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Minutes 07-05-07 MINUTES OF THE BOYNTON BEACH BUILDING BOARD OF ADJUSTMENT AND APPEALS MEETING HELD IN COMMISSION CHAMBERS, CITY HALL ON THURSDAY, JULY 5,2007 AT 6:30 PM, BOYNTON BEACH, FLORIDA Present: Milton Russell, Chair Michael Bessell, Vice Chair Beverly Agee Richard Kurtz Frank Lindsay Robert Bonagura Bill Bucklew, Chief Building Official Mike Cirullo, Jr., Assistant City Attorney Absent: Sanford Guritzky Brita Peterson, Alternate A. Call to Order Chair Russell called the meeting to order at 6:30 p.m. The Recording Secretary called the roll and declared a quorum was present. B. Acknowledgment of Members and Visitors Chairman Russell acknowledged the presence of the board members. C. Approval of Agenda and Minutes (November 10, 2005) Motion A motion was made by Mr. Kurtz to approve the minutes as presented. Mr. Lindsay seconded the motion that unanimously passed. Assistant City Attorney Cirullo administered the oath to all who would be testifying. Attorney Cirullo announced the hearing was an appeal filed by Ralph and Rosies, Inc. of a determination by the City to revoke their Local Business Tax Receipt, due to a decision made by the City Code Enforcement Board finding there were alterations made to the site without receive approved site plan amendments. Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL July 5,2007 Attorney Cirullo announced the board would hear the review being made pursuant to the City Code of Ordinances, Section 13-18 requiring all appeals be presented to the Building Board of Adjustment and Appeals for review. The City must present its case first, to demonstrate the violation of law and the initial burden of proof of the Code violation, rests on the City. The appellant then had the right to provide information to repeal the issue. At the conclusion of the hearing, a determination would be made on whether to uphold the appeal or reverse it. Attorney Cirullo explained the board would make a determination based on substantial competent evidence, which is the same standard used by the courts. Bill Bucklew, Chief Building Official presented an overview of the case and indicated: 1. Section 13-18 indicated in Section A, the City may refuse to issue, reissue or transfer any license when issuance results in violation of City, County or State laws or when the Code Enforcement Board has issued an order finding a violation or imposing a fine and the violation has not been corrected, or the fine is outstanding. 2. Section 13-18 C indicates the City has the right and authority to revoke any business tax receipt granted under the chapter, when there is activity carried on by the licensee that constitutes a violation of any applicable city, county or State law. A letter was included in the meeting materials from Maxime Dacoste, Zoning and Business Tax Manager to that effect. Mr. Bucklew explained the City would establish that all three of those conditions in Section A had been met. Mr. Bucklew referenced the following: Condition 1 was a letter dated April 12, 2007 (City Exhibit #1) from Ed Breese, City Planning and Zoning Department pertaining to a submittal for a site plan amendment that needs to be addressed by the applicants before a site plan modification can be considered. It referenced Code items that needed to be corrected on the site plan before it could be approved and Condition 1 of Section 13-18A. Conditions 2 and 3 consisted of testimony from Diane Springer, City of Boynton Beach Police Department, Code Compliance Division, with reference to the Code Enforcement Board Order. Diane Springer, Administrative Assistant, Code Compliance Division of the Police Department. She distributed a packet of information, City Composite Exhibit #2. Ms. Springer testified the case originated on February 9, 2007, at 2007 S. Federal Highway. Ralph and Rosies Inc. is a commercial property and the case was a department referral Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL July 5, 2007 from Planning and Development. She reported an officer went to the site and found the violation of PT3 LDR, Chp 4 Sec 2, Maintenance of Site Plan and she read the referenced section of the Code. Ms. Springer also testified they were also sited for PT3, LDR Chp 4, Sec 2A-3 modification of site plan and she read the applicable section of the Code having to do with exterior modeling, remodeling, alterations and modifications. Ms. Springer testified Officer Willie Webb went to the site on February 9, 2007 attempting to serve Mr. DeVita with a notice of violation and a notice of hearing for the violations on the property. Mr. DeVita refused to sign the notices and Officer Webb requested a police officer accompany him as a witness. Officer Jacqueline Smith of the Boynton Beach Police Department responded and witnessed Mr. DeVita refusing to sign the notices. On February 10, 2007 service was obtained by posting the property located at 2007 S. Federal Highway as required by Florida Statute (F.S.) 162. The notice of violation included a narrative, which read, "Cease and Desist construction activity until site plan modification has been obtained from the Planning and Zoning Department." The notice of hearing notified the respondent that the case would be presented to the Code Compliance Board on February 21, 2007. On the same date Officer Webb conducted another inspection and found construction had not ceased and presented the case to the board. Mr. DeVita attended that hearing. The board ruled a violation had occurred and ordered him to comply by March 3, 2007 or be fined $500 per day for each day the violation continued plus administrative costs. On March 4, 2007 an additional inspection occurred and it was found the site plan modification had not yet been approved. The notice of hearing for the March 21, 2007 Code Compliance hearing was hand carried by Officer Webb and signed for by Mr. DeVita. Mr. DeVita and his attorney, Ms. Goldman, appeared at that hearing. The board certified the fine at $500 per day plus administrative costs of $634.12 and a lien was placed on the property at that time. The order imposing penalties and liens was record in the County records on April 24, 2007. Mr. DeVita's Attorney requested the case be placed on the Code Enforcement Board Hearing Agenda on June 26, 2007 and asked for a motion to stay the board order and that motion was denied by the Code Compliance Board. Mr. DeVita submitted a request for modification on March 2, 2007. Comments were mailed to him on April 12, 2007 and nothing has been returned to the Planning and Zoning Department as of 3 p.m. this date. The property remained in non-compliance and fines were accruing daily. Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL July 5, 2007 There was one tikijchickee hut and two umbrellas and only the tikijchickee hut was in violation. Ms. Springer testified someone from Planning and Development noticed the tiki hut was being constructed, called the office, asked for Officer Webb to inspect the property and ask them to cease and desist construction. Nothing had been submitted to Planning and Development prior to February 9, 2007. Mr. Bucklew explained that concluded his presentation. Ms. Agee asked about the original site plan. It was noted the original site plan approved by the City had parking spaces. Mr. Maxime Dacoste, Zoning and Business Tax Manager, testified the originally approved the site plan did include parking spaces on which the tikijchickee hut was constructed. Those parking spaces were required by the Code in order to open the restaurant and were required parking spaces for the business. Robin Bresky, Attorney for the respondent, announced she was co-counsel with Attorney Goldman. She distributed paperwork to the board, which was a composite exhibit. Exhibit 1 was a transcript of February 21, 2007. Exhibit 2 was a receipt issued by the City, Exhibit 3 was a transcript from the March 21, 2007 hearing. Exhibit 4 was a Notice of Administrative Appeal and Exhibit 5 was an Emergency Notice of Appeal. Attorney Bresky announced they were appealing under Section 13-18 G, which specified a notice of appeal stays the denial of revocation of the license until the appeal process was completed. She took exception to the City's comments they were operating under Section A, 1, 2 and 3. She referenced the agenda and indicated there was a letter dated May 16, 2007. She pointed out a notice of appeal was filed on that, Exhibit B of the agenda. She contended they were only reviewing Section 13-18 A 3 that was the nature of the letter and the nature of the appeal. Attorney Bresky indicated Exhibit 1 was not applicable and the letter of April 12, did not give a date in which they needed to respond. Mr. Kurtz asked whether the motion dated July 3, 2007 negated any of the procedures they were to determine. Attorney Cirullo explained the property owner had appealed the Code Enforcement Order which is pending in Circuit Court of Palm Beach County. They are seeking a stay and the motion was filed this week for the stay. Attorney Bresky explained the procedure to file the appeal was they needed to file a motion to stay in a lower tribunal and have it heard. Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL July 5, 2007 Ms. Agee asked when a site modification was submitted. Attorney Bresky provided a narrative. Her clients were cited for violations and the narrative indicated they were to cease construction, but construction had already been completed at the time they were cited. She explained a permit to erect a tikijchickee hut, under Florida Statute and codified by the City Ordinance, is not required. Attorney Bresky announced her client had no idea he needed any type of compliance because he was told he didn't need a building permit. She explained the minutes and transcript do not reflect he needed such and offered the following: 1. Mr. DeVita was cited for violations and the ones they were cited for were to cease and desist construction. 2. Construction was already completed at the time they received the violation. A permit to construct a tikijchickee hut was not required. She explained the minutes and transcript reflects her client had no idea he needed to obtain compliance because he was told he did not need a building permit. Florida Statute, and the Building Code specified he did not need a permit. 3. They were not arguing notice issue and Attorney Bresky announced her client was served and noticed properly. 4. The violations the restaurant had were to cease and desist, but the issue was the construction was already completed. 5. When the February 21, 2007, there was a hearing before Code Compliance Board and the members deliberated what Mr. DeVita had to do. Attorney Bresky announced the transcript would show the minutes were incorrect. At that hearing, the Code Compliance Board advised Mr. DeVita he had 10 days to come into compliance in the sense of turning in a survey to get the modification. (Exhibit 2) Attorney Bresky reported Mr. DeVita did that and Exhibit 2 was a receipt for turning in the survey on March the 1st. Attorney Bresky reported the Code Enforcement Board was confused because they thought he was required to tear down the structure. She advised her client was never told to tear down the structure. They never told him at the February 21, 2007 to tear down the structure and Attorney Bresky announced that at the hearing Assistant City Attorney Tolces advised they just had to submit the paperwork. On March 21, 2007 the board said you are not in compliance, you didn't tear it down and that is when they found him in violation and entered the order imposing the liens and fines. Attorney Bresky alleged he was denied due process because he was not told what he had to do to come into compliance. Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL July 5, 2007 Attorney Bresky explained, the Code Compliance Board advised it was not their job to advise how to come into compliance, but at the prior hearing he was told what to do to come into compliance and it was opposite from what they expected him to do at the next hearing. They did not feel Mr. DeVita was given due notice of what he needed to do to come into compliance. Pursuant to appellate rules of procedure they asked for a motion to stay. They wanted to stop the fines from accruing. They also wanted to stop this proceeding because they did not want the occupational license to be revoked. She announced it would be a hardship on Ralph and it would be the fault of the City if the license is revoked and then the court finds there was no due process. She indicated if the restaurant is shut down and put out of business, the damage would be irreparable. The motion to stay was heard last week and in order to stall for more time, they had to ask for the instant appeal here. They were asking this board to let the Circuit Court review what the procedures were and if carried out correctly or incorrectly, before revoking. She also asserted her client was in compliance, and the order on which the May 16, 2007 letter was based was incorrect. The board discussed, under state law, a permit was not needed to construct a tikijchickee hut. Mr. Kurtz asked whether it was exempt from meeting all hurricane requirements. Attorney Bresky only knew it was exempt from needing a building permit. Mr. Bucklew explained that issue was addressed in item 1 of Mr. Breese's letter of April 12, which indicated the statutes do state that a tikijchickee hut, if constructed by a member of the Seminole or Mikusukie tribe, carrying a card designating him as such, the structure is exempt from the Florida Building Code Structural requirements. The letter points out however, in item two, when the hut meets the state statutory definition of a chickee hut (open structure, free standing, thatched roof structure, no electrical or water), that the structure was exempt from the Florida Building Code Structural Code requirements. A permit application, however, was required to ensure compliance of the zoning regulations and Fire Safety Codes. Attorney Bresky explained the board was only to decide the May 16th letter and what was based on that letter. Vice Chair Bessell noted the photos show there were poles sunk into the ground, which would make the structure a permanent structure. Mr. Bucklew explained the statute does not distinguish between temporary or permanent. The Building Code and the administrative amendments to the Florida Building Code allowing the Building Official to permit temporary structures, (defined in the administrative amendments to the Building Code), but typically a temporary structure only exists for a six-month period of time. In Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL July 5, 2007 this instance, it did not appear to meet the definition of a temporary structure and it could be assumed it was a permanent structure. Attorney Bresky referenced Section 13-18 E. The burden of proof rests on the City. She reiterated they were only reviewing Section A.3 because that was what the May 16th letter was based on. She further reviewed the burden of proof shifts to the applicant to prove its exempt status, that the State Code violation has been corrected or the fine had been paid. She explained they were in process of reviewing with the court whether the violation was appropriate, they would correct. She asserted it was not appropriate. The February 21, 2007 transcript, pg 19, line 16. She read a statement made by Attorney Tolces and the motion and fine amount later in the transcript. She explained it indicated the restaurant had 10 days to turn in paperwork, which he did. She referenced Exhibit E and explained no place on the February 21, 2007 hearing was he told to tear down the structure and the Code does not say that is what you need to do to come into compliance. She referenced the applicants Exhibit 3, a hearing of March 21, 2007 and read portions of it. She explained he was given the violation that told him to modify the site plan, which he did and was waiting to reply. She reported the transcripts give conflicting information on what he needed to do. She explained the discussion before the motion was made and issued on March 21, 2007 discussed the amount of time to allow Mr. DeVita to come into compliance. That order was being appealed to the Circuit Court. An administrative appeal was issued on April 30th; Exhibit 4 and that order is what generated the May 16th letter. Attorney Bresky included their notice of appeal of the intent to revoke occupational license. She indicated it was not until June 27th, via email at 4:21, that she learned they would have this hearing. On July 3rd, the agenda packet was delivered to her office and there was a time problem. There was a motion to stay on the Code Compliance; they are waiting for the Circuit Court rules that there would be a stay. In the appellate rules, there are rules, that do not apply here, but do have merit, that indicate if an occupational license is revoked, they would then appeal the circuit court and they would enter a stay, unless there was some type of public safety concern. She was not aware of any public safety concern or hazard. She requested the occupational license not be revoked, let their license stand, they grant the appeal or alternatively make an oral motion to stay the proceedings and not enforce revocation of the license until the Circuit Court has had a chance to review the proceeding otherwise there will be irreparable damage. Attorney Bresky explained next month, their initial brief will be issued. They have the transcripts and she thought it would be done fairly quickly. Attorney Cirullo agreed and explained the appeal process. He anticipated the process would be about 60-90 days Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL July 5, 2007 for the written arguments, and the appeal process taking between three to six months and perhaps eight months on the outside. Ms. Agee explained this is a dual track system. Attorney Cirullo responded it was. The Code Enforcement Board found a violation and a subsequent finding. They decided to levy a fine and that is what was being appealed. When that happened, the City initiated action on the Occupational License and it comes to this board. The Order under appeal is the second order certifying the fine. The reason they were contending the fine wasn't appropriate was because of what happened with the violations issued and with the first hearing. Ms. Bresky disagreed with Attorney Cirullo and felt if this board revoked the occupational license, that will shut down his restaurant and their livelihood was at stake. Ms. Agee expressed concern. She commented Mr. DeVita had already constructed the hut and that was when Officer Webb came out and cited him for violation of the site plan. Attorney Bresky explained the issue today was whether the liens were imposed correctly and stemming from that, can you revoke his occupational license. Mr. Bucklew addressed Attorney Bresky's comments which indicated its not relevant and the only reason they were here was because of Condition 3, the Code Enforcement. Mr. Bucklew clarified why issue #1 was relevant and referenced Mr. Breese's letter #2, April 12, 2007 (City exhibit #1) which had to do with ensuring compliance with zoning requirements and fire safety codes. Rick Lee, Plan Reviewer for the Fire Engineering Division, was present to testify the existence of this structure, outside the principal entrance of the building and being as flammable as the structure is, constituted a life safety hazard for the people entering and exiting the building. There is documentation and pictures from the Code Hearing showing tables under the structure. It is a flammable structure and Mr. Breeses comments specified the Fire Department had to review anything affecting life safety. Attorney Bresky objected to the comments being taken into the record and asserted the hearing was on the May 16, 2007 letter only. Ms. Agee questioned as a small businessman operating for a number of years, wouldn't he recognize that even if he obtained a verbal okay, it would still be insufficient, even with Native Americans or Indians doing the construction, wouldn't he be concerned about ensuring all the other responsibilities of a builder or business owner, were followed. Attorney Bresky explained he did. Ms. Agee explained, Mr. DeVita obtained a verbal okay, and he used Native Americans to construct it, but did not go further to ensure the parking spaces would not be reduced and he did not make sure there were not issues with fire. Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL July 5, 2007 Vice Chair Bessell asked about the original occupational license, and the business owner knowing an occupational license had to be obtained before opening the business and he had to submit the site plan at that time. Vice Chair Bessell contended Mr. DeVita knew this up front because he originally opened the business as Ralph & Rosies, Inc. with that site plan. He got all the approvals up front. Attorney Bresky went off record. Ralph DeVita, Jr. part owner of Ralph & Rosies, Inc,. was present and announced he was the property owner since September 11, 2001. He explained they operated the business as a 44-seat restaurant that it's currently licensed as and the Code only required 17 spots and they have 23 spots total. The tikijchickee hut constructed over the four spots do not inhibit anything else other than allowing people to park there. He requested covered parking in his letter of the plan modification. When the tikijchickee hut was constructed, Carl Schwartz, in the presence of Officer Webb approved the hut. Mr. DeVita reported they entered the property, read from a book that if a tikijchickee hut was built by the Seminole Indians and was allowed to be built by the Seminole Indians and it didn't need a permit. He testified the next day, Officer Webb, advised there was a violation that had to go to zoning because a member of Planning and Zoning, Don Johnson, issued the order because they did not have a plan modification. Mr. DeVita explained he knew nothing about the modificatio, it was a free standing tikijchickee hut. He advised there were many in existence in the City, including one at his home, put up by the Seminole Indians. He announced under the various laws, it was all right for the Indians to build it. He explained it was one thing after another and he was just trying to operate a business. He believed he was operating under the realm of what was supposed to be in Boynton Beach. The structure wasn't even a fire hazard because it had no walls. Carl Swierzko, Chief Field Inspector, City of Boynton Beach testified during the time period referenced by Mr. DeVita, the construction occurring at the time was not the chickeejtiki depicted in the picture. It was the two umbrellas in the photo at that time. He was called out by Code Compliance to respond to a structure being constructed without a permit. He advised Officer Webb, the Boynton Beach Police Department, the property owner and the natives on site at the time, that he could not stop the construction because a building permit was not required for a chickee or those umbrellas under Florida Statute. The large chickee shown was not constructed or completed at that time. He did explain he could not stop them, but they would have to contend with Code Compliance for zoning issues. Attorney Bresky referred the board to Exhibit E of the agenda, explained the narrative specifies the construction activity should cease and desist until such time as he obtained site plan modification from Planning and Zoning. She advised the construction was Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL July 5, 2007 already completed. Attorney Bresky said the board might be hearing from them again because it was the same Code and Mr. DeVita had a tikijchickee hut on his house. Attorney Bresky explained PT3 LDR Chp 4 was one violation. In the narrative, they said Cease and Desist construction activity until site plan activity was obtained. Then on May 21, 2007, they came to his home and served him. The notice indicated he must remove the structure. The notice he received at the restaurant indicated he needed site plan modification. She requested letting the court decide if there was due process before revoking the license. Mr. Bucklew contended what occurs at Mr. DeVita's home residence is not relevant to the commercial property and the failure to obtain a modified site plan for the tiki hut there. The City was not contending a building permit was required, it was asserting upon submittal of the modified site plan, he was notified in the April 12, 2007 he did need to meet the zoning requirements and the Fire Department requirements for Life Safety. Mr. Bucklew confirmed for Ms. Agee, when Mr.DeVita submitted the modified site plan, it was reviewed, and the result of the review was contained in Mr. Breese's letter. Attorney Bresky contended the reason why the occupational license was being revoked, according to the May 16, 2007 letter, was because the fines were outstanding and incorrectly assessed. She contended the violation at his home gave a different narrative and the April 12, 2007 letter did not contain a time frame to correct the violation. Mr. Bucklew read the May 16, 2007 letter and explained it indicated as a result of the finding of a violation of the Code Compliance Board, pursuant to Section 13-18.A.2., that the revocation was authorized due to Ralph and Rose, Inc. currently being in violation of the relevant City Codes as determined by the Code Compliance Board. It does not say anything pertaining to liens being filed and that is why the City is taking the action to revoke the license. Mr. Bucklew also thought it was important to address the life safety issues due to the structure being made of flammable material outside a principal entrance to the building. Attorney Bresky explained there was no electricity there. She explained as a result of the Code Compliance Board action, the order was certified and recorded in the public records of Palm Beach County. She explained as a result of the finding of a violation, the City intends to revoke the license and argued the letter discussed the fines and liens and the order recorded. Mr. Bucklew differed with the thoughts expressed by Attorney Bresky. He clarified the Code Enforcement process was a two-step process and is contained in Florida Statute 162. First, the violator is found in violation and an order is usually issued giving the Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL July 5, 2007 respondent time to bring the property into compliance. If the property is not brought into compliance, a second order is issued that constitutes a fine and lien against the property. Section 13-18 of the Code of Ordinances, Section A.2 indicates when the City's Code Enforcement Board has issued an order finding a Code violation and the violation has not been corrected, that would refer back to the very first Code hearing where the order finding a violation was entered. Number 3 of 13-18 A indicated when the City's Code Enforcement Board has issued a fine and the fine remains unpaid, both of those conditions have been met, otherwise the Code Enforcement Board would not have imposed the fine. That was contained in F.S. 162. Attorney Bresky contended, however, her client did comply with the initial Code violation by bringing in the survey, Exhibit 2, and then he was fined later on another issue. She alleged then they try to revoke the occupational license. She thought the process was terribly unfair and she thought the City was trying to revoke the license because he was found in violation and fined, when he complied. Mr. Bucklew explained the City's response to the points just made are the appeal process to the Circuit Court for the Code Order, not the appeal to this board. Attorney Cirullo explained the letter had some degree of interpretation. Rick Lee, Plan Reviewer for the Fire Engineering Division and Certified Fire Protection Specialist hired by the City for Code Compliance, Code interpretation and plan review, was put under oath. Attorney Bresky objected to the testimony. In her opinion, it was not relevant. Mr. Lee explained the objection to the tikijchickee hut was simple. The hut was a flammable material. They tried to work with Mr. DeVita and referred him to places that could spray fire retardant on the structure. That was all that was asked of Mr. DeVita. He testified there was no electricity but it was reasonable to assume that people would park under the hut and there were sources of ignition besides electricity. Mr. Lee explained their issue was for the people on the inside of the restaurant, it was the only way out of building. They did not want the building on fire. Also, with the building, fire codes, etc, when building plans are reviewed when the buildings are constructed, materials and assemblies could only be used in the manner in which they were approved by a recognized testing agency or good practices. The structural numbers of the building were not approved with a combustible source right up against the building. Additionally, the other remedy offered was for him to obtain a fire protection engineer to tell you what you need to do to make this okay. There could be some distance between the Chickee hut/tiki or perhaps another remedy offered to the City besides just having it fire resistant treated each year. The structure does present an extra source of ignition and the State Codes, NFPA 1 and 101 and Building Construction Code for NFPA, require even for a fire resistant tent, that certain things be made. One is that Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL July 5, 2007 vegetation be kept away even from a tent, many of which are open air. Car dealers have their offices under tents and they have criteria to has to be met as well. Ms. Agee asked whether Mr. DeVita was using the tiki hut to park cars there. Mr. Lee explained that was Mr. DeVita's decision but their issue was under both circumstances, that the structure be fire retardant. Mr. Lee noted lighting was removed from the structure, but during special events, there were candles on plastic tables under the hut, which was unacceptable. Attorney Bresky asked if there were any violations of that nature brought before the board. Mr. Lee did not know if any violations from the fire department came before any City Boards. She contended fire issues have not been before the City and not applicable to this case and are separate. She asserted the board was convened to consider the fine issues and the intent to revoke. Mr. Bucklew reasserted section 13-18C allows the City to revoke the license whenever it's made to appear that the business method, operation or work being conducted or carried on by the licensee, which constitutes the violation of any applicable City, County or State law. The testimony deals with the revocation of the license stated basically, the licensee is in violation of the applicable City, County and State Fire Code. Attorney Bresky explained there was no intent written or letter on which to appeal an intent, based on the Fire Code. The appeal was the revocation based on the liens. Attorney Bresky insisted it was the issue, and he would suffer damage and irreparable harm and it would be the fault of the City. Mr. Lee explained they had been trying to work with Mr. DeVita and they did not want to put him out of business, but once a fire violation is issued, there has to be a remedy. There would be a time certain to comply or hire a fire watch, or close his doors. Mr. Lee explained to Attorney Bresky that was why they have not issued a violation yet. Attorney Cirullo clarified the City has the right to revoke the license when it's made to appear when the work violates applicable laws. When the City makes that determination, they are required to provide at least 15 days notice to the property owner and the property owner has the right to appeal it to the City, and subsequently to this board. The City presents its case first, supporting the determination there was a violation. The appellant has the right to rebut that and demonstrate it's not accurate. He explained factually, the Code Enforcement Board has an order finding a violation on that case. It went back to the board and a subsequent order issued finding the first order was not complied with and remained in violation. Right or wrong, that was the subject of the appeal. The board had to make a determination whether the City's determination should be upheld, that there was a violation of the applicable State law. Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL July 5, 2007 Attorney Bresky thanked the board for listening to the arguments. Vice Chair Bessell asked what Mr. DeVita has done to get site plan approval from the City. He explained he did not believe Mr. DeVita followed through and did anything to comply except file an appeal. The following is a verbatim excerpt requested by Attorney Ciru//o. Attorney Bresky: Respectfully, you know, the issue is he turned in the survey in order to generate what needs to be done to modify the site plan. And I think that this has been alittle bit confusing with regards to all of the things that have happened and in regard to the violation of due process. And my client now feels that things are on hold because they are in the judicial system and we are appealing the order so, you know, in answer to your question. Vice Chair Bessell: The only thing, the only thing you're appealing is a fine and the procedure. My question is why is he not pursuing the site plan modification at this pOint? Attorney Bresky: Well if it is found that he needs to tear down the structure. Vice Chair Bessell: Well he has one of, there is two remedies, take it down or get it approved. Attorney Bresky: Correct. Vice Chair Bessell: Simple. Attorney Bresky: And if its found he needs to tear it down, he, it would, it would be moot, the issue of going through the steps. So I, I you know certainly will, uh, direct him and ask him to comply with, um, what he can do with regards to this letter. Again I don't feel this is the nature of what we are here on with this letter of April 12. Uh __ Vice Chair Bessell: No we're here, we're here to, uh, hear the appeal of the revocation of the license tax. That's all. That's all. Attorney Bresky: But - I agree. Vice Chair Bessell: Mr. Chairman, I'd like to make a motion. Chair Russell: It's open for discussion before we make a motion. Before you entertain a motion can you have discussion? Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL July 5, 2007 Unknown: He didn't make the motion. Vice Chair Bessell: I've been asked not to make it yet - - Chair Russell: He didn't make the motion. Uh, we open to discussion before we make it. The board, okay, you can make your motion. Vice Chair Bessell: I'd like to make a motion that this individual has his license tax revoked, that we pursue it through the Building Official's decision, that we uphold the decision of the Building Official to revoke it. We can put a stay on that and make it contingent, you know give him 60 days notice that if he does not comply in 60 days it's gonna be revoked, we can do something like that. So my motion would be, with the Attorney's approval, to uphold the decision of the Building Official, revoke the license and give him 60 days to comply. That's fair. I mean how much longer does it take? He can go to the Building Department, he can go to the Planning and Zoning Department, he can beat on somebody's desk and say I want this done. Help me. Attorney Cirullo: So you're basically -- Vice Chair Bessell: I'm saying I'm going to find him in violation, give him 60 days to comply or. Attorney Cirullo: Well, what I'm saying, what I'm trying to phrase it in a way. Vice Chair Bessell: Yes. Attorney Cirullo: That, that fits within the Code and the ability if they chose to um, you are affirming the revocation? Vice Chair Bessell: Yes. Attorney Cirullo: But with the condition that it will be effective in 60 days from the date of your order. Vice Chair Bessell: If that is acceptable and if I can get a second and if the life safety issues are not going to cause somebody to die between now and then which we don't know. Mr. Kurtz: I second the motion. Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL July 5, 2007 Ms. Agee: I'd like to make an amendment, Id like to make one consideration, uh before we vote on the motion. Since the City has, since the City's position is that he's violated three sections of 13.18 A, I'd like to make a determination, as to, by this board as to whether he has violated all three sections before we rule on the motion made by. Attorney Cirullo: Well I, I, I think, you all, like I said, we actually, although there's a reference to 13-18A, okay. Um, if you want to go through make the factual determinations, you know that's your perogative, but you're also reviewing it because the City made a determination that there's a violation of law. If your motion says that you agree that there's a violation of law, um, and the record, and it supports the affirmants, that's really all you need to do. Mr. Kurtz: Right. As the seconder of the motion, I would agree with that. I don't think we have to go through the individual counts of the motion. The maker of the motion, in his mind seemed to indicate that he was convinced that there were violations of the three statues that you pointed out. Therefore I don't think we have to go through them individually, in my opinion, and I continue my, my second of that original motion. Ms. Agee: Based on what the City Attorney said, and what you said, I withdraw my request. Attorney Cirullo: Can I, can I just ask one pOint of clarification so we don't risk any misunderstandings on this, um cause I'm not gonna, I wasn't involved on the Code cases and that be for a different forum. But with your sixty day effective, that, that would basically be to, to, as of sixty days there's no violation of the Code relating, the Zoning Code relating to the tikijchickee hut. However that is made, whether it be removal, approval of a site plan, or some other determination, but, but in sixty days there has to be no violation of the, of the site plan, um as sited in the Code case and however there's compliance, there's compliance. Vice Chair Bessell: Based upon what we've heard this evening from the different City individuals, I don't think its a problem for Mr. DaVita to work with them to get some type of compliance. And I think two months from now is more than enough time since this started back in February. Attorney Cirullo: Perhaps if I might, Mr. Bucklew, the way to come into compliance. It's as simple as two options? Get the site plan modification approved or have the chickee hut approved. Is it that simple? Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL July 5, 2007 Mr. Bucklew: It's that simple. That's correct. Attorney Cirullo: Okay. Vice Chair Bessell: I would suggest if he works diligently at this, he can get a sit down with the City and get it resolved, very quickly. Attorney Cirullo: Okay, so. I just wanted to clarify some points for the motion on record. Mr. Kurtz: My only concern would be that in this interval of time that you mentioned yourself, that we have to be aware of the fact that there obviously is a lot of critical danger here as described to us. We just have to be alittle careful that is taken into consideration, and maybe a little bit shorter than the 60 days would be more comfortable. Vice Chair Bessell: That's between you and the rest of the board. My motion was 60 days. The Fire Marshall has the option to site him for a Fire Code violation and make him put fire watch out immediately so then that eliminates safety violation but creates more expense for the gentlemen because he's got to have somebody there. Ms. Agee: I would go along with the 60 days because I think it's fair at this point, to give him the full 60 days. He's had the April 12th letter, he can use that as the basis for working with the City and I think it's a good idea to give him 60 days before we go forward with the revocation. But I think, I think anything shorter would be very hard to do. Mr. Kurtz: Mr. Chairman? Chair Russell: Yeah? Mr. Kurtz: I call for the question. Chair Russell: Yes. That the motion had been made that the, and seconded, that we give him sixty days site plan approval. All in favor let it be known by saying aye. Mr. Bonagura: I'd like that, I'd like that modified though as to what was said and that is regarding a, an inspection by the Fire Marshall or something must be done in order to make it safe from a fire standpoint cited by the Fire Marshall. Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL July 5, 2007 Attorney Cirullo: I think. Can I just ask, I don't know if that's a motion to amend the motion, but you have already had a motion called the question for a vote. Mr. Kurtz: Then we have to go back to the maker of the motion. Ms. Agee: We already called the question Attorney Cirullo: I think you should, I think you - - Mr. Kurtz: I called, I called for the question. Attorney Cirullo: Make the record clear before further discussion. Mr. Kurtz: I don't think you can make any amendments when the question is called for. Attorney Cirullo: Yeah I just want to make the record clear on the motion. Mr. Kurtz: Good. Perhaps you will let the attorney give us the capitulation of what the, uh, motion is gonna be for the record. As you see it. Attorney Cirullo: The motion was to affirm the decision by the City administration to revoke the occupational license however that revocation will not be effective until 60 days. Um, it will, it will come, it will, only and the license will stand revoked if compliance is not done within 60 days. Mr. Kurtz: Is that the understanding of the maker of the motion? Vice Chair Bessell: Yes. Yes. Mr. Kurtz: And we can you know, fudge the 60 days. It's 60 days from Monday, or 60 days from today. Attorney Cirullo: How about 60 days from the date the Order's signed by the Chair? Vice Chair Bessell: That'd be fine. And to uh, to address the discussion with the Fire Department, its strictly up to the Fire Department whatever they want to do or they need to do, its up to them, it's not up to us. Vice Chair Bessell: Okay you have heard the motion and its been seconded. All in favor, let it be known by saying aye. (Vote taken and unanimously passed.) Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL July 5, 2007 Chair Russell: The ayes have it. Ms. Kurtz: Mr. Chairman, I ask for a roll call for the vote please? Chair Russell: Yes. Beverly Agee: Aye. Vice Chair Bessell: Aye. Robert Bonagura: Aye. Richard Kurtz: Aye. Frank Lindsay: Aye. Sanford Guritzky (Milton Russell): Aye. Recording Secretary: Motion passes. Attorney Cirullo explained the board needed to elect a new Chair and Vice Chair. Motion Mr. Kurtz moved for the recommendation for Mike Bessell for the next chair for the next session of the Building Board. Ms. Agee seconded the motion that unanimously passed. Motion Mr. Kurtz moved for Milton Russell for Vice Chair for the next term of office. Ms. Agee seconded the motion that unanimously passed. Adjournment There being no further business before the board, there was consensus to adjourn. Meeting properly adjourned at 8:22 p.m. Q GJwclI Y:10YwvW2111i Catherine ChEfrry-Guberman Recording Secretary