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CCPC Minutes 03/02/2009 S March 2, 2009 TRANSCRIPT OF THE MEETING OF THE SIGN CODE REVISIONS COLLIER COUNTY PLANNING COMMISSION Naples, Florida March 2, 2009 LET IT BE REMEMBERED, that the Collier County Planning Commission, in and for the County of Collier, having conducted business herein, met on this date at 8:30 a.m. in SPECIAL SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: Chairman: Mark Strain Donna Reed-Caron Karen Homiak Tor Kolflat Paul Midney (Absent) Bob Murray Brad Schiffer (Absent) Robert Vigliotti David J. Wolfley (Absent) ALSO PRESENT: Jeffrey Klatzkow, County Attorney Catherine Fabacher, LDC Manager Joseph Schmitt, CDES Director Page 1 March 2, 2009 CHAIRMAN STRAIN: Good morning. Welcome everyone to the March 2nd meeting of the Collier County Planning Commission. The purpose today is to discuss one item, and that is the rewrite of the sign ordinance. I'm not sure how long we'll be going today. We'll get into discussion of the agenda and figure that out in a little while. In the meantime, if you'll all rise for pledge of allegiance. (Pledge of Allegiance was recited in unison.) CHAIRMAN STRAIN: Okay, will the secretary please do the roll call. COMMISSIONER VIGLIOTTI: Mr. Eastman is not here. Commissioner Kolflat? COMMISSIONER KOLFLAT: Here. COMMISSIONER VIGLIOTTI: Commissioner Schiffer is absent. Commissioner Midney is absent. Commissioner Caron? COMMISSIONER CARON: Here. COMMISSIONER VIGLIOTTI: Chairman Strain? CHAIRMAN STRAIN: Here. COMMISSIONER VIGLIOTTI: Commissioner Vigliotti is here. Commissioner Murray? COMMISSIONER MURRAY: Here. COMMISSIONER VIGLIOTTI: Commissioner Wolfley is absent. And Commissioner Homiak? COMMISSIONER HOMIAK: Here. CHAIRMAN STRAIN: Thank you. Trying to figure out where to start. And I guess the main thrust of to day's meeting will be a presentation from the Doctor, basically eXplaining to us -- or I'm sure -- is it Dr. Mandelker? DR. MANDELKER: That's fine, right. Page 2 March 2, 2009 CHAIRMAN STRAIN: Okay -- about the purpose of to day's changes and the meeting and I guess items of freedom of speech and issues like that. But before we go too far, I'd like to understand what it is we're supposed to be reading. I have a series of drafts. We've had some paperwork passed out to us today, and one of the pieces of paper comes from Dr. Mandelker, and it's dated February 25th. And in his changes he's saying, I have just reviewed the sign code draft submitted to me on February 24th. Well, that's got to be the fifth or sixth draft, I'm not sure which one. So first of all I need to understand whatever document everybody is working from in common so that we're all talking from the same page. And with as many drafts and as disorganized as the drafts have become, I'm concerned we're not all on the same page. So Catherine, what are we reading from today? MS. F ABACHER: Good morning, Commissioners. If you look at the top, on top of the draft, that's just the print date. But if you look and you have -- see documents and settings, you see the file name? Catherine Fabacher, desktop -- CHAIRMAN STRAIN: Well, no, I see documents and settings, Kelly John, my documents, 2-15 sign ordinance, CAF. So which one are -- maybe that's a different one. Okay, this other one says, E, 2-19-09, final copy doc. Well, let's see what this other one says. Revised, Feb. 3-4. This one says, amend the LDC sign code ordinance 2-05-09, clean copy. Let's see what this other one says. We've got to get to the right one. MS. FABACHER: Well, it was the one that I handed out when you were at the RLSA meeting. COMMISSIONER VIGLIOTTI: Doesn't help me. COMMISSIONER KOLFLAT: Mark? CHAIRMAN STRAIN: Yes, sir. Page 3 March 2, 2009 COMMISSIONER KOLFLAT: I received three copies: One was dated February the 5th, one was dated February 16th to 18th, one was dated February 19th, and one was February 26th. That's four copies. COMMISSIONER VIGLIOTTI: Can you put the copy you want us to read from on the visualizer so we could look at it? CHAIRMAN STRAIN: Now, the one you passed out on Thursday -- and Catherine, you need to talk from your seat over there, I can look at my own documentation. The one you passed out on Thursday, we mentioned that because there was no provisions for the public to have an adequate time frame in which to review it before today's meeting, we would work off the one dated 2-19. And the problem I have is it looks like the Doctor's working off of the one dated -- based probably on the one you passed out on Thursday. MS. FABACHER: Yes. CHAIRMAN STRAIN: I'm not sure how that's all going to-- MS. FABACHER: I have extra copies of the one I passed out on Thursday. CHAIRMAN STRAIN: Oh, I know. MS. FABACHER: That's what we're working from. CHAIRMAN STRAIN: No, we are not. On Thursday I told you specifically we would work from the one that was previously passed out to us, the one on 2-19-09, and that we would work -- and as changes came along from the one that was passed out on Thursday, we could then bring them into play. But we had to introduce them at the meeting. We did that for the benefit of the public in regards to what they mayor may not understood what was being discussed today, because there was no time frame or notice under which they could have seen the one you passed out on Thursday. So we're here to serve the public and we're here to make sure the Page 4 March 2, 2009 public sees the most recent documents. And this is not the best way to proceed with an ordinance as wide-sweeping as this one's going to be for Collier County. MS. F ABACHER: Okay, I perhaps misunderstood you last Thursday. But the document that we have is the same thing as was handed out on the 18th and the 19th. The only change is the yellow. And I had thought we were going to go through this, and if we want to skip the yellow, we skip the yellow. But it's the same red and green from the 19th. And this is what we have. There should be no changes except the yellow. And we wanted to include the yellow, because there's some topics that we may speak to and we wanted to have a complete document. CHAIRMAN STRAIN: Well, Catherine, I am very concerned about the public process that led us here today. We will certainly hear the presentation today, and based on what the board gets out of that presentation we mayor may not proceed until this is more organized. What -- for background information, so this board understands how we got here today, were you the only one involved in writing this with the Doctor? Or how was it handled through the -- MS. FABACHER: No, we had a team, a task force. We had Jeff Wright. Diana Compagnone, as you know, is the building reviewer. And then Nancy Gundlach from our office. And I worked on it. And of course Dr. Mandelker worked on it. CHAIRMAN STRAIN: Okay. And then which members of the public, the stakeholders were involved, such as the sign company, their people with that, do you have their names, too? That must have been on that same task force. Because in order to be a complete force with stakeholder involvement and public involvement -- and what meetings did you have in the public advertised so those people could attend and participate? Or were they notified by mail that a meeting or these items were occurring? Page 5 March 2, 2009 MS. F ABACHER: They were given personally, given the books. And it says on the cover when the meetings are. They were given out to four or five sign contractors. CHAIRMAN STRAIN: Do you have minutes of those meetings? MS. FABACHER: No. CHAIRMAN STRAIN: Did they attend meetings? MS. F ABACHER: No, they received it and called us with their responses. CHAIRMAN STRAIN: Called you. They didn't bother e-mailing you or keeping -- we don't have a record of that stuff? MS. FABACHER: No. But let me say that this is a portion ofa settlement from the court. It's not like we're willingly looking for ideas or want to make the signs better for everybody or serve any interest. The whole point is this is part of a legal settlement to do that. To that end, we hired Dr. Mandelker, who is a Constitutional legal scholar, to make us -- to do what we agreed to do to the court as a settlement. It's not like -- it's been on-line, but I don't think the public's going to have much input unless they pretty much know Constitutional law. And it's not like it's up for grabs. It's either we're going to go this way or we're not going to go this way. We're not going to argue about how big the signs can be on a wall, we're not changing locations, we're not changing sizes, we're not changing anything but trying to, if I can go into my presentation, trying to follow just a few of these Constitutional free speech issues. And that's what we've done. CHAIRMAN STRAIN: And normally when we've gone through like the noise ordinance or others, it would be nice if the public was more involved, the meetings were held in a workshop nature with staff so they could have participation, if they wanted to. The manner in which we've gotten this in a short period of time with four or five different drafts is not -- is pretty disturbing. It's not Page 6 March 2, 2009 just not the way we -- an organized way to proceed. But we will proceed today, regardless. MR. SCHMITT: Commissioner, can I -- for the record, Joe Schmitt, Community Development Administrator. If I can give you the history on this and of Catherine. This was at the direction of the board. We went to the Board of County Commissioners after the court case where we were found not in compliance, and there was a settlement. We went to the Board of County Commissioners. The board directed us to amend portions of the sign code that deal with the unconstitutionality of the sign code. This was not a task force, there was no task force organized, there was nothing in regards to a comprehensive review of the sign code. That was not the intent of this amendment. It was strictly to come into compliance with the determination of the legal scholars in regards to the constitutionality. It was a commitment we made to the judge during the settlement agreement, and it was nothing more than that. So I think by your line of questioning, you're asking whether there was some kind of comprehensive review or some kind of committee formed to deal with a comprehensive rewrite of the sign code. That was not the intent of these changes. CHAIRMAN STRAIN: Okay, I -- in looking through the documents in front of us, it seems like it was a pretty much comprehensive rewrite of the entire code. I don't know what the word comprehensive means in your reference, but when I pick up a document and page after page after page is struck through and page after page after page is underlined, it looks like it's a complete rewrite. MR. SCHMITT: Most of that was at the recommendation of our consultant in regards to the constitutionality of the sign code and form and content. And I think it would be best if we give a presentation as to how we got here, why we got here and what the intent of this amendment was. Page 7 March 2, 2009 I know it appears to you that there are many changes, and there certainly were, based on what was deemed I guess the concerns of our consultant in regards to the -- how our codes were written and how they could be determined in regards to free speech. So I think with that, if Catherine could give the introduction and you'll get an understanding of where we're at. But there was a -- CHAIRMAN STRAIN: Well, just a-- MR. SCHMITT: This was at the direction of the Board of County Commissioners. It was a special cycle that was approved by the Board in order to deal specifically with this topic in regards to the settlement of the court case. And I know you have all the background in regards to that. CHAIRMAN STRAIN: Okay, and -- COMMISSIONER KOLFLAT: Joe? CHAIRMAN STRAIN: I don't -- we will get into the introduction. COMMISSIONER KOLFLAT: Joe? CHAIRMAN STRAIN: It's important, though, that we make sure we understand how we got here today -- MR. SCHMITT: Yes. CHAIRMAN STRAIN: -- from the public's involvement perspective. And Commissioner Kolflat? COMMISSIONER KOLFLAT: Joe, could you put this on the overhead for me, please. I'd like to refer this and call it to your attention. I received four copies of this draft. CHAIRMAN STRAIN: It's not coming up on the screen for some reason. MR. SCHMITT: I got it. COMMISSIONER KOLFLAT: Maybe enlarge it a little bit? Page 8 March 2, 2009 I received four copies of this draft ordinance on it. The last one was February 26th, in which it came with a covering memo from Catherine which says, attached please find the final draft for the referenced meeting. This draft differs only slightly from the draft distributed February 19-20. The changes in this draft are all highlighted in yellow for your convenience. Well, I went through that draft. And on the highlighter here you can see I have listed in that draft the various pages on which there were comments. There were three different colors on these comments. The first column shows in yellow where there was a yellow comment on that particular page. For example, the first page I think is 27 there, and you can see the first comment was in red on that page. When you go through that whole draft and you'll see there are yellow comments, there are red comments and there are green comments on there. We were instructed that the yellow comments were the only one who apply. Now, what I have trouble with, Joe, is how in the hell do I know what I'm doing when I study these things and get something like this? CHAIRMAN STRAIN: I think that's the concern that started the questioning this morning, at least on my part. I too went through these and found it a very confusing way to proceed on an ordinance with so many drafts so close to the date. I'm not sure what my colleagues do, but when you get a draft or a document, you read it. And as you read it, you make notes. Well, then you get another draft, you've got to move your notes to the new draft, after you reread the new draft to make sure there's no new changes that the other draft didn't address. And when you get another draft, especially one day before the meeting, one working day, you've got to do that all over again. It is not the best way to proceed with an ordinance as intensive as this. And I think that's the point we're trying to make here today. MR. SCHMITT: Understand. CHAIRMAN STRAIN: So I agree with you, Joe, we will move Page 9 March 2, 2009 forward with the introduction and the presentation by the Doctor. I'm not sure, though, after that where this board may decide to go. It may be necessary to clean up what we've got, understand where we're at and give us some time to come back at another meeting. But we'll see. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: What I'd like to see, if it's possible, is one new draft, do it tomorrow, do it the next day, just one new draft with all of the changes that you've went through rather than us keep making changes to ours. I'd like to see the presentation, and then as I said again, get one new draft, whenever it is, give us time to review it and then come back. I don't know if that works for you. MR. SCHMITT: The draft that was handed out last week to you was the draft that was -- and highlighted in yellow were some of the items that staff added back in to add clarity to the amendments. And that was deemed to be the final draft. It's similar to the one that -- the last one you reviewed, except for the areas highlighted in yellow were areas added back in. And it was at least my understanding as well that you were going to proceed today with your final version, and we would address the areas highlighted in yellow as we went through this. That was my understanding. CHAIRMAN STRAIN: Well, we're going to proceed today with the introduction and the presentation by the Doctor and then just let's see where we decide to go after that. MR. SCHMITT: Okay. CHAIRMAN STRAIN: That might work out the best. MS. F ABACHER: Thank you. All right, good morning. Try again. I think Joe's pretty much explained it. We were sued in the Bonita Media, LLC versus Collier County Code Enforcement and the Board of County Commissioners, based on the fact that portions of our code were deemed to be unconstitutional, based on freedom of speech. Page 10 March 2, 2009 Just funny, because I was showing this to the Doctor last night to look it over and review it and I said, you read it so fast. He said, well, I know the First Amendment. Okay. Anyway, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Signs are speech on the streets. Information conveyed by the signs is free speech and protected by the free speech clause. Because sign ordinances regulate signs and the information they convey, courts must determine whether sign ordinances violate the free speech clause. So that's why we're here, basically, because we violated the free speech clause. A sign ordinance can avoid serious free speech problems when it regulates the location, size and other elements of sign display. Does not contain content-base sign definitions. And I'm sure the Doctor will be able to give you some examples of what that is, but you can't say on a construction sign -- you may only put the name of the developer, you may not put the advertising -- am I right on that, Doctor? DR. MANDELKER: Right. MS. FABACHER: Okay, thank you. And we tell them what you have to have in there and what you have to put on your sign, then we're violating free speech and we are -- by using content. And then the biggest thing is we have to make necessary provisions for noncommercial signs, because each residence has a right to put up a sign to say whatever they want in their yard, basically. And another facet of that is, is that we did the -- well, here they are, the free speech doctrines. Page 11 March 2, 2009 . The substitution clause: That has to do with saying that anyplace that you have a commercial permitted sign, you're allowed to put a noncommercial message on it. The Ladue case was the famous case where -- well, he'd have to explain the case, but that's where it came up that you had to be able to have a sign in your yard to say whatever you want to say, you know. And the political sign falls under that, too, because we can't call it political anymore because it's content based. , So the Overbreadth Doctrine is when something is so vague that anyone has a right to sue because it's -- what would you say, Doctor? You know I have trouble with this one. DR. MANDELKER: Because free speech is chilled. It's restricted by what -- MS. FABACHER: You need to speak in the mic. DR. MANDELKER: Because free speech is restricted by what's in the ordinance, so anybody can sue. MS. FABACHER: Anybody, not just an aggrieved party who wants a sign. Anybody. And that's the problem. I talked about content and speaker neutral. We have a problem with the Conservation Collier signs. When we put those in, we said Conversation Collier. No, we can't do that, that's speaker based. So then we tried to define it as any entity that sets up a conservation easement in perpetuity for the purpose of conservation and allows public use. So the Doctor's still not happy with that one. Prior restraint: Just telling what you can and you can't put on a sign, prior restraint. Substitution clause: This is the one here that's in our book that we're using, and we put it at the head of each section as A. Noncommercial signs are allowed in all districts and may be substituted for any sign expressly allowed under this ordinance. Noncommercial signs are subject to the same permit requirements, Page 12 March 2, 2009 restrictions on size and type, other conditions and specifications as applied to the sign for which they are being substituted. This is where I'm saying you can take your commercial sign and you can put a noncommercial message on it. And the Ladue. This is what we put in for the Ladue, the one that says that everybody has a right to say what they want in their yards, so to speak. So we added this into the residential section and it's single- family residential signs. And it says, one noncommercial ground or wall sign per premises, not to exceed six square feet in area or three feet in height shall be allowed. Now, we had to exclude and make sure, because home occupations cannot put in signage, as you know. So we just wanted to make sure that they knew that they couldn't, you know, do that for their business. And then nothing contained in this section shall be construed to permit the display of signs when otherwise prohibited or restricted by private restrictions or covenants of residential property. We didn't have to put that in, but essentially those covenant restrictions, like in a PUD, say, would override ours. The doctrine holding that if a law is so broadly written it deters free speak. As the Doctor just explained, it puts a chill on it. And it can be struck down on its face because of its chilling effect. Even if it prohibits acts that may legitimately be forbidden. So that's the chilling. And as we said at the bottom, the dangerous part of this doctrine is that any plaintiff may attack any provision in the code. I don't know if I wrote this right, Doctor. I said as personally injured? Is that -- DR. MANDELKER: Right, that's correct. MS. FABACHER: Okay. Meaning they don't have to be the one who's trying to get the sign and getting denied. It could be a sign company that could just come in and say, well, sue us. And they would win if we had that problem. Prior restraint. Government restrictions on speech or publication Page 13 March 2, 2009 before its actual expression. So we can't limit what they're going to put on their signs. It's -- and what the -- the only thing that would pass prior restraint would be adequate standards provided in conformity with this code or other applicable county ordinances. And then a reasonable time limit should be established for the application to be processed. CHAIRMAN STRAIN: Catherine, Mr. Vigliotti has a question. COMMISSIONER VIGLIOTTI: Catherine, will the Doctor go over all these things with us? MS. FABACHER: Yes. I'm just -- COMMISSIONER VIGLIOTTI: Okay. Because I'm having a hard time. MS. FABACHER: With me? COMMISSIONER VIGLIOTTI: Yeah. Following point by point. Because there's like 10 questions I have already, and I don't want to interrupt you on every one. CHAIRMAN STRAIN: Yeah, normally we try to get the speaker to finish before we interrupt with questions, but I'm not -- and if the Doctor's going to take these a frame at a time, maybe like we do, take our ordinance proposals a page at a time, maybe we can walk through it that way and ask questions on each page. It's very hard to remember technical questions of this nature till the end of the introduction. So maybe we'll get through yours, Catherine -- MS. F ABACHER: Just a couple more. CHAIRMAN STRAIN: -- when the Doctor goes back through it, we'll proceed under that-- MS. FABACHER: Absolutely. I'm just -- CHAIRMAN STRAIN: Does that work for the rest of you guys? MS. FABACHER: -- I'm just trying to show -- thank you. Thank you, Commissioner. I'm just trying to show what our task was, more or less. And Page 14 March 2, 2009 that's it. Now, if you want to -- CHAIRMAN STRAIN: Good timing, Bob. MS. FABACHER: I have all these copies that I handed out last week. Extras, if you're confused. MR. KLATZKOW: You're not confused. That's not the right way to put it. Does everybody have the same document? Are we comfortable that we all have the same document to work off of? CHAIRMAN STRAIN: Well, I think there was a mix-up, because last Thursday in discussion when Steve Williams was at the meeting, we had understood, and Steve's decision was based upon the fact that this document that was passed out to us last Thursday had already been posted on the web and that there'd be Thursday, Friday and sometime today in the morning I guess or over the weekend for people to actually access it. I think we've learned since that's not the case. MR. KLATZKOW: If Catherine has a number of documents and they're all the same, at least we're all working off the same one. CHAIRMAN STRAIN : Well, that's where I'm trying to go. Because this one didn't have adequate time to disclose to the public, it was discussed that we would be working off the one we previously had gotten, and then any additions to that and changes as a result of the latest one we would incorporate on the fly at the meeting. That's what we're trying to do. Which means we would be working off the 2-19 document. Now, if that's the case, that does change the way we proceed. Does anybody -- COMMISSIONER MURRAY: I'm working off the 2-26 document. COMMISSIONER KOLFLAT: Mark? CHAIRMAN STRAIN: Go ahead. COMMISSIONER KOLFLAT: I'm working off the 2-26, since Page 15 March 2, 2009 that was the final one given us and the final one we were to review. CHAIRMAN STRAIN: Okay. And Donna, you're working off the same one? COMMISSIONER VIGLIOTTI: So am I. CHAIRMAN STRAIN: Okay. I guess I'm the only one that isn't, so I'll have very few questions today, if any, because all my notes are on the 2-19 one. I had read it thoroughly before the 2-26 was passed out. And to be honest with you, getting something that short and as complicated as this, I couldn't have time to read it again, so -- MS. FABACHER: Okay. Well, we can still, if you want to lead from that one, but -- CHAIRMAN STRAIN: No, we'll lead with the majority. This board is here by the majority call and-- MS. FABACHER: This one has everything. CHAIRMAN STRAIN: I understand. I just -- COMMISSIONER KOLFLAT: Then I have a question, if we're going to follow that document, the 26th. Do we reference just the yellow comments in there or the red comments and green comments and the black underlined and strike-throughs? MS. FABACHER: Everything. MR. KLATZKOW: You've got your expert here today. All right? I understand, Mr. Strain, the concern that this was not published. I share that concern. But your expert is here today. And if you've got a question on something that's been changed since then, he's here now. And I don't know that we're going to get him back. CHAIRMAN STRAIN: Thank you, sir. Okay. MS. FABACHER: Was it your plan just to open it and go line by line? I thought you-- CHAIRMAN STRAIN: Well, it was my understanding there was a -- you had an introduction and the Doctor had a presentation. I'd like to get orientated by the Doctor's presentation, because it may have Page 16 March 2, 2009 bearing on the questions we ask. DR. MANDELKER: You want me to proceed then, sir? CHAIRMAN STRAIN: Yes, sir, that would be best. And if you don't mind, as you get through each general frame on issues, if we have questions you could entertain those questions at that time rather than we hold them to the end. It's a little -- DR. MANDELKER: Absolutely. CHAIRMAN STRAIN: -- harder to do so. DR. MANDELKER: What I would prefer to do, if I may, is to first give a little introductory speech. Because the frames were organized by topic and they aren't always quite related to a general outline, you know, of what things are. Let me say first that we were sued here. And I've been doing this for many years. I've been brought in often after a municipality or county gets sued, but we've usually then been able to work things out. This is the first time I've been brought in after a local government lost a lawsuit. So that's extremely important. That's the first point I want to make. I'm going to make two or three major points. That means that what that judge said is what we have to follow. The legal phrase is, law of the case. We have to follow him. And unfortunately his decision is the most negative, hostile decision I've ever seen on sign codes. He took the most extreme point of view that can be taken on these issues. And, you know, sign law, free speech law is very anamorphous. It's not as clear as it should be. But he took the most extreme point of view that any judge could take. And I'm going to show you some of the things he did. And so when I came in, you mentioned the comprehensive review. The problem was that you start looking at this section and that section and the next section, it's like pulling the bricks out of a house, pretty soon the house starts tumbling down. And that's why it gott Page 17 March 2, 2009 revised as much as it did. Now, in particular, before I get into free speech law to be as clear as I can about it, the problem here, and there's been some national chatter about us on the Internet, is that the ordinance was riddled with exceptions, and that is a very serious problem under the free speech clause. And we've tried to deal with that here. So looking at what the judge said about free speech, there are really basically only two basic issues or doctrines we have to worry about. The first is that the ordinance cannot be content based. And I'll explain that in a moment. The second is that there cannot be any prior restraints. Now, actually, he didn't get to the second one. But, you know, we have to. We have to clean this up. Let's look at what a content-based ordinance is. Content-based ordinance is an ordinance that has provisions that specify what can go on a sign. And I understand here -- that's one part of it. And I understand here that when problems came up with the sign regulation code that the answer was -- you want me to wait till you get back, sir? CHAIRMAN STRAIN: Oh, no, no, I can hear it. I'll be back in a second. Thank you. DR. MANDELKER: Okay. I understand when problems came up with the sign code, the answer was to write something about it, and to write it in a very specific way. And my favorite example which he used was that athletic fields can have signs on fences. Well, that's an example of a content-based sign. There are other provisions in the ordinance that said you can have directory signs or commercial signs that specify the name of the occupants. That's content based. That was typical. There are a whole series of these of various kinds. And they were largely in the definitions, incidentally. Nothing wrong with what Page 18 March 2, 2009 the regulation says. So we've had to go through the definitions, I've done this before, and get those organized. Now, if he had only done that, we would have been -- have an easier job. But he went further and -- you understand, he's a trial court judge. And there's a big appeals court that sits in Atlanta, we call it the 11 th Circuit. You know about that. And they had decided a case called the Solantic case, another city that had an ordinance riddled with exceptions. And he relied heavily on that case. So he said that was a good case, we have to pay attention to that case. Now, that case introduced another idea, which is that if an ordinance is speaker-based, that's also content-based. Not to do with the content, it just means that you give a certain kind of sign to a particular use. And my -- you know, athletic field use is a good example. Athletic fields can have signs on fences. Now, you might ask, well, you always have to regulate uses. But you have to, I think to meet that objection, get away from regulating giving particular signs to particular uses and talk about land uses, categories of land uses, residential uses, nonresidential uses. But those are the two major -- the two major problems that come under content regulation. Now, the big one for us in that area and for everybody is the political sign problem. Because you can't regulate political signs without regulating content. What do you say? How do you define a political sign? A sign posted by someone running for an election or by a candidate for election, well, that's content. That's the person who can put it up. So the big problem that comes up with content-based issues is the political sign issue. And other types of commercial signs such as real estate signs. You can't define a real estate sign as a sign advertising real estate. That's content. Now, we worked around these things; we can go into that later. And that's where the house started tumbling down. You know, that's why it's so -- so because of that decision, we could look at other Page 19 March 2, 2009 decisions a little different, but we can't. We have to look at what this judge said. He's sitting there. Everybody's watching us. And we have to deal with regulations that spell out what the sign can say and who can say it. And your code -- and I won't say it's any better or worse than any other code, but I've seen others which is just full of these content-based, these speaker-based regulations that we had to deal with. And that was the major issue. And my memo, when we finished with it all, I looked back at it again, I said uh-oh. I read the Solantic case again. And then on this very issue a case came out in the New Jersey Supreme Court -- that's a very important court in this country for land use issues -- on these same issues, and they struck down aNew Jersey municipality. There was buzz all over the Internet. So that was the main issue there. Now, there's another issue here that I didn't -- that we have to be concerned about, and that is the question of making distinctions between different types of signs. That's another issue. Content based is one, distinctions is another. The major distinction that you can't make is you can't -- we can't treat commercial speech better than noncommercial speech. We have to allow -- give noncommercial signs the same treatment we give commercial signs. And there's a famous case up where I live in our court, the Whitten case, where they regulated political signs, and then they gave political signs much more restrictive regulations. And boy, they just got thrown out the window. So we've attempted to deal with that problem. The substitution clause that Catherine mentioned has been approved by many courts. The language I would like to tinker with a little bit more. You know, we've worked on it six months. They've done an incredible job. I can't imagine -- it's been -- getting this far Page 20 March 2, 2009 usually takes a year, at least, with a much smaller community. So we're still, you know, tinkering and wordsmithing with this. So the substitution clause says you always have a noncommercial message anywhere. So I dealt with that problem of fairness. Now, another fairness problem that has come up. You see, when cases get decided elsewhere and the city loses -- I wouldn't be as concerned if we hadn't lost the case. But we got hit once, and I don't want to do anything that is going to expose us to unnecessary risk. So when another court comes out and throws something out or adopts an idea, I listen to it. There's some concern that we shouldn't even treat commercial signs differently. I don't want to go to the -- so we have to be very careful about how many signs we have and how we treat them. One of the issues here is that there is a format. There are certain types of signs that get treated in a sign ordinance. And let me just say, you know, I've viewed photos of signs here, I've driven around here. And this is beautiful; I mean, the staff has done an exceptional job in sign regulation, I think. Freestanding lettering and good graphics that just are beyond belief. But we don't want to do anything that hampers that. But I think that in dealing with these regulations we have to ensure that -- fairness, that all signs are created the same way. And we have to avoid putting in too many different types of signs. I'm just going to tell you, you know, I've been at this a long time and read this. I'm just going to tell you that based on what happened to us, if we start -- we want to -- that was one of the reasons it's so comprehensively redone. I want to cut the number of signs down to the absolute minimum. If we put in too many different types of signs, I hear the bells go off and I'm saying the judge is going to say you're still making these distinctions. So fairness, content issue. Now, a prior -- the prior restraint issue is one he didn't get to, but -- and it's not difficult to deal with. It's a little tricky in a couple of Page 21 March 2, 2009 places. What this means is that if you -- if the sign ordinance spells everything out, that's not a problem. But once you have any kind of discretion, and the ordinance was full of these things, it said, well, the setback is this way unless the county manager or its designee says you can have -- oh. I mean, and it's full of these things. And I just went through penciling these things out. In particular, we've eliminated conditional uses for signs. And the reason is that if you have any kind of discretion, you have to meet certain requirements about -- I'll explain them in a minute. Well, the point is the judge may not understand, you know, what we're doing with this kind of sign or that kind of sign. But lawyers and judges, they darn well understand, you know, procedures. They understand standards. And if it is -- and they just knock them down right and left when they're not right. So I recommended we did -- we have no conditional uses. We'd have -- there isn't any discretion left in here. A couple places where there are, I noted in here. We don't want any discretion in here. You see, you might ask, well, a setback on a landscaping, who's going to complain? But the problem is if I'm a billboard company and I come in and I'm denied my billboard permit, I can take aim at anything in the ordinance. Now, this judge allowed Bonita to do that. Now, there's some cases up in our Atlanta court that say maybe he shouldn't, but he did. And we're dealing with him. Anybody can come in, any billboard company, Bonita can come back and take aim at us again at anything. You might say who's going to complain about a model home sign? Well, what happens is that any plaintiff could come in and take aim at these things and then the whole . ordinance can collapse again. So to me prior restraint problems, I think the only place really where it's left in the sign code is with the variance provision. I believe Page 22 March 2, 2009 we're working on some -- you have to have two things: You have to have very definite standards. The reason you have to have definite standards is that if the standards are vague, the county board and you guys can hold them up forever. You know, that's what they mean by chilling free speech. I've got to corne in, say, and get a variance. And you've got a very vague standard. You say oh, well, we don't think so. Well, you know, it's too open. The other requirement is a very short time period for decisions, for obvious reasons. And how long does it have to be? Well, again, I applied this on the safe side all along in terms of risk-taking. And my recommendations have been as conservative as I can make them. And I read there's a case in our Atlanta court, they said 60 days, so I said 60 days. I'd rather make it 30 days, but I said 60 days. So those are the problems. Content-based, commercial, noncommercial, fairness and distinctions, and the question of prior restraint. I'm going to talk about those two things in a moment. We'll talk about that later. Now, let me just say that there isn't any guarantee here on anything. I mean, we could sit here and be as conservative as we wanted to, and as one of my colleagues who teaches constitutional law said, that any judge in this country can throw out any sign ordinance if he or she wants to. But I think if we go ahead and take a conservative position and kind of button this up in the way I think it ought to be, I think we ought to be okay. And we don't want, you know, another lawsuit. Furthermore, you know, I have targeted some sections in here that I think either need to be deleted or changed. I think we can modify some of them. But if you left in some provisions that I thought were unconstitutional, you might never get sued. I mean, there isn't any guarantee anybody's going to sue you either. Page 23 March 2, 2009 Now, in this situation where it's -- you know, blood's been drawn once, you know, it's -- anyway, that could happen again, obviously. So that's -- I don't think we need to go through the frames particularly. I think I've covered all the -- the one other kind of thing that's hanging out here, this Ladue case issue, which is a marginal thing, Ladue is a suburb right next to me; I can see it from my window almost. And one of our former students put a sign in her window that said Stop the Gulf War. And Ladue had an ordinance which disallowed that. And it was handled by my son's neighbor, and he and I worked on it a lot. And he really just took it up to try to get the court to revisit some of these issues. And they lost, which they should have. But the bottom line is that in residential areas you have to allow a permanent sign that's a noncommercial sign of some kind. And that's what we're doing there. I'd like to put that aside. That's important, we need to do it or they'll chase us on that, but that's what the Ladue sign -- what we call the Ladue sign is all about. And we've just allowed one noncommercial sign, six square feet, that's what we usually do in these ordinances, and we've never had any trouble with it. But these other issues, content-based, speaker-based, fair treatment of noncommercial signs, and no discretion. The variance is all we've gotten. We got a problem with planned unit developments, we're working on a little, but that's outside the sign ordinance. No discretion, no conditional uses, no provisions that say the county manager and his designee can do this and that, nothing like that. And so when all these things started corning out, that's when you saw this massive really changes that occurred. So I wanted to take questions. We can talk, you know, as long as you we want. CHAIRMAN STRAIN: First the County Attorney, then we'll go to the panel. MR. KLATZKOW: And just understand, whatever sign Page 24 March 2, 2009 ordinance we pass today down the road will be ruled unconstitutional, because it changes. The original ordinance we had was based on a model ordinance that the courts were upholding. In this area of the law, the chan -- judges look at things differently and different courts look at them differently and changes over time. If you go to the First Amendment it says, Congress shall make no law with respect to freedom of speech. Well, a sign ordinance by itself is a law. So we've already thrown the books out the window, so to speak. So it's a question of how much tension are they going to allow, and that's in evolution. So whatever you do today, understand that eventually this sign ordinance is going to have to be changed again. It just moves. It's not like the law in real property or wills, which stay the same for centuries. This is a moving target. The second thing is this: There's a lot of policy involved here, because the sign ordinance has a lot to do with the character of our community, right? I'm willing to take a risk, you know, on certain areas that might be questionable if it leads to a more aesthetic community that the people want. So that one of the things here is almost like the risk analysis, and I'm glad we had the expert here to say okay, for example, we can allow billboards in Collier County and never have to worry about being sued by a billboard company, or we can expressly prohibit billboards, okay? And we're going to run a risk that sooner or later Lamar or somebody else is going to bring a suit on that, all right? Well, if you don't want billboards, you have to prohibit them. There are ways we can play with it, but -- neon signs, you know, whatever you don't want in the community we're going to need to prohibit, but we need to do it in such a way that it will withstand legal challenge, hopefully, but it's risk analysis. And that's why we have the expert here. Just talk policy with him. I mean, if we were going to dictate to you what the land code Page 25 March 2, 2009 should be to get rid of any issue with respect to constitutionality, you wouldn't be here, we would just have done it. CHAIRMAN STRAIN: Thank you. Okay, we'll start with questions of the Doctor's discussion here. Catherine? MS. FABACHER: I'm sorry, how rude. I forgot to introduce Dr. Daniel Mandelker. He the Stamper Professor at Law at Washington University in St. Louis, and it's been my great pleasure to meet him and work with him. +++ CHAIRMAN STRAIN: Thank you. MS. FABACHER: So sorry I was late with that. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Doctor, which judge and case are we working by? Where was the judge, local? DR. MANDELKER: Where does he sit? CHAIRMAN STRAIN: What was his name? Do you know his name? DR. MANDELKER: I've forgotten his name. COMMISSIONER VIGLIOTTI: What was it, circuit, local? DR. MANDELKER: It was a local district court judge. MR. KLATZKOW: Fort Myers. COMMISSIONER VIGLIOTTI: Okay. DR. MANDELKER: He sat in Fort Myers, yeah. You see, what -- this is how this works here. We're in the -- and this is important to understand. Because the country is divided into 11 what they call circuits, courts of appeal, plus the District of Columbia. We're in what's called the 11 th Circuit. It was a new one that was created, and it includes all these southern states. And it sits in Atlanta, though it moves around. Now, within the 11th Circuit there are districts. Florida has, you know, a middle district, southern district. There are I think three districts in Florida. And within these districts are the district court Page 26 March 2, 2009 judges. These are like the trial court judges. He's a trial court judge. He hears the case. He's a trial court judge. Now, the county, if they had wanted to, could have appealed his decision to this 11 th Circuit and gotten another opinion from the appeals court. But they didn't. So that's the situation. Now -- but he's working within this whole group of decisions that this Atlanta 11 th Circuit Court has handed down. Now, it so happens -- I've done a fair amount of work in Florida up and down the state different places, Hillsborough, different places, Melbourne and so on. It just so happens that perhaps because it's Florida, which is concerned about it, the 11 th Circuit has gotten more of these sign cases than almost any other. I mean, and when we sit here, those are the ones we have to be concerned about. They've gone up and down the street with them. But when the circuit sits there with 13 or some judges, they sit in groups of threes. Well, it's all panels. They don't always agree. So this district judge sits down here and he can pick and choose from what they've done, you see what I'm saying? And he picked the most restrictive, awful -- I mean, in terms of the most restrictive case of the bunch, Solantic. And he said that's what I'm going to follow, which he's entitled to do. And the New Jersey court did the same thing. I would say in terms of what the attorney just said, he's absolutely right of this changing vision. And I would say that the -- to the extent that I can see it, there's been a tightening of concern when municipalities start making all these distinctions. There's been a tightening of concern. That's what happened up in the New Jersey case where they tried to prohibit a sign looking like a rat. And they said you can't prohibit that and allow other things. So anyway, that's the story. He was the district court judge, a trial court judge sitting here, bound to follow these 11 th Circuit cases, and he picks the Solantic one. So he's the guy -- but we didn't appeal Page 27 March 2, 2009 him, so what he said -- COMMISSIONER MURRAY: Stands. DR. MANDELKER: -- about our ordinance -- there are other things I didn't mention, like prohibitions and exemptions and so on. But that's just part of the content based. So that's the answer. COMMISSIONER VIGLIOTTI: One more question. Homeowner associations have condo docs or condo associations. Do they supersede? DR. MANDELKER: They would I think ordinarily, that's my understanding, yeah. COMMISSIONER VIGLIOTTI: Thank you. CHAIRMAN STRAIN: Any other questions? Mr. Kolf1at? COMMISSIONER KOLFLAT: Yes, Doctor, I enjoyed your presentation very much. It was very informative. One thing that has bothered me about signs is the readability of the sign. For example, an off-premise sign, if it's located on a very speedy highway or a highway with a high speed limit, that the motorist does not always have the opportunity to recognize or read that sign until they're past the point of entry that is designating where the off-premise location is. Is there anything that would restrict us in the sign code that would say that a readability analysis must be made to establish what is necessary as far as the size of the lettering on a sign? DR. MANDELKER: Well, we -- no, this isn't part of our mandate here, to deal with that question. But 30 years ago I participated in a project that dealt with that very question. And we dealt with it in terms of the size of the sign, how big does the sign have to be to make it visible from the right-of-way, from the highway. And we conducted studies that looked at that. And we published a book called Street Graphics. And a few Page 28 March 2, 2009 years ago I rewrote that as a monograph of American Planning Association called Street Graphics and the Law, and went to the United States Sign Council, which is the research organization for the sign industry. They have done very detailed studies on just what you're talking about. And I don't think we can demand a certain size of letter. That would be difficult. But we cancer -- it's certainly possible to control or deal with the size and spacing and height and so on. But --. and that's all in this book that I published. But that in itself is a big issue, and it's not something I think we should get involved in here. We've got enough to do, I think, without getting into that. But it's been dealt with by the Sign Council and they dealt with the roadside signs, they now have a publication on wall signs, so that some day when you want to get to that issue, it's all there for you to look at and deal with. COMMISSIONER KOLFLA T: So if in the future sometime the staff was going to revise this ordinance as far as signs, they could reference that -- DR. MANDELKER: Sure. COMMISSIONER KOLFLAT: -- and explore that possibility. DR. MANDELKER: Sure. COMMISSIONER KOLFLAT: When you mentioned size of sign, one thing that's also disturbed me is what really defines the size of a sign? We see some signs where the lettering completely covers the sign, others where there's a big structure surrounding the copy on the sign, so the message is a rather minor part of the sign, but yet the specification calls for a certain physical size in inches or feet. DR. MANDELKER: Well, I think that's up to the -- again, that's not part of our work here. But that's up to the county. You can define the size of the sign with reference to the lettering any way you want to. We usually define it as a geographic square or rectangle or Page 29 March 2, 2009 whatever, drawn around the lettering. But defining the size of the sign in reference to lettering is something that's entirely up to the county, it's not a free speech issue. Again, it's not something that we've been asked to do. We prefer -- I have to tell you that we go into counties and cities and try to get them to do free lettering on walls and not put them on a board of any kind. Because we think that free lettering is much more attractive. And you've been able to do that here. You know, free lettering and graphic well done -- good graphics, that's been done. But the issues you raise are interesting and important issues, but they're not this issue that we're dealing with. It's not the free speech Issue. COMMISSIONER KOLFLAT: Well, I appreciate your comments very much. Thank you. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yes. Doctor, in your comments you said that communities, even smaller than Collier County, have taken well over a year to corne up with the correct language and to make sure that their code is as conservative as possible and that we've only been at it here for six months, maybe. Are you comfortable that we should be going forward at this point, or should we take that time and really make sure? I mean, remember, we are the ones who have gotten sued and decided not to appeal, so like you said, that puts us in a different position. DR. MANDELKER: Well, let me say this: I think we have worked through the majority of the issues. There are some issues here that I've raised that I'll have to say where staff and I still have to work out some agreement. And I may have to say, you know, well, this is my opInIon. And I really think we should not rush the process. I don't know that we need another six months, but there are some unsettled issues in here that are still a little troublesome, and I think we need more time. Page 30 March 2, 2009 And how much time we need isn't clear, but I think we do need a few more months, at least. COMMISSIONER CARON: Thank you. CHAIRMAN STRAIN: Any other questions before-- Catherine? MS. FABACHER: I just wanted to say that -- I just drew a blank. No, the reason that we're here is because the Doctor's position and staffs position and we're not in -- you know, you need to weigh the risk and you need to say well, we want to go all the way and be totally bulletproof with the Doctor or we're going to agree with staff on this one. But that's why we're here, we need the direction at this point. DR. MANDELKER: There's just -- I would say, Catherine, that the areas where we need some direction is a very small percentage of the whole. But they are important issues. I think that's certainly an Issue. But I think in addition, the general -- the decisions we've made need to be looked at as well. I mean, for example, as I said, at my recommendation every provision in here that required discretion was taken out. Conditional uses were taken out, all the definitions that were problematic were rewritten to make them content free, and the prohibition and exemption sections were pretty much stripped. I mean, there's nothing left there anymore, because I felt most of those were troublesome. In this monograph that I mentioned in response to the other question that contains a model ordinance and it has very few of these exemptions and prohibitions, one of which, by the way, that I recommended was held unconstitutional by your judge in this case. I wouldn't have thought so, but he thought so. And it's one that is still in there that I think ought to go. In any event, I think there are these major decisions we've made about the ordinance to radically reduce the number of signs that are Page 31 March 2, 2009 allowed, radically change the definitions, remove all discretion, except for variances, which we have substantially tightened up. I mean, I don't see any reason why variances are needed if the ordinance is done correctly. So those are -- and other issues, time issues on permits and -- I've insisted on time issues on variances, so it's not entirely clear that you need those on an appeal -- on a decision like that. I think it would be important. Those were the major decisions we made: This radical reduction in the number of signs, the revision of the definitions, the elimination of all discretion, the elimination of conditional uses. And where I'm still having problems is that with some minor things in here, I see some speaker-based provisions in here that I think are unconstitutional that ought to go and just take -- I want to take more of these special sign provisions out so that we're left with a really trim ordinance. We have wall signs, ground signs, pole signs, a couple of commercial signs, and that's it. That's what I want to see. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Do we end up, a"fter all this is said and done, with a whole new series of nonconforming signs as a result? What are the implications for -- I mean, going forward, that's understandable. But what about all of those signs that are extant? DR. MANDELKER: Well, I -- Catherine's going to help me with this. That is an important issue that we have been concerned about. Let me just say that we have done some work on the nonconforming use provision, though it's not strictly a free speech problem. Because what we did on other parts of the ordinance is perhaps creating new conformities. I think that so far as I can tell, the changes we made simply say -- for example, take a real estate sign. A real estate sign is now defined as a sign on premises offered for sale, lease or exchange. That's totally Page 32 March 2, 2009 neutral. So that nothing is made nonconforming there. And I don't think we changed any of the regulations that apply to real estate signs. There's one type of sign, we allow a directory sign for multi-use premise. I don't know, Catherine, you can explain whether we've-- that's going to create nonconformities or not. The ordinance as it was written was content-based, because it said you can say this, you can say that, say the next thing. So we had to change that. I don't know if we made changes. I don't know if I've said this before, but if so, let me repeat it. There's a certain format to these ordinances, there's certain types that are commonly found in ordinances. I want to stick to that. And once you got (sic) to provisions that are uncommon, that's when, you know, the trouble starts. Directory signs are common. And as I said, did we make -- create nonconformities, Catherine? MS. FABACHER: I'm just checking back with Diana. I didn't think we did for sure, because we didn't change heights or sizes or anything like that, or the number of signs, so we should not have created any nonconformities. COMMISSIONER MURRAY: I guess my question was based on the Doctor's statement that we've gotten rid of a number of signs and changed -- MS. FABACHER: Well, yeah, they're still required. They're just called something now or -- DR. MANDELKER: They're called something different. MS. FABACHER: They're called something different. And that's kind of why we're here today, to get you to help us on that. COMMISSIONER MURRAY: So the question is whether they're adequately called something different. DR. MANDELKER: Yeah, yeah. MS. FABACHER: Yes, it's free speech. We're not creating any nonconforming signs from this. COMMISSIONERMURRA Y: Okay. Page 33 March 2, 2009 CHAIRMAN STRAIN: Mr. Klatzkow? MR. KLATZKOW: Yeah, the direction from the Board of County Commissioners was to bring back an ordinance that reflected the judge's decision, it wasn't to change the signs in Collier County. So my recommendation would be that if this ordinance should happen to create a nonconformity, that we grandfather everything in and be done with it. Because it's not the intent of the Board of County Commissioners that certain signs be banned now. CHAIRMAN STRAIN: Thank you. Mr. Kolflat? COMMISSIONER KOLFLAT: But did I understand that by reduction of the number of signs that the ordinance would contain would reduce the possibility of challenge? DR. MANDELKER: Yes. COMMISSIONER KOLFLAT: So that should be an overall goal in our mind as we review this. DR. MANDELKER: Yes. I really would like the number of signs allowed cut way down so we have wall signs, ground signs, pole signs, directory signs, a couple of real estate signs, construction signs. And something else we've done, it still needs work, but we've created a new temporary sign category. Now, there were some provisions in there, here or elsewhere, authorizing signs for bingo, you know, and so on. Obviously that's content based. So what we've done here, as we've done elsewhere, is to create a new category of signs called temporary signs, which are signs related to an event. That could be an election, that could be anything, you know. They're noncommercial. They're related to an event. We've done that many places. Of course a couple of courts have upheld them. And so -- and that's not been a problem. Now, let me just mention -- so that's the group. Now, let me mention two other signs that are in here, two other restrictions. What about the -- this mobile sign on the trucks that these fellows were Page 34 March 2, 2009 doing? Well, fortunately we have a case in the 11 th Circuit from Atlanta over in Super Signs of Boca Raton, which authorizes the restriction of mobile signs. And there's a case just carne out in the California court. The California courts are looked to as well. Obviously being California, they get these things. The California court upheld a restriction on mobile signs, so we said okay , great -- they said that was great, we'll do the same thing, we'll point to the California case, so we've done that. And then this other question carne up, this problem of hand-held signs. And I have to tell you, a case carne out -- let me just stop for a second. We've already got quite a large number of signs already. A case carne out of the Ninth Circuit up in Washington, Oregon and California, that's another powerful circuit, those states are important. City of Seattle had prohibited hand-held signs. And this is just an example, it's sort of a case study of what these problems are like, in addition to this problem. They said you can't prohibit hand-held signs. They said what's the difference between a hand-held sign and a real estate sign? It's no different from anything else, why are you prohibiting these signs, and they threw it out. So my reaction is, we're not going to prohibit hand-held signs. I frankly would like to leave them alone. As I told you, I'm nervous about too many sign restrictions. I'd like not to do anything. There's something in here, but -- What I recommended was okay, we can regulate the size and the height. And maybe the number on the premises, I forget. I don't think we'd have any problem with that. COMMISSIONER KOLFLAT: Just another aside on that, what do you classify as sandwich sign board? Is that a mobile sign? DR. MANDELKER: What do we do with -- MS. FABACHER: We call that moveable. COMMISSIONER KOLFLAT: Moveable. DR. MANDELKER: Yeah, it's a moveable sign, yeah. Page 35 March 2, 2009 COMMISSIONER KOLFLAT: That differs from a hand-held? MS. FABACHER: Different from a hand-held. And then the other one is the portable signs. DR. MANDELKER: Yeah. MS. F ABACHER: And then we wrote a fourth one for the trucks with the signs. DR. MANDELKER: Right. MS. F ABACHER: Or vehicles with signs. DR. MANDELKER: The vehicles with signs, yeah. But what did we do with the sandwich boards? We prohibit those, don't we? MS. F ABACHER: No, no, we allow them. DR. MANDELKER: We allow them? MS. FABACHER: Because we had to cut a lot of the sign regulations that were not constitutional out of some of the overlays, as you know. They had their own. And temporarily, because we didn't have the money or the time to work on all of those, we've just referred them back to this 50600 to be safe. If they want to corne back in the future and recreate them -- but we did (sic) allow sandwich signs in the main code now, which we didn't before. Because so many of the developments wanted those little signs. DR. MANDELKER: That's okay. I don't think we have a problem with that. COMMISSIONER KOLFLAT: With the economy going as it is, we all might want to use some of those sandwich board signs. DR. MANDELKER: But the problem I have with the hand-held sign is I have a problem limiting how many days during the year they can be displayed. Because they're going to say -- I can hear a judge saying well, what's the difference between the hand-held sign and a sandwich board sign? You don't have to have a limit there. Anyway, that's just an example, but I think we -- of what the Page 36 March 2, 2009 problems are. But you can see, this is the range of signs we have. There are a few others in here that I don't know if you want me to get to -- do you want me to get to some of the signs there? Some other -- CHAIRMAN STRAIN: We're not done with questions yet, so let's finish up with the questions of the introduction before we get into the specifics of the code. Mr. Kolflat, are you finished? COMMISSIONER KOLFLA T: Yes. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: How about these large balloons with the store name on it or balloons, if they put names on it, is that considered a sign or a distraction? DR. MANDELKER: Do we allow balloons? COMMISSIONER MURRAY: Yes, you do.. COMMISSIONER VIGLIOTTI: We don't allow balloons. MS. FABACHER: I'm going to defer to Diana. She carne in. She's sick, so don't get close to her. Diana Compagnone, she's our sign expert here at the county. Worked very hard on this. Lot of time on it. COMMISSIONER VIGLIOTTI: Thank you, Diana. MS. COMPAGNONE: Thank you. Right now it is under prohibited signs under wind signs. Any of the balloons we consider flutter flags that have the name of companies, that's a wind sign also. COMMISSIONER VIGLIOTTI: Can we keep them prohibited? DR. MANDELKER: Sure, sure, that's not a problem. MR. KLATZKOW: In this ordinance are they still prohibited? DR. MANDELKER: Yeah. MS. COMPAGNONE: The way we did one of the prohibiting portions of it is that any sign that was not expressly addressed in the ordinance was prohibited. So we didn't mention that it was allowed in Page 37 March 2, 2009 the ordinance, so they couldn't have it. DR. MANDELKER: In other words, we didn't touch most of these, you know, regulatory provisions, but they're already -- they're pretty much the way they are. COMMISSIONER VIGLIOTTI: Thank you. CHAIRMAN STRAIN: Any other questions on the introduction phase? Mr. Kolflat? COMMISSIONER KOLFLAT: Is a banner sign included in that category? MS. COMP AGNONE: The banner would be under the temporary signs. They actually need a temporary use permit for a banner. COMMISSIONER KOLFLAT: But it's not prohibited? MS. COMPAGNONE: No. COMMISSIONER KOLFLAT: Thank you. CHAIRMAN STRAIN: Anything else? DR. MANDELKER: What we did with the temporary signs, since you raised this, there was a whole series of content-based provisions in there. Corning soon signs, you know, Joe's Hamburger Corning Soon, grand opening signs, corning soon signs. Those were all -- I can't remember all of them. They're all struck. And we just have this one temporary sign provision. That covers all temporary SIgns. And that -- and so it's still there. I mean, the temporary signs are temporary. You have to get a permit anyway. There's no nonconformity. So any temporary sign of any kind is covered by this provision. So this is what I meant by pulling down the house, so that there isn't any unfairness, you know. Every temporary sign is treated the same way, political~ nonpolitical, it's all created the same way. It all comes in under that. CHAIRMAN STRAIN: Okay, Doctor, I've got a few questions. Just so I can give you a heads-up on the way we do things, at Page 38 March 2, 2009 10:00 we'll be taking a IS-minute break for the court reporter, and then we'll decide when we get back from that how we want to proceed with lunch and the rest of the day. I've got quite a few questions. The first one is the -- is there any priority of freedom of speech within signage? DR. MANDELKER: Yes. CHAIRMAN STRAIN: Could you kind of tell us what that is about. DR. MANDELKER: The priority is that noncommercial speech receives more protection than commercial speech does. And that means that regulations that discriminate against noncommercial speech, if it's found to be discrimination, are unconstitutional. So that's the priority. Noncommercial speech receives more protection than commercial speech does. Now, what do we mean by noncommercial speech? We mean political signs, we mean ideological signs, Save the Whale, Save the Manatee, so on, that's what we mean. That's the priority. Now, the interesting question is -- and that's the problem. Now, within the commercial speech category it's generally been accepted that most distinctions are acceptable. But there's a couple of -- there was a Supreme Court case and a couple of other cases suggesting that you can't make invidious discriminations. But in any event, noncommercial speech -- noncommercial speech has the priority. Now, it's not quite a priority, but in terms of judicial acceptance, if a regulation is content based, it's presumed unconstitutional and you have to have a compelling governmental interest to regulate it. Well, no court ever finds a compelling governmental interest. It's just a code word that means no. So that's the priority there. If it's -- however, if the ordinance is content free, if it's content neutral, like some of those I've given you examples of, then you have a much less rigorous test that comes from -- and it was up there, from the so-called central Hudson case. It has to Page 39 March 2, 2009 serve a substantial governmental interest and it has to be as narrowly drawn as possible. Now, that's still a problem. But none of the -- all of the signs we've been dealing with here are on-premise signs and it doesn't present that problem. So those are the priorities. Noncommercial speech gets a much better treatment than commercial speech does. Content-based speech is treated more sternly than content-free. CHAIRMAN STRAIN: In Collier County we have a process, and I know there's different types of political signs, there's some that address issues and there's others that people usually think of when they talk about political signs, and that's the ones that go up when the candidates are having their every four-year event. We regulate when those signs can go up and we regulate when they've got to corne down. Is that something that is still allowable? DR. MANDELKER: It's possible to regulate when they corne down, it's not possible to regulate when they go up. CHAIRMAN STRAIN: Okay, that means they could go up four years in advance of the next election and really you never take it down then. DR. MANDELKER: Well, that's my -- that's right. We just have to, you know, hope that doesn't happen. But you can't limit how close to an election it has to be. We can make them take -- they can corne down after a certain period of time, but regulating it in advance isn't possible anymore. It's the same idea of chilling, you know, expression. CHAIRMAN STRAIN: We also regulate in this area in particular because of the high winds we have during the summer when a potential hurricane could corne through. When a hurricane warning goes up, all the political signs have to corne down. But we limit it to political signs. Is that a fair way to proceed under what is considered a health, safety and welfare aspect for political signs only? DR. MANDELKER: We can't have any regulation that applies Page 40 March 2, 2009 only to political signs, because it's impossible to define political signs without defining content. CHAIRMAN STRAIN: So once they go up, even if a hurricane's pending, we can't make them take theirs down unless all other similar signs to theirs -- DR. MANDELKER: That's right. CHAIRMAN STRAIN: -- have to be taken down at the same time. DR. MANDELKER: That's right. CHAIRMAN STRAIN: Okay, Ms. Caron? COMMISSIONER CARON: Would that not now fall under temporary signs, and could we not regulate that all temporary signs must corne down? DR. MANDELKER: Sure. COMMISSIONER CARON: And political signs will fall under temporary signage, correct? DR. MANDELKER: Sure, absolutely. COMMISSIONER CARON: So we can -- CHAIRMAN STRAIN: There's ways to do it, but I want to -- that's what I want to understand, what we've got to do to get to our goal, and the only way to understand it is where the goal isn't, ifit's left like it is. Go ahead, Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Can we do it in such a way that all -- not all -- such a type of construction signs have to corne down? Can we specify the type of construction of the sign that would have to corne down? MR. KLATZKOW: The issue is -- DR. MANDELKER: Type of structure. MR. KLATZKOW: The issue is you have signs, you have building permits that are, you know, well placed in the ground, and those are fine for the hurricane season. The problem is the political Page 41 March 2, 2009 signs or any signs you -- real estate signs you're just throwing down. COMMISSIONER VIGLIOTTI: Yeah, realtor sign -- MR. KLATZKOW: But they're all the same as far as structural goes. So from a temporary standpoint, these are all the temporary signs. You know, they all corne down, you know, during certain seasons or, you know, if there's a hurricane corning, everybody's got to take it down. COMMISSIONER VIGLIOTTI: All right. So if it was non-permitted as a permanent-- MR. KLATZKOW: That's one approach. I mean, you know, my way to approach it, if it's firmly stuck in the ground, you don't worry about it. And if it's just something with a stake in the ground, you do. COMMISSIONER VIGLIOTTI: Well, some of the commercial real estate signs are four-by-four posts with a four-by-four -- four-foot by four-foot piece of plywood. Now, that's not -- that should be taken down in a hurricane. Where would that fall? MR. KLATZKOW: I don't know that we take those -- I mean, Joe could answer that question. We don't require them to take down those signs, do we, Joe? CHAIRMAN STRAIN: No, I think what we might want to look at is that if signs have a building permit, that would mean they're there to withstand the wind loads and everything else. DR. MANDELKER: Right. CHAIRMAN STRAIN: So anything that has not got a building permit -- MR. KLATZKOW: Is a temporary. CHAIRMAN STRAIN: -- may have to be applied as corning out of the ground in case there's a hurricane. MR. KLATZKOW: Yeah, you might have two signs, signs with permits -- CHAIRMAN STRAIN: And signs without. MR. KLATZKOW: -- and then everything else is temporary. Page 42 March 2, 2009 CHAIRMAN STRAIN: Right. MR. KLATZKOW: That's one approach. And the temporary signs would have to corne down. MR. SCHMITT: Any sign that's been permitted is designed by a registered professional engineer, or I mean, the structure itself is stamped and sealed, designed for, normally in this case 140 mile an hour wind load. Unless you designed it to the wind load bands. But in most cases the design is at 140 -- actually, 139, to be exact. CHAIRMAN STRAIN: So if it's a sign that doesn't require a building permit -- MR. SCHMITT: Right. CHAIRMAN STRAIN: -- like the political sign -- well, now that's another discrepancy. Political signs do require a permit. MR. SCHMITT: They do require a permit. It's a temporary permit only so we know who put them up so we can advise them they need to corne down eventually; we'd like them to corne down so they don't clutter the landscape. That's pretty much why there's a time limit on political signs. MR. KLATZKOW: But then everybody who wants a temporary sign has to get a permit. MR. SCHMITT: Well, there are -- MR. KLATZKOW: Because now we're discriminating if you say only political signs have to get a permit but other temporary signs don't. MR. SCHMITT: Well, that's a good point. Because a real estate open house sign, they put it out, they take it down the same day, and that's what's in the code. Open house or some other type of real estate sign. Commonly we call those snipe signs. We will pick those up along the right-of-way, or if they're in the right-of-way we pick them up on weekends. You know, Call Joe For Lawnrnower Service, those type of signs we pick up on weekends, a lot of them throughout the week. Page 43 March 2, 2009 COMMISSIONER VIGLIOTTI: But what I'm referring to is like a political sign a commercial real estate broker will put up, four-by-fours with plywood. Now, that they don't need a permit for, that's a temporary thing. It's not the little -- MR. SCHMITT: You're talking about like a for lease or for rent or for sale -- COMMISSIONER VIGLIOTTI: Oh, yeah, four-by-eight sheet of plywood with four-by- four posts. MR. SCHMITT: Yes. Those are allowed in commercial developments where you're advertising for lease or for sale. COMMISSIONER VIGLIOTTI: Now, if we would force them to corne down in a hurricane, then could we force the political signs to corne -- DR. MANDELKER: Sure. COMMISSIONER VIGLIOTTI: -- down in a hurricane? DR. MANDELKER: The point is you can write -- this discussion is excellent, because it illustrates what I've been trying to say. You can write a provision that requires signs to corne down in a hurricane, provided the basis for taking them down has nothing to do with what's on the sign. COMMISSIONER VIGLIOTTI: Right. So it's not political, it's the type of structure. DR. MANDELKER: Any sign -- we can define that any way you want to. It has a permit, doesn't have a permit, has a structure, doesn't have a structure, as long as you're not defining it in terms of the speech, because that's what they're worried about. MR. SCHMITT: I mean, our political process normally is in the primaries, what's that August, early September, and then again in November when we have the general elections. Certainly the hurricane season's not going to impact the general elections, but it does impact the time period when we're -- you know, when that's the . . pnmanes. Page 44 March 2, 2009 Diane? Go ahead. MS. COMPAGNONE: The real estate signs, if they're 32 square feet or eight feet in height, they do require a permit. But they do not require engineering. Anything bigger than that would require engineering. We might want to look at the code and put something in it that anything under a certain size on the temporary signs, if that's what you're concerned of for the hurricanes, that needs to be removed. Or we can change the size of what needs to be engineered. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I'm not so much concerned about the hurricane situation as I am about the political versus non-political. And if we're forcing them to get a permit, that will cause a problem on the other point with permitted and not -- MR. KLATZKOW: But you can't discriminate. You can't just say we're going to force political signs to get a permit but real estate signs not to. Because now you're starting to discriminate. MR. SCHMITT: Well, the only reason we required permits for political signs -- in the past the only reason we required it is -- MR. KLATZKOW: To pick them back up. MR. SCHMITT: -- so that we know who put them up so we can tell them gee, it's time to take them down. Because the community has always made it an issue that after the election -- 14 days, if I'm not mistaken -- within 14 days they would like the political signs to corne down. And that was -- MR. KLATZKOW: Again, we don't have to change this provision, but now you're going to take a risk that somewhere down the line somebody's going to challenge you on the constitutionality of regulating political signs, you know, just as political signs. MR. SCHMITT: And you know how they tend to pop up everywhere throughout the community, and there's no problem, it's just a matter of making sure they corne down. And that's the concern of the community, after the election. Page 45 March 2, 2009 DR. MANDELKER: If you single out political signs, that's probably the most dangerous thing you can do, because it's not commercial speech. See, it mentions your priorities. I think you can write this provision in such a way that you don't mention speech at all. You could find a way to write it so you don't mention speech. They base it on structure, base it on size, base it on something else. We're not going to have a political sign provision anymore anyway. And hopefully we're not going to have model home provisions and open house provisions and things like that that I think are dangerous. So you can write this provision in such a way -- this is a good example, Mr. Chairman, of how the house comes tumbling down, you see. And we start out with the free speech issue and all of a sudden we've got this issue which is ancillary to it. But you can write this in such a way and probably the discussion is helpful to get it written the right way so we get it taken care of so that we're covering all the signs we ought to cover, no matter what they say. CHAIRMAN STRAIN: Well, and the reason you're saying there's no -- those provisions aren't going to be there is because we're putting them under the temporary provision. DR. MANDELKER: That's right. CHAIRMAN STRAIN: Okay. Mr. Murray? COMMISSIONER MURRAY: I'm hearing that we can write this and we can change that. And, you know, you had a task force or a group of people who spent six months in earnest doing this intensively, and it seems a very short span of time for us to be able to get into this and start writing what it is. I would hope that we would be offered to the extent plausible and possible as much information as we could have in order to make a judgment rather than us begin writing the details. ' Page 46 March 2, 2009 So I don't know, I'm beginning to feel a little bit uncomfortable about what we really are being asked to do here. DR. MANDELKER: That's a very good point. And that's why I tried to summarize what we did in a general way. And let me summarize that again, that I found that there is nothing wrong with what you said about real estate signs, the thing the sign's on. The problem is the way they were defined. And there was a whole -- there are a whole series of definitions in here that you'll see changed. We went through where we could and changed the definitions and rewrote them into content neutral way. That's one thing we did. Now, what that means is, you see, we define a real estate sign as a sign on premises offered for sale or lease. That's another free speech rule. You can have time, place and manner regulations. You can regulate time, you can regulate place, you can regulate the manner. That means that anything can go on a real estate sign, not just, you know, for sale. Anybody can put anything there. So that's one thing we did, we changed all the definitions so that they were content neutral. We -- and that meant for some kinds of signs, signs at entrances to subdivisions and directory signs, directional signs, there was a definition of directional signs as signs giving directions or something like that. That's content-based. We changed that to signs located at entrances and exits or something like that of property. So we went through and changed all those definitions. And having done that, we had to go through the ordinance to make changes on where these signs could be allowed and under what circumstances. We have a definition, you know, multi-unit properties need some kind of directory signs with names, but we couldn't do that. There was a definition of a sign that had names on it of the occupants. We had to take that out. Well, we've got that changed in such a way that it's still there. And you know what kind of a sign it is, and we indicate where it Page 47 March 2, 2009 can be held. That's one thing we did. That was probably the major issue here. Then there were a bunch of speaker-based provisions that we just took out. I can't remember all of them. I know we took out the provision allowing athletic fields to have signs on fences. I mean, those were speaker-based. It was a particular type of use. And there are a few of these left that I have questions about that we can talk about later. So we changed that. Something else we did. As I said before, we can go over this again and again. We took out all -- anything that involved discretion, except for variances. And there are dozens of these that I had to go picking through. It said, as I said, setback is so much, only the county manager can make a change. You can't do that. You can't do that unless you have -- why? I would say well, how often is this going to happen? Does this happen very often? No. Well, why bother with it? Out it goes. Conditional uses went out. That's something else that we did. So speaker-based definitions, uses, all the discretionary provisions. And then when it got to -- when we carne to this prior restraint issue, we looked at the permit process and we looked at the permit application and decision-making 'process, we looked at the variance process, as I said. I've discussed this with friends. I'm taking the position we need to worry about the variance process just to be safe. And so we rewrote the standards and criteria and we put in time limits for all those. Now, there's one place left where that hasn't happened, and that has to do with planned unit developments. I have another book on planned unit developments that I just wrote, so happens. And they were pretty messy in the ordinance. So in order to avoid any free speech problems with signs, we cleaned that up. And we're in the process. You see, over in the planned unit development section of the LDC there was a provision for sign plans of some kind. Page 48 March 2, 2009 And a decision had to be made on that. Well, standards have to be there, process has to be there. Process there in the application, the time limits have to be there. Well, trying to write some kinds of standards that are not too vague is a difficult problem. It's a head scratcher. We're working on that. Fortunately that provision is outside the sign code. So -- and I don't think it's -- it's not in the sign code and I think we'll do a good job on that. So those are the major things I think that we did. Those are the major things. But I've got to tell you that, you see, for example, take this issue of -- and that's what you'll see in here. Take this issue of directory signs or names of occupants for multi -- you have to ask every time you do something, what is the aesthetic reason? What is the sign reason for it? Well, here it is. Look, there are a number of occupants here. They need a special kind of sign. Has nothing to do with free speech. Hopefully that's going to stand up. So what happened was when we took out the provision that authorized specifically names of occupants on signs, we had to rewrite that to make it clear that that's what this was for and where that was going to be. And that's what you'll see in there. Some of it just got tossed out. Some of it we tried to rewrite. And I went back and I said -- we didn't do it. But those were the main things that we did throughout here. But you can see that, as in this example, every time we dispensed with the content-based direction, we had to work with it to get it right so it was accomplishing the same purpose, as you said, without being content based. And that took some time every time we did it. And that's what took -- we've had how many telephone con -- we've probably had -- MS. FABACHER: Ten? DR. MANDELKER: Ten telephone -- we probably had 20 hours of telephone conferences on all of this, at least. Plus e-mails. I've got a Page 49 March 2, 2009 file. Anyway, so that's what we did. Those were the major changes we made. But let me just say this, that it did mean taking out an awful lot of stuff that just, you know, doesn't belong there. And I suppose that the athletic fields with fences, they're not going to be able to put stuff up on the fences anymore. There's nothing in there that allows them to do that. CHAIRMAN STRAIN: Okay. DR. MANDELKER: We're still fussing with institutional uses. Anyway, 10:00. CHAIRMAN STRAIN: Doctor, we're going to take a IS-minute break, corne back at 10: 15. While we're taking the break, I still have a series of general questions about your introduction, but I'd like for the Planning Commission to kind of corne to a consensus on where we want to go today, so we can understand what we're going to be doing here for the rest of the day and how long we want to stay. So we'll corne back at 10:15. Thank you. (Recess. ) CHAIRMAN STRAIN: Okay. When we went on break, I asked the Planning Commission members to think about the process today, and what I wanted to relay to everyone is stuff you already probably know, but I made a list of it. There was a -- during the month of, I think it was January and even February, Catherine had attempted several times, maybe just a couple, to schedule an introductory meeting with the Planning Commission where she was going to make a presentation of what it was that the sign ordinance changes evolved around. And I think we're getting that today, and find it very useful, because the doctor's comments certainly are something that would have been nice to have before we read the document that we're going to be dealing with. I heard the doctor say also that they're still tinkering with it. In fact, we Page 50 March 2, 2009 got a page of 14 suggested changes by the doctor this morning in our opening notes. Then I heard him say that we also need three to four more months, or he could use three to four more months to make this a better document in comparison to other communities smaller than us that have taken a year or more, and we've only been at it six months. And I also would have thought, especially now knowing and hearing the introduction, if we had a clean copy of just what was being considered for the ordinance, we certainly could refer to the strikethrough but one as the doctor would like to see it written with all the language that we could start questioning having more background in it. I think that would be a much better way to approach the reading of this ordinance. Now, I'm only bringing this up now because we've got today and tomorrow scheduled. I don't know if it's beneficial to try to read this ordinance over having this new information in mind and the way it's presented by tomorrow morning, or would it be better to finish up with the introduction here today, try to peg around noontime as a departure time, give as much direction as we can, and to be honest with you,' I think the conservative approach, and then let it be expanded through discussion, rather than vice versa, is probably a better way to go, and then rescheduling this meeting after the additional time the doctor needs to thoroughly do a comprehensive ordinance, and after the tinkering is done. Now, that's what I'm throwing to the Planning Commission for discussion only because we need to kind of plan out our day and tomorrow. And then if there's changes, we need to give the heads up. It's a majority decision; we'll see where it goes. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: What I would like to walk away with today is, one, the presentation by the doctor; number two, some direction of exactly what is expected of us, and I'd like to corne back the next time with a -- as Commissioner Strain said, one document Page 51 March 2, 2009 without all the strikethroughs and just the proposed document that's going to take us forward. That's where I'm sitting. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: I think it would be wise to take all of what we've heard so far today into account in rereading the document. I don't have a problem, however, with the strikethrough and underline document. That's really sort of an easy way to see where there were issues and problems and what they've done to correct them without having to flip back and forth with -- between multiple documents, and -- if the document that was passed out Thursday is the right one, you know, and! or if in giving time, which I think we should give some additional time to this process, there are changes made, then whatever that final document is when the doctor and staff have corne to conclusions or consensus, I guess. CHAIRMAN STRAIN: Well, I think the strikethrough is a tool to use, and I would also think that if we can solidify all of the changes into a final format and have then both of them, it would make it a lot clearer to follow and read. And I had the hardest time -- and I'm trying to do this for some time now in reading these kinds of things, but this one was very difficult to read because of the way the strikethrough version was presented in our packet. So, I mean, that's just a -- that's just a suggestion. You want a direction, that's a suggestion that I have. Are there any other comments on the process today? Mr. Murray? COMMISSIONER MURRAY: I think it's possible to go through all of this detail, but I think it would be in error to try to do so having heard the comments from the doctor and the questions that will . continue to grow, especially as there seems to be changes as we go along, notwithstanding the number of changes we may cause by our scrutiny. Page 52 March 2, 2009 So I would be in favor of postponing this, giving this group an opportunity to do the job more thoroughly, if they need that. I'm predicating that statement on the doctor's statements. If staff is of the opinion that they're all finished, that's another matter, but I got the distinct impression that we still have outstanding Issues. That being the case, it would be reasonable for us, as a body, to deal with the entire matter and whatever time it would take to go through it, go through it. And if we're not under compulsion to make changes immediately, then I think that would be a proper thing to do. CHAIRMAN STRAIN: Well, okay. I think we'll just keep going through the introduction. Catherine? MS. FABACHER: I just would like to say that at this point staff doesn't agree totally with the doctor. He wants to go to one side, and staff cannot accept some of the changes. And so the reason that we're really here is we need some direction from you on what you think will fly before we can continue to finish the rewrite. CHAIRMAN STRAIN: Okay. Catherine, I'm not so concerned. The doc- -- first of all, Doctor, are you an attorney as well? DR. MANDELKER: Yes. I think the doctor got started -- I don't know how it got started. I have juris doctor from Yale. I guess that -- I am a law professor right at Washington -- CHAIRMAN STRAIN: Okay. I -- from my perspective, I'm not so concerned at this point where staffs issues are. Staffhas had six months in which to provide ample opportunity in this. What I am concerned about is from what attorney's suggestions are to the county attorney's responses to that. And I don't know -- Mr. Klatzkow, have -- what is your thoughts on this document at this point? MR. KLATZKOW: We have policy decisions to be made. As an example, signs on athletic fields. I don't know that we want to ban Page 53 March 2, 2009 signs on athletic fields. That's part of the nature of this community. It's part of the nature of many communities. Now, I finished that if you're looking for a no-risk ordinance, you would do that. But a policy decision needs to be made with -- after talking, you know, to the doctor as to what the risks are, the benefits are. Do we keep this knowing that, perhaps, someday somebody might say something, knowing we haven't been sued about this in the past, or do we go the conservative route and just strike it? I mean, it's a lot of revenues for our schools, for example. CHAIRMAN STRAIN: Well, what I was thinking is if the doctor proposed what he feels is a most safe document but the staff with the County Attorney's Office went through the document and said, based on this particular provision and the doctor's comments, we wouldn't be allowing this, and then -- see, the hardest part we have is understanding what the intention is and what the meaning is of what you're telling us in this language. DR. MANDELKER: Let me clarify that some of the provisions that were struck, many of them were held unconstitutional by the judge, including this provision for signs on athletic field fences. He held it unconstitutional, and I don't see how -- frankly, how he can put it back in. That's one set of -- one set of problems. Now, there are a number of other provisions that he didn't get to that I still think are unconstitutional and ought to corne out. So I don't see, sir, how we can put -- keep a provision in the code that the judge held was unconstitutional. MR. KLATZKOW: I'm not sure I necessarily agree with you on that. But I guess, Mr. Chairman, what you're getting at, you would like a list of the changes that are being made by this ordinance from the prior ordinance, right on down the line, and then pro and cons for the change? CHAIRMAN STRAIN: It would be more helpful for us to focus Page 54 March 2, 2009 on what this is meaning to our community. And I still have more questions about some of the things you said to try to understand this, but it's like the issue that I had to kind of force out involving the time frame of the political signs and can they stay up and have to corne down during hurricanes when we don't make others do that. Those are issues that will have an impact on the community. The community hates to see those political signs up too early. But if -- there's no way we can stop that, and that's a pro and a con to what you're suggesting. DR.MANDELKER:Yeah. CHAIRMAN STRAIN: And I think that helps us make a decision or give direction or seek alternatives that might end up being viable like we did in the short discussion we had here today -- DR. MANDELKER: Right. CHAIRMAN STRAIN: -- about why they don't -- why some signs don't have to be taken down. Maybe we -- maybe classification is all that's needed. DR. MANDELKER: Absolutely. CHAIRMAN STRAIN: Understanding this new language you're suggesting to that level would certainly help this board, I think, understand better what it is we're asked to being -- approve or not approve. And so that's what spurred my discussion. I'm not sure where the Planning Commission still wants to go today. Do we at least know if we want to go till 2:30 today? Because if we do, we've got to take another hour off for lunch, and then what are we accomplishing if we do so? Do we want to go tomorrow? What is the consensus of this board? Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Doctor, when -- how long before you finish your report with us or your -- DR. MANDELKER: Today you mean? COMMISSIONER VIGLIOTTI: Yep. Page 55 March 2, 2009 DR. MANDELKER: I've finished my introduction today. Let me just say, we need clarification. If you would like a list of every change we made in the ordinance and why it was made, I mean, that we can't do today, but that's something we can prepare for you and get to you soon. What I'll -- in addition to what I have already said today, I would simply like to go very briefly through this what they call punch list here and tell you where I still have problems. , CHAIRMAN STRAIN: I still have questions from your introduction. DR. MANDELKER: Oh. You still have questions. CHAIRMAN STRAIN: Yeah. Mr. Vigliotti, go ahead and let him finish. DR. MANDELKER: That's all I would like. And let me just say, obviously, I'm here to make recommendations. The county has to make these decisions. If you want to make the decision that you want these signs on athletic fields even though I don't think it's a good idea, that's your decision to make. It's not my decision to make, and understand that. COMMISSIONER VIGLIOTTI: All right. The question I'm trying to address is, what time do we finish today? By 12 o'clock, if we're here till 12, will that be sufficient for you? DR. MANDELKER: Oh, sure. It will take me ten minutes to do this. COMMISSIONER VIGLIOTTI: Okay. So I think we should leave at 12. Myself, personally, I don't think I'm ready to address everything until I see, as I asked for before, the new -- the new way it's written up without all the underlines. I know Commissioner Caron might want to see them, but I'd like to see a clean copy and a copy with the underlines and cross-outs. Until I get that and get time to review it, I don't know how effective I can be tomorrow. CHAIRMAN STRAIN: And Catherine, you've been in the Page 56 March 2, 2009 community long enough to know the sensitivities of the community on certain issues. If we were to corne back -- and when we do corne back and meet again -- to understand how some of those issues are being addressed, like the political sign one that I used as an example a few minutes ago, to know that this meant political signs really don't have any limitations, that's a big help. I mean, and -- I mean the political signs for elections. Right now, in taking them down and putting them up, that is a big criteria for this community, if we -- if there's not a limitation on that. Maybe we ought to look and know that, in our -- as like an up front discussion, and then we can help give direction there, because I think one limitation might be that if a political sign's not on the property that's owned by the politician, maybe there can be time limits put on it. Maybe things like that. But I don't know how we would explore that, but those are the kind of policies or decisions or comments that I'd like to know have changed dramatically rather than try to weed them out of all the opaque writing that's in this document, because it's real hard to find all that data succinctly in the document in front of us. Mr. Murray? COMMISSIONER MURRAY: Staff indicates that it has differences of opinion with the legal scholar that it hired to help them proceed. What foundation is staff using or what basis is staff using for the differences? Are they particularities of the community's interests, or are they structural in nature? What is the basis for that? And that would help me understand more effectively what I would like to do simply because I find it difficult to ignore the advice given by the scholar. Ifhe says it's probably going to be constitutional and we are challenged, we're right back again where we began. So please, if you can, advise if there's something that can help us to understand why we might agree with your disagreement with the scholar. Page 57 March 2, 2009 MS. FABACHER: Well, one good example is the open house signs. And I know you'll recall, we must have worked for a year for the -- and worked with the Realtors, Ellie Crier, and I can't remember the gentleman's name, but I know Joe is -- COMMISSIONER MURRAY: Bill Poteet. MS. FABACHER: Right, Bill, exactly. We worked for a very long time to put that in, and now we found out that there are portions of it that just -- the doctor said are inappropriate. And so my concern is, I know that we worked a year, and that the whole reason we did it was because code had to spend so much time picking up all of these political signs -- I mean, these open house signs, that they were placed illegally, then they were left there. And Joe said at the meeting, the public meeting, this is like a hundred staff hours to go around every weekend and pick these things up. So we carne to an agreement with the Realtors, and they agreed to abide by it. We wrote that legislation, unknowingly, that we were violating free speech issues in good faith, and that solved the problem. That's just one of the issues. So -- and the issue about the hand-held signs. I mean, if we don't put something in there, and the doctor says we can't -- it's just a matter of -- you have to weigh the risks for us. But we could have a -- lately there's been -- they've stopped enforcing it. There's been lately a proliferation of these people holding signs, and it could go up because more people are out of work and they're going to get paid to stand out on the corner with the sign all day. And Circuit City has them. I mean, this weekend I can't tell you how many businesses I saw with this proliferation of handheld signs. I mean, I know that we don't want all these people walking around with signs, but how do we achieve that? So -- it's not so much a difference, but it's just that -- how far are we going to go? And my -- the point is, is that unless we get guidance from you and the county attorney, we don't know how to go to finish Page 58 March 2, 2009 rewriting it. I understand what you want, but unless you guys make a policy decision, we're kind of at a little impasse till we know how far you're willing to go. And so that's what I was going to say. I could have more examples for you, but you'd probably like to get Diana up here on the specific things -- DR. MANDELKER: Yeah. I could go through the four or five types of signs that I have objection to, if that would be helpful, and then -- would that be helpful? Would that be a good way to proceed? CHAIRMAN STRAIN: Well, let us -- we'll proceed first still with the questions and responding. I want the public to participate at different intervals, and this will be one of them, and when we finish with the questions I have, then Susan may have some comments that she can lend to this discussion. MS. ISTENES: Thank you, Mr. Chairman. Susan Istenes, zoning director. I think -- I'm trying to answer Commissioner Murray's question a little bit more in detail and just maybe give you a little bit of background. To answer your question, yes, it's the planner's knowledge of having worked with the sign code and our Land Development Code and with community groups and issues. I mean, we -- I think we amend the sign code every cycle. So that is one of the reasons for the basis of disagreement. And I think Jeff pointed out a good one with respect to the signage around ball fields or on fences. We know that's something that the community likely wants based on our experience. It's kind of the nature and the character of our community as well. So that is one of the reasons for the basis upon which we disagree. Another example I wanted to just give you on this list, and it's been mentioned a couple times is, in many of the zoning districts model homes are allowed only by conditional use approval. And in our sign code, we reference model home signs, and I believe that's one Page 59 March 2, 2009 of the areas that Dr. Mandelker disagrees with us; however, we feel that the risk is relatively low. And we have met, myself, Catherine and Jeff Wright, several times in kind of evaluating the differences between Dr. Mandelker's opinion and ours as to whether or not the risk is low or high for a future lawsuit on that. And we felt that the model home provisions was pretty cut and clear and that those model homes were entitled to a sign just to advertise for the model home for the period of time that they were allowed to operate, which is temporary in nature anyway. So maybe there's a better way to evaluate that. But to answer your question, that was one of the other bases upon which we considered knowing what the community wants and knowing what we have in our community and what works and the risk tolerance for legal issues. COMMISSIONER MURRAY: Thank you, Susan. I appreciate that. CHAIRMAN STRAIN: Okay. Well, why don't we move on. Around a little before 12, we'd have to take a break either for lunch or for the court reporter anyway, so let's just figure out at that time what we want to do for the rest of today and tomorrow. And I think you've got some input now, and we'll just keep moving forward. Doctor, during your presentation or during Catherine's, the statement was made that each resident can put anything up in their yards. Sign copy does not matter. And, of course, I remember reading one of the copies I have. There are some size restrictions there. But what about community standards? I mean, there's a lot of vulgarity. I know discriminatory language can't be put up, but there are a lot of unsavory ways to say things that -- generally good people just don't do it, but we don't have all good people in the world, and we have to have regulation to prevent those more distasteful words being used on, say, someone's yard. How strong can we be to what our community standards are ina Page 60 March 2, 2009 regards to verbiage? DR. MANDELKER: Well, I think you can prohibit obscenity, obviously. But, you know, if you get some strong language that says, for example, I hate the war in Iraq or something like that, you know, I don't think we can deal with that. I think we have to let people say what they want to say as long as they're not obscene. CHAIRMAN STRAIN: And there's no limitation on time for those kind -- they can just put a sign up and just leave it there and -- within their property to whatever extent -- DR. MANDELKER: No. I think that's right. I think the understanding is, that has -- that's a permanent sign. CHAIRMAN STRAIN: Okay. COMMISSIONER KOLFLAT: Mark? CHAIRMAN STRAIN: Yes, sir. COMMISSIONER KOLFLAT: Can I elaborate on that? Relative to obscenity, what if somebody wanted to put up a sign that said strip house? DR. MANDELKER: That's a commercial sign. These signs are noncommercial signs. We can prohibit commercial signs in a residential district. COMMISSIONER KOLFLAT: So that wouldn't fall under obscenity? DR. MANDELKER: Yes. Well, that -- a sign that says strip house, I would say, would be commercial. That's a commercial sign. It's not anything that's not noncommercial. It doesn't deal with an election or an idea or a point of view. That wouldn't be allowed. COMMISSIONER KOLFLAT: Thank you. CHAIRMAN STRAIN: Okay. PUDs. I know you said you've done a lot of work on the PUD section, or you were working on it and more was corning, or whatever. During the course of an approval of a PUD, the applicants corne in and offer up all kind of things to get approved to conform to Page 61 March 2, 2009 compatibility standards and other standards, and they change setbacks, they put in buffers. We extract things, road improvements and things that are questionable -- I mean about how we get there -- but more or less the applicant agrees to them all in order to get the zoning. If the applicants corne in with a series of sign uses within their project that do limit things above and beyond our code, because it's in the PUD, because it's done to entice zoning on a voluntary package, let's say, can that be one way of regulating signage in PUDs? DR. MANDELKER: Sure. I think that what -- that's what we contemplate, that the applicant for the PUD would corne in with his own sign plan, and that would become part of the Planned Unit Development approval. But we would have to have some standards to approve that sign plan, that is, we couldn't just let them negotiate together and decide what they want because, again, you have a prior restraint problem. You have an application to put up signs, and in order to satisfy a prior restraint doctrine, we would have to have very clear standards that would have to be met before that sign plan could be approved, and we're working on that. CHAIRMAN STRAIN: Okay. Is there any -- and you've been doing this, obviously, for a long time, you've written books on it. Have you established any community that has an ordinance that is as necessary as it needs to be to be protective at this time? DR. MANDELKER: Have I established any community that what? CHAIRMAN STRAIN: Has -- do you -- have you established any community ordinances that are as, let's say, protective from-- DR. MANDELKER: Oh, protective. CHAIRMAN STRAIN: -- the constitutionality viewpoint as they can be? Do you have a model ordinance that you have used somewhere? DR. MANDELKER: Well, let me say this: I think the ordinance Page 62 March 2, 2009 in street graphics is protective. But I will say this: Talking about referring to what the county attorney said earlier, that with changes, in the case law there are some suggestions in street graphics that I would not now make because the cases have become stricter. But with the few exceptions, I think the street graphics model ordinance would meet free speech objections. CHAIRMAN STRAIN: And that's a commercial application? DR. MANDELKER: That's partly commercial. We did not deal with the noncommercial sign there. The street graphics ordinance deals only with on-premise commercial signs. We stayed away from billboards. We stayed away from the noncommercial signs. But insofar as on-premise commercial signs are concerned, street graphics, I think is protective. CHAIRMAN STRAIN: Well, in order to have -- save time, why don't we just use that for this replacement of the ordinance we have now? DR. MANDELKER: We have to some extent where we can. The difficulty is that street graphics doesn't cover everything. There are some issues we have here that street graphics doesn't cover. But we've gone to street graphics whenever we can to use the street graphics model. CHAIRMAN STRAIN: Okay. And then, Doctor, that's the last one I have for right now, and I think what we ought to do is -- you had another ten minutes you wanted to discuss something, and then I'm going to ask for the public comments at that point. DR. MANDELKER: Right, right. If you look at this list that I drew up, I simply want to identify four or five types of signs, at least in present form, I think are -- won't fly that might be objectionable. The first set are the open house of model home signs. The way they're drafted now, they are -- it's obviously implied a certain content, and they're limited to certain speakers. They're limited to real estate agents and people who are displaying homes and the like. Page 63 March 2, 2009 I think -- I was thinking this morning that it might be possible to define those signs in such a way that they would be protected. For example, we could define a model home sign as a sign displayed on a model home, and that would be content free. They could put anything they wanted to put there. An open house sign would be a sign displayed on an open house. So Susan, I think thinking about that, we could, perhaps, redefine those signs there such a way that they would be content free. The only problem I have is that -- this question of having too many sign types in the ordinance. That's something we just have to think about it. But I think sitting here today, that we could probably deal with that if we had to. Make a note of that. Menu boards are another one. These little menu boards that the drive- in places have. Let me just say, by the way, that we're dealing here -- we have a number of really tough problems to deal with and get it right. And these examples are all on the edges. Now, I know that they're important to the community; but to me, they're on the edges, you know, meaning that they're second-level issues. Menu boards on these drive-ins -- I think that I made a suggestion there. The way it's written now, it's content based and speaker based. But I suggested those boards are not usually visible from the right-of-way. I suggested we define signs as signs visible from the right-of-way. That would exempt menu boards. I think another way of dealing with a problem like this is to deal with it administratively. I don't think we -- an ordinance can't possibly deal with every type of sign that comes up. What about signs on dog kennels that say "Fido lives here"? Is that a sign, you know? We just can't deal with everything. But I think we can deal with menu boards by defining signs as those visible from the right-of-way and try to work on that. Another set of signs are signs for service stations. Oh, yes. I'm sorry. Open house, on your February 26 or 25th, a draft -- the open Page 64 March 2, 2009 house and model home signs at the bottom of Page 25, model home -- menu board signs are on Page 39. The service station signs are on -- oh, I'm corning -- the next one is service station signs. They're on Page 40. Service station signs. Sorry. Let me just go back and say one thing. I don't know why the real estate sign isn't enough. If you want to say model home on a real estate sign, put it on the real estate sign. We allow real estate signs. We don't limit the content of a real estate sign. So why not say, okay, you can put model home on a real estate sign, you can put open house on a real estate sign. Why have these separate provisions in here? That was another thing. Service station signs. Those are clearly content based and speaker based. It's a particular kind of use. It's a particular kind of content. And I don't know why service stations need a special provision. That one, I don't know that we can right or wrong that. What I would suggest doing there is to look at what's in there. There's some provisions on canopies. There are a couple of other things -- and just write something about canopies that applies to all canopies, not just limited to service stations. Look at what we want to do for service stations. To give you an example, going back to the open house sign. If I have a real open house, I can have an open house sign. What if I just -- my home and my neighborhood wants to have a walk-through of houses and I want to put an open house sign on my house so they know that my house is open for the walk-through. I can't do that, and that's what the courts don't like. So service stations, if those signs present problems, write something for all of them and-- CHAIRMAN STRAIN: As you go through this, Susan may have comments as to the items. I'd like to hear what -- her input, too, if we could. MS. ISTENES: Thank you for recognizing me. On this one I just Page 65 March 2, 2009 wanted to share some information with the board because it happened a long time ago, probably back there '97/'98. The board at that time directed staff to do a comprehensive study of automobile service stations or -- see stores that sell gas, same thing. And we've actually -- and I think Kathleen may have discussed this with you, Dr. Mandelker, but we actually did a study that we presented in the public, and that's where all these regulations carne from. And I think there's probably more of a legal basis for having specific signs related to automobile service stations when you've actually done that type of study than just kind of randomly. And that's really where they carne from. Not only were there signage changes, but there was also site-design standards that were adopted at the time, minimum area, minimum setbacks, some landscaping enhancements, and things of that nature. So I don't know if that gives -- my understanding is that gives the signage provisions a little bit more of a legal basis than just kind of willy-nilly deciding you're going to single out service stations and not allow them to have certain typical -- what I would call typical signs. I know also the City of Naples, I believe, doesn't even allow them to put the price on their gas station sign. So we're not alone. But I just wanted to share that info with you because that, I think, would change it a little bit. CHAIRMAN STRAIN: Thank you. DR. MANDELKER: Yes. That certainly helps as far as the aesthetic justification. But let me point out, service stations sometimes get recycled. And so you can have a building which actually just looks like a service station but it isn't a service station. Well, that building's going to have different requirements than the service station's going to have. That's what the courts are worried about from the free speech point of view. And they're going to say that's wrong. Just let me say again that these are policy decisions, Susan. We're going to have to talk about -- Page 66 March 2, 2009 COMMISSIONER MURRAY: I cannot hear the gentleman because -- DR. MANDELKER: One more -- there's one more sign in here before I get to the hand-held signs. The so-called conservation signs, signs on conservation land. We provide for an entrance sign, and it's the same problem. If I have some kind of attraction with an entrance, I can't have that sign. The conservation lands can. Well, let's write a provision for entrance signs then that applies to everybody. Let's be fair. That's all I -- that's all I'm saying. Now, there's one more -- the other sign on the list, the hand-held signs. Catherine, I'm not really saying -- I said I would prefer not to regulate them. But I think I'm comfortable saying we can regulate them if we understand there's a risk. What I -- what I do have a problem with -- I have no problem regulating the size and the height. I mean, we're certainly entitled to say, you walk up and down the streets with the hand-held sign, we regulate the size of the height so they're attractive and they don't clutter. What bothers me is telling them they can only have them a certain period of time during the year, because we're not telling other people that. Now, I don't view it --let me just say this. This is unchartered territory. We have the one case. It's not been litigated. We're just kind of going by our gut here a little bit, and it seems to me that a temporary sign is something you put up for something that's temporary, whereas a business may say, we want hand-held signs all the time. Anyway, I think this is something we can work out, I really do, with hand-held. I think we can work out most of this. CHAIRMAN STRAIN: Okay. DR. MANDELKER: I think I have the -- I guess have the most problem with the service stations, and I think -- I think what we ought to do there -- you see, what this is getting us to do is to look at, well, Page 67 March 2, 2009 what are we requiring our service stations to do? If they're doing enhanced landscaping, well, shouldn't everybody have enhanced landscaping? If they have to treat canopies a certain way, shouldn't everybody have to do that? And so I -- corne to think of it, as we talk, I think we can work through most of this, but I think we'd like some direction from the commISSIon. CHAIRMAN STRAIN: You've got to make sure you're speaking to the speaker, Doctor. When you turn your head, it's hard to hear. DR. MANDELKER: I'm sorry. I think we'd like some direction from the commission, Catherine is saying. CHAIRMAN HENNING: I think you're probably going to get some before the day's over. So Mr. Murray? COMMISSIONER MURRAY: Yes. Professor, on the second item on the last sentence it says, sections requiring a display of permit numbers should also be moved. One of the benefits to any reader of our code would be finding ancillary information available that will guide them. Causing people to go to other sections to pick up pieces and bits sometimes, or perhaps always, not only frustrating, but a disservice. So please tell us why you think that sections requiring the display of permit numbers should be moved. To what reasoning is it based on? DR. MANDELKER: It's content. You're prescribing the content of a sign. You're saying that permit numbers have to be there. I have to tell you that I really don't think that that's going to be a problem. I really don't think so. But it is content based, and we have to take into account a judge who's really, you know, out there with a six-shooter, and he's going to look for things. But I agree with you completely that ancillary information should be in the code. All I'm saying is that the conservative, protective thing to do is to move it someplace else. You can still decide, we're going to Page 68 March 2, 2009 keep it in the code and take the risk. There is a risk there. I don't think it's a big risk. I don't think a judge is going to say that's consent based because you had address numbers on a sign. I mean, that's a safety question and so on. But you see what I'm saying. COMMISSIONER MURRAY: Professor, I think that facilitates genuine care for a sign maker and a sign purveyor and a person who wants that sign to be there, that they're just and they're appropriate as opposed to a snipe, which is not, of course, that type of sign, but that effort. And so I would -- I would think -- now I'm beginning to understand now the differentiation between staffs desires and needs as against your recommendations. Thank you. CHAIRMAN STRAIN: Okay. Before we go to public speakers, are there any questions from the Planning Commission further at this point? (N 0 response.) CHAIRMAN STRAIN: Okay. We have two people I know may want to speak. And I'll ask each one of you to corne up to the podium, identify yourself, and if your name is different, to spell it out. I shouldn't -- of course, different is a matter of discretion. And we're only right now speaking to specifically the introductory part of the doctor's speech, and we will be asking you to participate as we go through the whole document, so don't think you have to get it all on the record right now. So go ahead, sir. MR. BOYD: Thank you, very much. My name is Michael Boyd. I'm the president of Signs and Things. We've been doing business in Collier County for 30 years. I've worked with Diana quite a few times on some of these changes, although I finally got the final draft this morning. My comment would be, is, the way we use this draft or this ordinance is going to change totally from the way we've used it previously. Previously we've used it -- if it was in here under Page 69 March 2, 2009 prohibited signs, we couldn't do it. Notice, all of a sudden, from what I'm gathering, if it's not in here, I can't do it. So it's going to change tremendously the way we use it. And I would like a little bit more input. If we're going to go ahead and change the ordinance totally, let's go through it tooth and comb and do it once and do it for the next ten years. That's what I would ask for. As far as, you know, some -- some questions, everybody was questioning whether or not you could do signs around the athletic fields. The way I read this in here is there's a section in here which basically exempts institutional signs from any kind of review, so that signs around an athletic field would be exempt from any type of review; is that -- am I correct? DR. MANDELKER: I don't know if an athletic field would be an institutional use. We're still working on that definition. MR. BOYD: Well-- DR. MANDELKER: I think by institutional use you mean educational, charitable, scientific uses, something of that -- MR. BOYD: Well, says Florida accredited public or private schools, K through 12. I would assume that that would be an athletic field at the school. DR. MANDELKER: That's correct. I think that one of my comments here is that that definition is also speaker based because it identifies certain speakers and certain schools. Now, once more, you could decide, we're going to leave that in and take a chance with it. What I'm saying is that to be protective or conservative, we wouldn't define institutional uses that way. We would define them in a general way as any use with a certain purpose, then we don't have that problem. Now, we could say, athletic use, if we wanted to and include the fields there. We could do that, absolutely. We could expand the definition. I recommended a definition of institutional use as a Page 70 March 2, 2009 nonresidential or noncommercial use for education, charitable, scientific and so on, purposes, or athletic purposes. That could include the athletic fields. We have to think about that. MR. BOYD: Okay. CHAIRMAN STRAIN: And when we go through the -- what we typically do when we get a final document that is -- to spend the time on, we go through page by page, and we ask to understand the changes and try to figure that out. MR. BOYD: All right. CHAIRMAN STRAIN: So we're not there yet, but you'll see that happen eventually on this one. MR. BOYD: Okay. All I would ask for is some more time. CHAIRMAN STRAIN: And I -- yeah, good point. MR. BOYD: Thank you. CHAIRMAN STRAIN: Good point, thank you. Sir, if you'd like to have any issues, please corne on up. MR. STEVENSON: Good morning. I'm Steve Stevenson. I'm president of Lykin's SignTek, sign manufacturer here. And basically, it's pretty much the same thing that Mike said. When we -- we're now going to a format where if it's not addressed here, then you can't do it, and that would stop any innovative things in sign codes, any kind of new signs that carne up, anything -- technology that carne up. If it's not here, we -- the answer's no. I just think that's kind of a hard way to go. CHAIRMAN STRAIN: Interesting, okay. Catherine. MS. FABACHER: I just had a comment. Ifwe do need to look at the signs and give new dimensions, allow for new technologies, I suggest we do that under a separate LDC cycle, you know, and we all work to do that under another one. We just -- we were afraid that that would just so much cloud the issues here because it's just hard enough to understand the legal. But I'm sure that the county would be happy to entertain an LDC Page 71 March 2, 2009 application for an LDC amendment to put some of these things in. But our direction was not to try and mix those, because we could, you know, argue -- I mean, not argue -- we could discuss those very points, you know, for a very long time, as I'm sure you're aware. And we knew this was so hard that our direction was -- Susan kept us on track not to make any changes to what you're allowed to do or anything. It's mostly -- it's our problem of what to call these things now, is what it IS. But we are totally sympathetic and willing to, you know, accept an application to amend the LDC to take into account the new technologies. We started to want to put something in about the signs that flash and have messages and all, and then Susan said, you're forgetting, we're not changing new stuff, so we pulled it back out. But I think it'd be appropriate to do it during a regular LDC cycle where you'll have much more of the public here because it won't be constitutional law. It will just be, what do you want to see in your community. And so, I think it'd be better to handle those types of changes, which are probably needed in a separate LDC cycle. CHAIRMAN STRAIN: But why would we want to -- if we're changing the sign ordinance now, why don't we make it as complete as possible? Why corne back in for more changes -- his point is well taken. Why don't we just fix it? I don't understand. MS. ISTENES: You're on a legal time frame, I believe. Didn't -- Jeff, did you all not agree to make these changes by X amount of time as a part of the settlement agreement? MR. KLATZKOW: No. As part of the settlement agreement, we need to get this done. But look, I'll go back to the judge and just say, look, we're working on this. We're having public meetings on this. This is a hard issue. MR. SCHMITT: I think, Jeff, when we first agreed -- again, for the record, Joe Schmitt. When we were first directed by the board to correct simply the constitutional issues in the code, it was -- we -- Page 72 March 2, 2009 MR. KLATZKOW: This is by the -- MR. SCHMITT: Wernet -- we were in a settlement agreement with the judge and the aggrieved party, and we said we would do it within six months. We're beyond even that sixth month, but we said we would solve that problem and that problem only. MR. KLA TZKOW: The board direction is to solve that problem. There's no board direction to look at the rest of the code. MR. SCHMITT: Then there was an out-of-court settlement. CHAIRMAN STRAIN: One at a time, please. MR. SCHMITT: There was an out-of-court settlement, and that allowed for this thing to be delayed a bit. But the original direction to the board was to deal solely with the issue of the constitutionality issue that -- and there were actually three areas in the existing code that we were directed to solve immediately. Jeff? CHAIRMAN STRAIN: Jeff, go ahead, please. MR. KLATZKOW: I understand that, Joe. Board direction is to solve this issue. What the chairman is saying is, while we're tearing apart the code -- and we are tearing apart the code, does it make more sense just to do this once than twice, and it's a policy decision. MR. SCHMITT: Yeah. I would agree with you. I think if that -- if that's the way we were going to do this, that would be -- if that's the recommendation of the Planning Commission -- and that's why I'm bringing up the history of this because things have -- it's changed since the original direction to do this because we settled out of court. There was a settlement, so that negated the expedience -- expediency in solving these problems. Now, if you want to do a complete comprehensive review of the sign code as it was done in the late '90s, that took quite a process. It involved the community. It involved the formation of our horizon committee, there were many, many meetings associated with that. And certainly, that -- if that's what the Planning Commission Page 73 March 2, 2009 recommends, we will take that direction to the board, and I don't argue with you, Mr. Chairman. I think if we're going to look at this and you want to look at a wholesale review, then we look at a wholesale reVIew. CHAIRMAN STRAIN: Well, let me back up a minute. You said that the board gave direction to basically stick to three elements of the case. Have you gone beyond that in anything that we've been reviewing here -- MR. SCHMITT: No. CHAIRMAN STRAIN: -- or we're going to be reviewing here? MR. SCHMITT: No. CHAIRMAN STRAIN: So you're still-- this entire -- basically-- and it's an upside-down operation. We're going from was prohibitive -- I mean, it was a good description that these two gentlemen have brought up. We're completely changing the context in the way we look at this code. That's pretty comprehensive. I mean, it's a whole flip- flop of the way we used to look at it. These are prohibitive and now nothing's prohibitive unless it's not defined. MS. ISTENES: Actually -- Susan Istenes, for the record. Our Land Development Code is a prescriptive code, so it prescribes what you can do. And so if you look in the list of uses in any zoning district, those are the uses that are allowed. There isn't a separate list -- there shouldn't be a separate list that says, and these are the uses that aren't. So honestly, there's no -- I think maybe one of the concerns is that the language in the current sign code was so descriptive that when you're applying and reading and trying to understand the code, it becomes, from a user's perspective and an interpreter's perspective, a lot easier to say, this is a shopping center sign and you can have eight tenants and your shopping center name on your ground sign. I mean, isn't that a lot easier to figure out what you need to do than if something comes up and says, you can have a ground sign 200 square Page 74 March 2, 2009 feet? And, you know, then you get into, well, you know, what does that entail? How many tenants can I have? What can it say? And that sort of thing. And I think what we were relying on was the detail in the language to tell us what we could do. Taking out the list of prohibitive uses doesn't change anything. If they're not set forth in the code, it's a prescriptive code, then you can't do them. If -- it is a good checklist to look at to make sure you're not doing them, but I don't think it really changes anything at all, in my opinion. If you take them out, it's just -- you're eliminating the checklist. You still couldn't do them anyway under a prescriptive code format. CHAIRMAN STRAIN: Thank you. Any other questions you might have right now? We'll be hitting you up as we go through this process. MR. STEVENSON: Thank you. CHAIRMAN STRAIN: Thank you. Yes, sir, something else? MR. BOYD: Yes. I'd -- if it's not changing things -- previously we could do time and temperature signs. I don't see time and temperature signs in this current ordinance. That, to me, if it's not in there, we can't do them. Is that correct? DR. MANDELKER: That's correct. Let me put it this way. If-- authorizing a time and temperature sign -- and there are court decisions on this -- is authorizing a sign with a'particular content. We can handle that, I think we have, by authorizing signs with changeable copy. You can put anything up there you want to. Put time and temperature there, you can put anything you want to. MR. BOYD: We have changeable signs now in the ordinance. DR. MANDELKER: I know, but -- MR. BOYD: Another change is, previously on a ground sign we could not do it in the shape of a logo. Can we do it in the shape of a logo now? Page 75 March 2, 2009 DR. MANDELKER: Yes. I think -- I think that restricting the use of logos is content based. MR. BOYD: So there's two major changes that are taking place in this, but I'm being told that they're not being changed. CHAIRMAN STRAIN: Mike, during the process of the last six months, how many times were you told about a meeting or called about your concerns on any of this? Do you have any idea? MR. BOYD: As I said before, Diana and I had many conversations. CHAIRMAN STRAIN: Okay. MR. BOYD: I do all my permitting myself, so I do have a good working relationship with Diana. She kept me apprised of what was going on. I did attend one meeting with the doctor, but I was told that that's only because I'm on the Contractor Licensing Board. CHAIRMAN STRAIN: Okay. MR. BOYD: But Diana kept me apprised of what was going on. She did a good job. CHAIRMAN STRAIN: Okay. I just wanted to make sure you had ample time -- some time for input. MR. BOYD: I didn't see this document until today. CHAIRMAN STRAIN: Well, we got it kind of short notice, too. As we move through this, whatever meeting dates we have, the more you attend here, we will be seeking your input on a regular continuing basis during the discussion, so you're not going to be limited to three minutes and at the end of the meeting. We'll get you up here more often. MR. BOYD: Thank you. CHAIRMAN STRAIN: Thank you. Okay. That takes us back to, I guess, to the beginning. We've got public input. We've had a lot of our input on it, and I'm not sure where the Planning Commission wants to go with this at this point. I know that one possible alternative would be to have what the Page 76 March 2, 2009 doctor feels is the best ordinance he can write for this county, and then have county staff and the county attorney provide the pros and cons -- or actually their concerns or -- and the business concerns over that issue, and we heard the perfect example: The fencing around athletic fields. If the doctor says that's not prohibitive but Mr. Klatzkow says and the staff says that's something the community wants, then the doctor and the staff and the legal department can work out a way to make that happen, not sitting here today, but make it happen before it comes to us, because I heard today, well, maybe we can work that out. Well, that's the kind of stuff I would have expected to have been done before it got to us today. Now, I heard Catherine say there might be a time frame or someone say there's a time frame concern. They have to get done with this in a certain amount of time. I'm not sure if that's true or not, because I understand now before the courts heard on that issue, there was an out-of-court settlement. Does the out-of-court settlement, or whatever, provide us with a time to do this better? MR. KLATZKOW: Mr. Chairman, I think we're okay. I mean, we have our expert who said these things normally take a year. We're not getting any pressure from the Court. If we start getting pressure, I can get an affidavit saying, look, I work all over the country . These processes usually take a year, and I'm sure we're fine. I mean, the Court wants us to get it right. We want to get it right. There's no point rushing this. CHAIRMAN STRAIN: So this back and forth between staff and the doctor or the legal department and the doctor over what we really want and how do we get there when he's saying, maybe this isn't the best way to look at it, but then after further discussion we find out, well, you know, maybe we could make this work. Well, that should have happened before today, and all I'm suggesting is, I don't know what kind of direction you want out of this Page 77 March 2, 2009 board, but one might be simply start with the basis the doctor feels is the most protective, and then if we feel that it isn't -- doesn't meet the intent of this community, start looking for those areas where you and the doctor can work together to put the language in that fits better for this community. That might be a solution to the problem. Susan, then Mr. Murray. MS. ISTENES: Thank you. I had a question of Jeff. Does this kind of pending status that it sounds like the Planning Commission wants to head towards while we try to work out some of these issues, does that put our code at risk for any future legal challenges or open the door for -- you know, in that interim time frame? I'm just concerned that we're in kind of this -- MR. KLATZKOW: Well, look. We've had our ordinance declared unconstitutional, okay, so we want to get it fixed as soon as we can get it fixed, but that doesn't mean we just rush and put a hodge-podge together that nobody's happy with. I mean, my preference would have been that this would have been done months ago, but I understand the process requires more time. So yes, there is a -- the longer we take this out, the longer -- the greater the risk is, but there's also a risk in not getting it right. MS. ISTENES: I understand, and I don't think -- first of all, I want to thank Catherine and Diana and the gentlemen from the sign companies. I know they've worked really hard on this. And Doctor, you've given us some great advice and you've been -- I mean, you've taught us a lot, and I really appreciate the opportunity to work with you. I think what we've got here is -- addresses the direction that the Board of County Commissioners gave us with a few areas where we disagree. I think what might help you, and you give me feedback, and I may be sorry I'm saying this because it's going to be a lot of work, but it really is what we do when we do our other LDC amendments is Page 78 March 2, 2009 -- and based on me listening to your comments earlier, I don't think you know the implications of all the changes in the document, and I think we -- CHAIRMAN STRAIN: I think you're right. MS. ISTENES: -- probably need to define those for you. So in other words, here's what we're changing, here's why we're changing, and here's the result. Because some of the results could be unintended or different from simply just changing the ordinance to make it more constitutional without our intent. So I think we all need -- I think we understand it as staff. I think we need to convey that to you so you have a full scope and breadth of what we're changing and what the implications are, and also that you understand staffs reasonings. Like, for example, where we disagree with the doctor, we could spell that out for you in our reasonings, and then we could work together for some alternative language. I think we always intended to do that, so I'm not too worried about that, it's just-- time kind of caught up with us and we were feeling the pressure from the time commitment we made to the courts. And we can -- so we can do that and make sure you understand that as well. I think what concerns me is -- and I don't know how to resolve this -- is we can spend all this time and do more work, which we have and that we're happy to do, but at the end of the day we still need your direction. Now, I think the work I suggested will help you understand the changes a lot better, but I still think that may cause -- and I think that's what Jeffwas pointing out -- we want to, quote, do it right, and that may help the folks in the sign business as well understand the changes. CHAIRMAN STRAIN: Mr. Murray. MS. ISTENES: Does that help? COMMISSIONER MURRAY: I think you're right on the track now between what the chairman has stated and what I think. And I would ask one more favor, if the recommendations by the professor Page 79 March 2, 2009 would be even notated by priority; in other words, the level of risk that, although you may disagree or he may disagree with your findings and desires, that level will help us in our guidance, but only -- frankly, the only way that I think I could be effective in this would be by being able to see those conditions, your recommendations clear out, his recommendations clear out, and then we can make a true policy decision knowing full well any risk that we're going into. MS. ISTENES: I'm optimistic we're going to be able to whittle them down. We may end up with one or two that we just can't resolve, so -- COMMISSIONER MURRAY: That's okay. MS. ISTENES: And we'll make that clear. COMMISSIONER MURRAY: That's okay. MS. ISTENES: And Dr. Mandelker can certainly let us know if the language he's modifying he feels there's some risk and we could-- we could certainly indicate that, okay. CHAIRMAN STRAIN: Well, I guess the next question is, if you could corne back with that more detailed for us. And I like your idea, Susan, to explain what some of this means in terms to what we're used to. What time frame are we talking about? COMMISSIONER KOLFLAT: Mark? CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLA T: Yes. Does this include a rewrite of the one issue of -- CHAIRMAN STRAIN: Get closer. COMMISSIONER KOLFLAT: -- the one issue of the draft, where we're talking about using the drafts we have? CHAIRMAN STRAIN: Well, no. I think we'd get a new document. COMMISSIONER KOLFLAT: New document. CHAIRMAN STRAIN: But we'll firm that up as we -- Page 80 March 2, 2009 COMMISSIONER KOLFLAT: So your request for the time taken includes the new document? CHAIRMAN STRAIN: Yes. MR. SCHMITT: Just to clarify, because I'm going back and looking at my notes. This was back in June when we went to the board. It was our request to the Board of County Commissioners for our Land Development Code Special Cycle 2008, Cycle 2A, to address -- well, let me read my writing here -- to address urgent amendment to the Land Development Code in response to the opinion and order of the U.S. District Court filed February 13, 2008, which declared sections of the Collier County sign code unconstitutional. At that time we still hadn't settled. And this was the request that the board approve a Land Development Code, and we were -- specifically Sections 5.06.01, 5.06.05, 5.06.06, and 5.06.07. So I stand corrected. It was four sections of the sign code. The goal to review the code in its entirety to ensure it conforms with the first amendment of the United States Constitution. So what started out as four sections of the code that were deemed to have constitutional issues, it also was of our consultant to look throughout the code to determine what other areas. And this thing certainly has morphed into much more than the four areas. Now, the -- the time limit became moot because there was an out-of-court settlement, but at one time we were on a six-month window that this had to get to the board, and we committed that we would make those corrections. And that -- and that amendment cycle, as approved by the board, was to have this to the board in December. We were not even anywhere near ready in December. But, again, that became a moot point because -- because of the settlement. And now what you're saying certainly are -- is -- are more changes that have been made that have been deemed where we have some constitutional issues, but we never thought we would be opening the door as much as we did and as we are right now. Page 81 March 2, 2009 And it does seem to beg the question, is, well if we're going to do that, why not just look at the whole sign code. And I got to tell you, that would take probably at least -- yeah, at least a year, year and a half. We would have to -- we'd probably go -- we'd have -- well, probably. We would go back to the board, ask the board to give us direction to form some kind of a horizon committee or some other type of committee to deal with this as we did with the RLSA or other issues of great concern to the community. Those who were here -- I was not -- but those who were here when we changed the code in 2001, it was a pretty significant emotional event for this county. One of the former commissioners, at that time commissioner, Jim Carter, I believe, headed the horizon committee or was the commissioner in charge, and they had a committee formed that met several times over a year as they developed this last code that went into effect in 2001. So -- CHAIRMAN STRAIN: Well-- and part of their direction, Joe, was to review the sign ordinance in its entirety for constitutional issues. The -- it would seem to me, when you go back to the board with this after we get done with it or whatever, first thing they're going to say is -- turn to Jeff or turn to the doctor and say, does this meet the constitutional issues? And if you're not in consensus that it does, you better have a really good explanation as to why it doesn't. That's simply the format I'm suggesting that we proceed with here, is put the document together that meets the constitutionality, and if it -- where you differ and the burn -- the bottom line when you bum it all down, we still differ with the doctor here, Jeffprovides his reasoning, the staff provides theirs, and if the risk is low, then our direction might be fine, accept it and send it on to the board that way. We're not even close to that with this document in front of us here today, at least understanding it in this manner. At least me. I can't speak for the rest of the board. COMMISSIONER MURRAY: I agree with you. Page 82 March 2, 2009 CHAIRMAN STRAIN: But I certainly am having a hard time getting to where you just said we're all supposed to get to. And all I'm suggesting is, maybe we ought to go back to the drawing board, get further consensus, get the things that we -- the couple of small items we've flushed out there today, signage on athletic fields, the time that political signs can be up, how they're affected by this, if they're blown down, do they have to corne down, or how are they just the only ones that have got to corne down in a hurricane and not the others? The solution may be, we look for a building permit. Those are the kind of things I would have hoped would have been taken care of today, and when we got this we were just told where the few differences were from a constitutionality viewpoint, from a legal concern and from the community's concern, and then we make a direction and provide a decision to you guys and take it -- it goes to the board. MR. SCHMITT: Again, that was -- some of those issues are certainly the opinion of the professor, and it's not that we're disputing that. But I would note, and I think professor -- I'm going to take your paper here. CHAIRMAN STRAIN: But is it -- his opinion has been helpful because he says that we can work out some of these things like the political signs and how often they've got to corne up or corne down. We simply base them on a permit. That changes dramatically someone's -- how those will be handled. They go to a temporary sign or something like that. MR. SCHMITT: Yes. CHAIRMAN STRAIN: Those are good responses. MR. SCHMITT: And then in the one area, in the one bullet there where he has -- the second one, address -- address numbers, address on -- addresses on signs. Again, that -- it is content based and it's believing that it's content based. But this community and this board directed us, probably three years ago now, that all signs have Page 83 March 2, 2009 addresses because people driving down the road have difficulty -- CHAIRMAN STRAIN: Right. MR. SCHMITT: -- locating addresses on buildings, and our signs now have addresses and they have to be of a certain size. Again, that -- that is an opinion that that's content based and that's directed, but at the same time, the community wants to have the street addresses on the sign so as you're driving down the street, Tor brought about the readability of signs. And we're going, well, is that really content based? It's more of a health, safety, welfare issue. You're driving down the street and you want to know what the address of the -- where you're at. I know -- CHAIRMAN STRAIN: Joe, he's not saying do away with it. He's saying, put it in a better, more applicable section of the code. That doesn't -- health, safety and welfare can go in numbers of places in the code. You've -- speaking of health, safety -- fire code drives people nuts with -- MR. SCHMITT: I understand, but the intent here was not to do a comprehensive rewrite of the code. The intent was to try and meet the requirements of the litigation. CHAIRMAN STRAIN: But I think it -- to meet the requirements of the litigation, he's suggesting, move this out of the sign section. That does meet the requirements of the litigation -- MR. SCHMITT: Right. CHAIRMAN STRAIN: -- and it does fix the problem. I mean, it's not that big. Mr. Vigliotti and Ms. Caron both have comments. MR. SCHMITT: We no longer have the requirement for the numbers on signs, street numbers. CHAIRMAN STRAIN: No. It's saying, move them to another section of the code and let them be required there. It's not-- MR. SCHMITT: Again, we would have to amend that section of the code. If we took it out of this, ~e would have to amend that Page 84 March 2, 2009 section of the code. This was a special cycle to deal only with the sign code. CHAIRMAN STRAIN: Okay. But at the same time, in cleaning up the sign code, you have to fix other sections of the code that impact it. It's like that brick in the house that the doctor used as an example. You start pulling out the bricks under the foundation, the whole house collapses, so you're forced to fix other areas. Ms. Caron? COMMISSIONER CARON: Yeah. And it's my understanding, if something like addresses on signs are applied universally, then we don't have an issue. DR. MANDELKER: In the codes, you mean? COMMISSIONER CARON: No, no, no. Ifwe have -- Joe just said that we require address numbers on all signs. MR. SCHMITT: Street addresses, yes. DR. MANDELKER: Right, right. COMMISSIONER CARON: Street addresses. So if it's on all signs anyway, that's not really an issue, is it, because we apply it universally? DR. MANDELKER: Right. What I'm saying is that when you put addresses on the street signs, that's not a sign. When you put addresses on signs, it becomes a free-speech problem. But all I'm saying is, okay, you've got a code that's got -- dealing with addresses, put the addresses there. CHAIRMAN STRAIN: Put them in the address section of the code. COMMISSIONER CARON: Absolutely. CHAIRMAN STRAIN: Anyway, Joe, I understand what you're saying, and I just hope that -- I know you guys carne in here wanting direction. We've been trying now to provide it. I don't know if it's what you were looking for or it's enough. What do you all feel is our next move on this process that would Page 85 March 2, 2009 benefit you? Because right now I think to benefit you best this board needs to understand what it is you're trying to do, and we're not there. MR. SCHMITT: Well, the original document provided -- the original that was the packet -- and, Susan, do you have your book? That was the book that we sent you originally -- had the original sign code and had the rewritten sign code in there, complete rewritten without the strikethrough and underlines. Normally this board, as the Board of County Commissioners, prefers to see the strikethrough and underline as well so they can figure out where the changes were made, and we provided the strikethrough and underline as well. So what you have is the original code, the rewritten code -- MS. FABACHER: Clean copy. MR. SCHMITT: -- clean copy completely rewritten. MS. F ABACHER: But excuse me. It doesn't -- MR. SCHMITT: I know it, but then we went back and added some things back in. MS. F ABACHER: Right. MR. SCHMITT: But what our intent today was, to review the version that we sent you and decide whether we move on with that, or do we just start all over again? I mean, it appears I'm -- CHAIRMAN STRAIN: No. I think you've got a good start, but we're finding out -- and let me repeat this. The doctor said we're still tinkering. We need three to four more months to complete it. It would be helpful to know that the differences that we just heard today are worked out and what it boils down to is the handful that aren't. I think Susan's recommendation is perfect, that this board be told the implications of some of these policies because of the different nature in which they're written. MR. SCHMITT: And on that course, to get the implications, that normally involves us convening some kind of a working group with Mike or other members of the industry or even the impacted Page 86 March 2, 2009 businesses. MS. F ABACHER: Legal. No, I think we're talking legal. MR. SCHMITT: Oh, you're talking legal. MS. F ABACHER: We're talking legal risks. MR. SCHMITT: Go ahead. CHAIRMAN STRAIN: Well, I think if you were to ask the gentlemen to come in after putting another document together and expressing any -- anything you can get from them and from anybody else to get it resolved before it comes here is the best -- I think the best way to do it, because if we can -- if we walk through this document you passed out today, I guarantee you it will be -- we'll still walk through it again whether it's two, three, four, five weeks from now. Susan? MS. ISTENES: I think -- I think I understand. And I'm not worried about this document changing substantially because I think it's a darn good document. We've got the punch list that we need to work on, and we will get that resolved, and if we don't, we will have it whittled down to one or two that we can have a discussion with you about. But you will -- we will outline the implications of all the changes, know the reasons for the change, we'll do it -- try to do it in a matrix form. I may ask you for your advice on what type of format you think will work best for the board. CHAIRMAN STRAIN: Okay. MS. ISTENES: Time frame? I'm not really sure. I guess I would -- I mean, I'm going to say at least a month to do all that and corne back to you. COMMISSIONER MURRAY: Give yourself more time. MS. ISTENES: Yes. You know, we have to work around the doctor's schedule and our own and the attorney's. CHAIRMAN STRAIN: What I'd like to do -- Joe, if that's the case, could you corne to us with some time frames at our meeting on -- Page 87 March 2, 2009 you, or whoever on staff, Ray, with some open dates for this room in say, April or May, whatever date you guys decide is a good date to use? MR. SCHMITT: Certainly. CHAIRMAN STRAIN: And let's just set the date so that if we have an issue, we can tell the settlement-agreement-issue people we've got a date. Go ahead. MR. KLATZKOW: Yeah. I just had my staff review the court documents. We have no court deadline, so that's out of it. What we have right now is just an unconstitutional ordinance. What I'll do is I'll direct Mr. Wright, who works with code enforcement, that we will not enforce any of the code enforcement violations where we believe it's unconstitutional, and that will save on the litigation. CHAIRMAN STRAIN: Okay. Mr. Kolflat? COMMISSIONER KOLFLAT: Yes. There was testimony given, Joe, that the changes that are occurring in this document are turning the document into more of a listing of what is permissible as far as signage rather than what is not permissible; in other words, it has been one that tells you permissible, what you can put up as far as a sign. But now, by elimination of certain issues, certain signs, it's prohibiting the use of those signs by its omission. Will the work that you're going to do in revising the document address that issue or that question? MR. SCHMITT: Well, as Susan pointed out, our LDC is pretty much a document that is written. It tells you what to do. It's not a document that tells you what you can't do. Unfortunately -- and I say -- use the word unfortunate. In the sign code, we did have a list of -- a list of things that were not allowed. And I think -- if I recall, that was -- that was recommended to be removed. And I think what Mike was saying is, he'd prefer to have that in because if -- I guess the problem there is, if it's not in the code and it Page 88 March 2, 2009 says you can't do it, I believe what Mike stressed was, then it wouldn't be allowed. And I don't know if that really is the case. I think that was your concern. COMMISSIONER KOLFLA T: Yes, that's my concern. MR. SCHMITT: And that's Tor's as well. I mean -- but I think that was the issue. I don't know -- let me ask Susan again about the code because it's -- CHAIRMAN STRAIN: Well, Ms. Caron's got something she might help with this. COMMISSIONER CARON: Well, it's been my understanding right along that our code has always been, if it's permitted in the code, it's permitted. MR. SCHMITT: Right. COMMISSIONER CARON: If it's not in the code-- MR. SCHMITT: You can't do it. COMMISSIONER CARON: -- it's not permitted. MR. SCHMITT: That's correct. COMMISSIONER CARON: So this is the way this code is being written now -- MR. SCHMITT: Right. COMMISSIONER CARON: -- the way it should have been written all along. MR. SCHMITT: But Mike -- COMMISSIONER CARON: I understand that he has some questions about it because he's comfortable with the way it's been. MR. SCHMITT: He is -- as a practitioner, he wants to know exactly what he can and cannot do. COMMISSIONER CARON: And that's valid for him to question that in front of the board; however, our code has always been, and it should remain, if it's permitted, it's permitted. If it's not in there as saying you can do it, you cannot do it. MR. SCHMITT: That's correct. Page 89 March 2, 2009 CHAIRMAN STRAIN: Mike, did you want to offer anything? MR. BOYD: Well, I'll work with whatever code we have. My only concern was it was changing drastically in how we would use it in our everyday business. CHAIRMAN STRAIN: Okay. MR. BOYD: That was my only concern. CHAIRMAN STRAIN: Thank you, sir. MR. SCHMITT: And we always can provide guidance to the industry on what cannot be done. We always do that. CHAIRMAN STRAIN: But Joe, if we move forward-- MR. SCHMITT: Yeah. CHAIRMAN STRAIN: -- with the direction provided so far, which is some basic -- I think the existing document is the beginning. I would suggest, as we had talked earlier, we finish the strikethrough version but also offer a clean version, which you did, but the second time around you didn't, the latest one. And, again, I'd like to stress to staff that the next time this is scheduled, don't give us any more changes. Don't schedule it until you're sure we can be done with the changes. MR. SCHMITT: As clarification, we will provide you -- you already have the original. We'll provide the original on a tab, we'll provide a clean copy, which is the -- no strikethrough and underline, just a clean copy, then for clarification as to what is changed, we'll provide the strikethrough and underline, just as we did in the original document. Well, the original document we provided the clean copy, and I told Catherine I wanted a strikethrough and underline because our board wants that as well. It helps them to understand what is changing and it makes it much easier for them to follow. We'll provide that as well. And Jeff is exactly right, as -- unfortunately as this -- well, again, as this thing went through the months, the settlement agreement negated the expediency because it was settled and there was no Page 90 March 2, 2009 commitment then to a judge, but at one time there was a commitment by the county, we would solve this. And I think Jeffs proposal is absolutely right on the mark, is that we -- we're careful as to what we're going to enforce, we'll corne back to you, schedule a date, and we'll -- I think we do have some things that we'll discuss with our consultant and we'll resolve those. CHAIRMAN STRAIN: Okay. Does that work for everybody on the Planning Commission? Anybody? COMMISSIONER MURRAY: Sounds good. CHAIRMAN STRAIN: Okay. With that then, I would assume we don't need a meeting tomorrow and that we can adjourn today's meeting and wait to be renoticed for a time and place, and Thursday at our regular meeting I'd like to work out with staff what those dates could possibly be in either April or May. And with that, is there any other business to be conducted today from anybody? (No response.) CHAIRMAN STRAIN: Okay. I'll look for a motion to adjourn. COMMISSIONER VIGLIOTTI: So moved. CHAIRMAN STRAIN: Made by Mr. Vigliotti. Seconded by? COMMISSIONER KOLFLAT: Here. CHAIRMAN STRAIN: Mr. Kolflat. All in favor, signify by saying aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER CARON: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Motion carries, 6-0. MR. SCHMITT: Thank you. MS. F ABACHER: Thank you, Commissioners. Page 91 March 2, 2009 ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 11 :31 a.m. COLLIER COUNTY PLANNING COMMISSION MARK STRAIN, Chairman TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICES, INC., BY CHERIE' NOTTINGHAM and TERRI LEWIS. Page 92