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10-03-89SpMtg OCTOBER 3, ~989 A Special Meeting of the City Commission of the City of Delray Beach, Florida, was called to order by Mayor Doak S. Campbell in the Commission Chambers at City Hall at 7:00 P.M., Tuesday, October 3, 1989. Roll call showed: Present - Commissioner William Andrews Commissioner Patricia Brainerd Commissioner Mary McCarty Commissioner Jimmy Weatherspoon Mayor Doak S. Campbell Absent - None Also present were - Interim City Manager Malcolm T. Bird and City Attorney Herbert W.A. Thiele. Mayor Campbell called the meeting to order and announced that this meeting has been called for the purpose of (1) Consider request from Carol Carpenter to exempt the Tadpole Lounge from the City's 2:00 A.M. closing time as specified in Section 113.15 of the City Code. 1. Martin Perry, attorney representing Ms. Carpenter on behalf of the Tadpole Lounge, advised this establishment has been located in one of the City's pockets and defined as an Enclave until sometime in late August 1988. At that time the City annexed the property pursuant to a Water Service Agreement which provided for annexation at such time as the City had contiguous boundaries. Several weeks after the annexation they were informed by the Delray Police Department that under City ordinances the closing time is 2:00 A.M. as opposed to 5~00 A.M. which had been consistently applied to this business while it was governed bv Palm Beach County laws. Mr. Perry stated a reprieve was granted which he believes is due to end this evening. He commented that the City's closing hour has some fairly severe and significant economic effect and impact on this business and added that it is his understanding that the business has been fairly innocuous and there have been no problems there. Mr. Perry made reference to a letter dated May 8, 1986, to Ms. Carpenter from Mayor Campbell in which he stated, "Dear Ms. Carpenter, We apologize for the fact that your Tadpole Lounge did not receive our correspondence to pocket properties. It clearly should have, since your property is an Enclave by definition. Again, let me reiterate that the City will not cause an economic hardship to anyone upon annexation into the City. We will work with everyone with special problems like yours to reach an equitable settlement". Mr. Perry stated the letter went on with one further sentence regarding a Mr. Danny O'Brien, a local sur- veyor who had been in attendance at the meeting, and who would give Ms. Carpenter further information, s/s "Doak S. Campbell, Mayor". Mr. Perry advised this same issue arose with respect to the Cymbals Lounge which was annexed into the City along with the rest of the property on Congress Avenue. After some discussion, negotiation and a public hearing, Cymbals was granted a 20 year extension under their 5:00 A.M. closing hours. A distinction has been drawn by the City Attorney that Cymbals is different from the Tadpole circumstance in that Cymbals was an involuntary annexation whereas the Tadpole represents a voluntary annexation by virtue of the Water Service Agreement. Mr. Perry commented that both pieces of property were Enclave parcels and Cymbals was, in fact, receiving water from the City for several years prior to receiving its exemption; he would suggest that if some consid- eration is not granted to the Tadpole Lounge that, in effect, represents a denial of equal protection under the law. Mr. Perry stated he felt some equitable settlement needs to be reached. Ms. McCarty asked how this request was made for the agenda; she has not seen any backup material on this item. The Interim City Manager stated be believed the request was from Cassedy Sumrall, attorney, to the Mayor and himself. Mr. Perry added that the immediacy of the circumstances were that, essentially, they were ordered to close the establishment and there was a period of time which was extended until today to allow them to continue operating with the same hours, with the idea that some resolution or some indication from the Commission would be given as to what their status would be. Upon question, the Interim City Manager advised that he authorized the extension in discussion with the Mayor to make sure we mitigated damages; if we stopped them and then the Commission decided to extend it, we would have .had a period of diminished business for them and it may have become a legal issue. They would only do that through the first time when the Commission would be meeting in session and taken action. Ms. McCarty stated since this was a week ago, she felt the Commission could have been informed as to the details and how this decision was arrived at. Mayor Campbell stated the question is whether or not the Commission is going to be viewing this as an Enclave under the Act and, therefore, when they were soliciting support for the Act they reported to people that they would be treating them specially with regard to hardship, or, is this case not within the purview of the Enclave Act, as was Cymbals, and therefore as a "voluntary annexation" and no precedence as set by Cymbals. The Interim City Manager commented there is one point the Commission should keep in mind in differentiating between the proper- ties. Cymbals is located on a piece of property which was owned at one time by Jack Dorson and Associates. At the time the City was starting its regional sewer plant they went around and solicited from various developers their systems to include in the City system; in exchange for that Mr. Dorson received from the City an authorization to build on his property (at that time the shopping center did not exist) and to receive utilities from the City without the necessity to annex, at the same rate as was paid by the City residents. So that particular piece of property is unique unto itself within the City; they were authorized to be County pockets with City utilities essentially in perpetuity. In other words, there was no incentive for them to voluntarily annex; they didn't need to do it to get utilities and had not agreed to annex in exchange for utilities because of the existence of the agreement between Mr. Dorson and the City. Upon question by Ms. Brainerd, the City Attorney stated that in addition to what the Interim City Manager has said, his understanding was that this Commission felt essentially compelled by the Florida Legislature's Act to provide a difference to enclaves that did not exist with regard to any other annexations; thus, there are at least two factors with regard to the annexation issue. One was an involuntary annexation against their will, arguably, upon which the City had condi- tions attached; this is a voluntary annexation and one is deemed to volunteer to comply with all of the codes when they annex. Secondly, the Enclave Act provisions in and of themselves were interpreted by this Commission to be that they were under a legal obligation to provide an exemption from our Codes, the uses and hours of operation, because the Enclave Act told us that in order to annex these properties involuntar- ily, the City had to make certain accommodations. The City did not question why, all they said was they were authorized under that Act, they chose to exercise their rights under it but had to comply with the technical requirements; thus, the exemption that was placed in the annexing ordinance for that property was done in accordance and in order to fulfill our obligation under the Enclave Act. It is that differenti- ation from the regular regulatory impact of ordinances and the Interim City Manager's distinction, Enclave Act or not, which they feel consti- tutes a rational basis for having made a distinction between those and any other annexation that has taken place before, or which might take place after, the annexation of the Cymbals property. Upon question by Mr. Weatherspoon, the City Attorney advised that they (the Tadpole Lounge) are specifically not a part of the Enclave Act area; they are not a geographic area described in the Enclave Act. Upon further question, the Interim City Manager stated it has not been a notorious problem within the community, other than its hours are different than we require from others. Mr. Weatherspoon asked -2- 10/3/89 what would preclude any other bar in the City from asking the same thing. Mr. Pemry commented that with regard to the Water Service Agreement he felt that was not a voluntary decision; that operation had been there on well and septic tank for many years, the only way they could continue in operation was to sign that agreement and the City was the only one offering the water. To take someone in overnight, place them into economic hardship without at least making some attempt to amortize that loss, places them in a significantly different posture than a bar that has been operating in the City for many years. He stated he felt it certainly does not agree with what they were led to believe in 1986. Ms. McCarty mentioned that she personally knew of a 5:00 A.M. bar on Federal Highway that when the landlord had to get water and annexed into the City (about five years ago) it was closed down. There was no amortization or any question, so she felt the City is being consistent with the situation where someone comes into the City based on a Water Service Agreement. Ms. Brainerd moved for denial of the requested exemption from the 2:00 A.M. closing time for the Tadpole Lounge, seconded by Mr. Weatherspoon. Upon roll call the Commission voted as follows: Mr. Andrews - Yes; Ms. Brainerd - Yes; Ms. McCarty - Yes; Mr. Weatherspoon - Yes; Mayor Campbell - Yes. Said motion passed with a 5 to 0 vote. Before roll call the following discussion was had: Mayor Campbell stated the one thing that impresses him is that when the City does annexing, even though the people had signed something some time ago, it is an ongoing business; the occurrence here, for instance was the automatic triggering by the City annexing the Adult Book Store. It would seem that there should be some sort of equitable adjustment period, during which time someone who really did not have an opportunity to plan their business otherwise might be able to react and plan accordingly, a period of perhaps three or four months. Ms. Brainerd commented that there is notice to people when they are about to be annexed through the public hearing process, ~so there is a minimum of 30 da~s at that point. She and Mr. Weatherspoon concurred that it is sort of a "buyer beware" situation; when a person signs that document he should start paying attention and when the notification of annexation is received, that is the official notice. Mr. Andrews stated he could be persuaded to see some time in this, but he is not persuaded to act in the affirmative to see if there cannot be a transitional time as he is opposed to the methodology of how this item came to be on the agenda. If this had come up in the normal sequence with normal backup material, he does not know what way he would have voted; however, right now he would have to vote against. At this point the roll was called to the motion. ,~ Mayor Campbell declared the meeting adjourned at 7:00 P.M. ATTEST: The undersigned is the City Clerk of the City of Delray Beach and that the information provided herein is the minutes of the meeting -3- 10/3/89 of said City Commission of October 3, 1989, which minutes were formally approved and adopted by the City Commission on ~.~~ ~ ./~ NOTE TO READER: If the minutes that you have received are not completed as indicated above, then this means that these are not the official minutes of City Commission. They will become the official minutes only after they have been reviewed and approved which may involve some amendments, additions, or deletions to the minutes as set forth above. -4- 10/3/89