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HomeMy WebLinkAbout04-09-1998 VC REG-M• • • Present: ROLL CALL MINUTES OF REGULAR SESSION OF THE VILLAGE COUNCIL OF NORTH PALM BEACH, FLORIDA HELD THURSDAY, APRIL 9, 1998 David B. Norris, Mayor Charles O'Meilia, Vice Mayor Edward M. Eissey, President Pro Tem Gail H. Vastola, Councilman Joseph A. Tringali, Councilman Dennis W. Kelly, Village Manager George W. Baldwin, Village Attorney Kathleen F. Kelly, Village Clerk Mayor Norris called the meeting to order at 7:30 p.m. All members of Council were present. All members of staff were present. INVOCATION AND PLEDGE OF ALLEGIANCE Vice Mayor O'Meilia gave the invocation, and President Pro Tem Eissey led the public in the Pledge of Allegiance to the Flag. APPROVAL OF MINUTES The following Minutes were approved as written: Minutes of Regular Session held 3/26/98 REPORT OF THE MAYOR On behalf of the Village Council, Mayor Norris presented a plaque in honor of President Pro Tem and Councilman Larry Kelley, who served on the Village Council from 1994 to 1998. Mayor Norris reported on the Northlake Blvd. Task Force meeting on April 8, 1998, wherein the Task Force decided to send a letter to the developer confirming that a 90-day period will be given, beginning March 1, 1998, for development progress, and if adequate progress is not being made, the developer will be required to clean up the site and provide landscaping. The Task Force is asking the Mayors of Lake Park and North Palm Beach to sign the letter. The Village Council, by consensus, approved the letter, under the Mayor's signature. • • • Minutes of Regular Session Held Thursday, April 9, 1998 A Special Session was scheduled for interviewing of Board applicants on Tuesday, April 28, 1998 at 7:00 p.m. in the Council Chambers. Appointments will be made at that meeting, when interviews are completed. Workshop Session Item 4.d. regarding support of the Homeowners Protection Act was moved forward to the Regular Session agenda as Item 12.a. RECEIPT OF MINUTES The following Minutes were received for file: Minutes of Code Enforcement Board meeting held 3/2/98 Minutes of Country Club Administrative Board meeting held 3/16/98 REPORTS OF SPECIAL COMMITTEES AND RECOMMENDATIONS Councilman Vastola moved to receive for file the recommendation of the Planning Commission in their review of recreational, boating and camping equipment code revisions regarding screening requirements that the Village Council "delete screening requirement from street and allow staff to investigate maximum size and length". Vice Mayor O'Meilia seconded the motion, and all present voted aye. VILLAGE MANAGER'S REPORT The Village Manager asked Council approval in naming the new recreation building at Anchorage Park as had been recommended by the Recreation Advisory Board. President Pro Tem Eissey moved to name the building the "Anchorage Park Activities Building". Councilman Vastola seconded the motion, and all present voted aye. EX PARTE COMMUNICATIONS Mayor Norris stated that he had discussed the screening of recreational vehicles with Tillie Gardner on April 9, 1998. RECESS FOR ATTORNEY/CLIENT SESSION Mayor Norris announced at this time that the Village Council would recess for the purpose of holding an Attorney/Client Session at 8:00 p.m. for approximately one hour to discuss 2 • • • Minutes of Regular Session Held Thursday, April 9, 1998 the lawsuit of the Village v. Carmona (Crystal's). Mayor Norris announced all persons who would be in attendance at the Session. Mayor Norris recessed the Regular Session at 8:00 p.m. The Regular Session reconvened at 9:08 p.m. BILL 915 - BUDGET APPROPRIATION FOR PUBLIC SAFETY DEPARTMENT REORGANIZATION STUDY - PLACED ON SECOND READING AND ENACTED AS ORD. 10-98 Vice Mayor O'Meilia moved that Bill 915 entitled: AN ORDINANCE OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA, AMENDING THE NORTH PALM BEACH GENERAL FUND BUDGET FOR THE FISCAL YEAR 1997-98 TO APPROPRIATE FUNDS IN THE AMOUNT OF $10,000 FOR POLICE REORGANIZATION STUDY be placed on second reading and read by title alone. Councilman Vastola seconded the motion, and all present voted aye. Vice Mayor O'Meilia moved that Bill 915 be enacted as Ordinance 10-98. Councilman Vastola seconded the motion, and all present voted aye. BILL 916 - BUDGET APPROPRIATION FOR ADELPHIA CABLE FRANCHISE FEE AUDIT - PLACED ON SECOND READING AND ENACTED AS ORD. 11-98 Vice Mayor O'Meilia moved that Bill 916 entitled: AN ORDINANCE OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA, AMENDING THE NORTH PALM BEACH GENERAL FUND BUDGET FOR THE FISCAL YEAR 1997-98 TO APPROPRIATE FUNDS IN THE AMOUNT OF $14,500 FOR PERFORMANCE AUDIT OF ADELPHIA CABLE FRANCHISE FEE FOR FY 1996-97 be placed on second reading and read by title alone. President Pro Tem Eissey seconded the motion, and all present voted aye. Vice Mayor O'Meilia moved that Bill 916 be enacted as Ordinance 11-98. President Pro Tem Eissey seconded the motion, and all present voted aye. 3 Minutes of Regular Session Held Thursday, April 9, 1998 BILL 917 - AMENDING CODE TO REGULATE ANCHORING OF BOATS - PLACED ON FIRST READING Vice Mayor O'Meilia moved that Bill 917 be taken from the table. Councilman Tringali seconded the motion, and all present voted aye. Vice Mayor O'Meilia moved that Bill 917 entitled: AN ORDINANCE OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA, AMENDING SECTION 5-1, DEFINITIONS, OF ARTICLE I OF CHAPTER 5, BOATS, DOCKS AND WATERWAYS; ADDING SECTION 5-17 AND SUBSEQUENT SECTIONS TO ARTICLE I OF CHAPTER 5 OF THE CODE OF ORDINANCES TO PROVIDE LIMITATIONS ON ANCHORING AND MOORING OF VESSELS ON WATERWAYS WITHIN THE VILLAGE; REQUIRING MOORING PERMITS; PROVIDING PROCEDURES FOR IMPOUNDMENT AND SALE OF VESSELS; PROVIDING FOR SEVERABILITY; PROVIDING FOR THE REPEAL OF ALL ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; AND, PROVIDING FOR AN EFFECTIVE DATE be placed on first reading and read by title alone. Councilman Vastola seconded the motion. After discussion of Vice Mayor O'Meilia's recommended changes as detailed in his memo dated 4/2/98, Councilman Vastola moved to amend Bill 917 by eliminating paragraph F. in Section 5-17 on Page 3, and to make the changes as proposed by Vice Mayor O'Meilia regarding amending the definition of private dock in Section 5-81 of the Code by adding pier, mooring buoy and floating anchor to the definition, and adding Section 12 to Section 5-85, which will allow a property owner to moor his boat by his bulkhead in Lake Worth. Vice Mayor O'Meilia seconded the motion to amend, and all present voted aye. Thereafter, the original motion, as amended, passed 5-0. RESOLUTION 17-98 ADOPTED - SUPPORTING HB3827 - HOMEOWNERS PROTECTION ACT Councilman Tringali moved that Resolution 17-98 entitled: 4 • • • Minutes of Regular Session Held Thursday, April 9, 1998 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA, URGING THE FLORIDA SENATE TO ENACT HB 3827, WHICH LEGISLATION KNOWN AS THE "HOMEOWNERS PROTECTION ACT" WOULD REDUCE HOMEOWNERS' INSURANCE RATES BY FIFTEEN PER CENT AND WOULD STABILIZE THE INSURANCE MARKET IN THE STATE OF FLORIDA; AND, PROVIDING FOR AN EFFECTIVE DATE be adopted. Vice Mayor O'Meilia seconded the motion, and all present voted aye. INFORMATION SYSTEMS MASTER PLAN ACCEPTED Vice Mayor O'Meilia moved to accept the Information Systems Master Plan, as prepared by Palm Beach Atlantic College -Applied Business Research Institute, dated February 1998. Councilman Tringali seconded the motion, and all present voted aye. ADJOURNMENT There being no further business to come before the Council, the meeting adjourned at 9:55 p.m. -Kathleen F. Kelly, CMC, Village Clerk 5 • • • THE PALM BEACH POST Published Daily and Sunday West Palm Beach, Palm Beach County, Florida PROOF OF PUBLICATION STATE OF FLORIDA COUNTY OF PALM BEACH Before the undersigned authority personalty appeared Chris Bull who on oath says that she is Classified Advertising Manager of The Palm Beach Post, a daily and Sunday newspaper published at West Palm Beach in Palm Beach County, Florida; that the attached copy of advertising, being a Notice in the matter of Onen Meeting in the --- Court, published in said newspaper in the issues of April 5. 1998. Affiant further says that the said The Post is a newspaper published at West Palm Beach, in said Palm Beach County, Florida, and that the said newspaper has heretofore been continuously published in said Palm Beach County, Florida, daily and Sunday and has been entered as second class mail matter at the post office in West Palm Beach, in said Palm Beach County, Florida, for a period of one year next preceding the first publication of the attached copy of advertisement; and affiant further says that she/he has neither paid nor promised any person, rum or corporation any discount rebate, commission or refund for the purpose of securing this advertisement for publication in the said newspaper. Sworn to and subscribed before this 6 day of April, A.D. 1998 Personally known XX or Produced Identification Type of Identification Produced v NO. 430803 VILLAGE OF NORTH PALM BEACH PUBLIC NOTICE THE CITIZENS AND PROPERTY OWNERS OF THE VILLAGE OF NORTH PALM BEACH AND ALL INTERESTED PERSONS ARE HEREBY ADVISED TO TAKE NOTICE THAT MAYOR DAVID 9. NORRIS, VICE -MAYOR CHARLES R. O'MEILIA, PRESH DENT PRO TEM EDWARD M. EISSEY, COUNCILMEN GAIL H. VASTOLA AND JOSEPH A. TRINGALL WILL CONVENE AN OPEN MEETING OF THE NORTH PALM BEACH VILLAGE COUNCIL ON THURSDAY, APRIL 9,1998 AT 7:30 PAL, AT WHICH TIME THE VILLAGE COUNCIL WILL ANNOUNCE ITS INTENTION TO MEET IN A PRIVATE ATTORNEY -CLIENT SESSION WITH VILLAGE MAN- AGER DENNIS W. KELLY, ITS VILLAGE ATTORNEY GEORGE W. BALDWIN, AND ITS LITIGA- TION ATTORNEYS THOMAS J. BAIRD AND MARK . HEN- DRICKS, TO DISCUSS PEND- ING LITIGATION STYLED VIL- LAGE OF NORTH PALM BEACH V. CARMONA. THIS ATTOR- NEY -CLIENT SESSION WILL BE HELD PURSUANT TO FLA. STAT. 288.011(8) ON APRIL 9, 1998, AT APPROXIMATELY 8:00 P.M., AT THE VILLAGE HALL, S01 U.S. HIGHWAY 1, NORTH PALM BEACH, FLORI- DA. THE PRIVATE ATTORNEY - CLIENT SESSION IS ANTICI- PATED TO LAST FOR ONE (1) HOUR. ALSO, BE ADVISED THAT AT THE CONCLUSION OF THIS ATTORNEY-CUENT SESSION AT APPROXIMATELY 9:00 P.M., OR AS SOON THEREAFTER AS POSSIBLE, THE VILLAGE COUNCIL WILL RECONVENE ITS PUBLIC MEETING TO DISCUSS ANY MATTERS WHICH REMAIN ON ITS AGENDA. Kathleen F. Kelly, CMC Village Clerk Publish: Palrn Beach Post Sunday, Aprll 5. 1998 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 VILLAGE OF NORTH PALM BEACH ATTORNEY/CLIENT SESSION Council Chambers Thursday, April 9, 1998 8:05 p.m. - 9:05 p.m. PRESENT: ORIGINAL MAYOR DAVID NORRIS VICE MAYOR CHARLES O'MEILIA PRESIDENT PRO TEM EDWARD EISSEY COUNCILMAN JOSEPH TRINGALI COUNCILWOMAN GAIL VASTOLA VILLAGE MANAGER DENNIS KELLY VILLAGE ATTORNEY GEORGE BALDWIN VILLAGE CLERK KATHLEEN KELLY SPECIAL VILLAGE ATTORNEY THOMAS J. BAIRD COURT REPORTER JANE PASTORE LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 2 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 1 PROCEEDINGS 2 - - - 3 MAYOR NORRIS: We are now in our 4 attorney/client session. Present is myself, 5 Mayor Norris, Vice Mayor O'Meilia, President Pro 6 Tem Eissey, Councilman Vastola, Councilman 7 Tringali, Village Attorney George Baldwin, 8 Village Manager Dennis Kelly, Special Village 9 Attorney Tom Baird. 10 And with that said, I will turn it over, 11 I guess to Mr. Baird. 12 MR. BAIRD: Thank you, Mayor. 13 I real briefly want to give you just the 14 background of where this case started and where 15 it has been and where it is now. 16 Prior to my engagement by the city, 17 Crystal's had been operating for approximately a 18 year to a year and a half as an adult 19 entertainment facility in the Village without 20 approval and illegally. 21 The first thing after filing the lawsuit 22 that we attempted to do was to obtain temporary 23 injunction. And at that hearing we did obtain 24 an injunction, but it was a limited injunction 25 related to building and fire code violations. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 3 1 The burden on one seeking temporary 2 injunction is very high or a great burden, and 3 4 5 6 7 8 9 you have to demonstrate, among other things, by clear and convincing evidence that you are entitled to the temporary relief that you are seeking. In our case Judge Cook held that although we had demonstrated building and fire code violations, we had not demonstrated zoning code 10 violations. And primarily he concluded this 11 12 13 14 because of the argument of counsel regarding the Renton case, which is a city in Washington and it's the leading supreme court case in this area. 15 In that case the court set a fairly bright 16 line test for when you have a valid 17 constitutional ordinance and when you don't. 18 And in that court case the court said if 19 five percent of your land area within your 20 village is available for adult entertainment, 21 you pass constitutional muster. 22 If you have less than five percent of the 23 land set aside that may be available for adult 24 entertainment, you do not. 25 In our case it was clear to Judge Cook, LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 4 1 who is very familiar with the Village, that 2 having one site available in the Village of 3 North Palm, given the surrounding land mass, 4 that it probably was not going to meet 5 constitutional muster. 6 In that respect and to some extent he did 7 the Village a favor by not deciding the case at 8 that time on the temporary injunction hearing 9 and by setting the balance of the case, that is 10 the zoning issue for trial. 11 Since that time I have made use of the 12 time we have between then and trial working with 13 the Division of Alcohol Beverages and Tobacco, 14 and filed three administrative complaints on 15 behalf of the Village against the Crystal's 16 establishment related to lewd entertainment 17 occurring within the facility. 18 The complaints led to eventually a consent 19 order entered by the state with Crystal's which 20 required Mr. Carmona, who is the operator/owner 21 of the establishment and the officer and 22 director, and I believe sole officer and 23 director of the Coe and Coe Enterprises 24 Corporation that runs and owns Crystal's -- the 25 order revoked Crystal's liquor license. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 5 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 However, it gave Crystal's 60 days to transfer 2 that license if and provided they transferred 3 that license to someone, not Carmona, and no 4 other officer and director of Coe and Coe that 5 would have an interest in the new business. 6 So they did transfer, that is Coe and Coe 7 did transfer that liquor license. They did so 8 by creating a new corporation called 421 9 Northlake Corporation. They transferred the 10 license in November of '97 and have continued to 11 operate the establishment as before. 12 What that did, though, was once the liquor 13 license was transferred and Carmona and Coe and 14 Coe got out of the business, we had a lawsuit 15 against Coe and Coe and Carmona. 16 So the pleadings at that time had to be 17 amended, so that we had the correct defendant; 18 otherwise, we didn't have standing to proceed 19 with our litigation. 20 We did amend the complaint, substituted 21 the 421 Corporation as the party defendant, and 22 on the eve of trial -- actually docket call for 23 trial, 421 filed a motion to continue the trial, 24 arguing that there had been no discovery done 25 with respect to 421 Corporation. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 6 1 2 3 And Judge Cook granted that motion and continued the trial. It now appears that a trial, if there is 4 to be one, would be on the June docket, the 5 6 7 8 9 10 11 court's June docket, which actually begins the end of May. The ordinance that the Village has adopted, I believe as adopted would be found unconstitutional by the court. The reason is that, as it has been testified to by Tom Hogart (phonetic) at the 12 preliminary injunction hearing, there is only 13 one site that's available within the Village for 14 adult entertainment. 15 The first defense or argument that was 16 researched and explored to determine whether we 17 might be able to prevail, irregardless of only 18 having one site, was to look at the availability 19 of other sites in proximity to the Village but 20 not within the Village. 21 And the argument would have been and still 22 can be made, but it won't be a successful one, 23 is that there are a number of opportunities for 24 one who wants to take advantage of them in West 25 Palm Beach or unincorporated Palm Beach County. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 7 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 The federal district courts have come down 2 with opinions in the last two years that have 3 clearly said, in Florida, that have clearly said 4 that's not an option. 5 And so trying to put on evidence in that 6 regard is not likely to be successful. It's not 7 likely to be even considered to be relevant by 8 the court. 9 So we are left with: Are there any other 10 sites in the Village other than the current site 11 location? 12 Which is really where Adult Video 13 Warehouse is. The two sites are within 2,000 14 feet of one another, which is not permitted by 15 your ordinance. But because they are located so 16 close to one another, you can only fit one in 17 that portion of the Northlake corridor there. 18 If they were not located so closely 19 together, it's possible that you could get two 20 establishments in there. 21 The important thing is in the court's test 22 on how they apply this, whether there are enough 23 alternative available sites is this: 24 There are two approaches that the federal 25 courts have taken. One approach is a per capita LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 8 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 approach, where they say the population of the 2 village is 12,000, there is one site, one site 3 per 12,000 is either enough or it's not enough. 4 The court cases in Florida, the most 5 recent case is a case out of the Southern 6 District, and I will get to that in a minute. 7 But the case that preceded it is out of the 8 Middle District of Florida, the City of St. 9 Petersburg. 10 And in that case the court held that one 11 site per 12,000 was not enough, was 12 unconstitutional. The court went on to review 13 the case law in that field in Florida, and 14 concluded that a range of one facility per two 15 thousand to seven thousand population fell 16 within constitutional parameters. 17 But if you were above one to seven 18 thousand, as St. Pete was, you were outside of 19 those parameters and your ordinance was 20 unconstitutional. 21 So the Village's position at this point is 22 one site, population of approximately 12,000. 23 To get into a constitutional arena here, at 24 least one more site would have to be available 25 within the Village, and probably two more, LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 9 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 depending on where they are located, would be 2 preferred. 3 The problem with that approach is that the 4 Southern District of Florida, which is the court 5 and the jurisdiction that we fall within in the 6 federal court system, has said that the 7 population or per capita approach is not the 8 correct or appropriate way. 9 They want to follow more closely the 10 Renton logic of looking at what percentage of 11 land is available within any given jurisdiction. 12 Nevertheless, if the Village in my opinion 13 is to prevail in this, the best argument and 14 perhaps the only possible successful argument 15 that can be made is on this per capita approach. 16 And so the question arises: Are there any 17 other sites other than the present location that 18 might be available? 19 In order to determine that we engaged the 20 services of Jim Fleishman, a planner who is 21 familiar with the Village, to look at all of the 22 commercial properties within the Village. 23 And what -- there have been, of course, as 24 you know, a couple of annexations since you 25 adopted the ordinance -- Section 45-20 of your LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 10 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 1 Village Code. 2 What we have determined is we do have, we 3 do have the one site available. We also have -- 4 this is the DeSantis property or the property 5 where originally the Target store was targeted 6 for; now I believe it's my understanding it has 7 approval for a shopping center. 8 This area, according to the way the 9 Village has applied its code, a portion of this 10 area would be available in one of the bays if an 11 adult entertainment facility operator came in to 12 find out whether or not he or she could operate 13 such a facility there. 14 It would have to of course go through the 15 approval process of the Village council, but the 16 key here is that it is potentially available. 17 It doesn't have to be in the market necessarily 18 available. There could, for example, be 19 covenants that restricted what kinds of 20 businesses could go in this shopping center. 21 And -- 22 You have a question, Dr. Eissey? 23 COUNCILMAN EISSEY: I just want to know if 24 you mind us asking questions as you go, or would 25 you prefer to do your whole presentation and LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 11 1 then have us ask questions? 2 MR. BAIRD: I think I am almost done, so 3 if you could hold it for just a minute. 4 COUNCILMAN EISSEY: I would be happy to. 5 MR. BAIRD: If there were covenants, for 6 example, despite the fact that covenants say 7 that no adult entertainment could occur within 8 this shopping center, the courts have said 9 that's not a problem in terms of how they are 10 going to interpret the law. 11 The potential problem is that there is 12 that facility -- I want to get this name right 13 -- Our Lady of Florida Spiritual Center, that is 14 located close by. 15 Now, your ordinance says that worship 16 centers -- sets up a standard of proximity 17 between adult entertainment and worship centers. 18 It is my understanding that this facility no 19 longer really operates as a worship center as 20 much as it does a meeting place for folks. They 21 may be discussing religious matters there, but 22 it's not in the conventional sense a church. 23 And so we believe if that's the 24 interpretation applied by the Village, and 25 checking with Tom Hogart and Jim Fleishman, they LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 12 1 2 3 4 5 6 7 8 9 10 11 12 13 both believe that that's a reasonable interpretation and would be an interpretation that could be applied, then this site would meet all of the ordinances and standards that exist. The second site is really two sites down here. This is the Citco station on the corner of Prosperity Farms and Northlake. Next to it is, I think it's Eyeglass World. And then next to it is another facility. COUNCILMAN TRINGALI: Express Lube. MR. BAIRD: Express Lube. In back of it is Aldrich Rental. In order for this -- this site would meet 14 the requirements, but in order for it to meet 15 the requirements it would have to be subdivided, 16 because right now it is one parcel and this 17 parcel is adjacent to a residential zoning 18 district. 19 So in order for these sites to meet the 20 requirements, there would have to be -- the site 21 would have to be subdivided. 22 It is not clear how the court would treat 23 that. Probably the way the court would treat 24 that would be if it was likely, if the evidence 25 showed that it was likely that it could be LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 subdivided, then the court would include that and accept that as a site. Given the Village's position regarding adult entertainment, it would seem that it would be unlikely that the Village would willingly agree to a subdivision of that site to make that site available for adult entertainment. And if that were the testimony given to a court, then the court would be hard-pressed to accept that site as one for inclusion. The other site -- and these sites were annexed, by the way. The other site is in this area right here (indicating). It meets the requirements except there is a residential, an occupied residential structure. That structure is within 200 feet of the lot line of this. It is the only instance in the entire Village where the criteria of being within 200 feet of a preexisting residence is applied. And so if the Village code was amended to delete this requirement, then this site would meet the zoning requirements, and you would not be risking anything elsewhere in the Village, because this is the only location where that occurs. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 14 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 That's a rental property. It's a 2 nonconforming use. And it probably ought to be 3 a commercial use anyway, but the owner of that 4 property has been apparently leasing that 5 property for some time. 6 It's not, according to what I understand, 7 necessarily an attractive structure, but it 8 exists, and because of this particular provision 9 of the code, that site in this southern part of 10 the Village would not be eligible. 11 So in summation: If the Village is to 12 have a good chance, really any chance of 13 prevailing in this litigation, the action that 14 you would need to take would be to authorize an 15 amendment of Section 45-24 A of your Village 16 Code to delete the provision that requires -- or 17 prohibits the location of these facilities 18 within 200 feet of a preexisting residence. 19 By the way, residential is still protected 20 because there is a requirement about residential 21 zoning districts. So in deleting that provision 22 you are not going to be risking other people who 23 live in residential areas. 24 That's the action you would have to take, 25 and although the Village council would not have LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 15 800-626-6313 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 1 to take this action, it would have to be 2 understood that the Village is not applying a 3 not considering Our Lady of Florida Spiritual 4 Center -- 5 COUNCILWOMAN VASTOLA: The monestary, 6 everybody knows about the monestary. 7 MR. BAIRD: The monestary. 8 (Continuing) -- as a church. 9 With those two criteria, then, you have 10 three sites per 12,000 or one site per 4,000 11 and you fall within constitutional parameters 12 and you give the Village the best chance of 13 prevailing in the litigation. 14 The last thing that I would say about it 15 is that there is a counterclaim that has been 16 filed by the Defendant, 421 Northlake. That 17 counterclaim alleges violations of their first 18 amendment rights and asks for damages in the 19 form really of injunctive relief from the 20 Village from applying that, not damages. But it 21 also asks for attorney fees. 22 If they prevail on that counterclaim under 23 Section 1988 of the Federal Code, in all 24 likelihood the court will be awarding attorney 25 fees against the Village for the cost of the LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 16 1 attorneys' time and effort in prosecuting that 2 counterclaim. 3 MAYOR NORRIS: Dr. Eissey? 4 COUNCILMAN EISSEY: I have two questions, 5 if I may. 6 Up there where the Target store area is, 7 is that not extremely close to where Benjamin 8 School is? 9 COUNCILWOMAN VASTOLA: It's right across 10 the street. 11 MR. BAIRD: Yes. 12 COUNCILMAN EISSEY: So how can we have it 13 -- if we are concerned about the monestary, how 14 could we have it that close to a school? 15 MR. BAIRD: The separation requirements 16 for a religious institution are 500 feet. 17 Let's see. The school -- 18 COUNCILWOMAN VASTOLA: The school is 500 19 feet also; isn't it? If I remember right, I 20 think it's 500 feet also. 21 Isn't it, Charley? 22 COUNCILMAN EISSEY: Not that far away from 23 it. 24 COUNCILWOMAN VASTOLA: You don't 25 remember -- LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 17 1 VICE MAYOR O'MEILIA: I don't remember. 2 MR. BAIRD: 500 feet for an educational 3 institution. 4 The location of the facility would 5 obviously have to be in the northern -- where is 6 Benjamin? 7 COUNCILWOMAN VASTOLA: Down south, 8 directly south. 9 MR. BAIRD: It's going to have to be -- 10 the way the Village code is applied by the staff 11 is not to measure it from the lot line, but to 12 measure it from the bay. 13 So if they were located in a bay that was 14 in the northern part of the shopping center, 15 they could meet that 500 foot separation 16 requirement. 17 COUNCILMAN EISSEY: Just a statement and 18 another question, if I may, Tom. 19 I wouldn't -- I am speaking for myself -- 20 I wouldn't even consider that area close to a 21 school where kids could traverse through there 22 by just walking through there, not having to, 23 say, drive down to West Palm Beach if that's 24 what they wanted to do and so on. 25 That would be ludicrous to me personally. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 18 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 And I just want the council to know how I feel 2 about it. 3 I wouldn't want it anywhere near -- I've 4 got grandkids up there, and I definitely would 5 not want to have it in an area that even that 6 they know that it's there, that close to a 7 school. 8 MAYOR NORRIS: Can I say something? 9 I don't think -- you are not suggesting 10 that we make any change or amendment to allow 11 that in that area; you are suggesting that that 12 may be an area under our code that really does 13 permit: 14 Is that what you are saying? 15 MR. BAIRD: Yes, sir. 16 MAYOR NORRIS: The argument is that he is 17 trying to find another one or two areas that, as 18 it exists now, the code exists -- 19 COUNCILWOMAN VASTOLA: That ethically -- 20 MAYOR NORRIS: -- it would be permitted. 21 So he is not suggesting a change; he is 22 saying that may be one that is permitted now. 23 COUNCILMAN EISSEY: But if it is 24 permitted, if I may continue for just a moment, 25 please, if it is permitted, you can bet your LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 19 1 sweet bippy that somebody is going to try to get 2 in there, and even close down below. 3 My second question is: Where the adult 4 book store is located now, and Crystal's is very 5 close to it, are we trying to seek another 6 possible area just so that we will meet the 7 court order that there are two places? 8 I read the thing carefully, but I don't 9 quite understand why we are trying to find 10 another area that may be permitted to build 11 another adult book store or another -- are we 12 going to attempt to move Crystal's or move the 13 adult book store? 14 MR. BAIRD: No. 15 COUNCILMAN EISSEY: I didn't think so. 16 MR. BAIRD: We are not trying to find any 17 area to relocate or to encourage someone to 18 locate adult entertainment. 19 We are only trying to find those areas 20 which currently exist in the Village that, if 21 someone wanted to open such a facility and they 22 came to the Village, based upon all of the 23 criteria in the code, where are the locations 24 they could locate. 25 They don't have to be locations that -- I LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 20 1 will go back to the shopping center as an 2 example. 3 The way that to control whether or not 4 they could come into the shopping center, 5 ultimately that will be up to the shopping 6 center owner, who either will agree to lease 7 space to such establishment or may take the 8 preemptive strike of adopting a covenant which 9 prohibits that. 10 And were that to occur, and it's possible 11 that we could encourage that to occur, then that 12 site, although an eligible site, in reality 13 would never develop as an adult entertainment 14 facility so long as that covenant existed. 15 COUNCILMAN EISSEY: Could we, Joe -- 16 please excuse me -- could we not -- I am 17 searching for the word -- not give permission to 18 lease it or to do something, permit it for a 19 shopping center unless they agree to a covenant 20 that would prohibit it? 21 I don't know if we can do that. 22 COUNCILWOMAN VASTOLA: We can't do that. 23 MAYOR NORRIS: Could we make a condition 24 for approval, a condition of the approval that 25 there be a restriction against adult LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 21 1 entertainment? 2 COUNCILMAN TRINGALI: No, I don't think 3 so. 4 MR. BAIRD: I would suggest that while you 5 might encourage that privately, that doing so 6 publicly might create some problems. 7 MR. KELLY: Almost in the contract zoning 8 at that point. 9 MAYOR NORRIS: Yes. 10 Are you done, Dr. Eissey? 11 COUNCILMAN EISSEY: Yes, sir. 12 MAYOR NORRIS: Mr. Tringali? 13 COUNCILMAN TRINGALI: As I understand it, 14 Tom was kind enough to supply me with the 15 memorandum of law and the cases, and I did read 16 them. And it was an educational experience. I 17 couldn't believe the federal courts were 18 monkeying around with things like population and 19 how many adult book stores... 20 He was telling me this on the phone and I 21 thought this is ridiculous. What federal court 22 would do this? 23 By God, he was right. 24 MR. BAIRD: They all do. 25 COUNCILMAN TRINGALI: There are actually LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 22 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 written opinions about this stuff. 2 But as I understand it, after going 3 through that and after speaking with you and 4 after listening this evening, what you are 5 saying is in the course of the argument in the 6 Southern District Court you want to be able to 7 say, well, certainly there are these other 8 available areas, judge. Okay. Here is one, 9 here is one, here is one. 10 The fact that those areas are -- and the 11 courts have said the fact that those areas are 12 not economically available is irrelevant. Okay. 13 The fact that Eyeglass World doesn't plan to 14 sell any time within the next hundred years, 15 that's too bad for you. You, Mr. Adult Book 16 Store, you have to make them a better offer. 17 What the council is saying to you, Tom, I 18 think, because I get a cold feeling in my heart, 19 knowing how the law works and knowing how the 20 public works, we get these headlines that say 21 things like "North Palm says Benjamin School 22 available for adult book store site." 23 And the people that are reading that don't 24 understand the legal argument involved. And 25 that's where we are going to get killed. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 23 1 And so based on that, is there any way we 2 can simply confine our argument to area A and 3 area B over there, which is Ed Morse Chevrolet, 4 and that's never going to move, and besides that 5 it's on the other side of the railroad tracks, 6 and even if it got a misunderstood headline, 7 people would not be as ready with the tar and 8 feathers for us as they would be if you started 9 talking about the monestary and the school. 10 MR. BAIRD: The problem with the Ed Morse 11 site is that it's zoned C2, and not Cl. Cl is 12 the zoning where adult entertainment, if it's to 13 occur, can occur. 14 So the argument that then has to be made 15 is that the Village would be willing to rezone 16 to Cl if someone came in with a plan for adult 17 entertainment here. 18 And the courts have said we need evidence 19 that that could would occur. 20 Obviously, the only kind of evidence 21 you're going to be able to produce is a witness 22 who says, to the extent any witness can speak 23 for the entire council, in my opinion the 24 Village council would approve this rezoning. 25 And so I think from an evidentiary point LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 24 1 of view, that's a difficult burden. 2 But let me back up, because your points are 3 well taken on this issue, and I am by no means 4 suggesting or encouraging that site. I am 5 simply saying in terms of what sites are 6 available, that's one of the sites that are 7 available. 8 And the way that that gets communicated is 9 we are either going to move for summary judgment 10 and use the affidavit of a planner to say: Here 11 is the zoning map, here is the sites that meet 12 this. Based on these facts, this is the law. 13 Applying the law, we fall within one site per 14 six thousand. 15 In the alternative, if we determine that 16 summary judgment is not the route to go and we 17 have to go to trial on that issue, the testimony 18 of the planner is going to be: I am an expert 19 in planning. I am familiar with the Village. I 20 have examined the entire Village. I have 21 examined all of the Cl zoning areas within the 22 Village. I have examined the separation 23 requirements of the Village's ordinances 24 regarding adult entertainment. In my 25 determination these are the sites that are LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 25 1 eligible for adult entertainment. 2 The Defendant's planner expert is going to 3 do the same thing, except his conclusion is 4 going to be only the adult warehouse site as the 5 one that's available. 6 COUNCILMAN TRINGALI: Let me ask my 7 follow-up question: 8 What if we -- as I understand it, the 9 current site is considered one site because 10 these joints are too close to each other. 11 What if we were to amend the ordinance and 12 say, well, they only have to be 100 feet apart 13 from each other; could we then say that's two 14 sites but they happen to be on the same lot? 15 MR. BAIRD: That's something that we would 16 have to look at in terms of how much -- how many 17 linear feet we have got available and what kind 18 of amendment would have to be made in order to 19 make two sites available at that location as 20 opposed to one. 21 COUNCILWOMAN VASTOLA: Are you talking 22 about the video location? 23 COUNCILMAN TRINGALI: Yes, in other 24 words -- 25 COUNCILWOMAN VASTOLA: Just the video LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 26 1 2 3 location, you are going to say that's two spots there, not one? COUNCILMAN TRINGALI: No. You are going 4 to say that the video and Crystal's are two 5 6 7 8 separate spots, are two separate areas -- MR. BAIRD: Right. COUNCILMAN TRINGALI: -- because we don't require them in the future to be a thousand feet 9 apart, or whatever they are from each other 10 MR. BAIRD: Two thousand. 11 12 13 COUNCILMAN TRINGALI: -- we are going to let them be 100 feet apart. My point is if you have to have cancer 14 some place, better it should be in one very 15 small area than metastasized through the entire 16 body politic. 17 MR. BAIRD: I would suggest that that's 18 something we should ask the planner to look at. 19 We should measure and determine whether it 20 creates any more opportunity to win the case for 21 the Village. But at the same time we need to 22 make sure that it does not open up other 23 alternatives -- 24 COUNCILMAN EISSEY: Right. 25 MR. BAIRD: -- in other areas of the LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 27 1 Village. 2 If we can accomplish both, then that's a 3 very good suggestion and something we should 4 evaluate. 5 COUNCILMAN EISSEY: If we leave that at a 6 hundred feet, though, my concern is that there 7 may be three or four or 500 feet areas that they 8 -- like at Benjamin, you know, in terms of the 9 you can't be so close. I think -- 10 COUNCILWOMAN VASTOLA: They are only 11 allowed 2200 feet on Northlake Boulevard. 12 That's all that's allowed in the community right 13 now, is those 2200 feet there that those two 14 facilities are within right now. 15 I mean, really, logistically the ordinance 16 mandated that it was not allowed anywhere else 17 in the community. 18 Am I correct? I mean, that's what we 19 passed, is only that 2200 feet. 20 Unfortunately, they are fairly close 21 together. They are within the thousand feet. 22 If we did a situation where those two are 23 the only ones allowed in here, would we be 24 meeting code where no more would be allowed in? 25 COUNCILMAN TRINGALI: It would be close. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 28 1 MR. BALDWIN: It depends upon how you draw 2 it and -- 3 COUNCILMAN TRINGALI: You would be close. 4 MR. BALDWIN: I think Tom is correct. We 5 would really have to look at it from whatever 6 change you make, how it would affect the 7 entire -- 8 COUNCILWOMAN VASTOLA: Well, what you 9 could do is you could narrow it down. You could 10 take -- narrow down, instead of 2200 feet, 11 narrow down the area that the two facilities are 12 in, and say that they can't be any closer than 13 what they are. So that would narrow down how 14 many you could have. 15 That way we would have two for the entire 16 community. It would be two per six thousand 17 people. And we would probably meet all the 18 codes. 19 I don't feel comfortable letting it be 20 public record that there is a little tiny place 21 up there and there is a little tiny place over 22 here. You know, to me that's just opening a 23 whole new can of worms. 24 I think Joe is right. If you've got to 25 have cancer, I just want cancer in one little LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 29 1 place; I don't want it scattered through the 2 whole body here. 3 MAYOR NORRIS: The problem with that, 4 though, is that's the only way you are going to 5 establish that it's valid and enforceable. 6 MR. BAIRD: First of all, it is already 7 public record that that site is available. 8 MAYOR NORRIS: Someone researched it. 9 MR. BAIRD: If someone comes in and 10 examines the record and comes to the conclusion 11 that the monestary is not a church, then that -- 12 a portion of that site meets your standards, and 13 there is really nothing you can do about that, 14 other than change your standards. 15 VICE MAYOR O'MEILIA: When we passed that 16 ordinance we made an assumption that that space 17 up there was ruled out because of the 500 feet 18 to the church. We made that assumption. 19 They are saying now -- 20 COUNCILWOMAN VASTOLA: That that's not a 21 church. 22 VICE MAYOR O'MEILIA: -- that maybe that's 23 not a church. 24 I don't know who is going to decide 25 whether that's a church or not. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 30 1 MR. BAIRD: The use has changed, is what 2 is my understanding. 3 VICE MAYOR O'MEILIA: Don't they still say 4 mass up there every day? 5 COUNCILMAN EISSEY: Yes, every morning. 6 VICE MAYOR O'MEILIA: Unless they quit. 7 MR. KELLY: I think the code say religious 8 institution. 9 COUNCILWOMAN VASTOLA: I think it's a 10 religious institution. I don't know that it's 11 necessarily a church. 12 MR. KELLY: I think our codes say 13 religious institutions. 14 COUNCILWOMAN VASTOLA: Which that is what 15 that is. 16 MR. KELLY: I think the relation should be 17 institution. 18 MR. BAIRD: Well, you have a report from 19 Mr. Fleishman, not done as part of this 20 exercise, that was previously done, where he 21 reached the conclusion that that site was not 22 operating as a church but was operating -- 23 convention center is not the right term, but 24 it's a meeting place. 25 COUNCILWOMAN VASTOLA: It is a retreat, LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 31 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 it's a religious retreat, is what it is. 2 MAYOR NORRIS: Well, I think what you're 3 hearing is no one really wants to use the 4 5 6 argument of that up by the monestary, that piece up by the monestary. Now you are saying we have arguments for 7 these parcels down in the south end. But it 8 sounds to me like what everyone is getting to is 9 those are the arguments we want to express or go 10 forward with and leave that other argument 11 12 13 14 15 alone, you don't have to express it, it sounds like to me is what we are saying. But we need to know what your feeling is about the argument on just the south side. Is that a fair statement? 16 VICE MAYOR O'MEILIA: Yes. If we can use 17 -- if we use that southwest corner down there, 18 would we have to change the code? 19 MR. BAIRD: Yes. 20 VICE MAYOR O'MEILIA: And then could we do 21 that and still involve this lawsuit? 22 MR. BAIRD: Yes. 23 VICE MAYOR O'MEILIA: We could go ahead 24 and change the code and bring the lawsuit? 25 MR. BAIRD: Yes. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 MAYOR NORRIS: And it's applicable to them. They are not grandfathered in or anything like that? MR. BAIRD: The court is going to look at the ordinances that are in place at the time that it's going to be considering it. MR. BALDWIN: We have that with our -- VICE MAYOR O'MEILIA: What would you have to do down there in that corner? MR. BAIRD: Have to delete the provision in 45-20 that says it can't be within 200 feet of the lot line of a preexisting residence. MAYOR NORRIS: Does that bring in any other -- MR. BAIRD: No, this is the only -- MAYOR NORRIS: Does that bring in any other areas? MR. BAIRD: No. This is the only area 19 where this provision of the code comes into 20 play. 21 MR. KELLY: Just for historical purposes, 22 we argued that when we first set this code up. 23 We originally put in 200 feet of a residential 24 zone, and then we came back purposely and said, 25 wait a minute, there are some homes or LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 33 1 residential units that may not necessarily be in 2 a residential zone. So we changed the ordinance 3 to read a residence, not residential zone. 4 Now, he is suggesting a proposal basically 5 to eliminate the residence which would fall 6 back to residential zone. 7 Is that what we are dealing with now? 8 MR. BAIRD: Right. What our expert tells 9 us is that this is the only location that this 10 provision protects. 11 MR. KELLY: I was under the impression if 12 we went by residential zone we opened up a whole 13 lot of other homes within that 200 feet 14 criteria. 15 But I am trusting my memory now. I can't 16 recall if there were specific homes or if it was 17 just a matter of semantics. 18 VICE MAYOR O'MEILIA: Where is this 19 residential home? Is it in a -- what zoning 20 district is it in? 21 MR. BAIRD: It is a commercial zoning 22 district. 23 COUNCILWOMAN VASTOLA: Cl. 24 MR. BAIRD: It's a nonconforming use. 25 MR. KELLY: Must be over there behind LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 34 1 Oscar's or someplace -- 2 MAYOR NORRIS: Mr. Tringali? 3 COUNCILMAN TRINGALI: Giving you all of my 4 sympathy, because as we practice law and -- 5 practicing law and, you know, now all of a 6 sudden you're telling us what a lawyer would do 7 and we are telling you, yes, but we can't do 8 that, I would say the realistic view in North 9 Palm Beach is: 10 If we have to make a change and offer up a 11 sacrificial lamb, in terms strictly of argument, 12 we are not rezoning, we are not inviting in 13 adult book stores and porno shops and everything 14 else, but if we have to explain that to the 15 public, it is going to be a hell of a lot easier 16 to explain it west of Alternate AlA than it is 17 to start talking about the monestary, Benjamin 18 School and all that other stuff. 19 So I would do anything within reason, as 20 long as we are not opening up a can of worms, I 21 would say let's focus our attention on that 22 southwest area, you know, because then you have 23 all of the great practical arguments: We are 24 not building a new shopping plaza; we are not -- 25 we don't have to worry about what is going in LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 35 1 there; we already know what's in this area that 2 we are discussing, that is a car dealership 3 that's been there forever and is going to stay 4 there forever. 5 If we've got to start pointing the finger, 6 let's point it at that. 7 VICE MAYOR O'MEILIA: What we are looking 8 for is two sites. 9 Does that do it? 10 MAYOR NORRIS: Two sites or one additional 11 site. 12 MR. BALDWIN: One per four -- 13 MR. BAIRD: One more site gets you just 14 over the line. Two more sites would get you 15 well within the parameters. 16 VICE MAYOR O'MEILIA: In other words, you 17 are saying that if we get that one in the 18 southwest corner, it's a maybe. If we get the 19 one -- 20 MR. BAIRD: Yes. 21 VICE MAYOR O'MEILIA: -- that one and the 22 one up north, it's pretty much of a done deal? 23 MR. BAIRD: No, I am not saying that. 24 Because remember earlier in my presentation I 25 said that's the approach that the Middle LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 36 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 District of Florida has taken. 2 That same approach has been rejected by 3 the Southern Cistrict of Florida, who has said 4 that a per capita test is not the way to go. 5 It's an area test. 6 And there is no way that the Village can 7 meet the area test. 8 VICE MAYOR O'MEILIA: Okay. Then I 9 rephrase it. Forget the acreage test. 10 If this is the only measure, then the 11 three would be better than two. 12 MR. BAIRD: Yes. Three gets you in the 13 ball game, and then the court has to buy the 14 argument of the Middle District and agree. 15 VICE MAYOR O'MEILIA: But to do the three 16 we still have got to change that zoning down in 17 the southwest corner. 18 Don't have to change the ordinance. 19 MR. BAIRD: You have to change the adult 20 entertainment issue. 21 COUNCILMAN TRINGALI: Simply to remove the 22 200 feet of a preexisting residence and go back 23 to residential zone. 24 MR. BAIRD: Now, if you wanted to include 25 the Ed Morse dealership as an alternative site, LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 37 1 then you have to change the zoning from C2 to 2 Cl. 3 COUNCILWOMAN VASTOLA: What if we just 4 dropped the whole thing? What if we dropped it? 5 MR. BAIRD: That's obviously an option. 6 COUNCILMAN EISSEY: Yes, what is the big 7 deal about that? 8 COUNCILWOMAN VASTOLA: Why don't we just 9 drop that whole thing? 10 MR. BAIRD: I am arguing for -- 11 MAYOR NORRIS: Let me ask a question 12 first: 13 To get to the two -- to count that area in 14 the north end, do we have to make any kind of 15 zoning changes? 16 MR. BAIRD: No. 17 MAYOR NORRIS: That's just an argument. 18 COUNCILMAN TRINGALI: That's just an 19 argument. 20 MAYOR NORRIS: To get to the -- 21 MR. BAIRD: -- the shopping center. 22 The shopping center is acceptable if the 23 monestary is not a religious institution. 24 And what I am hearing is it is a religious 25 institution, so it's not eligible. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 38 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 COUNCILMAN TRINGALI: I am pretty sure 2 3 4 5 6 7 8 9 10 11 12 they say mass there every morning. MAYOR NORRIS: So it's just an argument for that. COUNCILMAN EISSEY: They do. COUNCILMAN TRINGALI: Brian Roberts goes up there every morning, so I know. MAYOR NORRIS: The other one is a zoning change. VICE MAYOR O'MEILIA: The other one is an ordinance change. MAYOR NORRIS: Dr. Eissey? 13 COUNCILMAN EISSEY: I for one would rather 14 drop the case against Crystal's than open up any 15 possibility whatsoever for another adult book 16 store or another Crystal's to open up just 17 because we are in a suit with Crystal's which 18 has been there -- for how many years, sir? 19 MR. BAIRD: Approximately three. 20 COUNCILMAN EISSEY: Crystal's has been 21 there just three? 22 MR. BAIRD: Well, the adult entertainment 23 aspect of it, yes. 24 COUNCILMAN EISSEY: Okay. We are stuck 25 with that, in my opinion. And I think that if LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 39 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 we open up that other area, Charlie, and then we 2 consider the northern area up there, we may be 3 inviting some people to test the waters to open 4 up another place. 5 And I do not want to see that happen. 6 COUNCILMAN TRINGALI: Tom -- 7 MAYOR NORRIS: Let me say one thing: If 8 we don't do anything, and either we lose the 9 case or we drop the case, what's to prevent 10 someone else to come in and challenge the 11 ordinance? 12 Because it sounds to me like what you are 13 saying is it's probably -- it may be, very well 14 may be unconstitutional. 15 COUNCILMAN TRINGALI: We could be back 16 where we started. 17 MR. BAIRD: Right. Let me just, if I 18 could, Mr. Tringali, respond to Dr. Eissey. 19 A good reason for your position is this: 20 If you don't move forward with the suit, 21 if we stipulate to drop our action and they drop 22 their counterclaim, you're left with a 23 constitutional ordinance that in order for 24 someone else to come into the Village, they have 25 got to then prove the case that it's not LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 40 1 constitutional. 2 COUNCILMAN EISSEY: Right. Correct. 3 MR. BAIRD: So you have an obstacle for 4 anyone who might want to locate another 5 facility. 6 If you take the approach of going to trial 7 and you don't win at trial, you've got an 8 unconstitutional ordinance, you pay attorney 9 fees, and you either have to pass a new 10 ordinance that is constitutional fairly quickly 11 or you run the risk of others locating while the 12 door is open. 13 Now, I don't know that there are a number 14 of operators out there that are looking to 15 locate in North Palm Beach. 16 I do know from my discussions with PBSO 17 and other law enforcement agencies that because 18 of the enforcement that's going on in Broward 19 and Dade Counties, there are a lot of these 20 operators moving up to Palm Beach County. 21 COUNCILMAN TRINGALI: Apparently going out 22 on 45th Street. 23 MR. BAIRD: Rachel's. 24 VICE MAYOR O'MEILIA: Port St. Lucie, too. 25 MAYOR NORRIS: But you are saying that if LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 41 1 we drop the case, we have a constitutional 2 ordinance only because there's no case that has 3 gone to trial to prove it otherwise. 4 So what you are kind of telling us in 5 determining whether to drop the case is that if 6 someone challenges us we would have a pretty 7 poor case against them. 8 COUNCILMAN EISSEY: They have to prove it. 9 COUNCILWOMAN VASTOLA: Then they have to 10 prove it. 11 MAYOR NORRIS: Well, they have to do it in 12 this case, too. 13 But what he is telling us tonight is that 14 it sounds like he thinks they have a good chance 15 of proving, a very good chance. So he is not 16 coming out and saying it, but we are getting the 17 impression that maybe we need to consider 18 dropping it. 19 But I just want everyone to understand 20 that if we drop it, that a year from now if 21 someone else does decide to come in and 22 challenge it, we could be right back in the same 23 boat if we don't change the ordinance. 24 COUNCILWOMAN VASTOLA: But at least we 25 have something to say; well, we have two LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 42 1 already in the community. At least we can stand 2 on that. 3 MAYOR NORRIS: I don't think that would do 4 it. That doesn't do it. 5 COUNCILMAN TRINGALI: That doesn't speak 6 to the constitutionality as he is describing it. 7 What these moronic federal courts -- and 8 you can quote me -- are saying is -- and I don't 9 care, because this is absolutely stupid -- but 10 in any event, what they are saying is in order 11 to fall within the -- what the middle district 12 of Florida has considered constitutional we have 13 got to have at least one more and probably two 14 more areas where we can say, well, if you really 15 wanted to move in you could go there but you're 16 going to have to buy out Ed Morse first. So if 17 you have got 20 million dollars, have at it. 18 MR. KELLY: Are you saying, Tom, that this 19 was the area, the Ed Morse Chevrolet area, or 20 was it this area right here? 21 COUNCILWOMAN VASTOLA: I think it's the 22 visual, the eye guy. 23 MR. BAIRD: It's both areas. 24 COUNCILMAN TRINGALI: Those are the two 25 areas. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 43 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 MR. BAIRD: The Eyeglass World site, but 2 it requires subdivision, which makes it -- in 3 all likelihood that's not going to count. And 4 then I am not sure of the exact location, but 5 there is a site in the proximity of the existing 6 rental residential structure that but for that 7 provision in the code, you would have an 8 eligible site in one of these two parcels. 9 COUNCILMAN TRINGALI: That's Mobile 10 Express Lube is the -- 11 VICE MAYOR O'MEILIA: There is a house -- 12 MR. BAIRD: There is a house behind 13 Mobile. 14 VICE MAYOR O'MEILIA: There is a house 15 behind and to the west of the Bud's. 16 COUNCILMAN EISSEY: That's right. 17 VICE MAYOR O'MEILIA: On the south side. 18 MR. BAIRD: And then the third possiblity, 19 but not a likely eligible site, is the C2 zoned 20 area where Ed Morse is. 21 And that's not likely to be eligible 22 because it's zoned C2 and not Cl. 23 VICE MAYOR O'MEILIA: Well, we could 24 change the zoning ordinance and say you could 25 put it in C2 because that's the only piece of LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 44 1 C2 that you have. 2 COUNCILWOMAN VASTOLA: That's the only C2 3 we have, is that one little piece there. 4 VICE MAYOR O'MEILIA: The only reason it's 5 C2 is because it has got a car dealer, which we 6 don't allow anywhere else. 7 MR. KELLY: Didn't we call that CC 8 automotive, though? 9 VICE MAYOR O'MEILIA: C2. CC is the other 10 special area up along the east side. 11 COUNCILMAN TRINGALI: So if we change the 12 adult ordinance to say you could be in a Cl or 13 C2 and you could be within 200 feet of a 14 residential zone, we now have an ordinance, 15 Mr. Baird, which in your opinion is 16 constitutional, or would -- 17 MR. BAIRD: Well, it could be 18 constitutional if you apply the Middle 19 District's test. 20 COUNCILMAN TRINGALI: Okay. But at least 21 we have an argument that we can walk into a 22 federal court with and say: Look, we are a 23 small village. The rules in the Southern 24 District don't apply because they are talking 25 about big metropolitan areas, we don't have one LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 45 1 2 3 of those. So we have applied this other test, and here are some decisions which support that. MR. BAIRD: It passes the straight -face 4 test. 5 6 7 COUNCILMAN TRINGALI: It passes the Middle District test. Well, what I am telling you is 8 appreciating -- speaking strictly for myself at 9 this point -- appreciating all your arguments on 10 the legality of the thing, I am telling you that 11 12 13 14 15 16 17 18 the reality is that's what the argument is going to have to be. Because when you start talking about the monestary and the school, there is going to be people in my front yard with tar and feathers. COUNCILWOMAN VASTOLA: Too bad K-Mart didn't go there. MAYOR NORRIS: We need to kind of wrap 19 this up. 20 What it is that we need to decide tonight? 21 What are you asking of us? 22 COUNCILWOMAN VASTOLA: What direction to 23 go. 24 MR. BAIRD: To decide whether you want to 25 continue with the trial, knowing and having been LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 46 1 informed about: A, the likelihood of success; 2 and B, the difficult burden we have, which is 3 proving the Middle District approach. 4 Or your other option is, as I see it, to 5 follow Dr. Eissey's recommendation that we not 6 pursue the litigation. 7 COUNCILWOMAN VASTOLA: I for one drop -- 8 tell them we will drop it, leave it in the 2200 9 feet we have. They go away with their expenses 10 and we go away with our expenses. 11 If they are not going to buy that, then do 12 the ordinance changes to allow it in those two 13 other areas down south. And don't dare look at 14 the piece of property up north. 15 VICE MAYOR O'MEILIA: That still does not 16 cure the acreage question. 17 COUNCILMAN TRINGALI: No. 18 COUNCILWOMAN VASTOLA: But then you are 19 going to have to have somebody come up and sue 20 us to allow it. 21 MAYOR NORRIS: What Mr. Baird is saying, 22 if it goes under the acreage test, there is no 23 way we are ever going to comply with that. 24 COUNCILMAN TRINGALI: That's it. You 25 can't comply with that. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 47 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 1 MR. BAIRD: In that respect, I certainly 2 agree with Mr. Tringali, that that's a 3 ridiculous standard for the courts to impose, 4 because that standard -- the origin of that 5 standard is metropolitan areas. 6 And what the courts are saying is: North 7 Palm, you've got to have so much; Juno, you've 8 got to have so much, et cetera. And I don't 9 believe that's good law. 10 COUNCILMAN EISSEY: Mr. Chairman, so that 11 we can move this along, I would like to make my 12 position very clear, succinctly: 13 I do not want us to do anything about that 14 northern area around Benjamin School or where 15 the Target place is, and because of the 16 monestary, as well. 17 I do not favor going to the west where the 18 automobile place is. 19 I recommend from my viewpoint that we drop 20 the case, not continue the litigation, and that 21 we let whoever wants to come in next fight us in 22 court to try to prove that we are doing 23 something wrong. 24 COUNCILMAN TRINGALI: Well -- 25 MAYOR NORRIS: Mr. Tringali? LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 48 1 COUNCILMAN TRINGALI: Well, the problem 2 with that is, we know these people are out 3 there, and -- 4 VICE MAYOR O'MEILIA: They are a union. 5 COUNCILMAN TRINGALI: -- they are going to 6 come, somebody eventually is going to come along 7 and fight us, and what we are being told is we 8 are not going to have even one leg to stand on. 9 At least if we make these rather minor 10 modifications to this zoning of other -- to the 11 adult entertainment ordinance, we will have one 12 leg to stand on, which is better than no legs. 13 MR. KELLY: What concerns me about this 14 area down here is that's where that Oscar's 15 restaurant is located, and it is abandoned. I 16 think it's empty right now. And -- 17 COUNCILMAN EISSEY: It is. 18 MR. KELLY: It has always come and gone as 19 a restaurant of some kind. 20 VICE MAYOR O'MEILIA: There is something 21 going in there now. 22 MR. KELLY: For two months. 23 MAYOR NORRIS: I think there is a couple 24 of questions that could be asked here. 25 One is if we decide, we can decide to drop LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 49 1 -- continue the case or drop the case, and then 2 if it's drop the case, then the next question is 3 are we going to do anything with the zoning 4 code, the ordinance, to try to correct it, to 5 help to avoid someone else coming in? 6 COUNCILMAN TRINGALI: Yes. 7 COUNCILMAN EISSEY: We can have two 8 separate motions. 9 MR. BAIRD: Mayor, could I inject 10 something? 11 MAYOR NORRIS: Yes. 12 MR. BAIRD: One of the other things that 13 Mr. Kelley asked me to examine was an amendment 14 to your ordinance that prohibits the serving of 15 alcohol in adult entertainment establishments, 16 which has been found in some communities to 17 deter the location of those facilities. 18 And the conclusion of the research is that 19 that certainly is constitutional, that is 20 certainly an option for you. 21 So if you do decide to drop the suit, what 22 I would recommend is that you immediately engage 23 in all of those amendments that you can make to 24 your code to give you the best chance of 25 preventing this from occurring in the future. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 50 1 VICE MAYOR O'MEILIA: Put the alcohol -- 2 MR. BAIRD: Sale of alcohol prohibition. 3 MAYOR NORRIS: Can you do a prohibition 4 against consumption, not just sale? 5 MR. BAIRD: Sale and consumption. 6 COUNCILMAN EISSEY: Joe, why don't we do 7 two motions? Then you -- I will do one and you 8 do the other. 9 MR. BALDWIN: I have seen occasions that 10 say you can prohibit it. 11 COUNCILWOMAN VASTOLA: All sale of 12 alcohol, wine and beer and everything, prohibits 13 everything? 14 COUNCILMAN TRINGALI: Do we have to decide 15 this right now? 16 MR. BAIRD: Not as far as I am concerned. 17 COUNCILMAN TRINGALI: Otherwise we have to 18 go through it again. 19 MAYOR NORRIS: The next time we do it, I 20 think if you look at it, I don't know that we 21 actually have to have it during a regular 22 session. 23 MR. KELLY: We don't have to adjourn at 24 right at nine o'clock. We can keep going. 25 COUNCILWOMAN VASTOLA: We've got people LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 51 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 out there. 2 VICE MAYOR O'MEILIA: I don't want to make 3 a decision on that myself tonight. I need some 4 thought. 5 COUNCILMAN TRINGALI: My position is going 6 to be, and I will either state it now or down 7 the road: We are going to have to amend these 8 ordinances pursuant to your recommendation, Tom, 9 because if we don't, we are going to get right 10 back where we were with the Adult Video 11 Warehouse. 12 We have got -- whether we, in my opinion 13 whether we proceed against Crystal's or drop it 14 is irrelevant. Probably the more sensible thing 15 to do is drop it, so that we are not eventually 16 going to have a headline, "Village of North Palm 17 Beach pays $58,000 in attorneys' fees." 18 MAYOR NORRIS: Are we under any deadline 19 to make this decision? 20 MR. BAIRD: No. 21 MAYOR NORRIS: The case isn't coming to 22 trial or anything like that? 23 MR. BAIRD: The case is not currently set 24 on a trial docket because of the continuance. 25 COUNCILMAN TRINGALI: But, if I may just LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 52 1 finish: But at the same time I think we have to 2 amend these ordinances so that when we are 3 attacked, not if, when, we can then have a 4 defense and say, well, based on whatever that 5 case is -- what is it; Playhouse or Lingerie 6 Shop, the St. Petersburg case... 7 MR. BAIRD: Centerfold Club. 8 COUNCILMAN TRINGALI: Centerfold Club. 9 (Continuing) -- Based on Centerfold Club, 10 we tailored our ordinances to meet the standards 11 of the federal courts; that's the best we can 12 do. We come in here with clean hands, yada yada 13 yada. 14 Otherwise we are going to, I am telling 15 you -- 16 VICE MAYOR O'MEILIA: That Centerfold case 17 is that St. Pete deal. They threw them 18 completely out of county; didn't they? 19 MR. BAIRD: No, St. Pete lost the case. 20 VICE MAYOR O'MEILIA: I'm not thinking of 21 St. Pete. I'm thinking of -- 22 MR. KELLY: You're thinking of Palatka. 23 VICE MAYOR O'MEILIA: I am thinking of St. 24 Augustine. 25 MAYOR NORRIS: Mr. Tringali, are you LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 53 1 wanting to make a decision tonight or do you 2 want to come back? 3 COUNCILMAN TRINGALI: I will 4 MAYOR NORRIS: -- come back? 5 COUNCILMAN TRINGALI: Yes. I think 6 7 8 Mr. O'Meilia is correct. I think this needs more thought. COUNCILMAN EISSEY: That's fine with me. 9 MR. KELLY: Can everybody call you 10 individually and talk to you about this? 11 MR. BAIRD: Yes. 12 MAYOR NORRIS: We are adjourning the 13 attorney/client session. 14 15 (Thereupon, at 9:05 o'clock p.m., the 16 meeting was adjourned.) 17 18 19 20 21 22 23 24 25 LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 54 1 CERTIFICATE 2 - - - 3 THE STATE OF FLORIDA,) 4 COUNTY OF PALM BEACH.) 5 6 I, Jane Pastore, Registered Professional 7 Reporter, do hereby certify that I was authorized to 8 and did report the above meeting at the time and place 9 herein stated, and that it is a true and correct 10 transcription of my stenotype notes taken during said 11 meeting. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Dated this 27th day of April, 1998. Jane Pastore LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401