that commenced 30 days in the future. Ms. Springer asked why they were not given a regular board order with a daily fine. Typically a Cease and Desist order would commence immediately and typically would concern life/health/safety and the board would look for direction from staff. The board recalled this was the roll off garbage case. Vice Chair Cook thought they were asking the violator to cease and desist his roll off dumpster business, but giving him 30 days in which to remove the equipment. Other board members agreed with that interpretation. In retrospect, splitting this into two orders would have been clearer. Mr. Yerzey asked how the board determined the amount of a fine. Mr. Blasie responded that the statute called for consideration of the following three parameters: 1) the gravity of the violation, 2) the efforts made to clear up the violation, and 3) whether the violator was a repeat offender. Mr. Blasie said the board could go to $1,000 the first time around. Attorney Tolces stated that the lowest fine this board had instituted, historically, was $25.00. Vice Chair Cook stated that if they made a motion and the board did not agree with the fine proposed, there would not be a second to the motion. Or, the 10 Meeting Minutes Code Compliance Board Workshop Boynton Beach, Florida August 5, 2005 motion might get seconded, but if two or three people disagree after discussion, the motion could fail. Attorney Tolces said that many boards operated under the procedure that in order to discuss a matter, a motion has to be made and seconded. It could move the board's process along if after the inspector's presentation and all the questions had been answered that someone makes a motion and someone else seconds it. Then the board can discuss whether that fine is appropriate. If no further discussion, the Chair can simply call the question and have a vote. Mr. Foot stated that if the person who made the motion says he did not hear any support, even though he had a second, he can withdraw his motion or it can be amended. Mr. Foot tries to say, "For discussion, what about a fine of $25 per day after 30 days." Mr. Yerzy asked a question about a conflict between homeowner association ordinances and agreements and City codes. Mr. Blasie said everyone had to conform to the City's Codes, but many have to comply with local regulations, i.e. homeowner associations, also. Sometimes, associations bring actions against a resident for the same things that came before the board. It would be nice if the City did not have to go into associations, but there were other instances with associations that did not directly relate to the homeowner such as plantings, signage, parking lots, and so forth. Board members and staff alike seemed to enjoy this opportunity to air feelings and thoughts about making the Code compliance/enforcement activity as efficient as possible. The meeting was adjourned at 4:21 p.m. Respectfully submitted, ~~J san Collins Recording Secretary (081905) 11