The Board of County Commissioners of Brevard County, Florida, met in regular session on February 22, 2000, at 9:06 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Sue Carlson, and Helen Voltz, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Dr. Richard Chandler, First Methodist Church of Port St. John.

Commissioner Helen Voltz led the assembly in the Pledge of Allegiance.

APPROVAL OF MINUTES

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to approve the minutes of the September 21, 1999 Budget Hearing. Motion carried and ordered unanimously.

PERMISSION TO SCHEDULE EXECUTIVE SESSION, RE: FRYE VS. BREVARD COUNTY

County Attorney Scott Knox requested the Board schedule an Executive Session on February 29, 2000 immediately following the Board meeting, to discuss Frye vs. Brevard County, which is a personal injury case.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to authorize the County Attorney to schedule an Executive Session on February 29, 2000 immediately following the Board meeting, to discuss Frye vs. Brevard County. Motion carried and ordered unanimously.

DISCUSSION, RE: REGIONAL BOARD OF ADVISORS OF ORLANDO

Commissioner O'Brien stated he received something from the Regional Board of Advisors of Orlando; he is not familiar with the group; and passed the written information to Commissioner Scarborough who has been a Board leader in regional associations with other counties. Commissioner Scarborough advised each Commissioner received the same information.

REPORT, RE: INCIDENT IN PENNSYLVANIA

Commissioner O'Brien stated the police in Radner, Pennsylvania interrogated a suspect by placing a metal colander on his head and connecting it with wires to a photocopying machine; they placed the message, "he's lying" in the copier, and pressed the copy button each time they thought the suspect was not telling the truth; and believing the lie detector was working, the suspect confessed. RESOLUTION, RE: PROCLAIMING

NURSING STUDENT DAY AND WEEK

Commissioner O'Brien read aloud a resolution proclaiming February 23, 2000 as Nursing Student Day and February 20 through 26, 2000 as Nursing Student Week in Brevard County.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to adopt a Resolution proclaiming February 23, 2000 as Nursing Student Day and the week of February 20 through 26, 2000 as Nursing Student Week, and encouraging all residents to recognize the contributions made by student nurses to the health care of all Floridians. Motion carried and ordered unanimously.

Commissioner O'Brien presented the Resolution to Student Nurses Tammy Mosley, Sandra Hart, and Amy Garrison. Ms. Mosley stated the Freshman class is organizing events for Nursing Student Day; and advised of past events.

RESOLUTION, RE: COMMENDING BREVARD COMMUNITY COLLEGE MEN'S BASKETBALL TEAM

Commissioner Carlson read aloud a resolution commending the Brevard Community College Men's Basketball Team.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to adopt Resolution commending the Brevard Community College Men's Basketball Team for winning the Southern Conference Title, guaranteeing it a spot in the Florida Community College State Tournament in Marianna, Florida on March 1, 2000. Motion carried and ordered unanimously.

Commissioner Carlson presented the Resolution to the Brevard Community College Men's Basketball Coach who expressed appreciation for the Resolution and community support; and advised of their schedule.

RESOLUTION, RE: EXTENDING GREETINGS TO DR. MAYA ANGELOU

Chairman Higgs stated on Saturday, February 26, 2000, Dr. Maya Angelou will be the featured speaker for the Child Care Association; and she has been asked to bring greetings from the Board.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to adopt Resolution extending greetings to Dr. Maya Angelou. Motion carried and ordered unanimously.

RESOLUTION, RE: SUPPORTING THE BREVARD COUNTY SCHOOL BOARD GOAL OF ACHIEVING THE TOP 10 BY 2010

Chairman Higgs stated she faxed out information concerning the School Board selection of a Superintendent; all elected officials were invited to the focus group on Thursday; and it would useful to have a resolution expressing the Board's goal of having the County as one of the top 10 communities in the country.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to adopt a Resolution expressing support of the School Board in achieving the "Top 10 by 2010." Motion carried and ordered unanimously.

ITEM REMOVED FROM AGENDA FOR DISCUSSION

Commissioner O'Brien requested Item III.A.3 be removed from the Consent Agenda for discussion.

RESOLUTION AND DEED, RE: TRANSFERRING RIGHT-OF-WAY TO FLORIDA DEPARTMENT OF TRANSPORTATION FOR WIDENING OF SR 500

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to adopt Resolution and execute Deed transferring right-of-way to Florida Department of Transportation for retention pond use in conjunction with the proposed widening of S.R. 500 (U.S. 192, New Haven Avenue, Kissimmee Highway) from I-95 to Osceola County line. Motion carried and ordered unanimously.

RESOLUTION AND DEED, RE: TRANSFERRING RIGHT-OF-WAY TO FLORIDA DEPARTMENT OF TRANSPORTATION FOR US 1/VALKARIA ROAD INTERSECTION IMPROVEMENTS

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to adopt Resolution and execute Deed transferring right-of-way interest to Florida Department of Transportation for intersection improvements at the northwest corner of U.S. 1 and Valkaria Road. Motion carried and ordered unanimously.

RESOLUTION, RE: RELEASING CONTRACT WITH ROSTAN, INC., FOR IMPROVEMENTS IN CRANE CREEK SUBDIVISION, PHASE V

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to adopt Resolution releasing Contract dated December 7, 1999 with Rostan, Inc. for improvements in Crane Creek Subdivision, Phase V. Motion carried and ordered unanimously.

RESOLUTION, RE: RELEASING CONTRACT WITH THE VIERA COMPANY FOR IMPROVEMENTS IN VIERA, TRACT Z, CLUBHOUSE DRIVE, PHASES 1 AND 2

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to adopt Resolution releasing Contract dated October 27, 1998 with The Viera Company for improvements in Viera, Tract Z, Clubhouse Drive, Phases 1 and 2. Motion carried and ordered unanimously.

REQUEST FROM ROBERT CLINEMAN FOR REDUCTION OF FEE AND RELEASE OF CODE ENFORCEMENT LIEN, RE: 9910 HOLLY STREET, MICCO

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to reduce accrued Code Enforcement fine for violations at 9910 Holly Street, Micco (Case No. 98-2027) from $6,050 to $921 plus enforcement cost of $307 for a total of $1,228, and authorize staff to prepare and execute Release and Satisfaction of Lien upon receipt of payment. Motion carried and ordered unanimously.

REQUEST FROM HOLLY MARCHICA FOR REDUCTION OF FEE AND RELEASE OF CODE ENFORCEMENT LIEN, RE: 1333 LENORA STREET, MERRITT ISLAND

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to reduce accrued Code Enforcement fine for violations at 1333 Lenora Street, Merritt Island (Case No. 99-1033) from $2,225 to $756 plus enforcement cost of $252 for a total of $1,008; and authorize staff to prepare and execute the Release and Satisfaction of Lien upon receipt of payment. Motion carried and ordered unanimously.

AGREEMENT WITH MERRITT ISLAND REDEVELOPMENT AGENCY, RE: COUNTY SERVICES

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to execute Agreement with Merritt Island Redevelopment Agency for County services. Motion carried and ordered unanimously.

PERMISSION TO SOLICIT REQUEST FOR PROPOSALS AND APPOINT SELECTION COMMITTEE, RE: PRODUCTION OF VISITOR INFORMATION GUIDE

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to grant permission to solicit request for proposals to produce the Tourist Development Council Visitor Information Guide; appoint the TDC as the Selection Committee; authorize award of proposal to the most responsible proposer; and authorize execution of Agreement by the Chairman. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE REQUEST FOR PROPOSALS, APPOINT SELECTION AND NEGOTIATING COMMITTEES, AND EXECUTE CONTRACT, RE: PINEDA LANDING PARK ARCHITECTURAL AND ENGINEERING SERVICES

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to grant permission to advertise request for proposals for Pineda Landing Park architectural and engineering services; appoint a Selection Committee consisting of Parks and Recreation Director Charles Nelson, Suntree-Viera Community Parks Committee member E. Harrison Rhame, Management Services Director Stockton Whitten, Facilities Construction Director Samuel Stanton, and Facilities Construction Coordinator Bill Clifton or their designees; appoint a Negotiating Committee consisting of Charles Nelson, E. Harrison Rhame, and Samuel Stanton or their designees; authorize award of the proposal to the most qualified firm; and authorize execution of the Contract by the Chairman. Motion carried and ordered unanimously.

ACCEPTANCE OF GIFT FROM GREG AND NANCY CROSS, RE: AIR HOCKEY TABLE FOR TRAVIS PARK COMMUNITY CENTER

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to accept gift of a 7-foot Goodline Air Hockey Table valued at $300 from Greg and Nancy Cross for placement at Travis Park Community Center. Motion carried and ordered unanimously.

APPOINTMENT OF AT-LARGE MEMBER, RE: BREVARD COUNTY PUBLIC GOLF ADVISORY BOARD OF COUNTY COMMISSIONERS

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to appoint Roosevelt (Zack) Tyler to the Public Golf Advisory Board, replacing Mel Clark as the at-large member, with term expiring December 31, 2001. Motion carried and ordered unanimously.

AGREEMENTS WITH CITIES OF CAPE CANAVERAL AND COCOA BEACH, AND TOWNS OF INDIALANTIC AND MELBOURNE BEACH, RE: OCEAN LIFEGUARD SERVICES

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to execute Agreements with the Cities of Cape Canaveral and Cocoa Beach, and Towns of Indialantic and Melbourne Beach for ocean lifeguard services commencing March 25, 2000. Motion carried and ordered unanimously.

EASEMENT ENCROACHMENT AGREEMENT WITH S&S ENTERPRISES, INC., RE: ISLES OF BAYTREE SECURITY GATE COLUMN

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to execute Easement Encroachment Agreement with S&S Enterprises, Inc. for construction of an entrance gate at Isles of Baytree Subdivision. Motion carried and ordered unanimously.

PERMISSION TO BID AND AWARD BID, RE: CONSTRUCTION OF RECLAIMED WATER IMPROVEMENTS IN NORTH BREVARD WASTEWATER SYSTEM

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to grant permission to solicit competitive bids for construction of reclaimed water transmission main on the John D. Wright (North Brevard) Regional Wastewater Plant site; and award to the lowest responsive bidder. Motion carried and ordered unanimously.

APPROVAL OF AWARD PAYMENTS, RE: EMPLOYEE INNOVATIONS PROGRAM

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve payment of $285.71 each to Don Boykin, Tom Hare, John Mitchell, Donald Miller, Bob Benoit, Karl Troili, and Jim Askew of the Public Safety Department as award for recommendation #306 to the Employee Innovations Program, building brush trucks in lieu of purchasing them, which resulted in savings to the County in excess of $84,000. Motion carried and ordered unanimously.

AUTHORIZATION TO RENEW INSURANCE AND EXECUTE CONTRACT, RE: CANADA LIFE POLICY NO. 86363 FOR LIFE AND AD&D COVERAGE

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to authorize renewal of Canada Life Policy No. 86363, Life and AD&D Coverage, effective March 1, 2000; and authorize the Chairman to execute the Contract renewal. Motion carried and ordered unanimously.

ACCEPTANCE OF DONATIONS, RE: EQUIPMENT FROM TIME WARNER COMMUNICATIONS AND CHARTER COMMUNICATIONS (FORMERLY FALCON CABLE MEDIA)

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to accept donation of modulator and amplifier for satellite dish system from Time Warner Communications (TWC) and television and wall mount for the Government Center lobby in Building C from Charter Communications (formerly Falcon Cable Media); and direct Management Services Director Stockton Whitten to send a letter of appreciation to each company. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT, RE: FOLLOW-UP INTERNAL AUDIT OF ENVIRONMENTALLY ENDANGERED LANDS PROGRAM

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to acknowledge receipt of the follow-up internal audit of the Environmentally Endangered Lands Program. Motion carried and ordered unanimously.

RESOLUTION, RE: AUTHORIZING KEVIN BODGE OF OLSEN ASSOCIATES, INC., TO MAKE COMMITMENTS ON DETAILS OF THE BREVARD COUNTY SHORE PROTECTION PROJECT

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to adopt Resolution authorizing Kevin Bodge, Ph.D., of Olsen Associates, Inc., to act on the County's behalf in condemnation proceedings regarding the Brevard County Shore Protection Project. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve Bills, as submitted. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING RIGHTS-OF-WAY IN PLAT OF FARMLANDS AT AVERILL - ATTORNEY LEONARD SPIELVOGEL

Chairman Higgs called for the public hearing to consider a resolution vacating rights-of-way in Plat of Farmlands at Averill as petitioned by Attorney Leonard Spielvogel.

Commissioner O'Brien stated the right-of-way being vacated is shown on the map as part of A1A; and inquired if right-of-way on A1A is being vacated; with Assistant Public Works Director Ed Washburn responding no, but Mr. Spielvogel can answer the question; and they have included the wording that Florida Department of Transportation (FDOT) requested be included. Commissioner O'Brien expressed concern about vacating rights-of-way on A1A because if the road ever has to be expanded, it will be necessary to buy back the rights-of-way. Chairman Higgs stated none of the A1A right-of-way that FDOT owns is being vacated.

Attorney Leonard Spielvogel submitted a survey of his client's property; and stated the survey indicates location of the two roads they are seeking to vacate. He stated the road closest to A1A does not touch A1A; and due to the concern of FDOT, the language of the vacation is such that it excludes any right-of-way. He stated the County does not have any interest in either of the roads; the roads have never been dedicated; they were shown on a plat in approximately 1894; the County has never maintained the road; but in April, 1972, the Board vacated another portion of the two roads, and in August, 1988, the Board gave a Quit Claim Deed to the Trustees of the Internal Improvement Trust Fund vacating another portion on the road system. He stated as a result of that, two title companies informed his client that it cannot issue title insurance on the property unless the County gives up whatever interest it claimed. He stated had the County not given any deeds or vacated in the past, there would be no issue, but because of the Board's previous action, the title companies were concerned that possibly the County was asserting some interest in the roads. He requested the Board consider returning his client's filing fee because it would not have been necessary except for the fact that prior Boards gave out instruments concerning these roads. He suggested the Board consider administratively vacating the entire road system so other people will not have to come before it to make requests that are unnecessary.

Commissioner O'Brien stated in all the years that the homes have been on the lots, no one has ever been required to vacate these rights-of-way; with Mr. Spielvogel advising that is not so. Mr. Spielvogel submitted a copy of a Resolution from 1972. Commissioner O'Brien inquired if that is the last time a piece of property was sold; with Mr. Spielvogel responding no, there have been many transactions on the South Beaches. Commissioner O'Brien stated he is only talking about Mar-Len Drive. Mr. Spielvogel stated he is talking about his client's parcel which is shown on the survey; and that is the reason he is suggesting the Board ask staff to look into removing any claims of the County to the length and breadth of these two road systems because there have been a number of properties sold on the beaches that have this right-of-way running through them, and someday a title objection is going to be raised. He stated in this instance Fidelity Title and Commonwealth Title have raised objections because the Board had vacated and given a Quit Claim Deed in years past; and if those things had not been done, he would not have had to come before the Board. Commissioner O'Brien inquired if Mr. Spielvogel's client would object to moving the line back to L5. Chairman Higgs stated Commissioner O'Brien's concern might be answered by the language. Commissioner O'Brien stated the vacating goes to the center line of the road, leaving no right-of-way along the street; and if it was moved back to Line L5, if a sidewalk was put in, there would be right-of-way to do that. He stated he does not mind vacating up to L5, but has a problem going to the center line of Mar-Len Drive. Mr. Spielvogel reiterated the County does not have an interest in the road; and what it has done is raise a title concern by the previous vacations. He noted the improvements are already in along A1A as it passes this property. Commissioner O'Brien stated the right-of-way goes to the center line of the road; and Mr. Spielvogel wants to vacate to the center line of the road; but if the road is ever turned over to the County, then it will not have any right-of-way in this section, and will have to buy it back. Mr. Washburn stated he does not know of any part of Mar-Len Drive that the County is vacating any public interest in.

Chairman Higgs stated there is a 50-foot right-of-way on Mar-Len Drive. Commissioner Scarborough stated Mr. Spielvogel has referred to inconsistent actions of the Board; and the Board may be creating a new one by this particular vacation. He inquired if there is any need to reach into Mar-Len Drive with the vacation. County Attorney Scott Knox inquired if there is a need to go into the road, assuming the Board did have an interest in it. Chairman Higgs stated there is language inserted in the resolution that deals with any interest the County may have in A1A; and suggested including any interest the County may have in the right-of-way of Mar-Len Drive. Mr. Spielvogel stated he does not have a problem with that; and his concern is the alleged right-of-way within his client's boundaries. Chairman Higgs suggested on the first page of the resolution where it says, "less and except the portion lying within the existing right-of-way of SR A1A" that Mar-Len Drive be defined and included. Commissioner O'Brien stated his concern comes from the hard lesson the Board has learned; the Board gave up a lot of rights-of-way for the Pineda Causeway across a period of years; and now it has to answer for it. He stated the same thing could happen in this case unless the Board is more cautious; and presented scenarios where there could be problems in the future. Mr. Spielvogel reiterated his concern is within the boundaries of his client's parcel; and it is fine to exclude Mar-Len Drive just as it did A1A.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to adopt a Resolution vacating rights-of-way in Plat of Farmlands at Averill as petitioned by Attorney Leonard Spielvogel, amended to exclude Mar-Len Drive.

Mr. Washburn advised of the objection of one property owner in Sea Crest Manor.

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

Chairman Higgs commented on the Pineda Extension. Commissioner O'Brien stated the Board vacated some of the rights-of-way on the old Pineda Extension. Chairman Higgs stated she is not sure the Board did that. Commissioner Carlson stated that item will come before the Board on April 18, 2000, and there will be ample time to discuss all the details.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY EASEMENTS IN VIERA NORTH PUD, PARCEL K-2 - THE VIERA COMPANY

Chairman Higgs called for the public hearing to consider a resolution vacating public utility easements in Viera North PUD, Parcel K-2 as petitioned by The Viera Company.

There being no comments or objections heard, motion was made by Commissioner Carlson, seconded by Commissioner Voltz, to adopt Resolution vacating public utility easements in Viera North PUD, Parcel K-2 as petitioned by The Viera Company. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING RIGHT-OF-WAY IN IDLEWYLDE ESTATES - MICHAEL HOWARD

Chairman Higgs called for the public hearing to consider a resolution vacating right-of-way in Idlewylde Estates as petitioned by Michael Howard.

Commissioner Voltz stated she met with the applicant as well as the residents; there was an issue about FP&L having access; and FP&L will have an easement. She stated the applicant has said that he will leave ten feet along the back of the property.

There being no further comments or objections, motion was made by Commissioner Voltz, seconded by Commissioner O'Brien, to adopt a Resolution vacating right-of-way in Idlewylde Estates as petitioned by Michael Howard. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 22, ADDING ARTICLE VIII, FENCE CONSTRUCTION

Chairman Higgs called for the public hearing to consider an ordinance amending Chapter 22, adding Article VIII, Fence Construction.

Permitting and Enforcement Director Billy Osborne stated the ordinance is to require a permit for construction of a fence and a modest permit fee for review and inspection of the fence based on several things that have occurred in the past that indicate the need for a permit.

Chairman Higgs stated there were certain areas the Board got on a replacement page that exempted certain types of agricultural properties and other large properties.

Commissioner Carlson read aloud from Section 7 concerning fence height; and requested an explanation. She stated if one side brought in fill dirt, how would the lowest grade be defined; and inquired how it would solve the problem in her District. Mr. Osborne responded last year they measured from the established elevation; but the proposed ordinance is saying if there are two elevations, one high and one low, it will be measured from the lowest elevation to the top of the fence. Commissioner Carlson inquired what if there is a higher elevation on one side and a lower one on the other; with Mr. Osborne responding it will eliminate the fence being 8 feet tall. Commissioner Carlson stated on the side with the lower elevation, it will be a tall fence, but on the other side there will be a shorter fence from that perspective; and inquired what if someone wants to have dogs but has only a three-foot fence on their side, and a six-foot fence on the other side due to the difference of elevation. Mr. Osborne stated they will probably have to ask for a variance in that situation. Commissioner Carlson inquired if the ordinance is really solving a problem with the fence height. Mr. Osborne responded the ordinance is not intended to address the fence height; it has already been addressed in another Ordinance related to zoning; and the ordinance before the Board is only to address the need for a permit to construct a fence.

Commissioner O'Brien stated he has a few problems with the ordinance; in Section 4, it says the utilization or installation of barbed wire, razor tape, and/or razor wire and concertina barbed wire for fencing, partitions, or obstacles is prohibited for residential fencing; and inquired why that is included. Mr. Osborne responded he cannot think of a specific instance that may have occurred, but it prevents the installation of barbed wire across the top of a fence. Commissioner O'Brien inquired why is the Board saying that; and stated if there is liability to the homeowner, it is his liability. Mr. Osborne stated the reason it was included was to address a health and safety issue that may occur as a result of that. Commissioner O'Brien stated the health and safety issue would go back to the homeowner, not the Board; if it is against the law, he does not think the Board is going to catch him putting barbed wire across the back fence; and if some child crawls across the fence and gets scratched or cut from the barbed wire, the homeowner will be sued. Mr. Osborne stated it was a safety concern, but if the Board chooses, it can be eliminated. Commissioner O'Brien inquired about a single-family residence on agriculture or a large parcel; with Chairman Higgs advising of the exemptions for AU, GU, RR-1, AGR, PA, REU and SEU. Commissioner Scarborough inquired if Commissioner O'Brien would prefer to specifically use an acreage. Commissioner O'Brien stated he does not know why it is included; and inquired if someone puts up barbed wire, is the County going to arrest them. He stated the law speaks for itself; if someone has barbed wire, he expects someone to get hurt entering the property; and if they accidentally do this, the owner will end up being sued, so people who have any kind of thought process will not be putting up concertina wire.

Chairman Higgs stated it is a safety and aesthetic issue; and the questions have arisen generally in RU-1-7, RU-1-9 and RU-1-11.

Commissioner O'Brien stated Section 5 says it shall be unlawful to construct or perform any major repair on any fence in unincorporated areas of Brevard County without first obtaining a construction permit; and it further says that the exact location of the fence and the proposed height shall be indicated on a copy of boundary survey submitted to the Building Official for approval, and that the type of materials to be used and construction details must be submitted. He stated people should have a right to put up a fence in their yard; and he does not think people should be charged $39 to put up a fence. He stated this borderlines on government intrusion and is an insult to the people of the County. He stated if someone has a wood fence that is blown down in a storm, it will be necessary to pay for another permit.

Commissioner Voltz stated she disagrees; all the cities have fence permits; and commented on how fence companies put up fences. She stated if the County does not require this, people will be putting fences on their neighbor's property. She stated she had fences installed at every house she has lived in for the past 21 years, and pays for fence permits; and it is not a big deal.

Commissioner O'Brien stated government keeps charging; and if a fence company puts a fence on the neighbor's property, that is between the fence company, the neighbor, and the owner; and the fence company will come back and move that fence.

Commissioner Carlson stated she agrees with Commissioner Voltz; there are fence issues in her District; and the ordinance will provide some means of oversight to protect all residents' property rights.

Charles Moehle, representing Modern, Inc., stated he has no problem with the proposed ordinance unless there have been changes in the exemptions from what was advertised in the newspaper, and approved at the meeting on January 25, 2000.

Commissioner Scarborough commented on anomalies where someone has a number of parcels together; and stated it may be beneficial to meet Commissioner O'Brien's concern by saying, "and any parcel in excess of a half-acre."

Commissioner Voltz stated she does not understand Mr. Moehle's issue. Mr. Moehle stated the issue was the exemption that has to do with agriculture and the onerous obligations that Chapter 588, Florida Statutes puts on people who have livestock; and it is mentioned in the exception portion. He stated the intent was never to affect agriculture uses as it is an urban residential problem; but wording was included after January 25, 2000; and taken out yesterday; so he has no problem unless there is intention to change that.

Commissioner Scarborough stated the Board may want to look at size regardless of zoning. He stated a lot of times the County wants to have someone pull another permit; but inquired if the Board wants everyone who has storm damage to a fence during a hurricane to have to come in for a permit. He stated people will be repairing roofs and other damage to the home, and do not have to get permits for that; with Chairman Higgs advising they do. County Manager Tom Jenkins stated a permit is required if it is a major repair, but not if someone is replacing a few shingles. Commissioner Voltz suggested the Board could waive all permits if there is some disaster.

Commissioner Scarborough suggested including, "except in the event of natural disasters." Chairman Higgs inquired if Commissioner Scarborough means for repairs; with Commissioner Scarborough responding affirmatively. Chairman Higgs inquired if the Board can make a blanket statement like that; with Mr. Knox responding the Board can if there is a an emergency situation or natural disaster. Mr. Jenkins stated someone will need to determine when it is a natural disaster. Chairman Higgs suggested "consistent with a state of emergency declared by the Governor and the County." Commissioner Scarborough suggested listening to some of the things Commissioner O'Brien has to suggest; and the last thing the Board wants to do is have to put extra people in the fence permitting department because of the demand for fence permits. He noted there is not always a survey; and this could be compelling people to get a survey just to put up a fence. He stated having the survey is one thing, but placing the fence on the property is another; to have that type of survey is going to be a financial burden; but it is the only thing of any merit in avoiding an encroachment. He suggested wording indicating the approximate distance from the property line where the fence will be located.

Commissioner O'Brien commented on the cost of the permit fee and survey; and stated the Board is adding a cost burden to putting up a simple fence; and it is inappropriate. He stated just because municipalities have permits for everything does not mean that the County has to mimic their behavior; and he cannot support the proposed ordinance.

Commissioner Carlson stated oversight is the cost of staff to go out to a site numerous times; and inquired if a cost analysis has been done. She stated she cannot imagine the cost to the County for the ongoing problem in her District; and if there had been oversight at the beginning, none of it would have happened so $34 is a minimal fee. She stated some residents may need to get a survey, but if they really want the fence, and are willing to put the thousands of dollars into a fence, they will take the extra step. She stated oversight is crucial; the County is not getting reimbursement for the time in the field; and $34 is low compared to the municipalities and other counties. Commissioner Voltz stated any time she has had a fence put in, the survey has been included in the price of the fence. Commissioner O'Brien stated a lot of people install their own fences; and they will have to drive all the way to Viera to get a permit. He commented on the movie "Jack Bull" where a permit was required to cross a fence. He stated the idea that citizens have to get a permit to put up a fence is offensive; he will not support it; and the County does not need fence police.

Chairman Higgs inquired if the requirement for the survey could be met by the survey that is part of the closing documents; with Mr. Osborne responding all they are asking for is a copy of the boundary survey. Chairman Higgs stated everyone would have that as part of their closing documents, so the County is not asking for a new survey. Commissioner O'Brien inquired if Commissioner Higgs could find the survey to her house right now; with Commissioner Higgs and Commissioner Voltz responding they could. Commissioner O'Brien stated he bought his house 11 years ago, and could not possibly tell where his boundary survey is; with Chairman Higgs advising Mrs. O'Brien probably could.

Commissioner Scarborough stated the County will get the survey showing the fence along three sides of the property; the permit will then be issued; and inquired if it will be inspected after it is installed; with Mr. Osborne responding yes, once the fence is installed, the homeowner will contact the Building Department. Commissioner Scarborough stated if the property is not staked by a surveyor, having a piece of paper does not allow someone to tell where the paper meets the land; and inquired how will that be handled; with Mr. Osborne responding the County is not requiring an as built. Commissioner Scarborough stated if the intent is to prevent encroachments, having the piece of paper will not prevent that. He stated the ordinance may not handle every neighborhood dispute, but hopefully it will prevent any gross encroachments which would cause much more problems; $34 may sound like a lot of money, but there can be bitter fights over fences; and if the permit keeps neighbors in line with where their boundaries are, it is very little to pay.

Chairman Higgs suggested, in dealing with the concern over the state of emergency, adding into Section 5, Section 22-705, language that says, "permits for repairs to fences shall be waived during and within 90 days of a declared state of emergency." Commissioner Scarborough stated he likes that; and in Section 9 parcels should be exempted out based on size. He stated in Port St. John, a person could put together a number of lots to where it almost becomes a different nature of property. Commissioner Higgs inquired how large. Commissioner Carlson stated she is not sure she understands. Commissioner Scarborough stated maybe because it is in a residential neighborhood, the Board would still want it because the adjoining properties are small. He stated if a person does not have a survey or has lost the survey, can there be something less that would satisfy staff; with Mr. Osborne responding if they can show the exact location of the fence, staff can work with the resident. Commissioner Scarborough suggested adding language to address that. Chairman Higgs stated if a neighbor had a survey, it would show the property line; with Commissioner Scarborough responding on one side perhaps. Commissioner Voltz stated the Board is making it more complicated than it really is. Commissioner Scarborough suggested adding, "or other evidence of the property line sufficient to satisfy the issuing agency." Mr. Knox stated that language is good. Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to adopt an Ordinance amending Chapter 22, adding Article VIII, Fence Construction, Code of Brevard County, Florida; establishing the intent; providing for definitions; establishing the type of fences permitted; prohibiting the use of certain wire; establishing the requirement of a construction permit for fences within the unincorporated areas of Brevard County; the requirements for permit issuance; establishing fence height; providing for existing fences; establishing a fence permit fee; establishing permit fee revisions; providing for exemptions; providing severability; and providing an effective date, as amended to add language providing permits for repairs to fences shall be waived during and within 90 days of a declared state of emergency, and language providing that a survey other evidence of the property line deemed sufficient by the permitting agency may be used.

Commissioner O'Brien stated this is government again making more laws, more rules, and more regulations that are not required; and charging $34 for someone to put up a fence in their back yard is an affront to the people of the County. He stated the Board should be reducing government, not increasing it.

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

PUBLIC HEARING, RE: ORDINANCE CREATING ARTICLE III, CHAPTER 26, MOTOR VEHICLE TITLE LOANS

Chairman Higgs called for the public hearing to consider an ordinance creating Article III, Chapter 26, Motor Vehicle Title Loans.

Mark Ivester, representing Florida Credit Unit League, advised of the formation of the first credit union in New Hampshire in the early part of the 20th century; requested the Board adopt the proposed ordinance; and stated it is the minimum level of protection that can be afforded to consumers. He stated they are also advocating a Statewide law to the Legislature which would bring regulation to this industry as it would put the title loan industry under the regulation of the Department of Banking and Finance.

Chairman Higgs inquired is an application fee or recording fee taken for a loan at a credit union or other banking institution; with Mr. Ivester responding with him today are Dave Brock, President and CEO of the Community Educators Credit Union and Jim Wybert, Senior Vice President and Chief Financial Officer, and the answer at their credit union is no. He stated he does not know of any credit unions that take such fees; credit unions have been compared to banks, but they are not banks; and explained the difference. He advised credit unions make loans; and he does not know of any credit union that does not make a loan as low as $300, and very few do not make loans as low as $100. He noted they are not the only alternative to title loans, but they are an alternative.

Commissioner Carlson inquired how do the credit unions advertise and how accessible are the loans. Mr. Ivester stated they would need to join the credit union, meeting the membership requirements which vary. He stated if someone lives and works in Brevard County, they are eligible to join Community Educators Credit Union in Brevard County, and they need to have an account with a balance of $25.

Paul Levy stated of the 67 counties in Florida, 35 have done nothing and 32 have passed Ordinances; and advised of the provisions of Ordinances adopted in other counties, including Okeechobee and Pasco Counties. He explained the check cashing business and the limits placed on the dealers; and stated the same thing happened to the title loan businesses. He stated every loan costs $53, $28.50 plus doc stamps; inquired how he can loan a man $100 and only get 75 cents; and advised there is no way to stay in business. He stated people need the title loan industry; and submitted paperwork from users of his business. He stated he charges 8%; the average loan is $300; and with the $53 of cost, they end up making $30. He stated in the ordinance, there is language about not taking partial payments; but they have always taken partial payments. He stated the only alternative the people will have is to go to a pawn shop; and outlined the In going to a pawn shop including interest of 25% per month and loss of a person's vehicle. He stated the Board has to give an alternative to those who have no other alternative; and displayed his ad in the telephone book. He commented on length of loans, satisfaction of his customers, and costs to extend loans at banks. He stated the Legislature is looking at a bill to regulate auto title loans; and requested the Board wait for the Legislature to set a fair rate.

Rosemary Castronovo advised she has been employed in the auto title business for six years; and most of their customers cannot qualify for any other type of loan. She commented on length of loans, clientele, and payment plans. She submitted petitions saying there is a need for the industry; and if the Board is going to regulate the industry, it should make it fair.

Jeff Harnch, Vice President of All American Titles, stated he does business in the proper fashion; he has 15 stores; and recommended the Board let the Legislature decide what is fair.

Chairman Higgs stated there is one provision in the St. Johns County Ordinance that allows the collection of any fees or taxes paid to a State agency to be charge directly to the individual title loan transaction; and inquired how much is the recording fee. Mr. Harnch responded depending on the County, it is $28.25 or $28.75 for a lien. Chairman Higgs inquired if Mr. Harnch collects that upfront; with Mr. Harnch responding no, it is rolled into the loan.

Commissioner O'Brien requested Chairman Higgs clarify her question. Chairman Higgs stated it was explained to her that when the loans are made, on the front end there is a cost to the people doing business to record that loan; and in the St. Johns Ordinance they allow that amount to be collected from the borrower, and paid in addition to the interest rate. Commissioner Scarborough advised of an example. Chairman Higgs stated the language in St. Johns County Ordinance is "that it may be collected from the borrower, and may be in addition to the permitted fee."

Benjamin Ochshorn, representing Florida Legal Services, stated he represents low income people in the County and works with Brevard County Legal Aid and Central Florida Legal Services. He stated his clients strongly request the Board adopt the ordinance; and explained how title loans may ruin people's lives. He outlined various alternatives to title loans including credit unions, small banks, aid programs, and friends and family; and explained how drug companies fund prescription drug programs for indigents. He advised of the history of title loans in Florida; and commented on the language in St. Johns County Ordinance. He commented on lack of need for additional upfront charges for recording and 30% rate; and requested the Board adopt the rate of 30% per year. He stated those people who want to make loans will stay in business; but those people who want to take people's cars will stop doing that; and urged the Board to adopt the ordinance.

Commissioner Scarborough inquired if the Board's ordinance is similar to most of the Ordinances in the State, and if not, how is it different. Mr. Ochshorn stated it is very similar to the Ordinances adopted by 31 other counties; a few go in at 18%; Charlotte County went in at 6% a month instead of 2.5%; but all the rest are 30% a year with the same provisions. He stated the smaller counties do not have licensing and regulation, but otherwise they are very similar. Commissioner Scarborough stated a closing cost is a cost of the transaction, and does not equate to interest; and inquired, as currently written, would the ordinance allow someone to say this is a cost of the transaction and not legitimate interest, because interest has to accrue to the benefit of the lender. Mr. Ochshorn stated title loans are much simpler than other forms of loans where it might be necessary to record something; and it is as simple as handing someone your car title, and them giving you money. Chairman Higgs inquired if they are recorded; with Mr. Ochshorn responding there is no requirement or business necessity to record the loans. Mr. Ochshorn stated where liens are recorded, they often result in injury to the consumer because sometimes when the liens are paid, they are not removed.

Bob Jesperson stated when he appeared before the Board in July, 1999, he read a 637-word statement; and recommended the Board adopt the ordinance.

Judy Cascone, Vice President of Operations for Speedee Cash, stated they are a title loan company in Florida and seven other states; lies have been told because people do not understand the title loan business or what it takes to operate such a business; and the businesses will not be able to operate if the Board adopts a 30% ordinance. She advised her company no longer operates in counties that have passed a 30% Ordinance; and advised of the costs involved in the title loan business. She read aloud a letter concerning repossession of cars and a bid of $1,100 for 19 cars; and stated they average repossessing 1.5 cars per month in Brevard County. She advised of operations in other states, audits, Title Loan Statute, and customer fraud.

Chairman Higgs inquired if Speedee Cash records liens; with Ms. Cascone responding only if it is over $700, which is rare. Chairman Higgs inquired what is the cost to record the lien; with Ms. Cascone responding depending on the county from $28 to $36, and the liens are released when the customers pay off the loan.

Jacqueline Dowd, Assistant Attorney General, urged the Board to adopt the proposed ordinance; advised of protection to consumers; and distributed maps to the Board. She stated 30 counties have passed Ordinances at 30% or less; they represent approximately three-fourths of the population of the State; an ordinance is pending in Pinellas County; and Brevard and Pinellas are the last two large counties that have not joined the Statewide consensus. She commented on role of government in protecting consumers, unconscionable rates, and experience of Leon County. She stated the Board has been asked to let the Legislature decide, but in this situation where so many local governments have stepped forward, it is important to join that effort in providing consumer protection against price gouging.

Commissioner Scarborough stated the laws have dealt with usury from medieval times, and inquired why is there this exception in Florida law. Ms. Dowd advised the Legislature carved out an exception to the usury Statute allowing 264% a year; they were told a lot of things that were not true; some Legislators will tell you they understand, but as time goes on, that becomes less convincing; and there are a lot of exceptions to the usury law which makes it difficult to enforce. Commissioner Scarborough inquired if there are any others with interest as large as the title loan industry; with Commissioner Voltz responding pawn shops, and inquired how they get away with it. Ms. Dowd responded she does not know how that was passed, but it has been on the books for a long time; and outlined the differences between pawn shops and title loan businesses. Chairman Higgs stated the ordinance, if passed, will be effective upon filing with the Secretary of State; and inquired if Ms. Dowd has dealt with the issue of effective dates. Ms. Dowd responded several of the counties have delayed the effective date of their Ordinances for periods ranging from 30 days to a sliding scale of 30 days for every $500 of the loan; and the idea behind postponing the effective date is to put the title loan companies on notice and to give consumers the opportunity to make alternative arrangements. Chairman Higgs inquired is 30 days standard; with Assistant County Attorney Kim Brautigam stating the proposed ordinance provides for a 90-day transition period after the effective date. Commissioner Scarborough inquired is that what most counties used; with Ms. Brautigam responding it varies, but 90 days is a reasonable period of time. Commissioner Carlson requested Ms. Dowd describe the legislation that is under consideration and if it encompasses other lenders such as pawn shops. Ms. Dowd stated the Fair Accountability And Interest Rate Act Of 2000 has been introduced in the Legislature; they are hopeful that this will become law; it will apply to title loan and payday lenders; and advised of the provisions of the Act. She stated there are several other proposals which apply specifically to title loans. Commissioner Voltz inquired about people who have multiple titles to their vehicles; with Ms. Dowd stating the person is committing fraud, and should be referred to the State Attorney's office. Commissioner Scarborough stated if someone has a duplicate title, it should put the title loan lender on notice.

Ann Stacer commented on the predatory interest rates charged by the title loan industry, alternatives to title loans, and taking advantage of the misfortune of people. She requested the Board adopt the proposed ordinance.

John Anderson, AARP, submitted paperwork; and stated AARP has made predatory lending one of its major issues this year. He advised of visits to the Governor's office to discuss initiatives and planned trips to Tallahassee. He stated this is an intergenerational issue; they would like to see the ordinance adopted at 18%, although 30% is a beginning; and commented on the history of the title loan industry. He commented on becoming wealthy from the poor, fighting the title loan industry, and involvement of the Pentagon; and stated AARP supports the passage of the proposed ordinance as a first step.

Maureen Rupe recommended the Board adopt the proposed ordinance.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to adopt an Ordinance creating Article III, Chapter 26, of the Brevard County Code entitled "Motor Vehicle Loans" in order to regulate the motor vehicle title loan business in Brevard County; providing definitions; providing conditions for engaging in motor vehicle title loan transactions; providing for maximum interest rates, transaction satisfaction and default; providing for violations, penalties and enforcement; providing for a transition period; providing for an area embraced; providing for severability; providing for codification; and providing an effective date.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to amend the motion reducing the rate to 18%.

Chairman Higgs stated she will support the ordinance as proposed at 30%; that is a considerable step forward; the Legislature is going to act; and 12 of the 15 cities have supported the ordinance as drafted.

Chairman Higgs called for a vote on the amendment to 18%. Motion carried and ordered. Commissioners Scarborough, O'Brien, and Carlson voted aye; Commissioners Higgs and Voltz voted nay.

Commissioner Voltz inquired about the cost to do business. Paul Levy responded they have to pay the registration, documentary stamps and tangible tax; the law says they must use a State licensed repossesser, and the charge is between $150 and $200; and the law says the vehicle must be sold to a dealer. He stated they have to have the lien recorded; they have to give the title back within 30 days and release the lien; and the only protection is that it is registered. Commissioner Voltz stated another lender said they do not register liens under $700. Mr. Levy stated the law says they have to do that; it does not pay to do it on a $200 to $300 loan; but anything higher than that, they must put a lien on it to protect themselves. Commissioner Voltz stated she does not want to wait for the Legislature.

Chairman Higgs stated 12 of the 15 municipalities responded; and inquired if the ordinance is drafted to be Countywide; with County Attorney Scott Knox responding that is correct.

Chairman Higgs called for a vote on the motion as amended. Motion carried and ordered unanimously.

The meeting recessed at 11:05 a.m. and reconvened at 11:19 a.m.

APPROVAL OF POLICY, RE: PROHIBITING SMOKING AT BREVARD COUNTY YOUTH ATHLETIC FACILITIES

Commissioner Scarborough requested Mr. Nelson explain the item. Parks and Recreation Director Charles Nelson stated Charles Kinker made a presentation before the Board related to smoking at County youth facilities; there were concerns about subjecting others to smoke; and in the case of Mr. Kinker, his grandson is subject to asthma attacks which could be triggered by smoking. He stated they took the item to each of the four advisory boards to come up with a policy to present to the Board; each of the advisory boards unanimously approved a smoking policy which will allow for non-smoking areas in most of the customary spectator areas; and in Little League baseball, smoking will not be permitted in the area from first base to third base, including behind home plate, in the concession areas, and on the fields. He stated there will be other areas where people can see the game and will be permitted to smoke. He noted this protects the non-smokers as well as the children from the effects of the smoke; and it was approved unanimously. He stated if the Board approves this, signage will be posted; they have contacted the majority of the user groups that will be affected by this; and there has been universal support.

Commissioner Voltz stated having a designated smoking area at the Little League ball park is ridiculous, and if people need to smoke, they can go to their cars for a cigarette. Mr. Nelson stated the areas for Little League baseball would be in the outfield, away from all the spectator areas; the people will still be able to see the game, but they will not be impacting the majority of the users; and there are no bleachers in the youth facilities beyond those locations, so anyone who sits in the bleachers is protected from smoke. He stated it does not take away the right to smoke entirely, but restricts the areas where they can smoke.

Commissioner Carlson stated Sally Byers of Merritt Island contacted her office; she is upset because the way the issue of tobacco is taught in school is that it is a drug; the Board should not set any double standard by setting aside an area; and if people want to smoke, they should go to their cars, away from the children. She stated if the Board cannot agree to do that, the signage should include the Surgeon General's warning to remind the parents that it is not a good example to be setting.

Commissioner O'Brien stated he agrees to a certain extent; but for adults who smoke, it would be appropriate to give them an area to smoke beyond the dugouts. He stated nine innings can be a long time; and they should not have to go sit in their cars to smoke. He stated the signage sounds good.

Commissioner Voltz stated the message is telling the children it is not okay to smoke in one area, but it is fine to do it in another area; and the Board should not be sending that message because it is not fine to smoke.

Commissioner Carlson stated the compromise is to put the Surgeon General's message on the signage; and if children question it, parents can explain it.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to approve a policy for the prohibition of smoking at Brevard County youth athletic facilities with a designated smoking area to be established away from seating and concession areas and signage to include the Surgeon General's warning.

Commissioner Scarborough inquired if any of the advisory boards discussed having no posted area for smoking; with Mr. Nelson responding it was discussed. Mr. Nelson stated members of all the youth organizations smoke; smoking is not illegal for an adult, although it does send a contradictory message to children; and there was concern that if there were no reasonable provisions for smoking areas, then many of the volunteers would drop out.

Chairman Higgs called for a vote on the motion. Motion carried and ordered unanimously.

DISCUSSION, RE: CHARTER AMENDMENT REFERENDUM

County Attorney Scott Knox stated the issue arose in the context of an opinion that was requested regarding the validity of the Charter amendments; his opinion was that the MSTU amendment and bond referendum requirement were probably invalid under State law, and the term limit requirement was okay, but there was a problem with the ballot language; and the Board requested a second opinion after the court proceeding, where the Judge said the Board had the ability to make the decision on validity. He stated they talked to Mr. Watts, who drafted the original Charter and has a lot of charter experience throughout the State; and he returned his opinion, which is what is before the Board. He stated Mr. Watts agreed with the County Attorney's Office with the exception of the bond referendum amendment; Mr. Watts believes that to be a valid provision; and he continues to disagree on that. He stated as the Board requested, this has been brought back for a decision on whether to place the amendments on the ballot or reject them.

Floyd Rogers commented on his concern about the word "inconsistency"; read aloud the definition from Black's Law; and stated it is not the case in their initiative. He stated regarding term limits, 5.1.2 of the Charter applies without question; and it cannot be changed without voter approval. He stated this is the citizens' initiative, not the Board's initiative; the Board cannot do anything with something the citizens have created under the Charter; and it cannot change the words. He stated in terms of the MSTU proposal, it has to be voted on by the voters in that particular area; and Chapter 125.0101 Florida Statutes, paragraph 5 states, "this section does not apply to Charter counties." He stated somewhere along the line, someone has missed something here. He stated in terms of the borrowing proposal, when Chapter 101.161, Florida Statutes is used, it relates to ballot language only, and has nothing to do with the initiative. He stated there are a lot of words, but they do not apply to the Charter. He read aloud from Chapter 125.01(3)(b), "the provisions shall be liberally construed in order to effectively carry out the purpose of the section, and to secure for the counties the broad exercise of Home Rule powers authorized by the State Constitution." He stated all the Board is doing is throwing roadblocks and legalese into the situation. He stated Chapter 125.62, paragraph 2, Florida Statutes provides for dissolution of Commission; and everything he has seen from Mr. Watts and Mr. Knox indicates that someone has missed the boat for the people in this County. He inquired is the Charter going to rule; and stated he does not see any inconsistencies with law. He stated all of the opinions of the Commissioners, the attorneys, and the public officials are not the law in this County; the Charter and the people's wishes, under Home Rule, are the law; the Commissioners are no longer the kings and queens, but part of the masses under the Charter; and they need to start performing that way. He stated the Charter has changed everything; and the people better start getting more consideration because there will be more problems later with this issue.

Chairman Higgs requested Mr. Knox respond to the legal issues as they come up. County Attorney Scott Knox advised there is a Charter form of government in the County; the Charter, by Florida Constitutional provisions, cannot be inconsistent with General Law or the Constitution; and the issue that has been raised is whether some of the provisions that have been proposed by petition are inconsistent. He stated in his and Mr. Watt's opinions, with the exception of the bond referendum, the MSTU provision is inconsistent because there is a provision that says it is possible to have an MSTU created without a referendum; it is right in the law; and it is clearly inconsistent. He stated the problem the Board has been wrestling with is how to get the determination made that something is inconsistent with General Law when it is brought forward by petition; the Board represents 450,000 to 500,000 people; and the Board has to make that decision in some context. He stated they attempted to go to court to get that determined, but the court said the Board has to make the initial determination. He stated the Board has to look at the issues on behalf of the other people who did not sign the petition and come to some conclusion as to whether they are valid or invalid. He stated if there is a constitutional provision saying that a law cannot be enacted in the County that is inconsistent with the General Law or with the Constitution, somebody has to make that decision; and the Board cannot just put things in the Charter that are inconsistent with General Law. Chairman Higgs requested clarification on the issue of ballot language versus the initiative. Mr. Knox stated Section 101.161, Florida Statute says that each referendum item that goes before the public for a vote has to have a ballot summary consistent of 75 words of less, describing what it is that is being voted on. He stated the amendments that are proposed to the Board in petition format are too long to put on the ballot, so it is necessary to have summaries to indicate what is in the amendments. He stated one of the things the Board has to comply with, in order to have a properly worded ballot summary, is to have people put on notice of what they are voting on; and if that is not done properly, it can invalidate the election or amendment. He stated the Board has to wrestle with the issue because it is not set up in the Charter or anywhere else how to deal with the issue and who determines whether the ballot summary is appropriate. He stated that issue was brought to the judge, who advised that is a decision the Board must make. He stated this is why he and Mr. Watts looked at the issue of the ballot summaries to see if they were valid and whether they describe what is to be voted upon; they have opined that the referendum language has a problem; and although Mr. Watts believes the amendment is valid under State law, he had a problem with the ballot summary.

Commissioner Carlson stated the Charter stipulates, in regard to filing of petitions, that they have to be legal and constitutional. Mr. Knox stated the Charter language has a petition process set forth; it says that petitions can be initiated by citizens to propose Charter amendments, but only those amendments that are not inconsistent with General Law can be considered for the ballot; and that is the issue the court has put back on the Board to decide. Commissioner Carlson inquired, as a citizen initiative, where does the burden of proof lie. Mr. Knox stated it is up to the Board to decide whether the citizens' initiative meets that standard, and whether it is inconsistent with General Law; the Charter also allows the Board to vote four to one to put its own initiatives on the ballot; and one way the Board can deal with something that may be inconsistent or have a problem with ballot language is to modify it. Commissioner Voltz stated the Board would have to reject it, and rewrite its own language. Mr. Knox stated if the Board decides there is an inconsistency with the State law or that the ballot summary is insufficient, that is the answer, to reject it as presented, and modify it to conform. Commissioner Voltz stated the Board cannot change the language of the citizens; with Mr. Knox responding no, the Board cannot do that. Chairman Higgs stated if the Board changes the language, it becomes Board language which would require a four to one vote to move forward.

Charles Moehle stated the government exists under law that is provided by the Constitution and Amendments, the Bill of Rights, and the republican form of government; the Commissioners have taken an oath to uphold those things; the citizens have a right to petition for government reform; and 16,000 people did so and deserve to have the issue decided at the ballot box. He stated the County Attorney's letter to Charles Watts was biased against the proposed Charter amendments; in spite of that Mr. Watts found that two amendments conformed to State law and were constitutional; and they should be put on the ballot. He stated the Board should not continue to defy the constituency; and those who continue to keep their constituents from the ability to petition their government do not intend to acknowledge their oaths to uphold the law, and are therefore outlaws who the public will eventually deal with. He commented on the individual amendments; and recommended the first two be put on the ballot as petitioned. He stated the spirit of the MSTU amendment should be adhered to; if the Board wants to propose new language to allow the principle the people have petitioned for, it would be responsible to do that; but he believes it should be put on the ballot as is, and the court, which has ultimate authority, can deal with it. He stated right now there is no way to go to the court; and all the Board is doing is making its opinions known. He commented on the lack of notice that this issue was coming before the Board. He stated the term limits were never intended to include the constitutional officers; and that should not be included in any language.

Maureen Rupe stated some people do not understand that the Board is required to make sure that the amendments are consistent with State law before they are put on the ballot; and she would prefer the term limit amendment be put on the ballot as written, but prospective without the constitutional officers. She stated she is concerned that the Board may have already put amendments on the ballot that have passed, but may be illegal, such as the Cap It Amendment in 1996 and the amendment sent forward by the Charter Review Commission in 1998. She noted she served on the Charter Review Commission; and in January, 1998 the Charter Review Commission was assured by a subcommittee consisting of Mr. Sterling and Mr. Notary that all three of the proposals from Mr. Jim Ford, including the one in question today, had been researched and found to be constitutional. She recommended the Board not leave the County open to lawsuits which the taxpayer will have to finance; and stated this proves the need for judicial review. She stated she does not think option 3 for the bond issue can be considered now; and commented on the difficulty of creating a 75-word ballot summary for this issue. She commented on the cost, people being unwilling to tax themselves for needs 50 miles away, extension of other taxes, and negative scenarios. She requested the Board decline to send the amendment to ballot.

Curt Lorenc stated he has been told that some of the 16,000 signatures were gathered by telling the people that it would lower their property taxes; and that is not true. He stated some of the amendments are malicious; the term limits were targeted at two Commissioners, Commissioner Scarborough and Commissioner Higgs; and by targeting these Commissioners, it denies the residents good, competent representation on the Board. He stated the amendments were targeted to destroy the government; the intent was not good; and the Board is being asked to decide on a legal issue. He stated the amendments were not written properly; they were not clear; and the Board must look at that carefully in making a decision.

Patricia Hartman stated the Clerk's Office told her this morning that Mr. Knox put this on the Agenda a week ago; she did not find out about it until a few days ago; and she is not sure how many people found out about it ahead of time. She stated she hopes the Board had the time to read Mr. Knox's summary and recommendation and to go over the original backup materials, such as Mr. Watt's recommendations and the decision and statements by the Judge on January 7, 2000. She stated she does not see that Mr. Watt's recommendations agree with Mr. Knox; and commented on Mr. Watt's recommendations. She stated the Charter can be changed under Section 7.3 of the Charter; Mr. Knox provided several options; and she will comment on term limits. She stated option 1 is not available to the Board under the Charter; the Board may put a term limit amendment on the ballot with a four to one vote; and if it does not conflict with State law, the Board is required to put it on the ballot, as the Home Rule Charter people wrote it, in a special election. She stated the people who signed the petition thought it would be going on the March, 2000 ballot; but the Board took so much time deciding what to do with it, that there are several options if it is considered legal. She stated it may be placed on the November, 2000 ballot against the wishes of the people who thought it should go on in March, or it could go on an earlier ballot such as the September primary or an earlier special election, which would cost additional money. She stated option 2 has errors; advised of a letter to the editor dealing with prospective versus retroactive term limits; and noted the writer of the letter thought that retroactive meant that anybody who served on the Board more than eight years could be removed from the Board immediately, whereas, prospective means it would start with the effective date of the law. She stated Mr. Lorenc said he thought this was a mean-spirited bunch of laws aimed at Commissioners Higgs and Scarborough; but she does not think that is the case. She stated the citizens of the County have several ways to change the Board; there are elections every four years where Commissioners can be voted in or out of office; and there is a recall option. She commented on the effect of single-member districts; and stated another option is to have term limits. She stated she is not sure that term limits are the answer; not having single-member districts might be the better way; but the Home Rule Charter Committee wanted term limits. She stated the Charter says the Board "shall cause any Charter amendment proposed to be submitted to the electors"; it does not allow the Board to decide to do so or not; and recommended the amendments be placed on the ballot as soon as possible.

Chairman Higgs stated the speakers referenced an effective date on the term limit item that said January 1, but she does not remember seeing a date in the Charter. Mr. Knox stated he has never seen an effective date of January 1 on any Charter amendment. Chairman Higgs inquired when it would go into effect; with Mr. Knox responding once the election result is certified.

Commissioner Scarborough stated Mr. Moehle raised the question about whether everyone has been given the opportunity to speak; and inquired what would be the harm of continuing the item so everyone who may have an interest has an opportunity to speak; with Mr. Knox advising there is no problem with that. Chairman Higgs inquired if Commissioner Scarborough believes there was not proper notice; with Commissioner Scarborough responding the Board wants to be sure people who have an interest in the issue have an opportunity to speak; and if there is not a requirement that the Board move today, then this could be continued. He stated whether the language does or does not meet the legal requirement, the Board is trying to put something on the ballot to meet the intent of the petition language; and it is a disservice not to try to make the things within the law and clear for people to understand what they are voting on.

Chairman Higgs stated the ballot language not only has to be consistent with State law and the Constitution, but it is essential it be consistent with what is in the proposed amendment; and those are two areas the Board is trying to insure are consistent. She stated the outcome of not being clear in the amendments is that there will be lack of clarity, legal challenges, and nothing will get done which will be frustrating for the people. She stated there are reasons to believe that some of the amendments may lead the Board down a path of continued legal challenge; she supports putting things on the ballot that allow people to make a decision in regard to these issues; but she has cause to believe that some are not clear, and maybe not legal to put on the ballot. She stated if they can be made clear, she will support it and the intent of what the petitioners put forward; but it needs to be defined by the Board so that what goes to the voters is clear and they know what they are voting on.

Commissioner Voltz inquired when was the item put on the Agenda; with Mr. Knox responding he put it on the Agenda either the Friday or Monday after he got it. County Manager Tom Jenkins stated his notes indicate it was sent out on February 15, 2000. Commissioner Voltz stated it would have been too late to be on the Agenda posted on the Internet; with Mr. Jenkins advising that is correct. Commissioner Scarborough suggested continuing the item for a couple of weeks. Commissioner Voltz inquired can it be put back on for public hearing. Mr. Moehle stated it should not be prolonged any longer than two weeks. Commissioner Scarborough stated that should be adequate; and now everyone knows about it.

Chairman Higgs stated at the time the Board holds the public hearing, there should be resolutions with some ballot language; and the package be together so the Board has everything it needs to make a final decision one way or the other. Commissioner Voltz recommended the public be provided with the information a week ahead of time.

Commissioner Carlson stated she will support continuing it because the public was not duly noticed. She stated Mr. Moehle wanted to know a way to get an ultimate court decision, without putting it on the ballot will create a lawsuit between the County and whoever; and another way is to deny all three amendments and go to court. She stated the Home Rule Charter people want the words of the ballot summary to go to the voters, because that is what the petitioners signed off on; if the Board changes the language to go along with the intent, it is no longer coming from the people; and that concerns her. She stated she has enough evidence to show that there are legal defects in all three amendments; and all she sees are contradictions. She stated the Board wants to give the people their say; but it owes it to the other 400,000 individuals who did not sign the petition to make it clear; and inquired if the Board alters the verbiage, will it truly be the intent. She stated she does not see herself voting in favor of putting any of them on the ballot because the policy of the Board is not to create language but to have the language come from the community or some other entity. Commissioner Voltz stated the Board has already done that; and Commissioner Carlson made the motion to put on the term limits. Commissioner Carlson stated she is listening to the people; they are saying they want their language; the 16,000 people are being used as a hammer on the Board; and since three Commissioners are running for office, it has become a political football, which is not fair to the rest of the constituents. She stated the Board owes it to all of the people, not just the 16,000, to have clarity; and commented on how those running for office have to deal with the issue at forums. She stated she would not vote to put any of the three on the ballot, and she would put the burden of proof on the Home Rule Committee.

Mr. Knox stated in order to prepare resolutions, he will need to know what the Board is going to do; and if the Board wants him to prepare contingent resolutions that guess at different alternatives the Board may come up with, he can do that. He stated the MSTU issue probably could go on the ballot if it is made a non-binding referendum. Commissioner Voltz inquired what purpose would that serve; with Chairman Higgs responding it would be a straw vote. Mr. Knox stated that is an alternative. Commissioner Voltz reiterated what purpose would it serve; with Mr. Knox responding it would not serve any purpose but to let the Board know what people think, and the Board has done that with other MSTU's. Commissioner Scarborough stated they are going to use MSTU referendums in the Fall because it is advantageous to get the communities to buy off; and the Board needs to spend some time with it and not just be reactive. Mr. Knox stated in terms of Commissioner Carlson's comments about who should be making these decisions, the Legislature can pass a law giving the circuit courts jurisdiction to determine these things before they are put on the ballot; and that may be one way. Commissioner Voltz stated that way it would not be necessary to sue someone to get it done; with Mr. Knox advising the Board would not have to sue, or if it did sue, it could be the State Attorney like it is for bond validations.

Commissioner Scarborough stated he favors rejecting what the Board is advised to reject, and then coming back with language that the Board and the community could agree is reasonable, and put it on the ballot; and there will not be a total consensus, but he would like to work to that end. He stated he would like both sides to feel they are being fair to the greater community; and just to reject and not go forward with a subsequent dialogue is not fair to the process after so much time has been put into it.

Commissioner Carlson stated that is noble, but if the individuals who signed the petition were polled to see if they truly understood the implications of the three amendments, the Board would find a very diverse understanding; and the only way to clarify that is to have the right wording to make sure people understand what they are voting on. Commissioner Voltz stated it is not for the Board to judge because the 16,000 signatures are there. Commissioner Carlson stated going to the Legislature to see how to avoid this circumstance would be a good thing to do at this juncture; but the Board is going through all these things because it is more of a political issue than something that needs to be done. She stated the Charter review is coming up; and all three of these things could be discussed by a Charter Commission.

Commissioner Voltz inquired if two weeks is enough to get clarification. Chairman Higgs stated the Board will have information by then, and it gives people sufficient time to bring forward other information.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to table discussion of the Charter Amendment referendums for two weeks to allow additional community input. Motion carried and ordered unanimously.

(Date established as March 14, 2000 later in the meeting.)

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ORDINANCE AMENDING SECTION 62-3206, TRAFFIC, PARKING AND LOADING REQUIREMENTS

Ben Graham stated he addressed the Board in March of 1999; before that he met with several Department Directors and Commissioner Higgs; and all of them agreed and understood the problem, and recommended coming to the Board. He stated they asked that the Code be modified to the extent that existing structures would be required to undergo site plan review for adherence to the Codes in effect when use or ownership changes; there was a sense that the Board agreed to that; and he was disappointed that it was not included in the amendment. He stated he called Bruce Moia to ask about it; Mr. Moia advised it would be before the Board next month, but then said it would have to go through channels; and he is requesting this be done more quickly as they have been already waiting for a year. He stated any person or company who goes into business is seeking to make a profit from it; and the more convenient the business can be made to the public, the more business and profit it should make. He stated health, safety, welfare and convenience of the citizens should come first; there should be more room for ingress and egress and more parking spaces; and maneuvering on property safely is most important. He stated it is vital that all unloading be done on the side or rear of the premises even if it requires a larger tract of land; and no exceptions should be made. He reiterated any person or company who desires to do business with the citizens should put the convenience of the citizens first regardless of cost.

Commissioner Voltz stated the proposed amendment sets forth requirements for retail uses of 5,000 square feet or less which generate 100 trips or more per 1,000 square feet; and inquired if that is per day; with County Development Engineer Bruce Moia responding it is average daily trips; there are approximately nine uses that would fall into that category; and they are generally small buildings which generate a significant amount of traffic.

Commissioner O'Brien inquired if convenience stores are 5,000 square feet; with Mr. Moia responding they are generally around 2,000 to 5,000 square feet. Commissioner O'Brien inquired what kind of store would be 5,000 square feet; with Mr. Moia responding a convenience store with gas pumps or a service station; and the language is 5,000 square feet or less. Commissioner O'Brien stated if they had more convenience, it would improve their business, and that is why it is market driven; if a convenience store always has a delivery truck at its front door blocking traffic, eventually no one will go there to buy anything; and it is not the Board's business to get into the free market fray.

Mr. Graham advised of problems with a Cumberland Farms store on the corner of Micco Road and U.S. 1 including blocking entrances to the store and parking on U.S. 1; and if a business wants to make money, they should make sure that piece of property is large enough to have deliveries at the side or rear of the building rather than bothering people who are there to give them money. Commissioner O'Brien noted the people are not giving the business money; they are purchasing their products or services; and if they want to block both entrances with their trucks, making it impossible for customers to enter the store to purchase the services or goods, that is up to them. Commissioner O'Brien stated if they are parking on U.S. 1 or in the right-of-way, that is different; but he does not think the Board should be regulating where deliveries are made. Mr. Graham stated the Code requires that they not block the ingress or egress, and that it is possible to maneuver in the parking lot with ease and safety; and commented on road rage.

Commissioner O'Brien stated he has a difficult time asking government to make more regulation on how a person conducts his business; and if someone wants to open a small convenience store with a CUP for gasoline sales, and only has space for one customer to park his car, that is up to him. Mr. Graham advised the Code requires they have enough parking spaces; but the problem is that the service trucks block the parking spaces; with Commissioner O'Brien advising that is up to them. Mr. Graham reiterated the County requires them to have parking spaces, but service people are using those parking spaces. Commissioner O'Brien stated the customers will go someplace else. Commissioner Voltz stated they will lose business.

Commissioner Voltz inquired if this whole thing is driven because of one store; with Mr. Graham responding no. Commissioner Voltz advised she has never received a phone call regarding this problem. Mr. Graham stated the Cumberland Farms store situation started it, but there are other places on U.S. 1 where cars have to back out onto U.S. 1 which is dangerous; and they see no reason why they should be allowed to have a business like that where cars are forced to back onto a main roadway. He stated businesses should have enough property so the parking does not back up to a main highway; the main thing is the safety and convenience for the people; and with the increase in population and traffic, it will get worse. Commissioner Voltz inquired if anyone has spoken to the people at the businesses advising there is difficulty getting into there; with Mr. Graham responding no. Commissioner Voltz stated she agrees with Commissioner O'Brien; this is not something the Board needs to deal with; but if the Code does not allow for these types of things to happen, then the Board needs to address it. She stated she will not support the amendment because it is not the Board's responsibility. Mr. Graham inquired if that is true with the safety aspect; with Commissioner Voltz responding these things should already be addressed at site plan stage. Permitting and Enforcement Director Billy Osborne stated it is addressed, but the amendment is not retroactive, and is for new construction. Commissioner Voltz inquired if there is nothing in the Code; with Mr. Osborne responding not for this, and the amendment is making provisions that would eliminate this problem for future construction.

Commissioner Scarborough stated all the Board is doing is moving this on to public hearing; the amendment says, "so it will not be necessary to back into a public street"; and he may not be using the store, but he does not want a big truck backing out onto U.S. 1 in front of him. He stated there is also language about parking in the right-of-way; and when trucks park in the right-of-way they block and obstruct the vision of those who are pulling out. He stated the amendment is not any more prohibitive than the Board saying if someone has so many restaurant seats, they have to have so many parking spaces because the Board does not want the patrons parking all over the place.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to grant permission to advertise a public hearing to consider an ordinance amendment Section 62-3206 relating to traffic, parking, and loading requirements..

Commissioner O'Brien stated he can understand the safety aspects of it in terms of loading facilities that make it necessary to back directly into a public street or parking in the right-of-way; however, going beyond that, the Board is overstepping its bounds. He recommended withdrawing Subsection D(12)b and c; and stated Subsection D(12)e is a safety matter. Chairman Higgs stated e is the one that deals with having to have the loading space which is the essence of what is being discussed. Commissioner O'Brien recommended the ordinance be rewritten to say, "loading facilities that make it necessary to back directly into a public street shall be prohibited"; the next sentence would be, "parking in the right-of-way shall be prohibited"; and everything else would be left alone. Commissioner Voltz inquired if that leaves out specific dimensions; with Commissioner O'Brien responding the Board should not be doing that. Commissioner Scarborough noted that is already in the Ordinance. Commissioner Carlson stated the essence of what the Board is trying to do is based on the justification for doing it in the first place which is high volumes and the safety issue related to those volumes; and if the smaller stores create the same sort of volumes, it is fair for the same sort of rules to apply. Commissioner O'Brien stated the Board should address the safety issue to prevent trucks from backing up into the street; and he does not want to go any further than that. Commissioner Voltz stated b and c are already included in the Ordinance; the Board is not even addressing them; and inquired if it comes back for public hearing, will that be fair game, or is it just the underlined part. Mr. Moia stated if the Board wants to change the language based on public input, it can be changed. Chairman Higgs stated it depends on how it is advertised. Commissioner Voltz stated the Board will look at the whole ordinance, not just the underlined areas. Mr. Moia stated the underlined language is the new language; but if the Board does not like some of the old language, it can be changed. Commissioner Voltz inquired about advertising; with County Attorney Scott Knox advising the issue is tied to the title, and if the title does not identify what the Board is trying to change, then it has to be readvertised. Commissioner Scarborough inquired if the whole thing can be advertised; with Mr. Knox responding affirmatively. Commissioner Scarborough stated that will allow Commissioner O'Brien the option to argue his deletions.

Chairman Higgs inquired if that is the intent of the motion and second; with Commissioner Scarborough and Commissioner Carlson responding affirmatively. Chairman Higgs called for a vote on the motion. Motion carried and ordered unanimously.

Chairman Higgs stated the Board will get this back as quick as it can, and notify Mr. Graham and others of that hearing.

PERMISSION TO UTILIZE CONSTRUCTION MANAGEMENT DELIVERY METHOD, AND AUTHORIZE EXECUTION OF CONTRACT, RE: CONSTRUCTION OF TITUSVILLE HOLDING CELLS

Commissioner O'Brien stated the cost is shown as $570,000 to build new holding cells at the Titusville Courthouse; that there is already a courthouse in Viera with holding cells; and as far as he knew, there were no criminal trials being held in Titusville. He stated since then he found out that there are people who come for civil matters who have to be held in a cell; there have to be certain cells for homosexuals, women, children, and men; and they are further divided into violent and non-violent people.

Commissioner Scarborough inquired if this has to be decided today; and suggested letting the County Manager confer with Commissioner O'Brien because this has been discussed over a long period of time, and Commissioner O'Brien may need to have more information on the issue.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to table permission to utilize the Construction Management Delivery Method to select a firm for construction of holding cells in Titusville until March 14, 2000; and direct staff to work with Commissioner O'Brien on the item.

Commissioner Scarborough stated there are some facts that may be persuasive. Commissioner O'Brien stated he likes to have all the facts, but this is $156 a square foot. Commissioner Scarborough stated it will have to come back to be voted on; and if Commissioner O'Brien is not persuaded otherwise, then that is his option.

Chairman Higgs called for a vote on the motion to table. Motion carried and ordered unanimously.

DISCUSSION, RE: CHARTER AMENDMENT REFERENDUM (CONTINUED)

Chairman Higgs stated previously the Board tabled consideration of the Charter Amendment referendum discussion for two weeks; it will actually be three weeks; and requested the Board clarify the motion.

Motion restated by Commissioner Scarborough, seconded by Commissioner Voltz, to table discussion of the Charter Amendment referendum to March 14, 2000 to allow additional community input. Motion carried and ordered unanimously

PUBLIC COMMENTS, RE: ANNEXATION BY CITY OF PALM BAY

Robert Doucette commented on growth of Palm Bay, GDC bankruptcy, and problems in the City of Palm Bay including shortage of police and fire services, developers being the priority rather than safety, need for roads and drainage, high cost of water and sewer connections, location of water and sewer pipes, utility customers paying twice, and traffic congestion. He suggested the Board take a strong look into the possibility of placing the County's new courthouse on the land the City has just annexed at the corner of Babcock Street and Valkaria Road. He explained the advantages of the site, and outlined the disadvantages of the "hole in the doughnut" site.

Allyn Newman advised of his personal background, the annexation of the Wilson property at the corner of Babcock Street and Valkaria Road by the City of Palm Bay, and suggested land usage of the Wilson property. He stated the Wilson property would be the ideal site for the proposed South Brevard courthouse; and explained the advantages, including location, zoning, and lack of traffic problems. He stated the Board can have an ideal site which meets the needs of the Palm Bay constituents as well as those communities further south.

Janis Walters advised of the plans for a shopping plaza with a grocery store anchor on the 20-acre property at Babcock Street and Valkaria Road; and commented on the density of Palm Bay, density of Valkaria, and lack of need for additional shopping. She stated whether the Board agrees with the courthouse proposal or not, she hopes the Board will support an appeal to DCA for a less intense and more appropriate use for the property and in the joint planning effort establish a suitable growth and development pattern for the Babcock Street corridor. She stated as a Charter County, Brevard County has the opportunity to participate in voluntary annexation procedures; and requested an amendment be developed on the issue.

Curt Lorenc advised at the Palm Bay City Council meeting, 100% of the 40 to 50 speakers were against the annexation; the Board is on the right side of this issue; and the City Council did not address the issues, but went to a quick vote which was four to one to pass the annexation. He commented on possible conflict of interest with the annexation applicant's attorney, one Council member who did work with the developer, and two Council members who took large campaign contributions from the applicant's attorney. He stated the sewer and water report said it was planned and funded, and would be done within the year; but the Utility Department did not have any plans. He requested an open discussion on the courthouse location.

Chairman Higgs stated the procedure during public comments is to take comments but take no official action. She stated the issue of the annexation and the Charter have Countywide implications.

Commissioner Scarborough stated the County Manager is doing a study on the courthouse; and inquired if it is appropriate to ask him to look at the feasibility of this location. Commissioner Voltz stated she does not know if the property is for sale; the reason the Board looked at Bayside was because of the size of the property; and the Wilson property is small in comparison.

Discussion ensued on the size of the properties.

Chairman Higgs suggested the Board take under consideration what the citizens have brought forward; and if it wishes to bring up an additional action, it can do that. She requested a memorandum on the issue of the annexation and the Charter.

PUBLIC COMMENT, RE: NORTH BREVARD HOSPITAL DISTRICT BOARD

Nelly Strickland advised of receiving smut mail; and read aloud the letter concerning her position on various actions of the North Brevard Hospital District Board, Hospital Board members, actions of Rod Baker, and alleging she sends out things anonymously. She advised she is visually handicapped; and recommended the County Manager make the facility available to all handicapped people.

Commissioner O'Brien inquired about Ms. Strickland's handicap; with Ms. Strickland advising it is macular degeneration; her fine vision is bad; and reading is difficult. Chairman Higgs stated the Board will try to work with Ms. Strickland so that it will be easier next time. Commissioner O'Brien inquired if Ms. Strickland drove to the meeting; with Ms. Strickland advising of her distance vision and driving experience.

PUBLIC COMMENT, RE: CITIZENS' RIGHTS TO PETITION THE GOVERNMENT

B. B. Nelson advised of the rights of citizens to petition the government which are provided for in the U.S. Constitution and County Charter, importance of being able to vote, and Board's denial of the right to vote. He stated if the people submit an idea, they have to figure out how to do it so it is acceptable to the Board so it will put it on the ballot; and inquired if the people submit an idea, will the Board prepare the language before they get petitions. He stated the County Attorney was requested to prepare ballot language and refused to do it without Board direction; and reiterated the Board is denying the people the right to vote. He inquired how can they get an item on the ballot without court action, and determine that the language is acceptable before they go to the trouble of getting a petition. He recommended the Board advise what the correct procedure is to get something on the ballot.

Commissioner Voltz stated the Board has to do something because it makes the Board look bad and is a slap in the face to the citizens; and suggested working together ahead of time. She stated whether they agree on the issue is not relevant. Mr. Nelson stated the issue is the right to petition and vote on it. Commissioner Voltz stated it is incumbent upon the Board to make sure that it is correct; and if they work together to make sure the language is legally correct, then that is where the Board should head. Mr. Nelson stated the Board controls the situation; but it is not going to be in control much longer if this is the way it is going to control.

Commissioner Voltz inquired if Mr. Nelson asked to have the County Attorney check on how the Board can address having an amendment to the Charter and laying out the criteria. Mr. Nelson stated the citizens do not mind the Board having a hand in preparing the petition; but they do not want to go to the trouble of petitioning again and then being slapped in the face to wait on the wording. Commissioner Voltz advised nobody disagrees with Mr. Nelson on that. Chairman Higgs stated the Board does not like being in this position. Mr. Nelson stated the recent letter to Mr. Knox to ask him to prepare a specific item for the ballot was denied because the Board did not give him direction; with Chairman Higgs and Commissioner Voltz advising that is correct. Mr. Nelson inquired if Mr. Knox is the County Attorney or the County Commission Attorney; with Chairman Higgs responding he is hired by the County Commission. County Attorney Scott Knox stated his title is County Attorney, but he works for the County Commission. Chairman Higgs inquired how could the County Attorney prepare language for every citizen unless it was at Board direction. Mr. Nelson stated the request was to prepare a petition to recall all five Commissioners; and Mr. Knox did not want to do that.

PUBLIC COMMENT, RE: FIRE TRUCKS PARKING ON BIKEPATH

Henry Campbell advised of traffic delays in Melbourne Beach; and inquired if County employees in County vehicles have an exception to the law concerning seatbelts. He commented on responsibility for maintenance of bikepaths and fire trucks parking on bikepaths. He stated he was informed that the fire trucks must be parked on pavement; the fire hydrant is at the corner of the golf course; and recommended the fire hydrant be moved in front of the fire station. He commented on how his problem with the Sheriff's vehicles parking on the bikepath was resolved.

Chairman Higgs requested Mr. Jenkins address the issue of County employees wearing seatbelts. County Manager Tom Jenkins advised County employees are supposed to wear seatbelts. Chairman Higgs requested Mr. Jenkins clarify to the employees that they are required to wear seatbelts, ask that staff do a better job of clearing the bikepath at Spessard Holland Golf Course, and look at the issue of fire trucks parking on the bikepath. Mr. Jenkins inquired if Mr. Campbell means parking in front of the fire station; with Mr. Campbell responding it is approximately 100 yards north of the fire station. Mr. Jenkins inquired why are they parking there; with Mr. Campbell responding to flush out the tank trucks. Chairman Higgs inquired if they only park there during when cleaning the tanks, and not all the time; with Mr. Campbell responding they do not park there all the time. Mr. Campbell stated there are no buildings near the hydrant; and suggested moving it 150 yards further south. Mr. Jenkins inquired if there are mobile homes in the area; with Mr. Campbell responding the only thing there is the golf course on the west side and parking on the east side.

PUBLIC COMMENT, RE: DECENTRALIZATION OF COURTHOUSE FACILITIES

Charles Moehle stated the Board went through a period of time when it centralized courthouses and hearings for the purpose of security, convenience, and cost savings; but in the last year or two, there seems to be a program of decentralizing based on convenience and cost; and now there are proposals for courthouses in Melbourne or Palm Bay and expansion of the Titusville Courthouse. He stated the County is doing a study about the locations of courthouses to get information to make a logical conclusion, but one element has been left out of the consideration, and that is the procedures that the judicial system uses in selecting where people have to go to have cases heard. He advised in civil court cases there is no consideration of where the attorneys or people are located; it is pulled out of a hat; and people in Palm Bay have to go to Titusville and people in Titusville have to go to Palm Bay. He stated now there is discussion of a courthouse in downtown Melbourne; and advised of the additional costs associated with an attorney having to go a distance to court. He stated it is the responsibility and purview of the Board to confer with the Judiciary and the Bar Association to figure out this problem which is costly and inconvenient. He stated it is putting people on roads when they do not have to be, so it is also a road cost problem; and he knows of no logical reason why this cannot be solved. He inquired if this has been included in the study and is it a priority in making the decision on location of a courthouse.

Commissioner Scarborough stated he agrees; Farm & Groves is a South Brevard issue, but was held in Titusville; and the Board can address convenience, but multiple courthouses could be more disruptive than having a centralized courthouse where everyone has to drive at least an equal distance.

Mr. Moehle stated that is his point about decentralization; the problem has not been solved; and everyone wants it in their locale, but that does not solve the problem.

Commissioner O'Brien inquired if the Board addressed this issue in the last two years; with Commissioner Scarborough responding the Board may have addressed it, but the problem is not resolved. Commissioner O'Brien stated when the Board discussed it, the Judges said they would start to look at things differently; and if they are not doing that, then this issue should be placed on the Agenda. He stated he is uncomfortable with someone from Palm Bay having to drive to Titusville for a civil matter when they could come to Viera; if another courthouse is added in Palm Bay, it would be absurd for someone from Titusville to have to drive there for a civil matter. He stated if the judges are pulling the cases out of a hat, there must be a better system; the Board should insist on a better system; and requested the County Manager put the issue on an Agenda within the next 90 days so the Board can discuss this with the Chief Judge to seek a resolution to the problem. Mr. Moehle suggested that be done before the Board decides whether to act on Mr. Nance's proposal.

Commissioner Voltz stated when the Board had a dinner meeting with the Judges, she suggested a study be done on the criminal justice system, and this would be part of that study; and the study would look at all aspects including where the system is stressed, whether it needs more court space, what is needed, and how much more efficiently the system can be run. She inquired if the judges pull the cases out of a hat. County Attorney Scott Knox responded cases are drawn on a rotation basis; the next judge in line gets the next case; and speculated that is to try to distribute the caseload evenly. Commissioner Voltz suggested splitting Titusville between Titusville and Viera and also splitting South Brevard between Palm Bay and Viera so no one from Barefoot Bay has to go all the way to Titusville. Mr. Knox advised that would take some real planning; with Commissioner Voltz advising that is what needs to happen. Chairman Higgs noted there is also the jury pool issue.

County Manager Tom Jenkins suggested, before the Board draws any conclusions, that it get a report and an explanation of what is actually done; stated Mr. Moehle made an assertion, but he does not know if it is accurate or not; and the Board should ask the court system to verify. Mr. Jenkins stated it would be prudent to have the Judiciary tell the Board how it is done. Commissioner Voltz stated she gets complaints all the time. Commissioner O'Brien stated he agrees with Mr. Jenkins; but the convenience of the citizens should be the overriding priority, not the convenience of the judges. Commissioner Scarborough commented on people having to travel from one end of the County to the other; and he is not convinced that enough has been said or done on this to fully analyze what is convenient to the public. He stated he does not know how the Board can move forward with a full courthouse discussion without answering some fundamental issues; if the majority of the civil trials will be in Melbourne, the Board needs to know how that will affect people in other areas of the County; and he does not know where this is heading, but the Board needs to understand the issues. He stated the last time the Board was working on this issue, it was under a court order; now no one is talking about Judge Chance's order or the studies that were done, so it is a new ball game; and he is unclear why the rules changed so rapidly and where the Board is headed.

Mr. Moehle commented on the inability to postpone going to court until the case can be held in a more convenient location, if that is the desire of the parties; and stated there are all kinds of things that are resource wasteful.

Commissioner O'Brien stated the County spent $18 million building the courthouse at Viera; it spent another $1 million or more restoring the Titusville Courthouse; there is another request before the Board to spend $400,000 on holding cells; and he does not like being nickel and dimed to death, which is what is happening with the court issue. He commented on costs for new furniture, telephones, and computers and expenses of the Clerk of Courts; stated now the Board is looking at building another courthouse in Melbourne or Palm Bay; and inquired if politics is driving the issue. He stated the County is getting a study; the study costs money; and inquired if anyone has thought about not spending all the money in the field and adding to the Viera Courthouse because the original study said it should be there.

Chairman Higgs stated the building considered in Palm Bay was to serve as a government center for the Constitutional Officers who are there; the concept of a judge being there is secondary to the services that need to be there, specifically the Supervisor of Elections, Property Appraiser, and Tax Collector who already have offices there in rental space; so the facility was designed to serve that need. She stated whether or not there is a court there, there is still a need to serve the Constitutional Officers and the basic needs that are outside the court system.

Commissioner Scarborough stated the Board needs to be sensitive to how it chops up the judicial activities; the original study did make a major distinction between County and Circuit courts; and there was extensive discussion about keeping County courts near the people and Circuit court in a more centralized location. He stated now there is talk about breaking civil from criminal; there was no discussion on that previously; and Mr. Jenkins received a subsequent memorandum that would require that no criminal, not even County court criminal be moved to a new Melbourne courthouse, and that it would be necessary to keep the Nieman Avenue Courthouse open for that. Mr. Jenkins advised that was the original position, but it has softened, and County court can now go there. Commissioner Scarborough commented on the size of the judicial facilities, people's court, and making decisions on regional facilities that make sense for the people.

Chairman Higgs stated there has been a great deal of controversy when the Board has talked about court facilities with holding cells; and while some people are happy to have a courthouse for civil or minor infractions, it is another story when there are holding cells. Commissioner Voltz stated she hopes all these issues will be addressed in the study; and inquired when is that coming back to the Board; with Mr. Jenkins responding in the very near future. Commissioner Scarborough suggested getting a copy of the original study as well as Judge Chance's order for the Commissioners who were not on the Board at the time. He stated the Board was criticized at the time for moving to Viera; the move was based on studies and Judge Chance's order; the Board did not just make the decision on what was going to happen; and it was the result of a protracted discussion that was not always free of hostility. Chairman Higgs stated the land donation played in the minds of many of the Commissioners in making that decision; and part of the decision was to have Circuit court at Viera and County court elsewhere. Commissioner Scarborough stated the Commissioners need to understand how the Board got to that point.

Commissioner O'Brien stated he is concerned that there are inside judicial politics about where the judges would rather be seated and have their offices; and the whole system is getting away from the Board because it is not making decisions, and is being reactive to what it is told someone wants. Commissioner Scarborough advised last time the Board was under court order. Commissioner O'Brien stated he does not want that to happen again, but this issue should not be driven to the point where the people receive a disservice by the judicial system. Chairman Higgs stated she is confident that the Board will make the decision; and that is not to say that everyone else is not going to push and pull their way; but the decision will sit with the Board.

Commissioner O'Brien expressed concern about future requests for more courthouses in other areas; and stated there is no big plan to say that Viera will be for all criminal trials and that all other facilities will meet the people's needs in civil matters. He stated right now there are criminal trials in Titusville as well as Viera; civil trials are held in both locations; and inquired if Melbourne will have holding cells because there will be criminal trials there. Mr. Jenkins advised holding cells are necessary in any facility, even for civil. Commissioner O'Brien stated any kind of a trial that requires holding cells should be held in Viera; and the Board needs to start taking a much closer look at that, the expense of what it is doing, why it is doing it, and how it is going to get there.

Commissioner Carlson recommended the study look at the issue of video conferencing.

DISCUSSION, RE: SPEAKERS GIVING HOME ADDRESSES

Commissioner O'Brien stated because the Board meetings are televised, people who come before the Board should not be asked to give their name and address. Chairman Higgs noted the Board does not ask for that. Commissioner O'Brien suggested warning people not to give their address. Chairman Higgs suggested individuals give the town they live in because sometimes people are interested in where people are from. Commissioner O'Brien advised of the dangers.

REPORT, RE: 2000 JOINT LEGISLATIVE PLATFORM

Commissioner Carlson distributed materials; stated they are to acknowledge the 2000 Joint Legislative Platform; read aloud the first sentence advocating the best form of government is that which is closest to the citizens; and stated if anyone disagrees with any of the issues, he or she may want to bring them up for future comment.

REPORT, RE: ARTICLE CONCERNING FORMER SENATE PRESIDENT GWEN MARGOLIS

Chairman Higgs commented on an article by former Senate President Gwen Margolis, who now serves on the Miami County Commission, comparing service at the local and State levels.

WARRANT LISTS

Upon motion and vote, the meeting was adjourned at 1:33 p.m.

ATTEST:

NANCY N. HIGGS, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

SANDY CRAWFORD, CLERK
( S E A L )