05-21-1986 - Special
o
o
CITY OF EDGEWATER
CITIZEN CDDE ENFDRC>>1ENT BOARD
May 21, 1986 7:00 p.m.
Shuffleboard Building
SPOCIAL MEEl'ING
MINUrES
Vice Chai.nnan Vince Turano called the rreeting to order at 6: 20. Present at the
rreeting were: Roberta fuses, Lois Kane, Delores Cucanich, Paul Biggerstaff and
Vince Turano. Chainnan Phillip Williams was absent, as was Mary Ciccarello.
Also present were: City Attorney Jose' Alvarez, Dennis Fischer, Building Official;
David Jones, Fire Safety Inspector/Assistant Code Enforcement Officer, who arrived
later in the meeting; Pat DiLeva, Assistant Code Enforcement Officer, Councilman
James Irnnan and Mrs. Irnnan.
Mr. Turano asked City Attorney Alvarez if this was. to be an info:rmal meeting where
the Board would ask questions and City Attorney Alvarez stated the purPOse of this
rreeting is a follow-up of a rreeting he had had with the enforcement group, the Code
Enforcement Officers ~ the secretary. He added that scm= of the nanbers are
veterans to the Board but we have a new secretary and new PeOple added to the staff,
so he thought it was tine to get everyone together and make sure we all know what
procedures we are following. City Attorney Alvarez said he meets often with the
Chainnan on issues ccming before the board and cases and procedures, and would
like to give the Board a little history of the Code Enforcement Board and what
it is all about.
(
City Attorney Alvarez stated there are two types of boards throughout the rmmici-
Palities of the state; you have what they call state boards and city council
l:x:>ards; statel:x:>ards are boards which a rmmiciaplity has because the State
Statutes require it; city council boards are l:x:>ards created by the Council to
help with goverrnrental decisions; Parks and Recreation is a Council Board which
used to be the Board of Governors, which advised the Council of City property
and recreational areas; that there are a number of boards which can be created
for a number of reasons. Ci.ty Attorney Alvarez stated the Planning and Zoning Board
and Code Enforcement Board are mmdated; the Board of Adjustment is elective, the
City does not have to have a Board of Adjust:rrent but if the City decides to have one,
then the State mandates the canposition of the Boards and nore importantly, the
jurisdiction of the l:x:>ard, the powers of the board~ and the powers of the roard are
contained in the State laws, which authorizes the boards.
City Attorney Alvarez went into a very thorough discussion of the cities being
creatures of the State, and that the cities cannot create a Code Enforcement Board;
they do not have that power; only the legislature has the power to create a Code
Enforcement Board and that power of the state is contained in the State Statute,
which is Chapter 162. City Attorney Alvarez then read fran Chapter 162, which
included the forming of the Board, the nanbership, the appointments, the powers
of the Code Enforcement Board, and the appeals fran the Code Enforcement Board.
City Attorney Alvarez asked the Board to read and study this chapter.
City Attorney Alvarez went into a discussion of the intent of the Legislature
when they set do.vn a legislative Code Enforcement Board; that in 1968 there was a
new Constitution of the State which abolished municiPal courts. City Attorney
Alvarez stated he did not know the reasons as to why the Legislature did not want
municipal courts but from then on, there were no nore ITBJIlcipal courts. He explained
that what transpired was the State Attorney's Office was charged with enforcing the
law which resulted in a backlog, as City Codes were practically unenforceable and
the answer was the creation of the Code Enforcement Board, that the Code Enforcement
Board really took the place of the rmmicipal judge. He also stated the prcx:::edures
for a hearing, therefore, are judicial in the terms of basic due process, and
stated the violator must be able to see the charges against him, what witnesses are
charging him, that the police must testify and prove the violation, that the violator
must have an opportunity to be heard and to cross examine the officer. City Attorney
Alvarez then said the judge will then adjudge him inncx:::ent or guilty and will sentence
him to jail, a fine, or tcth; and that is basically what the Code Enforcement Board
does, but how it does it will be discussed this evening so the Board understands
the procedures.
(.)
o
City Attorney Alvarez then asked the position of the three code officers and
Mr. Fischer explained his title is Building Official/Code Enforcerrent Officer;
that Mr. Jones and Mr. DiLeva are Assistant Code Enforcerrent Officers; that Mr.
Jones is basically Fire Safety Inspector/Assistant Code Enforcanent Officer; that
it is really similar to a Lieutenant with two Officers. City Attorney Alvarez then
infonred the Board that Mr. Fischer deals in the area of building codes, Mr. Jones
in the area of fire code violations and that Mr. DiLeva deals in everything else;
one is not exclusive of the other; it is just general areas. He continued that
the ccmplaint comes to their attention; that begins the process; it is their duty
to try and resolve the matter and if there is ccmpliance, fine; but if there is
no ccmpliance, then other steps come into play. City Attorney Alvarez then
discussed the steps that are taken from the subpoena going out to the setting of
the hearing, and that during this process, the secretary will be accumulating a
file containing facts; who the violator is; what the charges are; copies of
rrarorandums and letters; and that when it comes to the Board for hearing, they
rrust have before them a package with all that background; that they must know
what they are going to deal with and that they cannot, the night of the hearing,
just peruse through it, that they have to get it in advance and study it because
it is a serious responsibility.
City Attorney Alvarez stated that at the hearing the Code Inspector becares a
prosecutor; he becomes the State Attorney's Office, as City Attorney Alvarez
cannot. He explained that according to the Statute, the City Attorney rrRlSt make
a choice, to becare a prosecutor or the advisor to the Board, one of the two, not
both .
Mr. Turano then interjected a question as to whether the Board is to accept what
the Code Inspector is saying as fact, or is the Board to disseminate that as
also being infonnation, do they take that as a fact. City Attorney Alvarez then
questioned what are the facts; if you serve as a juror ontl1e case, what are the
facts; that the facts come right up there on the witness stands; those are the
facts, evidence. He also stressed the word "evidence" as being of two types;
live testirrony of witnesses or physical evidence, pictures of the violation,
or both; that is the evidence. City Attorney Alvarez then ccmnented that the
violation has to be established by the Code Inspector, and. that he is trained
to do that; that he will come before you and will produce records, will produCe
witnesses, will produce photographs; those are the facts, that is the violation.
City Attorney Alvarez then stated that at this point a legal tenn comes into play,
"prima facie" case; the violation has been established and now the initial burden
is for the Code Inspector to prove the violation, then he quits, he has done his
job. - The alleged violator at this point ITUlst cane forward and defend himself,
that he is also subject to produce evidence; if he brings an attorney, then City
Attorney Alvarez will be at the rreeting. City Attorney Alvarez then stated that
if the violator for any reason cannot appear to defend himself, a second chance
rrRlSt be given.
City Attorney Alvarez then referred to the facts, which are; the presentation by
the Code Inspector; what the violator has to say by presenting facts; that in the
Notice of Hearing, we usually tell the violator to bring his witnesses or whatever
evidence he may need to bring. The secretary then read from the Notice of Hearing,
and City Attorney Alvarez gave instructions to the secretary to add to the Notice
of Hearing the words "If you wish, you may bring witnesses or any other evidence
you wish to present on your behalf".
City Attorney Alvarez then proceeded to explain the various steps which will follow
after the violator has been subpoenaed; that by this time the violator has called
the secretary, he has called Mr. DiLeva; he wants to know what he is doing wrong.
Mr. DiLeva will explain to him that he can bring his witnesses, that is going to
be up to the Board at the hearing; the violator then says he will bring his lav,ryer
with him, at which time City Attorney Alvarez is to be notified irmediately that
there is a lawyer in the picture.
Citizen Code Enforcement Board
Minutes - Special Meeting of
May 21, 1986
-2-
,
o
o
Consequently, the violator will c::are before the Board and the City will present
its case, and the procedures of the hearing are: _ Call to order, case number so
and so, the secretary answers if all subpoenas have been served and all pertinent
parties notified. The Code Enforcarent Officer then presents his case with no
interruptions; the Board then goes into Findings of Facts; the secretary
will do that and City Attorney Alvarez will work with her on that. The next step
is Conclusions of Law, which City Attorney Alvarez explains, and the Board will then
issue a judgrrent giving the violator ten days to c::c.rre into compliance.
City Attorney Alvarez continued that the fine situation arises; when is a fine
irrq;:osed? The fine is part of the sentence; to irrq;:ose a fine, they arrended the
Statute recently and City Attorney Alvarez then read fran Section 162.02 as
arrended, which included the words" . . .where a pending or repeated violation
continues to exist . . ." and stated that if, within ten days, the violation is
not brought into cornpliance, the fine will corrmence. Mrs. Kane asked if the
Board could fine the violator after ten days or does he have to come back to
the Board in thirty days, the next rreeting date, so that he will really have
tWenty riore Oay.s--added--- - before he can be fined. A discussion between the
nanbers ensued with City Attorney Alvarez, who stated every case will be
different as to the arrount of fine, depending on the violation. He also
reminded the Board they have to consider non-criminal penal ties requiring non-
criminal fines and it is up to their discretion. Mrs. CUcanich asked City
Attorney Alvarez to advise the Board how to handle a violator who continues
to ignore a fine irrq;:osed by the Board, and City Attorney Alvarez answered
the Order that was originally given is recorded in the Circuit Court and it
then becanes a lien on the property, or on any other property the violator
may have if the violation occurred on property not owned by the violator.
The discussion continued as to the procedures being followed and City Attorney
Alvarez discussed a little further the steps of fining and reminded the Board
they must have all the facts fran the Chairman of the Board. Mrs. Kane then
asked for advice for the Board on the expected animal cases the Board is
exPected to receive and all the sympathy that may cane before the Board, and
Attorney Alvarez stated you must forget all sympathy, you must go by the Code
Enforcerrent Officer's findings.
Mr. DiLeva then asked if we are to send a letter of canpliance or can a telephone
call do and City Attorney Alvarez said he does everything by letter; that if
you were in court you need a letter in your files to confirm your action, and
it can be reviewed with everything being documented.
The Board then discussed with City Attorney Alvarez the idea of having discussions
right before the violator, that it is very difficult and City Attorney Alvarez
stated they must do this, that to get answers they ITDlst ask questions. Mrs. Kane
then asked about physically viewing the violation, and City Attorney Alvarez said
that would be very rare situations; the problem there would be the Sunshine Law;
not to get involved with the violator; that if it should happen they have to take
the secretary, pack the tape recorder, pack everybody and go, or they could
recess the hearing and either that sarre evening or at a subsequent date, you
reconvene and just go with the press, the tape recorder, and everything. This
subject was discussed for quite a while with City Attorney Alvarez stating if
the Board wants to get involved in this they must go alone or take the secretary,
the recorder, etc. and go view it, for their own protection.
A discussion then followed as to the power of the Board, with City Attorney Alvarez
recornrending the Board look closely at 162.0/, "Intent", where it states" . . . and
inexpensive rrethod of enforcing the codes and ordinances . . . including but not
limited to, occupational license, fire, building, zoning, and sign codes." He
further stated this means ordinances which have no criminal oenalties, and added
this is sareti1res contradictory. The secretary stated her Board was told they
would be banbarded with "dog" cases starting June 1st and wondered if they were
to fine than right then and there, to which City Attorney Alvarez said they should
not be ;fined the first tiIre they appear before the Board. -
This being an informal rreeting, Vice Chairman Turano adjourned the rreeting at
7:21.
Minutes sul:mitted by
Dorothy C. Garrity
Citizen Code Enforcerrent Board Minutes of
SPecial Meeting of May 21, 1986
-3-