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HomeMy WebLinkAbout2002-08-21 Minutes, City Commission, SPEC INUTES OF THE SPECIAL MEETING OF THE CITY COMMISSION BOZEMAN, MONTANA August 21, 2002 The Commission of the City of Bozeman met in special session in the Commission Room, Municipal Building, on Wednesday, August 21, 2002, at 7:30 a.m. Present were Mayor Steve Kirchhoff, Commissioner Marcia Youngman, Commissioner Lee Hietala, Commissioner Jarvis Brown, Commissioner Andrew Cetraro, City Manager Clark Johnson, City Attorney Paul Luwe and Clerk of the Commission Robin Sullivan. The meeting was opened with. the Pledge of Allegiance and a moment of silence. Signing of Notice of Special Meetinq Each of the Commissioners, in turn, signed the Notice of Special Meeting. Ordinance No. '1574 - addinq Chapter 8.48 to the Bozeman Municipal Code to prohibit smokinq in enclosed public places and places of employment Included in the Commissioners' packets was a copy of Ordinance No. 1574, as prepared by the City Attorney, entitled: ORDINANCE NO. 1574 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, PROVIDING THAT THE BOZEMAN MUNICIPAL CODE BE AMENDED BY ADDING A NEW CHAPTER TO BE NUMBERED CHAPTER 8.48 PROVIDING FOR THE PROHIBITION OF SMOKING IN ENCLOSED PUBLIC PLACES AND PLACES OF EMPLOYMENT. City Attorney Luwe briefly highlighted the proposed ordinance, characterizing it as similar to Ordinance No. 1573 considered at Monday night's meeting, only with an exemption for bars and casinos. He indicated that the next two agenda items are for adoption of resolutions placing ordinances on the November ballot, and action on the first one will determine whether the second one needs to be considered. The City Attorney drew the Commissioners' attention to the definitions for "bars" and "casinos," as well as the definition for"incidental to consumption of alcoholic beverages." He stated the latter was drafted pursuant to Commission direction, and the Commission may determine that the percentage of revenues from sale of food needs to be increased from the 35 percent currently contained in the ordinance. He indicated that there is some concern in the industry that, locally, the 35-percent figure may be too Iow and could result in places usually viewed as a bar, such as the Haufbrau, being classified as a restaurant by this definition. Mr. Tom Noble, 401 North Church Avenue, stated he does not feel bars and casinos should be exempted, rather the entire ordinance should be placed on the ballot in its original form. He then suggested that one of the Commissioners is a member of a group that has threatened a lawsuit over adoption of the ordinance and should not participate in the discussion or decision due to a conflict of interest. Ms. Kathy Knott, 515 North 21st Avenue, stated she is employed by the Jackpot Casinos and the 19th Hole, where extensive smoke ventilation systems have been installed. In light of these extreme efforts, she noted that there is no smoke smell in those establishments. She indicated that the company has provided a safe environment for those employees who have been pregnant, placing them in positions where 08-21-2002 Special 2- they work in the office, run errands or do other activities which keep them out of the smoke. She encouraged the Commissioners to recognize that bars and casinos regularly use independent businesses in the community and asked that this ordinance be adopted and that bars and casinos be exempted from the smoking prohibition. Ms. Tracy Velazquez, 503 West Olive Street, noted that even if bars and casinos are exempted, several businesses will be affected by this ordinance. She then suggested a slight change in language to ensure that bowling alleys are smoke free, particularly because of the number of children that frequent those establishments. Mr. Brian Close, 406 East Olive Street, stated that scientific studies have proven that ventilation systems do not adequately remove the toxins in second hand smoke. He then encouraged the Commission to not change the percentage of revenue resulting from sale of food if it chooses to retain the exemptions. Ms. Debra Vanpoolen, 602 South Church Avenue, noted she had previously spoken about economic impacts. She now spoke about impacts on herself, noting that as an artist, live music is important to her and, on her limited income, the only venues she can afford are typically bars. She views being subjected to smoke in those bars as a form of abuse and feels the exemption is discriminatory. She then encouraged the Commissioners to either adopt a comprehensive ordinance or let the public decide the issue. Mr. Mike Hope, 322 North 20th Avenue, identified several non-smoking venues with live music, including Montana Ale Works on occasion and the Rocking R and the Robin Lounge on a regular basis. He then suggested the Commission consider a revision to the percentage of food sales to simply state more than half of the sales. Responding to City Attorney Luwe, Mr. Hope indicated that bars will often use food to attract patrons. He then noted that the Haufbrau could be affected by the 35-percent limitation currently in the ordinance; Mr. Don Frye III, manager of the Haufbrau, confirmed that. Ms. Alex Phillips, 9 South Bozeman Avenue, noted the Commission has an opportunity to pass an ordinance that protects the people, and adoption of the ordinance now is better than waiting until November to let the voters decide. She concluded by stressing this is a health issue. Ms. Kim Sorensen, 515 North 15th Avenue, stated support for the proposed ordinance, noting that it is important to adopt the strongest possible ordinance as soon as possible. City Attorney Luwe responded to the suggestion that one of the Commissioners has a conflict of interest, stating he has reviewed the issue and does not feel there is a conflict at this time. Responding to Commissioner Brown, the City Attorney stated that the exemption does cover bowling alleys as written, noting that smoking would not be allowed in those establishments. Responding to Commissioner Cetraro, the City Attorney stated that if the Commission wishes to revise the definition of "incidental to consumption of alcoholic beverages" to state a majority of revenues must be derived from the sale of alcoholic beverages, it could simply delete the definition. Mayor Kirchhoff voiced his interest in retaining an identifiable percentage, so that a determination on compliance can more easily be made in the event of a complaint. He then proposed that the percentage be revised from 35 percent to 40 percent in light of local concerns; Commissioners Youngman, Brown and Hietala all voiced their concurrence. It was moved by CommissionerYoungman, seconded by Commissioner Hietala, that Ordinance No. 1574, adding Chapter 8.48 to the Bozeman Municipal Code to prohibit smoking in enclosed public places and places of employment, except bars and casinos, be provisionally adopted as amended to change Section 8.48.020. F. to read "...no more than ~ 40 percent of the business's annual gross income ..." and that it be brought back in two weeks for final adoption. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Youngman, Commissioner Hietala, Commissioner Brown, Commissioner Cetraro and Mayor Kirchhoff; those voting No, none. 08-21-2002 Special -3- Commission Resolution No. 3539 - placing Ordinance No. 1575, amending Section 8.48.040 of the Bozeman Municipal Code, to prohibit smokinq in bars and casinos, on November ballot Included in the Commissioners' packets was a copy of Commission Resolution No. 3539, as prepared by the City Attorney, entitled: COMMISSION RESOLUTION NO. 3539 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, SUBMITTING TO THE QUALIFIED ELECTORS OF THE CITY OF BOZEMAN, MONTANA, THE QUESTION OF ENACTING ORDINANCE NO. 1575, AMENDING SECTION 8.48.040 OF THE BOZEMAN MUNICIPAL CODE, TO PROHIBIT SMOKING IN BARS AND CASINOS. City Attorney Luwe stated that adoption of this resolution places Ordinance No. 1575 on the ballot. The ordinance, prepared by the City Attorney, is entitled: ORDINANCE NO. 1575 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, PROVIDING THAT SECTION 8.48.040 OF THE BOZEMAN MUNICIPAL CODE BE AMENDED, PROVIDING FOR THE PROHIBITION OF SMOKING IN BARS AND CASINOS. City Attorney Luwe stated that Ordinance No. 1575, removes the exemptions for bars and casinos, and would become effective after approval on the November ballot. He noted that one version of the resolution was included in the Commissioners' packets, and two additional versions were distributed just prior to the meeting. He encouraged the Commissioners to consider the latest version of the resolution rather than the two previous versions. Mayor Kirchhoff stated the ordinance adopted under the previous agenda item contains substantial and significant public health coverage while preserving a certain number of casino and bar operations for those who wish to be in a smoking environment. He noted that, based on the information received, a number of bars and casinos are already smoke free and others are moving in that direction. He stated there is a need to provide a place for everyone within the law, and the ordinance just adopted provides the choice that many in the community have requested. As a result, he feels there is no need to adopt this resolution. Commissioner Cetraro and Commissioner Hietala voiced their concurrence with the Mayor's comments. Commissioner Brown stated he, too, feels that the ordinance protects the public health and that, if smoking is to be allowed, bars and casinos are the most logical places. He indicated that he is comfortable with not placing the issue on the ballot. However, he did voice an interest in the possibility of seeing the County Commission adopt an ordinance similar to that just adopted in the previous agenda item that would pertain to the entire county. Commissioner Youngman stated that she, too, supports the Mayor's proposal. She voiced her appreciation for the quality of the ordinance drafted by City Attorney Luwe, especially on such short notice, noting that it addresses the many concerns that were expressed. It was moved by Commissioner Hietala, seconded by Commissioner Brown, that Commission Resolution No. 3539, placing Ordinance No. 1575, amending Section 8.48.040 of the Bozeman Municipal Code, to prohibit smoking in bars and casinos, on the November ballot, be adopted. The motion failed by the following Aye and No vote: those voting Aye, none; those voting No being Commissioner Hietala, Commissioner Brown, Commissioner Cetraro, Commissioner Youngman and Mayor Kirchhoff. 08-21-2002 Special -4- Commission Resolution No. 3536 - placin.q Ordinance No. 1573, addin.q Chapter 8.48 to the Bozeman Municipal Code to prohibit smokinq in enclosed public places and places of employment, on the November ballot Included in the Commissioners' packets was a copy of Commission Resolution No. 3536, as prepared by the City Attorney, entitled: COMMISSION RESOLUTION NO. 3536 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, SUBMITTING TO THE QUALIFIED ELECTORS OF THE CITY OF BOZEMAN, MONTANA, THE QUESTION OF ENACTING ORDINANCE NO. 1573, ADDING CHAPTER 8.48 TO THE BOZEMAN MUNICIPAL CODE, PROHIBITING SMOKING IN ALL ENCLOSED PUBLIC PLACES AND PLACES OF EMPLOYMENT. This Commission Resolution places Ordinance No. 1573, as prepared by the City Attorney, on the ballot. The Ordinance is entitled: ORDINANCE NO. 1573 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, PROVIDING THAT THE BOZEMAN MUNICIPAL CODE BE AMENDED BY ADDING A NEW CHAPTER TO BE NUMBERED CHAPTER 8.48 PROVIDING FOR THE PROHIBITION OF SMOKING IN ENCLOSED PUBLIC PLACES AND PLACES OF EMPLOYMENT. In light of the actions on the previous two agenda items, this item was deleted from the agenda. Break - 8:08 to 8:12 a.m. Mayor Kirchhoff declared a break from 8:08 a.m. to 8:12 a.m., in accordance with Commission policy. Discussion - FYI Items The following "For Your Information" items were forwarded to the Commission. (1) City Manager Johnson announced that he will be attending the Greater Yellowstone Clean Cities meeting for the remainder of the morning. (2) City Attorney Luwe announced that he will be in Helena for the remainder of the week for an MMIA Board meeting and will also be out of the office next week. As a result of his being out of the office, the Commissioners asked that Ordinance No. 1574 not be brought back until he is present. (3) City Attorney Luwe stated that a recent request in the Saccoccia lawsuit was for information on the big box task force members. An order issued yesterday quashes the deposition of Ashley Brandt, a member of that task force, at least on a temporary basis; and the Judge will be considering a protective order in the near future. He concluded by stressing the importance of protecting task force members, to ensure that they can continue to provide a valuable service to local government. (4) Commissioner Youngman noted that additional names are now available for appointment to the Bozeman Alcohol Policy Advisory Council and asked that this item be placed on next week's agenda. (5) Commissioner Youngman stated that the consultant for the housing needs assessment, Bay Area Economics (BAE), will be in Bozeman on September 23 through 25 and has been scheduled for an hour-long presentation to the Commission on September 23. She noted that a presentation of the water conservation plan is also scheduled for that day, and is projected to take 1% hours. 08-21-2002 Special -5- (6) CommissionerYoungman noted that the resolution which created the Community Affordable Housing Advisory Board is outdated and needs revision to more accurately reflect the purpose of the board. She asked that the Commission also consider changes to the composition of the board, since it is so difficult to fill the attomey position and another community position would be helpful. (7) Commissioner Brown announced that he will be sitting in interviews with engineer applicants for the City's sewer rehabilitation project for the remainder of the day. Adjournment - 8:20 a.m. There being no further business to come before the Commission at this time, it was moved by Commissioner Brown, seconded by Commissioner Cetraro, that the meeting be adjourned. The motion carded by the following Aye and No vote: those voting Aye being Commissioner Brown, Commissioner Cetraro, Commissioner Youngman, Commissioner Hietala and Mayor Kirchhoff; those voting No, none. ATTEST: ROBIN L. SULLIVAN Clerk of the Commission ST-EVEN R. K~'R'~T,~-IOFF, Mayo~ ~/ 08-21-2002 Special