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Minutes 02-04-10 MINUTES OF THE CODE COMPLIANCE BOARD WORKSHOP HELD ON THURSDAY, FEBRUARY 4, 2010, AT 6:30 P.M. IN CITY COMMISSION CHAMBERS, BOYNTON BEACH, FLORIDA PRESENT: Michele Costantino, Chair Scott Blasie, Code Compliance Administrator Richard Yerzy, 1st Vice Chair Shana Bridgeman, Board Attorney Jamie LaTour, 2nd Vice Chair Kathleen Carrol Robert Foot Mark Karageorge Kirk LaRock James Brake (arrived 6:34p.m.) Chair Costantino called the workshop to order at 6:30 p.m. 1. Direction from Commission/Minutes from Commission Meetings Involving Lien Reduction City Commission minutes were circulated to the members for their review depicting the Commission was interested in obtaining compliance and not fees. Chair Costantino attended the last City Commission meeting due to a lien reduction appeal on the agenda; however, she was not recognized. It was noted a few years ago a special meeting was held. The Mayor had attended and the members were advised their role was to gain compliance. The Mayor stressed that each case needed to be reviewed individually. The impact to the neighbors and neighborhood was also to be considered. While compliance was the ultimate goal, fairness and consistency needed to be part of the equation. Three instances of Lien Reduction cases were referenced. In one case, a developer acquired a property and the lien was reduced to administrative fees. He then acquired a second property and assumed he would receive the same reduction and did not. He appealed to the City Commission saying a precedent had been set. It was noted, there is no precedent set when matters are heard on a case-by- case basis, and the statement that he was told only administrative costs would be assessed was untrue. The minutes reflected that the developer 1 Meeting Minutes Code Compliance Workshop Boynton Beach, FL February 4. 2010 contacted Mr. Blasie prior to purchasing the property, and was advised the fines are usually reduced to administrative costs. The Code Compliance Board dramatically reduced the fines. Diane Springer , Code Compliance Coordinator, recalled the conversation with the developer that he received a lien reduction of only administrative fees, he wanted to know if the standards were the same and what he had to do for the lien reduction. Mr. Karageorge was familiar with the developer and several other individuals who managed properties who contacted Code Compliance. He confirmed they were advised there are “no guarantees.” Scott Blasie, Code Compliance Administrator, explained most of the inquires go directly to Ms. Springer. If not, Mr. Blasie handles the call and a standard explanation is given. Each case is reviewed independently, and staff advises the Respondent the Board reviews the case independently and is amenable to working with the applicant. In another instance, Mr. Blasie noted a couple that appealed a lien reduction provided a great deal of backup information that they failed to provide to the Code Compliance Board. The couple made no attempt for years to cure the violations, and ultimately received no fine. In another instance another party brought property into compliance within 9 days and was fined. It was Mr. Blasie’s experience, the general consensus was compliance; hence the name change from Code Enforcement to Code Compliance. Mr. Blasie explained the Commission has hundreds of pages of information for backup they do not have a long period of time to review. With the volume of lien reductions approved by the Board, and of the few that are appealed that are reduced, the Board should recognize the Commission approves over 95% of the Board’s lien reductions. . The basic homeowner is intimidated to appear. Additionally, the Commissioners are obligated to disclose if they met with someone to discuss the item. There was agreement that in the future, the applicants for lien reductions should be asked if they have anything further to present on their behalf, since the applicants present different evidence to the Commission than they do to the Board. Staff would ensure the applicants are given written instructions. Mr. Foot felt there was no written statement about what the Commission was expecting the Board to do. He also preferred to obtain consensus among the Commissioners that the Commission does not expect the Board to do more than see that the Respondent complies. He elaborated the members only had the Ordinance to guide them and Mr. Foot thought a workshop with the Commission would be appropriate. If staff, acting as prosecutor, noted the applicant acquired property in a bad neighborhood and improved it, and set an example, and if the City would like to see a reduction in an amount of so many dollars, then it should give that direction. The Board was a quasi-judicial body, and they should be basing their decisions on what they hear from the Commission 2 Meeting Minutes Code Compliance Workshop Boynton Beach, FL February 4. 2010 versus what they hear from the individuals. He thought they should look to the Commission more, similar to what occurred in Delray Beach, when an attorney spoke for the Commission indicating what they wanted. The Board also did not have the benefit of published information regarding what other cities were doing, studies or attendance at statewide meetings on Code Compliance. There was not much to work from. The Commission may take action on a particular case, but it did not provide parameters for all cases. Lien reductions were only appealable to the Commission, as opposed to a Code Enforcement case, which can be appealed to the Circuit Court. The Board is provided with more information than any other municipal Code Compliance Board. Other municipal Boards receive virtually no paper and the Board may be receiving too much information. There was discussion staff provides supporting documentation, but does not give a recommendation, which would help the Board considerably. It was also noted in the case of lien reductions, staff does not know the facts until the applicant testifies. Mr. Blasie felt any investor that makes improvements and pulls permits should be applauded. If they are penalized, they may invest in another city. It was thought staff could broker an arrangement, and Mr. Foot felt it was not the role of the Board; rather, staff should make a recommendation. Mr. Blasie responded he could make a fair and equitable recommendation, but there would be a cloud whether he had influence on one decision over another’s. Staff operates in the Sunshine, but it could be perceived as inappropriate. Mr. Blasie also pointed out the Board has never been blatantly criticized by the Commission. To his knowledge, the Commission was aware compliance is stressed. Ms. Carroll explained the Board and Mr. Blasie are not present to “prosecute” and she was not comfortable with Mr. Blasie or the City Staff telling the Board what they think should be done; rather, it is the Board’s responsibility. The Board needs to listen carefully to what is presented by staff and sit as judge on a case-by-case basis. The members should improve their listening skills. The members did not hear the property discussed involved a Respondent who upgraded a property across the street that he did not own. It was noted the case just referenced involved the Respondent acquiring the lien Mr. Brake felt the members should receive the staff’s recommendation for the cases, and if they formulate an open way to communicate that, some problems can be avoided. The Board does not see the property, but the Code Officers do, and they have infinitely more knowledge about the property, history and the area than the Board members do. He could justify his recommendation. Chair Costantino noted that in the past she and Ms. Carroll attended Florida Association of Code Enforcement classes in Orlando. She suggested they receive information about it, and determine if they could go. Mr. Blasie responded he believed the City would be 3 Meeting Minutes Code Compliance Workshop Boynton Beach, FL February 4. 2010 supportive of educational opportunities for the Board members, and he agreed to bring back information for the next agenda. There was brief discussion about Special Magistrates. Mr. Blasie explained the City maintained the Code Compliance Board because the City Commission wanted to work with its citizens. He commented Special Magistrate proceedings are cut and dried. Having the Board intact, indicates the City’s desire to work with its residents to achieve compliance. Mr. Karageorge also noted that when a Special Magistrate is used, the City is the prosecutor and the public is the Respondent. Most decisions are made in less than three minutes. In Delray Beach, the Special Magistrate is only used for the first phase of the violations and not for the issues the Board hears. 2. Size of Agenda Chair Costantino explained the last meeting was inordinately long. The February meeting would be as long as well. The members have much on their plate due to changes in Ordinances. The Board began to enforce the False Alarm Fines Code violations and the Board was now addressing foreclosures. Additionally, on the speed round, members were attempting to ascertain if the Respondent was a repeat violator, and by the time some of the members formulated an opinion, the motion had been made and staff was moving onto the next case on the agenda. Also, the last agenda contained a case that involved a basketball hoop in the street. In the past, Code Officers have assisted the residents to move the hoops off the street onto their property. It was Mr. Karageorge’s opinion that case should have never been on the agenda, when it could have been solved by the Officer and the resident. Mr. LaTour also pointed out there have been items placed in front of his house that did not belong to him. The case was petty. Chair Costantino complimented the Code Officers for doing a superb job, who work well with the public and one another. With the size of the upcoming agendas, it would bode well to concentrate on items that were not petty in nature. Mr. Blasie also offered to have the Code Officers include in their narrative whether the Respondent was a repeat offender, or it was a safety issue. Mr. Foot also felt in reference to the agenda, staff could delay bringing items before the Board. The inspectors did not necessarily have to give someone 10 days to comply, if it was not a safety issue and 30 or 60 days could be adequate, which would lessen the load. The Board could also have a Special Magistrate handle the vast part of the meetings, which was hearing from the Respondents regarding violations on first contact. The statute also provided for multiple boards. If the present case load was too lengthy for one Board, a second Board could be created, or multiple meetings could be held. 4 Meeting Minutes Code Compliance Workshop Boynton Beach, FL February 4. 2010 There was discussion the meetings, without a Magistrate, was sufficient, but due to the case load, a separate lien reduction meeting should be held. The only issue was setting the meeting time since those meetings typically met during the day. There was consensus to split the meetings and hear the lien reductions as overflow meetings. Staff could work with the lien reduction applicants and advise them their case may be heard at the next meeting, or if the agenda exceeded a certain time, they would have to be deferred. Attorney Bridgeman explained there would be problems with putting a case on the agenda and then have to defer the case because of a meeting time constraint. It was also suggested the agenda be limited to a certain number of cases. Staff preferred to hear the lien reductions at a separate meeting. After further discussion by the members, it was agreed holding the second meeting worked well in the past and there was consensus the lien reduction meetings would begin at 4:00 p.m. Staff would investigate what days the Commission Chambers were available. 3. Code Officer Testimony The Code Officers read from a form created by the City Attorney to ensure staff covered the necessary points in their testimony. It was suggested when the speed round was presented, the form be amended to include whether the case was a safety violation. Staff agreed to amend the form to include that information in the testimony. 4. Building Department Continued Participation This item was included on the agenda at Chair Constantino’s request. She put it on record how pleased she was to see staff from the Building Department attend the meetings. She advised it makes the Board’s job much easier to have testimony from the Inspector’s available because the Code Officers are not Building Inspectors. Staff agreed to convey the sentiments to Carl Swierizko, the Building Department Chief Field Inspector. Mr. Blasie explained a policy decision had been made the Building Department would continue to be present at the meetings. Chair Costantino explained Building Department testimony was instrumental in order for the Board to render fair decisions, as the facts are not always clear at first glance. Chair Costantino appreciated the additional information the Building Department provides. 5. Board Decorum This item was on the agenda because the Board was a reflection of the community and the City. There were times when Respondents testified, and Board members giggled and snickered. The Respondents were being humbled and were being as honest as they could be. It was pointed out, having a Board member snickering while the Respondent was pleading their case was unacceptable. The Board members are adults, human beings and they should show dignity and respect for their fellow citizens. 5 Meeting Minutes Code Compliance Workshop Boynton Beach, FL February 4. 2010 On a different note, Mr. Foot spoke of the minutes, which are voluminous and he reported it takes time to go through them. Mr. Foot reviews the cases he took action on. He encouraged all members to review the minutes. It was important minutes be correct. Any cases thought to be inaccurate should be submitted to staff and not to the Chair. It was noted there were not that many corrections to the minutes and the Clerk's office was complimented. 6. Code Officer/Property Owner Agreements This item was on the agenda because at the last meeting, when Mr. Blasie indicated he had spoken to a Respondent, an agreement was reached and the matter was resolved. Under those circumstances, Mr. Blasie did not have to advise the Board the matter was resolved; rather, the item should be deleted from the agenda. The case could be listed as removed, complied or tabled. Mr. Blasie explained the Code Officers do that all the time; however, the referenced case was brought forward because a Board Order was issued and Board action was needed due to reaching an agreement, regarding a time frame to correct the violations with the Respondent's attorney. In the past, the Board entered into stipulation agreements prior to the meetings, which were presented to the Board and the matter is addressed. That practice was discontinued, but in essence the same occurred with the Code Offficers through a verbal stipulation agreement. A Code Officer recommends a set amount of time to comply to the Board because, oftentimes, the Officer has discussed it with the violator in the field, and the time to cure the violation was acknowledged and agreed on between the parties. If the Board made a different decision, the repoire with the Officers and the Respondents is diminished. The importance of being consistent and fair with similar cases was also noted. Staff felt the Board should listen to the recommendation because the Officer knows how much more work is needed for the case to comply. One case in particular was referenced involving Office Depot. Officer Lewis entered into a written agreement with them to comply within a set time and the Board ruled contrary. The Respondent was working toward compliance and there was a great deal to be done to comply. When the Board ruled differently, the repoire rapport between the Respondent and the Officer was broken even though they had a written agreement and Board Order. It makes it more difficult for the Officers if they have to approach the Respondent in the future on a different violation. It was suggested the Officer advise the Board whether an agreement was reached between the Officer and the Respondent. The Board could accept it or reject it, but at least they would be aware. Although staff recommendations may seem inappropriate, there are often circumstances known to the Officer which predicate their recommendation. 6 Meeting Minutes Code Compliance Workshop Boynton Beach, FL February 4. 2010 In the past, the Board had Respondents appear on a regular basis to apprise the Board of their progress, and often they would give additional time. On the down side, if the case is not be brought to the Board because of agreements between the Respondents and the Officers, should several Respondents fail too uphold the agreement, it could result in the Board receiving a deluge of cases. 7. Sunshine Law/Public Records Attorney Bridgeman had distributed a handout for the members to read at their convenience. Questions should be sent to Lynn Swanson via email, who will forward them to the Attorney to answer. Attorney Bridgeman reviewed the requirements which were the meeting had to be noticed, opened to the public, in an accessible location and minutes must be taken. Members cannot communicate with one another about any issue that could possibly come before the Board. If a matter was resolved, the matter should still not be discussed amongst the Board members because it could come back to the Board. The Board members can speak to staff about the issue. If staff sends out emails to Board members, the members should not respond to the email via “Reply to All.” As to the length of the meetings, the Board can limit the amount of public participation and testimony heard. Only the Respondent had the right to speak. It was recommended the Board issue a rule at the beginning of the meeting about limiting public input. Individuals who are not Respondents do not have the right to speak at the meeting. By establishing a rule limiting or barring comments from non-respondents, the meetings could proceed expeditiously. Extraneous comments from the Respondents could also be limited; however, the Respondent cannot be limited in the ability to present their case. Willful violations of the Sunshine Law result in receiving a second degree misdemeanor offense and/or a $500 fine and/or 60 days in jail. Consensus building must be audible via use of the microphone system. Comments made without using the microphone are a blatant violation of the Sunshine Law. No sidebar conversations should occur during the meeting unless they are on record using the microphone. Members should exercise restraint regarding their personal comments and/or opinions. The meetings must be held in an orderly fashion. Should there become a hostile situation, the individual can be expelled. Notes created by the Board members at the meetings that are connected to their decision making are public records. These records must be retained and should be turned over to the Clerk’s office to make a copy. The members were urged to use caution when formalizing their thought processes. Tabulating a vote, or writing a compliance date was not formalizing their knowledge. Writing down the same thing that was recorded was not really an issue; rather, the records were directed more towards 7 Meeting Minutes Code Compliance Workshop Boynton Beach, FL February 4. 2010 members writing down facts they used to help make a conclusion that had to be kept. The members write down the same information as the Clerk takes. Attorney Bridgeman would research the issue further and email her findings to Ms. Springer. Attorney Bridgeman inquired if the recording was the best evidence as to what was said. The members indicated sometimes there would be dialogue that was inaudible. Attorney Bridgeman indicated now that the members know they must speak into the microphone that should alleviate the matter. 8. Statutes/Ordinances There was brief discussion that when the Board enforces new Ordinances or amends one, that they should receive the information ahead of time. The Board enforces the new Foreclosure Ordinance and the False Alarm Fines. The members expressed they needed time to read the Ordinance so they could act appropriately. Mr. Blasie assured the members they would receive the information ahead of time. 9. Streamline/Improve Code Board Consensus building on the Board was allowable. Legal counsel; however, expressed a motion should be made and seconded and then the item be discussed. During discussion, the members could ascertain how the other members felt. It was noted this issue surfaced more frequently when hearing lien reductions. Additionally, the workshops were helpful. Mr. LaTour suggested holding quarterly workshops. Attorney Bridgeman noted a workshop was not necessary; rather, the issue could be an agenda item. Additionally, the members could email the questions to the Attorney to address them at the end of each meeting. The agenda item contains “Other Business” which could address the questions. 10. Senior Code Officers Conducting Meeting/Roll Call There was discussion regarding reading the roll call to determine who was present. Oftentimes the order of the names are reversed. The Officer is supposed to read the names off the agenda and the names are listed on the agenda in the proper order. The pronunciation was an issue. Meeting attendees should have the opportunity to read the agenda. The only other alternative would be to read the page and case numbers, and then the audience would be responsible for ascertaining their case number. It appeared the best way was the roll call and they would work on improving the pronunciation. Additionally, after roll call is taken, the Respondents frequently meet with the Code Officer in the back of Chambers. It was noted it was very distracting and sometimes the Board had to wait for the Code Officer to finish his conversation with the Respondent. One suggestion was if the Officer left chambers and met in the lobby, if the lobby microphones were on and someone was called, they could return to Chambers. The 8 Meeting Minutes Code Compliance Workshop Boynton Beach, FL February 4. 2010 Board could also take a five-minute recess to allow matters to be finalized for the meeting. Mr. Blasie agreed to try to supervise those discussions 11. Review on Reading Case Information Ms. Springer reviewed how to read the backup materials which provided the history of the case. Items such as the date, narrative, and complaint information were reviewed. The most important items to review were the date of initiation and the narrative. She cautioned not to look at the fine amount because the module was broken and the amount could not be removed. The fine amount pertained to older lien cases. 12. Repeat Offenders Ms. Springer explained one asterisk would be used to identify repeat offenders. Parenthesis would be used if the Respondent was in foreclosure and the property was not vacant. If the property was vacant, they would use the foreclosure code and a bank name would be listed. If the foreclosure process started and the property was occupied, the property owner’s name and the foreclosing attorney’s name would be in parenthesis. This could change, and if so, staff would advise the members. There was discussion about banks being repeat offenders. Mr. Blasie explained by statute, a repeat offender was the same owner even if violations occurred on multiple properties. The statute had been amended years ago to address slum landlord issues. Mr. Blasie did not feel it was it was entirely applicable in the case of banks foreclosing on properties as it was not a slumlord item; rather they were just trying to stay on top of their inventory. He did not feel it was the statutes intent to hold them as repeat violators. When staff notices the bank, they are noticed when the lis pendens is filed and they are required to register with the City and maintain the property. An Ordinance was adopted last year that holds the mortgage holder responsible, and they are cited as first time violators because they only acquired the property. The violation attaches to the property and the fine attaches to the property owner at the time the violation is incurred. When the property switches to a new owner, the notice goes to the new owner. If the staff were noticing the bank prior to the lis pendens or the foreclosure being finalized, that was different. Staff explained once the lis pendens was filed, they notice the bank. Each property has a separate case, even though they are owned by a bank. When a violation occurs on the same property a second time, then they are considered a repeat violator. Per direction of the Board, the banks would not be treated as repeat violators and the asterisk will be removed from the agenda. 13. Lien Reduction This item was previously discussed. 9 Meeting Minutes Code Compliance Workshop Boynton Beach, FL February 4. 2010 14. Fines It was noted the Board wrestles with the fine amounts. Staff felt the Board veered from the initial premise of the gravity of the violation, the efforts made to comply and the history of the violator, as it pertained to imposing a fine. Often this becomes a numbers game, when staff views it that a lien was imposed because compliance was not achieved within a certain time frame and now there is a large fine. The Board was basing the decision on how high the fine was, not the violation. If the members adhered to the parameters of the statute when they levied the initial fine, the Board's job would be much easier at lien reduction. The Board could impose lesser fines for lesser violations unless the case involved a repeat violator. The members could not predetermine a set amount; rather the Board was a finder of fact, based on the presentation made at the time. 15. Adjournment. There being no further business to discuss, Mr. Yerzy moved to adjourn. Mr. LaTour seconded the motion that unanimously passed. The meeting adjourned at 8:48 p.m. (!jJ:ti.ljLU~ ~ j 0 JAj J Catherine Cherry "-/'~- v . (J Recording Secretary 020810 10