DOAH Special Magistrate Hearings - January 7, 2025 (2025-01-07)

9:00 AM

Fort Myers Beach Special Magistrate Hearing Division of Administrative Hearings

Town Hall Council Chambers 2731 Oak Street Fort Myers Beach,FL 33931 Tuesday, January 7, 2025

Minutes

9:00 AM

ORDER OF BUSINESS

I. CALL TO ORDER

Town Clerk Amy Baker, Town Attorney Nancy Stuparich, Floodplain Manager Carl Thomas and Operations & Compliance Manager Thomas Yozzo were present.

II. NEW CASES TO BE HEARD

Town Attorney Stuparich noted the town would present four cases, with four requesting to be continued. The four cases to be heard today are A,B,C,and G. She indicated copies of exhibits were electronically sent to the judge and representatives were present.

The Special Magistrate introduced himself as John Van Laningham from Tallahassee. Town Attorney Stuparich commented that cases D, E,F and H would be continued to February 4,2025.

A. 1035 Estero Boulevard, KLC Surf LLC / La Ola

Operations & Compliance Manager Thomas Yozzo described his duties with the town. On September 19,2024, he observed shipping containers on the property, which he determined to be non-compliant based on current floodplain regulations.

DOAH Case #: 24-004407

Amy Thibaut from Roetzel & Andress represented respondents Chris Primeau, KLC Surf, LLC and Thomas Houghton, La Ola. Town Attorney Stuparich stated she would display and describe the exhibits. All the information was included in the agenda packet. Exhibit A was a letter from FEMA with the Post Disaster Compliance Status Update Report from FEMA. She read highlighted sections of the report and explained how the town complied with the requests. She read portions of FEMA's November 12, 2024, letter and stated the town worked with owners with non-compliant structures on their property.

Case Number: 20240915

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According to the Fort Myers Beach Floodplain Manager Carl Thomas, the shipping containers were not elevated, and the structures were noncompliant. A certified copy of the notice of violation was sent to the address on record on September 24, 2024, posted at the property and Town Hall. All copies were included in Exhibit B and information was displayed on the town's website under Public Notices. Photos accurately representing the condition of the shipping containers were included in Exhibit

C. Mr. Primeau was given 30 days to remove the shipping containers or come into compliance with the town code. Officer Danielle Batt inspected the property on November 18,2024,and the shipping containers were still on the property. She prepared an affidavit of non-compliance, which was included in Exhibit D. The property owner received a letter revoking its permit on December 19,2024,which was in Exhibit F.Exhibit G contained a notice of violation and a notice of hearing. Manager Yozzo inspected the property on January 6,2025,and took photos of the shipping containers still on the property. He requested the photographs be added to Exhibit H.Town Attorney Stuparich explained that the exhibits mentioned differed slightly from what was initially filed with DOAH.

Attorney Thibaut indicated that she would present after the town's presentation.

Manager Thomas described his education and experience. He reviewed his conversations on September 24, 2024, with Manager Yozzo concerning the violation. He noted that relevant sections of the Land Development Code (LDC) and an excerpt of the American Society of Civil Engineers (ASCE) standard 24-14 regarding design and construction standards were a part of Exhibit E. He accompanied Manager Yozzo during inspections in December and yesterday. To illustrate the hazards non-compliant structures could cause, he received a photo from Town Manager Andy Hyatt after Hurricane Milton showing that a non-compliant structure was displaced and ended up in the area of North Estero Blvd. He did not know who the structure belonged to, but it posed a hazard to the community. In his opinion, the shipping container on the property was non-compliant with the town's floodplain ordinances. He indicated that he believed Public Works Director Jeff Hauge took the photo.

Town Attorney Stuparich requested a finding of violation as of January 6, 2025, requiring that the property owner come into compliance with the town code or remove the shipping containers within a reasonable period of time, a fine of $250.00 per day in the event there was no compliance, an administrative fee of $250.00 and authorize the town to abate the violation by removing the shipping containers if compliance is not obtained by March 1, 2025. The property owner will pay expenses incurred by the town within 30 days and a lien will be imposed if expenses are not paid. A proposed order was included in the information sent to the Special Magistrate.

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Attorney Thibaut's presentation included an Overview of Property, History of Case, Trailer Images, Overview of Case, Summary of Argument, Containers Do Not Violate CFR Requirements, FEMA Regulations - 44 CFR 59.1, Configuration of Subject Property, Containers Do Not Violate LDC, Sec. 6- 403, LDC Intent (Floodplain Regulations), Sec. 6-501, LDC, Sec. 6-443, LDC The Structures are Not Exempt From the FBC, Sec. 6-525 LDC - General Requirements for Other Development, ASCE 24-14, The Containers Meet the Requirements of Sec. 6-525, LDC, Cannot Penalize Conduct that not Prohibited, Law Must Provide Fair Warning of Prohitibed Conduct, Containers not Prohibited in Current Configuration and Therefore Cannot be Penalized, Equitable Estoppel Applies to Permit Recission, Substantial Hardship will Result and More than Property Owner and Operator. Special Magistrate Van Laningham asked Attorney

Attorney Thibaut indicated that the trailer photos were included with the temporary use permit application in November 2022. Thomas Houghton, respondent, testified that his friend owns a trucking company up north and drove the trailers to Florida. The containers were originally on the ground until the town informed him they had to be elevated, so the town was aware the containers were on the trailers. He added that the trailers were clearly visible in the evacuation video footage. Attorney Thibaut stated that a link to the video was included with the town's letter to FEMA dated November 1, 2024, and was in the record. She was not aware that there was a factual dispute regarding the trailers. Mr Houghton described the evacuation video and noted it took about four hours, but it could have been done in an hour if they had just driven over the bridge. He commented that he had approximately 21-25 employees and entertainers.

Town Attorney Stuparich questioned whether Mr. Hougton received his permit before July 19,2024,and he replied affirmatively.Mr. Hougton provided details of the pick-up trucks used to pull the trailers.Town Attorney Stuparich asked why he brought the containers back after evacuating for Milton.Mr. Hougton responded that his containers were not non-compliant He confirmed the containers were removed on Monday, October 7,2024 starting at 7:00 a.m., two days before the hurricane.

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Town Attorney Stuparich requested that Manager Thomas discuss the day-to-day interpretations and applications of some CFR sections. Manager Thomas explained why the containers were in a gray area between a structure, trailer, and RV. He confirmed that the deck and stairs were not attached to the trailers.

Manager Yozzo stated the notice of violation was posted on the property on September 24, and the respondent left on October 7 before the hurricane. They came back after they knew they were in violation. Attorney Thibaut noted that receiving a notice of violation did not mean there was an actual violation and she asked that the statement be stricken from the record. Special Magistrate Van Laningham agreed to strike it from the record. Special Magistrate Van Laningham asked whether both parties wanted to submit their arguments in writing. Both parties agreed. Attorney Thibaut will submit her argument by January 17, 2025, and Town Attorney Stuparich will submit hers by January 24, 2025. Special Magistrate Van Laningham will issue the order before the next hearing.

B. 1821 Estero Blvd., 1821 Estero Blvd Corp / Steve Larson dba Sun and Fun Rentals

DOAH Case #: 24-004834

Case Number: 20240914

Town Attorney Stuparich provided an overview of the case. She noted her comments were tied to the documents in Exhibit A, which included a letter from FEMA dated July 19, 2024, with a summary regarding compliance with codes and a detailed report regarding temporary non-compliant structures. She noted the town was placed under a deadline of November 18 or 19, 2024, to remedy the matter and the town requested an extension to June of 2025. A video was linked to demonstrate how quickly containers could be removed from properties in the event of a hurricane warning. FEMA replied that they were not authorized to grant an extension and she summarized their reasons. She requested that all exhibits in the packet be entered into the record.

Manager Yozzo requested that all exhibits be entered into the record. On September 19,2024, he observed three shipping containers he determined to be non-compliant based on the current floodplain regulations. He testified that the shipping containers were not elevated to the best of his knowledge and did not have engineered plans to meet the regulations. He consulted with Manager Thomas, who confirmed that the shipping containers were noncompliant structures. A copy of the certified notice of violation was issued on September 24,2024,and included in Exhibit B.The notice of violation was posted on the property and in the town hall. He requested that the affidavit of mailing and posting be entered into the record. Photos accurately documenting the violation on September 19,2024,were in Exhibit C. Additional photos showed the posting of the notice of violation on October 2, 2024. The property owner was given 30 days to remove the containers or come into compliance.

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Officer Marcio Chavez inspected the property on December 10,2024,and the containers were still on the property. Officer Chavez prepared an affidavit of non-compliance, which was included in Exhibit D.The owner received a letter revoking his permit on December 1,2024,included in Exhibit F.Exhibit G contains a notice of today's hearing sent to the property owner. Manager Yozzo was accompanied by Manager Thomas when he inspected the property yesterday. He took photos that verified that the containers were still on the property and were in Exhibit H.

Gordon Stojkoski, the respondent, did not have any questions for Manager Yozzo.

Manager Thomas testified that he had conversations with Manager Yozzo in September 2024 regarding concerns about the shipping containers that were in violation of the floodplain regulations as claimed by FEMA. He explained the criteria to be satisfied for compliance and a copy of the code and an excerpt of ASCE 24-14 are in Exhibit E. He accompanied Manager Yozzo to the property the second week in December and yesterday. He discussed the requirements to meet the floodplain regulations. Public Works Director Jeff Hauge took a picture illustrating the hazard caused by the displacement of non-compliant structures after Hurricane Milton. In his opinion, the shipping containers located on the property were non-compliant with the town's floodplain ordinances.

Town Attorney Stuparich stated she provided a draft order and requested a finding of violation, a period of time for the respondent to come into compliance, a fine of $250.00 for each day the violation extends beyond the compliance date, an administrative fee of $250.00, authorizing the town to abate the violation if there is no compliance by March 1, 2025, with expenses to be paid by the respondent within 30 days. If not paid, the town would request certification of the amount owed to be imposed as a lien on the property.

Mr. Stojkoski explained that he had a successful business with about 40 fulltime employees before Hurricane lan. The storm wiped out the building and a family home behind the restaurant. He explained that Steve Larson, a bicycle rental business owner, also lost his structure and approached him about leasing his parking lot space to open his business. Mr. Stojkoski thought it was a wonderful idea, and the town issued permits, but the town came back and said they were issued in error. He explained that Steve took out a loan and bought the trailers to the specifications provided by the town. Pictures of the containers with axles and tires were in Exhibit H and he indicated they could be moved within an hour. He questioned whether the containers would be compliant if FEMA were not involved since the town initially approved them. He added that the town revoked the permit a few weeks ago. He discussed investing a lot of money and hanging by a thread after losing everything. The containers were specifically purchased based on the town's requirements, so why would they issue permits for non-compliant structures?