The Board of County Commissioners of Brevard County, Florida, met in special session on October 10, 1996, at 5:34 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Melbourne, Florida. Present were: Chairman Mark Cook, Commissioners Truman Scarborough, Randy O?Brien, Nancy Higgs, and Scott Ellis, Assistant to County Manager Peggy Busacca, and County Attorney Scott Knox. Absent was: County Manager Tom Jenkins.

Commissioner Truman Scarborough led the assembly in the Pledge of Allegiance.

PUBLIC HEARING, RE: ORDINANCE REGULATING ROADSIDE VENDORS

Leonard Beckett urged the Board to adopt the proposed ordinance before it tonight; stated it would help the small business community adversely affected by improper business doings in the County; it would help the bottom lines of a lot of the small industry in the County; and it will also improve a severe safety problem. He noted this will bring the County?s Ordinance in line with the State laws and the intent of the original County Ordinance; and it will make a nice cohesive enforceable Ordinance to alleviate a problem which has not been dealt with over a long period of time.

Edward Mashintonio requested the Board adopt the proposed ordinance to make the competition even among the businesses being affected by the roadside vendors.

Dan Jones stated he has the same concerns as the previous speakers; and requested the Board adopt the ordinance regulating roadside vendors.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to continue public hearing to consider ordinance amending Chapter 86, Article IV, Roadside Stands, and Chapter 62, Article VI, Zoning Regulations, Division 1. Generally; Division 4, Subdivision II. Unimproved, Agricultural and Residential, Subdivision VI. Commercial; Division 5, Subdivision III. Conditional Uses; Code of Ordinances of Brevard County, Florida; specifically amending Chapter 86 as follows: providing legislative intent; amending definitions of County road, operating, right-of-way, roadside stand; creating definitions for farmer?s stand and mobile vendor; amending penalty and providing penalty for refusal to sign citation; amending regulations of roadside stands in County road right-of-way; providing setbacks; providing exception for mobile vendor; providing joint enforcement by Sheriff?s Department and Code Enforcement; providing conditions of occupational license; requiring posting of occupational license and authorization from private property owner; specifically amending Chapter 62 as follows: providing definition for farmer?s stand; amending definition of roadside vendor stand; amending agricultural zoning use classifications to allow roadside stand as conditional use and providing conditional use standards; amending setback requirements for farmers? markets as conditional use in agricultural zoning classifications; amending provision for accessory use in commercial zoning classifications; providing severability; providing resolution for conflicting provisions; and providing an effective date, to the October 22, 1996 Board meeting.

Commissioner Ellis inquired about the definition of roadside stand on page 3 which says ?shall not exceed 30 feet.?

Assistant County Attorney Christine Lepore responded it is part of the definition of a roadside stand in the Zoning Code which was used to merge and make both definitions compatible.

Commissioner Higgs inquired is the 30 feet intended to mean square feet or in length; with Attorney Lepore responding in length.

Commissioner O?Brien suggested 200 square feet which is 20 x 10.

Discussion ensued on keeping people off the right-of-way, complying with setbacks, accessory use, traffic safety, existing structures, commercial classifications and agricultural property, primary structures, Conditional Use Permit (CUP) standards, farmers stands and farmers markets, and restroom facilities.

David Sims stated he has been in the roadside vendor business for five years; they pay taxes regardless of what other people say; they also have occupational licenses just as the florists do; they do not carry liability insurance as they have not been forced to; and they would like to stay in business and make money in Florida also.

Chairman Cook noted no one should be conducting business on a right-of-way and no one should be parking on it; and if someone is operating a business, he or she should have to have an occupational license.

Commissioner Scarborough amended the motion to include roadside stands meet the same setback requirements as primary structures, and Commissioner O?Brien accepted the amendment.

Chairman Cook stated the County is going to eliminate the 50 feet on Page 9 under (1).

Commissioner Higgs stated on Page 8, Item 12, Attorney Lepore indicated in the Code it references 75 feet; and that is the reason she included 75 feet.

Attorney Lepore advised this ordinance requires two public hearings; and staff can fix the inconsistency in this section to 50 instead of 75 and bring it back on October 22, 1996.

Chairman Cook called for a vote on the motion, as amended. Motion carried and ordered; Commissioner Ellis voted nay. Chairman Cook advised the ordinance will come back on October 22, 1996 for the second public hearing.

Commissioner Scarborough suggested staff send copies of the re-drafted ordinance to the Chambers of Commerce for their comments, if any.

REPORT, RE: ALLEGED CODE VIOLATION BY TIM FLACK

County Attorney Scott Knox stated at the last meeting the Board requested a report on Tim Flack?s situation; Assistant County Attorney Christine Lepore has prepared a memorandum; the whole issue arose in a neighborhood where there are nice homes with canal frontage; and Mr. Flack was accused of conducting an auto repair operation on his property in connection with the sale of used cars in a different location. He noted the Board authorized the County Attorney?s Office to seek an injunction against Mr. Flack after the Code Enforcement Board found him in violation twice for conducting that type of business; the injunction was obtained; the court found Mr. Flack in violation of the Zoning Code; and he was told to discontinue that operation. He stated subsequently, Mr. Flack engaged in that process again; he was brought back before the court on a motion for contempt; he was found to be in contempt by the court; the court ordered him to cease and desist; and his choices were to either spend time in the County jail or post a bond for $2,000 which is what he chose to do. Attorney Knox stated Mr. Flack has been spotted again by neighbors conducting the same business; photographic evidence was presented; a Code Enforcement Officer went to Mr. Flack?s house and spotted a commercial vehicle parked on Mr. Flack?s property which is in direct violation of the court order; the vehicle was parked there for the period of time that Mr. Flack went to New York, even though it was represented to the Code Enforcement Department that such vehicle would be used to haul trash away from the property on an on-and-off basis; and the vehicle was parked there permanently over that period of time. He advised based on the information the County Attorney?s Office has and the evidence presented to it, it is his Office?s position that Mr. Flack needs to be told by the court one more time that he needs to stop doing this; he apparently does not get the message yet; that is why the County Attorney?s Office is pursuing the contempt action; and it would probably result in the forfeit of the $2,000 bond.

Chairman Cook inquired what is the evidence; with Attorney Knox responding the evidence is from neighbors who have seen Mr. Flack operating and doing these kinds of things again. Commissioner Ellis inquired about the photographs of Mr. Flack working on a vehicle.

Assistant County Attorney Christine Lepore advised there are photographs, but not of Mr. Flack working on the vehicle because the neighbors are afraid to go out there to take photographs when Mr. Flack is working on vehicles; and they have taken photographs of the cars Mr. Flack did work on.

Chairman Cook inquired have the neighbors signed an affidavit to that effect; with Attorney Lepore responding they will if she asks them to and they have testified in court repeatedly.

Commissioner Ellis stated he does not understand why the photographs were not taken while Mr. Flack was working on the vehicles; with Attorney Lepore responding the neighbors would have to go outside and there would be a confrontation. Ms. Lepore noted Mr. Flack has reportedly physically threatened the neighbors when they have tried to do that; this is on a cul-de-sac; the homes are not facing each other; and they are not close enough where someone could take a photograph outside a window. Commissioner Ellis noted he does not understand.

Commissioner O?Brien stated if the Board is going to have a hearing like this, then Code Enforcement, a defense attorney, and someone from the other side need to be present so that both

sides of the issue are heard; it can hold a quasi-judicial trial the same as Code Enforcement; and the County Commission should not be doing this.

Commissioner Ellis stated what the Board is here for is whether or not it is possible to have the County Attorney take someone into court based on verbal testimony.

Commissioner O?Brien stated the Board will have to hear the whole trial up to that point. Commissioner Ellis inquired what is the County?s standard of evidence to take someone into court, and if it is simply verbal testimony, then it is not enough to take someone into court. Attorney Knox stated he does not have a problem obtaining the affidavits; with Commissioner Ellis responding it is still verbal and if someone can see what is going on then they can photograph it. Commissioner Ellis stated the contempt of court is based on the verbal testimony; what he is asking for is what is the level of evidence that the County requires to bring someone in on a contempt of court; and is it merely verbal or does there have to be something more than that.

Commissioner O?Brien noted even Code Enforcement needs more than that; and the Board should take no action.

Discussion ensued on having sworn affidavits from the neighbors.

Wayne Corbin advised he lives adjacent to Mr. Flack; he has witnessed Mr. Flack working on cars other than his personal vehicle; and he wants the repairs to stop.

Greg Mikelson stated he lives two doors down from Mr. Flack; this is a very pleasant neighborhood; Mr. Flack?s activities have gone on for years; it has been a major intrusion on their quality of life and property values; and the neighbors want this to stop. He urged the Board to allow the process to continue.

Marie Boucher stated she lives directly across the street from Mr. Flack; the problem is that Mr. Flack was still doing the work up until he left to go to New York; the people in the neighborhood are afraid of Mr. Flack; and this has been going on for over five years. She requested the Board believe everything the County Attorney has said; they have been to court; the Judge has found Mr. Flack guilty; and hopefully this can be pursued in court on Monday as it is presently set up.

Commissioner O?Brien reiterated the Board should take no action and let the courts take its course where it belongs.

Tim Flack stated he has never been able to receive adequate legal defense; he does not have $5,000 retainers; his neighbors are very believable; and this is mob rule. He noted he has a $2,000 bond that he had to beg to borrow; his neighbors do not want him there; it is evident that they want him gone; and they will stop at nothing until he is gone. He noted if Ms. Boucher wanted to take a picture, no one could stop her; he is not an attorney; he did not move to Florida to have all this grief; that house is his dream house; and he never asked for any of this. He stated he worked on cars at his house; he is no longer in business; he cannot be violating a judge?s order; such order says ?with the intent to sell?; there is not one of his neighbors who can testify that he has sold anything; and he has nothing to sell. Mr. Flack stated the playing field is uneven; he is not bothering his neighbors; and the truck that the neighbors are referring to is a four-cylinder Toyota which is registered to his mother. He advised he has no money to hire an attorney; he is unable to put on a defense; he is the loser and the victim; and he is sorry that all this has gone on.

Chairman Cook stated there need to be sworn affidavits from the neighbors who can testify under oath that a violation is still occurring.

Attorney Knox advised he does not have any problem getting the affidavits.

Upon motion and vote, the meeting adjourned at 6:54 p.m.

MARK COOK, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

ATTEST:
SANDY CRAWFORD, CLERK
(S E A L)