The Board of County Commissioners of Brevard County, Florida, met in special session on April 15, 1999, at 10:00 a.m. in the Government Center Florida Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Truman Scarborough, Commissioners Nancy Higgs, Sue Carlson and Helen Voltz, County Manager Tom Jenkins, and County Attorney Scott Knox. Absent was: Commissioner Randy O'Brien.

RESOLUTION, RE: RECOMMENDING LOCKHEED MARTIN BE APPROVED AS QUALIFIED TARGET INDUSTRY BUSINESS

Lynda Weatherman, representing the Economic Development Commission (EDC), stated she and Economic Development Director Greg Lugar met with Lockheed Martin officials to discuss the refurbishment, expansion and buildout of Complex 41 which will include a launch site for its Atlas 5, satellite processing facility, and a horizontal innovative facility; part of the discussion was to do some programs that are available at the State level; and Lockheed Martin is qualified for an ad valorem tax abatement program based on its tangible personal property tax, similar to what the County did with U.S.B.I. in 1995. She requested the Board support the resolution as the EDC wants to work with the State in development of the Qualified Targeted Industry Program.

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to adopt Resolution recommending Lockheed Martin be approved as a Qualified Target Industry Business, and the necessary commitment of local financial support for the Qualified Target Industry business for the Qualified Target Industry Tax Refund Program be waived and matched through Brevard County's Tax Abatement Program. Motion carried and ordered unanimously.

ANNOUNCEMENT

County Manager Tom Jenkins advised that Commissioner O'Brien had gall bladder surgery and is doing fine.

DISCUSSION, RE: TRANSPORTATION PROJECTS

Public Works Director Henry Minneboo stated the Board requested staff define the road projects throughout Brevard County; it identified some of the needs in the County; it took the basic list it gave the Board the last time and put the current congested ratio and the year 2020 congested ratio to it; and the Board gave staff direction to look at something that would carry the County to

DISCUSSION, RE: TRANSPORTATION PROJECTS

the years 2020 or 2021. He advised staff attempted to describe each project in a detailed manner; included on the list are those projects of extreme importance-Girard Boulevard, Mathers Bridge, Fairglen School Pedestrian Bridge, A. Max Brewer Causeway, Valkaria Road, Goat Creek Bridge, and South Tropical Trail; and the Board directed staff to undertake engineering designs for Croton and Wickham Roads.

Mary Tees stated included on the list of first priority projects is the Port St. John West Connector- I-95 to Golfview which is $2.7 million; there are approximately 1,500 homes on the west side of Port St. John with two schools and the possibility of a third one; in the two schools are 2,250 children; and there is one way out which is the Fay Boulevard Bridge. She noted I-95 is becoming more congested and there are more accidents; it is only a question of time until the residents lose the bridge; the Ranch Road Bridge was put across the highway and built with federal dollars; however, the public has no way to use it. She stated she does not understand how a bridge can be closed that was built with public tax dollars; and if Ranch Road was opened, it would be safer for the children. Ms. Tees stated Port St. John desperately needs its projects done, including Ranch Road-Grissom to Frontage Road, Frontage Road-Ranch to Banyan Avenue, and Port St. John West Connector; the projects total just under $6 million; Ranch Road Extension-Frontage Road to S.R. 407 would be nice if the County had extra money; however, Projects 1, 10 and 11 are absolute necessities.

Commissioner Higgs stated the real value to John Rodes Boulevard-U.S. 192 to Eau Gallie Boulevard is Wickham Road and I-95.

Chairman Scarborough stated he met with Mr. Bridges concerning A. Max Brewer Causeway; he was impressed with the amount of information collected; Parrish Medical Center (PMC) is the designated place for transport by ambulance if anyone is injured out there; there are weight limitations that prevent certain trucks; fire disasters and surge events have been studied; and the impact of moving people with certain events in different areas can be strategically very difficult. He noted he hopes there will not be a bunch of curb cuts on Grissom Road that is going to slow down traffic and compel four-laning. He stated concerning Project 9, Singleton Avenue-Garden Street to Dairy Road, there are no needs as far as congestion; the sand on the side of the road is soft and there have been accidents; putting extended shoulders may handle the problem; and it needs to be addressed for safety purposes. Chairman Scarborough stated there may be areas in the Commission Districts that need to be addressed for safety reasons if there are accidents occurring and risks, even if it is not a congestion issue; and they may be handled with a minimal amount of funds. He inquired if staff examined all the Districts and addressed the safety issues; with Transportation Director Bob Kamm responding it evaluated where the high accident locations are, but did not go through an analysis.

Commissioner Higgs stated the projects in District 3 that take priority for her are all within the scope of what staff listed, including Project 34, Palm Bay Road-Babcock to R. J. Conlan, Project

DISCUSSION, RE: TRANSPORTATION PROJECTS

45, Minton Road-U. S. 192 to Malabar Road, Project 44, Riverside Drive-U. S. 192 to S. R. 518 which needs intersection and corridor improvements, and Project 43, Micco Road-Dottie Lane to Babcock Street. She noted federal funds will be available for Palm Bay Road; Minton Road is eligible for federal funds and Micco Road might also be; and staff should exhaust those opportunities as well to get additional monies. Commissioner Higgs stated Projects 40 through 42, Hollywood Boulevard-U. S. 192 to Fell Road, Hollywood Boulevard-Fell Road to Eber Road, and Hollywood Boulevard-Eber Road to Palm Bay Road, can be looked at if other monies are available; and if staff gets through the projects she previously listed, it will take care of major improvements in safety, including pedestrian safety, and north/south, east/west movement.

Commissioner Carlson stated she agrees with doing the Mathers Bridge project, and inquired is the $3.8 million to replace the bridge or refurbish it; with Mr. Minneboo responding it is a rehab. Commissioner Carlson inquired about other alternative financing for the project; with Chairman Scarborough responding the other alternative is to wait for the State.

Commissioner Higgs inquired will federal funds be available for A. Max Brewer Causeway; with Chairman Scarborough responding he will be going to Tallahassee to see if the project can be moved up on the priority list. Mr. Kamm stated there is an economic development aspect to the Causeway which puts it in a different category than if the County were asking for the project based on traffic volumes; and it may change things.

Commissioner Carlson stated Project 47, Croton Road-Johnson Jr. High School to Lake Washington, is in the works; the other projects in her District do not have capacity problems now; she would have liked to see a five-year projection on capacity versus 20 years since the Board is looking at bonding in areas; and short and long-term projections would have been easier for her to figure out what her priorities might have been based on that. She noted Project 52, Wickham Road - I-95 to Lake Andrew Drive project does not have a problem now, but in 20 years it could; and she would like to see the progression on how it is going to be approaching the 269 ratio over the next 20 years. Commissioner Carlson stated the Board approved the scope of service on a study for Pineda Causeway; it could be a serious problem in terms of off-loading the impact to Wickham Road in her District; and the information will come back in May, 1999.

Chairman Scarborough stated if the Board bonds out in 20 years and it does not fund this project, there will be a new Pineda connection in 20 years; and it needs to be part of the formula right now.

Commissioner Carlson stated the Board does not know if the project is possible between Wickham Road and I-95 due to the environmental issues, including a bald eagle's nest and wetlands; the project was stopped before based on political issues and not environmental problems; there is a rezoning item coming up that could potentially put 800-plus people onto Wickham Road; and they are going to be doing part of that road system anyway.

DISCUSSION, RE: TRANSPORTATION PROJECTS

Chairman Scarborough stated he agrees that the Pineda connection needs to be included on the project list.

Mr. Minneboo inquired if Commissioner Carlson had an opportunity to look at Barnes Boulevard; with Commissioner Carlson responding she is interested in four-laning some of those areas for evacuation purposes.

Commissioner Higgs stated she does not understand why Project 51, Stadium Parkway-Judge Fran Jamieson to Stadium Parkway, is $2.3 million total cost; and the amount may be incorrect. Mr. Kamm advised the total cost for the project is $9.3 million and the County's portion is $2.3 million. Commissioner Higgs inquired how long is the road; with Mr. Kamm responding 4.2 miles. Commissioner Higgs stated it will only be at 91% capacity in the year 2020; with Mr. Kamm that is for a four-lane road. Mr. Kamm advised at the present time there is a mixture of both two lanes and four lanes; it is a Viera Development of Regional Impact (DRI) project and the rate at which the traffic occurs will depend on the development pattern; the Viera Company intends to go through a re-analysis of its DRI this summer; these are based on the Company's initial submission from several years ago; and the County may have a better idea of what the revised development program and impacts will be in several months. Mr. Kamm stated Stadium Parkway should have been recognized as a two-lane road as it puts the ratio up close to 200%.

Mr. Jenkins inquired is there anything concerning Stadium Parkway going south; with Mr. Kamm responding it is in the DRI. Mr. Jenkins stated it may be the County's relief to Wickham Road on the west side; and trying to do anything on the east of I-95 with the residential development there is going to be next to impossible.

Discussion ensued concerning connecting Pineda to I-95, S.R. 520, S.R. 528, and U.S. 192, toll roads, intersection improvements, planning perspectives, reserving right-of-way, the Palm Bay Beltway, donated right-of-way; enhanced landscaping, medium to low maintenance, and enhanced property values.

Commissioner Voltz requested staff work with the City of Palm Bay concerning Culver Road to I-95 and get some funds from the federal government; stated the Southwest Palm Bay Study indicated the traffic count from Minton Road to Culver was 35,000; from Culver to I-95, the traffic count was 68,000; and it needs to be addressed. She stated Project 58, Palm Bay Beltway-Phase 1, Malabar Road to U.S. 192, is a number one project and needs to be done; it is necessary for evacuation purposes and safety; Project 55, John Rodes Boulevard-U.S. 192 to Eau Gallie Boulevard, desperately needs to be done; it is over $18 million; and if the County does not do the projects now, the costs could double. She stated Project 59, Ellis Road-John Rodes to West Melbourne, is tremendously overcrowded; it is two lanes and there is a lot of business there; and there was discussion at the Metropolitan Planning Organization (MPO) meeting concerning the possibility of bringing Ellis Road across I-95, directly hooking up at the Airport, and using that corridor.

DISCUSSION, RE: TRANSPORTATION PROJECTS

Mr. Jenkins stated the Airport could do that one, as it wants to run that whole road.

Mr. Kamm advised on Project 59, half of Ellis Road is West Melbourne's and half is Brevard County's; this is only one-half of the total project cost and the County's portion of the widening project; and to implement the entire road project, the County would need cooperation from West Melbourne.

Commissioner Voltz stated Project 56, Wickham Road-U.S. 192 to Nasa Boulevard, is in design now; it is a definite priority; Project 57, Wickham Road-Nasa Boulevard to Sarno Road is presently five lanes; and inquired will it be seven lanes. Mr. Minneboo responded it will be six lanes, and curb and gutter.

Mr. Jenkins stated the cost of widening Wickham Road is going to be expensive.

Henry Hill, representing City of Melbourne, stated Babcock Street north of U.S. 192 is not included on the list; it is a very constrained corridor; it is part of the Babcock Street Corridor Study now; but he does not want to see it forgotten.

Jim McKnight, representing City of Rockledge, expressed concern with Barnes Boulevard as there is an uncertainty as to when there will be a connection at Viera Boulevard and I-95; stated with the growth in Viera and south Rockledge occurring, Barnes Boulevard is becoming a death trap; traffic volumes are also growing because of the contributory from residential; and commercial elements will be going in as well. He noted no one knows when that project will occur; therefore, the impacts are going to continue to grow; the corridor study has been initiated and is under way; and he hopes the project will continue to be a priority.

Commissioner Higgs stated the Babcock/U.S. 192 Intersection for Districts 3 and 5 is going to be an important project; and the County should try to set aside money from both Districts.

Chairman Scarborough stated he would like staff to proceed with those projects the Board expressed an interest in, and provide options for financing to the Board.

Mr. Minneboo stated Commissioner O'Brien expressed an interest in Dixon Boulevard, from Clearlake Road east to U.S. 1.

Commissioner Carlson inquired is staff going to reprioritize the projects list, based on the Board's comments; with Mr. Jenkins responding yes, and it will report back with options.

Chairman Scarborough stated he would like to see more details on the projects; and the County needs to study all the options. Commissioner Higgs stated a lot of the projects are potential

DISCUSSION, RE: TRANSPORTATION PROJECTS

other funding projects; the County needs to start out on the ones the Board has identified as priorities; and staff can further refine the cost and move forward on any kind of funding options the County can have.

Commissioner Voltz inquired why I-95 to Minton Road is not included on the list; with Mr. Kamm responding the list was put together last summer, and it may be prudent for staff to look again at Palm Bay Road, west of I-95.

Chairman Scarborough stated the Board needs to establish time parameters when it wants the information to come back, and inquired how much time staff needs; with Mr. Minneboo responding early July. Chairman Scarborough stated it is important for the County, when it spends its dollars, to spend them well; and he wants to know that he is making a good decision with the money, not only in his District, but throughout Brevard County.

Commissioner Carlson requested if staff is going to do the congestion ratios, such as Stadium Parkway versus I-95, that it specify with a footnote that the congestion ratio includes the addition.

Mr. Kamm stated it may be useful if staff meets with each Commissioner concerning the short list of projects they have identified, and goes through the options.

Chairman Scarborough noted with certain planning, Grissom Road may be less of an issue; he cannot just look at the congestion issues in District 1; and he did not address every possible concern or go down item by item on each of the projects in his District. Commissioner Higgs stated she addressed those projects in her District that she thought were priorities. Chairman Scarborough stated he will bring to the Board what he thinks it needs to consider in a holistic sense.

The Board directed staff to reprioritize the transportation projects list, provide options for financing the projects, and report back to the Board with additional information in early July, 1999.

The meeting recessed at 11:30 a.m. and reconvened at 11:40 a.m.

DISCUSSION, RE: LOCAL OPTION GAS TAX

Nancy Domonousky, Vice Chairman of Board of Directors of Palm Bay Area Chamber of Commerce, stated the Chamber supports the 9th, 10th, and 11th-cent local option gas tax;

DISCUSSION, RE: LOCAL OPTION GAS TAX

requested the Board's support also; and stated it would provide funds, which are desperately needed in Palm Bay, to upgrade the City's infrastructure, benefit the business community, and the citizens, residents, and Brevard County as a whole.

Melba Tedford, representing Melbourne-Palm Bay Area Chamber of Commerce, urged the Board to consider the local option gas tax increase; stated there is a need for additional improvements; members of the Chamber and its employees are willing to pay the taxes to get them; and State and federal monies are not going to take care of what needs to be done locally. She noted this is a Countywide concern; and this is an issue that will receive support from the citizens if they fully understand it.

Bob Wille, Mayor of Town of Melbourne Beach, stated the Town adopted a Resolution in support of the 9th, 10th, and 11th-cent local option gas tax; the needs are of no question; he acknowledges it is a very complex process; and it is clear that the Board is not going to do the visioning and planning, and things that need to be done without the funding to provide that. He noted the only individuals who pay a gas tax are those who are using the service; whenever possible, it is good public policy when elected officials can transfer that cost of providing a service to the user; and the Board has the opportunity to do some of that here. He stated this is a Brevard County issue; the citizens are interested in the quality of life; good infrastructure is good quality of life; everyone is for that; and it needs to be recognized. Mr. Willie noted tourists will provide a good portion of the funding as a result of a gas tax to provide for these projects; interest rates are low at the present time; there are many benefits available to the County to plan ahead and set the reserves that would place future Commissions in the position to address those things the Board cannot anticipate now; and there are many good reasons for passing this tax. Mr. Wille stated the Town Clerk did a polling of other municipalities; through the League of Cities, there has been an active involvement to get cities to adopt resolutions, such as the Town has; as of Friday, there were six municipalities that had adopted Resolutions in support of the 9th, 10th, and 11th-cent local option gas tax or taken positions in support; and a number of other municipalities have it on their agenda. He noted two municipalities have chosen not to take a position; there is support out there, although it is tasked in the Board's domain to make that decision; and it has strong support from the municipalities which is ongoing and will increase. He stated he was asked by Robert Varley of the Tourist Development Commission to read a Resolution to the Board which speaks to the enhancements of Brevard County's roads, as follows: "The Tourist Development Council met on March 17, 1999. At this meeting, the TDC discussed the 9th, 10th, and 11th-cent local option gas tax; the TDC would like the County Commission to approve the additional 9th, 10th, and 11th-cent local option gas tax and if a portion of these funds are used for enhancement of the I-95 Interstate interchanges and major tourists corridors, the TDC also recommends the Commission seek State and matching grant funds to maximize these funds."

DISCUSSION, RE: LOCAL OPTION GAS TAX

Bob Nanni, Acting City Manager for City of Palm Bay, stated the City Council adopted a Resolution supporting the local option gas tax increase; the residents of Palm Bay in the past 10 years have supported and passed three out of four referendums that dealt with dedicated millage to infrastructure improvements; and this means people are willing to pay for the necessary infrastructure improvements. He noted there should be a degree of comfort on the Board's part, knowing that the residents would tax themselves to get these things done because they understand the importance; the issue of growth is recognized in Palm Bay; the City is taking steps to reduce the number of trips or so that the number of trips that are put on the roadways are funneled in certain ways; and it is doing this through changes in its Comprehensive Plan. Mr. Nanni stated the City needs revenue support; and encouraged the Board to pass the local option gas tax increase.

Bill Hall, Town Manager of Town of Malabar, stated there are many dirt roads in the Town of Malabar; the Town could use any increase it can get in revenue; it was depending on impact fees to do that; however, such source is not doing as well as it used to; it needs to do something to get the roads paved; and the local option gas tax increase is a good opportunity.

Chairman Scarborough stated if the Board wants to proceed, it needs to adopt an ordinance and four Commissioners have to vote in favor of the gas tax.

Commissioner Voltz stated there needs to be a public hearing; and inquired what percentage of the gas tax is paid by tourists. Mr. Kamm responded staff did a calculation on it several years ago; and the estimated number is 15%, which includes the through traffic on I-95 that stops in Brevard County to get gas. Chairman Scarborough inquired does it include the snowbirds; with Mr. Kamm responding affirmatively.

Commissioner Voltz stated South Brevard desperately needs road projects completed; she does not have a problem supporting the 9th, 10th and 11th-cent gas tax; the County has more options than the cities; and the cities depend on the County.

Chairman Scarborough stated the Department of Revenue indicates that 18 to 21% of the gas tax is paid by non-residents; he has no doubt that the money would be well spent; the problems can get increasingly more difficult and expensive; and everyone is affected. He noted it is going to be difficult to get four votes; and he is willing to make this work.

Commissioner Carlson stated there is a large amount of work to be done; $280 million is the wish list; she is supportive of the 9th, 10th, and 11th-cent gas tax as a mix to additional funding to do all the projects that need to be done, not just $120 million worth; and that is not looking at long-term, but only short-term.

DISCUSSION, RE: LOCAL OPTION GAS TAX

Commissioner Higgs stated all the gas tax the County levies with these pennies will not solve the problem unless it looks at land use; the Southwest Corridor Study was clear that no matter what the County did and how much money it spent, it would impact neighborhoods and people; she will not seriously discuss the gas tax unless it seriously discusses land use, and the cities and the County reviewing ways to preserve the quality of life long-term; and that, in part, is a reduction of the demand on roadways.

Discussion proceeded concerning alternative revenue sources, transportation impact studies on commercial and industrial usages to help augment transportation needs, urban sprawl, Legislative issues, surcharges, incentives to bring more revenue, impact fees, quality of life issues, increased property values, land use, infrastructure, Comprehensive Plan, Metropolitan Planning Organization (MPO), and long-term best interest of Brevard County.

Commissioner Higgs stated if her vote goes toward the gas tax, she has to see that the County is doing what is right long-term to insure high quality of life. Commissioner Carlson stated Brevard County needs to lead by example; it is going through visioning and performance based zoning; and hopefully the cities will learn by the example the County is setting.

Chairman Scarborough inquired what specifically does Commissioner Higgs want to see; with Commissioner Higgs responding trips off the road. Commissioner Higgs stated the Board can move forward with the Local Option Gas Tax (LOGT) currently in place, bond it, and get started on the projects.

Mr. Jenkins stated Commissioner Higgs does not want to see transportation dollars go for encouraging uncontrolled urban sprawl. Commissioner Higgs stated she wants discussion with the Board and the community to find ways to have an achievable objective and make land use decisions now to reduce trips on the road.

Commissioner Higgs stated if the County looks at the gas tax and says it is going to buy 100 million trips for this $100 million, she is saying take 100 million trips off the road; if it discusses that issue seriously, it is looking at a long-term solution to the problem and the quality of life that people in the community want to have; and then she can be supportive.

Commissioner Voltz stated the County can do that, but it cannot make the cities do it; and Palm Bay uses its money to pave the roads and maintenance, and that is it. Chairman Scarborough stated the City of Titusville is not able to do that today; and it is trying not to drown. Commissioner Voltz noted the cities are drowning.

Mr. Nanni stated the cities are struggling; unfunded mandates are continually being passed on to municipalities; they do not have the ability to increase gas taxes; and they rely on the County.

DISCUSSION, RE: LOCAL OPTION GAS TAX

Commissioner Voltz stated supporting the cities is the right thing to do; she is not concerned about the 9th-cent, but the 10th-cent and 11th-cent gas tax which the cities desperately need to hold their own; and home rule needs to rule.

Commissioner Higgs stated the cities have creative ideas about what they would like to do, including redevelopment to reduce the demand; this is an opportunity for the County to work with the cities; she is referring to reducing demand equal to what is being providing or close to it; and the County should not carry all the burden.

Sue Hann, representing City of Palm Bay, suggested the Board consider taking a small percentage of the gas tax revenue gained from the 9th, 10th, and 11th-cent gas tax and set it aside, similar to the Federal Transportation Enhancement Program, as a grant situation where the cities or the County can apply to a multi-jurisdictional body, such as the MPO, to implement, plan or try and develop innovative land use and trip reduction-type projects. She stated the City recognizes it has a problem; it has an inordinate amount of demand and does not know how to deal with it; if there was a grant program where the City could apply for money, it would assist the City; and it would be motivated to do so. Mr. Kamm stated Brevard County may be able to secure federal and State money to match it.

Discussion continued concerning interlocal agreements, grant process, reduction of trips on the roads, East Central Florida Regional Planning Council (ECFRPC), Developments of Regional Impact (DRI's), traffic flows, objectives, allocating funds for landscaping, ad valorem tax reduction, all parties coming in as equals, incentives, planning process to plan for future impacts on roads using land use as a methodology, participation with municipalities, financial impacts, and performance standards.

Commissioner Carlson inquired has the County looked at the Transportation Element of the Comprehensive Plan and how all of this fits into that. Mr. Kamm advised transportation and land use is undergoing a national debate among planners and transportation specialists at the present time; no one has good answers and everyone is struggling with it; there are no ready-made answers on how to deal with this problem; and he is not sure staff is going to have specific answers on how to achieve the objectives as they have not been developed yet.

Commissioner Higgs reiterated her measure is trips off the road.

Chairman Scarborough suggested Commissioner Higgs work with Mr. Jenkins and staff to find a better way to define it.

The meeting recessed at 1:10 p.m. and reconvened at 1:35 p.m.

DISCUSSION, RE: LOCAL OPTION GAS TAX

Budget Director Kathy Wall stated the package presented to the Board contemplates using a combination of cash from the gas taxes plus a long-term $88.5 million bond that would amortize the road costs over a 19 to 21-year period; and it also contemplates if the projects were approximately $120 million.

Finance Manager Jim Helmer stated the three scenarios include doing two separate bond issues; the County could get the funds as it needed it; and it could change, depending on which projects are selected.

Mr. Jenkins inquired what was in the original bond issue; with Mr. Helmer responding $43.5 million would be the first one which would come from bonding both current constitutional local option gas taxes.

John Denninghoff, Construction Management, stated scenario one assumes there is no additional tax.

Mr. Helmer advised the second and third scenarios serve to speed up the process; the first scenario would take 18 years to do $120 million and more cash is put into the program; scenario two goes on to 13 years; and scenario three goes on to 10 years. He noted Mr. Holley's examples show that the Board can get its main priorities done much faster if it approves the 10th and 11th-cent gas tax; and it does not take into account the 9th-cent.

Mr. Denninghoff stated the assumption in all three scenarios is that the Board would bond out the same amount of money, regardless of whether it has the additional tax or not; the Board has the option to bond more if the additional tax is there; and staff is comparing $120 million in all three situations. Mr. Jenkins stated the Board could separate the two issues.

Commissioner Carlson stated she is interested in seeing additional ways of getting the money the County needs for a shorter term, paying it off and getting more, and having the line of credit as it does in other County departments; she wants to see different scenarios and not only the bonding mentality that recreates itself; bonding forces one into a vicious cycle of refunding; and it does not make clear sense to her why the County wants to keep so much in reserves when it cannot use it.

Mr. Denninghoff stated the mechanisms used to accelerate the projects are either staffing or a combination of staffing and bonding that allows it to incur the obligation.

Commissioner Carlson stated she understands staff is trying to leverage the cash flow; however, it does not make sense for a couple million dollars a year to go into debt that heavily when it is reducing its buying power over 20 years; and she does not understand the logic. She

DISCUSSION, RE: LOCAL OPTION GAS TAX

noted if the County needs $3 million or $4 million every year and quantifies the projects it needs to do, it can accomplish that in a five-year piecemeal-type of thing and pay it back on a line of credit; as time goes on, it will know how much it is expending; and it will end up building its reserves and not have to go out to bond all the time.

Mr. Denninghoff stated if the County wants to do big projects, such as the Palm Bay Beltway, in a reasonable time frame, bonding is the only way to do it.

Commissioner Carlson stated she understands the County needs to bond because of the cash flow issue; it does not have the money now to do the projects it needs to do; but bonding the potential $88 million for 20 years is not a scenario she is comfortable with unless there are other options to prove it is the only way to go; and she would like to see the commercial paper possibility.

Commissioner Higgs suggested the County get a plan for multi-year, multi-options on financing.

Mr. Denninghoff stated the current Local Option Gas Tax has been extended to the year 2011; and the Board needs to extend it to the year 2021.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve extension of the current Local Option Gas Tax (LOGT) to the year 2021. Motion carried and ordered unanimously.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to grant permission to advertise public hearing to consider an ordinance for the 9th, 10th, and 11th-cent gas tax. Motion carried and ordered; Commissioner Higgs voted nay.

DISCUSSION, RE: ADULT ENTERTAINMENT ISSUES

Assistant County Attorney Christine Lepore stated the Board requested a workshop to have dialogue with The American Center for Law and Justice; and it is interested in determining whether it needs to hire outside counsel and knowing what is the most restrictive it can be in regulating entertainment.

David Cortman, Associate Counsel of The American Center for Law and Justice, stated the firm is a non-profit public interest law firm which specializes in constitutional issues, mainly First Amendment issues; it fights in a variety of different arenas for pro-family issues, pro-community issues, freedom of speech, freedom of religion, etc.; what brings the Firm into working with

DISCUSSION, RE: ADULT ENTERTAINMENT ISSUES

these types of ordinances is the fact that they affect First Amendment issues, as the Supreme Court has said that nude dancing is a protected First Amendment activity; and the Firm has helped counties for a number of years enact these types of ordinances and also defend them. He stated the main reason he is here is to offer advice; Attorney Lepore asked how restrictive the County can be and what the law is around the country, specifically in Florida, dealing with these types of businesses; no decision needs to be made today by the Board; if it decides it wants help with its ordinances, the Firm will go back and decide if it can help; and he is here to give the Board advice on what it wants to do, and it can ask him questions on any issues dealing with these types of businesses.

Chairman Scarborough inquired how many cities and counties has the Firm assisted; with Attorney Cortman responding dozens. Attorney Cortman advised they have provided assistance in Florida, Dade County, Fort Myers, Cocoa Beach, North Carolina, Georgia, Texas, Kentucky, and South Carolina. He stated every ordinance has to be drafted to the local, state and federal law; different states have different laws of what can and cannot be done; different federal circuits have different laws also; and what is good in one location may not be good in another location. Chairman Scarborough inquired how successful has the Firm been; with Attorney Cortman responding very successful. Attorney Cortman stated the one model Ordinance it drafted and helped enact has been upheld in South Carolina in Richmond County; in Dade County there was a challenge to a conduct Ordinance the Firm helped write; and it was upheld last year.

Commissioner Higgs inquired has the Firm been to the U.S. Court of Appeals for the Supreme Court; with Attorney Cortman responding yes, but not on this issue. Attorney Cortman stated one of the gentleman who works for the Firm was assisting the FWPBS Case which went to the Supreme Court approximately 15 or 20 years ago; and that is how long individuals in the Firm have been working on these types of issues. He noted it is rare that these types of cases will go all the way to the Supreme Court; they will go to the appellate level and 11th Circuit, which covers Florida; but for the Supreme Court to hear a case, it is one in the thousands.

Chairman Scarborough stated the Firm has a model ordinance it developed out of South Carolina, and inquired is it suggesting local governments enact such ordinance. Attorney Cortman advised he reviews the Ordinances presently in place and decides how to make them tighter; an Ordinance is challenged any time there is teeth to it; and the County wants to make sure that based on case law, its Ordinance fits within whatever parameters have been set. He noted it is not necessarily the South Carolina Ordinance, but he will take the principles of that Ordinance and apply it to local jurisdictions. Chairman Scarborough stated there is the desire not to have people driving from Orange County to Brevard County for adult entertainment; Brevard wants to have a family-oriented community; and inquired what is the next step.

DISCUSSION, RE: ADULT ENTERTAINMENT ISSUES

Attorney Cortman stated the first step is finding out what the County would like to do, including how restrictive it wants to be, where it wants to locate these types of businesses, and type of conduct restrictions it desires; and from there he can recommend whatever the Firm thinks is defensible and has been upheld in the law. He stated it starts with what type of provisions the Board wants to enact and how restrictive it wants to be; and the Firm can then make suggestions. He stated he does not want to tell the Board and its community what to do; and he will tell it legally this is what will work and this is what will not work.

Commissioner Voltz stated the Board would like to put those types of businesses out of Brevard County totally, but legally it cannot do it. She inquired what is the minimum legal thing the Board has to do; and stated that is all it wants to do.

Attorney Cortman advised one of the most important issues that a lot of counties overlook is their public nudity ordinances; it is one of the strongest ways to regulate these types of businesses; when a county enacts a public nudity ordinance across the board and enforces it against all public places, including these types of businesses, it requires them to cover up more than a sexually-oriented business ordinance would do; and if people are going to go to these types of places and the women have to wear either some kind of a French bikini or something more than completely nude or pasties and a G-string, they do not necessarily want to go there because they can go somewhere else where they are totally nude. He reiterated one of the strongest weapons is a good public nudity ordinance; Brevard County already has one in effect; but it has to be enforced also against these types of businesses; and it is separate from the sexually-oriented business ordinance, but a very effective tool. Attorney Cortman stated the second step is whether the Board wants to disperse or cluster the adult entertainment businesses; there are a lot of issues on both sides of that debate of what is the most effective way; in his opinion, the most restrictive is the clustering; and the law requires between 35 and 40 sites to be allowed. He noted the law says counties are required to allow reasonable alternative avenues of communication; what that means is everybody's guess; there are some courts in Florida and the middle District that have pared that down and have said to look at the population of whatever jurisdiction is enacting the ordinance, how many businesses there are in existence right now that would have to move, and those types of factors; and if Brevard County fits somewhere in that range, it is going to be safe, but if it wants to be real aggressive and lessen that, it is going to be more subject to a challenge and basically not being upheld. Attorney Cortman stated the Firm looks at the test that the courts have laid out and tries to fit within there; the courts have not made an exact formula; and somewhere around 40 sites in the unincorporated areas is where Brevard would want to be in.

Commissioner Carlson inquired what about clustering; with Attorney Cortman responding the County would need the same number, but the parcel does not have to be 40 different locations of acres and acres and could be one location that has 30 acres where businesses can go all in the same place such as an industrial park.

DISCUSSION, RE: ADULT ENTERTAINMENT ISSUES

Commissioner Voltz inquired what if the people who own the property do not want the businesses there, and does it matter if the Board has designated the area for adult entertainment. Attorney Cortman responded case law says if the board designates an area for the businesses to be and the owners of the property will not lease to them, it is of no consequence as far as the First Amendment goes; but if that is the only area the board designates and it forecloses the businesses from opening at all, then it does matter; and if the Board has a bunch of different sites and some of them will not rent which lessens the number of sites, it is all right and will not be a problem. He stated the reasons he believes there is an advantage to clustering include the jurisdictions know where all the businesses are going to be; with the crime and problems there are with these types of businesses, it is a lot easier to have police enforcement watching them when it is all in the same location; the jurisdictions will not have 40 of these businesses right next to each other as the market will not support it; and what tends up happening is having less businesses because they do not want to have 40 of them next to each other. Attorney Cortman stated the opposition will say then there will be a red light district; if the boards restrict them as much as the law allows, it is easier for them to go somewhere else; when counties do dispersal, the other problem is allowing the businesses in all different areas of the county; and it is easier for the businesses to stay in business when they are separated from each other, plus they are everywhere. He noted the Board also has the choice a combination between the two; and it can give the businesses different areas, such as four or five industrial parks located in various places, as the zones.

Commissioner Higgs inquired could Brevard County have one area; with Attorney Cortman responding he believes so. Attorney Cortman stated he is not familiar with the layout of the County, but one of the other things the Board needs to look at when picking the area is the infrastructure of the area; it cannot say there is a cow pasture on the edge of town that has no electricity, sewer or roads and the businesses can locate there; and the test is whether it is part of the relevant real estate market and there has to be the ability to open up a businesses there.

Commissioner Carlson inquired how does the County get those businesses that are presently in areas zoned inappropriately to move in and how is it legally bound. Attorney Cortman responded the County's Ordinance grandfathers those businesses in; it would do amortization and advise the businesses it is enacting the ordinance as of a certain date; by perhaps two years from enactment of the ordinance, the businesses now open have to be in one of those locations; and basically, they have to move. He stated one year has been upheld in the middle District of Florida and 90 days has been upheld in different areas of the country; the Firm has done one, two and three years; and the more aggressive counties are, the more susceptible it may be overturned. Attorney Cortman stated the courts look at whether the businesses have been able to recoup their investment and what type of leases did they have; this relates to the longer the businesses have been there, the more likely they have already recouped their investments; the County would want to find out how long a lot of the businesses have been around; and the longer they have been here, the shorter amount of time the County has to give

DISCUSSION, RE: ADULT ENTERTAINMENT ISSUES

them. He noted the County is not foreclosing the businesses from using their property for any type of business; it is saying the business can stay there if it wants to be a bar, restaurant or movie house; but if it wants to do this type of business, it cannot stay there; and not only do they have the option of moving, they could still utilize that piece of property and change it into a different type of business.

Commissioner Voltz stated there are 15 municipalities in Brevard County, and inquired would it be better to do a Countywide ordinance or would the County still have to have 40 parcels for the entire County and the cities each have their own. Attorney Cortman responded the County can encompass all the cities within the County; it would take the total number of businesses in existence in the incorporated and unincorporated areas, and the population; the entire County, including all the cities, may need somewhere around 100 sites, based on its population; but it could determine where the sites are. He stated the benefit to the city is it can jump on board with a county ordinance and not have any locations within the city; but if they enact its own ordinance, it has to.

Chairman Scarborough stated he was under the impression that the Firm prefers to be the sole counsel. Attorney Cortman advised the Firm has worked with other law firms in addition to either the county attorneys or city attorneys; probably worse than having some political type of forum and trying to come to a decision is having multiple lawyers in the same room and trying to come to a decision; one person can argue one way and one person can argue another; to come down to a decision and an opinion is very difficult because everyone has their own opinion of how to do things; and there are also political problems. He stated between all the political and legal aspects, it is difficult to get anything done; if the Firm helps to write or re-write an ordinance or enact one, it will say it believes the ordinance is Constitutional and will help defend it in court; when working with different law firms, things get compromised; and it is hard to stand behind something fully when it has been comprised.

Commissioner Voltz stated the County can work out areas for the businesses; she would rather have them clustered than scattered all over the community; and if the County can get a majority of the cities to join with the County, it is less sites it has to have.

Attorney Cortman stated one of the best practical ways to proceed is a combination between dispersal and clustering, and have a few small areas so there is not a large concentration in one place.

Assistant County Attorney Shannon Wilson stated when the County adopted its initial ordinance, it severed out land use provisions from regulatory provisions; and inquired has the Firm tried that or has it been useful. Attorney Cortman stated there are benefits to it and problems with it also; it is all right to do it that way as long as everything is in order as there are different advertising and notice requirements; but the Firm does not recommend it because it is complicated enough as it is.

DISCUSSION, RE: ADULT ENTERTAINMENT ISSUES

Discussion ensued concerning community input, public hearing process, educating the community, discussion with the League of Cities, notifying businesses to be regulated, staff meetings with the community prior to public hearings, site specific, clustering businesses, dispersal, and available options.

Chairman Scarborough stated he supports letting Attorney Cortman's Firm represent the Board; and Attorney Cortman has persuaded him today that it is prudent on behalf of Brevard County to do this right.

Commissioner Voltz stated she can bring out a lot of people in support of the Board on this issue; the Board has to be determined and stand up for what it believes to be right and what it believes is best for the community; and these are community issues that absolutely destroy the community.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve retaining the law firm of The American Center for Law and Justice concerning the County's Adult Entertainment Ordinance.

Commissioner Higgs stated she wants to hear from another attorney as it would be prudent and wise for the Board; she is very impressed with what Attorney Cortman has to say and read some of the cases; however, the Board needs to talk to someone else also.

Chairman Scarborough stated he saw the other firms and they were practicing in a broad area; and it did not impress him. Commissioner Voltz stated the adult entertainment issue is what The American Center for Law and Justice focuses on; and that is what the Board needs.

Chairman Scarborough called for a vote on the motion. Motion carried and ordered; Commissioner Higgs voted nay.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to direct the County Attorney to send a letter to The American Center for Law and Justice law firm advising of the Board's action to retain such firm; and send letters to each municipality manager asking if the municipalities are interested in participating in the discussion concerning the adult entertainment issue. Motion carried and ordered unanimously.

Upon motion and vote, the meeting adjourned at 3:10 p.m.

ATTEST:

TRUMAN SCARBOROUGH, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

SANDY CRAWFORD, CLERK
(S E A L)