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07-23-1998 VC SP-MMINUTES OF SPECIAL SESSION OF THE VILLAGE COUNCIL OF NORTH PALM BEACH, FLORIDA HELD THURSDAY, JULY 23, 1998 Present: 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 ROLL CALL Mayor Norris called the meeting to order at 6:00 p.m. All members of Council were present. All members of staff were present. Mayor Norris announced at this time that the Village Council would recess for the purpose of holding an Attorney/Client Session at 6:00 p.m. for approximately 55 minutes to discuss the lawsuit of the Village v. 421 Northlake Blvd. Corp., d/b/a Crystal's Bar and Grill. Mayor Norris announced all persons who would be in attendance at the Session. RECESS Mayor Norris recessed the Special Session at 6:01 p.m. The Special Session reconvened at 6:45 p.m. Mayor Norris announced that the Attorney/Client session had adjourned. ADJOURNMENT There being no further business to come before the Council, the meeting adjourned at 6:46 p.m. ~~ K thleen F. Kelly, CMC, Village CI k 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 Chris Bull who on oath says that she is ('laccific~ Advcrticing Manager of The Palm Beach Post, a daily and Sunday newspaper published at West Palm Beach in Palm Beach County, Florida; that the attached copy of advertising, being a Notice in the matter of Ooe~ Meeting/Attorne~Client Session in the ---- Court, was published in said newspaper in the issues of,Lt?1v 19. 1998. Affiant further says that the said The Post is a newspaper published at West Palm Beach, in said Palm Beach County, Florida, and that the said newspaper has heretofore been continuously published in said Palm Beach County, Florida, daily and Sunday and has been entered as second class mail matter at the post office in West Palm Beach, in said Palm Beach County, Florida, for a period of one year next preceding the first publication of the attached copy of advertisement; and affiant further says that she has neither paid nor promised any person, firm or corporation any discount rebate, commission or refund for the purpose of securing this advertisement for publication in the said newspaper. Swom to and subscribed before me this 2Q day of T,~ D. 1998 G~~~ 6~,~-L,~ Personally known ~ or Produced Identification Type of Identification Produced (f~l~R~7AJ~Nl))A7T7gl~enfM LintlonrN7J)TN{ o Notary Publio, State of Florida ~ , z iH Q Commission Na.C 1115RF~> <9 a yCommission Exp~ C ~'OFflO M ~ hOTAAY Fle. NawySmiceffi Doodiep ~~>' < 1.8003. S)))))1))))))))1)))))N)))))1U)))))1))))))))U)))) 1 VILLAGE OF NORTH PALM BEACH VILLAGE COUNCIL-EXECUTIVE SESSION ORIGINAL Thursday, July 23,.1998 6:10 PM to 6:45 PM Village of North Palm Beach City Hall North Palm Beach, Florida APPEARANCES Mayor David Norris M co Vice Mayor Charles O'Meilia CD President Pro Tem Edward Eissey o Councilman Joseph Tringali 0 0 Councilman Gail Vastola ° Village Manager Dennis Kelly U Village Attorney George Baldwin Consulting Attorney Counsel, Thomas J. Baird rr W a ¢ T W rrO a. W r W U) J O O U O LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 co co coN O O O co 0 U U od Ir W a a U) rr W F- rr 0 a W rr cr W U) Q J O O U cr 0 I 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 (Whereupon, the following proceedings were had:) MR. BAIRD: The last time we met we discussed the need for alternate sites and I identified the potential alternative sites. And we proceeded to propose amendments to the code that would deliver to potential alternative sites. And.tonight you know you have a public hearing and first reading on the ordinance. The two sites on our exhibit are the Ed Morse Chevrolet site, which is presently zoned C-2. And what the ordinance would do would be to amend the allowed uses in C-2 to include adult entertainment as a use. And the second amendment involves an existing non -conforming residence that is in this vicinity. And because of that non -conforming building being used for residential purposes, there is a separation requirement from existing residential uses that prohibits this site here where the Mobile Jiffy Lube is from being considered as a potential facility. So the other amendment is to delete the LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 2 M Cl) N O 0 O 00 0 U U LL W CLQ rr W F- rr 0 IL W rr Ir W Q J O O U rr 0 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 requirement of the existing residential use. That does not mean that it would apply to residential zoning uses because this property is not zoned residential. It's simply being used as a residence. And that is the only location in the Village where those facts exist. That is a non -conforming building being used as a residence. So the impact is limited in the Village. I should add that the change to the Ed Morse site, that the impact is also limited because that's the only site that's zoned C-2. So the ordinances that are being proposed affect only these two properties. MR. EISSEY: And only those two properties are zoned C-2? MR. BAIRD: Only the Ed Morse property is zoned C-2. MS. VASTOLA: The other one is C-1. MR. BAIRD: I would also like to I guess update you a little bit on the law because it's been evolving. And the last time I was here in the public workshop session, I mentioned to you that I had some good news that there was a case out of LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 3 co co N coO O o 0 U U- 2 o6 ir W a.Q a rr W rrrr 0 (L W ir Cr W U) Q J O O U Cr 0 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Casselberry, Florida that was beginning to go our way. Well, this Monday Federal District Court Judge Don Middlebrooks entered an order in a case I was involved in defending the Town of Jupiter dismissing a complaint by Mr. Carmona against the Town where Mr. Carmona argued that there were no sites in Jupiter upon which he could locate his proposed facility. The judge in the order did not reach all of the substantive issues. He dismissed it based on standing and a.ripeness ground, which are technical legal procedural mechanisms that have to.be met in order for you to be important in the first place. But within his opinion he did discuss because it had been raised in.my memorandum of law, that it may be possible for small residential communities to not have any adult entertainment facilities located within their community if there were other sites outside of their community that could deliver the same entertainment. So we now have a Middle District Court judge LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 4 M co N coO O O 0 U 06 W Q a rr W rrrr 0 CL W rr Ir W W a J O O U 0 LL .0, 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 recognizing that it may be possible -- MR. TRINGALI: Excuse me, the Southern District. MR. BAIRD: A Middle and Southern District. The case that Judge Middlebrooks cited too was the Middle District opinion out of Casselberry, Florida that I had represented to you at your last meeting. So we're building the case now.to show that not.only does the Village have a sufficient number of sites based on a per capita ratio basis. But in addition to that there. are sufficient number of sites.within a five, seven and a half and 10 mile radius. By the time we get to trial we'll have those graphics produced. In fact, what our research indicates is that within seven and a half miles of North Palm Beach there are eight licensed adult entertainment facilities. So our plan at this -point is to go into court, demonstrate that the sites -- that the opportunity exists within the Village. But not withstanding that there are opportunities here, there are also opportunities within LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 5 co m CDN O O O co 0 U C7 rr W a a CE W rrrr 0 W Ir cr W ¢ J O O U Cr 0 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Palm Beach County in a reasonable proximity to the Village. And that based upon the facts of that case, our case, that this ordinance in the Village of North Palm Beach should be upheld as constitutional. MAYOR NORRIS: I guess the question I'd ask then is do we need to do the rezoning and changing then that we're proposing now given this.new.case? MR. TRINGALI: I was about to ask.that. MR. BAIRD: Well, it'.s not the holding of the case that you can do that. It's discussed in dicta. And in my judgment it would be a much riskier proposition in terms of your ordinance being upheld to go in without any sites and rely on other community sites. Because Judge Cook in this case is going to have to make an evidentiary ruling that our presentation of sites outside of North Palm Beach is relevant. MR. TRINGALI: So what you're saying is you don't want to walk into court based on Casselberry alone. MR. BAIRD: Casselberry and Jupiter. MR. TRINGALI: And Jupiter. But you LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 6 M m N O O O 0 LL U LL 5 od rr W Q U) Cr W Cr 0 W Cc rr W Q 0 0 U rr 0 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 want to say, hey look, we do have these sites. And besides, judge, we don't even need to have them. MR. BAIRD: That's what the City of Casselberry did and it was a formula that worked for them. They had three sites in Casselberry. They had three sites just outside of Casselberry. And you know our facts are a little bit different. We're going to have -- I'm sorry. They had three existing adult businesses inside Casselberry and three in the unincorporated area just outside of Casselberry. Our facts are that we have one existing facility. We have two sites that could potentially house other adult entertainment facilities, and within seven and a half miles there are eight licensed facilities. Not all of those facilities by the way are open. And so the court is going to have to work through those facts and make some conclusions as to whether or not it's. relevant to even consider those sites outside North Palm. MR. KELLY: Tom, the eight facilities LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 7 M M wN O O O 000 0 6 LL rr W Q Ir W 0 0 - UJ rr W U) Q J O O U 0 8 1 in the County you said are not open. But I 2 presume you're talking about existing 3 facilities as compared to, what is.it 4 called, theoretical opportunity based on the 5 zoning. 6 MR. BAIRD: Right. 7 MR. KELLY: But have we looked at the 8 unincorporated County in respect to that as 9 far as potential sites? 10 MR. BAIRD: We're also developing that. 11 When I say our, I'm referring to the planner 12 that we would retain, Jim Fleischman, and 13 myself. Our goal is to show this judge how 14 many theoretical opportunities there are and 15 how many existing facilities there are. 16 MR. EISSEY: That's good. 17 MR. BAIRD: And when we're done with 18 that, the graphic, the map that we're going 19 to show him is.going to be dotted with 20 something like 20 opportunities within a 21 probably 10 mile radius of North. Palm Beach. 22 MR. EISSEY: Red dots. 23 MR. BAIRD: Big red dots, flashing red 24 dots, or neon. And it will include -- by 25 the way, Jupiter's ordinance is being LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 M co N O O O 00 0 U C7 rr W a a W 0 ILW Ir rr W Q J O O U 0 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 amended. It will include six sites, five sites in Jupiter. Opportunities, not actual facilities. MR. TRINGALI: Opportunities in Jupiter. Okay. MR. BAIRD: We've looked at Palm Beach Gardens and there are no opportunities in Palm Beach Gardens. Most of the opportunities in existing sites within the seven and a half mile radius are in. West Palm, Lake Park and Riviera Beach.. MR. TRINGALI: Do we need to do anything else? Are you coming to us tonight to say Kneed additional ammunition or are you just updating us? MAYOR NORRIS: What's the purpose of our meeting tonight in other words? MR. TRINGALI: I hope it's just updating. MR. BAIRD: Updating At your last meeting you wanted to have this meeting in case there was any indecision.on your parts, a safety net really in case you decided to back away from these amendments. MAYOR NORRIS: You don't feel LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 9 M co N O O O co0 U LL LL LL W CLQ (L U) Ir W rrrr 0 CL W fr Cr W Q J O O U 0 LL 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 comfortable given this new case of going in there and making these changes? You still don't think we would have a good shot? MR. EISSEY: We're rolling the dice. MR. BAIRD: The new case is not the holding. And because it's not the holding of the case, it's not going to be as binding or persuasive on the judge. MR. TRINGALI: My problem with this - and first of all I want to thank you for the absolutely outstanding presentation you did at the last counsel meeting to the public. Accept I kept sitting up at the counsel table and saying I thought this was all top secret stuff. But in any event, it really explained everything to the people that were out there who are the citizens of this community. And we all received a letter from at least one lady saying, hey, I don't like it, but it's what we have to do and let's hope for the best. I have no problem with the Ed Morse property at all. Because I really think that Ed Morse will be there forever. I'm a LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 10 M co N O O 00 O 0 U UL 7 - co W a Q d M W 0 a w cr rr W U) Q J O O U cc 0 LL 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 little bit concerned about the area one Mobile Express group site, because that's owned by Mobile which is some corporation in Kentucky. And before anybody else says anything, I realize we're on the record, I've had a Mobile credit card since I was in college. They provide wonderful gasoline and all that other.stuff. But I just really worry if somebody comes along and says that, hey, I'll give you five hundred bucks for that station or you know their business suddenly falls off to a net profit of only 20 percent as opposed to their expected 25 percent. I just worry about that. Ed Morse I don't worry about at all. I just worry about a site that's owned by an out of state -- MS. VASTOLA: And it's a small site. MR. TRINGALI: A small site that's -- MS. VASTOLA: Do we really need that site? MAYOR NORRIS: Can we get by with two and come within any of the formulas? MR. KELLY: Before you answer that question, let me ask kind of an intermediate LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 11 M (h N O 00O O 0 U d U- 2 o6 Ir W Q IL U) ir W Cc 0 CL W Ir W U) Q J O O U Cc 0 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. Let's say we amend the code like we're on track to do now. Both those sites get amended. We go to court and we don't prevail. Let's say we lose. Could we come back -- let's say we decide we don't want to appeal and we're just going to live with Crystal's where it is. Can we come back and amend those codes back and eliminate those two slots and still be whole? MR. BAIRD: Yeah Sure. MAYOR NORRIS: And then we won't have. an argument that they're grandfathered in or anything like that. We've done that in the past anyway. MR. BAIRD: It's a separate zoning action. MR. BALDWIN: Nobody has applied for. MR. TRINGALI: And then presumably.we would subject ourselves to another lawsuit from some other adult business. MR. KELLY: We could do a zoning in progress kind of thing, too. MR. TRINGALI: But then we'd have to deal with the law that exists at that time in the year two thousand three. LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 12 co co N 00 O O 0 0 U U- 2 cd fr W Q U) ir W 0 W rr rr W a J O O U cc 0 1 1 2 3 4 5 6 7 8 9. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BAIRD: Let me try and answer. Thank you for your comments about my presentation. Let me try and answer the questions sequentially taking the first question first and the intermediate question next. Based on the court opinions that I've seen, if the court applies the per capita analysis and as I've reported to you before, there's a question in.the Southern District as to whether they'll use that.analysis or they'll use the percentage of land in the community analysis. But assuming they use the per capita analysis, ordinances that have had one site per six thousand have been held constitutional. Ordinances that have had one site per more than six thousand residential have been held unconstitutional. .Assuming your population is 12,000, and you have two sites., you're at the edge of the envelope of constitutional ordinances assuming the per capita of ratio test is applied. If you're at three sites per 12, you're well within the envelope. Now, the reason we've looked at these sites outside of the community is because LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 13 co ccs N O O 00 0 0 U C7 LL 2 od rr W Q U) W 0 CL W rr rr W C0 Q J O O U r> Er 0 LL 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 not only do we want to be in the envelope, but we want to give the judge the further assurance that even if North Palm is.not quite all the way in the envelope here, anybody who really needs to express their first amendment rights by watching adult dancers can do so within a fairly reasonable travel distance from North Palm Beach. So I believe I've put the Village in the best position I could put the Village in given the constraints that the Village has .in terms of the land uses that the Village has, and in terms of the Village's character as really a small residential community. The third site helps. But if you feel that this Mobile Lube site is just something that you're willing to take that small additional risk on, then you can leave that one out. Your chances of having a constitutional ordinance are better with it in clearly. MAYOR NORRIS: Here's an additional thought on that. If you leave.it out and we give it a shot and maybe we win with these other arguments. But then if we lose, we LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 14 M Cl) 0 N 0 0 0 0 U d LL r- od Ir W CL CL U) cr W 0 ILW Ir Ir W g 0 0 U Ir 0 H- 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 have the ability to go back in, do this third site, and go back and see if the third site makes the difference. MS. VASTOLA: I think you have one chance to go. MR. O'MEILIA: Let me say something about that site. If you're concerned about it -- and I have a concern about it too about them buying the Mobile site.. But I've convinced myself now that that is the lessor of all of these. Just looking at that from A building inspector's standpoint or a zoning standpoint, it's highly unlikely that that will ever develop into a Crystal's, into a bar and dining room place because of the size of it and the parking requirements that we have, the restaurant and things like that. Highly unlikely. It would probably be restricted to a video place. I don't have as much of a problem with a video place as I do with a Crystal's place because we have them already. I know we have one or two that we just can't hammer and I know they're in Lake Park. You know they are. They're all over LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 15 co co N O coO O 0 U 6 LL 65 W W a. Q U) Er W 0 W ir cr W U) Q J O O U rr 0 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the place. The video places are. The fact is we had one just north on U.S. One for years. And then we had one next to Sir Speedy for a year before we kind of eased him out, the same guy, a video place. So I'm really not that hung up on the video places as I am as the Crystal's. That's the lesser of two evils and I think it's worth the.chance. We got 13.,000 people plus or minus in this town and two aren't going to cut it. According to the six thousand -- MAYOR NORRIS: We over 12,000. MR. O'MEILIA: Were almost 13,000. MR. KELLY: That's the official University of Florida population, 12,000 plus, almost 1.3,000 plus. If you start getting into Florida, now you go out to Canada and Kentucky and your population is the same year around. You get into Florida and every city has a different population in season. And our's boots up to about 15, 16,000. MR. O'MEILIA: 18,500 is what it really is today. We got residential structures LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 16 co N O O O CD 0 U C7 LL 2 cId cc W Q U) rr W rrrr 0 Q- W cr cr W U) Q J O O U 0 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 here to fit 18,500 people at the rate of two point three per household. MR. KELLY: If they were to get ahold of our comp plan and see what our so called unofficial population is -- MAYOR NORRIS: If we were just under 12, I was just saying I want to go with the two sites and take our chances. Because that's the rule that we're trying to comply with and why do more? Where do you, draw the line? You have three. How about four? We'd be even better. But since we have over 12 in the summer and well over it in the season, you know, if the basis of us making any change is to try to come to the MR. TRINGALI: I have to agree with you Mayor. And my real concern is that -- well, I go have my oil changed at Mobile Express Lube every three thousand miles. I want to see them stay in business. But it's really -- I mean, we have to recognize it's a real risk. MAYOR NORRIS: Maybe do it every 1,5.00 miles. MR. TRINGALI: It's just a risk LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 17 M M N O 00 O O 0 U d LL o6 Cr W Q CL Ir W 0 CL W rr Ir W U) Q J O O U 0 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 because -- MR. O'MEILIA: We could buy it. MAYOR NORRIS. It's not that funny. MR. BAIRD: There's another opportunity and that would be to approach the property owner about a restrictive covenant that the owner would voluntarily place in the property that it would not be available for adult entertainment. We could use it for. any other commercial purpose. But the case law has held that even if there is that kind of restrictive covenant on the property, the courts still look at it as available sites. MR. TRINGALI: I mean, wouldn't that be some sort of a bad faith or something if the Village approached Mobile and said, look, we want a covenant from you. Couldn't Carmona or whatever his name is accuse us of torpedoing our own zoning ordinances. MR. BALDWIN:. I would think that that would look pretty bad from the Village's standpoint. The other thing, too, and of course Tom is ahead of me on the case law, is what's a consideration for somebody who already has an existing use, permitted use, LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 M1 co co N O coO O 0 U od W a a W Cc 0 M W rr W a J O O U rr 0 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to put some kind of a restriction. MR. TRINGALI: We'd have to pay him. No.doubt about it. MAYOR NORRIS: It wouldn't be a requirement of the Village. And property owners do all of the time do declarations of restrictive covenants. MR. TRINGALI: But they don't do it for f ree . MAYOR NORRIS: Sure they do. They do it for their own property to make sure that it stays the way.it is. If they ever want it separated, that's done. So I think you can beat the lack of consideration. MR. O'MEILIA: And perpetuate it. MR. EISSEY: Perpetuity. MR. KELLY: Mobile owns that property by the way. MR. BAIRD: Mobile Oil. MR.. KELLY: Yeah. They're the property owner. MR. O'MEILIA: I have a real dread of this thing. But it's not as bad as it could be. MR. KELLY: Let's see how much all of LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 19 co co CDN O O O 00 0 U co W Q cc W 0 a - W rr fr W Cn Q 0 0 U 0 I 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 us are willing to compromise here for a second. Mobile is looking to -- Mobile has got their application in for the Winn Dixie store up on Conrad DeSantis's property, and we got a problem up there. The setback is a hundred feet from U.S. One. But it says the building -- you're going to love this one. It says the building line has to be a hundred feet back. Well, the. building -- the little convenience store that goes within the drive-thru station is 117 feet back. They're talking to me and Tom right now about how they can get their overhead canopy into that property by definition and still be about 25 feet inside the setback. In other words, the overhang of that canopy which is a wholly separate structure from the building not even connected goes into that setback by about 25 feet. So they're looking for a 25 foot variance. But they've already been told by the Appearance Board that there's no recommendation on their part. They're not willing to go in front of the Zoning Board. LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 20 M ch N O O O co 0 U U U- fr W a Q d rr W 0 a. W rr M W co J O O U 0 21 1 They don't have the hardship issue in front 2 of them. 3 MR. BAIRD: I don't think the Village 4 would be looking for any quick pro quo from 5 Mobile. I represent Mobile Oil and have 6 represented Mobile Land Development, since 7 1993, and they're a very community spirited 8 organization. 9 MS. VASTOLA: Yeah, but.that's today. 10 They could.be sold tomorrow. 11 MR. TRINGALI: Wait a minute. Let's 12' hear our attorney out. 13 MR. BAIRD: I think an organization 14 like that understands the interest of a 15 community, and being assured that a site 16 that they own.that is eligible for adult 17 entertainment not be in the future on the 18 market for that kind of use. And I think 19 that's the spirit in which any discussion 20 with Mobile ought to be approached. Not in 21 some kind of situation where you scratch our 22 back, we'll scratch yours. 23 I don't see any downside to just 24 inquiring to Mobile and saying, hey, you 25 know the Village has changed the zoning with LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 co co N O coO O 0 U C7 LL co rr W Q W I- tr 0 a W Ir rr W Q J O O U 0 LL 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 respect to your parcel, but you might want to give this some consideration for the future and see what happens. MR. KELLY: Our attorney expressed a concern about that. Is that something we .should do while we're in this process or wait until after the zoning is permitted? MR. BAIRD: I don't think any of you should have that discussion with Mobile Oil. MR..BALDWIN: We talked about that just a little bit. It seemed to me that anything along that line should be taken up after the litigation is completed and should not be approached or become a part of our litigation. I think it could make us look like we're in bad faith if it came to light. MR. TRINGALI: I agree. MAYOR NORRIS: I'd rather pursue Mr. Amelia instead of going to them and suggesting. Maybe you could go to them and request a right of first refusal if they run us out. .MR. TRINGALI: That may not be such a bad idea. They're building all over the Village. LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 22 co N O O O c0 0 U 6 U- 5 od Ir W U) Cc W F- rr 0 a W Cc Cr W U) Q J O O U rr 0 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. O'MEILIA: Of course all of that is contingent on winning the lawsuit. They may slap it back the way it was. I don't have that big of a concern about it. All of you know I'm sure Wally's place, Wally Video .over here, and there are three or four places in the Gardens. I could ask my grandson and he could tell us every one of them around here within five miles in five seconds. But they don't really concern me near as much as that other place. MR. EISSEY: I'm ready to make a decision and I support the recommendation of the attorney. MR. TRINGALI: Me too. MR. O'MEILIA: I do. MR. EISSEY: And the two sites. MAYOR NORRIS: That's all we're here for Tom? MR. BAIRD: Unless you have questions, I'm agreeable too. MS. VASTOLA: I don't think we have any choice as much as I hate it. MAYOR NORRIS: We at one point talked about maybe at some point also changing the LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400, 23 co co 0 CDN O O 0 0 0 U W Q Cn rr W fr fr 0 0- W rr W U) Q J O O U rr 0 IL 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 zoning with regard to sale of alcohol and those types of -- I'd like to do that, too. MS. VASTOLA: Yeah, how about that? MR. BAIRD: If you want to proceed with that, I would suggest you move forward with that at the same time. MAYOR NORRIS: We can't now. MR. BAIRD: It's not something that is going to be accomplished in time for trial on this. MAYOR NORRIS: Right. MR. BAIRD: But it has worked in other communities MR. O'MEILIA: Let me tell you about that. We got a few minutes now. I've really been involved in this County ordinance, County adult entertainment ordinance. And I've gone to the municipality twice trying to get them to support change in this County ordinance ,which we are in. We have stayed in it. We haven't opt out of it. All of the cities are in it unless they opt out. And what's happened down there in the County is the County Attorney and the LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 24 m Cl) N O O O 00 0 U LL 2 06 rr W ILCL rrW F- rr 0 CL W rr W Q J O O U 0 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 District Attorney and the Sheriff have all told the County Commission, hey, we can't do anything with this damn law the way it's written. You got to change it. You got to plug up the loophole. They went to the County Commission and the County Commission said, well okay, you bring us back an ordinance. So they brought back the ordinance and it had over two hundred changes in it. I counted everyone of those damn things. It had over two hundred changes. And the County that day in the workshop.said we're going to forget it. Bring us back an.ordinance with these licenses for these dance establishments. They didn't want to fool with it. Now, I've gone to the Municipal Board. of Directors twice in treating them to go talk to the County as a Board in an attempt to get them to do it, and they just looked at me. And if you read the minutes. That's why I've been sending you the Municipal League minutes because it's in there that I've gone to the Board. Now, the president of the Municipal LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 25 M Cl) N O O O 00 0 U 6 LL r> o6 Cc W a a n. U) cc W rrrr 0 W rr cr W C0 Q J O O U rr 0 W 26 1 League told me the other day in another 2 meeting that he was going back to Bob 3 Weissman to see what he could do. My 4 suggestion on this point is at this point we 5 ought to seriously consider adopting that 6 ordinance ourselves. 7 MS. VASTOLA: I don't think we have any 8 other choice than to adopt it ourselves. 9 MR. O'ME.ILIA: Adopt that ordinance and 10 opt out of the County and do our own 11 licensing ordinance. And I know George 12 feels that we shouldn't do that. At least 13 he felt before that we shouldn't do that 14 because the.County.Attorney was supposed to 15 do the work for us. But obviously they're 16 not going to do it. And they just feel that 17 they lose every time they go to court. 18 MAYOR NORRIS: Do you have a copy of 19 one that was proposed? 20 MR. O'MEILIA: Yeah. I have one on a 21 tape. The only thing is it's on Word 22 Perfect 6.0. 23 MR. TRINGALI: I've got it. 24 MAYOR NORRIS: We've got it at the 25 office. LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 co co N O O O co 0 U 6 U- 5 o6 fr W Q W 0 W fr W a J O O U fr 0 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. O'MEILIA: What I was going to do was take it and put it on my Word and update it and make it fit the Village. But can I give it to one of you and you can give it to George. George, what have you got? Have you got Word Perfect? MR. BALDWIN: Yeah, I've got Word Perfect. MR. O'.MEILIA: Okay. I've got it. And I really think we need to do that. Because the thing is so full of holes. And I',ve got a printed copy of it too incidentally if you want to distribute that.. MAYOR NORRIS: Yeah. Why don't you do that. MR. O'MEILIA: It's 88 pages long and it's got over two hundred changes in it. But I really think we need to do that. That's what Riviera Beach did. Riviera Beach took that ordinance and adopted it themselves so they could enforce it their own way. But they got rid of that place out on the beach. MR. TRINGALI: This is in terms of selling liquor? LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 27 Cl) Cl) O O N O 00O O 0 U 6 LL g o6 W Q U) W 0 0- W Cr rr W U) Q J O O U rr 0 LL 28 1 MR. O'MEILIA: This is a licensing 2 ordinance to determine whether you can get 3 an adult entertainment license or not. But 4 it also picks up all these ramifications 5 about whether they can sell liquor, hours of 6 operation, how many people you can have in 7 there, how high the bar can be off -- all 8 this nonsense. 9 MAYOR NORRIS: Let's look at that. 10 MR. O'MEILIA: That's what.they call' 11 their licensing ordinance. Where we got 12 stuck is we didn't have the.zoning ordinance 13 to back that up. We would have been in a 14 lot better shape. 15 MR. BALDWIN: Tom, if I understand your 16 research, the Southern District, the 17 prevailing right now is the five percent 18 rule. The Middle District is the per 19 capita. There's no way we can fit into the 20 five percent so we're working on the per 21 capita and asking them to adopt the Middle 22 District. So I assume what you're saying is 23 that we're not going with the prevailing, so 24 three sites versus two puts us in a stronger 25 arguing position being in the Southern LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 co co N O coO O 0 U U- 15 15 od Cc W Q Cn rr W F -- cc 0 0- W rr ir W U) Q J O O U 0 LL 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 District. MR. BAIRD: Well, whether or not we were in the Southern District, three sites versus two would put us in a stronger position. I'm of the opinion that land percentage rule is an unreasonable rule of law as applied at least to small communities. And I don't know what the line of demarcation for small is. But in Judge Middlebrook's opinion in the Jupiter case, he referred to the Town of Jupiter which population is about 30,000 as a small residential community. So I'm hopeful that having that opinion to argue to Judge Cook in our case here, certainly if Jupiter is small, then.North Palm is small. And I just think that the courts who have evaluated this law based on cases brought.in much larger communities have to start dealing with the facts of smaller communities.and the fact.that many smaller communities are not intended and never were intended to be full service communities and offered a whole range of goods and services and entertainment that you might expect in a LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 29 M co O N O O O co 0 U C7 od rr W Q U) Cc W F- cr 0 CLW M Ir W Q J O O U rr 0 LL 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 larger city. And so I think what the courts have to be presented and what the Supreme Court opinion talks about in terms of small residential communities is evidence and facts that show that it would be unreasonable to expect a bedroom community that is largely residential to make, you know, five percent of its land for adult entertainment. And judges have to be reasonable in applying facts to the law I think. And I think if we can present the kinds of facts that I've describedforyou today in terms of. what the Village has done to make its ordinance constitutional, the Village has gone the extra mile. I'm doing my closing arguments now of course. The Village has gone the extra mile in making sites available. And not withstanding that, there are within seven and a half miles eight licensed facilities and 15 other potential sites for these facilities. And the court needs to be reasonably applying the law here. LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 30 MR. O'MEILIA: -- decided on nine sites. MR. BAIRD: Twenty-two. MR. O'MEILIA: Was that the Southern District? MR. BAIRD: Yes. MAYOR NORRIS: Are we all set? MR. TRINGALI: All I can say, Mr. Baird, is if.you were on the bench I'd give you a decision right from the bench. MR. BAIRD: Well, you might be some day. MAYOR NORRIS: Anything else? MR. TRINGALI: I want to thank you for doing an outstanding job on all of the research and the expertise and all of the things that went into this case here. (Whereupon, the proceedings were concluded at 6:45 p.m.) LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 co `° N O 16 O O °° 17 0 U U 18 Cc W a 19 a Cn W W 20 cc O n W 21 w co J O 22 O 23 c r O 24 25 MR. O'MEILIA: -- decided on nine sites. MR. BAIRD: Twenty-two. MR. O'MEILIA: Was that the Southern District? MR. BAIRD: Yes. MAYOR NORRIS: Are we all set? MR. TRINGALI: All I can say, Mr. Baird, is if.you were on the bench I'd give you a decision right from the bench. MR. BAIRD: Well, you might be some day. MAYOR NORRIS: Anything else? MR. TRINGALI: I want to thank you for doing an outstanding job on all of the research and the expertise and all of the things that went into this case here. (Whereupon, the proceedings were concluded at 6:45 p.m.) LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400 31 co co N O O O Co 0 U od rr W a CL C0 W t— cc 0 0- W Cr M W U) J O O U rr 0 W 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 32 CERTIFICATE STATE OF FLORIDA ) COUNTY OF PALM BEACH ) I, TRACY LYN BARRETT, Court Reporter and Notary Public within and for the State of Florida at Large, duly commissioned and qualified, do hereby certify.that pursuant.to a notice to take said hearing heretofore filed, the examination was reduced. to writing under my supervision; and that the transcript is a true record of mystenographic notes. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my.official seal this 5th day of August, 1998. AVA TRACY N ARRETT Court eporter and Notary Public, State of Florida at Large •+0�� °!�Tracy Lyn Barrett ; .' Notary Public, State of Florida sion No. C 597334 ' °'.... 'My Commsission Exp. 12/28/2000) t , Bonded Through Fla. Notary Senice & Bonding Co. > LEY & MARSAA COURT REPORTERS, INC. (561) 686-0400