HomeMy Public PortalAbout03 07 16 MinutesMINUTES OF THE CODE ENFORCEMENT HEARING HELD BY THE CODE
ENFORCEMENT SPECIAL MAGISTRATE OF THE TOWN OF GULF STREAM ON,
WEDNESDAY, MARCH 7, 2016, AT 10:00 A.M. IN THE WILLIAM F. KOCH, JR.
COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM,
FLORIDA. THIS IS A CONTINUATION OF THE HEARING THAT COMMENCED ON
DECEMBER 4, 2015, WAS CONTINUED TO DECEMBER 14, 2015, CONTINUED TO
JANUARY 20, 2016. CONTINUED TO JANUARY 28, 2016, AND AGAIN TO MARCH
7, 2016
The Special Magistrate, Gary Brandenburg, called the meeting to
order at 10:00 A.M., and reminded that there was a Notice of
Violations issued to Christopher O'Hare, those being; 1. Section
42-29, Construction Abandonment, failure to complete
construction within the timeframe of the building permit 2.
Section 70-238 Roofs which calls for flat, white thru & thru,
smooth, uncoated tile but no tile has been installed over the
underlay 3. Section70-99 Roof Design, Slope & materials (3)
prohibiting inconsistent roofing materials visible from exterior
of property or with any other house in town. He further stated
that this is a quasi-judicial proceeding with all of the
testimony given under oath and that the rules lawyers usually
use in the court room do not generally apply to this type of
proceedings and as long as the materials presented are relevant
and not overly repetitious, he will hear them and give them the
weight they deserve. He then asked for those who will testify
to stand and raise their right hand to be sworn. The Special
Magistrate reminded that Mr. Randolph had presented his case and
that Mr. O'Hare had started his.
Mr. Brandenburg asked that those presenting identify themselves
and Mr. O'Hare said he would be representing himself pro se
with Attorney Giovanni Mesa assisting him and Attorney Roeder
assisting Attorney Mesa. Attorney John Randolph said he is
representing the Town of Gulf Stream.
Mr. O'Hare stated his first two witnesses would be Mr. Lou
Roeder and Sharon White.
Attorney Janice Rustin, Delray Beach City Attorney, stated the
Delray Beach employees, Steve Tobias, Kris Buzen and William
Kramer, are being produced in a show of good faith in that they
were not properly served but they are unable to comply with the
duces tecum portion of the subpoena in that they were served
after the close of business on Friday. She requested that Kris
Buzen testify before noon as she has a scheduled time off in the
afternoon. Mr. Brandenburg, with Mr. O'Hare in agreement,
directed that Kris Buzen be questioned before noon with the
other employees being allowed to leave and return at 1:00 P.M.
Mr. O'Hare stated he would not be needing Mr. Tobias so he can
be excused. The witnesses were asked to leave the room and to
return when called. Attorney Rustin said she would not be
testifying and would like to remain in the room and her request
was granted.
Mr. O'Hare said his first witness is Mr. Roeder but he made an
official objection that the ex parte activity of Mr. Randolph
after the last hearing was intended to bias the Special
Magistrate against him, and he believed the Magistrate is biased
and he asked him to respectfully recuse himself until such time
as another Magistrate that is not biased is chosen.
The Magistrate asked what ex parte communication he was
referring to and Mr. O'Hare replied it was the video tape he was
looking at with his attorneys that showed Mr. Brandenburg coming
off the stand and saying "that's a first for me, ha, he, we
should go to the hospital and see how quickly he gets out" and
Mr. Randolph saying "I wish they had taken his blood pressure
because I'm sure it would have been normal".
Mr. Brandenburg told Mr. O'Hare that his motion was denied,
adding that he had had a medical event that day and he
appreciated the seriousness so nothing that occurred as a result
of that medical event has biased him in any way and he would not
consider in any way comments that are made to him in that regard
as in any way prejudicing him, just like when Mr. O'Hare called
him on Saturday with an ex parte communication begging him to
issue subpoenas at the last minute. He said he did not consider
that biasing him either on Mr. O'Hare's matter. Mr. O'Hare was
told to please proceed.
Mr. Roeder took the stand and said he is an Attorney and
Property Consulting Firm of Real Property Consultants. He
identified the document handed to him by Mr. O'Hare as the
Interlocal Agreement between the Town of Gulf Stream and the
City of Delray Beach and it was admitted as Respondents Exhibit
#19 with no objections. Mr. Roeder identified the next document
Mr. O'Hare handed him as a copy of Code Chapter 70, Article
VII., Division 2 Spanish Mediterranean Revival Style and added
that he had seen it before but didn't remember if he had
downloaded it from the Town's website or not. It was admitted as
Respondents Exhibit #20. Mr. O'Hare then offered a document
related to Rooftec and Attorney Randolph objected explaining
that he believed this should be entered through the Rooftec
testimony so he would have an opportunity to cross examine. The
Special Magistrate stated this document, having to do with roof
repairs to the police station building would be entered as
Proposed Respondents Exhibit #21 and not entered in the record
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awaiting testimony to explain what the document is about. Mr.
O'Hare then offered a Rooftec invoice related to the Gulf Stream
Town Hall and stated he would have Mr. Mulevey lay the
foundation during his testimony and the Magistrate labeled it
Proposed Respondents Exhibit #22 and Attorney Randolph requested
a copy of it. Mr. Roeder was then shown a document from the City
of Delray Community Improvement and he said he downloaded it
from the Gulf Stream Website. Attorney Randolph expressed the
same objection and Mr. Brandenburg explained to Mr. O'Hare that
just having someone admit they downloaded it from the website
does not provide a foundation to have it admitted into evidence.
He said this would be known as Proposed Respondents Exhibit #23
and it would be evaluated at such time as a foundation of its
importance is presented. Mr. Brandenburg then admitted a copy of
Gulf Stream Ordinance 04/4 as Respondents Exhibit #24 to which
there was no objection. The Special Magistrate admitted a copy
of the "Motion For Sanctions Under Rule 11" as Respondents
Exhibit #25 in that Mr. Randolph had no objection as to its
authenticity. Mr. Roeder stated he had downloaded a portion of
the Nuisance Section, Chapter 22 of the Gulf Stream Code and
Attorney Randolph verified that it is a portion of that section
after which Mr. Brandenburg admitted it as Respondents Exhibit #
26. Mr. Roeder testified that he had printed this from the
Florida Building Code Website, a copy of Section 105 of the
Florida Building Code. Mr. Randolph said he could not testify as
to the authenticity but to go ahead and admit it and it was
labeled Respondents Exhibit #27. Mr. Roeder testified that this
permit history for inspections at 2520 Avenue Au Soleil is a
Delray document given to him by Attorney Janice Rustin and
Attorney Randolph objected in that it should come in through the
appropriate witnesses. He added that there will be Delray
employees testifying and he is certain this is not a complete
document. Mr. Brandenburg admitted the document as Respondents
Exhibit #28 with the notation that Mr. Randolph does not believe
it to be a complete document. Mr. Roeder said the next document,
a 1 page e-mail with a one page attachment had been received by
him from Delray Beach. Mr. Randolph noted that this is an e-
mail to Rooftec and that Mr. Mulevey will be testifying later
and he would like to have an opportunity to address this at that
time. The Special Magistrate listed this as Proposed Respondents
Exhibit #29. Mr. Roeder acknowledged that at 3 different times
he had down loaded copies of the permit status for 2520 Ave. Au
Soleil from the Delray Beach Website and that the 3 copies Mr.
O'Hare is asking to have admitted are the copies he downloaded.
Mr. Randolph said he had no objection but believes they should
come in through Delray testimony since they are Delray records.
These were marked as Respondents Exhibit #30. Mr. O'Hare
presented an e-mail from Mr. Roeder to him regarding an e-mail
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from Steve Tobias, copy to Kris Buzen and from Tobias to Roeder,
copy to O'Hare on July 3, 2013. Mr. Roeder said it is an e-mail
he had sent to Mr. O'Hare with a copy of an e-mail he had
received from Kris Buzen which had an e-mail stream attached to
it from Mr. Tobias. Mr. Brandenburg stated he did not understand
the relevance of this document and Mr. O'Hare stated it is
relevant to the testimony of Kris Buzen. Mr. Brandenburg marked
this as Proposed Respondents Exhibit #31. Mr. Roeder
acknowledged he had researched various architectural styles and
printed these 4 pages that Mr. O'Hare was showing him. Mr.
O'Hare said he intended to discuss these with Mr. Minor in his
testimony. Mr. Brandenburg marked the 4 as Proposed Respondents
Exhibits #'s 32A,B,C & D. Mr. O'Hare then showed Mr. Roeder a
picture of the home at 2520 Ave. Au Soleil that was taken before
the previous tile had been removed and Mr. Roeder said that he
had found on line in a real estate advertisement and it is the
east elevation of the home. The Magistrate entered this as
Respondents Exhibit #33.
Mr. O'Hare asked Mr. Roeder if he was aware that he had
purchased 4 different homes in Gulf Stream to which Mr. Roeder
replied, yes. Mr. O'Hare then asked if 503 Middle Road, 2516
Ave. Au Soleil, and 935 Orchid Lane all had white flat tile
roofs and had he ever heard him complain about them to which Mr.
Roeder replied he knows they all had white tile roofs and he had
not heard Mr. O'Hare complain about them. He then asked Mr.
Roeder to describe the litigation history of 2520's roof with
regard to judicial process. Mr. Rader stated that it started
with an appeal by Mr. O'Hare when his metal roof was denied. He
said the first hearing of the appeal was on April 13, 2012 and
May 11, 2012 and was denied by the Town; in June of 2012 O'Hare
filed a writ of cert. Mr. Randolph stated he would be happy to
take judicial notice on this activity and has presented
documents to show there have been 4 different court actions on
this matter and Mr. O'Hare said he had no objection as long as
the record shows this has been ongoing since April of 2012 to
date. Mr. Brandenburg assured this would all be noted. Mr.
Roeder stated the 4 cases Mr. Randolph referred to are all State
cases and there is a federal case still pending.
Mr. O'Hare showed Mr. Roeder a copy of Exhibit R19, the
Interlocal Agreement, and asked him to state the date on it to
which Mr. Roeder replied that it is September 30, 2009. He then
asked Mr. Roeder for the stamped filing date which was Feb. 11,
2013. He then asked if he was familiar with Statute 163.01 that
says prior to its effectiveness it must be filed with the Clerk
of the Court of each county of the parties to the Agreement.
When asked what effect that Statute has on the Agreement Mr.
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Roeder said the agreement would not be effective until it was
filed with the Clerk.
Mr. O'Hare stated he had no more questions.
Mr. Randolph showed Mr. Roeder a copy of a Memorandum of
Understanding dated November 16, 2009 between the City of Delray
Beach, the County of Palm Beach and the Town of Gulf Stream. He
called attention to paragraph 1B which states the City official
will accept all applications for development with the Town after
November 15, 2009. Mr. Roeder acknowledged he had not seen this
document before. The Special Magistrate marked this Proposed
Town Exhibit #15 as Mr. O'Hare objected to its being admitted in
that no one has testified to its authenticity. He then asked Mr.
Roeder if he sees that this document provides that regardless if
the Interlocal Agreement was not recorded until 2013 that the
parties had an agreement that the City official of Delray Beach
will accept applications for development within the Town after
November 15, 2009. He replied that he sees that is what it says
but he has not reviewed the document as to authenticity or
application.
Mr. Randolph asked Mr. Roeder to compare the document, which is
the Florida Building Code, with the document that was admitted
into evidence as 105.4.1.3 and advise as to whether that is the
full document, pointing out that what had previously been
presented was a portion of the Florida Building Code. He further
asked that this be entered and Mr. O'Hare had no objection. Mr.
Brandenburg labeled the document Town Exhibit #16.
Attorney Randolph, referring to his previous mention of the
group of court cases regarding the metal roof that he had
admitted, asked Mr. Roeder if he recognized the Petition for
Writ of Mandamus that is signed by Mr. O'Hare relating to the
metal roof. Mr. Roeder said this document seems to be complete
but he couldn't say for sure without his copy. He said he did
not recognize the cover e-mail as he did not receive that. Mr.
Randolph explained that the cover e-mail is the decision of the
court. Mr. O'Hare said he has no objection at this time to
admitting this document but reserves his objection until he
knows this is a complete document. The Magistrate labeled this
document Town Exhibit 17.
Mr. Randolph then requested Mr. Roeder look at the document from
the City of Delray Beach, Application for Miscellaneous
Information Maintenance and to read the highlighted portion.
The Magistrate marked this as Town Exhibit #18. Mr. Roeder read
"Per Steve, no other extensions. If another extension is
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requested, the homeowner will have to file a new permit. KEB 7-
3-13 this permit was renewed in error. On 6-21-13 per the above
note permit has been revoked to disallow any further activity.
Steve has spoken to contractor of record and homeowner. They
have been notified." Mr. Randolph asked if he had seen this
document before to which Mr. Roeder replied that he didn't
recall but it may have been a part of what was submitted by Mr.
Tobias but he would have to see his own notes. Mr. O'Hare
objected to the document saying it is not complete and may have
been contradicted in following pages. Mr. Randolph reminded
that Mr. O'Hare would have the opportunity to put anything else
in that contradicts this. Mr. Brandenburg admitted this document
over objection.
Attorney Randolph had no other questions.
Mr. O'Hare called Sharon White. Attorney Rustin pointed that it
was nearly 11:30 A.M. and that Kris Buzen has not been called.
She reminded that Kris has scheduled time off this afternoon and
wondered if she could be called at this time.
Mr. O'Hare said he had planned to call Mr. Mulevey since he is a
small business man and needs to get back to his business whereas
Ms. Buzen is a government worker getting paid regardless what
she does which would seem to make his time more valuable.
Mr. Brandenburg pointed out that he wasn't calling Mr. Mulevey
he was calling Sharon White so we are calling Ms. Buzen at this
time so she can get on her way.
Ms. Buzen confirmed she had been sworn in and that she is
employed in the Building Department of the City of Delray Beach.
Mr. O'Hare asked if she has had any legal training to which she
replied, no. He then asked if she remembers testifying in the
hearing in the 15th Judicial Circuit last Thursday in the matter
of O'Hare vs the City of Delray Beach to which she replied, yes.
He then asked if she is familiar with Statute 837.021 which
states "except as provided in Section 2, whoever makes a false
statement which he or she does not believe to be true under oath
in an official proceeding regarding any material matter commits
a felony of the 3rd degree" and she replied "I am now."
Attorney Rustin objected to this line of questioning as it
argumentative and is designed to frustrate the witness who is
appearing in good faith. Mr. Brandenburg asked Attorney Rustin
if she is here to represent Ms. Buzen since she is an employee
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of Delray Beach to which she replied she is. He then asked her
to come forward and sit beside Ms. Buzen.
Ms. Buzen repeated that she knows it now but did not know the
statute and certainly would not lie under oath.
Mr. O'Hare asked if it is correct that she had said in the
hearing that she had worked for the City for 7 years to which
she replied that she had worked in her present capacity for 7
years. He then asked if she supervises the permitting staff to
which she replied, yes. Mr. O'Hare further asked if she had
testified that Delray had taken over the permitting for Gulf
Stream on November 16, 2009 and that Delray maintains a file for
each property in Gulf Stream that applied for a permit since
November 16, 2009 and she answered yes to both questions. He
asked if, within that file, all backup information for each
permit is kept therein and Ms. Buzen replied, yes. He then asked
if an engineer's letter would be considered backup information
to which she again replied, yes. Mr. O'Hare asked if she had
testified that the Interlocal Agreement did not include any Code
Enforcement issues and that a stop work order would be a code
enforcement issue and she answered yes.
Mr. O'Hare then asked Ms. Buzen to examine Exhibit R29 and asked
if she had typed the letter for Mr. Tobias and the answer was
yes. He then asked if it was dictated to her or given to her in
written draft and she replied that she didn't recall and further
acknowledged that she had typed it on the computer. He asked if
she still had that computer and was she familiar with the words
meta data or hard drive memory to which she replied that she has
the computer and is vaguely familiar with those words. She
further explained that she just got a new computer but all of
the files has been transferred to it. Mr. O'Hare asked for the
date that the letter had been typed and was told it was July 3,
2013. He then asked if she knew about the retention law for
records being 10 years and she advised that they look to the
City Clerk for that information. Mr. O'Hare asked if she had
testified that there is no proof that the letter had been sent
to which she replied, yes.
Mr. O'Hare then handed Ms. Buzen Exhibit 30 and asked her to
explain what it is to which she replied that it is a snapshot of
their on-line system for the permit history for the address
given. He then asked if she had testified that the permit
verification is live and connected to the Cities AS -400 system
to which she replied, yes. He further asked if she testified
that if a permit which is labeled active is in approved or AP
mode because it is open for inspection, has not been closed, has
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not expired and has not received a certificate of occupancy and
she replied, yes. He then asked that she read the dates on the
top left corner of each of the documents. She read 7-9-13, 11-
17-15, 3-5-16. He then asked her to read the highlighted items.
She read: alteration interior and exterior residential approved
4-3-13, status reads approved and the next page status reads
closed and the next page is closed and the date at the top of
the last page is 3-5-16. Mr. O'Hare asked if it is her
understanding that someone changed the status on the interior
renovations and she said they would have done so on 8-17-15.
Mr. O'Hare then asked for the status on all 3 pages of the roof
permit to which Ms. Buzen replied ? . Mr. O'Hare asked
if he could assume someone changed the status on the interior
renovation but didn't change status on roof permit. She replied
that not knowing why the status on the interior changed, she
could not answer off hand but does know that when the staff has
time, they go thru expired permits and close as necessary. He
then requested that she look at Exhibit R28, the re -roof
existing structure at 2520 Ave. Au Soleil, and the 2 dates that
are highlighted. He asked what the 2 dates signify to which she
replied that a fee was paid to renew the permit on those dates.
Then on 11-4-12 the permit was renewed, he asked and she
replied, yes. Mr. O'Hare then asked that she describe Exhibit
R31 and she answered that it appears to be a records request
made on July 3, 2013 that was sent from Mr. O'Hare to Steve
Tobias requesting. . . .Attorney Ruskin did not believe Ms.
Buzen could reply to this as her name is not on it, she did not
receive it and she would only testify these are words on a page.
She cannot testify as to the authenticity of the e-mail in that
she is not the sender or the receiver, Attorney Ruskin said and
Mr. Brandenburg was in agreement. Mr. O'Hare then asked Ms.
Buzen if Mr. Tobias would be involved in looking up public
records to which she replied he would give it to staff. He then
asked if she brought any of the records that were requested on
the duces tecum subpoena to which she responded that she was
just advised to appear at 8:30 A.M. this morning so has nothing.
In cross examination Attorney Randolph asked if she knows who
Steve Tobias is and, as Building Official, does he have the
authority to oversee the issuance of permits and retracting of
permits to which she replied, yes. Mr. O'Hare objected saying it
calls for legal conclusion. Mr. Randolph pointed out that she
has worked in this position for 7 years and should know the
extent of his authority. The Magistrate over ruled the
objection. Attorney Randolph then asked that she read from the
transcript of Mr. Tobias' testimony at the bottom of page 29 and
the top of page 30. "The original permit looks to be issued on
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8-30-11, it was a renewal request on 11-14-12 which was granted
and then on 6-24-13 another request. There was no activity from
the first request to extend the permit so there was a second
request which was denied. It was given and then denied" she
read. He then showed her a document, Town Exhibit T18, similar
to that shown as Exhibit R28 and asked if she could identify it.
She said it is a print screen of the Delray miscellaneous notes
that are in accordance with that particular permit number and
that part of her responsibilities is to oversee the intake of
these types of things. Mr. Randolph then asked her to read the
highlighted portion as follows: "Per Steve, no further
extensions. If another extension is requested the homeowner will
have to file another permit. On 7-3-13 this permit was renewed
in error on 6-21-13 per the above note. Permit has been revoked
to disallow any further activity. Steve has spoken with the
contractor of record and the homeowner." He then asked if, in
her position, she had any objection or sees anything contrary to
what he is saying in the document to which she replied, no.
Mr. O'Hare, in re -cross examination, ask Ms. Buzen what is
required to renew a permit and was told just a fee was required,
based on a case by case basis. He then asked if the fee he had
paid to renew had been refunded when the renewal was cancelled
to which she replied that she could not say in that any refunds
would be handled through the finance department. Mr. O'Hare
inquired if it is within her duties to advise the applicant
and/or contractor that the permit has been revoked or cancelled
to which she replied, no. When Mr. O'Hare asked her how many
times Mr. Tobias had refused to renew permits due to code
changes Ms. Buzen said she did not know but that it does happen.
Mr. O'Hare then asked her if there had been times a permit had
gone beyond 180 days without an inspection and the work
continued without a renewal. Ms. Buzen said that it is possible.
Mr. O'Hare asked if she heard Mr. Tobias tell the contractor the
permit had expired to which she replied she did not recall but
that Mr. Tobias had told her to make the notation.
Mr. O'Hare next called Sharon White, 28 Douglas Drive, Ocean
Ridge, FL. and who is employed with Pineapple Grove Designs that
is owned by Mr. O'Hare as a sculptress and a mold maker. Mr.
O'Hare handed her Respondents Exhibit #R34 and asked her to
describe it to which she replied it appeared to be a letter
confirming an inspection and a number of attachments including
pictures all bearing different dates and she confirmed that she
had delivered this to the Delray Beach Building Department for
Mr. O'Hare. In answer to a question from Mr. O'Hare she said she
had visited the Building Department at other times and that her
mother had worked in the Code Enforcement Department in Delray
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for a number of years. Mr. Brandenburg admitted this exhibit for
purposes that Mrs. White recognized it and delivered it to
Delray.
Mr. John Mulevey was then called by Mr. O'Hare. He gave his
address as 1121 N.W. Lake Drive and that he is a self-employed
roofing contractor. He confirmed that his company is Rooftec and
that he has done work on the Town Hall and the Police Department
Building. He was shown Respondents Exhibit #21 which included
pictures of a roof repair that was made on the Police Building
in 2010 and had a copy of a check attached as well as
Respondents Exhibit #22 which was an Invoice for work on the
Town Hall with pictures attached. Mr. O'Hare asked if pictures
were given to the inspectors and Mr. Mulevey said if they asked
for them but they are mostly for his files. Mr. O'Hare then
asked if he had found that inspectors do most of the inspections
from the ground to which Mr. Mulevey replied that contractors
are required to leave a ladder on the premises or the inspectors
don't even stop. Mr. O'Hare then showed Respondents Exhibit #23
which was a Delray Beach Document, and showed a fee of $100.00,
and Mr. Mulevey said he was not sure if this covers a renewal or
an inspection fee. The witness was then shown Respondents
Exhibit #36 which he identified as a local engineer's letter in
lieu of the Building Department making the inspection on 11-14-
12. He was then shown Respondents Exhibit #37 showing the roof
metal was properly installed as inspected by the engineer Steve
Worter on July 20th, 2013 and asked if this represented work in
progress on the roof at that time to which he replied, yes.
Mr. O'Hare showed Mr. Mulevey a stack of e-mails with various
dates with reference to the roof work in progress on 2520 Ave.
Au Soleil some of which authorized inspections by an outside
engineer and additional work on the underlay that was in place.
One of the e-mails, Respondents Exhibit #29, was from Mr. Tobias
advising that the permit had expired. Mr. Mulevey was asked if
he remembers getting that one to which he replied that he
couldn't say for sure. Mr. O'Hare observed that Mr. Mulevey
would not have proceeded with work if he had received such and
Mr. Mulevey said that his first responsibility is to protect the
inside and if something had to be done to accomplish this, they
may have done something temporary, but not final, without a
valid permit.
In cross examination Attorney Randolph asked if Mr. Mulevey had
been involved in making a determination as to whether or not the
structure would not support a tile roof to which he replied that
he had not been involved. He then asked him if he knew who
Terrance Lunn is to which Mr. Mulevey replied he did not. Mr.
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Randolph then asked if a determination could be made as to the
strength of a roof structure by just standing on the ground and
looking at it. Mr. Mulevey said in his opinion it would be
necessary to go inside and examine the trusses in the attic. The
Attorney then commented that he noticed in the e-mails Mr.
O'Hare had asked him for the price of a metal roof and he asked
Mr. Mulevey if he remembered what that was to which he replied
that he did not but he knows they are very close.
Mr. Randolph then asked Mr. Mulevey to refer to the e-mail
package, in particular the one dated July 17, 2013 @ 9:39 A.M.,
an e-mail from him to Chris O'Hare advising him of the
inspection history to that date. He asked Mr. Mulevey to read
those 3 things in that e-mail which were 9-6-11 sheathing & re -
nail, 4-26-12 tin -tag, 11-30-11 in progress flat deck and those
are just the inspections Rooftec had done. Mr. Randolph added
that it further states at that point Mr. Mulevey had stated he
did not know what other type of inspections to call for. Mr.
Randolph further confirmed from Mr. Mulevey that at that point
he did not know what would be going on the roof, some type of
tile or a metal roof.
Mr. Mulevey was then asked if he was involved in removing the
previous tile and if he remembered what it was to which he
replied that he was involved and it was Spanish S style. Mr.
Randolph then showed Mr. Mulevey Town Exhibit #19, a sample tile
that was marked as Artezanos Tapered Mission Barrel and a
Roofing application that had been recently submitted by Mr.
O'Hare for approval but was not approved. He next showed 2
pictures of the house at 2520 Ave. Au Soleil, Respondents
Exhibits #13 and #33, before the roof had been removed and asked
Mr. Mulevey if the Artezanos sample Barrel tile is like that
shown in the pictures to which he replied that it was not. Mr.
Randolph then showed Town Exhibit #20, a Spanish S concrete tile
"Barcelona Gold Dust color" made by Boral and Mr. Mulevey said
that is the closest to the tile that was removed. He added that
there were records in his office that would show exactly what
was removed. Mr. Randolph then placed into evidence Town Exhibit
#21, a Delray Re -roof application. Mr. Randolph then asked to
have a Palm Beach County Roofing Application dated 11-24-99 W/
supporting documents placed in evidence and it was given Town
Exhibit #22. Attorney Randolph asked Mr. Mulevey if Monier Tile
made any tile other than concrete to which he replied that they
are no longer in business but when they were, they only made
concrete. He added they have been purchased by Boral who only
make concrete tile also.
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In re -cross examination Mr. Mulevey confirmed that had said he
relies on an engineer's opinion regarding the structural
soundness and for that determination, the inspection would need
to be done from the inside where the trusses can be examined.
Mr. Mulevey further stated that if they noticed some of the
sheathing was deteriorated, they would tear that off at which
time they would be able to view the trusses from the top and
call for an engineer's opinion.
Mr. O'Hare asked him to explain what he meant when he said
"sealing a roof was not part of the permit" to which Mr. Mulevey
replied that if a permit had expired and it became necessary to
reseal the roof, he would go ahead and do that in spite of the
lack of a permit but would not go beyond just the sealing until
the permit problem was resolved. Mr. O'Hare believed that the
average person would not be able to tell if a roof was barrel
tile, Spanish S or Pan tile and Mr. Mulevey agreed.
Attorney Randolph on re -cross confirmed that Mr. Mulevey had
stated that from looking at pictures of the house prior to the
tile being removed, it appears that the Barcelona Spanish S most
closely resembles what was removed. He then showed Mr. Mulevey a
manufactures brochure that shows the Barcelona gold dust tile
and asked if it appears to be the same as the tile in the
picture of the house. Mr. Mulevey said he could not say yes or
no but can say they are definitely similar. Mr. Randolph then
asked to place the Barcelona 900 document in evidence and Mr.
Brandenburg assigned it Town Exhibit #T23. Mr. O'Hare objected
to this entry as he believed there had been no foundation for
it. The Special Magistrate pointed out the witness just
testified as to certain aspects of the roof and he would let the
exhibit in. Mr. Randolph then showed Town Exhibit #T18, a
Delray Beach document, to Mr. Mulevey and asked him to read the
content which was a notation that an extension had been granted
in error and was being revoked to disallow any further activity
on a particular permit, and that the contractor and homeowner
had been notified. Mr. Randolph asked if there was anything
inconsistent with this procedure on the permit to which he
replied that this is the first time he had seen this but
understands the work could not go forward. Attorney Randolph
then asked Mr. Mulevey if he understood the 180 day expiration
provision required through the Florida Building Code that is
placed on permits to which he replied that he is aware of that.
Mr. O'Hare on re -cross asked if Mr. Mulevey thought the average
person who had removed that roof 4 years previously would know
to put that same roof back or would they just put barrel tile of
12
any type to be the same. Mr. Mulevey replied that it would all
be considered Spanish Architecture tile.
Mr. Brandenburg excused the witness and announced the hearing
would adjourn for lunch at this time, 1:05 P.M., and would
reconvene at 2:10 P.M.
The Special Magistrate re -opened the hearing at 2:10 P.M. and
directed Mr. O'Hare to call his next witness, that being William
Kramer, currently the building official for the City of Delray
Beach and Town of Gulf Stream. He gave his address as 301
Northwest 22nd Ave., Boca Raton, Florida. Mr. O'Hare said the
reason for this hearing is to determine if a roofing permit has
or has not expired. Mr. O'Hare showed Mr. Kramer Respondents
Exhibit #R19, an Interlocal Agreement for plan review and
inspection services to be performed by Delray for Gulf Stream
and asked him if the agreement also included code enforcement
duties. Mr. Kramer replied that he had not seen this document
and was not aware that Delray was doing code enforcement in Gulf
Stream. He then asked if Mr. Kramer was familiar with the Delray
website, building permits self-service, and referred to
Respondents Exhibit #R30 which listed the status of a permit.
Mr. Kramer, in answer to a question from Mr. O'Hare, said he was
not very familiar with the software connected to this system but
does know that there is a part of it that is available to the
public and a second part that is accessible only to the staff.
Mr. O'Hare then asked if he was familiar with an appeal process
in relation to Florida Building Code Violations and Mr. Kramer
said there is an appeal process at the County level and one at
the State level. Mr. O'Hare then showed Mr. Kramer Respondents
Exhibit #R27 which was a copy of a part of Chapter 1 Part 2
Section 105 of the Florida Building Code and asked if that was a
fair characterization of what is in the Code to which Mr. Kramer
replied that it is the Code, not just a characterization of
same. He then asked Mr. Kramer to read that section aloud as
follows: "Work shall be considered to be in active progress when
the work has received an approved inspection within 180 days.
This provision shall not be applicable in case of civil
commotion or strike, or when the building work is halted due
directly to judicial injunction, order or civil process." When
asked by Mr. O'Hare, Mr. Kramer said he understood this to mean
that the 180 day provision would not apply if there was a riot
or strike. Mr. O'Hare pointed out this also refers to judicial
injunction and he asked if Mr. Kramer had ever had a discussion
with the attorney or anyone else about what exactly this means
and he replied that he didn't recall any such conversation. Mr.
Kramer was then asked if it were to be called to his attention
that 180 days had passed without an inspection would he apply
13
the second part of the previously quoted Section 105 to which
Mr. Kramer replied he would enforce the Code. Mr. O'Hare
believed a Building Official has a certain amount of discretion
in enforcing the Code and he asked Mr. Kramer at what point that
ends. Mr. Kramer again stated that he would enforce the code.
Mr. O'Hare asked if, as the building official, he would accept
letters from engineers who made the inspections in lieu of the
Town or City Inspector to which Mr. Kramer replied, yes.
In cross examination Attorney Randolph asked if Mr. Kramer would
rely on Mr. Tobias's opinion as to whether a permit has expired
when he was acting as Building Official to which Mr. Kramer
replied that he would value it very highly and would most likely
only discuss it if he felt there was a life safety issue. Mr.
Randolph then showed him the transcript that was taken during
the first day of this hearing in February and asked him to
review what is written, beginning at line 19, and determine if
he disagrees with Mr. Tobias's testimony. Mr. Randolph went on
to say that the essence of this testimony is that the permit had
expired, a new permit had been granted but then it was revoked.
Mr. O'Hare objected saying he didn't know which hearing this was
taken from to which Mr. Randolph replied it was from the first
day of this hearing that was held a long time ago prior to all
of the postponements.
After his review as was requested, Mr. Kramer said he did not
disagree with this testimony given by Mr. Tobias and that he
does understand that in the event work has not taken place
within 180 days since the last inspection that the permit
expires.
Attorney Randolph then gave Mr. Kramer copy of Town Exhibit #T18
and asked him to read the highlighted portion which was:
"Another extension is requested. The homeowner will have to file
a new permit. 7-3-13 this permit was renewed in error on 6-21-13
per the above note. Permit has been revoked to disallow any
further activity. Steve has spoken with contractor of record and
the homeowner. They have been notified that due to the Code
change and a possible change in roofing material, a new permit
application will need to be submitted. Homeowner and contractor
notified in requirement. Refund will be sent." Mr. Randolph then
asked if he had any reason to object to the validity of the
comments that were made on the computer generated document and
Mr. Kramer answered no objection. This document was admitted as
a part of the composite Town Exhibit #T18 over the objection of
Mr. O'Hare who said it was unknown as to who wrote it. The
14
Special Magistrate said that there was testimony that it is an
official Delray document, is a typical notation for this type of
document and it has been read.
Attorney Randolph then showed Mr. Kramer another Delray computer
generated document marked as Respondent Exhibit #R28 which is an
inspection history with one of the dates of inspection being the
same as inspection date that is shown on the Delray document
that was just read aloud by Mr. Kramer. Mr. Kramer confirmed
this. Mr. Randolph reminded that Mr. Kramer had been shown a
copy of an Interlocal Agreement which he said he had not seen
before. He then showed Mr. Kramer a Memorandum of Understanding
between Delray Beach, Gulf Stream and Palm Beach County and
asked him to state the date that was on the document to which
Mr. Kramer said the date is November 16, 2009. Mr. O'Hare
objected saying this has not been entered to which Mr.
Brandenburg replied that he believed Mr. Randolph is trying to
establish a reason to admit it. Mr. Kramer was then asked to
read the highlighted portion as follows: "The city official will
accept all applications for development within the Town after
November 15, 2009." Attorney Randolph asked to have the
Memorandum of Understanding entered, there were no objections
and Mr. Brandenburg admitted the document as Town Exhibit #T15.
Attorney Randolph then referred to the Florida Building Code
that stated that a permit is to be considered a work in progress
when a permit has received an inspection within 180 days. He
asked Mr. Kramer if this had received an inspection within 180
days and Mr. Kramer said it had not, which confirmed Mr.
Tobias's earlier statement. Mr. Randolph then pointed out that
this section also states that the only exception to this
provision is that it shall not be applicable in case of civil
commotion, or when the building work is halted due directly to
judicial injunction, order or similar process. He then asked Mr.
Kramer if he was aware of any halt in the work as a result of
judicial injunction, order or similar process to which he
replied that he was not aware of any of these.
Mr. O'Hare, in re -direct, asked Mr. Kramer if he had knowledge
of any of these things would it change his opinion about whether
this section applies to which Mr. Kramer said it would.
Mr. O'Hare then asked several questions to which Attorney Rustin
objected and the Special Magistrate upheld her objections.
Mr. Kramer was then asked by Mr. O'Hare if he had seen any proof
that the refund of the renewal fee had been refunded and he said
he is not involved in that type of activity. Mr. Kramer
15
confirmed that he is not aware of anything that would contradict
Mr. Tobias's decisions regarding this permit.
Mr. O'Hare then asked Mr. Kramer to once again read aloud a
section of the transcript of Mr. Tobias's testimony that he had
previously read following which he once again asked Mr. Kramer
if there was anything in that which would cause him to differ
with Mr. Tobias's decision. Mr. Kramer said he is in agreement
with Mr. Tobias's decision.
Mr. O'Hare asked what date the permit expired based on this
information to which Mr. Kramer said that it was between June
21, 2013 and July 3, 2013 with the date of July 3, 2013 being
the date the notation was made that an error had been made.
Mr. Randolph reminded Mr. Kramer that he had previously said he
was in agreement with Mr. Tobias's statements and asked if he
could tell when the last inspection was made. Mr. Kramer said
that in reading the inspection history the last inspection was
made on April 26, 2012 and that adding 6 months to that date the
permit would be expired on October 26, 2012 based on the code
itself.
Mr. O'Hare repeated the questions regarding this date and
Special Magistrate Brandenburg summarized the testimony as
follows: The permit was revoked on 6-21-13 and Mr. Kramer had no
evidence to contradict that, the print out from the City showed
that something else was put in the system on 7-3-13 and that in
Mr. Kramer's mind the permit was revoked on 6-21-13 but he was
not sure of the legal status of it because something else was
put in the system on 7-3-13. Mr. Brandenburg asked Mr. Kramer if
that was accurate to which Mr. Kramer replied, yes and Mr.
Brandenburg excused the witness.
Mr. O'Hare called Marty Minor as his next witness. Mr. Minor
works for Urban Design Kilday Studios and his home address is
606 Community Dr., West Palm Beach, FL. He said he has worked
at Urban Design Kilday Studios for 26 years and has been a
consultant to the Town of Gulf Stream during the past 11 years
of that tenure. He acknowledged that Urban Design Studios had
written the Design Manual for Gulf Stream and assists with
interpretation of the Manual and zoning portions thereof when
asked. Mr. O'Hare asked if the Manual is basically used for
reference when reviewing development applications to which Mr.
Minor replied, yes. Mr. O'Hare pointed to two citations that are
specific to his expertise, 70-238 & 70-99, both directed to the
style of the home at 2520 Ave. Au Soleil being classified as
Gulf Stream Bermuda. Mr. O'Hare questioned if Mr. Thrasher had
16
asked him to determine how this house is Bermuda style to which
Mr. Minor replied that he had been asked to classify what style
this house is. O'Hare then asked Mr. Minor if he had referred to
the style cards of houses on file in the Town that had been
prepared in 1997 to which he replied that he had not, had no
knowledge of them and was not associated with work that was done
in 1997. In answer to a question Mr. Minor said he had evaluated
the style of the house by studying photographs on Goggle Earth
and he enumerated the features that matched those set out in the
Code as being Gulf Stream Bermuda style as the combination of
the hip and gable roof, rectilinear form of the building and the
windows, smooth stucco, and low pitch of the roof. Mr. O'Hare,
considering each item named by Mr. Minor, asked if there were
other houses in Town exhibiting one of these features that are
classified as some style other the Bermuda to which Mr. Minor
replied that the style is determined by a combination of
features, not just one alone. Mr. O'Hare called attention to
Section 70-99 under "Prohibited". He noted that this section was
cited in the Notice of Violations and he asked Mr. Minor if he
sees in the Code that it uses the phrase "with any other house
in Town" to which Mr. Minor said he did not see this phrase.
Mr. O'Hare pointed out that "exposed rafter tails" are listed
under both Gulf Stream Bermuda and Spanish Mediterranean with
which Mr. Minor agreed.
Mr. O'Hare asked to have a group of e-mails admitted in
evidence, one of which was a public records request and was
admitted as respondents Exhibit #R39. The e-mail from Mr.
Thrasher was dated in 2012 asking him to identify the Gulf
Stream Bermuda characteristics from a picture of 2520 Avenue Au
Soleil. This e-mail was entered as respondents Exhibit #R40. Mr.
O'Hare asked Mr. Minor if he agreed that his previous statement
that he did not remember Mr. Thrasher asking him to identify the
Gulf Stream Bermuda features of this house is now corrected with
the entry of Exhibit #R40 to which Mr. Minor agreed.
Mr. O'Hare enumerated the features Mr. Minor had stated were
consistent with a Bermuda style and then asked which of these
was not found to be associated with Spanish Mediterranean to
which he replied that the difference in the description of the
roofs and consideration of all the different features listed,
not just one. Mr. O'Hare then moved into the Georgian and
British Colonial styles to which Mr. Minor stated he would refer
to other written sources to determine the special features
associated with those styles.
17
Attorney Randolph, in cross examination, recalled that in answer
to Mr. O'Hare he had stated that the property owner could choose
the style of house he wanted. He then asked Mr. Minor if that
choice must still be in conformity with the Code to which Mr.
Minor said yes. He then showed Mr. Minor the Notice of Violation
dated August 14, 2015, especially the last sentence under
Section 70-238 in the Notice that states "The roof is in
violation in that there is no tile in place." He then showed him
a photograph of the house which is Exhibit #T26 and asked him if
he would agree that there is no tile in place and is in
violation to which Mr. Minor replied, yes. Mr. Randolph then
pointed out the Section 70-99 in the Notice states under
"prohibited", inconsistent roof materials visible from the
exterior of the property except approved accent materials.
Material that has been applied is inconsistent with roofing
materials visible from the exterior of the property. He then
again showed Mr. Minor Exhibit #T26, a picture of the roof as it
appears now and asked if he agrees that what appears in the
picture is inconsistent roofing materials that are visible from
the exterior of his property and Mr. Minor again replied, yes.
Mr. O'Hare, in re -cross examination, stated that Mr. Minor had
agreed that the violation of Sec. 70-238 was due to him having
no tile on the roof and asked him if he could also be in
violation of other sections for the same reason. Attorney
Randolph objected and the Special Magistrate sustained the
objection. Mr. O'Hare reworded the questions regarding the
sections listed in the Notice of Violation that had been asked.
The Special Magistrate stated that he has the points he has been
making and asked if it is possible to move on to another topic
that might yield him more pay dirt. Mr. O'Hare had no further
questions.
Attorney Randolph asked to see the document and for the record
stated the document that has been referenced is the Statement of
Violation has the Notice of Violation of August 14, 2015
attached to which Mr. Minor replied, "that is correct". The
Special Magistrate admitted this document as Town Exhibit #T24.
The next witness was Freda DeFosse 658 Southwest First Court,
Boynton Beach, Florida 33426 and she is currently employed at
the St. Andrews Club. She said she had worked for the Town from
April 2003 to May 2004. (Clerk's Note: The years of employment
were 2013 to 2014) Mr. O'Hare showed the witness an e-mail dated
10-8-12 8:48 to Mr. Thrasher from Steve Tobias in which Mr.
Tobias is advising a property was in need of a permit for
landscaping and irrigation. He asked Mrs. DeFosse if she ever
had an occasion to ask Mr. Tobias to come to look at properties
IU
to which she replied she had never asked him to come and look at
properties but she had talked to him about various permits as he
was the building official. Mr. O'Hare then called attention to
the next e-mail which was from her to Mr. Tobias in which she
was asking for his department procedure when handling permits
that were more than 180 days with no inspection activity and
does that procedure apply for permits that are executed for Gulf
Stream. He ask why she would be sending that question to which
she replied that she was still learning how things worked
between Gulf Stream and Delray and she asked them a lot of
questions. He then referred to the 3rd e-mail from Tobias to
DeFosse answering her question about procedure which stated that
they look to see if there has been a code change, what was the
scope of the work and why is there no recorded inspection. He
asked her if that was correct and is it accurate representation
of the actual e-mail that might have taken place then to which
she replied that is what it says. She went on to say it would
appear to her there is something missing from October 2012 and
her e-mail because she would have had no reason to respond to
the e-mail in 2012 and it appears there is a cut and paste along
the line. She pointed out that it does not appear that the
second e-mail has anything to do with the first. Mr. O'Hare
asked if the question to Mr. Tobias had anything to do with his
permit for 2520 Ave. Au Soleil to which she replied that not
necessarily because she had a number of permits that were passed
the 180 days that she was trying to clear. He then asked if it
was her job to contact the property owner of a permit that had
expired to which she replied that she did not do that.
Mr. O'Hare then confirmed that she had worked for Gulf Stream
for 13 months and then asked the procedure that is used when
moving on and she advised she gave a 2 week notice. He asked if
there were exit papers and assumed she was not here long enough
to have insurance to which she replied that she was covered by
insurance. Special Magistrate Brandenburg questioned what
relevance these questions could have to this matter and that he
should wrap up this line of questioning very quickly.
Mr. O'Hare asked if she gave a letter of resignation and did she
quit on her own to which she to which she replied that she left
on her own and did give a letter of resignation.
He had no further questions and Attorney Randolph had no
questions.
Mr. O'Hare then called Attorney Randolph to testify and Special
Magistrate Brandenburg asked why he had felt it necessary to
subpoena Mr. Randolph and what information he believed Mr.
19
Randolph had that he could not get from some other witness that
was not a lawyer. He replied that there were some things that
have happened during the proceedings that he wanted to ask Mr.
Randolph about that goes directly to the notice of violation.
The witness gave his name as John Randolph and his office
address as 505 S. Flagler Dr., West Palm Beach. Mr. O'Hare asked
Mr. Randolph if he had knowledge there has been action regarding
this roof permit since 2012. The Special Magistrate reminded Mr.
O'Hare that he had asked this question to several other
witnesses and the answer is known and that he has copies of 4
different law suits, or parts of them, that are already in
evidence. Mr. Brandenburg said once again that he is to ask Mr.
Randolph only questions that he has knowledge of that could not
be obtained from any other witness and that he is not required
to give any privileged information or confidential information.
Mr. O'Hare asked if he and Mr. Randolph had been exchanging e-
mail' and Mr. Randolph said yes in conjunction with e-mails sent
to Mr. Brandenburg and he would be happy to share them with him.
He then asked if in those e-mails there was discussion about his
prior applications for a permit and have it ruled on prior to
this hearing. Mr. Randolph said there was talk about having a
meeting to discuss it and then several e-mails were received
that led him to believe Mr. O'Hare was not really that
interested in a meeting as he had made up his mind in how he
wanted to proceed so no meeting was held. Mr. O'Hare said the
part of the e-mails was not a resolution issue but rather the
application he had made several weeks earlier asking Mr.
Randolph to motivate Mr. Thrasher to review the permit. Mr.
Randolph said he did not recall that part of the e-mail
structure but that he did remember that Mr. O'Hare had some
opinion about the abandonment issue and what he had a right to
do under Section 42-29, that being to put back the roof that had
been removed, with which Mr. Randolph agreed. Mr. Randolph
pointed out that there has been testimony at this hearing that
the application that was made for the replacement, a barrel
tile, was not the tile that had been removed.
Mr. O'Hare said he was finished with his case except for
summation.
Mr. Brandenburg suggested a 10 minute break and Mr. O'Hare
preferred 12 minute which was agreed to at 4:50 P.M. The hearing
resumed at 5:08 P.M. The Special Magistrate asked Mr. Randolph
if he still objected to the admission of Exhibit #R23 to which
he replied he has no objection and it was admitted. Mr.
Brandenburg asked if Exhibit #R31 that was proposed has any
no]
significance to which Mr. O'Hare said it did not and Mr.
Brandenburg declared it would not be admitted. It was then
determined that Exhibit #R32A,B,C & D would not be admitted.
In summation Mr. Randolph stated this was a very simple case.
For 4 years, beginning with the re -roofing permit of August 29,
2011, Christopher O'Hare has been challenging the ability of the
Town to regulate the type of roof that he may place on his
property. During the 4 years the roof has remained unfinished as
has been shown in this hearing with just an underlayment which
is out of character with houses across the street or any other
in Town, which was a clause that was added to the notice of
violation. He said that for 4 years this has been an unfinished
roof while Mr. O'Hare first filed a petition for writ of cert in
regard to the denial by the Town to overturn the decision of Mr.
Thrasher that metal roofs were not allowed in this area. He said
that case was decided by the Circuit Court and it was mentioned
early in the hearing by Mr. Roeder that case did not reach the
merits, it was just dealing with the issue of due process. Mr.
Randolph said that was not the case. He said the petition talks
about the letter that had been signed by Mr. Lunn saying the
structure cannot support a concrete tile roof and that was an
issue before the circuit court that denied Mr. O'Hare's petition
for writ of cert. He went on to say that Mr. O'Hare, through Mr.
Roeder and another Attorney appealed that decision to the 4th
District of Appeals with the same issues and the 4th District
sustained the decision of the circuit court and denied the
request to overturn the Town's decision. Mr. Randolph went on to
say that at the same time they filed for petition for a writ of
mandamus, which contained the same substance matter as was
contained with the writ of cert, requiring that the Town issue a
permit for a metal roof which was entered into evidence this day
along with the decision of the court, that being a denial that
was not appealed. He reported that Mr. O'Hare then filed a 3=d
action which was an application for a solar sandwich roof which
is made of metal that was denied by the Town with Mr. O'Hare
filing an appeal to the circuit court that was also denied. Mr.
Randolph said this appeal contained the same kind of allegations
as in all of these cases. He therefore proposed that this issue
is res judicata and that issue should not be tried in this
hearing as this is not to determine if Mr. O'Hare can have a
metal roof on his property but to look at the specific code
violations that were talked about in this case and were recently
addressed through various testimony. One of the violations was
construction abandonment and testimony was given that the
Florida Building Code states that a permit has expired when 6
months passes without an inspection. He said Mr. Tobias had
stated that to be case and the computer inspection history
21
supported his statement with regard to Mr. O'Hare's permit. He
pointed out that the permit had lapsed, the July 2013 permit
renewal that had been requested had been issued in error and was
therefore withdrawn and that subsequently the contractor and
homeowner were advised that it had been withdrawn. He said that,
according to the ordinance, if the permit expires, the property
owner must return the property to the condition in which it
existed prior to the issuance of the permit. Mr. Randolph
pointed out that the contractor who removed the tile testified
that from looking at the exhibits that were presented, the Boral
Barcelona 900 Gold Dust was the tile that existed on the house.
He added that while this is not in keeping with what the Town
allows in its code, but, based upon the code provision that says
if a permit has expired the owner must return the property to
the condition it was previously, that's an option before the
Magistrate.
Attorney Randolph went on to say that Mr. O'Hare, during these
hearings, filed requests with the Town to place on the roof
Artizonus Tapered Barrel tile which is not what was on the roof
before as set forth in the evidence. He believed the options
before the Magistrate to be; a) To find a violation of Section
42-29 which provides the Magistrate can place a fine of $250 per
day for every day that the roof is in violation without
replacing the exact tile that was there before. b) To find a
violation of Sec. 70-238 in that this section provides Gulf
Stream Bermuda Style houses must have white, thru and thru flat
cement tile roofs but for 4 years there has been no tile, just
the underlayment. c) To find a violation of Sec. 70-99 under
"prohibited" which lists inconsistent roof materials visible
from the exterior of the property, except approved accent
materials, remarking that the Manager made a finding that the
material that has been applied is inconsistent roofing materials
visible from the exterior of the property, and that Mr. O'Hare
has allowed this house to exist in this condition for these 4
years using the courts to challenge the Town and each time being
rebuffed by the courts in regard to it.
Mr. Randolph reminded that while the Interlocal Agreement
between Gulf Stream and Delray Beach designating Delray as
Building Official for Gulf Stream had not been recorded, there
was a Memorandum of Understanding between Gulf Stream, Delray
Beach and Palm Beach County Building Department dated in 2009 in
which this was agreed to and gave Delray Beach the authority to
determine when permits would expire.
Attorney Randolph closed by stating that the Town's request is
that the Magistrate find Mr. O'Hare in violation of Section 42-
22
29 because the permit was abandoned and, under that section he
can install the same material that has been removed, are asking
that be one of the alternatives that is included within the
Magistrate's order. He further asked that there be a finding
under Section 70-238 of violation by Mr. O'Hare for the obvious
reason there is no roof tile in place. In regard to Section 70-
99, he asked that there be a finding of violation in that
inconsistent materials visible from outside the property are
listed as prohibited and the underlayment that has been visible
for 4 years is an inconsistent material with any other roofs in
the neighborhood and is visible outside the property. Mr.
Randolph then asked that the order give a period of 60 days to
comply by installing the roof in either the manner in which it
previously existed or that Mr. O'Hare go forward with the white
thru and thru roof tile that he had previously applied for.
Attorney Randolph stated that in the event an order is entered
that finds noncompliance and the roof is not installed within 60
days, the Town would be asking for the maximum penalty of $250
per day.
Mr. O'Hare apologized for the hearing having taken so long,
adding that he felt the delays had been necessary. He said he
agreed with Mr. Randolph as to how bad his house looks and that
no one wants a roof on his house more than he does as it lowers
the property values, he can't sell it, he can't get financing,
nor can he insure it. Mr. O'Hare maintained that the code allows
for a metal roof if there is an engineer's report that says the
structure will not support a tile roof, he felt he qualified and
he should have it. He said he realized he couldn't have it so
he searched for another material that would satisfy the engineer
and the town. In that a concrete tile roof is 1200# per square
he looked for a lighter tile and found a clay tile
that looks like slate but Mr. Thrasher said no. He said he then
found a clay barrel tile which is what had been described as
having been removed from the roof but Mr. Thrasher said no.
After several derogatory remarks directed to the Town and its
officials, he said in order to comply he would have to
strengthen the roof and all of that could not be accomplished in
60 days. He then listed the various steps that would be required
in order to get the permit. Further, he didn't believe this
should even be necessary due to the officials in Delray not
being able to prove to his satisfaction that his permit had
expired. Mr. O'Hare said the most disturbing thing is that if a
person is selling his home and there is an open permit it is a
title defect and that would result in having to acquire a new
permit to cover the open permit, correct whatever the permit
covered and have a final inspection to clear the title. He said
23
if he had known his permit had expired he would have immediately
renewed it.
Mr. O'Hare then addressed judicial process and commented that
when Attorney Randolph enumerated the various court actions he
did not mention the federal action, inferring that as long as
those cases were in progress that time should not be counted in
determining the expiration date of his permit.
Mr. O'Hare said he has offered a number of solutions, all of
which have been rejected by the Town which shows he has tried to
work with the Town. He said the basis for this hearing is 3
alleged code violations. He pointed out, with regard to the
first violation, that Mr. Randolph has said the remedy for this
would not be compatible with the neighborhood but the Town would
accept that but he did not say what the remedy is for the second
and third violations. He said if he puts the roof back on with
the material that was removed he can't correct the second
violation since it would require the white, flat tile. He said
Mr. Minor was not clear on how to determine the style of the
home which influences the second violation. Mr. O'Hare believed
that everyone agrees that a roof should be installed but that
the question is, what roof? He said he could tear the whole roof
off at an outrageous cost but that he was trying to work with
the Town to find an equitable solution and not put his family at
risk.
He closed by stating that the Town must prove beyond a
reasonable doubt that the permit had expired and he believed he
had proven that it had not with the testimony at this hearing.
In rebuttal Attorney Randolph stated that the standard is not
beyond a reasonable doubt in these proceedings, it's whether the
Town has sufficient evidence to prove the Town acted
appropriately. He said that in all the cases filed as evidence
today they didn't just decide whether there was notice and
whether there was due process. They made a determination that
there was competent, substantial evidence for the Town to
support the decision they made. He, once again, said this was
res judicata and went on to explain the provisions in the
Florida Building Code related to expired permits and reminded
that there has been no evidence presented to show that work had
been stopped on the permit in question due to judicial
injunction, order or similar process. He asked that one of the
two alternatives presented, those being installation of the
white tile or install the tile that had existed previously, be
approved and that 60 days is a sufficient period of time to
allow this work to be done.
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Mr. O'Hare, addressing the res judicata, said that the judge has
given permission to go back to the appeals court in this federal
case and they are expecting a decision at any time so this is
not res judicata. He went on to say that, according to Mr.
Minor, he has a right as a property owner to choose the style of
his house. He said if he decided to do that at this time, the 60
days would not be long enough to accomplish that.
Magistrate Brandenburg advised that either he would take the
material submitted, review it and then send his written order to
those involved or set a date for another meeting and present his
order. He asked Mr. Randolph and Mr. O'Hare which they preferred
and they both agreed another meeting was not necessary, the
order could just be forwarded.
Mr. Brandenburg thanked Mr. O'Hare and Attorney Randolph and
advised that he would get the order out as soon as possible but
that it may be as much as two weeks.
This Hearing ended at 5:40 P.M.
?/t e41
Rita L. Taylor
Town Clerk
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