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HomeMy WebLinkAbout04-18-2013 Workshop MINUTES FOR THE VIOLATIONS HEARING BOARD WORKSHOP HELD APRIL 18, 2013 CALL TO ORDER City Attorney Cookson called the meeting to order at 6:06 p.m. MEMBERS PRESENT: Members Amey, Ball and Zielinski. ABSENT EXCUSED: Members Laney, Lopez- Anderson and Garland. ALSO PRESENT: City Attorney Cookson, Assistant City Attorney Drage, Lt. Dreasher, Staff - Liaison Sgt. Wagner and Recording Secretary Garza. INTRODUCTION TO THE NEW VIOLATIONS HEARING BOARD ORDINANCE AND RELATED PROCEDURES City Attorney Cookson began by explaining the topics to be covered in the workshop, including the new Violations Hearing Board Ordinance, ex parte communications, and the Sunshine Law. Assistant City Attorney Drage explained the City decided to include all the violations coming before this board to be referenced in the Code under a single Chapter titled Violations. She continued by saying this Ordinance is not yet in Municode but, nonetheless, it is in effect. A new Chapter 16 titled Violations was created; however, for the most part, the Ordinance remains the same except for a few provisions and a change in title. Assistant City Attorney Drage continued by presenting a Summary of Violations Ordinance, Chapter 16. Powers and Duties of the Violations Hearing Board: • To conduct hearings on contested notices of violations: Any person given a notice of violation for violating a particular Code provision has the opportunity to contest it before this board. • To determine whether a violation of the City Code occurred. • To impose fines and fees for violations of the City Code. The City Commission also adopted a Resolution of a Schedule of Fines and Fees. • To make recommendations to the Chief of Police related to hearings and City Code violations. Membership Requirements: • Seven (7) members, including a Chairperson and a Vice - Chairperson, elected by a majority vote of the Violations Hearing Board members at the first meeting of the calendar year. • Three (3) members of the Violations Hearing Board constitute a quorum and no action shall be taken if less than three members are present. • A member of the Violations Hearing Board may be removed for a number of reasons, including failure to attend three meetings within a 12 -month period. Also, if a member ceases to be qualified for membership under the provisions of Chapter 16, the member can be removed from the board. Options for a Person Who Receives a Notice of Violation: Page 1 of 5 • Pay the assessed fine or file a contesting affidavit. Procedures for a Hearing to Contest a Notice of Violation: • The City representative who issued the notice of violation shall testify at the hearing, explaining why the notice of violation was issued. • The violator may also testify and bring witnesses and evidence. • The Violations Hearing Board shall make a determination as to whether a violation occurred. • A written order stating the findings shall be issued by the Violations Hearing Board at the hearing, or within fifteen (15) days. • Formal rules of evidence don't apply; the board can accept hearsay testimony but it can't be the sole basis for the decision. Evidence that is taking a long time, or is irrelevant or repetitive may be excluded. • The hearing shall be conducted in a manner to ensure that the violator is afforded due process, and a full opportunity to present their case. Staff - Liaison Sgt. Wagner asked if there is a question and answer time for the board. Assistant City Attorney Drage replied the board can ask questions of either party if they want to. She believes this is helpful in understanding what happened and suggested it be done after all testimony is presented to avoid confusion, and it provides an opportunity for everyone to speak. This allows for the due process requirements to be met. Assistant City Attorney Drage continued her presentation by saying the City has determined a filing fee of ten dollars to request a hearing and, if the board determines a violation occurred, the filing fee will not be reimbursed; however, if the board determines no violation occurred, the filing fee will be reimbursed. If the board determines that the violation was committed, the violator shall be deemed to have waived his or her right to pay the original amount, and the board has the right to impose a fine of up to two - hundred and fifty dollars plus the hearing costs. Staff - Liaison Sgt. Wagner asked if the board has the right to reduce the fine. Assistant City Attorney Drage replied by saying yes. Member Amey stated she thought two - hundred and fifty dollars was excessive and would not like to impose fees that will not be able to be collected, as which has been the case with the Code Enforcement Board. Assistant City Attorney Drage replied by saying the fines imposed by the Code Enforcement Board are daily fines as opposed to the ones imposed by the Violations Hearing Board which are a one -time fine. As far as collection, the City Manager has the right to establish collection procedures and these can be enforced by a civil action and include collection costs. Member Amey asked if the board has any guidelines as far as costs. Staff - Liaison Sgt. Wagner replied there is a Fine Schedule which lists the violation fines, and Assistant City Attorney Drage added the board is not bound by it. City Attorney Cookson stated the fine would be whatever amount is decided by the board plus the administrative fee of fifty dollars. Staff - Liaison Sgt. Wagner interjected by saying the administrative fee is non - negotiable. He also asked what would happen in the event of failure to appear on the part of the officer or if there was no quorum established; would the hearing have to be rescheduled or the violation dismissed. Assistant City Attorney Drage said there is nothing in the Ordinance that dictates either way. Lt. Dreasher stated that in the past if there was no quorum, the violation was dismissed, but it does not have to be. Assistant City Attorney Drage added that it can also be rescheduled. Assistant City Attorney Drage continued Page 2 of 5 her presentation by listing the provisions of the City Code related to the types of cases heard by the Violations Hearing Board: • Article III of Chapter 48, Bowfishing. • Chapter 61, Cemeteries. • Article I of Chapter 113, Loud, Unnecessary or Disturbing Noise. • Article III of Chapter 153, Golf Carts on Public Streets. • Chapter 164, Registration, Maintenance and Security of Abandoned Real Property. • Article I of Chapter 168, General Provisions of Vehicles and Traffic. Member Amey asked about the security of abandoned property and if it has to do with trespassers. Assistant City Attorney Drage replied it relates to property subject to a foreclosure action where the owners have moved out and are not caring for or maintaining it. The Ordinance requires lenders to register the property and the City has a vendor who visits the abandoned properties and makes contact with the owner or lender and requests them to register; if they fail to do so within a stipulated time, then a fine is charged. Lt. Dreasher explained this board will hear cases where a fine has been set for failure to register, not for code violations. Staff - Liaison Sgt. Wagner asked who will monitor who registers and who doesn't. Lt. Dreasher replied the City has a vendor for this purpose. Assistant City Attorney Drage added it is an outside vendor. Lt. Dreasher pointed out that in a four -month period the City has collected twenty -four thousand dollars. Member Amey stated there were several cases presented before the Code Enforcement Board and they had not been able to get anywhere with those. Assistant City Attorney Drage stated this helps because it makes the lenders be more cognizant of their responsibilities and provides a point of contact. SUNSHINE LAW Assistant City Attorney Drage stated the Violations Hearing Board is subject to these provisions. These include all board meetings or commission meetings where there are official acts and are declared public meetings open to the public at all times. A meeting is defined as an occasion where two or more members of the same board are present; even if by telephone, email, text or even by written documents, including those transmitted by fax, discussing an official act. There are requirements for a public meeting: It has to take place at a certain location in a facility that does not discriminate and where accommodations can be made for any disabled individual. Also, a notice of the meeting of at least 24 hours in advance has to be provided. The notice must include the advice that if a person decides to appeal any decision, that person may need to ensure that a verbatim record of the proceedings is made to show exactly what was said at the meeting. Minutes are required to be taken and have to be open for public inspection; the meetings can be video recorded or audio recorded but the minutes are a requirement. In regards to voting, all members present at a meeting have to vote on official acts or decisions unless they comply with the conflict of interest provisions; a roll call vote is not necessary and secret ballots are prohibited. Assistant City Attorney Drage continued by saying there are sanctions for violating the Sunshine Laws. Criminal sanctions refer to a knowing violation with a penalty of up to five hundred dollars and up to 60 days in jail, or both. A civil violation is unintentional where the member unknowingly violates the Sunshine Laws and it can result in penalties not to exceed five hundred dollars. The validity of Page 3 of 5 any action taken in violation of the Sunshine Law is void. Members of the general public have standing to sue; however, this violation can be cured by a properly noticed meeting under the Sunshine and then take the official action. EX PARTE COMMUNICATIONS City Attorney Cookson addressed the board by saying that Florida was one of the early adopters of open government and has a very broad and open Public Records and Sunshine Laws that are conducive to fairness where all have an opportunity to express themselves. An ex parte communication is a communication from only one side of the matter or party to the trier of fact (the Judge, the City Commission, the Violations Hearing Board) without the other being present. Any communications the board members have with a party should only take place at the meeting. Ex parte communications can also be in the form of a letter, email, phone call or face to face. All considerations should be presented at the meeting and any determination made should come from the evidence presented at the board meeting. City Attorney Cookson continued by explaining it is the board member's responsibility to disclose the ex parte communication to cure it. The board member should disclose the ex parte communication at the meeting to other board members with as much information as possible about the communication so that all board members have the same information available; this also gives the other side, the City or the individual, the opportunity to respond. City Attorney Cookson also explained that some of the potential consequences to ex parte communications are a second degree misdemeanor which could result in jail up to 60 days, and the potential of removal from office. Staff - Liaison Sgt. Wagner stated there is a form to be filled out that includes any conflicts you may have, any businesses you have ties to. Member Amey replied she remembered filling one of those forms. Lt. Dreasher stated he had the members fill out that form in the past. Staff - Liaison Sgt. Wagner said those need to be filled out every year in June. Lt. Dreasher stated he would find out if these are needed. City Attorney Cookson continued by explaining voting conflicts arise when a public official is called upon to vote upon, and read from the Florida Statutes, section §112.3143 (2) the following: "...any measure which would inure to the public officer's special private gain or loss; which he or she knows would inure to the special private gain or Toss of any principal by whom the officer is retained or to the parent organization or subsidiary or a corporate principal by which the officer is retained; or which the officer knows would inure to the special private gain or loss of a relative or business associate of the public officer..." City Attorney Cookson continues by saying it all goes to fairness and since board members live in the City they know people, have friends, or family members that hopefully will not come before the board, but these issues will have to be considered if they come up. He continued by saying public officers are any persons elected or appointed to hold office in an agency, including persons serving on an advisory board, and are governed by the voting conflicts law. Special private gain or Toss depends on the size of the class to be affected by a matter, although he does not foresee any matter coming before this board that would affect every person in the City, he does foresee a family member, business associate, special enough to be considered Page 4 of 5 under the voting conflicts. Consideration is made as to whether the potential gain or loss is remote or speculative as well as to whether the matter is procedural or a preliminary issue. City Attorney Cookson continued by defining who is a principal by whom the officer is retained as follows: the employer of the officer, a client of the officer, and the corporation on which the officer serves as a paid director. He continued by saying the Statute recognizes as relatives of the officer the following: father, mother, son, daughter, husband, wife, brother, sister, mother - in -law, father -in -law, son -in -law, and daughter -in -law. There are voting conflict duties for elected officers and for appointed officers. If an appointed officer chooses not to participate, the officer must abstain from voting; publicly state the nature of his or her interest in the matter, and follow -up with the filling of the memorandum of voting conflict with the clerk of the body within 15 days. If an officer chooses to participate they must make the disclosure before they participate and must abstain from voting. The form can be filled before or after the meeting. DISCUSSION Lt. Dreasher addressed the board by saying the first order of business needs to be the election of a chairperson and a vice- chairperson for the board, or at least for this meeting. Member Zielinski thought it would be better to just elect one for this meeting. ADJOURNMENT Workshop adjourned at 6:53 p.m. Respectfully submitted, /11 , )„,/ Ak Madeleine Garza, Recording Secretary David Ball, Chairman Page 5 of 5