The Board of County Commissioners of Brevard County, Florida, met in regular session on February 18, 1997, at 5:37 p.m., in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Melbourne, Florida. Present were: Chairman Randy O'Brien, Commissioners Truman Scarborough, Nancy Higgs, Mark Cook, and Helen Voltz, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Assistant Pastor Paul Evans, Zion Christian Church, Palm Bay, Florida.

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

REPORT, RE: LETTER FROM CURT LORENC

Commissioner Voltz advised Curt Lorenc wrote a letter to Public Works Director Henry Minneboo demanding information and answers to many questions within one week. She suggested such letters come to Commissioners instead of burdening staff with answering constituents, as it is not fair to staff for people to demand information.

Commissioner Higgs advised a lot of people ask staff for information daily, and to develop a policy saying staff cannot respond would be impossible to fulfill. She stated she would not support putting the Board between the constituency and staff; and it is difficult to restrict people from requesting information and services from the County.

Discussion ensued on how to deal with information requests or demands from the public.

The Board took no official action to restrict information requests, but suggested the County Manager be informed to contact those persons if the requests are unreasonable.

RESOLUTION, RE: SUPPORTING SPECIALTY LICENSE TAGS FOR ADOPTIONS

Commissioner Voltz advised of a letter requesting a resolution supporting specialty license plates for adoption, and the Resolution from Marion County which was used to prepare a similar resolution for Brevard County. She presented copies of the resolution to the Commissioners.

Chairman O'Brien recommended the resolution be placed on the agenda for the next meeting. Commissioner Voltz stated it was due yesterday, and she called to ask if the Board could do it

tonight and fax it to them tomorrow. Chairman O'Brien again recommended it be put on the agenda.

ACKNOWLEDGE RECEIPT, RE: REVENUE MONITORING REPORT FOR QUARTER ENDING DECEMBER 31, 1996

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to acknowledge receipt of Revenue Monitoring Report for quarter ending December 31, 1996, as prepared by the Finance Department. Motion carried and ordered unanimously.

APPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to appoint Steve Kappeler, Holiday Inn Melbourne Beach Oceanfront, 2605 N. Highway A1A, Indialantic, 32903, to replace Loni Ellis on the Economic Development Commission of East Central Florida, with term expiring December 31, 1997; and Josh Ross, 3150 Rebel Lane, Malabar 32950, to replace Sam Senne on the Palm Bay Regional Park Citizens Advisory Committee, with term expiring December 31, 1997. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET TRANSFERS

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve bills and budget transfers as submitted. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: REQUEST FROM BARBARA MEJIAS FOR VARIANCE TO BREVARD COUNTY COASTAL SETBACK LINE

Chairman O'Brien called for the public hearing to consider a request from Barbara Mejias for a variance to the Brevard County Coastal Setback Line.

Motion by Commissioner Cook, seconded by Commissioner Voltz, to continue the public hearing on the request from Barbara Mejias for a variance to the Brevard County Coastal Setback Line until March 4, 1997. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC HEARINGS, RE: ORDINANCES AMENDING LANDSCAPE AND LAND CLEARING REGULATIONS

Motion by Commissioner Cook, seconded by Commissioner Voltz, to table the request for permission to advertise public hearings to consider ordinances amending the landscaping and land clearing regulations until February 25, 1997. Motion carried and ordered unanimously.

PERSONAL APPEARANCE - BRAD SINCLAIR, RE: RESIDENTIAL FENCE HEIGHT

Brad Sinclair advised staff returned with recommendations: (1) leave it as is, (2) add the change, or (3) delete the four-foot limit. He presented and explained a video of other fences of six feet and more in the County; and stated there were only five requests for variances on fence height. He mentioned complaints, dispute with neighbor on property line, and filing of a civil suit; and described his neighbor as a commercial fisherman, and the activities in the neighborhood which forced him to put up a six-foot fence. He expressed concern for his family's safety because of drug dealing, prostitution, murder, and homeless people in the area; and stated there is no justification for not being able to see while pulling out of driveways because his fence is six feet off the roadway, and by the time a neighbor pulls out on the road he or she is pass the fence. Mr. Sinclair suggested an administrative remedy so he can get approval for the fence.

Commissioner Voltz advised she reviewed the fence, and there is no problem with the fence and brick wall. She stated the Code was for aesthetics, now it is for safety, and she will support a change to amend the Code to provide administrative waiver with criteria.

Commissioner Cook advised there was conflicting information and no interest on the Board to increase the front fence height; several years ago Mr. Sinclair applied to the Board of Adjustment and was denied; the members have changed, so it is a different board; and if there is no support to change the Code, the other alternative would be the Board of Adjustment. Mr. Sinclair stated he was told he could not apply for the same thing. Zoning Official Rick Enos advised the Code says a person cannot request the same variance again, but Mr. Sinclair could request something different such as a 5'10"-fence. Mr. Sinclair stated it was expensive and time consuming.

Commissioner Voltz advised the fence is already up; there were only six requests in the last few years; and recommended the Board amend the Code to provide for administrative waiver. Commissioner Cook stated if staff says it is reasonable and the neighbors are not aware that it was granted, they may oppose having a six-foot fence. Commissioner Voltz recommended all requests come to the Board; with Commissioner Cook responding that is an option.

Commissioner Cook inquired if there is Code Enforcement action; with Mr. Sinclair responding yes. Commissioner Cook suggested waiving the fee for Mr. Sinclair to go to the Board of Adjustment as it is the proper forum rather than changing the Code, and hold in abeyance Code Enforcement action. Mr. Sinclair stated Mr. Knox said the Board of Adjustment is not designed for that, and it is better to change the Code, but it granted three requests, two in 1956 and one in 1938.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to waive fee for Brad Sinclair to apply to the Board of Adjustment for a variance on the front fence height, and hold in abeyance Code Enforcement action to determine if the problem can be addressed in this manner.

Commissioner Scarborough stated it would be nice to give it to staff, but if the Board does not put in guidelines, it puts a burden on staff. Commissioner Higgs stated it is a dangerous precedence to waive the fee with no special circumstances, so although it is the proper forum for his problem, she does not support waiving the fee.

Commissioner Voltz inquired if Mr. Sinclair will be able to apply to the Board of Adjustment; with Mr. Enos responding yes if he requests a different variance. County Attorney Scott Knox advised if he can show a change in circumstances, he could re-apply.

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

STAFF DIRECTION, RE: BICYCLE HELMET LAW

Larry Fallon, John Devlin, and Martin Lamb addressed the Board in opposition to adoption of an ordinance enacting a bicycle helmet law or partial exemption, stating it will benefit manufacturers, intrude on parental responsibility, create problems between parents and children, promote government intervention, increase cost for law enforcement, and assign children who are cited for not wearing helmets to community service. They recommended education of riders and drivers rather than requiring helmets; and requested the Board opt out of the State law.

Commissioners Cook, Voltz, and O'Brien agreed every bicyclist should wear helmets and education is the key, but disagreed with government intervention. They noted municipalities that opted out of the State law, and statistics on head injuries; and indicated it could make children criminals.

Commissioner Scarborough stated it relates to health and safety of young people and goes beyond freedom of choice. Commissioner Higgs stated it is a good law that protects children, and suggested passing it for children 13 years of age and younger.

Motion by Commissioner Cook, seconded by Commissioner Voltz, to direct the County Attorney to advertise an ordinance to opt out completely from the State law on bicycle helmets. Motion carried and ordered; Commissioners Scarborough and Higgs voted nay.

The meeting recessed at 6:55 p.m. and reconvened at 7:10 p.m.

ASSIGNMENT OF AGREEMENT, RE: LOGAN VENTURES dba MASH HOAGIES

County Manager Tom Jenkins recommended the item be withdrawn as there are no provisions relating to selling of stocks.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to acknowledge receipt of the County Attorney's report that approval from the County to sell stocks is not required. Motion carried and ordered unanimously.

Commissioner Cook recommended the Board consider provisions for other contracts with small corporations that will make continuation of the contracts contingent upon the same parties performing the operation, and the County having the option to terminate the contract if there is a change in the principals.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to direct that future contracts include a statement that continuation of the contract is contingent on continued management by the named parties, and the County can terminate the contract, at its discretion, if there is a change in the principal(s) of the corporation. Motion carried and ordered unanimously.

AUTHORIZATION TO USE ADDITIVE BID ALTERNATES, RE: CONSTRUCTION OF ADDITIONS AND RENOVATIONS TO SOUTH MAINLAND (MICCO) LIBRARY

Commissioner Cook inquired if additives come up when there are surplus funds; with Assistant County Manager Joan Madden responding if they have a favorable bid, things can be added. Commissioner Cook inquired if the funds can only be spent for Micco Library; with Ms. Madden responding yes. Commissioner Cook inquired what is the purpose for additives; with Commissioner Higgs responding in the flat bid, things are left off that are not absolutely necessary such as carpet, entrance canopy, etc.; and if the bid is favorable and funds are left over, they can add those items. Ms. Madden advised the bid will be for carpeting the new portion of the library, but if they get an additive bid, they may be able to do the entire library and make the carpet consistent.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to authorize the use of additive bid alternates for construction of additions and renovations to South Mainland (Micco) Library.

Chairman O'Brien inquired if staff received a grant; with Ms. Madden responding no, it is for new construction, and renovations have a low priority with the State. Chairman O'Brien stated he was told by the State that only one library got a grant; and it may be in the best interest to apply for grants for renovations; with Ms. Madden responding they could and have one for Stone Library; and the State approved grants for new libraries in Cocoa Beach, Eau Gallie, and another location, but the time has passed to apply for Micco Library. Discussion ensued on applying for grants to renovate libraries and construct new libraries.

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

STAFF DIRECTION, RE: INTERPRETATION OF LAND USE POLICY 2.7.F.2 AND CONSERVATION POLICY 5.2.F.2 OF THE COMPREHENSIVE PLAN

Howard Wolf advised he sent a memo to the Board explaining his thoughts; he tried unsuccessfully to dissuade it from going forward with Amendment 95B; and the Board reaffirmed its commitment to preserve natural functioning wetlands. He stated Chapter 163, Florida Statutes, directs construction away from wetlands; 163.B161(9) states, "full and just compensation must be provided any property owner"; but it must be determined in judicial action and not in Comprehensive Plan amendment; so Option 2 is recommended until 95B is resolved or the EAR process is completed.

Attorney Leonard Spielvogel advised there is a legal interpretation of "shall" and "should" by the County Attorney which he supports; and his position is the Board should have flexibility to make decisions whether to grant or not grant petitions. He stated if Option 1 is adopted, the interest of the public and environment will be protected; and Natural Resources Management should determine whether it is isolated wetland, remote and non-controversial, then the County would be using its resources correctly.

Mary Todd advised the County Attorney's opinion is consistent with the Comprehensive Plan; commercial and industrial can be allowed if five criteria are met; staff would make judgment on four of the five criteria; and if they are satisfied, the Board would decide whether it is in the public interest. She stated staff is not recommending commercial/industrial in wetlands; isolated, self-contained, or small in size are irrelevant to the determination; and to consider size of the wetland will require a Comprehensive Plan change. She stated they would prefer to have the item under New Business and not Consent on the Agenda.

The Board discussed overriding public interest to be determined by the Board, staff providing analyses of requests and not recommendations, requests coming to the Board on a case-by-case basis, allowing commercial and industrial development in wetlands only when they meet the criteria of the Comprehensive Plan, meanings of "should" and "shall," Options 1 and 2, and applicant's choice.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to approve Substantive Option 1, interpret Section 62-3695(b) and Comprehensive Plan Policies 5.2.F.2 and 2.7.F.2 to allow commercial and industrial land uses within wetlands where 4 of the 5 Comprehensive Plan criteria in those policies are met; approve Procedural Option 1, to allow staff to evaluate criteria, make analyses and professional assessment, give the Board background information, and place approved applications on the Agenda under New Business for the Board to determine overriding public interest and approval or denial of applications; and allow applications denied by staff to be appealed to the Board in accordance with Comprehensive Plan procedures.

Commissioner Cook stated that means staff will make recommendations on whether or not an applicant has a special reason or need to locate within wetlands, no feasible alternative location, will result in minimal feasible alteration, and do not impair the functionality of the wetland; and recommended keeping the current procedure. County Manager Tom Jenkins advised previously everything that had wetlands was denied by staff.

Discussion continued on staff evaluating criteria except overriding public interest and giving the Board information, putting it under New Business and not Consent, provision for applicants to appeal, Options 1 and 2, Board's prerogative to disagree with staff, and professional assessment of issues.

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

DETERMINATION OF PUBLIC INTEREST, RE: A & G EXHAUST WAREHOUSE

Gene Eary, Engineer for A & G Exhaust, George Hatch, owner of A & G Exhaust, Martin Lamb, and B. B. Nelson addressed the Board in support of the application to determine public interest for A & G Exhaust's Warehouse, advising that the wetland area is .12 acre of 1.35 acres; the activity has no feasible alternative location; the area is dry 9 to 11 months of the year; there will be minimum alteration because the wetland will become part of the retention area; the wetland is located in the center of the property, and there is no way to work around it; they will provide nine times the amount of storage as the small wetland previously provided; the activity does not impair the functionality of the wetland because in its present condition it provides a minimal habitat for wildlife; and there will be no net loss of functional wetlands. They advised the request should be determined as being in the public interest because the company will hire people who would not have the opportunity of employment somewhere else, as well as students on work programs; and it will add to the tax base of the County.

Commissioner O'Brien inquired how it can be minimal alteration; with Debbie Coles responding it is not a large wetland; and the Water Management District says it is a jurisdictional wetland under the threshold of one acre so it does not need mitigation; however Mr. Hatch agreed to make a monetary donation to the Mosquito Control Department for acquisition and management of .24 acre of wetland.

Commissioner Voltz advised the whole area is dead; the water is gone and the plants are dying; so whether it was a wetland or a drainage problem, she is not sure. Commissioner Cook stated it is industrial property, and will have nominal impact; and the Water Management District will permit it.

Motion by Commissioner Cook, seconded by Commissioner Voltz, to determine that the application of A & G Exhaust for a warehouse meets the overriding public interest criteria as required by Comprehensive Plan Conservation Element, Wetland Policy 5.2.F.2, and Brevard County Code, Section 52-3695.

Commissioner Higgs advised the Policies state unless the project has a need to locate in wetlands; and read the criteria. She stated it is not consistent with the law, so she cannot support it.

Chairman O'Brien called for a vote on the motion. Motion carried and ordered; Commissioner Higgs voted nay. The meeting recessed at 8:31 p.m. and reconvened at 8:44 p.m.

PERSONAL APPEARANCE - SHERRIDAN GREGORY, RE: EXEMPTION FROM REGULATIONS FOR STATE LICENSED BUILDING CONTRACTORS

Chairman O'Brien advised Sherridan Gregory is requesting State licensed building contractors not be exempt from County regulations; however, the Board needs to be careful of what it says because it involves litigation.

Sherridan Gregory advised the exemption status of State licensed contractors is not fair to people who live in the County, believe their rights are being protected by the County, and are not aware that some contractors are exempt from policing and regulation by the County. She stated in 1982, the County exempted State contractors from regulation regarding misconduct or violation of any laws, with exception of Code compliance; and an article in Florida TODAY Magazine listed Departments and Agencies of the State and County available to consumers regarding contractors and contractors licensing; however, it neglected to mention that certain contractors are exempt from County regulations. She noted many consumers are given the list and diligently try to follow it only to be referred from department to department until they become frustrated and give up; consequently those State licensed contractors who commit misconduct or violate local ordinances continue to do it over and over again. Ms. Gregory advised it would be in the best interest of all consumers and citizens of Brevard County if there were more stringent regulations over contractors who obtain permits from local authorities, so they would not be so frustrated or spend half their lives trying to do the job that the County is supposed to do to protect them. She stated if the Board rescinds the Ordinance, the consumers will be protected, and the contractors would not be more affected with the County regulating them than they are with the State. She noted many consumers do not have the time or ability to spend years with various State agencies following up on policing and regulating contractors; they need the Board's help; and requested the Board rescind the exemption status and put regulation of contractors back with the local jurisdiction where they obtain their permits.

Commissioner Higgs stated the Board can do something to improve what a number of people have experienced regarding some State licensed contractors; people have been told there is not much the County can do to help them; but the Board has the ability, under the law, to assist some people who encountered willful violation of the law and potential fraud.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to direct the County Attorney to provide the Board with appropriate language to allow covering State contractors under the County Licensing Board.

Commissioner Cook stated he cannot support the motion; it is the State's job and a State investigator is looking into it; it is to be heard by the State Contractors Licensing Board that certifies State contractors; and the County Licensing Board voted unanimously not to recommend the Code be amended to allow the County to take over State action. He stated the consensus of the Licensing Board was that a State investigator should be able to investigate a complaint about a State certified contractor and submit the results to the State Construction Industry Licensing Board in the same time frame that it would take the County to investigate the same complaint and take it before the local licensing board; so all the Board would be doing is taking over a State function when it has a hard time funding its legitimate functions. He stated the State should be compelled to do its job, and if not, the appropriate State agency should take action.

John Smith advised he put it on the Agenda for the Contractors Licensing Board; and the reason that Board had a problem is because the Florida Statutes say "willful building code violation." He advised Section 489.113, Part II, Subparagraph 4(b) states, "Local construction regulation board may deny the issuance of building permits to a certified contractor or issue a permit with specific conditions if the local construction regulation board has found such contractor, through the public hearing process, to be guilty of fraud or a willful building code violation"; and willful building code violation complaint can only come from a building official or his representative. He stated if an inspector finds a code violation on the job and notifies the contractor that a violation exists; and if the contractor does not correct it or refuses to correct it, then it would be a willful building code violation. Mr. Smith advised the law does not say a willful violation of anything else; and the Statutes also prohibit the County from taking any disciplinary action against State certified contractors.

Discussion ensued on contacting the State Licensing Board if the State agency is not performing its duties, recommendations from the Construction Industry Study Committee to continue State licensing and have local jurisdictions investigate complaints, unfunded mandates, and additional staffing and cost.

Commissioner Scarborough recommended staff look at options under the current law of creating local jurisdictions, track events in the State Legislature, and hold in abeyance any action on enacting anything locally until the Board knows the course of action with the Legislature. He stated any time the County has the ability to respond to problems in the field, it should; but his concern is having to prove fraud or willful violation because that is difficult in any court or law, and will be difficult before a code board.

Commissioner Higgs stated the motion is to remove an exemption and not create a new process; the State has failed to do what it is required to do in instances she has been involved with, but she has not been involved with this instance; and people have been severely impacted financially by dealing with some State contractors. She stated the Florida Association of Counties is indicating the action the Legislature will probably take is further study on the issue; it may enact a law, but it does not seem like it will; so the Board should move forward because there are people who have been severely impacted financially.

Commissioner Cook suggested going to the State Legislators if there are instances where the State Contracting Board is not pursuing things. He stated he would like to see what the proposed State law does; and if it pushes it down to the County, then the County should get the license fees. He recommended research on that; and if the law is adopted, the Board consider a resolution stating it should not be an unfunded mandate. Commissioner Cook stated he is not prepared to vote on this issue without knowing what the State is going to do and finding out if there is a problem with the State not enforcing its laws. He stated he cannot support changing the Code, but would like to see the Board pursue other avenues.

Chairman O'Brien recommended staff prepare a list of what kind of complaints have been received, such as workmanship, quality of materials, what people feel occurred that cheated them, etc.; and if the Board had a comprehensive list of problems, it could put it in the legislative package for next year so consumers have some form of protection. He stated fraud and willful violation are gray areas, but with a comprehensive list, the Board can decide if it wants to go to the next step; however, without knowledge of how large or small the problem may be, it should not take action. He stated the Board could send a letter to the Legislative Delegation advising of complaints the State is not responding to if the information warrants action.

Discussion continued on funding from the State to regulate State contractors on the local level, staff providing additional information, withdrawal of the exemption from the County Code, impact on the budget, number of complaints received being about 40 per year mostly about workmanship, accountability, consumer protection, and demand that State agencies do their jobs.

Chairman O'Brien called for a vote on the motion. Motion did not carry; Commissioners Scarborough and Higgs voted aye, and Commissioners Cook, Voltz, and O'Brien voted nay.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to direct staff to obtain information on how many State building investigators are assigned to Brevard County, complaints, level of workload, and number of man-hours spent investigating complaints in Brevard County, and report to the Board. Motion carried and ordered unanimously.

DISCUSSION, RE: AMENDMENT TO LAND DEVELOPMENT ORDINANCES FOR SUBDIVISIONS

Chairman O'Brien advised this amendment will allow the developer to change the manner in which the lots are used, thus a residential lot may be changed to an ingress/egress point for other land without the County's approval. He stated the Board should direct the County Attorney to develop amendments to the Code which provide that once a subdivision plat has been approved by the Board, the platted property shall only be developed in the manner and for the purpose shown on the plat unless the modification is approved by the Board and with notice to affected property owners in the subdivision.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to direct the County Attorney to work with the Land Development staff to draft ordinances amending the current Site Plan and Subdivision Ordinances to allow developers to change the manner in which lots are used, and develop amendments to the Code providing that once a subdivision plat is approved by the Board, the platted property shall only be developed in the manner and for the purpose shown on the plat unless a modification is approved by the Board with notice to affected property owners in the subdivision.

Commissioner Voltz inquired if a developer who plans to construct phase 2 shows access to that phase at the time he brings in the original plat; with Gwen Heller responding generally a developer has allowance for future access, such as a tract to be used for future roadway purposes, on the face of the plat; so the motion would not impact that, and would only be for those tracts not so dedicated. Commissioner Voltz stated the case last week was not shown on the plat; with Ms. Heller responding at the time the subdivision plat was submitted, it was not going to be accessed through the first phase; therefore, they did not make an allowance on the first plat. Ms. Heller advised subsequent to their initial submittal, they submitted a revision because they successfully negotiated acquisition of the parcel where the road would go. She requested permission to include minor editorial changes throughout the ordinance to correct conflicting terms and for clarification.

Commissioner Scarborough amended the motion to authorize staff to make minor editorial changes throughout the ordinance to correct conflicting terms and for clarification; and Commissioner Cook accepted the amendment.

Commissioner Higgs stated she does not want to bog down the ordinance; and suggested the motions be separate. Commissioner Cook stated it is housekeeping and does not entail substantial changes. Chairman O'Brien recommended the motion include for housekeeping purposes only.

Commissioner Scarborough amended the motion to authorize staff to make minor editorial changes for housekeeping purposes only; and Commissioner Cook accepted the amendment.

Chairman O'Brien called for a vote on the motion, as amended. Motion carried and ordered unanimously.

WARRANT LISTS

Upon motion and vote, the meeting adjourned at 9:24 p.m.

RANDY O'BRIEN, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

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