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HomeMy WebLinkAbout05-21-2024 MinutesCITY OF SEBASTIAN, FLORIDA MINUTES SPECIAL MAGISTRATE CODE ENFORCEMENT HEARING MAY 21, 2024 The hearing was called to order at 2:00 p.m. by Special Magistrate Kelley H. Armitage. Present: Special Magistrate Kelley H. Armitage, City Attorney Jennifer Cockcroft, Code Enforcement Officer Curtis Bloomfield, Code Enforcement Records Specialist Naiomi Charles, and Janet Graham, Technical Writer Also Present: Alix Bernard, Community Development Director, Keiron Keith Jackman, Jackman Law Group, Flor Lopez, Court Reporter Code Enforcement Records Specialist Naiomi Charles swore in staff and all persons who would be speaking. I. Call To Order II. Initial Hearing of Code Violation A. DAMIEN & BONNIE GILLIAMS 490 US Highway 1 Sec. 54-2-3.6(d)(4) Mobile Food Establishment Case No.: 24-012555 City Attorney Jennifer Cockcroft swore in Curtis Bloomfield, Code Enforcement Officer. Curtis Bloomfield, Code Enforcement Officer with the City of Sebastian, identified himself and his position with the City of Sebastian. On Thursday, January 18, 2024, Mr. Gilliams had a meeting with the City Manager and the Community Development Director, Alix Bernard. At this meeting was discussed that Mr. Gilliams’ property at 490 US 1, No Name Bar, had several violations. The particular violation we are dealing with presently is Sec. 54-2-3.6(d)(4). On March 26, 2024, Officer Bloomfield inspected Mr. Gilliams’ property and found that it was in violation as stated above, which section governs mobile food trucks. He placed a door hanger with notice and returned the next day, March 27, 2024, and posted the property and also sent violation notices to the owner via Certified Mail. On April 15, 2024 the Certified Mail was returned unclaimed, and the property was placed in queue for this magistrate hearing. On April 18, 2024 a Notice to Appear was posted at the property and sent via Certified Mail to the owner of record. The Certified Mail was unclaimed. He stated that Alix Bernard can explain this matter more in depth, as she was at the meeting with Mr. Gilliams and discussed with him this particular violation. PAGE 2 Ms. Cockcroft asked Officer Bloomfield several questions relating to this matter. Officer Bloomfield offered several photographs showing the food truck on the property in question. Officer Bloomfield stated that he has not observed the food truck operating while on the property. He also stated that he has observed the food truck being on the property more than three days in a calendar week. He answered several questions with regard to his discussions with Mr. Gilliams. Ms. Cockcroft offered the Notices of Violation and the photos into evidence. There were no objections. Mr. Jackman asked Officer Bloomfield several questions about hi s activity and interactions with the owners of the property in question. Ms. Cockcroft called Alix Bernard who identified herself and her position with the City of Sebastian, and she asked Ms. Bernard several questions regarding this matter. Ms. Bernard testified that she is familiar with the Land Development Code and its amendments. She also opined that the trailer was operating as a mobile food establishment, and she observed it being on the property for more than three days in a week. Mr. Jackman asked Ms. Bernard several questions regarding this matter, including what the property is zoned as. Ms. Bernard stated it is CR, which stands for Commercial Riverfront. He also questioned Ms. Bernard regarding permitted uses for Commercial Riverfront which she enumerated. The City having nothing further, Mr. Jackman called Mr. Gilliams. Mr. Gilliams identified himself and his wife and son as the owners of the No Name Bar. Mr. Jackman questioned Mr. Gilliams regarding his interaction with the City as to the mobile food truck and the code violation and entered several documents/photographs into the record. There were questions regarding how the food was prepared and served. Mr. Jackman recalled Officer Bloomfield, and questions were asked and answered as to Officer Bloomfield’s activity regarding this matter. Mr. Jackman also called Alix Bernard and questioned her regarding her involvement with this matter, which she explained and reviewed. Magistrate Armitage asked Ms. Cockcroft to identify what the violation is. Ms. Cockcroft stated the mobile food establishment is in violation for being on the property for more than three days per calendar week, and she read the section of the Code addressing this question. Mr. Jackman also presented argument on this matter and read part of the Statute which addresses this matter. He stated the ordinance defines it similarly. The Magistrate asked Mr. Jackman for case law stating that this question is preempted to the State, and the City is not permitted to regulate this matter. Mr. Jackman cited Phantom Clearwater, Inc vs. Pinella City. PAGE 3 Ms. Cockcroft read from the article regarding zoning restrictions. She argued that the City has the ability to regulate food-dispensing vehicles whether it is called - mobile food dispensing vehicle or a temporary commercial vehicle. Mr. Jackman stated he agrees with that, but he is saying it is limited to the operation of the statute. They also believe that how long it stays on the property is not related to the operation. There was extended discussion among the parties and the Magistrate , after which the Magistrate stated that it is the City’s position that the statute does not preempt what the local ordinance prohibits. Ms. Cockcroft stated that is correct. Mr. Jackman said his position is, if we look to the text, the text says you cannot construe this to affect their ability to regulate the operation. He does not believe that how long you can keep a mobile food truck or a commercial kitchen on a property goes to the operation of that business. The Magistrate asked what it goes to. Mr. Jackman stated it goes to a permit being able to have it there. It goes to a regulation rather than the operation itself. He and his clients are still saying it is a commercial kitchen, and the ordinance does not speak to commercial kitchens, because the definition of the mobile food establishment fits what the state’s statute’s definition of a mobile food establishment is. The state has a different definition, which is the commercial kitchen. When you look at the ordinance, for instance operating requirements, prohibitions, etc. in that section, it says they must get permission from the owner in order to be there, and that the City can come and check to make sure that they have permission from the owner to be sure they have access to bathrooms, etc. That is in conjunction with the brick-and-mortar section. He stated that his client would have to have permission from himself to have a mobile food truck on his own property. Clearly, the way the ordinance is written is done so to address a mobile food establishment that operates on its own and not in conjunction with a brick-and-mortar. His client is saying it is a commercial kitchen. If the City of Sebastian wants to reach his client, they need to update, amend, or include a particular item that reaches his client’s particular situation, which is selling takeout or delivery-only food from a trailer. The ordinance does not reach that. It speaks to a mobile food establishment. There was extended argument on this subject among the City Attorney, Mr. Jackman, and the Magistrate. Mr. Jackman entered Exhibit A-3 into evidence. There was no objection from the City Attorney. Magistrate ordered a short break. (SHORT BREAK TAKEN) After lengthy argument and discussion, the Magistrate asked that briefs be filed by both parties by the close of business on June 4th and submitted via email to Naiomi Charles, Code Enforcement Records Specialist. PAGE 4 B. DAMIEN AND BONNIE GILLIAMS 490 US HIGHWAY 1 Sec. 54-4-18.2(b) Conformance with Zoning Regulations Case No.: 24-012552 The City Attorney read the case into the record. Curtis Bloomfield, Code Enforcement Officer identified himself and his position with the City of Sebastian. He testified that on March 26th he visited the property at 490 US1, known to him as the No Name Bar, and found it in violation of Section 54-4-18.2(b). A notice of violation was left at the door, and on March 27th, 2024 he returned to the property and posted it with a letter, and a letter was also sent via Certified Mail to the owner of record. On April 15, 2024 the Certified Mail was returned unclaimed. The property was placed in queue for this hearing. He showed photographs of what the travel trailer looks like and identified the violation. He stated that this is considered storage. The owner is storing this travel trailer, and it has nothing to do with their business on this commercial property. This is a violation of their site plan, and they would need to modify their site plan to have this trailer on the property. Ms. Cockcroft asked that the photos be entered into the record as well as the notices and the mailings of Certified Mail. Officer Bloomfield was at the property on the morning of this hearing, and the trailer was still there. He stated he explained to the owner what the ordinance is and why he is in violation. The owner stated his position, and Officer Bloomfield advised him to make that argument in front of the magistrate. He stated he is not aware of how the owner is using that trailer. There was no objection. Mr. Jackman questioned Officer Bloomfield regarding this matter. He asked Officer Bloomfield to read the section of the ordinance into the record, which was marked as Exhibit 1. After further questioning of Officer Bloomfield regarding the trailer and how the ordinance affects it, Mr. Jackman ended his questioning. At this time, City Attorney Cockcroft moved to dismiss this violation at this time. Mr. Jackman asked to reserve jurisdiction on this case. The magistrate stated he does not have jurisdiction after the City withdrew the violation, and he ordered that the case is dismissed. Mr. Jackman asked for costs, and the magistrate stated that, since he is not the prevailing party, he does not get costs. Mr. Jackman stated he will provide the magistrate with caselaw that states when you dismiss an action, he is entitled to costs because he is the prevailing party because the City dismissed the case. The magistrate disagreed. C. GAIL ALLEN 112 DUNCAN STREET PAGE 5 Sec. 66-3(1) Illustrative Enumeration (Trash and Debris) Case No.: CE 24-010021 Ms. Cockcroft read the docket for Notice of Code Violation. Magistrate Armitage called on anyone present who wished to testify. There being no one present from the public, Ms. Cockcroft called on Officer Curtis Bloomfield to present his case, and she asked that his documents be entered into the case evidence. Officer Curtis Bloomfield identified himself and his position with the City of Sebastian. This case is for 112 Duncan Street. The case originally started with Code Enforcement Officer Richard Iachini, but Officer Bloomfield has visited the property and reviewed the case file, and he concurs with Officer Iachini that this property, which was cited on March 9, 2024, under Section 66-3(1) is in violation. The property was found to be in violation, and it was posted on March 11, 2024, and a Notice of Violation was sent via Certified Mail to the listed owner. On April 24, 2024, the Certified Mail was returned unclaimed and unable to forward, and the property was placed in queue for this hearing. On April 18 th the Notice of Hearing was posted at the property and sent via Certified Mail. He showed several photos of the condition of the property. This case is to have the rubble removed. The owner is deceased, and the bank was contacted. The bank states that they are just starting the foreclosure process and would not be able to assist. Staff recommends an order of no time to cure and to allow the City to enter and abate the property in addition to placing the cost of such abatement as a lien against the property and any other property owned by this owner. He also requested administrative costs of $250.00 and any future violations of the same ordinance brought before the Special Magistrate will be considered a repeat violation and may be subject to additional fines in accordance with Florida Statute 162. There being no one else present to testify, the Magistrate so ordered. D. DOUGLAS SASTRAM 1006 LANDSDOWNE DRIVE Sec. 66-3(11) Illustrative Enumeration (Grass) Case No.: CE 23-041133 Sec. 66-3(1) Illustrative Enumeration Case No.: CE 23-041134 (Trash and Debris) Ms. Cockcroft read the docket for Notices of Code Violation. Ms. Cockcroft said the owner was here today, and he consents to an abatement on the property. Officer Curtis Bloomfield, Code Enforcement Officer with the City of Sebastian, identified himself and his position with the City of Sebastian. Officer Bloomfield stated that this case originally started with Code Enforcement Officer Richard Iachini. Officer Bloomfield has since reviewed the files and visited the property, and he concurs with Officer Iachini’s findings. The property was cited on September 14, 2023 and was posted on September PAGE 6 22, 2023. The posting and Notice of Violation were also sent via Certified Mail. The Certified Mail was returned unclaimed and unable to forward on October 23, 2023. It was then placed in queue for the next hearing. The owner was here previously in January 2024 for a hearing. At that time, it was stated on the record that the owner was given 60 days to come into compliance, and he has not. Staff is asking, and the owner consented as the City Attorney stated, for an order of no time to cure and to allow the City to enter and abate the property and in addition to place the cost of such abatement as a lien against the property and any other property owned by the listed owner as well as administrative costs of $250.00 in each case. Any future violation of the same ordinance brought before the Special Magistrate would be considered as a repeat violation and may be subject to additional fines in accordance with Florida Statute 162. Ms. Cockcroft stated that the owner asked that the City abate the property for a reasonable amount, and the City does have contracts for that in the lowest amount. The owner asked that the City coordinate with him so that he could be on the property during the abatement, and Officer Bloomfield is going to arrange that. So ordered by the magistrate. E. SEBASTIAN TOWNHOUSES LLC 690 WAVE STREET Sec. 54-2-7.5 Accessory Structures Case No. CE 23-050217 Ms. Cockcroft read the docket for Notices of Code Violations. Code Enforcement Officer Curtis Bloomfield identified himself and his position with the City of Sebastian. He stated that this case also originated with Code Enforcement Officer Richard Iachini. He has since reviewed the files, visited the property, and he concurs with Officer Iachini’s findings. This is a violation that was sent on November 14, 2023. The property was posted on November 16, 2023, and the notice was also sent to the listed owner via Certified Mail. On November 20, 2023, the Certified Mail was signed fo r, but the owner did not comply, and the property was placed in queue for the next scheduled hearing, which is this hearing. The Notice to Appear was posted on the property and sent via Certified Mail to the listed owner of record. The Certified Mail was returned . The violation is for trash and debris. Staff recommends an order of no time to cure and to allow the City to enter and abate the property; in addition, to place the cost of such abatement as a lien against the property and any other property owned by the listed owner, as well as administrative costs in the amount of $250.00. Any future violation of the same ordinance brought before the Special Magistrate will be considered a repeat violation and may be subject to additional fines in accordance with Florida Statute 162. There being no one present to testify in this case, so ordered by the magistrate. PAGE 7 F. EVA & CLAUDE Wright 481 LAYPORT DR Sec. 66-3(1) Illustrative Enumeration (Trash & Debris) Case No.: 24-012985 Sec. 54-2-7.13(b)(9) Parking & Storage of Recreational Vehicles Case No.: 24-012577 Ms. Cockcroft read the docket for Notices of Code violations. Code Enforcement Officer Curtis Bloomfield identified himself and his position with the City of Sebastian. Officer Bloomfield stated that this owner actually came before the magistrate on August 29, 2023. He offered the Order that was given at that time. The owner was given until September 8, 2023 to come into compliance. He did initially, but now he is violating the same two sections of the ordinance. The City is asking for him to be adjudicated a repeat violator. He was found guilty of violating Section 54-2-7.13)b)(4) at the August 29, 2023 hearing and also Section 66-3(1). Staff is asking once again the owner to be found a repeat violator and is recommending for an order of no time to cure and to allow the City to enter and abate the property and, in addition, to place the cost of such abatement as a lien against the property and any other property owned by the listed owner, plus administrative costs in the amount of $250.00 for each case for a total of $500.00. Any future violation of the same ordinance brought before the Special Magistrate should be considered a repeat violation and may be subject to additional fines in accordance with Florida Statute 162. There being no one present to testify on this case, so ordered. The hearing was adjourned at 4:35 p.m. jg