Fernandina Beach advisory boards begin virtual meetings week of May 11, 2020

Submitted by Suanne Z. Thamm

Reporter - News Analyst

May 10, 2020

Fernandina Beach City Commissioners (FBCC) have become increasingly uneasy over the inability of City advisory boards to meet in keeping with CDC guidelines for social distancing and limited gatherings.  Citizens have been unable to move forward with building projects without the ability to have their cases heard before boards such as the Historic District Council and the Board of Adjustment. While the FBCC has now met twice in vitrual meetings, advisory board meetings have been put on hold.  All that will change next week.  The first virtual advisory board meeting will be conducted by the Airport Advisory Board on May 14, 2020 at 6:00 p.m.

At their May 5, 2020 Regular Meeting, City commissioners asked City Attorney Tammi Bach to develop rules of procedure and guidelines to enable advisory boards to resume meeting in virtual setting, as the FBCC has done. It should be noted that virtual meetings will only be held during a declared state of emergency, not as standard operating procedures.

The guidelines below were based on those adopted by other Florida cities for use during the Covid-19 Pandemic, notably the City of St. Augustine and the city of Miami Shores.

Readers are reminded that videos of FBCC and advisory board meetings are available live and recorded on the City of Fernandina Beach website.  

Communications Media Technology (CMT) Quasi-Judicial, Legislative, and Administrative Hearing Procedures for the City of Fernandina Beach

1. Communications Media Technology (CMT) means any alternative forms of audio, video, electronic, or digital communication transmitted or hosted via telecommunications or computer web-based platform services.
2. Implementation of these CMT procedures may only be utilized during the pendency of a declared State of Emergency by the Governor’s office. The Executive Order of the Governor must allow for suspension of any Florida Statute requiring a quorum to be physically present.  CMT procedures must comply with Section 120.54(5)(b)(2), Fla. Stats. 
3. These CMT procedures will be available for meetings of the City Commission, Planning Advisory Board, Board of Adjustment, Historic District Council, Code Enforcement Board and the City’s Retirement Pension Boards, as well as any Advisory Board or Special Committee with business that must be conducted in the opinion of the City Manager.  
4. All applicants have the option of deferring their case to be heard at a future date under established non-emergency hearing procedures. 
5. Any applicant choosing to have their case heard under these CMT procedures must complete the Acknowledgement and Waiver Form provided. This form must be completed by the Applicant’s Agent, if any, AND the property owner.  The form must be sworn to or affirmed, and notarized.
6. Noticing provisions are not suspended. Noticing will be as required by the City Code and Florida Statutes. Noticing will include information on how the public or Applicants may participate by CMT.
7. Agenda packets will be available online.
8. The public meeting room will be open for public attendance consistent with City procedures published on the City’s website and provided with agenda notices. Staff and Board Members may appear in the public meeting room. Attendance will be prioritized as follows:

   1. Board/Commission Members
   2. City Attorney
   3. City Manager/ Staff Presenters
   4. City Clerk/Recording Secretary
   5. Applicant and/or Applicant’s Agent/ Legal Counsel
   6. Witnesses
   7. General Public

9. Board/Commission Members may attend physically or by CMT means reasonably available under the emergency circumstance. 
10. Applicants and/or Applicants’ Agent may attend physically or by CMT. Witnesses and affected parties may appear by CMT or physically on a limited basis consistent with health and safety procedures established by the City. All testimony at quasi-judicial hearings will be sworn under oath, including Applicant’s legal counsel.  Please be advised that members of the public and witnesses may or may not be granted physical access to the inside of City Hall until it is their specific time to speak at the discretion of the meeting moderator present in the Commission Chambers.
11. Presentation materials, documents and evidence must be provided to the City Clerk’s Office, the City Attorney’s Office or to the Board staff secretary no later than three (3) business days prior to the meeting to provide all applicants, staff, board members, attorneys and affected parties to have the same information prior to the start of the meeting or quasi-judicial hearing.
12. Public comment and participation will be conducted with 3-minute limit on all speakers, except affected parties in quasi-judicial hearings are not limited to 3 minutes. Members of the public who wish to participate using CMT will be requested to dial in to the announced phone bank number published on the specific agenda notice for that meeting. The callers will be placed on hold and queued for each agenda item public comment period or applicable public hearing. In the alternative, members of the public may provide written comment to the City Clerk or Board Secretary prior to the hearing via U.S. Mail or email. The City staff present at the meeting or Board Chair will read any received written comments into the record. The City staff present at the meeting or Board Chair will receive and preserve all written comment consistent with Florida Public Records law but will only read into the record the equivalent of three minutes or 400 words.
13. For quasi-judicial hearing: An opportunity for persons to speak on each agenda item or case, virtually or in-person, will be made available after the applicant and staff have made their presentations on each item. All testimony, including public testimony and evidence by affected parties, will be made under oath or affirmation. Additionally, each person who gives testimony may be subject to cross-examination. If you do not wish to be either cross-examined or sworn, your testimony will be given its due weight. Applicants, City staff and affected parties will be permitted to cross-examine witnesses and parties.  However, the public may request the Board Chair or moderator to ask questions of parties or witnesses on their behalf. Persons representing organizations must present evidence of their authority to speak for the organization.
14. For all quasi-judicial hearings except appeals, witness lists, documentary or photographic evidence and exhibits to be presented for the record by applicants and affected parties must be submitted to the City Attorney’s Office three (3) business days in advance of the hearing.  “Affected Parties” are defined as residents of the City.
15. All other rules of decorum apply to the extent they do not conflict or are not applicable. The meeting moderator will monitor adherence to the Commission Rules of Procedure, these CMT Procedures or Robert’s Rules of Order and may mute any persons determined to be in violation. 
16. Applicants and/or Applicants’ Agent/Legal Counsel may rebut public comments through the Chairperson.

Additionally, City Attorney Bach has prepared an Acknowledgment and Waiver of Rights: Fernandina Beach CMT Hearing to be executed by applicants and/or their agents participating in CMT hearings.  This waiver must be signed and notarized before the applicant’s case is heard. That agreement is provided below:

Acknowledgment and Waiver of Rights: Fernandina Beach CMT Hearing

I, the undersigned Applicant or Agent, and Property Owner, hereby acknowledge and agree that:

• Applicant and/or Property Owner has the option of deferring their case to be heard at a future date under established non-emergency procedures. 
• Applicant and/or Property Owner knowingly and willingly chooses to proceed to hearing under the Communications Media Technology (CMT) Quasi-Judicial, Legislative, and Administrative Hearing Procedures for the City of Fernandina Beach.
• CMT procedures are held only during a declared State of Emergency by the Governor. Such procedures may or may not comply with Florida Statutes or case law governing Quasi-Judicial, Legislative, or Administrative Hearings.  CMT procedures must comply with Section 120.54(5)(b)(2), Fla. Stats.
• For quasi-judicial hearing: An opportunity for persons to speak on each agenda item or case will be made available after the applicant and staff have made their presentations on each item. All testimony, including public testimony and evidence by affected parties, will be made under oath or affirmation. Additionally, each person who gives testimony may be subject to cross-examination. If you do not wish to be either cross-examined or sworn, your testimony will be given its due weight. Affected parties will be permitted to cross-examine witnesses and parties.  However, the public may request the Board Chair or moderator to ask questions of parties or witnesses on their behalf. Persons representing organizations must present evidence of their authority to speak for the organization.
• For all quasi-judicial hearings except appeals, witness lists and exhibits to be presented by applicants and affected parties must be submitted to the City Attorney’s Office three (3) business days in advance of the hearing.  “Affected Parties” are defined as residents of the City.
• Decisions and Orders of any board or commission may be subject to challenge by private parties, government agencies, and affected or aggrieved persons. Further, such Orders or Decisions are subject to be overturned by a court of competent jurisdiction. Applicant and/or Property Owner agree to indemnify and hold harmless the City of Fernandina Beach, its boards and commission, staff, and appointed and elected officials, for any and all claims arising out of Applicant and/or Property Owner’s decision to proceed to hearing utilizing CMT procedures. Applicant and/or Property Owner agree to pay all reasonable attorneys’ fees and costs incurred by the City in defending the decision or order of the board or commission utilizing CMT procedures related to your hearing. 
• Applicant and/or Property Owner fully understand the risks and costs of litigation and have independently assessed these risks and costs and choose to proceed with hearing of the application utilizing CMT procedures.

Applicant and/or Property Owner further acknowledges that they have had an opportunity to consult with and be represented by counsel of their choosing and is advised to do so. Applicant and/or Property Owner freely, without duress or coercion, and based on Applicant’s and/or Property Owner’s own judgment wish to proceed with hearing of their application utilizing CMT hearing procedures.