HomeMy WebLinkAboutRE_ draft report itemsTodd & Dave,
Please see attachment.
I have placed updates (in red) to the items you requested.
Thank you
Sincerely,
Brian Palmer
Deputy Director Community & Economic Development/Code Enforcement Manager
City of Cape Canaveral <http://www.cityofcapecanaveral.org/>
phone (321) 868-1220 ext. 115
fax (321) 868-1247
100 Polk Avenue — P.O. Box 326
Cape Canaveral, FL 32920 <http://www.cityofcapecanaveral.org/>
From: Todd Morley <T.Morley@capecanaveral.gov>
Sent: Thursday, May 2, 2024 4:25 PM
To: Brian Palmer <B.Palmer@capecanaveral.gov>
Cc: David Dickey <D.Dickey@capecanaveral.gov>
Subject: draft report items
Brian,
Please see draft report items below.
Thanks,
Todd
Todd Morley
City Manager
City of Cape Canaveral <http://www.cityofcapecanaveral.org/>
(321) 868-1220 x218
100 Polk Avenue — P.O. Box 326
Cape Canaveral, Florida 32920
All city email addresses updated
March 2024 from
cityofcapecanaveral.org <mailto:t.morley@cityofcapecanaveral.org>
to capecanaveral.gov <mailto:t.morley@capecanaveral.gov>
1.
Issue 1:
Claim of Code Enforcement Department conducting Selective Enforcement
Peg Schaller, business owner and tenant at 116 Jackson Ave., reported to the City Manager that she requested code enforcement investigate the property located at 7802 N. Atlantic Ave
(The Moon Hut Restaurant), for evidence of a code enforcement violation related to the paving of the parking lot.
Specifically, that paving work had been performed:
1. Without a permit
2. To include the placing of new impervious pavement over an area previously pervious.
3. Without a requirement for an engineered stormwater retention facility.
The Requestor provided evidence of code enforcement acknowledgement of her request on 12/5/2022.
The Requestor provided evidence of code enforcement acknowledgement of her request of 12/14/2023.
The Requestor indicated she did not receive follow-up communication during this 12-month period and no corrective work was undertaken at the Moon Hut property. However, during this time
period, a NOV was issued for placing rocks in the drainage swale at 116 Jackson Ave. within 4 days.
The Requestor indicated that the apparent lack of communication and progress on her complaint regarding the Moon Hut for an entire year, combined with the quick action (4 days) taken
with the NOV for 116 Jackson Ave. are indicative of selective enforcement and that she felt "targeted".
#1 Response:
Clarification note: The original complaint from Ms. Schaller was on 8/22/22.
Code enforcement staff produced the following documentation of email communications with Ms. Schaller between 12/5/22 and 12/14/23:
1. (See Exhibit marked “A”) An email to Ms. Schaller dated 12/6/22, which indicates that the code enforcement department was already aware of the work without a permit and that the property
owner at 7802 N. Atlantic Ave. had been instructed to obtain a permit. Note: Prior to 12/5/22, the code enforcement department was not aware that previously pervious portion of the
property had been paved over. Staff was only aware that paving work had been done without a permit.
2. (See Exhibit marked “B”) An email to Ms. Schaller dated 6/12/23 which included an update regarding 7802 N. Atlantic Ave.
Regarding the 4-day turnaround, the following timeline has been created:
2/11/22 first complaint filed by Cowboy regarding 116 Jackson parking
3/28/22 sent original NOV to Mr. Reynolds
8/3/22 sent 1st revised NOV.
8/22/22 Ms. Schaller files complaint about 7802 N. Atlantic Ave. parking
5/24/23 “Cowboy” (a tenant), makes a complaint regarding rocks in the swale.
6/12/23 Ms. Schaller requests status update re 7802 N. Atlantic Ave. parking complaint.
6/16/23 created 2nd revised NOV which included the rocks in the swale.
7/19/23 sent 2nd revised NOV
In a follow up meeting:
* Ms. Schaller confirmed that the 4-day period is regarding the date that she requested an update (6/12/23) and the date that the 2nd revised NOV was dated (6/16/23). Note that the 2nd
revised NOV was not actually sent until 7/19/23.
* Ms. Schaller agreed that the city had provided correspondence (Exhibits A and B).
* However, Ms. Schaller:
* reemphasized her original comment that no corrective work has been undertaken at the Moon Hut parking lot.
* Asked how can staff state they didn’t know about the previously pervious area if she had reported in on 12/5/22?
* Additionally, Ms. Schaller stated that she would like to see a timeline of all Code Enforcement touches re 7802 to verify that similar timeframes were employed.
(date) Owner of 7802 applied for a permit. The application did not include information regarding the previously pervious area.
12/5/22 Ms. Schaller informed CE Staff that an area was previously pervious
(date) Permit was finaled.
(date) CE asked BD why it was approved without address the previously pervious area
(date) NOV was sent
The procedurally acceptable time span between initial inspection and NOV is greater than the procedurally acceptable time span between NOV and Revised NOV. Reason: voluntary compliance
is sought prior to NOV.
Step
“From” date
“To” date
Target time frame
Authority
1
Receive complaint
Register complaint
1. Day Day of complaint
Department Policy
2
Register Complaint
Conduct Field visit
1 day
Department Policy
3
Conduct field visit
Gain voluntary compliance
Dependent on violation
1 – 30 days
Department Policy
4
Failure to gain voluntary compliance
Forward Courtesy Letter
Varies
Officer discretion
5
Courtesy Letter
Forward NOV
Varies
Officer discretion
6
NOV
Gain Compliance
5 – 30 days
FS 162
7
NOH sent
Hold SM Hearing
10 days minimum
FS 162
8
Revised NOV, if applicable
1. day
Day of discovery at inspection
Department Policy
9
10
11
12
Issue 2:
Claim that Code Enforcement Department has produced inaccurate and incorrect public information.
Peg Schaller, business owner and tenant at 116 Jackson Ave., reported to the City Manager that the March 24, 2024 City Council agenda informational item “Update to the January 24, 2024
Special Council Meeting” contained inaccurate and incorrect public information.
Specifically, the item included a table with the following information (excerpted):
The City Council request is shown in the box labelled: “Item”, above, and is a request for “a Report showing all actions and correspondence related to” the properties. The box labelled
“Status” indicates that “Attachment 4 includes an update for the requested enforcement activity report.”
Attachment 4 indicates that “Records prior to February 11, 2022 are not available”:
As evidence, Ms. Schaller produced untitled documentation from the Code Enforcement Department which includes a timeline of activity from March 17, 2017 to January 9, 2019, disproving
the assertion that “Records prior to February 11, 2022 are not available”.
#2 Response:
Clarification: the date of the Council meeting was March 19, 2024.
Mr. Dickey stated to the CM that he unintentionally misrepresented City Council’s inquiry to Brian Palmer, instead asking Brian for all correspondence located in BS&A.
Mr. Palmer stated that at the 3/19/24 City Council meeting, that these older records reside in Laserfiche and are available. Need to verify.
In a follow up meeting, Ms. Schaller stated that her perception was that staff had purposefully omitted (decided not to include) these records in response to City Council’s request because
if they would have been included, they would have revealed that there remained previous violations which were never corrected. Ms. Schaller stated:
* That there are violations left uncorrected from 2017 and 2018,
* That there were permits applied for and not completed,
* That there was one permit that was completed, and
* Some of the permitted work she had done dealt with some of those outstanding code enforcement items.
Need to tell the story of what violations existed from 2016 and forward, if and how they were or were not addressed and by whom. Dates the violations appeared at CEB.
Issue 3:
Claim that Code Enforcement Department records received do not match the records now available.
Peg Schaller, business owner and tenant at 116 Jackson Ave., reported to the City Manager that records received do not match the records now available. She produced printed documentation
of four NOVs, all relating to Case No. 22-015:
3/28/2022 addressed to: “Respondent(s): REYNOLDS, RANDALL SHANE TRUSTEE”. After the signature of the Code Enforcement Officer, the document indicates “Certified Mailing Numbers: 7018
0680 0002 3250 9447”
6/16/2023 addressed to: “Respondent(s): REYNOLDS, RANDALL SHANE TRUSTEE”. After the signature of the Code Enforcement Officer, the document indicates “Certified Mailing Numbers: 7018
0680 0002 3250 9447”
6/16/2023 addressed to: “Respondent(s): Ellie Mae’s Tiki Bar Inc. Peggy Schaller”. After the signature of the Code Enforcement Officer, the document indicates “Certified Mailing Numbers:
7018 0680 0002 3250 9447”
8/7/2023 addressed to: “Respondent(s): REYNOLDS, RANDALL SHANE TRUSTEE”. After the signature of the Code Enforcement Officer, the document indicates “Certified Mailing Numbers: 7018
0680 0002 3250 9447”
Ms. Schaller asks, “How can one certified mailing number apply to four different letters?”
Additionally, Ms. Schaller produced a photograph of the cover page of a NOV for the same Case No. 22-015:
3/28/2022 addressed to: “Respondent(s): Ellie Mae’s Tiki Bar Inc. Peggy Schaller” and indicated that she cannot find the remainder of the document but she believed that it likely had
the same certified mailing number.
#3 Response:
Each of the Official Record copies were sent by certified mail and a copy of each Official Record copy is to be retained, accompanied by a receipt of such unique certified mailing number.
The reason that 9447 was reflected in the documents submitted to the City Manager by Ms. Schaller was because these were not Official Record copies. These documents referenced incorrect
certified mail numbers because these documents were from unofficial “working draft” versions. Working draft versions are subject to copying, editing, pasting, saving-over, etc. This
was an artifact from a previous copy & paste and save-over.
Why did Ms. Schaller possess unofficial “working draft” versions?
Unofficial working draft versions are generated in a template in BS&A, which has been set up for staff use within the BS&A system. Staff’s view of BS&A allows these templates to be viewed
and edited.
The BS&A platform has a feature to “make file viewable to public”. This is via a toggle to switch on public view or switch off public view.
In recent months, code enforcement staff was directed to make all documents for 116 Jackson Ave. viewable to the public on the BS&A platform.
As a result, these unofficial working draft versions of the NOVs were switched on, to be made viewable to the public.
However, over time, it was discovered that these working draft templates could not be opened by via the public portal. When an attempt to open them was made on the public portal, these
files would download as unopenable zip files.
This is not helpful and these documents are now being switched “off” to public view.
This problem does not occur with .pdf files or .jpgs.
Because she could not view these documents, Ms. Schaller contacted Mr. Palmer and stated that she could not open them and requested that Mr. Palmer provide these records (which were
unofficial working draft templates). She was not instructed at the time that these records would be unofficial draft working documents. Had she been instructed, this confusion would
not have existed.
Consequently, the documents provided to Ms. Schaller in fulfillment of her PRR were not Official Records.
Code enforcement staff was trained by BS&A that users had the option save draft documents in BS&A and revise them as needed. From the time code enforcement staff began using BS&A until
approximately April, 2023, working draft documents were routinely edited and “saved over” in BS&A.
These were unofficial working versions existing on BS&A which are different from the Official Record copies. These unofficial working versions were provided to Ms. Schaller in response
to her Public Records Request for records on BS&A.
Was Mr. Palmer aware that the documents he provided to Ms. Schaller were unofficial working draft documents? No.
If not, why not? Because he did not review the documents prior to sending them.
If yes, why was a disclaimer not provided? N/A
For this property (116 Jackson Ave.), the Official Record documents, bearing the code enforcement officer’s signature and including the certified mailing receipt were uploaded to BS&A
on 4/16/24 and are now viewable as pdfs.
Why did these not get uploaded unit 4/16/24? Mr. Palmer stated to the City Manager that he had been looking at titled files in BS&A which appeared to match the titled file names of the
Official Record documents. Why was it addressed at this time (or, how was it discovered)? In the course of this investigation, on 4/16/24, the City Manager noted that the documents
on BS&A did not bear the Code Enforcement Officer’s signature and relayed this to Mr. Palmer. At this point, Mr. Palmer understood the nature of the problem and made the proper documents
available to public view on BS&A and made the unhelpful, working draft documents not visible to public view.
This practice of creating unofficial working versions on BS&A has since been discontinued.
Code enforcement staff has been directed to remove such documents from public view across the platform. All open cases have been completed. Currently staff is working on the closed cases.
When this effort is complete, no working draft documents will be viewable to the public via BS&A and there will be Official Record copies in pdf. To clarify, an Official Record Document
on BS&A will be a pdf and will bear the officer’s signature and a scan of the green certified mail receipt, when available.
Finding: When a Public Records Request for working draft documents is fulfilled, confusion can be created as to what is or is not an Official Record Document when such draft document
is not marked as “draft”.
Additional investigative research:
The original NOV Official Record addressed parking spaces and bathrooms. It was sent on 3/28/22 to Mr. Reynolds. The Official Record with corresponding certified mail receipt, ending
in 9294 were uploaded to BS&A on 4/16/24. However, the working copy version of the document which resided in BS&A contained a copy & paste artifact on the last page, indicating a certified
mailing number ending in 9447.
The original NOV was then revised. The purpose of the revision: approximately 5 months had passed with no progress initiated by the property owner. In an effort to compel corrective
efforts, code enforcement staff revised the original NOV as follows:
* The document now included the word “revised”. One copy was printed and prepared for mailing to Mr. Reynolds. Because a copy was not retained, it is unknown whether the Respondent names
in this letter was changed from Reynolds to Schaller.
* Following that printing, the working draft document was revised, removing the name Reynolds and changing the name of the Respondent to Ms. Schaller and prepared for mailing to Ms.
Schaller. The violations remained the same as in the original NOV.
Both documents were sent via certified mail on 8/4/22.
Mr. Reynolds as the Respondent, was mailed with a certified mail receipt ending in 9430.
Ms. Schaller as the Respondent, was mailed with a certified mail receipt ending in 9447.
Official Record copies were not made, but certified mail receipts were kept. These certified mail receipts were uploaded to BS&A on 4/16/24.
Ms. Schaller has produced a copy of her received document.
The NOV was revised to remove the violation regarding the parking spaces because City Council had placed a stay on all code enforcement related to parking spaces at restaurants.
This 2nd revised NOV was also in two parts:
* Part 1 identified Ms. Schaller as the Respondent and addressed bathrooms and the filling of the retention area. This notice was mailed to Mr. Reynolds as a “cc” and is dated 6/16/23,
but it was actually mailed on 7/19/23. We have the Record Copy as well as the certified mail receipt, ending in 8072. This document was returned as unsigned for. This document contains
an error on the signature page, indicating a certified mailing number ending in 9447.
* Part 2 identified Ms. Schaller as the Respondent and addressed bathrooms and the filling of the retention area. This notice was mailed to Ms. Schaller and is dated 6/16/23, but it
was actually mailed on 7/19/23. We have the Record Copy as well as the certified mail receipt, ending in 8089. This document contains an error on the signature page, indicating a certified
mailing number ending in 9447.
The 3rd revised NOV is dated 8/7/23. It also addressed the retention area and plumbing fixtures. It was created, but never signed by a code enforcement officer and mailed. It is a working
draft, not an Official Record copy. It contains an error in the title (references 2nd revised NOV, but should have been titled 3rd). It also contains an error on the last page, indicating
a certified mailing number ending in 9447. Note that there was no certified mailing number associated with this document because it was not mailed.
Findings:
1. Revising a NOV with a different Respondent name is a significant change of status that warrants retaining a copy. Official Record copies were not made of the 1st Revised NOVs. This
violates departmental practice.
2. Although copies were not made of the Original Revised NOVs, it is possible that similar NOVs were sent to separate singular Respondent Parties. If this is accurate, it would confuse
the Record. In the case where there are Multiple Respondents, Departmental policy should be that all should be indicated on the NOV. Departmental practice has been to have a singular
Respondent. There is no departmental policy regarding whether or not it is appropriate to Notice separate singular Respondent Parties.
3. The 2nd Revised NOV only named Ms. Schaller as the Respondent. It did not name the owner as Respondent. This violates departmental practice.
Possible Conclusion (verify):
Possible Recommendation (verify):
There has been no establishment and enforcement of departmental standards regarding the content available to the public on BS&A.
Create and enforce departmental standards as follows:
1. Unofficial draft (working) documents are not to be made viewable by the public on BS&A.
2. Unofficial draft (working) documents must always contain a disclaimer identifying them as unofficial, i.e. watermarked “Draft” or otherwise, whether requested as Public Records or
not.
3. Official Records are to be made available to the public on BS&A.
There has been no establishment and enforcement of departmental standards regarding the creation, maintenance and distribution of certain departmental Official Records.
Create and enforce departmental standards as follows:
1. All records bearing a code enforcement officer’s signature which are sent via certified mail are Official Records.
2. Official Records, with appropriate corresponding certified mail receipt, are to be scanned and uploaded to BS&A.
3. A NOV, when revised to include a tenant as a Respondent shall be named as an additional Respondent on the same document as the Original Respondent.
Issue 4:
Claim that Code Enforcement Department made an untrue statement at the March 24, 2024 City Council meeting. “We only send Notices to the Property Owner”.
Peg Schaller, business owner and tenant at 116 Jackson Ave., reported to the City Manager that records disprove this assertion. See item above “Claim that Code Enforcement Department
deceptively manipulated/altered public records to cover up mistakes.” This item incudes Notices to both the Property Owner and the Tenant.
#4 Response:
In a follow up meeting, Ms. Schaller was presented the transcript below and confirmed that the statement was made at the January 24, 2024 City Council Special Meeting.
The January 24, 2024 City Council Special Meeting included a statement from Mr. Palmer on this topic.
The transcript from the YouTube video is below:
(Don) 1:04:10
Jackson. Are you finished for now? Council member Davis. Ok. Council member Willis. I have one quick
1:04:18
question for Dave. How do you, how do you differentiate on a notice of violation between the renter
1:04:26
occupant and the property owner? Because it seems some of these notice of violations that went to
1:04:34
the shower should have gone to the property owner. Can I answer that? The notice of violation
(Brian) 1:04:41
actually does go to the property owner, we courtesy copy the tenant. So we send a courtesy copy to
1:04:47
the tenant to make sure that they're aware of the violation that's on the property. But the notice of violation does go to the property owner and the reason why we send the notice of
violation of the
1:04:55
property owner, not because it's, you know, it's also in the Florida statute that tells us how to do that. However, we send the notice to the property owner because the property owner
is ultimately
1:05:05
responsible. If, if the magistrate decides to place a lien on the property, the tenant's not
1:05:10
affected but the property owner is. So that's why we always send the notice to the property owner.
This transcript does not include the phrase “We only send Notices to the Property Owner”.
However, it does include the phrase “we always send the notice to the property owner”.
Ms. Schaller (tenant) was named as Respondent on the 1st Revised NOV as well as the 2nd Revised NOV because the property owner had not made any progress toward compliance and code enforcement
department was now identifying Ms. Schaller as Respondent - this was done as an alternate attempt to compel compliance and Mr. Reynolds was cc’d on Ms. Schaller’s correspondence.
In the follow up meeting with Ms. Schaller, after reviewing the transcript, she agreed that there is no evidence of the use of the word “only”. However, she claims that the language
that was used implied that tenants are never named as Respondents, while she has direct knowledge the she had been named a Respondent. She stated that the dubious quality of this statement
supports her perception that Code Enforcement staff members make untrue statements publicly.
Staff has clarified that there was no intent to imply that tenants are never named as Respondents. Staff’s statement was “we courtesy copy the tenant”. This was not qualified with the
adjective “always” or “only”, or any other frequency-related adjective. Omitting a qualifying adjective regarding frequency, can leave the statement open to interpretation. In a follow
up clarification, Mr. Palmer stated that Department practice is that the Code Enforcement Officer has the option to courtesy copy the tenant, if deemed appropriate.
Because the statement can possibly be viewed as “never naming the tenant as Respondent”, Mr. Palmer later clarified that Department practice is that the code Enforcement Officer has
the option to name the tenant as Respondent, if deemed appropriate.
Finding: There was no untrue statement made. However, in the absence of written Departmental policy, oral statements can introduce scrutiny and differing interpretations of intent. There
is no Departmental policy defining when it is appropriate to courtesy copy a tenant and when it is appropriate to name the tenant as Respondent. Having such a policy would have made
Mr. Palmer’s response more conclusive.
Issue 5:
Claim that false information was recorded into the public record and distributed.
On 4/10/24, Peg Schaller, business owner and tenant at 116 Jackson Ave., provided to the City Manager three photographs with written descriptions, dates and times.
* Photograph 1: a photo showing an exterior area and an interior area in the background. The following contents are in order from foreground to background: outside, the rusted frame
of a bench swing, a washing machine, a refrigerator and caution tape covering an open garage door. Inside the garage door, buckets, a dryer, a stack of lumber, a metal table and unidentifiable
sundries.
The written description: “Picture taken of fire garage after Brian Palmer emailed staff and myself stating ‘Garage was checked today and has been cleared of debris. Monday, June 12,
2023 4:20PM IMG1880
* Photograph 2: a photo showing what appears to be the same exterior area, from a different angle of view, with the following contents: a rusted metal bench swing with torn seat fabric
and a washing machine.
The written description: “Picture taken of fire garage after Brian Palmer emailed staff and myself stating ‘Garage was checked today and has been cleared of debris. Monday, June 12,
2023 4:38 PM IMG 1881
* Photograph 3: a photo showing a partially closed garage door which appears to suffered fire damage.
The written description: “Pic of the garage door after Brian Palmer emails Todd Morley ‘Repaired garage door and now opens and closes properly’ Tuesday, January 9, 2024 4:54PM IMG 4211.
#5 Response:
As for the two photos dated June 12, 2023, refer to email correspondence timeline (Exh. B):
* June 12, 2023, 12:56pm, Ms. Schaller requested a status update regarding the garage attached to 118 Jackson Ave.
* June 12, 2023, 12:58pm, Mr. Palmer forwards the inquiry to Mr. Robinson.
* June 12, 2023, 1:58, Ms. Schaller clarifies a point about a different item.
* June 12, 2023, 4:17pm, Mr. Robinson sends an email to Ms. Schaller and others, indicating “the garage was checked today and it has been cleared of debris”.
Mr. Robinson and Ms. Schaller both later clarified that the email was referring to the area “outside” of the garage.
Ms. Schaller’s photo indicates the photo of debris was taken 3 minutes later (4:20pm).
Mr. Robinson stated that he recalled having visited the property on June 12, 2023, prior to sending the email, but was unsure of the time and that he saw no debris outside the garage.
Given this information, Mr. Robinson concluded that someone had to have moved the debris to the outside area in the time between when he left the property and the time of the photo (4:20pm).
In a follow up meeting with Ms. Schaller, she indicated that she is baffled as to why Mr. Robinson would say it was cleared. She added that the debris had not been moved since December.
She inquired if it was possible that Mr. Robinson deemed the area clear because Mr. Reynolds or some other person said it was clear? She asked if Mr. Robinson actually laid eyes on
it on June 12, 2023. Same for the garage door.
What was the actual complaint made by Ms. Schaller?
City Manager inquiry: Mr. Robinson indicated that he had no legal authority to cite a code violation for the debris outside the garage because it was not constitute lawfully obtained
evidence. Reason: a fence and gate blocked his view of the debris. Is this true? Why was field compliance pursued if there was no legal authority to compel compliance? He thought he
was being nice trying to help her out.
Finding #1: At this time, there is no practical way to verify whether the debris was removed and replaced later that same day (as Mr. Robinson claims) or whether it was never removed
at all on June 12, 2023 (as Ms. Schaller claims). Both have stood by their respective statements.
Finding #2: Mr. Robinson had no legal authority to initiate a code enforcement investigation regarding the debris outside the garage because the violation was not visible from the public
right of way, the approach to the front door or otherwise viewable without the consent of the property owner or tenant (Cowboy). This represents a violation of departmental practice
based on case law.
Finding #3: Code enforcement officer’s documenting and photo-documenting is crucial to resolving disputes such as this. There was no established departmental practice regarding the documentation
and/or photo-documentation of every violation, compliance and site visit.
As for the photo with the date of January 9, 2024, this photo only shows a garage door partially closed (note: It does not provide evidence of the door’s ability to fully function properly).
The first time CM receives this email thread was on 3/26/24 when Mr. Morrison forwarded it. Prior to that, the thread was among and between Mr. Morrison, Mr. Dickey and Mr. Palmer. In
that thread, on 1/9/24, Mr. Palmer indicated that, as of that date, the garage door had been repaired and now opens and closes properly.
I need additional information as evidence that the door was not capable of functioning properly at the time of the photograph.
At the follow up meeting, Ms. Schaller stated that there were two garage door openings, but only one had a garage door. The other opening does not have a garage door, nor is it required
to have one.
Also, Ms. Schaller asked: “Did Mr. Robinson try to open and close the garage door?” or did Mr. Robinson deem the garage door operational because Mr. Reynolds or some other person said
it was operational?
Can we access the door now to see if it is operational??
Issue 6:
Claim that Code Enforcement Department found property in compliance while a violation remained.
Peg Schaller, business owner and tenant at 116 Jackson Ave., indicated to the City Manager that she had filed a complaint regarding an individual who routinely sat in a chair on the
walkway, blocking the route to her business front entrance door. Ms. Schaller claimed that her customers had voiced concerns that the individual in the chair made it difficult for her
patrons to pass by and would have to step off the walkway, into the parking lot to walk around the individual. She stated that code enforcement responded that there is 5 ft of clear
walkway and no evidence of a violation. She claims the violation remains to this day.
#6 Response:
Mr. Palmer indicated that the tenant had been displaying merchandise on the sidewalk and added that code enforcement department staff was able to successfully enforce city code section
110-458(f): All outdoor display must maintain a minimum five foot sidewalk clearance.
The tenant complied by moving all outdoor display indoors. No NOV was issued because voluntary compliance was gained in the field.
Mr. Robinson stated that he has witnessed the chair, both occupied and not-occupied, on the sidewalk. However, because this section of code only regulates shopping centers and retail
stores using outside display, and neither the person nor chair are considered “merchandise”, the chair with or without an occupant do not represent a violation of section 110-458.
Mr. Robinson stated that he had made multiple requests of the tenant responsible for the chair to remove the chair from the walkway and to not return it to the walkway. The tenant did
remove it, but later the tenant placed the chair in the walkway again. This pattern has continued. It is a “cat & mouse” game.
In a follow up meeting with Ms. Schaller, the City Manager inquired as to whether the chair and occupant could present a violation of ADA code, which requires an accessible route to
each business entrance, by maintaining a 42” clear path of travel along the sidewalk. However, Ms. Schaller clarified that the only ADA accessible parking space is to the west of both
business entrance doors and the chair, placed east of the easternmost business entrance, makes this portion of sidewalk outside of an accessible route.
Question: if it was not a violation of code, why did Mr. Robinson make multiple requests of the tenant responsible for the chair to remove the chair from the walkway and to not return
it to the walkway? In a follow up meeting with Mr. Palmer, he stated that the original request included Ms. Schaller’s statement that the individual in the chair was “harassing” passersby.
Mr. Palmer’s answer: Mr. Robinson thought he was being nice trying to help her out. Departmental practice requires complaints regarding harassing behavior to be forwarded to BCSO
Finding #1: Having found no evidence of a violation, Mr. Robinson had no authority to request the chair and/or the chair’s occupant be moved off of the sidewalk.
Finding #2: Departmental practice requiring harassing behavior to be forwarded to BCSO was not followed.
The Fire Issue:
In a memo dated August 15, 2022, Mr. Dickey indicates that a fire occurred on August 5, 2022.
The building is a two-story building with businesses on the 1st floor and two residential apartments on the 2nd floor.
The apartments are accessible via an exterior stairway that lands at the roof level.
To gain access to the two apartments requires walking across a portion of the roof.
The fire damaged the ceiling/roof at the rear portion of the 1st floor Thrift Store (storage area), and the roof, serving as the accessway to the two apartments on the 2nd floor, was
now deemed an unsafe accessway and the apartments were placarded by the Building Official as unsafe.
However, the fire did not damage the remainder of the Thrift Store. Neither did it damage the remainder of the apartments, only the walkway to the apartments.
Further, the memo indicates that appropriate city officials had determined that:
1. The Thrift Store could continue to operate.
2. As long as the structure did not pose a public safety risk, there was no timetable placed on remediation.
Ms. Schaller indicated that persons had periodically accessed the 2nd floor apartments, spending time within them. She reported this concern to Code Enforcement staff on multiple occasions.
Mr. Robinson indicated that he placed caution tape on and around the stairwell multiple times in an attempt to prevent unauthorized entry.
He stated that when the caution tape would be removed, he would return to place more caution tape.
In recent days, Mr. Morrison has expressed to the CM a similar sentiment. Further, Mr. Morrison indicated that a great deal of time had passed before access was effectively restricted.
In a follow up meeting, Ms. Schaller referenced the memo verbiage: “As long as the structure did not pose a public safety risk, there was no timetable placed on remediation.”
She asked the following:
* Who was the city official charged with evaluating and determining that the structure did not pose a public safety risk, while she was making multiple reports that persons had periodically
accessed the 2nd floor apartments.
* Why was it not deemed a public safety risk for 16 months with evidence of people accessing the apartments?
In a follow up meeting, Mr. Palmer clarified that “remediation” is not the same as “restricting access”.
* Remediation means the restoring the premises to a usable, code-compliant condition,
* Restricting access means disallowing (effectively prohibiting or barring) entry while the premises is not in a usable, code-compliant condition.
* If a property has sufficiently restricted access, it can often go without remediation for a great length of time.
Clarification is needed from Ms. Schaller: is she referring to a 16-month time frame before the access was sufficiently restricted?
The case went to the Special Magistrate where a ruling was made on both remediation and restricted access.
Did we issue a NOV related to damage caused by the 8/5/22 fire?
Yes, a Notice of Violation was issued on 11/1/2023.
In a follow up meeting Mr. palmer was asked why did 15 months pass between the placarding of the structure and the NOV?
The answer: when a property suffers a fire loss, the owner is usually challenged to make arrangements toward remediation. For example, insurance claims, tenant evictions, loss of income.
Departmental practice is to allow reasonable time to deal with these matters.
From the time of the placarding or the premises (8/5/22) to the time of effectively restricted access (late January 2024), 17 months had elapsed. Why had it taken this long to effectively
restrict access while Ms. Schaller was making complaints that people were accessing the apartments?
Answer: The Special Magistrate could not hear the case until after the NOV. This was in 12/7/23. This was a 15-month process. The Special Magistrate gave until 12/22/23 to restrict access.
This did not happen. Then the next meeting (the Massey Hearing) was on 1/23/24. This effectively takes up the remaining 2 months. It was days after the Massey Hearing the access was
effectively restricted (the plywood boxing up of the stairs).
Why wasn’t something more effective being done to restrict access prior to the date of the NOV?
The effective restriction required the installation of an attached structure (the 2x4s and the plywood).
The installation of an attached structure requires the authorization of the Special Magistrate (the attachment of caution tape does not).
Stated a different way, the City does not have the authority to attach a structure without the Special Magistrate’s authorization.
A revised question would then be, why wasn’t the NOV advanced sooner? Consistent with Department practice, the owner was being afforded reasonable time to remediate.
Note: A NOV is required to include all violations. In this case, the NOV needed to include all remediation violations as well as the access restriction violation. Because all was wrapped
up in a single NOV and the department practice was to afford reasonable time, all went after 15 months.
That leads to this question: could a NOV have been forwarded to the Special Magistrate sooner, with the stipulation for a soon-to-come access restriction and a later-to-come remediation?
Yes, it could have been issued the day of the fire.
Finding: There is a departmental practice related to NOV timeframes for items which are strictly public-safety violations. However, there is no departmental policy related to NOV timeframes
for public safety-related items which also include a calamity which the owner is struggling to overcome. A new policy needs to address equally these two important needs:
1. public safety requirements
2. reasonable customer service requirements.
What did it say?
1. Repair all damage caused by the fire and obtain any required permits.
2. Repair or replace the non-working garage door and obtain any required permit.
3. Repair guardrails that have become loose on the stairs and obtain any required permits.
4. Install guardrails on the balcony outside the upstairs residential units and obtain any required permits.
5. Prevent occupancy of the upstairs units by securing the residence.
6. Remove any debris, equipment or miscellaneous items outside the damaged storage room.
Was there any compliance?
Did this case go to the SM? Yes
Original Hearing 12/7/2023
Massey Hearing 1/23/2024
What was the Order of the SM?
Original Hearing 12/7/2023. The Respondent shall, by no later than Friday, December 22, 2023:
a. Pull the necessary permit and demolish the staircase leading to the upstairs dwelling units at the Subject Property; and
b. Secure the garage door, including boarding over, or otherwise covering the holes so that unauthorized persons cannot gain access to the garage and so that the clutter inside the garage
is not visible to those outside; and
c. Secure the utility closet where one or more vagrants was living so that unauthorized persons cannot gain access to it.
The Respondent shall, by no later than Friday, March 8, 2024, obtain any required permits and, within the time allowed by the permit:
a. Repair all damage caused by the fire at the Subject Property.
b. Repair or replace the garage door so that it is functional.
c. Rebuild a new staircase in compliance with the City Code with secure guardrails.
d. Install guardrails on the roof/balcony outside the upstairs residential units.
e. Continue to secure and prevent occupancy of the upstairs units and utility closet by any authorized persons.
Massey Hearing 1/23/2024
The Respondent shall, by no later than Sunday, January 28, 2024:
a. Bolt and secure plywood to the main building and staircase, to form a box blocking the front and exposed side of the staircase leading to the upstairs dwelling units at the Subject
Property in accordance with the City's Exhibit "A," appended hereto. The plywood shall extend to the approximate height of the gutter on the main building; and
b. In the newly-installed fence, install a 6-foot high 2 x 4 piece of lumber to completely cover and seal the gap between the two fence posts or pickets so that the horizontal rails
are no longer exposed to a person who could attempt to use the exposed rails to climb the fence.
The Respondent shall, by no later than Friday, March 8, 2024, obtain any required permits and, within the time allowed by the permit:
a. Repair all damage caused by the fire at the Subject Property.
b. Repair or replace the garage door so that it is functional.
c. Rebuild a new staircase in compliance with the City Code with secure guardrails.
d. Install guardrails on the roof/balcony outside the upstairs residential units.
e. Continue to secure and prevent occupancy of the upstairs units and utility closet by any authorized persons.
What has happened since the SM Order?
Bolt and secure plywood to the main building and staircase, to form a box blocking the front and exposed side of the staircase leading to the upstairs dwelling units at the Subject Property
in accordance with the City's Exhibit "A," appended hereto. The plywood shall extend to the approximate height of the gutter on the main building; and
In the newly-installed fence, install a 6-foot high 2 x 4 piece of lumber to completely cover and seal the gap between the two fence posts or pickets so that the horizontal rails are
no longer exposed to a person who could attempt to use the exposed rails to climb the fence.
The March 8th 2024 deadline has passed without bringing the property into compliance with the Magistrate Order concerning:
a. Repair all damage caused by the fire at the Subject Property.
b. Repair or replace the garage door so that it is functional.
c. Rebuild a new staircase in compliance with the City Code with secure guardrails.
d. Install guardrails on the roof/balcony outside the upstairs residential units.
e. Continue to secure and prevent occupancy of the upstairs units and utility closet by any authorized persons.
This case is being presented to the Magistrate on 4/23/2024 and the City will be recommending a lien in the amount of $250.00 for the first day and $200.00 for everyday thereafter.
In a follow up meeting, Ms. Schaller showed a YouTube video from the 12/7/23 Special Magistrate meeting, wherein Mr. Robinson stated the had seen people living in the upstairs apartments
on 5/18/23. This was 9 months after the fire. She inquired: “Why was the NOV not issued until 11/1/23 with this knowledge? Wasn’t this sufficient evidence that:
1. caution tape was not enough and
2. that the property represented now represented a public safety risk?”
Additionally, Ms. Schaller referenced a timeline report produced by Code Enforcement, which begins with the following entries:
5-18-23 – Staff received a complaint from Peg Schaller that individuals are living in the garages on the property. The Sheriff’s Office spoke with staff a few days ago about them kicking
people out living in the detached garage. Staff conduced a site visit and placed caution tape blocking the entrance.
The Sheriff’s Office spoke with staff a few days ago about people living in the detached garage. They advised they kicked her out again, but she will return. They cannot arrest her unless
the property owner signs an affidavit authorizing individuals trespassing to be arrested. The individual is the niece of Shane Reynolds.
Ms. Schaller asks:
* where was the referenced caution tape placed?
* Why does this timeline not include a reference to individuals going upstairs to access the apartments, if Mr. Robinson was aware of it happening, as he stated in the video of the 12/7/23
Special Magistrate meeting? She stated that she believed this omission is evidence of Mr. Robinson’s deliberate attempt to obscure public information, in order to protect his job and
avoid being perceived as not doing his job properly.
Florida has a very broad public records law. As a result, any written communication created or received by the City of Cape Canaveral officials and employees will be made available to
the public and/or media upon request, unless otherwise exempt. Under Florida Law, email addresses are public records. If you do not want your email address released in response to a
public-records request, do not send electronic email to this entity. Instead, contact our office by phone or in writing.
Florida has a very broad public records law. As a result, any written communication created or received by the City of Cape Canaveral officials and employees will be made available to
the public and/or media upon request, unless otherwise exempt. Under Florida Law, email addresses are public records. If you do not want your email address released in response to a
public-records request, do not send electronic email to this entity. Instead, contact our office by phone or in writing.
lorida Law, email addresses are public records. If you do not want your email address released in response to a public-records request, do not send electronic email to this entity. Instead,
contact our office by phone or in writing.
Florida has a very broad public records law. As a result, any written communication created or received by the City of Cape Canaveral officials and employees will be made available to
the public and/or media upon request, unless otherwise exempt. Under Florida Law, email addresses are public records. If you do not want your email address released in response to a
public-records request, do not send electronic email to this entity. Instead, contact our office by phone or in writing.