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HomeMy WebLinkAbout01132010City Council Present: Mayor Richard H. Gillmor Vice -Mayor Jim Hill Council Member Andrea Coy Council Member Don Wright None. CIY F SOW HOME OF PELICAN ISLAND SEBASTIAN CITY COUNCIL MINUTES REGULAR MEETING WEDNESDAY, JANUARY 13, 2010 6:30 P.M. CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA 1. Mayor Gillmor called the Regular Meeting to order at 6:30 p.m. 2. Invocation was given by Pastor Seth Goldsmith, Coastal Community Church. 3. The Pledge of Allegiance was recited. 4. ROLL CALL City Council Absent: Council Member Eugene Wolff (excused) Staff Present: City Manager, Al Minner City Attorney, Robert Ginsburg City Clerk, Sally Maio Records Program Manager, Donna Cyr Airport Director, Joseph Griffin Administrative Services Director, Debra Krueger Growth Management Director, Rebecca Grohall Finance Director, Ken Killgore Parks Supervisor, Chris McCarthy Police Chief, Michelle Morris Police Captain, Mike Beyers Senior MIS Systems Analyst, Barbara Brooke -Reese 5. AGENDA MODIFICATIONS Modifications and additions require unanimous vote of City Council members Regular City Council Meeting January 13, 2010 Page Two 6. PROCLAMATIONS, AWARDS, BRIEF ANNOUNCEMENTS Presentations of proclamations, certificates and awards, and brief timely announcements by Council and Staff. No public input or action under this heading. 10.001 A. Certificate of Appreciation to Hank Buchanan for Planning and Zoning Commission Service Mayor Gillmor read the certificate, however, Mr. Buchanan was unable to attend and the certificate will be provided to him. 10.016 C. Proclamation Sebastian River Area Chamber of Commerce 10 Anniversary of Concerts in Riverview Park Mayor Gillmor read and presented the proclamation to Beth Mitchell, Executive Director of the Sebastian River Area Chamber of Commerce. Ms. Mitchell thanked the City and staff members for their assistance and urged public attendance at the concerts which start Friday in Riverview Park. 10.002 B. Sebastian Clambake Foundation Beneficiary Presentations Anjani Cirillo, President of the Clambake Foundation Board, along with Board members Dot Judah, Nancy Veidt and Rich Stringer thanked all the volunteers who participated in the event and presented checks to four of the six beneficiaries (the VFW and By the River had already been presented with their checks) of the Clambake Festival proceeds, as follows: Halo Animal Rescue $10,250 Sebastian Soccer Association $10,250 Sebastian Boys and Girls Club $10,250 Sebastian Sharks Youth Football and Cheerleaders $10,250 Ms. Cirillo reminded people to go to sebastianclambake.org for 2010 event beneficiary information and forms. Brief Announcements Mr. Hill announced that Mayor Gillmor has been appointed the new Chairman of Indian River County Metropolitan Planning Organization (MPO). Mayor Gillmor announced upcoming events in Riverview Park, including the concert in the park this Friday, Art Show on Saturday, January 16 and the Fine Art and Music Festival on January 23 and 24. 2 Regular City Council Meeting January 13, 2010 Page Three 7. CONSENT AGENDA All items on the consent agenda are considered routine and will be enacted by one motion. There will be no separate discussion of consent agenda items unless a member City Council so requests; in which event, the item will be removed and acted upon separately. If a member of the public wishes to provide input on a consent agenda item, he/she should request a Council Member to remove the item for discussion prior to start of the meeting or by raising his/her hand to be recognized. 1 -16 A. Approve Regular Meeting Minutes 12/9/09 17 -25 B. Approve Regular Meeting Minutes 12/16/09 09.125 C. Approve H D Construction Change Order #6 in the Amount of $28,447.25 for 27 -38 Airport Access Road East (Airport Transmittal, Change Order) 10.015 D. Authorize Mayor to Execute Submerged Lands Lease with Florida Department of 39 -54 Environmental Protection for Yacht Club Ramp and Piers (City Clerk Transmittal, Submerged Lands Lease w /Attachments) MOTION by Mr. Hill and SECOND by Mr. Wright to approve (consent agenda items A -D). Result of the roll call: Ayes: Gillmor, Hill, Coy, Wright Nays: None Passed 4 -0 8. COMMITTEE REPORTS APPOINTMENTS City committee reports and Council Member regional committee reports. No public input or action except for City committee member nominations and appointments under this heading. Mayor Gillmor reported on meetings with the Mayors in Indian River County which started in Vero Beach in December, and further explained an effort underway by them to establish a small business recruitment and training process utilizing vacant office space in the cities to provide assistance to individuals with ideas for small business start up. He said the next Mayors' meeting will take place in Fellsmere on January 1 1 th Mr. Hill suggested workshopping this in the near future. Mr. Wright briefly reported on the Indian River County Commission's approval of the purchase of land recommended by the Land Acquisition Advisory Committee in the North County for the Greenway project. He also brought to Council's attention information Charlie Wilson had presented to the County Commission regarding the cost differential for Vero Beach Utilities costs and FPL costs for Indian River County and local schools that is paid out in part by Sebastian taxpayer funds and suggested perhaps we should obtain further information on this. Other members of Council said they would like to get further clarification on this and asked staff to look into it. 10.003 A. Construction Board 55-66 (City Clerk Transmittal, Code, Applications, Ad) i. Interview Unless Waived, and Submit Nominations for the Vacant Regular Member, Plumber Position to Expire 9/30/2012 ii. Interview Unless Waived, and Submit Nominations for the Vacant Alternate Member, Contractor Position to Expire 9/30/2010 City Council interviewed David Reyes. Mr. Redden was not in attendance. 3 Regular City Council Meeting January 13, 2010 Page Four MOTION by Mr. Hill to appoint Mr. Reyes to the Regular plumber position and Mr. Redden to the alternate contractor position. Since there were two applicants for the two position and no other nominations, Mr. Reyes and Mr. Redden were automatically appointed as nominated. 10.004 B. Police Pension Board of Trustees 67 -73 (City Clerk Transmittal, F.S.185, Memo, List) i. Appoint Fifth Member to the Board in Accordance with F.S.185 MOTION by Ms. Coy and SECOND by Mr. Wright to confirm the appointment of Debra Krueger as fifth member of Police Pension Board of Trustees carried on a voice vote of 4 -0. 9. PUBLIC HEARINGS 09.150 A. Second Reading and Adoption Hearing of Ordinance No. 0 -09 -14 Roseland 75-88 Road Buffer (Growth Management Transmittal, 0- 09 -14, AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA, AMENDING LAND DEVELOPMENT CODE TO CREATE SECTION 54 -3 -11.11 ROSELAND ROAD BUFFER; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; PROVIDING FOR AN EFFECTIVE DATE. (Press Joumal Ad 12/30/09) Mayor Gillmor opened the hearing at 7:00 pm and the City Attorney read Ordinance No. 0 -09 -14 by title. MOTION by Mr. Hill and SECOND by Mr. Wright to approve Ordinance No. 0- 09 -14. Mayor Gillmor called for public input and there was no response. Result of the roll call: Ayes: Hill, Coy, Wright, Gillmor Nays: None Passed 4 -0 The City Manager advised that now that this language is in place for the buffer, the next two steps will be to correct the references within of the Airport Master Plan and Airport Layout Plan, but first we have to address the Habitat Conservation Plan (HCP) and incidental take issues with Fish and Wildlife. 09.048/10.005 B. Second and Adoption Hearing of Ordinance No. 0 -10 -01 Tax Abatement 89 -95 Program (City Attorney Transmittal, 0- 10 -01) AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA, IMPLEMENTING AN ECONOMIC DEVELOPMENT AD VALOREM TAX EXEMPTION PROGRAM FOR THE CITY OF SEBASTIAN; PROVIDING FOR SEVERABILITY; PROVIDING FOR AN EFFECTIVE DATE AND SUNSET DATE. (Press Joumal Ad 12/30/09) Mayor Gillmor opened the hearing at 7:04 pm and the City Attorney read Ordinance No. 0 -10 -01 by title, and noted a typo on page 1 (circle page 91) which should read "direct or indirect MOTION by Mr. Wright and SECOND by Mr. Gillmor to approve Ordinance No. 0- 10 -01. 4 Regular City Council Meeting January 13, 2010 Page Five Mayor Gillmor called for public input and there was no response. Result of the roll call: Ayes: Wright, Gillmor, Hill, Coy Nays: None Passed 4 -0 10. UNFINISHED BUSINESS 09.156 A. Consider Release of Lien on 573 Michael Street Code Enforcement Case 97 -100 2005 -35822 (City Manager Transmittal, Notice, Calculation) The City Attorney advised City Council that in light of the fact that the lien was filed incorrectly by citing "mowing" which was never done, and the fact that the fine of $56,000 imposed for moving a car to the back of the property was a "punishment that doesn't fit the crime he was recommending the applicant pay $1000 now, and $1000 in ninety days and that the property owner obtain a building permit and complete his partially completed structure as was recommended by the Building Official and which the property owner has agreed to. He said this fine will cover the City's costs in this matter. He also advised that future lien issues could be deferred to the Special Magistrate and if Council was so inclined that process could be done by adoption of an ordinance, stating Florida law provides Council with the authority to release or make adjustments as it sees fit. He cited a list prepared by the Clerk showing the various actions of Council on lien reduction and waiver requests and said he would provide them with a copy. Ms. Coy asked, if they give authority to the Special Magistrate, where would someone appeal his decision, and the City Attorney replied to the Circuit Court, or in an ordinance it could require it to come to Council. Mr. Wright recommended the lien not be released until the construction is completed and this should be imposed as a condition once a reasonable time is established. Steven Lulich, Attorney representing Mr. Linscott, provided a Memorandum of Understanding (see attached) and cited another case in which a property was not notified of a hearing at which a fine became a lien as is the case in this issue, and that there is currently no issue on the table as to the construction of the building. MOTION by Mr. Hill and SECOND by Mayor Gillmor to approve staff recommendation. (City Attorney recommendation for $1000 now, and $1000 in ninety days and that the applicant will pull permits within 30 days and then complete construction) Mayor Gillmor called for public input. Damien Gilliams urged Council to use caution in setting precedence and said they have been too lenient. Mayor Gillmor questioned the method to adopt an ordinance to assign this to the Special Magistrate, and Ms. Coy asked that this be agendized and discussed further before staff is directed to come back with an ordinance. 5 Regular City Council Meeting January 13, 2010 Page Six Ms. Coy then said she would like to reconsider the motion, stating it was not unreasonable to set a standard for a time to complete the construction, citing that Council has been very generous. Mr. Hill said there are codes in place to ensure that once a permit is pulled the construction must be completed in a certain amount of time. Mr. Hill withdrew his motion. MOTION by Ms. Coy and SECOND by Mayor Gillmor to approve staff recommendation with the garage to be completed by January 1, 2011. Result of the roll call: Ayes: Wright, Gillmor, Hill, Coy Nays: None Passed 4 -0 09.157/10.006 B. Resolution No. R -10 -01 Airport Park Funding (City Manager Transmittal, 101 -104 Schematics) A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, FUNDING THE DEVELOPMENT OF AN AIRPORT PARK THROUGH A GRANT FROM THE RECREATIONAL IMPACT FEE FUND; PROVIDING FOR CONFLICT; PROVIDING FOR EFFECTIVE DATE. The City Manager gave a brief update on the plans and intention to fund it with a grant from recreation impact fees. The City Attorney read Resolution No. R -10 -01 by title. MOTION by Ms. Coy and SECOND by Mr. Wright to approve staff recommendation. Mr. Hill questioned why the cost had gone from $5,000 at their last discussion to $12,500. The City Manager said the $5,000 was for play equipment and now there is a fence, concrete and a pavilion. Mr. Hill said he was in favor of the park but not the substantial cost difference and said we need to be careful that we are talking real numbers when we cite anticipated costs for City projects. Mr. Wright agreed with Mr. Hill and questioned the inclusion of a telescope viewer. The City Manager said Council asked for amenities staff had not considered, and that staff does take seriously what it brings to Council, reiterating that the telescope viewer was suggested by the Mayor. Ms. Coy said she could withdraw her motion and remove that for now if Council wished, but Mr. Hill said he was not asking her to do this. 6 Regular City Council Meeting January 13, 2010 Page Seven Damien Gilliams said he thought this was a great idea and $12,000 was not enough, suggesting picnic tables and benches so people can come out and sit with vending machines that could help fund the park. He commended the City Manager and Airport Director for bringing this to Council. Result of the roll call: Ayes: Gillmor, Hill, Coy, Wright Nays: None Passed 4 -0 10.007 C. Indian River County Firehouse #9 Land Swap Proposal (City Manager 105 -107 Transmittal, Park Schematics) The City Manager said he was simply seeking direction on the possibility of a land swap between the City and County for the current firehouse #9 property on US 1 and property on the City Hall campus off of Gibson Street. Ms. Coy said she was interested but not in giving up the property next door. Mr. Hill said he thought this campus was an excellent location for a fire station. Mr. Wright said he did not see the US 1 property as meaningful for the City and would rather the County sell it for a taxable use. Mr. Hill said the City could sell it. Mr. Wright said we need to be doing soil testing and the best use would be commercial. Mayor Gillmor noted it was only .3 acres, and said if we swap and commit the old chamber space we are in limbo if they do not set a time certain for construction. Damien Gilliams said he did not think this was a good idea. Mr. Hill said again it was worth having the City Manager look into it and there was no objection. Mayor Gillmor called recess at 7:48 pm and reconvened the meeting at 7:59 p.m. The four members of Council returned. 11. PUBLIC INPUT Public input procedures are on the back of the agenda. A sheet is available on a table at the back of the chambers for people to sign prior to meetings. Signing is not mandatory and individuals who raise their hands will be recognized. If the Council fails to reach this item during a meeting, only those people who have signed prior to the meeting will have their item carried forward to the next regular meeting. Trish Ohrt, Island Style Hair Design, US 1, addressed Council on a feather flag she had flown to draw attention to her shop and had removed at the direction of Code Enforcement. She said in these hard economic times, it helped draw attention to her business which supports eight people. She said the sandwich board signs recently allowed do not seem to attract people and said she would appreciate whatever Council could do for small businesses such as allowing other types of signs like the feather flag. Ms. Coy said she would like to revisit the ordinance recently adopted. Discussion took place on the sandwich board sign adopted previously and whether it was codified in the LDC or was only temporary. Mr. Wright asked if businesses could temporarily be allowed these types of signs while Council deliberates on the issue. The City Manager asked Council to allow him to handle the matter administratively and report back to them. The City Clerk reviewed the record and said it was 0 -08 -07 and was temporary. 7 Regular City Council Meeting January 13, 2010 Page Eight Damien Gilliams, said the City needs to take care of businesses that are here so they don't have to come here, and though he understands there are codes, said let's do it tonight. Seth Goldsmith, Pastor of Coastal Community Church, thanked the City for allowing use of Riverview Park on Christmas Eve for a very successful event, and Mayor Gilimor for his voice and guitar playing, and said they are already planning for next year. Jim Sunnycalb, also thanked Council and described the event which brought in hundreds of people to gather on Christmas Eve and hoped for a bigger and better event next year. 12. NEW BUSINESS 10.008 A. Natural Resources Board Presentation and Request for Consideration of 109 Adoption of Spoil Island in Cooperation w/ DEP (Board Transmittal) Ken Grudens, Natural Resources Board, gave a power point presentation prepared by Environmental Planner, Margie Reynolds, on a proposed Adopt -An- Island program, citing the Board's ability to adopt either island 1 or 9B under the auspices of and funded by the Florida Inland Navigation District, to install picnic areas and provide transportation and materials to maintain the island on a quarterly basis. Ms. Reynolds noted there would be no cost to the City. City Council thanked them for their presentation and gave their consensus to proceed. 10.009 B. Natural Resources Board Presentation and Request for Establishment of Letter 111 -116 Boxing Project (Board Transmittal, Information) Robin Graves, Chairman, Natural Resources Board gave a presentation on Letterboxing, a family treasure hunting program which would bring people to Sebastian and introduce them to the environment, which could kick off on Earth Day and tie in with the County Greenway project. Mr. Hill said this was something his family had done and his children love it. City Council gave its consensus for the Board to proceed. 10.010 C. Approve 2010 Pelican Island Wildlife Festival at Riverview Park on March 13, 117 -121 2010 Consider Sale of Beer and Wine, Use of Old Beall's Parking Lot, and Use of 1 -95 Billboards for Advertisement Approve Closinq of Sebastian Blvd. from iust past Hess Station East to Indian River Dr. and Indian River Dr. from Coolidge St. South to Southern End of South Parking Area from 6 a.m. to 7 p.m. Approve Restricting North Half of Yacht Club Boat Ramp from 10 a.m. to 6 p.m. (Parks Transmittal, Letter) The City Manager said this annual request is under New Business because of their new request for beer and wine sales and use of the 1 -95 billboards to post banners. 8 Regular City Council Meeting January 13, 2010 Page Nine Mr. Hill expressed concern for the banners because of the poor condition of the banners currently on the billboards for the Art and Music Festival which he said look terrible and are an embarrassment to the City because they have blown off and can't be read. Discussion followed as to how they are installed and whether that problem should be alleviated before any other approvals for the banners are approved. In response to Ms. Coy, the City Manager said the City had paid a fee to have them installed, he will talk to the Festival people, and was considering sending City workers out to fix them. All members of Council agreed that no further approvals should be given until this is resolved. MOTION by Mr. Hill and SECOND by Mayor Gillmor to approve the request for the Pelican Island Wildlife Festival minus the billboards. The President of the Pelican Island Preservation Society said they would take out the banner request for now. Result of the roll call: Ayes: Coy, Wright, Gilimor, Hill Nays: None Passed 4 -0 10.011 D. Approve Staff Ranking and Authorize Negotiation and Execution of Agreement 123 -223 for Investment Advisory Services with PFM Asset Management (Administrative Services Transmittal, Minutes, Score Summary, RFQ Response) Finance Director, Ken Killgore gave a brief presentation on the recommendation of the ranking committee to negotiate an agreement with PFM Asset Management for three years and two additional one year extensions, citing their qualifications. Mr. Wright cited their professional presentation and commended Mr. Killgore for obtaining the proposals. MOTION by Ms. Coy and SECOND by Mayor Gilimor to approve staff ranking and authorize negotiation and execution of agreement for investment advisory services with PFM Asset Management. Result of the roll call: Ayes: Wright, Gillmor, Hill, Coy Nays: None Passed 4 -0 9 Regular City Council Meeting January 13, 2010 Page Ten 10.012 E. Approve Staff's Ranking and Authorize Negotiation and Execution of Agreement 225 -258 for Financial Advisory Services with First Southwest Company (Administrative Services Transmittal, Minutes, Score Summary, RFQ Response) Finance Director, Ken Killgore gave a brief presentation on the recommendation of the ranking committee to negotiate an agreement with First Southwest, citing his nine years of service with them and his high regard for their capabilities. Mr. Wright inquired about the "fee of 0.5 indicated on circle page 252 and asked if the City pays that. Ed Stull, Managing Director, First Southwest Company, responded that on a bond there is sometimes an investment contract and they go out and get purchase agreements and that fee is paid to the firm by those parties. MOTION by Mr. Hill and SECOND by Mr. Wright to approve (staff ranking and authorize negotiation and execution of agreement for financial advisory services with First Southwest Company). Result of the roll call: Ayes: Gillmor, Hill, Coy, Wright Nays: None Passed 4 -0 The City Manager discussed review of options for bond refinancing to address needed street improvements and he would bring further information back to Council. 09.072/10.013 F. Consider Deferral of Rent Under LoPresti Airport Lease (Airport Transmittal, 259 -262 Options) The City Manager presented the LoPresti lease deferral options, noting the request is a result of the economic downturn for the general aviation market, noting their sales are down by 50 He said if Council approves this, there will be need for a first amendment to their airport lease. Mayor Gillmor said the fourth option is to say no and said he would like to hear from Mr. LoPresti. Mr. Hill said there are extraordinary times and he did not know of a company not trying to renegotiate, that our largest airport tenant is asking for our help and the worst case scenario is you give him nine months and then he leaves. Mr. Wright said he is seeing lease negotiation constantly and it is important to think of the long term impact, said this is a good opportunity to see that they stay in business, and noted that LoPresti invested their own money into the hangar. The Airport Director said LoPresti spent $42,000 of its own money on green issues the City could not do and another $12,000 for a heater /ac unit. 10 Regular City Council Meeting January 13, 2010 Page Eleven Curt LoPresti read a prepared statement to Council, citing the reasons for the need to ask for a deferral and the importance of their partnership with the City. Mayor Gillmor noted LoPresti had paid 2% to Vero Beach stating that was a real partnership, also noting that in Vero Beach LoPresti had paid for all of its insurance which the Sebastian pays for now. He asked if he had considered furlough days for its staff as the City does. Mr. LoPresti said they have already done that. Mr. Hill said $3,700 doesn't mean a lot to the City but does to a man struggling to keep his business open. Ms. Coy said she does see a partnership with LoPresti, they have been good tenants, the first Saturday is beneficial to the City of Sebastian and she saw this as an opportunity to give him more time and to continue to employ 22 people in the community, said the Fury will be a reality one day and if we treat them as a good partner it will open the door for future negotiations. She said they will do what they can to get back on their feet. MOTION by Mr. Hill and SECOND by Mr. Wright to approve LoPresti requested option 1 nine months no rent, tenth month pay full rent and start repay at $1,000 a month. Damien Gilliams said Council is setting a policy at the airport for other tenants and it is a slippery slope, recommended waiting for the fifth member of Council and bring LoPresti employees in to see their support. He asked if there was any collateral and recommended a postponement to answer questions. Mimi Erskine, LoPresti employee, said staff was not here because she asked them not to come because of early morning work hours. Mayor Gillmor expressed concern for $4,700 per month hit to the City with no collateral. Ms. Coy said if he goes out of business there are $50,000 in improvements to the City. Mr. Wright said we are not waiving our rights to collect, this does not create a huge problem for the enterprise fund and if others come forward they will be looked at on a case -by -case basis. Result of the roll call: Ayes: Hill, Coy, Wright, Nays: Gillmor Passed 3 -1 13. CITY ATTORNEY MATTERS 10.014 A. Report on Circuit Court Transmittal Case No: 2008 -2262 CA25 263 -268 Frank Romeo vs. City of Sebastian (Decision) The City Attorney gave a report on the decision of the Circuit Court to uphold the Board of Adjustment Romeo case. He said this is a good opinion on a land use basis. He said in a month or two he may be coming back to you for further action on this issue. He said this has vindicated the Homeowners Association position. 11 Regular City Council Meeting January 13, 2010 Page Twelve 14. CITY MANAGER MATTERS The City Manager updated Council on the FDOT Barber Street project: January 25 preliminary schedule for public information meeting, next week City staff will begin cutting culverts; advertisement will be done prior to project start; FDOT will set up shop in Sebastian, and February 1 1 th project start date. He noted the project is anticipated to run 256 days and asked for residents to bear with the City on this project. 15. CITY CLERK MATTERS None 16. CITY COUNCIL MATTERS A. Council Member Wolff Absent ATTE B. Council Member Wright Mr. Wright requested that a tax abatement request application and bare bones guidelines be posted on the City website. C. Mayor Gillmor none D. Vice Mayor Hill none E. Council Member Coy Ms. Coy expressed her sorrow to people of Haiti and urged people to give what they can. 17. Being no further business, Mayor Gillmor adjourned the Regular Meeting at 9:42 p.m. Approved at the January 27, 2010 Regular Meeting. Richard Gillmor, Mayor Sally A. Mai MMC City Clerk 044 12 MEMORANDUM OF LAW AND FACTS The City of Sebastian has imposed a lien in the amount of $56,520.06 on real property located at 573 Michael Street, Sebastian, Florida. This lien arose as a result of a purported violation of Section 66- 3.112(b) Code of Ordinance of the city of Sebastian. This proceeding commenced with a Notice of Violation being left at the address by a code enforcement officer on December 12, 2005. The violation was for having "more than one vehicle /vessel per property that is unlicensed /unregistered and must be parked behind the front line of building The Code Enforcement Board mailed a Notice of Violation hearing to the subject property on January 31, 2006 and on February 15, 2006 a Findings of Fact, Conclusions of Law and Order was entered giving the owner seven (7) days to bring the property into compliance. In November of 2006 a Notice of Assessment and Lien was adopted and filed in the Public Records of Indian River County, Florida on December 2, 2006. A fine of $250.00 a day from March 27, 2006 to November 7, 2006 a total of 226 days was imposed in the amount of $56,500.00 plus an additional amount for lien fee and certified mail for a grand total of $56,520.06. This was improperly assessed because of a total failure to comply with the requirements of FS 162.02 requiring proper notice to the property owner. The subject property was purchased October 28, 1996 by Patricia Linscott and Michael Linscott as joint tenants with rights of survivorship. Mrs. Linscott owns an undivided one half interest in the property and has never resided on the property. The City never made any effort to notify her of the purported violations or the hearing regarding same. I fact her name does not appear on any documents drafted by the City in this entire proceeding although she is a vested owner of the property. There was a feeble attempt to notify the other owner, Michael Linocuts by posting a notice on the property and by mailing a certified letter to the subject property address. At no time was he personally served and the return receipt on the certified mail was signed by a person other than him and who is not related to him. Michael Linscott has not resided on the subject property at anytime during these proceedings. The lien imposed should be released as a result of the City's failure to afford the property owner procedural due process. It is undisputed that neither owner of the subject property appeared or was heard regarding the imposition of the fine or the amount of the fine imposed. Florida Statute 162.09(a) states that in determining the amount of the fine to be imposed the code enforcement board must consider (1) the gravity of the violation (2) any actions taken by the violator to correct the violation and (3) any previous violation committed by the violator. It is submitted that the amount of the lien which exceeds the value of the home is unconscionable when the type of violation cited is taken into consideration. The court has ruled that "it is necessary to fill the procedural gaps in [Chapter 62) by the common sense application of basic principles of due process City of Tampa v. Brown 711 S2d 11881 (Fla.2 DCA 1998). See also Michael D. Jones, P.A. v. Seminole County 670 So2nd 95, 96 (Fla. 5th DCA 1996) stating, "[a] lthough [code enforcement] boards can assert a lien against real or personal property, presumably Section 162.09 would be interpreted to permit the presentment of defenses prior to enforcement of any lien. In the instant case not only was no notice ever given to the owners of the property, the lien of $56,520.06 was imposed without ever attempting to provide the Linscotts notice of the meeting at which the propriety of the fines and liens was addressed or any opportunity be heard at the meeting or thereafter. It appears that the code enforcement board did not consider the factors required by Section 162.09(2)(b) in determining the amount of the fine imposed and there was no evidence presented to the board regarding these factors. Procedural due process imposes constraints on governmental decisions that deprive individuals of liberty or property interests County of Pasco v. Riehl 620 So2nd 229, 231 (Fla. 2 DCA 1993). In fact procedural due process requires both fair notice and a real opportunity to be hard at a meaningful time and in a in a meaningful manner. Keys Citizens for Responsible Gov't Inc. v. Fla Keys Aqueduct Auth. 795 So2d 940, 948 (Fla. 2001) In this case not only was there no notice of any stage of the proceedings given to the actual owners of the property but there is a serious erroneous deprivation because the amount of fines imposed and the propriety of the lien depended on factual findings that both Patricia Linscott or Michael Linscott were never given an opportunity to protest. See Massey v. Charlotte County 842 Sold 142 (Fla. 2 DCA 2003) In short, the entire Assessment and Lien should be released on the ground that the owners of the property, Patricia Linscott and Michael Linscott, were not given due process of notice of the initial finding of a violation and further violating due process by imposing a lien on property without further opportunity for them to be heard as to the amount of lien to be imposed. Respectfully submitte Steven Lulich, Esq. LAW OFFICES STEVEN LULICH, P.A. P.O. BOX 781390 SEBABTIAN, FL 32978 -1390 (772) 589 -5500 (772) 589 -8800 (Facsimile) August 25, 2009 City of Sebastian City Manager, Al Minner 1225 Main Street Sebastian, FL 32958 Dear Mr. Minner: Since Stet/ n Lulich, Esq. Re: CS #2005 -35822 SL/nb cc: Client STEVEN LULICH I represent Michael Linscott and his mother, I jatricia Linscott, who own the property located at 573 Michael Street, Sebastian, FL Stevselulioh.aoa Attorney Consultant Since the inception of this case, Patricia has rsided up north and Michael intermittently resided at the residence. I am currently in the process of evicting Mona Lisa Wonder who has been in possession of the premises since the inception of this case. Notices might have been received by Ms.Worider, however, my clients have never received a notice from the City. My clients were told bylMs. Wonder's mother, after eviction proceedings had begun, that they had a problem with the City. Hence my clients would like the opportunity t explain these circumstances in order to have the existing lien removed. LexisNexis® FRANK L MASSEY and STEPHEN W. MASSEY, Petitioners, v. CHARLOTTE COUNTY, FLORIDA, Respondent. Case No. 2D02 -389 COURT OF APPEAL OF FLORIDA, SECOND DISTRICT 842 So. 2d 142; 2003 Fla App. LEXMS 1265; 28 Flat L. Weekly D 407 SUBSEQUENT HISTORY: Released for Publication April 30, 2003. Rehearing denied by Massey v. Charlotte County, 2003 Fla. App. LE.YIS 9765 (Fla. Dist. Ct. App. 2d Dist., Apr. 8, 2003) PRIOR HISTORY: 1] Petition for Writ of Cer- tiorari to the Circuit Court for Charlotte County; Sherra Winesett, Judge. DISPOSITION: Quash the order of the circuit court and remanded. COUNSEL: Warren R. Ross of Wotitzky, Wotitzky, Ross Goldman, P.A., Punta Gorda, for Petitioners. Renee Francis Lee, County Attorney, and Brendan Brad- ley, Deputy County Attorney, Port Charlotte, for Re- spondent. JUDGES: ALTENBERND, Chief Judge. WHATLEY, J., and GREEN, OLIVER L., SENIOR JUDGE, Concur. OPINION BY: ALTENBERND OPINION *143] ALTENBERND, ChiefJudge. Frank I Massey and Stephen W. Massey (the Masseys) seek a petition for writ of certiorari to quash an order of the circuit court acting in its appellate capacity. The circuit court order affirmed an order issued by Char- lotte County's Code Enforcement Board imposing a lien in the amount of 10,240.90 on property owned jointly 1 of 1 DOCUMENT February 7, 2003, Opinion Filed Page 1 by the Masseys. Because the Code Enforcement. Board denied the Masseys procedural due process and the cir- cuit court applied the incorrect law in determining oth- erwise, we grant the petition. See, e.g., Maple Manor, Inc. v. City of Sarasota, 813 So, 2d 204 (Fla. 2d DCA 2002) (granting certiorari because circuit court applied *2] incorrect law in holding that nuisance board pro ceedings provided appropriate due process). Although we do not mandate any specific procedure for the Code Enforcement Board to follow in imposing liens upon property for code violations, when the imposition of a lien requires additional factual findings, due process re- quires some predeprivation or postdeprivation process for the property owner to test the validity of those find ings. On July 5, 2000, the Charlotte County Code En- forcement Board held a hearing at which it found the Masseys in violation of the Charlotte County building code because they failed to obtain appropriate permits before constructing improvements on their property. The Masseys received notice o1 and participated in, the hear- ing. Based upon the hearing, the Board entered an order on July 11, 2000, finding the Masseys in violation of the building code and requiring them to remedy the violation by "applying for and obtaining a permit within 30 days from the date of this hearing and obtaining a final inspec- tion within 6 months from the date of the hearing" *144] or by removing any improvements and restoring the property to its original condition "with a demolition permit. *3] The order further provided: Failure to comply with any of the provisions of this order shall be punished by a fine of 100.00 per day for each day the violation is shown to exist past the specified time for compliance. A fine may become a lien on your property pursuant to Section 162.09, Florida Statutes. On November 13, 2000, a building inspections su- pervisor, Mr. LaPorte, submitted an "affidavit of non compliance" to the Code Enforcement Board, averring that the Masseys had not complied with the order of July 11, 2000, and asking the Code Enforcement Board to fine the Masseys 100.00 per day for a total of 101 days and to assess costs against them of 130.40. The affida- vit stated: "[A] hearing is not necessary for the issuance of this order, and a certified copy of the order imposing fines and costs may be recorded as a lien against the real and personal property owned by the violator." There is no indication in this affidavit that it was served on the Masseys. On January 3, 2001, the Code Enforcement Board met. The minutes ofthe meeting reflect the following: Mr. Bradley explained that the Masseys still have not pulled the proper permits. Mr. *4] Prather motioned to approve the fine as stated in the Affidavit of Non- compliance. The motion was seconded by Mr. Adomatis and was passed unani- mously. The transcript of this meeting similarly reflects that the Code Enforcement Board summarily approved the impo- sition of the fines and a lien based solely upon the pres- entation of the affidavit and without further discussion. Accordingly, on January 4, 2001, the Code Enforcement Board issued an "order imposing penalty /lien" assessing fines and costs against the Masseys totaling 10,240.90 and imposing a lien on all non- exempt real and personal property owned by the Masseys in Charlotte County. The order did not indicate any avenue by which the Masseys could challenge the validity of these fines or the imposi- tion of the lien. It is undisputed that the Masseys did not receive notice or an opportunity to be heard before the entry of this order. There is some indication that prior to the entry of this order, the Masseys had applied for the appropriate permits. 842 So. 2d 142, 2003 Fla. App. LEXIS 1265, 28 Fla. L. Weekly D 407 Page 2 The Masseys sought review of the order imposing the fines and lien in circuit court, arguing that the impo- sition of the fines and lien without notice to them and an opportunity *5] to be heard violated procedural due process. The circuit court affirmed the order. The Masseys now seek a petition for writ of certiorari to quash the circuit court's order. We grant the petition. This case involves our review of a circuit court order entered in its review capacity over a final administrative order. Under these circumstances, this court's certiorari standard of review is Limited to whether procedural due process was accorded and whether the circuit court ap- plied the correct law. Haines City Cnrty. Dev. i. Heggs, 658 So. 2d 523 (Fla. 1995). We conclude that the circuit court applied the incorrect law in rejecting the Masseys' procedural due process arguments. Chapter 162, Florida Statutes (2000), establishes the procedures that code enforcement boards must follow to enforce local building codes and ordinances. Pursuant to that chapter, a code inspector who discovers a violation must notify the violator and give him or her a reasonable time to correct the violation. *145] 162.06(2), Fla, Stat. (2000). If the violation is not timely corrected, the code inspector must notify the code enforcement board. Id. After notice to the *6] property owner, the board must hold a hearing during which it must take testimony under oath from the code inspector and the alleged viola- tor and must make findings and issue an order. 162.07(3), (4), Fla. Stat. (2000). The order "may include a notice that it must be complied with by a specified date and that a fine may be imposed." 162.07(4). The order is then filed in the public records to provide notice to any subsequent purchasers or assigns. Id. If the owner complies with the order, the board must issue an order acknowledging compliance and file it in the public records. Id. If the owner does not comply, the code inspector notifies the board, which "may order the violator to pay a fine in an amount specified in this sec- tion for each day the violation continues past the date set by the enforcement board for compliance." 162.09(1), Fla. Stat. (2000). "If a finding of violation has been made as provided in this part, a hearing shall not be nec- essary for issuance of the order imposing the fine." Id. Although fines cannot exceed 250 per day for a first violation or 500 per day for a repeat violation, there is no cap on the total *7] fine that can be imposed unless the violation is irremediable. ,f 162.09(2)(a). In determining the amount of the fine to be imposed, the code enforcement board must consider (1) the gravity of the violation, (2) any actions taken by the violator to correct the violation, and (3) any previous violations committed by the violator. 162.09(2)(b). Finally, the order imposing the fine may be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon any other real or personal property owned by the violator." 4 162.09(3). 1 Although these considerations apply to the is- suance of a lien order, it Is unclear when these is- sues should be addressed if no hearing is held. Moreover, even though section 162.09(2)(c) per mits a code enforcement board to reduce any fine it imposes, the statute provides no formal proce- dure to request or grant that relief. After the lien is imposed and recorded in the public records, the statute does not expressly *8] provide for any further process before the code enforcement board. In fact, the statute does not specifically require the board to send the violator a copy of the lien order. Although an "aggrieved party" may appeal a final administrative order of the board to the circuit court, that appeal is not a hear- ing de novo but simply an appellate review of the record before the code enforcement board. 162,11, Fla. Stat. (2000). 2 In addition, at least one court has held that a property owner is prohibited from challenging the factual findings of a code enforcement board in subsequent proceedings to foreclose a lien im- posed by the board, because such defenses are properly raised before the board or on appeal, See Kirby v. City of Archer, 790 So. 2d 1214 (Fla. 1st DCA 2001). We have found no case law addressing whether the procedures required by chapter 162 comport with princi- ples of due process, and we are not required to determine in this case whether the statute is *9] facially uncon- stitutional. However, in this context we have previously noted, "It is necessary to fill the procedural gaps in [chapter 162] by the common -sense application of basic principles of due process." City of Tampa v. Brown, 711 So. 2d 1188 (Fla, 2d DCA 1998); see also Michael D. Jones, P.A. a Seminole County, 670 So. 2d 95, 96 (Fla 5th DCA 1996) (stating, although [code enforcement] boards can assert a lien against real or personal property, presumably section 162.09 would be interpreted to per mit the presentment of [*146] defenses prior to en- forcement of any lien In this case, the Code Enforcement Board provided notice and an opportunity to be heard before issuing its preliminary order finding the Masseys in violation of the building code, as required by the statute. Thus, it is clear the Masseys received due process leading up to the entry of the July 11 order finding them in violation of the building code. Thereafter, however, the Code Enforce- ment Board entered the lien order based solely upon the 842 So. 2d 142, 2003 Fla. App. LEXIS 1265, 28 Fla. L. Weekly D 407 Page 3 code inspector's affidavit. The Masseys were not pro- vided notice of the meeting at which the propriety of the fines and lien were addressed *10] or any opportunity to be heard at the meeting or thereafter. The Code En- forcement Board did not consider the factors required by section 162.09(2)(b) in determining the amount of the fine imposed, and indeed there was no evidence pre- sented to the Board regarding those factors. Moreover, the Code Enforcement Board provided no clear opportu- nity for the Masseys to challenge the thcts upon which the lien order was based once it was issued. The question presented, therefore, is whether additional process was due to the Masseys either before or after the Code En— forcement Board ordered the imposition of the fines and lien. Procedural due process imposes constraints on gov- ernmental decisions that deprive individuals of liberty or property interests. County of Pasco v. Kiehl, 620 So. 2d 229, 231 (Fla. 2d DCA 1993). It serves as a vehicle to insure fair treatment through the proper administration of justice where substantive rights are at issue. Keys Citi- zens for Responsible Gov't, Inc. It Fla. Keys Aqueduct Arrth., 795 So. 2d 940, 948 (Fla. 2001) (citing Dep't of Law Enforcement v. Real Prop., 588 So. 2d 957, 960 (Fla. 1991)). Procedural due *11] process requires both fair notice and a real opportunity to be heard "at a meaningful time and in a meaningful manner." Keys Citizens, 795 So. 2d at 948 (citing Mathews v. Eldridge, 424 U.S. 319, 333, 47 L.. Ed. 2d 18, 96 S Ct. 893 (1976)). The specific parameters of the notice and oppor- tunity to be heard required by procedural due process are not evaluated by fixed rules of law, but rather by the re- quirements of the particular proceeding. Keys Citizens, 795 So. 2d at 948 (citing Gilbert v. Hontar, 520 U.S. 924, 138 L. Ed. 2d 120, 117 S. Ct. 1807 (1997)); see also Borden v. Guardianship of Borden Moore, 818 So. 2d 604, 607 (Fla. 5111 DCA 2002). In order to determine what process is constitution ally required, at least three factors are relevant: (1) the private interest that will be affected by the official action; (2) the risk of erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute safeguards; and (3) the government's interests, including the function involved and the fiscal and administrative burdens that the addi- tional or [**12] substitute procedural requirements would entail. Keys Citizens, 795 So. 2d at 948 49; Kiehl, 620 So. 2d 229. Procedural due process does not always require a predeprivation hearing. In some cases, a post deprivation hearing is sufficient. This is particularly so in cases where there has been some initial predeprivation procedure. See Mackey v. Monhym, 443 U.S. 1, 13, 61 L. Ed. 2d 321, 99 S. Ct. 2612 (1979), Here, the Masseys have a compelling interest in re- taining their real and personal property free of undue interference or improper clouds of title. See Real Prop., 588 So. 2d at 964 (stating, "[p]roperty rights are among the basic substantive rights expressly protected by the Florida Constitution Moreover, property rights are particularly sensitive where residential property is at stake. M. As such, "the 147] means by which the state can protect its interests must be narrowly tailored to achieve its objective through the least restrictive alterna- tive when such basic rights are at stake. "Id. The risk of a completely erroneous deprivation in this case is probably low given the process provided to the Masseys *13] prior to the July 11 order finding them in violation of the building code. However, there remains a serious risk of an erroneous deprivation be- cause the amount of fines imposed and the propriety of the lien depended upon factual findings that the Masseys were never given an opportunity to protest. These find- ings involved moderately complex issues, including whether the alleged violation continued, how long it con tinued, and whether there was any reason to reduce the per diem fine imposed in light of attempts by the Masseys to comply. To remedy the risk of improper sei- zure, there must be some type of procedure to allow the property owner to address these new findings. Gf. Rieh), 620 So. 2d 229 (holding statute establishing "dangerous dog" classification violates due process; statute provides no forum for dog owner to raise absolute defense to clas- sification). Finally, although Charlotte County has an interest in protecting the safety and welfare of its citizens by insur- ing compliance with the building code and has an interest in expeditiously enforcing its orders without undue time and expense, there are further procedural safeguards that could be imposed that would 14] not be unduly bur- den some. Given these considerations, we conclude the Masseys were not afforded procedural due process by the 842 So. 2d 142, 2003 Fla. App. LEXIS 1265, 28 Fla. L. Weekly D 407 Page 4 Code Enforcement Board. Cf. Real Prop., 588 So. 2d 957 (concluding that in forfeiture proceedings regarding real property, due process required notice and adversarial hearing on question of probable cause prior to any initial restraint on real property other than lis pendens); State ex rel. Pittman v. Stanfoskl, 562 So. 2d 673 (Fla. 1990) (avoiding any constitutional infirmities in act requiring entry of judgments for delinquent child support by inter- preting act to require opportunity to be heard prior to entry of judgment); see also Baker v Simpson, 773 So. 2d 637 (Fla 5th DC.A 2000) (holding circuit court vio- lated due process by imposing lien on property without further opportunity for owner to be heard, even though owner failed to comply with prior court order to remove property within thirty days). Although this court will not mandate any specific procedure that the Code Enforce- ment Board must follow, that procedure must provide the property owner with notice and an opportunity to be heard concerning *15] any fhctual determination nec- essary to impose a fine or create a lien. 3 For example, the Code Enforcement Board could mail the "order imposing penalty/lien" to the property owner with a notice that the owner could request a hearing to challenge the fine and the resulting lien within twenty days from the date of the order. The notice could explain that the lien order would be recorded after twenty days unless the property owner filed a timely re- quest for hearing. Presumably, the hearing would be limited to a consideration of only those new findings necessary to impose an appropriate fine and create a lien. We quash the order of the circuit court affirming the order of the Code Enforcement Board and remand for further proceedings consistent with this opinion. 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