Loading...
HomeMy WebLinkAboutMinutes 07-20-2004 Regular CITY COUNCIL REGULAR MEETING CITY HALL ANNEX Co 111 Polk Avenue, Cape Canaveral, Florida TUESDAY July 20, 2004 7:00 P.M. MINUTES CALL TO ORDER: Mayor Randels extended his apologies to the City Attorney and the audience for not acting procedurally as Chair on subject matter in discussion at the previous meeting. ROLL CALL: Mayor Pro Tem Bob Hoog Council Member Steve Miller Council Member Jim Morgan Mayor Rocky Randels Council Member Richard Treverton Others Present: City Manager Bennett Boucher City Attorney Anthony Garganese City Clerk Susan Stills Public Works Director Ed Gardulski Recreation Director Nancy Hanson Building Official Todd Morley Attorney Jack Kirschenbaum and Attorney Mason Williams from the Law Firm of Gray, Robinson, presented a check to the City of Cape Canaveral for $54,212 as part of the settlement proceeds in the beach restoration case against the Army Corps of Engineers. Mr. Kirschenbaum presented Council samples of the first sand from the renourishment project. Mayor Randels informed that the beach re- nourishment program would continue for 50 years should erosion occur. PRESENTATION: Mayor Randels called on Ms. Judy Hale who presented the Summer Beautification Award to Ms. Judy Millet of Johnson Controls as the winner. Ms. Hale commented on the company's aesthetic efforts. Mayor Randels informed that Johnson Controls is also the prospective recipient of a National Wildlife Federation award. City of Cape Canaveral, Florida City Council Regular Meeting July 20, 2004 C Page2of9 CONSENT: 1. City Council Regular Meeting Minutes of July 6, 2004. 2. Outdoor Entertainment Permit for the National Night Out of August 3` Mayor Randels asked if any Council Member, staff or interested party desired to remove the item from the Consent Agenda for discussion There was no request to remove any items for discussion. A motion was made by Mr. Morgan and seconded by Mayor Pro Tem Hoog to approve Consent Agenda Items No. 1 and 2. A vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For Mr. Miller, For Mr. Morgan, For; Mayor Randels, For and Mr. Treverton, For. CONSIDERATION: 3. Florida Recreation Development Assistance Grant Agreement in an Amount of $112,500 for the Banana River Park. Mayor Randels informed that 5 -acres along the river just north of West Central Blvd. was initially purchased with a P -2000 grant. Mayor Randels commended Ms. Hanson for her work. The grant would be used to develop a soccer field, picnic facilities, playground, fishing platform, parking and landscaping on the 5- acres. Ms. Hanson introduced State Representative Bob Allen who would present the check to Mayor Randels. State Representative Allen remarked that it was good to see the Council working around a planned system of amenities and good use of recreational space in light of the City's growth and development. A motion was made by Mr. Treverton and seconded by Mr. Miller to approve the Florida Recreation Development Assistance Grant Agreement in an Amount of $112,500. A vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Miller, For Mr. Morgan, For Mayor Randels, For and Mr. Treverton, For. 4. Emergency Repair and Replacement of the Wastewater Treatment Plant Computer System. Mayor Randels related on the lightning damage done to the Plant's computer system in an amount of $46,704 and stated that authorization is needed for emergency service since this is not a budgeted item. Mr. Boucher informed that the insurance company would reimburse the City for any cost over the deductible. A motion was made by Mr. Treverton and seconded by Mayor Pro Tem Hoog to Approve the Emergency Repair and Replacement of the Wastewater Treatment City of Cape Canaveral, Florida City Council Regular Meeting July 20, 2004 Page3of9 Plant Computer System. A vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Miller, For; Mr. Morgan, For; Mayor Randels, For and Mr. Treverton, For. 5. Expansion of the Reuse Water Line in the 100 Blodc of Johnson Avenue. Mayor Randels informed that the project construction team was mobilized and could work at this location while in the vicinity. Mr. Gardulski is requesting $18,780 from the Enterprise Fund Impact Fees to pay for the 100 Block of Johnson Avenue and the Harbor Heights area. Mr. Gardulski replied to Mayor Pro Tem Hoog that this cost is for the reuse system not the irrigation line. Mr. Treverton asked if Mr. Gardulski had completed the concept plan for the landscape vegetation area around Yogi's Food and Beverage store. Mr. Gardulski affirmed. A motion was made by Mayor Pro Tem Hoog and seconded by Mr. Miller to Approve the Expansion of the Reuse Water Line in the 100 Block of Johnson to include Harbor Heights Stormwater Project at Central and Ridgewood Avenue in the Amount of $18, 870. A vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Miller, For; Mr. Morgan, For Mayor Randels, For and Mr. Treverton, For. ORDINANCES: Second Public Hearing: 6. Motion to Adopt: Ordinance No. 13 -2004; Amending Chapter 10, Article IV, of the City Code Pertaining to Sexually Oriented Business and Adult Entertainment, at second reading. The City Attomey read Ordinance No. 13 -2004 by title. AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, FLORIDA AMENDING CHAPTER 10, ARTICLE IV, OF THE CAPE CANAVERAL CITY CODE PERTAINING TO SEXUALLY ORIENTED BUSINESSES AND ADULT ENTERTAINMENT ESTABLISHMENTS, AND RELATED MATTERS; PROVIDING FOR A SHORT TITLE; PROVIDING FOR LEGISLATIVE PURPOSES, FINDINGS AND INTENT; PROVIDING FOR CONSTRUCTION OF THE ORDINANCE; RECOGNIZING OBSCENITY AS UNLAWFUL; PROVIDING FOR DEFINITIONS; PROVIDING FOR NOTICE; PROVIDING FOR PENALTIES, REMEDIES AND RELIEF; PROVIDING FOR AND REQUIRING LICENSES; PROVIDING FOR LICENSEE APPLICATIONS AND FEES; PROVIDING FOR CLASSIFICATION OF UCENSES; PROVIDING FOR APPROVAL AND DENIAL OF LICENSE APPLICATIONS; PROVIDING FOR CONTINUING DUTIES UPON LICENSED APPLICANTS; PROVIDING FOR INVESTIGATIONS; PROVIDING FOR REAPPLICATION; PROVIDING FOR TIME PERIODS FOR NOTICES, SUBMITTALS, FILINGS, AND DECISIONS; PROVIDING FOR RESPONSIBILITIES OF CITY AND GOVERNMENT OFFICIALS AND DEPARTMENTS; PROVIDING FOR EXPIRATION, LAPSE, CONTINUATION, TERMS, SUSPENSION, REVOCATION AND ENFORCEMENT OF LICENSES; PROHIBITING THE TRANSFER OF UCENSES; PROVIDING FOR (Isof ESTABLISHMENT NAME CHANGES; PROVIDING FOR LICENSE SUSPENSION AND REVOCATION PROCEDURES AND PROCEEDINGS; PROVIDING FOR APPEALS; PROVIDING FOR WORKER RECORDS, CUSTOMER CONTRACTS AND DAILY REGISTERS AND INSPECTION THEREOF; PROVIDING FOR DUTIES AND `s. 1 City of Cape Canaveral, Florida City Council Regular Meeting July 20, 2004 C oo Page 4 of 9 OBLIGATIONS; PROVIDING FOR PROHIBITED ACTIVITIES AND UNLAWFUL ACTS BY ESTABLISHMENTS AND BUSINESSES, WORKERS, OPERATORS, AND CUSTOMERS; PROVIDING FOR GENERAL REQUIREMENTS, DUTIES, OBLIGATIONS, REQUIRED ACTS AND PROHIBITIONS; PROVIDING FOR LICENSEE CONSENT; PROVIDING FOR SPECIFIC PROVISIONS RELATING TO VARIOUS CATEGORIES OF LICENSEES; PROVIDING REGULATIONS FOR SEXUALLY ORIENTED BUSINESSES; PROVIDING REGULATIONS FOR ADULT BOOK STORES /ADULT VIDEO STORES; PROVIDING REGULATIONS FOR ADULT THEATERS; PROVIDING REGULATIONS FOR ADULT PERFORMANCE ESTABLISHMENTS; PROVIDING REGULATIONS FOR COMMERCIAL BODILY CONTACT ESTABLISHMENTS; PROVIDING REGULATIONS FOR ESCORTS AND ESCORT SERVICE PROVIDERS; PROVIDING REGULATIONS FOR ADULT MODELING OR DISPLAY ESTABLISHMENTS; PROVIDING REGULATIONS FOR ADULT MODELS; PROVIDING REGULATIONS FOR PROHIBITED ACTS BY CUSTOMERS; PROVIDING FOR PROHIBITED ACTS BY WORKERS AND OPERATORS; PROVIDING FOR RECORDS AND REPORTS; PROVIDING OPERATIONAL REQUIREMENTS AND PROHIBITIONS; PROVIDING FOR USE OF RESTROOMS AND DRESSING ROOMS; PROVIDING FOR THE PROTECTION OF MINORS; PROVIDING FOR HOURS OF OPERATION; PROHIBITING SEXUAL ENCOUNTER BUSINESSES; PROVIDING IMMUNITY FROM PROSECUTION FOR CERTAIN GOVERNMENT OFFICIALS AND ACTS; RESTATING THAT ADULT ENTERTAINMENT ESTABLISHMENTS AND SEXUALLY ORIENTED BUSINESSES SHALL BE LOCATED IN INDUSTRIAL AREAS SUBJECT TO DISTANCE REQUIREMENTS FROM RESIDENTIAL AREAS, SCHOOLS, CHURCHES, AND PARKS AND RECREATIONAL AREAS; PROVIDING FOR REPEAL, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE. Attorney Garganese stated that minor corrections regarding numbering were made at the Council's direction. After the first reading of this ordinance, a group representing Smooth Sailing of Brevard and Weston, Garrou and DeWitt contacted the City Manager with subsequent studies and analyses. Representatives were present of the group to make presentation. 1 Mr. Lawrence Walters, representing Smooth Sailing, of the Law Firm of Weston, Garrou stated his address as 781 Douglas Avenue, Altamonte Springs. He stated that he also represented the Lido Cabaret. He remarked that Council was proceeding expeditiously with the ordinance without industry representation. He stated that his firm had previously extended an offer of a Pre - Annexation agreement to the City; however the City staff closed discussion. Attorney Walters stated that this ordinance would place his client at a competitive disadvantage. He expressed that if the City is trying to reach regulation in a Constitutional manner, it should seek input from those under regulation. Attorney Walters distributed handouts that reflected a chart of other cities and counties that have challenged his firm on adult entertainment issues. He expressed that these cities and counties also exceeded their provisions on adult entertainment regulation. He stated that these cities infringed on the First Amendment rights of the industry. Attomey Walters stated that this ordinance violates First Amendment Rights and he planned to introduce Mr. Bruce McLaughlin who had reviewed some of the studies submitted by the City Attomey. He stated that the data is insubstantial and does not represent what the City is attempting to regulate. He stated for the record that his client was not waiving any rights to challenge the ordinance by being represented at this time or pertaining to City of Cape Canaveral, Florida City Council Regular Meeting July 20, 2004 Page5of9 the advertisement. He replied to Mr. Morgan that discussion was closed on a Pre- Annexation Agreement one week prior to the First Public Hearing. He replied to the Council that his contact is primarily with the City Attorney since he is the legal counsel for the City. Mr. Boucher expressed that a Pre - Annexation Agreement was too soon since the annexation transition period extends to October 1, 2005. Attorney Walters replied that the City is not seeking to regulate any other types of business prior to annexation. Mayor Randels said that a Pre - Annexation Agreement might be premature in that the residents of Avon -by-the -Sea and Canaveral residents have not yet voted on Annexation_ Attorney Walters stated that a Pre - Annexation Agreement is conditional upon a successful annexation. He expressed that once passed; however, any prevailing issues were moot. Attorney Walters replied to Mr. Morgan that he expressed his general concerns to the City Attorney, but specific concerns had not yet been discussed. Attorney Garganese informed that Attomey Walters did contact him regarding a Pre - Annexation Agreement; however, the City Manager did not desire to take action prior to an annexation. Furthermore, there were other businesses in the Avon -by- the -Sea that would be subject to City regulations if annexed and no special circumstances were warranted. Lastly, Attorney Garganese stated that if there were specific concerns, this was the public forum to present those concems. C oe Mr. Bruce McLaughlin, of 900 Gulf Blvd., Suite 303, Indian Rocks Beach, Florida, on behalf of Smooth Sailing of Brevard, introduced himself as a land use planner and expressed his agreement with Attorney Walters. He stated for the record, that he holds a Master of Science degree in Urban and Regional Planning and is a member of the American Institute Certified Planners and was the Zoning Hearing Master for Hillsborough County for four years and has worked with Adult Use industries since 1988. Mr. McLaughlin stated that he submitted several volumes to the City Clerk as record copies for the Council's review with one more volume to submit after this meeting. He remarked that there were conflicts between what he found in the Statement of Findings in the draft ordinance and the findings in the Black Binders. In the Binders, the Chelsea's business survey was not referenced in the finding, a notebook is also not referenced in the findings and the City also does not have the complete record of the Rachel's revocation hearing. Mr. McLaughlin remarked that the St. Paul study in April of 1978 resulted in no adverse affects from sexually oriented uses. The Belleview Washington study also attests to no need to further study or regulate alcohol nuisance immorality laws. An appraiser's study in Evansville, Indiana also resulted in no evidence of harm using the Uniform Standards of County Property Appraisal Practice. In Fulton County, Georgia the police department conducted a study that resulted in no secondary impact from adult entertainment. He stated that the Lansing, Michigan survey also found no evidence of harm. Mr. McLaughlin remarked that Rachel's Adult Entertainment had six accusations of prostitutions within a six -month period. He stated that there was no evidence that the six accusations led to charges. He stated the City's evidence Binders was shoddy material and he submitted his final volume for the record. City of Cape Canaveral, Florida City Council Regular Meeting Jury 20, 2004 Page6of9 Coe Mr. Leo Nicholas. Planning and Zoning Board and Beautification Board Chairperson asked why the Attorney or his expert consultant provided no specific changes to the correct or amend the draft ordinance. Mr. Nicholas said that this is a public hearing and a forum to make those corrections or amendments. Ms. Shannon Roberts, 703 Solana Shores, Apt. 501, Cape Canaveral, expressed that the Council, City Attorney and City Manager had the best interest of the community in mind with the proposed ordinance and expressed her favor. Mr. Dan Kuntz, 8002 Poinsetta Avenue spoke in favor of the ordinance regardless of the Annexation issue. Mayor Randels expressed that he felt support from the Cape Canaveral residents on this ordinance and he expressed that the ordinance was not intended to restrict any First Amendment rights. Mr. Boucher asked one final time if there were any specific amendments to the ordinance and if not for the Mayor to close the public comment portion of this discussion. There was no further public comment; therefore, Mayor Randels dosed the public comment period. Attorney Garganese thanked Mr. McLaughlin for the material he submitted. He remarked on the Rachel's issue and he introduced for the record 16 plea agreements and he recounted some of the charges to the pleas as: conspiracy to commit racketeering, sale or delivery of drugs, prostitution, exposing of anatomical areas, public nudity and possession of cannabis. He stated that there were arrests and guilty pleas. Secondly, Attorney Garganese stated that the only way to disprove that the charges were innocuous, as Mr. McLaughlin would have the Council to believe, was to view excerpts of the undercover video in the Rachel's investigation that was presented in the license revocation hearing. Attorney Garganese warned the audience that the video contained sexually explicit material. Council members requested not to view the video or to subject the audience to any embarrassment. Council admitted the video as part of the public record. Attorney Garganese stated that Mr. McLaughlin had testified on behalf of many Adult Entertainment establishments. He introduced into the record ten cases from Westlaw where Mr. McLaughlin's testimony carried in two cases; however, in eight cases his testimony was found invalid in whole or in part. Mr. McLaughlin replied that in the case of Worldwide Video v. Spokane the Circuit Court found his expertise suitable. In the Stringfellows case, he stated that his points were approved to be law and the case did not relate to predicate but to alternative avenues. He stated that his track record is greater than Attorney Garganese represents. Attorney Garganese introduced into the record, the City of Cocoa Beach's Adult Entertainment ordinance that is substantially similar to Cape Canaveral's. He concluded by stating that the City is attempting to amend its existing Adult Entertainment ordinance and restated that the ordinance was properly advertised as the Mayor noted. A motion was made by Mayor Pro Tem Hoog and seconded by Mr. Miller to Adopt Ordinance No. 13 -2004 at second reading. A vote on the motion carried 5 -0 with voting as follows: Mayor Pro Tem Hoog, For Mr. Miller, For Mr. Morgan, For; Mayor Randels, For and Mr. Treverton, For. Coe City of Cape Canaveral, Florida City Council Regular Meeting July 20, 2004 Page 7 of 9 Ce ORDINANCES: First Public Hearing: 7. Motion to Approve: Ordinance No. 14-2004; Annexation of the Avon-By- The-Sea Area, at first Reading. Mayor Randels read Ordinance No. 14 -2004 by title. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, FLORIDA, PROPOSING TO ANNEX REAL PROPERTY GENERALLY LOCATED FROM GRANT AVENUE TO YOUNG AVENUE AND STATE ROAD AlA TO THE ATLANTIC OCEAN, AND OTHERWISE KNOW AS WINSLOW BEACH OR THE UNINCORPORATED AREA LYING BETWEEN THE CMES OF CAPE CANAVERAL AND COCOA BEACH ALL OF WHICH IS MORE PARTICULARLY DESCRIBED IN EXHIBIT "A "; PROVIDING FOR THIS ORDINANCE TO BE SUBMITTED TO A VOTE OF THE REGISTERED ELECTORS OF THE AREA PROPOSED TO BE ANNEXED AND TO A SEPARATE VOTE OF THE REGISTERED ELECTORS OF THE CITY OF CAPE CANAVERAL; PROVIDING FOR THE AMENDMENT OF THE CAPE CANAVERAL CHARTER, ARTICLE I, SECTION 2, TO INCORPORATE THE SUBJECT REAL PROPERTY INTO THE CITY BOUNDARIES IF THE ANNEXATION IS APPROVED BY MAJORITY VOTE OF BOTH SETS OF REGISTERED ELECTORS AT A DULY HELD REFERENDUM; PROVIDING FOR THE FLING OF THE REVISED CAPE CANAVERAL CHARTER WITH THE DEPARTMENT OF STATE UPON SAID APPROVAL; PROVIDING FOR REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS, SEVERABILITY, AND FOR A CONTINGENT EFFECTIVE DATE. C ry Mr. Boucher clarified that the name of the area would include Avon -by -the -Sea as well as the Winslow Beach Area in the title. Attorney Garganese stated that the title was amended due to public input. Ms. Delores Trovillion, 311 Lincoln Avenue had questions on sewer drain piping, how drains would be addressed if Avon were annexed and how much this would cost the City. Mr. Gardulski displayed a map that depicted City outfalls. Ms. Trovillion asked if a sewer drain pipeline would be installed on Ridgewood Avenue and asked why Cape Canaveral were annexing when these problems exist. Ms. Dorothea Massey restated the question of why the City was not addressing its problems first. Mayor Randels replied that funding is set aside to address storm water issues. He stated that the residents of Cape Canaveral and Avon-by-the-Sea both have the opportunity to choose annexation. Mayor Pro Tem Hoog requested to have the Public Works Director explain the storm water system plan. Mr. Gardulski explained that the problem is an elevation as well as a pipe issue of which he is aware. He stated that at this time he had no answer; however, a solution is still ongoing. Mayor Randels replied to an Avon resident's question that the ordinance is to place the annexation issue on the ballot and one more Public Hearing would follow due to the changes made to the title. The City would submit language for the ballot on September 3 Mr. Byrd Gray of 407 Hayes Avenue asked who would maintain the streets once Avon - by- the -Sea is annexed. Mr. Boucher replied the City would maintain all streets except Ridgewood Avenue. Mrs. Gray asked if Avon-by-the-Sea residents would receive input on the pros and cons of annexation into the City of Cape Canaveral. Mr. Boucher replied that once the ordinance is adopted, the City could hold education sessions. Mr. Byrd asked why the Council would desire to annex. Mayor Randels replied that City of Cape Canaveral, Florida City Council Regular Meeting July 20, 2004 Page 8 of 9 residents from Avon -by- the -Sea approached the City regarding the benefits of annexation. Mrs. Byrd asked if the comparative chart would display the benefits of annexing either to Cape Canaveral or Cocoa Beach. Mr. Boucher replied that the City of Cocoa Beach is not pursing the annexation of Avon- by- the-Sea at this time. Mayor Randels explained that Avon residents pursued the opportunity to investigate the feasibility of annexation. A motion was made by Mayor Pro Tem Hoog and seconded by Mr. Treverton to Approve Ordinance No. 14 -2004 at first reading. A vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Miller, For; Mr. Morgan, For; Mayor Randels, For and Mr. Treverton, For. 8. Proposed Brevard County Educational Facilities Impact Fee Ordinance. Mayor Randels stated that the purpose is to ensure that new construction has available funding for new schools. Mr. Treverton noted a substantial increase in the amount of funding. Mr. Morgan remarked that Ms. Fowler's presentation stated that there was more than adequate funding for Brevard County schools. Mayor Pro Tem Hoog expressed that the School Board needed to show better fiscal accountability. Mr. Boucher replied that the impact fee is a County fee. Mayor Pro Tem Hoog and Mr. Morgan expressed their disfavor with the impact fee. Mayor Randels concluded that the Council was not in support of the proposed fee and the City Manager would convey their decision not to support the Impact Fee to the County. REPORTS: City Manager • Mr. Boucher thanked Council and staff with their assistance with the Portuguese Sister City visit. The group was impressed with the City overall and the Mayor was extended a reciprocal invitation to visit. • Mr. Boucher noted that incentives were proposed during the Budget Workshop toward retrofitting older properties in order to retain stonmwater. Staff Public Works Director • No report. Building Official • Mr. Morley reported that Daley Environmental has begun their study on the proposed new public facility on Center Street. Results are forthcoming. City Clerk • No report. 1 City of Cape Canaveral, Florida City Council Regular Meeting July 20, 2004 Page 9 of 9 City Attorney • No report. AUDIENCE TO BE HEARD: } • A resident of Avon -by- the -Sea inquired who the people were of which the Mayor spoke who approached the City on annexation. He found out about the r` annexation issue through an article in the newspaper. The resident related that Mr. Deroescher did not relate the actual number of residents who preferred to remain in Avon -by- the -Sea. • Ms. Shannon Roberts reported that fireworks were still being discharged north in the Jetty area She related the feedback that she encountered on notifying local Law Enforcement. Mr. Boucher replied that public access is limited in order for law enforcement to cite the violators. • Ms. Roberts asked about the status of the decorative lighting on North Atlantic Avenue. Mr. Boucher replied that the project is in progress with Florida Power and Light. • Ms. Roberts also asked if the Sea Turtles are protected from dune lighting. Mr. Morley replied that the City and County Code Enforcement officers walk the dune line one per month to address the issue. • Mr. Jim Hale expressed an improved condition of fireworks debris found on the beach after the Independence Day holiday. • Mr. Leo Nicholas, Chairperson of the Beautification Board, expressed that the Board preferred to see the City complex area remain intact. He related that the Board proposed eminent domain of adjacent properties in order to preserve the municipal complex. City Council No reports. There being2Jurtter business, the Chair adjourned the meeting at 9:30 P.M. e e ` f *, c r a �4 Rocky Randels, M AYOR S - - IS CITXXLE 4