Cabinet
Affairs |
T H E C A B I N E T
S T A T E O F F L O R I D A
_________________________________________________________
Representing:
STATE BOARD OF ADMINISTRATION
DIVISION OF BOND FINANCE
STATE BOARD OF EDUCATION
ADMINISTRATION COMMISSION
TRUSTEES OF THE INTERNAL
IMPROVEMENT TRUST FUND
_________________________________________________________
The above agencies came to be heard before THE
FLORIDA CABINET, Honorable Chiles presiding, in the
Cabinet Meeting Room, LL-03, The Capitol, Tallahassee,
Florida, on Thursday, June 12, 1997, commencing at
approximately 9:40 a.m.
Reported by:
SANDRA L. DiBENEDETTO-NARGIZ
Registered Professional Reporter
Certificate of Merit Holder
Notary Public in and For
the State of Florida At Large
_______________________________________________________
ACCURATE STENOTYPE REPORTERS, INC.
100 SALEM COURT
TALLAHASSEE, FL 32301
904-878-2221
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1 APPEARANCES:
2 Representing the Florida Cabinet:
3 LAWTON CHILES,
Governor
4
BOB CRAWFORD
5 Commissioner of Agriculture
6 BOB MILLIGAN
Comptroller
7
SANDRA B. MORTHAM
8 Secretary of State
9 BOB BUTTERWORTH
Attorney General
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BILL NELSON
11 Treasurer
12 FRANK T. BROGAN
Commissioner of Education
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I N D E X
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3 STATE BOARD OF ADMINISTRATION:
4 (Presented by Tom Herndon
Executive Director)
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6 ITEM ACTION PAGE
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1 Approved 7
8 2 Approved 7
3 Approved 11
9 4 Approved 12
10 DIVISION OF BOND FINANCE:
11 (Presented by Ben Watkins)
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13 ITEM ACTION PAGE
14 1 Approved 13
2 Approved 13
15 3 Approved 13
4 Approved 14
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STATE BOARD OF EDUCATION:
2 (Presented by Sherry Plymale)
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ITEM ACTION PAGE
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5 1 Approved 16
2 Approved 18
6 3 Approved 19
4 Approved 19
7 5 Approved 19
6 Deferred 44
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9 ADMINISTRATION COMMISSION:
(Presented by Robert Bradley)
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11
ITEM ACTION PAGE
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1 Approved 45
13 2 Approved 45
3 Approved 45
14 4 Approved 46
5 Approved 46
15 6 Approved 46
7 Approved 46
16 8 Approved 47
9 Approved 47
17 10 Approved 61
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2 TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND
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(Presented by Secretary Virginia Wetherell)
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5 ITEM ACTION PAGE
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1 Approved 62
7 2 Approved 62
3 Approved 62
8 4 Approved 63
5 Approved 63
9 6 Approved 63
7 Approved 63
10 8 Approved 63
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CERTIFICATE OF REPORTER 97
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1 P R O C E E D I N G S
2 (Invocation by Pastor John Croston, Pledge of
3 Allegiance to the Flag, Singing the National Anthem
4 and Recognition of Celebrate America by Secretary
5 Mortham.)
6 GOVERNOR CHILES: Without objection, the
7 resolution is adopted.
8 I think we need a vote allowing the alternative
9 parole commissioners or substitutes.
10 COMMISSIONER BROGAN: I would move approval of
11 the list submitted to the members of the Cabinet.
12 COMPTROLLER MILLIGAN: Second.
13 GOVERNOR CHILES: It's been moved and seconded.
14 Without objection, that's approved.
15 Our next Cabinet meeting will be June 26.
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1 GOVERNOR CHILES: Now we'll start with the
2 State Board of Administration.
3 MR. HERNDON: Good morning, Governor and
4 Members of the Board.
5 The first item of business this morning is
6 approval of the minutes of the meeting held May 28.
7 COMMISSIONER BROGAN: Moved.
8 COMMISSION CRAWFORD: Seconded.
9 GOVERNOR CHILES: They have been moved and
10 seconded; without objection, they are approved.
11 MR. HERNDON: Item number 2 is approval of
12 fiscal sufficiency for a Florida Department of
13 Transportation Alligator Alley Revenue bond in the
14 amount of 65 million dollars.
15 COMMISSIONER MILLIGAN: Move it.
16 TREASURER NELSON: Seconded.
17 GOVERNOR CHILES: Moved and seconded; without
18 object, they are approved.
19 MR. HERNDON: Item number 3 is the recommended
20 approval of the Florida Hurricane Catastrophe Fund
21 budget that was deferred from the last meeting.
22 COMPTROLLER MILLIGAN: Move it.
23 GOVERNOR CHILES: Moved and --
24 TREASURER NELSON: And I will second it. I
25 have some comments that I would like to address to
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1 this.
2 I defer to General Milligan if he wanted to
3 make some comments.
4 COMPTROLLER MILLIGAN: No. I just think maybe
5 the deferral that we had for two weeks served a good
6 purpose to give us all a chance to better understand
7 the provision and modeling and the importance of
8 modeling. And I am supportive of what the
9 commissioner is trying to do and we just need to stay
10 with it.
11 TREASURER NELSON: Governor, the modeling
12 commission has been given a job to do by the
13 legislature. They should have the money to do the
14 job right.
15 My problem is that I believe they have spent
16 last year's budget funds to do the job wrong, when
17 they have come up with this computer model of which
18 they have stamped their approval on a computer model
19 that has the potential of running the rates for
20 homeowners insurance absolutely through the roof.
21 Now, particularly, I just want to put on the
22 record what my objections are.
23 In the commission -- and I give great credit to
24 the personal sacrifice that was done by the
25 commission members, taking a very tough task over the
9
1 course of the year and a half. I have absolutely
2 nothing but praise for the individuals and the staff
3 that took on this task. But the process was flawed
4 in my judgment.
5 And I want to get this on the record. And I
6 wanted the Governor and Comptroller to hear my
7 specific comments about this, sitting as the State
8 Board of Administration.
9 Under the process, a professional team was
10 hired to analyze this computer model, the AIR
11 computer model that would set wind rates for
12 hurricane exposure.
13 That professional team was experts around the
14 country that were hired. That professional team
15 looked at 38 different standards in this computer
16 model. And when it came back, they could not
17 recommend approval to validate 6 of those 38
18 standards.
19 Yet, regardless of the professional team not
20 being able to validated, the Commission overroad the
21 professional team and approved anyway all 38
22 standards.
23 And so, I think that there is a question -- and
24 that's one of the things that I questioned in the
25 commission's process of adoption to say that this
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1 model is accurate.
2 The bottom line on this model, as it is now
3 adopted by the Commission, under the statute it
4 becomes relevant and admissible as a computer model
5 in determining what insurance rates for the wind or
6 hurricane exposure is.
7 I also believe that there were aspects of the
8 public records law that were not adhered to in the
9 deliberation on the specifics of this model.
10 And so, there are a number of things that we
11 think are considerably flawed, we in the Department
12 of Insurance, and that's why we have filed a case
13 under the Administrative Procedures Act to try to
14 reverse the course of what the commission on
15 methodology has done.
16 I hope now, back to the issue of the budget,
17 Mr. Herndon, that the proposed budget, especially the
18 additional funds for more modeling analysis, will
19 avoid the problem in the review of AIR where the
20 standards were voted on by the Commission that I just
21 enumerated.
22 And our concern is not with the model
23 validation. Our concern is the model validation with
24 the procedures that were used, inadequate evaluation
25 and erroneous conclusions.
11
1 Thank you, Governor. I wanted to put that on
2 the record.
3 GOVERNOR CHILES: Thank you, sir.
4 We have a motion and a second. As many as
5 favor, signify by saying aye.
6 THE CABINET: Aye.
7 GOVERNOR CHILES: Opposed, no. The resolution
8 is adopted.
9 MR. HERNDON: Item number 4, Governor, is the
10 Inland Protection Finance Corporation requests that
11 you as trustees convene yourselves also in your
12 capacity as directors of the Inland Protection
13 Finance --
14 GOVERNOR CHILES: We are now directors of the
15 Inland Protection Finance Corporation.
16 MR. HERNDON: We have, in effect, one item of
17 business. -- Note Secretary Wetherell is here as
18 part of the members of the board of the Inland
19 Protection Corporation -- that is approval of the
20 selection of a trustee bond registrar and paying
21 agent.
22 The information provided to your staffs
23 indicated we provided 32 RFPs to prospective vendors.
24 Nine responded. We had a selection committee made up
25 of staffs from several different organizations as
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1 well as our own.
2 They ultimately selected the Bank of New York
3 as the preeminent response. And it's our
4 recommendation that we approve that selection, and
5 then direct the Secretary to reflect that in the
6 minutes of the corporation's business.
7 GOVERNOR CHILES: Do we have a motion?
8 COMPTROLLER MILLIGAN: Moved.
9 COMMISSIONER CRAWFORD: Seconded.
10 GOVERNOR CHILES: Moved and seconded; without
11 objection, that's approved.
12 MR. HERNDON: That completes our agenda.
13 TREASURER NELSON: Governor, for the record, I
14 would like to submit for the record a copy of the six
15 different standards that I just referred to, of which
16 the professional team was unable to validate. And
17 rather than reading the 6, I will submit them for the
18 record.
19 GOVERNOR CHILES: They will be included in the
20 record.
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1 GOVERNOR CHILES: Bond finance.
2 MR. WATKINS: Item number 1 is approval of the
3 minutes of the May 13th meeting.
4 SECRETARY MORTHAM: So moved.
5 COMMISSIONER BROGAN: Seconded.
6 GOVERNOR CHILES: Moved and seconded; without
7 objection, they are approved.
8 MR. WATKINS: Item number 2 is a resolution
9 authorizing the competitive sale of 65 million in
10 transportation revenue bonds for Alligator Alley.
11 SECRETARY MORTHAM: Moved.
12 COMMISSIONER BROGAN: Seconded.
13 GOVERNOR CHILES: Moved and second; without
14 objection, approved.
15 MR. WATKINS: Item number 3 is a resolution
16 authorizing the issuance of a 350 million dollars
17 Department of Transportation revenue bond for
18 Florida's turnpike.
19 COMMISSIONER BROGAN: Move approval.
20 SECRETARY MORTHAM: Seconded.
21 GOVERNOR CHILES: Moved and seconded; without
22 objection, approved.
23 MR. WATKINS: Item number 4 is a report of
24 award of 161.6 million dollars refinancing executed
25 for the Jacksonville Transportation Authority. Bonds
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1 were sold at competitive sale and awarded to the low
2 bidder, and a true interest cost of 5.38 percent,
3 resulting in total gross savings of 16.1 million,
4 about half million dollars annually and present value
5 savings of approximately 8.8 million.
6 COMMISSIONER BROGAN: Move.
7 GOVERNOR CHILES: That sounds very good for the
8 Jacksonville Transportation Authority.
9 SECRETARY MORTHAM: Seconded.
10 GOVERNOR CHILES: Been moved and seconded;
11 without objection, it's approved.
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1 GOVERNOR CHILES: State Board of Education.
2 TREASURER NELSON: May I make a comment before
3 we get into -- on an item relating to Education.
4 Quite happily, I recently received word of an
5 astounding award of 50 million dollars to one of our
6 own private universities here in Florida in my
7 hometown, Melbourne, the Florida Institute of
8 Technology.
9 This is the largest single grant ever made by a
10 foundation to a university in the U.S. And I want to
11 take this opportunity of the Governor and Cabinet
12 assembled here to thank the F.W. Olin Foundation for
13 its extraordinarily generous recognition of Florida
14 Tech.
15 The foundation's president, Lawrence Milas,
16 announced that Florida Tech was chosen because the
17 university represents a substantial opportunity to
18 advance engineering and science education in the
19 southeastern part of the United States. This was
20 just announced just a couple of days ago, and I found
21 about it from the folks back home. And I wanted to
22 share it with you.
23 Most of the funds are going to be used to
24 construct an advanced engineering complex in a life
25 sciences building on the campus so that the industry
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1 trends toward cross functional teams and learning can
2 be mirrored to their needs of engineering and
3 science, and particularly space science students.
4 So we are very proud to have such a gracious
5 benefactor, the F.W. Olin Foundation, and such a
6 deserving recipient in our own state, Florida
7 Institute Of Technology, which will allow us for the
8 future of our state, a lot of which you have been
9 trying to achieve in education, Governor, to produce
10 the high caliber graduates who will so greatly
11 contribute to not only Florida's economy but the
12 global economy. Thank you.
13 GOVERNOR CHILES: Great news. Thank you.
14 MS. PLYMALE: Good morning.
15 The first item is the minutes of the meetings
16 held on April 15 and April 29.
17 COMMISSIONER CRAWFORD: Move approval.
18 SECRETARY MORTHAM: Seconded.
19 GOVERNOR CHILES: Moved and seconded; without
20 objection, approved.
21 MS. PLYMALE: The second item is an amendment
22 to rule 6A-1.09441. This amendment provides the
23 requirements for program and courses which are funded
24 through the FEFP and for which students may earn
25 credits towards high school graduation.
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1 COMMISSIONER BROGAN: Before the vote, if I may
2 just bring you up to speed on this.
3 You know as we are moving toward higher
4 standards, one of the things we that recognized is
5 the necessity to get more young people into higher
6 level course work.
7 To that end, we have begun the process of
8 completely overhauling the course code directory for
9 the State of Florida. And that directory, of course,
10 contains all of the courses that may be offered for
11 credit and also generate funding through for the
12 Florida Educational Finance Program.
13 We took step one, which was to begin with
14 language arts and math classes, and began to cull a
15 good many of the old level one courses that existed
16 in math and language arts.
17 Next year we'll be coming back to you with more
18 courses in different subjects. The idea here is to
19 have some level one course work remain. There will
20 be students who will need level one course work now
21 and in the future.
22 But the idea is to begin over time to cull out
23 some of the undergrowth of level one courses that has
24 become so prevalent in the system over time, and that
25 again will give more youngsters an opportunity to
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1 move into the higher level course work.
2 And we believe ultimately, as Commissioner
3 Nelson mentioned for the university, see them exit
4 high school with the ability to master the Sunshine
5 State standards and be able to go on to that next
6 step.
7 So today takes up, as I mentioned, language
8 arts and math. It identifies via an identification
9 system those courses this year that will be
10 eliminated next year. The districts, however, we are
11 asking to consider as early as this year voluntarily
12 eliminating those courses from their rolls. That
13 will become a requirement then for the following
14 school year.
15 So we just wanted to bring you up to date on
16 exactly what that was and how we are proceeding
17 forward to that end.
18 GOVERNOR CHILES: Very good.
19 COMMISSIONER BROGAN: I will move the item.
20 SECRETARY MORTHAM: Seconded.
21 GOVERNOR CHILES: Moved and seconded; without
22 objection, the item is approved.
23 MS. PLYMALE: Item number 3 is reappointments
24 to the Post Secondary Education Planning Commission.
25 They are all reappointments.
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1 COMMISSIONER BROGAN: Governor, I will move the
2 reappointments for items 3, 4, and 5.
3 SECRETARY MORTHAM: Seconded.
4 GOVERNOR CHILES: Moved and seconded, with
5 items 3 and 4 being approved in block. As many in
6 favor, signify by saying aye.
7 THE CABINET: Aye.
8 GOVERNOR CHILES: Opposed, no.
9 They are approved.
10 MS. PLYMALE: Item number 6 is an amendment of
11 the assignment of lease between the State Board of
12 Education and South Florida Public Telecommunications
13 Incorporated, WXEL. And we do have speakers.
14 SISTER JEANNE: Good morning, like the mayor
15 of Orlando, I can't resist a microphone.
16 However, it seems like I am brought to my
17 knees, and that might be appropriate, also.
18 I have been very concerned since January when
19 the merger was to begin, and it was to begin between
20 Barry-Tel and WXEL. I feel like we have had
21 stumbling blocks put in our way in order for us to
22 serve the people as we would want to come to transfer
23 of that license. The license has transferred as of
24 June 2 to Barry-Tel, and that puts us in a very
25 awkward position.
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1 Up to this time, the WXEL board has been
2 responsible for the management of that station. We
3 have not been able to take any active role in the
4 management. With the transfer of the license -- and
5 I take this very seriously. With the transfer, it is
6 a sacred mandate to us to serve the people in that
7 area as it is mandated in the public television
8 license. To serve the people adequately, we must
9 have some control of the management.
10 For a deferral to take place, since there is no
11 legal reason why the transfer of the license will not
12 take place, it puts us in the very awkward position
13 of having the transfer and then still wondering who
14 is in charge.
15 It will be very necessary for this station to
16 have 800,000 prior to August. With the monies that
17 we have presently put in and my own board saying to
18 me after the transfer of the license, you can do
19 this, another 60 days and another 60 days and another
20 90 days is not fair to the people that the station
21 serves, nor is it fair to people who acted in good
22 faith to take upon themselves this station's running
23 in the way it should to serve the public of that
24 area.
25 So I plead with you not to put us again in that
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1 awkward position. We thought at the end of April and
2 at the end of the legislative session we would be
3 allowed to come together and work on a 50/50 basis
4 with the universities, Regents, as we had proposed.
5 We have acted in good faith. This has not come
6 about.
7 However, you will note in the following
8 amendment that given the transfer of the license,
9 which is fate accompli, we'll continue to work in
10 good faith with the Board of Regents to be partners,
11 because this state needs models of public/private
12 enterprises.
13 However, to force us to postpone accepting that
14 license, which we must do this week, would put it
15 very awkward for us to operate in an upward mobility
16 for that station. And I plead with you not to defer
17 it. It is a very important thing for us not to
18 continue to meet the stumbling blocks.
19 There is no legal reason. If it is a moral
20 political reason, it will take time to unfold it.
21 But I ask and plead with you, not to continue to
22 leave us in limbo.
23 With that, I also know that we will continue
24 the dialogue. I have Mr. Frank Burt with us, who is
25 our lawyer and he can answer any legal questions.
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1 There is so much misinformation regarding this
2 license, that I think it is a very sad thing. In the
3 prayer that was said earlier, it talked about despair
4 and hope. And sometimes I feel that the interesting
5 part about this has not been despair, has not been
6 illegal. It has simply been that little human thing
7 that says I am sorry, we didn't get it. And that is
8 very painful to me.
9 When I want to do good for this community, and
10 that I even formed a private corporation to assure
11 that the programming would be independent, so a
12 private small station merged with a private small
13 institution, corporately they were the same corporate
14 structure and there is no legal reason why we cannot
15 go forward, even given the good faith that I have
16 pledged that we will continue to dialogue, to see if,
17 in fact, that partnership cannot come in time.
18 My name is Sister Jeanne O'Laughlin. I am
19 president of Barry University.
20 GOVERNOR CHILES: Is somebody here from Charlie
21 Reed's office?
22 MS. PLYMALE: This is Mr. Carl Blackwell.
23 MR. BLACKWELL: The chancellor had an
24 appointment in Washington and couldn't be here.
25 The position of the Regents is that we are in a
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1 bargaining negotiation with Barry-Tel to accomplish
2 the equal partnership that the Appropriation Act
3 mandated. And this action here would take some of
4 that negotiation, urgency for negotiation away.
5 ATTORNEY GENERAL BUTTERWORTH: How much time do
6 you need? I know that the Good Sister indicated it's
7 almost coming to an end. We have to make a
8 determination on this.
9 MR. BLACKWELL: We submitted a proposal on May
10 16 to Mr. Burt, I believe. And we have not had a
11 response to that yet. There may have been some
12 conversations, but we haven't had a formal response
13 as I understand.
14 ATTORNEY GENERAL BUTTERWORTH: When is the
15 first meeting in August? I know we don't meet in
16 July.
17 GOVERNOR'S AIDE: The 12th.
18 GOVERNOR CHILES: 12th.
19 ATTORNEY GENERAL BUTTERWORTH: I spoke to
20 Dr. Reed last night. He is certain he can get the
21 money by then in order to have the 50/50 partnership.
22 I think everybody --
23 SISTER JEANNE: Not money --
24 MR. BURT: At this point, we cannot really
25 continue as we are. We have to complete the
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1 transaction with South Florida Public Communications
2 because the FCC licenses have been transferred. We
3 must complete it.
4 The amendment proposed today would then permit
5 the continued dialogue between the parties to
6 conclude the transaction, but we simply have to
7 finish and complete the merger now, because there are
8 difficulties in operating with an entity that doesn't
9 have a license. So we must conclude.
10 GOVERNOR CHILES: Counsel, I think we
11 appreciate that. But we have been involved in
12 negotiation a little bit. And that's part of our --
13 we do that everyday. And you usually don't negotiate
14 after you signed something. I mean, that's not much
15 of a negotiation.
16 MR. BURT: What you are deciding, Governor, is
17 a participation in the entity. That's separate from
18 the transfer of the license and the conclusion of the
19 merger.
20 GOVERNOR CHILES: Well, you know, you want to
21 find a place -- a way we can escrow this license or
22 we can put it up --
23 MR. BURT: You can't do that.
24 GOVERNOR CHILES: But I don't think you can
25 sort of -- we don't pass the straight-face test if we
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1 are going to say this is going to be an arm's-length
2 transaction in negotiation, and we already
3 transferred everything.
4 Now, I would say from the standpoint of the
5 Cabinet, the Governor and the Cabinet, we have been
6 trying to act in good faith about this. We talked
7 about a partnership and a need for a partnership.
8 And we are mindful certainly of the way Berry has
9 stepped up to the plate, put an awful lot of money
10 in, prepared to put more money in, put a lot of time
11 and effort, and we think all of that is very
12 admirable. And that's why we said we were going to
13 hold Berry harmless.
14 Just the other thing from our standpoint,
15 though, the state has invested some millions of
16 dollars in this entity, both in operating funds and
17 in capital outlay. And it is something that we can't
18 sort of sit back and cavalierly say now we just
19 transfer that to another entity. And maybe the state
20 will have something to say or the Board of Regents
21 how this goes along.
22 So I don't know --
23 MR. BURT: You are not transferring it, Your
24 Honor, or Governor. We are simply leasing it from
25 you under the terms of the agreement. So you are not
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1 just transferring it.
2 GOVERNOR CHILES: Well, if you are willing to
3 put something in that lease that conditions it upon
4 the successful negotiation of this, I guess?
5 MR. BURT: No, we are not.
6 GOVERNOR CHILES: I didn't figure you were.
7 MR. BURT: For one thing, there is no legal
8 impediment to concluding the transaction. Berry has
9 a contracting party that has -- basically we are late
10 in transferring.
11 GOVERNOR CHILES: Well, I guess that's the
12 question then. If there is no legal impediment, then
13 maybe the state doesn't have anything to stand on,
14 maybe we ought to walk away from it. Maybe we ought
15 so say we don't want to put anymore money in it. And
16 that may be true.
17 I will just have to say that's a conclusion
18 that I have not reached yet in that instance.
19 If we have not only an obligation, I definitely
20 know we have -- feel we have an obligation. And
21 that's something that I think that we need to look
22 at.
23 ATTORNEY GENERAL BUTTERWORTH: I agree. I
24 would like to move we defer this until the first
25 meeting in August.
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1 COMMISSIONER BROGAN: I was going to say this I
2 think started back in February, if I am not
3 mistaken.
4 SISTER JEANNE: January.
5 COMMISSIONER BROGAN: I think all sides in good
6 faith and I think this State Board of Education has
7 offered extension after extension and an opportunity
8 to try to bring the negotiations to a successful
9 conclusion.
10 I believe when the Board of Regents went to the
11 legislature to try to find money to do this, the
12 legislature spoke, didn't provide the money to make
13 this a reality, which not only made in my opinion a
14 financial statement but a statement in general.
15 The amount of money that I think the state has
16 put in -- and people need to be concerned about
17 public money, especially public money that melts with
18 private money. But if you stop and consider the
19 money that the state has put into WXEL over some 15
20 years, I suppose, what we have is a bankrupt entity
21 as a result with a building that needs to be leased
22 and some equipment, most of which I understand
23 through staff is outdated, outmoded and badly in need
24 of replacement.
25 So I think that where we are on this issue is
28
1 just purely a business issue at this point.
2 Recognizing that A, there is a contract that has been
3 negotiated, that just my opinion doesn't seem to have
4 a legal impediment that would stop it from moving
5 forward, nor does there appear to be one on the
6 horizon.
7 Two, negotiations which have continued and yet
8 not borne fruit in terms of what people were looking
9 for. And yet, the invitation I think from Barry-Tel
10 to have representation from higher ed still sit on
11 that board in an effort to continue to push the
12 public interest. But I think very importantly is the
13 issue of the contract itself.
14 This is something we discussed at this level
15 before. Whoever takes over that contract is required
16 to see that the public interest is served through
17 that station and what that station does.
18 Whether it were to be a 100 percent Board of
19 Regents acquisition, whether it were to be purely a
20 Barry-Tel acquisition, or whether it were to be a
21 conglomerate of both, the point is is that there is a
22 strict requirement monitored by the FCC and the
23 Corporation for Public Television to see -- and the
24 Department of Education by the way -- to see to it
25 that that lease agreement is held in good faith, and
29
1 that the public interest is served.
2 As much as I guess we can continue the
3 negotiations, I am looking at this in two ways. One
4 is purely a business arrangement and the fact that we
5 have got a group who is willing to rescue a failing
6 enterprise and provide public opportunity to the
7 citizens of south Florida, and they are ready to do
8 it today.
9 They have rescued a failing enterprise by
10 putting substantial sums of money and are standing to
11 put even more substantial money into the enterprise
12 to see that it is a successful venture.
13 Two, they have offered places on the board for
14 higher education. And I am a member of the Board of
15 Regents and I would love to see the Board of Regents
16 with higher ed represented on that board and to help
17 make certain we are serving the public good and
18 providing input from that end. And also, as the
19 Department of Education who is ultimately somewhat
20 responsible via the State Board of Education for the
21 terms and conditions surrounding that lease, we all
22 need to be vigilant, again with deference to WXEL and
23 to Barry-Tel, that whoever holds that lease, the
24 public interest is served or it is my responsibility
25 to come back to the State Board and apprise you
30
1 otherwise.
2 So at this point, I think to put the discussion
3 off any longer to try to serve the public good, in my
4 opinion the public good is being served. And I can
5 say that and pass the smile test without any
6 problem.
7 I really believe that the best interest of the
8 public is going to be served.
9 And lastly, for those of us who support public
10 television -- and I submit all of us do -- we also
11 recognize public television nationally has been urged
12 regularly by Congress and members of state
13 legislators to start looking for other sources of
14 funding other than tax dollars to maintain their
15 operation. Therefore, private enterprise.
16 Here's an opportunity, I think, to have a station
17 that serves the public good, supported by private
18 dollars, giving us the best of both worlds, and held
19 to the standard that suggests if they do not meet
20 that public interest, they have the Sword of
21 Damaklees which hangs over their head that suggests
22 they can lose the contract and lease.
23 So I think what we are doing here is
24 considering that if, in fact, there are not public
25 dollars still placed into this contract, there is the
31
1 potential for public harm. And I don't believe
2 that.
3 I think more and more public concerns such as
4 this need to be served more with private dollars if
5 they are going to continue to be funded, continue to
6 be operated and continue to serve the public good.
7 And I think this is a perfect example of a
8 public/private partnership that would indeed do just
9 that -- serve the public good and I think rescue a
10 failing concern and provide service to the people of
11 south Florida as the contract exists today.
12 ATTORNEY GENERAL BUTTERWORTH: I don't disagree
13 with that. I think we are sitting on -- I think all
14 of us like to see a 50/50 partnership as the Board of
15 Regents wants; I think that was consensus we wanted
16 here. That's what I believe Sister Jeanne was
17 willing to go with originally.
18 SISTER JEANNE: Prior to the legislation.
19 ATTORNEY GENERAL BUTTERWORTH: Prior to the
20 legislation. Now Dr. Reed would like to get the
21 50/50. I think the Board of Regents stated they want
22 to get the 50/50. We already have 22 and a half
23 million dollars I believe invested in this particular
24 asset, 15 million dollars operational costs, 7 and a
25 half million dollars. Dr. Reed believes he can have
32
1 all the additional money necessary for the 50/50
2 partnership by that Cabinet meeting.
3 I don't know if he plans to be conducting bake
4 sales or what, but I believe that we owe it to the
5 people of the State of Florida who put in 22 and a
6 half million dollars of taxpayer dollars for this
7 particular six weeks so the state can keep a 50/50
8 partnership in this. And I believe the public
9 interest will be much better served with the 50/50
10 partnership, that what we are talking about today,
11 especially when we are only talking about literally a
12 few weeks.
13 GOVERNOR CHILES: Sister Jeanne, would you
14 explain to me, you said prior to the legislation.
15 What was the change?
16 SISTER JEANNE: Prior to the legislative
17 session, I was very open to the 50/50. There was
18 action taken on the floor that was to remove Berry
19 totally from this procedure and from the station.
20 That was a very, very traumatic experience for me and
21 very harmful and hurtful.
22 And I believe -- I certainly don't want to
23 mention names or anything to that point.
24 But it made me wonder and made me question
25 whether we would ever be able to have a 50/50 and
33
1 have it for the good of the people.
2 I was told even by one of the supporters that
3 if it were a private industry, they would never
4 approve or promote a 50/50 for management.
5 That can be a disaster. That station had a
6 disaster of history. For you to defer it means for
7 me once more to allow another corporate board, WXEL's
8 corporate board, to continue to manage that with me
9 having no control over the quality of management or
10 the monies that have to be put in there between now
11 and August.
12 And I believe that in time, we can, through
13 dialogue and better conversations when there are not
14 three parties but two parties. The action today, if
15 you defer it, means that the third-party, the WXEL
16 board and their lawyers have to approve everything I
17 do or everything I say to the Board of Regents. That
18 has been very hard for me, very difficult.
19 When we wrote the terms of the agreement, it
20 was not Barry-Tel and the Board of Regents. It was
21 Barry-Tel, the WXEL board, and the Board of Regents.
22 Before I consent to those terms of agreement,
23 they had to go to their lawyer, where they would be
24 modified and then to the Board of Regents.
25 Because as long as the license is not
34
1 transferred, there is a separate board in charge of
2 that station.
3 To defer it means they still stay in charge.
4 If the transfer takes place, then it is only
5 Barry-Tel and the Board of Regents who have to
6 negotiate and talk.
7 For me, I understood the other day at the aides
8 meeting through Greg Gleason that he supported the
9 elimination of that third element. However, still
10 not to give me the authority to go ahead and work
11 with the management is very difficult, especially
12 given the need for the monies at this point.
13 We have left in our amendment that we would
14 continue to negotiate and work with the board.
15 GOVERNOR CHILES: Sister, I just want to say
16 that I think all of us had our feelings hurt by what
17 the legislature said or what members of the
18 legislature said. And certainly --
19 SISTER JEANNE: It wasn't hurt, it was to
20 destroy. It was not just to hurt, it was to
21 destroy.
22 GOVERNOR CHILES: I would just say that you
23 have changed your mind it seems on the 50/50. I
24 don't think we changed our mind on that yet. And
25 yet, you are sort of saying --
35
1 SISTER JEANNE: I have not changed my mind. I
2 have not come to the kinds of terms of the agreement.
3 Will the employees be state or will they not? There
4 are many, many things to work out when it's 50/50.
5 And those things cannot be done within a short
6 period. The money is part of it.
7 GOVERNOR CHILES: I think that's part of our
8 concern, just to tell you the truth. I think perhaps
9 it sounds like to me that you are prepared to say
10 look we'll do it alone, we don't have to have state
11 funding.
12 I think our feeling is the state ought to be
13 putting money in that. We want to see that that
14 happens. We feel that having a 50/50 partnership is
15 one of the essential ingredients that would allow us
16 to have state monies and state funding, and have the
17 kind of partnership that we need.
18 But I don't know, I guess -- I understand the
19 problems that you are raising, that you have to go
20 through in the delay of this. And where you are
21 sitting, I can see that that's -- those are major
22 hurdles.
23 Again, I think from where we are trying to sit,
24 where we do, is trustees, a fiduciary responsibility
25 where the state has been in this, where we hope the
36
1 state will go in the future, we think that that
2 negotiation has to be totally an arm's length way.
3 And to take this action today is to show that
4 that just wouldn't be able to happen.
5 ATTORNEY GENERAL BUTTERWORTH: I have one
6 question. I thought that the approved agreement that
7 we had before says that to provide -- that provided
8 to transfer of the FCC license to Barry-Tel, that
9 membership in Barry-Tel shall be revised to consist
10 of Berry University and Florida Board of Regents in
11 proportions to be negotiated by said parties.
12 Dr. Reed --
13 SISTER JEANNE: Dr. Reed, also at the question
14 of the Secretary of State -- and the record showed it
15 -- she asked: Does this depend upon the money? And
16 Dr. Reed's answer was: No money, no deal.
17 Afterwards, I said to Charlie, that's not
18 necessarily true. We will continue to work out some
19 way to work together, whether there is no money. I
20 told that to Dr. Cantaneese at FAU.
21 I think that that part is not a worry to me. A
22 worry to me is what to do with a station that
23 presently should be managed better than it is.
24 We have improved the management and what's
25 happened there in the last -- since last November.
37
1 But there is still at this point some very serious
2 problems.
3 And by not being the responsible person, it
4 makes it very difficult. And I am simply saying a
5 deferral -- a deferral is killing me.
6 SECRETARY MORTHAM: Governor, just to comment,
7 I personally believe that this has gone on long
8 enough. I think that we either need to fish or cut
9 bait, one way or the other.
10 If we want Barry-Tel out of it, and we want all
11 public money into it, then I think that Chancellor
12 Reed needs to find the money.
13 On the other hand, I am not sure that I would
14 agree that we necessarily need more state money in
15 it. And that if, in fact, we can find somebody,
16 Barry-Tel being one, that happens to want to put all
17 their money into it, then so be it.
18 I think we always need to garner private
19 support. And frankly, whether it be 22 million the
20 state has already put in or whatever that figure is,
21 and that was -- that's larger than what I was told it
22 was -- those are absolutely significant dollars.
23 But if, in fact, it's basically a -- almost a
24 nonentity now, I mean it is a bankrupt organization
25 that nobody wanted -- so what that we put that money
38
1 there. It's a disaster. It's basically a disaster
2 right now.
3 And I see a rescue on the horizon, and we are
4 asking that person or entity that has now put in
5 800,000 approximately dollars, wait basically another
6 two months.
7 I think that from a business perspective, that
8 is -- that's nearly unconscionable. I would be
9 opposed to deferring it until August. If, in fact,
10 this Cabinet believes that Barry-Tel shouldn't be
11 involved, then I think we should be willing to take
12 that vote today.
13 SISTER JEANNE: I think for misinformation,
14 Erick Smith from the Department of Education has the
15 real money. That 22 million is just not real. I
16 wonder if --
17 ATTORNEY GENERAL BUTTERWORTH: I have the
18 numbers on this. I think is all operational costs.
19 SISTER JEANNE: The actual money of the
20 building in 1983, there was a 300 --
21 3-million-200-and-something -- and it is presently
22 insured for 2-million-something. We would not own
23 that building. It would be leased.
24 All the equipment is presently being accounted
25 for. It sits in the back room in nonuse. To say
39
1 that the operation -- you would have to say that for
2 all of the other public televisions that are not part
3 of the university system.
4 Of all the public universities or all the
5 public televisions in the state, they are not -- they
6 all do not have public partners. I want a public
7 partner. I will work with a public partner. But at
8 this point, to defer doing that is deadening.
9 ATTORNEY GENERAL BUTTERWORTH: I move to defer
10 it to the first Cabinet meeting in August. We
11 already voted for a 50/50 partnership. The agreement
12 was not -- it stated in there that the transfer was
13 not supposed to happen until Berry University and the
14 Florida Board of Regents negotiated the percentages.
15 That has not been done yet. I don't know why it was
16 transferred but it was.
17 SISTER JEANNE: The FCC did it.
18 ATTORNEY GENERAL BUTTERWORTH: I believe in the
19 interest of the public which allows the Board of
20 Regents to have 60 days to raise the money they need.
21 If they can't do it, then obviously August, whatever
22 the first meeting day, that's the way it goes. But I
23 ask for the 60 days and I believe Charlie Reed can do
24 what he says he can do.
25 COMMISSIONER BROGAN: Just a question on the
40
1 deferral issue. And I wish Chancellor Reed were
2 here.
3 My concern is where do you come up with that
4 kind money in 60 days that you weren't budgeted? If
5 he is going to have a bake sales, he is using private
6 money to put down in WXEL and it defeats the whole
7 purpose. If he has got that kind of money sitting in
8 his budget, we need to reconvene the legislative
9 process. I can use some money.
10 I am really concerned here that we are so
11 concerned with -- I put it in quotes -- the public
12 good that we are missing the mark.
13 And I guess what I am saying is I believe the
14 public good is being served with this contract. If I
15 didn't, believe me, I would be the first one to vote
16 not to see it consummated.
17 What we are talking about here is how much
18 taxpayer dollars needs to be infused to protect the
19 public good? Is it one dollar? Is it 500 million
20 dollars?
21 What I submit is that contract, as it is ready
22 to consummate today, is serving the public good and
23 must serve the public good by virtue of the contract,
24 the FCC license and the monitoring of the corporation
25 for public television.
41
1 Because once this is all said and done, those
2 of us who support the contract, as it exists today,
3 although in some editorials they will read it wrong,
4 are going to be suggested to not being supporting the
5 public good.
6 Nothing could be further from the truth. I
7 think we all support the public good. We just happen
8 to believe that maybe there is two different ways to
9 get there.
10 Some of us believe that the public good doesn't
11 always have to be served by latching on to taxpayers'
12 dollars. If that were the case, WXEL would be a
13 thriving enterprise today, having infused whatever it
14 is, 15 million, 20 million, whatever the figure is.
15 What we have got is 15 or 20 million dollars of
16 taxpayers money dumped down a rat hole because it's a
17 failing enterprise.
18 So here is a private concern ready to come up
19 and put in their money and serve the public good. I
20 can't think of a better arrangement as well as put
21 public persons on that board to help continue to keep
22 a place at the table for the university system.
23 And to defer that, hoping that Charlie Reed,
24 with all due respect, is going to go out and come up
25 with that kind of money in 60 days. If the
42
1 legislature wanted him to have the money, he would
2 have been given the money two months ago. They made
3 a conscious decision not to give him that money, and
4 I will end with this.
5 I have been -- I had my feelings hurt by the
6 legislature, too, Governor as we all have. But I
7 watched a conscious act unfold during that
8 legislative process. I watched the same people who
9 said they supported a 50/50 split go out of their way
10 to consciously defeat the whole deal by writing out,
11 not in subliminal fashion, but clearly writing out
12 Berry University out of this contract.
13 That, Secretary, was unconscionable as well.
14 Because now to come back and say well, we didn't
15 really mean it, we want to have a partnership, in my
16 opinion negates everything that happened during that
17 60 days of legislative process where they very
18 artfully and carefully crafted a piece of legislation
19 and supported it that would have removed Berry from
20 any consideration in this deal.
21 It makes negotiations a little tougher to enter
22 into and continue on when you have been had like
23 that.
24 So I think we need to move on it. I think we
25 got a good contract that is legally supported, and no
43
1 one can show me -- and believe me, I dug into this.
2 No one can show me one legal caveat that should
3 disallow this contract from being consummated
4 because, again, I am not reckless legally. If there
5 was something I felt put us on shakey legal ground, I
6 also wouldn't be supporting what I am supporting
7 today.
8 I think we need to move on it. I think we need
9 to thank Berry for taking up the issue, and also for
10 continuing to want to have public input on that
11 board. And I think to provide a common good for the
12 people of south Florida is a very noble effort.
13 GOVERNOR CHILES: Obviously, this is a question
14 about which reasonable people can differ. I think
15 that's what we are here to decide. Is there a
16 second?
17 COMMISSIONER CRAWFORD: I second.
18 GOVERNOR CHILES: Moved and seconded. Is there
19 further discussion? Call the roll.
20 THE REPORTER: Commissioner Brogan.
21 COMMISSION BROGAN: No.
22 THE REPORTER: Treasurer Nelson.
23 TREASURER NELSON: Yes.
24 THE REPORTER: Attorney General Butterworth.
25 ATTORNEY GENERAL BUTTERWORTH: Yes.
44
1 THE REPORTER: Governor Chiles.
2 GOVERNOR CHILES: Yes.
3 THE REPORTER: Commissioner Crawford.
4 COMMISSIONER CRAWFORD: Yes.
5 THE REPORTER: Secretary of State Mortham.
6 SECRETARY MORTHAM: No.
7 THE REPORTER: Comptroller Milligan.
8 COMPTROLLER MILLIGAN: No.
9 GOVERNOR CHILES: By your vote, you have voted
10 to defer this until the August meeting.
11 Is that the last item on the agenda?
12 COMMISSIONER BROGAN: Yes, sir.
13
14
15
16
17
18
19
20
21
22
23
24
25
45
1 GOVERNOR CHILES: Administration Commission.
2 MR. BRADLEY: Robert Bradley.
3 Item number 1, recommend approval of the
4 minutes for the meeting held May 13 and May 28,
5 1997.
6 COMMISSIONER CRAWFORED: Moved.
7 ATTORNEY GENERAL BUTTERWORTH: Seconded.
8 GOVERNOR CHILES: Moved and seconded. Without
9 objection, approved.
10 MR. BRADLEY: Item number 2, recommend approval
11 of the transfer of general revenue appropriations to
12 the Agency for Health Care Administration, Department
13 of Children and Families.
14 COMMISSIONER CRAWFORD: Moved.
15 ATTORNEY GENERAL BUTTERWORTH: Seconded.
16 GOVERNOR CHILES: Moved and seconded. Without
17 objection, approved.
18 MR. BRADLEY: Item number 3, recommend approval
19 of the transfer of general revenue appropriations for
20 items A and B under the Department of Children and
21 Families.
22 COMMISSIONER BROGAN: Move items A and B.
23 COMMISSIONER CRAWFORD: Seconded.
24 GOVERNOR CHILES: Moved and seconded; without
25 objection, approved.
46
1 MR. BRADLEY: Item number 4, recommend approval
2 of the transfer of general revenue appropriations in
3 the Department of Corrections.
4 COMMISSIONER CRAWFORD: Moved.
5 ATTORNEY GENERAL BUTTERWORTH: Seconded.
6 GOVERNOR CHILES: Moved and seconded; without
7 objection, approved.
8 MR. BRADLEY: Item number 5, recommend
9 approval of the transfer of general revenue
10 appropriations into the Justice Administration
11 Commission.
12 COMMISSIONER CRAWFORD: Moved.
13 ATTORNEY GENERAL BUTTERWORTH: Seconded.
14 GOVERNOR CHILES: Moved and second. Without
15 objection, approved.
16 MR. BRADLEY: Item number 6, recommend approval
17 of the transfer of general revenue appropriations
18 under items A and B to Department of Juvenile
19 Justice.
20 COMMISSIONER CRAWFORD: Moved.
21 COMMISSIONER BROGAN: Seconded.
22 GOVERNOR CHILES: That was moved and seconded.
23 Without objection, approved
24 COMMISSIONER BROGAN: That was A and B, by the
25 way.
47
1 MR. BRADLEY: Item number 7, recommend approval
2 of the transfer of general revenue appropriations in
3 the Florida Parole Commission.
4 COMMISSIONER BROGAN: Moved.
5 ATTORNEY GENERAL BUTTERWORTH: Seconded.
6 GOVERNOR CHILES: Moved and seconded. Without
7 objection, approved.
8 MR. BRADLEY: Item number 8, recommend approval
9 of the transfer of general revenue appropriations in
10 the Department of State.
11 SECRETARY MORTHAM: Move approval.
12 COMMISSIONER BROGAN: Seconded.
13 GOVERNOR CHILES: Moved and seconded. Without
14 objection, approved.
15 MR. BRADLEY: Item number 9, recommend approval
16 of the transfer between fixed capital outlay
17 appropriations to the Department of Transportation.
18 ATTORNEY GENERAL BUTTERWORTH: Move
19 COMMISSIONER CRAWFORD: Seconded.
20 GOVERNOR CHILES: Moved and second. Without
21 objection, approved.
22 MR. BRADLEY: Item number 9 is recommend
23 adoption of rule 28-20.100 in the Florida
24 Administrative Code amending the Monroe County
25 comprehensive plan.
48
1 We have a number of people to speak on that and
2 Teresa Tinker I believe is available for questions on
3 that issue if you would like to do that before you --
4 COMMISSIONER BROGAN: This is number 9?
5 MR. BRADLEY: This is item 10.
6 GOVERNOR CHILES: Item 10. All right, is
7 somebody going to keep account of time?
8 MR. BRADLEY: I will do that. We'll give each
9 person about three and a half minutes.
10 GOVERNOR CHILES: You want to start off just
11 sort of giving us a quick overview.
12 MR. BRADLEY: Why don't I have a Teresa Tinker
13 give you an overview of what's happening.
14 MS TINKER: Thank you, Governor and Cabinet.
15 It's been almost two years to the month since you
16 first saw the hearing officer's recommended order
17 finding and recommending to you that the
18 comprehensive plan for Monroe County was not in
19 compliance.
20 You directed staff to -- and you agreed with
21 that finding in December of '95.
22 You directed staff and the county and the
23 agencies to work with citizens of Monroe County to
24 develop a rule that would bring that plan into
25 compliance. We have gone through several iterations
49
1 of that rule. The most recent version, which was
2 published earlier this year, was challenged by five
3 different parties. The administrative law judge
4 issued his final order recently dismissing all five
5 of those petitions challenging the rule, and finding
6 that the Administration Commission's rule was, in
7 fact, consistent with your final order that you
8 adopted with the earlier findings of noncompliance
9 and a valid rule.
10 So today we are before you asking for
11 permission to finalize that rule through your
12 adoption of the final rule which will bring the
13 entire comprehensive plan for Monroe County into
14 compliance.
15 Just to recap the major issues of the rule, you
16 will recall that waste water and stormwater was a
17 major issue in the comprehensive plan. This rule
18 puts into place interim standards for waste water
19 treatment systems, requires a waste water master plan
20 be developed to determine the permanent level of
21 treatment that would be appropriate for the Florida
22 Keys.
23 It also requires a stormwater management plan
24 and provisions to enhance stormwater treatment in the
25 future. It immediately starts a cesspit replacement
50
1 process. If you remember, there were several
2 thousand cesspits or at least on-site septic tank
3 systems that we don't know what they are, we cannot
4 find permits for them.
5 This immediately starts an inspection program
6 and replacement program for getting rid of those
7 cesspits. It deals with land acquisition efforts for
8 not only coral acquisition sites, but also sites that
9 cannot be developed under the comprehensive plan,
10 working with the Monroe County Land Authority.
11 It requires a carrying capacity study be done
12 and steps have been taken on all of those issues
13 already. Even though the rule has not been effected,
14 the county, the agencies, the citizens have been
15 working for several months now trying to begin the
16 process of doing those things that you will be
17 requiring in this rule. And quite a bit of progress
18 has been made already.
19 Today, Commissioner London, Jack London, from
20 the county is here to speak as well as Richard Grosso
21 representing 1000 Friends who has been involved in
22 the process for several years now. And Mr. H.T.
23 Pontin, a citizen from Monroe County, would like to
24 speak to a couple of issues and the rule as well.
25 MR. BRADLEY: First we would like to introduce
51
1 Bob Apgar, who is the attorney representing Monroe
2 County.
3 MR. APGAR: Governor, Members of the Cabinet,
4 Bob Apgar representing Monroe County. Commissioner
5 Jack London, the commissioner designated by his
6 colleagues to speak to you on growth management
7 matters, is here and would like to make a few
8 remarks. First I want to ask if anyone had any
9 questions about the rule that I could answer?
10 GOVERNOR CHILES: Questions? I don't hear any
11 right now.
12 MR. APGAR: I would like to introduce
13 Commissioner Jack London.
14 MR. LONDON: Governor and Members of the
15 Cabinet, this is certainly less controversial than
16 the last time we were here.
17 As you know, we have been down this long
18 difficult road, and I think we are at a point where
19 finally we can say to the residents of Monroe County
20 we are going to have an approved and adopted
21 comprehensive plan.
22 I think this is a long road we traveled
23 together, and I think that we are at a point now
24 where we are going to begin another very difficult
25 journey in the implementation of this plan.
52
1 COMMISSIONER BROGAN: I agree.
2 MR. LONDON: I want to thank you on behalf of
3 the citizens of Monroe County. And I am pleased to
4 say that we are seeing that there is a financial
5 component in this plan that you suggested would be
6 there. We are very pleased to see that.
7 I want to also tell you that the state agencies
8 have been very cooperative and helpful throughout
9 this entire process. And I would like to also single
10 out Teresa Tinker for her sensitivity and her ability
11 to deal with the citizens of Monroe County. It's
12 been yeoman's service on behalf of the Governor and
13 the Cabinet as far as Teresa is concerned. So thank
14 you very much. If there are any questions, I will
15 attempt to answer them.
16 GOVERNOR CHILES: Thank you, sir.
17 MR. BRADLEY: Next Governor, I would like to
18 introduce Richard Grosso representing 1000 Friends of
19 Florida.
20 MR. GROSSO: Good morning, Governor and Members
21 of the Cabinet. I am Richard Grosso with 1000
22 Friends of Florida.
23 We do support formal adoption of this rule. It
24 has a lot of things in it that currently aren't in
25 Monroe County comp plans and better protections; to
53
1 that extent, we are happy to see it come into
2 effect.
3 Unfortunately, we continue to feel, we also
4 felt that this rule does not do enough to speed up
5 restoration of the Keys, and it might be just too
6 little too late to make sure future growth in the
7 Keys doesn't outstrip the ability of the natural
8 system to sustain additional development and doesn't
9 outstrip our collective ability to fund facilities
10 and services in the Florida Keys.
11 We just lost the challenge to this proposed
12 rule. The Administrative Law Judge ruled that it met
13 the minimum standard, it wasn't wholly arbitrary and
14 capricious, because it did set in motion a carrying
15 capacity study and waste water and stormwater master
16 plans and all of those things.
17 The reason he said that is because it has this
18 five-year work plan, and the rule does suggest that
19 after the end of the five years or at any yearly
20 interval between now and then, if the tasks in the
21 five-year work plan aren't done, then you all would
22 reduce the rate of growth or stop it altogether.
23 And the Department of Community Affairs and
24 Monroe County told the administrative law judge
25 that's what would happen, there would be strict
54
1 compliance with this five-year work plan. If they
2 don't do these things, we have got this hammer and
3 incentive to make these things happen because we'll
4 reduce the rate of growth.
5 We think the language of your proposed rule, of
6 this rule, is far too weak. It says if substantial
7 progress towards achieving overall objectives of this
8 work plan isn't made, then we'll reduce the rate of
9 growth.
10 We already seen the Department of Community
11 Affairs as giving you their yearly report on the
12 critical area program, criticizing a lot of the lack
13 of progress on some things, and the county already
14 responded with a letter we don't have enough funding,
15 we have reasons why we can't do these things.
16 What we are concerned about, what we just
17 really want to emphasize to you, is that when we get
18 to those yearly report card times, when things
19 promised in the five-year work plan really have not
20 been accomplished, when the results aren't there,
21 that you stick to that language in the proposed
22 rule.
23 And you do, consistent with your intent to
24 provide an incentive to make things happen, you do
25 reduce the rate of growth in the Keys. You do
55
1 strictly enforce that, because if you don't, then we
2 just have the same rate of growth in the Keys. And
3 your intent to accelerate all these things that
4 really need to happen in the Keys just won't be
5 played out.
6 Among the most important things is this
7 carrying capacity study. It's being done because of
8 all of the scientists working in the Keys have been
9 telling us we may have actually exceeded the ability
10 of this system to handle any more development.
11 Yet this rule allows five more years of
12 continued residential and commercial development
13 before we will even know the answer. Five years down
14 the line, if the answer is we exceeded our
15 environmental carrying capacity five years ago, we
16 can't rip buildings out of the ground. We already
17 let the cat out of the bag. That's why it's so
18 critically important that we not find ways over the
19 next five years to excuse noncompliance with the
20 accomplishments set out in the five-year work plan,
21 and we really do stick to our guns and strictly
22 enforce the things that you got in this proposed
23 rule. Even at that, it may be too little too late
24 for the Keys.
25 That's why we have to strictly comply. No
56
1 excuses, we need to see results in the Keys. We need
2 to see them quickly.
3 I will be happy to answer any questions.
4 GOVERNOR CHILES: Thank you. Any questions?
5 ATTORNEY GENERAL BUTTERWORTH: I have a
6 question of Teresa.
7 What Richard just said, we are all concerned,
8 we all hope it's not too little too late.
9 It's my understanding according to the law, the
10 counties are required to adopt land development
11 regulations consistent with the comprehensive plan.
12 When are the land development regulations due?
13 MRS. TINKER: The county has a year from the
14 date the plan goes into effect. It's my
15 understanding that the county will have their land
16 development regulations ready to submit for state
17 review by December of this year.
18 ATTORNEY GENERAL BUTTERWORTH: I also question
19 one of the main reasons for designation of the
20 Florida Keys as an area of critical state concern is
21 for the protection of the reef and other living
22 marine organisms as provided in the statutory
23 principles for development.
24 What will be the process for the state to work
25 with the county to ensure that the land development
57
1 regulations will help protect such resources, and
2 will not be too little too late, or the county will
3 not have the resources alone to do it?
4 MRS. TINKER: My office as well as the state
5 agencies that have responsibilities in the Keys will
6 be working with the county over the next few months
7 trying to help them develop the land development
8 regulations so that we don't wait until we get them
9 to start our review process. We need to be part of
10 that development. And we will do that.
11 Additionally, there are several policies in the
12 plan that don't go directly to the point allocation
13 system, but that can be looked at in light of the way
14 the county allocates points for future development,
15 so we'll be trying to make sure that those things are
16 considered so that we have the most protection we can
17 get for habitat, Key deer, marine resources, for the
18 environment of all aspects of the county.
19 So we will be working with the county in developing
20 those land development regulations. We also have a
21 review role at the state level, and chances are you
22 all may even have an opportunity to review those land
23 development regulations should the county not be able
24 to adopt them on their own or should we find them not
25 in compliance.
58
1 GOVERNOR CHILES: Teresa, we thank you very
2 much for all your efforts in this.
3 SECRETARY MORTHAM: I would also like to
4 commend Teresa and also Barbara Leighty for all --
5 for both of their very hard work because I know this
6 has been, needless to say, a very volatile issue and
7 it seems that they have been able to bring all the
8 parties together in a pretty harmonious way, if there
9 is such a thing. And with that, I would like to move
10 adoption of the rule.
11 GOVERNOR CHILES: I think we might have another
12 speaker.
13 MR. BRADLEY: We have one last individual who
14 would like to speak, Mr. H.T. Pontin, a citizen in
15 Monroe County.
16 MR. PONTIN: Governor and Cabinet, I have been
17 living in the Florida Keys for over 35 years. And I
18 have been through a lot of land use planning
19 meetings. And this point is not a new one. I have to
20 give you a little time here, I am sorry, but it took
21 driving up here 1200 miles to give you what's really
22 going on.
23 GOVERNOR CHILES: That's a long drive. A
24 little longer to walk.
25 MR. PONTIN: I was unable to get to your aides
59
1 meeting on June 14, so I am here today to put my
2 comments on record.
3 I tried for more than a year to get a precise
4 definition of nearshore waters, a term often used in
5 a recommended order by Hearing Officer Larry Sartin
6 from the Monroe County comprehensive 2010 plan. When
7 I finally received a copy of the terms as -- of the
8 323-page recommended order, it was laced with such
9 illusive terms as nearshore, offshore, state waters
10 and even Atlantic Ocean which does not abut any of
11 these waters.
12 There is the definition of nearshore waters on
13 page 60 which is vague and generalized regarding
14 alleged pollution, using that definition both
15 arbitrary and capricious.
16 It also is troublesome that the definition does
17 not coincide with the Department of Environmental
18 Protection's definition of nearshore or offshore
19 waters. In fact, it's not even close.
20 I wrote Mr. Sartin on May 10 with a copy to
21 you, Governor Chiles, asking why the comprehensive
22 plan was no longer a land use plan. When Florida was
23 given the sovereign submerged land in 1845, it was
24 not given the feral inshore or offshore navigable
25 waters of the United States over it.
60
1 I also asked how can the state give Monroe
2 County control of something that the state does not
3 have or ever had?
4 Four working days after Hearing Officer Sartin
5 received my letters, he sent me a letter saying he
6 could not answer my questions because there were
7 appeals pending on cases of the land use plans since
8 1991.
9 Three working days after that letter, on May
10 21st, Hearing Officer Sartin dismissed all those
11 appeals saying the comprehensive 2010 plan was now in
12 compliance.
13 It took just seven days to go from he cannot
14 answer because of land use appeals, to hurry and pass
15 the comprehensive 2010 plan.
16 After Mr. Sartin had dismissed all the appeals,
17 I wrote to him on May 23 repeating my questions,
18 knowing they now could be answered. But to date, he
19 has not responded.
20 There are two points I want to make at this
21 time. First, Florida Statute 380.0552, subsection
22 (2), subsection (a), through (g) states promote land
23 use activities.
24 And second, in 1989, under the statute, under
25 subsection four says the Governor and Cabinet shall
61
1 remove the designation of area of critical state
2 concern when the land use plan is passed.
3 If the plan is passed, disregarding the
4 objections by me and others, will that mean the
5 designation of area of critical concern is no more?
6 I urge you to postpone passing the 2010 plan
7 until this question and those addressed to Mr. Sartin
8 are answered. In addition to that, I just heard
9 something about the inspection plan.
10 Well, you are going to start with that coming
11 on our private property, making us pay for it; and
12 next you are going to let them come in and tear walls
13 out of our house to inspect our electrical system.
14 So I think you need a lot more work on this. Thank
15 you.
16 GOVERNOR CHILES: Thank you, sir.
17 MR. BRADLEY: That's all the parties.
18 GOVERNOR CHILES: Secretary of State moved.
19 COMMISSIONER BROGAN: Seconded.
20 GOVERNOR CHILES: Moved and second. Without
21 objection, the comprehensive plan, the amendments of
22 the comprehensive plan are adopted.
23
24
25
62
1 GOVERNOR CHILES: Trustees.
2 MRS. WETHERELL: Virginia Wetherell.
3 Item 1, minutes.
4 SECRETARY MORTHAM: Move approval.
5 GOVERNOR CHILES: Moved and --
6 COMMISSIONER CRAWFORD: Seconded.
7 GOVERNOR CHILES: -- and seconded. Without
8 objection, approved.
9 MS. WETHERELL: Substitute item 2,
10 recommending deferral.
11 SECRETARY MORTHAM: Moved.
12 COMMISSIONER CRAWFORD: Seconded.
13 GOVERNOR CHILES: Moved and seconded. Without
14 objection, approved.
15 MS. WETHERELL: Item 3 is option agreement for
16 the Caravelle Ranch Wildlife Management Area and a
17 waiver survey.
18 SECRETARY MORTHAM: Move approval.
19 COMMISSIONER CRAWFORD: Seconded.
20 GOVERNOR CHILES: Moved and seconded. Without
21 objection, approved.
22 MRS. WETHERELL: Item 4 is an option agreement
23 with Cayo Costa Island CARL Project, waiver of
24 survey.
25 SECRETARY MORTHAM: Move.
63
1 COMMISSIONER CRAWFORD: Seconded.
2 GOVERNOR CHILES: Moved and seconded. Without
3 objection, approved.
4 MRS. WETHERELL: Item 5 is a conveyance to Dade
5 County.
6 COMMISSIONER CRAWFORD: Motion.
7 SECRETARY MORTHAM: Seconded.
8 GOVERNOR CHILES: Moved and seconded. Without
9 objection, approved.
10 MS. WETHERELL: Substitute item 6, recommending
11 deferral.
12 COMMISSIONER BROGAN: Moved.
13 COMMISSIONER CRAWFORD: Seconded.
14 GOVERNOR CHILES: Moved and seconded. Without
15 objection, approved.
16 MRS. WETHERELL: Substitute item 7,
17 recommending withdrawal.
18 SECRETARY MORTHAM: Moved.
19 COMMISSIONER BROGAN: Seconded.
20 GOVERNOR CHILES: Moved and seconded. Without
21 objection, approved.
22 MRS. WETHERELL: Substitute item 8 is a
23 modification of a submerged land lease. Governor and
24 Trustees, we have a number of speakers. I would
25 suggest that -- we have six speakers -- that if you
64
1 want to put a limitation of three to five minutes per
2 person.
3 GOVERNOR CHILES: Are the speakers six from
4 both sides or whatnot?
5 MRS. WETHERELL: No, sir, we have five who are
6 here in support, some elected officials, and the
7 applicant's representative and then we have one in
8 opposition.
9 GOVERNOR CHILES: Why don't we try to go with
10 10 minutes to the side and see if that will do it.
11 MRS. WETHERELL: Yes, sir. The first person I
12 will call upon is Councilman John Crescimbeni who is
13 president protem of the Jacksonville City Council.
14 MR. CRESCIMBENI: Governor, I am John
15 Crescimbeni. I am here today representing the
16 Jacksonville City Council in this matter, also the
17 district councilman that represents the area in which
18 the applicant Cross State Towing Company is located.
19
20 As you probably know, this matter originated in
21 1995 when Cross State Towing Company submitted an
22 application for an additional submerged land use of
23 their current facility in Jacksonville. And we took
24 a look at it as a city and were not happy with it.
25 And we have worked through it for the past couple of
65
1 years, but we are here today with a resolution from
2 the council that supports a settlement agreement that
3 we have kind of hammered out over the past two
4 years.
5 Now I guess one of the reasons we opted for a
6 settlement was we don't want to come -- as much as we
7 like to come to Tallahassee, we don't want to deal
8 with this issue on a bi-annual basis, and for the
9 benefit of the city, for the benefit of the
10 applicant, for the benefit of the neighborhood, we
11 are looking for a long-term solution.
12 And this is basically what we have approved in
13 resolution form from the council is a 20-year deal on
14 our opinion. One of the provisions is that the
15 applicant would not seek any additional submerged
16 land leases for a period of 20 years.
17 We are happy with it. We addressed this issue
18 at a recent council meeting Tuesday night for a
19 second time and approved a second resolution
20 requesting that the Cabinet adopt the settlement
21 agreement.
22 We can talk about this for hours, but I am
23 going to conclude my remarks. If you have any
24 questions, I will be more than happen to answer them.
25 GOVERNOR CHILES: Thank you. The council has
66
1 approved the settlement?
2 MR. CRESCIMBENI: Yes, twice.
3 GOVERNOR CHILES: Thank you.
4 MRS. WETHERELL: Former Mayor Jake Godbold.
5 MR. GODBOLD: Governor and Cabinet, if the
6 city council voted unanimously on that resolution,
7 you ought to go ahead and pass it, because they don't
8 usually vote in favor of anything together. So I
9 don't know if there is any sense in us even being
10 here. I just I would like tell you 1970 --
11 GOVERNOR CHILES: They are usually unanimous on
12 a motion to adjourn, aren't they?
13 MR. CRESCIMBENI: No, they like to stick
14 around. Governor, in 1979, when I first came in as
15 mayor, we were struggling to try to build a new tax
16 base, to try to bring new jobs into Jacksonville.
17 And we kind of have been stale for a long period of
18 time. I kept going up here begging you for money,
19 you wouldn't give me any.
20 But we -- but Mr. Lane and his family opened up
21 the shipyard while I was in office. It's a family
22 business. We were tickled to death to get that small
23 family business in Jacksonville.
24 Since that time, they have been very good
25 citizens. During my eight years as mayor, we really
67
1 had no environmental problems with them. Since then,
2 I understand that he has had some, but he is always
3 quick to react and respond and get the job done.
4 But this is a family-owned business. He is a
5 great -- he has always been a good citizen. He has
6 always responded to anything that we have ever
7 requested from him. He hasn't been the president of
8 the chamber, he hasn't been a big businessman, but he
9 is a small businessman who has been a good citizen
10 over there. He has always been available when we
11 have asked him to participate in the community.
12 And I hope that he could continue to do that in
13 the city.
14 He has a great family-owned business there.
15 And I am just here in support of him because he has
16 always been there when I needed him as mayor or when
17 I needed him as a volunteer or other times.
18 I hope that you can come together on this
19 situation and work it out. Thank you.
20 GOVERNOR CHILES: Thank you.
21 MS. WETHERELL: Next is Michael Munz, who is
22 senior aide to Mayor Delaney.
23 MR. MUNZ: Thank you Governor and Members of
24 the Cabinet. I am here on behalf of Mayor Delaney.
25 And the mayor sent each one of you a letter
68
1 expressing his support for this. I think it's very
2 important that you look at this; that the settlement
3 agreement has been worked out between the parties.
4 The general counsel's office has worked very hard
5 with that. Our office administration has worked very
6 hard with that as well as the unanimous vote of the
7 city council.
8 I think those are the things you need to look
9 upon here. As we worked through this on a local
10 level, we feel that this would be something very
11 worthy of your support. On behalf of the mayor, we
12 would like to ask for that. We are here also to
13 answer any questions you may have along these lines,
14 but basically the mayor would like to ask your
15 support for this. Thank you.
16 GOVERNOR CHILES: Thank you.
17 MS. WETHERELL: Next is Susan Grandin who is
18 general counsel of the City of Jacksonville.
19 MRS. GRANDIN: Good morning, I am Susan Grandin
20 and my boss would be pleased to know that I have been
21 promoted to his position, but I am assistant general
22 counsel.
23 Basically I am here to answer any questions. I
24 understand some of you had some concerns about the
25 zoning problems, code enforcement problems in the
69
1 past. I have searched our records. According to our
2 computer database, we had a code violation or a call
3 on a code violation in 1988 about industrial
4 equipment on a residential property. According to
5 our records, an inspector went out to the property
6 but there was no violation ever cited in the record.
7 So probably what happened was he said if you have any
8 industrial property on the -- industrial equipment on
9 the property, move it off and they probably did,
10 because there was no violation, there is no code
11 board date set for that.
12 There was another violation in 1993 or a
13 supposedly violation. They were called out again,
14 but again no violation was cited, it didn't go to
15 the code board.
16 In 1994, there was a violation where the
17 inspector went out and found there was industrial
18 equipment on the property, that did go to the code
19 board. The Lanes, Cross State Towing Company, tried
20 to get the land rezoned to where it would be
21 industrial property. That was turned down, so they
22 moved the industrial equipment off the residential
23 property, but up a barricade, and we haven't had any
24 problems with them since then.
25 So basically for the last three years, we
70
1 haven't had any zoning or code enforcement violations
2 with the Lanes.
3 I think that maybe because this group here has
4 been looking at them, and that's one of the reasons
5 we felt the settlement was a good idea, that it's
6 very narrowly tailored, very well crafted I think.
7 And I think they will be good citizens under the
8 settlement we come up with. And we are happy with
9 it, and I hope they are happy with it, and I hope you
10 are happy with it.
11 So basically I am here to answer any questions.
12 GOVERNOR CHILES: Questions? Yes.
13 TREASURER NELSON: I have been to the site and
14 I have seen the nature of the work that's
15 contemplated. In the City of Jacksonville supporting
16 this, is it your intention that you support it for
17 the kind of work that is going on there now to
18 continue?
19 MRS. GRANDIN: Yes, sir. Yes, sir.
20 TREASURER NELSON: What if the kind of use of
21 those dock facilities were to change in nature? For
22 example, what if it were to be used as a dock from
23 which a boat would go out into the Atlantic for
24 gambling purposes? Would the City of Jacksonville
25 have a different opinion on a different kind of use
71
1 like that?
2 MRS. GRANDIN: Well, that's a good question.
3 They are zoned for industrial water-related
4 activities. The dock that they are proposing to put
5 there really is only intended not for docking of
6 vessels particularly but more for moving, helping to
7 maneuver the barges that they work on up and down the
8 marine railway.
9 Let me ask is your question about whether or
10 not we would be in favor of them docking a vessel at
11 the new dock that they are proposing?
12 TREASURER NELSON: I want to know what has the
13 City of Jacksonville embraced with regard to the
14 use? We look to you as the local government to guide
15 us in rendering a decision with regard to the use of
16 state bottom lands.
17 And so I am wondering what the City of
18 Jacksonville has, in asking us to approve this, in
19 its mind with regard to the use of the surrounding
20 property.
21 MRS. GRANDIN: I can answer you that we have
22 never considered gambling or docking a gambling
23 vessel there. Probably, or most assuredly, what the
24 intent was was to let Marvin Lane and the Cross State
25 Towing Company continue in their business. We are
72
1 certainly not trying to put them out of business at
2 all. I mean, they are a good corporate business in
3 Jacksonville and a tax base as former Mayor Godbold
4 mentioned. Basically, it's an industrial marine
5 repair facility.
6 TREASURER NELSON: I have been there, and I
7 understand that.
8 MRS. GRANDIN: That's what we are intending for
9 them to go forward on.
10 TREASURER NELSON: Is that stated in your
11 documentation or is that stated in the documentation
12 with DEP?
13 MRS. GARNDON: Not that I am aware of, no.
14 TREASURER NELSON: Okay.
15 GOVERNOR CHILES: Thank you, ma'am.
16 MS. WETHERELL: We have two more speakers. I
17 will call on Susan Dozier who is in opposition to the
18 item, and then Paul Harden, who is the attorney for
19 the applicant.
20 MS. DOZIER: I am Susan Dozier. I feel like
21 David as David and Galliah. The big guns are here,
22 and I am the only one in opposition.
23 I oppose this additional submerged land lease
24 for Cross State Towing Company. According to DOT
25 photographs, Cross State --
73
1 GOVERNOR CHILES: Would you speak just a little
2 more into the mike, pull the mike. That's good.
3 Thank you.
4 MS. DOZIER: According to DOT photographs, Cross
5 State had violated the boundaries of its submerged
6 land lease since 1982. In December '94, when the
7 Trustees, when you, the Trustees, awarded Cross State
8 an additional submerged land use to correct the
9 violations occurring in another part of the river,
10 you asked, Attorney General Butterworth, if there
11 were any other violations.
12 No one spoke up, although the DEP and the Cross
13 State both knew there was a dock in violation, of a
14 permanent structure that the company had built
15 sometime after 1988, outside the submerged land lease
16 and without a permit.
17 Today, had you and your colleagues in '94 known
18 that that structure was there, would you have voted
19 to award the company with even more submerged land?
20 Today, the applied-for lease you are
21 considering includes the illegal dock, and would
22 allow the company to build yet another dock 200 feet
23 long, 10 feet wide, and six feet high.
24 Today, the company that has paid a single fine
25 of $12,500, then given a TUA for the illegal dock is
74
1 now asking you to legalize the illegal dock, let them
2 build another dock and expand their business over
3 even more state lands.
4 A submerged land lease is a privilege.
5 Companies and people that do not respect the rules
6 and regulations of the state and city should not have
7 this privilege. Crossstate has learned from
8 experience you get more when you break the rules.
9 They have learned it's easier and cheaper to ask for
10 forgiveness than it is to seek permission.
11 I must point out Jacksonville City Council's
12 first resolution opposed any additional lease. And
13 the second resolution opposes any additional lease,
14 but says if the Trustees are inclined to approve a
15 lease, the council suggests an alternative
16 configuration.
17 The third resolution, which I only saw this
18 morning, says give them the illegal dock, let them
19 build a new dock, and let the company use the city
20 riparian rights to store barges. But leave the
21 amendment intact. If they violate the boundaries of
22 the lease, the trustees will revocate the lease.
23 I say the illegal dock that was present in '94
24 violated the '94 amendment by then Treasurer
25 Gallagher, and that the lease should have been
75
1 cancelled in 1994.
2 My son, who has grown up watching the laws of
3 the land and the river be violated without
4 consequences, has gotten the message rules and
5 regulations are a minor inconvenience. He asked me
6 why I persist? I asked myself why I persist?
7 It's a matter of principle. If I don't stand
8 up for what is right, how can I expect my son and
9 others to stand up?
10 Governor Chiles and Attorney General
11 Butterworth, you both voted no in '94. Several of
12 you Cabinet members were in the audience that day.
13 Did you agree with the Governor and Attorney
14 General. Would you rent this company your house?
15 Will you allow this company to lease even more state
16 land?
17 Thank you.
18 GOVERNOR CHILES: Thank you, ma'am.
19 MS. WETHERELL: Paul Harden.
20 MR. HARDEN: Good morning. My name is Paul
21 Harden and I represent Cross State Towing Company.
22 I know how Ms. Dozier feels coming, coming up
23 after her, and I am sympathetic to her situation. I
24 have tried and I will continue to try to resolve any
25 issues she has.
76
1 I think in the settlement negotiations with the
2 city they have tried to look after her interest and
3 as of just last week removed a substantial portion of
4 our lease which is on her side -- or our proposed
5 lease -- which on her side of our property.
6 But in fairness, my clients, this property has
7 been industrial waterfront for a long time. It was
8 industrial waterfront when she purchased her
9 property. And at the time she purchased her property
10 and living next door, there was an operation at that
11 location. I am sympathetic. I asked her for what
12 accommodations we can make and will continue to
13 provide any accommodations we can to her.
14 But under the circumstances, I would request
15 your approval of the proposed submerged land lease as
16 approved and as recommended by your Department of
17 Environmental Protection.
18 As you know, the mayor of the City of
19 Jacksonville has written you, he is in support of
20 it. He has Ms. Dozier's interest at heart and
21 proposed language that I believe protects her.
22 The city council unanimously supported this
23 just two nights ago asking you to support this
24 agreement. They have done what they think is
25 appropriate to protect her interests.
77
1 Indeed Ms. Dozier made a complaint to the State
2 Attorney's office in Jacksonville last year. They
3 spent six months investigating the alleged violations
4 she proposes and issued a report saying we not only
5 were -- they couldn't find any violations, there were
6 no violations that they knew of at the time.
7 This matter has belabored substantially over
8 the last couple of years. During that period of
9 time, there have been very substantial changes to the
10 lease. I want to try to go through those quickly so
11 you will understand the issues.
12 Let me first answer Mr. Nelson's question. We
13 wouldn't -- our zoning laws would not allow, our
14 zoning code would not allow a gambling ship at this
15 location. But this is the only business of the Lane
16 family. They operate -- this is a family-owned,
17 family-operated business. They are in the barge
18 business and boat towing business.
19 This dock we are building is a floating dock.
20 It wouldn't hold that type of ship. And in fact, we
21 are limited in the length, and we can only be 185
22 feet.
23 So, one, the zoning law's don't allow it. And
24 two, it doesn't physically accommodate it at that
25 location.
78
1 COMMISSIONER BROGAN: Could I interject and ask
2 a question along those same lines? The lease is
3 transferrable, however?
4 MR. HARDEN: It's in the name of Cross State
5 Towing. And if you want to require that it be
6 limited to them and if the property is sold, they
7 have to come back for another lease, that's okay.
8 COMMISSIONER BROGAN: That's my point. If, in
9 fact, the Lane family decided to sell the property,
10 they would have the ability to transfer the lease.
11 That having been said, if someone wanted to
12 take over the lease and purchase the property and had
13 a different idea in mind for an activity to engage
14 there, they would have to meet code as well as any
15 permitting requirements to engage in that activity if
16 it did require a change in either.
17 MR. HARDEN: Commissioner Brogan, it would
18 require a future land use amendment to our
19 comprehensive plan, and then a rezoning which has to
20 go in front of the Jacksonville city council. And as
21 the person who does that unfortunately for a living,
22 I can tell you that I don't think there is much
23 opportunity for that.
24 But, yes, our zoning code and land use
25 activities restrict that type of business at this
79
1 time.
2 COMMISSIONER BROGAN: Thank you.
3 MR. HARDEN: Let me again try to quickly go
4 through some of the changes we made to the original
5 proposed submerged land lease that originally was
6 approved and that conditioned by the DEP.
7 On the north side of our property is a city
8 dock. The angle coming out in our currently -- the
9 lease we currently have, not the one we are proposing
10 -- blocked some of the boats coming out. We cut off
11 the top north corner to allow for activity by boats
12 coming out of the city boat dock on that north side.
13 The land lease Ms. Dozier made reference to
14 from December of '94, we have not used in the entire
15 time we have had it. We paid our rent payments.
16 However, we moved our boats and are paying almost
17 $10,000 a month at the old Jacksonville shipyards to
18 put our boats there because the city asked us not to
19 use that during the time of these negotiations.
20 They lingered on and we still haven't used
21 that. So we never used the lease. We always paid
22 for it. And as part of this proposal, we are going
23 to surrender that submerged land lease and move that
24 offshore augering area, if you will,to a location off
25 Exchange Isle and we are going to ask you for that
80
1 proposal as a location the city proposes.
2 This land lease and our deal with the city
3 requires that the Lane family for a period of 20
4 years not apply for any additional submerged land
5 lease within 4,000 feet of this site. So it's a
6 20-year resolution to this issue.
7 I know some of you raised the issues about
8 coming back and forth. Actually this is only the
9 second time we have been back, but it's been going on
10 so long it seems like it's been back and forth.
11 But other than the moving of the submerged land
12 lease we already have, my clients agreed not to apply
13 for any submerged land leases for 20 years.
14 There is a limitation on the new dock we can
15 build. It's a floating dock. It's not -- it's a
16 dock that will rise and fall with the tides, it is
17 not what I call a substantial structure but there
18 will be not allowed for any work to be on that dock.
19 It's only one reason.
20 There is a marine rail on the south middle part
21 of our property. My clients can't move boats all the
22 way up on the marine rail because the dock -- there
23 is no way to guide the boat.
24 This dock will allow only for the guidance of a
25 boat up into our marine rail so we can do work up on
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1 the site off the marine rail.
2 Since the last Cabinet aides meeting, at the
3 behest of originally Ms. Dozier and of the city, we
4 now agreed that we will give up the submerged land
5 lease to the south side of that proposed dock. So
6 that has cut out -- it was a 130-day limit on use of
7 that property anyway. Now even that 130 day use is
8 gone.
9 We have made very substantial compromises to
10 condition this lease to try to comply with everyone's
11 request. The mayor supports it. The city council
12 supports it, and the Lanes don't want to expand their
13 business. They want to continue the business they
14 have operating there. This submerged land lease will
15 only allow them to do that.
16 The conditions are such that they can't add any
17 other activity to the site in light of the fact they
18 can't use the south side of the property and the
19 limitations on the new dock.
20 I know I am running out of time. I want to
21 save some time if people have any questions. But I
22 would ask you to support DEP and the Jacksonville
23 City Council and Mayor of City of Jacksonville with
24 the resolution that we have come to.
25 ATTORNEY GENERAL BUTTERWORTH: Were you
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1 representing the applicant back in 1994?
2 MR. HARDEN: I did.
3 ATTORNEY GENERAL BUTTERWORTH: When I did ask
4 that question as to whether or not the applicant was
5 in violation of the lease on that day of the Cabinet
6 meeting, were you aware that the applicant, that your
7 client was in violation of the lease at that time?
8 MR. HARDEN: I was not, Attorney General
9 Butterworth. In fact, I told this story to the
10 Cabinet aides several times.
11 I walked out of this meeting, I don't know my
12 way around here, but I know that round staircase, not
13 this one right here but the next one over. And I was
14 halfway up the stairs and Mr. Greene from the DEP
15 said: Look, your submerged land lease doesn't cover
16 where your dock is now. That's the very first time I
17 heard about that. I said -- nobody --
18 ATTORNEY GENERAL BUTTERWORTH: Mr. Greene from
19 where?
20 MR. HARDEN: From the DEP.
21 ATTORNEY GENERAL BUTTERWORTH: Mr. Greene was
22 sitting in the room when I asked the question?
23 MR. HARDEN: I don't know the answer to that.
24 ATTORNEY GENERAL BUTTERWORTH: Ms. Wetherell,
25 when I asked the question back in '94, someone from
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1 your staff knew this particular applicant was in
2 violation of this lease at that time and didn't even
3 tell me about it?
4 MRS. WETHERELL: No, sir. On that day -- and I
5 have gone back and looked at the transcript. On that
6 day when I stood up here and you asked that question
7 and I did not respond, and then I think Gallagher
8 followed you, I did not know at that point in time.
9 And I asked Mr. Greene yesterday, and he said at that
10 point in time, he did not know.
11 What he told this gentleman was that if he had
12 been in violation, he needed to get out there and get
13 those violations taken care of, that we would have
14 somebody out there immediately is the way Mr. Greene
15 understood it.
16 We have gone back, sir, and looked at all of
17 our staff's files. And in November, in November of
18 that same year, we can document that our staff did
19 know at that point in time. So it was not good staff
20 work. They did not tell the senior team that day
21 that they thought there were some violations.
22 ATTORNEY GENERAL BUTTERWORTH: Did you think it
23 incumbent upon yourself or your staff to advise
24 Commissioner Gallagher and myself and the Governor?
25 Because I believe that what was passed that day was
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1 Commissioner Gallagher's motion which says if lessee
2 fails to observe the boundary of offshore lease area
3 or nearby lease area or violates any of the terms of
4 the lease, then a fine will be imposed and the lease
5 will automatically and immediately be revoked, and
6 the lease will be automatically and immediately
7 revoked.
8 You obviously did not contact us about that.
9 In fact, in July of 96, under delegation of the
10 authority extended to your office, you expanded the
11 lease for an additional five years until May 5 or the
12 year 2001.
13 MS. WETHERELL: On those points, first of all,
14 in November, the records show in November that when
15 it was suggested -- I think it was Ms. Dozier who was
16 the one who said she thought there were violations --
17 sent an inspector out there, and the records show
18 aerials were taken and that aerials were made to the
19 Cabinet aides.
20 In fairness to them, aerials are hard to read.
21 Perhaps they did not recognize there were
22 violations. They had the same information my staff
23 had at that point in time.
24 At that point of the Cabinet meeting, the
25 senior staff did not know that there were
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1 violations. That was not good staff work. I grant
2 you it was not good staff work, and we are not happy
3 with that.
4 Now, in regard --
5 ATTORNEY GENERAL BUTTERWORTH: Mr. Harden, when
6 you left this room, did you find out when you got
7 back to Jacksonville that your client was, in fact,
8 in violation of the lease?
9 MR. HARDEN: I did not, Attorney General
10 Butterworth.
11 ATTORNEY GENERAL BUTTERWORTH: Never found out?
12 MR HARDEN: I did not --
13 ATTORNEY GENERAL BUTTERWORTH: Today is the
14 first day you found it out?
15 MR. HARDEN: May I answer?
16 ATTORNEY GENERAL BUTTERWORTH: Yes, sir.
17 MR. HARDEN: When Mr. Greene told me that on
18 the -- when I got back to Jacksonville, I called Bob
19 Moore, who is the consulting engineer who is the one
20 who deals with these issues. I explained to him what
21 I thought Mr. Greene told me. He immediately
22 contacted the DEP, and they began working on this
23 issue.
24 The state issued a permit to build that dock.
25 The dock had been built there for a substantial
86
1 period of time. Attorney General, had I known that
2 that was an issue, we would have filed for that lease
3 at that time.
4 There is a lot of anecdotal information about
5 proposed and alleged violations. I think the fact of
6 the matter is that every time anything has been
7 called to Mr. Lane's attention, he's acted
8 immediately. And he has done everything the zoning
9 department has asked him to do, the Corps of
10 Engineers asked him to do, and the Department of
11 Environmental Protection.
12 They proposed a TUA. He said to them at that
13 time I will cut that part of the dock off and remove
14 it and then we'll file for it, then I will build it
15 back. They said well, we didn't -- none of us
16 thought this issue would go on for this length of
17 period of time, and we thought it would be resolved
18 quickly with the TUA location.
19 So the fact of the matter is it was built in
20 compliance with the permits or the construction
21 permits which showed construction outside the
22 submerged land lease in effect at that time.
23 ATTORNEY GENERAL BUTTERWORTH: If I may
24 continue. This is following on questions of
25 Commissioner Nelson and Commissioner Brogan. In
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1 response to Commissioner Brogan's questions reference
2 a gambling vessel, you made some comment about 186
3 foot vessel. You made a response it would only hold
4 a 186-foot vessel.
5 MR. HARDEN: The floating dock we would build
6 is limited to 185 feet in length, was what I was
7 trying to convey to you.
8 ATTORNEY GENERAL BUTTERWORTH: Many gambling
9 vessels in the State of Florida are less than that,
10 significantly less than that. I think all of them
11 are with the exception of a few.
12 Is it the intent of your client, the applicant,
13 to put a gambling vessel on this land?
14 MR. HARDEN: It is not, and I would encourage
15 you, General Butterworth, to add a condition that no
16 gambling vessels be placed anyway in the submerged
17 land lease.
18 ATTORNEY GENERAL BUTTERWORTH: Okay. I will do
19 that.
20 MR. HARD: I appreciate that. I think that
21 would resolve that question.
22 I will tell you that the Lanes are not in the
23 gambling business. This is a business that's run by
24 a dad and two sons. It's a way they make their
25 living, and that is not their intention, and we would
88
1 whole heartedly appreciate your drafting that
2 condition.
3 ATTORNEY GENERAL BUTTERWORTH: Thank you.
4 GOVERNOR CHILES: Further questions?
5 TREASURER NELSON: I had heard a new piece of
6 information. I have been trying to -- with all these
7 colored charts and everything, and what I thought you
8 just said about the lease doesn't comport with this
9 green and pink colored chart that I have.
10 Did I hear you say that there will be no
11 proposed lease area on the south side of the floating
12 dock?
13 MR. HARDEN: That is correct.
14 TREASURER NELSON: Okay. Well, then, that's
15 wrong because --
16 MR. HARDEN: I tried to draw on there, if
17 that's the same map. I colored in pen that south of
18 the -- Ms. Dozier lives to the south side. That
19 south of the floating dock -- and I don't know if
20 that map has the floating dock.
21 TREASURER NELSON: Yes, it does.
22 MR. HARDEN: Okay. If it shows in there, that
23 anything south of that, except for an area for the
24 dock to float back and forth, limited 5 or 10 feet,
25 we originally agreed only to use for 130 days. We
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1 now agreed with the DEP to just take that out of the
2 proposed submerged land lease.
3 TREASURER NELSON: So then the total square
4 footage of the issue, Madam Secretary, before the
5 Cabinet today then is less than what was -- it says
6 that you would extend the lease by 37,463 square
7 feet. Is that a correct figure?
8 MS. WETHERELL: I want to get my staff to
9 verify that.
10 MR. HARDEN: I will give you the exact numbers.
11 There actually have been three different pieces taken
12 out of that number. There is the last one, the south
13 side. If you will look on the top right-hand corner,
14 which would be the northwest corner of the area, that
15 came out subsequent to that calculation. And indeed
16 part of that is out of our existing lease. We even
17 cut back some of our existing lease. And then on the
18 top left-hand corner, which is the southwest corner
19 of the lease, we have cut some of that out and that
20 was taken out after that calculation.
21 TREASURER NELSON: Madam Secretary, do you
22 happen to have a map of what is presently proposed?
23 MS. WETHERELL: No, we do not. This is Ernie
24 Frye who is our district director in this area. We
25 do not.
90
1 TREASURER NELSON: What about the square feet?
2 MR. FRYE: It will be less than what is in the
3 agenda item. We did not have a chance to go back and
4 readdress that. It has to be surveyed back in, once
5 we understand where the actual dock is going to be
6 located and all that.
7 TREASURER NELSON: How will we be able to
8 identify with what we pass today on what is the
9 submerged lease if it's not yet identified as an item
10 in front of us?
11 MR. HARDEN: The reason it hasn't -- it was
12 surveyed up until last week. At the aides meeting,
13 Ms. Dozier and I met outside and she said if you are
14 not going to dock over there, will you agree to take
15 that out of your lease?
16 And I indicated to Mr. Frye, that's fine.
17 Whatever you think we need to take off the side of
18 the dock for maintenance of the dock and construction
19 of the dock, take everything else out of that. So
20 that's why the --
21 TREASURER NELSON: So what you're-- let me
22 address this to Madam Secretary. So what you are
23 representing is that we would be voting on something
24 that is less than 37,463 square feet?
25 MS. WETHERELL: Yes, sir. And if you would
91
1 like, once the survey is done, we can provide that to
2 you.
3 MR. FRYE: There is, sir, in the lease
4 condition, there is a special lease condition that
5 would say that would be reduced once we have the
6 survey and all the requirements for that.
7 COMMISSIONER CRAWFORD: I move staff
8 recommendation.
9 SECRETARY MORTHAM: Seconded.
10 GOVERNOR CHILES: Moved and
11 seconded. Discussion?
12 TREASURER NELSON: I want -- on a public policy
13 matter. I need to get on the record with the DEP a
14 question about the public trust doctrine, in section
15 11 of article 10 of the Florida Constitution,
16 sovereignty lands.
17 "The title to lands under navigable waters" --
18 I am quoting from the constitution -- "within the
19 boundaries of the state which have not been
20 alienated, including beaches below the mean high
21 water lines, is held by the state by virtue of its
22 sovereignty, in trust for all the people. Sale of
23 such lands may be authorized by law but only when in
24 the public interest. Private use of portions of such
25 lands may be authorized by law but only when not
92
1 contrary to the public interest."
2 And so, I would like for the record, either you
3 or your staff, perhaps Mr. Frye, your recommendation
4 to us to allow the applicant to use additional
5 sovereign public lands for its activities. Can you
6 explain how you apply the public trust doctrine to
7 this particular lease request?
8 MS. WETHERELL: I could in general, but since
9 the staff did it for this particular one, I will let
10 them. But it certainly is applied in every case in
11 every application that you see before you.
12 You want to comment on it, Pete. It's not your
13 application, Pete, but do you want to explain it in
14 general? Pete Mallis.
15 MR. MALLIS: I really can't address the
16 particular application. I think that as a matter of
17 practice, the way that we have typically addressed
18 the not contrary to the public interest, Treasurer
19 Nelson, is that that is more of a burden on the state
20 to prove it would be contrary to the public interest
21 rather than the contrary.
22 In other words, when we have an application for
23 a use of land within an aquatic preserve, for
24 example, there is a statutory requirement that those
25 must be in the public interest. And I think we have
93
1 tended to look at that as the applicant has the
2 burden of demonstrating to your satisfaction why that
3 is in the public interest.
4 In the case of the lesser standard, if you
5 will, not contrary to the public interest, I think we
6 have tended to assume that unless there is some
7 evidence of why it would be contrary to the public
8 interest, that's sort of a presumption that it would
9 be.
10 TREASURER NELSON: Well, in this particular
11 instance, when you balanced the pros and cons, how
12 did you determine that this lease was not contrary to
13 the public interest?
14 MS. WETHERELL: This is not in Pete's shop. I
15 am just finding if we have anyone here who processed
16 that application who would tell you how they did it
17 on this specific one.
18 COMMISSIONER BROGAN: While we are waiting for
19 that, let me ask a question. I am not trying to do
20 your job for you, but I would have to believe that we
21 hold a number of leases similar to this, public land
22 which is leased, submerged land which is leased to
23 industrial or like purposes.
24 I guess, just sitting and listening to the
25 Commissioner's question, one obvious response would
94
1 have to be that since it is industrial, therefore,
2 serving for profit purpose, might seem a little bit
3 lean in terms of public interest. But when you
4 consider the residuals of the for profit industrial
5 interests, does that not mean that the tax residuals
6 and the economic base expansion via jobs, et cetera,
7 serve public interest?
8 MS. WETHERELL: I certainly think that's true,
9 but I tend to think of it more in terms of the
10 services that are provided to the public, more than I
11 do in terms of the economic benefit to the
12 applicant.
13 You think in terms of what service does this
14 provide to the public at large. Transportation, the
15 provision of services to these kinds of vessels that
16 provide a public good. So that's the way I look at
17 it.
18 SECRETARY MORTHAM: If I might, Governor, I can
19 certainly see that you would look at the other side.
20 But I certainly would think that the economic
21 development opportunities for the area as well as
22 jobs are a significant public interest, no matter
23 what way you cut it. And I would think that would
24 meet the test, if nothing else.
25 ATTORNEY GENERAL BUTTERWORTH: I have one
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1 question about something. I guess taken in light of
2 the position that this board has delegated much
3 authority to your department in this area, it may not
4 be a bad idea for there to be a determination of
5 public interest when you use that authority so when
6 it circulates to us, we will see what you used in
7 order to determine that that, in fact, that
8 particular lease that you are authorizing with your
9 delegation is, in fact, in the --
10 MS. WETHERELL: To know what our rationale is
11 behind each one for public interest.
12 MR. FRYE: Excuse me. But one of the things
13 that was brought to my attention is this is a
14 water-dependent business. They have to have the use
15 of the lands to conduct their business. And that was
16 one of the main criteria that was used in the public
17 interest test. But the specific staff made that
18 determination are not here.
19 TREASURER NELSON: I am asking as a matter of
20 policy, not so much with regard to this particular
21 one, but we are operating under the aegis of the
22 constitution, and the public interest test should be
23 a test that is there.
24 And so as you address these future matters to
25 us, I would like to hear when you weigh the pros and
96
1 cons how do you come down on the side that a lease is
2 in the public interest.
3 Your answer, Mr. Frye, to that question with
4 regard to this question is --
5 MR. FRYE: It's my understanding it was a
6 water-dependent industrial structure that needed the
7 activity over the submerged land to conduct their
8 business.
9 COMMISSIONER BROGAN: And that business then,
10 as we discussed, was determined to be in the best
11 interest of the public for a variety of reasons.
12 MR. FRYE: Yes, sir.
13 MS. WETHERELL: I understand how you are
14 struggling, and I think if our staff were to have an
15 explanation of their public interest determination,
16 then you would have that before you.
17 COMMISSIONER BROGRAN: Like Commissioner
18 Nelson, I am not struggling with this one. I think
19 his question about broad public policy is a relevant
20 one, and that is simply that even though this one is
21 probably a little obvious, there may come a time
22 where there was one that is cut much finer or maybe
23 even falls on the side of not in the public interest.
24 And I think if we are being asked to make those
25 decisions, especially in cases that are not as
97
1 obvious, that it is important that we know upon what
2 basis that decision was made.
3 MS. WETHERELL: I suspect that our staff who
4 looks at these, you are right, Mr. Treasurer, we see
5 so many of these types of activities it becomes
6 almost rope for them. They see the same type of
7 activity, and based on what they have previously
8 issued, make decisions.
9 If you all want something in writing as to what
10 we see as the public interest, we can provide that.
11 GOVERNOR CHILES: Got a motion. Got a second.
12 ATTORNEY GENERAL BUTTERWORTH: I want to amend
13 --
14 COMMISSIONER BROGAN: Seconded.
15 ATTORNEY GENERAL BUTTERWORTH: -- in accordance
16 with Mr. Harden agreeing we amend this particular
17 item to not allow any type of casino gaming vessels
18 to be docked at that location, in whatever words.
19 SECRETARY MORTHAM: Second.
20 GOVERNOR CHILES: That's been -- that's
21 included in the --
22 COMMISSIONER BROGAN: I will include that in my
23 second.
24 GOVERNOR CHILES: All right. Without
25 objection, the item is approved.
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1 MS. WETHERELL: That concludes our agenda.
2 Thank you.
3 (Proceedings concluded at 11:45 a.m.)
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2 CERTIFICATE OF REPORTER
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6 STATE OF FLORIDA:
7 COUNTY OF LEON:
8 I, SANDRA L. DiBENEDETTO-NARGIZ, do hereby
9 certify that the foregoing proceedings were taken before
10 me at the time and place therein designated; that my
11 shorthand notes were thereafter translated under my
12 supervision; and the foregoing pages numbered 1 through
13 99 are a true and correct record of the aforesaid
14 proceedings.
15 I FURTHER CERTIFY that I am not a relative,
16 employee, attorney or counsel of any of the parties, nor
17 relative or employee of such attorney or counsel, or
18 financially interested in the foregoing action.
19 DATED THIS 26TH DAY OF JUNE, 1997.
20
21
22 ____________________________
SANDRA L. DiBENEDETTO-NARGIZ
23 100 SALEM COURT
TALLAHASSEE, FLORIDA 32301
24 (904) 878-2221
800-934-9090
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