HomeMy WebLinkAboutMinutes CESM 020700CITY OF PALM BEACH GARDENS
CODE ENFORCEMENT BOARD
FEBRUARY 7, 2000
The February 7, 2000 City of Palm Beach Gardens Code Enforcement Board was called to
order at 7:00 P.M. in the Council Chambers of the Municipal Complex located at 10500
North Military Trail, Palm Beach Gardens, Florida; and opened with the Pledge of
Allegiance to the Flag.
The roll was called by the secretary and the following appointed members were found to be
in attendance: Kevin Wagner, Lynn Waxman, Neil Lewis, Ernest Volante, John Little, and
Pete Miskovich. Also in attendance were Code Enforcement Administrator Paul Friedman,
City Attorney Lee Rosenthal; and Code Enforcement Officer Daniel McDade.
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Neil Lewis made a motion to accept the minutes of the October 4, 1999 meeting as
submitted. Motion was seconded by Lynn Waxman and carried by unanimous vote.
Pete Miskovich made a motion to accept the minutes of the December 6, 1999 meeting as
submitted. Motion was seconded by Neil Lewis and carried by unanimous vote.
SWEARING IN
City Attorney Lee Rosenthal swore in all those intending to speak during the upcoming
procedure.
ADMINISTRATIVE ANNOUNCEMENTS
Code Enforcement Administrator Paul Friedman announced that a workshop meeting would
be held and he would call the members of the Board with the date. It was agreed that a
Tuesday night was best.
Code Enforcement Board Meeting Minutes
February 7, 2000
Page 2
VIOLATION CASES
Case No. 99 -488
99-489
99 -490
99 -491
Respondent(s)/Defendant(s)
Property Owner:
Jack DeMarco
9112 Alternate AlA, Suite 101
Lake Park, FL 33403
Code Section: 118 -246 Chart of permitted and conditional uses.
Attorney Andrew Pineiro presented the case, announced that Case No. 99 -488 represented
property located at 385 GardenBoulevardzonedRL -3, and Cases No. 99-489,99-490, and
99 -491 were properties located on Holly Drive zoned RM. The zoning and notice were
stipulated by the attorney for Freedom House. Copies of the chart of permitted and
conditional uses were distributed. Mr. Pineiro explained that Freedom House was a halfway
house for recovering drug and alcohol addicts and had been in existence since 1990. Mr.
Pineiro submitted into evidence as the City's Exhibit #1 a pamphlet advertising Freedom
House, explained that previous City staff members had authorized repairs over the years;
however, Florida law did not hold the City responsible for unauthorized actions of
predecessors. Attorney Pineiro explained that repairs had been made for the health, welfare,
and safety of the residents of the home and the residents of the City, and requested that
police reports be entered into evidence as City's Exhibit No. 2. Opposing Counsel Joslin
objected to the exhibit of police reports, stating that health, welfare and safety was not the
violation cited, but that he would stipulate that there were police reports. Following
discussion of the appropriateness of the police reports, a poll of the Board indicated they did
not wish to consider the police reports at this time. Attorney Pineiro presented argument that
Freedom House was a commercial business for profit, and that a former City Manager, Mr.
Orr, had mistakenly allowed this use in a residential zone. Attorney Brian Joslin rebutted
statements made by Attorney Pineiro and moved to enter an exhibit book into evidence. The
relevance of the exhibits in the evidence book was questioned; therefore, the exhibits were
discussed individually. Attorney Joslin described the activities of the residents of Freedom
House, and explained that the housing was used for lodging and that other activities of the
Freedom House program were conducted off - premises. Attorney Joslin represented that the
properties owned by Mr. DeMarco were no different than any other rentals within the City;
Code Enforcement Board Meeting Minutes
February 7, 2000
Page 3
explained that the residents were not sent there as a condition of probation, and that Freedom
House received no state funds. Composite Exhibit One was admitted into evidence.
Attorney Joslin referred to the notice of violation and the actions listed to effect a cure of the
problem: cease use of the property for commercial purposes, cease operating a commercial
establishment in a residential district, or seek rezoning of the property to the appropriate
zoning district. Attorney Joslin argued that at the beginning when original approval was
granted that a distinction was made between renting rooms to men in recovery and operating
a commercial business on -site, and that their renting rooms was no different than any other
rentals. Attorney Joslin described improvements made by the owner in 1997 for which the
workman did not obtain a permit, resulting in a code enforcement citation for lack of permit
and no occupational license, with which the owner had complied. Occupational licenses
were discussed Attorney Joslin moved to place exhibits 2 (Memo to Linda. Kosier from
W.E. `Bill" Beville), 3 (Code Enforcement Division Notices of Violation), and 4
(Application for Occupational License) into evidence, which Attorney Pineiro objected were
irrelevant. A poll of the Board agreed that these exhibits were irrelevant except for the
notice of violation. Exhibit 6, (Palm Beach Gardens Fire Department Fire Safety Inspection
Reports for various addresses) was discussed, and the City Attorney advised that evidence
should be admitted whether or not it was considered irrelevant; however, a poll of the Board
indicated 4 against admitting Exhibit 6 , and 3 in favor. A member of the Board expressed
his opinion that this operation was similar to a rooming house where more people were
allowed to live in a dwelling. Attorney Joslin argued that all his client was doing was renting
rooms and other people who rented rooms were not required to add fire alarms as his client
had been required to do, and stated that the fact that Mr. DeMarco had installed the alarms
relying on the City in order to keep going constituted an estoppel. Renting to family
members as opposed to unrelated persons and collecting rent on a weekly basis was
discussed Attorney Joslin moved that Tab 8 (City of Palm Beach Gardens Application for
Occupational License) be entered into evidence, which the Board accepted Attorney Joslin
discussed Tab 15 (Memo to Bobbie Herakovich, City Manager, from Beth Ingold -Love,
Public Information Officer). The City attorney objected to the relevance of the document,
stating Attorney Joslin had said police reports had no involvement; however the City
response team was made up of all departments, including Police. The Chairman indicated
the issue of whether this establishment was commercial did not have a lot to do with whether
the police had been in the area and his general thought was that as long as there was nothing
particularly objectionable about a piece of evidence, it should be accepted, and Counsel
should be allowed to present his case, because the Board was trying to make a strong effort
to give everyone a sense of due process. The Chairman commented that he believed the City
had shown their position: that this was inconsistent with their position today, and that it was
not necessary to go through this step -by -step, and felt there was no reason to keep this
document out of evidence. The Board accepted Exhibit 15 into evidence. Tab 19 (Memo
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Code Enforcement Board Meeting Minutes
February 7, 2000
Page 4
to Bobbie Herakovich, City Manager, from Carole Wallace Post, City Attorney, dated
10/l/98), which gave an opinion that in order for the use to continue a text change to the
zoning was needed, which Attorney Joslin stated was required in 1992 and then Mr.
DeMarco was told a text change was not needed Attorney Joslin argued the fact that Carole
Post decided a test change was needed was not evidence that the original approval was a
mistake. Attorney Joslin commented there was nothing noted in support of her opinions.
The City attorney objected The Board accepted Exhibit 19 into evidence. Attorney Joslin
explained that Exhibit 23 (E -mail to Paul Friedman; Daniel McDade CC: Roxanne Manning,
Kim Glas, Bobbie Herakovich, dated 7/7/99 from City Attorney Carole Post) requesting a
standard inspection, had been found to be unnecessary when it was learned the Fire
Department had recently completed an inspection. Attorney Joslin commented that what was
contemplated was not a standard inspection if the City Attorney needed to be contacted. The
City attorney objected as not relevant. The Board entered Exhibit 23 into evidence. During
review of Exhibit 24 (memo from Roxanne Manning to City Manager Bobbie Herakovich
dated 7/12/99) by Attorney Joslin he indicated that Ms. Manning had stated she was unclear
about why proceeding with Freedom House need to be delayed and that she would get in
touch with City Attorney Post; and that same afternoon had written the cover letter
accompanying Notice of Violation ( Exhibit 25 - Cover letter from Roxanne Manning to
Jack DeMarco dated 7/12/99 accompanying Notice of Violation). Attorney Joslin
requested that Exhibits 24 and 25 be moved into evidence, as well as the balance of the book,
stating that the specific documents already mentioned were what was being relied upon;
however, stated that the other documents bear on this issue as well. Upon objection by the
City's attorney, the Chairman announced that admitting the rest of the book would be
delayed until the City's attorney could review the documents to determine whether any were
so inflammatory they might unduly sway the Board Attorney Joslin moved that the City's
current Code of Ordinances as well as the Code of Ordinances that existed through 1991 and
a Supplement updated by Ordinance 4 -1991. The City's attorney objected regarding
authenticity. The law was moved into evidence. Attorney Joslin quoted from the Code in
effect in 1992 and stated there was nothing about the operation of Freedom House duplexes
and single family homes that violated the intent of the Zoning District regulations that existed
in 1992. Attorney Joslin reported Mr. DeMarco had requested a text change amendment as
required in 1992, and was told by the City it was not necessary. Attorney Joslin commented
that the respondent had heard that the entire justification for this case had been that the
original approval was granted by mistake, but those involved in the original approval were
not present testifying they had made a mistake, and there was no proof presented that
conditions of the original approval had been violated Attorney Joslin stated the condition
of the original approval made a distinction between what the respondent was doing-renting
rooms -and operating a commercial enterprise; and that now the City was saying that doing
what they had been doing for eight years was a commercial enterprise, because a new City
Attorney decided that was what she needed to do, and that was not the way the law was
Code Enforcement Board Meeting Minutes
February 7, 2000
Page 5
supposed to work and that was not what the law should require in this case. Attorney Joslin
stated that Freedom House had been in operation and was within their rights to rent rooms
as they were renting them; that no one was selling anything on site or operating any kind of
a home business, and there was no evidence about why the City now believed -after
compliance with everything the City asked for the past eight years —that this was a
commercial use. Attorney Joslin stated that the Fair Housing Act prohibited interference
with people who wanted to rent rooms, their homes, or a duplex, to people who were
recovering drug or alcohol addicts. Attorney Joslin asked consideration of the case of Fox
vs. Town of Bay Harbor Islands 3rd District Court Case, 1984, in which the 3rd District
Court had been faced with a zoning regulation that prohibited certain types of people from
renting certain types of apartments, and the Court had said particularly pertinent here is the
fact that zoning ordinances are much less suspect when they focus on a use than when they
command inquiry into who the users are; and Attorney Joslin commented there had been no
contradicting testimony or evidence regarding use in the City's case. Attorney Joslin stated
that in the absence of any evidence of mistake or violation of the original conditions of
approval, the Board should not continue the notice of violation and permit their actions to
continue. Discussion ensued during which Chairman Wagner questioned whether there was
law that once someone relied on a decision made by the City that the City could not
reinterpret it, to which Attorney Joslin replied affirmatively, that it was called reasonable
estoppel. Counsel commented that if the City took an action that was a mistake under their
code they could revoke later, but if what was done initially was valid or there was no
evidence of a mistake the City could not change their mind later. Maximum number of
residents for Freedom House was stated as 34 for their 3 duplexes and the Garden Boulevard
house. Clarification as to why Freedom House was considered commercial if they were just
renting out rooms was requested Response was that this was where the people's lives were
administered with structured meal times, activities, etc., and this was a component of a
business enterprise. Group homes were discussed and it was stated they were allowed and
if all components of Section 419 were complied with this could be a group home. Section
118.300 was discussed, and an opinion was given that the Planning and Zoning Commission
could interpret and make recommendations, and the City Council could approve or deny.
Code Enforcement Director Friedman explained that this use was not one of the things that
could be administratively approved by the Planning and Zoning Commission. Attorney
Pineiro acknowledged the law was wrongfully applied in 1992 and Mr. Orr had no decision-
making power since the City Council was the body which made decisions and ordinances.
Attorney Pineiro stated as to preponderance of the evidence, if the Board found 51% of the
evidence showed commercial activity, that was enough for the Board to find the respondent
was acting contrary to the code and contrary to the chart of permitted uses. Attorney Pineiro
stated the case law clearly showed estoppel could not be asserted against a government entity
based on mistaken statements of law. Attorney Pineiro commented opposing counsel had
stated the City was looking to keep people out, which was exactly what was not being done,
Code Enforcement Board Meeting Minutes
February 7, 2000
Page 6
and this issue was strictly commercial use versus residential use, and there were other areas
within the City where this activity was allowed, and the respondent had constructive
knowledge of applicable land use regulations. Attorney Pineiro explained that opposing
Counsel had stated there was no evidence before the Board of a commercial enterprise, and
he disagreed since he believed the whole packet showed that there was commercial
enterprise. Attorney Pineiro moved that the police reports be submitted into evidence, and
discussion ensued; however, the Board voted 4 -2 not to submit the reports. Attorney Pineiro
summed up his previous comments. Overcrowding, maximum number of people who could
live under one roof and whether the City had adopted a code regarding whether the people
were related or non - related was discussed Chairman Wagner requested testimony from
Jack DeMarco regarding house activity. Mr. DeMarco testified the house activity was
volleyball and on a typical day 99% of the residents went to work and on their day off they
played volleyball or went down the street to play basketball. Mr. DeMarco responded to
Chairman Wagner's question regarding whether someone from the organization was there
to monitor what went on in the house by explaining that there was not, but that the person
who had been in recovery longest called him if there was an emergency. Mr. DeMarco
reported curfew and other items listed were self enforced, and no staff was on premises, but
the person who had been in recovery longest received a reduction in his rent. Attorney
Pineiro reported from minutes of a 1992 Planning and Zoning meeting that Mr. Schwab had
stated there would be a staff member on site, which Mr. DeMarco stated that had been
planned in the beginning but that had never happened Attorney Pmeiro questioned who
enforced the rules, to which Mr. DeMarco responded he and his nephew occasionally visited
the house and the rules were conducted from the office through a Friday night meeting.
Attorney Pineiro questioned why a weekend pass was needed, which Mr. DeMarco
explained that was something earned through doing well in recovery. Attorney Pmeiro
questioned whether this was part of a recovery program to which Mr. DeMarco responded
affirmatively. Mr. DeMarco answered questions from members of the Board regarding
meetings and explained no meetings were held at the house. Attorney Joslin discussed items
decided upon in 1992, and indicated that operations were the same as they were then, stated
the respondent should be able to continue to operate and that the violation should be rejected
Attorney Pineiro commented what happened in 1992 was irrelevant and what was relevant
was that the respondent had been cited for being a commercial entity in a residential area,
and this was a part of the business. Attorney Joshn responded this was connected to
something that occurred off site but the violation was for what was going on in this property,
and no business was going on there. Mr. Lewis commented he had a tenant who mowed the
yard and received a reduction in rent and who called him is anything was wrong, and from
the standpoint of being a landlord he saw no difference or commercial activity going on
Chairman Wagner discussed the estoppel issue and that the law said the City could change
its mind if it did something that was wrong, so the only question for the Board to decide was
whether this was a commercial establishment or not, and if it was they were in violation and
Code Enforcement Board Meeting Minutes
February 7, 2000
Page 7
if it was not there was no violation Another member of the Board commented he would like
to hear testimony from former residents regarding what went on there. Board member Lynn
Waxman questioned whether there was a definition in the Florida statutes of a commercial
enterprise, to which the response was that it was unknown whether there was a definition
given Attorney Rosenthal pointed out that under the ordinance the issue was not whether
a commercial enterprise existed there but whether there was commercial activity, and staff
and counsel had presented evidence to convince the Board that a commercial enterprise
existed; however, he had not heard evidence whether these were commercial activities.
Attorney Rosenthal stated the Board must determine whether the City staff had proved to
them more likely than not there was a commercial activity because that was an element of
the offense; and next, if they had done that to the Board's satisfaction, whether the Planning
and Zoning Commission had had the right to determine operation was similar to a regular
apartment, and if in the Board's opinion they had the right, that would distinguish this case
from the cases cited regarding lack of power of a city to estop. Discussion ensued The
Board requested the staffs recommendation Director Friedman reviewed the terms for
compliance, stated staff was willing to work with respondent to come into compliance, and
that if the Board's decision hinged upon the definition of commercial enterprise that expert
witnesses from the Planning Department could be brought in to testify as to the definition.
Attorney Joslin objected to this case being delayed further. The Board discussed the case
further. A member of the Board commented Freedom House had been referred to in early
documents as an ALF, which was a very hot topic in many cities, and stated from experience
as a landlord what landlords were allowed to do, and expressed his opinion that this was a
commercial entity. Another Board member disagreed Further discussion included opinions
that the City did not present enough evidence to show commercial activity although Board
members believed it was a commercial entity. Deferral of the case to obtain further
testimony was discussed
Neil Lewis made a motion to find respondent in Case No. 99 -488, 99 -489, 99 -490 and 99-
491 not in violation of acting as a commercial entity or commercial activities going on at the
locations of 385 Gardens Boulevard, 584 Holly, 588 Holly Drive, and 592 Holly Drive.
John Little suggested an addition to the motion that any further activity or new evidence
arises that staff could bring this back to the Board The maker of the motion stated he would
stay with his original motion Motion died for lack of a second-
Kevin Wagner suggested rephrasing to find there was no evidence that respondent was
currently operating as a commercial entity. Deferment was suggested and discussed
John Little made a motion that in Case No. 99 -488, 99 -489, 99 -490 and 99 -491 that
Respondent, Mr. Jack DeMarco, be found not in violation of acting as a commercial entity
at these locations: 385 Gardens Boulevard, 584 Holly, 588 Holly Drive, and 592 Holly
Code Enforcement Board Meeting Minutes
February 7, 2000
Page 8
Drive because of a lack of evidence thereof. Counsel advised the motion might be reworded
to dismiss this case because of lack of evidence. Discussion ensued A comment was made
that the same case could not be presented again but if the City found out different facts it
could be re- presented
MOTION
Kevin Wagner passed the gavel to Neil Lewis and made a motion to dismiss this case for
lack of evidence. John Little seconded the motion. Motion carried 4 -2.
ADJOURNMENT
There being no further business to discuss, motion was made and seconded to adjourn and
carried by unanimous vote.
s
Code Enforcement Board Meeting Minutes
February 7, 2000
Page 9
CODE ENFORCEMENT BOARD MINUTES APPROVAL
DATE:
Kevin Wagner
Pete Miskovich
Neil Lewis
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