HomeMy Public PortalAbout2002-10-15 Regular Meeting92
COUNCIL MINUTES
REGULAR MEETING — OCTOBER 15. 2002
The Regular Meeting of the Bal Harbour Village Council was held on Tuesday, October 15,
2002, in the Council Chambers, at Bal Harbour Village Hall. The meeting was called to
order at 5:35 p.m. by Mayor Berlin. Those present were:
Also present:
Mayor Howard J. Berlin
Assistant Mayor Daniel S. Tantleff
Councilman Joel S. Jacobii
Councilman Seymour "Sy" Roth
Alfred J. Treppeda, Village Manager
Jeanette Horton, Village Clerk
Larry Freeman, Chief of Police
Richard J. Weiss, Village Attorney
Absent: Councilman Peg E. Gorson
As a quorum was determined to be present, the meeting commenced.
2. PLEDGE OF ALLEGIANCE: The Pledge of Allegiance was led by
Assistant Chief Jay Smith.
3. APPROVAL OF MINUTES: A motion was offered by Councilman Roth and
seconded by Assistant Mayor Tantleff to approve the minutes of the September 17, 2002 Second
Budget Hearing and the September 17, 2002 Regular Council Meeting. The motion carried
unanimously (4-0), with Councilman Gorson absent, and the minutes were approved as
submitted.
4. PRESENTATIONS:
Officer of the Month — Officer Kenneth Klingman: Chief Larry Freeman
announced that Officer Kenneth Klingman was selected as "Officer of the Month" for
September 2002, for aggressive enforcement of traffic and Code violations. Officer Klingman
was presented with a plaque by Chief Freeman. Officer Klingman was presented with a check
by Mayor Berlin on behalf of the Village.
5. PUBLIC HEARINGS: None
6. ORDINANCE FIRST READING: An ordinance was read by title, by the
Village Clerk, amending the Dangerous Dogs portion of Section 5-7, of C:hartHr 5.
Mr. Weiss explained that this ordinance was drafted, in response to the oirection of tie
Council, at the last meeting. He advised that it further strengthens the Village's DE.ngerods
Dogs Ordinance by going one step beyond what the County does. Mr. Weis-, stated that
I Councilman Jacobi arrived during the Officer of the Month Presentation.
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the Village's Ordinance now prohibits the owning of a dog that is determined to be a
dangerous dog by the County. He advised that the County has a determination process.
Mr. Weiss stated that the ordinance also has a specific retroactivity provision, which states
that any dog that has been determined to be a dangerous dog, within the last 3 years, is
also prohibited from being owned and kept in the Village.
Mr. Weiss suggested this ordinance to strengthen the dog ordinance. Mr. Treppeda
recommended passing the ordinance to strengthen the ordinance, to allow the Village to
get rid of dangerous dogs.
A motion was offered by Assistant Mayor Tantleff and seconded by Councilman Roth to approve
this ordinance. The motion carried with the vote as follows: Mayor Berlin aye; Assistant Mayor
Tantleff aye; Councilman Gorson absent; Councilman Jacobi aye; Councilman Roth aye. Thus
becominz:
ORDINANCE NO.
AN ORDINANCE OF BAL HARBOUR VILLAGE, FLORIDA, AMENDING THE
VILLAGE CODE BY AMENDING PARAGRAPH (g) "DANGEROUS DOGS" OF
SECTION 5-7 "CONTROL OF DOGS" OF CHAPTER 5 "ANIMALS", TO
PROHIBIT THE OWNING, POSSESSING, KEEPING OR HARBORING OF DOGS
WHICH ARE OR HAVE BEEN DETERMINED TO BE DANGEROUS DOGS;
PROVIDING FOR PENALTY AND ENFORCEMENT; PROVIDING FOR
SEVERABILITY; PROVIDING FOR INCLUSION IN CODE; PROVIDING FOR AN
EFFECTIVE DATE.
7. RESOLUTIONS: None.
8. REPORTS AND RECOMMENDATIONS:
A. MAYOR AND COUNCIL:
Assistant Mayor Tantleff reported on the Miami -Dade County League of Cities Installation
Dinner. He thanked Councilman Roth for attending the meetings with him. Assistant Mayor
Tantleff thanked the Mayor and Council for the plaque that was presented to him at the
Dinner for his year of service as the League President. He reported that everyone was
proud of the job that Bal Harbour did during his term as President and he thanked the
Mayor and Council for allowing him to serve on the Board.
Assistant Mayor Tantleff reported that he attended the Installation Ceremony for the Board
of County Commissioners. He advised that Sally Heymen, Jose "Pepe" Diaz, Mr. Roll,
Rebecca Sosa, Katie Sorenson and Jimmy Morales were installed this morning. He
advised that it's great for Bal Harbour because many of the elected officials, such as
Rebecca Sosa and Pepe Diaz, used to be municipal officials and the Council has great
connections with them. Assistant Mayor Tantleff advised that he has invited Sally Heymen
to attend a future Council meeting.
Assistant Mayor Tantleff advised that in response to Councilman Jacobi's comment at the
last meeting, he is opposed to bicycles on the beach and suggested that additional signs
be placed stating "no bicycles on the beach." He advised that the pedestrians need to be
protected. Mr. Treppeda reported that he met with the sign company today and is working
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on getting more signage on the beach.
Councilman Roth questioned the status of getting emergency telephones on the beach. Mr.
Treppeda advised that the budget was just approved, so funds are now available and that
will be brought to the Council for approval, hopefully next month.
B. VILLAGE ATTORNEY:
Founders' Circle: Mayor Berlin explained that last month the Council
agreed that it would pursue a "decision tree," starting with the Village Attorney determining
whether or not Founders' Circle is a traditional public forum. Mr. Weiss stated that they are
still reviewing some information, but based upon the information that they have, they have
preliminarily determined that Founders' Circle is a traditional public forum, as that term is
used by the United States Supreme Court. He explained that having made that
determination, the next step would be for the Council to make a decision as to how it wants
to treat it and whether it wants to have rules and regulations dealing with how that
traditional public forum is used. Mr. Weiss stated that some time ago an ordinance was
discussed talking about how the Circle could be used, time limits, etc. He thinks that the
next step would be looking at that ordinance again and having a discussion on what kind of
rules and regulations should apply to the public usage of the Circle.
Mayor Berlin questioned Mr. Weiss that if he has determined that it's a traditional public
forum, whether or not it can be changed to not be a traditional public forum. Mr. Weiss
stated that there are ways that a traditional public forum can be converted to a non-
traditional public forum, but it requires a total change of use by the municipality, or a
change of ownership.
He stated that, in the Village Attorneys' opinion, it cannot be changed just through the
issuance of regulations or by a designation to be something other than a traditional public
forum, unless there's a major change in the use of that property. Mayor Berlin questioned if
the Village continued to use it in its current "park like" setting, if it would retain its
designation as a traditional public forum. Mr. Weiss responded yes.
Mayor Berlin stated that the Council now needs to decide on how to govern the use of it.
Mr. Weiss stated that there are a lot of ways to go, from having no regulations at all to the
other extreme, which is to be the most restrictive that the Village can, given the fact that it
is a traditional public forum. He thinks that the ordinance that the Village Attomeys
previously drafted was in the middle, which would be a good place to start conversation.
Mr. Weiss will try to come up with ordinances from some other municipalities to show other
alternatives.
Assistant Mayor Tantleff doesn't know what the big issue is because there's not a large
outcry from many citizens of what is going on there now. He advised that maybe one
person speaks about it over and over again, but other than that, nobody else is heard
bringing it up. Mayor Berlin suggested that the Village Attorney come back and give the
Council an idea of how other cities deal with their traditional public forums. He stated that it
may be the case, as Assistant Mayor Tantleff suggested, that there really isn't a problem
and the Council may elect to take the position that it doesn't require any rules, meaning
that it could be self governing and allow whatever happens there to happen. Mayor Berlin
thinks that has certain risks attached to it, but it may be the way that the Council decides to
go and is one alternative. He explained that another alternative is to consider
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recommendations and promulgate rules that govern the use, to be done at a Council
meeting to have input from the community and to get a sense of what citizens would like to
see there, instead of just what the Council thinks. Mr. Weiss stated that the ordinance that
was previously drafted will be put on the next agenda, not as a first reading, but for the
Council to consider, and any other information that can be found. He would prefer to have
public input and input from the Council before the Attorneys start re -drafting the ordinance,
because he doesn't have any direction at this point.
C. VILLAGE MANAGER:
Award of Bid for Addition of Two (2) Valves at the Storm
Drainage Pump Station: Mr. Treppeda explained that currently the pump station, which
is located in the Security District, just pumps the first inch of runoff water into injection
wells. He advised that to improve drainage, especially in the northeast section where a pipe
had to be grouted and was unable to be replaced, he would like to convert the existing
pump station to continuously pump, until the water is gone. Mr. Treppeda explained that
the first step would be to add these two valves. He reported that the following bids were
received:
1. Rangeline Tapping Services $18,500.00
2. Shenandoah Construction $18,950.00
3. MAJ Contracting, Inc. $23,980.00
Mr. Treppeda recommended approval of the low bidder, which is Rangeline Tapping
Services, for $18,500. He stated that funds are budgeted for storm drainage
improvements.
A motion was offered by Councilman Roth and seconded by Councilman Jacobi to award the bid
for the addition of two valves to Rangeline Tapping Services in the amount of $18,500. The
motion carried with the vote as follows: Manor Berlin aye; Assistant Mayor Tantleff aye;
Councilman Gorson absent; Councilman Jacobi aye; Councilman Roth aye.
Approval for Purchase of New Microphones for Council
Chambers: Mr. Treppeda explained that there have been problems with the current
microphones and there are new silent microphones that are very easy to change. He
advised that the current microphones are very difficult to change, when they go bad. Mr.
Treppeda advised that Sound Performance, the company who installed the current
microphones, have provided a price of $2,850.00, to purchase and replace the
microphones.
A motion was offered by Councilman Roth and seconded by Assistant Mayor Tantleff to approve
$2,850.00 for Sound Performance to replace the microphones in the Council Chamber. The
motion carried with the vote as follows: Mayor Berlin aye; Assistant Mayor Tantleff aye;
Councilman Gorson absent; Councilman Jacobi aye; Councilman Roth aye.
Approval of Lease Agreement for Three (3) Police Vehicles: Mr.
Treppeda explained that this is a normal replacement cycle of the Village's police cars and
he is requesting the approval of lease agreements, for three police cars, in the amount of
$388.67 per month, per vehicle. He advised that the department has decided to go with
leases, so that the Village doesn't have to put all of the money up front each year. It would
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require less money budgeted each year for leasing. Mr. Treppeda stated that the lease
would be through Mears Leasing, which is through the State bid.
A motion was offered by Assistant Mayor Tantleff and seconded by Councilman Roth to authorize
the Village Manager to enter into a 60-month closed end lease agreement for three police cars
(Ford Crown Victoria)for $388.67, per month, per vehicle. The motion carried with the vote as
follows: Mayor Berlin aye; Assistant Mayor Tantleff aye; Councilman Gorson absent;
Councilman Jacobi aye; Councilman Roth aye.
Approval of Expenditure of Forfeiture Funds for Police
Equipment: Chief Freeman advised that he would like to purchase an @ Road tracking
system for the police vehicles, which is a wireless Internet based GPS service, which would
give reports on vehicle location, speed, travel direction, and stops, 24 hours a day. He
stated that @ Road is the sole provider for this particular type of equipment. Chief Freeman
advised that the Chief for Golden Beach Police Department showed him the vehicle
tracking system and he contacted the company for a demonstration. He stated that this is a
management tool that can aid in resolving a lot of issues that come to him (officers not
being seen, officers congregating, etc.). Chief Freeman explained that, with this system, he
can either confirm or deny these complaints right away, by looking on the computer. He
stated that this system is the best one available and is the most accurate. Mayor Berlin
questioned Chief Freeman if he has checked other departments that are using this. Chief
Freeman advised that Aventura has a system, but it's based through their laptop
computers, which would depend on the officer turning on the laptop. He explained that this
system is a stand alone fixed unit. Chief Freeman advised that Golden Beach has this
system and management likes it. Mr. Treppeda advised that a survey was done and
Aventura has a system, Golden Beach has this system, Pine Crest has a system, Surfside
has a system, Coral Gables has low jacks on some of the vehicles, and Miami -Dade
County is currently negotiating for a similar type of system. Mayor Berlin questioned Mr.
Treppeda if he is recommending it. Mr. Treppeda responded yes. Assistant Mayor Tantleff
questioned if Chief Freeman is recommending it. Chief Freeman responded yes.
Doug Rudolph, resident-212 Bal Bay Drive, questioned if the system covers activity in
the entire city. Chief Freeman responded that it is Countywide. Mr. Rudolph questioned if
this is something that the Chief or Assistant Chief would be able to see on their computers,
but isn't something that anyone would be able to access to erase. Chief Freeman
responded nobody else would be able to access it and it is an Internet based system.
Mike Braverman, Associate General Counsel for the Dade County Police Benevolent
Association, advised that this issue is concerning to the individuals in Bal Harbour and the
Union, in general. He explained that the reality is that the storing of data that categorizes
and identifies the location of public safety individuals is very dangerous. Mr. Braverman
doesn't know what the specifics of this system are (the protections, the ability to prevent
anyone from being able to access this system, etc.). He would like the Council to be aware
of a couple of things that he thinks are very important. Mr. Braverman explained that he
has been involved in cases, specifically in Hialeah, involving these tracking devices. He
stated that he has never been shown that the tracking devices have been activated in any
way to aid an officer that is down, in trouble, or in need of immediate assistance. Mr.
Braverman explained that there are countless other personal protection devices that law
enforcement officers can use, if in fact the intent of this type of equipment is to provide a
safer environment for the members of the Bargaining Unit and the police in general. He
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stated that the Village has a number of systems that are employed now (radio
transmissions, daily logs, and transponders for access to restricted areas) that can record
where a police car is, at any given time. Mr. Braverman also believes that the Supervisors
in Bal Harbour do a good job and have control of where the officers are and what they're
doing, in a given day. He stated that there are also visual observations and Bal Harbour is
a unique community in that it is not geographically spread over a large area. Mr.
Braverman advised that it is safe to assume that personal contact between a Supervisor,
direct supervision through observation, would be more prevalent here then any of the other
departments that have been cited as departments that use teletrack. He thinks that is a
relevant provision to consider when contemplating entering into a $32,000, 3 year
agreement, which will show what can already be shown at any given time by utilizing the
existing systems (dispatchers, location and times of calls are recorded, work sheets, etc.).
Mr. Braverman thinks that the security problem is two fold with the system. He explained
that it's not only from the outside (who will have access, unbeknown to anyone, and be
able to identify specifically where every car is and thereby commit some crime knowing that
they have a much longer response time). Mr. Braverman advised more subtly, when
utilizing this data to support or rebuff complaints about service, these documents will
become public records and will be accessible by every individual, inside and outside of this
community. He stated that he would hate to see someone using the documents and getting
a pattern and to be able to identify a day to go and hit the bank, or commit some crime in
the Village, because they would know there is a propensity, a scientific statistical
probability, that those police officers are not going to be in that area, because they have
data they can use in making that decision. Mr. Braverman doesn't think that is a good idea
and causes problems.
Mr. Braverman distributed a package of letters received from businesses in the Village,
expressing concern about Internet based data systems that track and identify the location
of police vehicles within this Village. He stated that those business owners are concerned
about the control of that data.
Mr. Braverman stated that the second control problem with this data is how and who is
given access to the data. He stated that the Chief would have the data and be able to
monitor, but any public official, who obtains this data, is subject to the State Statute and
doesn't think any elected official would be able to get that information, without subjecting it
to disclosure.
Mr. Braverman believes that all of these areas add up to a very serious situation that needs
further study and review. He stated that the departments that have been cited that use
teletrack systems are in the minority. Mr. Braverman thinks that the proper thing to do is, if
there are questions as to the level of service that is being received, he assures through his
efforts and the leaders in this department, and whatever methodology needs to be applied,
the performance related concerns will be addressed.
Mr. Braverman stated that nobody wants to have a device that somehow can be used to
question the veracity of their statements, when it relates to their whereabouts. He advised
that the officers in Bal Harbour put people in jail and everyone on the Council knows that
they take life, liberty, and property, based on their word. Mr. Braverman stated that the
veracity of their word should not be questioned and those steps shouldn't be taken as a
Village that shows the outside that it questions the veracity of its officers' statements. He
advised that if there are problems, then he is willing to work with the Village Manager and
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the Chief, as well as the Council, to address them. Mr. Braverman hopes that the Council
considers this matter very seriously and votes not to purchase such a system.
Tom Evans, resident — Carlton Terrace (10245 Collins Avenue), thanked the Council for
everything that they have done for the Village. He stated that when he heard that $30,000
was going to be taken from the Forfeiture Fund so that vehicles could be tracked, it raised
some questions. Mr. Evans stated that if this is being done because the Council does not
have confidence and trust in its police officers, then he thinks that should be addressed
directly, specifically, and up front. However, if it's being done simply to locate a vehicle so
that someone in the Village can be told where the vehicle is, then the person's next
question is going to be who is in that vehicle and if they were in the vehicle at the time. Mr.
Evans explained that the Village is still going to have to ask the officer to validate that and
the Village has the ability to do that now, without the tracking system. He stated that he
wouldn't question whether or not other communities are using it or similar systems, but
would look at their overall budgets and the Village's budget, to see whether this money
might be better spent on other items. Mr. Evans would like to see a comparison of how
money might be otherwise spent. He asked that the Council not approve this today and
suggested that it be further studied and maybe revisited in 2-3 months. Mr. Evans
respectfully requested that the Council not approve this today.
Margarito Sarria, @Road Sales Manager for Miami, explained that the system is user
name and password sensitive. He stated that the company is Internet based and is a
tracking GPS company that is publicly traded on the stock exchange. Mr. Sarria advised
that several of the police stations that use the system around town are using it for
dispatching purposes, not so much for "big brother" issues, to determine who can be sent
to a call faster. He stated that it has also been used in Los Angeles, in certain occasions,
when an officer is down and can't get to a radio to say exactly where he is. Mr. Sarria
advised that in instances of stolen police vehicles, they are easier to locate. He reported
that other areas of concern, for particular police stations, are police officers staying in the
geographical area that they are suppose to patrol.
Chief Freeman thinks that this is a good management tool for what the Village wants to
accomplish. He advised that it isn't to hurt anybody, but when complaints are received he
can easily verify whether they are true or not. Such as a complaint that an officer didn't
respond, the system will show whether they really did or not. Chief Freeman confirmed that
the money for this system would come from the Forfeiture Fund, not taxpayer money. He
explained that the current balance of the Forfeiture Fund is approximately $244,000. Chief
Freeman advised that the Village has an officer detached to HIDTA (High Intensity Drug
Trafficking Agency), who shares in the drug seizures with DEA (Drug Enforcement
Agency). He advised that the money is put in a fund, which has been used to purchase
guns, motorcycles, a jet ski, and an ATV for the Department. Chief Freeman stated that the
money can be used for non -budgeted items that are police related. Mayor Berlin
questioned the meaning of it as a management tool and questioned that since the Chief is
asking for it, if there is a need for it. Chief Freeman thinks that at this time there is. Mayor
Berlin stated that it wouldn't be a bad idea to have a discussion, with representatives of the
PBA, so they can understand exactly why the Chief feels he needs this. Mr. Treppeda
advised that a meeting has already been held.
Mayor Berlin advised that he is very sensitive to the comments made by Mr. Braverman
and the comments in the letters received. However, he concluded that Chief Freeman is
the chief law enforcement official of this Village and the Council is relying upon him and his
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expertise to manage his department and to run his police force. Mayor Berlin doesn't want
to second-guess him on this and is uncomfortable doing that, but he is very sensitive to the
comments that were made, because the last thing he wants to see the Council do is
sacrifice the security of the Village for a management tool. Chief Freeman stated that, with
this system, he doesn't see sacrificing of any security within anywhere in Bal Harbour.
Assistant Mayor Tantleff advised that he is completely against the use of this system;
however, he doesn't want to question the Chief. He questioned if there are instances
happening when police vehicles need to be tracked. Chief Freeman advised that there was
one instance, which the Village is arbitrating now, where someone left to do some errands.
He stated that there have been other instances of officers leaving the Village. Assistant
Mayor Tantleff echoed Mayor Berlin in saying that this is not a great policy, but questioning
the Chief could be a worse policy.
Mr. Braverman questioned the results from the other cities using the teletrack. Chief
Freeman advised that the management seems happy and it accomplishes what they want
it to. He explained that Aventura has had it, since their inception.
Mayor Berlin stated that Chief Freeman is saying that he needs a management tool, so he
knows where his officers are 24 hours a day. He advised that it's fairly obvious that there's
an issue there. Mayor Berlin stated that if Chief Freeman has talked about it with the PBA
and the officers, and still feels that he needs a tool, then it is suggested that the problem
hasn't been solved. He doesn't find any immediacy or emergency to having this equipment
installed tomorrow, but he thinks the message has been delivered loud and clear that if the
problems persist, he will be the first one to recommend to the Chief that he retum and bring
this up again, and he would be voting in favor of it. Mayor Berlin stated that having brought
this to the Council's attention, he is inclined to let the PBA Representative go back and
explain to the line officers that the Chief believes that this is something that he needs,
which suggests that there is still a residual problem that needs to be addressed. Mayor
Berlin is prepared to defer, for the time being. He advised that unless the Chief feels
strongly to go forward today, he would recommend that this be deferred. He stated that if
the problem persists, then the Chief can come back and recommend it, which means that
the problem hasn't corrected itself, then the Council can take it up at that point.
It was the consensus of the Council to defer the @Road vehicle tracking system.
Chief Freeman requested approval for the following items for the Bal Harbour Detective
that is detached to HIDTA:
1. Lap top computer $2,299.99
2. Printer $ 399.99
3. Digital Camera $ 549.99
4. Camera Bag & Accessories $ 49.99
5. USB Floppy Drive $ 49.99
6. Digital Scanner $ 199.99
A motion was offered by Councilman Roth and seconded by Councilman Jacobi to approve
$3,549.94 of Federal Forfeiture Funds for the above listed items. The motion carried with the vote
as follows: Mayor Berlin aye; Assistant Mayor Tantleff aye; Councilman Gorson absent;
Councilman Jacobi aye; Councilman Roth aye.
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Authorization for Village Attorney to Collect Overdue Security
Assessments: Mr. Treppeda requested authorization for the Village Attorney to collect
overdue Security Assessments, as provided for in Section 18-120 of the Bal Harbour Code
for the following people:
1. Babak Raheb ($1,023.75)
2. Richard Olsen ($813.75)
3. Robert or Dorothy Oldham ($8,198.75)
Mr. Treppeda explained that Mary Harris has paid, since the printing of the agenda.
Councilman Roth questioned why the Oldhams have been outstanding for 11 years. Mr.
Treppeda explained that there are liens on the house.
A motion was offered by Assistant Mayor Tantleff and seconded by Councilman Roth to authorize
the Villaze Attorney to take the appropriate action, in accordance with Section 18-120 of the Bal
Harbour Code, to collect the overdue Security District Assessments. The motion carried with the
vote as follows: Mayor Berlin aye; Assistant Mayor Tantleff aye; Councilman Gorson absent;
Councilman Jacobi aye; Councilman Roth aye.
Recommendations of Resort Tax Committee: Mr. Treppeda
reviewed the following recommendations made by the Resort Tax Committee at their
meeting on October 10, 2002:
1. November Northeast Sales Mission (New York — Nov. 11-15) $ 3,000.00
2. Luxury Travel Market (Orlando — Dec. 10-12) $ 2,000.00
3. U.K. Mission (London — Jan. 19-24) $12,000.00
4. Gift Item for Meeting Professionals Int'l (Sheraton) $ 4,000.00
5. Russian Media Visit (Oct. 17-21) $ 500.00
6. Printing of Pasaporte Book $23,372.00
TOTAL: $44,872.00
The items also include that it was the consensus of the Committee that any attempt to enact legislation to
prohibit topless sunbathing would result in negative publicity, which could affect tourism. As such, the
Committee urges the Council not to pass any such legislation.
Assistant Mayor Tantleff stated that the Council isn't being asked enough to participate in
events that the Village is hosting. Mayor Berlin introduced Jose Lima, the new Director of
Tourism Marketing. He stated that Mr. Lima is very talented and the Village is very lucky to
have him.
A motion was offered by Assistant Mayor Tantleff and seconded by Councilman Roth to approve
$44,872.00 for the above listed Resort Tax Committee Items. The motion carried with the vote as
follows: Mayor Berlin aye; Assistant Mayor Tantleff aye; Councilman Gorson absent;
Councilman Jacobi aye; Councilman Roth aye.
9. OTHER BUSINESS:
Joan Jacomo, resident — 97 Camden Drive, discussed the issue concerning topless
sunbathing on the beach. She advised that a year ago a lady, who is employed as a nanny
by a member of the Bal Harbour Beach Club, continuously stayed on the beach watching
the children, taking off her top, walking around and going in and out of the water. Mrs.
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Jacomo advised that, since then, there was a meeting in May with the Village Attorney to
address this and to discuss perhaps putting an ordinance in place. She explained that she
was away for the summer and came back in late September and she has noticed at least 4
other women that she does not think live in Bal Harbour, walking around the beach topless.
Mrs. Jacomo advised that she finds this to be offensive and she is concerned because it
could be an issue of danger to children, such as the wrong kinds of people coming to the
beach, if they see these things are going on and are allowed. She stated that the police
have approached the women and, most of the time, they will not listen because they know
that they can do this legally. Mrs. Jacomo advised that she is concerned because she
knows there is an issue with the resort tax people. She advised that there were no topless
people at the Sheraton or Sea View during a holiday weekend and she noticed that there
were a lot of families visiting with little children. Mrs. Jacomo thinks that they would find it
very offensive to have these women walking along and going into the water next to their
children. She would like the Council to consider putting this ordinance in place, because
she thinks it's for the good of the community, because everyone has worked very diligently
together and have tried to keep this Village very exclusive and safe. Mrs. Jacomo stated
that if the Council would just consider it, she would be very pleased.
Nina Rudolph, resident — 212 Bal Bay Drive, discussed that she went to the beach with
her 11 year old son and some of his friends. She advised that there were two women
laying down without their tops on and two women in the water without their tops on. Mrs.
Rudolph explained that the boys thought it was funny and wanted to discuss what they
were seeing. She then thought that she should call the parents of the boys to let them
know where they were and that they were at the Bal Harbour beach. Mrs. Rudolph stated
that it dawned on her that maybe the Village should re -think this and if this is what the
Village wants moving forward. Whether or not the Village wants this to become a topless
beach, because this is Bal Harbour with residents that live here full time. She advised that
there are families living here and it may be something that the Village does have to
consider now, that she didn't think of before.
Mary Schaffer, resident — Plaza Condominium (10185 Collins Avenue), stated that she
wants the Council to understand that the residents are not old grandmas, but it's starting to
get very lude. She advised that she laughed about it too at the beginning, but she is
starting to see an element of men coming on the beach that are very low types of people.
Ms. Schaffer stated that these girls are not from Bal Harbour and doesn't know where
they're coming from. She advised that all they are asking is that, they are allowed to go
with their top off on the beach anywhere in the world, but why does the Village have to put
up with girls getting up prancing around. Ms. Schaffer requested that when the police see
the girls prancing around that they ask them to put their tops on; if they're lying down then
that's fine. She stated that they are just asking for a little discretion.
Michele Marcy, Sheraton Bal Harbour Beach Resort Director of Sales, advised that
she has been in resort sales for 16 years at some of the most luxurious resorts around the
world. She advised that while the Sheraton doesn't want to desecrate what Bal Harbour is
either, an official ordinance starts to send out a negative publicity line that will spread like
wildfire. Ms. Marcy stated that in an economy where the Sheraton can't really benefit from
picking and choosing its customers, to the point of discriminating and telling them to go to
another destination or part of the County, when a faction of its business, both
internationally and domestic conventions, have some element of international contingency
to them, when people come in and this is their custom. She advised that in a meeting and
convention world, an ordinance that becomes public record and official, will start a flurry of
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activity of demonstrators and picketers, who are going to jump on this bandwagon as an
opportunity to make a point. She stated that all of a sudden, Bal Harbour then becomes a
limelight type of a place, which will actually attract even more of a bad element, as
opposed to where it is today. Ms. Marcy stated that the tobacco ordinance that was passed
in the State of California, not only affected the business of the tobacco companies from
going to California, but it impacted people politically in other industries, who felt that was
the wrong decision to make. She advised that it starts an epidemic and a domino affect
across industries, when you start to segment and discriminate against one faction of
people, when it becomes public record like this. Ms. Marcy advised that she is not saying
that the Sheraton wants to bring down the image of Bal Harbour either, but there is some
publicity impact for the future economic growth of Bal Harbour.
Tony Noboa, member of the Bal Harbour Resort Tax Committee, advised that this item
was discussed at great length. He advised that while the Committee does not condone
nudism, it has to think that Bal Harbour is an international destination. Mr. Noboa stated
that as an international destination, as the Sheraton discussed, there are certain things that
the Village has to allow. He advised that it was the recommendation of the Committee that,
while the Village should be watchful of what goes on at the beach, it should not just rule out
the possibility that someone may want to go topless. Mr. Noboa stated that the Committee
felt comfortable with that and he hopes that the residents of the community feel
comfortable with that. He advised that the Village should watch it closely, but not make a
big issue out of it and have it all over the world, because this will travel very fast.
Marjorie Schell, resident — Balmoral Condominium (9801 Collins Avenue), thinks that
it is being overlooked that all beaches in America are public beaches and the Village
doesn't have any say. She advised that she is put off by men wearing a little thong, but the
Village can't stop people from walking on public beaches. Ms. Schell thinks that to cut
down the Village's reputation seems to be short sighted, because there are businesses
here that are paying the residents' taxes, literally. She thinks that the Village should think of
it from both sides, not just from one side.
Pat Tumpson, resident — Plaza Condominium (10185 Collins Avenue), questioned if
there is some law that deals with indecent exposure. Mayor Berlin advised that there is a
Iude and lascivious law. Ms. Tumpson questioned if these people can be enforced through
that. Mayor Berlin will address that after comments from the public. Ms. Tumpson agreed
that the Village needs to observe the customs of tourists, but questioned how far the
Village should go. She stated that in some countries pot smoking is legal and questioned if
the Village is going to allow that too. Ms. Tumpson stated that the Village accommodates
so much, but it still has to keep its image in place.
Nicole Jacomo, resident — 97 Camden Drive, stated that some people have suggested
that the police keep a watchful eye and monitor the situation closely, but the hands of the
police are tied at this point, because there is nothing they can do, based upon the laws that
are in place. Ms. Jacomo stated that they are not asking these people not to go topless at
all, but are being reasonable and saying they can go topless and lay down to sun
themselves, but getting up and prancing around on the beach is Iude and lascivious to
most of the residents here. She thinks that it is obvious that there is a nice representation
of people tonight and that this issue is important to some of the residents. Ms. Jacomo fails
to see the connection between curtailing Iude and lascivious behavior and a decrease in
resort taxes, because it doesn't make any sense. She thinks that a strong argument can be
made in the opposite direction, because eventually, if the Village lets things deteriorate and
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the beach becomes similar to what goes on at Haulover, then the Village will see a
decrease in resort taxes. Ms. Jacomo stated that it's her understanding that the Sea View
has a policy, not only against getting up and down topless, but topless bathing period. She
advised that is one of two hotels here.
Jose Lima, Bal Harbour Director of Tourism Marketing, concurs with Mr. Noboa's
comments and added that there is so much competition (Caribbean and Mexico) and
something like this would attract a lot of publicity that might damage the Village's tourism
industry.
Mayor Berlin thinks that the Council wants to do what's in the best interest of the
community. He questioned what laws the Village has in this area. Mr. Treppeda advised
that the Florida State Statute has a lude and lascivious law. He stated that currently if
someone is acting in a lude and lascivious manner, the police would take action, even
without having an ordinance in place. Mayor Berlin questioned without having a specific
topless law, if the Village is out of step with any of the other Oceanside communities. Mr.
Treppeda responded no and advised that the surrounding beach communities were
researched and nobody has a specific ordinance banning topless. He advised that they do
have ones banning nude sunbathing, but not topless sunbathing. Mr. Treppeda advised
that over the last five years, three reports were made by one resident and one by another
resident (2 residents in five years made reports).
Mr. Weiss explained that the Florida Statutes read that it is unlawful to expose or exhibit
one's sexual organs in public, or on the private premises of another, in a vulgar indecent
manner, or to be naked in public, except in any place provided or set for that purpose. He
advised that it also states that a mother's breastfeeding of her baby does not, under any
circumstances, violate this section. Mr. Weiss stated that it appears to him, under the
existing State law, that topless sunbathing would be a criminal misdemeanor first degree
and punishable, by up to one year in prison, and $1,000 fine. He stated that although it
doesn't define sexual organs, and none of the cases do, the fact that they make the
reference to breast-feeding certainly is a clear implication that the other part of the statute
addresses that. Mr. Weiss advised that these kinds of statutes have survived Constitutional
challenge, so under the existing state law there is ample authority to enforce this, if the
Village decides to do that. The Village also has the ability, in addition to that, to pass an
ordinance, further defining what that is, if the Village wants to go there.
Chief Freeman advised that he researched this a couple of years ago when the issue came
up. He reported that the State Attorney will not prosecute simple topless sunbathing,
because they don't consider the breast to be a sexual organ. Chief Freeman stated that he
cannot arrest, if the State Attorney is not going to prosecute. He advised that would put the
Village in a liable situation, if the police do try to arrest somebody and the State Attorney's
office says they're not going to prosecute. Mayor Berlin stated that the State Attorney's
office is the prosecutorial arm of the justice system down here, so they have the last word
on that issue.
Mayor Berlin doesn't think that the issue is morality versus dollars. He thinks it's a modesty
issue, not a morality issue. Mayor Berlin doesn't think that the tourist tax should be taken
lightly, because it paid for the renovation of Collins Avenue, the beach path renovation, the
emergency fund to rebuild the beach in the event that it's swept away during a storm, etc.
which is multiple millions of dollars that was paid for by the people who come to visit Bal
Harbour. He stated that, if it was paid for out of ad valorem taxes, then it would have been
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an astronomical amount of money coming out of people's pockets, so it shouldn't be taken
too lightly. Mayor Berlin stated that the Village's tourist industry has been hurt considerably
since 9/11 and, in the Village, tourism is the number one economic driver and it's also the
number one economic driver in South Florida. He stated that it's the backbone of the
economy and people's jobs and livelihood are at stake, so it's not something that can be
taken lightly. Mayor Berlin stated that Mr. Lima has taught him how important perception is
in the minds of people when they choose a tourist destination and negative publicity could
have a devastating impact. He advised that, while it recognizes that this is an issue of
concern, the Council should at least be diligent in the way that it is approached. Mayor
Berlin stated that the Village shouldn't over -react. He advised that since there have been 2
residents who have filed complaints about this in five years, it doesn't suggest that there's
an overwhelming problem, but it could be on the wave of a trend. Mayor Berlin does
recognize that the Village could be seeing a different form of behavior and that could be of
concern.
Mayor Berlin suggested that the Council take a middle ground. He advised that he is very
mindfold of the people who spoke about their concern about this issue, respects that and
would like to balance those concerns. Mayor Berlin suggested that the police strictly
enforce the current law that is in place and that the Village may not need to have an
additional ordinance. He stated that this may mean having additional police presence on
the beach. Mayor Berlin stated that the concern doesn't seem to be as much for people
laying down topless sunbathing, as people who are topless and walking around the beach.
He suggested that during the upcoming tourist season, the police be more active in their
enforcement of people who are topless and walking around the beach, as opposed to lying
on the beach, and requesting that they put their tops on. Mayor Berlin thinks that having an
officer come up to some people requesting that, should have some impact, so the Village
should see what that does. He suggested monitoring the situation over the next 6 months,
over the season, and see what impact that enforcement has. Mayor Berlin stated that if it
has an impact, and the Village is seeing that the issue turns around, then it will see that it's
working. If it's not working, then the Council can consider some other method.
Councilman Roth agreed with Mayor Berlin. He stated that the Code Enforcement Officer,
who is a woman, has cleared up the bicycle problems and thinks it may be less
embarrassing for her to go up to a topless woman, than a police officer, and ask them to
put their top on. Mayor Berlin questioned if Municipal Code Enforcement Officers are
authorized to enforce criminal law. Mr. Treppeda responded no. Chief Freeman thinks it will
be easier to use the police officers.
Assistant Mayor Tantleff agreed with Councilman Roth that maybe it would be easier for a
female officer to approach these women. He stated that if it is a trend, then the Village
should forget the resort money, because this is a fantastic community. Assistant Mayor
Tantleff stated that the Village has a very low tax base and if it needs to raise taxes a little
bit in the future and forget the tourist industry... He thinks that the Council's first protection
is to its residents and the safety of its children, so if this is a trend that continues and the
Council feels that down the road it needs an ordinance... He advised that the resort tax
money is very expensive, but the Village is a community first of residents that live here and
those are the people that the Council needs to protect, not the people that fly in once or
twice a year.
Raheb, resident — 128 Balfour Drive, advised that there was a resolution passed at the
last meeting involving the Security Assessment, which was stated as having full Civic
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105
Association involvement. Mr. Raheb stated that the Civic Association by-laws state that,
when involving property assessments, it must be done by all the members, which was not
done. He advised that there was an agreement between the Village and the Civic
Association, in 1986, which states that the Association is hired as an agency for the tax
district, for the purpose of getting a security guard and security bids and, therefore, prior to
any contract signed by the Civic Association, it must have a written document from the
Village Manager, prior to making any agreement. Mr. Raheb stated that, based on his
understanding, there has not been any such agreement, in writing, from the Village
Manager and he has the documents from April and May of 1998, which the Village did not
authorize in writing. Mr. Raheb stated that he is also concerned that one of the members
advised that Mayor Berlin is a legal representation, in some cases, for Kent Security, Mr.
Alexander, and represents them. He has a problem because the statutes specifically state,
in Article 2 Subsection 8 of the Florida Constitution, in Section 112313 and 1123143, that
there must be full disclosure of any kind or probable conflict of interest that may exist. Mr.
Raheb stated that Mayor Berlin did not abstain in the last ruling, when it came to the
assessment increase, and he wants to know why he didn't disclose it. He advised that he
intends to file a complaint with the Ethics Commission, in regards to the Mayor's behavior.
Mayor Berlin stated that Mr. Raheb has already discussed this alleged conflict matter with
the Village Attorney. He advised that the Village Attorneys' office has very clearly and
specifically advised him that there was no conflict of interest and there is no conflict of
interest. Mayor Berlin advised that given the fact that Mr. Raheb has raised this, he would
like the Village Attorney to publish an opinion on this issue, because he doesn't want this
hanging over.
10. ADJOURN: There being no further business to come before the Council, a
motion was offered by Assistant Mayor Tantle_ff and seconded by Councilman Jacobi to adjourn.
The motion carried unanimously (4-0), with Councilman Gorson absent, and the meeting
adjourned at 6:48 p.m.
Mayor Howard J. Berlin
Attest:
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Jeanette Horton, MMC
Village Clerk
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Regular Council Meeting 10/15/2002 14