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
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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
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Swom to and subscribed before me this 2Q day of T,~ D. 1998
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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
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Vice Mayor Charles O'Meilia
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President Pro Tem Edward Eissey
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Councilman Joseph Tringali
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Councilman Gail Vastola
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Village Manager Dennis Kelly
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Village Attorney George Baldwin
Consulting Attorney Counsel, Thomas J. Baird
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(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
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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
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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
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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
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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
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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
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in the County you said are not open. But I
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presume you're talking about existing
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facilities as compared to, what is.it
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called, theoretical opportunity based on the
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zoning.
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MR. BAIRD: Right.
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MR. KELLY: But have we looked at the
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unincorporated County in respect to that as
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far as potential sites?
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MR. BAIRD: We're also developing that.
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When I say our, I'm referring to the planner
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that we would retain, Jim Fleischman, and
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myself. Our goal is to show this judge how
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many theoretical opportunities there are and
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how many existing facilities there are.
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MR. EISSEY: That's good.
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MR. BAIRD: And when we're done with
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that, the graphic, the map that we're going
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to show him is.going to be dotted with
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something like 20 opportunities within a
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probably 10 mile radius of North. Palm Beach.
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MR. EISSEY: Red dots.
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MR. BAIRD: Big red dots, flashing red
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dots, or neon. And it will include -- by
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the way, Jupiter's ordinance is being
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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,
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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
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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.
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They don't have the hardship issue in front
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of them.
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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
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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
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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.
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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
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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
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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
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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.
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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?
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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
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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
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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.
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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.)
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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.)
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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.
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