HomeMy Public PortalAbout12 04 15 MinutesMINUTES OF THE CODE ENFORCEMENT HEARING HELD BY THE CODE
ENFORCEMENT SPECIAL MAGISTRATE OF THE TOWN OF GULF STREAM ON
FRIDAY, DECEMBER 4, 2015 AT 10:00 A.M. IN THE COMMISSION
CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA.
The Special Magistrate, Gary Brandenburg, called the hearing to
order at approximately 10:00 A.M. Mr. Brandenburg said the
hearing would be conducted with the Town presenting any case
they have with any evidence they have and then the respondent
will have an opportunity to present any matters that he should
wish to present. He explained that these matters are quasi-
judicial and that all testimony will be given under oath. He
further explained there is a right to ask questions of those
presenting evidence on the matter, and rules that lawyers use in
the court room when presenting evidence are not required as long
as it is relevant and not overly repetitious, and that he would
give it the weight that would otherwise be given to it in a
court of law. Attorney Brandenburg asked for anyone who is going
to speak at this hearing to please stand and to raise their
right hands. He then administered the Oath to Town Manager
Thrasher, Town Clerk Taylor, Christopher O'Hare, Marty Minor,
Steven Tobias. He asked if there were any preliminary matters
to settle and there were none.
Special Magistrate Brandenburg called Case No. CE 15-1, 2520
Avenue Au Soleil, Gulf Stream. He then asked that the parties
indicate their appearances. John Randolph stated he is
representing the Town in this matter and Lou Roeder stated he is
representing Mr. O'Hare. Mr. Brandenburg then asked if there
were any others present who wished to be heard on this matter
and there were none. He further asked if there were any
preliminary matters that needed to be discussed before the start
of the hearing and Mr. Roeder stated he had a couple of items.
Mr. Roeder stated for the record that they had asked for a
postponement as they had not been afforded the opportunity to
examine the evidence against them until about one and one-half
days previously. He then asked if the witnesses should be
sequestered out in the lobby. The Special Magistrate advised
that typically witness are not sequestered in a code enforcement
matter. However he said the Town and Mr. Roeder could agree to
that if desired. Attorney Randolph said the problem is that Bill
Thrasher is the representative of the Town who would have the
opportunity to stay and Rita Taylor, who is the Clerk, is taking
testimony today. Mr. Roeder stated they have no objection to Mr.
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Thrasher and Ms. Taylor remaining and Mr. Randolph had no
objection to the other witnesses remaining outside the room. Mr.
Roeder said he had no other witnesses except those the Town has
named.
Mr. Brandenburg said that with regard to the postponement
request, he looked at the period of time since the notice of
violation had been issued and the fact that they had previously
requested a postponement and received it, there had been ample
time to prepare the case. He said that if there are any
objections with respect to the particular evidence that is being
presented, they may make it at those times, otherwise their
motion for postponement was denied.
Attorney Randolph began by saying as a preliminary matter he
would like to mark certain evidence that will be used as a basis
of this hearing but he would not attempt to introduce all of the
evidence at the outset but felt the Code Enforcement Statute
should be entered as he wanted to show the Special Magistrate
has the jurisdiction to consider these matters today.
The Special Magistrate said he would be happy to mark the
exhibits once they have been shown to the opposing Counsel.
Mr. Roeder had no objections and Mr. Brandenburg marked a copy
of Code Enforcement Provisions of the Town of Gulf Stream, pages
1 thru 7 Town Exhibit #1. Mr. Randolph then presented copies of
the Notices of Violation and Proof of Service in regard to each,
a composite exhibit containing the initial notice of violation
dated August 4th and all of the violation notices subsequent to
that and the notices of hearing related to it, and the proofs of
service. Mr. Roeder had no objections and marked this as
accumulative Town Exhibit #2. Another composite exhibit
consisting of Ordinances of the Town of Gulf Stream, numbers 70-
99, 42-29, and 70-238, which were designated in the Notices of
Violation was presented with no objections and marked as Town
Exhibit #3. A photograph of the roof on the home at 2520 Avenue
Au Soleil as it exists today was presented, also with no
objection, and was marked as Town Exhibit #4.
Mr. Randolph made a preliminary statement to outline the nature
of the case. He said this hearing is being held as a result of
the abandonment of a re -roofing project which was approved by
the town and it's building official, that being the City of
Delray Beach which serves in that capacity as a result of an
Interlocal Agreement.
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Attorney Randolph explained that the original building permit
application was approved by the Town and by the City of Delray
Beach in August of 2011. That permit allowed for the removal of
the existing barrel tile roof which was to be replaced by a
white, thru and thru, with no slurry, flat, cement tile. The
material that has existed on that roof since that date in 2011
is simply an underlayment and nothing has moved forward with the
installation of the white tile that was covered by the permit.
He further explained that the purpose of this appearance is to
prove the violation of 3 sections of the Town's Code of
Ordinances, the first and most important is Section 42-29 which
states that all authorized construction under permit shall be
completed prior to the expiration of that permit. He said that
testimony will be heard, from the Building Official of the Town
of Gulf Stream, that this permit has expired and the ordinance
provides that once the permit has expired, that shall be prima
facie evidence of abandonment of the job. He went on to explain
that the testimony from Mr. Thrasher will address Sections 70-
238 and 70-99 and will show that the materials present on the
roof this day, 4 years after the initial permit was granted are
not in conformity with the Town Code.
The issue is that Mr. O'Hare became dissatisfied with his
initial application to have white tile installed on the roof. A
subsequent request was made to change to a metal roof, alleging
that the structure could not support a white tile roof. Mr.
Randolph explained that each of the types of replacement for the
original permit that were sought were in contravention of the
Town Code. When he was advised that metal roofs were not
permitted for this type of home or in this district, he was
advised that he could apply for a variance for a metal roof and
did subsequently make application before the Board of
Adjustment. The findings were that there was no hardship and the
variance was denied after which Mr. Roeder, on behalf of his
client, filed an appeal which went to the 15th Judicial Circuit
in Palm Beach County and the appeal was denied. He said the
primary argument in the appeal was that the structure would not
support a tile roof and the Circuit Court denied the appeal and
they then appealed the decision of the Circuit Court to the 4th
District Court of appeal on the same basis and this appeal was
also denied, upholding the decision of the Town Commission. Mr.
Randolph added that Mr. O'Hare then made an application for a
solar sandwich roof which the Town Manager denied because it was
not in compliance with Town Code and another variance was
applied for before the Town Commission acting as the Board of
Adjustment and that variance was denied and that action was
sustained by the 15th Judicial Circuit. He pointed out that the
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town has delayed this particular action over the past four years
in order to give Mr. O'Hare an opportunity to get a decision in
his appeals, which now has been made by the 4th District Court of
Appeal and by the 15th Judicial Circuit, and now the Town is
requesting that Mr. O'Hare comply with his original permit
request. Mr. Randolph reminded that during the past 4 years Mr.
O'Hare's roof has remained incomplete, and that during that
time, numerous neighborhood complaints have been received. Mr.
Randolph explained that the Town is seeking today, an order
finding Mr. O'Hare in violation of all three sections of the
town code for which he has been cited for being in violation,
with an order to comply within a period of 30 days of the date
of the Magistrates order.
Special Magistrate Brandenburg asked Mr. Roeder if he wanted to
give an opening statement at this time or wait until he began
presenting his evidence to which Mr. Roeder replied that he
wanted to wait until they start giving their evidence.
Attorney Randolph called his first witness, Steve Tobias.
At the direction of Mr. Brandenburg, Steve Tobias spelled his
name and stated his address to be 6424 Blue Bay Circle, Lake
Worth, Florida 33467, adding that he had been sworn in today.
In answer to a question from Mr. Randolph, Mr. Tobias stated he
has been employed by the City of Delray Beach for 5 years as
Building Official and his duties are to inspect and review plans
for construction, and prior to that he was a Building Inspector.
Attny. Randolph then asked if he also acted as Bldg. Official
for the Town of Gulf Stream to which Mr. Tobias replied that he
does through an Interlocal Agreement. In reviewing a copy of the
Interlocal Agreement offered by Attorney Randolph, Mr. Tobias
explained that it provides for inspections and plan review for
the Town of Gulf Stream. The Interlocal Agreement was admitted
to the record and marked as Town Exhibit T-5 and there was no
objection from Mr. Roeder. Mr. Randolph asked Mr. Tobias if he
looks at applications that are filed to which Mr. Tobias replied
that usually when it becomes a concern but normally those go
through a process system. Mr. Randolph asked if Mr. Tobias had
seen a copy of a City of Delray Beach form regarding a reroofing
application for a property in the Town of Gulf Stream and handed
him a document. Mr. Tobias said he was familiar with the
document and it was entered into evidence with no objection from
Mr. Roeder. Mr. Brandenburg marked the document as Town Exhibit
#6. Upon being asked what this exhibit was for, Mr. Tobias
replied that it is for a reroof with white thru and thru tile
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with no slurry coating or paint and would be flat cement for
2520 Avenue Au Soleil. In reply to several questions from Attny.
Randolph, Mr. Tobias testified that it is his responsibility to
make certain the work that is done is what is shown on the
permit application, a permit was issued for the work described,
the permit was approved and signed off on August 30, 2011 with
the Town of Gulf Stream having approved it on August 29, 2011
and that the attachment fastened to the permit application is a
copy of the Building Permit Card that was issued and does match
the application. Mr. Randolph questioned if the work identified
in the application was ever completed to which Mr. Tobias
replied that according to their records, no. Mr. Randolph then
showed Mr. Tobias a photo showing the roof as it appears this
date and is marked as Town Exhibit #4 and asked him to identify
the material on that roof. Mr. Tobias said it is not tile but he
cannot tell exactly what the material is or what the coating is
that is covering the material.
Mr. Brandenburg asked Mr. Tobias to describe exactly what is
meant by the description of the tile that was approved for the
roof and Mr. Tobias gave a detailed explanation. Mr.
Brandenburg, again showing Mr. Tobias the photo of the roof as
it appears this day, asked if he sees any cement tile at all on
the roof and Mr. Tobias said it does not appear so on the
picture. Mr. Brandenburg then commented that the roof appears to
be covered with some sort of layering of a material that goes
along the length of the roof and Mr. Tobias agreed. On a
question from the Special Magistrate Mr. Tobias said he is
unable to tell whether it has been painted or is the natural
color of the material.
Attorney Randolph asked Mr. Tobias if he had been able to
determine if the permit that was originally granted for this
work had expired and he replied that according to their records
in the City of Delray Beach, the permit has expired and the last
inspection that had taken place was April 26, 2012. Mr. Randolph
then asked if there are provisions in the Florida Building Code
relating to expirations of the permits and/or the work. Mr.
Tobias advised there are provisions and that this particular
permit was issued under the Code of 2007 which provides in
Section 105.4.1.3 of the administrative portion of the Code that
permits expire 180 days from the last approved inspection. He
stated that 180 days after April 26, 2012 is the expiration date
of this permit. Attorney Randolph then asked if there had been
any attempts to renew the permit to which Mr. Tobias replied
there was a renewal request on November 14, 2012 which was
granted and on June 24, 2013 there was another request in that
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there was no activity after the November 14, 2012 renewal. The
second request was first approved and then denied. Mr. Randolph
asked if the renewal request was for the white tile roof or
something different to which Mr. Tobias stated the renewal
request was for the white tile roof. Mr. Randolph then asked why
the second renewal request had been denied and was told that the
Code had changed and the second renewal was issued in error and
corrected with the denial. In answer to a question from the
Attorney, Mr. Tobias advised that the owner could not continue
work under the permit that has expired but would need to file
for a new permit as the Code was revised in 2010 which has come
and gone and now we are in 2014.
Mr. Brandenburg confirmed with Mr. Tobias that his testimony was
that he considered the permit expired since 160 days had passed
since the last approved inspection on April 26, 2012 and then
asked if there was an inspection on April 26, 2012. Mr. Tobias
said this is true and then read the list of inspection dates for
the permit, those being September 6, 2011, November 30, 2011,
and on April 26, 2012. In answer to a question from Mr.
Brandenburg, Mr. Tobias said he did not know the date of 180
days from April 26, 2012.
Mr. Randolph said he had no more questions at this time
Mr. Roeder stated they would prefer to defer their questions,
until such time as they present their case.
Mr. Brandenburg stated there will be no cross examination of
this witness but he must remain outside the room.
The Town called Bill Thrasher who gave his name as William
Harrison Thrasher, Jr. and his address as 811 S. J Street, Lake
Worth, Florida. He acknowledged that he had been sworn in.
In answer to questions from Attorney Randolph, Mr. Thrasher said
he was employed by the Town of Gulf Stream and has served as
Town Manager for approximately 16 years and that he is
responsible for the day to day operation of the Town, to
administer the code, follow the directions of the Town
Commission and provide the necessities in the daily operations.
Mr. Randolph asked if his duties include acting as the planning
and building administrator for the Town to which Mr. Thrasher
replied yes. He was then asked if, in his duties as planning and
building administer, he reviews, approves or denies permit
applications for roofing permits, and is that part of what is
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called a Level 1 architectural review wherein he is allowed to
approve, approve with conditions or deny an application. Mr.
Thrasher said these are his duties with the exception of
including conditions. Mr. Thrasher acknowledged that reroofing
applications require a Level 1 Review and that he did a Level 1
Review for the reroofing of 2520 Avenue Au Soleil, which
included the removal of existing tile and the proposed
installation of white, thru and thru concrete tile without any
slurry coating or paint, on August 29, 2011 followed by the
Delray Beach review on August 30, 2011. In answer to questions
from Attorney Randolph, Mr. Thrasher said that the existing roof
is a concrete tile roof, that he was able to give approval to
the reroofing permit without sending it to a reviewing body
because the application met the provisions in the Town Code and
that he then sent the application to the City of Delray Beach
for their analysis and subsequent approval as the Building
Official, Steve Tobias at this time, of Delray Beach is
designated as the Gulf Stream Building Official in the
Interlocal Agreement. Mr. Randolph asked if a permit for the
work shown in the application was ever issued and if so, was the
work ever completed. Mr. Thrasher said that the permit was
issued but the work described in the permit was never completed.
Attorney Randolph pointed out that he had entered into evidence
Sec. 42-29 of the Code and he asked Mr. Thrasher if, pursuant to
that section, the work originally approved was abandoned because
when a building permit expires, that is prima facie evidence of
the fact that the work has been abandoned. Mr. Thrasher said
that is correct. In answer to questions from Mr. Randolph, Mr.
Thrasher advised he had observed the roof at 2520 Ave. Au Soleil
this morning at 9:10 A.M. and that he had taken pictures of the
roof as it existed on December 2, 2015.
The Special Magistrate marked the 3 photos of the roof as Town
cumulative Exhibit 7 taken on December 2, 2015 and there were no
objections to them being admitted. Mr. Thrasher stated these
phots were taken to show the outer most materials currently
existing on the roof, that the current condition of the roof is
in violation of Town Code, that the roof has been in this
condition for approximately 4 years and there have been
complaints from neighbors in regard to this. Attorney Randolph
asked if Mr. O'Hare had made any attempts since August 2011 to
modify his initial application. Mr. Thrasher stated that around
November 2011 he, or his representative, applied to the Town
Clerk, Rita Taylor, for a permit revision to change to a metal
roof. In reply to a question from Attorney Randolph, Mr.
Thrasher said that a metal roof is not allowed, referencing
Section 79-99 that had been entered earlier as a portion of
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Town's Exhibit 3. Mr. Randolph further noted that Mr. O'Hare
has also been cited under Code Section 70-238 which has also
been entered into evidence and he asked why the present roof is
also in violation of that section of the Code. Mr. Thrasher
replied that 70-238(a) Required states white thru and thru un-
coated and grey slate tile may be permitted on homes that are
predominately Georgian or British Colonial with Bermuda
influences and that 70-238(d) Prohibited lists tiles other than
white flat un -textured or grey slate tiles, adding that these
sections are not in conflict with each other. In addition, Mr.
Thrasher cited the existing roof in violation of Section 70-
99(3) Prohibited in that one of the prohibited items is
"Inconsistent roofing materials visible from the exterior of the
property".
Mr. Randolph asked if a variance would be required in order to
get a metal roof and to what body would the application be made.
Mr. Thrasher replied a variance would be required with the
application being considered by the Town Commission sitting as
the Board of Adjustment. He added that Mr. O'Hare did apply for
the variance and it was denied by the Board of Adjustment. He
then appealed to the Palm Beach County 15th Judicial Circuit
Court and the Court upheld the denial. Mr. O'Hare then appealed
the decision of the Circuit Court to the 4th District Court of
Appeal and they denied his request.
Attorney Randolph asked to enter the petition
Judicial Circuit Court and the Order from the
Circuit Court and there were no objections.
Brandenburg marked the Petition Town Exhibit
from the Court as Town Exhibit 9.
to the 15th
15th Judicial
Special Magistrate
8 and the Order
Mr. Randolph then asked to enter into evidence the Petition,
Appendix and Order of the 4th District Court of Appeal regarding
Mr. O'Hare's appeal from the Circuit Court. There were no
objections and the Special Magistrate marked this Set Town
Exhibit 10.
Attorney Randolph then asked Mr. Thrasher if Mr. O'Hare applied
for yet another type of roof to which Mr. Thrasher replied that
he applied for a sandwich metal roof which he did not approve as
it was a metal roof in violation of the Code and Mr. O'Hare
again applied for a variance which was denied by the Town
Commission. In reply to the next question from Attorney
Randolph, Mr. Thrasher confirmed that Mr. O'Hare did also appeal
that denial to the 15th Judicial Circuit. Mr. Randolph then
presented the petition, seconded Amended Petition and the Order
affirming the Town with respect to the decision. There were no
objections to admitting this and it was marked as Town Exhibit
11.
Attorney Randolph then asked if Mr. O'Hare had filed yet another
application for a different type of roof to which Mr. Thrasher
replied, yes and that he did not approve it as the materials
selected were not what were required for a Gulf Stream Bermuda
style home in that it was not white, flat, thru and thru smooth
un -coated tile or grey slate like tile but was a ceramic tile
coated with a fired finish. He went on to explain that he
responded on September 18, 2015 to a letter dated September 16,
2015 that was hand delivered by Mr. Roeder which was composed by
Mr. O'Hare explaining that he could not approve it and advised
that they have an option to challenge his administrative
decision or to apply for a variance within 30 days as provided
in Section 66-145(12) Appeals of the Town Code. Mr. Thrasher
read this section aloud. The two letters were entered into
evidence with no objections and marked as Town Exhibit 12. Mr.
Randolph asked if the decision was ever appealed or a variance
applied for and Mr. Thrasher replied that neither option was
sought. Attorney Randolph asked to admit into evidence Section
66-145(12), there were no objections and Special Magistrate
Brandenburg marked it Town Exhibit 13.
Mr. Randolph asked Mr. Thrasher if the remedy he is seeking from
The Magistrate to have a finding of violation of the 3 Code
Sections that the town has cited and to give an opportunity of
30 days to comply and Mr. Thrasher replied that this is correct.
Attorney Randolph then stated he has no further questions at
this time.
Special Magistrate Brandenburg asked Mr. Roeder if he had any
questions at this time and Mr. Roeder replied not at this time
but would reserve. He then excused Mr. Thrasher, advising that
he may remain in the room.
Attorney Randolph then called Rita Taylor and asked Mr. Thrasher
to sit in the Clerk's chair and continue to list the exhibits.
In reply to questions from the Magistrate, Ms. Taylor stated her
name is Rita L. Taylor, she resides at 5000 N. Ocean, F10,
Boynton Beach, Florida and that she has been sworn in.
Mr. Randolph asked Ms. Taylor several questions to which she
replied that she is employed by the Town of Gulf Stream as Town
Clerk and has been so employed for over 25 years, that she has
been a Town Clerk for a total of 40 years. Mr. Randolph then
asked if, in her position of Town Clerk, she prepares the
notices of violation of Town Code and the notices of hearing to
which she replied that she does. He then showed the Clerk Town
Exhibit 2, the notices of violations, proofs of service and
notices of hearing and asked if they had been prepared by her to
which she replied that they were. He then asked how it is
determined what violations of the Code are to be included in the
notices and she stated that she and the Town Manager discuss the
matter and come to an agreement on the violations. She further
stated that she is in agreement with the violations that are
listed in this notice. She confirmed that she has a record to
show that the notices were served on Mr. O'Hare and the
Magistrate confirmed that they have been entered as Town Exhibit
2. Attorney Randolph asked when Mr. O'Hare had first been served
on these violations, if it contained a date by which he should
comply and if he did comply. Ms. Taylor said Mr. O'Hare was
first served on August 5, 2015 at his home, was given 30 days to
comply and he did not comply with that date. She said a
subsequent notice was delivered to him on August 14, 2015 due to
the uncertainty as to the age of the person who accepted service
on the first notice, and this notice also directed compliance in
30 days. Mr. Randolph questioned if there was a subsequent
notice issued and Ms. Taylor said there was one delivered to Mr.
O'Hare on October 31, 2015 establishing a hearing date of
November 16, 2015 that also established a date for compliance
which did not occur. She then confirmed that hearing did not go
forward as he asked for a postponement and a new date of
December 4, 2015 was set, including a time to remedy the
violations, and the notice of this was delivered to him on
November 14, 2015.
Mr. Randolph asked what involvement Ms. Taylor had with the
original application for the white tile roof to which she
replied that she looked at the application and determined it met
the provisions of the Code and Mr. Thrasher then received the
application and was in agreement. He then asked if she had seen
a subsequent permit revision request seeking a metal roof and
she said had seen that. A copy was presented, there were no
objections and it was marked Town Exhibit 14. In reply to a
question from Mr. Randolph, Ms. Taylor said this revision
request is dated November 15, 2011. He then asked Ms. Taylor if
she heard the testimony of Mr. Tobias wherein he stated that in
2013 Mr. O'Hare filed for a continuation of the original permit
of 2011 to which she replied that she had heard this testimony.
He next questioned if she had handled the intake of the revision
application to which she replied that she had and that she
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refused to accept it in that it reads that "customer wants to
change to a metal roof". Ms. Taylor went on to say that when she
told the lady who was delivering the document that she could not
accept it, the lady, Diane Mulvey, said "I know, I told him that
you wouldn't accept it because Gulf Stream does not allow metal
roofs, but he wanted me to apply for it anyway." Ms. Taylor
added that she gave the application back to Mrs. Mulvey.
Attorney Randolph then inquired if that application for a metal
roof was the one that was ultimately appealed to the Circuit
Court and to the 4th District Court of Appeals and denied to
which Ms. Taylor replied, yes. He then showed Ms. Taylor a copy
of a letter dated December 14, 2011, which is one month after
Mr. O'Hare had asked for a metal roof, and asked if she could
identify it. Mrs. Taylor said this letter was presented at one
of the hearings in front of the Board of Adjustment and
confirmed that she had not seen this letter until it came before
the Board of Adjustment. In answer to a question from Attorney
Randolph, Ms. Taylor stated that the Commission had asked for
engineering proof of a statement that had been made which was
that the structure would not support a cement tile roof. Ms.
Taylor concurred with Mr. Randolph that this letter was
submitted a month after he stated he wanted a metal roof and
that she found it quite unusual that the letter came in a month
after the application from Mr. O'Hare for a metal roof.
Special Magistrate Brandenburg, hearing no objection, marked the
letter dated December 14, 2011 from Terrance Lunn as Town
Exhibit 15.
Attorney Randolph stated he had no more questions for this
witness and Attorney Roeder said he did not want to cross
examine at this time.
Attorney Randolph stated the Town rests its case at this time.
At the request of Attorney Roeder, a 15 minute break was
declared at approximately 11:10 A.M.
The hearing reconvened at 11:35 A.M. and the respondent was
directed to present their case.
Attorney Roeder stated he would like to address some of the
content of Attorney Randolph's opening remarks. He acknowledged
the original application for the white tile roof, adding that
during interior demolition associated with remodeling the home
it was discovered there were structural problems with the roof
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and the underlayment had already been installed and he submitted
to the town for a metal roof. He believed the communications
were given out of context. He said Mr. O'Hare talked to the
roofer about putting in a metal roof, that being the lightest
material, and the roofer approached the town and Mr. Thrasher
told him the town did not allow metal roofs. After that, Mr.
O'Hare found in the Code a subsection to 70-238 that said no
metal roofs unless you have a certification from an engineer
that the structure cannot take a normal roof and that it is in
conformity with the neighborhood. He said Mr. O'Hare then went
back to the engineer and asked him to certify this. He said that
the Town claims they did not hear about the certification until
the actual meeting but that they had included it with the
application for a metal roof and the town asked Mr. O'Hare for
permission to allow the Town's engineer on his property to
verify the certification. He said that a police officer had come
on to the property without a warrant in October 2011, before he
was finished with his submittal, when his workers were inside
doing the renovation and ordered the workers to leave. In view
of this incident Mr. O'Hare was not anxious to allow anyone to
come into the house, he said. He further said the Clerk had
called prior to the meeting to ask permission for their engineer
to examine the structure and had supplied 3 possible dates to
choose from and Mr. O'Hare said no because no certification had
ever been questioned by the Town prior to this. He further
explained that it was not a variance that they applied for but
was an appeal of Mr. Thrasher's decision that a variance was
needed because they believed they were entitled to the metal
roof under the exception that included an engineer's
certification of the condition of the structure. He said Mr.
Randolph, at the hearing, acknowledged for purposes of court
appeals that they had done everything the Code requires. Mr.
Roeder reported that Mr. O'Hare did appeal but he petitioned for
a Writ of Cert which proved he had due process but did not deal
with whether or not the Commission did the right thing. He
acknowledged that they had then appealed to two other courts and
both of those were denied.
Attorney Roeder then related that Mr. O'Hare had found a State
Statute that takes precedence allowing for a solar energy based
roof. He continued saying that one had been found that is a
solar sandwich, hot water with a metal roof and the town denied
it but Mr. O'Hare is still considering further action.
Subsequent to that application, he found a roof material that is
allowed elsewhere in town, a clay tile that looks like slate
tile, and made application to install that. That was not
approved either because they said the house is "Bermuda" and
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slate tile roof is not allowed. He further said that the records
indicate the house never was Bermuda, it is shown as "other
various". Mr. Roeder stated that Mr. O'Hare is trying to do what
is right for his family, put a roof on to protect them. He
added that in one of the hearings he had asked the Commission if
the Town would indemnify the O'Hare's if they installed a cement
tile roof and no reply was made. He said that today they will
address the charges, one at a time, and give some insight to the
court with regard to the Town denying various attempts for the
roof installation and then issuing a Code Enforcement violation
for not having the roof on. He said they will also address how
the court actions impact the claim of abandonment and pointed
out that the Town has threatened Mr. O'Hare that if he didn't
drop his court cases or they would bring him on charges of a
RICO Statute. He said Mr. O'Hare begged the Town and provided
statements from the Town's star witness showing that he had
nothing to do with the RICO scheme. He said this case was
dismissed in June 2015. He then stated that they have another
Federal Case on which they have filed a notice of appeal and one
of the items is the Town's denial of Mr. O'Hare's roof permit.
Mr. Roeder then called Mr. Thrasher and the Special Magistrate
advised that the lunch break will commence at 12:30 P.M. and Mr.
Roeder said he did not think they would be finished with Mr.
Thrasher by then but they will try.
Attorney Roeder asked Mr. Thrasher if he is considered to be the
expert in the Town Code and Mr. Thrasher said he does not
consider himself to be an expert but that he does have a working
knowledge of the Code. He was then asked to read aloud
Section 42-29, Construction Abandonment, and refers to
expiration of a building permit.
Attorney Roeder obtained a copy of Town Exhibit 6, a copy of the
Delray Permit Application with Building Permit Card attached,
from the Special Magistrate and handed it to Mr. Thrasher,
asking him if it has an expiration date to which Mr. Thrasher
replied, no. Mr. Roeder asked how Section 42-29 applies if this
document has no expiration date. Mr. Thrasher answered that the
record speaks for itself as it relates to Delray Beach's
Building Officials Inspection Record. Attorney Roeder said he is
asking why Mr. Thrasher said he submitted this notice of
violation and further stated "this is not a depo where there is
a lot of wiggling in and wiggling out, I'm asking you. . ."
Attorney Randolph objected to this language adding "just ask the
question." Mr. Brandenburg ask that the language be kept as
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straight forward as possible and directed the witness to answer
the question as straight forward he can.
Attorney Roeder reminded that Mr. Thrasher had stated he wrote
the notice of violation because the permit had expired but the
permit has no expiration date. Mr. Thrasher explained he did not
use this document to determine the expiration of the permit and
Mr. Roeder asked what he had used. Mr. Thrasher stated he had
discussed this with Mr. Tobias and he provided the Town with
records of the inspections.
Attorney Roeder submitted a copy of a letter dated August 4th,
remarking that he believed it was already in evidence from the
Town, and Mr. Brandenburg marked it as R (for respondent) -1 and
there was no objection. Mr. Roeder again asked Mr. Thrasher to
read Section 42-29 which states construction shall be completed
prior to expiration of the building permit. He explained that
the building permit has no expiration date and verified with Mr.
Thrasher that he had relied on a 3rd party for this
determination, the Building Official in Delray Beach.
Attorney Randolph, noting the 12:30 to 1:30 lunch break, asked
if he might be excused to inform Mr. Tobias that he may leave at
this time to return by 2 P.M. and the Special Magistrate granted
the request. Mr. Randolph returned and advised that he had also
informed Mr. Minor of these directions.
Attorney Roeder then asked to enter a form entitled City of
Delray Beach Community Improvement Department Form, there were
no objections and it was marked as Respondents Exhibit 2.
Attorney Roeder then asked Mr. Thrasher if he is familiar with
this document to which he replied that he had never seen the
document before and could not say what it is used for. Mr.
Roeder asked if it would surprise him to know this is a renewal
permit submitted to Delray Beach on 6-24-13. Mr. Thrasher said
he had no comment and was not familiar with this document. Mr.
Roeder expressed surprise that Mr. Thrasher as the Chief
Building and Planning Official for the Town had not seen any of
these renewal permits before. Mr. Thrasher repeated he had not
seen this type of document before and that he is the Planning
and Building Administrator and not the Building Official.
Attorney Roeder asked again who makes the building decisions
according to the Interlocal Agreement to which Mr. Thrasher
replied that Delray Beach handles the permitting and inspections
generally speaking and are the Building Official.
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Attorney Roeder gave a copy of Town Exhibit 5, as supplied by
the Special Magistrate, to Mr. Thrasher and asked him if he
recognized it, to which he replied that it is a copy of the
Interlocal Agreement between The Town of Gulf Stream and the
City of Delray Beach. Mr. Roeder asked if he could tell him when
the document was recorded to which he replied February 11, 2013.
Mr. Roeder then asked Mr. Thrasher, referring to Section 4 Sub
A, what that says and Mr. Thrasher read aloud "This Interlocal
Agreement shall be filed pursuant to the requirements of Section
163.01(11) of the Florida Statutes." When asked what the Section
says Mr. Thrasher replied that he believed, generally, requiring
recording of the document. Mr. Roeder asked "in order to be
effective" and Mr. Thrasher stated no, it may say that but he
didn't believe that to be the only way the document could become
effective. Mr. Roeder questioned why was it filed in 2013 if it
was effective before then to which Mr. Thrasher replied that he
did not know. He asked if it was a Public Records Request by Mr.
O'Hare that pointed out it was invalid and Mr. Thrasher said he
did not know as that would be something that would be handled by
the Clerk's Office for both parties.
Attorney Roeder showed Mr. Thrasher a letter from him to Mr.
O'Hare dated September 18, 2015 that the Magistrate had marked
as the Town's Exhibit 12, and asked him what the letter stated
as the last inspection date to which Mr. Thrasher replied, 4-26-
12. Mr. Roeder pointed out that date was prior to the recorded
date on the Agreement. He then asked if the town had any method
for tracking permits or inspections to which Mr. Thrasher said
the town does track permits, does not track inspections but the
inspection information is available on line. Attorney Roeder
handed Mr. Thrasher a document and asked if he knew what it is
to which Mr. Thrasher said it is a document from the Delray
Beach web permit system concerning the property at 2520 Avenue
Au Soleil, dated 12-2-15 with the highlighted portion stating
reroof of existing structure approved 6-21-13. This document was
marked Respondent Exhibit 3 with no objection.
Special Magistrate Brandenburg adjourned the hearing at 12:30
P.M. for lunch and at 1:30 P.M. reopened the hearing, reminding
Mr. Thrasher that he was still under oath.
On a question from Mr. Roeder, Mr. Thrasher replied that the
City of Delray enforces the Florida Building Code as they are
the Building Official for Gulf Stream. He then asked Mr.
Thrasher to read Section 105.4.1.3 of the Florida Building Code
and to interpret the second sentence to which Mr. Thrasher
stated he had no opinion and that he believed this to be a legal
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question. This document was entered as Respondents Exhibit 6 and
there were no objections.
Mr. Thrasher was then shown Notice of Violation letter dated
November 5, 2012 to Mr. & Mrs. O'Hare that had been signed by
Mr. Thrasher. Upon being asked, Mr. Thrasher said the first
paragraph addresses Expired re -roofing permit 11-135146 and
there was a reference to the Florida Building Code, same Section
previously referred to and states that the last roof inspection
was April 26, 2012 and this information was obtained from the
Delray Beach Building Official.
Mr. Roeder said that one of his questions earlier had to do with
a certain State Statute they had asked their office to forward.
He asked permission to check and see if it has arrived and it
was granted.
Mr. Brandenburg reminded that in their introduction they had
mentioned a Section in the Town Code, 71-872(1), but a copy had
not been provided. Mr. Roeder said that this section had been
revised but there is a note in the Section that was replaced
that is a part of their case and he suggested that staff find it
for him. When asked, the Town Clerk said she could find it but
certainly not in 5 minutes. Mr. Brandenburg directed that this
document be sent to him after the meeting has concluded and Mr.
Randolph was in agreement with that arrangement.
Mr. Roeder referred to Town Exhibit T-10, Case 4D13-0621 Page 19
of Amended Petition, which shows the changes.
Mr. Roeder handed Mr. Thrasher a document and asked him to
explain it to him to which Mr. Thrasher said this is a response
to a Public Records Request from Mr. O'Hare dated this date
wherein he is asking what complaints have been received by the
town in regard to the roof currently under construction at 2520
Avenue Au Soleil and asking that it be made available for
presentation at this hearing, adding that the response to the
request on the bottom states "be advised that there are no such
records, all complaints were verbal. We consider this matter
closed." The respondents requested a 5 min recess and it was
granted. Mr. Roeder asked to re -submit Town Code Section 70-238,
there was no objection and it was marked as Respondent Exhibit 8
which had originally been submitted as the Town Exhibit 3. In
answer to a question from Mr. Roeder, Mr. Thrasher acknowledge
that this document is a copy of a section of the Town Code
stating that white thru and thru, flat, cement tile or grey
slate tile are required roofing materials to be used on homes
ACT
which display architectural Bermuda influences and that this
structure was classified as Bermuda by a former Town Planning
and Building Administer and entered as such in Town records.
He added that in Sections 70-236 and 70-244 there are elements
listed that exist on this home. Attorney Roeder asked if there
is a map that indicates the various styles and their locations
and Mr. Thrasher said there is a survey map that is an analysis
of the types of homes that exist in town. He then asked to
enter a copy of Article 7 in the Town Code to which he would be
referring and it was marked Respondents Exhibit 9. On being
asked what this says, Mr. Thrasher read the last 2 sentences
which referred to a map on the next page and directed that any
new or remodeled structures must follow the provisions in this
article. Mr. Roeder then asked to have a color copy of the style
survey map, there was no objection and it was marked Respondents
Exhibit 10. In answer to Mr. Roeder's questions, Mr. Thrasher
explained that 2025 Avenue Au Soleil is shown as "other various
style" on the map but that is incorrect. In evaluating style,
the first step is to refer to the inventory sheet, in this case
it was prepared by the Planning & Building Administrator in 1999
and is classified "Gulf Stream Bermuda". The next step is to
compare the structure as it exists to the list of Bermuda
features described I Sections 70-236 thru 70-244 and the last
step is to ask the consultant, Marty Minor.
Mr. Roeder asked to have a black & white copy of a style sheet
and a color copy of the same style sheet entered, there were no
objections and they were marked Respondents Exhibits 11 and 12.
Attorney Roeder pointed out that this card says this is a re -
roof using a terra cotta flat tile material and is dated 11-22-
99. He asked Mr. Thrasher if he would approve this roof on a
Gulf Stream Bermuda home to which he replied that he would not
have the authority to do that.
He then presented a picture of the house at 2520 Avenue Au
Soleil that appeared to be a Goggle picture dated May 2011.
Attorney Randolph said his only objection would be relevancy but
he was aware those are not being entertained. The picture was
marked as Respondents Exhibit 13. Mr. Roeder observed the
picture shows a barrel tile roof and Mr. Thrasher agreed. He
then stated Mr. O'Hare purchased the home in the spring of 2011
and went on to ask why this would have been considered Bermuda
when it had a barrel tile roof to which Mr. Thrasher reminded
that the roof is not the only thing that determines the style
and repeated the procedure that is used to determine style.
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Attorney Roeder showed a document to Mr. Thrasher and asked him
what it was to which Mr. Thrasher replied it was a message from
him that was faxed by Rita Taylor to Mr. Roeder. The message was
a report from Mr. Minor with regard to his style analysis of
2520 Ave. Au Soleil. Mr. Roeder then asked Mr. Thrasher what he
had asked Mr. Minor to report on and he replied he had ask him
to list all elements that can be associated with the Gulf Stream
Bermuda. Mr. Roeder believed that the question to Mr. Minor
should have asked, what the style of the home is, not what are
the elements of Gulf Stream Bermuda.
Mr. Thrasher said he had driven by the home on many occasions
and Mr. O'Hare has made several changes over the years which he
approved on Level one applications i.e. changed from rough
stucco to smooth stucco, new windows, repainted using a color
from the Bermuda chart, and re -enforced rafter tales.
Next, Mr. Roeder presented a comparison of criteria as stated in
Minor's E-mail of 9-29-11 vs Town Code that was prepared by Mr.
O'Hare and he asked Mr. Thrasher to compare the 2 columns and
determine if they match. Mr. Thrasher said he would need more
time for a proper comparison but he could see three items that
did not match. Mr. Brandenburg suggested that perhaps, since Mr.
O'Hare prepared this, it should be presented in his testimony
and Attorney Roeder agreed and said he would bring it forward at
that time. Mr. Roeder then asked how one would go about
requesting a change be made in the Code to which Mr. Thrasher
replied that a letter to the Town Clerk requesting to discuss
the matter but the ultimate procedure is to have a
recommendation from the ARPB which would then be forwarded to
the Commission for a final vote. Mr. Roeder pointed out that it
has been said that the style map in the Code is incorrect and he
questioned why it has not been updated to which Mr. Thrasher
replied that he has requested that and it is in process.
Mr. Randolph reminded that Mr. Tobias had said he would be
available to come at 3 P.M. and he asked Mr. Roeder if he would
be ready for him in 10 minutes to which Mr. Roeder said he did
not want him here while questioning Mr. Thrasher and he did not
know when he will be finished with him.
Mr. Roeder asked that if someone wanted to build a new house who
decides what style he can build to which Mr. Thrasher replied it
would be the owner and the boards would make the determine if
the features were in keeping with the chosen style. In answer to
Mr. Roeder he went on to say the same holds true when making
W.
improvements. Those improvements should match the architectural
style of the home.
Mr. Roeder handed a letter to Mr. Thrasher that had been faxed
to Mr. Roeder dated December 27, 2012, signed by Mr. Thrasher,
regarding 2520 Ave. Au Soleil, subject being Code Violation
Letter dated November 5, 2012 delivered to Mr. O'Hare on
November 10, 2012. It stated that the Town had received on
December 11, 2012, a written document from the Delray Beach
Permit Department stating that on November 14, 2012 the expired
permit had been renewed which was shortly after Mr. O'Hare had
received the Town's notice of violation and that the expired re-
roofing permit no longer existed. Mr. Roeder pointed out that a
valid permit then existed to May 14, 2013. He entered this
letter as Respondents Exhibit 16 with no objection.
Mr. Roeder then entered Respondents Exhibit 17 with no objection
and asked Mr. Thrasher to read the portion that was not
highlighted. This was a letter from Mr. Thrasher dated September
18, 2015 to Mr. O'Hare referring to roofing permit #11-135146.
This portion stated "The last inspection on this permit was 4-
26-12." Mr. Roeder pointed out the expiration date would have
been 10-26-12. Mr. Thrasher stated confirmation of this
information would be referred to Delray Building Department.
Mr. Roeder asked if Mr. Thrasher could remember what reason Mr.
O'Hare gave at the Appeal Hearing for wanting a metal roof to
which Mr. Thrasher replied it was that the roof framing would
not support a heavy tile roof as stated in a letter from an
engineer dated December 2012 that was presented at the hearing.
He then asked if the Town had ever rejected any other
certification to which Mr. Thrasher replied that he did not
think so but was not sure. He believed he may have rejected one
on a drainage certification.
Attorney Roeder then handed Mr. Thrasher a document and asked
him to describe it to which Mr. Thrasher replied that it is an
amended response to Mr. O'Hare's Public Records Request, Gulf
Stream Number 2056, Violation of 42-29. He was then asked to
read the 2nd sentence of the request information, "The most
recent record of any notice of violation or notice of hearing
sent to a resident of an occupied property which cited any
alleged violation of Town Code Section 42-29, Construction
Abandonment, formerly codified as Section 42-30, other than sent
to the property located at 2520 Avenue Au Soleil. Response:
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Please be advised that no such records exist. Mr. Roeder said he
will address this more with some of the other witnesses.
Mr. Roeder then asked Mr. Thrasher if he remembered any of the
circumstances associated with Hurricane Isaac that hit in 2013
and if he had any concern for the O'Hare family who had only a
partially completed roof at that time. Mr. Thrasher replied that
he doesn't remember any Hurricanes that hit here since 2011 but
that he has always had concerns about the family living there
with just a partial roof. Attorney Roeder further asked if he
knew that Mr. O'Hare could not get insurance on the house or
obtain financing with an unfinished roof to which Mr. Thrasher
replied that he had no confirmation of this.
Attorney Randolph questioned if he should call Mr. Tobias as he
is 10 minutes away and Attorney Roeder stated he would like to
get a few more things on the record and may not have time for
Mr. Tobias at this hearing date. Attorney Randolph asked if it
would be proper for him to contact Mr. Tobias to see if he would
be available on January 19th to which Mr. Brandenburg replied
that it is the proper thing to do.
Mr. Roeder asked Mr. Thrasher if he is aware of the litigation
status between Mr. O'Hare and the Town to which he replied that
he has a general understanding of that and Mr. Roeder asked what
that general understanding is. The Special Magistrate asked the
relevance of that question to this code enforcement matter and
Mr. Roeder said they are going to show there are other reasons
for the code enforcement matter other than just violation and
the Special Magistrate asked that thy continue with the
questioning. Mr. Thrasher said that there is a federal case
that is being appealed and several public records law suits he
has filed against the town but he did not know the status of
those. Mr. Randolph asked if they could show Mr. Thrasher a copy
of the federal law suit and Mr. Roeder said he did not have it
but could have it for the next session and recall Mr. Thrasher.
Mr. Brandenburg directed that Mr. Roeder ask the question and
that Mr. Thrasher reply with whatever he knows and that will be
the end of the questions. Mr. Roeder asked if there are any
cases other than the public records cases and the federal case,
and if he knew the basis for the federal case. Mr. Thrasher
said he did not know of others and did not know the basis for
the federal case and appeal.
Mr. Roeder said he reserves the right to recall Mr. Thrasher and
Mr. Randolph said he did not believe they had a right of
rebuttal. Mr. Brandenburg said he will consider that at the time
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an attempt is made to recall him. Mr. Roeder and Mr. O'Hare made
further arguments with being able to recall Mr. Thrasher and Mr.
Brandenburg stated he has no intentions of considering this
until an attempt is made to recall him.
Mr. Roeder said, in answer to Mr. Brandenburg, he had nothing
further in this session and Mr. Randolph said he would like to
cross examine Mr. Thrasher as he believed he would be unable to
call him back in the next session.
Attorney Randolph showed Mr. Thrasher an amended appendix from
case # 4D13-621 which was from the 4th District Court of Appeal
and asked him to identify the 2 documents that are tabbed with
yellow stickers in the petitioner's appendix. Mr. Thrasher said
this is a revision request by the City of Delray Beach dated 11-
15-11 in regard to permit # 11-135146 for the property located
at 2520 Avenue Au Soleil, Chris O'Hare, and in the description
it states "customer wants to change to metal roof". Mr. Randolph
then asked what the next tabbed exhibit in the petition that was
before the 4th District Court of Appeals and Mr. Thrasher said it
is a letter dated 12-14-11 from Terrance Lunn, a licensed
professional engineer that states that on 12-13-11 I inspected
the existing roof framing at the referenced address. The
existing roof framing will not support the design loads of a
concrete or clay tile roof. The lightest roofing system possible
is needed. Mr. Randolph said that both Mr. O'Hare's request for
a metal roof and the letter from the engineer were considered as
part of the record before the 4th District of Appeal to which Mr.
Thrasher replied, yes. He then asked Mr. Thrasher if he
considers that dispositive of that issue to which he also
replied, yes. Attorney Randolph then asked Mr. Thrasher if he
had seen any serious attempts on the part of Mr. O'Hare to
comply with the terms of the Town Code in regard to his roof to
which the reply was, no. The next question from Mr. Randolph
was, how long Mr. O'Hare's roof had remained in this unfinished
state to which Mr. Thrasher answered, approximately 4 years. Mr.
Randolph reminded Mr. Thrasher that he had been asked through a
public records request whether anyone else has been noticed for
a violation of Section 42-29, for abandonment of a permit. He
then asked Mr. Thrasher if he had ever known another situation
where a project has remained incomplete for a period of 4 years
in the town to which he replied, no.
He further reminded that he had been asked several questions
regarding the date of inspections and whether the 180 days had
expired after the last permit inspection. Mr. Randolph asked Mr.
Thrasher if he would defer to the Building Official in Delray
21
Beach in regard to that or did he have independent knowledge of
that. Mr. Thrasher answered that he would defer to the Building
Official in Delray. Attorney Randolph, referring to the last
attempt by Mr. O'Hare to change his roof, recalled that Mr.
Thrasher had given an opinion that he could not do so because
the permit had expired and also that what he was proposing was
not in accordance with the Code. Mr. Thrasher replied that is
correct. Mr. Randolph then asked if Mr. O'Hare had ever filed an
appeal to this September 18, 2015 and Mr. Thrasher stated that
he had not filed for an appeal nor for a variance.
Attorney Randolph asked Mr. Thrasher if Section 42-39 had a
provision stating that when a permit has expired it will be
considered prima facie evidence of an abandonment and if it also
provides in Sec. 42-29 that if a project is abandoned it should
go back to the condition it was in prior to the giving of the
permit and Mr. Thrasher said that this is true. Mr. Randolph
pointed out that if Mr. O'Hare were required to comply with
Section 42-29 he would be required to go back to the tile terra
cotta roof that had existed at the time and Mr. Thrasher agreed.
In reply to a question from Mr. Randolph, Mr. Thrasher said that
Mr. O'Hare has made no attempt to come back for a terra cotta
tile roof that he had torn off.
Mr. Randolph asked how many public record requests Mr. O'Hare
has made to the town and how many law suits he has filed to
which Mr. Thrasher replied he has made several hundred record
requests and he estimated 20 public record law suits.
Mr. Thrasher confirmed that the Town has refrained from citing
Mr. O'Hare in the past in regard to these various suits before
the Circuit Court and the Fourth District Court of Appeal for
the metal roof and the solar sandwich roof.
Attorney Randolph verified that Mr. Thrasher has no legal
opinion in regard to the Florida Building Code Section 105.4.1.3
in regard to the tolling as a result of legal process and Mr.
Thrasher repeated that is true.
Attorney Roeder objected, claiming there was much leading with
no corrections to Mr. Randolph and Mr. Brandenburg overruled the
objection stating "there's a difference between leading a
witness and testifying as a lawyer. I did not notice Mr.
Randolph trying to testify himself."
Special Magistrate Brandenburg declared this session of the
hearing closed and reminded that the hearing would be continued
22
on December 14, 2015 at 12:30 P.M. He added that he would be
taking the exhibits with him and would bring them back for the
next hearing.
2Z2� f/ /
Rita L. Taylor
Town Clerk
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