05-28-1998 VC SP-MMINUTES OF SPECIAL SESSION
• OF THE
VILLAGE COUNCIL OF NORTH PALM BEACH, FLORIDA
HELD THURSDAY, MAY 28, 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
George W. Baldwin, Village Attorney
Kathleen F. Kelly, Village Clerk
Absent: Dennis W. Kelly, Village Manager
ROLL CALL
Mayor Norris called the meeting to order at 6:30 p.m. All members of Council were
present. Members ofi staff present were the Village Attorney and Village Clerk.
Mayor Norris announced at this time that the Village Council would recess for the purpose
of holding an Attorney/Client Session at 6:30 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 6:31 p.m. The Special Session
reconvened at 7:28 p.m. Councilman Vastola was not present, having been called away
for a family emergency. 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
7:30 p.m.
~~
• Ka hleen F. Kelly, CMC, Village rk
THE PALM BEACH POST
Published Daily and Sunday
West Pahn 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
Classified Advertising Manager of The Pahn Beach Past, a daily and Sunday newspaper
published at West Palm Beach in Palm Beach County, Florida; that the attached copy of
advertising, being a ti in [he matter of Ooen Mee 'no Attorney-Client Session iir the ----
Court, was published in said newspaper in the issues of Mav 24. 1995.
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 m said Pahn 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 fast 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.
Sworn to and subscribed before me this ~¢ day of 1~ A.D. 1998
L
Personally known ~ or Produced Identification
Type of Identification Produced
((7'IlIOlL'ANlIlr77Aaill/A171N77711111I1A1.' i~
/~ o*"v 've. Karen McLinton
~C+ ~@,~~',~' Ne:nr! Public, State of Florida '
~ y;4 ado Cnmrtissinn No. CC 591331 '
~ ~F9F nPc My Cotalnission Exp. 11;15/2000
1~BW3~N6TARY Fla. Notuy SCrr:u 3c-ov~iv4 CO. ~
jSri}}YAM)}`.)})1)))):)))))S)))))U})})}}}))))))))
PRIVATE ATTORNEY-CLIENT
SESSION WITH n3 WLLAGE
ATTORNEY GEOAGE W. BAL-
DWIN, AND RS LmWnGN
ATTORNEY TXOYAS J. BAIPD.
TO DISCUSS PEHOWO LTCA-
TION STYLED YILLAOE OF
NORTH PAW aEACN V. 621
NORTXLAKE BLVD CORP.,
D/B/A CRYSTAL'S BAR ANO
GRILL THIS ATTORNEY•CLI•
ENT SESSION WILL BE NFLD
PURSUANT TO FLA. STAi.
%286.011(8) ON YAY 28,
1996, AT APPROKIMATELY
6:30 P.M., Ai TFff VILLAGE
HALL, 601 U.A HIGHWAY 1,
NOATH PALM BEACN, FL011F
DA. THE PRIVATE ATTORNEY-
! CLIENT SESSION I$ ANTICF'~
PAYED TO LAST FOp
APPpOxIMATELY 66 -YIN'
UTES. ALSO, BE AOWSED
THAT AT THE CONCLUSION
OF TXIS ATTORNEYCLIENT
SESSION AT APPROXIMATELY
]:26 P.M., OA AS SOON
THEREAFTER AS POSSIBLE;
THE VILLAGE COUNCIL WILL
RECONVENE ITS PUBLIC
MEETING TO OISCU55 ANY
MATTERS WHICH REMAIN ON
ITS AGENDA.
KathNan F. Kelly, CYC
Wlia9a CNrk
PuEIIaM Palm Baach Poat
6unaar. Mav 24._199a
2
3
4
5
6
7
8
9
10
11
12
13
14
15
M 16
co
O
17
O
O
co
0 18
U-
U-
19
w
20
co
w 21
0
w
22
w
0
23
0
24
0
25
VILLAGE OF NORTH PALM BEACH
ATTORNEY/CLIENT SESSION
Council Chambers
Thursday, May 28, 1998
6:35 p.m. — 7:25 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
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
Cl)
M
N
0
00a
0
0
U
U-
2 2
06
W
CLQ
IL
U)
M
W
0
(L
W
Cr
fr
W
U)
J
0
0
U
r>
tr
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
P R O C E E D I N G S
MAYOR NORRIS: This is the continuation, I
guess, or reconvening of our prior meeting at
which we had Tom Baird, who gave us a detailed
discussion on the status of the case and some
options on how we proceed.
We kind of had, if you recall, some
discussion on some alternatives, and recessed
with wanting to let everybody think about what
was said; come back and kind of go through the
alternatives and come up with our game plan.
What I think might be helpful, Tom, if you
could just give us a brief summary of what you
-- a very brief summary of what you did last
time, to tell us about the case, and then most
importantly is go through the alternatives that
we were talking about.
And then we can start the discussion from
there.
MR. BAIRD: The last time we discussed the
law as applied to alternative sites for adult
entertainment facilities, and I presented to you
two differoing viewpoints that have emerged in
Florida courts, Florida federal courts regarding
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
co
m
T
CD
N
CD
O
O
co
0
U
C7
U-
2 2
06
W
Q
a
co
M
W
Cc
0
CL
W
Cc
rr
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
3
that.
I referred to them as the per capita
approach, where it's the -- the standard is the
number of facilities versus the population of a
given jurisdiction, and I indicated that the
Florida federal court opinions have basically
accepted ordinances which have produced sites of
a ratio of roughly one site per six thousand
population.
The opinion that resulted in that is from
the Middle District court, federal court. The
Southern District, which is our district, were
we in federal court, reached a slightly
different conclusion, and while not outright
rejecting the per capita approach, said that the
approach that it believed should be followed was
on an acreage basis. And generally that court
will follow a standard of five percent of the
land area being made available for adult
entertainment facilities.
I had suggested to the council that it's
my opinion that a state circuit court judge,
which is the court that we are in, would be more
inclined to follow the Southern District
viewpoint than the Middle District viewpoint,
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
M
Cl)
O
N
00a
O
0
0
6
LL
od
W
CL
U)
rr
W
I--
rr
0
CL
W
rr
Ir
W
Q
J
O
O
U
0
4
1
because we are geographically in the Southern
2
District, and while that opinion is not
3
precedent, it is persuasive and I would think
4
that generally the judges in Palm Beach County
5
would follow the Southern District law.
6
MAYOR NORRIS: That was which one; the
7
five percent?
8
MR. BAIRD: That's the five percent.
9
Based on that, I suggested to you that
10
while our approach of demonstrating the
11
alternative sites meeting the per capita ratio
12
that's been accepted could be -- could result in
13
a favorable opinion to the Village, I felt that
14
it was more likely that the court would apply
15
the acreage standard.
16
And therefore I estimated our chances of
17
prevailing to be less than what I would like our
18
chances to be.
19
Of course, there is no predicting exactly
20
what a court may do with a given set of facts,
21
and sometimes a court will strive to reach a
22
decision because they believe that it's in the
23
best public policy.
24
So what we have attempted to do -- "we"
25
being myself and the expert witness that's been
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
M 16
co
CD
0
17
coo
18
U-
5 19
W
c
20
o
ir
Cc 21
0
W
°` 22
W
0
23
0
r
24
r
0
`- 2 5
5
retained by the Village, a land planner -- is to
identify the number of sites that were available
within the Village, to identify how many of
those sites could be made to fit the standards
that the Village zoning code applies for adult
entertainment facilities.
And I went through for you the various
sites. There are, as you might expect, not many
sites that would be available because there is
not a lot of commercial land in the Village, and
furthermore, the land that is available in the
Village generally abuts residential properties
or is within a certain proximity of
establishments, for example, that sell liquor.
And those kinds of standards create the
situation of not many sites being available.
The sites that we have identified, and
there are some qualifications to each of the
sites, are:
Obviously the site where Crystals now is.
We looked at that and we have determined that
only one facility could be located there under
your current ordinances. There are now two
there: One legally, one illegally; Crystals
being the illegal one, and Adult Video Warehouse
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
M
Cl)
O
N
00a
O
0
U
6
LL
2
06
CC
W
CLELQ
U)
Ir
W
Cr
0
CL
LU
rr
LU
U)
Q
J
O
O
U
0
1
6
1
being the legal one.
2
The other location that we identified,
3
that I think it's safe to say the council
4
unanimously rejected, is the site -- I will
5
refer to it as the DeSantis property. It is the
6
proposed shopping center. And that site would
7
not be eligible because there is a religious
8
institution within a certain -- I think it's a
9
500 foot radius.
10
The other sites that are available are at
11
approximately the corner of Northlake and
12
Prosperity Farms where Eyeglass World and, I
13
believe it's the Citco station are.
14
There is a qualification there in that the
15
property would have to be subdivided in order to
16
meet the setback standards from the residential
17
property that is to the north of the Aldrich
18
rental facility.
19
So that requirement of subdivision creates
20
potentially a problem for the court in accepting
21
the site as an eligible site, because the court
22
has to weigh the likelihood of that subdivision,
23
or in some other cases it would be the
24
likelihood of a rezoning occurring, in order to
25
make that site eligible.
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500—B
WEST PALM BEACH, FLORIDA 33401
co
O
O
N
T
O
O
co
0
U
d
W
2
06
cr
W
CLCLQ
cr
W
Cr
0
CL
W
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
7
And obviously subdivisions come to the
Village council for approval, and so the court
would be faced with determining whether the
Village council was likely to approve the
subdivision, knowing that the result of that
could be the location of an adult entertainment
facility and perhaps knowing the council's
position with respect to adult entertainment
facilities in the village.
So that site is a toss-up in my opinion.
The court can accept it or the court can reject
it.
The other site that is eligible is the
Steve Moore site. That zoning is C2, however,
which means that in order for it to be eligible
it would have to be zoned C1.
The consultant for the Village and I gave
consideration to what would be the best means of
making that site eligible: Would it be to
rezone it to C1, where adult entertainment
facilities can be located, or would it be to
change the C2 zoning to allow adult
entertainment to be located in C2?
And our conclusion was that changing to C1
was not the preferred approach; that rezoning or
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
M
Cl)
N
00a
0
0
U
6
W
75
od
M
W
CLQ
rr
W
F-
rr
0
a -
W
It
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
adding the use of adult entertainment to C2 was
the preferred approach.
And we have reached that conclusion
because the Steve Moore site is the only C2
zoned property in the Village.
MS. VASTOLA: We just did that so we can
allow for car dealerships. We created that for
them.
MAYOR NORRIS: Just for the record, it's
really Ed Morse.
MS. VASTOLA: Yes, it's really Ed Morse.
MR. BAIRD: Car dealerships seem alike to
me.
So that would be the action that the
council would have to take in order to get that
second site, which then gives you the
opportunity to present evidence to the court
that there is a ratio of one site per six
thousand population to get within that framework
that the Middle District of Florida at least has
accepted as a constitutionally valid ordinance.
If the Village decides that that approach
should be followed, then obviously Mr. Baldwin
and your staff would have to prepare an
ordinance amending the C2 zoning to allow for
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
Cl)
M
co
N
C)
0
00
0
U
d
U-
r>
06
W
Q
U)
W
Ir
0
ELW
Ir
rr
W
U)
Q
0
0
U
0
9
1
those facilities to be located in C2. You would
2
have to adopt that.
3
And not knowing exactly how long it takes
4
you to adopt ordinances, but imaging that it's
5
going to take at least -- or not imaging --
6
understanding that it's going to take two
7
meetings, a first and second reading, I would
8
say that it could be accomplished within a
9
month, depending on how your schedules fall and
10
how quickly the ordinance is prepared.
11
It doesn't seem to me to take a lot of
12
work, but obviously it has to be done properly.
13
The time frame, just to give you an idea
14
of where we are at now with trial, is as
15
follows:
16
When Crystals became 421 Northlake
17
Boulevard, the court, because it was a new
18
entityl took it off of its -- I believe it was
19
then on a May trial docket. And the next
20
available trial docket for nonjury trials is
21
August.
22
The Village, though, has another law firm
23
representing it, assigned by the insurance
24
carrier to defend against the counterclaim, and
25
that firm has filed a notice or request for a
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
r
co
0
N
0
CD
0
0
0
U
U
LL
06
Cc
W
Q
co
cc
W
0
a -
W
M
rr
W
Cn
a
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
10
jury trial.
The jury trial docket is not available
until February of 1999, which means that if we
are to expedite this and get this case to trial
as quickly as possible, we are going to have to
try and segregate the counterclaim and the jury
trial of that counterclaim from the Village's
injunctive relief action that we have asked for.
I am not sure what the court may do with
it. I would think that a court would want to
try everything in one trial as opposed to two
trials.
The other option that we have is that I
think it's possible to proceed with this with
the Village's claim on summary judgment. And
what that means for those of you that aren't
familiar with summary judgment is that we would
essentially agree to proceed with the case based
on affidavits submitted which state the facts.
Now, whether the court -- obviously there
is going to be a disagreement about facts in
terms of the affidavits that are submitted
because in all likelihood the defendant 421 is
going to reach the conclusion that there is only
one site available.
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
2
3
4
5
6
7
8
9
10
11
12
13
14
15
M 16
co
T
CM
17
a
0
co
0 18
d
U-
19
rr
W
20
rr 21
0
a_
W
°` 22
ir
W
co
0
23
0
24
0
25
11
Now, once you change the zoning on C2, it
may be that they have to concede that there is a
second site available.
The other option is to seek from the court
-- and I think this is a more likely scenario --
to seek from the court permission for a limited
evidentiary hearing where the two planners, the
experts on either side, are presented as
witnesses and we have a limited evidentiary
hearing, together with the filing of the motion
for summary judgment or some motion to resolve
the case, and the case is decided on that basis.
I have had some discussions with opposing
counsel, and I think opposing counsel would be
agreeable to such an approach, because it
appears that the one thing that we'd certainly
agree on is that the only thing that is at issue
here is how many alternate sites there are.
And if that is the only issue for a court
to try, and it can be tried in a half a day, we
might get some relief from the court, might get
the ability to at least have that disposition of
the case.
Obviously if they prevail, then the
counterclaim is subject to a trial at a later
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500—B
WEST PALM BEACH, FLORIDA 33401
co
co
19N
coa
O
0
U
U
U-
2 2
06
W
Q
U)
W
W
W
0
a
W
Cc
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
12
time.
MAYOR NORRIS: But what you're -- the way
you started this out was that unless we make
some kind of change, you think we are in a bad
situation on the case.
MR. BAIRD: Correct.
THE COURT: And to do what you just said
the other side would have have to agree that the
rule is the Middle District's rule, not the
Southern District's rule.
MS. VASTOLA: No, the Southern District,
not the Middle District.
MR. TRINGALI: Exactly.
MAYOR NORRIS: The Southern District rule
is the five percent of land area. And you are
going through a scenario to get us more than one
site, and that's the Middle District rule. So
we have to get them to agree that that's the
rule.
MR. TRINGALI: No. We have to convince
the judge.
MR. BAIRD: We have to convince the judge.
The rule of law -- we would have a
difference of opinion as to which law to apply.
MR. TRINGALI: If I may: Apparently there
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
co
co
O
N
00 0
O
0
U
d
LL
7-
06
cc
W
a
Q
U)
rr
W
F-
rr
0
W
cc
cr
W
U)
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
13
is no state law on this or case law, anything
out of any state court.
MR. BAIRD: Not on the alternate, not in
Florida.
MR. TRINGALI: So what you're -- you are
in the position of having to convince a local
trial court judge that he -- that the Middle
District rule makes more sense and he should
follow that.
MR. BAIRD: Correct.
MR. TRINGALI: Rather than the Southern
District rule.
MAYOR NORRIS: Go ahead.
MR. TRINGALI: Can I just -- how come this
isn't in federal court now? I mean, I don't
think I ever understood that.
MR. BAIRD: Well, we filed a complaint for
injunctive and declaratory relief based on our
assertion that the zoning codes of the Village
were being violated.
MR. TRINGALI: Okay.
MR. BAIRD: Which is a state court action.
There is no federal claim on that basis.
MR. TRINGALI: So they are not, at least
up until now they haven't brought an action in
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
co
Co
O
N
19a
O
co
0
U
d
LL
od
W
W
ClQ
Ir
W
W
0
ILW
rr
tr
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
14
federal court that we are violating their right
to do business or whatever.
MR. BAIRD: No. They brought a
counterclaim based on first amendment grounds.
And my co -counsel and I discussed whether
removal of that claim to federal court was
appropriate or not, and since he was lead
counsel with respect to the counterclaim, it was
essentially his call.
And his call was to leave it in state
court.
MR. TRINGALI: Well, that's where this, my
question is going, because are we going to get
into a situation -- it seems to me if we get
into federal court, we are in a very tenuous
position. We are not in a real good position in
state court, but in federal court we are pretty
much dead in the water.
Right?
MR. BAIRD: Whether it was luck or not, we
are better off where we are in state court.
MR. TRINGALI: Is there any way that the
defendants can remove this action to federal
court, where the law is more favorable to them?
MR. BAIRD: Removal has to occur within
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
co
co
O
N
N
coa
O
0
U
d
W
06
Cc
W
CLQ
Ir
W
CE
0
CL
W
cc
W
U)
Q
J
O
O
U
fr
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
15
the time frame of the filing of the responsive
pleading. And in this case the defendant has
already filed its answer to our complaint and
its counterclaim, and the Village has filed its
answer in affirmative defenses to the
counterclaim.
So I believe they are outside of the stage
where they can remove.
MAYOR NORRIS: Let me ask you a question
on the five percent rule, the Southern District
rule.
That's five percent of the total area in
the Village, or five percent of the commercial
area?
MR. BAIRD: Well, the opinions -- there
are different opinions in different federal
courts about that.
Obviously, Crystals' attorneys are going
to argue its five percent of the total area, but
the Village is not even going to meet it if it's
five percent of your commercial area, not even
close.
So it's weak grounds to rely upon that,
and the best argument that can be made is this
per capita argument.
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
N
0
0
0
U
00
U
LL2
06
M
W
fLQ
U)
Cr
W
CE
0
a.W
Er
W
0
0
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
MR. TRINGALI: None of these things has
gotten up to the 11th Circuit to sort of
stabilize the law, obviously. We are dealing
with a bunch of federal trial courts.
MR. BAIRD: The Southern District opinion,
I believe, has gone up. But I'm not aware that
-- let me back up.
The Southern District opinion only came
down earlier this year. So any appeal, we are
probably a year away from the 11th Circuit
deciding on appeal what the law is to resolve
the Middle and Southern District approaches.
MR. TRINGALI: Okay.
MAYOR NORRIS: So alternatives, what we
have to decide is whether we want to -- I think
where we left it last time -- whether we want to
continue at all.
And it sounds to me that we are down to
whether we want to continue it at all or whether
we want to go through and make a zoning change
like you're suggesting and go forward on the
argument.
Is that pretty much what it comes down to?
MR. BAIRD: Yes.
Let me add one other thing, just for you
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
m
M
T
CD
N
190
0
co
0
U
C'3
U-
ob
rr
W
a
a
U)
rrw
rrrr
0
M
W
cc
Cr
W
U)
Q
J
O
O
U
0
W
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
1.9
20
21
22
23
24
25
17
to consider:
It's my understanding -- and Mr. O'Meilia
may be able to add to this -- that Palm Beach
County is considering amending its adult
entertainment ordinance, but the amendment that
they are considering, while it would strengthen
presumably the ordinance, would also be such
that they are going apply that ordinance only in
the unincorporated area, they are going to leave
the municipalities out.
Which would then require the Village to
adopt additional standards regarding your adult
entertainment ordinance.
That is in some ways an opportunity, but
it also in my opinion is going to be difficult
for the Village under almost any circumstances
to meet this five percent criteria because of
the lack of commercial land that's available.
The other thing that you may want to
consider if you are going to consider amending
your ordinance at all is that some communities
have been successful by prohibiting alcohol
sales within adult entertainment facilities.
The theory is that the two are linked and
if you take away the alcohol, I suppose some of
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
C0
m
m
N
CD
00 O
O
0
0
6
LL
06
W
(L
a
U)
cc
W
0
CL
W
Ir
CC
W
U)
Q
rf
J
O
O
U
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
the entertainment value departs and some of the
profit departs from those facilities.
MAYOR NORRIS: Sale and/or consumption?
MR. BAIRD: Yes.
MS. VASTOLA: And you can do that, that's
legal, right?
MR. BAIRD: That's legal.
MAYOR NORRIS: And then we would be able
to do that and it would apply to this property.
MR. BAIRD: Right.
Now, they might well challenge the Village
on that ordinance, but the research that I have
done indicates that the courts are pretty strong
-- pretty much strongly upheld those ordinances.
MR. O'MEILIA: You would have to do that
in the licensing ordinance, though, not in the
zoning ordinance.
MR. BAIRD: Well, you would -- yes.
MR. O'MEILIA: We depend on the county's
licensing ordinance, but we adopt a zoning
ordinance to measure --
MR. BAIRD: The adult entertainment
license.
MR. O'MEILIA: Yes. The adult
entertainment license is a county ordinance that
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
co
co
N
a
O
co
0
U
U
LL
2
06
W
W
a
a
IL
U)
Ir
W
W
0
IL
W
Cc
rr
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
19
we can opt out of, and it is the one where the
county was proposing to do that, to make that
alcohol change, but they sent it back to staff.
The last I heard it had gone back to staff for a
lot more reconsideration.
So I really don't think we can count on
that county license ordinance to help us out in
the near future.
MR. TRINGALI: Here is a real stupid
question, Tom:
What would happen if we would take the
existing area, which includes Crystals and the
Adult Warehouse, and subdivide that, make that
into, quote, two sites by not requiring the -- I
understand what's keeping, what's preventing
that from happening is because by the current
zoning ordinances, they have got to be 1500 feet
apart or 2000 feet apart or something.
Right?
MS. VASTOLA: Well, those both are grand-
fathered in right now, because that ordinance
was created after those two.
MR. BAIRD: No, just the --
MAYOR NORRIS: Just with the adult video.
MS. VASTOLA: That's only because it was a
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
co
Cl)
T
N
0
C)
0
0
0
U
d
LL
75
od
Cc
W
a.Q
U)
Cc
W
Cc
0
(L
W
Cc
cr
W
U)
a
0
0
U
cr
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
Nul
new business. If it was still the same old
business, it would be grandfathered in.
MR. BAIRD: I suppose there is an
amendment that could be made or amendments that
could be made to the current zoning ordinance
that might produce two sites there as opposed to
one.
There are two problems: One is their
proximity to one another; they are about 300
feet apart. So you would have to amend the
regulation which now says that adult
entertainment has to be 1,000 feet apart.
And secondly -- there's 2000?
2000 feet apart.
MS. VASTOLA: Yes.
MR. BAIRD: And secondly, depending upon
-- there could be a problem with alcohol sales
and their proximity on either side of those
properties.
I think the report I got from the
consultant said that that was potentially a
problem. So if that's the case, then you are
having to look at reducing the separation
requirement also between those facilities and
alcohol serving facilities.
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
Cl)
M
O
N
C)
O
00
0
U
6
LL
r>
od
CC
W
Q
U)
M
W
0
ILW
W
U)
Q
J
O
O
U
r>
0
LL
21
1
MR. TRINGALI: I am just wondering, and I
2
don't want to waste time exploring useless
3
alternatives, but I am just wondering: Rather
4
than trying to get them out of town and facing
5
the possibility of a counterclaim or losing a
6
counterclaim, would we be better off isolating
7
them and saying, okay, both these joints are
8
here, that's the way life is, now we are just
9
going to isolate you in that spot and that's the
10
end of that.
11
MR. BAIRD: Well, if you were going to
12
take that approach, rather than try -- rather
13
than mend your ordinances at all, I would
14
suggest that you try to work a stipulation out
15
that essentially grandfathers Crystals also,
16
rather than trying to fit it in based on your
17
zoning standards and changing all of your
18
standards.
19
But I think the path that you are headed
20
in is one that the council has to consider kind
21
of a business decision as, you know, with the
22
likelihood of prevailing in the litigation being
23
not strong, is it in your better interest to
24
accept, as much as you may not like it, that
25
second facility there, continue to work on
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
m 16
co
0
0
0
17
0
0
0
18
UL
19
corrW
20
co
Cc
21
O
W
°` 22
M
W
U)
0
23
0
24
0
25
22
strengthening your ordinance so that you don't
get any additional facilities coming in, but
recognize that it's always going to be
difficult, I think, given the law as we now have
it, and the lack of commercial that the Village
has, to ever meet that five percent requirement
which would give you the kind of certainty that
under the law now you really need to have.
MR. TRINGALI: Well, my problem is that if
we stipulate with Crystals, just stipulate to,
okay, we will all just go away and leave each
other alone, that's not going to stop XYZ
corporation from coming in and saying, okay, now
we want to open a place.
MAYOR NORRIS: There is two factors there:
One is the lawsuit; do we decide that we
don't have a good enough case here, so we do
whatever we can with Crystals. But then we
still have to deal with the problem that what
you are telling us is our adult entertainment
ordinance is not enforceable, so anyone else
could come in and basically go -- it sounds like
go anywhere that they want to go because they
are going to be able to say ours is totally
unenforceable, so they are not prohibited from
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
M
co
O
O
N
O
O
O
co
0
U
C7
LL
2
06
Cc
W
Q
W
Ir
0
a
W
fr
rr
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
23
going anywhere.
So even if we decide -- which I am not
saying we should decide -- to settle the case, I
think we still have to work on the ordinance, to
make sure that --
MS. VASTOLA: Well, you have two
facilities. We do meet the central Florida code
with two facilities.
MAYOR NORRIS: We don't yet.
MS. VASTOLA: If we can't -- allow the two
facilities, we would be able to meet the central
Florida interpretation of laws and regulations.
MAYOR NORRIS: Well, we have to make some
amendments to do that, to meet that.
MS. VASTOLA: What would happen, you would
have to grandfather Crystals in.
MR. TRINGALI: Well, no, then you wouldn't
have to -- if you took another piece of
property, the Ed Morse property, and changed the
zoning there to allow adult entertainment at Ed
Morse Chevrolet, right, now you've got your two
sites. Now you can go forward with the lawsuit
against Crystals, win or lose, even though you
may lose.
MR. BALDWIN: How much other property do
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
M
Cr)
T
Cfl
CV
Co
a
O
00
0
U
6
LL
2
od
rr
W
ILQ
W
0
(L
W
cc
Cc
W
U)
Q
J
O
O
U
0
24
1
we have zoned C2?
2
MS. VASTOLA: That's it, that's all we
3
have, just that.
4
MR. BALDWIN: That's the only piece zoned
5
C2?
6
MR. O'MEILIA: Which brings up the point:
7
Now, if we are going to be annexing that other
8
strip on up north of Ed Morse one of these
9
days...
10
MS. VASTOLA: You are talking about the
11
Live Oak Plaza, that area in there?
12
MR. O'MEILIA: Yes.
13
MAYOR NORRIS: That would be targeted for
14
C2?
15
MR. O'MEILIA: Probably.
16
Well, I don't know whether it would be
17
targeted for C2 or --
18
It would have to be targeted
19
for C2.
20
MR. BAIRD: We have looked at that
21
property and concluded that at least a portion
22
of that could meet the ordinance.
23
But what we always get back to is this
24
difference of opinion between the federal
25
courts, and --
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
CO
M
O
N
00 a
O
0
0
6
LL
06
fr
W
CLILQ
U)
Ir
W
0
a
W
Cc
rr
W
U)
a
J
O
O
U
rr
0
LL
25
1
MR. O'MEILIA: I read this Hendricks
2
letter. I read the results, I think that you
3
sent us, of one of those lawsuits in Broward
4
County.
5
And I think what the final decision is is
6
what you are going to say: Shall we take a
7
chance on saying, "Hey, Federal Court, this is
8
the one that applies to us, not this one. I
9
mean, "This, Federal Court, applies to this us,
10
not this one, because we are a small community,
11
we are a bedroom community with very commercial.
12
Because that one was based on a big, big thing.
13
MR. BAIRD: Well, almost all of the
14
opinions are based on large communities. Renten
15
(phonetic), the leading case, is a community of
16
60,000 in the State of Washington. And you've
17
got Detroit and you've got Atlanta and some
18
others.
19
But, I mean, what you are talking about
20
is convincing a trial court judge -- and it will
21
go up on appeal if you win, certainly -- that
22
new law should be made in the State of Florida.
23
One --
24
MR. O'MEILIA: Because the little guy
25
hasn't been considered.
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
M
C7
T
O
00 N
a
O
0
U
U
tL
06
cc
W
CLCLQ
U)
M
W
0
a
W
cr
W
C0
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
MR. BAIRD: -- one, that you are going to
use the per capita approach; and two, that
courts should recognize a distinction between
small bedroom communities and larger
communities.
And the opinions thus far have been --
there has been two different -- two opinions:
One has suggested that there should be a
distinction; and the other has suggested that
there should not.
And one is from Connecticut or New Jersey,
in the northeast somewhere, and the other is
from the west coast.
MR. EISSEY: Tom, what happens if wherever
the second parcel is designated and some group
wishes to open up another adult facility and the
owner/proprietor of that piece of property won't
lease it or rent it to them?
MR. BAIRD: The courts have said that
that's the marketplace.
MR. TRINGALI: Too bad.
MR. BAIRD: That you need only make it
available and the operators of adult
entertainment facilities need to make -- the
economic factors essentially aren't to be
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
co
m
T
co
N
000
0
0
U
C'3
75
o6
cc
W
a
CLQ
rr
W
F-
rr
0
Qw
W
cc
W
Q
0
0
U
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
27
considered.
MR. EISSEY: Okay. Then if, the same
scenario and the property becomes available and
the proprietor can make more money from client A
than they can client adult, the courts will say
the owner cannot do it with client A because
it's beneficial to the owner and they have to go
with client B?
MS. VASTOLA: Which is the adult
entertainment?
MR. EISSEY: Yes, which is the adult.
MR. BAIRD: I am not sure I am --
MR. EISSEY: Okay. Two pieces of
property; this is the second piece of property.
MR. BAIRD: Right.
MR. EISSEY: Ed Eissey owns it. Charlie
O'Meilia comes in and he wants to put up some
business there, and I am going to lease him the
property for X amount of money.
And then Gail comes in and she wants to
put in a strip joint, adult joint there, and she
doesn't -- she can't, nor does she want to pay
half of what I am going to be able to lease it
to Charlie for:
Are the courts going to tell me as the
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
M
Ch
O
00 O
N
a
O
0
U
U
LL
06
Er
W
CLa
U)
M
W
0
EL
W
Ir
rr
W
Q
J
O
O
U
rr
0
LL
28
1
owner of this property I have to lease it to her
2
for less money?
3
MR. BAIRD: No.
4
MAYOR NORRIS: No.
5
MS. VASTOLA: No, the economics have
6
nothing to do with it.
7
MR. TRINGALI: As a matter of fact, as I
8
understand it the courts wouldn't even say to
9
you that you have to lease it to her for more
10
money. It's your property; you do what you want
11
with it.
12
MR. EISSEY: That's my question, then.
13
So what is the big deal if the owner, Ed
14
Morse property or who else, doesn't want to
15
lease it to the adult group, am I hearing that
16
they are going to have to lease it?
17
MS. VASTOLA: No.
18
MR. BAIRD: No.
19
MR. EISSEY: Then what happens?
20
MS. VASTOLA: Nothing.
21
MAYOR NORRIS: Nothing.
22
MR. O'MEILIA: It goes away.
23
MAYOR NORRIS: It serves our purpose
24
because it is a site that potentially could be
25
used for adult entertainment, but it's not
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
M
M
O
N
coa
O
0
U
C7
LL
W
a
Q
U)
Cr
W
rrrr
0
IL
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
29
because the owner doesn't want to.
MR. EISSEY: Amen, Brother.
MR. TRINGALI: But some day --
MS. VASTOLA: But what if Ed Morse decides
he wants to sell that, and you know, how about
that beautiful big facility they just built on
45th Street? I mean, there is big money in
that.
MAYOR NORRIS: That is what I was going to
say.
MS. VASTOLA: That's adult entertainment,
and that's a big piece of land that somebody
could theoretically go and put a big facility
like that --
MAYOR NORRIS: Don't forget that if we go
down the road to changing it and allowing it in
C2 or whatever, we are opening it up to another
site.
MS. VASTOLA: That's right.
MR. O'MEILIA: You're shaking the dice.
You're better off than you are now.
MR. TRINGALI: What else are you going to
do? What is your alternative?
MR. EISSEY: Leave it as it is.
MAYOR NORRIS: Continue the fight and see
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
M
m
T
N
O
O
O
O
0
U
LL
U
n.
06
Ir
W
a
U)
W
Er
0
W
T
W
U)
Q
J
O
O
U
0
I
30
1
if we can convince the court that neither of
2
those standards are the applicable standards to
3
us.
4
MR. TRINGALI: I don't think you are ever
5
going to convince a court that neither one of
6
those standards should apply. I mean, we will
7
be lucky to convince them to go with the per
8
capita approach, I would think. That's what I
9
am hearing.
10
MS. VASTOLA: I would lean toward, as much
11
as I hate to say this, because I truly do hate
12
to say this, but I lean toward letting the two
13
facilities stay there, saying that we have met
14
the per capita criteria for the central Florida
15
situation and work our avenues toward allowing
16
no longer alcoholic beverages sold in adult
17
entertainment facilities and changing the
18
ordinance in that way.
19
That way it does make our life a little
20
less --
21
MR. EISSEY: That would grab them.
22
MAYOR NORRIS: How can you do that,
23
though? We can't do our ordinance to make those
24
two actual sites qualify under our ordinance,
25
right? I mean, under our ordinance --
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
M
co
O
co
N
0
O
co
0
U
C7
U -
cc
W
Q
U)
Cr
W
cc
0
0-
W
rr
Cc
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
31
MR. O'MEILIA: Without opening it up to
fifteen other ones.
MS. VASTOLA: No, but if you grandfather
just those two -- keep the ordinance as it is
right now, but grandfather -- now remember, we
created that ordinance after those two
facilities were existing, and the understanding
was that those two would be grandfathered, but
if something --
No, both of them were there, Charlie.
MR. O'MEILIA: I know, but they weren't
legal.
MAYOR NORRIS: One was and one wasn't.
MS. VASTOLA: They weren't legal, but the
understanding was they would be grandfathered
and if one of them left, well, then the
ordinance would come into play and then it would
really only allow one facility.
But if you allow those two facilities only
to be grandfathered in, if something happened to
one of those facilities, then the ordinance
kicks in.
But then working the avenue and not
allowing alcoholic beverages...
MAYOR NORRIS: Then according to what we
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
Cl)
M
O
N
000
O
0
U
d
LL
rr
W
Q
U)
cc
W
F-
rr
0
CL
W
rr
W
W
U)
Q
J
O
O
U
W
0
W
32
1
are hearing, at that point our ordinance becomes
2
unenforceable because we only have one site.
3
MS. VASTOLA: That's if one of them
4
leaves.
5
MR. TRINGALI: Well, that was my earlier
6
question: Is there some way of making that two
7
sites --
8
MAYOR NORRIS: Right.
9
MR. TRINGALI: -- and putting a 20 foot
10
wall around it and saying okay, that's it?
11
MAYOR NORRIS: There is your district.
12
MR. O'MEILIA: That was never the intent.
13
The intent was: We knew one was legal, we knew
14
one was illegal. We got the ordinance changed.
15
And the thing is obviously illegal, and the idea
16
was then to take them to court and put them out
17
of business.
18
MR. TRINGALI: Both of them or one of
19
them?
20
MS. VASTOLA: No, just one -- well, we are
21
working on the one.
22
MR. O'MEILIA: The one is legal. They did
23
everything that they were supposed to have done
24
the way they should have done it.
25
MR. TRINGALI: And that's, what; the book
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
co
co
O
(D
N
co0
O
0
0
d
U-
W
Q
U)
Ir
W
0
(L
W
cr
fr
W
U)
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
33
store or the video store?
MS. VASTOLA: The video store.
MR. TRINGALI: Well, then the only other
viable alternative, I think, is to use the Ed
Morse property and if some day it becomes the
world's largest, you know, whatever, at least
it's as isolated as it can be within the bounds
of North Palm Beach.
MR. BAIRD Well, I think one thing you
have to consider -- I am not sure of the size of
the Ed Morse property, but I am assuming it's a
pretty -- probably six acres or more.
(Thereupon, Ms. Vastola left the meeting
room.)
MR. TRINGALI: It's big.
MR. BAIRD: Car dealerships tend to
command a very high price for the land. Service
stations and car dealerships probably compete
for the highest price for land in most areas,
and certainly this area.
So to the extent you want to feel somewhat
secure about that site, it seems unlikely that
an adult entertainment facility could buy out Ed
Morse.
Ed Morse would have to have another
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
CO
CO
T
N
00a
O
0
0
6
LL
2
cd
W
a.
Q
U)
It
W
0
ILW
rr
tr
W
U)
Q
J
O
O
U
0
34
1
location to go to to open up their facility if
2
they were going to accept an offer to buy them
3
out of that area.
4
MR. TRINGALI: And, you know, again this
5
is a difficult thing to say in public, but you
6
have to look at this -- you have to look at all
7
the possibilities.
8
If we really are stuck with allowing them
9
some place, is it the best some place in North
10
Palm Beach, trapped between Alternate AlA and a
11
railroad track?
12
I mean, I would prefer that over Northlake
13
Boulevard or Anchorage Drive.
14
(Thereupon, Ms. Vastola returned to the
15
room and then excused herself from the meeting.)
16
MR. O'MEILIA: When you say August, now
17
you're thinking August; if the thing goes along
18
it is going to be August?
19
MR. BAIRD: Well, assuming we can
20
segregate the counterclaim from the Village's
21
claim, then we can have a trial on our claim, a
22
nonjury trial in August.
23
But --
24
MR. O'MEILIA: But in any event it would
25
probably be August, even if the judge wanted to
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
Cl)
Cl)
T
N
000
O
0
U
6
LL
W
Q
W
0
CL
W
W
U)
Q
J
O
O
U
fr
0
LL
35
1
put them together.
2
MR. BAIRD: No. If they remain together,
3
then it's February.
4
MR. O'MEILIA: Probably February.
5
MR. EISSEY: Of 199.
6
MR. O'MEILIA: Well, if that's the case,
7
we have got plenty of time to change the
8
ordinances.
9
MR. BALDWIN: Tom --
10
MR. O'MEILIA: You do have to go to the
11
planning commission first. We have got to go to
12
them first for recommendations.
13
MR. BALDWIN: Does jury trial include our
14
claim against Crystals?
15
In other words, it would seem to me if
16
not, there would be some likelihood that he
17
would sever because of the problem of the
18
counterclaim drawing a jury trial and --
19
MR. BAIRD: Well, the idea I suppose of my
20
co -counsel was that he wanted to keep them
21
together because he felt that a jury would be
22
more likely to rule favorably for the Village.
23
And we were kind of -- my co -counsel and I
24
were at odds to the extent that I wanted things
25
to move along as quickly as they could, and
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
M
M
O
O
N
00a
O
0
U
U
LL
2
06
cr
W
CLQ
Ir
W
0
a.
W
ir
cc
W
a
J
O
O
U
cc
0
LL
36
1
although he also represents the Village, he has
2
a little bit different interests in things --
3
MR. TRINGALI: Yes.
4
MR. BAIRD: -- and felt that that was the
5
best approach.
6
I think that if you are going to go ahead
7
with and continue the litigation, then it is
8
worth attempting the summary judgment route or
9
the limited evidentiary route.
10
And the reason I say that is that that
11
takes us out of having to wait until February.
12
It also keeps the cost down. And in the event
13
you're unsuccessful because of the counterclaim
14
and the 1983 action that's part of the
15
counterclaim, if you're unsuccessful, there is
16
attorney fees available.
17
Now, we now have, though, in my opinion we
18
have started the clock over, because we have a
19
new defendant counterplaintiff in this case,
20
that being 421 Northlake.
21
So, really, I believe the attorney fee
22
clock under 1983 ought to start now as opposed
23
to all of the discovery and litigation that went
24
on previously.
25
And to that extent we have been fortunate
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500—B
WEST PALM BEACH, FLORIDA 33401
M
Cl)
T
cD
N
O
O
O
W
0
0
d
W
W
CLQ
a
Ir
W
ir
0
CL
W
CC
W
Q
J
O
O
U
75
rr
0
37
1
in that we may have been able to minimize any
2
damages -- damages being attorneys' fees -- in
3
this case that the village might incur.
4
But you really, you really do have to
5
decide, I think, as the threshold issue what is
6
the best business decision for the Village in
7
terms of continuing with litigation.
8
MAYOR NORRIS: So if we go the summary
9
judgment route, basically what we are doing is
10
we are getting a quicker legal answer to the
11
legal question as to what the standard is.
12
Okay, so we can get that and we can lose
13
and that doesn't necessarily mean we have lost
14
the case; we have just lost summary judgment.
15
We can go forward or we can do whatever we want
16
to in terms of backtracking at that point in
17
time.
18
My problem with jumping in and changing
19
the ordinance or the code the way we are talking
20
is we are just guessing; we are guessing whether
21
that's going to do it or not. And by making
22
whatever change we are talking about, we are
23
opening up a huge site, a huge additional site.
24
So why do that when we don't know that:
25
First of all, A, that they even are going to
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
M
CO
O
N
C)
O
00
0
0
6
LL
2
o6
W
CLQ
U)
W
W
Cr
0
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
apply either standard; or B, which standard they
are going to apply.
MR. TRINGALI: Well, I agree with you
except that we sure as heck know they are going
to apply some standard.
MAYOR NORRIS: It could be a totally
different standard.
MR. TRINGALI: What other one is there?
MR. BAIRD: Well, the standards that have
been used in Florida, when the Middle District
rendered its opinion, as part of that opinion it
went through all of the cases in Florida, and
there were seven of them, and it looked at those
cases in the context of per capita.
Those that were -- the range that was
acceptable for a constitutional ordinance was
one site per two thousand to seven thousand
population based on the opinions that have been
reached.
So you know that if you are above one to
seven, you are almost certain to lose.
The optimum chance for success is to get
that second site so that at least you can make
the credible argument that you are within that
standard that's been established in six or seven
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
Cl)
M
O
O
N
0
00
O
0
U
U
LL
2
06
W
CLa.Q
fr
W
ir
0
CL
W
M
Ir
W
U)
Q
J
O
O
U
0
39
1
different opinions.
2
MR. O' MEILIA: If we go for the summary
3
thing you are talking about, we need to have
4
that in play.
5
MR. BAIRD: Yes.
6
To give you any chance of winning.
7
MAYOR NORRIS: If you are going to argue
8
one of those two standards.
9
MR. BAIRD: Right.
10
MAYOR NORRIS: Or you will argue these
11
other sites that you listed and try to convince
12
the court that they do apply, they are likely
13
sites.
14
MR. BAIRD: I would argue those anyway.
15
Whether the court accepts them or not is going
16
to be another question.
17
MAYOR NORRIS: So do you have -- excuse
18
me.
19
Do you have to go in on the basis -- on
20
the summary judgment, and I should know this,
21
but on the summary judgment do you have to go in
22
and argue one of those two bases, standards?
23
MR. BAIRD: Yes. We would argue that --
24
MAYOR NORRIS: You have to?
25
MR. BAIRD: -- the law that should be
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
M
co
M
(0
N
T
O
O
co
0
U
U
U-
2
06
Cc
W
a
d
U)
W
0
IL
W
Cc
W
U)
Q
0
O
U
Ir
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
40
applied is the law recited by the St. Petersburg
case.
MR. O'MEILIA: I think if we are going to
proceed, I think we better make up our mind.
I am totally in favor of going ahead with
something.
And then we have got to decide -- well,
let's change the ordinance.
MR. TRINGALI: It just seems to me that is
our best chance of actually winning this.
MR. O'MEILIA: Let's change the ordinance
both ways. Let's change it for Ed Morse and
change the other part of the ordinance to take
care of that one little lot, just in case.
MR. TRINGALI: Are you talking about the
Eye Glass World?
MR. BAIRD: You mean subdividing it?
MR. O'MEILIA: Yes, and let him worry
about subdividing.
It's an unplatted lot.
MR. BAIRD: I should probably know this,
but can the Village on its own initiative
subdivide properties?
MR. O'MEILIA: No. But why should we have
to?
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
M
C0
O
(0
N
0
O
co
0
U
U
W
2
06
ir
W
a
U)
W
0
a
W
cr
Ir
W
Q
J
O
O
U
rr
0
LL
41
1
MR. BALDWIN: No, but --
2
MR. O'MEILIA: Why should we have to?
3
That's an unplatted lot, I think. In
4
fact, I know it's an unplatted lot. And if we
5
say that on this end of that lot he can he do it
6
-- I mean, the owner can split that lot any time
7
he wants to. He can subdivide that lot. In
8
fact, he can subdivide it without going through
9
a subdivision ordinance.
10
MR. BAIRD: Well, I can evaluate that, but
11
my initial reaction is that unless it's
12
subdivided, it's not going to qualify.
13
MR. O'MEILIA: And Fleishman is saying it
14
has got to be subdivided to apply.
15
MR. BAIRD: Correct.
16
MR. TRINGALI: It seems to me, though,
17
Tom, that at our last meeting you said you were
18
referring to -- and we had the map up, which
19
made it a lot easier -- but isn't there a piece
20
of property in there somewhere and the only
21
thing wrong with it is it's within so many feet
22
of property that's zoned residential?
23
MR. BAIRD: Yes.
24
MR. O'MEILIA: But it has to be
25
subdivided.
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
co
co
O
co
N
a
O
00
0
U
C`3
U-
2
od
W
rr
Q
rr
W
0
W
Cc
Cr
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
42
MR. BAIRD: Well, there is another
standard in your ordinance that says proximity
to somewhere --
MR. TRINGALI: Right.
MR. BAIRD: -- where a citizen resides,
something like that.
MR. O'MEILIA: An existing residence.
MR. BAIRD: It's my recollection that it's
actually a nonconforming site, but there is some
renters, tenants in there, and that if you
change that standard, that site, too --
MR. TRINGALI: That would then become a
third site.
MR. BAIRD: -- a third site would become
eligible.
MR. TRINGALI: But we could probably win
with two.
MR. BAIRD: Personally I would like to,
have three.
MR. TRINGALI: Well, I understand that,
but if we are going to fit into the Middle
District formula, we can fit in with two.
MR. BAIRD: Barely, yes.
MR. TRINGALI: Barely.
MAYOR NORRIS: Barely is good enough.
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
M
N
0
OD
0
0
U
U
LL
2
06
Cr
W
CLCLQ
U)
W
0
CL
W
M
W
W
Q
J
O
O
U
0
43
1
MR. TRINGALI: But barely is good enough.
2
MAYOR NORRIS: Yes.
3
MR. O'MEILIA: I don't see any sense, if
4
we are going to change something, we might as
5
well change the other one, too, and see if we
6
can't get three.
7
MAYOR NORRIS: Why do we want three? I
8
think that is what you are saying. Why do we
9
want three if two is all we need?
10
MR. O'MEILIA: Three won't hurt, though.
11
MR. TRINGALI: There is a greater chance
12
of somebody actually moving into number three.
13
I doubt very seriously anybody is going to get
14
Ed Morse Chevrolet out of there in our lifetime.
15
You know, the problem with --
16
MR. EISSEY: Not in mine.
17
MR. TRINGALI: -- the problem with Eye
18
Glass World is, you know, I got my glasses there
19
and I like the guy, but those places come and
20
go. Car dealerships generally don't.
21
MR. O'MEILIA: It wouldn't fit. Under our
22
current ordinances, you couldn't put anything on
23
that lot big enough to satisfy them.
24
I mean, with the parking requirement and
25
stuff like that...
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
Cl)
Cl)
O
N
C)
O
00
0
0
d
LL
2
o6
rr
W
a
Q
U)
M
W
F-
rr
0
IL
W
rr
W
U)
Q
J
O
O
U
0
44
1
MAYOR NORRIS: We have got to wrap this
2
up, so we need to decide what to do.
3
What do you want to do, Joe?
4
MR. TRINGALI: I say change -- do the Ed
5
Morse route. Change the C2 -- we have one C2
6
area in the Village. Say that --
7
MR. EISSEY: C1.
8
MR. TRINGALI: Or whatever it is, C1.
9
MR. EISSEY: C2 to C1.
10
MR. BALDWIN: Add a permitted use to C2;
11
only apply to Ed Morse --
12
MR. TRINGALI: Right, add the permitted
13
use in C2. And if by some disaster Ed Morse
14
goes out of business and if we do get stuck with
15
another one of these joints, that's probably the
16
best place for it anyway, next to the railroad
17
track.
18
MAYOR NORRIS: What about the restriction
19
against alcohol?
20
MR. TRINGALI: If we can get away with
21
doing that...
22
MR. O'MEILIA: I don't see how we can do
23
that, do you, George, unless we do a whole
24
new --
25
MR. BALDWIN: Well, Tom is way ahead of me
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
Cl)
M
M
O
N
coa
O
0
U
6
U-
2
06
Cr
W
Q
IL
U)
M
W
F-
cr
0
W
Ir
W
U)
Q
J
O
O
U
0
45
1
on this. I am aware that there is a case or
2
more than one case that says you can do that.
3
The problem you have is twofold with
4
Crystals: Number one, you're going to get right
5
back into a lawsuit with them because it is
6
going to hurt them financially; and number two,
7
they are going to raise some defenses along the
8
line that we permitted them and allowed them in
9
there and they have invested all their money on
10
the basis that they can serve alcohol, and that
11
we are just directing that at them.
12
I mean, I just think you would be back --
13
MAYOR NORRIS: But we haven't permitted
14
them.
15
MR. BALDWIN: Well, but they have been
16
allowed to serve it.
17
MR. O'MEILIA: We didn't permit them to do
18
the adult entertainment.
19
MR. BALDWIN: So I don't know that I am
20
inclined to put that with what you are trying to
21
decide right now.
22
MAYOR NORRIS: Okay. How do you feel
23
about that, Joe; leave it alone right now?
24
MR. TRINGALI: It seems to me the purpose
25
of this lawsuit is to get rid of Crystals. So
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
M
M
O
O
N
0
00
O
0
U
C3
U-
2 2
06
W
a
a
a
U)
Cr
W
Ir
0
a
W
cr
rr
W
a
J
O
O
U
cc
0
LL
46
1
if we win, we don't have a problem.
2
I mean, we have a new ordinance which
3
basically says we have two areas in the Village
4
where you can have adult entertainment. You can
5
entertain all you want, you just can't serve
6
alcohol.
7
Crystals would not be part of the picture,
8
unless I am missing something.
9
MR. O'MEILIA: Yes, it would. I hate to
10
say, but I think, like George said, it's going
11
to create another lawsuit.
12
MR. TRINGALI: Well, let's not create
13
another lawsuit. Let's leave that alone.
14
MAYOR NORRIS: Leave that alone for now.
15
And do you want to go the summary judgment
16
route, then?
17
MR. TRINGALI: Yes, go the summary
18
judgment route.
19
MR. BALDWIN: After the ordinance is in
20
place.
21
MR. TRINGALI: The Ed Morse is the
22
sacrificial lamb.
23
MAYOR NORRIS: Charlie, do you agree with
24
that approach?
25
MR. O'MEILIA: Yes.
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
M
Cl)
O
(0
N
0
0
00
0
0
6
W
od
M
W
CLILQ
U)
Ir
W
0
a -
W
ir
rr
W
Q
J
O
O
U
rr
0
U-
47
1
MAYOR NORRIS: Ed, do you agree with that
2
approach?
3
MR. EISSEY: Yes.
4
MAYOR NORRIS: I don't agree with that
5
approach. I don't want to add another site,
6
but --
7
MR. O'MEILIA: I am going to take a look
8
at that other eye glass thing, though, so...
9
MR. BAIRD: I think it's just important
10
that the record reflect that the Village council
11
is not taking action in this room to change --
12
MR. TRINGALI: No, I will --
13
MR. BAIRD: -- the C2 zoning, but there is
14
a consensus about the litigation strategy that
15
ought to be pursued.
16
MAYOR NORRIS: Right, and we have to
17
proceed on per staff --
18
MR. EISSEY: Right.
19
MR. TRINGALI: David, I agree with you.
20
Nobody wants another site. It's just that I
21
think if we go into the summary -- if we
22
continue the litigation without coming under
23
some standard, we are going to lose.
24
MAYOR NORRIS: Yes, it sounds like that,
25
and I would have hoped that we would have known
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
Cl)
Cl)
T
CD
N
0
000
0
0
0
6
LL -
13 13
od
W
iL
¢
rr
W
rrrr
0
CL
W
Cc
n:
W
W
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
about that before we filed the lawsuit or
shortly thereafter, instead of coming to this
point and then finding out we have a very bad
lawsuit and then we are in a situation of are we
going to drop the lawsuit and, you know, we
can't do that, or are we going to allow to
change the zoning and allow another site
potentially.
MR. O'MEILIA: These federal cases have
just come down.
MAYOR NORRIS: Anyway --
MR. BAIRD: Well, your decision about
sites was made when you adopted the ordinance.
MAYOR NORRIS: Yes, okay.
Do I have to say anything about we are
recessing this and going into --
MR. BALDWIN: No, we will say that in
there.
MR. EISSEY: Let the record show that I
thanked the reporter.
THE REPORTER: You are welcome.
(Thereupon, at 7:25 o'clock p.m., the
hearing was adjourned.)
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401
co
co
O
N
O
O
O
co
0
0
d
U-
06
rr
W
¢
U)
W
0
IL
W
W
U)
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
49
C E R T I F I C A T 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 17th da f June, 1998.
Jane Pastore
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500-B
WEST PALM BEACH, FLORIDA 33401