HomeMy Public PortalAbout01 09 15 MeetingMINUTES OF THE REGULAR MEETING AND PUBLIC HEARING HELD BY THE TOWN
COMMISSION OF THE TOWN OF GULF STREAM ON FRIDAY, JANUARY 9, 2015 AT
9:00 A.M., IN THE COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD,
GULF STREAM, FLORIDA.
I. Call to order.
Mayor Morgan called the meeting to order at 9:00 A.M.
II. Pledge of Allegiance.
The Pledge of Allegiance was led by Mayor Morgan.
III. Roll Call.
Present and
Scott W. Morgan
Mayor
Participating:
Robert W. Ganger
Vice Mayor
Joan K. Orthwein
Commissioner
Thomas M. Stanley
Commissioner
Donna S. White
Commissioner
Also Present and
John Randolph
Town Attorney
Participating:
William H. Thrasher
Town Manager
Rita L. Taylor
Town Clerk
Garrett Ward
Police Chief
Danny Brannon
Engineer
Julio Martinez
Resident
Christopher O'Hare
Resident
Martin O'Boyle
Resident
Christine Dehaseth
Coalition
IV. Minutes.
A. Regular Meeting & Public Hearing 12 -12 -14 @ 9:00 A.M.
There were no changes. Vice Mayor Ganger moved the approval of
the minutes and the motion was seconded by Commissioner Stanley with
all voting AYE at roll call.
V. Additions, withdrawals, deferrals, arrangement of agenda items.
Attorney Randolph asked to add Reimbursement for Attorney
Sweetapple and it was placed under item IX B (Changed Item B to
C) .
VI. Announcements.
A. Regular Meetings and Public Hearings
1. February 13, 2015 @ 9:00 A.M.
2. March 13, 2015 @ 9:00 A.M.
3. April 10, 2015 @ 9:00 A.M.
4. May 6, 2015 @ 9:00 A.M.
5. June 12, 2015 @ 9:00 A.M.
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Mayor Morgan called attention to the next meeting date of February
13, 2015 and asked if anyone had a conflict with this date and none
were acknowledged.
VII. Communication from the Public (5 min. maximum)
The Mayor asked if anyone wanted to speak and Mr. Martinez was
recognized.
Mr. Martinez was recognized and stated his name and that he lives
in Place Au Soleil, that he was the former president of the
Homeowner's Association and has had the privilege of working with
most of them in making the Town much better. He came to reach out,
as he is now retired and has a little bit of extra time, so he wanted
to come back and give to the Town. He stated that it was an honor
living here. He stated that all he could say was Rita and Bill
Thrasher were not perfect, but that he wouldn't trade them for
anybody else. He said that as far as the Town's Commission is
concerned, they do a phenomenal job and when he walked around any
neighborhood in this Town of Gulf Stream it was phenomenal what they
have going on. The Chief of Police, same thing, crime rate extremely
low. When he looked at other towns and tried to see what's perfect,
he found that it was this one right here. So he's talking from the
bottom of his heart and stated that the Commission would have to take
a pay cut next year, as they are getting paid too much money for what
they're doing. He said, you guys on a bad day are better than
another Town Commission's best person on their best day. He has
spoken with other town commissions and stated that they do really
give a lot. He just didn't want that to go unnoticed. The other
thing he wanted to share with them is, when the Pledge of Allegiance
comes up, there are a lot of people who fought for this country who
can't get up, who would pay anything in the world to stand up when
the Pledge of Allegiance comes up. The disabled who fought for this
Country and as far as he's concerned, living here in the Town of Gulf
Stream, he's living the American dream and it doesn't matter where he
is in the world, when he hears the Pledge of Allegiance, he stands up
with respect for all the soldiers, and the folks who have given us
all the freedoms that we have today. He said you guys deserve all the
credit for what you do and he didn't want it to go unnoticed. He
said they could count on him to be here whenever needed.
Mayor Morgan stated that they did appreciate his comments very much.
Mr. O'Hare was recognized and stated, Happy New Year commissioners
and staff, 2015 was going to be significant. He stated that about a
year ago, he told them about the handicap access violations in Town
Hall, and the poorly designed ramp in the parking lot and voile a new
ramp was built. He told them about the restrooms, voile, they have
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been remodeled. He told them about the poorly designed security pad
and now he noticed that a new pad had been installed lower and said
very good. He also stated that he told them about the locked doors,
fire exists that have to be opened during Town Hall and now they are.
He told them about social security numbers on the Town's website and
now they're gone. He stated that while he was on the subject, the
lock on the restroom doors was too high and that a handicapped person
couldn't use them. He stated that the ramp needed a railing and he
was just telling them this so a lawyer didn't come in here and sue
them. Just for their information. He stated that when he sees a
problem he wants to fix it and when he sees something wrong he wants
to right it. About six months ago, Mr. Sweetapple, on behalf of
Mayor Morgan, told him to dismiss all his complaints against the Town
and in exchange the Town would exclude me from the forty page RICO
action that was prepared at that time against Mr. O'Boyle and
himself. It was a take it or leave it offer. A few months ago Mayor
Morgan made the very same take it or leave it offer again. He
doesn't hear very well, so sometimes he has to go back and read the
minutes to know what happened at the meeting. Now that he has
examined those minutes he finds that the Commission has given no
authority to Mr. Morgan to act on their behalf in these legal
matters, except for some BAR complaint which he doesn't know anything
about. He stated that Mayor Morgan has acted without Commission
knowledge, direction or approval. He asked if the Commission wanted
that to continue or give him authority to act on their behalf with
the attorneys? There was no answer. He continued that the threat of
an impending RICO claim against him was terribly debilitating, it was
disturbing to him and his family, not knowing if people were now
casting him in the roll of the Town's ugly description. He said it
was stressful and destabilizing not knowing if he would be charged
with organized crime and have to defend himself. He asked them all
again, if they would retract their previous claims that he conspired
to defraud the Town He thanked them very much.
Mayor Morgan advised Mr. O'Hare that this was a public comment
section not a Q & A. He also asked if there was anyone else.
Mr. O'Boyle was recognized and stated that his name was Martin
O'Boyle, 23 Hidden Harbor Drive, Gulf Stream. That he had a few words
to say but before he said them he wanted to respond to Mr. Martinez.
He stated that the United States Supreme Court allowed him to sit
down during the Pledge of Allegiance. He stated that the United
States Supreme Court was one of three bodies of the government. He
stated that if you didn't like what the Supreme Court does you should
petition them to change it. He stated that he came here today in
peace and with the hope that the Town Commission wished to end the
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litigation and expense between them as he sees it spiraling out of
control, something that he didn't want to see happen and he assumed
the Commission didn't want to see happen. He stated that the bills
were going to be in an area that none of them probably ever imagined
and so it was in this spirit that he requestd that the Commission or
the Council, as the case may be, agree to a sit down with our Counsel
and with them as there's no lose and all win. He stated that if
nothing could be resolved they'd lose nothing, if something could be
resolved they'd save him, and them a great deal of money and there
are other thorny items that could certainly be put into a settlement
agreement with the plethora of lawyers up there now. Despite what he
just said, he asked that they please don't make a mistake that his
desire for peace is laced with fear. So he wants to make it clear
that he fears not our Mayor, Commission or solicitor nor their
illusive RICO action. But nonetheless he thinks it's in everyone's
best interest to try to come to a resolution recognizing no loss, all
gain. He said that unfortunately he's been out of town for the last
few months and has not been at a meeting, but he's watched them and
said they are great on TV. He also stated that they have a decorum
policy that's not being enforced. He asked that either the solicitor
or the Chief of Police to please revisit the decorum policy and
enforce it as it should be. He stated that last night he read the
Agenda and he saw a new sign ordinance. He asked where that came
from and were we going to talk about it later. He thanked him for
allowing him to speak.
Mayor Morgan advised Mr. O'Boyle that this was a comment period, and
that question and answer would be brought up later in the agenda and
that he would be able to ask questions at that time.
Mayor Morgan asked Mr. Brannon about the undergrounding report.
VIII. Reports.
A. Utility Undergrounding - Danny Brannon (Engineer)
Mr. Brannon was recognized and stated Danny Brannon, Brannon &
Gillespie glad to be here this morning. He advised that as he had
indicated at the last Commission meeting, they were expecting the
prints from the contractor and they did get them the next day and
they have been forwarded on. The binding cost estimate from Florida
Power and Light Company was delivered this morning at 8:30AM. He
said they haven't looked at them yet but they have it in their hands
and now can move forward with that. He said that right now in Phase I
it appeared that they're about 14 of 1% over budget of their expected
expenses to complete the project are on track, they are pretty close
as they may not have used all the landscaping money, but they're very
close on the budget on Phase I.
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Commissioner Ganger posed the following question asking if that
included the contingency in Phase I or just the budget.
Mr. Brannon replied that it's in the total budget including the
contingency.
Commissioner Ganger said, so we've used the contingency.
Mr. Brannon replied yes and that's indicated on page 5 of their
packet. The demonstration street light from the vendor is being
shipped and they're expecting a local distributor to be contacting
them. They will be delivering it to the Town Hall soon and they will
get it installed. They expect to get it in a week or two. He stated
that those were the main points of the status at this point. He said
they will be moving forward with the design work to try to get their
packages put together to go after bid for Phase 2 as soon as
possible.
Commissioner Ganger asked if the contingency in the initial budget of
Phase 2 was proportionate to the contingency in Phase 1.
Mr. Brannon replied that Phase 1 is 2.4 million and Phase 2 is 3
million.
Commissioner Ganger asked if Mr. Brannon thought that, based upon
experience, in using the contingency in Phase 1 that there really
isn't a contingency in Phase 2, or were they separate issues.
Mr. Brannon stated that he thought that Phase 2 would be tight. He
thinks that it is going to consume the contingency of Phase 2 also.
He stated that some of it had to do with the delays in getting AT &T
and Comcast executed. He said that they had other projects that
they've seen in the past that were dragging out because of this.
Mr. Ganger stated that they had already paid for AT &T last December
for the upcoming year and asked if there was any way they can wiggle
out of that.
Mr. Brannon stated that AT &T's contract said that they estimate their
costs to convert and that the building will be actual and it will be
trued up at the end of construction. So they were paid their
estimated cost. He stated that with Comcast, typically their
estimated costs are their cost. AT &T's varies and it generally will
be a little more than they estimated.
Commissioner Ganger asked if we had an active program to figure out
if we can keep ourselves from overspending this budget because we've
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already paid for it. He paid for it, Mr. Morgan paid for it, they
all paid for it.
Mr. Brannon stated yes I think we had 50% of the project cost paid up
front when the residents were given the option of paying upfront or
financing.
Commissioner Ganger said no one
residents of this community and
be presented that fundamentally
shave from the estimated costs
emphasized that overspending on
not happen.
would want to go back to the
say oops. He believed a plan should
says was there any opportunity to
so that they do not overspend. He
this project is something that must
Mr. Brannon indicated that they worked very diligently to keep the
costs down.
Commissioner Ganger said he appreciated that and a contingency is
just what it is. The contingency is there because you don't know
everything and to make sure that they've got something in there for
what they don't know. They now had a years experience actually doing
the job so he thinks they would be better served now to go back and
say was there any way they could spend more efficiently in Phase 2 so
they don't overspend. Mr. Ganger said he hated to be a broken needle
on this and apologized to the Commission, commenting that he put a
lot of his time on this over the many years and hated to see it go
off the tracks.
Mayor Morgan stated that these are good points and asked Mr. Brannon
to take it as gentle encouragement.
Mr. Brannon stated that he would.
Mayor Morgan asked if there were any other questions and thanked Mr.
Brannon.
Mayor Morgan called on the Town Manager regarding ethics training.
B. Town Manager - Ethics Training
Mr. Thrasher stated that just as a reminder as of January 1, 2015,
all elected officials had to go through additional training, 4 hours
of training, there's 2 hours on ethics, 1 hour on open meetings and 1
hour on open records. He is expecting that the Florida League of
Cities will provide the opportunity for them to do that on line
rather than set up a special meeting here or somewhere else. But as
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soon as that is finalized he said he would make sure they have that
information, most likely that very same day.
Mayor Morgan asked when this had to be completed by.
Mr. Thrasher advised that the information that he had so far is March
31st so that gave them about 90 days from January 1st. However, there
weren't any online training options right now. He stated that the
Palm Beach County League of Cities had a Palm Beach State College
opportunity, he thinks in the middle of the month. He stated he had
been informed repeatedly that the Florida League of Cities was
developing an online training program and as soon as he had that
information he would pass it on to them.
Mayor Morgan thanked Mr. Thrasher. He advised that the Architectural
Review Board will meet on January 22nd and he looked forward to the
minutes of that meeting.
C. Architectural Review & Planning Board
1. Meeting Dates
a. January 22, 2015 @ 8:30 A.M.
b. February 26, 2015 @ 8:30 A.M.
C. March 26, 2015 @ 8:30 A.M.
d. April 23, 2015 @ 8:30 A.M.
e. May 28, 2015 @ 8:30 A.M.
D. Finance Director
1. Financial Report for December 2014
There were no comments or questions regarding the report and Mayor
Morgan declared it approved as submitted.
E. Police Chief -
1. Activity for December 2014
There were no comments or questions and it was approved as submitted.
IX. Items for Commission Action.
A. Ordinance No. 15/1; AN ORDINANCE OF THE TOWN
COMMISSION OF THE TOWN OF GULF STREAM, PALM BEACH
COUNTY, FLORIDA AMENDING CHAPTER 66, ZONING, OF THE
TOWN CODE OF ORDINANCES, AT ARTICLE VII, NORTH OCEAN
BOULEVARD OVERLAY DISTRICT, BY DELETING SECTION 66-
327, SIGNS, IN ITS ENTIRETY; FURTHER AMENDING ARTICLE
VIII SUPPLEMENTAL DISTRICT REGULATION, DIVISION 7,
SIGNS, BY DELETING SECTIONS 66 -446, 66 -447 AND 66 -448
AND REPLACING SAID SECTIONS WITH REGULATIONS WHICH
ESTABLISH THE TOWN AND RENUMBERING EXISTING SECTION
66 -449, UNDERGROUNDING OF UTILITIES, AS SECTION 66-
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450; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL
OF ORDINANCES IN CONFLICT; PROVIDING FOR CODIFICATION;
PROVIDING AN EFFECTIVE DATE, THIS 9TH DAY OF JANUARY,
2015.
The Town Clerk read Ordinance 15/1 by title.
Mayor Morgan advised that this was an ordinance that they had all
reviewed and asked the Town Attorney to explain the significance of
it.
Mr. Randolph stated that he made a couple of grammatical changes in
the ordinance that they had before them that he'd like to go through.
First of all at 66 -446A he added the word "of" so it reads "the
purpose and intent of the regulations in this division is to
establish content neutral graphic controls to the promotion (of)
identification ". He didn't think the word "of" was in the documents
they had in front of them. He also changed Item 6 to read as
follows: allow the proper placement of legible and effective signs
while avoiding the over concentration and excessive height, bulk,
density and area of signs placed in the Town. There is a comma out
of place, but I don't think that is substantive enough to bring to
your attention because I can't find it right now.
Town Clerk advised that it was on page 5.
Mr. Randolph stated Item F on page 5, it said that no signs other
than government signs, are permitted on public property or within the
rights of way and he didn't think that they had the word town
inserted in the document they had, it just said rights of way. He
reminded there has been a challenge as to the facial
constitutionality of the current sign ordinance which is contained
within 66 -466 and 66 -448. That ordinance draws distinctions between
political signs, real estate signs, and other kinds of signs.
Although he felt that the existing sign ordinance is appropriate,
because of the fact that there is a challenge to the
constitutionality of the ordinance, he had prepared this ordinance
in an attempt to make their ordinance content neutral. He said that
some say that if you have to look at the content of a sign to
determine whether it's legal or not, that it's not content neutral
and therefore, not constitutional. He pointed out this ordinance had
been drafted in a way so as to not distinguish between the type of
sign or the language on a sign, it simply provided regulations
relating to signs generally and it has a definition of sign, it has
time, place and manner regulations pertaining to signs and that's
what they can regulate, time, place and manner, not content. So it
has provision that states no bigger than 4 feet in height including
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the supporting pole. The sign face of any sign shall not exceed 4
square feet. Each property in the Town shall be permitted to have a
maximum of 12 square feet of sign face. All signs should be set back
10 feet from any property line. No sign shall be erected or placed
such that it blocks the views of any government sign or the sight
lines of traffic street signs or traffic signals. No signs other
than government signs were permitted on public property or within the
rights of way. No sign may be attached or fixed or painted or
otherwise placed on any dwelling or any other building associated
with the dwelling, including, but not limited to sheds, carports,
garages and pool houses. The government signs are not subject to the
restrictions in Subsections A through G above. There is an exemption
for mailboxes which are regulated by the Federal Government to be
allowed within the rights of way. So that's the purpose of this
ordinance. We have also deleted from your Code that section relating
to signs at Section 66 -327 which states signs shall be prohibited
within the North Ocean Overlay District except the following. And
then it distinguishes between the types of signs that can be allowed
in that district. He thought it best to delete that section in its
entirety and just have a straight regulation in regard to time, place
and manner of signs in general so as to not allow for exemptions for
real estate signs, political signs or even make any distinguishing
remarks between those. He stated that he would be happy to answer any
questions that they may have in regard to this. Rita had given it to
them in advance so they would have an opportunity to look at it and
ask any questions that they might have. I think it's important that
you look at 66 -446 which sets forth the legislative purpose and
intent. He thought, for the record he would just go through those. To
preserve, protect and promote the public health safety and welfare in
general. Preserve and enhance the aesthetics and physical appearance
of the Town, protect and preserve the image character, style and
quality of life that the Town desires. To minimize visual
distractions. To safeguard the public views and nature of the Town's
streets, etc. etc. He stated that you had it all so it didn't need
to be read. But the whereas clauses recited some of the case law
relating to signs and the constitutionality of signs and provided
that although we are a municipality, may regulate aesthetics that we
need to make sure our ordinances are content neutral and are simply
time, place and manner restrictions. So that's the purpose of this,
he recommended it for first reading today and second reading at a
subsequent time.
Mayor Morgan asked if there were any questions of Counsel.
Commissioner Ganger said he had a very general question which was
when this ordinance is eventually approved and becomes law, would
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people notice the difference? Just a general question, it seemed to
me that ...
Mr. Randolph stated that he was not sure if they would notice.
Commissioner Ganger continued and said he appreciated and understood
and applauded Mr. Randolph for taking the time to think this through,
but he read it 2 or 3 times and he had to say that it's just common
sense almost. It follows the law and it's...
Mr. Randolph stated that he didn't know if they would notice the
difference but this would allow a sign to be 4 square feet, they now
have a distinction between real estate signs and other signs and
their real estate signs are only required to be 2 square feet. In
answer to your question, he didn't know how much people would notice
the.difference between a 2 square foot real estate sign and a 4
square foot real estate sign. But it was a change and it's one they
needed to give consideration to prior to adoption of this ordinance.
He said they needed to be aware that there would be some changes.
Mayor Morgan stated that he thought there would be some changes, he
agreed with Comm. Ganger, he didn't think it was terribly
significant, he thought facially our current ordinance is
constitutional, however, the Courts do appear to be split on
interpreting a number of these provisions and so this ordinance goes
a long way to essentially tracking the middle and allowing he thinks
a more neutral interpretation of the ordinance which protects us from
lawsuits such as the one that's been vowed against us on the current
ordinance. So if this goes toward helping protect the Town, then he
thinks we should do it.
Commissioner Orthwein stated that she agreed.
Mayor Morgan asked if there were any other questions or questions
from the public?
Mr. O'Hare was recognized and thanked the Mayor for allowing him to
talk on this law before it was passed. He understand Judge
Middlebrooks had told the Town that existing ordinances were
constitutionally faulty. Mr. Randolph evidently disagreed with Judge
Middlebrooks. The proposed replacement ordinance is confusing to him
and so he knew how to properly comply and avoid a code enforcement
action, he asked the Commission for some clarification. First, is it
correct that a nonconforming sign would be able to remain?
Attorney Randolph stated that he did not think that temporary signs
would be something that would be able to remain, but nonconforming
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signs that are part of a structure such as a sign that's affixed to a
condominium and has been there prior to the adoption of this
ordinance, would be grandfathered in, but he doesn't believe that
anything that is of a temporary nature would be grandfathered in.
Mr. O'Hare thanked Attorney Randolph and stated that he agreed with
the Town's purpose and keeping Gulf Stream beautiful. He didn't want
to see a whole bunch of signs either, he was concerned about the Gulf
Stream Club, the Gulf Stream School and said there were a lot of
existing signs that don't conform and if they once conformed and are,
therefore, not conforming, that they should be exempt from this kind
of regulation. He said Mr. Randolph did a great job summing up the
ordinance. The proposed ordinance defined sign as any object
manufactured in any manner used for attracting the attention of the
public to any subject. That's broad and he can understand why they
need it to be broad. The sign can't be any more than 4 feet above
the ground, it can't be any bigger than 4 square feet, which is 2 x
2, and can't be more than a cumulative 12 square feet which is 3, 2 x
2 signs or less if you count both sides. The sign must be 10 feet
back from the property line, it can't be attached to the house, it
can't be on public property or in the right of way. He said he took
some pictures around Town, and he wondered if he could give them to
the Clerk if the Commissioners are interested in following along with
him or he could just show them to the camera.
Mr. O'Hare mentioned Lemonade sign, holiday lights, inflatable santa,
informational signs, service entrance, beware of dog, no trespassing,
ADT, Comcast, Halloween decorations, signs that do not conform to the
Town's ordinance, signs on vehicles and asked if they would be exempt
and if they would be enforcing this code on AIA. He pointed out that
the sign in front of the Gulf Stream School was never permitted so it
can't be grandfathered.
Mayor Morgan stated that he would defer to counsel on that but he
thinks that rights of way that are governed by the State preempting.
The Mayor commented that quite a bit of work has been done here and
Mr. O'Hare has raised some interesting questions. He asked Mr.
O'Hare if it was his intention to file suit against the Town should
they pass this ordinance based on these signs in these pictures.
Mr. O'Hare stated that he was having trouble hearing.
Mayor Morgan repeated the question.
Mr. O'Hare stated that it is his understanding that a citizen did not
have standing to force a Town to enforce a law. He had no intention,
he was trying to protect the Town and do the right thing. You're
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passing an ordinance that's broad and perhaps it needs to be better
defined. We've got a lot of ordinances that are broad and it's left
to the discretion of Mr. Thrasher if he wants to bring someone to
task on it and as a property owner I'd like to comply with the law.
It's tough when you don't quite know what the law is so I'm asking
what the law really is, Mr. O'Hare said.
Mayor Morgan thanked Mr. O'Hare and advised him that he gave them
food for thought.
Attorney Randolph stated that he didn't know if we had all the
answers today and thinks he raised some good points such as the
child's lemonade stand. The problem when you try to make an
ordinance content neutral, is when you start to make exceptions, even
for a child's lemonade stand, that could create problems so those are
issues that you may want to give consideration to for a second
reading but you raises issues that were very legitimate but the more
exceptions you allow, the more opportunity your ordinance becomes
subject to attack.
Mr. O'Hare stated that he knew Mr. Randolph had a tough job and this
is particularly tough when you have federal constitutional issues
involved and try to keep the Town beautiful, but for people on this
side of the podium who have to follow the law, clear direction is so
much better than leaving it up to the discretion of whether one
person's lemonade sign is okay for a day, but someone else's sign of
Mr. Thrasher dressed as Napoleon is not okay so he's trying to be
clear. He thanked them for their comment.
Attorney Randolph stated that he thought they could be as definitive
as they can with the definition of sign and it's not a definition
that they just made up, it's a definition that they've seen in
ordinances that have withstood constitutional attack.
Mayor Morgan stated that they had to have common sense on this, it's
palpably absurd to say that a lemonade stand put up by a child for a
couple of hours to sell some lemonade on the street is going to
somehow fall afoul of an ordinance and deserves some sort of
prosecution. We're all adults, we're all family members, we're all
part of a community and he thinks the application of our codes has
always been with the best interests of our residents at heart and to
try to apply things fairly and reasonably and he would expect that
this ordinance would be applied in the exact same way.
Mr. Martinez stated to Mr. O'Hare that he appreciated the energy he
was putting into trying to make the Town a better place and certainly
well meant, but on the other hand when he walked around the Town he
thinks when you look at the intent, that lemonade stand and those
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young girls that stand there with their mother or parents, the intent
for them is very wholesome. He didn't think anyone ever complained,
and that it came from a kind place in the heart so as human beings
they had to look at things logically for what the intent of the sign
is, is it to defame somebody? Or are those signs just good will, it's
just a Norman Rockwell picture as far as he's concerned. He stated
that as he has walked around and seen those little girls with the
lemonade, they certainly don't bother him and anyone who walked
around or he talked to in the neighborhood had never brought it to
his attention, not that he's the voice of Gulfstream, but he tries to
think about things logically. As far as Santa Clauses and Halloween,
they are holidays that are celebrated across America and people put
those up with good will. Some people go overboard and do nicer
Halloween decorations and those were different signs. So at the end
of the day what they have to do is look at things from human nature,
what's the intent of the sign, are they trying to defame somebody, do
we associate Bill Thrasher or anyone in the Town as somebody more
deviant. He said he didn't know if that was wholesome and he didn't
want his kids or grandkids walking around and seeing that sign. He
stated that he would never mind his kids seeing someone with a
lemonade stand or Christmas sign. He thinks that they should look at
it as far as the intent. He said he know he's doing a lot of work
and would be more than glad to help out and align our visions
together. We can all work together to make this a better Town
because the one thing he would agree on is there's a lot of talent
here and he didn't want to fight against it but be with it. And
honestly like he said when he first came over here, you guys are
doing a phenomenal job.
Attorney Randolph asked if he could address that statement and put on
the record that he understands this gentlemen is good at intent. But
the point he is trying to make to you is that you can't regulate the
intent, it must be neutral so that's what they're trying to do with
this ordinance, to make the content neutral so they're not dealing
with a sign that's allegedly defaming someone or a sign that's
posting a property for sale, that's what they're trying to avoid.
Commissioner Ganger stated that the transient nature of some signs, a
plumber that pulls into a driveway with a truck that says Joe's
Plumber is not a sign as he thinks of it, it's for his commercial
property, is doing a job and identifying who he is and off he goes.
He thinks to some extent we may want to massage this to make it
clearer as to moving or transient signs...
Attorney Randolph stated that he didn't think they needed that as
this ordinance deals with signs on property.
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Commissioner Ganger said okay, but the photograph shows.. again to
get down to common sense, a truck that's parked in your driveway with
a sign on it is a transient not a permanent sign, it's not even a
sign that's likely to be there overnight, it's just there for a short
period of time. To me your proposed language is entirely clear, that
it would not be considered a sign as defined.
Attorney Randolph added that that was his intent. They can't
regulate every vehicle that goes through the Town.
Mayor Morgan stated that he thought his reading was correct.
Mayor Morgan recognized Christine Dehaseth who stated that it's a
shame that we have to get to this point to look beyond what is
natural and common nature and intent and good hearted and as part of
a community the idea to protect the image and character and quality
of life is wonderful. She understood that it has to be content
neutral. She said she would just like to say as a parent and many
parents over at Gulf Stream School, to drive by and try to explain to
your 4 or 5 year old what a douche bag is because of signs in front
of the Town Hall is horrible. She understood it has to be content
neutral, but cautioned not to be fooled that the decorum has to
extend long and well beyond this Commission's chamber. It's gotten
to the point where it's ridiculous and she's sad to be at this point
she said.
Mayor Morgan thanked Ms. Dehaseth and stated that there is only so
much that they could do, whether it's upbringing, or attitude or
narcissism whatever it is, people want to act in that fashion and if
it's something that is constitutionally protected there's little that
can be done about it. They appeal to the good nature as she and Mr.
Martinez did, to act appropriately with decency for the community in
which we live and that's the nature to which you appeal and hopes
that behavior will change in the future.
Mayor Morgan recognized Mr. O'Boyle who said: Good morning again. The
first amendment of the constitution protected freedom of speech. It
does not protect the freedom of speech of someone saying hello how
are you, it protects the other side that is unpopular speech.
Granted there's popular speech and unpopular speech. The unpopular
speech is protected by the Constitution of the United States and I
would assume that the residents of Gulf Stream, the people in the
County of Palm Beach, the State of Florida and United States of
America would respect the law of our land. That's all I have to say
about them. Mr. Randolph I was writing quickly and I didn't know if
what I wrote was correct. So, if I can ask, did you say that the
existing ordinance is constitutional?
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Attorney Randolph stated no. He indicated that the Town had an
ordinance in place at 66 -327 and 66- 446 -448, that's been in existence
for a long time that the Town, until recently, hadn't had problems
with. However, because that ordinance is being challenged, he
believed that it is right and right for the Council to look at it and
consider the content neutrality, and the time, place and manner of
restrictions in the way it's been addressed within this ordinance.
Mr. O'Boyle stated that he understood but asked if he was correct in
saying he heard you say the existing ordinance is constitutional?
Attorney Randolph stated that he didn't know that he said it just
like that.
Mayor Morgan stated that he believed it was, he thought our ordinance
was constitutional, but as you know, because you filed the lawsuits
involving it, there's case law across the books. Judges interpret
things in myriad fashions, there's uncertainly there, particularly
when you get into first amendment law, as you know. And so all we're
trying to do is clarify that and make it totally content neutral so
that we avoid lawsuits such as the one you would bring against the
Town. So is something constitutional, is something not
constitutional, that's up to the Courts to decide. The Town is
trying to prevent lawsuits, trying to get the Town to continue to
function as it always had functioned without the distractions and
expenses of lawsuits brought by people like him.
Mr. O'Boyle stated that he was in full agreement with Mayor Morgan's
statement that he made. He stated, just so I'm clear, you believe
notwithstanding the order of the Court that the present ordinance is
constitutional.
Mayor Morgan stated he did, that's his opinion.
Mr. O'Boyle asked Mayor Morgan and absent the content neutral
provision, you would agree that it's constitutional as well Mr.
Randolph?
Mayor Morgan stated to Mr. O'Boyle that they did questions and
answers here and he would be glad to give his opinion, but he thinks
for counsel to give a legal opinion based on an ordinance that is
part of a litigation would be inappropriate. He didn't think that he
should respond to that sort of question for whatever that's worth. He
stated that he is not involved in that suit. He thinks that's
probably the extent of it and if he wanted to comment on the
ordinance that's being considered right now, then it would be
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appropriate. But to further go into what you have filed a lawsuit on
and is subject to Court review would be inappropriate at this time.
Mr. O'Boyle stated fair enough and asked Attorney Randolph if he
believed the new ordinance is constitutional.
Attorney Randolph replied yes.
Mr. O'Boyle said and you as well Mr. Morgan?
Mayor Morgan replied yes I do.
Mr. O'Boyle replied that's fine. He said he did not see what Mr.
O'Hare showed the Commission but did get a little glimpse of it, but
he didn't get any answers to his questions. He then asked the Mayor
if he intended to answer the questions regarding those various
inquiries?
Mayor Morgan stated that he thought he was raising questions for
their consideration that's why he asked him was he intending to
pursue legal action based on the differences he found in the
ordinance and in the photographs of signs that he had presented to
US. He said no, that he was just trying to give the Town essentially
food for thought to consider with the passing of this ordinance.
Mr. O'Boyle stated right and asked Mr. O'Hare if he was expecting a
response to his questions.
Mr. O'Hare replied that he just wanted to know what to do, how to act
and what use he could put his property to and still be lawful because
once the ordinance is passed, he didn't want to break the law.
Mayor Morgan replied sure, let's get the ordinance passed and it's
pretty much self explanatory, he thought it's clear, Mr. Ganger
stated he thought it was clear. Mayor Morgan thought a number of
these things didn't even fall under the purview of this ordinance.
Attorney Randolph stated that what they're dealing with here is a
facial constitutionality question. They're trying to address the
facial constitutionally of it. If there's going to be an applied
challenge at some time in the future, then they have to deal with
that at the time. They're not talking about an as applied challenge,
they're talking about a facial constitutionality. We may not have an
answer to some of these questions raised today, and we may have to
deal with that at some future time, he said. He felt several of the
comments that were made were addressed. Commissioner Ganger spoke in
regard to the transient nature of the vehicles. He pointed out that
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they had talked about the lemonade stand and that he answered that in
a purely legal way, saying that you can't distinguish between a
lemonade stand and something else. Those are things from a practical
standpoint that you're going to have to look at down the line, but
they're dealing with a facial constitutionality of the ordinance at
this point.
Mayor Morgan stated well said.
Mr. O'Hare stepped up and said that it's not just a burden on the
homeowners to not be sure that's legal and not be legal, but people
like Lt. Allen here, he's driving around and he has to know what to
enforce. Now if he decides this sign is okay, this sign no, they're
going to throw the book at him. Well that's selective enforcement.
It's not fair to him or any of the other officers to have to make a
distinction driving around town. Is a big skeleton illegal? I'm not
going to bother with that, that's ridiculous but that's the law. The
law should be clear so that everyone understands it. That's all,
thank you.
Mr. O'Boyle stated that he would close with one question directed to
the Mayor referring to Commissioner Ganger and what Commissioner
Ganger said when dealing with trucks with signage. He asked if he
meant that trucks with signage would be permitted in Gulf Stream?
Commissioner Ganger replied that commercial trucks identifying who
the commerce is...it's a plumber .... it's a baker.... it's whatever,
have always been permitted and there's no change as far as he is
concerned versus the current ordinance and this.
Mr. O'Boyle said if it said Mr. Ganger's a creep that's no good?
Commissioner Ganger asked, is that the commercial creep company or
what.
Mr. O'Boyle said it would not be the creep company.
Commissioner Ganger asked so what is it?
Mr. O'Boyle stated that it's just a name making a political statement
which you're allowed to do in America.
Commissioner Ganger asked, for commercial purposes?
Mr. O'Boyle answered, no for political purposes.
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Mayor Morgan stated that had nothing to do with this ordinance. He
stated that Mr. O'Boyle was just raising questions to talk and
pointed out that this ordinance has to do with signs on property, and
Mr. O'Boyle is talking about trucks driving down the street.
Mr. O'Boyle asked so this does not include trucks driving down the
street?
Mayor Morgan stated that's not how he read this.
Mr. O'Boyle asked, and Mr. Randolph?
Attorney Randolph stated that the ordinance speaks for itself, and he
didn't think this was the time for Q & A with regard to what might
happen. He thinks these are all legitimate questions to be raised.
He stated that Mr. O'Boyle heard him loud and clear when he said that
the Town cannot look at the content of a sign to determine whether
it's legal. If it says Mr. Ganger is a creep and it's otherwise legal
under this ordinance, then it's absolutely fine. Whether it says we
love Mr. Ganger or we think he's a creep, that's not something we can
deal with and he thought that's the intent of the ordinance and that
the ordinance speaks for itself.
Mr. O'Boyle asked if trucks with Mr. Ganger is a creep would or would
not be permitted.
Attorney Randolph stated that he would not get into a Q & A with him
with regard to that and he might want to address that in Court when
he goes to Court.
Mr. O'Boyle stated that he didn't want to go to Court, he wanted an
answer as Mr....
Mayor Morgan explained that it is not the content, it's the sign.
Mr. O'Boyle stated that's good enough, thank you all.
Mayor Morgan asked if there were any other comments and recognized
Mr. Martinez.
Mr. Martinez stated that he just had the opportunity to work with the
Police Dept. and being a reserve in Ocean Ridge, the benefit of the
truck signs is for Lt. Allen and Chief Ward to be able to identify
who's working in the development or a house and it makes it a little
bit easier for them. It also helps them to align their vision to see
if they have a decal that says Town of Gulf Stream on the vehicle so
it protects us as homeowners. He thinks those are two different
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things. He stated that personally if somebody had a sign that said
Bob Ganger's a creep, legal or not, it would be extremely
inappropriate. He said if there's anybody he knows on the Town
Commission its Bob Ganger and he always thought when he grew up he
wanted to be like him. But he believed the intent is that all are
trying to work together in making this a better Town. He stated that
right now he found this the best Town around, but if anybody could
share with him what's a better Town, he would be glad to find out
what they're doing and share it. He added that he was just trying to
add a little more dimension as a homeowner.
Mayor Morgan thanked Mr. Martinez and asked if there was anyone else.
If not we have ordinance 15/1 for consideration. Is there a motion
to approve on first reading.
Mr. Ganger made a motion to approve on first reading Ordinance No.
15/1 and it was seconded by Commissioner Orthwein with all voting AYE
at roll call.
The Town Clerk advised that we probably needed a Special Meeting to
go to second reading on this particular ordinance and we had to have
advertising time. She suggested an appropriate time would be during
the last week of January. The 29th is not available so they would
have Monday, Tuesday, Wednesday or Friday.
Mayor Morgan asked Monday is what day?
Commissioner Ganger advised that he is free on January 26th but not so
the remainder of the week. All Commissioners agreed that the Special
Meeting would be held on January 26, 2015 at 9:00 A.M.
Commissioner Ganger asked to have stated the single purpose for the
meeting and was advised it is to have the second reading of the
Ordinance No. 15/1.
B. Items by Attorney
1. Reimbursement for Attorney Sweetapple.
Attorney Randolph reminded that Mr. Sweetapple had been appointed to
represent them in several cases against the Town and advised that his
firm has been sued as a result of its being involved in the Citizens
Awareness Foundation suit. Attorney Randolph further advised that his
insurance company is defending him in these lawsuits but they are
having to be out of pocket for these expenses until their deductible,
which is a $25,000 deductible, has been met. He said that Mr.
Sweetapple has asked that, because this suit results from his
activities on behalf of the Town, the Town Commission handle his
attorney fees up to the amount of the deductible. He stated that he
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brings this before the Commission because of a request that was made
by Mr. Sweetapple that the Commission needs to give consideration to
and that's the issue before the Commission.
Commissioner Ganger stated that he is unaware as to what the
substance of that lawsuit is.
Mayor Morgan explained that it is a lawsuit brought against himself
and Sweetapple based on defamation of character and various other
things. It is a suit brought, in my opinion, to try to undermine Mr.
Sweetapples representation of this town and therefore he would not be
in the position of getting sued had he not taken on our
representation and handled it in the fashion he is handling it. He
has a deductible in his policy and it would seem reasonable to me
that we help cover that expense since he wouldn't be in that position
if we had not asked him to represent the Town.
Commissioner Ganger asked if there is a limitation on how much we
would be helping with since we are also compensating him for his
services as an attorney.
The Mayor explained that insurance policy has assigned counsel but
there is a $25,000 deductible and that's the obligation he would be
responsible for and that's what he is asking for us to cover up to.
Commissioner Stanley asked if we have confirmation that his liability
carrier is going to or currently is defending him in the suite to
which Attorney Randolph replied that his information comes thru Mr.
Sweetapple and he has been given the name of the law firm that is
representing him.
Commissioner Orthwein asked if this is normal and why would we be
paying his deductible.
Attorney Randolph said we would basically be pa
be out of pocket because of the result of being
lawsuit.
It's not as you are paying his deductible so to
compensating him for his out of pocket expenses
defending himself in the lawsuit that he became
he is representing the Town.
ying fees that he will
involved in the
speak but you are
that are involved in
involved in because
Commissioner Ganger asked that if legal expenses can be recovered
would the town get its money back.
Attorney Randolph stated that he would think so but he did not know
the extent to which legal fees are recoverable because he is not
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Town Commission Regular Meeting
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personally that familiar with the lawsuit. He said that could be made
a condition or an addition in the event the Commission chooses to
reimburse those fees if they are recoverable.
Commissioner White asked if this is a common practice to which Mr.
Randolph replied that he had not seen it happen.
Commissioner Ganger commented that one hates to see one's own
attorney being blindsided where in good faith we have asked him to
represent us and he didn't think we would have assumed that someone
would sue him for representing us. He found this whole thing to be
outrageous and disgusting. He felt Mr. Sweetapple's goodwill and his
reputation needs to be defended as does ours. Commissioner Ganger
moved to approve reimbursement of his legal expenses up to $25,000
with the condition that the Town be reimbursed if those fees are
recoverable.
Commissioner Orthwein questioned if it is possible to learn more
about this and is it a common practice.
Attorney Randolph remarked that the matter could be deferred to the
Special Meeting on January 26, 2015 at which he would bring back what
information he could find with regard to previous situations such as
this.
Town Manager Thrasher asked to comment at this point and Mayor Morgan
agreed to the request. Mr. Thrasher stated that no one should
believe that we are not committed to defending this. He reported
that the Town has contingencies sufficient for that loss and, from a
staff perspective, he recommended that the Commission approve the
motion at this meeting if possible. He felt it important that we show
strong support as what we have expected from him.
Mayor Morgan believed Mr. Sweetapple would not be requesting it
unless in good faith he thought it was due and appropriate for the
Town to cover that expense. He pointed out that he trusts him, he has
supported us and been invaluable in putting together the defense to
protect this town and I am in favor of it. The Mayor said if the
Commission wants more information and would want to defer the matter,
that would be O.K. too.
Commissioner Stanley stated that he had not seen a situation like
this either but if it is to be deferred, it should be decided at this
time exactly what the Commission is looking for in order to make the
decision at the Special Meeting. He didn't think a whole lot was
going to happen in the span of 14 days.
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Mayor Morgan thought this request should be approved at this meeting
but would be in agreement to deferring to the Special Meeting if the
Commission would be more comfortable with it.
Commissioner Stanley believed if it is to be approved at this meeting
then we should have a letter advising the name of the law firm
handling the suit on behalf of Mr. Sweetapple's law firm, that they
are indeed handling the case on behalf of the carrier and confirming
the amount of the deductible and their hourly rate, along with the
amount of expense that has been incurred to date.
Commissioner Ganger confirmed that his motion stands with the amended
language as offered herein by Commissioner Stanley. Commissioner
White seconded the motion. Attorney Randolph asked if he is to obtain
this additional information that has been verbalized. Mayor Morgan
confirmed this adding "from Counsel to you as Counsel to the Town ".
Mr. O'Hare asked if he could comment before this is made official
action to which Mayor Morgan answered, yes.
Mr. O'Hare said: This is the first time I heard about this law suit.
It sounds like it's about Mr. Sweetapple doing something wrong.
Attorneys represent Towns across the country but they know when to
keep their mouth shut. Because Mr. Sweetapple might have said the
wrong thing is not the Towns responsibility. Now $25,000, that's
sweet. For you also have to know for months I've been trying to
disqualify Mr. Sweetapple `cause he used to represent me. And, it's
not right, in my opinion, that he is now representing against me.
He's already charged the town $20,000 for that. That's not the towns
fault. He had an obligation to tell you that I was his client and he
didn't. That's Sweetapples fault. For him to charge you $20,000 for
that and $25,000 this ... there is a law against that. It's called
fiduciary responsibility with the public money. Please think
carefully before you continue to spend the public money to defend Mr.
Sweetapple. I agree with you. He's a very unusual attorney with
unusual methods.
Mayor Morgan said: You filed your motion in that case and that will
be judicially decided. Any other questions from the public?
There was no other comment from the public, the Town Clerk called the
role with regard to the motion and the Commission unanimously voted
AYE, in favor of the motion.
C. Items by Mayor and Commissioners
1. Proposed Legislation - Public Record Law.
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Vice Mayor Ganger explained in detail that the Florida League of
Cities and the Palm Beach County League of Cities are mounting an
effort to bring forth some amendments to the existing public records
law and that he and Town Manager Thrasher have attended four
committee meetings in regard to this effort. He further explained
that the State Legislature meets for a very short period each year
and that for this year there are over 500 pieces of legislation that
are being submitted for consideration. As a result, the League has
selected a short list of 10 that they will be supporting for
legislative action and the bills to amend the public records are one
of the 10. He said that the language in the bills is not exactly to
the committees satisfaction but is being refined with caution in that
there is no movement to remove the public records act entirely (it is
a good law) but would make it more difficult for those who are taking
advantage of it. He cautioned that it may not make it thru the
Legislature this year but with the amount of support around the
State, it is expected that this effort will be continued until some
success results.
Mayor Morgan commended Vice Mayor Ganger and Town Manager Thrasher
for their work and the time they have given in this regard as did
Commissioner Orthwein.
Mr. O'Boyle asked to speak and said the following: Thank you Mayor
for this opportunity. I heard what Mr. Ganger said and I think for
the most part, what he said was correct. However I have, whatever I
have in my hand, a article that came out this morning from The
Florida Center of Investigating Reporting. I just want to read you
two quick sections. Number one, in this supposedly RICO suit the
Town's star witness is a fellow named Joel Chandler as you all know.
And Mr. Chandler supposedly filed 200 records requests. And, his
statement here is ... the record requests he filed were none the less
lawful. Meaning they were in accordance with the law. I also point
out Barbara Peterson, for those of you who don't know Barbara
Peterson, Barbara is the head of the First Amendment Foundation in
Tallahassee.
Barbara Peterson was quoted as saying.... Barbara Peterson, President
of the Tallahassee based First Amendment Foundation and the FCIR
Board Member thinks the proposed legislation limits access too
severely. In other words that they are too severe. I don't know a
lot about politics but what I do know is when you have a First
Amendment Foundation on this side and the legislature on the other
side there is usually a compromise or one falls. So, I wouldn't get
too confidant on your position as it applies to the public records
act. And, I just want to say, it cuts both ways. I agree with you
there is some abuse out there, I see it myself. And when you see
abuse it's usually from a charlatan. But then again you see the abuse
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from the other side, which is usually from a Thrasher. So, think
about it, comes from both sides and I think if we ever get one of
these cases to trial, if the Town ever lets us get one to trial then
we are going to start getting results. And when we do, someone here
is going to be apologizing to the other and I really hope it's not
me. Thank you all.
Mr. O'Hare asked if he could take advantage of Mayor Morgan's good
will since you extended that to Mr. O'Boyle to make a 30 second
comment as well. Mayor Morgan said that luckily he is a kind and
understanding man and Mr. O'Hare replied that "actually you are"
because he knows Robert's Rules of Order and he could boot them right
out.
Mr. O'Hare said: Mr. Ganger is right and thru records requests I
actually read the memorandum from Mr. Randolph to the League of
Cities and I agree with a lot of it. Basically what I think might
happen is they might pass a law in Tallassee saying the fee shifting
is appropriate and if you lose a records request you have to pay the
fees of the other attorney. I think that's appropriate. I don't think
anybody should file a malicious action in any regard. But, that's got
nothing to do with a record request. The fact that I can come here
and talk to you with the knowledge I think I have is because of all
the records requests I make. I found out so much stuff and some I
think helped the Town. The issue is, I just got a response to a
request I made 13 months ago. That's just unacceptable. I know Rita,
Ms. Taylor, has been working Saturdays and Sundays and I think that's
also unacceptable on this because if you've got 9 million to spend on
RICO, certainly you could put somebody in there to answer record
requests more quickly. I don't think the problem lies with all these
phantoms making the mal requests but rather with the inadequacy or
you to respond to legitimate requests for records. Thank you.
Mayor Morgan asked if there were any comments from the Commissioners
and there were none.
X. Adjournment.
Meeting was adjourned by the Mayor at 10:35 A.M.
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Recording Secy.
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