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Home My WebLink About06-15-1978 Special MeetingMICROFILMED 4.24.80 SPECIAL MEETING CITY COUNCIL JUNE 15, 1978 THE SPECIAL MEETING OF THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL WAS CONTINUED ON JUNE 15, 1978 AT 7:04 P.M. AT CITY HALL, 105 POLK AVENUE, CAPE CANAVERAL, FIARIDA. THE ROIL WAS'CAILEU BY THE CITY CLERK. OFFICIALS PRESENT WERE: MAYOR ANN H. THURM, COUNCIL MMEM L.C. BOYD, J.L. MURPHY, M.A. RIGHWAN AMID C.K. WMTON; CITY MANAGER ANITA J. OSUM, CITY ATIDRNEY RICHARD F. SCOTT, CITY CORK PATRICIA J. BEAULIEU, SGT. AT ARMS PHYLLIS -NELSON. UNFINISIM BUSINESS ITEM 1. RESOLUTION NO. 78 -26 LIBRARY LEASE (POSTPONED AT JUNE 6 MEh'1'ING, POSMM AT JUNE 1-3 MMING) THE CITY ATTORNEY PRESENTED COUNCIL WITH A LETTER. STATING HIS OPINION IN REGARD TO THE BUILDING OFFICIAL'S STOP WORK ORDER ISSUED AT THE JUNE 13 NZTING. , SUBJECT LET1'II2. STATED THAT THE STOP 'WORK ORDER WAS INVALID. MR. SCOTT'S LE°.D.['ERR 0 10 M � y�1 • M � M I '� • � I •�' �� 1 1 15l 11; I� ' MADE TO THE LEASE AT THE JUNE 13 MELTING. VOLE ON THE MOTION ON THE FLOOR FOR THE ADOPTION OF RESOLUTION NO. 78 -26 RE: LIBRARY LEASE WAS AS FOLLOWS: IN FAVOR, MRS. BOYD, MR. MURPHY, MAYOR THURM AND M. WELTON, OPPOSED, MRS. RICER AN. MOTION CAR M. MEETING ADJOURNED AT 8:00 P.M. s APPROVED THIS 20 DAY OF JUNE 1978. OR CITY CLERK �s e r SPECIAL MEETING CITY COUNCIL 6 -15 -78 (GONTI UM FROM 6 -13) PACE 2 OF 2 AND ATTACEOTS 7 004�91S LAW OFFICES OF MICROFILMED 4 -24 -80 WOLFS, K RSCH.ENDAUM, CARUSO &- MOSLEY, ]P. A. June 15, 1978 The Honorable Mayor and City Council Members 105 folk Avenue Cape Canaveral, Florida 32920 Re: New library location Dear Mayor Thurm and Council Members: This is in response to your request for my opinion regarding the Stop Work Order issued by the Building Official on June 13, 1978, regarding the proposed new library site. After extensive research of the Florida law and general law, I have reached the following conclusions from which I will render my opinion. Generally speaking, a municipality is exempt from its own zoning regulations regarding those uses which are classified as governmental rather than proprietary or private. It is my opinion, based on the existing case law, that the operation of a public ,library is strictly a governmental use; therefore,- there - is case law to support the fact that the City would be exempt from the zoning provision and could locate said library in any district within the City. I might point out that there is no Florida law directly on this point, nor any case in Florida interpreting this provision. This opinion is based on the general municipal law from throughout the United States. The same principle applies regarding applicability of the Southern Standard Building Code. The other item mentioned by the Building Official in his report is Florida Statute Chapter 553 pertaining to accessibility to public buildings by handicapped persons. Strict reading of that Chapter indicates that it is not applicable to buildings in existence, or built prior to October 1, 1974. Of course the building in question was completed long before that time. (continued) 66 NORTH ATLANTIC AVENUE 286 FORTENBERRY AVENUE POST OFFICE BOX 767 POST OFFICE BOX 1271 COCOA B EACH, FLMDA WMI NE UM ISLAND, r WRWA iitd838 FRANK M.WOLFE (308) 783 -2218 (305) 783-2218 MALCOLM R.KIRSCHENSAUM JOE TEAGUE CARUSO IN REPLY ADDRESS FIRM AT CURTIS R.MOSLEY RICHARD F. SCOTT Cocoa Beach JAMES S.THERIAC,111 JOHN J. KABBOORD,JR. June 15, 1978 The Honorable Mayor and City Council Members 105 folk Avenue Cape Canaveral, Florida 32920 Re: New library location Dear Mayor Thurm and Council Members: This is in response to your request for my opinion regarding the Stop Work Order issued by the Building Official on June 13, 1978, regarding the proposed new library site. After extensive research of the Florida law and general law, I have reached the following conclusions from which I will render my opinion. Generally speaking, a municipality is exempt from its own zoning regulations regarding those uses which are classified as governmental rather than proprietary or private. It is my opinion, based on the existing case law, that the operation of a public ,library is strictly a governmental use; therefore,- there - is case law to support the fact that the City would be exempt from the zoning provision and could locate said library in any district within the City. I might point out that there is no Florida law directly on this point, nor any case in Florida interpreting this provision. This opinion is based on the general municipal law from throughout the United States. The same principle applies regarding applicability of the Southern Standard Building Code. The other item mentioned by the Building Official in his report is Florida Statute Chapter 553 pertaining to accessibility to public buildings by handicapped persons. Strict reading of that Chapter indicates that it is not applicable to buildings in existence, or built prior to October 1, 1974. Of course the building in question was completed long before that time. (continued) MICROFILMED 4 -24 -80 Page 2 June 15, 1978 Mayor and City Council Members Had either the Southern Standard Building Code or the Zoning Ordinance specifically covered the City, then there would be no question as to their applicability to the City, but this is not the case. The Code and Zoning Ordinance both speak of persons, including a firm, association, organization, partnership, trust company or corporation, as well as an individual. Neither of them specifically say a municipal corporation. Since there is some ambiguity as to whether or not the City is covered, zoning ordinances must be construed strictly, and it is my opinion that a strict interpretation of this code and ordinance would exclude the City. Admittedly, it would be in the best interest of the City to comply with its own regulations. Also, it would be in the best interests of all concerned that the City provide suitable accessibility for the physically handicapped. Therefore, I would recommend that the City comply, where reasonable, with the provisions of the Zoning Ordinance as far as necessary repairs and safety requirements are indicated, and that accessibility be provided for handicapped persons. In addition, to resolve the ambiguity, it is my opinion that the Planning and Zoning Board and the City Council should look into the question of whether or not the City should or should not be specifically covered by the Southern Standard Building Code, the other codes and the Zoning Ordinance. Therefore, based on the foregoing, it is my opinion that the Stop Work Order delivered by the Building Official is invalid and of no effect to the City of Cape Canaveral. It is further my opinion that the Building Official has overstepped his bounds in the method by which he delivered the Stop Work Order to the City; specifically, I refer to the fact that he has not consulted with the City Manager, or in any other way notified her of his activity in this regard. Also, it is obvious that he has not sought the opinion of the City Attorney through the City Manager regarding the validity of his Stop Work Order. It should. be noted by the Council that an action on the part of the Building Official, such as a stop work order, has serious ramifications, and due process of law requires that such stop work orders be done in a legal and lawful manner to prevent, in other cases, serious financial liability to the City. The present Building Official has, in other cases, recently issued directives involving property rights of individuals, without consultation with the City Manager or City Attorney. There is no question that he has the authority to enforce the zoning laws and various building codes in effect at the LAW OFFICES OF WOLFE, IinscHENBAum, CAuuso & MosLEY, P. A. (continued) MICROFILMED 4 -24 -80 Page 3 June 15, 1978 Mayor and City Council Members City, but he must do so under and through the direction of the City Manager, and in accordance with due process of law. The City's organizational ordinances place the Building Official directly under the City Manager, and in fact, the Zoning Ordinance itself requires that the Building Official work under the supervision of the City Manager. This oversight on the part of the present Building Official should immediately be remedied by the City Council and /or the City Manager. Should you have any questions regarding this opinion, please let me know. submitted, �e�e - - achard F. Scott City Attorney RFS /t LAW OFFICES OF WoT. KxnscnENnAum, CARuso & MosLEY, P A.