October 28, 2003

The Board of County Commissioners of Brevard County, Florida, met in regular session on October 28, 2003, at 9:02 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairperson Jackie Colon, Commissioners Truman Scarborough, Ron Pritchard, Nancy Higgs, and Susan Carlson, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Pastor Kim Teehan, North Merritt Island United Methodist Church, Merritt Island.

Commissioner Susan Carlson led the assembly in the Pledge of Allegiance.

APPROVAL OF MINUTES

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve the Minutes of the September 9, 2003 Regular Meeting. Motion carried and ordered unanimously.

REPORT, RE: KEEP BREVARD BEAUTIFUL AWARDS

County Manager Tom Jenkins invited Larry Weber of Keep Brevard Beautiful, Roadways and Landscaping Director Billy Osborne, and Landscaping Operations Manager Loren Rapport to address the Board.

Larry Weber stated last week they hosted the Building a More Beautiful Brevard awards; this is their 23rd year to do the awards; and there were 67 nominees throughout the County of buildings and landscaping. He stated there are four categories: new structures, major renovation, new landscaping, and landscape maintenance; and of the 67 nominees, a group of judges selected three winners from each category. He stated five of the twelve winners involved the County; and that is quite an accomplishment for the County. He encouraged the County and citizens to put in the extra effort to beautify their spaces. He stated under the new structure category, the winners were Park Villas in Titusville, Health First in Rockledge, and Melbourne Beach Public Library in Melbourne Beach; and the major renovation category winners were O’Brien Construction in Titusville, Italian Terrazzo and Tile in Melbourne, and Lee Wenner Park in Cocoa. He stated under new landscaping the County winners were the SR 405/SR 407 intersection in Titusville and Travis Park in Cocoa; and under landscape maintenance, the County project at SR 405 and US 1 to the Spaceport Regional Airport in Titusville was a winner. He presented five certificates to Mr. Osborne and Mr. Rapport for their hard work and dedication.

Loren Rapport stated he appreciates the support the Board has given to landscaping; this year they have been able to work with Parks and Recreation, Stormwater, Natural Resources, and many of the other departments; and it has been very successful.

Commissioner Scarborough thanked Mr. Rapport and Mr. Osborne; and stated the projects in his District started by going through the process of getting State matching grants and then finding the best materials at the best prices to maximize the dollars.

Chairperson Colon expressed appreciation to Mr. Osborne and Mr. Rapport on behalf of the Board.

RECOGNITION, RE: SPACE COAST GOVERNMENT TELEVISION

Mr. Jenkins recognized the staff of Space Coast Government Television; stated they do a great job of broadcasting the meetings and the other programming, seven days a week, 24 hours a day; and he appreciates all their hard work.

PERMISSION TO HOLD EXECUTIVE SESSION

County Attorney Scott Knox stated he needs to add one item to the executive session agenda at 11:30 a.m. today; and that is the Estate of Pinta v. Brevard County. He noted it has been advertised; it came up at the last minute; a trial is scheduled for next week; and there has been a proposed settlement that the Board needs to discuss.

Chairperson Colon inquired if there are four or five cases; with Mr. Knox responding four.

APPOINTMENT, RE: MERRITT ISLAND REDEVELOPMENT AGENCY BOARD

Commissioner Pritchard stated there is an appointment request for the MIRA Board for Ralph Perrone; his current appointee Michelle Daignault has opted to resign from the Board as she is expecting a child; and thanked Ms. Daignault for her service on the Merritt Island Redevelopment Agency. He stated he told Ms. Daignault that if she had the time to serve again, he would be interested in appointing her.

REPORT, RE: EMERGENCY MANAGEMENT VIDEOS

Commissioner Pritchard stated the Emergency Management Department recently completed several videos for its Countywide Project Impact Program; they are excellent reminders for all emergency preparations; and they are currently being aired on SCGTV. He suggested the ten-minute videos could be broadcast during Commission meeting breaks whenever possible.

ANNOUNCEMENT

Commissioner Pritchard stated he will be unable to attend the November 6, 2003 Zoning meeting due to the scheduled birth of his granddaughter, Emma. He stated he understands the suggested changes to the Zoning Agenda will come to the Board at that meeting; the changes, if adopted, will be effective in December 2003; and he fully supports the changes. He stated the new outline is easier to follow and understand.

ITEM REMOVED FROM AGENDA

Commissioner Higgs requested item III.A.7, Acknowledge Ordinance #2003-23 from City of West Melbourne, Re: Annexation of Property South Side of Eber Boulevard and East of Hollywood Boulevard, West Side of Minton Road and South of I-95, and West of Minton Road and South of Flanagan Avenue, be pulled from the Agenda for discussion. Chairperson Colon stated Commissioner Higgs will be leaving the meeting early; and inquired if she wishes to discuss the item now; with Commissioner Higgs responding it can be discussed with the other annexations.

REPORT, RE: LETTERS FROM THE PUBLIC

Chairperson Colon stated recently she has been getting things on Monday afternoon, and has not had an opportunity to fax the information to the other Commissioners; last week she got letters of concern and this week letters of support for the SEA ordinance; and distributed copies of letters from Dean Pettit and Lisa Smith to the other Commissioners. She stated she also received a letter from Sue Arnold concerning an upcoming zoning item.

ANNOUNCEMENT, RE: BLOOD DRIVE FOR CAMERON BARKLEY

Chairperson Colon stated 14-year old Cameron Barkley of Cocoa Beach is fighting for his life; Cocoa Beach Junior and Senior High School is holding a blood drive for him on Wednesday, October 29, 2003, from 8:00 a.m. to 2:30 p.m. She stated Cameron, who is fighting cancer, is at Arnold Palmer Hospital in Orlando; and he needs the help of the community. She requested the public show their support for Cameron through prayer. She stated her office has also gotten phone calls regarding nursing homes where there are allegations of misconduct; and it is hurtful to hear things like that. She stated it is alleged that people are being made to take medication in a way that is inhumane; and that is not acceptable. She stated as elected officials the Commissioners deal with more than just budgets, roads, and landscaping; they deal with human beings; Commissioners get phone calls about people needing help; the people have pulled together in the past; and she hopes they do so in the future. She requested people participate in the blood drive on October 29, 2003 and pray for the families in Brevard County.

ITEM WITHDRAWN FROM AGENDA

Mr. Jenkins advised item III.A.4, Waiver of Method of Calculation of Parking Space Requirements for Restaurants, Re: Melo’s Italian Ristorante Addition needs to be withdrawn and rescheduled as additional work is needed.

FINAL PLAT APPROVAL, RE: GRAND HAVEN, PHASE VIII

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant final plat approval for Grand Haven, Phase VIII, subject to minor changes if necessary, receipt of documents required for recording, and developer responsible for obtaining jurisdictional permits. Motion carried and ordered unanimously.

EXTENSION AGREEMENT WITH INDIAN RIVER NO. 1 DEVELOPERS, LLC, RE:
COMPLETION OF AQUARINA BOUELVARD AND SPANISH MOSS COURT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Extension Agreement with Indian River No. 1 Developers, LLC extending completion of Aquarina Boulevard and Spanish Moss Court to October 15, 2004. Motion carried and ordered unanimously. (See page for Agreement.)

UNPAVED ROAD AGREEMENT WITH WILHELM REINDL, RE: GOLDRUSH AVENUE

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Unpaved Road Agreement with Wilhelm Reindl for a building permit off an existing right-of-way known as Goldrush Avenue, which has been constructed to the standards of the Unpaved Road Code of Ordinances, Section 62-102. Motion carried and ordered unanimously. (See page for Agreement.)

PERMISSION TO ADVERTISE, APPOINT SELECTION AND NEGOTIATING COMMITTEES,
AND EXECUTE AGREEMENTS, RE: CONTINUING GEOTECHNICAL SERVICES

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant permission to advertise for continuing geotechnical services; appoint a Selection Committee of Assistant Roadways and Landscaping Director Charlie Burton, Regional Stormwater Utility Director Ron Jones, Transportation Engineering Director John Denninghoff or their designees, and Engineer II Bruce Auchter and Engineer II Devin Swanson; appoint a Negotiating Committee of County Manager Tom Jenkins, County Attorney Scott Knox, and Transportation Engineering Director John Denninghoff or their designees; and authorize the Chairperson to execute professional service agreements with the appraisal firms and the County Manager or his designee to execute renewal options as outlined in the agreements. Motion carried and ordered unanimously. (See pages for Agreements.)

RESOLUTION, RE: AUTHORIZING NO PARKING ON STREETS BETWEEN MIDNIGHT
AND 7:00 A.M. WITHIN BENNINGTON, SOMERVILLE, AND TEMPLETON
SUBDIVISIONS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution authorizing the installation of “No Parking on Streets between 12:00 Midnight and 7:00 a.m.” signs within Bennington, Somerville, and Templeton Subdivisions, as requested by the Board of Directors of Viera East Villages District Association, Inc. Motion carried and ordered unanimously. (See page for Resolution No. 03-281.)

APPROVAL AND SUBMITTAL TO FLORIDA DEPARTMENT OF TRANSPORTATION, RE:
VALKARIA AIRPORT EXPENDITURE PLAN

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve the Valkaria Airport Expenditure Plan; and authorize staff to submit the Plan to the Florida Department of Transportation (FDOT) per the guidelines established by the FDOT. Motion carried and ordered unanimously.

APPROVAL, RE: OPEN PURCHASE ORDERS FOR ALL LIBRARIES AND SUPPORT
PROGRAMS WITH BOOKS ON TAPE, BOOK WHOLESALERS, INC., AND DEMCO, INC.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve open purchase orders for media material to Books on Tape at $35,925; Book Wholesalers, Inc. at $46,450; and Demco, Inc. at $39,700. Motion carried and ordered unanimously.

APPROVAL OF APPLICATION TO PROLITERACY WORLDWIDE, RE: NATIONAL BOOK
SCHOLARSHIP GRANT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve Application to ProLiteracy Worldwide for National Book Scholarship Grant of literacy books and materials valued at $2,997; and authorize the Chairperson to execute the agreement, if the grant is awarded. Motion carried and ordered unanimously. (See page for Agreement.)

APPROVAL, RE: LIBRARY SYSTEM FY 2004 PLAN AND UPDATED LONG-RANGE PLAN

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve the Library System FY 2004 Plan and updated Long-range Plan, to be sent to the Florida State Library as part of the State Aid package. Motion carried and ordered unanimously.

APPROVAL, RE: FLORIDA COASTAL MANAGEMENT PROGRAM GRANT PROPOSALS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize staff to submit two proposals for matching funds to the Florida Coastal Management Program (FCMP) for construction of raised boardwalk between Bonsteel Park beach access and Barrier Island Ecosystem Center, and development of interpretive display for Barrier Island Ecosystem Center; and authorize the Parks and Recreation Director to execute the grant documents. Motion carried and ordered unanimously.

APPROVAL, RE: NATIONAL OCEANOGRAPHIC AND ATMOSPHERIC ADMINISTRATION
COASTAL REMOTE SENSING PROGRAM GRANT PROPOSALS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize staff to submit proposals for matching funds to the Department of Commerce, National Oceanographic and Atmospheric Administration (NOAA) Coastal Remote Sensing Program for application of hyperspectral imagery to the mapping and eventual eradication of Brazilian pepper from conservation and private lands within Archie Carr National Wildlife Refuge; and authorize the Parks and Recreation Director to execute the Grant documents. Motion carried and ordered unanimously.

AGREEMENT WITH CARIBBEAN CONSERVATION CORPORATION, INC., RE:
OPERATION OF BARRIER ISLAND ECOSYSTEM CENTER

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Agreement with Caribbean Conservation Corporation, Inc. for operation of the Barrier Island Ecosystem Center for a period of five years. Motion carried and ordered unanimously. (See page for Agreement.)

AMENDMENT, RE: BREVARD COASTAL SCRUB ECOSYSTEM FLORIDA FOREVER
PROJECT

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to authorize submittal to the State’s Acquisition and Restoration Council of an amendment to the Brevard Coastal Scrub Ecosystem Florida Forever Project for the OLC, Inc., Babcock LLC, and Hersch properties. Motion carried and ordered unanimously. (See page for Amendment.)

TASK ORDER 00-21 WITH S2L, INC., RE: CLOSURE OF WEST SLOPE OF CENTRAL
DISPOSAL FACILITY

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Task Order No. 00-21 with S2L, Inc. to provide construction administration services for Phase III West Slope Closure Project at the Central Disposal Facility in Cocoa, not to exceed $156,300. Motion carried and ordered unanimously. (See page for Task Order 00-21.)

TASK ORDER 00-22 WITH S2L, INC., RE: PHASE IIIA INSTALLATION OF LANDFILL GAS
WELLS AT CENTRAL DISPOSAL FACILITY

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Task Order No. 00-22 with S2L, Inc. to provide construction administration services for Phase IIIA Installation of Landfill Gas Wells at the Central Disposal Facility in Cocoa, at an estimated cost of $113,600. Motion carried and ordered unanimously. (See page for Task Order 00-22.)

APPROVAL, RE: ALTERED AND ADDED PRECINCT LEGAL DESCRIPTIONS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve revised precinct legal descriptions for changes to existing precincts due to annexations by the Cities of Cocoa, Melbourne, Titusville, and West Melbourne, and Town of Palm Shores; and approve precinct legal descriptions associated with creation of new Precinct 217 as a result of a City of Cocoa annexation. Motion carried and ordered unanimously. (See pages for Revised Precinct Descriptions.)

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to appoint/reappoint James Ridenour to the Tourist Development Council with term expiring October 28, 2007 and Ralph Perrone to the Merritt Island Redevelopment Agency with term expiring November 13, 2004. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve the Bills as submitted. Motion carried and ordered unanimously. (See page for List of Bills.)

RESOLUTION, RE: COMMENDING EAGLE SCOUT ERIK A. SHAPIRO

Chairperson Colon read aloud a resolution recognizing and commending Erik A. Shapiro for his accomplishments including attaining the rank of Eagle Scout.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution recognizing and commending Erik A. Shapiro for his accomplishments including attaining the rank of Eagle Scout. Motion carried and ordered unanimously. (See page for Resolution No. 03-282.)

Erik Shapiro expressed appreciation to the Board for the Resolution; stated his scouting experience has been fun; and it is great to be recognized. Chairperson Colon presented the Resolution to Mr. Shapiro.

RESOLUTION, RE: COMMENDING SPACE COAST AREA TRANSIT AND ITS
CONTRACTING PARTNERS

Chairperson Colon read aloud a resolution commending Space Coast Area Transit and its contracting partners for being named Outstanding Public Transit System in the Nation in Category 2 by the American Public Transportation Association.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt a Resolution commending Space Coast Area Transit and its contracting partners for being named Outstanding Public Transit System in the Nation in Category 2 by the American Public Transportation Association. Motion carried and ordered unanimously. (See page for Resolution No. 03-283.)

Transit Services Director James Liesenfelt thanked the Board for its support; stated he wishes he could have all the employees present but they are out running the buses; and every one of the contractors has been with them for a long time, and they are quality firms. He stated there are four different categories; they are category two, which is 2 million trips to 4 million trips; last year they did 1.1 million trips; and they are one of the smallest systems in category 2. He stated they beat out college towns and commuter rail firms; and it is quite an accomplishment. He stated the goal is to win it again; but to do that they will have to get to 4 million trips, so hopefully in a few more years they will be back.

Chairperson Colon presented the Resolution to Mr. Liesenfelt.

RESOLUTION, RE: PROCLAIMING WEATHERIZATION DAY

Commissioner Higgs read aloud a resolution proclaiming October 30, 2003 as Weatherization Day.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to adopt a Resolution proclaiming October 30, 2003 as Weatherization Day. Motion carried and ordered unanimously. (See page for Resolution No. 03-284.)

Gay Williams, Housing and Human Services Director, stated the funding for the weatherization program is provided by the Department of Community Affairs to help residents by reducing their energy expenses; and they are able to help approximately 30 families with simple inexpensive measures such as installing low-flow shower heads, replacement of windows and doors, and caulking, as well as the replacement or servicing of inefficient heating systems. She thanked the Board, the County Manager, and Assistant County Manager Don Lusk, on behalf of the Weatherization team, for their continued support of this service in the community.

Commissioner Higgs presented the Resolution to Ms. Williams. She inquired how people can contact the Weatherization Program if they need assistance; with Assistant County Manager Don Lusk responding they should call 633-2076 for more information.

RESOLUTION, RE: CONGRATULATING MILA ELEMENTARY SCHOOL

Commissioner Pritchard stated he will be presenting this resolution to the Mila Elementary School faculty in November when they are going to be burying a time capsule. He advised they buried a time capsule 50 years ago, but they cannot find it, so they are trying to find someone who may have knowledge as to where the first capsule is located.

Commissioner Pritchard read aloud a resolution congratulating Mila Elementary School as it celebrates its 50th Anniversary of continuous education, and inviting the public to join in celebrating this historical event on November 6, 7, and 8, 2003.

Motion by Commissioner Pritchard, seconded by Commissioner Higgs, to adopt a Resolution congratulating Mila Elementary School as it celebrates its 50th Anniversary of continuous education. Motion carried and ordered unanimously. (See page for Resolution No. 03-285.)

REPORT, RE: RIBBON-CUTTING CEREMONY AT F.I.T.

Chairperson Colon stated today at 1:30 p.m. at Florida Institute of Technology there will be the ribbon-cutting ceremony for the Columbia Village Dorms; and each building is named after one of the astronauts lost in the Columbia disaster. She stated the event is open to the public.

PUBLIC HEARING, RE: RESOLUTION ACCEPTING IMPROVEMENTS IN WOODLANDS
WATERLINE MSBU

Chairperson Colon called for the public hearing to consider a resolution accepting improvements in Woodlands Waterline MSBU.

There being no comments or objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt a Resolution accepting improvements in the Woodlands Waterline Municipal Service Benefit Unit and adopting the final assessment roll. Motion carried and ordered unanimously. (See page for Resolution No. 03-286.)

FEASIBILITY OF ACQUISITION, RE: SNUG HARBOR WATER AND SEWER SYSTEM

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to appoint a negotiating committee composed of the County Attorney, the Water Resources Director, and the Environmental Services Assistant County Manager to negotiate a purchase price for the acquisition of Burkim Enterprises. Motion carried and ordered unanimously.

ANNOUNCEMENT

Chairperson Colon stated there are time certains at 1:00 p.m. for Item VI.A.2, 1:30 p.m. for Item VI.F.8, and 2:00 p.m. for Item VI.F.3. She stated at 11:30 a.m. the Board will be meeting in executive session.

DISCUSSION, RE: CLERK OF COURT’S FINANCIAL AUDIT

County Manager Tom Jenkins stated the Board requested this item be placed on the Agenda; and they have invited auditor Jim Wright of Berman, Hopkins, Wright & Laham to be present to respond to questions. Chairperson Colon stated the Clerk of Courts is also present.

Jim Wright, Senior Partner with the CPA firm of Berman, Hopkins, Wright & Laham, stated Linda Crawford who is audit manager for the Clerk’s engagement and Kevin Ragan who is staff auditor are also present.

Chairperson Colon stated at a previous meeting the issue came up regarding auditing the Clerk’s office and the fact that the auditors had not been able to finalize the report, so she wanted to get some feedback and information as to why that is the case.

Mr. Wright stated for the past three years the records have been unauditable due to the Clerk’s fee book software; and the Clerk can give a much more detailed analysis of what is going on there. He stated they are not able to take an individual transaction that flows through the Clerk’s records through General Ledger because for those years there was no usable General Ledger, which is the culmination of accounting records that they generally look at.

Chairperson Colon inquired what happens with something like this; with Mr. Wright responding in terms of the three years, there is no audit. Mr. Wright advised the good news is for the year ending September 30, 2003, the records are auditable; they have been in the field for approximately a month, and so far everything looks good; but they cannot tell the ultimate results of the audit until late December or early January. He stated as they go along, they will get more of a feel for how the Clerk’s books and records are. Linda Crawford stated they are going to start with an initial balance sheet audit; all of the prior years will be captured into assets and liabilities that they are going to start on October 1, 2002; and at that point they will do some work on the balances, so everything will come forward into those amounts, either as assets, liabilities, or excess fees that have been returned to the Board over the prior years. She stated for 2003, they will start October 1, 2002 and move forward; they will audit the transactions as they come through for 2003; and whatever has transpired in the past, they have disclaimed an opinion on.

Commissioner Carlson distributed paperwork to the Board, but not the Clerk; and stated she has specific questions on the audit. She stated on page 1 of the audit report for the Clerk, the auditors state that due to software issues, they have been unable to satisfy themselves as to whether all transactions were properly recorded in the accompanying fund financial statements, and because of the significance of the matter discussed in the preceding paragraph, which would be the software issues, the scope of the work was not sufficient to enable them to express an opinion on the fund financial statements. She stated the next page is a memorandum dated October 20, 2003 from the Clerk; Mr. Ellis stated for more than a year the issue has been working through a backlog of data and what software that remains to be fixed is similar to a punch list for a building; the report says significant issues while Mr. Ellis refers to small errors; and inquired why is there a difference of opinion and does Ms. Crawford agree with Mr. Ellis’ characterization of small software errors. Ms. Crawford stated from their standpoint when a client cannot produce a general ledger, that is a significant software issue; but Mr. Ellis is looking at the fee book, which is the lifeblood of what he is accounting for. She stated Mr. Ellis is making sure that the money coming in is going to the proper places and being accounted for properly; but from their standpoint unless there is a general ledger, they have no balances to audit; and that is just a difference in focus. Commissioner Carlson stated she is trying, through the audit practices and what she has seen and received from the Clerk, to understand how that is impacting the auditability of the Clerk’s accounts and how it is progressing. She stated on page 6 under the column titled records-modernization trust, there is an entry for net change and a fund balance showing a positive change of $36,651; that positive change results in a fund balance beginning of $358,137; the next entry is labeled cumulative effect in prior years of accounting error, and has a negative entry of $358,037, which yields a fund balance at the beginning of $100; and inquired if the reported cumulative effect in prior years accounting being only $100 different from the original beginning fund balance is an amazing coincidence or is the reported prior year’s accounting error only a convenient estimate. Ms. Crawford responded Mr. Ragan has started looking into the details of this and how it is going to impact their opening balances; they do not have an answer yet; but they will be looking into it as they progress in the audit. She stated they are just at the beginning stages of the audit; the general ledger is still being put together; but it looks promising. She stated they have looked at the process; it is auditable now; and she does not see a disclaimer of opinion happening here. She stated they are down to why type of opinion the audit evidence will yield once they gather the evidence; and this is going to be part of it. Commissioner Carlson requested as they progress, they get back to her on that. She stated on pages 16 and 17 the report says that they were unable to obtain reasonable assurance about whether the Clerk’s fund financial statements were free of material misstatement, and that they are unable to determine whether instances of non-compliance exist that are required to be reported under governing auditing standards; and in the next paragraph it says a matter was noted involving internal control over financial control and its operation that is considered to be a reportable condition. She stated a reportable condition is defined as a significant deficiency in the design and operation of the internal control or financial reporting; and it is important to get that on the record so people can understand what is going on there. She stated the paragraph goes on to say a material weakness is a condition in which the design or operation of one or more of the internal components does not reduce to a relatively low level the risk that misstatements in amounts that would be material in relation to the fund financial statements being audited may occur and may not be detected within a timely period by employees in the normal course of performing their assigned duties; and inquired if that means the Clerk could be making mistakes and not even know about it. Ms. Crawford stated when they know that a general ledger does not exist and therefore, reconciliation of the account balances have not happened because account balances have not been accumulated into an official general ledger that can be audited, that is considered to be a serious weakness and a reportable condition; and that is what they did in the report. She stated now the Clerk’s office is going back, looking at the processes, capturing the data, and looking at reconciling the accounts; they have been keeping track of outstanding checks and can come up with a cash balance for the general ledger checking accounts; and the Clerk is doing the best he can under the circumstances. She stated she is going to be gathering evidence and seeing if everything she is being told is what is, in fact, happening.

Commissioner Carlson stated the paragraph closes with the statement that the auditor’s consideration of the internal control of financial reporting would not necessarily disclose all matters in the internal control that might be reportable conditions and accordingly would not necessarily disclose all reportable conditions that are considered to be material weaknesses; and inquired if that means the Clerk’s internal control situation might be even worse than it appears. Ms. Crawford advised that is not language structured specifically toward the Clerk; it covers just about every audit; there is no way they can look at 100% of the transactions; so they look at the control system and do some tests on those systems. She stated they test the account balances; there are hundreds of people bringing in information that the Clerk, Board, and offices are gathering into their different records; and they do a sample approach to determine whether they feel comfortable with those balances in material aspects. She reiterated this is not targeted at the Clerk, but is language that is in just about every audit. Commissioner Carlson stated she appreciates that; the Clerk had problems and issues in the last three years; there are unauditable records; and it is difficult for the Board to find the accountability it would like to find for budgetary purposes and things like that. She stated the entry on page 10, under statement of fiduciary funds indicates that Mr. Ellis is responsible for control over $81 million including almost $53 million that belongs to other governmental units; looking in additions, deductions, and then actual total liabilities balance, it comes out as $9 million; but the oversight is over the governmental units of $52 million; and requested an explanation. Ms. Crawford stated that is correct; they are taking into account all of the different fees that are being collected throughout the County; the Clerk is charged with taking in this money and then sending it out to the various entities or individuals that the money belongs to; and it is a significant responsibility, which is why getting the fee book is so important and the heart of what the Clerk does. She stated that is why the Clerk’s office had to spend so much time in getting that together and working in order to get a general ledger to audit; she understands what has been happening over the years; and it would have been ideal to have a general ledger upfront to be able to audit, but that did not happen. Commissioner Carlson stated the amount of money is why sensitivity is fairly high on this issue; and as soon as the auditors can get a good audit, it would be great to have them come back and explain their findings and how things have been done successfully or not.

Commissioner Higgs stated the auditors have a lot of years of government accounting experience; and inquired if they had an instance where other agencies or government entities have faced three years without being able to have an opinion. Mr. Wright responded in his 25 years of auditing experience, he has not run across this particular situation. Commissioner Higgs inquired what do the auditors normally do when there is one year of inability to come up with a statement; with Mr. Wright responding there is no other option than the opinion they issued. He stated the Clerk has his own individual financial statements that they render an opinion on; his financial statement is pyramided up into what is called the consolidated financial report for the Board (CAFR); on an individual level this is all material to his financial statement; but once merged into the Board’s information, it becomes very immaterial to the financial statement, so they were able to get some comfort at that level. He stated they met with the Clerk on numerous occasions and advised they really need to do an audit; they do not know after the fourth year, whether this impacts the Board’s opinion; and they are still looking at if they cannot do an audit and come up with a clean opinion, what impact that has on the Board’s opinion. Commissioner Higgs stated there has been a financial statement and audit of the Board every year; and inquired how does that affect the Board’s CAFR. Mr. Wright responded in the past three years, the Clerk’s financial numbers merged into the Board’s CAFR; and once all those are merged into the CAFR, the Clerk’s portion is so immaterial that they are able to render an opinion on the full document. Commissioner Higgs inquired if $81 million is immaterial; with Mr. Wright responding yes, but those transactions are not at the end of the year, and are flow through and gone. Ms. Crawford advised they do a limited amount of work each year to feel comfortable; the Clerk has been keeping track of outstanding checks; they are somewhat comfortable about the numbers they are putting in for cash and with their fiduciary funds; everything is flowing through as a liability; and there is no equity or fund balance with regard to the big numbers being talked about. Commissioner Higgs stated Mr. Wright indicated he had not run across this situation in previous instances; and inquired if he got input from the Auditor General or the State regarding what should be done. Ms. Crawford responded the Auditor General is happy as long as he receives a report that has some opinion. Commissioner Higgs stated there is no opinion; with Ms. Crawford responding it is a disclaimer of opinion; and they are happy just to get a report. Commissioner Higgs inquired if the Auditor General of the State of Florida would not care if the auditors came up with an opinion that said they had no idea or that people are stealing money as long as they got a piece of paper; with Ms. Crawford responding that is what she was led to believe; and she could not get any other information. Commissioner Higgs inquired if they do not know what has happened for three years, what are the risks; with Ms. Crawford responding with any audit, there are risks because they do not audit 100%. Ms. Crawford stated there may be something that does not come to their attention; but they still look each year at the internal control system; they look to see that there is separation of duties; she has interviewed numerous employees in the Clerk’s office; and nothing has come to her attention that is cause for alarm. She stated they will go through the audit; she will see how that is panning out and finish out her assessment from there; but she did not have any alarms. Commissioner Higgs stated in trying to come up with a budget, the Board deals with projections; and inquired if the numbers the Board is getting from the Clerk are actual numbers, projections, or estimates. Ms. Crawford responded they will do further work on the balance; but she is pleased to report that with the cash balance, they were very close to what was estimated; and in fact, the number is actually a little higher for cash than was projected, which is the opposite direction from the risk that the Board is expressing concern with. She stated it seems that things are going to line up pretty well; but they will know that once they put together the general ledger in full starting October 1. She stated they are going to look back and see where they thought they were going to be as of September 30; they had lots of meetings with the Clerk and staff on this; they are going to look at what was seen in the reports versus where they say they truly are, and start auditing; and so far they have not seen anything that is a real problem. She stated the Clerk is still putting together some of the October 1, 2002 balances; and they will advise the Board if there is anything of concern. Commissioner Higgs inquired does the Board pay the same thing for no opinion as for a good or bad opinion. Ms. Crawford advised there is so much work that they manage to find things to keep them busy and give the best bang for the buck.

Commissioner Pritchard inquired if the cash estimate of the Clerk’s office was conservative; with Ms. Crawford responding that is what it looks like right now; they have not tested those balances fully; but Mr. Ragan has done quite a bit of work, and it looks good. Commissioner Pritchard stated it says for the past three years the auditors do not know what has been going on; but the auditors have been talking to the Clerk’s staff; and inquired if there is any idea as to what has been going on in the Clerk’s office. Ms. Crawford stated she interviewed staff, which described how much work had to go into the fee book; it was reasonable that it would take quite a bit of time to put that together; it is in excess of 1,500 pages of detail; and there was a team of people working on it. She stated they are not software experts; but they will be getting some significant details from the Information Technology Department to make sure things are the way they should be. Commissioner Pritchard stated the auditors have a good understanding after talking to the Clerk’s staff as to the concerns, problems, and issues for the past three years since Mr. Ellis was elected to this office; and inquired if there is any reason to believe that the software incompatibility is not the problem behind not having a general ledger or fee book. He stated this was a system that Mr. Ellis inherited; and inquired if the auditors know anything about the system, what the problems have been, and what attempts there have been to resolve the problems. Mr. Wright responded the software that was purchased was run in other states; but the Clerk’s fee book was much more complex than those in the other states. He stated each individual traffic ticket spiders out and everyone gets a cut; everything going into the fee book is much more complex than the original software was designed to support; prior Clerk Sandy Crawford had a system that was adequate, but not as good as he would like; so he tried to improve it; but once the new software was installed, it could not deal with the number of transactions or the variations in the receipts and disbursements like it was designed for and used in other states. Commissioner Pritchard inquired what happened that made September a pivotal point in that certain functions can be audited; and were there significant changes in the software programs that provided a general ledger or fee book. Ms. Crawford advised the fee book was brought up to speed and was able to be fully functional during 2002; from there, it is going forward to put together a general ledger; and the best opportunity was to go ahead and get a balance sheet at September 30, 2002. She stated they could not make the deadline for the Auditor General requirement to have the financial statement sent up by September 30 of the year following the close; by September 30, 2003 they would have to send the September 30, 2002 financial statements to the Auditor General; and they could not get the general ledger together that quickly. She stated they were able to see that they could put one together for 2003 going forward, so they are going to go back and do October 1, 2002. She stated from what she witnessed last year, the fee book was still being fixed; once it got fixed they had to come back through; they were running two weeks of work of disbursements through the new process; they had to do it in stages because there was so much data; and she is thankful that the system did capture the data. She stated it was then a matter of running it through the fee book; they ran it through in test cases to make sure it was working; then it could be run live; but by that point, it was too far into the year to do anything about last year, so now they are focusing on being able to do 2003. Commissioner Pritchard inquired if the auditors have run across a situation like this before; with Ms. Crawford responding she has not, but it is very complicated software. She stated the Clerk and the Tax Collector have very complicated jobs, especially the Clerk; and it seems reasonable that it could take a lot of time if the software really is not up to what is needed for Florida. She noted all she has to go on now is what the staff manager is telling her.

Chairperson Colon stated Ms. Crawford mentioned that by December the auditors would be squared away with the numbers; and inquired is that correct; with Ms. Crawford responding they plan to be in full swing by December; and the Clerk’s office feels that it will be ready for them to come in at that time. She stated they came in and looked at October to let Mr. Ellis know if they saw any problems with it being auditable; Mr. Ragan spent a lot of time looking at October; she looked at the processes as they were being developed to see if they looked reasonable; and they have gone forward from October and so far have not seen anything that looked like it would be a serious concern. She stated they are waiting for the Clerk’s office to finish; it would be more efficient for them to come in when the Clerk’s office is done; and they will go through and focus full time attention then rather than coming behind in pieces. She stated the deadline for the Clerk’s office to finish is December 1; and in December or January, the auditors should be able to finish and have some answers for the Board.

Commissioner Scarborough stated he understood the answer about the Auditor General, but beyond that there are sound auditing practices; and inquired if the Board should amend the contract with the auditors to provide additional work in the interim as records are coming together. Mr. Wright responded they have been discussing that with Mr. Ellis as they go along because his current software is labor intensive for him. Commissioner Scarborough stated it is incumbent upon the Board to make sure the contract encompasses the capacity to audit correctly and bring this to closure so as it matures, the auditors will come before the Board expeditiously. Mr. Wright stated they have been discussing the fee issue and that it is much more labor intensive than the normal general ledger is. Commissioner Scarborough stated the Board is fully cognizant that there are things that the auditors normally do not do; and it would be his desire to see that the auditors are empowered to carry out the task as it is of concern that it be brought to closure. Mr. Wright stated they are not going to short-cut the audit; and it is incumbent upon them to get it right. Ms. Crawford advised they have laid out the plan to take care of it.

Clerk of Courts Scott Ellis stated he is here at the behest of the Board; and suggested the Board may want to ask questions before he speaks.

Chairperson Colon stated when Finance Director Steve Burdett came before the Board, they talked about the auditing and the fact that there has not been any auditing in the last three years; and the Board felt it was proper to hear from the auditors on where the Clerk is. She stated she has not heard anything that she is uncomfortable with; they have known all along about the software; the auditors are comfortable to go in and look at the books in December; and inquired if Mr. Ellis concurs with what the auditors are saying and will be ready. Mr. Ellis responded yes, but that is a general financial audit; last year they went through a traffic ticket audit at the behest of the cities and the County; and the $80,000 audit on the traffic ticket revenue came out fine. He stated a number of cities then asked him to do a self-audit of the cities, working with them; they took a month’s worth of tickets for Satellite Beach and tracked them all the way through the system to verify the tickets were turned in, put into the system, money was collected, and money was redistributed to Satellite Beach; and that gets back to the most important function, which is the fee book. He stated that is the daily revenue disbursement; it is the most important function of the Clerk’s office; at the end of the day, they have to be able to hand all the money that comes in during that day back out to a multitude of State, County, and city agencies; that was the first thing that had to be corrected; and the program began running in July 2001. He stated just because they were able to get it running in July 2001 does not mean they started running the books for July 2001; to get the totals current for the entire office, it is necessary to go back to November 1999; they began running forward from the conversion; and in March 2002, they caught up and were able to do that day’s receipts and process that day’s fee book. He stated at that point they went back and put together the last of the biweekly disbursements to all the agencies; and that is when they had a meeting with all the agencies and cleared the books with all the agencies. He stated that period took approximately two months; it triggered the traffic ticket audit; there were also issues with other cities so it is not as if there has been no audit; and the audit they worked on the most was the fee book audit, which is where the money is going. Chairperson Colon inquired if Mr. Ellis is comfortable with the December 1 deadline to basically close those books; with Mr. Ellis responding they have been working closely with the auditors since spring.

Commissioner Scarborough inquired if Mr. Ellis anticipates needing additional service of the auditors to begin the closure; with Mr. Ellis responding yes, they have estimated approximately $15,000 to $20,000, and they told the auditors the Clerk’s Office is willing to pay for that. Commissioner Scarborough inquired if that will not require any action of the Board; with Mr. Ellis responding that is correct.

Commissioner Pritchard inquired if the software that Mr. Ellis inherited is doing the job or should they be getting another software package. Mr. Ellis advised they have looked at other packages being implemented around the State; but it is hard to trade the pig in a poke that you know for the pig in the poke that you do not know. He stated a number of counties have software in development, but they are not finished; most Clerk’s offices in the State have homegrown software similar to what the Brevard Clerk’s office had prior to November 1999, which was all programmed in-house; there are a lot of firms working on this; and hopefully over the next few years, some of them will get there. He stated it does not make any sense right now to go out and buy another unproven package and risk going through another total collapse of the office as happened in November 1999. Commissioner Pritchard stated there was a looped system from the Budget office to the Clerk’s office where numbers could be posted directly into the Clerk’s system; with Mr. Ellis advising that is between County Finance and the Budget office using SAP, which is the County financial package. Mr. Ellis stated his problem is not County Finance and the County’s accounting; it is Clerk’s Finance, which is specifically money coming through the Clerk’s office that is tied to the FACTS system. He stated unfortunately SAP cannot deal with the system because it is not set out to handle all the various receiving functions for the courts; the package has to work closely with the courts function; and that is why his number one priority has been the daily fee books. He stated before they could get that reconciled, all the agencies that draw money were dealing with estimates; and for them to be able to get their books squared away, it was necessary to get the dailies down and done properly, which they did. He inquired if everyone got the timeline that he faxed out yesterday; and stated the next big project was the collection agency, which they did; that brought in about a million dollars to the County and the cities; and it is not like other projects have not happened during this time period.

Commissioner Higgs inquired if the Contract with the auditors is with the Board; with County Manager Tom Jenkins responding yes. Commissioner Higgs stated the auditors’ fiduciary responsibility is to the Board; and the Board would have to pay for any additional services. County Attorney Scott Knox stated he does know what the Contract says about additional services. Commissioner Higgs stated she thought the Contract was with the Board and the auditor was responsible to the Board; and requested an explanation. Mr. Jenkins stated it would be an amendment to the existing Contract. Commissioner Higgs inquired if the Board would have to agree to amend the existing Contract; with Assistant County Manager Stockton Whitten responding within the existing Contract, the Board pays for its audit; and the Charter officers pay for their audits out of their own funds, although the Contract is with the Board. Commissioner Higgs stated there needs to be some clarification on whose responsibility it is and how that is paid. Commissioner Scarborough stated someone else could pay for it; and the Board would be the recipient of the product. Commissioner Higgs requested staff provide additional information; and stated the integrity of the audit to the buyer who is paying is very important. Commissioner Scarborough stated that is not an indication that there will be compromise; and regardless of who pays for it, the audit is a product that is produced for the Board. Chairperson Colon stated the Charter officers pay for their own audits. Mr. Ellis advised it is a fund transfer; when they did the traffic ticket audit, the Clerk’s office paid for it by transferring money to the County; and the County paid the auditors.

Commissioner Scarborough stated he has friends in the Clerk’s office who say the flaw was made when they did not run simultaneously before they shifted systems. Mr. Ellis stated normally they would be run parallel before making the transfer; and with a mission critical system, if it fails on day one and cannot be brought back up, it should be shut down and the new system turned back on. He stated unfortunately a decision was made by Mr. Crawford that he was moving forward with the new system; and as the Board is aware in 1999, it basically collapsed the entire office. Commissioner Scarborough stated that is what they are dealing with today, the one event of not running parallel. Mr. Ellis stated this is just the financial side; they are not dealing with the court side today; but when he says collapse the entire office, it was not just the financial side, but the court side went with it. He stated the financial aspect is a small part of the problems over the last few years because the court side also collapsed; and for six months, they could not do an electronic receipt for payment at the counter.

Commissioner Pritchard stated there seems to be a question of impropriety as to who would pay for the audit and compromising the integrity of the audit; and inquired if it matters to the auditors if the Clerk pays or the Board; with Mr. Wright responding no. Mr. Wright advised they track the time it takes to do each audit; the Clerk or the Board does allocate the fees back to the individual entity, so the Board is not getting charged for the audits of the Clerk, Property Appraiser, etc. He stated he does realize excess fees are turned back in totality, so the Board does end up paying for it to some degree; but they have done other engagements for other constitutional officers that have not flowed through the Board, such as a payroll audit or sales tax audit for the Tax Collector; and those have never flowed through the Board’s contract.

Commissioner Pritchard thanked the Clerk of Courts for opening a satellite office on Merritt Island to better serve the constituents.

Commissioner Carlson stated the Commissioners received the Clerk’s timeline, which started in November 1999 and goes through June 2003; this is what she has been looking for; and she appreciates him putting it together. She stated she would like to see the remainder of the timeline showing what is being targeted strategically to happen in the future so the Board will know what is going to happen; and if he does not make that, he can at least provide an explanation and status report, which would help ease the stress. Mr. Ellis inquired if Commissioner Carlson wants a timeline on the audit issue; with Commissioner Carlson responding yes, until things are resolved to the best extent the Clerk can do as far as the system and the software problems. Commissioner Carlson stated it can be done on a quarterly basis so the Board knows what is expected and whether the outcomes are reached; and she would like to see more strategic thinking showing what things are left to do and when the Clerk expects them to be accomplished. Mr. Ellis stated the issue of the general ledger, which is based on the end of year set of books, has been moved over to the SAP on the County system rather than wait for the contractor to get the program fixed. Commissioner Carlson reiterated her request for an update or timeline; and stated what Mr. Ellis provided is a lot easier to read than the past updates. Mr. Ellis stated this is just the financial side; and when they put the timeline together, they removed all the issues that were court-related that did not apply to the audit.

Jim Rosasco stated he has two children at Gemini Elementary; he is retired; and the only real estate he owns is his home in the South Beaches. He stated he has no financial interest in any company or projects in the County other than as a taxpayer; and he has never held nor ran for public office. He stated as a citizen, he is concerned by the actions of the Clerk of the Courts; he was given one of Mr. Ellis’ flyers at a debate over the one-cent sales tax referendum; and it referred to the County’s Citizens Annual Financial Report. He stated he got a copy of the CAFR from the library; the numbers on page 18 under County financial information showed general government expenditures exceeded revenues by three to four and one-half percent for each of the past years, which startled him; and he inquired how could this be. He stated the footnotes show that the general government revenues include all current revenues received for the fiscal year and excludes borrowed funds and available beginning balances; and general government expenditures include all outlays for operations and capital projects for the fiscal year including use of borrowed funds; and inquired what kind of reporting is this. He stated it looks like Enron in reverse; instead of overstating revenues like Enron, someone is understating revenues for some reason; the Citizens Report referred to the Brevard County Comprehensive Annual Report as a source of this data; the relevant numbers are on pages 20 and 21 of the Report; and whoever put the Citizens Report together did not report the whole picture. He stated they did not include the financial sources which total $18.8 million, which would mean instead of overspending by $14.4 million, the County has a $4.4 million surplus; the total government funds balance increased from $202.5 million to $207.2 million; and inquired who would purposely distort the numbers to make the County look bad. He stated he discovered that four of the five Charter officers had clean unqualified audits while the Clerk of Courts has failed to get an opinion; and he later learned the Clerk of Courts has not passed an audit since 1999. He stated he visited the Clerk of Courts website; he found three red highlighted links, Notices, Sarno Investigation, and Florida Today Audit Comments; the Notices link is official business related to fees; however, the other two links appear to be Mr. Ellis’ personal correspondence. He stated at the Sarno investigation site, there is a copy of a letter from the independent appraiser that the Florida Department of Law Enforcement retained to review the landfill acquisition; it is a three-page letter; but only the first and part of the second page are available. He stated someone cut the bottom off the second page after the first example of one of the scenarios may have taken place; and inquired what kind of abuse of office is going on here. He stated the Citizens Annual Financial Report is published by Mr. Ellis and blatantly misrepresents the facts; he uses an official County website maintained at taxpayers’ expense to post his personal correspondence; and he edits third-party correspondence from an independent appraiser to suit his own personal agenda and posts it on an official County website. He stated there are signs all over the County saying “No more payoffs”; but he has lived here for more than six years and never heard of any payoff scandal at any city, the County, or the School Board. He stated Mr. Ellis’ explanation is that when someone tells you if you do not pay a one-cent sales tax, they will raise your property taxes, that is extortion; and if someone votes for it, that is a payoff. He stated he has not heard any city, County, or School Board official say those words; everyone in government and the School Board has walked on eggshells to be sure not to say that; and he is not confident that all the potential business owners who may consider relocating to the County understand Mr. Ellis’ spin on the slanderous reference to payoffs. He stated the Clerk of Courts has failed to be successfully audited since 1999; he got the official adopted budgets for fiscal years 2000-2001, 2001-2002, and 2002-2003; and since Mr. Ellis took office in fiscal year 1999-2000 through 2002-2003, he has increased his drain on the General Revenue funds by $1.6 million or 19.8%, has increased compensation and benefits by $2.6 million or 19.2%, and increased full-time employment positions by 66 or 20.6%. He stated Mr. Ellis’ response to the auditors’ comments dated August 11, 2003 is that he is still trying to construct the general ledger; that is also the response to last year’s auditors’ comments about some prior year’s liabilities that were not recorded; and Mr. Ellis is still trying to construct the general ledger, which is the most basic accounting tool, after three years and close to 20% increase in personnel.

Chairperson Colon advised Mr. Rosasco’s time has expired; with Commissioner Higgs requesting he be allowed to finish.

Mr. Rosasco stated Mr. Ellis has been in the spotlight campaigning against the one-cent sales surtax by criticizing the School Board and County government for wasteful spending; but he is the chief financial officer and a fiduciary for hundreds of millions of dollars; and he cannot provide the most basic accounting tools for audit in three years. He stated according to the latest figures from the Florida Board of Education for FY 2000-2001, out of 67 districts, Brevard County public schools ranked 52nd in funding, 55th in spending, third in direct classroom expenditures, and 64th in district level spending; and according to the March 2003 edition of the Florida County rankings for 2002, out of 67 counties, Brevard County is ranked 58th in total millage, 64th in County government operating millage, and 61st in district School Board millage; and considering the great quality of life and vast array of services enjoyed in the County, the numbers show the School Board and County are doing an excellent job with tax dollars. He inquired how does Mr. Ellis justify his lack of performance since taking office, and what gives him the right to use his office and tax dollars to promote his personal political agenda. He stated Mr. Ellis owes the citizens of the County and its elected officials an apology for his obvious negative distortion of the facts and his irresponsible attack on the County’s reputation.

Mr. Ellis stated he expected the One for Brevard sales pitch today. He stated there is an operating deficit that has been addressed by the independent auditors who are present today as well as Moody’s Investors’ Report; and reiterated capital money cannot be used for operating expenses. He stated he has gone over this with the speaker at least three different times in the past; but apparently Mr. Rosasco does not choose to check out his facts. He stated as far as threats, he does not have the One for Brevard literature with him today, but perhaps the speaker can provide that; one of the items on it clearly asks what will happen if the sales tax fails, and states, “property taxes will undoubtedly go up”; and that is a threat. He stated if the schools were 52nd in funding when this is the ninth biggest school district, children would be going to school in wooden shacks; and the County has the same per capita funding as all the other counties, which is the purpose of the State Constitution. He stated the funding comes from different sources; but it is impossible for Brevard County to have less funding than Baker County and have 70,000 students. He stated as for his performance, he is sorry he does not meet Mr. Rosasco’s expectations; but the people in his office have done a pretty good job considering where they have come from to where they are today; and anyone who uses the courts can say there has been a world of difference on that side and it is much better. He noted he does not take a lot of credit for that; all he does is let other people do their jobs; and they get it done. He stated as for his personal agenda, he will apologize; he does not hide behind surrogates; if he does not support the tax, he will come out personally and say he does not support it; and he will not send other people out in the field to do his dirty work for him. He stated of the people who support the tax, some have spoken on it while others have not; but it is blatantly one-sided to say they are only providing information and not telling anyone how to vote, and then showing the “Santa Claus” bag but not telling what the bill will be. He stated it was a three-two vote of the Board to put the referendum on the ballot; he does not know if he addressed all the questions; and he guesses the sales tax debate got free air time.

REQUEST FOR WAIVERS, RE: DUN HUNTIN SUBDIVISION

Commissioner Pritchard stated he walked the property with Mr. Swann; it is a beautiful area; and he has no doubt he will build a beautiful community. He stated item #6 is to waive the swale construction requirement along the north and south property lines; and his concern is whether that would have any effect on runoff on neighboring properties. Jim Swann stated it is a temporary waiver; and there will be a note on the plat that if and when that part of the land is ever platted or developed into housing lots, the drainage has to be accomplished. He stated right now the drainage works; the temporary pipe under the road that Commissioner Pritchard said was not significant gives the drainage that is needed now, and has for 50 years in the grove; but it will be replaced if they ever make the tract into lots, and the drainage will be put in. He stated they hope they will not put in drainage exactly as it is drawn on the plans today; but that is the commitment they have made unless they can offer a suitable alternative at the time it is done. He stated there is a system in place that they maintain; it works; and it is not going to be impacted by the Board’s decision today.

Commissioner Pritchard stated referring to item #6, Mr. Swann says it would be a temporary waiver of the swale construction. Transportation Engineering Director John Denninghoff stated his understanding is the proposal has been that as homes are constructed or lots developed and sold, that they would install the swale on an as-needed basis. Commissioner Pritchard inquired if Mr. Denninghoff’s understanding is it is temporary waiver and as homes are constructed, the water runoff issue would be addressed; with Mr. Denninghoff responding that is correct. Commissioner Pritchard inquired if there is any need to change the wording to insure that is the understanding; with Mr. Denninghoff responding in the past when there have been issues such as this, when a home is constructed they typically do not get constructed from the downstream portion of the swale upwards; the lots come in randomly; and if one is developed not correctly, it could block the flow of water for other lots and cause flooding problems. Mr. Denninghoff stated the problem with these types of conditions is that sometimes it is not thoroughly performed to insure that drainage actually will work, so there is a challenge there; and he is not sure how to deal with it. Commissioner Pritchard stated the only concern he has is he gets a lot of calls from people who have a house built next to them at a new elevation, the runoff is not taken care of, and then they have a flooding problem; and inquired if Mr. Denninghoff is saying there is no problem with the way #6 is written because staff is assured as development progresses, the water runoff issue would be addressed. Mr. Denninghoff stated it could be addressed; and the only concern would be if it was properly implemented at the time the home was built. Mr. Swann stated staff is requiring a note on the documents that requires it to be addressed; the way it is written is required by the way the Ordinances are written; but they have handled it in another way; and if they have not handled it, he will be glad to not do it. Commissioner Pritchard stated he just wants to be sure the runoff does not affect the neighbors.

Mr. Swann stated he does not blame Commissioner Pritchard; he built a lot of developments, sat on the Water Management District Board for ten years, and has dealt with a lot of water issues himself; and the Board is being responsible to ask the question. Commissioner Pritchard stated he has walked through Mr. Swann’s acreage; it is a beautiful property; and he is sure whatever Mr. Swann is going to build is going to enhance the neighborhood.

Commissioner Higgs stated there is a request for waiver of the sidewalk requirement along South Tropical Trail; but it is her understanding the County is constructing a sidewalk along South Tropical Trail, so it would seem unwise for the Board to waive that. Mr. Swann stated to his knowledge, there is no sidewalk being constructed on that side. Mr. Denninghoff stated they are not currently building a sidewalk at that location; they have been extending sidewalks and retrofitting sidewalks on South Tropical Trail for some time; and they are about to connect the SR 520 sidewalks with the networks that is already constructed around Cone Road. He stated it does extend south of Cone Road; and they eventually foresee the time when it will be extended to this area. Commissioner Higgs stated in the past the County used to hold in escrow money for sidewalks, if they are not constructed now; with Land Development Specialist III Gwen Heller responding that is correct. Ms. Heller advised currently there is a program where they enter into sidewalk assessment agreements; they are typically done on commercial sites and not subdivisions because with the subdivision the agreement would be passed on to the homeowners association, which would be responsible for construction of the sidewalks; but that is an alternative that is available, if the Board chooses. Commissioner Higgs stated she can understand not having a segment there in the middle of no other connections; but it would be wise to set aside monies to do that; and that is one of her concerns. She stated another concern is the pipe under the road; and staff is not comfortable with that being of substance enough to meet the long-term needs. Mr. Swann stated it is not supposed to meet long-term needs; there is an orange grove there now, which has a drainage system that works; and they have restructured the impervious surface that he put down to go through a treatment system. He commented on putting in a system for a subdivision, which he does not want to make. Commissioner Higgs stated Mr. Swann is developing a subdivision; with Mr. Swann advising he is creating five lots and some tracts. Mr. Swann stated there is nothing in the County Ordinances that allows the tracts to be treated like something that has to come back to the Board later, such as phases; staff is pushing him to solve the issue by having everything in place to make a subdivision that works, if he even builds a subdivision, which he does not intend to do anytime soon; and he is putting notes on all the documents and plats that say certain things will be done such as solving the drainage issue in the back; but to do it now would bring him to an impasse. He stated that is okay; and he does not have to do this because he is not going to clear all those trees. He stated sometimes governments are wonderful because there are regulations that filter out everything that is unusual, mostly bad things; but sometimes good things get caught up in the regulations; and in this case, he may be caught up in it, which is okay. He stated if he built the sidewalk now, he would have to tear our some of the beautiful scrub; and if he built the drainage system now, he would have to tear out some beautiful pine trees. Commissioner Carlson stated there is no scrub there. Mr. Swann stated Merritt Island has scrub all over it, but it is not large enough to be included in anything of importance to the Board; and he knows his land pretty well, and there is definitely scrub. He stated when the tracts are developed, the drainage system that Commissioner Pritchard asked about has to be installed, and then the temporary pipe can be filled up with concrete. He stated it is working today, but will go way in the event of subdividing the land. Commissioner Higgs inquired how can the Board insure that; with Mr. Swann responding it is noted on the plat. Commissioner Higgs inquired if this is a temporary waiver of the pipe; with Mr. Swann responding affirmatively.

Commissioner Pritchard stated regarding the easement and sidewalk requirement, at this point staff has said it is in the process of building a sidewalk; and whether or not Mr. Swann is going to have any connectivity is going to depend on what kind of easement there is along Tropical Trail as a lot of the properties own to the middle of the road, which will create a problem. He stated the item say there is a stipulation that an easement is to be provided; and he would think that having an easement for future construction of a sidewalk would be sufficient, and is not interested in tying someone’s money up in an escrow account waiting to see if a sidewalk is going to be built. Commissioner Higgs inquired who is going to pay for the sidewalk. Commissioner Pritchard responded that would be a condition that could be on the different drawings as to who would be responsible for constructing the sidewalk; but if the Board takes money now and puts into an escrow account, it may be better used for other purposes rather than having it just sit there for the next ten or fifteen years until the development comes to fruition. Commissioner Higgs stated if it can be handled such that the general taxpayer does not pay for the sidewalk, she is open to listening. Commissioner Pritchard stated he does not want to see Mr. Swann’s money escrowed today for something that is going to happen far in the future. Commissioner Higgs stated she does not want to see taxpayer money paying for the sidewalk; with Commissioner Pritchard agreeing. Ms. Heller stated by Board direction, escrow sidewalk assessment agreements are executed where the developer would set aside an easement on the plat and enter into the agreement that says when the sidewalk is ready to be constructed in front of the property, the developer would agree to pay for that portion of the sidewalk. She stated they no longer escrow funds; but by executing the agreement and recording it in the public records, it commits the developer to covering the cost of the installation. Commissioner Higgs inquired what if the developer is gone; with Ms. Heller responding then the homeowners association would be responsible.

Commissioner Scarborough stated there are no plat notes, but he heard that the sequence of developing the drainage is critical because if it develops piecemeal, it may not work as well as if it was done all at once. He stated he does not have any problem going in this direction; but he would be more comfortable if he was looking at the precise language because that could be critical later. He stated they may want to present only the drainage on the back of a particular lot; that would create the problem some Commissioners have referred to; and inquired in doing the notes, has anyone come up with the particular language being proposed. Mr. Denninghoff responded he has not seen that kind of language. Commissioner Scarborough stated he is not prepared to vote today.

Mr. Swann advised the Board would see this again; this is not the final time; and the plat will come to the Board for approval, so the representations being made today would have to be on it or the Board could not sign it.

Commissioner Scarborough stated he hears Mr. Swann, but by the same token he would like to know what he is voting on now; if he votes in the generality, he may be bound by some misstatement; and the Board gets caught in twists where it says too much and does not say it correctly. Mr. Swann stated all he can do is address the issue. Commissioner Scarborough stated Mr. Swann may have a majority vote of the Board; but he likes to have things clean at the front end rather than messy.

Chairperson Colon inquired if it is okay with the Board to come back on this issue. Commissioner Pritchard inquired what would be the next step. Chairperson Colon inquired when would it come back.

Mr. Swann stated he has caused enough trouble; and he will withdraw the application. He stated he is trying to make a square peg fit in a round hole; it is a big County; and the Board has a lot of stuff going on.

Commissioner Scarborough stated if Mr. Swann walks out and has a heart attack, the property would go through his estate to someone else; all of a sudden the Board would be dealing with someone else who would have no idea what was said here today by Mr. Swann; and that would be a problem. He noted he does not give things to Mr. Swann, but to the land; and therein lies his problem.

Mr. Swann stated he understands; he is trying to be honest with the Board; this is not the kind of things to do in this world today; and it was probably a bad idea. He stated the Board spent a lot of time with him at the last meeting; and he appreciates it very much. He stated he does not have to do this, so he will just let it go; and the next landowner can figure out what to do 20 years from now.

Chairperson Colon stated they are almost there; she would like to support the project; and they are just talking about wording.

Ms. Heller stated when Mr. Swann first came in with the subdivision design and the waivers, staff felt it was important to get the waivers addressed first before entering into a full engineering review because they were critical issues that had to be addressed for the preliminary plat and final engineering; and they directed Mr. Swann to bring the waivers forward and get them addressed at this time. She stated if the Board wants staff to go one step further and consider the language to include on the plat for some of the waivers, they will be glad to do that. Chairperson Colon inquired how long will it take to insert that kind of language; with Ms. Heller responding probably a couple of weeks. Chairperson Colon inquired if Mr. Swann could come back; and stated she would like to see this project go through. Mr. Swann stated he is hearing a lot of jousting going on; that is not his style; and he appreciates the time the Board has given him. He stated this may not work; and he needs some time to think about it. Chairperson Colon stated hopefully the Board will see Mr. Swann again; and staff will be bringing the language back.

The meeting recessed at 10:47 a.m. and reconvened at 11:05 a.m.

APPROVAL, RE: DESIGN PLAN FOR MARINA PARK REFERENDUM PROJECT

Bea Polk requested an explanation of the recommendation for the Marina Park referendum project. Commissioner Scarborough requested the staff presentation be given first.

Charles Nelson, Parks and Recreation Director, stated at the last meeting the Board asked that staff take the two plans and do a pros and cons assessment of the two projects; and they have prepared that. He stated the Board challenged staff with designing a park that met the needs of the referendum and the needs of the community without taking into consideration the periphery discussion that has been part of the previous process; so what is before the Board are two park plans that functionally work with the differences of parking on the north or parking on the south. Mr. Nelson stated there are some very minor differences between the plans; staff has outlined those and included the advantages and disadvantages; and while there are not any significant differences relating to function, there are some opinions as to how some of the placements may work; but those are choices. He reiterated the Board has two park plans, either of which would function; and there is an opportunity to do some tweaking. He stated as far as Ms. Polk’s question about which one he prefers, that is a choice issue; both will function and provide the community with a park it can be proud of; and it is up to the Board and the community.

Bea Polk stated if there is hardly any difference and Vectorworks says it is no longer involved, there is no reason to have parking on the north when it could be on the south; and that would solve a lot of problems. She stated if Vectorworks has completely pulled out, which she does not believe it has, the City of Titusville should have no objection to putting the parking on the south; but if Vectorworks or some other company is thinking about it later, this is one of the issues that should be settled now and forever because referendum money should not be used to give parking to a business. She inquired if it can be put in writing that a business can never come into the park and use it; and stated if not, she disagrees with putting the parking on the north and recommends putting on the south so everyone will know no business is going to use it.

Joan Wheeler stated to provide a guarantee that there will be no private use of the northern part of the park, it must be made physically impossible for it to be used; there is an agreement that nobody has approved yet; the City made an Agreement with the State 40 years ago that states the same thing; but for three years the City has tried to find a way around it. She stated an amendment to the Agreement is not going to be anything more than something they can amend again or take out as the City pleases; and the only security would be to have the parking on the south end. She stated she keeps hearing the City has the last say; but when she sees the referendum that was approved three years ago, as far as she is concerned, they agreed to it. She stated now something has come up where special interests want to use it; Section 12 of the Agreement says the County may construct permanent improvements to the premises; but in Exhibit B it says that the County shall not construct any facilities which cost more than $5,000 except on the submission of applicable plans and specifications to the City Manager for review and approval by the City; but it does not say what happens if the City does not approve it. She stated in Section 18 it says, “the County shall give consideration to the input and recommendation of the North Brevard Commission on Parks and Recreation” and “once the budget is adopted, except in emergency situations, no funds over $5,000 will be transferred or reallocated from the North Brevard Commission on Parks and Recreation.” She stated the last sentence says, “the City recognizes the final decision rests with the County after giving consideration to input from the City and the North Brevard Commission on Parks and Recreation”; so the Board has authority, maybe more than the City does. She stated she would hate to see the County bow down to what the City wants every time it decides it needs something. She stated this is a temporary solution for Vectorworks and it is supposedly a non-issue; but she does not believe it is a non-issue at all; and no one knows what is going to happen a month, year, or five years from now. She stated they need to be protected; they are claiming the buffer is a disadvantage; the buffer would cost approximately $10,000 at the south end; but with the parks and the marina parking going in there, the buffer would be absolutely necessary. She stated there is question about the 230 feet between entrances not being enough; that is like three full houses away; and on her block there are only two houses and people can still turn the corner, so she does not understand the reasoning for thinking that is something bad. She commented on signage.

Thelma Roper read aloud from the minutes of the Parks and Recreation Committee for August 11, 2003, “Mr. Reilly reported that in a recent meeting, the City Council voted to put parking in the northwest corner of the park without naming Vectorworks. If the committee gets out of the politics, it can go ahead and give the City what it wants and then get on with the project. Mark Leslie noted that the concept will work with or without the Vectorworks shared use issue. The City likes this concept. Mr. Reilly reported the City did submit a plan showing that was their desire and they are so adamant they are going directly to the Board of County Commissioners.” She stated it further says, “if the Committee could get over this mountain, it could design a Little League ballfield. Mr. Reilly stated the Committee is not the politicians; and the politicians are working on this.” She stated this tells her what they think of the committee and the Commission. She stated this has been a very long issue; and with parking on the south, they would have protection. She stated the committees are advisory to the Board; all of the proposals that were presented were not given to the Board with a recommendation as to which the Committee preferred, which would have been the correct way to do things; but it was not done correctly because other proposals were put forth. She stated this does not fly; if the Board is not going to totally protect the park, it should let it go; but it is her understanding everyone wants the park to stay a park. She stated there are a handful of people who do not want it to be a park; but the majority do want it to be a park; and if it is not protected and usage is allowed that should not be there, it is not going to be a park. She stated there is no need for more condominiums in Titusville on the waterfront.

Walter Pine stated he is one of the people who put in a proposal that the Board does not have before it; under the Government in the Sunshine law, the advisory committees are supposed to give the Board comments and everything; but he does not see a report from a single advisory committee in the packet, so he assumes the Board does not have one. He inquired why the Board wastes the taxpayers’ money on advisory committees that it does not get reports from. He stated staff had several meetings prior to any advisory committee meeting in which decisions were made outside the Sunshine Law; he brought this to the Board’s attention; and he appreciates the advocacy of a couple of Commissioners. He stated the issue at this point is not just Marina Park, but doing things right; if the Board does not intend for things to be hidden from the public, they should be put in the sunshine; and obviously this process has not been fully in the sunshine. He advised he currently has a court case that will go before the judge for decision; and it is ridiculous that he as a citizen has to go to court to ask the Board to do what it is required to do. He stated there were many comments and proposals made during the meetings that the Board does not have; and an advisory committee is supposed to take all this information, prioritize it, and say which is the best, second best, and so forth. He stated the advisory committees bring it to the Board; and the elected officials decide. He stated they may choose the best or the worst; it is the Board’s choice; but if it is going to have an advisory committee, it should be advising the Board, which is not here. He stated Mr. Nelson has referred to “we”; and inquired who is we, and is it the Marina Park Referendum Committee, the North Brevard Commission on Parks and Recreation or whatever. He stated first Marina Park Referendum Committee produced a proposal; that was supposed to be the Board’s advisory committee; and then the North Brevard Commission on Parks and Recreation changed the proposal. He stated Government in the Sunshine has not been complied with; the Board does not have all the proposals that were made or all the information; and the Board is aware of this because he has brought it to the Board and it has seen copies of things he sent. He stated if the Board is not seeing the things he sent, it should be dealing with its staff because it would be clear that staff had withheld the information from the Board. He stated if the staff is withholding information and decisions are being made out of the sunshine, and if the Board is unwilling to do what is required, then it should not be sitting on the dais. He reiterated government in the sunshine is an important thing. He stated the park belongs to the State; it is a piece of property they have been given the right to do certain things on; and nobody has asked the State if it can change it and put additional buildings out there. He stated the first right of refusal belongs to the property owner; the State has not been asked; and he has given the Board letters on that providing proof. He stated they have designed a park before finding out if the State will entertain a change; and something is not right. He stated there is a process the government is supposed to work under; there are checks and balances that are supposed to work; government is supposed to work in the sunshine; and it is not. He stated the issue is now before the Board; and requested that all proposals be given equal consideration, equal access, and equal time for presentation, and the Board comply with the law. He advised he only filed charges against one Commissioner; and they were significant enough that the Sheriff’s Department took them; the Commissioners are going to find out the law applies to them as much as anyone else; and he is going to make sure of that. He stated the Commissioners should either comply with the law or quit claiming to be representing the public because their first duty is to comply with the Constitution and the law; and some Commissioners are not.

Susan Canada stated what Ms. Roper read to the Board is just part of the minutes of the meeting; Mr. Reilly was on the committee at that time; and it shows how much the committee kept getting things shoved down its throat by the City. She stated Mr. Reilly stated Mr. Horner suggested it be recognized it was a County referendum and not a City referendum; and the City’s desires must be considered for their facilities within the corporate limits of the City, but not to the exclusion of the 40,000 other citizens in North Brevard. She stated they are thinking this is a Titusville matter, but it is not a Titusville matter; and this has been the predicament. She read aloud from a letter from DEP dated October 22, 2003 to Jeff Gray with Vectorworks, “a hazardous waste complaint inspection was conducted at your facility on October 16, 2003.” She stated the letter goes on to advise the inspection is conducted under certain authority, and outlines all the sections for authority. She stated the letter continues, “in order that the Department may complete a review and report of your facility, you are requested to provide the following information within 20 days of your receipt of this letter: (1) an inventory of the 31 drums of unknown contents located along the western fence line, provide supporting documentation needed to identify said drums, material safety data sheets, analytical results, etc.; (2) indicate which drums, if any, contain usable product and provide a timeline for the use, conduct waste determinations on any drums deemed waste, and provide accumulation start duties for any hazardous waste and how it will be disposed of, and (3) indicate the accumulation start dates of three drums marked acetone for recovery and document how often acetone is distilled.” She stated this is what the Board is putting parking next to on the north end; and the barrels were on Marina Road, which was licensed to Jmart in 1996, but not for surplus and salvage. She stated the Board is talking about putting parking on the north end; but there is Vectorworks with drums of who knows what that were put out there; and the drums have been moved recently, but the Board does not even know where they were moved to. She stated the drums could be in the building or covered in the south parking lot; and that is not the type of neighbor who will respect her wishes and not park in the parking lot, or do anything else agreed to. She stated DEP still has not determined if what was in the barrels is hazardous; DEP has to wait until Vectorworks provides an inventory or analysis; Vectorworks did not know what was in the barrels, which she finds hard to believe; and that is a pretty bad neighbor. She stated there is talk about an amendment to the Interlocal Agreement; but the Agreement can be amended now and six months from now, it can be amended again so there is nothing to guarantee it will not be amended in the future. She stated there is already a letter from the Titusville City Manager in 1963 or 1964 agreeing there would be no licensees or concessions at the park; and the City quickly forgot about that letter. She inquired what is going to happen 20 years from now when the referendum is paid off or even before that. She stated Plan 2, the City plan, looks like a parking lot, not a park; and it is not as safe for children because there is parking in almost every direction of the park. She stated the entries are as close on Plan 1 as they are on Plan 2; on the County plan the boaters will not all get there at the same time; but if parking is moved as the City plan has it to the north end, it is going to be near Vectorworks, which has shifts that get out at a certain time, so there would be a lot of traffic.

Chairperson Colon advised Ms. Canada’s time has expired. Ms. Canada requested additional time. The Board reached consensus to grant additional time.

Ms. Canada stated the City did have a say on the design when it agreed to the referendum and said to put the ball parks there; and the State Trustees may need to approve this because the park was dedicated and there is a reverter clause. She stated the County has the final say for the funds; and compared it to buying her daughter a dress. She stated if the Board makes the car parking 25 feet to the north on Plan 1 and accepts that, it will look like a park, with a natural barrier between the car and boat parking; and it will be safe. She stated they will not have to worry about who is going to be parking there and whether they will put waste out there. She stated if Vectorworks is not a good neighbor now with the salvage, surplus, and unknown barrels, the Board cannot expect it to be a good neighbor in the future and not use the parking. She requested the Board keep this a park and not make it an industrial park.

Jim Herron, Public Works Director for the City of Titusville, stated he has been asked to represent the City Council’s interest in the Marina Park development efforts with the recommendation for County Plan #2, which provides ball field parking on the north end of the park and boat parking on the south; and of specific interest to the City is the buffer afforded the marina by locating the ball field parking on the opposing end of the park and securing boat parking provisions, which would otherwise be jeopardized by recent manatee protection regulations. He stated with respect to the language proposed by County Attorney Scott Knox to the Interlocal Agreement to restrict inappropriate use of Marina Park, it is the City Attorney’s contention that an amendment is unnecessary as use of the property is regulated by the Trustees of the Internal Improvement Trust Fund. He stated the City Attorney, in his response to City Council, qualified that both the City and the County have acknowledged Marina Park as a City facility.

Commissioner Scarborough inquired when did the City take action to approve one of the two plans; with Mr. Herron responding there was a plan facilitated by the City concurrent with the original development of the plan, and as a result of that a hybrid plan was developed, which was Plan #2. Commissioner Scarborough stated what he heard last time from the City’s representative was that there was a feeling this was what the City Council wanted but he did not know; and inquired if the City has seen the two plans side by side; with Mr. Herron responding he does not know, but the official word is Plan #2. Mr. Nelson stated he has not participated in any presentation before the City Council so he is not sure if they received that information. Chairperson Colon stated that is interesting since Mr. Herron is here on behalf of the City Manager and the Council. Commissioner Scarborough stated he is hearing two different things; it is one thing for staff to comment and it is another for the City Council to put both plans side by side and discuss the merits. Mr. Nelson stated the only thing he has heard is the Mayor represented that, but he was representing only himself and not the full City Council. Commissioner Scarborough stated Ms. Canada is indicating it did not. He stated there have been meetings with different members of the City Council; the Board said it would try to accommodate parking to the extent it did not negatively impact the park activities; and that came up at the last discussion as a key element. He stated if they are looking at both plans, the last thing they would want to do is see the parking be usurped by employees so that when the Little Leaguers arrived there is no parking left. Mr. Nelson agreed with Commissioner Scarborough’s statement. Commissioner Pritchard stated he had the same impression; and inquired if the Board selects Plan 1 and sends it to the City, and the City wants Plan 2, what happens then. Commissioner Scarborough stated various things could occur; sometimes the House and Senate come out with different bills that go to a conference committee; there could be someone from the Council meet with someone from the County Commission; and there are ways to work through it. He stated he would like the Board to submit what it thinks is best for park purposes even though the City may have other objectives beyond that; the Board is fiduciary for the funds collected for a park in that particular area; and there are discussions about not deviating from plans with the sales tax discussion. He stated it would be important if anyone has questions about the parking being compromised by having the parking to the north that they send that forward to the City with those comments to get its formal response; and probably both plans equally serve the park purposes; but due to the possible non-park utilization of the parking on the north side, he would choose Plan 1.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to select Plan 1; and direct that the plan be forwarded to the Titusville City Council for its consideration. Motion carried and ordered unanimously.

The meeting recessed to go to Executive Session at 11:38 p.m. and reconvened at 1:03 p.m.

REPORT, RE: AMENDING POLICY BCC-53, MUNICIPAL SERVICE BENEFIT UNIT

John Asunmaa stated since MSBU projects are financed for ten years, he requested precluding another dredging for ten years.

Michael Zarkowsky stated he is opposed to having any restriction that might hurt the interests of the majority of the community; and the majority should rule. He stated if there is a restriction to be made, it should be made at the time by the majority and not just by one citizen or a small group of citizens. He stated he does not know if Mr. Asunmaa’s request is unreasonable; but it might affect the community in the future. He stated any time there is restrictive language written into a document, there is a tendency for it to be misinterpreted in the future; the memo says until the MSBU is paid off; and that may not be ten years if there is a tax lien or probate situation. He stated it could take longer going any amount over ten years; and that would be an undue restriction that would be not intended, but could be imposed. He stated in the general principle of democracy, he objects to the fact that they would be restricted; and it should be open to whatever is needed at the time it is needed, and be brought before the Board at that time.

Charles Krawczyk stated things like canals being sludged over are not a matter of a ten-year period of time; things may change; catastrophes may happen; and in less than 10 years the canal may be needing dredging again. He stated it is not right to tie their hands to a fixed ten-year period or some type of financing situation; and they should be free to bring this up again at the time when the projects are needed without any artificial restriction.

Roadways and Landscaping Finance Manager Greg Pelham stated in September Mr. Asunmaa made an appearance before the Board asking for consideration of an amendment to the policy prohibiting the Board from considering another MSBU project for ten years or until the previous project was paid in full; and staff has brought back some information and options for the Board to consider.

Chairperson Colon inquired which options the Board would like to consider.

Commissioner Pritchard stated initially he thought what is the difference; if it was locked in for ten years in the maintenance aspect, with pulling a permit and locating a site, it might not fill in and require dredging during the ten years; however, what flipped his opinion is that if something did happen, it would be up to the neighborhood to make that decision as to whether it would like to have it dredged in seven years. He stated it may never happen, but if it does, it is up to the neighborhood to make the decision at that time, and it is not up to the Board to preclude the neighborhood’s decision by saying nothing can happen until the original debt is paid.

Chairperson Colon inquired if Commissioner Pritchard is considering Option 3.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve Option 3, to not amend the policy and consider each request for an MSBU project on a case-by-case basis. Motion carried and ordered unanimously.

RESOLUTION, RE: ACKNOWLEDGING PREPARATION OF PRELIMINARY ASSESSMENT
ROLL FOR RIO LINDO MAINTENANCE DREDGING MSBU

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant permission to advertise a public hearing for November 18, 2003 to confirm the preliminary assessment roll for the Rio Lindo Maintenance dredging MSBU; and adopt Resolution acknowledging preparation of the preliminary assessment roll and setting the time and date for the public hearing. Motion carried and ordered unanimously. (See page for Resolution No. 03-287.)

AMENDMENTS TO EXISTING AGREEMENTS WITH TORTOISE VIEW HOMEOWNERS ASSOCIATION, COY A. CLARK, SUNTREE LAKES HOMEOWNERS ASSOCIATION, AND ORANGE WOODS HOMEOWNERS ASSOCIATION, RE: EXTENDING RIGHT-OF-WAY USE
AGREEMENTS

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to execute Amendments to Agreements with Coy A. Clark, and Tortoise View, Suntree Lakes, and Orange Woods Homeowners Associations for extension of right-of-way Use Agreements for a five-year term beginning on November 10, 2003. Motion carried and ordered unanimously. (See pages for Amendments to Agreements.)

PRELIMINARY PLAT APPROVAL, RE: THE AVENUE AT VIERA

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to grant preliminary plat approval for The Avenue at Viera (AKA The Promenade), subject to minor engineering changes as applicable and developer obtaining all necessary jurisdictional permits. Motion carried and ordered unanimously.

STAFF DIRECTION, RE: ALTERNATIVES TO CURRENT VESTED RIGHTS PROCESS

Motion by Commissioner Higgs, to approve Option 1, appointing a hearing officer to hear appeals and render final decisions for the vested rights process.

Commissioner Pritchard stated he likes Option 2 because it does not take the Board out of the loop; it provides for hearing officer; and the hearing officer would listen and provide conclusive findings of fact for the Board acceptance or modification per defined parameters. He stated he does not like giving up the opportunity for input on something as important as vested rights.

County Manager Tom Jenkins stated the only downside to Option 2 is the Board will be rehearing the case. County Attorney Scott Knox stated the Board would be hearing arguments on both sides, but would not take any evidence; and that is the difference.

Commissioner Scarborough stated the problem is the Board says that but when people come before it, it expands; and it has one case that seemed never to want to die. He stated in a court proceeding or quasi-judicial hearing, everyone knows the rules and has to abide by them; but the Board is in tune with taking everybody’s comments any way they want to give them on almost any subject they want; and it never tells people to sit down. He stated whether the Board wants it or not, it would end up rehearing the cases; the dynamics are such that it does a disservice to the process; and commented on the Saunders case that kept opening up again and again. He stated after the Saunders case, he is concerned about going with option 2 even though it sounds like the best preference.

Commissioner Pritchard stated he likes option 2 because it says, “Upon receipt, the proposed order would be scheduled for consideration by the County Commission, which would adopt the order as proposed or, after discussion among themselves without input from the public, make changes to the proposed order based upon filed written exceptions or Board interpretations of an Ordinance that differs from those proposed by the hearing officer.” He stated it provides for an in-house appeal should the hearing officer come up with a decision that might not be palatable; and it is just another way of insuring the Board can provide the best for the constituency.

Commissioner Carlson stated under option 1, the Board has the ability to appeal it if the final decision is not palatable or might be precedent setting; with Mr. Knox advising that is the case if the Board reserves the right to do that in the ordinance. Commissioner Carlson inquired is that currently the case; with Mr. Knox responding no. Mr. Knox advised the whole thing would require changes in the Ordinance so whatever way the Board chooses, it will have to adopt the ordinance to do it; and if the appeal is something the Board wants to preserve, it would have to put it in the ordinance. Commissioner Carlson inquired if Mr. Knox sees an issue with that if it was included; and commented on the Board hearing cases and the hearing officer hearing cases. She stated when the final decision comes to the Board, it gets all the information and documentation on the public input in an objective manner; and it can approve or deny; but it may be something that is precedent setting where the Board thinks the hearing officer made a mistake on the decision. She inquired if any other communities have done this sort of thing; with Mr. Knox responding there are different permutations of this in different areas; but the kind of example they are talking about right now is the precedent; and outlined an example where the Board of Adjustment would interpret the variance or special exception provision and the Board would not do that, but the Board would preserve the right to appeal the decision and have the right to go to court. He advised the problem with that is when it gets to court, if there is a reasonable construction of the ordinance that the Board of Adjustment adopted the Board’s complaint about, even though the Board may have interpreted it differently, the judges are not going to overturn it. Commissioner Carlson stated it would be a very special case; it would not be every time the hearing officer makes a judgment; and the Board would have to live with the decisions unless there was something that was over and above.

Commissioner Scarborough stated the Board will have the opportunity to choose the hearing officer; it would be able to see if there are some problems; and if there are problems with the ordinance or other things, the Board can come back and address it. He stated if someone comes before the Board and wants to be heard, the Board is going to waive the rules and listen to them, and then it will be back into it; and it would be better to proceed to get a hearing officer who would be totally impartial and willing to listen to both sides, and then monitor that to see if any cases are appearing where the Board needs to get into Ordinance revisions. He reiterated he is afraid of option 2.

Commissioner Carlson inquired what about the appeal process; with Commissioner Scarborough responding regardless, they always have the ability to appeal to the courts. Commissioner Carlson stated she means an appeal to the Board of the decision of the special master or hearing officer where there is precedent that the Board has upheld, but the ruling may completely uproot it. Commissioner Scarborough stated if they lost one, it would not be the end of the rule; the Board could readdress the Ordinance with staff and plug the hole; and the Board can waste a lot of time fighting these things; but there has got to be some degree of moving the system. He stated it consumes staff time; it is disruptive for the individual in the community; and if there are holes, staff can report back, and the Board can revise. He noted everything is not going to be perfect; but at least it will not bog down the Board.

Planning and Zoning Director Mel Scott stated the Agenda Report suggests to the Board, if selected, option 1 would emulate the special master process; issues can be quite contentious in a neighborhood; the hearing officer would present a final order; and it would be staff’s intention to provide ability for the Board to appeal any decision that the special master would render. He stated probably every fourth or fifth month the special master from the Code Enforcement cases renders a decision the Board may not fully embrace; and it can discuss it and go to court.

Commissioner Pritchard stated the Board should crawl before it walks; option 2 provides for the same hearing officer to listen, take evidence, and provide a conclusion; the difference is the conclusion is not binding until it comes to the Board; and the Board has the option of adopting, listening, or discussing. He stated the Board would not be listening to more public input; and he would prefer the idea of trying to move slowly on this; if it does not work because it becomes too contentious and the Board is back in an extended hearing process, it can make an adjustment at that point. He expressed concern about taking the Board completely out of the loop except in the appeal process; stated litigation is going to cost a considerable amount of money; he likes the idea of a hearing officer because it takes some of the subjectivity away and renders a decision based on relevant facts and other input; and when the hearing officer’s decision is passed on to the Board, it would carry quite a bit of weight, but the Board would still be part of the process.

Commissioner Scarborough stated before Mr. Saunders’ case he would have supported option 2, but after that case, he thinks it is impossible.

Commissioner Higgs stated all of the suggestions are imperfect; her experience in all of the vested rights cases would lead her to believe that the Board would grant almost unlimited amounts of time to people who have cases before it; and the best process is to proceed with option 1.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve changing the vested rights process in accordance with option 1, to appoint a hearing officer to hear appeals and render final decisions. Motion carried and ordered; Commissioner Pritchard voted nay.

ACQUISITION OF WICKHAM PARK OUTPARCEL, RE: MOSELY PROPERTY

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to execute Contract for Sale and Purchase with Sam and Mamie Mosely for the .15-acre outparcel within Wickham Park at $1,200; authorize staff to obtain an environmental audit and title insurance, and accept title exceptions; authorize the Chairperson to execute any Amendments as required; and authorize Parks staff to proceed with the land closing. Motion carried and ordered unanimously. (See page for Contract for Sale and Purchase.)

AWARD OF BID #B-4-03-50 AND EXECUTION OF CONTRACT, RE: CONSTRUCTION
OF NORTH BREVARD WATER TREATMENT PLANT AND ELEVATED TANK
IMPROVEMENTS

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to award Bid #B-4-03-50, Construction of the North Brevard Water Treatment Plant and Elevated Tank Improvements, to Met-Con, Inc; and authorize the Chairperson to execute the Contract for the project at a total price of $503,000. (See page for Contract.)

CITIZEN REQUEST - HAROLD P. KOENIG, RE: INCREASING SOCIETAL PROBLEMS
CAUSED BY SUBSTANCE ABUSE

Harold Koenig, representing H.E.A.R.T., requested the Board recognize Brevard families’ great problem, which is the worsening substance abuse and mental illness disaster; stated it is decimating the County’s most precious asset, its youth; and it is causing major society problems. He stated H.E.A.R.T. urges the Board to make this problem the Board’s highest priority for remedial actions and to support specific actions to quickly reduce demand for illegal substances. He stated from the seven public forums, they find the public very surprised to find that not only are lives of the children being lost and trashed, but that substance abuse and mental illness are the root cause of a series of devastating and accelerating societal problems, including overcrowding of the jail. He stated staff reports 91% of the inmates at Sharpes are substance abusers and/or mentally ill; they project a 50% increase in jail population in five years; and the Board cannot let this happen. He stated interrupting Drug Court is a mistake; a massive public health challenge is developing in Brevard County; there are increasing cases of hepatitis C; most girls involved with substance abuse are now found to have hepatitis C; and no government funds exist for treatment. He stated hepatitis C is four times more prevalent than HIV/AIDS; without treatment, thousands of Brevardians will need liver transplants; and epidemiologist Barry Inman will speak later on this issue. He stated an increasing number of children are being raised by grandparents; many are retired, physically impaired, and financially strapped; and they need help. He stated the children involved have done nothing wrong; Brevard’s fastest growing organization is grandparents raising grandchildren; and he and his wife are members since DCF gave them custody of their relapsed daughter’s six-month old daughter and two-year old son even though he is 77 years old. He stated there is an increasing number of mortgage foreclosures and resulting financial chaos for families; and Dan Overstreet, Brevard’s leading mortgage banker will speak later on the subject. He stated there are an increasing number of homeless people, many of whom are veterans, an overloaded judicial system coupled with disastrous mandatory minimum sentences impacting the quality of judicial decisions, and increasing hostility of families toward law enforcement, who are viewed as drug war soldiers against children. He stated respect for law enforcement must be restored so families can join and help save their children from evils of substance abuse. He requested the Board (1) pass a resolution endorsing and encouraging Representative Bob Allen’s legislative initiatives to designate the County as a demonstration pilot project, diverting all first-time nonviolent substance abuse/mentally ill offenders from jail to treatment; (2) assign staff to assist H.E.A.R.T. in defining a specific proposal for funding treatment from the net proceeds of the Brevard Drug Asset Forfeiture Fund; and (3) reconsider the decision to pump approximately $30 million into expanding the County Jail, and rather fund treatment from Drug Court so young lives can be rebuilt instead of continuing to throw them away.

Dan Overstreet stated he deals with foreclosures; and when they go through the houses, a surprising number have drug paraphernalia that is left behind as well as photographs and family memorabilia. He stated he gets calls from people wanting to get equity out of their home; there is no treatment; and when the person is released from jail after their sentence is up, it is a problem because the families have no way to help the child except to try to pull equity out of the homes. He stated the greatest causes of foreclosures are death, divorce, drugs, alcohol, or prescription drug dependence. He stated one of the underlying causes of divorces is also dependence; and it is more widespread than most people realize. He commented on hepatitis and people who have died from their addictions. He stated when people come in asking for help, all they can do is refer them to the local church for assistance; there is no formal program to help offenders; so when they are incarcerated, nothing is being done to diminish the recidivism rate of the first-time offenders. He stated they are not being given any skills or abilities to cope with their addictions; Mr. Koenig wants to give first-time offenders a chance to have the skills and abilities to cope with the cravings; and that is why he supports H.E.A.R.T. He stated he hates to walk into a house and see pictures and old jewelry left because lives have been ruined; and he supports Mr. Koenig’s initiatives.

William Kunzler advised of his background as a teacher at BCC and Webster University, as an elementary school principal, in the military, as a corrections officer and corrections counselor, as a guidance counselor, and as a drug and alcohol psychologist. He stated alcoholism and drug addiction is a disease; it is a serious problem; and everyone knows a lot of addicted people because it is not just drug and alcohol addictions, but also shopping, gambling, womanizing, etc. He advised of meeting Mr. Koenig and having Mr. Koenig make presentations to his classes; stated the name of the game is not prison for first-time offenders, but treatment; and it works. He stated the Board can keep increasing money for corrections and jails; but he does not see that as the answer because everyone lives in a society where more is better. He stated everybody knows more about pills; they turn on the television and know what is going to get them out of depression, anxiety, etc; and it is a pill-popping society. He stated older people go to the doctor and tell the doctor what medicines they want; that is how it works; and inquired why would young people not think about some way to turn on or get out of a bad situation they are in. He stated with the disease concept, there are a lot of situations out there; Mr. Koenig talks about support for a pilot program and new amendments; and looking at Arizona’s Proposition 20 and California’s Proposition 36, they work and are saving money and helping people. He stated sending people to jail and then back to jail does not work, even though the jails are trying; in his last three months at Ft. Belvoir in Virginia, he was asked to do alcohol and drug programming for inmates at the County jail in Manassas; while jails have some of these programs, they are very limited; and in that environment, it is difficult to have people recover.

Barry Inman stated he is an epidemiologist with the Brevard County Health Department; and at one of his meetings at Cocoa Beach, Mr. Koenig asked him to speak about the epidemic and pandemic with hepatitis C and how it is affecting Brevard County. He stated estimates from the Center for Disease Control are that there are four to five million Americans who are either infected with hepatitis C or have antibodies to hepatitis C, which translates to one in 50 Americans who will either be infected or have antibodies; in the State of Florida there are over 240,000, which is four times the HIV rate; and in Brevard County, they estimate there are 8,000 to 12,000 who are either infected or have antibodies with hepatitis C. He stated a major risk factor for this disease is IV-drug use; and this could be anyone who has ever experimented with IV-drugs including some who did a one or two-time thing 20 or 30 years ago. He stated it is not uncommon to see someone who is 40 or 50 years of age find out they have hepatitis C; it is a stealth disease; it does not present itself with signs and symptoms; and most people find out they have the disease by donating blood, by life insurance, or when their doctor notices some elevated liver enzymes and does a hepatitis panel. He stated other risk factors may be blood transfusions before 1992 and accidental needle sticks and injuries, which is a problem for health care workers. He stated hemophiliacs are a problem; perinatally there is a risk of 1% to 6% of a baby being infected; in some cases the disease will appear through kidney dialysis and transplantation of body parts such as kidneys; and another thing that affects the jails is tattoos and body piercings. He stated if tattoos and body piercings are obtained from commercial vendors who are maintaining good infection control and following OSHA protocol, there are not too many problems; but there are problems with tattoos and piercings that are obtained in gangs and old ones through the jails and prisons. He stated approximately 15% to 30% who are infected develop antibodies and will be okay; but those who become infected are infected for life; and they can infect other people, mostly via blood. He stated it is not well transmitted sexually, but has been transmitted sexually, although in a monogamous relationship, there is only a risk of transmission of 1 to 2%. He stated he gets phone calls from people saying they are indigent and just found out they have hepatitis; they have no resources or health insurance and are not veterans; and there is very little he can do for them. He stated the Health Department does screening and tests for hepatitis C; they will offer hepatitis A vaccine because it is important for the individuals not to come down with another type of hepatitis; and they counsel them about not transmitting it and staying away from alcohol and drugs. He stated on average people with hepatitis C who are alcoholics go into cirrhosis and liver cancer 50% faster than others; there are some treatments available through the drug companies; and if they do not start to treat people, they are not going to be able to provide everyone with the liver transplant they need. He advised treatment is a lot less expensive than liver transplants; there is an interferon treatment and pill called ribavirin that can cure up to 50%; as time goes on the cure rate will probably get better for hepatitis so long as the person has not gotten into cirrhoses and liver cancer; but the expense or the drugs is at least $700 to $1,200 a month. He stated drug companies will provide the medication free, but no one provides the physician or lab work; and usually there have to be liver biopsies, which are very expensive. He stated it is a growing problem; and there had been a downturn in the number of IV-drug users, but it is moving back up. He stated he has seen some acute cases of hepatitis C that tells him more people are going back to IV-drugs; and these types of activities put the users and others at great risk.

Jim Kelly, member of H.E.A.R.T., stated his daughter Megan is a success story; about seven years ago she got into crack cocaine and was arrested; she was fortunate enough to go to Drug Court and was put in rehab in Orlando; and one year later, she graduated. He stated it has been four and a half years since she was a user; and now she is clean, has a job, is a productive citizen, and lives in Orlando. He stated while she was in rehab, after three months she got a job; she lived at the rehab center, took a bus, and worked at a menial job; and she took her check to the administrator of the facility to pay for her room and board. He stated the economics and saving of a young person is a very successful story; and he does not understand why the government, the Drug Czar, State prosecuting attorney, State Legislature, and Sheriff do not support this.

Jodi McKinney stated she is not the voice of the party line; she has been working in Brevard County since 1996 when the County denied a permit for a hemp festival to take place; and they participated in active civil disobedience, at which time she watched 26 police officers harass and harangue people who were actively trying to change the laws. She stated she has dedicated her life to changing the laws and bringing sanity to a failed drug policy; and she came today to offer her condolences because the drug war is a failure, people are dying, and the streets are being destroyed. She stated there is very little the County Commission can do; the Board heard about the far-reaching effects of substance abuse on the community; it heard about the rise in HIV; and advised the one way to curtail HIV and hepatitis C would be to exchange needles for addicts, but that would be breaking State law. She stated yesterday she was at the League of Women Voters talking about restorative justice, which has to do with the idea that the victim of a crime needs restoration, fulfillment, and closure, but the offenders need to be given the skills they need to not re-offend so they can become productive members of society. She stated there is nothing the Board can do; if it allocates one dollar to treatment, the State will take away one dollar from treatment; if it allocates a million dollars to give schools a chance to get programs to educate the young people, the State will take away a million dollars; and they will be in the same position tomorrow as they are today. She stated the mentality of the Office of Drug Control is that they must interdict drugs; they interdict them in Colombia; they interdict them coming into the State; and they interdict them at the point of sales. She stated the 2001 survey showed that for every dollar spent on treatment $23 was saved over the cost of trying to interdict production of coca. She commented on cocaine production, interdiction, inability to stop cocaine production, and scaring children away from drugs by showing them farmers in Colombia mixing coca paste with cement and gasoline as a first step. She stated for every dollar spent on treatment, $7 is saved over the cost of incarceration. She stated the nation is not powerless; it needs to focus on treatment and demand as opposed to drug courts; while she appreciates the idea that first-time offenders need more help than repeat offenders, she also knows that the person who is truly addicted goes through a moment almost every day when he or she would like to stop taking drugs; and if they cannot touch them at that moment and have a service available for them at that moment, they will be back into the cycle of addiction and nothing can be done. She submitted information to the Board, but not the Clerk; and stated the only way to ever end the drug war is to cease fire. She stated drugs will never give up; it is an endless war; and as long as the country takes a drug war mentality to fighting a public health issue, it is bound to lose.

Ann Coburn stated she has never met Mr. Koenig, but has read about H.E.A.R.T.; and when she saw he was on the Agenda today, she decided to come and add her comments. She stated she and her husband are Guardians Ad Litem; every day they see the effect of drugs on families; when a father is convicted of drug possession or use and is put into prison, his children and spouse suffer; and when the father comes out after serving his term, the cycle begins again. She stated it is like a cycle of domestic violence; until it is stopped, it is going to go on; some mothers at 15 years old have been on drugs since there were 11; for some there does not seem to be any hope no matter how much treatment they got; and if there is anything that can be done to treat the people instead of incarcerating them, the County will be the better for it, and it will not go on to the children and the next generation.

Chairperson Colon stated she would like to get more feedback about the pilot program of Representative Allen, who is the Chairperson of the Delegation this year. Commissioners Carlson and Scarborough indicated it would be a good idea.

Commissioner Pritchard stated they received a memorandum from Freda Schildroth; and inquired what is it she is asking the Board to do. He stated it says no action taken today that will dilute any part of the efforts; and inquired what action could possibly dilute the efforts Ms. Schildroth is talking about. Commissioner Carlson stated it would be the efforts of the Mental Health and Community Solutions group that the Board appointed, and the recommendations it came up with. Commissioner Pritchard stated Mr. Koenig requested three actions, pass a resolution, assign staff, and reconsider decisions about expanding the jails; one of the concerns the Board had was it would cost less to put someone in a treatment facility rather than incarcerating; building a pod at the jail was multimillions of dollars; and if a similar facility that was built that would be a treatment facility, it would be much less, not only in construction costs but also in operating costs. He stated he assumed that was something that was on the burner and the Board was considering looking into alternative programs other than incarceration. Assistant County Manager Don Lusk stated he has not seen what Ms. Schildroth sent, but he thinks she is trying to say the Commission on Mental Health and Community Solutions worked an inordinate amount of time trying to put together recommendations related to what needed to happen at the jails from a forensics standpoint; the information Commissioner Pritchard requested at one of the budget hearings concerning the cost of doing things at the jail versus doing things in the community is on the burner; and that information will be forthcoming to the Board.

Commissioner Carlson inquired did the Board accept the recommendations of the Mental Health and Community Solutions Commission; with Mr. Lusk responding yes. Commissioner Carlson stated staff is moving along with getting the cost of the mental health facilities compared to the cost of the jail, knowing there are x number of dollars in the referendum for a jail; she is not sure the Board has defined how it would use those dollars because the number is an estimate. Mr. Lusk stated the Mental Health and Community Solutions Commission supports some of the recommendations included in the referendum language concerning improvements at the jail specifically for mental health and substance abuse individuals.

Commissioner Scarborough stated he had a conversation with someone about the jail and various pragmatic issues; and then they got into the cost to the community with recidivism. He stated there are people who could have been treated but were instead incarcerated; there is a vicious cycle; and staff did some research on how things were done in other areas. He stated it would be critical to not just build a facility but to build a concept that is cutting edge; there are some great people with great ideas on how to make things work intelligently; and inquired if someone wants to get off drugs, why are they locked up and lose the opportunity. He inquired if there is someone who is not medicated and is mentally ill, why is he filling a cell when there are judges who are having to release people on signature bonds. He stated the County needs a smart system; it is critical that the groups become an integral part of defining what the jail should be because it is more than a jail; it is a means to make the world work; it is an imperfect world; but it is everyone’s obligation to make it work as best they can.

Chairperson Colon stated the Board had a lot of testimony coming forward from the people from the Mental Health Commission; and inquired if the Board would like to get a report back from staff to see if it could do the same thing regarding the jail.

Commissioner Scarborough stated the public will be voting on the referendum on November 4; and if it passes, he would like to have a special workshop bringing in people like Mr. Koenig and his group and Ms. Schildroth and hers. He stated they need to make what is there work; and they have opportunities to not just build cells, but to build an intelligent system.

Chairperson Colon stated regardless of what happens on November 4, she hopes the Board continues to do that; she is married to someone who is in law enforcement and deals with these issues; and the revolving door is totally horrible to see. She stated someone who gets arrested for drug possession is tested by the Department of Corrections; if they are not in treatment, they are offenders and go to jail; and it is just a vicious cycle. She stated that person no longer works; the mother cannot support the family; this is something that is happening to teachers, nurses, bus drivers, and other regular folks; and there is a misconception of people in the community who do not realize it could be the person next door. She stated she would like to get some feedback on the pilot program; and after November 4, the Board can discuss the issue. She stated they put together a Mental Health Commission, which did a wonderful job of bringing information back to the Board; and the Board took action on some of those suggestions.

Commissioner Higgs stated there were two proposals, to get a report on Representative Allen’s proposal and a report from staff in terms of funding treatment from the proceeds of the Brevard Drug Forfeiture Fund.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to authorize the Chairperson to get additional information regarding the pilot program that Representative Bob Allen has introduced; and direct staff to provide a report in terms of funding treatment from the proceeds of the Drug Forfeiture Fund. Motion carried and ordered unanimously.

ACKNOWLEDGE ANNEXATION BY CITY OF ROCKLEDGE, RE: PROPERTY NORTH OF
FISKE BOULEVARD AND SOUTH OF MARTIN ROAD

Commissioner Carlson stated she brought up the issue of the overcrowded schools; the cities have not adopted the same policy that the County has concerning not allowing density increases when there is an overcrowded school; Kennedy Middle School, which will serve the subject property, is overcapacity; and the Board has an opportunity to comment on this.

*Commissioner Higgs’ absence was noted at this time.

Planning and Zoning Director Mel Scott stated this annexation creates an enclave so procedurally the Board could appeal this to the Department of Community Affairs on the basis of it not conforming to the law for annexing property. Commissioner Carlson stated the Board is very concerned about creating enclaves; there is a Joint Planning Agreement with the City of Rockledge; and inquired how it addresses annexations. Mr. Scott responded regardless of the Joint Planning Agreement, the Florida Statutes protect against annexations that create
enclaves; they have spoken to the planner; he is aware of this; and the City’s plan was to propose a methodology, after this annexation, where the City would involuntarily annex all enclaves in the City of Rockledge; but even recognizing the City’s intent, this annexation has an issue with the property on Martin Road. Commissioner Carlson inquired if that is the Knights of Columbus property; with Mr. Scott responding yes.

Motion by Commissioner Carlson, to authorize staff to appeal the annexation by the City of Rockledge to the Department of Community Affairs due to creation of an enclave which does not comply with the laws for annexing property and the creation of school overcrowding.

Commissioner Pritchard inquired why that property was not included. Mr. Scott stated the property is already receiving the services it needs so there was no motivation to go into the City.

Commissioner Carlson stated as much input as the Board has gotten from various cities, particularly in her District, on the issues of enclaves and trying to bring some of the internal enclaves into the cities, creating one does not make any sense at all.

Commissioner Pritchard seconded the motion. Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

Chairperson Colon inquired when will the Board see this again; with Mr. Scott responding 14 to 30 days.

ACKNOWLEDGE ORDINANCE #2003-23 FROM CITY OF WEST MELBOURNE, RE:
ANNEXATION OF PROPERTY SOUTH SIDE OF EBER BOULEVARD AND EAST OF
HOLLYWOOD BOULEVARD, WEST SIDE OF MINTON ROAD AND SOUTH OF I-95, AND
WEST OF MINTON ROAD AND SOUTH OF FLANAGAN AVENUE

Planning and Zoning Director Mel Scott stated this was an item Commissioner Higgs was interested in; staff has confirmed this is just at transmittal stage; and this item can be brought back to the Board in a couple of weeks for consideration without losing the opportunity for comment.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to direct staff to return Ordinance #2003-23 from the City of West Melbourne, annexing property on the south side of Eber Boulevard and east of Hollywood Boulevard, west side of Minton Road and south of I-95, and west of Minton Road and South of Flanagan Avenue to the Board on November 18, 2003. Motion carried and ordered unanimously.

LEGISLATIVE INTENT, RE: LEGAL AND ILLEGAL FIREWORKS SALES AND USE

Commissioner Pritchard stated this came about because of the numerous complaints about the use of fireworks, in particular on the beaches; and they wanted to address the issue and tighten the regulations because Florida Statute 791 has the enabling legislation to make adjustments in how the sale of fireworks is being conducted. He advised fireworks are described as anything that explodes and leaves the ground; they are not talking about sparklers; the beaches over the Fourth of July were a war zone; and there were hundreds of complaints. He stated fortunately, there were only two accidents; one was fairly serious and the other was minor; and they were fortunate that they did not have what happened in Bonita Springs when a tractor-trailer blew up and people died. He stated they formed a committee; and they have come up with a list of recommendations, which will be addressed today. He stated the requested action is for the Board to direct staff to prepare legislative intent and draft ordinances outlining proposed Zoning Code amendments allowing legal fireworks sales only in the IU-1 classification and prohibiting the illegal sale and use of fireworks; and amend Section 72-115, to include beaches. He stated they are going to have signs on the beaches reading “Use of Fireworks Prohibited by State Law”; and they will forward the revised legislative request to the Legislative Delegation requesting amendments to Chapter 791, Florida Statutes.

Robert Carney stated he is in support of a ban on the sale or possession of illegal fireworks in Brevard County.

Tony Sasso, Cocoa Beach City Commissioner, stated he is speaking only as a concerned citizen; and thanked Commissioner Pritchard for bringing this issue forward. He stated most people can come up with reasons for or against most issues; this one is no different; and the most common reasons are individual rights or patriotism; but as his old football coach would say that is just horse puckey. He stated he might want to run naked down A1A waving an American flag, but cannot because there are laws against it. He stated he is sure the Board has done its homework on this issue and has determined that there are two compelling arguments in favor of eliminating fireworks, which are a travesty of the law and an unwelcome intrusion into quality of life. He stated nearly everybody buying fireworks is breaking the law; they stand in line with their children and lie to buy fireworks; and one has to do both in order to buy fireworks. He stated the most common description of the beaches on any summer weekend evening is a war zone; and this is not much of an exaggeration with the batteries of fireworks, often as big as the professional type, reeking havoc on the beaches and the environment. He stated the adverse results are real; they frighten beach goers; there is environmental damage; Keep Brevard Beautiful collects tons of residual fireworks trash; and there are sea turtle disturbances. He stated in Cocoa Beach, there have been several large dune fires; and he saw photos of one where the flames were 20 feet high just 30 feet in front of a condominium. He stated one does not have to be on the beach to enjoy the barrage to the senses; the noxious smoke often pours over A1A and into homes; and the noise goes on until the early hours of the morning. He stated there are limited resources to deal with it; but Cocoa Beach unanimously passed an ordinance in favor of a fireworks ban. He stated they are not a bunch of unpatriotic grinches; the community raised over $30,000 to have a professional fireworks show on July 4, which they thought was a more appropriate way to handle fireworks on the beach; and urged the Board to support the beach residents by voting for the ordinance to ban fireworks.

Chairperson Colon advised Mr. Sasso of the blood drive for Cameron Barkley to take place on October 29 at the Cocoa Beach Jr./Sr. High School; and requested he spread the word; with Mr. Sasso responding he would be happy to do so.

Ron Sisson stated he brought with him fireworks that he picked up from his yard, roof, and gutter last year; this year there were some changes in the neighborhood so he did not have any debris in the yard; however, the noise was none less than it was in 2002. He stated his collection came from July 5, 2002; and displayed debris that landed in his driveway six feet from where he was standing. He stated he doubts it would have hurt him, but it was upsetting; and this is the kind of debris that has been falling around the neighborhood. He stated he lives in a quiet neighborhood in Indialantic; and it is only in the past few years that there has been such a dramatic increase in the activity and size of the fireworks. He stated the activity started a week before the Fourth of July and went on for a month into the first week of August; July 4 was the worst, keeping him up until 1:00 a.m.; and he called the police every half hour, but they have a difficult time controlling it. He stated he met with the Chief of Police of Indialantic who agreed it was out of control and escalating every year, but admitted they were having a difficult time controlling it. He advised of letters written to the offices of the Governor, State Fire Marshal, and Insurance Commissioner, and their responses concerning authority over use of illegal fireworks, provisions of Chapter 791 of the Florida Statues, exemptions, and educating the public. He stated instead of educating, government should be stopping and preventing the use of fireworks; and he wrote back to Governor Bush advising it is like telling people the dangers of exceeding the speed limit but not enforcing the speed laws, to which the Governor responded to contact local authorities to take action to control fireworks. He stated the State Fire Marshal has adopted a National Fire Protection Association Standard (NFPA) as the Code for public display of fireworks; and the law specifically exempts displays on private residential property; and advised Subsection 791.05 of the Florida Statutes specifically permits the Sheriff or any other police officer to seize fireworks held in violation of the law. He stated he was told by the Indialantic Chief of Police that they have to catch the individual in the act before they can do anything; people are shooting fireworks in full view in the middle of the street and in their driveways; there is debris all over the streets and driveways; and it is flagrantly out in the open; but nobody does anything. He stated individuals have received warnings; but they just explode something, go in the house and hide, and then come out later.

George McLeod thanked Commissioner Pritchard for his efforts and Mr. Sasso for the sign on A1A that says individuals will be cited and have their fireworks taken away if caught with them; and stated right after that sign was put up, it improved his life. He stated on July 4, he had guests over to watch the Cocoa Beach/Ron Jons fireworks show at the pier; but they could not watch it because the smoke in the sky was blinding from all the other fireworks. He stated they could not stay outside because of the smoke; and he does not have a health problem, but he can imagine what it was like for the senior citizens in his community who have trouble breathing. He stated that happens daily from dawn until the next day; and he is sure the Commissioners got letters telling them that. He stated he sent a letter citing some of the occurrences he witnessed; and submitted copies to the Board and the Clerk. He stated he owns some beachfront property; there are hundreds of pounds of debris on the beach on any weekend night; and while the Fourth of July is certainly the worst, it happens every night. He stated once the sign was installed, things got better because if someone spends a couple of hundred dollars on fireworks and sees a sign saying someone is going to take it way, it gets his attention. Mr. McLeod stated his letter asked the Board to get the laws enforced; any additional ammunition the Board can provide is fine; but the people are already in violation of a bunch of laws, a couple of which require immediate attention. He stated Mr. Sisson said the police officers had to witness the activity; people using fireworks on the beach do not run back into their houses; they run to their bags to get the next load of armament to launch; and described dangerous incidents he observed. He stated it would not take any time to go out and make a charge; one police officer could do it; and it would not take very many charges to stop it. He stated the people are in violation of the litter law and the Noise Ordinance; and requested the Board get the laws enforced.

James Durocher thanked Commissioner Pritchard for pursuing this issue; and stated he has done a good job on following up on their letters and phone calls. He stated in the last two years, two retail fireworks establishments have opened their doors in their small community of Avon-by-the-Sea; their area has been turned into a war zone; and it has gotten better since placement of the sign as a lot of people think they are part of Cocoa Beach. He stated hopefully Cocoa Beach is going to put the sign back up on A1A now that the carnival at the Catholic Church is over; this is a litter and safety issue; and they need relief. He stated the new law sounds good; but there are already laws that could be enforced to stop the activity now. He stated if more laws are needed, they should get done; he had a lot of petitions that he passed on the Commissioner Pritchard; and submitted additional petitions to the Board and the Clerk. He commented on the provisions of Chapter 791, Florida Statutes; and stated as long as fireworks are sold illegally, people are going to use them; he is treasurer for his homeowners group; and at their meeting, it was almost unanimous to get something done. He stated he supports passing the ordinance, and hopes the Board acts quickly and forces the enforcement of it.

Commissioner Pritchard stated the members of the Fireworks Committee in addition to himself were Mayor Rocky Randels, County Fire Marshal Mike Taggart, County Fire Chief Bill Farmer, Cape Canaveral City Manager Bennett Boucher, Cocoa Beach City Manager Charles Billias, Cocoa Beach Assistant City Manager A. J. Hudson, J. R. Hanson of the County Bomb Squad, Assistant State Attorney Michelle Jackson, Assistant County Attorney Cliff Repperger, Brad Hodge and Lionel Cote of the Satellite Beach Police Department, Rockledge Police Chief John Shockey, President of the Space Coast Fire Chiefs’ Association Rick Allen, Mark Laderwarg of the Melbourne Police Department, County Planning and Zoning Director Mel Scott, Code Enforcement Manager Bobby Bowen, and Sharon Luba. He read aloud a letter from Walt Chamberlain, Fire Chief of the City of Melbourne, supporting the initiative to ban the public sale of illegal fireworks in the County as the current Statute make enforcement difficult.

Fire Chief Bill Farmer stated in the past fireworks have increased brush fires; the Board heard comments about dune fires; and those are all real life events. He stated there have been some accidents as a result of fireworks; how to control that is a difficult issue; and Michelle Jackson, who was part of the Committee and worked the issue more thoroughly than he has, advised of the focus on legality of use versus the illegal action of selling. He stated one issue they are focusing on trying is trying to bring safety to the storage of the fireworks; initially they were trying to define fireworks storage as high hazard, which would require a sprinkler system; but unfortunately where the NFPA did not speak to it specifically before, leaving it up to the authority having jurisdiction, they have now redone the NFPA and given very specific backgrounds and parameters on storage and automatic sprinkler systems. He stated Chief Taggart has just gotten a copy of the NFPA and they are reviewing it; and it seems to limit stringently what the County is going to be able to do as far as automatic sprinkler systems go. He advised the Space Coast Fire Chiefs’ Association is in full support of anything that will help limit the use of illegal fireworks, as is Fire Rescue.

Chief Taggart stated he is in charge of the inspection and enforcement of the Code within the stores themselves; the actual storage and handling of the product in the stores meet all current Codes; and as long as those are met, there is nothing else he can do. He advised he does not have authority at single-family residences or for individuals; he can only control the businesses; so until something changes as far as the sale of the product in the stores, all of the stores meet the current NFPA Codes.

Commissioner Carlson stated the fireworks store on US 192 obviously had to get an occupational license; and inquired if they have special permits for those who sell out of storefronts. Planning and Zoning Director Mel Scott stated the Zoning Code permits the sale of fireworks in commercial zoning classifications, so when the business comes forward to get an occupational license, it goes through a one-stop permitting process, meets the locational criteria, and has a fire inspection as part of that review. He advised the need for sprinklers is based on the square footage; and in the instance of the US 192 store, it did not require sprinklers. Commissioner Carlson inquired if the State law says fireworks are illegal, how can the County go through that process and provide occupational licenses. Chief Farmer advised the Statute does not say that fireworks are illegal. Commissioner Carlson stated there are certain exemptions; and inquired if the folks are coming forward with exemptions to get their licenses. Assistant County Attorney Cliff Repperger advised under the Statute, fireworks may be sold, but there are legal exemptions and exceptions for the sale of fireworks; and presumably, the stores are operating within this exemptions and exceptions. He stated the way the Statute is written, there is no strict enforcement of the exceptions and exemptions; and that is what the Board is trying to do. Commissioner Carlson inquired if there is no difference between the storefront that sells fireworks or the tent that sells fireworks, and the County has done nothing wrong in allowing them to put out a storefront for fireworks because they have to deal with the same exemption scenarios as the folks who have tents. Mr. Scott advised the tents occur on BU-1 lots so the use is permitted per the Zoning Code; the twist the proposal brings to the Board for consideration is the liability placed on the purchaser; the purchaser is representing that he or she is a qualified purchaser of the fireworks, which is very defined; and unless there is a proliferation of farmers on the Fourth of July, they are confident that 90% of the purchasers are not qualified even though they sign the sheet saying they are. He stated they are trying to shift that burden from the purchaser to the seller.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to direct staff to prepare legislative intent and draft ordinances, amending the Zoning Code to allow legal fireworks sales only in the IU-1 classification and prohibiting the illegal sale and use of fireworks, and amending Section 78-115, Brevard County Code to include “beaches”; direct the revised legislative request be forwarded to the Legislative Delegation requesting amending of Chapter 791, Florida Statutes; and authorize placing of signs reading “Use of Fireworks Prohibited by State Law” at each beach access crossover. Motion carried and ordered unanimously.

Chairperson Colon stated Cocoa Beach passed an Ordinance; now the County is passing one; and inquired what other cities do not have this kind of ordinance. She suggested, once those cities are identified, sending a letter. Commissioner Pritchard stated there are now seven hardened stores, five of which are in the County; and with the exception of Cocoa Beach, the municipalities do not have an ordinance. Commissioner Scarborough suggested the Chairperson write a letter advising the County is consider an ordinance and seeing if there is any problem, and recommending if there are any questions, they contact Commissioner Pritchard, who is heading this up.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to authorize the Chairperson to send letters to the municipalities advising of the Board’s consideration of a Countywide ordinance prohibiting illegal sale and use of fireworks. Motion carried and ordered unanimously.

Commissioner Pritchard thanked the public for the input he received, and the members of the Committee for the time they spent going over this issue; and stated there is still going to be more time involved because staff is going to come back with legislative intent and draft ordinances. He advised Brevard County will be a better place to live as a result.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ORDINANCE REGULATING
OUTDOOR MUSIC ACCESSORY TO OUTDOOR RESTAURANT SEATING

Joy Dishneau stated she was brought up with music in her family as her mom gave piano and organ lessons; and some of the places the Board is talking about taking music out of are places where young people and families can go to enjoy music. She stated it does not feel right; and it is going overboard.

Chairperson Colon stated there is a misconception in the community about what is going on; and the Board should enlighten people before getting into this discussion. She requested Mr. Scott provide clarification; and stated the Board is not trying to ban anything, but is just trying to put an ordinance in place so people can play music.

Planning and Zoning Director Mel Scott advised currently the Zoning Code is constructed in such a manner that it requires all activities that are permitted to occur in commercial zoning classifications, which is where restaurants are located, must occur within substantially enclosed buildings; a literal interpretation of that provision has the effect of banning all music from outside of commercial establishments, whether it be speakers playing taped music or live performance; and that is the current state of the Code. He stated as part of the indoor smoking ban, the Board recognized the need to address outdoor restaurant seating; and an Ordinance was adopted that codifies the ability of restaurants to provide outdoor seating. He stated the issue today is to what extent will the Board allow outdoor music to accompany or be accessory to the outdoor seating. He stated the first misconception is that the Board is considering certain permutations of a ban, when a literal interpretation of the current Zoning Code has that effect; and what the Board is considering is under what circumstances or criteria will it allow outdoor music to occur. He stated another misconception is that the live performances are being shut down; there is a special events permit process in place that is available to establishments for events where outdoor music occurs; and the unique characteristic of the permit is that it exempts the use or event from the Noise Ordinance, so it is only for special events such as a church carnival or the Holiday Inn’s Jamaican-Me-Crazy event that are recognized as being at such a noise level that they would need special event permit to exempt them from the Noise Ordinance provisions. He stated what the Board is considering is a way in which outdoor music can be provided accessory to the outdoor restaurant seating; those are very confined parameters the Board is dealing with; and part of that discussion has not been to tinker with the special events permit.

Ms. Dishneau stated she is from the west coast; her dream was to come to Florida where she could go to the beach and listen to music; there is an atmosphere about Florida; and it seems the Board is taking that atmosphere away. She stated some of the places that would be affected are just small businesses starting up where people can go to listen to music; she does not drink; she just goes to the places to listen to music; and now they are going to be charged for a permit.

Chairperson Colon inquired if Ms. Dishneau understands it is the opposite; the Board is trying to put something in place so people can enjoy the things she is talking about; and Ms. Dishneau should support the proposed ordinance so those events happen. She stated there is a misconception; Channel 9 was saying the Board was trying to ban music, which was incorrect; and the proposed ordinance is trying to promote the kinds of things that Ms. Dishneau was talking about. Mr. Scott stated another misconception comes from the fact that this will only affect the unincorporated area of the County; there was some early concern that this would affect Cocoa Village or downtown Melbourne; but it does not.

Commissioner Scarborough stated at this time there is no one present to speak in favor; the Board is ambivalent; and inquired unless someone is championing the ordinance, why is the Board discussing it. Chairperson Colon stated the rest of the speakers are here to champion the ordinance.

Steve Bussey stated he plays in a band called Big Red and the Bus; he is a guitarist, singer, songwriter, and listener; and the perception is that the Board is trying to shut down live music. He stated live music has been going on as long as he has lived here, which is 22 years; and it has been going on outside. He stated it is one of the things he and many others have enjoyed; and the perception is telling him that the ordinance is not written properly. He stated item 2 is, “all music shall remain accessory to the primary function of a restaurant, which is serving meals to the public and shall not be the subject of an admission charge for patrons of the restaurant”; and that is going to be difficult for enforcement officers to measure whether it is accessory or not. He stated any musician will tell you the people are coming to see him because he is the star; but the fact is the people are actually coming to have a drink, something to eat, to meet others, and enjoy themselves, so as much as the musicians would like to think they are the stars, it is really accessory most of the time. He inquired how can the County say it is not accessory and needs a special event permit; and stated it is a subjective type of thing.

Commissioner Pritchard inquired if the music is played inside or outside; with Mr. Bussey responding his music is played inside and outside, but specifically he was talking about outside by the water. Commissioner Pritchard stated currently he cannot do that in the County; and what the Board is trying to do is to allow it to happen. Mr. Bussey stated they are all in favor of that; but the fact is it is currently being done. Commissioner Pritchard stated if it is being done, it is being done illegally. Mr. Bussey stated that needs to be fixed. Commissioner Pritchard stated that is what the Board is trying to do; if someone goes to a music indoor club, they expect to have loud music, dancing, and a band; several places have special events for which they get a permit to be outside; but if there is going to be outdoor dining where there is outdoor seating, it would be accessory to the fact that someone is having a meal, and there would be background music to create a nicer ambience. Mr. Bussey suggested the Board create something where it is legal to do that; and if the band is too loud, the Noise Ordinance can be enforced; or if it is upsetting someone’s meal, they do not have to go back to that place. Commissioner Pritchard stated that is what they are trying to avoid; the idea is not to pull up to Carrabbas and listen to a band; the idea would be to go to Carrabbas, and if there is seating outside, one could listen to someone playing an acoustic guitar; and if they wanted to have a band, they could get a special events permit. He stated the Board is trying to create a venue where people can come and enjoy a meal, have an after-dinner drink, and listen to someone on a keyboard or guitar at a reduced volume, as strictly background entertainment. He stated no one wants to dine and have to yell at their dining partner to be heard. Mr. Bussey inquired if that should not be up to the people to decide if they want to go to that restaurant or not. Commissioner Pritchard stated they could move the band inside and wail, but if it is going to be outside, there is a responsibility to the community; as of right now, it cannot be outdoors; and what they are trying to do is to allow it to happen outdoors. Mr. Bussey stated he is going to be playing outdoors a little later today; and he is in favor of being allowed to play outside. He stated the ordinance has to be fair and allow people who have been doing this for years and years to continue to do it.

Commissioner Scarborough stated there is a fundamental miscommunication; and suggested Mr. Scott meet with the people, and the item be brought back. He stated the Board needs to listen to what the people have to say; but when there are miscommunications, the Board is not going to be able to have an ordinance to advertise after this discussion. He stated the Board needs to ask the people to meet with staff; and they may not agree with everything; but at least they will be factually informed.

Commissioner Pritchard stated he would rather have the community fully aware of what is being proposed; what is being done is not legal; and reiterated the Board is trying to create a venue where there can be music. He stated after the people discuss it with Mr. Scott, the item can be brought back in two weeks to move forward.

Dennis Thompson stated he is a resident of Merritt Island and a businessperson by day, but at night he likes to play the drums, so he is associated with the musician community. He stated he has been following this issue; it seems to have its own momentum and agenda; and he appeals to the Board’s reasonableness to let the music continue. He stated there are two issues; one issue is government and regulations; and the other is the issue of music and reasonableness. He stated they need music in Brevard County in the incorporated and unincorporated areas; and to codify all the things based on different reactions sometimes loses the sense of things. He stated he hopes the Board keeps the sense of things rather than having music police.

Dave Grooms stated he applauds any effort to make outdoor music legal in the County; and he wants it to be fair. He stated he is a musician; he does not play loud; and he has played all over the State at folk festivals. He stated he tried to organize family-oriented music events outdoors in the County as well as around the State; he does a lot of things with children; and he is not a headbanger, does not drink, and is easy to work with. He noted his mother and grandmother were born in Merritt Island; he loves the County; and he would like to see everybody be reasonable because there has been live music in the County for a long time and the Noise Ordinance and others have taken care of most of it. He stated it does get out of hand sometimes; and commented on the Mardi Gras at Cocoa Village. He stated he would like to see everybody be able to do what they want to do; and recommended working together and getting rid of the misconceptions. He stated he knows the Board is trying to come up with something to solve the problems; he knows they want to work with the people; and that is all he wants to do is work together to solve the problems. He stated people come to Florida on vacation; they want to sit outside, have a drink with an umbrella in it, and listen to someone play some Buffett tunes; and that is all he is asking for.

Ron Chabot, representing Carroll Distributing, stated he is totally confused; they take the stand that they do not like to see any businesses restricted in any way; the smoking ban has hurt a lot of businesses; and if they cannot play music outside, it is going to hurt them more. He stated now that things have been explained, he understands where the Board is coming from; but he read music must stop at 10:00 p.m.; and that is a little early. He stated many young people in the County are going to Orlando clubs because Brevard County shuts down relatively early, so that brings a lot of revenue to Orange County. He stated Carroll Distributing supports the local businesses; some of the businesses that are going to be hurt are “mom and pop” operations that have already been hurt by the smoking ban; and if they do not get something that will work with the music, some are going to go out of business. He stated he has been a County resident for 46 years; he was not aware that one could not play music outside in the County; and offered to assist Mr. Scott as he is familiar with every bar and restaurant in the County.

Chairperson Colon stated this is going to come back to the Board; and when it comes back, Commissioner Pritchard will have met with all the people. Commissioner Pritchard stated he would like to do that; as the gentleman said, the idea of kicking back and listening to some Buffett tunes is enjoyable; there are a lot of restaurants he used to frequent that had that format; one could sit outside, watch the water, and listen to someone strum a guitar; and it was pleasant and low key. He stated bands are inside unless there is a special permit; it is a different thing; and he is talking about the ambience of having an acoustic guitar.

Commissioner Scarborough stated this does not need a motion; and it will come back on the Agenda when Mr. Scott puts it on.

Commissioner Carlson stated in her briefing, Mr. Scott suggested staff needed more direction; he will be meeting with the people and going over things; and advised number 2 and number 5 in the first paragraph tend to contradict each other, which should be corrected so there is not that contradiction. Commissioners Pritchard and Scarborough indicated that would be acceptable.

DISCUSSION, RE: RE: DEVELOPMENT OF A POLICY REGARDING COMPROMISING
PUBLIC DEFENDER LIENS

Assistant County Attorney Barbara Amman stated a while ago some citizens came forward and asked the Board to compromise the liens the courts had imposed against them for Public Defender usage; several wanted the Board to compromise both the amount of the lien and the interest that was subsequently charged on those liens when they were not paid; and staff has been working for a couple of months to figure out a way to address that. She stated the Board has the authority to compromise those; and the County Attorney’s office made some suggestions on what cases the Board might want to do it. She stated with respect to the amount of the lien, they are suggesting the Board not compromise that; the court is in a better position to know whether they gave the citizen proper notice and the opportunity to object to the amount of the lien; and under those circumstances the court ought to be the place to have those amounts compromised. She stated regarding the interest, they have made a different suggestion; the Board may choose not to compromise the interest, or it may choose to allow the statutorily permitted interest to be charged and go forward; and the dilemma with that option is that no citizens prior to March 2001 were notified that there was going to be interest. She advised the law still permits the interest to be charged; it is in the Statute; but there was some discussion about whether it was fair to charge a citizen interest without some sort of notice beyond the statutory authority to charge it. She advised since May 2001 the judgments in the County have included a statement that interest will be charged on all unpaid liens; and suggested that prior to the citizens having notice in the judgment, the Board permit the interest to be waived and after the citizens receive notice in the judgments issue by the County, the Board go forward and charge that interest.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve Option 1 on the amount of the lien, as follows: If a citizen/defendant contacts the Board and expresses objection to payment of a lien because of the amount of the lien, lack of notice of the amount of the lien, or the failure to be notified of the right to a hearing; and the citizen claims not to be in willful default, or that the lien poses a manifest hardship either in amount or in the nature of the payment plan, the Board policy would be to advise the citizen/defendant to seek relief from the court as the court is authorized and best equipped to address the issues. ACS would be advised to continue, as they have been, to halt collection when contacted by a citizen/defendant disputing these charges and provide the citizen/defendant the court dispute directions, which advise the citizen/defendant how to seek the court’s assistance regarding the amount of the lien. In all cases, even though they have the authority to do so, as a matter of policy, the Board would decline to compromise the actual amount of the lien imposed by the court, leaving that adjustment, if any, to the court as authorized in Section 938.29(3), Florida Statutes; and Option 3 on the interest on the lien, as follows: As a matter of policy, because of the lack of notice to the citizen of interest charges in the judgments providing for the liens, the Board waives all interest on all Public Defender liens imposed without notice of interest charges (generally, those prior to March 1, 2001), and instructs the Clerk’s Office to send ACS for collection only the actual amount of the liens on those liens where citizen/defendant had no actual notice of the interest charges and instructs ACS to collect the interest on those liens where written notice of interest charges was given in the final judgment.

Commissioner Carlson inquired if the motion included authorization for the County Attorney’s office to carry out the adopted options; with Commissioner Scarborough responding yes.

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

CITIZEN REQUEST - D. D. WHITE, RE: CONTRACT FOR DEED RECORDING FEE

D. D. White submitted paperwork to the Board and the Clerk; and read aloud from a letter he wrote to the County Commission advising for the last ten to twelve years he paid taxes, but now that he is asking for protection, he is being denied. He stated he is filing a complaint that protection and service were denied to him by Brevard County government inconsistent with Chapter 125.01(s), Florida Statutes, which outlines the powers and duties of county government including ability to make investigation of County affairs, inquire into accounts, records, and transactions of any County Department or officer for these purposes, require reports from any County officer or employee, and the production of official records. He stated Florida Statute 125.01(w) says, “Powers and Duties. Perform any other acts not inconsistent with law, which acts are in the common interest of people in the County, and exercise all powers and privileges not specifically prohibited by law.” He requested the Board enter an order that his Contract for Deed be executed and filed, due to the matters involved in Sections 16 and 8. He stated Section 16 says, “nothing contained herein to the contrary notwithstanding, shall be construed as a transfer of an interest in the property described herein by the seller and the property shall be considered sold when and only when the final installment of the monthly payments shall have been paid and the seller delivers a warranty deed to the buyer as provided in paragraph 5.” He stated paragraph 5 goes to paragraph 8, and the last part of 8 is, “upon default by the buyer for a period of ten days in any of the payments herein provided for prior to the delivery of the deed, or upon default of the buyer in any of the other terms and conditions of this agreement, the seller is hereby empowered and authorized to maintain summary proceedings for the removal of the buyer from the premises for the nonpayment of such sums.” He stated the officer wants to charge him $600 to file this and call it a deed; but it is not a deed; and it says it is not. He stated it specifically states it is not a deed; one person signs it and then the other; and on the last page, the Board can see where both persons signed this particular document. He stated this is not a deed but the officer wants to make it a deed and charge him $600; he told him he could not pay; but he needs to have this document filed and pay what it should be, which is $19 or $4 a page.

County Attorney Scott Knox stated Mr. White is talking about the documentary stamps; the problem Mr. White is experiencing is that in Florida law a contract for Deed is treated like a mortgage, but it is also treated like a conveyance of equitable interested in the property; and even though this provision does not purport to transfer an interest in the property, the case law in Florida does treat this document as an equitable interest in the property, which is why he was charged as if the contract for deed was a deed.

Mr. White advised the Clerk has filed this particular type of document for $12.

Mr. Knox stated typically if one has this type of document, the Clerk’s office is going to require the documentary stamps to be paid based on the purchase price of the property, which is why it would be $600. He stated the question is whether the provision in paragraph 16 would take this particular document out from the normal rule; only the Department of Revenue would be empowered to make that call; and suggested Mr. White contact DOR to see if he can get a ruling that the document does not qualify as a typical deed. He advised the Board does not have any jurisdiction over that. Chairperson Colon requested he repeat that; with Mr. Knox advising the Board does not have jurisdiction over that issue.

Mr. White inquired about jurisdiction; with Mr. Knox responding the Board cannot do anything for Mr. White, but the Department of Revenue might be able to do something. Mr. White stated the law says that when something is in jeopardy, it is the county government’s problems to ascertain some kind of remedy to it. Mr. Knox stated he is sure the Board would love to have jurisdiction to take away some of the powers of the State, but it does not. Mr. White stated the Board is running the County; he is not running it; and the County is collecting taxes. He stated Statute 125 says the Board is the one that is supposed to look into this matter; and he would like the Board to do an investigation.

Commissioner Pritchard stated Mr. Knox recommended Mr. White contact the Department of Revenue; however, a letter was sent to Ms. Steburg of the Clerk’s office by Ms. Eldred, a tax law specialist with the Department of Revenue that says, “In conclusion the instrument presented for recordation, which does transfer an equitable interest in real property, was properly subjected to both the documentary stamp transfer tax based on the total property price and the documentary stamp tax on written obligations to pay money based on the amount financed at the rate of 7% represented by the contract for deed constituting a purchase money mortgage”; so Mr. White has a response, and having him contact DOR will not do any good. Mr. Knox stated that is correct; he did not pick that up; but that is the same position he gave at the outset of this discussion. Chairperson Colon inquired if Mr. White has the documents Commissioner Pritchard just read; with Mr. White responding no. Chairperson Colon provided Mr. White with a copy of the letter.

Mr. White stated he would still ask that the County follow Florida Statute 125.01(s) in doing an investigation since this is a legal matter.

Chairperson Colon inquired does Mr. Knox have to research this further or does he have an opinion now. Mr. Knox responded the Department of Revenue is a State agency, which is empowered to administer the tax laws of the State; the documentary stamp tax law is a State law, which requires the Clerk to impose a tax on any transaction involving the conveyance of property; the Department of Revenue has taken the position that the equitable interest has been transferred by virtue of this document and therefore the tax has to be paid. He advised the only way to attack that decision is either to get DOR to change its mind by talking to them or going to court and getting the court to say DOR is wrong; but the Board has no jurisdiction over the matter at all.

Mr. White stated if the Board does not have any jurisdiction, maybe Chapter 125.01, F.S. needs to be changed; and he will write to ask that it be changed because the Brevard County Commission says it does not have any respect, not does it have any duty to abide by it. Mr. Knox noted Chapter 125.01, F.S., applies to county government and county affairs, and not to State laws.

CITIZEN REQUEST - LOU ROSSI, CHAIRMAN OF BREVARD VETERANS COUNCIL, RE:
NEWFOUND HARBOR RESORT PUD

Lou Rossi, Chairman of the Brevard Veterans Council, stated he has been working on this issue for almost four years; he made four trips to the St. Johns River Water Management District; and thanked Parks and Recreation Director Charles Nelson and his staff for their swift work on the fence and electrical system for the helicopters so they could get the aircraft fixed. He stated he is present to request four actions; and the first is to amend the Newfound Harbor Resort PUD preliminary development plan to completely remove the PUD entrance from the Veterans Memorial Park and Center. He stated the second is to amend the Newfound Harbor Resort PUD preliminary development plan to reflect a density that is consistent with the Comprehensive Plan, taking into account all wetlands and hammocks that have been identified by the St. Johns River Water Management District in its letter dated July 14, 2003; and upon completion of the first action, they request the Board direct staff to seek new appraisals for the properties and seek appropriate funding to acquire the properties. He stated if the properties are purchased, they request the Board assign custodianship of the properties to the Brevard Veterans Council and conceptually approve the use of a small portion of the properties for the Veterans Memorial Center’s Library and Museum expansions, including development of a memorial garden; all these actions are the direct result of opposition to the removal of the Resort’s access through the Veterans Memorial Center; and also a factor was Commissioner Carlson’s concern for the environmental features on the site, prompting her to ask the State for funds to purchase the properties and determine their value within independent appraisals. He stated since there is a possibility the properties would be purchased by the County, the Veterans Council decided it was important to determine what the property could be used for; a major library and museum expansion are planned for the Memorial Center; rather than trying to squeeze the expansions into a limited space at the Center, the Council envisions using three to five acres of the property where the fill is stored; and as part of this project, the Council decided it would be appropriate to include integration of Veterans Memorial Garden with the new library and museum facilities. He stated it was during this research of the property, that they discovered the presence of a significant amount of wetlands and hardwood hammock features on the site; and as a result, they have concluded that the original approved PUD was approved without all the information available to the Board. He stated the Board was not advised that the site had an estimated 31 acres of wetland; the PUD was approved for over 400 more dwelling units than what is permitted by the Comprehensive Plan; and it is not known why the applicant omitted the information or if staff failed to discover it because identification of all wetlands during the staff review process is a required action. He stated given the amount of environmental permitting activity on the site prior to rezoning, the applicant had a great deal of information about the wetlands on the site; but that was never shared with staff or the Board; and therefore when the number of permissible units was calculated, the wetlands were treated as uplands, causing the PUD to be approved for 704 units, which is 400 more than the Comprehensive Plan permits. He stated the history of the St. Johns River Water Management District environmental permitting activities for the site is important because it verifies the presence of wetlands; in the 1983 application for Harborwoods Brevard, the St. Johns River Water Management District files show that within the 36 acres of the application, 20 acres of wetland existed; and the application requested to fill nine acres of this wetland and to return the creation of ten acres of salt water marsh with connection to Newfound Harbor. He stated as early as 1986, it was known that there were at least ten acres of protected wetland; the property owner, however, did violate the permit by constructing only 7.8 acres of salt water marsh, and was eventually forced to mitigate in 1993 by adding 2.8 acres of salt marsh along the site’s south Cone Road boundary; and the ten acres were placed in a conservation easement by the management of the St. Johns River Water Management District. He stated this year another application for a St. Johns River Water Management District permit was made for the site by Pulte Home Corporation for over 52 acres.

Chairperson Colon advised the speaker will need an extension of time; with the Board reaching consensus to allow additional time.

Mr. Rossi stated 52 acres is four acres more than approved by the 48-acre PUD; and they are not sure why this discrepancy exists. He stated 31 acres were identified by Pulte Homes engineers as jurisdictional wetlands; the application requests the filling of the 12-acre hardwood hammock that straddles the common property line between parcels 501 and 503; and a picture of the hammock is included in the Agenda package. He stated although the hammock was present on the site at the time of the first environmental permit application for parcel 503, it was not identified as a wetland; thus, the St. Johns River Water Management District files confirm that 31 acres of wetland within the boundary of the Newfound Harbor Resort PUD were not accounted for when the PUD was approved. He stated since the overall density of the original PUD was 14+ units per acre, that equals 430 more units; and wetlands are supposed to be calculated at one unit per five acres. He stated although the Board is probably familiar with the zoning history of the PUD, he would like to emphasize several points of concern to the Veterans Council. He stated in the Council’s opinion, the Newfound Harbor Resort should be found by the Board to be inconsistent with the Comprehensive Plan’s wetland policy that stipulates the density for the wetlands should be one unit per five acres; as early as 1986, it was known by the property owner that at least ten acres of jurisdictional wetlands were present on the site; but the property owner withheld that information from the County when the PUD classification was applied for in 1996. He stated the Natural Resources Management Department asked that the applicant identify all wetlands on the site since its map showed that wetland characteristics were present; when the Planning and Zoning Board and the County Commission held hearings on the application, the resulting decisions were based on no wetlands being on the site; this is the only possible conclusion because of the approval of 704 units on a 48.7-acre property, which equals 14.54 units per acre density; and all of the wetlands had to be calculated using the Comprehensive Plan upland maximum density of 15 units per acre to reach the 704 total unit figure. He stated another area of great concern is the fact that no established procedure exists to require staff to conduct a thorough examination of an approved PUD when an application is submitted to extend the PUD zoning; and particularly disturbing is the fact that no coordination with other permitting agencies is required. He stated if coordination had taken place, the knowledge that wetlands had been found would have caused staff to find the PUD inconsistent with the Comprehensive Plan, requiring another hearing by the Board; but from the viewpoint of staff, apparently the extension review is meant to consist only of the review of the existing file or whether there have been any additions to the Comprehensive Plan that might cause the PUD to become inconsistent.

Chairperson Colon inquired how much longer is Mr. Rossi’s presentation; with Mr. Rossi responding he has been working on this for four years; and requested an additional two minutes.

Mr. Rossi stated the Planning and Zoning Director stated the P&Z files were consulted and staff found the PUD was consistent with the Comprehensive Plan; this routine was followed on four different occasions that led to four year-long extensions of the PUD zoning; and recommended all PUD extensions be submitted to the Board through the P&Z Board and all permitting agencies be contacted to determine what, if any, information may be applicable to the extension request. He stated in January 2003, the revision of the original PUD was approved, but referenced by the P&Z Director as minor revisions; although it can reduce the number from 704 to 516, it drastically changed the characteristics of the development from the preliminary plans, from a senior life care community to that of a standard condominium development; and this is a concern because the traffic characteristics are distinctly different. He stated this is a concern because access to the PUD is on the books as being through the Center; the Council is concerned that the traffic impact would be even greater than before; and labeling such a change as a minor revision seems inappropriate. He stated like extensions, revisions to the PUD should be taken through the full hearing process when changes of land uses are requested. Mr. Rossi stated the PUD has been approved and extended for nearly seven years based on bad information; the correct information, if available at the time of the original zoning or any time when extension or review were being requested, would have caused the PUD to have been found inconsistent with the Comprehensive Plan; and this site should not have been approved for more than 321 units maximum. He stated all the PUD plans were approved by the County continuing to show a preliminary access of development through the Veterans Memorial Park; the Brevard Veterans Council has been assured all along that no access to the Center would be permitted since the land where the Center is located is not a right-of-way, but a public land that is used for a public road, public park, or public facilities; and the County is not obligated to grant this access. He requested the Board direct staff to review the revised entrance plan; stated the revised plan moves the PUD access street off the Center to a new location a quarter of a mile west opposite the Dillard’s entrance to Merritt Square Mall; and it also provides for an additional two acres to the Center.

Chairperson Colon inquired if moving the entrance is the main issue.

Maurice Meisner stated he would like to address the Lease Agreement the Veterans Council has on the property; they need clarification; shortly after the Lease was signed in 1990, the developers sought to have an entrance through the park; and the legal opinion came back that if the County decided it was a public road, they would need to remove the gate immediately. He stated that was 13 years ago; the gate has not been removed; and the intent all along was that this would be a public road. He stated the Lease, which was signed in November 1990 was good for five years with automatic renewals for five years more, so it is good until 2020; the lease states the parcel is County-owned property currently known as Merritt Square Park adjacent to Newfound Harbor on Merritt Island including an additional parcel of State-owned land dedicated by the State for use in conjunction with the development of a Veterans Memorial Park; and the State gave this land to the County for the sole purpose of being used for a memorial park. He stated he is not an attorney, but if he was representing himself with this document, he would have a slam-dunk case. Mr. Meisner stated the lessee has control of and responsibility for the lessor-owned equipment etc.; Commissioner Carlson did the swearing in ceremony of the Council’s officers and knows the oath they take; and all the Commissioners should be aware that they are given a responsibility and will fight for that responsibility. He read an excerpt from the Lease, “Any permanent monument, plaque, or similar object approved for installation on the building or the park grounds will, upon being placed upon the building or park grounds, become the property of the lessor”; stated as of November 9, 2003 when they had dedication ceremonies for the first helicopter on the grounds, the County became owners of a piece of monument worth in excess of $30,000; and when the second helicopter comes in at the first of the year, the total investment will be approximately $50,000. He stated that comes from private donations of members and people who believe in what the Veterans’ Council is doing. He read, “The lessee shall use lease property as a repository for military artifacts and memorabilia, as an active center for veterans organizations, and as a public social facility, community recreation center, and museum. The park and the building shall be open to the public and the lessee shall make no unlawful or offensive use of the lease property, nor will the lessee use the property or allow the use of the lease property for any purpose other than is stated in this paragraph. Failure of the lessee to comply with this provision shall be considered material default under the lease.” He stated the Board can see why they are so concerned about the lease and that its provisions be upheld; the officers and members of the lessee group assure they will carry out their duties and responsibilities in the effective operation of the lease facilities to include all contractual obligations and covenants as provided in the Lease Agreement; and the Lease is explicit as to what their charge is as far as the property is concerned. He stated in May 2001, the Board voted to try to purchase the property being discussed; and one of the comments in the newspaper article was by Jim Swann who said buying the property would also give the County the opportunity to overhaul existing stormwater treatment facilities adjacent to the site that used heavy chemicals to remove pollutants, and the County could also restore wetlands on the property, which in turn would benefit the Sykes Creek system. He advised Mr. Swann went on to say it was the last great piece of potential public space and would make a nice park. He stated Mr. Swann knows the property and the area; the Board has respect for him; he obviously knows this is a property that has been abused ever since first development started as the developer has filled in wetlands and done all types of things that were in violation of the regulations; and Mr. Swann was asking for it to be restored to its original state.

Melvin Mueller stated he is a retired Air Force officer; he served in that position for 26 years; and after retiring and returning to Merritt Island, he served and added to the community first as a homeowner and taxpayer and since 1991, as a volunteer museum curator for the Veterans Memorial Center. He commented on the pleasure he receives working with the people he meets and the memorabilia that is displayed, and the donations of money and prized possessions to the museum. He stated the collection belongs to all the citizens of Brevard County; and the building and land are owned by the County and leased to the veterans for $1 a year. He stated it is a community asset; there are a large number of visitors from all over the country and many foreign nations; and they have left their favorable comments in documentation, which is on file. He stated school children visit the museum; that is the age group they are trying to target to teach about the futility and waste of wars; and children are the future of society and on whose shoulders all the burdens of society will soon rest. Mr. Mueller stated the veterans have been fundamental in planning, organizing, and securing the land and funding for the Center, the facility, and the park grounds; and had it not been for the veterans, that area would undoubtedly house another condominium or two, and the entrance road to the Newfound Harbor PUD issue would be a moot point. He stated he wants to correct Mr. Meisner’s presentation; initially they negotiated for a five-year lease on the property with a renewal clause; at the end of the lease they negotiated another five-year lease, which was permitted; but halfway through that lease, they renegotiated and rewrote the lease for a 25-year lease, which runs through the year 2024. He stated nowhere in any of the leases was it stated or implied that the land and entrance road should be utilized as a private driveway for some land developer for his private gated condominium project; and to allow this to materialize would destroy or permanently alter what they have worked hard for. He stated currently in the same entranceway, they are in the final stages of erecting a Vietnam era helicopter atop a 15-foot pedestal; it is one of two; and advised those helicopters will remain the property of the United States government. He stated they will not be the County’s property should they fail to take care of them; the helicopters would go back to the federal government if they fail to continue in their stewardship of the complex; the aircraft will serve as a memorial to the veterans of Vietnam and all wars; the project will eventually cost approximately $50,000; and they raised the money through donations and rentals of the Center and the auditorium. He stated the facility and park are for the community and all County residents; the park and building belong to the County government; and urged the Board to insure that all of their hard work will not be destroyed and the entrance road will not be usurped by a land developer.

Julius Farago stated he got interested in this because he is a member of the Korean War Chapter, and is involved in the Veterans Center; and he heard of the problems with the property being next to the Veterans Center. He stated he has been here 12 years; the County was beautiful; he was able to come down A1A and see the Atlantic Ocean; but today there are wall-to-wall condominiums and hotels. He stated he was able to watch pelicans fly by the beach, but they do not see them any more; he lives in Cape Canaveral; he used to see dozens of birds on a sand bar when he looked out his window, but today he only sees two or three birds. He stated he sees all the developers encroaching in this area; and inquired what is the end of this. He stated every time developers find a piece of green area, they want to build a condominium; he wrote letters to the Board and to Florida TODAY concerning this; and he was surprised to find out one of the Commissioners was actually in support of the development because he says it gives a good tax base. He stated he is from Detroit, Michigan; he is here because it is a tranquil area with beautiful beaches; but today he sees another Daytona Beach or another Detroit being built here. He requested the Board be united and try to control the developers taking over and building wall-to-wall parking areas, hotels, and condominiums; they do not need them; this is a nice area; and they would like to keep it that way. He stated he is not just talking for himself, but for all the members of his Chapter, other veterans, and the residents of his condominium who agree with him. He stated this is not an isolated thing; he is surprised no organization is working on this problem; and requested the Board protect the green areas and control the developers. He stated the Board does not have to bow down to the developers because the County needs more tax base; there are other ways of solving the problems. He stated in terms of building more condominiums, he saw in the newspaper that more population will take up more water from the aquifer; and inquired how much more can be built before the County has to build a water desalinization plant, which would cost millions and for which taxes would have to be raised. He commented on road congestion; and stated there should be a stop to this because they do not want a concrete jungle here.

Commissioner Pritchard advised he is a veteran; and the land the Veterans Center occupies was donated by the former owners of the property that is currently owned by Pulte. Mr. Rossi advised that is incorrect, it was donated by the people who built the high-rise along the river. Discussion ensued on the owner of the donated property. Commissioner Pritchard stated Mr. Rossi was talking about the developer of the Pulte property, which was purchased and owned by a private developer at the time having access along the Center’s driveway; with Mr. Rossi responding yes. Commissioner Pritchard stated he read some legal opinions on that and he does have that access; but there is a stormwater plan to move the access; and he has distributed drawings of the change. He stated the purpose is to create the access to the development away from the Veterans Center; it is in the negotiation stage because the Merritt Square Mall, Stormwater Utilities, and Pulte are all partners in this; and they are at the point of showing the benefit of access through there. Mr. Rossi inquired if “through there” means across from the Dillard’s entrance; with Commissioner Pritchard responding yes, because he does not want the access by the Veterans Center; and he presented it would be in their best interest to look at access opposite the Dillard’s entrance. He stated they are also trying to get the two-acre parcel included that he proposed to Mr. Rossi adjacent to the Veterans Center driveway on the upland area; and what he does not understand is what Mr. Rossi is proposing the County purchase; with Mr. Rossi responding 50-something acres. Commissioner Pritchard inquired if they are proposing the County buy 50-something acres from the private developer. Discussion resumed on who is the current owner of the property. Commissioner Pritchard stated Pulte is the one that the County is negotiating with regarding the access. Commissioner Carlson noted that does not mean Pulte owns it. Commissioner Pritchard stated that is his understanding; one gentleman mentioned that one Commissioner is in favor of the development; he is that Commissioner; and he is very much in favor of it because it is not only an enhanced tax base but the County cannot afford to purchase this land and take it off the tax roll. He stated they are looking at enhancing the tax base, providing the Veterans Center with an enlarged area, and providing an access that is going to take way from the driveway issue. He stated the Veterans Council talks about not building anything; but right now they are talking about an expansion taking place at the Veterans Center; and he realizes that is not a condominium, but it is still going to be a building. Mr. Rossi noted it is going to be a public building; with Commissioner Pritchard advising it is still going to be a building with traffic coming back and forth, and it is not going to do a thing for the tax base because it is County property. Mr. Rossi stated it enhances the quality of life because it is a museum and library; with Commissioner Pritchard responding that is a subjective issue, and it depends on whether people would use the Veterans Center. Commissioner Pritchard stated he has been there a couple of times; it is a nice facility; but whether it would move someone to come to the County depends of what their interests are. He stated he just wanted to bring a few things to everyone’s attention because this is still an ongoing negotiation; and what the Veterans Council is asking for is beyond the scope of what the Board is capable of doing.

Mr. Rossi stated there are a few other things involved; they just put in two helicopter bases; they had engineering on it; and it cost some money to do that. He stated they had to go down 20 feet with reinforced concrete to get something solid to put a six-thousand pound helicopter on; and expressed concern that the County is going to the develop go over on a floodplain and put houses with a two-foot water table on the property and solid muck all the way down 20 feet. He inquired what kind of structure is someone going to get. Commissioner Pritchard stated he is sure whoever is going to build will be doing something to make sure it is engineered properly; they are not going to build something on a floating slab; and whatever it is will be proper. He stated Mr. Rossi mentioned something from Jim Swann saying it would be a great spot for a park; but Mr. Swann wants to develop his own property; and inquired why he does not make that a park. Mr. Rossi noted Mr. Swann’s statement was from approximately three years ago. Commissioner Pritchard stated things have changed from three years ago; and he understands that Pulte has purchased the property and Wasdin and company are out of the deal.

Chairperson Colon stated she needs to get some kind of clarification; other Commissioners have questions; and inquired if the negotiations have anything to do with what the Board is talking about regarding moving the entrance completely off the Veterans Memorial Center grounds and placing it approximately a thousand feet west of the Center’s entrance and giving the Center an additional two acres adjacent to its current entrance. Regional Stormwater Utility Director Ron Jones advised that is part of the discussions they had in attempting to move forward with a cooperative project with the Mall and the County; and those would be able to be realized. Chairperson Colon stated this is something the Veterans Council supports. County Manager Tom Jenkins stated the only qualifier is that the land acquisition and addition to the Center itself are sales tax projects; that is where the funding would come from; Mr. Jones can pay for a portion through stormwater funds and is talking to private owners about participation; but there is also the consideration of the acreage and the expansion of the building on the sales tax referendum. Chairperson Colon inquired if the referendum does not go through, is this something that Stormwater Utilities is not willing to consider; with Mr. Jenkins responding they can use it for their portion, but he does not know that stormwater funds can be used for the Veterans Center site. Chairperson Colon stated the Veterans Center is a totally different subject; she is just talking about the stormwater. Mr. Jones stated speaking with Mr. Nelson, they have identified that, should the sales tax referendum not be approved, then some type of long-term loan could be provided with a payback for that portion that would go to the Veterans Center. Parks and Recreation Director Charles Nelson stated the discussion was similar to what the Board has done with the commercial paper, having to take a smaller amount of money out of the budget, and identifying it within the existing budget; and it would be a tougher process, but that would be the only other option available. Chairperson Colon stated she does not want the Board to put all of its eggs in one basket.

Commissioner Carlson inquired if any staff member knows absolutely if Pulte owns this property or not. Commissioner Pritchard advised he has not pursued that because it was his understanding Pulte had made the purchase. Commissioner Carlson stated there seems to be a question; with Commissioner Pritchard responding Tom Wasdin told him it had been sold and he was out of the picture, which is why he was not aware of what had been discussed about moving the access route. Commissioner Carlson stated some of the controversial issues that have been brought out from Mr. Rossi’s research concern abuses to the wetlands, the existence of certain wetlands, and the progression of increased density over time; Mr. Scott said he looks at what is in the file at the time and bases his decisions on that; and inquired how many times has the County extended the PUD and under what circumstance did staff okay the extension the last time. Mr. Scott stated the Code is very specific in when an administrative extension to the preliminary development plan can be granted and when it requires new Board review; so he looks to the Zoning Code very specifically; and if a proposed modification or extension to a preliminary development plan comes in, staff looks to see that there is not a proposed increase in intensity or density and that the perimeter buffers or open space allocated in the approval is not decreased. He stated the criteria is very straightforward and basic; the proposed modification to the preliminary development plan met the criteria; over time there have been decreases in density; it is something that staff does as a matter of course; and this is the third one for this PUD. Commissioner Carlson inquired if the existence or non-existence of wetlands on a site would trigger an issue; with Mr. Scott responding it would not. Mr. Scott stated historically the approval that occurred in 1997 is a reflection of the way the Board used to conduct PUD considerations; the presence of wetlands on this particular PUD will be accounted for and may drive the number of permittable dwelling units down even further if, when they come in for site plan approval, they propose to destroy the wetlands; but at the preliminary development stage, they are simply addressing allocated density per the zoning approval. He stated he can appreciate some confusion or concern that might emanate from that distinction; but there is that distinction between a proposed density, which represents the maximum possible that is part of a preliminary development plan and what actually might be able to occur depending on how much or if wetlands are destroyed per the site plan review process. Commissioner Carlson inquired how many acres of wetlands exist on the property currently; with Mr. Scott responding there is an estimate of 31 acres of wetland; and in 1997, that was being called to the attention of staff; but based on the process that is followed with projects, such information would not be looked at very exactingly until the site plan is submitted.

Mr. Nelson clarified prior to the sales tax projects being identified, staff was trying to brainstorm what sources of funding could be available; at that time they were talking about dividing the tract, and how much would end up being parks; and in looking at potential funding sources, that is where the commercial paper issue came up. He stated they do not have money for the expansion of the Center; they are looking at the potential for acquisition of that piece for the park purposes, but they have nowhere close to enough money to do the actual expansion; and he wanted to be sure that was understood. Chairperson Colon stated that was understood.

Mr. Jenkins stated he also wants to make it perfectly clear that it takes a million dollars a year to support what Mr. Nelson has now; if Mr. Nelson thinks he can find $200,000 or the debt service to borrow $200,000, that is terrific; but right now Mr. Nelson’s budget is going up a million dollars a year; he has to balance the budget; and when he is told not to raise taxes, that is a difficult thing to do.

Chairperson Colon stated it is good for the Board to know the different options that are out there and be able to entertain them; it is up to staff to bring all that forward and be honest with the Board; and it is up to the Board to decide whether those are the kinds of decisions it wants to make or not.

Commissioner Carlson stated the Veterans Council made comments regarding the appraisals back when the County tried to purchase the property; Tuttle Armfield and Wagner appraised the PUD properties as a whole at $5.9 million; then there was a discrepancy in that Robert Houha determined the value of the properties to be $3 million; that contracts with the Property Appraiser’s current valuation of $1,103,000; and inquired were the appraisals done on behalf of the County and did they consider the presence of the wetlands. Mr. Nelson responded the issue that drove the difference between the $3 million and $5.9 million was the question of access, in particular the access through the Veterans Center; they did not have enough detailed information to have factored the environmental elements in; they did a raw land sales; and to find out if they would price those out the same today, he would have to give the information to them and see. He stated he does not know if they knew about some of the environmental elements and to what extent; and that would have to be determined by the appraiser for the follow-up. Commissioner Carlson stated it can be assumed that if they go through the St. Johns River Water Management District, they will be going through a two-to-one mitigation for all the wetlands, which is a high price to pay to develop; and that could be a distraction to trying do develop at the high density the developer is interested in. Mr. Nelson stated they would have to be provided some more detailed information to try and achieve that appraisal.

Chairperson Colon inquired when Mr. Jones would have feedback on the retention pond and the discussions that have been going forward; with Mr. Jones responding they are currently in the process of scheduling meetings with the other potential partners to try to come to closure; and if successful and the numbers seem to work, then they would be going into the final negotiation process, so he would say 30 to 45 days. Chairperson Colon inquired if it is correct that the options and suggestions have not even been addressed with the people and they are just in the process of setting up the meetings. Mr. Jones responded they had some preliminary meetings; they just completed an analysis done by Bussen Mayer Engineering to provide additional information to evaluate different alternatives and mechanisms whereby they might form those partnerships; that analysis has been delivered to all of the different parties who met previously; and they are setting up a meeting for next week. Mr. Jenkins stated that is encouraging; there is a real possibility it can occur through some configuration; and they are far enough along to know there are at least three parties interested in participating, although there may be four. He stated the Board could be comfortable that the opportunity is there to acquire the frontage, move the entrance, and expand the facility and so forth.

Mr. Mueller stated a group of approximately fifteen veterans met with the representative from Pulte Homes about three weeks ago for approximately three hours; and it was an interesting interchange. He stated the representative was unaware of the Lease Agreement between the Veterans Council and the County; he was unaware of the document the County got from the State relating to the turnover of the property that was identified surplus from the cancellation of the extension of Sykes Creek Parkway; and he made a comment to the effect that he was going to have to get with the legal department concerning title insurance because he was unaware of any of these factors. He stated the Board spent $5,000 of the County’s dollars to survey the property and make the preliminary drawings for expansion of the Center and Museum; and they have the documents. He stated he did not follow Mr. Scott’s comments; they have blueprint documentation in their files of the PUD changes, one in 1996, one in 2000, two in 2001, and another one in 2003; and the 1996 document shows a tremendous density, but the blueprints show a lot lesser density and design. He inquired is it correct that if they make changes downward that does not require a new PUD assessment.

Commissioner Pritchard stated the Bussen Mayer analysis that Mr. Jones spoke of is the Fortenberry Road Stormwater Pond Analysis; one of the real benefits is on the south side of Fortenberry Road; and they are creating almost nine acres of retention pond to take the place of 1.8 acres that is on the Mall side. He inquired what effect will that have on the current runoff that is coming from all the asphalt at Merritt Square Mall. Mr. Jones advised they would be able to treat approximately 30% of the existing older mall, which currently has no treatment because it was constructed prior to stormwater management criteria being implemented; it is one of the last remaining areas in this part of Merritt Island that has not been already successfully treated; and so they see it as a real coup. Commissioner Pritchard inquired if, based on the conversation with Pulte Homes and the Mall management, it is Mr. Jones’ assumption that this is going to be a viable project and that Pulte Homes is not having a problem with moving the entranceway, but is looking at it as a benefit to their development. Mr. Jones responded Pulte Homes has indicated it looks favorably on a relocation if it avoids the conflicts. Commissioner Pritchard stated that works for him. He stated Mr. Rossi has a comment about the Board’s inaction; but it has not come to the Board, so there is no inaction; there has been no action as it is just in the discussion stage; and he did not give Mr. Rossi the impression that the revised plan would be placed, but that it would be placed on the Agenda as soon as something comes about. He stated Mr. Rossi also said that surprisingly Commissioner Carlson’s office was not aware of it; but he does not think anyone was aware of it so it is not a matter of surprise that some is not aware; and the surprise to him is that it is back on the Agenda. He stated the discussions are all in the works; it is a matter of letting it come to fruition; and to look at the private development that has purchased property and is in the stage of working out what is to be built there, and assume the County is going to raise money to buy it, it is not going to happen.

Mr. Rossi stated Commissioner Pritchard is a Johnny-come-lately; with Commissioner Pritchard responding he is a Johnny-come-here. Mr. Rossi stated he and Commissioner Carlson have been working on this for quite a while; she wrote to the Veterans Administration two or three years ago asking for funds to buy the property, which was $6 million at that time; and it was also in the newspaper that the Commission approved the purchase of the property, but the funds were not there to do it. He stated Commissioner Carlson has been making an honest hard effort; they have been working and working; and all of a sudden, the rug has been pulled out from under them. He stated Pulte has the property; it is gone; and they are still spinning their wheels.

Commissioner Pritchard stated he told Mr. Rossi weeks ago that he has been working on the issue, but it was decided a long time ago. Mr. Rossi stated he is working on the issue of the driveway; the PUD still says the driveway is in the Center; and they are working to get the driveway out of the Center; with Commissioner Pritchard advising that is what he is doing. Mr. Rossi stated historically whenever a Commissioner has said something, the other Commissioners knew what was going on; Commissioner Carlson is his area Commissioner; he talked to her and she did not know anything about it; and he is not trying to hurt Commissioner Pritchard’s feelings or go over or around him. Commissioner Pritchard stated he is a veteran, but Commissioner Carlson is not a veteran; with Mr. Rossi inquiring what that has to do with anything. Commissioner Pritchard stated he is a veteran and the District Commissioner for the Veterans Center; and he is going to make sure the Center gets all that the County can give to it. He stated what he is doing now is taking the driveway issue out; there is a good chance of doing that; and he does not want to mess that up. He stated he is looking to give the Center a couple more acres; eventually he is looking to provide some expansion money although he does not know where it is going to come from; all of those things are in the works; and is Mr. Rossi has an issue, he should call him. Mr. Rossi stated Commissioner Carlson is a veteran Commissioner; she has been on the Board for six years; he has been working with her; and she has worked hard for the veterans. He stated they are Brevard County veterans; and he lives in Satellite Beach, not Merritt Island. Commissioner Pritchard stated the Veterans Center is in Merritt Island; and he too is a Brevard County veteran.

Chairperson Colon stated it sounds as if everyone wants the same thing; and recommended ending the discussion. She stated the Board will keep a close eye on the negotiation that looks like it will be transpiring in the next 30 to 45 days; that is the key; and everyone should pull together. She stated this is not a time for pointing fingers or anything like that; and both Commissioner Pritchard and Commissioner Carlson support the cause.

Commissioner Scarborough stated the Board would be well advised to say it recognizes the tremendous value that veterans make to the community and the value of the Veterans Center to the community, and it will do all it can to keep the integrity and allow it to grow and mature as a quality place in Brevard County. He stated in saying that, the Board, as a whole, is going to be giving direction that is where it wants to go; and it will make a statement. He stated the Board will be hearing more about the particulars; and that might be a good motion from the District 2 Commissioner, if he finds it acceptable. Commissioner Pritchard requested he repeat; with Commissioner Scarborough doing so.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to declare that veterans constitute a very valuable asset to the County; the Veterans Center is also a valuable asset; and to keep the integrity and allow it to grow and mature as the veterans need is an objective of the Board of County Commissioners.

Commissioner Pritchard encouraged anyone having an issue to visit him. He stated he will make sure others know, and will do his best to make sure things happen.

Commissioner Carlson inquired if the changes from the negotiations and everything else that is being done would constitute a change that would cause the PUD to come back in front of the Board because of the access issue. Mr. Scott responded he does not know; and they will have to consider that when it is formalized.

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

Mr. Rossi stated at the beginning of the school year the Veterans Council proposed that the Junior ROTC select the best student from all the schools and present that person at the end of the year to the Council; and they will create a wall of honor for that student. He advised some of the first Junior ROTC students who came to put up the flags at the Council meetings have been in the service, are out, and now are productive citizens. He stated getting children into the Junior ROTC where they will get some discipline and honor would help with the drug problem.

Chairperson Colon agreed; and stated the Board appreciates the veterans, and it is just a matter of working together to get this done.

CITIZEN REQUEST - AL GLOVER, RE: ST. JOHNS’ CAMPSITES

Al Glover submitted information to the Board, but not the Clerk; and stated he is representing himself and other individuals who own property on Kings Road and Bass Road, also known as St. Johns Campsites. He inquired if anyone has ever been out there; and advised it is hard to find if you do not know where it is. He stated it is adjacent to Lake Poinsett, west of I-95; it is behind all the trailer parks on SR 520 at I-95; and there are three different camps there going all the way back to the St. Johns River and Lake Poinsett. He stated fifteen years ago a group of people purchased lots at King and Bass Roads; the purpose was to eventually build stilt-style homes so they could see the lake and fish; they are all fishermen or fisherwomen who live out there; and they intended either to live there or just use it on weekends. He stated in his particular case, it was used on the weekends with his children and grandchildren; those who moved quickly got to build their 900-square foot stilt homes; but unfortunately for the rest, an event occurred north of SR 520 that affected them dramatically. He stated the Smith family got into a battle with the St. Johns River Water Management District in developing a big piece of land in the area; and at the time the St. Johns River Water Management District decided it did not like the way the septic tanks were set up. He stated at the same time there had been a tremendous amount of erosion; the average loss of land was 18 feet; and on his property it was 20 feet. He noted they are not on the lake, but on a canal adjacent to it; he does not recall endorsing what the St. Johns River Water Management District did with septic tanks at that time, which was 75 feet; they did not want to go along with it; and Planning and Zoning Board recommended against it, which he is aware of because he was chairman at that time. He stated the St. Johns River Water Management District refused to give them permits because it did not want any septic leaching into the river; and they all concur with that. He stated the St. Johns River Water Management District also said it would not even let them build their land back so they would have the amount of footage needed; and they would not do that because they said it would kill the spawning grounds; but that is not so because of how big Lake Poinsett is. He stated those who have lost the right to build on the lots asked their neighbors at the time if they minded them putting small recreational vehicles out there to fish and spend the weekend in; they were not hooked up to any sewer or power; and not a single resident was opposed to that. He stated apparently there was an anonymous complaint that there were violations there; the County came out; and that was the first time they ever heard that there was a violation of the rule that said on undeveloped residential property you cannot have any type of recreational vehicle, or even a tent. He stated if someone went around the County, they would find a tremendous amount of property with these types of vehicles on undeveloped property. He stated when none of the property owners objected, four of them put small trailers out there; and reiterated they were not hooked to sewer or power, but used generators and sewerage left when the trailers did. He stated the trailers are well kept; and two of the pictures he submitted show how isolated the property is and how few homes are there. He noted only one trailer out there looks bad; the only reason it is still there is because it cannot be moved; the property is in foreclosure; they cannot find the people who own it; and as soon as it is foreclosed, the individual taking possession of the property will get the vehicle moved out. He stated their property has been declared unusable by the Property Appraiser; they pay $12 in taxes a year; but they would much rather be paying the $600+ they were paying fifteen years ago, if they could build on the property. He requested Code Enforcement back off on enforcement of the Code while they get together with County staff to work out a solution so they can use their property and make it usable. He stated that will be good for the County and good for them; and hopefully the Board will help them meet with staff and come to a conclusion.

Otis Trotter stated he has lived on Bass Road for almost 20 years; he was fortunate that he bought his home already constructed; and so he was grandfathered in. He stated they have lived and fished with the other owners; they love having them come out there; and many of the people have had trailers out there for ten or fifteen years. He stated they do not live in them all the time; but they keep the area clean, picked up, and the lawns mowed; and they are an asset to the area rather than just having vacant land sitting there. He requested the Board direct staff to work with the people to see if they can work out some things so there can be more homes out there.

Donald Franklin stated he has lived in the County for 42 years; a few weeks ago he received notice from Zoning that the trailer he had parked out there that he has owned for a good number of years was in violation of County Zoning Code; and that is the first he ever heard of it. He stated when he got in touch with the person in charge, he was told the trailer had to be moved within ten days; even though it has been there for years; and he moved the trailer. He stated he already incurred some loss in that; there are other people who still have trailers out there, which are maintained and look nice; and some consideration should be given to looking into the situation to see what can be done. He stated some modification may be made to the interpretation of the zoning regulations.

Assistant County Manager Peggy Busacca stated currently the existing zoning on the property will not permit mobile structures to be located there; but there are a couple of different options.

She stated they could investigate what kind of zoning would be appropriate; they could investigate whether a Zoning Code change would be required; and they could also talk to the State to find out what kind of environmental health regulations would have to be in place or whether they could ever build a single-family structure. She stated the group is looking for abatement while the County investigates the options.

Commissioner Scarborough stated his office received a call; and he submitted notes to the Clerk concerning the call, which was from a woman who said the lots could be built on, but would have to be combined to do so, and that it was not fair to people who have already bought extra lots to allow this to happen, and that everyone should follow the same rules. He stated the caller also advised these are not recreational vehicles or trailers; they have not been moved in years; and she requested someone come down to look at the recreational vehicles. He stated he supports staff going out to see what is going on.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to acknowledge the report from Al Glover regarding use of RV’s at St. Johns Campsites due to inability to build homes on their lots; and direct staff to investigate the issues, hold enforcement in abatement during research, and return in 60 days with a report to the Board. Motion carried and ordered unanimously.

Commissioner Carlson stated the Agenda item refers to St. Johns Campsites; and if there was any historical data showing they were campsites, that would be interesting to know.

DISCUSSION AND STAFF DIRECTION, RE: FUNDING OF LEGAL REPRESENTATION OF
INDIGENT PERSONS IN CRIMINAL CONFLICT CASES

Commissioner Scarborough stated he sits on the Conflict Committee; the contracts are going to be up in six to eight months; and the question is whether there is something the Board should be doing. He stated the problem is if there are no attorneys serving under the contracts, the judges will appoint attorneys at up to $150 per hour, which will negatively impact the County’s budget; and that is why he thought it prudent to bring this back to the Board for discussion. He noted he missed the last meeting, but he did listen to some of the dynamics of the discussion at that time.

Chairperson Colon stated she has not problem seeing the presentation and getting the figures; and inquired if the interviews already took place for the applications that came in. Assistant County Attorney Cliff Repperger stated they sent out advertisements by direct mail advertising; they got five applicants; and the Committee found one to be sufficient. Chairperson Colon stated they need six more; with Mr. Repperger responding there are still five vacant positions and there will be five or six at the end of October. Chairperson Colon stated she spoke to someone at Job Link who said how helpful it would be to advertise these kinds of things; and that is what she brought to the Board’s attention at the last meeting concerning making sure the Board follows the different avenues and gets the word out. She inquired if there was a mailing; with Mr. Repperger responding yes, there was a direct mail advertising; and one attorney was approved by the Selection Committee, leaving them with five vacant slots, if the attorney is approved by the Board.

Mr. Repperger stated in helping the Board with its analysis, he has done a cost/budget analysis to demonstrate the County’s situation. He stated they based the analysis on last year’s numbers; and assuming the same number of criminal appointments for the coming year as there were for the last fiscal year, the Board would be looking at 145 juvenile cases appointed, 154 misdemeanor cases, and 586 felony cases for a total of 885 cases. He stated the cases are capped by Statute in terms of what attorneys can bill for work performed; and if the contract had not been in place for the previous 13 months, using the cap rates, the figure the County would have paid is $1,764,000 or $135,500 a month.

Chairperson Colon inquired if felonies are more money; with Mr. Repperger responding the felony cap is $2,500 per case and the misdemeanor cap is $1,000 a case; there are cases where the cap can be deviated from under case law; those would be cases where there are extreme or unusual circumstances; and they do happen from time to time. Mr. Repperger stated in addition, capital conflict contracts are excluded from the analysis; they are billed at $80 an hour in court and $60 an hour out of court; and those cases are normally dealt with separately because there is a lot more time involved in a capital case than with an average felony. He stated looking at the next nine months, under contract what had been budgeted was approximately $195,000 for ten positions at $19,500 paid out over nine months; the attorneys had been receiving $26,000 annually; and prorated to nine months, it worked out to $19,500. He stated without the contracts in place, over the same nine-month period, a reasonable estimate based on the numbers would be $1,219,500, so that is the current situation the Board is in. He stated there are five positions that are filled that are working; and there are five divisions that are appointing outside of the contract right now; beginning October 1, 2003, there have been some outside appointments; and the numbers are happening now. He stated there is some work being performed under the contract, but there is the possibility those attorneys will also resign their positions; and then all of the work in the County will be performed at an hourly rate.

Commissioner Carlson inquired if $1.2 million is a conservative estimate; with Mr. Repperger responding it is a reasonable estimate; they never know in any given month how many cases there will be, so the best they can do is look at the prior year’s numbers and get an estimate. He stated it is a conservative estimate using the cap rate; and it is not unreasonable. Commissioner Carlson stated they are only estimating nine months out of 2003-2004; they are not even talking about the addition; and inquired will it continue at an hourly rate until those cases are closed. Mr. Repperger responded it will unless it caps out; it is assuming all the cases appointed up to June 30 cap out; that is the total amount; and he would not think it would be over $1.2 million.

Chairperson Colon stated she is trying to understand the numbers; the first portion of it has a total of $1.7 million; then it is $1.2 million; and inquired what is in one month. She stated it would be hard to tell because one month could be busy and the next one not. Mr. Repperger stated there is no way except to take an average; and in taking a 13-month average, it works out to $135,500 a month.

Commissioner Scarborough clarified far left is thirteen months, and far right is nine months; and that is the deviation from $1.7 million and $1.2 million. He inquired if the Board could be at risk for $1 million by not trying to control this; with Mr. Repperger responding if the current reality does not change. Commissioner Scarborough stated he thought it prudent to come back and discuss this with the Board; there were attorney applicants; the Committee consists of a judge, the Public Defender, and himself; and with four of the applicants, they did not want to move forward.

Commissioner Carlson stated she thinks the Board missed the boat the last time it talked about this when all the conflict attorneys were present asking for $23,500 or whatever. Commissioner Scarborough stated he missed that meeting, and that was not good. Commissioner Carlson stated she argued the case that the Board could pay now or pay later. Commissioner Scarborough stated the judge and the Public Defender are very knowledgeable about this; while he votes on the Board’s behalf, he is not knowledgeable about the qualifications of the individuals; but he does listen to what they say; and if they end up not having adequate representation, they are going to have to have things retired, which is not to the benefit of the system. Commissioner Carlson inquired if there are applicants interested in the remaining positions; with Mr. Repperger responding after the last Selection Committee meeting, he went to the president of the local chapter of the Criminal Defense Lawyer Association for the Florida Bar in Brevard County, who is Joe D’Achille; and Mr. D’Achille is acting as liaison between attorneys performing the work in the County and the judiciary. Commissioner Scarborough stated Bill Powell called him; and one of the concerns is to contact all attorneys in the County because otherwise there is going to be some criticism if the Board comes out with another format of the contract and does not include everybody. He stated it is good to have the conversation going on; but recommended physically contacting all attorneys or there will be criticism. Mr. Repperger noted they did not negotiate with them at all, and only opened a discussion with them; with Commissioner Scarborough responding he understands. Commissioner Scarborough stated staff can prepare something, have it in the attorneys’ offices in a day, and give them three days to respond if interested.

Chairperson Colon stated she does feel there has been a good effort to try to communicate to the proper parties; and that is just based on some of the information she received in her office. She stated she provided that information before; and she was hoping to hear that the County had been in touch with the Bar Association and all the different publications. She advised she spoke to Linda South concerning putting the information out with Job Link, so anyone in the State could pull it up on his or her computer. She stated it has been brought up that there are attorneys who have two contracts, which is close to $50,000, which might to attractive to some attorneys who have criminal law background and want to move to Brevard County. She stated one of the criteria is not necessarily that they live in the County, but that they have a criminal law background. Chairperson Colon stated she does not feel comfortable that those things have been met; the Board should at least try to let the process go through for another two months to see what kind of feedback it gets; and she is very uncomfortable that the Board has not given this kind of contract to anybody else. She stated it needs to be opened up to everybody in the judicial system; contracts have been given to everybody else for just nine months, not twelve; and that is one of the things she has been uncomfortable about. She stated if the Board is compelled to take action today, that is okay; it can go forward; but personally she does not think that everything was done. She stated it was almost like who knew who; she was uncomfortable with that process; she has spoken to a few attorneys who had no knowledge the County was looking for anyone; but if the Board would like, it can move forward.

Commissioner Carlson stated the Board is compelled, based on the numbers, to move quickly and get the word out to as many attorneys as possible to see if there is someone who can come to the table as soon as possible to provide the services; if the Board waits two more months, that would mean additional dollars; there may be more appointments needed; and then the Board is going to be in a worse position than it is now.

William Powell, Jr. stated he has talked to Commissioner Scarborough; he served as a conflict attorney from September 1998 to June 2003; and when the contracts came up for renewal, he did see it in the newspaper. He stated he was directed by Mr. Repperger and the County Attorney’s office that the rate would be $26,000 prorated to $2,100 a month; and at the last meeting Mr. Repperger said that when an attorney gets off, it takes a couple of months to clear out. He stated he has been off since June 30, but still has eight active cases; and it will be another four to five months before they are cleared out. He stated the contracts have been extremely beneficial to the County; they are all hardworking attorneys working at well below any market rate or reasonable compensation; at times it has been a burden; and one of the reasons he had to quit was because of the number of cases that were given. He stated he did not have enough time; and he was almost put out of business. He suggested leaving it at the hourly rate; stated he realizes it would cost a lot more money; but when it was advertised or the word got around that they were going to an hourly rate, over 30 highly-qualified attorneys submitted their names; and if the Board decides it wants to go ahead and put it out on contract, he would suggest that it make it at a rate of compensation that it is fair and equitable for the attorneys who are going to apply. He stated the more the Board can come up with to compensate for the next eight months, the better pool of candidates it is going to have to select from; and encouraged the Board to go with the contract and increase the rate.

Commissioner Pritchard requested a recommendation from Mr. Repperger. Mr. Repperger stated he spoke to Joe D’Achille; though they did not negotiate, they did engage in dialogue; and Mr. D’Achille spoke on behalf of the attorneys that had been selected the last time, and had already been approved by the Selection Committee. He stated the feeling from them was that at a rate of $32,000 over the next eight months, they would be willing to come back; he does not know that that is his recommendation; but clearly some action is necessary immediately because the numbers are accruing as the Board speaks. He stated originally the advertising went out in June; it was direct mail advertising to all of the Brevard County Bar Association; and it was again direct mail advertised after the last Board meeting; he stated these are the applicants they are getting at the current rate, so clearly there is an issue with regard to the rate; and it is just a matter of adjusting the rate.

Commissioner Pritchard inquired how much is the State going to pay; with Mr. Repperger responding the State right now under the proposed legislation has an hourly rate limited to the caps, so the numbers are comparable to what he showed the Board based on the hourly rates. Mr. Repperger stated there may be some adjustment to that in the next legislative session coming up; what they are going to do is enter into contracts with attorneys who agree to be limited to those caps in all cases; and that is how they anticipate keeping their costs down, but they are still going to be excessive. He stated Brevard County has a unique situation; and there are not many counties that operate under contracts as Brevard County has for the last ten years or so. Commissioner Pritchard inquired if they have broken down that rate into an annual salary; the Board was paying $26,000 a year; and inquired what will happen in July with the State rates; with Mr. Repperger responding they have not broken it down like that in terms of a salary rate. Commissioner Pritchard inquired would it be more or less. Commissioner Pritchard stated the reason he is asking is because at the time he was not understanding how much time goes into a case; $26,000 was the amount that was suggested for doing nine months work and then carrying forward to sweeten the deal; the attorneys wanted the $26,000 paid for nine months; he said it was a twelve-month salary and that would giving a raise; and inquired what the State is offering in terms of an annual salary based on caseload, and is it going to exceed $26,000. Mr. Repperger responded it all depends on the number of appointments any one attorney gets; and if they happen to get a lot of appointments, they are going to far exceed the $26,000.

Commissioner Scarborough stated the Board can talk about what the State intends to pay, but a contract is on both sides; Judge Moxley is very concerned whether they are going to be able to find competent attorneys at what the State is proposing; and the State is going to be in a very difficult position as well when this comes around. He stated he does not know what any given attorney will want; but as an attorney, he does a certain type of practice; looking at all the attorneys in the pool, there are only a limited number who want to take criminal work; and of those some may have their practice completely full while others may not be mature enough or for other reasons not be capable of acting. He stated while the Board can look at the members of the Florida Bar, not everything there is in that pool; and the Board needs to ask who will judges feel are going to be competent representation so things do not go backwards because an individual has not been afforded competent counsel.

Chairperson Colon stated attorneys wanted to get paid for twelve months for doing nine months work; that is what it all came down to; and they talked about crossing that bridge when they got there in regard to after June 30 to try to figure out how much money would have to be paid for those cases that pass the June 30 date. She stated it was quite obvious to her that it was almost like a union negotiation; if they did not get their way, they would walk; and they did walk.

Chairperson Colon stated the point is they should now go out and find out who would want these positions; she does not feel they made a legitimate effort to do that; and she would definitely like the cases tracked to see how many continue after June 30. She stated she is very familiar with how attorneys work; an attorney can either prolong the process or make sure everything is taken care of beforehand; she is familiar with this based on discussions with attorneys who warned her not to be fooled; and she is just giving the Board feedback.

Commissioner Scarborough inquired if this is such a lucrative contract why is the Board talking about it, and why are there not 20 applicants for each slot. He stated they do not have the slots filled; if they do not have them filled, the County is going to pay because the judge is going to do the appointment; and he does not know what is in the minds of the attorneys, but the truth of the matter is for whatever reason, there are vacant positions that are going to compel the Board to pay additional money because the attorney may be hired at an hourly rate. He stated he does not understand why the Board cannot proceed and get them locked into a rate that is going to save the taxpayers money.

Commissioner Pritchard stated he agrees; as much as he does not like the feeling he is being held hostage, the Board is being held hostage; and so he agrees with Commissioner Scarborough.

Mr. Jenkins stated he understands all the comments that have been made; but he is looking at Mr. Repperger’s numbers; and the way he computes it, if they continue to do this the way the courts are going to do it, it will cost in excess of $100,000 a month, while if the Board gave the increase, it would cost $330,000 a year. He stated the Commissioners can divide that by twelve and see there can be dramatic cost savings. He stated as to why they asked for an increase, not long ago Judge Davidson came to the Board for an increase for the dependency attorneys from $35,000 to $50,000; the conflict attorneys are working at $19,500; so there was a sense of those working for $19,500 that the dependency attorney were getting a significantly greater amount of money. He stated in the long run the Board is only going to have this for nine months and then will be out of it; making an adjustment to get people under contract will result in significant cost savings; and if the Board does not, it is going to cost over $100,000 a month.

Chairperson Colon stated it is not true to make those kinds of comparisons because it is like comparing apples and oranges; and requested staff see how many cases those folks are handling versus the conflict cases. She stated Judge Davidson’s cases are high; and the attorneys deserve every penny the Board has given them.

Commissioner Carlson stated the time is now to cut the losses; and what the County Manager is recommending is to reduce the number a little by increasing the wages for the positions, whether by contract or fixed hourly wage.

Commissioner Scarborough inquired is $32,000 the amount Mr. Repperger is recommending. Mr. Repperger responded the Board is free to do whatever it wants, but $32,000 does not sound unreasonable. Commissioner Scarborough inquired about $30,000; with Mr. Repperger responding they can make that suggestion.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve $30,000 for criminal conflict attorneys; direct staff to email or fax all members who are attorneys in Brevard County and advise them of the openings; and schedule a meeting next week of the Conflict Committee to make the selections. Motion carried and ordered unanimously.

Chairperson Colon recommended Mr. Repperger contact Linda South regarding making sure the information is accessed by those not in the County. Mr. Jenkins advised he will help with that.

Commissioner Carlson inquired if the $30,000 is a contract or hourly; with Commissioner Scarborough responding it would be $30,000 for the period from November 1, through June 30, 2004.

Discussion ensued on the amount of the contract, the annual amount, and comparison to potential hourly charges.

Mr. Repperger inquired if the motion includes an amendment of the existing contracts already in place; with Commissioner Scarborough responding he would make that part of the motion; otherwise, every attorney under contract would object to being paid less. He inquired if Chairperson Colon would prefer to have a separate motion; with Chairperson Colon responding no, it is on the record.

PUBLIC COMMENT - ANN COBURN, RE: SALES TAX REFERENDUM

Ann Coburn stated she wants to go on record to express her disappointment at the Board’s lack of ethics in spending taxpayer money to promote the penny sales tax increase, something the Board stated it would not do. She stated she does not belong to any anti-tax group; but she has been involved with the issue for months and knows the Board intended to educate the public on the matter. She stated the Board has done more than just educate; as Commissioners they have said they cannot speak for or against the tax, but instead they have sent the County Manager and others out to speak for it. She stated Mr. Jenkins is a very loyal servant to the Board; he does exactly what the Board wants; and any criticism of him should apply to the Board. She stated they have spent countless hours appearing at many meetings throughout the County speaking for the sales tax increase, but omitting many facts such as the list of projects having no priorities or ranking, that the anticipated revenue will not cover the cost of all the projects, that a growth factor is included in the revenue estimate but inflation is not factored in the project cost estimate, and that operating costs will be at least $250 million over the life of the tax. She stated last week it seemed some damage control was attempted; during the public comment section, Mr. Jenkins and some Commissioner made comments attempting to counteract facts that had been brought forth by people who check the data for themselves instead of swallowing the official line; but those comments contradict what had been previously published in the Board minutes; and whether one calls them inconsistencies or lies depends on ones own morality. She stated last week’s comment was the revenue growth factor was estimated at 1%; but the minutes say 4%; and last week’s comment was the anticipated revenue will cover the cost of the projects, but her observation of the Board meetings and workshops and the minutes of those and a document originating from the County Manager’s office all state that the total cost of the projects far exceeds the anticipated revenue. She stated last week’s comment was that the Board did not refuse to prioritize projects; but her observation of the meetings and workshops and minutes of those workshops indicates that Mr. Jenkins asked the Board several times to rank the projects, but Commissioner Pritchard was the only one who did. She stated the comment was made a couple of times that the Board could not prioritize one project over the other; and she understands the politics of that because they could lose the vote of those on the low end of the list. She stated these inconsistencies do not encourage trust; there is no way to reverse what the Board had done; but requested in the future the Board not use taxpayer money to withhold information or misinform the voters as this does not show fiscal responsibility and it diminishes the public trust.

County Manager Tom Jenkins clarified the growth factor is 4%, as stated previously and publicly; and those are the numbers that have been projected by the County’s Financial Advisor, who said if it was to increase by 1% and be 5% instead of 4%, it would generate an additional $60 million. He stated in addition there is nothing that has been issued from the County Manager’s office that has stated there are insufficient revenues to cover the cost of the projects; nothing has been issued from his office that said the operating expenses for the County would be $250 million for the projects, and in terms of the costs exceeding the projects, they have not stated that. He stated in fact, they have shown different numbers to indicate a different response; and while he respects Ms. Coburn’s right to her opinion and right to share that opinion, he wanted to state for the record what they have and have not said.

WARRANT LIST

Upon motion and vote, the meeting was adjourned at 5:04 p.m.

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JACKIE COLON, CHAIRPERSON
BOARD OF COUNTY COMMISSIONERS
ATTEST: BREVARD COUNTY, FLORIDA

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SCOTT ELLIS, CLERK

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