Submitted by Suanne Z. Thamm
Reporter – News Analyst
August 26, 2019 – 2:00 p.m.
Following considerable discussion, the Fernandina Beach City Commission (FBCC) at its August 20, 2019 Regular Meeting voted 3-2 to approve Resolution 2019-136, which accepted a 5-2 recommendation of the city’s Code Enforcement and Appeals Board (CEAB) to reduce fines from $300,000 to $20,000 and authorize full release/satisfaction of liens for violations at 400 South 8th Street and 421 South 9th Street.
Attorney Miriam Hill and property owner Mark O’Brien appeared before the FBCC asking them to support the CEAB recommendation to reduce the fine and to release the liens on the property.
This action brings to an end a long running saga of code violations involving signs, building maintenance and cleaning of lots officially dating back to 2015 for South 8th Street commercial property formerly known as Taylor Rental owned by Mark O’Brien.
O’Brien, who claimed that he did not know or understand what to do following his receipt of code violation notices from the city in 2015, failed to respond or appear before the CEAB to explain or seek guidance. Finally, at the prompting of Mayor Commissioner John Miller, City Attorney Tammi Bach reached out to local attorney Miriam Hill to represent O’Brien. She has done so pro bono since 2018, and successfully worked with O’Brien to clear vegetation from the property and remove an obsolete sign, generally improving the appearance and condition of the property.
Hill has also worked with O’Brien to sell the property. While it appeared that there was a buyer last year, the deal did not materialize. Hill claimed that one of the obstacles to any sale was the $300,000 fine and subsequent liens the city had filed against the property.
Earlier CEAB action
At the June 6, 2019 CEAB meeting, the board heard that the property had come into compliance. Hill reminded the members that the goal of code enforcement is compliance, not raising revenue for the city. City Attorney Bach also advised the board that foreclosure on the property to recover the full amount of the fines remained an option.
CEAB Vice Chair Adam Kaufman worried that reducing the fine to such a degree would set a precedent for future violators who come before the board. But other members disagreed, expressing their opinions that cases should be decided on their own merits. Member Nicole Kresse said that foreclosure should only be considered if the property presented a public hazard. The CEAB finally voted 5-2 to accept the reduced fine inclusive of administrative costs since the property was now in compliance.
The city commissioners expressed their discomfort with having to deal with the matter before them.
Commissioner Chip Ross expressed concerns that what has been done previously followed state law and whether the FBCC has the authority to reduce the fine, citing an Attorney General’s Opinion (AGO) and state statute. He wanted to bring in an outside counsel “to determine appropriate due process.”
City Attorney Bach disagreed with Ross’ interpretation of the law. She said that nothing is clear because there is no binding case law, and three AGOs are all different. She said that AGOs are advisory and meant to be persuasive when there is no law to consult, but they are not binding. She said that there are two separate liens filed against the property in 2017 and a total fine of $318,000. Bach said that Code Enforcement Officer Michelle Forstrom had reported that all violations had been brought into compliance in February 2019.
Bach said that the legal issue as she saw it was whether the CEAB had the authority to reduce fines after the liens were filed. She added that for years the CEAB has been reducing fines after liens have been filed. She said that over the past 12 years the CEAB has been receptive to reducing fines based upon potential sale of the property, ongoing maintenance, etc. She went over the activities of the last 18 months during which Attorney Hill and Code Enforcement Officer Forstrom have met to review the violations and address them. “O’Brien did everything Mrs. Hill asked, and in a timely manner,” Bach reported.
Following the CEAB’s inability to agree on the amount of a reduced fine, they asked Bach to work with Hill to bring back an acceptable figure. The CEAB accepted the recommendation of $20,000 which could be paid within 30 days. Bach said that while the city has only been involved with this property over the past two years, the building had been deteriorating over many previous years.
Bach recommended that the FBCC accept the recommendation and remove the liens. She said that the city already has the check in hand, which has not been deposited pending the FBCC’s approval.
“I don’t think this is over with respect to Mr. O’Brien’s keeping the property in compliance due to its age and state,” Bach said. “I was informed today that new violations have occurred and that the city has been working with Mr. O’Brien and his attorneys on these.”
Bach said that under the City Charter, she is both the city attorney and counselor for the city. In her latter role, she said, it is her job to try to keep the city out of disputes that could lead to litigation. “I think we have spent enough time, resources and money on this particular case,” she said, adding that those figures will continue to mount if the FBCC fails to approve the recommended settlement.
She declined to speculate on O’Brien’s financial ability to pay or his motivation in ignoring earlier notices of violation. She suggested that the city develop policy and procedural changes to avoid future such cases.
“Our interest as a community is to get this property to change hands so that it can become a better development,” Bach said, agreeing with Hill that the liens had been an impediment to the property’s sale. “Or Mr. O’Brien has to up his game to insure that his property remains in compliance.”
Vice Mayor Len Kreger did not question the CEAB’s ability to reduce fines.
Commissioner Phil Chapman said that he had many problems with moving to approve the fine reduction and lien removal. He said that in some of the materials he received, O’Brien said he had just “given up” in trying to remedy the violations. “Is that the precedent we are trying to set?” he asked. “Just give up and five years later the city will say, aw, don’t worry about it. I think we are setting a very dangerous precedent.” Chapman said he found it hard to understand how all these violations could be cleaned up when a potential sale was pending, but that as a businessman, he could not have taken care of these violations for years. “If he was so gung-ho on compliance, why is he now out of compliance again? There’s no way I can support this,” Chapman declared.
Commissioner Mike Lednovich agreed with Chapman and said, “If you were throwing yourself on the mercy of the court, would you have continued to commit those crimes while awaiting mercy?” Lednovich suggested that if the FBCC accepted the settlement, in three years fines would be back to $300,000 for continued violations. “I’m not going to vote for this.”
Kreger said he would support it both to show support for the CEAB members work and ruling and to hopefully hasten the sale of the property.
Ross said that he had read all the materials and all the letters from lawyers on this case. “The one thing that’s clear is that nothing is clear,” he said. “We need to know what the rules are. Just because we’ve done it a certain way doesn’t mean that it’s right. I think we need an outside legal opinion.”
Lednovich shot back, “I didn’t hear our City Attorney say she was unclear.” Turning to Bach he asked, “Are you unclear?” She replied, “No.” Ross continued advocating for a ruling at a higher level.
Mark O’Brien and Miriam Hill addressed the FBCC after 30 minutes of FBCC discussion. O’Brien gave a brief history of his ownership of the property and agreed that he should have addressed the violations sooner. He claimed he had no idea that the city could place liens on the property. He said that he has expended considerable money to address building issues, but that “it would not be prudent” to invest the amount of money in the 1939 structure if the next owner will just demolish it. He asked the FBCC to approve the reduction in fines and to remove the liens.
Miriam Hill said that following his father’s death, O’Brien had inherited a lot of “undone work” from over the years. She said that there was no excuse for that, but since she has been involved in the case, her goal was to make forward progress, which she believed has been achieved, and to help O’Brien understand the gravity of his situation.
She said that she has participated in reviewing live offers for the property which remains on the market, but in dealings with potential buyers, lenders and the Small Business Administration the outstanding fines and liens need to be resolved. She said that it is Florida Statutes, not AGOs, “that clearly and bright line provide the guidance and comfort you are looking for. FL 162.09 allows the CEAB to reduce fines. They did not make a mistake, Tammi did not advise them improperly. That was the proper process.”
Hill cited all the ways in which the CEAB had deliberated and considered the case properly. She again stressed that the point of code enforcement is to bring property into compliance, not to create “windfalls” for the city. She concluded saying that she feared the city was viewing the proposed settlement as an error in process, which it was not. “To have dual hearings on the same matter of law would be a frustration of due process,” she said.
Chapman expressed his inability to understand why O’Brien just “gave up” instead of trying to understand the ramifications of continued violations back in 2014. O’Brien addressed his confusion over the sign violations and lack of understanding that he could simply remove the sign. He had received conflicting signals from Taylor Rental, which he thought continued to be his franchisor.
Ross expressed his frustration with the entire case. “Enough is enough,” he said. “I’m going to vote to approve this. What we need to do is come up with a clean procedure for going forward. I still don’t think this thing is legally clear. I’m not a lawyer, but I can still read the law. Abraham Lincoln never went to law school. We can read the law.”
Mayor Miller addressed his remarks to O’Brien. ”We talk a lot about who we are as a city. … You have a long history here and you ended up inheriting what your father left you. … The things I’ve heard here tonight cause me grave concern. The purpose of Code Enforcement is to bring things into compliance. Safety is number one, but compliance is number two. … Once you get this done, you are able to sell your property, so you can walk away with something from your family history. My goal was to see that you did not walk away with nothing. That’s been achieved. Thank you for providing your business services to the community for such a long time, and I’m sorry things went the way they did.”
Miller called the vote: Kreger, yes; Lednovich, no; Chapman, no; Ross, yes; Miller, yes.
The resolution was approved after 45 minutes of discussion on a 3-2 vote.