HOLMES BEACH – It was a win for Holmes Beach police officers when Special Magistrate Michael Connolly ruled in favor of upholding a noise violation citation, assessing a $175 fine.
Property owner James Daniel Clark appeared during a Feb. 10 hearing to contest a noise violation citation received by his son, Justin Clark, on Nov. 27, 2021.
HBPD Officer Michael Van Horne testified before Connolly about the incident, which happened at a home Clark owns at 240 S. Harbor Drive in Holmes Beach. Van Horne said he responded to a noise complaint at the address. When he got out of his vehicle about 200 feet away from the home on the street, he said loud music was plainly audible. Upon walking up to the gate to the backyard, Van Horne and Sgt. Thomas Fraser say they saw several young people in a hot tub. Justin Clark responded to their summons to the gate and, with his father on the phone, answered police questions and received the noise violation.
Body camera footage from the two officers confirmed their version of events, also bringing to light that Justin Clark admitted that underage drinking was taking place on the property.
Speaking on behalf of James Daniel Clark was attorney Michele Grantham. Grantham argued that the neighbor who reported the incident had called multiple times since 2019 to report issues at the property and that the November incident was the only time that a citation was issued. She also argued that the police responding to the call had previously used a decibel reader to determine if a noise violation had taken place and did not use it this time, instead using the plainly audible portion of the city’s noise ordinance, along with seven standards outlined in the ordinance to determine that a violation had taken place. Grantham said the plainly audible language and seven standards were too subjective.
Tokajer disagreed. He testified on behalf of his officers and said the noise ordinance allows officers to determine if a violation occurs based on reasonableness and their own common sense, even if that noise takes place during the day, as this one did. With the body cameras unable to amplify sound, what was heard on the camera footage was an accurate depiction of the noise at the time of the citation, he said.
“This is clearly a violation,” Tokajer said of the music, which caused the disturbance.
Though he wasn’t onsite at the time of the incident, James Daniel Clark testified during the hearing on behalf of his son, saying he believed the group of college sophomores were watching a football game and that was the source of the noise. While being questioned by Augello, he admitted that the noise heard in the body camera footage did not sound like a football game.
After hearing testimony on both sides, Connolly ruled that a violation had taken place and ordered Clark to pay a fine of $175 plus a $10 administrative fee.
ANNA MARIA – Local attorney and former Anna Maria City Commissioner Chuck Webb is now serving as the city’s special magistrate.
Attorney Karla Owens previously served in that role.
Webb presided over the Thursday, Oct. 29 code enforcement hearing held at Anna Maria City Hall.
After taking roll to determine who was in attendance, Webb announced he would not be conducting any hearings that day pertaining to alleged vacation rental violations due to his concerns about the city’s notification process. He said those hearings will be rescheduled.
Eleven of the pending vacation rental violation notices pertain to registration and inspection violations and one pertains to an alleged COVID-19-related advertising violation.
After further discussion on the notification process, Webb ruled in the city’s favor regarding three disputed parking citations.
Notification concerns
When explaining his concerns about the city’s notification process, Webb said, “Part of that due process requirement is that the respondents get clear notice of facts on which the violation is based. The charging documents don’t have any facts. I am ordering the city to amend those charging documents to clearly state the facts. It requires the city to say who, what, when and where the violations occurred so the facts support the charges.”
Webb expressed concerns about the current notices that use “cut and paste” references to city codes that were allegedly violated.
Webb asked Vose if she understood his concerns about the hearing notices.
Participating by phone, Vose said, “I guess I need more information as to what you would expect to see because it’s pretty darn detailed.”
Webb said his intent is to prevent a case from being dismissed because of due process issues.
Webb said a notice pertaining to a vacation rental registration violation should state the registration due date and note the violation has been ongoing since that date. He also said the notice should state whether the alleged violator had any prior violations.
“One or two sentences that fills it in,” Webb said.
“I respectfully disagree,” Vose said. “I think this is pretty standard for code violations. It’s kind of like getting a traffic ticket.”
In reference to a notice of alleged violation issued to ISO FL LLC and Sato Real Estate, Vose said the notice specifically references a COVID-19 emergency order that temporarily prohibited the acceptance of a vacation rental reservation for less than 30 days.
“They were in violation of COVID-19 order 2A. They were also in violation of order 4A and order 5, which says what those violations constituted,” Vose said.
Regarding the city’s notification process, Webb said, “Ms. Vose, I respectfully disagree. It’s just a short, plain statement of facts, just like you would do in civil proceedings in circuit court. Just beef it up a little bit. It’s going to be better for all involved.”
“We will do that in the future. Are you ruling that our initial notice was incorrect so that we can’t bring these again?” Vose asked.
“No, not at all,” Webb said.
Parking violations
Sarasota resident Daniel Pirvu was the first respondent that day to challenge a parking citation. Code Enforcement Manager Debbie Haynes said Pirvu was cited for parking at an angle along Elm Avenue. Haynes said the infraction occurred in an unpaved right of way where angled parking is not allowed, but parallel parking is.
Pirvu said he should not have received a parking ticket because none of his tires were touching the pavement. Haynes said the citation Pirvu received had nothing to do with tires touching the pavement.
Webb ruled in favor of the city and ordered Pirvu to pay the $50 fine, a $15 late fee and an additional $150 administrative fee.
The special magistrate has the authority to levy an additional $150 administrative fee on those who unsuccessfully challenge their violations. The fee helps the city cover the costs of the code enforcement hearings, including the special magistrate’s hourly rate.
Bradenton resident Scott McConoughey unsuccessfully challenged the parking ticket he received for parking in a prohibited area on Alamanda Road when going to the Rod & Reel Pier.
Scott McConoughey, right, discussed his parking ticket with Code Enforcement Manager Debbie Haynes and Special Magistrate Chuck Webb. – Joe Hendricks | Sun
McConoughey said he parked in a space where parking had long been allowed and he did not see the new no parking signs – one of which he said was obstructed by a portable toilet at the time.
Haynes acknowledged parking used to be allowed in that location, but it was eliminated as part of the city’s COVID-19 pandemic response. Haynes said there were two no parking signs posted in that location and McConoughey or his passenger should have seen at least one of them.
Webb ordered McConoughey to pay a $50 fine, a $15 late fee and the $150 administrative fee.
When contacted by The Sun later that day, McConoughey, “The $150 administrative cost is totally bogus. I didn’t pay it today because I can’t. I was hit hard by COVID. I lost my job.” McConoughey said he’s just beginning to find work again as a musician.
Palmetto resident and Spartan Air Services owner Levi Courtney was ticketed for parking his work truck on the Jacaranda Road pavement.
“I’m not here to argue the law. My problem is signage,” he told Webb.
Courtney referenced the sign at the entrance to the city that says, “Park with all tires off pavement where permitted,” but he said he didn’t see any no parking signs where he parked that day.
This sign at the entrance to Anna Maria notifies motorists of a parking law enforced throughout the city. – Joe Hendricks | Sun
Courtney said he received the ticket while servicing an existing HVAC system and selling a new system.
Courtney said he parked outside of a no parking zone indicated by a sign located elsewhere on the street. He said he parked with 12 inches of the curb in accordance with state law and was parked in his customer’s driveway and intermittently walking back and forth between his truck and the client’s home.
Code Enforcement Officer Robert Haynes said Courtney’s vehicle was parked on the pavement and he did not observe him going back and forth between his truck and the client’s home.
“Even if I don’t prevail, maybe do something for other contractors out here,” Courtney said.
Webb said he was aware of a code provision given to yard maintenance companies, but he wasn’t sure whether the provision applied to other contractors.
After Debbie Haynes read aloud that section of the city code, Webb said, “That doesn’t provide an exemption to parking in paved areas, so I find in violation of city code. The fine is $65 plus $150 administrative fee.”
After leaving city hall, Courtney said, “I’m here to fight a law that the people I’m talking to created in the first place. Trying to fight that is not a battle you can win.”
After Webb dispensed with the parking challenges, he, Vose and City Clerk LeAnne Addy resumed their discussion on the city’s notification process.
Addy noted that similar notices have been used for past code enforcement hearings with no concerns raised.
“The big thing is to put the respondent on notice as to this is what you did wrong. Not just this is the code provision you violated – these are the actual facts that caused the violation,” Webb said.
Regarding the parking with no tires on the pavement sign at the entrance to the city, Webb said, “To me that sign is a little ambiguous.”
Webb suggested clarifying that sign language if possible.
HOLMES BEACH – Special Magistrate Michael Connolly is offering one last chance for property owners to come into compliance with his previous rulings on code violations before he levies fines in October.
Code compliance officers presented several cases before Connolly during a Wednesday, Sept. 16 hearing held at Holmes Beach City Hall. Seven of the cases presented were continued to a future hearing for reasons including pending potential changes to the city’s sign ordinance.
While those cases are set to be heard at a future special magistrate hearing, the cases that most concerned Connolly are the five in which he’s already ruled on alleged code violations and property owners have yet to come into compliance with local and state codes or his rulings.
During the September hearing, he gave the property owners a warning – if they don’t come into compliance before the next special magistrate hearing, scheduled for 10 a.m. on Wednesday, Oct. 21, he’s going to start instituting fines.
Anna Maria Island Inn
Three cases involve The Anna Maria Island Inn, 3501 Gulf Drive.
Speaking for the city, attorney Erica Augello said that the property’s sign, advertising daily rentals in a short-term rental zone, has been changed, but that the property’s advertising had not been brought into compliance. According to the special magistrate order, the resort’s owner, Shawn Kaleta, had until Sept. 18 to achieve full compliance with the order.
The order also states that the owner needs new, valid vacation rental certificates for the new units and to apply for demolition permits and demolish two illegally-constructed rental units on the bottom floor of the building. During a previous hearing, it was determined that the two ground floor units, located beneath the flood level established by the Florida Building Code, were constructed by a prior owner without permits, however, it was ruled that they’re now the current owner’s problem and cannot be rented.
Najmy argued that the owner has applied for the permits but the applications didn’t meet the city’s requirements for approval. He said he felt the requirements for approving the permits supplied by Schwartz are “overreaching.”
Augello also said that city code compliance officers have photographs alleging that the units are still being rented in violation of city codes and the special magistrate order. Speaking on behalf of the owner, Najmy said that the units are not being rented but that there are owners using the property. Connolly advised that Najmy may want to have those owners testify during the next special magistrate hearing when he’ll consider the fines.
Bali Hai
Two of the cases involve the Bali Hai Beach Resort, which is also the subject of a lawsuit with the city of Holmes Beach. The first case concerns work done on an accessory building without permits in violation of local and state building codes. The second case concerns selling alcohol on the premises without an approved site plan from the city; the alcohol sales are taking place in the accessory building.
The September special magistrate hearing was held two days before the deadline Connolly gave the property owner to submit a site plan for review and get the required building permits.
Augello said that the site plan has been submitted and is currently under review. To be approved, she said the site plan has to first go through a development review committee, then go to city commissioners for a work session and then a public hearing.
“There’s no way that they could’ve come into compliance by that date,” she said of the Sept. 18 deadline given by Connolly.
Where the property owner is still out of compliance, Augello said, is that none of the required building permits for work already done have been granted.
Representing the property owner, Bali Hai JV LLC, and manager Shawn Kaleta, was attorney Louis Najmy. Najmy argued that the permits have been applied for, but the applications were denied by the city’s building official. Building Official Neal Schwartz said that additional information is needed and the permit applications have to be resubmitted to be considered for approval.
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