BREVARD COUNTY, FLORIDA

June 26, 1998

The Board of County Commissioners of Brevard County, Florida, met in special session on June 26, 1998, at 10:05 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Vice Chairman Truman Scarborough, Commissioners Randy O?Brien, and Mark Cook, Commissioners Nancy Higgs and Helen Voltz via telephone, County Manager Tom Jenkins, County Attorney Scott Knox, and Assistant County Attorney Shannon Wilson.

The Invocation was given by Commissioner Truman Scarborough, District 1.

Commissioner Mark Cook led the assembly in the Pledge of Allegiance.

Vice Chairman Scarborough stated Commissioners Higgs and Voltz are on the telephone for this meeting; and they are legally at such meeting as they can be heard and participate, although Commissioner Higgs is in Clayton, Georgia and Commissioner Voltz is in Maine.

Motion by Commissioner Higgs, seconded by Commissioner Cook, to appoint Julia E. (Tibby) Parker, 4550 W. Pine Road, Melbourne Village, Florida 32904 to the Charter Review Commission replacing Paul R. Gougelman III, with term of appointment expiring December 31, 1998. Motion carried and ordered unanimously.

Assistant County Attorney Shannon Wilson stated there are two things before the Board to consider in addition to the Governor?s Order; such Order was issued declaring a State of Emergency as a result of the brush and forest fires in the State of Florida; the newest Order bans the private use of fireworks and sparklers as defined in Florida Statutes 791.01; it allows for the counties to continue to consider allowing certain public displays of fireworks if they meet certain requirements in the Statutes and local officials deem that they meet any safety considerations that the local authorities may have; and the County Attorney?s office has prepared two documents for the Board to consider--an emergency ordinance as well as an emergency order. She noted there are some differences in the two documents; in the emergency order under Chapter 252, a state of local emergency can be declared; it allows counties to suspend such things as certain purchasing procedures and the Department of Public Safety to suspend the Union Contract during the pendency of the local emergency; and it would allow the County to potentially obtain certain federal and State monies to help reimburse the County for damages it sustains. Attorney Wilson stated the problem with the

local state of emergency and the emergency order is initially it can only be enacted for a period of seven days; the County is allowed to extend it for periods of seven days thereafter; the emergency

order staff has drafted for the Board?s consideration incorporates that, but it allows the Chair or the Acting Chair to extend the local order on his own authority and likewise, to terminate on his own

authority should the State of Local Emergency subside.

Vice Chairman Scarborough stated the first item is declaring a State of Emergency and inquired is there any degree of redundancy with what the Governor has done or is this something that would further enhance the County?s ability to be responsive. Attorney Wilson responded it further enhances the County?s ability to be responsive because it allows the County to suspend certain things like its own purchasing rules; under the Union Contract, if the County declares a State of Emergency, it allows it to suspend the effect of the Contract during only the period of the emergency; and it entitles the County to potentially obtain State and local dollars to reimburse it for some of the damages it sustains.

Commissioner Higgs stated when she talked to the County Manager this morning, he did not indicate that Brevard County had any fires burning at this moment; and inquired as to the need for the emergency purchasing and waiving of rules in regard to Union and other employee issues.

Chief Don Boykin stated the fires in Brevard County at this point are contained; and staff is monitoring the situation.

Attorney Wilson stated the ordinance was drafted because there were some concerns about having to deal with the situation every seven days; if the County uses the State of Local Emergency, either by ordinance or by order, it is limited to the seven days and then renewing it every seven days; an emergency ordinance was drafted that would allow something to be in place for a period of 60 days; and it tracks the Governor?s Order and bans fireworks and sparklers as defined in Florida Statutes 791.01, and provides for the sale or the private use to be determined to be an offense that would carry a penalty of 60 days or up to a $500 fine or both. She noted one additional difference between the emergency order and the ordinance is that in the emergency order, it prohibits open burning as was previously prohibited in the proclamations that the Acting Chair has signed earlier, and the ordinance does not contain that provision.

Commissioner Cook stated his understanding is one area that is in the ordinance is the fireworks displays, including municipal, would have to be over water; with Attorney Wilson responding that is correct. Commissioner Cook advised it would impact the City of Palm Bay and the Stadium. Attorney Wilson noted it certainly would impact the Stadium; and she had heard word that the City intended to have the fireworks over a retention area; but she cannot confirm it.

Commissioner Voltz stated last year the City had fireworks over a huge pond at Brevard Community College (BCC). Commissioner Cook stated he heard the Stadium is also going to have the fireworks over their pond, so maybe it does not affect either one.

Commissioner Higgs stated if the Board allows the discharge of fireworks when they are approved professional licensed fireworks displays which have been authorized and permitted in Section 1, and deletes "over water", there would be no question with the City of Palm Bay or the Stadium as long as they are licensed professional displays.

Commissioner Voltz inquired if the Board received the suggested changes she made to the emergency ordinance. Vice Chairman Scarborough stated such changes include deleting the word "urging" and inserting "requiring" in the second whereas on page 1, and deleting the word "should" and inserting "shall" in the fifth whereas on page 2. He noted where it talks about the prohibition,

there is a question of whether it is 30 or 60 days; with Attorney Wilson responding it is 60 days. Vice Chairman Scarborough stated he did not see the confiscation of fireworks in the Governor?s Order; with Attorney Wilson responding she would presume they would be siezed as evidence by law enforcement authorities as in any other crime. Attorney Wilson stated simple possession is not going to kick the ordinance in; they have not outlawed that; it is the actual use; and if individuals use it, it will be siezed presumably as evidence of the violation.

Commissioner Higgs inquired on Section 1 where it talks about over water, does the Board want to consider removing the words "over water", in light of the potential problem with the Stadium and the City of Palm Bay. Vice Chairman Scarborough stated he wants to see if there are any more reports from staff, take the public comments, and then motions from the Commissioners; and at that time, it can delete "over water" if it is only occurring in those two locations and is well controlled.

Mr. Jenkins inquired who will be regulating the public shows that are occurring within the municipalities; with County Attorney Scott Knox responding the city fire marshals. Mr. Jenkins stated the County has made arrangements with Space Coast Stadium to assist them by having fire trucks on site; he has had conversations with the Sheriff?s Department as they were interested in what their enforcement responsibilities were going to be; they requested Code Enforcement Department be responsible for doing checks at the various sales points; and they were happy to respond to complaints of people violating, but in terms of doing cursory checks of the sales points, they asked for the County to use Code Enforcement as there are not enough deputies to do it. He noted he indicated he did not think it would be a problem for Code Enforcement to support them; and if there is a violation or problem, Code Enforcement would contact and request assistance of the Sheriff?s Department.

Deputy Chief Bill Farmer showed a video presentation of an overhead aerial shot of some of the areas damaged by fire in Brevard County, including the Mondex property, property west of Grissom Road and TiCo Airport, Valkaria property southeast of Valkaria Airport, property northwest of Valkaria, Benjamin Road in Grant, and Kennedy Space Center property on North Merritt Island. Chief Farmer stated presently there are no aggressive or uncontained fires in Brevard County; and staff is monitoring the Mondex fire.

Commissioner Voltz inquired have there been any injuries to the firemen. Chief Farmer responded there have been several injuries; fortunately, none of them have required any hospitalization; most of them have been cuts, scrapes, and lots of heat exhaustion; and the Red Cross and Salvation Army are assisting in keeping them well fed and hydrated. He noted there is an action plan put out each morning for the crews.

Mr. Jenkins stated the County has received cash donations from various businesses which he has accepted; routinely the Board accepts them; and the County will make a presentation to the Board as to who all the donors have been.

Vice Chairman Scarborough inquired about the Division of Forestry Drought Index Measure. Chief Farmer responded a little less than 800 is the Sierra Desert; presently, Brevard County is at 733; in the Governor?s Executive Order, he stated the 400 Index was the level for sparklers; and Brevard County well exceeds that. He noted the light rain, which is bringing plenty of lightning, is not enough to affect the Index.

Glen Smith, representing SkyKing Unlimited, Inc., stated his fireworks company can respect what the Governor has done and the Board?s decisions it has to make today; they are very vital to the County and the State; and this is an emotional time of year. He noted everyone waits for Independence Day; it has been done for 224 years; and his Company has never been put in this predicament. He noted SkyKing has put in two new buildings in Brevard County, including new jobs and opportunities in the community; it followed the rules very strictly; if it rains and the Governor says on July 3, 1998, that the ban is lifted for fireworks sales, the County should not have a 60-day ban; and requested the Board keep an open mind. He stated he will be unable to reach the Board on July 3, 1998; and if the County puts a 60-day ban on fireworks, there is no opportunity for his Company which would damage his business permanently.

Vice Chairman Scarborough inquired if Brevard County received six inches of rain between now and July 3, 1998, and the Governor removed the ban, what would be the situation with the County?s ordinance. Attorney Wilson responded the ordinance would remain in effect for 60 days; however, the emergency order is terminable by its terms by the Acting Chair or the Chair at any point in time on their determination that the emergency no longer exist. She noted it is possible staff could draft the ordinance in terms of trying to delegate that same authority to the Chair or Acting Chair in the ordinance. Vice Chairman Scarborough inquired if it can be keyed to the Governor and Fire Marshal as the Chair does not have any special expertise, and would it be an unlawful delegation of authority; with Attorney Wilson responding she does not believe so under the circumstances. Attorney Wilson stated she is not sure six inches of rain will do it. Vice Chairman Scarborough noted the ban could be lifted if the Governor removed his and the County?s Fire Marshal agreed; what concerns him is a condition Statewide; there may be rain elsewhere, but Brevard County may remain dry; and he wants to have the Fire Marshal in control of keeping the County?s ordinance in effect. He stated the problem could exist of a local emergency, while the State emergency may be removed.

Public Safety Director Jack Parker stated staff has been told by the Division of Forestry that Brevard County is going to need at least 7 to 10 inches of rain before July 4, 1998 to get near the 400 level; and if there are no objections from legal staff, the Fire Marshal would be more than happy to have that responsibility and make that call if Brevard County gets that type of rain and the State ban is lifted.

Attorney Wilson stated the order might be more extensive than the Governor?s Order and the ordinance; the ordinance tracks the Governor?s Order outlined fireworks and sparklers as defined in the Statute; there are a few things in Florida Statute 791 which are defined outside of fireworks and sparklers, but they also give off sparks which could cause fires; they may include things such as glow worms, snakes, certain party poppers, and booby trap snappers; the emergency order includes those things; and many other counties are including them in their emergency orders.

Vice Chairman Scarborough noted it would be appropriate for the Board to take action on both items; there is some redundancy, but the order addresses things beyond; with Attorney Wilson responding affirmatively. Mr. Jenkins inquired does the Board need both an ordinance and emergency order; with Attorney Wilson responding negatively. Attorney Wilson stated it is a matter of how the Board wants to do it; and the primary difference is the seven-day issue with the order which is not an issue with the ordinance. Vice Chairman Scarborough inquired can the additional items in the order be incorporated in the ordinance; with Attorney Wilson responding affirmatively. Attorney Wilson stated the only concern is the counties and cities are insulated in giving some additional immunity because the Governor has actually issued the ban.

Motion by Commissioner O?Brien, seconded by Commissioner Voltz, to adopt Emergency Ordinance prohibiting the sale, use or discharge of fireworks during State of Emergency; providing for enforcement; providing for penalties; providing for conflicting provisions; providing for severability; and providing an effective date; and include changes by Commissioner Voltz on Page 1, second Whereas, deleting the word "urging" and inserting the word "requiring", Page 2, fifth Whereas, deleting the word "should" and inserting the word "shall", and Page 3, Section 1, to read "Such prohibition shall remain in effect for a period of time not to exceed sixty (60) consecutive days unless extended by further emergency order of the Brevard County Board of County Commissioners."

Vice Chairman Scarborough inquired does the Board want to have a methodology that if the action by the Governor is rescinded and there is 10 inches of rain, and the Fire Marshal thinks it is all right, that this would automatically be rescinded.

Commissioner O?Brien stated a sentence could be added to the Ordinance stating, "Based upon information given to the County Fire Marshal, that he be allowed to rescind the Ordinance based upon his decision."

Commissioner Higgs expressed concern about adding the Fire Marshal; and stated she would be more comfortable calling another meeting on July 3, 1998 if there is rain sufficient to lower the threshold.

Commissioner O?Brien stated the Board wants to be able to react extremely swiftly and lift the ban if it is no longer necessary; and if anyone is going to advise it to do that, it is going to be the Fire Marshal himself.

Commissioner Cook stated he does not have a problem meeting anytime the Board needs to meet, but if it does not want to do it that way, it can relate it to the Index which is 400; and the Fire Marshal can have the authority, with the consultation of the Chairman or Acting Chairman. Commissioner Higgs stated she can support it with the concurrence of the Chair or Acting Chair; and Commissioner Cook noted with concurrence of the Chair or Acting Chair on the recommendation of the Fire Marshal.

Vice Chairman Scarborough stated the motion can include with rescinding of the Gubernatorial Order, that the Index in all areas of Brevard County fall below 400, the Fire Marshal touch base with each Commissioner, and if one of the Commissioners has any concerns, that a meeting be called. He noted if there are no concerns, then the Fire Marshal would be able to proceed with lifting it.

Commissioner Higgs stated in a state of emergency in Brevard County, the Chairman is the person who makes the call; and with the Chairman and advice and concurrence of the Fire Marshal, given the Index and withdrawal of the Gubernatorial Order, there would be enough protection in there.

Commissioner O?Brien stated a new Section 6 can be added which will allow the Chairman, in consultation with the Fire Marshal, to rescind the Emergency Ordinance. Commissioner Higgs stated that is if the Index is below the threshold of 400 and the Governor has rescinded his Order. Vice Chairman Scarborough inquired if Commissioner Voltz accepts the motion, as amended; with Commissioner Voltz responding affirmatively.

County Attorney Scott Knox stated there is a difference in terms of reimbursement for costs that have been incurred in fighting these fires in terms of the Ordinance and the Order; and there are two different things here. Vice Chairman Scarborough inquired does the Board need to approve the Order; with Attorney Knox responding the Order would qualify Brevard County.

Vice Chairman Scarborough called for a vote on the motion, as amended. Motion carried and ordered unanimously. (See page for Emergency Ordinance No. 98-34E.)

Attorney Wilson stated there is the potential that under the Presidential Order there may be some monies independent of FEMA monies; there are also State monies that the County may be eligible for under the State of Local Emergency; however, the concern she has with respect to the Presidential Declaration is the declaration as to the emergency in Brevard County was limited to Fox Lake; and she would have to ask Emergency Management Department to find out if it has any new information on that.

Emergency Management Director Bob Lay stated the letter from the President indicated Brevard County as a whole; it did not state a specific fire within Brevard County; that is the initial letter that came out; and he believes the County is included in that. He noted Fox Lake was part of a fire complex at one time; it was some other monies that are being made available; the way this is being handled is very unusual; and it is not like the normal public assistance the County usually receives. He stated Brevard County is getting support on one hand from FEMA, but right now it is coming in through resources that are being made available, including tractors, helicopters, etc.

Attorney Wilson requested Mr. Lay provide copies of the documents to the County Attorney?s office; with Mr. Lay responding he has done that, but will provide them again.

Vice Chairman Scarborough stated he sees no problem in stating this twice if Brevard County can get financial assistance. Attorney Wilson stated it better assists the County in making sure it is eligible for any financial assistance that is out there.

Vice Chairman Scarborough stated the County does not want to get inconsistent with the Gubernatorial Order or the Ordinance as it can create confusion. Commissioner Cook stated the Order can reflect whatever is in the Ordinance; with Attorney Wilson responding staff can make those amendments.

Motion by Commissioner Cook, seconded by Commissioner O?Brien, to approve Emergency Order concerning declaration of State of Local Emergency, waiver of procedures and formalities otherwise

required, prohibition on open burning, prohibition on sale/use of fireworks and combustibles, enforcement, penalty, and including what is reflected in Emergency Ordinance No. 98-34E. (See page for Emergency Order.)

Motion by Commissioner Cook, seconded by Commissioner Voltz, to grant permission to refund special permit fees for tent sales of fireworks. Motion carried and ordered unanimously.

Motion by Commissioner Cook, seconded by Commissioner O?Brien, to cancel the July 1, 1998 special meeting concerning the use of fireworks. Motion carried and ordered unanimously.

Attorney Wilson stated the Executive Order also had a provision that prohibited open burning of campfires and bonfires, and inquired does the Board want to delete it from the Order; with Commissioner Cook responding negatively.

Upon motion and vote, the meeting adjourned at 10:56 a.m.

ATTEST:

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TRUMAN SCARBOROUGH, VICE CHAIRMAN

BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

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SANDY CRAWFORD, CLERK

(S E A L)