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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 2 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 3 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. 13 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 W 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 6'. 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 VI 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 0 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 0 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. IN 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. 11 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. 24 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 25