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Holmes Beach woman ordered to probation, house arrest

A 37-year-old Holmes Beach woman arrested twice in 2015 for driving under the influence of alcohol was sentenced to 12-months probation.

With a Sept. 26 probation order in two cases, 12th Circuit Judge Robert Farrance sentenced Michol Bugel to 30 days of house arrest, a six-month driver’s license suspension and portable alcohol monitor, contract and curfew, DUI school, a victim-impact panel and a 10-day vehicle impoundment.

Bugel also must complete 50 hours of public service work and attend counseling twice a month.

The sentences in the two cases run concurrently.

Bugel was arrested in October 2015 by Holmes Beach police in the 2500 block of Gulf Drive and in December by the Manatee County Sheriff’s Office in northwest Bradenton.

She was fined more than $4,470 in the cases.

Palmetto man gets probation

Probation was the sentence for a 23-year-old Palmetto man who pleaded no contest to driving under the influence in Holmes Beach.

Twelfth Circuit Judge Robert Farrance sentenced Nicholas Burns Easterling Oct. 6.

The 12-month probation includes requirements to complete a DUI course and a victim-impact panel, a six-month driver’s license suspension, a 10-day vehicle impoundment and 50 hours of public service. Half of the public service time can be substituted for payments of $10 per hour.

Holmes Beach police arrested Easterling in March after an officer reported observing him driving into a bicycle lane in the 5200 block of Gulf Drive.

In his DUI case, the judge ordered $2,241 in court costs and fines.

Easterling also was fined for failing to drive in a single lane, no proof of insurance, expired registration and open container.

Man sentenced to prison for stealing a truck

A 42-year-old man was sentenced to 30 months in the Florida Department of Corrections for stealing a truck from a Holmes Beach business and break-ins in Bradenton.

At a Nov. 15 sentencing, 12th Circuit Judge Susan Maulucci combined two cases against Damian C. Toto — a home trespass and vehicle burglary on March 1 and a May 2 grand theft of a motor vehicle belonging to Frank Agnelli of Agnelli Construction. Toto lived above the contractor’s office at 6000 Marina Drive, Holmes Beach.

On all charges, Toto changed his initial not-guilty pleas to guilty, waiving his rights to a trial and appeal.

A surveillance video led to Toto’s arrest and confession in the Holmes Beach case.

The March 1 trespass involved break-ins to a home in the 4300 block of 23rd Street in Bradenton and a vehicle parked outside the residence. He was arrested near the vehicle after a 911 caller reported the home invasion.

Motor vehicle theft and vehicle burglary convictions each carry a maximum penalty of five years in prison. A trespass to an occupied structure is punishable by a maximum of one year in jail.

In Toto’s sentencing, Maulucci ordered Toto to serve the two 30-month sentences concurrently with 344 days credit for time in jail after his arrests.

Holmes Beach says ‘No,’ enforces ban on outdoor refrigeration units

Holmes Beach commissioners shot down two restaurants’ requests for exterior walk-in coolers Nov. 15 after Commission Chair Judy Titsworth introduced an ordinance not even the building official knew about.

The Ugly Grouper, 5704 Marina Drive, appealed to commissioners during the work session to approve a site-plan change that would have allowed a walk-in cooler to replace the mobile kitchen on the restaurant’s site.

Bob Dwyer, representing the restaurant as the renovation project manager, said the 12-by-20 foot cooler would be attached to the building and provide food storage for a new kitchen.

Building official Jim McGuinness said he approved the walk-in cooler as an addition to renovations already taking place at the restaurant, including electrical work and construction of a commercial kitchen and U.S. Americans with Disabilities Act-compliant restrooms.

“It’s a real, serious restaurant, not a sandwich shop run out of a roach coach,” McGuinness said. He added that he would like the power to make small site-plan changes, such as walk-in cooler additions part of his administrative review, to be approved without commission input.

Commissioners rejected the idea foregoing their review and granting McGuinness more approval powers.

As a point, Titsworth quoted a supplementary regulation in the city’s code of ordinances, which states “all areas for storage and preparation and in which patrons of the restaurant consume food or beverages shall be wholly contained within the permanent exterior walls and under the permanent roof of the building in which the restaurant is located.”

City planner Bill Brisson said no special exception or variance exists to circumvent the regulation. “You’d have to change the code,” he said.

Dwyer said the cooler unit Ugly Grouper owners Scott Roland and Mike Ross purchased features a stucco-like exterior with its own roof. “It’ll blend right in with the existing building,” he said.

Commissioners, however, weren’t convinced.

After much discussion, commissioners agreed to go forward with the site-plan review if Dwyer could present them with an amended plan at the December meeting, making the cooler a small addition within the walls and roof of the primary structure.

Commissioners also denied Dwyer’s request to have the cooler delivered and stored onsite until the outcome of the site plan review is determined.

“You’re assuming you can build around it,” Mayor Bob Johnson said.

City attorney Patricia Petruff cautioned commissioners about being too lenient in seeking to assist local businesses by bending the rules for them. “This is how city commissions get into trouble,” she said. “You don’t know what other hardship issues you might create.”

Another applicant seeking approval for an outdoor refrigeration unit, the new Dunkin’ Donuts-Baskin Robbins store under construction at the Anna Maria Island Centre, 3302 E. Bay Drive, also was turned away by commissioners.

Todd Mathis of Benderson Development, owner of the plaza, agreed to provide the city with an amended site plan to enclose the cooler within the roof and walls of the primary building as an addition to the existing structure prior to the December meeting.

Mathis pointed out the existence of several unenclosed walk-in coolers behind the plaza. McGuinness said he did not know if the coolers were permitted, were placed illegally or were in place before the regulation banning them was adopted.

Holmes Beach Police Chief Bill Tokajer said code enforcement would be looking into the situation and report back to commissioners.

Commissioners next meet at 6 p.m. Tuesday, Dec. 13, for a meeting followed by a work session at city hall, 5801 Marina Drive.

Tree house owners cling to hope, seek after-fact city permit

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The tree house stands above the beach landscaping at 103 129th St., Holmes Beach. Islander Photo: Kathy Prucnell

The answer, my friend, is blowin’ in the wind.

Lynn Tran and husband, Richard Hazen, owners of a beachfront tree house in Holmes Beach, might see their five-year battle with the city in the lyrics of Nobel in Literature winner Bob Dylan.

Tran applied Sept. 30 for an after-the-fact accessory structure permit.

“We’d like a resolution, that’s for sure,” Holmes Beach building official Jim McGuinness said Oct. 14, adding the permit is in review.

At press time Nov. 18, the city had not responded to the application.

Tran’s application for a city permit is a first for the owners, who’ve taken a circuitous route over the years through city code enforcement, the state’s environmental regulator, the courts and now back to the city.

At each juncture, the city has prevailed.

Tran’s philosophy after the long process without a win: “If it’s meant to be here, somehow things will work out.”

 

Background

In 2011, Tran and Hazen built the elevated two-level structure in an Australian pine, with removable windows — no plumbing, but with solar electric paneling — at 103 29th St., where they live and operate a four-unit resort, Angelinos Sea Lodge.

Tran and Hazen read, relax and exercise in the tree house.

Before starting its construction, they inquired about a permit. According to Tran and Hazen, the then-building inspector advised no permit was needed. They did not submit plans or request a review of their plans.

In November 2011, the city received an anonymous complaint about a tree house under construction.

Code enforcement issued a violation and referred the matter to the Florida Department of Environmental Protection, which, in January 2014, denied an after-the-fact permit. The city refused to submit a no-objection letter to the DEP.

Both city and state permits are required for coastal construction.

Until Tran’s permit application, the city has been focused on the tree house code violations.

In July 2013, the code enforcement board ordered the owners to remove the structure or correct the violations — including a 20-foot encroachment in a 50-foot city setback — and pay $4,241 in costs plus fines.

Tran and Hazen, with Sarasota attorney David Levin of Icard Merrill, appealed the order to the 12th Circuit Court, and in 2014, Judge Janette Dunnigan upheld the code board order, finding it unreasonable for the owners to rely on a city inspector’s nonspecific verbal OK.

Levin next took the code board case to the 2nd District Court of Appeal, which declined to review the case in 2015.

In May 2016, the city magistrate reviewed the case and imposed a fine against Tran and Hazen of $50 daily from July 22, 2015 — the day the 2nd DCA denied the appeal. To date, the fine has climbed to $24,500.

The owners initially noticed an appeal of the magistrate decision, but 12th Circuit Judge Gilbert A. Smith dismissed the case Oct. 19 for failure to file an initial brief — an appeal Tran says they have abandoned.

The attorney handling all tree house cases for the city is Jim Dye of Dye, Deitrich, Petruff & St. Paul of Bradenton, the same firm as city attorney Patty Petruff.

In August 2013, Dye filed suit to stop an effort to grandfather the tree house by a citywide vote.

After Tran and Hazen collected voter signatures and presented the city clerk with the petitions, Dye contended the ballot question amounted to a “development order” prohibited by a 2013 state statute.

Twelfth Circuit Judge Don T. Hall agreed with Dye in its Aug. 15 decision.

That decision is currently on appeal in the 2nd DCA and Levin has until Nov. 30 to file an initial brief.

 

City permit bid

In the September permit request to the city, Tran submitted documents on materials used, including windows on the first deck, construction checklists, a signed owner/builder disclosure, a coastal engineering study, structural engineering plans, construction photos and a December 2011 survey.

Plans from R&S Professional Engineering of Ellenton dated Aug. 28 note the tree house conformance to the Florida Building Code, including pilings, railings and corrosive resistant components.

Filed with the permit are plans stamped by Sego & Sego Structural Engineering and Interior Design of Anna Maria, including as-built sketches drawn by Hazen.

A list of materials includes:

  • Two 12-inch diameter pressure-treated wood posts embedded 6 feet below grade.
  • Deck framing 2-by-6-foot of pressure-treated southern yellow pine.
  • Two deck support beams.
  • Galvanized or stainless steel hardware.
  • Railings with 3/8-inch tempered glass and removal clips.
  • Flame-resistant thatch panels.

Tran also submitted a 2012 letter from Erickson Consulting Engineers of Sarasota to the DEP, concluding the tree house was “a minor activity” under state coastal construction rules.

In her Sept. 30 letter to McGuinness, Tran described the project as “an open structure that allows rain water to drip through the tree branches through the deck to the sandy soil below.”

In the permit application, Tran estimates the project cost $28,000.

Tran said “that’s just for the structure,” not including engineers, surveys and other related costs. According to the Dunnigan decision, the owners estimated the cost at $30,000-$50,000.

Attorney’s fees for Tran-Hazen have been estimated at $10,000-$20,000 per proceeding.

The city reports the Dye firm was paid $76,935.94 as of Nov. 7. The city paid $3,276 to magistrate Kelly Fernandez.

Manatee County stops, restarts Long Bar Pointe developers

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Arlene Dukanauskas looks over the Legends Bay subdivision, where Cargor Partners VIII-Long Bar Pointe cleared a swath of a 1.19 acre Manatee County conservation easement without a permit. Islander Photo: Kathy Prucnell

A Manatee County stop-work order on Cargor Partners VIII-Long Bar Pointe was lifted two days after it was issued.

“They passed their inspection this morning so work can continue,” John Barnott, director of Manatee County building and development, said in a Nov. 18 email.

“They are still under notice of violation for the encroachment into the conservation easement,” he added, saying a reconstruction plan is being prepared.

In addition to a Nov. 16 stop-work order, the county cited the development company headed by Carlos Beruff and Larry Lieberman for violating the county’s land-development code — bulldozing into wetland buffers and disturbing earth, trees, shrubs and plants in a conservation easement and removing at least two trees without approval.

The developers of a 529-acre proposed Aqua By the Bay mixed-use subdivision, about 5 miles southeast of Cortez on Sarasota Bay, began excavating three ponds on 19.1 acres in mid-October work under a Southwest Florida Water Management District “permanent farming” exemption.

Timothy A. Knowles, registered agent for the developers, acknowledged receipt of the Nov. 16 notices of violation, but did not respond by press time for The Islander to a request for comment.

The county’s conservation easement is in the Legends Bay subdivision, adjacent to the Cargor Partners VIII-Long Bar Pointe property off Conquistador Parkway in Bradenton.

An Oct. 31 survey of the area shows the encroachment — clearing, grubbing and earth moving — on 8,962 square feet within the 1.19-acre conservation easement.

The easement, which prohibits excavation without county consent, has been held by Manatee County since June 2007, according to county property records.

In the stop-work order, Barnott told the developer to cease work until approvals and authorizations are obtained.

He also stated that LDC erosion plan requirements were skirted and, because “the Florida Fish and Wildlife Conservation Commission advised the county that a pair of bald eagles have initiated nest building activities,” coordination with the FWC was required before construction commences.

Barnott did not respond by The Islander press time about how the developer satisfied the order.

While the county is still reviewing Aqua by the Bay subdivision, on Aug. 30, Swiftmud approved excavation for three agricultural ponds of 2.7 acres, 4 acres and 12.4 acres, with spoil to be left on the site.

Swiftmud granted a permanent farming exemption, but excavation was to come “no closer than 50 feet from wetlands,” according to Swiftmud public information officer Susanna Martinez Tarokh.

Asked if the land clearing under the agricultural exemption can be used for a subdivision, Martinez Tarokh answered in a Nov. 18 email:

“The agricultural exemption approves the excavation of three ponds and does not include any other construction activities.”

“Any clearing related to this work would be within the pond footprint,” she added.

Neighboring homeowners in the Legend Bay observed the unauthorized encroachment Oct. 17-18.

The encroachment violates two sections of the land development code that protect trees and wetland buffers. To correct the violation, the developers must “initiate contact with the department director for the replacement of trees of comparable characteristics and restoration of wetland buffer to pre-alteration condition, to be determined by the director,” according to the county notice.

Arlene Dukanauskas said the destruction was reported to the FWC, then-County Commissioner John Chappie, code enforcement and the Manatee County Sheriff’s Office.

She said mature pine trees, palms and vegetation for birds, including bald eagles, were carelessly destroyed.

“We want full restitution,” Dukanauskas added.

Manatee County seeks medical marijuana moratorium

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Changes are coming to Florida after the Nov. 8 election and Manatee County is considering additional regulations on the growing and dispensing of medical marijuana.

Amendment 2, a state constitutional amendment to expand the use of medical marijuana, was approved by 71 percent of statewide voters.

The amendment “allows medical use of marijuana for individuals with debilitating medical conditions as determined by a licensed Florida physician” and “allows caregivers to assist patients’ medical use of marijuana.” Patients and caregivers approved to use or assist in the use of medical marijuana will be issued identification cards by the Florida Department of Health, which also will regulate sellers of medical marijuana.

Patients with medical marijuana cards will be allowed to keep three small plants for personal use at home.

The Manatee County Board of Commissioners opted Oct. 25 to begin a 180-day moratorium to regulate “the acceptance and processing of new applications for the establishment of medical marijuana processing and dispensing facilities in Manatee County.”

The moratorium would effectively stop medical marijuana dispensaries and grow houses from opening in the county for six months while the county considers legislation regarding medical marijuana.

County commissioners scheduled two public hearings on the issue, the first at 9 a.m. Tuesday, Nov. 15, after press time for The Islander.

The moratorium would affect unincorporated Manatee County, not municipalities.

In Holmes Beach, commissioners agreed Oct. 25 to delay considering a moratorium after the vote. Now that the amendment has passed, Holmes Beach Police Chief Bill Tokajer asked commissioners to revisit the issue.

“It’s scheduled for an upcoming work session,” Tokajer said.

Tokajer supports banning medical marijuana grow houses and dispensaries in the city.

“I think we should just say ‘No’,” Tokajer said during the October meeting.

Commissioners will revisit the issue during a December work session.

In Anna Maria, commissioners adopted an ordinance Sept. 8 banning the growing, cultivation, processing and sale of marijuana.

Bradenton Beach commissioners agreed Nov. 17 to have city attorney Ricinda Perry draft a six-month moratorium on medical marijuana sales, growing and cultivation for discussion at a December meeting.

Amendment 2 will go into effect in January 2017.

Bradenton man faces charges

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Braaten

A man faces a DUI charge and several other charges after an Oct. 29 traffic stop for speeding in Holmes Beach.

Holmes Beach Police Officer Alan Bores was conducting stationary radar in the 5200 block of Gulf Drive when Andrew Braaten was clocked going 38 mph in a 25-mph zone. Bores reported following the motorist, who turned on Marina Drive and into the Island Shopping Center parking lot after Bores signaled him to stop.

The officer observed the odor of alcohol and slurred speech when he requested registration and proof of insurance from the driver.

Braaten said he had been to a party in Cortez and consumed three beers.

After difficulty with field sobriety tests conducted at the stop, Braaten was transported to the HBPD, where he refused a breath sample request.

He was read his Miranda rights and transported to the Manatee County jail. He faces charges of DUI, refusal to submit to BAL, speeding, failure to display registration and no proof of insurance.

Bail was set at $500 and Braaten was released Oct. 29.

Cortez woman charged with DUI

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Pasik

A woman faces a charge of with driving under the influence Oct. 30 after a traffic stop on Manatee Avenue at Gulf Drive for a burned-out taillight.

The passenger-side taillight was out on a vehicle driven by Shannon Pasik, 25, catching the attention of Holmes Beach Police Officer Alan Bores. While advising Pasik of the light being out, Bores observed the odor of alcohol and slurred speech, according to a police report.

Pasik stated she had consumed “nothing” when initially questioned and that she was picking up a friend from D.Coy Ducks Bar & Grill.

As she exited the vehicle, Pasik lost her balance and fell into the side of the car, according to Bores report. She then stated she consumed a “half beer.”

Field sobriety tests were conducted and Pasik was taken into custody. A breath sample was taken at MCSO.

Pasik posted a $500 bond and was released on Oct. 30.

Red tide lingers

A bloom of the red tide organism, Karenia brevis, lingers in Southwest Florida, according to surveys reported Nov. 17.

        Karenia brevis was observed in very low to high concentrations in 17 samples collected from Manatee County.

  1. brevis also was observed in Pinellas, Sarasota, Charlotte, Lee, Collier counties.

Fish kills affecting were reported offshore of Lee, Charlotte and Sarasota counties and respiratory irritation was reported in Sarasota and Lee counties.

The next red tide update was expected Nov. 21, as The Islander went to press.

For more information about red tide in Florida, go to myfwc.com/redtidestatus.