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Minutes 06-02-11 MINUTES OF THE BUILDING BOARD OF ADJUSTMENTS AND APPEALS MEETING HELD ON THURSDAY, JUNE 2, 2011 AT 6:30 P.M. IN CITY COMMISSION CHAMBERS, CITY HALL, 100 E. BOYNTON BEACH BLVD., BOYNTON BEACH, FLORIDA PRESENT: Michael Bessell, Chair Andrew Mack, Interim Building Official Beverly Agee James Cherof, City Attorney Boyd S. Boggess Sanford Guritzky Timothy Rurey Richard Shores A.Call to Order The meeting was called to order at 6:32 p.m. B. Acknowledgement of Members and Visitors The Recording Secretary called the roll. A quorum was present. C. Approval of Agenda & Minutes March 10, 2011 and April 21, 2011 Meetings Motion Mr. Guritzky moved to accept both sets of minutes. Mr. Shores seconded the motion that unanimously passed. D. Old Business None. E. New Business Applicant: Victor Andres Sasson, Managing Member, Jason Mankoff, Applicant Representative Reference: CrossFit Boynton Beach LLC Explanation: Applicant is appealing Section 108.5 of the City of Boynton Beach Amendments to the 2007 Florida Building Code, Permit Penalty Fee Waiver and is 1 Meeting Minutes Building Board and Adjustment and Appeals Boynton Beach, FL June 2, 2011 requesting appeal of the denial of Permit Penalty Fee Waiver application of January 19, 2011. This request is to reduce to a reasonable amount the penalty fee of $9,413.67. Kark Swierzko , Chief Field Inspector, presented the case and explained on November 1, 2010 a permit application was submitted for an interior buildout for CrossFit at 975 Gateway Boulevard. On November 17, 2011, the Building Department issued a stop work order, contained in Exhibit B. The contractor of record, John Kay of Polo Construction, called Mr. Swierzko at approximately 4:21 p.m. and apologized. He assured Mr. Swierzko he stopped construction and that he had made a bad decision to start without the permit. He admitted the tenant was anxious for the work to begin prior to the permit approval and Mr. Kay agreed if he got caught, the business owner would be responsible for additional fees. On December 6, 2010, the building mechanical, electrical and plumbing permits were issued. On January 13, 2011, the project received the Certificate of Occupancy. On January 19, 2011, the penalty waiver was submitted by Mr. Kay. Mr. Swierzko met with him and Andrew Mack, the Interim Building Official, and Mr. Kay reiterated he made a bad decision, but the tenant wanted him to proceed with the waiver process. Mr. Swierzko referenced Exhibit E, Item H and commented that was not part of the document. It was hand written by the applicant. Mr. Mack advised Mr. Kay that he did not qualify for relief based on the information and the request was denied. Mr. Guritzky inquired how long it took from when the work started to when the permit was approved. Mr. Swierzko responded there were 19 business days between application and issuance of the permit. The photographs were taken on the 17th, two days prior to the permit being issued. Chair Bessell inquired why the Board was hearing the appeal if that was not one of the prerequisites for an appeal. Mr. Swierzko responded State Statute and City Ordinance required it. Chair Bessell inquired why the Board was only penalizing the general contractor and not the other trades that also started work without permits as per the pictures. He noted there was plumbing, electrical, mechanical and perhaps fire sprinkler work done. Mr. Swierzko responded the penalty wass for the work that commenced and the permit encompassed all the trades for the project. 2 Meeting Minutes Building Board and Adjustment and Appeals Boynton Beach, FL June 2, 2011 Brief discussion ensued if the plumbing contractor applied for a separate permit, there would have been a fee. The plumber would have been fined triple fees, the same as the contractor. Similarly, the same would have applied to the electrical and mechanical work, which was completed, but only the general contractor was being penalized, and he was not appealing the fine. The fine was paid by the tenant, and it was thought there was a question of standing, because the violation was from the contractor, but the tenant was asking for the waiver. Ms. Agee inquired how the penalty amount was determined. It was learned the penalty was set by City Ordinance and the Boynton Beach Administrative Amendments to the Building Code. It was the standard amount. She asked if the Board, in the past, had waived the violation fees. Mr. Swierzko responded, in his five years with the City, the Board had never waived an appeal of the Building Official’s decision. Chair Bessell questioned why the contractor did not pick up the phone and ask if he could start. He also had the breakdown of the costs and noted there was profit listed. He did not understand why the tenant was appealing the fine. Jason Mankoff , the applicant’s representative, 19071 Fox Landing Drive, Boca Raton, was administered the oath. Mr. Mankoff confirmed CrossFit was appealing because they paid the fine. The contractor was flagged and was told to proceed, pay the fee and get the permit. The tenant paid the fine so they could open by December and start marketing for the January rush. As to the waiver application, the contractor was recommended to the tenants because he was good. Not knowing about permits or construction, the tenant said do what you have to do to open. The application, under Item 3.F, specifies that the applicant is an individual who just recently relocated in Boynton and does not have knowledge of Building Code requirements. Mr. Mankoff asserted the owners are not builders. Mr. Mankoff reviewed a brochure he prepared which extolled the history and value of CrossFit. He expressed there is a bit of cache to have CrossFit, symbolizing health, working out and other good things, in Boynton Beach. The facility provides good publicity for the City. The tenants were seeking a refund or at a least partial refund because $10,000 is a lot of money. They have not spent much money on marketing because the fee was paid with the marketing money. Mr. Shores wished them success, but explained the Board’s job is to determine if there is a violation, if it was handled properly, and if the penalty was fair. He thought Mr. Mankoff was requesting the Board make a decision on a contract dispute. The contractor was not present opposing the fee and Mr. Shores felt that it was a small claims matter. Mr. Mankoff responded it was not and explained he sat on the Boca Board of Adjustments. He contended the tenant falls under Section F. He reiterated an individual 3 Meeting Minutes Building Board and Adjustment and Appeals Boynton Beach, FL June 2, 2011 could be defined as an entity that relocated to an area and possessed no knowledge of the Building requirements. They relied on the contractor. It was not a small claims matter because the tenant paid the fee. The tenant and contractor issue was not pertinent. Item F would never be applicable to a contractor and was to protect individuals and give them the opportunity to state their case. Ms. Agee was concerned about the two owners starting the business without knowing about permits. She inquired if they owned homes or lived anywhere in the world that did not require permits. She thought it was unimaginable they would have no knowledge. She did not know how they could start a business without recognizing they have a responsibility and thought the contractor must have told them about the need for permits. Mr. Mankoff contended 95% of the population does not know about permits. People purchase homes or have remodels done and just pay for them. They do not know about going to the municipality and filing for permits. Most business owners that are not in building construction or development trades are unaware of the requirement. Many of them are single-shop owners moving into a space or renovating and they do not know about these things until a problem arises. Mr. Boggess commented when the tenants signed the lease there is some kind of a term in it and/or documentation about acceptance of the space and an allowance is given for a buildout. There should be documents and then an understanding that permits would have been required. The tenant has to accept the space as is and would know full well there are requirements. Mr. Mankoff explained the site was in an existing shopping center and permits would be required for interior buildouts. The tenants hired a contractor to do that and most small business tenants do not read every page of a 20- page lease. He further asserted if it said it is the tenant’s responsibility to get the permits, they think it is the responsibility of the contractor to obtain them. Mr. Shores explained it is a dispute between the tenants and contractor not the Board. It should be remedied by those two parties. Mr. Mankoff respectfully disagreed because of Section F and commented he has been at other fee reductions. In Delray Beach, reductions are heard by the City Commission. Most municipalities have provisions to appeal and say this is what happened, fine us, but not the entire amount. Mr. Guritzky felt there were contradictions. When he read the documents, the tenants, who may not be business savvy, said to the contractor we want to get going, and if it is before the permits are issued, we will handle it. He asserted they were aware of it. Ms. Agee agreed and expressed Mr. Mankoff had not provided proof that they recently relocated and did not know the area, Building Codes and had no knowledge of them. Chair Bessell noted the applicant was aware of it when they hired the contractor and they relied on the contractor. They knew enough to hire a contractor. He asked Mr. 4 Meeting Minutes Building Board and Adjustment and Appeals Boynton Beach, FL June 2, 2011 Swierzko if a formal complaint was filed against Mr. Kay of Polo Construction, what the strictest penalty as a State license holder was. Mr. Swierzko responded it depended on any previous violations, which are public record. He thought there was a strict penalty, maybe around $1,000. Chair Bessell thought Mr. Kay, the contractor, should assume some of this responsibility because the owners did hire him and further commented the Board members were in agreement that something was not quite right. The work was done between the tenant and contractor. The contractor was responsible. That was why he wanted to know why all the subcontractors were not fined. They all did work without a permit. Mr. Swierzko commented the penalty fees assessed were a result of the contractor's negligence, not the tenants. By Ordinance, the penalty goes against the contractor and the contractor previously made the request, which was denied. Mr. Rurey pointed out the tenant had the option of not paying the final retainage, or payment, until those issues were resolved. Mr. Guritzky commented the issue was not a Board issue. Chair Bessell asked for a motion to approve or disapprove the appeal. Motion Mr. Rurey moved the Board not approve the appeal and the fine stand as stated. Mr. Shores seconded the motion. The Recording Secretary called the roll. The motion unanimously passed. Chair Bessell clarified the vote was to deny the appeal. F. Announcements None. Adjournment There being no further business to discuss, the meeting was properly adjourned at 7:10 p.m. (liule)LVltL G!w-LJ- Catherine Cherry Recording Secretary 060611 5