February 3, 2010

This material was filed under
[ Code Enforcement Board - Meeting Minutes ]
February 3, 2010

TOWN OF INDIALANTIC
Brevard County, Florida 32903
CODE ENFORCEMENT BOARD MEETING
February 3, 2010 Town Hall 6:00 p.m.
MINUTES NO. 10-02

PRESENT ABSENT
Ronald David Frye, Chairperson Ronald Campbell, Member Orlando Brillante, Vice Chairperson Todd Harrison, Member
Henry Adams, Member Tony Laginess, Member
Bill Heiss, Member
Joseph G. Colombo, Sr., Prosecuting Attorney
Paul Gougelman, Town Attorney
Clifford Stokes, Code Enforcement Officer & Building Official
Jennifer M. Fortin, Secretary

1. CALL TO ORDER 6:00 P.M.

Chairperson Frye called the meeting to order at 6:00 p.m.

2. ROLL CALL
The secretary called the role.

3. OATH OF OFFICE

A. Bill Heiss, First Alternate
B. Tony Laginess, Second Alternate

Attorney Gougelman administered the oath of office to Mr. Heiss. Mr. Laginess was not present.

4. APPROVAL OF MINUTES

Minutes 10-01, October 7, 2009
Mr. Brillante moved to approve the minutes of October 7, 2009. Mr. Adams seconded. Motion carried unanimously.

5. OPENING STATEMENT

Chairperson Frye read the opening statement.

6. VIOLATION HEARINGS

A. C.E.B. Case Number 10-004 CNL APF Partners LP (Property Owner)
PO Box 1671
Orlando, Florida 32802
And
Wendy’s Old Fashioned Hamburgers (Business)
205 South Miramar Avenue
Indialantic, Florida 32903

Town Code Section- 5.5-63 General Maintenance

Attorney Colombo advised that CNL APF Partners, LP and Wendy’s Old Fashioned Hamburgers are currently working with the Town to resolve the issue and recommended that Case 10-004 be tabled until the next regular Code Board meeting.

The Board agreed to table this case until the next meeting.

B. C.E.B. Case Number 10-005 Indialantic One Condominium Homeowners Association
601 North Miramar Avenue
Indialantic, Florida 32903
And
Space Coast Property Management (Dan Agent)
645 Classic Court #104
Melbourne, Florida 32940

Town Code Section- 5.5-68(d) Landscaping
Town Code Section- 17-129(h) Site Plan Approval

Attorney Colombo advised that Case Number 10-005 has complied and that no evidence or testimony would be presented.

C. C.E.B. Case Number 10-006 Spectrum Surf Shop of Brevard, Inc.
130 Fifth Avenue
Indialantic, Florida 32903
Attn: Craig Bobbitt
Violation One:
Town Code Section- 17-129(4) Site Plan Approval
Violation Two:
Florida State Statute- 489.103
Violation Three:
Town Code Section- 17-107 Industries Prohibited
Town Code Section- 17-126(2)(a) “C” and “C-1” Commercial Districts
Violation Four:
Town Code Section- 17-126(3)(r) “C” and “C-1” Commercial Districts
Town Code Section- 17-162 Discontinuance

Attorney Gougelman swore in Mr. Stokes and Attorney Colombo qualified him as an expert in code enforcement and building inspection. For the record, the Board recognizes Mr. Stokes as an expert in code enforcement and building inspection.

Violation One:
Attorney Colombo elicited testimony from Mr. Stokes. Mr. Stokes testified that a balcony had been constructed with no permits or site plan approval as required by Sec. 17-129(4).

Mr. Stokes testified the second floor of the building was previously open space and has now been found to have apartments with bedrooms, closets and a kitchen.

Mr. Stokes testified he had spoken with the building owner, Craig Bobbitt, who leases the business to Monique Richter.

Mr. Stokes testified the pictures were taken prior to December 2009 and that there has been no re-inspection of the property.

In response to a question from Attorney Gougelman, Mr. Stokes testified the notice was hand served to Monique Richter.

Attorney Colombo entered into the record as Town Exhibits the following documents:
Exhibit A – A series of 19 pictures depicting the inside of the business and apartments
Exhibit B – The Notice of Code Enforcement Violation letter signed by Mr. Stokes dated December 1, 2009
Exhibit C – The Statement of Violation and Request for Hearing signed by Mr. Stokes and notarized on January 15, 2010
Exhibit D – The certified letter sent to Mr. Bobbitt on December 1, 2009, which was returned to sender as refused
Exhibit E – The Affidavit of Posting and pictures depicting proof of posting
Exhibit F – Pictures of surfboard manufacturing and repair
Exhibit G – Pictures depicting building materials for work done without a permit and on a commercial building with out a site plan.

Violation Two:
Mr. Stokes testified an owner of a business cannot do construction on the business of they do not own the building without having a contractor do the work.

Violation Three:
Mr. Stokes testified there are many manufacturing products on site and the ventilation system is inadequate in violation of Sec. 17-107 and Sec. 17-126(2)(a).

Violation Four:
Mr. Stokes testified that the dwelling is in a commercial zone and is prohibited per Sec. 17-126(3)(r).

Mr. Stokes stated his recommendation would be as follows:
Violation Three – Ten (10) days to come into compliance or face a fine of $250.00 per day

Violation Four – Three (3) months to come into compliance or face a fine of $250.00 per day

Violation One – Three (3) months to come into compliance or face a fine of $250.00 per day

Violation Two – The balcony needs to be taken down and any further construction requires a licensed contractor. If the balcony is not taken down then a variance needs to be applied for.

Attorney Gougelman swore in Mr. Craig Bobbitt.

Mr. Bobbitt stated he had spoken with Mr. Stokes and agreed he would no longer build surfboards. Mr. Bobbitt also stated there used to be a porch on the building and he removed it because he deemed it unsafe and he was just rebuilding what was there. Mr. Bobbitt submitted pictures of the building with a porch, labeled as Respondent’s Exhibit. Mr. Bobbitt stated he added more apartments in 1999 and didn’t know he couldn’t return the use back to residential. Mr. Bobbitt stated he had built a few surfboards and he will not do that anymore and that the State Fire Marshall had been there and inspected the building where he housed the chemicals.

Mr. Bobbitt stated on violation one that there were always two (2) apartments there. He also stated he owns everything and that Monique Richter and his son run the business. He also agreed to comply by getting the necessary permits.

Attorney Gougelman asked Mr. Bobbitt if from 1980 on if there were any period of time the apartments had not been used.

Mr. Bobbitt responded that the upstairs was used for storage for about seven to eight years. He explained he reconfigured the inside where the two apartments were to expand the retail part of the business and have one small apartment.

Mr. Stokes was recalled and reminded he was still under oath. Mr. Stokes testified that in 1981 the zoning changed to no mixed use allowed in the commercial area of Fifth Avenue.

Attorney Gougelman stated that the information needed to be presented to the Board after it is researched.

Attorney Gougelman recommended that violation two pertaining to FS 489.103 be dismissed as the Board only has jurisdiction over violations of the Town’s ordinances.

Attorney Colombo noted the area upstairs was used for storage for 8 continuous years and exceeds the six (6) months and it is a non-conforming use and they shouldn’t be living quarters.

Attorney Gougelman asked Mr. Bobbitt who was living in the apartments and if they had rental agreements.

Mr. Bobbitt stated he lived there, his son and Monique lived there and the other tenants were on a month-to-month verbal agreement. Mr. Bobbitt also stated the Town issued him a Business Tax Receipt for the current fiscal year for the apartments.

Attorney Gougelman stated the issuance of a Business Tax Receipt does not grandfather anyone, it is only a tax that is paid to the town.

Chairman Frye closed testimony and went into deliberations.

Mr. Brillante moved to find in Case No. 10-006 the Respondent Craig Bobbitt, Spectrum Surf Shop of Brevard, Inc., owner, 130 Fifth Avenue, Indialantic, Florida be found in violation of Code Section 17-129(4) Site Plan Approval and that the Respondent be given 92 days to come into compliance or be fined $200.00 per day for each day the violation continues beyond the 92 days. This pertains to the porch and other modifications made to the building without the proper permits.

Mr. Brillante moved to find in Case No. 10-006 the Respondent Craig Bobbitt, Spectrum Surf Shop of Brevard, Inc., owner, 130 Fifth Avenue, Indialantic, Florida be found in compliance of Florida Statute 489.103.

Mr. Brillante moved to find in Case No. 10-006 the Respondent Craig Bobbitt, Spectrum Surf Shop of Brevard, Inc., owner, 130 Fifth Avenue, Indialantic, Florida be found in violation of Code Section 17-107 Industries Prohibited and 17-126 (2)(a) “C” and “C-1” Commercial Districts and that the Respondent be given 25 days to come into compliance or be fined $250.00 per day the violation continues beyond the 25 days.

Mr. Brillante moved to find in Case No. 10-006 the Respondent Craig Bobbitt, Spectrum Surf Shop of Brevard, Inc., owner, 130 Fifth Avenue, Indialantic, Florida be found not in violation of Code Section 17-126(3)(r) “C” and “C-1” Commercial Districts and 17-162 Discontinuance pending further research by the Code Enforcement Officer
Mr. Adams seconded.

Chairman Frye would like Violation Four tabled pending further information that was requested by the Board. Chairman Frye noted the Board couldn’t find either compliance or non-compliance in Florida Statute for reason of no jurisdiction.

Chairman Frye moved to amend the motion as follows:
Violation One – 92 days to come into compliance or a fine of $200.00/ day beyond the 92 days, Violation Two – amended to dismiss for lack of jurisdiction.
Violation Three – 25 days to come into compliance or a fine of $200.00/day beyond the 25 days. Violation Four – tabled until further information is presented to the Board.

Mr. Adams seconded. Motion carried unanimously.

D. C.E.B. Case Number 10-007 Marcio & Simone Lima
200 Michigan Avenue
Indialantic, Florida, 32903
And
Marcio & Simone Lima
601 North Miramar Avenue
Indialantic, Florida 32903
Town Code Section 7-103 – Parking, storage and use of certain vehicles.

Mr. Stokes noted that a notice of violation letter went out December 1, 2009 with seven (7) days to comply. The property was re-inspected at a later date and they were still not in compliance. The notice of hearing was sent certified mail and returned unclaimed by the Post Office.

Attorney Colombo noted that since there was no evidence of the December 1, 2009 notice of violation being received the Town would re-notice and re-cite via hand delivery.

7. OTHER

A. C.E.B. Case Number 09030 Ocean Crest condominium Association, Inc.
50 Eleventh Avenue
Indialantic, Florida 32903
Attn: David L. Bryant, Wendy E. Murray, Susan Webster, and Michael M. Wallis
Town Code Section 7-61 – Wet standpipe and hose systems required
Town Code Section 7-62 – Fire alarm systems required

Attorney Gougelman swore in Wendy E. Murray, resident at Ocean Crest Condominium.

Ms. Murray noted she had received her notice of hearing on Saturday before the meeting date. The association did get estimates from different contractors and noted they were high. The association has sought counsel for a legal opinion.

Attorney Gougelman noted Code Enforcement did an inspection and noted certain fire safety requirements had not been included, which were alarms and standpipes. The residents bought the units and the units were issued certificates of occupancy and the owners assumed everything was okay. The Board previously issued an order with a one-year compliance on the alarm and one and a half years on the standpipes. The residents hired Attorney Curt Mosley. Attorney Mosley wrote a letter on behalf of the association to the Town and cited Section 718.112 (2)(l) (copy handed out by Attorney Gougelman). The attorneys have been in discussion to come to an agreement, but no agreement has been reached yet. Attorney Gougelman is not clear this statute is applicable to this situation. Attorney Gougelman noted the following sources to get guidance from
Ø State Fire Marshall
Ø Attorney General’s Office for an interpretation
Ø Dismiss the order per Attorney Mosley’s request
Ø Keep the order in place

Attorney Colombo noted the original order was issued September 23, 2009 and the association didn’t vote until October 26,2009.

Attorney Gougelman noted that in the state statutes the Respondent can at any time come back before the Board and ask for relief of the order.

Attorney Colombo noted that speaking on behalf of the Fire Chief, not having an alarm system is not acceptable.

Attorney Gougelman swore in Raymond Carr, resident at Ocean Crest Condominium.

Mr. Carr requested if the Town wants the association to implement the requested items, would the Town bear half of the expense, because certificates of occupancy were issued by the Town for the condominiums.

Chairman Frye moved to take the issue under advisement and see if the attorneys can reach a middle ground. Mr. Adams seconded. Motion carried unanimously.

8. REPORT OF NON-COMPLIANCE WITH PREVIOUS ORDERS

9. REPORT OF COMPLIANCE WITH PREVIOUS ORDERS

A. C.E.B. Case Number 09-021 Indialantic One Condominium
Homeowners Association
601 North Miramar Avenue
Indialantic, Florida 32909
Units 101 & 302

Town Code Section – Numerous Fire Department Issues

Attorney Gougelman swore in Dan Agent, Space Coast Property Management.

Mr. Agent noted the association has been working with the Fire Department on all issues and the developer is no longer there.

Attorney Gougelman swore in Brian Young, Space Coast Property Management.

Mr. Young noted the association has been working with the Fire Department and is now in compliance.
Attorney Gougelman swore in Fire Chief Jon Macdonald.

Chief Macdonald noted the association is in compliance and there are no further issues.

Mr. Adams moved to release the lien and note it as the obligation has been fulfilled. Mr. Heiss seconded. Motion carried unanimously.

10. UNFINISHED BUSINESS

11. NEW BUSINESS

12. ADJOURNMENT

Mr. Brillante moved to adjourn at 9:15 p.m. Mr. Adams seconded. Motion carried unanimously

______________________________ __________________________
Ronald David Frye, Chairperson Jennifer M. Fortin, Secretary