Minutes / 11-08-99~ ~
MINUTES OF THE REGULAR MEETING OF THE ATLANTIC
BEACH CITY COMMISSION HELD IN CITY HALL, 800
SEMINOLE ROAD AT 7:15 PM ON MONDAY, NOVEMBER 08,
1999
PRESENT: John Meserve, Mayor
Richard Beaver
Mike Borno
Theo Mitchelson
Dezmond Waters, Commissioners
AND: Maureen King, City Clerk
Alan C. Jensen, City Attorney
James Hanson, City Manager
The meeting was called to order by Mayor Meserve at 7:15 p.m. The
Invocation was offered by Commissioner Beaver followed by the Pledge
of Allegiance to the Flag.
1. Approval of the minutes of the Regular Meeting held
November 2, 1999
Motion: Approve minutes as presented.
The Mayor asked for corrections or amendments to the minutes. There
were none, and the minutes were unanimously approved as prepared.
2. Courtesy of the Floor to Visitors:
A. Steven Roberts of 795 Plaza stated that over the past few years
several accidents had occurred where either his house, car or fence had
been damaged by drunk drivers running through the intersection of Royal
Palms and Plaza and into his yard. As a deterrent to future accidents, Mr.
Roberts requested that either a stop light or speed bumps be installed at the
intersection.
Mayor Meserve referred the request to City Manager Hanson and Public
Safety Director Thompson.
B. Jim Dipietro of 785 Plaza, the next door neighbor of Mr. Roberts,
distributed photographs of the most recent accident which occurred at Mr.
Roberts' home and also requested that speed bumps be installed at the
intersection. Mr. and Mrs. Dipietro disagreed with the city's removal of
the cross in Howell Park.
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November 8, 1999
Commissioner Waters requested that the city investigate other safety
options, such as a steel barrier, before installing speed bumps.
C. J.P. Marchioli of 414 Sherry Drive complained about speeding on
Sherry Drive.
D. Sally Clemons of 1638 Park Terrace West spoke concerning,
Resolution 99-29 pertaining to the City Attorney's contract. She believed
the Charter was ambiguous concerning his' position and duties and felt the
Commission should delay its vote on this matter until the November 22,
1999 meeting.
E. Stephen Kuti of 1132 Linkside Drive suggested that the
Commission receive input and discuss technical matters during the first
meeting of the month and vote on the mattex the second meeting of the
month. He felt this would allow the Commission time to address citizen
inquires concerning technical matters.
F. Nancy White of 1729 Seminole Road complained of speeding on
Seminole Road.
G. Lorin Mock, Chief of Operations, Jacksonville Fire and Rescue
Department
Mayor Meserve stated that he had requested that a representative from the
Jacksonville Fire and Rescue Department be present to address public
comments concerning the recent house fire on Beach Avenue
Lorin Mock, Chief of Operations for the Jacksonville Fire and Rescue
Department, reported to the City Commission regarding a recent fire at a
home on Beach Avenue. The fire was apparently caused by faulty wiring
to an electrical fixture in the garage, and caused extensive damage to the
home. Chief Mock stated that the response time to the fire was four
minutes from the time the call was received and dispatched by the city. He
indicated that construction in the area impeded ingress to the site of the
fire, but it was not a significant problem. Chief Mock indicated that the
firefighters did not try to use or unwrap a new fire hydrant, and they were
able to connect to two other fire hydrants which provided adequate water
pressure to fight the fire.
Commissioner Borno pointed out that water lines and fire hydrants were
being replaced in the area as part of the city's on-going project to upgrade
its water system.
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November 8, 1999
Commissioner Waters praised the fire department for preventing the fire
from spreading to the adjacent dwelling and stated that in the future, the
city should carefully consider granting variances which would allow such
close construction.
3. Unfinished Business from Previous Meeting
There was no unfinished business.
4. Consent Agenda:
A. Acknowledge receipt of monthly reports from Building, Code
Enforcement, Occupational License and Recreation
Departments (City Manager)
B. Acknowledge receipt of Public Works Department Project
Status Report (City Manager)
Commissioner Waters requested that Item C be removed from the Consent
Agenda for discussion.
Motion: Approve Consent Agenda Items A and B as presented.
There was no discussion and the motion carried unanimously.
C. Authorize the purchase of two replacement trucks for Public
Works under State Contract Bid No. 99-07-0913 at a cost of
$28,045.00 and two replacement trucks for Public Works under
State Contract Bid No. 97-05-0915 at a cost of $33,222.00 (City
Manager)
Motion: Authorize the purchase of two replacement trucks for
Public Works under State Contract Bid No. 99-07-0913 at a cost
of $28,045.00 and two replacement trucks for Public Works
under State Contract Bid No. 97-05-0915 at a cost of $33,222.00.
City Manager Hanson briefly explained the request and pointed out that the
State Contract prices were lower than quotes obtained from local dealers.
Commissioner Waters inquired as to the need for a four wheel drive vehicle
and Public Works Director Kosoy explained that it was needed to go on the
beach and other rough terrain areas of the city.
There being no further discussion, the motion carried unanimously.
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November 8, 1999
5. Committee Reports:
There were no Committee Reports.
6. - ~ Action on Resolutions:
A. Resolution No. 99-29
A RESOLUTION OF THE CITY OF ATLANTIC BEACH
APPOINTING ALAN C. JENSEN AS CITY ATTORNEY,
FIXING HIS DUTIES AND RATE OF COMPENSATION,
AND PROVIDING AN EFFECTIVE DATE (City Commission)
Motion: Adopt Resolution No. 99-29.
Commissioner Borno felt the following language should be retained in
Section 2 of the document: "and shall provide written legal opinions on any
matters when requested by any member of the City Commission".
Commissioner Borno felt that this service should be included as part of the
monthly retainer fee paid to City Attorney Jensen.
Amendment to the motion: Retain in Section 2 of the
Resolution approving the City Attorney Contract
document: "and shall provide written legal opinions on any
matters when requested by any member of the City
Commission".
A brief discussion concerning payment for providing written legal opinions
ensued. City Attorney Jensen felt the work was covered under Section 3
of the contract.
After further discussion, the amendment and second were withdrawn.
There being no further discussion, the motion carried unanimously.
Motion: The effective date of the City Attorney Contract to be
December 1,1999.
There was no discussion and the motion carried unanimously.
7. Action on Ordinances:
A. Ordinance No. 58-99-27 Introduction and First Reading
AN ORDINANCE OF THE CITY OF ATLANTIC BEACH,
FLORIDA, AMENDING CHAPTER 2, ADMINISTRATION,
ARTICLE VI, EMPLOYEE BENEFITS, DIVISION 3,
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November 8, 1999
RETIREMENT SYSTEM, PROVIDING FOR THE
TERMINATION OF FIREFIGHTER RELATED
PROVISIONS, PROCEDURES AND BENEFITS;
PROVIDING THAT SUCH TERMINATION SHALL
- ~ COMPLY WITH CHAPTER 175, FLORIDA STATUTES;
PROVIDING FOR A SAVINGS CLAUSE; PROVIDING FOR
SEVERABILITY AND PROVIDING FOR AN EFFECTIVE
DATE (City Manager)
Mayor Meserve read Ordinance No. 58-99-27 by title only.
Motion: Approve Passage of Ordinance No. 58-99-27 on first
reading.
City Manager Hanson explained that adoption of the ordinance allowed the
Pension Board to transfer funds in accordance with Florida Statute 175.361,
but it did not resolve the dollar amount to be transferred to the City of
Jacksonville Police and Fire Pension Fund, which was still in question.
Commissioner Mitchelson inquired as to the dollar amount to be
transferred. Human Resource Director Foster explained in detail the
guidelines for disbursement of the funds as listed in his memo dated
November 2, 1999 which is attached and made part of this official record
as Attachment A.
Mayor Meserve suggested that this issue, as well as that of Sherry Drive, be
worked out during further discussion with the City of Jacksonville.
Mayor Meserve indicated that the final reading and public hearing would
be held November 22, 1999.
There was no more discussion and the motion carried unanimously.
8. Miscellaneous Business:
A. Selection of Mayor Pro Tempore (Mayor)
Motion: Appoint Commissioner Rick Beaver as Mayor Pro
Tempore.
There was no discussion and the motion carried unanimously.
B. Public Hearing and action on an application for aUse-by-
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November 8, 1999
Exception filed by Gerardo Gonzalez to operate a the and stone
business at 20 West 3'd Street, on property described as Lots 1-
3, Block 27, Section H, Atlantic Beach, Zoned CG (City
Manager)
Motion: Grant Use-by-Exception filed by Gerardo Gonzalez to
operated a the and stone business at 20 West 3'd Street on
property described as Lots 1-3, Block 27, Section H, Atlantic
Beach Zoned CG as recommended by the Community
Development Board. (The Community Development Board
recommended approval with the conditions that five parking spaces
be provided for this use, that no outside storage be permitted, that
delivery truck traffic avoid the nearby residential neighborhood, and
that the exception be granted to the applicant only and for this
location only).
Mayor Meserve opened the public hearing and no one spoke for or against
the request. The public hearing was closed.
There was no discussion and the motion carried unanimously.
C. Authorize the City Attorney to draft an ordinance closing city
parks to the public between sunset and sunrise (City Manager)
Motion: Authorize the City Attorney to draft an ordinance
closing city parks to the public between sunset and sunrise.
City Manager Hanson explained the need for the ordinance and stated that
exceptions to the times would be made for parks with lighted courts.
There was no discussion and the motion carried unanimously.
D. Authorize the Mayor to sign the Certificate of Acceptance of
Subgrant Award for Jordan Park Community Center II (City
Manager)
Motion: Authorize the Mayor to sign the Certificate of
Acceptance of Subgrant Award for Jordan Park Community
Center II.
City Manager Hanson provided background information for the request.
There was no discussion and the motion carried unanimously.
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November 8, 1999
E. Authorize staff to apply for an Emergency Management,
Preparedness, and Assistance Grant, and authorize the Mayor
to sign the related paperwork (City Manager)
=Motion: Authorize staff to apply for an Emergency
Management Preparedness and Assistance Grant, and
authorize the Mayor to sign the related paperwork.
There was no discussion and the motion carried unanimously.
F. Authorize expenditure of $2,587.32 to Decision One
Corporation for essential computer equipment maintenance for
one year (City Manager)
Motion: Authorize the expenditure of $2,587.32 to Decision One
Corporation for essential computer equipment maintenance for
one year.
There was no discussion and the motion carried unanimously.
G. Approve Change Order in the amount of $14,375.00 for
additional work in the Water Systems Improvement Project bid
under Bid No. 9899-26 (City Manager)
Motion: Approve Change Order in the amount of $14,375.00 for
additional work in the Water Systems Improvement Project bid
under Bid No. 9899-26.
Commissioner Waters inquired if someone from staff had inspected the
area. Public Works Director Kosoy indicated that the City Inspector Ernie
Beadle had inspected the site and found the water table to be higher in that
particular area.
There being no further discussion, the motion carried unanimously.
H. Authorize staff to negotiate a contract with Smith & Gillespie
fora Sewer Master Plan, and if unable to negotiate a
satisfactory contract, to negotiate with the next most qualified
firm (City Manager)
Motion: Authorize staff to negotiate a contract with Smith &
Gillespie for a Sewer Master Plan, and if unable to negotiate a
satisfactory contract, to negotiate with the next most qualified
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November 8, 1999
firm.
City Manager Hanson explained that the City followed the requirements of
the Consultants Competitive Negotiations Act and selected the top three
firms°to perform the required services.
Commissioner Waters inquired why staff could not produce the Sewer
Master Plan. City Manager Hanson responded that an outside engineer had
the required expertise, as well as the capability to produce Geographic
Information Systems (GIS) maps and software for the city. He further
indicated that the Master Plan would also include a Ten Year Capital
Improvement Plan.
Mayor Meserve viewed the Ten Year Capital Improvement Program as a
first step to obtaining long range plans for all departments. Commissioner
Mitchelson concurred with the need for long range plans.
There being no further discussion, the motion carried unanimously.
9. City Manager Reports:
City Manager Hanson
• Reported that the landscape plans for the flyover had been delivered
and would be available to the Commission, the Atlantic Beach
Beautification Committee and the Mayport Road Beautification
Group. He requested Commission comments on the landscaping by
November 19t". He pointed out the city would be maintaining the
landscaping.
• Reported that Glegg Rees, a long time employee of the Public
Works Department, had passed away.
10. Reports and/or requests from City Commissioners and City
Attorney
City Attorney Jensen
• Distributed copies of his research into case law concerning the
cross in Howell Park. A copy of this case law is attached and made
part of this official record as Attachment B.
Commissioner Waters
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November 8, 1999
Inquired if "No Truck" signs could be placed in the Town Center
area since large delivery trucks had damaged the new curb.
Public Safety Director Thompson indicated that state law did not
} allow the city to limit the types of delivery vehicles that use the
streets in a particular area., but he would look into the damage issue.
Announced that the next meeting of the Town Center Project
Oversight Committee would be held on Tuesday, November 9`" at
6:00 p.m. at the Sea Turtle Inn and invited Mayor Meserve to
attend.
Commissioner Mitchelson
Reminded the Commissioners that a letter had been sent to the
Jacksonville Transportation Authority (JTA) expressing the city's
concerns relating to the Mayport Road/Atlantic Boulevard flyover
and inquired if a meeting would be scheduled to address those
concerns.
Mayor Meserve responded that Roger Sharp of the JTA would be
attending a meeting of the Mayport Road Beautification Group on
November 15`h at which time those concerns would possibly be
addressed.
Commented that Carolyn Woods, a resident of the city and a
landscape architect, had designed the landscape plans for Mayport
Road.
A brief discussion concerning high maintenance plants ensued and
a set of plans was given to Commissioner Beaver for his review and
input.
Commissioner Borno
With reference to the cross in Howell Park, Commissioner Borno
stated he had heard that unless you were a resident of the State of
Florida for six months, you could not bring suit. He inquired if this
was correct.
Commissioner Beaver
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November 8, 1999
• Requested further discussion on Mr. Kuti's request and stated that
he also felt additional time was needed to review certain agenda
items.
• ~ ~ Noted that the Dagley property was visible from the Tide Views
Preserve and requested that the City Manager prepare a report on the
history of the property.
• Indicated that the had observed the Atlantic Beach fire trucks on
San Pablo Road on several occasions and inquired if the City of
Jacksonville had increased its service area and if the Atlantic Beach
station was a first responder to that area.
• Indicated he would like the City Manager to contact the appropriate
people concerning opening the Plaza Road entrance to the Atlantic
Beach Post Office for residents' use.
Mayor Meserve
• Reminded everyone of the Tree Lighting Ceremony on December
4rh
• Announced that the Mayport Waterfront Partnership would meet at
8:00 a.m. on Tuesday, November 9`h
There being no further discussion or business to come before the
Commission, the Mayor declared the meeting adjourned at 8:55 p.m.
John Meserve
Mayor /Presiding Officer
ATTEST:
Maureen King
Certified Municipal Clerk
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_ ATTACHMENT A
NOVEMBER 8, 1999 COMMISSION MEETING
CITY OF ATLANTIC BEACH
CITY. COMMISSION MEETING
STAFF REPORT
AGENDA ITEM: First reading of Ordinance to terminate the firefighter provisions of
the City's Pension Plan.
SUBMITTED BY: George Foster, Human Resource Manager
DATE: November 2, 1999
BACKGROUND: On October 11, 1999, the City Commission completed the first
reading of Ordinance 58-99-26 changing the City's Pension Plan to
delete references to Fire employees and establishing separate
General employee and Police employee pension plans. The public
hearing and final reading for this ordinance is pending an actuarial
cost impact statement and State of Florida, Division of Retirement,
review and approval.
The attached ordinance has been prepared by the Pension Board
law firm of Sugarman and Susskind and, once finalized, will allow
the Pension Board to transfer appropriate funds in accordance with
Florida Statute 175.361 (attached) to the City of Jacksonville
Police & Fire Pension Fund.
The City of Atlantic Beach entered into an agreement to contract
Fire Services from the City of Jacksonville effective June 1, 1999.
This agreement stated that all assets and liabilities of the Atlantic
Beach Fire Department pension Plan existing as of the date of the
merger, (approximately 1.5 million dollars) shall be transferred on
the date of the merger to the Jacksonville Police & Fire Pension
Fund.
BUDGET: The current assets within the Atlantic Beach Fire Pension Fund are
invested within equities and/or bonds; therefore, the market value
of the Atlantic Beach Fire Pension Fund varies on a day to day
basis.
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The Atlantic Beach Pension Board is.required to disperse funds in
accordance the specific guidelines of FS 175.361 with any "surplus"
assets being returned to the City of Atlantic Beach, less return to
_ „ the state of the state's contributions, i.e., FS 175 funds. Therefore,
the Pension Board may not be able to provide the City of
Jacksonville with all assets of the Fire Pension Fund.
Since FS177.361 does not allow surplus funds to be sent to the City
of Jacksonville, the City of Atlantic Beach may have a legal
obligation to pay to the City of Jacksonville the difference between
what is allowed by FS 177.361 and "all funds." Although this
amount fluctuates based upon market conditions, it maybe
approximately $150,000.00 to $250,000.00.
RECOMMENDATION: That the City Commission:
1. Conduct a first reading of the attached ordinance.
2. Establish November 22, 1999 as the date for a final reading.
ATTACHMENTS: 1. Proposed Ordinance
2. FS175.361
REVIEWED BY CITY MANAGER:
ORDINANCE NO. 58-99-27
AN ORDINANCE OF THE CITY OF ATLANTIC BEACH,
FLORIDA, AMENDING CHAPTER 2, ADMINISTRATION,
ARTICLE VI, EMPLOYEE BENEFITS, DIVISION 3,
RETIREMENT SYSTEM, PROVIDING FOR THE
TERMINATION OFFIItEFIGHTERRELATED PROVISIONS,
- PROCEDURES AND BENEFITS; PROVIDING THAT SUCH
TERMINATION SHALL COMPLY WITH CHAPTER 175,
FLORIDA STATUTES; PROVIDING FOR A SAVINGS
CLAUSE; . PROVIDING FOR SEVERABILITY AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City of Atlantic Beach, Florida has entered into an agreement to contract
for Fire Services from the City of Jacksonville, Florida effective June 1, 1999; and
WHEREAS, the City of Atlantic Beach, Florida has agreed to transfer all active, retired and
vested Firefighters and necessary retirement system assets, liabilities and obligations to the City of
Jackson~711e, Florida; and
WHEREAS, the City ofJacksonville, Florida has accepted City ofAtlantic BeachFirefighters
as members of the City of Jacksonville Police & Fire Pension Fund with full rights and benefits in
accordance with Chapter 121 City ofJacksonville Ordinance code by enactment of Ordinance 1999-
472-E and in accordance with Resolutions 95-944-256 and 98-1006; and
WHEREAS, the City of Jacksonville, Florida has agreed to establish asub-account for all
retired and vested City of Atlantic Beach Firefighters to ensure that their rights in effect on the date
of the merger are protected in accordance with the terms of the prior Atlantic Beach Pension Plan;
and
WHEREAS, the City of Atlantic Beach, Florida must comply with Chapter 175 ofthe Florida
Statutes in executing said agreement:
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NOW THEREFORE, BE IT ENACTED BY THE CITY COMMISSION ON BEHALF
OF THE PEOPLE OF THE CITY OF ATLANTIC BEACH FLORIDA, AS FOLLOWS
Section 1. All Firefighter related benefits provided in the City of Atlantic Beach Code of
Ordinances, Chapter 2, Administration, Article VI, Division 3, Employer Benefits, Retirement System
shall terminate and no longer be of any force or effect effective 1 June 1999. The firefighter provision
of the pension plan shall terminate in accordance with Florida Statutes § 175.361 as applicable.
Section 2. The provisions adopted herein shall prevail over any existing sections of the
Atlantic Beach Code to the extent said existing sections contrary or inconsistent herewith.
Section 3. If any section, sentence, clause, word, or phase, of this ordinance is held
unconstitutional or invalid by a court of competent jurisdiction, then said holding in no way affects
the validity of any remaining portions of this Ordinance.
Section 4. This Ordinance shall take effect immediately upon its final passage and
adoption.
PASSED by the City Commission on first reading this day of
PASSED by the City Commission on second and final reading this
1999.
ATTEST:
City Clerk
Approved as to form and correctness:
Mayor
day of
1999.
City Attorney
Florida House of Representatives - 1999 CS/HS 261 Florida House of Representativestf 1999. ~ CS/HS 261
688-101-99 68B-101-99 ;''
1 1 governmental units, services, or functions as provided in
2 2 chapter 121, or upon written notice by the municipality or
3 3 special fire control district to the board of trustees that
4 4 contributions under the plan are being permanently
5 5 discontinued, the rights of all employees to benefits accrued
G 6 to the date of such termination and the amounts credited to
"i 7 the employees' accounts are nonforfeitable.The fund shall be
9 8 apportioned and distributed in accordance with the following
y 9 procedures:
10 ~ 10 (1) The board of trustees shall determine the date of
11 11 distribution and the asset value to be distributed, after
12 12 taking into account the expenses of such distribution.
13 13 (2) The board of trustees shall determine the method
la 14 of distribution of the asset value, that is, whether
15 15 distribution shall be by payment in. cash, by the maintenance
16 16 of another or substituted trust fund, by the purchase of
17 17 insured annuities, or otherwise, for each firefighter entitled
1B 18 to benefits under the plan as specified in subsection (3).
19 19 (3) The board of trustees shall. apportion the asset
20 20 value as of the date of termination in the manner set forth in
21 21 this subsection, on the basis that the amount required to
22 22 provide any given retirement income. shall mean the actuarially
23 23 computed single-sum value of such retirement income, except
24 175.361 Termination of plan and distribution of 24 that if the method of distribution determined under subsection
25 fund.--For any municipality, special fire control district, 25 (2) involves the purchase of an insured annuity, the amount
26 chapter plan, local law municipality, local law special fire 26 required to provide the given retirement income shall mean the
2~ control district, or local law plan under this chapter, the 27 single premium payable for such annuity.
28 plan may be terminated by the municipality or special fire 28 (a) Apportionment shall 'first be made in respect of
29 control district. Upon termination of the plan by the 29 each retired firefighter receiving a retirement income
30 municipality or special fire control district for any reason JO hereunder on such date, each person receiving a retirement
31 or because of a transfer, merger, or consolidation of 31 income on such date on account of a retired (but since
• .... 55 5 6
CODING:Words :_~~**.* are deletions; words underlined are .additions. COD ZHC:Words atrrekerr are deletions; words underlined are additions.
Florida )louse of Representatives - 1999
688-101-99
CS/HB 261 Florida House of Representatives - 1999
• 688-101-99
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decFased) firefighter, and each firefighter who has, by such
data, become eliyible Car normal retirement but has not yet
retired, in the amount required to provide such•retirement
incr~ma, pro•ided that, if such asset value is less than the
aggre~~ata of such amcunts, such amounts shall be
prapr~rtianately reduced so that the aggragate_of such reduced
amounts will be equal to such asset value.
(L•) If there is any asset value remaining attar the
ap~~cllonmant undar paragraph (a), apportionment shall next be
made in respect of each fire[ighter in the service o[ the
municipality oc special Eire control district on such date who
has completed at least 10 years of credited service, in why
haz-rentrrbntad-to the fira[ighters' pension trust Cund for at
least 10 years, and who 1s not entitled to an apportionment
under paragraph (a), in the amount required to provide khe
actuarial equivalent of the accrued normal retirement income,
based on the firefighter's credited service and earnings to
such data, and each former participant then entitled to a
benefit undar the provisions of s. 175.211 tithe has not by such
date reached his or liar normal retiremant data, in the amount
required to provide the actuarial equivalent of the accrued
normal retirement income to which he or she is entitled under
s. 175.211; provided that, if such remaining asset value is
lass than the aggregate of the amounts apportioned hereunder,
suc)i latter amounts shall be proportionately reduced so that
the aggregate of such reduced amounts will be equal to such
remaining asseC value.
(c) If there is any asset value after the
apportionments undar paragraphs (a) and (b); apportionment
shall lastly be made in respect of each firefighter in the
service of the municipality or special fire control district
57
IODING:Words st rickerr are dilations; words underlined are additions.
CS/HB 261
1 on such date who is not entitled to art apportionment under
2 paragraphs (a) and (b) in the amounC equal to the
3 firefighter's total contributions to the plan to date of
4 termination; provided that, if such remaining asset value is
5 less than the aggregate of the amounts apportioned hereunder,
6 such latter amounts shall be proportionately raduced so that
7 the aggregate o[ such reduced amounts will be equal to such
e remaining asset value.
9 (d) In the event that there is asset value remaining
10 'after the full apportionment specified in .paragraphs (a), (b),
11 and (c), such excess shall be returned to the municipality or
12 special fire control district, less return to the state of the
13 state's contributions, provided Chat, if the excess is less
14 than the .total contributions made by the municipalfty or
15 special fire control district and the state to date of
16 termination of the plan, such excess shall be divided
17 proportionately to the total contributions made by the
18 municipality or special fire control district and the state.
19 (4) The board of trustees shall distribute, in
20 accordance with the manner of distribution determined under
21 subsection (2), the amounts apportioned under subsection (3).
22
23 If, after a period of 24 months after the date on which the
24 plan terminated or the date on which the board received
25 written notice that the contributions thereunder were being
26 permanently discontinued, the municipality or special fire
27 control district or the board of •trustees of the Cire.fighters'
28 pension trust fund affected has not complied with all the.
29 .provisions in this section, the division shall effect the
30 termination of the fund in accordance with this section.
31
58
CODYNG:Words stri-ckerr are deletions) words underlined are additions.
r
S
r.~ .- ' a
ATTACHMENT B
NOVEMBER 8, 1999 COMMISSION MEETING
ALAN C. J~.~~~
Attorney at Law
935 North Third Street
Post Office Box 50457
Jacksonville Beach, Florida 32240-0457
Telephone (944) 2f16-2500 Facsimile (904) ?A6-9960
November 8, 1999
Mayor and City Commissioners
City of Atlantic Beach
800 Seminole Road
Atlantic Beach, FL 32233
Re: Cross in Howell Park
Dear Mayor and Commissioners:
The City of Atlantic Beach owns and maintains various parks. One of these, Howell
Park, is located in the middle of a residential area. Sometime during the summer of
this year, the City received a letter (Ex. A) from a resident objecting to a wooden cross
(approximately eight to ten feet in height with asix-foot cross-tie) that had been erected
in the park, apparently sometime earlier. The City researched the issue and was unable
to determine who placed the cross in the park or when it was placed there. The City
did determine that the cross was not owned and had not been installed by the City.
On July 2, 1999, I wrote a brief memorandum (Ex. B) to the city manager, who had
passed the resident's letter on to you. In that memorandum, I stated, in part:
I do not believe there is anything to indicate that the cross
has been used to support, aid, maintain or establish any
religion or religious edifice, or that its purpose was to
promote the participation by anyone in the affairs of any
religious organization or sect. If my assumptions are
correct, it would appear that the cross does not amount to
the establishment of a religion in violation of the First
Amendment of the United States Constitution, nor does it
amount to any religious activity controlled, supported or
influenced by the City of Atlantic Beach.
On October 18, 1999, the City received a letter from Annie Laurie Gaylor of the
Freedom From Religion Foundation, Inc. (Ex. C), in which Ms. Gaylor made a formal
request that the cross be removed, stated that "[t]here is no instance of a cross erected
Mayor and City Commissioners
November 8, 1999
Page 2
on public property in this manner ever being permitted to stay on public property in any
resolved legal dispute," and asserted that. "San Diego v. Poulson," 990 F.2d 1518 (9th.
Cir. 19..), cert. denied sub nom. County of San Diego v. Murphy, 512 U.S. 1220
--~ (1994), represents "affirmations" by the Supreme Court of such cases. Ms. Gaylor
also stated in her letter:
The presence of this Christian symbol in your public park
is a violation of the Establishment Clause, and of Art. I,
Sect. 3 of the Florida Constitution. The fact that the city
did not erect this cross does not mitigate the fact that it
has endorsed the presence of the cross by refusing to
remove the illegal symbol when requested. A similar
practice in Alabama state parks where religionists had
erected permanent crosses was nixed there by court
decree. If someone rents the park for a wedding they can
certainly erect a temporary cross, but they must remove it.
It cannot be left there permanently.
I have been requested to provide you with more extensive research on the issues raised
by Ms. Gaylor.
At the outset, I should point out that Ms. Gaylor's contention that the U.S. Supreme
Court's denials of certiorari review in cases in which the placement of religious
symbols on public property has been found to violate the Establishment Clause of the
United States Constitution amount to "affirmations" of those decisions is incorrect. As
you may know, the denial of certiorari review by the Supreme Court does not
constitute an affirmance or even approval of the judgment. House v. Mayo, 324 U.S.
42 (1945) (denial of certiorari by Supreme Court imports no expression of opinion upon
merits of issue appealed). The identical rule applies to the denial of certiorari review
by Florida courts. See, Mystan Marine, Inc. v. Harrington, 339 So.2d 200 (F1a.1976)
Knight, v. Munday Plastering Company, 220 So.2d 357 (F1a.1969); Southern Bell Tel.
& Tel. Co. v. Bell, 116 So.2d 617 (Fla. 1959); Bevan v. Wanicka, 505 So.2d 1116
(Fla. 2d DCA 1987).
I also note that Ms. Gaylor's citation of the case reported at 990 F.2d 1518 (9th Cir.
1993), cert. denied, ... U.S. ... (1994) as San Diego v. Poulson is incorrect. The
correct case name is Ellis v. City of La Mesa. It is also noteworthy that the Ellis court
decided that case, which involved two Latin crosses located in public parks, under the
"No Preference Clause" of California's Constitution. The court specifically stated that
it was "not commenting on whether such memorials [such as one of the crosses which
Mayor and City Commissioners
November 8, 1999
Page 3
was dedicated to veterans of World Wars I and II and the Korean War] violate the
federal Constitution." .990 F.2d at 1528..
=, ;Having noted these specific errors in Ms. Gaylor's letter, I will now turn to a more
general consideration of the overall merits of her contention that the cross must be
removed even if it was not erected by the City. In order to evaluate the merits of Ms.
Gaylor's claim, it is necessary to briefly review the controlling law under both the
federal and Florida constitutions.
The First Amendment to the U.S. Constitution -which applies to the states via the
Fourteenth Amendment- provides that "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; ..." The most
definitive statement by the Supreme Court of the proper test to apply when the
Establishment Clause is invoked to challenge either legislation or governmental practice
is found in Lemon v. Kurtvnan, 403 U.S. 602 (1971), wherein the Supreme Court
stated:
In the absence of precisely stated constitutional.
prohibitions, we must draw lines with reference to the
three main evils against which the Establishment Clause
was intended to afford protection: "sponsorship, financial
support, and active involvement of the sovereign in .
religious activity." Walz v. Tax Commission, 397 U.S.
664, 668, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970).
Every analysis in this area must .begin with
consideration of the cumulative criteria developed by the
Court over many years. Three such tests may be gleaned
from our cases. First, the statute must have a secular
legislative purpose; second, its principal or primary effect
must be one that neither advances nor inhibits religion,
Board of Education v. Allen, 392 U.S. 236, 243, 88 S.Ct.
1923, 1926, 20 L.Ed.2d 1060 (1968); finally, the statute
must not foster "an excessive government entanglement
with religion." Walz, supra, at 674, 90 S.Ct. at 1414.
403 U.S. at 612-613. Where a governmental practice, rather than a statute, is at issue,
the Lemon test is also applied. See, e.g., Lynch v. Donnelly, 465 U.S. 668 (1984)
(Lemon test applied to government-sponsored holiday religious display).
The continued validity of the Lemon factors in dealing with Establishment Clause issues
has been recently confirmed in cases in which overt or perceived government conduct is
Mayor and City Commissioners
November 8, 1999
Page 4
not at issue, see, e.g., Agostini v. Felton, 521 U.S. 203 (1997); Lamb's G'hapel v.
Center Moriches School District, 508 U.S. 384 (1993), despite the urging of several
Justices that an "endorsement" test (which is a refinement of the "effect" prong of the
'.Lemon test) be applied in all Establishment Clause cases, not only in those in which a
government's speech or its grants of financial aid to religious organizations link that
government with religious activity in such a way as to violate the Establishment Clause.
See, Lynch v. Donnelly, 465 U.S. 668 (1984) (Justice O'Connor's concurrence);
Capitol Square Review and Advisory Board v. Pipette, 515 U.S. 753 (1995)
(concurrence by Justices O'Connor, Souter, and Breyer). See also, Adler v. Duval
County School Board, 174 F.3d 1236 (11th Cir. 1999); Easley v. State, _So.2d ,
24 Fla. L. Weekly D1826 (Fla. 4th DCA August 4, 1999); Guyer v. School Board of
Alachua Cotcnty, 634 So.2d 806 (Fla. 1st DCA 1994).
The closest, most instructive, and most recent Supreme Court decision in this area of
law is Capitol Square Review and Advisory Board v. Pipette, 515 U.S. 753 (1995),
wherein the Court considered whether the denial of an application of the Ku Klux Klan
to place an unattended cross on Capitol Square, the Ohio Statehouse Plaza, during the
Christmas season was supported by the Establishment Clause. In affirming the
judgment of the district court requiring the issuance of the requested permit, the Court
reviewed several of its pertinent prior decisions and held:
Petitioners do not claim that their denial of
respondents' application was based upon acontent-neutral
time, place, or manner restriction. To the contrary, they
concede-indeed it is the essence of their case-that the
Board rejected the display precisely because its content
was religious. Petitioners advance a single justification for
closing Capitol Square to respondents' cross: the State's
interest in avoiding official endorsement of Christianity,
as required by the Establishment Clause.
III.
There is no doubt that compliance with the
Establishment Clause is a state interest sufficiently
compelling to justify content-based restrictions on speech.
See Lamb's Chapel, supra, at 394-395; Widmar, supra, at
271. Whether that interest is implicated here, however, is
a different question. And we do not write on a blank slate
in answering it. We have twice previously addressed the
combination of private religious expression, a forum
available for public use, content-based regulation, and a
Mayor and City Commissioners
November 8, 1999
Page 5
State's interest in complying with the Establishment
Clause. Both times, we have struck down the restriction
on religious content. Lamb's Chapel, supra; Wtdmar,
_ > supra.
In Lamb's Chapel, a school district allowed private
groups to use school facilities during off-hours for a
variety of civic, social and recreational purposes,
excluding, however, religious purposes. We held that
even if school property during off-hours was not a public
forum, the school district violated an applicant's free-
speech rights by denying it use of the facilities solely
because of the religious viewpoint of the program it
wished to present. 508 U. S. at 390-395. We rejected the
district's compelling-state-interest Establishment Clause
defense (the same made here) because the school property
was open to a wide variety of uses, the district was not
directly sponsoring the religious group's activity, and
"any benefit to religion or to the Church would have .been
no more than incidental." Id., at 395. The Lamb's Chapel
reasoning applies a fortiori here, where the property at
issue is not a school but afull-fledged public forum.
Lamb's Chapel followed naturally from our
decision in Widmar, in which we examined a public
university's exclusion of student religious groups from
facilities available to other student groups. There also we
addressed official discrimination against groups who
wished to use a "generally open forum" for religious
speech. 454 U. S., at 269. And there also the State
claimed that its compelling interest in complying with the
Establishment Clause justified the content-based
restriction. We rejected the defense because the forum
created by the State was open to a broad spectrum of
groups and would provide only incidental benefit to
religion. Id., at 274. We stated categorically that "an open
forum in a public university does not confer any
imprimatur of state approval on religious sects or
practices." Ibid.
Quite obviously, the factors that we considered
determinative in Lamb's Chapel and Widmar exist here as
well. The State did not sponsor respondents' expression,
the expression was made on government property that had
Mayor and City Commissioners
November 8, 1999
Page 6
been opened to the public for speech, and permission was
requested through the same application process .and on the.
same terms required of other private groups.
IV.
Petitioners argue that one feature of the present
case distinguishes it from Lamb's Chapel and Wtdmar: the
forum's proximity to the seat of government, which, they
contend, may produce the perception that the cross bears
the State's approval. They urge us to apply the so-called
"endorsement test," see, e.g., Allegheny County v.
American Civil Liberties Union, Greater Pittsburgh
Chapter, 492 U. S. 573 (1989); Lynch v. Donnelly, 465
U. S. 668 (1984), and to find that, because an observer
might mistake private expression for officially endorsed
religious expression, the State's content-based restriction
is constitutional.
We must note, to begin with, that it is not really an
"endorsement test" of any sort, much less the
"endorsement test" which appears in our more recent
Establishment Clause jurisprudence, that petitioners urge
upon us. "Endorsement" connotes an expression or
demonstration of approval or support. The New Shorter
Oxford English Dictionary 818 (1993); Webster's New
Dictionary 845 (2d ed. 1950). Our cases have accordingly
equated "endorsement" with "promotion" or "favoritism. "
Allegheny County, stcpra, at 593 (citing cases). We find it
peculiar to say that government "promotes" or "favors" a
religious display by giving it the same access to a public
forum that all other displays enjoy. And as a matter of
Establishment Clause jurisprudence, we have consistently
held that it is no violation for government to enact neutral
policies that happen to benefit religion. See, e.g., Bowen
v. Kendrick, 487 U. S. 589, 608 (1988); Witters v.
Washington Dept. of Services for Blind, 474 U. S. 481,
486-489 (1986); Mueller v. Allen, 463 U. S. 388 (1983);
McGowan v. Maryland, 366 U. S. 420 (1961). Where we
have tested for endorsement of religion, the subject of the
test was either expression by the government itself, Lynch,
supra, or else government action alleged to discriminate
in favor of private religious expression or activity, Board
q i
Mayor and City Commissioners
November 8, 1999
Page 7
of Etl. of Kiryas Joel Village School Dist. v. Grumet, 512
U. S. 687, 708-710 (1994); Allegheny County, supra. The
test petitioners propose, which would attribute to a
r neutrally behaving government private religious
expression, has no antecedent in our jurisprudence, and
would better be called a "transferred endorsement" test.
Petitioners rely heavily on Allegheny County and
Lynch, but each is easily distinguished. In Allegheny
Coacnty we held that the display of aprivately-sponsored
creche on the "Grand Staircase" of the Allegheny County
Courthouse violated the Establishment Clause. That
staircase was not, however, open to all on an equal basis,
so the County was favoring sectarian religious expression.
492 U. S., at 599-600, and n. 50 ("The Grand Staircase
does not appear to be the kind of location in which all
were free to place their displays"). We expressly
distinguished that site from the kind of public forum at
issue here, and made clear that if the staircase were
available to all on the same terms, "the presence of the
cache in that location for over six weeks would then not
serve to associate the government with the creche." Ibid.
(emphasis added). In Lynch we held that a city's display
of a cache did not violate the Establishment Clause
because, in context, the display did not endorse religion.
465 U. S., at 685-687. The opinion does assume, as
petitioners contend, that the government's use of religious
symbols is unconstitutional if it effectively endorses
sectarian religious belief. But the case neither holds nor
even remotely assumes that the government's neutral
treatment of private religious expression can be
unconstitutional.
Petitioners argue that absence of perceived
endorsement was material in Lamb's Chapel and Widmar.
We did state in Lamb's Chapel that there was "no realistic
danger that the community would think that the District
was endorsing religion or any particular creed," 508 U.
S., at 395. But that conclusion was not the result of
empirical investigation; it followed directly, we thought,
from the fact that the forum was open and the religious
activity privately sponsored. See ibid. It is significant that
we referred only to what would be thought by "the
Mayor and City Commissioners
November 8, 1999
Page 8
community"-not by outsiders or individual members of
the community uninformed -about the school's practice.
Surely some of the latter, hearing of religious ceremonies
t on school premises, and not knowing of the premises'
availability and use for all sorts of other private activities,
might leap to the erroneous conclusion of state
endorsement. But, we in effect said, given an open forum
and private sponsorship, erroneous conclusions do not
count. So also in Widmar. Once we determined that the
benefit to religious groups from the public forum was
incidental and shared by other groups, we categorically
rejected the State's Establishment Clause defense. 454 U.
S., at 274.
What distinguishes Allegheny Coccnty and the
dictum in Lynch from Widmar and Lamb's Chapel is the
difference between government speech and private speech.
"[T]here is a crucial difference between .government
speech endorsing religion, which the Establishment Clause
forbids, and private speech endorsing religion, which the
Free Speech and Free Exercise Clauses protect."
Mergens, 496 U. S., at 250 (O'Connor, 7., concurring).
Petitioners assert, in effect, that that distinction disappears
when the private speech is conducted too close to the
symbols of government. But that, of course, must be
merely a subpart of a more general principle: that the
distinction disappears whenever private speech can be
mistaken for government speech. That proposition cannot
be accepted, at least where, as here, the government has
not fostered or encouraged the mistake.
Of course, giving sectarian religious speech
preferential access to a forum close to the seat of
government (or anywhere .else for that matter) would
violate the Establishment Clause (as well as the Free
Speech Clause, since it would involve content
discrimination). And one can conceive of a case in which
a governmental entity manipulates its administration of a
public forum close to the seat of government (or within a
government building) in such a manner that only certain
religious groups take advantage of it, creating an
impression of endorsement that is in fact accurate. But
those situations, which involve governmental favoritism,
7 ~
Mayor and City Commissioners
November 8, 1999
Page 9
do not exist here. Capitol Square is a genuinely public
forum, is known to be a public forum, and has been
widely used as a public forum for many, many years.
_ _ Private religious speech cannot be subject to veto by those
who see favoritism where there is none.
The contrary view, most strongly espoused by
7USTICE STEVENS, post, at 806-$07, but endorsed by
7USTICE SOUTER and 7USTICE O' CONNOR as well, exiles
private religious speech to a realm of less-protected
expression heretofore inhabited only by sexually explicit
displays and commercial speech. Young v. American Mini
Theatres, Inc., 427 U. S. 50, 61, 70-71 (1976); Central
Htcdson Gas & Electric Corp. v. Public Serv. Comm'n of
N. Y., 447 U. S. 557 (1980). It will be a sad day when
this Court casts piety in with pornography, and finds the
First Amendment more hospitable to private expletives,
see Cohen v. California, 403 U. S. 15, 26 (1971), than to
private prayers. This .would be merely bizarre were
religious speech simply as protected by the Constitution as
other forms of private speech; but it is outright perverse
when one considers that private religious expression
receives preferential treatment under the Free Exercise
Clause. It is no answer to say that the Establishment
Clause tempers religious speech. By its terms that Clause
applies only to the words and acts of government. It was
never meant, and has never been read by this Court, to
serve as an impediment to purely private religious speech
connected to the State only through its occurrence in a
public forum.
Since petitioners' "transferred endorsement"
principle cannot possibly be restricted to squares in front
of state capitols, the Establishment Clause regime that it
would usher in is most unappealing. To require (and
permit) access by a religious group in Lamb's Chapel, it
was sufficient that the group's activity was not in fact
government sponsored, that the event was open to the
public, and that the benefit of the facilities was shared by
various organizations. Petitioners' rule would require
school districts adopting similar policies in the future to
guess whether some undetermined critical mass of the
community might nonetheless perceive the district to be
a
Mayor and City Commissioners
November S, 1999
Page 10
advocating a religious viewpoint. Similazly, . estate
universities would be forced to reassess our statement that
"an open forum in a public university does not confer any
~~ imprimatur of state approval on religious sects or
practices." Widmar, 454 U. S., at 274. Whether it does
would henceforth depend upon immediate appearances.
Policy makers would find themselves in a vise between the
Establishment Clause on one side and the Free Speech and
Free Exercise Clauses on the other. Every proposed act of
private, religious expression in a public forum would
force officials to weigh a host of imponderables. How
close to government is too close? What kind of building,
and in what context, symbolizes state authority? If the
State guessed wrong in one direction, it would be guilty of
an Establishment Clause violation; if in the other, it would
be liable for suppressing free exercise or free speech (a
risk not run when the State restrains only its own
expression).
The "transferred endorsement" test would also
disrupt the settled principle that policies providing
incidental benefits to religion do not contravene the
Establishment Clause. That principle is the basis for the
constitutionality of a broad range of laws, not merely
those that implicate free-speech issues, see, e.g., Witters v
Washington Dept. of Servs. For Blind, 474 U.S. 481
(1986); Mcceller v. Allen, 463 U.S. 388 (1983). It has
radical implications for our public policy to suggest that
neutral laws are invalid whenever hypothetical observers
may-even reasonably-confuse an incidental benefit to
religion with state endorsement.
If Ohio is concerned about misperceptions, nothing
prevents it from requiring all private displays in the
Square to be identified as such. That would be a content-
neutral "manner" restriction which is assuredly
constitutional. See Clark v. Community for Creative Non-
Violence, 468 U. S. 288, 293 (1984). But the State may
not, on the claim of misperception of official
endorsement, ban all private religious speech from the
public square, or discriminate against it by requiring
religious speech alone to disclaim public sponsorship.
x~**
.c
Mayor and City Commissioners
November S, 1999
Page 11
Religious expression cannot violate the
Establishment Clause where it (1) is purely private and (2)
occurs in a traditional or designated public forum,
publicly announced and open to all on equal terms. Those
conditions are satisfied here, and therefore the State may
not bar respondents' cross from Capitol Square.
515 U.S. at 761-70 (footnotes omitted and emphasis in original).
As is suggested by the above-cited opinion, several specific factual inquiries are
pertinent to the proper application of the Lemon test to a situation in which the symbol
to be displayed in a public place is not owned by the government and is clearly
sectarian. Those deemed most important by the Capitol Square court include the nature
and use by the public of the forum in which the sectarian symbol was displayed and the
ownership and/or maintenance of that sectarian symbol on governmental property.
Related to these inquiries was a consideration of whether the community would view
the location of the symbol on public property as constituting agovernment-sponsored or
government-endorsed st<~ttement in favor of the religion represented by the symbol.
The application of Capitol Sgtcare to the facts presented suggests that if Howell Park is
open to the public, without discrimination, for all types of activities, whether secular or
sectarian, and if the City is not involved with the maintenance of the cross (e. g. ,
painting or repair) and does not claim ownership or sponsorship thereof, the presence
of the cross is unlikely to be found to violate the Establishment Clause. If, as in
Capital Square, the city's policy allows private individuals generally to exercise
"symbolic speech" in Howell Park or other parks by erecting structures having
significance to religious or other privately-held beliefs, then the fact that this particular
structure suggests belief in the Christian religion would not cause a reasonable observer
to conclude that the government was favoring Christianity over other religions or belief
systems.
On the other hand, if the City generally prohibits the erection of structures on its parks
by private citizens, then its tolerance of this cross might reasonably lead one to
conclude that the government was providing its own sanction or approval (albeit
informal and "unofficial") of Christianity. See, American Jewish Congress v. City of
Beverly Hills, 90 F.3d 379 (9th Cir. 1996) (holding that city violated Establishment
Clause by allowing private group to erect a menorah in a city-owned park, even though
a sign stated that the menorah was not erected, maintained or financed by the city; this
holding was based on the fact that the city's general policy was to prohibit erection of
structures in public parks by private parties; the exception which was made for the
menorah was arbitrary, and not made pursuant to any "neutral" provisions for allowing
~ ' .f
Mayor and City Commissioners
November 8, 1999
Page 12
structures to be built in accordance with well-defined ..standards; court distinguished
Capital Square on ground that the. "public form" in-that case was generally open for
use by private individuals and groups to express their beliefs).
If the City is found to own (perhaps by virtue of the length of time the cross has
remained undisturbed in the park) or to have maintained the cross, a violation of the
Establishment Clause may be found, based upon the perceived endorsement by the City
of the religion behind the symbol. Although I have found no cases directly on point,
i.e., where a religious symbol has been placed on government property by an unknown
party or parties and has remained there for a long period of time, I believe it is wise to
consider how a court is likely to view an Establishment Clause challenge in the event
the City is determined to own and/or maintain this cross.
An illustrative case is Separation of Chtcrch and State Committee v. City of Eugene of
Lane County, 93 F.3d 617 (9th Cir. 1996), wherein the court held that the city's
maintenance in a public park of a fifty-one foot Latin cross, which had been deeded to
the city from private parties as a gift and had been designated as a war memorial,
represented governmental endorsement of Christianity. Since 1970, the cross had been
illuminated by the city for seven days during the Christmas season, five days during the
Thanksgiving season, and on Memorial Day, Independence Day, and Veteran's Day.
Similarly, in American Civil Liberties Union of New Jersey v. Schundler, 104 F.3d
1435 (3d Cir. 1997), the court considered whether the City of jersey City should be
permitted to erect a display containing a creche and a menorah on the lawn in front of
its city hall. This display had been erected and maintained by the city and had been
displayed during the winter holidays for thirty years. The court read the plurality
opinion in Capitol Square as indicating that "at least a majority of the Court would
apply anendorsement-test to determine the constitutionality of agovernment-sponsored
religious display on government property," 104 F.3d at 1444, and proceeded to hold
that the display, which was owned and displayed by the city government on city
government property, violated the Establishment Clause under that test. The court
stated, in part:
Under the endorsement test, a display violates the
Establishment Clause if, in its particular setting, the
display is "sufficiently likely to be perceived by adherents
of the controlling denominations as an endorsement, and
by non-adherents as a disapproval of their individual
religious choices." Allegheny County, 492 U.S. at 597,
109 S.Ct. at 3103. In applying the endorsement test to
,.
Mayor and City Commissioners
November 8, 1999
Page 13
Jersey City's display, we must consider the particular
effects of its display of a creche.
One of the principles that emerges from the
shifting pluralities of Allegheny County is that government
erection of a creche creates an inherent risk of perceived
endorsement. The cache, which depicts the event that lies
at the very core of Christianity, is an unambiguous
religious symbol. Indeed, Justice O'Connor in Allegheny
County recognized that a creche is "the central religious
symbol of the Christmas holiday." Id. at 627, 109 S.Ct. at
3119.
A creche represents the Christian belief that Jesus
was born to the Virgin Mary to lead humankind on a path
toward salvation and redemption. Yet Jersey City would
have us believe that the symbol of the crirche has achieved
such alevel of secular status that it is religiously benign.
We are not so persuaded. The mere fact that a religious
symbol is pervasively displayed during the holiday season
does not diminish its religious significance. A creche
unambiguously represents a belief that is not universally
shared by the citizens of this country. In fact, many
citizens believe that Jesus may only be understood as a
Hebrew prophet. For some devout observers of their
respective faiths, it is heresy to ascribe a divine character
or purpose to Jesus' life or death. Indeed, as Justice
Brennan recognized in his dissent in Lynch, "[F]or
Christians, that path [toward salvation and redemption] is
exclusive, precious, and holy. But for those who do not
share these beliefs, the symbolic reenactment of the birth
of a divine being who has been miraculously incarnated as
a man stands as a dramatic reminder of their differences
with Christian faith." Lyncla, 465 U.S. at 708, 104 S.Ct.
at 1378 (Brennan, J., dissenting).
When government chooses to speak by erecting a
creche on government property, the principles at the core
of the Establishment Clause are clearly implicated. See
Capitol Square, --- U.S. ---, 115 S. Ct. at 2448 ("In
Allegheny County, we held that the display of a privately-
sponsored creche on the 'Grand Staircase' of the
Allegheny County Courthouse violated the Establishment
Clause. That staircase vas not, however, open to all on an
,~
Mayor and City Commissioners
November 8, 1999
Page 14
equal basis, so the County was. favoring sectarian religious
expression. "). By erecting a cri3che itself, on .city
property, a city sends a stronger message of endorsement
of religion than .when it merely provides a forum for
private religious speech. In the former context, the
government is effectively conveying the message that "we
celebrate the holiday season by recognizing the birth of
Christ." As Justice O'Connor noted in Allegheny County,
"[T]he display of religious symbols in public areas of core
government buildings runs a special risk of making
religion relevant, in reality or in public perception, to
status in the political community. "Allegheny County, 492
U.S. at 626, 109 S.Ct. at 3119 (O'Connor, 7.,
concurring). Accordingly, we conclude that Jersey City's
display of a creche on City Hall Plaza -- the.very seat of
Jersey City government -- conveyed a message of
religious endorsement.
Further, we note that the expenditure of public
funds to erect and maintain a religious display directly
implicates the Establishment Clause. Jersey City's display
was erected and maintained with public funds. If a city
taxpayer objected to the religious display, he or she could
not have opted out of contribution to the display, even if
fundamentally repugnant to his or her own beliefs. Of
course, taxpayers often exercise little control over how the
government spends its money on a daily basis, but the
Establishment Clause presents unique constraints on the
expenditure of public funds for religious purposes. Most
importantly, the Establishment Clause requires the
government to remain neutral towards religion in its
expenditure of public funds..
Here, Jersey City expressed a religious preference
by erecting a religious display through the expenditure of
taxpayer dollars. Moreover, by using taxpayer dollars to
fund a display containing religious symbols, Jersey City
has increased the risk that -the display's religious message
will be attributed to the city and its taxpayers. In other
words, Jersey City's use of public funds to erect and
maintain its display increased the "risk of making religion
relevant to status in [Jersey City's] political
Mayor and City Commissioners
November 8, 1999
Page 15
community.." Allegheny County, 492 U.S. at 626, 109
S.Ct. at 3119 (O'Connor, J., concurring).
Jersey City's display of a creche was accompanied
--.= by a menorah, a sign, and a Christmas Tree. Jersey City
maintains that this context alters the message of
endorsement conveyed by the display of the creche. We
disagree. The menorah is a religious symbol. And when
displayed with a creche, the menorah's religious
significance is emphasized. Moreover, the token inclusion
of the Christmas tree does little to mitigate the religious
message of the creche and the menorah. Thus, the display
cannot be viewed as anything but a constitutionally
impermissible dual endorsement of Christianity and
Judaism.
Read together, Lynch, Allegheny County, and
Capitol Sgacare emphasize the importance of perceived
government endorsement of religion in Establishment
Clause analysis. A comparison of Jersey City's display
with the displays involved in Allegheny County and Lynch
reinforces the conclusion that Jersey City's original
display impermissibly endorsed religion. In Allegheny
County, aprivately-owned nativity scene was displayed on
the main staircase of the county courthouse, bounded by a
wooden fence, poinsettias, and a plaque stating "This
Display Donated by the Holy Name Society." Allegheny
County, 492 U.S. at 580, 109 S.Ct. at 3094. Thus, even
with a sign proclaiming private ownership of the display,
the Court held that the display, in its context (on the grand
staircase of the Allegheny County Courthouse),
communicated state endorsement of religion. In Lynch,-the
government-owned and maintained creche was part of a
"winter wonderland" display and was situated in a
privately-owned park not located near any visible seat of
government. Because there were no external indicia of
government sponsorship of the creche, the risk of
perceived endorsement was significantly lessened. And in
Capitol S2uare, the Court upheld the constitutionality of
the display of aprivately-sponsored cross in a public
square because the government was not "sponsoring" the
speech.
_~ r ~ ,t
Mayor and City Commissioners
November 8, 1999
Page 16
In this case, Jersey City not only owned and
maintained .the cache but chose to erect it on City Hall
Plaza-the very seat of Jersey City government.
Moreover, the sign that accompanied the display proudly
proclaimed that the display was sponsored by Jersey City.
Like the cache in Allegheny County, the cache and the
menorah were located prominently at the visible seat of
government power. The City placed the display such that
all visitors to City Hall were confronted with prominent
religious symbols. The Establishment Clause prohibits the
government, when speaking, from expressing favoritism
towards a particular religion. By using the City Hall
Plaza as a forum from which to communicate its
endorsement of Christianity and Judaism, Jersey City
violated the Establishment Clause.
104 F.3d at 1444-46 (footnotes omitted). See also, Freedom from Religion Foundation,
Inc. v. State of Colorado, 872 P.2d 1256 (Colo. Ct. App. 1993) (held: monument
containing Ten Commandments, given to state by private parties and placed in state
park, directly west of capitol building, conveys essential religious message that would
appear to reasonable observer to be endorsed and approved by state because of its
content and location on property of state; state funds were used to clean monument).
As the foregoing cases suggest, there is a reasonable possibility that if a court were to
determine that the City in this case owns or maintains this cross on its property, a
violation of the Establishment Clause may be found, based upon the perceived
endorsement of the Christian religion by the City.
With regard to Ms. Gaylor's contention that the presence of the cross in Howell Park
constitutes a violation of art. I, § 3 of the Florida Constitution, I have found no Florida
case law suggesting such a violation, provided that the City is not found to own or
maintain the cross. This particular provision of the constitution states:
§ 3. Religious freedom
There shall be no law respecting the establishment
of religion or prohibiting or penalizing the free exercise
thereof. Religious freedom shall not justify practices
inconsistent with public morals, peace or safety. No
revenue of the state or any political subdivision or agency
thereof shall ever be taken from the public treasury
directly or indirectly in aid of any church, sect, or
Mayor and City Commissioners
November 8, 1999
Page 17
religious denomination or in aid of any sectarian
institution.
=In considering the application of the foregoing provision, Florida courts follow the
guidance provided by United States Supreme Court in decisions concerning the
Establishment Clause. See, e.g., Silver Rose Entertainment, Inc v. Clay County, 646
So.2d 246, 248 (Fla. 1st DCA 1994), review denied, 658 So.2d 992 (Fla. 1995), cert.
denied, --- U.S. ----, 116 S.Ct. 339, 133 L.Ed.2d 237 (1995) (holding that three Lemon
issues must also be addressed in deciding constitutional question under art. I, § 3).
Although the foregoing constitutional provision contains an additional prohibition of
government authorization of the use of public moneys, "directly or indirectly in aid of
any church, sect, or religious denomination or in aid of any sectarian institution,"
which is not found in the federal Establishment Clause, it is not clear that this additional
prohibition actually provides any greater protection against the establishment of religion
by state and local governments. As the court in Silver Rose Entertainment, Inc., noted:
Government support of religion need not be
monetary to offend article I, section 3 of the Florida
Constitution. No less than its federal counterpart, the
Florida provision "was intended to protect against
sponsorship ...and active involvement of the sovereign
in religious activity." Walz v. Tax Comm'n, 397 U.S.
664, 668, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970).
646 So.2d at 251. Thus, the conduct proscribed in the last clause is arguably implicit
in the first clause of the first sentence of the section. Even so, the clause does
explicitly require scrutiny of any expenditure of governmental funds by the City in the
instant case for the maintenance of the Howell Park cross.
Unfortunately, Florida case law appears to provide no additional guidance as to the
resolution of the City's problem under Florida's "establishment clause," beyond that
already discussed in the preceding portions of this letter.
Although the foregoing discussion is by no means an exhaustive and comprehensive
analysis of all case law pertinent to your inquiry under the Establishment Clause and the
corresponding provision of Florida's constitution (such an undertaking would require
significantly more time than already spent on this assignment), I hope that the cases I
have selected provide you with a sufficient background and understanding of the current
status of the law in this area to enable you to better determine how the City is likely to
fare in the face of Ms. Gaylor's challenge, and whether there is a sufficient risk of
.e ~ ~ ~
- ~
Mayor and City Commissioners
November 8, .1999
Page 18
litigation with. Ms. Gaylor's organization so as to .warrant the removal of .the cross
permanently from the park.
Respectfully submitted,
Alan C. en n
City A ey
ACJ/sky
cc: James R. Hanson, City Manager
Maureen King, City Clerk
. ~ ~ ~ ,t
Carol November
647 Beach Avenue
Atlantic Beach FL 32233
Dear Ms. Shaughnessy,
I am writing this letter to bring to your attention the
existence of a religious symbol on public property. In Howell
Park there is a cross in the middle of the clearing. This
community is made up of people of many religions, including
some who may feel uncomfortable with this religious symbol.
There is a good chance that the existence of this symbol
in a public park is a violation of federal law. I would appreciate
it if you would investigate how it got there and why it remains
standing year after year.
Thank .you for your time.
Sincerely,
Carol November
G~ • ..~ .
~'._s~. Est ~cv'^'a~ ~
EXHIBIT "A"
ALAN C. J£NSEly
A,ttarney at Law
935 North Third Street
Post Of>ice Boz 50457
7acksonv,7ie Beach, Florida 32240-0457
Telephone (904) 246-2500
FAX r~MORANDUM
DATE:
TO:
FROM:
RE:
July 2, 1999
Manager
ty Attorney a
David E. Thompson, City
City of Atlantic Beach
Alan C. 7ensen, Esq., Ci
Cross in Howell Park
Facsim~e {904) 2Ab.-99b0
You provided me with a copy of an undated letter from Carol November to Mayor Shaughnessy.
I understand that Ms. November's questions are how the cross got in Howell Pazk and why it
remains standing year after yeaz. I do not know the answers to these questions and it is my
further understanding that you will make efforts to determine same.
However, I am assuming that the City did not place the cross in Howell Park and therefore no
public funds were used in connection therewith. I do not believe there is anything to indicate
that the cross has been used to support, aid, maintain or establish any religion or religious
edifice, or that its purpose was to promote the participation by anyone in the affairs of any
religious organization or sect. If my assumptions aze correct, it would appear that the cross does
not amount to the establishment of a religion in violation of the First Amendment of the United
States Constitution, nor does it amount to any religious activity controlled, supported or
influenced by the City of Atlantic Beach.
I enclose a copy of Paul vs. Dade County, 202 So.2d 833, for your review.
I have only conducted a preliminary review of Florida law, pending receipt of further informa-
tion regazding the cross and how it got there. I will be more than happy to delve further into
this matter and the federal law question, if and when it becomes necessary. I would appreciate
you advising me accordingly.
Enclosure
ACJ/sky
cc: Maureen King, City Clerk
Mayor and City Commissioners
EXHIBIT "B"
.~, ~
RECpQ~T 1~
FREEDOM FROM REUGlON FOUNDATION 1999
P.O. Box 750 • Madison, WI 53701 • (608) 256-8900
October 15, 1999
Mayor Suzanne Shaughnessy
`' Mayor-Elect John Meserve
800 Seminole Rd
Atlantic Beach FL 32233
Dear Mayor Shaughnessy and Mayor-Elect Meserve:
Our national organization, which works to uphold the constitutional
principle of the separation of church and state, is writing on
behalf of an Atlantic Beach taxpayer and complainant concerned
about the lack of appropriate action by Atlantic Beach regarding
the Howell Park cross.
Specifically, the highly unsatisfactory advice of city attorney
Alan Jensen is contested by our organization and our complainant.
There is no instance of a cross erected on public property in
this manner ever being permitted to stay on public property in
any resolved legal dispute. In the only instances in which crosses
on public land have been acted upon by the U. S . Supreme Court,
that court has without deviation iet stand lower court rulings
ordering removal of crosses from public landscapes. One of
several recent such affirmations by the high court includes San
Diego v Poulson, 990 F2d, 1518, 9th, Cert. denied 63 L.W. 3283
(Oct. 11, 1994) . Similarly the high court has affirmed all lower
court rulings ordering removal of crosses from city or other government
emblems. This is because, as is obvious to any reasonable observer,
the cross stands for Christianity. Its prominent presence on public
land signals illegal government preference and endorsement of one religion
over another, and religion over nonreligion.
The presence of this Christian symbol in your public park is a violation
of the Establishment Clause, and of Art. I, Sect. 3 of the Florida
Constitution. The fact that the city did not erect this cross does not
mitigate the fact that it has endorsed the presence of the cross by refusing
to remove the illegal symbol when requested. A similar practice in
Alabama state parks where religionists had erected permanent crosses
was nixed there by court decree. If someone rents the park for a wedding
they can certainly erect a temporary cross, but they must remove it.
It cannot be left there permanently. Mr. Jensen has not done his homework,
and is leaving the city vulnerable to a legal challenge.
t
This is our formal request that the cross be removed immediately.
May we hear from you immediately about this matter?
Yours very truly
FREEDOM FROM RELIGION FOUNDATION, INC.
Annie Laurie Ga for
Anne Nicol Cibylot; President Dan barker, Pu is elations Director Annie Laurie ayf ,Editor, Freethought T.
.,-. r,n _ . ~ .a ~-- _ ~ .. - __ .,.,,. T r -..., ,... ~.