HomeMy Public PortalAbout07 16 13 MinutesMINUTES OF CODE ENFORCEMENT HEARING HELD BY THE CODE ENFORCEMENT
SPECIAL MAGISTRATE AT 8:00 A.M. ON JULY 16, 2013, IN THE COMMISSION CHAMBERS
COF THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA, THAT WAS
' ORIGINALLY SCHEDULED TO BE HELD ON JUNE 4, 2013.
PLEASE BE ADVISED THAT THE TOWN IS DISMISSING THE CHARGE OF VIOLATION
OF SECTION 66-446. CHARGES OF VIOLATIONS OF SECTIONS 66-141(1) d. & e. AND 70-106
(b) (3) WILL BE HEARD AS ORIGINALLY LISTED.
I. Call to Order:
Special Magistrate Glen Torcivia called the hearing to order at 8:15 A.M. and described the
procedure of order for the record.
II. Case No. CE 2-13. Martin E. O'Boyle, 23 Hidden Harbour Drive, Gulf Stream, Florida 33483
had prohibited colors painted on the north and south sides on the exterior walls of his home
in violation of the following sections of the Gulf Stream Code of Ordinances:
A. Sec. 66-141 (1) d. & e. requires that any change in exterior wall color must have a Level 1
Architectural/Site Plan Review.
B. Sec. 70-106(b) (3) requires exterior paint colors be from those listed as "approved" colors
for Spanish Mediterranean architectural style structures.
Ci Town Counsel Randolph introduced himself and Attorney Robert Gershman introduced himself acting on
behalf of Martin E. O'Boyle, and asked for permission for Mr. O'Boyle's son, Jonathan O'Boyle to participate
with him at this hearing. There were no objections.
Attorney Gershman requested, with regard to the Notice of Agenda's second paragraph stating that the Town
is dismissing the violation of Section 66-446, that Town Counsel Randolph state if it is dismissed with
prejudice, the basis of the dismissal, the reasons for the dismissal and that the Court adjudicate Mr. OBoyle
not guilty of that violation.
Special Magistrate Torcivia stated the violations heard this day are Sections 66-141(1) d. & e. and 70-106(b)
(3).
Town Counsel Randolph responded that the violation of Section 66-446 is dismissed as stated on the
Agenda, and continued that they are dismissed with prejudice.
Attorney Gershman stated that there should something in writing provided to him for Mr. O'Boyle stating
the adjudication of guilt or not guilty, as to the violation.
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Town of Gulf Stream
July 16, 2013 — Page 2
C) Special Magistrate Torcivia stated that Town Counsel Randolph's comments were sufficient.
Town Counsel Randolph reported the sole matters before the Magistrate this day is not about signs, not
about a person's right to speak freely, and not about an abridgement of a person's right to speak. He
continued it is about the right of a municipality or a governmental body to regulate esthetics in the Town
through its zoning code. Town Counsel Randolph stated that is all that this proceeding is about. He
presented photographs to the court of what the Town believes are in violation of their codes.
Special Magistrate Torcivia stated that pictures "Tweedie Dee and Tweedle Dum" will be Exhibit #1, and the
rainbow colors will be Exhibit #2.
Town Counsel Randolph detailed Code 70-106 (b) (3) titled "color" which addresses an approved color list.
He continued to describe the Town's adoption of an approved list of colors and esthetics regulations in the
Town. Town Counsel Randolph stated that the violation in this case is that those colors in Exhibit 1 and 2
are not approved colors under the Town's code. He presented the code to Magistrate Torcivia.
Special Magistrate Torcivia stated that a copy of the code did not need to be introduced into evidence.
Town Counsel Randolph stated that a courtesy letter was given to Mr. O'Boyle to remove the paintings and
he did not comply. He continued that a Notice of Violation was given and it was that notification that comes
O before the court this day. Town Counsel Randolph reported that the revised Agenda should be part of the
record. He discussed and read Sec. 66-141 which requires a Level 1 Site Plan Review before the Town.
Town Counsel Randolph stated that no such application was made before the paintings were placed on the
home.
Special Magistrate Torcivia marked the Notice and Agenda as Exhibit #3.
The Town called Town Clerk Rita Taylor as their first witness, and Special Magistrate Torcivia swore her in.
Town Counsel Randolph questioned Town Clerk Taylor with regard to the description of her duties as
Town Clerk, including acting as the Town Manager in the absence of Town Manager Thrasher. He inquired
regarding the issue of the code violations at 23 Hidden Harbour Drive.
Town Clerk Taylor discussed the anonymous telephone call she received on April 17, 2013 regarding the
paintings. She stated she contacted the Police Department to have someone check the area to verify the
situation. Town Clerk Taylor learned that the painting was in progress at the time and since it was not
completed, it could not be described properly. She continued that when the project was completed, the police
brought her pictures that were taken. Town Clerk Taylor referred to Exhibits #1 and #2 as the pictures. She
continued that she called Town Manager Thrasher who was on vacation and discussed everything with him
i that had transpired. Town Clerk Taylor stated that she checked the chart and the colors being added were
not approved colors pursuant to Code Section 70-106. She continued that there was no record of a permit
application submitted as was provided in Section 66-141 d & e. Town Clerk Taylor discussed the courtesy
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Town of Gulf Stream
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Cletter sent to Mr. O'Boyle, and that he was advised to correct the violation no later than Friday, May 3, 2013
which he did not comply with.
Town Counsel Randolph provided the courtesy letter to the Court as Exhibit #4.
Town Clerk Taylor continued with her testifying stating that when Town Manager Thrasher returned from
his vacation, he prepared and signed the Statement/Notice of Violation and Notice of Hearing, and she
signed the back listing the procedure that is followed.
Town Counsel Randolph provided the Statement/Notice of Violation dated May 14, 2013, as Exhibit #5.
He stated that he had no further questions with Town Clerk Taylor.
Attorney Gershman began his questioning of Town Clerk Taylor stating that he had only one contact with
her up to this hearing. He inquired regarding her qualifications for being Town Clerk and acting Town
Manager.
Town Clerk Taylor related her job experience and duties as a Town Clerk for twenty-three (23) years in the
Town of Gulf Stream.
Attorney Gershman continued with multiple questions regarding her authority when acting as the Town
Manager. He also inquired regarding her knowledge of the definition of the Town of Gulf Stream Code
Enforcement Officer and procedures. Attorney Gershman read the responsibilities and duties.
Town Clerk Taylor stated that she was designated to do those duties when required in the absence of the
Town Manager.
Attorney Gershman inquired regarding the Police Officer's duties as a Code Enforcement Officer.
Town Clerk Taylor stated that no Town of Gulf Stream Police Officer was officially appointed, but they can
be a Code Enforcement Officer.
Attorney Gershman continued his questioning regarding an official Code Enforcement Officer's efforts with
this case. He inquired whether Town Clerk Taylor was familiar with the various code colors which she
replied "Yes". Attorney Gershman asked Town Clerk Taylor with whom she discussed this matter with.
Town Clerk Taylor responded that she has answered questions from various interested persons who have
called the office to ask if there was a code that addressed this situation. After being asked by Attorney
Gershman if she spoke with any specific Town Officers, she replied the Mayor, after the courtesy letter was
sent.
Attorney Gershman inquired whether a violation to a section of the code would be discussed with town's
people or if violation decisions are made by staff.
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Town of Gulf Stream
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Town Clerk Taylor stated that is never decided "outside", but rather it is an administrative decision in Town
Hall. She continued that if there was a violation, they have always cited someone for their violation.
Attorney Gershman discussed an email between Martin Minor and Town Manager Thrasher dated April
2013, regarding not issuing a Violation of Notice because Town Manager Thrasher did not want to.
Town Counsel Randolph interrupted that this issue did not relate to this case.
Attorney Gershman responded that it is related to Sections 66-431 and 70-297. He discussed in detail Mr.
O'Boyle's public statement at a Regular Town Meeting regarding a resident's gate, and said matter having
been tabled for further discussion. Attorney Gershman read an email from Mr. Minor to Town Manager
Thrasher relating to Sections 66-431 and 70-297, which addressed the prohibited construction of buildings
and improvements within 78 ft. of the central line of North Ocean Boulevard, is not consistent with the
design manual.
Town Counsel Randolph interrupted stating that email has nothing to do with the proceedings being held
this day.
Attorney Gershman stated that the real estate signage on the sides of the road is not in compliance with the
Ocode. He continued that as a Real Estate Agent, the Mayor has never cited anyone or initiated anything as an
acting Code Enforcement Officer.
Town Counsel Randolph stated that this was totally irrelevant.
Special Magistrate Torcivia agreed with Town Counsel Randolph and stated they were far off the subject. He
further stated that when this case is resolved and testimonies concluded, there could be a memo submitted
with that argument in writing.
Attorney Gershman inquired if there was ever a Level 1 Review discretion.
Town Clerk Taylor replied "No" unless when matching colors against the approved list, they were a shade
off. She explained in detail that accent colors are not the same as principle building colors, which Mr.
O'Boyle is being cited on.
Attorney Gershman continued questioning Town Clerk Taylor regarding the entire home colors.
Town Counsel Randolph questioned Town Clerk Taylor's conferring with Town Manager Thrasher while
he was on vacation regarding whether or not there was a violation of the code, and her response to sending
out the courtesy letter in his absence. He inquired if that courtesy letter initiated the proceedings which are
before us this day or was it the Notice of Violation signed by Town Manager Thrasher that initiated the
proceedings.
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Town of Gulf Stream
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Attorney Gershman questioned that inquiry. He continued that there was a telephone call from an unknown
person, a report from a Police Officer, and Town Clerk Taylor's courtesy letter.
Special Magistrate Torcivia overruled the objection and asked for Town Counsel Randolph to repeat his
inquiry.
Town Counsel Randolph asked Town Clerk Taylor to read Code Section 2-69 referring to an employee
who may be designated as Code Enforcement Officer "may include but are not limited to". He stated that
Town Manager Thrasher is also the Town Zoning Inspector.
Special Magistrate Torcivia asked for an explanation of the Site Review Plan process.
Town Clerk Taylor described in detail the approved color list and accents.
Town Counsel Randolph also displayed the color code chart explaining that only the colors above the black
line are approved for the body of the house.
Attorney Gershman questioned the variety of colors, and the Clerk's authority to give permission or rejection
for choice of colors.
CTown Clerk Taylor repeated her answers regarding the code's principle and accent color differences and
again stated that the color on the body must fit in the category above the black line on the chart.
Special Magistrate Torcivia inquired regarding the Site Plan Review with regard to color.
Town Clerk Taylor described in detail the Level 1 Site Plan Review process.
Special Magistrate Torcivia labeled the color board as Exhibit #6.
There was a discussion as to excusing witnesses who expected to testify this day and having them return in
two (2) days, on Thursday, July 18, 2013. All agreed.
Town Manager Thrasher was sworn in and detailed his position and dudes according to the Town's code.
He also discussed his position as Zoning Inspector. Town Manager Thrasher agreed with the appointing of
Town Clerk Taylor as Town Manager when he was away from Town Hall. He described in detail his
conversation with Town Clerk Taylor regarding the colors on the structure on 23 Hidden Harbour Drive.
Town Manager Thrasher stated that other than the courtesy letter sent by Town Clerk Taylor, he alone
initiated these proceedings before the Magistrate this day. He explained in detail what he did prior to issuing
�_. the Notice of Violation, beginning with a permit not being applied for prior to significant changes being made
�! to the exterior walls of the building at 23 Hidden Harbour Drive. Town Manager Thrasher continued that
some Level 1 decisions are referred by code to the next level of review which is Level 21 the Architectural
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Town of Gulf Stream
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CReview & Planning Board (ARPB). He stated that the code defines what items fall within a Level 2. Town
Manager Thrasher reported that the ARPB has the authority to make final decision on a Level 2 application.
Town Counsel Randolph inquired if this particular situation met the description in the code of a significant
change.
Town Manager Thrasher responded "Yes", and that he made the determination after reviewing several
color charts, as a procedural event.
Special Magistrate Torcivia requested these three (3) color composites be Exhibit #7, which includes reds,
browns and oranges.
Town Counsel Randolph asked Town Manager Thrasher what his determination was in regard to a
violation when he issued a Violation and Notice of Hearing dated May 14, 2013.
Town Manager Thrasher reported that the painted colors on the structure at 23 Hidden Harbour Drive
were not on the approved and allowable color chart. He read the principle building color list. Town Manager
Thrasher stated that the bright predominate colors were overpowering. He read the meaning of predominate
from the dictionary. He stated he did not confer with any staff when enforcing the code and the violation
Ccontinues to exist this day.
Attorney Gershman stated that this was the first time he and Town Manager Thrasher have spoken with each
other and asked Town Manager Thrasher how he prepared for this hearing.
Town Manager Thrasher reported his preparations for this hearing. He detailed the dates when he was on
vacation away from the office. Town Manager Thrasher stated that he could not say when he viewed the
photographs of the property in question but that Town Clerk Taylor thoroughly explained verbally the
situation that she was dealing with at the time while he was on vacation.
Attorney Gershman inquired as to who the designated Code Enforcement Officer was when Mr. O'Boyle's
issues arose.
Town Manager Thrasher responded "Ms. Taylor, the Town Clerk". He also stated that at that time, the
Town had a part-time Code Enforcement Officer, Police Officer David Ginsberg. Town Manager Thrasher
continued that Police Officer Adam Gorel was the designated Code Enforcement Officer who first went to
Mr. O'Boyle's home to verify the information given to Town Hall.
Attorney Gershman read and discussed the courtesy letter to Mr. O'Boyle regarding the violation to his
home.
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Town of Gulf Stream
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C� Town Manager Thrasher discussed the voluntary compliance process. He stated he had many
conversations with Town Clerk Taylor on a multitude of issues more than once a day while he was on
vacation.
Attorney Gershman continued questioning Town Manager Thrasher regarding the amount of conversations
he had with Town Clerk Taylor regarding what was on Mr. O'Boyle's home from April 27`h through May 6,
2013.
Town Manager Thrasher responded "Two (2) calls".
Town Counsel Randolph interjected stating that this hearing is regarding two (2) violations relating to paint
colors, and not content of the sign. He continued that the witness, Town Manager Thrasher was being
badgered and that he objects.
Town Manager Thrasher described his knowledge of the wording and painting of the signs on April 30,
2013, and that his driving factor was the colors, as it relates to Violation and Notice of Hearing.
Attorney Gershman asked Town Manager Thrasher to read both Webster's Dictionary meaning of the word
predominate, which will be Defense's Exhibit #1 into evidence, and McMillan's definition, Exhibit #2. He
Ccontinued to discuss the multiple examples of the word predominate. Attorney Gershman questioned Town
Manager Thrasher regarding being an expert on the Town's code.
Town Counsel Randolph again interrupted regarding the line of questioning.
Attorney Gershman continued questions regarding Level 1 Review procedure. He inquired if Town Manager
Thrasher was familiar with Robert Currie.
Town Manager Thrasher discussed his knowledge regarding Mr. Currie, Mr. O'Boyle's Architect, who has
an office in Delray Beach, Florida, and who is considered a knowledgeable and reputable Architect.
Attorney Gershman inquired what Town Manager Thrasher knew of Tom Laudoni, and if there were any
"conspiracy" issues between them.
Town Manager Thrasher reported that he is a general contractor from Delray Beach, and a developer of
single family lots in a subdivision within the Town of Gulf Stream.
Town Counsel Randolph interrupted stating this information was out of the scope of this hearing.
Special Magistrate Torcivia sustained the objection.
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Town of Gulf Stream
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C'! Jonathan O'Boyle explained that Mr. O'Boyle and Mr. Laudoni are friends and Mr. Laudoni was targeted by
Town Manager Thrasher because of his association with Mr. O'Boyle. He also referred to the 14`h
Amendment.
Town Counsel Randolph repeated that this proceeding is in regard to the color code violation.
Attorney Gershman again questioned Town Manager Thrasher regarding the principle building colors on Mr.
O'Boyle's home, referring to Section Code 70-106. He also referred to the colors on the garage Exhibit #2.
Town Counsel Randolph requested Webster's definition be Exhibit #8.
Special Magistrate Torcivia announced there will be a 10 -minute break.
Court resumed at 11:38 a.m. and Special Magistrate Torcivia swore in Robert Curve, Architect
Mr. Currie reported on his experience and training. He agreed that he and Attorney Gershman met for the
first time at this hearing.
Attorney Gershman questioned Mr. Currie regarding his personal knowledge of the principle building color
of Mr. O'Boyle's home in Town of Gulf Stream.
Mr. Currie responded the principal color of that home is beige.
Attorney Gershman proceeded to question Mr. Currie regarding the effects of Exhibit #1 and Exhibit #2
affixed on Mr. O'Boyle's home.
Mr. Currie repeated that the principal dominate color of the home is still beige with regard to the overall color
of the home.
Attorney Gershman asked Mr. Currie the particular style of Mr. O'Boyle's home.
Mr. Currie stated that it is not one particular style because of the mixture of "things". He reported on the
various parts of Mr. O'Boyle's home e.g., brackets, overhangs, comesses, stone, and a trellis.
Attorney Gershman repeated that even with all those items on the home, the predominate color is still beige.
Mr. Currie agreed.
�_. Town Counsel Randolph reported that Mr. Currie was employed by Mr. O'Boyle to redesign his home, and
�' that he appeared before the Commission to apply for variances for the project. He continued that the
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Town of Gulf stream
July 16, 2013 — Page 9
C} variances were denied. Town Counsel Randolph had Mr. Currie read the definition of principle building
color. He referred to the Webster's Dictionary definition relating to Exhibit #2.
Mr. Currie read the definition, and stated his disagreement with "overpowering color".
Town Counsel Randolph stated that Mr. Currie is a witness for violation of Section 70-106 (b) (3) and not
for Section 66-141 (1) d. & e.
Special Magistrate Torcivia asked Mr. Currie what percentage was the building's beige color.
A discussion ensued regarding the word predominate colors, accent colors, doors vs. walls.
Mr. Currie stated that Mr. O'Boyle's home is not a Spanish Mediterranean house because of the barrel tile
roof, stone work and the trellis.
Town Counsel Randolph inquired if Mr. Currie knew Martin Minor and he replied "No", but he knew he
was part of Urban Design.
O Special Magistrate Torcivia adjourned this day's hearing at 11:30 A.M., asked for a recess until Thursday, July
18,2013,9:30 A.M. until 12:30 P.M.
Mr. O'Boyle thanked everyone for coming and participating.
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Town of Gulf Stream
July 18, 2013 — Page 30
C) Continuation of Special Magistrate Torcivia regarding Code Enforcement Case No. CE2-13 issues
that commenced on July 16, 2013 and is being reconvened on July 18, 2013 at 9:32 A.M.
Attorney Gershman stated he wanted to make a 2 -page memorandum sent the evening before to Special
Magistrate Torcivia and Town Counsel Randolph, via email, part of the record.
Town Counsel Randolph inquired as to when to address the issue mentioned in the memorandum, and
asked if the motion will be argued.
Attorney Gershman reviewed the code and the disposition of the matter. He addressed in detail Code 2-70
"Conduct of Hearings" with regard to upcoming witnesses.
Town Counsel Randolph referred to a memorandum from Jonathan O'Boyle sent to the Special Magistrate
regarding the le Amendment and due process with regard to the signs.
Special Magistrate Torcivia discussed in detail the 1" Amendment with regard to this case. He continued with
the legal nexus and the color issues. Special Magistrate Torcivia stated he will allow testimonies from
witnesses in regard to those issues only. He referred to anything else being addressed this day, as a time issue.
Cl Town Counsel Randolph responded that the motivation of the Town in issuing the citations was very
important relating to the color code. He further discussed why he would allow a proffer outside of the scope
of the Town's case regarding having the Town's witnesses stay in court for another day.
Special Magistrate Torcivia stated that the witnesses can be taken out of order.
Attorney Gershman reported the proffer with the witnesses and the dates of the correspondence. He also
discussed the series of events that manipulated the code to try and extract the sign Ordinance being dismissed
to the Town's advantage by saying the signs are now paintings and color only applies. Attorney Gershman
further stated that these actions were specifically targeted at Mr. O'Boyle because of the content of the
subject signage.
Town Counsel Randolph interrupted stating that it sounded like legal argument which should be reserved
until the end of the case. He continued that the Court should be proffering the witnesses' testimonies for a
ruling to whether they should remain for questioning. Town Counsel Randolph listed the witnesses who
were present, and stated he did not understand why they have not been called as yet.
Attorney Gershman detailed why each witness was subpoenaed.
Special Magistrate Torcivia reviewed the relevant issues.
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Town of Gulf Stream
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Attorney Gershman discussed in specific detail the purpose of the signs, their meanings and the freedom of
speech. He also addressed copies in his possession of emails between Mr. Minor and Town Manager
Thrasher with verbiage blacked out.
Town Counsel Randolph stated that the proffer from the Mayor is that she is a licensed Realtor and there
were real estate signs in the right of ways in Town which were determined not in accordance with the Town
code. He continued the position taken by Mr. O'Boyle and presumably, Attorney Gershman, is that the
Mayor of the Town, and as a Realtor, should have known that these signs that existed in Town were in
violation of the Town Code, and that she should have done something about it. Town Counsel Randolph
further reported that there was no nexus between her not taking advantage of advising the Town Manager to
do something about it, nor is there any testimony that she was the one supposed to be in charge of enforcing
the code. He continued that the Commissioners are not experts and they are not the ones that apply the
codes. Town Counsel Randolph stated that it is not only irrelevant, but it is prejudicial to be asking the
Commissioners as to what their opinion is in regards to the application of the code. He continued that
Mayor Orthwein has been Mayor for only one (1) year due to the death of the previous Mayor. Town
Counsel Randolph stated that the Level 1 Site Plan Review is an administrative review and the Commissioners
do not get involved with that level of review. He commented on other code violations which he knows
nothing about that the Mayor has not addressed. Town Counsel Randolph repeated that these items have
nothing to do with this case. He stated that Commissioner Ganger is also not an expert on the Town's Code,
and that their motivation should not be addressed by the Court. Town Counsel Randolph responded that the
Mayor and Commissioner should testify to things that are appropriate while they are in attendance. He also
responded to the memorandum that was presented the day before by Jonathan O'Boyle, with regard to the
14" Amendment and freedom of speech under the 1" Amendment. Town Counsel Randolph concluded his
argument stating that it is up to the Special Magistrate to make a determination as to whether or not the law
has been violated and whether a fine should be issued. He also read a portion of the order of the Federal
District Court for the Southern District of Florida, in the case of Martin E. O'Boyle vs. Town of Gulf Stream,
Case No. 13-80530.
Special Magistrate Torcivia read and discussed in detail Section 2-7b of the Town's Code, with regard to the
Commissioners' opinions of the Code.
Town Counsel Randolph stated that he did not want these proceedings challenged because the Special
Magistrate did not allow it in evidence "due to irrelevancy". He continued discussing legislature inquiries.
Town Counsel Randolph agreed with Special Magistrate Torcivia not wanting this hearing to become a
"three-day marathon".
Jonathan O'Boyle discussed and provided various unconstitutional incidents of freedom of speech, and the
unconditional singling out certain persons.
Special Magistrate Torcivia stated this was not a facial challenge, but an applied challenge. He also inquired
regarding the colors of the rainbow being on the approved color list.
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Town of Guff Stream
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Town Counsel Randolph commented that the Town's position is that the colors that are incorporated on
the rainbow are not on the approved color list.
Special Magistrate Torcivia discussed color by color and their shades.
Attorney Gershman responded that the Town has to carry their burden of whether they can or cannot prove
the elements of the violation.
Special Magistrate Torcivia stated he will allow the witnesses, but will limit where the questions lead to, and
gave examples of questions he will and will not allow.
Town Counsel Randolph reported the Mayor's and Commissioners' duties.
Mayor Joan K Orthwein was swom in and stated she has been Mayor for one (1) year this month, and
Vice -Mayor for fifteen (15) years.
Attorney Gershman continued questioning Mayor Orthwein inquiring her efforts with the Town prior to
being Vice -Mayor.
Mayor Orthwein stated she was on the ARPB, and worked together with Urban Design when setting up the
ARPB guidelines.
Attorney Gershman questioned Mayor Orthwein asking if she helped establish the codes they were
addressing this day. He also inquired if anyone in the room this day was involved at that time.
Mayor Orthwein responded "Mr. O'Boyle".
Attorney Gershman continued his questioning regarding her authoring the signs and codes. He inquired her
knowledge regarding the Level 1 Review process which she stated was the Town Manager's responsibility.
Attorney Gershman asked the Mayor her opinion of the predominate color code.
Mayor Orthwein responded that she is not an attorney and she depends on Town Counsel Randolph. She
also stated she has no opinion on that subject.
Town Counsel Randolph interjected stating that this is badgering the witness.
Attorney Gershman asked Mayor Orthwein her knowledge of who in Town has the responsibility for
enforcing the violations of the code.
Mayor Orthwein responded a Code Enforcement Officer, Town Manager Thrasher and a Police Officer.
Town Counsel Randolph repeated that Town Manager Thrasher was the person who enforced the code.
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Town of Gulf Stmam
July 18, 2013 — Page 13
OCommissioner Robert W. Ganger was swom in and stated that he sat on the dais, as Commissioner, since
August 2012. He reported on his three (3) years' experience as Chairman and three (3) years as Board
Member of the ARPB.
Attorney Gershman inquired with regard to his seven (7) years involvement with the Town was he ever
involved with any review process issues with regard to violations.
Commissioner Ganger responded "No" and further stated he found out about this hearing on the past
Tuesday when he was served with a subpoena which he did not understand the reason for.
Attorney Gershman questioned him regarding predominate building color.
Commissioner Ganger stated that the only time the ARPB would see the color chart was with a Level 3
Review when a building was being built and color was part of the plan.
Town Counsel Randolph objected stating Attorney Gershman was inquiring as to Commissioner Ganger's
thoughts.
Attorney Gershman asked the color of the room which Commissioner Ganger responded beige was the
single color.
Town Counsel Randolph stated that Commissioner Ganger was not involved with the enforcement of the
codes from a standpoint of a Level 1 Review. He also commented that Commissioner Ganger would not
have a comment with regard to the Town Manager proper enforcing the code with relation to Sec. 70-106.
Commissioner Ganger responded "No" to both above statements, and that he relies on the Town Manager.
Special Magistrate Torcivia questioned the listed principle and accent colors only allowed on the building.
Commissioner Ganger gave simple examples and terms and stated that he never remembers a case where
color was an issue.
Attorney Gershman stated "rubber stamping" after Staff accepted the colors of the structure.
Town Counsel Randolph objected to the mischaracterizing of the testimony.
Commissioner Ganger reviewed the color review process
Martin R. A. Minor was sworn in and stated that he was an Urban Planner with the Urban Design Studios,
i West Palm Beach, Florida, has a Master's Degree in Urban and Regional Planning, and described his type of
skills. He continued that he worked for the Town of Gulf Stream since 2004, as a Consultant. Mr. Minor
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Town of Gulf Stream
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C% detailed how he started his association with the Town, and his reviewing of their code amendments and plan
reviews.
Attorney Gershman inquired if the consultation process means that he was knowledgeable of the Town's
code.
Mr. Minor responded "The Land Development Code - Yes". He continued it is part of the overall code, and
that he has done so approximately forty (40) or fifty (50) times over the years. Mr. Minor explained that the
firm bills the Town for his time, and he receives a weekly salary whether he works for the Town that week or
not.
Attorney Gershman inquired if Mr. Minor had worked with Town Manager Thrasher as a Code Enforcement
Officer.
Mr. Minor stated "No", but has worked as a Consultant concerning code enforcement matters approximately
three (3) or four (4) times.
Attorney Gershman questioned if Mr. Minor has worked with the subject, Mr. O'Boyle's home's color/
paint/sign issues.
Cl Mr. Minor responded "briefly", and detailed his communication with Town Manager Thrasher, who sent him
pictures of the subject's home in April, and he reported that the paintings were not the approved colors.
Attorney Gershman repeated that while Town Manager Thrasher was still on vacation and had testified that
he had not seen any photographs of the subject's home paintings, he sent those pictures to you.
Mr. Minor responded "Yes", and that they spoke once on the telephone. He also produced an email from
Town Manager Thrasher.
Special Magistrate Torcivia called a two (2) minute recess.
Attorney Gershman handed Special Magistrate Torcivia the exact copies of the emails of Town Manager
Thrasher to Mr. Minor as the defenses' Exhibit #3 and Exhibit #4 from April 2013. He inquired if there
were incidents in Town wherein Mr. Minor thought that the code was being followed or being violated.
Mr. Minor stated "Yes" and gave examples of when and where in Town.
Town Counsel Randolph objected and stated that this had nothing to do with this case and has no nexus.
�,! Special Magistrate Torcivia overruled the objection.
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Town of Gulf Stream
July 18, 2013 — Page 15
C� Mr. Minor discussed in detail the North Ocean address regarding their gate. He further commented that his
opinion was in error on one issue and was discussed with Town Manager Thrasher.
Town Counsel Randolph renewed his previous objection and stated there was no nexus between [his
hearing and this particular case. Town Counsel Randolph stated that it related to an opinion in a totally
different matter whether or not a gate was legal.
Special Magistrate Torcivia stated he would allow it.
Attorney Gershman detailed a deposition from Mr. Minor dated June 5, 2013, and two (2) emails dated April
17, 2013, regarding Code Section 66-141. He thoroughly questioned Mr. Minor regarding his knowledge of
predominate building color on the code chart relating to the Town's homes, 1" Amendment issues, and his
shock in the contents of the photographs.
Mr. Minor replied the predominate building color should be the strongest element of that color, and
responded that the predominate color of the walls in this room was tan.
Town Counsel Randolph inquired from Mr. Minor the predominate color of the wall behind the
Magistrate's chair.
c' Mr. Minor reported that the predominate color is tan and the references to the sign and flag is temporary, as
they are placed in front of the wall.
Town Counsel Randolph further questioned Mr. Minor regarding the predominate color of the room's
color in lieu of the logo on the wall.
Mr. Minor responded "tan".
Town Counsel Randolph inquired if Mr. Minor made decisions with regard to how codes are applied, other
than consulting with Town Manager Thrasher.
Mr. Minor responded "No".
Town Counsel Randolph asked Mr. Minor if he had any conversation with Town Manager Thrasher as to
how he should apply the code,after reading the emails. He also inquired if Town Manager Thrasher discussed
his concerns regarding the content of the painting on the wall.
Mr. Minor responded "No" to both inquiries.
Town Counsel Randolph displayed a photograph of the multi -colors on the subject's house and Mr. Minor
replied it is a "rainbow" and that is the predominate color.
Code Enforcement Hearing
Town of Gulf Stream
July 18, 2013 — Page 16
C' Town Counsel Randolph and Attorney Gershman discussed Exhibit #9, 23 Hidden Harbour Dr. dated July
15, 2013.
Attorney Gershman requested Mr. Minor to read the code definition of a garage and accent color.
Town Counsel Randolph interjected that there is nothing in the code referring to a garage door.
Mr. Minor stated that entry doors and garage doors are two (2) different things, and a garage door is
something other than an accent.
Attorney Gershman continued questioning Mr. Minor regarding the rainbow colors on the wall. He displayed
Exhibit #6 and Exhibit #6a with regard to the existing east elevation, and asked if Mr. Minor could say that
the rainbow covers that entire east elevation, as was previously testified.
Mr. Minor apologized for saying at first that it covered the entire east elevation.
Attorney Gershman asked his opinion of the size of the rainbow.
Mr. Minor reported that the rainbow covers columns and garage doors, and stated he would have to study
further Exhibit #6 and Exhibit #6a to give an opinion of the exact size.
C11
Special Magistrate Torcivia stated this hearing would be in recess until Monday, July 22, 2013, at 11:00 A.M.
This day's hearing ended at 12:45 P.M.
Code Enforcement Hearing
Town of Gulf Stream
July 4 2013 — Page 17
C) Special Magistrate Torcivia introduced Attorney Gershman and Town Counsel Randolph and opened the
hearing at 1:30 P.M.
Town Counsel Randolph requested the Notice of Agenda be added into evidence as Exhibit #10. He
continued he would like Section 66-141 (1) d. & e. and Section 70-106 (b) (3) also be submitted as evidence.
Attorney Gershman objected to those items for evidence.
Special Magistrate Torcivia stated they will all be part of an appeal, if requested.
Town Manager Thrasher upon being crossed -examined by Town Counsel Randolph responded as to his
duties as Town Manager, Zoning Inspector, and Code Enforcement Officer. He also responded to inquiries
regarding the time he was on vacation and when Town Clerk Taylor was acting as Town Manager. Town
Manager Thrasher stated that by appointing a Police Officer to act as a Code Enforcement Officer only had
that Police Officer take photographs and make a report of the situation, as did Police Officer Goral. He
stated that Officer Ginsberg was also involved at the beginning of this case. Town Manager Thrasher stated
that they were dealing with aesthetics and not content in Sections 66-141 d and a and 70-106 b3. He reported
his conversation with Mr. Minor before going on vacation. Town Manager Thrasher stated that he issued the
citation notice which brought about the hearing this day. He reviewed the Development Approval
Document which he described in detail signed by Agent William Ring, Attorney working for Mr. O'Boyle.
Town Manager Thrasher stated the subject home is described as Spanish Mediterranean Revival.
Attorney Gershman questioned scheduling with Town Manager Thrasher. He questioned Town Manager
Thrasher's truthfulness regarding his contact with Town Clerk Taylor regarding this case, and asked how he
prepared his testimony for this hearing.
Town Manager Thrasher described in detail the timeline of emails with Mr. Minor, photographs, courtesy
letter, his leaving for vacation, his non -communication with anyone other than Town Clerk Taylor, and
reviewing his cell phone bill with regard to exact dates of contact with Town Clerk Taylor.
Attorney Gershman continued questioning regarding Mr. Minor's opinion with regard to colors. He also
inquired regarding the exact definition of garage doors in the code.
Town Manager Thrasher responded there was no definition of a garage door under Section 66.
Town Counsel Randolph objected and stated that the Notice of Violation is what should be going forward
at this time.
Attorney Gershman read Paragraph 4 of the violation and questioned Town Manager Thrasher regarding the
various locations of the signs and colors on the subject's home
Town Counsel Randolph again objected stating that this questioning was not in regard to the violation.
Code Enforcement Hearing
Town of Gulf Stream
July 22, 2013 — Page 18
Attorney Gershman displayed photographs of various colors and discussed again the predominate colors in
each example which Town Manager Thrasher listed in order of number. He discussed in detail Exhibit #8,
the east side of subject's home with Town Manager Thrasher.
Town Manager Thrasher responded that the photograph was not the same colors, when he left on
vacation.
Attorney Gershman discussed gay rights as a rainbow symbol for that sect of people.
Town Counsel Randolph interjected again stating that the sign issue is not the violation.
Town Manager Thrasher stated he was aware of that symbol.
Attorney Gershman continued questioning regarding wall colors and the garage doors.
Town Counsel Randolph discussed Exhibit #8 and it's relation to Sec. 66-141d and e. He read the Code
section and questioned Town Manager Thrasher regarding their difference on the subject's home. Town
Counsel Randolph inquired if the colors were significantly different colors than the code which Town
Manager Thrasher stated `yes'.
Special Magistrate Toxcivia called for a two (2) minute recess.
Ryan Witmer was sworn in and stated he worked for Commerce Group Inc. owned by Martin O'Boyle in
their legal department. He stated he is friends with Mr. O'Boyle's son, Jonathan O'Boyle, that they had
attended school together, and stated he would never lie for anyone.
Attorney Gershman inquired if Mr. Witmer had knowledge of the home in this matter. He displayed Exhibit
#7 1-14, and questioned him regarding percentages of the colors on the home.
Ryan Witmer stated that he did not know the exact percentages.
Attorney Gershman continued questioning regarding the size of the elevations of the home.
Ryan Witmer responded that from the wall of painting of the home the image is 0.62% of the surface area.
He detailed the Tweedle Dee and Tweedle Dum sizes in regard to the wall, and how he arrived at his figures
when the garage doors were opened. Mr. Witmer reported the size of the rainbow stripes. He described the
east elevation wall space. Mr. Witmer addressed the view from the front of the home.
Attorney Gershman questioned Mr. Witmer regarding his attendance at a Town Commission Meeting on
�` April 12, 2013.
Code Enforcement Hearing
Town of Gulf Stream
July 22, 2013— Page 19
CMr. Witmer discussed how Town Counsel Randolph and Mr. O'Boyle were in conversation after the
completion of the meeting, in the vestibule, regarding a newspaper article on the Internet, regarding a gay
rights organization that had a similar painting (rainbow colors) on their particular structure. Mr. Witmer
described their comments.
Attorney Gershman continued questioning Mr. Witmer regarding his knowledge of the meaning of rainbow
colors to which Mr. Witmer responded.
Town Counsel Randolph objected to that information. He questioned Mr. Witmer regarding the April
Commission Meeting.
Attorney Gershman again questioned Town Clerk Taylor regarding the dates of her contact with Town
Manager Thrasher between April 27 and April 30, 2013.
Town Clerk Taylor discussed the substance of their conversation with regard to the incomplete paintings on
the south side of Mr. O'Boyle's home.
Attorney Gershman continued discussing Exhibit #1 and Exhibit #2, and her knowledge regarding them. He
inquired further regarding a timeline and substance of her telephone conversations with Town Manager
Thrasher, while he was on vacation.
Town Clerk Taylor described in detail the filing and approval of the permit process. She also discussed the
issue of unacceptable colors.
Town Counsel Randolph objected stating that Attorney Gershman was "putting words in her mouth".
Attorney Gershman continued questioning the colors on Mr. O'Boyle's home.
Town Counsel Randolph inquired if her decision was on color not content.
Town Clerk Taylor responded "Yes".
Town Counsel Randolph read the explanation of accent colors and garage doors in the Code.
Town Clerk Taylor discussed her experience when she was present at the legislation of the code. She stated
that the reference in the code to "door" in the accent color section was only intended for the entry door to
the dwelling as one home in Town at the time had a red entry door and it was felt to be a nice accent feature.
Attorney Gershman continued questioning regarding residents' hurricane shutters' colors.
Town Clerk Taylor explained that process.
Code Enforcement Hearing
Town of Gulf Stream
July A 7013 — Page 70
Special Magistrate Torcivia questioned Town Clerk Taylor regarding different examples of acceptable colors
painted on the same wall. He also inquired regarding the style of the subject home.
Town Clerk Taylor responded to each example given with the approved code explanation.
Special Magistrate Torcivia called for a 5 minute recess.
Kelly Avery was sworn in, introduced herself and stated she recognized Defense Exhibit #3 email which she
sent to Town Manager Thrasher on April 18, 2013. She also stated that when Officer Ginsberg brought in
the four (4) photographs she sent them to Town Manager Thrasher, as instructed by Town Manager
Thrasher.
Attorney Gershman questioned Mr. Witmer again regarding the Spanish Mediterranean house.
Mr. Witmer described in detail the application process with Town Manager Thrasher and Attorney Ring at
Town Hall.
Town Counsel Randolph inquired if Mr. Witmer remembered Mr. O'Boyle stating at the time of the
conversation in the building vestibule `Be careful of what you wish for".
CMr. Witmer stated "Yes, I do". He also stated that Mr. Currie stated the home was not a Spanish
Mediterranean house and Town Manager Thrasher stated it was, prior to the application process.
Town Counsel Randolph stated the Town had nothing further.
Special Magistrate Torcivia reported possible dates for final decision.
Attorney Gershman questioned distribution and costs of transcripts.
Special Magistrate Tocivia stated that is up to Counsel to decide that manner, and that he respects both
lawyers. He fiuther stated both lawyers will receive all exhibits and transcripts. Special Magistrate Tocivia
also reminded both lawyers that the briefs should be brief
Special Magistrate Tocivia adjourned this day's hearing at 4:09 P.M.
Recording Secretary