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HomeMy WebLinkAbout03-03-1999 VC SP-M• Present: ROLL CALL MINUTES OF SPECIAL SESSION OF THE VILLAGE COUNCIL OF NORTH PALM BEACH, FLORIDA HELD WEDNESDAY, MARCH 3, 1999 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. PURPOSE OF THE MEETING The purpose of the meeting was to announce a special Attorney -Client session regarding strategy for litigation Crystal's Bar & Grill. Mayor Norris announced that the closed session would take approximately 30 minutes, and would be attended by Special Counsel Tom Baird, Village Attorney George Baldwin, Village Manager Dennis Kelly, Mayor David Norris, Vice Mayor Charles O'Meilia, President Pro Tem Edward Eissey, Councilman Gail Vastola, and Councilman Joseph Tringali. RECESS The Special Session recessed at 6:02 p.m., and reconvened at 6:40 p.m. ADJOURNMENT There being no further business to come before the Council, the meeting adjourned at 6:41 p.m. �( • Kathleen F. KeyCMC, _tact age C 3 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 Linda M. Francis who on oath says that she is Classified Advertising Supervisor 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 Meeting 3/3 in the ---- Court, was published in said newspaper in the issues of March 1, 1999. 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, conunission or refund for the purpose of securing this advertisement for publication in the said newspaper. Sworn to and subscribed before me this 1 day of March A.D. 1999 41 Personally known XX or Produced Identification Type of Identification Produced t C', o4 =uae Karen McLinto» S<a`to Notary .�:olic, State of Florida i, '• v �:',' . Z.1 r;,.t lice sten ND. CC 59t337 , s<'r<nrn° MyCotfu:Isslon Exp. 1ti1�5120'00, S, C:1 at,`,-iS1i:.',,V ;', Hunr,, Service NO. 567441 VILLAGE OF NORTH PALM BEACH 1 PUBLIC NOTICE THE CITIZENS AND PROPERTY OWNERS OF THE VILLAGE OF NORTH PALM BEACH AND ALL I TERESTED_ PERSONS ARE, FSL.EEEBY ADVISED TO TAKE- ffiOTICE THAT_ MAYOR DAVID B�tlORR15 VICErMAYOR of-tR,. O'MEILIA PRESI- DENT PRO TEM EDWARO M. EiSSEY, COUNCILMEN GAIL H. YASTOLA AND JOSEPH A. `TRINGALI WILL CONVENE AN OPEN MEETING OF THE NORTH PALM BEACH VILLAGE COUNCIL ON WEDNESDAY, MARCH I AT WHICH TIME THE VL LAGE 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 ATTORNEY THOMAS J. BAIRD TO DISCUSS PENDING LITIGATION STYLED VILLAGE OF NORTH PALM BEACH V 421 NORTHLAKE BLVD. COR- PORATION D,'B/A CRYSTALS PBgR_A. GRILL. THIS ATTOR- LE EY-CLIEN]' SESSION WILL BE ' PURSUANT 8O ON a499011 A ON • APPROXI- MATELY 6:0019AT APTRTKE VILLAGE P.M., AT THE WAY 1, HALL, 501 U.S. HIGH- WAY NORTH PALM TEACH, - FLORIDA. THE PRIVATE AT- ANTNEPATEDNT SESSIONTIS ANTITHIRTY INTLAST FOR BETRAY (30) MINUTES. ALSO, BE ADVISEDF THAT AT THE CONCLUSIONIENS THIS ATTAP- PROXIMATE SESSION5:30AT AP- PROXIMATELY OONELY RE0 T.M. OR PO SOON THEREAFTER ASI POSSIBLE, THE OINVENE COUNCIL WILL RECONVENE ITS PUALIC MEETINGTERTOWHICH DIS- CUSS ANYN MATTERS WHICH - REMAINe ON ITS AGENDA. Kathleen F. Kell r _ PUB: Village Clerk PUB: The PalmBach Peat Monday. March 1.1999 1 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 2 VILLAGE OF NORTH PALM BEACH 3 ATTORNEY/CLIENT SESSION 4 Council Chambers 5 Wednesday, March 3, 1999 6:00 p.m. - 6:36 p.m. ORIGINAL 8 9 PRESENT: 10 11 MAYOR DAVID NORRIS VICE MAYOR CHARLES O'MEILIA 12 PRESIDENT PRO TEM EDWARD EISSEY COUNCILMAN JOSEPH TRINGALI 13 COUNCILWOMAN GAIL VASTOLA VILLAGE MANAGER DENNIS KELLEY 14 VILLAGE ATTORNEY GEORGE BALDWIN SPECIAL VILLAGE ATTORNEY THOMAS J. BAIRD 15 COURT REPORTER JANE PASTORE 16 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 2 800-626-6313 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 1 PROCEEDINGS 2 - - - 3 MAYOR NORRIS: I will turn it over to Tom, 4 and you can bring us up to date on where we are 5 on the lawsuit, the appeal, what it all means, 6 what we can do now. 7 MR. BAIRD: The notice of appeal was filed 8 by 421 Northlake Corporation, together with a 9 document called application for stay. 10 The application for stay asks the 11 appellate court to stay the closure of the adult 12 entertainment aspect of the business at 13 Crystals. As of 4:30 this afternoon, the 14 appellate court has not ruled on that motion. 15 We have responded to the motion on behalf 16 of the Village, and essentially said two things 17 in response: 18 Their first argument was that they are 19 going to lose their business, and our response 20 was, no, they were licensed as a restaurant and 21 they can continue to operate as a restaurant; 22 therefore, they won't lose their business, so 23 long as they operate consistent with the law. 24 And that's essentially what the judge had ruled 25 in his final judgment. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 3 1 And secondly, they began arguing, really a 2 reargument of their case in circuit court, and 3 we presented as the response that under the 4 Fourth District's law that's not an appropriate 5 good cause for the entry of a stay, that those 6 are issues that the appellate court will deal 7 with on its review of the final judgment and 8 not appropriate for review of whether or not a 9 stay should be issued. 10 If a stay is issued, the request that they 11 have made is that it would be in effect through 12 the mandate of the 4th District, which is 13 essentially the completion of the appellate 14 process. And obviously if we prevail, then they 15 will have to, if they were successful with their 16 stay, they would have to then, after the mandate 17 issues on the appeal, have to stop the adult 18 entertainment aspect of the business. 19 The appellate process is likely to take, 20 unless it's expedited in some fashion, about a 21 year. There are motions that can be filed to 22 expedite the process. 23 I would anticipate that if a stay is not 24 issued, they will seek to have the process 25 expedited and argue that there are significant LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 4 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 issues of constitutional law, and therefore the 2 appellate court should act more quickly than it 3 would otherwise act, because this is such a 4 significant constitutional issue. 5 While we are in this period of time the 6 issues on appeal are exclusively related to 7 whether or not they complied with the Village's 8 zoning code and whether or not they complied 9 with the county's adult entertainment licensing 10 ordinance. 11 And, of course, the circuit court reached 12 the conclusion that they had not complied with 13 either and that they would be enjoined from 14 operating as an adult entertainment 15 establishment until they did comply with those 16 two laws. 17 So that's really in a nut shell where we 18 are at. If you would like me to comment on the 19 final judgment, I will say this about the final 20 judgment: 21 I think that we put on the case that I 22 discussed with you, that we wanted to put on. 23 We were allowed to put on the case we wanted to 24 put on, which was: Not only are there enough 25 sites available within the Village, but as a LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 5 1 kind of added measure there are sites available 2 outside the Village. 3 The final judgment recognizes both that 4 there are sufficient sites within the Village 5 and recognizes that there are sites outside the 6 Village. 7 And I would expect, because the focus has 8 been on the motion to stay, the focus at the 9 appellate level to be on two things: 10 One argument will be that the final 11 judgment was erroneous because the sites 12 available in the Village weren't really 13 available, even though they were designated as 14 available. No one is going to sell Ed Morse 15 Chevrolet, and you can't develop a facility of 16 the kind that they would like to on the Mobile 17 Lube site. 18 And the judge dealt with those issues and 19 cited Supreme Court opinions which say 20 essentially: Tough luck. 21 They will argue that despite that opinion 22 they are really not available, and even the 23 Village's newsletter recognizes that they 24 weren't really available. 25 And I am not sure that's a winning LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 6 1 argument, because I think the Supreme Court 2 opinion is pretty clear that they need to fend 3 for themselves in the marketplace and the 4 Village has no obligation to pick and choose 5 sites that may be more economically suitable to 6 them. 7 The Village's only responsibility is to 8 have a sufficient number of sites that are 9 available. So on the law as I read it, I would 10 find it hard to see that that can be overturned 11 on that basis. And I don't think the final 12 judgment rests upon sites outside the Village 13 exclusively, and so I don't think that that is a 14 winning argument for them, either. 15 The last meeting we had, one of the things 16 that the council discussed was, well, what other 17 improvements, if you will, can we make to the 18 existing adult entertainment regulations within 19 the Village. 20 And the issue that we discussed the most 21 is the ban on alcohol, which many communities 22 have. West Palm Beach just adopted an ordinance 23 and it contains a ban on alcohol. There have 24 been recent opinions out of the federal courts 25 that uphold that. 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 And I guess the question is whether you 2 want to go forward with that at this point while 3 the appeal is pending. Legally I am not sure 4 that there is a problem in going forward with 5 it. 6 I think, though, that if you do move 7 forward with it, you might expect a challenge to 8 it by Crystals. I don't know that anyone else 9 has an interest in it, at least in the Village, 10 in challenging it. But I suspect that they will 11 continue to monitor the Village's activities. 12 And so the question for you, I think, 13 becomes: If you do move forward with 14 legislation that bans alcohol in establishments 15 that provide adult entertainment, are you 16 willing then to defend any litigation that might 17 come your way? 18 Of course, one option that you have is if 19 you enact the legislation and you are sued 20 regarding the legislation, if you elect not to 21 fight it, you can repeal it or you can otherwise 22 amend the legislation so that it's not as 23 objectionable. 24 But it's really a decision for you, as to 25 whether you want to proceed forward, knowing 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 that the possibility is there that further 2 litigation could occur as a result of it. 3 MS. VASTOLA: How can the City of West 4 Palm Beach feel safe about passing it, then? 5 Surely they have this cloud hanging over their 6 heads, the possibility of someone wanting to 7 sue. 8 Is that what you are suing? Do they have 9 anything that is any safer that we would 10 possibly want to look at? 11 MR. O'MEILIA: They don't have an adult 12 book store; do they? 13 MS. VASTOLA: In West Palm Beach. 14 MR. O'MEILIA: Where? 15 MR. BALDWIN: 45th Street. 16 MR. BAIRD: The City of West Palm moved 17 forward. They had a moratorium for a while, and 18 they were examining everything, not just the 19 alcohol ban. And I believe the reason that they 20 feel they won't be challenged is that they 21 essentially vested everybody that was in the 22 pipeline. 23 There was at least one adult entertainment 24 establishment proposed to be located near 25 Rachel's. There is a little office park off of LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 9 1 45th Street behind the Burger King, and there is 2 an adult entertainment facility proposed to be 3 built in there. 4 The city essentially grandfathered that 5 establishment, and because of that, according to 6 the assistant city attorney I spoke with, they 7 believe that they are not going to get 8 litigation, because they are not denying anybody 9 that's interested in coming with the city at 10 this point. 11 MR. TRINGALI: What happened to that 12 famous Rachel's place over there in West Palm 13 Beach? 14 MR. O'MEILIA: Yes, it is on 45th Street. 15 MAYOR NORRIS: Don't they sell alcohol? 16 MS. VASTOLA: They are allowed to continue 17 on. They grandfathered everybody, and they have 18 been grandfathered. 19 MAYOR NORRIS: So everyone that was 20 thinking about it gets to do it. 21 MR. TRINGALI: Just in terms of the 22 appellate process, which is something I know a 23 little bit about, at least in criminal terms: 24 To stay out on bail pending appeal, you have to 25 show that your appeal is taken in good faith on LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 10 800-626-6313 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 1 issues fairly debatable. 2 Is that the same standard here? 3 MR. BAIRD: No. The standard is somewhat 4 confusing. The appellate rule says that the 5 stay must be filed in the circuit court. 6 MR. TRINGALI: Correct. 7 MR. BAIRD: And the circuit court has 8 continuing jurisdiction to hear that. 9 In our case the circuit court already 10 heard the motion for stay and denied it. They 11 then, when they filed their notice of appeal, 12 also filed an application to stay, which recited 13 essentially the same arguments that were argued 14 in the circuit court. 15 The position that I took was that 16 essentially they were asking the appellate court 17 to review the trial court's decision on the 18 motion to stay that was properly filed pursuant 19 to the rule in the trial court. And I argued 20 that the standard of review, therefore, is 21 whether Judge Cook abused his discretion in 22 denying the stay, which of course is a very 23 rigorous standard for anyone to meet. 24 Their reply brief, reply memorandum argues 25 that the standard of review for the appellate LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 11 1 court is the same standard as courts use for a 2 temporary injunction. 3 Which, again, is a pretty rigorous 4 standard for someone to have to meet. They have 5 to show irreparable harm. They have to show 6 that there is a likelihood that they are going 7 to prevail on the merits. They have to show 8 that their harm outweighs the public benefit. 9 And a fourth criteria -- 10 MAYOR NORRIS: When will we hear about 11 getting a decision on that, on the stay? 12 MR. BAIRD: I think a decision on that 13 should be forthcoming fairly quickly, because 14 the appellate court was aware that the stay 15 would expire on February 26. 16 Now, that order on the stay that the 17 circuit court entered, which was just a limited 18 stay to give them time to appeal, was modified 19 last week by Judge Cook, who decided that the 20 safest ground for him was to continue the stay 21 until the appellate court ruled, which is what 22 he did. 23 MR. O'MEILIA: You mean, I thought he 24 originally granted the stay? 25 MAYOR NORRIS: Denied it. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 12 1 MS. VASTOLA: He originally denied it. 2 MR. BAIRD: Granted in part, denied in 3 part. 4 MAYOR NORRIS: Oh, he did. 5 MR. BAIRD: They filed a motion to stay 6 pending appeal, which was denied. 7 MR. O'MEILIA: Yes. 8 MR. BAIRD: But they also asked for a 9 stay. 10 MR. TRINGALI: Until they could appeal 11 that denial? 12 MR. BAIRD: Until they could appeal the 13 final judgment. 14 MAYOR NORRIS: And he granted that? 15 MR. BAIRD: He granted that. 16 Then he modified that, because they 17 couldn't get through the appellate process on 18 the motion to stay before the 26th. 19 MR. TRINGALI: So what's happening is that 20 the Fourth DCA is going to in effect decide 21 whether or not to put everything on hold until 22 they review the entire case. 23 MR. BAIRD: Right. 24 MR. TRINGALI: What do you really think; 25 what is your gut feeling? LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 13 1 MR. O'MEILIA: Before you answer that, let 2 me ask you a little tiny interim thing: 3 Do they have the power to do that, appeal? 4 It seems like that kind of contradicts the 5 whole program. 6 MAYOR NORRIS: Do they have the power to 7 do what? 8 MR. BAIRD: I have not run across any case 9 law that says they don't have the power to do 10 that. 11 The question is whether the standard is 12 are they reviewing the circuit court's action, 13 or do they have the independent authority to 14 enter stays. 15 And there wasn't any case law that came 16 down squarely and says the appellate court has 17 separate authority to review this, which is why 18 I took the position that all they are really 19 doing is reviewing the circuit court's 20 determination, and they can only overturn the 21 circuit court if they find there was abuse of 22 discretion. 23 Now, if I am right on that argument, I 24 don't think there is any way that they will stay 25 pending appeal the final judgment. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 14 1 And I don't believe either, I should say, 2 that under the standard of review that Crystals 3 would like the court to adopt, I don't believe 4 they should be entitled to a stay under the 5 standard of -- it's like a temporary injunction. 6 But I didn't believe, by the way, that we 7 should not have been granted a temporary 8 injunction in the first place. 9 Just as an aside, two cases came out of 10 the Fifth District, Seminole County, within the 11 last two months with issues nearly identical to 12 ours, where the court, the circuit court granted 13 a search practitioner injunction, and the Fifth 14 District Court of Appeals upheld the circuit 15 court's grant of an injunction. 16 I filed notice of supplemental authority 17 to our district court, the 4th District, just to 18 let them know, you know, of the support. 19 MR. TRINGALI: You are talking about a 20 temporary injunction to put these guys out of 21 business until the case gets heard? 22 MR. BAIRD: Until they get an adult 23 entertainment license. 24 MR. O'MEILIA: So that's supporting -- 25 MR. BAIRD: Right. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 15 1 MR. EISSEY: You notified the 4th 2 District. 3 MR. BAIRD: One of my arguments on appeal 4 will be we should have been granted the 5 temporary injunction under the law in the first 6 place, but we had to endure two years of 7 continuing trials, et cetera, while they 8 continued to make a profit. 9 MR. TRINGALI: So I think what you are 10 saying is that you think we stand a pretty good 11 chance of them not restraining, as it were, 12 Judge Cook's order, you think that they will 13 not -- 14 MAYOR NORRIS: Not get a stay. 15 MR. TRINGALI: -- not get a stay? 16 MR. BAIRD: That's what I think. I think 17 the law compels them to not grant the stay. 18 MR. O'MEILIA: Because they can't meet 19 those standards? 20 MR. BAIRD: Right. 21 MAYOR NORRIS: Good. 22 MS. VASTOLA: Good news. 23 MR. TRINGALI: We should know pretty 24 quick. 25 MR. BAIRD: I would expect something. I LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 16 1 thought -- Wednesday is opinion day in the 2 district court, and I thought we might have 3 something today. But we didn't, so... 4 MR. O'MEILIA: I thought the magic day was 5 the 28th of February. 6 MR. BAIRD: No. The 26th was the date in 7 which they had to file the appeal. 8 MR. TRINGALI: But Judge Cook took the 9 heat off of that. 10 MR. BAIRD: Right. Which has been 11 consistent with his rulings throughout the 12 proceedings; that he has taken the safe ground, 13 which in some respects has benefited the 14 Village. 15 Because if, for example, he had not 16 allowed Crystals to put on some of the evidence 17 that they wanted to put on, then he would -- and 18 we got the final judgment that we received -- 19 then there would be arguments that they could 20 make about errors of law that were made at the 21 trial court. 22 By letting all of the evidence in, he 23 essentially has eliminated some of those 24 arguments that we would have otherwise had to 25 face and brief. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 17 1 MAYOR NORRIS: Okay. Any other questions? 2 MR. TRINGALI.: Personally, I don't think 3 we should get into this -- 4 MAYOR NORRIS: Changing the -- 5 MR. TRINGALI: -- touch this alcoholic 6 beverage thing with a 20 foot pole, until that 7 gets decided. 8 MAYOR NORRIS: Yes, I agree. 9 MR. TRINGALI: Because all we are going to 10 do is muddy up the waters. Let's keep this nice 11 and clean. 12 MR. BALDWIN: I agree. 13 MR. O'MEILIA: I don't know that it does 14 any good anyway. The only good it would do is 15 if somebody could buy out Ed Morse and build 16 another one. 17 MR. TRINGALI: If we are going to win, 18 let's win clean and -- 19 MAYOR NORRIS: And then do it. 20 MR. TRINGALI: -- then resolve it. Then 21 we do it. 22 MR. O'MEILIA: Maybe we should have the 23 ordinance prepared and ready to go. 24 MR. TRINGALI: Preparation doesn't hurt. 25 MR. O'MEILIA: We have it on the shelf. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 18 1 MAYOR NORRIS: Ready to throw it on the 2 agenda at the right time? 3 MR. O'MEILIA: At the same time maybe we 4 ought to have a moratorium prepared, too; have 5 the moratorium until we can pass the ordinance. 6 MAYOR NORRIS: Moratorium on what? 7 MR. O'MEILIA: On issues of any licenses. 8 MR. TRINGALI: Tom is telling us -- 9 MS. VASTOLA: Did you say that or not, 10 that it's going to be a good year before this 11 appeal is heard? 12 MR. TRINGALI: Yes. 13 MR. KELLEY: But the stay can be lifted 14 quickly. 15 MS. VASTOLA: Are you talking about 16 waiting for the stay or end of the appeal? 17 MR. TRINGALI: Wait until the end of the 18 stay. 19 MS. VASTOLA: The stay is a different 20 thing. I thought you were talking about the 21 appeal. 22 MR. TRINGALI: Are we talking about the 23 end of the stay or the end of the appeal? 24 MAYOR NORRIS: For what? 25 MR. TRINGALI: For the alcohol ordinance. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 19 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 MAYOR NORRIS: I thought you were talking 2 about the end of the appeal. 3 What were you talking about? 4 MR. TRINGALI: I was talking about the end 5 of the stay, because at that point it's just an 6 ordinary grind them out appeal. I mean, the 7 Fourth DCA is -- 8 MAYOR NORRIS: The only argument against 9 is that they could try to muddy up the appeal 10 with filing a lawsuit on that new ordinance, and 11 then try to somehow say that they should hold up 12 on -- I don't know how -- hold up on appeal 13 while we fight over that ordinance, because the 14 two of them might be combined. 15 I don't think it matters. 16 MS. VASTOLA: You are talking a year 17 difference one way or the other. 18 MR. TRINGALI: My point is the district 19 court of appeal, they look at the record, 20 period. 21 MR. BAIRD: Right. 22 MR. TRINGALI: End of story, right. And 23 if you have some other case with another case 24 number, they say, "Fine. When we get to that 25 one three years from now, we will look at that LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 20 1 one." 2 That's been my experience with them. 3 MR. BAIRD: There have been, of course, 4 lawyers who have sought to inject things into 5 the record that don't belong there. 6 If you wanted to take sort of a safer 7 ground, you could wait until the briefing is 8 completed and then enact the alcohol ban. That 9 would be some time -- it's going to be 70 days 10 or thereabouts before their initial brief is 11 filed. 12 MAYOR NORRIS: I don't have a strong 13 feeling either way. I don't really have a 14 problem going ahead now and doing it. I don't 15 think there is that big of a risk. 16 MR. TRINGALI: Let's wait and take the 17 advice of our counsel, who has been so good up 18 until now. 19 MR. BALDWIN: I am kind of inclined to 20 wait. 21 MAYOR NORRIS: Until when? 22 MS. VASTOLA: Until the appeal or brief. 23 MR. BALDWIN: I think I would prefer to 24 wait until we get the final decision. 25 One of the questions is: Let's assume LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 21 1 they win, the other side wins on this thing. 2 God knows, then, if we are going to pass the 3 alcohol ban, are we going to grandfather them or 4 do we just want to take them on in court again? 5 I just think it's pretty unclear. 6 MR. O'MEILIA: Can you make it retroactive 7 legally? I mean, make it apply to somebody 8 that's in existence? 9 MR. BALDWIN: Well, I mean, I think that's 10 one of the problems you have to consider, and 11 apparently the reason why West Palm exempted all 12 of the clubs that were serving alcohol -- 13 MR. O'MEILIA: Maybe we can give them 14 seven years to comply like we did with Milton 15 with signs. 16 MR. BALDWIN: I have never seen -- 17 MAYOR NORRIS: What is the problem with 18 grandfathering them in? I mean, all we have 19 right now is the one. 20 MR. BAIRD: Or you could grandfather all 21 legally operating. 22 MR. BALDWIN: But if you get the final 23 loss, then you might want to not grandfather 24 them in. 25 MR. TRINGALI: Then you don't have to LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 22 1 worry about it. 2 MS. VASTOLA: If we lose. 3 MR. TRINGALI: They become a restaurant if 4 we get the final loss. 5 MS. VASTOLA: If they lose, a loss is 6 called they lose; is that what you are saying? 7 MR. TRINGALI: Yes. 8 MAYOR NORRIS: No. 9 MS. VASTOLA: Being one of the few 10 attorneys in the room... 11 MAYOR NORRIS: Is that what you are 12 saying, if they lose or if we lose? 13 MR. BALDWIN: I was thinking if they lost. 14 MAYOR NORRIS: If they lost, then they 15 can't do it at all. 16 MR. BALDWIN: They would be a restaurant 17 and serving alcohol. 18 MAYOR NORRIS: That's all right. 19 MR. TRINGALI.: They could go ahead with 20 the Mandarin restaurant. 21 MAYOR NORRIS: They are just a restaurant; 22 I don't care about that. 23 MR. TRINGALI: If they are just a 24 restaurant, who cares? 25 MR. BALDWIN: I think they would push the LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 23 1 law, without alcohol. 2 MAYOR NORRIS: We are not suggesting that 3 you switch, you amend the code to say you can't 4 sell alcohol, period. 5 We are saying you can't sell alcohol at an 6 adult entertainment facility. So if they lose, 7 they are not an adult entertainment facility 8 anymore. 9 MR. TRINGALI: If they lose the appeal, 10 they will slink out of town so fast, you won't 11 even see them. It's really -- that's going to 12 happen. 13 MS. VASTOLA: I think we ought to go ahead 14 and do it. 15 MR. TRINGALI: They don't want to run a 16 restaurant. 17 MR. O'MEILIA: Why don't we prepare the 18 papers for a moratorium and put it on the shelf? 19 MAYOR NORRIS: Put it on the shelf. 20 MR. O'MEILIA: Just have it ready to 21 immediately go with it. We can make the 22 decision the minute the stay is either granted 23 or not granted. 24 MAYOR NORRIS: So, George, you are saying 25 you would prefer to wait until the appeal is LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 24 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 over altogether? 2 MR. BALDWIN: I would. But I mean, if you 3 want to do it after the temporary, I mean, we 4 can consider it. 5 MAYOR NORRIS: Your suggestion is wait 6 until after the -- 7 MR. TRINGALI: Wait until the briefs are 8 in. 9 MAYOR NORRIS: The briefs are in. 10 MR. BAIRD: I was suggesting that as kind 11 of a compromise between filing it after the stay 12 is decided and after the lawsuit is decided, 13 only because the issue is raised if they might 14 improperly inject that into the brief, to try 15 and put the Village in a bad way. 16 MR. TRINGALI: But that is a great 17 suggestion, Tom, because once their reply brief 18 is filed, that's it. The record is done. There 19 is no way of getting anything else into it. 20 MS. VASTOLA: Then wait until the brief, 21 do the compromise -- 22 MR. TRINGALI: I tried that one time. 23 Damn near got my head handed to me by one of the 24 judges: .Is that in your brief? Is that in the 25 record? Your Honor, no, Your Honor. Don't you LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 25 1 know better than that? 2 MR. BAIRD: Do you want your opinion now? 3 MR. O'MEILIA: Doesn't that county 4 ordinance, doesn't it prohibit alcohol anyway, 5 or not? 6 MR. BALDWIN: No. 7 MR. O'MEILIA: The way that reads, it's 8 really ambiguous. 9 MR. BAIRD: It's really a confusing 10 ordinance. But it's not yours, so it's really 11 of no consequence. 12 MR. O'MEILIA: I am talking about the 13 regulatory ordinance, which is ours. We didn't 14 opt out of it. 15 MR. BALDWIN: We didn't opt out, so we are 16 automatically under it until they amend that 17 part. 18 MR. BAIRD: I haven't read it as 19 prohibiting adult entertainment where alcohol is 20 served, and judging by the places that are 21 operating in the county, it doesn't appear 22 anyone else is reading it that way. 23 MR. O'MEILIA: When you really read that 24 thing, it talks about dancing, no alcohol when 25 certain types of dancing are going on. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 26 FORM C-100 - LASER REPORTERS PAPER & MFG. CO. 800-626-6313 1 That's what I am saying. I don't know 2 whether you have looked at it from that angle or 3 not. It is ambiguous. 4 MR. BAIRD: The way I am looking at it is 5 that T's Lounge has dancing and it has alcohol. 6 Club Diamonds has dancing and alcohol. And you 7 can go right down the list. 8 MR. O'MEILIA: You talk to the sheriff. 9 We think they are breaking the law, but any time 10 we do something about it, the district attorney 11 refuses to challenge it. 12 MR. BAIRD: Let me say this: If you want 13 to ban alcohol in adult dancing establishments, 14 the best way to do it is to enact your own 15 ordinance and not rely on the county's, because 16 obviously there is a question, at least a 17 question about how you read the county's 18 ordinance. 19 MS. VASTOLA: Why don't we do it after the 20 brief? That's a compromise. Why don't we file 21 an ordinance after the brief? 22 MR. TRINGALI: I like that idea, Tom. 23 MS. VASTOLA: Let's do that. 24 MR. TRINGALI: It keeps the heat on. 25 MAYOR NORRIS: How long is that? LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 27 1 MS. VASTOLA: 70 days. 2 MR. TRINGALI: No, 70 plus 20 plus 10, and 3 that's if everybody doesn't get extensions. 4 MR. BAIRD: Right. 5 MAYOR NORRIS: 70 plus. 6 MR. TRINGALI: It's 50 days to file the 7 record, then 20 days to file the initial brief, 8 then 20 for the answer brief, then 10 for the 9 reply. That's if nobody asks for an extension. 10 MAYOR NORRIS: So it's like four months. 11 MR. TRINGALI: If you start asking for 12 extensions -- 13 MR. BAIRD: Unless the stay entered, the 14 Village won't be asking for extensions. 15 MAYOR NORRIS: Right. 16 MR. BAIRD: They are not going to ask for 17 extensions if there is no stay. 18 MR. O'MEILIA: They are going to ask for a 19 hurry -up. 20 MR. BAIRD: They want to move it along. 21 MR. TRINGALI: So you're probably looking 22 really at three months. 23 MAYOR NORRIS: Three months is the -- 24 going to take us two months to get through doing 25 it. So another month or so, we can start it. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 28 1 MR. BAIRD: You want to proceed with it 2 only if a stay is not entered or -- 3 MS. VASTOLA: We want to proceed with it, 4 period. 5 MR. BAIRD: Okay. 6 MAYOR NORRIS: Yes, I think that's what we 7 are saying. 8 Is that what everybody wants? 9 Yes, okay. 10 Anything else? 11 MS. VASTOLA: Anything else? 12 MR. BAIRD: Let's eat. 13 MR. O'MEILIA: I've got a question, just 14 one question: 15 We discussed the liquor license the last 16 time, and we got a memo -- 17 MS. VASTOLA: I thought we just discussed 18 that. 19 MR. O'MEILIA: -- from Hogart about the 20 temporary liquor license. 21 MAYOR NORRIS: Oh, about their license. 22 MR. O'MEILIA: The existing -- 23 MR. BAIRD: We really need to discuss 24 stuff that's related to this litigation in this 25 session. We get too far afield. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 29 1 MAYOR NORRIS: That's not related. 2 MR. O'MEILIA: You think that's not 3 related? 4 MAYOR NORRIS: Their existing license? 5 MS. VASTOLA: They only have a temporary 6 license, is all they have. 7 MR. EISSEY: Which has become permanent by 8 choice of theirs. 9 MR. BAIRD: I am not sure it's related. 10 MS. VASTOLA: Can someone check into that 11 and get back with us on it? 12 MR. O'MEILIA: Tom did. He checked on it 13 and sent us a memo on December the llth. 14 MAYOR NORRIS: Maybe George needs to look 15 at that. 16 MS. VASTOLA: Can you look into that, 17 George? 18 MR. EISSEY: As I recall, the temporary 19 license would have expired, but they kept 20 continuing and nobody did anything about it. 21 Is that correct? 22 MR. O'MEILIA: That's always been my 23 attitude. 24 MAYOR NORRIS: Let's not talk about that 25 anymore. LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 30 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 there? there. MR. KELLEY: Can we talk about it out MAYOR NORRIS: We can talk about it out MR. BAIRD: That's it. (Thereupon, at 6:36 o'clock p.m., the meeting was adjourned.) LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401 31 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 4/1/0/\-X2 16 17 18 19 20 21 22 23 24 25 Dated this 31st day of March, 1999. Jane Pastore, RPR LEY AND MARSAA COURT REPORTERS, INC. 1551 FORUM PLACE, SUITE 500-B WEST PALM BEACH, FLORIDA 33401