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HomeMy WebLinkAbout07231998 CITY OF SEBASTIAN CODE ENFORCEMENT BOARD MINUTES OF SPECIAL MEETING JULY 23, 1998 Chmn. Generazio called the meeting to order at 3:00 pm. The Pledge of Allegiance was said. Chmn. Generazio announced that this meeting is being recorded and we are being voice telecast live on Channel 35. ROLL CALL: PRESENT: Chron. Generazio VC Neglia Mr. Schofield Ms. Memtt (a) Mr. Cavallo Mr. Connelly Mr. Flescher EXCUSED ABSENCE: Mr. Cosco ALSO PRESENT: Tracy Hass, Interim City Planner Tim Zelinsky, Code Enforcement Officer George Bonacci, Building Official Ann Brack, Recording Secretary Kevin MacWilliam, City Attorney Rene VanDeVoorde, Board Attorney ANNOUNCEMENTS: Chmn. Generazio announced that Mr. Cosco is excused from this meeting, and Ms. Merritt will voting in his place. OLD BUSINESS: A. Case g97-13403 - Dennis Carmody - 100 S. Wimbrow - Direction from Attorneys (Chmn. Generazio stated "Case #97-13430" when referring to this case.) Chnm. Generazio then noted that the reason for this meeting is that there was an order given for Mr. Carmody 'to be served a notice of violation on May 20, 1998, and he was not served. He indicated that this Board is trying to find out why he was not served. Attorney Kevin MacWilliam indicated that his attempt to contact City Attorney Valerie Settles was not accomplished, that she may still be in California, and has not returned any of his phone calls. He reviewed the minutes and listened to the recorded tape of the May 20th meeting. (He also noted i CODE ENFORCEMENT BOARD MINUTES OF SPECIAL MEETING OF JULY 23, 1998 that he had not listened to the December 17, 1997 meeting tape, nor checked the minutes of that meeting, nor did he attend that meeting.) However, he noted several items that he felt were cause for concern in the May 20th meeting records. He then indicated that the May 20th meeting was for a repeat violation, and listed three pieces of evidence presented by the staff at this meeting: 1. Information presented by Mr. Bonacci on serving the notice to Mr. Carmody. 2. Mr. Frame's testimony about checking the Fellsmere warehouse for a place of business for Mr. Carmody. 3. Mr. Zelinsky's testimony on events that took place approximately three (3) years ago. Attorney MacWilliam noted that other than the above issues, he could not see any other evidence the Mr. Carmody might be operating a business out of his home. He also indicated that if a Board member testifies in a violation case, that Board member should not then vote on the issue. He referred to the Code in reference to "stepping down" by a Board member. Mr. Neglia commented that in asking to step down, he was told on May 20, that if he had no monetary gain, he would not have to step down. Chron. Generazio indicated that, on this issue, he had asked Attorney Settles about this and her response was that if there was no monetary gain, the Board member would not have to step down. Mr. Flescher at this time, referred to an accusation by Mr. Carmody which is included in the minutes of the May 20, 1998 meeting. Attorney MacWilliam then noted that his purpose in reviewing this case was to try to get some idea of why the violation order was put on hold by Attorney Settles, since he had been unable to contact her. Mr. Neglia noted that he lives on the same block as Mr. Carmody and cannot avoid seeing the stretch limousine, just in everyday traffic movement. That was why he asked if he should step down. '~ Attorney VanDeVoorde asked Mr. Neglia if, at the May 20th meexing, he was capable of giving a fair and unbiased opinion. Mr. Neglia responded "yes". Attorney MacWilliam read from the code - Section 2-191-0 - "No Board member shall vote in any case in which that member has personal knowledge of the facts of the case pending before the board when said personal knowledge, in the opinion of the Board member, will negatively affect the member's ability to render a fair and impartial determination of the case." He discussed this issue further, and thought this issue might have caused some concern on the part of Attorney Settles. There was more discussion on the evidence presented at the May 20th meeting. 2 CODE ENFORCEMENT BOARD MINUTES OF SPECIAL MEEDING OF JULY 23, 1998 Mr. Flescher suggesI~! asking Mr. Zelinsky for a clarif34ng statement. Attorney VanDeVoorde received information that Mr. Carmody was sworn in at 3:13 pm on May 20th' He then noted that Mr. Carmody's comments would be considered evidence. Attorney MacWilliam commented that, had he been the attorney at this hearing, he probably would not have let it proceed without further evidence. Chmn. Generazio summarized this case as follows: As of December 17, (1998), he (Carmody) was found in violation at that time, and we have nothing to show in evidence, in your opinion, that there was anything after that. Attorney MacWilliam responded by noting that the only testimony given on behalf of thc staff was from Mr. Bonacei, and from Mr. Frame who visited (the business address), but there was no indication of anyone affirmatively seeing him operate out of his house since December 17; no pictures; and Mr. Zelinsky's testimony did not indicate when his involvement took place. Chron. Generazio asked if Mr. Zelinsky could be sworn in at this time. Mr. Flescher wanted to ask Attorney MacWilliam a question before Mr. Zelinsky was sworn in. He asked if he and the other Board member stand clear of any conflict in voting for the motion in the previous meeting. Attorney MacWilliam indicated that he had no problem with it. Attorney VanDeVoorde indicated that there is a potential problem with taking evidence at this point if Mr. Carmody was not notified of the hearing. He suggested this Board could review the record, and they can discuss whether there is any reason to proceed based on past action. But, he noted, that if you are going to take additional testimony, and Mr. Carmody is not here, or hasn't been notified, then he or his attorney has no oppommity to cross-examine whoever the witness is, and theoretically, leaves you open to criticism for that. He wasn't saying it couldn't be done, but he cautioned that there is a potential problem in case of an appeal. In response to a request from Mr. Neglia, the secretary noted that, in the minutes of the meeting of July 15, 1998, there is no mention of notification of Mr. Cannody for this meeting (July 23, 1998). At this point, Chnm. Generazio indicated that he did not want to swear in Mr. Zelinsky, now. He proceeded to refer to the minutes of May 20, and testimony given by Mr. Zelinsky. He suggested that on checking, there may not have been enough evidence to bring Mr. Carmody in on a repeat violation. He suggested that the order for a repeat violation be rescinded, but noted that he has been found in violation once, and if it happens again, we could bring him back in. Mr. Counelly offered comments on issues being discussed. Chron. Generazio commented that it is the City's responsibility to prove him (Mr. Carmody) guilty; it is not his responsibility to prove his innocence. And the City is telling us that they don't have CODE ENFORCEMENT BOARD MINUTES OF SPECIAL MEETING OF JULY 23, 1998 enough evidence. Mr. Flescher concurred. Chmn. Generazio noted that the original violation (from December 17t~ meeting) stands, as agreed by the Board and the City Attorney. MOTION by Generazio/Flescher I'd like to make a motion that the ease #98-13403, Dennis Carmody, on repeat violation hearing, that that case be dismissed. Discussion: Chmn. Generazio noted that the reason for his motion to dismiss is because the City does not have sufficient evidence to proceed. Attorney MacWilliam noted that it looked like the evidence that was read into the record which took place prior to December 17, 1997, was accepted as having happened since December 17, 1997, which resulted in an apparent misunderstanding on the part of the Board. He also noted that all parties that testified in this case could be called to re-testify if so desired by the Board. Mr. Neglia suggested that Mr. Carmody be notified of this Board's decision, and noted that if he is ever in repeat violation, he will be coming back before this Board. Roll call: VC Neglia - yes Mr. Cormelly -yes Mr. Fleseher - yes Chnm. Gener~io - yes Mr. Schofield - yes Mr. Cavallo - yes Ms. Men-itt (a) - yes The vote was 7 - 0. Motion carried. Mr. Neglia attempted to make a motion, and because of some confusion on dates, he rescinded the motion and Chron. Generazio reworded it as follows: MOTION by Generazio/Neglia I'd like to make a motion that Mr. Carmody be notified in writing of today's decision to dismiss the May 20m (1998) repeat violation, and also remind her (the secretary) that he was still held liable for the December 17t~ (1998) violation and that, should he be found as a repeat violator, he'll be coming back before the Board. CODE ENFORCEMENT BOARD MINUTES OF SPECIAL MEETING OF JULY 23, 1998 Mr. Connelly - yes Mr. Cavallo - yes VC Neglia - yes Mr. Schofield - yes B. Case ~)8-13145 Compliance Roll call: Chmn. Generazio - yes Mr. Flescher - yes Ms. Merritt (a) - yes - Shannon Cook- 868 Schumann Drive - Verification of Mr. Shannon Cook was not present, and discussion resulted in verifying that this meeting was posted on the bulletin board in the main building at City Hall. Attorney MacWilliam noted that Mr. Cook would not have to be notified for a compliance heating, or if the Board is going to enter a fine, he would not have to be present. Attorney VanDeVoorde asked if there was an enforcement order entered on this, and Chmn. Generazio indicated that this was done on June 17 (1998) Mr. Tim Zelinsky was sworn in by Chron. Generazio at 3:37 pm. Mr. Zelinsky indicated that in checking this site on 6/29/98 at 9:30 am, both vehicles were still in the driveway, and the trash was still on the ground. He returned to this site on 7/1/98 and the vehicle was removed and the trash was gone. He noted that Mr. Cook was given until midnight on 6/28/98 to move the car and get rid of the trash, making him in violation for one day. Chnm. Generazio, with agreement from Attorney VanDeVoorde, notext that Mr. Cook should be notified to be present for a repeat violation heating at the soonest meeting. NEW BUSINESS: None ATTORNEY MATTERS: None CHAIRMAN MATTERS: Chron. Generazio read his letter of resignation, for the record. There was discussion of the Chairmanship issue. MOTION by Connelly/Generazio I move that we accept, with regret, the Chairman's resignation. The vote was 5 - 2. Motion carried. It was determined after discussion, that election of a Chairman and Vice Chairman will take place at a future meeting. CODE ENFORCEMENT BOARD MINUTES OF SPECIAL MEETING OF JULY 23, 1998 MOTION by Connelly/Cavallo I move we adjourn All agreed. Chmn. Generazio adjourned the meeting at 3:44 pm. (7/27/98AB) City of Sebastian 1225 MAiN STREET [] SEBASTIAN, FLORIDA 32958 TELEPHONE (561) 589-5330 [] FAX (561) 589-5570 SEBASTIAN CODE ENFORCEMENT BOARD MINUTES OF MEETING HELD APPROVED AT MEETING HELD ~. ~~~~7~ BO~WOKTH, SECRETARY E. ANN BRACK, RECORDING SECRETARY