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Minutes 02-23-06 MINUTES OF THE CODE COMPLIANCE BOARD LIEN REDUCTION MEETING HELD IN COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, FLORIDA, ON THURSDAY, FEBRUARY 23, 2006 AT 3:00 P.M. Present: Michele Costantino, Chair Kathy Cook, Vice Chair Kathleen Carroll Robert Foot Lisa Simshauser David Tolces, Board Attorney Scott Blasie, CodeAdministrator Absent: Christopher DeLiso I. Call to Order Chairman Costantino called the meeting to order at 3:00 p.m. II. Minutes Chair Costantino read following changes to the February 15, 2006 Meeting Minutes into the record: . page 17, Ms. Carroll who made the motion on the Guerrira Case . page 15, Case #05-2728 - first sentence in the motion should read January 28. 2006 . page 16, Case #05-2776 - the compliance date should be March 4. 2006 instead of April 6, 2006 . page 18, Case #15-2661 - the fine should be $50 per day instead of $40 . page 20, Case #05-2647, under "Vote", the compliance date should read January 28. 2006. There were no other changes or corrections to the minutes. Motion Ms. Simshauser moved to approve the minutes with the corrections noted above. Ms. Cook seconded the motion that unanimously passed. III. Agenda Code Compliance Administrator announced the Respondent for Case #05-2209 on page 5 is waiting for her attorney to arrive. They had requested to be moved up on the agenda, and suggested the Board continue its meeting. The Chair noted they will move forward and when the attorney arrived, they will address the matter. There was consensus that would be acceptable. Meeting Minutes Code Lien Reduction Boynton Beach, FL February 23, 2006 Motion Mr. Foot moved to approve the agenda. Ms. Carroll seconded the motion which unanimously passed. IV. Swearing In of Witnesses and Introduction Attorney Tolces administered the oath to all person who would be testifying. Code Compliance Administrator Blasie listed the cases and determined who was present. V. New Business Mr. Blasie explained the lien reduction process to the applicants. The Board's decision is forwarded to the City Commission who has seven days to review the Board's decision and to pull the case in the event they want to review the determination. Attorney Tolces explained that in order for the Board to take any action today with regard to a lien reduction, four affirmative votes are required. A. Lien Reductions Case #05-1730 Armenian Cultural Assoc. of America 850 W. Boynton Beach Blvd. Code Compliance Administrator Blasie presented Case #05-1730 and indicated the case was originally cited on July 29, 2005 for violations of the City's Code for overgrowth and downed debris, most of it probably resulting from the hurricanes. The Respondent appeared before the Board on September 21, 2005 and a date and fine was established by the Board for November 20, 2005 at $25 per day. Staff documented compliance January 21st of 2006 and the fine and associated costs had accrued. Code Compliance Administrator Blasie distributed photographs for the Board's review. Eloi Masmanian, a member of the Armenian Cultural Association Board and Secretary of the Building Committee was present. He indicated he contracted with two different companies for the tasks necessary to correct the violations. They signed a contract on October 22 of 2005 with DJKC Enterprises, who did not, due to the hurricanes, perform the work. On December 1, 2005, the Cultural Association received a notice of cancellation from them. They then contracted with Charles Johnson Landscaping and Maintenance on November 22, 2005 to clean the property. They received a letter back from Charles Johnson on December 29, 2005 indicating due to the difficulty they experienced from the City of Boynton Beach in their attempts to obtain permits, they were returning their deposit and canceling the contract. Finally, members of the Church got together and cleaned up the property. They were delayed almost six months. There were no further questions from the Board. 2 Meeting Minutes Code Lien Reduction Boynton Beach, FL February 23, 2006 Motion Based on the testimony and evidence presented in Case #05-1730, and having been advised that the Respondent has complied with all lien reduction procedures set forth in Section 2-84 through 2-89 of the City of Boynton Beach Code of Ordinances, Ms. Carroll moved that this Board rescind the fine instituted in Case # 05-1730, by virtue of this Board's Order of September 21, 2005, and that the lien imposed by that Order be released. Mr. Foot seconded the motion that unanimously passed. Code Compliance Administrator Blasie explained for the benefit of the public, the Board essentially rendering a ruling. There is a seven day appeal period where the Respondents or a City Commissioner who would review the Order. If they are not agreeable to the Order, it is forwarded to the City Commission for final hearing. He indicated typically that does not happen but it is an option. Code Compliance Administrator Blasie announced Attorney Green, representing Kathryn Ybarra was present and requested as a professional courtesy, the case be heard out of order. There were no objections to the request to hear this case next. Attorney Tolces put the parties under oath. Cases to be Heard Case #05-2209 Location: Violation: Kathryn Ybarra 720 Mission Hill Road CH15 ARTX SEC 15-121 - 124 Sexual Predators cannot establish a permanent or temporary residence within two thousand five hundred feet of any place where children congregate, Code Compliance Administrator Blasie reviewed this matter arose as a result of the City of Boynton Beach's newly adopted Sexual Offender Ordinance #05-035. He explained the violations of the code were Sections 15-121 through 124. The Respondent was originally cited on September 20, 2005 and Ms. Ybarra was notified on September 19, 2005. At that time she received a packet of information outlining the requirements. Code Compliance Administrator explained Ms. Ybarra violated the Code by moving into a property after the adoption of the Ordinance. He explained unlike other cases in the past, Ms. Ybarra owns the home. He explained he has several witnesses the following if the Board needs: . Lieutenant Chapman, City of Boynton Beach Police Department . Carissa Bingham, Crime Analyst, City of Boynton Beach, and . Grace Wilson, CAD Technician who creates the mapping to show the distance from the various sites for the City. 3 Meeting Minutes Code Lien Reduction Boynton Beach, FL February 23, 2006 James K. Green, Attorney for Ms. Ybarra was present. Ms. Kathryn Ybarra, residing at 720 Mission Hill Road, was also present. Mr. Green indicated it was not clear whether she was in violation of the Ordinance. He clarified they were not contesting whether she was an offender within the meaning of the Ordinance, and that her home is within the distance requirements. Ms. Ybarra had entered into a contract to purchase the house and paid money and began moving belongings prior to the Ordinance being considered. The closing was delayed until about two weeks after the Ordinance took effect. The Ordinance had its second reading on July 19, 2005. Ms. Ybarra had the final closing on her property approximately two weeks later. Prior to that, Ms. Ybarra had intended to establish that home as her domicile. Mr. Green explained under Florida Law, if she was keeping personal effects there and was using it for a mailing addresses, there would be a factual and legal question whether she was grandfathered into the Ordinance because she had entered into the contract and established it as her domicile, even though she did not close until 10 days after the Ordinance. Attorney Tolces specified the Ordinance was adopted at the second reading on July 19, 2005 and any grandfathering or exceptions were contained in the Ordinance, Section 15.123 0.1 of the Ordinance. One of the exceptions listed is when the person establishes permanent residency prior to July 1, 2005. Attorney Green explained Ms. Ybarra did not actually take legal title of the property until July 29, 2005 and requested the Board focus their evidence in this area of the case. Code Compliance Administrator had a copy of the Warranty Deed recorded September 19, 2005 and executed on September 15, 2005. Attorney Green announced the actual closing was on July 29, 2005. Ms. Ybarra elaborated the warranty deed was held up because there was an adjacent piece of property that was purchased and her other attorney had held the paperwork up for "consolidation" of both pieces of property, whereby both deeds are in one. She added she was supposed to close a few months before that but the seller, who was 84 years old, was dealing with other personal issues, so Ms. Ybarra did not press the issue. She indicated she was at the 720 Mission Hill Road address frequently and did everything but sleep over there. She had belongings at the premises; she ate at the premises and was a regular presence at the premises. She did not sleep at the premises. Attorney Green asked Ms. Ybarra if she received mail at the premises. Ms. Ybarra responded she received mail at the premises back in March and May. She reiterated she kept personal belongings at the premises. Ms. Ybarra had been eyeing the property for purchase in excess of 22 years and knew the property owner. When the property became available she purchased it as soon as possible. She entered into the contract for purchase on March 12, 2005. The purchase was discussed between the seller and herself and they signed papers on March 12, 2005. The initial closing date was extended from May 31, 2005 to on or before August 2005, and the purchase was an "as is" purchase contract. The date Ms. Ybarra closed was July 29, 2005. Code Compliance Administrator Blasie indicated it sounded as if the Board were hearing the matter in the reverse. He indicated it appears the respondent was contesting whether the respondent was in or out of the premises prior the July 19, 2005 Ordinance. He suggested 4 Meeting Minutes Code Lien Reduction Boynton Beach, FL February 23, 2006 hearing the case as a normal hearing, but noted the information being provided is not what the Code allows. He elaborated the Florida Department of Law Enforcement (FDLE) received the address change for Ms. Ybarra after the Ordinance was adopted, and the City feels there is a violation of the Code. Attorney Green agreed Ms. Ybarra meets the criteria of the Ordinance but the question was whether Ms. Ybarra established a residence at the premises under the definition of Florida Law. Attorney Tolces requested the Board focus on the issue of when the residence was established. Code Compliance Administrator Blasie indicated Carrisa Bingham, a Crime Analyst for the City of Boynton Beach, was present and noted she was under oath. Ms. Bingham explained the Police Department receives their information from the Florida Department of Law Enforcement (FDLE). When a sexual offender moves, FDLE requires the offender change their driver's license showing the new address within 48 hours of the move. The City received the information on August 15, 2005 from FDLE and she changed her driver's license address on August 15, 2005 to the address on Mission Hill Road. She explained in this matter, they needed to wait for the maps from engineering showing the exact distance of the school to her home. This occurred on September 20, 2005. It was noted the time limit that she has to report to FDLE that she is changing her residence is gathered from the Department of Motor Vehicles. The Ordinance indicates it takes fourteen days to establish the residence and then 48 hours to change their driver's licenses to the new address. Attorney Green asked Ms. Bingham if she agreed that a person can intend to establish a domicile by establishing a number of things such as receiving mail, keeping personal effects and signing a contract to purchase the property. Ms. Bingham responded affirmatively. Ms. Ybarra had two residences during an overlapping period of time, both in Boynton Beach and was trying to take care of some code enforcement matters on the previous residence. Ms. Bingham responded she was not aware of those violations. Code Compliance Administrator Blasie could not confirm whether there were violations at the prior residence, only that the respondent advised him there were code enforcement matters at that location. Attorney Green asked Ms. Bingham if based on Ms. Ybarra's intent to establish a domicile, whether she would be grandfathered in. Ms. Bingham responded if she had established a residence prior to July 1, 2005 and in that case, her driver's license should reflect that. Attorney Green indicated under Florida Driver's License Law she has 30 days from the date she changes her residence to change her driver's license. Ms. Bingham responded the requirement is 48 hours for sexual offenders. Attorney Green reiterated under Florida Driver's Law, she has 30 days to change the license. It was noted FDLE requires the 48 hours to change the license over, but she had two residences at the time. The second dwelling was under contract in March of 2005 and did not close until the end of July. The Chair asked Board Attorney Tolces how the Respondent could claim dual residency if she notified FDLE and changed her driver's license. Attorney Tolces clarified under Florida Law, there are many different ways to establish residence such as being able to run for office and there are different indicators as to how and when someone has established their residency as it pertains to running for office. In this instance, the Ordinance has language speaking about 5 Meeting Minutes Code Lien Reduction Boynton Beach, FL February 23, 2006 permanent residence as, "The person established the permanent residence prior to July 1, 2005." Attorney Tolces explained the Board needs to take the evidence presented and decide whether or not, based upon the testimony from the respondent and the City, Ms. Ybarra had indeed established her permanent residence prior to July 1, 2005. The Board would need to make that determination in order to recognize the defense the respondent is raising. Next if the Board finds that based upon the testimony and evidence presented to not accept the defense, the next step would be to make a finding of a violation. The Chair requested confirmation that under Florida Law, the offenders must directly file their established residence within a certain amount of time. Attorney Green requested as a point of clarification whether the Ordinance is keyed to the FDLE registration. He indicated the Ordinance uses the more general terms about residence. He further explained he is not disputing she changed her registration with FDLE on August 15, 2005, approximately 18 days after the closing, but clarified the more general Florida Law allows you to establish the permanent residence by receiving mail at a location intending that would be a permanent home and by entering into a contract to purchase or lease. He added putting up her other home for sale are all indicators. Attorney Tolces elaborated the Ordinance does not specifically refer to establishing a residence pursuant to the requirements of the registrations or requirements of Florida Statute. The Ordinance simply refers to establishing the permanent residence. The Board must take the evidence and make a determination as to when she established a permanent residence. Ms. Cook asked if she had evidence of mail being delivered to the location showing her name with a postmark at that location. She elaborated permanent residency is not taking a pair of slippers and placing them elsewhere and declaring that location as her permanent residence for that week. She did not believe permanent residency is something as little as whether or not personal belongings are there, but whether or not she was receiving all the mail there and the drivers license was changed which the law requires. In this particular case there are additional requirements Ms. Ybarra had to follow. If those items were in check, however, she could feel comfortable making a determination that the new location was a permanent residence but she would need to produce evidence. Lieutenant Chapman, City of Boynton Beach, was present and was put under oath. He explained the concept behind the registration effort statewide was to maintain the location of individuals identified as sexual predators or sexual offenders. The criteria of the state identifies what a residence would be and then the required action for individuals titled as offenders or predators to report. The only occurrence they go by is when they receive the notifications. The notification they received in this instance was after the adoption of the ordinance. He explained if she was living and establishing her residence there, they would have no knowledge. He believed she probably should have done so because the concept behind the legislation was to know where the individuals live and to be able to visit them at that address. Ms. Ybarra clarified she was sleeping at the old dwelling and she was in constant touch with Detective Larry Wood of the Palm Beach Sheriff's Office who knew she was getting ready to 6 Meeting Minutes Code Lien Reduction Boynton Beach, FL February 23, 2006 move several weeks before she did. She explained to Detective Wood she had the code compliance matter with the old house. She indicated she could not get into the Driver's License Division and had an appointment one month away. She indicated she was upset and called Detective Wood because she felt she was out of compliance, and Detective Wood indicated that was not the case. She added her old house was two blocks away. Ms. Ybarra produced an invoice bearing her name at the new address. Mr. Foot requested utility bills. Ms. Ybarra indicated she had the utilities put under her name when the seller, Ms. Miller was ready to go. Attorney Green detailed the Homestead Exemption under Florida Law is the place you intend to establish a permanent residence regardless of whether the Drivers License address shows that location. The residence she intended to establish as her permanent residence was 720 Mission Hill Road. Lieutenant Chapman explained the purpose of the statute was to have an appropriate location for the individuals and the Ordinance was to restrict that location in reference to proximity to juveniles. He explained the Police Department is a reactive agency and when the information is received, they send an officer out usually within 24 hours. He explained the only notification received is through the FDLE when the individual changes their driver's license. Lieutenant Chapman acknowledged for the purposes of establishing a homestead exemption for a permanent residence, these criteria would not apply, and were a more general criteria. Attorney Green indicated the Ordinance speaks in general terms and does not specifically key the grandfathering of the residency to the FDLE registration requirement. Attorney Green requested confirmation the prior residence, two blocks away from the new home, located at 922 SW 27th Terrace, would also had been in violation of the Ordinance. Code Compliance Administrator Blasie submitted the map as City's Exhibit 3, the Judgment as City's Exhibit 1, and the Warranty Deed as the City's Exhibit 2. It was noted the First Reading of the Ordinance occurred on July 5, 2005 and second Final Reading and passage was July 19, 2005. the Ordinance addressed individuals who move in after July 1, 2005. Ms. Ybarra had not established residency in any other state and resided in Boynton Beach for 14 years. Ms. Cook inquired if she remained at her old address and the Ordinance was enacted would she have been in violation. Lieutenant Chapman indicated she would have been fine there because she was registered at the prior location before the Ordinance was enacted; it was when she moved the matter was flagged. Code Compliance Administrator Blasie introduced Ordinance #05-035 into the record. Attorney Green asked Ms. Ybarra during the time of July 1, 2005 and August 15, 2005 when she formally changed her registration, if she was working with Detective Larry Wood, who oversees sexual offender/predators. Ms. Ybarra responded she was and she had kept in touch with him over the years. She indicated nobody knew about the Boynton Beach Ordinance. She had been looking at the home at 722 Mission Hill Road for about 22 years. She indicated she liked it because it was architecturally unique, built in 1956 and is all original to 1956. The woman who owned the home was unique to the house and she knew the family for 25 years. 7 Meeting Minutes Code Lien Reduction Boynton Beach, FL February 23, 2006 The home is on the water, in a good location and she has always loved the City of Boynton Beach and what the City stood for. It is a nice area. There was discussion about the definition of permanent residence as a place where the person abides, lodges or resides for 14 or more consecutive days. It was noted she did not sleep at the new location and it raised a question for compliance. Attorney Green agreed she did not lodge, but agreed she abided and the issue of residing was discussed earlier. The Ordinance is worded in the disjunctive; abides, lodges or resides. Attorney Green felt because it involves an issue of homeownership and home occupancy, Florida Law has always been respectful and deferential to the decisions people make about where they want to live. In terms of lodging, she did not lodge. He indicated she clearly abided there and pertaining to residing, that was discussed earlier in the meeting. The Board acknowledged this case as a heavy item for the respondent and the Board, and felt it was a subjective situation without any clear-cut establishment of fact. The Board members expressed Ms. Ybarra would probably not have the benefit of the grandfathering by having been in residence at that location prior to July 1. There was a sense that an individual does not reside at a property until it is closed and owned, with financial transactions being completed. It was also expressed that taking into account the intent of the Ordinance, Ms. Ybarra had not proven she took residency of the property before the Ordinance took effect. Attorney Tolces recommended using Motion 3, a municipal code violation. There was discussion allowing Ms. Ybarra an extended time period, short of the issue being appealed in court. It was noted if the respondent needed to move from the property, presumably she would need to sell it, and that does not happen in 30 or 60 days. It was noted the Ordinance does not demand she sell the property, she just could not reside, abide or lodge at the property . Attorney Green explained when Ms. Ybarra got the notice, they discussed legal options, one of which would be to vacate her conviction. They filed that motion which was denied January 30th and they have 30 days to file a notice of appeal, which would be due on February 28th. The appeal process would probably take a minimum of six months, and more likely 12 months. Attorney Green indicated in his experience there would be a 30 to 40 percent chance to prevail because of the importance the State of Florida places on home ownership and that issue was not contemplated in her original plea bargain. He asked the Board consider tabling the violation until the appeals court rules on it and if it ruled against her, then give her six months to move out. The Board indicated they needed to make a decision based on what they have before them today. The standard procedure is that if, at the time that is allowed, the person cannot come into compliance, they would then come back to the Board, to request some type of action. Attorney Green requested a 12 month extension. 8 Meeting Minutes Code Lien Reduction Boynton Beach, FL February 23, 2006 Motion Based on the Testimony and evidence presented in Case #05-2209, Ms. Carroll moved that Ms. Kathryn Ybarra is in violation of City of Boynton Beach Code Sections as cited, and move to order that the Respondent correct the violation on or before August 16, 2006. The Board has considered the gravity of the violation, the actions taken by the Respondent, and any previous violation by Respondent, and hereby orders that if the Respondent does not comply with this Order, a fine in the amount of $25 per day for each day the violation continues past August 16, 2006 plus Administrative Costs shall be imposed. The Respondent is further ordered to contact the City of Boynton Beach Code Compliance Division in order to arrange for re-inspection of the property to verify compliance with this Order. Ms. Simshauser seconded the motion. There was a discussion on the date. The date stood. Vote The Secretary called the Roll. The motion passed 3 - 2 with Chair Constantino and Ms. Cook dissenting. There was discussion regarding the ability for the Respondent to come back before the Board. Code Compliance Administrator Blasie indicated they could come back at the Fine Certification Hearing. Attorney Tolces explained if an individual wants to come and make that request before the Board, the Board could grant an extension or freeze the fine. Attorney Green acknowledged they would need to re-appear. The Board acknowledged it could reconsider the case, if new information is presented. Code Compliance Administrator Blasie indicated the Board can hear it but it usually only occurs when the Board has erred. Lien Reduction Code Compliance Administrator Blasie announced if there were more than one lien, he would make it known to the Board members. Case # 03-1955 105 NE 4th Ave. Eleanor Mastroianni Code Compliance Administrator Blasie presented the case and distributed photographs to the Board, which he said would suffice for both cases. Mike Parker, 502 Sunshine Drive, Delray Beach was present. He explained Ms. Mastroianni was his aunt and she had given permission for him to speak on her behalf. He indicated the red tag was for a permit for the storage room. He purchased the property at the end of 2002. Early 2003 he started noticing what needed to be repaired. That summer he did the stairs and the storage room. He got red tagged and did not know he needed a permit to finish the drywall. Then difficult tenants moved in which did not allow him to work upstairs, so he worked downstairs and it took a long time to repair the building. The summer of 2004 he was rushing to complete the repairs before the lien reduction and then hurricane Frances and Jeanne hit as well as Hurricane Wilma for a total of 16 months. He indicated he appeared for some hearings. Mr. Parker distributed information showing what the insurance paid him. The insurance paid $111,000 and he had to borrow another $37,000 to finish the repairs to the property. He had 9 Meeting Minutes Code Lien Reduction Boynton Beach, FL February 23, 2006 to basically strip and rehab it. He had an occupational license for the rental. It was noted the dwelling numbers of 103 and 105 were for each unit but within the same building. He elaborated the costs he presented were for repairs after the hurricane and he did not have receipts with him for the repair costs incurred prior to the hurricanes. Motion Based on the testimony and evidence presented in Case #03-1195, and having been advised that the Respondent has complied with all lien reduction procedures set forth in Section 2-84 through 2-89 of the City of Boynton Beach Code of Ordinances, Ms. Cook moved that this Board reduce the fines instituted in Case #03-1195, by virtue of this Board's Order of August 20, 2003 to the amount of the Administrative Costs in the amount of $730.15. Mr. Foot seconded the motion, which unanimously carried. Motion Based on the testimony and evidence presented in Case#03-2280, and having been advised that the Respondent has complied with all the lien reduction procedures set forth in Section 2- 84 through 2-89 of the City of Boynton Beach Code of Ordinances, Ms. Cook moved that this Board rescind the fine instituted in Case #03-2280 to zero with no Administrative Costs. Ms. Carroll seconded the motion. The Board noted there were administrative expenses incurred with this case and noted there would need to be a separate affidavit for it. There was discussions that the inspections were separate from one another. Vote The Chair called the question and the motion carried 4-1 with Mr. Foot dissenting. Code Compliance Administrator Blasie explained the Respondent would pay the Administrative Costs for the first case. The Respondent will contact the Code Enforcement Office to address closing issues on the refinance of this property. Case #05-0952 807 NE 2nd Court Trescia M. Green &. Steven B. Latson Code Compliance Administrator Blasie presented the case. He had photographs he distributed to the Board. Mr. Steve Latson and Trescia Green were present and indicated he was the owner of the residence. He explained the reason for the delay in the removal of the car involved his sister- in-law who is experienced financial hardship. The car was sold to her, but incurred damage to it from her ex-boyfriend who had keys to the car. Mr. Latson had attempted to repair the vehicle, but the ex-boyfriend kept damaging the car, such as putting a hole in the gas tank, putting sugar in the gas tank, etc. He was attempting to fix things such as hoses, belts and other non-major issues. A police report was made by the sister-in-law. Finally, when the last notice was received Ms. Green advised she called the Code Enforcement Department to determine the amount of the fine and learned the fine was at $11,000. It was at that point the sister-in-law agreed to give up the vehicle. There was discussion the vehicle could have been towed and some fine would be appropriate. 10 Meeting Minutes Code Lien Reduction Boynton Beach, FL February 23, 2006 Motion Based on the testimony and evidence presented in Case #05-0952 and having been advised that the Respondents have complied with all lien reduction procedures set forth in Section 2-84 through 2-89 of the City of Boynton Beach Code of Ordinances, Ms. Cook moved that this Board reduce the fines instituted in Case #05-0952 by virtue of this Board's Order of June 15, 2005 to an amount of $400, including Administrative Costs. Ms. Carroll seconded the motion that passed unanimously. Adjournment There being no further business, Mr. Foot moved to adjourn the meeting. Ms. Cook seconded the motion that unanimously passed. Meeting adjourned at 4:30 p.m. Respectfully submitted, (1 Catherine Cherry-Gu Recording Secretary 030206 !1{a1lf 11