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cocc_council_mtg_packet_20190521
CAPE CANAVERAL CITY COUNCIL MEETING City Hall Council Chambers 100 Polk Avenue, Cape Canaveral, Florida 32920 AGENDA May 21, 2019 6:00 P.M. CALL TO ORDER: PLEDGE OF ALLEGIANCE: ROLL CALL: PUBLIC PARTICIPATION: Any member of the public may address any items that do not appear on the agenda and any agenda item that is listed on the agenda for final official action by the City Council excluding public hearing items which are heard at the public hearing portion of the meeting, ministerial items (e.g. approval of agenda, minutes, informational items), and quasi-judicial or emergency items. Citizens will limit their comments to three (3) minutes. The City Council will not take any action under the "Public Participation" section of the agenda. The Council may schedule items not on the agenda as regular items and act upon them in the future. PRESENTATIONS/INTERVIEWS: 6:15 p.m. 6:20 p.m. Presentation of Proclamation declaring the week of May 18-25, 2019 as National Safe Boating Week to William Giers and Commander Lou Pernice, Flotilla 17-6, 7th District, United States Coast Guard Auxiliary. CONSENT AGENDA: 6:20 p.m. 6:25 p.m. 1. Approve Minutes for April 16, 2019 City Council Regular Meeting. 2. Resolution No. 2019-05; amending Appendix B, Schedule of Fees of the City Code related to assessment of Zoning, Building and other Permit Fees; providing for the repeal of prior inconsistent resolutions, incorporation into the Code, severability and an effective date. 3. Resolution No. 2019-09; becoming a member of the American Flood Coalition; providing for the repeal of prior inconsistent resolutions, severability and an effective date. 4. Approve Work Squad Contract #W1140 with Amendment 1 changes between the Florida Department of Corrections and the City of Cape Canaveral in the amount of $57,497, and authorize City Manager to execute same. PUBLIC HEARINGS: 6:25 p.m. 6:40 p.m. 5. Ordinance No. 09-2019; amending Section 110-28 of the City Code related to Due Process and Special Local Notice Requirements for certain zoning hearings; providing for the City of Cape Canaveral, Florida City Council Meeting May 21, 2019 Page 2 of 2 repeal of prior inconsistent ordinances and resolutions, incorporation into the Code, severability and an effective date, second reading. 6. Ordinance No. 10-2019; amending the City Code regarding the payment of impact fees; providing for the repeal of prior inconsistent ordinances and resolutions, incorporation into the Code, severability and an effective date, first reading. 7. Ordinance No. 11-2019; regarding Code Enforcement procedures; providing for a Special Magistrate Code Enforcement process; updating the procedures related to the Criminal Nuisance Abatement Board authorized by Section 8983.138, Florida Statutes; adopting conforming amendments; providing for the repeal of prior inconsistent ordinances and resolutions, incorporation into the Code, severability and an effective date, first reading. ITEMS FOR DISCUSSION: 6:40 p.m. 6:55 p.m. 8. Discussion on the opportunities and challenges to consider improving ocean and beach safety in the City of Cape Canaveral by funding and or drafting policy to add lifeguard services to protect the public health, safety and welfare of the community. (Council Member Morrison) 9. Discuss opportunities to allow "Food Trucks" or any other Mobile Food Vendor in the City limits of Cape Canaveral. (Council Member Morrison) 10. Discuss the addition of language to our ordinances in Section 2.05 which would give the City Manager explicit authority to approve correspondence methods and times between selected City Staff and the City Council. (Council Member Morrison) REPORTS: 6:55 p.m. 7:00 p.m. ADJOURNMENT: Pursuant to Section 286.0105, Florida Statutes, the City hereby advises the public that: If a person decides to appeal any decision made by the City Council with respect to any matter considered at this meeting, that person will need a record of the proceedings, and for such purpose that person may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the City for the introduction or admission into evidence of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. In accordance with the Americans with Disabilities Act: all interested parties may attend this Public Meeting. The facility is accessible to the physically handicapped. Persons with disabilities needing assistance to participate in the proceedings should contact the City Clerk's office (868-1220 x207 or x206) 48 hours in advance of the meeting. [City Seal] City of Cape Canaveral City Council Agenda Form City Council Meeting Date: 05/21/2019 PRESENTATIONS/INTERVIEWS Subject: Presentation of Proclamation declaring the week of May 18-25, 2019 as National Safe Boating Week to William Giers and Commander Lou Pernice, Flotilla 17-6, 7th District, United States Coast Guard Auxiliary. Department: Legislative Summary: With more than 100 members, the United States Coast Guard (USCG) Flotilla 17-6, 7th District Auxiliary for Central Brevard County, Florida is an all -volunteer component of the USCG. The Auxiliarist Team provides support in non-military, non -law enforcement areas such as boating courses, vessel safety checks, safety patrols, search and rescue, marine environmental protection and Coast Guard Academy youth introduction programs. Brevard County has a multitude of organizations involved in helping to educate the public such as the USCG and Coast Guard Auxiliary, Florida Fish and Wildlife Conservation Commission, United States Sail & Power Squadrons and the Brevard County Sheriff's Office Agriculture and Marine Unit. This includes Vessel Safety Checks, displaying the Safety Seal, always wearing a life jacket and attending the classroom version of "About Boating Safely" to attain a Florida Boating License. The National Safe Boating Council and the USCG Auxiliary is kicking off its 2019 Wear It! Safe Boating Campaign to educate the boating community about wearing lifejackets, taking the "About Boating Safely" course, having their boats receive a Safety Examination for the required equipment and promoting other safe boating practices. Present tonight are William Giers and Commander Lou Pernice, Flotilla 17-6, 7th District, United States Coast Guard Auxiliary to accept the Proclamation from the City. Submitting Director: Mia Goforth Date: 5/9/19 Attachment: Proclamation Financial Impact: Staff time and effort to prepare this Agenda Item. Reviewed by Administrative/Financial Services Director: John DeLeo Date: 5/9/19 The City Manager recommends that City Council take the following action: Present Proclamation to William Giers and Commander Lou Pernice, Flotilla 17-6, 7th District, United States Coast Guard Auxiliary. Approved by City Manager: David L. Greene Date: 5/9/19 [CITY SEAL] OFFICIAL PROCLAMATION CITY OF CAPE CANAVERAL, FLORIDA WHEREAS, the recreational boating season is approaching its maximum activity, Florida leads the nation in registered vessels with approximately 1 million and with over 22 million boaters using and enjoying Florida's beautiful waterways annually; and WHEREAS, approximately 650 boaters die each year, with Florida leading the nation in annual boating accidents and deaths, the leading cause of death, at 84.5%, being drowning even with "strong swimmers" and 70% of operators involved in accidents having no formal boater education; and WHEREAS, the National Safe Boating Council and the U.S. Coast Guard Auxiliary is kicking off its 2019 Wear It! Safe Boating Campaign to educate the boating community about wearing life jackets, taking the "About Boating Safely" course, having their boats receive a Safety Examination for the required equipment and promoting other safe boating practices; and WHEREAS, Brevard County has a multitude of organizations involved in helping to educate the public, including the U.S. Coast Guard and the Coast Guard Auxiliary, the Florida Fish and Wildlife Conservation Commission, the United States Sail & Power Squadrons and the Brevard County Sheriff's Office Agriculture and Marine Unit who all emphasize getting a Vessel Safety Check, displaying the Safety Seal, always wearing a life jacket, and attending the classroom version of About Boating Safely to attain their Florida Boating License; and WHEREAS, those who have taken the classroom version of "About Boating Safely", given by the Coast Guard Auxiliary or the U.S. Power Squadrons, have less than 1.9 % fatality rate; and WHEREAS, these organizations offer educational opportunities to the public, not only during Safe Boating Week, but throughout the year, using methods including, but not limited to, vessel inspections, safe boating classes, hands-on training, knot tying, GPS classes, flare use, boating guide pamphlets, fire extinguisher seminars, educational exhibits at marina openings and boating shows, classroom presentations and in -the -water life jacket demonstrations. NOW, THEREFORE, 1, Robert Hoog, Mayor of the City of Cape Canaveral, Brevard County, Florida, do hereby proclaim the week of May 18-25, 2019 as NATIONAL SAFE BOATING WEEK and urge all boaters to wear life jackets, learn more about safe boating practices, always act responsibly while on or near the water and take a safe boating class. Signed and Sealed this [blank] Day of [blank] [blank] Mayor [EMBOSSED CITY SEAL] Item No. 1 DRAFT CAPE CANAVERAL CITY COUNCIL REGULAR MEETING CITY HALL COUNCIL CHAMBERS 100 Polk Avenue, Cape Canaveral, Florida TUESDAY April 16, 2019 6:00 PM MINUTE S CALL TO ORDER: The Chair called the Meeting to Order at 6:00 PM. Council Member Morrison led the Pledge of Allegiance. ROLL CALL: Council Members Present: Mayor Pro Tem Mike Brown Mayor Bob Hoog Council Member Wes Morrison Council Member Rocky Randels Council Member Angela Raymond Others Present: City Manager City Attorney City Clerk Community Development Director Community Services Director Administrative/Financial Services Director Culture and Leisure Services Director Economic Development Director Executive Assistant to the City Manager Brevard County Sheriff's Office Lieutenant Canaveral Fire Rescue Assistant Chief/Fire Marshal David L. Greene Anthony Garganese Mia Goforth David Dickey Joshua Surprenant John DeLeo Gustavo Vergara Todd Morley Lisa Day Quincy Hines John Cunningham PRESENTATIONS/INTERVIEWS: Presentation of National Kindness Symbol Proclamation to Tropical Elementary School teacher Barbara Wilcox and students from Tropical Elementary School "Tropical Kingdom" TK -1: TK -1 Students introduced themselves and each read a portion of the Proclamation into the record. Mayor Hoog presented the framed Proclamation to Ms. Wilcox and Students. Presentation of Proclamation recoanizina the efforts of the Children's Home Society of Florida to Kenneth Parks, Distinwuished Gifts Manager, Children's Home Society of Florida: Staff received an email the day of the meeting that Mr. Parks would not be able to attend. PUBLIC PARTICIPATION: None. CONSENT AGENDA: Mayor Hoog inquired if any items needed to be removed for discussion. No items were removed. 1. Approve Minutes for March 19, 2019 City Council Regular Meeting. DRAFT City of Cape Canaveral, Florida City Council Regular Meeting April 16, 2019 Page 2 of 3 2. Resolution No. 2019-07: authorizing the execution of the Community Aesthetic Feature Agreement with the State of Florida Department of Transportation: providing for the repeal of prior inconsistent resolutions, severability and an effective date: 3. Resolution No. 2019-08: reappointing a Member to the Community Appearance Board of the City of Cape Canaveral: providing for the repeal of prior inconsistent resolutions, severability and an effective date. (Jalinda Coudrietl: A motion was made by Mayor Pro Tem Brown, seconded by Council Member Raymond, for approval of the Consent Agenda. The motion carried 5-0. PUBLIC HEARINGS: 4. Ordinance No. 08-2019: changing the Zoning Map Designation of certain real property generally located at 8550 Astronaut Boulevard in Cape Canaveral, Florida, and more particularly depicted and legally described on Exhibit "A" attached hereto, from "C-2 Commercial/Manufacturing" to "PD Planned Development" subiect to the Land Use Plan approved by the City Council in conjunction with this Ordinance: providing for the repeal of prior inconsistent ordinances and resolutions, severability and an effective date, second reading. (Tom C. Hermansen/Cane Canaveral Joint Venture, Applicant/Ownerl: City Attorney Garganese read the title into the record and summarized the Item. The Public Hearing was opened. There being no discussion, the Public Hearing was closed. Discussion ensued and included information and details of a meeting between Mr. Hermansen, representatives of the Florida Department of Transportation and City Staff regarding potential signalization of the intersection at Thurm Boulevard and State Road A1A, traffic issues and dangers of State Road A1A. A motion was made by Council Member Randels, seconded by Council Member Raymond, for adoption of Ordinance No. 08-2019 at second reading. The motion carried 5-0. 5. Ordinance No. 09-2019: amending Section 110-28 of the City Code related to Due Process and Special Local Notice Requirements for certain zoning hearings: providing for the repeal of Prior inconsistent ordinances and resolutions. incorporation into the Code. severabilitv and an effective date, first reading: City Attorney Garganese read the title into the record and summarized the Item. Discussion ensued and included advertising and noticing requirements related to zoning hearings, updating the City Zoning Map, comprehensive administrative re -zonings, expenses related to Staff handling Certified Mail, Certified Mail versus Regular Mail and courtesy notices, the City goes beyond meeting statutory minimum requirements, property rights and the intent to protect them, zoning application expenses that apply to applicants, history of City Code Section 110-28, progression of related computer technology, Noticing requirements and transparency; savings to taxpayers and property owners, liabilities, public perception and qualitative versus quantitative data. The Public Hearing was opened. Charles Hazelaar, 209 Canaveral Beach Boulevard, spoke in favor of continuing to use Certified Mail related to the Item and expressed his opinion that City Council decisions shape the future of the City. Patrick Campbell, 307 Surf Drive, expressed opposition to removing the requirement to use Certified Mail. The Public Hearing was closed. Discussion continued regarding Certified Mail, Regular Mail, tracking and anecdotal experience and professional knowledge of the United States Postal system shared by a Council Member who is a retired post master. A motion was made by Council Member Raymond, DRAFT City of Cape Canaveral, Florida City Council Regular Meeting April 16, 2019 Page 3 of 3 seconded by Mayor Pro Tem Brown, to approve Ordinance No. 09-2019 at first reading. The motion carried 4-1, with Council Member Morrison voting against. REPORTS: Mayor Pro Tem Brown discussed attendance at Brevard Homeless Coalition Board of Directors Meeting and the urgent need for providers of temporary housing, thanked City Staff for allowing Space Coast Little League to raise money at Friday Fest, met with Cape View Elementary School Staff regarding new playground equipment, and thanked City Staff for making Cape Canaveral a better City. Council Member Morrison discussed the success of Founders Day, looking forward to working on Strategic Planning Meeting items, announced Sea Turtle Season started in March and encouraged visiting the City website for more information, and expressed thanks to the Mayor, Council and Staff. Council Member Raymond discussed participating in the Aging Matters in Brevard 2019 March for Meals campaign with Mayor Pro Tem Brown and Council Member Morrison, the Strategic Planning Meeting and keeping the City moving in a positive direction, attended the 45th Space Wing installation of the Brigadier General Douglas A. Schiess at Patrick Air Force Base, a Brevard Schools Foundation meeting attended as Brevard Public Schools Board Member Cheryl McDougal's guest, the Florida League of Cities University Advanced Institute for Elected Municipal Officials and encouraged attendance at an upcoming Florida League of Cities University Spring Summit — Medical Marijuana: Past, Present, Future. Mayor Hoog thanked everyone for attending and introduced Brevard County District II Commissioner Brian Lober. Commissioner Lober indicated that even though Cape Canaveral is out in the most Northeastern corner of the District, he encourages bringing any concerns that Council might have to him. ADJOURNMENT: There being no further business, the Meeting adjourned at 7:31 PM. Bob Hoog, Mayor Mia Goforth, City Clerk, CMC [City Seal] City of Cape Canaveral City Council Agenda Form City Council Meeting Date: 05/21/2019 Item No. 2 Subject: Resolution No. 2019-05; amending Appendix B, Schedule of Fees of the City Code related to assessment of Zoning, Building and other Permit Fees; providing for the repeal of prior inconsistent resolutions, incorporation into the Code, severability and an effective date. Department: Community Development (CD) Summary: On August 15, 2017, the City Council passed Resolution No. 2017-15, which, for the first time in 30 years, updated a number of CD application fees and charges. This step was taken in response to increased costs over time in personnel, fuel, office supplies, records retention, permitting and equipment. In addition, Florida Statute and applicable City Codes have increased the required level -of -service provided to users of CD services. Over the past four years, inflation has been running between 1.8 and 2.1 percent annually. However, there remains several opportunities to capture revenue from the actual users of City provided services. This is in contrast to meeting Department needs from the General Fund, which is partly funded through ad -valorem (property taxes). With the current fee schedule, the Department's personnel and operating costs are augmented by the General Fund by approximately $129,000. The resulting impact is that the General Fund (ad -valorem) is subsidizing costs that can be attributed to individual development projects and/or individual property owners. It is important to note, that since the passage of Resolution No. 2017-15, CD has added several positions, notably to the Building and Code Enforcement Divisions. This was in direct response to Council's call for an increased effort to address blighted areas in the City. The total annual cost of these positions is $83,600. In addition, CD is in the process of upgrading/updating to a new software program to better serve its customers. Itis anticipated that the overall cost is going to be $201,000. Of this, $69,000 is being allocated to CD. This figure does not include soft costs (travel, training, etc.) as these costs will vary depending on needs. The City has already spent $22,250 towards this cost. It is recommended that the cost of providing this increased level -of -service to CD customers be captured through an increase in zoning and building fees (users of the service). Therefore, a revision to Appendix B, the City's Fee Schedule, is being proposed to continue the shift of meeting CD personnel costs onto actual users of the services. In so doing, the burden currently placed on the General Fund will be decreased, allowing freed up dollars to be spent on providing increased services to residents. The following revision to CD fees/charges are proposed: • Planning Division Fees: Planning - Division fees are a type of user fee paid by its customers. These include application fees for rezoning, comprehensive plan amendments, variances, etc. The City 2018/19 Budget includes a revenue of $1,000 for planning/zoning related fees. It is proposed that a 10 percent increase be implemented for all zoning related fees (Chapter 110). However, the application fee for a plat is proposed to be increased at a greater rate to cover associated costs. City Council Meeting Date: 05/21/2019 Item No. 2 Page 2 of 4 • Building Division Fees - Building fees are a user fee paid by customers when Department services are utilized. Currently, annual fees generated by building permits do not cover the cost of Department personnel. The City 2018/19 Budget includes a revenue of $307,000 for building permit related fees. Building/Code Enforcement personnel and operating costs are $436,000. Therefore, permit related fees only cover approximately 70 percent of these costs. The following fee revisions are proposed to assist the Department in attaining an enterprise type budget based on user fees to cover actual costs of providing services: • New Business Account Setup Fee - This fee is proposed for all initial new Business Tax Receipt (BTR) applications to set up a new business account to cover the administrative costs of processing the initial permit applications. New BTR business accounts require additional administrative staff time for setup that currently is not being accounted for or recovered by the City in the BTR rate. Potential revenue to cover this expense from this source is tied to the number of new BTR permit applications processed annually, which over the past several years has totaled: Year Number of Initial BTRs 2015/16 51 2016/17 190 2017/18 339 To determine best practices from around central Florida, a survey of local governments was conducted by CD Staff. The following municipalities collect a non-refundable BTR processing fee when a new business submits its initial BTR application: City Amount Melbourne $25.00 Palm Bay $25.00 Altamonte Springs $15.00 Maitland Commercial $35.00 Commercial (under 1,000 sq. ft.) $25.00 Daytona Beach (South) $10.00 New Smyrna Beach $80.19 St. Cloud $20.00 Winter Springs $25.00 The purpose of implementing the proposed setup fee is to cover the administrative cost of processing each new BTR application. It is estimated that Staff allocates approximately 1-2 hours for processing each new BTR application depending upon its complexity. Assuming an hourly rate of $26.75 for permit Staff time, the City cost to process a BTR can vary between $26.75 and $53.50. To better understand the time/effort expended on setting up a new business account, the following steps are taken for each: City Council Meeting Date: 05/21/2019 Item No. 2 Page 3 of 4 1. Review application to determine accuracy and sufficiency; 2. Confirm property is within City by search of Brevard County Property Appraiser website; 3. Determine if applicant is properly listed as a Limited Liability Company/Corporation; 4. Determine if applicant holds a state license through online search; 5. Input application into system; 6. Assign application proper business class; 7. Confirm correct address; 8. Scan all paper work; 9. Distribute to departments to include zoning, building, fire; 10. Print out BTR and call/email applicant to pick-up; and 11. Process payment through Springbrook. Assuming an annual number of 340 new permit applications (number of initial new BTR applications in FY 2017/18), a $30 processing fee would generate $10,200 annually. • Raising Base Building Permit (BP) Fee — Fees are based on the value of the proposed work. As an example, the BP fee for work valued at $500 or less is proposed to increase from $50 to $70, the fee for work valued between $501 and $1,000 is $90 and so on. The following tables provide a summary of the proposed changes to the fee schedule as well as possible new revenue from the proposed fees: Valuation Fee $500.00 or less $50.00$70.00 $501.00 to and including $1,000.00 $65.00$90.00 $1,001.00 to and including $2,000.00 $80.00$125.00 $2,001.00 to and including $20,000.00 $100.00$125.00 for the first $2,000.00 $5.00 for and each additional $1,000.00 or fraction thereof to and including $20,000.00 $20 001.00 to $100 000.00 $175.00$215.00 for the first $20,000.00 $5.00 for and each additional $1,000.00 or fraction thereof to and including $100,000.00 $100,001.00 to $500,000.00 $575.00$615.00 for the first $100,000.00 $4.00 for and each additional $1,000.00 or fraction thereof to and including $500,000 $500 001.00 and up $2,250.00$2475.00 for the first $500,000.00 $3.00 for and each additional $1,000.00 or fraction thereof City Council Meeting Date: 05/21/2019 Item No. 2 Page 4 of 4 Value of Work Permit Fee/Proposed # of Permits $500 or less $50 61 $70 $501 to $1,000 $65 111 $90 $1,001 to $2,000 $80 155 $125 $2,001 to $20,000 $100 882 $125 $20,001 to $100,000 $175 61 $215 $100,001 to $500,000 $575 11 $615 $500,001 and up $2,250 1 $2475 TOTAL TOTAL (proposed) Revenue $3,050 $4,270 $7,215 $9,990 $12,400 $19,375 $88,200 $110,250 $10,675 $13,115 $6,325 $6,765 $2,250 $2,475 $130,115 $166,240 The proposed increase in the base BP fee would generate an additional $36,125 annually. • Other Fees — It is proposed to implement two new user fees: Change of Contractor/Sub- Contractor ($30.00); and a Stormwater Review Fee. Currently the City does not charge for these services. The Stormwater Review fee ($55.00/hour) will be charged to offset the cost of the City's contracted Engineer reviewing stormwater plans, which is required for all development projects. Also, a number of other fees are being nominally increased to capture the City's increased costs of providing these services. Assuming the next twelve months are consistent with permit activity from the previous 12 months, the proposed fee revisions would generate approximately $46,325 in total new revenue. It is important to note that the new revenue will reduce the burden on the General Fund, which is currently subsidizing private, for-profit development activity. Submitting Department Director: David Dickey Date: 5/13/19 Attachment: Resolution No. 2019-05 with Exhibit "A" Financial Impact: Staff time and effort to prepare this Agenda Item. Reviewed by Administrative/Financial Services Director: John DeLeo Date: 5/12/19 The City Manager recommends that City Council take the following action: Adopt Resolution No. 2019-05 Approved by City Manager: David L. Greene Date: 5/13/19 RESOLUTION NO. 2019-05 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA; AMENDING APPENDIX B, SCHEDULE OF FEES OF THE CITY CODE RELATED TO ASSESSMENT OF ZONING, BUILDING AND OTHER PERMIT FEES; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT RESOLUTIONS, INCORPORATION INTO THE CODE, SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, the City of Cape Canaveral is granted the authority, under Section 2(b), Article VIII, of the State Constitution, to exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, the City Council desires to accomplish a more accurate realization of project value in the process of assessing permit fees for development activity; and WHEREAS, the City Council desires to update its permit application fees to more efficiently recover the costs associated with providing zoning, building and code enforcement services, and WHEREAS, the City Council believes updating the City's permit application fees will more accurately reflect the cost of providing these services and reduce the financial burden placed upon the General Fund; and WHEREAS, the City Council finds this Resolution to be in the best interest of the public health, safety and welfare of the citizens of Cape Canaveral. NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, AS FOLLOWS: Section 1. Recitals. The foregoing recitals are deemed true and correct and are incorporated herein by this reference as part of this Resolution. Section 2. Adoption of Amendment to Appendix B, Schedule of Fees. The City Council hereby adopts a revised Appendix B, Schedule of Fees, as more specifically set forth in EXHIBIT "A," which is hereby deemed fully incorporated herein by this reference. Note: (underlined type indicates additions and strikeout type indicates deletions, while asterisks (* * *) indicate a deletion from the text existing in Appendix B. It is intended that the text in Appendix B denoted by the asterisks shall remain unchanged from the language existing prior to adoption of this Resolution). Section 3. Repeal of Prior Inconsistent Resolutions. All prior inconsistent resolutions adopted by the City Council are hereby expressly repealed to the extent of the conflict. City of Cape Canaveral Resolution No. 2019-05 Page 1 of 2 Section 4. Incorporation Into Appendix B, Schedule of Fees. This Resolution and EXHIBIT "A" attached hereto shall be incorporated into Appendix B, Schedule of Fees, to the City of Cape Canaveral City Code and any section or paragraph, number or letter and any heading may be changed or modified as necessary to effectuate the foregoing. Grammatical, typographical and like errors may be corrected and additions, alterations and omissions, not affecting the construction or meaning of this Resolution and the City Code may be freely made. Section 5. Severability. If any section, clause, phrase, word or provision is for any reason held invalid or unconstitutional by a court of competent jurisdiction, whether for substantive or procedural reasons, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this Resolution. Section 6. Effective Date. This Resolution shall become effective immediately. ADOPTED at a Regular Meeting of the City Council of the City of Cape Canaveral, Florida, assembled this 21st day of May, 2019. ATTEST: Bob Hoog, Mayor Name FOR AGAINST Mia Goforth, CMC, Mike Brown City Clerk Bob Hoog Wes Morrison Approved as to legal form and sufficiency for the City of Cape Canaveral only by: Rocky Randels Angela Raymond Anthony A. Garganese, City Attorney City of Cape Canaveral Resolution No. 2019-05 Page 2 of 2 Resolution No. 2019-05 EXHIBIT "A" APPENDIX B -SCHEDULE OF FEESu Printed herein are the fees, rates and charges established by resolution of the city council. Subpart A. General Ordinances * * * Chapter 70. Taxation Article III. Occupational License Business Tax Local Business Tax Code Amount Section Business Tax Receipt Application Fee 30.00 1 70-69 (a) Transfer of license: (1) For transfer of location by same owner 3.00 70-80 (2) For transfer of ownership 3.00 70-80 * * Subpart B. Land Development Code Chapter 82. Buildings and Building Regulations Code Section 82-2 (A) Building permit fees. On all buildings, structures or alterations requiring a building permit, a fee set forth below shall be paid at the time the permit is issued: Permit fees by total valuation: Valuation Fee $500.00 or less $50.00$70.00 $501.00 to and including ) $1,000.00 $65.00$90.00 $1,001.00 to and $80.00$125.00 Page 1 of 6 Resolution No. 2019-05 EXHIBIT "A" including$2,000.00 $2,001.00 to and $100.00$125.00 for the first$2,000.00 and $5.00 for each additional including$20,000.00 $1,000.00 or fraction thereof to and including $20,000.00 $20,001.00 to $175.00$215.00 for the first$20,000.00 and $5.00 for each additional $100,000.00 $1,000.00 or fraction thereof to and including$100,000.00 $100,001.00 to $575.00$615.00 for the first$100,000.00 and $4.00 for each additional $500,000.00 $1,000.00 or fraction thereof to and including$500,000 $2,250.00$2475.00 for the first$500,000.00 and $3.00 for each additional $500,001.00 and up $1,000.00 or fraction thereof The total valuation for assessment of permit fees shall be based upon the actual contract price or ovidence of same cu"bmitsd with nppication. The total valuation for assessment of permit fees for new structures shall be based upon the actual construction contract price for the work required to be permitted including the contract price for anv new structure(s), with satisfactory evidence of same being submitted to the building official, or a construction cost estimate made by the building official, using the latest valuation data published by the International Code Council (I.C.C.), whichever is greater, except as otherwise provided in this section. In no case shall the valuation be less than that determined by using the latest valuation data published by the I.C.C. (B) Plan checking fee. In addition to any fee or fees charged in subsection (a) above: When the valuation of the proposed construction exceeds $1,000.00 and plans and/or specifications are required to be submitted, a plan checking fee shall be paid at the time the permit is issued. The plan checking fee shall be equal to one-half the building permit fee. Such plan checking fee shall be in addition to the building permit fee. When the valuation of the proposed construction exceeds $500,001.00, a nonrefundable plan review deposit shall be paid at the time of permit application submittal. Such deposit may not exceed the anticipated plan review fee. When a dispute exists in the review of the plans and specifications for construction, the applicant may request a hearing before the construction board of adjustment or its successor. (C) In addition to any fee or fees charged in subsections (A) and (B), a fee set forth below shall be paid at the time the permit is issued. Note: Reroofing, remodeling, alterations, additions and repairs permit fees shall be paid in accordance with subsections (A)and (B)only. Plumbing, new, residential, per bathroom $60.00$70.00 Plumbing, new, hotel/motel, per unit $60.00$70.00 Page 2 of 6 Resolution No. 2019-05 EXHIBIT "A" Plumbing, new, commercial, per bathroom $60.00$70.00 Sewer tap inspection fee $60.00$70.00 Electrical, new, single-family $100.00$110.00 Electrical, new, multifamily, per unit $75.00$85.00 Electrical, new, hotel/motel, per unit $60.00$70.00 Electrical, new, commercial, per unit $60.00$70.00 Mechanical, new, residential, per unit $75.00$85.00 Mechanical, new, hotel/motel, per unit $50.00$60.00 Mechanical, new, commercial, per system $50.00$60.00 Well, deep or shallow $50.00$60.00 Moving of building $150.00$160.00 Demolition of building $100.00$110.00 (D) Other fees: Per valuation table "A" Fire alarm permit plus fire department fee calculation Per valuation table "A" Fire sprinkler permit plus fire department fee calculation Preliminary review of construction plans $50.00 per hour or portion thereof Page 3 of 6 Resolution No. 2019-05 EXHIBIT "A" Change of Contractor/Sub-Contractor $30.00 Permit Revision Fee. Minimum half-hour charge $25.00 per half hour Stormwater Review Fee $55.00 per hour Non-Refundable Pcrmit Application Processing Fee $30.00$35.00 Reinspection fee—When extra inspection trips are necessary due to partial inspections, wrong address, second call on rejected or condemned work, additional work done after inspection has been made, or work not ready for $15.00$50.00 inspection when called, a charge of$45.00 shall be paid in advance for each additional inspection or at the discretion of the building official on large projects prior to issuance of a certificate of occupancy or completion Certificate of Occupancy $50.00 Failure to Obtain an approved Final Inspection $100.00$110.00 Work started prior to issuance of permit (ref. building code adopted by Double Permit Fee chapter 82 of this Code) Special Inspection (after-hours, weekend, holiday, arranged two days in $50.00 per hour advance). Minimum four-hour charge for weekends and holidays Final Inspection. Fine for failure to obtain a final approved inspection for a permit before it expires. No further permits may be issued to any contractor or $100.00$110.00 permit applicant with an outstanding fine or to any contractor with an expired permit due to failure to obtain a final inspection. Chapter 94. Signs Code Amount Section (a) Permit fee shall be calculated on actual contract cost using subsection (a) of Chapter 82 of Appendix B Page 4 of 6 Resolution No. 2019-05 EXHIBIT "A" (b) Reinspection fee /15.00 94-35 $50.00 (c) For commencing work without a permit, all fees shall be double 94-81 Temporary off-premises signs and banners and temporary nonresidential signs (d) 50.00 and 94- greater than 12 sq. ft. 4(7) Chapter 98. Subdivisions Code Amount Section (a) Variance application fee 250.00 98-4 (b) Plat fee schedule.The fee schedule for review of replat/subdivision of land shall 98-53 be: (1) One, two or three lots 37.50 500.00 (2) Four or more lots 50.00 600.00 Plus $7.50 per lot, not to exceed $500.00 750.00 (c) Resubmission. Changes to approved replat/subdivision of land shall be charged at a rate equal to 50 percent of the original fee. (d) Lot split 500.00 98-66 (e) Lot line adjustment 250.00 98-67 Page 5 of 6 Resolution No. 2019-05 EXHIBIT "A" Chapter 110. Zoning. Code Amount Section (a) Application for rezoning 750.00 110-92 825.00 (b) Application for proposed amendment to chapter 250.00 110-92 275.00 (c) Application for a special exception or variance 750.00 110-92 825.00 (d) Application for appeal of administrative decision 250.00 110-92 275.00 110- (e) Site plans: 223 (1) Fee schedule.The fee schedule for site plan review shall be: a. One,two and three residential units 750.00 825.00 750.00 b. Four or more residential units 825.00 c. Commercial structures 750.00 825.00 d. Extension of site plan 150.00 165.00 Resubmission. Changes to originally approved site plans shall be charged at a (2) rate equal to 50 percent of the original fee. (f) Zoning Compliance Letter 50.00 55.00 (g) Application for Development Review Committee 250.00 275.00 (h) Fence height exemption filing fee 35.00 110- 37.50 470 * * * Page 6 of 6 [City Seal] City of Cape Canaveral City Council Agenda Form City Council Meeting Date: 05/21/2019 Item No. 3 Subject: Resolution No. 2019-09; becoming a member of the American Flood Coalition; providing for the repeal of prior inconsistent resolutions, severability and an effective date. Department: Community Development Summary: The American Flood Coalition (Coalition) is a nonpartisan group of political, military, business and local leaders that have come together to drive adaptation to the reality of higher seas, stronger storms, and more frequent flooding. The Coalition seeks to advance national solutions that support flood -affected communities and protect our nation's residents, economy and military installations while advocating for proactive planning and smarter policies. The City of Cape Canaveral is vulnerable to sea level rise flooding and storm surge. The City applied for and was awarded a grant from the Florida Department of Environmental Protection's Florida Coastal Management Program (FCMP) and the National Oceanic and Atmospheric Administration (NOAA) to work with the East Central Florida Regional Planning Council (ECFRPC) to assess current and future vulnerabilities. After several months, community workshops and an online survey, the City is nearing the completion of its vulnerability assessment, which, once complete, will provide the City with a framework to better prepare for its vulnerabilities. Like the Coalition, the City believes that impacts from sea level rise and flooding are an important issue, one that requires regional and national coordination. Investing in adaptation planning and projects that reduce risk and protect home values and the highways, ports and other essential infrastructure is vital to our Community. In addition to the work currently underway with the ECFRPC, the City wishes to engage the Coalition to assist with national coordination and the support necessary for coastal cities to fully address the challenge of sea level rise and flooding. Joining the American Flood Coalition will aid the City's efforts to protect against flooding without requiring any financial support (dues or membership fees) from the City. Attachment 1 includes the participating Florida cities in the Coalition as of April 4, 2019. Submitting Department Director: David Dickey Attachments: 1 - Florida Participating Cities 2 - Resolution No. 2019-09 Financial Impact: Staff time/effort to prepare this Agenda Item. Date: 5/9/19 Reviewed by Administrative/Financial Services Director: John DeLeo Date: 5/9/19 The City Manager recommends that City Council take the following action: Adopt Resolution No. 2019-09. Approved by City Manager: David L. Greene Date: 5/9/19 Attachment 1 Florida Cities in American Flood Coalition (as of Anril 4, 2019) Coral Gables 49,631 St. Petersburg 253,693 St. Augustine 11,592 Ft. Lauderdale 178,752 Surfside 4,710 Pompano Beach 99,845 Sunny Isles Beach 15,399 South Miami 11,147 Delray Beach 65,055 Cutler Bay 40,286 Port Orange 56,048 Key Biscayne 12,344 Boca Raton 84,392 Hillsboro Beach 1,875 Aventura 35,762 Key West 22,682 Lauderdale -By -The -Sea 5,990 Hollywood 146,526 Highland Beach 3,988 Miami Shores 10,040 Miami Lakes 32,676 Coral Springs 121,096 Cocoa Beach 11,231 Punta Gorda 16,641 St. Augustine Beach 6,176 Venice 17,764 Boyton Beach 68,217 Stuart 15,593 Miami 417,650 Hallandale Beach 37,113 Ponce Inlet 3,032 Marathon 8,622 North Bay Village 6,733 Palmetto Bay 23,410 Bonita Springs 43,914 Attachment 2 RESOLUTION NO. 2019-09 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA; BECOMING A MEMBER OF THE AMERICAN FLOOD COALITION; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT RESOLUTIONS, SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, frequent flooding and flooding during high tides is already a costly nuisance and a problem that if unaddressed will grow worse as sea levels continue to rise; and WHEREAS, sea levels have risen eight inches since 1950 and its speed has increased threefold in recent years, with scientific projections forecasting another eight inches of sea level rise in the next twenty years; and WHEREAS, sea level rise of just four inches in the last ten years has increased flooding state-wide by 400%; and WHEREAS, sea level rise poses a unique threat to essential infrastructure in the City of Cape Canaveral and all of Florida due to rising sea water, stronger storms and flooding; and WHEREAS, proactively investing to prevent flooding is a wiser use of resources than spending on flooding recovery, as exemplified by FEMA research showing that every dollar ($1) spent on disaster prevention saves four dollars ($4) in recovery costs; and WHEREAS, national and regional coordination and support are necessary for coastal cities to fully address the challenge of sea level rise and flooding, and the American Flood Coalition provides a platform advocating for national solutions to sea level rise and flooding that invest in and protect our coastal communities; and WHEREAS, the American Flood Coalition is a forum for best practices and support in developing local and state -level responses to sea level rise and flooding that will enhance the City's sea level rise effort; and WHEREAS, sea level rise and flooding are important issues that our Community deserves to understand and the American Flood Coalition provides opportunities and tools to communicate with residents on sea level rise challenges and solutions; and WHEREAS, joining the American Flood Coalition will build on the City's current efforts and aid in future endeavors to protect against flooding without requiring any financial support or dues from the City of Cape Canaveral; and WHEREAS, the City has partnered with the East Central Florida Regional Planning Council via a grant from the Florida Department of Environmental Protection's Florida Coastal City of Cape Canaveral Resolution No. 2019-09 Page 1of 3 Management Program (FCMP) and the National Oceanic and Atmospheric Administration (NOAA) to assess the City of Cape Canaveral's vulnerabilities; and WHEREAS, the City of Cape Canaveral finds that joining the American Flood Coalition will promote the well-being of City residents and ensure the prosperity of the City economy by accelerating solutions to sea level rise and flooding. NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, AS FOLLOWS: Section 1. Recitals. The foregoing recitals are deemed true and correct and are hereby incorporated herein by this reference as a material part of this Resolution. Section 2. Pledge of Support. The City of Cape Canaveral recognizes and supports the need to advance national solutions to sea level rise and flooding and will work as a member of the American Flood Coalition to safeguard the welfare of the City's residents. Section 3. Repeal of Prior Inconsistent Resolutions. All prior resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of the conflict. Section 4. Severability. If any section, subsection, sentence, clause, phrase, word or portion of this Resolution is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion hereto. Section 5. Effective Date. This Resolution shall become effective immediately upon adoption by the City Council of the City of Cape Canaveral, Florida. ADOPTED at a Regular Meeting of the City Council of the City of Cape Canaveral, Florida, assembled this 21st day of May, 2019. [Signature Page follows] City of Cape Canaveral Resolution No. 2019-09 Page 2of 3 ATTEST: Mia Goforth, CMC City Clerk Approved as to legal form and sufficiency For the City of Cape Canaveral only by: Anthony A. Garganese, City Attorney Bob Hoog, Mayor Name FOR AGAINST Mike Brown Bob Hoog Wes Morrison Rocky Randels Angela Raymond City of Cape Canaveral Resolution No. 2019-09 Page 3of 3 [City Seal] City of Cape Canaveral City Council Agenda Form City Council Meeting Date: 05/21/2019 Item No. 4 Subject: Approve Work Squad Contract #W1140 with Amendment 1 changes between the Florida Department of Corrections and the City of Cape Canaveral in the amount of $57,497, and authorize City Manager to execute same. Department: Community Services Summary: Through the existing Work Squad Contract #W1140, the Florida Department of Corrections provides up to eight inmates and one Correctional Officer for ten hours per day (including travel time to/from Orlando), four days a week. The annual contract cost for this inmate labor work program is $57,497 which is less than the average cost of one City Infrastructure Maintenance Worker/Specialist (including wages and benefits). The inmates more than double our current labor capabilities — which provides the City with the ability to provide a higher quality of life, level of amenities and overall curb appeal to residents and visitors. Various City departments utilize inmate labor to address a number of routine tasks and special projects throughout the City. A sample of those tasks and recent special projects include: • Little League field maintenance • City landscaping — mowing, weeding and laying sod/mulch/coquina/rock • Tree maintenance and invasive species removal • Litter control along streets, beach, beach ends and in City parks • Painting of City facilities • Concrete and Flexipave installation — sidewalks, connectors, repairs and bike rack pads • Fence repair and replacement at City facilities • Baffle box and stormwater inlet sediment removal and cleaning • Cleaning City vehicles • Beach crossover maintenance • Mobi-mat installation, removal and maintenance • City events — stage, fencing and bench/seating installation • Special projects o Kairos Community Garden o Rover's Space o Wagner Park o Galactic Park o Annual Cape Canaveral Public Library book sale o Electric Vehicle charging stations Amendment 1 (Attachment 1) renews Work Squad Contract #W1140 for one year, updates the Agency Representative (City contact) to be Joshua A. Surprenant (Community Services Director) and states the effective date for Amendment 1 as October 1, 2019. The Work Squad Contract term is from October 1, 2018 to September 20, 2020, and may be renewed for up to a three-year period in whole or in part, after the initial contract period. A renewal option of two years remains in the Contract. City Council Meeting Date: 05/21/2019 Item No. 4 Page 2 of 2 Staff recommends City Council approve the Work Squad Contract #W1140 with Amendment 1 changes (Attachment 2). Submitting Department Director: Joshua A. Surprenant Date: 5/6/19 Attachments: 1. W1140 Amendment 1 2. Work Squad Contract #W1140 with Amendment 1 changes Financial Impact: $57,497 for Work Squad Contract #W1140 between Florida Department of Corrections and the City of Cape Canaveral funded by Citywide Operational Funds. Staff time and effort to prepare this Agenda Item. Reviewed by Administrative/Financial Services Director: John DeLeo Date: 5/6/19 The City Manager recommends that City Council take the following actions: Approve Work Squad Contract #W1140 with Amendment 1 changes between the Florida Department of Corrections and the City of Cape Canaveral in the amount of $57,497, and authorize City Manager to execute same. Approved by City Manager: David L. Greene Date: 5/6/19 FDC Logo FLORIDA DEPARTMENT of CORRECTIONS est. 1968 501 South Calhoun Street, Tallahassee, FL 32399-2500 April 10, 2019 Tim Carlisle City of Cape Canaveral 105 Polk Avenue Cape Canaveral, Florida 32932 Telephone: (321) 868-1240 RE: Work Squad Contract #W1140, Amendment #1 Dear Mr. Carlisle: Attachment 1 Govemor RON DESANTIS Secretary MARK S. INCH http://www.dc.state.fl.us Attached for signature is original in PDF format of Work Squad Contract #W1140, AMD#1 between the Department of Corrections and your organization. This Contract Amendment will begin on October 1, 2019 or upon signature of both parties and will end on September 30, 2020. To provide a seamless transition in contracting, please print two (2) copies of the attached original work squad contract amendment and have the two (2) originals signed and returned to this office, via Express Mail, as soon as possible. Once the Work Squad Contract has been executed by the Department, one (1) executed original of the Work Squad Contract will be returned to you by Express Mail. The address to return the Contract via express mail is: As a reminder, please be advised: Florida Department of Corrections Bureau of Procurement Attention: Mrs. Cristy Martin 501 South Calhoun Street Tallahassee, Florida 32399-2500 • to include the Work Squad Contract number (W1140) on all associated invoices and correspondence; • that changes to the scope of services or changes in pricing cannot be made except through a formal Contract amendment, executed by both parties, and issued by this office; • that services may not be provided after the expiration date unless the Work Squad Contract has been renewed or extended through a formal renewal/extension, executed by both parties and issued by this office; and • invoices may be submitted after the expiration date for services properly provided un to and including the expiration date of the Work Squad Contract. If there are any questions, please call me at (850) 717-3661. Sincerely, Mrs. Cristy 911artin Mrs. Cristy Martin Purchasing Analyst Bureau of Procurement *INSPIRING SUCCESS BY TRANSFORMING ONE LIFE AT A TIME * CONTRACT #W1140 AMENDMENT #1 CONTRACT BETWEEN THE FLORIDA DEPARTMENT OF CORRECTIONS AND CITY OF CAPE CANAVERAL This is an Amendment to the Contract between the Florida Department of Corrections ("Depaitinent") and the City of Cape Canaveral ("Agency"), to provide for the use of inmate labor in work programs. This Amendment: • Renews the Contract for one (1) year pursuant to Section I., B., Contract Renewal. and revises Section I., A., Contract Term. A renewal option of two (2) years remains in the Contract; • Revises Section IV., C., Agency's Representative; and • Revises Addendum A, third line. Original Contract Term: October 1, 2018 through September 30, 2019 In accordance with Section V., CONTRACT MODIFICATIONS, the following changes are hereby made: 1. Section I., A., Contract Term, is hereby revised to read: L A. Contract Term This Contract began on October 1, 2018, and shall end at midnight on September 30, 2020. 2. Section IV., C., Agency's Representative. is hereby revised to read: IV. C. Aaencv's Representative The name, address, and telephone number of the Agency's Representative is: Joshua Surprenant, Community Services Director City of Cape Canaveral 100 Polk Avenue Cape Canaveral, Florida 32920 Telephone: (321) 868-1240 Fax: (321) 868-1233 Email: J.Surprenantncityofcapecanaveral.org 3. Addendum A, third line, is hereby revised to read: Interagency Contract Number W1140, Amendment #1 Effective October 1, 2019. Page 1 of 5 CONTRACT #W1140 AMENDMENT #1 All other terms and conditions of the original Contract remain in full force and effect. This Amendment shall begin on the last date of signature by all parties. IN WITNESS THEREOF, the parties hereto have caused this Amendment to be executed by their undersigned officials as duly authorized. AGENCY: CITY OF CAPE CANAVERAL SIGNED BY: NAME: TITLE: DATE: FEIN: 59-0974636 FLORIDA DEPARTMENT OF CORRECTIONS Approved as to form and legality, subject to execution. SIGNED SIGNED BY: BY: NAME: Kasey B. Faulk NAME: Kenneth S. Steely TITLE: Chief, Bureau of Procurement TITLE: General Counsel DATE: DATE: Page 2 of 5 Revised Addendum A Inmate Work Squad Detail of Costs for City of Cape Canaveral Interagency Contract Number W1140, Amendment #1 Effective October 1, 2019 ***ENTER MULTIPLIERS IN SHADED BOXES ONLY IF TO BE INVOICED TO AGENCY*** IPer Officer I I Total I Annual Cost I Annual Cost I. CORRECTIONAL WORK SQUAD OFFICER SALARIES AND POSITION RELATED-EXPENSES TO BE REIMBURSED BY THE AGENCY: Officers Salary #Officer; Multiplier 1 $ 54,194.00 ** $ 54,194.00 Salary Incentive Payment $ 1,128.00 $ 1,128.00 Repair and Maintenance $ 121.00 $ 121.00 State Personnel Assessment $ 354.00 $ 354.00 Training/Criminal Justice Standards $ 200.00 $ 200.00 Uniform Purchase $ 400.00 $ 400.00 Uniform Maintenance $ 350.00 $ 350.00 Training/Criminal Justice Standards * N/A TOTAL-To Be Billed By Contract To Agency $ 56,747.00 $ 56,747.00 *Cost limited to first year of contract as this is not a recurring personnel/position cost. **Annual cost does not include overtime pay. IA. The Overtime Hourly Rate of Compensation for this Contract is$31.85, if applicable. (The Overtime Hourly Rate of Compensation shall include the average hourly rate of pay for a Correctional Officer and the average benefit package provided by the department, represented as time and one half for purposes of this Contract.) I Number I I Total I Squads Annual Cost II. ADMINISTRATIVE COSTS TO BE REIMBURSED BY THE AGENCY: Costs include but may not be limited to the following: Rain coats, staff high visibility safety vest, inmate high visibility safety vest, fire extinguisher, first aid kit, personal protection kit, flex cuffs, warning signs, handcuffs, Igloo coolers, portable toilets, insect repellants, masks, vaccinations, and other administrative expenses. 1 $ 750.00 TOTAL-To Be Billed By Contract To Agency $ 750.00 111. ADDITIONAL AGENCY EXPENSES: Tools, equipment, materials and supplies not listed in Section II above are to be provided by the Agency. CELLULAR PHONE WITH SERVICE REQUIRED: YES I xI NO ❑ ENCLOSED TRAILER REQUIRED: YES ❑ NO n Addendum A Revised 06-02-03/01-12-04 Page 3 of 5 Revised Addendum A Inmate Work Squad Detail of Costs for City of Cape Canaveral Interagency Contract Number W1140, Amendment #1 Effective October 1, 2019 Per Unit I I Number I I Total I I Bill To I Provided Already IV. OPERATING CAPITAL TO BE ADVANCED BY AGENCY: Cost of Units Cost Agency By Agency Exists Hand Held Radio MACOM $4969.00 Vehicle Mounted Radio MACOM $5400.00 ❑ $ - ❑ ❑ ❑ TOTAL Operating Capital To Be Advanced By Agency $ - Total V. TOTAL COSTS TO BE ADVANCED BY AGENCY: Cost 1. Operating Capital -from Section IV. $0.00 2. Grand Total -To Be Advanced By Agency At Contract Signing: $0.00 VI. TOTAL COSTS TO BE BILLED TO AGENCY BY CONTRACT: I Total I Cost 1. Correctional Officer Salaries and Position-Related Expenses-from Section I. $56,747.00 2. Other Related Expenses and Security Supplies-from Section II. $750.00 3. Grand Total -To Be Billed To Agency By Contract: $57,497.00 VII. TOTAL OF ALL COSTS ASSOCIATED WITH CONTRACT: 1 $57,497.00' (Total of Sections V. and VI.) VIII. OVERTIME COSTS: If the contracting Agency requests overtime for the work squad which is approved by the Department, the contracting Agency agrees to pay such costs and will be billed separately by the Department for the cost of overtime. Addendum A Revised 06-02-03/01-12-04 Page 4 of 5 Revised Addendum A- INSTRUCTIONS Inmate Work Squad Detail of Costs for City of Cape Canaveral Interagency Contract Number W1140, Amendment #1 Effective October 1, 2019 Section I. Costs in this section are determined each fiscal year by the Budget and Management Evaluation Bureau and are fixed. By entering the number of Officers required for this contract, the spreadsheet will automatically calculate the "Total Annual Cost" column. If this Work Squad is beyond the first year of existence, enter a zero (0) in the "Total Annual Cost" column for"Training/Criminal Justice Standards"after you have entered the "#Officers Multiplier". Section 11. Safety and environmental health procedures require safety measures such as the use of safety signs, vests, and clothing. The Department's procedure for Outside Work Squads requires that all Work Squad Officers be responsible for ensuring their squad is equipped with a first aid kit and a personal protection equipment(PPE) kit. Section 11 identifies such required equipment. A new squad must be sufficiently equipped and an on-going squad must be re-supplied when needed. Type in the number of squads used for this contract and the spreadsheet will automatically calculate the fixed annual expense of$750.00 per squad and place the total in Section VI. Section 111. Check"Yes"or"No"to indicate whether a Cellular Phone with Service and/or an Enclosed Trailer is required by the Contract Manager. Section IV. The Department's procedure for Outside Work Squads requires that they have at least one (1) primary means of direct communication with the Institution's Control Room. Communication via radio and/or cellular phone is appropriate. It is preferred that a backup, secondary means of communication also be available. It is the Agency's responsibility to provide them. If the Department purchases a radio(s), the Agency must fund the purchase at the time the Contract is signed. Check the box for the type of radio and fill in the Per Unit Cost for the type of radio, Number of Units, and Total Cost columns. Leave the Total Cost column blank if a radio(s) is not being purchased at this time. Check applicable boxes ("Bill to Agency", "Provided by Agency" and "Already Exists")for each radio. NOTE: All radio communication equipment owned or purchased by the Agency that is programmed to the Department's radio frequency and used by the work squad(s), whether purchased by the Department or the Agency, shall be IMMEDIATELY deprogrammed by the Department at no cost to the Agency upon the end or termination of this Contract. Section V. The total funds the Agency must provide at the time the contract is signed will be displayed here when the form is properly filled out. Section VI. The total funds the Agency will owe contractually, and pay in equal quarterly payments, will be displayed here. Section VII. The total funds associated with the Contract, to be paid by the Agency as indicated in Sections V. and VI., will be displayed here. Section VIII. Any agreement in this area will be billed separately as charges are incurred. Addendum A Revised 06-02-03/01-12-04 Page 5 of 5 Attachment 2 CONTRACT # W1140 CONTRACT BETWEEN THE FLORIDA DEPARTMENT OF CORRECTIONS AND CITY OF CAPE CANAVERAL This Contract is between the Florida Department of Corrections ("Department") and the City of Cape Canaveral ("Agency"), which are the parties hereto. WITNESSETH WHEREAS, Sections 944.10(7) and 946.40, Florida Statutes (F.S.), and Rules 33-601.201 and 33-601.202, Florida Administrative Code (F.A.C.), provide for the use of inmate labor in work programs; WHEREAS, inmate labor will be used for the purposes of providing services and performing work under the supervision of the Department's staff; WHEREAS, the City of Cape Canaveral is a qualified and willing participant with the Department to contract for an inmate work squad(s); and THEREFORE, the parties hereto find it to be in their best interests to enter into this Contract, and in recognition of the mutual benefits and considerations set forth, the parties hereto covenant and agree as follows: L CONTRACT TERM/RENEWAL A. Contract Term This Contract began on October 1, 2018, and shall end at midnight on September 30, 2020. B. Contract Renewal This Contract may be renewed for up to a three (3) year period, in whole or part, after the initial Contract period, and upon the same terms and conditions contained herein. The Contract renewal is at the Agency's initiative with the concurrence of the Department. The decision to exercise the option to renew should be made no later than 60 calendar days prior to the Contract expiration. Page 1 of 13 Master Document Revised 08/04/17 CONTRACT # W1140 II. SCOPE OF CONTRACT A. Administrative Functions 1. Each party shall cooperate with the other in any litigation or claims against the other party as a result of unlawful acts committed by an inmate(s) performing services under this Contract between the parties. 2. Each party will retain responsibility for its personnel, and its fiscal and general administrative services to support this Contract. 3. Through their designated representatives, the parties shall collaborate on the development of policies and operational procedures for the effective management and operation of this Contract. B. Description of Services 1. Responsibilities of the Department a. Pursuant to Rule 33-601.202(2)(a), F.A.C., supervision of the work squad(s) will be provided by the Department. The Department shall provide one (1) Correctional Work Squad Officer position to supervise an inmate work squad. This Contract provides for one (1) work squad of up to eight (8) inmates. b. The Department shall ensure the availability of the work squad(s) except: when weather conditions are such that to check the squad(s) out would breach good security practices; when the absence of the Correctional Work Squad Officer is necessary for reasons of required participation in training or approved use of leave; when the officer's presence is required at the institution to assist with an emergency situation; when the officer is ill; or when the Correctional Work Squad Officer position is vacant. In the event a position becomes vacant, the Department shall make every effort to fill the position(s) within five (5) business days. c. For security and other reasons, the Department shall keep physical custody of the vehicle furnished by the Agency. Unless otherwise specified, the Agency shall maintain physical custody of all Agency trailers and all tools, equipment, supplies, materials, and personal work items (gloves, boots, hard hats, etc.) furnished to the Department by the Agency. The Agency is responsible for the maintenance of all furnished equipment. d. In the event of damage to property as a result of an accident charged to a Department employee or blatant acts of vandalism by inmates, or loss of tools and equipment, the Agency may request that the Department replace or repair to previous condition the damaged or lost property. e. The Department shall be reimbursed by the Agency for the Department's costs associated with this Contract in accordance with Addendum A. Once the Agency reimburses the Department for the costs reflected on Addendum A, Section II., these items will be placed on the Department's property records, as appropriate, and upon the end or termination of this Contract such items will be transferred to the Agency. Page 2 of 13 Master Document Revised 08/04/17 CONTRACT # W1140 f. The Department shall, to the maximum extent possible, maintain stability in the inmate work force assigned to the work squad on a day-to-day basis in order to maximize the effectiveness of the work squad. g - The Department shall provide food and drinks for inmates' lunches. h. The Department shall be responsible for the apprehension of an escapee and handling of problem inmates. The Department shall provide transportation from the work site to the correctional facility for inmates who refuse to work, become unable to work, or cause a disruption in the work schedule. i. The Department shall be responsible for administering all disciplinary action taken against an inmate for infractions committed while performing work under this Contract. j. The Department shall provide for medical treatment of ill or injured inmates and transportation of such inmates. k. The Department shall provide inmates with all personal items of clothing appropriate for the season of the year. 1. The Department shall be responsible for driving the Correctional Work Squad Officer and the inmates to and from the work site. m. Both parties agree that the Department is making no representations as to the level of skills of the work squad. 2. Responsibilities of the Agency a. The Agency shall periodically provide the Department's Contract Manager, or designee, with a schedule of work to be accomplished under the terms of this Contract. Deviation from the established schedule shall be reported to, and coordinated with, the Department. b. If required, the Agency shall obtain licenses or permits for the work to be performed. The Agency shall provide supervision and guidance for projects that require a permit or which require technical assistance to complete the project. c. The Agency shall ensure that all projects utilizing inmates are authorized projects of the municipality, city, county, governmental Agency, or non-profit organization and that private contractors employed by the Agency do not use inmates as any part of their labor force. d. The Agency shall retain ownership of any vehicles or equipment provided by the Agency for the work squad. The Agency shall maintain its own inventory of transportation, tools, and equipment belonging to the Agency. e. The Agency shall provide vehicles for transportation of the work squads and is responsible for the maintenance of said vehicle. Page 3of13 Master Document Revised 08/04/17 CONTRACT # W1140 3. Communications Equipment It is the intent of this Contract that the work squad maintains communication with the institution at all times. A method of communication (radios, cellular phone, etc.), shall be provided at no cost to the Department. The Agency shall provide a primary method of communication that shall be approved by the Department's Contract Manager, or designee, in writing, prior to assignment of the work squad. Depending upon the method of communication provided, the Department's Contract Manager, or designee, may require a secondary or back-up method of communication. All radio communication equipment owned or purchased by the Agency that is programmed to the Department's radio frequency and used by the work squad(s), whether purchased by the Department or the Agency, shall be IMMEDIATELY deprogrammed by the Department, at no cost to the Agency, upon the end or termination of this Contract. Under no circumstances shall the Agency accept the return of radio communications equipment provided to the Department under this Contract until such time as the radio communications equipment has been deprogrammed by the Department. At the end or termination of this Contract, the Department's Contract Manager, or designee, will contact the Department's Utility Systems/Communications Engineer in the Office of Institutions to effectuate the deprogramming of radio communications equipment provided by the Agency. a. Vehicle Mounted Radios: Vehicles provided by the Agency, that are or that will be equipped with a mobile/vehicle mounted radio programmed to the Department's radio frequency(ies), will be retained by the Department to ensure security of the communication equipment except for short durations dictated by the need for vehicle and/or communications equipment maintenance and/or repair. The use of these vehicle(s) during the period covered by this Contract shall not be for any purpose other than as indicated in this Contract. b. Hand -Held Radios: Hand-held radios provided by the Agency, that are or that will be programmed to the Department's radio frequency(ies), will be retained by the Department to ensure security of the communication equipment except for short durations dictated by the need for maintenance and/or repair. The use of any hand-held radio(s) provided by the Agency that is programmed to a Department radio frequency utilized by the Agency during the period covered by this Contract shall not be for any purpose other than as indicated in this Contract. c. Cellular Phones: Cellular phones may be utilized by the Correctional Work Squad Officer as either a primary or secondary means of communication as approved by the Department's Contract Manager. The Department's Contract Manager, or designee, shall designate whether the usage of a cellular phone is required on Addendum A. The cellular phone will be retained by the Department and, upon the end or termination of this Contract, returned to Page 4 of 13 Master Document Revised 08/04/17 CONTRACT # W1140 the Agency. The use of the cellular phone is not authorized for any purposes other than as indicated in this Contract. 4. Other Equipment The Department's Contract Manager shall determine if an enclosed trailer is required for the work squad to transport tools and equipment utilized in the performance of this Contract, and shall notify the Agency if a trailer is necessary. The Department's Contract Manager, or designee, shall designate whether the usage of an enclosed trailer is required on Addendum A. If a trailer is required, it will be provided by the Agency at no cost to the Department. If the Department is to maintain control of the trailer when the squad is not working, the Agency shall provide an enclosed trailer that can be secured when not in use. All tools and equipment utilized by the work squad shall be secured in the trailer. The Department shall maintain an inventory of all property, expendable and non -expendable, which is in the custody and control of the Department. Upon the end or termination of this Contract, the trailer and any non - expendable items will be returned to the Agency. III. COMPENSATION A. Payment to the Department 1. Total Operating Capital To Be Advanced By The Agency, as delineated in Section IV., of Addendum A, shall be due and payable upon execution of the Contract. The Department will not proceed with the purchase until payment, in full, has been received and processed by the Department's Bureau of Finance and Accounting. Delays in receipt of these funds may result in start-up postponement or interruption of the services provided by the work squad. 2. Total Costs To Be Billed To The Agency By Contract, as delineated in Section VI., of Addendum A, will be made quarterly, in advance, with the first payment equaling one-fourth (1/4) of the total amount, due within two (2) weeks after the effective date of the Contract. The second quarterly payment is due no later than the 20th calendar day of the last month of the first Contract quarter. Payment for subsequent consecutive quarters shall be received no later than the 20th calendar day of the last month of the preceding Contract quarter. 3. In the event the Correctional Work Squad Officer position becomes vacant and remains vacant for a period of more than five (5) business days, the next or subsequent billing will be adjusted by the Department for services not provided. 4. The Agency shall insure any vehicles owned by the Agency used under this Contract. 5. The rate of compensation shall remain in effect through the term of the Contract or subsequent to legislative change. In the event there is an increase/decrease in costs identified in Addendum A, this Contract shall be amended to adjust to such new rates. Page 5 of 13 Master Document Revised 08/04/17 CONTRACT # W1140 B. Official Payee The name and address of the Department's official payee to whom payment shall be made is as follows: Florida Department of Corrections Bureau of Finance and Accounting Attn: Professional Accountant Supervisor Centerville Station Call Box 13600 Tallahassee, Florida 32317-3600 C. Submission of Invoice(s) The name, address, and phone number of the Agency's official representative to whom invoices shall be submitted is: David L. Greene, City Manager City of Cape Canaveral 100 Polk Avenue Cape Canaveral, Florida 32920 Telephone: (321) 868-1220 Fax: (321) 868-1248 Email: d.greene I/cityofcanecanaveral.org IV. CONTRACT MANAGEMENT The Depaitinent will be responsible for the project management of this Contract. The Depaitnient has assigned the following named individuals, addresses, and phone numbers as indicated, as the Department's Contract Manager and the Department's Contract Administrator for the Project. A. Denaltinent's Contract Manager The Department's Field Office Manager of Central Florida Reception Center is designated as the Depaitinent's Contract Manager and is responsible for enforcing performance of the Contract terms and conditions and shall serve as a liaison with the Agency. The title, address, and telephone number of the Department's Contract Manager for this Contract is: Field Office Manager Central Florida Reception Center 7000 H. C. Kelley Road Orlando, Florida 32831-2518 Telephone: (407) 208-8187 Email: Johnnie Pleicones@fdc.mvflorida.com B. Department's Contract Administrator The Department's Contract Administrator is responsible for maintaining a Contract file on this Contract service and will serve as a liaison with the Department's Contract Manager. The title, address, and telephone number of the Department' s Contract Administrator for this Contract is: Page 6 of 13 Master Document Revised 08/04/17 CONTRACT # W1140 Contract Administrator Bureau of Procurement Florida Depaitnient of Corrections 501 South Calhoun Street Tallahassee, Florida 32399-2500 Telephone: (850) 717-3681 Fax: (850) 488-7189 C. Agency's Representative The name, address, and telephone number of the Agency's Representative is: Joshua Surprenant, Community Services Director City of Cape Canaveral 100 Polk Avenue Cape Canaveral, Florida 32920 Telephone: (321) 868-1240 Fax: (321) 868-1233 Email: j.surprenant(a(cityofcapecanaveral.org D. Changes to Designees In the event that different representatives are designated by either party after execution of this Contract, notice of the name and address of the new representatives will be rendered, in writing, to the other party and said notification attached to originals of this Contract. V. CONTRACT MODIFICATIONS Modifications to provisions of this Contract shall only be valid when they have been rendered, in writing, and duly signed by both parties. The parties agree to renegotiate this Contract if stated revisions of any applicable laws, regulations, or increases/decreases in allocations make changes to this Contract necessary. VI. TERMINATION/CANCELLATION Termination at Will This Contract may be terminated by either party upon no less than 30 calendar days notice, without cause, unless a lesser time is mutually agreed upon by both parties. Said notice shall be delivered by certified mail (return receipt requested), by other method of delivery whereby an original signature is obtained, or in-person with proof of delivery. In the event of termination, the Department will be paid for all costs incurred and hours worked up to the time of termination. The Department shall reimburse the Agency any advance payments, prorated as of last day worked. VII. CONDITIONS A. Records The Agency agrees to allow the Department and the public access to any documents, papers, letters, or other materials subject to the provisions of Chapter 119 and Section 945.10, F.S., made or received by the Agency in conjunction with this Contract. The Agency's refusal to comply with this provision shall constitute sufficient cause for termination of this Contract. Page 7 of 13 Master Document Revised 08/04/17 CONTRACT # W1140 B. Annual Appropriation The Department's performance under this Contract is contingent upon an annual appropriation by the legislature. It is also contingent upon receipt of payments as outlined in Addendum A and in Section III., COMPENSATION. C. Disputes Any dispute concerning performance of the Contract shall be resolved informally by the Department's Contract Manager. Any dispute that cannot be resolved informally shall be reduced to writing and delivered to the Department's Assistant Deputy Secretary of Institutions. The Department's Assistant Deputy Secretary of Institutions, shall decide the dispute, reduce the decision to writing, and deliver a copy to the Agency, the Department's Contract Administrator, and the Department's Contract Manager. D. Force Maieure Neither party shall be liable for loss or damage suffered as a result of any delay or failure in performance under this Contract or interruption of performance resulting directly or indirectly from acts of God, fire, explosions, earthquakes, floods, water, wind, lightning, civil or military authority, acts of public enemy, war, riots, civil disturbances, insurrections, strikes, or labor disputes. E. Severabilitv The invalidity or unenforceability of any particular provision of this Contract shall not affect the other provisions hereof and this Contract shall be construed in all respects as if such invalid or unenforceable provision was omitted. F. Verbal Instructions No negotiations, decisions, or actions shall be initiated or executed by the Agency as a result of any discussions with any Depaitment employee. Only those communications which are in writing from the Depaitinent's administrative or project staff identified in Section IV., CONTRACT MANAGEMENT, of this Contract shall be considered as a duly authorized expression on behalf of the Department. Only communications from the Agency that are signed and, in writing, will be recognized by the Department as duly authorized expressions on behalf of the Agency. G. No Third -Party Beneficiaries Except as otherwise expressly provided herein, neither this Contract, nor any amendment, addendum or exhibit attached hereto, nor term, provision or clause contained therein, shall be construed as being for the benefit of, or providing a benefit to, any party not a signatory hereto. H. Prison Rape Elimination Act (PREM The Agency shall report any violations of the Prison Rape Elimination Act (PREA), Federal Rule 28 C.F.R. Part 115, to the Department's Contract Manager, or designee. Cooperation with Inspector General In accordance with Section 20.055(5), F.S., the Agency understands and will comply with its duty to cooperate with the Inspector General in any investigation, audit, inspection, review, or hearing. Page 8of13 Master Document Revised 08/04/17 CONTRACT # W1140 J. Sovereign Immunity The Agency and the Department are state agencies or political subdivisions as defined in Section 768.28, F.S., and agree to be fully responsible for acts and omissions of their own agents or employees to the extent permitted by law. Nothing herein is intended to serve as a waiver of sovereign immunity by either party to which sovereign immunity may be applicable. Further, nothing herein shall be construed as consent by a state agency or political subdivision of the State of Florida to be sued by third parties in any matter arising out of this Contract. K. Americans with Disabilities Act The Agency shall comply with the Americans with Disabilities Act. In the event of the Agency's noncompliance with the nondiscrimination clauses, the Americans with Disabilities Act, or with any other such rules, regulations, or orders, this Contract may be canceled, terminated, or suspended in whole or in part and the Agency may be declared ineligible for further Contracts. REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK Page 9 of 13 Master Document Revised 08/04/17 CONTRACT #W1140 AMENDMENT #1 All other terms and conditions of the original Contract remain in full force and effect. This Amendment shall begin on the last date of signature by all parties. IN WITNESS THEREOF, the parties hereto have caused this Amendment to be executed by their undersigned officials as duly authorized. AGENCY: CITY OF CAPE CANAVERAL SIGNED BY: NAME: TITLE: DATE: FEIN: 59-0974636 FLORIDA DEPARTMENT OF CORRECTIONS Approved as to form and legality, subject to execution. SIGNED SIGNED BY: BY: NAME: Kasey B. Faulk NAME: Kenneth S. Steely TITLE: Chief, Bureau of Procurement TITLE: General Counsel DATE: DATE: Page 2 of 5 Revised Addendum A Inmate Work Squad Detail of Costs for City of Cape Canaveral Interagency Contract Number W1140, Amendment #1 Effective October 1, 2019 ***ENTER MULTIPLIERS IN SHADED BOXES ONLY IF TO BE INVOICED TO AGENCY*** IPer Officer I I Total I Annual Cost I Annual Cost I. CORRECTIONAL WORK SQUAD OFFICER SALARIES AND POSITION RELATED-EXPENSES TO BE REIMBURSED BY THE AGENCY: Officers Salary #Officer; Multiplier 1 $ 54,194.00 ** $ 54,194.00 Salary Incentive Payment $ 1,128.00 $ 1,128.00 Repair and Maintenance $ 121.00 $ 121.00 State Personnel Assessment $ 354.00 $ 354.00 Training/Criminal Justice Standards $ 200.00 $ 200.00 Uniform Purchase $ 400.00 $ 400.00 Uniform Maintenance $ 350.00 $ 350.00 Training/Criminal Justice Standards * N/A TOTAL-To Be Billed By Contract To Agency $ 56,747.00 $ 56,747.00 *Cost limited to first year of contract as this is not a recurring personnel/position cost. **Annual cost does not include overtime pay. IA. The Overtime Hourly Rate of Compensation for this Contract is$31.85, if applicable. (The Overtime Hourly Rate of Compensation shall include the average hourly rate of pay for a Correctional Officer and the average benefit package provided by the department, represented as time and one half for purposes of this Contract.) I Number I I Total I Squads Annual Cost II. ADMINISTRATIVE COSTS TO BE REIMBURSED BY THE AGENCY: Costs include but may not be limited to the following: Rain coats, staff high visibility safety vest, inmate high visibility safety vest, fire extinguisher, first aid kit, personal protection kit, flex cuffs, warning signs, handcuffs, Igloo coolers, portable toilets, insect repellants, masks, vaccinations, and other administrative expenses. 1 $ 750.00 TOTAL-To Be Billed By Contract To Agency $ 750.00 111. ADDITIONAL AGENCY EXPENSES: Tools, equipment, materials and supplies not listed in Section II above are to be provided by the Agency. CELLULAR PHONE WITH SERVICE REQUIRED: YES I XI NO ❑ ENCLOSED TRAILER REQUIRED: YES ❑ NO n Addendum A Revised 06-02-03/01-12-04 Page 3 of 5 Revised Addendum A Inmate Work Squad Detail of Costs for City of Cape Canaveral Interagency Contract Number W1140, Amendment #1 Effective October 1, 2019 Per Unit I I Number I I Total I I Bill To I Provided Already IV. OPERATING CAPITAL TO BE ADVANCED BY AGENCY: Cost of Units Cost Agency By Agency Exists Hand Held Radio MACOM $4969.00 Vehicle Mounted Radio MACOM $5400.00 ❑ $ - ❑ ❑ ❑ TOTAL Operating Capital To Be Advanced By Agency $ - Total V. TOTAL COSTS TO BE ADVANCED BY AGENCY: Cost 1. Operating Capital -from Section IV. $0.00 2. Grand Total -To Be Advanced By Agency At Contract Signing: $0.00 VI. TOTAL COSTS TO BE BILLED TO AGENCY BY CONTRACT: I Total I Cost 1. Correctional Officer Salaries and Position-Related Expenses-from Section I. $56,747.00 2. Other Related Expenses and Security Supplies-from Section II. $750.00 3. Grand Total -To Be Billed To Agency By Contract: $57,497.00 VII. TOTAL OF ALL COSTS ASSOCIATED WITH CONTRACT: 1 $57,497.00' (Total of Sections V. and VI.) VIII. OVERTIME COSTS: If the contracting Agency requests overtime for the work squad which is approved by the Department, the contracting Agency agrees to pay such costs and will be billed separately by the Department for the cost of overtime. Addendum A Revised 06-02-03/01-12-04 Page 4 of 5 Revised Addendum A- INSTRUCTIONS Inmate Work Squad Detail of Costs for City of Cape Canaveral Interagency Contract Number W1140, Amendment #1 Effective October 1, 2019 Section I. Costs in this section are determined each fiscal year by the Budget and Management Evaluation Bureau and are fixed. By entering the number of Officers required for this contract, the spreadsheet will automatically calculate the "Total Annual Cost" column. If this Work Squad is beyond the first year of existence, enter a zero (0) in the "Total Annual Cost" column for"Training/Criminal Justice Standards"after you have entered the "#Officers Multiplier". Section 11. Safety and environmental health procedures require safety measures such as the use of safety signs, vests, and clothing. The Department's procedure for Outside Work Squads requires that all Work Squad Officers be responsible for ensuring their squad is equipped with a first aid kit and a personal protection equipment(PPE) kit. Section 11 identifies such required equipment. A new squad must be sufficiently equipped and an on-going squad must be re-supplied when needed. Type in the number of squads used for this contract and the spreadsheet will automatically calculate the fixed annual expense of$750.00 per squad and place the total in Section VI. Section 111. Check"Yes"or"No"to indicate whether a Cellular Phone with Service and/or an Enclosed Trailer is required by the Contract Manager. Section IV. The Department's procedure for Outside Work Squads requires that they have at least one (1) primary means of direct communication with the Institution's Control Room. Communication via radio and/or cellular phone is appropriate. It is preferred that a backup, secondary means of communication also be available. It is the Agency's responsibility to provide them. If the Department purchases a radio(s), the Agency must fund the purchase at the time the Contract is signed. Check the box for the type of radio and fill in the Per Unit Cost for the type of radio, Number of Units, and Total Cost columns. Leave the Total Cost column blank if a radio(s) is not being purchased at this time. Check applicable boxes ("Bill to Agency", "Provided by Agency" and "Already Exists")for each radio. NOTE: All radio communication equipment owned or purchased by the Agency that is programmed to the Department's radio frequency and used by the work squad(s), whether purchased by the Department or the Agency, shall be IMMEDIATELY deprogrammed by the Department at no cost to the Agency upon the end or termination of this Contract. Section V. The total funds the Agency must provide at the time the contract is signed will be displayed here when the form is properly filled out. Section VI. The total funds the Agency will owe contractually, and pay in equal quarterly payments, will be displayed here. Section VII. The total funds associated with the Contract, to be paid by the Agency as indicated in Sections V. and VI., will be displayed here. Section VIII. Any agreement in this area will be billed separately as charges are incurred. Addendum A Revised 06-02-03/01-12-04 Page 5 of 5 [City Seal] City of Cape Canaveral City Council Agenda Form City Council Meeting Date: 05/21/2019 Item No. 5 Subject: Ordinance No. 09-2019; amending Section 110-28 of the City Code related to Due Process and Special Local Notice Requirements for certain zoning hearings; providing for the repeal of prior inconsistent ordinances and resolutions, incorporation into the Code, severability and an effective date, second reading. Department: Community Development (CD) Summary: An integral part of the local zoning process is the opportunity for residents/property owners/interested parties to have an opportunity to provide input to local decision makers, whether that be an advisory board or the City Council. To ensure the public is afforded ample opportunity, City Code (Sec. 110-28) spells out minimum requirements for noticing public meetings. Section 110-28(b) of the City Code establishes the following local notice requirements for certain zoning actions. Specifically: In addition to any notice requirements provided by state law, all public hearings under this article shall be publicly noticed for at least 14 calendar days prior to the date of the hearing. Said notice shall include the address of the subject property, matter to be considered and the time, date and place of the hearing. The city shall post notice of public hearings in the following manner: (1) Posting the affected property. (2) Posting at city hall and on the city's official website. (3) Notifying all owners of real property (including homeowner's and condominium associations) adjacent to and within 500 feet of the subject property. All notices required by this subparagraph may be sent by regular mail except that public hearings related to applications for rezoning shall be sent by certified mail, return receipt requested. Further, unless otherwise provided by law, notices required by this subsection shall only be mailed for the first public hearing before the first board required to hear an application under this article. Subsequent hearings on the same application shall not be required to be noticed by this subsection. Applicants shall be solely responsible for the costs incurred for notification under this subparagraph. (4) Notifying, by certified mail, the owner(s) of the subject property for which the application is being made. Note these notice requirements are in addition to any required State requirements, such as display ads for Comprehensive Plan Amendments, etc. As indicated in paragraph (3) above, all notices related to rezonings are required to be sent certified mail, return receipt requested. This can add a great deal of cost to the process. In particular with large-scale requests. As an example, the City is considering a large-scale rezoning project to address over 700 non -conforming commercial properties. When the 500 -foot radius is applied, as indicated above in paragraph (3), over 5,000 properties would be included. As a result, USPS mailing cost to the public will total approximately $37,500 ($7.50 per certified/return receipt letter), negatively impacting limited public resources. City Council Meeting Date: 05/21/2019 Item No. 5 Page 2 of 3 As indicated above, compliance with current Code notice requirements can be overly burdensome and, in certain situations, place an unreasonable demand on an applicant. In response, the City Attorney has prepared the attached Ordinance to revise notice requirements for rezonings, special exceptions and variance actions. The proposed revisions include: • The creation of a notice process for City -initiated zoning actions affecting more than one noncontiguous parcel of land and more than five acres. The notice for these actions will include: o Posting the meeting notice at City Hall and on the City's official website, and o Notifying, via regular mail, the owner of the subject parcel for which the administrative application is being made by the City. • Revising the current notice procedures for all other zoning actions to include: o Post the affected property o Posting at City Hall and on the City's official website; o Notifying property owners within five -hundred feet of the subject parcel by regular mail, rather than certified mail as currently required; and o Notifying owners of the subject parcel by regular mail or email, rather than certified mail as currently required. Out of an abundance of caution and to clarify the impact of the proposed revisions, please note that for City -initiated actions, notices will be posted at City Hall and the City website and a notice will be sent to the owner of the property for which the administrative change is being made by the City. Several housekeeping items are also being addressed that will provide a degree of flexibility to the current process. Public hearings that are postponed or continued by the City will be required to be noticed for at least three days. At its April 16, 2019 regular meeting, the Council approved Ordinance No. 11-2019 by a 4-1 vote. Subsequently, Staff polled a number of Brevard County municipalities to determine best practice with respect to noticing zoning related public hearings. Other than correspondence to the applicant and/or the applicant's representative related to subdivisions, none of the seven cities polled (Cocoa, Cocoa Beach, Melbourne, Palm Bay, Rockledge, Satellite Beach and Titusville) send notices via certified mail. The Planning and Zoning Board, at its April 24, 2019 regular meeting, unanimously recommended approval of Ordinance No. 11-2019. The Board recommended that the City utilize all of its social media platforms to help disseminate information on upcoming zoning - related meetings. Currently, the City posts meeting notices on its webpage, marquee sign and display board at City Hall. Upcoming meetings are also noticed in The Weekly Update. Notice of Public Hearing was advertised in Florida Today on May 9, 2019. Submitting Department Director: David Dickey Date: 5/9/19 Attachments: Ordinance No. 09-2019 City Council Meeting Date: 05/21/2019 Item No. 5 Page 3 of 3 Financial Impact: Cost of advertising and codification; Staff time and effort to prepare this Agenda Item. Reviewed by Administrative/Financial Services Director: John DeLeo Date: 5/9/19 The City Manager recommends that City Council take the following action: Adopt Ordinance No. 09-2019, on second reading. Approved by City Manager: David L. Greene Date: 5/9/19 1 ORDINANCE NO. 09-2019 2 3 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY 4 OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA; 5 AMENDING SECTION 110-28 OF THE CITY CODE 6 RELATED TO DUE PROCESS AND SPECIAL LOCAL 7 NOTICE REQUIREMENTS FOR CERTAIN ZONING 8 HEARINGS; PROVIDING FOR THE REPEAL OF PRIOR 9 INCONSISTENT ORDINANCES AND RESOLUTIONS, 10 INCORPORATION INTO THE CODE, SEVERABILITY 11 AND AN EFFECTIVE DATE. 12 13 WHEREAS, the City is granted the authority, under Section 2(b), Article VIII, of the State 14 Constitution, to exercise any power for municipal purposes, except when expressly prohibited by 15 law; and 16 17 WHEREAS, the City Council desires to amend City special local notice requirements for 18 certain zoning hearings to streamline local notice requirements by balancing various legitimate 19 public interests and taking into consideration common sense, practical concerns such as public 20 expenses and limited resources, efficient and timely decision making by the City on land use 21 matters and unreasonableness; and 22 23 WHEREAS, the City Council of the City of Cape Canaveral, Florida, hereby finds this 24 ordinance to be in the best interests of the public health, safety and welfare of the citizens of Cape 25 Canaveral. 26 27 NOW, THEREFORE, BE IT ENACTED BY THE CITY COUNCIL OF THE CITY 28 OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, AS FOLLOWS: 29 30 Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein 31 by this reference as legislative findings and the intent and purpose of the City Council of the City 32 of Cape Canaveral. 33 34 Section 2. Code Amendment. Section 110-28 of the Code of Ordinances, City of 35 Cape Canaveral, Florida, is hereby amended as follows (underlined type indicates additions and 36 strikeout type indicates deletions): 37 38 Sec. 110-28. - Due process; special notice requirements. 39 (a) All applicants and interested parties shall be afforded minimal due process as required by 40 law, including the right to receive notice, be heard, present evidence, cross-examine witnesses, 41 and be represented by a duly authorized representative. 42 (b) In addition to any notice requirements provided by state law, all public hearings under this 43 article shall initially be publicly noticed for at least 14 calendar days prior to the date of the 44 hearing. Public hearings that are postponed or continued by the City shall be publicly noticed 45 for at least 3 calendar days unless otherwise required by the board. Said notice shall include 46 the address of the subject property, matter to be considered and the time, date and place of the 47 hearing. The city shall post notice of public hearings in the following manner: City of Cape Canaveral Ordinance No. 09-2019 Page 1 of 3 1 (1) Posting the affected property. 2 (2) Posting at city hall and on the city's official website. 3 (3) Notifying all owners of real property (including homeowner's and condominium 4 associations) approximately adjacent to and within 500 feet of the subject property. All 5 notices required by this subparagraph may be sent by regular mail e*aap that public 6 hearings related to applications for rezoning ohall be sent by certified mail, return receipt 7 requested. Further, unless otherwise provided by law, notices required by this subsection 8 shall only be mailed for the first public hearing before the first board required to hear an 9 application under this article. Subsequent hearings on the same application shall not be 10 required to be noticed by this subsection. Applicants shall be solely responsible for the 11 costs incurred for notification under this subparagraph. 12 (4) Notifying, by certified rezular mail or email, the owner(s) of the subject property for 13 which the application is being made. 14 The notice requirements set forth in subsections (1), (2), and (3) above are hereby deemed to 15 be courtesy notices. The failure to provide such courtesy notices shall not be a basis of appealing 16 any decision made under this chapter. 17 (c) When any proposed zoning district boundary change, variance, or special exception lies 18 within approximately 500 feet of the boundary of any property under another government's 19 jurisdiction, notice shall be forwarded to the governing body of the appropriate government 20 authority in order to afford such body an opportunity to appear at the hearing and express its 21 opinion on the effect of said proposed district boundary change, variance or special exception. 22 (d) Comprehensive administrative rezoninz, variance, or special exception applications 23 initiated by the City affecting more than one noncontiguous parcel of land and more than five acres 24 of land shall not be subiect to the notice requirements set forth in this section. Unless otherwise 25 required by state law, all public hearings under this subsection (d) shall initially be publicly noticed 26 for at least 14 calendar days prior to the date of the hearinz. Public hearings that are postponed or 27 continued by the City shall be publicly noticed for at least 3 calendar days unless otherwise 28 required by the board. In addition to any notice requirements provided by state law, public notice 29 of the hearinz of such applications shall include the address of the subiect property, matter to be 30 considered and the time, date and place of the hearinz and shall be posted in the following manner: 31 32 (1) Postinz at city hall and on the city's official website. 33 34 (2) Notifvin2, by regular mail, the owner(s) of the subiect parcels of land for which the 35 administrative application is being made by the City . 36 37 Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior 38 inconsistent ordinances and resolutions adopted by the City Council, or parts of prior ordinances 39 and resolutions in conflict herewith, are hereby repealed to the extent of the conflict. 40 41 Section 4. Incorporation Into Code. This Ordinance shall be incorporated into the 42 Cape Canaveral City Code and any section or paragraph, number or letter and any heading may be 43 changed or modified as necessary to effectuate the foregoing. Grammatical, typographical and 44 like errors may be corrected and additions, alterations, and omissions, not affecting the 45 construction or meaning of this Ordinance and the City Code may be freely made. 46 City of Cape Canaveral Ordinance No. 09-2019 Page 2 of 3 1 Section 5. Severability. If any section, subsection, sentence, clause, phrase, word or 2 provision of this Ordinance is for any reason held invalid or unconstitutional by any court of 3 competent jurisdiction, whether for substantive, procedural or any other reason, such portion shall 4 be deemed a separate, distinct and independent provision, and such holding shall not affect the 5 validity of the remaining portions of this Ordinance. 6 7 Section 6. Effective Date. This Ordinance shall become effective immediately upon 8 adoption by the City Council of the City of Cape Canaveral, Florida. 9 10 ADOPTED by the City Council of the City of Cape Canaveral, Florida, this 21st day of 11 May, 2019. 12 13 14 Bob Hoog, Mayor 15 16 ATTEST: For Against 17 18 Mike Brown 19 20 Mia Goforth, CMC Robert Hoog 21 City Clerk 22 Wes Morrison 23 First Reading: April 16, 2019 24 Planning & Zoning Board Rocky Randels 25 Hearing: April 24, 2019 26 Advertisement: May 09, 2019 Angela Raymond 27 Second Reading: May 21, 2019 28 29 Approved as to legal form and sufficiency 30 for the City of Cape Canaveral only by: 31 32 33 Anthony A. Garganese, City Attorney City of Cape Canaveral Ordinance No. 09-2019 Page 3 of 3 City of Cape Canaveral City Council Agenda Form City Council Meeting Date: 05/21/2019 Item No. 6 Subject: Ordinance No. 10-2019; amending the City Code regarding the payment of impact fees; providing for the repeal of prior inconsistent ordinances and resolutions, incorporation into the Code, severability and an effective date, first reading. Department: Community Development Summary: As discussed at the 2019 Strategic Planning Retreat on March 27, 2019, Staff has prepared the attached Ordinance to shift the timing of impact fee payment to the time of building permit issuance. One of the customary costs of developing/redeveloping property throughout Florida, including Cape Canaveral, is the payment of impact fees. Currently the City collects impact fees for the provision of sewer, library, general government, police and fire/rescue and parks and recreation services. The City collects transportation impact fees on behalf of Brevard County for projects within City limits. Impact fees are collected so that new development pays its equitable share of public improvements that must be constructed to serve new growth. The City currently collects impact fees when a project is completed and ready to be occupied, which is generally at the point the City issues a Certificate of Occupancy (CO). With larger projects in particular, the demands placed on the City are felt in advance of the issuance of a CO. As an example, if a large project is going to generate significant impacts to the local road network or wastewater system, the City may be put in a situation where improvements, over multiple years, are needed to accommodate the proposed project. Continuing with this example, year one (1) would include the design and engineering phase of the required improvements, while the actual construction would occur in year two (2). As indicated above, impact fees are currently not paid until the issuance of a CO. This can delay the City's ability to commence with even the design and engineering of needed infrastructure until after the opening/occupancy of a proj ect. The proposed Ordinance would shift the payment of impact fees to the building permit stage. This occurs early in the development process and would provide the City funding to timely pay for needed public improvements concurrent with infrastructure demands associated with new development. Otherwise, other City revenue sources, such as ad valorem taxes, will continue to be unduly burdened. Submitting Department Director: David Dickey Date: 5/9/19 Attachment: Ordinance No. 10-2019 Financial Impact: Staff time and effort to prepare this Agenda Item. Reviewed by Administrative/Financial Services Director: John DeLeo Date:: 5/9/19 The City Manager recommends that City Council take the following action: Approve Ordinance No. 10-2019 on first reading Approved by City Manager: David L. Greene al -YL Date: 5/9/19 1 ORDINANCE NO. 10-2019 2 3 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY 4 OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA; 5 AMENDING THE CITY CODE REGARDING THE 6 PAYMENT OF IMPACT FEES; PROVIDING FOR THE 7 REPEAL OF PRIOR INCONSISTENT ORDINANCES AND 8 RESOLUTIONS, INCORPORATION INTO THE CODE, 9 SEVERABILITY AND AN EFFECTIVE DATE. 10 11 WHEREAS, the City is granted the authority, under Section 2(b), Article VIII, of the State 12 Constitution, to exercise any power for municipal purposes, except when expressly prohibited by 13 law; and 14 15 WHEREAS, the City Council of the City of Cape Canaveral, Florida, has previously found 16 and determined it to be in the best interest of the safety, health, and welfare of the citizens of the 17 City of Cape Canaveral to establish sewer, library, general government, police, fire and rescue 18 services, and parks and recreation impact fees to require new development to pay their equitable 19 share of public improvements that must be constructed to serve new growth; and 20 21 WHEREAS, the City Council hereby finds that the City is legally justified to impose 22 impact fees on new construction pursuant to applicable law. See §163.31801, Florida Statutes; 23 See also, Volusia County v. Aberdeen at Ormond Beach, 760 So. 2d 126 (Fla. 2000); Contractors 24 and Builders Association of Pinellas County v. City of Dunedin, 329 So. 2d 314 (Fla. 1976); Wald 25 v. Metropolitan Dade County, 338 So. 2d 863 (Fla. 3d DCA 1976); Hollywood, Inc. v. Broward 26 County, 431 So. 2d 606 (Fla. 4th DCA 1983); and 27 28 WHEREAS, the City Council also finds that Section 163.3202(3), Florida Statutes, 29 encourages the use of innovative land development regulations which includes the adoption of 30 "impact fees;" and 31 32 WHEREAS, the City Council also finds that the impact fees required by this Ordinance 33 are necessary to mitigate impacts reasonably attributable to new development; and 34 35 WHEREAS, impact fees, when based on a comprehensive plan and used in conjunction 36 with a sound capital improvement plan, can be an effective tool for ensuring adequate 37 infrastructure to accommodate growth where and when it is anticipated; and 38 39 WHEREAS, the City Council also recognizes that the Florida Legislature has mandated 40 that local government plan comprehensively for future growth and that this regulatory Ordinance is 41 consistent with that mandate. See, e.g., Ch. 163, Fla. Stat.; and 42 43 WHEREAS, new land development activity generates public facility and service demands 44 within the City and it is reasonable to require new development to pay a fair share of the cost of 45 expanding new public facilities and services attributable to new development especially before the 46 increased demands are experienced by the City if possible; and 47 48 WHEREAS, currently the City collects impact fees at the time a certificate of occupancy is 49 issued for the new construction project; and City of Cape Canaveral Ordinance No.10-2019 Page 1 of 4 1 2 WHEREAS, the City Council desires to change the payment schedule for impact fees and 3 hereby finds that collecting impact fees after the new construction is ready for occupancy does not 4 generally allow the City to timely pay for public infrastructure required to accommodate the new 5 development and that payment of impact fees sooner, at the time building permits are issued, will 6 generally help the City fund such public improvements concurrently with the public infrastructure 7 demands and needs of new projects without placing an undue burden on other City revenue sources 8 such as ad valorem taxes; and 9 10 WHEREAS, it is the intent and purpose of this Ordinance that the City Code require that 11 impact fees imposed by the City shall be collected at the time building permits are issued for new 12 construction; and 13 14 WHEREAS, the City Council of the City of Cape Canaveral, Florida, hereby finds 15 this Ordinance to be in the best interests of the public health, safety and welfare of the citizens of 16 Cape Canaveral. 17 18 NOW, THEREFORE, BE IT ENACTED BY THE CITY COUNCIL OF THE CITY 19 OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, AS FOLLOWS: 20 21 Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by this 22 reference as legislative findings and the intent and purpose of the City Council of the City of Cape 23 Canaveral. 24 25 Section 2. Code Amendment. Sections 2-234 and 78-122 of the Code of Ordinances, City of 26 Cape Canaveral, Florida, are hereby amended as follows (underlined type indicates 27 additions and strikeout type indicates deletions): 28 29 Sec. 2-234. - Payment. 30 (a) The impact fees imposed by this division shall be paid in legal tender unless 31 the city council accepts an in-kind contribution of real or personal property for 32 public use which serves the same public purposes as those for which the impact 33 fees are imposed. Credit for such in-kind contribution shall be based upon the fair 34 market value of that property as of the date the city council accepts such offer of 35 dedication. The appraised value of the property shall be verified by at least one 36 competent independent opinion thereof. 37 (b) All impact fees shall be paid by certified funds at the time of issuance of a 38 building Hermit the certificate of occupancy for such new construction. 39 40 Sec. 78-122. - Payment. 41 The assessments as set forth in this division shall be paid by certified funds at 42 the time of issuance of a building hermit certificate of occupancy for such new 43 construction. Except as provided in section 78-34, a building permit shall not be 44 issued unless a sewer permit has been first obtained. The amount of the assessment 45 shall be determined in accordance with the rates established in section 78-121 in City of Cape Canaveral Ordinance No. 10-2019 Page 2 of 4 1 effect at the time a sewer permit is issued by the city. A sewer permit shall not be 2 issued until a city sewer main line is placed within 150 feet of the applicant's 3 property. If the assessment is not paid by the 30th day following that for which a 4 billing has been rendered, then an amount equal to five percent of such assessment 5 due shall be added thereto as a late charge. Upon failure of any user to pay for the 6 assessment within 60 days from being billed, the city shall shut off or cause to be 7 shut off the connection of such user and shall not furnish him or permit him to 8 receive from the system further service until all obligations owed by him to the city 9 on account of the services shall have been paid in full. If such sewer service is shut 10 off pursuant to this section, then before such service shall be restored, the user 11 thereof shall pay a reinstatement fee in the amount as set forth in Appendix B to 12 this Code in addition to any other assessments and charges due. In addition [to], 13 and as an alternative means of, collecting such assessment, late charges and 14 penalties, the city shall have a lien on such lot or parcel of land for which the sewer 15 connection has been made, for which such lien shall be of equal dignity with the 16 lien of state and county and municipal taxes. Such lien may be foreclosed by the 17 city in the same manner provided by the laws of the state for the foreclosure of 18 mortgages upon real estate. 19 20 Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior 21 inconsistent ordinances and resolutions adopted by the City Council, or parts of prior ordinances 22 and resolutions in conflict herewith, are hereby repealed to the extent of the conflict. 23 24 Section 4. Incorporation Into Code. This Ordinance shall be incorporated into the Cape 25 Canaveral City Code and any section or paragraph, number or letter and any heading may be 26 changed or modified as necessary to effectuate the foregoing. Grammatical, typographical and 27 like errors may be corrected and additions, alterations, and omissions, not affecting the 28 construction or meaning of this Ordinance and the City Code may be freely made. 29 30 Section 5. Severability. If any section, subsection, sentence, clause, phrase, word or 31 provision of this Ordinance is for any reason held invalid or unconstitutional by any court of 32 competent jurisdiction, whether for substantive, procedural or any other reason, such portion shall 33 be deemed a separate, distinct and independent provision, and such holding shall not affect the 34 validity of the remaining portions of this Ordinance. 35 36 Section 6. Effective Date. This Ordinance shall become effective immediately upon 37 adoption by the City Council of the City of Cape Canaveral, Florida. 38 39 40 41 42 [Adoption Page Follows] 43 44 45 46 City of Cape Canaveral Ordinance No. 10-2019 Page 3 of 4 1 ADOPTED by the City Council of the City of Cape Canaveral, Florida, this day of June, 2 2019. 3 4 5 6 Bob Hoog, Mayor 7 8 ATTEST: For Against 9 10 Mike Brown 11 12 Mia Goforth, CMC Robert Hoog 13 City Clerk 14 Wes Morrison 15 First Reading: May 21, 2019 16 Advertisement: Rocky Randels 17 Second Reading: 18 Angela Raymond 19 20 Approved as to legal form and sufficiency 21 for the City of Cape Canaveral only by: 22 23 24 Anthony A. Garganese, City Attorney City of Cape Canaveral Ordinance No. 10-2019 Page 4 of 4 [City Seal] City of Cape Canaveral City Council Agenda Form City Council Meeting Date: 05/21/2019 Item No. 7 Subject: Ordinance No. 11-2019; regarding Code Enforcement procedures; providing for a Special Magistrate Code Enforcement process; updating the procedures related to the Criminal Nuisance Abatement Board authorized by Section 8983.138, Florida Statutes; adopting conforming amendments; providing for the repeal of prior inconsistent ordinances and resolutions, incorporation into the Code, severability and an effective date, first reading. Department: Community Development (CD) Summary: At its August 21, 2018 Budget Workshop, City Council expressed interest in making policy revisions to augment current Code Enforcement tools, to include adoption of the most recent edition of the International Property Maintenance Code (IPMC) and the implementation of a Code Enforcement Special Magistrate (Magistrate) system. On February 19, 2019, Council - through the adoption of Ordinance No. 05-2019 - adopted the 2018 edition of the IPMC. Section 82-221(b) of the IPMC calls for the appointment or one of more Magistrates. To this end and in fulfillment of the Council's stated interest, Ordinance No. 11-2019 (Attached) has been prepared by the City Attorney. Section 162.03, Florida Statutes, expressly permits a municipality to designate Magistrates to conduct Code Enforcement proceedings and they shall have the same status as an enforcement board. In general, Magistrates shall have jurisdiction to enforce building, zoning, land development and other non -criminal local government ordinances that safeguard the health, safety and welfare of the City. Magistrates will retain wide latitude in their investigative duties to discover facts, hold hearings and draw conclusions. The Magistrate shall have the power to: • adopt administrative rules for the efficient conduct of hearings; • subpoena alleged violators and witnesses for hearings; • subpoena evidence deemed relevant to hearings; • take testimony under oath; • assess and order the payment of civil penalties; and • issue orders having the force of law. Minimum qualifications for the selected Magistrate include the following: • Member of the Florida Bar in good standing for five or more years; • Must demonstrate satisfactory knowledge of municipal law and the general procedures for enforcement of municipal codes; • Not be a City employee or officer; and • Must demonstrate a temperament suitable for the exercise of quasi-judicial powers. The Ordinance abolishes the current Code Enforcement Board (Board) (Section 4 of the Ordinance). However, the Ordinance maintains a provision for code enforcement boards, if the City Council decides someday to reestablish the board by subsequent resolution (see Article VI, Division 2). Any reference to only a Magistrate or Board in the Code shall be used interchangeably. Cases that are currently being processed by Code Enforcement Staff/Board will be transitioned to the Magistrate as appropriate (Section 5 of the Ordinance). City Council Meeting Date: 05/21/2019 Item No. 7 Page 2 of 2 Upon request of a Code Enforcement Officer, the Magistrate may conduct a meeting to hear cases on the agenda for that day. All hearings are open to the public and the City will provide clerical personnel as is required. Cases will be presented by a Code Enforcement Officer. All testimony will be given under oath and shall be recorded. The burden of proof shall be upon the City to show, by a preponderance of evidence, that a violation exists. The Magistrate shall take testimony from the Code Enforcement Officer, alleged violator and any relevant witnesses. Formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern these hearings. At the conclusion of the hearing, the Magistrate shall issue findings of fact, based on the evidence and conclusions of law, and shall issue an order. The order shall be announced orally at the hearing and shall be reduced to writing and mailed to the alleged violator. The order may be recorded in the public records. An aggrieved party may appeal a final order of the Magistrate within 30 days. All appeals shall be filed to the circuit court. A request for satisfaction, release or reduction of a Code Enforcement lien shall be considered by the City Council. To improve the existing Code Enforcement section of Code and to avoid redundancy by repeating the same provisions in the Code Enforcement Board and Special Magistrate Divisions, the ordinance adopts several key general definitions applicable in Divisions 2, 4 and 5 and general procedures and requirements that are applicable to both a Magistrate or Code Enforcement Board (see Article VI, Division 1). Additionally, the Ordinance updates the Criminal Nuisance Abatement Board provisions to fully incorporate statutory changes which broaden the Board's authority regarding violations of Chapter 499, Florida Statutes, and Pain Management Clinic violations (see Article VI, Division 6). This is a useful and specialized Code Enforcement tool. Please note, once the City implements a Special Magistrate system, a separate Criminal Nuisance Abatement Board will need to be established by Council (if there are new cases) as Florida law requires a local board to handle these cases, and does not expressly authorize a Special Magistrate to handle them. A number of conforming amendments are included in the Ordinance to provide for internal consistency within City Code and to reference the alternate Special Magistrate system of enforcing Code. To expedite the implementation of a Magistrate, the City Attorney has prepared a Request for Proposals (RFP) with the intention of coordinating the RFP response date and appointment of a Special Magistrate on or about the time the Ordinance is adopted. Submitting Department Director: David Dickey Date: 5/13/19 Attachment: Ordinance No. 11-2019 Financial Impact: Staff time and effort to prepare this Agenda Item. Reviewed by Administrative/Financial Services Director: John DeLeo Date: 5/12/19 The City Manager recommends that City Council take the following action: Approve Ordinance No. 11-2019, on first reading. C Approved by City Manager: David L. Greene Date: 5/13/19 1 ORDINANCE NO. 11-2019 2 3 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY 4 OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA; 5 REGARDING CODE ENFORCEMENT PROCEDURES; 6 PROVIDING FOR A SPECIAL MAGISTRATE CODE 7 ENFORCEMENT PROCESS; UPDATING THE 8 PROCEDURES RELATED TO THE CRIMINAL NUISANCE 9 ABATEMENT BOARD AUTHORIZED BY SECTION 10 893.138, FLORIDA STATUTES; ADOPTING CONFORMING 11 AMENDMENTS; PROVIDING FOR THE REPEAL OF 12 PRIOR INCONSISTENT ORDINANCES AND 13 RESOLUTIONS, INCORPORATION INTO THE CODE, 14 SEVERABILITY AND AN EFFECTIVE DATE. 15 16 WHEREAS, the City is granted the authority, under Section 2(b), Article VIII, of the State 17 Constitution, to exercise any power for municipal purposes, except when expressly prohibited by 18 law; and 19 20 WHEREAS, Chapter 162, Florida Statutes (the "Local Government Code Enforcement 21 Boards Act") authorizes municipalities to adopt and utilize several alternate code enforcement 22 systems; and 23 24 WHEREAS, Section 162.03, Florida Statutes expressly permits a municipality, at its 25 option, to create or abolish by ordinance local government code enforcement boards; and 26 27 WHEREAS, Section 162.03 additionally expressly authorizes a municipality to designate 28 special magistrate to conduct code enforcement proceedings and expressly states that a special 29 magistrate shall have the same status as an enforcement board and references in Chapter 162, 30 Florida Statutes to an enforcement board shall include, except in Section 162.05, a special 31 magistrate if the context permits; and 32 33 WHEREAS, in furtherance of the authority granted the City Council pursuant to Chapter 34 162, Florida Statutes, the City Council hereby finds that it is in the best interests of the citizens of 35 Cape Canaveral to adopt an alternate special magistrate code enforcement system and to bestow 36 upon one or more appointed special magistrates jurisdiction to adjudicate any code violations 37 requested by City Code Enforcement Officers under said system or as expressly required by the 38 City Code; and 39 40 NOW, THEREFORE, BE IT ENACTED BY THE CITY COUNCIL OF THE CITY 41 OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, AS FOLLOWS: 42 43 Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by this 44 reference as legislative findings and the intent and purpose of the City Council of the City of Cape 45 Canaveral. 46 47 Section 2. Code Amendment. Chapter 2, Article VI. — Code Enforcement of the Code of City of Cape Canaveral Ordinance No. 11-2019 Page 1 of 33 1 Ordinances, City of Cape Canaveral, Florida, is hereby amended as follows (underlined type 2 indicates additions and strikeout type indicates deletions): 3 4 5 ARTICLE VI. - CODE ENFORCEMENT 6 DIVISION 1. - GENERALLY 7 Sec. 2-246. - Authorization to enter upon nronerty. 8 A code enforcement officer charged with the duty to enforce this article shall have the richt 9 to enter upon private real property in accordance with applicable federal and state law. If entry 10 upon private real property is denied, the city manager is hereby authorized to direct the city 11 attorney to obtain an inspection warrant from a court of competent jurisdiction for purposes of 12 authorizing a code enforcement officer to inspect the private real property and personal property 13 thereon. 14 Sec. 2-247 Definitions. 15 The following words, terms and phrases, when used in this article, shall have the meanings 16 ascribed to them in this section, except where the context clearly indicates a different meaning or 17 applicable state law provides a conflicting meaning: 18 -- - - - 19 Code or City Code means collectively the City of Cape Canaveral Code of Ordinances and any 20 statute, code, rule, ordinance or regulation incorporated into the Code by reference. 21 22 Code Enforcement Officer means any authorized anent or employee of the city who has been 23 designated by the city manager to enforce the city's Code and ordinances. 24 25 Code Enforcement Board means a board created by the city council by resolution pursuant to 26 section 2-256. 27 28 Repeat Violation means a violation of a provision of the Code by a person who has been previously 29 found through a code enforcement board or a special magistrate, to have violated or has admitted 30 violating the same provision of the Code within five (5) years prior to the violation, 31 notwithstanding the violations occur at different locations. A repeat violation can occur only after 32 correction of the previous violation has been made. 33 34 Special Mazistrate means an individual designated and determined to be qualified by the city 35 council or city manager pursuant to Section 2-261 of this article. 36 37 Uncorrectable Violation means a violation which is irreparable or irreversible in nature and which 38 cannot be remedied after the violation has been committed because the violation constitutes a 39 single prohibited act rather than an onaoina condition or circumstance. 40 41 Violator means that person or entity responsible for a violation of the Code (the property owner, 42 tenant, or business entity on the premises, or any combination thereof) and may include the 43 property owner on whose property the violation occurs regardless of who commits the violation. A City of Cape Canaveral Ordinance No. 11-2019 Page 2 of 33 1 violator may include, but is not limited to, any person, individual, trustee, associations, joint 2 ventures, partnerships, corporations, trusts, sole proprietorships, and any and all other groups or 3 combinations and legal entities. 4 5 Violation shall mean the act of breaking, infringing or transgressing any provision of the City 6 Code, its ordinances or other law by a person, pursuant to this article. 7 8 Sec. 2-248. Provisions are supplemental; Conflicts with state law. 9 10 (al Nothing contained in this article shall prohibit the city from enforcing its Code by any 11 lawful means including, but not limited to, a summons, an arrest, a notice to appear, civil action 12 for injunctive relief, a stop work order or demolition. The enforcement procedures outlined in 13 this article are additional and cumulative to all others and shall not be deemed to be prerequisites 14 to filing suit for the enforcement of any section of this Code. 15 16 (bl If any provision of this article conflicts with the provisions of Chapter 162, Florida Statutes, 17 or other applicable state or federal law, the conflicting provision in Chapter 162, Florida Statutes, 18 or other applicable state or federal law shall apply if the state or federal law preempts the 19 conflicting provision of this article. 20 21 Sec. 2-249. Code references to special magistrate or code enforcement board. 22 Wherever there is a reference to only the special magistrate or code enforcement board in the 23 City Code other than contained in this article, the reference to the term special magistrate shall be 24 interchangeable with the term code enforcement board and vice versa to the extent necessary to 25 conduct the hearing requested by the code enforcement officer. It is the intent and purpose of this 26 article and section that code enforcement cases may be brought by code enforcement officers using 27 alternate code enforcement systems authorized by the city council including before a special 28 magistrate or code enforcement board. 29 Sec. 2-250. Duties of code enforcement officers - Generally. 30 Code enforcement officers shall have the duties, responsibilities and powers related to code 31 enforcement as set forth in Chapter 162, Florida Statutes and the City Code including as set forth 32 in this article. 33 Sec. 2-251. - Prosecution of violations with no criminal penalty. 34 Any violation of the City Code which the city elects to prosecute before the code 35 enforcement board or special magistrate shall have no criminal penalty as to said violation. 36 However, this Section shall not be construed to abrogate or repeal any provision of the City Code 37 or applicable state or federal law that expressly imposes a criminal penalty as to said violation and 38 said violation is prosecuted as a criminal infraction in accordance with law. 39 40 Sec. 2-252. Special magistrate and code enforcement board administrative fines; costs of 41 repairs; and filing of liens. City of Cape Canaveral Ordinance No. 11-2019 Page 3 of 33 1 2 Laj The special magistrate or code enforcement board, upon notification by the code 3 enforcement officer that an order of the special magistrate or code enforcement board 4 has not been complied with by the set time or, upon finding that a repeat violation has 5 been committed, shall conduct a "Massey" compliance hearing after notice of the 6 hearing is provided to the violator by the code enforcement officer. At the compliance 7 hearing, the violator will be afforded an opportunity to be heard on the issue of whether 8 the violator is in compliance with the special magistrate or code enforcement board 9 order, and upon a determination of non-compliance, the special magistrate or code 10 enforcement board shall order the violator to pay a fine in an amount specified in this 11 section for each day the violation continues past the date set by the order for 12 compliance. In addition, if, pursuant to a finding by the special magistrate or code 13 enforcement board, the condition causing the violation presents a serious threat to the 14 public health, safety, and welfare, the city may, at its discretion, make all reasonable 15 repairs that are required to brim the property into compliance and charge against the 16 violator the cost of the repairs along with the fine imposed pursuant to this section. An 17 accounting of the cost of repairs will be presented to the special magistrate or code 18 enforcement board for consideration in such cases. Making such repairs does not 19 create a continuing obligation on the part of the local aovernina body to make further 20 repairs or to maintain the property and does not create any liability against the city for 21 any damages to the property if such repairs were completed in good faith. 22 2310j A fine imposed pursuant to this section shall not exceed $250 per day for a first 24 violation, and, shall not exceed $500 per day for a repeat violation, and, in addition, 25 may include all costs of repairs pursuant to subsection (a). The fine for an uncorrectable 26 violation shall not exceed $5,000 per violation. 27 28 LEI In determining the amount of the fine, if any, the special magistrate or code 29 enforcement board shall consider the following factors: 30 31 (1) The Gravity of the violation: 32 33 (2) Any actions taken by the violator to correct the violation: and 34 35 (3) Any previous violations committed by the violator. 36 37 A special magistrate or code enforcement board may reduce a fine imposed pursuant 38 to this section before an order imposing a fine is recorded as a lien in the public records. 39 After the lien is recorded, the lien shall run in favor of the city council. 40 41 Lej A certified copy of an order imposing a fine may be recorded in the public records of 42 the county and thereafter shall constitute a lien against the land on which the violation 43 exists and upon any other real or personal property owned by the violator. Upon petition 44 to the circuit court, the order may be enforced in the same manner as a court iudgment 45 by the sheriffs of this state, including levy against the personal property, but such order 46 shall not be deemed to be a court iudament except for enforcement purposes. A fine 47 imposed pursuant to this section shall continue to accrue until the violator comes into City of Cape Canaveral Ordinance No. 11-2019 Page 4 of 33 1 compliance or until iudament is rendered pursuant to this section, whichever occurs 2 first. A lien arising from a fine imposed pursuant to this section runs in favor of the city 3 council and the city manager may execute a satisfaction or release of lien entered 4 pursuant to this section in accordance with the authority granted to the city manager 5 under section 2-260. 6 7 After three months from the filing of any such lien which remains unpaid, the special 8 magistrate or code enforcement board may authorize the city attorney to foreclose on 9 the lien or to sue to recover a money iudament for the amount of the lien plus any 10 accrued interest. No lien created pursuant to the provisions of this Section may be 11 foreclosed on real property which is a homestead under Section 4, Article X of the State 12 Constitution. The money iudament provisions of this Section shall not apply to real 13 _property or personal property which is covered under Section 4(0. Article X of the 14 State Constitution. 15 16 Sec. 2-253. Service of Notice for special magistrate and code enforcement board 17 proceedings. 18 19 01 All notices required in this article related to special magistrate or code enforcement 20 board proceedings shall be provided to the alleged violator by certified mail, return 21 receipt requested: by hand delivery by the sheriff or law enforcement officer of the city, 22 code enforcement officer, or other person designated by the city council: or by leaving 23 the notice at the violator's usual place of residence with any person residing therein 24 who is above 15 years of age and informing such person of the contents of the notice. 25 In the case of commercial premises, leaving the notice with the manager or other person 26 in charge. 27 28 02) In addition to providing notice as set forth in subsection (al, at the option of the special 29 magistrate or code enforcement board, notice may also be served by publication or 30 posting as follows: 31 32 Such notice shall be published once during each week for four consecutive 33 weeks, with four publications being sufficient, in a newspaper of general 34 circulation in the city. The newspaper shall meet such reauirements as are 35 prescribed under Chapter 50, Florida Statutes, for legal and official 36 advertisements. 37 38 Proof of publication shall be made as provided in ,S. 50.041 and 50.051, Florida 39 Statutes. 40 41 0) In lieu of publication as described in subsection (11 above, such notice may be 42 posted for at least ten days in at least two locations, one of which shall be the 43 property upon which the violation is alleged to exist and the other of which shall 44 be at city hall. Proof of posting shall be by affidavit of the person posting the 45 notice. which affidavit shall include a copy of the notice posted and the date 46 and places of its posting. City of Cape Canaveral Ordinance No. 11-2019 Page 5 of 33 1 2 f4j Notice by publication or posting may run concurrently with, or may follow, an 3 attempt to provide notice by hand delivery or by mail as required under 4 Subsection (a). 5 6 f,E1 Evidence that an attempt has been made to hand deliver or mail notice as provided in 7 Subsection (a) together with proof of publication or posting as provided in subsection 8 (b) shall be sufficient to show that the notice requirement, of this part has been met, 9 without regard to whether or not the alleued violator actually received the notice. 10 11 Sec. 2-254. Enforcement procedures. 12 13 (a) Code enforcement officers shall have the authority to initiate code enforcement 14 proceedings as provided in this article. Special magistrates and code enforcement boards 15 shall not have such authority . 16 17 (b) Except as provided herein, a code enforcement officer who finds a violation of the Code 18 shall issue a notice to the violator statim that the violator has committed a violation of the 19 Code. The notice shall specify a reasonable time period within which the violator must 20 correct the violation. This determination shall be based on considerations of fairness: 21 practicability: ease of correction: ability to correct: severity of violation: nature, extent and 22 probability of dancer or damaze to the public: and other relevant factors relating to the 23 reasonableness of the time period prescribed. 24 25 (c) If, upon personal investigation, a code enforcement officer finds that the violator has not 26 corrected the violation within the time period specified in the notice, the code enforcement 27 officer shall notify the special mazistrate or code enforcement board and request a hearing. 28 If the violation is corrected and then recurs or if the violation is not corrected by the time 29 specified for correction by the code enforcement officer, the case may be presented to the 30 special magistrate or code enforcement board even if the violation has been corrected prior 31 to the hearing, and the notice shall so state. 32 33 (d) If a repeat violation is found, the code enforcement officer shall issue a notice to the 34 violator but is not required to Give the violator a reasonable time to correct the violation. 35 The code enforcement officer, upon notifvina the violator of a repeat violation, shall notify 36 the special magistrate or code enforcement board and request a hearing. The case may be 37 presented to the special magistrate or code enforcement board even if the repeat violation 38 has been corrected prior to the hearing, and the notice shall so state. If the repeat violation 39 has been corrected, the special magistrate or code enforcement board retains the richt to 40 schedule a hearing to determine costs and impose the payment of reasonable enforcement 41 fees upon the repeat violator. 42 43 (e) If a code enforcement officer has reason to believe a violation or the condition causing the 44 violation presents a serious threat to the public health, safety and welfare, or if the violation 45 is an uncorrectable violation, the code enforcement officer shall make a reasonable effort 46 to notify the violator and may immediately request a hearing. 47 City of Cape Canaveral Ordinance No. 11-2019 Page 6 of 33 1fes' If the owner of property that is subiect to an enforcement proceeding before the special 2 magistrate or code enforcement board transfers ownership of such property between the 3 time the initial pleading was served and the time of the hearing, such owner shall: 4 5 (1) Disclose, in writing, the existence and the nature of the proceeding to the prospective 6 transferee. 7 8 a) Deliver to the prospective transferee a copy of the pleadings, notices, and other 9 materials relating to the code enforcement proceeding received by the transferor. 10 11 (3) Disclose, in writing, to the prospective transferee that the new owner will be 12 responsible for compliance with the applicable Code provision and with orders issued 13 in the code enforcement proceeding. 14 15 (4) File a notice with the special magistrate or code enforcement board of the transfer of 16 the property, with the identity and address of the new owner and copies of the 17 disclosures made to the new owner, within 5 days after the date of the transfer. 18 A failure to make the disclosures described in subsections (1), (2) and (3) before the transfer 19 creates a rebuttable presumption of fraud. If the property is transferred before the hearing, 20 the proceeding shall not be dismissed, but the new owner shall be provided a reasonable 21 period of time to correct the violation before the hearing is held. 22 (g) Nothing herein shall prohibit a violator from waiving his or her rights to the hearing 23 required by this section and entering into a pre -hearing code enforcement settlement 24 agreement, which must be memorialized in writing and executed by the violator and city 25 manager. Such agreements may include terms and conditions to bring the violation into 26 compliance, impose and require payment of an agreed upon penalty and reimbursement of 27 costs incurred by the city related to the violation, and other terms and conditions deemed 28 necessary to settle the violation. 29 Sec. 2-255. Scheduline and conduct of hearine. 30 31 Laj Upon request of the code enforcement officer, or at such other times as may be necessary, 32 a special magistrate or code enforcement board may call a hearing. Minutes shall be kept 33 of all hearings by each special magistrate or code enforcement board, and all hearings and 34 proceedings shall be open to the public. The city manager shall provide clerical and 35 administrative personnel as may be reasonably required by each special magistrate or code 36 enforcement board for the proper performance of his or her duties. The city manager shall 37 designate a city staff person to serve as clerk to the special magistrates or code 38 enforcement board. 39 40 c13,1 The clerk or their designee shall send a notice of hearinw in the same manner of service as 41 outlined in Section 2-264. 42 43 (c) The clerk or their designee shall call hearings on a monthly basis or upon the request of the 44 special magistrate or code enforcement board. Except as provided herein, a hearing date City of Cape Canaveral Ordinance No. 11-2019 Page 7 of 33 1 shall not be postponed or continued unless a request for a continuance, showing good cause 2 for a continuance, is received in writing by the special magistrate or code enforcement 3 board at least ten (10) calendar days prior to the date set for hearing. 4 5 (d) A special magistrate or code enforcement board shall postpone a hearing if the named 6 violator, prior to the scheduled hearing date, files with the duly authorized city board or 7 official of appropriate jurisdiction, if any, an administrative appeal concerning the 8 interpretation or application of the Code provisions upon which the alleged violation was 9 based. However, once an issue has been determined by a special magistrate or code 10 enforcement board in a specific case, that issue may not be further reviewed by a city board 11 or official in that specific case. 12 13 Lej Each case before a special magistrate or code enforcement board shall be presented by a 14 code enforcement officer or by a duly authorized representative of the city. If the city 15 prevails in nrosecutina a case before the special magistrate or code enforcement board, it 16 shall be entitled to recover all costs incurred in nrosecutina the case before the special 17 magistrate or code enforcement board and such costs may be included in the lien authorized 18 under Section 2-266. 19 20fes' A special magistrate or code enforcement board shall proceed to hear the cases on the 21 agenda for that day. All testimony shall be under oath and shall be recorded. At the hearing, 22 the burden of proof shall be upon the City to show, by a preponderance of the evidence, 23 that a violation does exist. The special magistrate or code enforcement board shall take 24 testimony from the code enforcement officer and alleged violator, as well as any relevant 25 witnesses. Relevant written evidence and documentation may also be submitted into the 26 record. Irrelevant, immaterial or unduly repetitious evidence shall be excluded, but all 27 other evidence of a type commonly relied upon by reasonably prudent persons in the 28 conduct of their affairs shall be admissible, whether or not such evidence would be 29 admissible in a trial in the courts of the State of Florida. Formal rules of evidence shall not 30 apply, but fundamental due process shall be observed and shall govern the proceedinms. 31 The special magistrate or code enforcement board may exercise reasonable discretion in 32 manazina the hearing agenda and may continue or reschedule cases to the extent 33 reasonably necessary to afford due process, address continuances for good cause shown, 34 or effectively manage the case load. 35 36 At the conclusion of the hearing, the special magistrate or code enforcement board shall 37 issue findings of fact, based on evidence of record and conclusions of law, and shall issue 38 an order affording the proper relief consistent with powers Granted herein and in Chapter 39 162, Part I, Florida Statutes. The order shall be announced orally at the hearing and shall 40 be reduced to writing and mailed by regular U.S. mail to the alleged violator. The order 41 may include a notice that it must be complied with by a specified date and that a fine may 42 be imposed and, under the conditions specified in Section 2-266 the cost of repairs may be 43 included along with the fine if the order is not complied with by said date. A certified copy 44 of such order may be recorded in the public records of the county and shall constitute notice 45 to any subsequent purchasers, successors in interest, or assigns if the violation concerns 46 real property, and the findings therein shall be binding upon the violator and, if the violation 47 concerns real property, any subsequent purchasers, successors in interest, or assigns. If an City of Cape Canaveral Ordinance No. 11-2019 Page 8 of 33 1 order is entered bv the special magistrate or code enforcement board pursuant to this 2 subsection and the order is complied with by the date specified in the order, the special 3 magistrate or code enforcement board shall issue an order acknowledaina compliance and 4 if the original order was recorded in the public records, the order acknowledaina 5 compliance shall likewise be recorded in the public records. A hearing is not required to 6 issue such an order acknowledaina compliance with the original order. 7 8 Sec. 2-255.1 Appeal of Special Magistrate or Code Enforcement Board order. 9 10 An aaarieved party, including the city, may appeal a final order of a special magistrate or 11 code enforcement board to the circuit court. Such an anneal shall not be a hearing de novo, but 12 shall be limited to appellate review of the record created before the special magistrate or code 13 enforcement board. An anneal shall be filed within 30 calendar days of the issuance of the order 14 sought to be overturned. Failure to make such anneal within the prescribed 30-dav period shall 15 render the findings of the special magistrate or code enforcement board conclusive, binding and 16 final. 17 18 Sec. 2-255.2 Additional enforcement powers. 19 20 In addition to the Dowers and authority Given to the special magistrate or code enforcement 21 board for the city pursuant to this division, the city may, in its discretion, exercise any powers 22 given to municipalities or their special magistrate or code enforcement board bv Chapter 162, 23 Florida Statutes, as amended. 24 25 DIVISION 2. - CODE ENFORCEMENT BOARD 26 Sec. 2-256. - Created. 27 A code enforcement board is hereby may be established bv the city council, upon adoption of 28 a resolution, pursuant to the authority granted by Chapter 162, Florida Statutes F.S. ch. 162, or any 29 successx atatuta. If a code enforcement board is established bv the city council, the provisions of 30 this division shall apply. 31 Sec. 2-257. - Membership. 32 The city council shall appoint members of the code enforcement board in accordance with the 33 terms of Chanter 162, Florida Statutes F.S. § 162.05, or any succcssx zttatuo. 34 Sec. 2-258. — Code board proceedings; Duties, responsibilities and powers. 35 The code enforcement board shall have duties, responsibilities and powers as set forth, and 36 shall be governed in all respects, by the provisions of Chanter 162, Florida Statutes and division 1 37 of this article by F.S. ch. 162, or any successor atatuts, and shall have the power to hear appeals as 38 otherwise set forth in the Ceity Code of Ordinances. 39 Sec. 2-259. Administrative Rules. 40 The code enforcement board may adopt administrative rules for the efficient conduct of 41 hearings consistent with the city code and other applicable law. Said rules shall be in a form City of Cape Canaveral Ordinance No. 11-2019 Page 9 of 33 1 annroved by the city attorney. Any violation of the city Code of Ordinances which the city elects 2 to prosecute before the code enforcemo;.t board ohall have no xilx‘mal penalty as to said violation. 3 DIVISION 3. — CODE LIEN SATISFACTIONS 4 Sec. 2-260. - Application for satisfaction, release, or reduction, of code enforcement liens. 5 (a) Where a certified copy of an order imposing a penalty or fine, as described in F.S. ch. 162, 6 has been recorded in the public records of Brevard County, Florida, and has become a lien 7 against the land and/or property of the violator, such violator, or the violator's successors 8 and assigns who has an ownership interest in the property, (collectively, the "applicant") 9 may apply for a satisfaction, release, or reduction of such lien as follows: 10 (1) Lien satisfaction. Upon full payment by the applicant of the fine or penalty imposed in 11 accordance with this division, the city manager is hereby authorized to execute and record 12 in the public records of Brevard County, Florida, a satisfaction of lien on behalf of the City. 13 The applicant shall be responsible for paying all costs of recording. Lien satisfaction 14 requests do not require a full application required by subsection (b) of this section because 15 the applicant is paying the full amount of the fine or penalty due the City. 16 (2) Lien release or reduction. Upon request for a release or reduction of a fine or penalty 17 imposed in accordance with this division, the applicant shall submit a written application to 18 the city manager or designee, in accordance with this section. 19 (b) Application. The application for release or reduction of lien shall be in written form, typed 20 or handwritten, by the applicant and shall be submitted to the city manager, or designee. 21 The application shall be executed under oath and sworn to in the presence of a notary public, 22 and shall include, but may not be limited to, the following: 23 (1) A copy of the order imposing a lien upon the property including the code enforcement case 24 number; 25 (2) The date upon which the applicant brought the subject property into compliance with the 26 City Code; 27 (3) The basis upon which the applicant believes the application for release or reduction of lien 28 should be granted; 29 (4) The terms upon which the release or reduction of lien should be granted; 30 (5) The reasons, if any, compliance was not obtained prior to the order of penalty or fine being 31 recorded; 32 (6) The reduction in penalty or fine sought by the applicant; 33 (7) A statement verifying whether the applicant was issued any title policy or policies for the 34 subject property encumbered by the lien after the date the lien was recorded in the public 35 records of Brevard County, Florida. If such a policy or policies were issued to the applicant, 36 a copy of any such title policy shall be submitted with the application; 37 (8) Any other information which the applicant deems pertinent to the request, including but not 38 limited to the circumstances that exist which would warrant the reduction or satisfaction of 39 the penalty or fine. City of Cape Canaveral Ordinance No. 11-2019 Page 10 of 33 1 (c) Reimbursement to city for recording costs at time of application. The applicant shall submit, 2 at the time of application, an application fee established by the city to defray some or all of 3 the city's costs of processing the application including, but not limited to, personnel, legal, 4 and costs associated with recording the order imposing a penalty or fine and the requested 5 release or reduction of lien. These costs are nonrefundable, without regard for the final 6 disposition of the application. 7 (d) Application review. Upon receipt of the application and payment provided above, the code 8 enforcement division shall confirm that the violation, which resulted in the order imposing 9 penalty or fine, has been corrected. If the violation has been corrected and there are no 10 current code violation(s) upon the property in question, the code enforcement division shall 11 place the application and a staff recommendation upon the agenda of the next meeting of 12 the city council code enforcement board for the City of Cape Canaveral for a hearing. 13 (e) At the hearing before the city council code cnforocrixx t board, the board city council shall 14 review and consider the application for reduction or release of lien, provide the violator with 15 an opportunity to address the board regarding the application for reduction or release of lien, 16 and to take the testimony of other interested parties, including but not limited to city staff. 17 Upon review of the application and any testimony presented, the city council code enforcement 18 board shall by motion or writing approve, approve with conditions, or deny the application 19 for reduction or release of lien. 20 Whenever a recommendation or decision is made under this section, the following factors shall 21 be applied by the city in determining the amount of any reduction or release: 22 (1) The amount of any administrative and out-of-pocket costs incurred by the city which are 23 directly associated with the underlying code enforcement case and lien including, but not 24 limited to, code enforcement staff and attorney time, postage, advertising and recording 25 costs, and other city expenses related to any measure taken by the code board or city to abate 26 a nuisance caused by the violation; 27 (2) The gravity and number of the violation(s); 28 (3) The amount of the requested reduction; 29 (4) The time in which it took to bring the property into compliance; 30 (5) Whether the applicant was responsible for the violation which caused the lien; 31 (6) Whether the applicant is or will be a bona fide purchaser of the subject property and is filing 32 or has filed for a homestead exemption evidencing a desire to reside within the city on a 33 non -transient basis, or whether the property is or will be acquired for investment or other 34 purposes; 35 (7) Whether the applicant acquired the subject property with knowledge of the subject lien or 36 should have knowledge of the lien through reasonable due diligence; 37 (8) The accrued amount of the code enforcement fine or lien as compared to the current market 38 value of the property; 39 (9) With respect to a speculator, non -homestead purchaser of the subject property, the accrued 40 amount of the code enforcement fine or lien as compared to the investment/profit that will 41 be gained as a result of the purchase or sale of the property and the reduction or satisfaction; City of Cape Canaveral Ordinance No. 11-2019 Page 11 of 33 1 (10) Any previous or subsequent violations pertaining to the property unless an order finding 2 a violation is under appeal at the time of determination; 3 (11) Any previous or subsequent violations of the applicant pertaining to the other properties 4 owned within city, unless an order finding a violation is under appeal at the time of 5 determination; 6 (12) Any relevant information contained in any title policy required to be submitted to the city 7 under this section; 8 (13) Any financial hardship; 9 (14) Any other mitigating circumstance which may warrant the reduction or satisfaction of the 10 penalty or fine; and 11 (15) Any other administrative review criteria relevant to whether it is equitable to reduce or 12 release a lien which are adopted by the city manager, in writing, and are intended to be 13 applied to all applications on a uniform basis. 14 (f) To the maximum extent feasible, the city council code enforcement board shall collect, at a 15 minimum, all administrative and out-of-pocket costs incurred by the city as specified in 16 subsection (e)(1). If the city council code enforcement board approves the application to 17 reduce or release the lien and the approval is conditioned upon the applicant paying a 18 reduced penalty, fine, or any other condition, the satisfaction or release of lien shall not be 19 prepared or recorded in the public records of Brevard County, Florida by the city manager 20 until the condition(s) imposed by the city council code enforcement board have been 21 satisfied. 22 (g) Compliance and right ofappeal. The applicant shall have 30 days in which to comply with 23 the conditions imposed by the city council unless otherwise annroved by the city council in 24 a written agreement with the applicant. code enforcement board o Lub: t a writtcn appeal 25 as provided i xoin. Failure of do .743i.,icant to comply or timely appa i rill malt in tka 26 automatic denial of the application. 27 (1) If the application is denied, or if the application is automatically denied due to the failure 28 of the applicant to comply with the conditions imposed by the city council code enforcement 29 board tin of : paal, the applicant shall thereafter be barred from applying for a 30 subsequent reduction or release of lien for a period of one year from the date of denial. 31 During the one-year period, the lien may only be satisfied and released upon full payment 32 of the fine or penalty imposed in accordance with this division. 33 (2) Ii ; pi„o t trX17 appo l ti code enfor33n c .t board's decision to the city council, by 34 €fig a writtcn appoal within ten days of the date of the decision with the city clerk. The 35 notice of appal tip decision timt iz baing ppo d, the grounds fzr 36 a brief armor,, of the relief being sought. A nonrefundable filing fee of $100.00 shall 37 accompany the notice of appo 1. Upo vab ittal of a tin ci ; pa;l, tk city manatiz &hall 38 place the appeal of the detxx tion upon the agenda of the next regularly scheduled city 39 m ,trgto tlic c tent iyincticable. The city council shall render a final decision on 40 the application based upon the sworn application, the code enforcement board deter- m tip 41 and any other relevant information or testimony provided to the city council at the meeting 42 by the applicant, city manager or any other interested party. Any decision made by the city 43 council pursuant to this section shall be deemed final and not subject to any further City of Cape Canaveral Ordinance No. 11-2019 Page 12 of 33 1 administrative review by the city. The applicant shall have 30 days, or such time period 2 determined by the city council in a written agreement, in which to comply with any decision 3 of or condition imposed by the city council or the application shall be deemed automatically 4 denied and thereafter, the applicant shall be barred from applying for a subsequent reduction 5 or release of lien for a period of one year from the date of the city council's decision. During 6 the one-year period, the lien may only be satisfied and released upon full payment of the 7 fine or penalty imposed in accordance with this division. 8 (3) When a lien is satisfied as a result of reduced payment or release as ordered by the city 9 council, the city manager is hereby authorized to execute and record in the public records 10 of Brevard County, Florida, a satisfaction of lien on behalf of the city. 11 (h) Partial release of liens; liens recorded in error. Under appropriate circumstances 12 determined by the code enforcement board-er city council to be in the best interests of the 13 city, the code cnfor33mort board or city council may approve an application conditioned 14 upon a partial release of lien that releases a city lien from a specific piece of property. 15 However, the lien will remain in effect and will encumber any other properties which are 16 subject to the lien pursuant to law. Partial releases of lien may also be authorized by the 17 code cnfor33n xx t board or city council to account for any funds paid to the city to reduce 18 the amount owned owed on the lien. In addition, nothing herein shall prohibit the city 19 manager from releasing a lien, in whole or part, that was recorded in error by the city. An 20 application shall not be required to release a lien recorded in error. 21 (i) The provisions of this division shall be deemed supplemental and in addition to the city 22 council's right, at its discretion, to collect a lien imposed by the City and to compel or bring 23 properties into compliance with the City Code by any other lawful means deemed 24 reasonably necessary by the city council. 25 DIVISION 4. — SPECIAL MAGISTRATE 26 Sec. 2-261. Special Magistrates. 27 28 (a) The city council or city manager may appoint one (1) or more special magistrates to hear 29 code enforcement cases. The primary special magistrate shall be appointed by the city council. 30 However, the city manager shall have the authority to appoint secondary and alternate special 31 magistrates on an as needed basis in situations when the primary special magistrate has a conflict 32 of any kind: is unavailable on account of illness, disability or death: or the city's case load 33 temporarily requires an additional special magistrate to handle cases in a timely manner. 34 Appointments shall be made in the sole discretion of the city council or the city manager, as the 35 case may be, in accordance with applicable law on the basis of experience or interest in the subiect 36 matter jurisdiction of the violations. 37 38 (b) Special magistrates may be suspended, removed or terminated with or without cause by 39 the council. Appointments to fill any vacancy shall be for the remainder of the unexpired term. 40 41 (c) Special magistrates shall be members of the Florida Bar in good standing for five or more 42 years. The special magistrate must demonstrate satisfactory knowledge of municipal law and the 43 general procedures for enforcement of municipal codes, and must demonstrate a temperament 44 suitable for the exercise of quasi-judicial powers vested in each special magistrate. Special 45 magistrates shall not be city employees or officers. The city manager shall be responsible for City of Cape Canaveral Ordinance No. 11-2019 Page 13 of 33 1 neaotiatina and executing a contract on behalf of the City with the special magistrate and the 2 special magistrate may be compensated at a rate to be agreed upon in the contract. The contract 3 will be in a form prepared and approved by the city attorney. 4 5 (d) The city attorney may attend the code enforcement hearings conducted by the special 6 magistrate and represent city staff in the presentation of cases, or the code enforcement officer 7 may present cases, at the option of the city manager depending upon the substance and 8 complexities of any Given case. To the extent necessary and consistent with the city's interests to 9 ensure compliance with city Codes, the city attorney will defend final orders of the special 10 magistrate which are appealed by violators to a court of competent jurisdiction. 11 12 Sec. 2-262. Powers of Snecial Maeistrates. 13 14 Special magistrates shall have the power to: 15 16 (al Hear and decide violations of the Code. 17 (bl Adopt administrative rules for the efficient conduct of hearings consistent with the city 18 code and other applicable law. Said rules shall be in a form approved by the city attorney. 19 (c) Subpoena alleged violators and witnesses for hearings: subpoenas shall be served by the 20 county sheriff, process server or by the city staff. 21 (d) Subpoena evidence deemed relevant to hearings. 22 (el Take testimony under oath. 23 (f) Assess and order the payment of civil penalties as provided herein. 24 (al Issue orders having the force of law to command whatever steps are necessary to brim a 25 violation into compliance. 26 (h) Have jurisdiction to consider and address orders previously entered by the city code 27 enforcement board. 28 29 Sec. 2-263. – Snecial Magistrate nroceedines; Duties, responsibilities and rowers. 30 The special magistrate shall have duties, responsibilities and powers as set forth, and shall be 31 Governed in all respects, by the provisions of Chapter 162, Florida Statutes, this division, and 32 division 1 of this article, and shall have the power to hear appeals as otherwise set forth in the city 33 Code of Ordinances. 34 35 Secs. 2-2644-2-279. - Reserved. 36 DIVISION 5 3. - CODE ENFORCEMENT CITATIONS 37 Sec. 2-280. - Intent and purpose. 38 (a) It is the intent and purpose of this division to provide a supplemental procedure for the 39 enforcement of city codes and ordinances. Nothing contained in this division shall prohibit 40 the city from enforcing its Code and ordinances by any other lawful means. City of Cape Canaveral Ordinance No. 11-2019 Page 14 of 33 1 (b) It is also the intent and purpose of this division to enhance the effectiveness of code 2 enforcement within the city by authorizing the enforcement methods and penalties contained 3 in this division for the betterment and promotion of the public health, safety, and welfare of 4 the citizens of the city. 5 Sec. 2-281. — Reserved. 6 The following words and *Naga, Fh11 hYro tho nwaning ascribed zein utKk.wL th context 7 clearly indicates otherwise: 8 (a) Codc enforcement officer 1' 11 rik\xin city manager designated employees or agents whose 9 . - • - .. .. - .. - • _ _ - . . 10 but are n. -X. to, code inspectza, Wilding inspectors, the building offi al, law 11 enforoonxmt officers, fire safety inspectors, or any other employee or a a°rt authorized by the 12 city council and/or city manager. All such officers employed by the city shall receivo trainng 13 as prescribed by the city council and/or city manager. 14 (13)--Per—Sen 31N111 moan any individual, caoazationo, ja t venturoa, partnzahipa, corporations, 15 truv6, gale proprietors ipc, 1.d any and all other groups or combinations and 16 17 time. ahll be as defined by F.S. ch. 162, and x may be amended from time to 18 ahll scan the act of breaking, infringing or tranagressing any provision of the 19 City Code, its ordinances or „ z kyr; by a person, ixtlyzamt to this division. 20 Sec. 2-282. - Authorization of citation program. 21 (a) The city hereby adopts a code enforcement citation system to provide an additional and 22 supplemental method of enforcing the enumerated codes and ordinances enumerated in 23 section 2-283 or specifically made subject to this division elsewhere in the City Code. The 24 enforcement method shall be by the issuance of citations for violation of duly enacted city 25 codes and ordinances in accordance with the rules and procedures established by this division 26 and F.S. Ch. 162. 27 (b) Code enforcement officers shall not have the power of arrest for purposes of bringing a 28 violation in compliance. For each violation, the code enforcement officer shall determine, 29 using reasonable discretion, whether to prosecute the violation through the civil citation 30 system under this division and/or the code enforcement board or special magistrate. 31 Sec. 2-283. - Applicable codes and ordinances; class violation. 32 (a) The following city codes and ordinances may be enforced by civil citation to the Brevard 33 County Court, and are assigned the violation classification enumerated below: 34 (1) Chapter 38, article IV, Fireworks Class II. 35 (2) Chapter 34, article II, Litter Class I. 36 (3) Chapter 34, article III, Property Maintenance Standards Class I. 37 (4) Chapter 34, article V, Noise Class I. 38 (5) Chapter 34, article VII, Lights Class I. 39 (6) Section 14-3, Bees and beehives prohibited Class I. City of Cape Canaveral Ordinance No. 11-2019 Page 15 of 33 1 (7) Chapter 14, article III, Sea Turtles Class I. 2 (8) Section 110-467, Garage sales Class I. 3 (9) Section 110-582, Swimming pool barriers Class II. 4 (10) Chapter 62, Solid waste Class I. 5 (11) Section 110-487, Rental restrictions on dwelling units Class IV. 6 (12) Chapter 82, article XIV, Numbering of Buildings and Property Class I. 7 (13) Chapter 82, article V, Registration and Maintenance of Properties in Foreclosure 8 Class IV. 9 (14) Section 94-6, Prohibited signs and features Class I. 10 (15) Chapter 90, article V, construction site stormwater runoff control Class II. 11 (16) Chapter 92, Fertilizer Land Application Class I. 12 (17) Chapter 6, article III, Possession and Consumption Class I. 13 (18) Chapter 50, section 50-4, Sleeping and Camping in Public Areas and Beaches Class 14 I. 15 (b) In the event of a conflict between the civil penalties enumerated in this section and a civil 16 penalty specifically enumerated elsewhere in this Code or other ordinances, the more stringent 17 penalty shall apply. 18 Sec. 2-284. - Training of code enforcement officers. 19 (a) The training and qualifications of the code enforcement officers shall be established by the 20 city council or city manager. 21 (b) Except for sworn law enforcement officers, the designation of code enforcement officers 22 under this division does not confer the power of arrest or other law enforcement powers nor 23 subject the code enforcement officers to the provisions of F.S. Ch. 943. 24 Sec. 2-285. - Citation powers; personal investigation; reasonable cause. 25 Any code enforcement officer is hereby authorized to issue a citation to a person when, based 26 upon personal investigation, the officer has reasonable cause to believe that the person has 27 committed a civil infraction in violation of the duly enacted code or ordinance which is either 28 identified in section 2-283 of this division or specifically made subject to this division elsewhere 29 in the City Code, regardless of whether the violation constitutes a repeat violation. Nothing in this 30 section shall prohibit the city from enforcing its codes or ordinances by any other means. 31 Sec. 2-286. - Violation; penalties; general. 32 (a) A violation of a city code or ordinance specifically made subject to this division is hereby 33 deemed a civil infraction. 34 (b) Each violation of a city code or ordinance specifically made subject to this division is a 35 separate civil infraction. Each day such violation shall continue shall be deemed to constitute 36 a separate civil infraction. City of Cape Canaveral Ordinance No. 11-2019 Page 16 of 33 1 (c) The maximum civil penalty pursuant to this division, shall not exceed $500.00 plus all 2 applicable court costs and legislative assessments, per violation. 3 (d) Any citation issued pursuant to this article may be contested in county court. 4 (e) Any person who willfully refuses to sign and accept a citation issued by a code enforcement 5 officer shall be guilty of a misdemeanor of the second degree, punishable as provided in F.S. 6 §§ 775.082 and 775.083. 7 (f) The provisions of this part shall not apply to enforcement pursuant to sections 553.79 and 8 553.80 of the Florida Building Code, as applied to construction, provided that a building 9 permit is either not required or has been issued by the city. 10 Sec. 2-287. - Citation issuance procedure. 11 All citations issued pursuant to this division by a code enforcement officer shall be in 12 accordance with the following procedure: 13 (a) Warning notice. Except as provided in subsection (b), a code enforcement officer shall 14 provide a warning notice prior to issuing a citation. The warning notice shall at a minimum 15 provide the following: 16 (1) The code or ordinance provision violated; 17 (2) The date of the issuance of the warning notice; 18 (3) Specified time for compliance (the time period for compliance shall not exceed 30 19 days); 20 (4) Maximum amount of fine if violation is not corrected; 21 (5) Code enforcement officer's signature; and 22 (6) A place for the signature of the person receiving the warning. 23 If upon personal investigation, the code enforcement officer finds that the person has not corrected 24 the violation within the time period, the code enforcement officer may issue a citation to the person 25 who has committed the violation. The citation shall be in a form proscribed in section 2-288. 26 (b) Repeat violation, serious threat to public, or irreparable. A code enforcement officer is not 27 required to provide the person with a reasonable time period to correct the violation prior to 28 the issuance of a citation and may immediately issue a citation if a violation is found or if the 29 code enforcement officer has reason to believe that the violation presents a serious threat to 30 the public health, safety or welfare, or if the violation is irreparable or irreversible. 31 (c) Delivery of citations. After issuing a citation to a person, the code enforcement officer shall: 32 (1) Deposit the original citation and one copy of the citation with the clerk of court for the 33 Brevard County Court. 34 (2) Provide the person cited with one copy; and 35 (3) Retain one copy in the code enforcement officer's case file. 36 (d) Issuing citations to persons. Written warning notices, if applicable, and citations shall be 37 issued to a person as follows: City of Cape Canaveral Ordinance No. 11-2019 Page 17 of 33 1 (1) If the person is an individual, the code enforcement officer shall issue the warning notice 2 or citation to the person by hand delivery. In the absence of the person who has committed 3 the violation, issuance of a warning notice or citation may be accomplished by leaving a 4 copy of the warning notice or citation at a person's usual place of residence with any 5 person residing therein who is 15 years of age or older and informing the person of the 6 contents or forwarding a copy of the warning notice or citation by registered or certified 7 mail, return receipt requested. 8 (2) If the person is a business or other entity, the code enforcement officer shall issue the 9 warning notice or citation to any employee or principal of the entity, during regular 10 business hours, and inform the employee or principal of the contents or by forwarding a 11 copy of the warning notice or citation by registered or certified mail, return receipt 12 requested. Each employee of the business or principal shall be deemed to be an agent of 13 the business for service of warning notices and citations. 14 (e) Person required to sign citation. Except in the absence of the person who has committed the 15 violation, a code enforcement officer shall require the person to sign and accept a citation 16 being issued. If the person refuses to sign and accept the citation, the code enforcement officer 17 shall write the words "refused to sign" or any other words of similar meaning in the space 18 provided in the citation for the person's signature and shall leave a copy of the citation with 19 the person if possible, or mail a copy to the person, if possible, by registered or certified mail, 20 return receipt requested. Following such refusal to sign and accept, the code enforcement 21 officer shall also contact the city police department or sheriff to report such violation of section 22 2-286(e) and F.S. § 162.21(6). 23 Sec. 2-288. - Citation form. 24 Unless a uniform code citation is promulgated by administrative order issued by the chief 25 judge of the 18th judicial circuit or state statute, the citation issued by a code enforcement officer 26 shall be in a form prescribed by the city council by resolution, and shall contain at a minimum the 27 following: 28 (a) The date and time of issuance; 29 (b) The name and address of the person to whom the citation is issued; 30 (c) The date and time the civil infraction was committed; 31 (d) The facts constituting reasonable cause; 32 (e) The number or section of the code or ordinance violated; 33 (f) The name and authority of the code enforcement officer; 34 (g) The procedure for the person to follow in order to pay the civil penalty or to contest the 35 citation; 36 (h) The applicable civil penalty if the person elects to contest the citation; 37 (i) The applicable civil penalty if the person elects not to contest the citation; and 38 (j) A conspicuous statement that if the person fails to pay the civil penalty within the time 39 allowed, or fails to appear in court to contest the citation, the person shall be deemed to 40 have waived his or her right to contest the citation and that, in such case, judgment may 41 be entered against the person for an amount up to the maximum civil penalty. City of Cape Canaveral Ordinance No. 11-2019 Page 18 of 33 1 Sec. 2-289. - Payment of penalty; court hearings. 2 (a) Citation not contested. If the person elects not to contest the citation, the person shall pay in 3 full the applicable civil penalty, made payable by cash or check to the city and delivered to 4 the city manager, within 14 calendar days after issuance of the citation. The civil penalty shall 5 be deposited in the city's general fund. By paying the citation, the person shall be deemed to 6 have admitted the infraction and waived the right to a hearing. The city manager shall instruct 7 the code enforcement officer who issued the citation to promptly notify, in writing, the clerk 8 of the court for the county court that the person elected not to contest the citation and the 9 matter involving the particular paid citation has been closed and requires no hearing before 10 the court. 11 (b) Failure to pay citation and request court hearing. If the person cited fails to pay the civil 12 penalty by the 14th calendar day after the issuance of the citation or fails to request a court 13 hearing within the time prescribed in subsection (c), the person shall have waived any right to 14 contest the citation and a judgment shall be entered against the person cited in an amount up 15 to the maximum civil penalty plus applicable court costs. In addition, an order to show cause 16 may be issued by the county judge requiring the person cited to appear in county court to 17 explain the person's failure to pay or request a court hearing. Failure to respond to an order to 18 show cause may result in issuance of an arrest warrant or other lawful action by the court. 19 (c) Citation contested. If the person elects to contest the citation, the person shall, within 21 20 calendar days of issuance of the citation, request, in writing, the clerk of the court for the 21 county court to schedule a hearing before a county judge. The person shall immediately notify 22 the city of the request for hearing by U.S. mail or hand delivery to the city manager. Said 23 hearing shall be scheduled as soon as the court calendar shall permit. 24 (d) Judicial determination of violation and penalties; civil judgments; payment of civil 25 judgment. 26 (1) A county judge, after a hearing on the citation, shall make a determination whether or 27 not a violation of the code or ordinance cited has been committed. If a violation is found 28 to have occurred, the county judge may order the violator to correct the violation and may 29 impose a civil penalty up to the maximum civil penalty plus all applicable costs of 30 prosecution and legislative assessments, plus applicable court costs; in no event, however, 31 shall such civil penalty imposed by the county judge be less than the reduced civil penalty 32 set forth herein. 33 (2) The county judge may provide for the civil penalty to be paid, and the violation to be 34 corrected, within such time as the county judge determines to be appropriate. If the person 35 found to be in violation fails to pay the civil penalty or correct the violation within the 36 time provided, a civil judgment shall be entered against that person in an amount up to 37 the maximum civil penalty plus applicable court costs. 38 (3) Should the person cited schedule a hearing as provided for herein and thereafter fail to 39 appear at such hearing, the person shall be deemed to have waived the right to contest the 40 citation, and a civil judgment shall be entered against the person in an amount up to the 41 maximum civil penalty plus applicable court costs; provided, however, that the court shall 42 have the discretion to continue or reschedule any hearing when it determines that doing 43 so will further the interest of justice. In such an event, the clerk of the court shall notify 44 the code enforcement officer and the person cited of the date and time of the hearing. In City of Cape Canaveral Ordinance No. 11-2019 Page 19 of 33 1 addition, an order to show cause may be issued by the county judge requiring the person 2 cited to appear in county court to explain the person's failure to appear at the hearing. 3 Failure to respond to the order to show cause may result in issuance of an arrest warrant. 4 (4) Should the person cited willfully fail to comply with a court order to abate or correct 5 the violation, the court, after due notice and hearing on the matter, may hold the violator 6 in civil contempt and may enter an order to that effect. 7 (5) In the event that a civil judgment is entered against the person cited as provided herein, 8 the city may record a certified copy of said judgment in the official records of the county 9 and the same shall thereafter constitute a lien against the land on which the violation 10 exists and upon any other real or personal property owned by the violator. 11 (6) In the event that an order is entered finding that a violation of the ordinance cited has 12 been committed, the city may record a certified copy of said order in the official records 13 of the county and the same shall thereafter constitute notice to and be binding upon the 14 violator and any subsequent purchasers, successors in interest or assigns if the violation 15 concerns real property, and the findings therein shall be binding upon the violator and 16 any subsequent purchasers, successors in interest or assigns if the violation concerns real 17 property. 18 (7) Payment of any civil penalty imposed by civil judgment or county judge shall be made 19 to the clerk of the court, who shall forward the monies collected to the city manager for 20 deposit into the city's general fund. If a judgment has been entered for the civil penalty, 21 the clerk of the court shall notify the city when the judgment has been paid and the 22 necessary satisfaction of judgment shall be prepared and recorded in the official records 23 of the county. 24 (8) Should the provisions of this section conflict with any administrative order issued by 25 the court which sets forth the court's procedures required for handling code enforcement 26 citations, the conflicting provisions of the court's administrative order shall prevail. 27 28 A code enforcement officer charged with the duty to enforce this division aha11 hate the right 29 to aVia-- pl ate real jxoperty in accordance witk i; able feda l znd z a o kzr.. If entry 30 upon private real property is denied, the city manago is he cby authorized to direct the city 31 attorney to obtain an inrupc;,tion warrant from a court of compo nt jurzdiction for purposes of 32 authorizing a code enforcement officer to inspect the private real property and personal property 33 thereon. 34 Sec. 2-291. - Classes of violations and penalties. 35 (a) All violations of city codes and ordinances authorized for enforcement under this division 36 shall be classified and assigned civil penalties as follows: Violation Civil Penalty Class I $100.00 City of Cape Canaveral Ordinance No. 11-2019 Page 20 of 33 Class II 200.00 Class III 300.00 Class W 500.00 1 2 (b) Any city code or ordinance enacted subsequent to the adoption of this division may set forth 3 the applicable civil penalty for violations by designating the appropriate violation 4 classification provided in this section. 5 (c) All city code or ordinance provisions which are subject to this division and which do not 6 specifically set forth an applicable civil penalty classification shall be penalized as a class I 7 violation. 8 DIVISION 6 4. - CRIMINAL NUISANCE ABATEMENT BOARD 9 Sec. 2-292. - Purpose and intent. 10 Pursuant to the city's authority established in F.S. § 893.138, the purpose of this division is to 11 promote, protect and improve the health, safety, welfare and quality of life of the citizens of the 12 City of Cape Canaveral by creating an administrative board with the authority to impose 13 administrative fines and other noncriminal penalties in order to provide an equitable, expeditious, 14 effective, and inexpensive method of enforcing the City Code under circumstances when a pending 15 or repeated violation continues to exist. 16 It is the intent of this division to provide the city with an additional and supplemental means 17 to abate drug, prostitution, dealing in stolen property, and criminal street gang activities amounting 18 to a public nuisance. Nothing contained herein shall preclude the city from abating nuisances under 19 F.S. § 60.05 or as otherwise provided by federal, state or local law. 20 Sec. 2-293. - Establishment; membership; meetings; definitions. 21 (a) Criminal nuisance abatement board established. Pursuant to F.S. § 893.138, the code 22 enforcement board or a separate board established by resolution of the city council in 23 furtherance of implementinz the intent and purpose of this division is hereby designated and 24 established as the criminal nuisance abatement board and shall act as the city's administrative 25 board to hear complaints regarding nuisances as provided for in this division. 26 (b) Membership. Dependinz on how the city council chooses to designate and establish the board 27 pursuant to subsection (a), tThe terms of office of the board members shall either coincide 28 with the terms of office of the code enforcement board members or the separate board' s terms 29 of office shall be established in accordance with Section 2-171 of the City Code. 30 (c) Meetings. The board shall establish a schedule of regular meetings as deemed necessary. at 31 spa': in-krya'rr.ag t c -board may d:i-Krriin, Lit not less frequently than once every two months. 32 Regular meetings of the board ahall b - - - - - City of Cape Canaveral Ordinance No. 11-2019 Page 21 of 33 1 regularly scheduled meetings of the code enforcement board and may be cancelled by the 2 chairperson if there is no business to come before the board. 3 (d) Definitions. As used in this division, the following terms shall have the following meanings, 4 unless the context clearly indicates that a different meaning is intended: 5 City manager shall mean the city manager of Cape Canaveral or the city manager's designee. 6 Controlled substance shall mean any drug, narcotic, or other substance identified and 7 prohibited under F.S. ch. 893, as may be amended, and any substance sold in lieu of a controlled 8 substance in violation of section 817.563 or any imitation controlled substance defined in section 9 817.564, Florida Statutes. 10 Criminal street gang shall have the same meaning as set forth under F.S. § 874.03, as may be 11 amended. 12 Criminal street gang activity shall mean those activities committed by a criminal street gang 13 or member thereof as set forth under [F.S.] § 874.03, as may be amended. 14 Dealing in stolen property shall have the same meaning as that provided under F.S. § 812.019, 15 as may be amended. 16 Nuisance abatement coordinator shall mean the officer or officers of the Brevard County 17 Sheriff's Office Dap ti x t or city staff person designated by the city manager responsible for 18 overseeing and enforcing the provisions of this division on behalf of the city. 19 Prostitution or prostitution -related activity shall mean any act constituting a violation of F.S. 20 § 796.07, as may be amended. 21 Recording secretary for the nuisance abatement board/recording secretary shall mean a city 22 staff member or clerk assigned to the criminal nuisance abatement board. 23 Recurring criminal nuisance means any single or multiple instance of conduct prescribed in 24 F.S. § 893.138, as may be amended, that occurs during the effective term of an order entered by 25 the board. 26 Stolen property shall mean tangible, intangible, personal or real property having any monetary 27 or market value and that has been the subject of any temporary or permanent criminal taking in 28 violation of the laws of the state. 29 Sec. 2-294. - Powers. 30 The criminal nuisance abatement board shall have the powers delineated in F.S. § 893.138, 31 which shall include, but not be limited to, the following: 32 (a) Adopting rules for the conduct of its hearings. 33 (b) Subpoenaing alleged violators and witnesses to its hearings. 34 (c) Subpoenaing records, surveys, plats, or other documentary evidence which subpoenas 35 shall be served by the police department or sheriff. 36 (d) Taking testimony under oath. 37 (e) Issuing orders having force and effect of law commanding whatever steps are necessary 38 to bring a violation into compliance. 39 (f) Establishing and levying fines. City of Cape Canaveral Ordinance No. 11-2019 Page 22 of 33 1 Sec. 2-295. - Criminal nuisances established; violations. 2 It shall be a criminal public nuisance and a violation of this division for any place or premises, 3 or any part thereof, to be used or allowed to be used: 4 (a) On more than two occasions within a six-month period for prostitution or prostitution - 5 related activities; 6 (b) On more than two occasions within a six-month period, as the site of the unlawful sale, 7 delivery, manufacture, or cultivation of any controlled substance; 8 (c) On one occasion as the site of the unlawful possession of a controlled substance, where 9 such possession constitutes a felony and that has been previously used on more than one 10 occasion as the site of the unlawful sale, delivery, manufacture, or cultivation of any 11 controlled substance; 12 (d) By a criminal street gang for the purpose of conducting a pattern of criminal street gang 13 activity; of 14 (e) On more than two occasions within a six-month period, as the site of a violation relating 15 to dealing in stolen property; - 16 (f) On two or more occasions within a six-month period, as the site of a violation of chapter 17 499, Florida Druz and Cosmetic Act: or 18 (a) Anv pain-mana Cement clinic, as described in s. 458.3265 or s. 459.0137, Florida 19 Statutes, which has been used on more than two occasions within a six-month period as 20 the site of a violation of: 21 (1) Section 784.011. s. 784.021, s. 784.03, or s. 784.045, Florida Statutes, relating to assault 22 and battery: 23 (2) Section 810.02, Florida Statutes, relatint to buralarv: 24 (31 Section 812.014, Florida Statutes, relating to theft: 25 (41 Section 812.131. Florida Statutes, relating to robbery by sudden snatching: or 26 (51 Section 893.13, Florida Statutes, relating to the unlawful distribution of controlled 27 substances. 28 Sec. 2-296. - Enforcement procedures; notice; hearing. 29 *** 30 (d) All notices under this division shall be hand -delivered by the Brevard County Sheriffs Office 31 Department, where practical, or where not practical or impossible, by certified mail, return 32 receipt requested, to the property owner of record at the address as it appears in the public 33 records of the county property appraiser's office. If the notice is returned for any reason, then 34 service shall be effected by mailing the notice through regular delivery to the address of the 35 premises and by posting the notice in accordance with F.S. ch. 162. Proof of service shall be 36 by written declaration indicating the date, time, and manner in which service was made. 37 *** 38 Sec. 2-297. - Penalties; fines; liens; recording. City of Cape Canaveral Ordinance No. 11-2019 Page 23 of 33 1 (a) The city manager shall, upon notification by the recording secretary that an affidavit of 2 noncompliance has been filed by the nuisance abatement coordinator reflecting that a previous 3 order of the board has not been complied with, schedule a hearing before the board. Upon 4 evidence establishing that noncompliance exists, the board shall enter an order imposing 5 conditions and any other measures to abate the criminal nuisance as provided by this division, 6 including the imposition of a fine. 7 (b) A fine imposed pursuant to this section shall not exceed $250.00 per day for a first 8 occurrence of a criminal nuisance and shall not exceed $500.00 per day for a recurring 9 criminal nuisance. In addition to the fine, the violator shall also provide for the payment of 10 reasonable costs, including reasonable attorney fees associated with investigations of and 11 hearings on public nuisances, as reasonably determined by the board. However, total fines 12 imposed in any action brought pursuant to this division shall not exceed $15,000.00. In 13 determining the amount of the fine, if any, the board shall consider the following factors: 14 (1) The gravity of the criminal nuisance; 15 (2) Any actions taken by the owner to correct the criminal nuisance; and 16 (3) Any previous nuisances maintained or permitted by the owner. 17 (c) A certified copy of an order imposing a fine may be recorded in the public records of the 18 county, and thereafter shall constitute a lien against the land on which the violation exists and 19 upon any other real or personal property owned by the owner. Upon petition to the circuit 20 court, such order may be enforced in the same manner as a court judgment by the sheriffs of 21 this state, including levy against personal property, but such order shall not be deemed to be 22 a court judgment except for enforcement purposes. A fine imposed pursuant to this division 23 shall continue to accrue until the owner comes into compliance or until the judgment is 24 rendered in a suit to foreclose on a lien filed pursuant to this section, whichever occurs first. 25 A lien arising from a fine imposed pursuant to this section runs in favor of the city, and the 26 city may execute a satisfaction or release of a lien in the same manner as provided under 27 section 2-260, or may otherwise seek to foreclose on the lien. However, where the nuisance 28 abatement action is based on a stolen property nuisance, and is brought against a property 29 owner operating an establishment where multiple tenants, on one site, conduct their own retail 30 businesses, the property owner shall not be subject to a lien against the owner's property or 31 the prohibition of operation provision if the property owner elects to evict the business 32 declared to be a nuisance within 90 calendar days after notification by registered mail to the 33 property owner of a second stolen property conviction of the tenant. Any lien recorded against 34 real property may be foreclosed by the city and the owner of such real property shall be liable 35 for all costs, including a reasonable attorney's fee, associated with the recording of all orders 36 and foreclosure. 37 (d) The board may further bring a complaint pursuant to F.S. § 60.05, seeking a permanent 38 injunction against any nuisance as described in this division. This section does not restrict the 39 right of any person to proceed under F.S. § 60.05, against any criminal nuisance. 40 Sec. 2-298. - Appeal. 41 A party aggrieved by a final administrative order of the board shall have the right to appeal 42 said order to a court of competent jurisdiction, pursuant to the rules of procedure of the court. 43 Sec. 2-299. - Reserved. City of Cape Canaveral Ordinance No. 11-2019 Page 24 of 33 1 Section 3. Conforming Code Amendment. Generally establishing a code enforcement 2 special magistrate process requires conforming amendments throughout the City Code to insert a 3 reference to special magistrate. The following City Code sections are hereby amended as follows 4 (underlined type indicates additions and strikeout type indicates deletions, while asterisks (* * *) 5 indicate a deletion from this Ordinance of text existing in the specific section set forth below. It 6 is intended that the text in specific section's denoted by the asterisks and set forth in this Ordinance 7 shall remain unchanged from the language existing prior to adoption of this Ordinance: 8 9 Sec. 14-53. - Enforcement and penalty. 10 If the administrator shall find that any of the sections of this article are being violated, he shall 11 notify the property owner or occupant of such violations, in writing, indicating the nature of the 12 violation and ordering any action necessary to correct it. Any person found guilty of violating any 13 of the sections of this article after a first written warning shall be punished in accordance with 14 section 1-15. In addition to any other remedies, whether civil or criminal, violations of this article 15 may be enforced by the special magistrate or code enforcement board and may be restrained by 16 injunction, including a mandatory injunction, and otherwise abated in any manner provided by 17 law. 18 Sec. 30-35. - Penalty and enforcement. 19 Any person who violates any provision of this article shall be guilty of an offense against the city 20 and shall be punished as provided in section 1-15 of the City Code. The provisions of this article 21 may be enforced either by prosecution as a misdemeanor through the state attorney's office for 22 Brevard County, Florida, or through the powers and jurisdiction of the City special magistrate or 23 code enforcement board, or by any other legal or equitable form of action. 24 Sec. 34-43. - Abatement; assessment. 25 Under this division, if a property owner does not comply with the notice of violation and 26 corresponding order of the city special magistrate or code enforcement board within the time 27 specified, the city may remove the litter or cause the litter to be removed. The city may charge or 28 assess the property and owner with the actual cost of labor performed, materials furnished and 29 disposal fees. Such amounts shall constitute an indebtedness of the owner of the property to the 30 city and shall constitute a lien against the property which shall be superior in dignity to all other 31 liens, except liens for state, county, and city taxes and liens for special assessments for public 32 improvements. 33 Sec. 34-95. - Enforcement. 34 The code enforcement officer and special magistrate or code enforcement board shall enforce this 35 article. Alternatively, this article may be enforced through the issuance of a code enforcement 36 citation pursuant to the procedure set forth in chapter 2 of this Code. 37 Sec. 34-182. - Notice to abate. 38 (a) Issuance. Whenever it comes to the attention of the enforcement authority that any nuisance as 39 defined in section 34-181 appears to exist on private property, he shall cause a written notice to be 40 affixed to the property, declaring the existence of the nuisance and ordering whoever has an interest City of Cape Canaveral Ordinance No. 11-2019 Page 25 of 33 1 in the property to comply with this article by removing the abandoned property or inoperable 2 vehicle within 72 hours of the notice. In addition to the foregoing notice, a copy of the notice shall 3 be delivered to the owner or occupant of the private property; if a copy of the notice cannot be 4 delivered to the owner or occupant, a copy of the notice shall be left at the property, with a duplicate 5 copy sent to the owner or occupant of the property by certified mail, return receipt requested. (b) 6 Contents. The notice shall contain the request for removal within the time specified in subsection 7 (a) of this section and the notice shall advise that upon failure to comply with the notice of removal 8 the enforcement authority shall undertake such removal, with the cost of removal to be levied 9 against the owner or occupant of the property. The notice shall also advise the person to whom the 10 notices are applicable of his right to contest the determination of the enforcement authority that a 11 violation under this article exists by requesting a hearing before the special magistrate or code 12 enforcement board and that, if such a hearing is desired, the request can be made by filing a written 13 request with the special magistrate or code enforcement board secretary. A request for a hearing 14 must be made within the time for removal set forth in subsection (a) of this section. 15 Sec. 34-183. - Special magistrate or code enforcement board hearing procedures. 16 (a) Setting date; notice. Upon receiving a request for a hearing pursuant to this article, the special 17 magistrate or code enforcement board secretary shall set the hearing before the next regular 18 meeting of the special magistrate or code enforcement board. Notice of the hearing shall be given 19 to the person requesting the hearing and to the enforcement authority. No other notices are 20 required. A request for hearing under this section stays all enforcement proceedings until an order 21 of the special magistrate or code enforcement board is entered. 22 (b) Conduct. Hearings under this article shall be conducted under and governed by the procedures 23 set forth in Chapter 2, Article VI of the City Code section 2 216 ct seq. 24 (c) Board determination. The special magistrate or code enforcement board shall determine either 25 that there exists a nuisance or that there does not exist a nuisance. With reference to hearings under 26 this article, the special magistrate or code enforcement board has no other authority and is not 27 authorized to modify or vary the terms and conditions contained in this article. 28 (d) Issuance, filing of board order. The special magistrate or code enforcement board shall issue a 29 written order, either finding the existence of a nuisance or finding that a nuisance does not exist. 30 Sec. 34-184. - Compliance with notice or order to remove; removal by city upon 31 noncompliance. 32 Within the time for removal set forth in the notice for removal, or within 48 hours of the date on 33 which an order is entered by the special magistrate or code enforcement board affirming the 34 determination of the enforcement authority, the owner of the abandoned property or inoperable 35 vehicle and the owner or occupant of the private property on which the same is located, either or 36 all of them, shall cause the removal of the vehicle. If the violation is not remedied within the time 37 set forth in this section, the enforcement authority shall have the right to take possession of the 38 abandoned property or inoperable vehicle and remove it from the premises. In the event of removal 39 and disposition of the abandoned property or inoperable vehicle by the enforcement authority, the 40 owner of the abandoned property or inoperable vehicle and the owner and occupant of the private City of Cape Canaveral Ordinance No. 11-2019 Page 26 of 33 1 property from which the abandoned property or inoperable vehicle is removed shall be jointly and 2 severally liable for the expenses incurred in so doing. It shall be unlawful for any person to interfere 3 with, hinder or refuse to allow the enforcement authority to enter upon private property for the 4 purpose of removing the abandoned property or inoperable vehicle under the provisions of this 5 article. 6 Sec. 50-4. Sleeping and camping in public areas and beaches. 7 8 (f) Enforcement and penalties. 9 *** *** 10 (4) Any person who violates or fails to comply with any provisions of this section 50-4 shall be 11 subject to the following: (a) The issuance of a Class I citation in accordance with the provisions of 12 section 2-280, et seq., "Code Enforcement Citations"; or (b) Enforcement by other means 13 including, but not limited to: a summons; a notice to appear in the county or circuit court; an arrest; 14 an action before the special magistrate or kode enforcement board; or a civil action for injunctive 15 relief; or (c) Punished in accordance with the general penalty set forth in section 1-15 of this Code. 16 Sec. 54-25. - Suspension of use of city park. 17 (a) The suspension provisions set forth in this section are a management tool independent of any 18 other enforcement tool referenced under this article for the purpose of managing the city parks for 19 the common welfare and safety of all city park patrons and preservation of all city park facilities. 20 The intent and purpose of this section is to ensure compliance with this article and to protect the 21 public health, safety, and welfare of city park patrons. Suspension of a person's privilege to use 22 city parks or facilities therein are intended to occur only when that person has demonstrated an 23 inability to comply with the provisions set forth in this article or has engaged in certain illegal or 24 violent behavior in a city park in violation of the law. 25 (b) A person's privilege to use a city park or any facility therein may be suspended by city law 26 enforcement or the city's culture and leisure services director of leisure services when the person 27 has been found guilty of violating any provision of this article on more than two occasions within 28 a three year period. For purposes of this section, the term "guilty" shall include a plea of nolo 29 contendere, voluntary payment of a citation issued in accordance with this article, or an 30 adjudication of guilt by a court of law or special mauistrate or code enforcement board. The first 31 suspension shall be for a period of up to 90 days, and each additional suspension thereafter, the 32 suspension period shall be for up to 90 days per applicable offense, not to exceed two consecutive 33 years for any one suspension. 34 (c) A person's privilege to use a city park or any facility therein may be suspended by city law 35 enforcement or the city's director of leisure services when a person is cited for a violation of 54- 36 15 (b), (d) or (e) for certain trespass cases, or 54-21 for interfering with personnel. Suspension for 37 a first offense shall be for 30 days, plus an additional 60 days for every other similar offense, not 38 to exceed two consecutive years for any one suspension. City of Cape Canaveral Ordinance No. 11-2019 Page 27 of 33 1 (d) A person's privilege to use a city park or any facility therein may be suspended for up to two 2 consecutive years by city law enforcement for each incident in which that person has been charged 3 with committing a violent criminal offense in a city park including, but not limited to, breach of 4 peace under § 870.03, Florida Statutes; affrays and riots under § 870.01; aggravated battery under 5 § 784.045, Florida Statutes, and resisting an officer with violence under § 843.01, Florida Statutes. 6 (e) A person's privilege to use a city park or any facility therein may be suspended for up to two 7 consecutive years by city law enforcement for each incident in which that person has been charged 8 with engaging in or allowing in a city park the possession, use or sale of controlled substances, as 9 that term is defined in § 893.03, Florida Statutes, in violation of law. 10 (f) A person's privilege to use a city park or any facility therein may be suspended for up to two 11 consecutive years by city law enforcement for each incident in which that person has been charged 12 with engaging in or allowing prostitution in a city park. 13 (g) A person's privilege to use a city park or any facility therein may be suspended by city law 14 enforcement or director of leisure services for fees that are past due more than 120 days and which 15 are imposed pursuant to this article or pursuant to a citation imposed for violating the provisions 16 of this article. However, any suspension imposed under this subsection shall immediately expire 17 at such time the fees are paid. 18 (h) Any suspension order issued in accordance with this section shall be in writing and shall state 19 the name and address of the person who is subject to the suspension, the cause of the suspension, 20 the duration of the suspension including the effective and expiration date of the suspension, and 21 the city parks or any facility subject to the suspension. The order shall also state that the person 22 shall have the right to appeal the suspension to the city manager by delivering written notice of 23 appeal to the city manager within three business days of the receipt of the order. The notice of the 24 appeal shall state the grounds for the appeal. The city manager shall set the time and place for 25 hearing such appeal, and notice of the time and place shall be given at least five calendar days 26 prior to the date set for the hearing. The hearing shall occur no later than ten days after the date 27 the appeal notice is received by the city. Failure to timely file an appeal of a suspension order shall 28 constitute a waiver of the person's right to an appeal and the order shall be deemed final. 29 (i) The city manager shall adopt rules and procedures for conducting a fair and impartial hearing 30 to determine compliance with the provisions of this section. All decisions of the city manager 31 under this section shall be deemed final and shall be subject to appeal to a court of competent 32 jurisdiction. 33 (j) When a suspension may be ordered up to a maximum number of days under this section, the 34 city shall consider the following factors when determining the length of the suspension: (1) the 35 gravity of the violation; (2) the potential or actual harm or danger the violation had or caused on 36 other patrons or facilities of the city park; and (3) any mitigating circumstances. 37 Sec. 78-195. - Special magistrate or code enforcement board authority and violation liability. 38 (a) The city special magistrate or code enforcement board shall have jurisdiction and authority to 39 hear and decide alleged violations occurring in the corporate limits of the city and when warranted City of Cape Canaveral Ordinance No. 11-2019 Page 28 of 33 1 levy penalties. Proceedings before the special mai istrate or code enforcement board shall be 2 governed by its rules and procedures. 3 (b) Any person or customer found guilty of violating any of the provisions of this article or any 4 written order of the city pursuant thereto, shall pay all penalties, costs and expenses involved in 5 the case, including reasonable attorney's fees. Notice of such violation shall be given by delivering 6 the same to the premises and a copy thereof sent by certified mail to the billing address. Each day 7 upon which a violation of this article occurs shall constitute a separate and additional violation. 8 (c) Any person or customer in violation of any provision of this article shall become liable to the 9 city for any expense, loss or damage incurred by the city by reason of such violation, including 10 reasonable attorney's fees and costs of correcting the unauthorized work, tampering or damage to 11 the system. 12 (d) In addition to any penalty provided by law for the violation of any provision of this article, the 13 city may bring suit in the appropriate court to enjoin, restrain or otherwise prevent the violation. 14 Sec. 78-413. - Enforcement. 15 The special magistrate or code enforcement board shall have jurisdiction to hear and decide alleged 16 violations of this division. Each day of violation shall constitute a separate violation. 17 Sec. 82-14. - Permit intent. 18 A permit issued shall be construed to be a license to proceed with the work and not as authority to 19 violate, cancel, alter or set aside any of the provisions of the technical codes, nor shall issuance of 20 a permit prevent the building official from thereafter requiring a correction of errors in plans, 21 construction, or violations of this code. Every permit issued shall become invalid unless the work 22 authorized by such permit is commenced within six months after its issuance, or if the work 23 authorized by such permit is suspended or abandoned for a period of six months after the time 24 work is commenced. The permit shall become invalid after three years from the date of its issuance 25 in zoning districts of the city, unless the building or buildings subject to the permit have exteriors 26 and landscaping which are in substantial compliance with the plans and specifications and comply 27 with the provisions of section 34-96, section 34-97, subsections 34-98(3)—(9), and (11), section 28 34-99, and section 34-122 of the City Code of Ordinances. Extensions of time for building permits 29 may be granted only by the city council. Further, any unfinished buildings or structures for which 30 a permit has lapsed or otherwise become invalid, and where the appearance and other conditions 31 of such unfinished building or structure substantially detracts from the appearance of the 32 immediate neighborhood, or reduces the value of property in the immediate neighborhood, or is a 33 nuisance shall be deemed to be a violation of the above referenced code sections, which violation 34 may be enforced by the special magistrate or code enforcement board. 35 Sec. 82-56. - Standard Unsafe Building Abatement Code adopted. 36 The Standard Unsafe Building Abatement Code, 1985 edition, as published by the Southern 37 Building Code Congress International, Inc., is hereby adopted by reference and incorporated herein 38 as if fully set. The Standard Unsafe Building Abatement Code is hereby amended to read as 39 follows: City of Cape Canaveral Ordinance No. 11-2019 Page 29 of 33 1 (a) Section 105.1. The special magistrate or code enforcement board shall serve as the board of 2 adjustment and appeals for this code. 3 (b) Section 605. Cost of repair or demolition; lien on property: collection. 1. Upon repair or 4 demolition of any building or structure, either with city crews or by independent contractor, all 5 costs of demolition and/or repair shall be assessed against and constitute a lien on the property 6 upon which the building or structure is/was situated. The lien shall be equal in rank, priority and 7 dignity with the lien of Brevard County ad valorem taxes and shall be superior to all other liens, 8 encumbrances, titles and claims in, to or against the property. Cost shall include, but not limited 9 to, administrative cost, attorney's fees, postage, newspaper publication fees and actual costs of 10 physical removal and/or repair. 2. The city clerk shall file such lien in the public records of Brevard 11 County Florida, showing the nature of the lien, the amount thereof, a legal description of the 12 property and the owner thereof. Such liens shall bear interest from the date of filing at the highest 13 rate allowed by law. 3. The lien may be enforced in the same manner as a court judgment by the 14 sheriffs of the State of Florida, including levy against personal property, and may also be 15 foreclosed in the nature of a mortgage. All costs and attorney's fees incurred in collection of 16 amounts due under any such lien shall also be secured by the property and included within the total 17 sum due under the lien. 18 Sec. 82-382. - Correction of violation; payment of penalty; notice of hearing. 19 Upon receipt of a citation, the person charged with the violation shall elect either to: 20 (a) Correct the violation and pay to the city the civil penalty in the manner indicated on the citation 21 or, (b) Within ten days of receipt of the citation, exclusive of weekends and legal holidays, request 22 an administrative hearing before the city's special magistrate or code enforcement board to appeal 23 the issuance of the citation in accordance with the procedures set forth in this article. Any request 24 for an administrative hearing shall be made and delivered in writing to the city manager by the 25 time set forth in this subsection. Failure to request an administrative hearing in writing within the 26 ten-day time period shall constitute a waiver of the violator's right to an administrative hearing. A 27 waiver of said right shall be deemed an admission of the violation, and penalties shall be imposed 28 as set forth on the citation. 29 Sec. 82-383. - Administrative hearings; accrual of penalties. 30 (a) All administrative hearings held pursuant to this article shall be conducted by the special 31 magistrate or code enforcement board in accordance with Chapter 2, Article VI of the City Code 32 and the requirements of the Local Government Code Enforcement Boards Act. 33 (b) During the administrative hearing, if the violator demonstrates to the special magistrate or code 34 enforcement board that the violation is invalid or that the violation has been corrected prior to 35 appearing before the special magistrate or code enforcement board, the special magistrate or code 36 enforcement board may dismiss the citation unless the violation is irreparable or irreversible, in 37 which case the special magistrate or code enforcement board may order the violator to pay a civil 38 penalty as set forth in subsection (c) below. 39 (c) During the administrative hearing, if the special magistrate or code enforcement board finds 40 that a violation exists, the special magistrate or code enforcement board may order the violator to City of Cape Canaveral Ordinance No. 11-2019 Page 30 of 33 1 pay a civil penalty of not less than the amount set forth on the citation but not more than $1,000.00 2 per day for each violation. In determining the amount of the penalty, the special magistrate or code 3 enforcement board shall consider the following facts: (1) The gravity of the violation. (2) Any 4 actions taken by the violator to correct the violation. (3) Any previous violations which were 5 committed by the violator. 6 (d) During the administrative hearing, if the special magistrate or code enforcement board finds 7 that the violator had not contested or paid the civil penalty set forth in the citation within the time 8 required in this article, the special magistrate or code enforcement board shall enter an order 9 ordering the violator to pay the civil penalty set forth on the citation, and a hearing shall not be 10 necessary for the issuance of such order. 11 (e) All civil penalties imposed by the special magistrate or code enforcement board under this 12 article shall continue to accrue until the violator comes into compliance or until a judgment is 13 rendered by a court to collect or foreclose on a lien filed under this article, whichever occurs first, 14 regardless of whether or not the order of the special magistrate or code enforcement board sets 15 forth this accrual requirement. 16 Sec. 82-384. - Appeals of special magistrate or code enforcement board decisions. 17 Any person aggrieved by a final administrative order of the special magistrate or code enforcement 18 board pursuant to this article, including the city council, may appeal the order to the circuit court 19 in accordance with F.S. § 489.127(5)(j), as may be amended or renumbered from time to time by 20 the Florida Legislature. 21 Sec. 82-385. - Recording special magistrate or code enforcement board orders. 22 A certified copy of an order of the special magistrate or code enforcement board imposing a civil 23 penalty under this article may be recorded in the public records and thereafter shall constitute a 24 lien against any real or personal property owned by the violator. Such orders shall be enforced in 25 accordance with Florida law. 26 Sec. 92-14. - Enforcement and monitoring. 27 (a) Violations of this chapter may be subject to civil citation pursuant to Chapter 2, Article VI, 28 Division 3 of this Code. 29 (b) The provisions of this chapter may also be enforceable by proceedings before the City of Cape 30 Canaveral special magistrate or code enforcement board, or by suit for prohibitory or mandatory 31 injunctive relief, or by any other lawful remedy existing at law or in equity for the enforcement of 32 municipal ordinances. Funds generated by penalties imposed under this chapter shall be used by 33 the City of Cape Canaveral for the administration and enforcement of F.S. § 403.9337, and the 34 corresponding sections of this chapter, and to further water conservation and nonpoint pollution 35 prevention activities. 36 Sec. 94-62. - Abandoned and hazardous signs. 37 (a) Abandoned signs. It shall be unlawful for any permittee or owner of a sign to fail or refuse to 38 remove any sign, after ten days of the service of notice from the administrator, which advertises a City of Cape Canaveral Ordinance No. 11-2019 Page 31 of 33 1 business or product which has not been conducted or sold at the premises where the sign is located 2 for more than six consecutive months prior to the date of the notice from the administrator. If the 3 order to remove is not complied with, the administrator may remove the sign, and an assessment 4 lien, on parity with real estate taxes, may be filed against the property for the expense incurred in 5 removal of the sign. 6 (b) Hazardous signs. The administrator shall refuse to issue a permit for any sign, which will 7 constitute a hazard and a potential menace to the safety of the public, and the administrator may 8 require the removal of any sign which is not properly maintained or which is or will become unsafe 9 and constitute a hazard to the safety of the public. It shall be unlawful for any permittee or owner 10 to continue to display any sign that constitutes a hazard to the safety of the public. It shall be 11 unlawful for any permittee or owner to continue to display any sign that constitutes a hazard after 12 48 hours from the time of notice by the administrator requesting the removal of such sign, unless 13 within that time, the permittee or owner shall have filed with the administrator notice of his or her 14 intention to appeal his decision to the special magistrate or code enforcement board, or the 15 administrator has determined that exigent circumstances exist that require the immediate removal 16 of the sign in order to abate the public hazard. Any such sign displayed more than 48 hours after 17 notice to remove the sign may be removed by the city at the expense of the permittee or owner, 18 unless the matter is pending an appeal to the special magistrate or code enforcement board or 19 unless the decision of the administrator has been reversed by the special magistrate or code 20 enforcement board. 21 (c) Signs constituting traffic hazard. No sign or other advertising structure as regulated by this 22 chapter shall be erected at the intersection of any street in such a manner as to obstruct free and 23 clear vision; at any location where, because of the position, shape or color, it may interfere with, 24 obstruct the view of or be confused with any authorized traffic sign, signal or device; or which 25 makes use of any word commonly used on traffic control signs or signals. Visibility at intersections 26 shall be in accordance with the figure [found in section] 94-1. 27 Sec. 102-38. - Enforcement and penalties. 28 (a) Enforcement. The city may enforce the provisions of this division by any lawful means 29 including, but not limited to, issuing a civil citation, bringing charges before the city's code 30 enforcement board or special magistrate master, and seeking injunctive and equitable relief. For 31 purposes of determining the penalties provided under this division, the removal or death of a tree 32 in violations of this division shall be deemed irreparable or irreversible. Further, each day a 33 violation continues shall constitute a separate violation. It shall also be a separate violation of this 34 division for each tree removed without a permit. 35 Section 4. Abolishment of Code Enforcement Board. The City of Cape Canaveral Code 36 Enforcement Board shall be abolished upon the effective date of this Ordinance, subject to 37 reinstatement by the City Council pursuant to Section 2-256, City Code. 38 39 Section 5. Transfer of Pending Cases. All cases pending before the City of Cape Canaveral 40 Code Enforcement Board on the effective date of this ordinance shall be transferred to the special 41 magistrate(s) designated by this ordinance. 42 City of Cape Canaveral Ordinance No. 11-2019 Page 32 of 33 1 Section 6. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior 2 inconsistent ordinances and resolutions adopted by the City Council, or parts of prior ordinances 3 and resolutions in conflict herewith, are hereby repealed to the extent of the conflict. 4 5 Section 7. Incorporation Into Code. This Ordinance shall be incorporated into the Cape 6 Canaveral City Code and any section or paragraph, number or letter and any heading may be 7 changed or modified as necessary to effectuate the foregoing. Grammatical, typographical and 8 like errors may be corrected and additions, alterations, and omissions, not affecting the 9 construction or meaning of this Ordinance and the City Code may be freely made. 10 11 Section 8. Severability. If any section, subsection, sentence, clause, phrase, word or 12 provision of this Ordinance is for any reason held invalid or unconstitutional by any court of 13 competent jurisdiction, whether for substantive, procedural or any other reason, such portion shall 14 be deemed a separate, distinct and independent provision, and such holding shall not affect the 15 validity of the remaining portions of this Ordinance. 16 17 Section 9. Effective Date. Upon adoption, this Ordinance shall become effective at such 18 time that the City Council appoints the initial special magistrate to handle code enforcement cases. 19 20 ADOPTED by the City Council of the City of Cape Canaveral, Florida, this day 21 of , 2019. 22 23 24 Bob Hoog, Mayor 25 26 ATTEST: For Against 27 28 Mike Brown 29 30 Mia Goforth, CMC Robert Hoog 31 City Clerk 32 Wes Morrison 33 34 Rocky Randels 35 First Reading: May 21, 2019 36 Advertisement: Angela Raymond 37 Second Reading: 38 39 40 41 Approved as to legal form and sufficiency 42 for the City of Cape Canaveral only by: 43 44 45 Anthony A. Garganese, City Attorney City of Cape Canaveral Ordinance No. 11-2019 Page 33 of 33 [City Seal] City of Cape Canaveral City Council Agenda Form City Council Meeting Date: 05/21/2019 Item No. 8 Subject: Discussion on the opportunities and challenges to consider improving ocean and beach safety in the City of Cape Canaveral by funding and or drafting policy to add lifeguard services to protect the public health, safety and welfare of the community. Department: City Council Summary: The beach is statistically a high risk environment and Cape Canaveral is going through significant changes. Almost exactly two years ago, the City of Cape Canaveral and Mayor signed a Proclamation (Attachment #1) in support of National Beach Safety Week, May 22-29, 2017 for the local area promoted by our Staff, Citizens and the United States Lifesaving Association (USLA) who is a national non-profit organization dedicated to improving beach safety in America and an affiliate chapter of USLA. Their membership includes professional beach lifeguards in this area, joining lifeguards from across the country The USLA states that our waters can be a wonderful recreational resource, but they can also be treacherous. They went on to say that lifeguards may be provided to reduce the number of accidents on our beaches, but that cannot do the job alone. An informed public is essential to maintaining adequate levels of beach and water safety. The objective of National Beach Safety Week is to make citizens aware of the need to be safe while in and near the water with particular emphasis on the hazards associated with Rip Currents. This objective stresses the following: • Learn to Swim. • Swim Near a Lifeguard. • Swim with a Buddy. • Check with the Lifeguards. • Use Sunscreen and Drink Water. • Obey Posted Signs and Flags. • Keep the Beach and Water Clean. • Learn Rip Current Safety. • Enter Water Feet First. • Wear a Life Jacket. The dependence on Lifeguards above assumes accessibility in the area which is challenging in between the long stretches of unsupervised beach between the existing Lifeguard Stations. Growing attendance with holidays, rocket launches and pleasant weather will continue to reduce the Lifeguard coverage ratio leaving residents and visitors at risk as shown in the USLA Statistics (Attachment #2) from their website. According to the report from the Centers for Disease Control and Prevention (CDC) website (www.cdc. ov), from 2005-2014, there was an average of 3,536 fatal unintentional drownings City Council Meeting Date: 05/21/2019 Item No. 8 Page 2 of 5 (non -boating related) annually in the United States about 10 deaths per day. An additional 332 people died each year from drowning in boating -related incidents. Of these, two will be children aged 14 or younger. Drowning is the fifth leading cause of unintentional injury death for people of all ages, and the second leading cause of injury death for children ages 1 to 14 years. Males are far more likely to drown than females, and between 1999-2010, the fatal unintentional drowning rate for African Americans was significantly higher than that of whites across all ages. Many drownings occur in open water such as our local ocean, pools, ponds, canals, and lagoon. Many organizations, including the CDC, routinely respond to inquiries regarding the efficacy of lifeguards in preventing drownings. Consider the following additional statistics: • About one in five people who die from drowning are children 14 and younger. For every child who dies from drowning, another five receive emergency department care for nonfatal submersion injuries. • More than 50% of drowning victims treated in emergency departments (EDs) require hospitalization or transfer for further care (compared with a hospitalization rate of about 6% for all unintentional injuries). These nonfatal drowning injuries can cause severe brain damage that may result in long-term disabilities such as memory problems, learning disabilities, and permanent loss of basic functioning (e.g., permanent vegetative state) • Children ages 1 to 4 have the highest drowning rates. In 2014, among children 1 to 4 years old who died from an unintentional injury, one-third died from drowning. Among children ages 1 to 4, most drownings occur in home swimming pools. Drowning is responsible for more deaths among children 1-4 than any other cause except congenital anomalies (birth defects). The City of Cape Canaveral and neighboring local government officials face decisions about whether to begin, retain, or discontinue lifeguarding services. Understanding the long history of Cape Canaveral's support for lifeguards and the decisions to discontinue the services are important factors to determine whether lifeguards are genuinely useful in preventing drowning and other aquatic mishaps to improve public safety. More importantly, determining whether the value of providing lifeguard protection outweighs the costs should also be considered since the City has reduced/eliminated the investment and presence of lifeguards on the beaches since the last proposed contract (See Attachment #3) to approve lifeguard services referenced in the Agenda Packet dated 03-16-2010. The recommendation to not support the agreement for lifeguard services (Attachment #4) in the following year can be found in the Agenda Packet 03-15-2011. We could compare the changes Cape Canaveral has experienced since that decision was made. City Council Meeting Date: 05/21/2019 Item No. 8 Page 3 of 5 With almost a decade of reduced lifeguard safety coverage areas on our beaches matched with the potential surge of visitors due to the addition of new hotels brings challenges. However, it also brings a an excellent time and opportunity to reconsider the general safety of our residents/visitors traveling our beaches to receive lifeguard safety services. In an effort to "be proactive, not reactive" we could consider that most drownings are preventable according to the CDC and USLA through a variety of strategies, one of which is to provide lifeguards in public areas where people are known to swim and to encourage people to swim in those protected areas. Some estimates indicate that the chance of drowning at a beach protected by lifeguards can be less than one in 18 million. The local contracted Cape Canaveral Volunteer Fire Department Chief, Assistant Chief, residents, USLA and CDC affirm that trained, professional lifeguards have had a positive effect on drowning prevention in the United States. The significance of patron surveillance and supervision that lifeguards provide is emphasized by understanding how people drown. Many people assume that drowning persons are easy to identify because they exhibit apparent signs of distress. Instead, people tend to drown quietly and quickly with instances (according to CCVFD) occurring where the untrained rescuer is the one who actually drowns. Due to this challenge of spotting a drowning person and preventing other accidents at the beach the dependence on untrained beach visitors to use alternative methods such as signs and stationed flotation devices previously supported (See Attachment #5) may help. However, adding these without lifeguards may fall short of the high level of safety amenities desired in our widely supported Vision Statement which describes an "..a livable, attractive, safe, inclusive and sustainable coastal community that embraces the oceanside and riverside as the main amenities, and supports and promotes local tourism, culture, recreation, commerce, municipal civic interests and education." The CDC state that children and adults are rarely able to call out or wave their arms when they are in distress in the water, and can submerge in 20-60 seconds. For these reasons, the CDC advises that managers should never assign lifeguards duties that distract them from keeping an eye on the water, such as selling admission tickets or refreshments. Also, the presence of lifeguards may deter behaviors that could put swimmers at risk for drowning, such as horseplay or venturing into rough or deep water, much like increased police presence can deter crime. According to an additional report from the CDC (See Attachment #6) "Lifeguard Effectiveness" the decision to protect the public in our ocean and beach, either by providing lifeguards or using another preventive strategy such as signage, requires careful assessment of the alternatives available to the City and overlapping jurisdiction. The report offered some suggestions about how decision makers such as our City Council, CC Volunteer Fire Depaittnent, and Staff might approach such a choice and frame the alternatives. In addition to these factors, we understand that staff, local advocates may be conducting similar City Council Meeting Date: 05/21/2019 Item No. 8 Page 4 of 5 research which will be needed to make the best decision for our community. To assist in evaluating the need for providing lifeguards, we may consider requesting staff to research these steps (if not already available) so that we can use available the best local evidence to support our decisions. Evidence to consider may include, but not limited to the following: • the effects that lifeguards have had on patrons' safety and attitudes; • the number of people using the beach area during the past years; • the incidence of water -related injuries/drownings at the beach during time periods; • data on the number of water -related injuries/drownings at our nearby beaches or state with and without lifeguards, for comparison; and • the level of lifeguards provided (e.g., the number of lifeguards per number of persons using the facility). We may also seriously consider the public attitudes from our citizens about lifeguards and legal issues from our City Attorney related to using lifeguards. The perception amongst the public may reveal both strong support and opposition to Lifeguards like we have seen with the floatation safety device stations. Neighboring lifeguard supported communities can bring a tremendous amount of value to consider as well as the expected impact on our Contracted Service Providers, City Manager and Staff who would bear the additional responsibility. However, we should also compare other areas of the budget that are receiving priority funding before making a decision to not move forward based on economics. The 2018/2019 Lifeguard Services Budget is provided (Attachment #7) by the Cape Canaveral Fire Chief and Assistant Fire Chief as resource to consider the costs of their recommended "all or nothing approach" which involves full time services as they provide to Port Canaveral Jetty Park. Submitting Council Member: Wes Morrison Date: 5/9/2019 Recommendation to Mayor & City Council Members: Direct City Manager to obtain and report back to the Mayor & City Council an opportunity to consider executing an Agreement with Brevard County, Cape Canaveral Volunteer Fire Department and or any other agencies/methods based on local evidence (bulleted above) to improve beach safety by investing in lifeguard services. Attachment(s): (1) Proclamation 2017 -Beach Safety Week (2) USLA Statistics -Website (3) Lifeguards -Agenda Packet 03-16-2010 (4) Lifeguards -Agenda Packet 03-15-2011 City Council Meeting Date: 05/21/2019 Item No. 8 Page 5 of 5 (5) Lifeguards -Weekly Update 04-21-2017 (6) Lifeguard Effectiveness (7) Lifeguard Services Budget -2018 -2019 -Jetty Park Attachment (1) [CITY SEAL] OFFICIAL PROCLAMATION CITY OF CAPE CANAVERAL, FLORIDA WHEREAS, the beautiful coastal and inland beaches of Cape Canaveral represent a world-renowned recreational resource; and WHEREAS, residents and visitors alike arc drawn to these beaches by the millions each year for water and beach activities; and WHEREAS, the aquatic environment has dangers, particularly rip currents, that can be effectively managed through public awareness and vigilance of professional lifeguards and Life Rescue Stations; and WHEREAS, for reasons of public safety. an annual reminder of the joys and hazards associated with the aquatic environment are appropriate at the commencement of the busy summer beach season; and WHEREAS, City of Cape Canaveral and Brevard Cotmty residents and visitors alike must remember. Learn to Swim. Swim Near a Lifeguard, Swim Near a Life Rescue Station, Swim with a Buddy, Check with the Lifeguards, Use Sunscreen and Drink Water, Obey Posted Signs and Flags, Keep the Beach and Water Clean, Learn Rip Current Safety, Enter Water Feet First and Wear a Life Jacket NOW, THEREFORE. I. Robert Hoog, Mayor of the City of Cape Canaveral. Brevard County, Florida, do hereby proclaim the week of May 22-29.2017 as NATIONAL BEACH SAFETY WEEK in the C7rty of Cape Canaveral and urge alt residents using our beaches to espy themselves at the beach this year, while taking appropriate measures to protect themselves and their children. Signed and Sealed this 8th Day of May, 2017 [Robert E Hoog] Mayor [EMBOSSED CITY SEAL] USLA Statistics Attachment(2) (From the Website) Link: The United States Lifesaving Association annually polls its chapters for the number of rescues, drownings, and other statistical information reported by lifeguard agencies. This is not a comprehensive list of all statistics generated by all beach lifeguard agencies, but the statistics of most major agencies are included here. USLA has calculated the chance that a person will die by drowning while attending a beach protected by USLA affiliated lifeguards at 1 in 18 million (.0000055%). This is based on the last ten years of reports from USLA affiliated lifeguard agencies, comparing estimated beach attendance to the number of drowning fatalities in areas under lifeguard protection. Below you will find a link to the most recent year's statistics, as well as the ability to search by a reporting agency, a region and a year. 2013 - 2017 National Lifesaving Statistics Category 2013 2014 2015 2016 2017 Beach Attendance 342,678,903 361,946,171 367,234,717 381,465,009 385,277,104 Rescues 69,332 91,745 95,052 89,067 75,951 Preventative Actions 6,875,958 7,846,592 8,613,044 8,503,062 8,799,611 Medical Aids 329,530 339,974 337,475 344,112 546,707 Boat Rescues 3,120 4,232 3,673 2,383 2,255 Passengers 7,677 13,238 5,858 12,914 4,677 Vessel Value $101,568,881 $77,819,845 $72,622,730 $68,533,930 $38,543,775 Drowning Fatalities 115 115 109 179 148 Unguarded 92 95 96 154 131 Guarded 23 20 13 25 17 Lost And Found Persons 10,893 14,486 14,034 11,923 11,519 Public Safety Lectures 12,490 22,360 26,034 59,907 29,486 Students Attending 289,245 296,281 374,960 461,760 480,970 Reporting Agencies 130 133 141 151 149 Searching local agencies by clicking this link will provide local data on beach safety. 1.) Cape Canaveral 2.) Cape Canaveral Fire Department-Jetty Park 3.) City of Cocoa Beach Fire Rescue 4.) Brevard County Ocean Rescue Florida City of Cape Canaveral City Council Agenda Form City Council Meeting Date: 3/16/2010 Item No. 3 Attachment (3) Subject: Review and Approve 2010 ocean lifeguard agreement for $18,721.00. There was no increase in the contract & the level of service remains the same as 2009. Services commence on March 27, 2010 & terminate on October 31, 2010. Department: Parks & Recreation Summary: Services include Tyler Avenue within a portion of the beach 100 yards north & south of the tower location. The tower will staff (2) lifeguards, (1) on foot patrol & (1) in the tower. Lifeguards will be on duty weekends & holidays from 10:00 am — 5:00 pm commencing March 27, 2010 & terminating on October 31, 2010. Lifeguards will be on duty weekdays from 10:00 am — 5:00 pm commencing May 24, 2010 & terminating on August 6, 2010. Requested Council Action: Approve Agreement. Financial Impact: $18,721.00 Attachments: ✓ Supporting Documents Reviewed Agreement dated 311110 Submitting Department Head: Robert Lefever Date: 312110 Approved by City Manager: a.) Date: 3/g/70 City Council Action: [ ) Approved as Recommended [ 1 Disapproved [ ] Approved with Modifications [ l Tabled to Time Certain BOARD OF COUNTY COMMISSIONERS Brevard County Fire Rescue Timothy J. Mills Fire Rescue Center 1040 S. Florida Ave., Rockledge, FL 32955 FLORIDA'S SPACE COAST TO: CITY OF CAPE CANAVERAL, FROM: CARRIE COTTER, SPEC AL4 ROJJECTS COORDINATOR II FIRE RESCUE DEPARTMENT SUBJ: OCEAN LIFEGUARD AGREEMENT DATE: MARCH 1, 2010 Telephone: (321) 633-2056 Fax: (321) 633-2057 Attached please find for execution by the City of Cape Canaveral the Ocean Lifeguard Agreement between the City of Cape Canaveral and the Board of County Commissioners of Brevard County. Upon the City Manager's signature please return the Agreement to me at the following address: Carrie Cotter, Special Projects Coordinator II Brevard County Fire Rescue 1040 S. Florida Avenue Rockledge, FL 32955 If you have any questions, please feel free to contact me at 633-2056. :CC Attachment: A/S PRINTED ON RECYCLED PAPER AGREEMENT THIS AGREEMENT, made and entered into this day of 2010, by and between the CITY OF CAPE CANAVERAL, FLORIDA, a municipal corporation existing under the laws of the State of Florida, hereinafter referred to as "City" and the BOARD OF COUNTY COMMISSIONERS OF BREVARD COUNTY, FLORIDA, a political subdivision of the State of Florida, hereinafter referred to as "County". WITNESSETH: WHEREAS, the City is desirous of obtaining the services of the County in providing qualified personnel for lifeguards at designated recreation facilities; and WHEREAS, the provision of such services by the County will mutually benefit the parties hereto and the residents of Brevard County, Florida; and WHEREAS, the County may provide parks, preserves, recreation areas, and other recreational facilities as well as ambulance service and health and welfare programs pursuant to the provisions of Section 125.01(1)(e), (f), Florida Statutes. NOW, THEREFORE, in consideration of the covenants herein contained, it is mutually agreed between the parties as follows: 1. TERM: The term of this Agreement is for the period commencing March 27, 2010 (1o:oo a.m.) and terminating October 31, 2010 (5:00 p.m.). The County hereby agrees to follow USLA (United States Lifesaving Association) guidelines and provide First Responder Certified lifeguard services for that portion of the City of Cape Canaveral as described in Section 3 for the period commencing March 27, 2010 (io:oo a.m.), and terminating October31, 2010 (5:00 p.m.). 2. PAYMENT: For the 2010 services outlined herein, the City shall pay to the County Eighteen Thousand Seven Hundred Twenty One Dollars ($18,721.00). Such payments are payable in five (5) monthly payments of Three Thousand One Hundred Twenty Dollars and Seventeen Cents ($3,120.17) and one (1) payment of Three Thousand One Hundred Twenty Dollars and Fifteen Cents ($3,12o.15, due on the last day of each month. The first payment is due on April 30, 2010, and the final payment is due on September 3o, 2010. The City will receive a monthly invoice from Brevard County Fire Rescue 3o days prior to the due date. Please remit all payments to: Brevard County Fire Rescue, ATTN: Finance, 1040 So. Florida Ave., Rockledge, FL 32955 3. SERVICES: A. The County agrees to provide all personnel and equipment, as provided below, and First Responder Certified lifeguard services between the hours of 10:00 a.m. and 5:00 p.m., or at such other times mutually agreed to in writing signed by both parties within the following area: 1. Tyler Avenue within a portion of the beach 10o yards north and south of one (i) staffed tower in this location. B. The above referenced area will have one (i) staffed tower (two (2) lifeguards). C. Year 2010, said personnel shall be on duty weekends and holidays from 10:00 a.m. until 5:00 p.m. for the period commencing March 27, 2010 (10:oo a.m.) and ending October 31, 2010 (5:00 p.m.), on the weekdays from io:oo a.m. until 5:00 p.m. beginning May 24, 2010 at 10:00 a.m., and ending August 6, 2010 5:00 p.m. D. The parties hereby mutually agree and understand that in the event of inclement weather or any other incident or occurrence which, in the sole discretion of the County, requires the closing of all or part of said beach for the protection of the public, the County may discontinue all or part of its lifeguard services in the affected areas for the duration of such condition, incident or occurrence. The County hereby agrees to cooperate fully with the City in all matters relating to the safety of said beach and the performance of the services herein set forth. The City and the County mutually agree that the County will provide radios and training to insure that the lifeguards have the capacity to contact Brevard County Dispatch. Response by lifeguards to emergencies occurring at adjacent beaches will be in accordance with procedures established by the county. E. The parties agree and understand that in the event of a water related incident, the Brevard County Lifeguard Division personnel will maintain command/control of the scene until the victim(s) is removed from the water. After the victim(s) is removed from the water, the incident command/control of the scene will transfer to the law enforcement agency with jurisdiction of the location of the scene and/or Fire/Rescue. If the victim(s) has been removed from the water, but the law enforcement 2 agency or Fire Rescue has not yet arrived on scene, then the Lifeguard Division will continue to maintain incident command/control of the scene until law enforcement or Fire/Rescue arrives. 4. LIABILITY AND INSURANCE: A. Neither party hereto, nor its respective officers, employees, or agents shall assume any liability for the acts, omissions, or negligence of the other party, or the other party's officers, employees or agents. B. The parties further agree that nothing contained herein shall be construed or interpreted as a waiver of sovereign immunity or statutory [imitations of liability under Section 768.28, Florida Statutes by either party. C. Each party shall acquire and maintain throughout the term of the Agreement such liability insurance as required to respond to their obligations under this Agreement and Section 768.28, Florida Statutes. 5. ASSIGNMENTS: Neither the city nor the County, its assigns or representatives, shall enter into any agreement with third parties to delegate any or all of the rights or responsibilities herein set forth without the prior written approval of the other party. 6. AUDITING, RECORDS AND INSPECTIONS: In the performance of this Agreement, the City shall keep books, records, and accounts of all activities, related to the Agreement, in compliance with generally accepted accounting procedures. Books, records, and accounts related to the performance of this Agreement shall be open to inspection during regular business hours by an authorized representative of the office and shall be retained by the City for a period of three (3) years after termination of this Agreement. All books, records, and accounts related to the performance of this Agreement shall be subject to the applicable provisions of the Florida Public Records Act, Chapter 119, Florida Statutes. No reports, data, programs or other materials produced, in whole or in part for the benefit and use of the County, under this Agreement shall be subject to copyright by the City in the United States or any other country. All records or documents created by the City or provided to the City by the County in connection with the activities or services provided by the County under the terms of this agreement, are public records and the City aggress to comply with any request for such public records or documents made in accordance with section 119.07 Florida Statutes. 3 7. JURISDICTION, VENUE AND CHOICE OF LAW: All questions pertaining to the validity and interpretations of this Agreement shall be determined in accordance with the laws of the State of Florida. Any legal action by either party against the other concerning this Agreement shall be filed in Brevard County, Florida which shall be deemed proper jurisdiction and venue for the action. 8. ENTIRE AGREEMENT: This Agreement, including the exhibits, riders, and/or addenda, if any, attached hereto, sets forth the entire Agreement between the parties. This Agreement shall not be modified except in writing and executed by all parties. 9. TERMINATION: Violation of any material provisions of this Agreement shall result in its termination upon 3o days written notice thereof to the breaching party. Upon termination of this Agreement, the balance owed the County shall be prorated, due and payable within fifteen (15) days of receipt of same by the City. 10. NOTICE: Notice under this Agreement shall be given to the County by delivering written notice to the Office of the County Manager, 2725 Judge Fran Jamieson Way, Building C, Melbourne, Florida 3294o, and notice shall be given to the City by delivering written notice to the City Manager, City of Cape Canaveral, Municipal Building,105 Polk Avenue, Cape Canaveral, Florida 32920. T1. ATTORNEY'S FEES AND COSTS: In the event either party initiates legal action to enforce this contract, each party shall bear its own fees and costs, and any trial shall be non -jury. 4 IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals on the day and year first above written. WITNESSES: By: By: BREVARD COUNTY, FLORIDA Howard Tipton, Cou j r r ager Reviewed for legal form and co 1 CITY OF CAPE CANAVERAL, FLORIDA Angie Apperson, City Manager 5 City of Cape Canaveral City Council Agenda Form City Council Meeting Date: 3/15/11 Item No. Attachment (4) Subject: Ocean Lifeguard Agreement between Board of County Commissioners of Brevard County and City of Cape Canaveral (2011) Department: Parks & Recreation Summary: A brief summary of the key aspects of the Agreement follows: (1) The Agreement is for the period commencing 10:00 am, March 26, 2011 through 5:00 pm, October 31, 2011. (2) The services cost is $18,721 payable in five monthly payments. (3) The County will provide two lifeguards and equipment during the established hours of 10:00 am and 5:00 pm for the Tyler Avenue area, 100 yards north and south of the staffed tower location. Personnel will be on duty weekends and holidays from 10:00 am until 5:00 pm for the March 26, 2011 through October 31, 2011 time period and on weekdays from 10:00 am until 5:00 pm from May 24, 2011 through the day before Brevard County Public Schools resume the 2011/2012 school year 5:00 pm. Thus, the area is provided lifeguard coverage on weekends for 4.5 months and seven days per week for 2.5 months. This is subject to weather and other incidents/occurrences, which the County in its sole discretion may choose to close the beach. In the event of a water related incident, the County will maintain incident command/control until the victim(s) is removed from the water. If the victim is removed from the water, the County will maintain incident command/control of the scene until law enforcement or Fire Rescue arrives. (4) Liability/Insurance — Neither party nor its officers, employees or agents shall assume any liability for the acts, omissions or negligence of the other party. The parties agree that nothing contained in the Agreement is construed or interpreted as a waiver of Sovereign Immunity or statutory limitations under Section 768.28 Florida Statutes. Each party shall acquire and maintain such liability insurance as required to respond to its obligations under the Agreement and Section 768.28 Florida Statutes. (5) Neither the City nor County shall enter into any agreement with third parties to delegate any or all of the rights/responsibilities under the Agreement without prior written approval of the other party. (6) Books, records and accounts related to performance under the Agreement shall be kept open to inspection during regular business hours and retained by the City for a period of three years after its termination and are subject to the applicable provisions of the Florida Public Records Act, Chapter 119, and Florida Statutes. (7) Any legal action by either party against the other shall be determined in accordance with the laws of the State of Florida with venue in Brevard County. (8) The Agreement including exhibits, riders and/or addenda, if any, attached hereto sets forth the entire Agreement between the parties. The Agreement shall not be modified except in writing and executed by all parties. (9) In the event of a violation of any material provision of the Agreement, the non - breaching party may terminate the Agreement upon 30 days written notice to the breaching party and opportunity to cure. Upon termination, the balance owed the County shall be prorated, due and payable within (15) days of termination. (10) Notice under the Agreement shall be given to the County by written notice to the County Manager and to the City by written notice to the City Manager. (11) In the event either party initiates legal action to enforce this, each party shall bear its own fees and costs; trial shall be non jury. Of the 15 beach -end streets in the City, Tyler Avenue is the only one with a protected beach. The City has 1,578 yards of unprotected beach. This location is among the least populated beaches in Brevard County and has limited parking and no showers or restrooms. The Ocean Lifeguard Agreement provides coverage 100 yards north and south of Tyler Avenue. On a 12 month basis, lifeguard services are provided 2.5 months, seven days per week and 4.5 months on weekends. This leaves five months of unprotected beaches and 4.5 months that are protected only on weekends. Generally, Brevard County provides Lifeguard Towers at locations with adequate parking, showers and restrooms, but there are some locations that remain unprotected. The Recreation Department does not recommend entering into the Ocean Lifeguard Agreement for 2011 based on the diminished population served and the difficult economic times. It would be appropriate for the City to encourage all Tyler Avenue beach goers to use Cherie Down Park if they wish to swim at a protected beach. Cape Canaveral beaches will still be monitored by a roving lifeguard on an ATV from the Cocoa Beach Pier to Cherie Down Park, at no expense to the City. The City would save $18,721. Submitting Department Head: Robert Lefever ,e Date: 3/2/11 Attachment(s): Ocean Lifeguard Agreement Financial Impact: If City Council accepts Staffs recommendation, the savings to the City will be $18,721. Reviewed by City Treasurer: Andrea Bowers Date: 3/4111 The City Manager recommends that City Council take the following action(s): That the City Council not enter into the Ocean Lifeguard Agreement with the Board of County Commissioners of Brevard County for 2011. Approved by City Manager: David L. Greene £ Date: 3/1/(ff City Council Action: [ ] Approved as Recommended [ ] Disapproved [ ] Approved with Modifications [ ] Tabled to Time Certain award - County Eire Rescue Timothy 3. Mills Fire Rescue Center 1040 S. Florida Avenue Rockledge, Florida 32955 February 16, 2011 David L. Greene, City Manager City of Cape Canaveral Post Office Box 326 Cape Canaveral, Florida 32920 Dear Mr. Greene: Phone — (321) 633-2056 Fax — (321) 633-2057 Enclosed please find for execution by the City of Cape Canaveral the Ocean Lifeguard Agreement between the City of Cape Canaveral and the Board of County Commissioners of Brevard County. Upon your signature please return the Agreement to me at the following address: Carrie Cotter, Special Projects Coordinator II Brevard County Fire Rescue 1040 S. Florida Avenue Rockledge, FL 32955 If you have any questions, please feel free to contact me at (321) 633-2056. Sincerely, 0c Carrie Cotter Brevard County Fire Rescue :cc Enclosure (1) AGREEMENT THIS AGREEMENT made and entered into this day of , 2011, by and between the CITY OF CAPE CANAVERAL, FLORIDA, a municipal corporation existing under the laws of the State of Florida, hereinafter referred to as "City" and the BOARD OF COUNTY COMMISSIONERS OF BREVARD COUNTY, FLORIDA, a political subdivision of the State of Florida, hereinafter referred to as "County". WITNESSETH: WHEREAS, the City is desirous of obtaining the services of the County in providing qualified personnel for lifeguards at designated recreation facilities; and WHEREAS, the provision of such services by the County will mutually benefit the parties hereto and the residents of Brevard County, Florida; and WHEREAS, the County may provide parks, preserves, recreation areas, and other recreational facilities as well as ambulance service and health and welfare programs pursuant to the provisions of Section 125.01(1)(b), (f), Florida Statutes. NOW, THEREFORE, in consideration of the covenants herein contained, it is mutually agreed between the parties as follows: 1. TERM: The term of this Agreement is for the period commencing March 26, 2011 (10:00 a.m.) and terminating October 31, 2011 (5:00 p.m.). The County hereby agrees to follow USLA (United States Lifesaving Association) guidelines and provide First Responder Certified lifeguard services for that portion of the City of Cape Canaveral as described in Section 3 for the period commencing March 26, 2011 (10:oo a.m.), and terminating October 31, 2011 (5:00 p.m.). 2. PAYMENT: For the 2011 services outlined herein, the City shall pay to the County Eighteen Thousand Seven Hundred Twenty One Dollars ($18,721.00). Such payments are payable in five (5) monthly payments of Three Thousand One Hundred Twenty Dollars and Seventeen Cents ($3,12o.17) and one (1) payment of Three Thousand One Hundred Twenty Dollars and Fifteen Cents ($3,12o.15), due on the last day of each month. The first payment is due on April 30, 2011, and the final payment is due on September 30, 2011. The City will receive a monthly invoice from Brevard County Fire Rescue 3o days prior to the due date. Please remit all payments to: Brevard County Fire Rescue, ATTN: Finance, 1040 So. Florida Ave., Rockledge, FL 32955. 3. SERVICES: A. The County agrees to provide all personnel and equipment, as provided below, and First Responder Certified lifeguard services between the hours of 10:00 a.m. and 5:00 p.m., or at such other times mutually agreed to in writing signed by both parties within the following area: 1. Tyler Avenue within a portion of the beach 100 yards north and south of one (1) staffed tower in this location. B. The above referenced area will have one (1) staffed tower (two (2) lifeguards). C. Year 2011, said personnel shall be on duty weekends and holidays from 10:00 a.m. until 5:00 p.m. for the period commencing March 26, 2011 (10:00 a.m.) and ending October 31, 2011 (5:00 p.m.), on the weekdays from io:oo a.m. until 5:00 p.m. beginning May 24, 2011 at 10:00 a.m., and ending the day before Brevard County Public Schools resume the 2011/2012 school year 5:00 p.m. D. The parties hereby mutually agree and understand that in the event of inclement weather or any other incident or occurrence which, in the sole discretion of the County, requires the closing of all or part of said beach for the protection of the public, the County may discontinue all or part of its lifeguard services in the affected areas for the duration of such condition, incident or occurrence. The County hereby agrees to cooperate fully with the City in all matters relating to the safety of said beach and the performance of the services herein set forth. The City and the County mutually agree that the County will provide radios and training to ensure 2 that the lifeguards have the capacity to contact Brevard County Dispatch. Response by lifeguards to emergencies occurring at adjacent beaches will be in accordance with procedures established by the County. E. The parties agree and understand that in the event of a water related incident, the Brevard County Lifeguard Division personnel will maintain command/control of the scene until the victim(s) is removed from the water. After the victim(s) is removed from the water, the incident command/control of the scene will transfer to the law enforcement agency with jurisdiction of the location of the scene and/or Fire/Rescue. If the victim(s) has been removed from the water, but the law enforcement agency or Fire Rescue has not yet arrived on scene, then the Lifeguard Division will continue to maintain incident command/control of the scene until law enforcement or Fire Rescue arrives. 4. LIABILITY AND INSURANCE: A. Neither party hereto, nor its respective officers, employees, or agents shall assume any liability for the acts, omissions, or negligence of the other party, or the other party's officers, employees or agents. B. The parties further agree that nothing contained herein shall be construed or interpreted as a waiver of sovereign immunity or statutory limitations of liability under Section 768.28, Florida Statutes by either party. C. Each party shall acquire and maintain throughout the term of the Agreement such liability insurance as required to respond to their obligations under this Agreement and Section 768.28, Florida Statutes. S. ASSIGNMENTS: Neither the City nor the County, its assigns or representatives, shall enter into any agreement with third parties to delegate any or all of the rights or responsibilities herein set forth without the prior written approval of the other party. 6. AUDITING, RECORDS AND INSPECTIONS: In the performance of this Agreement, the City shall keep books, records, and accounts of all activities, related to the Agreement, in compliance with generally accepted accounting procedures. Books, 3 records, and accounts related to the performance of this Agreement shall be open to inspection during regular business hours by an authorized representative of the office and shall be retained by the City for a period of three (3) years after termination of this Agreement. All books, records, and accounts related to the performance of this Agreement shall be subject to the applicable provisions of the Florida Public Records Act, Chapter 119, Florida Statutes. No reports, data, programs or other materials produced, in whole or in part for the benefit and use of the County, under this Agreement shall be subject to copyright by the City in the United States or any other country. All records or documents created by the City or provided to the City by the County in connection with the activities or services provided by the County under the terms of this agreement, are public records and the City agrees to comply with any request for such public records or documents made in accordance with Section 119.07 Florida Statutes. 7. JURISDICTION, VENUE AND CHOICE OF LAW: All questions pertaining to the validity and interpretations of this Agreement shall be determined in accordance with the laws of the State of Florida. Any legal action by either party against the other concerning this Agreement shall be filed in Brevard County, Florida which shall be deemed proper jurisdiction and venue for the action. S. ENTIRE AGREEMENT: This Agreement, including the exhibits, riders, and/or addenda, if any, attached hereto, sets forth the entire Agreement between the parties. This Agreement shall not be modified except in writing and executed by all parties. 9. TERMINATION: In the event of a violation of any material provision of this Agreement, the non -breaching party may terminate the Agreement upon 3o -day written notice to the breaching party and opportunity to cure. Upon termination of this Agreement, the balance owed the County shall be prorated, due and payable within fifteen (15) days of termination. 4 10. NOTICE: Notice under this Agreement shall be given to the County by delivering written notice to the Office of the County Manager, 2725 Judge Fran Jamieson Way, Building C, Viera, Florida 32940, and notice shall be given to the City by delivering written notice to the City Manager, City of Cape Canaveral, Municipal Building, 105 Polk Avenue, Cape Canaveral, Florida 32920. 11. ATTORNEY'S FEES AND COSTS: In the event either party initiates legal action to enforce this contract, each party shall bear its own fees and costs, and any trial shall be non -jury. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals on the day and year first above written. WITNESS: (Signature/Title) (Printed) BREVARD COUNTY, FLORIDA By: Howard N. Tipton, County Manage Reviewed for legal form and con CITY OF CAPE CANAVERAL, FLORIDA By: David L. Greene, City Manager 5 City of Cape Canaveral City Council Agenda Form City Council Meeting Date: 03/15/2011 Item No. Subject: Resolution No. 2011-04, Temporary Suspension of Permit Fees for Electronic Signs Department: Community Development Summary: On September 15, 2009 City Council adopted Ordinance 05-2009, which, among other things, substantially revised the City's sign regulations and permitted electronic signs subject to certain limitations. Given the current state of the economy, City Council desires to temporarily suspend permit fees for the construction of or conversion to electronic signs. This Resolution will temporarily suspend the permit fees required for the construction of or conversion to an electronic sign for a period of one (1) year from the effective date of this Resolution and may be extended for one (1) additional one (1) year period by majority vote of the City Council. City Council reserves the right to terminate, at any time, the one (1) year suspension period by majority vote of the City Council. The issuance of a permit shall still be required prior to the construction of or conversion to an electronic sign and all other provisions of Chapter 94 not affected by this Resolution shall remain in full force and effect. Submitting Department Head: Todd Morle Date: 03/06/11 Attachment(s): Resolution No. 2011-04Y Financial Impact: Potential loss of permit revenue. Amou aries. Reviewed by City Treasurer: Andrea Bowers Date: 3/7111 The City Manager recommends that City Council to the following action(s): Approve Resolution No. 2011-14, Temporary Suspension of Permit Fees for Electronic Signs. Approved by City Manager: David L. Greene D'y~1- Date: 3/7//f City Council Action: [ ] Approved as Recommended [ ] Disapproved [ ] Approved with Modifications [ 1 Tabled to Time Certain RESOLUTION NO. 2011-04 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, APPROVING THE TEMPORARY SUSPENSION OF PERMIT FEES IMPOSED BY SECTION 94-35 FOR ELECTRONIC SIGNS ONLY FOR A PERIOD OF ONE (1) YEAR; PROVIDING FOR ONE (1) ONE (1) YEAR EXTENSION OF THE SUSPENSION PERIOD BY A MAJORITY VOTE OF THE CITY COUNCIL; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT RESOLUTIONS, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS, the City is granted the authority under Section 2(b), Article VIII, of the State Constitution to exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, over the course of many months, the City Council and the Planning & Zoning Board comprehensively reviewed Chapter 94 of the City Code regarding the permitting and regulation of signs; and WHEREAS, on September 15, 2009, the City Council adopted Ordinance 05-2009, which, among other things, substantially revised the City's sign regulations and permitted electronic signs in the City of Cape Canaveral subject to certain limitations; and WHEREAS, given the current state of the economy, the City Council desires to temporarily suspend permit fees for the construction of or conversion to electronic signs to allow property and business owners to take advantage of the Code's electronic sign regulations and create increased awareness of local businesses; and WHEREAS, the City Council believes that temporarily suspending permit fees for electronic signs is in the best interest of the citizens and business owners of Cape Canaveral; and WHEREAS, the City Council of the City of Cape Canaveral deems that this Resolution is in the best interests of the public health, safety, and welfare of the citizens of Cape Canaveral. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, AS FOLLOWS: Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by this reference and are deemed a material part of this Resolution. City of Cape Canaveral Resolution No. 2011-04 Page 1 of 3 Section 2. Temporary Suspension of Permit Fees for Electronic Signs. The Cape Canaveral City Council hereby approves temporarily suspending the imposition of permit fees required pursuant to section 94-35 ofthe Cape Canaveral City Code for the construction of or conversion to an electronic sign for a period of one (1) year from the effective date of this Resolution. The issuance of a permit shall still be required prior to the construction of or conversion to an electronic sign, and all other provisions of Chapter 94 not affected by this Resolution shall remain in full force and effect. Section 3. Extension of Suspension Period. The one (1) year suspension period set forth in Section 2 of this Resolution may be extended for one (1) additional one (1) year period by a majority vote of the City Council at a duly held City Council meeting. Section 4. Termination of Suspension Period. Notwithstanding any other provision of this Resolution, the City Council reserves the right to terminate, at any time, the one (1) year suspension period set forth in Section 2 herein. Any such termination shall by majority vote ofthe City Council at a duly held City Council meeting. Section 5. Repeal of Prior Inconsistent Resolutions. All prior resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of the conflict. Section 6. Severability. If any section, subsection, sentence, clause, phrase, word, or portion of this Resolution is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion hereto. Section 7. Effective Date. This Resolution shall become effective immediately upon adoption by the City Council of the City of Cape Canaveral, Florida. RESOLVED by the City Council of the City of Cape Canaveral, Florida, in a regular meeting assembled on this 15th day of March, 2011. [SIGNATURE PAGE FOLLOWS] City of Cape Canaveral Resolution No. 2011-04 Page 2 of 3 ATTEST: ANGELA APPERSON, City Clerk Approved as to legal form and sufficiency for the City of Cape Canaveral only by: Anthony A. Garganese, City Attorney Rocky Randels, Mayor For Against Bob Hoog Jim Morgan Buzz Petsos Rocky Randels Betty Walsh City of Cape Canaveral Resolution No. 201 1-04 Page 3 of 3 City of Cape Canaveral City Council Agenda Form City Council Meeting Date: 03/15/2011 Item No. .5-- Subject: Award of Bid for Rehabilitation of Lift Station #2 (LS #2) located on the north side of Center Street to Danus Utilities Inc., Port Orange, Florida, in the amount of $28,311. Department: Public Works Summary: Public Works Staff received seven (7) bids for Structural Improvements and General Rehabilitation of LS #2. This Lift Station is approximately 23 years old. Over the years, Staff has been operating a "fix and repair as needed" program. In an effort to bring the City's lift stations up to standard specifications for piping, valves and check valves, Staff is implementing a Lift Station Rehabilitation Program. Rehabilitation of US # 2 includes repairing floor and base where the pump is set. The base is off center and the pump vibrates, thus causing premature pump and pipe failure. 90 degree pipe joints are deteriorated and need replacement. Connecting pipes in the valve box, check valves, shut-off valves and by-pass valves (used in emergencies) will also be replaced during rehabilitation. Staff proposes rehabilitation of one (1) Lift Station per year, beginning with the oldest (over 20 years). Lift Stations scheduled for rehabilitation include #'s 9, 7, 8, 6 and 12. Completion is within the next five (5) years. Danus Utilities, Inc., Port Orange, Florida, was the low bidder with a bid of $28,311. All received bids are summarized in Attachment #1. Work will commence fifteen (15) days after receipt of City Purchase Order. Submitting Department Head: Walter Bandish Attachment(s): 1. Summary of Bids 2. Seal Bid Specifications 3. Contract 4. Contractor Package Date: 2/8/11 Financial Impact: The Low Bidder for Rehabilitation of Lift Station #2 is Danus Utilities in the amount of $28,311. The Capital Budget for 2010/2011 sett $4 ,000 for this work. t Reviewed by City Treasurer: Andrea Bowers / Date: e" r ! 7 I I it The City Manager recommends that City Council take the following action(s): Award Bid for Rehabilitation of Lift Station #2 located on the north side of Center Street to Danus Utilities Inc., Port Orange, Florida, in the amount of $28.311. Approved by City Manager: David L. Greene Date: Al/7 f /! City Council Action: [ ] Approved as Recommended [ ] Disapproved [ ] Approved with Modifications [ 1 Tabled to Time Certain Attachments #1 City of Cape Canaveral Bid Tally Sheet-Structural Improvements and General Rehabilitation of Lift Station#2-BID#2011-01 Firm Location Bid Amount rf•;co CS3- CAr o attic-' r_nc. o .II O.O H-WreR\0414 6roOD ivc. 44 '`41, 351.0.00 14a e i% . 151. M l 1.40.40 C'R5 c Ps 33,1075.0O CPI A h/9 7a'•00 A•Han Vs;c f4'Cacafl- 3e5) SCP$.qO Structural Improvements and the General Rehab of Lift Station # 2 1 Y i Oxy s-J-{_s^,1 . . \ r. }' .: '.. '. '. - .. ., . +},P`f , r r Ins ranee 4{T' Lru UW.,3 = t - s 'ut.- l S_'A.itJ " ' Wft;-*' Y'—" ' I CJ :1Ji_i y y,, ,. * Ori G C ( t+ p,-3 .i ,,,r, , ,.a , 4 Atlantic Development of Cocoa,Inc. $35,868.40 t 5 5 30 70 C&S Technical Resources Inc. $33,675.00 15 13 .5 z-5 co `57-5- CMA Construction $49,764.00 .._. 35 Danus Utilities Inc. $28,311.00 15/ 5 5 tjo 1 d V Derrico Construction Corp. $34,917.00 10 1 5 5 5 10 7( Harrell Development Inc. $41,600.00 15 16 5 S 10 -v Hinterland Group Inc. $41,356.00 15 1 S S 5 .7.0 tao II f / A.. dad-,vce :,3 2- 2.27// Structural Improvements and the General Rehab of Lift Station # 2 i , i at. <c (C3 c54 (F31_ t t r t r- Atlantic Development of Cocoa,Inc. $35,868.40 / 2 5 0 6" s. C&S Technical Resources Inc. $33,675.00 / - / 3 5 ` c 5 .) Er-5.5 CMA Construction $49,764.00 f 5 5 r 3 / / Danus Utilities Inc. $28,311.00 / 5 ! $ 5- 9 C 0 Derrico Construction Corp. $34,917.00 /D 7 5 5 0 Harrell Development Inc. $41,600.00 / 1 .c ..5.- L I / Q L,/ f / l Hinterland Group Inc. $41,356.00 J 5 5 5 2,0 Structural Improvements and the General Rehab of Lift Station # 2 0 C7-10 Atlantic Development of Cocoa,Inc. $35,868.40 t l c 5? 0 --ZC) C&5 Technical Resources Inc. $33,675.00 .---- ? l /s ,5'' CMA Construction $49,764.00 / J . .....--•j 5 3 .5 1 Danus Utilities Inc. $28,311.00 ,/ 66 40 Derrico Construction Corp. $34,917.00 l' ,t / 0 15 s lot) Harrell Development Inc. $41,600.00 . / 9-6117 i 5 s II) Hinterland Group Inc. $41,356.00 { / 1 5 j 10 bb Attachments #2 REQUEST FOR SEALED BIDS FOR STRUCTURAL IMPROVEMENTS AND GENERAL REHABILITITATION OF LIFT STATION #2 BID # 2011-01 The City of Cape Canaveral (City) invites Licensed General Contractors in accordance with Florida Statutes to submit a sealed Bid for the completion of structural improvements and the general rehabilitation of Lift Station #2 located on Center Street. Contractors with demonstrated expertise are invited to submit a Bid. Instructions for bids may be obtained from the City of Cape Canaveral, 105 Polk Avenue, Cape Canaveral, Florida 32920 by contacting the City Clerk's office at (321) 868-1221. A mandatory pre-bid meeting will be held at the Public Works administration office located at 601 Thurm Blvd. Cape Canaveral FI 32920 on Monday, January 17, 2011 at 10:00 a.m. For directions or other information, please contact Phillip Bissett at the Public Works Department at (321) 868-1240. Bids will be accepted until 3:00 p.m. on Monday, January 24, 2011 at which time they will be publicly opened and read aloud in the City Clerk's office located at 105 Polk Avenue, Cape Canaveral, Florida. The City reserves the right to reject any or all bids or parts thereof, or to accept one or more bid(s) or parts thereof when considered to be in its best interests of the City. 105 Polk Avenue — P.O. Box 326 — Cape Canaveral, FL 32920 Telephone (321) 868-1221 — Fax (321) 799-3170 — www.mvflorida.com/cane e-mail: ccapecanaveral@cfl.rr.com t REQUEST FOR SEALED BID: Structural Improvements and the General Rehabilitation of Lift Station #2 BID #2011-01 Overview. The City of Cape Canaveral (City) invites Licensed General Contractors in accordance with Florida Statutes to submit a sealed Bid for the completion of structural improvements and the general rehabilitation of Lift Station #2 located on Center Street. Contractors with demonstrated expertise are invited to submit a Bid. Instructions for bids may be obtained from: The City of Cape Canaveral 105 Polk Avenue Cape Canaveral, Florida 32920 City Clerk's Office (321) 868-1221 A mandatory pre-bid meeting will be held at the Public Works Administration office located at 601 Thurm Blvd. Cape Canaveral FI 32920 on Monday, January 17, 2011 at 10:00 a.m. For directions or other information, please contact: Phillip Bissett Public Works Department Supervisor Cape Canaveral Public Works (321) 868-1240 fax (321-868-1233). Bids will be accepted until 3:00 p.m. on Monday, January 24 2011 at which time they will be publicly opened and read aloud in the City Clerk's office located at 105 Polk Avenue, Cape Canaveral, Florida. The City reserves the right to reject any or all bids or parts thereof, or to accept one or more bid(s) or parts thereof when considered to be in the best interests of the City. Section 1: Scone of Services The City is soliciting bids for the completion of structural repairs and the general rehabilitation of Lift Station #2 located on Center Street. Specifically, the selected Contractor shall: • Obtain all permits and approved inspections for all aspects of the project work. • Specify all materials to be used. • Assist in the setup of City -owned bypass equipment from the wet well to the existing bypass stand pipe. • Disconnect and remove the rail system, base elbows and piping from the wet well. • Disconnect and remove all piping, valves and the drain from valve vault - remove the valve vault. • Fumish and install new 6' x 6' valve vault with 36" x 48" aluminum hatch. Pre -cast coatings to be standard bitimastic paint both interior and exterior. • Furnish and install new 6 -inch diameter piping, fittings and valves starting from the 90 degree bends in the wet well through the vault to the connection at the force main shut off bypass valve located outside the vault. • Re-establish drain in the valve vault to the wet well. • Raise floor in wet well by 6 inches with concrete. • Adjust [modify] pump stand pipes and pump guide rails to accommodate the rise in floor height. • Assist in installing and setting pumps in wet well and start-up and testing of lift station. • Remove and cap the current bypass valve connection below grade outside the valve vault. • Sod all disturbed areas. Qualified bidders shall possess proper licensure in accordance with Florida Statutes. The duration of the project shall not exceed four (4) weeks. During construction, the interior of the lift station shall remain protected from the elements. Warranty information for both materials and labor shall be included with bid proposals. Section II: Insurance Requirements Upon award, the successful bidder shall be required to obtain and furnish to the City of Cape Canaveral, prior to the contract being effective, Certificates of Insurance with the following minimum coverage: a. Workers Compensation shall be maintained for all employees engaged in the work under the Bid, in accordance with the Laws of the State of Florida. b. Employers Liability Insurance shall be maintained at limits no less than the following: $100,000 Each Accident $100,000 Disease Each Employee $500,000 Disease Aggregate c. Comprehensive General Liability Insurance shall be maintained with minimum limits not Less than the following. $1,000,000 Bodily Injury & Property Damage— each occurrence $1,000,000 Personal & Advertising Injury— each occurrence $2,000,000 General Aggregate $2,000,000 Products/Completed Operations Aggregated limit $ 5,000 Medical Payment $ 100,000 Fire Damage Legal Liability Coverage shall include contractual liability and independent contractor's liability. d. Automobile Liability Insurance shall be maintained with a combined single limit of not less than $1,000,000 Bodily Injury and Property Damage in accordance with the Laws of the State of Florida, as to the ownership, maintenance and use of all owned, non -owned, leased or hired vehicles. e. Professional Liability Insurance shall be maintained with a combined single limit of not less than $ 1,000,000 protecting the firm against claims of the City for negligence, errors, mistakes or omissions in the performance of services to be performed and furnished by the selected firm. f. Endorsement All policies are to be endorsed to include the City as insured. In the cancellation clause, the work endeavor shall be excluded and the number thirty (30) inserted in the blank space provided before the work days prior notice. All contractor policies are to be considered primary to City coverage and shall not contain co- insurance provisions. g. Contractor will guarantee that each sub -contractor possess and maintains required insurance. All insurance policies shall be with insurers with an acceptable rating, registered and licensed to do business in the State of Florida. The City will be named as an additional named insured on each policy. Section III: Other Requirements A. Bids will be accepted until 3:00 p.m. on Monday, January 24, 2011. Those received after that time will not be considered. A total of three (3) copies (one stamped as "ORIGINAL") of the Bid must be submitted and clearly marked with "Bid #2011-01 -- Structural improvements and the General Rehabilitation of Lift Station #2" and mailed or hand delivered to the City CIerk of Cape Canaveral located at City Hall. B. Delivery of bids by the following means: 1. Bids mailed shall be addressed to: City of Cape Canaveral City Clerk's Office P.O. Box 326 Cape Canaveral, FL 32920-0326 Attn: Structural Improvements and the General Rehabilitation of Lift Station #2 - Bid #2011-01. 2. Bids hand delivered to: City of Cape Canaveral City Clerk's Office 105 Polk Avenue Cape Canaveral, FL 32920-0326 Attn: Structural Improvements and the General Rehabilitation of Lift Station #2 - Bid #2011-01. C. Bids shall include the items listed below: 1. Letter of Interest; 2. Contractor's qualifications and history of perfonning the same or similar work; 3. Qualifications of any Subcontractors to be committed to the project; 4. A list of at Least (3) three similar projects completed with a brief project summary with customer's name, address, contact person, and telephone number; 5. Proof of liability/worker's comp insurance; 6. Completed copy of A Drug Free Workplace Form, included in bid package; 7. Copies of certifications and licensures; and 8. Contractor's bid sheet. Failure to execute and submit the above forms will subject your response to disqualification. Reviewing and listing of the firm's bids will be by the Public Works Director. There will not be a need for any presentations by firms. The final selection will be based on the Public Works Director's presentation to the City Council at a scheduled public meeting. The City reserves the right to withdraw this Request for Bids at any time to protect its best interests. Public information will be provided to the Contractors and the date of the scheduled public City Council meeting. DRUG-FREE WORKPLACE PROGRAM To be considered for a bid award from the City of Cape Canaveral a firm must have a Drug -Free Workplace Program in-place. In order to have a drug-free workplace program, a firm shall: 1. Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing or possession of a controlled substance is prohibited in the workplace and specifying the actions that will be taken against employees for violations of such prohibition. 2. Inform employees about the dangers of drug abuse in the workplace, the firm's policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation, and employee assistance programs, and the penalties that may be imposed upon employees for drug abuse violations. 3. Give each employee engaged in providing the commodities or contractual services that are under bid a copy of the statement specified in subsection (1) above. 4. In the statement specified in subsection (1) above, notify the employees that, as a condition of working on the commodities or contractual services that are under bid, the employee will abide by the terms of the statement and will notify the employer of any conviction of, or plea of guilty or nolo contendere to, any violation of Chapter 893 or of any controlled substance law of the United States or any state, for a violation occurring in the workplace no later than five (5) days after such conviction. 5. Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program if such is available in the employee's community, by any employee who is so convicted. 6. Make a good faith effort to continue to maintain a drug-free workplace through implementation of this section. As the person authorized to sign the statement, I certify that this firm complies fully with the above requirements. Vendor Signature Name of Company Vendor Printed Name Attachments #3 Lift Station # 2 Rehabilitation AGREEMENT THIS CONSTRUCTION AGREEMENT ("Agreement") is made this day of , 2011 between the City of Cape Canaveral, a Florida municipal corporation ("Owner"), whose address is 105 Polk Avenue, Cape Canaveral, Florida 32920, and Danus Utilities, Inc., a Florida corporation ("CONTRACTOR"), whose address is 6214 Tortoise Creek Lane, Port Orange, Florida 32128, as follows: 1. DESCRIPTION OF WORK — CONTRACTOR shall perform the Work, in accordance with the Contract Documents for the Rehabilitation of Lift Station # 2. The Work includes all labor, supplies and other facilities or things necessary to produce such construction, and all materials, equipment, and supplies incorporated or to be incorporated in such construction. 2. CONTRACT DOCUMENTS — The Contract Documents consist of this Agreement; Exhibits and any Addenda to the Agreement; Contractor's Bid Submittal, dated January 24, 2011; General Conditions, if any; Supplemental Terms and Conditions by the City, if any; and all Change Orders approved by the City after execution of this Agreement. These Contract Documents are attached hereto as "Exhibit A" and are hereby incorporated into this Contract by this reference. 3. ORDER OF PRECEDENCE — In case of any inconsistency in any of the documents bearing on the Agreement between the OWNER and the CONTRACTOR, the inconsistency shall be resolved by giving precedence in the following order: a. Agreement, Exhibits and Addenda; b. Contractor's Bid Submittal; c. Change Orders; d. Supplemental Terms and Conditions; or e. General Terms and Conditions. Any inconsistency in the Work description shall be clarified by the OWNER and performed by the CONTRACTOR. 4. AGREEMENT INTERPRETATION — At its discretion, during the course of the Work, should any errors, ambiguities, or discrepancies be found in the Agreement or specifications, the OWNER, at its sole discretion, will interpret the intent of the Agreement and Work descriptions and the CONTRACTOR hereby agrees to abide by the OWNER's interpretation and agrees to carry out the Work in accordance with the decision of the OWNER. When the material, article, or equipment is designated by a brand name and more than one brand name is listed, it will be understood that the Work is based on one brand name only. The CONTRACTOR will be responsible for all coordination necessary to accommodate the material, article, or equipment being provided without additional cost to the OWNER. A substitute material, article, or equipment is allowed if it is reasonably equivalent to the brand name specified. The OWNER shall have full discretion to decide whether a substitute is reasonably equivalent_ CONTRACTOR must notify the OWNER prior to use of the substitute for a specified brand name and allow the OWNER to make a determination before CONTRACTOR uses the substitute. 5. CONTRACT TIME — The CONTRACTOR shall begin Work no later than March 28, 2011 and shall he substantially complete (i.e., complete with only final punch list items remaining) 20 consecutive calendar days thereafter. CONTRACTOR shall fully complete the Work within 30 consecutive calendar days from March 28, 2011. Extensions, if any, may be authorized by OWNER, and may only be granted in writing. 6. LIOUIDATED DAMAGES — OWNER and CONTRACTOR recognize that time is of the essence of this Agreement and that the OWNER will suffer financial loss if the Work is not substantially complete within the time specified in Paragraph 5 above, plus any extensions thereof in accordance with the General Conditions. They also recognize the delays, expense and difficulties involved in proving in a legal or arbitration preceding the actual loss suffered by OWNER if the Work is not substantially complete on time. Accordingly, instead of requiring any such proof, CONTRACTOR shall pay OWNER $50.00 for each day that expires after the time specified in Paragraph 5 for final completion until the Work is finally complete, and that OWNER has paid to CONTRACTOR the consideration of Ten Dollars ($10.00) as consideration for this provision. 7. Fixed PRICE CONTRACT — The OWNER will pay the CONTRACTOR in current funds for the performance of the Work, subject to additions and deductions by Change Order, based upon the following fixed prices: a. $28,311.00 Structural Improvements and general Rehabilitation to Lift Station # 2 Other services provided by the CONTRACTOR, such as maintenance -of -traffic (MOT), and general cleanup. The Owner may withhold payment if: a. Work is found defective and not remedied; b. CONTRACTOR does not make prompt and proper payments to subcontractors; b. CONTRACTOR does not make prompt and proper payments for labor, materials, or equipment furnished him; c. Another CONTRACTOR is damaged by an act for which CONTRACTOR is responsible; or d. Claims or liens are filed on the job. 8. TERMINATION: DEFAULT BY CONTRACTOR AND OWNER'S REMEDIES — The OWNER reserves the right to revoke and terminate this Agreement and rescind all rights and privileges associated with this Agreement, without penalty, in the following circumstances, each of which shall represent a default and breach of this Agreement: a. CONTRACTOR defaults in the performance of any material covenant or condition of this Agreement and does not cure such default within seven (7) calendar days after written notice from the OWNER specifying the default complained of, unless, however, the nature of the default is such that it cannot, in the exercise of reasonable diligence, be remedied within seven (7) calendar days, in which case the CONTRACTOR shall have such time as is reasonably necessary to remedy the default, provided the CONTRACTOR promptly takes and diligently pursues such actions as are necessary thereafter; or b. CONTRACTOR is adjudicated bankrupt or makes any assignment for the benefit of creditors or CONTRACTOR becomes insolvent, or is unable or unwilling to pay its debts; or c. CONTRACTOR has acted negligently, as defined by general and applicable law, in performing the Work hereunder; or d. CONTRACTOR has committed any act of fraud upon the OWNER; or e. CONTRACTOR has made a material misrepresentation of fact to the OWNER while performing its obligations under this Agreement; or f. CONTRACTOR is experiencing a labor dispute, which threatens to have a substantial, adverse impact upon performance of this Agreement without prejudice to any other right, or remedy OWNER may have under this Agreement. Notwithstanding the aforementioned, in the event of a default by CONTRACTOR, the OWNER shall have the right to exercise any other remedy the OWNER may have by operation of law, without Iimitation, and without any further demand or notice. In the event of such termination, OWNER shall be liable only for the payment of all unpaid charges, determined in accordance with the provisions of this Agreement, for Work properly performed prior to the effective date of termination. 9. FORCE MAJEURE -- Any delay or failure of either party in the performance of its required obligations hereunder shall be excused if and to the extent caused by acts of God; fire; flood; windstorm; explosion; riot; war; sabotage; strikes (except involving CONTRACTOR's labor force); extraordinary breakdown of or damage to OWNER's affiliates' generating plants, their equipment, or facilities; court injunction or order; federal and/or state law or regulation; order by any regulatory agency; or cause or causes beyond the reasonable control of the party affected; provided that prompt notice of such delay is given by such party to the other and each of the parties hereunto shall be diligent in attempting to remove such cause or causes. If any circumstance of Force Majeure remains in effect for 60 days, either party may terminate this Agreement. 10. SEVERABILITY — In the event any portion or part thereof of this Agreement is deemed invalid, against public policy, void, or otherwise unenforceable by a court of law, the parties, at the sole discretion and option of the OWNER, shall negotiate an equitable adjustment in the affected provision of this Agreement. The validity and enforceability of the remaining parts of this Agreement shall otherwise be fully enforceable. 11. DESIGNATION OF PROJECT MANAGER OR ARCHITECT OR LANDSCAPE ARCHITECT: DUTIES AND AUTHORITY — The duties and authority of the OWNER are as follows: a. General Administration of Contract. The primary function of the OWNER is to provide the general administration of the contract. In performance of these duties, Phillip Bissett, Utilities Supervisor, or his authorized representative, is the OWNER's Project Manager during the entire period of construction. The OWNER (City) may change the Project Manager during the term of this contract. b. Inspections, Opinions. and Progress Reports. The OWNER shall be kept familiar with the progress and quality of the Work by CONTRACTOR and may make periodic visits to the worksite. The OWNER will not be responsible for the means of construction, or for the sequences, methods, and procedures used therein, or for the CONTRACTOR's failure to perform the Work in accordance with the Contract Documents. c. Access to Worksite for Inspections. The OWNER shall be given free access to the worksite at all times during the Work preparation and progress. The Project Manager is not obligated to make exhaustive or continuous onsite inspections to perform his duties of checking and reporting on Work progress, and any such inspections shall not waive OWNER's claim and disputes regarding defective Work by the CONTRACTOR. d. Interpretation of Contract Documents: Decisions on Disputes. The OWNER will be the initial interpreter of the contract document requirements, and make decisions on claims and disputes between CONTRACTOR and OWNER. e. Reiection and Stoppage of Work. The OWNER shall have authority to reject Work which in its opinion does not conform to the Contract Documents, and in this connection may stop the Work or a portion thereof, when necessary. Payment Certificates. The OWNER will determine the amounts owing to CONTRACTOR as the Work progresses, based on CONTRACTOR's applications and OWNER's inspections and observations, and will issue certificates for progress payments and final payments in accordance with the terms of the Contract Documents. 12. PROGRESS MEETING. OWNER's Project Manager may hold periodic progress meetings on a monthly basis, or more frequently if required by the OWNER, during the term of Work entered into under this Agreement. CONTRACTOR's Project Manager and all other appropriate personnel shall attend such meetings as designated by the OWNER' s Project Manager. 13. RESPONSIBILITIES OF CONTRACTOR. -- CONTRACTOR's duties and rights in connection with the project herein are as follows: a. Responsibility for Supervision and Construction. CONTRACTOR shall be solely responsible for all construction under this contract, including the techniques, sequences, procedures and means, for the coordination of all Work. CONTRACTOR shall supervise and direct the Work, and give it all attention necessary for such proper supervision and direction. b. Discipline and Employment. CONTRACTOR shall maintain at all times strict discipline among his employees, and he agrees not to employ for Work on the project any person unfit or without sufficient skill to perform the job for which he was employed. c. Furnishing of Labor, Materials. etc. CONTRACTOR shall provide and pay for all labor, materials, and equipment, including tools, construction equipment and machinery, utilities, including water, transportation, and all other facilities and Work necessary for the proper completion of Work on the project in accordance with the Contract Documents. d. Payment of Taxes: Procurement of Licenses and Permits. CONTRACTOR shall secure all licenses and permits necessary for proper completion of the Work, paying the fees thereof. CONTRACTOR warrants that it (and subcontractors or tradesmen, if authorized by the Contract Documents) hold or will secure all trade or professional licenses required by law for CONTRACTOR to undertake the contract Work. e. Written Guarantee. CONTRACTOR will provide written guarantee for Work and materials for one (1) calendar year after acceptance by Owner. 14. ASSIGNMENT — CONTRACTOR shall not assign or subcontract this Agreement, or any rights or any monies due or to become due hereunder without prior, written consent of the OWNER. a. If upon receiving written approval from OWNER, any part of this Agreement is subcontracted by CONTRACTOR, CONTRACTOR shall be fully responsible to OWNER for all acts and/or omissions performed by the subcontractor as if no subcontract had been made. b. If OWNER determines that any subcontractor is not performing in accordance with this Agreement, OWNER shall so notify CONTRACTOR who shall take immediate steps to remedy the situation. c. If CONTRACTOR, prior to the commencement of any Work subcontracts any part of this Agreement by the subcontractor, CONTRACTOR shall require the subcontractor to provide OWNER and its affiliates with insurance coverage as set forth by the OWNER. 15. THIRD PARTY RIGHTS -- Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than OWNER and CONTRACTOR. 16. PROHIBITION AGAINST CONTINGENT FEES — CONTRACTOR warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the CONTRACTOR, to solicit or secure this Agreement, and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for the CONTRACTOR, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. 17. NO JOINT VENTURE — Nothing herein shall be deemed to create a joint venture or principal -agent relationship between the parties and neither party is authorized to, nor shall either party act toward third persons or the public in any manner which would indicate any such relationship with the other party. 18. INDEMNIFICATION — CONTRACTOR shall indemnify and hold harmless the City, its officers, employees, and City attorneys (individually and in their official capacity, from liability, losses, damages, and costs, including, but not limited to, reasonable attorney's fees, to the extent caused by the negligence, recklessness or intentional wrongful misconduct of CONTRACTOR and person employed or utilized by CONTRACTOR in the performance of this Agreement. The indemnification provided above shall obligate the CONTRACTOR to defend at its own expense or to provide for such defense, at the option of the OWNER, as the case may be, of any and all claims of liability and all suits and actions of every name and description that may be brought against the OWNER or its officers, employees, and City attorneys which may be covered by this indemnification. In all events the OWNER and its officers, employees, and City attorneys shall be permitted to choose legal counsel of its sole choice, the fees for which shall be reasonable and subject to and included with this indemnification provided herein. 19. SAFETY — CONTRACTOR shall be solely and absolutely responsible and assume all liability for the safety and supervision of its principals, employees, contractors, and agents while performing work provided hereunder. 20. CORPORATE REPRESENTATIONS BY CONTRACTOR — CONTRACTOR hereby represents and warrants to the OWNER the following: a. CONTRACTOR is duly registered and licensed to do business in the State of Florida and is in good standing under the laws of Florida, and is duly qualified and authorized to carry on the functions and operations set forth in this Agreement. b. The undersigned signatory for CONTRACTOR has the power, authority, and the legal right to enter into and perform the obligations set forth in this Agreement and all applicable exhibits thereto, and the execution , delivery, and performance hereof by CONTRACTOR has been duly authorized by the board of directors and/or the president of CONTRACTOR. In support of said representation, CONTRACTOR agrees to provide a copy to the OWNER of a corporate certificate of good standing provided by the State of Florida prior to the execution of this Agreement. c. CONTRACTOR is duly Iicensed under all local, state and federal laws to provide the Work stated in Paragraph 1 herein. In support of said representation, CONTRACTOR agrees to provide a copy of all said licenses to the OWNER prior to the execution of this Agreement. 21. BONDS -- CONTRACTOR shall not have to supply materials, performance or payment bonds. 22. INSURANCE — During the term of this Agreement, CONTRACTOR shall be responsible for providing the types of insurance and limits of liability as set forth below. a. The CONTRACTOR shall maintain comprehensive general liability insurance in the minimum amount of $1,000,000 as the combined single limit for each occurrence to protect the CONTRACTOR from claims of property damages which may arise from any Work performed under this Agreement whether such Work is performed by the CONTRACTOR or by anyone directly employed by or contracting with the CONTRACTOR. b. The CONTRACTOR shall maintain comprehensive automobile liability insurance in the minimum amount of $1,000,000 combined single limit bodily injury and minimum $1,000,000 property damage as the combined single limit for each occurrence to protect the CONTRACTOR from claims for damages for bodily injury, including wrongful death, as well as from claims from property damage, which may arise from the ownership, use, or maintenance of owned and non -owned automobiles, including rented automobiles whether such operations be by the CONTRACTOR or by anyone directly or indirectly employed by the CONTRACTOR. c. The CONTRACTOR shall maintain, during the life of this Agreement, adequate Workers' Compensation Insurance in at least such amounts as are required by law and Employer's Liability Insurance in the minimum amount of $1,000,000 for all of its employees performing Work for the OWNER pursuant to this Agreement. Special Requirements. Current, valid insurance policies meeting the requirements herein identified shall be maintained during the term of this Agreement. A copy of a current Certificate of Insurance shall be provided to the OWNER by CONTRACTOR upon the Effective Date of this Contract which satisfies the insurance requirements of this Paragraph 22. Renewal certificates shall be sent to the OWNER 30 days prior to any expiration date. There shall also be a 30 -day advance written notification to the OWNER in the event of cancellation or modification of any stipulated insurance coverage. The OWNER shall be an additional named insured on all stipulated insurance policies as its interest may appear, from time to time, excluding workers' compensation and professional liability policies. Independent Associates and Consultants. All independent contractors or agents employed by CONTRACTOR to perform any Work hereunder shall fully comply with the insurance provisions contained in these paragraphs for Paragraph 22. 23. MEDIATION/VENUE — The parties agree that should any dispute arise between them regarding the terms or performance of this Agreement, both parties will participate in mediation. The parties agree to equally share the cost of the mediator. Should the parties fail to resolve their differences through mediation, then any cause of action hereunder shall be filed in the Circuit or County Court for Brevard County, Florida. 24. GOVERNING LAW AND VENUE - This Agreement is made and shall be interpreted, construed, governed, and enforced in accordance with the laws of the State of Florida. Venue for any state action or litigation shall be Brevard County, Florida. Venue for any federal action or litigation shall be Orlando, Florida. 25. ATTORNEY'S FEES — Should either party bring action to enforce any of the terms of this Agreement, the prevailing party shall be entitled, to the extent permitted by law, to recover from the non -prevailing party the costs and expenses of such action including, but not limited to, reasonable attorney's fees, whether at settlement, trial or appeal. 26. NOTICES — Any notice or approval under this Contract shall be sent, postage prepaid, to the applicable party at the address shown on the first page of this Contract. 27. WORK IS A PRJVATE UNDERTAKING — With regard to any and all Work performed hereunder, it is specifically understood and agreed to by and between the parties hereto that the contractual relationship between the OWNER and CONTRACTOR is such that the CONTRACTOR is an independent contractor and not an agent of the OWNER. The CONTRACTOR, its contractors, partners, agents, and their employees are independent contractors and not employees of the OWNER. Nothing in this Agreement shall be interpreted to establish any relationship other than that of an independent contractor, between the OWNER, on one hand, and the CONTRACTOR, its contractors, partners, employees, or agents, during or after the performance of the Work under this Agreement. 28. DOCUMENTS — Public Records: It is hereby specifically agreed that any record, document, computerized information and program, audio or video tape, photograph, or other writing of the CONTRACTOR and its independent contractors and associates related, directly or indirectly, to this Agreement, may be deemed to be a Public Record whether in the possession or control of the OWNER or the CONTRACTOR. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the CONTRACTOR is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the OWNER's City Manager. Upon request by the OWNER, the CONTRACTOR shall promptly supply copies of said public records to the OWNER. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during the normal working hours of the CONTRACTOR be open and freely exhibited to the OWNER for the purpose of examination and/or audit. The CONTRACTOR acknowledges that the OWNER is a Florida municipal corporation and subject to the Florida Public Records Law. CONTRACTOR agrees that to the extent any document produced by CONTRACTOR under this Agreement constitutes a Public Record; CONTRACTOR shall comply with the Florida Public Records Law. 29. SOVERIEGN IMMUNITY — Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable, under this Agreement, for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than One Hundred Thousand Dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of Two Hundred Thousand Dollars ($200,000). 30. HEADINGS -- Paragraph headings are for the convenience of the parties only and are not to be construed as part of this Agreement. 31. INTEGRATION: MODIFICATION -- The drafting, execution, and delivery of this Agreement by the parties has been induced by no representations, statements, warranties, or agreements other than those expressed herein. This Agreement embodies the entire understanding of the parties, and there are no further or other agreements or understandings, written or oral, in effect between the parties relating to the subject matter hereof unless expressly referred to herein. Modifications of this Agreement shall only be made in writing signed by both parties. 32. WAIVER AND ELECTION OF REMEDIES — Waiver by either party of any terms or provision of this Agreement shall not be considered a waiver of that term, condition, or provision in the future. No waiver, consent, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of each party hereto. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be considered an original agreement; but such counterparts shall together constitute but one and the same instrument. 33. DRAFTING — OWNER and CONTRACTOR each represent that they have both shared equally in drafting this Agreement and no party shall be favored or disfavored regarding the interpretation of this Agreement in the event of a dispute between parties. Signed, Sealed and Delivered in the presence of: CONTRACTOR: Danus Utilities, Inc. Witness: a Florida corporation Print Name: Print Name: Title: Witness: Date: Print Name: Witness: Print Name: Witness: Print Name: OWNER: City of Cape Canaveral, a Florida municipal corporation David Greene, City Manager Date: ito wingnutoninsta Follow Lsx rstenor ' 7.15-8.15 M.P.H. 2 15-315 11 cityofcapecanaveral a V 1 like wingnutoninsta w #IHeartBrevardCounty #Repost @cityofcapecanaveral with @repostapp You gotta watch for crossing surfers in #TheSpaceBetween Waves + Wonder •-•.ti It's a #CapeCanaveral thing! See you at the beach! #surfercrossing #whichwaytothebeach #capelife 14 MINUTES AGO LifeTM Rescue Project 1111111.1.10_, G SA surfsideseth Cape Canaveral, Florida Attachment (5) Fo1IsDw Liked by marcuscote.photo and 13 others surfsideseth #surfercrossing ahead thanks to @cityofcapecanaveral for looking out for us! Yeeew Looking good in da old hoodl Staff from multiple departments worked with residents of 619 Monroe Ave to reposition the Life Rescue Station to the South edge of the City ROW easement/North edge of their property. Staff collaborated with Space Coast artist Jacob McAlister to complete the first Life Rescue Station Art Pole wrap design, which was inspired by The Hitchhikers Guide to the Galaxy/Star Wars and fits nicely into the Sun, Space and Sea overall campaign theme. Staff is still looking for local artists/creators to design wraps for the Life Rescue Station Public Art poles. They can be designed in various mediums and a size board (acting as a canvas) can be provided. If you are interested in creating an art pole design, please contact i.surprenant(&,,citvofcapecanaverl.org for more information. A wheelchair beach goer using the Monroe Ave. Mobi-mat with his family Staff created an interactive map using Boondock Cities to show locations of the Life Rescue Stations on City public beaches. The map also shows locations of the Mobi-mats and the two Brevard County/Port Canaveral lifeguards (Cherie Down Park/Jetty Park). o. ,..n,.Kuu.., G, m arvue Euearrt o, :.rtquaro, ,w. c., C,wixo G, ucE• e.6 Pi.. canamor Ex* ereb aiw.rrwanson en bFuah]150+f .,pNq wwy ieMha awGh.YYs agl&mom rqn .ynn. rra•u, ay rues .payw le xwr.wm..r..tl To view the map, please follow this link http://bit.ly/2oVb3iO Life Rescue Station Letters of Concern Staff received two (2) letters of concern by Cape Canaveral residents regarding installation/use of Life Rescue Stations on the City public beach. The concerns are related to the "better that one person drowns then two" attitude and the overall appearance of the stations on the City public beach. As stated before, the Life Rescue Stations are personal flotation devices to be used in the case of an emergency to stabilize distressed swimmers before rescue by lifeguards/first responders. The City partnered with the Life Rescue project "to prevent drownings worldwide through education, awareness and rescue equipment implementation." The Phase 2 creation of the Life Rescue Station art poles creates a whimsical approach to public art and public safety. Staff has been researching similar established Life Rescue Station projects throughout the United States and the World. While researching established programs, Staff visited the website of the International Life Saving Federation. The About Page of the ILS states that: "The International Life Saving Federation is composed of national aquatic lifesaving organizations (known as Member Federations) from around the world. Through our own work and that of our Member Federations, we lead the global effort to reduce injury and death in, on, or around the water. We accomplish this by assisting existing national lifesaving organizations; facilitating and developing a global exchange of drowning prevention and lifesaving information and of best lifesaving practices; helping establish lifesaving organizations in areas of the world where they are needed, but do not exist; acting as the International Federation for lifesaving sport; and cooperating with other international bodies with shared goals." On the Position Statements section/webpage (linked here http://www.ilsf.org/about/nosition- statements) of the ILS website, there is a Position Statement about Water Safety (linked here httn://www.ilsforefile/3 896/download?token=OoZNUnv-) The four (4) page document examines many aspects of drowning and defines drowning as a leading cause of death. The Position Statement makes the point that "drowning occurs at any age, but over half of all drowning deaths are of children under 15 years of age." The Position Statement puts a focus on the "disparity in the incidence of drowning between low and middle-income countries as compared to high-income countries" and explains the two (2) main differences. One (1) main difference is exposure to water in general. The City of Cape Canaveral is The Space Between Oceanside + Riverside, so obviously there is a HIGH exposure to water for Cape Canaveral residents/visitors. The other difference is stated to be the presence of some sort of preventative action. "Successful preventive strategies, commonly utilized in fully developed countries and some less-developed countries, demonstrate that it is entirely possible to mitigate against drowning, dramatically reducing the incidence of death from this cause. Commonly accepted methods include providing instruction in water safety and swimming skills, minimizing exposure to risk by use of barriers, making personal floatation devices and rescue devices available, providing lifeguards in areas where people gather for recreational swimming, and regulating water transit and other boating." The Position Statement makes a strong point between page one (1) and two (2) saying: "Currently, the difference in drowning rates between higher and lower-income countries is as much as fifty fold; evidence of the effectiveness of preventative efforts in high-income countries. It is a powerful demonstration of the effectiveness of targeting drowning as a major public health problem. Clearly, with adequate attention and effort, drowning is a largely preventable cause of death." On page two (2) of the Position Statement, the ILS describes different risk factors and calls out recreation saying that: "During recreation, common in high-income countries, risk factors include lack of use of personal flotation devices, use of alcohol, recreation at unprotected bodies of water, and exceeding swimming ability." The City has only two (2) lifeguard areas — both of which are not controlled by the City. The use of alcohol is not prohibited on the beach, and many residents/tourists have low water skills. There is also seasonal/frequent high surf/rip currents for residents/visitors to contend with. The Position Statement mentions the World Congress on Drowning from 2002 saying, "At the World Congress on Drowning 2002 the assembled experts estimated that over 80% of all drowning episodes can be prevented, and prevention is the key management intervention." The attitude of City Staff, worldwide beach communities and the organization that determines international lifesaving guidelines is prevention — prevention — prevention. World Water Safety INTERNATIONAL LIFE SAVING FEDERATION taer-=entepier .e — 3ci 10 Leuven — s a„ Ti: 132.fel EB.80.80—E-maI Is hgg:eleTet.be www is' Deg ILIFESAVING POSITION STATEMENT - LPS 06 SWIMMING AND WATER SAFETY EDUCATION BACKGROUND: DROWNING IS A LEADING CAUSE OF DEATH Drowning, defined as death due to respiratory impairment resulting from immersion in a liquid. is a major public health problem. and a leading cause of death and injury worldwide_' The WHO Global Burden of Disease study demonstrated that drowning is one of the most common causes of death.' Drowning occurs at any age. but over half of all drowning deaths are of children under 15 years of age.'" Although reliable statistics on drowning in less-developed countries are scant.. it is believed that over 97% of all drowning episodes viroridw ide occur in low and middle-income countries. Research in Asia has shown that in many countries drowning kilts more children annually than pertussis, measles, diphtheria, plague, cholera, dengue fever. and typhoid combined, and is the leading cause of death in children after infancy.' The great disparity in the incidence of drowning between Iow and middle-income countries as compared to high-income countries reflects two main differences, of which one is the different degree of exposure to water. Whereas in high-income countries water exposure commonly occurs in the context of recreation, in many Iow and middle-income countries exposure can be an everyday part of the routine of daily life. Another difference relates to preventive action Successful preventive strategies, commonly utilised in fully developed countries and some less-developed countries. demonstrate that it is entirety possible to mitigate against drowning, dramatically reducing the incidence of death from this cause. Commonty accepted methods include providing instruction in water safety and swimming skills. minimizing exposure to risk by use of barriers, making personal floatation devices and rescue devices available, providing lifeguards in areas where people gather for recreational swimming. and regulating water transit and other boating. High-income countries were once where Iow and middle-income countries are now. For example. in 1900 the annual incidence of drowning in the Netherlands was 14.4!100,000. but by 2000 it had decreased twenty - fourfold to 0.6/100,000.' Currently, the difference in drowning rates between higher and lower-income countries is as much as fifty fold; evidence of the effectiveness of preventative efforts in high-income International Life Saving Federation Page 2 Lifesaving Position Statement — MPS -06. Water Safety countries. It is a powerful demonstration of the effectiveness of targeting drowning as a major public health problem. Clearly, with adequate attention and effort, drowning is a largely preventable cause of death." Research has shown different nsk factors for different demographic groups_ One of these is gender. Males generally have higher drowning rates than females, with the difference typically attributed to greater exposure to water (through occupation and sport), higher rates of alcohol use (a factor in many countries), and higher rates of nsk-taking behaviour."' Risk factors also differ by age group. Children under four years run the highest nsk of drowning, due primarily to Lack of adequate adult supervision. Ironically, in high-income countries the more common presence of home swimming pools greatly increases the risk of drowning in this age group. For older children and adults, nsk factors differ by activity_ Dunng recreation, common in high-income countries, risk factors include lack of use of personal flotation devices, use of alcohol. recreation at unprotected bodies of water, and exceeding swimming ability.x In low and middle-income countries common risk factors for older children and adults are water i1,311..2,0J, i..tion mishaps; sudden, unanticipated falls into water. and lack of swimming ability.x Research in low and middle-income countries in Asia has shown that young children have the highest risk of drowning. most commonly while alone or playing with a peer of similar age. In these cases, adults are almost never present, nor is anyone who is knowledgeable and skilled in rescue or resuscitation." This illustrates the realities of drowning prevention in low and middle-income countries. Children must be trained to avoid hazardous water activity and to save themselves or their peers when faced with the possibility of drowning. In order to achieve this, the public health approach requires that as many children as possible be taught the necessary knowledge and skills."' Recent research has shown that dunng major natural disasters such as tsunami, vulnerable populations. such as older women and children. are more at risk."'i SWIMMING AND WATER SAFETY FROM A GLOBAL PERSPECTIVE At the World Congress on Drowning 2002 the assembled experts estimated that over 80% of all drowning episodes can be prevented, and prevention is the key management intervention_ Since risk factors differ by age group prevention efforts will differ_ Reduction of infant and young child drowning episodes requires education of parents and carers in the importance of eliminating access to water hazards, both indoors and out, and constant visual supervision by responsible adults. This can also include social responsibility enhancement by education or statutory regulation.° Prevention of drowning in older children and adults depends on their possessing knowledge about the hazards and risks inherent in aquatic activity, and acquinng skills for survival in these environments (basic swimming skills), both for themselves and in order to rescue others. Experience in high-income countries has mainly been with formal training in water safety knowledge and skills in recreational settings, often in concert with competitive swimming and other aquatic sports.r' As a result, most high-income countries have well-developed physical infrastructures (such as supervised pools and aquatic recreation areas). institutional infrastructure (such as swimming clubs and Iife saving organisations), and human infrastructure (such as on -duty lifeguards and qualified trainers with a wide range of competencies). Experience has shown that measures such as these, along with the widespread adoption of formal swimming training for children, have resulted in a remarkable reduction in drowning rates. The United States Lifesaving Association, for example_ has demonstrated that the chance of drowning at a natural body of water when trained Wrtemaiional Life Saving Federation Lifesaving Pasiban Statement — MPS -OS. Water Safety Page 3 lifeguards are on duty is only 1 in 18 million." The estimated 3% of drowning episodes that occur in high-income countnes represent both a remarkable public health achievement and a successful approach to the problem of drowning_ Even at these low rates. however, in the context of the relatively high overall safety, typical of high-income countries, drowning remains a ,. _ I _ E _ely large public health burden when contrasted with other causes of death. Indeed, it is often one of the leading causes of child and young adult deaths in these countries."" As such, redoubled efforts to increase the imp\ I, of these preventative measures are clearly necessary.'"."' Since 97% of all drowning episodes occur in countries with more limited financial. institutional or human resources, drowning prevention in these resource -poor settings will require recognition of limitations and an adaptation of the successful strategies of higher - income countries. Research from Bangladesh. one of the poorest countries in the world, but one with a culture of water safety, has shown that educating mothers to eliminate water hazards in and near the house, to supervise very young children carefully, and to teach children to swim at a basic level of skill early in life. lead to significant and sustained decreases in drowning rates.70° Evidence is rapidly accumulating that a basic level of water safety knowledge. coupled with a basic level of swimming skill (often called survival swimming) is sufficient to prevent most drowning episodes."°' To be successful. global drowning prevention efforts must allow for differences between countries with differing income levels. While many of the measures successfully employed in high-income countnes could be successful in other countries. social realities require tailoring of preventive measures to the circumstances and causes of drowning_ A more basic and resource -sparing approach in low and middle-income countries will, generally. be needed, with a focus on key target groups such as parents and carers of infants and young children. These groups should be taught the basics of water safety and the importance of their children learning to swim as early in life as possible. Coupled with efforts to help these countries develop the same effective institutions and professionals as are typical in high- income countries, the result should be a gradual but steady decline in the incidence of drowning over time. as has been the experience in high-income countries."C' NOTE: The terms high-income (for example OECD), middle-income, and low-income have been used to describe countries at varying levels of development. These terms relate to average incomes and must be taken in the context that there are very low-income individuals in high-income countries. as well as very high-income individuals in low-income countries. Thus, certain strategies for low-income countries may be valuable for specific populations in high-income countries and vice -versa. STATEMENT 1. Death by drowning is a leading public health problem in all countries. Prevention requires public and government support. 2. The vast majority of deaths by drown ng can be prevented. 3. Everyone, ideally commencing at a young age and regardless of ability and background, should have access to training in water safety, personal survival. and water rescue. 4. Knowledge and understanding of water environments and their associated hazards should be taught to everyone at the earliest possible age. 5. This awareness training should be accompanied by the provision of swimming teaching, in the safest manner possible and to at least a basic level of skill that provides the capacity for survival after unexpected and sudden immersion in water. International Life Saving Federation Page 4 Lifesaving Position Statement -MPS -0S. Water Safety 6. Acquisition of more advanced water safety knowledge and swimming skills, to include water rescue and competitive swimming, should be encouraged as these enhance aquatic safety_ 7. Water hazards should be reduced wherever possible, particularly where swimming and water safety education take place_ S. Trained lifeguards should provide prevention, rescue, and treatment where recreational swimming and water safety education take place. 9. Wherever possible, organisations with drowning -prevention expertise, based in high- income countries, should provide assistance to (ower -income countries. 10. Accessible and affordable training in water safety and swimming skills should, ideally, be made available for everyone, particularly children, in all countries, to a level consistent with the ILS International Water Safety and Swimming Education Guidelines. REFERENCES A new ce`^ tier of drowning: towards cocunerrlabon and prevention of a global public heath problem, Bulletin of the world i-Iealth Organmatt^ November 2026.83 (11) pp8S3-858 Nature Medicrre 4, 124' - 1243 i:' Egad The global burden of disease. 1990-2020 Alan D Lopez & Christopher Murray, Wo6c Health organization Ge.reva 27, CH -1211 Swt<edanc and Harvard Schad of Public Health Cambrage. Massachs 02138. USA " Krug E ed Iniuy- a leading cause of the global burder o` osease. Geneva World Health Organization, 1990 www who.irtt4rolen+ce riu y preverrtim'pti njrrytorcen Irr,ay Control arc Safety Promaoor4 The . of aro rrtng mtxxldwde. M.IIA Peden and K. McGee, Vol 10. No 4 pp"9:-1'e{d Deoernoer 2U133 UNICEF.'TASC Townes A 'W'orld Sale For Children, Proceedings d UNICEFITASC Cerfeyrenvas or Ch c Intrry, Bangkok: UIJCEF,TASC; 2004 Drowning in the N .. . J illi a i r, . Eprderniobgy and Ctinicall Studies J 6 then - 1008 - PhD dissertatcn University of L'trecht Branche C. an Beeck E (2003( =... .. . an atterview In- Biererm J. ed Handbook on Drowning. Preventcr Rescue Treatment. Netherlands, Springer. 2005 Guidelines for Sate Recreatcnal Water C . J. Chapter 2. Drowning ano Injury Prevention WI40, Geneva rNrver.rvho.int Centers fa Disease Control and Prevention(CCC) Nonfatal ono fiat drornngs in recreational water settings - US 2001- 2002 Mob Mortal Wkly Rep 25104.53;447-52 Kobusngye CC (2033) The global burden of drdrtrrrng: Africa- Ire E erehs J elf. Handbook on Drowning. Prevention Rescue Trealmertt.. Netherlands, Springer. 20115+ Ba aladesh Health and Injury Survey, Report on Ch Wren. Jai 2r*w,= '= 7:Q-603-38,554 UNICEF d UtNICEFlTASC Minrcnsullabon on injury Prevention in Children. 6a ,• _- 23D5 Shannon D et a. Tsunami mortality in Acelt Province. Indonesia: E. - of the World Health Orgaysaton, February 2037: 85: pp273.278 Neon, J-, J. Peart et al. (19981. 'Fifteen years at child drounrhg mita 1E187-19181 analysis of a! fatal cases from the Brisbane Drowning Study and an 11 year study of consecutive _. .. ; casesAccident Analysis S Prevention 18(3). 100-203 CDC (1008} Report on droning treventon. Atlanta. GA Centers for Disease Control Natrona Center for Injury Prevention and Control. United States Liesavng Assocator cat] 19E' -2006: http!,Www. asta.ora^Statsticspvblic asp Fads about Injuries -Drowning. World Heath Organsation, Geneva Swittatarrd, 2003 •"' RLSSA NatcnaI Snort/rung ano Water Safety Framework The Royal Life Saving Society Australia. Syoney. Australia. 2000 • Posittot Statement: Canadian Swirls -to -Survive Standa^n Lifesaving Society Canada, Ottawa., Cada. November 2000 Drownr9 P-ev'er+tiar Strategy Towards A Water Safe Nee Zealand, 2005-2015 Draft Consultation Docvmer't • Centre for Injury Preve^ttr Research, Bangladesh, Report on Sherpa Dhaka 2004 UNICEF Bangladesh, Chiafrood Irrpry Prevernor Program (PRECISE( UNICEF Ban arrest +« TASC www.tasc-g pf.org Poston Statement approved by ILS on 20106,2037 Carl Bildner 425 Pierce Ave. Unit 409 Cape Canaveral, FL 32920 April 16, 2017 To whom it may concern. The new life preserver poles are ill-conceived, unattractive, and a waste of money. 1) Someone is going to drown in a rip tide trying to help someone else. The City will be sued, 2) PVC degrades in the sun and snaps in the wind. They will need constant replacement. 3) They are ugly and will repel upscale visitors and residents. Please reconsider this concept before a tragedy occurs. Sincerely, OtAt Carl Bildner Ctrl Bildner 425 Pierce Ave. Unit 409 Cane Canaveral, FL. 32920 EIFL,u,r+1010 ft aZg 112 . T"!F! .72 /AU 141 'f'1 ' Joshua Surprenant P.O. Box 326 Cape CanakTrat EL 32920 226 r ! I li„ 111r l t, l ril llll ts lnlilfil ii lti i ill William F. Fox 612 Monroe Ave. Cape Canaveral, FL 32920 (321) 506-9388 4/3/2017 David L. Greene Cape Canaveral City Manager P.O. Box 326 Cape Canaveral, FL 32920 Dr. Mr. Greene, I have been an ocean lifeguard for more than 30 years. I started working full- time, year-round with the city of Hollywood, Florida in 1978, and I worked in this position until 2003. I also worked as a lifeguard for twelve summers at the New Jersey seashore in Wildwood, North Wildwood, Sea Isle City. and Ship Bottom (Long Beach Island). I was also the first treasurer for the Southeast region of the United States Lifesaving Association (USLA). The new floats on the Cape Canaveral beaches are a hazard, and you are courting disaster with them. By installing these devices, Cape Canaveral is undermining public safety and jeopardizing the lives of innocent people. By encouraging unqualified people to attempt ocean rescues, these devices are needlessly placing people in harm's way. Ocean rescues are dangerous, and most people should never attempt one. With the city's blessing, the new buoys encourage untrained and unfit people to put themselves at risk. Rather than saving a life, these people are far more likely to become victims themselves. By far the most likely scenario, and one now with the city's stamp of approval, would see an untrained and unqualified person rush into rough water and dangerous currents to attempt a rescue. As a life guard, 1 saw countless times the danger and tragedy of such amateur rescue attempts. So many times, the rescuer also becomes a victim, so now we have a double tragedy. Besides placing innocent and untrained people's lives at risk, these buoys also provide a false sense of security for beachgoers, who might venture further out to sea than they otherwise would without the prospect of amateur rescuers. Further, they are a hazard at night, where people walking the beach might walk into them. Please do the right thing for public safety, and remove these dangerous devices from our beaches. William F. Fox cc. Jusliva Surprenant Mayor Bob Hoog Brendan McMillin Betty Walsh Mike Brown Rocky Randels Willcam F Fox 6i/ montoe Avenue Cape CAnavet FL 32azo CPJLAr•tC11.) FL. 11..;7 JOS hock Su\-pfenanf Q, o. Fox 32e Cc 9e C©,na\rev-a 1, FL 32d120 .; ==?0-032E26 lr Irlin I Ilu il nl it I u i u I Iu III In iJ l l A webpage has also been created on the City website to house the Life Rescue Project/Station information/map. Please follow this link to visit the webpage httn://citvofcaoecanaveral.org/lrp h EMi L4 P.nrm a.n aykyr'rw,s,. IWlanb4e Prc>)rt[Edtmynumm.r.v[valPe.E.a[IIIM.]Y"Jal 5rq Ankh.,PvEng, a . van nw.dw ...;.omma, yy n, •iM w,«=5vror1 A„w+rwovi "ia^I . wn..m. ,II astaff r..lrs and 4L 5s arm rMr.w.r. a,.nr.n a„a.a..nma>a„nwa,m.ra ane r.n.am vaP m'.wq , M.+.amn .mw ,L.m aon„d,.+.wnax w 5a.en u. wln,..ne„m.p nm:•^Pe a.mfl eI:kr..... re. en. MO... 5.1.. n cq Pe.m urocrawrtSV.na [rmws. Pwa F,{vwoxwa•w.IP..rn ^ mn c..0,1.'1.w:Ith Inns G ihS.yraa.,4✓.raFMraavaWun Mar we r n, L -nears .me,ae,.w o.., Ada r am*saw.r a;w beam 5wo-a sqm xw5 xM Gar. .CE C. brand. ALII.lW [a WCxy wC.newhera iemae,P.maava un wen rm. infatm.wn. Staff was informed that on Friday, April 14, 2017 at approximately 7pm, Life Rescue Project spokesman/Life Rescue Station developer Wyatt Werneth, a retired former Brevard County Ocean Rescue Chief, had rescued five (5) people from drowning at Patrick Air Force Base Beach in Brevard County. "Werneth was driving along AIA in an unguarded area of Patrick Air Force Base and saw commotion and quickly pulled over and was told by responding officers that multiple drownings were occurring. As a trained Lifeguard and Waterman of over 35 years, Werneth grabbed his equipment which included a LIFE Rescue Tube and ocean rescue fins and his training took over. He immediately jumped in, swimming straight to rescue the 5 victims. He stabilized the victims by having the 4 conscious ones grab hold of the rescue tube. The police officers proceeded out to the victims and helped bring them in one by one. Werneth stabilized the unconscious victim and subsequently brought him to shore. In a miraculous set of circumstances, Werneth was headed to an out of town grocery store to help jump start his wife's car which had died during an out of town shopping trip. Her location caused him to have to pass by the Air Force Base. Werneth credited the Air Force Base officials when interviewed by Lifeguard Times, "If it was not for the Air Force guys I don't think it would have been as successful." Wyatt Werneth is the National Spokesperson for the LIFE Rescue Project, a nonprofit organization headquartered in Florida dedicated to lifesaving." More information on the Life Guard Times website linked here lifeguardtimes.com/retired-ocean- rescue-chief-saves-5/ uardTimes The %)trusted source for lifeguard news NEWS HEALTH TECH EVENTS PHOTOS FORUM JOBS CONTACT BREAKING NEWS: RETIRED OCEAN RESCUE CHIEF SAVES 5 FROM DROWNING Artr, Ir t if•, iti it i, 1 Cooimer.. GOOD FRIDAY INCIDENT LEADS RETIRED OCEAN RESCUE CHIEF TO SAVE 5 FROM DROWNING AilliMorwr-04 SEARCH SPONSOR LIFEGUARD LED NON-PROFIT ORGANIZATION WITH A GLOBAL "At MISSION TO SAVE LIVES rv The City was also mentioned on the Life Guard Times in a recent article about the Rescue Tube Project Expanding Nationwide. For more information, please follow this link life ;?uardtimes. com/rescue-tube-installation-prof ect-expanding/ ifeguardT!mes MO Ther 1 trusted source for lifeguard news NEWS HEALTH TECH EVENTS PHOTOS FORUM JOBS CONTACT RESCUE TUBE INSTALLATION PROJECT EXPANDING Lifeguard Times 17 i" =. , =les tic;.. No Comments RESCUE TUBE PROJECT EXPANDING NATIONWIDE Many Beachgoers in Florida have been noticing rescue tube stations, known more specifically as LIFETM Rescue Stations, popping up across the state's beaches In recent months. The first city to install the devices earlier MSI year was Cocoa Beath followed soon atter by Cape Canaveral. The device Is similar in concept to swimming pools and boats having a ring buoy or other flotation device available for emergency drowning Situations New Potations installing the devices include areas in Virginia and Werth Carolina. Wyatt Werneth, the National Spokesperson for the LIFE Rescue Project. the nonprofit foundation installing the tubes, rias been appearing regularly on The Weather Channel and other news outlets t0 promote the installation and use of the devices For more information about the LIFE Rescue Project click here. For future articles about lireguarding related Industry topics, visit www Pifeguardlirnes tam. RELATED POSTS SEARCH SPONSOR r,'= . I LIFEGUARD LED is iNON-PROFIT .. 1 ORGANIZATION WITH A GLOBAL pipi11I MISSION TO SAVE LIVES t Cape Canaveral has also been named #1 for something... Drumroll please! "Are you a lifeguard? Do you want to know the top 5 best beaches in America to lifeguard? Lifeguard TV has narrowed down the list for you of the top 5 beaches to lifeguard!" Please follow this link to watch the video lifeguardtv.com/top-5-beaches-lifeguard/ City Council Meeting Video/Live Stream Staff recorded/live streamed (using Periscope) the Tuesday, April 18, 2017 City Council Meeting. The live broadcast had 155 viewers! To view the live stream, please visit the following link twitter.com/capecanaveralfl To view the meeting video on YouTube, please visit the following link citvofcapecanaveral.org/watchmeetings Attendees were invited to view the proposed park/streetscape/CAPE project storyboards. Attendees asked Staff questions and took pictures to show their friends who could not make the meeting! The interested residents are excited to potentially have a local Multi -generational Center/Skate Park/Art Park/etc. LIFEGUARD ON DUTY LIFEGUARD ON DUTY Attachment (6) Injury Prevention 1 - ■ MI • Lifeguard Effectiveness: A Report of the Working Group Lifeguard Effectiveness: A Report of the Working Group Editors: Christine M. Branche, Ph.D. Steven Stewart, M.S. Division of Unintentional Injury Prevention National Center for Injury Prevention and Control Centers for Disease Control and Prevention Department of Health and Human Services Lifeguard Effectiveness: A Report of the Working Group is a publication of the National Center for Injury Prevention and the Centers for Disease Control and Prevention Centers for Disease Control and Prevention Jeffrey R Koplan, M.D., M.P.H., Director National Center for Injury Prevention and Control Sue Binder, M.D., Director Division of Unintentional Injury Prevention Christine M. Branche, Ph.D., Director Production services were provided by staff of the Management Analysis and Services Office, CDC. Suggested Citation: Branche CM, Stewart S. (Editors). Lifeguard Effectiveness: A Report of the Working Group. Atlanta: Centers for Disease Control and Prevention, National Center for Injury Prevention and Control; 2001. i i Lifeguard Effectiveness: A Report of the Working Group Table of Contents Contributing Authors v Executive Summary vii Introduction 1 A Brief History and Background of Lifeguarding Services in the United States 3 Events Describing the Efficacy of Lifeguarding Services in Preventing Drowning Deaths 5 Patron Surveillance: A Key Component of Lifeguarding Services 7 Use of Design Criteria to Reduce Drownings at Lakefront Facilities 9 The Economic Costs of Drowning Deaths 11 Legal Implications of Providing Lifeguard Protection 13 Decision Maker's Guide to Lifeguard Protection 15 Summary and Conclusions 17 References 18 Resource Guide 19 Appendix 21 Lifeguard Effectiveness: A Report of the Working Group i i i Contributing Authors Christine M. Branche, Ph.D. Director Division of Unintentional Injury Prevention National Center for Injury Prevention and Control Centers for Disease Control and Prevention Atlanta, Georgia B. Chris Brewster San Diego Lifeguard Service San Diego, California Mike Espino American Red Cross Health & Safety Services, National Headquarters Falls Church, Virginia John Fletemeyer, Ph.D. Palm Beach Police Department Law Enforcement Division Palm Beach, Florida Ralph Goto Water Safety Administrator Department of Parks and Recreation Honolulu, Hawaii Rick Gould Safety Officer City of Santa Cruz Santa Cruz, California Brad Keshlear Natural Resources Management Branch U.S. Army Corps of Engineers Atlanta, Georgia Fred A. Mael, Ph.D. Research Scientist The American Institutes for Research Washington, District of Columbia Lifeguard Effectiveness: A Report of the Working Group v Carl Martinez Water Safety Coordinator National Park Service U.S. Department of the Interior Gateway NRA Headquarters Brooklyn, New York Michael A. Oostman Jeff Ellis and Associates, Inc. Kingwood, Texas Frank Pia Pia Consulting Services Larchmont, New York William Richardson President, U.S. Lifesaving Association Huntington Beach, California Acknowledgments For contributing to organizing the meeting, Cecil Threat and La Tanya Butler. For assistance in editing the drafts of this report, David A. Sleet, Ph.D., and B. Chris Brewster. For compiling and organizing the Resource Guide, Mike Espino and Yvonne Norman. And to each member of the working group for their patience in answering what may have seemed to be endless questions for clarification. vi Lifeguard Effectiveness: A Report of the Working Group Executive Summary Each year, about 4,000 people die from drowning in the United States. Drowning was a leading cause of unintentional injury death among all ages in 1998, and the second leading cause of unintentional injury death among children ages 1-14 that same year. Approximately 50-75% of drownings occur in open water such as oceans, lakes, rivers, and ponds. About 60% of drowning deaths among children occur in swimming pools. Many organizations, including the Centers for Disease Control and Prevention (CDC), routinely respond to inquiries regarding the efficacy of lifeguards in preventing drown- ings. Community and local government officials facing decisions about whether to begin, retain, or discontinue lifeguarding services typically want to know whether lifeguards are truly effective in preventing drowning and other aquatic mishaps, and whether the value of providing lifeguard protection outweighs the costs. Most drownings are preventable through a variety of strategies, one of which is to provide lifeguards in public areas where people are known to swim and to encourage people to swim in those protected areas. Some estimates indicate that the chance of drowning at a beach protected by lifeguards can be less than one in 18 million. There is no doubt that trained, professional lifeguards have had a positive effect on drowning prevention in the United States. The significance of the patron surveillance and supervision that lifeguards provide is emphasized by understanding how people drown. Many people assume that drowning persons are easy to identify because they exhibit obvious signs of distress. Instead, people tend to drown quietly and quickly. Children and adults are rarely able to call out or wave their arms when they are in distress in the water, and can submerge in 20-60 seconds. For these reasons, managers should never assign lifeguards duties that distract them from keeping an eye on the water, such as selling admission tickets or refreshments. In addition, the presence of lifeguards may deter behaviors that could put swimmers at risk for drowning, such as horseplay or venturing into rough or deep water, much like increased police presence can deter crime. When making decisions about using lifeguards and other means of increasing public safety in aquatic settings, policy makers should use available local evidence. This evidence includes: • the effects that lifeguards have had on patrons' safety and attitudes; • the number of people using the facility or beach area during the past years; • the incidence of water -related injuries and drownings at the facility or beach area during those time periods; • data on the number of water -related injuries and drownings at pools and beaches in the local area or state with and without lifeguards, for comparison; and • the level of lifeguards provided (e.g., number of lifeguards per number of persons using the facility). In addition to these factors, policy makers should consider public attitudes about life- guards and legal issues related to using lifeguards. Lifeguard Effectiveness: A Report of the Working Group vii Introduction Each year, about 4,000 people die from drowning in the United States (National Center for Health Statistics, 2000). Drowning was a leading cause of unintentional injury death among all ages in 1998, and the second leading cause of unintentional injury death among children ages 1-14 that same year (National Center for Health Statistics, 2000). Approximately 50-75% of drownings occur in open water such as oceans, lakes, rivers, and ponds (Dietz &Baker, 1974). About 60% of drowning deaths among children occur in swimming pools (Dietz &Baker, 1974). Most drownings are preventable through such means as restricting swimming areas, post- ing warning signs, and fencing the perimeters of pools and waterways. Two important preventive strategies are providing lifeguards in public areas where swimmers frequent, and encouraging use of such protected areas. The United States Lifesaving Association (USLA) compiles statistics for drownings that occur at about 95% of ocean beaches and at some non -ocean sites patrolled by lifeguards.' For the years 1988-1997, USLA recorded fewer than 100 drownings at these sites with more than three-quarters occurring during hours when the beaches were unguarded (USLA, 2000). These data indicate that the vast majority of drownings each year occur at unguarded locations (Mael, Seck, & Russell, 1999); about 60%-70% of U.S. beaches are unguarded (Brewster & Richardson, 2001). USLA statistics estimate that the chance of drowning at a beach protected by lifeguards trained under USLA standards is less than one in 18 million per year (USLA, 2001).2 The Centers for Disease Control and Prevention (CDC), the American Red Cross and USLA routinely respond to inquiries regarding the efficacy of lifeguards in preventing drown- ings. Community and local government officials facing decisions about whether to begin, retain, or discontinue lifeguarding services typically want to know whether lifeguards are truly effective in preventing drowning and other aquatic mishaps, and whether the value of providing lifeguards outweighs the costs. Officials often use cost as the primary criterion in their decision-making. This report is the result of a 1998 meeting CDC convened with a panel of experts to identify gaps in lifeguard effectiveness at recreational waters, and ways to remedy them. This meeting was intended as a discussion about the issues related to the provision of lifeguards. This working group discussed: • the problem of retaining lifeguards and evaluating the efficacy of existing lifeguard services; drowning fatalities and other hazards resulting when lifeguards were removed from facilities; 1 Open water lifeguard agencies submit reports on annual beach attendance, rescues, preventive actions, drownings and other information to USLA, which reports lifesaving statistics from eight regions, with typically over 85 agencies and beaches reporting (USLA, 2001). 2 This calculation is based on ten years of reports from USLA affiliated lifeguard agencies, comparing estimated beach attendance to the number of drownings in areas under lifeguard protection. Lifeguard Effectiveness: A Report of the Working Group 1 • the best methods to communicate information about the efficacy of lifeguards to relevant constituents; and • sources of information about the efficacy of lifeguards, additional data, resources, and case studies. The report includes a brief history of lifeguarding services in the United States; data and findings related to the use of lifeguards in preventing drowning in open water and swimming pool facilities; the experience of an agency which does not provide lifeguards at its water recreation facilities; and economic and legal issues related to the provision of lifeguards. We also provide suggestions for decision makers and alternative solutions for preventing drowning. Drowning prevention, much like other areas of injury prevention, is a young and emerging field. This report aims to stimulate new ideas and approaches. The authors of this report hope it is useful to local policy makers who must make vital decisions about the provision of lifeguards and other interventions to enhance water safety in their communities. 2 Lifeguard Effectiveness: A Report of the Working Group Lifeguarding Services in the United States: A Brief History In the 1800s, swimming, then known as bathing, became an increasingly popular recre- ational activity in the United States. Entrepreneurs built resorts in places like Atlantic City, New Jersey, to attract people from inland cities to escape the summer heat. As water activity increased, so did the incidence of drowning. In fact, by the early 1900s as many as 9,000 people drowned each year in the United States (American Red Cross, 1995). Initial efforts to reduce drownings included installing lifelines.3 However, lifelines proved inadequate because struggling swimmers were not always able to hold on to them. Duke Kahanamoku, the famed Hawaiian surfer, introduced the rescue board between 1910 and 1915, and Captain Harry Sheffield of South Africa is credited with developing the first rescue float (American Red Cross, 1995). Some municipalities assigned police officers to perform water rescues, but this diverted resources from law enforcement. Eventually, municipalities began to hire persons trained and equipped specifically for water rescue. They were called "lifeguards." The lack of a consistent lifeguard presence at all bathing areas led the Young Men's Christian Association (YMCA) to develop a volunteer National Lifesaving Service in 1912. In 1914, Commodore Wilbert E. Longfellow established the American Red Cross Lifesav- ing, which trained swimmers throughout the United States in lifesaving and resuscitation, organized them into a volunteer corps, and encouraged them to accept responsibility for supervision of bathing activities in their communities. At their inception, these lifesaving training programs primarily emphasized personal water safety: how to prevent drownings and protect oneself in emergencies. Nonswim- ming rescue methods, such as throwing a rope or a floating object to the person in the water, were encouraged. Lifeguards considered swimming rescues a last resort due to the hazard presented by a panicked person in the water. However, swimming rescues were unavoidable for professional beach lifeguards in the United States. Special tools, such as the landline4 and the dory,' were developed to assist in swimming rescues. Over time, improved lifesaving devices were created by beach lifeguards in the United States. These include the rescue buoy, the rescue tube, and the rescue boards which are commonly used around the world at beaches, pools, and water parks. Today, many beach lifeguards use powerboats and personal watercraft to assist them in reaching off -shore swimmers in distress quickly and use scuba equipment for deep water rescues. In 1964, the organization now known as the United States Lifesaving Association (USLA) was founded by members of several California surf lifeguard agencies originally to enhance lifesaving efforts and drowning prevention, to standardize beach lifeguard prac- tices, to educate the public about water safety, and to improve professionalism among 3 Lifelines are ropes tied onshore and to poles in the ocean water, to which bathers can cling. 4 The landline is a rope used by a lifeguard during a swimming rescue. A lifeguard swims with the landline to a victim in the water, and people sonshore pull both lifeguard and victim to safety. 5 The dory is a small boat rowed out to rescue victims in distress. 6 The rescue board is a surfboard modified for rescuing drowning victims. Lifeguard Effectiveness: A Report of the Working Group 3 beach lifeguard organizations around the country. Membership has since expanded to include any employee of an ocean, bay, lake, river or other open water rescue service (Brewster, 2001). In 1980, the World Waterpark Association was formed to address needs in aquatic amusement parks. Following this, Ellis and Associates, through the National Pool and Waterpark Lifeguard Training program, established specialized water - park lifesaving standards and certification programs. In 1983 and 1986, respectively, the American Red Cross and YMCA expanded their training programs to provide nationally standardized instruction for lifeguards at both swimming pools and beaches. Local employers continue to provide lifeguard training at most surf beaches. The American Red Cross, USLA and Ellis and Associates establish standards which are universally adopted for lifeguard training. Lifeguards have always provided first aid as well as rescue. Cardio -pulmonary resuscita- tion (CPR) and general first aid training are standard requirements for most lifeguards. In addition, many lifeguards are now both trained and certified to use advanced lifesaving tools such as the external defibrillator and portable oxygen. In some communities, lifeguards have taken on broader public safety responsibilities, such as advanced life support, coastal cliff rescue, and law enforcement. Major aquatic safety organizations in the United States have continually emphasized prevention rather than rescue as the primary method to reduce drownings. Public safety education and onsite supervision by lifeguards have helped keep drowning rates low for 40 years, and have significantly reduced the number of drownings in the United States. Since 1960, both beach attendance and rescues by lifeguards have risen steadily, although the total number of reported drownings on lifeguarded beaches remained relatively stable with fewer than 106 cases each year (USLA, 2000). In fact, from 1986 through 1999, USLA reported that in California, while beach attendance has increased, so has the amount of lifeguard education (See Figure 1 in Appendix) (USLA 2000). Although rescue activity fluctuated, the number of drownings is down. Estimates indicate that today, U.S. lifeguards rescue more than an estimated 100,000 persons from drowning annually. USLA data show a rescue -to -drowning ratio in the 1960s of one drowning for every 2,004 rescues at beaches with on -duty lifeguards. In the 1990s, however, the ratio improved to one drowning for every 4,832 rescues at lifeguarded beaches. In addition, for every rescue, an effective lifeguard makes scores of preventive actions, such as warning an individual away from a dangerous area and suggesting that poor swimmers stay in shallow water. There is no doubt that trained, professional lifeguards have had a positive effect on drowning prevention in the United States. While the number of Americans participating in water recreation has grown tremendously since the late 1800s and the popularity of aquatic activities has increased, the annual incidence of drowning in the United States has declined from about 6,300 persons in 1981 to about 4,000 persons in 1998 (National Center for Health Statistics, 2000). Nevertheless, despite the advances in rescue techniques and the decline in drowning rates in the United States, drowning remains a leading cause of unintentional injury death, especially among children and youth. If the incidence of drowning is to be reduced further, greater attention to prevention, including the staffing and training of lifeguards, is essential. 4 Lifeguard Effectiveness: A Report of the Working Group Events Describing the Efficacy of Lifeguards in Preventing Drowning Deaths Evidence suggests that lifeguard services benefit public safety by saving lives, lowering drowning rates, and preventing injuries in aquatic recreational environments. Lifeguards also indirectly provide economic and social benefits. They add to the savings in emer- gency medical care and long-term hospital treatment involving cases of near -drowning (Hassell 1997) and alleviate emotional trauma and social costs to family and friends. Communities sometimes choose to discontinue lifeguards as a cost-saving measure. We provide a series of case studies to demonstrate the impact of lifeguards on drowning. A few caveats are worth noting when considering these case studies. First, geography, environmental conditions, demographics, and other local conditions may be factors in drownings. Also, national data are not available to assess the number of drownings that occur on beaches without lifeguards because no centralized reporting system exists. Nonetheless, case studies help illustrate the potential effects of lifeguards on public safety. Case Sudies Case 1: American Beach (Nassau County), Florida In 1989 the Nassau County Commission decided to eliminate lifeguards on American Beach in order to save county expenses. Less than a year later on Memorial Day, 1990, five persons drowned and 20 others nearly drowned when rough ocean conditions and strong winds caused rip currents to form immediately offshore, making this one of the worst drowning episodes in Florida's history. Shortly after this tragedy, local officials reestablished lifeguarding services. In the eight years since, no one has drowned. Case 2: Keawaula Beach, Hawaii Keawaula Beach at Kaena Point State Park is located at the westernmost point on the island of Oahu. The beach is exposed to high surf; a strong shore break; and a strong, often severe, current. The remote, pristine site attracts many surfers, sunbathers, swim- mers, and waders. The combination of dangerous physical features and heavy use by patrons increases the risk for water -related injury and death. From 1985 to 1991, two drownings and 40 near -drownings occurred at Keawaula Beach. Although the State of Hawaii does not provide lifeguards, it elected to contract with the City and County of Honolulu to place lifeguards at Keawaula Beach beginning in January, 1992. Since then, no drownings have occurred at this beach. Case 3: Ocean Beach, San Francisco, California Ocean Beach covers more than five miles of the Pacific shore in the City and County of San Francisco. Rip currents are common in the water off this beach. The beach is administered by the U.S. National Park Service and is part of the Golden Gate National Recreation Area (GGNRA). Until the early 1990s, GGNRA provided lifeguards at several beaches in the region, including Stinson Beach, China Beach, and Aquatic Park near Lifeguard Effectiveness: A Report of the Working Group 5 Fisherman's Wharf, with occasional patrols and emergency response to Ocean Beach. As a result of budgetary concerns, lifeguards for Aquatic Park, China Beach, and Ocean Beach were gradually removed in the early 1990s. However, the beach -going public continued to swim at Ocean Beach, and drownings continued to occur, despite the development of an aquatic response team by the San Francisco Fire Department, which accomplished a number of rescues. During the late spring and early summer of 1998, there were seven drownings at Ocean Beach, which exceeded the previous six-year total. These drownings generated extensive media attention and resulted in calls by several major groups and prominent individuals for lifeguard protection. GGNRA consulted with USLA to develop a plan to employ, train, and deploy aquatic rescue personnel at Ocean Beach. On-site lifeguard services began before the summer of 1999, and since that time, no drownings have occurred at Ocean Beach. Case 4: Ocean Beach, San Diego, California In 1918, 13 people drowned in rip currents in a single day at San Diego's Ocean Beach, garnering local and national news attention. Beach attendance that day was estimated at 5,000. City officials cited inadequate lifeguard protection as a cause of the tragedy, and as a result, initiated a municipal lifeguard service. The ocean conditions have changed little since then. San Diego's local leaders view the 17 miles of oceanfront shoreline, which include Ocean Beach, as a safely managed tourist attraction due to the presence of lifeguards. Despite an average estimated annual attendance of 15 million people and over 7,000 rescues at the major lifeguarded beaches, the average number of drownings in areas under lifeguard protection is between zero and one annually. 6 Lifeguard Effectiveness: A Report of the Working Group Patron Surveillance: A Key Component of Lifeguarding Services Lifeguards play an important role in a swimming facility's risk management program. Lifeguards are trained to monitor the aquatic environment, supervise patrons, inform patrons about the potential for injury, educate them about the consequences of injury - producing behavior, and enforce rules and regulations that prevent injuries. They are also, of course, expected to perform rescues to prevent drownings and to provide imme- diate first aid and CPR. But to do so, they must first identify persons who are in distress in the water. Patron surveillance is key to preventing aquatic injury. It involves maintaining a constant watch over persons both in and out of the water and over the aquatic facility in order to identify circumstances that may cause injury. Action can then be taken to prevent or minimize injury. For example, a lifeguard may notice a small child playing alone in the water near a known drop-off and intervene before the child steps in water that is too deep. A lifeguard may also observe a person struggling in the water and perform a timely rescue. The importance of lifeguards providing patron surveillance, especially monitoring the behavior of swimmers, can be demonstrated with a brief description of how persons drown. Many people assume that drowning persons are easy to identify because they will exhibit obvious signs of distress in the water, such as yelling or waving their arms. However, this kind of behavior is not common. Instead, people tend to drown in more quiet, less attention -getting ways. Drowning persons usually struggle to keep their mouth above the surface of the water in order to breathe. Struggling to stay afloat and possibly suffocating, they are rarely able to call out or wave their arms. Observational studies of persons at flat water (non -surf) beaches have revealed that non -swimming adults who find themselves in water over their heads are generally able to struggle on the surface of the water for about 60 seconds, while infants and very small children can submerge in as little as 20 seconds. These characteristics of drowning — the inability of a person to call or wave for help and the short time period before submerging — emphasize the need for lifeguards as a source for continuous surveillance and immediate action.' However, supervisors and managers at aquatic facilities sometimes make the mistake of assigning lifeguards unrelated duties to perform while also expecting them to conduct effective patron surveillance. Because drowning can occur quickly and quietly, it is not surprising that lifeguards, distracted from keeping an eye on the water by other assigned duties, have failed to spot drowning persons in time to rescue them. Indeed, unobserved drownings have occurred even while lifeguards were stationed 20 feet from the water, taking tickets of those entering the facility or selling refreshments. It is clear, therefore, that swimming facilities must be staffed adequately to ensure effective and continuous patron surveillance, and that lifeguards should be given no other task that would distract them from this work. This concept is also supported by the USLA. The USLA ' These characteristics of persons in distress in the water have been called the Instinctive Drowning Response by Pia (Pia F., 1971, On Drowning, 2nd rev. ed, Water Safety films, Inc., Larchmont, NY; Pia F., 1974 Observations on the drowning of nonswimmers. Journal of Physical Education, The YMCA Society of North America, Warsaw, IN). Lifeguard Effectiveness: A Report of the Working Group 7 requires lifeguard agencies seeking USLA certification to adhere to the following prin- ciples: "Lifeguards assigned to supervise an aquatic area shall not be subject to duties that would distract or intrude their attention from proper observation of persons in the waterfront area, or that prevent immediate assistance to persons in distress in the water. Specifically, lifeguards assigned to water surveillance shall not be assigned to any duties other than public safety" (USLA, 2000). 8 Lifeguard Effectiveness: A Report of the Working Group Use of Design Criteria to Reduce Drownings at Lakefront Facilities Although providing quality lifeguarding services at water recreational facilities is effective in preventing drowning, some decision makers may elect not to hire lifeguards. In that case, environmental modifications to the facility can still improve safety for patrons. This section describes some environmental design changes that one water recreation provider used to reduce drownings at facilities that did not employ lifeguards. The U.S. Army Corps of Engineers is the second largest provider of outdoor recreation facilities in the United States, managing more than 7 million surface acres of water and 4.5 million acres of land. Corps lakes are located in 43 states, and in 1998 staff recorded 2.6 billion visitor hours at these lakes. Approximately 58% of these hours (1.5 billion hours) are attributable to water recreation, such as swimming, wading, boating, water skiing, and fishing. As a policy developed to limit liability, the Corps does not assign lifeguards to its facilities; it has a "swim at your own risk" policy. However, to reduce the number of drownings occurring at its beaches, the Corps established specific design criteria for its lakefront swimming beaches in 1987. These design criteria appear to have helped. Between 1971 and 1987, before the criteria were implemented, an average of 330 swimmers drowned each year. The design criteria were introduced between 1988 and 1998, and over that decade the yearly average fell to 183 drownings. These criteria are intended for inland lakes rather than surf beaches, where surf action makes them difficult to implement. The majority of the design criteria for Corps swimming beaches relate to environmental controls. The priorities in the design of a beach are safety of the user, effects the physical features of the site will have on the beach, and future operation and maintenance considerations. The Corps design criteria include estimating expected patron visitation levels; providing access for disabled persons; creating slope gradients that gradually and smoothly lead to deeper water; making efforts to ensure that the swimming area is protected from possible sources of contamination; maintaining consistent water levels; prohibiting diving platforms and swim floats; using buoys and markers to delineate the swim area and keep boats out; and ensuring the availability of additional safety measures such as rings, buoy lines, and poles. The complete design criteria for Corps swimming beaches can be found in Engineer Manual [EM -1110-1-400], Recreation Planning and Design Criteria, July 31, 1987. The U.S. Army Corps of Engineers also supports a comprehensive water safety informa- tion campaign. Corps employees who work in water safety throughout the United States develop a coordinated, annual water safety campaign. Evaluations of previous campaigns allow the Corps to identify specific water safety issues each year for a full- scale educational campaign at all its facilities. The campaigns include print and television public service announcements. Many of the messages target school -aged children, a high-risk group. Lifeguard Effectiveness: A Report of the Working Group 9 Economic Costs of Drowning Deaths Public safety education and onsite supervision by lifeguards have helped keep drowning rates low for 40 years, and have significantly reduced the number of drownings in the United States. Still, the cost of a single catastrophic injury or death while using an aquatic facility can be substantial. Experts have described the costs of unintentional death through two measures. The economic costs framework measures the victim's productivity loss and the expenses related to the event.' Comprehensive costs include the economic loss, as well as the value of lost quality of life associated with the death or injury. In 1997, the National Safety Council placed the economic value of each unintentional injury death at $790,000 and the comprehensive cost at $2,790,000 (National Safety Council, 1997). Using the drowning figures from beaches in the USLA reporting system, the comprehensive costs of drowning on coastlines in 1997 amounted to $273,420,000. From 1960 to the present, the total cost of drowning deaths at these USLA beaches is estimated to have been $4.2 billion. Factoring in costs of drowning in other aquatic facilities and the estimated annual cost of $138,000 per incapacitating injury, and the $180,000 annual cost for a catastrophic injury, the total costs of unintentional injury begin to climb geometrically. For comparison, salaries and benefits (typically 50% of costs) for full-time beach lifeguards range from $26,500 to $32,000 in Hawaii, Southern California and South Florida, where lifeguards work year-round. It is clear that providing a safe aquatic environment and instituting programs to prevent aquatic injury or death offer significant economic and social savings to society as a whole. Although water -related injuries and drownings already result in tremendous costs, they would be substantially higher without lifeguards. One way of describing these costs is to estimate that one percent of the total rescues made by lifeguards would have resulted in a drowning death in the absence of lifeguards. In 1997, USLA recorded approximately 77,000 rescues for areas served by lifeguards. If one percent of these rescues (770) had instead resulted in death, either because the rescue had not taken place or because there were no lifeguards, then the economic cost of these deaths would be more than $600 million, and the comprehensive cost would exceed $2.1 billion.9 Using the same assumption, that one percent of the rescues instead resulted in incapaci- tating injuries (i.e., ones that would disable persons and permanently prevent them from performing some or all work), would yield a cost of approximately $4.1 billion per year over and above initial economic or comprehensive costs. If one percent of the rescues had instead resulted in nonincapacitating injuries (i.e., ones that required medical care or hospitalization but would not result in disability), then the anticipated cost would be about $10.7 million for economic costs per year and $27.5 million per year for comprehensive costs. Table 1 in the Appendix includes cost estimates for different models using a lifeguard rescue effectiveness ranging between 1% and 36%. 8 Included in the components of economic losses are: wages and productivity; medical expenses; administra- tive expenses of law enforcement, legal fees and insurance costs; and employer costs. 9 These figures do not estimate the costs of converting a death to an incapacitating injury because of a rescue. Lifeguard Effectiveness: A Report of the Working Group 11 While these estimates help demonstrate the range of costs of drownings and water - related injuries and the benefits of prevention on a national scale, the numbers may be so large that they do not assist decision makers working with a single, community facility. Mael, Seck, and Russell (1999) provide a helpful method of estimating costs on a smaller scale by converting the ratios to a given baseline of 10,000 patrons. They estimate the number of rescues needed if no preventive actions are taken, the number of injuries if there are no rescues, and the number of drownings if there are no rescues (i.e., no life- guards present to intervene). This method provides minimum and maximum estimates of both the economic and the comprehensive costs of drownings and injuries at unprotected sites. They calculate that the total economic costs for not having lifeguards per 10,000 patrons ranges from $202,500 to $4.6 million and the total comprehensive costs per 10,000 patrons ranges from $705,380 to $16.1 million (see Table 2 in Appendix). 12 Lifeguard Effectiveness: A Report of the Working Group Legal Implications of Providing Lifeguard Protection The decision to provide lifeguard protection can be influenced by civil liability laws, which may hold the owners of aquatic areas and the lifeguards they employ responsible for fatal and nonfatal injuries. One aspect of liability involves malfeasance. In most states, lifeguards, like other safety providers, are expected to act within a standard of care set by their training, local protocols, and past court rulings. A variation from the standard of care may result in liability. Another aspect of liability involves the condition of the facility and the quality of warning or protection provided. Some laws absolve federal, state, or local governments of liability for injuries resulting from natural conditions, such as currents and surf action. In California, for example, local governments are immune from injuries sustained at beaches as a result of natural conditions, regardless of the presence or absence of lifeguards or warning signs. This approach neither discourages nor encour- ages the placement of lifeguards. Some state laws hold governments liable for natural conditions under certain circum- stances. The Supreme Court of Hawaii (Kaczmarczyk vs. City and County of Honolulu, 1982) has determined that while a municipality is not an insurer of the safety of those using public beaches and adjacent waters, governments must exercise reasonable care in maintaining these facilities and in supervising their use by the public. The court has found that the municipality has a duty to warn of extremely dangerous conditions known to the municipality which would not be obvious to an ordinary person. One method of warning is the placement of signs, and Hawaii is assessing the adequacy of warning by signage. In Florida, municipalities have discretionary authority to operate a designated swimming area at a beach, but once they decide to operate a swimming facility, they assume a common law duty to operate it safely. In determining liability for drownings, Florida courts look for a previous knowledge of the danger, the presence of lifeguards, and the adequacy of warnings. Generally, a private Florida landowner, such as a hotel owner, has no duty to post lifeguards on public beaches or warn guests of hazardous ocean condi- tions. If, however, the hotel designates the beach as a swimming area, it incurs a duty to provide adequate warnings and safety precautions. Even if an area is not designated as a swimming area, a duty still may be placed on the landowner to operate the area safely through local ordinances or contractual agreements with beach vendors. Liability definitions categorize swimming pools into those open to the public, those accessible by fee, and those provided by hotels. For public pools, some states and local jurisdictions specifically define the required level of lifeguard protection. In other areas, the level of protection may be left to the pool owner, but in the case of an incident, assessing the quality of protection may be a matter of what is considered reasonable by a judge or jury. In most states, hotels must simply post signs with approved or commonly accepted language. This passive approach to water safety may limit liability, but it also limits injury prevention. It is clear that lifeguards can significantly reduce the Lifeguard Effectiveness: A Report of the Working Group 13 incidence of water -related injury and death. Therefore, laws which encourage placement of lifeguards, although more expensive, can logically be expected to enhance public safety. 14 Lifeguard Effectiveness: A Report of the Working Group Decision Maker's Guide to Lifeguard Protection The decision to protect the public in an aquatic facility, either by providing lifeguards or using another preventive strategy such as signage, requires careful assessment of the alternatives available to the facility or jurisdiction. This section offers some suggestions about how decision makers might approach such a choice and frame the alternatives. In order to assist in evaluating the need for providing lifeguards in a facility or local jurisdiction, consider these steps: (1) Use any relevant data available on the facility or jurisdiction. Data may include: • The number of people using the facility or beach area during past years; • The incidence10 of water -related injuries and drownings at the facility or beach during those times; • The number of water -related injuries and drownings at pools and beaches in the locality or state with and without lifeguards, for comparison; and • the level of lifeguards provided (e.g., number of lifeguards per number of persons using the facility). (2) If lifeguards are already provided, then ask the questions: • How have lifeguards affected patrons' safety and attitudes? • Is the drowning rate increasing, decreasing, or has it remained unchanged? (3) Assess proposed alternatives (e.g., hiring lifeguards, placing warning signs, modify- ing the aquatic environment or restricting access to the facility). As various alternatives are developed, use history and precedence to assess them. • Try to estimate the cost-effectiveness of each alternative. • Assess legal implications and opinions that are critical to the issue and the alternatives. 10 Incidence is the number of drownings (or number of water -related injuries) divided by the total number of visitors at the facility or jurisdiction, multiplied by the period of time in question (e.g., 1 year). Lifeguard Effectiveness: A Report of the Working Group 15 Summary and Conclusions When making choices about drowning prevention interventions in their areas, decision makers must balance a sincere desire to protect the public with "real-world" issues of budgets and legal liability. In this report, we have attempted to provide useful informa- tion and relevant questions that can be applied when making these decisions. One effec- tive drowning prevention intervention is to provide trained, professional lifeguards to conduct patron surveillance and supervision at aquatic facilities and beach areas. USLA data during 1988-1997 indicate that more than three-quarters of drownings at USLA sites occurred at times when beaches were unguarded and that the chances of drowning at a beach protected by lifeguards trained under USLA standards is less than one in 18 million. The four case studies provided in this report also describe the positive impact of lifeguards at beaches where multiple drownings had occurred when unguarded. When lifeguards are employed, it is vital that they be trained effectively in detecting persons in distress, and when assigned to water surveillance not be given duties other than public safety. The presence of lifeguards may deter behaviors that could put swimmers at risk for drowning, such as horseplay or venturing into rough or deep water, much like increased police presence can deter crime. Also, the experiences of the U.S. Army Corps of Engineers suggests that environmental design changes (at inland lakes) and safety information campaigns can also play a role in reducing drowning deaths. Owners and managers of natural water recreation venues should consider these design characteris- tics, regardless of the presence or absence of lifeguards. Regardless of the evidence, or lack thereof, of lifeguard effectiveness, some communities insist on lifeguard services, based on local circumstances. Policy makers need to make use of the available local evidence and consider public attitudes and the legal environ- ment when making decisions about lifeguard services and other means for increasing public safety in aquatic settings. Providing a safe aquatic environment and instituting programs to prevent water -related injury or death offer significant economic savings. Table 2 in the Appendix can serve as a useful tool for estimating the human and economic impact of not providing lifeguards. Finally, if a community develops water recreational facilities to attract patrons who spend money in the local area, then it can be argued that the community has an obligation to protect these patrons. When weighing the costs and legal implications of interventions to prevent drowning, decision makers should never lose sight of the enormous importance of protecting people from harm and preventing tragedy at beaches and pools, places where people go for pleasure, for health, and for solace. Lifeguard Effectiveness: A Report of the Working Group 17 References American Red Cross (1995). Lifeguarding Today, St. Louis, Missouri: Mosby Lifeline. Brewster, B. Chris (July 13, 2001). Personal communication. Brewster, B. Chris & Richardson, William (August 10, 2001). Personal communication. Davis, R (1988). "Sea of Trouble," XS Magazine, pp15-20. Dietz, P.E. &Baker, S.P. (1974). Drowning: Epidemiology and Prevention. American Journal of Public Health, 64, pp 303-312. Fletemeyer, J. & Dean, R. (1994). The Anatomy of a Hazardous Beach Sea Symposium 1994, Panama City, Florida. Fletemeyer, J. &Wolfe, G. (1994). Panama Beach Safety Study. Report by Florida Beach Patrol Chiefs Association and the Southeast Region, United States Lifesaving Association, Ft. Lauderdale, Florida. Hassell, C.A. (1996). Pediatric Drowning Prevention Awareness Program. Masters thesis. Lynn University, Palm Beach, Florida. Kaczmarczyk vs City and County of Honolulu (1982). State of Hawaii, No. 7191, 65 Haw. 612, 656P.2d89. Mael, F., Seck, M. & Russell, D. (1999). A Work Behavior -Oriented Job Analysis for Lifeguards (Final Technical Report). American Institutes for Research, Washington, DC. National Center for Health Statistics, Vital Statistics of the United States, Mortality, Under- lying and Multiple Causes of Death, Public Use Files (2000). Hyattsville, Maryland: NCHS. National Safety Council (1997). Accident Facts, 1997 edition. Itasca, Illinois: National Safety Council. Pia, F. (1971). On Drowning, 2❑d Rev. Ed, Water Safety Films, Inc., Larchmont, New York. Pia, F. (1974). Observations on the Drowning of Nonswimmers. Journal of Physical Education, The YMCA Society of North America, Warsaw, Indiana. United States Lifesaving Association (ed. 2000). USLA Open Water Lifeguard Agency Certification Program, Huntington Beach, California. United States Lifesaving Association. 1999 National Lifesaving Statistics. Available at www.usla.org/Publiclnfo/stats.shtml. Accessed July 13, 2001. 18 Lifeguard Effectiveness: A Report of the Working Group Resource Guide Organizations and Associations that Promote Lifeguarding and Water Safety American Alliance for Health, Physical Education, Recreation and Dance (AAHPERD) 1900 Association Drive Reston, Virginia 22091 (703) 476-3400 American Red Cross Health and Safety Division 8111 Gatehouse Rd. Falls Church, Virginia 22042 (703) 206-7180 BOAT/U.S. Foundation 880 S. Pickett Street Alexandria, Virginia 22304 (703) 823-9550 Boy Scouts of America 1352 Walnut Hill Lane Irving, Texas 75038-3096 (214) 580-2000 The Canadian Red Cross Society 1800 Alta Vista Drive Ottawa, Ontario Canada K1G4J5 (613) 739-3000 The Commodore Longfellow Society 2531 Stonington Rd. Atlanta, Georgia 30338 Girl Scouts of America 420 Fifth Avenue New York, New York 10018 (212) 852-5720 Jeff Ellis and Associates, Inc. 3506 Spruce Park Circle Kingwood, Texas 77345 (713) 360-0606 National Intramural and Recreational Sports Association (NIRSA) 850 SW 15th Street Corvallis, Oregon 97333 (503) 737-2088 National Recreation and Park Association (NRPA) Aquatic Section 650 West Higgins Road Hoffman Estates, Illinois 60195 (708) 843-7529 National Association of State Boating Law Administrators (NASBLA) Box 11099 Lexington, Kentucky 40512-1009 National Safe Boating Council 2911 Russell Road Ostrander, Ohio 43061 (614) 666-3009 National Water Safety Congress Administrative Services 1181 Shake Rag Road Buckhead, Georgia 30625 (706) 342-3775 The Royal Life Saving Society Australia P.O. Box 1567 North Sidney, NSW 2059 02-957-4799 FX 02-929-5726 The Royal Life Saving Society Canada 287 McArhur Ave. Ottawa, Ontario Canada K1 L 6P3 (613) 746-5694 Lifeguard Effectiveness: A Report of the Working Group 19 The Royal Life Saving Society UK Mountbatten House Studley Warwickshire B80 7NN United Kingdom + 0527 853943 U.S. Army Corps of Engineers Safety Office 20 Massachusetts Avenue, NW Washington, DC 20314-1000 (202) 761-8600 United States Coast Guard (USCG) Commandant (G -NAB) 2100 Second Street, SW Washington, DC 20593-0001 United States Coast Guard Auxiliary 3131 North Abingdon Street Arlington, Virginia 22207 United States Lifesaving Association P.O. Box 366 Huntington Beach, California 92648 www.usla.org YMCA of the U.S.A. 101 North Wacker Drive Chicago, Illinois 60606 1-800-872-9622 YWCA of the U.S.A. 726 Broadway New York, New York 10003 (212) 614-2700 World Waterpark Association P.O. Box 14826 Lenexa, Kansas 66285-4826 (913) 599-0300 20 Lifeguard Effectiveness: A Report of the Working Group Appendix Figure 1 California Beach Activity 1986-1999 400— a. 8•3 . . 350— . . • • 300— • ♦ • • • • . • • ♦ . ♦ 250— • • • ♦ . • ■ ♦ . • ■ • . • ■ • . • ■ • 200— . ♦ • ' . ♦ . • ♦ ♦♦♦♦♦•♦♦•a ♦Education(thousands) Attendance(millions) 150— a :: 100— • . . 50— Rescues(thousands) 0 Guarded Drowning 1 1 1 1 1 1 1 1 1 1 T i 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 Year Lifeguard Effectiveness:A Report of the Working Group 21 Table 1 Estimated Cost if Percent of 770,000 Reported Rescues in 1997 Had Not Been Made by Lifeguards* Percentages: 1% 5% 10% 16% 20% 36% Economic costs of deaths $609,130,000 $3,045,650,000 $6,091,295,000 $9,746,072,000 $12,182,590,000 $21,928,662,000 Comprehensive costs of deaths $2,151,230,000 $10,756,150,000 $21,512,295,000 $34,419,672,000 $43,024,590,000 $77,444,262,000 Economic costs of incapacitating injury $31,767,000 $158,836,000 $317,673,000 $508,276,000 $635,345,000 $1,143,621,000 Comprehensive costs of incapacitating injury $106,405,000 $532,000,000 $1,064,050,000 $1,702,478,000 $2,128,100,000 $3,830,576,000 Monthly costs of incapacitating injury** $4,163,700,000 $20,818,350,000 $41,636,700,000 $66,618,720,000 $83,273,400,000 $149,892,120,000 Economic costs of nonincapacitating injury $10,718,000 $53,588,000 $107,176,000 $171,482,000 $214,352,000 $385,833,000 Comprehensive costs of nonincapacitating injury $27,527,000 $137,632,000 $275,265,000 $440,424,000 $550,530,000 $990,953,000 Source:USLA rescue data. *Percentages represent assumed percent of deaths or injuries that would occur if rescues were not performed. ** $15,000 per month,assumption of 30 years continued life =$5,400,000 22 Lifeguard Effectiveness: A Report of the Working Group Table 2 Number of Preventive Actions, Events Requiring Rescues, Drownings, Injuries, Costs and Estimated Savings for Every 10,000 Beach Patrons Maximum Estimates: Economic Cost Comprehensive Cost Preventive actions 97.4 Number of rescues if no preventive action 35.0 Number of (nonincapacitating) injuries if no rescues 12.6 $175,450 $450,600 Number of drownings if no rescues 5.6 $4,431,640 $15,650,960 Total Savings for each 10,000 Patrons $4,607,090 $16,101,560 Minimum Estimates: Economic Cost Comprehensive Cost Preventive actions 97.4 Number of rescues if no preventives 4.9 Number of (nonincapacitating) injuries if no rescues 0.73 $10,150 $26,080 Number of drownings if no rescues 0.25 $192,350 $679,300 Total Savings for each 10,000 Patrons $202,500 $705,380 Lifeguard Effectiveness: A Report of the Working Group 23 Department of Health and Human Services Centers for Disease Control and Prevention SAFER • HEALTHIER • PEOPLE,, Attachment (7) LIFEGUARD SERVICES 2018/2019 FULL TIME GUARD SUPERVISOR PAY AND BENEFITS $ 59,157 ONE FULL TIME GUARD EQ 29,784 OCT 1 - MAY 27 (34 WEEKS) FOUR PART TIME GURDS SLOTS PER WEEK 12,512 MAY 28 — SEP 3 (15 WEEKS) SIX PART TIME GUARDS SLOTS PER WEEK 8,280 SEP 4 — SEP 30 (3 WEEKS) FOUR PART TIME GUARDS SLOTS PER WEEK 1,104 PART TIME COVERAGE FOR 4 WEEKS VAC 1,840 PART TIME COVERAGE EXTENDED HOURS 5,000 TOTAL PAYROLL FOR SS/MED 98,606 SS/Med @ 7.65% 7,543 SUPPLIES AND TRAINING 4,000 4 WHEELER MAINTENANCE 1,500 TOTAL CONTRACT: $ 130,720 REIMBURSABLE ADDITIONAL HOURS and TAXES NOT to EXCEED $12,500 INSURANCE $ 6,500 TOTAL PAYROLL FOR W.C. 98,606 W.C. AT 2.09% 2,061 CAPITAL EQUIPMENT 10,000 Replacement 4 wheeler TOTAL OUT OF REIMBURSABLE: $31,061 TOTAL COST FOR SERVICE: $161,781 Admin(I)\F1\Lifeguard1617 [City Seal] City of Cape Canaveral City Council Agenda Form City Council Meeting Date: 05/21/2019 Item No. 9 Subject: Discuss opportunities to allow "Food Trucks" or any other Mobile Food Vendor in the City limits of Cape Canaveral. Department: City Council Summary: Due to the community interest and support of private property rights our Mayor and Council should consider allowing food trucks in the City limits to help expand economic growth and opportunities for the entire community. The City Vision Statement supports commerce and a unique mix of uses, sidewalks and umbrella covered cafe tables at restaurants and bistros where friends gather, interact and enjoy drinks and dinner. The last public discussion regarding food trucks was held at the December 13, 2017 Planning and Zoning Advisory Board Meeting where the recorded minutes confirmed the Board's opposition to drafting an ordinance to allow Food Trucks in the City limits of Cape Canaveral. As stated above, not allowing local owners the ability to use their property in a safe way with the presence of food trucks/mobile food vendors may limit our ability to expand economic growth and fulfill the Vision Statement of Cape Canaveral. Further, opposing this type of use on a property based on the claim that it will negatively impact the economic success of local Cape Canaveral based businesses (restaurants) should be considered after evaluation a form of local protectionism. Aggressive policies or lack there of that due not promote a free market can increase the costs on consumers while reducing the variety of options for our residents and visitors. Submitting Council Member: Wes Morrison Date: 5/9/2019 Recommendation to Mayor & City Council Members: Direct City Attorney to draft an Ordinance to allow Food Trucks or any other Mobile Food Vendor within the City Limits of Cape Canaveral to be considered at a future City Council Meeting. Attachment(s): 1. 7 Myths and Realities about Food Trucks 2. How Food Trucks and Carts Stack Up to Restaurants on Sanitation 3. Fort Pierce Food Trucks Lawsuit 2019 h 0 • SEUEfl MYTHS ROD REALITIES ABOUT FOOD TRUCHS. WHY THE FACTS SUPPORT FOOD -TROCH FREEDOM J I.EGR«Zf STREET- FOOD 1 1. *NI Attachment 1 Published by the Institute for Justice's National Street Vending Initiative Authored by Bert Gall & Lancee Kurcab November 2012 SEUEf IT1YTHS Af1D REALITIES ABOUT FOOD TRUCHS: WHY THE FACTS SUPPORT FOOD-TRUCH FREEDOM By Bert Gall and Lancee Kurcab1 Food trucks continue to grow in popularity throughout the country. But as the Institute for Justice detailed in a recent report, some cities have responded by enacting and enforcing laws that do not advance public health and safety, and serve no other purpose than to "protect" restaurants from competition from food trucks.2 Arguing in favor of these laws—such as those that bar food trucks from operating in popular commercial areas or that prohibit food trucks from parking within several hundred feet of any restaurant—their proponents rely upon several myths. Below, we list the seven most prevalent of these myths and, using facts and real-world examples, debunk them. MYTH #1: The presence of food trucks is harmful to a city's restaurant industry. REALITY: The presence of food trucks does not hurt a city's restaurant industry, but instead helps it. Claims that food trucks spell doom for local restaurants are not only unsupported,3 but are also contradicted by the experiences of Los Angeles and Austin, which have enthusiastically welcomed mobile -food entrepreneurs. For example, the continued growth of the food -truck industry in Los Angeles—the birthplace of the modern food truck—in no way diminished L.A.'s vibrant restaurant scene. In fact, customers in a recent Zagat survey reported that they think the restaurant scene has continued to improve.4 In Austin, local restaurateurs and economists generally agree that the city's robust mobile -food scene has boosted the restaurant industry as a whole.5 Citing Los Angeles and Austin as positive examples, a group of restaurateurs in Pittsburgh have joined together to ask their city to get rid of restrictive regulations that have stifled the growth of the food -truck industry there because they have recognized that the "cities with the most vibrant food -truck scenes also have booming restaurant industries.i6 Indeed, food trucks all over the country are helping to bolster the local restaurant industry in (at least) three specific ways: 1. Food trucks' presence increases the number of customers available to restaurants. Austin's food trucks and food trailers are a rising tide lifting all boats in the local restaurant industry; one way they have done so is by attracting more people—both new residents and tourists—into the city.' In Houston, restaurants have experienced increased business generated by food trucks parking nearby and drawing more people to the restaurants' neighborhoods. It is for this reason that restaurant owners have asked the Houston City Council to ease existing laws that make it difficult for food trucks to operate.8 And in Las Vegas, George Harris, the owner of Mundo, an award-winning upscale restaurant in Las Vegas, has observed that food trucks help his business by bringing new customers to the neighborhood.9 Furthermore, historical evidence suggests that banning food trucks from an area in which they currently operate will harm nearby restaurants by decreasing the number of potential customers. For example, when street vendors were banned from New York's Lower East Side and Chicago's Maxwell Street Market, brick -and -mortar businesses complained that they suffered lower revenues as a result.10 Simply put, food trucks draw people out of their offices and homes and into the community, opening their eyes to all of the meal options their neighborhood has to offer. 2. Food trucks provide restaurants with a great way to market and expand their business. All over the country, restaurant owners are launching their own food trucks. For example, the owners of Curried, an Indian restaurant in Chicago, started a food truck with the same name in order to better market the restaurant. Mission accomplished: "We've definitely seen an increase in business at the restaurant," says Scott Gregerson, Curried's managing partner." Jose Hernandez, general manager at POPS Cheesestakes in Las Vegas, says that the business at the restaurant's physical location has been boosted by the restaurant's food truck: "The truck has been great advertising.i12 Brian Pekarcik and Rick Stern, co-owners of Spoon and BRGR restaurants in Pittsburgh, just launched a BRGR truck for the same reason. "As brand recognition, it's a great advertising piece," they explained. "And we expect that it will drive customers to our restaurants.i13 Similarly, Paul Lee, owner of The Winchester restaurant in Grand Rapids, Mich., explained that he opened the What the Truck food truck to serve "as an extension of [T]he Winchester. It allows for us to reach a greater audience and provide something unique to the city."14 3. Food trucks often serve as incubators for new restaurants. Several restaurants got their start as food trucks: Many chefs with a great concept, but without enough capital to start their own restaurant, launched food trucks to bring their cuisine to customers. Finding success in the food -truck arena, these chefs then accumulated enough capital to launch their own restaurants. For example, the New York Food Truck Association has 42 members, and 40 percent of them—including Mexicue, Souvlaki GR and Schnitzel & Things—now also have brick -and -mortar establishments.15 These entrepreneurs are not an anomaly. Hundreds of other food -truck owners, including those profiled on the next page, have also opened new restaurants. Without the availability of the food -truck business model, these chefs might not have been able to open their restaurants. In sum, food trucks provide a boost to a city's restaurant industry. 2 Examples of Food -Truck Entrepreneurs Opening Brick -and -Mortar Establishments Austin: In 2006, Michael Rypka opened a small food trailer on South First Street in Austin called Torchy's Tacos. The trailer became so successful that he was able to expand: Torchy's Tacos now has eleven brick -and -mortar restaurants, not just in Austin, but also Dallas and Houston. Michael now employs about 450 people.16 Boston: Ayr Muir graduated from MIT, earned his MBA from Harvard and began his career working at McKinsey & Company. But in 2008, he left the corporate world to follow his dream of becoming an entrepreneur and launched Clover Lab Food Truck. His locally sourced vegetarian fare has been such a huge hit with customers that Ayr has now been able to launch a total of six trucks and two restaurants in the Boston area.17 He now employs over 140 people.18 Chicago: In 1963, Dick Portillo opened a six -by -12 -foot hot dog trailer on North Avenue in Villa Park. Years later, Portillo's is a national brand—indeed, a brand that is nearly synonymous with the iconic Chicago hot dog—with 47 locations in Illinois, Indiana and California. Portillo Restaurant Group is now the largest privately owned restaurant company in the Midwest, with over 4,000 employees.19 Cleveland: Chris Hodgson was inspired to bring affordable gourmet food to Cleveland when he visited taco trucks in New York City. His first food truck, Dim and Den Sum, was so successful that he launched a second truck—Hodge Podge—which received nationwide fame when it finished second in the Food Network's hit show, The Great Food Truck Race. Chris partnered with a restaurateur to open Hodges restaurant in downtown Cleveland, and it now employs about 50 people. 20 Seattle: In 2007, Chef Josh Henderson started serving classic American food, but with a gourmet twist, out of an Airstream trailer called Skillet. Skillet quickly became popular, in large part because of the delicious bacon jam in its gourmet burgers. In 2011, Josh opened up the Skillet Diner in the Capitol Hill neighborhood, and his business now includes catering and selling its bacon jam through retailers all over the country. He now employs almost 100 people.21 Washington, D.C.: Mike Lenard brought Korean fusion -style tacos to the nation's capital in August 2010 when he opened Takorean using a remodeled 1985 Ford step -van. Mike has now opened a permanent location at D.C.'s Union Market, serving up the same menu that made his truck so successful. Takorean was honored to be named one of Washingtonian Magazine's best food trucks in summer 2012, and the magazine recently billed the new Union Market location as one of 11 new restaurants its readers should visit.22 Mike currently employs nine people, and has imminent plans to hire five more employees if his sales continue their upward trend.23 3 MYTH #2: Trucks have an "unfair" advantage over restaurants because of their mobility. REALITY: It is true that food trucks' mobility allows them to serve customers in different parts of a city, but any advantage that this provides is offset by the many disadvantages of being a mobile operation. These disadvantages include: • Food trucks do not have a fixed location, which is a source of business goodwill and stability for restaurants.24 After all, it is easier to build a customer base when the customer can always be sure where the business is located. But food trucks have no guarantee that they will be able to find a parking location that is both available and convenient for their customers.25 • Food trucks—unlike restaurants, which can offer climate -controlled dining rooms to their customers—are completely at the mercy of the weather. If it is raining, snowing or extremely hot, people will be far less inclined to stand in line at a food truck. Instead, they will go to a place where they can eat inside.26 Many trucks even take a hiatus during the winter because of the weather.27 Ice and snow present dangerous conditions, and spending hours each day in freezing temperatures can significantly affect their most valuable asset— their truck.28 • Food trucks cannot offer seating and table service for their customers. • Food trucks have extremely small kitchens that can hold far less inventory than restaurant kitchens; this means that food trucks can sell less food and must have a smaller menu. Additionally, preparing food in a small, cramped food -truck kitchen is more difficult than preparing food in a larger restaurant kitchen.29 • Food trucks cannot serve as many customers during the day as can an average restaurant. For example, once a food truck finds a parking space, it can take 30 minutes for set-up, and a similar amount of time to clean and pack up after the meal service is over.30 This means that a truck that parks in a space with a two-hour parking limit only has around an hour to serve customers. That's less than half the time that a restaurant can generally allot to lunch service, and less than a quarter of the time that a restaurant can generally allot to dinner service.31 • Food trucks, unlike restaurants, can, and often do, break down. Until repairs are made, the truck cannot serve customers, employees miss out on their shifts and the food in the commissary refrigerator may spoil.32 • A liquor license is a big moneymaker for restaurants,33 but food trucks are usually unable to obtain that license under local and state laws because they do not meet the requirement of having a fixed location.34 4 In a free-market system, there really are no "unfair" advantages between business models because all are free to be used by anyone. Even if a food truck's mobility could create an "unfair" advantage over restaurants, the many disadvantages described above swamp that one small advantage. MYTH #3: Trucks have an "unfair" advantage over restaurants because they are not subject to the same set of costs. REALITY: Restaurants generally do have higher costs than food trucks (e.g., buying or leasing restaurant space), but their return for paying all of those costs is getting the benefit of a fixed location and thus avoiding the many disadvantages that food trucks have. Furthermore, food trucks are in fact subject to many of the same costs that restaurants face. For example, food -truck owners must purchase liability insurance and pay license and permit fees.35 Like other small business owners, truck owners must pay sales taxes, income taxes and payroll taxes.36 They must spend money to pay and train new employees, to purchase inventory and to market their business.37 Restaurants must either pay property taxes or rent, and the same is true for food trucks: Most cities require that food trucks associate with a commissary in which they can park and clean their truck, store their inventory and partially prepare their food.38 This means that food -truck owners must (in addition to paying taxes on their vehicle) either pay property taxes or rent on the commissary space. There are other costs that food trucks have to pay that restaurants do not. For example, food -truck owners must spend money to purchase their trucks. A brand-new truck can cost anywhere from $75,000 to $300,000; a used truck can cost between $15,000 and $99,000.39 Owners must spend additional funds to outfit their trucks and maintain them. Truck owners must also pay for the costs of fuel (between $250 and $500 a month),40 propane, parking, rental fees or building costs for a commissary or commercial kitchen,41 as well as fees required to park in food -truck lots and to participate in festivals and other community events.42 Finally, trucks that operate within more than one jurisdiction must pay for permits and fees within each of those jurisdictions.43 In short, food trucks forgo the higher costs of operating a restaurant by forgoing all of the advantages that owning a restaurant provides. Food trucks are nonetheless subject to a whole host of costs, some of which restaurants do not have to pay. MYTH #4: Food trucks have an "unfair" advantage over restaurants because operating a food truck is easy. REALITY: Just like running a restaurant, running a food truck is extremely hard work. Ignoring all of the disadvantages and costs of the food -truck business model, many people still believe that, in the real world, running a food truck—unlike running a restaurant—is an easy way to make a lot of money. Try telling that to Miley Holmes, who runs the Easy Slider food truck in Dallas. 5 She explains that "[t]he biggest misconception about this business is that it's a way to get rich quick. Margins are tight, space is limited, and the market is unpredictable. So the reality is that you are never going to make a fortune from running a food truck." Holmes describes workdays that begin at 9 a.m. and stretch to 3 a.m.: "People forget that we've been prepping for hours before our doors open," Holmes said, "and we spend hours cleaning after we're closed. And we do it all two or three times a day, sometimes 14 or 15 days in a row!" Furthermore, "[t]here is no such thing as time off, just time off the truck. We're constantly emailing, making phone calls or sourcing product.i44 Holmes' 18 -hour workdays are not atypical. Even for operators who do a single meal service per day, the typical workday can range between 17 to 20 hours.45 And make no mistake, the work is hard. Indeed, many people who experience running both restaurants and food trucks believe that running the latter is at least as difficult—or more difficult—than running the former: • Celebrity Chef Ludo Lefevre has been a successful chef at some of Los Angeles' best restaurants and in 2010 he opened his critically acclaimed LudoTruck, which serves "impossibly juicy... fried chicken [that] is pretty close to the godhead," according to one famous critic.46 Ludo is undoubtedly well-positioned to compare the difficulty of running a restaurant with that of running a food truck. As he points out, much of the work is the same: "People don't realize [that a food truck] is like a restaurant. You need to rent a commissary kitchen, hire a staff, and prep the staff. It's the same headache of a restaurant. It's not easy." And he notes at least one way in which running a food truck is more difficult: "At the restaurant, you have a big walk-in; you can always go and get some more vegetables." But with a food truck, "Sometimes our commissary kitchen is far away, and sometimes we're going to run out of food. There's nothing we can do.i47 • Luke Holden started his Luke's Lobsters restaurant in New York City in 2009, and he opened three more brick -and -mortar locations before launching his food truck, Mobile Nauti, which topped Zagat's ratings of New York's food trucks for two consecutive years. For Holden, it's clear that his food truck is "more difficult to manage" than his restaurants. He says that his truck "has been more of an outreach tool than a cash-flow tool. There are a lot of inherent struggles that come with operating a truck. You can't determine what the weather will do or parking issues. It's a difficult business to build stability in, and if you can't build stability in, it's harder to staff.i48 • David Schillace owns New York's Mexicue restaurant, with two brick -and -mortar locations and a food truck. Based on his experience, "Hands down, bricks -and -mortar is easier." He explains, "Running three or four trucks, then working sixteen hours a day, is a nightmare. And it's still not going to make you rich." He notes that finances are a lot less predictable and stable with food trucks because people tend to order more food at a restaurant than at a food truck.49 In sum, running a food truck is hardly an easy job. Indeed, given all of the difficulties encountered by food -truck owners, it isn't surprising that many of them want to transition from the food -truck business model to the more stable restaurant business model, where issues such as the weather and inventory limitations are no longer constant obstacles.5° 6 MYTH #5: Food trucks are unsanitary "roach coaches." REALITY: According to the available evidence, food trucks are generally just as clean and sanitary as restaurants. Just like restaurants, food trucks are subjected to health inspections on a regular basis. It is often the case that food -truck operators are inspected more frequently than their brick -and -mortar counterparts.51 Indeed, for a forthcoming report, the Institute for Justice reviewed health department sanitation grades in Los Angeles from May 2009 through May 2012 and found that, on average, the food trucks in that city are just as clean and sanitary as restaurants. MYTH #6: Food trucks cause harmful sidewalk congestion. REALITY: No evidence supports the assertion that food trucks cause harmful sidewalk congestion. Although critics of food trucks complain that they cause harmful sidewalk congestion, there is no evidence to support that claim. To test it, the Institute for Justice collected original data in Washington, D.C. Researchers measured foot traffic and congestion in locations where food trucks were present on several different days, in different locations, and during the busy hours surrounding lunch. They found that the presence of a food truck did not drastically increase foot traffic on the sidewalk. In fact, the average time it took a pedestrian to travel the block varied by only one second when a food truck was added.52 Furthermore, the researchers documented a phenomenon that is common to anyone who has seen a food truck in action: Customers spontaneously form a single -file line alongside the edge of a sidewalk so that other pedestrians have plenty of room to pass by. Because it is in the interest of the food trucks to maintain positive relationships with neighboring businesses and the community, food -truck owners and operators encourage their customers to keep their lines orderly. The Food Truck Association of Metropolitan Washington has formalized this practice by adopting a code of conduct in which they have pledged to "mak[e] regular announcements reminding customers in line to keep the sidewalk and any building entrances clear so as not to impede public access.i53 And, of course, cities can pass a law, like Los Angeles has done, that instructs food trucks not to operate in a manner "which will interfere with or obstruct the free passage of pedestrians or vehicles along any such street, sidewalk or parkway."54 MYTH #7: Food trucks create a special trash problem because their customers are especially prone to littering. REALITY: Food -truck customers are not especially prone to littering, and food -truck operators act responsibly to ensure that trash is properly disposed. 7 Food trucks' customers—just like the customers of fast-food restaurants and people who eat their packed lunch outdoors—have the potential to generate litter after consuming their food, but there is no evidence that food -truck customers are more likely to litter 55 Food trucks are generally required by municipal laws to carry a trash receptacle for their customers' use or to pick up any litter near the truck.56 Moreover, food -truck operators often go beyond the requirements of the law to ensure that they leave the areas in which they operate cleaner then how they found them.57 Conclusion Food trucks do not have an "unfair" advantage over restaurants. The restaurant business model is more favorable than the food -truck business model in several ways, and food trucks actually help the local restaurant industry. There is no basis for the argument that restaurants need government intervention to "protect" them from food trucks. (And, as several federal courts have recognized, regulation for the sake of mere economic protectionism is constitutionally impermissible.58) Nor is there any basis for the notions that food trucks pose some special threat to public health and safety. Instead of creating public policy based on these myths, elected officials should allow food trucks to operate freely within their cities, subject only to reasonable health and safety regulations. Doing so is good for the local entrepreneurs, the local economy and the local community. For guidance in creating a good legal framework for food trucks, see the Institute for Justice's most recent legislative report, Food Truck Freedom: How to Build Better Food Truck Laws in Your City. For more on the benefits provided by food trucks and other street vendors, check out the Institute's 2011 report, Streets of Dreams: How Cities Can Create Economic Opportunity bv, Knockina Down Protectionist Barriers to Street Vending. Both of these reports are available at www.ii.ore/vending. 8 Endnotes 1 Bert Gall is a senior attorney at the Institute for Justice. He directs !Fs National Street Vending Initiative, a nationwide effort to vindicate the right of street vendors to earn an honest living by fighting unconstitutional vending restrictions in courts of law and court of public opinion. Lancee Kurcab serves as the Institute for Justice's outreach coordinator. Through her outreach efforts and grassroots organizing, she helps entrepreneurs fight for their right to earn an honest living free from protectionist regulation. 2 Norman, E., Frommer, R., Gall., B. & Knepper, L. (2011). Streets of Dreams: How Cities Can Create Economic Opportunity by Knocking Down Protectionist Barriers to Street Vending. Retrieved November 8, 2012 from htto://www.ii.ors/images/pdf folder/economic libertv/atl vending/streetsofdreams webfinal.odf. s Common reasons restaurants fail include not having a clear strategy, lack of flexibility, location, lack of capital, lack of knowledge and poor communication with consumers. Parsa, H. G., Self, J., Njite, D. & King, T. (August 2005). Why Restaurants Fail. Cornell Hotel and Restaurant Administration Quarterly, 46(3), 304-322. a About Los Angeles Food Trucks. Roaming Hunger, Retrieved October 31, 2012 from http://roaminahunger.com/la; (2011, September 11). Zagat Celebrates 25 Years in Los Angeles; 2,027 Restaurants Surveyed by 11,166 Local Diners, Zagat.com, Retrieved October 26, 2012 from http://www.zagat.conn/node/3695295. 5 Gaar, B. (2012, September 15). Food trailers bloom into key piece of Austin's economy. Austin -American Statesman, Retrieved October 26, 2012 from http://www.statesman.com/news/business/food-trailers-bloom-into- kev-piece-of-a ustin s-econ/nSLPx/. 6 Letter from Pittsburgh restaurateurs to Pittsburgh City Council, October 10, 2012. Gaar, 2012. 8 Dietrichson, M. (2012, September 19). Houston food truck ordinance taken to City Council. Houston Tomorrow, Retrieved October 26, 2012 from htto://www.houstontomorrow.org/livability/story/houston-food-truck- o rd i n a n ce-taken-to-city-council/. 9 Harris, G. (2012, October 11). Brick -and -Mortar Restaurants Should "Embrace" Food Trucks. Nevada News and Views, Retrieved October 26, 2012 from http://nevadanewsandviews.com/archives/17195. 10 Kettles, G. (2004). Regulating Vending in the Sidewalk Commons. Temple Law Review, 77(1), 31-32. 11 How My Restaurant Launched a Food Truck. NFIB, Retrieved October 31, 2012 from http://www.nfib.com/business-resources/business-resources-item?crosid=60625. 12 Harris, 2012. 13 Batz, Jr., B. & Parrish, M. (2012, October 4). New website, talks, law keep Pittsburgh's food truck scene moving forward. Pittsburgh Post -Gazette, Retrieved October 26, 2012 from htto://www.post- sazette.com/stories/life/food/new-website-talks-law-keep-pittsbu rshs-food-truck-scene-movi ns-forwa rd- 656055/#ixzz2AJ rL5 R51. 14 Rosalez, S. (2012, September 7). What the Truck supports local youth programs. The Rapidian, Retrieved October 31, 2012 from http://therapidian.org/what-truck-supports-local-vouth-programs. 9 15 Clark, E. (2012, July 11). Hell on Wheels: Why Food Truck Owners Are Increasingly Turning to Brick -and -Mortar Shops. New York Magazine, Retrieved October 26, 2012 from http://newvork.2rubstreet.com/2012/07/food- trucks-turn-to-stores-for-convenience-reliabilitv.html. 16 Lynch, L. (2012, June 29). Michael Rypka of Torchy's Tacos talks Expansion and Secret Menu. Texas Monthly Magazine, Retrieved October 2, 2012 from http://www.texasmonthly.com/blogs/eatmvwords/?p=7678; Gaar, B. (2012, September 15). Food trailers bloom into key piece of Austin's economy. Austin -American Statesman, Retrieved October 26, 2012 from http://www.statesman.com/news/business/food-trailers-bloom-into-kev-piece- of-a ustin s-econ/nSLPx/. 17 Tilak, V. How to be a New England Vegetarian in the winter. The Boston Globe, Retrieved November 9, 2012 from htto://www.bostonalobe.com/magazine/2012/11/03/how-new-enaland-vegetarian- winter/g5tsi4eafXirW3vwCaik4N/storv.html. 18 (2012, February 2). How They Work: Clover Food Lab. Wistia, Retrieved October 31, 2012 from htto://wistia.com/bloc/how-they-work-clover-food-lab/. 19 History: From Modest Beginnings To The Midwest's Largest Privately Owned Restaurant Group. The Portillo Restaurant Group, Retrieved October 29, 2012 from http://www.portillos.com/history/. 20 Goodman, V. (2012, April 20). Hodges Downtown offers some of the food trucks' playful fare. WKSU News, Retrieved October 15, 2012 from http://www.wksu.org/news/story/31324. 21 Evolved Cuisine. Skillet, Retrieved October 2, 2012 from http://skilletstreetfood.com/comoanv.pho. 22 Spiegel, A. (2012, October 10). 22 New (or Newly Improved) Places to Eat and Drink This Fall. Washingtonian Magazine, Retrieved October 29, 2012 from https://www.washinstonian.com/blogs/bestbites/food-restaurant- news/22-new-or-newly-improved-places-to-eat-and-drink-this-fall.php: Washingtonian Staff. (2012, July 5). Best of Washington 2012: Best Meals on Wheels. Washingtonian Magazine, Retrieved October 29, 2012 from http://www.washinstonian.com/articles/best-of/best-of-washinston-2012-best-meals-on-wheels/index.php. 23 Interview with Mike Lenard, owner of Torchy's Tacos, November 5, 2012. 24 Courtis, J. (1983). Business Goodwill: Conceptual Clarification Via Accounting, Legal and Etymological Perspectives. The Accounting Historians Journal, 10(2), 1-38. This article reviews what attributes lead to business goodwill; location is prominent among those attributes. 25 Clark, 2012. 26 Clark, 2012. 27 Myrick. R. (2012, October 9). Prepping Your Food Truck for Winter Storage. Mobile-Cuisine.com. Retrieved November 9, 2012 from http://mobile-cuisine.com/under-the-hood/food-truck-storage-tips/. 28 Myrick, R. (2011, December 15). Winter Food Truck Safety Tips. Mobile-Cuisine.com, Retrieved October 26, 2012 from http://mobile-cuisine.com/under-the-hood/winter-food-truck-safetv-tips/; Myrick, R. (2012). Running a Food Truck for Dummies. P. 216. [0 29 Trattner, D. (2011, September 28). Along for the Ride. Cleveland Scene Magazine, Retrieved October 26, 2012 from http://www.clevescene.com/cleveland/along-for-the-ride/Content?oid=2737264. 30 Gall, B. and Frommer, R. (November 2012). Food Truck Freedom: How to Build Better Food Truck Laws in Your City. P. 18, from www.ii.org/vending. 31 Fine, G. (1990). Organizational time: Temporal Demands and the Experience of Work in Restaurant Kitchens. Social Forces, 69(1), 98-99. The author notes that general lunch and dinner hours are between 11 a.m.-2:30 p.m. for lunch, and 5 p.m. -12 a.m. for dinner. 32 Weber, D. (2012). The Food Truck Handbook: Start, Grow, and Succeed in the Mobile Food Business. P. 14; Clark, 2012. 33 O'Toole, M. (2010, September 20). Path to Liquor License Often Bumpy. New York Times, Retrieved October 26, 2012 from htto://eastvillase.thelocal.nvtimes.com/2010/09/30/path-to-liquor-license-often-bumov/. 34 Food trucks cannot obtain liquor licenses in most jurisdictions, and the handful of jurisdictions in which trucks can obtain a liquor license have only granted them to trucks or carts that operate in a single location and are able to provide a defined outdoor dining area. See, e.g., Collins, G. (2011, June 9). What's Always Been Missing in Food Trucks: Alcohol. The New York Times, Retrieved October 31, 2012 from htto://dinersiournal.bloss.nvtimes.com/2011/06/09/what-vouve-always-wanted-in-a-food-truck-booze/; Rayle, S. (2012, April 23). Cartlandia—Portland's food carts gain a year-round liquor license. Examiner, Retrieved October 31, 2012 from htto://www.examiner.com/article/cartlandia-Portland-s-food-carts-gain-a-vear-round-liauor- license. 35 Gall and Frommer, 2012. 36 A helpful collection of links to state government websites detailing the tax obligations of small businesses can be found on the website of the U.S. Small business administration at htto://www.sba.sov/content/learn-about-vour- state-and-local-tax-obligations. Information on the federal tax obligations of employers can be found in the IRS Employer's Tax Guide at http://www.irs.gov/uac/Publication-15-%28Circular-E%29,-Emplover%27s-Tax-Guide. 37 Myrick, 2012. 38 Gall and Frommer, 2012, p. 26. 39 Myrick, 2012, p. 32-33. 40 Myrick, 2012, p. 217. 41 Weber, 2012, p. 100. 42 According to Matthew Geller, CEO of the Southern California Mobile Food Vendor's Association, "Most events charge 10% which drastically eats into [food trucks'] margins. Lots can cost $25 to $200 just for the privilege of serving hungry customers." Interview with Matthew Geller, November 8, 2012. 43 According to Matthew Geller, CEO of the Southern California Mobile Food Vendor's Association, "Many food trucks have multiple business licenses and health permits. In cities like Los Angeles, many of the trucks must obtain multiple city permits in order to serve the demand around Los Angeles County. Most trucks in the area have eight business licenses with an average cost of $250. Many trucks also serve multiple counties. Each county 11 requires a county health permit. Many trucks have two or three health permits with an average cost of $750 each." Interview with Matthew Geller, November 8, 2012. 44 Daniels, L. (2012, June 4). Dreaming of Starting a Food Truck? First Read This, Then Figure Out Your Goal. Dallas Observer, Retrieved November 8, 2012 from http://blogs.dallasobserver.com/citvofate/2012/06/dreaming of starting a food tr.pho. 45 Clover Food Truck 101. CloverFoodLab.com, Retrieved October 26, 2012 from http://www.cloverfoodlab.com/wp-content/uploads/2011/06/Food-Truck-101.pdf; Myrick, 2012, p. 10-11; Interview with Jon Goree, co-owner of Seoul Food, October 20, 2012. 46 Gold, J. (2010, February 26). 99 Things to Eat in L.A. Before You Die. LA Weekly, Retrieved October 26, 2012 from http://www.laweeklv.co m/2010-02-26/eat-d ri n k/99-th ings-to-eat-in-I-a-before-vou-die/10/%20mo%20th ica/. 4' Oches, S. (2012, October). Pedal to the Medal. QSR Magazine, Retrieved October 26, 2012 from http://www.asrmagazine.com/executive-interviews/pedal-metal?page=2µsite=575. 48 Zionts, S. (2012, March 1). Food Trucks' Rocky Roads to Success. Fox Business, Retrieved October 26, 2012 from http://smallbusiness.foxbusiness.com/entrepreneurs/2012/03/01/food-trucks-rockv-roads-to-success/. 49 Clark, 2012. so Moore, G. (2012, August 17). Free lunch in the Financial District? Not at these food trucks. Boston Business Journal, Retrieved October 26, 2012 from http://www.biziournals.com/boston/blog/bottom line/2012/08/food- truck-regulations.html?page=all. 51 Norman, Frommer, Gall and Knepper, 2011, p. 32; Armour, S. (2012, May 9). Gourmet Food Trucks Fight Inspectors' Perceptions. Bloomberg Businessweek, Retrieved October 26, 2012 from http://www.businessweek.com/news/2012-05-09/gourmet-food-trucks-fight-inspectors-perceptions#p1; (2012, July 19). Food Trucks Inspected for Safety," WBNS-10TV, Retrieved October 26, 2012 from http://www.l0tv.co m/content/stories/2012/07/19/colu mb us -food -trucks -i nspected-for-safetv.html. 52 Norman, Frommer, Gall and Knepper, 2011, p. 32. 9 3 Food Truck Association of Metropolitan Washington/D.C. Food Truck Association, Food Truck Code of Conduct, Retrieved October 18, 2012 from http://www.google.com/url?sa=t&rct=i&a=&esrc=s&source=web&cd=1&cad=ria&ved=0CB4QFIAA&url=http%3A% 2F%2Fwww.dcfoodtrucks.org%2Fdl%2FDCFTA Application.pdf&ei=1FmBUJ7iG6fC0QGOaoCQBA&usg=AFQICNFLCc fia82QmZe kfmabbZU U7oQ&sig2=nS0R5aCeFNXFRaRwVMhmVA. 9 4 See L.A. City Code § 56.08(c). ss Hermosillo, J. (2012). Loncheras: A look at the stationary food trucks of Los Angeles. Masters Thesis, Los Angeles: University of California. P. 8. Although police and city officials complained that loncheras increased litter, this is "contradicted by the reputation many seem to enjoy among their neighbors for maintaining their areas clean." 56 Gall and Frommer, 2012, p. 21. s' The Southern California Mobile Food Vendor's Association takes it upon itself to pay for street cleanup after First Fridays and other community events in which food trucks participate. Interview with Attorney Jeffrey D. Dermer, 12 counsel for the Southern California Mobile Food Vendor's Association, November 6, 2012. The Food Truck Association of Metropolitan Washington requires members to "keep the area around [their] vehicle clean and remove all trash at the end of [their] service period, leaving the location cleaner than when [they] arrived." Food Truck Association of Metropolitan Washington/D.C. Food Truck Association, Food Truck Code of Conduct, Retrieved October 18, 2012 from http://www.soosle.com/url?sa=t&rct=i&a=&esrc=s&source=web&cd=1&cad=ria&ved=OCB4QFIAA&url=http%3A% 2F%2Fwww.dcfoodtrucks.org%2Fdl%2FDCFTA Application.rdf&ei=1FmBUJ7iG6fCOQGOaoCQBA&uss=AFQICNFLCc fia82QmZe kfmrbbZU U7aQ&sig2=nSOR5aCeFNXFRaRwVMhmVA. 58 See, e.g., Merrifield v. Lockyer, 547 F.3d 978, 991 (9th Cir. 2008) (striking down regulatory regime because it "was designed to favor economically certain constituents at the expense of others similarly situated, such as Merrifield"); Craigmiles v. Giles, 312 F.3d 220, 229 (6th Cir. 2002) (invalidating a rule permitting only funeral directors to sell caskets because it was a "naked attempt to raise a fortress protecting the monopoly rents that funeral directors extract from consumers"); see also St. Joseph Abbey v. Castille,—F.3d—, No. 11-30756, 2012 U.S. App. LEXIS 22060, at *4 (5th Cir. Oct. 23, 2012) ([N]either precedent nor broader principles suggest that mere economic protectionism of a pet industry is a legitimate government purpose....") 13 Attachment 2 STREET ERTS SAFE ERTS 1 1 1 HOW f000 IRIJCIIS flOD CARIS SIRCII UP i0 RES1AURA1S 0n SAffl1A1I00 40 BY ROGELR C. ERICHS00 IJ JUf1E 2014 c 1 STREET RTS0 SRPE ERTS: W F i ESi BY CSRflI c UHflTS In SEE J I ER 0 0 n RTS STRC UP nViRiOD1 EXECUTWE summARV Street food, long a part of American life, has boomed in popularity in recent years. Yet an idea persists that food from trucks and sidewalk carts is unclean and unsafe. This report tests that com- mon, but unsubstantiated claim by reviewing more than 260,000 food -safety inspection reports from seven large American cities. In each of those cities, mobile vendors are covered by the same health codes and inspection regimes as restaurants and other brick -and -mortar businesses, allowing an apples -to -apples comparison. The report finds: • In every city examined—Boston, Las Vegas, Los Angeles, Louisville, Miami, Seattle and Washington, D.C.—food trucks and carts did as well as or better than restaurants. • In six out of seven cities—Boston, Las Vegas, Los Angeles, Louisville, Miami and Washington, D.C.—food trucks and carts averaged fewer sanitation viola- tions than restaurants, and the differ- ences were statistically significant. • In Seattle, mobile vendors also aver- aged fewer violations, but the differ- ence was not statistically significant, meaning mobile vendors and restau- rants performed about the same. The results suggest that the notion that street food is unsafe is a myth. They also suggest that the recipe for clean and safe food trucks is sim- ple—inspections. Just as sanitation inspections help assure the public that restaurants are clean and safe, they can do the same for mobile vendors. More burdensome regulations proposed in the name of food safety, such as outright bans and limits on when and where mobile vendors may work, do not make street food safer—they just make it harder to get. THE IIISTITUTE FOR JUSTICE Af1ALYZED THOUSAfDS OF If1SPECTIOf1 REPORTS COUERIf1G MOBILE UEf1DORS, RESTAURAf1TS Af1D OTHER PURUEYOR OF FOOD FROM SEUEf1 OF AMERICA LARGEST CITIES-BOSTOf1, LAS UEGAS, LOS Af1GELES, LOUISUILLE, MIAMI, SEATTLE Af1D WASHIf1GTO11, D.C. 4 HTROLJCTDO" America loves food trucks. These new mobile vendors are creating jobs, satisfying hunger and making downtowns cool again. But they are not an entirely new concept. Street vending has long been an entry point for entrepreneurship in America. During the Great Depres- sion, Americans pushed carts in the street to sell five cent apples.' Waves of immigrants sold oysters, pickles, kabobs, halal and more. Despite this country's deeply rooted history with street food and America's growing love for food trucks, some peo- ple have claimed that food trucks and food carts are unsanitary and nothing more than "roach coaches." Take, for example, a recent news story by Eric Flack, a reporter for Louisville's WAVE3, who asked if food trucks are "really all that clean?" In an apparent "gotcha" moment, Flack asked Connie Mendel— head of the local office in charge of food inspections—if she ate at food trucks. Mendel chortled at such an idea and said, "That's funny."' But "all that clean" compared to what? How do food trucks stack up to restaurants? Flack does not ask these questions or compare food trucks to any other food source except for this opinion from Mendel: "We feel you can operate safer from an actual building."3 Unfortunately, city officials often rely on such claims that brick -and -mortar restaurants are safer to justify restric- tions on both food trucks and carts, including outright bans on mobile vend- ing as well as limits on when and where vendors may sell. These laws not only push food trucks and carts out of cities, they also stifle entrepreneurship, destroy jobs and hurt consumers.4 As American culture shifts towards re -embracing street food, this report tests the claim—common but unsub- stantiated—that food trucks and carts are unsafe. The Institute analyzed thousands of inspection reports covering mobile vendors, restaurants and other purveyors of food from seven of Amer- ica's largest cities—Boston, Las Vegas, Los Angeles, Louisville, Miami, Seattle and Washington, D.C.' In each city, mobile vendors are covered by the same health codes and inspection regimes as restaurants, allowing an apples -to -apples comparison of sanitation practices.6 The results show that mobile food vendors, including food trucks and carts, are just as safe and sanitary as restaurants— often more so. 5 mETHOIS To examine differences between food trucks, carts and other types of food establishments—particularly restau- rants—this report relies on inspection data collected from government agen- cies in Boston, Las Vegas, Los Angeles, Louisville, Miami, Seattle and Washing- ton, D.C. The Institute requested data going back to 2008 or the first year with accessible data that included mobile ven- dors. Data were collected through part or all of 2012 or, in the cases of Boston and Louisville, through July 2013. In all, the Institute reviewed 263,395 inspec- tion reports across the seven cities. During the inspections, officials count the number of food -safety violations they observe.' For example, inspectors look for minor things like clean counters and proper labeling, bigger concerns like proper food storage and hand -washing facilities, and serious issues such as sick employees and spoiled foods. For each city, the Institute calcu- lated the average number of violations per establishment for each category of 6 food service—food trucks, restaurants and so on. These raw numbers are useful, but not sufficient for determin- ing how mobile vendors compare to brick -and -mortar establishments. Other factors, such as variations in traffic or greater frequency of inspections, could be driving any differences. Addition- ally, any differences in the raw numbers could be simple random chance—it just so happens that during a given period of time when a random group of establish- ments was inspected, one category of food service received fewer violations— instead of a genuine distinction. To control for factors that could muddy comparisons and to deter- mine whether the differences between mobile vendors and brick -and -mortar restaurants are genuine or mere ran- dom chance, this report relies on two types of statistical analyses. The first, fixed -effects OLS regression, provides the average number of violations for each food -service category compared to mobile vendors. In other words, the first type of analysis estimates how many more or fewer violations restaurants would receive, on average, than mobile vendors, after controlling for various factors.8 The second type of analysis, Poisson regression, provides a rate esti- mating how many times more or fewer violations each food -service category would receive, on average, compared to mobile vendors.' When looking at the rate of viola- tions, keep in mind that the average numbers of violations were low for all types of food service in all cities. Thus, some eye-popping comparisons are not as dramatic as they may appear. For example, it may be startling to see the Boston results below (Table 2) suggest- ing that restaurants received 385 percent more violations than food carts, but food carts averaged just one violation per cart, so 385 percent more is only about four violations per restaurant. In some cities, the data did not make it possible to distinguish between food trucks and food carts, so they were lumped together in one "mobile vendor" category. In others, trucks and carts are separate categories, so separate anal- yses compared each of them to restau- rants, grocery stores and so on. Further details about the analysis can be found in Appendix A, and Appendix B provides full regression results.'° MSULTS Across the seven cities, findings were consistent: Food trucks and carts are every bit as clean and safe as restaurants and other types of brick -and -mortar food estab- lishments. As Figure 1 shows, in recent years, violations per establishment were few, regardless of the category of food service. In six of the seven cities, violations by food trucks and carts ranged from just one to four violations per truck or cart, while restau- rants averaged just four to eight. The exception, Seattle, appears to have had more frequent violations for both mobile vendors (nearly 14 per vendor) and restaurants (almost 17 per restaurant), because the city's inspection regime weights each violation more than the other cities. ter *2"11 ACROSS THE SEUEf1 CITIES, FIf1DIf1GS WERE COf1SISTEflT: FOOD TRUCHS Af1D CARTS ARE EUERY BIT AS CLEAfI Af1D SAFE RS RESTAURAf1TS Af1D OTHER TYPES OF offiNif BRICH-FMD-MORTAR FOOD ESTABLISHmEnTS. 1111110 ■ 8 18 16 14 12 10 8 6 4 2 Figure 1: Ai Food -safety Violations by Category of Food Service 0 Boston Las Vegas Los Angeles Louisville Miami Seattle Washington, D.C. ('ll -July '13) ('09 -.July '12) ('09 -July '12) ('10 -July '13) ('08 -July '12) ('09 -.July '12) ('11-'12) Food Carts Food Trucks ■ Restaurants III Other Hotels Notes: In Louisville, Miami, Seattle and Washington, D.C., the "food truck" category includes both trucks and carts. Due to differing inspection regimes, comparisons across cities are not valid. Not only were violations infrequent, but mobile compared well to their brick -and -mortar counterparts, as shown in Figure 1, and this was confirmed by statistical analysis. In analyses for six of seven cities, food trucks and carts had fewer violations than restaurants, and the differences were statistically significant. In Seattle, even though mobile vendors had fewer violations on average than restau- rants, upon statistical analysis, the difference was not statistically significant. This means mobile vendors and restaurants in Seattle performed about the same. 3 BOSTOfI The Boston Inspectional Services Department, which inspects all food establishments for potential violations, provided inspection data for 2011 through July 2013. In that time, the department conducted 29,898 inspec- tions of food establishments, including trucks, carts, restaurants and other establishments such as grocery stores, cafeterias and caterers. Table 1 provides the average number of violations by establishment type. It also breaks out different types of violations as classified by Boston—critical foodborne, critical, non-critical and total. A critical foodborne violation refers to activities that are the most prevalent contributing factors to foodborne illness as identified by the Center for Disease Control—such as not posting consumer advisories and improper labeling of ingre- dients. A critical violation is one that is more likely than other violations to affect the public health—such as unclean food contact surfaces and improper sewage and waste water disposal. Non-critical violations will not seriously affect the public health; these are things such as adequate lighting and hair restraints. As Table 1 shows, violations were uncommon across all categories of food service, and both Boston's food trucks and carts outperformed restaurants, as trucks averaged 2.7 total violations, mobile food carts—hot dog stands and other sidewalk carts—just one, and restaurants 4.6. The story is similar when looking at different types of violations. Trucks and carts received fewer critical and non-crit- ical violations than restaurants. For critical foodborne violations, trucks and restaurants were comparable and carts received fewer violations, but all averaged less than one violation per establishment. These differences held up under statistical analysis, as shown in Table 2. Results show that Boston's food trucks averaged fewer total violations, critical violations and non-critical violations than its restaurants, and the differences were statistically significant. On critical food- borne violations, the difference between trucks and restaurants was not statistically significant, meaning they were essentially the same. Boston's food carts averaged fewer total violations, critical foodborne violations, critical violations and non-criti- cal violations than its restaurants, and the differences all were statistically significant. Table 1: Boston Food-safety Violations, 2011-July 2013* Average (Mean) Standard Violations Deviation Minimum Maximum Total Violations Food Trucks 2.68 2.90 0 18 Restaurants 4.56 4.46 0 41 Carts 0.98 1.53 0 10 Other 2.67 3.36 0 30 Critical Foodborne Violations Food Trucks 0.87 1.25 0 6 Restaurants 0.84 1.33 0 12 Carts 0.36 0.75 0 6 Other 0.47 0.93 0 9 Critical Violations Food Trucks 0.11 0.32 0 2 Restaurants 0.30 0.55 0 4 Carts 0.04 0.21 0 2 Other 0.17 0.43 0 4 Non-critical Violations Food Trucks 1.70 1.94 0 11 Restaurants 3.42 3.37 0 30 Carts 0.57 1.08 0 8 Other 2.03 2.60 0 23 *Data provided by Boston Inspectional Services Department and based on 296 inspections of 76 food trucks, 17,634 inspections of 2,813 restaurants, 1,447 inspections of 497 carts and 10,521 inspections of other food establishments. 11 Table 2: Estimated Differences in Food-safety Violations, Boston, 2011-July 2013 (Statistically Significant Results in Italics)* Average Rate of Average Rate of Violations Violations Violations Violations Compared to Compared to Compared to Compared to Food Trucks Food Trucks Food Carts Food Carts 1 a Total Violations Restaurants 1.87 more 69% more 3.39 more 386%more Other 0.19 fewer 2% fewer 1.33 more 181% more Critical Foodborne Violations Restaurants 0.03 more 4% fewer 0.45 more 136% more Other 0.37 fewer 48% fewer 0.06 more 28% more Critical Violations Restaurants 0.18 more 156% more 0.25 more 568%more Other 0.03 more 37% more 0.10 more 258% more Non-critical Violations Restaurants 1.65 more 101% more 2.70 more 535%more Other 0.14 more 19% more 1.19 more 275% more *Results listed derived from OLS and Poisson regressions. Because of the use of two different statistical analyses, the direction and significance for average violations and rate of violations may differ where the differences between trucks or carts and restaurants are small. Full regression results for total violations can be found in Appendix B." the table shows, all categories of food l R S U E G R S service had few violations, and both Las The Southern Nevada Health District, Vegas' food trucks and carts outper- which inspects all food establishments in formed restaurants, as trucks averaged Las Vegas, provided inspection data from 3.3 violations, mobile food carts—hot dog 2009 through July 2012. In that time, stands and other sidewalk carts—two, the agency conducted 84,816 inspections and restaurants seven. of food establishments in Las Vegas, Statistical analysis confirms these including trucks, carts, restaurants and differences, as shown in Table 4. Results other establishments such as grocery show that Las Vegas' food trucks and stores, cafeterias and food processors. carts averaged fewer violations than its Table 3 provides the average number restaurants, and the differences were of violations by establishment type.12 As statistically significant. Table 3: Las Vegas Food-safety Violations, 2009-July 2012* jiimAverage (Mean) Standard Minimum Maximum Violations Deviation Food Trucks 3.27 4.88 0 31 Restaurants 6.99 6.78 0 89 Carts 2.05 3.62 0 46 Other 4.39 5.08 0 100 *Data provided by the Southern Nevada Health District and based on 494 inspections of 163 food trucks,42,611 inspections of 8,670 restaurants, 1,993 inspections of 602 carts and 39,718 inspections of other food establishments. Table 4: Estimated Differences in Food-safety Violations, Las Vegas, 2009-July 2012 (Statistically Significant Results in Italics)* Average Rate of Violations Average Rate of Violations Violations Violations Compared to Compared to Compared to Food Trucks Compared to Food Carts Food Trucks Food Carts Restaurants 3.58 more 108% more 4.71 more 237%more Other 1.09 more 31% more 2.22 more 111% more *Results listed derived from OLS and Poisson regressions. Full regression results can be found in Appendix B. 14 UfFORTUIIATELY, CITY OFFICIALS OFTEfI RELY Ofl CLAIMS THAT BRICH-AnD-MORTAR RESTAURAfTS ARE SAFER TO JUSTIFY OUTRIGHT BATS Ofl MOBILE UEf1DIf1G AS WELL AS LIMITS Ofl WHET Af1D WHERE UEI1DORS MAY SELL. THESE LAWS fOT Of1LY PUSH FOOD TRUCHS Af1D CARTS OUT OF CITIES, THEY ALSO STIFLE EfTREPREfEURSHIP, DESTROY JOBS AI1D HURT COASUMERS. a FOR THOSE POLICYMAHERS COf10ERf1ED ABOUT HEALTH A(1D SAFETY, THEY SHOULD EfSURE-THROUGH If1SPECTIOf1S-THAT MOBILE FOOD UEf1DORS Alit -HELD TO THE SAME SAf1ITATIOf1 STAf1DARDS AS RESTAURAf1TS. Ifl THIS WAY, THE PUBLIC CAf1 Ef1JOY FOOD FROM UEf1DORS THAT IS BOTH DELICIOUS Af1D SAFE WHILE ALLOWIfG EfTREPREf1EURSHIP Af1D ECOf10MIC GROWTH TO THRIUE. violations were uncommon across all LOS A f1 G E l ES categories of food service.13 Both Los The Los Angeles County Depart- Angeles' trucks and carts outperformed ment of Public Health, which inspects restaurants, as trucks averaged 3.6 all food establishments for potential violations, mobile food carts—hot dog violations, provided inspection data stands and other sidewalk carts-2.4, for 2009 through July 2012. In that and restaurants 7.8. time, the department conducted 45,611 These differences held up under inspections of Los Angeles' food estab- statistical analysis, as shown in Table lishments, including trucks, carts and 6. Results show that both Los Angeles' restaurants. food trucks and food carts had fewer Table 5 provides the average violations than its restaurants, and the number of violations, showing that differences were statistically significant. Table 5: Los Angeles Food-safety Violations, 2009-July 2012* Average (Mean) Violations Standard Deviation Minimum Maximum Food Trucks 3.59 6.40 0 100 Restaurants 7.82 5.25 0 100 Carts 2.37 5.74 0 36 *Data provided by Los Angeles County Department of Public Health and based on 2,928 inspections of 601 food trucks, 42,089 inspections of 7,542 restaurants and 594 inspections of 236 carts. Table 6: Estimated Differences in Food-safety Violations, Los Angeles, 2009-July 2012 (Statistically Significant Results in Italics)* Rate of Restaurant Average Restaurant Rate of Restaurant Average Restaurant Violations Violations Violations Violations Compared to Food Trucks Compared to Compared to Compared to Food Trucks Food Carts Food Carts 4.48 more 120% more 5.65 more 237% more *Results listed derived from OLS and Poisson regressions. Full regression results can be found in Appendix B. 1? LOUISUILLE The Metro Health and Wellness Department in Louisville, which inspects all food establishments for potential vio- lations, provided inspection data for 2010 through July 2013. In that time, the department conducted 34,500 inspections of food establishments, including mobile food vendors, restaurants and other establishments such as grocery stores, caterers and cafeterias. The department does not distinguish between food trucks and mobile carts, so they were analyzed together as mobile vendors. Table 7 provides the average number of violations by establishment type.14 As the table shows, violations were rare across all categories of food service, and Louisville's mobile vendors outperformed restaurants, as vendors averaged 1.9 total violations and restaurants 4.4. Statistical analysis confirms the difference, as shown in Table 8. Results show that Louisville's mobile vendors averaged fewer violations than its restau- rants, and the differences were statisti- cally significant. Table 7: Louisville Food-safety Violations, 2010-July 2013* Average (Mean) Violations Standard Deviation Minimum Maximum Mobile Vendors 1.87 3.11 0 35 Restaurants 4.39 4.51 0 42 Other 3.44 4.08 0 40 *Data provided by Metro Health and Wellness Department and based on 648 inspections of 117 mobile vendors, 16,958 inspections of 2,540 restaurants and 16,894 inspections of other food establishments. Table 8: Estimated Differences in Food-safety Violations, Louisville, 2010-July 2013 (Statistically Significant Results in Italics)* Average Violations Rate of Violations Compared to Mobile Vendors Compared to Mobile Vendors Restaurants 2.44 more 128% more Other 1.35 more 82% more *Results listed derived from OLS and Poisson regressions. Full regression results can be found in Appendix B. t •/ '. liso ii, . to.% . - .; L.,„,,-4.--- 4'''4,,,- 2... -- ...,- .6., ',-4- il•- ,'. '(U.'. ..!7:,::, fil-1 k' 7 "71-"::-.4'• '14 % • . : r �.ta. 1.-i ,• - ! I • _ Agit tet• : ,_ .+' ,► �•! - — /F 4 'vl i' 1: ' :` : ,,,,Z -"- - 4 . .„.. .,., --, -- FIS 1 iff ' .4. 1 . ..-1 1 (;:tri ' kkellii -- . -: i 4, 0 1111 11 " '`' 40 • P • . ' 11 I Viiij a • • ,°-;,:?' _ _—.-0 - t, ._- . ir_ MIAMI The Florida Department of Busi- ness and Professional Regulation, which inspects Miami food establishments for potential critical and non-critical violations of the food code, provided inspection data covering 2008 through July 2012. In that time, the depart- ment conducted 25,463 inspections of food establishments in Miami, including mobile vendors (the department groups together food trucks and carts) and restaurants. Table 9 provides the average number of violations by establishment type. It also breaks out different types of viola- tions as classified by the department— critical, non-critical and total. Critical violations refer to both foodborne illness risk factors (such as foods improperly cooked and toxic substances stored improperly) and violations pertaining 2 to safety and good business practices (such as an unsafe water source and not displaying a current license). Non-critical violations, such as poor maintenance of surface areas and improper storage of cleaning equipment, are generally target- ing preventive measures. As Table 9 shows, both categories of food service saw few violations and Miami's mobile vendors outperformed restaurants, as vendors averaged 3.7 total violations and restaurants 8.2. The story is similar when looking at differ- ent types of violations. Food trucks and carts received fewer critical and non-crit- ical violations than restaurants. These differences held up under statistical analysis, as shown in Table 10. Results show that Miami's mobile vendors averaged fewer total viola- tions, critical violations and non-critical violations than its restaurants, and the differences were statistically significant. Table 9: Miami Food-safety Violations, 2008-July 2012* Average (Mean) Standard Violations Deviation Minimum Maximum Total Violations Mobile Vendors 3.71 3.62 0 31 Restaurants 8.15 7.97 0 69 Critical Violations Mobile Vendors 3.31 3.15 0 26 Restaurants 5.43 5.39 0 47 Non-Critical Violations Mobile Vendors .40 .94 0 10 Restaurants 2.72 3.25 0 36 *Data provided by Florida Department of Business and Professional Regulation and based on 1,627 inspections of 730 mobile vendors and 23,836 inspections of 3,959 restaurants. Table 10: Estimated Differences in Food-safety Violations, Miami, 2008-July 2012 (Statistically Significant Results in Italics)* Average Restaurant Violations Rate of Restaurant Violations Compared to Mobile Vendors Compared to Mobile Vendors Total Violations 4.19 more 117% more Critical Violations 1.96 more 61% more Non-critical Violations 2.24 more 597% more *Results listed derived from OLS and Poisson regressions. Full regression results for total violations can be found in Appendix B." 21 SEATTLE The King County Board of Health, which inspects all food establishments in Seattle for potential violations, provided inspection data for 2009 through July 2012. In that time, the board conducted 34,122 inspections of Seattle food estab- lishments, including mobile vendors, restaurants and hotels. The board uses mobile food service as a classification and does not separate trucks from carts, so they were analyzed together. Table 11 displays the average num- ber of violations by establishment type.16 As the table shows, Seattle's mobile vendors outperformed restaurants, as vendors averaged 13.6 total violations and restaurants 16.9. However, these differences disap- peared under statistical analysis, as shown in Table 12. Results show that the difference between Seattle's mobile ven- dors and restaurants was not statistically significant, meaning that mobile vendors and restaurants performed essentially the same. It is worth noting that Seattle's higher levels of violations, compared to other cities, likely result from an inspection regime that counts each violation based on the severity. For example a non-criti- cal violation may count as two, whereas a critical violation may count as 15. „Am • • Ahie 40,41r, • • i Table 11: Seattle Food-safety Violations by Establishment Type, 2009-July 2012* Average (Mean) Standard Deviation Minimum Maximum Violations Mobile Vendors 13.59 21.05 0 95 Restaurants 16.91 20.37 0 155 Hotels 1 7.06 I 11.47 I 0 I 65 *Data provided by King County Board of Health and based on 1,143 inspections of 139 mobile vendors, 32,230 inspections of 2,762 restaurants and 749 inspections of 63 hotels. Table 12: Estimated Differences in Food-safety Violations, Seattle, 2009-July 2012 (Statistically Significant Results in Italics)* Average Violations Rate of Violations Compared to Mobile Vendors Compared to Mobile Vendors Restaurants 1.51 fewer 9%fewer Hotels 6.89 fewer 60%fewer *Results listed derived from OLS and Poisson regressions. Full regression results can be found in Appendix B. 1 ci. . ....4. c r "01 46 "'gift - tfiliit • -' , 4 r1 . •• • '' ' i I r 23• WASHY GTOf1, D.C. The Washington, D.C., Department of Health, which inspects all food establish- ments for potential violations, provided inspection reports for 2011 and 2012. In that time, the department conducted 8,985 inspections of food establishments, including mobile vendors, restaurants and other establishments such as grocery stores and wholesalers. The Department does distinguish between food trucks and carts; however, the populations were too small to analyze separately and so were combined into one category. Table 13 provides the average num- ber of violations by establishment type. It also breaks out different types of violations as classified by D.C.—critical, non-critical and total. Critical violations refer to both foodborne illness risk fac- tors and public health interventions, such as foods cooked improperly and failure to display consumer advisories. Non-critical violations refer to good retail practices, such as the presence of insects and rodents and improper disposal of sewage and waste water. As Table 13 shows, violations were uncommon across all categories of food service, and D.C. mobile food vendors outperformed restaurants, as vendors averaged 1.8 total violations and restau- rants 4.3. The story is similar when looking at different types of violations. Mobile vendors received fewer critical and non-critical violations than restaurants. Statistical analysis confirms these differences, as shown in Table 14. Results show that D.C.'s mobile vendors averaged fewer total violations, critical violations and non-critical violations than its restaurants, and the differences were statistically significant. Note that while restaurants and other brick -and -mortar establishments received an estimated 10 times as many critical violations as vendors, this difference is not as large in reality as it may appear. Mobile vendors received a tiny fraction of a violation per vendor, and the other categories received fewer than two per establishment. Table 13: Washington, D.C., Food-safety Violations, 2011-2012* Average (Mean) Standard Violations Deviation Minimum Maximum L Total Violations Mobile Vendors 1.81 1.31 0 7 Restaurants 4.27 4.74 0 40 Other 3.83 3.84 0 22 Critical Violations Mobile Vendors 0.12 0.41 0 2 Restaurants 1.80 1.97 0 14 Other 1.45 1.63 0 10 Non-Critical Violations Mobile Vendors 1.69 1.14 0 6 Restaurants 2.47 3.26 0 26 Other 2.38 2.75 0 16 *Data provided by Washington, D.C., Department of Health and based on 133 inspections of 102 mobile vendors, 7,749 inspections of 2,762 restaurants and 1,103 inspections of other food establishments. Table 14: Estimated Differences in Food-safety Violations, Washington, D.C., 2011-2012 (Statistically Significant Results in Italics)* Average Violations Rate of Violations Compared to Compared to Mobile Vendors Mobile Vendors Total Violations Restaurants 1.63 more 94% more Other 1.55 more 89% more Critical Violations Restaurants 1.30 more 1,066% more Other 1.12 more 934% more Non-critical Violations Restaurants .34 more 23% more Other .44 more 28% more *Results listed derived from OLS and Poisson regressions. Full regression results for total violations can be found in Appendix B." 25 COCLJSDO" Thanks to low start-up costs, street vending is an ideal opportunity for entre- preneurs with big ideas but little capital. Not surprisingly, following the recession, the number of food trucks on the streets exploded, with vendors selling everything from ice cream and hot dogs to creme brulee and sushi. Consumers appreciate the diverse menus, low prices and conve- nience of mobile vendors. In the seven cities studied here, street food is every bit as safe as food from a restaurant. In each of these cities, food trucks, carts and restaurants are held to the same sanitation stan- dards, and trucks and carts did just as well if not slightly better during sanita- tion inspections than restaurants—and violations by all types of food businesses were rare. The notion that food trucks and carts are unsafe is simply a myth. Sensationalist news reports like the WAVE3 story misinform both the public and policymakers. The WAVE3 report caused an uproar, with custom- ers who bought tickets to an upcoming food -truck festival asking for refunds and some vendors saying new custom- ers are now more reticent to try their products.'$ Such misinformation has 26 also been offered to justify laws that unfairly restrict mobile vendors' ability to compete. But this report shows that it makes no more sense to shut down or burden food trucks or carts with anti-competitive regulations under the guise of food safety than it would to shut down or burden restaurants, hotels or grocery stores. It shouldn't be surprising that food trucks and carts are just as clean and sanitary as restaurants. Both business models rely on repeat customers, and few people are going to eat twice at a place that made them ill. With the rise of social media like Yelp, word of mouth about a business—whether good or bad—spreads further and more quickly than ever before. And one advantage of food trucks and carts is that it is easier to watch as your food is being prepared—something you simply cannot do at most restaurants. So consumers can rest assured that food trucks and carts are as clean as restau- rants, and in fact are often more so. For those policymakers concerned about health and safety, they should ensure—through inspections—that mobile food vendors are held to the same sani- tation standards as restaurants.19 In this way, the public can enjoy food from ven- dors that is both delicious and safe while allowing entrepreneurship and economic growth to thrive. Ifl THE SEUEfl CITIES STUDIED HERE, STREET FOOD IS EUERY BIT AS SAFE AS FOOD FROM A RESTAURAf1T. THE fOTIOf THAT FOOD TRUCHS Af1D CARTS ARE Uf SAFE IS SImP1Y A MYTH. IX fl: METHOtS To isolate the influence of establishment types (j3) on the inspection scores (Y) received, these analyses measured differences using OLS regression with fixed -ef- fects. Inspection scores were regressed on establishment types and dummy variables representing day of the week (0), month (X) and year (Q). Weekday, month and year reveal variability of inspections across time. Seattle and Washington, D.C., include a risk variable (W), which those cities use to identify the potential risk associated with an establishment dependent on the manner in which it prepares and serves food. For example, high-risk categories include establish- ments that handle raw ingredients extensively, like most sit-down restaurants; moder- ate -risk categories include establishments that have limited preparation, like a deli or coffee shop; and low-risk categories include establishments such as hot dog stands and convenience stores that primarily serve prepackaged or limited preparation foods. An establishment can be inspected once or multiple times in one year with little consistency across establishments. Additionally, the type of food served at or from an establishment determines the level of detail required during a health inspection, which means not all the inspection categories apply to every establishment. The establish- ment fixed effect (cD) isolates and eliminates the individual specific differences.20 Because sanitation scores are a count of the number of violations during an inspection and most inspections have few violations, a Poisson regression was also used. As with the OLS, inspection scores were regressed on establishment types and the time dummy variables. Standard errors were clustered by establishment to account for multiple inspections per business. The following is the OLS model for Boston: Y=130+rl (restaurants)+132 (other)+O+X+52+cD+E The Poisson model is: In (Y)=(30+(31 (restaurants)+132 (other)+O+X+52 "Y" represents inspection demerits with zero or no demerits being the best score. The 2e reference year is 2011 with the analysis covering 2011 through July 2013. j31 represents the coefficient for restaurants, and [32 represents the coefficient for grocery stores, cafete- rias, caterers, etc. The models were run separately for food trucks and carts. The OLS model for Las Vegas is: Y=130+rl (restaurants)+132 (other)+O+X+52+cD+E The Poisson model is: In (Y)=(30+(31 (restaurants)+132 (other)+O+X+52 "Y" represents inspection demerits with zero or no demerits being the best score and up to 100 demerits being the worst score. The reference year is 2009 with the analysis covering 2009 through July 2012. j31 represents the coefficient for restau- rants, and [32 represents the coefficient for grocery stores, processors, cafeterias, etc. The models were run separately for food trucks and carts. The OLS model for Los Angeles is: Y=130+rl (restaurants)+O+X+52+0+E The Poisson model is: In (Y)=(30+(31 (restaurants)+O+X+52 "Y" represents inspection demerits where zero is the best possible score.21 The analysis is from 2009 (the reference year) through July 2012. j31 represents the coef- ficient for restaurants. The models were run separately for food trucks and carts. The following is the OLS model for Louisville: Y=(30+(31 (restaurants)+132 (other)+O+X+52+cD+E The Poisson model is: In (Y)=130+131 (restaurants)+132 (other)+O+X+52 "Y" represents inspection demerits.22 The reference year is 2010 with the analysis covering 2010 through July 2013. j31 represents the coefficient for restaurants, and j32 29 represents the coefficient for grocery stores, cafeterias, caterers, etc. The OLS model for Miami is: Y=130+rl (restaurants)+O+X+52+cD+E The Poisson model is: In (Y)=(30+(31 (restaurants)+O+X+52 "Y" is the number of violations coded consistent with the other cities above, and [31 represents the coefficient for restaurants. The analysis is from 2008 (the reference year) through July 2012. The OLS model for Seattle is: Y=(30+1 (restaurants)+132 (hotels)+O+X+52+'P+cD+E The Poisson model is: In (Y)=(30+(31 (restaurants)+132 (hotels)+O+X+52+'P 30 "Y" is the number of inspection demerits with zero being the best possible score. The reference year is 2009 with the analysis covering 2009 through July 2012. R1 represents the coefficient for restaurants, and [32 represents the coefficient for hotels. Seattle also has a risk rank fixed effect (W). Seattle ranks establishments that sell pre-packaged food with limited preparation as the lowest, one, and establishments with complex food preparation and storage as the highest, three. The OLS model for Washington, D.C. is: Y=130+rl (restaurants)+132 (other)+O+X+52+IP+cD+E The Poisson model is: In (Y)=(30+(31 (restaurants)+132 (other)+O+X+52+'P "Y" is the number of violations. The analysis was run for 2011 and 2012. R1 represents the coefficient for restaurants, caterers, cafeterias and hotels, and [32 rep- resents the coefficient for grocery stores, corner stores and wholesalers. Like Seattle, Washington, D.C. has a risk rank fixed effect (IP) based on the District's ranking of establishments, where one is the least risky and five is the riskiest. 21 RPPE * HX Q: REGMSSDOI OJTPUT Table 15. Boston Food Trucks OLS Poisson Coefficient Robust SE p Coefficient Robust SE p Restaurants 1.872 0.253 0.00 0.527 0.107 0.00 Other -0.187 0.251 0.46 -0.020 0.109 0.86 1 Weekday _. idMi Tuesday -1.399 0.909 0.12 -0.261 0.287 0.36 Wednesday -1.514 0.906 0.10 -0.284 0.287 0.32 Thursday -1.523 0.907 0.09 -0.298 0.287 0.30 Friday -1.413 0.908 0.12 -0.240 0.287 0.40 Saturday -1.447 0.907 0.11 -0.253 0.287 0.38 Sunday -2.507 0.944 0.01 -0.867 0.324 0.01 Monthill February -0.046 0.117 0.69 -0.094 0.040 0.02 March 0.329 0.126 0.01 0.095 0.039 0.02 April 0.088 0.135 0.51 0.058 0.041 0.16 May 0.284 0.126 0.02 0.138 0.037 0.00 June -0.077 0.133 0.57 0.006 0.040 0.89 July -0.517 0.130 0.00 -0.111 0.042 0.01 August -0.140 0.132 0.29 -0.021 0.042 0.62 September -0.402 0.123 0.00 -0.151 0.043 0.00 October -0.153 0.128 0.23 -0.027 0.041 0.51 November -0.341 0.141 0.02 -0.027 0.044 0.54 December -0.273 0.152 0.07 0.009 0.048 0.85 _immii . 1 Year 2012 0.461 0.095 0.00 0.148 0.028 0.00 2013 0.335 0.116 0.00 0.129 0.034 0.00 Intercept 3.529 0.978 0.00 1.178 0.315 0.00 sigma_u 2.471 sigma_e 3.012 il rho 0.402 32 Table 16. Boston Carts OLS Poisson Coefficient Robust SE p Coefficient Robust SE p Restaurants 3.391 0.092 0.00 1.580 0.079 0.00 Other 1.334 0.087 0.00 1.033 0.082 0.00 Weekday Tuesday 0.231 0.149 0.12 0.438 0.171 0.01 Wednesday 0.123 0.147 0.40 0.415 0.171 0.02 Thursday 0.118 0.147 0.42 0.404 0.171 0.02 Friday 0.226 0.147 0.13 0.462 0.171 0.01 Saturday 0.181 0.148 0.22 0.447 0.171 0.01 Sunday -0.353 0.222 0.11 -0.099 0.235 0.67 I Month ilM1111111.6 "111.1111111 February -0.032 0.115 0.78 -0.090 0.040 0.03 March 0.358 0.126 0.00 0.101 0.039 0.01 April 0.102 0.131 0.44 0.058 0.041 0.16 May 0.269 0.122 0.03 0.135 0.037 0.00 June -0.058 0.129 0.65 0.012 0.040 0.76 July -0.492 0.126 0.00 -0.111 0.042 0.01 August -0.145 0.127 0.25 -0.031 0.042 0.47 September -0.393 0.122 0.00 -0.150 0.043 0.00 October -0.160 0.127 0.21 -0.027 0.041 0.50 November -0.330 0.138 0.02 -0.033 0.044 0.45 December -0.231 0.150 0.12 0.017 0.048 0.73 . Year 2012 0.450 0.092 0.00 0.145 0.028 0.00 2013 0.318 0.113 0.01 0.124 0.034 0.00 Intercept 0.387 0.182 0.03 -0.573 0.165 0.00 sigma_u 2.324 sigma_e 2.970 rho 0.380 33 Table 17. Las Vegas Food Trucks OLS Poisson Coefficient Robust SE p Coefficient Robust SE p Restaurants 3.575 0.287 0.00 0.732 0.096 0.00 Other 1.085 0.286 0.00 0.267 0.096 0.01 Weekday Tuesday 0.375 0.291 0.20 0.113 0.055 0.04 Wednesday 0.191 0.291 0.51 0.078 0.055 0.15 Thursday 0.123 0.290 0.67 0.064 0.055 0.24 Friday 0.048 0.290 0.87 0.051 0.055 0.35 Saturday -0.371 0.289 0.20 -0.026 0.055 0.63 Sunday -0.239 0.310 0.44 -0.051 0.060 0.39 Month Ill 1 Ai February -0.064 0.079 0.42 -0.006 0.015 0.68 March -0.161 0.079 0.04 -0.022 0.015 0.15 April -0.105 0.085 0.22 -0.015 0.016 0.37 May 0.030 0.088 0.74 0.015 0.016 0.36 June -0.055 0.082 0.50 0.003 0.016 0.83 July 0.166 0.087 0.06 0.040 0.016 0.01 August 0.322 0.095 0.00 0.076 0.018 0.00 September 0.028 0.086 0.74 0.013 0.017 0.44 October -0.176 0.087 0.04 -0.020 0.017 0.25 November 0.100 0.102 0.33 0.035 0.019 0.07 December -0.124 0.104 0.23 -0.007 0.020 0.72 Year 2010 0.107 0.039 0.01 0.021 0.008 0.01 2011 0.544 0.045 0.00 0.100 0.009 0.00 2012 1.306 0.060 0.00 0.231 0.011 0.00 Intercept 2.758 0.409 0.00 1.073 0.111 0.00 sigma_u 1.578 sigma_e 5.558 rho 0.075 34 Table 18. Las Vegas Carts OLS Poisson Coefficient Robust SE p Coefficient Robust SE p Restaurants 4.711 0.112 0.00 1.214 0.054 0.00 Other 2.221 0.110 0.00 0.748 0.055 0.00 Weekday Tuesday 0.359 0.276 0.19 0.110 0.054 0.04 Wednesday 0.181 0.275 0.51 0.076 0.054 0.16 Thursday 0.118 0.275 0.67 0.063 0.054 0.24 Friday 0.038 0.275 0.89 0.049 0.054 0.36 Saturday -0.362 0.274 0.19 -0.026 0.054 0.62 Sunday -0.204 0.295 0.49 -0.044 0.059 0.46 I Month iiMMIllih 1111M February -0.061 0.078 0.43 -0.005 0.015 0.71 March -0.160 0.078 0.04 -0.022 0.015 0.14 April -0.106 0.084 0.20 -0.015 0.016 0.34 May 0.038 0.087 0.67 0.016 0.016 0.32 June -0.049 0.081 0.54 0.004 0.015 0.82 July 0.176 0.086 0.04 0.042 0.016 0.01 August 0.340 0.094 0.00 0.080 0.018 0.00 September 0.059 0.085 0.49 0.019 0.017 0.25 October -0.170 0.087 0.05 -0.019 0.017 0.26 November 0.130 0.100 0.19 0.041 0.019 0.03 December -0.107 0.103 0.30 -0.003 0.020 0.88 . Year 1=111111 IIIIMI._ 2010 0.107 0.038 0.01 0.021 0.008 0.01 2011 0.549 0.044 0.00 0.103 0.009 0.00 2012 1.300 0.059 0.00 0.233 0.011 0.00 Intercept 1.618 0.294 0.00 0.591 0.076 0.00 sigma_u 1.569 sigma_e 5.524 rho 0.075 35 Table 19. Los Angeles Food Trucks OLS Poisson Coefficient Robust SE p Coefficient Robust SE p Restaurants 4.484 0.143 0.00 0.786 0.049 0.00 Weekday Tuesday -0.313 0.424 0.46 0.145 0.074 0.05 Wednesday -0.233 0.421 0.58 0.145 0.074 0.05 Thursday -0.187 0.420 0.66 0.144 0.074 0.05 Friday -0.242 0.421 0.57 0.133 0.074 0.07 Saturday -0.206 0.426 0.63 0.122 0.074 0.10 Sunday 1.110 0.516 0.03 0.248 0.089 0.01 Month .411 February 0.124 0.115 0.28 0.012 0.017 0.45 March 0.101 0.097 0.30 0.018 0.015 0.23 April 0.041 0.102 0.69 0.006 0.015 0.71 May -0.021 0.097 0.83 -0.006 0.014 0.70 June 0.081 0.110 0.46 0.018 0.016 0.26 July 0.251 0.128 0.05 0.030 0.018 0.10 August 0.326 0.123 0.01 0.033 0.018 0.06 September 0.533 0.121 0.00 0.069 0.017 0.00 October 0.282 0.135 0.04 0.025 0.019 0.19 November 0.104 0.132 0.43 0.011 0.019 0.55 December -0.141 0.120 0.24 -0.004 0.018 0.81 Year 2010 -0.402 0.067 0.00 -0.056 0.009 0.00 2011 -0.701 0.070 0.00 -0.094 0.010 0.00 2012 -0.829 0.090 0.00 -0.102 0.013 0.00 Intercept 3.721 0.450 0.00 1.178 0.091 0.00 sigma_u 2.430 sigma_e 4.633 rho 0.216 36 Table 20. Los Angeles Carts OLS Poisson Coefficient Robust SE p Coefficient Robust SE p Restaurants 5.648 0.237 0.00 1.214 0.105 0.00 Weekday Tuesday 0.254 0.393 0.52 0.264 0.074 0.00 Wednesday 0.440 0.391 0.26 0.275 0.073 0.00 Thursday 0.436 0.391 0.26 0.268 0.073 0.00 Friday 0.443 0.390 0.26 0.265 0.073 0.00 Saturday 0.402 0.394 0.31 0.245 0.074 0.00 Sunday 0.843 0.492 0.09 0.265 0.091 0.00 Month February 0.130 0.116 0.26 0.013 0.016 0.43 March 0.131 0.097 0.18 0.020 0.015 0.16 April 0.040 0.101 0.69 0.005 0.015 0.74 May 0.024 0.097 0.80 0.000 0.014 0.98 June 0.232 0.111 0.04 0.037 0.016 0.02 July 0.321 0.132 0.02 0.036 0.018 0.05 August 0.342 0.126 0.01 0.032 0.018 0.07 September 0.452 0.119 0.00 0.058 0.017 0.00 October 0.289 0.138 0.04 0.025 0.019 0.20 November 0.034 0.123 0.79 0.003 0.017 0.85 December -0.155 0.121 0.20 -0.004 0.018 0.84 Year 2010 -0.468 0.069 0.00 -0.064 0.009 0.00 2011 -0.849 0.070 0.00 -0.113 0.010 0.00 2012 -0.958 0.091 0.00 -0.118 0.012 0.00 Intercept 1.996 0.458 0.00 0.635 0.127 0.00 sigma_u 2.454 sigma_e 4.520 rho 0.228 3? Table 21. Louisville Mobile Vendors (Trucks and Carts) OLS Poisson Coefficient Robust SE p Coefficient Robust SE p Restaurants 2.441 0.164 0.00 0.826 0.076 0.00 Other 1.354 0.166 0.00 0.596 0.077 0.00 Weekday Tuesday 0.200 0.243 0.41 0.030 0.112 0.79 Wednesday 0.177 0.247 0.47 0.024 0.113 0.83 Thursday 0.102 0.246 0.68 0.016 0.112 0.89 Friday 0.095 0.256 0.71 -0.017 0.114 0.88 Saturday -0.019 0.273 0.94 -0.051 0.117 0.67 Sunday -0.044 0.215 0.84 -0.101 0.116 0.39 Month February 0.000 0.101 1.00 0.023 0.032 0.46 March -0.158 0.095 0.10 -0.058 0.032 0.07 April 0.151 0.141 0.28 0.069 0.035 0.05 May 0.208 0.188 0.27 0.067 0.043 0.12 June 0.060 0.113 0.60 0.027 0.030 0.37 July 0.009 0.097 0.93 0.009 0.029 0.75 August -0.356 0.222 0.11 -0.090 0.079 0.26 September 0.201 0.117 0.09 0.107 0.033 0.00 October 0.070 0.112 0.53 -0.009 0.034 0.80 November -0.099 0.103 0.34 -0.040 0.032 0.21 December -0.060 0.106 0.58 0.005 0.033 0.88 ll Year 2010 0.719 0.073 0.00 0.201 0.026 0.00 2011 0.606 0.113 0.00 0.160 0.037 0.00 2012 0.282 0.068 0.00 0.062 0.025 0.01 Intercept 1.352 0.346 0.00 0.523 0.137 0.00 sigma_u 1.913 sigma_e 3.729 rho 0.208 3 Table 22. Miami Mobile Vendors (Trucks and Carts) OLS Poisson Coefficient Robust SE p Coefficient Robust SE p Restaurants 4.191 0.126 0.00 0.773 0.032 0.00 Weekday Tuesday 2.922 0.378 0.00 0.868 0.105 0.00 Wednesday 2.524 0.371 0.00 0.826 0.105 0.00 Thursday 2.606 0.372 0.00 0.841 0.105 0.00 Friday 2.529 0.377 0.00 0.826 0.105 0.00 Saturday 2.205 0.374 0.00 0.775 0.105 0.00 Sunday 0.732 0.515 0.16 0.354 0.136 0.01 Month illi 11111Mr Milli. February 0.308 0.211 0.15 0.060 0.029 0.04 March 0.228 0.218 0.29 0.052 0.029 0.07 April -0.482 0.212 0.02 -0.042 0.031 0.18 May -1.080 0.213 0.00 -0.106 0.031 0.00 June -1.730 0.201 0.00 -0.255 0.031 0.00 July -0.215 0.231 0.35 -0.011 0.030 0.72 August -0.391 0.241 0.11 -0.023 0.032 0.47 September -0.565 0.239 0.02 -0.054 0.032 0.09 October -0.522 0.242 0.03 -0.053 0.032 0.10 November -0.598 0.272 0.03 -0.049 0.036 0.17 December -0.852 0.257 0.00 -0.107 0.035 0.00 Year 2009 -1.368 0.151 0.00 -0.154 0.017 0.00 2010 -1.487 0.225 0.00 -0.175 0.027 0.00 2011 -3.323 0.150 0.00 -0.435 0.019 0.00 2012 -3.495 0.213 0.00 -0.466 0.027 0.00 Intercept 3.533 0.438 0.00 0.761 0.112 0.00 sigma_u 2.877 sigma_e 6.570 rho 0.161 39 Table 23. Seattle Mobile Vendors (Trucks and Carts) OLS Poisson Coefficient Robust SE p Coefficient Robust SE p Restaurants -1.505 1.368 0.27 -0.094 0.111 0.40 Hotels -6.893 1.589 0.00 -0.915 0.191 0.00 Weekday Tuesday 0.103 2.951 0.97 0.292 0.256 0.25 Wednesday -0.849 2.963 0.77 0.264 0.256 0.30 Thursday -0.251 2.980 0.93 0.270 0.257 0.29 Friday 0.741 2.964 0.80 0.387 0.257 0.13 Saturday -0.596 3.003 0.84 0.279 0.257 0.28 Sunday -0.315 3.358 0.93 0.120 mame.283 0.67 I Month February -1.626 0.934 0.08 -0.085 0.070 0.22 March 0.898 0.932 0.34 0.102 0.078 0.19 April -2.009 0.894 0.03 -0.113 0.067 0.09 May -3.274 0.893 0.00 -0.286 0.072 0.00 June -2.652 1.026 0.01 -0.158 0.073 0.03 July -0.298 1.232 0.81 0.011 0.099 0.92 August -1.090 1.257 0.39 -0.028 0.090 0.76 September -5.733 1.042 0.00 -0.400 0.083 0.00 October -6.436 1.009 0.00 -0.522 0.093 0.00 November -5.098 0.976 0.00 -0.428 0.083 0.00 December -5.743 0.982 0.00 -0.409 0.084 0.00 . Year 2010 -0.135 0.621 0.83 0.007 0.056 0.90 2011 -0.801 0.585 0.17 -0.006 0.054 0.91 2012 -0.318 0.745 0.67 0.061 0.060 0.31 IRisk Rank 2 -3.243 0.822 0.00 -0.567 0.140 0.00 2/3 -8.459 1.727 0.00 -1.243 0.347 0.00 3 5.419 0.760 0.00 0.506 0.104 0.00 Intercept 12.828 3.140 0.00 2.313 0.267 0.00 sigma_u 8.730 sigma_e 15.340 rho 0.245 4 Table 24. Washington, D.C., Mobile Vendors (Trucks and Carts) OLS Poisson Coefficient Robust SE p Coefficient Robust SE p Restaurants 1.630 0.151 0.00 0.661 0.088 0.00 Other 1.550 0.169 0.00 0.636 0.092 0.00 Weekday Tuesday 0.732 0.918 0.43 0.224 0.305 0.46 Wednesday 0.837 0.913 0.36 0.325 0.148 0.03 Thursday 0.641 0.912 0.48 0.370 0.148 0.01 Friday 0.945 0.917 0.30 0.329 0.148 0.03 Saturday 0.739 0.919 0.42 0.399 0.148 0.01 Sunday 0.859 1.575 0.59 0.327 0.148 0.03 Month AIL February 0.113 0.258 0.66 0.248 0.182 0.17 March -0.024 0.248 0.92 -0.006 0.059 0.93 April 0.021 0.255 0.94 0.025 0.034 0.45 May 0.061 0.233 0.79 -0.013 0.032 0.67 June -0.142 0.241 0.56 -0.017 0.033 0.60 July 0.337 0.263 0.20 -0.006 0.032 0.85 August 0.396 0.246 0.11 -0.021 0.034 0.53 September -0.287 0.243 0.24 0.069 0.033 0.04 October -0.349 0.230 0.13 0.065 0.031 0.04 November -0.418 0.230 0.07 -0.089 0.033 0.01 December -0.524 0.252 0.04 -0.104 0.032 0.00 . Year 2012 -0.586 0.088 0.00 -0.147 0.033 0.00 . Risk Rank IMIIIIII 2 0.489 0.192 0.01 -0.174 0.035 0.00 3 1.344 0.193 0.00 0.374 0.063 0.00 4 2.051 0.273 0.00 -0.164 0.012 0.00 5 -0.162 0.472 0.73 -0.046 0.168 0.78 Intercept 1.110 0.934 0.23 0.168 0.055 0.00 sigma_u 0.000 sigma_e 4.719 rho 0.000 41 EflOTES 1 Public Broadcasting Service. "Timeline of the Great Depression." http://www. pbs.org/wgbh/americanexperience/fea- tures/timeline/rails-timeline/. 2 http://www.wave3.com/ story/22818583/health-department- worried-about-food-truck-saniation- safety. 3 http://www.wave3.com/ story/22818583/health-department- worried-about-food-truck-saniation- safety. 4 Norman, E., Frommer, R., Gall, B., & Knepper, L. (July 2011) "Streets of dreams: How cities can create eco- nomic opportunity by knocking down protectionist barriers to street vending." Institute for Justice: Arlington, VA. 5 Initially Las Vegas, Los Angeles, Miami, Seattle and Washington D.C. were cho- sen from the 50 largest cities in the U.S. because their sanitation records were accessible and included ways to distin- guish by establishment type. Later both Boston and Louisville were added after news reports suggested that food trucks 42 performed worse than restaurants during inspections. 6 Local codes are governed by state sanitation laws, which are mainly con- cerned with cleanliness, food sourcing and storage, food temperatures and employee health and knowledge. They also address vermin, refuse, consumer protection, utensils and equipment. Additionally, the seven municipalities studied all require food -truck and cart owners to work out of a commissary— shared commercial kitchen—where they must store food, containers and supplies as well as prepare food, clean utensils and dispose of liquid and solid waste. The commissaries, like restaurants and mobile vendors, must pass periodic health inspections to remain open. 7 In Las Vegas, Los Angeles, Louisville and Seattle, violations are given demerit values depending on the severity of the violation. For example, a foodborne violation may have a demerit of five whereas a business practice violation may have a demerit of one. In these cities, the sum of the demerits is the number provided by the agencies and is reported here as number of violations. 8 Analyses controlled for when an establishment was inspected—day of the week, month and year—because variations may occur with higher traffic and lower traffic days and with sea- sonal and yearly fluctuations in demand, weather, foods, pests and other fac- tors. The analyses also controlled for each individual establishment because some businesses may be inspected more often or have consistent issues based on something other than the type of food establishment they are. The analyses for Seattle and Washington, D.C., also controlled for risk categories assigned by the cities. These categories are assigned based on establishments' methods of food preparation and deliv- ery—pre-packaged versus fresh food, ice cream versus warm lunch entrees and so forth. Analyses controlled for these categories so that an abundance of high-risk, and therefore potentially high -violation, establishments in one category would not skew results. 9 The Poisson regression is commonly used for analyzing count data, which we have here (i.e., counts of viola- tions). However, the results of OLS regression tend to be easier to under- stand and are included here for ease of interpretation. 10 The full regression output for mod- els in Boston, Miami and Washington, D.C., using the numbers of critical and non-critical violations can be supplied upon request. 11 The full regression output for the models using the number of critical foodborne, critical and non-critical violations sepa- rately can be supplied upon request. 12 The number of violations here is actually the number of reported demer- its, where more severe violations receive more demerits. 13 The number of violations here is actu- ally the number of reported demerits, where more severe violations receive more demerits. 14 The number of violations here is actu- ally the number of reported demerits, where more severe violations receive more demerits. 15 The full regression output for the models using the number of critical and non-critical violations separately can be supplied upon request. 16 The number of violations here is actu- ally the number of reported demerits, where more severe violations receive more demerits. 43 1? The full regression output for the models using the number of critical and non-critical violations separately can be supplied upon request. 18 http://fatlip.leoweekly. com/2013/07/26/inspection-scores- suggest-Louisville-food-trucks-arent-as- sca ry-as-wave3-th i n ks/. 19 For more information on good food - truck laws see: Frommer, R. & Gall, B. (November 2012) "Food -truck freedom: How to build better food -truck laws in your city." Institute for Justice: Arling- ton, VA; http://ij.org/vending. 44 20 The OLS models were also run with- out the establishment fixed effects and the Poisson models were run with establishment fixed effects. The results of these models were not appreciably different from the ones used in this report. These results can be provided upon request. 21 These values were transformed from the original grade that removes demer- its from 100. 22 These values were transformed from the original grade that removes demerits from 100. 45 1 n OELR C. ERDCHSO Angela C. Erickson is a research analyst at the Insti- tute for Justice, where she works with the strategic research team conducting original social science research. Before joining IJ, Erickson was a research assistant at the Cato Institute. She holds a Master's in Public Policy from the University of Chicago and received a Bachelor's degree in economics and political science from Beloit College. The Institute for Justice is a nonprofit, public interest law firm that litigates to secure economic liberty, school choice, private property rights, freedom of speech and other vital individual liberties and to restore constitutional limits on the power of government. Founded in 1991, IJ is the nation's only libertarian public interest law firm, pursuing cutting-edge litigation in the courts of law and in the court of public opinion on behalf of individuals whose most basic rights are denied by the government. The Institute's strategic research program produces high-quality research to inform public policy debates on issues central to IJ's mission. Institute for Justice 901 N. Glebe Road Suite 900 Arlington, VA 22203 www.ij.org p 703.682.9320 f 703.682.9321 5/14/2019 Fort Pierce Food Trucks k INSTITUTE i f rJUSTICE LITIGATION BACKGROUNDER Fort Pierce Food Trucks Attachment 3 Food Truck Owners Challenge One of the Most Anti - Competitive Vending Restrictions in the Country Fort Pierce's business owners keep inviting food truck owners Benny Diaz and Brian Peffer to set up on their properties. The business owners know that legions of fans follow Benny's Taco Trap and Brian's Creative Chef on Wheels food trucks everywhere they go. But Benny and Brian cannot accept any invitations to serve food because Fort Pierce's city commission has made operating a food truck within 500 feet of any restaurant a crime. The law bans food trucks, even those on private properly, from operating within 500 feet of a restaurant or any business that sells food. Of course, in Fort Pierce, an unlimited number of restaurants can open up next to each other, and food trucks can open up next to as many brick -and -mortar stores as they like, provided that the stores do not sell food. But it is literally a crime for any food truck to ever come within 500 feet of any restaurant. The restriction was enacted at the request of restaurant owners to limit competition, and it has succeeded, making it almost impossible for food trucks to do business there. This law hurts just about everyone in Fort Pierce—citizens who want more food options, property owners who want to invite food trucks onto their properties, and the food truck owners themselves. Consumers love the choices provided in neighboring towns by food truck owners. Whether it is Benigno ("Benny") Diaz's Taco Trap truck or Brian Peffer's Creative Chef on Wheels truck, Fort Pierce's citizens would rather have these food trucks come to them than the other way around. And Benny and Brian would love to do so, just like they do elsewhere. But with all of the viable spots in Fort Pierce banned, that is not an option. What Fort Pierce's city commission is doing is not just wrong, it's unconstitutional. The Florida Constitution prohibits the government from picking winners and losers in the marketplace, which is exactly what this protectionist law does. That's why this group of entrepreneurs has teamed up with the Institute for Justice to fight for their right to earn an honest living. They have filed a lawsuit asking the court to strike down Fort Pierce's 500 -foot ban for violating the Florida Constitution. Operating a food truck is hard but rewarding work. For many, it is an opportunity to earn an honest living and become self- sufficient. For others, it is a stepping stone to one day opening a restaurant. And for others still, it is a chance to do something they love. The ban on food trucks hurts real people like Benny and Brian. For them, like countless other Americans, opening a food truck has been an entry point for entrepreneurship.[i] Their food truck businesses have allowed them to serve delicious food to hungry consumers without needing a ton of money to get started. And in cities across the country, these https://ij.org/utility/case-print/?case-name=115490 1/3 5/14/2019 Fort Pierce Food Trucks hardworking entrepreneurs are welcomed with open arms.[ii] Take, for example, Benny Diaz. When Benny started using his grandmother's recipes to make unique taco creations at a local restaurant, patrons encouraged him to start his own business. After saving up some money and a lot of preparation, Benny opened his food truck, and his fans were thrilled. Benny's success is a testament to the entrepreneurial spirit, but no matter how badly Fort Pierce property owners and the general public want him there, the city's 500 -foot ban shuts him out. The ban is one of the widest and most draconian in the country, and it exists solely to protect brick -and -mortar restaurants from competition. Unfortunately, Benny and Brian's woes are all too common. While the national trend is in favor of allowing food trucks to give the public what they want,[iii] where they want it, some politicians choose to do the bidding of restaurant owners instead. These outliers, like Fort Pierce's city commission, would rather provide a private benefit to restaurant owners than allow the public to benefit from food trucks.[iv] That's not just wrong, it is unconstitutional. That is why the Institute for Justice (IJ) is teaming up with Benny and Brian to assert a constitutional challenge to Fort Pierce's 500 -foot ban. Fort Pierce's 500 -foot Ban Against Food Trucks Fort Pierce's government is openly hostile to food truck entrepreneurs. The Fort Pierce City Code provides that: "Mobile vending units must comply with the following minimum distance requirements, which shall be measured from the approved vending location to the nearest point of an established property line ... Five hundred (500) feet from a similar type business."[v] Even among the vanishing number of cities that are openly hostile to food trucks, this is one of the largest bans in the nation. In Fort Pierce, a food truck's ability to operate, even on private property at the invitation of the property owner, turns on whether a nearby brick -and -mortar business sells food. Before the city will issue a permit, the code enforcement department sends an officer to the proposed site and personally measures to make sure it is at least 500 feet away from any restaurants. Food trucks that violate the 500 -foot ban face $200 fines per violation[vi] and the revocation of their vending permit[vii] The 500 -foot ban does nothing to protect the public or help consumers. All it does is protect brick -and -mortar restaurants from competition, which is exactly what city commissioners admitted when they passed the law in September 2014. In the words of then -Commissioner Edward Becht, the 500 -foot ban exists because allowing food trucks to compete, and consumers to choose for themselves, would "hurt the brick -and -mortar businesses."[viii] Economic Protectionism Is Not a Legitimate Use of Government Power Fort Pierce's 500 -foot rule is unconstitutional. The Florida Constitution does not allow government officials to use their power in order to pick winners and losers in the marketplace. In the words of the Florida Supreme Court, "one economic group may not have the sovereign power of the state extended to it to the detriment of other citizens."[ix] By enforcing its 500 -foot ban against food trucks, the city is depriving food truck entrepreneurs of their constitutional right to pursue an honest living of their choosing. The Florida Constitution protects the right of individuals to earn an honest living free from unreasonable government interference. There is no legitimate justification for prohibiting a food truck from operating on a certain block because a brick -and -mortar business located almost two football fields away also sells food. The 500 -foot ban unfairly protects restaurants and other brick -and -mortar eating establishments from healthy competition, all while hamstringing job creation, depriving consumers of choice, and preventing property owners from deciding how best to use their property. Simply put, the government cannot impose burdens on food truck entrepreneurs for no legitimate reason. And limiting competition is not a legitimate reason. Under the Florida Constitution, the customers themselves, not the government, get to decide where the customers get their lunch. The Plaintiffs Benny Diaz https://ij.org/utility/case-print/?case-name=115490 2/3 5/14/2019 Fort Pierce Food Trucks Benny Diaz owns and operates the "Taco Trap" food truck. He started out making his unique tacos from his grandmother's recipes at a local restaurant, where the patrons encouraged him to start his own business. With a little start-up capital, a lot of passion, and a great -tasting product, he started his food truck to meet the demand of local consumers. Benny and his fans would like nothing more than for him to offer his tacos inside Fort Pierce just like he does in other towns, but the 500 -foot ban effectively prevents him from doing so. Brian Peffer Brian Peffer owns and operates "Creative Chef on Wheels." Brian's claim to fame is that regardless of what is on his menu, he can, and will, come up with any variation the customer requires to satisfy their tastes or dietary restrictions. Brian has been all over the world, working in the culinary industry as he traveled, and he has brought those skills home to provide a creative food truck experience. Brian simply wants to compete to provide his customers with the best food and service he can, but the 500 -foot ban stops him from competing before he gets the chance. The Defendants The Defendants are the City of Fort Pierce, Florida, along with its Mayor, all members of the City Commission, and Code Compliance Manager Peggy Arraiz, all of whom are named in their official capacities. The City Commission passed and enacted Fort Pierce's 500 -foot ban in September 2014. IJ's National Street Vending Initiative IJ's National Street Vending Initiative vindicates the right of street vendors to earn an honest living by fighting unconstitutional vending restrictions in courts of law and the court of public opinion. As it has done across the country (https://ij.org/issues/economic-liberty/vending/), IJ stands ready to challenge these anticompetitive restrictions, and it will help street vendors oppose attempts to use unconstitutional protectionist laws to shut them down. The Litigation Team The litigation team consists of IJ Florida Office Managing Attorney Justin Pearson and IJ Constitutional Law Fellow Dane Stu h lsatz. [i] Bonnie Berkowitz et al., What's in a Food Truck?, The Washington Post (May 14, 2018), https://www.wash i ngton post. com/graphics/2018/food/food-trucks/? nored i rect=on&utm_term=.559a8644577c. [ii] Lindsay MacNevin, The 12 Best Food Truck Cities in America, EscapeHere, https://www.escapehere.com/i nspiration/the-12-best-food-truck-cities-i n-america/. [iii] America's Food -Truck Industry is Growing Rapidly Despite Roadblocks, The Economist (May 4, 2017), https://www.economist.com/graphic-detail/2017/05/04/americas-food-truck-ind ustry-is-growing-rapidly-despite- roadblocks (https://www.economist.com/graphic-detail/2017/05/04/americas-food-truck-industry-is-growing-rapidly- despite-roadblocks); Jonathan Gold, How America Became a Food Truck Nation, Smithsonian Magazine (Mar. 2012), https://www.sm ithson ian mag.com/travel/how-america-became-a-food-truck-nation-99979799/. [iv] Kelsie Foreman, From Food Truck to Franchise: The Impact of Mobile Food on Commercial Real Estate, Utah Business (Jul. 7, 2017), https://www.utahbusi ness.com/food-truck-franchise-impact-mobile-food-commercial-real-estate/. [v] Fort Pierce, Fla., Code § 9-111(b)(1) (2018). [vi] Id. at § 2-206(a) (2018). [vii] Id. at § 9.95(b) (2018). [viii] Fort Pierce City Council Meeting, Aug. 4, 2014. [ix] See Liquor Store v. Continental Distilling Corp., 40 So. 2d 371, 375 (Fla. 1949). https://ij.org/utility/case-print/?case-name=115490 3/3 [City Seal] City of Cape Canaveral City Council Agenda Form City Council Meeting Date: 05/21/2019 Item No. 10 Subject: Discuss the addition of language to our ordinances in Section 2.05 which would give the City Manager explicit authority to approve correspondence methods and times between selected City Staff and the City Council. Department: City Council Summary: The Mayor and or City Council Members may have been instructed by the City Manager and or other Staff to communicate directly with certain personnel on a variety of City related business matters. While the intent may be in good, the City Code states the following regarding Prohibitions for the City Council: Section 2.05 (c.) Interference with administration. Except for the purposes of inquiries and investigations under section 2.09, the city council or its members shall deal with city officers and employees who are subject to the direction of the supervision of the city manager solely through the city manager, and neither the city council nor its members shall give orders to any such officer or employee, either publicly or privately. To improve correspondence and eliminate the risk of confusion between the Mayor, City Council, City Manager and or City Staff by communicating in a way which may result in a violation of the City Ordinances. We may consider working with the City Attorney and Staff to provide language in our ordinances that gives the City Manager the explicit authority to approve certain correspondence methods and times between selected City Staff and Mayor and the City Council. A proposed amendment to the ordinance could be as follows. (d.) The City Manager may provide an authorization form to the Mayor, City Council and Staff which would need to be signed by all parties involved on any approved communication times and formats. Submitting Council Member: Wes Morrison Date: 5/9/2019 Recommendation to Mayor & City Council: Direct the City Attorney to provide language in our ordinances that gives the City Manager the explicit authority to approve correspondence methods and times between selected City Staff and the City Council. Attachment(s): None