MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

 

 

October 29, 2009

 

 

 

The Board of County Commissioners of Brevard County, Florida, met in special session on October 29, 2009 at 9:05 a.m. in the Government Center Florida Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida.  Present were:  Chairman Chuck Nelson, Commissioners Robin Fisher, Trudie Infantini, Mary Bolin, and Andy Anderson, and Interim County Manager Stockton Whitten and County Attorney Scott Knox. 

 

 

 

Commissioner Fisher advised the Miami Corporation is going to Tallahassee on Friday to meet with the Department of Community Affairs (DCA) for the Development of Regional Impact (DRI); stated Volusia County is sending four staff members to support the project; and Miami Corporation is asking if the Board would consider allowing one of its staff members to go to Tallahassee.  He stated it is a unique situation; there will be a utility plant housed in one County that will serve another County; the partnership has been very good; and Miami Corporation offered to pay for County staff to attend the meeting in Tallahassee; however, letting Miami Corporation pay for County staff may send the wrong message, but it would be important to show that there are two Counties working together; and it would be helpful to all parties involved.   He suggested allowing Stuart Buchanan from the Planning and Development Department to go to Tallahassee. 

 

Commissioner Bolin stated she does not object to that, but she wants to make sure if the Board is going to allow a staff member to go to Tallahassee to support the DRI, that it allow other corporations to do the same thing; and noted The Viera Company DRI is located in her District, and if the Board allows it for one, then it has to allow it for all. 

 

Commissioner Fisher stated he is okay with it, especially if the Board agrees that the project is a good project; he does not know if the Board wants to send staff on all DRI’s; and the Board supported the Miami Corporation DRI, but he would not want to send staff to Tallahassee for a DRI it does not support.

 

Chairman Nelson stated Brevard County has only had three DRI’s, so he does not know if it will ever be a huge issue; it is worthwhile to send staff to Tallahassee and he will support it; but he believes the County should pay for staff to go; and he does not want Miami Corporation to pay for it.  Commissioner Fisher stated sending staff to Tallahassee does not mean the Miami Corporation would supersede any other normal procedure to go through; and the Miami Corporation still has to come back before the Board in a public hearing for anything it wants to do. 

 

Chairman Nelson stated he agrees with Commissioner Bolin that it would be appropriate when The Viera Company is before DCA as well. 

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to direct Assistant County Manager Mel Scott to provide a staff member to attend a meeting in Tallahassee on October 29, 2009 with the Department of Community Affairs (DCA) relating to the Miami Corporation/Farmton Project.  Motion carried and ordered unanimously.

 

 

 

Chairman Nelson stated he would like to congratulate NASA and ATK for a great launch of the Space Shuttle yesterday.

 

 

 

John Phillips stated he is before the Board today to air his grievance and request to be exonerated of all judgments, costs, fines, and liens on his property, as they are an undue burden.  He advised he owns property at 5920 Palm Street, Mims; stated he is not the violator, but he is the landlord; and the violator is his tenant.  He stated he has issues with the Code Enforcement Department and the current Special Magistrate; after his last hearing he had three liens totaling $6,050 that were not caused by him, but by the actual violator; and stated if he pays the liens, he will be forced to be guilty of a violation he did not commit.   He noted Chapter 162 of the Florida Statute states, “Violator is notified”; it does not state that the property owner gets fined, but states the Special Magistrate fines the violator; and the Attorney General has the same opinion that the violator is not necessarily the property owner.  He stated his civilian rights have been infringed upon by the way Code Enforcement Officers come onto his property without a warrant, and the way they badger either the property owner or the resident of the property; the last Code Enforcement Officer told his tenant to show her the backyard, or else she would go to the neighbor’s and look over the fence; the Code Officer must see all of the property, even behind a privacy fence; and that is badgering the owner and/or the resident of the property.  He stated he was told after his last inspection that he would have to pay $350 to Code Enforcement or else go before the Special Magistrate and pay $500; and to him, paying a fine for an act he did not commit is a crime of extortion.  He stated he has been told if something does not grow there, or is not built there, then it does not belong there; and inquired if that means he cannot have any plants in containers or yard ornaments.  He stated citations are not given to violators; only notices of violations are sent to the property owner; not giving a citation to the violator is against the Florida Statutes; the citation must have a date and timestamp noting when the inspection took place; and the only documentation received is a notice of violation or notice of hearing.  He stated Code Enforcement Officers hold a notice of violation for 15 days before sending it to the property owner or violator; the notice has a timeframe of 14 days to be Code compliant; that totals 29 days and a fine of $50 per day, with costs of $350 for uncontested, or $550 for contested; and to him, not being the violator, that is extortion.  He stated he has always cooperated with Code Enforcement and has helped them with research on many occasions when they needed help, yet they have an attitude that goes against ethics and policies that create intimidation upon Code violation inspectors; and inquired how he can continue to exist in the situation when no matter what action, the appeasement is not accepted by Code Enforcement; and stated Code Enforcement needs to do its own research rather than put a burden on landowners.  Code Officers place the burden of producing a site plan of the property   if    the   property   is   a   questionable   situation   on   the   victims;   and   the   Code Enforcement Department has all of the site plans archived and they can do the research themselves.  He stated some Codes do not have continuity; junk or abandoned cars have 30 days to be removed, but a car under repair has seven days; when the Code Enforcement Officers are viewing the property in question, there is no time limit to remove or repair vehicles; and Code Enforcement is blind to the County Codes.  He noted at the Special Magistrate hearings, those considered violators are guilty even if innocent; the Special Magistrate is one-sided, which was intimidating not only to him, but others at the hearings; it seems whatever defense is used, those cited are always in violation; stated he is not the violator, therefore, he was assigned the maximum citation; and the actual violator is exonerated for the actions of the Code Enforcement and Magistrate.  He stated according to the County Codes, Florida Statutes, a dismissal of citation may be given if in compliance before the hearing; his citation should have been dismissed when his property was in compliance before all hearings; the Special Magistrate does not follow the Statutes or County Codes at the hearings, nor policies and procedures; and if the Board attends a Magistrate hearing, it will see how people are treated and have undue, or excessive fines, requested by Code Enforcement.  He stated he has witnessed at the hearings of some of the Code Officers are proactive; if they are on a call for a complaint and see another property in violation, they can cite the property owner of the additional property; and a complaint by a citizen patrol is also proactive, as they are under the offices of the County while on patrol.  He stated to solve the situations at the Magistrate hearings, there needs to be a Code Enforcement Board made up of citizens, which would be more fair than the current system. 

 

James Sondet stated when he graduated high school he and his peers had to face going immediately to Vietnam; 58,000 people did not come back from Vietnam; and those were people who were fighting for freedom.  He stated Code Enforcement is not the freedom that was fought for; it has to stop; the United States has a constitution that gives its citizens certain inalienable rights; and one of the things everyone says is that they are trying to protect property values.  He stated when he was looking for a house in Brevard County he did not want to see zero-lot lines, or deed restricted communities; that is not what he wanted; he wanted to buy a place where he could have some freedom; and when Assistant County Manager Mel Scott came to his house to twist his arm to try to bring him into compliance, he told him that he needs to go somewhere where there is a lot of acreage and live his life the way he wants to.  He noted Mr. Scott went on to tell him about all the things that he cannot do, including the fact that his land is not agriculturally zoned because he lives on it; and he sees this whole Code Enforcement issue as being nothing but co-extortion and government racketeering.

 

Scott Cuthbert stated he has lived on septic tanks for 30 years; he bought a house in July 2008; a couple of months later he received a letter in the mail from a septic tank company in St. Cloud demanding that he send them a check for $450, per Brevard County Health Department; he just ignored it, thinking it was some type of scam; and a couple of months later, he received another letter from a septic tank company in Fellsmere, again, demanding $450 for an operating permit in a maintenance contract for his septic system.  He advised he has an aerobic treatment unit; and stated he had never heard of one of those before he bought his house, but he knew it was there when he bought it.  He stated an inspector walked through his property and inspected his septic system; he was advised that he was not in compliance because he did not have a maintenance agreement for his aerated treatment unit; the inspector told him everything was running in an operational order,  but he did not have the permit;  and when he asked what that meant,  he was told it meant that he had to hire a contracting company licensed in the State of Florida  and  registered  specifically  for  his  system;  but  there  is  no  one  in  Brevard  County registered to work and perform maintenance on his system.  He stated he paid $450 to the septic tank company in Fellsmere, because the inspector told him if he did not go to an administrative hearing he would be charged $450, and even if he did go to the hearing he would be fined $550 if he did not have a permit; and if he did not get the permit, the fines would accrue daily $500; but he does not see how this makes housing affordable in Brevard County.  He stated later in the year, he received a letter informing him he needed to pay $395 to replace his air filter and to reset his alarm panel; he called the manufacturer and was told that air filters are $15; it was explained to him that he could fix the problem by turning the switch off, unplugging the unit, and use Scotchbrite pads, cut them to size, and that they would be the best filter he could ever have; and he did that in 10 minutes, and his system worked fine.  He stated Code Enforcement and Environmental Health told him he is not licensed to work on his own septic system; and other people he has talked to with aerated treatment units have cancelled their maintenance contracts, or not renewed them, because the septic tank companies show up unannounced, do nothing, and then send a letter saying they are owed money to fix a system that seems to be operating just fine.

 

Chairman Nelson advised the Brevard County Environmental Health Department is a State agency; the issues Mr. Cuthbert just described are not part of the County’s Code compliance area; the Health Department issues the permit; and the County does not control it.  Mr. Cuthbert stated the Health Department goes through the County’s administrative hearing process.  Chairman Nelson stated the Health Department has its own administrative process.

 

Assistant County Manager Mel Scott noted Environmental Health is not a process that is governed by the Board of County Commissioners; and the Board has no jurisdictional authority.  Chairman Nelson stated it is a State agency; and Mr. Cuthbert can take his situation up with his State Legislator or the Health Department itself; but there is nothing the Board can do to help Mr. Cuthbert with what he just described.  

 

Chairman Nelson stated a valid point that has been raised that is that the house could not have been built unless there was an agreement by the homeowner to put in that type of septic system; the problem is that it then does not get disclosed to the buyer during the sale process so that he or she is aware that there is an ongoing commitment that a previous homeowner had made on behalf of that property; there needs to be some level of disclosure; and if there is not one required, then there should be.  Mr. Cuthbert inquired if there is any way the County can require a realtor or builder to disclose that information.  Chairman Nelson stated the State controls the legislation on that.

 

Commissioner Fisher stated legally, the realtor should disclose that information. Mr. Cuthbert advised according to Environmental Health there have been at least 2,500 permits issued over the last three years; and there are almost 1,200 people who are not in compliance, which means they are being fined whatever the Magistrates are fining them.  Chairman Nelson stated that is the only type of septic system that works there, so if someone wants to build a house, that is what they have to have; and the only way to be given a permit is if the homeowner manages and maintains it, because otherwise, it does bad things.

 

Bryan Hein stated liberty is the condition of being free from restriction or control, the right power to act or believe or express oneself in one’s manner of one’s own choosing; freedom is the capacity to  exercise choice,  free will, and the right to unrestricted use;  tyranny is the condition, or state, of being dominated or controlled by something that makes unpleasant or harsh demands, oppressive and unjust government by more than one person, absolute power; privilege is the special entitlement of immunity granted by a government or other authority to a restricted group either by birth or by a conditional basis; and by contrast, a right is an inherent, irrevocable entitlement held by all citizens and human beings from birth.  He commented on war heroes of past generations; and stated according to the second amendment of the government, it was well within one’s rights to kill such a government.  He stated today, he stands before a government that resembles the one that they have killed; rights and freedoms have been taken away, some of which have been given back as privileges, most of which government keeps for itself.  He stated his family will be homeless if Brevard County gets its way; he has been told his family cannot live in their home because they cannot afford to pave their roads, because they cannot afford to send someone else’s child to school, because they cannot afford to build their road up to Code and maintain it so that neighbors can continue to drive on it without paying a penny for it, because his house was built on partial wetlands, which are within the borders of his property; and essentially, the County has taken all the rights to his property. 

 

He stated according to the County, when he purchased his property, all he purchased was the right to pay taxes on it; and he is not allowed to do anything with his property.  He stated when the County threatens his family with up to 60 days in prison, $2,000 per day in fines, and to steal their home and property, all as a penalty because he wants a roof over their heads, it is enforcing cruel and unusual punishment; and it is discrimination against the poor. 

 

Reverend Earl B. Medlin stated he lives in Barefoot Bay; he has a carport on the side of his house; the side of his house encloses one side, a wall of windows encloses the other side; and the back side is enclosed by a tool shed and a laundry room.  He stated apparently, it is on his property because it is at the end of his driveway; stated he wants to enclose the front of it with a supportive wall, put in a pedestrian door so he can have ingress and egress, and put in a garage door; and one reason for doing this is to keep out the wind.  He inquired how that is going to make it any less safe by keeping the wind out and pulling the carport off of there; and inquired how it is going to make it any less structurally sound by putting a supportive wall there on a 20-foot long roof; and he has been told by contractors that it is going to cost him well over $1,000 just for the material, plus the contractor.  He stated it is restrictive, intrusive, totalitarism, and despotism; and the Board does not seem to understand that it was elected into public office to serve the people, not the other way around. 

 

Jill Amigh stated she and her husband have two commercial vehicles on their property that they have been parking there for five years; she has never had any complaints or problems until June when a Code Enforcement Officer come onto their property when they were not home; and her neighbor called to let her know the Officer was there taking pictures.  She stated the Code Enforcement Officer told her she had to remove the vehicles and that they could not be on the property at all; it has cost them a lot of money to park the trucks elsewhere; and if her husband wants to park the trucks at a friends property, he has to drive 35 miles.  She stated her husband cannot do any of the maintenance work anymore that he used to be able to do; she has to leave work early to take him to get the truck or bring him home; they have plenty of property with a lot of trees; they  have the ability  to put up a garage or fence to  hide the  trucks;  and they are just asking that they be able to park on their property as they used to, as they will lose their livelihood if they cannot do as they were.

 

Chairman Nelson inquired what kind of trucks do the Amighs own.  Ms. Amigh replied they own freightliners; and they just want to park the cabs on their property, not the trailers.     

 

Commissioner Anderson stated he has driven out there and the trucks cannot be seen from the street; and it is a large piece of property in unincorporated June Park.

 

Jerry Brinegar stated every natural person has the right to be left alone and free from government intrusion into their private lives; and intrusion is something that interrupts a peaceful situation or a private event.  He stated evil people started these laws; but righteous people are going to take them down; and he hopes the Commissioners are all on the verge of being righteous and stop some of the hurting that is going on. 

 

Tod McNeil stated he thinks everyone would agree there needs to be a balance; the staff presentation will show ugly situations that most people would agree are harmful to other people; and there needs to be fairness to everybody; but in his opinion, it has gone way out of control one way.  He stated staff is going to show pictures of things that are wrong, but he would submit to the Board that most of the Code Enforcement actions are extremely minor and intrusive into people’s private lives and private business; and there needs to be some major re-working of how the Statutes are applied.  He stated he met with Chairman Nelson yesterday about his fence, and he agreed it is not dilapidated; he spent two months trying to determine exactly what he was being accused of; and he could not get reasonable communication with the County offices.  He stated his business is rental houses; he believes that 90 percent of the Code Enforcement calls are from someone using it as a tool to harass other people; if there are 10,000 Code violations each year, 98,000 of them are minor and a waste of time to make an issue out of them; and if it is going to be subjective, it needs to be balanced subjective.  He stated something needs to be done about the overgrown foreclosure homes; the Constitution promises there will be equal application of the law; and when it is not equally applied, it is a violation of the State Statutes and Constitution.  He stated another problem he has had is when he goes to pull building permits; a sign in the Building Department reads, “One single permit is issued to the contractor, that includes the authorization for all subcontractors, landscaping, landclearing, public works, zoning, and lot drainage”; but he was forced to buy three permits, which cost over $700 for some remodeling; and stated maybe the Board can understand why people break Codes and perform work without permits, as often, the permits cost more than the work being done. 

 

Commissioner Infantini stated she would like to commend staff for meeting with her and bringing to her attention some Codes they have tried to revise by adding the purpose of the Code, for when there is ambiguity; and staff put into the Code the intent, so it can go back and look at the intent of the Code.  She stated something else that has been mentioned on several occasions is ambiguity and specificity; for example, when someone is told their lawn is too high, what is the definition of too high; and inquired if it is six inches or 12 inches.

 

Mr. McNeil stated he was once cited for five-inch high grass; when he asked why he was being cited, he was told it could turn into overgrowth; that has been his firsthand experience with Code Enforcement; and that is why these meetings need to continue, because it is out of control. 

 

Commissioner Infantini stated staff has proposed some Code changes to the Board that would make it specific what it is so the law can be applied uniformly so that one person is not charged with one thing and another person charged with something else; and there could be something definite to look at and go to.  She stated she appreciates staff bringing specific definitions as to the terminology that is going to be used in the Code; and staff has done a really wonderful job. 

 

 

Robin Sobrino, Planning and Development Director, stated the intent of the Workshop is to provide an overview of past and current codes, policies and procedures related to Code Enforcement; and also to receive Board direction regarding possible Code changes.  She noted the presentation serves as a primer to the Board on the County’s Code Enforcement process; and she believes it will dispel any misunderstandings or misconceptions that may be out there today.  She introduced Mark Harold, Code Enforcement Lead Officer, who has been with the County for 10 years; stated Mr. Harold has two A.A. Degrees, one in Criminal Justice and one in Paralegal Studies; and Mr. Harold also has a B.A. Degree in Public Administration.

 

Mark Harold, Lead Officer, stated rules are necessary to protect citizens, but they should be fair, reasonable, understandable, enforceable, and they should reflect the community in the present times; stated together, government and citizens should have a cooperative relationship to better the community; and the overview includes reasons for codes and enforcement, areas of responsibilities, types of codes enforced, historical perspective, enforcement process, and legal aspects.  He stated regardless of where one might stand concerning Code Enforcement, it is staffs goal that by the end of the presentation there will be a better understanding of Code Enforcement, not only of the procedural aspect of Code Enforcement, but who it is as a department and as public employees.  He stated there are many examples throughout history that have resulted in the need of what is considered to be codes, ordinances, or laws; even the founding fathers saw a need for minimum standards related to public health and safety; and controlling blight, disease, crime, and minimizing the impact of disasters are all good reasons for having strong codes.  He stated yes, the United States is a Nation of freedom; and inquired if everyone is free to do whatever they want, even at the expense of others.  He stated the answer is no, because the United States is also a Nation of laws that have been decided upon by the elected officials; the local elected officials represent the community’s diverse background; and with freedom comes responsibility; and citizens are responsible to follow the laws, or to seek to get them changed.  He advised the mission of Code Enforcement is to ensure and enhance the quality of life of all County residents by protecting their overall health, safety, and welfare with minimum community standards through the enforcement of County Codes as determined by the Board of County Commissioners.  He noted Code Enforcement’s geographical areas of responsibilities include Unincorporated Brevard County, which is approximately 858.7 square miles of coverage, serving an estimated population of 210,967 and is split among nine field positions.  He stated most of the Code Enforcement Officers have A.A. or B.A. Degrees and/or previous experience in the enforcement of laws; two Officers have Masters Degrees; and Officers undergo continuing education to provide the best services to the citizens of Brevard County.  He advised new Officers undergo approximately 14 weeks of Code Enforcement training including both field related activity and office related activity; and the training emphasizes both operational techniques as well as skills necessary to deal with the public.  He noted all Officers  are certified through the Florida Association of  Code Enforcement (F.A.C.E.), and all Officers are members of the Central Florida Code Enforcement Association (C.F.C.E.A.).  He explained F.A.C.E. provides standardized training consisting of four levels: Level I, Fundamentals, Level II, Administrative Aspects, Level III, Legal Issues, and Level IV, Professional Level Research Paper; and the C.F.C.E.A. provides additional training assisting with continuing education hours to maintain F.A.C.E. certification, and provides networking opportunities with other Code Enforcement agencies.  He stated the types of Codes enforced include, Zoning, Solid Waste, Building, Overgrowth, Signs, Right-of-Way, Turtle Lighting, and Adult Entertainment licensing. 

 

Mr. Harold noted frequent Zoning Code complaints received are non-permitted uses in a zoning classification, performance standards, such as lighting, smoke, and noise, boardinghouses and/or resort dwellings, fence height, number of dogs, farm animal regulations, RV and recreational equipment parking, and commercial vehicle and equipment parking.  He stated Building Codes deal with the regulation of the maintenance of structures; and frequent Building Code complaints include failure to maintain, working without a permit, occupancy without Certificate of Occupancy, and unsecured swimming pools.  He advised Overgrowth is a nuisance code that regulates unmaintained vegetation; and frequent Overgrowth complaints include high grass and weeds, trees and bushes that have not been maintained, dead trees, encroachment of vegetation onto private property or into the right-of-way.  He stated Chapter 94 is the Solid Waste Code; Chapter 94 regulates storage, removal, and disposal of trash, junk, debris, and other types of solid waste; and frequent Solid Waste complaints include trash, junk, or debris on residential or commercial properties, trash receptacles, dumping, illegal junk yards, and junk vehicles.  He advised Section 62-3301 regulates the permitting, location, size, structural specifications, and maintenance of signs; and frequent complaints include, signs in the right-of-way (snipe signs), signs without permits, too many signs at a location, signs on residential property, and lighted or digital signs.  He stated Section 246-3 regulates the use of Brevard County’s Rights-of-Way, including roads, sidewalks, alley ways, and the grassy areas between roads and sidewalks; and frequent complaints include snipe signs, driveways without permits, posts, rocks, plants, et cetera, obstructing the right-of-way, and the alteration of the right-of-way.  He stated Section 46-95 regulates lighting on beaches as it affects Federal and State Protected Marine Turtles; and issues frequently addressed are Lighting Disorientation Reports from UCF’s Florida Sea Turtle Research Center, lighting complaints, and proactive enforcement, per Board direction.  He advised Chapter 15 and Section 62-4901 establishes reasonable and uniform regulations to reduce adverse effects of the adult entertainment business and to regulate the location, operation, and licensing of adult entertainment establishments. 

 

Mr. Harold stated Brevard County Code Enforcement is complaint driven, not pro-active; as of January 2000, per Board direction, complaints can be taken from either named or anonymous complainants; if two unsubstantiated complaints are filed against a property in a one-year period, the County Manager may require a sworn statement be filed or otherwise limit further investigation; and Code Enforcement Cases are heard by a Special Magistrate, but that has not always been the case.  He stated in 1983 a Code Enforcement Board was created with seven members with authority to hear all Code violations; in March 1996, the Board of County Commissioners appointed a Special Magistrate to hear all Building Code Violations on a “test” basis, but other cases were still heard by the Code Enforcement Board; and from October 1996 to July 1997, the Board of County Commissioners maintained both the Special Magistrate and the Code  Board to  analyze  efficiency  and  cost  effectiveness  of both processes.   He noted it was found that the number of cases heard by the Special Magistrate exceeded those heard by the Code Board; there was no overwhelming preference for appearing before the Code Board; and a cost savings was noted for the Special Magistrate process.  He stated in August 1997, the Board of County Commissioners initiated a one-year test program eliminating the Code Board; in April 1998, the Commission adopted the Special Magistrate process; and to date, the Special Magistrate continues to preside over Code Enforcement cases.  He stated the levels of enforcement typically are verbal, followed by written documentation, courtesy door hanger or business card, Notice of Violation (Official Notice), and a Special Magistrate Hearing; an Officer will meet with an owner to discuss options and work toward compliance; but ultimately, it is the property owner’s responsibility to find a remedy and bring the property into compliance.  He stated Code Enforcement’s goal is to achieve voluntary compliance by educating the owner; owners in violation are given reasonable time to comply; when cited with a Notice of Violation, the owner typically has an additional 30 days until the Special Magistrate hearing; curing an initial violation prior to the Special Magistrate hearing is considered voluntary compliance; and if a compliance occurs on an initial violation prior to the Special Magistrate hearing date, the case will be withdrawn by the County.  He noted approximately 83 percent of all cases are resolved without going to the Special Magistrate and without incurring enforcement costs.  He stated if an owner disagrees with the County concerning the enforcement of the Code or in the absence of a demonstrated and timely effort by an owner to comply with the Code, a case will be scheduled for resolution at the next available Special Magistrate hearing; when compliance does not occur prior to the hearing, the County presents its evidence to the Special Magistrate; and noted each case is reviewed by the County Attorney’s Office prior to hearing; but if a nuisance violation continues, the County may seek compliance through the court system. 

 

Assistant County Attorney Becky Biehl-Hill advised a new hearing may be granted if the Special Magistrate finds sufficient grounds to re-hear the matter; motion for re-hearing must be filed no later than 10 calendar days after the date the order is signed by the Special Magistrate, and the motion should state the grounds for the re-hearing; but a Motion for re-hearing does not stop the time for filing a Notice of Appeal; and per Section 2-178, Appeals are through the Circuit Court and must be filed within 30 days of the Special Magistrate’s execution of the Order.  She stated Chapter 162, Florida Statute and Chapter 2, Brevard County Code, sets forth the legal authority for Code Enforcement; sets forth the rules that must be followed in obtaining compliance with the new law; and authorizes creation of the Special Magistrate with the same status and authority as Code Enforcement Boards to hold hearings and assess fines against violators of the County Code of Ordinances.  She stated Code Enforcement has legal authority to enter private property to inspect and enforce the County’s Codes; principles of search and seizure apply (Fourth Amendment Protection); stated a warrant for inspection is not needed; and inspections can be performed with consent of the owner, observations from a public place, consent observation from a neighboring property, observation via open fields, and observations while attempting to make contact with the occupants.  She stated Code Enforcement is understanding of and sensitive to the special needs of the citizens of Brevard County; and this includes those who are seniors or unable to comply due to physical and other limitations.  She advised there are programs that may assist seniors, the physically disabled, and persons with other limitations; and those programs include, Community Development Block Grant Program, Help Line 211, Community Services Council, Churches, Scout Reach Program, and Junk Vehicle Towing Services.  She noted every reasonable effort will be given to assist citizens with legitimate difficulty with compliance. 

 

Mr. Harold stated in summary, Code Enforcement’s mission is to protect the health, safety, and welfare of the community as a whole within the framework of State and local codes and ordinances; Code Enforcement Officers are educated and trained professionals; Code Enforcement strives to achieve voluntary compliance; a uniform enforcement process via State Statutes, County regulations, and Department policies and procedures ensure an even-handed approach; and help is available to those with legitimate needs.

 

Commissioner Infantini inquired what would happen in a case where someone is renting out property and there is a violation on that property; stated she does not know what the landlord has in their ability to reign in a tenant that has gone amuck; and she has a hard time holding the landlord responsible when it is the tenant that is actually the violator.  Ms. Biel-Hill stated there are provisions in the Code that say that a property owner is a respondent along with the violator, that they receive notice and that they can be held liable for violations on the property; it is outlined in the Statute that if fines or liens are imposed against a property, they are imposed against the property; therefore, if a property owner does not have a case, then the County is imposing a lien against their property. 

 

Scott Knox, County Attorney, advised the Statute uses the term “violator” and “property of a violator” when it talks about Code Enforcement and liens; theoretically, when there is a landlord situation in which the landlord does not know there is a violation going on, a landlord would, typically, not be a violator; the County Ordinance defines “violator” to include someone who is the owner as well as the perpetrator of the violation; and the Ordinance and the Statute are a little different.  He stated he listened to one of the speakers’ concerns about a violator versus an owner, and how the landlord gets hit for some of these things; stated he is concerned enough about it to ask that the Board request an Attorney General’s opinion on whether or not the Ordinance can be set up that way; and he suspects there is a way to do it, but the Ordinance may not be in that format right now.

 

Commissioner Infantini inquired if the Board should be doing that; stated with the eviction laws being what they are and the times being what they are, a landlord may be put in a bad place by not being able to evict the violator; and she does not want to handicap landlords in that respect.  Attorney Knox stated he would be shocked if a lease did not say that a tenant has to use the property in a lawful manner and conform to all Ordinances. 

 

Mr. Harold noted a lot of times when there is a situation with a tenant issue, and fines start to accrue, the property owner can always go back to the Special Magistrate for a reduction of fines and use that as a mitigating factor.  Ms. Biel-Hill noted there have been specific cases where the violation process has been put on hold until the eviction has happened. 

 

Ms. Biel-Hill stated after an individual goes to a Special Magistrate hearing, if the Special Magistrate finds in favor of the County, there are a couple of different avenues that a property owner has to appeal the process, or ask for the Special Magistrate to re-hear the case.  She stated the first option is to submit a motion for re-hearing to the Special Magistrate; the violator has 10 days from the date that the order is signed; generally, what happens in the re-hearings is the Special Magistrate signs the orders that day and the Clerk promptly mails them to the property owners; and the property owners then have 10 days from the date the order is signed to submit the motion to the Special Magistrate.  She noted in that particular instance, the Special Magistrate makes the decision on  whether or not there are sufficient grounds to re-hear the case; if the property owner, or the County, chooses not to have the Special Magistrate re-hear the case, there is the appellate process in which an appeal is filed directly with the 18^th Judicial Circuit Court; and the time period for that is 30 days from the date the order is signed.  She stated it is important to note that if the aggrieved party chooses the re-hearing option, that time period does not stop the 30 days that the aggrieved party has to file the appeal with the Court.  She stated the transcript from the proceedings, along with any evidence the Special Magistrate uses to make his decision, are compiled into a record, sent to the Court, and the Court reviews that record to make a decision.

 

Commissioner Infantini stated that was based on a County Ordinance, so it is something the Board can actually change to where the property owner has to go to the Special Magistrate, but the Board can change the rule that says they then have to appeal to the Circuit Court.  Ms. Beil-Hill advised they do not have to go to the Special Magistrate if they choose not to.  Commissioner Infantini stated a lot of people do not have the money to appeal to a Circuit Court.  Ms. Biel-Hill noted that is an option they have; and if they do not want to have the Special Magistrate re-hear their case, then they have the option to appeal to the Circuit Court.

 

Chairman Nelson stated a case is not going to be re-heard unless there is new, additional evidence; and that is the same process in any Court system.  Commissioner Infantini inquired if there is a way to switch that and have the violators come before the Board instead of going back to the Special Magistrate that fined them.  Commissioner Bolin stated instead of coming to the Board of County Commissioners, there is the Code Enforcement Advisory Board.

 

Commissioner Fisher inquired who pays the salary of the Special Magistrate.  Ms. Biel-Hill replied the County pays those salaries; and currently, the Special Magistrate is under Contract.  Mr. Scott noted the Board of County Commissioners recently renewed that Contract, but there is an advertisement and interview process.  Commissioner Fisher stated there almost appears to be a conflict of interest; if the Special Magistrate is on salary to the County and the Board is paying him, his allegiance might be stronger to the Board than it is neutral. 

 

Commissioner Infantini stated it seems sometimes that the Special Magistrate, from the reports she has heard, often times defers to the County Attorneys for advice on the interpretation of the law; and she agrees that perhaps there is a conflict of interest.  Chairman Nelson stated he disagrees to the extent that the County pays for judges also. 

 

Ms. Biel-Hill stated Chapter 162 allows for the appointment of a Code Enforcement Board, as well as Article V, Section I of the Florida Constitution, which empowers the legislation to create commissions and administrative bodies with quasi-judicial powers; and that is where the Code Enforcement Board would fall, and also where the Special Magistrate falls.  She stated Chapter 162 is the legal framework the County has for all of its Code Enforcement activities in Brevard County; stated Article VI, Division II of the County Ordinances actually outlines the Code Enforcement Special Magistrate process; the Ordinance mirrors a lot of the language in the Statute, which states the violator is required to receive clear notice that they are in violation and that they have an opportunity to be heard to present any arguments that they have contesting, or contradicting the Code Enforcement Officer’s findings.  She stated Section 162.02 states the intent of the entire Chapter as providing an equitable, expeditious, effective, and inexpensive method of enforcing Codes and Ordinances in order to promote and protect the public health, safety,   and  welfare of  the  citizens   in   the  community;   the   Statute   actually  outlines   the enforcement procedures that the Code Enforcement Officers are to use, as well as the conduct of the hearing, the powers of the Special Magistrate or the Code Enforcement Board, administrative fines, liens, and the appeal procedures; and the Florida Constitution actually authorizes the creation of board and the Special Magistrate.  She noted the Special Magistrate is appointed and paid for by the local government and serves at the discretion of the County Commission; and the Special Magistrate retains latitude in his investigative duties to discover facts, hold the hearings, and draw conclusions as the basis for his official actions.  She stated the language in Chapter 162 authorizes Code Enforcement Board and Special Magistrates; the Statute specifically says, “A Special Magistrate process may be instituted and that a Special Magistrate has the same status and authority as an enforcement board”; and stated the Special Magistrate has the jurisdiction to enforce the building, zoning, land development, environmental, and other non-criminal local ordinances that safeguard the health, safety, and welfare of the community.  She stated both the Statute and County Ordinance authorize fines if the violation continues past the timeframe that the Special Magistrate outlines for compliance; both the Statute and Ordinance authorizes up to a $1,000 per day fine for a first violation, up to a $5,000 per day fine for a repeat violation, and up to a $15,000 fine for a violation considered irreparable.  She stated generally, in the Code Enforcement proceedings, based upon the recommendation of the Code Enforcement Officers, if a violation occurs past the date, which is outlined by the Special Magistrate for compliance, a fine is assessed of $25 per day for an initial violation, and $50 per day for a repeat violation, but only if there are no health and safety implications in the violation.  She noted the fines accrue either until compliance is achieved on the property, or until the fine reaches 35 percent of the assessed value of the property at the time of violation; the 35 percent cap was instituted by Brevard County; there is no cap in the Statute; and theoretically, if Brevard County chose to, it could charge a $1,000 per day fine for an initial violation with no cap exceeding the actual value of the property; but Brevard County has chosen not to do that.  She stated ultimately, the plain language of the Statute authorizes the government to enforce Codes in the Ordinances in the County; the Florida Attorney General has said, “It is clear from the legislative intent that the local governments can place enforcement of any local Code or Ordinance under the jurisdiction of Code Enforcement Boards, which also include the Special Magistrate, according to the Statutory Scheme.” 

 

Ms. Biehl-Hill stated both the Federal and Florida Constitutions provide protections for individuals’ privacy from government actions in some situations; an important question that arises is whether or not an individual had an expectation of privacy in a specific situation; and another question is whether the government action is done to protect compelling interest, and whether the action taken is done in the least obtrusive manner.  She noted generally, for Code Enforcement, the compelling interest is protection of the public health, safety, and welfare; an unfenced front yard, front porch, or a front door, are considered public, and not within the range of the Fourth Amendment; by approaching and knocking on a front door to speak with a homeowner or to leave a door tag, a Code Enforcement Officer is not doing anything different than a postman or salesman; and Florida law states, “It is clear that one does not harbor an expectation of privacy on front porch where a salesman or visitor may appear at any time.”  She stated there are generally three situations where a Code Enforcement Officer can inspect private property; the first is with the owner’s consent; the second is in which the Officer has a warrant; and the third is when there is a recognized exception to the warrant requirement.  She noted a common exception to the warrant requirement is if the violation is in the plain view of the public; a property owner is always within their right to refuse consent to an inspection by a Code Enforcement Officer, or to ask a  Code Enforcement Officer to leave their property;  at that time, the Code Enforcement Officer must leave that person’s property; however, if an Officer can view a violation from a legal vantage point, such as the sidewalk or the street, that violation can be cited because it is within view to the general public; and anything that an individual knowingly exposes to public view, there is no reasonable expectation of privacy, and is not considered a search.  She stated additionally, if the complainant or another neighbor invites the Code Enforcement Officer onto their property into their front yard, side yard, or back yard, and the Officer can observe the violation from the neighbor’s yard, that violation can also be cited because it is in the plain view of the public.

 

Commissioner Anderson stated observations can be made from open fields or vacant lots; and inquired is permission is not sought from those property owners also.  Mr. Harold replied Code Enforcement does not, as a matter of practice, go onto someone’s property without their permission, to view another property.  Commissioner Anderson inquired if Code Enforcement gets written permission from vacant property owners.  Mr. Harold advised it is not always written, but verbal permission can be used; stated a lot of times, when there is a vacant lot next to a violation, it can usually be seen from the road without any trespassing; but Officers do not go onto a lot without permission. 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Nelson, to execute 2009-2010 Emergency Management Preparedness and Assistance Grant Agreement and the Emergency Management Performance Grant Agreement; and authorize the County Manager or designee to submit and execute any additional changes, documents, or amendments required under the Grant Contract.  Motion carried and ordered unanimously. 

 

 

The Board recessed at 10:50 a.m. and reconvened at 12:10 p.m.

 

 

CODE ENFORCEMENT ISSUES (CONTINUED)

 

Robin Sobrino, Planning and Development Director, stated there are a number of frequently asked questions that have been discussed; and she would like to fast forward to one particular question relating to costs of Code Enforcement.  She noted enforcement costs only come out when somebody actually appears before the Special Magistrate; the costs assessed are uniform; and they are set forth and the Special Magistrate has no discretion, despite the facts that may be revealed in the case, to change them.  She stated the Board has heard individuals talk about a $350 cost and a $550 cost; and she would like to make sure the Board understands what is involved.  She advised on a $350 cost, it relates to an uncontested case; it is an individual who stands before the Special Magistrate, who has been cited for a violation and says they understand they are in violation and is accepting responsibility for that; and that is a $350 cost for appearing, which is to help cover the investigative costs, administrative costs, and recording fees. 

 

Commissioner Fisher inquired why an individual would have to pay the $350 if they are acknowledging that they are in violation.  Ms. Sobrino replied once someone is before the Special Magistrate they are not in compliance; at that point there has been a lot of investigative work and documents are ready to be recording; and the County’s fee schedule lists the cost at $350 for that appearance.  She noted had they come into compliance the day before the hearing, the case would be closed, and no dollars would be exchanged; however, if they are not in compliance the day before the hearing, but they admit they are not in compliance, it costs $350 for getting them to that point in front of the Special Magistrate.  She stated if an individual appears in front of the Special Magistrate and says they do not believe they have a violation, then the County Attorney’s Office has to present the case with all the evidence with the Officers, to the Magistrate in order for him to make his finding; and at that point, a $550 cost is assessed for that because now the County Attorney’s time has been involved in preparing for the case.

 

Commissioner Infantini stated it was her understanding that once an individual was cited for a second violation, they are then required to appear before the Special Magistrate, and the cost is $350 because they have now had a repeat violation.  Mr. Harold advised, Ms. Sobrino is considering violations that are initial in nature by first-time offenders; when Ms. Sobrino says that an individual comes into compliance prior to a hearing on an initial violation, then that case is closed and they do not need to go to a hearing; but Commissioner Infantini is correct in that when there is a recurring violation or a repeat violation, regardless if it was corrected prior to a hearing, the individual still has to appear.  Commissioner Infantini stated if it costs $30.48 cents to appear before the Special Magistrate, then why is the cost of $350 assigned.   Ms. Sobrino advised, that was the cost of the Special Magistrate’s time; it does not take into consideration the staff time that goes into the case; the County has gone to a uniform recovery rate; prior to this time, the County did not have a set dollar amount; and each violation was assessed the actual cost, which entailed the actual hourly rate, wages of the inspector who visited the property, the miles traveled, and it all used to be tallied as part of the actual cost of the case. 

 

Commissioner Anderson inquired if the $350 is an average of actual costs per case, to recoup what the County has spent.  Ms. Sobrino responded affirmatively.  Commissioner Anderson inquired how many people go through the Special Magistrate per month.  Mr. Harold stated staff has the number of people per year.  Ms. Sobrino noted last year, the actual number of cases on the Agenda were 1,337.  Commissioner Anderson inquired if an individual wins an appeal, is the fine reversed.  Mr. Harold stated the cases on the Agenda do not necessarily get assessed costs. Commissioner Anderson stated he is trying to figure out how much the County collected last year, and he wants to compare that to other costs, such as Code Enforcement and Budget.

 

Ms. Sobrino stated the individuals who actually pay the $350 are those that have not come into compliance before the Magistrate hearing; there are thousands of complaints that are resolved before a single dollar is assessed, but the County has had to do its due diligence in investigating those cases and try to bring those into compliance; and there are many people who do not pay anything.  Commissioner Anderson stated Code Enforcement is part of the General Fund; and the Board pays millage rates for the Officers to do their jobs.  He inquired when the $350 costs are paid, what account is it deposited into.  Ms. Sobrino replied it goes into the General Fund.  Commissioner Anderson stated the Board may not be making a dime off of it, but the perception is not good when that money is going into the General Fund; and it looks like a revenue-producing entity, whether it is true or not.  Chairman Nelson stated it is not true.  Commissioner Anderson  stated it  may  not  be true, but there are numbers  and  there are lies, and  it is  easy to make numbers however someone wants them to look.  He stated he has a real issue that somebody who is going to contest their case is charged $200; it is set up now to persuade people to not show up in front of the Special Magistrate to contest their case; and if nothing else, then that needs to be changed, as everyone should be charged the same.

 

Chairman Nelson stated there are some cases in which people have blatantly disregarded health and safety issues; and stated what Commissioner Anderson is saying is that they, basically, should not have to pay for that.  He stated that means that he, as a taxpayer, who has done nothing wrong, is contributing towards having to dealt with that issue.  Commissioner Anderson stated that is when the fines come in, and it is different than what is being discussing with the Magistrate fees.  Chairman Nelson stated if an individual prevails before the Special Magistrate, they do not have to pay anything.  He stated it seems as though there are repeat offenders; and if someone comes before the Board as a repeat offender, then that is a different issue.

 

Commissioner Fisher inquired what is the percentage of people Special Magistrate rules in favor of, versus the County.  Ms. Sobrino stated she does not have that number readily available, but it is important to understand the backdrop is that prior to going to the Special Magistrate, County staff has gone through all of the evidence with the County Attorney’s Office, and if there is any concern about there seeming to be a question about the appropriate application of the Code, that item does not go to the Magistrate until the County Attorney is confident that the evidence is there that properly reinforces the failure to meet the Code.  Commissioner Fisher inquired how many of those cases are being taken to the County Attorney. Ms. Sobrino replied whatever is scheduled for a Special Magistrate hearing will go to the County Attorney’s Office in advance.  Commissioner Fisher inquired what is the percentage of them that get dropped.  Ms. Sobrino advised a small percentage of them get dropped due to questions about the documents in evidence, but a good portion of them ended up being withdrawn simply because the owner comes into compliance before they have to appear before the Magistrate; and that is probably the most common reason. 

 

Chairman Nelson stated there are people who believe there is an error in the policy; and he would like to get the issue straightened out today.  Mr. Scott stated the Special Magistrate is present and can answer the question.

 

Stuart Capps, Special Magistrate, advised the only time a fine issue becomes an issue is on a recurring violation; the way it is set up now, individuals are brought into compliance, but they are deemed recurring; then they get hit with the minimum cost of $350; and that is something he thinks the Board should reconsider.  He stated if it is someone’s first offense and they are found to not be in violation, then there is no fine or cost; on repeat or recurring violators, if he determines a violation to be recurring, the fact that he had to make that determination requires him to impose a $350 minimum fine, per County Code, if they do not contest the violation; and if the individual contests the violation, then he has to impose $550.  Commissioner Anderson inquired if they get the $550 back if they prevail.  Mr. Capps stated if they prevail on a determination of non-recurring, then they have no cost.  He stated when someone comes before him who has a minor offense, and he perceives they did not understand that if they did not cure it before the hearing, that they would, or would not, be charged costs, he has been trying  to do to help people out by continuing it to the next hearing.   He stated one thing the Board can consider is  giving  him  more  flexibility,  that if  it is a  first  offense,  and  it is a  minor  violation, encourage him to continue those for a period of time; a lot of people come before him not understanding that had they cured the violation a day before, then there would be no charge.

 

Commissioner Fisher inquired if the individuals that come before the Special Magistrate have a mindset that they want to come into compliance, or is there more of a mindset that it is their property and that they have the right to leave it the way it is.  Mr. Capps replied there are a few people that have the mindset that it is their constitutional right to do whatever they want; those people are not going to be happy no matter what; most people want to bring their property into compliance, but there are issues that prevent it; and one thing he tries to do is point people to the right County department that can help them cure their problem.  Commissioner Fisher inquired if Mr. Capps acts as an impartial judge when people are before him.  Mr. Capps replied yes; the majority of cases are people who understand they are in violation and just need more time to cure the problem; and very few cases are contested.  He stated one thing that would help him is a policy of continuances on issues that are not public health and safety issues, and dealing with the recurring violation of $350, as that causes people problems. 

 

Commissioner Bolin inquired if Mr. Capps has said he is already doing that by his own judgment, but yet he wants the Board to make an official policy.  Mr. Capps stated it gives him a direction; stated another suggestion would be to make the Notice of Violation a little more conspicuous, and have it state if at the time of the hearing, the minimum cost that will be assessed will be $350, and that way, they will know; and he tries to accommodate people, but it would help him if he knew it was the County’s Policy.  He stated he would also suggest that the intent of the Code Ordinances are very important; the County should consider putting intent in the Ordinance that makes him find that a particular violation fits within the County’s intent, and if it does not, then a violation will not be found, or costs will not be assessed.  He stated a recurring issue he deals with at every hearing is complaining neighbors; the way it is set up now, the basis of a complaint is not relevant; some people wonder why the neighbors are not there to give testimony; and the County may want to consider that as a requirement; but the flip side of that is that people want to make an anonymous complaint.  He stated the other issue he would suggest is an appeal process without going to the Circuit Court, as that is very expensive for people; if they do not like the ruling, there should be a quick, easy, and inexpensive way to get a second opinion, whether they come before the County Commission or a separate panel; but filing fees can be as much as $3,000. 

 

Commissioner Anderson inquired if State Statute allows the County to establish a Code Enforcement Board to hear appeals only.  Ms. Biel-Hill advised she is not sure, but she can look into it for the Board.  Mr. Capps stated he thinks the County could adopt a separate appeal process and adopt an ordinance that says the 30-day requirement to go to Circuit Court is abated until that appeal process is culminated; and stated it would be premature to do otherwise. 

 

Commissioner Fisher inquired if Mr. Capps sees any County Codes that are unconstitutional.  Mr. Capps advised another suggestion is to have the Board give the Board input on some of the Codes to make them more objective; they would be unconstitutional if they were unconstitutionally vague; stated some of the Codes could be more objective, such as the height of lawns; and that is one area where staff can give the Board some input. 

 

Commissioner Infantini stated she has seen a lot of Mr. Capps’ cases where he has given continuances, thereby helping people fix their violations; and she would like to give him credit for that. 

 

Commissioner Anderson stated there are different expectations in different areas of the County; and it is hard to enforce some of the Codes uniformly because what is acceptable to someone in June Park may not be acceptable to someone on Merritt Island.

 

Mr. Capps stated he would also suggest the Board change the County Ordinance to allow him to go after the tenant in a tenant/landlord situation; the way it happens now, the landlord generally gets relief because they have to bring the property into compliance and pay the costs; but when the landlords are in front of him, he has been good at reducing the fines to almost zero if they did not create the situation; and there are a few exceptions in which the landlord does not care what the tenant does, and he or she is just collecting a rent check, but in those situations a reduction would not be warranted.

 

Commissioner Anderson stated he would be interested in creating a Code/Ordinance Review Task Force to go through the County Ordinances with staff, to begin looking at things that can be fixed quickly and easily.  Chairman Nelson stated he does not know if that is a good idea, because sometimes other things in the Code will be opened up.  He stated his preference would be for the Board to deal with specific issues so that people can talk to that specific issue and not get bogged down on everything else that is associated with it.  Commissioner Anderson stated Mr. Capps mentioned objectivity; and compared to other counties, Brevard is not as specific on intent in its Ordinances. 

 

Commissioner Fisher stated there are some things that can be done quickly; the Board could put proper notice that when an individual goes in front of the Special Magistrate, it will cost a minimum of $350; staff can go back and clean up the intent of certain things and bring it back to the Board. 

 

Commissioner Anderson stated he does not like anonymous complaints; he does not believe people are intimidated by their neighbors; the acts are not criminal in nature; and if they are intimidated by their neighbor, then the Sheriff’s Department should be involved from the beginning.  Mr. Capps stated some of the violations are temporal in nature, they are not long-standing; someone in a dispute with their neighbor could call Code Enforcement for any reason; and he thinks that is a critical fix.  He stated the person making the complaint should have to identify themselves and make the effort of showing up at the hearing to testify.  Chairman Nelson stated he has a lot of seniors in his District, and they do get intimidated.  Commissioner Anderson stated he has heard of a lot of anonymous complaints and he has yet to meet a bully; if someone does not want their neighbor to complain, then they are just a busy body who needs to mind their own business anyway.  He stated if he has a problem with his neighbor, he knocks on their door; and if a neighbor needs their house painted, he sends his son over to help paint it, but he does not call the government.  Chairman Nelson stated Commissioner Anderson only has approximately 10 percent of his District that is unincorporated, whereas he has approximately 80 percent; and Commissioner Anderson’s perspective is going to be different from his.  Commissioner Anderson stated a lot of complaint calls are from ex-wives or ex-husbands; and while no one knows the exact number, they should be tracked to find out.  He stated a lot of complaints are calls from people who have vendettas against their neighbor. 

 

Chairman Nelson stated he would like to know what that percentage is.  Commissioner Anderson stated there is no way of knowing that because anonymous complaints are allowed; and that is why he would like for the Board to get rid of the anonymous policy and force people to give their names. 

 

Commissioner Infantini stated the Board has a couple of proposed ideas by staff and sent to all Commissioners before the meeting; the ideas include the intent that has been discussed, and definitions; and there are a couple of items the Board can vote on today.  Chairman Nelson stated the Board needs to follow its own policy; there has to be a legislative intent; secondly, there has to be a strike-through Ordinance showing what was changed; and inquired why the Board would not want to follow County policy.  Commissioner Infantini stated she wants to finally move forward.  Chairman Nelson stated he wants to move forward also, but he wants to do it in a way that people can understand.  Commissioner Infantini stated she thought the reason for this Code Enforcement Workshop was to make decisions.

 

Mr. Scott stated he would propose to the Board to look at each of the issues and provide direction.  He stated the first item is Intent and Improving Clarity of Code; Public Nuisance and Maintenance of Property are two Code areas that are more subjected than they are measurable; the Board can direct staff to bring back a report identifying the aspects of public nuisance as a definition that is attempted to enforce and maintenance of property that is a condition that staff attempts to enforce; staff will bring the Board a report that identifies points of specificity that will be proposed as amendments to the Code for the Board’s future consideration; and staff can do that with the seven or eight issues that have been identified.  He stated if the Board gives staff direction today, it will be put into the Code so the Board can see how it would reside in the current Code structure; at that point the Board can direct staff to advertise it to change the Code.

 

Motion by Commission Bolin, seconded by Commissioner Infantini, to direct staff, with the intent of improving the clarity of the Code, to report back to the Board identifying specific amendments to the Code addressing “public nuisance” and “maintenance of property” definitions, and present the Board an underlined/strikethrough version of the Code amendments, and following Board direction, advertise the amendments for a future public hearing to adopt the amendments.  Motion carried and ordered unanimously.

 

 

Commissioner Infantini stated the Code Enforcement staff has offered to re-write a couple of Codes month-by-month, and show the Board the old Code and the new Code so that by the end of the year, all of the most abused problems should be identified and corrected.  Mr. Scott stated that is a good idea; there two changes that will be very critical to the success in the field as far as clarity for the Code Enforcement Officer and for the citizenry; public nuisance and maintenance of property are two big issues; stated he would propose recognizing staff limitations, and that Code Enforcement is largely an enforcement activity and not the Code writing arm, that staff will methodically go through this so that it is balancing the staff and the issues that have come forward.  He stated the anonymous complaints is another big issue; staff is looking for Board direction on whether to bring that back to give an opportunity to act on it at a future meeting.

 

Commissioner Bolin inquired if staff feels the anonymous calls are being abused, or if there is substance to those calls.  Mr. Scott stated in the past, the County has allowed anonymous calls and named calls; it is typically something that is more egregious that comes to bear that forces that change; and he can recall when the County went to the anonymous calls, there were some people that appeared before the Board who were intimidated; and those were the points that were placed in the public record that fueled the change.  He stated currently, staff sees some anonymous complaints that are unfounded.  Chairman Nelson stated if Code Enforcement gets two, unfounded, anonymous complaints, at that point, staff has the ability to then require whoever the third one is, to actually give their name; and so, if the first two complaints are unfounded, then it locks down to where Commissioner Anderson wants to be, which is that people have to give their names.  Commissioner Anderson inquired if that is done as practice right now.  Mr. Scott advised it rarely happens right now because it is his understanding that someone could have a different person make the call.  Chairman Nelson stated once there have been two anonymous complaints, the third person has to give their name.  Mr. Scott stated it is very uncommon that there is an issue of many unfounded complaints on one property; and if a Code Enforcement Officer drives by a property and sees the complaint is unfounded, then they just keep driving. 

 

Mr. Harold noted Code Enforcement Officers are trained to use discretion wisely enough to pick up on those types of issues and work with the property owner if there is a minor violation. 

 

Commissioner Fisher stated some people think a bathtub or toilet in a front yard is decorative, but the Code says that cannot be done, but the owner says it is their property to do with what they want; those are people coming before the Board; and he does not know if amending some of the issues will change those people who think they own that property and they can put what they want to in their front yard.  He stated another issue is when someone builds on their lot and does not go through the building permit process completely; they do it because that is all they can afford to do; and inquired if the Board allows that person to violate the Code.  Mr. Capps stated if it is a public health safety issue, then he thinks it changes the equation; if a permit could jeopardize someone, or a visitor to a structure that is unpermitted, and it could injure or kill someone, then that is a different issue than a non-public health safety issue; and he thinks those could be divided into two classes.  Mr. Scott stated one of the challenges is that the Board is attempting to discuss and address the process within which Code Enforcement Officers go out and address the Codes that have been established; and the other discussion is what are the community standards that are in the Code, because staff will be forever writing and changing, and amending the Code.  He stated one thing that needs to come out of this workshop is the parameters the Code Enforcement Officers are going to employ as they go out and work the Code; as for the anonymous versus named complainants, he is not feeling a consensus from the Board; and inquired if there is a consensus from the Board to change that.

 

Chairman Nelson stated he gets a lot of calls in his office anonymously that are related to that; and he deals with them on a case-by-case basis.  He stated if the Board takes away the anonymous complaints it will reduce the number of complaints, but it will also cause great issue in other areas.  Commissioner Anderson stated people can call Chairman Nelson’s office and then he can call Code Enforcement for them; if it is an anonymous call to Chairman Nelson’s office, then that is fine; but he does not think direct calls to Code Enforcement should be anonymous.  He noted his office does not accept anonymous calls.  

 

Commissioner Bolin stated she is leaning towards not accepting anonymous complaints.  Commissioner Anderson stated the Board can do it on a trial period. 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to direct Code Enforcement staff to only accept citizens complaints from names complainants for a period of 90 days, beginning November 2, 2009; noted citizens may report anonymous complaints to the respective Commission Offices, which will be transferred to Code Enforcement; and directed staff to provide the Board with a monthly comparison from the 90-day period to that previous year’s month to determine if complaints increase or decrease based upon an anonymous versus named complainant policy.  Motion carried and ordered unanimously.

 

 

Commissioner Fisher stated he agrees with both sides; there is an effort going on in District 1 to clean it up; if the anonymous calls are not allowed, it is possible it will hurt Titusville and the surrounding areas in the long-term; and stated he will accept anonymous calls to his Office.

 

Mr. Scott stated another issue is that the Code Enforcement Officers right now, in responding to a complaint, can look at the property in its entirety, and not just the issue that was the original complaint, for all of the Code violations that the property might possess; and at the time the Board adopted that policy, the thought process was that instead of nickel and diming the Officers’ efforts so they may actually travel to a property five times because it was actually the intention of the complainant to have the property cleaned up, but only one was identified.  He noted it has become a point of controversy, and inquired if the Board would want to amend that policy. 

 

Chairman Nelson stated he believes modification should only be for health and safety issues.  Commissioner Anderson stated he agrees with Chairman Nelson. 

 

Motion by Commissioner Bolin, seconded by Commissioner Fisher, to direct Code Enforcement Officers only respond to the specific complaints identified from the complainant with the exception of health/safety violations which are to also be cited; and direct that Code Enforcement Officer shall inform persons of all violations present on a property for educational purposes while citing those confirmed violations per Item 4 above.  Motion carried and ordered unanimously.

 

 

Mr. Scott inquired if the Board would like staff to present an alternative to the appeal process which goes from the Special Magistrate to the Circuit Court.  Commissioner Anderson stated yes, he would like to look into that issue.

 

Motion by Commissioner Infantini, seconded by Commissioner Anderson, to direct the Special Magistrate to continue, for at least 30 days, any non-public health/safety issue being heard if such violations can be reasonably cured within 30 days.  Motion carried and ordered unanimously.

 

 

Chairman Nelson inquired what is the process for determining what goes to the Special Magistrate; and inquired who makes the final decision.   Mr. Harold advised the County Attorney reviews all of the cases.  Chairman Nelson stated the County Attorney’s Office reviews the cases from the technical perspective; and inquired who does the sanity check about if a case could be resolved without going to the Special Magistrate.  Ms. Sobrino replied usually it is 60 days before someone would actually end up having to appear before the Special Magistrate.  Chairman Nelson inquired who looks at a case and determines if it needs to go forward.  Mr. Harold replied the Code Officer in the field has a determination of whether or not to bring that case before the Special Magistrate, but it is reviewed by the County Attorney’s Office prior to that, to make sure that it meets the intent of the Code and that the legalities are correct.  Mr. Scott stated the Code Enforcement Director works with the County Attorney’s office to manage the docket and to make sure something has not been missed.  Chairman Nelson stated he would like to see the Director begin to use more discretion about the final sanity check about if a case can be resolved before it goes to the Special Magistrate.

 

Mr. Capps stated a lot of times, if the inspector is there early, and the respondent is there; they talk to each other and resolve the issue; stated it may make sense to consider requiring a certain amount of time before each hearing, that they be encouraged to meet with the inspector to discuss their case; and if that happens, a lot of hearings just go by the wayside. 

 

Chairman Nelson stated he likes that concept, but what he would do is make it as part of the routine before transmittal of that to Mr. Capps.  Mr. Scott stated there is nothing better for people than to know they have a last minute negotiation opportunity; staff could put into Policy that it is going to have a Special Magistrate mediation session.  Chairman Nelson stated a lot of animosity gets built up between the time a case is transmitted and that timeframe.  Commissioner Anderson inquired if there is ability for staff to do one before the transmittal and then one before the Magistrate.  Mr. Capps noted the Board can give him the authority to refer a case to mediation if it is a contentious matter. 

 

Commissioner Fisher stated before a case gets to Mr. Capps, a line has been drawn in the sand; and he would hope there has been a lot of conversation and dialogue before it gets to Mr. Capps. 

 

Scott Knox, County Attorney, stated the Court model is a good model to follow, in which an individual is forced into mediation before being forced in front of any judge; and it is probably a good step to go to some kind of mediation before appearing before the Special Magistrate.  Mr. Scott stated staff has Board consensus and will implement procedurally.  He stated the Board had wanted a memorandum presenting the discussion versus the landlord/tenant phenomena that relates to the Code Enforcement issues, and staff will be presenting that memo to the Board.  Commissioner Fisher stated as a rental property owner, he has never had to deal with such issues; stated if a tenant is forcing the landlords to have to deal with the Board, before it gives them a break, they should have started the eviction process with the courts; if the landlords have not started the eviction process in trying to get that tenant out of there, and letting the tenant cost them $6,000, then shame on them.  Commissioner Anderson stated the paperwork from the initial eviction proceeding needs to be turned over to Code Enforcement.  Chairman Nelson stated there should be something in the Agreement with the tenant that says they will follow all applicable laws.  Attorney Knox advised that is a standard provision in the Contract; the owner may not always know what is going on, on the rental property;  and Code Enforcement has to notify the owner that there is a violation and give them an opportunity to do something about it.

 

Tod McNeil stated the Board has come up with some wonderful solutions and he appreciates it addressing this, but it also has to get back to a code of ethics where it becomes important to have integrity and speak clearly and be consistent; and he would like to ask the Board to establish some kind of a citizen board so there can be some citizen input. 

 

Mr. Scott stated everything that has been discussed that translates to a proposed Code change goes through the citizen-based body, which is the Local Planning Agency, before it gets to the Board of County Commissioners.

 

James Sondet stated people who have to go into the Special Magistrate do not know that they have to pay anything when they first appear; and most of them do not even think they are violating the law.  He stated when someone appears in front of the Special Magistrate they cannot defend themselves; if an individual presents to Mr. Capps that something is not the law, he will tell them that it is irrelevant or that it is not important; stated Mr. Capps does not know what the law is, and he will turn around to a Code Officer and ask them what the law is; and stated he thinks that is very wrong, especially since there are representatives present from the County Attorney’s office.

 

Attorney Knox advised the County Attorney’s Office can only represent the County in the proceeding that goes before the Special Magistrate; and the County Attorney’s Office cannot represent the Special Magistrate.

 

Mr. Capps stated the County has given him its Code, but he is not asking what the law is for the ruling, he is asking the Code Officer for his or her position, because he looks at the Code Section and makes a decision; and it is an interpretation issue.

 

Brian Hein stated he would like to add to the anonymous complaint issue; if it is not important enough for someone to state their name, then it should not be important enough for someone to go through $550 worth of his or her own hassle and time; and if the complainants are scared, there are protection orders for that; and here are plenty of laws set in place for people who are scared.  He noted the Special Magistrate charges $350 to $550 for charges and time assessed for individuals stating and making their case; and when an individual is found to be innocent, they should be able to charge for their time.  He inquired what happens to property when it is bank owned and homeowner owned, when the County imposes a lien; and inquired if that lien is enforces, and if the property is taken from the bank, even though it was a homeowner at fault, or does the County only foreclose on property that is solely homeowner owned without a bank attached to it. 

 

Attorney Knox advised the County has never foreclosed on a lien.  Mr. Hein stated that is very encouraging and he hopes it is correct. 

 

Richard Leroux stated the Mother’s Day fires in Palm Bay destroyed many homes that had septic systems; none of those people knew they had 90 days to re-certify their septic systems, or they would have to remove them and replace them with new systems; and State law says if a commercial system has been out of use for more than one year, it may be placed back in service if it is certified by a qualified licensed septic contractor.  He inquired why would there be such a higher standard on a residential property, to be certified, before it has to be destroyed.  He stated  his understanding is that the  County Charter says that County Ordinance,  if in direct conflict with State law, shall override the State law; so all the Board would need to do is say that in the case of residential septic systems, it is going to override, or write an ordinance to simply change it so that it would be the same language as for commercial systems; and if a residential septic system is out of use for more than a year, then it must be inspected and recertified by a licensed bonded septic contractor, such as the State law requires for commercial.

 

Attorney Knox advised the County Ordinance has to be consistent with State law; and the County cannot override State law. 

 

Mr. Leroux stated he has been before the Special Magistrate several times on several different issues; and if he could have settled anything with the inspector, he would not have been before the Special Magistrate.  He stated in the beginning he had two cases; one was removing debris, which he was preserving for an arson investigation, which the inspector told the Special Magistrate that the arson investigation was over with; and he had told the inspector that he did not say the investigation active, he said he had been talking with the State.  He stated on his other case, the inspector always conveniently left the room, so he never had a chance to ask him questions under oath, because he would say one thing in writing, and tell him something opposite in the field or on the phone; stated Mr. Capps told him to go out in the hallway to discuss his case with the inspectors; and when he tried to do that, the inspector immediately motioned for a security guard. 

 

Commissioner Infantini stated she researched Mr. Leroux’s cases and noted the County had given him five extensions, along with reducing his fees.  Mr. Leroux stated yes, he was given multiple extensions, but he was still being told he could not have a vehicle on his property that he had every legal right to have on his property; and stated ultimately he was fined.  Commissioner Infantini stated the Board can only fix things going forward, not going backward.

 

Jerry Brinegar state he asked Code Enforcement Manager, Bobby Bowen, what Code Officers were allowed to do and if they could go onto another person’s private property next door; Mr. Bowen said, no, that is considered telescoping, and Code Officers cannot go around a property, cannot look through a fence or over a fence; and stated if Code Officers have done that, then they have broken the law; but he has not seen one case where a Code Officer was reprimanded for doing that. 

 

Chairman Nelson stated the Board has implemented some steps that will be beneficial in trying to resolve some of the citizen concerns.

 

 

 

Commissioner Anderson stated there are areas of the County, during the current economy, where in order to make a living, people are having to give up things they would have normally done in the past; in the instance of Jill Amigh, her trucks would have been parked in a parking lot and Freightliner would perform the maintenance on it; and another instance may be an individual who owns a landscaping company and parking his equipment at a warehouse, but now cannot afford to do that; and his intent for this discussion is to ensure that the middle-class citizens who are trying to run their own businesses, were given some consideration.  He stated after talking to staff he understands there are already some things in the Code that allow certain instances for the storage of commercial equipment; and in Ms. Amigh’s instance there are remedies that would need to be changed in the Code to permit Mr. Amigh to continue to do what he is doing.

 

Mel Scott, Assistant County Manager, stated there is always a way to change the language to address a certain issue; in this instance, the Code states an individual should have at least two and a half acres to be able to park a commercial vehicle on a residential property, with the neighbor’s consent; Ms. Amigh has .6 acre; the Board could investigate whether or not it is inclined to have a Code change that would allow the minimum to be .5 acre, and/or a garage to be constructed so that the vehicle would be hidden from view, then it would be permissible; and that is the Code change that needs to occur.  He noted currently, absent the two and a half acres in a residentially zoned property, without neighbor consent, a commercial vehicle cannot be parked on residential property. 

 

Commissioner Fisher inquired if there are deed restrictions in Ms. Amigh’s neighborhood; with Commissioner Anderson responding no, there are no deed restrictions in June Park, nor are there any homeowner associations.  Commissioner Anderson stated Ms. Amigh is willing to build a shed or garage to screen their commercial vehicle; but he would like to be able to change the Code so that if the Amighs built an RV garage, that they be allowed to do that; and stated RV’s are sometimes bigger than freightliners.

 

Commissioner Infantini inquired if the freightliner would be permitted on the property if it were fully enclosed in a garage; with Commissioner Anderson responding no, it would not be permitted even if it were in a garage.

 

Mr. Scott noted a freightliner is a prohibited use; it is not addressed in the Code as something that can be in a garage; and it is something that cannot be on residential property.  Commissioner Bolin stated the Board is trying to make an adjustment so that if the freightliner is not seen from the road, then it would be permitted.  Mr. Scott stated that is correct, or it can also be fully enclosed; building a garage is not an inexpensive proposition; and with the Code change, if they construct a garage, they would be allowed to park the freightliner on their property.

 

Commissioner Bolin stated if looking at all neighborhoods and not just June Park, then there would be usage of the commercial vehicles coming in and out of the neighborhoods; and that also has to be considered. 

 

Chairman Nelson suggested Commissioner Anderson and Ms. Amigh work with staff to see if there is some legislative intent that can be done.  Mr. Scott stated staff can come up with three or four different approaches that would work with the Code, it is just up to the Board at that point. 

 

Commissioner Bolin requested when staff does its proposals, that it keep in mind all Districts. 

 

Chairman Nelson stated the difficulty is that there can be a commercial truck with a sign on it that can be removed  each night;  and  the  difference is when an  individual is  hauling pipe and other things.  Commissioner Anderson stated in the current economy, he would like to give as much leeway to those individuals as possible.

 

Commissioner Anderson inquired how often Ms. Amigh has to perform maintenance on her commercial vehicle.  Ms. Amigh replied approximately every two months.  Mr. Scott stated Ms. Amigh is going to cure the Code Enforcement temporarily, knowing the Board is going to amend the Code. 

 

The Board reached consensus to direct Commissioner Anderson to work with Assistant County Manager Mel Scott, Planning and Development Director Robin Sobrino, and Zoning Official Rick Enos, to make an effort to resolve the Code violation for Jill Amigh; and for the Board to consider a Code Amendment regarding parking commercial vehicles on private property. 

 

 

Scott Cuthbert stated he heard Attorney Knox say he would like to request an Attorney General opinion; the term “violator” is not defined in Blacks Law Dictionary; and when Attorney Knox requests the opinion from the Attorney General, he would like him to also ask about the validity of Statute 162 as a whole, because it is unconstitutionally vague.

 

Attorney Knox stated he will ask the Attorney General, but he does think he will opine on that issue, as he does not usually do that. 

 

 

 

Motion by Commissioner Anderson, seconded by Commissioner Bolin, to execute Partial Release and Indemnity Agreement regarding partial distribution of funds from the Manheimer Revocable Trust, to benefit the South Animal Care and Adoption Center (SACC).  Motion carried and ordered unanimously. 

 

 

Upon motion and vote, the meeting adjourned at 2:00 p.m.

 

 

 

 

ATTEST:                                                                     ___________________________________

                                                                                    CHUCK NELSON, CHAIRMAN

                                                                                    BOARD OF COUNTY COMMISSIONERS

                                                                                    BREVARD COUNTY, FLORIDA

_____________________

SCOTT ELLIS, CLERK

      

          (S E A L)