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HomeMy WebLinkAbout07-23-1998 VC SP-MPresent: ROLL CALL MINUTES OF SPECIAL SESSION OF THE VILLAGE COUNCIL OF NORTH PALM BEACH, FLORIDA HELD THURSDAY, JULY 23, 1998 David B. Norris, Mayor Charles O'Meilia, Vice Mayor Dr. 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 6:00 p.m. All members of Council were present. All members of staff were present. Mayor Norris announced at this time that the Village Council would recess for the purpose of holding an Attorney/Client Session at 6:00 p.m. for approximately 55 minutes to discuss the lawsuit of the Village v. 421 Northlake Blvd. Corp., d/b/a Crystal's Bar and Grill. Mayor Norris announced all persons who would be in attendance at the Session. RECESS Mayor Norris recessed the Special Session at 6:01 p.m. The Special Session reconvened at 6:45 p.m. Mayor Norris announced that the Attorney/Client session had adjourned. ADJOURNMENT There being no further business to come before the Council, the meeting adjourned at 6:46 p.m. /i . J ,ZKjthleen F. Kelly, CMC, Village CI k a 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 personally appeared fhris Bull who on oath says that she is Classified Advertising Ma ager 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 Open Meetinu/Attornev-Client Session in the ---- Court, was published in said newspaper in the issues of July 19. 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 has neither paid nor promised any person, firm or corporation any discount rebate, commission or refund for the purpose of securing this advertisement for publication in the said newspaper. Swom to and subscribed before me this 29. day of July D 1998 I Personally known XX or Produced Identification Type of Identification Produced (11127AJ1NA)INTNR centIVIcLintl0nr177JN7'{ OVI z o Notary Public, State of Florida ', , <H Q Commission No. C1115RN�> <9 x y Commission Exp. < 3' 00.3. M < hOTAAY Fla NatvySmieed Bonding Co.� < 1 MI03. NO. 497122 - - '_- VILLAGE OF NORTH PALM BEACH PUBLIC NOTICE THE CITIZENS AND PROPERTY �OWpN�ERS OF THE VILLAGE QF I"��U?�N(,1..yM��BEACH AND AU. IN'fEAE'STEUPERSONS ARE FRE Y AOVLSED ,LO_ TAKE TICE THAT MAYOR DAVID ORRIS, VICE -MAYOR LCHARLES R.R. O'MEILIA PRESI- - MUTT PRO TEM EDWARD M. VEISSEY COUNCILMEN GAIL H. i.VA5YOLA AND JOSEPH A. ItTRINGALI, WILL CONVENE AN jQPENMEETING _QF THE ;WORTH PALM BEACH VILLAGE ED INCH_ GN-YNURSDAY, ULY 23 119S AT 5;00 P M (RICH TIME THE VILLAGE SQCNCIL 'W!U. ANNOUNCE TS INTENTION TO MEET IN A I!PFVATE ATTORNEY -CLIENT TOW WITH ITS VILLAGE ER DENNIS KELLY, VIL JIGE ATTOQNFY nroRqt W .DWIN, AND LITIGATION EYS 'HOMAS 4 AND MARK HEN. RICK9,_TO_ DISCUSS PEND.' ING—UTIGATION STYLED VIL CAGE OF NORTH PALM BEACH bci421 NORTHLAKE BLVD P —DIB/A CRYSTAL'S R AND GRILL THIS ATTOR. Y;C_LIENT_SESSION WILL BE ELD PURSUANT TO FLA. T— Yy06O11C3) ONJULY T.f99S, ATAPPROXIMATELY ¢�.W_E1M„ ALTNE VILLAGE MALL 501 U.S. HIGHWAY 1, O _PALM QEACN FT ORE _ PHIVATE IS AJITEY E SESSION IS ANTIEf„ AMTO LAST FOR MATELY 55 1J. N-t _ ALSO. BE ADVISED TIM OCNCLUSION rc A = EVSLIENT= S W N AT_ APPBOXI MA'IEL.Y s55- P.M., OR A5 SOON -ttAFTER AS_POSSIBLE, VILLAGE COUNCIL WILL 11ECONVENE ITS !'URLIC LMEETING Lc) DIBQUSS ANY. _MATTERS WHICH REMAIN ON LITSAGENDA. Kathl4on F. Kelly, CAC -Village Clerk - - Pubuah: Palm Beach Poal lonaaY, July _/9 1998 VILLAGE OF NORTH PALM BEACH VILLAGE COUNCIL -EXECUTIVE SESSION ORIGINAL Thursday, July 23, 1998 6:10 PM to 6:45 PM Village of North Palm Beach City Hall North Palm Beach, Florida APPEARANCES Mayor David Norris Vice Mayor Charles O'Meilia President Pro Tem Edward Eissey Councilman Joseph Tringali Councilman Gail Vastola Village Manager Dennis Kelly Village Attorney George Baldwin Consulting Attorney Counsel, Thomas J. Baird LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 2 1 (Whereupon, the following proceedings 2 were had:) 3 MR. BAIRD: The last time we met we 4 discussed the need for alternate sites and I 5 identified the potential alternative sites. 6 And we proceeded to propose amendments to 7 the code that would deliver to potential 8 alternative sites. And tonight you know you 9 have a public hearing and first reading on 10 the ordinance. 11 The two sites on our exhibit are the Ed 12 Morse Chevrolet site, which is presently 13 zoned C-2. And what the ordinance would do 14 would be to amend the allowed uses in C-2 to 15 include adult entertainment as a use. 16 And the second amendment involves an 17 existing non -conforming residence that is in 18 this vicinity. And because of that 19 non -conforming building being used for 20 residential purposes, there is a separation 21 requirement from existing residential uses 22 that prohibits this site here where the 23 Mobile Jiffy Lube is from being considered 24 as a potential facility. 25 So the other amendment is to delete the LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 3 1 requirement of the existing residential use. 2 That does not mean that it would apply to 3 residential zoning uses because this 4 property is not zoned residential. It's 5 simply being used as a residence. And that 6 is the only location in the Village where 7 those facts exist. That is a non -conforming 8 building being used as a residence. So the 9 impact is limited in the Village. 10 I should add that the change to the Ed 11 Morse site, that the impact is also limited 12 because that's the only site that's zoned 13 C-2. So the ordinances that are being 14 proposed affect only these two properties. 15 MR. EISSEY: And only those two 16 properties are zoned C-2? 17 MR. BAIRD: Only the Ed Morse property 18 is zoned C-2. 19 MS. VASTOLA: The other one is C-1. 20 MR. BAIRD: I would also like to I 21 guess update you a little bit on the law 22 because it's been evolving. And the last 23 time I was here in the public workshop 24 session, I mentioned to you that I had some 25 good news that there was a case out of LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 4 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 Casselberry, Florida that was beginning to 2 go our way. 3 Well, this Monday Federal District 4 Court Judge Don Middlebrooks entered an 5 order in a case I was involved in defending 6 the Town of Jupiter dismissing a complaint 7 by Mr. Carmona against the Town where 8 Mr. Carmona argued that there were no sites 9 in Jupiter upon which he could locate his 10 proposed facility. 11 The judge in the order did not reach 12 all of the substantive issues. He dismissed 13 it based on standing and a ripeness ground, 14 which are technical legal procedural 15 mechanisms that have to be met in order for 16 you to be important in the first place. 17 But within his opinion he did discuss 18 because it had been raised in my memorandum 19 of law, that it may be possible for small 20 residential communities to not have any 21 adult entertainment facilities located 22 within their community if there were other 23 sites outside of their community that could 24 deliver the same entertainment. So we now 25 have a Middle District Court judge LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 5 1recognizing that it may be possible -- 2 MR. TRINGALI: Excuse me, the Southern 3 District. 4 MR. BAIRD: A Middle and Southern 5 District. The case that Judge Middlebrooks 6 cited too was the Middle District opinion 7 out of Casselberry, Florida that I had 8 represented to you at your last meeting. 9 So we're building the case now to show 10 that not only does the Village have a 11 sufficient number of sites based on a per 12 capita ratio basis. But in addition to that 13 there are sufficient number of sites within 14 a five, seven and a half and 10 mile radius. 15 By the time we get to trial we'll have those 16 graphics produced. 17 In fact, what our research indicates is 18 that within seven and a half miles of North 19 Palm Beach there are eight licensed adult 20 entertainment facilities. So our plan at 21 this point is to go into court, demonstrate 22 that the sites -- that the opportunity 23 exists within the Village. But not 24 withstanding that there are opportunities 25 here, there are also opportunities within LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 6 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 Palm Beach County in a reasonable proximity 2 to the Village. And that based upon the 3 facts of that case, our case, that this 4 ordinance in the Village of North Palm Beach 5 should be upheld as constitutional. 6 MAYOR NORRIS: I guess the question I'd 7 ask then is do we need to do the rezoning 8 and changing then that we're proposing now 9 given this new case? 10 MR. TRINGALI: I was about to ask that. 11 MR. BAIRD: Well, it's not the holding 12 of the case that you can do that. It's 13 discussed in dicta. And in my judgment it 14 would be a much riskier proposition in terms 15 of your ordinance being upheld to go in 16 without any sites and rely on other 17 community sites. Because Judge Cook in this 18 case is going to have to make an evidentiary 19 ruling that our presentation of sites 20 outside of North Palm Beach is relevant. 21 MR. TRINGALI: So what you're saying is 22 you don't want to walk into court based on 23 Casselberry alone. 24 MR. BAIRD: Casselberry and Jupiter. 25 MR. TRINGALI: And Jupiter. But you LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 7 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 want to say, hey look, we do have these 2 sites. And besides, judge, we don't even 3 need to have them. 4 MR. BAIRD: That's what the City of 5 Casselberry did and it was a formula that 6 worked for them. They had three sites in 7 Casselberry. They had three sites just 8 outside of Casselberry. And you know our 9 facts are a little bit different. We're 10 going to have -- I'm sorry. They had three 11 existing adult businesses inside Casselberry 12 and three in the unincorporated area just 13 outside of Casselberry. 14 Our facts are that we have one existing 15 facility. We have two sites that could 16 potentially house other adult entertainment 17 facilities, and within seven and a half 18 miles there are eight licensed facilities. 19 Not all of those facilities by the way are 20 open. And so the court is going to have to 21 work through those facts and make some 22 conclusions as to whether or not it's 23 relevant to even consider those sites 24 outside North Palm. 25 MR. KELLY: Tom, the eight facilities LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 8 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 1 in the County you said are not open. But I 2 presume you're talking about existing 3 facilities as compared to, what is it 4 called, theoretical opportunity based on the 5 zoning. 6 MR. BAIRD: Right. 7 MR. KELLY: But have we looked at the 8 unincorporated County in respect to that as 9 far as potential sites? 10 MR. BAIRD: We're also developing that. 11 When I say our, I'm referring to the planner 12 that we would retain, Jim Fleischman, and 13 myself. Our goal is to show this judge how 14 many theoretical opportunities there are and 15 how many existing facilities there are. 16 MR. EISSEY: That's good. 17 MR. BAIRD: And when we're done with 18 that, the graphic, the map that we're going 19 to show him is going to be dotted with 20 something like 20 opportunities within a 21 probably 10 mile radius of North Palm Beach. 22 MR. EISSEY: Red dots. 23 MR. BAIRD: Big red dots, flashing red 24 dots, or neon. And it will include -- by 25 the way, Jupiter's ordinance is being LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 9 1 amended. It will include six sites, five 2 sites in Jupiter. Opportunities, not actual 3 facilities. 4 MR. TRINGALI: Opportunities in 5 Jupiter. Okay. 6 MR. BAIRD: We've looked at Palm Beach 7 Gardens and there are no opportunities in 8 Palm Beach Gardens. Most of the 9 opportunities in existing sites within the 10 seven and a half mile radius are in West 11 Palm, Lake Park and Riviera Beach. 12 MR. TRINGALI: Do we need to do 13 anything else? Are you coming to us tonight 14 to say I need additional ammunition or are 15 you just updating us? 16 MAYOR NORRIS: What's the purpose of 17 our meeting tonight in other words? 18 MR. TRINGALI: I hope it's just 19 updating. 20 MR. BAIRD: Updating. At your last 21 meeting you wanted to have this meeting in 22 case there was any indecision on your parts, 23 a safety net really in case you decided to 24 back away from these amendments. 25 MAYOR NORRIS: You don't feel LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 10 1 comfortable given this new case of going in 2 there and making these changes? You still 3 don't think we would have a good shot? 4 MR. EISSEY: We're rolling the dice. 5 MR. BAIRD: The new case is not the 6 holding. And because it's not the holding 7 of the case, it's not going to be as binding 8 or persuasive on the judge. 9 MR. TRINGALI: My problem with this - 10 and first of all I want to thank you for the 11 absolutely outstanding presentation you did 12 at the last counsel meeting to the public. 13 Accept I kept sitting up at the counsel 14 table and saying I thought this was all top 15 secret stuff. 16 But in any event, it really explained 17 everything to the people that were out there 18 who are the citizens of this community. And 19 we all received a letter from at least one 20 lady saying, hey, I don't like it, but it's 21 what we have to do and let's hope for the 22 best. 23 I have no problem with the Ed Morse 24 property at all. Because I really think 25 that Ed Morse will be there forever. I'm a LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 11 1 little bit concerned about the area one 2 Mobile Express group site, because that's 3 owned by Mobile which is some corporation in 4 Kentucky. 5 And before anybody else says anything, 6 I realize we're on the record, I've had a 7 Mobile credit card since I was in college. 8 They provide wonderful gasoline and all that 9 other stuff. But I just really worry if 10 somebody comes along and says that, hey, 11 I'll give you five hundred bucks for that 12 station or you know their business suddenly 13 falls off to a net profit of only 20 percent 14 as opposed to their expected 25 percent. I 15 just worry about that. Ed Morse I don't 16 worry about at all. I just worry about a 17 site that's owned by an out of state -- 18 MS. VASTOLA: And it's a small site. 19 MR. TRINGALI: A small site that's -- 20 MS. VASTOLA: Do we really need that 21 site? 22 MAYOR NORRIS: Can we get by with two 23 and come within any of the formulas? 24 MR. KELLY: Before you answer that 25 question, let me ask kind of an intermediate LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 12 1 question. Let's say we amend the code like 2 we're on track to do now. Both those sites 3 get amended. We go to court and we don't 4 prevail. Let's say we lose. Could we come 5 6 7 8 back -- let's say we decide we don't want to appeal and we're just going to live with Crystal's where it is. Can we come back and amend those codes back and eliminate those 9 two slots and still be whole? 10 MR. BAIRD: Yeah. Sure. 11 MAYOR NORRIS: And then we won't have 12 an argument that they're grandfathered in or 13 anything like that. We've done that in the 14 past anyway. 15 MR. BAIRD: It's a separate zoning 16 action. 17 MR. BALDWIN: Nobody has applied for. 18 MR. TRINGALI: And then presumably we 19 would subject ourselves to another lawsuit 20 from some other adult business. 21 MR. KELLY: We could do a zoning in 22 progress kind of thing, too. 23 MR. TRINGALI: But then we'd have to 24 deal with the law that exists at that time 25 in the year two thousand three. LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 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 MR. BAIRD: Let me try and answer. Thank you for your comments about my presentation. Let me try and answer the questions sequentially taking the first question first and the intermediate question next. Based on the court opinions that I've seen, if the court applies the per capita analysis and as I've reported to you before, there's a question in the Southern District as to whether they'll use that. analysis or they'll use the percentage of land in the community analysis. But assuming they use the per capita analysis, ordinances that have had one site per six thousand have been held constitutional. Ordinances that have had one site per more than six thousand residential have been held unconstitutional. Assuming your population is 12,000, and you have two the envelope assuming the sites., you're at the edge of of constitutional ordinances per capita of ratio test is applied. If you're at three sites per 12, you're well within the envelope. Now, the reason we've looked at these sites outside of the community is because LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 14 1 not only do we want to be in the envelope, 2 but we want to give the judge the further 3 assurance that even if North Palm is not 4 quite all the way in the envelope here, 5 anybody who really needs to express their 6 first amendment rights by watching adult 7 dancers can do so within a fairly reasonable 8 travel distance from North Palm Beach. 9 So I believe I've put the Village in 10 the best position I could put the Village in 11 given the constraints that the Village has 12 in terms of the land uses that the Village 13 has, and in terms of the Village's character 14 as really a small residential community. 15 The third site helps. But if you feel 16 that this Mobile Lube site is just something 17 that you're willing to take that small 18 additional risk on, then you can leave that 19 one out. Your chances of having a 20 constitutional ordinance are better with it 21 in clearly. 22 MAYOR NORRIS: Here's an additional 23 thought on that. If you leave it out and we 24 give it a shot and maybe we win with these 25 other arguments. But then if we lose, we LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 15 1 have the ability to go back in, do this 2 third site, and go back and see if the third 3 site makes the difference. 4 MS. VASTOLA: I think you have one 5 chance to go. 6 MR. O'MEILIA: Let me say something 7 about that site. If you're concerned about 8 it -- and I have a concern about it too 9 about them buying the Mobile site. But I've 10 convinced myself now that that is the lessor 11 of all of these. Just looking at that from 12 a building inspector's standpoint or a 13 zoning standpoint, it's highly unlikely that 14 that will ever develop into a Crystal's, 15 into a bar and dining room place because of 16 the size of it and the parking requirements 17 that we have, the restaurant and things like 18 that. Highly unlikely. 19 It would probably be restricted to a 20 video place. I don't have as much of a 21 problem with a video place as I do with a 22 Crystal's place because we have them 23 already. I know we have one or two that we 24 just can't hammer and I know they're in Lake 25 Park. You know they are. They're all over LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 16 1 the place. The video places are. 2 The fact is we had one just north on 3 U.S. One for years. And then we had one 4 next to Sir Speedy for a year before we kind 5 of eased him out, the same guy, a video 6 place. So I'm really not that hung up on 7 the video places as I am as the Crystal's. 8 That's the lesser of two evils and I think 9 it's worth the. chance. We got 13,000 people 10 plus or minus in this town and two aren't 11 going to cut it. According to the six 12 thousand -- 13 MAYOR NORRIS: We are over 12,000. 14 MR. O'MEILIA: Were almost 13,000. 15 MR. KELLY: That's the official 16 University of Florida population, 12,000 17 plus, almost 13,000 plus. If you start 18 getting into Florida, now you go out to 19 Canada and Kentucky and your population is 20 the same year around. You get into Florida 21 and every city has a different population in 22 season. And our's boots up to about 15, 23 16,000. 24 MR. O'MEILIA: 18,500 is what it really 25 is today. We got residential structures LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 17 1 here to fit 18,500 people at the rate of two 2 point three per household. 3 MR. KELLY: If they were to get ahold 4 of our comp plan and see what our so called 5 unofficial population is -- 6 MAYOR NORRIS: If we were just under 7 12, I was just saying I want to go with the 8 two sites and take our chances. Because 9 that's the rule that we're trying to comply 10 with and why do more? Where do you draw the 11 line? You have three. How about four? 12 We'd be even better. But since we have over 13 12 in the summer and well over it in the 14 season, you know, if the basis of us making 15 any change is to try to come to the -- 16 MR. TRINGALI: I have to agree with you 17 Mayor. And my real concern is that -- well, 18 I go have my oil changed at Mobile Express 19 Lube every three thousand miles. I want to 20 see them stay in business. But it's 21 really -- I mean, we have to recognize it's 22 a real risk. 23 MAYOR NORRIS: Maybe do it every 1,500 24 miles. 25 MR. TRINGALI: It's just a risk LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 18 1 because -- 2 MR. O'MEILIA: We could buy it. 3 MAYOR NORRIS: It's not that funny. 4 MR. BAIRD: There's another opportunity 5 and that would be to approach the property 6 owner about a restrictive covenant that the 7 owner would voluntarily place in the 8 property that it would not be available for 9 adult entertainment. We could use it for 10 any other commercial purpose. But the case 11 law has held that even if there is that kind 12 of restrictive covenant on the property, the 13 courts still look at it as available sites. 14 MR. TRINGALI: I mean, wouldn't that be 15 some sort of a bad faith or something if the 16 Village approached Mobile and said, look, we 17 want a covenant from you. Couldn't Carmona 18 or whatever his name is accuse us of 19 torpedoing our own zoning ordinances. 20 MR. BALDWIN:. I would think that that 21 would look pretty bad from the Village's 22 standpoint. The other thing, too, and of 23 course Tom is ahead of me on the case law, 24 is what's a consideration for somebody who 25 already has an existing use, permitted use, LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 19 1 to put some kind of a restriction. 2 MR. TRINGALI: We'd have to pay him. 3 No doubt about it. 4 MAYOR NORRIS: It wouldn't be a 5 requirement of the Village. And property 6 owners do all of the time do declarations of 7 restrictive covenants. 8 MR. TRINGALI: But they don't do it for 9 free. 10 MAYOR NORRIS: Sure they do. They do 11 it for their own property to make sure that 12 it stays the way it is. If they ever want 13 it separated, that's done. So I think you 14 can beat the lack of consideration. 15 MR. O'MEILIA: And perpetuate it. 16 MR. EISSEY: Perpetuity. 17 MR. KELLY: Mobile owns that property 18 by the way. 19 MR. BAIRD: Mobile Oil. 20 MR. KELLY: Yeah. They're the property 21 owner. 22 MR. O'MEILIA: I have a real dread of 23 this thing. But it's not as bad as it could 24 be. 25 MR. KELLY: Let's see how much all of LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 20 800-626-6313 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 1 us are willing to compromise here for a 2 second. Mobile is looking to -- Mobile has 3 got their application in for the Winn Dixie 4 store up on Conrad DeSantis's property, and 5 we got a problem up there. The setback is a 6 hundred feet from U.S. One. But it says the 7 building -- you're going to love this one. 8 It says the building line has to be a 9 hundred feet back. Well, the building -- 10 the little convenience store that goes 11 within the drive-thru station is 117 feet 12 back. 13 They're talking to me and Tom right now 14 about how they can get their overhead canopy 15 into that property by definition and still 16 be about 25 feet inside the setback. In 17 other words, the overhang of that canopy 18 which is a wholly separate structure from 19 the building not even connected goes into 20 that setback by about 25 feet. 21 So they're looking for a 25 foot 22 variance. But they've already been told by 23 the Appearance Board that there's no 24 recommendation on their part. They're not 25 willing to go in front of the Zoning Board. LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 21 1 They don't have the hardship issue in front 2 of them. 3 MR. BAIRD: I don't think the Village 4 would be looking for any quick pro quo from 5 Mobile. I represent Mobile Oil and have 6 represented Mobile Land Development since 7 1993, and they're a very community spirited 8 organization. 9 MS. VASTOLA: Yeah, but that's today. 10 They could be sold tomorrow. 11 MR. TRINGALI: Wait a minute. Let's 12 hear our attorney out. 13 MR. BAIRD: I think an organization 14 like that understands the interest of a 15 community, and being assured that a site 16 that they own that is eligible for adult 17 entertainment not be in the future on the 18 market for that kind of use. And I think 19 that's the spirit in which any discussion 20 with Mobile ought to be approached. Not in 21 some kind of situation where you scratch our 22 back, we'll scratch yours. 23 I don't see any downside to just 24 inquiring to Mobile and saying, hey, you 25 know the Village has changed the zoning with LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 22 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 respect to your parcel, but you might want 2 to give this some consideration for the 3 future and see what happens. 4 MR. BELLY: Our attorney expressed a 5 concern about that. Is that something we 6 should do while we're in this process or 7 wait until after the zoning is permitted? 8 MR. BAIRD: I don't think any of you 9 should have that discussion with Mobile Oil. 10 MR. BALDWIN: We talked about that just 11 a little bit. It seemed to me that anything 12 along that line should be taken up after the 13 litigation is completed and should not be. 14 approached or become a part of our 15 litigation. I think it could make us look 16 like we're in bad faith if it came to light. 17 MR. TRINGALI: I agree. 18 MAYOR NORRIS: I'd rather pursue 19 Mr. Amelia instead of going to them and 20 suggesting. Maybe you could go to them and 21 request a right of first refusal if they run 22 us out. 23 MR. TRINGALI: That may not be such a 24 bad idea. They're building all over the 25 Village. LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 23 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 MR. O'MEILIA: Of course all of that is contingent on winning the lawsuit. They may 3 slap it back the way it was. I don't have 4 that big of a concern about it. All of you 5 know I'm sure Wally's place, Wally Video 6 over here, and there are three or four 7 places in the Gardens. I could ask my 8 grandson and he could tell us every one of 9 them around here within five miles in five 10 seconds. But they don't really concern me 11 near as much as that other place. 12 MR. EISSEY: I'm ready to make a 13 decision and I support the recommendation of 14 the attorney. 15 MR. TRINGALI: Me too. 16 MR. O'MEILIA: I do. 17 MR. EISSEY: And the two sites. 18 MAYOR NORRIS: That's all we're here 19 for Tom? 20 MR. BAIRD: Unless you have questions, 21 I'm agreeable too. - 22 MS. VASTOLA: I don't think we have any 23 choice as much as I hate it. 24 MAYOR NORRIS: We at one point talked 25 about maybe at some point also changing the LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 24 1 zoning with regard to sale of alcohol and 2 those types of -- I'd like to do that, too. 3 MS. VASTOLA: Yeah, how about that? 4 MR. BAIRD: If you want to proceed with 5 that, I would suggest you move forward with 6 that at the same time. 7 MAYOR NORRIS: We can't now. 8 MR. BAIRD: It's not something that is 9 going to be accomplished in time for trial 10 on this. 11 MAYOR NORRIS: Right. 12 MR. BAIRD: But it has worked in other 13 communities. 14 MR. O'MEILIA: Let me tell you about 15 that. We got a few minutes now. I've 16 really been involved in this County 17 ordinance, County adult entertainment 18 ordinance. And I've gone to the 19 municipality twice trying to get them to 20 support change in this County ordinance 21 which we are in. We have stayed in it. We 22 haven't opt out of it. All of the cities 23 are in it unless they opt out. 24 And what's happened down there in the 25 County is the County Attorney and the LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 25 1 District Attorney and the Sheriff have all 2 told the County Commission, hey, we can't do 3 anything with this damn law the way it's 4 written. You got to change it. You got to 5 plug up the loophole. 6 They went to the County Commission and 7 the County Commission said, well okay, you 8 bring us back an ordinance. So they brought 9 back the ordinance and it had over two 10 hundred changes in it. I counted every one 11 of those damn things. It had over two 12 hundred changes. And the County that day in 13 the workshopsaid we're going to forget it. 14 Bring us back an ordinance with these 15 licenses for these dance establishments. 16 They didn't want to fool with it. 17 Now, I've gone to the Municipal Board 18 of Directors twice in treating them to go 19 talk to the County as a Board in an attempt 20 to get them to do it, and they just looked 21 at me. And if you read the minutes. That's 22 why I've been sending you the Municipal 23 League minutes because it's in there that 24 I've gone to the Board. 25 Now, the president of the Municipal LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 26 1 League told me the other day in another 2 meeting that he was going back to Bob 3 Weissman to see what he could do. My 4 suggestion on this point is at this point we 5 ought to seriously consider adopting that 6 ordinance ourselves. 7 MS. VASTOLA: I don't think we have any 8 other choice than to adopt it ourselves. 9 MR. O'MEILIA: Adopt that ordinance and 10 opt out of the County and do our own 11 licensing ordinance. And I know George 12 feels that we shouldn't do that. At least 13 he felt before that we shouldn't do that 14 because the County Attorney was supposed to 15 do the work for us. But obviously they're 16 not going to do it. And they just feel that 17 they lose every time they go to court. 18 MAYOR NORRIS: Do you have a copy of 19 one that was proposed? 20 MR. O'MEILIA: Yeah. I have one on a 21 tape. The only thing is it's on Word 22 Perfect 6.0. 23 MR. TRINGALI: I've got it. 24 MAYOR NORRIS: We've got it at the 25 office. LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 27 1 MR. O'MEILIA: What I was going to do 2 was take it and put it on my Word and update 3 it and make it fit the Village. But can I 4 give it to one of you and you can give it to 5 George. George, what have you got? Have 6 you got Word Perfect? 7 MR. BALDWIN: Yeah, I've got Word 8 Perfect. 9 MR. O'MEILIA: Okay. I've got it. And 10 I really think we need to do that. Because 11 the thing is so full of holes. And I've got 12 a printed copy of it too incidentally if you 13 want to distribute that. 14 MAYOR NORRIS: Yeah. Why don't you do 15 that. 16 MR. O'MEILIA: It's 88 pages long and 17 it's got over two hundred changes in it. 18 But I really think we need to do that. 19 That's what Riviera Beach did. Riviera 20 Beach took that ordinance and adopted it 21 themselves so they could enforce it their 22 own way. But they got rid of that place out 23 on the beach. 24 MR. TRINGALI: This is in terms of 25 selling liquor? LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 28 1 MR. O'MEILIA: This is a licensing 2 ordinance to determine whether you can get 3 an adult entertainment license or not. But 4 it also picks up all these ramifications 5 about whether they can sell liquor, hours of 6 operation, how many people you can have in 7 there, how high the bar can be off -- all 8 this nonsense. 9 MAYOR NORRIS: Let's look at that. 10 MR. O'MEILIA: That's what they call 11 their licensing ordinance. Where we got 12 stuck is we didn't have the zoning ordinance 13 to back that up. We would have been in a 14 lot better shape. 15 MR. BALDWIN: Tom, if I understand your 16 research, the Southern District, the 17 prevailing right now is the five percent 18 rule. The Middle District is the per 19 capita. There's no way we can fit into the 20 five percent so we're working on the per 21 capita and asking them to adopt the Middle 22 District. So I assume what you're saying is 23 that we're not going with the prevailing, so 24 three sites versus two puts us in a stronger 25 arguing position being in the Southern LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 29 800-626-6313 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 1 District. 2 MR. BAIRD: Well, whether or not we 3 were in the Southern District, three sites 4 versus two would put us in a stronger 5 position. I'm of the opinion that land 6 percentage rule is an unreasonable rule of 7 law as applied at least to small 8 communities. And I don't know what the line 9 of demarcation for small is. 10 But in Judge Middlebrook's opinion in 11 the Jupiter case, he referred to the Town of 12 Jupiter which population is about 30,000 as 13 a small residential community. So I'm 14 hopeful that having that opinion to argue to 15 Judge Cook in our case here, certainly if 16 Jupiter is small, then North Palm is small. 17 And I just think that the courts. who 18 have evaluated this law based on cases 19 brought in much larger communities have to 20 start dealing with the facts of smaller 21 communities and the fact that many smaller 22 communities are not intended and never were 23 intended to be full service communities and 24 offered a whole range of goods and services 25 and entertainment that you might expect in a LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 30 1 larger city. 2 And so I think what the courts have to 3 be presented and what the Supreme Court 4 opinion talks about in terms of small 5 residential communities is evidence and 6 facts that show that it would be 7 unreasonable to expect a bedroom community 8 that is largely residential to make, you 9 know, five percent of its land for adult 10 entertainment. 11 And judges have to be reasonable in 12 applying facts to the law I think. And I 13 think if we can present the kinds of facts 14 that I've described for you today in terms 15 of what the Village has done to make its 16 ordinance constitutional, the Village has 17 gone the extra mile. I'm doing my closing 18 arguments now of course. 19 The Village has gone the extra mile in 20 making sites available. And not 21 withstanding that, there are within seven 22 and a half miles eight licensed facilities 23 and 15 other potential sites for these 24 facilities. And the court needs to be 25 reasonably applying the law here. LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 31 1 MR. O'MEILIA: -- decided on nine 2 sites. 3 MR. BAIRD: Twenty-two. 4 MR. O'MEILIA: Was that the Southern 5 District? 6 MR. BAIRD: Yes. 7 MAYOR NORRIS: Are we all set? 8 MR. TRINGALI: All I can say, 9 Mr. Baird, is ifyou were on the bench I'd 10 give you a decision right from the bench. 11 MR. BAIRD: Well, you might be some 12 day. 13 MAYOR NORRIS: Anything else? 14 MR. TRINGALI: I want to thank you for 15 doing an outstanding job on all of the 16 research and the expertise and all of the 17 things that went into this case here. 18 (Whereupon, the proceedings were 19 concluded at 6:45 p.m.) 20 21 22 23 24 25 LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 32 1 CERTIFICATE 2 3 STATE OF FLORIDA 4 COUNTY OF PALM BEACH ) 5 6 I, TRACY LYN BARRETT, Court Reporter and 7 Notary Public within and for the State of Florida at 8 Large, duly commissioned and qualified, do hereby 9 certify that pursuantto a notice to take said 10 hearing heretofore filed, the examination was reduced 11 to writing under my supervision; and that the 12 transcript is a true record of my stenographic notes. 13 IN WITNESS WHEREOF, I have hereunto set 14 my hand and affixed my official seal this 15 August, 1998. 16 17 18 19 5th day of al TRACY I4YN 9ARRETT Court eporter and Notary Public, State of Florida at Large 2 0}����S��ti������5�������������������,��5ss���is���g� s,;;; -.Fyll, Tracy Lyn Barrett 21 t •; 4A' * Notary Public, State of Florida Commission No. CC 597334 ; { '' My Commission Exp. 12/28/2000) 22 ( Bonded Through Fla. Notary Sentice & Bonding Co. ) 23 24 25 LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400