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Minutes 02-03-11 MINUTES OF THE BUILDING BOARD OF ADJUSTMENTS AND APPEALS MEETING HELD ON THURSDAY, FEBRUARY 3,2010 AT 6:30 P.M. IN CITY COMMISSION CHAMBERS, BOYNTON BEACH, FLORIDA PRESENT: Michael Bessell, Chair Andrew Mack, Interim Chief Building Inspector Boyd Boggess (arrived 6:45 pm) David Tolces, Assistant City Attorney Sanford Guritzky Maxime Ducoste-Amadee, Zoning & Business Tax Manager Richard Kurtz Tim Rurey Richard Shores, Alternate ABSENT: Beverly Agee Richard Darby A. Call to Order The meeting was called to order at 6:30 p.m. B. Acknowledgement of Members and Visitors The Recording Secretary called the roll. A quorum was present. The applicants, Mohammad G. Chawdhury and Mohammed M. Rahman were present. C. Approval of Agenda & Minutes (Minutes of March 18, 2010 Meeting) Motion Mr. Guritzky moved to approve the minutes as presented. Mr. Rurey seconded the motion that unanimously passed. D. Old Business None. E. New Business Applicant: First Stop Foods Reference: Letter of Appeal Explanation: The applicant is appealing the revocation of their Business Tax Receipt pursuant to Section 13-18(d) of the Boynton Beach Code of 1 Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL February 3, 2011 Ordinances. The revocation of the Business Tax Receipt is due to the failure to comply to City Codes as determined by Chapter 13, Section 13-18 and specifically with multiple counts of public assistance fraud as documented in Boynton Beach Police Department Incident Report 10022409 dated May 12, 2010. Chair Bessell explained the appeal is of the Business Tax Revocation and the City would present first. Attorney Tolces administered the oath to all those intending to testify. Sergeant John Bonafaire, Boynton Beach Police Department, is in charge of the Community Action Team (CAT), which is part of the community response unit for the City. Sergeant Bonafair reviewed a short presentation about the case. The case was not a typical criminal activity. Last year, the department received intelligence about public assistance fraud at local convenience stores. His team, and the Community Redevelopment Agency Unit organized a sting operation with Florida Department of Law Enforcement and the Palm Beach County State Attorney's Office. The Task Force used informants and undercover officers in an attempt to solicit alcohol, cigarettes and cash with fictitious Electronic Benefit Transfer (EBT) cards. The EBT program was formerly known as the Food Stamp Program. It is a benefit security card the client uses to purchase food from local stores. Unless specifically detailed, the benefits are for food only; not alcohol, cigarettes or cash. There are a few examples where individuals with disabilities can receive cash but only in an A TM-type atmosphere, and it did not apply to the cases to be heard. The way the program works is the client is issued an EBT card. They sign up on line and receive a pin number. The client goes to the authorized store to purchase food, and presents and renders the EBT card. At the end of the transaction, the client enters a PIN number, the same way a debit card is used. The individuals eligible for benefits are given a timeline for the benefits and the benefits are deposited into the account on a schedule. Each month, a new deposit is made. There are several ways to commit fraud. The most common way is the customer and clerk come to an agreement for the sale of the unauthorized items or illegal receipt of cash. If a client asks to buy tobacco, beer or obtain cash, the clerk would authorize the transaction and receive a certain percentage. As an example, if the client asks for $30, the clerk would indicate they want 50% and would type in an odd amount over $60 so the store would get the 50%. Usually the clerk knows an even amount would create a 2 Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL February 3, 2011 red flag on the USDA Exception Report or Florida Department of Law Enforcement, so they add odd change to make the transaction look legitimate. As a result, the Police Department went to every convenience store within the City and conducted an integrity test with confidential informants, and they identified five stores. During three months, they conducted 84 undercover buys at those locations. They had the informant wired for video when the transaction occurred, and they were monitored outside. They would then do the paperwork, collect the money or items and then continue with the investigation as the months progressed. The Police Department executed five search warrants and arrested 10 individuals responsible for committing fraud. Sergeant. Bonafaire stressed the transaction has to take place with the knowledge of the owner. The employee cannot take money from the register because the money is sent to a third party intermediary, JP Morgan Chase that re-credits the store for the transaction. The credit goes to the store account and it was the Police Department's experience the transactions go into the account. There was no excuse to say the owner did not have knowledge, because an individual clerk could not do the transaction or pocket the cash. Twenty-one undercover buys took place at First Stop Food, resulting in both owners being arrested for public assistance fraud. Sergeant Joe DeGiulio of the Boynton Beach Police Department Community Redevelopment Agency Unit, the lead in the case, testified his unit led the investigation at First Stop Food. Each time they were present to do a buy, there was no one else present and the transaction was made with one of the two. Rafiqul Chowdhury and Kamal Ahmed, the employee who was also arrested were only two individuals present behind the counter when they did business. Each transaction was conducted at 50 cents on the dollar plus beer and cigarettes. As an example, a typical transaction was a six-pack of Corona, a pack of Newport and $50 in cash. The amount charged to the EBT card to the State was $112. The merchant doubled the cost of the beer and cigarettes and cash. Maxime Ducoste-Amadee, Zoning & Business Tax Manager, after receiving communication from Sgt. Bonafaire, explained Chapter 13 of the License Code allows the City to revoke Business Tax Receipts when they are in violation of City Codes. That is why the Business Tax Receipt was revoked. The purpose of the hearing was to allow the business owner to have the opportunity to appeal the determination. The Police Department testified which exemplified the action. Attorney Tolces clarified for the record there were two different appeals and this appeal was related to First Stop Foods. Mr. DeCoste confirmed it was. 3 Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL February 3, 2011 Mohammed Chawdhury, 4398 Lake (inaudible) West Palm Beach, had his business located at 2755 S. Federal Highway in Boynton Beach and confirmed he wrote the letter included in the Board's packet. He would like to appeal the revocation of the license. Chair Bessell explained the license is on hold pending the determination of the Board. Whatever needs to be stated should be presented as the Board will make a ruling on the case. If he had a defense, it should be stated, or they would uphold what the City has done. Mohammed Rahman wants to open a new business with a new business name. The people who were arrested and who worked for them were fired. They were both of the owners' sons who are no longer in the store. They want to continue and open the business with a new ownership. They testified what Raiquil Chawdhury did wrong and he did not inform them of his actions. After they arrested him and they heard the news on the TV and from the Police Department, they understood what the sons did wrong. They are having problems from the Code and they want to continue the business. In south Boynton Beach there is only one store open. Many community residents were asking them to keep the business open. He appealed and requested the Board members let the business continue and those individuals will not be in the business. They want the Board to allow them to have a new owner and in the future want to do community service and have an honest business. Mr. Guritzky inquired if the two individuals appearing were the individuals arrested. Sergeant DeGiulio responded they were not arrested but they were part of the corporate structure at the time. One of the gentlemen appearing was the Vice President at the time and the other was the Secretary, so they were involved in the business. He commented that particular business was small and there was not a lot of food being sold. It was a beer, tobacco, and lottery ticket-type business. Chair Bessell commented on the fact that they did not know what the clerks or sons were doing but the corporation was making the profit. Sergeant DiGiulio confirmed the corporation made a profit. Mr. Chawdhury also confirmed it was correct but they did not track what they were selling. Mr. Chawdhury agreed they were responsible for the corporation but they were not active and were not around the business. Mr. Shores inquired beyond the promise they made if they were you putting anything in place to correct the action. Mr. Chawdhury commented they added food items such as chips and a deli section. They had a lottery machine but it was removed because of the problem. They have alcohol and items for the customers' convenience similar to what was in 7-11. They indicated they did not understand the complaint. Mr. Rurey inquired if granted, whether there would be a new license versus using the existing. 4 Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL February 3, 2011 Mr. Ducoste-Amadee responded currently the corporation of record is comprised of the individual who committed the fraud. These individuals were not part of the fraud scheme but were part of the corporation structure. The corporation was still liable for the scheme despite the fact they were not aware of the activities, Chair Bessell asked how difficult would it be for them to get a new Business Tax Receipt and open a business again. Mr. Ducoste-Amadee responded it could be as simple as establishing another corporation and applying for another Business Tax Receipt provided they meet all the regulations the City has at the time they make their application. It is not that difficult to do. Mr. Chawdhury pleaded to keep the business open. They have personal problems some times and if they lost the business he would not have a job. He tried to get a job but never found one. Neither individuals have a job. Each month they received $300 or $400 from the store, but they do not have a job. They want to open a business and operate it like a job. There was a Texaco station closed down to the south of Boynton and community residents asked them to stay and to ask the Board members to keep the business open. The applicants need it and the community needs it, and they promised to keep the business honest. Motion Mr. Guritzky moved the license not be renewed; to uphold the action of the City and deny the appeal. Mr. Shores seconded the motion. The Recording Secretary called the roll. The vote was 4-0. Chair Bessell explained the City's action was upheld by the Board. He commented they can do something different but they can not reopen the store without the license. Attorney Tolces explained the decision of the Board is final and only subject to review by Writ of Certiorari by Palm Beach County Circuit Court. They will receive a copy of the order. Once the Order is signed, is when the license would be revoked. Attorney Tolces requested Mr. Ducoste-Amadee's file include this matter in the record. Applicant: Marwan Inc., dba EZ Mart Reference: Letter of Appeal 5 Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL February 3, 2011 Explanation: The applicant is appealing the revocation of their Business Tax Receipt pursuant to Section 13-18(d} of the Boynton Beach Code of Ordinances. The revocation of the Business Tax Receipt is due to the failure to comply to City Codes as determined by Chapter 13, Section 13-18 and specifically with multiple counts of public assistance fraud as documented in Boynton Beach Police Department Incident Report 10027570 dated June 10, 2010. Maxime Ducoste-Amadee, Zoning and Business Tax Manager with the City of Boynton Beach, explained they received an email yesterday about postponing the case. Andrew Mack, Interim Building Official, received an email from the attorney representing Marwan Inc., dba EZ Mart, requesting the appeal item be continued. Mr. Mack advised him to either withdraw the application, attend the meeting and request a continuance, or send a written request for continuance. He announced none of the three suggestions were followed. No one from EZ Mart was in attendance. Attorney Tolces also announced the City Attorney's office was aware of the phone call made to postpone the matter and their instructions were to submit something in writing. It is the Board's discretion whether to hear it. Chair Bessell deferred to Mr. Ducoste-Amadee who felt the Board should hear the case. Sergeant John Bonafaire, Boynton Beach Police Department, explained this case was slightly different. They had 10 undercover buys from the store. They executed a search warrant and seized their video camera system along with hard drive and DVR. They analyzed the DVR and were able to determine initially 44 instances of fraud typically over $40 with individual customers. When he reanalyzed the video, Marwan Ghali, one of the principal owners wrote down 44 individual account numbers and memorized their PIN numbers and committed 44 counts of fraud by himself. He stopped counting at over 200 counts of cigarette sales and there were six incidents of illegal gambling when they were paying out on poker machines they had in the back of the store. The address of the establishment was 1005 N. Seacrest Boulevard, also known as EZ market. Mr. Ducoste-Amadee, explained it was the same scenario as before, with the City revoking the Business Tax Receipt under Chapter 13-18 (D). He submitted the Business Tax files into the record. There were no questions from the Board. Chair Bessell inquired if anyone wanted to offer any testimony in defense of the case at N. Seacrest. No one was present to come forward. 6 Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, FL February 3, 2011 Motion Mr. Guritzky moved to uphold the City's action to revoke the Business Tax Receipt and deny the appeal. Mr. Shores seconded the motion. The Recording Secretary called the roll. The vote was 4-0. F. Announcements None. Motion There being no further business to discuss, Mr. Guritzky moved to adjourn. Mr. Shores seconded the motion that unanimously passed. The meeting adjourned at 7:05 p.m. / i ...J ' ULi.-4 LL j"l Uv- U-j Catherine Cherry . Recording Secretary 020611 7 CITY OF BOYNTON BEACH BUILDING BOARD OF ADJUSTMENT AND APPEALS IN RE: APPEAL OF REVOCATION OF BUSINESS TAX RECEIPT FIRST STOP FOODS Applicant: Mohammad Chawdhury ORDER UPHOLDING DECISION OF INTERIM BUILDING OFFICIAL AND DENYING APPEAL The Appeal filed by Mohammad Chawdhury of First Stop Foods (hereinafter referred to as "Applicant") was heard by the City's Building Board of Adjustment and Appeals on February 3,2011. The Applicant was appealing Part II, Chapter 13, Section 13-18 of the City of Boynton Beach Code of Ordinances. The City's Building Board of Adjustment and Appeals (hereinafter referred to as the "Board") considered the testimony and evidence presented at the hearing and orders as follows: FINDINGS OF FACT 1. The Board makes the following preliminary findings: The Applicant is appealing the revocation of its Business Tax Receipt pursuant to Section 13-18( d) of the Boynton Beach Code of Ordinances. The Applicant was provided Notice of the hearing. CONCLUSION AND ORDER 1. After review of the record presented to the Board, including the recommendations and comments of the City's Zoning and Business Tax Manager, Sergeant DeGiulio of the City Police Department, testimony from the Applicant, and evidence, the Board hereby determines that the City staff correctly applied the applicable Code section which revoked the Applicant's Business Tax Receipt. 2. Pursuant to the authority of the Building Board of Adjustment & Appeals, the Board hereby denies the Applicant's appeal of the revocation of its Business Tax Receipt pursuant to Section 13-18( d) of the Boynton Beach Code of Ordinances. The revocation was the result of the Applicant's failure to comply with the applicable City Codes related to Business Tax Receipts, and specifically Applicant's commission of public assistance fraud as documented in Boynton Beach Police Department Incident Report 10022409 dated May 12,2010. 3. The pUQlic record, including, but not limited to, the Police Reports, Zoning & Business Tax Manager's file, reports, memoranda, comments, and recommendations on the appeal, agenda back-up before the Board, along with the record established before the Building Board of Adjustment on February 3, 2011, are hereby incorporated by reference. DONE AND ORDERED this / D day of ~, 2011 in the City of Boynton Beach, Florida. ~~/~L 1<1 AEL BESSELL, CHAIRMAN CITY OF BOYNTON BEACH BUILDING BOARD OF ADJUSTMENT AND APPEALS ATTEST: ( ET M. PRAINITO, MMC TY CLERK CITY OF BOYNTON BEACH BUILDING BOARD OF ADJUSTMENT AND APPEALS IN RE: APPEAL OF REVOCATION OF BUSINESS TAX RECEIPT EZ MART Applicant: Marwan, Inc., dba EZ Mart ORDER UPHOLDING DECISION OF INTERIM BUILDING OFFICIAL AND DENYING APPEAL The Appeal filed by Marwin, Inc., dba EZ Mart (hereinafter referred to as "Applicant") was heard by the City's Building Board of Adjustment and Appeals on February 3, 2011. The Applicant was appealing Part II, Chapter 13, Section 13-18 of the City of Boynton Beach Code of Ordinances. The City's Building Board of Adjustment and Appeals (hereinafter referred to as the "Board") considered the testimony and evidence presented at the hearing and orders as follows: FINDINGS OF FACT I. The Board makes the following preliminary findings: The Applicant is appealing the revocation of its Business Tax Receipt pursuant to Section 13-18( d) of the Boynton Beach Code of Ordinances. The Applicant was provided Notice of the hearing. CONCLUSION AND ORDER 1. After review of the record presented to the Board, including the recommendations and comments of the City's Zoning and Business Tax Manager, Sergeant Bonafair of the City Police Department, and evidence, the Board hereby determines that the City staff correctly applied the applicable Code section which revoked the Applicant's Business Tax Receipt. 2. Pursuant to the authority of the Building Board of Adjustment & Appeals, the Board hereby denies the Applicant's appeal of the revocation of its Business Tax Receipt pursuant to Section 13-18( d) of the Boynton Beach Code of Ordinances. The revocation was the result of the Applicant's failure to comply with the applicable City Codes related to Business Tax Receipts, and specifically Applicant's commission of public assistance fraud as documented in Boynton Beach Police Department Incident Report 10027570 dated June 10, 2010. 3. The public record, including, but not limited to, the Police Reports, Zoning & Business Tax Manager's file, reports, memoranda, comments, and recommendations on the appeal, agenda back-up before the Board, along with the record established before the Building Board of Adjustment on February 3, 2011, are hereby incorporated by reference. DONE AND ORDERED this 10 day of ~, 2011 in the City of Boynton Beach, Florida. ~.~ Ml ~ AEL B;S;~'LL, CHAIRMAN CITY OF BOYNTON BEACH BUILDING BOARD OF ADJUSTMENT AND APPEALS ATTEST: 'm.~ JA ET M. PRAINITO, MMC Y CLERK