Code Enforcement Board - Regular Meeting

Ready? Ready.

Now I hereby call this meeting to order. This is the special magistrate for the city of Delray Beach. Cases are gonna be called in the order in which they appear on the agenda. When you hear your case called, go ahead and proceed to the podium on my left hand side. The city will present its testimony and evidence first. You'll have an opportunity to ask questions of any of the city's witnesses and review any evidence that the city has submitted, after which you can present your own testimony and evidence, and I will make a decision. This is a quasi judicial hearing, which means the formal rules of evidence do not apply. However, all testimony is taken under oath under penalty of perjury. Second item on the agenda is approval of minutes. I have the minutes from 04/30/2025, and they are hereby approved. Are there any changes to the agenda?

There are no changes to the agenda.

No changes to the agenda. Can we swear on the witnesses? Anyone that's gonna testify or you think you might testify? There's a possibility that you might testify. Please rise and raise your right hand to be sworn it.

By the authority vested me as a notary of the state of Florida, do you swear or affirm that the testimony you're about to give is the truth, the whole truth, and nothing but the truth?

You can be seated.

Go ahead and call the first case.

Case number 1254685. The owner's name is three zero two Northeast sixth LLC. Registered agent, law office of Paul a Krasker. Property address is 302 Northeast 6th Avenue. Code officer is Enrique Fernandez, and it's presented by Henry Thompson.

Okay. Good afternoon. My name is Henry Thompson, clean and safe administrator. On 05/06/2025, code enforcement personnel inspected the property located at 302 Northeast 6th Avenue, Delray Beach, Florida, and observed the following. Parking spaces are not clearly demarcated, and the handicapped space requires a demarcated route to the ramp in violation Delray Beach, Beach, the located in the rear of the property for employee parking and access does not connect to the right to the roadway in violation of LDR section six point one point four subsection D subsection two, driveways and points of access.

Violation number three, the life safety plan on file with the zoning certificate of use approved on 02/24/2025 does not depict a seating structure and allows an occupancy of 67 in violation of LDR section two point four point six subsection c zoning certificate of use. A magistrate violation was issued on 05/15/2025. A magistrate violation was mailed first class and certified mail on 05/16/2025 and person personally served to the business manager on 05/16/2025. A notice of magistrate hearing was posted on 07/03/2025 and mailed first class and certified mail on 07/10/2025. The compliance date was required by 07/14/2025.

Certified confirmation of receipt was not received. Regular mail was not returned. A reinspection was conducted prior to hearing on 07/15/2025. I have nine photos to present as evidence.

Good afternoon. Lawanda Warren on behalf of the city of Doral Beach. I'm not sure if you want to ask for appearances by the respondent's attorney just in case there's

any to make your appearance?

Good afternoon, magistrate Wagner. Roy Fitzgerald of Taft Law on behalf of the respondent. Summer wind

and more general claims are resigned. That's weird. Thank you. Good afternoon, mister Thompson. I'm now showing it's been previously marked as this exhibit one for identification purposes. Do you recognize this?

Yes. I do.

And what do you recognize it to be?

This is this was conducted on 04/30/2025 along with Enrique Fernandez where we observed the parking the parking lot striping to be faded and needed to be restriped.

Okay. So in this picture here, is that where the car is kinda a little over the striker area?

That's one of the parking spaces.

Okay. City's exhibit two for identification purposes.

In this photo, 06/28/2025, we observed, which is now considered a seating structure, previously was utilized as a stage, but is now a seating structure.

And is that what you're referring to as the multi Yes. Patterned colored wooden structure? I can't necessarily tell the height, but it's well above the floor level. Correct. And you referenced as, you know, regardless of the different type of use of the structure, is this something that is not approved under ZCU and and life the safety plan?

That is correct. It's not depicted on the life safety plan submitted.

Okay. Thank you. City's exhibit three fire oh, and going back to two, when was two taken, the photograph?

06/28/2025.

And when you went out there on that 06/28/2025, was the the parking lot still in need of the the striping and everything? Correct. Alright. So now we're gonna go to city's exhibit three, which was taken on 07/15/2025. What does it depict?

It depicts some striping work done, but we do know that they haven't pulled the proper permits to get this inspected. And you I know you see freshly marked striping, but what's described in the LDR, they must be white.

Okay. So let's let's break down that testimony Mhmm. Quickly. So first of all, is there some type of permit required for this? Correct. And was there a permit required for whatever work they did? Correct. And your your testimony today that even without the permit, the sharpening that's done now is is still out of compliance. Correct. And that was on 07/15/2028 Yes. 2025?

Correct.

Alright. City's exhibit four for identification purposes. What does this photograph depict?

This is actually giving you a visual of the handicap location or parking space for a handicapping. And like like I previously said, the striping is done, especially done but it's improper because it's not too cold.

Okay. And that was on July 15 as well?

Correct.

Alright. City's exhibit five for identification purposes?

This is showing the location of where the driveway apron should be installed to connect to the roadway for the parking lot spaces that's been depicted in the rear of the property. As you can see, there's two parking spaces in the rear.

Okay. And that was also on July 15?

Correct.

Alright. City's exhibit six for identification purposes.

This was the site plan submitted with in loop parking that the respondents submitted for in loop parking. And as you can see, the blue arrow is showing that location we just saw on the previous slide where the apron should be installed.

That was it?

Two parking spaces. Right.

Alright. And that's city's exhibit six?

Correct.

City's exhibit seven, what does this depict?

This is a screenshot of the occupancy load that they have installed at the property.

And that's on And July 15?

07/15/2025.

City's exhibit eight?

Yeah. This is a just an a re inspection prior to hearing just to depict the structure is still installed at the property.

And that's on July 15?

07/15/2025.

City's exhibit nine?

We inserted this photo just to give you an idea of what that structure was previously used for. As you can see, the musician is standing on the stage.

So the structure is being used

as stated.

Correct. But as of the

As of

the violation and correction date

It's been transformed into a Correct. Seating area.

But the structure still is not approved.

Correct? Correct.

It's just the video. Alright. At this time, the city would like to introduce the nine exhibits into evidence.

Mister Fitzgerald?

Well, technically, have no objection, but last time we were down here, you you and I spoke about none of this was attached to violation. None of this was previously produced to us. The last time we were here, I spent a long time talking to you about the issues of due process. And just to to point out what what the the last time we were here, which dealt with that incident, they brought witnesses that portrayed to you that the situation was close to Sodom and Gomorrah, that it had spilled out into the streets, there was alcohol being consumed. So after that, we we found in the city's records

Is this

a Delinda Witkowski. Her comments, she was there that night and said the group that was attending subculture were mainly students, and the atmosphere was low keyed. That's not what they portrayed to you. And I'm gonna get to my point, ma'am. There there is no way you come down here, and it's almost like trial by ambush.

This could have been sent to us, but you come here and they've got pictures and they've done reinspections. We have applied, and I'm gonna call the contractor, for a a new parking application, although we don't believe we have one, and we've submitted a new life safety plan. We're to get approvals. We're on it. The the slab they're talking about, we can't pour it because there's no sidewalk there.

The sidewalk is the responsibility of the city of Delray. So if we pour it and, you know, they come and finally put the sidewalk in, it may all be from naught because we have to tear it out and redo it. We're trying to work with the city. And we'll about that when we get to the next one. But I I can call the contractor and we can tell you where we

are Hold on one second. Let me let me let the city for the record, I'm gonna accept evidence the eight exhibits. I'm gonna let the city finish presenting its case, then you can continue your argument. Okay, sir?

Okay. Thank you, magistrate Wagner. Okay. So just just to wrap up the testimony, as of the compliance date in this this case, was the respondent still out of compliance violations?

Yes. That's correct.

Okay. Alright. And did you based on your training and experiences and your research into this matter, what is the danger level of not having a life safety plan and not being in compliance with that unapproved structure in the building?

From my understanding, the patrons inside that business need proper egress just in case there is a catastrophe or anything, fire or anything, they need to get out quickly. Anything obstructing those egress areas would cause something to happen to lives.

And is that and I believe there's an occupancy, I believe, of 67 in there. Was that structure is that structure obstructing the ingress and egress?

Possibly.

Okay. We would have to have a would we have to have a full life safety plan to to be able to do make that termination? Correct. Okay. Thank you. At this time, the city would like to call miss Amy Alvarez.

Oh, let me see. Mister Fitzgerald, do you have any questions for the officer? No,

your honor. Go ahead.

Good afternoon, miss Alvarez. Good afternoon. What is your current position with the city?

Assistant development services director. And are you familiar with

the property located at 302 Northeast 6th Avenue? Yes. And as a part of your duties and responsibilities with the city, is it your responsibility to to kinda look at any applications for any life safety plans and zoning certificate of uses?

Applications, yes, for zoning certificate of use for a restaurant require a life safety plan as well.

Okay. So this particular property, what is what approvals are currently in place?

I believe it was in February. The zoning certificate of use was approved with the life safety plan and it was for just a restaurant.

And back in February when this was approved, was there any type of structure, I mean, you know, based on the test one we've seen, it's been used at one point as a stage or at one point a seating area. Is this something that was on the approved ZCU with the life safety plan?

No. The life safety plan sent to the planner reviewing the ZCU on February 13 did not show a stage on the plan. Oh,

alright. Thank you. And so that's all. Thank you, miss office.

Mister have you reviewed the new life safety plan that's submitted?

There has not been a new life safety plan submitted. I saw one yesterday that was brought into the city for with the intention of submitting, but we couldn't accept it because it does need to be accompanied by a ZCU.

Did you know if it had been previously filed

submitted for this address related to a ZCU in the city's portal. When was the last time you checked? Not prior to today I

guess. Have If you're speaking of building permits that's a different portal.

Ma'am, are you aware that in or about January 2025, a life safety plan for subculture coffee was was submitted?

My documentation shows that on January 3, a ZCU was submitted without a life safety plan. And then on February 5, the ZCU life safety plan began review and that included a stage.

What was the date?

That date is February 5.

Okay. And that plan showed the stage, correct?

That plan did, yes.

Okay. And what's the status of that plan?

Staff emailed the applicant with questions and then on February 13, life safety plan was sent in without the stage and that is the life safety plan that was approved with the ZCU.

Okay. And

So it superseded the one with He

did not see a new proposed life safety plan on the portal. Was that your testimony?

Mr. Fitzgerald, can you speak into the mic? I'm happy You to hear

did not see a new proposed life safety plan on the portal?

If it came in so we just planning and zoning side, which is what prop who processes the ZCUs, just went digital in the June. And no, have not seen a submittal for this business and a life safety plan in that portal.

Okay. And have have you reviewed a a new parking plan for the business?

There is a building permit for restriping the site that I have have seen.

Okay.

I've not reviewed it. I've glanced over it knowing that it was not yet correct.

Okay.

It is still in process on the building permit portal.

Okay. So it's not been approved or denied. Correct?

Correct. Comments were sent to the applicant, I believe it was mid June. And so response to those comments is still pending.

Would you agree with me that the owner is attempting to work through these problems?

If you know, you can answer.

I mean, they've submitted a permit, and they came in yesterday intending to submit safety plan, so it looks like it.

Okay. No further questions.

I just have one follow-up question. Did you say that they came in yesterday?

Yesterday afternoon. Yes. A representative.

What was yesterday's date?

I'm guessing, twenty second.

So that will be after July 14, which was the first date at this case. Correct? Alright. Thank you. I'll go further. No. Not today.

City have any other witnesses? No.

Mister Fitzgerald? I'd like to call very briefly mister Mayo, and then I'm gonna call the contractor.

Go ahead.

Please state your name. Rodney Mayo.

I'm gonna show you what we'll mark as exhibit one and ask you to identify that for the magistrate.

Mister Michaud, you're gonna have to speak up or into the mic because I I can't hear you very well.

I'm I'm gonna show you a document which we'll mark as exhibit one and ask you to identify it for the magistrate. First, let me let me do this.

Okay.

Okay. What what what is this document? What is this document, mister Mayo?

It looks like a c zoning certificate of use that says received 03/19/2024.

And if you flip them back, does that show the stage?

Yes. Correct. Okay. That's the original one, like, opened Yeah. Six years ago.

Okay. I have no further questions, mister Mayo.

Thank you.

Does the city have any questions?

Yeah. I just wanted to this particular application that

Sir, please come back.

Mister Mayo referred to. One moment. You know, we can I'll be calling my witness if there's any rebuttal. Thank you.

Alright. Thank you, sir.

I'd like to call the contractor. Sir, please state your name.

Tony Stallmaker. And

what what do you do for a living, sir? I'm a general contractor. Are you involved with the property that's the subject of this hearing?

I have been assisting with that project. Yes. In

what specifically have you been assisting with?

This life safety plan post CO occupancy, the new one that I believe you have a copy of in front of you.

Yeah. Okay. Let me that's short, short circuit. Is this a copy of the life safety plan?

Yes.

Was that was that submitted to the city of Delray? Yes. When was it submitted?

I couldn't tell you the first date it was submitted, but it was thirty, forty five days ago approximately. Approximately.

And what happened to that submission?

I I don't know. My my staff submitted it, and comments or what have you were sent back as far as I know.

Okay. What else are you doing in regards to the property?

Assisting with pulling a permit, which we started submission on, I believe, in March, which was accepted sometime in May for the concrete to extend the driveway to the two parking spots spots behind the building.

And why hasn't that been completed?

We don't have a permit yet for that.

And are you involved in any way with the

strike the parking lot, which was done, and it was clear that they weren't happy after the re striping, which is what I was asked to do, of to that that restriping wasn't sufficient and that a restriping permit would need to be acquired, so we've applied for that.

Okay. So is it fair to say that the owner is attempting to correct these problems?

Yes. I've been assisting with those problems for three or four months.

So this is not something you've you've started at the last minute. Is that correct?

No. He contacted me late February, May, somewhere between February, March with this to start on. Okay.

And as to the life safety plan, does it show the stage? Yes. They call it a stage, but it's actually a sitting area. Correct?

It can be used for anything. Okay.

I have no further questions.

I just have one question. This life safety plan, I believe, I'm gonna bring it up, that you provided, this is not approved. Correct?

Approved by who?

The city.

No. Not that I know of.

Alright. Thank you.

Alright. No further evidence.

Mister Fitzgerald, do you have any other witnesses?

I I do not.

One moment. Okay. I'd just like to call miss Alvarez just for a

quick

rebuttal. Miss Alvarez, I previously showed you, well, I guess I'm now showing you what the respondent marked and from a March 2024 zoning certificate of use application. Correct? Correct. Just to take a look at it. Mhmm. Is there any indication on this ZCU that there is some type of structure? I believe even contractor said it could be used for any purpose, whether it's a stage or seating area within the zoning certificate of use application that was approved Well for this specific one that we're looking at because there are subsequent ones. Correct? Correct.

So the the three pages that were given to us include the signed z c u and a plan. However, our files do not have a plan associated with them. This was, I believe, prior to staff requiring all restaurants to submit a life safety plan with their ZCU, and that would be why we don't have it with it. But I do not have it. I have two scanned copies of it of an approved ZCU. Neither one of them has a plan with it.

And neither one of them has any indication that there's some type of structure that would possibly

Right. None none of the notes on the ZCU indicate a stage or the need for any type of stage.

And just to be clear, currently on file for this particular property, is there any approved, so in certificate of use or life saving plan that indicates that the respondent would want to have that type of structure in the property that they're in violation for today?

There are no approved CCUs that include a stage on the plan.

Okay. Thank you. Mr. Fitzgerald? Ma'am, do

you know how long that stage has been there?

Do I know how long? No.

Correct. Have you ever been there?

One time when we had a city meeting with the business owner.

And was the stage there?

I don't specifically recall.

I have no further questions, mister Whiteman.

Is there anything further from either side?

No further testimony witnesses from the city.

City wanna present? Tell me what they're asking for?

Yes. I just wanna make a quick argument here. So what we're here for today is for three violations. One is for the parking space is not clearly demarked, and the handicap space requires a demark route to the ramp in violation of LDR four point six point nine d eight marking and signage. As we've displayed from the photographs and exhibits, the marking the striping is is not proper.

Although there appeared to be some some type of attempt, there wasn't a permit for this, and it's still out of compliance as of the July 14 compliance date in this matter. The second violation that we're here for on this case is a concrete pad located in the rear of the property for employee parking access does not connect to the roadway, which is in violation of LDR section 6.14 d two. We heard testimony from mister Thompson, and we saw photographs of this not being in compliance as of the July 14, and it's still out of compliance. And the last one is the life safety plan filed with the the zoning certificate of use. The one that is actually in question that we heard testimony from our Assistant Director that was approved on February 24 does not depict any type of stage and allows for occupancy of 67.

You know, we're calling the structure whether it's a stage, whether it's a seating area. The contractor said that it could be used for any particular purpose. In any event, a life safety plan is necessary because this isn't, you know, just to for safety in the building. And based on the testimony of mister Thompson, this is possibly inhibiting ingress and egress, which is, you know, dangerous, but we don't have any information on the life safety plan. In any event, based on the review of this case and the familiarity, Ms.

Alvarez has decided that there is not any approved downing certificate of use on file with this type of life safety plan. And we haven't heard any testimony or or provided any evidence of that as well from the respondent. So based on all of that, the city's position is that the respondent is still out of compliance with all of all of this, and we would ask for if mister Thompson has recommendation.

City suggest obtain approved permits for the parking lot striping and apron in thirty days and submit a revised zoning certificate of use in sixty days that includes the required safety plan and includes the seating structure or $250 daily fine for each violation.

And and just for clarification, as far as for one and two, definitely the thirty days to come into compliance for three, you know, the respondent can get with the city, but if they wanted to remove that, that's that's an option in the city's position that that shouldn't take more than thirty days. But if they did want to go to the route of the approval, then we're we're recommending the sixty days or the fine would accrue.

Just so I'm clear, the city's asking for thirty days to get the permit for the parking.

Approved permit. Yes.

And sixty days for the the driveway apron. Is that the sixty days?

Thirty days for that as well. So if you if you go if you look at the the the violation, number one, which is the the parking space is not clearly I guess it says four here. Parking space is not clearly demarcated. The city is asking for thirty days or that fine would approve. Right?

The second violation, which is, I guess, number five here, is indicated on the top in the description. The concrete pad located in the rear property for employee parking does not connect to the roadway. So in this, obviously, as we stated in there, a hardscape application must be submitted and the driveway connection must be completed. So this is the thirty days to to get that application in store. The third one, which is the life safety plan on the the ZCU when approved that wasn't approved to get that structure, we're still saying thirty days if they wanted to remove remove it, but it's up to them how they wanna come into compliance or the fines were, you know, regroup if they go the removal route.

If they want to possibly try to keep the structure, then we're we understand that that might take some time to go through the city process. So that's why we are, you know, asking for sixty days, which is quite generous because they've been going through this process. Right? So already and have started the submittals as we've heard today or the fines would approve to get that approved, that life safety plan in the ZCU.

Mister Fitzgerald?

As you heard, we've the parking permit. We've submitted the life safety plan. I don't know if the timeframe they're asking for is going to be enough to get those permits issued. And if in thirty days we don't have the parking permit and we're going to start getting fine when they hold ability to give us the permit so we can go do it. Same with the life safety plan.

Those both have been done, but now it's in the city's court to review them and issue them. So to say it's thirty days where you're going get fined, we've already submitted them. What I would ask is maybe you have us come back and get a status report from us as to where the parking permit stands and where the life safety stands. Because if they get rejected for some unknown reason and we have to resubmit them, it may take some more time. But we're trying to clean up these problems.

The apron, I don't know if thirty days is enough, to get that permit. There's a missing sidewalk. We're gonna have to work with the city to either do a workaround or have them come out and put a new sidewalk in so we can connect it to the road. So I don't know. And again, it would seem this is something have us come back in thirty days and get a status report.

And if we're not living up to getting these permits, but two of them have already been applied for and the third one will be applied for probably posthayes after this hearing if you tell us, yes, come back. But we're trying to do what they want us to do. We restriped. It's not a defense, but we didn't know we needed a permit to restripe that which we already had a permit to have striped. So my suggestion would be to just have us come back sometime in the future for a status report given that we've two of these If I

might, let inquire to the city. The timelines that you've given, are those viable timelines based on where this Yes.

Absolutely. And we we had some discussions about this previously, so I can respond to that. Not only has the city been working with them and trying trying to assist with this, but for instance, one of them is the driveway striping. I'm just checking our permit screen now, and it's been what the comments have been with the applicant for over, like, thirty days. Right? So the city can only move as fast as the respondent responds. Right? So to say that it's not enough time when they they've been sitting on comments for thirty days, I think, you know, you know, I think it's definitely a reasonable amount of time. You know, there are different routes they can get with city staff. You know, I'm not here to comment on route to compliance, but some of these permits could be combined.

Right? So I I would just I just would argue that our requested time frames are more than reasonable considering the history of the interaction interaction as far as trying to get these resolved and

the city responded. The city is asking for the permit to be issued, not the work to be completed?

Yeah. At least that. Because once they get permits, they have time to complete the work. I just wanna confirm with that with mister Thompson. Correct? Correct.

It it doesn't seem unreasonable to get the do is it mister Fitzgerald, do you understand why the the comments haven't been responded to?

I don't. I'll get to the bottom of that. But I know with this apron issue, I guess they were told they have to do some traffic study and that's gonna take more than thirty days. We gotta go to the city and and work with them through that.

Well, what about the hold on, Zach. That's a legitimate issue. What about the the apron issue? Can that be done in thirty days?

One moment. Let me just confirm.

I don't know where that comment came from and how it would be required on these requests for these permits. We don't require traffic statements with permits. We require them with our development application but not with permits. So I'm a little thrown off on that one. I'm I'm not sure why it would be requested or required for the permit. That you would have to look into.

You're not making any you're not taking any positions either way or saying something is required or not. You're just saying that based on the information you have, do you do you think that this is possible within thirty days, what we're asking for?

For the thirty days? Yes.

This is what I this is gonna this is how I will do it. I I'm gonna go with the city's deadlines, but I will put a a status hearing in thirty days for us. And if, mister Fitzgerald, if if it turns out that the things the city is asking to do are not doable, can come explain that to me, and I'll I'll take a look at it. But but I'm gonna stick with these because but the the city isn't even asking that you complete the work. They're simply asking that the the the permits be issued within thirty days, and that that seems reasonable considering how far advanced you are on this. But but if that turns out not to be possible, then I'll I'll I'll put a a status here, and you can come back and explain it to me.

K. Thank you.

Alright. So in case 254685, I'm gonna make the following findings of fact on life. I notice this is sufficient. I find the property in violation of the listed LDR sections. As to the marking and signage, you give the respondent thirty days to have a permit issued.

As to the the I guess this is a apron, 616.10.4D2, I'll give the respondent thirty days to have a permit issued on that as well. And as to 2.40.6, I'll give them sixty days to submit a life safety plan and a new zoning certificate of use. Failure to meet either deadline can subject the property to a fine of up to $250 per day. We'll set a status hearing thirty days from now to check status and make sure that the deadlines are appropriate. Thank you.

Case number 225000010. Owner's name three zero two Northeast sixth Avenue LLC. Registered agent law office of Paul a Krasker. Property address is 302 Northeast 6th Avenue. Code officer Enrique Fernandez presented by Henry Thompson. Good

afternoon. My name is Henry Thompson, clean and safe administrator. On 06/04/2025, code enforcement received a notice from a citizen regarding an event that was scheduled for 06/07/2025 at 07:30PM at 302 Northeast 6th Avenue Subculture called open mic music and poetry. Based on further investigation, staff was able to locate an advertisement for the event posted on Subculture's coffee coffee's social media Instagram on 06/04/2024. On 06/06/2025 sorry.

Let me go back. Social media Instagram on 06/04/2025. On 06/06/2025, the city manager's office issued a letter via email and US mail to the property owner advising events held indoors or outdoors are not permitted and city commission approval for events is required. Further instruction further instructing him to refrain from further activity that is in violation of city's rules and regulations. On 06/07/2025, at approximately 09:10PM, code enforcement officer Witkowski inspected the property and observed live music and people attending the unpermitted event called open mic music and poetry.

On 06/08/2025, the code enforcement department received a citizen follow-up complaint regarding the event and submitted photos and videos as evidence because he was expressed he expressed concerns regarding vehicle and pedestrian traffic. The event open mic music and poetry was advertised to be held on 06/07/2025 at 07:30PM at Soul Culture Coffee 302 Northeast 6th Avenue, Delray Beach, Florida. Based on the facts, it was determined that the open mic music music and poetry event was held at the property on 06/07/2025 and violated the assemblies and special events ordinance section one zero one point three two of the city of Derry Beach code of ordinances. As the property owner failed to obtain a special events permit prior to the event. Magistrate violation of a magistrate violation was issued on 05/24/2025.

A magistrate violation was mailed first class and certified mail on 07/11/2025 and posted at the property on 07/10/2025. Certified confirmation of receipt was not received. Regular mail was not returned. I have five photos to present as evidence.

Thank you, mister Johnson. So the city special events policy that you were referring to, there are certain criteria that are that are looked at when determining whether a policy would be needed. Correct?

Correct.

And based on your review of all the evidence in this case, the testimony you received, the information you reviewed, was this the type of event that would require special event policy approval?

Correct.

Was there music there?

Yes.

Okay. Thank you. Mhmm. At this time, I'm I'm now showing you what's been previously marked as city's exhibit one for identification purposes. Do you recognize this?

Yes.

And you stated earlier that you received a complaint. Was that complaint at mister Daniel Rose?

Yes. Correct.

And are these the the is this the information that you received? I believe you said a flyer or something else from mister

Rose. Correct.

And could you describe it for us?

Yeah. This was a screenshot of the Instagram post with the advertisement of the open mic event. It clearly states exactly when the the time of the event and date of the event.

Okay. So it has a timing, open mic night music and poetry, 07:30PM in June 7. Correct?

Correct.

Alright. City's exhibit two for identification purposes. Do you recognize this?

Yes. This is another screenshot of that Instagram post from Daniel Rose depicting the event. And I guess this was a previous event, but this was part of the advertisement campaign.

And, you know, so these two exhibits, based on your investigation, did you actually look on the Instagram page to verify whether this is a fair and accurate representation of what was on the Instagram page?

Yes. We did.

And did you identify did you see this flyer, and did you see the description of the event?

Yes. We did.

And this is actually here. Was this a video with the advertisement?

Yes. I believe this is a video. Yes.

And could you you state to us what it says? I believe it was a little cropped on the city's exhibit one, but city's exhibit two. What is the caption?

Subculture, we've missed you all so much. Oh, yeah. Bring oh, yeah. Bring it back open, Mike, this Saturday, June 7 at Coach Adelry.

Alright. And it doesn't have a date on the post?

What I'm looking at is, yes, June 7, Saturday, June 7.

And that's the date. And then this this the date of the post, it it appears to be June 4?

Yes.

I believe that's what you testified Yes. Too. Okay. That's correct. Alright. City's exhibit there's a here. Hold on one second. Okay. So we're good. Alright. So so thank you. Thank you, mister Thompson. I don't have any further questions for you at this time. But at this time, the city would like to introduce the first two exhibits into evidence.

Mister Fitzgerald? Again, first time I'm seeing these, your honor. I don't know who took them. I I I don't know if they actually depict the the date they claim they do. Those are my objections.

As far as authentication, mister Thompson testified if if you would like an explanation. Mister Thompson testified that he received them from complainant Daniel Rose. We and we showed the screenshot with mister Rose's name on there with a copy of the flyer and the description as mister Thompson testified to during the beginning portion of his testimony as well as the second exhibit received. But not only did he receive the complaint, but as a thorough code enforcement employee, mister Thompson himself went to Subculture's Instagram page and visually saw them and stated that this is a fair and accurate representation of what Subculture posted on their Instagram page, which he testified to and also testified to the date of the event, which was corroborated with the complaint of mister Daniel Rose.

I'll allow both in the evidence as exhibits one and two. Okay. Are you you know?

I don't know if he has any questions for I have another witness, but I'm not sure if he has

any questions

for do you have any questions for the court officer?

I I do.

Please proceed.

So you're familiar with the the code relating to special events. Correct? Yes. And a special event needs a permit if it's going to affect parking, correct?

It's more than just parking.

One of the items is parking? Yes. One of them is parking. Okay. Did this this open mic night affect parking?

That I couldn't testify to because I didn't witness it.

Another item is traffic. Mhmm. Did this open mic night affect traffic?

That I couldn't testify to because I

didn't witness And one of the issues Is that the use is not customary given the area? Do recall that item?

I'm not sure what you're trying to get at.

Well, one of the items, there's a list of items that if you fall within, you have to get a permit for a special use. Correct? Correct. The And the statute deals with parks and beaches in private residents or private facilities. Correct? There's multiple venues. Okay. But parks are one of them? Yes. Beaches are one of them?

Yes. And and and private buildings? Correct. Commercial buildings, restaurants. Are you aware that a a number of businesses in the area have entertainment at night?

I object to to relevance. There's no there's no context, and there's not even test there's not even an assertion that the you know, this that is unapproved use of having music at a venue

or even that is Yeah. I'm not

sure I'm not sure why it's relevant, but if he knows, I'll let him answer.

So, like, once once again, the question?

Are you aware that there are other businesses in the area that have things such as open mic nights?

Not specifically open mics, but if you're trying to go in that direction of acting out of use, yeah, are other businesses that we are going to

address accordingly. Your view as code inspector, would a special permit be needed if Subculture Coffee Shop was going to hold a chess tournament?

Only if it would impact any city resources.

Okay. And that's the key, isn't it?

Key. Yes.

So did this open mic night impinge on any city services?

I could not testify that.

I didn't witness that. Okay. And and let me just go back. And would it be the same answer if, the city or if subculture, was to hold a scrabble tournament. Mhmm.

Like I said before, if it impacts city resources.

Okay. And again, the the key is impacting city resources. Just one more example, let's say some artists want to come and show their wares. Would your answer be the same, that a permit would be needed if it impinged on city services? Correct. Okay. I have no further questions, magistrate.

I just have a couple follow-up questions. Respondent's attorney went through a couple hypotheticals that are different situations than this case. Correct?

Correct.

And he stated that in those particular hypotheticals, there was not any musical performances. Correct? Correct. And he didn't state that those particular examples received any type of letter from the city administration that disallowed any of these type of performances. Correct? Correct. In addition to being outside of the special events policy. Correct? Correct. And you cited that one of the highlights or one of the criteria I I would call it based on the special events policy is whether city services were impacted. Correct? Correct. But isn't it true that that's not the only criteria. Correct? Correct.

And in fact, in the special events policy, it states that special events shall include but is not limited to other things including musical performance events. Correct? Correct. So just to wrap this up, in this particular case, based on the evidence reviewed, the evidence obtained, your training and experience, and your knowledge of the city's code and special events policy. Is this type of event something that would work would have required a special events poly Yes. Special events permit?

Yes. Correct.

Okay. Thank you.

City's had another witness.

Yes. I'm not miss Petowski? Good afternoon. Could you please state your full name for the record? My name is Delinda Witkowski. And what is your current position in the city?

I'm a code enforcement officer for Clean and Safe. And are you familiar with the

property located at 302 Northeast 6th Avenue? I am. And are you the code enforcement officer that responded out to the event on June 7? I was. 2025?

You are? For for June 7. Yes?

Yes. 06/07/2025. Could you describe what you observed when you went out to the property? You can just tell me and then we can go through the photos. Alright.

So I I believe it was just kinda the beginning. It was early stage of the of of the of the event. So there was a picture there just showing the in the background there's a girl singing there. So it was beginning stages. It wasn't yet crowded. Okay.

So let's let's talk about let's break that down. So since you're talking about what has been previously identified as city exhibit three, this is the evening that you responded out to the property that we're here for, Subculture. Correct? Correct. And you did you say that you observed someone singing? There was. And was she singing through a microphone? She was. Okay. She was. And there was an audience that appears watching the person sing. Yes.

On this that's on the South side as well as on the East side, there's people there.

Alright. So now I'm showing it has been previously identified as city's exhibit four. When was this photograph taken? This was taken on 06/07/2025. And what does it depict? Depicts

an open mic event. Yes. Not on the structure. However, there was an open mic event that's prohibited.

So let's write down what what you're calling the open you know, describe it as the open mic event. Open mic events typically have different types of performers. Correct? Yes. There could be poetry, there could be musical performers, there could be instrumentalists. Correct.

For for for what I know of subculture, yes. They have different performers. Alright.

And for this particular photograph that we're looking at here, city's exhibit four, what is the person in the kind of the left side just behind the struck or in front of the structure with the guitar gate case? What is she doing?

She is singing. Is she also playing guitar? She's playing the guitar. Yes.

And is there also a crowd of people looking directly at her watching her? There are. Okay. Thank you. And that was also taken on June 7 when you went there? Correct. And now we're at city's exhibit 5 that's been previously marked for identification purposes. What does

it depict? Just a different view from just the same individual singing throughout the night. There are different individuals singing or doing different events, different Different types. Perform different types of performances, and she was just singing with a microphone. And a guitar or something. And a good playing a guitar as well.

It's oh,

was actually in Portuguese.

Okay. This is a a video Okay. Of Let me go back. Alright. Thank you. At this time, the city would like to introduce exhibits three through five into evidence.

No objection.

Mister Fitzgerald?

No no objections, magistrate one.

Let the judge not accept those in evidence as city's exhibit three through five.

Okay. So just just to wrap it up, while you were there, did you witness different performers?

I didn't say for a long period of time, so no. She was the only one.

Alright. But you did witness around the time that was advertised that there were musical performances for the open mic night? Yes. Okay. I I don't have anything anything further from mister Kotowski.

Mister Fitzgerald? Brief briefly, magistrate Wagner. Good afternoon, ma'am.

Good afternoon, sir.

Thank you again for the water.

You're welcome.

If mister Rose had not called the city, would you have gone out to witness this event?

I would object to to to relevance,

get to relevance in one second.

Give you a little leeway.

To be honest, I do because this has been going on for a long period of time, I do constantly during the weekend, Thursday, Friday, Saturday stuff, I do always drive by and see how things are.

Okay. But mister Rose called and lodged a complaint. Correct?

I received the orders from my bosses to do, so I didn't receive it from him personally.

Okay. But you heard earlier that miss Wimmerner said that there was a complaint from mister Rose. Correct? Correct. Okay. Are are you aware that mister Rose has agreed in open court at questioning to a a circuit court judge to stop complaining about subculture?

I'm sorry. I do not know anything about that.

Okay. Did this open mic in any way impinge any resources of the city of Delray Beach?

At the time, no. Doesn't mean that it couldn't have. If there was if it was well advertised and a lot of people showed up, it could have been an issue at the time, but it none nonetheless, the fact is it is not allowed.

Okay. Are are you aware of any efforts made by subculture to work with the city to get a list of what they can do in that facility? It's a yes or no, ma'am.

Can you repeat that? I'm sorry.

Can you you that aware of any efforts made by the owners of of subculture to work with the city to get a list of things they can do in that facility?

I know that I have every time I've been there, I go, you have need to come into the city and apply for approvals. It's taken a long time, so the effort on their part has been minimum.

Okay. No further questions.

At this time, the city would like to call Ms. Amy Alvarez. Could you please state your name your position? I'm sorry.

With the city. Alright. Assistant development services director.

And are you familiar with the property located at 302 North East 6th Avenue Subculture? Yes. And I believe and and as part of your duties and your responsibilities and your position, are are you familiarized with different approvals at different properties or assist with the approval process? Yes. Okay. And are you aware specifically what the approval as far as use is for subculture? A restaurant. Oh, so it's it's listed as a restaurant? Mhmm. So it's not listed as any type of musical area?

No. Okay. And specifically, we we talked earlier about a letter from the city manager regarding subculture and these special events. Correct? Correct. Is this the open mic night or any you know, is that within the customary usual activities associated with this property?

It's not a customary or usual activity associated with a restaurant.

Right. I just described some type of grab and go or or coffee shop restaurant. It's it's For the approval. Been approved as a restaurant. Alright. Thank you.

Mister Fitzgerald?

It is primarily, ma'am, a a a coffee house. Correct?

Our code does not distinguish between the two.

Okay. Have you ever you just said in the last hearing you have been there. Correct?

I've been there one time when city staff had a meeting with the business owner.

Okay. And you you you saw what goes on in the facility. Correct?

There were people there. Yes. Okay.

And it's primarily a coffee house?

In the middle of the day, it was.

Yes. Okay.

And

did you see anyone playing any board games?

I was not paying attention to anybody else other than our city staff meeting.

Did you see any board games?

I'm gonna object to relevance for we don't even have context for when this meeting was, what she was there for, and it's definitely not she's definitely not there for the the special event that we're discussing here for for the the violation. Violation.

I I I think that's a fair objection but I I'll, you know, I'll give you some leeway. I mean, you saw something, you can say you saw it.

I did not notice board games.

I have no further questions.

Does he have any more witnesses?

Mister Fitzgerald,

I call mister Mayo. Please state your name, sir.

Rodney Mayo.

And and you're the owner of the facilities. Correct?

Yes. Subculture Coffee.

I'm I'm gonna show you. I'm gonna show you what will be marked as exhibit one and ask you to identify identify it it for for the the record. Record.

It is a certificate of use And was it application.

Was it approved by the city of Delray?

I was given somebody called me from zoning and said your application is ready and approved. I went to the city. A very nice Indian gentleman came out from behind the counter, handed me a package, shook my hand, apologized for the in all the trouble that we've been having, and said, you are approved. You can go over to now get your BTR license, which we

did. Okay. And

When was this?

Gonna I'm get to that. What what is the date of this, sir?

There's two received stamps. There's a stamp of 01/01/2025 and then a stamp of 02/06/2025. And I was in contact with Amy, and Amy was the one that said, right. Everything you wanna do on this application, submit it, and I will help you get it through the system. So when somebody says that I you know, we didn't act immediately, this is probably within a couple weeks. This is January. We immediately filed a new application. And if you notice, the life safety that was submitted with us shows a stage. I have six emails back from the city that all show a stage. Mysteriously, that disappeared.

I'm I'm gonna read what the detailed description of the business is. It says, coffee shop with food, art, music, community, cultural gathering place with weekly entertainment, including including chess, chess, live live art art painting, painting, poetry, poetry, open open mic, mic, karaoke, latte art, coffee, cupping classes, guest trainings, and classes, and updating services. Was that what you submitted to the city of Delray?

Yes. I submitted one first and showed it to Amy, and she said, is that everything? And I said, do you really want me to list chess? And she said, yes. List every single thing. Who is Amy? Right here.

Okay. The the lady who just testified.

Correct? And Very nice, by the way, and but was willing to help me get through the process and said, I will help you get through this process.

And has it been your belief that these items listed were permitted uses?

We were when this was approved, yes. So this took a while. It was I kept following up with emails. I said, what's up? What's the status? Finally, somebody called me and said it's ready to pick up. Okay. But that was several months after this.

And since this time, have you tried to work with the city as to what you can do in that facility without getting a code violation? Yes.

It got so confusing asking them, just tell me, we want to abide by the rules. Just tell me I scoured the code. There is absolutely nothing in the code that says a restaurant cannot do these activities. There's eight at least eight of the restaurants in the city that do all these activities and have been doing it for twenty years. I keep mentioning data. We've been in business for twenty five years.

We've been doing

I'm gonna object to relevance.

Mister mister chairman?

I

think he was going to say he's he's been in the city for twenty five years and is a good citizen, and he's trying to work with with Delray. I know this is broken record because we were here recently and you heard similar things, but I I need to make a record.

Alright. Go ahead.

Like I said, we've I my experience for twenty five years at DATA, we've done live bands on Friday and Saturday. DJ is open mic. We actually, our team came in second in the nationals in a poetry competition that we held for ten years. So, of course, my presumption is when I open another with the exact same license, people get confused thinking that there's a separate license for a coffee shop. We're not our license is a restaurant, which is the same as Dada, which is the same as many other so called restaurants that don't serve food that operate as nightclubs in the city. Logically, I see this. I walk down Atlantic Avenue. I see the chaos there. I go, do they have a special license? And they say, no.

It's a restaurant, same as yours. No difference. Just my eyes say, okay. They're doing it. Why can't I do it? So but what I did, because there was so much confusion, is I printed out a list of 18, can I do this? Can I do this? Can I do this? I showed it to every commissioner except for the mayor. I showed it to all nine department heads. Every one of them said, great. This is gonna eliminate confusion. I go, this is gonna eliminate confusion for me. Just give it back to me. That was four months ago.

Pushed. I go, just check it off. And even at the bottom of it, it says, whatever you check off, we will do. Nobody has bothered to just give me any information and say, you can't give me it. To me, we stopped chess night just because, you know, I don't think anyone could say you can't have seven people come to a chess club, but we just eliminate it all because

we don't we got better things to do.

We're just stuck in this quagmire, and I don't know what to do. I just need answers from the city, and they will not give nobody will step up to the plate and say, out of my 14 things, this is what you can do, this is what you can't do. Even if they Why not just if they check no on all of I

mean, I I apologize for whatever, but why not just apply for the permit?

We did. This is it. This is it. And this is the permit we did in January, and it was handed to me

in approved. Special event permit?

No. No. No. No. First of all, oh, a special event for every we would do six a week, and they cost the special events that are not free. I was told we would not get approved for it. My concern is they're they're making us go through all this. We have all our licenses. We are all current. We could just say, forget this. Let's just not do anything, but that's not why I open up coffee shops. I open up to be community gathering places and have exactly that brought tear to my eyes. Seeing like a girl that never gets out to play, this is her one opportunity. And believe me, if we have people that are just like, when is it coming back? When is it coming back?

I I've scoured the code. I've asked the city. We've done everything. It is a misconception when anyone here says that we have been lackadaisical in this process. I will I've email upon emails that verify all this. I was given I wish we could have I'm sorry. The Indian guy in zoning's name. Rafi Ibrahim? Yes. Rafi. So nice, came out to me from behind the count Egyptian. Sorry. Came out from behind the counter, shook my hand, apologized that I had to go through all this. He said, you're good to go. Hands me that. Go right over five steps. Get your BTR. We go over to BTR. They're confused, and they say, you already have an active BTR. I said, yes.

I don't understand either, but I think this has something to do with live music. And she goes, oh, yeah. That's right. We have a new requirement. You need now two BTRs. So she went and she wrote on top of it the application. She said live music. She said, oh, you're prorated. You don't have to pay a full ear. You can pay the balance of the ear. Here's the amount. Gave it to her. Paid. We have a receipt for that amount. You ask the city. This does not exist. This, they say, does not show up in their portal. It's stamp received twice. They say it doesn't. The BTR, we go online.

The BTR says active till September, but on the left side, it says expired. So in the comments, it says expired, but our live music on the right side says active until September 2025. There's a lot of we've scoured the portal last night. There's a lot of things very weird stuff like that, but when they said we have applied for everything they've asked us for, they we have submitted that parking. We have gone back three times. It's not that it took thirty days. When you said, why didn't they respond to thirty days? We were right on it. We went back there, brought it to Jeff who is now

to stick to this case because otherwise we'll be making a lawyer.

So it's poetry? To me, I'm sorry. I'm a US citizen. As a poet, that requiring a special event, what is the fee? I'm not sure, but I think there's a $150 fee you have to get it applied for. We wanna do poetry once a week. We wanna do open mic once a week. We wanna do chess club. So is the city saying that we have to pay a 150, $200, and apply for this? And I was told they would not approve it. We would. If they want us to get 300 special event licenses, I mean, it's gonna be prohibitively expensive, but if they made some waiver that said, alright. It's $25 a license. We'll give you 300. Fine.

We'll do it.

It's just

it's just the misunderstanding of what we can do. Or just fill out that sheet and tell me we can't do live music, but we can do chess. We can't we can do open mic, but we can't have a band. Just tell tell us, and we'll do it.

That's it. Final question. Anything else you'd like to tell special master Wagner relating to this case, which had to do with open mic?

No. Just that it just a reasonable person can look at that video and its poetry. And like I said, I've been doing that. We still do that. I'm throwing myself under the bus, which I do all the time. We still do that at DADA. We still do poetry. We still do open mic. We still have DJs. We've been doing it for twenty five years for some reason, but we know the reason. It's our neighborhood is pushing this. And I I just don't understand if there's this is a citizen complaint why I can it's like, don't I have the right to ask questions about the citizen generated complaint to that person? It's like being accused and not being able to face your accuser.

Let me get to that. We have nothing further. Thank you, miss Mayo. Thank you.

I I just

have Nope. Hold on.

Hold on.

I have a couple of follow-up questions. Thank you. So, mister Mayo, you you showed us the first page of the zoning certificate of application a use application for 01/03/2024. And and within that description, you say there's coffee shop with food, art, music, etcetera. Correct? On the first page.

I detailed listed all the event the events that we were doing.

Yes. So those types of things are are your asks. Right? Like, what you desire to have occur. Correct?

Well, no. Originally, when we filled it out, our original application five years ago, that was accepted.

I'm talking about this specific application though. That's what you want it to

do? Yes.

Okay. Okay. And on the second page of the application, that's where staff, after they review the application, actually gives you the approvals. Correct? Do you have the second page of the application? Just let me show

his counsel quickly.

Okay. So

in this particular case or applications shall I say Mhmm. You were only approved for a restaurant of 45 seats stating that an alcohol license had to be used and it shall meet all the bona fide restaurant definition as defined and described in the city's LDR appendix a. Correct? Yes. Alright. So you weren't approved for all of these things that you you asked for?

No. I believe but there is no code that says a restaurant. You have a restaurant right now that has a $20 covered charge about a thousand

relevance and

You know, we have to stick to this case.

Okay. There's just as a business person, seeing what else I made the logical conclusion that there is more allowed in a restaurant use because there's no such thing as a you don't have a code or a permit for a live music venue. You do not have a code or permit for a cultural gathering place. Those don't exist. You have you don't even have one for coffee shop.

Okay. I think

it's restaurant only. That's the only option.

Okay. Correct.

So what I just So

and I believe you also stated that you've been trying to work for a city with the city, and indeed the city did at least have some type of on-site meeting with you. I think miss miss Alvarez stated that she was there. That was back on, I believe, May 6. Correct?

Nine every department head, including fire and police, were there.

That was on May 6. Code. Yes. And and in that meeting, isn't it correct that staff followed back up with you and asked you to provide your detailed description and advised you that once they review your descriptions, that you would have to proceed with an amended CCU, conditional use, or any other special events license. Correct?

Incorrect. I had already no. I had already submitted it. Okay. It's kind of a mute point. If I submitted it and you're saying it was denied, why might why would I bother submitting it again?

No. My question was, staff advised you that on email.

No. Incorrect.

Okay. No. They not. I'm showing you

They did not advise you.

Your email, rodney.subculture@gmail.com?

Yes. Okay. Yes. Yes. Okay. Correct. The only issue was occupancy and life safety. Okay.

May I have the specs?

This was still this is still active in your system.

Oh, may I

have specs?

It it doesn't show, but this is still active in your system.

I just have a license exhibit six, maybe, for this case. And this this is Berkeley today?

Yeah. The only issue is updating a life safety.

Question. Just just before before we before we go. Mister Fitzgerald, do you object to this, this letter into evidence?

I do not. Alright.

Just give me one second to read it before you keep going.

Thank you. Okay. Go ahead. Okay. Today, you haven't applied for any type of conditional use for what you described as having the musical performances or, I think you said, open monthly, whatever you said you wanted to. Correct?

No. We have, and it's in the system. This was approved, and we have a BTR that was accepted for live music.

But you don't have a BTR that allows you to have any use outside of a restaurant.

No. You're not correct. We applied for live music. She wrote the prorated amount. She accepted our money. That is in your system.

I just wanna be clear. There's what you want and there's what was approved. Correct?

Well, when you No.

I'm asking you. You understand that there's Okay.

But when somebody takes your money and says, we have it, it's that is all we can do. We can submit it to the city. If they do not respond to that, which they did not, what are we supposed to do? We did exactly what you asked. We filled it out. I submitted live music. They took our money. We keep following up. Nobody answers it. Maybe how what are we supposed to do to that?

Let let me rephrase the question. You do not have any type of approved use for anything outside of a restaurant, correct, on a ZCU?

There there is only one rest there is no other approval. In your system, it's a restaurant. There's no approval for a nightclub or live music. That's what trying say. Doesn't exist. But you to obtain something that doesn't exist in your

city.

Right. But you don't have any type of conditional use from the city, correct, for this?

What is it? I don't know what a conditional

use A use on the property.

I never it's the first time I'm hearing this. I've never heard that I need a conditional use. I've heard that I need to reapply for my CZU. That's it. And apply for a BTR live music, which was accepted, paid for, which you guys can't find in your system. But we have it stamped saying receive.

Okay. We can refer to the email as to what the city advised you that is in evidence.

Life Okay. Life safety. That's it.

One moment. You didn't apply for any type of special event permit for this event on June 7, did you?

No. I would not think it

was necessary. Nothing further.

Mister I have nothing further.

Are you all here for the city to argue? So

we've we've heard testimony and evidence that the city received the complaint on June 4. The city also sent a follow-up letter on June 6 to miss mister Mayo explicitly reiterating that, you know, these type of events are unpermitted. We heard testimony from mister Mayo himself that he didn't apply for any type of special events permit. We have the zoning certificate of use application specifically indicating that this is for a restaurant use. I mean, I know we've heard a lot, but in the simplest put, we have a video and testimony of a live musical performance, which is outside of the normal use of this property.

And if you take a look at the special events policy that we have here in the city, special events shall include, but are not limited to festivals, fundraisers, exhibit exhibitions, musical performances, and then, explicitly, another one of the criteria is unlike the customary and unusual activities generally associated with the property. So we heard lots of testimony regarding what occurred, when it occurred, what the respondent was advised of before he even went forward with the event. So I just think that this is a blatant violation of the city's special events policy and that he should be found in violation. Respondent.

Just to make my record, and I know what's gonna happen because you rejected him last time, this code violation on its face is facially confirmed, does not comply. It states in it that it was issued pursuant to chapter one sixty two. It does not comply with section one sixty two point two one subsection seven, eight, and nine, which is required information that must occur. It is section three d seven, eight, and nine, the procedure for the person to follow in order to pay the civil penalty or interest or contest the citation, applicable civil penalty if the person elects to contest the citation, and applicable civil penalty if the person elects not to contest the citation. You denied that last time.

This one has the same infirmities. It also doesn't it doesn't comply with the city of Delray Beach's own operating guideline manuals, specifically four c. The notice shall advise of all applicable fines as set forth in two d. It goes on. The notice shall also explain that the alleged violator may be liable for reasonable cost for the administrative hearing.

Again, that's missing. So the first argument is facially this is confirmed. Second argument is this is like ongoing. We were here last time. You heard most of the same arguments. We mister Mayo in the business needs some clarity. He thought he had approval for this stuff, still does. They keep citing him, and it's the same story. Daniel Rose reports a violation. They come out.

They cite mister they cite the business, and then we end up here. If the city would say can't do anything, that would be one outcome. If the city says, yeah, you can have a chess club. You can have a trivia night. You can have artists come and show their art. We can't get a clear answer. And then we come here, and I don't know. She hasn't asked for the fine yet. Last time, it was 7,500. You said 3,500 was reasonable.

Time before that it was 5,000. That got cut down to 2,500. This this mister Mayo needs some clarity. He wants to continue this business in Delray, but it's becoming almost prohibitive. It's a coffee shop.

It's a community gathering place. People are in and out of that shop from when it opens to midnight working, interacting. This is not an evil place. And if if ancillary services for a coffee house, not unheard of, but we can't get clarity from the city. So we would just ask that no fine be issued, issued, and we have to get the city to give us some clarity. Thank you.

So just a brief response. As far as the argument, so I wanted to make sure we're laying the proper record regarding the section that counsel cited regarding the due process and what was required. He cited the section or the statute that pertains to citations. This is a a notice of violation. So the general one sixty two notice opportunity to be heard.

Did you notice them? Did we provide them with the section that applies here, which we did. If you look at the notice of violation, the notice of irreversible and irreparable violation and notice of hearing is issued pursuant to chapter one sixty two Florida statutes, and then it goes on to talk about our chapter 37 of our code. So our position is that this was properly noticed. He had he's having the opportunity to be heard here.

They're they're here today present. And our position is that we presented a case to show that there was irreparable violation of the city's special event policy here. In regard to to, you know, whether or not the city is willing to work with it, the city has been and will continue to work with the respondent. You know, the city's concerned, you know, he brought up the prior violations, you know. I didn't say that in the first part, but, you know, at least one of them was for a a incident that occurred prior to this date.

And, you know, you can't say we want the city to work with us and continue to violate the code. Right? You know, the city is continuing to try to work with them and having meetings with the respondent. So the city's position is that you should find them in violation, the respondent. And the city is asking for mister Thompson has the fine amount.

City suggests a one time fine in the amount of $7,500 to be paid within thirty days and the authorization to lien the property if the fine is not paid within those thirty days.

Repeatedly. So my scope of authority here is is limited. I happen to like both poetry and and music, and I even like coffee shops. But the question to me is is a more direct one, which is whether or not the facts as I understand them constitute a violation of the code section as I read it. The city code section in this case is is pretty broad in what constitutes an event that requires a special event permit.

It's it's got a number of different things that trigger it, and I think the city's argument is probably correct in that the use of music and having musical events at a coffee shop probably does trigger at least section four of that code section, meaning that this probably is something that requires under the code of Delray Beach a special event permit. In fact, not probably. As it's plainly written, it seems to require such a thing. Now, as a practical matter, whether I agree with that or whether I think it should is really kind of irrelevant. It's whether it does or it does not.

I I don't get to rewrite the code. The city writes the code. The city council gets to decide what the requirements are. And as I read the requirements, this does this event, as presented by the city, does does trigger that section, meaning that it codes, you know, as I plainly read the language that a a special event permit is required. The evidence also presented to me is that a special event permit was not issued.

Then the question is, well, what's an appropriate fine? In this case, the city is asking me for $7,500. How do I weigh that? This is not the first time this has come up, so that weighs against it for a more significant fine. I also have testimony from the code officer that this wasn't a particularly disruptive or or or an event that caused the city resources to be used, so I have to weigh that as well as something that isn't that didn't cause a huge amount of problems.

However, this is not the first time that this has come up. You know, based on the testimony of the respondent, it's pretty clear, you know, what mister Mayo would like is that that he doesn't have to apply for a permit to do each of these events. Alright? I can understand why he would want that. And I can even understand why a city might permit that, but this city doesn't.

The city has a musical event where you're inviting people. That's not the normal use of a restaurant. That's gonna require a special event permit unless the city wants to change it. But but I do think that the city's ask here is probably high, but I will say that this is probably the last time if this comes up again because the respondent is clearly on notice that he can't have musical events without a permit. If it came back, I would probably have to to follow the city's recommendation and make a more significant fine.

But in this case, I will reduce the city's ask to $3,500 again for the last time and find that this is a violation. I'll give the respondent thirty days to pay or be subject to a lien on the property. That's my ruling.

Thank you, magistrate. Five, New.

Case number three, IR25000068. Owner's name, Bright Horizons Investment Corp and GoCo Incorporated. Registered agent is Samuel Cantor and Gove. Property address is 32 East Atlantic Avenue. It's presented by code officer Delinda

Witkowski.

Good afternoon, magistrate. My name is Delinda Witkowski. I'm a code officer for Clean and Safe. I'm here regarding an irreversible and irreparable violation, which is case 25000068 at Location 32 East Atlantic Avenue. A notice of hearing was issued on 07/15/2025 and mailed out both first class and certified on 07/18/2025.

It was mailed to the property owner and from property appraisal and two different registered agents from SunViz. The posting was conducted actually one day prior to the to the mailing, which was on 07/17/2025, who and this was hand delivered and signed by the executive chef Donald Pinza. On 07/14/2025, I received a complaint. Also along with that a video of a resident from Delray Beach confirming concerning an unauthorized vendor hauling trash away from the established known as

police the

complainant observed a white pickup truck, four door, with a trailer in the back with wooden sidings sidings on on the trailer. The vendor was removing trash bags from the dumpster, throwing them into the truck bin and as well as into the trailer. This is according to the city of Delray Beach. We have a contract with waste management for the disposal and removal of all garbage and trash. Therefore, because we are governed by the exclusive franchise agreement between Waste Management and the City, any external, unprohibited, or unapproved vendor removing trash bags and transporting garbage waste is not allowed.

Based on the complaint and as well as the video provided to us, this is a case that is in direct violation of code section 51.15 of the city of Delray Beach ordinance.

Okay. Thank you. Before before we go, I know you mentioned that waste management is the contracted garbage and trash disposal company, correct Correct. For the city. And there might be some instances if you take a look at the contract and maybe they're able to assign it out to another subcontractor. Yes. In this particular case, was this a company company that that had had been acting under the authority based on your investigation of waste management?

No. It was not.

Okay. Thank you. I'm now showing you sorry.

Go

back. What what has been previously marked as city's exhibit one for identification purposes. Do you recognize this?

Okay. This is actually the video from my complainant.

Okay. You you watched the video. Right? I did. We're gonna have the complainant testify. So we'll we'll just pause here and just have her I mean, You can come up. We just have some brief testimony from the complainant.

You just

need to sit here. Okay. Good afternoon. Thank you. Thank you for your patience and staying throughout these hearings, ma'am. Could you please state your full name for the record? Kimberly Mallon. And where do you live?

I live at 12 Southeast 1st Avenue, Del Delray Beach.

And are you familiar

with this property, Elisa Ventas, near 32 East Atlantic Avenue, Delray Beach? Yes. So are you you you live around that area?

Yes. Our parking lot is the same alley that backs up to Elizabeth is.