Loading...
HomeMy WebLinkAboutDocumentation_Regular_Tab 6B_9/14/1995 poLiCe TEQUESTA POLICE DEPARTMENT `i 357 Tequesta Drive TEOUEsl& Post Office Box 3273 '% Tequesta, Florida 33469-0273 Phone: (407) 575-6210 VILLAGE OF TEQUESTA CODE ENFORCEMENT BOARD MEETING MINUTES JUNE 20, 1995 I. The Code Enforcement Board' of the Village of Tequesta held a. regularly scheduled meeting at the Village Hall, 357 Tequesta Drive, Tequesta, Florida, on Tuesday, June 20, 1995. The meeting was called to order at 7: 30 P.M. by Chairman William Treacy. Boardmembers present were: Chairman William Treacy, Vice Chairman Jeffrey Vorpagel, James Humpage, Dr. Ernest Kuonen, Paul Brienza, and Maureen Papp. Also in attendance were.: Assistant Police Chief Stephen J. Allison, Clerk of the Board, Village Attorney • John C. Randolph, and Code Compliance Officer Richard F. Davis. II. APPROVAL OF AGENDA - The agenda was not approved. III. APPROVAL OF PREVIOUS MEETING MINUTES Motion was made by Boardmember Papp, seconded by Boardmember Humpage and unanimously carried to approve the minutes of.1 the May 2, 1995 meeting as submitted. IV. SWEARING IN OF CODE COMPLIANCE OFFICER Code Compliance Officer Richard Davis and all others present at the meeting who planned to give testimony were sworn in by Clerk of the Board Allison. Code Enforcement Board Meeting Minutes June 20, 1995 Page 2 V. PUBLIC HEARINGS Case No. 95-01 Sylvia H. Ralston and Judy R. Weir, 146 Chapel Lane, Tequesta, Florida. VIOLATION Village of Tequesta, Code of Ordinances, ORDINANCE NO. 199, Section 12-1 (a) (b)(5) , Noise Prohibited. At this hearing the Code Enforcement Board shall hear testimony as to whether there has been compliance with the Order of the Code Enforcement Board dated May 04, 1995, and shall give consideration or reconsideration to the imposition of a fine in the event of a finding of non- compliance. Village Attorney Randolph reviewed the previous events of this case and the procedure to be followed at this hearing; and explained that the respondent and her attorney had complained that they did not receive notice of the May 2,, 1995 meeting where a fine had been imposed; therefore, a. new notice was sent out in regard to tonight's meeting. Attorney Randolph advised that the first item to be considered by the Board was whether or not they wished to reconsider the matter based on statements by the respondent, and if they did reconsider the case their next step would be to determine whether there was compliance by the date set. In the event that the Board determined non-compliance they would then consider whether to impose a fine. Attorney Randolph informed the Board that a notice of appeal had been filed with the Circuit Court in regard to their last action regarding imposition of a fine, at least in part due to the lack of proper notice and therefore lack of opportunity to respond. Attorney Taylor questioned Judith Weir, who stated her name and address of 146 Chapel Lane for the record; and testified that she was aware that the Code Enforcement Board had found her in violation of a code at a previous hearing; that she had met with Code Enforcement Officer Davis subsequent to that hearing and prior to April 20; that he did not advise her of any upcoming hearing; that her son Willjiam Weir and Attorney Taylor had been present; that she had gone to Arizona on April 20 for ten days; that she had been advised Code Enforcement Board Meeting Minutes June 20, 1995 Page 3 of the March 21 hearing; that she had not been advised of the May 2 hearing where a $100-per-day fine was imposed to begin May 10, 1995; that she had first learned of, the order imposing the fine from Attorney Taylor on May 4, 1995; and that she had no other reason for not appearing at the May 2 hearing other than not being notified. Attorney Taylor provided additional comments regarding the respondent's position that because of lack of notice the Board's imposition of the $100-per-day fine at the May 2 hearing was improper. After a short discussion, motion was made by Vice Chairman Vorpagel to reconsider this case since all parties were ready. Motion was seconded by Boardmember Brienza, and unanimously carried. Attorney Randolph advised the Board that since they had elected to reconsider this matter that their action at the last hearing was null and void, and they would hear evidence from the Code Enforcement Officer as to whether the respondent was in compliance by the date set by the Board for compliance, which was May 2, 1995, and subsequent to that date. Boardmember Kuenon questioned Officer Davis whether he felt he had advised the respondent on April 17 that there would be a hearing on May 2. Officer Davis responded, "Yes. " Officer Davis stated for the record that at the last meeting he had been hesitant about the imposition of a fine since proper notice had not been given, and explained that he felt the Board should allow sufficient time for him to prepare proper notice of a fine, since by the time the notice had been prepared Ms. Weir was already $300 in debt. Boardmember Kuenon advised Officer Davis that the issue was whether Ms. Weir was in compliance as of the date set, not whether she was fined prematurely because Officer Davis did not have time to notify her of the fine. Attorney Randolph advised that the question was whether the respondent had come into compliance by the date set or at any time subsequent. Officer Davis then testified he had met with Mrs. Weir, her son, and her attorney at Mrs. Weir's home on April 17 and that she was not in compliance, and that he had given her a ten-day extension to come into Code Enforcement Board Meeting Minutes June 20, 1995 Page 4 compliance since she had stated that she had an emergency and must leave town for ten days, and he had verbally indicated to her that a meeting would be held May 2, 1995 to discuss her case and to determine what would be done. Attorney Randolph recommended to the Board that they accept, the additional ten-day period allowed for compliance by Officer Davis, which would allow the Board to consider whether compliance had been achieved on May 2, 1995, or subsequently. Motion was made by Vice Chairman Vorpagel to accept the additional ten-day period granted by Officer Davis, bringing the date for compliance to May 2, 1995. The motion was seconded by Board ember Kuenon and unanimously carried. Officer Davis testified in response to questions by the Boardmembers that he had visited the next-door neighbor's property at the expiration of the additional ten-day period and still heard birds, that he believed the number of birds had been reduced, and that subsequent to the date for compliance that several complaints had been received from neighbors which had been responded to by police officers. Officer Davis stated in response to a request for clarification from Attorney Randolph that he could not personally testify that the respondent was not in compliance on May 2 but that police officers were present who could testify to that fact. Attorney Randolph stated that tonight was the opportunity to present any evidence to determine whether or not the respondent was in :compliance from May 2 to today. Officer Davis testified that on May 17 he discussed this matter with the attorney and that on June 7 he served notice of this hearing and heard the birds then. During questioning by Attorney Taylor, Code Enforcement Officer Davis testified that on June 14 he was at the home of the next door neighbors, Michael Laughran and Debbie Bernhoft, 150 Chapel Lane, inside the residence, and that he heard the noise of birds which appeared to come from Ms. Weir's back yard. Officer Davis responded to other questions by Attorney Taylor, including providing a description of the noise. Officer Robert Wooster testified that he had responded on June 12, 1995 at 6:07 P.M. to a complaint of bird noise at Ms. Weir's house by Michael Laughran, 150 Chapel Lane. Code Enforcement Board Meeting Minutes June 20, 1995 Page 5 Officer Wooster testified that when he arrived at Ms. Weir's house he could hear the birds from the road, that he spoke to her regarding the problem, and when he left he could hear the birds from the complainant's house. Officer Wooster's responses to questions by Attorney Taylor included that he saw a large number of birds and heard consistent bird chirping and intermittent squawking bird noises for approximately 25 minutes, and that he believed at the time that Mr. Laughran had recorded their conversation, however, Mr. Laughran had subsequently advised Officer Wooster that he had recorded only the birds. Officer Wooster responded to questions from the Board. Officer Davis placed into evidence Code reports dated June 12 , 1995, service of notice of hearing on June 7, Code report of May 31, 1995, and minutes of the March 21, 1995. Attorney Taylor objected to placing into evidence documents that she said she had not seen. Attorney Randolph advised the Board that documentation of the first meeting and documentation after May 2 would be pertinent to tonight's hearing. Attorney Taylor did not object to placing incident reports into evidence, but objected to including the case history. Attorney Randolph advised the Chairman that he could rule on acceptance of the case history but believed the objection by Attorney Taylor to be well taken, and further advised that since Officer Davis stated he could testify to contents of the case history verbally, that the Board should hear personal testimony in regard to those facts, and that if they needed to refer to the case history that it be placed into evidence so that there could be no question of whether the testimony was hearsay testimony. After discussion of whether a notarized statement of a followup of the March 21 meeting would end this matter, Attorney Randolph explained it would not be relevant if it was a statement which resulted from the May 2 meeting because the Board had decided to reconsider the May 2 hearing. Officer Philip Crawley of the Tequesta Police Department testified that on Wednesday May 3 at approximately 7:53 A.M. he arrived at 150 Chapel Lane in response to a complaint by Michael Laughran of noise from 146 Chapel Lane, where he heard bird noise coming from Mrs. Weir's house from inside Mr. Laughran's house. Officer Crawley testified he had been there before in response to the same type of complaints. Code Enforcement Board Meeting Minutes June 20, 1995 Page 6 Attorney Taylor asked Officer Crawley several questions. Officer. Crawley described the noise as being too loud, and commented that he would not want to live next door to such a situation. Chairman Treacy questioned whether all documents had been placed into evidence. Officer Davis presented documents to Attorney Taylor for her review. Attorney Taylor objected to inclusion of a copy of a license to sell and exhibit wildlife of eleven or more animals. Officer Davis explained the purpose of this evidence in terms of the violation was that it indicated that Mrs. Weir had a license to sell and exhibit wildlife of eleven or animals at her home at 146 Chapel Lane and he believed it was relevant because it was why the birds were on the property. Attorney Randolph advised that the Board must make a determination of whether to accept this document into evidence. The Board's determination was that the license was not relevant to their proceedings at this hearing and would not be introduced into evidence at tonight's meeting. Barbara Gomez, 142 Chapel Lane, next door to Ms. Weir's residence, testified as to the layout of the neighborhood including her residence, Mrs. Weir's residence, Mr. Laughran's residence, and the Orr family's residence. Mrs. Gomez referred to minutes of the March 21 meeting as to what Mrs. Weir had stated she would do to comply with the Board's order to come into compliance. Mrs. Gomez distributed photographs to the Board which she had taken the previous morning of the cages containing birds in Mrs. Weir's back yard. Officer Davis entered the photographs into evidence, which were accepted by the Board without objection. Attorney Randolph verified that the Board had accepted into evidence the minutes of the March 21, 1995 meeting without objection. It was agreed to mark the June 19, 1995 photographs as a composite and to specify by number. Mrs. Gomez described the birds and cages, the stench from Mrs. Weir's property, and expressed concern that her property and that of the whole neighborhood would be devalued as a result of this situation. Attorney Taylor objected as irrelevant. Mrs. Gomez expressed her opinion that the property devaluation was relevant, and stated she Code Enforcement Board Meeting Minutes June 20, 1995 Page 7 would not be cross examined by Attorney Taylor without having her attorney present. After discussion, Chairman Treacy stated that the line of testimony concerning Mrs. Gomez's home would be stricken. Attorney Randolph stated that the testimony did not need to be stricken, but the objection sustained. Mrs. Gomez apologized to the Board for getting emotional, and stated that the noise still existed after 2-1/2 years, and that some cages had been moved that afternoon but she was not confident they would not reappear. Attorney Randolph advised there were thirteen photographs taken 6/19/95 which had been introduced into evidence without objection. After discussion of whether the neighbors could be cross examined by the respondent's attorney, Attorney Randolph advised how that was covered in the code. Vice Chairman Vorpagel asked Mrs. Gomez to describe the noise--she responded that it had been consistent each day since May 2, and described a typical day. Mrs. Gomez described how the noise interfered with their normal life, with sleep and conversation. Attorney Taylor stated she was prohibited from questioning Mrs. Gomez. Attorney Randolph advised that the Board was not prohibiting the cross examination, and advised the Board that they might not be able to consider any of Mrs. Gomez's testimony if she did not submit to the cross examination. Mrs. Gomez agreed to the cross examination. Attorney Taylor questioned Mrs. Gomez regarding types of wild birds she was familiar with, whether she was doing other crazy things besides taking pictures through a hole in the fence--which the Board objected to, and Attorney Taylor agreed to strike the question. Attorney Taylor questioned whether Mrs. Gomez knew if Mrs. Weir had gotten rid of any of the birds--Mrs. Gomez's response was that she did not. Boardmember Humpage quoted from Chapter 12 Noise Ordinance, "Animals, birds, etc. The keeping of an animal or bird which by causing frequent or long continued noise shall disturb the comfort or repose of any person in this vicinity. " Boardmember Humpage asked Mrs. Gomez whether her comfort or repose had been disturbed by the wild birds. Mrs. Gomez responded that they had not; Boardmember Humpage questioned whether her comfort or repose had been disturbed by Mrs. Weir's birds--Mrs. Gomez replied, "Yes. " Mr. Michael Laughran, 150 Chapel Lane, stated this whole case was about the violation of the code as just described. Code Enforcement Board Meeting Minutes June 20, 1995 Page 8 Mr. Laughran played a tape of bird noise recorded since May 2, 1995 which Attorney Taylor objected to as unreliable evidence. Mr. Laughran agreed, that it would be very difficult to play the tape at a level consistent with how he heard the noise from his home, but stated that he could testify that the noise on the tape disturbed his comfort and repose just like the noise heard from his house and yard disturbed his comfort and repose. The ruling of the Board was that the tape would be heard over objection. Mr. Laughran• played a tape recorded on 6/16 of barking dogs on Mrs. Weir's property which he stated had continued for 45 minutes, and which happened about once a week. Mr. Laughran responded to questions from the Board, and stated that visitors would no longer come to his yard because of the birds' noise. During. Attorney Taylor's cross examination of Mr. Laughran, it was established that the majority of the bird noise came from Mrs. Weir's birds, and that on the day Officer Wooster answered his complaint that Mr. Laughran had recorded bird noise. Discussion followed of whether the Board could consider that tape. Mr. Laughran described the other noises on that tape, which did not include intelligible conversation. In - response to questions regarding the barking dogs, Mr. Laughran stated he assumed no one was in the house since the dogs just kept barking, and the reason they were barking was that there was a rodent running around in the screen room, and stated that he saw - the dogs. Boardmember Papp questioned Mrs. Weir as to how many birds she had had on her property since May 2, to which Mrs. Weir answered, "20". Mrs. Weir responded to further questions that she now had 12 or 13, that the others were gone, that she did not intend to get any more birds, that it was difficult to get rid of birds, described the numbers and kinds of birds she had gotten rid of, and stated that she had five dogs which were all pets. Boardmember Humpage pointed out that on March 21, Mrs. Weir also had 20 Winds, so had not gotten rid of any by May 2. Mrs. Weir statedcit was hard to get rid of birds. Boardmember Papp questioned whether she had called Dreher Park Zoo to ask them if they would take the birds. Mrs. Weir explained she had posted notices at veterinarian offices and pet stores and named several of them. Mrs. Weir replied to Boardmember Kuenon that she was sensitive to her neighbors feelings and was trying to resolve the situation. Boardmember Kuenon Y , Code Enforcement Board Meeting Minutes June 20, 1995 Page 9 commented he found it difficult to understand why it would take from December 31, 1993 to June 20, 1995 to resolve the situation, and asked what she would do to relieve the problem immediately. Mrs. Weir stated she felt there was no problem now. Mrs. Weir stated she supposed she would have to get rid of more birds if the. Board determined there was still a problem. Mrs. Weir described the birds she still had as 3 green singer finches, one canary, a pair of African gray congos, and 3 pairs of cockateels. Mrs. Weir responded to Boardmember Papp that from May 2 to today she had 8 cages and today had gotten rid of 2 cages. Mrs. Weir stated that there had not been a rat on the back porch, but that it was a squirrel. Mrs. Weir responded to Attorney Taylor that she had attempted to comply with this Board's directive to abate the noise and had attempted to abate the noise as she could do so. After Vice Chairman Vorpagel questioned what Mrs. Weir would suggest the Board do in this situation, Mrs. Weir responded to Attorney Taylor's question of what she would suggest that she would do her best to comply. Chairman Treacy asked Mrs. Weir if he sent someone to her home tomorrow that would take all the birds whether she would give that person the birds. Mrs. Weir responded she would not give all of them. Attorney Taylor asked which birds were quiet. Mrs. Weir responded, the parakeets. Attorney Taylor asked if Mrs. Weir was willing to dispose of the birds that made noise. Mrs. Weir's response was--"I suppose, if I have to." Discussion of the value of the birds was determined by the Board to be irrelevant. Attorney Taylor objected and stated for the record her question regarding the value of the birds was only to follow up on the Board's line of questioning about how difficult it was to get rid of birds. Attorney Taylor played a tape recorded in Mrs. Weir's back yard earlier that evening at approximately 6:45 to 7:15 P.M. to demonstrate that the bird noise did not interfere with conversation or television. Discussion ensued regarding the reliability of tapes, and whether they would be accepted into evidence. Robert Orr stated he lived at 238 Wingo Street, right behind Mrs. Weir's house, had not heard the birds during his daily activities since approximately the time of the March 21 hearing, described the noise as not impeding, his enjoyment of his home and back yard, commented that the noise had abated considerably, and that the windows of his home had been open since the air conditioner was broken for six Code Enforcement Board Meeting Minutes June 20, 1995 Page 10 months. Vicki Orr, 238 Wingo Street, testified that the bird noise had abated within the past couple of months, that she considered the bird sounds beautiful when she heard them, and could offer no explanation as to why she could not hear the birds when the other neighbors could hear them. Code Enforcement Officer Davis recommended a certain number of days for Mrs. Weir to comply because of the circumstances which had caused this second hearing, and requested the Board to make it completely clear to him exactly what they meant by compliance, how many days and under what circumstances Mrs. Weir was to come into compliance, and to allow him to go onto Mrs. Weir's property or a next door property . to determine compliance with one of the complainants present. Attorney Taylor's summary comments included statements that. this situation had apparently accelerated over a period of. time, that there was ample evidence of desire to comply, that the code indicated a reasonable person's comfort and repose should not be disturbed, that there was ample testimony that the noise had abated, that the complainants were not willing to give, requested Mrs. Weir be allowed to remove the remaining offending birds in a reasonable manner, explained that Mrs. Weir had suffered financial difficulty in order to deal with this situation, and suggested the complainants meet with. Mrs. Weir at her home to discuss the situation. Attorney Taylor requested that the Board consider all of the testimony. Chairman Treacy declared the presentation of evidence closed. Motion was made by Vice Chairman Vorpagel to find Mrs. Weir in non-compliance with the Board's March 21, 1995 order from May 2, 1995 forward. Motion was seconded by Boardmember Papp, and unanimously carried. After discussion by the Board and direction from Attorney Randolph regarding how to handle this situation, how to determine compliance, and the imposition of a fine, Boardmember Humpage suggested the concept of a nominal fine from May 2 to the date of this meeting and a larger fine to Y Code Enforcement Board Meeting Minutes June 20, 1995 Page 11 begin the day after this meeting. Code Compliance Officer Davis requested that the Board's order begin as of the date he was able to make delivery of that order to Mrs. Weir. Consensus of the Board was not to give additional time for notice, especially since the respondent and her attorney were both present at the meeting. During further discussion of the amount of the fine, Attorney Randolph advised by reading from the code that in determining the amount of the fine that the Board should consider the gravity of the violation, any actions taken by the violator to correct the violations, any previous violations committed by the violator, and stated that any fine should continue to accrue until the violator comes into compliance. Motion was made by Vice Chairman Vorpagel to impose a fine of $100 a day from the day after the date of this meeting until the violator came into compliance and if the fine should run so far, to reserve the option by the Board to call it back and go for collection. The motion died for lack of a second. Further discussion ensued, during which Code Enforcement Officer Davis requested that the Board consider reducing or eliminating the fine if compliance were met in a reasonable length of time. Boardmember Ruonen made a motion to impose a fine in case No. 95-01 of $20 per day from May 5, 1995 to June 20, 1995, and of $100 per day 'from midnight of June 20 forward until compliance was achieved. If compliance were met within a week the $20 per day fine would be reduced to $10 per day. Motion was seconded by Boardmember Humpage, and unanimously carried. Chairman Treacy stated to Mrs. Weir that she was aware of the motion and the Board hoped she would come into compliance very fast. It was determined by the Board that the tapes heard at this meeting would be kept in custody by Officer Davis until, this case was resolved, at which time they would be returned. Attorney Taylor requested that the record reflect that Mr. Laughran had represented that his tapes had sounds on them from various dates and went back as far as a year and a half and were not necessarily indicative of what had occurred within the past month. Attorney Randolph agreed, and stated that the Board was restricted to hearing that portion of Code Enforcement Board Meeting Minutes June 20, 1995 Page 12 those tapes that was actually played in evidence. Boardmember Humpage left the meeting at 10:56 P.M. Boardmember Papp questioned whether it was appropriate for any member of the Board to check out the noise at 146 Chapel Lane. Attorney Randolph advised it was not appropriate. VI. PRESENTATION OF NEW CASES TO SET FOR HEARING: CASE NO. 95-02 James P. and Katherine N. Mercak, 79 Yacht Club Place, Tequesta, Florida VIOLATION Village of Tequesta, Code of Ordinances, ORDINANCE NO. 464, SEC 3, Restricted Parking At this hearing the Code Enforcement Board shall hear Testimony as to whether there has been compliance with the Order of the Code Enforcement Board dated May 02, 1995, and shall give , consideration or reconsideration to the imposition of a fine in. the event of a finding of non- compliance. Motion was made by Boardmember Papp to set Case No. 95-02, James P. and Katherine M. Mercak, for the next hearing scheduled before the Code Enforcement Board. Motion was seconded by Boardmember Brienza, and unanimously carried. VII. UNFINISHED BUSINESS None VIII. OTHER MATTERS Boardmember Papp requested that a workshop meeting be held to allow the Board to become familiar with the proper procedures of the Board and that a request be made to the Village Council for secretarial help for the Code Enforcement Board which was needed to do the job well. Boardmember Papp was advised that secretarial help had already been requested, however, funds were not available. A suggestion was made that funds for a prosecuting attorney also be requested. Attorney Randolph advised that the Code Code Enforcement Board Meeting Minutes June 20, 1995 Page 13 Enforcement Officer normally acts as a prosecutor, however, a Code Enforcement Board could have an attorney representing the Board and an attorney prosecuting. Boardmember Papp • suggested that the Board should be able to have a prosecuting attorney if they deemed a case important' enough to hire the attorney. Officer Davis also requested a workshop since he was not sure of proper procedure and wanted to be able to do his job correctly. XI. ADJOURNMENT Boardmember Papp moved that the meeting be adjourned. Boardmember Kuonen seconded the motion, which unanimously carried, therefore the meeting was adjourned at 11:05 P.M. Respectfully submitted, Betty Laur Recording Secretary ATTEST: SteP��Y. Allison Clerk of the Board DATE APPROVED:.