04-09-1998 VC REG-MMINUTES OF REGULAR SESSION
. OF THE
VILLAGE COUNCIL OF NORTH PALM BEACH, FLORIDA
HELD THURSDAY, APRIL 9, 1998
Present: 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
ROLL CALL
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 ofi 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. fior 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 IMPOUNDMENTAND 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 H63827 - HOMEOWNERS
PROTECTION ACT
Councilman Tringali moved that Resolution 17-98 entitled:
i
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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 Cle
• 5
THE PALM BEACH POST
Published Daily and Sunday
West Palm Beach, Palm Beach County, Florida
• PROOF OF PUBLICATION N0
600803
.
VILLAGE OF NORTH PALM
STATE OF FLORIDA BEAOH
vuauc NDncE
TXE GTIZEN9 AND PROPERTY
i iwr~Y'~~ ~ ~ n•~
CO V l~ t f OF PALIYL BEA OWNERS OF TXE WLLAGE OF
l.i1 NORTH PALM BEACH AND ALL
Before the undersigned authority personalty appeared Chris Bull who on oath says that she is INTERESTED PERSONS AAE
HEREBY ADVISED ro TAKE
Classified Advertising Manager of The Palm Beach Post, a daily and Sunday newspaper NOTICE THAT YAYOR DAVID
e. NORRIS, VICE-MAYOR
published at West Palm Beach in Palm Beach County, Florida; that the attached copy of CHARLES R. O'MEIL10. PRE84
DENT PRO TEM EOWAIID M.
advertising, being a Notice in the matter of Open Meetine in the --- Court, published in said EISSEY, COUNCILMEN GAIL H.
vASTOU n++D JOSEPH A.
newspaper in the issues of April 5, 1998. TRINGALI. WILL CONVENE AN
OPEN MEETING OF TXE
AfFant further says that the said The Post is a newspaper published at West Palm Beach, in said NORTH PALM BEACH VILLAGE
counclL DN TXUasoar.
Palm Beach County, Florida, and that the said newspaper has heretofore been continuously ATRV%H CH911ME THE LLwOE
published in said Palm Beach County, Florida, daily and Sunday and has been entered as second COUNCIL WILL ANNOUNCE
ITS INTENTION TO MEET iN A
class mail matter at the post office in West Palm Beach, in said Palm Beach County, Florida, for PRIVATE ATTORNEY-CLIENT
sESSIOH w1TX WLUCE MAN°
a period of one year next preceding the first publication of the attached copy of advertisement; aGER DENNIB W. KELLY, ITS
VILLAGE ATTORNEY GEORGE
and affiant further says that she/he has neither paid nor promised any person, firm or W. BALDWIN, AND ITS LITIGA-
TION ATTORNEYS THOMAS J.
corporation any discount rebate, commission or refund for the purpose of securing this BAIRD AND MARK HEIF
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advertisement far publication in the said newspaper I
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STAY. 388.011(8) ON APRIL 9,
1988, AT APPROXIMATELY
8:00 P.M., AT THE VLLAGE
HALL, 501 U.S. X16HWAY t,
Sworn to and subscribed before this 6 da of A ril
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1998
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Personally known XX or Produced Identification SESSION AT APPROXIMATELY
9:00 P.M., OR AS SOON
• THEREAFTER AS POSSIBLE,
Type of Identification Produced TXE VILLAGE COUNCIL WILL
_ „~ ~,
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_ 1i~ MEETING TO DISCUSS ANY
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SunCaY. APIII E. 1998
•
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VILLAGE OF NORTH PALM BEACH
ATTORNEY/CLIENT SESSION
Council Chambers
Thursday, April 9, 1998
8:05 p.m. - 9:05 p.m.
PRESENT:
1
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
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P R O C E E D I N G S
MAYOR NORRIS: We are now in our
attorney/client session. Present is myself,
Mayor Norris, Vice Mayor O'Meilia, President Pro
Tem Eissey, Councilman Vastola, Councilman
Tringali, Village Attorney George Baldwin,
Village Manager Dennis Kelly, Special Village
Attorney Tom Baird.
And with that said, I will turn it over,
I guess to Mr. Baird.
MR. BAIRD: Thank you, Mayor.
I real briefly want to give you just the
background of where this case started and where
it has been and where it is now.
Prior to my engagement by the city,
Crystal's had been operating for approximately a
year to a year and a half as an adult
entertainment facility in the Village without
approval and illegally.
The first thing after filing the lawsuit
that we attempted to do was to obtain temporary
injunction. And at that hearing we did obtain
an injunction, but it was a limited injunction
related to building and fire code violations.
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The burden on one seeking temporary
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injunction is very high or a great burden, and
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you have to demonstrate, among other things, by
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clear and convincing evidence that you are
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entitled to the temporary relief that you are
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seeking.
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In our case Judge Cook held that although
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we had demonstrated building and fire code
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violations, we had not demonstrated zoning code
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violations. And primarily he concluded this
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because of the argument of counsel regarding the
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Renton case, which is a city in Washington and
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it's the leading supreme court case in this
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area.
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In that case the court set a fairly bright
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line test for when you have a valid
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constitutional ordinance and when you don't.
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And in that court case the court said if
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five percent of your land area within your
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village is available for adult entertainment,
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you pass constitutional muster.
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If you have less than five percent of the
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land set aside that may be available for adult
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entertainment, you do not.
25
In our case it was clear to Judge Cook,
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who is very familiar with the Village, that
having one site available in the Village of
North Palm, given the surrounding land mass,
that it probably was not going to meet
constitutional muster.
In that respect and to some extent he did
the Village a favor by not deciding the case at
that time on the temporary injunction hearing
and by setting the balance of the case, that is
the zoning issue for trial.
Since that time I have made use of the
time we have between then and trial working with
the Division of Alcohol Beverages and Tobacco,
and filed three administrative complaints on
behalf of the Village against the Crystal's
establishment related to lewd entertainment
occurring within the facility.
The complaints led to eventually a consent
order entered by the state with Crystal's which
required Mr. Carmona, who is the operator/owner
of the establishment and the officer and
director, and I believe sole officer and
director of the Coe and Coe Enterprises
Corporation that runs and owns Crystal's -- the
order revoked Crystal's liquor license.
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However, it gave Crystal's 60 days to transfer
that license if and provided they transferred
that license to someone, not Carmona, and no
other officer and director of Coe and Coe that
would have an interest in the new business.
So they did transfer, that is Coe and Coe
did transfer that liquor license. They did so
by creating a new corporation called 421
Northlake Corporation. They transferred the
license in November of 197 and have continued to
operate the establishment as before.
What that did, though, was once the liquor
license was transferred and Carmona and Coe and
Coe got out of the business, we had a lawsuit
against Coe and Coe and Carmona.
So the pleadings at that time had to be
amended, so that we had the correct defendant;
otherwise, we didn't have standing to proceed
with our litigation.
We did amend the complaint, substituted
the 421 Corporation as the party defendant, and
on the eve of trial -- actually docket call for
trial, 421 filed a motion to continue the trial,
arguing that there had been no discovery done
with respect to 421 Corporation.
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And Judge Cook granted that motion and
continued the trial.
It now appears that a trial, if there is
to be one, would be on the June docket, the
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
preliminary injunction hearing, there is only
one site that's available within the Village for
adult entertainment.
The first defense or argument that was
researched and explored to determine whether we
might be able to prevail, irregardless of only
having one site, was to look at the availability
of other sites in proximity to the Village but
not within the Village.
And the argument would have been and still
can be made, but it won't be a successful one,
is that there are a number of opportunities for
one who wants to take advantage of them in West
Palm Beach or unincorporated Palm Beach County.
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The federal district courts have come down
with opinions in the last two years that have
clearly said, in Florida, that have clearly said
that's not an option.
And so trying to put on evidence in that
regard is not likely to be successful. It's not
likely to be even considered to be relevant by
the court.
So we are left with: Are there any other
sites in the Village other than the current site
location?
Which is really where Adult Video
Warehouse is. The two sites are within 2,000
feet of one another, which is not permitted by
your ordinance. But because they are located so
close to one another, you can only fit one in
that portion of the Northlake corridor there.
If they were not located so closely
together, it's possible that you could get two
establishments in there.
The important thing is in the court's test
on how they apply this, whether there are enough
alternative available sites is this:
There are two approaches that the federal
courts have taken. One approach is a per capita
LEY AND MARSAA COURT REPORTERS, INC.
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approach, where they say the population of the
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village is 12,000, there is one site, one site
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per 12,000 is either enough or it's not enough.
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The court cases in Florida, the most
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recent case is a case out of the Southern
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District, and I will get to that in a minute.
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But the case that preceded it is out of the
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Middle District of Florida, the City of St.
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Petersburg.
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And in that case the court held that one
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site per 12,000 was not enough, was
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unconstitutional. The court went on to review
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the case law in that field in Florida, and
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concluded that a range of one facility per two
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thousand to seven thousand population fell
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within constitutional parameters.
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But if you were above one to seven
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thousand, as St. Pete was, you were outside of
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those parameters and your ordinance was
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unconstitutional.
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So the Village's position at this point is
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one site, population of approximately 12,000.
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To get into a constitutional arena here, at
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least one more site would have to be available
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within the Village, and probably two more,
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depending on where they are located, would be
preferred.
The problem with that approach is that the
Southern District of Florida, which is the court
and the jurisdiction that we fall within in the
federal court system, has said that the
population or per capita approach is not the
correct or appropriate way.
They want to follow more closely the
Renton logic of looking at what percentage of
land is available within any given jurisdiction.
Nevertheless, if the Village in my opinion
is to prevail in this, the best argument and
perhaps the only possible successful argument
that can be made is on this per capita approach.
And so the question arises: Are there any
other sites other than the present location that
might be available?
In order to determine that we engaged the
services of Jim Fleishman, a planner who is
familiar with the Village, to look at all of the
commercial properties within the Village.
And what -- there have been, of course, as
you know, a couple of annexations since you
adopted the ordinance -- Section 45-20 of your
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Village.Code.
What we have determined is we do have, we
do have the one site available. We also have --
this is the DeSantis property or the property
where originally the Target store was targeted
for; now I believe it's my understanding it has
approval for a shopping center.
This area, according to the way the
Village has applied its code, a portion of this
area would be available in one of the bays if an
adult entertainment facility operator came in to
find out whether or not he or she could operate
such a facility there.
It would have to of course go through the
approval process of the Village council, but the
key here is that it is potentially available.
It doesn't have to be in the market necessarily
available. There could, for example, be
covenants that restricted what kinds of
businesses could go in this shopping center.
.And --
You have a question, Dr. Eissey?
COUNCILMAN EISSEY: I just want to know if
you mind us asking questions as you go, or would
you prefer to do your whole presentation and
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then have us ask questions?
MR. BAIRD: I think I am almost done, so
if you could hold it for just a minute.
COUNCILMAN EISSEY: I would be happy to.
MR. BAIRD: If there were covenants, for
example, despite the fact that covenants say
that no adult entertainment could occur within
this shopping center, the courts have said
that's not a problem in terms of how they are
going to interpret the law.
The potential problem is that there is
that facility -- I want to get this name right
-- Our Lady of Florida Spiritual Center, that is
located close by.
Now, your ordinance says that worship
centers -- sets up a standard of proximity
between adult entertainment and worship centers.
It is my understanding that this facility no
longer really operates as a worship center as
much as it does a meeting place for folks. They
may be discussing religious matters there, but
it's not in the conventional sense a church.
And so we believe if that's the
interpretation applied by the Village, and
checking with Tom Hogart and Jim Fleishman, they
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both believe that that's a reasonable
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interpretation and would be an interpretation
3
that could be applied, then this site would meet
4
all of the ordinances and standards that exist.
5
The second site is really two sites down
6
here. This is the Citco station on the corner
7
of Prosperity Farms and Northlake. Next to it
8
is, I think it's Eyeglass World. And then next
9
to it is another facility.
10
COUNCILMAN TRINGALI: Express Lube.
11
MR. BAIRD: Express Lube.
12
In back of it is Aldrich Rental.
13
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
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subdivided, then the court would include that
2
and accept that as a site.
3
Given the Village's position regarding
4
adult entertainment, it would seem that it would
5
be unlikely that the Village would willingly
6
agree to a subdivision of that site to make that
7
site available for adult entertainment.
8
And if that were the testimony given to a
9
court, then the court would be hard-pressed to
10
accept that site as one for inclusion.
11
The other site -- and these sites were
12
annexed, by the way. The other site is in this
13
area right here (indicating). It meets the
14
requirements except there is a residential, an
15
occupied residential structure. That structure
16
is within 200 feet of the lot line of this.
17
It is the only instance in the entire
18
Village where the criteria of being within 200
19
feet of a preexisting residence is applied. And
20
so if the Village code was amended to delete
21
this requirement, then this site would meet the
22
zoning requirements, and you would not be
23
risking anything elsewhere in the Village,
24
because this is the only location where that
25
occurs.
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That's a rental property. It's a
nonconforming use. And it probably ought to be
a commercial use anyway, but the owner of that
property has been apparently leasing that
property for some time.
It's not, according to what I understand,
necessarily an attractive structure, but it
exists, and because of this particular provision
of the code, that site in this southern part of
the Village would not be eligible.
So in summation: If the Village is to
have a good chance, really any chance of
prevailing in this litigation, the action that
you would need to take would be to authorize an
amendment of Section 45-24 A of your Village
Code to delete the provision that requires -- or
prohibits the location of these facilities
within 200 feet of a preexisting residence.
By the way, residential is still protected
because there is a requirement about residential
zoning districts. So in deleting that provision
you are not going to be risking other people who
live in residential areas.
That's the action you would have to take,
and although the Village council would not have
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to take this action, it would have to be
understood that the Village is not applying a --
not considering Our Lady of Florida Spiritual
Center --
COUNCILWOMAN VASTOLA: The monestary,
everybody knows about the monestary.
MR. BAIRD: The monestary.
(Continuing) -- as a church.
With those two criteria, then, you have
three sites per 12,000 or one site per 4,000
and you fall within constitutional parameters
and you give the Village the best chance of
prevailing in the litigation.
The last thing that I would say about it
is that there is a counterclaim that has been
filed by the Defendant, 421 Northlake. That
counterclaim alleges violations of their first
amendment rights and asks for damages in the
form really of injunctive relief from the
Village from applying that, not damages. But it
also asks for attorney fees.
If they prevail on that counterclaim under
Section 1988 of the Federal Code, in all
likelihood the court will be awarding attorney
fees against the Village for the cost of the
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attorneys' time and effort in prosecuting that
counterclaim.
MAYOR NORRIS: Dr. Eissey?
COUNCILMAN EISSEY: I have two questions,
if I may.
Up there where the Target store area is,
is that not extremely close to where Benjamin
School is?
COUNCILWOMAN VASTOLA: It's right across
the street.
MR. BAIRD: Yes.
COUNCILMAN EISSEY: So how can we have it
-- if we are concerned about the monestary, how
could we have it that close to a school?
MR. BAIRD: The separation requirements
for a religious institution are 500 feet.
Let's see. The school --
COUNCILWOMAN VASTOLA: The school is 500
feet also; isn't it? If I remember right, I
think it's 500 feet also.
Isn't it, Charley?
COUNCILMAN EISSEY: Not that far away from
it.
COUNCILWOMAN VASTOLA: You don't
remember --
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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.
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And I just want the council to know how I feel
about it.
I wouldn't want it anywhere near -- I've
got grandkids up there, and I definitely would
not want to have it in an area that even that
they know that it's there, that close to a
school.
MAYOR NORRIS: Can I say something?
I don't think -- you are not suggesting
that we make any change or amendment to allow
that in that area; you are suggesting that that
may be an area under our code that really does
permit:
Is that what you are saying?
MR. BAIRD: Yes, sir.
MAYOR NORRIS: The argument is that he is
trying to find another one or two areas that, as
it exists now, the code exists --
COUNCILWOMAN VASTOLA: That ethically --
MAYOR NORRIS: -- it would be permitted.
So he is not suggesting a change; he is
saying that may be one that is permitted now.
COUNCILMAN EISSEY: But if it is
permitted, if I may continue for just a moment,
please, if it is permitted, you can bet your
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sweet bippy that somebody is going to try to get
in there, and even close down below.
My second question is: Where the adult
book store is located now, and Crystal's is very
close to it, are we trying to seek another
possible area just so that we will meet the
court order that there are two places?
I read the thing carefully, but I don't
quite understand why we are trying to find
another area that may be permitted to build
another adult book store or another -- are we
going to attempt to move Crystal's or move the
adult book store?
MR. BAIRD: No.
COUNCILMAN EISSEY: I didn't think so.
MR. BAIRD: We are not trying to find any
area to relocate or to encourage someone to
locate adult entertainment.
We are only trying to find those areas
which currently exist in the Village that, if
someone wanted to open such a facility and they
came to the Village, based upon all of the
criteria in the code, where are the locations
they could locate.
They don't have to be locations that -- I
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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
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entertainment?
COUNCILMAN TRINGALI: No, I don't think
SO.
MR. BAIRD: I would suggest that while you
might encourage that privately, that doing so
publicly might create some problems.
MR. KELLY: Almost in the contract zoning
at that point.
MAYOR NORRIS: Yes.
Are you done, Dr. Eissey?
COUNCILMAN EISSEY: Yes, sir.
MAYOR NORRIS: Mr. Tringali?
COUNCILMAN TRINGALI: As I understand it,
Tom was kind enough to supply me with the
memorandum of law and the cases, and I did read
them. And it was an educational experience. I
couldn't believe the federal courts were
monkeying around with things like population and
how many adult book stores...
He was telling me this on the phone and I
thought this is ridiculous. What federal court
would do this?
By God, he was right.
MR. BAIRD: They all do.
COUNCILMAN TRINGALI: There are actually
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written opinions about this stuff.
But as I understand it, after going
through that and after speaking with you and
after listening this evening, what you are
saying is in the course of the argument in the
Southern District Court you want to be able to
say, well, certainly there are these other
available areas, judge. Okay. Here is one,
here is one, here is one.
The fact that those areas are -- and the
courts have said the fact that those areas are
not economically available is irrelevant. Okay.
The fact that Eyeglass World doesn't plan to
sell any time within the next hundred years,
that's too bad for you. You, Mr. Adult Book
Store, you have to make them a better offer.
What the council is saying to you, Tom, I
think, because I get a cold feeling in my heart,
knowing how the law works and knowing how the
public works, we get these headlines that say
things like "North Palm says Benjamin School
available for adult book store site."
And the people that are reading that don't
understand the legal argument involved. And
that's where we are going to get killed.
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And so based on that, is there any way we
can simply confine our argument to area A and
area B over there, which is Ed Morse Chevrolet,
and that's never going to move, and besides that
it's on the other side of the railroad tracks,
and even if it got a misunderstood headline,
people would not be as ready with the tar and
feathers for us as they would be if you started
talking about the monestary and the school.
MR. BAIRD: The problem with the Ed Morse
site is that it's zoned C2, and not C1. C1 is
the zoning where adult entertainment, if it's to
occur, can occur.
So the argument that then has to be made
is that the Village would be willing to rezone
to C1 if someone came in with a plan for adult
entertainment here.
And the courts have said we need evidence
that that could would occur.
Obviously, the only kind of evidence
you're going to be able to produce is a witness
who says, to the extent any witness can speak
for the entire council, in my opinion the
Village council would approve this rezoning.
And so I think from an evidentiary point
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of view, that's a difficult burden.
But let me back up, because your points are
well taken on this issue, and I am by no means
suggesting or encouraging that site. I am
simply saying in terms of what sites are
available, that's one of the sites that are
available.
And the way that that gets communicated is
we are either going to move for summary judgment
and use the affidavit of a planner to say: Here
is the zoning map, here is the sites that meet
this. Based on these facts, this is the law.
Applying the law, we fall within one site per
six thousand.
In the alternative, if we determine that
summary judgment is not the route to go and we
have to go to trial on that issue, the testimony
of the planner is going to be: I am an expert
in planning. I am familiar with the Village. I
have examined the entire Village. I have
examined all of the C1 zoning areas within the
Village. I have examined the separation
requirements of the Village's ordinances
regarding adult entertainment. In my
determination these are the sites that are
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eligible for adult entertainment.
The Defendant's planner expert is going to
do the same thing, except his conclusion is
going to be only the adult warehouse site as the
one that's available.
COUNCILMAN TRINGALI: Let me ask my
follow-up question:
What if we -- as I understand it, the
current site is considered one -site because
these joints are too close to each other.
What if we were to amend the ordinance and
say, well, they only have to be 100 feet apart
from each other; could we then say that's two
sites but they happen to be on the same lot?
MR. BAIRD: That's something that we would
have to look at in terms of how much -- how many
linear feet we have got available and what kind
of amendment would have to be made in order to
make two sites available at that location as
opposed to one.
COUNCILWOMAN VASTOLA: Are you talking
about the video location?
COUNCILMAN TRINGALI: Yes, in other
words --
COUNCILWOMAN VASTOLA: Just the video
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location, you are going to say that's two spots
2
there, not one?
3
COUNCILMAN TRINGALI: No. You are going
4
to say that the video and Crystal's are two
5
separate spots, are two separate areas --
6
MR. BAIRD: Right.
7
COUNCILMAN TRINGALI: -- because we don't
8
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
COUNCILMAN TRINGALI: -- we are going to
12
let them be 100 feet apart.
13
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
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Village.
If we can accomplish both, then that's a
very good suggestion and something we should
evaluate.
COUNCILMAN EISSEY: If we leave that at a
hundred feet, though, my concern is that there
may be three or four or 500 feet areas that they
-- like at Benjamin, you know, in terms of the
you can't be so close. I think --
COUNCILWOMAN VASTOLA: They are only
allowed 2200 feet on Northlake Boulevard.
That's all that's allowed in the community right
now, is those 2200 feet there that those two
facilities are within right now.
I mean, really, logistically the ordinance
mandated that it was not allowed anywhere else
in the community.
Am I correct? I mean, that's what we
passed, is only that 2200 feet.
Unfortunately, they are fairly close
together. They are within the thousand feet.
If we did a situation where those two are
the only ones allowed in here, would we be
meeting code where no more would be allowed in?
COUNCILMAN TRINGALI: It would be close.
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MR. BALDWIN: It depends upon how you draw
it and --
COUNCILMAN TRINGALI: You would be close.
MR. BALDWIN: I think Tom is correct. We
would really have to look at it from whatever
change you make, how it would affect the
entire --
COUNCILWOMAN VASTOLA: Well, what you
could do is you could narrow it down. You could
take -- narrow down, instead of 2200 feet,
narrow down the area that the two facilities are
in, and say that they can't be any closer than
what they are. So that would narrow down how
many you could have.
That way we would have two for the entire
community. It would be two per six thousand
people. And we would probably meet all the
codes.
I don't feel comfortable letting it be
public record that there is a little tiny place
up there and there is a little tiny place over
here. You know, to me that's just opening a
whole new can of worms.
I think Joe is right. If you've got to
have cancer, I just want cancer in one little
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place; I don't want it scattered through the
whole body here.
MAYOR NORRIS: The problem with that,
though, is that's the only way you are going to
establish that it's valid and enforceable.
MR. BAIRD: First of all, it is already
public record that that site is available.
MAYOR NORRIS: Someone researched it.
MR. BAIRD: If someone comes in and
examines the record and comes to the conclusion
that the monestary is not a church, then that --
a portion of that site meets your standards, and
there is really nothing you can do about that,
other than change your standards.
VICE MAYOR O'MEILIA: When we passed that
ordinance we made an assumption that that space
up there was ruled out because of the 500 feet
to the church. We made that assumption.
They are saying now --
COUNCILWOMAN VASTOLA: That that's not a
church.
VICE MAYOR O'MEILIA: -- that maybe that's
not a church.
I don't know who is going to decide
whether that's a church or not.
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MR. BAIRD: The use has changed, is what
is my understanding.
VICE MAYOR O'MEILIA: Don't they still say
mass up there every day?
COUNCILMAN EISSEY: Yes, every morning.
VICE MAYOR O'MEILIA: Unless they quit.
MR. KELLY: I think the code say religious
institution.
COUNCILWOMAN VASTOLA: I think it's a
religious institution. I don't know that it's
necessarily a church.
MR. KELLY: I think our codes say
religious institutions.
COUNCILWOMAN VASTOLA: Which that is what
that is.
MR. KELLY: I think the relation should be
institution.
MR. BAIRD: Well, you have a report from
Mr. Fleishman, not done as part of this
exercise, that was previously done, where he
reached the conclusion that that site was not
operating as a church but was operating --
convention center is not the right term, but
it's a meeting place.
COUNCILWOMAN VASTOLA: It is a retreat,
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it's a religious retreat, is what it is.
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MAYOR NORRIS: Well, I think what you're
3
hearing is no one really wants to use the
4
argument of that up by the monestary, that piece
5
up by the monestary.
6
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
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alone, you don't have to express it, it sounds
12
like to me is what we are saying.
13
But we need to know what your feeling is
14
about the argument on just the south side.
15
Is that a fair statement?
16
VICE MAYOR O'MEILIA: Yes. If we can use
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-- if we use that southwest corner down there,
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would we have to change the code?
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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.
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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
where this provision of the code comes into
play.
MR. KELLY: Just for historical purposes,
we argued that when we first set this code up.
We originally put in 200 feet of a residential
zone, and then we came back purposely and said,
wait a minute, there are some homes or
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residential units that may not necessarily be in
a residential zone. So we changed the ordinance
to read a residence, not residential zone.
Now, he is suggesting a proposal basically
to eliminate the residence which would fall
back to residential zone.
Is that what we are dealing with now?
MR. BAIRD: Right. What our expert tells
us is that this is the only location that this
provision protects.
MR. KELLY: I was under the impression if
we went by residential zone we opened up a whole
lot of other homes within that 200 feet
criteria.
But I am trusting my memory now. I can't
recall if there were specific homes or if it was
just a matter of semantics.
VICE MAYOR O'MEILIA: Where is this
residential home? Is it in a -- what zoning
district is it in?
MR. BAIRD: It is a commercial zoning
district.
COUNCILWOMAN VASTOLA: C1.
MR. BAIRD: It's a nonconforming use.
MR. KELLY: Must be over there behind
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Oscar's or someplace --
MAYOR NORRIS: Mr. Tringali?
COUNCILMAN TRINGALI: Giving you all of my
sympathy, because as we practice law and --
practicing law and, you know, now all of a
sudden you're telling us what a lawyer would do
and we are telling you, yes, but we can't do
that, I would say the realistic view in North
Palm Beach is:
If we have to make a change and offer up a
sacrificial lamb, in terms strictly of argument,
we are not rezoning, we are not inviting in
adult book stores and porno shops and everything
else, but if we have to explain that to the
public, it is going to be a hell of a lot easier
to explain it west of Alternate AlA than it is
to start talking about the monestary, Benjamin
School and all that other stuff.
So I would do anything within reason, as
long as we are not opening up a can of worms, I
would say let's focus our attention on that
southwest area, you know, because then you have
all of the great practical arguments: We are
not building a new shopping plaza; we are not --
we don't have to worry about what is going in
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there; we already know what's in this area that
we are discussing, that is a car dealership
that's been there forever and is going to stay
there forever.
If we've got to start pointing the finger,
let's point it at that.
VICE MAYOR O'MEILIA: What we are looking
for is two sites.
Does that do it?
MAYOR NORRIS: Two sites or one additional
site.
MR. BALDWIN: One per four --
MR. BAIRD: One more site gets you just
over the line. Two more sites would get you
well within the parameters.
VICE MAYOR O'MEILIA: In other words, you
are saying that if we get that one in the
southwest corner, it's a maybe. If we get the
one --
MR. BAIRD: Yes.
VICE MAYOR O'MEILIA: -- that one and the
one up north, it's pretty much of a done deal?
MR. BAIRD: No, I am not saying that.
Because remember earlier in my presentation I
said that's the approach that the Middle
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District of Florida has taken.
That same approach has been rejected by
the Southern Cistrict of Florida, who has said
that a per capita test is not the way to go.
It's an area test.
And there is no way that the Village can
meet the area test.
VICE MAYOR O'MEILIA: Okay. Then I
rephrase it. Forget the acreage test.
If this is the only measure, then the
three would be better than two.
MR. BAIRD: Yes. Three gets you in the
ball game, and then the court has to buy the
argument of the Middle District and agree.
VICE MAYOR O'MEILIA: But to do the three
we still have got to change that zoning down in
the southwest corner.
Don't have to change the ordinance.
MR. BAIRD: You have to change the adult
entertainment issue.
COUNCILMAN TRINGALI: Simply to remove the
200 feet of a preexisting residence and go back
to residential zone.
MR. BAIRD: Now, if you wanted to include
the Ed Morse dealership as an alternative site,
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then you have to change the zoning from C2 to
C1.
COUNCILWOMAN VASTOLA: What if we just
dropped the whole thing? What if we dropped it?
MR. BAIRD: That's obviously an option.
COUNCILMAN EISSEY: Yes, what is the big
deal about that?
COUNCILWOMAN VASTOLA: Why don't we just
drop that whole thing?
MR. BAIRD: I am arguing for --
MAYOR NORRIS: Let me ask a question
first:
To get to the two -- to count that area in
the north end, do we have to make any kind of
zoning changes?
MR. BAIRD: No.
MAYOR NORRIS: That's just an argument.
COUNCILMAN TRINGALI: That's just an
argument.
MAYOR NORRIS: To get to the --
MR. BAIRD: -- the shopping center.
The shopping center is acceptable if the
monestary is not a religious institution.
And what I am hearing is it is a religious
institution, so it's not eligible.
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COUNCILMAN TRINGALI: I am pretty sure
2
they say mass there every morning.
3
MAYOR NORRIS: So it's just an argument
4
for that.
5
COUNCILMAN EISSEY: They do.
6
COUNCILMAN TRINGALI: Brian Roberts goes
7
up there every morning, so I know.
8
MAYOR NORRIS: The other one is a zoning
9
change.
10
VICE MAYOR O'MEILIA: The other one is an
11
ordinance change.
12
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
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we open up that other area, Charlie, and then we
consider the northern area up there, we may be
inviting some people to test the waters to open
up another place.
And I do not want to see that happen.
COUNCILMAN TRINGALI: Tom --
MAYOR NORRIS: Let me say one thing: If
we don't do anything, and either we lose the
case or we drop the case, what's to prevent
someone else to come in and challenge the
ordinance?
Because it sounds to me like what you are
saying is it's probably -- it may be, very well
may be unconstitutional.
COUNCILMAN TRINGALI: We could be back
where we started.
MR. BAIRD: Right. Let me just, if I
could, Mr. Tringali, respond to Dr. Eissey.
A good reason for your position is this:
If you don't move forward with the suit,
if we stipulate to drop our action and they drop
their counterclaim, you're left with a
constitutional ordinance that in order for
someone else to come into the Village, they have
got to then prove the case that it's not
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constitutional.
COUNCILMAN EISSEY: Right. Correct.
MR. BAIRD: So you have an obstacle for
anyone who might want to locate another
facility.
If you take the approach of going to trial
and you don't win at trial, you've got an
unconstitutional ordinance, you pay attorney
fees, and you either have to pass a new
ordinance that is constitutional fairly quickly
or you run the risk of others locating while the
door is open.
Now, I don't know that there are a number
of operators out there that are looking to
locate in North Palm Beach.
I do know from my discussions with PBSO
and other law enforcement agencies that because
of the enforcement that's going on in Broward
and Dade Counties, there are a lot of these
operators moving up to Palm Beach County.
COUNCILMAN TRINGALI: Apparently going out
on 45th Street.
MR. BAIRD: Rachel's.
VICE MAYOR O'MEILIA: Port St. Lucie, too.
MAYOR NORRIS: But you are saying that if
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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
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already in the community. At least we can stand
on that.
MAYOR NORRIS: I don't think that would do
it. That doesn't do it.
COUNCILMAN TRINGALI: That doesn't speak
to the constitutionality as he is describing it.
What these moronic federal courts -- and
you can quote me -- are saying is -- and I don't
care, because this is absolutely stupid -- but
in any event, what they are saying is in order
to fall within the -- what the middle district
of Florida has considered constitutional we have
got to have at least one more and probably two
more areas where we can say, well, if you really
wanted to move in you could go there but you're
going to have to buy out Ed Morse first. So if
you have got 20 million dollars, have at it.
MR. KELLY: Are you saying, Tom, that this
was the area, the Ed Morse Chevrolet area, or
was it this area right here?
COUNCILWOMAN VASTOLA: I think it's the
visual, the eye guy.
MR. BAIRD: It's both areas.
COUNCILMAN TRINGALI: Those are the two
areas.
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MR. BAIRD: The Eyeglass World site, but
it requires subdivision, which makes it -- in
all likelihood that's not going to count. And
then I am not sure of the exact location, but
there is a site in the proximity of the existing
rental residential structure that but for that
provision in the code, you would have an
eligible site in one of these two parcels.
COUNCILMAN TRINGALI: That's Mobile
Express Lube is the --
VICE MAYOR O'MEILIA: There is a house --
MR. BAIRD: There is a house behind
Mobile.
VICE MAYOR O'MEILIA: There is a house
behind and to the west of the Bud's.
COUNCILMAN EISSEY: That's right.
VICE MAYOR O'MEILIA: On the south side.
MR. BAIRD: And then the third possiblity,
but not a likely eligible site, is the C2 zoned
area where Ed Morse is.
And that's not likely to be eligible
because it's zoned C2 and not C1.
VICE MAYOR O'MEILIA: Well, we could
change the zoning ordinance and say you could
put it in C2 because that's the only piece of
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C2 that you have.
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COUNCILWOMAN VASTOLA: That's the only C2
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we have, is that one little piece there.
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VICE MAYOR O'MEILIA: The only reason it's
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C2 is because -it has got a car dealer, which we
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don't allow anywhere else.
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MR. KELLY: Didn't we call that CC
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automotive, though?
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VICE MAYOR O'MEILIA: C2. CC is the other
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special area up along the east side.
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COUNCILMAN TRINGALI: So if we change the
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adult ordinance to say you could be in a C1 or
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C2 and you could be within 200 feet of a
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residential zone, we now have an ordinance,
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Mr. Baird, which in your opinion is
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constitutional, or would --
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MR. BAIRD: Well, it could be
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constitutional if you apply the Middle
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District's test.
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COUNCILMAN TRINGALI: Okay. But at least
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we have an argument that we can walk into a
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federal court with and say: Look, we are a
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small village. The rules in the Southern
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District don't apply because they are talking
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about big metropolitan areas, we don't have one
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of those. So we have applied this other test,
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and here are some decisions which support that.
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MR. BAIRD: It passes the straight -face
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test.
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COUNCILMAN TRINGALI: It passes the Middle
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District test.
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Well, what I am telling you is
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appreciating -- speaking strictly for myself at
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this point -- appreciating all your arguments on
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the legality of the thing, I am telling you that
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the reality is that's what the argument is going
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to have to be.
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Because when you start talking about the
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monestary and the school, there is going to be
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people in my front yard with tar and feathers.
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COUNCILWOMAN VASTOLA: Too bad K -Mart
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didn't go there.
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MAYOR NORRIS: We need to kind of wrap
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this up.
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What it is that we need to decide tonight?
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What are you asking of us?
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COUNCILWOMAN VASTOLA: What direction to
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go.
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MR. BAIRD: To decide whether you want to
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continue with the trial, knowing and having been
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informed about: A, the likelihood of success;
and B, the difficult burden we have, which is
proving the Middle District approach.
Or your other option is, as I see it, to
follow Dr. Eissey's recommendation that we not
pursue the litigation.
COUNCILWOMAN VASTOLA: I for one drop --
tell them we will drop it, leave it in the 2200
feet we have. They go away with their expenses
and we go away with our expenses.
If they are not going to buy that, then do
the ordinance changes to allow it in those two
other areas down south. And don't dare look at
the piece of property up north.
VICE MAYOR O'MEILIA: That still does not
cure the acreage question.
COUNCILMAN TRINGALI: No.
COUNCILWOMAN VASTOLA: But then you are
going to have to have somebody come up and sue
us to allow it.
MAYOR NORRIS: What Mr. Baird is saying,
if it goes under the acreage test, there is no
way we are ever going to comply with that.
COUNCILMAN TRINGALI: That's it. You
can't comply with that.
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MR. BAIRD: In that respect, I certainly
agree with Mr. Tringali, that that's a
ridiculous standard for the courts to impose,
because that standard -- the origin of that
standard is metropolitan areas.
And what the courts are saying is: North
Palm, you've got to have so much; Juno, you've
got to have so much, et cetera. And I don't
believe that's good law.
COUNCILMAN EISSEY: Mr. Chairman, so that
we can move this along, I would like to make my
position very clear, succinctly:
I do not want us to do anything about that
northern area around Benjamin School or where
the Target place is, and because of the
monestary, as well.
I.do not favor going to the west where the
automobile place is.
I recommend from my viewpoint that we drop
the case, not continue the litigation, and that
we let whoever wants to come in next fight us in
court to try to prove that we are doing
something wrong.
COUNCILMAN TRINGALI: Well --
MAYOR NORRIS: Mr. Tringali?
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COUNCILMAN TRINGALI: Well, the problem
with that is, we know these people are out
there, and --
VICE MAYOR O'MEILIA: They are a union.
COUNCILMAN TRINGALI: -- they are going to
come, somebody eventually is going to come along
and fight us, and what we are being told is we
are not going to have even one leg to stand on.
At least if we make these rather minor
modifications to this zoning of other -- to the
adult entertainment ordinance, we will have one
leg to stand on, which is better than no legs.
MR. KELLY: What concerns me about this
area down here is that's where that Oscar's
restaurant is located, and it is abandoned. I
think it's empty right now. And --
COUNCILMAN EISSEY: It is.
MR. KELLY: It has always come and gone as
a restaurant of some kind.
VICE MAYOR O'MEILIA: There is something
going in there now.
MR. KELLY: For two months.
MAYOR NORRIS: I think there is a couple
of questions that could be asked here.
One is if we decide, we can decide to drop
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-- continue the case or drop the case, and then
if it's drop the case, then the next question is
are we going to do anything with the zoning
code, the ordinance, to try to correct it, to
help to avoid someone else coming in?
COUNCILMAN TRINGALI: Yes.
COUNCILMAN EISSEY: We can have two
separate motions.
MR. BAIRD: Mayor, could I inject
something?
MAYOR NORRIS: Yes.
MR. BAIRD: One of the other things that
Mr. Kelley asked me to examine was an amendment
to your ordinance that prohibits the serving of
alcohol in adult entertainment establishments,
which has been found in some communities to
deter the location of those facilities.
And the conclusion of the research is that
that certainly is constitutional, that is
certainly an option for you.
So if you do decide to drop the suit, what
I would recommend is that you immediately engage
in all of those amendments that you can make to
your code to give you the best chance of
preventing this from occurring in the future.
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VICE MAYOR O'MEILIA: Put the alcohol --
MR. BAIRD: Sale of alcohol prohibition.
MAYOR NORRIS: Can you do a prohibition
against consumption, not just sale?
MR. BAIRD: Sale and consumption.
COUNCILMAN EISSEY: Joe, why don't we do
two motions? Then you -- I will do one and you
do the other.
MR. BALDWIN: I have seen occasions that
say you can prohibit it.
COUNCILWOMAN VASTOLA: All sale of
alcohol, wine and beer and everything, prohibits
everything?
COUNCILMAN TRINGALI: Do we have to decide
this right now?
MR. BAIRD: Not as far as I am concerned.
COUNCILMAN TRINGALI: Otherwise we have to
go through it again.
MAYOR NORRIS: The next time we do it, I
think if you look at it, I don't know that we
actually have to have it during a regular
session.
MR. KELLY: We don't have to adjourn at
right at nine o'clock. We can keep going.
COUNCILWOMAN VASTOLA: We've got people
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out there.
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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
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finish: But at the same time I think we have to
amend these ordinances so that when we are
attacked, not if, when, we can then have a
defense and say, well, based on whatever that
case is -- what is it; Playhouse or Lingerie
Shop, the St. Petersburg case...
MR. BAIRD: Centerfold Club.
COUNCILMAN TRINGALI: Centerfold Club.
(Continuing) -- Based on Centerfold Club,
we tailored our ordinances to meet the standards
of the federal courts; that's the best we can
do. We come in here with clean hands, yada yada
yada.
Otherwise we are going to, I am telling
you --
VICE MAYOR O'MEILIA: That Centerfold case
is that St. Pete deal. They threw them
completely out of county; didn't they?
MR. BAIRD: No, St. Pete lost the case.
VICE MAYOR O'MEILIA: I'm not thinking of
St. Pete. I'm thinking of --
MR. KELLY: You're thinking of Palatka.
VICE MAYOR O'MEILIA: I am thinking of St.
Augustine.
MAYOR NORRIS: Mr. Tringali, are you
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wanting to make a decision tonight or do you
want to come back?
COUNCILMAN TRINGALI: I will --
MAYOR NORRIS: -- come back?
COUNCILMAN TRINGALI: Yes. I think
Mr. O'Meilia is correct. I think this needs
more thought.
COUNCILMAN EISSEY: That's fine with me.
MR. KELLY: Can everybody call you
individually and talk to you about this?
MR. BAIRD: Yes.
MAYOR NORRIS: We are adjourning the
attorney/client session.
(Thereupon, at 9:05 o'clock p.m., the
meeting was adjourned.)
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CERTIF I CAT E
THE STATE OF FLORIDA,)
COUNTY OF PALM BEACH.)
I, Jane Pastore, Registered Professional
Reporter, do hereby certify that I was authorized to
and did report the above meeting at the time and place
herein stated, and that it -is a true and correct
transcription of my stenotype notes taken during said
meeting.
Dated this 27th day of April, 1998.
Jane Pastore
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