November 9, 2004

The Board of County Commissioners of Brevard County, Florida, met in regular session on November 9, 2004, at 9:00 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chair Nancy Higgs, Commissioners Truman Scarborough, Ron Pritchard, Susan Carlson, and Jackie Colon, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Reverend Luis Lugo from El Sinai Church, Palm Bay, Florida.

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

APPROVAL OF MINUTES

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve the Minutes of August 5, 2004 Zoning Meeting and September 14, 2004 Regular Meeting. Motion carried and ordered unanimously.

REPORT, RE: NEW NATURAL RESOURCES MANAGEMENT DIRECTOR

County Manager Tom Jenkins introduced Ernie Brown as the new Natural Resources Management Director, welcomed Mr. Brown to Brevard County, and noted he has been on the job two days. He recognized Virginia Barker who served admirably as interim Director for a number of months, and thanked her for her efforts.

PRESENTATIONS, RE: COMMISSIONER NANCY HIGGS

County Manager Tom Jenkins advised Tom Neidert with Brevard County Fire Rescue would like to make a presentation to Commissioner Higgs.

Tom Neidert presented a plaque to Commissioner Higgs in appreciation for being a good County Commissioner for Brevard County; thanked her for her support; and wished her good luck in her future endeavors.

Mike Cunningham advised the information he brings before the Board this morning is no doubt important to the entire population of Brevard County, but also to certain groups in particular.

He stated at some time or times in the workings of government, there is a need for secrecy, stealth, subterfuge, and perhaps even a bit of chicanery; and so it is today and so it should be. Mr. Cunningham stated those persons who assisted in this conspiracy must be thanked, but unfortunately must forever remain unknown. He stated Commissioner Higgs has been the embodiment of a true and faithful servant of the people in this County; and it is his esteemed pleasure and privilege to assist in honoring her on this occasion for her many years of service and to present her with some small tokens of appreciation from those grateful citizens. He noted he will read the inscriptions and ask the assembled audience to join them in showing their thanks for her dedication and leadership; and read, “Presented to Commissioner Nancy Higgs, a public servant, representative of her County, leader, and friend. Brevard County is a better place today because of your dedication to the ideals that we all strive to achieve. Our thanks from a grateful community that will miss you. The Micco Homeowners Association”; and presented the plaque to Commissioner Higgs.

Mr. Cunningham read, “This is with the highest esteem and appreciation to Commissioner Nancy Higgs for many years of service and dedication to her constituents in District 3. We wish you the best for all future endeavors and offer our sincerest thanks for a job most well done. The residents and friends who care and who will not soon forget your concerns for the people. Thank you.” He presented the plaque to Commissioner Higgs.

Mr. Cunningham continued to read, “Leadership, direction, courage, and conviction are desired traits. When one exceeds those characteristics, those nearby can only admire and wish to follow. In that respect we have admired, we have followed, and hope to continue the efforts set forth by Commissioner Nancy Higgs. Our heartfelt thanks go out to you and we can only wish for greater achievements. Presented on behalf of the South Mainland Long-range Planning Committee”; and presented the plaque to Commissioner Higgs.

Chair Higgs thanked Mr. Cunningham and the citizens who did the appreciation plaques; stated her deep appreciation to the citizens of District 3 who let her do this job; stated it has been a fascinating experience; and thanked County Manager Tom Jenkins and his staff, and County Attorney Scott Knox and his staff for the support they have given her through the years. She stated the Board has been interesting and fascinating always; and wished the Commissioners the best in what they do. She thanked Barbara Arthur and the staff of District 3 who worked with her; and her family who suffered through this and have been willing to support her through the years. She stated Pat, Matthew, and William have been great troopers; it has been a real educational experience and a wonderful opportunity to serve; and she would encourage everybody to do it.

Commissioner Colon stated to be a public servant is such a sacrifice; and she wants to say thank you for all the sacrifices Commissioner Higgs and her family made on behalf of the citizens of Brevard County, not just District 3, because she always looked out for the entire County. She stated the community is a better place after Commissioner Higgs’ 12 years on the Board; they did not always agree, but 99% of the time they did; and she wished Commissioner Higgs lots of luck in everything she is going to do.

Chair Higgs thanked Commissioner Colon for her expressions.

Commissioner Pritchard stated Commissioner Higgs is going to be leaving the Board; and in that honor, he tried to write her a poem, brought all his creative juices to flow. He read, “roses are read, violets are blue”, and stated that is as far as he got. He stated he likes to joke around and tease Commissioner Higgs, but wants to say he has enjoyed their tete-a-tetes that they had; enjoyed the positions they have taken and the arguments she presented; and sometimes she was right. Chair Higgs noted usually she was right. Commissioner Pritchard stated not often enough was she wrong; and she has been a pleasure to work with. He stated when she ran the marathon she went up a few notches in his estimation of her esteem; and that is why he gave her a plaque and why he still calls her the Florida Flash. He stated Commissioner Higgs is a remarkable woman and has done well; she had her views and he had his; his of course were the correct views; but he enjoyed working with her; and even when he was on the other side of the podium and would make his presentations, she did not treat him with complete disdain or have him removed from the audience. He stated she listened, but she did not follow what he had to say; it was most disappointing; he did want to tell her that; but all in all it has been a pleasure and he has a couple of things to give her. Commissioner Pritchard presented a book about the Florida Manatee to Commissioner Higgs; stated he wants her to read the book so she will fully understand what the real science is behind the manatee issue; and he had the author endorse it to her, as follows: “To Nancy, A truly open mind is the gateway to knowledge. I hope you are informed by my book. The truth is in the data, and one only has to take the time to understand it. Best wishes, Captain Tom McGill.”

Chair Higgs stated she will read the book because they always need to open their minds and be challenged by other facts to see if their views are correct; and expressed appreciation to Commissioner Pritchard. Commissioner Pritchard noted there are some brilliant quotes in it by him; with Chair Higgs responding she will try to gloss over those.

Commissioner Pritchard stated on behalf of the entire Board, the outgoing Chair receives a beautiful plaque; and it says, “Nancy Higgs, Chair 2000, 2004. Commissioner 1992 to 2004. Presented in appreciation for your dedicated service to the citizens of Brevard County and District 3.” He presented the plaque to Commissioner Higgs and thanked her for all she has done.

Chair Higgs stated she will read the book; they all need to challenge their ideas and assumptions with knowledge; and she appreciates it.

Commissioner Carlson stated a lot has been said about Commissioner Higgs; she knows she does not like folks to be nice to her and prefers them to be rude because she is equipped very well to handle the rudeness in society; but she wants to thank her for her tenacity when she really believes in things. She stated it has been an inspiration to her; Commissioner Higgs has been a mentor in that respect; she has tried to bring herself up a notch in terms of her own tenacity; but she tends to sit and listen. She thanked her for her patience with those who do not normally share her views and for her efforts to educate them; stated she has been a mentor, friend, and inspiration to the community at-large; and for those who would like to seek this office, she has been a great inspiration.

Chair Higgs thanked the Commissioners and stated she has enjoyed working with them.

REPORT, RE: DEPUTY TO POPULATION RATIO

Commissioner Scarborough stated at the last Zoning Meeting, the Board elected to delay several items and was dealing with the ratio of deputies per capita; and it wanted to get more information. He stated in conversations with Assistant County Manager Peggy Busacca and Finance Director Stephen Burdett, and recalling a comment County Attorney Scott Knox made to him after that, the Board, in whatever it sets, will be compelled to fund that. He stated it is not a matter of not looking at the needs of the Sheriff’s Department and setting it at realistic goals; there are several options and discussions that need to occur; their new Sheriff needs some time to get into the dialog; and to not have him in the dialog could put the Board in the posture of funding things other than what it wants to fund. He stated the Board cannot set the parameter and walk away from it; it sets it and funds it; so if it is okay with the Board, he would like to take it up in January and have the opportunity to know fully what the numbers are. Commissioner Scarborough stated it is currently two deputies per 1,000 residents; the Board asked staff to come back with a report on options of how to define that more precisely; and in his discussions with Mr. Knox, he said the Board is legally compelled to fund it. He stated the County will have a new Sheriff in January 2005; and staff would like the opportunity to integrate his thoughts in with theirs so they have something that is workable. Chair Higgs inquired if Commissioner Scarborough is asking for a workshop with the Sheriff; with Commissioner Scarborough responding no; and stated the Board asked for the report on November 30; if it gets the report on the 30th, it will not get what it needs; and there is no reason why it cannot wait until January unless it wants to get a preliminary report, which he does not think would be sufficient and may cause misdirection in this matter. Commissioner Pritchard stated the Board should wait until January.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to continue completion date for staff report on deputy to population ratio until January 2005.

Chair Higgs stated the information that will come in the report and the definition of how those are derived need to come from a wide-range of expertise at both the State and federal levels because those standards have been set in a variety of places. She stated defining level of service and deputies, and who is counted, should come not just from the community, but from the broader perspective; and the Board needs to demand that level of staff report.

Commissioner Scarborough stated he fully appreciates what Chair Higgs is saying, but this issue has come up before the Board many times; the Board funds the Sheriff but does not determine how many deputies the Sheriff has; it needs to have some understanding with the Sheriff’s Department regarding the number of people on the road because having formulas and being compelled to fund formulas may lead to further problems rather than answers. He stated that is all he is asking for, and not that the Board move away from any standards. Chair Higgs stated she wants the Board to understand the standard is not just what it means locally, but what it means nationally.

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

REPORT, RE: ITEMS REMOVED FROM CONSENT

Commissioner Scarborough pulled Items III.D.1 and III.D.7. from the Consent Agenda to be discussed at the end of the meeting.

REPORT, RE: STRAWBRIDGE ART LEAGUE

Commissioner Carlson introduced Siri German with Strawbridge Art League.

Siri German thanked the Board for its help in the past years and continued recognition; stated they are a 250-member organization located at Henegar Center for the Arts in downtown Melbourne; and they represent all art media, including people who are just interested in the arts. She stated they have been around for five to six years and have grown quite a bit; and the events are free to the public and a lot of fun. She stated their Annual Sidewalk Art Show 2004 will be held on November 20 and 21, 2004, from 10:00 a.m. to 5:00 p.m. on Highland Avenue in old Eau Gallie; there will be 100 booths and they will show working artists so the public can see how they create their art. She noted it is interesting to watch; and there will be all types of art for sale. She stated the Paperworks Exhibit is at the Henegar Center on the second floor in the Grand Ballroom; it can be seen during business hours; all the works are on paper in some form; and they are created by the Strawbridge Art League members. She stated the gala was recently held on November 6 and was very successful; the Vision Show will be held on January 29, 2005; the Young Artist Show will be held on March 19, 2005; and the Green Gables will be held on May 7, 2005, which involves historic restoration. She noted it is their newest project, and she hopes everybody will attend their events.

Commissioner Carlson advised the Art League has information in the foyer for those interested in its activities.

REPORT, RE: RECYCLING COMMITTEE

Commissioner Carlson advised she has a question about the Recycling Committee and its longevity; evidently in the Minutes of a past meeting, when the Board discussed it, it said the Committee would be reviewing the recycling issues annually; and she wants to clarify whether the Board meant annually or if it was going to sunset the Committee because the paperwork and Resolution said it is sunsetting. She stated she wants to either bring it back to clarify or find out what the Board was intending; her personal thought was that it was looking at it because it has 11 accepted issues that it was supposed to be following through with on the recycling side; and the Committee is supposed to be providing the citizen oversight. She stated a Committee report is due in February; but the question is will it continue to be a standing committee to look at the issues and bring up anything else; she does not know if those 11 issues would be completely accomplished at that point; and she is looking for input to clarify that position.

Chair Higgs stated if the Resolution is in conflict with some of the discourse that Commissioner Carlson thinks happened, she might want to bring it back so the Board can deal with it. Commissioner Carlson requested an Agenda item be made up and brought back with accompanying documents, the Minutes, and Resolution. She stated there are 11 items the Board acknowledged that the County would go forward with; so those should also be included on the Agenda Report. Chair Higgs stated it clearly says the Committee will sunset, so the Board needs to get it really clear. Commissioner Pritchard stated the Board may want to see what the report is in February and see if there is a need to continue the Committee then. Commissioner Carlson stated that is an option; she does not have a problem either way; but she wants to make sure the Board clarifies it because some of the Committee members are under the impression that as of February they are done and others think there is ongoing work. She stated the Board can clarify it in February, but maybe it can get a report back at this point and bring it up when that comes back.

REPORT, RE: GROUNDBREAKING AT PALM BAY REGIONAL PARK

Commissioner Colon advised the groundbreaking for the community center at Palm Bay Regional Park was held on Saturday; it was exciting; they have been waiting 12 years; and it was an incredible event. She stated the community was very happy; City Council and Advisory Board members were there; and they are getting the folks in South Brevard ready to have a beautiful community center and are looking forward to having the grand opening.

REPORT, RE: COMMENDING COMMISSIONER NANCY HIGGS

Commissioner Colon stated Commissioner Higgs does not do well with compliments; she likes to stay focused; but one more time she would like to reiterate that Commissioner Higgs is leaving a legacy behind as an elected official. She stated whether people like it or not, that is something that needs to be mentioned; she deserves the Board’s respect because of it; and she fought the good fight. She stated the EELS referendum passing can be attributed to her trying to make the community as knowledgeable as possible; and she congratulates her on that kind of victory. Commissioner Colon stated something that stands close to her heart was the hurricanes the County went through; Commissioner Higgs’ leadership showed to its fullest extent during that time when they needed her; it was not an easy task; nobody in the community had ever encountered something like that; and Commissioner Higgs did it so well with a lot of class that she will forever be grateful for that. She stated one never knows how he or she will react under pressure; Commissioner Higgs showed true class; and she made her very proud when she saw her on television with the Governor, as she carried herself so well. She stated on behalf of the citizens she wants to thank Commissioner Higgs one again for that period of time when nobody knew how they would come out. She stated Commissioner Higgs has been incredible; and thanked her for everything she has done so unselfishly for the community.

Chair Higgs expressed her appreciation to Commissioner Colon, and stated she has been honored to serve and thinks all the Commissioners are.

RECOGNITION, RE: FALL 2004 GRADUATING CLASS FOR CITIZENS ACADEMY

Special Projects Coordinator Marea Staples advised they are here for the presentation of diplomas to the Fall 2004 graduating class of the Citizens Academy; it is a free nine-week educational program of a three-hour meeting per week; and they continued to come back after rescheduling because of the hurricanes. She stated the County Departments that participate involved the County Manager’s Office, SCGTV, Public Safety, Emergency Medical Services, Animal Services, Utility Services, Natural Resources, Mosquito Control, Transportation Planning, Transportation Engineering, Roadways and Landscaping, Parks and Recreation, Library Services, Permitting and Enforcement, TDC, and Budget. Ms. Staples advised the next session will be in March 2005; people interested can review the website or call 633-2010 as it is on a first come/first serve basis; and the diplomas will be handed out by Chair Higgs.

Chair Higgs presented diplomas to Gilbert Albers, Eric Albury, Jane Albury, Brian Archer, Linda Archer, Cassie Bradley, Jamia Brogan, Robert Brodner, Pam Dowdy, Molly Ann Farace, Linda Fow, Tracey Giemza, Gail Gowdy, Barbara Griffith, John Hordos, Todd Hause, Mike Kahanca, Donald Miller, Jo An Miller, Robert Putnam, Bob Richmond, Dick Rivers, Bill Rock, Jill rock, Jim Rosasco, John Rossi, Sebastian Sanchez, Clyde Thodey, Jr., Darlene Van Der Wal, Donna Wagner, Wilt Wagner, and Shalerie Wilkins.

RESOLUTION, RE: PROCLAIMING VETERANS DAY

Commissioner Pritchard advised with more than 1,000 veterans dying each day, for some veterans this Veterans Day may be among the last occasions the Board has to honor their service; he visited the World War II Memorial in Washington, D.C. earlier this year and was awed by its monuments and inscriptions; the Memorial honors the 16 million who served in the Armed Forces of the United States, the more than 400,000 who died, and all who supported the war effort from home. He stated symbolic of the defining event of the 20th Century, the Memorial is a monument to the spirit, sacrifice, and commitment of the American people; and he will read the resolution commemorating Veterans Day. Commissioner Pritchard read aloud a resolution proclaiming November 11, 2004 as Veterans Day in Brevard County.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution proclaiming November 11, 2004 as Veterans Day in Brevard County, and encouraging all citizens to honor veterans by flying the American flag. Motion carried and ordered unanimously. (See page for Resolution No. 04-285.)

Commissioner Pritchard presented the Resolution to Maurice Meisner, Chairman of the Brevard Veterans Council and Memorial Center, who stated it is his pleasure, on behalf of the 77 different organizations of men and women of the Armed Forces, to accept the proclamation, urged all citizens to thank the troops and their families; and when they meet them on the street, to stop and shake their hands.

Commissioner Carlson advised of the Veterans Day Parade on November 9, 2004 at Honor America in downtown Melbourne at 9:00 a.m., and the massing of the colors at Brevard Community College at 3:00 p.m.

RESOLUTION, RE: COMMENDING BILL HURST

Commissioner Scarborough advised for a long time Port St. John did not have representation on the North Brevard Hospital District Board, and there was a question on the level of serving being provided there; Bill Hurst served for many years on that Board, and because of his strong desire and fine groundwork, they are looking forward to a new facility in Port St. John so all the citizens will have better medical treatment. Commissioner Scarborough read aloud a resolution expressing appreciation to William “Bill” Hurst for his years of dedicated service to the citizens of Brevard County.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to adopt Resolution expressing appreciation to William “Bill” Hurst for his many years of dedicated service to the citizens of Brevard County and wishing him well in his future endeavors. Motion carried and ordered unanimously. (See page for Resolution No. 04-286.)

Commissioner Scarborough presented the Resolution to Mr. Hurst who said he did not think it would take that many years to get it done; he wanted to do more things, but time and age caused him to call it quits; and he looks back at the memories and good friends he made; and will always remember this moment.

Chair Higgs stated there are a lot of fine people like Mr. Hurst who give a great deal to the community; and those contributions make it a good place to live. She stated the Board is grateful to Bill for giving of his services and to everybody else who takes time to serve the community. She noted the Board hopes there will be more that will follow his leadership.

RESOLUTION, RE: COMMENDING MAYOR JOHN BUCKLEY

Chair Higgs advised the Board wants to recognize another fine public servant today; and he is in the back of the room.

Commissioner Pritchard requested John and Helen Buckley come to the podium; stated the Board tends not to recognize the spouses, but everyone realizes they are the wind beneath their wings; and Helen Buckley should be congratulated for tolerating John as long as she has. He stated he went to Mayor Buckley’s retirement party; it was well attended and a wonderful time; people had kind things to say about him; and he will be missed, but will not be gone and will still be an influence in the community. Commissioner Pritchard read the resolution congratulating Mayor John A. Buckley on his accomplished and dedicated record of public service.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution recognizing and congratulating Mayor John A. Buckley on his accomplished and dedicated record of public service, and extending best wishes to him and his wife Helen for good health and happiness in their retirement years. Motion carried and ordered unanimously. (See page
for Resolution No. 04-289.)

Commissioner Pritchard presented the Resolution to Mayor Buckley, who stated he appreciates working with all the Commissioners.

Chair Higgs stated she appreciates having the opportunity to serve with Mayor Buckley and wishes him and Helen the best. She stated they attended a lot of events together and she appreciates his friendship and his work for the City of Melbourne.

Commissioner Colon stated it will be strange for her to walk in the Martin Luther King Day walk in January without Mayor Buckley and Commissioner Higgs. Chair Higgs stated she can still walk. Commissioner Colon stated it has been an honor to work with Mayor Buckley closely on so many different projects; and Melbourne will not be the same without him. She thanked Mayor Buckley for all his hard work.

RESOLUTION, RE: PROCLAIMING FARM-CITY WEEK

Lowell Loadholtz introduced Tom Hill, field representative from the Florida Farm Bureau, and stated he works in several counties in the East Central Florida area and does a good job helping them and supporting them. He stated Mr. Hill lives in Sebastian so Brevard County has a lot more opportunities than other counties because of his leadership.

Commissioner Colon read aloud a resolution proclaiming November 19 through 25, 2004 as Farm-City Week in Brevard County.

Motion by Commissioner Colon, seconded by Commissioner Pritchard, to adopt Resolution proclaiming November 19 through 25, 2004 as Farm-City Week in Brevard County, and calling upon citizens in rural and urban areas to acknowledge and celebrate the achievements of all those who, working together, produce an abundance of agricultural projects that strengthen and enrich the community and nation. Motion carried and ordered unanimously. (See page
for Resolution No. 04-288.)

Commissioner Colon presented the Resolution to Lowell Loadholtz, who stated it is a delight to come and accept the Resolution; thanked the Board for the contributions it makes in supporting the agricultural and farm families in the County; and stated agriculture, like many other industries has suffered a great lost by the hurricanes, but the Lord is good and the people are strong. He stated by next spring the County will be revitalized; new fruit will be set, calves will be on the ground, and people will be working hard again; and they will continue to be a strong and viable force in the County. He stated they need to continue to maintain the viable partnership with leaders like the Board and the people tilling the soil and providing food and fiber for the people of the community and the nation; and thanked the Board on behalf of the farm families for its support.

Mr. Hill asked that people look for “Fresh from Florida” logos in the markets and support the agricultural community. Chair Higgs stated agriculture is important to everyone.

AGREEMENT WITH ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, RE:
ARTESIAN WELL PLUGGING PROGRAM

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Agreement with St. Johns River Water Management District to allow a licensed water-well contractor to control abandoned artesian wells in Brevard County. Motion carried and ordered unanimously. (See page for Agreement.)

FINAL ENGINEERING AND PRELIMINARY PLAT APPROVALS, RE: HERITAGE ISLE
PUD, PHASE 3

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to grant final engineering and preliminary plat approvals for Heritage Isle PUD, Phase 3, subject to minor engineering changes as applicable and developer responsible for obtaining all required jurisdictional permits. Motion carried and ordered unanimously.

FINAL ENGINEERING AND PRELIMINARY PLAT APPROVALS, RE: FALCON RIDGE
SUBDIVISION

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to grant final engineering and preliminary plat approvals for Falcon Ridge Subdivision, subject to minor engineering changes as applicable and developer responsible for obtaining all required jurisdictional permits. Motion carried and ordered unanimously.

PRELIMINARY PLAT APPROVAL, RE: VIERA MARKET CENTER

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to grant preliminary plat approval of Viera Market Center subject to developer responsible for obtaining all required jurisdictional permits. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL AND CONTRACT WITH THE VIERA COMPANY, RE:
RAVENCLIFFE SUBDIVISION, PHASE 2

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to grant final plat approval for Ravencliffe Subdivision, Phase 2, subject to minor changes if necessary, receipt of all documents required for recording, and developer responsible for obtaining applicable jurisdictional permits; and execute Contract with The Viera Company for improvements in the Subdivision. Motion carried and ordered unanimously. (See page for Contract.)

AGREEMENT WITH JOAN BICKERSTAFF, RE: LEGAL REPRESENTATION OF
CONTRACTORS LICENSING BOARD

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Agreement with Joan Bickerstaff to provide legal representation of the Contractors Licensing Board. Motion carried and ordered unanimously. (See page for Agreement.)

EXTENSION AGREEMENT WITH VIERA BOULEVARD, J.V., INC., RE: IMPROVEMENTS
TO VIERA COMMERCE PARK

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Extension Agreement with Viera boulevard, J.V., Inc. guaranteeing infrastructure improvements to Viera Commerce Park. Motion carried and ordered unanimously. (See page
for Agreement.)

UNPAVED ROAD AGREEMENT WITH MIKE AND HEIDI WASILEWSKI, RE:
LAFAYETTE STREET

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Unpaved Road Agreement with Mike and Heidi Wasilewski for construction of Lafayette Street in an existing County right-of-way under the Unpaved Road Code of Ordinances, Section 62-102. Motion carried and ordered unanimously. (See page for Agreement.)

CONTRACT WITH THE VIERA COMPANY, RE: LAKE ANDREW DRIVE, PHASE 2

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Contract with The Viera Company guaranteeing improvements to Lake Andrew Drive, Phase 2 Widening Project. Motion carried and ordered unanimously. (See page for Contract.)

ACKNOWLEDGE RECEIPT, RE: ANNEXATION #AR-2004-164 FROM CITY OF
MELBOURNE

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to acknowledge receipt of Annexation #AR-2004-164 from the City of Melbourne for approximately 90 acres on the west side of Wickham Road along Turtle Mound Road between Parkway Drive and Lake Washington Road, specifically Harlock Road. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT, RE: ANNEXATION #AR-2004-162 FROM CITY OF
MELBOURNE

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to acknowledge receipt of Annexation #AR-2004-162 from the City of Melbourne for approximately 90 acres on the west side of Wickham Road along Turtle Mound Road between Parkway Drive and Post Road. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT, RE: ANNEXATION #AR-2004-160 FROM CITY OF
MELBOURNE

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to acknowledge receipt of Annexation #AR-2004-160 from the City of Melbourne for approximately 5.66 acres on Hazelwood Drive, south of Stewart Place, north of Stewart Lane, and west of Stewart Road. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT, RE: ANNEXATION #AR-2004-156 FROM CITY OF
MELBOURNE

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to acknowledge receipt of Annexation #AR-2004-156 from the City of Melbourne for approximately 39 acres located along the east side of John Rodes Boulevard. Motion carried and ordered unanimously.

PERMISSION TO INCREASE WORK ORDER TO PBS&J, INC., RE: AURORA ROAD
SIDEWALK PROJECT, PHASE 1

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to authorize an increase in Work Order #2002-014-P-006 to PBS&J, Inc. in the amount of $24,800 for new total of $40,400 for the Aurora Road Sidewalk Project, Phase 1. Motion carried and ordered unanimously.

RESOLUTION AND AGREEMENT WITH BREVARD CULTURAL ALLIANCE, INC., RE:
AGENCY FOR ARTS AND CULTURAL DEVELOPMENT

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to adopt Resolution authorizing execution of an Agreement with the Brevard Cultural Alliance, Inc. to act as the primary coordinating and development agency for arts and cultural development for a total of $191,249.96. Motion carried and ordered unanimously. (See pages
for Resolution No. 04-289 and Agreement.)

AMENDMENTS NO. 1 TO AGREEMENTS WITH DEPARTMENT OF ENVIRONMENTAL
PROTECTION, RE: EXTENDING GRANTS FOR PONCE LANDING AND ROTARY PARK

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Amendments No. 1 to Agreements with Department of Environmental Protection, extending Florida Recreation Development Assistance Program grants for a period of five months for Ponce Landing and Rotary Park due to hurricanes causing construction delays. Motion carried and ordered unanimously. (See pages for Amendments No. 1.)

DEED OF CONSERVATION EASEMENT TO ST. JOHNS RIVER WATER MANAGEMENT
DISTRICT, RE: MITIGATION FOR VIERA REGIONAL PARK

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to execute Deed of Conservation Easement to St. Johns River Water Management District as part of the mitigation for development of Viera Regional Park. Motion carried and ordered unanimously. (See page for Easement.)

APPROVE SOLE SOURCE AND PURCHASE ORDER TO JOHN BROWN & SONS, INC.,
RE: MULLET CREEK ISLAND EXOTICS ERADICATION PROJECT

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve John Brown & Sons, Inc. as sole source and issue Purchase Order in the amount of $82,360 for the NW Mullet Creek Island Exotics Eradication Project. Motion carried and ordered unanimously.

PERMISSION TO BID, AWARD BID, AND EXECUTE CONTRACTS, RE: FENCING
OF EELS MANAGED PROPERTIES

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to grant permission to advertise for bids, award bids to lowest qualified bidders, and authorize the Chair to execute associated Contracts for fencing projects at Grant Flatwoods, Micco Scrub, Malabar Scrub, Maritime Hammocks, Hardwood Hammocks, and Coconut Point Sanctuaries, and Hog Point, Washburn Coves, and MEP, Grant. Motion carried and ordered unanimously.

AUTHORIZE MEMBERSHIP, RE: NATIONAL AIR DUCT CLEANERS ASSOCIATION

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to authorize membership to the National Air Duct Cleaners Association at $650 for the annual membership dues and $100 for the application fee, which will benefit the County by providing a $1,425 discount for the Air System Cleaning Specialist Preparation Class and Exam. Motion carried and ordered unanimously.

TERMINATE CONTRACT WITH EAST COAST PAINTING OF BREVARD, AWARD BID
TO TOWN AND COUNTRY PAINTING, INC., AND EXECUTE CONTRACT, RE:
CENTRAL REFERENCE LIBRARY IN COCOA

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to terminate Contract with East Coast Painting of Brevard, and award bid to Town and Country Painting, Inc. for painting of Central Reference Library; and authorize the Chair to execute the Contract. Motion carried and ordered unanimously. (See page for Contract.)

PERMISSION TO BID, AWARD BID, ESTABLISH NEGOTIATING COMMITTEE,
NEGOTIATE CONTRACTS, EXECUTE CONTRACTS, AND REUSE
ARCHITECTURAL DRAWINGS, RE: NEW FIRE STATIONS IN SCOTTSMOOR
AND VALKARIA

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to authorize staff to negotiate with Herb Sands Architects for reuse of its architectural drawings for fire stations in Scottsmoor and Valkaria; appoint a Negotiating Committee of Stockton Whitten, Hugh Muller, and Bill Farmer to negotiate architectural contracts; grant permission to bid and award bid to the lowest, qualified and responsive bidder; and authorize the Chair to execute the Contracts. Motion carried and ordered unanimously. (See pages for Contracts.)

RENEWAL OF POLICY BCC-47, RE: ACCEPTANCE OF DONATIONS

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to accept sunset review of Policy BCC-47, Acceptance of Donations to the Board, and accept the recommendation of no changes at this time. Motion carried and ordered unanimously.

APPROVE AND RATIFY SETTLEMENT STIPULATION, RE: COURTNEY AND CAROL
ROBERTS

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve and ratify the Settlement Stipulation between Courtney and Carol Roberts and Brevard County, brought to the Board’s attention on May 25, 2004. Motion carried and ordered unanimously.

APPROVAL, RE: SAFETY HAZARD PAY FOR NON-BARGAINING UNIT EMPLOYEES
OF PUBLIC SAFETY/FIRE RESCUE SUPPLY PERSONNEL

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to authorize safety hazard pay of $.50 per hour for non-IAFF Public Safety/Fire Rescue employees who are assigned as supply personnel for Fire Rescue. Motion carried and ordered unanimously.

RESOLUTIONS, RE: COMMENDING DISTRICT 3 ADVISORY BOARD MEMBERS

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to adopt Resolutions commending members of District 3 Advisory Boards for their contributions to Brevard County, and recognizing their tireless efforts and services to the community. Motion carried and ordered unanimously. (See pages for Resolutions No. 04-290.)

REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to reappoint Ralph Perrone, Duane Watson, and Bert Francis to the Merritt Island Redevelopment Agency with terms expiring November 13, 2008. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING PUBLIC UTILITY AND DRAINAGE
EASEMENT IN THE FAIRWAYS AT THE GREAT OUTDOORS - DIANA EPPERSON

Chair Higgs called for the public hearing to consider a resolution vacating a public utility and drainage easement in The Fairways at The Great Outdoors, as petitioned by Diana Epperson.

Transportation Engineering Director John Denninghoff requested the public hearing be continued to January 11, 2005.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to continue the public hearing to consider a resolution vacating a public utility and drainage easement in The Fairways at The Great Outdoors, as petitioned by Diana Epperson until January 11, 2005. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING CANAL IN GATEWAY SUBDIVISION,
UNIT NO. 1 - MICHAEL S. MINOT (JACK D. HURT)

Chair Higgs called for the public hearing to consider a resolution vacating a canal in Gateway Subdivision, Unit No. 1, as petitioned by Michel S. Minot, representing Jack D. Hurt.

Attorney Michael Minot, representing Jack D. Hurt, advised this public hearing is a continuation of a matter that was before the Board a number of weeks ago; and there is a supplement to it, but first he would like to relate the background so they can be on the same page before going forward this morning. He stated staff has given the Board a report regarding the history of the item, which is a request for vacating of a right-of-way of a small portion of property in the Gateway Subdivision, Unit 1 located in Merritt Island; the plat was recorded in 1963 and attached to the application and recent correspondence he sent to the Commissioners, is a copy of the plat indicating that the property has the word “canal” written across it as opposed to any other designation; so it was a specific purpose dedication for a canal at the time it was dedicated. He stated there was a small amount of water in less than 0.2 acre; in 1989, the County requested Mr. Hurt fill in the property; it was never used as a canal; and it was leased to his client for ten years for landscaping and entrance to his property. Mr. Minot stated he sent the Board correspondence on October 25, 2004, attached items, and inquired if there is a public purpose for maintaining the property for right-of-way; and Florida Statutes 255.22(1) and (2) set forth criteria for abandonment, which applies both to the petition for vacation as well as a request for a quitclaim deed. He stated (2) says, “In the event the purpose for which the property was conveyed required physical improvement or the construction on such property or the maintenance thereof, any such municipality or county that fails to construct, improve, or maintain such property for the period specified in Section 1 shall be conclusively deemed to have abandoned the property for which it was conveyed.” He stated paragraph 1 indicates that 16 months from the time it was conveyed by the plat as a right-of-way if it was not constructed, maintained, or improved for that purpose, then it was deemed to have been abandoned; from 1963 to 1968 is a long time ago, but they do not have to use that period of time because from 1963 to the present, that purpose has never ever been used as clearly set forth on the face of the plat. He stated his client, Mr. Hurt, who is both the owner of the platted lot immediately to the south, also has a quitclaim deed, which has been attached to the petition, from the property owner of the platted lot to the north of the property giving him reversionary rights to the property; so he has the standing by which to make the petition for vacation and also the quitclaim deed.

Richard McBryde of Merritt Island stated he is opposed to the issue for drainage purposes; he believes it can be better maintained as a drainage system; stormwater came into their home during the last hurricanes; and he believes the canal would better serve as a retention area. Chair Higgs inquired where does Mr. McBryde live in relation to the property; with Mr. McBryde responding just to the south.

Attorney Victor Watson advised he is a board certified real estate attorney and specializes in title issues; one thing that is interesting, as he was going through the file, is that Cynthia Streeter requested Mr. Minot submit to her the deed by which Mr. Hurt claimed to be an adjacent property owner; Mr. Minot submitted a deed dated October 18, 2000; so it is interesting to note that Mr. Hurt is saying he has owned the property since 1987, filled in the land, and done all those things, but the only deed that he has submitted to show his ownership is as of October 18, 2000. He stated prior to that time, litigation has been going on with regard to titles in the entire area; Mr. Hurt said in 1987, he thought he received something, but did not have title to it until the year 2000; Commissioner Pritchard talked about possible vested rights with regard to the driveway since Mr. Hurt has done work out there; but he would submit if there are any vested rights, it may benefit the property where Mr. Hurt built his house, but it does not benefit Mr. Hurt because he did not own that property at the time. Mr. Watson stated another interesting issue is the quitclaim deed that he claims to hold title is the subject of litigation; he found some surveys that were prepared by Mr. Hurt and his surveyors, which Mr. Minot is very familiar with; and Commissioner Scarborough knows that a legal description, in order to be valid, needs to close, which means having a point of beginning, going around, and having the point of termination meet the point of beginning. He stated it is also interesting that Mr. Hurt’s position is that the quitclaim deed takes in a lot of people’s properties, and other people’s houses; in the County’s file there is a copy of a 1987 Property Appraiser’s map; and on that map, it is his and on that map, it is his understanding that what Mr. Hurt claims and what is included within the quitclaim deed are all of tax parcels 508 and the house on that parcel, and all of parcel 515 and the house on that parcel. Mr. Watson stated at the last hearing there were discussions by Commissioner Pritchard about Mr. Hurt’s development plans; he would be interested to know what those plans are; he has various clients in the area and two different groups having two different situations; so he would like to know what would be the benefit of the property to those proposed development plans of Mr. Hurt. He stated Mr. Hurt has contracts to sell the property; he would like to know what access to the parcels he is selling and if he intends to use the parcel for additional access to the other properties or does he intend to use Newfound Harbor Court. He noted there is a lot going on that they may not know about. He stated what he would request Mr. Minot do, and he should be able to do it as he has been working with it for approximately three years, is on the 1987 Pritchard map, based on the quitclaim deed of October 18, 2000, delineate the boundaries of the quitclaim deed he submitted to the County as the basis for his request; otherwise he does not think his application is sufficient if he is unable to do that. He stated it is the survey prepared by Honeycutt and Associates; and asked Mr. Minot, since the quitclaim deed is the basis for his request, if he could just trace the boundaries of the quitclaim deed on the survey.

Chair Higgs advised Mr. Minot he has an opportunity to rebut and there may be questions the Board would like answered regarding the actual delineation of the quitclaim deed and the survey.

Mr. Minot stated the application package, which went with the Agenda Report from Ms. Streeter, as well has his recent correspondence to each Commissioner, included the entire plat; and the Board will see in either one of those documents that the canal property is bordered on the north side by Lot 5, on the south side by Lot 4, and the canal in between the two is clearly identified by the word “canal” with wavy lines all the way around the canal. He stated the canal is smaller than the lots and therefore not deemed to be a buildable lot but is simply used for purposes of connecting the property with what may have been future development to the west that would lead out to Sykes Creek; and Mr. Hurt has title to Lot 4 and a quitclaim deed from the property owner of Lot 5 regarding any reversionary rights associated with the canal. He stated if he understands Mr. Watson, the issue is one of standing and does Mr. Hurt have standing simply to make the application; and he certainly does in three ways, (1) he owns Lot 4, (2) he owns the reversionary rights of Lot 5, and in addition to that, Mr. Watson and he are involved in litigation regarding property to the west; and Mr. Watson claims that after Mr. Hurt had been occupying the property and using it exclusive of everybody for 17 years, that there is some title problem there. He stated the Board does not need to be concerned with issues regarding the litigation associated with that, but can use any one of the three for purposes of recognizing that Mr. Hurt has standing to make the application. He stated once the standing issue is resolved, they will go beyond it to the merits of the application that stand on their own.

Chair Higgs advised the Board has been given descriptions on a survey and closing of the survey issue; and inquired how does that apply to the request; with County Attorney Scott Knox responding the basic issue before the Board is whether or not it wants to vacate the canal; that is the only issue; and it is a discretionary decision on the part of the Board whether it wants to do that or not. He stated he does not think the dispute over title has a lot of impact other than perhaps on the statutory quitclaim deed issue, which the owner has to be the one requesting that the property be conveyed to them by quitclaim deed; but again it is a discretionary thing and the Board does not have to do it, but can if it wants to. He stated if the Board decides it wants to move forward with it, it should do it as a vacating and not as a deed

Commissioner Scarborough inquired if standing is an issue; with Mr. Knox responding he does not think that is an issue. Chair Higgs stated there was an issue about houses contained in the survey that may be involved; with Mr. Knox responding the issue would be whether or not the other folks have some right, which they apparently claimed, to use the particular dedicated area and whether or not the Board wants to forestall any of those rights by granting a vacation or whether it wants not to choose to do that. Commissioner Scarborough stated it is a legal issue, so it would be worthwhile to listen to Mr. Watson one more time as to the standing issue.

Mr. Watson stated in looking through the file, he did not see any deed; Cynthia Streeter requested Mr. Hurt provide the deed by which he claimed ownership to allow him to do this; there is no deed describing Lot 4 of Gateway Subdivision, Unit 1; and the only deed that was produced by Mr. Hurt in support of the application was the October 18, 2000 deed; so his request to Mr. Minot is to simply ask him to, if it is the basis of his claim since that is all he submitted, to show them the outlines of the property. He stated if the property does not close, then he does not have any basis to request the vacation of the canal.

Commissioner Scarborough stated Mr. Knox advised he does not see standing as an issue; with Mr. Watson responding Mr. Knox is assuming there was a deed filed showing Mr. Hurt owned the property. Mr. Knox inquired if the deed applies to property in the Subdivision even though it does not close; with Mr. Watson responding yes, it applies to submerged land out in Newfound Harbor, but does not include Lot 4. Mr. Knox stated there is a dispute whether it does or does not; and the other side takes the position that it does. Mr. Watson stated there is no question that the deed that was submitted does not include Lot 4 of Gateway Subdivision. Mr. Knox inquired if Mr. Watson would agree with him that Mr. Hurt is claiming that he has ownership interest in Lots 4 and 5 by virtue of that deed; with Mr. Watson responding no, he would not agree with that. Mr. Knox inquired what is Mr. Hurt claiming then; with Mr. Watson responding he is claiming basically everybody’s property in the neighborhood; he is claiming that the legal description describes something, but he has never shown what it describes; and it should be easy enough to draw the lines. Mr. Knox stated Mr. Hurt claims an ownership interest in the properties in the Subdivision; and if that turns out to be the case, he has standing. Mr. Watson stated his clients are claiming ownership of the property in the Subdivision as well. Mr. Knox stated he understands there is a dispute and there are two sides to the story. Mr. Watson stated maybe other people would be interested in buying the property and would pay the County substantially more rather than the County just giving it away. Mr. Knox stated he has no dispute with that; the point is Mr. Hurt makes claim that he owns property in the area; and Mr. Watson’s client claims he does not own that property. Mr. Watson stated that is correct; and his client also makes a claim that he may own the same property. Mr. Knox stated it is not the Board’s function to decide who owns it; that is the court’s decision to be made whether Mr. Hurt does or does not own the property; so from the standpoint of his claim today to ask for vacation, he has standing because he at least has some basis for making the claim that he owns it. Mr. Watson inquired if it is vacated, would it benefit Mr. Hurt, and would it run with the land according to what is described in the quitclaim deed; with Mr. Knox responding if it is vacated, it will go by Statute to abutting property owners; and it will be determined by a court whether or not it is Mr. Hurt or somebody else. Mr. Watson stated the problem is Mr. Hurt has not proved that he is the abutting property owner; he has not shown any deed; Ms. Streeter requested that he provide a deed of the abutting property; and he has not done that. Mr. Knox stated he understands that, but the Board can vacate the canal with or without Mr. Hurt’s application. Commissioner Pritchard stated or the Board can choose not to vacate it. Chair Higgs stated the issue who it would go to might be of legal interest if the Board chooses to vacate the canal.

Commissioner Pritchard stated it is an interesting situation because there is documentation from the County in 1989, where Mahmoud Najda, who was the Project Manager then, wrote, “we are in agreement with your proposal in filling the hole to be used as an entrance to your residence as it provides no biological ecosystem or stormwater retention and is, in fact, a safety hazard due to the steep slopes.” He stated so Mr. Hurt, at his expense, filled in the hazard, which was designated as a canal; the County cannot sell an easement, it can only convey it; the issue of abandonment brought up by Mr. Minot where he quoted Florida Statutes, which says, “in the event the purpose for which the property was conveyed requires physical improvements or construction on such property and the maintenance therein. . .”; the County did nothing on that property for x number of years; so it raises the question whether Mr. Hurt may have a right to that property regardless of what is going to happen within the confines of the lawsuit. He stated the lawsuit bothers him because there is representation by the neighborhood that they are in litigation over the question of what Mr. Hurt claims is his property; apparently there has been nothing shown; and there were objections from the County’s Land Development and Land Acquisition Sections as well as BellSouth Engineering. He inquired if he did a fairly adequate job summarizing what the situation is with the attempt to vacate the canal; with Transportation Engineering Director John Denninghoff responding he thinks Commissioner Pritchard has. Mr. Denninghoff stated the correspondence from Mr. Najda basically was a response to a request; it was not a request by the County or at least it does not appear that way to him; it appears to be a response to Mr. Hurt to have authorization to fill the area; and for the reasons stated in the letter, Mr. Najda approved it. He noted it may be a subtle difference, but it is an important one that it was not the County requesting it. Mr. Denninghoff stated as to the issue of abandonment, it is a legal question, but he will advance the point that the County has maintained a right-of-way use Agreement with Mr. Hurt for the property; and in his view, that does not constitute abandonment, as the County has maintained the property, in effect, by contracting in a continuous manner for an extended period of time. He stated the use is a different question, but it is important to understand that the County did have a right-of-way use Agreement in place continuously. Commissioner Pritchard stated it is undetermined, according to Mr. Watson, who owns Lot 4 and who owns Lot 5; those are issues in litigation along with other areas in this very large area off Newfound Harbor Drive; and it would seem to him it would be premature to vacate the property at this time based on the concerns of the neighborhood, as well as the concerns of BellSouth and County Departments, until it is resolved who has ownership of Lots 4 and 5. He stated Mr. Hurt’s driveway substantially goes across Lot 4; there are a couple of areas where it is on the canal easement; if it is determined, through litigation, that he does not own Lot 4, the easement issue becomes moot; and inquired what would happen with his driveway in that situation, and how will he retain access to his property. Mr. Denninghoff stated he is not familiar enough with the remainder of Mr. Hurt’s property other than frontage off Newfound Harbor Drive as it exists today, so he does not know what his options would be at that stage. He stated if the Board chose to allow a right-of-way use agreement, Mr. Hurt could move his driveway completely onto the parcel in question in the petition; that could restore his access potentially; but that is speculation on his part because he is not familiar enough with the remainder of his property. Commissioner Pritchard stated the reason he is bringing it up is if, for example, it is his only access off Newfound Harbor Drive in the vicinity of the vacated area, which is the canal or Lot 4, and ownership of Lot 4 should go to another individual, the County has to provide access to Mr. Hurt’s property, his home and other acreage he owns; and if Lot 4 is not of his ownership, then perhaps the County would have to continue the vacation, give him the canal, or provide access where he would have to move his driveway onto the vacated land. He stated it would be premature to make a determination as to whether the Board should vacate the property until the issue about the other properties in litigation is resolved and the objections from the other entities are also resolved.

Chair Higgs inquired if that is a motion to deny; with Commissioner Pritchard responding he wants a comment from Mr. Denninghoff on that and wants to formulate a position that is reflective of what he believes is the current situation. Mr. Denninghoff stated he does not know of a time when the Board has chosen to approve a vacating request with the number of objections and questions that this request has.

Commissioner Scarborough stated there is a request to vacate a canal; to him a canal is different than a drainage easement; and inquired if it is different or if they are one and the same; with Mr. Knox responding it is a canal that is not a drainage easement. Commissioner Scarborough stated the Board is talking about taking an easement and expanding it into something other than what the easement is; and he does not like the conversation, otherwise the utility easement in the back of his house can become a roadway for his neighbors to his house. He stated an easement is defined by the name that is attached to it; and he does not mind continuing the public hearing until things are worked out, but he is not going down the slippery path of redefining easements for the convenience of the community to the abrogation of property rights. He stated it is not the way the Board should go. Commissioner Pritchard stated he understands what Commissioner Scarborough is saying, and even though it is called a canal, it is not a canal, it is dirt. Commissioner Scarborough stated going to the legal definition of community rights, it is for a canal; behind or along side a home there may be a utility easement; that means a utility line can be there and they can service the property and the neighbors’ properties; but it does not mean anything more. He stated it does not mean it is a drainage easement or someone can egress his or her property through another person’s property. He stated BellSouth has an interest in the canal; if BellSouth wants to bring barges in, it may; but unless the Board is talking about a canal, he has a problem moving the description of the easement into a multifaceted easement. Commissioner Scarborough stated there are a lot of property issues; if Commissioner Pritchard wants to have them resolved first, that is okay; but his feeling is he is going to look at this as a canal; and inquired whether the County ever in the future wants to put a canal in there. He stated a water retention area is different than a canal; a drainage easement is different than a canal; a canal could serve some purpose, but this one does not; so at this point he would be willing to vote in favor of the vacation, but since it is in Commissioner Pritchard’s District, he would support the motion, with the thought in mind that it is an outstanding issue. He stated he is satisfied that the purpose for having a canal there has in fact been abandoned unless staff is willing to give him a statement that it intends, at sometime in the future, to put a canal there.

Commissioner Colon stated Mr. Minot heard the discussion and the dilemma of whether to continue the public hearing to see if they can work it out; and requested feedback from Mr. Minot. Mr. Minot stated he disputes some of the facts Mr. Denninghoff gave the Board; one is that there has been a continuous right-of-way use agreement, which there has not been since 1989 to the present; and he mentioned that in his initial presentation. He stated from 1963 to 1989, the original purpose of the dedication on the plat had never been addressed up to the point where the County Engineering Office suggested and agreed that it be filled in; so there has not been a continuous use agreement. He stated he agrees with Commissioner Scarborough’s comment that it is a request for vacation; it is a vacation of a very specific type of dedication; the County does not have the ability to expand it and neither does the developer unless there is an amendment to the plat; and there are such things as amendments to plats, but this plat has never been amended. He stated he wants to clarify the issue of standing; the ongoing litigation, which is quite involved, involves property to the west, but there is no litigation regarding the property which is owned within Gateway Unit 1; Lot 4 is owned by Mr. Hurt separate from the property that is involved in litigation; and the property involved in litigation does not involve any property within the plat, which is the subject of the petition. Mr. Minot stated attached to the application is a Quitclaim Deed from the property owner of Lot 5 regarding reversionary rights; that issue simply shows where there is standing for Mr. Hurt to even make the petition; and he agrees with Mr. Knox that the Board can agree or not agree whether the property needs to be vacated no matter what the property rights are because the Board does not determine where the reversionary rights of the canal lot go. He stated the Board simply says is there a public purpose for the canal or not; it is between private property owners and the court as to what happens at that point; the concern as to what happens is not the Board’s; and the Board’s concern is simply whether it is a public purpose to maintain the canal. Commissioner Colon stated the Commissioner from the District has some concerns regard the litigation; she is trying to figure out whether it gets denied today or gets continued; and she is trying to make sure Mr. Minot has an opportunity to reiterate. Mr. Minot stated his response to Commissioner Pritchard would be that his concern is twofold; one is the litigation; he mentioned that the litigation is not concerning any property in the boundaries of the outline of the plat; it is west of that point; so he would request the Board focus on whether there is a use for the property as a canal. He stated litigation or no litigation, even if the litigation was regarding the property that is in the plat, which it is not, it is simply a very narrow question; and the question is has there been a use of the property as a canal. He stated that alone, pursuant to the statutory language, says there has presumptively been an abandonment. He stated in the event the Board desires to use it in the future that might be a consideration as well; the answer to the first question is there has been no use of the canal; and there will be no use of it as a canal. Mr. Minot stated Commissioner Pritchard made a point about objections from staff; he contacted the people who made those comments; the comments universally were that the property may be valuable for the County, but they had no understanding of what to vacate and whether they can expand the use of the easement or not from a canal to other uses. He stated the text of those objections does mention other uses possibly or selling the property, none of which is legally possible; so it brings it back to the issue of public use for that property and if there has been public use of the property as a canal; and the answer is no.

Commissioner Pritchard stated Mr. Minot presented a compelling argument; Commissioner Scarborough’s point is well taken; the property has been abandoned by the County; the canal exists as a word, it is not a canal; the easement says canal, but it is not a canal; and there is no way they can float anything in it because it is dirt. He stated he has been by there and seen it; and inquired if Mr. Minot is saying Mr. Hurt owns Lots 4 and 5 north and south of the easement; with Mr. Minot responding he owns Lot 4 fee simple title; he received a Quitclaim Deed from the party who has fee simple title to Lot 5 in 2000 as to any reversionary rights to the canal piece; so he does not own fee simple title to Lot 5. He stated property can be carved up in many ways; someone can take his property and say a third party can mine on the property, can cross it, or can have a drainage easement on it; and what the owner of Lot 5 did through negotiations with Mr. Hurt, was say as to any rights that Lot 5 has to the reversion, meaning what would be left if the canal piece is vacated, that it was transferred to Mr. Hurt in 2000. He stated they called that in law school bundled sticks; so the reversionary right that Lot 5 has to the canal piece was transferred to Mr. Hurt; and that deed is in the Board's package. Commissioner Pritchard stated a gentleman brought up the issue of drainage in the neighborhood; and inquired what are Mr. Hurt’s plans for the property should the Board approve the vacating; with Mr. Minot responding it is not for certain who is going to receive any rights in the event the canal piece is vacated; but for purposes of drainage or access or those types of things, he would refer the Board back to the Gateway plat. He stated the very northern portion of the plat is a piece that is titled Newfound Harbor Court that is dedicated for a full right-of-way purpose, which could be for access, drainage, etc.; there was no specific purpose dedication on Newfound Harbor Court; and it is identified on the plat as Newfound Harbor Court and has a spur off Newfound Harbor Drive showing a dead-end access into the property to the west. He stated immediately south of that is Lot 4 and then the canal; so on the north of the lot north of the canal is another right-of-way, which has broad implications as far as use and not the specific use of a canal, which is just south of that lot. He stated Mr. Hurt simply wants to clear up the issue; there is a canal adjacent to the property that he owns, which is also adjacent to property that he claims to own to the west, which he has had a house on for the last 15 years and claimed exclusive use for 17 years; and they need to clear that up because there are title issues associated with it. Mr. Minot stated instead of having a use agreement to use the canal piece for access with a lease with the County, it is all in some ways unclear as to what the canal piece is; but Mr. Hurt is leasing the canal piece in order to cross it in some way to get to his property; and he wanted to clear all that up. Commissioner Pritchard inquired if the Board were to vacate the easement, who might ownership go to and how would that be resolved; with Mr. Knox responding it has to be resolved in court; if Mr. Hurt owns Lot 4, he is going to get part of it; and if he is correct about having the reverter rights on Lot 5, it will go to Mr. Hurt also. Commissioner Pritchard stated the only issue the Board is faced with today is whether or not to consider the easement abandoned and whether it should vacate it and let the courts sort out the ownership. Mr. Knox stated the Board should restrict its concerns to whether it should be vacated or not because if there is an issue about ownership, there is no certainty that anybody can apply for a quitclaim deed that is before the Board today. He stated the real issue is the vacation.

Commissioner Carlson inquired if it is not vacated, can the Board surplus the property; with Mr. Knox responding no. Commissioner Carlson stated so it does not make a difference if it vacates it or not, vacating it would be ironed out in the courts; with Mr. Knox responding no, the title of what is left will be ironed out in the courts. Commissioner Carlson stated this all started by an encroachment by the applicant for his driveway; with Mr. Knox responding he does not know if that started it, but it is a factor. Commissioner Carlson inquired if that is what created the use agreement; with Mr. Knox responding that is what brought Mr. Hurt here to talk to the Board today.

Commissioner Pritchard stated the Board has heard all sides; the issue is vacating the property; and he will move to vacate.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to adopt Resolution vacating a canal in Gateway, Unit No. 1 as petitioned by Jack D. Hurt, represented by Attorney Michael Minot.

Chair Higgs stated she is opposed to the vacating as it is public property that may have a public use in the future. Commissioner Carlson stated she agrees. Commissioner Scarborough stated the public use is restricted to the definition of canal; if staff is willing to tell him they have intentions to put a canal there, even though it appears to be abandoned, he will vote contrary to the motion; and inquired if staff is going to put a canal in there; with Mr. Denninghoff responding he knows of no plans or efforts that would indicate a canal would be going there in the future.

Chair Higgs called for a vote on the motion. Motion carried and ordered; Commissioners Carlson and Higgs voted nay. (See page for Resolution No. 04-291.)

The meeting recessed at 10:37 a.m., and reconvened at 10:49 p.m.

PUBLIC HEARING, RE: RESOLUTION VACATING ALLEY IN CRYSTAL LAKES
SUBDIVISION - FRANK AND SUSAN PANZARINO AND LISA AND CARMELO
PULEIO

Chair Higgs called for the public hearing to consider a resolution vacating an alley in Crystal Lakes Subdivision, as petitioned by Frank and Susan Panzarino and Lisa and Carmelo Puleio. She stated they sent it to the community and understand there have been no objections; and inquired if there are any objections from staff.

Transportation Engineering Director John Denninghoff stated he would not characterize it as an objection, but would say it is a concern about creating a dead-end alley that does not go the length of the block. He stated the concept is to approach the owners throughout the block and ask if they would join in a vacation of the entire alleyway, which would be clean; but the problem is if any of them do not wish to pursue it; or if they all pursue it, staff would have to re-advertise to affect that, which would delay action on this petition.

Chair Higgs stated the Board could move forward with the application since there are no specific objections other than creating a blockage to the alley. Commissioner Carlson stated if staff can get all the owners to petition to vacate the alley it would be more cost effective as it costs $640 to go through the process. Chair Higgs stated she has no objections.

There being no further comments or objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Colon, to adopt Resolution vacating alley in Crystal Lakes Subdivision, as petitioned by Frank and Susan Panzarino and Lisa and Carmelo Puleio. Motion carried and ordered unanimously. (See page for Resolution No. 04-292.)

PUBLIC HEARING, RE: RESOLUTION VACATING PORTION OF UTILITY EASEMENT
IN GRANDE BAY, AND ACCEPT REPLACEMENT EASEMENT - ELMER SEALING

Chair Higgs called for the public hearing to consider a resolution vacating a portion of a utility easement in Grande Bay, as petition by Elmer Sealing, and to accept a replacement easement. She inquired if there were any objections; with Transportation Engineering Director John Denninghoff responding there were no objections; the only concerns that were raised had to do with title and overlapping easements; and Dick Martens, Director of Water Resources, which holds all the easements in the area, indicated there is no conflict and he feels comfortable moving forward with the request.

There being no objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution vacating portion of a utility easement in Grande Bay, as petitioned by Elmer F. Sealing, and to accept a replacement Easement. Motion carried and ordered unanimously. (See pages for Resolution No. 04-292 and Easement.)

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTERS 226-26 THROUGH 226-33
AND 42-71 THROUGH 42-100, EMERGENCY MEDICAL SERVICES

Chair Higgs called for the public hearing to consider an ordinance amending Chapters 226-26 through 226.33 and 42-71 through 42-100, relating to emergency medical services.

County Manager Tom Jenkins requested the ordinance be withdrawn for re-advertising.

The Board approved withdrawal of the proposed ordinance amending emergency medical services provisions from the Agenda, and authorized staff to re-advertise the public hearing.

PUBLIC HEARING, RE: AMENDMENTS TO MERIT SYSTEM POLICY II, PAY PLAN, AND
BCC POLICY XIII, NATURAL DISASTER PERSONNEL RULES

Chair Higgs called for the public hearing to consider amendments to Merit System Policy II, Pay Plan, and BCC Policy XIII, Natural Disaster Personnel Rules.

County Manager Tom Jenkins advised the Board has had a Policy on the books since 1999 that essentially says during a hurricane when an evacuation is ordered and County offices are closed for business and employees are sent home, those County employees that remain on the job in response to the hurricane will get additional pay equivalent to what is paid for holidays. He stated it is based on the consideration that employees who were sent home were still getting paid, so those who continue to work should be compensated fairly; and the Policy had not been a problem previously until they experienced Hurricane Frances. He stated Hurricane Frances was a Category 4 and almost a Category 5 hurricane; it lingered off the coast for several days before it arrived; and it required a significant amount of staff resources to respond to it. He stated the County was in a state of emergency Thursday, Friday, Saturday, Sunday, Monday, and Tuesday; if the Board recalls from past hurricanes, that is an extraordinary circumstance; and the long duration of Hurricane Frances and the cost associated with it caused him and the Human Resources Director to revisit the current Policy to recommend some changes to it, which would be perhaps more cost effective. Mr. Jenkins advised the classification of employees as hourly or salaried is based on the Federal Fair Labor Standards and criteria; it is not necessarily based on an income level; there are salaried employees actually making less money than some hourly employees; but what they have done is propose some revisions to the Personnel Policy.
He stated he can go through those specifically for the Board if it would like; and they are also in the handout.

Commissioner Scarborough stated the Board can proceed with the policy, but later in the meeting it is going to be talking about what happened; and maybe it would be beneficial for the Board to listen now and make its final decision after it goes through the comments. He stated the Board is going to be re-addressing it in part; it is what it will do in the future; but the analysis of what the comments are of what happened and what is being addressed now would weigh in his decision of how to structure it.

Chair Higgs stated they all read the information about what the Board will be discussing later on; it seems that the issue of what should be developed as a policy is separate from going back over the events; the Board is going to be making a decision on the Policy; and inquired if Commissioner Scarborough is requesting it be put off until later. Commissioner Scarborough stated Mr. Jenkins’ comments referred to the events of the hurricanes; that is coming up later; he said the thought process for the changes in the Policy came from events of the hurricanes and his need to change; and the Board is going to be talking about the events of those hurricanes later in the meeting. He stated it may be beneficial to look at what happened during the hurricanes then develop the Policy after that discussion is exhausted.

Walter Pine of Titusville stated he agrees with Commissioner Scarborough, but more than just going to the end of the meeting, there are critiques being done on the events and if the Board discovers there are contradictory issues that come up during the critiques of the events, it may have to go back and revisit it; so he would suggest any of the changes be taken up at the time the critiques are completed so the Board can do all the changes. He stated in the definitions area, it talks about natural disasters; there should be a clear specification for non-natural disasters also; in this day and age, there is a potential for non-natural disasters to occur; terrorism is talked about all the time; so it should apply to non-natural disasters as well and he would encourage the Board that it be done. He stated on the compensation issue about going from double time to time and a half, there is no indication whether that counts the hours a person has already put in during the week; if an event occurs on a Monday, they would most likely meet the 40 hours during the week and are less likely to reach the time and a half than if it occurs on a Friday; so the hours should be calculated during the period of the actual emergency event. He stated there is certainly a difficulty; it is an expense to the people who come to work; 24 hours of emergency is not as expensive to them as the hurricanes have been because they came in, worked, and had damages at home they had to bring somebody in to repair; so the Board needs to recognize that; there is a point where it should go to time and a half; and there is also a point where it should go to double time. He stated in regards to the use of annual leave during an emergency, because of accrual of leave and the way it works, some people will have annual leave and some will not; non-paid leave should be the only option available, otherwise some people will be in a situation of having to use annual leave; and other people who do not have annual leave will get non-paid leave. He stated everybody should be treated equally under the policy; there should be a provision where they may apply to use other leave types if they wish to get paid for that period of time; and that is their choice, but it should not be imposed
upon them. Mr. Pine stated as far as salaried employees and the compensations being given to them at time and a half or additional compensation, when they took the job as a salaried employee, they took on all the responsibilities; that is the whole list, emergencies, normal activities, and everything; and they should not come in and say they are only here for the every day issues. He stated if their contract says that, it is one thing; if they are salaried employees, they came here for the whole bailiwick, not just for what they pick and choose; and they should not say they want to get paid more and renegotiate their contracts because there is an emergency event. He stated they came on and contract as salaried employees for the term of that event; some people get hurt by that, but others benefit; and if they make an agreement, they should stick to it. He stated as far as he is concerned that should be the issue. He stated there should be a cap as far as overtime; the Board does not want people putting in unlimited amounts of overtime as they may become tired, and safety may become an issue, and errors may come up. Mr. Pine stated there should be a cap on the amount of time somebody has to endure during an emergency; it is a very emotionally stressful time; if they go too far and push the people too long, there are going to be accidents and injuries that occur; and the County would be liable for that; so he thinks there should be a cap on the amount of overtime and on the amount of straight hours. He stated in other words, a person can only work an eight-hour, ten-hour, or twelve-hour shift during the period of emergency; and that is to the benefit of the public to insure the public gets the best service. He stated it is also to insure the safety of the public and the employees; that is a necessity; and the Board needs to consider those issues.

Chair Higgs inquired if it is the desire of the Board to continue the item until later in the meeting; with Commissioner Scarborough responding he would find it helpful.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to move Item IV.F. to be discussed with Items VI.E.1, 2, and 3 later in the meeting. Motion carried and ordered unanimously.

APPROVAL, RE: TRANSFER OF FUNDS IN SHERIFF’S BUDGET

Commissioner Scarborough stated he did not confer with the Sheriff’s Office on the internal transfer of existing funds between salary, operating, and capital in the current year’s budget for full-time equivalents, but he did get information on the transfer of funds from Circles of Care to the Sheriff’s budget for mental health services at the Detention Center. He stated there are three sentences referencing large numbers, and he wants to understand what is occurring.

Chair Higgs advised at the first budget hearing Commander Futch explained the item, and it was their assumption that the Board approved those items, but Ms. Barker will explain it.

Sheriff’s Finance Director Deborah Barker introduced Orville Clay, Program Director for the new Mental Health Services Unit at the Brevard County Detention Center; and stated Mr. Clay has joined her this morning to help with any questions the Board may have regarding the Mental Health Unit. She stated the items were in the bill folder, but Mr. Jenkins asked that they be pulled out and put in an Agenda Report, perhaps because Commissioner Scarborough asked that they be pulled. Ms. Barker stated the $2.168 million is a request for reallocation of existing funds that are in the Sheriff’s budget; so there is a net effect and the Board is not giving the Sheriff any more money. She stated they are reallocating funds that were approved during the budget process in September to go forward with self-op of the medical services from the operational line item to pay the contracted medical provider, Prison Health Services (PHS), to wages to pay the people they hired to provide medical and mental health services at the Detention Center. She stated it is reallocation of existing funds not to pay a contract service and to pay the people they hired to provide those services.

Commissioner Scarborough stated the Agenda Report says transfer from operation to salary of $2.1 million and some change, then it says transfer from operation to capital, $24,000; he has two numbers rather than one; and inquired what is the meaning of it; with Ms. Barker responding the $2.168 million is needed for personnel costs and expenses, and the $24,000 is needed for capital equipment, so they are moving part of the $2.1 million to wages and $24,000 to capital medical expenses.

Commissioner Carlson requested clarification of the 42 full-time equivalents; with Ms. Barker responding the total is 57 people that they will be hiring, which comes to an equivalent of 42 full-time positions because they are not all full-time; and some are full-time, some part-time, some on call, and some per diem. She stated when equating 57 people to full time, it comes to 42 full-time positions.

Commissioner Colon stated she understands that part, but has a question; there is a new sheriff who has been elected; and inquired what were the discussions with him in regards to this issue, how he wants his Department run, and the kinds of numbers he wants. She stated she is concerned about any decisions being made right now for him that will affect him in the future; and would like to get some feedback on that. Ms. Barker stated she has not personally had discussions with Mr. Parker and does not know if Mr. Futch or Mr. Crawford has; but they are both unavailable due to personal illnesses in their families. She stated she does know it was on the Agenda and came before the Board on September 14, 2004; and they discussed going to self-op and have gone forward with that with the approval of the budget. Commissioner Colon inquired if it can wait two weeks; with Ms. Barker responding the people are on board. Chair Higgs stated Sheriff Williams is in office until January 2005; it will not preclude the new sheriff if he wishes to do it differently; and the contract can be handled at that time. Ms. Barker stated if Sheriff-elect Parker decides to do something else, that is his option when it becomes his budget on January 4, 2005.

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to approve transfer of $122,000 allocated to Circles of Care to the Sheriff’s Office for mental health services at the Detention Center. Motion carried and ordered unanimously.

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to approve transfer of $2,158,921 from operating to salary and $24,000 from Operating to Capital in the Sheriff’s current budget to accommodate the filling of positions equating to 42 full-time equivalents. Motion carried and ordered unanimously.

STAFF DIRECTION, RE: EXPIRATION DATES FOR WORK AUTHORIZED UNDER
RESOLUTIONS E04-01 AND E04-0248 FOR VULNERABLE BEACH STRUCTURES

Chair Higgs stated it would seem logical that Option 1, which is the March 1 deadline, would be the date the Board would want to pick; and if it wanted to go forward with any other, it would require amendments to the plan if the emergency cannot be taken care of prior to March 1.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve Option 1, completion of authorized projects by March 1, 2005 before the next sea turtle nesting season.

Commissioner Pritchard stated the Board can readdress it in February and see what the status is; and the concern he has is if the Board does not do something to stabilize the dune system and start addition of sand. He stated he knows it was brought out at the last zoning meeting having to fluff six feet of sand for the turtle nesting; so the Board needs to make sure there is sand there so the turtles can dig into it and rehabilitate their breed.

Chair Higgs stated the item is to recognize the end date of what they are doing right now. Commissioner Pritchard stated he supports it. Chair Higgs called for a vote on the motion. Motion carried and ordered unanimously.

DISCUSSION, RE: FUNDS FOR BEACH RESTORATION PROJECTS

County Manager Tom Jenkins advised Natural Resources Management Director Ernie Brown and Virginia Barker have a somewhat related item dealing with the beaches if the Board wants to bring it up now. He noted it is a recent opportunity to obtain funds.

Virginia Barker advised the Corps of Engineers plans to renourish the north and south reaches to replace the volume of sand lost during the hurricanes; while the dredges are mobilized in the area, staff wants to reconstruct the full template of the north and south reach project areas and needs to assure the Corps that the County has funds in place to do that as soon as possible. She stated there is 100% federal cost share for the sand that was lost during the hurricanes; there will be a local match requirement for additional sand that staff wants to place to rebuild the full template of the project areas; and the County’s cost share would be about 20%, or anticipated at $1.9 million. She stated those funds are budgeted in the Tourist Development Council’s budget; however, it specifies the reconstruction schedule as 2006-07 for the north reach and 2008-09 for the south reach. She stated staff wants to make sure it has the Board’s blessing to spend those funds earlier to get more federal cash match, get the sand on the beach
earlier, provide protection to homeowners earlier, and have no risk of having federal funds available.

Chair Higgs inquired if the County will have funds available should the mid reach be approved; with Ms. Barker responding they will have more funds available for the mid reach doing it this way than they would otherwise.

Motion by Commissioner Carlson, to approve use of beach improvement funds in the amount of $1,947,598 allocated in the TDC FY 2004-05 budget.

Chair Higgs inquired how much would be left if the money is used; with Ms. Barker responding there is $2.7 million cash in the TDC budget, but there is also bonding ability with the future revenues; and whatever they need to do the mid reach, they will figure out how to do that. Chair Higgs stated there are a number of property owners south of the south reach who believe that their beach and dune line are greatly in need of restoration; and inquired where would staff look to for funds should they have an opportunity to do some of that. Ms. Barker inquired if Chair Higgs is referring to local match for FEMA emergency berms or other projects; with Chair Higgs responding the Board has to look to FEMA emergency berms; it may have an opportunity, through the State, if the Legislature meets in special session, to allocate funds to match the State’s money; and inquired where would staff look for those funds if the Board authorizes this expenditure. Ms. Barker stated the FEMA emergency berms are specific restoration of individual private property owners’ dunes; and there is a difference in that sort of project and a major beach restoration project that looks at Countywide and larger economic benefits to the entire community of restoring the beach compared to the economic benefits to individual property owners for restoring their dunes. She stated staff has to look at each project specifically and who benefits; and the Board will have to determine how it wants to divide the costs. Chair Higgs stated on the projects currently approved by the court, the Board has made the determination of a public benefit to use TDC dollars; and she is trying to raise the issue with the Board that if it goes beyond the berms to a major beach restoration project, which may be an activity of the Legislature as early as December, and it commits all the funds, it will not have that funding stream to fund a project, which would be equivalent to the Corps’ current project. She stated the Board may face that need down the road as the south beaches south of Melbourne Beach were severely eroded in the recent storms.

Commissioner Scarborough stated 20% would end up being $1.37 million; there is $3.9 million; so more than half will be left. He stated Chair Higgs sits on the TDC Board and is familiar with the south beaches; he is reticent to vote on the allocation of $1.3 million when it is not on the Agenda and people who may have an interest do not know the Board is voting on it; and unless there is a real degree of emergency and a major loss of funding, it frightens him. Ms. Barker stated the urgency is in order to get the project constructed before turtle nesting season, staff needs to push the Corps to get its plans and specifications done immediately and get the project out to bid before the end of the month. She stated the Corps will not prepare plans and specifications that include restoring the beach to its full profile width unless it has assurances from the County that it is going to come up with the local match to do so; and that is the urgent nature of the request. Commissioner Scarborough inquired if it has to be voted on today; with Ms. Barker responding unless the Board wants to do it at the induction meeting next week.

Commissioner Carlson stated if the Board feels uncomfortable about obligating TDC dollars, it can take the funds from Reserves, but the time line is essential. Ms. Barker stated the funds are already obligated for the north and south reach in the TDC budget, and the only difference is the time line.

Commissioner Pritchard stated if anything, he found that not having a viable beach harms the County in a variety of ways, not only the individuals who have homes on the beach, but also the businesses; and the amount of economic loss is yet to be calculated. He stated all the Board would be doing is moving the time line; and he supports the spending at this time.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve use of $1,947,598 in TDC Beach Improvement funds for renourishment of the north and south reaches to their full construction template in coordination with the 100% federal Rehabilitation Assistance Program.

Commissioner Scarborough inquired if Chair Higgs sees anything that will have their phones ringing this afternoon that something has gone amiss with what the Board is doing here; with Chair Higgs responding she cannot say what will make the phones ring, but can tell the Board that the most severely eroded beaches are Melbourne Beach and south of there at the tail end of the south reach. She stated the Board is going to be challenged, particularly if the Legislature does allocate funds to restore beaches, and it is going to grapple with the subject and find people sitting in the audience in large numbers wanting it to restore the beaches. Commissioner Scarborough inquired if Chair Higgs is saying by using the money for the match, it is moving it into an area that is less stressed; and when he viewed it, there was a substantial difference with someone having a home sitting five feet from a dune that drops 15 to 20 feet and somebody who has a bad stretch of beach in front of his or her home. He inquired if Chair Higgs is saying the Board may be moving the money to an area that is less vulnerable; with Chair Higgs responding the area is less vulnerable, but the mid reach is very vulnerable; it is difficult to weigh one child against the other because the Board has to complete the project; but if the State says it is going to put $50 million into beach restoration and Brevard is eligible to have $10 million but has to come up with $2 million in matching funds, and the Board has allocated all the funds to this project, it is going to be faced with a difficult decision because people with escarpments that are straight down have properties that are vulnerable. Commissioner Scarborough stated there are people who could lose their homes if they still have homes; because of the nature of the dune their homes are sitting closer to a drop-off of 15 to 20 feet; there is no way it is going to have massive damages with no storm event; it is just going to erode away; and with that in mind, he would like to have more information on the impacts and opportunities, so he will move to table the item.

Motion by Commissioner Scarborough, to table the request to use TDC funds for renourishment of the north and south reaches to their full construction template.

Commissioner Colon stated the tabling supersedes the previous motion. Chair Higgs stated she did not hear a second to the motion to table. Commissioner Scarborough stated he will remove the motion to table because it cuts off discussion; and requested the Chair let Commissioner Colon talk.

Commissioner Colon inquired if TDC knew that this item was coming before the Board; and did a phone call take place out of professional courtesy or not. Mike McGarry advised at the last TDC meeting, he had not gotten an official request from the Corps that the County had to make a decision; the Corps had not officially authorized the emergency funding yet, but he brought the concept to the last TDC meeting; and it voted to authorize him to pursue the option and if necessary to go directly to the Board of County Commissioners for authorization if the time line did not allow a second visit to the TDC Board to ask if it was okay to spend the money a year or so early. Mr. McGarry stated the TDC authorized him to take it directly to the Board of County Commissioners in the essence of timeliness; he spoke with Rob Varley yesterday and he felt it was in the best interest of the shore protection project and was in support of it; and he knew it was coming to the Board today.

Chair Higgs inquired what has been discussed at the State level in terms of local match for any State monies that may come up; with Ms. Barker responding staff has no idea what the State might propose; but they can look at what the State did after Hurricane Opal in the Panhandle, which is the only time the State had significantly come forward with something outside of the box like it would be considering this time. Ms. Barker stated for that event, the State found $30 million to do major projects in the Panhandle; because so much of Florida has been impacted all at once this season, the project that was 100% State funded is unlikely to be that way this time; but since the Legislature has not discussed it, Department of Environmental Protection staff has no idea what to anticipate. She noted the State suggested perhaps the Legislature would consider a 50/50 local match requirement, yet the only precedent is no local match requirement; and staff has no idea how much of the shoreline the State would consider.

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

Chair Higgs stated she voted nay as she did at the TDC meeting.

ACKNOWLEDGE RECEIPT OF ANNEXATION #SSA-14-2004 FROM CITY OF TITUSVILLE,
AND COMPREHENSIVE PLAN AMENDMENT, RE: PROPERTY ON RIVEREDGE DRIVE
EAST OF U.S. 1 AND WEST OF THE INDIAN RIVER LAGOON

Laura Ward of Titusville, member of the Riveredge Drive Neighborhood Group, requested the Board allow staff to make comments to Department of Community Affairs on the annexation by the City of Titusville because things are moving in the right direction in the area now with the small area planning going on by the City of Titusville. She stated the annexation plays into that planning effort; and comments from the County should be made part of the record. She noted staff could prepare them relatively simply; and requested the Board's consideration to allow it.

Commissioner Scarborough advised the Board invested some time and effort in small area planning; it is not to comment negatively, but comment that it is part of the bigger picture and would be part of the record; and Todd Corwin said he could do that and get it out this week.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to acknowledge receipt of Annexation #SSA-14-2004 from the City of Titusville, and Comprehensive Plan amendment for property on Riveredge Drive, east of U.S. 1 and west of the Indian River Lagoon; and authorize staff to send comments to Department of Community Affairs. Motion carried and ordered unanimously.

APPROVAL, RE: ANSIN ROAD SUPPLY FACILITY FOR FIRE RESCUE/SPUR TRACK
AND EASEMENT WAIVERS

Chair Higgs advised there have been identified easements; she does not know the size of each, but they are significant; and suggested asking the owner to reduce the price since there are encumbrances that have been identified and parts of the property cannot be used.

Transportation Engineering Director John Denninghoff advised in the case of the railroad spur, that is an encumbrance that is not a significant impact; staff feels it is a plus in that it gives the County capacity to do something with railroad deliveries that it does not have elsewhere; and in the case of the other easements, those are access easements that are not in an area that is going to impact the use of the property. He stated he spoke with one of the County appraisers who did have an opportunity to do a thorough examination of that and was of the opinion there was no significant change in the value of the property.

Assistant County Attorney Christine Lepore advised the appraisal did include the railroad spur, so that was taken into account. Chair Higgs inquired if it included the other two easements; with Ms. Lepore responding she does not believe so, but they do not impact the use and are strictly along the perimeter of the eastern boundary.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to waive objection to exceptions from coverage in the title commitment for the railroad spur track and easements located with the property on Ansin Road purchased from 1 2 3 Corporation for the Fire Rescue supply facility. Motion carried and ordered; Commissioner Higgs voting nay.

PERMISSION TO BID, AWARD BID, EXECUTE CONTRACT, AND IDENTIFY FUNDING
SOURCE, RE: FEMA EMERGENCY BEACH BERM PROJECT

Virginia Barker, Natural Resources Management, advised the item is to help people with the most vulnerable structures along the oceanfront with construction of FEMA emergency berms; and staff received a list from FEMA that included all the properties it will assist. Ms. Barker stated FEMA will provide 90% of the cost; the State will provide 5% of the cost for constructing small dune projects to restore the dune at the properties that are most vulnerable to storm damage; and staff is requesting permission to advertise for bids to construct the emergency berms, award the bids, execute the Contracts, and identify funding of the local share of 5%. She stated they were putting together the bid specifications and contract language at the last minute, and there were some changes in the scope of work that staff needed to revise.

Commissioner Pritchard stated he has been talking to Ms. Barker about the fancy sandbags because it is more than just a sandbag, which people normally think of; it is a structure that is 100 feet long and has multiple pouches to it; then it is filled with sand. He stated his concern is they are forever putting more sand on the beach only to have it wash away; the type of system staff is going to seek in the RFP would prevent erosion of the dune by having the system of individual sandbags or large geotubes in place; and inquired if that is what the RFP will be seeking; with Ms. Barker responding the RFP is for sand only. Commissioner Pritchard inquired how is just sand going to prevent further erosion of the dune; stated he is interested in protecting the dune because once that is breached the next dune is Highway A1A; and the Board should not set its defense on A1A. He stated it needs to set its defense on the beach in terms of renourishing the dune; and he hates to just put sand on the beach when inevitably, through northeast storms or hurricanes, it is going to wash away again and affect the dune. He stated sand will leave and come back, but the dune becomes the significant factor in his concern. Ms. Barker stated Commissioner Pritchard is correct that along the shoreline they have a chronic erosion problem; staff does not know how long the sand will last, but it is what FEMA will participate in; and it is a Band Aid that is designed to allow people to catch their breaths and figure out what they want to do in terms of long-term protection. Commissioner Pritchard inquired what about FEMA considering whatever the cost would be to renourish the beach with geotubes and consider what the long-term savings would be rather than to simply having sand that it knows will wash away. Ms. Barker stated the Category B assistance that FEMA berms fall under is strictly for sand only; there is the Hazard Mitigation Grant Program that is competitive Statewide; and what the Board is talking about might be a competitive grant request, but that is something that is not applicable under Category B funding. Commissioner Pritchard inquired if the County is faced with accepting something it knows is going to wash away because there are dollars available to use it and it would provide a temporary solution instead of FEMA spending its money more wisely by making the grant available that would provide a structure that would prevent further dune erosion. Ms. Barker stated if people were to install sandbag systems, they would need to cover them with an adequate amount of sand; and the volume that would be placed by the FEMA berms is approximately the volume they would need to construct a sand bag system and cover it adequately to protect turtle nesting. She noted the sand could be used by anyone who wanted to install a sand bag system; and that will help with the installation costs. Commissioner Pritchard inquired if the opportunity still exists for geotube or sandbag systems that the individual could participate in and get a permit for; with Ms. Barker responding there are approximately 51 property owners that qualify under the County’s definition of vulnerable structures to place sandbag systems; she would guess a majority of them are getting the FEMA sand; so the project will assist them in the recovery effort. Commissioner Pritchard inquired if the installation cost of $400 a foot would be offset by the sand available for that; with Ms. Barker responding it will help; otherwise they would have to purchase upland sand to fill the bags and cover them. Commissioner Pritchard stated the dune is more than a personal issue to individual property owners; it is the barrier because A1A is next; and inquired if there is any other funding available. He stated he knows the Board tapped into the TDC funds for sand renourishment in other areas; and inquired if there are other sources the Board has to offset the cost of a stabilization system. He stated if it is $400 a foot and the sand is going to equal $100 a foot, and the property owner would invest $200 a foot, that would leave $100 a foot from other sources; and inquired if money is available anywhere through grants , TDC, or other accounts that the Board may have for beach renourishment. Ms. Barker stated the TDC dollars are for beach and dune restoration Countywide, so the TDC would need to look at the kind of request the Board is considering; the State interim dune project that Commissioner Higgs spoke about is sand only; and the only source of funds she is aware of that might be applicable to installation of sandbag systems would be the FEMA Hazard Mitigation Grant Program.

Chair Higgs stated the restoration project that has gone south of the Port through the north reach and some day may go from the mid reach into the south reach is the best option the Board has for keeping the beaches the type that people want to live on and the public can use; eventually that kind of project is going to have to happen further south; the Legislature is going to deal with that subject; and the Board is going to have to grapple with ways of meeting the match in that because it may not have the TDC sources readily available. She stated the Board has seen the public purpose in the north end; it said it was a public purpose and the way to keep the structures there; and it saw it survive quite well in the hurricanes. She stated even in the face of four storms, the restored beaches did quite well; so it is not pie in the sky solution, and she is hopeful the Legislature will deal with it and the Board will find a way to do the match; but individual property owners have the option of protecting their properties in other ways just as she has an opportunity to put up a fence to protect her property. She stated this project is a no-brainer to assist the people who are there; and the Board needs to get the matching funds, as it does not want to turn down the FEMA berm funds.

Commissioner Pritchard stated his concern and the Board’s concern is to preserve the dune so it becomes the barrier; and if the money will help the folks that have property adjacent to the beach to preserve the berm in a more substantial way by installing a system instead of just sand, then the Board needs to encourage their participation. He stated that means finding another revenue stream that would help; if the property owners were obligated to $200 a foot and have a 100-foot lot, that would be $20,000 they would have to come up with; most would spend that in a heartbeat; and it is an encouragement to install a more permanent structure so they do not go through the escarpment and having a 15-foot drop and breach in the dune or any further problems.

Commissioner Carlson inquired if the 51 homeowners that will get access to those dollars want to put sandbag systems on their properties, will they be able to use the sand to fill their sandbags, or do they have to use it to cover the sandbags. Ms. Barker stated the State and federal permit requirements require them to fill the bags with upland sand; as far as the County is concerned, they can use that sand to fill their bags; but the State and federal agencies would object to that; however, they can use the FEMA sand to cover their bags.

Commissioner Scarborough advised there is mention of an MSTU that says, “Because the final project cost and the list of properties to be protected by the berm will not be determined before the project is underway, the details of such an MSTU might best be determined after the project is complete.” He inquired if that means when the project is totally completed with all the sand distributed and everything is over. Ms. Barker stated because they will be working in the backyards of people, they have to get permission from every person before constructing the project; and there may be some people who do not want the sand or do not want the government in their yards. Commissioner Scarborough stated historically staff has gone out and polled the people for MSTU’s and decided from that poll whether or not to move forward. Ms. Barker stated that is for MSBU’s. Chair Higgs advised MSTU’s require a different process and a referendum, if she recalls what the Charter says. Commissioner Scarborough stated so the Board is going to front the cost of the local match with general revenue and come back and create an MSTU, not for the purpose of recapturing the general revenue funds but for future maintenance; and inquired if that is what is being suggested; with Ms. Barker responding no, it is to recapture the local share of the initial construction. Commissioner Scarborough stated staff needs to be up front with the people it is going to be asking to fund the project or they may say it is nice but they do not want to pay the County back for it. Ms. Barker stated they will know up front. Commissioner Scarborough inquired if the Board is talking about an MSBU rather than MSTU if it is doing a single project rather than constant maintenance. He stated when there are specific projects, they are usually MSBU’s; and the MSTU’s are for constant projects such as deputies and ongoing services. Chair Higgs stated perhaps Ms. Barker can explain why they chose MSTU instead of MSBU. Commissioner Scarborough stated he is trying to figure out what was being suggested and what time they will broach the subject with the public, because he does not understand doing it after the act and saying the County wants them to pay it back. Ms. Barker stated their thought was, when they go to each property owner to get permission to put sand in their yards, they would get their signatures that they will participate in the MSTU or MSBU or whatever the Board selects. Commissioner Scarborough inquired what happens if some of them say yes and some say no; with Chair Higgs responding they can be left out of the MSTU but an MSBU is compulsory. Commissioner Scarborough stated he would like more information on that issue. Chair Higgs stated the Board needs to approve the project; with Commissioner Scarborough stating that is okay, but he wants more analysis on the MSBU, MSTU, and when staff will broach the subject to the community.

Commissioner Carlson inquired if the Board needs to have the dollars obligated in some form so it does not hold up anything else. County Manager Tom Jenkins stated he is not aware of any money that is available. Commissioner Carlson inquired about reserves; with Mr. Jenkins responding the Board set a goal to replenish the reserves and not deplete them. Commissioner Carlson stated she knows that, but it can replenish it back, because there is a timeline issue.

Commissioner Colon stated she is concerned because they have the north and south reaches; she is trying to be a team player; and inquired what happens to her area. Commissioner Carlson inquired if Commissioner Colon is talking about the mid reach; with Commissioner Colon responding yes. Commissioner Carlson stated her area is in the mid reach also. Commissioner Colon stated they are not getting any dollars for the mid reach. Commissioner Carlson stated that is because environmental agencies are holding up the whole thing. Commissioner Colon stated when it comes to a balance, she does not see it; she is trying to be a team player and knows the south has been hit; but they have been hit just as bad in the mid reach. She stated she will support it, but they need to be a little more aggressive. She stated she supports what Chairman Pritchard said, and shame on the State and federal governments because they keep putting Band-Aids on things; and she prefers them not to do anything if they are not allowing people to think outside the box. She stated they need to think outside of the box and consider whatever new procedures they have with geo-tech or whatever. She stated a few years ago people from the Villagers came before the Board and said if they had a horrible hurricane, they were going down; there was no compassion from the community; it was, “oh no, the turtles”; and she is all for the turtles, but inquired how about human beings. Commissioner Colon stated now they have seen a horrible problem with two hurricanes that hit Brevard County; that is definitely historical; and inquired what happens to that kind of compassion and trying to find a way to protect the condominiums. She stated the Board did everything in its power to make sure that did not happen because of the controversy of whether they were protecting the turtles or not; and inquired about technology they are using in other places. She stated she hopes the State allows the County to use those funds; but it is up to the Board to tell the State and not just send a letter from the Board to say let it use other technologies available because if there is another hurricane, there goes the water and the folks on the beach side. She stated taxpayers would like the Board to make decisions that are smart and not just for now, but for the future.

Chair Higgs stated the Villagers is covered by the south reach project; one of the things that they had on their side was that they were restored under the south reach project; the Villagers solution that was reached in terms of the geo-tubes is the same thing that is available to folks who are now impacted by the storms; and there are opportunities for those people. She stated the question here is how does the Board proceed to allow people to get the sand they want and assure it has the funding stream to make the match; and she does not think anyone wants to turn them down.

Commissioner Scarborough stated it is a great match because the County only has to come up with 5%; it cannot walk away from 95% of the money being provided; however, the problem is the MSBU or MSTU. He inquired if the MSBU or MSTU is put out in front, will the County lose the opportunity to get the funds and create other problems for itself. He stated the only place to look for funds is uncommitted reserves. Chair Higgs stated there is still a little left in the TDC budget. Commissioner Scarborough inquired how would the Board handle State funds that may come in later if it handles these today, as the people have just as much right to look to the Board for restoration of their beachfront. Commissioner Carlson stated the list has 51 qualified based on what FEMA told the County. Commissioner Scarborough inquired if the Board wants to allocate general revenue today. Commissioner Carlson stated she does not have a problem going forward with an MSTU if everyone is satisfied doing that; and they are going out to all eligible folks on the list and those in the mid reach, Satellite Beach, and Indian Harbour Beach. Commissioner Scarborough inquired if the MSTU will mess the County up because the recommendation he read is to wait on the MSTU until the project is completed. Mr. Jenkins stated that is a good idea. Commissioner Scarborough inquired if Mr. Jenkins agrees philosophically if the Board goes with the MSTU that it needs to put that as part of the motion rather than pulling from General Reserves; with Mr. Jenkins responding yes. Ms. Barker stated the funds are only available if they get the project built before the next turtle nesting season; and it is going to take contractors three or four months to build it. Commissioner Scarborough inquired how rapidly can the Board pass an MSTU; with Mr. Knox responding an MSTU requires a referendum, so the Board would have to call a special election; and it would take at least 90 days if it did that tomorrow. Commissioner Scarborough inquired if staff could poll the public on an MSBU; with Mr. Jenkins responding they could do an MSBU. Commissioner Scarborough inquired how rapidly can staff get the results back to get 66 and 2/3rds approval; with Ms. Busacca responding staff gives 30 days for the public to respond and some amount of time to pay; and the response sets up the public hearing process. Mr. Jenkins stated as long as they know they are going to get the funds and the MSBU passes, they can work out a loan. Commissioner Scarborough stated if the MSBU does not pass, the County would have already committed its dollars. Mr. Jenkins stated they need to do it as soon as possible. Commissioner Scarborough inquired if the MSBU is favored; with Mr. Jenkins responding yes.

Commissioner Colon inquired if the Board is being honest with the constituents and letting them know the technology is out there now, or is it going to put up a roadblock. Chair Higgs stated this is not a roadblock. Commissioner Carlson inquired what is the roadblock Commissioner Colon is referring to; with Commissioner Colon responding a perfect example is the Villagers’ issue and the kind of foundation it wanted to use at that time; but the Board did not feel it was the technology it wanted them to use; and that is where her concern is. She inquired what if they approve something and the Board says yes to it, then turns around and says no, it is not the way it wants them to go ahead and construct it.

Commissioner Carlson stated the Board does not know what the environmental agencies and fisheries and those guys are going to come down with in terms of the results of their analyses; there are more rocks on the beach in the mid reach than before the hurricanes; even though the Board has permission to put sand on the beach, it may not be able to put it over those rocks; that is the quagmire it is in right now; and she does not know how to get over that hurdle. She stated Congressman Weldon and other State legislators were involved; they are aware of the whole problem on the mid reach because that area is the most vulnerable; but if the Board can go to the residents and let them know up front through an MSBU process, that is probably the most diplomatic thing it can do. She stated not all the residents are impacted to the same extent as those 51 are; so she is not sure what the outcome of that is going to be.

Chair Higgs stated the MSBU would only go to those properties that are in the defined universe of folks who are eligible; so if people do not want to be in the MSBU and do not want the sand, they can say no, and they would not be in the universe of people who are eligible to vote on the MSBU. She stated it is self-selected who will be in the sand group; and staff is going to ask them anyway. Ms. Barker stated staff can ask them both questions at one time.

Commissioner Scarborough stated it needs to be expedited; staff needs to get it out and back faster; and if they only have 51 people, they can go door-to-door and make contact. He stated it is worth it to get it tied down before they lose the funds because of the turtle nesting season.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to grant permission to advertise for bids, award bids to the lowest responsible bidders, and authorize the Chair to execute the Contract with the acceptable bidders; and direct staff to go door-to-door asking the property owners about an MSBU to fund the cost of the project. Motion carried and ordered; Commissioner Colon voted nay.

Commissioner Pritchard stated Mr. Jenkins brought up a good point that the technology has evolved and the Board needs to get the State agencies on-board to enhance and quicken the permitting process. He stated Mr. Jenkins also suggested a Commissioner go to Tallahassee along with the Natural Resources Management Director to speak to the appropriate authorities, involve the beachside delegation that has a specific responsibility, and have meetings with the appropriate agencies to discuss the permitting of systems that will stabilize the dune system properly and speed up the process.

Motion by Commissioner Scarborough, to authorize the Chairman to make arrangements for a trip with staff to Tallahassee to meet with State agencies to discuss the permitting of systems that will stabilize the dune properly.

Chair Higgs stated the Board is going to have a workshop in January and could ask the State agencies to come to the County then all the Board members will be there. Mr. Jenkins stated he thinks they need to go to a higher level, and does not think the Board will get the Secretary at its workshop. Chair Higgs inquired why staff could not ask the Secretary or the head of the beach section, who she called the other day to discuss those issues. She stated the Board has a lot of citizens with vested interests who are interested in what the State officials have to say. Mr. Jenkins commented that is a good point. Commissioner Scarborough stated staff could try that first, and if it is not fruitful, he will make a contingency motion that the Chairman make arrangements to go to Tallahassee to meet with the Secretary.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to direct staff to contact the Secretary and request she attend a workshop in Brevard County, and if that is not possible, to authorize the Chairman and appropriate staff to travel to Tallahassee and meet with the Secretary. Motion carried and ordered unanimously.

The meeting recessed at 12:00 noon and reconvened at 1:04 p.m.

RESOLUTION, RE: TAX ABATEMENT APPLICATION FOR MEDSOLUTIONS, INC.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution qualifying MedSolutions, Inc. as an eligible business under the County’s Tax Abatement Program, and authorizing a public hearing to consider adopting an exemption ordinance. Motion carried and ordered unanimously. (See page for Resolution No. 04-294.)

RESOLUTION, RE: QUALIFYING EDC PROJECT #04-00193 AS AN ELIGIBLE
BUSINESS UNDER QUALIFIED TARGET INDUSTRY PROGRAM

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution declaring EDC Project #04-00193 as an eligible business under the State Qualified Target Industry Program. Motion carried and ordered unanimously. (See page for Resolution No. 04-295.)

AGREEMENTS TO EXTEND EXISTING CONTRACTS WITH STEWART B. CAPPS AND
JOHN L. SOILEAU, RE: SPECIAL MAGISTRATE SERVICES

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to execute Agreements to Extend Existing Contracts with Stewart B. Capps and John L. Soileau for special magistrate services for Code Enforcement, Contractor Licensing, and Nuisance Abatement. Motion carried and ordered unanimously. (See pages for Agreements.)

SALE AND PURCHASE CONTRACTS FROM JEN-LEE DEVELOPMENT, INC. AND FIRST
COAST INDUSTRIAL ELECTRONICS, INC., RE: SPACEPORT COMMERCE PARK

William Arnoff, representing Jen-Lee Developments, Inc., advised they currently have in the planning stage and getting ready to go under construction approximately 40,000 square feet of manufacturing distribution in the Industrial Park; and they also have in the planning stageand getting ready to go under construction at the Airport, a 20,000 square-foot hangar to bring in other people at the Airport, and planes that are needed. He stated several months ago they started to negotiate with another firm in order to do warehousing and packing; they determined that there was a piece of property that the Industrial Commission had available for sale in the Industrial Park that suited their needs; it was the right size and right location; and they placed an offer on it. He stated at that time there was another offer placed on the same property at the same time; they went before the Industrial Commission and submitted what they wanted to do and the other people did as well; there were ten or twelve members of the Commission at the meeting; and they said perhaps they could accommodate both of them because they were both bidding on the same piece of property. Mr. Arnoff stated they said if it was agreeable with both parties to go back and see if there was anything else in the Industrial Park that could suit them; and they both agreed. He stated the Industrial Commission reconvened a couple of weeks later; and he came back and said it was the only piece of property that he was interested in. Mr. Arnoff stated the other people made an offer on another piece of property adjacent to their existing facility; at that meeting, the Industrial Commission turned down their offer; and they also withdrew their offer on the same property they were bidding on. He stated the Industrial Commission voted to have his offer accepted and to send it on to the Board of County Commissioners; that was on a Friday; and on Monday they called him and informed him, without going through whatever they had to go through and all the meetings, that they had another offer on the same piece of property. He stated they are still standing; they increased their offer; and the Industrial Commission knows what they want to do and they are capable and available to do it.

Commissioner Scarborough stated Greg Lugar and Frank Kinney who is on the Industrial Commission came by to talk to him; Mr. Arnoff also came by and visited with him; and his feeling is the Board is getting these things coming to it outside of the loop. He stated he does not know if they are getting into a bidding war; the Board’s interest is to get as much as it can and get the highest wages in there; and he would like to refer this back to the Industrial Commission and request in the future that the items come to the Board of County Commissioners only after the recommending board has reviewed it. He stated Mr. Kinney impressed upon him that they spend tremendous amounts of time talking about moving different people to different areas; there are some people who were just put on the Commission who are knowledgeable; there are realtors who put their time in; and the Board would be ill advised to go ahead although he understands Mr. Arnoff probably has the amount that would net the most for the County. He stated the Board increased the Commission; and at this time he would like to refer it back to the Commission and have it look at it.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to direct the contracts for sale and purchase with Jen-Lee Development, Inc. be referred back to the Spaceport Commerce Park Authority; and request future items come to the Board of County Commissioners with recommendations after review by the Authority.

Chair Higgs stated it would seem logical that they would establish a time frame, a date for bids, etc. using the same process the Board does. Commissioner Scarborough stated it is becoming dynamic; they are running out of land and there are things occurring; Mr. Arnoff said he increased his offer; and from what he understands, the County would net the most from Mr. Arnoff, but if the Board wants to keep the process intact and make sure all is analyzed and get a good report, that is where it should head.

Commissioner Carlson inquired since it is an advisory board, does the Board of County Commissioners have the capacity to request it accept bids in a typical fashion as the County does it; with Commissioner Scarborough responding his problem with giving the Commission parameters is that it has different things that may be occurring in different ways than what the Board would see in a structured sense; the Board is the land seller; the land is there to be sold; the Park was developed for two purposes; and (1) is to get the park money back, and (2) to create a job base with good companies. Commissioner Carlson stated it is the same sort of scenario as the Economic Development Commission applications; so they could apply those and work with Economic Development Commission to come up with something. Commissioner Scarborough stated there are a number of good people on the Industrial Commission; there is an Economic Development Commission representative, Space Coast Development, the Port Authority, and Veronica Clifford who builds test equipment; so there are some knowledgeable people; and the Board should let them work it and would be happier in the end.

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

APPROVAL, RE: 2005 BOARD MEETING SCHEDULE

Commissioner Colon advised she has some dates she wants to run by the Commissioners. Commissioner Pritchard stated he also has a few dates that he was considering adjusting; but rather than get into discussion now and move things around, Commissioners could provide alternative dates for certain events, then do a composition. Chair Higgs suggested sending changes to the County Manager. Commissioner Pritchard stated they could do it that way, see how it washes out, and bring it back for discussion at the organization meeting. Chair Higgs stated the Board should give Commissioner-elect Voltz an opportunity to look at it also. Commissioner Carlson requested a joint meeting with the EELS Selection and Management Committee in January be added to the schedule.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to authorize staff to add a joint meeting with the EELS Selection and Management Committee in January 2005 to the Board’s meeting schedule. Motion carried and ordered unanimously.

Assistant County Manager Peggy Busacca advised the Board has tabled one item to January 11, 2005 meeting; and it would be helpful if staff could get approval of that meeting. Commissioner Pritchard stated he has no problem with January. Commissioner Colon stated she has a problem with January 6 but not January 11. Ms. Busacca stated the Board about a month ago approved the zoning meetings for January and February.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to accept the Board meeting scheduled for January and February 2005.

Commissioner Carlson inquired if changes could be made later to add the EELS workshop. Chair Higgs called for a vote on the motion. Motion carried and ordered unanimously.

ESTABLISH POLICY, RE: DESIGNATING OFFICIAL HURRICANE SHELTERS AND
USE OF ALL NON-SHELTER FACILITIES DURING HURRICANES

Walter Pine of Titusville stated the issue of the shelters is an extremely important issue; there are few times when public policy is directly involved in what may be lifesaving activities; and the determination of the standards for the shelters is one of those times. He stated one of the major problems they have had is getting public records; he has distributed to the Commissioners a copy of an email that he sent to Mr. Lay this morning; yesterday he was called and told that he would be allowed to inspect the records or the inspection reports for the shelters; and he has been asking for copies of the documents since the hurricanes occurred. He stated the law requires that the Board give them to him because they take an oath to support the Constitution; that Constitution, Article I, Section 24 is where those rights to public records come from; and the intimate knowledge of what is going on with our government is important. He stated they have situations that have occurred during the storm; they have shelters, special needs shelters that did not have adequate disposal for medical waste or sharps containers; and they had shelters that were not properly manned. He stated emergency personnel were concentrated in single buildings, in particular, the paramedics; and should the County have lost that building, it may have lost emergency response for a good portion of the County. He stated buildings were used that may not have been inspected; there are a lot of things that need to be corrected; the process that the Board is going through and the policy of the Comprehensive Management Plan for Emergency has in it preparedness, response, and recovery; and inquired where is critique. Mr. Pine stated there is opportunity to improve things; the major issue that he would like to bring to the Board’s attention is in regard to the shelters; and it needs to survey the people who were in the shelters, not just the people there, but the staff as well. He stated one shelter managed to get hot meals for participants, then was chastised for doing that because they did not have food service certification; the whole purpose of the good samaritan laws is to protect people trying to help people; staff did that and went out of its way to do it; it exceeded the requirements and did something for that shelter that is very commendable; and for staff to be chastised for it is ridiculous. He stated they need to encourage those people who are out there in those shelters to do as much as they can, not inhibit their aid to the public; so in regard to those surveys, the Board needs to do separate surveys for the staff that was at the shelters and law enforcement and do the special needs shelters separately. He stated at one special needs shelter, he believes it was Oak Park School, the toilets became clogged and the only place the people had to access facilities was by walking through the storm; obviously that brings up the issue of maintenance of some of the facilities; and perhaps they should have some type of a response so that they can maintain the facilities so that they remain habitable throughout the storms or the emergency events. He stated that would be brought out by a survey. He stated the Board also needs to look at the failed shelters where the roof came off and see what happened there, what the participants that had to move went through, what could have been done to improve that, what facilities could have been made available, and what kind of response would have aided in that and better secure it. He stated the County was very fortunate that nobody was harmed, but that does not mean it should not be diligent because the next time it could be worse; so the County should be prepared and should take the time and combination of fortunate and unfortunate and learn from it. He stated the old adage that if one does not learn from the past he is doomed to repeat the same mistakes is very apropos in this situation; they need to discover those mistakes, discover the improvements that they can make, and make them; and when they determine the standards for the shelters, they need to take into consideration many factors that may not be directly connected to the physical ability of the structures to withstand the storms. He inquired if there are facilities for staff to sleep in; and do they have the facilities to segregate, should they have a situation like they had in one shelter where somebody showed up with drugs. He stated if that occurs when the Sheriff cannot get out, they need to be able to segregate that person from the other refugees; so there are standards that they need to look at that are not just whether or not the building will survive. He stated they need to take a period of time, back up, do those studies, and find out what the public needs at the shelters before they decide what the standards should be.

Clerk of Courts Scott Ellis advised the item he is here to address is not the existing shelters as designated, but the use of County facilities as evacuation shelters when they are not designed to be so. He stated an example is the Viera Courthouse; he believes the Titusville Courthouse was also used; and he asked for a list of what other County facilities people were evacuated to during the storm that are not truly shelters. He stated there are civil engineering standards for shelters based on wind load and the ability of the windows to take an impact; Viera Courthouse meets none of those standards; and during Hurricane Frances, they had approximately 150 people in that building. He stated he requested from the Sheriff’s Office a list of the people who were there; and he is still waiting on that information. He stated that facility is not a shelter and to the best of his knowledge has not been designated as such; and he asked the question and has not gotten a response back from the County as to who designates shelters. Mr. Ellis stated there are State guidelines for shelters; he finds it hard to believe that someone can just pick a building and say that will be a shelter; and the Board entered into Agreements with the School Board to put shutters up at the schools. He stated the Viera Courthouse had a large group of people; the whole front of the building is glass; and inquired where would the liability be if someone was injured there. He stated people were there Thursday, Friday, and Saturday; and Sunday morning the power went out, so Sunday most everybody evacuated. He inquired what if someone was stuck in an elevator or got up in the middle of the night, walked down the stairs and not being familiar with the building went right down the stairwell or had glass come in on him or her, who has the liability. He stated he does not know if the County has any other multistory shelters designated in Brevard County; it is one thing if a tornado strikes a shelter and it is designed and designated as a shelter; but it is a whole separate issue when it puts people in a facility that has not been designed or designated as a shelter. He stated there is a tremendous problem from a security point of view because after the power goes out for a certain number of hours, the locks give way; so the building becomes open; both sets of outer doors were broken during the storm; and he does not understand how the County Manager can grant permission to people to stay in the County facility that is not designed as a hurricane shelter. He stated they had a tremendous problem at the Viera Courthouse; it took a week to get the Courthouse back up and running, and three weeks later people were put back in there for Hurricane Jeanne; and inquired if there is a policy from the Board for designating shelters.

Chair Higgs advised Steve Salvo submitted a card, and there were questions about his occupancy of the Viera Courthouse; with Mr. Salvo responding he submitted a card in response to being asked to come to the Meeting to answer questions.

County Manager Tom Jenkins inquired if Mr. Salvo can explain what occurred in terms of his contacting him requesting permission to retain some of the court officers who were also providing security at the special needs shelters and staying at the Moore Justice Center.

Mr. Salvo stated Sheriff Williams wanted to utilize the Moore Justice Center as a hurricane shelter for the Sheriff’s Office families; he requested of Mr. Jenkins if they could do that, and Mr. Jenkins indicated yes. Mr. Jenkins inquired if it is common for the Sheriff’s personnel to stay in their precincts and their offices during hurricanes; with Mr. Salvo responding yes. Mr. Jenkins inquired if Mr. Salvo typically mans those facilities on Merritt Island, Sarno, or the Moore Justice Center as a routine to man precincts or Sheriff’s office; with Mr. Salvo responding yes. Mr. Jenkins inquired if the only exception or unusual component of this was the desire to bring family members with them; with Mr. Salvo responding yes, they did have families at the Moore Justice Center; and it was designated the area for the Sheriff’s Office to bring any Sheriff’s employees and their families. Mr. Jenkins inquired if the request was presented to him at the Emergency Operations Center; with Mr. Salvo responding yes. Mr. Jenkins inquired when the request was made, did he respond that the Moore Justice Center was not a shelter, it has a lot of glass, and can they take steps to make sure the people occupying the facility were protected; with Mr. Salvo responding yes and they did take those steps. Mr. Jenkins requested Mr. Salvo tell the Board about the condition they left the facility in, and what steps and measures were taken to protect the areas that were set aside for the Clerk of the Courts; with Mr. Salvo responding prior to the hurricane coming, any family members who came into the building, they took down their names, who they were, who they were associated with as far as the Sheriff’s Office goes, and assigned them to different locations within the building. Mr. Salvo stated most of the locations were in the back part of the building where the walls were solid; once those became full, they went upstairs and everybody was placed away from the glass and the front; and they went into the back court areas where the judges' chambers were. He stated certain parts of the building are locked and off limits because of sensitive materials and documents that are there; nobody could get into those areas; and they provided security. Mr. Jenkins requested Mr. Salvo repeat what he told him about assigning an officer to specifically go into the Clerk’s area to guard or protect the Clerk’s area from anybody entering that area and what occurred while that officer was in the Clerk’s area. Mr. Salvo stated one of their sergeants was to stay in the Clerk’s area; and there was someone at the front all the time in the lobby area so no one would go into the Clerk’s offices and to provide general security for the building. He stated they noticed that the roof started leaking and wind and rain were pounding on the front windows; and there were a lot of electrical equipment left on, so the guys went around and shut off the equipment just in case it got wet. He stated they had guys mopping also and placing buckets.

Commissioner Pritchard inquired if Mr. Salvo had a list of names of the people who were at the shelter; with Mr. Salvo responding yes. Commissioner Pritchard inquired why was the list not provided to the Clerk who asked for it.

Sheriff’s Finance Director Deborah Barker stated Mr. Ellis submitted two requests to her; one was in September and the other she received yesterday; she advised Mr. Ellis she would be answering all the questions; however, he submitted the request in the middle of September, and and they were in the middle of trying to calculate the FEMA costs for the hurricanes and closing out the fiscal year. She stated by Florida Statutes, they have 30 days after September 30 to close the Sheriff’s books in compliance with the audit; so she could not give the financial figures to Mr. Ellis that he wanted until she calculated them in accordance with FEMA. Ms. Barker stated they just finished that last week, so she has not yet been able to supply him with the information that he wanted; and she will do so now that FEMA has been done and the books are closed in accordance with Chapter 30. She stated she has to comply with Florida Statutes; she had FEMA in-State and out-of-State auditors knocking at her door wanting FEMA done; she had routine financial applications such as payroll, regular procurement, and regular issues she had to deal with; and she fully intended to comply 100% with Mr. Ellis’ public records request that was directed to her as the audit director and budget director. She stated she did not have the information available until Friday of last week to begin to answer his questions; his second request was received in her office yesterday; she did not receive anything by email and received it by hard copy courier yesterday; and he asked her to have the information available for today, but she did not have the opportunity to do so. She stated she will answer every request that Mr. Ellis has put in now that she has the financial information available to do so.

Commissioner Pritchard inquired why was the list of names that Commander Salvo had not forwarded to Mr. Ellis; with Ms. Barker responding she saw the request and list of things he wanted and knew that she did not have all the information; she does not remember him asking for a list of names; and if it was something that she could have done quickly, she apologizes for not doing so, but she look at the request in its entirety knowing that she did not have the information to give him and did not know until now that Mr. Salvo had an actual list of the family and the family names. She stated all she knows is what she has on payroll cards and FEMA logs. Commissioner Pritchard stated Ms. Barker has been a roadblock because he has asked for information, and she told his office he was supposed to submit a public records request; it would be nice if she were a little bit more forthcoming when he asked for something, or Mr. Ellis asked for something to provide it, instead of coming here and telling him all the things that she is doing and things she is concerned about. Ms. Barker stated she and the remainder of the Sheriff’s Department have been very forthcoming in giving all public records requested; and she personally was brought up on an internal review board by Sheriff-elect Parker and was told that the entire public records request issue was scrutinized within the Sheriff’s Office. She stated she was slandered and accused of violating Florida Statute 119 and the Sheriff’s Office General Orders; so at this point, her direction is to go by Florida Statute 119, and everyone must go through the public records request unless she has been otherwise afforded the Sheriff’s permission or a separate designee. She stated she has done the same thing with Commissioner Higgs, Jeff Schweers, J. D. Gallup, and Tom Breen; she does not know that Commissioner Pritchard or Mr. Ellis are any different under Florida Statute 119; and if they are, to let her know. Commissioner Pritchard stated that was a pretty smug answer and he takes umbrage with what Ms. Barker had to say. Ms. Barker stated it was not intended to be smug. Commissioner Pritchard stated he is a little tired of having to deal with Ms. Barker so he is looking forward to what is going to happen in January. Ms. Barker inquired what did Commissioner Pritchard mean by that; with Commissioner Pritchard responding Ms. Barker can sit down as he is done talking to her.

Commissioner Carlson stated everybody deserves proper respect; and she does not think that was very respectful. Commissioner Pritchard stated he does not think Ms. Barker should stand there and tell him, a County Commissioner who approves the Sheriff’s budget, what he can and cannot get in terms of trying to obtain information, and stand there with a smugness about obeying Florida Statutes. He stated he asked for information and expected to get information; and if she does not like that, he does not care.

Ms. Barker requested permission to ask the County Attorney if a Commissioner is any different, and to ask Commissioner Pritchard to explain what he looks forward to happening in January.
Commissioner Pritchard stated he has a feeling that with the new Sheriff, he is going to have new representatives. Ms. Barker asked Mr. Knox if a County Commissioner is any different under Florida Statute 119 or if the Clerk of Courts is any different; with County Attorney Scott Knox responding the short answer is no; and the long answer is September 15 until November is too long to comply with the public records law. Commissioner Pritchard stated the other short answer is he is the guy Ms. Barker has to come to when she makes requests. Ms. Barker stated she did not have the financial information available until last Friday. Commissioner Pritchard stated he is talking about the information he asked for and was stonewalled and told that he had to make a public information request. Ms. Barker stated that is what she is aware she is supposed to do as a public official. Commissioner Pritchard stated Ms. Barker did it because she had other motives. Commissioner Carlson stated whatever those motives are, this is not the right place to discuss it; and they can take it up personally if they like. Chair Higgs stated Ms. Barker has always been cooperative with her.

Commissioner Scarborough stated he heard one thing from Mr. Ellis and another thing from Commander Salvo; there were two issues, one is how is a shelter designated, who designates them, and who has control; and he would like to handle that separately. He stated one thing he heard is that there may have been court records, which are normally confidential, that may have been available for persons not authorized to review them; Commander Salvo said no secured areas where those files would have been placed were in fact open; and Mr. Ellis may want to comment on that, then let Commander Salvo respond.

Mr. Ellis advised Sunday morning, when the power went out, within a few hours all the locks failed; there were 150 people in the building and the locks failed; they were not told to close their offices down on Wednesday for the hurricane and expected the courthouse to be empty other than perhaps a few deputies to guard the facility; but they did not expect to have a bunch of civilians in the courthouse, so files were all over the courthouse. He stated for Hurricane Jeanne, they pulled all the files and brought them back to the office; and reiterated that electronic locks give way when the power goes out.

Commissioner Scarborough inquired if places were open where there might have been records; with Mr. Ellis responding they were accessible. Mr. Ellis stated the place is not designed to be a shelter; but if they were told it was going to be used as a shelter, they would have taken a different set of precautions. Commissioner Scarborough stated that is relevant because they are going to evolve into a conversation with the County Manager on how policy should be developed; and there were really two things involved—(1) does the Board want to put people in buildings that could be at risk; and (2) if people go into areas that they normally would not be in there is a risk of misuse. Commissioner Scarborough stated most records are not of a nature of a court file, but a court file can be sensitive in a different sense; and inquired if Commander Salvo knows of any areas where files were kept that should not have been reviewed by persons not within the court system; with Commander Salvo responding no, he is confident that those areas were kept secure. Mr. Ellis stated once the locks give way, it is opened up. Commissioner Scarborough stated that is an issue the Board needs to deal with; there are a lot of issues; and one is the payroll issue. He stated he cannot believe they cannot give a two-week payroll; and all he asked for was a two-week payroll record for the hurricane and who stayed at the shelters. Commissioner Scarborough stated he wanted to see if people who stayed at the shelters were charging overtime for their evacuation; he did not ask for anything complicated and it has nothing to do with FEMA; so he does not understand all the smoke and mirrors. He stated he understands Commissioner Pritchard ‘s frustration; it is a simple request; Finance did County payroll, which has triple the number of employees as the Sheriff has; and they have the County payroll for the whole period including the overtime. He stated he cannot believe it is sitting on post cards in the Sheriff’s Office; it is sitting on spreadsheets just like in County Finance; and he did not ask what is FEMA reimbursable or not reimbursable, just simply overtime records and who was parked at those facilities during the storm. He stated it is his belief that they had a lot of people who evacuated to the courthouse instead of to Tampa or wherever they could have gone; then the County was billed for overtime while they were there; however, he cannot say that is a fact until he has the payroll records. Mr. Jenkins suggested asking Commander Salvo that question because he was supervising that group.

Mr. Ellis inquired how many evacuees were being paid overtime at the courthouse and how many hours per day were they being paid. Mr. Jenkins inquired if they were working, goofing off, or having a vacation; with Commander Salvo responding everybody was working except for five individuals who were working also but needed to sleep; so they were there at the courthouse and were paid for that time. Mr. Ellis stated the courthouse was closed Wednesday, Thursday, and Friday, which were perfectly normal days; the storm was coming but did not come through until Saturday night and was gone Sunday morning; so he does not know what they could have been doing or what kind of work could have been done there on Thursday and Friday. He stated he hates to put Commander Salvo on the spot, but he never got the information he requested; he can understand why they would have a handful of people there for security; and he respects that in case the windows did get blown out. He stated Commander Salvo was the first person he met Monday morning as he walked in the courthouse to see what kind of condition it was in; but bringing in all the families actually impaired security and did not increase it. He stated he cannot believe the people used it for a hurricane shelter and then billed the County for it. Commander Salvo stated the people were there for security; the ones who were paid were only five individuals out of almost 60 that were spread out through shelters all over the County; and most were the midnight shift and could not leave. He stated they were trapped by high winds and could not go anywhere at that point. Commissioner Carlson inquired if that information is going to be forwarded to Mr. Ellis to qualify it, as Ms. Barker said the information was available; with Commander Salvo responding yes. Mr. Ellis inquired if only five people at the courthouse were paid; with Commander Salvo responding yes. Mr. Ellis inquired if everybody else that was there was not paid; with Commander Salvo responding yes.

Chair Higgs stated the issue before the Board is about shelters and what the Board would like to do in terms of an official shelter policy.

Commissioner Scarborough stated the only time he can remember the Board getting involved in who uses buildings was when a State Representative asked for office space in the North Brevard Government Center; State Attorney Norm Wolfinger helped to get space for Congressman Tom Feeney’s office; and they worked hard to get Dave Weldon into the Viera Government Center. Commissioner Scarborough stated normally the Board does not immerse itself into allocation of space; they have the complexity of having not just County workers but the Sheriff who is a constitutional officer up there in the North Brevard Government Center; and there are judges within the confines. He stated they find space for the constitutional officers and move from here to there and make things work as a community. Mr. Jenkins stated by Florida law, the Board is required to provide space to elected constitutional officers; they do their best to accommodate their needs; and that varies. He stated with the courthouses, the rule of thumb is that once they enter the courthouse, it falls under the jurisdiction of the Chief Judge; and the County does not have direct internal security within the courthouses. He stated the County provides security at the entrance to the courthouse, but the bailiffs and court officers are under the direction of the Sheriff and Chief Judge who issues operating rules as they relate to the operations of the courthouse. Commissioner Scarborough inquired since the Board allocates space to a constitutional officer, to what extent does that officer have responsibility for his records, employees, and space; and stated it is much more complex than the Board drawing a line because it has not done it except to try and get an elected State or federal official into County facilities. Mr. Jenkins stated a number of elected officials such as the Tax Collector, Property Appraiser, Sheriff, and Supervisor of Elections feel they have some control over their space that the Board provides; if they choose to go into the building and say they need to protect their records, that is a question the Board would have to resolve; and inquired if the Board would choose to say no, they cannot go into the building to protect their records. Commissioner Scarborough stated he would like to see a discussion with each of the constitutional officers as to their view of their space, not only initially but also in the case of an emergency as well; and inquired if in an emergency, does the Board tell a constitutional officer he can or cannot be in the courthouse if the Judge has got the authority over it. He stated he has a duty under the law to protect records and do his job, so he will charge forward; and he does not think it is going to harm the Board in the long run, but is going to help it if it promulgates a new policy as to all the measures without having it ignored by constitutional officers or objected to by those officers.

Commissioner Carlson stated part of the item is for the County Attorney to research the liability of nonconforming facilities; and added to what she thinks the intent of the Agenda item was, she would like to see that kind of information come forward. She inquired if Mr. Knox has any comments on policy setting of those kinds of issues; stated the County owns the structures, whether it owns all the contents in the structures or not; and inquired if that lends to the Board’s liability. Mr. Knox stated the County owns the building so it is going to get sued no matter what happens. Commissioner Carlson stated she understands that and that is her point because the liability issue is the key in this conversation. She stated the Board owns the building and it is the one that will get sued if something happens and it is a nonconforming facility; and inquired who defines it is nonconforming. Mr. Knox stated he needs to research it and get back to the Board to let it know where it stands on the issue.

Commissioner Pritchard stated he does not think the question is whether they can protect their records; the question is who should be there protecting their records; and inquired if it is talking about the five deputies that were spaced throughout the courthouse protecting and preserving records or about others that used it, families included, as a shelter and whether or not the building is an appropriate shelter. Commissioner Pritchard stated it hinges on not whether they are protecting records, but whether the building is a facility that was designated as a shelter and is going to protect individuals. He inquired who designates what a shelter is and how is it determined; with Emergency Management Services Director Robert Lay responding they use a shelter selection criteria that is established by the State. He stated they apply that criteria against the available buildings they have; and in most cases those are School Board buildings, unless it is a new school that was built to enhanced hurricane protection standards and already meets all the requirements to be used as a shelter.

Chair Higgs inquired if they are public shelters; with Mr. Lay responding those are public shelters, which is what they look for and what they designate. He stated they have looked at some other buildings and do not use them for public shelters; the Moore Justice Center was one of them that they looked at as well as the Government Center; and the reason was the amount of unprotected glass at the facility. He stated that is not to say individuals could not stay there and use certain inner core areas; however, for the general public, they have to look at the overall facility and designate buildings that meet the criteria. He stated they then turn to the American Red Cross to operate the shelter for the County, with the exception of special needs shelters; but all the shelters have been looked at and measured by the shelter selection criteria.

Commissioner Pritchard inquired about the school that was used and part of the roof blew off; with Mr. Lay responding Sherwood Elementary is a special needs shelter; 5% of the roof peeled down, but it did not blow off. Commissioner Pritchard inquired if that was only the aluminum covering; with Mr. Lay responding yes. Commissioner Pritchard inquired if the integrity of the roof was still there; with Mr. Lay responding no, it is a steel roof and they could see straight through it; however, it has been repaired. He stated those buildings are checked every year, including the roofs; that was somewhat of an anomaly that happened; and it could have been a tornado that lifted or peeled that one end of the shelter. Commissioner Pritchard inquired if it was a flat panel roof; with Mr. Lay responding no, it was crimped. Commissioner Pritchard inquired if there was plywood underlain or was the metal attached directly; with Mr. Lay responding he cannot answer that because he does not know. Commissioner Pritchard stated the reason he asked that is because Mr. Lay said it was exposed, so it sounds like it was metal on metal; and he was wondering what the criteria is to have metal on metal roof because generally what happens with a metal roof is that it does peel; but there is underlying plywood in most residential construction anyway. Mr. Lay stated it did meet the criteria. Commissioner Pritchard inquired what is the difference between a public and private shelter; with Mr. Lay responding there are no private shelters; they designate public shelters because the general public comes to the shelters; and the special needs shelters are different than public shelters in that the Red Cross will not man special needs shelters. He stated the Red Cross does not discriminate against anyone, but persons of special needs require additional assistance; so that is why the County has to man those special needs shelters. Commissioner Pritchard inquired if there are three special needs shelters Countywide; with Mr. Lay responding there are seven. Commissioner Pritchard stated in the case of the Moore Justice Center that was used more as a private shelter, it was a group of Sheriff’s deputies who used it as a shelter; it was not a public shelter; and the public was not authorized to use it. Mr. Lay stated he would look at that as a fire station. Commissioner Pritchard stated the difference there is a fire station is generally staffed by the crew and they do not bring families into fire stations. Mr. Lay stated he cannot answer that. Mr. Jenkins noted Commissioner Pritchard is correct; and Chief Bill Farmer agreed. Commissioner Pritchard stated the Moore Justice Center became a shelter for a private group, the Sheriff’s deputies; and inquired if it had ever been designated as a shelter; with Mr. Lay responding no, they have shelters for general population and special needs. Mr. Lay stated they use the Cocoa Reference Library, which has been inspected as a general population shelter; and they use that for County employees that are required to work and for their families while they are working. Commissioner Pritchard stated the concern he has is the issues raised by Mr. Ellis in that they used the facility that was not designated as a shelter for people other than those there to guard records; it put the County at a significant liability risk; he is also concerned with some of the comments about various problems that occurred during the stay such as excessive trash, broken doors, etc.; and he is not sure about the unbalanced air conditioner. He stated he knows Mr. Lay was not involved with it; but it is not good policy for the County to have a building utilized by families of deputies. He stated he can see having people there to provide guardianship of the public records that they wish to keep secure; but he is concerned about it being used as a shelter for family members. He inquired if the County has any other facilities that were used in that same regard, not designated a shelter, but became a shelter for specific groups; with Mr. Lay responding they do not have any that he is aware of, but his focus was only on the facilities that were designated general shelters and special needs shelters; and their entire focus is protecting the public.

Commissioner Scarborough stated they need to be conscious of the constitutional officers and judges; once the Board assigns space to somebody, it needs to understand that after the storm that is going to reopen; and they want to make sure the integrity of that office somehow remains within the purview of that constitutional officer or judge. He stated another thing is the safety of somebody going in there; Mr. Lay has indicated the County only does public shelters, but it would be very wise to know which buildings are safe to occupy and which not to occupy; and as they talk to a constitutional officer or anybody else, it may be required that they have certain people occupy certain places and do certain things during a storm that are not necessarily the best place to be, but nonetheless are required for the purpose of functioning during the storm. He stated the Pinewood shelter that was used required going out to prime the pump with gasoline every two hours in the middle of the storm; because certain things happened, the
sewer backed up; it became a total mess in the place; and when the third storm came around, nobody wanted to go back to that shelter because it was a disaster inside of it. Commissioner Scarborough stated that is a separate issue, but nonetheless it shows the dynamics of the two issues; and the one issue is that sometimes they are in places because they have to be in places, and because it is better for someone to be there than to be in their mobile home.

Chair Higgs inquired if there were people in the North Brevard Government Center and did anybody authorize them to go there; with Commissioner Scarborough responding no. Chair Higgs stated the people who have authority over the space have used the space; and the Board needs to develop a policy that insures they are using space properly and that unsafe structures are not occupied during emergency storms. Commissioner Scarborough stated if there is a place that is inherently unsafe with glass, the Board needs to define what that is and not let other people take control of other people’s space.

Commissioner Colon stated the discussion is healthy, but they have to remember that it was a Category 4 hurricane; policies were not set at that particular time; and if the folks knew then what they know now, they would not make the same decisions that they did before. She stated they had a horrible hurricane; they could not send people out, especially law enforcement, to go home; and there were some decisions that probably they would not make again, but she does not want the community, based on what they witnessed, to take away from the fact that law enforcement, firemen, and volunteers did an outstanding job. She stated right now the Board is trying to set policy to make sure that things that happened before do not happen again; but by no means is the Board criticizing the outstanding job that all the volunteers, law enforcement, first responders, and staff did for the community. She stated she did not like what she witnessed here and what was allowed to happen; the Board needs to go ahead and set policies; it had a Category 4 hurricane and did not know which way it was running; and requested they not lose the vision of what really happened. She stated they were making decisions on their own; people were asking should they send their family away, stay, go to Palm Bay, go to Titusville, and they were all under a lot of pressure; and they did not know which way things were going. Commissioner Colon stated the Board should not make something even uglier; she truly believes the decisions were not made to be disrespectful to anybody, to hurt anybody, or to be in areas they should not be in; staff has learned from it; they are ready for the next hurricane; so the Board should set a policy and move on.

Chair Higgs stated she cannot agree with Commissioner Colon more; if it was not done quite right, then the Board should fix it, change it, and come back with a policy. She instructed Mr. Jenkins to work with Mr. Lay and develop a policy.

Commissioner Carlson stated those will come back in the lessons learned that Mr. Lay is putting together; the policies are set prior to the Policy Group coming together in an emergency setting; and the problem was they never dealt with multiple hurricanes before. She stated she is sure there are a lot of lessons learned; a Policy Group is in place and an issue for a nonconforming shelter comes forward; it should come in front of the Policy Group and it should make the decision if it is not already determined that it was supposed to be a shelter; and that seems to be a normal decision that the Policy Group would have made. She stated if that is not in the books right now, then that is what she would like to see, at least in terms of shelters.

Chair Higgs requested a motion that would ask the County Manager to work on a policy along with the Director of Emergency Management regarding the use of County buildings by personnel or families, and bring it back to the Board. She stated it is not rocket science, but they need to get it straight.

Commissioner Carlson stated if there are shelters designated for families of employees, and if there is supposed to be a shelter for Sheriff’s deputies and their families, maybe that should be part of the discussion as well.

Chair Higgs inquired if the City of Cocoa used a building as a shelter for its personnel. She stated the County had a variety of people in various buildings; it should be careful in regard to liability and be sure they are okay in regards to records; so the Board needs to get it tightened up and be sure it has it right.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to direct the County Manager and Emergency Management Director to develop a policy for designation of official hurricane shelters and use of all non-shelter County facilities during hurricanes. Motion carried and ordered unanimously.

DISCUSSION, RE: POLICY GROUP CONTRACTING POWERS

Chair Higgs advised there is a question from Clerk of Courts Scott Ellis regarding the Policy Group, and Mr. Pine wishes to speak to that as well as the rest of the issues; and she will give Mr. Pine an opportunity to speak and relate to the other issues as well.

Walter Pine of Titusville stated the Board is talking about public records assess and solving problems, and someone commented it was not a good idea for the public to see what happened; but the public has a right to know what the problems are and see what happens. He stated public records have not been made available; this is a cover-up; the Board can call it what it will, but he has asked for copies of contracts and still does not have them; and he asked at the last meeting this item came up and still does not have them. He stated Public Records Law does not allow the County or any public official or custodian of the records to delay; a law or Ordinance was passed saying they could delay 24 hours; that was overturned; so the Board cannot delay by practice even 24 hours. He stated Mr. Ellis sat here and said he is not getting public records; and inquired what has the Board done to solve that problem. He stated he gave the Board a piece of paper a few minutes ago; on the back of it he attached three Statutes, one is the Public Records Law; it says that when they knowingly refuse to give a public record, they commit a first degree misdemeanor; and it also has in there the requirement for every public servant to take an oath to support the Constitution. Mr. Pine stated as he told the Board before, Article I, Section 24 is the Public Records Law; obviously if they have not gotten public records, somebody is not supporting the Constitution; and inquired guess what happens after that. He stated Florida Statute 876.06, Discharge or Refusal to Execute, says “If any person required by Statutes 876.05 and 876.10 to take the oath herein provided fails to execute the same, the governing authority under which the person is employed shall cause said person to be immediately discharged.” He stated that does not give the Board a choice; he is talking about taking the very policies and the very decisions that were made inappropriately that now he cannot get the public record on; and they are putting it right back in the hands of the people who made them in the first place. He stated he showed the Board where they violated the law and where the Board is required to discharge them; and he wants to see if the Board is going to do its job.

Commissioner Scarborough inquired specifically what records did Mr. Pine request; with Mr. Pine responding Commissioner Scarborough was at the meeting. Commissioner Scarborough inquired if there are records Mr. Pine wants from the Board; with Mr. Pine responding the very contracts that are under consideration today. Mr. Pine stated he asked for them at the last meeting; the Board acknowledged having never seen them; and inquired if they have seen them yet. Commissioner Scarborough inquired if that is the request to the Board; with Mr. Pine resonding that is one of the requests and only one.

Chair Higgs inquired what contract does Mr. Pine want; with Mr. Pine responding all the contracts the Board is supposedly voting on today. Chair Higgs stated she does not see any contracts; and the item for discussion is the contracting powers. Mr. Pine stated the discussion includes the power to issue the contracts that were already issued; the contracting power under discussion necessitates the public being able to see what was done with it prior to this time; and that necessitates them being able to get copies of those contracts. Chair Higgs inquired if Mr. Pine was not able to get those; with Mr. Pine requesting he be allowed to finish. Mr. Pine inquired how can he make an intelligible comment about the authority to issue contracts when he does not even know what has been done with that authority previous to this time. Mr. Jenkins advised Mr. Pine to go to the third floor to Central Services Office, Purchasing Section, and they should have all the Purchase Orders that were issued as they relate to the hurricane response; and stated he has been told that previously. Mr. Pine stated they did not have them yesterday. Mr. Jenkins stated they do have them. Mr. Pine stated according to them they do not. Mr. Jenkins inquired where are they; with Mr. Pine inquiring if that is something Mr. Jenkins is supposed to know. Mr. Jenkins stated they are supposed to be there. Mr. Pine stated that is what Mr. Jenkins is responsible for. Mr. Jenkins stated he will be happy to check it for Mr. Pine. Mr. Pine stated it should have already been checked; he asked for them at the last public meeting when the Board discussed the contracts; he spoke to the auditors and while discussing it with the auditors, he discovered that it was an error in the use of the auditors in his research trying to get the contracts; but he still has not gotten the contracts. Mr. Jenkins requested Mr. Whitten respond.

Assistant County Manager Stockton Whitten advised he is not aware that they were asked for; and at the last meeting or the meeting previous to that, copies of the Purchase Orders were on the third floor in the Purchasing Office.

Clerk of the Courts Scott Ellis advised the issues he wanted to discuss today basically center around the contracting powers of the Policy Group. He stated when the County had Hurricane Erin, the Board met the day after the hurricane; it did not have a Policy Group; and when it did contracts, everything came before the Board. He stated the current Policy Group is getting ready to expire or has just expired. Chair Higgs stated it expired. Mr. Ellis stated six weeks after the hurricane, the Policy Group is still in operation; he does not understand why the contracts are not coming before the Board for approval; he understands from a directional point of view he has to have a Policy Group has to make decisions, such as where to send heavy equipment, fire trucks, direct FEMA help, etc.; but he does not understanding the contracting powers that had been given to the Policy Group and why it continues on to the extent it does. Mr. Ellis stated it is one thing to make purchases off existing contracts, even if they have to go with a State contract; but two contracts that were of concern to his office are the Post Buckley contract and another contract, which is somewhat associated with that through the Brevard Workforce Development Board. Mr. Ellis stated the Post Buckley contract was piggybacked on the Broward County Contract by the Policy Group; his office checked with Orange County, which piggybacked on Manatee County’s Contract with the same firm at a lower rate; and Orange County not only took the lower rate, it negotiated down with Post Buckley to pay 2.93 times whatever the people were making. He stated the Board jumped into something, piggybacked it, and he is not sure it is shown that it needs that contract because Melbourne and Palm Bay, which comprise about one-third of the entire County, do not have an outside consultant helping them, and they do not have a Solid Waste Department, but the Board is going to spend a million dollars on Post Buckley. Mr. Ellis stated the other item is the Workforce Development Board and the Contract with Spherion; the contract shows it is $500,000; and it has the same problem as the Post Buckley contract as it is free because FEMA is paying for it, so there is no cost to the County. He stated it is a $500,000 contract, but the Board is not told how much the company is being paid; but what it has been given is that the individuals who work for Spherion will make no more than $12,000 to get 1,000 hours, but there is nowhere in the contract that says how much of the $500,000 goes to Spherion per hour per employee. He stated he highly doubts the Board is paying someone to watch that Spherion is getting just $12; that is not in the contract with the Workforce Development Board; the lady who owns Spherion also sits on the Workforce Development Board; and that is a real conflict as well. He stated the Board is paying three different groups of people to watch the contractors pick up the trash.

Commissioner Scarborough stated that item was pulled from the Agenda for discussion later; that is before the Board for contracting, which would not fall under the purview of what the Board is discussing here; and they are items the Board did not have the contract to review.

Mr. Ellis stated the Spherion contract is already done; the Board is asked to ratify it; it is the same as Post Buckley; and that is his concern. He stated there is no chance to go over those contracts; they were approved by the Policy Group and it is already six to eight weeks into those
contracts; and inquired if the Board needs three different firms to watch people pick up the trash. Mr. Ellis stated Ashbritt’s contract says they are supposed to fill out trip tickets and load tickets; now the Board is paying Spherion to go and watch them as they fill out tickets; and it is paying Post Buckley who is going to watch the people who watch the people pick up trash. He stated had it come before the Board as coherent items, it would have had the chance to discuss it and County Finance would have had a chance to look over it; they were amazed when they called Orange County that it had a lower rate than Broward; so he does not know why the Broward contract was chosen. He stated the Board may not have been told that Post Buckley had other rates for other counties; but there are significant per diem and hourly rate differences in the two contracts. He stated Orange County is not paying that much; he does not understand why the Board did not come back and meet during the storms if it had to make contract decisions; because if it had met as a Board, even if it had to do a last day announcement for an emergency hearing, the public would have been able to come and see what was going on. He stated the Board met after Hurricane Erin and actually were meeting as a Board during the month of September for budgets; so he does not understand why the Policy Group has been given the Board contract powers beyond the purview of the County Commissioners. He stated he understands when it comes to the Board, the contracts are already signed; and inquired if that is correct; with County Attorney Scott Knox responding yes. Mr. Ellis stated so they are kind of a done deal when they come to the Board. He stated the County Manager has $35,000 as his limit; the Board can meet and say it is going to raise that limit to $100,000 for the next three or four weeks; but instead, everything was handed off to the Policy Group; and the Policy Group made the decisions how long it wanted to extend itself and went for another seven days and for seven more days and seven more days and seven more days; and it has just now gone out of existence after the hurricane, which was September 25 and 26. He stated they were concerned about the powers that were taken from the Board of County Commissioners, meeting in a public meeting, and given to the Policy Group, which, while it may be not closed to the public, the public does not know where or when it is meeting. He stated the Post Buckley and Spherion contracts are very questionable; but the Board is in the position where most of the money may have already been spent on both contracts.

Commissioner Pritchard inquired what would Mr. Ellis consider the powers of the Policy Group to be; with Mr. Ellis responding directional. Mr. Ellis stated if there are emergencies in Titusville, Rockledge, and Palm Bay, and only limited resources, the Policy Group has to get together and coordinate with the cities where to place the resources, be it heavy equipment or whatever. He stated during Hurricane Erin, they had to pull equipment from all over the County; and if during the recent hurricanes Palm Bay had a lot of damage, the Group could move ambulances from the north end of the County to the south end, it could do emergency contracts to get traffic lights fixed as it has existing contracts with Traffic Control Device or some other company; and picking up trash is not an emergency. He stated he agrees it has to be done, but it is not an emergency. Commissioner Colon stated it is an emergency; with Mr. Ellis responding no, people called his office all the time after Hurricane Erin complaining about trash not being picked up; but people had water in their homes from the flooding; and flooding is an emergency, but trash on the side of the street is not going to kill anyone for a week or two. He stated it is not an emergency compared to roofs being blown off, water ruining their houses, street lights laying in the middle of the street, and stop signs being torn down; those are true emergencies; and a lot of the other things are not; so he does not know why the Policy Group has that kind of contracting powers. Commissioner Pritchard stated regarding the issue about trash, because of the multiple hurricanes and debris that was out there that was not picked up timely, his office was inundated by callers who said the debris would be flying around. He inquired when Mr. Ellis thinks the Policy Group should sunset and how soon after an emergency; with Mr. Ellis responding within a week after the emergency it should pass powers back to the city councils and the Board if it is really there to direct limited resources to where they have to go. He stated someone has to make the decision of where to put ambulances, fire trucks, heavy equipment, and those things that need to be coordinated for the whole County; but he does not understand the contracting issues; and quite truthfully many people in the Policy Group may not understand them either.

Commissioner Scarborough stated Mr. Ellis said two inconsistent things, one that he alluded to the fact that as soon as practical, back when he was on the Board to have the power shift back to the Board where it would be in a public meeting; then when answering Commissioner Pritchard’s question, he said a week. Mr. Ellis stated as individual Commissioners, they do not make decisions where to send heavy equipment because they are not directional. Commissioner Scarborough stated as to contracting powers, it should shift back to the Board as soon as feasible to have meetings in the Commission Room; with Mr. Ellis responding absolutely, and the Board could have very well met the day after the hurricanes. He stated from a directional point of view, the Policy Group interconnects with a number of different agencies; and it is very important; but from a contracting point of view, the Board of County Commissioners is supposed to be the power to do those contracts.

County Manager Tom Jenkins advised most of the purchases that occurred, occurred off existing contracts, and, in fact, Purchase Orders were issued; the variation Mr. Ellis brought up was the issue of the dollar amount, that during the storm they were spending more dollars than they would otherwise spend; for example, traffic signals blew down and they had to purchase $750,000 worth of new traffic signals; so they far exceeded the normal spending standards. He stated in terms of debris removal, the Board has two contractors that were pre-approved that were on contract; before the Post Buckley contract, they had discussions with the Workforce Board where it made available federal dollars to hire monitors to monitor the collection of debris; the County was required by FEMA to have those monitors to oversee the debris collection; and there is a very rigid process that has to be followed. He stated after Hurricanes Charley and Frances, they were getting way behind on debris collection and it was as a result of Hurricane Jeanne where they concluded that having temporary employees out there monitoring the collection was not working because the results were not what everybody wanted. He stated they had out-of-town collectors jumping from street to street, neighborhood to neighborhood; so the conclusion was that a higher level of supervision or accountability was going to be required. Mr. Jenkins advised they continued to get the federal dollars from the Workforce Board and they cut a Purchase Order to Post Buckley to do the management or coordination of it because the Solid Waste staff was overwhelmed with operating all the landfills and disposal sites. He stated they pulled employees from all the other departments to come in and try to help, but on a long-term basis, it was not feasible; so Post Buckley was brought to their attention, and they proceeded with a Purchase Order off of an existing Contract. He stated in order to continue to get the federal dollars for the monitors, there were some adjustments made in terms of how the money was received so that they could continue to get those monitors at no direct cost to the County. Mr. Jenkins stated the County hired Post Buckley to do the supervision of the monitors and to make sure the County was following all FEMA guidelines so the County would be eligible for reimbursement from FEMA; and there were very distinct duties and responsibilities between the two entities. He stated he agrees the Policy Group should cease to operate as soon as possible; in the case of the Post Buckley contract, they were hired right about the time Hurricane Jeanne was coming to Brevard County, which was the September 24, 25, or 26 timeframe; on September 28 they had Post Buckley before the Board, which was the first meeting after the Hurricane; and Post Buckley made a full presentation to the Board on the services it would be providing so that everyone was fully aware of what Post Buckley was going to be doing in terms of overseeing certain operations. He reiterated that several days after
Hurricane Jeanne, Post Buckley was before the Board making a presentation on what its role would be; and the Board asked questions, made certain requests for particular services, and so forth. Mr. Jenkins stated in the case of the Policy Group being in operation for the three hurricanes the County encountered, the only real function after Hurricane Jeanne that the Group had to deal with was to continue the Emergency Order; that was the primary thrust of what it continued to do; it was not making any major decisions after that, particularly as they relate to expenditures; and it also came back with some recommendations. He stated the Policy Group recommended the County Attorney craft language for incorporation into the Emergency Management Plan that transfers policymaking authority for emergency from the Policy Group back to the Board of County Commissioners as soon as possible following the emergency response; and it also recommended language be incorporated in the Plan that creates a recovery coordinating committee as opposed to a policy group that would report to the Board as it relates to recovery efforts. Mr. Jenkins stated the Policy Group also made a recommendation that the Board clarify language in the Comprehensive Emergency Management Plan that unequivocally states the emergency governing body has the authority to enter into contracts, and that a representative of the Brevard County City Managers Association be a voting member of the Policy Group. He stated all of those items will be brought back to the Board as part of an amendment to the Comprehensive Emergency Management Plan, and it can then discuss the pros and cons of those various changes.

Chair Higgs stated the responsibilities of the Policy Group can be directed by the Board and the CEMP; however, it made decisions based on what it thought the direction was; the pink tabs in the manual are references to what the Policy Group does through the recovery; and she tried to be consistent with what she thought the intent was, which directed the County through the recovery period and made sure that the public safety and welfare were insured. She stated she read the memo from Mr. Knox regarding legal authority; the Policy Group had the legal authority to act and the responsibility the Board gave it; and the Board is in the driver’s seat to change it if that is what it wants to do. She stated the Policy Group did what it felt was right based on what was in the CEMP, what the County Attorney said were its powers, and what the State law is; it approved the Post Buckley agreement and bought traffic lights; and as far as she can remember, those were the two purchases that were made. She stated she remembers vividly sitting here with the Board with complaints and concerns regarding trash pickup and safety issues; so her personal feeling is that they were moving forward consistent with what the Board was concerned about and what was best for the public in the recovery. Chair Higgs stated the Policy Group brought Post Buckley in to talk to the Board; and she feels confident it was consistent with the direction it had in the CEMP and Florida Statutes. She stated it happens after every event that people look back and say they should have done this or could have done that; her guidance was they had authority to act; they should act in the best interest of the citizens of Brevard County; and she proceeded to do that. She stated to change it and make it clearer and more defined is something the Board has to do.

Commissioner Colon stated the Board has to be very careful with that decision; it should not be done in haste; and it needs to be very careful because after a hurricane leaves, the aftermath is there, which is worse. She stated there were people in the community who had no electricity for 12 days; there was garbage sitting out there spoiling, which created a hazard to the community; and those are things that someone who was not in the middle of the whole process cannot possibly comprehend. Commissioner Colon stated when they were at the water and ice stations, they had to figure out how many trucks were coming in Brevard County and whoever was out at the site would have to determine and tell the Policy Group there were x number of people. She stated the lines were huge and they did not have enough ice or water; and those are things that were happening that most people did not have a clue about. She stated they would have to be in the trenches to see exactly what was going on; so the Board needs to be careful of when it wants to dismantle the Policy Group. She stated she would like to get together with the folks who were part of the Policy Group and get feedback from them; she wants to make sure any mistakes that happened in the past are not repeated in the future; and the only way to do that is by actually having all the players there, Fire Rescue, Sheriff’s Department, School Board, and everybody because some of the things that happened were that the School Board decided it was okay to start school, but the community did not have electricity; therefore, moms were not able to feed their children in the morning and give them baths to send them to school. She stated the Board needs to get with the people who were in the trenches to tell it what worked and what did not work instead of those who were not there.

Commissioner Scarborough stated he understands the need to be able to contract; Mr. Jenkins indicated to him that John Denninghoff needed to buy traffic lights; and they were hard to get because everybody else were buying them; but when the Board had the Post Buckley presentation, he asked Mr. Knox if that was something the Board was going to contract for; and he said no, but it would not hurt to ratify it. He stated there was a whole litany of items but most of them were not new contracts; they were billing on existing contracts; and inquired how many new contracts did they actually have; with Mr. Jenkins responding probably one or two. Assistant County Manager Stockton Whitten stated there were one or two and possibly three, but most were Purchase Orders on existing contracts. Commissioner Scarborough stated the thing came to the Board and it was confusing; it came back the second time and the Board decided to accept rather than ratify; and inquired if the Board is compelled to ratify the contracts; with Mr. Knox responding no, but the reason he suggested ratification is the Plan does not explicitly say the Policy Group has authority to contract; but State law does, if the Board delegates the authority to the Policy Group. He stated the Board is required to delegate powers to the Policy Group or to the local emergency management agency; but since it is not in the Plan, he thought it would be better to have it come to the Board and be approved; and if not, the State law grants the power to contract to whoever the Board designates as the local emergency management agency. Commissioner Scarborough stated the County was already using Post Buckley services and already had the traffic light contract; and inquired if the Board does not ratify the contracts. He stated what he heard is that the ability to contract is not specified in any of the policies nor when it ceases to be the Policy Group. Mr. Knox stated the major issue is what role is the Policy Group supposed to occupy; right now it does everything; and it does it for whatever period of time. Commissioner Scarborough inquired would it be acceptable to say at this moment, Mr. Ellis’ thought, to begin to have the Board function, even with emergency meetings, and that the Policy Group would cease to have ability to contract at that time. Mr. Knox stated that would be fine, but the point is what limitations does the Board want to put on the Policy Group. Commissioner Scarborough stated what he is hearing is when does the authority shift back to the Board and what authority is there. Mr. Knox stated it is not in the plan and that is the reason for the questions.

Chair Higgs stated if there are questions, then the Board needs to change lots of things. Mr. Jenkins inquired who is going to define when the Board can meet; with Commissioner Scarborough responding he would say the Chair because the Chair is the only one he knows that calls emergency meetings. Commissioner Scarborough stated the Board shifted its legislative authority to one individual, the Chair, in an emergency; therefore, that is a part of his or her responsibility. Chair Higgs stated the Board should go through the whole plan so that it is comfortable with it; there is a section on recovery and it says, “representatives of each emergency support function and other agencies involved in the recovery process will perform recovery functions consistent with assignments prescribed in the corresponding ESF and directed by the Policy Group”; and it goes on page after page to say, “the Policy Group will determine, under recovery. . “; so if the Board wants to shift that, that is fine.

Commissioner Scarborough stated just the contracting element may need changes and shift to the Board; the Chair can call emergency meetings and tell the Board what contracts to deal with; but conceivably the Policy Group could deal with recovery. Chair Higgs stated that is not inconsistent with what was done; she feels strongly that the community needs a group of people coordinating recovery; the County is still in recovery; and she is still watching people pull stuff out of their houses and rebuilding everything. She stated she believes there is an ongoing function of the Policy Group, staff, and community; she believes it will be two years from the day of the hurricanes before the County recovers; and the Board needs to keep an eye on what is being done and where it is going. She stated the Board gives the Policy Group responsibility in the Plan; and until it changes it, that was the guiding thing. Commissioner Scarborough stated Chair Higgs is not disagreeing with what Mr. Knox advised; with Chair Higgs responding she is not disagreeing at all. Commissioner Scarborough inquired if Chair Higgs agrees with shifting contracts back to the Board; with Chair Higgs responding the contracts that were actually issued would be consistent with what Commissioner Scarborough is talking about. Mr. Jenkins stated the Policy Group did not issue any contracts after the hurricanes; and it was before and during the hurricanes that it did that. Mr. Jenkins stated it is not just contracting, it is exceeding spending authority, which is another issue; and a lot of the instances were not new contracts but new Purchase Orders off existing Contracts. He stated the County has a vendor for traffic signals, but it spent $750,000; so it is not just contracting, but also spending authority, which is the second half of the equation.

Commissioner Pritchard stated if there is anything the Board has learned it is that it needs to make some changes in the operation of the Policy Group, what it is using as shelters, and who is going to be allowed to use those shelters, whether they are designated as shelters or not. He stated like the Moore Justice Center and other areas that are not designated shelters, if the Board is going to have people there to protect records, it should just be the people who are protecting the records. He inquired if there has been any type of after-storm critique that the Board needs to discuss; with Mr. Jenkins responding they take time, but they are underway for all the hurricanes. Commissioner Pritchard stated he would encourage that the critique come along quickly; and inquired how much longer does staff need; with Mr. Jenkins responding several more weeks. Commissioner Pritchard stated it would be a good idea, when staff presents the critique, to have the Policy Group members as well as the Commissioners at the workshop so they can discuss the critique and not just have it presented as an agenda item. He stated that way the Board can review all of the policy that it currently has and the policy recommendations, then make other changes at that time. He noted someone from the Clerk’s office should also be in attendance. He stated he wants to make sure that when it comes back, it comes with the players that can effect change and make good policy; and if anything, the Board has learned that it does need to make some changes.

Chair Higgs stated the Board needs to clarify exactly what it wants the Policy Group to do so there is no confusion. She stated she would also adamantly encourage the Board to continue the groups that are in place as recommended by the Policy Group to monitor and facilitate the continuing recovery effort.

Commissioner Colon stated Chair Higgs is ready to retire, but it would be important if she could attend the workshop as she played a critical role during the hurricanes; and the Board could benefit from her observations. She noted that is her humble invitation to Commissioner Higgs. Chair Higgs noted she would check her schedule for December.

The meeting recessed at 2:36 p.m., and reconvened at 2:48 p.m.

WORK SITE AGREEMENT WITH BREVARD WORKFORCE DEVELOPMENT BOARD,
INC., RE: HURRICANES FRANCES AND JEANNE TEMPORARY STAFFING

Chair Higgs advised there is a representative from the workforce Development Board present; the item was pulled; and she has spent the day with the Board, but needs to be at another meeting.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to move Item III.D.1., Work Site Agreement with Brevard Workforce Development Board, Inc. and Authorize County Manager to Execute Amendments or Attachments, Re: Hurricanes Frances and Jeanne Temporary Staffing, forward. Motion carried and ordered unanimously.

Commissioner Scarborough stated some questions were previously raised by the Clerk’s Office; and there were two things, compensation for the 80 temporary workers, and were there other monies going to other persons.

Lisa Rice with the Brevard Workforce Development Board, advised the $500,000 estimated value that she believes was given to the County was for the wages of the employees only; that was not administrative costs; so that is the estimated value of the wages to the County. She stated there are administrative costs because they have contracted with Spherion to handle the payroll and administrative functions that go along with it; and they are getting paid an administrative fee for every person that they place and not just those County employees.

Clerk of the Courts Scott Ellis advised the contract specifies what the individuals make that are following the trash pickers, there is nothing specified of how much Spherion is making per hour; and inquired if it is coming through the Board, how much does it totally cost. He stated Ms. Rice said they gave the County $500,000 worth of direct labor; and inquired how much money does that $500,000 cost by the time they actually get a bottom line with all the costs of supervision and overhead that is put on it. He stated the Contract appears to be let through the Workforce Development Board; and one of his concerns is it went to a company whose owner sits on the Workforce Development Board. Mr. Ellis stated the County staff really did some preparation; it is not like things were totally unprepared; the County had two contractors already set up well before the hurricanes, going back to 1998 or 1999, that were to come in and handle it; and Ashbritt was one of the contractors. He stated the contract says, “the contractor shall maintain at the site one record copy of all load tickets, disposal tickets, field inspection reports, and other data sufficient to provide substantiation of debris removal costs for federal and State reimbursement applications.” He stated there are three or four places in the Ashbritt contract where it talks about all the records that they are supposed to keep to be reimbursed; the County is paying Ashbritt to do that; and now it is paying Workforce Development Board to watch Ashbritt and paying Post Buckley to watch the Workforce Development Board to watch Ashbritt. He stated he does not understand why the County has all those contracts for people watching the trash get picked up; Melbourne and Palm Bay are one-third of the population of the County; and they do not have all that overhead or a Solid Waste Department. He stated he does not understand what Ms. Rice said; and inquired if the contract is directly with the federal government to the Brevard Workforce Development Board. He stated he is not sure where the Board is involved on that one with the money that is being spent on all the effort. Mr. Ellis inquired what is the County getting from the Post Buckley contract and why is it piggybacking with Broward County’s contract, which is more money than what Orange county is paying the same firm. He stated Brevard County is paying a higher per diem rate, higher hourly rate, and he does not know if it was even looked at because it is not before the Board. He stated Orange County is actually cutting that even further with Post Buckley to pay it less; and he guesses Ms. Rice will tell the Board how much everybody is making along the way.

Commissioner Scarborough stated some of it gets into the broader concept of what Ashbritt was doing and why the Workforce Development Board played a role; and maybe Mr. Martens can respond to that, then the Board could go to the specific question about the Workforce Development Board.

Utility Services Director Richard Martens advised after their experiences with Hurricanes Irene, Floyd, and Erin, Mr. Jenkins said they should enter into the contracts with two contractors to pick up debris; and in those days the contractor was allowed to fill out their own load tickets at the site and staff would simply monitor the loads at the disposal site. He stated after Hurricane Charley came through or at the time of Hurricane Charley, FEMA informed staff that they needed independent verification at the loading site that the debris removed was in fact eligible for FEMA reimbursement; so the monitors they brought in originally, a mix of County workers pulled from different Departments, were eventually replaced by the Workforce Development Board folks to monitor and write loading tickets verifying that the material was eligible for FEMA reimbursement. He stated staff still did load calls at the disposal sites; that was still a part of what they did; the problem they got into first with Charley, compounded by Frances, was the backlog of work, the phone calls, the demand for service, the workload of the Solid Waste employees so they were not able to provide the level of supervision and direction to the contractors and management follow up on complaints; and they brought in Post Buckley to help them with those higher management functions. He stated they were to report to the Board on where the contractors were working, what they were doing, what their scheduling was, monitor the contractors and make sure they were picking up efficiently and not cherry-picking the debris piles, and were working in a systematic manner, and to follow up on complaints. He stated they had a number of complaints of missed streets or torn up yards, etc.; and Post Buckley stepped in to help with the management of making sure the contractors were being responsive to the needs. Mr. Jenkins stated 38 cities and counties in Florida have hired Post Buckley to perform this service.

Chair Higgs requested Ms. Rice explain their contracts. Ms. Rice stated first she needs to address something Mr. Ellis said a couple of times, which is the payment of money to the Workforce Development Board as well as to some of the other contractors. She stated there was no payment of money to the Workforce Development Board for the monitors; it was provided by the Workforce Development Board under a separate grant; and it was not a FEMA grant, but a National Emergency Grant. She stated the selection of Spherion as the staffing company was done through a sole source justification because it was not just for the monitors, it was for over 500 additional temporary jobs they have throughout the County that deal with disaster recovery; and at the time they tried to find a staffing agency, Spherion was up, open, and ready to handle their request immediately. She stated Spherion receives a fee for every placement it makes, so it is not a flat fee; it is dependent upon how many people they actually get into jobs; and it is around 15% if she remembers correctly, but knows it is not more than 15% of a flat fee upon each person it actually places. Mr. Ellis inquired if it is 15% every week; with Ms. Rice responding yes. Mr. Ellis inquired if that is the overhead rate; with Ms. Rice responding yes, that is standard across several different workforce regions and they did comparisons with other workforce regions to make sure they would be in line. Mr. Jenkins stated the County did not pay the Workforce Development Board, the Workforce Development Board paid the County to hire the people. Ms. Rice stated actually they did not bother giving the money to the County and just paid for the monitors; and it was totally taken care of by Spherion staffing. She stated the County had no payroll to worry about because it was taken care of completely by Spherion. Mr. Jenkins stated the County had a choice of accepting the monitors at no direct cost or could have paid for them directly.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to execute Worksite Agreement with Brevard Workforce Development Board, Inc. for temporary staffing related to disaster recovery and clean-up efforts for Hurricanes Frances and Jeanne; and authorize the County Manager to execute any amendments or attachments to the Agreement contingent upon approval by the County Attorney and Risk Management. Motion carried and ordered unanimously. (See page for Agreement.)

Commissioner Pritchard stated Mr. Ellis mentioned Post Buckley, Orange county piggybacking on Manatee County’s contract at a lower rate, and Brevard County piggybacking on Broward County’s contract; and inquired if Mr. Ellis knows what the arrangement is with Orange County and Post Buckley and if it used the firm before for this type of endeavor; with Mr. Ellis responding they spoke with Orange County Comptroller’s Office; they piggybacked with Manatee County’s rates originally, which were less than Broward County’s rates; but they reduced that number and are paying a factor of 2.93. He stated for example, if a Post Buckley individual is making $18 an hour, Orange County pays 2.93 times the $18 and the per diem rate is probably $50 or $60 a day less than Broward County’s rate. Commissioner Pritchard stated Mr. Ellis mentioned Melbourne and Palm Bay; with Mr. Ellis responding they did not use Post Buckley and used City staff, but they do not have solid waste departments.

Chair Higgs inquired if they shifted City staff to do the jobs of monitoring; with Mr. Jenkins responding yes, and the County does not have a Solid Waste Collection Department, but has a Solid Waste Disposal Department. Commissioner Pritchard inquired if the cities used city staff to pick up debris; with Mr. Ellis responding no, Waste Management picked up the debris; and Post Buckley is not picking up anything, it is supervising the people who are watching it get picked up. Mr. Ellis stated the Ashbritt Contract says they are supposed to do that; with Mr. Jenkins responding FEMA does not accept that any more. Mr. Ellis inquired if that is true; with Mr. Martens responding both Ashbritt and Crowder/Gulf function as general contractors, and each have numerous subcontractors; they provide the direct day-to-day supervision of those subcontractors; and that is what their Contracts say. Mr. Martens stated the difference they have now with Hurricanes Charley, Frances, and Jeanne compared to Floyd and Irene is that FEMA no longer accepts the certifications and load tickets prepared by the contractors and subcontractors that are actually picking up the debris. Mr. Ellis inquired if that means the two companies have to have a third party that follows them and says they saw them pick up so many cubic yards of trash; with Mr. Martens responding correct. Mr. Ellis stated he still does not see what Post Buckley’s role is other than trying to coordinate the monitors to tag along behind the people picking up trash. Mr. Martens stated in order to pick up trash effectively and efficiently, it takes some coordination; and how Post Buckley coordinates that pick up and makes sure the County gets high-quality services is by assigning the monitors to the areas that need the work. He stated the contractor wants to get paid; one way of looking at it is the contractors follow the monitors; now the contractors make an overall plan; they coordinate very closely with Post Buckley; but without a monitor, they do not get paid; so that gave Post Buckley and the County tremendous control over the contractors by looking at where the needs were on any given day, where the complaints were coming from, and the streets where the contractors said they finished. He stated they were able to, by deploying monitors to where they needed to be deployed, get the best bang for the buck and get the trash picked up. Mr. Ellis stated the
Ashbritt contract clearly states the County shall not direct them on routes, sequences, or any kind of pick up; and by using monitors, the County is indirectly doing what it cannot do directly. Mr. Martens stated it became clear in the weeks after Hurricane Frances that they needed some type of control like that. Mr. Jenkins noted it became clear after Hurricane Charley. Mr. Martens stated things were not going as anticipated; everyone’s phones were ringing; and they needed to step up and solve the problem.

Chair Higgs inquired if it is fair to say that people who are running the trucks, picking up the debris, and subsequently the construction and demolition debris are paid by the load; and one makes the most amount of money if they pick up the biggest loads and the easiest to get to, and are the fastest to get to the dump; with Mr. Martens responding correct. Chair Higgs stated so they would cherry-pick their loads; and in order to insure that everything got picked up, they used monitors and different people, otherwise people furthest from the dump or who have less volume, get left behind. Mr. Martens stated that is exactly what they were seeing; there was certainly an amount of cherry-picking going on that they thought they needed to control.

Mr. Ellis stated the cherry-picking was done by the subcontractors to Ashbritt; Ashbritt has no incentive to cherry-pick; they are getting paid by the cubic yard to bring everything in; so if he was a subcontractor working for Ashbritt, he would want to work around the Sarno area because he could get a quick haul; but it is Ashbritt’s job to make sure they do not cherry pick. Chair Higgs stated that area is in Melbourne; with Mr. Ellis responding not where he lives, it is in the County. Mr. Jenkins stated FEMA required the County to have individuals monitoring every debris truck and recording what they were picking up; and FEMA required the County to have powers where they dump the debris to look into the trucks to make sure the trucks were not artificially filled with something. He stated there were extensive FEMA regulations that they had to either do with their existing employees, which they did not have any, or they could use Post Buckley like all the other cities and counties in Florida. Mr. Ellis stated Post Buckley is not doing that; and inquired if Post Buckley is following the trucks; with Mr. Martens responding Post Buckley is supervising and organizing the monitors that are following the trucks, so every day there was a big meeting where all the trucks were parked and they would talk about daily assignments and where everyone was going to make sure that they were coordinating the debris pickup. Mr. Ellis stated he does not understand the complexity; if they are doing the pickup and are told the monitor was going to follow the truck through all the neighborhoods, why would they need Post Buckley to tell the monitor to follow the truck. Mr. Martens stated there is a big picture; just having the trucks running around the County willy-nilly was obviously an inefficient and ineffective way of picking up the debris; they were having numerous complaints about streets being partially picked up and some not being picked up; and that obviously was a management problem with Crowder/Gulf. He stated Post Buckley brought to the County an experience that it did not have on staff in dealing with those matters, not only in organizing the pickup but reporting the success, documenting where they had been, and providing information to the Board and community on where they would be in the future.

Commissioner Pritchard stated after the County hired Post Buckley, and it did it for 90 cents on the dollar, the phones in his office pretty much stopped ringing, so their effective management was able to control the situation because the County was overwhelmed by the amount of debris that was not able to be managed properly. Mr. Ellis stated the County paid Post Buckley $1 million to do the job that should have been done by Crowder/Gulf and Ashbritt; but it did not take that million dollars from the two contractors and give it to Post Buckley. He stated what essentially was said is that Ashbritt and Crowder could not get the job done and could not manage their subcontractors, so the County paid a million dollars to Post Buckley to do that for them; and that million dollars should have come from both of those companies if they could not get the job done because it is clearly in their Contracts that it is what they are supposed to be doing. He stated if the County is going to pay someone else to do their job, it should have taken their money to pay for it. Commissioner Pritchard stated Mr. Ellis brings up a good point, the involvement of the two contractors; and inquired if there has been further discussion with them over their failures and what amends can be made. Mr. Martens stated staff meets with them three times a week; there have been many discussions; and the outcome of the discussions has been the response from the public in Commission offices. He stated back to the topic of after action analysis on this, the Contracts were written in the aftermath of hurricane Floyd that was a miss and Irene that was a miss and both were fairly low-volume storms; they had two significant storms this year; and like many response agencies, they learned lessons that they did not know before; and he and the Solid Waste Management Director are already planning the next phase. He stated having the pre-position contracts in place is absolutely essential if they are going to respond rapidly after a storm; but with the lessons learned from the summer of 2004, they will certainly apply those to any new contacts and functions they will do in the future.

Mr. Jenkins stated that is very good and he is glad to hear they are going to benefit from their experience, but the Board has to go back to the point where it had the Workforce Development Board grant to hire monitors, which were required by FEMA; somebody had to go out supervise those monitors; and that could not be the two collectors because FEMA would not allow the collectors to monitor all of the monitors. Chair Higgs inquired FEMA would not reimburse the County if it used its staff. Mr. Jenkins stated they had to have a separate entity for accountability purposes with FEMA to supervise all of the monitors that they required in order to get their money; and FEMA was paying for the monitors, so the County did what it said; it said go hire a bunch of monitors and the County did that; and the County had to have somebody to manage the monitors. He stated staff tried to do it internally but did not have a collection department in Solid Waste; the guys who were supposed to be running the landfill were out chasing garbage trucks and monitors; so they hired Post Buckley to monitor the people that were in the field. Mr. Jenkins stated that is not part of the collectors’ contracts; FEMA will not let the contractors monitor collections; FEMA required a separate certification on what is picked up and it cannot be by the contractors; and the County is not going to change that.

Commissioner Carlson inquired what percentage of the Crowder and Ashbritt contracts dealt with program management and what, if any, cost could the County have reduced on that basis. She noted that is part of the lessons learned. Mr. Jenkins stated the lesson learned is what he just said; FEMA required independent monitors; and the County had to have somebody to supervisor them. Commissioner Carlson inquired if the County knew FEMA required that before it went into the Ashbritt and Crowder/Gulf Contracts; with Chair Higgs responding no. Mr. Jenkins stated that was done in 1999, and FEMA changed its rules since 1999.

DISCUSSION, RE: EXCESSIVE DAILY OVERTIME FOR HURRICANE FRANCES

Clerk of Courts Scott Ellis stated before getting into this item, he would like to request a letter as to why the County chose to piggyback the Broward Contract versus another contract such as Manatee County, and also a copy of the Spherion Contract with the Workforce Development Board. Chair Higgs advised Mr. Ellis to ask the Workforce Development Board for that Contract. Mr. Ellis inquired if that would not be through the Board of County Commissioners as there must be some reason why they are here at the meeting. Chair Higgs stated the item pulled was in regard to the workforce Development Board’s agreement. Mr. Ellis stated it is before the Board and has a County tie into it or it would not have been before the Board to approve. Chair Higgs stated the County got the grant. County Manager Tom Jenkins stated the County did not hire Spherion, the Workforce Development Board hired Spherion, and the County used the money from the grant for the monitors. Mr. Ellis stated the County took their money to give it back to them because it did not get $500,000 to drop into the General Fund. Mr. Jenkins stated Ms. Rice clarified that the County did not actually get the money, it got the people; the Workforce Development Board hired the people through Spherion and sent them to the County; so they did not get the cash but got the bodies that they hired that Spherion processed. Mr. Ellis stated the Contract still goes through the Board; with Mr. Jenkins responding only the Workforce Development Board Contract and the County does not have a contract with Spherion. Mr. Ellis inquired if Ms. Rice is still present; with Chair Higgs responding no, but she is sure they would give him a copy of the Contract with Spherion.

Clerk of Courts Scott Ellis stated the biggest part of this issue is the number of people clocking 20 and 24 hours a day in overtime; and his understanding is the only people paid to sleep and eat on the job are shift firefighters. He stated all other personnel are supposed to be paid when they work; the memo sent out by the County Manager on Hurricane Frances timecards clearly stated sleep time is not to be counted as work time; and there is no way that a number of those people can work three, four, or five 24-hour days in a row. Mr. Ellis stated he has seen other comments from Human Resources Director Frank Abbate; he does not understand why some of it has been given to him because it does not make sense; and the issue on this is the excessive overtime and not salaried overtime, which are two separate issues. He stated he does not see why anyone other than shift firefighters should be paid to sleep or take their lunch breaks. He stated it was days before the storm hit, but people clocked off 24-hour days starting on Wednesday night for a hurricane that came through on Saturday night.

Scott Pikus with Brevard County Sheriff’s Office, stated he is here to address the issues after what he read in the paper about the overtime and involvement of the Brevard County Sheriff’s Office, as a deputy sheriff who worked during the hurricanes and also as the Union
representative for the deputies. He stated he will waive his time to speak because there is nothing in regards to the Sheriff’s Office at this time.

Walter Pine of Titusville stated this brings to light one of the issues he was talking about, doing the investigations before making decisions or bringing those to the Board and gathering all the information. He stated there are two sides to this story and he agrees with Mr. Ellis; there has to be accountability; but also there are a number of policies and management techniques that were used that required people to stay in particular areas at the shelters and things of that nature. He stated thankfully a number of Sheriff’s officers and other people have explained various things to him, but the public does not see it; and the public does not realize that they only have x number of Sheriff’s officers and had that many or more posts that needed to be filled during emergencies. He stated they need to determine when the emergency starts and when it ends, but all those are issues that they need to look at; they keep telling the Sheriff’s Department that they will not give it any more money; but then they have an emergency, which necessitates that they fill a number of posts; and if they are going to fill 100 posts 24 hours a day, and they only have 100 people, it is 24 hours that those people are going to be there; so they need to look at that, not only from an emergency standpoint, but from a budgeting standpoint. He inquired if they need a certain buffer of manpower to be able to respond to emergencies; and encouraged the Board to take some time to look at those issues, take both sides, bring them together, and from a budgetary standpoint as well as accountability standpoint, look at those because they take on a different character whether it is the Sheriff’s Department or other Departments of the County. He stated they have to look at that so they budget them and man them such that they can respond to those unusual circumstances, realizing this year was very unusual, but the fires were another situation; so it is important that they collect the information and consider it for long-term management strategies. He stated that is not being done; they are getting a lot of arguing and fussing and so on and so forth; and they need to start a process that results in some positive changes, not just what is being brought to light, but to discover what the staff members have endured, what they think can be improved, and what is necessary for the safety of the County. Mr. Pine stated they have to commend the Sheriff’s officers and all the people that were out there for what they did, but commending them does them no good if they do not support them; and that means looking at what the problems were and solving them. He stated it does not seem they are doing that in a very effective manner at this point; so he would encourage that they have some kind of formalized process to look at this, to gather information, and to alter their management strategies so they do not end up with a situation that necessitates the unusual or perhaps unwise circumstance.

Chair Higgs inquired if the Board wants to talk about revision to the Leave Policy as well.

County Manager Tom Jenkins stated he is more outspoken than usual; the Board does not hear much from him; but today it is going to hear from him. He stated the current Policy for emergency conditions did not distinguish between salaried and hourly employees; but the new policy he has placed on the Agenda does distinguish between the two. He stated many salaried employees worked six days during Hurricane Frances in special needs shelters, Emergency Operation Centers, and so forth; and it is unreasonable to expect that people are going to be captured basically for six straight days without giving them some additional payment. He stated they had librarians bathing the infirm and ill residents at special needs shelters; that is not their regular job; they were not hired to do that; but they were in there working long days. He stated those that were on duty would sometimes be able to catch a nap in their chairs; and many slept on the floor, took naps, and on occasion if they were lucky, might get a cot to sleep on, but there not enough cots to go around. He stated almost all of them were called upon while they were sleeping to get up and respond to a particular need; Hurricane Frances was the most costly hurricane of the three that they had to respond to; and the reason it was so costly is because they had the long duration of six days. He stated it was a Category 4, almost a Category 5 storm; while the hurricane was slow getting to Brevard County, no one knew for sure exactly when it was going to reach the County; the weather forecasters were wrong in their estimates as to when it was going to arrive; and in advance of that hurricane, the County had bus drivers working 18-hour days moving people to special needs shelters; firefighters helped evacuate a hospital in Rockledge on two-hour notice; and there were many instances where everybody was quite busy. Mr. Jenkins stated at 2:00 a.m. they got a call from a Melbourne hospital saying it needed a tanker of water; they had people ready to respond to that; on another morning they roof blew off a public shelter; and they had fire chiefs, assistant fire chiefs, and many others that were there during the hurricane with winds of 80, 90, and 100 miles per hour moving people from one shelter to another. He stated prior to Hurricane Frances, with little advance warning, the evacuation was done in advance of the hurricane; so there were ongoing needs for people before, during, and after the hurricanes. He stated the Road Construction Manager was working in the EOC; he was not able to go home until three days after the storm; his house was flooded and there was damage to his home; but he stayed on the job before, during, and after the hurricane, worked 18, 19, and 20-hour days, and slept on the floor or on a cot when he could get one. He stated the County employees were there; they responded; it was an expensive hurricane because it lasted so long; but they have submitted a number of potential changes to the Policy in order to contain those costs in the future.

Commissioner Colon stated probably some folks took advantage of the situation; but she is not going to throw the baby out with the bath water. She stated for all those employees and first responders who went out there and worked, she thanks them from the bottom of her heart for being there because at that point it was not about money. She stated they were worried about their children, grandparents and all of those things you cannot put a dollar amount on; so on behalf of everyone from the community, she thanks all of them. Commissioner Colon stated this discussion is to make sure that the Board clarifies anyone who might have taken advantage of it; she is positive that number is extremely small; and shame on those who did try to take advantage of it. She stated overall she worked side-by-side with people who worked hard; a perfect example is Chris Combs who was at the water and ice site at 5:30 a.m. and went home at 11:00 p.m.; and he had two boys that he had to take care of because he is a single parent. She noted there are hundreds of those stories; and she will not allow today’s discussion to have those folks put in a situation with the rest who took advantage of it; and she will not allow anyone in the room to do that because everyone in the community worked side-by-side, shed a lot of tears, and wiped a lot of tears together. She stated the Board needs to be very careful of the kind of discussions it has; it is good and healthy to find out and make sure that some of the things that have happened will not happen again; but that does not take away from all those courageous folks who were there for the community. She stated she wants to make it perfectly clear to everyone in Brevard County.

Commissioner Pritchard stated Mr. Jenkins’ memo says the current Merit System Policy for pay during declared emergency conditions was implemented in 1999; an event of that long duration, talking about the current events, had not been experienced; the people that worked during the hurricane operated under a Policy that had been adopted in 1999; and they were promised relief for performing that work, which is the amount of money that they received in accordance with that Policy. He inquired if he is correct in saying that; with Mr. Jenkins responding yes; and Mr. Abbate has certified that to the Board and believes they have complied with the Board’s Policy. Commissioner Pritchard stated Mr. Ellis mentioned that fire departments are on 24-hour shifts and are paid on a 24-hour basis; if for some reason they were brought in, then they were paid according to their normal pay policy; others that were at various shelters, and he knows from experience that the employees at the EOC and the shelters were there for a lengthy duration; and inquired if there were any that left the shelters yet attempted to claim overtime for the time they were not at the shelters and were not actually at work; with Mr. Jenkins responding no, he is not aware of any. Mr. Jenkins stated each employee has to fill out a timesheet; that timesheet is then submitted to their supervisors, directors, or whoever, and the various agencies; and he knows of one instance where he looked at one employee’s timesheet that had work some very long hours day after day, and queried his director if he is absolutely sure that individual did put those hours in. He stated the supervisor said he was not there every moment; but much of the time that the individual was there he put time in and when he was able to sleep, it was a catnap as he was subject to call because he was a computer specialist; and they would come and get him, he would have to get up, and would go back and work on the network if something was not functioning. He stated the logic being that even if they are sleeping in the building, they are subject to being awakened to go back to work; if they were taking a nap on the floor or stuck in a telephone room, they were still entitled to be paid; but many employees actually deducted the time they were asleep. He stated there were cots across the street in the Health Department; when people went over there, they deducted that time; and when people were sleeping at their desks or on the floor for short naps, they may not have deducted the time. He stated when they capture people for as long as they did, the question becomes one of fairness. Commissioner Pritchard stated numerous employees claimed multiple 24-hour days; and inquired if Mr. Jenkins has references to whom that may have been; with Mr. Jenkins responding the Fire Department employees claimed 24-hour days; the Sheriff’s Department employees possibly could have; he is not aware of many Board of County Commissioners’ employees that did; and there were some with very high hours, but he is not aware of many who actually turned in 24-hour days. Commissioner Pritchard stated he was briefed continuously during the operation; he stopped by the EOC a couple of times and ran into the same people; and it was at different times that he came there. He stated the briefings he received were made by two people; the other one filled in the rest of the gap; when he went to the EOC later one morning, the fellow who should have been off at 7:00 a.m. was still there at about 10:00 a.m.; so he does not want to take away from what work the employees did because they did one hell of a job. He stated Commissioner Colon is right; what the employees did was phenomenal; as to the issue about Thursday and Friday when they had clear weather, the Board declared an emergency on Wednesday as he recalls; and that provided opportunity for some County people that were not in that category of being directly on call to go home and take care of their homes. He stated others were able, through a method of rotation, to go home and take care of their homes; others like Commissioner Higgs who was the Board’s representative, just let her home blow away; and she found her dock in Micco. He stated Commissioner Higgs was at the EOC for about five days straight; and he never showed up that she was not there, or he did not hear her in the background, or see her on television. Commissioner Pritchard inquired when employees were able to leave the EOC and go home, rest, and come back, did they charge for the time they were away; with Mr. Jenkins responding to the best of his knowledge, when they went home they deducted that time; he is not aware of anybody who did not; but it was basically an honor system and he is not aware of any employee who tried to steal from the County. Mr. Jenkins stated many employees showed 16 and 18-hour days; on occasion some of them went home; a majority of them stayed either at the EOC or across the street in the Health Department; the County closed on Wednesday because the hurricane was supposed to get here by 6:00 a.m. Friday or even Thursday afternoon; it dragged out and the weather was clear, but the forecast kept changing; and the County would not have closed on those days if the hurricane had not been expected. He stated the Fire Department was heavily manned; they had all three shifts on; and they got all kinds of emergency calls before, during, and after the hurricane. Commissioner Pritchard stated one of the important considerations Mr. Jenkins made in the previous issue the Board addressed is who will get what and how much will they get; one of the concerns he had when he saw the high dollar amounts was that when staff takes certain positions within an organization, there is responsibility that comes with it; and that responsibility may mean they get nothing for coming in. He stated it ranges from nothing, which he thinks Mr. Jenkins and Commissioner Higgs were paid, to whatever others were entitled to; and Mr. Jenkins made a reasonable adjustment in terms of future emergencies and what employees will be paid. He stated he does not want to take away anything from the employees; they did one heck of a job; and they are to be commended for what they did, the hours they put in, and the work they performed. He stated he went to a couple of special needs shelters to see what they were doing; librarians were doing bathing duties; it was phenomenal to watch the response from employees; and he for one wants to thank all the employees for what they did during that hurricane because he really appreciates it.

Mr. Jenkins advised he would also like to point out for the record that the County Manager, Assistant County Managers, the County Attorney, and the Chair of the Board did not receive any overtime pay; they all worked probably 20-hour days, if not more; and they did not receive any additional compensation.

Chair Higgs stated she was extremely proud to serve next to the County employees throughout the couple of experiences; and they are competent and caring individuals who did a wonderful job for the citizens of Brevard County. She stated they employed the Policy they had for the event; Mr. Jenkins has recommended additional changes; and the great thing about the job is they keep learning and continue to try and do it better. She stated every human being in the County can relate to that; some of them did real well the first time they evacuated, then they figured they can do better, take less food, and tighten down the bolts; that is life; but the staff responded very well, and the Board needs to consider that.

REVIEW POLICY AND IMPLEMENTATION, RE: SALARIED PERSONNEL PAID
OVERTIME DURING HURRICANE FRANCES

Clerk of Courts Scott Ellis advised he does not want to get into what everybody did during the hurricanes; a lot of people worked hard and he knows that; but if the Board is going to pay everybody that was in the EOC 24 hours a day for being there, then it needs to put that in its Policy. He stated some people claimed it and some did not, just like those in the shelters; and how people stayed up five days in a row with no sleep waiting for a hurricane is just fantastic. He stated firefighters have nothing to do with this issue; they are on 24-hour shifts; that is expected; most of the people were not shift firefighters; and his belief is if they are salaried and have an emergency, they go out and get the job done with no payment on salaried overtime. He stated a salaried employee can take comp time; hurricanes do not happen every month of every year; and the last hurricanes the County had were Floyd and Irene in 1999. He stated he received some things from Frank Abbate that salaried employees got time and a half and the hourly employees got double time and a half; but for Thursday, Friday, Monday, and Tuesday, the salaried employees got the equivalent of double time and a half because they got their salary plus time and a half for the hours they worked. He stated if the Board is going to pay them, it needs to set the policy the same for everybody; it set a policy that says people do not get paid to sleep; but now it is going to say they get paid for how long they were stuck where they were and paid for the time they were there; and a lot of other Departments in the County did not claim the 24-hour days. Mr. Ellis stated when a person is in a salaried position, he or she is in a leadership position and sets an example for everybody who works in that Department; and the example that was sit during the hurricane was quite truthfully a bad example. He stated salaried people were claiming 100, 120, and 130 hours overtime and everything else fell in behind that; people in leadership positions are expected to step up to the plate; he heard from Personnel that some salaried people only get $12 an hour and some hourly people get more pay; and suggested they go back to being hourly if they think being hourly is such a great deal. He stated the other advantage of being salaried is if they work less than 80 hours, they get their full salary; and inquired if that is correct; with Human Resources Director Frank Abbate responding that is absolutely right, salaried persons must be paid their salary for the whole week. Mr. Ellis inquired if that is true if he works less than 40 hours a week; with Mr. Abbate responding yes, but he can say it virtually never happens. Mr. Ellis stated but it is the law; with Mr. Abbate responding he agrees with Mr. Ellis that it is the law. Mr. Ellis stated he has been in hourly and salaried positions; he spent four years in the military where they worked till they got the job done; and overtime did not matter because it did not exist. He stated that is what those jobs are; they are responsible positions; they are professional, supervisory positions; and they are expected to step up to the plate and get the job done. He stated he got another comment that really irked him, that if they do not pay those persons, they would not come in; that is not so; they have a duty and they will come in because they accepted that duty when they accepted the position; and money is not an issue. He stated salaried people have the ability to call themselves in; hourly people come in when they are directed to by their supervisors; and if they call in hourly people and they end up not doing anything, that is the fault of the supervisors and not their fault for coming in because they were following instructions; so why the Board wants to pay double time and a half to salaried people is beyond him; and he does not think that is right because there is comp time available. He stated EOC personnel have very intense periods and other times it is very slow; they could take comp time during the slow periods; and most everyone on the list could be taking comp time for the holidays instead of annual leave. He inquired why would the Board have to pay all those salaries other than that FEMA is going to reimburse it; that is exactly what was in the memo for the 72 hours from Friday at 5:00 p.m. to Monday at 5:00 p.m.; some employees would have taken comp time; but it is his belief they were instructed to take the overtime rather an comp time because it was FEMA reimbursable. He stated FEMA has been a corrupting influence on how the County did things; because money is free, they jump in and take it; the Board is going to set a policy here; but it is the same thing, FEMA is going to reimburse so what does it matter, instead of having people step up to the plate, show leadership and supervision, and not worry about whether they will get paid. He stated he has been there also, so it is beyond him why a salaried person would essentially get double time and a half when it is his or her job to come in; he or she gets paid eight hours regular salary plus time and a half for every hour he or she is there; and inquired why people were allowed to claim 24-hour days, five and six days. He stated the County is spending what it wants to spend; and he wants to see what FEMA reimburses.

Commissioner Pritchard stated Mr. Ellis said several times that people were putting in 24-hour days; it seems like the Board had a bit of discussion on that where they were catnapping, grabbing a little bit of sleep here and there; they were there because they were needed and were necessary; they did not leave; and they were operating like a fire station and putting out fires when they were needed. He stated the Pay Policy that was implemented was developed in 1999; so if the Board goes back to what was implemented in 1999, then what Mr. Ellis is saying about the Labor Day weekend and if they worked that day on overtime seem to refer back to the Policy that was in effect in 1999; and that is the Policy the Board will be addressing and making changes to today. Mr. Ellis stated the Board is not changing the policy that much; if it looks at its changes for salaried personnel, what it is saying now is that they receive straight time plus one half comp time; they also get their regular salary as well; and it is not a Saturday or Sunday. He stated the Board is not addressing the issue that they have gone
over of excessive overtime, or if they are in the EOC for three straight days, do they claim 72 hours worth of work regardless of whether they were up or not; it is not addressing that in the Emergency Policy; and that is a big issue. Commissioner Pritchard inquired if someone is at the EOC for 72 hours straight and for some of that time takes a cat nap, subject to be awakened to handle whatever it is they were woke up for, does Mr. Ellis think they should deduct 15 minutes or an hour; with Mr. Ellis responding quite truthfully he does not think it was 15 minutes if people started 24-hour days on Wednesday night because the hurricane did not come through until Saturday; so he understands Saturday night and Sunday morning when everybody was up and hopping; but he does not understand why he would have a logistics manager awake at 3:00 a.m. on Wednesday, Thursday, and Friday mornings, or a computer programmer, or a whole list of different jobs that are on the list. He stated they are not shift firefighters. Commissioner Pritchard inquired if Mr. Ellis was provided justification for the hours they have spent.

Mr. Jenkins advised they have to deal with different types of situations; for example, they were trying to procure fuel when there was a fuel shortage and were scrambling around trying to find fuel, generators, telephones, cell phones, etc.; and the computer system broke down so they lost the network and had no access to the Internet for a period of time. He stated they were evacuating all the special needs people and the Barrier Islands; there was more activity before the hurricane than during the hurricane; if there was a low time it was during the hurricane; and that was when they started the preparations for recovery. He stated Mr. Ellis, perhaps meaning well and trying to look out for the taxpayers’ money, needs to come and spend several days in the EOC and see the level of activity; everybody was not going every second of every minute; but they were at a Level 1 full operation, which is called for in the EOC. He stated they have about 25 emergency service functions, every spectrum one can imagine, from the community to the Red Cross; and there is an immense amount of problems and work that is done in operating shelters, fixing problems at shelters, and just evacuating people. He noted it is a huge amount of work. He stated they must have had 15 people non-stop answering telephone calls from frantic residents; his secretary was there answering phones and did not go to bed one night; they were sleeping in their chairs until the phones rang and they would wake up to answer the phones; and they had that kind of response throughout the event. He stated the Highway Patrol felt it was necessary to be there; the Coast Guard felt it was necessary to be there; and he could go on and on about all the people that were in the EOC for six days because they were anticipating a storm. He stated the salaried positions the Board keeps hearing about, Park Supervisor II, Animal Kennel Supervisor, Skilled Trades Supervisor I, Staff Specialist I, Management Specialist I, Staff Specialist III, Extension Agent, Librarian II, Golf Course Manager, GIS Coordinator, Construction Coordinator, Environmental Scientist, Road Supervisor, Animal Care Center Supervisor, Systems Analyst, Asset Management, Accountant II, and EEL Program Land Manager, many were working out of their normal jobs and in shelters doing other tasks; but those are all salaried positions. He inquired if they should be expected to go work in the shelter for six days, not get compensation for that, and take comp time. Mr. Ellis stated those people were not all there. Mr. Jenkins stated they have been trying to operate shelters for special needs for a very long time; Mr. Lay can come up and tell Mr. Ellis what a problem it has been to get people to go to those special need shelters and work there; they cannot rely on
volunteers; it is difficult to get people there; and if Mr. Ellis is asking people to work out of their job and make that kind of commitment, whether they are salaried or hourly, he should pay them. Mr. Ellis stated most of those people were parked at the EOC; they were not parked at the shelters; and a lot of people that worked the shelters did not claim 24 hours a day. He stated if the Policy is going to be when someone works the shelters or works the EOC, pay them 24 hours a day, the Board needs to write that into its Policy because some people claimed it and some did not. He stated they were not all low-level personnel; they were the Information Systems Director, Budget Director, Crossing Guard Supervisor, etc.; and a slew of hours were claimed. Mr. Jenkins stated he can assure Mr. Ellis the Crossing Guard Supervisor was not at the EOC. Mr. Ellis stated they claimed every hour they were wherever they were.

Commissioner Scarborough stated he has a problem with the concept that anybody who is salaried has complete discretion; anybody working for the County Manager should come when the County Manager says show up, even an Assistant County Manager; and he would assume they would show up; so that distinction is a little bit hard to make. He stated there needs to be a definition; he accepts that there is a certain level where they are expected to be there; but another distinction is a person who is called out of their area, like a librarian bathing people is certainly doing something outside of his or her area. He stated he is willing to move forward, but there are two concepts that seem to come up; anytime anyone moves outside into something that may be alien to them and less attractive, there should be some means of compensating for the special effort; and as they move up the ranks, there may be some level where some methodology could be used to define when they do not get extra over time by a combination of classification to salary level. He stated from the conversations, those are things that he has been able to extract.

Mr. Jenkins advised the revised Policy staff has presented today does several things; one, it says that Assistant Department Directors and Department Directors will only receive comp time and not receive any money; and he wants to point out that during Hurricanes Frances and Jeanne, he required Directors that could get paid to take a portion of that in comp time, so they did not get paid entirely in dollars. He stated the second issue is when they operated the special needs shelters, they had a variety of different levels of people in them, i.e., librarians, secretaries, etc.; they were making disparately different amounts of money; therefore, they have created a new job title for emergency situations that whoever works in the special needs shelters will get paid the same rate regardless of whether they are a secretary or librarian; and those are the only changes they made. He stated in addition to that, they have reduced the cost by saying when they close their offices, declare evacuation, and send employees home, those people that continue to work, rather than paying them, will be given comp time for the amount of time that they sent everybody else home; and for the actual hours they worked, they will get time and a half. Mr. Jenkins stated for the people that are salaried employees, excluding Directors and Assistant Directors, they are going to pay them straight time, overtime plus half time, and compensatory time, so that cost will go down as well; and those are the major changes they made in the Policy.

Commissioner Pritchard stated the Board has been hung up on the issue of salaried versus hourly; it has been an unfair treatment of some of the folks that are salaried because they are positioned throughout the organization and not where people might think they are. He stated generally a salaried person is thought of as a Department Head or Assistant Department Head; but there are salaried people in the organization much below those levels who are salaried for other reasons. He stated what Mr. Jenkins has proposed, and he assumes the Assistant County Managers have reviewed, is a collaborative effort; the Department Heads and Assistant Department Heads, if they are looking at comp time, that can be questionable as to whether or not they would even be entitled to comp time; but he does not particularly have a problem with comp time as long as it is managed properly. Commissioner Pritchard stated it is not an incentive to do something, but it is a bit of a reimbursement when someone does something. He stated some of them do not receive anything, the Commissioners do not receive anything when they work beyond 40 hours a week or put in six days straight; that comes with the job; so what the Board has here is a good beginning. He stated the discussions they had have been good regarding a critique of what has happened; and he is looking forward to more critiques, but the Board has pretty much exhausted this issue and needs to move on.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve amendments to the Merit System Policy II, Pay Plan, clarifying and modifying the rate at which exempt and non-exempt employees will be paid during declared emergency conditions and rates for which employees will be paid for recovery efforts after the declared emergency conditions have been lifted; and authorize the Chair to execute amendments to Policy XIII, Natural Disaster Personnel Rules, to conform with the amendments to the Merit System Policy II, Pay Plan.

Chair Higgs stated she will support the item, but the Board needs to think through it again because to be sure it has contracts with the Directors and Assistant Directors that are clear that their presence in these kinds of events is not just expected but required. She stated people may say they are not going to work if all they are getting is comp time, and they may decide to take their families out of harm’s way and go some place; and that would be a real loss to the community. She stated the Board needs to be careful because it does not have in place incentives that are strong enough to get its top level managers there and working; she has no problem voting for it today, but in the future, away from the event, the Board may want to rethink it; it is a big ticket and will impact the County; but the Board needs to think about it again.

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

APPROVE RECOMMENDATIONS, RE: FY 2005 FUNDING BY COMMUNITY
CULTURAL GRANT PANEL

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve the recommendations of the Brevard Cultural Alliance, Inc. for FY 2004-05 Community Cultural Grants. Motion carried and ordered unanimously. (See page for List of Grants.)

CITIZEN REQUEST - MS. J SKY, RE: OPERATION OF SHORT-TERM RENTALS

J Sky advised a year and a half ago, her family had outgrown their three-bedroom house with the addition of a new daughter; soon after she was born, they found a six-bedroom house through a co-worker of her husband; and although the house was an incredible opportunity, it did not seem feasible without a second income. She stated it is important that she be home with the children so working out of the house was not a choice at that time; additionally they loved the home they were in, had put a tremendous amount of hard work and creativity into it, wanted to hold on to it, and looked forward to retiring there; and when they were searching for opportunities of how they could keep the house, she remembered her family used to travel when she was a child and go to the Jersey Shore or Maryland Shore and stay in furnished houses where the whole family could be comfortable and prepare meals. She stated she has fond memories of that; so they became interested in that prospect and began to research the legalities of the issue. She stated upon calls to numerous State and other government offices, property management companies, realtors, and other local vacation rental owners, along with long hours of online research, it became their understanding that all that was needed was a tax I.D. number for the local and State resort taxes; and they made all the calls and were told that was all they needed. She stated they were specifically told by the County that no occupational license was needed to start the business; they went into the business, spent the next six months feverishly preparing their home, invested a second mortgage they had taken out on it into making the home much better, and greatly improved the aesthetic value and curb appeal of the home. She stated their budget was tight so they left behind just about all their furniture to furnish the house for their guests; and they stocked the house with all the household necessities, and began receiving guests in April 2004. Ms. Sky stated since then, they have had nothing but positive experiences with all their guests; they rent pretty much exclusively to single families and have had no complaints from their neighbors; and they also learned that most of the people who are coming to rent from them have ties to the community and are here for anniversaries, family reunions, birthdays, etc. She stated they do not rent to young singles or large groups and handle all the cleaning, yard care, and pool care; they put a lot of hard work into it; and now they feel they can look forward to family vacations and college tuition as being a reasonable reality for their family with the little bit of extra income. She stated until August 24, 2004, they believed they were operating under the law from the way they understood it; and to be restricted from doing short-term rentals as the August Board meeting seemed to have done, will have serious ramifications on their family and many other families that are also in the same situation. She stated there are many others who went into the business who tried to find guidance from the local government and were told they did not need occupational licenses to operate that kind of business; many of them left the meeting believing no enforcement would be taken until County staff could further investigate it and issue a full recommendation; but Code Enforcement is pursuing some property owners at this time with severe penalties for continuing to operate. She stated the hurricanes have demonstrated a need for short-term rentals; in the Board’s emergency meeting, it made some exceptions to who they could rent to, such as aid workers and displaced residents; and requested the Board add tourists to the list as there are still many hotels down. Ms. Sky stated the Board caught all of them in a situation where they did not realize it was happening; they all need time to investigate the legal ramifications of this issue before Code Enforcement action is taken against them; generally they have no objections to any regulations or State licensing requirements and are willing to be in compliance with that; but they request the Board not shut down their businesses right now as it could have serious ramifications for them. She stated they bought another house based on the income they were counting on from the rentals; and if they lose it or were shut down right now, they stand to lose both houses.

Jan Hill of Rockledge advised she bought three condominium units in Titusville as diversification of her investments because the stock market was not doing very well; she bought them from someone who was renting them seasonally for 20 years in the City of Titusville; and suddenly this ruling came out that she needed a business license and the Board was going to stop them from renting on a short-term basis. She stated she is not sure if it was less than a week, month, or three months, and if they did not comply they would have a $1,000 a day fine; that could devastate them financially; they provide a service to the community; she had no complaints from other owners; she is Chair of the Homeowners Association and works hard to manage the condos and improve the property; and she spent a lot of hours arranging for maintenance and improvements. She stated the Board prides itself on protecting property owners’ rights; however, it appears sometimes only the rights of developers are protected; and most of them, who are just little guys investing in property, apparently do not have their rights protected. Ms. Hill stated vacationers do not use the school system; therefore, the question of impact fees has not been an issue; they bring tax dollars to the neighborhoods and tourism industry; they pay 6% sales tax to the State and 4% resort tax to the County, which they are happy to collect; and their visitors provide income for local businesses because they use the restaurants and facilities in the area. She stated to penalize them in this way is unconscionable; if they have to fight it, they would have to hire a lawyer, which they do not want to do; they would have to pay for the lawyer themselves; and it will not bother the Board because it would be defended by taxpayers’ money. She stated it seems particularly unfair and unjust that the Board retroactively and unilaterally suddenly changes the rules placing the goal post in a different position halfway through the game; some condos and rental places restrict them; and their condos provide regulations for people who want to live in them. She stated if a dog next door is a nuisance, nobody in the County can have dogs; if children shoot her window with a BB gun, nobody in the County can have BB guns or children; that is what the Board is doing by generalizing a problem that has bothered a small number of people and is dealt with within a Subdivision or condominium complex; and that is grossly unfair and will put a great burden on all of them.

Commissioner Scarborough inquired if Ms. Hill’s property is in the City of Titusville; with Ms. Hill responding yes. County Attorney Scott Knox stated it does not apply inside the cities and only applies in the unincorporated area because it is not a Countywide ordinance.

Assistant County Manager Peggy Busacca advised the Tax Collector may be telling people in the cities and the County that they have to get occupational licenses. Mr. Knox inquired if the Tax Collector is basing that on State law; with Ms. Busacca responding she does not know what he is doing about that, but their Board direction was that Zoning should not approve occupational licenses in a residential category; and that would only affect the unincorporated area. Commissioner Scarborough requested Ms. Busacca check with the Tax Collector as to what is being said; and advised Ms. Hill that the Board’s action does not impact her property, but there may be something else happening, and he will find out and get in touch with her.

Chair Higgs inquired what did the Board say in regard to multifamily residences when it was discussing residential property; with Ms. Busacca responding she does not believe there was any discussion of multifamily versus single-family regarding abatement of enforcement. Chair
Higgs stated she had a couple of calls from people who have condos and she could not recall how the Board distinguished those; but she knows the major discussion was about single-family homes in residential areas.

Zoning Manager Rick Enos advised the discussion was solely about single-family, and the direction said do not approve zoning use permits, which is the zoning side of the occupational license, unless the property is properly zoned. He stated in order to be zoned properly, they need to have commercial classification, so even though the Board only discussed single-family, the direction applied to single-family and multifamily.

Commissioner Scarborough stated the Board could change it because in a condo complex there is a different environment; and staff could help the Board structure the change. Mr. Enos stated the Board directed staff to come back with options it could consider and that distinction is something the Board may want to make in a Code change. Commissioner Scarborough stated in a condominium complex they have covenants and an association, which define the community separately, while in a single-family residential area, they have to look to the Board. Chair Higgs stated the Board needs to be careful in using the word “condo” because there are multifamily residential areas that are not condos, so a distinction needs to be made on that.

Juanita Brooks of Melbourne Beach stated in 1978 she bought her property in the unincorporated area of Melbourne Beach with the idea of having three units, one, which is two-thirds of the building, as her private residence, and the other two with the intention of renting them to help her pay the bills. She stated there have been a few changes over the years; she originally had long-term rentals, but that has changed; and presented documents to the Board, but not the Clerk. She stated in the last ten years, her property taxes increased 79%; of that 79%, in the last five years, it has gone up 73%; her insurance costs in the last ten years have gone up 132%; and based on the storms this season, she was told by her insurance agent that they can expect the cost to go up another 50 to 100%. She stated she comes from a working class background, is not a wealthy person, and cannot afford to live there any more unless she has the short-term rentals, which she began about a year and a half ago. She stated she did all the research to make sure she was in compliance with the law and was told she was in compliance; and she pays State and resort taxes. Ms. Brooks stated part of why she changed to short-term rental a year and a half ago is because three years ago she had been self-employed and was not able to work any more because she was diagnosed with a life-threatening disease and was given five years from the diagnosis with a 50% chance of living; she does not want to move; and if this goes through, she may have to move because she will not be able to afford to live in her residence. She stated she lives on the ocean; there is nobody on either side of her property; for a block there is a National wildlife refuge on one side and County land on the other side that is part of the Archie Carr project; and the maximum people who rent from her are two per unit. She stated she is there to manage everything; she has wonderful guests; and requested the Board look at all the nuances related to this issue and not make any hasty decisions. She requested the Board not look at it as one size fits all because there are a lot of nuances involved; and while the Board is investigating the issue, that it allow her to continue to rent as she has been and to honor the contracts that she presently has for the next year with many guests, some from other countries and all from out of State.

Commissioner Pritchard stated having Ms. Brooks living on the property probably makes a difference in the type of clients she has and what the goings on may be; her property taxes in 2001 were about $5,500; and in 2004, they were $8,500; and inquired if that is because the valuation increase or something she did to improve the property; with Ms. Brooks responding the valuation increased. Ms. Brooks stated she has homestead exemption on two-thirds of the property, the part she lives in, but the one-third she rents does not go with that; and the cap does not exist for that one-third of the house, so the taxes have gone up tremendously. Commissioner Pritchard stated it has gone up roughly $1,000 a year. Chair Higgs stated but it stayed flat for about eight years. Ms. Brooks stated she bought the property with the idea that when she retired, she would be able to support herself. Chair Higgs inquired if it is zoned RU-2-4; with Ms. Brooks responding it is zoned RU-2-6. Chair Higgs stated it is multifamily; and if the Board entertains the idea of multifamily, then that would possibly affect Ms. Brooks’ situation.

Barbara Van Dam of Melbourne Beach stated she has been a resident of the South Beaches since 1976, a real estate agent since 1978, and is here to address the Board’s directive that only allows hurricane workers and victims to reside in resort homes. She stated the time extends into the winter season; some returning winter tourists have had deposits on resort homes since last season; many are elderly retired folks wintering in the South Beaches for years who continue to support the local economy; and many owners purchased those properties over the years to eventually make them primary residences, but are renting them now to support their investments. She stated renting was permitted at the time of their purchases as long as the State Hotel and Motel Rules were followed and resort taxes were paid; property taxes are not protected by homesteading or Save Our Homes and have drastically risen, sometimes doubling, creating a nice County revenue; and property owners in the South Beaches have been hammered by the recent storms and have very large deductibles. Ms. Van Dam stated because of the County’s licensing change and the new directives, many of the owners may now be forced to sell; and those properties may be purchased by homesteaders, decreasing the County’s revenues and creating more year-round traffic, larger school class sizes, etc. She stated many of the South Beaches motels have been replaced by zero lot line large homes leaving a scarcity of rental units; the remaining rental units generally only accommodate two to four people per reservation; and requested the Board include all citizens because it is unfair to permit a certain group of people to have access to resort homes, and perhaps the primary and secondary directives were made too hastily. She stated Florida and Brevard County owe a large part of their incomes to the tourism industry. She thanked Commissioner Higgs for a job well done and done tirelessly with integrity and caring; and stated they will miss her.

Chair Higgs inquired if generally the length of stay is 30 days; with Ms. Van Dam responding State law calls for it to be 30 days; there are people who come for less than that in the summer; but State law requires 30 days.

Karen Corville of Melbourne Beach stated she is a resident and realtor and concerned about short-term rental restrictions and their impact on the economy; property values have gone up tremendously in the South Beaches; in the last two years, that is relevant in the tax increases they have seen; and it is her personal experience that a lot of that is based on the rental ability. She stated there are ads on the Internet that bring so many people from all over the world to Melbourne Beach; they have people from Germany, Poland, and other countries; they have a lot to offer; and that has had an impact. She stated she has several people she works with that invested in the community because they could rent out; they rent out responsibly; they secured appropriate licenses and pay the required taxes; and they adhere to the guidelines set by the homeowners associations. She stated all of them are good about notifying neighbors and making sure they are involved and happy and do not have a problem with them doing it; and she is concerned that this is going to affect their property values and the local economy as they are bringing all the tourists in who are supporting the local businesses.

Charlie Coulter of Melbourne Beach stated he is nervous about speaking; he is a Boy Scout leader and usually when he teaches the scouts, it is easier because they know they have to be there and are not interested and not listening to him; but he is a vacation home rental owner and one of the evil people who lives out-of-State who has a house here. He stated his rental house is managed by an agency, which is located directly across the street; it has done a wonderful job since he bought the house; and he also understands this is a hot topic. He stated homeowners seem to be fearful of two specific things, the effects of vacation home rental property values as well as the age-old fear of the unknown, and in this case, the unknown neighbor. He stated the complaints he read in the public records are on four specific issues, parking, noise, pets, and house maintenance and upkeep; and all of those are the same concerns they all have about their full-time neighbors. He stated he is a homeowners association president and receives the same complaints; and he directs people to follow four procedures, go to the homeowner directly, go to the homeowners association, go to the Zoning Department if it is an upkeep violation, and go to the police if it is a more serious infraction. He stated his point is short-term rentals are no different; they have the same four avenues to try and correct the problems; he spent the morning driving around with his next door neighbor looking at sand issues on the beach because their beach received a lot of erosion; they all live within an hour of the beach; and transients in this case are the tourists who come here. Mr. Coulter stated the beach is an attraction; within two doors of his house is a small motel, so when he is out on the beach and the people who rent his house are on the beach, they are with the same people from two doors down; and begged the Board to protect his vested rights. He stated prior to August 24, 2004, he had 17 weeks of reservations planned; and he has not told them it is canceled because he is hoping the Board can grandfather them in or change its opinion on this matter. He stated prior to August 22, he was completely legal; after August 26, he was suddenly in violation; and as his colleagues mentioned, they pay the sales and resort taxes and do not have homestead exemptions. He stated they bring tourists and their dollars to Brevard County; an estimated 200 homes in the County are affected by this; the impact would be about $18 million a year, which is fairly significant; and the Board can estimate anything it wants, but it cannot deny the fact that the people are here.

Commissioner Pritchard inquired if Mr. Coulter said he was an out-of-town owner; with Mr. Coulter responding yes. Commissioner Pritchard inquired why should the County manage his property. Commissioner Pritchard stated if he has renters that have a party on the weekend because they are on vacation, why should the County have to, through Code Enforcement, manage what he should be managing. Mr. Coulter stated he does not expect the County to address those issues; his agency that handles the house is directly across the street; and in the last two years of rental operations, they have not had one complaint from either of the neighbors. He stated he does not expect the County to address anything; and his point is if they had a neighbor next door who had loud parties, they would have the same problem as if they had a vacation rental person there. Commissioner Pritchard stated it could be multiplied by having a vacation renter; the neighbor might have the occasional party and may be more considerate of the neighborhood because he lives there full-time; but someone on vacation may come in and want to party; and the next week they have the next group and they may be a quiet group, but the one after that may want to party. He inquired if Mr. Coulter has a single-family residence; with Mr. Coulter responding yes.

Peter Denapoli of Melbourne stated he has rental property in Melbourne Beach on A1A and wants to have an opportunity to voice his concerns about the County Code as it relates to short-term rentals. He stated he lives in Boca Raton; he has rental property here with the intent of some day it being his retirement home because it is on the beach and a lovely place; he spent a great deal of time investigating the location they now own; and one summer his wife and he cruised the whole State coastline looking at various investment properties and landed in Melbourne Beach because it is a spectacular place. He stated it is pristine and has unique aspects including the turtle sanctuary; and he has a great deal invested in the property. He stated they rent their property primarily long-term, but there are short-term opportunities they would like to take advantage of; he is not a rich person and needs the income; he enjoys the property as often as he can; and requested the Board defer its course of action that is being considered or is in place now because there is a relatively large group of people who have very specific investments and commitments. Mr. Denapoli stated he pays taxes here as well as in Palm Beach County; those taxes are used to support the community and counties and provide for additional services; they do not have children, but support the educational system; his wife is a school teacher; rental agreements can be used in the same way that homeowners association guidelines can be utilized; and they can do things for specific aspects of how they choose to rent their properties. He stated they want to do the right thing; they want to be able to use their home as they do throughout various parts of Florida, the country, and the world; they have it as an investment revenue income to afford things; and requested the Board reconsider the Code compliance aspect of short-term rentals because it will impact their future.

Commissioner Pritchard stated he has no idea how much a short-term rental goes for; and inquired if Mr. Denapoli could give him a ballpark figure and would it be a weekend, week, month, etc. Mr. Denapoli stated based on a monthly rental, it is about $1,200 a month, which is in some cases less than a hotel room; and it is an opportunity for people to have a good place to stay for relatively low cost. He stated it depends on how many rooms are taken, as he has an upper and lower unit. Commissioner Pritchard inquired if Mr. Denapoli rented it for a weekend, would it be $300; with Mr. Denapoli responding he does not often do that; it is primarily a monthly rental or long-term which is what he prefers because it does not harm the property as much; and they would not have the turnover they do in short-term rentals. He stated many people come here for vacations; and they like to come between November and April.

Robert Lombardo of Cocoa stated he owns two condos, one in Cape Canaveral, which is in the City, and the other on A1A, which falls out if the Board is not considering multifamily dwellings. He stated he is not Donald Trump, he is a truck driver; he lives in Cocoa, just had a stroke four weeks ago, and has congenital heart problems; being a truck driver, Department of Transportation is not going to let him drive any more; so he is looking at his main income being the two rental properties. He stated he does not know how it is going to work out for him; it looks like it will work out because they are condos; but other people in his situation say it could be a bad thing.

Gina LaPrew of Melbourne Beach urged the Board to take as much time as it needs to research all the issues regarding its directive of August 24, 2004 because it affects about 200-plus property owners who rent short-term. She stated she does not know what that means tax-wise or what the impact is, but requested the Board cease Code Enforcement without discrimination until they can come together and discuss grandfathering rights and study findings that the Board directed the Zoning staff to come back with. She stated most of them cannot afford to stop operating in the interim; they have taken reservations in advance; most hotels right now are booked and some are closed; and they all did research on property rights before buying their properties. She presented a document from Mel Scott when he was Director of Planning and Zoning dated June 7, 2001 to show the Board they told them they did not need occupational licenses and they were following the rules and the laws and paying their taxes. She requested the Board not continue with Code Enforcement until it comes back together at a later date. She stated there seems to be a misunderstanding of what short-term rental means; and inquired what is the County’s definition of short-term rentals.

Commissioner Pritchard stated his definition of short-term rentals is less than six months; it could be a weekend, week, or month, but less than six months; and he based that on sales tax they pay when they rent. He stated if they rent for six months, they pay whatever; and if they rent for less than that it is a higher amount; so most rental agencies would go for six months. Ms. LaPrew inquired if it is six months or less at this time. Mr. Enos advised Florida Statutes, Chapter 509 defines resort dwelling as a stay of less than 30 days or a month, whichever is less; if the home is rented exceeding a month, then it is their understanding an occupational license is not needed; and the occupational license is needed only for periods of less than a month. Commissioner Pritchard stated most homeowners associations’ covenants require or eliminate opportunity to rent homes for less than six months and in some cases twelve months; there are a lot of homeowners associations that have nothing in the covenants and neighborhoods that do not have homeowners associations; so the Board is trying to fill in the gap. Ms. LaPrew stated in municipalities such as Melbourne Beach, some of them do not address short-term rentals; and inquired if this directive overrides the municipalities; with Chair Higgs responding Melbourne Beach and Indialantic both have Code provisions. Ms. LaPrew stated Indialantic does, but Melbourne Beach has it in certain areas but not in all areas. Chair Higgs stated they address the issue in a different way than the Board is discussing. Ms. LaPrew inquired if it overlaps in city limits; with Chair Higgs responding the Board has not discussed a Countywide Code and talked about the unincorporated area only.

Jennifer Tweeddale of Melbourne Beach requested an abatement of Code Enforcement for a few issues; she hopes they will all see a need for short-term rentals, especially after the hurricanes; they have been renting their houses to different aid workers from the State and displaced residents who have not had power for a few days or a week; and most of them advertise on the Internet for vacation rentals. She stated she put a clause on her Internet site that they cannot rent to anyone other than displaced residents or aid workers; it has caused her to get more feedback from vacationers that she had prior commitments with before August 24, 2004; people from Denmark who have airline plans are asking what they are going to do this winter season; and at this point she is trying to hold everybody off as much as she can until they can come to an abatement of Code Enforcement. She stated she had many calls from people begging to let them come and stay. Ms. Tweeddale stated she has three children; they always stay in Quality Suites whenever they go on vacation because she and her husband do not want to split up in rooms; and some motels do not let a family of five stay in one room except for the Quality Suites. She stated she called the Quality Suites, and they are down and will not be operating until late summer 2005; they have quite a few families that are looking for a family place to stay right now and who have reservations in some of the hotels; their soccer tournament is coming up; the Melbourne Regional Challenges are bringing in soccer teams and families from all over the State; and she had many calls from people wanting to stay in the place where the conventions and soccer tournaments are held. She stated at this point she does not know what to tell them; and if they do not offer them some place else to stay, they will go to Orange or Volusia County for their lodging and spend their tourist dollars there. She stated when they evacuated they went to Jacksonville; their budget was seriously dented; and they spent about $1,500 for a four-day weekend for their family of five. She stated she has families that want to come for the soccer tournament who want to have reservations for a week because their reservations were canceled; and requested the Board abate some enforcement while they are working through this issue and until staff comes back with the study to present to the Board. She stated she hopes the Board will say they need short-term rentals, but not a lot of it; she does not want to live in Orange County tourist neighborhoods where they have tons of tourists as neighbors; but there are a few short-term rentals; and she hopes the Board sees a need for them with some regulations. She stated they are happy to obtain licenses and live by any Codes and regulations the Board puts on them; but requested that the Board not shut them totally down.

Pam Pipher of Melbourne Beach stated they moved to Brevard County from South Carolina; they had a business there that they sold; and with the money they made on the business, they decided to invest it in property and bought two brand new homes in Melbourne Beach. She stated they spent a lot of money on them; they are not cheap and are furnished beautifully; she spent tons of time furnishing them from lamps to televisions and VCR’s; and they had to do the whole gamut when they rent the homes out, so a lot of money and time were spent making the homes really nice to rent out. She stated she lives a half mile down the road and watches her renters; she goes by the homes ten times day; she has three children and is up and down the road a lot to keep an eye on her rental properties; and she is careful who she rents to, checks the people out, asks a lot of questions, and is very strict about families she rents to. Ms. Pipher stated rental homes that are not allowed to be rented are worthless; the big investment they put into it would be gone; they could sell the houses; the furniture was very expensive; and she does not know what she would do with all that. She stated part of their income would be gone; if people have to sell their properties, there are going to be a lot of properties on the market and that is not good for the market; property values would go down with all those properties that have to be sold; and those properties are needed from time to time. She stated she had five insurance adjusters staying in her rental; they were here and needed so at that time her property was important to the insurance adjusters who did not want to stay in a hotel and wanted to be able to cook and that sort of thing; and requested the Board think about the scenarios of why they need the rental properties.

Attorney Mason Blake, representing J Sky, Jennifer Tweeddale, Juanita Brooks, and Gina LaPrew, whom he met for the first time Friday afternoon, stated they are very concerned. He stated he was at the August 24, 2004 meeting on another matter at one of the all-day sessions the Board undergoes so many times, and heard all the discussion; and it was a wide range of discussions on resort homes, different circumstances, condos versus single-family homes, etc.; and as he heard it, staff was directed to go out and study what other counties and areas did and come back with alternative recommendations. He stated the Board indicated at that time that it did not want to be issuing occupational licenses and might grandfather it in; he heard, as an independent person with no ox in the ditch on the issue, that the Board wanted to regulate the resort home business because of the concern about its impact on neighborhoods, and that it might even ban them from neighborhoods in the future; and he also heard, or felt he heard that the Board wanted to insure that existing resort homeowners were treated with some fairness. He stated there was talk about grandfathering at that meeting; there was no mention, at least that he heard, that resulted in a decision not to issue occupational licenses to resort home operators and that they were going have Code Enforcement actions initiated. He stated that sort of backed up the memo explaining the background to the August 24 meeting, which basically states the County Code does not specifically regulate resort homes now since single-family residences are not regulated by length of stay; and he also received a memo that was passed to the Board from Mel Scott through Peggy Busacca indicating Brevard County does not regulate the resort home business; but that is not what happened. He stated in fact the reason J Sky put this issue before the Board is Code Enforcement proceedings were instituted against her friend Jennifer Tweeddale; she was threatened with $1,000 a day fines; and that was not what they had in store for them when they left the August 24 meeting, and certainly not what he heard, but that is what happened and that is why everyone is here today. Mr. Blake stated they understand the need for regulations and for the Board to protect neighborhoods; but at the same time, they would like the opportunity to not be put out of business pending the Board taking the appropriate deliberate look at the policy issues involved and making decisions it feels are necessary for the benefit of the County. He stated hopefully at the same time the Board will insure that the citizens who have been paying their taxes are not penalized, are not put out of business immediately, and have the ability to be grandfathered in; and if they are not grandfathered in, at least they should not be put out of business immediately. He stated the reason J Sky brought this issue to the Board is to have Code Enforcement abated and to include tourists in the exemption through the remainder of the season until the Board gets the overall policy issues worked out. He stated that is the footing they would like to leave on.

Commissioner Carlson inquired if Mr. Blake sees an issue of vested rights; with Mr. Blake responding the County has done nothing; the only thing that happened is the Tax Collector phoned the Zoning Office and said the folks need occupational licenses; that is the only thing that changed; the Board did not do anything; he is not sure the State did anything; and after the Tax Collector made a phone call, they are getting hit. He stated they have been calling agency after agency to make sure they were doing the right thing and not breaking the law; and now they are hit with $1,000 a day fines; and that is not fair. He stated as to vested rights, he has not looked at that issue as he has only recently met with his clients.

Gene Cimino of Merritt Island stated it is strictly about money; he is not Donald Trump and only owns one home; and those people have a home and two others. He stated Commissioner Pritchard asked a good question about what they charge for a month; the gentleman said about $1,200; and presented copies of ads from the Internet to the Board, showing it is $1,100 a week. He stated there was a lawyer at the meeting; he said he met with the resort property owners; if the Board would notice, he is the only one speaking against it; and he will tell the Board what is wrong with it. He stated he lives in a single-family residential neighborhood; they wanted peace and quiet when they bought their house; they do not want people there every other week or even shorter than that, three days, from all over the world coming to party; and they have pools in those places near bedrooms with kids during the day and parents at night using them. He stated his wife had a stroke two and a half years ago and was diagnosed with colon cancer about a year and a half ago; she is having a major knee replacement on January 18, 2005, due to arthritis; the Board made the right decision when it came up with Code Enforcement as far as the fines; and what they are asking the Board to do is go back and change what it thought out after listening to the residents, and the people who live there full-time and have to live with it. Mr. Cimino told his wife to call eight hotels; they would not tell her how many rooms they had available for ten or more people, but Best Western in Cocoa said yes; Econo Lodge said yes; Clarion Hotel on Merritt Island said not now but it will on the 15th; Holiday Inn Express said yes; Ramada Inn said yes; Super 8 in Cocoa said yes; that was just a random sampling; and to say there are not many resort homes licensed in Brevard County that are going to hail the big displaced vacationers that are coming down is ridiculous because they can handle it. He stated the other item mentioned was loss of value; and inquired what if he wanted to sell his home, and who wants to live next to that. He stated it is his understanding of real estate law that if he had a broker represent him, there has to be full disclosure; and the sale can be reneged later, for lack of a better term, if he does not disclose the business operating behind his house with different people every week. He stated some of the complaints that were issued at the last meeting were people being drunk and disorderly, naked, parking on lawns, 10 to 12 occupants, and people coming in with pillows. He stated he called Bobby Bowen and talked to him a few days ago and showed him the website; he was on the Internet at the same time he was and they were talking on the phone; he emailed the person; the person basically thumbed his nose at him and kept advertising on another site called rentalo.com; and that is how he got in contact with the email. He stated they just do not care; he called Code Enforcement again; they are sending an inspector out again; and they are supposed to go up there today. Mr. Cimino stated his wife took pictures but did not have the chance to get them developed; there were people from England the week before, and no displaced aid workers unless they brought their families because the week before they heard babies crying outside. He stated it is a serious problem; the people talk about condos and maybe that is a different issue in a multifamily area; but when one buys in a single-family residential neighborhood they want peace and quiet and are entitled to enjoy their property. He stated he hopes the Board does not go back on what it said it was going to do and lift it, and he would have to wait until April, 2005.

Kathleen Parsons of Melbourne Beach stated she came to the meeting to get clarification; she has been a realtor for 20 years in Melbourne Beach; Commissioner Higgs was her neighbor; and she has represented many owners that bought in mostly gated communities and have been renting their properties for many years, mostly to snowbirds who have been careful to be understanding of the people who live there. She stated most of the people are elderly who are coming, but they do rent to others occasionally; in 15 years they probably had a couple of situations where noise from children was not acceptable; but no one has made a complaint about it. She stated her concern is she could not get clarification on gated communities, multifamily with single-family within a gated community essentially on personal property because the streets are not owned or maintained by the County, such as Beachwoods that maintains its own land and paved its streets, but gets trash removal services from the County. Ms. Parsons stated a single-family home that is being used as a resort rental needs to have an occupational license; and inquired if the County would give an occupational license to someone that has a home in a residential community. She stated she was not sure how to handle it and was not sure if they were talking 30 or 90 days because she could not get clarification on that; most of the properties she represents would not rent for 30 days; most are rented for 90 days to a year; but there are quite a few 90-day rentals they handle and they are mostly winter residents. She inquired what do they need to do; stated they are under rental management contracts through the company; they each own a single-family home within a community such as Indian Landing, Turtle Bay, and those are communities that are basically own their own land and personal property. She stated she needs to know where to go because she has to contact the people she represents and tell them whether they need to have an occupational license or does her license cover them because they are collecting the taxes when they rent the places and are reporting it, and doing their resort taxes every month. She stated she wants clarification and is not sure she knows exactly what is meant by multifamily and if they are excluded or not; and inquired if the Board is talking 30 days and where do they go from there because they do not have anything that they do less than that and most of the time it is more. Chair Higgs stated some of the properties Ms. Parsons talked about are strictly residential, but one of the developments is a PUD; with Ms. Parsons responding they are all PUD’s because some have attached homes, duplexes, and single-family homes. Ms. Parsons noted Indian Landing has duplexes and single-family homes.

The meeting recessed at 5:00 p.m., and reconvened at 5:08 p.m.

Chair Higgs advised the request from J Sky is to consider displaced vacationers, but the Board has heard a gamut of concerns in regard to this issue.

Commissioner Pritchard stated as near as he can recall, the issue surfaced because of a concern they had for single-family residents; and the many complaints his office received were in single-family neighborhoods where homes were being rented for weekends and weeks and there were parties going on. He stated it was quite a problem for the people who live there. He stated it was mentioned earlier that the Board is not protecting property owners; it is protecting property owners’ rights because there are neighbors that they are concerned about; and it is the single-family residences that concern him, not the multifamily condominiums, because the complaints he received were from people living adjacent to properties that are rented for a weekend or a week. He stated generally people on vacation tend to come and enjoy whatever it is they are here for; generally it means the folks are of a mindset to party; some have shot off fireworks and it was not even the Fourth of July, because unfortunately they are available and people buy them, go back to their rental units, and fire them off; so the problems associated primarily with the single-family residences has been his focus and intent. Commissioner Pritchard stated there are some adjustments that can be made; he understands the concerns of people who purchased the properties as an investment as well as an income; the dollar value given to him earlier of $1,200 a month seemed a bit low and he said to Commissioner Carlson he thinks they meant $1,200 a week because they have to pay the mortgage, cleaning, and maintenance, and need to make a profit; and they have no homestead so the taxes are higher, so there are a lot of factors that figure into it. He stated it does not mean they cannot have rentals in single-family neighborhoods, it means they need to look at the length of time and perhaps a month is too short; maybe three or six months should be the minimum; and as he mentioned earlier, some homeowners associations actually prohibit less than six months or 12 months to maintain the integrity of the neighborhood. He stated they are very selective; in fact the homeowners associations that have those rules in their covenants enforce them; and they do not allow multiple vehicles parked out front but limit to two because they do not want it to become a rowdy neighborhood. He stated those are some of his concerns; and he is interested in hearing what the other Commissioners have to say.

Commissioner Carlson inquired of Mr. Knox, based on how the short-term rentals have been treated with a lot of the commentary being they just did what was under the law, etc., what vesting, if any, or required grandfathering or anything like that would be necessary. She stated Florida Statutes, Chapter 509 that Mr. Enos brought up says short-term is less than 30 days; and inquired if that requires an occupational license, when do they need one, and when do they not need one based on State law.

County Attorney Scott Knox stated he wants to go to the issue of vested rights because that is where the real issue is; based upon what he heard today, there may or may not be issues of vested rights; it sounds like some of them certainly can make a claim for vested rights, and there are probably other claims that can be made too; but he would advise the Board that it should look at some of the legal issues that might come out of this if it chooses to go one direction versus another direction. He stated based upon some of the things he heard, he has some ideas where those problems might be; so his advice to the Board is to abate the enforcement for a little while so they can get a report back to the Board so it will know where it stands before it moves forward.

Commissioner Carlson stated Ms. Tweeddale said they were getting Code Enforcement violations based on the fact that they either did or did not have an occupational license; and inquired, based on the August 24, 2004 meeting, what has actually changed and how does that impact resort homes. Mr. Enos stated what has changed is that the Tax Collector has been requiring occupational licenses whereas before it was stated they have not required occupational licenses; so it boils down to whether or not it is a business operation, and Department of Business and Professional Regulation thinks it is as long as the term is less than 30 days. He stated that is why staff brought the issue to the Board whether it should be issuing occupational licenses or not for single-family or even multifamily residences. Commissioner Carlson inquired if some of the individuals who spoke and have those types of residences are in violation based on the State law and Tax Collector; with Mr. Enos responding that is correct; but whether or not they have vested rights is an outstanding question.

Chair Higgs inquired if Mr. Knox is familiar with recent litigation that is going on in the Keys and may have recently been resolved in the Circuit Court; with Mr. Knox responding no, that is one of the things he needs to look at. Chair Higgs stated it is new territory in the State and Appeals Court; and they have been through it on both levels. Mr. Knox stated that may be true, he has not seen the case yet; but there may be issues that they did not consider in that case that he is thinking about.

Commissioner Colon stated the last time this discussion took place, she was under the impression that the folks who were already renting and so forth was still a question and they had to figure out what the numbers were; but at that particular point, the Board was going to stop any future short-term rentals. She inquired if that is what is happening; stated she is concerned that it is the direction the community is headed; and inquired at what point is the Board going to stop it. She inquired if the Board stopped it, not the folks who are already renting, but anybody who called the following day, or did she misunderstand. Ms. Busacca stated if the Zoning Office were to receive a request for an occupational license, it would be denied; what has happened with Code Enforcement is staff received complaints; Code Enforcement went out to address where the complaint was from; and they had noted there was no occupational license and were moving forward to enforce it because there is a business being conducted in a residential zone with no occupational license. Commissioner Colon inquired if the reason those folks were cited is because they are operating as a business and have no licenses; with Ms. Busacca responding that is right.

Chair Higgs stated it would be possible to consider abating Code Enforcement on currently operating businesses that have done the necessary process including being licensed by the State and paying their resort taxes. Commissioner Colon stated she is concerned that those folks automatically think they are okay; she does not want to give them a false sense of security; and they might think if they get the license they belong to that group. Chair Higgs inquired if they have the appropriate State license and operated before August 24, can the Board abate enforcement based on qualifications like that. Ms. Busacca stated that is a legal question, but it would make it more difficult for staff to enforce because they would have to go out and investigate each person’s qualifying paperwork; and considering the staff report should be back within a month or so, it would be easier to abate all of them for that period of time. She stated one of the issues that has not been addressed is if someone today set up a lease for next year, how would that be handled; and if the Board is going to do any abatement, it may want to consider that because they may be setting up vested rights or something like that.

Commissioner Carlson stated what the Board did on August 24th is approve Option 2, which denies zoning use permits for resort homes in residential classifications; those are new permits or licenses, not the folks that have been in existence; but they are coming in because they did not realize they had to have an occupational license. Ms. Busacca stated staff never approved an occupational license because they were not previously required, so there are no old occupational licenses for resort homes.

Commissioner Pritchard stated he is confused about the type of license the Board is talking about; it is saying occupational license then talking about a license that the Department of Business and Professional Regulation requires if the rental is under 30 days. Ms. Busacca stated that is for a State license; there has always been a State license required; it was relatively recent that the County has been noticed that an occupational license from the County is now required; and that has been the change that brought this to the forefront. Commissioner Pritchard inquired what is the purpose of an occupational license; with Ms. Busacca responding Zoning reviews occupational licenses to make sure the property is properly zoned for the use; and the question that staff came to the Board with is that the Code does not specifically address this use and should this use be considered a proper use within the residential zoning category. She stated she did not answer the question fully because there are many reasons for occupational licenses, but she believes that is the intent of this discussion. Commissioner Pritchard stated generally it is to limit the type of commercial activity that would occur in a residential neighborhood. Ms. Busacca noted and to make sure it is consistent with the Code. Commissioner Pritchard stated a CPA could perhaps work at home if he or she insures limited traffic, few clients, etc.; but a cabinet shop might have noise and dust so the application is towards the type of business people are interested in running; and he can see why it has come to this situation.

Commissioner Scarborough stated Mr. Knox said he needs two weeks, so he will make a motion on that.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to abate Code Enforcement on resort rentals until November 30, 2004; and direct staff to return with thoughts on the multifamily environment, address the issue of usages that may come into play, and advise of the results of litigation in the Keys.

Commissioner Colon inquired if there is any way for anyone who had a State license before August 24, 2004 to show proof they were already doing business, and anyone who did not have the license will not be approved to operate a resort rental. She stated people watching the meeting may say there is a lot of money to be made in the business and start renting their houses short-term; that is the type of thing she is trying to discourage; and inquired would that be something that would be considered, and does that make sense if that is how those folks can prove they have a State license.

Chair Higgs stated if they do not have a State license, they have not operated consistent with State law; and if they want to fall back on the County did not say they had to have an occupational license, she cannot imagine any kind of vesting if they never even operated lawfully.

Commissioner Scarborough stated all the motion says is abate Code Enforcement to get fully advised on options when it comes back.

Chair Higgs stated the memo needs to get to the issue of how to keep from there being a flood of people between August 24, 2004 and November 30 and what provisions can the Board invoke so that it does not have additional people affected. Mr. Knox stated his recommendation is abate enforcement; it does not mean it is carte blanche to go out and open those types of establishments; it means the Board is not going to enforce the provisions it has established at this point; but anyone who decides to open one up takes the risk of being shut down because the Board is just abating enforcement, which does not mean it is letting anybody continue in the future. Chair Higgs stated it is like the red flag doctrine. Mr. Knox stated the rule is they cannot do it without an occupational license; so anyone who opens one without an occupational license would be in violation of the law.

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

DISCUSSION, RE: FEMA ASSISTANCE BY INTERNAL AUDITORS

Clerk of the Courts Scott Ellis advised if Mr. Beck works on a FEMA reimbursement item for Solid Waste, when Solid Waste undergoes an internal audit, his firm should not be allowed to participate in that internal audit. Chair Higgs inquired if Mr. Ellis is comfortable those checks are there; with Mr. Ellis responding yes, if that is the Board’s understanding as well. Mr. Ellis stated what he is concerned about is a major assistance; every County Department has been touched by the hurricanes, and some rather heavily; and if Mr. Beck’s firm works on FEMA reimbursements for those Departments, then it should not do the internal audits.

Walter Pine of Titusville stated he wants to thank the Board for the speed at which this was brought before the Board; he did not know it was on the Agenda today; he is the one that brought this to the attention of the County; but there are some things that are yet undefined that he would like to look at or have the Board look at. He stated he understands the engagement letter and the issue about subsequent audits, but because there is a financial audit required by FEMA processes, at the end of that process, it can go back and invalidate anything that has been previously done; and it is a real mess with FEMA right now. He stated when the Board deals with bonds and things of that nature, internal audits and financial audits have to give it a clean rating; and the problem is where they dovetail all the various things together and get all the things mixed together, the auditor and their independence is important to all of it. He stated the question is at what time in the future will this firm be able to render a clean audit and FEMA not come back with its final financial audit, and sometime FEMA keeps the emergency situations open for five or ten years. Mr. Pine stated the Board needs to make sure that it is very careful and very clear in this because this could affect its risk assessment in the long term. He stated the question that was put before the Institute of Internal Auditors was not completely and properly phrased; the question that they have to look at is when the auditors act as liaison, point the paperwork to different offices, and essentially direct those offices, there is the appearance that they are actually assigning work; and in assigning work, they become part of the decision-making process. He stated whether that is intentional or not they need to be sure that it does not become the task at approval or task at assignment; so it has to be very careful here because later down the road they could suffer some very serous financial problems if the auditors independence is not carefully and completely maintained. He stated the engagement letter covers most of the issues that are under consideration; however, it is also important that in that engagement letter it also clearly lays out that the auditors may not direct, have no intention of directing, and do not decide or determine who performs any task. He stated that is very important issue so that they clearly delineate between who is assigning tasks and who is just asking; this is where it needs to be going; so for that purpose they need to at least put that kind of phrase in there to insure that independence is maintained.

County Manager Tom Jenkins advised for the public record, earlier there was discussion about the availability of purchase orders; all purchase orders are available on the third floor of this building as he previously stated; the Director of Central Services indicated he had no prior contact personally from Mr. Pine; so he does not know what the misunderstanding was.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to authorize Bray Beck & Koetter to assist in recovering FEMA reimbursements, with the condition it does not perform the internal audit of the FEMA reimbursements and other emergency service-related audits; and execute the Engagement Letter with the firm detailing the consulting services. Motion carried and ordered unanimously. (See page for Letter.)

MEMORANDUM OF AGREEMENT WITH CERTAIN COUNTIES AND CITIES, RE:
URBAN AREA SECURITY INITIATIVE, HOMELAND SECURITY GRANT AWARD

Motion by Commissioner Pritchard, seconded by Commissioner Higgs, to authorize the Chair to execute the Memorandum of Agreement with Orange, Seminole, Lake, and Osceola Counties, Cities of Maitland, Melbourne, Sanford, and Winter Park, and Greater Orlando Aviation Authority, for the Urban Area Security Initiative, Homeland Security grant; and assign implementation of the Agreement to the Sheriff’s Office. Motion carried and ordered unanimously. (See page for Agreement.)

ACKNOWLEDGE RECEIPT, RE: ST. JOHNS RIVER WATER MANAGEMENT
DISTRICT’S FY 2004-05 FINAL BUDGET

Commissioner Carlson stated the Board increased its funding for well capping then took it back because they could not cap enough wells to equate to that amount of money, which was disturbing because St. Johns River Water Management District is doing all those very strict conservation rules, yet they cannot go out there and do well capping. She stated the question is sovereign waters under land and whose property rights are they, and why can they not go out there and demand that they cap a well that is wasting water for the betterment of the entire system. She stated page 11 says, “water supply planning with local governments, $1.5 million to develop countywide and regional water supply plans, and develop integrated water models for water supply planning purposes. Water supply plans include the development of aquifer management and alternative water supply sources with the goal of assuring long-term availability of adequate high-quality water sources.” Commissioner Carlson stated that begs the question why they cannot go out there and cap the wells. She stated there is going to be a water conservation public awareness campaign; page 19 talks about 1.0 water resources planning and monitoring and discusses the inclusion of the development of aquifer management; and that has to do with capping wells.

Chair Higgs inquired what does Commissioner Carlson want to do; with Commissioner Carlson responding she wanted to point out that they are dealing with, but she did not see dollars in the District’s budget that identifies ways to get to that solution. Chair Higgs inquired if the Board wants to send its local representative a letter; with Commissioner Carlson responding it could do that and that would be good to have a letter from the Chair to address that issue. Chair Higgs inquired if the Board wants to direct staff to draft the letter for her signature expressing its concern about inadequate dollars for well capping. Commissioner Carlson stated it should also include access to well capping; and if there is a law or challenges that have been proven that they cannot go to a property owner that has a free-flowing well and cannot go in there and cap it because they said they got to stay off their property, the Board needs to find out about that. Chair Higgs inquired if the Board wants to send a letter to the local representative and the Executive Director; with Commissioner Carlson responding yes.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to acknowledge receipt of the St. Johns River Water Management District’s final budget for FY 2004-05, and direct staff to draft a letter for the Chair’s signature to the local representative and District Executive Director, expressing concerns about inadequate dollars for well capping and access to properties with free-flowing wells.

Commissioner Scarborough stated page 6 says, “begin implementation of the demineralization concentrate management plan.”; they are in early discussions on if, in fact, the lagoon can take a demineralization plant; and that is a desalinization plant in the area of the two power plants near Port St. John. He stated the language “implementation of the demineralization concentrate management plan” has not been a terminology used in any discussion; he has sat through a lot of discussions and is concerned when they shift definitions what the meaning is; and he would like that raised as a question as to what it means, and does it mean they are moving into a secondary plan. He stated there was an issue of methodology used; the methodology was going to be analyzed because there had been some methodology used in the Tampa Bay area; and there is a concern that the same methodology could be used in the closed system like the lagoon with a very shallow bottom. He stated the events in a tidal flow like Tampa Bay where the water is deeper could be substantially different than the impact on a closed lagoon system; so they need to be sure the modeling is correct. Commissioner Scarborough stated there are modeling things that are used for the lagoon to understand the nature of the lagoon in more of a large sense, from Sebastian all the way up to Daytona Beach; that model is probably not going to work for the model needed to understand the dynamics when they begin to create a concentrate and what the concentrate means when they have vacillations; and there are extreme vacillations from the wet season to the dry season and salinity. He stated the Board needs to be very careful because if it does not ask the right questions at an early time, the worst case scenario is that Brevard County buys into the plan and subsequently it is environmentally unsound. He stated it has been giving up the rights to the Florida aquifer that Cocoa now holds; it is stuck with a pig in a poke with no water; and it has to go immediately to sea water and create some other thing. He stated the Board will find that people of Brevard County will be subsidizing growth in Orange County and have to pay enormous amounts for water; and while he wants to work and be friendly, he has responsibility first to the people of Brevard County.

Chair Higgs stated when she went to the Water Summit, she returned with a drawing and said they are putting a desalinization plant in Brevard County; and they said no, they were not going to do that; but it is clearly in the planning stages. Commissioner Scarborough stated the Board needs to ask that question. Commissioner Pritchard stated it is in the planning stages. Chair Higgs stated the Board needs to closely monitor it; and it would be in the interest of the Board and citizens of Brevard County to direct the County Manager to have staff attend all those meetings where it is being discussed and to report back to the Board on what is going on. She stated it is a huge topic of tremendous impact to the lagoon; and the County has a water/sewer Ordinance that puts it in play in any kind of facility that is being developed. She asked Mr. Knox if she is right; with Mr. Knox responding they will find out in about five months when the First District Court of Appeal addresses that issue. Chair Higgs stated she still believes the County is in play and the Board needs to watch it very carefully because it will be a huge impact.

Commissioner Carlson stated the Board needs to know what is happening in its backyard; she chairs the St. Johns River Alliance, which is a group of 11 County Commissioners plus various agencies; and Kirby Green, Executive Director of St. Johns River Water Management District, sits on that board. She stated those are things they need to talk to the group about because it is a system-wide issue; and all the counties are going to be affected by it. Chair Higgs stated Brevard County will be affected by it, but there are multiple counties that have a different interest than Brevard County does. Commissioner Carlson stated the St. Johns Alliance is looking at those county interests that are outside the realm of influence; it encompasses Orange, Osceola, and several other counties; some of them do not sit on the board, but most of them do; and they need to bring it in front of that group, which is a nonprofit group. She stated there is a lot of interest there to make sure they preserve the rights of the river and those who live and work around it. Chair Higgs stated that is the St. Johns River, and the Board is talking about the Indian River. Commissioner Carlson stated she understands that, but the SWIM program impacts the Indian River; and there are other programs that are identified as SWIM programs that the St. Johns provides dollars for. She stated there is an involvement in regards to the Indian River and the connection to the St. Johns River, whether the Board likes it or not, because the issue the Board is talking about is in its budget. She stated an estimated 48 billion gallons of valuable ground water in Brevard County is saved by capping abandoned artesian wells; over the last 23 years, they have managed to cap 549 wells; but there is a huge number of outstanding wells out there that they could be capping if they could get on the properties of individuals that would allow them to go in and cap the wells for conservation purposes. She stated the Board needs to send a strong letter to the St. Johns River Water Management District and ask what can it do about it or is there a case law that says they cannot do anything.

Chair Higgs stated the Board was talking about a letter to Henry Dean and Bill Kerr in regard to the issues; and inquired if Commissioner Scarborough wants a separate letter; with Commissioner Scarborough responding it can be included in one letter. Chair Higgs inquired if Commissioner Scarborough wants to include in the motion that the County Manager direct appropriate staff to regularly report back to the Board and attend the key meetings; with Commissioner Scarborough responding that would be good. Mr. Jenkins requested clarification of the motion; with Chair Higgs responding it is about the desalinization, demineralization effort by the St. Johns River Water Management District using the Indian River and other Brevard County surface water bodies as sources for drinking water. Commissioner Carlson inquired if the County has a Water Supply Board; with Commissioner Pritchard responding yes, and Commissioner Scarborough was appointed to it. Commissioner Scarborough stated that is where he has picked up some of the concerns. Commissioner Carlson stated perhaps Commissioner Scarborough could be the lead on that. Commissioner Scarborough stated Commissioner Carlson mentioned the group she is with; there is the St. Johns River Water Management District; the Board’s concerns need to be articulated in a broader audience because they are legitimate; and the more people who know about it, helps the Board if it runs into a problem. Commissioner Carlson stated they can obviously send the letter to those folks, and she can bring it up at the next Alliance meeting to get some input.

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

Maureen Rupe of Port St. John stated she is on the committee for the St. Johns River Water Management District that is looking at the validity of the salinity model to make sure there is no negative impact to the Indian River Lagoon; and she has concerns about what is said in the St. Johns River Water Management District budget about implementation of that management plan for desalination.

Commissioner Carlson inquired if that is a committee the District appointed; with Ms. Rupe responding yes, and they meet very regularly and keep up to date on everything. Commissioner Carlson inquired how long have they been meeting; with Ms. Rupe responding about two months and maybe longer. Commissioner Carlson inquired if the committee has a name; with Ms. Rupe responding it does but she forgot it. Chair Higgs stated those who are going to those meetings need to keep the Board of County Commissioners and community advised of what is being suggested and discussed.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Maureen Rupe of Port St. John advised she had a personal experience that does not relate all together with the issue, but there are some points she wants to make about her eldest grandchild. Commissioner Scarborough inquired which bill is Ms. Rupe addressing; and inquired if it is the wedding reception issue. Ms. Rupe read, “At approximately 1:00 p.m. on Friday October 8th, the Parks and Recreation Department became aware that the Veterans Park Memorial Center on Merritt Island should be closed on an emergency basis due to structural damage discovered in an inspection”; and inquired why, when it had been two weeks since the hurricane, was it being inspected for damage when people had used it for two weeks, and was their safety in jeopardy at that time. She continued to read, “The Veterans Center had already set up and decorated for a wedding reception scheduled for Saturday the 9th. As a result of the emergency closing, the Department was forced to relocate the wedding reception to another location. It was determined no other County facility was available.” She stated when her granddaughter’s wedding was canceled for the hurricane, she was offered a library; and inquired why were those people not offered the library. She read, “After numerous calls, staff was able to move the wedding to the Space Coast Convention Center. The Department believes it was fair and appropriate to pay for the relocation due to the last minute cancellation and the exposure of the bride’s family to conditions discovered by an engineer.”; and stated the cost has gone from less than $200 for the Veterans Center to $1,800 for the Space Coast Convention Center. Ms. Rupe stated the deposit for the rent in the amount of $500 was paid by Visa, she assumes by the County; the remaining balance in the amount of $3,190 is to be paid by check; since the Veterans’ Center does not have a liquor license, they allow renters to provide their own alcoholic beverages to their guests; however, the Space Coast Convention Center has a liquor license and does not allow renters to provide alcoholic beverages for their guests; therefore, in order to move the event without causing the renters undue financial hardship, the rental cost includes a bar fee for the event. She stated it was a $1,200 bar fee; and inquired since the renters were going to have to buy their own liquor and take it to the Veterans’ Center, why are the taxpayers picking up the $1,200 bar fee. She stated the obligation to do this is going a bit far when it goes from $200 to $1,800; and stated on the bottom it says, “The Department requests an emergency check in the amount of $3,190 to be issued to the Space Coast Convention Center. When the check is ready to be picked up, we will hand-deliver it.” She stated if the County is going to set a precedent of emergency closures paying compensations like that, then it has to do the same for everybody; and her biggest question is why had it been two weeks since the last hurricane and all of a sudden they discover the structure was not safe.

Clerk of Courts Scott Ellis stated there are two items of concern in the bill folder; the first is the bar tab of $1,200 for the liquor and bartender, which Finance did not find appropriate; and the other is a trip for TDC to Washington, D.C. for a meeting on per diem rates with the federal government employees traveling for business. He stated employees who travel for business do not travel per diem for tourism or vacation; so it does not seem appropriate for TDC to go to Washington and spend $3,000 for a three-hour meeting to debate per diem rates with the federal government.

Chair Higgs stated the per diem change has significant impact on Brevard County for people who are coming here, but she does not know the dollar amount. Assistant County Manager Stockton Whitten stated it was $105 and was reduced to $83. Chair Higgs stated there is a significant number of people traveling to Brevard County who pay the federal per diem rate; Orlando had the same issue; she does not know what it did to reduce it; but she does see significant impact to Brevard County.

Mr. Ellis inquired how many people were at the meeting; and Chair Higgs inquired how many people went. Mr. Ellis stated Bonnie King. Commissioner Carlson stated there is a letter from Tourist Development Director Rob Varley that says, “although they estimate expenses to be around $630, we are hoping to get a good rate on lodging; and Bonnie has an unused ticket for a show she was not able to attend”; so she does not know where the $3,000 came from. Mr. Whitten stated the cost for the TDO item is $630.65; that expenditure was an attempt to save $100,000 for the County and TDO budget; they estimated the cost to the hotel industry was over $3 million; so it was an attempt to persuade the federal government to keep the rate where it is and not reduce it because it has a significant impact on the County budget and hotel revenues.

Commissioner Pritchard inquired when Mr. Whitten said the cost is $3 million to Brevard County, did he mean from the reduction of per diem from $105 to $83; with Mr. Whitten responding yes because professional organizations and federal government travel to the County to have meetings and conferences and are paying the per diem rate, which was reduced from $105 to $83. County Manager Tom Jenkins noted he thinks Orlando, as well as Orange County and another County were able to get their raises back up. Chair Higgs stated other counties were impacted similarly and took similar action to protest the arrangements.

Commissioner Scarborough stated the thing that bothers him is when they say the tourist tax was something the people of Brevard County voted on; and it was within certain limited parameters. He stated now when someone travels for non-tourist reason, because they have to come here on business, certainly it accrues to the benefit of the hoteliers; and inquired is it accruing to the hoteliers or the purpose of the trip that defines whether it is in the purview of tourism for the purposes of the vote that the people took. Mr. Jenkins stated a significant portion of the tourist tax goes to fund the cultural arts, zoo, beach renourishment, etc.; if they are charging $100 a night, they get 7% more; so it benefits the community and is a public purpose. Commissioner Scarborough inquired if they define tourism by the industry or by the reason for the traveler to travel. Chair Higgs stated they are business travelers. Commissioner Scarborough inquired if that should be addressed throughout the issue.

Mr. Ellis inquired if Bonnie King represents TDC or the hoteliers; if the hoteliers are going to lose, why did they not send people to Washington to the meeting; and why did the TDC send someone up there on TDC money. He stated he would think the big hotels that are taking the financial hit would have sent people because they have a financial interest in it. Chair Higgs inquired following that reasoning, why would TDC market the hotels; and stated it is in the same category of marketing and revenue. Mr. Ellis stated it is not to bring people into Brevard County, it is to charge them more when they are here. He stated if he owned a shop and sold hot dogs or tee shirts, it would not matter to him what the government reimburses for per diem because it would not come out of his pocket.

Commissioner Pritchard stated the reduction in per diem would reduce the amount of tourist tax that the County would generate, a minimum of $1.40 if based on 7% of $20.00; it is the “feets in sheets” and “heads in beds” argument; and somebody who comes to a hotel, whether tourist or here on business, is still in the hotel, and that is the important consideration. Mr. Ellis stated the per diem rate does not affect the number of people coming to Brevard County; it only affects what the government reimburses for the hotel room; and it does not affect what they spend any where else in the local economy. Chair Higgs stated their per diem is the amount of money they have for the trip per day.

Commissioner Scarborough stated occupancy is one thing, which can be used to judge the health of the tourist industry, but they also run numbers on how much the rates are; and if they are able to increase their rates, that is an indication the tourist industry is doing well. He stated if they have to reduce their rates to keep their occupancy up, that is an indication of a problem; but he does not know if the rate issue is driving his thought.

Mr. Knox stated there are specified uses the Board can put the money it realizes from the tourist tax to; and that activity might fit in one of those activities, but it is not real clear. Commissioner Scarborough inquired if Mr. Knox sees any reason why it would definitely not fit; with Mr. Knox responding no.

Commissioner Scarborough stated if someone has a restaurant that is not doing well, they run specials; if they have a store, they can sell clothes cheaper to keep up their volume because volume and price are both factors of business; and to look at it in any other way and be able to, without adversely affecting occupancy, increase revenues, it appears to be part of the bigger picture. He stated if there is not a problem with the definition being a business travel, it goes to the overall health of the industry; and he will move that portion of it.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve the portion of the bill folder on travel for Bonnie King to Washington, D.C.

Mr. Ellis stated it would be healthier if TDC lobbied McDonald’s to jack up the price of a Big Mac and Coke and stick it to everyone. He stated TDC is there to bring tourists in, not to generate revenue for the hotels. Commissioner Scarborough stated it is a natural effect of a healthy market that a room rate goes up as well as occupancy; and one does not happen to the isolation of the other. Mr. Ellis stated he understands that, but if he was a hotel owner, it would be his business to keep the rates up, not the County’s business.

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

Commissioner Scarborough stated there is something strange about the County paying for an alcohol tab; he is even stretching it from an obligation of $200 to finding a facility that is a different degree of facility; but maybe there is an answer.

Parks and Recreation Director Charles Nelson advised Ms. Rupe asked a good question of why did it take two weeks to look at the damage; and the reality is that what they were chasing was water damage they believed was from the roof. He stated when the engineer started doing the inspection, they pulled the siding off the building and found out that due to a design problem over the years the 2x6's that were holding up the wall had rotted; it was not visible or storm damage; it was caused by the water damage they discovered; and there was no rush to find out where the water was coming from initially because it was water and they had a lot of water damage throughout the system. He stated what they discovered in the inspection was much more severe than that; it is different from a lot of other things; and this is the first time in his 30 –plus years of being Parks and Recreation Director he ever had a circumstance where a building was closed due to a structural issue, so there are no rules for them. Mr. Nelson stated by the time they got involved with it, the place was set up and had a wedding party imminently following; the family had already been in there and was exposed to the danger of the structure that staff was not aware of until 1:00 p.m. that day; so they felt compelled to work through the issue with them; and being around brides and their mothers can be a challenging circumstance. He stated they were great to work with, but staff obviously had a circumstance it felt it needed to work out; staff called around to all the facilities and did not know he had to call Mr. Jenkins to get a library; but they did not pick libraries and looked at park facilities to see if there was anything available. He stated when there was nothing available, staff began to look all around to see if there were other sites available; and the difficulty arose when, after contacting the Holiday Inn Express and securing the room; they found that the alcohol license does not allow them to bring in alcohol, so they were faced with the family coming up with an additional $1,500 at the 11th hour in this circumstance. He stated staff agreed to it, given the circumstances; it felt it was appropriate, but there is always an underlying factor that it was concerned with in that the family was exposed to a significant amount of liability related to the structure; and staff felt if it was not to treat them appropriately, the County could find itself in a difficult situation. He stated staff felt this would be a way to satisfy the commitment and they would get the building fixed and not face potential litigation related to the cancellation and the cost they incurred associated with the commitments they had made. He stated the caterer had already set up and had to reset up; there were a variety of issues; so in the end staff felt that it was facing at least that amount of money in terms of a family’s expenses, which would have come back before the Board. He stated in 30 years if they get another one, they would not do it; but it was unusual and they felt it was an appropriate way to address it. He stated it has never happened before; and he does not think it will happen again.

Commissioner Pritchard stated it says beverages $8 per person; and inquired if that is eight beverages; with Mr. Nelson responding that was the flat fee; they did talk to the Holiday Inn Express to see if they would work with the County in terms of those issues; they were willing to reduce some of the employee’s fees, the $75.00 fee; but beyond that they felt they needed to charge. Commissioner Pritchard inquired if the rental the family paid for the Veterans Center include additional fees to bring in alcohol, or do they just have to have a liability insurance policy; with Mr. Nelson responding a liability policy, and it was more than $200 that was quoted, but not up to $1,200.

Commissioner Scarborough stated the idea of the Board authorizing a liquor bill for a private party does not breed well at all; and he does not care what the circumstances are, a liquor bill paid by the people of Brevard County is just not right. Mr. Nelson stated the possible solution for that is they can attempt to get that back from the family; the dilemma they are faced with is the Holiday Inn Express, based on County staff in person making commitments did something; and that if they do not pay the bill, he is sure there will be some recourse on the part of the Holiday Inn Express. Commissioner Scarborough inquired if the County’s obligation is not to the family but to the facility.

Motion by Commissioner Pritchard, to approve the bill for a wedding reception. Motion died for lack of a second.

Commissioner Pritchard stated the Board has an obligation to the Holiday Inn Express; and inquired what is it going to do about it. Mr. Ellis suggested since the wedding has already taken place, the best thing to do is pay the Holiday Inn and send the bill for the liquor to the bride and groom. Commissioner Scarborough stated he likes that suggestion, and the check should be made to the bride and Holiday Inn jointly. Mr. Ellis stated he understands the bill has been sent to the County so there is no need to send the check to the bride because the debt is strictly with the Holiday Inn. Commissioner Scarborough stated then he does not have the ability to make a motion that recognizes the County’s responsibility to the bride and all the Board would be doing is paying the liquor bill. Mr. Ellis stated the Board has to pay the Holiday Inn; there is no way around that now; the goods have already been received and drank; and the only thing it can do is bill the bride and groom for the alcohol portion. He stated they may not pay, because his office bills people all the time that do not pay; but the gist is the Board should send the bill for alcohol to the family. Mr. Jenkins noted he agrees with Mr. Ellis.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to send the bill for the liquor and bartender to the bride. Motion carried and ordered; Commissioner Colon voted nay.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve the bills and budget changes. Motion carried and ordered unanimously. (See pages
for List of Bills and Budget Change Requests.)

PUBLIC COMMENTS, RE: VARIOUS ISSUES

Walter Pine of Titusville stated it is ridiculous to accuse the County of cover-up to get public records; and County Manager Tom Jenkins said on the record the records are upstairs, which was tantamount to a lie. He stated he spoke to three members of staff, including Carlos and asked for the records; and because he did not speak to the director does not mean he did not ask for the records nor should the Board imply that he did not. He stated the records were asked for; they were not made available; it is that simple; and inquired if he needs to carry a video camera into every office every time he talks to a clerk to prove that he actually asked for something. He stated if that is the case, the Board should tell him now and he will start doing it. He stated he does not know about the Commissioners, but the bride thing is weird; he agrees with its decision, but there is a problem; the County clearly had a duty to inspect that building before anybody occupied it; and question is are there vested rights. He stated it is clearly a duty, especially after the hurricane. Mr. Pine stated it is important to be careful about comp time on hurricane issues because the County can least afford to have key personnel out of the office during a recovery; and the Board needs to really consider the issue of hourly wages because recovery is a very important time. He stated he appreciates the conscientiousness of staff who worked it, but they can only do so much; so the Board needs to make sure that during storms and events that people who are needed during the recovery are not worked to death so they cannot be there; and that is an issue that needs to be covered. He stated one thing that was not brought up in regards to those positions and all the overtime is where were those people and where is the record that shows they worked. He stated according to Mr. Abbate they signed their time cards; in a situation where salaried people were going out to different places, they should have had one other person validate that they were actually at the site; it is not to say they would do anything wrong; but by doing that, the Board protects everybody and prevents those who would do wrong by having the other person to fall back on. He stated if two people validate it, it is best for everybody; so he asks the Board to do that. He stated another thing he would like to ask is where did the Board get the definition or the purpose for an occupational license because the purpose he was taught and had learned is that an occupational professional license is to protect the public from incompetent people practicing a profession. A person in the audience requested a copy of the definition. Chair Higgs requested Mr. Jenkins see that the person gets a copy of the definition from Mr. Pine. Mr. Jenkins stated other than the Florida Statutes, he does not think there is a definition. Chair Higgs stated Mr. Pine asked for the definition, and Mr. Enos gave it to him, so that would be appropriate also.

PUBLIC COMMENTS, RE: ROOFING PERMITS

Brian Fisher, General Contractor of American Building Contractors, advised they are the largest residential roofing company in the country; they specialize in insurance restoration work; they have offices in areas that traditionally get hit by gales and winds; and they have a problem. He stated they have been doing a lot of work in Brevard County; he is a certified general contractor in the State of Florida; under the order from Governor Bush in certain counties, it was waived; there was a leniency period of 90 days, which allowed him, as a general contractor, to pull roofing permits and do roofing work; and they have been doing that. He stated their jobs have been inspected; they do good work; that expires Sunday, which means the last time he can pull permits in Brevard County would be Friday; and he has about $65,000 worth of work that they are doing. He stated he estimates that is about 20,000 homeowners’ deposit checks that they are holding for about $150,000; they have materials ordered; and suggested granting the Building Department some leniency. He stated he has every type of credential except the Florida roofing license; and that has been pending for two and a half to three months.

Chair Higgs inquired if Mr. Fisher is a general contractor but not a licensed roofing contractor; with Mr. Fisher responding he is a licensed roofing contractor in several other states, a general contractor in Florida, and holds 31 State licenses.

Interim Assistant County Manager Ed Washburn stated he thought the 90 days was the State’s rule and not the County's rule; with Mr. Fisher responding the State rule as he reads it did not apply the leniency to Brevard County; Polk, Osceola, and Orange Counties were listed, but Brevard County was not; and he does not know if Brevard County has been waiving it. He stated it is the logical thing to do; they have crews here; and they are probably one of the only contractors around that can get materials these days. Mr. Jenkins stated the Contractors Licensing Board did waive it in Brevard County for a period of time; and staff can check as to whether or not it can extend it. Mr. Washburn advised the Board waived it for out-of-State contractors; Mr. Fisher is a Florida contractor; and staff needs to check on whether or not the State is going to do anything about extending the 90 days. Mr. Jenkins noted staff needs to also check to see if they need State authority to do it and verify that.

Mr. Fisher stated that is the only thing he wanted to bring to the Board’s attention; he has a roofing license pending; he passed the 4.5 hour test with an 81; the CGC license he holds is good for the residents because they have to jump through a lot of hoops as contractors; and there are bonding, insurance, workman’s compensation, and other issues. Chair Higgs stated the Board does not question Mr. Fisher’s competence, the question is how to resolve the issue.

Commissioner Scarborough stated Brevard County needs roofing contractors who are good; if he is good, the last thing the Board wants to do is create a methodology that is not going to get roofs fixed in Brevard County; and inquired what does the Board need to do with anything or does staff have it under control to make it happen. Mr. Washburn stated they need to find out from the State if the 90-day time frame is going to be extended and what can they do about it. Chair Higgs stated the County cannot do anything because it is a State issue. Mr. Washburn noted they will know tomorrow. Mr. Fisher inquired if there is someone he can contact; with Chair Higgs responding Mr. Fisher can contact Mr. Washburn.

WARRANT LISTS

Upon motion and vote, the meeting adjourned at 6:21 p.m.

ATTEST: _________________________________
NANCY HIGGS, CHAIR
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
_____________________
SCOTT ELLIS, CLERK

(S E A L)