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HomeMy WebLinkAboutcocc_council_mtg_packet_20240507_special_report_as_presentedFrom: Todd Morley Sent: Monday, May 6i2O246:S2PK4 Cc: K4iaGoforth; Danie|LeFever; David Dickey; Brian Palmer, Anthony Garganeae;Natalie Harmon; Lisa Day Subject: FVV:AGENDA 5/7/24 @4:30pm City Council Special Meeting Attachments: cocc_counci|_mtg_agenda_20240507_speda|.pdf, [K4 Report of Findings 20240507.pdf All, Please find the City Manager's Report of Findings for tomorrow's meeting attached. This is the document that we will review. The [[(]will print Council Member copies and place in mailboxes tomorrow morning and will also have number ofprinted copies available for the public. The [[(]will present this onthe monitors during the meeting. Have a good evening. Todd Tcoaa Mcoill, ey City Manager .Ci�/ofCape Canaveral (�2l)868'l220x2l8 l00Polk Avenue --PD.Box 326 Cape Canaveral, Florida 32020 All city email addresses updated March z024from cityvfcapesanaveraivrg mcapecanamraigvv From:Danie|LeFever<D.LeFever@capecanavera|.gov Sent: Tuesday, April ]O,2O242:52PM Subject: AGENDA 5/7/24@4:]OpmCity Council Special Meeting Good afternoon, Please see the attached. l�)aiiiicd� Lcfll��ever Deputy City Clerk [itvofCape Canaveral (321)868'1220x206 l00Polk Avenue --PD.Box 326 Cape Canaveral, Florida 32020 Florida has avery broad public records law. Asaresult, any written communication created orreceived bythe 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 byphone orinwriting. 1 CAPE CANAVERAL CITY COUNCIL SPECIAL MEETING City Hall Council Chambers 100 Polk Avenue, Cape Canaveral, Florida 32920 AGENDA Tuesday May 7, 2024 4:30 P.M. Please email public comments before noon to: cityclerk@cityofcapecanaveral.org For remote options, please visit: www.cityofcapecanaveral.org/city_meetings CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL APPROVAL OF AGENDA AS WRITTEN OR WITH AMENDMENTS All Agenda Section times are estimates and subject to change. PUBLIC PARTICIPATION: Any member of the public may address any items that do not appear on the agenda and any agenda item that is listed on the agenda for final official action by the City Council excluding public hearing items which are heard at the public hearing portion of the meeting, ministerial items (e.g. approval of agenda, minutes, informational items), and quasi-judicial or emergency items. Citizens will limit their comments to three (3) minutes. The City Council will not take any action under the "Public Participation" section of the agenda. The Council may schedule items not on the agenda as regular items and act upon them in the future. ITEM FOR DISCUSSION Receive City Manager's Report of Findings regarding the Community and Economic Development Department roles, responsibilities and actions for properties located on Fillmore Avenue and Jackson Avenue. UPDATE ADJOURNMENT: Pursuant to Section 286.0105, Florida Statutes, the City hereby advises the public that: If a person decides to appeal any decision made by the City Council with respect to any matter considered at this meeting, that person will need a record of the proceedings, and for such purpose that person may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the City for the introduction or admission into evidence of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. In accordance with the Americans with Disabilities Act: all interested parties may attend this Public Meeting. The facility is accessible to the physically handicapped. Persons with disabilities needing assistance to participate in the proceedings should contact the City Clerk's office [(321) 868-1220 x207 or x206] 48 hours in advance of the meeting. Report of Findings Related to the January 24, 2024 City Council Special Meeting Submitted May 7, 2024 Todd Morley, City Manager This Report details Findings resulting from the January 24, 2024 City Council Special Meeting, during which two areas of concern were discussed: 1. Certificates of Occupancy were issued while there was incomplete site development work at 304, 306, 314 and 316 Fillmore Ave., and 2. Perception of selective code enforcement related to the property located at 112, 116, 118 & 120 Jackson Ave. and a neighboring property located at 7802 N. Atlantic Ave. The City Manager's Office has undertaken an investigation into both items. The goal of this Report of Findings is to combine "what happened" with "why it happened", in an unbiased, objective manner. This report does not include recommendations. Recommendations will be forthcoming. Both areas of concern were evaluated to learn: • The effect of actions taken (The "What") • The reason those actions were taken (The "Why") The report is laid out chronologically. To maintain the report's focus on the larger picture of actions and reasons for those actions, a great deal of information has been significantly condensed. Accordingly, some timeline entries are grouped by months, with general summary actions, while others are referenced by specific dates, when such dates are usefully illustrative. Investigation #1. Certificates of Occupancy were issued while there was incomplete site development work at 304, 306, 314 and 316 Fillmore Ave. Summary of Findings: Finding #1: City Code Sec 110-223(b)(2) requires site plans be submitted to the City Engineer, Building and Code Enforcement Department, Fire Marshal and Public Works Services Department. The Building and Code Enforcement Department was not forwarded the site plan submittal. Note: The Building and Code Enforcement Department no longer exists as a single department. However, this is not a reason to exclude these departments from site plan review. This is an example of a needed update to the City Code. Finding #2: The Certificates of Occupancy (CO) were issued without an affidavit from the EOR because: o The Building Official was unaware of City Code Section 110-221, which required an engineered site plan for four or more residential units and therefore, an Engineer of Record (EOR). o The Building Official was unaware that the noted section of the CO application was intended to be used to reinforce City Code Section 110-221. Finding #3: the Building Official did not timely receive the City Engineer's email regarding the incomplete retention system and the COs were issued without the Building Official's awareness of the issue. Finding #4. Verbal approvals were relied on from the former City Engineer and the former Public Works Services Director. Investigation timeline - Site Plan. 1 • December 9, 2020. The project received a site plan approval. • Email records indicate that the site plan submittal was forwarded to the City Engineer, Fire Marshal and Public Works Department. However, the submittal was not forwarded to the Building and Code Enforcement Department for review and comment. Finding #1: City Code Sec 110-223(b)(2) requires site plans be submitted to the City Engineer, Building and Code Enforcement Department, Fire Marshal and Public Works Services Department. The Building and Code Enforcement Department was not forwarded the site plan submittal. Note: The Building and Code Enforcement Department no longer exists as a single department. However, this is not a reason to exclude these departments from site plan review. This is an example of a needed update to the City Code. Accordingly, there was no site plan review and comment from the Building Official. The site plan included an engineered plan which included an engineered stormwater drainage system. Note 1: The plan called for the installation of a new stormwater inlet in the area between the driveways of 306 and 314 which would then connect to an old/existing stormwater inlet. In the approved plans, the location of the old/existing stormwater inlet, which would have been located in the driveway of 306, was to be covered with a concrete lid to accommodate the completion of the driveway, without a stormwater inlet in the driveway. Note 2. The plan did not indicate the existence of the FPL pole and handhole, which would be in the location of the drainage swale. Permitting and ownership transfer dates. Address Permit No. Permit Date Date of final inspection Date of Certificate of Occupancy Date of sale 304 Fillmore P21-0273 March 9, 2021 Oct. 6, 2022 Oct. 6, 2022 Sept. 2, 2022 306 Fillmore P20-1455 March 9, 2021 Oct. 6, 2022 Oct. 6, 2022 Oct. 6, 2022 314 Fillmore P21-0274 March 9, 2021 July 14, 2022 Aug. 17, 2022 Aug. 26, 2022 316 Fillmore P21-0275 March 9, 2021 Aug. 17, 2022 Aug. 17, 2022 Aug. 26, 2022 Stormwater System Design Deviation. During the construction of the site, the owner (at the time, interchangeably referred to as "The Developer") met with the former Public Works Services Director, and requested a modification to the approved stormwater drainage plan. Notably, to redirect the outfall of the system to the old/existing stormwater inlet in the driveway of 306 Fillmore Ave. The former Public Works Services Director verbally approved the request and no documentation was submitted, reviewed or approved. Issuance of Certificates of Occupancy ("CO"). • August 5, 2022, the former City Engineer provided a memo to C&ED staff indicating that he had completed an inspection and noted certain site improvements were not in compliance with the approved stormwater system design and that he needed additional information. • August 16 or 17, 2022. The former City Engineer performed a site inspection at 314 and 316 Fillmore. • August 16 or 17, 2022. The former City Engineer provided verbal confirmation to the Building Official that site work was acceptable for all four units (304, 306, 314 and 316 Fillmore Ave.). • Aug. 17, 2022. Having passed all inspections as well as receiving the former City Engineer's verbal approval, the Building Official issued the COs for 314 and 316 Fillmore Ave. 2 • October 5, 2022, the former City Engineer conducted a site inspection at 306 Fillmore Ave. at the request of the pending owner (Hurst), and provided a memo to C&ED staff indicating that the detention system had not been constructed properly. Note: The Building Official did not initiate the former City Engineer's inspection and was not anticipating a coming memo from the former City Engineer. • Oct. 6, 2022, the Building Official issued COs for 304 and 306 Fillmore Ave., relying on the previous verbal approval from the former City Engineer. • October 7, 2022, the Building Official received the former City Engineer's October 5, 2022 email regarding the improperly constructed detention system. Subsequently, the Building Official, the former City Engineer and the C&ED Director discussed the former City Engineer's October 5, 2022 email and elected to pursue after -the -fact compliance for the corrective action needed for the detention system. During the months from October 2022 through February 2023: • Various site meetings and inspections were conducted among and between C&ED staff, the former City Engineer and the Developer. • Correspondence was forwarded among the new owners, Developer, C&ED staff, the Engineer of Record (EOR) (Allen Engineering), Mayor Morrison and City Manager Morley. • The Developer began attempts to resolve the outstanding issues related to the construction of the stormwater system (now an after -the -fact effort). • Unsuccessful attempts at correcting the swale were undertaken by the Developer. Note: the location of the FPL pole and handhole were in the designated swale area. At this time, the swale was constructed with a "jog" or "bump -out" around the pole and handhole. This was not shown in the approved engineered design. Additionally, some work had been performed to move the location of the swale at 314 and 316. The Developer was instructed by the C&ED Director that, if this reconfiguration of the swale would indeed remain, the city would require this reconfiguration to be evaluated and approved by the EOR and then reflected in the EOR's as - built documentation. The Developer indicated that he would cause the improvements to be made with the oversight of the EOR. The Developer contacted the EOR and requested the EOR assist by placing appropriately marked stakes in the swale to guide the corrective action. During the month of March 2023: • Stakes were placed by the EOR. • The Mayor, City Manager and C&ED Director visited the site. At this time, it was noted that the FPL pole and handhole should not be there, as all utilities serving new development are required to be placed underground. In the months between April 2023 and January 2024: • The Developer, realizing that he needed to have the FPL work done prior to completing the stormwater work, was instructed to contact FPL. • C&ED staff worked with the Developer and FPL to request the removal of the pole and the undergrounding of the utilities. • FPL made two attempts to perform the necessary work, both unsuccessful. • January 19, 2024. City Manager spoke with FPL External Affairs Manager in an attempt to prioritize the necessary utility work. • January 23, 2024. The Developer corresponded with C&ED staff, reaffirming his intention to complete the drainage swale work. 3 • January 24, 2024. Prior to the City Council Special Meeting, City Manager held a meeting with the Building Official and the C&ED Director. The CO applications for the properties were reviewed. o A particular section of the CO application was discussed — in this section it states: "Engineers or Architects statement that the site construction is in accordance with the approved Site Plan and that all construction has been in compliance with applicable codes". Next to this statement is a blank space for the Building Official to indicate the date that the EOR's statement is received. Under this section is a clarifying note: "The above requirements pertain to multi -family (over three units) and all commercial projects." It was explained that the intent of the form is to ensure that the Building Official receives the EOR's approval statement by noting the date that the EOR submits documentation that the site had been constructed in compliance with the approved engineered site plan. The Building Official was questioned as to why he wrote "per John Pekar" in the blank for "date". He responded that this was his typical procedure for Single Family Residence ("SFR") COs. It was discussed that there was an Engineer of Record (EOR) for the project (Allen Engineering). The question was asked: "why not request the EOR's statement?" The Building Official responded that he did not know why there was a need for an EOR because these were SFRs. He was directed to City Code Section 110-221, which provides the following: Sec. 110-221. - Submittal and review required. (a) Under this chapter, site plan submittal and staff review shall be required for all development and redevelopment projects, except single-family, two-family or three- family dwelling units, or alterations thereto, and minor commercial improvements. Further, site plan submittal and planning and zoning board review is required for the following: (1) New commercial buildings or structures. (2) New residential structures with four or more dwelling units. o The Building Official stated that he was unaware of City Code Section 110-221, which required an engineered site plan for four or more residential units. o The Building Official stated that he was unaware that the noted section of the CO application was intended to be used to reinforce City Code Section 110-221. • January 24, 2024, City Council held a Special City Council meeting to discuss this item. Council reached consensus on several key actions toward a resolution, as recorded in the minutes. Of note: the new City Engineer (Kimley Horn & Associates) (KHA) was tasked with evaluating the current status and making recommendations to ensure City Codes related to site development are followed. • January 25, 2024. A meeting was held in the City Manager's office between Mr. Baez (Contractor), Mr. Wittekind (owner/Developer), the Mayor, the C&ED Department Director and the City Manager. Steps toward completion were communicated to all parties. • January 30, 2024. FPL crews installed the underground electrical service. In April 2024, the Building Official submitted his resignation letter. In a subsequent discussion with the City Manager and C&ED Department Director, he restated his position that he viewed the four units as SFRs, and thereby, not requiring a site plan, an engineered common stormwater drainage system or an EOR. When again questioned about the language of City Code Section 110-221. The Building Official provided the following: • The four units are viewed from the perspective of the Florida Building Code as SFRs and were permitted as such. 4 • The four units were "in -fill" lots in a long-established subdivision and not subject to site plan - related code requirements. • SFRs only require the City Engineer's approval prior to issuing the CO. When questioned as to what his understanding of City Code Section 110-221, where it references "New residential structures with four or more dwelling units", the Building Official stated that he interprets this to mean "New Residential structures with four or more attached dwelling units (under one roof)." Note: City Code Section 110-121 provides that "Issuance of a certificate of occupancy shall not be construed as an approval of a violation of the provisions of the city code or any other applicable law." This provision of city code supports an after -the -fact completion of the site work. Note: City Code Section 110-91 provides that "Use, arrangement, construction and design at variance with those authorized by the plans, specifications, intended uses and applications shall be deemed a violation of this chapter and shall authorize the building official to revoke or suspend any previously issued building permits or certificates of occupancy, or pursue any other remedy necessary to carry out his or her duties under this chapter and other applicable law." The Building Official stated that he understood that he had the authority to suspend or revoke the COs. But because the units were now occupied, and the Developer and Contractor indicated their desire to cause the needed work to be completed, the Building Official did not exercise this option. Finding #2: The COs were issued without an affidavit from the EOR because: o The Building Official was unaware of City Code Section 110-221, which required an engineered site plan for four or more residential units and therefore, an EOR. o The Building Official was unaware that the noted section of the CO application was intended to be used to reinforce City Code Section 110-221. Finding #3: the Building Official did not timely receive the City Engineer's email regarding the incomplete retention system and the COs were issued without the Building Official's awareness of the issue. Finding #4. Verbal approvals were relied on from the former City Engineer and the former Public Works Services Director. 5 Investigation #2. Perception of selective code enforcement related to the property located at 112, 116, 118 & 120 Jackson Ave. and a neighboring property located at 7802 N. Atlantic Ave. Methodology: 1. The City Manager's investigation began with a verbal interview of Ms. Peg Schaller, business owner and tenant, 116 Jackson Ave. During the interview, Ms. Schaller referenced several documents, which were submitted to aid in the investigation. 2. Ms. Schaller's statements were later written as six (6) condensed assertions. 3. At a subsequent meeting with Ms. Schaller the assertions were submitted for her review and comment. After minor modifications, Ms. Schaller's comments were complete. 4. The City Manager then interviewed appropriate staff, consisting of the Community & Economic Development Director, David Dickey, Code Enforcement Manager, Brian Palmer and Code Enforcement Officer, Chris Robinson. Ms. Schaller's comments were reviewed in detail. 5. Although not an initial assertion by Ms. Schaller, the City Manager added a seventh (7th) inquiry into the investigation, related to a fire which had taken place on the property. 6. The City Manager then held an interim meeting with Ms. Schaller to review the status of the investigation of the six (6) initial items, and to gather her perspective on the fire item (item 7). 7. The City Manager then held additional meetings with appropriate staff to review all seven (7) items. 8. Both Ms. Schaller's comments and Staff's comments have informed the Findings reported herein. 9. These Findings were reviewed with Ms. Schaller on 5/6/24 for final comments. Issue 1: Claim of Code Enforcement ("CE") 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. 6 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 (a neighboring tenant) regarding 116 Jackson parking 3/28/22 sent original NOV to Mr. Reynolds (owner of the property) 8/3/22 sent 1st revised NOV. 8/22/22 Ms. Schaller files complaint about 7802 N. Atlantic Ave. parking 5/24/23 "Cowboy" makes a complaint regarding rocks in the swale. 6/12/23 Ms. Schaller requests status update regarding the 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 11/2/23 case closed 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 2"d 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: o reemphasized her original comment that no corrective work has been undertaken at the Moon Hut parking lot. o Additionally, Ms. Schaller stated that she would like to see a timeline of all Code Enforcement interactions re 7802 N. Atlantic Ave. to verify that similar timeframes were employed. The requested timeline: 2/15/22 CE observed the parking lot being paved, spoke to the owner and informed him that a permit was required. The owner indicated that he would get a permit. No notation was made regarding the previously pervious area. 4/23/2022 Owner of 7802 N. Atlantic Ave. applied for a permit. The application did not include information regarding the previously pervious area. 4/24/2022 permit application was administratively denied due to application being made to obtain an owner/builder permit when a contractor and appropriate licensing was required. 4/25/2022 Property owner was contacted via email regarding the denial and the reason for denial. 8/22/22 Ms. Schaller met with Mr. Dickey regarding the unpermitted paving work at 7802 N. Atlantic Ave, as well as other CE requests for investigation. At this time Ms. Schaller communicated to Mr. Dickey about the previous pervious issue. 12/5/22 Ms. Schaller requested, via email, an update regarding the parking lot at 7802 N. Atlantic Ave. and restated in the email that a portion of the property which had been paved was previously pervious. CE staff responded to Ms. Schaller, via email, that the owner was already made aware of the requirement for a permit. CE staff also informed Ms. Schaller that the owner's first permit application 7 submittal was denied and the reason for the denial. CE was made aware of the previously pervious issue on 12/5/22, as a result of Ms. Schaller's email. 3/26/23 As a matter of CE follow-up, a CE search of the permit database showed no paving permit had been approved or re -applied for since the application denial. On this same date, CE staff left a voicemail message for the owner of 7802 N. Atlantic Ave. and re -informing of the requirement for a permit and that the scope of the permit would be required to address all work performed. The previously pervious issue was not specifically called out to the owner; instead, what was called out was that the scope of the permit would be required to address all work performed. Note: The reason the issue of the previously pervious area was not specifically called out with the owner is because the permit's scope is always required to cover all work performed. The contractor is the authorized representative of the owner and is required to follow all applicable codes (including, as in this case, codes related to previously pervious areas). The issuance of a permit does not authorize any violations of code, intentionally omitted or not. If a permit omits an item from its scope, that does not relieve the burden to comply with applicable codes regarding that omitted portion of the scope. 6/12/23 Ms. Schaller contacted CE staff via email requesting an update regarding the paved parking lot and her other CE requests. Mr. Palmer responded via email that the request was being forwarded to the Code Enforcement Officer. 6/12/23 A second CE search of the BS&A permit database found no new permit application for the paving work at 7802 N. Atlantic Ave. 6/12/23 CE staff again contacted the owner of 7802 N. Atlantic Ave. about the required permit. • The owner stated that his opinion was that the work was a "patch job" that should not require a permit. • CE staff reaffirmed that it is more than that and that it required a permit application submitted by an appropriately licensed paving contractor. • The owner said he would comply. • Later that day, CE staff received a call from a roofing company asking if they would be able to obtain the paving permit for the parking lot. • CE staff responded that the scope of a roofing contractor license does not constitute appropriate licensure for the required paving permit. • The roofing contractor indicated that they would relay this information to the owner of 7802 N Atlantic Ave. 8/7/23 The 2nd permit application was submitted to Building Department Staff by Sabatino Construction Group, an appropriately licensed paving contractor. The scope of work indicated consisted of: • Work already completed. • Asphalt patches, • seal coat and • striping. The scope did not include that a previously pervious area had been paved over. 8/9/23 An after -the -fact Permit was issued with no mention of the previously pervious area issue. Building Department Staff notified CE staff that the permit had been issued. CE staff did not investigate whether the permit addressed the previously pervious condition. See Note, above. 8/9/23 the after -the -fact permit received an approved final inspection. Building Department staff did not immediately notify CE staff that the permit had received an approved final inspection. Finding #1: Had CE staff been required to review the scope of the permit application for specific items related to code enforcement, the plan review process would likely have been cause to reject the 8 permit for its failure to address the previously pervious issue. Current Building Department practice does not include forwarding code enforcement -related building permit applications to CE staff. 12/11/23 CE was informed the permit had received an approved final inspection. CE Staff informed Building Department Staff that a portion of the parking area was never previously paved when the permit was obtained and had received an approved final inspection. This newly paved area would have required St Johns River Water Management District ("SJRWMD") review. After receiving another complaint regarding the subject stormwater, staff contacted Kimley Horn & Associates (KHA), the City's engineering firm, and requested a review of the property for stormwater code requirements. 12/14/23 KHA and city staff met owner at the site. KHA recommended that the owner contact SJRWMD for review of the previously pervious issue. 1/23/24 A courtesy letter was sent to the property owner indicating KHA's recommendation. 2/26/24 The courtesy letter was returned as unclaimed. 2/27/24 The letter was hand delivered to Vincent Keenan at his office. 3/14/24 Having received no information from the owner regarding the recommended SJRWMD review, a NOV was sent to the owner. 4/3/24 NOV had not been delivered. USPS website indicated the letter as "being returned to sender". 4/4/24 NOV was hand delivered to the property owner. Regarding Ms. Schaller's request to see a timeline of all Code Enforcement interactions re 7802 N. Atlantic Ave. to verify that similar timeframes of actions were employed, the following comparative analysis is provided: Dates of Code Enforcement actions 7802 N. Atlantic Ave. 116 Jackson Ave. 1 2/15/22 CE observed the parking lot being paved and informed him that a permit was required. 2/11/22 first complaint filed by Cowboy regarding 116 Jackson parking 2 4/23/22 Owner of 7802 N. Atlantic Ave. applied for a permit. 3/28/22 sent original NOV to Mr. Reynolds 3 4/24/22 permit application was administratively denied. 8/3/22 sent 1st revised NOV. 4 4/25/22 Property owner was contacted via email regarding the denial and the reason for denial. 8/22/22 Ms. Schaller files complaint about 7802 N. Atlantic Ave. parking 5 8/22/22 Ms. Schaller met with Mr. Dickey regarding the unpermitted paving work at 7802 N. Atlantic Ave. 5/24/23 "Cowboy" (a tenant), makes a complaint regarding rocks in the swale. 6 12/5/22 Ms. Schaller requested, an update regarding the parking lot at 7802 N. Atlantic Ave. CE staff responded 6/12/23 Ms. Schaller requests status update re 7802 N. Atlantic Ave. parking complaint. 7 3/26/23 As a matter of CE follow-up, a CE search of the permit database 6/16/23 created 2nd revised NOV which included the rocks in the swale. 8 6/12/23 Ms. Schaller contacted CE staff requesting an update. Mr. Palmer responded 7/19/23 sent 2nd revised NOV 9 6/12/23 Another CE search of the BS&A permit database found no new permit application. 11/2/23 case closed 10 6/12/23 Staff again contacted the owner about the required permit. 9 11 8/7/23 The 2nd permit application was submitted. 12 8/9/23 An after -the -fact Permit was issued. 13 8/9/23 the after -the -fact permit received an approved final inspection. 14 12/11/23 CE was informed the permit had been had received an approved final inspection. 15 12/14/23 KHA and city staff met owner at the site. 16 1/23/24 A courtesy letter was sent to the property owner. 17 2/26/24 The courtesy letter was returned as unclaimed. 18 2/27/24 The letter was hand delivered to owner. 19 3/14/24 Having received no information from the owner regarding the recommended SJRWMD review a NOV was sent to the owner. 20 4/3/24 NOV had not been delivered. USPS website indicated the letter as "being returned to sender". 21 4/4/24 NOV was hand delivered to the property owner. Total CE action items = 21 Total CE action items = 9 Total span of time: 2/15/22 to 4/4/24 Total span of time: 2/11/22 to 11/2/23 Total number of days: 799 Total number of days: 629 Average length of time between action items: 799/21 =38.05 days Average length of time between action items: 629/9 = 69.88 days Length of time from initial observed violation to NOV sent. 2/15/22 to 3/14/24 = 758 days Length of time from initial observed violation to original NOV sent. 2/11/22 to 3/28/22 = 45 days Length of time from original NOV sent to 1st revised NOV sent: 3/28/22 to 8/3/22 = 128 days Length of time 1st revised NOV sent to 2nd revised NOV sent: 8/3/22 to 7/19/23 = 350 days Average days between NOVs = 45+128+350 = 523/3 = 174 Note: CE strives to process revised NOVs very quickly in order to bring an existing violation to the soonest Special Magistrate Hearing. Accordingly, the time span between initial inspection and NOV will usually be greater than the time span between NOV and any Revised NOV. Additionally, during this time, voluntary compliance is routinely sought prior to the issuance of a NOV. Below is a summary table of Departmental time goals. 10 Target time frames for code enforcement milestone dates: Step "From" date "To" date Target time frame Authority 1 Receive complaint Register complaint Same Day to 1 Day Department Practice 2 Register Complaint Conduct Field visit 1 day Department Practice 3 Conduct field visit Gain voluntary compliance Dependent on violation 1— 30 days Department Practice and Officer discretion 4 Failure to gain voluntary compliance Forward Courtesy Letter (not certified) Goal: 1-30 days. Variable dependent on working toward compliance. Department Practice and Officer discretion 5 Courtesy Letter followed by failure to gain voluntary compliance Forward NOV Varies. Department Practice and 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 Gain Compliance 5 — 30 days Department Practice and Officer discretion However, for Ms. Schaller's inquiry, a better metric would be a comparison of the date of initial site visit to date of NOV Sent for the two properties. CMO and CE have recently started looking at this metric using data exported from BS&A. The trend that has appeared is that there is a wide range of data. However, the average length of time between the date of initial visit and date of NOV sent is approximately 90 days. With this information applied to the two addresses above, the comparison is below: 7802 N. Atlantic Ave. 116 Jackson Ave Date of initial visit Date of original NOV Number of days Difference from average (90 days) Date of initial visit Date of original NOV Number of days Difference from average (90 days) 2/15/22 3/14/24 758 +668 2/11/22 3/28/22 45 -45 116 Jackson Ave., is less than the average, but much closer to the average (a difference of -45 days) than 7802 N. Atlantic Ave. (a difference of +668 days). 7802 N. Atlantic Ave. is therefore a statistical outlier. Possible reasons for this include: Prior to the issuance of the original NOV, the owner of 116 Jackson Ave. specifically requested the original NOV. This likely had the effect of decreasing the number of days between initial visit and NOV sent. For the property at 7802 N. Atlantic Ave.: • From the time that CE informed the owner that a permit was required to the time permit was issued: 540 days. • From the time the permit achieved an approved final inspection until CE was informed the permit had been had received an approved final inspection was 124 days. 11 Finding #2: the owner at 7802 N. Atlantic Ave. was afforded an excessive amount of time between the date of initial visit and date of original NOV. A tool for the evaluation of such timeframes has not historically been employed. Applying this metric in this investigation has been a useful tool to detect this statistical anomaly. Statistical anomalies can cause confusion and perceptions of selective enforcement. Developing and using a monitoring tool is critical going forward. 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): 116, 118 and 120 Jackson Avenue: Item Status 1. Provide a Report showing all actions and A response to this item was split into two correspondence related to Code documents. Attachment 4 includes an update Enforcement at 114, 116, 1118 and 120 for the requested enforcement activity report. Jackson Avenue for the period from January 1, 2016.through January 24, 2024..The Report The following folder has been created in shall include all records available, whether Laserfiche that contains all of the responsive generated by the City's BS&A software email correspondence: CC-LF\Public Records system or any other record storage method Requests and Reports\Jackson Avenue Code employed by the Ciity"s Code Enforcement Enforcement Correspondence Department. 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. 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 12 • Some of the permitted work she had done dealt with some of those outstanding code enforcement items. Below is a timeline summary of CE actions, permits issued, from August 8, 2017 — September 10, 2019: 4/6/17 The original NOV was issued. 8/27/18 Revised NOV issued. 9/19/18 The NOV was presented to the CEB. Item was tabled until the next meeting. 1/24/19 The CEB held a meeting. However, the owner was in the process of obtaining permits and the Case was not presented to the CEB. March 2019 Dotty's Bar closes. April 2019 — December 2019 Ms. Schaller was remodeling the tenant space. December 2019 Ellie Mae's opens. The violations and the current status: • Repair/replace all improperly installed electrical equipment in accordance with I.P.M.C. Correct/eliminate electrical hazards in accordance with I.P.M.C. Provide ground fault circuit interrupters in accordance with the I.P.M.C. 8/25/2017 Permit issued. Permit received approved final inspections and these violations were found in compliance. An additional electrical permit was issued 6/26/2019 for expansion of the electrical system. • Repair/replace roof, flashing, gutters and downspouts that are not sound, tight, have defects that admit rain, not in good repair and have obstructions in accordance with the I.P.M.C. 12/11/2017 permit issued. Permit received approved final inspections and this violation was found in compliance. • Affix a currently valid license tag registered to the utility trailer. Trailer was removed. • Remove all dead plants, refuse and debris. 9/20/2018 Property found in compliance • Protect all exterior surfaces from the elements and decay by painting or other protective covering or treatment in accordance with the I.P.M.C. 9/20/2018 Property was painted. • In accordance with City Code maintain the exterior in a clean, sanitary, safe condition and in good repair. Clear the premises of all nuisances, litter, rubbish, debris, objects, material or conditions which may create a health or fire hazard. Fences shall be maintained so as not to constitute a blighting or deteriorating effect in the neighborhood. 9/20/2018 Property found in compliance • Maintain the premises free of filth, garbage, trash, refuse, debris, inoperative machinery and clean up pet excretions from parts of the premises which are accessible to and used by persons on the premises. 9/20/2018 Property found in compliance • Affix numbers indicating the official numbers for each principal building or each front entrance clearly visible and distinguishable from the street on which the property is located. 11/10/2018 Property found in compliance • Repair/replace every window and door frame not in sound condition, good repair and weather tight in accordance with the I.P.M.C. 12/4/2018. Original Permit issued. Expired on 6/2/2019. Later, 9/10/2019 permit again issued. Permit received approved final inspections and this violation was found in compliance. • Provide safe electrical wiring and devices on the premises in accordance with the I.P.M.C. 13 6/26/2019 Permit issued. Permit received approved final inspections and this violation was found in compliance. • Replace/repair the buildings, electrical, mechanical and plumbing systems which are unsafe, unsanitary, or do not provide adequate egress, or which constitute a fire hazard, or are otherwise dangerous to human life. 6/26/2019 Permit issued. Permit received approved final inspections and this violation was found in compliance. 7/11/2019 Permit issued. Permit received approved final inspections and this violation was found in compliance. • Replace/repair every leaking or defective plumbing sewer line in accordance with the I.P.M.C. 7/11/2019 Permit issued. Permit received approved final inspections and this violation was found in compliance. • Pave and properly mark all vehicular use areas in accordance with City Code. 7/25/2019 Permit issued. Permit received approved final inspections and this violation was found in compliance. • Provide the correct number of parking places in accordance with City Code. This was not addressed by permit and was considered to no longer be a violation once Dotty's closed. Subsequently, City Council approved an ordinance requiring no minimum parking requirements for Restaurants. • Repair/replace all exterior doors, door assemblies and hardware not in good condition in accordance with the I.P.M.C. 9/10/2019 Permit issued. Permit received approved final inspections and this violation was found in compliance. • Repair/replace all interior surfaces, including windows and doors, not in good, clean and sanitary condition in accordance with the I.P.M.C. No permit was required. The premises was subsequently closed. The new tenant corrected. Finding: one permit had expired, but was subsequently achieved and completed. All of the above violations have been cured and the case was found in compliance. 14 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. 15 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 so 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. Why not? Because he did not review the documents prior to sending them and the documents that were requested were public record and were forwarded to Ms. Schaller due to her request. 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 16 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, the code enforcement officer indicated that he revised the original NOV as follows: • The document now included the word "revised". One copy was printed and prepared for mailing to Mr. Reynolds. It is unknown who was named Respondent. • The working draft document was revised to name Ms. Schaller as Respondent 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 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, of these documents, 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. Finding #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. Finding #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. The NOV was again 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. Finding #3: The 2nd Revised NOV only named Ms. Schaller as the Respondent. It did not name the owner as Respondent. This violates departmental practice. Note: A 3rd revised NOV was created, dated 8/7/23, but was never issued. 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 17 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. 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. 18 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. 19 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 (Exhibit 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 the Code Enforcement Officer. • June 12, 2023, 1:58pm, Ms. Schaller clarifies a point about a different item. • June 12, 2023, 4:17pm, the Code Enforcement Officer sends an email to Ms. Schaller and others, indicating "the garage was checked today and it has been cleared of debris". The Code Enforcement Officer 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). The Code Enforcement Officer 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, the Code Enforcement Officer 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 the Code Enforcement Officer would say it was cleared. She added that the debris had not been moved since December. She inquired if it was possible that the Code Enforcement Officer deemed the area clear because Mr. Reynolds or some other person said it was clear? She asked if the Code Enforcement Officer actually laid eyes on it on June 12, 2023. Same for the garage door. 20 What was the actual complaint made by Ms. Schaller? "The garage attached to 118 Jackson Ave has not been cleaned or secured." City Manager inquiry: Did the Code Enforcement Officer have legal authority to cite a code violation for the debris outside the garage? Yes, there was no fence at the time, simply a piece of plywood that was placed to block access. This made the area viewable from the parking area to the east. Finding #1: At this time, there is no practical way to verify whether the debris was removed and replaced later that same day (as the Code Enforcement Officer 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: 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. 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 the Code Enforcement Officer try to open and close the garage door?" or did the Code Enforcement Officer deem the garage door operational because Mr. Reynolds or some other person said it was operational? Mr. Palmer later clarified that the Code Enforcement Officer stated that he did not attempt to open or close the garage door himself, he observed the garage door open and then observed the garage door closed partway. Mr. Reynolds informed the Code Enforcement Officer the garage door opens and closes with some effort. With this statement, the Code Enforcement Officer made the assumption that the door was capable of closing to 0% open. Mr. Palmer also later clarified that the Code Enforcement Officer stated that he did not observe the door fully closed (to the point that it was 0% open). Can we access the door now to see if it is operational? It has since been boarded up on the outside. Can we see it from the inside? 5/3/2024 The property owner was contacted and CE requested access to the garage to see if the door was in fact operational. The property owner stated he was not in town and he does not authorize the city to enter his property. He also stated the case has gone to the Special Magistrate, his property has been liened, and he will be selling the property soon and does not want to deal with this anymore. Finding #3: Without having seen the door travel fully from a 100% open position to a 0% open position, the Code Enforcement Officer should not have accepted the owner's statement that the door was capable of closing (to 0% open), and further, should not have instructed the Code Enforcement Manager that the door opened and closed properly. Accepting verbal information should not be a substitute for verification. 21 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. The Code Enforcement Officer 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. The Code Enforcement Officer 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 the Code Enforcement Officer 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: the Code Enforcement Officer thought he was being nice trying to help her out. Departmental practice requires complaints regarding harassing behavior to be forwarded to BCSO. The 2/11/22 Field Notes state: "The chairs are not in violation since there is five feet in front of the chairs they sit in to allow for unobstructed pathway in front of his store." Her question is: why would the Code Enforcement Officer state that there was 5 ft of clear walkway if there is not, with the chair present? In a follow up meeting with Mr. Palmer, he stated that this statement is simply an error and he will place an updated corrective note in the Field Notes. 22 Finding #1: Having found no evidence of a violation, the Code Enforcement Officer 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. 23 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. The Code Enforcement Officer 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, Mayor 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 secured against access for 17 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 of 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. 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? 24 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 and loss of income. Departmental practice is to allow reasonable time to deal with these matters. From the time of the placarding of 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 was sent. This was on 12/7/23. This was a 15-month process. The Special Magistrate gave until 12/22/23 to restrict access. This did not happen. 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 as soon as 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, and 2. Reasonable customer service requirements. What did the SM Order 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. 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? 25 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? Access to the stairs has been sufficiently restricted by the forming of a box blocking the front and exposed side of the staircase; and The exposed fence rails have been secured against climbing. The March 8, 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. 26 This case was presented to the Magistrate on 4/23/2024 and the property is now accruing a lien of $200 for the 1st day and $100 for every day thereafter. In a follow up meeting, Ms. Schaller referenced a YouTube recording from the 12/7/23 Special Magistrate meeting, wherein the Code Enforcement Officer stated he 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. the property now represented a public safety risk?" Additionally, Ms. Schaller referenced a collection of timeline entries of field notes which had been 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? Answer: 1. On the main entry door to the apartment units upstairs, 2. on stairwell, and 3. on the attached garage door opening. • Why did this timeline not include a reference to individuals going upstairs to access the apartments, if the Code Enforcement Officer was aware of it happening, as he stated in the video of the 12/7/23 Special Magistrate meeting? • Answer: There was no field note entry reported in this document regarding the individuals going upstairs. However, Case Number 23-183 was created in response to this issue. In the BS&A Field Notes for this case, there is an entry dated 9/27/23 which states: "9/27/23 - Staff received a complaint that individuals are again living in the upstairs unit units posted as unfit for human occupancy. Staff conducted a site visit and found no one in the units. The door along with the stairs was taped off with caution tape. Staff also spoke with "Cowboy" who said he was not aware of anyone living upatirs again. The property was taped again." Additionally, this was mentioned by the Code Enforcement Officer during the SM Hearing on 12/7/23. 27