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BCC Minutes 08/07/1991 S Nap]es, Florida, August 7, lggl LET IT BE REMEMBERED, that the Board of County Commissioners in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the Governing board(s) of such special districts as have been created according to law and having conducted business herein, met on th~s date at 6:30 P.M. ~n SPECIAL SESSION fn Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Patricia Anne Goodnight VICE-CHAIRMAN: Michael J. Volpe Richard S. Shanahan Max A. Hasse, Jr. Burr L. Saunders ALSO PRESENT: Ellie Hoffman, Annette Guevin, and Wanda Arrighi, Deputy Clerks; Neil Dorr~ll, County Manage~; Tom Oll~ff, Assistant to the County Manager; Ken Cuyler, County Attorney; Ramiro Manalich and Dennis Cronin, Assistant County Attorneys; Frank Brutt, CommunJty Development Administrator; David Pettrow, Development Services Director; Wayne Arnold, Ron Lee, Ron Nino, and ErJc Young, Planners; Sue Filson, Administrative Assistant to the Board; and Deputy Byron Tomlinson, Sher~ff's Office. Page August 7, 1991 Ira PETITION Z0-91-5, GLEN SIMPSON OF WILKISON & ASSOCIATES, REPRESENTING COLLIER ENTERFRISES REQUESTING AN AMENDMENT TO THE COLLIER COUNTY ZONING ORDINANCE TO ALLOW EARTH MINING AS A PROVISIONAL USE IN THE A-! ZONING DISTRICT - SECOND PUBLIC HEARING TO BE HELD 8/21/91 Legal notice having been pub]/shed in the Naples Daily News on July 30, 1991, as evidenced by Affidavit of Publication filed with the Clerk, public hearing was opened to con~ide~' Petition Z0-91-5, filed by Glen Simpson of Wilktson & Associates, representing Collier Enterprises, requesting an amendment to the Collier County Zoning Ordinance 82-2, to allow earth mining as a provisional use in the A-1 Zoning District. Planner Young stated that this is the first public hearing with regard to Petition ZO-91-5, noting that the Petitioner is requesting an amendment to the Zoning Ordinance to allow earth mining as a provi- sional use in the A-1 Zoning District. He indicated that earth mining is currently allowed as a provisional use in the A-2 District. Mr. Young explained that due to the lack of being able to obtain permits in the A-1 District, several'agricultural projects have been stymied. He stated that the purpose of this request is to allow those projects to proceed in the A-1 District but they wl]l be required to obtain a Provisional Use. Mr. Young reported that on June 20, 199], the Collier County Planning Commission heard this petit/on and recommended approval with a vote of 7/0. Planner Young advised that staff is requesting that two additional criteria be added to the regular provisional use review process for A-l: that excavation is inc/dental to the agricultural development of the property; and that the excavated area is within a surface water nanagement system that has a permit from the South Florida Water Management District for agricultural use. In response to Commissioner Hasse, Mr. Young remarked that without this provision in the A-1District~ anyone desiring to construct an orange grove in the A-1 zone would have to retain or use all the fill Page 2 August 7, 1991 on site. He indicated that normally 10-1§% of the fill is used on site fgr construction purposes, but there is a lot of fill that is not needed and is hauled off the site. Commissioner Hawse questioned whether the fill to be removed from the site is assessed by cubic yard. Community Development Services Administrator Brutt replied that Transportation Services. There were no speakers. Co~tssioner Shanahah moved, seconded by Commissioner Hasse and carried unanimously, to close the public hearing. Planner Young announced that the second public hearing with respect to this ordinance amendment will be held on August 2~, lg91. Item ~3B ORDINANCE 91-70, RE HISTORICAL/ARCHAEOLOGICAL PRESERVATION - ADOPTED AS AMENDED Legal notice having been published in the Naples Daily News on June 12, 1991, as evidenced by Affidavit of Publicat]on filed with the Clerk, public hearing was continued from June 18, 1991, to consider a Historical and Archaeological Preservation Ordinance. Planner Lee recalled that the Board of County Commissioners held the first public hearing with regard to the proposed ordinance on June 5, 1991 and directed Staff to host a public workshop which was held on June 24, 1991. He indicated that several changes have been made and incorporated into the ordinance as a result of that workshop. Mr. Lee highlighted the changes as follows: new definition of "Artifact"; revision to the composition of the Preservation Board; requirements regarding attendance of Preservation Board members; DRI's to be a separate process; grandlathering clause for projects that are currently in the review process; revision to survey and assessment components; deletion of the transfer of development rights; and dele- tion of the Staff Archaeologist. He noted that all professional archaeological services will now be provided by a Certified Page 3 August 7, 1991 Archaeologist to be contracted by the property owner. Planner Lee afftrmed that the proposed ordinance was presented to the Collier County Planning Commission on July 18, 1991 and they recommended that only Sections 1-5 of the ordinance be adopted and after completion of the Map of Areas of Historical/Archaeological Probabt]tty, that the remainder of the ordinance be adopted. He indi- cated that the Planning Commission further suggested changes as high- lighted ~n "bold" in the proposed ordinance. He stated that staff concurs with the changes as highlighted, but recommends that Sections 8-18 also be adopted. He called attention to Sections 6 and 7 of the ordinance, noting that the language with regard to the effective date has been changed to ref]ect the date of completion of the Map of Areas of Historical/Archaeological Probability. Mr. Lee remarked that the Planning Commission reached a consensus that all County projects should be included in the definition of "County projects" Mr. Lee detailed four staff changes to the ordinance: Page 12, Paragraph "i", add "sole" before "surviving"; Page 19, last paragraph to read: "In addition, the Importance of historical/archaeological resources to local, county, and state history .... "; Page 28, b (:) to read: "Project Review Staff shall cordone off the Immediate area and contact the Community Development Services Administrator or his designee"; Page 28, b (2) to read: "The identified area shall be further cordoned off..."; Page 29, a., last Line to read: "order to reflect the additional areas"; Page 29, b, change "sites" to "areas"; Pages 29, (4), second Line to read: ""areas deemed to have histor~cal/archaeological significance" The following persons spoke in favor of the proposed ordinance: Mr. Chuck Schmitt Mr. John Thompson Ms. Maria Stone Lauren Archibald Eileen Arsenault Mr. Wayne House Mr. George Loer Dr. William Marquardt Mr. Arthur Lee MS. Gloria SaJoo Those speaking in favor of the ordinance, cited the following: the ordinance is a good one, not overly restrictive, and allows admi- August 7, 1991 nistrative relief; the ordinance will benefit the chi]dren of Collier County by allowing them to appreciate the historical past of the County; State and Federal guidelines do not address local needs, therefore, the ordinance should be adopted; a staff person should administer the ordinance; ordinance should be adopted so that there will not be a lengthy trial process with DCA; roads should be included within the definition of County projects; Historical sites are popular among the tourists and seasonal residents and could add dollars to the economy; the proposed ordinance offers incentives in the development stage as well as in the sales stage; Collier County has a moral obli- gation to the public by using the historical resources; the public needs to be educated in order to protect Collier County's heritage; these sites can be incorporated into various themes; attempts should be made with regard to the implementation process relating to archaeological training; and the Historical/Archaeological Preservation Board should be appointed as soon as possible and the maps should be completed expeditiously. Attorney Bruce Anderson voiced concerns with regard to what the ordinance does not say. He indicated that previously approved DRI's have already gone through the process to comply with State require- ments to obtain the survey and it should be made clear that they are not required to go through the process again. Planner Lee pointed out that Page 18, Section "K" addresses pre- viously completed survey and assessments. He advise that if a DRI has completed a survey and assessment in accordance with the components outlined in the ordinance, they would not be required to have an addi- tional survey and assessment. County Attorney Cuyler suggested that the following additional language be included in the last sentence of "K": ..."may, at the discretion of the property owner, be utilized to meet the requirements of this Section (Six)." Attorney Dudley Goodlette stated that his concern relates to Section Eight, and suggested that this section be deferred in conjunc- Page 5 August 7, 1991 tion with Sections Six and Seven. He reported that Section Eight spe- cifically refers to designation of sites. He explained that he feels that the County should focus on what the State has done with regard to the area of Archaeological Preservation. He read portions of Section 267.11F.S. relating to designation of Archaeological Sites which states that "no site or grouping of sites shall be so designated without the express written consent of the private owner thereof." He suggested that a similar provision be contained ]n the proposed ordi- nance. He indicated that this would provide a safety net for the property owner and if he will not consent, the emlnent domain pro- ceedIngs could begin. County Attorney Cuyler stated that he disagrees that there is a taking issue, solely with the designation of property, He advised that the taking issue may arise after an applicant has applied for a permit and they have been denied, but this would need to be addressed on a case-by-case basis. Attorney Goodlette called attention to the Ordinance, Page 7, Section Four, "b", which states: "... historical, cultural and archaeological resources in Co]lief County..." and suggested that "cultural" be deleted. Planner Lee indicated that he has no problem with deleting "cultural" · '"Deputy Clerk Guevtn replaced Deputy Clerk Hoffman at this time$'' Donald Myers inquired If there is only one roadway, will this ordinance keep him from getting to his property, to which Mr. Lee indicated in the negative. Oo~,.isstoner Saunders moved, seconded by Commissioner Shanahah and carried unanim~usly, to close the public hearing. Commissioner Volpe referred to the publication of the agenda of the Preservation Board which is proposed to be published on a Sunday before the meeting. He suggested the agenda be published three days in advance of a meeting, rather than on Sunday. County Attorney Cuyler indicated Sunday was chosen as the day the newspaper gets the most readership. o? Pag~ 6 August 7~ 1991 Commissioner Saunders mentioned under the deffnttlon of County projects, the ordinance states County projects shall include the construction of any government buildings. He indicated the language needs clarification. He asserted he would like to ensure that at least the right-of-way for County road projects is inspected for archaeological sites and that the County would have to act appropriately to deal with those sites. He said it is only fair if property owners are being required to comply with certain regulations, the County should also. In response to Mr0 Lee, Commissioner Saunders replied Jt should include all County utility projects. Commissioner Goodnight fluggested the language ~ead, "County pro- 3ects shall include construction of any government projects", to which Commissioner Saunders agreed. Co~ss~one~ Saunders moved, seconded by Commissioner Hasse, to approve the ordinance as modified by Mr. Lee as well as the chan~e in ~he definition of County projects. County Manager Dotrill disagreed with the proposed change in the definition of County projects. He said the County ~s holding itself to the same standard with respect to site development as ~s done to any other developer. He reminded the Board that the five-year Capita] Improvement Element has 350,000 lineal feet of road related work alone. He stated 90% of that work is within established, highly disturbed, existing rights-of-way that among other things include sub- surface power, cable and telephone lines. He stated for the vast majority of those areas, an archaeological survey would not be a p~u- dent use of taxpayer money. As a compromise, he offered where the County is forging into areas where no existing public right-of-way has been acquired, i.e., the Livingston Road project, an appropriate archaeological survey should be conducted, Mr. Lee suggested the County may request a waiver from the survey assessment in previously disturbed areas like all other projects. Commissioner Shanahan agreed with County Manager Dotrill and 08' Page 7 August 7, 1991 suggested that the County be allowed to move ahead with projects on the drawing board that are extremely necessary in the community. Commissioner Goodnight concurred with Mr. Lee's comments that the County has the same opportunity to apply for a waiver of the require- ments as does the private landowner. Commissioner Saunders stated archaeological sites have a certain significant value to the community, the same as endangered species. County Manager Dorrill indicated this issue is clearly a policy decision of the Board. Acknowledging the obligation of the County in those instances of clear archaeological significance, he questioned however, the use of money for additional urban section type improve- ments within previously disturbed rights-of-way. Upon call for the question, the motion carried 4/1 (Commissioner Shanahah opposed), thereby adopting the Ordinance as numbered and titled below and entered into Ordinance Book $4§: ORDINANCE 91-70 AN ORDINANCE ESTABLISHING REGULATIONS FOR THE USE, PROTECTION AND PRESERVATION OF HISTORICAL AND ARCHAEOLOGICAL SITES, DISTRICTS, STRUCTURES, BUILDINGS AND PROPERTIES; PROVIDING FOR INTENT AND FINDINGS; SHORT TITLE AND CITATION; DEFINITIONS; HISTORICAL/ARCHAEOLOGICAL PRESERVATION BOARD CREATED AND ESTABLISHED; PROVIDING FOR AREAS OF HISTORIC/ARCHAEOLOGICAL PROBABILITY; APPLICABILITY DURING DEVELOPMENT REVIEW PROCESS, COUNTY PROJECTS, AGRICULTURE, WAIVER REQUESTS; PROVIDING HISTORICAL/ARCHAEOLOGICAL SURVEY AND ASSESSMENT COMPONENTS; DESIGNATION OF HISTORICAL/ARCHAEOLOGICAL SITES, STRUCTURES, DISTRICTS, BUILDINGS AND PROPERTIES; ISSUANCE OF CERTIFICATES OF APPROPRIATENESS; INCENTIVES; DISCOVERY OR ACCIDENTAL DISTURBANCE OF HISTORICAL OR ARCHAEOLOGICAL SITES AND PROPERTIES; WILLFUL DISTURBANCE OF HISTORICAL/ARCHAEOLOGICALLY SIGNIFICANT SITES, DISTRICTS, STRUCTURES, BUILDINGS, AND PROPERTIES; WILLFUL DISTURBANCE OF AN UNMARKED BURIAL OR BURIAL SITE; APPEALS; JURISDICTION; PENALTIES; PROVIDING FOR CONFLICT AND SEVERABILITY; AND EFFECTIVE DATE. Recessed: 8:15 P.M. - Reconvened: 8:20 P.M. Item COLLIER COUNTY SEXUALLY ORIENTED BUSINESSES LOCATION AND REGULATION ORDINANCE - SECOND PUBLIC.HEARING TO BE HELD ON AUGUST 2!, 1991 Legal notice having been published in the Nap]es Daily News on July 30, 1991, as evidenced by Affidavit of Publication filed with the Clerk, public hearing was opened to consider the Col]let County Sexually Oriented Businesses Location and Regulation Ordinance. Page August 7, 1991 Commissioner Goodnight presented a letter from the Mayor of the City of Naples in support of the proposed ordinance and notifying the Board of the unavailability of City Council members at the County's two public hearings due to a conflict in scheduling. (Filed with the Clerk to the Board.) Assistant County Attorney Ramfro Manalich presented the proposed Collier County Sexually Oriented Businesses Location and Regulation Ordinance. He said the ordinance seeks to strike a reasonable and legally defensible balance between the First Amendment protections, to the limited extent that they exist, afforded to non-obscene sexually oriented materials and the powers of local government to protect the public health, we]fare and safety from the negative secondary affects that studies have shown these businesses cause on surrounding neigh- borhoods. He indicated the proposal will accomplish that through locatlonal and licensing restrictions. He remarked this topic ]s one with considerable difference in opinion within the community as ~.'. as In the Courts, however, the proper and legal right of local govern- ments to enact this type of ordinance is firmly established Jn the ~.: ~. United States Supreme Court. i~?ii~' Assistant County Attorney Manalich presented the distinction bet- ~!~,i~ ween this ordinance and the laws of obscenity. He explained obscenity laws, as contained in Chapter 847 of the Florida Statutes and pat- terned after the United States Supreme Court decision in Miller rs. California, are content-based laws on outlaw sexually oriented material that is determined to meet the legal test of obscenity. He said such material is illegal and prohibited in all respects. He remarked even if a business obtained a permit under this ordinance, 'it will still be subSect to prosecution by the State for violations of the obscenity law if it has items of material that meet that test. He indicated nothing in this ordinance will interfere in the prosecution of violations of the obscenity law, adding there are findings within the ordinance which address the fact that this ordinance In no way condones or legalizes obscenity and that Collier County expects its Page 9 August 7, 1991 law enforcement officials to continue enforcing the obscenity laws. Assistant County Attorney Manal~ch referred to material he pro- vlded the Board as four principle cases from the United States Supreme Court as well as studies from approximately eight Jurisdictions regarding the effects these types of businesses have on surroundinG neighborhoods. (Copies on file with the Clerk to the Board.) He sum- marized the studies indicate that when these businesses tend to con- centrate in a community, they have a number of negative effects. He said crime increases, property values decrease, the number of tran- sients in the neighborhoods tend to ~ncrease and the real estate market tends to fluctuate a great deal as far as sales and the prices of sales. In response to Commissioner Hasse, Assistant County Attorney Manalich stated the use of 4.8~ of all commercially zoned property in the County is based on planning and analysis of the ordinance. He said the Constitution says that if dealing with material that is not obscene, but is sexgaily oriented, ]t has some degree of First Amendment free expression protection. Because of that, he said, it must be given reasonable alternative avenues of presentation or com- mun~cation. He noted a case in the Southern District of Florida indi- cated the city of Boynton Beach could go as low as 3.2§~ of the ]and area in the community to be furnished under these types of locational restrictions. He indicated based on analysis done by Planner Arno]d, the 4.8% fi~ure was arrived at by setting up distance requirements, the theory being tf these types of busgnesses are separated from, ~.e., resldenttally zoned areas by 500 feet, churches and schools by 1000 feet, and other such businesses by 1,500 feet, the effects can be minimized. He reported Planner Arnold, based on those distance separations, came up w~th 408~ of all commercially zoned property, which represents approximately 240 acres initially available, and 19 areas where ~n~t~ally such businesses can locate. He concluded by going to this amount of initially available acreage, the ordinance will meet Constitutional requirements, ]n h~s opinion. August 7, ~991 Commissioner Saunders commented much publicity regarding this pro- posed ordinance has centered around the acreage, because many people feel Collier County is opening the door to 240 acres of these types of establishments. He indicated he now understands based on the above statements that Collier County is required by law to have a reaso- nable, minimal amount of area available, to which Assistant County Attorney Manalich concurred. Commissioner Volpe questioned whether analysis was done expanding the distance requirements to 2,000 feet, to which Assistant County Attorney Manalich responded in the affirmative. He mentioned a complicating factor is the amount of residential area scattered within the County, which makes it impossible to accommodate the Constitutional requirements with 2,000 feet of separation. Commissioner Saunders asked if the separatdonal requirements are as restrictive as possible and still have an ordinance that will be upheld in federal courts? Assistant County Attorney Manalich indi- cated it is conceivable that the percentage could be altered downward slightly and still sustain challenge, however, as the number is lowered the comfort level is much more reduced. Planner Arnold explained he initially looked at various distance separation requirements, starting with adJacency to residentia]]y zoned property. He said the pattern of existing commercial zoning in Collier County negates these types of businesses in many areas, because they are Immediately adjacent to res~dentia]]y zoned areas. He indicated there may be flexibility with regard to the distance of these businesses from each other, depending on future rezoning. He informed another complicating factor is based on anticipated changes in the Land Development Code with regard to a few commercial zoning districts which may no longer be in existence. He said some C-5 pro- perties may be changed to C-4 zoning and others to industrial zoning. Assistant County Attorney Mana]ich continued with regard to the four cases being included as part of the record. He referred to the Young decision of 1976, which was the first case where the Supreme Page August 7, 1991 Court upheld a location type of restriction for these types of busf- nesses. He noted the Supreme Court, in the 1986 Renton decision, indicated that the governing body of the County could rely on studies done by other 3urlsdlcttons tn formulating findings whether this type of ordinance is appropriate to eliminate negative effects of these businesses. He mentioned the case of FW/PBS, Inc. rs. City of Dallas dealt with a recent pronouncement of the Supreme Court upholding restrictions on sexually oriented hotels and motels based on times the rooms are rented, etc. He added the decision of June 21, 1991, regarding Barnes rs. Glen Theatre dealt with the subject of whether localities can ban public nudity tn establishments not serving alco- hol. He reported a Collier County ordinance is in place with regard to establishments serving alcohol, however, the Barnes decision clari- fies an area of the law, stating a State's public Indecency law could prohibit public nudity in establishments open to the public even if they do not serve alcohol. He referenced Section 22 of the proposed ordinance which addresses the simple declaration that Collier County Ordinance 77-62, which prohibits nudity at establishments serving alcoholic beverages, will be specifically applicable to anyone Getting a permit under this ordinance. He added Section 23 of the proposed ordinance declares and puts potential operatoms of businesses on notice that they may be subject to prohibition under Florida Statute 800.03 in places not serving alcoholic beverages. Commissioner Vo]pe asked if the prohibitions will be enforced by the County's Code Enforcement personnel? Attorney Manaltch referred to Section 27 which mentions that in addition to criminal penalties, nothing in thls section will be construed to prohibit the County from prosecuting a violation of this ordinance by means of a Code Enforcement Board established pursuant to Florida Statute. Mike Ryan, Captain in ~har§e nf Detectives of the $herlff's of the proposed ordinance. Beth Knake, Executive Director and Counselor with Project Help, 13' Page I 2 August 7, ~nformed the Board of her organization's four programs, two of which deal with rape cr~s~s, rape v~cttms and other victims of cr~me. She said they provide extensive, specialized counseling to survivors of rape, domestic violence, assault and battery, muggings and loved ones of murder. She noted having worked for 10 years with victims of crime, and added she is the current President of the Florida Council of Sexual Abuse Services, whose major concern is the continual per- petuation of societal myths regarding women and rape. She indicated their belief that the multi-media displays its endorsement of violence against women through the continual portrayal r~f women being violated and dehumanized. She stated media and literature have contributed to the perpetuatfon of rape myths by romantic]zing sexual violence and male dominance. She reported a growing pool of evidence indicates that Just as witnessing violence in the home may contribute to norma] adults and children ]earning and acting out violent behavior, on TV and elsewhere may contribute to the same results. She gave her support for the proposed ordinance, however, asked the Board to charge a higher fee. She stated $500 is too easy and too low, suGgestJng ~f the fee is raised, the added money could be applied t,) fundinG of agencies, such as Project Help, who deal with the victims as secondary affects of these businesses. Mark Crowley, Ep]dem~ologist with the HRS Collier County Public Health Unit, read a statement prepared under Dr. Polkowskl's approval. (Copy not provided to the Clerk to the Board.) He said the m~ss]nn of the Public Health Unit is promot~n~ and protecting good health in Collier County. He advised anonymous sex and sexual acts, wh]ch inevitably take place in some of the types of facilltles and busi- nesses referred to in the proposed o~d]nance, ~ncrease the number of cases of sexually trar, sm]tted diseases (STD's). He noted a further concern ~s the difficulty in being able to Interrupt the spread of STD's due to false or incomplete ~nformation from employees and non- employees at these types of facilities. He Gave the support of the STD Department within the Public Health Unit fom the ordinance as pro- Page 13 August 7, 199! posed. Barbara Hattemer with Morality in Media, noted the final report of the Grand Jury in 1983 recommended that Collier County pass a complete regulatory ordinance to forestall the undesirable conditions created in other cities by these establishments. She recommended as a further stipulation that the County impose a three-foot rule between an erotic dancer and patrons, which has been done successfully in Pinellas County. J Assistant County Attorney Manalfch indicated he will look into including a distance separation between patrons and employees and report back to the Board. He inquired for clarification if Ms. Hattemer is saying that distance separation of location of these busi- nesses is not enough and that the whole regulatory scheme on the operation of businesses is needed? Ms. Hattemer indicated every recommendation with regard to regula- tion will help to minimize the secondary affects of these businesses. William Kelly, retired FBI agent and current national obscenity consultant, stated in his travels around the country he has noted approximately 40 cities in four states which have no problem what- soever with obscenity in their communities, and among those are Collier County and the City of Naples. He provided the Board with statistics from various areas of the country that link the existent sexually printed materials with incidents of crime against women and children. He further mentioned after citizens in Oklahoma City demanded enforcement against sexually oriented businesses, incidents of rape decreased substantially. He concluded if the Board of County Commissioners, as community leaders, do not set standards of common decency, the pornography industry will set their own brand of com- munity standards of immorality in Collier County. Commissioner Hasse asked Mr. Kelly if in his opinion, the proposed ordinance goes far enough in restricting sexually oriented businesses in Collier County? Mr. Kelly responded this ordinance is the finest of its kind he has ever read. Page 14 August 7, ~991 Assistant County Attorney Nanallch questioned if, in Hr. Kelly's experience, when these kinds of businesses tend to concentrate, is there any relatlonsh[i~ ~'~ ~i]9hting of the urban or residential areas around them? Mr. Kelly replied a prime example ]s the Boston Combat Zone in which crime increased by several hundred percent in the course of a few years by grouping these businesses. He said the same problem occurred in Baltimore. Assistant County Attorney Manalich asked if these businesses attract a large transient population, to which Mr. Kelly replied the affirmative. Assistant County Attorney Manalich inquired if crimes are com- mitted by both those who frequent the businesses and by employees? Mr. Kelly indicated they are committed basically by those who frequent these types of businesses, however, he urged the Board to avoid encouraging the businesses from coming to Collier County as much as possible. Assistant County Attorney Mana]ich questioned if the type of pro- visions regarding the internal configuration of businesses, specifi- cally involving what at. known as peep booths, ass.~st the community in controlling the activities that occur within, to which Mr. Kelly replied in the affirmative. Dick Clemmer, immediate past President of the Naples Area Board of Realtors, called attention to decreasing property values of real estate in close proximity to sexually oriented businesses. He said a national survey indicated 80~ of realtors nationwide fee] property values decrease within one block of these businesses and in Los Angeles, 90~ of the realtors feel that property values decrease within 1,OO0 feet. He urged the Board to make the proposed ordinance as restrictive as possible. Robert Buckel communicated his concern with the language of the ordinance in terms of persons who will be regulated. He said employees and managers of these establishments should be bound by the regulations and the penalties of the ordinance a]¢~nG with I},e owner~. Page 15 August 7, 1991 He asked the Board to consider expanding the definition of persons covered by the ordinance to include employees, managers and sales people and that the penalty provisions under Sections 26 and 27 be made applicable to those persons. Assistant County Attorney Manaltch indicated he will review the ordinance to be more thorough in those regards. Alyse O'Neill stated her appreciation and thanks to Barbara Hattemer for the time and work she, as the leader of Morality in Media, has put forth on this endeavor. Sharon Crtmmel indicated her support for the proposed ordinance, especially in regards to the protection given to schools, parks and playgrounds. Sonia Coulbourn, Director of American Family Association, Naples/Golden Gate Chapter, added the support of her organization for the ordinance. Anne Balch relayed her concern with the possibility of offensive advertising and the size and height of signs. She asked that they be closely regulated. Commissioner Saunders communicated the display of any material in advertising and signage is prohibited by the proposed ordinance. Assistant County Attorney Manalich added advertising is limited to the existence of the business and its location. Deputy Clerk Arrtghi replaced Deputy Clerk Guevin at this time Ms. Margaret Lay{on stated that the County nee,Is to uphold the citizens rights, and commented that the proposed ordinance is fair for the protection of the people who do engage in this consumerism. Mr. Gerald Curtie was not aware of any of these establishments in Collier County and would like to keep it status quo. Mr. Mike Moster commented that he wants to see the integrity of the County preserved and supports all regulations proposed in the sub- Ject ordinance. Assistant County Attorney Manallch informed that the suggestion that the term "adult businesses" be changed to "sexually oriented Page AuGust 7, 1991 businesses" has been implemented. He advised that sexually oriented depicts more accurately the nature of the trade. Assistant County Attorney Manalich related he has just received a letter from the City of Naples which refers to technical matters regarding the overlap of this ordinance with them; however, he has not had the chance to review this letter completely. He advised that he will provide a complete report regarding this letter at the next meeting on this subject. Mr. Manalich cited that the Shertff's Department, the State Attorney's Office and the County Attorney's Office are still Jn discussions regarding this subject, and a report will be made available to the Commissioners regarding these meetings. He pointed out that in Section Four, paragraph b.(2), the clarification of a per- centage of 2§~ has been made at the advice of the Sheriff's Department to define the term "substantial or signif]cant portion of its business". He noted that this can have a ~everse effect by the fact that when a percentage is stated, people in this trade have a tendency to try and work around it. Commissioner Volpe questioned whether the suggestion is that the percentage should be lowered or deleted altogether? Mr. Manalich responded that he endorses following the percentage law in order to provide an enforceable ordinance, and after review]nG a case before the Federal Court of Appeals a lower percentage ]s not feasible. In.response to Commissioner Volpe's suggestion, Mr. Manalich com- mented that a review can be made regarding what percentage needs to be achieved in order to reduce the availability of the sexually oriented materials, and he will report on this at the next meetinG. Mr. Manallch noted that the Planning Commission expressed c~ncern regarding the definition of the motel/hotel establishments and their advertising of sexually oriented movies being offered which would preclude them from the ordinance. He explained ~hat Section Two,d. (1), addresses the concern by including signs being visible Page ]7 August 7, 399] from the public right-of-way as a means of advertisement. Mr. Manalich reported that council for the Sheriff suggested that a provision be made for a continuJng duty by supplementing the appll- cation, and he added that this provision has been included. Commissioner Saunders commented that with the three foot rule and the expansion of the penalties added to the ordinance, it appears to be satisfactory. Commissioner Vo]pe suggested that the hours of operation be reviewed to have these establishments closed earlier than proposed. In regards to Commissioner Volpe's assumption that sexually oriented businesses are further prohibited by the permitted uses of PUDs, County Attorney Cuyler explained that many of these businesses fall into the traditional zoning category such as book stores, video stores, etc. Comm~ssioner Saunders pointed out that PUDs do not pro- h~b~t these types of businesses. Regarding fees, Mr. Mana]ich explained that plan is to have the fee for the application the same as for the permit, and this will be reviewed further. Commissioner Hasse agreed with the changes mentioned and added that it appears to be a good ordinance. Commissioner Saunders moved, seconde4 by Commissioner Shanahan and carried unanimously, that the public hearing be closed. Assistant County Attorney Manal~ch noted that the final public hearing to consider the Collier County Sexually Oriented Businesses Location and Regulation Ordinance is scheduled for August 21, 1991, at 6:30 P.M. ORDINANCE 91-71 ESTABLISHING TH~ EMERGENCY MEDICAL SERVICES SYSTEM IMPACT FEE ORDINANCE - ADOPTED Legal notice havin~ been published in the Nap]es Da~ly News on June 12, ~991, as evidenced by Affidavit of Publication f]led with the Glerk, public hearing was continued from June 18, 1991, to consider the Emergency Medical Services System Impact Fee Ordinance. Page August 7, 1991 Assistant County Attorney CronIn advised that this is the second public hearing on the Emergency Medical Services System (EMS) Impact Fee Ordinance. He informed that attached to the proposed ordinance is the revised Impact Fees Study for EMS. Ms. Jane Fitzpatrick of Henderson, YounG & Company explained that three issues surfaced during the previous public hearings on this subject with one of them being the number of ]and use categories included in the study, another being to breakout helicopter and ambu- lance as two separate fees within the analyses, and the last issue being to base the credits calculation on each land use category as opposed to a general credit for residential and non-residential. She advised that the Impact Fees Study dated July 22, /991 represents a better reflection of the nexus of benefit principles in addressinG these concerns and incorporating the changes into the Study. In response to Commissioner Shanaban, Ms. Fitzpatrick stated that a review was made of the agricultural, migrant camps, and medical office/clinic areas' demand on the system, and the Study reflects the results. Commissioner Shanahah questioned lhe diversSty in th(~ impact fee between a single family fee of $14.28 and multi-family fee of $1.57. Ms. Fitzpatrick explained that the diversity is caused by demand on the system by the single family versus the multi-family which is iljustrated in Table /0-A, page 47, and Table 10-H, page 48, of the Study. In response to Commissioner Vo]pe, Ms. Fitzpatrick stated that the ~mpact fee credit is based on the taxable value of the land use and the contribution the structure makes to the one mill capital improve- ment tax. She advised that the impact fee is to be paid at the time of building permit issuance. In regards to Commissioner Goodnight's concern regarding the impact fees for agricultural u~es, Mr. Randy Young of Henderson, Young & Company explained that the impact fees are designed to identify as close as possible with the facts available the relationship between mm 2o Page 19 August 7, 1991 the need and use of a public facility such as an ambulance for a deve- lopment of a structure which generally causes the impact for need. He cited that the Impact fee could have been ca]cu]at,d differently, however, they were trying to keep it as stmple a fee as possib]e. Commissioner Goodnight suggested that there be a finer definition for a structure. George Vega speaking on behalf of the Naples Community Hospital emphasized the community service this hospital has performed for ~he County and suggested it should be exempt from EMS impact fees as are publicly owned governmental buildings. Commissioner Saunders agreed that this Js a good point and the hospital should be considered for exemption of the impact fee. In response to Commissioner Vo]pe, Mr. Vega stated that the hospi- tal, the clinics and any of the ancillary services connected to the hospital should be exempt as they provide services for the public at a loss. Commissioner Shanahen questioned how it would be possible to accommodate the hospitals with the request of exemption? Commissioner Saunders asked further if it would be legally sustainable to exempt the hospital from the EMS Impact fee? County Attorney Cuyler affirmed that the CommfssJone~s could make the policy decision to exempt the hospital from the EMS impact fee, and suggested that it be made on the basis of a health care provider. Commissioner Saunders expressed his support for the ellm]nation of EMS impact fees from the hospital and their facilities ]n light of the fact that they do prouide a significant amount of care to the com- munity at a loss to the hospital. Commissioner Shanahah concurred with Commissioner Saunders state- ment. Commissioner Goodnight commented that the State provides for indi- gent health care, however, the hospital has opted to not take the money offered. She explained that the hospital feels that they can provide for these people without using the taxpayer's dollars, and Page 20 August 7, 1991 added that the hospital has supported the County in its requests. She agreed that the hospital should not be charged the EMS impact fee. Commissioner Volpe suggested that the exemption of impact fees for the hospital be made in a form of a waiver with certain criteria deve- loped. ='s DelTUt~f Clerk Hoffman replace DepuTy Clerk Arrighi at this time ''' Mr. Young pointed out that hospitals and any other applicant have the right, under the ordinance, to submit alternate data and request an alternate fee calculation, including a fee calculation of zero. He suggested that if a specific category is to be exempt or waived, such a class could be created by Resolution. Mr. Young explained that there could be a statement of Policy from the Commission, indicating that it is the desire of the Board for staff to interpret the case of the hospital that such data would be generally looked upon as exempting it. County Attorney Cuyler advised that the ordinance could be amended at the end of the first year and then every two years thereafter. Commissioner Saunders announced that he believes that the hospital should be exempt from this ordinance, based on certain findings, which includes the fact that they are the sole provider and they contribute a tremendous amount of money to the community by providing free medi- cal care. County Attorney Cuyler stated that it would be legally viable, if the Commission desires to add language stating that "an exemption for a health care provider shall be established by the Board of Co,~nty Commissioners and may from time to time be amended by Resolution." Commissioner Saunders questioned whether language could be added indicating that "a factor that the Board of County Commissioners may consider in evaluatln~ the waiver of fees ~s the indigent care pro- vlded to the community, at no cost." Mr. Youn~ replied that rather than having the pres~ul'e (~f arriving at the appropriate language at this time, that the right be reserved to adopt by Resolution at a later time, criteria from exempting anyone. Page August 7, 1991 County Attorney Cuyler indicated that he feels this would work. Mr. David Borden, representing the Barron Collier Company, questioned the manner by which the credits are applied and how the impact fees are collected as compared to the information that has been collected during the past four or five years. He called attention to to Table 6-H, relating to the Melicopter and noted that the Huey Helicopter was not listed as a capital expenditure during the past five years. Mr. Young reported that Page 29 of the Study lists all the costs of the helicopter and reduces those costs to an annual cost by takinG each of the component parts for its own useable life. He noted that in individual years, certain items are replaced and there is a dif- ferent pattern of refurbishment. He indicated that when the average annual credit was calculated, the actual expenditures over that time period were annualized. Mrs. Barbara Cawley, representing Wilson, Miller, Barton & Peek, Inc., stated that she feels there is a problem with the methodology in calculating the costs and fees. UslnG figures taken from the charts, she remarked that there is an inequitable fee for future resid,nts compared to what the past residents have been paying in their annual tax bills. Mr. Young explained that the impact fee is paid once and only once. He noted that when a property is paying an impact fee, Jt will be receiving services for the use of the life of the property paying the fee. Mrs. Cawley called attention to PaGe lB of the Ordinance, Paragraph 2 with respect to Vested Rights. She related that ifa DRI donates a site for an EMS Facility or ambulance, there is no DRI vested right for any donation that was provided in the past. Tape #4 Assistant County Attorney Cronin stated that this would fall under the developer contribution credit which is the fair market value of the facility or the land, but this would not fall under the vested Page 22 August 7, rights section. He cited that If a developer contributed property worth $20,000, the $20,000 impact fee credit Cs given at the time of issuance of the building permit. He noted that the contrlbut Ion level is set at the time the contribution is made. Mrs. Cawley related that she does not understand why fees are being charged for accessory uses. She remarked if ground parking is put in, no ~mpact fees would be cha~ged, but if a parking garage is constructed, impact fees would be charged based on the square of same. She suggested that there be a method to exempt accessory buildings from the Ordinance. Mr. CronIn advised that this provision comes from the Ordinance and other Impact Fee Ordinances. There were no other speakers. Co~m~ssioner Saunders moved, seconded by Commissioner Shanahan and carried unanimously, to close the public hearing. Comm~ssioner Saunders moved, seconded by Comm~ssioner Shanahah and carried unanimously, that the Ordinance as numbered and titled below be adopted, and the additional language that primary, secondary, n~cal and dia~nost~c care being directly related to the treatment of patients, bein~ exempt, and entered into Ordinance Book No. 45: ORDINANCE 9~-?! AN ORDINANCE TO BE ~NOWN AS THE COLLIER COUNTY EMERGENCY MEDICAL SERVICES SYSTEM IMPACT FEE ORDINANCE; PROVIDING DEFINITIONS, OF CONSTRUCTION AND FINDINGS; ADOPTING A CERTAIN IMPACT FEE ST[;DY; PROVIDING FOR IMPOSITION OF EMERGENCY MEDTCAI. SERVTCE SYSTEM IMPACT FEES ON ALL EMERGENCY MEDICAL SERVICES SYSTEM IMPACT CONSTRUCTION OCCURRING WITHIN COLLIER COUNTY; PROVIDTNG FOR PAYMENT AND COLLECTION OF EMERGENCY MEDICAL SERVICES SYSTEM IMPACT FEES; DEFINING THE TERM EMERGENCY MEDICAL SYSTEM IMPACT CONSTRUCTION; PROVIDING FOR PAYMENT AND [;SE OF MONIES; PROVIDTNG FOR ALTERNATIVE FEE CALC~LATION; PROVIDING FOR EXEMPTIONS AND VESTED RIGHTS IN CONNECTION WITH EMERGENCY MEDICAL SERVICES SYSTEM IMPACT FEES; PROVIDING FOR COLLECTION OF IMPACT FEES UPON CHANGES IN SIZE AND USE; PROVIDING FOR AFFORDABLE HOUSING EXEMPTION AND AFFORDABLE HOUSING REIMBURSEMENT; PROVIDING iNTEREST TO BE PAID ON CERTAIN REFUNDS; PROVIDING FOR DEVELOPER CONTRIBUTION CREDIT; PROVIDING FOR REVIEW HEARINGS; REQUIRING ANNUAL REVIEW; DECLARING EXCLUSION FROM ADMINISTRATIVE PROCEDURES ACT; PROVIDING FOR INDIVIDUAL CALCULATION OF IMPACT FEES; PROVIDING FOR CONFi. ICT AND SEVERABILITY; PROVIDING AN EFFECTIVE DATE. There being no further business for the Good of the County, the meeting was adjourned by Order of the Chair - Time: 1~:20 P.M. Page 23 August 7, ~ggl BOARD OF COUNTY COMMISSIONERS BOARD O~ ZONING APPEALS/EX OFFICIO GOVERNING BOARD(S) OF SPECIAL DISTRICTS UNDER ITS CONTROL · ATRIGIA ANNE GOODNIGHT, CHAIRMAN ATTF~T.: · ,' , JAMF~..'C .. GILES ,'JCL~RK · . . .. ~,' ~ / ' as. p~esented ~ o~ as corrected Pacje 24