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Minutes 03-02-76MI~YJTES OF P2EGULAR CiTY COUNCIL MEETING OF THE CITY OF BOYNTON B~AC~_, FLORIDA, ~LD IN CITY HALL, TUESDAY, ~.RCH 2, 1976 PRESENT Joe DeLong, Mayor JosephF. Zack, Vice Mayor Edward F. Harmening, Councilman Emily M. Jackson, Councilwoman Norman F. Strnad, Councilman Frank Kohl, City Manager Tereesa Padgett, City Clerk Robert B. Reed, Jr., City Atty. Mayor DeLong called the meeting to order at 7:30 P. M. He asked all to rise at the sound of the gavel for the invoca- tion given by Mx. Frank Kohl, City Manager, and requested everyone to remain standing for the Pledge of Allegiance to the Flag led by Couucilwoman Emily M. Jackson. Announcements Mayor DeLong requested that the public record reflect that he is both happy and proud to be Mayor of a City which has proven beyond a shadow of a doubt that patriotism~still exists with the great turnout of residents who greeted President Ford at Sunshine Square. He also read a list of organizations repre- sented ~ud thanked them for their response. Mayor DeLong then read a proclamation orocle~ming the weekend of March 13 and 14, 1976 as Festival o~ the Arts Weekend. Mayor DeLong referred to the next item on the Agenda and announced they were going to have to delay this for a period of time until the coffee is ready, He extende8 a warm, sin- cere and hearty welcome to the past Mayors pr~ and those also who are not and wishes for God's speed i~ry en- deavor. He then entertained a motion to suspend the regular order of business and revert to the next order of business, the M~nutes. Mr. Harmening moved, seconded by ~. Zack. Motion carried 5-0. (See Mins. of 3/16/76 P. 2) MINUTEs MINUTES - REGUi~ CIT_V COUNCIL MEETING BOSTON BEACH, FLORIDA MARCH 2, t976 Regular City Council Meeting - February 17~ 1976 Mayor DeLong announced that per the established policy, he would begin on his right. Mr. Zack and Mr. Harmening passed. ~s. Jackson referred to Page 23, second paragraph, fourth line, and .stated it should say: "The foundation for the police station was built for a future second f~oor." Mr Strnad replied that he had nothmng. Mayor DeLong stated'he had a clarification to make on Page 10, first paragraph, and read this paragraph. His statement in reply to this had been taken out of co~text and he clarified with stating the follow- ing: "l. Roberts Rules of Order Revised which was adopted by the City Council states as follows on Page 50: To re- scind may be moved by any member, but if a notice was not given at a previous meeting it requires a two-thirds vote or a vote of a majority of the enrolled membership. 2. Page 169: Any action or mnexecuted part of an order may be rescinded by a majority vote, provided notice has been given at the previous meeting or at the call for this meeting; or it may be rescinded without notice by a two-thirds vote or by a vote of a majority of the entire membership." Mms. Jackson stated that when they rescind a motion at the same meeting, it does take a two-thirds yore. Mayor DeLong continued that the above was taken from Roberts Rules of Order Revised. Furthermore, the~action to rescind was on a proposed ordinance and not an ordinance that was in effect, due to the fact that ten d~ys did not e~apse in order for the proposed ordinance to become effective. As a safeguard the City Attorney preoared an ordinance to rescind the pre- ~iously adopted h~tno% effective ordinance thereby disclaim- mng a~y alleged illegal action on the part of the majority members of the City Council. He believes everything was in order. Mayor DeLong then requested a motion for the adoption of the M~nutes of February 17 as corrected. -2- MINUTES - REGULAR CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA ~MARCH 2, 1976 Mr. Strnad moved for the adoption of the Minutes of the Regu- lar City Council Meeting of Tuesday, February t7, 1976, with the corrections and additions noted. Mr. Zack seconded the motion. Under discussion, Mrs. Jackson asked if they were correcting the Minutes or doing the whole thing over again and M~yor DeLong informed her that he read into the Minutes the proper way to rescind a motion as stated in Roberts Rules of Order as adopted. Mrs. Jackson requested that the City Attorney give a ruling on this at the next meeting. Motion carried 5-0. Reconvened City Council Meeting of February I7, 1976, held on February 18~ 1976 Mayor DeLong followed the same procedure with calling on the Council members starting at his right. Mr. Zack referred to Page 5 and stated it should have been: "has enough room to build a ho~se without the additional ~,000~ square~ feet? Mr. Harmening passed. M~rs.~JaCkson replied that she had uone. ~. Strnad passed. M~yor DeLong passed. M~s. Jackson moved for the adoption of the Minutes of the Reconvened meeting of February 17, 1976, held on February ~8, 1976, with the correction made by ~. Zack. ~. Zack secouded the motion. Under discussion, ~. Harmening advised that he would abstain as he was not present for this special meeting. Motion carried 4-1. PUBLIC AUDIENCE N~yor DeLong requested a~ybody in the audience wishing to address the Council to please step forward. He added that if there was anyone in the audience who wished to speak on any item on the agenda to please step forward and give their name to the City Clerk, ~s. Padgett, and she will call them when that is the order of business. ~. R. B. Vastine stated his name and informed the Council that he was speaking in two capacities, one as the President of the United Boynton Civic League and the other as Chairman of the Cardiac Task Force. He congratulated the officials and those responsible for their handling of that tremendous affair at Sunshine Square on Saturday. He explained how he thought it was very well handled. He continued that he also wished to talk about the Cardiac Task Force Committee and he named the persons on this Committee with ~imself. He in- formed the Council that they have been working very quietly with the problems on hand. On Februs~y 12, they had a meet- ing of this Committee and went over many of the problems involved in developing this program. A meeting was held with the hospital officials on February 19. They spent sever- al hours discussing the problems involved. He wants to com- mend the City and the rescue units for their cooperation. -3- MI~VJTES - REGUL.~ CiTY BOYNTON BEACH, FLORIDA COUNCIL MEETING ~J~CH 2, 1976 He explained how the big hangup was the base station at the hospital being based upon an assignment of a channel. The exact cost has not been determined. They are moving forward. They appreciate the tremendous cooperation from the hospital. The hospital is willing to work hand in hand with the City. Mayor DeLong thard~ed him. BIDS Five (5) 1976 (Police Special) Cruisers Two (2) 1976 Two-Door CQm~act Vehicles Mr. Kohl informed the Council that bids on the above were opened on Monday, February 23, 1976 at 3:00 P. M. in the Office of the Purchasing Agent, ~. William H. Sullivan. The Tabulation Committee recommends acceptance of the low bid from Adams Chevrolet Company of Delray Beach in the amount of $22,895.05. Copies are on file of the Tabulation Sheet, Proposal and Affidavit signed by Mr. Pete Weeks, Gen- eral Sales Manager of Adams Chevrolet Company. He has checked all other requirements and everything is in order. F~mds for this purchase are available in the Federal Revenue Sharing Fund Account No. 20-800. He concurs wit~ the recom- mendations of the Tabulation Committee. M~s. Jackson moved to accept the recommendation of the Tabu- lation Committee and ~. Kohl and purchase the five 1976 Police Special Cruisers ~ud two 1976 Two-Door Compact Vehi- cles from Ada~ Chevrolet Company of Delray Beach in the amount of $22,895.05 with funds to come from the Federal Revenue Sharing Fund Account No. 20-800. Mr. Harmening seconded the motion. Under discussion, Mr. Strna~ referred to the prices being so close on ali the items, some just about ~t00, and questioned if the price was the determining factor for purchasing Chevrolets over Chrysler products? Mr. Kohl explained that they considered service, the auto- mobile itself, etc. and the Police Department had recommended Chevrole~s. Motion carried 5-0. LEGAL Ordinances - ~nd Reading - PUBLic H~MING Proposed Ordinance No. 76-8 - RE: Amending Sections 30B-32 (H) & 30B-32 (I) (I) (b) 2c of Chaoter 30B of the Ordinances by Requirir~ Approval of City Council of Water & Sewer Connec- tion Charges to Grantors of Eas~ments~ Deeds~ Etc. M~. Reed read proposed Ordinance No. 76-8 on second reading by caption only. (5) -4- MINUTES - REGULAR CITY COUNCIL MEETING BOYNTON BEACh, FLORIDA ~-MCH 2, 1 976 Mayor DeLong asked if anyone in the audience wished to speak in favor of this ordinance and received no response. He then asked if anyone in the audience wished to oppose this ordinance and received no response. Mr. Zack moved for the adoption of Ordinance No. 76-8 on second and final reading. Mr. Strnad seconded the motion. Under discussion, ~s. Jackson stated that in spite of the fact that this is going to bring up Zill's fence, she still thinks this is ham stringing the Engineering Department and not a help. ~. Harmening state'd that he thought it was con- truly to the normal operating procedure in most cities and counties. If the sewer line was run in the original proposed location, the City would have been out of more than just a few fences. Mayor DeLong replied that this was because a th~ug~~ study was not made. When the study did come up, it was no~ necessary to sDead extra money. This ordinance is being put on the books so it will be under the control of the Gity Council, who are responsible for the taxpayers' money. This happened because the Engineering Department was permitted to go in ~nd mak~ arrangements for the granting of an easement. One property owner wanted to be compensated for Melaleuca Trees and a deal was made to give him a chain li~ fence an~ also 186 feet of 6~ clay pipe as a lateral and he was also not charged~ the $250 hookup charge. The City did not use the easement and ~lso the valuable trees were taken down by the owner afte~ he got the fence, etc. The sewer line was put on the man's easemen~ to the north and all that man go~ was a free hookmp. He believes they are protecting the taxpayers of the City in that the City Council must scrutinize. Mrs. Jackso= added that if this had gone before the City Council, she feels the Council would have taken word of the engineers and granted it. She also feels this is one incident out of many. She doesn't believe they should hold up things. Mayor DeLong informe~ her that all departments in this City are without power to make any committments when it comes to spending taxpayers, funds. This is policy. This comes under jurisdiction of the City Council. Mrs. Padgett then took a roll call vote as follows: Councilman Harmening - No Councilwoman Jackson No Councilman Strnad Aye Vice M~vor Zack Aye Mayor DeLong Aye Motion carried 3-2. At thistiime, M~. Kohl informed the Mayor that the coffee was ready and that he would like to proceed with the cere- monies. Mr. Harmening moved to revert to the previous order of business, seconded by M~. Zack. Motion carried 5-0. -5- MINUTES - ~GLSAR CiTY COUNCIL ~ETING BOY~ON BEACH, FLORIDA MARCH 2, 1976 Announcements (Continued) Special Occasion - Second Annual Past Mayor's Night I~troductions & P~esentations by City ~a~er Fr~W ~m. Kohl Stated it certainly was a great pleasure to present the awards to the former Mayors and present Mayor. He then made the following presentations: Mr. Fred Benson, Mayor in 1941, 1942, 1943 to May, 1944. Mr. Kohl announced that Mr. Benson was very ill and was unable to attend. Mr. W. T. Woolbright, Sr., Mayor in November ~948 to January 1949. Mr Alva Shook, Mayor in 1955. ~ · ~m. Kohl announced that Mm. Shook lives in Citra, Florida, and is unable to be here. ~. Stanley Weaver, Mayor in 1956. Mr. James J. Mahoney, Mayor in 1959 and 1965. Mr. Kohl announced that Mm. Mahoney was very ill and unable to attend· Mr. Harvey E. Oyer, Jr., Mayor in 1960. Mr. John L. Archie, ~yor in 1961 and 1963. ~. J. Willard Pipes, M~ayor from January 3 to August 6, 1962. Mm. Kohl announced that Mr. Pipes was very ill, but [~r. Gene Moore was present to accept his award. [~m. Thomas A. Summers, Mayor from August 20, 1962 to December 1962 and 1970. Mm. J. Allison Banks, M~yor in 1964. ~onl stated that ~. Banks was in India. ~. Walter A. Madsen, Mayor in 1966. Mr. Frank McCoy, Jr., Mayor from January 3 to March 1 967. Mm. ~chael V. Michael, Mayor from March, 1967 and in 1968. ~. Kohl announced that Mm. Michael was in Tennessee. M_~. Vincent Gallo, MayOr in 1969. Mm. Kohl announced that I~. Gallo was out of town. ~. Forrest Wallace, Mayor in 1971. -6- MIIHLTTES - REGULAR CiTY COUNCIL MEET_~G BOYNTON BEACH, FLORID_& MARCH 2, 1976 M~r. Robert B. ~xfron, ~yor in 1972. ~s. Emily M. Jackson, Mayor in t973. Mayor Joe DeLong, ~L~yor in 1974 and t976. M~. David Roberts, Mayor in 1975. M~. Kohl presented them with their awards and then asked everyone to give them a big hand. He then announced there would be a 15 minute break for coffee and cookies. Mayor DeLong then declared a 15 minute recess. He called the meeting back to order at8520 P. M. He announced there was plenty of coffee and cookies left and if anyone wanted, they m~y take them back to their seats and enjoy them during the remainder of the meeting. He then comolimented the City Manager. ~ Mayor DeLong then requested the indulgenceo~f the City Coun- cil and referred to being back under the order of business of Announcements. He informed the members that he believed it would be fitting and proper to sandwich in a request from a gentlemauu who was delayed by accidents in traveling from Miami. The members agreed. PUbLiC AUDIENCE (CSntinued) Mr. Clarence L. Smith stated his name and thanked the Council for the few moments of time he will take. He referred to a peculiar situation having come up in several counties through- out the State in regards to the new law requiring compliance with the ordinance ~o have wheelchairs get into olaces. His business is based completely uoon trade coming i~ with cars. w him to comply with this ordinance would be a hardship in ~ or several ways. He explained how it would be very hazardous for a person in a w~elchair to come into his store. Also, it would be absolutely imoossible for anyone in a wheelchair to work in the store as t~ey must helo unload and stack the products. He is asking for relief to-get a building permit to proceed with his building. The Building Department,s hands are tied and he would appreciate any help the Council can give him. Mayor DeLong requested the Building Official to comment. He added that if this is an adopted ordinance, he doesn't be- lieve this governing body can wave any portion of it, but he explained that it may be possible to make an amendment but it must coincide with the State law. Mr. Howell appeared before the Council and informed them that this is a drive-in dairy farm store a~ud it is a drive-thru style. The State law states that all commercial buildings shall comply and his hands are tied and this m~m had nowhere to go. -7- MINUTES - REGULAR CITY COUNCIL MEETING ~KMCH 2, 1976 BOtq~TON BEACH, FLORIDA ~yor DeLong then requested the City Attorney's opinion, He added that it was his impression that there is a State Statute involved and questioned if there was any flexibility in it and I~. Howell reoli~d, no. Mr. Reed agreed that basically what ~. Howell sa~d was correct and his hands are tied. He is not familiar with Mr. Smith's particular situation. This is not the first case the Building Department has been out in this position because of the inflexibility of the handicapped persons, law. The law is rigidly structured. He would assume the State Board has been besieged with requests such as this and understands they have not been able to give rulings how to apply this in an individual~case, There are several cases before their own Building Department with the same situation and it was hoped the passage of pending Ordinance No. 76-11 establishing a Building Board of Adjustments and Appeals could possibly liberalize this law. However, they don't have that Board right now. The ordinance has passed on first reading. He thinks possibly the soonest this ordinance would be effec- tive would be March 27 and the City Council would have to oass this ordinance on second reading at their next meeting and appoint members to the Board, For the Council to take it upon itself to rule on M~. Smith's request would set a bad precedent in view of several other cases pending in like cir- cumstances and not knowing the provisions of the handicapped persons' law. Mayor DeLong agreed and suggested that M~. Smith's only re- course would be to apply to the State Appeal Board. Mr. Howell informed him that ~. Smith must exhaust the City Board before applying to the State Board. i~or DeLong replied that he would have to wait ~ntil the ordinance be- comes final. ~s. Jackson asked if this would apply to drive-in banks also and ~. Howell informed her that it would apply to all com- mercial buildings. Mm. Harmening referred to Mr. Howell saying that Mm. Smith would have to sxhaust the local Board, and pointed out that the City did not have such a Board and questioned if it would be possible to go directly to the State Board? Mr. Reed replied that definitely in his opinion Mm. Smith had exhausted the present available remedies of this City. However, in the standpoint of time, he may still get a quicker ruling for the new Board when organized. Mr. Harmening suggested checkinglthe time element. ~. Smith asked if the City would accept a ruling from the State and Mayor DeLong replied that they would have to. ~. Smith informed the Council that he would proceed and thanked them for their time. Mayor DeLong then requested a motion to revert to the regular order of business. Mr. Harmening moved, seconded by Mrs. Jackson. Motion carried 5-0. -8- MIICJTES - REGULAR CITY COUNCIL MEETING Iw~LRCH 2, 1976 BOYNTON BEACH, FLORIDA I~GAL (Continued) Ordinances - 1 st ReadinM Proposed Ordinance No. 76-12 - _,RE: Amending Ordinance 73-15 Directing Disposition of Unexpended Portion of Revenue Sharing Funds Allocated for Expenses of Social Services for Poor & A~e5 ~. Reedrread proposed Ordinance No. 76-12 in its entirety. Mr. Harmening moved for the adoption of Ordinance No. 76-12 on first reading, seconded by ~m. Zack. No discussion. Mrs. Padgett took a roll call vote as follows: Motion Councilman Harmening - Aye Councilwoman Jackson Aye Councilman Strnad - Aye Vice Mayor Zack - Aye Mayor DeLong - Aye carried 5-0. Resolutions Proposed Resolution No. 76-H - RE: Authorizing Execution of Contract with City of Delray Beach for Purchase of Undivided One-Half Interest in Real Property as Site of South Central Regional We~tewater Treatment & Disposal Plant Mr. Reed read proposed Resolution No. 76-H in its entirety. ~s. Jackson questioned what happened if this grant was not awarded - do they get their money back? M_~. Reed replied that the gre~ut has been approved and accepted by both cities. He also thinks there is a contractural obligation of the U. S. to make the grant and a contractural obligation of both cities to accept it. Mayor DeLong stated he was concerned whether or not this reso- lution should include where the funds are going to come from for payment. He believes it should be specified that the funds should come from the Water and Sewer Funds. Mayor DeLong then referred to the Contract for Sale and Pur- chase and specifically referred to Section XI smd questioned why they would be splitting the interest since it was their money? Mrs. Jackson stated she thought Delr~v Beach would get interest on their money and Boynton Beach would get in- terest on their money. Mmjor DeLong replied that this per- tained to the money invested by Boynvon Beach and asked why do they have to divide the interest with Delray Beach? ~s. Jackson agreed and also questioned why the deposit should be held by Roger Saberson, what if something happens to him? She thin~ someone else should be named. * as an alternate or more clearly defined. (See Minutes of 3/16/76,P.2) --9-- Mi~-TES - REGULAR CITY COUNCIL ~E. ETiNG BOYNTON BEACH, FLORIDA ~'~RCH 2, i 976 Mayor DeLong asked if ~. Reed had reviewed this and ~. Reed replied: yes and added that it was passed by Delray Beach. He referred tO the contract ~der Section Xi where the typing changes and advised that he added the City of Boynton Beach here. The contract read initially that they were go~ug to get it all. Mayor DeLong requested a motion to have this contract renego- tiated with the City of Delray Beach and ~. Reed. He added that since they are putting $30,000 in escrow, they should not share the interest. M_rs. Jackson moved to have the City Attorney renegotiate it and also to have another name added. Mr. Zack seconded. Under discussion, Mayor DeLong clarified the motion was to renegotiate the contract in a more favorable light for Boynton Heach whereby the interest will go to Boyn- ton Beach and not be shared by Delray Beach and also another arrangement'whereby not only Roger Saberson is name~. M~. Reed informed them that he believed it was the law firm of Roger Saberson. He feels the money would be safe in a trust account. They want to put it in an interest bearing account. He understands the City. Co~ucil objects to a division of in- terest, but possibly they should not delay this and he referred to the closing date of March 29. He suggests passing the reso- lution in its amended form where he will add the monies will come from a certain fund and approve the contract providing the money is not put in an interest bearing account. He does not believe it should be an interest bearing account to begin witB, but if it is, they must accept the contract by March 29. Mayor DeLong explained that it was not the interest, but the principle of the thing. M~. Reed asked if they would approve the contract if Delray Beach agreed to have Boynton Beach receive interest? Mr. Zack pointed out that since Delray Beach has a copy of the con~ract with the o~mission of Boynton Beach, he will have to contact them about this. Mr. Reed replied that it wa~ up to Delray Beach whether they wanted to accept the contract approved by Boynton Beach. Mayor DeLong explained that he was not concerned with the rapid execution. ~s. Jackson suggested having a special meeting to discuss this ~fter it was amended. M~. Reed clarified that if the motion was passed, the resolution would be effective, but he was to renegotiate the contraet with Delray Beach. Mayor DeLong stated they would let this motion stand to renegotiate this particular ~ontract whereby if there is any interest due, that interest in its entirety belongs to Boynton Beach. Motion carried 5-0. ~oposed Resolution No. 76-I - RE: Authorizing Execution of A~reements with Seaboard Coastline Railroad M~. Reed read proposed Resolution No. 76-I in its entirety. -lO- MINU~S - REGULAR CITY~_ COUNCIL MEETING BOYNTON BEACH, FLORIDA ~MCH 2, 1 976 Mr. Harmening moved for the adoption of Resolution No. 76-I, ~econded by ~s. Jackson. No discussion. Mrs. Padgett took a roll call vote as follows: Councilman Harmening - Aye Councilwoman Jackson - Aye Councilman Strnad - Aye Vice Mayor Zack - Aye Mayor DeLong - Aye Motion carried 5-0. Proposed Resolution No. 76~J - RE: Authorizing Execution of Mutual Aid Fire Agreement with Delray Beach Mr. Reed read proposed Resolution No. 76-J. Mr. Harmening moved for the adoption of Resolution No. 76-J, seconded by ~s. Jackson. No discussion. Mrs. Padgett took a roll call vote as follows: Councilman Harmening - Councilwoman Jackson - Aye Councilman Strnad - ~ye Vice Mayor Zack - Aye Mayor DeLong - Aye Motion carried 5-0. Proposed Resolution No. 76-K - RE: Authorizing Water Supply Contract with Briny Breezes Mr. Reed read proposed Resolution No. 76-K. Mr. Zack moved for the adoption of proposed Resolution No. 76-K, seconded by ~. Harmening. No discussion. Mrs. Padgett took a roll call vote as follows: Councilman Harmening - Aye Councilwoman Jackson - Aye Councilman Strnad - ~ye Vice Mayor Zack - Aye Mayor DeLong - Aye Motion carried 5-0. Proposed Resolution No. 76-L - RE: Retaining an Assistant City Attorney Mr. Reed read proposed Resolution No. 76-L and noted that the word "unclarified'~ should be "unclassified". -11- MINUTES - REGUL_~R CITY COUNCIL ~TING BOYNTON BEACH, FLORIDA M~RCH 2 ~ 1 976 P~s. Jackson moved for the adoption of Resolution No. 76-L, seconded by Mr. Harmening. No discussion. Mrs. Padgett took a roll call vote as follows: Councilman Harmening - Aye Councilwoman Jackson - ~Je Councilman Strnad - ~je Vice Mayor Zack - Aye Mayor DeLong - Aye Motion carried 5-0. Other Legal Opinion Regarding Public Reqords Mm. Reed read his attached report regarding the above. At this time, Mayor DeLong noticed that Mm. Canon, the Chief Executive Director of the South Central Regional Wastewater Treatment & Disposal Plant, was present and asked him if he ~ had heard the election results from Delray Beach. ~. Canon replied that he heard an unofficial report that Mayor Scheifley had 65% of the vote. S~atus of Law Suits - Councilwoman Emily M. Jacks0~ ~. Reed advised that as requested by the City Finance Direc- tor, he prepared and sent the attached letter to Callaway, Carpenter, May & Company. He referred to the second case Zisted, Tisdale's Sanitary Service, In~., vs. Peabody, S. E., Inc., et al, and informed the Council that there was a hear- ing held on February 27 on the City's motion to dis~ss and judgment on the pleadings. The court took this case under advisement. Mr. Reed referred to the third case listed, J. Earl Pratt vs. Norman Strnad, et al, and informed the Council that this case was voluntarily dismissed on February 26, 1976, at the action of the plaintiff and is no longer pending. Mr. Reed referred to the fourth case listed~ Peninsular Properties, Inc., vs. City of Boynton Beach, ~ud informed the Council that the Stipulation for Dismissal was prepared and sent to the attorney for the plaintiff on February 27 and that case should be dismissed as well. Mr. Harmening questioned why they chose this route, as the case should have beenldropped for failure to prosecute. Mr. Reed explained that th~ plaintiff was satisfied with the condition existing in the new master zoning plan ~ud they agreed with the plain~ tiff to get it off the records and dismiss the case. ~. -12- MI~TES - REGUI~R CITY COUNCIL ME~TING BOYNTON BEACH, F,~OR_DA M~RCH 2, 1 976 Harmening asked if the stipulation of the agreement pre- ~ludvm them from changing the zoning in the future if this ground is zoned by court order? He believes Mr. Reed said he sent to the Peninsular Properties attorney a stipulation agreeing to the present zoning which this Council passed in rezoning the whole City and this is agreeable to them. TherefOre, if this stipulation beComes part of the court order ~lsmmsslno the olainti~'f's case, then the City is locked into this particular zoning on this parcel. Mr. Reed replied that they were not in any way. He explained that Peninsular Properties broUght a law suit against Boyn. ton Beach feeling their propertY should be zone~ in a parti- cular c~ass_f~ca~lon. The City in passing the new zonir~ put that oroperty intthat classification. They have only provided %hat the law suit is no longer pending. The Cit~ is not bound to keep that property as it is presently zoned. M~. Reed continued that through a lack of k~owledge or an oversight, there were fOur cases not mentioned in this letter. He referred to the Seminole Feed Case in which the City and Palm Beach County were involved with regards to the reloca- tion of the City water lines. This case is not pending. It was pending at the first of the year, but was concluded since he took ofx_ce. Another case that is pending is the Slurry Seal Case pending in the State of Texas and a Texas counsel represents the City. Another is the case brought by Santick and Nixon against the City and M~. Simon is representing the City. The only other case is a case involving Mr. Robert Field, which is an appeal of the municipal court ruling re- garding a violation. Request of Feb. 17th Recessed Meeting for Statements (in writing) about Police Station & Boat Park U. S. #1 a. Is this a Legal Method of Financing? b. Is this Deficit Spending? - Councilwom~u Jackson In reply, ~. Reed read his attached letter. R~s. Jackson stated she would like to comment. After she received this letter from M~. Reed, something was still bug- ging her. She called the Florida League of Cities Attorney, Mr. Michael, and he referred her to Section 166.241, Subsec- tion 3. She read this, but it still did not answer her ques- tion. She told Mr. Michael that they financed the first floor of tne_r police station by Pledging cigarette tax revenue. He replied that Yin= had to be hefore~9_7~ which it was, as See Mins.oi it would jeopardize the~-~t~-n~-n~if they did B/16/?~P.~ so now. Sn~ certainly woul~ not want to jeopardize their revenue sharing. This is information from the Florida League of Cities Attorney in Tallahassee. Mayor DeLong replied that they would t~ke this into consideration. -13- MIS-UTES - REGULAR CITY COUNCIL MEETING BOTNTON BEACH, FLORIDA ~RCH 2, 1976 Mayor DeLong then requested a reply to (b) and ~r. Kohl read the attached letters from M~. Krib~s and Callaway, Carpenter, May & Company. Mayor DeLong annon~ced the Chair would accept a motion to instruct the City Manager in conjunction with the City Attor- ney to proceed with all legal requirements in the consumr~m- tion of this loan taking into consideration that Mr. Reed will make a check that the State revenue sharing will not be placed in jeopardy. Mr. Zack so moved, seconded by ~. Strnad. Under discussion, Mmy~r DeLong clarified that the City Manager would be instructed ~o proceed with all legal requirements to consummate this loan for the purposes as outlined. Mr, Harmening stated that he has said before and will say again that expenditures of this nature should have been handled in the normal budgetary manner and should have been budgeted last year. Mayor DeLong replied that he has been in this business a long while and it is impossible to 'ncr se theom'l~ e i o er t .ac~ ir thi amount of ~n.e,/W~°~ ~ ~r~ D~o~e~re~s~m. ~ac~ng~-~a~$~-that she felt rather than to go ahead, they should wait s~dmi~~ an answer about jeopardizing the~-e~g~/-~t~revenue ~.' Mr. Zack replied that the motion included it was contingent upon this. M~s. Jackson replied that she thought they should wait for an answer. M~yor DeLong remarked that he who hesi- tates is lost. It is contingent upon the fact that the reve- nue from the sigarette tax will mot be jeopardized. Mrs. Jackson stated again that she thought they should find out before Mr. Kohl proceeds. Mrs. Padgett then took a roll call vote as follows: Council~n Harmening No Councilwoman Jack~on - No Councilman Strnad - Aye Vice Mayor Zack - Aye Mayor DeLong - Aye Motion carried 3-2. OLD BUSI~ESS Palm Beach County School Board - Mayor Joe DeLong M~yor DeLong recommended that the City Attorney be instructed to draft a resolution requesting this building when it is phased out to be ~urned over vo the City of Boynton Beach calling attention to the fact as to just exactly the present market value of the ten acres of land in the soUtd~ end is worth which was donated for the Technical School, also the amount of money spent putting in the road, also records as to how long back this City has requested this particular building and parcel of land be turned over to the City. (See Mins. of 3/16/7 P. 2) -14- MINUTES - REGULA~ R CITY CO~CIL BOYNTON BEACH, FLORIDA MEETING 976 He would like it explicit in the resolution that those build- ings and parcel of land belong to the taxpayers and should be returned to the taxpayers so they can get some benefit from ~.,Mr. Harmening so moved, seconded by Mrs. Jackson~ Under discussion, Mayor DeLong clarified that the motion would be to instruct the City Attorney to draft a resolution with the facts supplied by the City Manager as to the present market value of the ten acres of land for construction of the Tech- nical SchooI, also other expenses in excess of $45,000 for roads, etc., also prior requests. Also, the fact should be stressed that this is public property owned by the taxpayers and it is firmly believed it should be returned to the tax- payers for future use. Mrs. Padgett then took a roll call vote as follows: Councilman Harmening Aye Councilwoman Jackson Aye Co~sncilman Strnad Aye Vice Mayor Zack Aye Mayor DeLong Aye Motion carried 5-0. Palm Beach County Board of Commissioners - Mm~yor DeLong Mayor DeLong advised that he would like to renew the request for the 55 acres of land located at the South City limits from the County for recreational purposes in compliemce with the prospective forwarded to and accepted by the County Com- mission i~ 1974. This request is not a ~trip~.'~e. ag~e~meut~but an ouvrignt request for land to be deeded to Boynton Beach for recreational purposes. He would like to have a letter sent by the City Manager to the County Commissioners. M~s. Jackson so moved, seconded by Mm. Strnad. Under discus- sion, M~vor DeLong clarified that the motion was that such a letter be sen~. Motion carried 5-0. Consider Appointment of Assistant City Prosecutor (T~LED) Mayor DeLong informed the Council that he has made an attempt with phone calls to people outside the City, but is still waiting for replies. M~s. Jackson moved to strike the question of the appointment of an Assistant City Prosecutor from the agenda until someone comes forward about it. M~. Harmening seconded the motion. Motion carried 5-0. NOA~ -15- MINHTES - REGUL~L~ CITY CO~CIL MEETING BOYNTON BEACH, FLORIDa& ~RCH 2 ~ 1976 ADMINISTRATIVE COnSider~Request for Zoning Approval of Beverage LiCense - KaVin EnterPrises~ Inc,~ 816 N. Federal Highway . Mr.Kohl referred to the application and advised that it was in compliance. Mss. Jackson moved to grant the approval of a beverage license to Kavin Enterprises, Inc., 816 N. Federal Highway. Harmening seconded the motion. No discussion. Motion car- ried 5-0. Renovating Council Chambers - Councilwoman Jackson ~. Kohl stated that as they are aware, they have accomplished a great deal in the renovating of City facilities with the City forces.., i.e. 1st fl~or of City Hall, upgrading the offices at the water plant and sewer plant, utilizing the old library for the Building & Engineering Departments and reno- vating the Civic Center. At this time, he would like to begin upgrading and renovating the Council Chambers. He plans to panel all walls, check prices for upholstered seats with arm rests and look in~o the possibility of utilizing the space mow being used for s~anding room as additional office space is sorely needed in City Hall. This should not in ~ny way affect the seating capacity of the Council Chambers since they do have fire laws which allow a seating capacity of 350 and they are in violation of the fire laws if residents are permitted to stand blocking walk-w~vs and corridors. Of course, most of this work will be accomplished by City crews. If there a~e any objections to his plans, please let him k~ow. ~s. Jackson stated since she put this on the agenda, she would like to speak. She is in accord with Mr. Kohl with wanting to put offices in the back. She has received many comments from people in the County that they have the bright- est Council Cha~oers and she would not w~ut to see the walls paneled, but possibly painted to keep it bright. She doesn't think the present chairs should be replaced yet, as she k~uows what they went through with buying these chairs. Mayor DeLong replied that he thought they shoul~ get out of the country store era and go modern. They me~ have space, but do not have atmosphere and do not compl~ment the City. M~. Strnad compl~mented M~. Kohl and added that he thought it was long over-due to get this place in shape. M~. Strnad moved to direct the City Manager to proceed with the alterations of the City Hall Cha~ers, seconded by Zack. Under discussion, M~. H~rmening stated it seemed to him at the rate this City Council ms spending money this year, -16- MINUTES - REGULAR CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA ~CH 2, 1976 they would do well to postpone something like renovating this Chamber until sometime in the future.* He can see no reason to spend this amount of money for this project. He has heard no estimate for the cost, but believes it would be quite expensive. Mayor DeLong replied that it would go out for competitive bids. ~. Harmening remarked that it would still be expensive. ~s. Jackson referred to the present chairs still being good and ~yor DeLong informed her that they would have other uses for these chairs. M~s. Padgett then_took a roll call vote as follows: * See Mins. of 3/16/76, P.3., 1st Par. Councilman Harmening - No Councilwoman Jackson No Councilman Strnad Aye Vice Mayor Zack - Aye Mayor DeLong - Aye Motion carried 3-2. A~lmc~v~on for Peri, it to Solicit- Arthritis Foundation ~. Kohl informed the Council that everything was in order. Mrs. Jackson moved to grant permission to solicit to the Arthritis Foundation, seconded by Mr. Harmening. Motion carried 5-0. Approval of Bills ~. Kohl read the following bills for approval: Biscayne Fire Equipment Co. Globe Nomax Bun~er Coats & Pants for Firemen Pay from budgeted funds 001-865.76 $2,535.75 001-865.77 $t,840.75 Bid opened 10/27/75 4,376.50 Cynthia Lewis Server for Senior Citizens Blub - 2 weeks Pay from Federal Revenue Sharing Fund 020-~80 Ordinance #73-t5 passed 5/15/73 86.40 e Isiah Andrews Driver for Senior Citizens Blub - 2 weeks Pay from Federal Revenue Sharing Fund 020-880 Ordinance #73-15 passed 5/15/73 81.00 Sub, ers Electric Co. Additional electric work at maintenance garage Pay from Federal Revenue Sharing Funds 020-830 Bid opened 1/15/76 1,385.28 M~. Kohl also added: -17- M~TES - REGULAR CTmy CO~CIL ~m-_EG BOYNTON BEACH, FLORIDA MARCH 2, 1976 5. Hercules Tank & Iron Works~ 5,700.00 ~. Kohl noted the billsdescribed have been approved and verified bY the department heads involved; checked and ap- proved for payment by the Finance Director; funds a_~e avail- able in their respective budgets. He recommends payment of these bills. He also added that the bill from Hercules Tank and Iron Works came in late, but they need the money as the men stayed here during the rainy days and they had to pay them. Mrs. Jackson moved to pay the bills as recommended by the City Manager, seconded by ME. Zack. Under discussion, ~. Strnad referred to No. 4 and asked if this was part of the $2,200 job and the rest is due? ]~. Xohl replied that this was correct and he has the bill showing this is a partial payment. Motion carried 5-0. OTN_ER ~. Strnad stated he would l~ke to instruct the City Manager to notify the Florida Municipal League that in the future, the M~vor of this City will be the representative at any meetings and in his absence, the Vice Mayor will be the re- presentative. F~s. Jackson replied that they didn't need to notify them as this has been the policy. M~. Strnad moved that the above notification be sent, seconded by Mr. Zack. Motion carried 5-0. Mayor DeLong referred to ~s. Jackson bringing up a point regarding both cities of Delray Beach and Boynton Beach having indicated to the Director of the Wastewater Regional Plant their backing for the elimination of septic tank~ and strong opposition to them. He believes a letter was for- warded to the County Commission by the Director. The proper procedure would be to have the City Attorney draft a resolu- tion accordingly. He requested the City Attorney to draft this as soon as possible e~d notify the City Manager, who in turn will notify the Chair and he will call a special meeting for that specific purpose. ~s. Jackson requested that the meeting be held at 5:00 P. M., so all could be present. ~yor DeLong replied that this would be left to his judgment. M~. Zack suggested possibly having the E~ecu- tive Director bring them up to date and ~h%yor DeLong replied that this has all been taken care of. A letter has been sent and official action must be taken by this Council now. ADJOURNMENT b~. Strnad moved to adjourn, seconded by M~s. Jackson. Motion carried 5'0 and the meeting was properly adjourned at 9:45 P.M. -18- MINUTES - REGULa~ CITY COUNCIL M~ETING BOYNTON BEACH, FLORIDA ~L~nRCH 2, 1 976 CITY OF BOYNTON BEACH, FLORIDA BY / rOl~ Council ~ Co~l ~_ember ATTEST: City Clerk Respectfully submitted, Suzanne Kruse Recording Secretary (Three Tapes) -19- REF~ & SMODISr~ P,3- .oa~Rr...~o Feblmar 20 197 205 Da~ra Street, Su~g~~; ~ '~.g~-~o~/ : City of Bo~i~aeh, Florida Gentlemen: Please be advised that I have been requested to furnish your firm with a status report and opinion as to all litigation in which the City of Boynton Beach, Florida. in involved. The following is a brief summary of each case: 1. Bankruptcy of Rel-l%eeves; Inc., U.S. District Court for the Southern District of Florida, Case No. 75-1000-Bk-CF-B. The City has a claim against [his bankrupt in the amount of $317. 55 for water and sewer charges. The City is entitled to a lien against the bankrupt's property pursuant to Section 159. 17 of the Florida Statutes. -At this point we have no opinion as to whether [his account is collectable. 2. Tisdale's Sanitary Service, Inc., vs. Peabody, S.E., Inc., et al, Palm' Beach County Circuit Court Case No. 75-3162 CA(L) 01 C. This is a suit filed by Tisdales against the City of Boynton Beach and Peabody S.E. for an undetermined aznount in excess of $2, 500.00 for alleged unjust enric~hrnent in connection with pumping, cleaning and hauling sludge from [he waste water treatment plant of tie City. A hearing has been scheduled for February 27[h on several/VIotions including the City's R~otion for Judgment on the [Pleadings, which we feel sh~u!d be granted. %Ve are of the opinion that the cls~m of Tisdale, at least as against the City, has no nxerit. 3. J. Ear! Pratt vs. Norman. Strnad, et__al, Palm ]Beach County Circuit Court Case No, ~4-89 CA(L) 0t, referred ~o--as the "water rates" case. On January 19, 1976, the Court entered an Order Dismissing all prior Complaints and _Amendments .thereto which had been filed by the l~laintiff and gave the t~laintiff thirty days to ~ie an Amended Complaint. The Plaintiff has not done so, and [he thirty days have now expired. We are in th& process of preparing and filing a Motion to Dismiss the case with prejudice be cause we are of [he opinion [hat there is no merit to the Plaintiff' s contentions. Callaway, Carpenter, February 20, 1976 Page 2 May & Company 4. !~eninsular Properties, Inc,, vs. City of Boynton Beach, Palm Beach County Circuit Court Case No. 72 C 2650. This is an action which was filed by .the Plaintiff in 1972 to rezone three lots in the City of Boynton Beach. In 1975 the City rezoned the property to the classification desired by the Plaintiff. We have spoken with the t~laintiff~s attorney and are now in the process of sending him a Stipulation for Dismissal of the case with prejudice. 5. ~/iary Ludwig Sokal et al vs. John D. Wessel, et al, Palm Beach County Circuit Court Cas-e No, 75-3452 CA(L) 01 t~, .and Mazy Ludwig Sokai vs. John'I). Wessel et al, U.S. District Court for the Southern District of Florida, Case No. 76-8005-Civ-CF "WPB". The Palm Beach County Circuit Court case is an action for day,ages in excess of $100, 000.00 for alleged false arrest, false imprisonment, delineation of character, etc., arish~g out of the arrest of the Plainliff on a charge of prostitution or soliciting for prostitution, her subsequent conviction based upon her guilty plea, and her subsequent failure to pay the fine imposed by the Courg We are of the opinion that the case has no mer{t. The Court has already dismissed the Complaint, giving the Plaintiff twer~ty days .to amend. The Federal suit is one for damages and injunctive relief arising out of the same events. The claim for damages and injunctive relief is based upon alleged violations of the t~laintiff's Civil rights pursuant to the Federal Civil Rights Act. We are likewise of tile opinion that the Federal case is without merit. In both cases the City is represented by Cecil H. -A/bury who is the attorney for the city's insurance carrier. I-Ie is keeping us advised of all developments, tie has already filed a Motion to Disn-£iss the Federal case in behalf of all Defendants as well as a A4otion to Abate the Federal case until the t~alm Beach-Coun~y~ Circuit' ' Court action is concluded. 6. J. Earl Pratt vs. City of Boynton Beach, et al, Palm Beach County Circuit Court Case No. 75-4726 CA(L) 01 C, referred to as the "lime softening" ease. This is a class aciion instituted by the Plaintiff to obtain an injunction w!aic~ould prohibit the City from lnoving for~vard with its plans for the expansion and upgrading of its present water treatment facilities, pa-~'tieularly %~iJa regard to the installation of a tLme softening process. We are ;~,~f the opinion thai [his action is not meritorious. .We are now in the process of preparing a~d filing a Motion for Summary Judgment we feel should be granted by the Court. In the event we are successful with l/lis A~Iotion, we anticipate th~ the Plaintiff'naay prosecute an appeal. Callaway, Carpenter, May & Company February 20, 1976 Page 3 7. Rinker Materials Corporation vs. City of Boynton Beach, et ~l, Fourth District Court of Appeal, Case No. 75-1552 8nd 75-1553. This action was initially filed by lhe Plaintiff in 1973 to cause the City to issue a permit to reconstruct and restore Plaintiff's ready-mix concrete plant and for a court determination that the M-1 Industrial Zoning Classification of the'Code permits the use of Plaintiff's property as a ready-mix concrete plant. A final judgment was entered by the Circuit Court on July 21, 1975, in favor of the City based on its finding that the Plaintiff had failed to exhaust its administrative remedy and hence the Court was without jurisdiction of the matter. Plaintiff filed its Notice of Appeal to the Fourth District Court on September 2, 1975. Both above-referenced cases were consolidated for the hearing on appeal and the parties are presently in the process of preparing and filing appellant briefs. In both cases the City is represented by Ernest G. Simon, Esq., the former City Attorney. We are informed by Mr. Simon that he is confident the Appellant Court will c_onfirm the decision.qf the Circuit Court in these cases. 8. _City o~ Boynton Beach, et al, vs. Lehigh Portland Cement Company, Fou~h District Court of Appeal, Case No. 74-1544. Initially this action was filed by the~ company for a mandatory injunction requiring the City to issue a building permit allowing the construction of a ready-mix batching plant on its property and for a ~ determination that Plaintiff's property within Fne M-1 Industrial Zoning Classification permits the construction of such a plant, ghe Fifleenth Judicial Circuit Court entered its Order on the Complaint for injunction and declaratory judgment on October 9, 1974, directing that the City issue the requested building permit to Plaintiff. The City filed its Notice of Appeal on November 8, 1974, with the Fourth District Court of Appeal, the parties have filed all briefs in the appeal, and oral arguments were held on October 16, 1975. On December 19, 1975, the Fourth DistIffct Co6rt of Appeal entered its per quria-m decision ~/firr~_..ing ~_e Order of the Circuit Court. On December 23, 1975, the City filed its Petition for Rehearing requesting a clarification of the Fourth District Court of Appeals per quriam decision. ~Eqe Petition for rehe~aring was denied by the Appe~ar:t Court on December 29, 1975. Ernest G. SLmon, Esq., the former City Attorney, represents the City on ~his case and in view of his belief thai an apparent con~idt exists with lhe decision of the Appellaz'~t Court in this case with prior decisions of the Third District Court of Appeal, the City has' el'~cted to retain -Mr. Simon to file a t~etition for cer~iorary requesting a review of this coD-~ict by the Florida Supreme Court. At this point we e-~press no opinion regarding the possibility~ that the D~-torida Supreme Court will agree to review the decision in this case, or whether that Court would render a decision favorable to the City, assuming the req%~ested i~eview is granted. Callaway, Carpenter, February 20, 1976 Page 4 May & Company Hopefully the above listing of pending law suits in which the City is in¥olveii will assist your firm in completing tfae audit which you are presently perfoming. However, in the event you have any fur[her questions concerning the malters discussed above, do not hesitate to contact myself or,the Assistant City Attorney, Michael P. Smodish. Sincerely yours, ROBERT B. REED RB~mat c~f. _M r. Frank Kohl ~Mr. Ken Kribs . . - ~ebruary 24,-1976 Mayor Joseph DeLong and Council Members Boynton Beach, Florida RE: Public Records Dear Mayor and Council Members: As you know, at the regular meeting held February 17, 1976, Council passed Ordi- nance No. 76-3, which repealed previously adopted Ordinance No. 75-43. Upon the passage of Ordinance No. 76-3, a question was raised as to~ whether lhe repeal of Ordinance 75-43 violated lhe provisions of Florida Statute Chapter 119 entitled "Pub- lic Records." Accordingly, you requested that I render a legal opinion on this issue, Initially, I should point out that the quesiion being considered is not whether nicipa[ records are to be made accessible to. the. public, but rather, who is to have possession of these records and in what manner they are to be made 'available to the public. For the purpose of facilitating reference to the maiters discussed in this opinion, I have attached hereto copies of the ordinance involved and Chapter 119, all in their entirety. ~Iowever, I have summarized below the more pertinent requiremenis of Chapter 119 as they re[ate to the accessibility, control and retention of public records in the City of Boynton Beach. 1. As general state policy, all municipal public records shah at ali times be open for personal inspection by any person (sec. 119.01). In keeping with this policy, the elected or appointed municipal officer or office rs charged-by [aw with the responsibil- ity of maintaining these records shah be their custodian (sec. I19. 021). Charter' Section 66 designates the City Clerk as the custodian of municipal pub[ir records of the City of Boynton Beach. 2. The City Clerk, as officia[ custodian, is obligated to permit the copying of any of these municipal public records by any- person desiring to do so, under her super- vision or that of her designee. Further, the City Clerk should know the nature and location of these records so that reasonable rules pertaining to their copying can be adopted, and, if requested by. the Florida division of archives, an inventory of these documents including a scl/edu[e establishing a time period for their retention or dis- posal may be prepared (secs. 119. 07 - . 09). Mayor Joseph DeLong and Council Members !February 24, 1976 ]Page 2 3. ChapTer 119 does not require delivery of all public records to the City Clerk as custodian. The statute merely declares that the City Clerk shall receive possession of such records within ten days of demand therefor from "any person unlawfully possess- ing'' them. In my opinion, this requirement of delivery within ten days does not apply to the reteniinn of public records by the several City department heads, since they are not persons "unlawfully possessing" them. In fact, Chapter 119 contemplates that pub- li:c records of the various Cily departments st~ould be retained in the several depart- ments. Sections 1t9. 031 and 119. 08 provide that public records should be kept in the building or office in which they are ordinarily used, and the copying of these records is to be done in the room where they are kept. Thus, the respective department heads, acting as deputies of the City Clerk, are respor~sible for the control of the records in their possession. Each deparirnent head should keep a coniinuing schedule of the records coming into their possession and periodically should prepare and forward to the City Clerk an inventoried classification of the records in~ their files. In this connection you are advised thai the State of Florida has established a uniform system for disposition of public records under which %he Bureau of Archives and Records Management has deveIoped genera.l records retention schedules for records common to the various municipa[ities which indicate a suggested genere~l location, number of years of retention and whether a pariicular document should be microfilmed. These schedules confirm the'fact %hat many municipal records should be located within the particular depariment which customarily handles ihe processing of the records involved. In view of the foregoing, I have concluded that the repeal of Ordinance 75-43 by Ordinance 76-3 does not~iolate the provisiong of Chapter 119 because: (a) Sections 1 and 2 of Ordinance 75-43 unnecessarily amend the municipal charter by adding provisions already made applicable to the City of Boynton Beach by virtue of t~he enactment of Chapter 119; ~nd (b) Section 3 of Ordinance 75-43 which requires delivery of all public records to the City Clerk within ten days after receipt of any City official or employee is not authorized by Chapter 119. One final point should be emphasized. Under Section 119.09, the Division of Archives, I~Iistory and Records Management of the Department of State is required to give advice and assistance to public officials in the solution of problems of preserving, creating, filing and making available i/~e public records in their custody. I would strongly urge _.'~, ,'', I~EED 8: SAfODISIL I).i , February 20, 1976 Carpenter, A~ay & Comply ' ~N Beach. Florida 33401 . _ ' ~. Cit7 o~o~~eh, Florida l°lease be advised that I have been requested to furnish your firm with a status and opinion as to all litigation in which the City of Boynton Beach. ]Florida, involved. The following is a brief summary of each case: I. Bankruptcy of !qel-lqeeves; Inc., U.S. District Court for the Southern of Florida, Case No. 75-1000-Bk-CF-B. The City has a claim against this an]ount of $317. 55 for water and sewer charges. The City is entitled against the bankrupt's property pursuant to Section 159. 17 df the Florida _At this point we have no opinion as to whether this account is collectabl,e. 2. Tisdaie's Sanitary Service, Inc., vs. Peabody, S.E., Inc., et vt, Patn~ leach County Circuit Court Case No. 75-3162 CA[L} 01 C. This is a suit filed by against the City of Boynton Beach and Peabody S. ]~o for an undetermined nt iii excess of $2, 500.00 for alleged unjust enrichr~ent in connection with cleaning and hauling sludge from the waste water treatment pl~nt of the ~ hearing has been scheduled for February 27th on several Motions includLvg ]e City's A~otion fOr Judgment on the Pleadings, which we feel should be granted. )pinion that the claim of Tisdale, at leas~ as against the City, has no ~erit. 3. J. Earl Pratt vs. Norman Strnad, et al, Palm Bea6h County Circuit Court No. 74-89 CA(L) 0t, referred to as the "water rates" case. On January 19, the Court entered an Order Dismissing all prior Complaints and Amendments which had been filed by the Plaintiff and gave the Plaintiff thirty days to file ~ended Complaint. The Plaintiff has not done so, and the thirty days have now We are in the process of preparing and filing a IVIotion to Dismiss the case itt] prejudice because we are of the opinion that there' is no merit to the Plaintiff's ~t~ons. Callaway, Carpenter, A~ay & Company February 20. 1976 Page 2 4. Peninsular Properties, Inc., vs. City of Boynton Beach. Palm Beach County Circuit Court Case 1~o. 72 C 2650. This is ~n action which was filed by .the Plaintiff in 1972 to rezone three lots in the City of Boynton Beach. In t975 the City rezoned the property to the classification desired by the Plaintiff. We have spoken with the Plaintiff's attorney and are now in the process of sending ~ a Stipulation for Dismissal of the case with prejudice. 5. Mary Ludwig Sokal et al vs. John D. Wessel, et al, Pahu Beach County Circuit Court Case No. 75-2452 CA(L) 01 E, and. Mary Ludwig Sokal vs. John D. Wessel et al: U.S. District Court for t]]e Southern District of Florida, Case No,1. 76-8005-Civ-CF "WPB~'. The Palln Beach County Circuit Court case.is an action for daanages in ~xcess of $100, 000. 00 for alleged false arrest, false imprisonment, defamation of character, etc., arising out of the arrest of the Plaintiff on a charge of prostitution or soliciting for prostitution, her subsequent conviction based upon her guilty plea, and her subsequent failure to pay the fine imposed by the Cou-rt. We are of the opinion that the case has no merit. The Court has already dismissed the Complaint, giving the Plaintiff ~venty days .to amend. The Federal suit is one for damages and injunctive relief arising out of the same events. The claim for damages and injunctive relief is based upon alleged violations of the Plaintiff's Civil rights pursuant to the Federal Civil Rights Act. We are likewise of th..e opinion that the Federal ease is without merit. tn both cases the City is represented by Cecil H. Albury who is the attorney for the city's insurance carrier. He is keeping us advised of all developments. He .has already filed a Motion tu Dismiss the Federal case in behalf of all Defendants as Well as a Motion to Abate the ~ederal case until tl~e Palm Beach County Circuit Court action is concluded. , . 6. J. Earl Pratt vs. City of Boynton Beach, et al, Palm Beach County Circuit Couk-t Case Iqo. 75-4726 CA(L) 01 C, referred tu as the "Iime softening" case. This is a class action instituted by the Plaintiff to obtain an injunction whic~x~oi]Id prohibit the City f~x)n~ moving for~vard with its plans for the expansion and upgrading of its present water treatment facilities-particularly with regard to the installation of ~ lime softening process. We are of the opinion that this action is not meritorious. ~We are now in the .process of preparing and f/ling a 1VIotion for Surmmary Judgment we feel should be granted by the Court. In the event we are successful with this IVlotion, we anticipate that the Plaintiff may prosecute an appeal. ;CallaWay, Carpeuter, May & Company February 20, 1976 Page 3 7. !Rinker Materials Corporation vs. City of Boynton Beach, et al, Fourth iDistrict Court of Appeal, Case No. 75-1552 and 75-1553. This action was initially ~filed by the Plaintiff in 1973 to cause the City to issue a permit to reconstruct and restore Plaintiff's ready-mix concrete plant and for a court determination that the "A{-1 Industrial Zoning Classification of the ·Code permits the use of lPlaintiff's ;property ~as a ready-mix concrete plant. A final jndgmenl was entered by ~he Circuit Court on July 21, 1975, in favor of the City based on its finding that the Plaintiff had failed to exhaust its administrative remedy and hence the Court was without jurisdictio~ of the matter. PlainiJ~ff filed its Notice of Appeal io the Fourth District Court on September 2, 1975. Both above-referenced cases were consolidated for tt~e laearing on appeal and the parties are presently in. the process of preparing and fitir~g appellant briefs. In both cases the City is represented by Ernest G. Simon, Esq., the former ~'~{City Attorney. We are informed by Mr. Simon that he is confident the Appellant Court will confirm the decision of the Circuit Court in these cases. 8. City of Boynton Beach, et al, vs. Lehigh Portland Cement' Company, District Court of Appeal, Case No. 74-1544. Initially ibis action was ~ed by the- :-¢on~pany for a rnandatory injunction requiring the City to issue a building pernait allowing the construction of a ready-mix hatching plant on its property and' for a ii deteymination that Plaintiffts property within the M-1 Industrial Zoning Classification i' ' s the construction of such a plant. ~e Fifteenth Judicial Circuit Court entered per ~t . . · ~ts ~rXder on th p .. e Corn laint for injunction and declaratory 3udgmen~ on October 9, 1974, ' .... ~' . The ~t~ ~ dire~tin~ that the City issue the requested building permit to Plain.iff y Notice of Appeal on November 8, 1974, with the Fourth District Court of ~ppeal, parties have filed all briefs in the appeal and oral argu~nents were l~eld on 16, 1975. On December 19, 1975, the Fourth District CQ6rt of Appeal ' ?ed its per quriam decision affirming the Order of the Circuit Cour~ On Decernb~ [975, the City filed its Petition for Rehearing requesting a clarificalior~ of the District Court of Appeals per quriarn decision. ~he Petitiotl for rehearing '~ %vas denied by the Appellant _Court on December 29, 1975. Ernest G. Simon, Esq., the former City Attorney, represents the City on ..this case and in view of his belief that an apparent confiidt exists with the decision of the Appellant Court in this case with prior decisions of the Third District Court of Appeal, the City has elected to retain M~. S~imon to file a Petition for certiorary requesting a revie,v of this conflict by the ]~lo~ida Supreme Court. express no opinion regarding the possibility fl~at the Florida Supreme ~ourt w~ agree to review the decision in this case, or whether that Court would render a dec~sxon favorable to the City, assmning the requested review is granted. Callaway, Carpenter. February 20. 1976 Page 4 May & Company Hopefully the above listing of pending law suits in xvhich i/Ge City is involved will assist your firm in completing i/Ge audi% which you are presently performing. However, in the event you have any further questiqns concerning the matters discusse above, do not hesitate to contact myself or-the Assistant City Aitorney, Michael P. S~nodish. Sincerely yours, ROBERT B. REED RB~mat c~. ]Yir. Frank Kohl Mr. · Ken Kribs l~wrmn & SMODI$~; March 1, 1976 Mayor and Council Members City of Boynton Beach City Hall Boynton Beach, Florida Construction of second floor addition to Police Station, purchase of realty adjacent to boat ramp, and refunding of Police Building Revenue Bonds dated June 1, 1971 Dear Mayor and Council Members: In response to your request for an opinion relative the legality of the method of financing the above-referenced projects and whether the same constitutes "deficit spending", it is my understanding that the Council has passed several motions in- dicatingh its intention to proceed with this project by directing the City Manager to take the necessary steps prerequisite to the acquisition of a local bank loan in the araount of $666,261.00, repayable with interest at the rate of 7% per annum over a period of fifteen years solely from proceeds of the municipal cigarette excise tax. Initially, your attention is directed, in general, to Florida Statutes Section 168.111 which provides: "166.111 Authority to Borrow. - The governing body of every municipality may borrow money, contract loans, and issue bonds...to finance the under- taking of any capital or other projects for the purposes permitted by the State Constitution and may pledge the funds, credit, property and taxing power of the municipality for the payment of such debts and bonds." In my opinion, the above-enumerated purposes of the proposed project are both per- missible under the Florida Constitution and are specifically authorized under the provisions of Sections ? (2) and 7 (6) of the Charter of the City of Boynton Beach, Florida. In addition, pursuant to the provisions of Section ? (24), (26), (27) and 29), of the Municipal Charter, the City is vested with the following power: Mayor and Council Members March 1, i976 Page Two ? (2~)"The City of Boynton Beach, is hereby vested with full power and authority to provide by resolution for the issuance and sale of revenue bonds and/or certificates, without submitting the question of issuance of such bonds or certificates to a vote of the freeholders, to provide money to finance, acquire, purchase public facilities, including .... public parks ~ construct, improve and operate any...facility ~..undertaking or project which said City of Boynton Beach is authorized by law to acquire, con- struct, improve...and to provide that such revenue bonds or certificates, and interest thereon, shall be payable from revenues to be derived by the City from...any and all revenues from the municipal excise tax...Such resolution may be adopted at any regular or special meetinE by a majority vote of the City Council and at the same meeting at which it is introduced, to take effect immediately upon its passage. It is determed.ed and declared as a matter of le~islafive intent that'no election to authorize the issuance of revenue bonds or certificates under this act shall be necessary, No other proceedings or procedure of any character whatsoever shall be necessary or required for the issuance of such revenue bonds or cer~ifinates by the municipality; but such revenue bondS or certificates may be validated by Circuit Court decree, if desired, in the same manner as general obligation bondS are v~didSted." Paragraphs ? (28 and (27). The authority for the issuance of subject cer- tificates further provides that said revenue certificates authorized thereunder shall be special obligations of the municipality, shall be payable solely from and secured by a lien upon the revenue described in the enabling resolution, and shall not constitute,a charged lien or encumbrance, legal or equitable, against any other property of the City and shall not constitute a general obligation of the City which could be satisSed through the general tax power of the City. ? (29) "No procedures or proceedings ~ publications ~ notices$ consents, approvals, orders, acts or things by the City Council...other than those required by this Article, shah be required to issue any revenue bonds or to do any act or perform anything under this law, except as may be pre- scribed herein..." The question whether the City's pledge of future cigarette tax reve- nues constitutes "deficit spending" would possibly be better answered by the City's Financial Director or Fiscal Agent. However, presently, revenues from the cigarette excise tax are received by the City from the State Division of Beverage of the Depart- ment of Business Regulation as provided in Florida Statutes Secfion 210.20 (2a). Numerous Cour~ decisions have confirmed that a city may issue revenue certificates Mayor and Council Members March 1, t976 Page Three secured by anticipated future tax receipts, without an approving vote of the free- holders. In fact, the City of Boynton Beach has previously pledged its future receipt of cigarette tax income in the sale of a similar certificate in 1970 and a similar bond in 1971. Based on the above, it is my opinion that the City could lawTully finance the aforesaid proposed project by the issuance and sale of a municipal revenue certificate, provided initially that: 1. The City obtains a firm commitment to purchase said certificate payable from th income received from the cigarette excise tax in the amount and upon the terms and conditions previously mentioned; and 2. The City secures reasonably accurate estimates of the costs attendant to the completion of the proposed project, including (a) engineering, architectural and o.~her construction costs to be incurred in connection with the addition to the Police S~ation second Story; (b) closing costs on the proposed real estate purchase; (c) fis- cal and legal eXPenses to be absorbed with respect to the issuance and sale of said certificate; and 3. The City enters into a contract for the purchase of the parcel of real pro- perty adjacent to the municipal boat ramp at a price and upon such terms and condi- tions as v~ll assure the consummation of the transaction subject to the City's ability to secure the financing discussed above; and 4. The City Council evidences its determination that the proposed project is in the best interests of the City by adopting a resolution pursuant to the above- quoted provisions of Section 7 (24) of the Municipal Char~er, providing for the issuance and sale of a revenue certificate upon the terms set forth in the connmitment to purchase the 'same. RBR/s ROBERT B. REED City Attorney Mr. Frank Kohl, city Manager Kenneth L. Kribs, Finance Director P~arch 2, 1976 '"~J~ Proposed $600,000 bank loan to finance Police Station addition and purchase of realty adjacent to boat ramp. From a financial point of view, we would not consider t//atthe proposed lo~n constituted deficit spending. Deficit spending would imply that an organization's operating expenditures exceed that of its revenues. Although the proposed loan %.~u!d constitute debt financing, a term which would apply whenever any long term debt is ~ncurred, the import- ant factor to consider would be does the debt constitute sound financial policy? $~hen considering the proposed obligation, the answer to this question ~ould be positive as the balance would be maintained between expenditures including debt service requirements and anticipated revenues. Callaway, Carpenter, May & Company vt as contacted as to their opinion on the subject borrowing. ~neir opinion is as follows: We accept the definition of "deficit spending" as given in chapter 7 of Fundamentals of Governmental Accountinq, 2nd edition by Lloyd 14orey and Robert P. Hackett. This definition is as follows: "~.fnen long term obligations are entered into in order to provide funds for current operations or for emergency expenses, it is in evidence that a deficit exists, owing to the failure of revenues to meet current obligations. ~ne deficit is then said to be funded. It still must be met out of revenues but not out of revenues of a current period." On this basis, we feel that the issuance of long term debt to finance the purchase of intracoastal property and improvements to the Police Department building will not constitute deficit spending for two reasons: (1.) The expenditures are not to finance current operations; and (2.) ~ne expenditures are not of ~n emergency nature.