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HomeMy WebLinkAbout06161993 City of Sebastian POST OFFICE BOX 780127 [] SEBASTIAN, FLORIDA 32978 TELEPHONE (407) 589-5330 n FAX (407) 589-5570 SEBASTIAN CODE ENFORCEMENT BOARD REGULAR MEETING JUNE 16~ 1993 - 2:00 P.M. AGENDA CALL TO ORDER ROLL CALL APPROVAL OF MINUTES - REGULAR MEETING OF MAY 19, 1993 ATTORNEY'S MATTERS: OLD BUSINESS: AMEND ORDER OF DAVID KOZDRA, CASE # 92-7475 NEW BUSINESS: CASE# 93-8246, VITO PICCA CASE# 93-8160, WILLIAM BARBER CASE# 93-8115, DENNIS DERNBACH CASE# 92-7418, VICTOR SMITH CASE# 93-7709, E.W. TAYLOR & JOHN PFENNINGER, JR. CASE# 93-8164, CHRIS HERBST BOARD ATTORNEY REQUEST AND REPORTS: BUILDING OFFICIAL'S MATTERS: GENERAL DISCUSSION: PUBLIC INPUT: ADJOURN: NOTE: IF ANY PERSON DECIDES TO APPEAL ANY DECISION MADE ON THE ABOVE MATTERS, HE/SHE WILL NEED A RECORD OF THE PROCEEDINGS AND FOR SUCH PURPOSES, HE/SHE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY IN EVIDENCE ON WHICH THE APPEAL IS BASED. City of Sebastian POST OFFICE BOX 780127 [] SEBASTIAN, FLORIDA 32978 TELEPHONE (407) 589-5330 [] FAX (407) 589-5570 PUBLIC MEETING CITY OF SEBASTIAN 1225 MAIN STREET INDIAN RIVER COUNTY FLORIDA THE SEBASTIAN CODE ENFORCEMENT BOARD OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, WILL HOLD THEIR REGULAR MEETING ON WEDNESDAY, JUNE 16, 1993 AT 2:00 P.M. IN THE CITY COUNCIL CHAMBERS. G. KUBES, SECRETARY SEBASTIAN CODE ENFORCEMENT BOARD NOTE: IF ANY PERSON DECIDES TO APPEAL ANY DECISION MADE ON THE ABOVE MATTERS, HE/SHE WILL NEED A RECORD OF THE PROCEEDINGS, AND FOR SUCH PURPOSES, HE/SHE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY IN EVIDENCE ON WHICH THE APPEAL IS BASED. PUBLCMTG.DOC CODE ENFORCEMENT BOARD REGULAR MEETING JUNE 16~ 1993L 2:00 P.M. * MEETING WAS CALLED TO ORDER BY VICE CHAIRMAN<PISCHER~AT 2:00 P.M. PRESENT: ROLL CALL: PRESENT: MR. METCALF MR. TOZZOLO MR. NICOLINI MR. FISCHER MR. DEROBERTIS VICE CHAIRMAN KOSTENBADER ATTORNEY LULICH EXCUSED: CHAIRMAN GILLIAMS ROBERT NICHOLSON, CODE ENFORCEMENT OFFICER RICHARD TORPY, ASSISTANT CITY ATTORNEY BRUCE COOPER, BUILDING OFFICIAL APPROVAL OF MINUTES: A MOTION WAS MADE BY MR. FISCHER, SECONDED BY MR. TOZZOLO TO APPROVE THE MINUTES OF THE REGULAR MEETING HELD ON MAY 19, 1993. THE MOTION WAS CARRIED. ATTORNEY'S MATTERS: NONE OLD BUSINESS: AMEND ORDER OF CASE# 92-7475 DAVID KOZDRA RICHARD TORPY, ASSISTANT CITY ATTORNEY, STATED THE CITY IS ASKING THE BOARD TO AMEND THE ORDER. MR. KOZDRA HAS COME INTO COMPLIANCE BUT THERE WAS A FLAT FINE IMPOSED IN THIS CASE WHICH, IN THE CITY'S POSITION IT SHOULD NOT BE IMPOSED. THE CITY REQUESTED THE BOARD TO ELIMINATE THE FLAT FINE OF $50.00 THAT HAD BEEN IMPOSED. A MOTION WAS MADE BY MR. METCALF, SECONDED BY MR. FISCHER TO AMEND THE ORDER AS REQUESTED BY THE CITY. MOTION CARRIED. CODE ENFORCEMENT BOARD - REGULAR MEETING - JUNE 16~ 1993 PAGE 2 NEW BUSINESS: CASE# 93-8246 VITO PICCA THE BOARD ATTORNEY, STEVE LULICH, SWORE IN EVERYONE THAT WAS TO TESTIFY DURING THIS MEETING. RICHARD TORPY, ASSISTANT CITY ATTORNEY, QUESTIONED ROBERT MCCLARY, CITY MANAGER, CONCERNING THIS CASE. MR. MCCLARY SENT A LETTER DATED FEBRUARY 28, 1991 TO MR. & MRS. VITO PICCA AT~1338 HAVERFORD LANE, SEBASTIAN. HE STATED THE CITY HAD RECEIVED SEVERAL CALLS FROM MR. PICCA AND HIS NEIGHBOR MR. JEROME PICCA REGARDING THE CONDITION OF THE DRAINAGE IN FRONT OF THEIR HOMES. PRIOR TO THIS LETTER BEING SENT, THE CITY ON TWO OCCASIONS ATTEMPTED TO DO CORRECTIVE ACTION WITHIN THE DRAINAGE SWALE. THE CONCERN THE CITY HAD THAT IT WAS APPARENT THAT THESE TWO INDIVIDUALS WHO WERE NEIGHBORS DiD NOT GET ALONG VERY WELL. AT THAT TIME THE CITY DID NOT HAVE AN ENGINEER ON STAFF SO THE CITY ENGAGED THE CONSULTANT SERVICES OF MOSBY & ASSOCIATES OF VERO BEACH. MOSBY & ASSOCIATES WAS ASKED TO DO AN EVALUATION BECAUSE THE CITY DID RECOGNIZE THERE WAS A DRAINAGE PROBLEM THERE. THE CITY HAD A PRIVATE CONTRACTOR ACTUALLY DO THE WORK AND BY THAT TIME DAN ECKIS, CITY ENGINEER, WAS ON BOARD AND SUPERVISED. DAN ECKIS REPORTED TO MR. MCCLARY THAT THE WORK WAS DONE IN COMPLIANCE WITH THE SPECIFICATIONS. MR. MCCLARY STATED HE SENT BOTH VITO PICCA AND JEROME PICCA THE SAME LETTER DATED 2/28/91. JEROME PICCA SIGNED THE CERTIFIED LETTER AND MR. MCCLARY HANDED VITO PICCA THE ORIGINAL LETTER WHILE HE WAS IN MR. MCCLARY'S OFFICE. THE PURPOSE OF THIS LETTER WAS TO INFORM MR. PICCA THAT HE WAS NOT TO ALTER THE DITCH WITHOUT THE PROPER PERMIT. THIS LETTER DATED 2/28/91 WAS GIVEN AS CITY'S EXHIBIT #1. DAN ECKIS, CITY ENGINEER, WAS QUESTIONED BY THE ASSISTANT CITY ATTORNEY. MR. ECKIS STATED HE IS QUALIFIED IN THE AREA OF DRAINAGE AND IS A CERTIFIED PROFESSIONAL REGISTERED ENGINEER IN THE STATE OF FLORIDA. THE ENGINEERING DEPARTMENT RECEIVED A DRAINAGE COMPLAINT AND MADE AN INVESTIGATION AND FOUND THAT SOME DIRT WAS PLACED IN THE FLOW LINE OF THE DITCH. TWO TO THREE INCHES OF FILL HAD BEEN PLACED IN THE FLOW LiNE OF THE DITCH UP TO THE EDGE OF THE PAVEMENT. IN MR. ECKIS'S OPINION IT OBSTRUCTS THE FLOW OF DRAINAGE AND ALSO CAUSES ADDITIONAL PONDING IN THE STREET WHICH DESTROYS THE INTEGRITY OF THE BASE. CODE ENFORCEMENT BOARD - REGULAR MEETING - JUNE 16~ 1993 PAGE 3 BRUCE COOPER, DIRECTOR OF COMMUNITY DEVELOPMENT/BUILDING OFFICIAL, WAS QUESTIONED BY RICHARD TORPY, ASSISTANT CITY ATTORNEY. MR. COOPER WAS ALERTED TO THIS SITUATION AFTER MR. ECKIS HAD MADE A CONFIRMATION THAT THE SWALE HAD BEEN ALTERED. AT THAT TIME SINCE THE PREVIOUS NOTICE WAS GIVEN TO MR. PICCA ADVISING HIM OF THE SECTION OF THE CODE AND THAT HE WAS NOT ALLOWED TO ALTER THIS. THE CITY PREPARED A NOTICE OF HEARING TO BRING BEFORE HIM AS A REOCCURRENCE. AT THE TIME WHEN MR. COOPER WENT OUT TO DELIVER THIS NOTICE, MR. VITO PICCA WAS OUTSIDE AND MR. JERRY THOMAS WAS ALSO WITH MR. COOPER. MR. COOPER ASKED MR. PICCA IF HE HAD PLACED ANY FILL IN THE DRAINAGE SWALE. VITO PICCA ANSWERED YES, ONLY AN 1/8TH OF AN INCH. ATTORNEY LULICH READ THE SECTION OF THE CODE (SECTION 26-2) TO MR. PICCA. THE ASSISTANT CiTY ATTORNEY ASKED MR. PICCA IF HE HAD EVER SPOKEN TO MR. COOPER. MR. PICCA STATED HE DID NOT. THE NOTICE OF HEARING TO APPEAR BEFORE THE BOARD WAS GIVEN AS THE CITY'S EXHIBIT #2. RICHARD TORPY ASKED MR. PICCA IF HE RECEIVED THE NOTICE FROM MR. COOPER. MR. PICCA STATED MR. COOPER GAVE HIM THE LETTER. MR. PICCA THOUGHT THE LETTER HE RECEIVED WAS DIFFERENT THAN THE COPY THE CITY SUBMITTED AS EVIDENCE. THE ACTUAL NOTICE OF HEARING THAT MR. PICCA RECEIVED WAS GIVEN AS THE CITY'S EXHIBIT #3. BRUCE COOPER TESTIFIED TO WHAT ACTUALLY HAPPENED WHEN HE GAVE THE NOTICE OF HEARING TO MR. PICCA. AFTER QUESTIONING HIM THAT HE DID ACTUALLY PLACED FILL IN THE SWALE, MR. COOPER THAN GAVE HIM AN ENVELOPE THAT HAD WHAT YOU SEE AS EXHIBIT #2 AND A COPY WHICH IS EXHIBIT #3. MR. PICCA DID NOT WANT TO SIGN AT FIRST. AFTER HE OPENED THE NOTICE, MR. COOPER ADVISED HIM THAT IT WAS NOT AN ADMISSION OF GUILT AND THAT HE WAS ONLY SIGNING THAT HE RECEIVED THE NOTICE. VITO PICCA TESTIFIED. A FEW DAYS AFTER THE DRAINAGE WAS CORRECTED, HE SAW THE WATER BACK UP ON HIS FRONT LAWN. HE WAS TOLD HE WOULD HAVE TO WAIT 76 HOURS BEFORE THE RAIN WOULD BE GONE. AFTER 76 HOURS, THE RAIN WAS STILL THERE. HE STATED THE FILL WAS ONLY ON HIS PROPERTY SO HE COULD MOW EASIER. FOR THE RECORD, THE CITY OBJECTED TO MR. PICCA'S TESTIMONY. MR. PICCA GAVE HIS SURVEY AS RESPONDENT'S EXHIBIT #1. THE CITY SAYS MR. PICCA WAS WELL AWARE OF THE SITUATION OF NOT TO PUT ANYTHING IN THE DITCH. CODE ENFORCEMENT BOARD - REGULAR MEETING - JUNE 16~ 1993 PAGE 4 THE CITY'S PROPOSED ORDER IS AS FOLLOWS IN REFERENCE TO CASE 93-8246 INVOLVING VITO PICCA: FINDINGS OF FACT: THAT THE RESPONDENT IS THE OWNER OF THE RESIDENCE LOCATED AT LOT 25 & 1/2 OF LOT 26, BLOCK 276, SEBASTIAN HIGHLANDS UNIT #10, 1338 HAVERFORD LAND AND THAT THE RESPONDENT HAS MODIFIED THE SWALE WITHIN THE CITY RIGHT- OF-WAY. CONCLUSIONS OF LAW: THAT SECTION 26-2 (BLOCKAGE OR UNREASONABLE OBSTRUCTION OF NATURAL FLOW OF WATER) OF THE CODE OF ORDINANCES OF THE CITY OF SEBASTIAN HAS BEEN VIOLATED. RESPONDENT SHALL HAVE 14 CALENDAR DAYS FROM THE DATE OF THIS HEARING TO BRING THE PROPERTY INTO COMPLIANCE. UPON FAILURE OF THE RESPONDENT TO COMPLY WITH THIS ORDER, ON OR BEFORE THE 1 DAY OF JULY, 1993, THE CODE ENFORCEMENT BOARD MAY LEVY A FINE OF UP TO $250.00 FOR EVERY DAY THE VIOLATION CONTINUES PAST THE DATE SET FOR COMPLIANCE. AFTER A BRIEF DISCUSSION, A MOTION WAS MADE BY MR. METCALF, SECONDED BY MR. TOZZOLO IN REFERENCE TO CASE# 93-8246 OF A VIOLATION OF THE CODE OF ORDINANCES SECTION 26-2 INVOLVING MR. VITO PICCA, THAT A VIOLATION DID OCCUR AND THAT MR. PICCA CAUSED THE VIOLATION. THE VIOLATION CONSISTED OF MODIFICATION OF THE SWALE WITHIN THE CITY RIGHT-OF-WAY. THEREFORE AN ORDER OF ENFORCEMENT TO CORRECT THE VIOLATION IS WARRANTED. A FINE OF $250.00 IS IMPOSED TO BE PAID NOT LATER THAN 30 CALENDAR DAYS AFTER RECEIPT OF NOTICE OF THIS MEETING. IT IS COMMANDED THAT AFTER THIS TIME IF THE FINE IS NOT PAID, AN ORDER IMPOSING LIEN SHALL BE RECORDED IN THE PUBLIC RECORDS OF INDIAN RIVER COUNTY, FLORIDA. IF THE VIOLATION CONTINUES AFTER A RECEIPT OF NOTICE IS RECEIVED, A FINE OF $250.00 PER DAY SHALL BE IMPOSED. THIS PER DAY FINE SHALL CONTINUE FOR A PERIOD OF 30 DAYS. MR. METCALF WITHDREW HIS MOTION AND MR. TOZZOLO WITHDREW HIS SECOND. A MOTION WAS MADE BY MR. METCALF, SECONDED BY MR. TOZZOLO TO ACCEPT THE CITY'S RECOMMENDED ORDER WITH THE CHANGE FROM 14 CALENDAR DAYS TO READ 30 CALENDAR DAYS FROM THE DATE OF THIS HEARING. UPON FAILURE OF THE RESPONDENT TO COMPLY WITH THIS ORDER, ON OR BEFORE THE 16 DAY OF JULY, 1993, THE CODE ENFORCEMENT BOARD MAY LEVY A FINE OF UP TO $250.00 FOR EVERY DAY THE VIOLATION CONTINUES PAST THE DATE SET FOR COMPLIANCE. CODE ENFORCEMENT BOARD - REGULAR MEETING - JUNE 16~ 1993 PAGE 5 ROLL CALL: MR. METCALF MR. TOZZOLO MR. NICOLINI VICE CHAIRMAN KOSTENBADER MR. FISCHER MR. DEROBERTIS MOTION CARRIED. YES YES YES YES YES YES CASE# 93-8160 WILLIAM BARBER ASSISTANT CITY ATTORNEY, RICHARD TORPY, QUESTIONED MR. NICHOLSON, CODE ENFORCEMENT OFFICER REGARDING THIS CASE. WILLIAM BARBER WAS PRESENT AT THIS MEETING. MR. NICHOLSON RECEIVED A REPORT THAT MR. BARBER HAD A LANDSCAPE COMPANY. MR. BARBER TOLD MR. NICHOLSON THAT EXCEL UNLIMITED WAS NOT A LANDSCAPE COMPANY BUT IT WAS A COMPANY SET UP ONLY FOR I.R.S. PURPOSES TO WRITE OFF THE VEHICLES FOR HE AND HIS WIFE. MR. NICHOLSON HAD WRITTEN PROOF SUBMITTED TO HIM BY ONE OF MR. BARBER'S CLIENTS (MRS. NINA BURT). THIS WAS STARTED BY A COMPLAINT BY MRS. BURT REGARDING LANDSCAPING AT HER RESIDENCE. DURING THE CONVERSATION, SHE FURNISHED WORK ORDERS FOR PRUDENTIAL BUILDERS WHO MR. BARBER IS ONE OF THE PRINCIPLES. ALSO, SHE DROPPED OFF A LETTER THAT SHE WROTE. PRUDENTIAL BUILDER'S WORK ORDER WAS GIVEN AS THE CITY'S EXHIBIT #1. A NOTICE WAS SENT TO MR. BARBER ON MAY 5, 1993 BY CERTIFIED MAiL WHICH WAS RECEIVED ON MAY 6, 1993 AND THE NAME OF RECIPIENT WAS WILLIAM BARBER. THIS NOTICE OF VIOLATION WAS GIVEN AS THE CITY'S EXHIBIT #2. THE NOTICE OF HEARING WAS RECEIVED BY S. ANDERSON, MR. BARBER'S SECRETARY. THE NOTICE OF VIOLATION HEARING WAS GIVEN AS CITY'S EXHIBIT #3. ATTORNEY LULICH STATED FOR THE RECORD THAT SOMETIMES MR. BARBER RETAINS HIM OCCASIONALLY TO DO SERVICES FOR HIM. ALSO ASKED MR. BARBER IF HE WANTED THE CODE READ TO HIM. BARBER STATED NO. HE MR. WILLIAM BARBER GAVE HIS TESTIMONY. HE HAS SPOKEN TO MR. NICHOLSON AND MR. COOPER ABOUT THIS. HE FEELS THAT A CITY OFFICIAL HAS A JOB TO DO GOING OUT IN CODE ENFORCEMENT AND CODE ENFORCEMENT BOARD - REGULAR MEETING - JUNE 16~ 1993 PAGE 6 CHECKING ON CERTAIN THINGS THAT THEY FEEL IS A PROBLEM BUT HE ALSO FEELS IF SOMEONE COMES UP AND ASK ARE YOU RUNNING A BUSINESS AND HE TAKES HIS TIME OUT AND EXPLAINS HIS SITUATION TO THEM BUT THAT DOES NOT HAVE TO BE GOOD ENOUGH, THEY HAVE TO BRING THIS THING BEFORE THE CODE ENFORCEMENT THEN IT IS A BLOW OF HIS INTEGRITY FROM THE CITY'S ASPECT. HE THINKS IT IS UNNECESSARY FOR THE CODE ENFORCEMENT DEPARTMENT TO GO AHEAD AND PURSUE SOME OF THE THINGS THAT THEY HAVE PURSUED. TALKING ABOUT THIS CASE SPECIFICALLY, HE STATED HE WOULD SHOW THE BOARD THAT HE IS NOT RUNNING A BUSINESS AND NEVER HAD RAN A BUSINESS AND HE HAS BEEN HARASSED BY MR. NICHOLSON FOR THE LAST 4 OR 5 YEARS ABOUT OPERATING A LANDSCAPING BUSINESS. HE STATED HE HAS NEVER SOLD LANDSCAPING PLANTS AND NEVER WRITTEN A BILL TO ANYBODY UNDER EXCEL UNLIMITED. HE ALSO STATED HE DID NOT KNOW HOW MR. NICHOLSON RECEIVED THE WORK ORDER UNLESS HE CAME INTO HIS OFFICE AND TOOK IT. TO HAVE MR. NICHOLSON PURSUE THIS THING, HE CAN NOT HELP TAKE THAT IT IS A PERSONAL BLOW AGAINST HIS INTEGRITY. HE WANTS SOMEONE TO SHOW HIM SOME KIND OF PROOF THAT HE RUNS A LANDSCAPING BUSINESS. ATTORNEY TORPY ASKED MR. BARBER IN REGARD TO THE DOCUMENT THAT WAS OFFERED AS AN EXHIBIT, WHICH IS AN INTERNAL DOCUMENT FROM PRUDENTIAL BUILDERS, IF IT LISTS THE VARIOUS SUBCONTRACTORS THAT ARE WORKING ON HIS JOB SITES AND WHAT JOBS THEY ARE PERFORMING. MR. BARBER ANSWERED THAT IT WAS STRICTLY A REFERENCE FOR HIM TO CONTACT PEOPLE AND IT DOES NOT MEAN ALL THOSE PEOPLE ARE WORKING ON THAT JOB. THE ONLY REASON EXCEL IS PUT UNDERNEATH LANDSCAPING IS BECAUSE MR. BARBER AS PRUDENTIAL OVERSEES ALL THE LANDSCAPING THAT GOES IN. HE BUYS FROM 4 OR 5 NURSERIES, AND USES 2 OR 3 SOD COMPANIES AND 3 OR 4 DIFFERENT TREE MOVING COMPANIES. HE STATES THAT PRUDENTIAL HIRED PEOPLE TO COME IN AND DO THE WORK AT MRS. BURT'S PROPERTY. EXCEL UNLIMITED HAS NO EMPLOYEES. ATTORNEY TORPY ASKED MR. BARBER WHAT DOES EXCEL DO. MR. BARBER STATED IT LEASES HIS PERSONAL VEHICLES TO PRUDENTIAL BUILDING COMPANY. HE STATED HIS ADDRESS FOR EXCEL UNLIMITED IS A P.O. BOX IN SEBASTIAN. MR. BARBER STATED THAT THE WORK ORDER SHOWING EXCEL UNLIMITED AS DOING THE WORK AT MRS. BURT'S RESIDENCE iS FALSE. THE CITY'S RECOMMENDATION: FINDINGS OF FACT: THAT THE RESPONDENT HAD NO CITY OCCUPATIONAL LICENSE FOR OPERATING A BUSINESS LOCATED AT 10749 S. U.S. #1, SEBASTIAN, FL, PARCEL # 17-31-39-00000- 3000-00003.0. 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