HomeMy WebLinkAboutItem R14
Meeting Date: February 17, 2010
Bulk Item: Yes No XX
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Division: County Attorney
Staff Contact Person: Cynthia L. Hall x 3174
AGENDA ITEM WORDING:
Request by property owner Penny May for elimination of filles in Code Enforcement Case CE07020284.
ITEM BACKGROUND:
The property owner owns and has rented out a mobile home in Key Largo Trailer Village, which she
has rented out. In February 2007, Monroe County Code Enforcement investigated a complaint from a
tenant. The inspection on February 26, 2007 showed rotten floorboards, mold and mildew, broken
windows, and an exposed electrical panel. On March 9, 2007, after a code enforcement hearing, Ms.
May was found in violation of two code sections - unsafe and renting without business tax. The
property owner did not appeal at that time.
The Special Magistrate imposed fines of $100 per day per count plus $100 costs but stayed the fines
until July 27, 2007 to give Ms. Maya chance to apply for a RaGa exemption and a demolition
permit. Ms. May received her RaGa exemption letter in August 2007, but did not apply for a
demolition permit at that time. Therefore, in July 2007, the Special Magistrate reinstated the fines but
stated that Ms. May could ask to have them mitigated once the violations were corrected.
Ms. May's contractor did not apply for the demolition permit until January 14, 2008. Ms. May's
contractor did not pick up the permit on March 17, 2008, about 2 weeks after he was told it was ready.
The first inspection failed. The second inspection passed on March 31,2008. Fines stopped running
on that date.
At the property owner's request, the matter was placed on the Special Magistrate's calendar in April
2008 so that the property owner could ask for mitigation of fines. On May 14, 2008, after taking
various factors into account, the Special Magistrate issued an order saying that the fines ($56,800)
should be reduced to $5,000, provided they were paid within 45 days of the date of the order, and if
not paid, the fines would be reinstated. Cost of $100 were also due.
Neither the fines nor the costs were ever paid. Instead, Ms. May filed an appeal- from the May 2008
order mitigating the fines -- and also a complaint alleging that the County had violated her civil rights
(42 USC 1983).
That case has been pending in front of Judge Garcia for fourteen months. In October 2009, the
property owner and the County agreed to stay the appeal for thirty (30) days, to give Ms. Maya
chance to appear before the BOCC. The County has a Motion to Dismiss the appeal scheduled for
December 10, 2008.
The County Attorney offered to settle the fines for 25% of the accrued amount. The property owner
rejected this offer and asked for no fines or costs. The County Attorney's Office eXplained that we did
not have the authority to settle for this amount, and that it would require an appearance in front of the
BOCC.
In the property owner's defense, (a) some of the initial damage resulted from hurricanes; (b) she
boarded up the property to prevent occupancy immediately after being found in violation; and (c) she
has been attempting to manage this property from Indiana, where she lives.
In addition to the code enforcement fines and costs that have not been paid, the County's actual costs
of litigation - time and fees incUlTed by the County in the appeal and lawsuit filed by Ms. May -
currently total approximately $3,500.
PREVIOUS RELEVANT BOCC ACTION: On May 21,2008, the BOCC enacted Resolution 148-
2008, authorizing the County Attorney's Office to settle code enforcement cases for no less than 25%
of accmed fines plus actual costs.
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATIONS: Staff recommends settlement in the amount of25% ofaccmed fines
and costs per Resolution 148-2008, or at least an amount no less than the original (mitigated) amount
imposed by the Special Magistrate plus some amount to cover staff time in handling the litigation.
TOTAL COST:
COST TO COUNTY:
BUDGETED: Yes No
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes No AMOUNT PER MONTH_ Year
APPROVED BY: County Atty ~ ~MB/PurChaSing _ Risk Management_
DOCUMENTATION:
DISPOSITION:
Included x
Not Required_
AGENDA ITEM #
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TO:
MAY PENNIE 0
3590 WILLOW GROV ROAD
CENTERVILLE, !N 47330
MONROE TY"t'1015EENFOR~-E~T
"UNSAFEl! ~
NOTICE OF VIOLATION j
03/06/07
CASE NUMBER: CE070202S4
00460610000000
71 2ND CT /K L TRAILER VILLAGE
KEY LARGOr FL 33037
DEAR PROPERTY OWNER I TE~ANT,
RE NUMBER:
LOCATION:
You are hereby notified that ~n !?Spection of the above
referenced property on ~~~ ~ found violations of the
following. Monroe County ode.r.. $act.ion.(.s h ... a-.... .
12.1-1
An occupational license is require~ for the rental of your
home.
Corrective Action Required:
Contact the Monroe county Tax collector and obtain an
occupational license for running a business. Provide proof
of oocupational lioense to this office upon receipt.
6-4(e.)(c)
MOBILE HOME HAS BROKEN WINDOWS, MOLD AND MILDEW, SPONGY
FLOORS IN SOME AREAS, AND EXPOSED ELECTRICAL BO~ IN CLOSET,
Corrective Action Required)
By either, (1) obtaining a buildin9 permit and bringing the
unsafe building into compliance with all current building
codes, or (2) obtaining a demolition permit and remove all
offending structures on the subject property.
NOTE I Monroe County's web page, which includes all Monroe
County Codes is located at: www,monrOQcounty-fl.gov, then choose
Monroe County Code~
NO EXTRA TIME IS GIVEN TO COMPLY as this violation poses
a serious threat to the public health, safety, and welfare.
The violation(s) listed herein do not necessarily constitute
all tha violations, which may exist with regards to this
matter/property,
NOTE I THIS!S ALLEGED TO BE AN UNSAFE VIOLATION AND WILL Be
presented to the Code Enforcement Special Magistrate on ~~az9.~j1
even if the violation(s) has been corrected prior ~o the peci~l
Magistrate haa~inq. Should a violation be found to exist, fines
may be impo.ed b.ginnin:.~m ~n~hi. :~
~ LINK) DrANE rt r
'ft~r\\?;\\
<::e'd
Wd bV: tl Lee<::-<::t-~~W
Code Enforcement Inspector
I hereby certify that a copy hereof has baan furnished to the
above-named addresBee(s) by certified mail, Return Receipt
Requested, No. 7006 2760 0000 6998 6750
code En orcemant
Lower Keys: 1100 Simonton Street (Room -171),
Key West, FL 33040 - (305) 292-4495
Middle Keys: 2798 Overseas Highway
Marathon, FL 33050 - (305) 289-2810
Upper ~eYB: 88820 Overseas Highway
Tavernier, FL 33079 - (305) 852-7135
~0'd
Wd 6v: ~l ~ae~-~l-~~W
BEFORE THE CODE ENFORCEMENT SPECIAL MAGISTRATE
LARRY J. SARTIN
MONROE COUNTY, FLORIDA
MONROE COUNTY, FLORIDA,
Petitioner.
CASE NO. CE07020284
vs.
PENNIE D. MAY
Respondent(s) .
/
FINDINGS OF FACT, CONCLUSIONS OF LAW. AND ORDER
TillS CAUSE having come on for public hearing before the Code Enforcement Special Magistrate
on March 291h 2007, at the Monroe County Govenunent Regional Center, located at 2798 Overseas
Highway, Marathon, Florida, the Special Magistrate, having reviewed the evidence, heard testimony
under oath and being otherwise fully apprised in the premises, makes the following findings of fact and
conclusions of law:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. That the Respondent(s) is/are the tenant of record of property located at:
BK 12, LT 14, KEY LARGO TRAILER VILLAGE, FIRST ADDITION, KEY
LARGO,MONROE COUNTY, FLORIDA (RE#00460610-000000);
2. That the Respondent(s) was/were duly noticed of this hearing; and
3. That the above-named property is in violation of the Monroe County Code as more
particularly described in Exhibit "A", which is attached hereto and incorporated herein.
Therefore it is
ORDERED AND ADJUDGED that:
A. Respondent(s) is/are in violation of the Monroe County Code(s) and is/are ordered to
comply with the provisions of said codes by April 191h 2007. A compliance / review
hearing will be held on April 26111 2007.
B. Upon complying, Respondent(s) shall notify the Code Inspector in this case who shall
re-inspect the property and notify the Code Enforcement Department of compliance.
C. Noncompliance by the above date will result in the imposition of a fme, $100.00
( ONE HUNDRED DOLLARS), per count, per day, for each day thereafter that
Respondent(s) is/are in violation.
D. Pursuant to Florida Statutes Section 162.07, a fine in the amount of $100,00 (ONE
HUNDRED DOLLARS) has been levied for the administrative recovery for prosecution and
investigation.
E. In the event of nonpayment of fines/liens imposed, a certified copy of an order imposing a fine
may be recorded in the public records and shall thereafter constitute a lien against the land on
which the violation or violations exist and upon any other real or personal property owned by
the violator(s).
F. You have the right to appeal this order to the Circuit Court of Monroe County. If you wish to
appeal, you must do so no later than thirty (30) days from the date of this Order. Failure to
timely file a written Notice of Appeal will waive your right to appeal.
DONE AND ORDERED at the Division of Administrative Hearings, Tallahassee, Florida, this
64 day of April, 2007. ~~
Larry J .~i
Code Enforcement Special Magistrate
STATE OF FLORIDA
COUNTY OF LEON
I HEREBY CERTIFY that on this day before me, an officer duly qualified to take
acknowledgments, personally appeared Larry J, Sartin, personally lmown to me, who executed the
foregoing and acknowledged before me that he executed the same. /
WITNESS my hand and official seal in the County and State last aforesaid this 6-7;( day of
April, 2007.
~a W~~
N atary Public
,~*,~,f.t{{.'# Elma Williams
ff~r@. "'~ Commission # DD481642
~..~~ Expires December 2, 2009
~flJai~'\" Boo~dtroyF::UI" tnsur;U\tlJ Ihe liQO..J~S.7tJ.19
2
EXHIBIT "A"
VIOLATION(S):
COUNT 1. Pursuant to Monroe County Code ~ Section 6-4(a)(c) Unsafe buildings.(a)
Abatement Required: All unsafe buildings shall be abated using the Standard Unsafe Building
Abatement Code, 1997 edition, promulgated by the Southern Building Code Congress
International, Inc., subject to all amendments. modifications or deletions hereinafter contained.
(c)Amendment: As adopted by Monroe County, section 302.1.1(4), Standard Unsafe Building
Abatement Code, shall read as follows: "A statement advising that any person having legal
interest in the property may be prosecuted before the code enforcement special master, in county
court, 01' in any other manner provided by law for failure to repair, vacate or demolish the
offending building in the manner set forth in the notice."
COUNT 2. Pursuant to Monroe County Code ~ 12.1-1 No person may engage in or
manage any business, profession, or occupation within the county subject to an occupational tax
under this chapter without first paying that tax to the COlUlty tax collector.
CORRECTION(S):
-
COUNT 1. Contact the Monroe County Building Department and either obtain a building pennit to
bring the structure into compliance with current building codes, or obtain a demolition permit and remove
all offending structures on the property.
COUNT 2. Contact the Monroe County Tax Collector's office and obtain an occupational license for
running a business. Provide proof of occupational license to this office upon receipt.
CONTACT YOUR CODE INSPECTOR UPON COMPLIANCE
Upper Keys (305)852-7135
Middle Keys (305)289-2810
Lower Keys (305)292-4495
I HEREBY CERTIFY that a true and correct copy of the above has been furnished to thJO~
Respondent(s) via first-class mail at 3590 Willow Grove Rd., Centerville, IN 47330 , this day of
April, 2007.
Please make check or money order payable to Monroe County Code Enforcement and mail to 2798 Overseas
Highway, Marathon, FL 33050.
3
BEFORE THE CODE ENFORCEMENT SPECIAL MAGISTRATE
MONROE COUNTY, FLORIDA
MONROE COUNTY, FLORIDA
Petitioner.
CASE NO. CE07020284
vs.
PENNIE D. MAY
Respondent(s) .
I
ORDER STAYING FINES
THIS CAUSE having come before the Code Enforcement Special Magistrate on May
31 sl 2007 for a motion to stay the fines, and the Special Magisn;ate, having reviewed the evidence
and being otherwise fully apprised of the premises, it is hereby:
ORDERED AND ADJUDGED that Penalties imposed under the Order Imposing Penalty
of the Code Enforcement previously entered by the Special Magistrate on, March 291h 2007 are
hereby stayed for the period beginning May 31 5t 2007 until ~~2~~~tb~her
Ordered that al1.fines that accrued prior to May 31 sl 2007, shall remain in futf force and
effect; and it is further
Ordered that this matter shall be revisited on June 27th 2007 at 10:00 a.m. at the
Marathon Government Center, 2798 Overseas Highway, Marathon, FL 33050.
DONE ~D ORDERED at the Monroe County Code Enforcement Office, Marathon,
Florida, this b~Vday of November, 2007, nunc pro tunc to May 31st 2007.
I HEREBY CERTIFY that a true and correct copy of the above has been furnished to
Andrew Tobin, Esq. via fax at (305)852-6957.
BEFORE THE CODE ENFORCEMENT SPECIAL MAGISTRATE
LARRY J. SARTIN
MONROE COUNTY, FLORIDA
MONROE COUNTY, FLORIDA
Petitioner.
CASE NO. CE07020284
vs.
PENNIE D. MAY
Respondent(s) .
I
ORDER RE-INSTATING FINES.
THIS CAUSE having come before the Code Enforcement Special Magistrate on
July 27th 2007 for review, and the Special Magistrate, having reviewed the evidence and
being otherwise fully apprised of the premises, it is hereby:
ORDERED AND ADmDGED that Penalties imposed under the Order Imposing
Penalty of the Code Enforcement previously stayed by the Special Magistrate on May 31 SI
2007 for the period of May 31st 2007 to July 27th 2007, are hereby reinstated as of July
28th 2007, and will begin to accrue in the amount of $100.00 per count per day; and it is
further
Ordered that all fines that accrued prior to May 315t 2007, shall remain in full
force and effect; and it is further
Ordered that this matter shall be revisited on September 27th 2007 at the Monroe
County Code Enforcement Special Magistrate hearing to be held at the Marathon
Government Center located at 2798 Overseas Highway, Marathon, Florida at 10:00 a.m.
DONE AND ORDERED at the Division of Administrative Hearing, Tallahassee,
Florida, this ~ ~ay of November, 2007 nunc pro tunc to July 27tl1 2007.
BEFORE THE CODE ENFORCEMENT SPECIAL MAGIS
LARRY J. SARTIN
MONROE COUNTY, FLORIDA
MONROE COUNTY, FLORIDA,
Petitioner,
vs.
CASE NO. CE07020284
PENNY D. MAY,
Respondent.
/
ORDER MITIGATING FINES
This case came before the Special Magistrate on April 24, 2008, upon a request made by
counsel for Respondent that the fines which have been assessed in this matter be mitigated to
zero. The fines were imposed pursuant to Section 162.09, Florida Statutes (2007). At the
hearing, Petitioner Monroe County, took no position as to the appropriateness of mitigation, A
ruling on Ms. May's request was reserved to give the Special Magistrate an opportunity to
review the file of this case and a letter submitted by Ms. May.
It is first noted that, while Section 162.09(c), Florida Statutes (2007), specifically
authorizes a code enforcement board or special magistrate sitting in its place, to "reduce a fme
imposed pursuant to this section'" no direct guidance as to what factors should be considered
when deciding whether to reduce a fine is provided. The following criteria are provided,
however, for consideration in imposing a fine: (1) the gravity of the violation; (2) any actions
taken by the violator to correct the violation; and (3) any previous violations committed by the
violator. S 162.09(b)1.-3., Fla. Stat. (2007). Since these factors are to be considered in imposing
a fine, they will be considered in determining the extent of any mitigation of the accrued fines in
this case.
Gravity of the violation: The violations charged in this case were: (1) Section 12.1-1 of
the Code, failure obtain an occupational license for the rental of a mobile home on the property;
and (2) Section 6w4(a)(c) of the Code, Wlsafe structure as a result of broken windows, mold and
"
mildew, spongy floors, and an exposed electrical box in the mobile home. These violations were
not insignificant, especially in light of the fact that the mobile home had been rented prior to the
code citation despite its unsafe nature.
Actions of the Owner: The property was fonnd to be in violation on February 6, 2007,
and Ms. May was provided notice on or about March 6, 0207, of a code enforcement hearing at
which the violations would be considered. That code enforcement hearing was held on
March 27, 2007. Findings of Fact, Conclusions of Law, and Order, finding Ms. May in violation
as charged and imposing fines of$100.00 per day, per count, was entered until April 6, 2007,
after the March 29, 2007, code enforcement hearing. At a code enforcement hearing conducted
on May 31, 2007, two months after finding her in violation, Ms. May's representative
represented that she was trying to determine whether to repair the mobile home or, alternatively,
to replace it after obtaining a ROGO exemption which would allow future occupancy of the
property. It was also represented at the hearing that the property was no longer occupied and had
been boarded up. Based upon these representations, fmes were stayed until June 28, 2007, and,
subsequently, to July 27,2007.
2
As of the July 27) 2007, code enforcement hearing, Ms. May had still not applied for a
RaGa exemption or begun repair of the mobile home, Therefore, fines were reinstated
beginning July 28, 2007.
Toward the end of August 2007, Ms, May obtained a ROGO exemption Letter for the
property. Al~ that was then required was for her to obtain a demolition permit, have the mobile
home removed, and obtain a fmal inspection. It took until either the end of January 2008 or early
March 2008 (both dates were represented to be the correct dates at different hearings) to obtain
the demolition permit. "While this delay was apparently caused 9Y the contractor and not Ms.
May, it was an unwarranted and unexplained delay, not attributable to Monroe County.
Finally, once the demolition permit was obtained, it only took until March 31, 2008, to
remove the mobile home and obtain final inspections. Fines were stayed as of the March 27,
2008, code enforcement hearing.
Prior Violations: It appears that this is Ms. May's first violation.
Amount of the Accrued Fines: At the March 27,2008, code enforcement hearing, the
Special Magistrate Liaison indicated that the total accrued fines arnollilted to $28,400.00, and
that fines for the failure to have an occupational license for the property violation had previously
been stayed. Based upon a review of the file, the minutes of code enforcement hearings, and
video records of code enforcement hearings, it appears that the fines on the occupational license
count had not been abated. Therefore, the actual total accrued amount of fines appears to be
$56,800.00. Based upon the fact that the rental of the mobile home was ended very soon after
this case arose, to the extent that fines were not stayed on the occupational license violation,
those fmes are hereby eliminated as part of the requested mitigation of this case. All that
3
remains to consider is the extent to which the announced total fines of $28,400.00 should be
mitigated.
Summary: It has been suggested that this case is no different from another case involving
a damaged mobile home where no fines have been imposed. That argument is rejected. That
case, unlike this case, involved an owner who was incompetent. Due to the incompetence of the
owner and the fact that the mobile was not being rented at the time of the notice of code
violation, no flnes were imposed. In this case, the property owner is not incompetent and the
property, although in an unsafe condition, was being rented until Ms. May was ordered not to
allow any further occupancy of the property, Those facts, at a minimmn, distinguish this case
from the other case.
Looking at the nature of the violations and, especially the fact that, despite the hazardous
condition of the mobile home, it was being rented, and considering the delays in resolving this
matter which were not caused in any way by Monroe County but were ultimately the
responsibility of Ms. May, total mitigation of the accrued fines is not warranted. Looking at the
delays as objectively as possible, the fines should only be reduced by 50%. Taking into account,
however, Ms. May's age and location out of Monroe County, the fines will be reduced to below
20%, or to a total payable fine of$5,OOO.00. This amount is in addition to the $100.00 cost of
the proceedings previously assessed against Ms. May.
Accordingly, it is
ORDERED that the total fine accrued in this case by Ms. May is reduced to $5,000.00,
payable within 45 days of the date of this Order. Failure to timely pay the fine and $100.00 costs
shall result in the reinstatement of the total fines.
4
This Order may be appealed by any aggrieved party to the Circuit Court of Monroe
County no later than 30 days from the date of the Order. Failure to timely file a written Notice
of Appeal will waiver the right to appeal.
DONE AND ORDERED this ~ day of May, 2008, at the Division of
Administrative Hearings, Tallahassee, Florida.
STATE OF FLORIDA
COUNTY OF LEON
I HEREBY CERTIFY that on this day before me, an officer duly qualified to take
aclmowledgments, personally appeared Larry J. Sartin, personally known to me, who executed
the foregoing and acknowledged before me that he executed the same.
WITNESS my hand and official seal in the County and State last aforesaid this 7;1{
day of May, 2008. . -
,'...." ~ f;J~
::-,~r;.~.f,t/jJ"' Elma Williams .
-fJ."Ji'x~
=if ~ i.:: Commission # 00481642
~ftt"...~~~ Expires December 2, 2O.MJtary Public
Frp \.. 8!1ndadTm}' F,aID rl1$-l.IIJn~g l1'i.t 000..385.7019
I HEREBY CERTIFY that a true and correct copy of the above has been furnished YJ M~
Robert Citron, Esquire, by mail at 317 Whitehead Stre t, Key West orida 33040, this..f-F. -
day of May, 2008.
Please make check or money order payable to Mcnroe County Code Enforcement and mail to 2798 Overseas
Highway, Marathon, FL 33050.
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Jun. 13. 2008 11: 22AM
No. 0334 P. 1
IN THE CIRCtJIT COURT FOR THE 16TH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY, }I"LORlDA
PENNY D. MAY,
Appellant,
CASE NO.
(L.T. CE07020284)
VS.
MONROE COUNTY, FLORIDA
Appellee.
NOTICE OF .A.PPEAL
Appellant PENNY D. MAY appeals the Order Mitigating Fines dated May 14,
2008, a copy of which is attached hereto.
~
Andrew M. Tobin, Esq.
Florida Bar No. 184825'
Counsel for Appellant
P.O. Box 620
Tavernier, Florida 33070
(305) 852-3388
CERTIFICATE OF SERVICE
I CERTIFY THAT a true copy of the foregoing was fumi6hed to CYNTIIIA
HALL, ESQ., Assistant County Attorney, P.O. Box 1026, Key West, FL 33041, by U.S.
"J\.l "L-
Mail tbis ~ day ofoMa,; 2008.
~