TAMPA CITY COUNCIL
Thursday, June 4, 2009
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09:03:34 >>THOMAS SCOTT: [Sounding gavel]
09:03:35 Tampa City Council will now come to order.
09:03:36 The chair will yield to the honorable John Dingfelder.
09:03:40 >>JOHN DINGFELDER: It's my pleasure this morning to
09:03:43 introduce Reverend Matthew Horan.
09:03:47 Matt has been the associate pastor of Hyde Park United
09:03:49 Methodist Church since 2007.
09:03:52 The good news about him is that he moved to Orlando,
09:03:58 and he went to FSU.
09:03:59 Well, I guess that's good news.
09:04:03 I'm a Gator.
09:04:04 The bad news is he was born and raised in Philadelphia
09:04:07 and he's a Phillies fan.
09:04:10 We know what they did to our Rays. He's married to
09:04:16 his wife Susan and have a lovely daughter.
09:04:20 We'll stand and follow that with the pledge of
09:04:25 >> Reverend Horan: Now that you outed me, we need
09:04:29 more prayer.
09:04:30 Let's pray together.
09:04:34 God, we look around at this city, and we have much to
09:04:37 be thankful for.
09:04:40 We give thanks for the beauty of this place, for the
09:04:44 kindness and generosity of its people, and for the
09:04:48 possibility that is before us.
09:04:53 Look around at this city and we ask sometimes why?
09:04:57 Why are things not as good as they could be?
09:05:01 Why are people suffering?
09:05:03 Why are people homeless?
09:05:05 Why do people disagree, have difficulty coming
09:05:10 together, working together?
09:05:13 But then we look around and we ask, why not?
09:05:18 Why couldn't there be less homelessness, less
09:05:24 Why couldn't there be more peace, more harmony, more
09:05:27 working together?
09:05:31 We pray, God, that you would give us creative spirits.
09:05:34 Help to us see what is possible.
09:05:39 Help us to look around this room and ask ourselves
09:05:44 what might we do?
09:05:47 Help us to clearly hear your call on our lives, to
09:05:52 make the lives of those around us better.
09:05:55 Hope us to understand and appreciate the gifts you
09:05:57 have given us and help to us use them for the
09:06:00 betterment of the lives that we will come across.
09:06:04 We offer this place, this time, our very selves, to
09:06:08 you so that you can use us to offer hope to those
09:06:12 around us.
09:06:14 So I pray these things respecting the deeply felt
09:06:20 faith of all of those, offering the best that I have
09:06:23 to offer, offering this prayer in the name of Jesus
09:06:31 (Pledge of Allegiance).
09:06:45 >>CHARLIE MIRANDA: Thank you, reverend.
09:06:46 >>THOMAS SCOTT: We'll have roll call.
09:06:50 >>JOSEPH P. CAETANO: Here.
09:06:51 >>GWEN MILLER: Here.
09:06:52 >>CHARLIE MIRANDA: Here.
09:06:54 >>JOHN DINGFELDER: Here.
09:06:56 >>THOMAS SCOTT: Here.
09:06:57 The chair will now yield to councilman Charlie Miranda
09:07:01 for our presentation.
09:07:15 >>CHARLIE MIRANDA: Honorable chairman, I'm honored
09:07:17 today to make a presentation to a gentleman who has
09:07:25 been a lot of years, about 35 -- in fact, it is 35 --
09:07:28 with the City of Tampa, and I would like to ask him to
09:07:32 I never knew his name was Arlington.
09:07:39 I am not going to joke with you.
09:07:40 I know you are a serious guy.
09:07:42 But you are taking your life in your hand with me.
09:07:45 Come on up, Arlington.
09:07:48 Ybor City.
09:07:54 Arlington Ragsdale.
09:07:57 "Rags" has been the consummate professional, a true
09:08:02 He's been with the City of Tampa 35 years, recognized
09:08:07 as a genius in land acquisitions and working with top
09:08:12 priorities of the riverwalk and widening of 40th
09:08:15 He did most of the work regarding 40th Street.
09:08:22 I took a ride on 40th Street yesterday.
09:08:24 I want to say it's coming along beautifully.
09:08:27 But we want to thank you.
09:08:28 We wish you the best.
09:08:30 I know you are not going to retire.
09:08:32 You got too much energy for that.
09:08:34 So you are going to be doing some help in harassing
09:08:38 council members and saying, what are you doing with
09:08:41 So be one of the many callers and keep us straight.
09:08:48 May God bless you and your family.
09:08:49 And you have always done the right things.
09:08:51 In the fact, I remember -- when did you start with the
09:08:56 >> '74.
09:08:57 >> 1974.
09:08:59 I led you into that because that was the year I
09:09:02 started and you're retiring and I'm just tired.
09:09:04 So you're doing better than I am.
09:09:07 I remember when that started the trains were run by
09:09:10 Do you remember that?
09:09:11 >>> I can't remember that.
09:09:12 >>CHARLIE MIRANDA: All right, I do.
09:09:14 But it's an honor to stand here before you and give
09:09:18 you a commendation that we have with the council
09:09:21 members, not only these council members, but the many
09:09:24 council members that you worked with.
09:09:25 You worked with more mayors than anyone I know, except
09:09:31 maybe Brian.
09:09:33 [ Laughter ]
09:09:34 Thank you very much.
09:09:34 It's my honor.
09:09:36 I know you like to speak a lot, so here is the mike.
09:09:43 Here's your opportunity.
09:09:44 [ Applause ]
09:09:46 >>> Well, I've learned a lot since I have been here.
09:09:50 And I worked with a lot of people.
09:09:52 And I appreciate the opportunity to work with the
09:09:56 And I'll always remember all the fans I have here, and
09:10:00 I'll be back.
09:10:02 Thank you.
09:10:11 >>THOMAS SCOTT: Thank you.
09:10:12 Thank you.
09:10:13 We'll resume the agenda, pulled agenda and addendum at
09:10:18 this time.
09:10:28 >>> First is an off agenda item schedule an agenda
09:10:32 item on the June 18th.
09:10:35 The request is for June 18th at 11 o'clock a.m.
09:10:39 >>GWEN MILLER: So moved.
09:10:39 >>THOMAS SCOTT: Let me suggest that we go through all
09:10:42 of the items, and then we will move to all the changes
09:10:47 that that motion would include the changes.
09:10:49 The only issue is on this for the workshop for the
09:10:55 transfer of development rights.
09:11:01 >>LINDA SAUL-SENA: Can I ask a question about that?
09:11:03 Does that mean that -- I'm eager to move ahead with
09:11:09 the transfer of development rights.
09:11:11 We have been talking about this for a number of years.
09:11:13 I wonder if maybe we could look -- I mean, I want to
09:11:17 respect Cindy Miller's request but I would like to get
09:11:22 TDR --
09:11:24 This is really for backup.
09:11:26 Julia Cole will not be here in June.
09:11:28 >>LINDA SAUL-SENA: Okay.
09:11:32 >>THOMAS SCOTT: So we can continue this item.
09:11:34 >>LINDA SAUL-SENA: Can we continue the TDR to the July
09:11:40 >> I'm not sure when she's going to be back.
09:11:42 >>LINDA SAUL-SENA: I think she'll be back by then.
09:11:45 >>SAL TERRITO: It was sometime in August.
09:11:47 A lot of items on the workshop agenda already.
09:11:53 >> August does not have a workshop meeting.
09:11:55 So that means we are putting the TDRs off till --
09:11:58 >> We should have a meeting.
09:11:59 >>CLERK: August 27th is your workshop session for
09:12:03 >>LINDA SAUL-SENA: I misread it.
09:12:08 You're right.
09:12:08 That's great.
09:12:09 Okay. Great.
09:12:13 >>JOHN DINGFELDER: Second item.
09:12:14 I'm sorry.
09:12:15 >>THOMAS SCOTT: So the motion will include the changes
09:12:17 that Ms. Miller will make, the August 27th date at
09:12:22 what time?
09:12:23 >>LINDA SAUL-SENA: At 10:00. Or even 9:45.
09:12:28 I think the 9:30 workshop will be pretty short.
09:12:38 >>> Item 35 is a request for substitution.
09:12:41 There was an incorrect name on the special, the
09:12:44 downtown attractions.
09:12:47 Get the correct name on the resolutions.
09:12:49 >>THOMAS SCOTT: Okay.
09:12:52 >>SAL TERRITO: There was a late request on item 55
09:12:54 which dealt with the noise ordinance to be continued
09:12:57 to a later date to accommodate Ms. Saul-Sena.
09:13:01 >>THOMAS SCOTT: Ms. Saul-Sena, I have a request by
09:13:04 Miranda on item 55 and 58.
09:13:07 So a number of citizens come in.
09:13:12 On item 55, Ms. Saul-Sena, you want to address that
09:13:17 >>LINDA SAUL-SENA: Yes.
09:13:18 Thank you, Mr. Chairman.
09:13:20 I had had a conversation last Friday with Chief Hogue
09:13:24 that sounded as if the -- at first I talked with Chip
09:13:29 He said the legal department has no problem with the
09:13:32 He spoke with Chief Hogue on Friday.
09:13:34 He said it sounded good.
09:13:35 I spoke with the officer.
09:13:37 He's supposed to make a presentation today.
09:13:38 He said we have all kinds of problems.
09:13:40 I thought, whoa, maybe a conversation is the best way
09:13:44 to it.
09:13:46 We could continue -- we could have the staff report
09:13:49 today. But before we take action on it, maybe perhaps
09:13:51 we could have a special discussion meeting of the
09:13:55 community and the police and the I.T. people to figure
09:13:59 out a way to move towards this.
09:14:02 I just didn't want to dispose of this today in my
09:14:04 absence and not be able to have additional
09:14:08 conversations about it.
09:14:09 So if you want to have the police report today, that's
09:14:12 I just don't want it to not be able to have future
09:14:22 So I would be happy to just have -- I want to hear
09:14:25 from people in the audience, and I'm sure they want to
09:14:27 hear from the police, but maybe it's better to wait an
09:14:32 continue this, let's say, 60 days so that we have an
09:14:35 opportunity for a community conversation about it.
09:14:43 Sorry to ramble. But my succinct motion would be to
09:14:46 continue the staff report on this for 60 days.
09:14:52 Unless you all want to here from them today. But not
09:14:58 have additional dialogue.
09:15:00 >>THOMAS SCOTT: My suggestion would be at least hear
09:15:02 it today, and we can continue, take up any action we
09:15:06 want to take.
09:15:07 After all, the people are here today to hear it.
09:15:09 >>LINDA SAUL-SENA: Yes.
09:15:10 Thank you.
09:15:11 And the other one I have spoken about is number 58.
09:15:17 Mr. Huey has asked that it be continued to June
09:15:22 And I was wondering if we could continue it to our
09:15:24 next council meeting, which is the 25th.
09:15:28 >>THOMAS SCOTT: My suggestion would be that we take it
09:15:30 up on the 11th.
09:15:33 The reason, the motion has been given to the CRA.
09:15:36 Two is the 25th agenda is -- we would have to come
09:15:44 back the next day.
09:15:45 It's really, really long.
09:15:46 >> Anyway, I had an opportunity to have a
09:15:50 >>THOMAS SCOTT: So you are comfortable with the
09:15:53 >>LINDA SAUL-SENA: Yes.
09:15:54 Thank you.
09:15:54 I want you to know how much I appreciate you do,
09:15:59 Mr. Chairman.
09:15:59 >>THOMAS SCOTT: So in this instance we will hear the
09:16:02 staff report today but we won't take any action until
09:16:05 60 days which he's requesting.
09:16:08 >>SAL TERRITO: Item 56 is a memorandum from Mrs.
09:16:13 Miller asking that this item be postponed to June
09:16:16 25th, dealing with the FDOT conversion of a church
09:16:22 at Lamar.
09:16:25 Item number 62 is a request from David Vaughan to
09:16:29 continue that for 60 days.
09:16:37 The convention center.
09:16:38 We have a couple of items, 40 and 41 dealing with
09:16:42 public hearing requesting requests on June 25th at
09:16:47 There was a request that those be set for the first
09:16:50 item at 1:30 in the afternoon, 40 being 41 and 40
09:16:56 being item number 2.
09:16:58 Item number 65 and 66 are both dealing with order
09:17:05 issues, there's been a recommendation those be taken
09:17:07 off the agenda because do you have a workshop
09:17:09 scheduled for June 23rd at 9 a.m. to have address
09:17:12 this issue and rather than have it coming up every
09:17:18 week of the City Council members, as a regular matter.
09:17:20 Then on June 23rd you have the workshop, if you
09:17:25 want to have more reports on those items.
09:17:29 Item number 67, a request from Mr. Shelby that that
09:17:35 item be continued since he is not here to discuss
09:17:37 that, your rules of procedure.
09:17:41 Item number 68 is a request for continuance, at your
09:17:45 1:30 meeting this arch.
09:17:46 So you will have to take that up at 1:30 for the
09:17:49 continuance on that item.
09:17:51 Item number 64, there will be a slight slide
09:17:53 presentation dealing with that item.
09:18:00 All the other items are simply a rehash.
09:18:04 >>THOMAS SCOTT: Do we have a motion from Ms. Miller to
09:18:08 approve the agenda with the changes?
09:18:11 >>LINDA SAUL-SENA: Second.
09:18:11 >>JOHN DINGFELDER: I had to step out for a second.
09:18:14 Did you address item 8? That's the e-mail.
09:18:15 >>THOMAS SCOTT: No.
09:18:24 That's the pulled item?
09:18:25 >>JOHN DINGFELDER: It brings up a question just
09:18:31 When council asked to have things pulled, do they make
09:18:35 it on here?
09:18:37 Or is this just for staff?
09:18:41 >>THOMAS SCOTT: No, the process is, it has to be
09:18:45 pulled by a certain time, I think 24 hours.
09:18:48 If they don't meet that time they are not able to get
09:18:50 on the agenda.
09:18:56 >>JOHN DINGFELDER: I think it's been interpreted as 24
09:18:59 I think it said the day before.
09:19:02 Is that the procedure?
09:19:08 >>THE CLERK: Normally the items pulled for discussion
09:19:10 we do require a memorandum being sent to the chair and
09:19:13 the council members, Mr. Darrell Smith, that we place
09:19:16 it on the addendum to make everyone aware that it's
09:19:18 going to be pulled.
09:19:19 >> What's your time frame?
09:19:24 >>THE CLERK: A day or more in advance of the public
09:19:26 hearing or the council meeting.
09:19:28 >>JOHN DINGFELDER: How do you interpret that a day?
09:19:32 >>THE CLERK: Usually we prefer to have it in Wednesday
09:19:35 morning so we can do the addendum and get to the
09:19:42 >>JOHN DINGFELDER: I just want to know what's the
09:19:43 expectation. Anyway, Mr. Chairman, I had a chat with
09:19:46 staff and they gave me the information I needed so I
09:19:49 don't need to pull that today.
09:19:50 >>THOMAS SCOTT: You doesn't don't want to pull it.
09:19:55 Motion and a second to approve the agenda.
09:19:57 All in favor signify by saying Aye.
09:20:02 Thank you very much.
09:20:03 At this time we will take public comment.
09:20:06 We have set aside 30 minutes for public comment.
09:20:09 However, the give priority to those items on the
09:20:12 agenda first.
09:20:13 So if you want to address council, you may, with the
09:20:16 item on the agenda, may come forward at this time.
09:20:18 All persons who wish to address council, please come
09:20:23 We give preference to those items first on the agenda.
09:20:39 State your name and address for the record.
09:20:45 You have three minutes.
09:20:46 >>> Michael Rivera, Tampa, Florida.
09:20:53 Good morning.
09:20:56 Well, I come here today to discuss the noise
09:21:02 And I feel it's a big issue in the City of Tampa.
09:21:07 I'm an Allstate agent and I am constantly traveling to
09:21:10 policyholders houses to conduct business, as well as
09:21:15 the local businesses around the area.
09:21:19 And I encounter a lot of distractions from individuals
09:21:24 that are either at their residence listening to music
09:21:27 or driving down the street with their music blasting,
09:21:33 blasting to the point where it's causing vibrations
09:21:37 wherever it is that I am currently at, and sometimes
09:21:42 there will be an individual that will just stationery,
09:21:51 blasting the bass so that it's so loud it's hard to
09:21:55 comprehend what we are trying to accomplish.
09:21:58 And I just feel that there needs to be something done.
09:22:02 I know they have they have got -- they are working on
09:22:04 a St. Pete ordinance that will allow us residents to
09:22:09 assist the police department in notifying them of
09:22:15 individuals that are violating the possible ordinance.
09:22:18 And we are just hoping to get something situated.
09:22:21 It's for the benefit of everybody.
09:22:23 Everybody would like to live in a community where
09:22:27 there's not much distraction from the outside.
09:22:30 We like to feel when we are at home, that's our
09:22:33 comfort zone.
09:22:34 And it's hard -- it's hard to feel like that when we
09:22:37 have got outside distractions from music, from
09:22:42 individuals, from whatever.
09:22:45 So we are hoping, we are hoping, as business people,
09:22:51 we are hoping we can accomplish something.
09:22:53 Because it's getting to the points now where every --
09:22:56 I would say every fourth person is just blasting their
09:22:59 music, whether it's bass or whether it was just music.
09:23:03 And we are hoping to get something done.
09:23:05 I'm hoping you guys can work something out.
09:23:09 Thank you.
09:23:10 >>LINDA SAUL-SENA: Thank you.
09:23:13 >>> Good morning, council men and women.
09:23:18 My name is LeRon Benjamin. I reside at 14012 Bridal
09:23:24 lane here in Tampa, Florida.
09:23:26 I kind of come to you at a different direction with
09:23:29 the noise issue.
09:23:31 First of all, just to let you know, I'm typically here
09:23:33 on the economic side of it, with the city.
09:23:37 However, it's come to my attention that in many areas,
09:23:42 I would say, in the East Tampa area that I'm currently
09:23:45 serving on one of those committees or boards.
09:23:47 The noise has gotten past epidemic proportion
09:23:53 throughout the neighborhood, especially for both the
09:24:00 people as well as the businesses in the community at a
09:24:04 degree where they are unable to do business within the
09:24:07 So one of my concerns from the economic side, if we
09:24:11 are not able to have people that come in our
09:24:14 neighborhood to have buy goods and services because of
09:24:17 the loud music, or maybe perhaps because some of the
09:24:22 bars and institutions are open with their music loud,
09:24:27 that concerns me.
09:24:29 So I believe that it's time for law enforcement to
09:24:34 take another step to aid the citizens in governing the
09:24:40 community in a level that everybody has a good quality
09:24:43 of life in the community.
09:24:45 So I think a change in the ordinance.
09:24:49 Many times the officer that's serving the community
09:24:53 can't measure the noise going up and down the street
09:24:56 because he doesn't have a noise meter on him.
09:24:59 It needs to be a different ordinance that will require
09:25:03 people to obey and follow the laws as written.
09:25:07 So I'm actually, on behalf of those people that I
09:25:12 serve, in the East Tampa area, that you take a closer
09:25:16 look as councilmen and women at making a difference
09:25:20 with this ordinance.
09:25:22 Thank you very much.
09:25:27 >>> My name is clay Daniels, 3708 north bay, Tampa,
09:25:32 We have a serious problem with the noise.
09:25:36 I brought this to the attention of the police
09:25:38 department in 2002.
09:25:40 It is a sorry use problem.
09:25:41 We can no longer just let it go on.
09:25:43 Peoples are suffering.
09:25:44 They don't need to suffer when we can do something
09:25:46 about this problem.
09:25:47 We cannot look the other way.
09:25:49 The problem is it's epidemic.
09:25:51 I wake up and go to bed, it's not about me.
09:25:55 These people sign these petitions, the noise is
09:25:58 killing us.
09:25:58 It is a problem.
09:25:59 And we need to do something about it.
09:26:02 St. Pete came up with a program that only cost 35
09:26:06 cents when the citizens get involved.
09:26:08 You all have a copy.
09:26:10 When the citizens get the tag numbers, report it to
09:26:12 the police department, and he give them a tool, and it
09:26:20 makes it $96.
09:26:22 It was so bad in Brooksville they went to City Council
09:26:24 to impound cars from loud music, $96.
09:26:29 Sarasota the same way.
09:26:30 This is the problem.
09:26:31 Dr. Lewis Healey told, you all have a copy of this, in
09:26:38 2002 at a noise convention, the number one complaint
09:26:41 in noisy neighborhoods.
09:26:44 More teenagers, if you go to the national highway
09:26:48 safety, more teenagers get killed by distraction of
09:26:51 loud music from the boom-boom-boom than a DUI.
09:26:57 We got a problem.
09:26:58 And we can't look the other way.
09:27:02 Not trying to turn politics into religion.
09:27:04 Why should we continue to suffer?
09:27:06 Tampa is a beautiful city.
09:27:07 And we are running behind in a lot of stuff like this.
09:27:10 St. Pete, it's the discretion of the police officers,
09:27:16 because the meter have an effect with the wind and the
09:27:19 They don't use it anymore.
09:27:20 And the next problem is, when the police come out to
09:27:23 the house, they say, I'm not trained, I don't have the
09:27:30 The meter is over in Ybor City.
09:27:33 I don't have the meter.
09:27:34 And I'm not here to criticize.
09:27:36 The police department is doing a good job but it will
09:27:39 be more effective when the citizens who live in the
09:27:41 area work with the police department.
09:27:43 Four eyes is better than two.
09:27:45 Thank you very much.
09:27:46 I'm telling you all, please don't let this go.
09:27:49 We let too many things go in our society.
09:27:51 This one we need to tackle.
09:27:54 We already got a crack cocaine epidemic in our
09:27:57 We need to tighten this problem.
09:28:01 I'm begging you all to do something about this
09:28:03 It is a problem.
09:28:04 And it's going to get worse.
09:28:08 >>THOMAS SCOTT: Thank you very much.
09:28:08 Anyone else wish to address council?
09:28:20 Anyone else?
09:28:21 Come forward, please.
09:28:22 This is the last gentleman now.
09:28:23 >>> Thank you for your time.
09:28:25 Thank you for showing an interest the problems in our
09:28:28 neighborhood ever face being this sound.
09:28:31 My name is David Head, address for my business is 4319
09:28:36 north 40th Street in Tampa.
09:28:40 Increasing numbers of excessively loud automotive
09:28:43 stereo systems is a nuisance in our area.
09:28:46 I own and manage a business on 40th Street and we
09:28:49 combat the loud music problem on a daily basis.
09:28:52 At times, we have to tell people, our own customers
09:28:55 even, to please turn down the volume because we cannot
09:28:58 talk on the telephone inside my office.
09:29:06 Or have a conversation outside.
09:29:08 There is a Florida statute, 316.3045 that addresses
09:29:13 this problem.
09:29:14 But enforcement is debatable.
09:29:18 The law was amended in November of 2006 to be even
09:29:21 more sensitive from 100 feet to 25 feet, and it's at
09:29:26 the officers' discretion.
09:29:27 You don't need a meter.
09:29:32 Just like Quay said, the Clearwater Police Department,
09:29:35 St. Pete, has started a program, all on the Internet,
09:29:41 read about it, fill out the form online, send out a
09:29:46 If it happens again, they understand that they are
09:29:49 getting a letter in the mail.
09:29:50 If it's a juvenile the parent gets the letter with the
09:29:53 tag number, description of the vehicle, description of
09:29:56 the driver.
09:29:58 I think it's a great idea.
09:30:00 And it could be replicated here at a very low cost.
09:30:03 And I'm sure there's a lot of residents that would be
09:30:06 willing to fill out a form right now, a tag number
09:30:09 right now, the description of a vehicle.
09:30:11 And if you read that article in the Tampa Tribune, the
09:30:17 chairman of the south Super Bowl host committee, the
09:30:21 article entitled too much noise.
09:30:23 Anybody read it?
09:30:25 Beginning of the year?
09:30:27 In response to the Tampa "The Tampa Tribune" story
09:30:31 Tuesday on the B-plus grade given to Tampa for hosting
09:30:34 the Super Bowl family members who stayed downtown in
09:30:38 Tampa for the weekend had their stay marred by blaring
09:30:41 noise from car stereos.
09:30:43 It happened every night.
09:30:45 It was so annoying they attempted to change hotels
09:30:49 both Thursday and Friday nights but couldn't find
09:30:50 another hotel.
09:30:51 Finally on Saturday they stayed with me to get away
09:30:53 from the noise.
09:30:56 Laws are on or books against such behavior.
09:30:59 But not being sufficiently enforced.
09:31:02 My family agrees despite the great entertainment,
09:31:04 dining, hospitality, this single factor would prevent
09:31:08 their return as tourists.
09:31:11 It's not just Tampa.
09:31:13 It's a shame law enforcement allows the problem to
09:31:16 And that's not completely fair.
09:31:18 But it does happen.
09:31:21 And it continues to happen.
09:31:22 And law enforcement is not taking it seriously.
09:31:26 Other cities enforce such laws.
09:31:29 Until we do, expect tourists such as my family members
09:31:32 not to return.
09:31:36 A guy that hosts the south Florida Super Bowl commit?
09:31:39 This is a guy that's, you know, involved with bringing
09:31:44 huge, millions and millions of dollars of revenue to
09:31:47 the city.
09:31:53 Thank you.
09:31:53 >>THOMAS SCOTT: Thank you, sir.
09:32:03 Oh anyone here wish toe address council on a
09:32:05 legislative matter? Legislative matter?
09:32:07 Okay, yes.
09:32:14 >>> Good morning.
09:32:15 I'm Al Jackson, 407 south west Westshore Boulevard.
09:32:20 And I would like to ask for your reconsideration on
09:32:30 last Thursday evening on PA 08-06.
09:32:33 And there were some questions raised and some issues
09:32:36 brought up during the course of that public hearing
09:32:41 where we weren't able to provide the full amount of
09:32:45 I would like to gather that information and present
09:32:46 that to you.
09:32:49 And so that's why I'm asking for that reconsideration
09:32:53 for me to be able to come back to you with that
09:32:55 additional information.
09:32:57 >>CHARLIE MIRANDA: This gentleman, I think, we had
09:33:00 trouble hearing you, I think, you were a very kind
09:33:05 This is the one that's just west of Dale Mabry.
09:33:11 >>> Right.
09:33:12 In the Westshore area, in the Westshore Palms
09:33:17 >>CHARLIE MIRANDA: The plan amendment from 20-some
09:33:20 units to 53 as I recall.
09:33:22 >>> No, it was going from the res 20 to a res 35,
09:33:27 allowing 30 units up to 53 units.
09:33:32 >>CHARLIE MIRANDA: Right.
09:33:33 That's what it is.
09:33:34 I just wanted to see if my memory was still serving me
09:33:38 which sometimes it leaves on vacation.
09:33:39 But you're saying the record was incomplete?
09:33:43 >>> Well, there were some questions brought up by
09:33:45 council members asking specific questions of which I
09:33:50 didn't have the full information to be able to give to
09:33:53 you, and I would like to be able to assemble that
09:33:55 information, come back, and give you that further
09:33:59 information of the questions that were asked.
09:34:01 >>THOMAS SCOTT: Legal, can you spoke to that?
09:34:04 >>SAL TERRITO: (off microphone).
09:34:12 >>THOMAS SCOTT: That was part of the planned amendment
09:34:15 that we voted down?
09:34:16 >>> Correct.
09:34:22 In these economic times I think it would really be
09:34:28 beneficial for us to work together to make the project
09:34:30 come together.
09:34:32 >>THOMAS SCOTT: Council, why don't we take a look at
09:34:35 that at the end of the agenda?
09:34:36 That way, we can give Salvador time to research that
09:34:43 and bring back a recommendation.
09:34:45 I'm not sure that how to proceed at this point, what
09:35:00 the rule is on that.
09:35:02 Mr. Fletcher, do you have the information on that?
09:35:05 >>CHARLES FLETCHER: In very general terms a plan
09:35:07 amendment is a legislative matter so you could
09:35:10 reconsider it.
09:35:11 You would have to go back through our notice process,
09:35:13 though, and notice it for a hearing at some point in
09:35:16 the future, if you all decided you wanted to
09:35:19 consider -- reconsider the item.
09:35:23 >>THOMAS SCOTT: Councilman Dingfelder.
09:35:24 >>JOHN DINGFELDER: Thank you, Mr. Chairman.
09:35:28 Clearly, council had some issues with the project.
09:35:33 But, at the same time, we are seeing so few projects,
09:35:37 you know, and so few developers that actually wants to
09:35:40 do something.
09:35:41 So I'm not saying we should by any means reverse
09:35:45 course or change our mind or anything like that.
09:35:48 But I think if this gentleman wants to go back and
09:35:51 work with staff, maybe tweak his plan amendment, see
09:35:54 what he can do to make it different or make it better,
09:35:59 then I think he should at least be given the
09:36:03 Otherwise he's going to have to wait a cycle and
09:36:07 refile, and the filing fee and everything else.
09:36:09 So I think as long as legal is okay with it, I would
09:36:12 be amenable to make a motion to allow him the
09:36:16 >>SAL TERRITO: I'm sorry, we have to bring the
09:36:19 reconsideration back the next meeting.
09:36:21 Then somebody on the prevailing side will have to make
09:36:24 a motion to reconsider.
09:36:29 >>THOMAS SCOTT: It was a 7-0 vote I thought.
09:36:33 Yes, go ahead.
09:36:38 >>LINDA SAUL-SENA: Mr. Dingfelder, this is a really
09:36:40 nice -- you are a nice person and I thought come back
09:36:43 with 20 great units, wonderful design.
09:36:46 It was the unanimous vote.
09:36:47 There was a negative recommendation from our staff as
09:36:51 well as from the Planning Commission staff.
09:36:53 This was not gray.
09:36:55 This was very -- and the difference was a significant
09:36:59 increase in the density in an area that was surrounded
09:37:02 on three sides with less density.
09:37:05 It was negative from the Planning Commission staff,
09:37:09 negative from our staff, unanimous vote by council
09:37:12 So based on that, based on the fact that it wasn't
09:37:18 more closely argued, I think it would be a waste of
09:37:23 And I also think it societies kind of a bad proceeds
09:37:25 dents for folks who get turned down to feel that,
09:37:28 well, let's just try again.
09:37:34 It was not a grayish you.
09:37:36 >>THOMAS SCOTT: There's a motion on the floor.
09:37:38 The motion is by councilman Dingfelder.
09:37:44 >>JOSEPH P. CAETANO: Mr. Dingfelder said he was not
09:37:48 We need to stimulate some economy in the city.
09:37:52 And if he could revise his plans with the staff, and
09:37:55 let's put our heads together, maybe we can help him.
09:37:58 >>THOMAS SCOTT: Okay.
09:37:59 Do we have a second on that motion?
09:38:01 >>GWEN MILLER: Second.
09:38:04 >>CHARLIE MIRANDA: Mr. Chairman, I agree with Ms.
09:38:07 This gentleman seems to be a fine individual.
09:38:09 He spoke.
09:38:10 I remember the words that he was telling the Planning
09:38:11 Commission, that the Planning Commission erred because
09:38:16 they were looking at it as a rezoning and not a plan
09:38:20 I find that to be inconsistent with those planners at
09:38:23 the Planning Commission.
09:38:24 They know what they are doing.
09:38:26 I'm not a planner.
09:38:28 But they know the difference between a zoning and a
09:38:32 plan amendment.
09:38:33 And I'm not going to support the motion based on what
09:38:37 I know about the Planning Commission.
09:38:38 >>THOMAS SCOTT: Councilman Dingfelder.
09:38:42 >>JOHN DINGFELDER: There seems to be a little bit of
09:38:44 confusion because when I looked into this it appeared
09:38:47 to me that the Planning Commission staff had
09:38:49 originally recommended approval.
09:38:53 But the Planning Commission board had denied this or
09:38:58 recommended denial.
09:38:59 So I just wanted to clarify that.
09:39:01 Because that's my understanding of the actual record
09:39:04 So I think the Planning Commission staff that we all
09:39:10 respect greatly, apparently, recommended approval on
09:39:12 this, the elected body over there, and this elected
09:39:15 body didn't see that the way.
09:39:17 So, but anyway --
09:39:22 >>LINDA SAUL-SENA: And our staff said that.
09:39:24 >>JOHN DINGFELDER: Okay, that's fine.
09:39:25 I just wanted to clarify that.
09:39:26 >>GWEN MILLER: So the planning would agree to meet,
09:39:32 and the economy is down and people are not building
09:39:34 and we need this in the community for more economic
09:39:37 If he's planning to work with the Planning Commission
09:39:39 and the staff to revise his plan, and work everything
09:39:43 that would be suitable for that neighborhood, then I
09:39:45 can't see a reason to not support it.
09:39:47 >>JOHN DINGFELDER: Just for clarification, the motion
09:39:50 is to bring it back.
09:39:51 >>JOSEPH P. CAETANO: Reconsider.
09:39:54 >>JOHN DINGFELDER: But then would you bring it back
09:39:57 for some other process?
09:39:58 >> I think you want it as two separate motion, a
09:40:01 motion to reconsider, then another motion on what
09:40:05 action you want to take.
09:40:10 >>CHARLES FLETCHER: As far as we know this has not
09:40:12 been done before as a city.
09:40:14 But I believe the process would be to move to
09:40:17 If that reconsideration is approved, you would set it
09:40:22 for a date in the future that would give us sufficient
09:40:24 time to provide the notice, consult with the Planning
09:40:26 Commission, consult with staff, and in discussion we
09:40:30 think that would be about 60 days, would be
09:40:33 So the first action would be to reconsider.
09:40:35 If it's reconsidered, it's back on your table, and
09:40:39 then you would at that point set the hearing, when you
09:40:42 would bring back and reconsider whatever the change to
09:40:46 the plan was at that point in time.
09:40:48 >>THOMAS SCOTT: Okay, the question I have for us, I
09:40:52 think you open Pandora's box with this.
09:40:56 What is the history of council taking up these kind of
09:41:01 plan amendments, reversing itself or rehearing them?
09:41:05 >>JOHN DINGFELDER: We used to do reconsiderations.
09:41:07 >>GWEN MILLER: We had some but --
09:41:11 >> There's no question that you have the authority to
09:41:13 do this.
09:41:13 We just don't have a procedure in place for how it
09:41:16 would occur.
09:41:18 And I think accordingly the way to handle that would
09:41:21 be if council chooses to reconsider it, we would then
09:41:24 basically start a notice process, as you would with
09:41:28 any other plan amendment.
09:41:29 And then it's also possible because of that process,
09:41:34 as a Planning Commission, we have to figure out how
09:41:36 that interaction works.
09:41:37 But assuming that it was a similar or less intense
09:41:41 use, which is what I think we are discussing, then it
09:41:44 would not have to go back to the Planning Commission.
09:41:50 >>LINDA SAUL-SENA: Mr. Chairman?
09:41:52 >> Yes.
09:41:53 >>LINDA SAUL-SENA: Mr. Fletcher, we all know that
09:41:55 there is a vast difference between a rezoning and a
09:41:58 plan amendment.
09:41:59 In a rezoning, particularly a PD rezoning where you
09:42:02 have all kinds of details where you can build into the
09:42:05 agreement, that is a very particular process.
09:42:08 A plan amendment is much more broad brushed.
09:42:11 It is simply asking to go from one land use category
09:42:14 to another.
09:42:15 There is no finessing, there is no subtleties, there
09:42:20 are no waivers that one can write in.
09:42:22 So I don't see in this particular case why -- not to
09:42:25 take work away from staff, but I don't see how a
09:42:28 petitioner could possibly come to a different
09:42:30 conclusion when they are still asking for the same
09:42:33 thing, and there is no ability for an individual to
09:42:37 put caveats on it or change it in any way.
09:42:40 That's why I don't -- I mean, I'm not disagreeing with
09:42:43 you for the amounts of time.
09:42:44 I just don't see where there's any opportunity for
09:42:47 conversation, because you are just going from one plan
09:42:51 category to another.
09:42:52 Isn't that correct?
09:42:57 >>CHARLES FLETCHER: Generally speaking, yes, you are
09:42:59 going from one plan category to another.
09:43:01 >>JOHN DINGFELDER: Mrs. Saul-Sena, I would agree with
09:43:03 you generically, however it's my understanding this
09:43:06 was several parcels that were combined across the
09:43:08 streets from each other.
09:43:09 So let's say, for example -- and I have no idea if
09:43:12 this gentleman wants to go this route, but let's say
09:43:15 for example he heard council and he said, okay, maybe
09:43:18 I'll just split this out and just cut back and ask for
09:43:21 less, I'll ask for the R-35 on one side of the street,
09:43:25 and the R-20 on the other, something like that.
09:43:28 Maybe he wants to be creative.
09:43:30 All I'm saying is, you know what?
09:43:32 Let's allow him to try and let him be creative and see
09:43:35 what he can come up with.
09:43:37 He's done good stuff in the past and I believe that he
09:43:39 can do good stuff in the future.
09:43:41 >>THOMAS SCOTT:
09:43:42 >>THOMAS SCOTT: Thank you.
09:43:42 There's a motion on the floor.
09:43:43 We spent too much time on this.
09:43:45 There's a motion on the floor.
09:43:46 All in favor of the motion for reconsideration,
09:43:48 signify by saying Aye.
09:43:53 >>THE CLERK: Motion failed with Saul-Sena, Scott,
09:43:56 Miranda, Mulhern voting no.
09:43:58 >>THOMAS SCOTT: Okay.
09:43:58 Now, I think staff can get with him, explain to him
09:44:01 the process that he can do.
09:44:03 He can come back.
09:44:05 There's a process already in place to address that.
09:44:07 Thank you, sir.
09:44:11 We'll take up now the ordinance for first reading,
09:44:14 item number 2.
09:44:23 >>JOHN DINGFELDER: An ordinance for first reading, an
09:44:25 ordinance authorizing the installation and maintenance
09:44:27 of an encroachment, proposed canopy by MW Hyde Park
09:44:32 LLC over a portion of the public rights-of-way known
09:44:34 as Swann Avenue as more particularly described herein
09:44:36 subject to certain terms, covenants, conditions and
09:44:38 agreements as more particularly described herein,
09:44:40 providing an effective date.
09:44:40 >>LINDA SAUL-SENA: Second.
09:44:43 >>THOMAS SCOTT: Seconded by Councilwoman Saul-Sena.
09:44:45 All in favor --
09:44:48 >>MARY MULHERN: Want to ask if there's several people.
09:44:58 >>THOMAS SCOTT: All in favor signify by saying Aye.
09:45:01 >>THE CLERK: Second reading and adoption will be held
09:45:04 on June 25th at 9:30.
09:45:06 >>THOMAS SCOTT: Thank you.
09:45:07 We move now to our committee reports, public safety,
09:45:10 councilwoman Miller.
09:45:11 >>GWEN MILLER: Move resolutions 3 through 5.
09:45:16 >>CHARLIE MIRANDA: Second.
09:45:17 (Motion carried).
09:45:19 >>THOMAS SCOTT: Parks and recreation.
09:45:21 Councilwoman Saul-Sena.
09:45:22 >>LINDA SAUL-SENA: I would like to move resolution 6,
09:45:26 7 and 9 through 11.
09:45:27 >>CHARLIE MIRANDA: Second.
09:45:31 (Motion carried).
09:45:32 >>THOMAS SCOTT: Public works.
09:45:33 Councilman Miranda.
09:45:33 >>CHARLIE MIRANDA: I move items 12 through 17.
09:45:36 >>THOMAS SCOTT: Seconded by councilman Dingfelder.
09:45:39 (Motion carried)
09:45:41 Finance Committee, councilwoman Mulhern.
09:45:46 >>MARY MULHERN: I move items number 18 through 23.
09:45:51 >>JOHN DINGFELDER: Second.
09:45:54 >>LINDA SAUL-SENA: Second.
09:45:55 >>THOMAS SCOTT: Moved and seconded.
09:45:55 (Motion carried)
09:45:57 Building and zoning, councilman Caetano.
09:45:59 >>JOSEPH P. CAETANO: I move items 24 to 29.
09:46:02 >>THOMAS SCOTT: Seconded by councilman Miranda.
09:46:04 (Motion carried)
09:46:06 Transportation committee, councilman Dingfelder.
09:46:10 >>JOHN DINGFELDER: I move items 30 through 36 with a
09:46:12 substitution ordinance on 35.
09:46:14 >>THOMAS SCOTT: Seconded by councilman Miranda.
09:46:17 (Motion carried)
09:46:20 Public hearings.
09:46:21 >>GWEN MILLER: I would like to set 37 through 42.
09:46:25 >>THOMAS SCOTT: Moved and seconded.
09:46:26 >>GWEN MILLER: 40 and 41.
09:46:36 40 first on the agenda and 41 second on the agenda.
09:46:39 >>THOMAS SCOTT: Seconded by councilman Miranda.
09:46:41 (Motion carried)
09:46:42 At this time we move to our public hearings.
09:46:48 We need persons to stand and be sworn.
09:46:50 (Oath administered by Clerk)
09:46:59 >>THOMAS SCOTT: Item 43.
09:47:06 Anyone wishing to address council on item --
09:47:13 >>GWEN MILLER: Move to open 43 through --
09:47:19 >> Second.
09:47:19 >> Move.
09:47:21 >>THOMAS SCOTT: Anyone wishing to address council?
09:47:24 >> Move to close.
09:47:25 >> Second.
09:47:25 (Motion carried).
09:47:26 >>THOMAS SCOTT: Item 43.
09:47:29 >>MARY MULHERN: Thank you, Mr. Chairman.
09:47:30 I move a resolution ordinance titled resolution
09:47:34 rescinding -- can I just read it off the agenda?
09:47:39 >> Second reading.
09:47:40 >> An ordinance being presented for second reading and
09:47:42 adoption, an ordinance vacating closing continuing and
09:47:45 abandoning a certain right-of-way, a portion of
09:47:48 alleyway lying south of Martin Luther King Jr.
09:47:50 Boulevard north of Virginia east of North Boulevard
09:47:53 and west of Clearfield Avenue in a subdivision of
09:47:56 block 5, west Arlington Heights, a subdivision of the
09:47:59 City of Tampa, Hillsborough County Florida the same
09:48:02 being more fully described in section 2 hereof
09:48:05 reserving certain easements and conditions, providing
09:48:08 an effective date.
09:48:08 >>THOMAS SCOTT: Seconded by councilman Dingfelder.
09:48:11 Record your vote.
09:48:16 >>THE CLERK: Motion carried with Miranda being absent.
09:48:22 >>THOMAS SCOTT: Item 446789 anyone wishing to address
09:48:24 council on item 44?
09:48:27 >>LaCHONE DOCK: Land Development Coordination.
09:48:29 Item 44, 47 to 49, 51 and 52 all require certified
09:48:35 site plans.
09:48:35 Those plans have been certified by the zoning
09:48:37 administrator and provided to the clerk and copies of
09:48:40 those plans in case you have any questions.
09:48:42 >>THOMAS SCOTT: Thank you very much.
09:48:44 Motion to close?
09:48:48 >> So moved.
09:48:49 >>LINDA SAUL-SENA: Second.
09:48:49 (Motion carried).
09:48:50 >>THOMAS SCOTT: Councilman Miranda, item 44.
09:48:53 >>CHARLIE MIRANDA: Item number 44, move an ordinance
09:48:56 presented for second reading and adoption, an
09:48:59 ordinance rezoning property in the general vicinity of
09:49:01 3912, 3915, 3917 North Boulevard and 642 west Dr.
09:49:06 Martin Luther King Boulevard in the city of Tampa,
09:49:10 Florida and more particularly described in section 1
09:49:13 from zoning district classifications RS-50,
09:49:16 residential single-family to CG commercial general to
09:49:18 PD planned development, retail sales, shoppers' goods
09:49:23 and specialty goods, providing an effective date.
09:49:26 >>THOMAS SCOTT: It's been moved an seconded.
09:49:28 Record your vote.
09:49:29 Item 44.
09:49:34 >>THE CLERK: Motion carried unanimously.
09:49:36 >>THOMAS SCOTT: Item 45.
09:49:37 Anyone wishing to address council on item 45?
09:49:41 Anyone wishing to address council on item 45?
09:49:43 >> Move to close.
09:49:44 >> Second.
09:49:45 >>THOMAS SCOTT:
09:49:46 (Motion carried).
09:49:48 >>GWEN MILLER: I move to adopt the following ordinance
09:49:50 upon reading, an ordinance of the city of Tampa,
09:49:55 Florida approving the sixth amendment to the
09:49:57 development order for the Tampa Bay center development
09:49:59 of regional impact DRI number 16, a previously
09:50:02 approved development of regional impact, rendered
09:50:06 pursuant to chapter 380, Florida statutes, in response
09:50:10 to a notification of proposed change filed by the
09:50:13 Buccaneers football stadium limited partnership,
09:50:17 providing an effective date hereof.
09:50:19 >>THOMAS SCOTT: It's been moved and seconded by
09:50:20 councilman Dingfelder.
09:50:22 All in favor record your vote.
09:50:29 >>THE CLERK: Motion carried unanimously.
09:50:30 >>THOMAS SCOTT: Item 46.
09:50:32 Anyone wishing to address council on item 46?
09:50:35 >>GWEN MILLER: Move to close.
09:50:37 >> Second.
09:50:37 (Motion carried).
09:50:40 >>LINDA SAUL-SENA: I would like to move the following
09:50:42 ordinance for second reading and adoption, an
09:50:44 ordinance approving a historic property tax exemption
09:50:46 application relative to the restoration, renovation,
09:50:50 or rehabilitation of certain property owned by Ybor
09:50:53 Havana LLC located at 1302 north 23rd street,
09:50:57 Tampa, Florida, in the Ybor City historic district,
09:51:00 based upon certain findings, providing for notice to
09:51:03 the property appraiser of Hillsborough County,
09:51:05 providing for severability, providing for repeal of
09:51:08 all ordinances in conflict, providing an effective
09:51:12 >>CHARLIE MIRANDA: Second.
09:51:12 >>THOMAS SCOTT: Record your vote.
09:51:22 >>THE CLERK: Motion carried unanimously.
09:51:23 >>THOMAS SCOTT: Item 47.
09:51:24 Item 47.
09:51:25 Anyone wishing to address council on item 47?
09:51:35 >>> Good morning.
09:51:37 Al Steenson, 4100 west LEILA Avenue representing the
09:51:42 Sun Bay South Association.
09:51:45 I want to reiterate what I said two weeks ago.
09:51:49 We have very strong support for this, and also the
09:51:52 Many of the letters of support and e-mails that were
09:51:55 presented two weeks ago were people that aren't even
09:51:58 members of our association.
09:52:01 So it's not just us, it's the community that wants
09:52:05 Now, yesterday was a very dismal day over at county
09:52:08 Here is a gentleman that wants to invest over a
09:52:10 million dollars in our community, and we strongly urge
09:52:13 you to pass this on second reading, so we canning and
09:52:18 get moving on this, and hopefully be open by the
09:52:21 beginning of football season.
09:52:23 Thank you very kindly.
09:52:27 >>THOMAS SCOTT: Okay.
09:52:27 Anyone else wish to address council on item 47?
09:52:30 Motion to clogs?
09:52:32 >>CHARLIE MIRANDA: So moved.
09:52:33 >>THOMAS SCOTT: Second?
09:52:34 >>LINDA SAUL-SENA: Second.
09:52:35 (Motion carried)
09:52:38 Item 47.
09:52:39 Councilman Caetano.
09:52:40 >>JOSEPH P. CAETANO: An ordinance for second reading
09:52:44 and adoption, an ordinance approving a special use
09:52:46 permit S-2 for alcoholic beverage sales small venue
09:52:49 and making lawful the sale of beverages containing
09:52:52 alcohol regardless of alcoholic content beer, wine and
09:52:54 liquor 4(COP-R) for consumption on the premises only
09:52:57 in connection with a restaurant business establishment
09:53:00 at or from that certain lot, plot or tract of land
09:53:03 located at 6112 South Westshore Boulevard and 4733
09:53:08 west Bay Avenue, Tampa, Florida as more particularly
09:53:10 described in section 2 hereof, approving waivers set
09:53:13 forth herein, waiving certain restrictions as to
09:53:17 distance based upon certain findings, providing for
09:53:20 repeal of all ordinances in conflict, providing an
09:53:22 effective date.
09:53:23 >>THOMAS SCOTT: Moved and seconded by councilman
09:53:26 Record your vote.
09:53:34 >>THE CLERK: Motion carried with Dingfelder being
09:53:36 >>THOMAS SCOTT: Item 48.
09:53:37 Item 48.
09:53:38 Anyone wish to address council on item 48?
09:53:41 >>GWEN MILLER: Move to close.
09:53:42 >>CHARLIE MIRANDA: Second.
09:53:46 (Motion carried).
09:53:47 >>THOMAS SCOTT: Okay.
09:53:51 Councilman Dingfelder, item 48.
09:53:56 >>JOHN DINGFELDER: I'll move the following ordinance
09:53:58 upon second reading, an ordinance repealing ordinance
09:54:04 2000-179 approving proving a special use permit S-2
09:54:07 for alcoholic beverages sales, large venue and making
09:54:11 lawful the sale of beverages regardless of alcoholic
09:54:13 content beer, wine and liquor 4(COP-X) for consumption
09:54:17 on premises only at or from that certain lot, plot or
09:54:20 tract of land located at 1600 east 8th Avenue unit
09:54:23 A-200, Tampa, Florida as more particularly described
09:54:26 in section 3 hereof approving waivers as set forth
09:54:30 herein, waiving certain restrictions as to distance
09:54:33 based upon certain findings, imposing certain
09:54:36 conditions, providing for repeal of all ordinances in
09:54:39 conflict, providing an effective date.
09:54:40 >>LINDA SAUL-SENA: Second.
09:54:42 >>THOMAS SCOTT: Record your vote.
09:54:46 >>THE CLERK: Motion carried with Mulhern being absent.
09:54:50 >>THOMAS SCOTT: Item 49.
09:54:52 Anyone here wishing to address council on item 49?
09:54:55 Item 49?
09:54:56 Anyone wish to address council on item 49?
09:54:59 >>CHARLIE MIRANDA: Move to close.
09:55:03 >>CHAIRMAN: Move to close.
09:55:03 (Motion carried).
09:55:06 >>CHARLIE MIRANDA: Mr. Chairman, I move an ordinance
09:55:08 presented for second reading and adoption, an
09:55:10 ordinance approving a special use permit S-2 for
09:55:13 alcoholic beverage sales, small venue and making
09:55:16 lawful the sale of beverages containing alcohol by
09:55:19 more than 1% by weight and not more than 14% by weight
09:55:22 and wines regardless of alcoholic content, beer and
09:55:25 wine, 2(APS), in sealed containers for consumption off
09:55:29 premises only at or from that certain lot, plot or
09:55:32 tract of land located at 723 west Columbus drive and
09:55:36 more particularly -- Tampa, Florida, and more
09:55:38 particularly described in section 2 hereof approving
09:55:41 waivers as set forth herein, waiving certain
09:55:44 restrictions as to distance based upon certain
09:55:47 findings, providing for repeal of all ordinances in
09:55:50 conflict, providing an effective date.
09:55:53 >>THOMAS SCOTT: Seconded by councilman Dingfelder.
09:55:55 Record your vote, please.
09:55:57 >>THE CLERK: Motion carried with Mulhern being absent.
09:56:05 >>THOMAS SCOTT: Item 50.
09:56:06 Anyone wishing to address council on item 50?
09:56:11 >>CHARLIE MIRANDA: Move to close.
09:56:13 >>LINDA SAUL-SENA: Second.
09:56:13 (Motion carried).
09:56:14 >>GWEN MILLER: I move to adopt the following ordinance
09:56:17 upon second reading, an ordinance rezoning property in
09:56:20 the general vicinity of 1405, 1407 SEWAHA street in
09:56:26 the city of Tampa, Florida and more particularly
09:56:28 described in section 1 from zoning district
09:56:30 classifications RS-50 residential single-family to
09:56:33 RM-18 residential multifamily providing an effective
09:56:36 >>THOMAS SCOTT: Moved and seconded by councilman
09:56:40 Record your vote.
09:56:43 >>THE CLERK: Motion carried with Mulhern being absent.
09:56:48 >>THOMAS SCOTT: Item 51.
09:56:49 Item 51.
09:56:50 Anyone wishing to address council on item 51?
09:56:54 >>GWEN MILLER: Move to close.
09:56:55 >> Second.
09:56:55 (Motion carried).
09:56:59 >>LINDA SAUL-SENA: I would like to move the following
09:57:01 ordinance for second reading and adoption, an
09:57:03 ordinance rezoning property in the general vicinity of
09:57:06 2711 west Columbus drive, in the city of Tampa,
09:57:08 Florida, and more particularly described in section 1
09:57:11 from zoning district classifications RS-50 residential
09:57:14 single-family, to PD, planned development, business,
09:57:17 professional medical office, clinic, pharmacy, retail
09:57:21 or personal service uses, providing an effective date.
09:57:23 >>THOMAS SCOTT: Moved and seconded.
09:57:25 Record your vote.
09:57:32 >>THE CLERK: Motion carried with Mulhern being absent.
09:57:35 >>THOMAS SCOTT: Item 52.
09:57:37 Anyone wish to address council on item 352?
09:57:40 >>GWEN MILLER: Move to close.
09:57:42 >>LINDA SAUL-SENA: Second.
09:57:42 (Motion carried).
09:57:44 >>JOSEPH P. CAETANO: An ordinance being presented for
09:57:49 second reading and adoption, an ordinance rezoning
09:57:51 property in the general vicinity of 311 and 313 South
09:57:54 MacDill Avenue in the city of Tampa, Florida and more
09:57:56 particularly described in section 1 from zoning
09:57:58 district classifications RS-60 residential
09:58:01 single-family to PD planned development, office,
09:58:04 business, professional and medical, providing an
09:58:07 effective date.
09:58:08 >> Seconded by councilman Miranda.
09:58:10 Record your vote.
09:58:16 >>THE CLERK: Motion carried with Mulhern being absent.
09:58:20 >>THOMAS SCOTT: Can we go back to item 8?
09:58:25 Councilwoman Saul-Sena, the clerk seems to think that
09:58:28 was not included in your motion.
09:58:30 Item 8.
09:58:30 >>LINDA SAUL-SENA: I didn't move item 8 because we
09:58:32 were going to discuss it.
09:58:33 >>THOMAS SCOTT: We put it back on the regular agenda.
09:58:38 >>LINDA SAUL-SENA: I'm sorry.
09:58:39 Then we would like to move item 8.
09:58:41 >>JOHN DINGFELDER: Second.
09:58:43 (Motion carried).
09:58:45 >>CHARLIE MIRANDA: Mrs. Saul-Sena, the reason for that
09:58:47 the chairman doing such a good job that we are one
09:58:49 minute ahead of the time, so we have to kill some
09:58:53 Item 353.
09:58:54 So by you bringing it up we are going to make up that
09:58:57 one minute.
09:58:58 [ Laughter ]
09:59:02 >>JOHN DINGFELDER: Stalling.
09:59:12 >>LINDA SAUL-SENA: I wonder if we are going to be able
09:59:13 to look at the item 59 regarding the status report on
09:59:16 protecting historic structures a little earlier today.
09:59:20 I have written a memo to that effect.
09:59:21 >>THOMAS SCOTT: Yes, you requested 10:15, right?
09:59:25 >>LINDA SAUL-SENA: Is that possible?
09:59:26 >> Yes, if we can get staff here that would be fine.
09:59:28 >>LINDA SAUL-SENA: Since we are doing so well maybe we
09:59:32 can have the staff come up 10:10.
09:59:35 If they can't I will just put in two cents about it.
09:59:38 >>THOMAS SCOTT: I would suggest they probably come
09:59:42 earlier because we have a then staff reports so we are
09:59:45 way ahead of schedule today.
09:59:46 We have a 10:00.
09:59:47 That shouldn't take long as I understand it.
09:59:52 So if staff can come early we will move up our staff
09:59:55 reports today.
09:59:56 >>JOHN DINGFELDER: It's 10:00 on that clock,
10:00:06 Mr. Chairman.
10:00:06 >>THOMAS SCOTT: It's 10:00.
10:00:10 Item 53.
10:00:19 A public hearing we need to open.
10:00:20 >> So moved.
10:00:21 >> Second.
10:00:21 (Motion carried).
10:00:22 >>THOMAS SCOTT: Anyone here speaking to council on
10:00:28 item 53, you need to be sworn at this time.
10:00:30 Stand and be sworn.
10:00:32 (Oath administered by Clerk).
10:00:42 >>ERIC COTTON: Land Development Coordination. This is
10:00:44 for VO 9-321 for property at 18001 Highwood preserve,
10:00:54 the old Bennigans.
10:00:56 They are requesting two waivers for the minimum
10:00:57 separation distance for places to sell alcohol and for
10:01:01 residential uses.
10:01:05 The property previously had a wet zoning and went dry
10:01:09 October 2008.
10:01:10 And just so you know -- here's a couple of pictures.
10:01:29 The DRC found the request to be consistent.
10:01:36 Thank you.
10:01:41 >>THOMAS SCOTT: Officer Miller.
10:01:44 >>>Overs Don Miller, city much the police department.
10:01:47 City of Tampa police department has no objection to
10:01:49 this special use 2 permit.
10:01:51 Thank you.
10:01:59 Anyone here wishing to address council?
10:02:01 >>> Roy Allen from the law firm of Carlton Fields,
10:02:06 representing applicant in this matter.
10:02:09 As Chairman Scott has said before I will be very brief
10:02:14 an not take too much time.
10:02:16 I would like to thank staff for moving this through so
10:02:19 This is the old Bennigan's site.
10:02:21 It's going to be now a TGI Fridays.
10:02:25 They are in the process of renovating, my
10:02:29 They are thinking of opening the 29th of this
10:02:31 It will be about 110 employees that they will employ
10:02:34 at this site.
10:02:35 And so we are urging to move forward.
10:02:40 I believe the second reading, I can see Mrs. Saul-Sena
10:02:42 is looking, the second reading is the 25th.
10:02:47 So it is very quick and that's why we would like to
10:02:50 thank staff and council for helping us move this
10:02:52 And I can answer any questions that need be.
10:02:55 >>THOMAS SCOTT: Any questions?
10:02:56 >>GWEN MILLER: Move to close.
10:02:58 >>CHARLIE MIRANDA: Second.
10:02:59 (Motion carried).
10:03:00 >>THOMAS SCOTT: Item 353.
10:03:02 >> Mr. Chairman, can we move approval of this?
10:03:10 >>THOMAS SCOTT: Yes.
10:03:12 >>JOSEPH P. CAETANO: They have done a great job and
10:03:14 rehabilitated the whole place.
10:03:15 It looks like it's ready to go.
10:03:16 They have a sign up indicating they are looking for
10:03:20 They will probably need people 24 hours a day because
10:03:23 they are all looking for jobs.
10:03:24 An ordinance approving special permit S-2 allowing
10:03:28 alcohol sales large venue making lawful the sale of
10:03:31 beverages containing alcohol regardless of alcohol
10:03:33 content beer, wine and liquor, 4(COP-R) for
10:03:36 consumption on the premises only in connection with a
10:03:39 restaurant business establishment at or from that
10:03:42 certain lot, plot or tract of land located at 18001
10:03:46 Highwood preserve parkway, Tampa, Florida as more
10:03:50 particularly described in section 2 hereof approving
10:03:52 waivers as set forth herein waiving certain
10:03:54 restrictions as to distance based upon certain
10:03:57 findings, providing repeal of all ordinances in
10:04:00 conflict, providing an effective date.
10:04:02 >>THOMAS SCOTT: Seconded by councilman Miranda.
10:04:04 >>JOSEPH P. CAETANO: Can I ask one question?
10:04:08 Of the attorney?
10:04:09 Are they wet zoning the outside area, also?
10:04:11 >>> That's correct.
10:04:12 The outside is included, also.
10:04:15 There will be a small outside bar, is my
10:04:20 >>JOSEPH P. CAETANO: Put a wall there to enclose it so
10:04:22 it won't be visible from people walking around.
10:04:25 >>THOMAS SCOTT: Moved and seconded.
10:04:27 All in favor signify by saying Aye.
10:04:32 Council, we are taking up staff reports since we are a
10:04:39 little ahead of our schedule.
10:04:40 >>SAL TERRITO: Yes.
10:04:43 They are not a public hearing per se so you can take
10:04:45 them up earlier.
10:04:47 If it's a public hearing with notice --
10:04:50 >>THOMAS SCOTT: I just wanted to make sure.
10:04:53 Let's take up item 59.
10:04:54 That request came in through Councilwoman Saul-Sena.
10:04:56 >>CINDY MILLER: Director growth management development
10:05:05 services here to address item 59 which had identified
10:05:07 a number of structures buildings within the city.
10:05:11 The one request I would make, Mr. Chairman, is we do
10:05:15 also have a code enforcement representative coming to
10:05:18 They were scheduled to be here at 10:15.
10:05:21 I could do my best if you like.
10:05:23 But if there's questions from code enforcement you
10:05:25 might want to wait till 10:15.
10:05:27 >>THOMAS SCOTT: Councilwoman Saul-Sena?
10:05:31 >>LINDA SAUL-SENA: I would like to hear from you and
10:05:32 maybe by the time you are done they will be here.
10:05:36 >>CINDY MILLER: I do have some information for code
10:05:39 If I may for the various items I would basically like
10:05:41 to take each building one by one.
10:05:46 The protecting historic structures, especially in
10:05:49 light of the recent rainfall, they had identified the
10:05:53 Italian club but I believe the motion meant to have
10:05:57 the Sicilian club identified. The Sicilian club on
10:06:00 North Howard has had a site visit earlier this year, a
10:06:03 couple of months ago, did reveal that the interior of
10:06:05 the building is clean and absent of water intrusion.
10:06:09 The ceiling joists appeared to be in sound condition.
10:06:11 There is currently a pending code enforcement special
10:06:16 magistrate hearing scheduled on August 19th.
10:06:19 So they have been making progress to secure the
10:06:21 building and to make improvements to that building.
10:06:23 But it is currently under code enforcement action.
10:06:27 >>LINDA SAUL-SENA: Mr. Chairman?
10:06:29 >> Yes.
10:06:30 >>LINDA SAUL-SENA: There are hearings coming up.
10:06:34 I think several of the buildings we are going to hear
10:06:36 about have hearings scheduled.
10:06:39 Should we create some kind of mechanism to get a
10:06:41 report back on whether the problems have been
10:06:46 addressed at the time of the hearing?
10:06:50 I would like to set up some kind of follow-up loop so
10:06:57 that we are ensured that the problems do get
10:07:00 That's the whole point of doing this, is to try to
10:07:03 encourage the staff to work with the property owner to
10:07:06 make them aware of resources that we can make
10:07:08 available to them, so that they need to keep their
10:07:11 buildings up to code.
10:07:12 >>> And we are certainly doing that.
10:07:15 We would be glad to present a written report.
10:07:17 And that might be the best approach so that we can
10:07:19 submit a memo.
10:07:20 If there's any questions we can appear at a later
10:07:23 But we could submit a memo to council.
10:07:26 Perhaps we can determine when that would be.
10:07:28 Do you want me to go through the rest of the building?
10:07:31 >>LINDA SAUL-SENA: Yes.
10:07:32 >>> Because it's a very consistent situation.
10:07:34 The bellman cigar factory also on North Howard, a
10:07:43 recent visit to the building a couple of days ago,
10:07:45 working on the building particularly the windows.
10:07:48 There is a violation that's to go become the board
10:07:51 magistrate July 15th.
10:07:53 At this point we are seeing significant process.
10:07:56 The macaroni building on, this is a building that's
10:07:59 been under violation for various times over the number
10:08:01 of years.
10:08:03 It has had an observed roof collapse.
10:08:05 In this case the owner is in discussion was the
10:08:07 Italian club.
10:08:08 And they have appeared at the Barrio Latino commission
10:08:11 requesting a 60-day continuance.
10:08:15 So they will be back before the June 16th so we
10:08:19 are hoping there will be progress there.
10:08:21 For the Kress building, this case has been heard
10:08:24 before the Code Enforcement Board in January, and they
10:08:27 have until July 30th, 2009, to remedy various
10:08:33 The cigar factory in Palmetto Beach, the Quera
10:08:42 factory, they are now in compliance, the windows have
10:08:45 been secured.
10:08:46 >>LINDA SAUL-SENA: Is that the --
10:08:47 >>> On 26th street.
10:08:50 And we have a photo that we are very happy to show a
10:08:53 brand new roof.
10:08:54 So if that addresses the questions, perhaps what we
10:08:58 can do is a number of these hearings are in July and
10:09:04 Perhaps we can reply back in writing to approximately
10:09:08 by the end of August.
10:09:09 >>LINDA SAUL-SENA: My concern is this.
10:09:11 The good news is that it's raining virtually every
10:09:14 The bad news is that some of these buildings still
10:09:16 have broken windows where the rain is pouring in, and
10:09:19 they are not getting any younger.
10:09:21 Some of the buildings that are on this list, and I do
10:09:24 believe it's because of council asking you all to go
10:09:26 out and speak to the owners, have recently, very
10:09:30 recently, secured their buildings, which is excellent.
10:09:33 I mean, it would be nice if they got renovated, in
10:09:37 light of the current economic times if they could just
10:09:39 be secure, that's enough to work for.
10:09:41 The concern I have is that between now, the beginning
10:09:44 of June and the middle or end of August, that there's
10:09:48 going to be a lot of rain pouring through broken
10:09:51 And my question for you and legal is, is there
10:09:55 anything we can do in light of these being designated
10:09:58 historic buildings and in light of the fact that they
10:10:00 have had these ongoing code enforcement violations, if
10:10:02 there's some kind of emergency measure where we can
10:10:05 secure the broken windows, if the owners aren't doing
10:10:09 it, and then just put a lien on the property for that,
10:10:13 for the price of that investment in the building's
10:10:17 >>> I will defer to legal for a legal ability to come
10:10:20 onto the property.
10:10:21 And then I would need to address it from a budgetary
10:10:24 issue oh.
10:10:25 >>LINDA SAUL-SENA: Well, the idea would be that we
10:10:27 would receive the money back with a lien on the
10:10:30 >>REBECCA KERT: Legal department.
10:10:31 I think we need an opportunity to look into that and
10:10:34 we would be happy to, if we could have a short amount
10:10:37 of time, report back to you on exactly what our
10:10:39 opportunities would be.
10:10:40 >>LINDA SAUL-SENA: How long would you need?
10:10:42 >>REBECCA KERT: Two weeks.
10:10:44 >>LINDA SAUL-SENA: Two weeks?
10:10:46 That's lightning speed.
10:10:47 I was going to give you till mid July but two weeks
10:10:49 would be great.
10:10:50 Thank you.
10:10:50 The concern I have is that in many of these historic
10:10:54 buildings if they aren't properly secured,
10:10:56 particularly if there are holes in the roof, that they
10:10:58 can be destroyed in a couple of rainy seasons.
10:11:02 We saw that happen unfortunately with the Gary school.
10:11:05 We are educable. We can learn from our mistakes, and
10:11:12 we don't want that to happen with other vulnerable
10:11:12 historic buildings.
10:11:13 If you could report back in two weeks that would be
10:11:15 great. Would that be under staff reports?
10:11:17 >> I would suggest that you move it out further.
10:11:20 The 25th we already have a full agenda.
10:11:22 So move it a little further out.
10:11:24 >>LINDA SAUL-SENA: Mr. Chairman, perhaps -- two weeks
10:11:29 from now is actually the 18th.
10:11:31 So rather than --
10:11:33 There's a workshop on that date.
10:11:35 >>LINDA SAUL-SENA: Well --
10:11:40 >>REBECCA KERT: From the legal department we would be
10:11:43 happy to have some additional time.
10:11:45 I was just trying to be cooperative.
10:11:46 >>LINDA SAUL-SENA: Mr. Chairman, that evening we have
10:11:49 a discussion at 6:00 on the, and maybe -- will you be
10:11:56 there for the zoning meeting in the evening?
10:11:58 >>REBECCA KERT: Yes, I will, but I am not sure if I
10:12:01 will be the one bringing back the report.
10:12:05 >>LINDA SAUL-SENA: Since it's going to be a brief
10:12:07 report perhaps we can have it on the evening of the
10:12:10 >> Is it going to be brief?
10:12:12 >>REBECCA KERT: I believe we could give a brief
10:12:15 presentation, at least as far as what the legal
10:12:18 background would be of the.
10:12:20 >>GWEN MILLER: Can you do a written report?
10:12:23 >>LINDA SAUL-SENA: Perhaps we should just take this
10:12:25 into July because it will require -- we are meeting
10:12:29 The 16th is going to be crazy.
10:12:31 I know that.
10:12:31 Maybe July 30th.
10:12:34 July 30th under staff reports of the
10:12:36 And code enforcement, I see Mr. Slater is here, will
10:12:41 be engaged.
10:12:42 The question is when it's raining, when we have
10:12:44 historic buildings where the rain is coming in, when
10:12:46 the owners have not responded by fixing the broken
10:12:49 windows, could the city go in, secure the windows?
10:12:54 Just secure them against the rains coming in, and
10:12:57 perhaps put a lien on the property?
10:12:59 Thank you.
10:13:06 >> That would be a motion to hear back from legal
10:13:08 department and code enforcement on July 30th under
10:13:12 the 10:30 staff reports, appear in person and discuss
10:13:16 whether we can accomplish it.
10:13:17 And I would love to work with you in advance.
10:13:19 Maybe you could actually be bringing something to us
10:13:21 to give us the structure for accomplishing it.
10:13:26 >>MARY MULHERN: Yes, I agree with Linda that we need
10:13:30 to hear about what our options are for actually
10:13:32 securing them.
10:13:32 And I had a couple of questions.
10:13:34 I think these are for Mr. Slater now that he's here.
10:13:37 But Ms. Miller, if you have the answer that's fine.
10:13:40 I noticed on the agenda description, the item
10:13:43 description, and I don't think I heard about the Kress
10:13:47 I might have just missed that one.
10:13:49 >>> I don't believe that was in the motion.
10:13:53 >>LINDA SAUL-SENA: It was.
10:13:53 And the issue was that they are in violation.
10:13:55 And they have broken windows.
10:14:01 >>> I'm sorry.
10:14:02 Dimension that is currently before the -- it is
10:14:06 currently before the Code Enforcement Board, has been,
10:14:08 and they will be given to July 30th, 2009 to
10:14:10 remedy the violation.
10:14:11 >>MARY MULHERN: These are my questions.
10:14:13 Then the other questionable building on the list for
10:14:17 me, most of them sound like they were coming up to
10:14:19 code, and that is fantastic, and I'm thrilled to hear
10:14:23 But I'm concerned about the Kress building for the
10:14:26 reasons that Linda mentioned, but also the Ferlita
10:14:31 macaroni building a 60 day continuance on a building
10:14:34 whose roof -- I don't know if the roof has totally
10:14:37 The roof is gone.
10:14:40 It reminds me of the situation of the Gary school.
10:14:44 And 60 days of rain, I'm just worried that 60 days is
10:14:49 really kind of too long for a continuance, if we can
10:14:51 get some action before that.
10:14:55 And I also wanted to hear what the -- were you
10:14:59 mentioning the Italian club as a separate building?
10:15:05 Or they are having some negotiation was that?
10:15:09 >>> Looking to acquire the macaroni.
10:15:13 And did feel confident the 60 day extension could be
10:15:18 granted because we had a structural analysis of the
10:15:20 building and my office retained and worked with code
10:15:23 enforcement retained an outside consultant to do an
10:15:26 independent appraisal.
10:15:27 >>MARY MULHERN: So you are comfortable it's going to
10:15:30 be safe for two months.
10:15:31 >>> It is safe based upon the information we received.
10:15:34 And the Barrio Latino also felt comfortable enough to
10:15:38 wait another 60 days.
10:15:39 >> I guess my questions are centered on the decrees
10:15:42 build -- the Kress building which is quite the
10:15:45 landmark that's been deteriorating for a long time.
10:15:49 We have had a chance to watch that happen.
10:15:50 So anything we can do to speed up that process for
10:15:55 They still have a roof?
10:15:57 >>> Jake Slater, code enforcement.
10:16:06 We can give an update on the activity of the Kress
10:16:08 >>> Good morning.
10:16:10 Kevin Amos, code enforcement.
10:16:13 We have a reinspection scheduled for the Kress
10:16:16 building which will actually begin the per diem fine.
10:16:22 >>LINDA SAUL-SENA: May I just interrupt for a moment?
10:16:24 Yesterday I went up in the element building to look
10:16:27 down on the roof and that is the boast way to find out
10:16:30 what's going on.
10:16:33 There's now the ability to do that.
10:16:34 But just a sidewalk view broken windows from Franklin
10:16:42 >>> Yes.
10:16:42 The actual reinspection is scheduled for sometime in
10:16:45 July, if I can find that page.
10:16:48 The Code Enforcement Board actually gave them till
10:16:55 July 30th, I believe it was.
10:17:09 It is July 30th.
10:17:10 Their post board inspection which will begin the per
10:17:13 diem fine.
10:17:14 >>MARY MULHERN: That will begin the fine.
10:17:16 But our question is more about the securing and the
10:17:21 structural situation.
10:17:25 Cindy, has your department, and have you had a
10:17:29 structural analysis of that building as was done for
10:17:33 the macaroni factory?
10:17:36 >>CINDY MILLER: Director growth management growth
10:17:40 It's a different situation because the own her of the
10:17:43 Ferlita macaroni factory has requested demolition.
10:17:46 So therefore we thought it was critical that we have
10:17:48 analysis done of the building.
10:17:51 In the case of the Kress building it would be a
10:17:53 different scenario, that we would not be doing
10:17:56 analysis of the structure because the owner has not
10:17:58 recommended dome oh liquors.
10:18:00 >>MARY MULHERN: But if it's demolition by neglect it
10:18:03 doesn't require -- it just happens.
10:18:06 I think that may be one of the problems that we are
10:18:08 having with enforcement and with securing these
10:18:11 historic structures, is that -- I mean, that is the
10:18:16 If neglect is what causes the deterioration and the
10:18:18 fact that we don't have the process or the ability to
10:18:23 get in there, and secure that.
10:18:27 So to me, we should also be looking at important
10:18:30 buildings, if structurally even if the owner hasn't
10:18:34 requested it, the owner oftentimes wants it to
10:18:36 deteriorate, I don't want to be the one to be
10:18:40 responsible or paying for destroying it, if you can
10:18:42 let the elements do it for you, a lot cheaper.
10:18:44 >>CINDY MILLER: I believe an answer is a two-part
10:18:49 One is we are currently proceeding with a process that
10:18:51 is readily available which is the code enforcement
10:18:54 And Mr. Slater's staff is working with my staff, has
10:18:57 initiated that process and they are ongoing.
10:19:00 I believe the motion that has been made to come back
10:19:02 for whatever other legal remedies there could be would
10:19:05 address the rest of your question.
10:19:07 So we are doing what we can under current process and
10:19:10 code and the rest we have to address --
10:19:13 >>MARY MULHERN: Well, could I have a report from one
10:19:15 of you about how you think the structure is right now
10:19:21 from our staff?
10:19:22 If we are not paying a consultant to look at it, what
10:19:25 does our staff think?
10:19:30 >>> I am happy to bring a report back but we have had
10:19:34 in the works for quite some time a mechanism that will
10:19:37 speed up the enforcement process, and that's a civil
10:19:39 citation expansion, which council has continue add few
10:19:43 times now.
10:19:43 So we were presently scheduled to have that back to
10:19:45 you later this month.
10:19:47 So that is the cool that we had identified and
10:19:51 developed that would allow for expedited enforcement
10:19:53 on these properties.
10:19:54 >>MARY MULHERN: Right.
10:19:56 But because this is a crisis -- it's not a crisis,
10:19:58 it's a pattern of demolition by neglect of our
10:20:03 historic structures.
10:20:06 Waiting is the problem.
10:20:07 So for this particular building, which is a very
10:20:11 important building, I would like to know -- I would
10:20:15 like for someone to give us a report quickly, like two
10:20:20 weeks at the most, on what the structure of that is.
10:20:25 If we are not willing to pay a consultant to do that,
10:20:28 we need to have that from city staff.
10:20:31 So I would like to make a motion that we come back
10:20:33 with a report.
10:20:36 You know, if you don't have the information to give me
10:20:38 today, two weeks I would like to have a report on the
10:20:42 structural security of the Kress building.
10:20:45 >>THOMAS SCOTT: You want a written report?
10:20:48 Our agenda is so heavy already on the 25th.
10:20:50 >>MARY MULHERN: A written report will be fine.
10:20:52 >>CHARLES FLETCHER: You should be aware that we have
10:20:55 done inspections.
10:20:56 Typically it is difficult to get access to buildings
10:20:59 without the owner's consent.
10:21:02 That is a significant issue.
10:21:03 And we have the scheduled reinspection in July.
10:21:06 And we have a matter pending.
10:21:07 So staff certainly can come back and bring you the
10:21:10 information they have.
10:21:11 That may not necessarily in that time frame include
10:21:14 access to the property.
10:21:16 >>MARY MULHERN: So a building is in code violation,
10:21:20 and we can't get access to look at it?
10:21:24 >>CHARLES FLETCHER: We will have to look at that.
10:21:26 But other than times permit by the property owner,
10:21:28 that's typically accurate.
10:21:29 >>MARY MULHERN: Well, I would like to see us make
10:21:32 every effort that we can to look at that.
10:21:35 Even as Linda suggested, going up on a tall building
10:21:37 and looking down at it.
10:21:39 And telephoto lenses.
10:21:42 There's all kinds of visual ways you can do it.
10:21:45 But I also think -- I walk by there a month ago and
10:21:48 there was a piece of metal hanging down from -- some
10:21:53 kind of metal stripping hanging down waiving waving in
10:21:56 the behind off the side of the building, that you can
10:21:58 see with eyes, you know.
10:22:02 >>> A when that is visible we can issue that citation
10:22:09 on the spot.
10:22:10 That is why we have been recommending using that
10:22:12 process for historic structures.
10:22:14 >>MARY MULHERN: Right.
10:22:16 I think that's a great idea.
10:22:18 But I think when we have these kind of crises, which
10:22:22 we have identified now, not it's not a crisis because
10:22:24 it's been going on forever -- or it is a crisis
10:22:27 because it's been going on for a long time and we
10:22:30 haven't attended to it, let's do everything we can
10:22:32 right now.
10:22:33 So that was a motion.
10:22:35 >>THOMAS SCOTT: We have a motion on the floor already.
10:22:37 >>MARY MULHERN: Oh, we do?
10:22:38 >> Yes.
10:22:39 There's a motion made by Councilwoman Saul-Sena.
10:22:47 >>MARY MULHERN: Her motion was --
10:22:49 Come back July 30th.
10:22:51 >>MARY MULHERN: So my motion is separate.
10:22:54 >>THOMAS SCOTT: She didn't get a second.
10:22:56 >>MARY MULHERN: I'll second her motion if I can do
10:23:00 >>THOMAS SCOTT: She's not here now.
10:23:04 She didn't get a second.
10:23:05 The motion dies of the.
10:23:07 >>MARY MULHERN: Let me make a motion for a written
10:23:09 report on the structural soundness of the Kress
10:23:15 >> Second.
10:23:15 >>THOMAS SCOTT: Moved and seconded.
10:23:18 All in favor say Aye.
10:23:20 >>MARY MULHERN: And I will restate Ms. Saul-Sena's
10:23:26 motion that we have a report in 30 days, 60 days?
10:23:31 >> I think July 30th.
10:23:33 >>MARY MULHERN: Okay, on July 30th, for staff to
10:23:36 report on -- what was it?
10:23:40 Specifically I don't remember what she was --
10:23:47 >> (off microphone).
10:23:56 >> So a report from staff on July 30th on whether
10:23:59 the city can secure windows to protect against the
10:24:01 rainy seasons.
10:24:04 >> Moved and seconded.
10:24:05 All in favor signify by saying Aye.
10:24:12 >>CINDY MILLER: If I may ask council, I also have item
10:24:15 60, if we can take that up at this time.
10:24:17 >>THOMAS SCOTT: Is that your last item?
10:24:22 >>CINDY MILLER: To provide a report providing the work
10:24:24 being done on sewage structures in the Palmetto Beach
10:24:27 historic district A.memo has been submitted to council
10:24:30 in advance as part of your agenda.
10:24:32 Basically, there has been analysis of eligible
10:24:36 And through the work that FDOT and its consultants
10:24:39 have done, there is a national register of historic
10:24:41 places, national register designation that is being
10:24:46 This will be submitted through a formal nomination
10:24:49 from the Historic Preservation Commission.
10:24:51 And the benefit of this is should this be authorized
10:24:55 for the national register, this will give property
10:24:59 owners access to tax credits and grants and serve as
10:25:02 an incentive for preservation of historic purposes so
10:25:05 I think it's a very complete memo done by staff and
10:25:08 ask that you receive and file it.
10:25:09 >>THOMAS SCOTT: Any other questions?
10:25:13 Councilman Dingfelder.
10:25:15 >>JOHN DINGFELDER: Cindy, I saw the memo.
10:25:18 I don't remember the details exactly.
10:25:20 What is the time line on that process?
10:25:28 I was in touch recently with the neighborhood
10:25:30 president down there, and she said she wasn't
10:25:34 completely up to speed so-so we need to --
10:25:39 >>> Ron Villa, staff.
10:25:42 After the state does their preliminary review then
10:25:44 they will forward it to the city.
10:25:45 Once the city receives it, for the historic
10:25:50 commission, then they are reviewed --
10:25:54 >> Geographically, how big an area would that be?
10:25:55 Would that be all of Palmetto Beach or just the north
10:25:58 >>> I have a map if you would like for me to put it on
10:26:01 the Elmo.
10:26:18 >>> A draft version. On the northern boundary.
10:26:21 On the southern boundary.
10:26:23 To the east.
10:26:26 22nd street.
10:26:27 And then you have 26th street.
10:26:30 To the east.
10:26:32 So the outline is here.
10:26:35 Kind of hard to read.
10:26:36 But this is a draft version, this portion here.
10:26:41 >> What would be a parallel process that we have done
10:26:46 in the city?
10:26:48 Is this how we started with Hyde Park, or years and
10:26:51 years ago?
10:26:52 >>> The district that came through with Tampa Heights,
10:26:55 and this is a preliminary review to see if it has
10:26:58 enough fabric.
10:26:59 And then going to the next level.
10:27:02 >> I think it's real exciting for Palmetto Beach areas
10:27:07 struggled for many years.
10:27:08 But clearly when you drive around there are some nice
10:27:11 historic homes there, and businesses as well.
10:27:14 Thank you.
10:27:19 >>MARY MULHERN: I move to receive and file the report.
10:27:21 >> Second.
10:27:22 (Motion carried).
10:27:25 >>THOMAS SCOTT: Do you have any other reports?
10:27:27 We go back to item 54, I believe.
10:27:34 >>BONNIE WISE: Director of revenued and finance.
10:27:36 I'm here on item number 54.
10:27:38 As you recall at your last week's council meeting you
10:27:40 approved a little over a million dollars regarding the
10:27:44 CDBG program and a question came up whether that some
10:27:49 of that money would be eligible in the friendship
10:27:51 park, for friendship park.
10:27:52 And in addition to the regular CDBG criteria, CDBGR
10:27:59 has six other criteria that moneys must be met.
10:28:02 However friendship park does not meet the CDBG
10:28:06 And Mrs. Saul-Sena made this motion.
10:28:08 And I have spoken to her about this.
10:28:10 The criteria is that it must meet 51% or higher, low
10:28:15 to moderate residents.
10:28:17 This area is just under 15%.
10:28:20 It is possible that it could meet one of the other
10:28:22 CDBG criteria of which friendship park does not meet
10:28:26 either of the dry criteria.
10:28:28 I just wanted to report back to you that friendship
10:28:30 park is not an eligible park for this be particular
10:28:36 >>MARY MULHERN: I just had a quick clarification
10:28:39 So there's five criteria you have to meet?
10:28:44 >>> Just to be eligible for CDBG it has to be one of
10:28:48 And then further for CDBGR, there are six criteria.
10:28:54 So it doesn't even make --
10:28:56 >> It doesn't make the first one.
10:28:57 >>BONNIE WISE: Thank you.
10:28:59 >>THOMAS SCOTT: Item 55, the noise ordinance.
10:29:12 Item 55 on the noise ordinance.
10:29:14 Mr. Fletcher?
10:29:15 I think Mr. Fletcher is going to introduce this.
10:29:19 >>CHARLES FLETCHER: Essentially, we looked at the soft
10:29:22 letter program, which is what was identified
10:29:27 And from my perspective that's not really a legal
10:29:31 It's primarily an issue of law enforcement and
10:29:36 effectiveness and use of resources.
10:29:38 So I have asked a representative from the police
10:29:40 department be here today.
10:29:42 From the comments this morning, there are a couple
10:29:44 things I want to clarify before we get into the
10:29:48 discussion on the item.
10:29:50 One is that there's a difference between stationery
10:29:53 sources and mobile sourcings which are the vehicles.
10:29:55 And that's what we have been looking at and that's
10:29:57 what this soft letter program addresses.
10:30:00 We have got another code provision that deals with
10:30:04 stationery sources.
10:30:06 That's not what we prepared here today.
10:30:09 The other thing I'll mention is there was some
10:30:12 discussion of impoundment of vehicles and fines
10:30:16 associated with it.
10:30:17 What we have looked at as far as I'm aware of is
10:30:20 nothing beyond the soft letter program and enforcing
10:30:22 the state law that's in place, the cities that have
10:30:26 been impounding vehicles due to noise issues had a lot
10:30:30 of legal challenges and we would not recommend going
10:30:32 that direction at this point.
10:30:33 We have not looked at it for the response to that.
10:30:39 >>THOMAS SCOTT: But from a legal standpoint, from a
10:30:40 legal standpoint, you see no other problematic with
10:30:44 the ordinance, is what I heard you say, the problem is
10:30:50 >> And that's why I recommended the police
10:30:57 department --
10:30:58 I just wanted to clarify that.
10:30:59 >>CHARLES FLETCHER: I don't want to say there's no
10:31:01 issues with it but I don't see any problems with doing
10:31:04 fountain we do it correctly.
10:31:05 >>JOHN DINGFELDER: Question, Mr. Fletcher.
10:31:10 Chip, I'm a little confused on this soft letter issue,
10:31:13 because the way it was described by somebody from the
10:31:16 audience, they said, you know, that a community member
10:31:21 would make the complaint, and then a letter would be
10:31:25 issued, and then the next time a person is caught or
10:31:31 referred or what have you, they get a ticket.
10:31:32 >>> That's the part of it that I have a concern with
10:31:35 and that's not something we looked at.
10:31:37 >>JOHN DINGFELDER: I would have a big concern, because
10:31:41 is the original complaint considered a sworn
10:31:43 affidavit, or how do you verify, et cetera, et cetera?
10:31:48 I'm all in favor of making an ordinance as harsh as
10:31:51 possible to crack down on this vehicle noise problem.
10:31:55 I'm just not sure that legally that's a great way to
10:31:58 >>CHARLES FLETCHER: And I would agree.
10:32:01 And what we looked at was this issue of citizen
10:32:03 complaints, taken in in various forms, then sending
10:32:07 the warning let letter basically is what I am looking
10:32:12 And that's it.
10:32:13 Now, we have a state statute that we can enforce on.
10:32:17 There are various fines for that.
10:32:21 And I would recommend that we stick with that for the
10:32:23 vehicles at this point.
10:32:25 But for the letters to be a predicate for some other
10:32:30 enforcement action, you are absolutely right, the
10:32:33 evidentiary basis for that would be at issue.
10:32:35 And we would have to create a different type of
10:32:38 complaint process, very different type of complaint
10:32:41 process before these complaints can be a predicate for
10:32:46 enforcement action.
10:32:47 >>THOMAS SCOTT: So if it occurs again, there is a
10:32:50 state statute already that addresses this issue?
10:32:53 >>CHARLES FLETCHER: Well, there's a state statute that
10:32:55 addresses vehicles for creating audible noise greater
10:33:00 than 25 feet, and I suspect the major can speak to how
10:33:05 that's enforced practically.
10:33:06 But that is what's on the books.
10:33:08 That's been upheld.
10:33:09 There's not an enforcement problem that I am aware of
10:33:13 at this point.
10:33:13 And that's what we are enforcing today.
10:33:15 And we continue to enforce.
10:33:18 The additional issue is this letter notifying people
10:33:20 that they are in violation or there's a complaint that
10:33:26 they are in violation of that statute.
10:33:27 >>THOMAS SCOTT: I was trying to distinguish that you
10:33:29 have a state statute already that addresses the noise
10:33:33 But St. Pete goes further with that, requires some
10:33:37 kind of warning letter and all that, which is an
10:33:40 >>CHARLES FLETCHER: That's correct.
10:33:43 >>THOMAS SCOTT: That becomes a resource issue, it
10:33:46 sounds like to me.
10:33:47 So we will hear from the --
10:33:52 >>JOSEPH P. CAETANO: Who would send that letter?
10:33:53 It would be legal?
10:33:54 The police department?
10:33:56 >> We will hear from them.
10:33:57 >>> Major mark Hammond on behalf of the police
10:34:01 We had we had an officer that contacted his
10:34:04 counterpart in St. Petersburg police department, and
10:34:07 their system works a lot like this:
10:34:11 The citizen that observes the loud music coming from a
10:34:13 vehicle would submit an e-mail including the tag, the
10:34:16 vehicle description, location, date, time, and a
10:34:19 description of the driver onto the police department
10:34:22 Web site.
10:34:23 The police department then forwards that information
10:34:25 to the council on neighborhoods association also known
10:34:28 as CONA which I think might be equivalent of our
10:34:31 T.H.A.N. group.
10:34:32 But I'm not certain.
10:34:34 They obtain the registration information through a
10:34:36 program at the Pinellas County sheriff's office known
10:34:38 as TAG talk.
10:34:41 And they forward that information to the appropriate
10:34:44 neighborhood watch group, the location of where the
10:34:46 incident occurred, and the neighborhood watch group in
10:34:50 turn would either address the issue, if they could, or
10:34:53 ask the police department to send a soft letter to the
10:34:57 registered owner of the vehicle.
10:35:00 The police department administrator who handles
10:35:02 sending that letter, St. Pete does, and they also pay
10:35:04 for the postage.
10:35:06 They were getting about five to ten complaints a week
10:35:08 on the e-mail.
10:35:10 And now they are getting upwards around 20.
10:35:13 They are receiving an overwhelming amount of phone
10:35:16 calls where the people are trying to plead their case,
10:35:18 make excuses for why they received the letter, and/or
10:35:21 swearing that it's not their vehicle that the
10:35:25 information is not correct.
10:35:26 We do, as police officers, get information from
10:35:29 witnesses, which is inaccurate, especially tag
10:35:33 They invert the number, the letter M with the letter
10:35:37 W, they invert the letter I with the number 1,
10:35:41 et cetera.
10:35:42 We could see how that could happen very easily.
10:35:44 We are a little concerned about the cost associated
10:35:46 with the letter, postage for one, the administrative
10:35:49 functions, who would pick that up.
10:35:52 As now our civilian personnel, as we call them, was
10:35:55 cut in the last budget time frame, and we are
10:35:59 operating at a bare minimum with support personnel.
10:36:03 St. Pete reports that they don't believe this has had
10:36:05 any effect.
10:36:06 It's only been in effect since March.
10:36:08 They don't believe it's had any positive effect on
10:36:10 reducing the loud music from the vehicles.
10:36:13 We feel that it would be more effective if the citizen
10:36:17 would call us when they actually saw the loud music,
10:36:20 because going back to what Mr. Fletcher said, in order
10:36:23 to enforce the state statute, which is a traffic
10:36:25 citation, a non-moving infraction with a fine of $101,
10:36:30 a police officer has to witness the infraction.
10:36:32 Just like you would have to witness someone running a
10:36:34 red light or making an illegal U-turn.
10:36:36 Now if the citizen doesn't call us and goes right to
10:36:38 the e-mail process the chances of us catching that
10:36:41 violator is zero. If they take the time to call a
10:36:45 non-emergency number and relay that information
10:36:47 especially if it's a stationery vehicle, people parked
10:36:50 out in front of the house where a lot of our
10:36:52 complaints do come from, including moving vehicles, we
10:36:55 might have a chance to actually witness and cite them.
10:37:01 We don't want to take that away because we'll get less
10:37:04 phone calls, we feel.
10:37:05 Car owners typically spend thousands of dollars on
10:37:08 these stereo systems. We find a lot of times the
10:37:10 stereo systems are actually worth more than the cars
10:37:12 themselves and often the stereo system is a very
10:37:16 passionate object to that owner, and I don't think a
10:37:19 letter from the police department is going to stop
10:37:22 that person who spent several thousand dollars on a
10:37:24 stereo from blasting the music.
10:37:26 A couple of $101 fines probably would, though.
10:37:30 And I don't even know if this tag inquiry is
10:37:32 permissible under the Florida crime information
10:37:35 center, the guidelines that we use to get tag
10:37:38 We have to be conducting an investigation in order to
10:37:43 field that information and I'm not very familiar
10:37:44 within the Pinellas County Tag Talk to find out how
10:37:47 these neighborhood groups actually gets that tag
10:37:50 If you have any questions I will be glad.
10:37:52 >>JOHN DINGFELDER: Tell us about the current state of
10:37:57 You know, do you have any sense of how many tickets
10:38:01 TPD issues under the status quo, based upon the state
10:38:07 I mean, clearly, we all pull up to lights, and we all
10:38:11 hear the boom boxes.
10:38:12 I don't know if these type of folks who have them, if
10:38:16 they see an officer they quickly turn it down because
10:38:18 they are afraid of getting that, or do you guys when
10:38:21 you are patrolling hear the same noise but you are too
10:38:25 busy addressing other crimes to pull them over?
10:38:27 >>> The answer is it depends.
10:38:29 I don't have the exact amount of citations.
10:38:31 I know it's one of our regularly enforced traffic
10:38:34 The reason is because the officer know that the
10:38:37 citizens really are upset with the loud music from the
10:38:40 Now, if I was on the way to domestic disturbance, and
10:38:44 I know there was people that were combative and I had
10:38:47 loud music, I would probably ask the person to lower
10:38:50 it and go to the violent call before that, and that's
10:38:53 the discretion we have to use all the time.
10:38:55 But it is a more commonly cited infraction like
10:39:00 speeding laws.
10:39:00 I can't find the statistical -- I could find the
10:39:03 statistical data but I don't have that available.
10:39:06 >> If could you give us a written report.
10:39:08 In looking at our city code 14-147, we address noise,
10:39:12 but we really only address it -- excuse me, 14-151, we
10:39:22 really only address it in buildings and that sort of
10:39:25 We don't specifically address it in vehicles, and
10:39:29 moving as from Fletcher said, moving location.
10:39:32 So I guess what I would like to know also is I'm not
10:39:40 thrilled about this citizen thing.
10:39:42 I think it creates a lot of paperwork and legally I
10:39:44 don't think it's really enforceable or defensible.
10:39:48 You have to see it yourself, just like any other
10:39:50 traffic issue.
10:39:53 But I would like to know if there's anything else we
10:39:55 can put in our code to assist TPD or perhaps let the
10:40:00 officers know that this is a priority for City Council
10:40:03 and for the community as compared to just relaying on
10:40:05 the state law.
10:40:07 You don't have to answer that rate this second if you
10:40:09 don't want to.
10:40:10 >>> Well I'm intimately familiar with the noise
10:40:14 ordinance you are referring to and it only takes into
10:40:16 account property lines, and the 316.3045, the Florida
10:40:21 statute, which prohibits loud music or loud moist
10:40:25 noise from the vehicle that's audible over 25 feet,
10:40:29 handles specifically vehicles.
10:40:30 So I think we have both covered, to be honest with
10:40:33 And a $101 fine is a pretty stiff fine.
10:40:36 You get a cup couple of those you might turn it down.
10:40:40 That's just my personal opinion.
10:40:43 >>THOMAS SCOTT: Well, I think part of the difficulty
10:40:45 is -- and I understand what the citizens are saying --
10:40:48 part of the difficulty is, major, many times the
10:40:52 vehicles are moving.
10:40:53 They are moving slowly through the communities,
10:40:55 through the neighborhood, by the time I call you all,
10:40:57 by the tame you get there, it's gone.
10:41:01 That's the big issue.
10:41:03 And I don't think we have the resources, given the
10:41:09 climate today, to ride around trying to find boom
10:41:12 boxes in vehicles, I guess it is.
10:41:16 So that becomes more the issue.
10:41:18 I mean, you have a Florida statute in place now.
10:41:21 And I guess if you observe it you can ticket them, I
10:41:27 guess what I am hearing you saying.
10:41:29 But these vehicles are driving through the
10:41:32 neighborhoods, slowly, blasting, and if I call you up,
10:41:36 well, the way you are, by the time you goat there,
10:41:39 they are gone.
10:41:40 And I know that according to Mr. Daniels, every time
10:41:45 he has called TPD to come out to his house, and he get
10:41:47 into a heated discussion, you know, I'm just
10:41:52 relaying --
10:41:54 >>> I'm familiar with it.
10:41:55 >> Yes.
10:41:55 So that creates a whole other issue and problem.
10:41:59 So I agree with you, councilman Dingfelder, on the
10:42:02 citizen involvement because that creates a whole other
10:42:04 issue but I don't know what we can do in terms of
10:42:07 strengthening the current statue to help the community
10:42:12 and it's an issue.
10:42:13 I will tell you, I can northbound my church office and
10:42:17 someone can be riding by and my office starts shaking.
10:42:21 And windows start rattling. Really seriously in your
10:42:25 It's an issue.
10:42:38 >> If I may.
10:42:39 If it's a chronic issue in a specific neighborhood,
10:42:43 where the view of your church -- someone who lives
10:42:46 down the street that's constantly doing it, making the
10:42:48 police department aware, you know, in the community
10:42:52 network is what will cause that person to have a
10:42:55 better chance of being ticketed.
10:42:57 If I'm a zone officer where your church is and I know
10:42:59 the kid who lives down the block is blasting his music
10:43:02 every day when he comes home from school, then I can
10:43:04 attack that issue.
10:43:05 And you're right about pulling up to a red light and
10:43:08 things like that.
10:43:09 But I think what this is more concentrating on is the
10:43:12 specific neighborhoods like you referenced Mr.
10:43:15 Mr. Daniels will tell police which neighbors.
10:43:18 And I worked in that neighborhood for several years
10:43:19 and I worked with Mr. Daniels and I know plenty of
10:43:22 people were cite and arrested for various crimes
10:43:25 because Mr. Daniels gave us the information.
10:43:27 There is a patience factor because it is random.
10:43:29 You are possibly right, I might not be able to get
10:43:32 there at 3:00 today when that person drives home
10:43:34 because I may be on another call, et cetera.
10:43:36 But I think if we don't get the phone calls, the
10:43:39 officers won't know it.
10:43:41 If they are still going through their neighborhood
10:43:43 watch groups -- and I know we have a great
10:43:46 relationship with the community through those
10:43:47 neighborhood watch groups -- and they give us the
10:43:49 specific challenges that they have in their
10:43:51 neighborhood with loud music from vehicles, the
10:43:53 enforcement chances are going to be greater.
10:43:56 >>THOMAS SCOTT: Councilwoman Miller, then councilman
10:43:59 >>GWEN MILLER: My question is, if a citizen calls in a
10:44:02 tag number and description of the car and what kind of
10:44:06 expense would there be to the officer?
10:44:08 You say it would be very expensive?
10:44:12 An a description of the car.
10:44:13 >>> Through the soft letter program?
10:44:15 >> Yes.
10:44:15 What kind of letter?
10:44:17 >>> There's going to have to be a person assigned
10:44:20 administratively to take in those messages.
10:44:21 That person is going to have to filter through the
10:44:23 message, forward it, be if we do it the same way
10:44:26 St. Pete does, if we just write a letter off the tag
10:44:30 someone will have to get that letter typed up even
10:44:32 though it will probably be a form letter, the
10:44:34 addresses and stuff will be different.
10:44:37 We'll have to see if the tag comes back to a proper
10:44:39 address, if it's a proper registration.
10:44:41 So if the tag number is given differently, then the
10:44:44 vehicle description, you know, we might have the wrong
10:44:47 tag number, et cetera.
10:44:48 So those are some of the administrative things I think
10:44:50 you are going to be filtered through and that's going
10:44:54 to take staff time.
10:44:55 Then you go through the postage and you have monetary
10:45:00 >>GWEN MILLER: If the citizens call you and say come
10:45:03 out, and the car is gone, and they give you a
10:45:05 description, then can you put that on record so when
10:45:08 they come back again?
10:45:09 >>> Oh, absolutely.
10:45:10 Any details that are given in a call are -- if you
10:45:15 call up and say there's a red bike Buick in front of
10:45:18 my house and this is the plate number, that will be in
10:45:21 the history of the call, so that location will have
10:45:22 that history.
10:45:23 That's all documented in the computer system.
10:45:27 >> And if you see that car you can ticket them then?
10:45:31 >>> No, unfortunately the state statute says you have
10:45:34 to witness the violation.
10:45:35 So if you call me on Tuesday and I saw the car
10:45:38 Thursday and they didn't have the loud music blasting,
10:45:42 I couldn't cite them for Tuesday.
10:45:45 But it might give us the idea that this person might
10:45:53 be a habitual violator, that people are calling about
10:45:57 the same people.
10:45:59 >>CHARLIE MIRANDA: I want to thank you, major.
10:46:00 I think the approach that you mention is a very good
10:46:05 Networking with the crime watch and the neighborhood
10:46:08 organizations, and the district that we divided the
10:46:12 city into one, two and three, you certainly have more
10:46:15 than one patrol car at all times moving around.
10:46:17 So even if you were going somewhere and you heard the
10:46:20 loud music, could you always radio that such and such
10:46:23 is happening, and it would go throughout that whole
10:46:26 system where they would hear it.
10:46:27 So the chances of that happening and catching them on
10:46:30 the same day are kind of high, I would imagine.
10:46:34 Usually they are not really speeding because they love
10:46:38 that loud music.
10:46:40 They are enjoying themselves and combing their hair,
10:46:43 eating their lunch, and taking a break at the same
10:46:45 time they are driving the car.
10:46:48 So I think it's something that's being addressed.
10:46:53 I know there's concern.
10:46:55 We heard about it not only this morning but I think I
10:46:57 can say that all council members have had that next to
10:47:03 I was driving down MLK and next to me was a boom boxer
10:47:07 and he looked at me and I looked at him and he's got
10:47:10 more in his boom box and his rims than I got in my
10:47:15 So I understand what you are saying.
10:47:16 And I think you are addressing it in the proper
10:47:19 I think the letters are fine, in a way.
10:47:21 But in another way, administratively, it's getting
10:47:26 harder to do those things.
10:47:27 And once it becomes public record, those same
10:47:29 individuals can retaliate against those that send the
10:47:33 And I hate to put that the way, but who knows what can
10:47:38 >>THOMAS SCOTT: Let me just raise one other question
10:47:41 with you.
10:47:44 How long now where calls are coming in relative to
10:47:51 these boom boxes, specifically what areas, are they in
10:47:55 certain areas of the city, certain areas of the city?
10:47:59 >>> Yes.
10:48:00 They get a specific label.
10:48:02 It would be a disturbance/loud music.
10:48:04 So we could filter through all the calls and tell you
10:48:07 where those loud music calls are coming from, if
10:48:10 that's what you are asking.
10:48:11 >> Yes.
10:48:12 And I guess it was specifically specific.
10:48:14 Are there more calls in East Tampa versus South Tampa
10:48:16 relative to the loud noise?
10:48:19 >>> Without knowing the statistical data,
10:48:22 Mr. Chairman, I am going to say no, because this is a
10:48:24 city-wide, countywide, this is a generational issue.
10:48:28 And this isn't a cultural issue.
10:48:31 It's 93 degrees out.
10:48:32 People have all their windows down because they want
10:48:35 you to hear that loud music.
10:48:36 So I don't think there's going to be any discrepancy
10:48:38 in neighborhoods.
10:48:39 The only people that might have more calls are the
10:48:41 people that are more involved in the neighborhood
10:48:43 calling us more often.
10:48:44 But I venture to guess that the ratio of incidents is
10:48:47 the same city-wide.
10:48:48 Because we get complaints throughout the city.
10:48:50 You know, you only complain about robbery if you get
10:48:53 You only complain about burglary if your house or
10:48:57 business gets burglarize.
10:48:59 But they speed about speeding, drug dealers and loud
10:49:03 miss I can where you aren't necessarily the victim of
10:49:06 a crime.
10:49:06 It's very common.
10:49:08 >>JOHN DINGFELDER: I think we are all in agreement on
10:49:15 this. I look forward to receiving the written report
10:49:16 in terms of number of citations perhaps over the last
10:49:19 year that have been issued.
10:49:21 But I don't want citizens to think that we are just
10:49:23 sort of listening, talking and not doing anything.
10:49:27 And so with that, I would like to request or make a
10:49:34 motion that the chairman draft a very -- and maybe
10:49:40 when Mr. Shelby gets back -- draft a very mild letter
10:49:44 to the chief from all of City Council, just urging him
10:49:49 to recognize that council sees this as a problem, they
10:49:54 see this as a quality of life issue in our community,
10:49:57 and we urge him to do whatever we can within the
10:50:00 constraints of budget and time to step up and enforce.
10:50:06 >>CHARLIE MIRANDA: Second.
10:50:07 >>THOMAS SCOTT: We made a motion earlier that we would
10:50:09 take no action on this item for 630 days with Ms.
10:50:13 Saul-Sena back.
10:50:14 >>JOHN DINGFELDER: This isn't much in the way of
10:50:18 I don't think she would have any problem.
10:50:19 >>THOMAS SCOTT: I just want to call that to your
10:50:21 >>JOHN DINGFELDER: Yes, sir.
10:50:23 >>THOMAS SCOTT: Moved and seconded.
10:50:24 All in favor say Aye.
10:50:26 >>SAL TERRITO: If you want to set a time and date for
10:50:32 60 days.
10:50:35 >>THOMAS SCOTT: Come back under staff reports, I
10:50:38 >>JOHN DINGFELDER: And I'm assured sure TPD will take
10:50:42 it in the way it's intended.
10:50:44 I think we are all in this together and we just want
10:50:46 to work on it together and encourage you all to do
10:50:49 whatever you can.
10:50:51 >>THOMAS SCOTT: Let me also ask Mr. Fletcher or the
10:50:55 major, did you all look at Sarasota?
10:50:58 I understand Sarasota has this and other
10:51:00 Did you all see what they have and compare it with
10:51:03 St. Pete?
10:51:04 >>> I am personally not familiar.
10:51:11 >>CHARLES FLETCHER: I did not actual pull the Sarasota
10:51:15 I can do that.
10:51:15 I do know they are in litigation over the
10:51:21 I don't know if it's limited specifically to loud I,
10:51:25 very or if their entire impoundment program.
10:51:28 Some of you may recall the City of Tampa was in
10:51:30 litigation over its vehicle impoundment program a
10:51:33 number of years ago.
10:51:34 But I will look at that more closely and report back
10:51:36 to you, if you like.
10:51:37 >>THOMAS SCOTT: Could do you that?
10:51:40 Then when we get a report back in 60 days, August
10:51:43 6th staff report, you can bring that back at that
10:51:48 We made a motion to include that report back to us in
10:51:51 60 days.
10:51:52 I would like to add now that it come back under staff
10:51:58 So you have that.
10:52:01 Thank you.
10:52:01 It's not a public hearing, sir.
10:52:03 It's not a public hearing.
10:52:07 FROM THE FLOOR: Public comment.
10:52:08 >>THOMAS SCOTT: No, sir.
10:52:09 You can speak at the end of the meeting this afternoon
10:52:11 you may comment.
10:52:16 Item 57.
10:52:30 Well, let me raise a question.
10:52:33 The two people who requested this are not here.
10:52:38 >>CHAIRMAN: Mr. Dingfelder is here.
10:52:39 >>JOHN DINGFELDER: I didn't request it.
10:52:40 >>THOMAS SCOTT: Saul-Sena and Mulhern.
10:52:42 And this is -- anyway, do you want to go ahead, from
10:52:49 Mr. Fletcher, then you can decide.
10:52:51 They are not here.
10:52:52 So I was wondering if you want to hold it, but go
10:52:52 ahead. Yes.
10:52:54 >>CHARLES FLETCHER: This is an issue that we reported
10:52:57 back on previously.
10:53:00 About you requiring that all vendors are compliant
10:53:03 with city code, or if they are not compliant with city
10:53:06 code to be barred from doing business with the city.
10:53:10 We looked at that type of a broad standard is not
10:53:14 It appears that based on general reading of case law
10:53:19 and how Miami-Dade county responded to the litigation,
10:53:22 in the case that we did see, it may be possible to
10:53:26 narrowly tailor code compliance requirements with the
10:53:29 type of work the vendor would be doing with the city,
10:53:32 and that's what we are here to report back on today to
10:53:36 let you know that we did find it maybe possible to do
10:53:39 something that I would say narrow after full
10:53:43 adjudication of the claims and full adjudication of
10:53:48 Debarment would have to come before council or another
10:53:51 board that we would create to handle that kind of
10:53:54 process, and it's a quasi-judicial process typically.
10:54:00 >>JOHN DINGFELDER: In light of their absence, at this
10:54:02 moment, why don't I suggest that Mr. Fletcher just put
10:54:06 that in a very, very brief memo, maybe attach the
10:54:09 case, and say that, you know, if council wants to
10:54:12 pursue this further, council members can bring it up
10:54:15 at a later date.
10:54:16 >>THOMAS SCOTT: Is that a motion?
10:54:19 >>JOHN DINGFELDER: That would be my motion.
10:54:20 >>CHAIRMAN: Second.
10:54:21 >>THOMAS SCOTT: All in favor signify by saying Aye.
10:54:27 Item 61.
10:54:38 >> I'm grace putterman, president and CEO of seniors
10:54:43 in service, a non-profit organization.
10:54:46 I'm here today to on behalf of our Board of Directors,
10:54:49 our volunteers, myself, to thank the city for their
10:54:53 support over the past 15 of our 25 years.
10:54:57 Over these 25 years, our volunteers have provided over
10:55:02 4 million hours of service to this community.
10:55:04 Most of our volunteers, 90% of them are senior
10:55:07 citizens themselves, who participate in our foster
10:55:11 grandparent program and senior companion program.
10:55:13 Now, the purpose of the organization is to recruit,
10:55:18 train and match these volunteers to help children
10:55:21 succeed and the elderly remain independent.
10:55:25 Over these 15 years, City Council has been very
10:55:27 supportive of our initiative to help elderly remain in
10:55:33 their homes independently, instead of being sometimes
10:55:38 prematurely relocated to a more restricted
10:55:41 It's through the city CDBG funding that seniors in
10:55:47 service receive this money for our senior companion
10:55:50 program, and just to let you know some of the things
10:55:53 that we have done with that $300,000, over those 15
10:55:57 years is that that has provided over 120,000 hours of
10:56:01 service to residents out at the J.L. Young.
10:56:06 Right now at J.L. Young we have 14 volunteers who are
10:56:10 serving 19 elderly clients.
10:56:12 Now, our service is done by a volunteer at the senior
10:56:15 companion program who goes in, and it's hands off,
10:56:20 it's not medical or hands-on care, but our people go
10:56:23 in, they will do food shopping for the seniors, for
10:56:26 the elderly clients, they will do some minor
10:56:31 housekeeping, cook a meal, go out and do some food
10:56:34 shopping, and we have a huge contingency of clients
10:56:38 and volunteers who speak Spanish as their first
10:56:42 language, and who then the volunteers speak English
10:56:48 very well, but they can do some of the translation
10:56:52 Our jot come reports that we do annually show that in
10:56:57 the case of helping elderly remain independent in
10:56:59 their homes and a quality of life, that 97% of all of
10:57:03 those elderly clients that we serve are very
10:57:07 satisfied, and they believe that the senior companions
10:57:11 do provide a real quality of life.
10:57:14 And the referring agencies that we use to identify the
10:57:20 elderly who need the service -- and that would be
10:57:24 community care for the elderly, Hospice, veterans
10:57:27 hospital, is that without our services, the people we
10:57:31 serve would not receive any other services, because
10:57:36 they themselves at this point are not nursing home
10:57:41 material, but without our intervention to making sure
10:57:45 that they are getting their nutrition, because we do
10:57:48 the food shopping, we provide the socialization, which
10:57:51 we do have a sense of despair and loneliness that
10:57:56 people feel when they are isolated and they don't see
10:57:58 anybody for days, that our care helps reduce premature
10:58:04 and the intervention of people having to go into
10:58:06 nursing homes.
10:58:08 Now, you haven't fund another one of our initiatives
10:58:11 but I wanted you to know about it.
10:58:12 It's called operation Spic 'n Span.
10:58:16 In the senior HUD buildings that are throughout the
10:58:18 city, the elderly who live there will be evicted if
10:58:25 they cannot keep their apartments clean, and that is a
10:58:28 HUD rule.
10:58:30 So we identified that a couple of years ago with
10:58:33 something we really wanted to get involved in.
10:58:35 So in this past year, we have mobilized 300 other
10:58:41 community volunteers, some from church groups, some
10:58:45 from employment groups, United Way day of caring,
10:58:49 et cetera, and they have cleaned in this year over 200
10:58:54 apartments in five of the city senior high-rises.
10:58:58 And that is of little cost to us because people are
10:59:01 volunteering, and all we have to do is go out and buy
10:59:04 the materials.
10:59:05 But I just wanted you to know what we are doing and
10:59:07 how you have been our partner in making this happen.
10:59:09 And that we are a good partner.
10:59:11 We have clean audits.
10:59:13 We exceed or meet all expectations of monitoring
10:59:16 reports that the city might do, the county, the
10:59:19 federal government, United Way, and there is a good
10:59:22 return on the dollar because what we do costs about $7
10:59:27 an hour and if you had to go and pay for the services
10:59:30 it hags a value of $18.
10:59:33 I just wanted again to thank you very much for
10:59:35 recognizing the needs of our elderly and letting
10:59:38 seniors in service help address a problem in our
10:59:42 And as of this day we have a hundred people on the
10:59:45 waiting list for our services.
10:59:51 >> Well, thank you so very much.
10:59:52 I'm very much aware of seniors in service, and of
10:59:55 course one of the strong supporters, and attend the
11:00:00 functions and you do a great job, the agency does a
11:00:04 great job.
11:00:04 We do appreciate that so very much.
11:00:06 Any other questions?
11:00:11 Thank you.
11:00:11 Item 63.
11:00:12 Motion to receive and file.
11:00:14 >>CHAIRMAN: So moved.
11:00:14 >>THOMAS SCOTT: Is there a second?
11:00:17 >>JOHN DINGFELDER: Second.
11:00:18 (Motion carried).
11:00:20 >>THOMAS SCOTT: Our last item --
11:00:23 >>JOHN DINGFELDER: Mr. Chairman?
11:00:24 On item 62, which I am glad to receive and file, there
11:00:33 are two gentlemen here that got confused on their
11:00:37 ability to speak, because they wanted to chat with us
11:00:39 about solar stuff.
11:00:41 I think they missed the morning opportunity.
11:00:42 And I don't know if we are going to make them wait
11:00:45 until two or three in the afternoon to come back and
11:00:47 But I just want to point that out to Mr. Chairman's
11:00:52 >>THOMAS SCOTT: Well, let me finish our morning agenda
11:00:54 here, and we can see what council wants to do.
11:00:57 Let me move to item 64.
11:01:09 >> Darrell Smith, chief of staff here to report on
11:01:11 item 64.
11:01:13 This item was continued from your May 21st regular
11:01:26 I would like to present a brief PowerPoint.
11:01:29 The contract is for professional and technical
11:01:32 staffing services for various departments within the
11:01:36 We have a -- as way of background we have a
11:01:39 competitively bid contract that was enacted last June.
11:01:44 It involves three different tech agencies that provide
11:01:49 The temporary employees are billed on an hourly basis
11:01:53 depending on the skills, the experience, and the job
11:01:56 that they perform.
11:01:57 And they are for a limited duration depending on the
11:02:01 length of the project, or the need of the department
11:02:04 that's providing the funding for the temporary
11:02:09 I mentioned the contract was began in June of '08 with
11:02:15 additional funding of $1,930,000, an additional
11:02:21 $270,000 was added in August of '08.
11:02:24 In March of '09 another 300,000 was added to the
11:02:29 contract, for a total $760,000 currently.
11:02:37 That $760,000 we have to date expended a little over
11:02:43 400,000, and we still have a balance remaining of
11:02:46 around 359,000.
11:02:50 And the resolution before council is simply asking for
11:02:55 a renewal of this contract in accordance with the
11:02:58 terms of the contract that had two one-year renewals
11:03:03 built into the contract initially.
11:03:06 We are not asking for any additional money at this
11:03:09 time to support this particular contract.
11:03:17 As far as the categories of work performed under this
11:03:19 contract, they are shown here in basically three
11:03:23 And we are talking about providing work to support
11:03:28 full-time staff positions during the periods when the
11:03:32 full-time staff positions are vacant.
11:03:35 Typically we encounter vacancies of full-time
11:03:38 positions when we are talking resignations.
11:03:41 For example, we require two weeks notice for a
11:03:44 resignation, but in many cases it will take two to
11:03:47 three months to fill -- find replacements for those
11:03:52 positions and we need to continue to perform the work
11:03:54 in key positions.
11:03:56 We can utilize a temporary employee from this
11:03:59 During the interim until the full-time employ is he on
11:04:03 Promotions and retirements, although we have more lead
11:04:06 time in those cases generally, we still have gaps in
11:04:10 key positions that we can use temps from this contract
11:04:14 to provide support.
11:04:17 The fourth category shown here is military leave.
11:04:20 And we have to hold a position open, if the city
11:04:25 employee is called to military service, until such
11:04:27 time as that employee comes back.
11:04:30 Those could be prolonged engagements up to a year or
11:04:34 And it's very appropriate to use temporary employees
11:04:37 for those positions so that when the military member
11:04:40 returns, the position will be available rather than
11:04:44 having to lay off a full-time employee.
11:04:47 And layoffs, it's not mentioned here as a category,
11:04:51 and I want to emphasize that this contract has not
11:04:55 been in any case used to perform work that was
11:04:59 previously used by -- previously performed position
11:05:02 that was eliminated and an employee was laid off.
11:05:08 These are positions that were not eliminated.
11:05:11 They are valid needs as far as provisional
11:05:16 And we need to provide continued support to them.
11:05:20 The second category there represents a category where
11:05:22 we have existing staff resources in order to perform
11:05:25 the work.
11:05:26 We just need additional capacity, additional expertise
11:05:30 to perform projects that come up, special projects,
11:05:36 for example, the construction service and the rate
11:05:39 increase, when we increase the fees structure last
11:05:44 fall that required additional temp resources to come
11:05:46 on, reprogram our computer systems, and application
11:05:50 And the third category is performing highly technical
11:05:54 knowledge and skills -- or providing those knowledge
11:05:57 and skills for complex projects for which we don't
11:06:00 have the resources on staff in order to perform that
11:06:05 Basically those three categories and looking at this
11:06:13 contract in particular, we had a total of 16 different
11:06:20 And this slide shows you the position title, the
11:06:24 hourly bill rate that was paid for that temporary
11:06:26 employee, the total paid to date for each of those
11:06:30 engagements, the start date, and the end date.
11:06:34 And you can see the first three in that category of
11:06:38 providing sales for full-time positions.
11:06:41 You can see that two of the three have already been
11:06:47 Their engagements are over.
11:06:49 And we have the third, the advance wastewater position
11:06:55 which is an ongoing position.
11:06:58 The next slide shows three more in that same category.
11:07:02 You will note there on the application systems
11:07:04 analyst, the hourly bill rate, $83.40.
11:07:09 That's significant.
11:07:11 What's significant also is the amount of expertise
11:07:13 that we were able to obtain with that and the fact we
11:07:19 only kept that person on board for three and a half
11:07:21 weeks of work because of the high rate and it was a
11:07:23 project specific engagement.
11:07:28 Slide 6 shows you the next three categories, or the
11:07:32 next three examples in that same category.
11:07:36 And then slide 7 shows you the remaining -- actually,
11:07:43 the next category of engagements which is providing
11:07:49 the additional capacity capability.
11:07:51 And those are in the areas of waterway project
11:07:54 manager, where we are looking at the South Tampa canal
11:07:57 dredging project, where we need to bring on additional
11:08:01 expertise for that.
11:08:02 Then we had two engagements in the construction
11:08:05 services that are shown here.
11:08:07 One of those in the stormwater department.
11:08:13 Also in the category of additional capacity are web
11:08:17 developers and business systems analysts.
11:08:19 Going into the third category, very unique, a web farm
11:08:29 program -- you probably wonder what that is -- we
11:08:31 brought on a temporary employ to replace the operating
11:08:34 system that we use in all of our web servers for the
11:08:37 city's technology and innovation department.
11:08:40 On slide 10 you see a comparison of the cost per hour
11:08:48 for utilizing city employees and the selected job
11:08:52 classifications as compared to a temp agency
11:08:57 And you see city costs per hour.
11:08:59 It's the first column after the position.
11:09:03 Then you see what is added for the benefits cost.
11:09:06 You see the total city cost.
11:09:08 You see the temp agency bill rate.
11:09:10 And scanning the column for differences, you see that
11:09:14 for these positions, we are saving money when we are
11:09:20 using temp agency personnel.
11:09:22 In all cases except the one where it's showing an
11:09:25 additional cost for the tech support contractor.
11:09:29 But in general it's a lower cost, and certainly a more
11:09:34 flexible opportunity for us to use to accomplish work.
11:09:39 As far as our conclusions, we think that use of
11:09:42 professional and technical temporary employees provide
11:09:44 valuable knowledge and experience for our operations,
11:09:49 the availability that they provide on short notice for
11:09:51 time limited engagements enhances our efficiency, our
11:09:55 flexibility, and our productivity.
11:09:58 And the contract rates for professional and technical
11:10:03 services provide a cost-effective approach to
11:10:08 accomplishing the work.
11:10:09 I would be glad to answer any questions you may have.
11:10:13 >>THOMAS SCOTT: Thank you, Mr. Smith, for your
11:10:15 presentation, and I want to thank you for yesterday's
11:10:19 briefing as well and going over this.
11:10:21 I think this gives us a lot more clarity on what is
11:10:26 happening here.
11:10:30 I think, though, in terms of the savings, I think your
11:10:33 savings is that in terms of benefits, that these temp
11:10:40 services are not paying benefits.
11:10:42 I don't know of any temp service that pays benefits.
11:10:46 But it appears that that's that where your savings are
11:10:50 is that they don't offer any benefits.
11:10:54 Am I accurate on that?
11:10:56 >>> That's correct, in general I would say yes.
11:10:59 Also the temp agency will typically pay a lower rate
11:11:02 per hour than the city employees.
11:11:06 So it's in benefits and a lower per hour basic rate
11:11:12 where there's a difference.
11:11:13 >>THOMAS SCOTT: Any questions?
11:11:15 Councilman Dingfelder.
11:11:18 >>JOHN DINGFELDER: Mulhern first.
11:11:19 >>MARY MULHERN: Thank you for this really thorough
11:11:22 report for taking the time to get that to us and for
11:11:25 briefing the rest of us yesterday. and my questions
11:11:30 are having after having some time to look at this and
11:11:33 think about it so I appreciate your time and
11:11:40 I don't have much to say that I didn't talk to you
11:11:43 about yesterday, but I have some major concerns.
11:11:48 One, I'm not convinced that you are getting the best
11:11:52 efficiency here in some cases, because I'm looking --
11:11:58 there were several like web jobs.
11:12:03 What we are doing here is we are contracting out for
11:12:06 work that is an ongoing, continual work that every
11:12:13 business, certainly the city, needs.
11:12:15 So I'm not convinced that if you are having all of
11:12:18 these part-time temps coming in -- and I'm talking
11:12:21 about the times where they are staying for a long
11:12:24 period of time, because I found several of these jobs,
11:12:27 one, two, three, four, five, at least five of them
11:12:34 where the duration was like from seven to twelve
11:12:39 So you are filling these positions for what I think
11:12:44 really aren't temporary.
11:12:45 That's my biggest concern, is the number of months,
11:12:49 and the amount of time that you keep a temp here,
11:12:53 whereas I think the city ought to be able to find in
11:12:56 this economy where everyone I know is looking for
11:12:58 jobs, and I certainly know a lot of web developers
11:13:02 that are looking for work.
11:13:04 We should be able to find somebody that we can hire
11:13:07 and maybe by combining these different departmental
11:13:10 tasks we would have a person who could do those.
11:13:13 So that's my one concern about whether we are really
11:13:17 getting the cost savings and the efficiency we could
11:13:20 have as opposed to having to hire several different
11:13:24 people when we could have one employee, because you
11:13:26 are comparing this to what each of these, a full-time
11:13:31 employee would cost in salary and benefits, when
11:13:34 actually a lot of these clearly were not full-time
11:13:38 So if you combine them into the programs, or the
11:13:43 projects into work for one full-time employ, for
11:13:47 instance, you really, I think, it would be cheaper to
11:13:50 do that.
11:13:52 Just something to think about, to look at.
11:13:55 My other concern -- and really this is the biggest
11:13:58 concern, and it's partly what Chairman Scott said
11:14:01 about they are not getting benefits.
11:14:03 But the reality is, if we are paying an agency to
11:14:07 provide us workers, that agency has to pay way below
11:14:14 what we are paying which I would assume is a rate that
11:14:18 will guarantee us qualified, experienced, the best
11:14:22 employees we can get.
11:14:24 So if we are paying an agency, who is going to pay not
11:14:28 the appropriate scale wage, plus not give benefits, I
11:14:32 think we are not getting the best employees we could.
11:14:36 So I know these are temp jobs.
11:14:40 But again we are going to keep somebody longer than,
11:14:42 you know, six months, I think if the city has a
11:14:48 problem finding an employee after a six-month search,
11:14:51 then we have a problem in our HR department, because I
11:14:54 just don't think that it should take that long, and we
11:14:56 need to figure out ways to streamline it.
11:14:59 So that's my concern.
11:15:01 I mean, I'm concerned about this trend of people not
11:15:04 getting benefits, and the trend of, you know, all kind
11:15:10 of companies have been doing this, privatizing, and I
11:15:14 know you are going to just say this is temporary, but
11:15:21 you only heard of one example where the employee was
11:15:24 on military leave and coming back.
11:15:27 Most are temporary jobs with the assumption that they
11:15:29 are going to be filled.
11:15:30 But if you keep a temp in there for a year, I have a
11:15:33 hard time believing that's necessary.
11:15:35 And we have no way of knowing to say this one, and if
11:15:39 you can tell me that each of these individuals
11:15:43 individual positions that you listed were all or will
11:15:47 all be filled by an actual employee of the city, not a
11:15:54 temp, then I would feel better about it.
11:15:58 But I think we should not be having holding temp
11:16:02 workers for more than six months.
11:16:11 I understand in the case of emergency short term
11:16:14 specific needs.
11:16:15 But I think that a lot of these jobs sound like really
11:16:18 jobs that we need to have filled in the city
11:16:25 Those are my concerns.
11:16:28 And I know I can't tell you how to run your budget and
11:16:34 your employees.
11:16:35 But I do have those concerns.
11:16:43 >>> A couple of comments, if I might, Mr. Chair.
11:16:47 >>THOMAS SCOTT: Yes.
11:16:47 >>> You have to look at each situation, unique
11:16:49 circumstances associated with it, as well as the three
11:16:54 My understanding of your comments, it's primarily
11:16:57 focused on category one, where we have a full-time
11:17:01 position that is vacant, whether it's from a
11:17:05 resignation, retirement, or promotion, or long-term
11:17:10 military leave.
11:17:12 And we rely on the department heads to look at their
11:17:16 respective operations.
11:17:18 And when they have vacancies, wherever possible, we
11:17:22 want to recruit and find full-time city employees and
11:17:29 get back on the path of continuity and productivity.
11:17:33 But there are situations where that's not the most
11:17:38 practical approach.
11:17:39 And I'll use the technology support contractor
11:17:43 position there that are shown in category one where
11:17:48 one came on and said this year, one came -- in
11:17:52 February of this year and one came on in March.
11:17:56 An ongoing category will.
11:17:58 And in the budget department, they are providing
11:18:00 technology and innovation support to the budget
11:18:04 And we brought them on after three -- three different
11:18:07 recruitments trying to find qualified and experienced
11:18:12 technologies folks to come in and fill those two
11:18:15 full-time positions.
11:18:17 And we got to the point in February or March where we
11:18:20 have to put the budget together.
11:18:24 And we need that expertise especially in the
11:18:27 technology area.
11:18:30 And once we get those employees on board, we don't
11:18:34 want to have a transition during the budget cycle.
11:18:37 I don't want to bring two folks in, in February and
11:18:40 March, and then find a full-time employ in June and
11:18:43 say, okay, we are going to start anew.
11:18:45 We need that continuity during the budget cycle.
11:18:48 So this example, our plan is to keep the contract
11:18:51 temps on until September when we complete the budget
11:18:56 Then we'll go back out to recruitment for a full-time
11:19:00 Now the other example in category one there is in the
11:19:03 AWT plant technician.
11:19:05 Those are positions, technical positions out at the
11:19:08 wastewater plant.
11:19:10 And we have a lot of those positions.
11:19:12 And we have a high turnover in those positions.
11:19:15 It's hard to find qualified individuals that want to
11:19:18 come and fill those positions on a long-term basis.
11:19:22 And what we have had to do is either pay overtime to
11:19:28 fill those positions, that has to be manned or
11:19:32 personed on a 365 days out of the year, we either pay
11:19:37 them overtime when we have vacancies, or we go to a
11:19:40 temp agency that can provide the qualified and
11:19:43 experienced individual at a cost lower than even our
11:19:47 regular pay for those employees.
11:19:50 So we need to look at each one uniquely, we need to
11:19:54 rely on management to make the best decision, and I
11:19:57 would say that this is a very cost effective and
11:20:00 efficient way of accomplishing the work.
11:20:05 >>JOHN DINGFELDER: Thank you, Mr. Smith.
11:20:08 You and I chat board of director this yesterday.
11:20:12 And one of the most important issues to me was our
11:20:14 conversation about, you know, is the city laying off
11:20:18 people and now we are replacing them with temps?
11:20:21 And I want you to state for the record what your
11:20:23 position is on that.
11:20:25 >>> Darrell Smith: Yes, there was an inaccurate
11:20:30 discussion when this came up before council the last
11:20:33 time that associated this contract with employee
11:20:38 layoffs or positions that have been eliminated.
11:20:41 And what I said today and with you yesterday, sir, was
11:20:44 that in no case for this contract have we used
11:20:49 temporary personnel to perform work of a position that
11:20:53 was eliminated and that an employee was laid off from.
11:20:56 And I'm not aware of any temp contract that we have in
11:21:01 the city that has been used in that manner.
11:21:03 >>JOHN DINGFELDER: Mr. Chairman, I think that to me is
11:21:07 one of the most critical issues, because this body has
11:21:12 sort of stated informally at least a policy against
11:21:15 that, and I want to make sure that that wasn't being
11:21:18 circumvented and I appreciate the clarification on
11:21:21 The couple of the issues that I think have been
11:21:22 clarified is the dollar amount.
11:21:26 The last time we talked about this, it looked like
11:21:29 this was approaching three quarters of a million
11:21:31 dollars annually, it's now been clarified that that's
11:21:34 sort of over a two-year period.
11:21:37 So it's about half of that.
11:21:39 Maybe in the 300s, $300,000.
11:21:45 And the other thing is, Gwen, you and I had this
11:21:48 discussion, we weren't really sure how many positions
11:21:50 this was about.
11:21:51 Was it about 50 position organizes something like
11:21:55 You have now clarified we are talking about 16
11:21:57 positions at this time.
11:21:57 So with all that confusion clarified, I'm willing to
11:22:00 move the prior resolution.
11:22:04 >> Second.
11:22:09 >>THOMAS SCOTT: Yes, sir.
11:22:10 >>JOSEPH P. CAETANO: On page 10 of Mr. Smith's report,
11:22:13 it definitely indicates that there is some savings for
11:22:16 the city starting at $5.01 an hour, as high as $8.49
11:22:23 an hour.
11:22:24 These are pretty high positions, environmental
11:22:29 scientists, tech support contractor, GIS analyst.
11:22:33 So I do see a savings.
11:22:37 How long -- what is the longest period, Mr. Smith,
11:22:39 that some of these people have been in these temp
11:22:47 >>> For this contract the longest engagement that we
11:22:49 have had started -- well, the first engagement was
11:22:55 July 3rd of 2008.
11:22:58 But looking at the longest ongoing engagement, it's
11:23:05 probably September of last year until now.
11:23:12 Those engagement times do not necessarily assume a
11:23:15 40-hour workweek.
11:23:16 We could have weeks where the person doesn't even come
11:23:19 to work.
11:23:21 And the one example, though, with the military leave,
11:23:23 we are employ for example that temporary employee on a
11:23:26 40-hour workweek basis.
11:23:28 So again it varies depending on the needs of the
11:23:33 >> So I see definitely a savings.
11:23:35 There's no doubt about it.
11:23:36 And when these people come from a temp agency, is
11:23:40 there a clause in there that prohibits us from hiring
11:23:43 those people on a full-time basis if needed?
11:23:47 >>> No, sir.
11:23:49 After the engagement is complete, it's my
11:23:52 understanding that they are able to compete for any
11:23:56 jobs that may come open with the city or any other
11:24:00 >>> Thank you.
11:24:05 >>THOMAS SCOTT: There's a motion on the floor.
11:24:07 It's been moved and seconded.
11:24:09 All in favor signify by saying Aye.
11:24:14 >>> I appreciate the report and the PowerPoint and
11:24:17 even the briefing yesterday.
11:24:19 I think that helped council and clarified a lot of
11:24:22 issues and concerns.
11:24:24 Thank you very much.
11:24:25 Okay, the other issue was item 62, I believe
11:24:29 councilman Dingfelder already -- the item was
11:24:37 requested by staff to continue to a future meeting.
11:24:41 So I guess -- we don't have a report, we don't have
11:24:45 the staff here.
11:24:46 >>JOHN DINGFELDER: I think they just missed their
11:24:50 chance at nine this morning because they weren't
11:24:52 familiar with our process.
11:24:53 And I was hoping to save them the trouble of waiting
11:24:55 till 2:00 or 3:00 this afternoon to --
11:24:59 But the question is it's going to come back.
11:25:01 My point is the continued item is coming back to us.
11:25:04 When is it coming back?
11:25:07 60 days.
11:25:09 Do you want them to wait 60 days?
11:25:11 Are they going to talk now and then come back in 630
11:25:14 days and talk again?
11:25:15 That's the question.
11:25:18 >>JOHN DINGFELDER: Yeah, I mean, I would just ask out
11:25:21 of courtesy just to waive the rules.
11:25:25 They missed the public comment period at the beginning
11:25:28 of the meeting, which they probably would have just
11:25:30 given us their two or three minutes on how they feel
11:25:34 about -- I never met them until today so it's not like
11:25:37 I scheduled them to come or anything like that.
11:25:40 But I just noticed them in the audience.
11:25:43 They seem to want to inform us about their experience
11:25:45 with solar, and maybe staff could hear that, and
11:25:49 include that as part of their presentation.
11:25:52 >>THOMAS SCOTT: There's a motion.
11:25:53 Is there a second?
11:25:54 The motion to waive the rules and hear them, give them
11:25:58 three minutes each you're saying?
11:26:00 >>JOHN DINGFELDER: No, two minutes.
11:26:02 Two minutes.
11:26:02 >>THOMAS SCOTT: Motion and second.
11:26:04 (Motion carried).
11:26:06 >>JOHN DINGFELDER: Thank you, council.
11:26:09 State your name.
11:26:14 >>> I'm Jim Rex, Solar Source.
11:26:16 We are a local company in Largo.
11:26:18 Been in business 25 years.
11:26:20 I know you are thinking about the convention center
11:26:22 and other businesses by the city.
11:26:27 Solar is a great thing.
11:26:29 We actually just finished the first megawatt system in
11:26:32 the state which is the Orange County convention
11:26:35 center, okay?
11:26:37 That's 6,000 solar panels.
11:26:39 I don't know what the electric bill on the Tampa
11:26:41 convention center is but there's is $6 to $7,000 a
11:26:47 We are saving them 10% that they saw the need to start
11:26:50 now and do something.
11:26:53 We are in your backyard.
11:26:54 We have facilities.
11:26:55 We have a training facility.
11:26:57 We actually have been on the news of training our own
11:27:02 We invite people, contractors, electricians, because
11:27:05 solar is going to be bigger than maybe even oranges in
11:27:09 Florida some day, okay?
11:27:11 And all we want to do is be there and help you.
11:27:14 We are right in your backyard.
11:27:18 Brie brought on 15 employees in the last year, okay?
11:27:21 We are a growing company, 25 years in business, and we
11:27:24 know what we are doing.
11:27:26 We are actually in Texas doing some stuff with Dell.
11:27:29 We just want to thereby to help you.
11:27:32 >>JOHN DINGFELDER: Mr. Chairman, I could ask a quick
11:27:35 >> I was suggesting, you probably want to meet with
11:27:37 administration, convention center, to have that
11:27:40 discussion with them.
11:27:40 >>> Okay.
11:27:41 >>JOHN DINGFELDER: I mentioned to him earlier about
11:27:43 meeting with Mr. Vaughan, and Mr. Daignault, and of
11:27:47 course John Morris over at convention.
11:27:51 Let me ask about Orange County.
11:27:53 I saw a Web site related to some of the -- they have a
11:27:57 neat slogan.
11:27:57 They said we are turning orange green, which I thought
11:28:00 was kind of clever.
11:28:02 But how did they fund that big capital investment?
11:28:06 Did they have any public-private partnership to do
11:28:09 Or did they do it through utilities?
11:28:14 >>> UC was a big help.
11:28:15 And maybe something we could look at Tampa Electric
11:28:20 There's federal money that you can get.
11:28:22 I don't know wherein they brought it all in.
11:28:25 We partnered with Johnson control, large engineering
11:28:29 It's bigger than any solar company in the state could
11:28:32 have handled, okay?
11:28:33 But we needed, you know, we have been out there four
11:28:35 months doing that job.
11:28:37 And they actually did a display inside where you can
11:28:43 see a working system, okay.
11:28:45 But we had at our facility, we do a training facility
11:28:48 that's solar source institute where we actually are
11:28:51 being credited with St. Pete college now.
11:28:54 >> Is that going to power just the convention or
11:28:57 create excess power for the system?
11:28:59 >>> It's just going to be sent into their grid, into
11:29:02 the convention center.
11:29:05 It's going to save 10%.
11:29:06 But when you got a bill $6 to 700,000 it's a start,
11:29:10 okay. I thought when the gentleman told me, I
11:29:10 thought, is that a year?
11:29:15 He said, No, that's a month.
11:29:18 >> $700,000 a month.
11:29:21 Thank you, sir.
11:29:21 >>> I give him my card, pass it on.
11:29:25 A lot of people don't know we are right in your
11:29:27 We worked with Verizon, TECO. We actually put a
11:29:30 system on Big Bend down there.
11:29:32 You know, but we are here, you know.
11:29:38 We got 25 years in the business.
11:29:40 >>THOMAS SCOTT: The other gentleman?
11:29:46 Item 62.
11:29:50 >>> Good morning.
11:29:54 Good morning, chairman and council.
11:29:55 My name is Levy Amagofer, I'm at 3236 Lutana, Palm
11:30:01 Harbor, Florida.
11:30:02 First off I would like to commend you for
11:30:03 consideration and considering the use of solar for the
11:30:06 future of this community and the future for the
11:30:08 surrounding areas as well.
11:30:12 Not only would you be saving money by installing
11:30:16 solar, but you would also be creating new jobs,
11:30:19 reducing CO2 emissions for better health, for the
11:30:24 Tampa Bay area could be the forerunner in not only the
11:30:27 state but also the country in solar renewable energy.
11:30:32 As we speak -- and I'm in conjunction with solar
11:30:36 source -- we are finishing a five-acre array of solar
11:30:41 panels on the roof of the Orange County convention
11:30:43 If needed we can help Tampa city with design,
11:30:46 installation, input, implementation of solar that
11:30:50 could lead the -- lead the state and country out of
11:30:53 the dark area of power usage and into the light.
11:30:57 Thank you very much.
11:30:58 >>THOMAS SCOTT: Thank you very much, sir.
11:31:00 New business?
11:31:03 Any new business?
11:31:04 Councilwoman Mulhern.
11:31:06 >>MARY MULHERN: It's not new business.
11:31:07 I just want to thank you for coming here and letting
11:31:10 us know what is going on in other parts of the state.
11:31:13 I think somehow in Tampa here, sometimes we feel -- it
11:31:18 feels like we are isolated and all the stuff is
11:31:21 And that you are in our backyard.
11:31:23 We need to really realize that and work with you.
11:31:29 I think it's great that you are here and that you are
11:31:31 ahead of the curve.
11:31:32 25 years you have been doing this.
11:31:34 It's great.
11:31:34 >>THOMAS SCOTT: Councilman Dingfelder.
11:31:44 Come on, sir.
11:31:45 >> My name is Ed Telew.
11:31:48 I guess I'm what you would call an energy engineer.
11:31:51 I'm actually a student at the University of South
11:31:52 Florida right now.
11:31:55 I'm currently training.
11:31:56 I used to be a municipal and civil engineer but that
11:32:00 seems to have evaporated.
11:32:04 What I'm concerned about in this respect is oversell
11:32:08 of the item.
11:32:09 I actually do believe in solar energy.
11:32:13 And I think there's a substantial place for it here.
11:32:17 What bothers me a lot is -- is considered the main
11:32:22 thinks thing and yet 3 million barrels a day of oil,
11:32:26 crude oil could be saved if suburban homes were put on
11:32:30 hot water heating.
11:32:31 That's where solar would really pay.
11:32:33 But there's nothing done about that.
11:32:36 Other than I think in Israel.
11:32:37 Israel is about the only place doing something along
11:32:40 that line.
11:32:43 But with respect to the oversell -- and I think
11:32:46 Germany is going to be hit very hard by this because
11:32:49 Germany has gotten into -- heavily.
11:32:56 A lot of times these deteriorate and they are
11:32:58 functionally worthless in five years, and yet in the
11:33:01 economic payoff, they are presented as being good for
11:33:05 20 years.
11:33:06 And that sets things up from a capital standpoint
11:33:12 which is really like my area like engineering,
11:33:14 economics, and the time horizon is critical.
11:33:18 These would be deemed paid off for 20 years, and they
11:33:21 are showing a return for five years.
11:33:23 And you are going to keep paying, paying, paying for
11:33:27 15 additional years when you are not going to be
11:33:29 getting a lot of raw power.
11:33:31 So that's the one thing I wanted to alert you to,
11:33:35 because it's a thing where you have got to have the
11:33:41 You have got to have a very knowledgeable people.
11:33:45 There's got to be a track record developed on this.
11:33:47 And I'm not saying I'm pro on or not an anti.
11:33:53 It's all dependent on the data.
11:33:54 But this is something very key and critical that's got
11:33:57 to be addressed.
11:33:57 How long do these last?
11:34:01 Because I have no vested interest in this.
11:34:04 I don't install them.
11:34:06 I'm just a person kind of concerned about the City of
11:34:09 Tampa, and other places that would be paying for 20
11:34:13 years, something you are only getting a five-year
11:34:16 return on.
11:34:16 (Bell sounds)
11:34:17 >>THOMAS SCOTT: Thank you very much.
11:34:18 New business?
11:34:19 >>JOHN DINGFELDER: Which way are you going?
11:34:26 >>THOMAS SCOTT: It doesn't matter.
11:34:28 >>GWEN MILLER: I would like to present a commendation
11:34:30 to the Norris and Candis Brown family who is going to
11:34:34 be recognizing their twelfth family reunion to be held
11:34:39 here in Tampa June 25th to 28th.
11:34:41 >>THOMAS SCOTT: Moved and second.
11:34:44 (Motion carried)
11:34:45 Anything else?
11:34:46 >>GWEN MILLER: That's it.
11:34:51 >>MARY MULHERN: I would like to present a commendation
11:34:54 to Delia Sanchez who will be the recipient of the
11:35:00 19th annual Victor DiMaio achievement award,
11:35:04 presented on Wednesday, June 24th.
11:35:07 I would like us to --
11:35:10 >>JOHN DINGFELDER: Second --
11:35:11 >>MARY MULHERN: -- have the commendation on the week
11:35:14 before that, if I could, so we could present it to her
11:35:17 on that date.
11:35:19 We don't need to have it at council.
11:35:21 Just to have the commendation.
11:35:24 >>THOMAS SCOTT: Okay, that's all right. Moved and
11:35:26 (Motion carried)
11:35:32 >>JOHN DINGFELDER: I want to give a shoutout.
11:35:34 My aide, legislative aide to Jim Reese is over at
11:35:40 Tampa General Hospital. He's okay.
11:35:41 He just had a little tweaking.
11:35:46 But they are going to let him out in the next day or
11:35:48 I'm sure our council would want to send their regards
11:35:51 to Jim.
11:35:52 Maybe he's watching from his bed and his family, and a
11:35:55 quick recovery.
11:35:58 >>THOMAS SCOTT: Let him know we are praying for him.
11:36:00 Councilman Miranda?
11:36:05 >>CHARLIE MIRANDA: No, sir.
11:36:06 >>THOMAS SCOTT: Then we stand in recess until 1:30.
11:36:09 Thank you.
11:36:09 (The meeting recessed at 11:36 a.m.)
13:39:05 [Sounding gavel]
13:39:06 >>THOMAS SCOTT: Tampa City Council will now come to
13:39:10 We'll have roll call.
13:39:12 >>JOSEPH P. CAETANO: Here.
13:39:15 >>GWEN MILLER: Here.
13:39:16 >>CHARLIE MIRANDA: Here.
13:39:18 >>THOMAS SCOTT: Here.
13:39:22 First of all, before we get started, let me take the
13:39:24 opportunity to congratulate our council attorney Mr.
13:39:27 Martin Shelby.
13:39:30 His daughter graduated today and she's on her way to
13:39:35 Yale. Congratulations to you and your daughter.
13:39:37 >> I hope she's going on a scholarship.
13:39:40 [ Applause ]
13:39:47 >>JOSEPH P. CAETANO: Mr. Chairman, I would like to
13:39:50 file a motion for reconsideration on plan amendment PA
13:39:53 0806, so that the gentleman in charge of that could do
13:40:01 his PD simultaneously with the plan amendment, and
13:40:06 give him 90 days to prepare this.
13:40:08 >>THOMAS SCOTT: Let me have counsel speak to that.
13:40:16 Can we take it up here?
13:40:17 And this is where we are, with only four members.
13:40:24 >>MARTIN SHELBY: Council, there are two rules that
13:40:27 council has, in addition to Roberts rules.
13:40:30 Rule 4-F states -- excuse me.
13:40:35 Rule 4-G states a motion to reconsider any action of
13:40:40 the council shall only be made by a member who
13:40:42 previously voted on the prevailing side and shall be
13:40:45 made only at the same meeting or at the first
13:40:47 subsequent regular meeting.
13:40:49 A second to the motion may be made by any member.
13:40:52 Rule 4-F states anytime there is a need for
13:40:55 reconsideration by council which must be held at its
13:40:58 next regular meeting and there is not a full council,
13:41:01 the council may continue reconsideration to the next
13:41:05 regular meeting when there is there is a full council
13:41:09 That being said, Mr. Chairman, please forgive me, I
13:41:13 have only been informed very recently as to what took
13:41:15 place this morning.
13:41:17 >>THOMAS SCOTT: The question, Mr. Caetano is making a
13:41:21 motion for reconsideration, and I thought I heard --
13:41:24 I'm assuming it involves a plan amendment, this
13:41:27 morning we voted on, and as well a PD to track along
13:41:31 with that.
13:41:32 Is that where we are at?
13:41:35 I see the attorney here.
13:41:36 Yes, sir.
13:41:37 Mr. Fletcher?
13:41:38 >>CHARLES FLETCHER: It's a rather unique situation
13:41:43 I'm not aware that council's specific rules deal with
13:41:49 this, other than to say it needs to be at the next
13:41:52 meeting, and we are at the next meeting.
13:41:54 Two questions come to mind.
13:42:00 It's to be a motion of someone on the prevailing side,
13:42:04 in this case Mr. Caetano is on the prevailing side of
13:42:07 the motion that failed the previous meeting.
13:42:10 However, if recollection serves me correctly he was
13:42:14 not on the prevailing side of the previous motion to
13:42:17 And I'm assuming Mr. Shelby is looking at Roberts
13:42:20 rules there to see if there's anything specific to
13:42:22 this situation in there.
13:42:26 If I may make a suggestion.
13:42:32 If Marty and I can look at these procedural rules and
13:42:35 we can take this up after you handle some additional
13:42:38 matters today.
13:42:39 It's going to take us a little while to figure out.
13:42:41 >>MARTIN SHELBY: Just one question then so I can
13:42:46 Was Mr. Caetano on the prevailing side of Kass --
13:42:50 today's motion to reconsider?
13:42:53 >> No.
13:42:54 The vote was 4 to 3 with Mulhern, Miranda, Scott and
13:43:01 >>MARTIN SHELBY: I'll talk with Mr. Fletcher, but I
13:43:05 think that being the case I will have an answer
13:43:07 relatively soon.
13:43:08 >>CHARLES FLETCHER: We will need to figure out whether
13:43:10 the prevailing side question is on the underlying
13:43:13 action or the previous motion.
13:43:15 So we need to look at that.
13:43:16 >>THOMAS SCOTT: So if he's not on the prevailing side,
13:43:19 it needs to come back at the next meeting though.
13:43:21 >> If E not on the prevailing side the motion is out
13:43:25 of order in today's motion.
13:43:27 >>THOMAS SCOTT: And bring it back at another meeting.
13:43:31 Can bring anything back, if the motion -- if he's not
13:43:34 on the prevailing side today, time lapse, at our next
13:43:39 meeting, next Thursday, co-bring back -- he can do
13:43:44 Unless council has a rule that prevents you from doing
13:43:46 >>MARTIN SHELBY: Well, this is actually on a petition
13:43:49 for a comprehensive plan amendment.
13:43:53 So I will also check into that for a definitive
13:43:58 >>THOMAS SCOTT: Okay, thank you.
13:44:00 I stand to be corrected.
13:44:02 >>CHARLIE MIRANDA: No, you are sitting to be
13:44:04 >>THOMAS SCOTT: Thank you, Mr. Miranda.
13:44:08 [ Laughter ]
13:44:08 Then we will move to our next item, appeal hearing,
13:44:20 >>GWEN MILLER: 68.
13:44:22 You are going too fast.
13:44:23 >>THOMAS SCOTT: That's right.
13:44:24 Continue on 68.
13:44:25 >> So moved.
13:44:27 >> Second.
13:44:27 >>THOMAS SCOTT: To continue to August 28, 2009.
13:44:31 All in favor?
13:44:38 Item 69.
13:44:45 >>CHARLIE MIRANDA: Move to open item 69.
13:44:48 >>THOMAS SCOTT: Second?
13:44:50 Is there a second?
13:44:52 >>MARY MULHERN: Second.
13:44:53 >>THOMAS SCOTT: All in favor?
13:44:57 >>CATHERINE COYLE: Land development.
13:44:59 Petition V 09-253 is a request for zoning appeal
13:45:04 administrator for a congregate facility five-bed.
13:45:11 >>THOMAS SCOTT: Thank you.
13:45:13 We need to have everybody who is going to be speaking
13:45:16 to council today please stand and be sworn in.
13:45:19 If you are going to be speaking on addressing council
13:45:23 anyway, today, this afternoon, please stand to be
13:45:27 (Oath administered by Clerk)
13:45:28 >>THOMAS SCOTT: Mr. Shelby.
13:45:34 >>MARTIN SHELBY: Mr. Chairman, if I can inquire.
13:45:39 Are there any items that need to be received and filed
13:45:41 in this particular issue?
13:45:45 Thank you.
13:45:45 Finally, ladies and gentlemen, there is a form outside
13:45:50 that states council's rules relative to testifying.
13:45:52 Make sure you please do sign that if you have not
13:45:55 Thank you.
13:45:58 >>THOMAS SCOTT: You may proceed.
13:45:59 >>CATHERINE COYLE: The location is 5714-47th
13:46:03 The structure was built in 1982.
13:46:05 It is a residential structure in character.
13:46:09 It is on the west side of 47th street north of
13:46:12 Hillsborough Avenue.
13:46:23 I will show you the structure itself.
13:46:24 You will note that the rules state that there does
13:46:26 seem to be a 1200-foot separation between these types
13:46:28 of facilities.
13:46:29 The distance separation is 640 feet.
13:46:34 Could you see the picture?
13:46:41 Thank you.
13:46:41 The closest facility is 640 feet.
13:46:45 To the west.
13:46:48 We did deny the petition based on the distance
13:46:51 criteria of being a special use 1 application.
13:46:54 You will note the general standards, 27-269, and the
13:46:59 specific standards for this use on the bottom of page
13:47:02 2, 27-272 and page 3 of the staff report.
13:47:05 We did find the request inconsistent based on the knot
13:47:08 meeting that standard.
13:47:09 City Council does have the ability to grant the waiver
13:47:12 with the criteria of distance separation if you find
13:47:15 that they meet the general standards of the code
13:47:17 located on page 2 of the staff report.
13:47:19 I'm available for any questions.
13:47:30 >>THOMAS SCOTT: Any questions?
13:47:32 Okay, petitioner?
13:47:35 >>> I'm Sherry Johnson, the owner of that property,
13:47:41 and if you guys give me permission to be able to use
13:47:45 that area for not a group home but a family care home
13:47:53 environment for those that have minor disability, and
13:47:58 it's a five bedroom that I actually raised my kids in,
13:48:01 and now I have moved on and would like to use the
13:48:07 property to serve the community.
13:48:20 >>THOMAS SCOTT: Council?
13:48:24 Is anyone here that wants to address council on this
13:48:27 Anyone else wish to address council?
13:48:29 Anyone else wish to address council on this appeal?
13:48:35 >>MARTIN SHELBY: I see no one.
13:48:38 >>JOHN DINGFELDER: Question to staff.
13:48:41 Cathy, do we distinguish -- do we have any categories
13:48:45 in regard to the ACLS?
13:48:49 >>CATHERINE COYLE: Congregate care facility in our
13:48:51 regulations and it's a 1200-foot separation between
13:48:55 these places of use and also professional residential
13:48:58 facility which could be drug treatment, could be a
13:49:02 life care facility.
13:49:03 >> And the distance separation in our code is, what,
13:49:07 >>> 1200.
13:49:11 >>JOHN DINGFELDER: Just for future reference, why do
13:49:13 we have 1200?
13:49:14 Do you have any historical knowledge on that?
13:49:17 >>> The basic standard is 1,000 feet, for the six beds
13:49:21 or less.
13:49:21 If you happen to be within the distance of 1,000 feet
13:49:24 you can apply through the S-1 to get up to eight beds,
13:49:28 the distance increases to 1200, because you have a
13:49:30 larger number of beds.
13:49:34 It's the types of uses.
13:49:36 In a congregate care facility it could be different
13:49:39 types of people.
13:49:40 It doesn't necessarily have to be just disabled people
13:49:42 or people with certain visible challenges.
13:49:44 County be different types of people.
13:49:48 That's about as much as I can say about it.
13:49:53 >>CHARLIE MIRANDA: In your professionalism that you
13:49:56 are very good in, and your knowledge of these types of
13:49:59 things, has the city ever granted these things within
13:50:03 1,000 feet or within 1200 feet or within 1500 feet or
13:50:09 >>CATHERINE COYLE: Yes.
13:50:10 >>CHARLIE MIRANDA: That's what I thought you were
13:50:12 going to say because I know you are very smart.
13:50:14 >>CATHERINE COYLE: Thank you.
13:50:15 >>JOHN DINGFELDER: Move to close.
13:50:19 >> Second.
13:50:19 >>THOMAS SCOTT: All in favor?
13:50:22 By saying Aye?
13:50:23 What's your pleasure?
13:50:24 Councilman Dingfelder.
13:50:25 >>JOHN DINGFELDER: I'll move to approve this and grant
13:50:27 the waiver.
13:50:29 Move an ordinance as follows, an ordinance approving a
13:50:31 special use permit S-1 on appeal from a decision of
13:50:35 the zoning administrator approving a congregate living
13:50:37 facility five beds in the city of Tampa, Florida as
13:50:42 more described in section 1 as set forth herein
13:50:47 providing an effective date.
13:50:49 >>THOMAS SCOTT: Seconded by councilman Miranda.
13:50:54 >>THE CLERK: Motion carried with Saul-Sena being
13:50:56 Second reading and adoption will be held on June
13:50:58 25th at 9:30 in the morning.
13:51:05 >>THOMAS SCOTT: The next item, item 70, is a continued
13:51:08 public hearing.
13:51:11 Continued appeal hearing.
13:51:12 >>MARTIN SHELBY: Mr. Chairman, there are several
13:51:15 preliminary matters.
13:51:17 And I believe, Mr. Territo, is this the time you wish
13:51:21 to take up those matters?
13:51:26 Do you want items first with regard to the procedures?
13:51:29 Let me do that at the very outset.
13:51:33 Members of council and attorneys for the parties, I
13:51:43 have been informed by Mr. Caetano, council member
13:51:47 Caetano, that a business entity that he has been
13:51:51 associated with has retained Mr. Bentley as his
13:51:57 Is that correct?
13:51:59 >>JOSEPH P. CAETANO: Yes.
13:52:01 >>MARTIN SHELBY: Now, sir, that being the case, I ask
13:52:04 you with regard to the matter you have before you, can
13:52:08 you put that fact aside and have it have no influence,
13:52:14 in other words, will you be able to render airfare and
13:52:17 impartial decision based on the matter before you
13:52:20 >>JOSEPH P. CAETANO: Yes, sir.
13:52:20 >>MARTIN SHELBY: Thank you.
13:52:45 >>DAVID MECHANIK: 305 South Boulevard, Tampa, Florida.
13:52:50 I am here on behalf of the university of Tampa.
13:52:53 Out of no disrespect to Mr. Caetano, I just want to
13:52:56 state for the record we have no knowledge about that
13:52:58 business relationship, and so I really can't comment
13:53:02 on whether the statement regarding the appropriateness
13:53:07 of decision not to recuse himself is appropriate.
13:53:11 So I would just like to note that for the record.
13:53:15 No disrespect to you, Mr. Caetano, I just need to note
13:53:19 that for the record.
13:53:20 Thank you.
13:53:31 >>SAL TERRITO: Legal department.
13:53:33 I will not be speaking to the merits of the case.
13:53:34 That will be done by someone else.
13:53:36 As you are aware by now a motion was filed or
13:53:38 attempted to be filed to remand this back to the VRB.
13:53:42 It was my recommendation that you not consider that
13:53:46 motion, not because the motion was faulty but because
13:53:49 it was my opinion that the motion contained
13:53:51 information that was not appropriate for you to see,
13:53:54 when dealing with newly discovered information, and it
13:54:00 was enough information in the motion to tell what you
13:54:01 the information was.
13:54:02 You as you know are not allowed to consider anything
13:54:04 except the record below.
13:54:06 And since this motion contained information that
13:54:09 wasn't in the record below, I didn't think it was
13:54:11 appropriate for you to actually see the motion.
13:54:15 Let me give you a little bit of an idea of how you do
13:54:18 You have the authority to remand, but because newly
13:54:22 discovered information was found after the hearing,
13:54:24 that is not one of your grounds for remand.
13:54:26 Let me go through the grounds very quickly to give you
13:54:29 an idea of what you can do a remand for.
13:54:31 This is in our opinion not bun of the -- one of the
13:54:35 items that you can remand.
13:54:36 What you are looking for here since you are in an
13:54:39 appellate capacity you have a much narrower role than
13:54:43 you would normally have in your legislative capacity.
13:54:47 What you are looking for is whether the VRB decision
13:54:48 is supported by competent substantial evidence. What
13:54:50 we mean by competent substantial evidence, it's
13:54:52 evidence that a reasonable person would expect to
13:54:54 support a conclusion that was reached.
13:54:57 It's a fairly modest standard.
13:55:01 Whether due process what was accorded.
13:55:03 Generally we are talking about was notice accorded,
13:55:04 was there an opportunity to be heard, did you have an
13:55:06 opportunity to be represented by someone at a
13:55:09 particular hearing?
13:55:10 If you find that those two have not been violated,
13:55:12 then you don't have grounds for a remand.
13:55:15 If you found either one of those has been violated,
13:55:17 then you do have grounds for remand.
13:55:20 The third one is whether the essential requirements of
13:55:23 the law have been followed.
13:55:24 In effect, did the VRB follow its own procedures in
13:55:27 this particular matter?
13:55:28 And if you find either of those three were violated,
13:55:33 then you don't have a ground for a remand, and you
13:55:36 notice that one of the markers that you don't see is
13:55:39 newly discovered information.
13:55:40 I wanted to bring that to your attention so you know
13:55:43 the standards that you are bound by.
13:55:44 And I am putting that out because I'm sure the other
13:55:46 two gentlemen will have something to say about that
13:55:49 issue, but that is the reason the e-mails and memos
13:55:50 were going back and forth, and I was suggesting that
13:55:52 you don't read the memo because I thought there was
13:55:54 information in there that was not relevant to this
13:55:56 hearing because it wasn't information that was in the
13:55:59 lower hearing.
13:55:59 And that's all I really wanted to say on that issue.
13:56:08 >>JOHN DINGFELDER: My point of order.
13:56:09 >>THOMAS SCOTT: Before we move forward, I guess I need
13:56:12 to hear from counsel, how do we need to proceed then,
13:56:16 given the outline by Mr. Sal Territo?
13:56:20 >>SAL TERRITO: I should have made a suggestion.
13:56:23 This is obviously your call.
13:56:24 If you decide to not accept the motion for remand on
13:56:26 those grounds, I would suggest that you allow
13:56:28 Mr. Mechanik to proffer the evidence that he wants to
13:56:31 put in there, and Mr. Bentley to put his information
13:56:34 as well, so at least it's in the record, and if this
13:56:36 goes any higher than this body to a court they will
13:56:39 have that information available to them to see whether
13:56:41 we should have done that the way or not.
13:56:43 But it gives them an opportunity to say save that
13:56:45 information for appeal, but at the same time you are
13:56:47 not reviewing it, you are not considering it as part
13:56:49 of your record.
13:56:50 >>THOMAS SCOTT: Councilman Dingfelder, then
13:56:52 councilwoman Mulhern.
13:56:53 >>JOHN DINGFELDER: The proffer is kind of interesting
13:56:56 because are you saying they need to proffer it without
13:56:59 us reading it, which is -- it's a little strange
13:57:05 because we are not the jury, we are the judge.
13:57:09 >>> I have had cases where I have had the judge ask me
13:57:13 to proffer the information because he didn't want to
13:57:14 see it, he walked out of the room. I have had that
13:57:17 So what I am trying to do is give both of them their
13:57:20 rights by allowing them to have the information they
13:57:22 think is pertinent in the record so that a circuit
13:57:24 judge, if it gets to that point, can review it and he
13:57:27 or she will have that information.
13:57:28 I don't think it's information you should consider
13:57:30 because it's dealing with newly discovered
13:57:33 That's the reason.
13:57:34 I'm trying to have it both ways for them.
13:57:36 I'm trying to protect the integrity of the process,
13:57:39 that's all I am trying to do.
13:57:41 >>JOHN DINGFELDER: It's a little unusual but that's
13:57:43 The reason I said point of order earlier, and I
13:57:45 discussed this by e-mail with Mr. Territo, yesterday I
13:57:48 got Mr. Mechanik's motion by e-mail, as did the rest
13:57:51 of council.
13:57:54 And I read it.
13:57:55 Subsequently, about 20 or 30 minutes later I got an
13:57:58 e-mail indirectly from Mr. Territo that said don't
13:58:01 read it.
13:58:02 It was too late.
13:58:04 So the cat was already out of the bag.
13:58:06 So I read it.
13:58:08 And I just wanted to disclose that.
13:58:10 And I actually followed that up with an e-mail saying
13:58:14 if Mr. Bentley has a response motion, or a response
13:58:17 pleading, then out of fairness I would read that, too.
13:58:22 But I didn't get that, I don't think, from
13:58:24 Mr. Bentley.
13:58:24 But, anyway, I just wanted to disclose that.
13:58:28 I don't know if that changes anything as far as Mr.
13:58:30 Territo is concerned or as far as council is
13:58:32 But I did read the motion.
13:58:34 It did not include the exhibits.
13:58:36 So it wasn't very substantive in nature.
13:58:39 But, anyway, that's the story.
13:58:44 >>SAL TERRITO: I guess we can ask the same question as
13:58:46 Mr. Caetano, if there was newly discovered information
13:58:49 can you ignore that while you make your decision on
13:58:51 this particular matter when it gets to you?
13:58:53 >>JOHN DINGFELDER: Can I put that information aside
13:58:58 and make my decision without that information?
13:59:01 >> Yes, because it cannot be based on that.
13:59:03 >>JOHN DINGFELDER: Yes, I can do that.
13:59:06 >> That's all I can ask at this point.
13:59:08 >>MARY MULHERN: Okay, I didn't read the memo.
13:59:12 But I have them in front of me and I am not reading
13:59:16 I am just looking at the dates.
13:59:17 What I don't understand what we are doing right now.
13:59:23 Mr. Mechanik is making a motion.
13:59:26 Is he making this motion to remand?
13:59:29 >>> Yes, ma'am.
13:59:29 >> To remand it?
13:59:31 >> Yes.
13:59:32 >> So you are not telling us -- you are telling us
13:59:34 what we can make our decision on this motion based on
13:59:38 and saying that we can't look at the new evidence.
13:59:41 I understand that.
13:59:42 But what it sounded to me is you were telling us that
13:59:46 we couldn't vote on the motion.
13:59:49 That's our job to vote on this motion, right?
13:59:53 >>SAL TERRITO: The problem was I think the motion
13:59:55 contained more information than I would have liked to
13:59:58 have seen in there.
13:59:59 The motion is still before you.
14:00:01 You can rule on the motion.
14:00:02 But you can't rule on the motion based on the fact
14:00:04 that there's an allegation that there's new evidence.
14:00:08 That's the point I was trying to make.
14:00:09 >>MARY MULHERN: And the allegation -- okay.
14:00:13 I feel like we need to hear this from the attorneys.
14:00:16 Because without --
14:00:21 >> They are going to.
14:00:23 >>MARY MULHERN: Right.
14:00:24 >> It's a difficult situation.
14:00:26 I understand Mr. Mechanik -- he's trying to raise an
14:00:30 issue that he's not allowed to explain.
14:00:32 But the explanation in itself may taint your decision.
14:00:35 That's what I was trying to avoid.
14:00:36 >>MARY MULHERN: But I feel this process, you are
14:00:39 standing there asking acting as the judge when we are
14:00:43 supposed to be the judge.
14:00:44 >>SAL TERRITO: I am only giving you a recommendation.
14:00:47 >>MARY MULHERN: You are giving us the recommendation.
14:00:48 >>SAL TERRITO: Yes. It's your call how you want to
14:00:50 handle that matter.
14:00:51 There are grounds for remand other than this one if
14:00:53 you think you want to look at those as well.
14:00:55 You are going to be hearing the entire appeal.
14:00:57 I'm only here to give you that one procedural matter
14:00:59 and I'm stepping aside.
14:01:01 Other people are going to argue these things to you.
14:01:02 >>MARY MULHERN: Right.
14:01:03 But the appeal is separate from this motion.
14:01:05 First to hear the motion.
14:01:07 Then we are going to --
14:01:08 >>SAL TERRITO: If you hear the motion, then you have
14:01:10 no hearing.
14:01:13 >>THOMAS SCOTT: Well, the problem that we find
14:01:15 ourselves in -- and I'm used to a different process,
14:01:19 and I think we all know that but I won't dwell on
14:01:26 The problem is this business about hearing new
14:01:29 evidence, you generally don't get evidence, period.
14:01:32 You vote it down.
14:01:34 We don't want to do that again.
14:01:36 That's been a standard practice and procedure.
14:01:39 Wee we reject the new information because it wasn't a
14:01:41 part of the record coming from whatever board, the VRB
14:01:44 in this case.
14:01:45 Now they are going to make a motion, and they talk
14:01:47 about evidence, and you have heard the evidence, which
14:01:52 puts you in a very peculiar situation, because now you
14:01:56 heard all the new information, and then you are going
14:01:58 to try to hear the appeal as well, even if you reject
14:02:03 to send it back.
14:02:04 You have heard the new evidence.
14:02:08 >>JOHN DINGFELDER: But as a judge, we are bound to put
14:02:10 that new evidence -- any additional evidence we might
14:02:14 have heard, we are bound to put it aside and not deal
14:02:17 with it, which frankly I think respect intellectually
14:02:22 we should be able to do.
14:02:23 That's what judges do sometimes.
14:02:25 And frankly that's what jurys do sometimes, because if
14:02:29 some information comes to the jury, and the judge --
14:02:31 and there's an objection, the judge will sustain the
14:02:34 objection and say jury, I direct you to disregard that
14:02:38 lawyer's last comments, they were inappropriate for
14:02:41 you to hear.
14:02:41 >>SAL TERRITO: what I was trying to say is new
14:02:45 evidence is not one of your grounds for remand.
14:02:48 That's all I'm trying to say.
14:02:49 >>THOMAS SCOTT: That's my point.
14:02:50 We shouldn't hear the information because then even if
14:02:56 you vote not to send it back, you have heard the new
14:02:58 information, and it should not be a part of our
14:03:01 >>MARY MULHERN: Thank you.
14:03:04 I think that you were getting at what I was trying to
14:03:07 say, was that whether we like it or not, we have to
14:03:11 act in this quasi-judicial capacity, which some of us
14:03:15 don't feel that we would rather not have to do.
14:03:21 Anyway, the point is, we are the judge, the
14:03:29 So we are going to make the -- we should be making the
14:03:32 decision based on your advice, because we are not
14:03:37 lawyers, we have to rely on our attorney's advice.
14:03:40 We should be making the decision on the evidence.
14:03:45 And as Mr. Dingfelder said, if it doesn't meet the
14:03:51 standard for remand, that's our decision.
14:03:54 I mean, I don't understand how you can tell us not to
14:03:58 look at the evidence.
14:04:01 I guess that's the challenge.
14:04:04 That's the challenge that Mr. Bentley --
14:04:08 >>MARK BENTLEY: I think both gentlemen want to speak
14:04:10 to this issue and you can question them on those
14:04:12 issues if you like.
14:04:13 >>THOMAS SCOTT: Well, my concern, council, is --
14:04:17 >>MARY MULHERN: Can I finish?
14:04:19 >> Okay.
14:04:19 >>MARY MULHERN: So my point is that this is our job
14:04:22 and we have to go ahead and do it so let's just do it.
14:04:24 Let's hear the motion for the remand.
14:04:35 I think it's our job to make that decision whether the
14:04:37 evidence presented justifies or meets those criteria,
14:04:42 and that's our job to do that so we should do it.
14:04:45 I don't think it the it is correct for anyone to tell
14:04:47 us not to listen to or to read the evidence.
14:04:51 You are not telling us that?
14:04:53 >>SAL TERRITO: No, what your rules are.
14:04:55 I am not telling you what to do, obviously not.
14:04:57 >>THOMAS SCOTT: Okay.
14:05:00 >>CHARLIE MIRANDA: I can attest that my aide did call
14:05:04 and say there is a memo from Marty, that's the City
14:05:07 Council attorney, saying not to read any memos from
14:05:09 Mr. Bentley or Mr. Mechanik, which I haven't seen or
14:05:12 read, and I don't know what time that came in, was
14:05:16 that one before the other two came in?
14:05:18 I don't know because I never saw them.
14:05:20 I don't care to see them.
14:05:22 You know, this is a perfect example of something that
14:05:26 heats up the neighbors -- and thank you for coming,
14:05:29 all of you.
14:05:31 A budget of over 850 million and very few of you are
14:05:37 But today, we are going to pass judgment on whether
14:05:39 something can happen or not happen, and now what's
14:05:41 going to happen?
14:05:43 Whoever wins, because there really are no winners
14:05:47 here, they are going to end up in court because the
14:05:49 other side is going to appeal.
14:05:51 So this has gone -- all the information that's there.
14:05:59 It takes 14 Philadelphia lawyers and a law firm with
14:06:03 so many associates to go through that.
14:06:06 And that's why I have always said that some of these
14:06:08 cases, maybe not all of them -- we are not talking
14:06:11 about two-inch overhang on a setback.
14:06:17 The no matter what happens here today, there is enough
14:06:23 resources on both sides that this is going to go and
14:06:29 end up in court.
14:06:30 That's just my opinion.
14:06:31 So judge Charlie on channel 28 this year will decide
14:06:34 this case, just like judge Judy does it on television.
14:06:42 And here is where we are going -- go and hear the
14:06:50 >>THOMAS SCOTT: I guess we -- yes, sir.
14:06:54 >>MARTIN SHELBY: Council, it would be my
14:06:55 recommendation -- and to state that what Ms. Mulhern
14:06:59 said, I believe, is the best course of action.
14:07:02 And should there come a point in time that you do hear
14:07:06 this and choose to remand it, then it would be
14:07:12 If you choose not to remand it, then you would have to
14:07:15 make sure that whatever source of your information
14:07:17 that you might have as to what you think the new
14:07:20 evidence is, that you must put that aside, and in no
14:07:25 way allow to the influence your decision.
14:07:27 That being said, I believe it would be appropriate for
14:07:29 both attorneys to be able to address council, to make
14:07:32 their argument as to why council should entertain the
14:07:38 motion that was made by Mr. Mechanik, and
14:07:40 Mr. Mechanik's motion, he should have the opportunity
14:07:42 to go first.
14:07:43 But rather than to get into it with a discussion of
14:07:46 what that evidence is, I think the discussion should
14:07:49 be on the merits of whether council should hear this
14:07:53 motion for remand, and entertain it.
14:08:01 >>THOMAS SCOTT: The question I have for this motion,
14:08:05 we are allocating how much time?
14:08:06 >>CHARLIE MIRANDA: It's probably your discretion.
14:08:11 >>MARTIN SHELBY: Council, I would say whatever you
14:08:13 do --
14:08:14 I know we have a process for the hearing.
14:08:16 But this is just on the motion.
14:08:17 >>MARTIN SHELBY: And this is quite outside the normal
14:08:20 course of the way council conducts its business.
14:08:23 So my suggestion would be either by motion and vote or
14:08:25 by unanimous consent, council sets forth a time.
14:08:29 I believe Mr. Mechanik would go first, Mr. Bentley
14:08:31 would respond, Mr. Mechanik would have an opportunity
14:08:33 for rebuttal.
14:08:35 But it should be fair to both parties.
14:08:37 So whatever council's pleasure.
14:08:40 >>THOMAS SCOTT: Five minutes, Mr. Mechanik?
14:08:43 >>DAVID MECHANIK: Mr. Chairman, if we could have ten.
14:08:47 We prepared.
14:08:48 >>THOMAS SCOTT: Ten minutes on the motion?
14:08:50 >>DAVID MECHANIK: On the motion.
14:08:51 And we will try to keep it below that.
14:08:52 It's a complicated issue.
14:08:53 >>THOMAS SCOTT: Mr. Bentley, ten minutes?
14:08:56 >>DAVID MECHANIK: We are making the motion so we have
14:09:03 a greater burden to go forward.
14:09:08 >>MARTIN SHELBY: If I can.
14:09:10 >>THOMAS SCOTT: Council, is ten minutes fine?
14:09:13 >>CHARLIE MIRANDA: Ten minutes is fine with me.
14:09:16 >>> Then a period of rebuttal?
14:09:19 >> Five.
14:09:20 >>DAVID MECHANIK: That's fine.
14:09:21 Thank you.
14:09:22 To be clear, are we addressing -- are we going forward
14:09:26 and arguing the motion?
14:09:28 You had initially said that we would speak as to
14:09:33 whether or not it was appropriate for council to hear
14:09:35 the motion.
14:09:36 So I just want to make sure, are we in fact going
14:09:38 forward to argue the motion itself?
14:09:43 >> What I would like to do at this point is entertain
14:09:45 a motion on hearing the motion, and vote on that way
14:09:49 everything is part of the record so it's going to end
14:09:51 up in court and all this stuff.
14:09:56 >>CHARLIE MIRANDA: As we just discussed ten minutes on
14:09:58 both sides and five minutes rebuttal.
14:10:02 >>MARY MULHERN: Second.
14:10:03 >>THOMAS SCOTT: There's a motion and second by
14:10:06 Councilwoman Mulhern.
14:10:07 (Motion carried)
14:10:17 >>DAVID MECHANIK: 305 South Boulevard, Tampa, Florida.
14:10:20 On behalf of the university of Tampa.
14:10:22 I would like to introduce my co-counsel, Susan fox,
14:10:25 who will take the arguments on the motion for remand.
14:10:29 Thank you.
14:10:31 >>> Susan fox, and I represent the University of
14:10:36 I am an appellate lawyer, and Mr. Mechanik asked me to
14:10:40 address the uniquely appellate aspects of this, and
14:10:46 did sign the motion on behalf of the university.
14:10:50 It sometimes happens when a case is pending on appeal
14:10:52 that there's newly discovered evidence in the trial
14:10:56 Everybody knows that you can't consider that in the
14:10:59 appeal, because it wasn't heard at the trial level.
14:11:03 In a court of law, there is a rule of procedure that
14:11:07 provides for a motion for release from judgment, and
14:11:11 there's a limited time window of that of one year for
14:11:14 things like newly discovered evidence, fraud, clerical
14:11:17 errors, things of that sort.
14:11:20 And when that happens, if the case is up on appeal at
14:11:24 that time, there's a bit of a problem, because the
14:11:26 appellate court then has exclusive jurisdiction.
14:11:31 Only the trial court can hear this issue, but only the
14:11:33 appellate court has jurisdiction.
14:11:36 So in that case when the appellate court should
14:11:42 relinguish jurisdiction back to the trial court to
14:11:47 hear the new evidence or to decide whether or not
14:11:48 to -- it wants revisiting the decision that was made.
14:11:53 The issue of whether or not to remand or where you
14:11:56 would say relinquish jurisdiction, it's a
14:12:00 discretionary act.
14:12:01 And in order to determine whether or not to exercise
14:12:05 your discretion, you basically have to look at the new
14:12:08 evidence and decide whether or not it warrants it.
14:12:11 Now, I'm really not going to get into that.
14:12:15 I am going to discuss the points of law as to what's
14:12:17 appropriate in your situation, and then we'll see
14:12:20 whether we get into the actual details of what the new
14:12:24 evidence would be.
14:12:28 But to clarify, the two different roles you are
14:12:34 wearing in this case, you don't consider any new
14:12:37 evidence for purposes of the appeal.
14:12:39 You set that aside and just not consider it the same
14:12:42 way you a judge would hear something that's
14:12:46 inappropriate you would set it aside and say, well, I
14:12:49 am not going to consider that.
14:12:51 But so you would disregard it if you decide not to
14:12:54 remand it.
14:12:54 Just go on with the appeal as if none of this would
14:12:59 ever happen.
14:12:59 So turning now to the issue of your authority to
14:13:05 remand in the situation, in the motion which we
14:13:10 prepared, which I realize all of you haven't seen, but
14:13:13 we presented the case law that says that an agency has
14:13:18 inherent authority to reopen some prior decisions as
14:13:24 long as that decision is still under the agency
14:13:26 control, so to speak.
14:13:27 And the leading case on that is people's gas versus
14:13:31 mason, the Florida Supreme Court decided, they said,
14:13:35 Florida is among those jurisdictions holding that
14:13:39 agencies do have inherent power to reconsider prior
14:13:42 orders that are still under their control.
14:13:45 However, this inherent authority to modify is a
14:13:49 limited one that is exercised only upon a change of
14:13:52 circumstances, or a demonstrated public need.
14:13:57 And I could go on and on and site different cases, but
14:14:00 this has he involved into what's called the
14:14:03 extraordinary circumstances standard, and it says
14:14:08 roughly the equivalent that the standard that applies
14:14:13 in several places, newly discovered evidence that
14:14:17 could possibly lead to a different result, if there
14:14:20 was some kind of injustice, if there were clerical
14:14:24 errors, things of that nature.
14:14:30 My next point would be as the municipal agency, you
14:14:34 are comparable to a state agency in applying this type
14:14:36 of extraordinary circumstances test, because you are
14:14:40 acting in a quasi-judicial capacity, which is
14:14:43 basically what a lot of state agencies do in deciding
14:14:47 these types of cases.
14:14:49 And in the people's gas case, Public Service
14:14:51 Commission deciding a public utility case, and a
14:14:55 quasi-judicial capacity, in which you have a duty to
14:14:58 ensure that due process is afforded to the affected
14:15:04 I believe the exceptional circumstances standard is
14:15:08 fairly well understood.
14:15:11 I could go into that a little more, but I cited the
14:15:16 If you have a witness that recants their testimony, if
14:15:19 there's something that a witness said that it was
14:15:24 discovered to be not true, but those would be the
14:15:27 types of cases which would be appropriate to remand to
14:15:30 consider new evidence.
14:15:32 In one of the cases we cited, the Maserat case, one of
14:15:37 the decision makers made an assumption that was proven
14:15:39 erroneous, and the facts came out after the hearing,
14:15:43 and the court found there was a correctable injustice
14:15:48 that had been done.
14:15:49 The case should be remanded.
14:15:53 So we are asking you, since there are really no rules,
14:15:58 as Mr. Territo explained to you, there's no rules that
14:16:00 specifically tell you what to do in this situation,
14:16:06 your scope of review is very similar to what a court
14:16:09 would have here in reviewing an administrative agency
14:16:13 decision, the identical three-point test that Mr.
14:16:17 Territo described to you.
14:16:19 And since the Supreme Court says you have this
14:16:21 inherent authority to revisit, that's what we are
14:16:25 asking you to do.
14:16:29 And I would point out one more case, which is a recent
14:16:32 case involving Charlotte County versus IMC.
14:16:39 In that case the agency looked at the -- at the
14:16:44 administrative law judge's decision and said, We still
14:16:46 have questions that weren't answered in this hearing,
14:16:50 and remanded it on that basis, and the court said,
14:16:53 That's fine.
14:16:54 If you looked at this record and you still have
14:16:57 questions about what took place, then remand it is the
14:17:00 appropriate thing to do.
14:17:04 Finally, I did cite one case in there, arcemanian
14:17:07 (sic) versus U.S. Bank National Association, a fairly
14:17:12 recent case out of the Fourth District Court of Appeal
14:17:15 that says we have to see the motion.
14:17:19 A party had filed a motion to relinquish jurisdiction
14:17:23 without filing the motion to reopen that had been
14:17:25 filed in the lower court.
14:17:26 And the appellate court said, We have to see your
14:17:29 motion to exercise our discretion properly.
14:17:31 We can't make this decision without looking at the
14:17:35 So I would suggest, once you make your determination
14:17:41 that this is within your proper role, that we go ahead
14:17:44 and look at the motion and you make your decision
14:17:47 Thank you.
14:17:51 >>DAVID MECHANIK: May I just ask, is council inclined
14:17:55 to actually hear the evidence?
14:17:57 We have been asked by city attorneys and council for
14:18:02 Retreat to, if you will, bifurcate or separate out the
14:18:05 And as you can tell, Ms. Fox did not discuss the
14:18:08 actual evidence.
14:18:09 So at this point I am in a quandary as to whether we
14:18:13 should speak about that to council or not, and your
14:18:18 preference we believe ifs appropriate for council to
14:18:20 consider that evidence, but we respect the wishes of
14:18:24 the various parties and would ask for direction from
14:18:30 >>THOMAS SCOTT: Council Dingfelder then Mulhern.
14:18:36 >>JOHN DINGFELDER: Well, I agree that we are all sort
14:18:38 of between a rock and a hard place, and we are
14:18:41 plowing, you know, new ground here.
14:18:44 With that said, I don't know how we can address your
14:18:49 motion in the abstract the way it's been presented so
14:18:52 far quite admirably by Ms. Fox, talking about the law.
14:18:57 So if we don't know what these extraordinary
14:19:00 circumstances are, then we are shooting in the dark.
14:19:04 So what I would suggest is that, yes, that we at least
14:19:10 get a sense of the facts that create, have allegedly
14:19:16 created these extraordinary circumstances.
14:19:20 Mr. Bentley will have an opportunity to -- within a
14:19:26 certain extent to the time constraints and then we can
14:19:28 make a decision on the motion itself, and then, if we
14:19:31 decide not to remand, then we can all swear that we
14:19:37 are not going to pay attention to those facts that we
14:19:39 just heard and move forward ourselves.
14:19:41 And I think like I said earlier, I think we have the
14:19:44 capability of doing that intellectually.
14:19:47 >>MARY MULHERN: I believe we voted to hear the motion
14:19:50 Mr. Miranda made, the motion to hear the motion, so we
14:19:53 are ready to hear the motion.
14:19:54 >>JOHN DINGFELDER: What he needed clarification on do
14:19:59 we also want to hear the facts that go with it?
14:20:02 >>MARY MULHERN: I thought that's what we voted on.
14:20:05 >>JOHN DINGFELDER: If that's the intent of the motion,
14:20:06 that's fine.
14:20:12 >> I want to be clear because I don't know whether
14:20:14 council is clear on that because the ten minutes, they
14:20:17 did not use the full time.
14:20:18 I was not clear on that point.
14:20:20 >>DAVID MECHANIK: I was not clear on that point, and I
14:20:23 would ask for three or four additional minutes and go
14:20:26 through the evidence briefly.
14:20:27 >>MARTIN SHELBY: Council, can I inquire of Mr. Territo
14:20:32 for just a minute, please?
14:20:36 My suggestion would be this.
14:20:52 For the sake of clarity in the record, for the sake of
14:20:55 keeping the issues separate, you are halfway through
14:21:01 hearing one side -- or you have you have heard one
14:21:05 side of the issue whether to hear.
14:21:06 My suggestion is let Mr. Bentley address that, keep it
14:21:11 Then after hearing all those facts you may very
14:21:13 welcome to that same decision but then you will have
14:21:14 had the opportunity to hear both parties.
14:21:18 >>JOHN DINGFELDER: The law right now and then make a
14:21:20 decision whether we are going to move into the facts?
14:21:22 >>MARTIN SHELBY: Exactly.
14:21:23 Thank you.
14:21:23 >>DAVID MECHANIK: We are fine with that.
14:21:26 >>JOSEPH P. CAETANO: I was going to say the same thing
14:21:28 as Mr. Dingfelder said.
14:21:29 If we are going to vote on it, we have to hear the new
14:21:32 So what you are saying now that Mr. Bentley is going
14:21:37 to speak --
14:21:39 >>MARTIN SHELBY: As to whether his client believes
14:21:40 that he should legally be able to hear it and allow
14:21:43 him to put his argument on the record, and then that
14:21:46 being said, allow Mr. Mechanik to have a brief
14:21:48 rebuttal if he wishes, and then council can take up
14:21:51 that issue, and then council can make that decision,
14:21:53 putting that issue aside and move on to the next
14:21:57 >> So we are still not going to hear the new evidence.
14:22:00 >>MARTIN SHELBY: Might.
14:22:02 Have not come to that point yet.
14:22:04 Because Mr. Bentley hasn't had opportunity to respond
14:22:07 to this portion of the argument.
14:22:09 >> Does Mr. Bentley know what the new evidence is?
14:22:11 >>JOHN DINGFELDER: Who knows?
14:22:14 >>MARTIN SHELBY: And by the way, I don't think that's
14:22:17 necessarily relevant for this discussion at this
14:22:19 >>JOSEPH P. CAETANO: Okay.
14:22:24 >>MARK BENTLEY: Good afternoon.
14:22:26 My name is Mark Bentley.
14:22:27 I represent The Retreat of Tampa LLC.
14:22:30 For the record, we object to the propriety of these
14:22:35 We are in litigation with the city over the
14:22:36 appropriateness of this process, and we are here to
14:22:40 defend our clients' rights solely.
14:22:42 That being said, Mr. Territo hit the nail on the head.
14:22:46 The only basis for remand under section 27-373-8 is a
14:22:50 remand to consider the evidence already in the record.
14:22:53 There is nothing in any rule, procedure or any code
14:22:56 that allows to you do that.
14:22:58 And my co-counsel is going to address that in a
14:23:01 Also, we need to proffer the documents that were
14:23:08 referenced before, which is our memo of law, response
14:23:13 to the university of Tampa's.
14:23:17 We had filed those with the city attorney about a
14:23:19 month ago.
14:23:21 Let me continue.
14:23:23 Imagine this.
14:23:24 If you all remand back to the VRB, what you are going
14:23:27 to hear if you do hear the evidence is we have got
14:23:29 some compelling evidence that we are not sure might
14:23:32 change their decision, reverse their decision.
14:23:34 So give us another shot at the case, let's redo, let's
14:23:38 retry the case.
14:23:39 That's prohibited in your code and under the law.
14:23:42 And can you imagine this?
14:23:44 If we go down again the VRB reverses itself, I'll be
14:23:48 back here in a couple months probably telling you,
14:23:51 hey, I have got some great evidence, give me another
14:23:53 shot, I think I can sway the VRB.
14:23:56 So it's a never-ending process.
14:23:58 That's why your appellate rules are set up the way
14:24:00 they are.
14:24:02 Right now what I would like to do is bring up my
14:24:05 co-council, Mr. Thomas Elligett, a board certified
14:24:11 appellate lawyer, recognized as probably one of the
14:24:13 leading appellate lawyers in the State of Florida.
14:24:15 Tom is also a professor of law at Stetson college --
14:24:19 Stetson university college of law where he teaches
14:24:22 appellate law.
14:24:23 So Tom?
14:24:25 >> Good afternoon, council.
14:24:28 Tom Elligett, 3003 west Azeele street.
14:24:33 Mr. Territo already outlined for you your appellate
14:24:37 review is very narrow. You have only three things you
14:24:39 look at under your appellate review.
14:24:41 Competent substantial evidence, was due process
14:24:44 accorded and whether the essential requirements of law
14:24:46 have been observed, which is really a fancy way of
14:24:49 saying they have to show not just the VRB was wrong
14:24:51 but that it made a major error of law.
14:24:54 And I don't think you are everyone going to hear that
14:24:57 contended when you get to the appeal part.
14:24:59 There's no question due process was accorded here.
14:25:02 The university -- the materials that are in question
14:25:04 here were filed with the city in December of 2007.
14:25:10 The University of Tampa was notified of the VRB or at
14:25:14 the initial recommendation in March of 2008.
14:25:17 They have from March of 2008 all the way to December
14:25:20 of 2008 when that hearing took place before the VRB to
14:25:25 do whatever research, whatever due diligence they
14:25:28 wanted to and la for information.
14:25:31 They now contend some three months after that that
14:25:33 they found something newly discovered, not that it's
14:25:35 new, but that they newly discovered something.
14:25:39 I think on the grounds that Mr. Territo discussed we
14:25:41 shouldn't even need to get to that because as I will
14:25:44 talk about in a moment your remand authority doesn't
14:25:46 include newly discovered evidence.
14:25:47 We dispute that it is.
14:25:48 We dispute there was any diligence in finding it.
14:25:51 But even if we got to that, that's not a basis.
14:25:54 When you look at your code, your revised code, remand
14:25:58 is limited, says the council may remand the matter to
14:26:01 the board of commission for further proceedings with
14:26:03 direction on how the board of commissioners failed to
14:26:05 comply with the above standards.
14:26:07 That's the three standards we talked B.no competent
14:26:10 substantial evidence.
14:26:12 Lack of due process.
14:26:13 Departure of essential requirements of law.
14:26:15 None of those exist here.
14:26:17 No basis for remand exists here.
14:26:21 You can only remand if one of those was violated,
14:26:23 namely, one party can't come in and say, oh, I thought
14:26:27 of something knew, I have some new evidence, I want a
14:26:30 At nine months, I didn't find this, I want a do-over.
14:26:33 That's not the role of this panel sitting as an
14:26:37 appellate tribunal.
14:26:39 If you would like I can certainly address the cases
14:26:45 you were told about, which are in the memo that
14:26:47 council has and has our response.
14:26:50 Those are cases where somebody came forward.
14:26:52 There was somebody, for example, one case in the
14:26:55 Missouri case you heard about, one party was
14:26:58 preaffected from getting an affidavit because the
14:27:00 person who they wanted to get the affidavit from was
14:27:02 being prosecuted themselves or was under a charge and
14:27:04 they wouldn't do it.
14:27:05 And when it became available later on they were able
14:27:08 to get it.
14:27:09 There's nothing like that here.
14:27:10 There's no suggestion of that here.
14:27:12 This is information that could have been reviewed, has
14:27:14 been there the whole file, is what The Retreat's
14:27:20 petition is based on, has been with the city since
14:27:22 December of 2007.
14:27:24 The hearing was in December of 2008.
14:27:27 Unless there are any questions, we would ask that you
14:27:30 not remand it.
14:27:31 Thank you.
14:27:39 >> Finished?
14:27:40 >> I just want to make sure you were finished with
14:27:43 your time.
14:27:43 Then I will allow council to raise any questions.
14:27:47 I want to make sure that you are finished with your
14:27:49 presentation first.
14:27:51 >> I guess one final comment.
14:27:53 You heard mention in Charlotte County decision.
14:27:54 If you look at that opinion, talking about a published
14:27:57 opinion, you will see, it wasn't just a remand, this
14:28:00 or that.
14:28:01 The council itself, county, was up before that.
14:28:04 They thought of a new issue.
14:28:06 They thought of a new issue and the opinion says the
14:28:08 new issues were not and could not have been addressed
14:28:11 at the initial administrative hearing.
14:28:13 Because it was a new issue they thought of -- that
14:28:16 they thought of, that they wanted a dressed.
14:28:18 Not some piece of evidence that we would dispute is
14:28:22 new or shows anything anyway on the merits.
14:28:24 But clearly was discoverable.
14:28:26 It was there in the records, the city records all this
14:28:34 >>MARK BENTLEY: To follow what Tom said.
14:28:36 I think they are going to bring up a public record
14:28:38 that was in the city files since December of 2007, was
14:28:44 filed with the VRB, was verified --
14:28:48 >>JOHN DINGFELDER: I have a point of order objection.
14:28:49 We said we are not going into the facts.
14:28:51 He's already rebutting the facts when all we are
14:28:54 supposed to be talking about is the law.
14:28:55 Mr. Shelby?
14:28:56 That's a point of order, Mark.
14:28:58 Just one second.
14:28:59 >>MARTIN SHELBY: I would believe the purpose is to
14:29:01 rebut what the argument was by Mr. Mechanik rather
14:29:03 than raising a new point, if you can, sir.
14:29:06 >>MARK BENTLEY: That's fine.
14:29:07 >>JOHN DINGFELDER: The if it's the facts we will go to
14:29:10 the facts.
14:29:12 >>MARK BENTLEY: All I want to emphasize, there was a
14:29:14 record there in front of the VRB, none of records were
14:29:18 challenged is as not being authentic.
14:29:22 So they had a year to do their due diligence.
14:29:25 Maybe they didn't do their job.
14:29:27 And not prepared to rebut what you are going to hear
14:29:33 as the newly discovered evidence.
14:29:36 So thank you very much.
14:29:41 >>THOMAS SCOTT: Councilman Dingfelder, you have a --
14:29:44 you have a question?
14:29:45 >>JOHN DINGFELDER: I have gill give you the same
14:29:47 chance to answer the question.
14:29:49 Ms. Fox brought up this issue of extraordinary
14:29:52 And which we are familiar with.
14:29:54 I think both at the trial level and at the appellate
14:29:57 I think the rules in both as I recall.
14:30:01 I could be wrong.
14:30:03 But, anyway, give me your take on that, and also, I
14:30:07 don't know if you rebutted the gas case she was
14:30:12 referring to.
14:30:13 >>> I think that language was taken from the gas case.
14:30:18 The case law used a lot of general terminology like
14:30:21 extraordinary circumstances, and newly discovered.
14:30:23 You have to fit within the criteria for the remand.
14:30:27 Your criteria for remand are very narrow.
14:30:31 If you determine that the VRB failed to do one of the
14:30:34 three things it had to do, newly discovered evidence
14:30:37 is not one of those three things.
14:30:38 As we point out in our memo, even if you were to say,
14:30:43 okay, we are going to ignore, we are going to say, you
14:30:46 know, maybe there's a question about this one piece of
14:30:49 evidence, which is all this is talking about, one
14:30:52 piece of evidence. There was a bunch of other
14:30:54 evidence in front of the VRB that you will hear when.
14:30:57 The fact you think that piece of evidence isn't any
14:31:00 good, or should have been disregarded, does not affect
14:31:02 the other evidence that was in front of the VRB.
14:31:05 >> But why shouldn't we go and let the VRB hear that
14:31:13 and come to the same conclusion you are coming to and
14:31:15 say, now what?
14:31:18 That's incidental, that doesn't change our mind, we
14:31:20 are going to stick with our decision, we are going to
14:31:22 send it back to council, as compared to the exercise
14:31:25 we are going through right now.
14:31:26 >>> Two reasons.
14:31:28 One, a practical one, and that we have a business
14:31:31 owned by citizens here who do not have an unending
14:31:35 string of money.
14:31:36 They need this to come to conclusion.
14:31:38 The second one is the same reason we don't let people
14:31:40 come in routinely and say, now, there was a piece of
14:31:43 evidence I could have had, had I just gone and looked
14:31:46 for it, I could have had it and could have put it in,
14:31:48 it might have made a difference, let me have a new
14:31:52 That doesn't fly as you know.
14:31:53 That doesn't work.
14:31:53 >> Unless you can show extraordinary circumstances and
14:31:56 due diligence.
14:31:57 >>> Well, the extraordinary circumstances would have
14:31:59 to be that it was something they could not have
14:32:01 All of these cases, the affidavit, you could not have
14:32:04 discovered it.
14:32:05 You had a witness who recanted testimony.
14:32:07 That's not what's happening here.
14:32:09 Simply because you come in later on and said, you
14:32:11 know, I would like to bring somebody in to contradict
14:32:13 this witness for this he had evidence.
14:32:15 That doesn't get you a new trial.
14:32:16 >> At this point, do we have enough information to
14:32:18 make that decision without hearing a little bit more?
14:32:21 I think we are kind of in a huge disadvantage because
14:32:24 we are hearing a lot of abstract law without really
14:32:26 knowing what the issue was.
14:32:27 >>> I could say two things.
14:32:29 Number one, they are describing it as newly
14:32:34 That's their description.
14:32:36 Newly discovered.
14:32:37 That's not sufficient for remand.
14:32:38 So that ends the discussion.
14:32:41 As a matter of law that's not sufficient for remand.
14:32:43 Number two, I do not think there will be any
14:32:46 disagreements that all the information that they are
14:32:48 going to tell but that they got is stuff that they got
14:32:52 by simply going to the city records, the public
14:32:55 records, the public library.
14:32:58 They could have down done that in nine months from
14:33:00 March of 2008 to December of 2008 when this was heard.
14:33:04 So they have no due diligence.
14:33:06 They have no extraordinary circumstances.
14:33:08 >>JOHN DINGFELDER: Thank you, Mr. Chairman.
14:33:12 >>THOMAS SCOTT: Councilwoman Mulhern.
14:33:14 >>MARY MULHERN: I have a question for Mr. Mechanik
14:33:17 after he --
14:33:19 Okay, five minutes for rebuttal.
14:33:21 >>DAVID MECHANIK: David Mechanik for the record.
14:33:24 To respond to one of Mr. Bentley's point first, and
14:33:27 then I will ask Ms. Fox to respond.
14:33:29 By the way, Ms. Fox is also certified as an appellate
14:33:35 The problem we face without getting into the evidence
14:33:39 itself is the same problem that this council wrestles
14:33:43 with on all of these very legalistic type cases.
14:33:46 The city procedures at the VRB and at the City Council
14:33:51 level do not call for the same form formality that you
14:33:54 have in a court hearing, and in particular we are
14:33:56 talking about the methods by which you authenticate
14:34:01 And I'm not going to get into that discussion unless
14:34:03 council deems it appropriate.
14:34:06 But the problem stems from the fact that we do not
14:34:09 have those formal procedures.
14:34:12 I suspect that City Council and the VRB would be
14:34:14 pulling its hair out if we all acted like lawyers,
14:34:18 exactly like we would in court.
14:34:20 And so with that in mind, I think you can better
14:34:23 understand the circumstances surrounding our motion
14:34:27 for remand.
14:34:28 And I'll leave it at that, because I don't want to get
14:34:31 into the evidence itself at this point.
14:34:35 >>MARY MULHERN: Okay.
14:34:40 Oh, I'm sorry.
14:34:41 Finish and then I'll ask my question.
14:34:46 >>> I'll be very brief.
14:34:48 In the cases that were cited in our memorandum
14:34:49 including the gas case, there were agencies that had
14:34:52 no specific rules about how to deal with these
14:34:58 So you are back to square one.
14:35:00 You had the hearing authority to do this.
14:35:03 It's discretionary.
14:35:05 It's just up to you to fashion a fair procedure for
14:35:08 doing so.
14:35:11 Second, whether it's something harmless or whether it
14:35:15 would have affected the VRB decision.
14:35:18 That's something that only the VRB can decide.
14:35:22 They have the fact-finding power.
14:35:25 You have the power to review that to find whether they
14:35:28 acted appropriately.
14:35:29 So the only way that issue can be addressed is to send
14:35:32 it back.
14:35:34 But it would be up to you to look at it and say, well,
14:35:37 this seems like a reasonable basis for sending it back
14:35:40 to us and evaluate it.
14:35:43 Finally, the point about whether or not it could have
14:35:47 been discovered and whether it was in the public
14:35:51 record, you really can't address that without finding
14:35:54 out what it is.
14:35:55 So but we have been disciplined and discrete in not
14:36:00 getting beyond what we are talking about here with the
14:36:03 But on that point, we really can't address it unless
14:36:05 we go further.
14:36:07 Thank you.
14:36:07 >>THOMAS SCOTT: Councilwoman.
14:36:10 >>MARY MULHERN: Mr. Fox or Mr. Mechanik, either one of
14:36:14 My question -- a couple of questions.
14:36:17 You are asking us -- your motion is for to us remand
14:36:21 this to the VRB based on new evidence.
14:36:24 Is that what the motion is?
14:36:28 That's all I need to know.
14:36:35 >>JOHN DINGFELDER: Could I ask one more question?
14:36:37 Mr. Mechanik.
14:36:42 I think he brings up another relevant question, which
14:36:45 is, could this, quote, new evidence, it could have
14:36:51 been discovered during the nine-month window that
14:36:57 Mr. Bentley and Mr. Elligett were referring to?
14:37:03 >>DAVID MECHANIK: I can answer that but it does tend
14:37:05 to get further into the substance of the new evidence.
14:37:08 >>JOHN DINGFELDER: Don't want you to go there because
14:37:10 that wouldn't be fair.
14:37:11 We haven't made that decision yet.
14:37:12 Do the best you can and answer that question.
14:37:14 >>DAVID MECHANIK: Okay.
14:37:16 I'll tread cautiously here.
14:37:17 The authentication of the evidence in question
14:37:24 appeared on its face to be legitimate without any
14:37:28 reason for any of us to have suspected it.
14:37:32 We learned -- and I won't even say how or where -- we
14:37:36 learned that there was a question about that.
14:37:38 We then did an investigation, and we determined that
14:37:41 there was -- these things again are a matter of
14:37:46 But if you saw the evidence, I think you could draw
14:37:48 your own conclusion.
14:37:51 But once we conducted this investigation, we
14:37:54 determined that the evidence submitted was not what it
14:37:59 was represented to be.
14:38:03 >>JOHN DINGFELDER: And your argument is that you
14:38:06 wouldn't have any way of knowing that until at or
14:38:08 after the VRB hearing because that's when it was
14:38:13 >>DAVID MECHANIK: Well, yes, sir.
14:38:14 Again, under the less formal procedures that the
14:38:21 boards that the city had, you don't get into things
14:38:24 like having the originator of a document testify under
14:38:27 oath that, yes, I prepared this document at such and
14:38:31 such a date, and that would be a typical thing would
14:38:33 you do in court.
14:38:34 That's not something this council or the VRB typically
14:38:39 And again I would think you all would be very
14:38:41 frustrated if the lawyers started to handle the
14:38:44 hearings that way.
14:38:45 So under those circumstances, in the context of
14:38:48 procedures that prevail at the city, we believe that
14:38:54 it was not necessarily something that we should have
14:38:59 or could have discovered.
14:39:01 >>JOHN DINGFELDER: Thank you.
14:39:04 >>THOMAS SCOTT: Any other questions?
14:39:12 >>MARTIN SHELBY: I don't believe there was rebuttal.
14:39:13 >>THOMAS SCOTT: The issue was, I was saying earlier --
14:39:17 are you finished? You were allocated ten minutes.
14:39:20 You were through presenting your case.
14:39:24 You were allocated ten minutes. You didn't use that.
14:39:26 That's why we have rebuttal. To go back and forth we
14:39:28 can't do that.
14:39:30 We'll be here all day.
14:39:31 Because at the end of the day Mr. Attorney for this
14:39:33 side will have to -- Mr. Mechanik will still have to
14:39:36 come back and rebut what you just said, and I don't
14:39:40 want to get into that.
14:39:41 What is your pleasure at this point, council?
14:39:43 >>MARY MULHERN: I would like to move to close this
14:39:51 public hearing.
14:39:52 >>CHARLIE MIRANDA: Second.
14:39:53 This part of the public hearing.
14:39:54 >>MARY MULHERN: This part of the public hearing on the
14:39:56 hearing on the motion.
14:39:57 >>THOMAS SCOTT: All you need is make a motion whether
14:40:00 to hear it, if you want to hear what he has or to deny
14:40:05 >>MARY MULHERN: I'll make a motion to deny hearing the
14:40:09 evidence on the motion and deny the request to remand
14:40:14 this to the VRB based on the fact that grounds have
14:40:19 not been presented to remand it based on the criteria
14:40:25 that we have been given.
14:40:26 I don't think there's any competent, substantial
14:40:30 evidence that would require that.
14:40:34 It doesn't look like due process was not afforded by
14:40:37 the VRB, and I don't think that there is the essential
14:40:41 requirements of law have not been followed.
14:40:44 I think the fact that Mr. Mechanik has based his
14:40:48 motion on new evidence, and that's what it's based on.
14:40:52 I don't think we even need to hear the evidence,
14:40:55 because it's new as stated by him.
14:41:01 So I am ready to just deny it.
14:41:03 >>THOMAS SCOTT: Councilman Dingfelder?
14:41:07 >>JOHN DINGFELDER: Well, it's definitely a tough one.
14:41:09 I think that any judicial body, whether or not it's
14:41:18 U.S. Supreme Court Florida, Supreme Court, USDA or
14:41:22 this little quasi-judicial body that we are today, I
14:41:25 think inherently we have a (6) extraordinary
14:41:30 And even though it's might not be written in our
14:41:34 rules -- and I'm a little surprised, Mr. Territo, that
14:41:37 you didn't necessarily recognize that, that there
14:41:40 might be some inherent authority that's not
14:41:42 necessarily spelled out in our rules.
14:41:44 If we go strictly by those rules, then I might have to
14:41:47 agree with Ms. Mulhern on her motion.
14:41:51 But I think that as a judicial body, I think at a
14:41:55 certain point that when there are unusual or ordinary
14:42:00 circumstances you have the right to address those and
14:42:03 possibly remand back under those circumstances.
14:42:07 I can't support the motion.
14:42:08 Frankly, my motion would have been -- but I won't do
14:42:11 it at this time, I'll see where this motion goes -- my
14:42:15 motion would have been let's hear the facts, that this
14:42:17 motion is addressing, and that way we can speak
14:42:20 articulately about the motion.
14:42:22 But I think right now none of us know what the facts
14:42:24 were that's underpinning the motion.
14:42:27 So therefore we are just shooting in the dark.
14:42:31 >>CHARLIE MIRANDA: Thank you, Mr. Chairman.
14:42:32 I have never shot anything into the dark at all.
14:42:35 But let me say this.
14:42:38 We have a competent and able attorney like Mr. Sal
14:42:44 Territo come up and say to us, as your attorney -- and
14:42:51 I have weighed both sides here and competent, both
14:42:54 attorneys here, both of these individuals here for or
14:42:58 against are represented by two very competent
14:43:01 Let me say this.
14:43:04 What our city tells us that you follow the rules, and
14:43:08 if you remand back only three issues in your mind,
14:43:17 without adhered to, was competent evidence presented
14:43:19 to you?
14:43:20 Was it due process?
14:43:21 Was were the requirements of the law adhered to?
14:43:25 And if they were, then how do you remand back?
14:43:32 It's compelling to me to say that it's very difficult.
14:43:37 I would like to hear.
14:43:38 But based on the law that we are here as judges, you
14:43:43 might say, quasi-judicial hearings, it's very
14:43:47 difficult to go an do something other than what was
14:43:52 presented to us by our own city attorney.
14:43:56 It would be contrary to the facts.
14:43:59 And the facts presented to us were those three items
14:44:03 mentioned by Ms. Mulhern, and I echo the same ones.
14:44:07 So, therefore, I will be going on and supporting the
14:44:11 motion made by council member Mulhern and seconded by
14:44:15 council member Caetano, I believe.
14:44:17 And there's where we are at.
14:44:19 I am not going to continue to speak.
14:44:20 But I think we are going to listen to the case after
14:44:23 we vote on this one issue.
14:44:25 And there's where I am at, Mr. Chairman.
14:44:29 >>THOMAS SCOTT: There's a motion on the floor that we
14:44:31 deny the motion at this time.
14:44:34 All in favor of the motion made by Councilwoman
14:44:36 Mulhern signify by saying Aye.
14:44:39 >>THE CLERK: Motion carried with Dingfelder voting no,
14:44:42 Saul-Sena being absent.
14:44:43 >>THOMAS SCOTT: So then the motion to remand has been
14:44:49 Now we will proceed with the hearing.
14:44:51 >>MARTIN SHELBY: Thank you.
14:44:55 >>THOMAS SCOTT: We outlined the process so each side
14:44:57 knows how much time they have, Mr. Shelby -- based on
14:45:03 what we outlined.
14:46:49 >>CHAIRMAN: Who is going first?
14:46:51 Are we ready to start again?
14:46:56 >>MARTIN SHELBY: Yes, thank you.
14:46:59 Members of City Council, you have before you several
14:47:03 items which I have distributed, and what they are, are
14:47:12 rules 6 of the City Council rules of procedure
14:47:14 governing quasi-judicial hearings, rule 9 governing
14:47:17 the amendments to City Council's rules, and then a
14:47:25 stapled grouping of pages that begin entitled Tampa
14:47:27 City Council hearing procedures for VRB 08-58
14:47:31 regarding property at 123 South Hyde Park Avenue.
14:47:36 Attached to those, council, are sections from the city
14:47:39 code, and I direct your attention to section 17.578
14:47:47 regarding appeal to the VRB and refers you to section
14:47:52 373-C of the city code which follows.
14:47:56 And if you notice on the next-to-the-last-page at the
14:48:02 very bottom, is number 8, the standard of review.
14:48:06 And that again is what Mr. Territo had discussed with
14:48:10 you at the outset of today's hearing, that how you
14:48:17 will base your decision, how you will engage your
14:48:25 What I have done, council, is to prepare the first
14:48:29 page, after meeting with both attorneys for the
14:48:36 petitioner and for the appellant, Mr. Bentley and
14:48:39 Mr. Mechanik, and per council rules for quasi-judicial
14:48:48 hearings, there are procedures set forth that do not
14:48:50 contemplate this sort of hearing.
14:48:53 This is a hearing where the appeal is brought by a
14:48:59 third party in, this case the University of Tampa.
14:49:01 Therefore the rules are really not adequate to ensure
14:49:08 due process.
14:49:09 So with that being the case I had the opportunity to
14:49:11 meet with both members, both attorneys, and to figure
14:49:15 out how best to ensure procedural due process for the
14:49:19 way this hearing will be conducted.
14:49:22 And the result of that meeting was as this process
14:49:28 So basically, Madam Chair, with your approval, I would
14:49:37 just like to go over it very quickly, just so it's
14:49:40 clear for all involved.
14:49:44 This would be to open the public hearing.
14:49:46 Obviously this is a continued public hearing, so that
14:49:49 would not be in effect now because the hearing has
14:49:52 been previously opened.
14:49:54 Council, I would like to take the opportunity to
14:49:55 announce these procedures, Madam Chair, instead of the
14:49:59 chair doing it, to have the opportunity to do that,
14:50:03 After the announcement of the procedures, then what we
14:50:05 will ask for is the agreement of the parties to the
14:50:08 procedures on the record, and then the approval of the
14:50:12 procedures by motion and vote of council, which would
14:50:16 be pursuant to rule 9-A of the council's rules of
14:50:19 procedures, which state, these rules of procedures may
14:50:22 be amended by a majority vote of the entire council at
14:50:25 any regular meeting -- I'm sorry, I'm reading the
14:50:28 wrong one.
14:50:29 Rule 9-B.
14:50:30 Forgive me.
14:50:33 Any of the foregoing rules may be temporarily
14:50:35 suspended for a meeting then in session by unanimous
14:50:38 vote of the members of council then present unless
14:50:41 such waiver is in conflict with the city charter, or
14:50:44 state or local law.
14:50:47 After that approval, then what would happen is the
14:50:51 witnesses would be sworn, there would be an
14:50:55 opportunity to receive and file any ex parte documents
14:50:57 pursuant to Florida statutes 286.0115 as City Council
14:51:04 normally does.
14:51:05 Obviously there would have to be a disclaimer because,
14:51:08 as you know, no new evidence may be considered.
14:51:11 But as the Florida statutes contemplates, you cannot
14:51:14 prevent items from being e-mailed or the like, and
14:51:19 those would have to be disclosed.
14:51:25 You have heard a review of the appeal process under
14:51:28 section 27-373 by Mr. Territo.
14:51:34 Then what I would like to do now is to review the
14:51:37 council's procedures for speakers.
14:51:41 And obviously what that is then is the fact that the
14:51:49 speakers must be sworn, and that only those who spoke
14:51:53 at the original hearing are permitted to testify, and
14:51:59 that all persons who provide testimony, information or
14:52:03 opinion regarding a petition of a quasi-judicial
14:52:06 matter must disclose any direct or indirect business
14:52:09 or personal interest between themselves and the
14:52:11 petitioner or applicant or the parties in this case,
14:52:15 which is requesting action.
14:52:16 This information shall not be used to deny the
14:52:18 petition matter but goes to the weight of the
14:52:22 evidence, information, or opinion provided.
14:52:25 That being said, what would next happen is council
14:52:35 would inquire if any of the speakers are speaking at
14:52:39 the direction of a party, and if so they are counting
14:52:45 against that party's time.
14:52:49 Council, at that point would you entertain preliminary
14:52:52 objections for the record.
14:52:54 Then you would hear a presentation of the procedural
14:52:56 history of the case by assistant city attorney Ernest
14:53:00 Then you would hear a presentation by the appellant,
14:53:03 who is represented by David Mechanik.
14:53:05 You have 15 minutes if council approves these rules
14:53:07 with the ability to yield the remaining time for
14:53:10 Then it would be followed by questions of City Council
14:53:14 or Mr. Mechanik if any.
14:53:15 Then we would open the floor to public comment.
14:53:18 Again it would be for only those people who have
14:53:21 testified before the Variance Review Board.
14:53:24 Those people would be limited to three minutes per
14:53:26 person unless the speaker waiver form is used a
14:53:36 disclosure of any personal interest with members of
14:53:40 City Council if any.
14:53:41 Then this being a third party appeal the applicant who
14:53:43 is represented by Mr. Bentley would have the
14:53:44 opportunity to make a presentation for 15 minutes.
14:53:47 And then there would be questions allowed by City
14:53:50 Council and Mr. Bentley, if any, followed by the
14:53:53 rebuttal of Mr. Mechanik representing the appellate,
14:53:56 which would be five minutes of any time previously
14:54:03 At that time after the questions have been asked,
14:54:05 council would close the public hearing and there would
14:54:07 be discussion by council and any procedural questions
14:54:12 that need to be asked followed by a motion for the
14:54:14 basis of the motion stated, discussion on the motion,
14:54:17 and finally the vote.
14:54:19 >>JOHN DINGFELDER: Mr. Chairman?
14:54:21 >> Yes.
14:54:22 I'm sorry, I stepped out.
14:54:24 Councilwoman Mulhern and councilman Dingfelder.
14:54:27 >>MARY MULHERN:
14:54:29 NARRATOR:Y, I think the first thing you said concerned
14:54:31 me and I need some explanation.
14:54:37 You said that our rules don't address third-party
14:54:41 >>MARTIN SHELBY: Generally, yes, that's correct.
14:54:45 >>MARY MULHERN: But we allowed third party appeals?
14:54:48 >>MARTIN SHELBY: Yes, your code does allow third party
14:54:51 >>MARY MULHERN: Forgive me.
14:54:54 I did review this entire record a few months ago and I
14:54:56 did watch those tapes but I don't remember.
14:54:58 So any aggrieved person as defined in chapter 27 who
14:55:02 participated during the public hearing.
14:55:03 So the University of Tampa participated during that.
14:55:08 >>MARTIN SHELBY: Yes.
14:55:11 >>MARY MULHERN: That's fine.
14:55:12 But I do question why, if we are being asked to do
14:55:15 this, we don't have rules of procedure for third party
14:55:20 >>MARTIN SHELBY: There have been several cases, this
14:55:21 being one of them, that have raise certain issues as
14:55:24 to the appellant process.
14:55:26 This is part of the review of the undertaking that the
14:55:29 city attorney's office and mites myself are working on
14:55:32 to address the concerns that have been raised.
14:55:35 Those will be addressed.
14:55:36 But in the case before you right now --
14:55:41 >>MARY MULHERN: Okay.
14:55:43 >>MARTIN SHELBY: -- because there is a concern that
14:55:44 these rules do not adequately -- the present rules
14:55:47 within the rules of procedure do not adequately
14:55:49 address procedural due process, then, therefore, I am
14:55:53 asking council to contemplate invoking rule 9 to allow
14:55:57 to you amend those rules by agreement of the parties
14:56:00 to give them that opportunity and afford them the
14:56:03 procedural due process.
14:56:04 >>MARY MULHERN: Okay.
14:56:06 Thank you.
14:56:06 >>THOMAS SCOTT: Councilman Dingfelder.
14:56:09 >>JOHN DINGFELDER: Marty, I just have a friendly
14:56:11 clarification to item number 9 on your hearing
14:56:17 I think it's extremely important to direct the public,
14:56:20 as well of course the appellant and the applicant, but
14:56:25 especially the public, to limit their testimony to
14:56:29 testimony or evidence that they presented at the VRB
14:56:34 So if they found out something new or they heard
14:56:36 something new or they want to talk about something
14:56:38 new, they can't.
14:56:39 And you will catch them on that, hopefully, and direct
14:56:43 >>MARTIN SHELBY: And I would also ask -- you state a
14:56:46 very good point, Mr. Dingfelder.
14:56:47 Thank you.
14:56:49 And to the members of the public who have testified at
14:56:51 the VRB and are intending to testify today, please
14:56:56 heed the words of Mr. Dingfelder.
14:56:58 Limit your testimony only to those, the matter of your
14:57:03 testimony below.
14:57:04 In other words, do not add any additional comments
14:57:06 beyond that.
14:57:07 And I would ask the attorneys -- I'm sorry.
14:57:14 Well, Mr. Mueller has offered to make himself
14:57:24 available if you wish to see what your testimony was,
14:57:26 if it can be Don logistically.
14:57:30 But I would also suggest that the attorneys in this
14:57:32 case who are very familiar with the record --
14:57:38 Mr. Chairman, with your approval, I would suggest that
14:57:41 council have no objection to entertaining any
14:57:44 objections by either side during the course of the
14:57:48 hearing for whatever reason to allow them to protect
14:57:51 the record.
14:57:52 So that being said, that there is something that is
14:57:57 being proffered that had you wish to object to, just
14:58:00 please rise and be recognized by the chair and state
14:58:03 your objections for the record.
14:58:06 Thank you, Mr. Dingfelder.
14:58:17 >>JOHN DINGFELDER: Mr. Chairman, that's the third cell
14:58:18 phony heard go off.
14:58:19 >>THOMAS SCOTT: We need all cell phones and all pagers
14:58:22 to be silenced so turn them off, please.
14:58:24 All cell phones.
14:58:25 I think it states as you come into the building to
14:58:28 turn off all cell phones and all pagers.
14:58:33 Let me just say to all those who are going to be
14:58:36 addressing council, that you speak only to the record,
14:58:40 with no new evidence.
14:58:42 It's very important to do that because should either
14:58:47 side win and you enter new evidence, it goes across
14:58:51 the street, it will be overturned.
14:58:54 You can lose your own case.
14:58:57 By airing new evidence.
14:59:09 >>JOHN DINGFELDER: Mr. Shelby, do you want to get
14:59:11 agreement from the parties on the procedure?
14:59:13 >> Mr. Bentley and Mr. Mechanik, you are in agreement?
14:59:19 >>DAVID MECHANIK: For the university of Tampa we are
14:59:21 in agreement with the procedures as outlined.
14:59:22 >>MARK BENTLEY: Just for clarification purpose, did
14:59:30 Mr. Shelby say that any proponents' time speaking
14:59:34 would be deducted from Mr. Mechanik's?
14:59:38 I wasn't clear on that.
14:59:41 >>THOMAS SCOTT: No.
14:59:42 According to the rules, he has a 15-minute
14:59:45 presentation, and then we open it up for any public
14:59:48 comment, three minutes limitation.
14:59:51 They have to limit their testimony to the record to
14:59:53 what they said previously.
14:59:55 And then you will make your presentation, 15 minutes,
14:59:59 and then he will have five minutes rebuttal.
15:00:01 >>MARK BENTLEY: Just one other point.
15:00:03 Obviously this could go -- has been going on for a
15:00:07 year and a half.
15:00:07 It's pretty complicated.
15:00:09 I want to do this in 15 minutes.
15:00:10 I think that I can.
15:00:12 If I can't I would appreciate having a couple of extra
15:00:15 So I am not asking you to vote on that rate now.
15:00:18 Thank you.
15:00:19 >>THOMAS SCOTT: Okay, we will consider that at the
15:00:20 time but I hope that we can get through this without
15:00:28 any additional time hopefully.
15:00:35 >> (off microphone).
15:00:43 >>MARTIN SHELBY:
15:00:43 >>MARTIN SHELBY: I would like to ask if anyone will be
15:00:46 speaking at the direction of the party, will you raise
15:00:48 your hand if any speaker will be speaking at the
15:00:50 direction of a party, either party, any party?
15:00:53 I see no hands being raised, Mr. Chair.
15:00:58 >>THOMAS SCOTT: Okay.
15:01:00 >>MARTIN SHELBY: That being said, I believe with
15:01:02 agreement of the parties, I believe a motion to
15:01:07 approve these procedures by motion and vote of council
15:01:10 is in order.
15:01:11 >>JOHN DINGFELDER: So moved.
15:01:13 >> Second.
15:01:13 >>THOMAS SCOTT: Moved and seconded.
15:01:15 All in favor signify by saying Aye.
15:01:17 >>MARTIN SHELBY: Mr. Chairman, would you please ask
15:01:20 the clerk to swear in witnesses?
15:01:23 >> I thought we did earlier on but we can swear them
15:01:26 Everybody stand that's going to be addressing council
15:01:31 >>CHARLIE MIRANDA: I didn't see too many of them stand
15:01:34 up, I'll be honest with you, the first time around.
15:01:37 >>THE CLERK: Do you solemnly swear or affirm to tell
15:01:41 the truth, the whole truth and nothing but the truth?
15:01:43 >>THOMAS SCOTT: Thank you.
15:01:46 >>MARTIN SHELBY: I believe if there are any objections
15:01:53 that either side wishes to raise at this point, any
15:01:56 preliminary objections beyond what's already been
15:01:58 Are there any additional objections?
15:02:01 I see no response.
15:02:04 At this time, council, assistant city attorney Ernest
15:02:09 Mueller will present with you the history of the case.
15:02:18 >>ERNEST MUELLER: And I have no co-council.
15:02:20 Ernest Mueller, assistant city attorney.
15:02:22 I'm here on behalf of the Variance Review Board.
15:02:27 And what's before you is an appeal with the Variance
15:02:29 Review Board's decision in case VRB-0-58.
15:02:35 I'm here to give you just a procedural background so
15:02:37 you understand what's brought it to you now.
15:02:39 This case originated in December 2007 and the agent
15:02:44 for a business called The Retreat were requesting a
15:02:47 nonconforming use determination under the section 3-3
15:02:49 of the City of Tampa code of ordinances, from the
15:02:52 city's zoning administrator with regard to property
15:02:55 located at 123 south Hyde Park Avenue.
15:03:00 Specifically the request is for a determination of
15:03:02 what type of alcohol can be sold at the 123 south Hyde
15:03:06 Park location.
15:03:09 The zoning administrator reviewed all the information
15:03:11 and documentation that was submitted by The Retreat.
15:03:16 Upon her review and analysis the zoning administrator
15:03:19 issued a determination that based on the information
15:03:23 provided to her the historic sales of alcohol at 123
15:03:27 south Hyde Park Avenue is comparable to a 4(COP), that
15:03:33 is meaning beer, wine and liquor sales and
15:03:39 The zoning administrator went on to determine that the
15:03:43 business could continue the sale of alcohol at the
15:03:45 location based on the type of alcohol sales that took
15:03:49 place at the location as of June 19th, 1945.
15:04:00 The zoning administrator determination was appealed to
15:04:01 the Variance Review Board by the university of Tampa.
15:04:04 The appeal before the variance review board was a
15:04:08 de novo hearing meaning the board could reweigh the
15:04:11 evidence that had been made available and considered
15:04:13 by the zoning administrator.
15:04:15 The board could and did consider new and additional
15:04:18 evidence presented at the hearing, and the board could
15:04:22 make its own determination.
15:04:24 At the conclusion of the hearing, and just wanted to
15:04:28 state that's like a hearing that lasted over six
15:04:31 hours, after meaningful deliberation on the evidence
15:04:37 presented, the Variance Review Board voted by a vote
15:04:40 of six to one to uphold the determination of the
15:04:43 zoning administrator.
15:04:45 It was the board's determination that there was
15:04:48 sufficient evidence to demonstrate that liquor had
15:04:51 been sold at the location since 1945.
15:04:56 The board went on to determine that there was not
15:04:59 sufficient evidence to demonstrate an intent to
15:05:01 abandon the sales of alcohol at the location.
15:05:08 The Variance Review Board determination has been now
15:05:11 been appealed to the City Council.
15:05:14 >> I would like to ask one question of the attorney.
15:05:16 Mr. Mueller, why is it evidence that the year 1945
15:05:23 comes to mind?
15:05:26 >>ERNEST MUELLER: That is a question that's going to
15:05:28 have to come from staff.
15:05:54 >>THOMAS SCOTT: You have 15 minutes.
15:05:55 >>DAVID MECHANIK: 305 South Boulevard on behalf of the
15:05:58 university of Tampa.
15:06:01 I can answer your question because that is the -- is
15:06:07 the section that governs the decision that was made by
15:06:09 the VRB.
15:06:12 And I would like to read it to you.
15:06:13 It's a couple of sentences but it's very critical that
15:06:16 you all hear what the requirements are of the
15:06:21 particular ordinance.
15:06:22 This is an ordinance that was adopted many, many years
15:06:26 ago, in fact in the 1940s, and what it was doing,
15:06:30 just like many of your nonconforming use provisions in
15:06:34 the zoning code, this is essentially recognizing that
15:06:37 legal businesses selling alcoholic beverages are
15:06:41 allowed to continue under certain circumstances.
15:06:45 So with that in mind I'll read you the code section.
15:06:48 It's section 3-3.
15:06:50 The locations for the sale of alcoholic beverages as
15:06:53 of June 19th, 1945, may be continued not
15:06:59 withstanding the provisions of this article for
15:07:01 conducting the business permitted by the license in
15:07:05 effect on June 19th, 1945, although the use does
15:07:11 not conform to the provisions of this chapter.
15:07:15 If the nonconform use is discontinued for a period of
15:07:19 30 days, any future use of the premises so used for
15:07:23 the sale of alcoholic beverages shall be in conformity
15:07:26 with the provisions of this chapter.
15:07:29 There are a couple of things that are very important
15:07:31 about that section.
15:07:32 One is, it says that the businesses may be continued
15:07:37 for conducting the business permitted by the license
15:07:41 in effect on June 19th, 1945.
15:07:45 We submit to you that that means you have to determine
15:07:49 what liquor license was applicable or approved for
15:07:52 this particular property as of on June 19th, 1945.
15:07:59 Ed and then you would also determine in the VRB was to
15:08:03 determine whether or not that use had been
15:08:05 discontinued for a period of 30 days.
15:08:08 But I would point out to you, because there could be
15:08:11 some confusion of discussion, when the ordinance went
15:08:16 into effect in 1945, the discontinuance provision
15:08:20 actually was for 60 days.
15:08:22 So at loud someone to discontinue for up to 60 days.
15:08:26 In 1999, that period was shortened to 30 days.
15:08:31 And so since we are dealing with all that span of
15:08:35 time, there are points in time when the 60-day rule is
15:08:39 in effect from certain points after 1999 that the
15:08:43 30-day rule goes into effect.
15:08:46 So again the most two critical facts under this
15:08:50 ordinance section are whether there's an ordinance --
15:08:53 I'm sorry, whether there's an alcoholic beverage
15:08:56 license in effect, and for the premises on June
15:09:00 19th, 1945, and whether the use has been
15:09:02 discontinued for either a 30 or 60-day period,
15:09:07 depending on when you are looking at.
15:09:10 We believe that the decision of the VRB departed from
15:09:13 the essential requirements of law in misapplying the
15:09:17 determination required of them under section 3-3.
15:09:22 Specifically, and not withstanding my attempt to state
15:09:26 what the correct interpretation was of section 3-3,
15:09:29 the VRB incorrectly stated that the ordinance
15:09:34 required, that they determine whether or not liquor
15:09:38 sales occurred on or before June 19th, 1945.
15:09:44 And that statement where the VRB chairman sort of
15:09:48 decided what the issue was they were going to decide
15:09:51 is in the transcript at page 251.
15:09:55 What is critical -- and I don't want to be repeating
15:09:59 myself, but it's really critical that the key
15:10:03 distinction between what the ordinance requires and
15:10:05 what they said they thought they were supposed to
15:10:07 decide is that they said they had to decide whether or
15:10:10 not liquor sales occurred on June of 1945.
15:10:14 The ordinance says you have to have a license on June
15:10:19 19th, 1945, a critical, critical difference.
15:10:23 And as we all know with nonconforming uses, a
15:10:26 nonconform use has to be legal when it was
15:10:29 So the whole premise of the idea that there may be
15:10:32 liquor sales that might not be legal would not be a
15:10:35 basis to allow for a legal nonconform use.
15:10:38 So it's fundamental that you would have to have a
15:10:41 license in order to lawfully conduct your business as
15:10:44 of June 19th, 1945.
15:10:52 At the VRB hearing Mr. Bentley pointed out that the
15:10:55 state alcoholic beverage and tobacco department
15:10:59 records had been purged prior to 1949.
15:11:02 In response to that, the VRB allowed for Mr. Bentley
15:11:07 to provide circumstantial evidence to support his
15:11:11 We are not disputing the fact that that was an
15:11:14 appropriate procedure for them to follow.
15:11:17 And Mr. Bentley couldn't produce any knowledge that he
15:11:19 couldn't produce a copy of the license.
15:11:23 So what he proceeded to do was present a number of
15:11:28 affidavits, some testimony, some other evidence
15:11:34 regarding the use of alcohol at this particular
15:11:37 premises of 123 Hyde Park Avenue.
15:11:40 However, because the VRB erroneously determined that
15:11:45 it's charge was to find out whether alcoholic beverage
15:11:47 sales occurred on June 19th, 1945, they did not
15:11:53 correctly apply the requirements of the ordinance, and
15:11:57 they made an incorrect decision.
15:12:01 The VRB can't change the rules of the ordinance.
15:12:03 The ordinance is clear, you have to look at what the
15:12:06 license permitted, because one of the things in the
15:12:09 ordinance says you have to determine what the business
15:12:13 was that was permitted by the license.
15:12:15 Well, if you don't have any evidence of a license, how
15:12:18 could you determine what business the license
15:12:23 In this particular case, not only did the decision
15:12:26 depart from the essential requirements of law but the
15:12:33 evidence submitted by The Retreat is devoid of any
15:12:35 proof of the existence of the license in 1945, and
15:12:40 that's not withstanding the additional latitude that
15:12:42 the VRB granted Mr. Bentley, and therefore being
15:12:46 devoid of any evidence of a license in 1945, there is
15:12:49 no competent substantial evidence to support the
15:12:53 finding that The Retreat was in compliance with
15:12:56 section 3-3.
15:13:01 What I would like to do is go through Mr. Bentley's
15:13:08 And I think you will see where I am heading with this.
15:13:22 First and probably the preeminent piece of evidence
15:13:26 was a 1946 burger brothers photograph which was
15:13:33 introduced in evidence as a photograph of the Retreat
15:13:38 It was a photograph showing a long bar with a bunch of
15:13:43 liquor bottles behind the bar.
15:13:46 The problem with that is a piece of evidence is that,
15:13:49 number one, it was taken in 1946, so it cannot be used
15:13:53 to prove what had occurred in June 19th, 1945.
15:14:01 Mr. Bentley had asked the VRB to come up with a number
15:14:05 of instances about that photograph.
15:14:09 Well, the rules about what's known in the law as the
15:14:16 layering of inferences, and what that suggests is you
15:14:19 cannot layer one inference on top of another, and I'll
15:14:21 tell you how many inferences were layered in this
15:14:24 particular case, unless the inference is one that can
15:14:28 be made to the exclusion of any other reasonable
15:14:34 In this particular case, you see a photograph with
15:14:37 liquor bottles.
15:14:38 Well, the first inference that I guess the VRB drew
15:14:41 is, well, they were selling alcohol.
15:14:43 There's no evidence in the photographs that they were
15:14:45 selling alcohol.
15:14:47 I mean, this could have been a bottle club for all we
15:14:49 know, and it would not have a liquor license such that
15:14:55 would satisfy the requirements of section 3-3.
15:15:00 Second inference that you can't really draw one
15:15:03 inference on top of another.
15:15:04 The second inference is they had a liquor license from
15:15:08 Well, you can't draw that inference from that
15:15:12 Third, they then inferred that they had a license in
15:15:16 Again, I don't mean to bogus down in details, but they
15:15:20 are drawing inference upon inference from a photograph
15:15:23 that simply shows a number of liquor bottles sitting
15:15:27 behind a bar.
15:15:28 It has nothing to do with whether or not there was a
15:15:31 license issued to establishment in June of 1945.
15:15:39 Mr. Bentley submitted an affidavit and offered
15:15:42 testimony of Mr. Nicholas Masari.
15:15:47 He testified there were liquor sales on the property,
15:15:49 and indicated from an extensive period of time.
15:15:54 However, did he not testify that the premises had a
15:15:58 liquor license in June 19th, 1945.
15:16:02 And that is of course the critical piece of
15:16:08 Mr. Bentley offered the affidavit and testimony of
15:16:10 Andrew Masari who by the way was born in 1944, so he
15:16:15 was one as of June -- one-year-old, I guess, when we
15:16:22 would have had had to have established, or Mr. Bentley
15:16:25 would have had to have established that the license
15:16:27 was in effect.
15:16:28 Well, as you can imagine, Mr. Masari, Andrew Masari,
15:16:33 is not able to testify to that, although he did
15:16:35 testify that he witnessed the sale of alcohol from
15:16:38 1954 to the present day.
15:16:42 Again, there's no evidence whatsoever of the presence
15:16:45 of a license in June of 1945.
15:16:51 There are also affidavits of Mike Scotella, Lucille
15:16:58 Scotella, Robert Diaz, Herman Diaz, and James Foster,
15:17:02 all of whom were patrons of the bar and witnessed the
15:17:05 serving of liquor.
15:17:06 Again, no evidence that there was a license in effect
15:17:08 in June of 1945.
15:17:13 Mr. Bentley introduced the Polk Directory for 1943 and
15:17:22 The Polk directory indicated that the premises were
15:17:27 known as the Milano restaurant, Frank Dipolito
15:17:33 restaurant and the Milan restaurant.
15:17:37 Again there's nothing in that information that could
15:17:38 lead you to conclude or assume that there was liquor
15:17:42 being sold pursuant to a state alcoholic beverage
15:17:46 license issued in June of 1945.
15:17:51 There's an advertisement that Mr. Bentley submitted,
15:17:54 the Tampa Daily Times from January of 1944.
15:17:58 It lists the Milano Italian restaurant.
15:18:02 Again these are all interesting historical facts but
15:18:04 they don't say anything about license in 1945.
15:18:08 He introduced the Sanborn map updated through 1954,
15:18:14 shows a restaurant was in existence on the premises in
15:18:19 Again no evidence of a license.
15:18:22 Mr. Bentley submitted rent rolls from 1942 to through
15:18:27 1953 and later.
15:18:29 Again, the rent rolls that showed the names of the
15:18:32 tenant, it shows when the tenants paid the rent but it
15:18:36 doesn't say anything about whether there is a license
15:18:40 issued to the premises in 1945.
15:18:44 Mr. Bentley submitted alcoholic beverage licenses from
15:18:47 1949 to 2008.
15:18:51 Again, that almost begs the question, where are the
15:18:54 licenses from 1945 to 1948?
15:19:00 He's not shown those, and he said he couldn't show you
15:19:03 those because those records were purged.
15:19:05 But it was incumbent upon him to show you some other
15:19:09 evidence of the existence of a license.
15:19:11 And I don't want to belabor the point.
15:19:13 You all may say that that's a harsh result, but the
15:19:18 ordinance says that you have to have had a license in
15:19:21 June of 1945, that there is literally no evidence
15:19:27 whatsoever to suggest that there was a license issued
15:19:30 on that date.
15:19:35 Moving on.
15:19:36 And I would like to hand out an exhibit which was
15:19:38 presented at the VRB hearing.
15:19:41 Even though we believe that The Retreat's failure to
15:19:45 show any evidence of a license in 1945 is fatal to its
15:19:49 claim to nonconforming use under section 3-3, the
15:19:54 University of Tampa presented evidence in the exhibit
15:19:59 we are passing out is, if you will, a summary of that
15:20:03 evidence, which appears in the various notebooks.
15:20:10 What this time line shows that we are passing out
15:20:12 shows that there are significant gaps in time that
15:20:18 reflect something that was happening to disrupt or
15:20:22 potentially disrupt the business operation.
15:20:27 First -- and again, let me just refresh your memory.
15:20:32 From 1945 to 1999, the ordinance does not allow you to
15:20:39 discontinue for more than 60 days.
15:20:43 Starting in 1999, the ordinance doesn't allow to you
15:20:46 discontinue the operation for a period of -- I mean
15:20:51 greater than a period of 30 days. With that in mind I
15:20:55 will walk you through this time line.
15:20:57 You can see from 1945 to up to 1949, there's no
15:21:03 evidence of a license which I talked to you about
15:21:06 So if there's no license, that would not be a lawful
15:21:10 operation for the sale of alcoholic beverages and
15:21:14 would not be a basis for determining a legal
15:21:18 nonconforming use.
15:21:21 The next point in the time line --
15:21:24 (Bell sounds)
15:21:25 Is that 15 minutes already?
15:21:32 I probably need about three more minutes.
15:21:35 >>THOMAS SCOTT: I'll allow you three more minutes, and
15:21:38 give the same amount of time to Mr. Bentley.
15:21:40 >>DAVID MECHANIK: Absolutely.
15:21:42 Thank you very much.
15:21:42 You can see that the next item on the time line
15:21:44 showing red is a vacant for one year.
15:21:51 This was Polk directory that we identified and entered
15:21:55 into the record, which indicated that the proposals
15:21:56 were vacant.
15:21:58 Also, the applications for the 1952 liquor license
15:22:03 indicated there was no license issued for the
15:22:06 preceding year, being 1951.
15:22:10 Moving down the time line, in the next area indicated
15:22:14 in red, apparently in 2002 the establishment
15:22:20 determined that it wanted to move from just the sale
15:22:22 of what we think was beer at that time to food.
15:22:27 The legal requirement shifts between getting an
15:22:31 approval from the legal health department to the
15:22:34 division of hotels and restaurants.
15:22:36 However, the health department certificate expired in
15:22:43 September 30th of '02 and the division of hotels
15:22:46 and restaurant license issued was not issued until
15:22:50 December 2nd, 2002, so there was no approval from
15:22:56 either the health department or the division of hotels
15:22:59 and restaurants for a period of 62 days, which exceeds
15:23:03 the permissible time frame.
15:23:08 Finally, I would like to just point out that water
15:23:14 bills were not paid on a number of occasions in 2004
15:23:20 resulting in a discontinuation of water service on the
15:23:25 Our records, which was an e-mail from the accounting
15:23:29 supervisor, utilities accounting supervisor, indicated
15:23:33 that these dates, 39 days, was the dates that water
15:23:40 service was turned off.
15:23:41 Mr. Bentley had claimed during the hearing that they
15:23:43 continued operations but you have to wonder whether
15:23:48 someone could operate a bar or restaurant without
15:23:50 water service.
15:23:54 So with that I will conclude my initial presentation.
15:23:57 Thank you.
15:24:15 >>THOMAS SCOTT: Public comment, those who testified at
15:24:17 the review may come forward at this time.
15:24:26 If you testified you may come now and address council.
15:24:29 Each person has three minutes.
15:24:34 >>JOHN DINGFELDER: Number 8 on the procedures speaks
15:24:36 to questions, council Mr -- counsel Mr. Mechanik, it
15:24:41 doesn't matter to me if you want to us hold our
15:24:43 questions until Mr. Mechanik and Mr. Bentley are all
15:24:46 That might make more sense.
15:24:48 We will just tweak that and modify that slightly.
15:24:51 >>THOMAS SCOTT: Let's hold our questions until we hear
15:24:53 from the public and --
15:24:56 >>JOHN DINGFELDER: Rebuttal and everything else.
15:24:57 >>MARTIN SHELBY: May I inquire does anybody have any
15:25:00 objection from holding questions to counsel until
15:25:04 I see no objection.
15:25:05 Thank you.
15:25:05 >>THOMAS SCOTT: Okay.
15:25:08 Anyone who is going to address council who testified,
15:25:13 part of the record.
15:25:18 >>MARTIN SHELBY: I see no one, Mr. Chairman,
15:25:20 >>THOMAS SCOTT: All right.
15:25:22 >>MARK BENTLEY: Please don't start the meter on me.
15:25:31 I have a couple of preliminary matters to do here.
15:25:49 >>THOMAS SCOTT: How much time is it going take you to
15:25:51 set up?
15:25:57 Okay, I thought maybe ten minutes or so.
15:25:59 You have 18 minutes, I believe.
15:27:00 >>MARTIN SHELBY: Mr. Bentley, just so we are clear,
15:27:02 both these items that were handed out by Mr. Mechanik
15:27:07 and by yourself today, you both had the opportunity to
15:27:09 have knowledge of these items?
15:27:11 And distribute?
15:27:14 >>THOMAS SCOTT: The issue is whether these were part
15:27:17 of the record.
15:27:18 That's what you need to establish.
15:27:21 This is no new evidence, presented at the variance
15:27:26 >> I want just want to highlight.
15:27:29 >>THOMAS SCOTT: Just want to make sure.
15:27:31 Okay, clerk.
15:27:50 The clock can run.
15:27:52 18 minutes.
15:27:56 >>MARK BENTLEY: The first point brought up by
15:27:58 Mr. Mechanik is about the motion the VRB was a
15:28:02 bifurcated motion, they determined number one that
15:28:04 there was lawful sales of alcohol prior to June
15:28:07 19th, 1945, and then thereafter they determined
15:28:10 that there was no intent to abandon the property from
15:28:15 1945 to 2008 when Ms. Coyle made her decision.
15:28:20 So also 2006 -- and this is the record -- the city
15:28:24 signed off on a liquor license, Pam James with the
15:28:28 zoning department, and obviously she could not have
15:28:30 signed off approving that for the division of alcohol
15:28:34 if there was not the lawful sales from '45 obviously.
15:28:39 So, anyhow, a couple of points here, also on the
15:28:46 dry-up provision, under oath, Cathy Coyle indicated to
15:28:51 me that this property had never been dried up, or
15:28:55 attempted to be dried up since 1945.
15:28:57 So obviously there were continue sales based on her
15:29:02 Let's talk about the copies of the license.
15:29:04 The code doesn't actually require a license.
15:29:06 It just says that you can be grandfathered under the
15:29:08 city's new wet zoning ordinance for business permitted
15:29:11 by the license in effect ins '45.
15:29:14 Ms. Coyle in her letter indicating a single document
15:29:17 March 17th, said that basically no license existed
15:29:20 because the state had purged the licenses, all the
15:29:23 records prayer to '49, therefore show lad at other
15:29:27 This is how you deal with nonconforming use in the
15:29:29 city whether it's alcohol or triplex and a single
15:29:33 family zoning district built in 1946.
15:29:35 You have a confirmation of nonconforming use.
15:29:40 They don't ask for the building permit.
15:29:42 If it's rent rolls, utility bills, affidavits, things
15:29:45 That that's exactly what we did and that's the policy
15:29:47 of the city with either alcohol or any other use.
15:29:50 Concerning the lay sense, that license is long gone.
15:29:53 Based on information we have, the first licensee was
15:29:57 the Milano restaurant in 1942 and they transferred the
15:30:01 license in 1949.
15:30:02 We have got the first available documentation of a
15:30:05 license from the state.
15:30:07 There was a continuous license in effect from '49 to
15:30:10 And I'll get into that a little bit more.
15:30:14 Here again, if you are going to construction the
15:30:18 section 3-3, actually a copy of the license, that
15:30:21 would render your code meaningless.
15:30:23 You might as well have ditched that a long time ago.
15:30:26 Here again there were no records available from the
15:30:28 The city has no records of a license.
15:30:30 So how did all these other liquor licenses get
15:30:33 grandfathered in by the city, under the same
15:30:35 circumstances that we presented?
15:30:38 We presented competent evidence to the zoning
15:30:42 administrator to make a determination.
15:30:48 I point out to council, you enacted your new code and
15:30:52 actually incorporate the same language actually that
15:30:55 you had in 3-3 license in effect.
15:30:58 So prior to that, Ms. Coyle had made a determination
15:31:02 that no licenses or records were in existence for the
15:31:08 So here again, the reference to the license means that
15:31:13 you had a license.
15:31:15 And what I would like to do now is -- (off
15:31:30 >>CHAIRMAN: The microphone is on the podium.
15:31:31 It will come on.
15:31:32 Keep talking.
15:31:33 >> What I like about his chart really supports our
15:31:35 position because it goes along the time line, 53 years
15:31:39 from '45 to 2008 and the only dispute is actually one
15:31:43 year and 111 days, over 63 years.
15:31:46 So he had reason for almost 62 years, the license in
15:31:51 Let's look at '45.
15:31:53 Here again, Milano is long gone.
15:31:57 So what do you do in the absence?
15:32:00 The it's supply evidence to confirm that.
15:32:03 Affidavits, rent rolls, et cetera, whatever you have.
15:32:06 So 1945, we supplied all that information, and the VRB
15:32:12 determined that we had met our burden.
15:32:14 And also it's kind of notable, Mr. Mechanik did not
15:32:17 present any evidence to refute there were no sales
15:32:19 prayer to 1945.
15:32:22 Any evidence of demonstrating lawful sales prior to
15:32:25 '45 was presented by us.
15:32:27 So the lack of existence of any evidence does not rise
15:32:32 to the level of substantial, competent evidence.
15:32:36 He doesn't refought it.
15:32:38 What's interesting here, the first tenant in 1942 was
15:32:41 Milano, and they transferred their license in '49.
15:32:45 The first time the city had any records.
15:32:47 So then I think that would reasonably suggest that
15:32:51 there was a license in effect at that time.
15:32:53 Also under the law there's a presumption that you are
15:32:56 operating locally.
15:33:02 That's the presumption.
15:33:03 So if they are selling liquor prayer to '45 it's
15:33:07 presumed to be legal.
15:33:08 So that's one of the tests here.
15:33:10 The license has been in effect.
15:33:12 Don't really need the license, just evidence of a
15:33:14 license, which the VRB agreed.
15:33:16 Number two, was it lawful?
15:33:18 Let's go down the time line.
15:33:19 Mr. Mechanik here says on his first chart, no license
15:33:24 for one year.
15:33:26 He realized there was.
15:33:27 Look at his second chart he presented to the VRB.
15:33:31 He conceded there was a license.
15:33:33 Now it's vacant one year.
15:33:35 Doesn't reference the license.
15:33:36 Because the license is transferred.
15:33:38 And this is all the record from Milano to Dave's
15:33:44 Daves had a three year lease at this time.
15:33:46 He then transferred in 1953.
15:33:49 We also have affidavits from people who went to that
15:33:51 bar saying they drank at Dave's bar and grill.
15:33:55 So we covered this.
15:33:57 We referenced the Polk directory for one year and we
15:34:01 got an e-mail from the Polk people saying they --
15:34:05 basically if something wasn't there they considered it
15:34:08 Obviously they were in the phone book every day.
15:34:13 We have Polk directories from 50 to 52.
15:34:17 That's two years outside of 1951.
15:34:19 And they were in Polk directory.
15:34:22 Anyhow, I think that takes care of '51, 1952.
15:34:28 The other issue he's alleging, and he's trying to make
15:34:31 the point they were not lawful sales or there was an
15:34:34 intent to abandon, is this area here, 2000, no health
15:34:38 department certificates.
15:34:39 If you look at the documentation there was a liquor
15:34:42 license in effect in October, okay?
15:34:46 And transitioning from a bar to bar restaurant.
15:34:49 That's where the state shows up.
15:34:51 So the owner -- the health certificate records are in
15:34:56 the record.
15:34:57 You will see the health department came out, inspected
15:35:00 property, make this business transitioning, the state
15:35:05 And I think a couple of days later, he reestablished
15:35:09 And also we have an e-mail or a fax from the health
15:35:14 department saying they no longer needed a certificate.
15:35:18 So for get this health department stuff.
15:35:21 If the health department says if you don't have a
15:35:24 certificate downtown have a license.
15:35:25 At this point in time I have given you all the city
15:35:27 occupational licenses covering that point of time, the
15:35:29 state's lying liquor license and copies of the rent.
15:35:35 There was a -- expired in 2003, okay?
15:35:41 We have this area covered.
15:35:42 Here again, there has been has to be clear intent to
15:35:47 That means close your door, turn out your lights,
15:35:49 throw your keys in the Hillsborough River, clear
15:35:52 Obviously there is no intent to abandon.
15:35:54 Now this 939 days, under a separate test there was a
15:36:03 water department charge that indicated that the
15:36:07 proprietor paid his bill to the water department.
15:36:10 Then on December 13th, the clerk entered into the
15:36:13 record what they call a UCS charge, and that means
15:36:17 they haven't paid, sent an inspector out to the
15:36:22 So that was December 13th.
15:36:24 So this guy already paid his bill on December
15:36:29 If he didn't pay it they send sent a rep out on the
15:36:33 14th according to Teresa burns, and he paid it
15:36:36 December 18th.
15:36:38 So the water was off at best for four days.
15:36:42 Meanwhile, they had a liquor license.
15:36:46 They had a lease.
15:36:47 I have I have given you all this stuff.
15:36:49 You have affidavits.
15:36:50 Occupational license, et cetera.
15:36:52 So turning the water off for four days, does that mean
15:36:57 he didn't have the right to sell liquor or there was a
15:36:59 clear intent to abandon?
15:37:00 Certainly not.
15:37:01 Then we get up to here, in 2008.
15:37:05 What happens when you changed your code, my client's
15:37:09 legal nonconforming use, that became a new code under
15:37:13 April 1, 2008, conforming use, no longer is
15:37:20 I would like to go back to '45 and mention once again
15:37:24 If you literally construe that code section to require
15:37:27 the license, that doesn't make any sense at all.
15:37:31 No one has a license 63 years later, the state doesn't
15:37:35 have it, the city doesn't have it, how did all these
15:37:37 other establishments in the city get grandfathered in
15:37:41 without a lay sense?
15:37:43 The policy is to look at substantial, competent
15:37:45 evidence to make that determination.
15:37:55 >> (off microphone).
15:38:02 >>> If you review the transcript I mentioned at the
15:38:04 underlying hearing.
15:38:05 I didn't say the number.
15:38:06 I didn't say the number rate now.
15:38:07 So the city's policy and our client, these other
15:38:12 proprietors, they didn't have a license no, one has a
15:38:17 license, so why could do you have the section?
15:38:20 It doesn't make sense.
15:38:22 You might as well get 3 out of your code, but you
15:38:26 You reenact it on April 1st.
15:38:29 And here again, Ms. Coyle's letter was issued March
15:38:33 17th, 2008.
15:38:37 You enacted your code on April 1, 2008.
15:38:40 So the author of your code, Ms. Coyle, knew when you
15:38:44 enacted your new code that no license existed.
15:38:47 She even indicated that in her March 17th letter.
15:38:52 So she's telling you all it the change essentially
15:38:57 took the same language about a license that she knew
15:38:59 prayer to the enactment no license did exist.
15:39:03 So like I said, I have covered this time after 1945.
15:39:08 There were no gaps in the operation at all.
15:39:16 Covers every period of time.
15:39:17 So like I said, even with this chart, Mr. Mechanik
15:39:20 agreed with us for almost 62 years.
15:39:22 Now we have knocked off this period and this period.
15:39:28 So the sole issue 345, and not to beat a dead horse,
15:39:33 the city did not require a license, they never have,
15:39:36 your code doesn't say.
15:39:37 That just says you're grandfathered as to the license
15:39:40 in effect, not that you need a copy of a license.
15:39:42 Ms. Coyle understands -- treats the same as any other
15:39:47 person pursuing a legal nonconforming status and we
15:39:51 expected to be treated the same and we were.
15:39:54 So basically Ms. Coyle, she got it right.
15:39:56 She followed the city's interpretation of section 3-3.
15:40:02 And if you have any questions, I'm glad to answer.
15:40:05 But in any event, the VRB got it right.
15:40:07 And here is your chart today.
15:40:09 It's not a battle of the evidence.
15:40:13 Who has got more, who has the best evidence.
15:40:15 It's just any one of these facts would a reasonable
15:40:18 person determine that it's established fact in
15:40:25 So if there's some evidence to contradict our
15:40:28 evidence, that doesn't mean anything.
15:40:29 And here again, Mr. Mechanik is between a rock and a
15:40:33 hard place, has absolutely no evidence to refute what
15:40:38 was going on there, like I said, the first -- we have
15:40:42 is '42, the same person from '49 transferred Dave's
15:40:49 So obviously, someone had a license to transfer.
15:40:52 And that's the first opportunity, because the state
15:40:54 had purged their records in 1949.
15:40:59 So if no one got records, the city ain't got it, the
15:41:02 state ain't got it, what do you do?
15:41:06 Does it render the code section meaningless?
15:41:08 The best we can do is provide substantial competent
15:41:10 evidence which we did in rent rolls, affidavits from
15:41:14 patrons and things of that nature.
15:41:16 With respect to this photo, toss the photo out.
15:41:21 We for the record, that photo in the record was
15:41:26 verified by the county public library downtown, which
15:41:31 is the keeper of the burger brother files.
15:41:36 And we have copies of that, and that's what was
15:41:38 presented to the VRB, was authenticated by a
15:41:41 So what more can you do?
15:41:43 So I appreciate your time and consideration.
15:41:46 Obviously -- if you have any questions later on I will
15:41:52 be glad to answer any questions.
15:41:55 >>GWEN MILLER: Mr. Mechanik, rebuttal.
15:42:21 >>DAVID MECHANIK: For the record.
15:42:24 I'll try to get through this quickly.
15:42:27 Mr. Bentley, you know, just said some things that were
15:42:30 just not accurate.
15:42:31 He said there were licenses to cover every period in
15:42:34 Well, clearly, even his own graphic showed that there
15:42:38 were not licenses up until 1949.
15:42:43 And of course that's missing the critical period of
15:42:51 Probably most importantly is he says your ordinance
15:42:54 doesn't make sense.
15:42:55 Well, the University of Tampa didn't draft the
15:43:00 The city adopted it.
15:43:02 The city can't ignore the ordinance.
15:43:05 There's no other way to interpret section 3-3.
15:43:09 It says you are allowed to continue the business
15:43:11 permitted by the license.
15:43:13 How on earth could you determine what's legal
15:43:18 nonconforming and continue to be conducted if you
15:43:24 don't have any evidence about the license?
15:43:28 But I acknowledge to you all that it was appropriate
15:43:32 that they allowed circumstantial evidence.
15:43:34 There are lots of ways that you might be able to prove
15:43:37 that there was a license in 1945.
15:43:41 He had a number who apparently were around at that
15:43:44 time, but nobody, not one of his witnesses, said this
15:43:48 establishment had a license in 1945 and this is what
15:43:52 that license allowed the bar to do, if there was a bar
15:44:00 The ordinance makes sense, because you need to know
15:44:02 what the license allows for in order to know what was
15:44:07 permitted at the time, what was a legal use at that
15:44:09 particular time.
15:44:17 They I didn't offer evidence to refute his evidence.
15:44:20 Frankly, I didn't have to because you never presented
15:44:22 evidence about a license so I didn't need to review it
15:44:25 and it was his burden of proof to establish that he
15:44:28 had license and that that use was continuous.
15:44:35 Probably the most important thing is he talked about
15:44:37 this intent to abandon and truly if you follow the
15:44:41 letter of the ordinance, he didn't prove he has a
15:44:44 license in 1945.
15:44:46 That you don't even get into a question of whether
15:44:50 there were gaps in time later on down the road.
15:44:53 But because we are discussing that, I just want to
15:44:57 speak to that point.
15:44:58 He says there's no intent to abandon.
15:45:00 The way he puts it, it's like if his client just tells
15:45:02 him no, intent to abandon, that's tend of the
15:45:07 discussion, I didn't want to do that.
15:45:09 What the courts have said is that the intent to
15:45:10 abandon has to do with whether you are taking good
15:45:13 faith steps to resume your business but you have
15:45:17 stopped operating.
15:45:19 And I would suggest to you that failure to pay their
15:45:22 water bill in May, June, August, September, November,
15:45:26 of 2004 resulting in cutting off --
15:45:32 >> That's not in the record.
15:45:34 >> It is in the data we received from the city.
15:45:37 It's in the notebooks and I will give you the cite in
15:45:40 just a moment.
15:45:41 May, June, August, September, November, didn't pay the
15:45:45 water bill and that resulted in a termination of
15:45:46 service for 32 days.
15:45:48 And that's also documented in the record.
15:45:53 I can't believe anybody would consider operating a
15:45:56 business seriously if you don't have water for 32
15:46:00 They also didn't have their health department or
15:46:02 division of hotel certificate, in utter disregard for
15:46:06 legal requirements.
15:46:07 Presumably, according to Mr. Bentley, he was operating
15:46:10 but I guess he was operating illegally during that
15:46:12 period of time.
15:46:13 And I would suggest to you that that's not a valid
15:46:16 basis to consider continuation of a nonconforming use.
15:46:23 Clearly the most critical point is he didn't produce a
15:46:25 shred of evidence regarding the existence of a license
15:46:28 in 1945, and that is required under your ordinance.
15:46:32 And I respectfully ask you all to reverse his decision
15:46:37 of the VRB.
15:46:38 Thank you.
15:46:45 >>JOHN DINGFELDER: Thank you, Mr. Chairman.
15:46:47 I have a few questions for both attorneys.
15:46:50 This question.
15:46:51 And just give me 30-second answers if you can.
15:46:55 Mr. Bentley, you indicated the law says we must
15:47:03 presume if there were sales that they were legal
15:47:06 Are you citing case law?
15:47:08 >>> I think that's fundamental -- what I am saying is
15:47:12 there's presumption people are acting lawfully, okay?
15:47:16 And these people are in there and they got affidavits
15:47:18 saying that they drank liquor there, and I don't think
15:47:22 they would admit that if it was illegal.
15:47:26 So if you are walking down the street there's a
15:47:29 presumption you are walking legally and a cop can't
15:47:31 stop you, okay, just for any particular reason.
15:47:34 So you have to assume that case law was so
15:47:38 I didn't -- maybe Tom can address that.
15:47:41 That's my 30-second answer.
15:47:42 >>JOHN DINGFELDER: And the only thing I would say to
15:47:45 that, my only concern about that, as Mr. Mechanik
15:47:48 says, the linchpin or one of the linchpins of the
15:47:52 argument is they might even concede that there might
15:47:55 have been, you know, sales or consumption, but their
15:47:58 linchpin, their argument was that it wasn't legal, and
15:48:01 you are saying we should presume it was because the
15:48:04 law says we should.
15:48:04 >>> Just ten second on that.
15:48:09 The rent rolls I gave you was 1942, Milanos.
15:48:13 The state records 1945, Milano's was renting the
15:48:17 property from '42 to '50.
15:48:20 They got a license in 49.
15:48:23 So I would think that this tenant who had been there
15:48:27 for a few years wag selling alcohol based on the
15:48:31 affidavits did have a lay sense and it was the first
15:48:33 available time.
15:48:34 No one has got a license.
15:48:37 They got the first one, the first opportunity.
15:48:38 >>JOHN DINGFELDER: And your exhibit actually says that
15:48:42 the note up there of item 15, exhibit 2, application
15:48:51 in October of 1949, third page item 15 says that they
15:48:58 let it expire October 1st, 1949, which I guess
15:49:01 would infer, your inference, that there was a license
15:49:06 prior to that that they let it expire for whatever
15:49:08 reason, and reapplying.
15:49:11 >>> What it means is if there's an applicant, okay,
15:49:14 they don't ask the owner, did your license expire?
15:49:17 When you're applying, they ask, hey, did your previous
15:49:21 license expire?
15:49:22 And I guess if you are looking at the Milano, that
15:49:25 helps my case, sir.
15:49:30 They have a copy of a license there, and it indicates
15:49:32 that previous license expired.
15:49:35 They know they got a license prior to '49.
15:49:37 >> They even indicate the license number, 1043, I
15:49:44 Tell me, you made a big point about Pam James, and
15:49:48 Mr. Mechanik, I'll let you answer that, too, but you
15:49:50 made a big point about Pam James' letter.
15:50:00 >>> Obviously the city couldn't sign off to the state
15:50:03 division of to alcohol.
15:50:05 If you look at the zoning verification, 2006, I think
15:50:10 it was Mr. Maroney, that's when he took over the
15:50:15 property, David, I don't know if you have a copy but
15:50:17 it's in the record.
15:50:18 She signed off that the zoning was grandfathered in.
15:50:23 She couldn't do that obviously if they weren't selling
15:50:28 in 1945.
15:50:30 >> I heard you say that, Mark, but here's my problem,
15:50:34 page 13 on exhibit 1.
15:50:37 Pam James signed that on March 20th, 2008, three
15:50:41 days after Cathy Coyle signed her letter, which is the
15:50:49 whole basis of this case, three days early on March
15:50:52 17, 2008.
15:50:54 So Pam James' letter is just confirming what her boss
15:50:58 Cathy Coyle said three days earlier.
15:51:01 >>> John, what's in the record, and I have a copy
15:51:04 now -- that's the 2008.
15:51:09 That was three days after Ms. Coyle signed off.
15:51:11 >>JOHN DINGFELDER: Right.
15:51:13 >>> We have in the record Pam James, 2006.
15:51:16 We can dig it up if you want to take a bray break.
15:51:19 She signed off.
15:51:20 Here again she couldn't have signed off on it,
15:51:22 wouldn't be lawful, because she had to confirm there
15:51:25 were lawful sales for 61 years before then.
15:51:30 >> You're doing some detrimental reliance on the city
15:51:33 >>> Well, I hope the city acted appropriately in good
15:51:37 That's all we can say.
15:51:38 >> Mr. Mechanik, if you can just give me your legal
15:51:40 side on this presumption issue, if there were sales.
15:51:44 Mr. Bentley says they were presumed sales.
15:51:47 And you are saying what?
15:51:51 >>DAVID MECHANIK: I mean, I have never heard of that
15:51:53 legal presumption.
15:51:55 I think it would be preposterous for someone, a
15:51:58 defendant in court to say that I was presumed to be
15:52:00 doing something legal.
15:52:03 I don't know how else to respond other than to say I
15:52:05 think it's preposterous.
15:52:07 I have never heard of it.
15:52:08 Never heard of such a legal presumption, and he
15:52:12 provided no legal basis to support that.
15:52:13 >>JOHN DINGFELDER: My last question.
15:52:19 >>MARK BENTLEY: May I respond?
15:52:22 >>JOHN DINGFELDER: If you wish.
15:52:24 >>> All I can tell you is section 3-3 requires a
15:52:28 determination by the city.
15:52:30 This is the process that The Retreat is going under,
15:52:32 and is under appeal today.
15:52:35 I don't know what or how, if there is such an approval
15:52:39 by Pam James, but this is the procedure Mr. Bentley,
15:52:44 if he was alleging that he already had that
15:52:46 determination, he certainly wouldn't be going through
15:52:48 this whole process today.
15:52:51 >>JOHN DINGFELDER: And the last question I had, Mr.
15:52:54 Territo or any of your assistants.
15:52:56 I don't know if you informed us about the burden,
15:53:00 whose burden it was originally to persuade Cathy Coyle
15:53:08 whose burden it becomes at the VRB, whose burden is it
15:53:11 I think we need a little bit of help on that.
15:53:14 You heard all of that, Ernie?
15:53:17 >>ERNEST MUELLER: The second half.
15:53:18 It's probably best to answer the portion of the
15:53:20 You were asking about the burden in front of the VRB.
15:53:22 >>JOHN DINGFELDER: I would like to know sort of the
15:53:25 burden that Cathy Coyle states and then the burden of
15:53:28 VRB and the burden today.
15:53:29 >>ERNEST MUELLER: Okay.
15:53:32 It's my understanding the burden, since only one
15:53:35 person presented information to Cathy Coyle, it would
15:53:39 have been the applicant which would have been The
15:53:42 They had to demonstrate it.
15:53:44 On the appeal in front of the VRB, the burden, there's
15:53:49 kind of a dual burden.
15:53:50 The burden of the -- because it was a de novo hearing,
15:53:54 it and Ms. Coyle's decision kind of drops out.
15:53:58 It becomes the burden of The Retreat.
15:54:04 Can we present the evidence again anew to show that
15:54:07 they were entitled, or that they were not legal
15:54:11 nonconforming use?
15:54:13 There was also the burden of university of Tampa to
15:54:16 show that they were not, or that there was not
15:54:20 evidence presented to show that their impact was
15:54:24 >> It was sort of a shifting burden?
15:54:26 Is that what you are saying?
15:54:27 >>> It's been our position it's more of a dual burden.
15:54:31 You have to show -- one of the parties has to show by
15:54:34 competent substantial evidence either that there was a
15:54:37 determine -- that they were entitled to it or not.
15:54:41 It really didn't come to a shifting burden.
15:54:43 It was just each one had a burden, and the VRB made
15:54:48 its determination that The Retreat met its burden in
15:54:53 showing that there was -- that they were entitle to
15:54:58 the determination of a nonconforming, legal
15:55:01 nonconforming use.
15:55:03 >> Do you want to clarify that at all?
15:55:09 >>SAL TERRITO: Generally the person coming has the
15:55:13 Once they meet that burden the it shifts to the person
15:55:18 to rebut that information.
15:55:19 So it seems to be in the initial case, since there's
15:55:21 only one party involved, the burden was on The Retreat
15:55:24 to get their license.
15:55:25 Once it went to the VRB at the hearing, then the
15:55:28 burden was to put forward your case again.
15:55:30 Once that burden was met, then the other party had the
15:55:38 >>JOHN DINGFELDER: The VRB must have concluded that
15:55:40 the applicant met the burden and that the challenger,
15:55:45 that she did not meet the burden?
15:55:48 >>> I don't want to put words --
15:55:52 >>JOHN DINGFELDER: By the nature --
15:55:55 >>SAL TERRITO: In effect The Retreat had the burden
15:55:58 The first burden was to convince the city in the first
15:56:01 case, which was Ms. Coyle.
15:56:02 That went away.
15:56:03 Then we started fresh again.
15:56:04 So they had to prove their case twice.
15:56:06 Apparently that was successful twice.
15:56:08 I think other attorneys may have a different
15:56:10 perspective on that but that's how I view it.
15:56:13 >>THOMAS SCOTT: Councilman Miranda.
15:56:16 >>CHARLIE MIRANDA: Sal or anyone in the city, from '42
15:56:21 to '45 I was out of office.
15:56:26 [ Laughter ]
15:56:27 Let me say that currently, that was a little humorous
15:56:32 to wake the crowd up.
15:56:33 What is the current status?
15:56:35 For an operation today to sell alcohol?
15:56:39 Does it mean you don't have to have water?
15:56:41 Does it mean you don't have to have electricity?
15:56:43 And the answer is no.
15:56:46 From what I recall, all you had to do to sell alcohol
15:56:50 is to register one drink a month unless that changed.
15:56:55 And today as we speak today, on this very difficult
15:57:00 case, there is -- for instance, those don't have
15:57:09 water, I would assume, don't have electricity, I would
15:57:12 assume, still have a liquor license and say I sell one
15:57:17 drink a month.
15:57:17 Is that the law today or not?
15:57:20 >>SAL TERRITO: Let me ask the attorney to handled
15:57:23 handle this area.
15:57:25 Ms. Kert.
15:57:26 Let me see if I can find her to answer that question
15:57:28 for you.
15:57:35 >>CHARLIE MIRANDA: See, these laws are great, and not
15:57:43 so great.
15:57:44 Depends on how you interpret them.
15:57:48 I asked the legal department, and they answered me
15:57:50 that the legislature was the only one that could
15:57:53 I remember a month ago or so I asked to have these --
15:57:58 and I didn't know this was coming before us.
15:58:00 I can tell you that I felt that any operation other
15:58:03 than a mom and pop type grocery store, they come in
15:58:07 and do the same thing.
15:58:08 But a 4(COP) or one of them, had to be an "R," you
15:58:13 were an "R."
15:58:14 The question was -- in today's standards, Rebecca, if
15:58:19 you have a liquor license, do you need water?
15:58:23 Do you need electricity?
15:58:25 Or do you just need to record one sale a month?
15:58:30 >>REBECCA KERT: Legal department.
15:58:31 I can only speak as to what the code said, and the
15:58:33 code requires, we start our process posting for notice
15:58:40 that you have discontinue sales after 30 days with no
15:58:45 And I believe before we can dry up is a term that they
15:58:52 use in the city, anybody's license, you have to
15:58:55 abandon that use.
15:58:56 >> Okay.
15:58:58 Saying that in legal terms, I understand what you
15:59:01 said, but it's difficult at some times.
15:59:05 Question is, do you have to have water hookup to have
15:59:08 a liquor license?
15:59:10 Do you have to have an electric meter working to have
15:59:12 a liquor license without being suspended for sales of
15:59:17 >>REBECCA KERT: You will not be suspended for not
15:59:19 having sales of alcohol if you have sales of alcohol
15:59:22 regardless of the issue.
15:59:29 >>THOMAS SCOTT: We are taking questions now from
15:59:34 Council, any other questions?
15:59:38 I guess the only thing that I have-and I don't know
15:59:41 that it's a question as it is the whole issue of
15:59:43 assumption -- I think the statement was made by both
15:59:46 parties of alcohol being in the bar, the picture.
15:59:53 And one attorney says that does not mean that they
15:59:56 were selling alcohol.
15:59:57 Is that right?
16:00:00 So the question I have is, if there's a bar, there's
16:00:05 alcohol in there, then we don't have to presume, or we
16:00:08 should not presume that they are selling alcohol.
16:00:10 Is that accurate?
16:00:20 >>> What I was speaking to is the fact that you can't
16:00:23 draw an inference when there are multiple
16:00:26 interpretations of that photograph.
16:00:29 The example I use is it could be a bottle club, which
16:00:31 would not be involved involving the sale of alcohol.
16:00:34 So then that would not comply with the requirements
16:00:40 under 3-3 of the ordinance.
16:00:45 So while there may be alcohol there, it doesn't
16:00:48 necessarily mean it was sold.
16:00:50 And clearly understanding they don't generally give
16:00:55 that stuff away, but a bottle club does not involve
16:00:57 the sale over the counter.
16:01:00 >>THOMAS SCOTT: To follow up with that then, I don't
16:01:02 know if any bottle clubs were around in 1942, or 45.
16:01:07 Then I will follow up to say, if I went to Walgreen's
16:01:11 or a pharmacy and they have drugs in there,
16:01:16 medications, legal drugs -- (laughter) -- am I to
16:01:24 assume they are not selling Bayer aspirin, Alka
16:01:29 Seltzer, or filling prescriptions?
16:01:34 Because the inference is that you present a picture
16:01:37 that has alcohol in it, and you are telling me I am
16:01:40 not to assume that they were selling alcohol.
16:01:44 You have got a bar.
16:01:46 Generally I think you go to a bar to drink alcohol.
16:01:49 And I don't go to bars.
16:01:55 [ Laughter ]
16:01:56 >>> My only point was there was at least one other
16:01:59 reasonable interpretation of that photograph of beyond
16:02:03 even that point, even if they were selling alcohol
16:02:05 under a license in 1946.
16:02:07 And I don't believe that's the case.
16:02:10 But that doesn't mean they had a license in 1945.
16:02:13 You still can't draw the inference that they had a bar
16:02:17 in 1946, that means they must have had one in 1945.
16:02:21 >>THOMAS SCOTT: Even if the Milano brothers were
16:02:26 operating in '42 --
16:02:29 >>DAVID MECHANIK: The only evidence in the record is
16:02:30 that they were occupying, or they were on the premises
16:02:34 as a restaurant.
16:02:34 It there's no evidence that suggests that they had a
16:02:42 license to sell alcohol from 1942 through 1949.
16:02:45 >>THOMAS SCOTT: Mr. Bentley, do you want to respond?
16:02:51 >>MARK BENTLEY: Councilman Dingfelder raised the
16:02:53 points that their application in 1949 so they had a
16:02:56 prior license.
16:02:59 So there was a license.
16:03:00 At least we know from '45 to '49.
16:03:03 I didn't want to get into the picture too much.
16:03:05 That was obtained from the burger brothers archives
16:03:08 and officially recognized by that.
16:03:09 It was taken June 19th, 1946, the effective date
16:03:16 of the city's wet zoning ordinance was June
16:03:18 19th -- excuse me, I keep saying two thousand --
16:03:28 So that was taken six months after the city enacted
16:03:30 its ordinance.
16:03:30 If you look at it, it's pretty beat up.
16:03:33 And I think it's reasonably to infer that if someone
16:03:37 says come out to my bar and take a picture of the
16:03:39 liquor bottles and these patrons and the bartenders
16:03:42 that presumably I think it's safe to say they were
16:03:45 operating legally.
16:03:46 And then one other points, if I could, Mr. Chairman.
16:03:50 Mr. Dingfelder, Pam James in 2006 was for 1(COP),
16:03:55 And that's why Rick went in, and that's why we got
16:03:58 this whole issue is, to operate that to a 4 dop cop
16:04:02 which was obtained in 1945.
16:04:04 Thanks a lot.
16:04:04 >>THOMAS SCOTT: Councilwoman Mulhern.
16:04:06 >>MARY MULHERN: I guess this is a question for
16:04:08 Mr. Mechanik.
16:04:09 What is a bottle club?
16:04:24 It's a club as opposed to a commercial establishment,
16:04:26 and you pay your dues, and you sort of jointly own all
16:04:30 the liquor, and then you go there and they give it to
16:04:34 Downtown pay per drink.
16:04:35 >>MARY MULHERN: And you have to have a liquor license
16:04:39 for that?
16:04:41 >> Well, you may be regulated.
16:04:43 I don't know the details.
16:04:47 It's not the same.
16:04:48 >>MARY MULHERN: It's not the same but wouldn't there
16:04:50 have been a liquor license to have a club, for
16:04:54 >>> I don't know.
16:05:00 All I'm saying is the law about inferences is that you
16:05:03 can't assume something if there is another reasonable
16:05:06 inference that could be put to that piece of evidence.
16:05:12 In the case of the pharmacy, I thought about it.
16:05:14 I would concede.
16:05:15 I can't think of another one other than they were
16:05:17 selling drugs over the counter.
16:05:20 However, I do think there is a reasonable inference in
16:05:22 connection with that paragraph photograph that it
16:05:25 could have been a bottle club.
16:05:26 >> Looks like a bar to me.
16:05:29 I don't know what a bottle club is.
16:05:31 >>DAVID MECHANIK: We don't know that either.
16:05:33 >>THOMAS SCOTT: Thank you, sir.
16:05:35 Hold it one second.
16:05:36 Councilman Caetano.
16:05:37 >>JOSEPH P. CAETANO: Mr. Chairman, my opinion of a
16:05:41 bottle club is that you bring your stuff in there,
16:05:45 whether it's a bottle of Scotch or whatever, and you
16:05:48 don't go to those places so you wouldn't know.
16:05:51 So you go there, and you are going to be served your
16:05:55 own bottle and you pay a fee for serving of your
16:05:57 bottle to, they give you your water or whatever you
16:06:00 want with it.
16:06:01 That's a bottle club.
16:06:05 >>THOMAS SCOTT: Councilwoman Mulhern was asking that
16:06:08 >>MARY MULHERN: Yeah, I'm fine.
16:06:11 Thank you.
16:06:13 >>> I want to say something correct something I said
16:06:16 to Mr. Dingfelder.
16:06:17 Apparently the rules on the VRB are different.
16:06:20 Our VRB rules are such that both parties have to prove
16:06:22 their case.
16:06:23 It doesn't shift.
16:06:24 I said under normal circumstances.
16:06:28 These not how we do things here.
16:06:30 Basically both parties have to prove their case.
16:06:32 It was a new hearing and the VRB took one side over
16:06:35 the other but it wasn't a burden shifting.
16:06:37 So I said that incorrectly.
16:06:40 >>MARTIN SHELBY: If I could follow up a little
16:06:42 In terms of burden, it's not necessarily a scale as
16:06:46 you would have beyond a reasonable doubt which is the
16:06:49 highest within criminal law.
16:06:50 The standard is competent, substantial evidence.
16:06:53 It has to be competent, which means it has to be
16:06:56 relevant, it has to be material, and it has to be
16:07:01 If there is enough competent, evidence in the record,
16:07:08 a substantial amount to support the decision, that a
16:07:12 reasonable body to come to, that meets the burden.
16:07:15 >>THOMAS SCOTT: Any other questions by council?
16:07:17 >>JOHN DINGFELDER: Yes, sir.
16:07:21 Mr. Shelby, since Ms. Coyle testified at the VRB, can
16:07:25 I ask her a question here?
16:07:30 >>MARTIN SHELBY: I believe that would be appropriate,
16:07:32 if there's no objection by either party, a question as
16:07:35 to what she testified to at the VRB.
16:07:37 I see no objection by either party.
16:07:44 >>CATHERINE COYLE: I will heard "Ms. Coyle" so much.
16:07:47 >>JOHN DINGFELDER: I'm looking at the transcript where
16:07:48 you started testifying on page 71.
16:07:53 And it's a long testimony and I haven't found what I
16:07:56 am looking for yet.
16:07:58 So I just wanted to ask you.
16:07:59 What I don't understand is the relationship between
16:08:03 the 1(COP) and the 4(COP).
16:08:07 And if during recent years there were they were a
16:08:13 1(COP), recognized by the city as a 1(COP) like beer
16:08:18 only, is that 1(COP)?
16:08:21 >>CATHERINE COYLE: Correct.
16:08:23 >>JOHN DINGFELDER: Then why are we looking back at the
16:08:25 4(COP) in '45?
16:08:30 I'm just a little confused on that.
16:08:32 >>CATHERINE COYLE: A similar question and my response
16:08:34 to that I think is on page 84.
16:08:36 >>JOHN DINGFELDER: That's what I was trying to
16:08:39 >>> I believe it was Mr. Barren who asked a similar
16:08:42 question about rule 3-3 of the 1945 cut-off for that.
16:08:47 The rule 3-3 from the old chapter 3 is really related
16:08:51 to what would was the intensity of that alcohol, at
16:08:55 that time.
16:08:57 And once that nonconformity is locked in for that
16:09:00 intensity, downtown lose it.
16:09:02 It continues.
16:09:02 And it can be changed over time.
16:09:05 >>JOHN DINGFELDER: So even if they voluntarily lowered
16:09:11 perhaps their intensity in later years, you felt your
16:09:14 role interpreting 3-3 was to look back at what the use
16:09:19 was in 1945?
16:09:22 >>CATHERINE COYLE: Based on that rule, yes.
16:09:27 >>JOHN DINGFELDER: So if there was enough evidence in
16:09:30 '45 to say there was hard liquor there, even though
16:09:31 they may have gone with just beer in later years, you
16:09:31 felt that would suffice.
16:09:33 >>CATHERINE COYLE: Correct.
16:09:35 >> Any other questions of council?
16:09:40 I guess a motion to close.
16:09:42 >>GWEN MILLER: So moved.
16:09:43 >>JOHN DINGFELDER: Second.
16:09:44 >>MARTIN SHELBY: Before you do that, council, I just
16:09:46 want to be clear if there's no other questions of the
16:09:51 tones for the witnesses because once you close the
16:09:53 public hearing, I don't want you to have to reopen it.
16:09:56 So as long as that being the case.
16:09:58 There's one other issue that I would like to do that I
16:10:00 did not do.
16:10:02 I'm sorry?
16:10:04 >>THOMAS SCOTT: We asked for speakers.
16:10:10 >>JOHN DINGFELDER: We asked for speakers midstream.
16:10:12 >>MARTIN SHELBY: We asked for public comment.
16:10:15 >>THOMAS SCOTT: Once you have public comment, that's
16:10:23 >>MARTIN SHELBY: The ex parte communications, I don't
16:10:25 believe council has had any ex parte communications
16:10:30 verbally that they have disclosed.
16:10:32 And I see no response that would indicate that they
16:10:38 There have been some e-mails that have gone to City
16:10:40 Council by the attorney.
16:10:41 They have been copied to each other as well.
16:10:44 They are aware of what those documents are.
16:10:47 But they have not been placed in the record as yet.
16:10:51 I'm sorry?
16:10:55 >>CHARLIE MIRANDA: I would ask after you finish.
16:10:58 >>MARTIN SHELBY: I would ask by motion and vote that
16:10:59 you receive and file the documents that have been
16:11:04 previously sent to City Council by e-mail.
16:11:06 >>GWEN MILLER: So moved.
16:11:07 >>CHARLIE MIRANDA: Second.
16:11:08 Mr. Chairman, I might speak to this.
16:11:10 Mr. Chairman, on 6-2-09 at 11:39 a.m., I received an
16:11:19 e-mail from Mr. Martin Shelby, and he talks about the
16:11:23 appearance of an article in the newspaper as a
16:11:26 quasi-judicial matter, and please refrain yourself
16:11:29 from reading it, drawing any conclusions or
16:11:32 references, and I especially caution against
16:11:34 commenting on this matter.
16:11:36 I want you to know that I adhere to all those.
16:11:43 Called and told me this immediately.
16:11:45 I'm not going to tell you that I didn't see the
16:11:47 photographs because I did.
16:11:48 I am going to tell you that I didn't read the articles
16:11:50 and I want to present that to the clerk.
16:11:56 >>MARTIN SHELBY: May I inquire, Mr. Chairman?
16:11:58 Mr. Miranda raises a very good point.
16:12:00 And neither attorney has, but we might as well do it
16:12:02 at this point just in case there is an issue.
16:12:05 My understanding is there were newspaper articles, and
16:12:08 Mr. Miranda, once I learned about it, I did send out
16:12:12 that e-mail to inform you.
16:12:13 Just for the purposes of the record, and for the
16:12:15 purposes of the clarity and the integrity of the
16:12:19 decision of this board, is there any member of this
16:12:23 board who feels that seeing those articles or knowing
16:12:28 of their existence or perhaps learning in any way what
16:12:31 may or may not have been in there, would that
16:12:36 influence your decision in any way?
16:12:37 If there's anybody who feels that the appearance of
16:12:41 those articles would in any way have influenced your
16:12:43 decision that you are about to make, would you please
16:12:45 indicate so by saying outloud?
16:12:49 I hear no response.
16:12:50 Thank you, Mr. Miranda.
16:12:54 And I believe there's a motion.
16:12:56 >>THOMAS SCOTT: There's a motion and second to
16:12:57 All in favor signify by saying Aye.
16:13:01 Motion to close?
16:13:03 >>JOHN DINGFELDER: Clarification on the point that Mr.
16:13:06 Shelby just raised.
16:13:07 I didn't see the article.
16:13:10 So I don't want there to be an influence since we are
16:13:12 talking about inferences and presumptions that I saw
16:13:16 the article.
16:13:16 >>THOMAS SCOTT: I didn't see them either.
16:13:19 >>MARTIN SHELBY: If you want to state publicly.
16:13:24 We have we have had two members state publicly for the
16:13:27 record: I have not seen it either.
16:13:31 >>MARY MULHERN: I read an article before I saw your
16:13:34 And actually, I didn't see anything in there that I
16:13:36 hadn't already seen on the tapes of the -- and I
16:13:40 didn't really learn anything that we didn't hear today
16:13:44 or from the record.
16:13:45 So I did read something, but it's not going to
16:13:49 influence me in any way.
16:13:51 I did not learn anything that I didn't already know.
16:13:56 Maybe I'm not a good reader.
16:13:58 >>THOMAS SCOTT: Let me just state, because I'm really
16:14:01 concerned that we are stretching it here.
16:14:02 But let me just state for the record, I didn't read
16:14:05 the article nor saw them.
16:14:06 I did read all of the material that was given to us by
16:14:12 I didn't read the e-mail.
16:14:13 I saw the DVD and record and all this, too.
16:14:17 But I'm concerned that by reading the article in the
16:14:19 paper that now we are going to that extent, that we
16:14:24 have to clarify that on the record?
16:14:27 I mean, I'm note accustomed to this.
16:14:29 I'll be honest.
16:14:31 This proceeding to me has been very baffling, very
16:14:36 I'm just telling you, being honest.
16:14:41 I have been hearing these things for 12 years.
16:14:43 And this really got me.
16:14:49 It's unusual that we spend 45 minutes on a motion.
16:14:55 >>JOHN DINGFELDER: I just wanted to disclose that I
16:14:58 hadn't seen it because Mr. Shelby insinuated that
16:15:01 perhaps council had seen the article, and I hadn't
16:15:03 seen the article.
16:15:03 >>THOMAS SCOTT:
16:15:04 >>THOMAS SCOTT: Well, I understand the issue of
16:15:06 keeping the record clean and pure but I'm just
16:15:08 concerned about -- and it should not be by law, you
16:15:11 should not have any ex parte communication.
16:15:13 I'm aware of that.
16:15:13 But I'm just concerned now that if I if I pick up my
16:15:19 newspaper, if it's going to a vote, I'm just concerned
16:15:22 about that, Mr. Shelby.
16:15:24 >>MARTIN SHELBY: Council, and I appreciate,
16:15:26 Mr. Chairman, you raising that issue.
16:15:28 And I apologize to council.
16:15:29 But I will have to share with you that this particular
16:15:35 case has raised so many issues on so many matters that
16:15:42 in an abundance of caution, I believe for the sake of
16:15:46 keeping the record as clean as possible, and to
16:15:49 protect the city's position, obviously, and the
16:15:52 integrity of your position, I apologize for having to
16:15:55 do that.
16:15:55 I normally do not.
16:15:57 These are extraordinary circumstances, and
16:15:59 extraordinary cases.
16:16:01 >>THOMAS SCOTT: Okay, there's a motion to close.
16:16:03 All in favor signify by saying Aye.
16:16:07 What's the pleasure?
16:16:08 Council Mulhern.
16:16:10 >>MARY MULHERN: I would move to -- what are we --
16:16:18 affirm the decision of the Variance Review Board up
16:16:24 holding the zoning administrator's decision.
16:16:33 >> Second.
16:16:33 >>MARY MULHERN: And I would do that based on the fact
16:16:36 that, I mean, the same grounds as --
16:16:46 >>MARTIN SHELBY: It would be on the basis of the
16:16:48 criteria of the standard of review in section 27-373.
16:16:56 >>MARY MULHERN: Based on standard of review, based on
16:17:09 the fact that the Variance Review Board's decision was
16:17:18 supported by competent, substantial evidence, I know
16:17:20 there was a lot of talk, because this was so long ago,
16:17:23 and we had to base this on testimony that we heard in
16:17:28 the previous hearings of people had attended this bar,
16:17:36 bar/restaurant, and to the photograph that we saw, and
16:17:40 to the records, you know, there might be some little
16:17:45 bit of doubt about whether this was a bar at some
16:17:49 But over a period of how many however many years, I
16:17:53 think that it was quite clear that this was operating
16:17:57 as a bar, and I don't feel that there was any -- there
16:18:01 was substantial, competent evidence to show that it
16:18:05 was either not operating as a bar during the period
16:18:08 where it would have to have abandoned that for 30 days
16:18:09 or the period where they would have had to abandon it
16:18:16 for 60 days.
16:18:17 So I didn't see that.
16:18:20 I felt that due process was accorded, and that the
16:18:26 essential requirements of the law were observed during
16:18:29 both of those proceedings.
16:18:32 So for that reason I would move to uphold the
16:18:40 >>THOMAS SCOTT: Is there a second?
16:18:42 >>JOSEPH P. CAETANO: I second it, Mr. Chairman.
16:18:43 >>THOMAS SCOTT: The motion is to uphold the decision
16:18:46 of the zoning administrator and is the zoning, the
16:18:48 Variance Review Board.
16:18:51 Councilman Dingfelder on the motion.
16:18:53 >>JOHN DINGFELDER: Thank you.
16:18:56 First I want to say that I think both sets of
16:19:02 attorneys did a very good job presenting the evidence.
16:19:05 I think that procedurally they handled themselves very
16:19:09 well and in an ethical way through this process, and
16:19:13 we appreciate it, because obviously it's not an easy
16:19:17 process, and one that we are all not really used to.
16:19:25 I definitely agree with Ms. Mulhern on this.
16:19:29 Can we say that it's absolutely, we are 100 percent
16:19:32 sure that was going on in June 1945, whatever the date
16:19:38 I don't think that evidence has been presented either
16:19:40 But I think that that's not the standard.
16:19:43 I think the standard all along is competent,
16:19:45 substantial evidence.
16:19:46 I think there was competent, substantial evidence to
16:19:48 support Cathy Coyle's decision, that the VRB saw it
16:19:52 the same way, and I believe that it's fair today.
16:19:54 I think Mr. Mechanik and his team did a good job of
16:19:57 trying to throw some question and doubt at that based
16:20:00 upon certain theories and that sort of thing, but I
16:20:05 think at the end of the day some deference is deserved
16:20:09 by the VRB in that regard and I'll support the motion.
16:20:13 >>THOMAS SCOTT: Move and seconded. Seconded by
16:20:15 councilman Caetano. All in favor signify by saying
16:20:20 Madam clerk?
16:20:21 >>THE CLERK: Motion carried with Saul-Sena being
16:20:24 >>THOMAS SCOTT: Thank you.
16:20:29 That concludes our hearing on that particular issue.
16:20:31 We are still in session.
16:20:37 Hold your conversation down.
16:20:38 We are still in session.
16:20:41 We are still in session.
16:20:42 [Sounding gavel]
16:20:46 We are still in session.
16:20:47 This meeting is not over.
16:20:48 Thank you very kindly.
16:20:49 >>JOHN DINGFELDER: If you can leave quietly.
16:20:54 >>THOMAS SCOTT: Thank you.
16:21:08 >>THOMAS SCOTT: We want to ask to this last I shall
16:21:11 issue that we asked the attorneys to come back to and
16:21:15 come back to us.
16:21:16 This will be our last item.
16:21:18 We asked the attorneys --
16:21:21 >>MARTIN SHELBY: Mr. Chairman, I wanted to thank city
16:21:25 attorney Chip Fletcher who also had the opportunity
16:21:30 this afternoon while I was in this hearing to refer to
16:21:33 Robert's Rules of Order.
16:21:35 I have had a brief opportunity to do it, and I do
16:21:37 concur with his decision.
16:21:38 With regard to a motion to reconsider, according to
16:21:42 Robert's Rules of Order a motion to reconsider cannot
16:21:44 be reconsidered if it is voted on and lost, the motion
16:21:48 to be to reconsider cannot be renewed except by
16:21:53 unanimous consent.
16:21:56 By the same principle, that question can be considered
16:22:00 twice unless it was materially amended during its
16:22:02 first reconsideration.
16:22:03 So quite frankly, council, consistent with council's
16:22:06 rules, a unanimous vote to waive the rules to allow
16:22:10 this to happen but a vote to reconsider cannot be
16:22:12 renewed except by unanimous consent.
16:22:19 >>JOHN DINGFELDER: So who can make the motion?
16:22:22 >>MARTIN SHELBY: A motion was made and seconded.
16:22:30 It was made by Mr. Caetano. I don't recall who the
16:22:33 second was.
16:22:34 But that being the case, if there is any objection to
16:22:36 that motion being taken up, then that motion is out of
16:22:48 Unless there is objection, the motion can't be -- can
16:22:54 be taken up F.there is an objection then the motion to
16:22:58 reconsider cannot be reconsidered.
16:23:00 >>JOHN DINGFELDER: So anybody can make the motion?
16:23:02 >>MARTIN SHELBY: Well, the motion was made to
16:23:04 The question is whether or not it's by unanimous
16:23:07 consent, if there is an objection, then it can be.
16:23:10 >>CHARLIE MIRANDA: I may have to rule myself out of
16:23:17 But I want to help the gentleman, but I also want to
16:23:20 stay within the guidelines of the rule.
16:23:23 And this case we were just talking about is just as
16:23:25 difficult if not more difficult than the one we had
16:23:27 here in the last three and a half hours or two and a
16:23:30 half hours or whatever.
16:23:32 I'm certainly not opposed to reconsidering something.
16:23:34 However, there's some caveats.
16:23:38 I'm not going to sit here and listen to the same thing
16:23:41 on the same density on the same problems on a
16:23:45 different spin.
16:23:46 That I'm not going to do.
16:23:48 So I don't see how we can communicate that without
16:23:51 violating any law.
16:23:52 I don't know if there is law to that point.
16:23:55 So what I'm saying is, this is a very sensitive issue.
16:23:58 These are issues that I don't speak to anyone
16:24:02 regarding these issues, I'm sure in this body no one
16:24:05 So what I'm saying is, how do we accomplish something
16:24:11 and not put ourselves in a box where the same thing is
16:24:17 There was an objection years ago under the little M's
16:24:23 bill, big M and little M, it took the majority of
16:24:27 council to even hear something that was objected to by
16:24:30 the Planning Commission, you had to override it with
16:24:33 five votes.
16:24:36 Am I correct with that?
16:24:41 You know, I'm Spanish.
16:24:44 But what I'm saying is, I don't want this to -- those
16:24:48 things have changed.
16:24:49 But, at the same time, I'm not going to hear that case
16:24:52 again with the same -- to get another shot at the
16:24:57 apple to go back?
16:24:58 I hope he does.
16:24:59 >>MARTIN SHELBY: If I can, just to give you a little
16:25:01 bit of history, very briefly, there was a time that
16:25:05 council's rules allowed motions to reconsider on
16:25:07 quasi-judicial matters.
16:25:09 Council made that decision to not allow that because
16:25:12 did it give multiple bites at the apple for the same
16:25:15 purpose on the same kind of issues you raise.
16:25:20 >>CHARLIE MIRANDA: One more.
16:25:21 I do believe to his own defense that he was the one
16:25:24 that was confused, not the Planning Commission,
16:25:26 because he referred to the Planning Commission as they
16:25:29 thought this was a hearing for land zoning, not for
16:25:34 plan amendment.
16:25:35 And I told myself, how in the world can he say that?
16:25:38 These are very competent people.
16:25:40 But at the same time, I felt sorry for him.
16:25:43 I felt that he's the one that was, I hate to say this,
16:25:47 but putting the cart before his own case.
16:25:55 >>THOMAS SCOTT: Councilman Dingfelder.
16:25:58 >>JOHN DINGFELDER: We don't want to beat a dead horse,
16:26:01 but here's a difference of what I see this morning and
16:26:04 And I did speak to him because it's not a zoning, it's
16:26:07 the legislative, and we are allowed to speak with the
16:26:11 applicant during a legislative process.
16:26:13 It's my understanding the differences difference now
16:26:16 Charlie is this afternoon, compared to this morning,
16:26:19 is the fact that he now understands that he can refile
16:26:23 his zoning petition, okay, with a PD site plan, and
16:26:27 have that run at the same time as his comp plan
16:26:33 Apparently it's not something he was aware of before
16:26:35 or whatever, okay, which, it's my understanding a lot
16:26:39 of the of the questions that arose at the Planning
16:26:41 Commission and arose here that night -- and I wasn't
16:26:44 here but I heard about it -- were detailed questions
16:26:47 that could be answered if somebody had a PD site plan
16:26:50 to answer them.
16:26:51 So are we giving him another bite at the apple?
16:26:56 But I would argue it's a different apple, and now he
16:26:58 can do a PD site plan, re file that, and let it run
16:27:01 together, and that way Linda's questions or anybody
16:27:03 else's questions about the details could be answered
16:27:06 because it's running together.
16:27:09 >>THOMAS SCOTT: And I agree with Mr. Miranda.
16:27:13 He can go with density.
16:27:15 Still it was a PD plan.
16:27:19 That's a big issue.
16:27:21 >>JOSEPH P. CAETANO: That's his intent, Mr. Chairman.
16:27:27 >>THOMAS SCOTT: The question is, is there unanimous
16:27:29 vote or consensus to rehear or reconsider the motion?
16:27:34 So there's a motion on the floor.
16:27:35 The question now, do we carry this motion?
16:27:40 He made the motion.
16:27:41 It what was seconded to reconsider.
16:27:43 That was the issue.
16:27:44 So we put that on hold till you all come back.
16:27:48 >>MARTIN SHELBY: A motion is in order unless somebody
16:27:52 >>JOHN DINGFELDER: Vote on the motion and see if
16:27:57 anybody objects.
16:27:58 >> you.
16:27:58 >>MARTIN SHELBY: No, if the objection is raised the
16:28:00 motion is out of order.
16:28:01 >>THOMAS SCOTT: So then is there an objection to the
16:28:04 Okay, then, no objection, we go with the motion.
16:28:08 Then there's a motion made for reconsideration.
16:28:10 All in favor signify by saying Aye.
16:28:13 >>MARY MULHERN: Well, wait.
16:28:18 >>JOHN DINGFELDER: Does that kill it?
16:28:28 >> No.
16:28:29 The motion passed.
16:28:29 So now it's on the floor for reconsideration.
16:28:32 >>JOHN DINGFELDER: Well now we schedule a date.
16:28:34 >>MARTIN SHELBY:
16:28:38 >>STEVE MICHELINI: Yes, sir, we need at least 90 days.
16:28:40 So we respectfully request that you not hear this for
16:28:42 at least 90 days.
16:28:46 >>THE CLERK: Mr. Chairman, I believe to have the plan
16:28:48 amendment rescheduled is going to require another
16:28:50 resolution prepared to set a public hearing.
16:28:52 >>JOHN DINGFELDER: So why don't we leave in the limbo
16:28:55 and come back to us?
16:28:57 >>STEVE MICHELINI: That's fine.
16:28:59 We can have him work with staff.
16:29:03 I--Mr. Goers, do you want to address this issue?
16:29:06 >>CATHERINE COYLE: Land development.
16:29:09 The resolution actually comes from the legal
16:29:11 department once the application is filed and
16:29:14 So you probably could direct the resolution to come
16:29:17 back down.
16:29:18 I would wait, though.
16:29:19 We could inform when it occurs, the legal department.
16:29:23 Because we have to wait for the PD application to be
16:29:25 filed to figure out which date they are actually going
16:29:27 to come to reset the zoning hearing.
16:29:31 >>THOMAS SCOTT: I understand that the zoning and PD is
16:29:34 supposed to run concurrently, is that right? Or track
16:29:36 each other?
16:29:37 There might be a 30 day difference, I understand.
16:29:39 >>CATHERINE COYLE: There was a 30 day separation
16:29:41 between the adoption of the two as required by code.
16:29:43 The closest you can get is the adoption of the plan
16:29:45 amendment with the first reading of the rezoning.
16:29:47 The adoption of the rezoning will be 30 days later.
16:29:54 >>JOHN DINGFELDER: The first reading together?
16:29:57 >>> Could you potentially do the first readings
16:29:59 What happens at the end of the process, the plan
16:30:01 amendment adoption is separated by 30 days from the
16:30:05 The rezoning adoption has to occur 30 days after.
16:30:10 >> I would do the first reading together.
16:30:13 That way if there's any questions on the PD it might
16:30:15 help people with their concerns.
16:30:19 >>MARTIN SHELBY: I want to share a case that came
16:30:23 before council where both pretty much concurrently or
16:30:27 at the same time, that is, a question by the judge as
16:30:30 to whether council applied the right standard to each
16:30:32 of the cases.
16:30:34 >>MARY MULHERN: That's what I wanted to address, and I
16:30:40 think it's something you should come back to us with,
16:30:42 because I think when we changed our process to allow
16:30:45 that, it was a mistake.
16:30:47 And I don't think we should be doing that.
16:30:50 We changed our process to hear land use changes
16:30:53 together with zoning.
16:30:54 >>MARTIN SHELBY: That was a result of a negotiated
16:30:58 settlement that came back to council.
16:31:00 That was a result of litigation.
16:31:03 And that's what has made --
16:31:07 >>MARY MULHERN: I understand that.
16:31:08 What I'm saying, shouldn't we not do that anymore?
16:31:14 Shouldn't we change that process?
16:31:17 >>MARTIN SHELBY: You don't have to do that.
16:31:18 It would be my recommendation learning what we did
16:31:20 from that case is to keep them very separate so a
16:31:23 judge would never put the city in a position that the
16:31:25 City Council found itself in.
16:31:26 >>MARY MULHERN: Just excuse me.
16:31:28 We were not doing that when I first started.
16:31:31 Then we changed the process to allow that to happen,
16:31:34 We changed our rules.
16:31:36 Is that what it is?
16:31:38 >>MARTIN SHELBY: The rule now is that the rezoning
16:31:39 application may not be adopted until 30 days after the
16:31:42 land use plan is adopted.
16:31:43 >>MARY MULHERN: Okay.
16:31:45 >>JOHN DINGFELDER: We can hear the first hearing
16:31:50 We just can't adopt it together.
16:31:51 >>MARY MULHERN: The point is we don't want it.
16:31:54 That's what got us into trouble.
16:31:56 Why would you?
16:31:56 >>JOHN DINGFELDER: Well, we can argue that another
16:31:59 >>MARTIN SHELBY: My recommendation to council is
16:32:03 through a motion direct the legal department to
16:32:04 prepare the resolution to set this at least 90 days
16:32:07 >>CATHERINE COYLE: I just spoke with Mr. Fletcher as
16:32:11 I recommend you direct the legal department to prepare
16:32:13 the resolution and set it for the date as such time
16:32:16 the PD application is prepared to be set scheduled by
16:32:19 the zoning administrator.
16:32:20 That way we can coordinate in-house.
16:32:30 >>THOMAS SCOTT: I'll tell you.
16:32:32 >>CHARLIE MIRANDA: Mr. Chairman, I am going support
16:32:37 Let me tell you, don't come to me with any deal like
16:32:40 you had before.
16:32:44 Scale this thing down, and I can talk because -- you
16:32:49 can talk on plan amendments.
16:32:51 If I see a plan amendment that's coming here an got
16:32:55 that kind of density, it may pass but it ain't passing
16:32:59 with my vote.
16:33:02 >>THOMAS SCOTT: There's a motion on the floor.
16:33:05 All in favor signify by saying Aye.
16:33:08 >>STEVE MICHELINI: Thank you very much, council.
16:33:12 >>THOMAS SCOTT: Is there anything else, council?
16:33:14 >> Move to receive all the documents.
16:33:20 >>THOMAS SCOTT: Before we leave, council, and Mr.
16:33:24 From my standpoint after this hearing today, we really
16:33:27 need to look at this whole process.
16:33:30 I'm just telling you.
16:33:31 I'm just telling you.
16:33:32 This needs to be addressed.
16:33:43 >>MARY MULHERN: We want our honorary law degrees.
16:33:46 I want mine out of Harvard.
16:33:49 >>THOMAS SCOTT: There's a motion.
16:33:49 All in favor?
16:33:51 We stand adjourned.
16:33:52 Thank you.
16:33:52 (City Council meeting adjourned at 4:34 p.m.)
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