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HomeMy Public PortalAbout05 14 13 MinutesMINUTES OF THE FINE ASSESSMENT HEARING HELD BY THE CODE C7 ENFORCEMENT SPECIAL MAGISTRATE OF THE TOWN OF GULF STREAM ON WEDNESDAY, MAY 11, 2013 AT 2:00 P.M. IN THE COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. Special Magistrate Laura Donlon announced that the fine assessment is being heard in relation to Case No. CEl-13 addressing code violations Sections 70-146 and 70-32, of the Town of Gulf Stream Code of Ordinances, at 2520 Avenue Au Soleil, Gulf Stream, Florida, that is owned by Christopher & Shelly O'Hare. Special Magistrate Donlon stated that the prior rules of evidence do not apply however she will not be basing her decision solely on hearsay. She stated prior to today's hearing but after the last hearing, she received the respondent's motion for re -consideration or alternative motion for re- hearing, as to order Special Magistrate dated April 2, 2013. She continued that the Town provided respondent's motion for reconsideration and on previous day she received a reply to the motion for reconsideration. Special Magistrate Donlon explained there was a procedure in the Town's Code for a type of reconsideration, although she has never entertained one. She also stated there was a motion for sanctions against the Town of Gulf Stream for fraud on the Court filed by Mr. O'Hare's Attorney. Town Counsel Randolph stated that Mr. O'Hare did attempt to comply with the Court's order. He C/ continued Town Manager Thrasher met with Mr. O'Hare on the above-mentioned property and what has been done partially addresses what the Court ordered. Town Counsel Randolph agreed that the property looked much better than it did but Town Manager Thrasher will testify that he did not believe that all the plantings were removed from the driveway per the Court's order. Town Counsel Randolph continued that the Town will be seeking compliance with that portion of the order, and the assessment of a fine in the event that it is not met. He further stated that he will take testimony from Town Manager Thrasher in that respect. Town Counsel Randolph continued that the other part of the order stated that it shall be returned to the condition the property was in originally. He displayed a photograph of the way the property looked initially but stated the photograph was taken before Mr. O'Hare moved onto that property. Town Counsel Randolph stated that he was not sure he can identify how the property looked originally. He further stated that the focus today is on the driveway, and the failure to comply by completely removing the landscaping that has been placed in the driveway. At this time, Special Magistrate Donlon swore in the following persons who were planning to testify at this hearing: Town Manager William H. Thrasher, Town Counsel John Randolph, Attorney at Law Louis Roeder III, and Defendant Christopher O'Hare. Co -Counsel John Carter was also in attendance at this hearing. O Code Enforcement 11=nng Town of Gulf stream May 14,'1113 — Page 2 Town Counsel Randolph asked Town Manager Thrasher to introduce himself, for the record. Town Counsel Randolph inquired if Town Manager Thrasher had the opportunity, prior to April 2, 2013, to meet with Mr. O'Hara, at his property, to make a determination regarding the compliance of the order being fulfilled. Town Manager Thrasher responded "Yes". Town Counsel Randolph asked Town Manager Thrasher what he viewed when he visited that property. Town Manager Thrasher stated that there had been modifications with regard to the landscaping in front of the home which was different from the condition it was in prior to the last hearing. He displayed photographs that were taken at that time. Town Counsel Randolph displayed the photographs to Mr. O'Hare, and inquired from him if these photographs were accurate photographs of how the property looks at the present time, subsequent to Mr. O'Hare having made modifications to his property. Town Counsel Randolph presented these photographs to Magistrate Donlon to compare them with the earlier photographs, as to what had C existed at the time. He continued that he had a letter attached to the earlier photographs from Martin Minor dated November 7, 2012, regarding the property. Magistrate Donlon reported that she now has the fust four (4) photographs which will be Town of Gulf Stream Number One (1) and the Marty Minor memo will be Number Two (2), a total of seven (7) pages. Town Counsel Randolph showed Town Manager Thrasher Special Magistrate's Order dated April 2, 2013, which was not in evidence, and asked him to read paragraph two (2) of that Order. Town Manager Thrasher read "Respondent should comply with Section 70-146 and 70-32 of the Code of Ordinances, of the Town of Gulf Stream, on or before the 20`s day of April 2013, by removing the plantings in the driveway and other areas that block the view of the home and return it to its previous existing condition". Town Counsel Randolph stated that the hearing date was extended. He questioned Town Manager Thrasher regarding his visit to the property on or before April 20`s, 2013, to check for compliance, and if the compliance was fully met. i \ Town Manager Thrasher responded he did visit on that date and that attempts have been made but v not fully complied with. He further said that there were still plantings in the driveway cuts, some Code Enforcement Hearing Town of Gulf Stream May 14, 2013 — Page 3 removed and something smaller put in place, but there were still plantings in the driveway cuts. Town Manager Thrasher demonstrated on a photograph of the driveway where the plantings were. Town Counsel Randolph asked if Town Manager Thrasher still considered the plantings to continue to be in violation of the Special Magistrate's Order. Town Manager Thrasher answered "Yes". Town Counsel Randolph requested Town Manager Thrasher to demonstrate to the Court from the photographs what would still be in non-compliance. Town Manager Thrasher described the newer plantings in the driveway cuts. Town Counsel Randolph inquired if the plantings on the north side of the house were still in non- compliance. He also questioned if an applicant would go before the AR&P Board for this Town Manager Thrasher stated that he would not have approved that amount of plantings to go before the AR&P Board. Town Counsel Randolph asked Town Manager Thrasher what the Town was seeking this day, in regard to a settlement. Town Manager Thrasher replied that the plantings presently located in the two (2) driveway cuts be removed and that the driveway cuts be repaired to their original state. Town Counsel Randolph inquired if the Town was seeking a penalty for non-compliance until that condition is met, and if the amount of that penalty was $250.00 per day. Town Manager Thrasher responded "Yes" to both questions. Town Counsel Randolph said in summary there were no further witnesses, and that the Town's position is focusing on the open front yard aspect of this, as opposed to the full yard being in it's original condition. He continued that Mr. O'Hare has come a long way towards compliance in this order but that he has not complied fully with the order which specifically required that the plantings in the driveway be removed. Town Counsel Randolph asked that there be a penalty imposed for the $250 per day until compliance is met. Code Enforcement Hearing Town of Gulf Stream May 14, 2013 — Page 4 Attorney Roeder had Town Manager Thrasher read the same paragraph as he did earlier, starting with 'By removing". Mr. Roeder discussed the fact that his client was found in non-compliance because he did not totally remove the driveway plantings. Town Manager Thrasher repeated that there were still plantings in the driveway cuts and when asked if they were blocking the home, Town Manager Thrasher responded "No". Attorney Roeder repeated the section of the paragraph that stated "remove the plants blocking the view of the home" and he reiterated that even though Town Manager Thrasher said no to the above statement, he is still finding his client in non-compliance. Town Manager Thrasher stated the order is specific "Remove the driveway cuts". Attomy Roeder discussed further the paragraph and stated that Town Counsel Randolph testified that the Town could not present the evidence, as to the property's previous condition. Town Manager Thrasher stated he had a photograph of the home prior to Mr. O'Hare's ownership, but he could not state when the plantings were placed. Attorney Roeder handed further photographs to Special Magistrate Donlon and to Town Counsel Randolph. Special Magistrate Donlon stated that there were three (3) pages of photographs she received at this time, and will mark them as Respondent's Number One (1). Attorney Roeder displayed the photographs to Town Manager Thrasher and asked for his impression. Town Manager Thrasher stated it appears to be before and after photos of the home located at 2520 Avenue Au Soleil, Gulf Stream, and the Court date on the photos was March 21"on all three (3) sets of photographs. He continued that the after date was April 18`h on all three (3) sets. Attorney Roeder reported for the record that March 21" was the date of the Code Enforcement Hearing and April 18'h was the date before the date of compliance in the Special Magistrate's Court. He asked Town Manager Thrasher if his statement was correct to which Town Manager Thrashes responded "Yes". Attorney Roeder continued by asking having seen the house before and after the changes by Mr. O'Hare and your meeting on April 19'h, do the afore -mentioned photographs accurately reflect condition of the house at both those times? C Code Enforcemem I leering Town of Gulf Stream May 14, 2013 — Page 5 Town Manager Thrasher asked for a repeat of that last question from Attorney Roeder. Town Manager Thrasher then stated "At the present state, the answer is Yes". Attorney Roeder pointed out to Special Magistrate Donlon that you can very clearly see the home, and inquired from Town Manager Thrasher if he could see the door in the before photographs. Town Manager Thrasher responded he could see "part of the home, not the entire home". Town Counsel Randolph interjected that Town Manager Thrasher was pretty clear. Special Magistrate Donlon stated that Counsel should direct any objections to her to avoid any issues. Attorney Roeder asked Town Manager Thrasher whether he could see the front door of the house on the various photographs and again Town Manager Thrasher repeated he could not see the entire house. Cl Town Counsel Randolph made an objection and stated that the photographs speak for themselves as to what can be seen. He further commented that he did not see the purpose of this continuous line of testimony. Attorney Roeder further discussed the clarification of Town Manager Thrasher's testimony from March 21, 2013. Special Magistrate Donlon told Attorney Roeder to "move on", as she has heard the response several times already. Town Counsel Randolph made another objection for the record stating that they were not at this hearing to retry the evidence that existed on March 21, 2013, as there was a record of that meeting. He continued that they were not here to retry that case but only here to make a determination as to whether or not they are in compliance with the order and whether or not there should be a fine assessed. Attorney Carter introduced himself to Special Magistrate Donlon, as Co -Counsel for the O'Hare's, and inquired if that was a statement from the bench, or was that an objection, or what was that statement. Code Enforcemen, Hearing Town of Gulf Stream May 14, 2013 — Page 6 Special Magistrate Donlon responded that it was an objection to any evidence that tends to retry the violation. She continued that they were there for a fine assessment hearing. Special Magistrate Donlon said that they were also there to determine whether or not there was compliance, that if compliance was not met, if there was gravity of the violation, if there are attempts to comply, and make a determination with respect to the client. Co -Counsel Carter stated it was not clear to him but Special Magistrate Donlon said it was very clear to her. Attorney Roeder inquired from Town Manager Thrasher if on April 1' after he inspected the home whether Mr. O'Hare asked him if the house met compliance and Town Manager Thrasher said he did ask, and Town Manager Thrasher responded to Mr. O'Hare "No", because he did not comply totally with the order. Town Counsel Randolph followed up with reading paragraph 2, Section 70-146 of the order, which states "They should comply by removing the plantings in the driveway and other areas that block the view of the home and return it to the previously existing condition". Town Counsel Randolph inquired whether Town Manager Thrasher knew the previous condition of the driveway. Attorney Roeder interjected stating that this information was not placed into evidence at the hearing on March 21", and he was attempting to do that this day. He repeated the fact that there was not even a mention of a requirement regarding the previous condition of home, until Town Counsel Randolph's closing statement on March 21". Town Counsel Randolph replied that he felt that Attorney Roeder was trying to argue his motion for reconsideration. Attorney Roeder requested to file an objection. Special Magistrate Donlon asked for the order to be read again. Town Counsel Randolph read paragraph 2 of the Magistrates' Order. He asked Town Manager Thrasher if he was aware of the previous existing condition relating to the plants in the driveway cuts, and what was in the driveway. Town Manager Thrasher answered "I am aware, and there were no plantings in the driveway cuts". GMr. O'Hare introduced himself. C Cade Enforcement hearing Town of Gulf stream May 142013—Page 7 Attorney Roeder asked Mr. O'Hare what he had done to his home, after the March 21" hearing. Mr. O'Hare replied that he tried to comply with the Magistrate's Order by making the house visible from the street. Attorney Roeder inquired from Mr. O'Hare if, after meeting with Town Manager Thrasher, did he ask if he was in compliance. Mr. O'Hare responded that Town Manager Thrasher said no that he was not in compliance according to the photograph which Mr. O'Hare researched as being in May 2011. Attorney Roeder also inquired if Town Manager Thrasher mentioned removing plants from the driveway. Mr. O'Hare stated nothing was discussed about the driveway. Town Counsel Randolph stated he had no questions. Cl Special Magistrate Donlon asked for closing statements. Town Counsel Randolph stated in dosing the Town was doing a favor to the property owner by not requiring the whole yard to come into compliance with conditions that existed prior to the order. He continued that the Town has the right, pursuant to the terms of the order, to require the landscaping be returned to the previously existing condition which existed when Mr. O'Hare purchased the property. Town Counsel Randolph further stated that the photograph displayed by Mr. O'Hare showed no landscaping that existed on the sides of the property. Town Counsel Randolph continued that the Town wanted to concentrate on the plantings in the driveway and other areas that block the view of the home which could be the other areas on the side that blocked the front lawn and return it to the previously existing condition. He acknowledged that Mr. O'Hare has made some attempts at compliance. Town Counsel Randolph repeated that there has not been full compliance to that portion of the order that states "To remove the plantings in the driveway and the other areas that block the view of the home, and return it to the previously existing condition". He stated that Town Manager Thrasher remembered the previous condition prior to the driveway being cut and plantings being put in. Town Counsel Randolph reiterated that the Town is seeking full compliance with that portion of the order which is blocking the view of the home. He also reported that Attorney Roeder did not go before the Town's ARPB to get authority to do these plantings. Town Counsel Randolph continued the Town is seeking compliance with the order, and Code Enfo¢ement Haring Town of Gulf St Mav 14, 2DU — Page 8 if there is a refusal to comply, the $250 per day fine be instituted from this day until full compliance with Special Magistrate's orders. Attorney Roeder, in closing, stated he felt that they were arguing the case of February 21" all over again. He discussed opposing arguments. He addressed the fact that the front door was viewable from the street Attorney Roeder commented on the fact that Mr. O'Hare did not have a permit and referred to Section 4, conclusions law, where it states the respondent was not cited for not obtaining a permit He continued that Code Violation Section 58-138 was dismissed and stated the order wanted the Respondent to comply by removing the plantings in the driveway and other areas that blocked the view of the home. Attorney Roeder repeated that Mr. O'Hare greatly reduced the amount of plantings so as they really do not block the view of the home and returned it to the previous existing condition. He also stated he had not heard any evidence of "retum to previous existing condition", and also a need for a permit, until this meeting this day. Attorney Roeder further stated that Mr. O'Hare made a great attempt at making the home look more beautiful from the street He again discussed Town Manager Thrasher's inspection of the property. Attorney Roeder repeated that Mr. O'Hare has met the requirements of Sections 70-146 and 70-32 of Town of Gulf Stream Code of Ordinances. He referred to the photograph not put into evidence on March 21", but C! yet still found Mr. O'Hare not in compliance. Attorney Roeder stated they were blindsided and discussed the meaning of open front lawn. He added for the above reasons he respectfully asks that the Special Magistrate find Mr. O'Hare in compliance and issue no fine. Special Magistrate Donlon stated at 2:40 P.M., before making a ruling, there would be a 10-15 minute recess and asked Town Clerk Taylor for the Town of Gulf Stream Code of Ordinances Sections 70-146 and 70-31. Special Magistrate Donlon continued the hearing at 2:56 P.M. She continued by saying that with the evidence she heard this day, she did appreciate the significant efforts of the respondent to try to come into compliance but made mention of the plantings still in the driveway which is a violation. Special Magistrate Donlon ordered a fine of $100 per day beginning this day until the property is in compliance. She adjourned the meeting at 2:59 P.M. Sandra Fein Recording Secretary Cl L