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HomeMy WebLinkAboutMinutes 11-17-1992 CITY COUNCIL REGULAR MEETING November 17 , 1992 A Regular Meeting of the Cape Canaveral City Council was held on November 17 , 1992 , at the City Hall Annex, 111 Polk Avenue, Cape Canaveral, Florida. The meeting was called to order at 7 : 32 P.M. by Mayor Joy Salamone. Pledge of Allegiance was led by Mayor Salamone. ROLL CALL: Mayor Joy Salamone Present Mayor Pro Tem John Porter Present Councilmember Joan Calvert Present Councilmember Rocky Randels Present Councilmember Ann Thurm Present Acting City Manager Bennett Boucher Present City Attorney John Kancilia Present City Clerk Faith Miller Present ADOPTION OF MINUTES: 1. Regular Meeting of November 5, 1992 . Motion by Mr. Porter, seconded by Mrs. Calvert to approve the minutes of the Regular Meeting of November 5, 1992 , as presented. Motion carried with members voting as follows: Mayor Salamone, For; Mayor Pro Tem Porter, For; Councilwoman Calvert, For; Councilman Randels, For; Councilwoman Thurm, For. OLD BUSINESS: 1. Motion Re: Authority to pursue purchase of two (2) lots located across from the City's Recreation Department. Motion by Mr. Randels, seconded by Mrs. Thurm to allow the City Manager and the City Attorney the authority to purchase two (2) lots located north of the Recreation Department at a purchase price of $76 , 500. Motion carried with members voting as follows: Mayor Salamone, For; Mayor Pro Tem Porter, For; Councilwoman Calvert, For; Councilman Randels, For; Councilwoman Thurm, For. 2 . Motion Re: Consideration of settlement offer for City of Cape Canaveral vs. Royal Mansions (Patrick Healy) . Motion by Mr. Randels, seconded by Mrs. Calvert not to consider the proposed settlement as presented by the attorney representing Royal Mansions and to forward a letter to Mr. Healy to instruct Mr. Wakefield that the offer was rejected. Motion carried with members voting as follows: Mayor Salamone, For; Mayor Pro Tem Porter, For; Councilwoman Calvert, For; Councilman Randels, For; Councilwoman Thurm, For. Mr. Kancilia advised that the case would proceed toward final resolution and as stated previously by Mr. Healy the discovery process would be completed and a motion would be submitted for summary judgement in favor of the City. If the City did not prevail on its motion for summary judgement, the case would eventually proceed to trial. NEW BUSINESS: Mayor Salamone and Mayor Pro Tem Porter presented a floral arrangement and an appreciation plaque to Mrs. Ann Thurm in recognition of the outstanding service she had provided to the City in her years as a Councilmember. Mr. Bruce Collins, Vice President of the Cape Canaveral Citizens Association, thanked Mrs. Thurm for her many years of service to Cape Canaveral and presented her with a bouquet of roses. Mrs. City of Cape Canaveral, Florida Regular City Council Meeting November 17 , 1992 Page 2 Thurm thanked everyone for their support during her years on the Council. A ten-minute break was taken at this time, after which the meeting was reconvened. 1. Oath of Office for new Councilmembers. Mr. John Kancilia, City Attorney, presented the Oath of Office to Mr. Robert J. Abbott and Mr. John K. Porter and both proceeded to their seats as members of the City Council of the City of Cape Canaveral. 2 . Discussion Re: City Attorney to review Council procedures. Mr. Kancilia, City Attorney, reviewed Council procedures and presented various items of interest to the new Councilmembers. He provided information which was relevant to the conduct of each Councilmembers' duties. 3 . Motion Re: Resolution No. 92-62 , electing Mayor Pro Tem. Mayor Salamone read the title of the Resolution. A RESOLUTION OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA; ELECTING A MAYOR PRO TEM OF THE CITY OF CAPE CANAVERAL; PROVIDING FOR AN EFFECTIVE DATE. Motion by Mayor Salamone, seconded Mrs. Calvert to adopt Resolution No. 92-62 with the name John Porter in Section One. Mr. Randels and Mayor Salamone spoke in favor of the selection. Motion carried with members voting as follows: Mayor Salamone, For; Mayor Pro Tem Porter, For; Councilman Abbott, For; Councilwoman Calvert, For; Councilman Randels, For. 4 . Motion Re: Resolution No. 92-63 , designating Councilmembers' areas of interest. Mayor Salamone read the title of the Resolution. A RESOLUTION OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA; DESIGNATING AREAS OF PRIMARY INTEREST OF INDIVIDUAL COUNCIL MEMBERS; PROVIDING FOR AN EFFECTIVE DATE. Motion by Mr. Randels, seconded by Mrs. Calvert to adopt Resolution No. 92-63 as presented. Motion carried with members voting as follows: Mayor Salamone, For; Mayor Pro Tem Porter, For; Councilman Abbott, For; Councilwoman Calvert, For; Councilman Randels, For. 5 . Motion Re: Resolution No. 92-61, approving the final plat of Sea View Townhomes. Mayor Salamone read the title of the Resolution. A RESOLUTION OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA; APPROVING THE FINAL PLAT OF "SEA VIEW TOWNHOMES" ; AUTHORIZING THE MAYOR AND THE CITY CLERK TO CERTIFY THE PLAT; PROVIDING FOR AN EFFECTIVE DATE. Motion by Mr. Randels, seconded by Mr. Porter to adopt Resolution No. 92-61. Mr. Randels spoke in favor of the Resolution. Motion carried with members voting as follows: Mayor Salamone, For; Mayor Pro Tem Porter, For; Councilman Abbott, For; Councilwoman Calvert, For; Councilman Randels, For. City of Cape Canaveral, Florida Regular City Council Meeting November 17 , 1992 Page 3 6. Motion Re: Resolution No. 92-64 , appointing an alternate member to the Code Enforcement Board. Mayor Salamone read the title of the Resolution. A RESOLUTION APPOINTING MEMBERS TO THE CODE ENFORCEMENT BOARD OF THE CITY OF CAPE CANAVERAL, FLORIDA; PROVIDING FOR AN EFFECTIVE DATE. Motion by Mr. Porter, seconded by Mr. Randels to adopt Resolution No. 92-64 appointing Gerald B. Reimer as the member and Gary L. Philips as the alternate to the Code Enforcement Board. Motion carried with members voting as follows: Mayor Salamone, For; Mayor Pro Tem Porter, For; Councilman Abbott, For; Councilwoman Calvert, For; Councilman Randels, For. 7 . Motion Re: Request to conduct Bungee Jumping from December 1, 1992 through May, 1993 at Cape Sierra. Motion by Mr. Randels, seconded by Mayor Salamone to approve the request by Cape Sierra to conduct the bungee jump in the front lot at Cape Sierra. Mr. Randels spoke in favor of the request and he stated that the association would have five million dollars of liability insurance. Motion by Mayor Salamone, seconded by Mrs. Calvert to amend the motion to include that the request be approved contingent upon state certification. Motion carried on the amendment with members voting as follows: Mayor Salamone, For; Mayor Pro Tem Porter, For; Councilman Abbott, For; Councilwoman Calvert, For; Councilman Randels, For. Motion carried on the main motion with members voting as follows: Mayor Salamone, For; Mayor Pro Tem Porter, For; Councilman Abbott, For; Councilwoman Calvert, For; Councilman Randels, For. 8 . Motion Re: Request to conduct Second Annual Florida State Car & Truck Championships on December 12-13 , 1992 , at Cape Sierra. Motion by Mr. Porter, seconded by Mrs. Calvert to approve the request by Cape Sierra to conduct the Second Annual Florida State Car & Truck Championships on December 12-13 , 1992 , at Cape Sierra contingent upon requirements of all ordinances being met. Motion carried with members voting as follows: Mayor Salamone, For; Mayor Pro Tem Porter, For; Councilman Abbott, For; Councilwoman Calvert, For; Councilman Randels, For. 9 . Motion Re: Ordinance No. 22-92 , amending Code of Ordinances, Chapter 727 , Public Area Construction Regulations, Section 727 . 05, Permit Fees, for first reading. Mayor Salamone read the title of the Ordinance. AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, AMENDING CHAPTER 727 , PUBLIC AREA CONSTRUCTION REGULATIONS, SECTION 727 . 05, ENTITLED "PERMIT FEES" OF THE CODE OF ORDINANCES TO REVISE THE AMOUNT CHARGED FOR THE ISSUANCE OF AN EXCAVATION PERMIT; BY PROVIDING FOR SEVERABILITY; BY REPEALING ALL ORDINANCES IN CONFLICT HEREWITH; AND PROVIDING AN EFFECTIVE DATE. Motion by Mr. Randels, seconded by Mr. Porter to approve Ordinance No. 22-92 at first reading. Motion carried with members voting as follows: Mayor Salamone, For; Mayor Pro Tem Porter, For; Councilman Abbott, For; Councilwoman Calvert, For; Councilman Randels, For. City of Cape Canaveral, Florida Regular City Council Meeting November 17 , 1992 Page 4 10. Motion Re: Ordinance No. 23-92 , amending Code of Ordinances, Chapter 729 , Outside Concerts, Festivals or Entertainment, for first reading. Mayor Salamone read the title of the Ordinance. AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, REPEALING AND RE-ENACTING CHAPTER 729 OF THE CITY CODE OF THE CITY OF CAPE CANAVERAL; REPLACING THE DEFINITION OF OUTSIDE CONCERTS, FESTIVALS OR ENTERTAINMENT WITH A DEFINITION OF OUTSIDE ENTERTAINMENT EVENTS TO INCLUDE SPORTING EVENTS; CHANGING REFERENCES TO THE CITY TREASURER TO THE CITY FINANCE DIRECTOR; AMENDING STANDARDS FOR SITE PREPARATION AND MAINTENANCE OF AN OUTSIDE ENTERTAINMENT EVENT IN ACCORDANCE WITH PART IV, CHAPTER 10D-25 OF THE FLORIDA ADMINISTRATIVE CODE; PERMITTING THE CITY COUNCIL TO SPECIFY INCREASED INSURANCE COVERAGE FOR OUTSIDE ENTERTAINMENT EVENTS; REPEALING ALL PORTIONS OF THE CODE IN CONFLICT HEREWITH; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. Motion by Mr. Porter, seconded by Mr. Randels to approve Ordinance No. 23-92 at first reading. Motion carried with members voting as follows: Mayor Salamone, For; Mayor Pro Tem Porter, For; Councilman Abbott, For; Councilwoman Calvert, For; Councilman Randels, For. 11. Motion Re: Authorization to auction surplus property. Motion by Mr. Randels, seconded by Mr. Porter to authorize the auction of vehicles and bicycles which were unclaimed in the City's storage area. Motion by Mayor Salamone, seconded by Mrs. Calvert to include additional miscellaneous, surplus City items in the auction. Mrs. Calvert asked Mr. Boucher to contact various organizations in the City to determine if they were interested in taking the bicycles, repairing them, and giving them to children for Christmas. Motion carried with members voting as follows: Mayor Salamone, For; Mayor Pro Tem Porter, For; Councilman Abbott, For; Councilwoman Calvert, For; Councilman Randels, For. Motion carried on the main motion with members voting as follows: Mayor Salamone, For; Mayor Pro Tem Porter, For; Councilman Abbott, For; Councilwoman Calvert, For; Councilman Randels, For. 12 . Discussion & Motion Re: Threatened legal action against the City by Robert Abbott regarding satellite antenna. Mr. R. Kimbark Lee, attorney with Lownes, Drosdick, Doster, Kantor & Reed of Orlando, Florida representing Robert J. Abbott, advised Mr. Abbott to step down from his seat temporarily while the item was being discussed. Mr. Abbott stepped down as advised by Mr. Lee. Mr. Lee explained that his experience was in litigation in federal courts. He stated that Federal law preempted local regulations that differentiated between satellite earth stations and other antennas and did not have a reasonable and clearly defined health, safety or aesthetic objective and impose unreasonable limitations or excessive costs on reception of satellite signals. Mr. Lee stated that Mr. Abbott's treatment by the City's Code Enforcement Board on the issue of the satellite dish had perhaps prompted him to become interested in pursuing a seat on the City Council. He urged members of the City Council to listen to his comments with an open mind. Mr. Lee advised that he planned to review the history of events that led up the potential lawsuit, the FCC regulations applicable to the case, the City's ordinance requirements for earth station City of Cape Canaveral, Florida Regular City Council Meeting November 17 , 1992 Page 5 antenna regulations, Mr. Abbott's particular circumstances in the case, the federal remedies available to Mr. Abbott and the settlement proposal. Mr. Lee summarized the following events: a) 1984 - Installation of 12-foot diameter, receive only, satellite dish on a 3-inch pipe on the west side of Mr. Abbott's duplex; b) 1985 - City adopted ordinance regulating earth station antennas, Mr. Abbott's satellite dish was grandfathered in; c) 1987 - Mr. Abbott moved out of the area and took the satellite dish down for maintenance reasons; d) March, 1992 - Mr. Abbott spoke to Mr. Jim Morgan, Building Official, who gave him authorization to reinstall the satellite dish without a building permit; e) July 1, 1992 - Mr. Abbott received stop order from Mr. Tom Kleving, Building Inspector/Code Enforcement Officer, after the reinstallation of the satellite dish; f) July 20, 1992 - Notice of violation issued which set a Code Enforcement Board (CEB) hearing for August 20, 1992 ; g) August 20, 1992 - CEB meeting at which the hearing was continued to allow additional review; h) September 17 , 1992 - CEB hearing continued; Mr. Abbott was ordered to detach and re-install the satellite dish or be fined; i) October 8 , 1992 - Mr. Abbott requested that the fines be waived while he pursued legal remedies; j ) October 14 , 1992 - Mr. Abbott received letter from Mr. Kleving that cited him for other violations, metal tool shed and porch that required building permits; k) October 22 , 1992 - CEB considered and denied Mr. Abbott's request for waiver of fees and re-hearing; 1) October 23 , 1992 - Mr. Abbott removed satellite dish under protest. Mr. Lee further reviewed the federal regulations (47 USC 25 . 104) that preempted the City's ordinances regarding earth stations. He reviewed each portion of the City's Code of Ordinances, Section 651. 61, which he felt were in conflict with the federal regulations. Mr. Lee further explained the necessary location of the satellite dish on Mr. Abbott's property in order to receive adequate reception and the conflicting provisions in the City's ordinances. He stated that there were a number of federal remedies available to Mr. Abbott including: a) Seek a declaration that the ordinance was preempted and unconstitutional; b) Seek to have the court enter an injunction to enjoin the Code Enforcement Board from enforcing its order; City of Cape Canaveral, Florida Regular City Council Meeting November 17 , 1992 Page 6 c) Seek a finding that his rights had been violated under the federal regulations (including the 1st Amendment right to free expression and the 14th Amendment right to due process and equal protection of the laws) ; d) Seek findings under federal regulations, 42 USC Section 1983 , regarding his right to sue and recover compensatory damages, and 42 USC Section 1988 , recovery of attorneys fees if he prevailed in litigation. Mr. Lee stated that the settlement proposal included the following: a) Immediate and retroactive repeal of the ordinance in question; b) Resolve to enact a new ordinance regulating earth station antennas after careful legal study; c) Reimbursement to Mr. Abbott of all legal fees (approximately $6, 500 to date) . Mayor Salamone thanked Mr. Lee for his presentation. Motion by Mayor Salamone to table the item until the meeting of December 1st to allow for further review by the City Attorney. Motion died for lack of a second. Mr. Porter stated that Mr. Abbott had indicated that unless the members of City Council took certain actions he would bring a lawsuit against the City. He suggested that Mr. Abbott confer further with his attorneys prior to filing a lawsuit against the City. Mr. Kancilia stated that the complaint had been served upon him on November 12 , 1992 . He stated that he had met with Mr. Lee, Mr. Abbott and the City Manager to discuss the basis of the complaint. He stated that the federal law was very complex. He stated that the FCC rule had been enacted one or two years after the City's ordinance. He stated that it was perhaps ambitious to attempt to settle the issue that evening given the complexity of the suit. He stated that the City Council needed to be fully informed and he and the City Council had not had adequate time to arrive at an informed decision regarding the disposition of the matter. Mayor Salamone felt that the deadline of six days was unfair to impose upon Council given the amount of research necessary for such a complicated matter. Mr. Lee stated that he did not know Mr. Abbott would actually be on the Council that evening; he had hoped to prompt a resolution of the matter prior to Mr. Abbott assuming his seat on the City Council. Motion by Mr. Randels, seconded by Mayor Salamone to table consideration of the matter until December 1, 1992 . Motion carried with members voting as follows: Mayor Salamone For Mayor Pro Tem Porter For Councilman Abbott Abstained Councilwoman Calvert For Councilman Randels For 13 . Monthly Activity Reports. No comments. 14 . City Manager's Report. Mr. Boucher stated that the new City Newsletter was available and City of Cape Canaveral, Florida Regular City Council Meeting November 17, 1992 Page 7 and he encouraged the public to read the newsletter. He also wished everyone a Happy Holiday season. Discussion: 1. Mr. Frank Martin questioned the federal law previously mentioned by Mr. Lee. Mayor Salamone stated that the issue was a tabled item and she asked that Mr. Martin ask his question at the December 1st City Council meeting. There being no further business, the meeting adjourned at 9: 58 P.M. Approved this 1st day of Decanter , 1992 . - � a , i. t t.). Jq C. alam ne, .YOR i l� f: ATTEST.. Ap4 , . A/ _ Faith . Mi le ' ITY- CLERK 1 jz r 41..: FORM 8B MEMORANDUM OF VOTING CONFLICT FOR COUNTY, MUNICIPAL, AND OTHER LOCAL PUBLIC OFFICERS I.ASI•NAME MRS -NAMMI MIDDLE NAME NAME OF BOARD.CCOUNCIL,('OMMISSION.AII111OKIl V.OR('OMM1171=F 43,8d / /7 /20,9t / D,7� /T Y ( MAII.IN(.AI)l)RISSS TIIE HOARD,COUNCIL COMMISSION.AIrr1IOKIIY OR COMMITTEE ON �y WHICH I SERVE IS A ANTI OI �/ 001/ Ae Y ❑ COUNTY ❑ UI IIEK I OCAI.AGENCY ('I IN COUNTY NAME OF POLITICAL.SUBDIVISION: VAO'777-///0„ C1/12/°E 0/51AAeiv:2tL 630-v4re. / E DISTRIBUTION DA I E ON WIII('ll VOI E OCCURREDMayor MY POSITION IS: � City Council / 7 �d���Y18 C7i Ea—hI PC11Vl: ❑ API'OIN'I1vI: City Mgr. City Atty. Pub.Works Dir. Building Off. Finance Dir. WHO MUST FILE FORM 8B � . This form is for use by any person serving at the county, city, or other local level of government on an appointed or elected board, council,commission, authority,or committee. It applies equally to members of advisory and non-advisory bodies who are presented with a voting conflict of interest under Section 112.3143, Florida Statutes. Your responsibilities under the law when faced with a measure in which you have a conflict of interest will vary greatly depending on whether you hold an elective or appointive position. For this reason, please pay close attention to the instructions on this form before completing the reverse side and filing the form. INSTRUCTIONS FOR COMPLIANCE WITH SECTION 112.3143, FLORIDA STATUTES LECTED OFFICERS: A person holding elective county, municipal, or other local public office MUST ABSTAIN from voting on a measure which inures to his special private gain. Each local officer also is prohibited from knowingly voting on a measure which inures to the special gain of a principal (other than a government agency) by whom he is retained. In either case, you should disclose the conflict: PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of your interest in the measure on which you are abstaining from voting; and /w1w�THIN 15 DAYS AFTER THE VOTE OCCURS by completing and filing this form with the person responsible for recording the minutes of the meeting, who should incorporate the form in the minutes. APPOINTED OFFICERS: A person holding appointive county, municipal, or other local public office MUST ABSTAIN from voting on a measure which inures to his special private gain. Each local officer also is prohibited from knowingly voting on a measure which inures to the special gain of a principal (other than a government agency) by whom he is retained. A person holding an appointive local office otherwise may participate in a matter in which he has a conflict of interest, but must disclose the nature of the conflict before making any attempt to influence the decision by oral or written communication, whether made by the officer or at his direction. IF YOU INTEND TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO TI-IE MEETING AT WHICH THE VOTE WILL BE TAKEN: • You should complete and file this form (before making any attempt to influence the decision) with the person responsible for recording the minutes of the meeting, who will incorporate the form in the minutes. • A copy of the form should be provided immediately to the other members of the agency. • The form should be read publicly at the meeting prior to consideration of the matter in which you have a conflict of interest. (Tr°KMxo-191 PAUL 1 1► sao t . w ., IFFY YOU MAKE NO ATTEMPT TO INFLUENCE THE DECISION EXCEPT BY DISCUSSION AT THE MEETING: You should disclose orally the nature of your conflict in the measure before participating. u should complete the form and file it within 15 days after the vote occurs with the person responsible for recording the minutes of the meeting, who should incorporate the form in the minutes. DISCLOSURE OF LOCAL OFFICER'S INTEREST I, .a i fi& / 'r a,. , hereby disclose that on ///49 J&-,-,93& /7 , 19 7e— : (a) A measure came or will come before my agency which (check one) Xinured to my special private gain; or inured to the special gain of , by whom I am retained. (b) The measure before my agency and the nature of my interest in the measure is as follows: 010 I rDD sr4YE S D esTe.►c 7-- Co u 2-r- r=o2 trt-f t_ vy►p a c 17l T2►c r of FLo21Di - , 024 o 71vt s ,o,.J, 20a ELT- .,• /lg8 a 7-7-- p6,4 ',yr, f- vc. Q tfio� CAPE ciyM'E,f - -,0!) . E.-<-0,��=,�t=.�7 ao9/.c 0 -7-7.4 Ci Tr o/ CAeag (.,9-;,/•4i/ c-, AD `7`D s ,, 12 E.t 41v . rij'c4,D,4x rs VI ,/ �i I r/1.</e6 /ft 2— Date Filed Signature NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES §112,317 (1985), A FAILURE TO MAKE ANY REQUIRED DISCLOSURE CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF THE FOLLOWING: IMPEACHMENT, REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION, REDUCTION IN SALARY, REPRIMAND, OR A CIVIL PENALTY NOT TO EXCEED $5,000. cr I caw$11-1-91 PAGE 2