April 20, 2004
The Board of Commissioners of the City of Lawrence met in regular session at 6:35 p.m. in the City Commission Chambers in City Hall with Mayor Rundle presiding and members Dunfield, Hack, Highberger, and Schauner present.
PROCLAMATIONS
With Commission approval Mayor Rundle proclaimed the week of April 18 – 24 as “National Library Week”.
The City Commission received a presentation on the Juneteenth Celebration.
As part of the consent agenda, it was moved by Schauner, seconded by Highberger, to approve the Mental Health Board meeting minutes of January 27, 2004 and February 6, 2004; the Library Board meeting minutes of March 15, 2004; and the Parks and Recreation Advisory Board meeting minutes of March 9, 2004. Motion carried unanimously.
As part of the consent agenda, it was moved by Schauner, seconded by Highberger, to approve claims to 364 vendors in the amount of $1,672,845.10 and payroll from April 4, 2004 to April 17, 2004 in the amount of $1,349,583.22. Motion carried unanimously.
As part of the consent agenda, it was moved by Schauner, seconded by Highberger, to approve the Drinking Establishment Licenses for Chipotle Mexican Grill, LLC, 4000 West 6th Street; Chipotle Mexican Grill, LLC, 911 Massachusetts (C-3 Food Sales Requirement); 75th Street Brewery, LLC, 3512 Clinton Parkway; and Vermont Street BBQ, LLC, 728 Massachusetts (New License). Motion carried unanimously.
As part of the consent agenda, it was moved by Schauner, seconded by Highberger, to concur with the recommendation of the Mayor and reappoint Tammy Davis to the Special Alcohol Fund Advisory Board to an additional term that will expire April 30, 2007; and reappoint Bonnie Lowe and Willie Amison to the Douglas County Community Corrections Advisory Board to additional terms that will expire May 31, 2006. Motion carried unanimously.
As part of the consent agenda, it was moved by Schauner, seconded by Highberger, to authorize the City Manager to approve the Supplemental Agreement No. 3 for engineering services to the existing contract with Black & Veatch Engineering for the Wastewater Treatment Plant expansion project in the amount of $32,400. Funding for this project is provided by the State Revolving Loan Fund. The City will service this debt with sanitary sewer rate revenues. Motion carried unanimously. (1)
As part of the consent agenda, it was moved by Schauner, seconded by Highberger, to set a bid date of May 11, 2004 for 950 Monterey Way sanitary sewer channel crossing improvements. Motion carried unanimously. (2)
As part of the consent agenda, it was moved by Schauner, seconded by Highberger, to set a bid opening date of May 18, 2004 for the Comprehensive Rehabilitation Project for 1033 Rhode Island, 1026 West 29th Court, and 204 North Minnesota. Motion carried unanimously. (3)
As part of the consent agenda, it was moved by Schauner, seconded by Highberger, to award Project No. 1-SR1-104(S), 6th Street, Frontier Road to Arkansas Street, (KLINK) milling, overlay, and pavement marking to LRM Industries in the amount of $462,297.90. Motion carried unanimously. (4)
As part of the consent agenda, it was moved by Schauner, seconded by Highberger, to authorize the Mayor and City Clerk to execute a Supplemental Agreement with the Kansas Department of Transportation for the inspection services in the amount of $23,007.45 for the improvements to North Michigan, Riverridge Road to West 2nd Street. Inspection was required on an additional 55 days that were not included in the original contract. Motion carried unanimously. (5)
As part of the consent agenda, it was moved by Schauner, seconded by Highberger, to set a bid date of May 4, 2004 for Project No. 12-SR2-404(C) 2004 Overlay Program Phase 1. Motion carried unanimously. (6)
As part of the consent agenda, it was moved by Schauner, seconded by Highberger, to place on first reading, Ordinance No. 7762, annexing [A-12-15-03] 50.6397 acres of land located north of Clinton Parkway and east of K-10 Highway (SLT). Motion carried unanimously. (7) (7)
As part of the consent agenda, it was moved by Schauner, seconded by Highberger, to place on first reading, Ordinance No. 7763, rezoning [Z-12-49-03] 18.9332 acres from B-3 (Limited Business) District to RM-2 (Multiple-Family Residential) District, property located north of Clinton Parkway and east of K-10 Highway. Motion carried unanimously. (8)
As part of the consent agenda, it was moved by Schauner, seconded by Highberger, to place on first reading, Ordinance No. 7765, levying maximum assessments to pay a portion of the costs for construction of the intersection of Kasold Drive and Peterson Road including property acquisition, traffic calming/control devices, bicycle facilities, subgrade stabilization, stormwater improvements, and other necessary and appropriate improvements, as authorized by Resolution No. 6520. Motion carried unanimously. (9)
As part of the consent agenda, it was moved by Schauner, seconded by Highberger, to place on first reading, Ordinance No. 7766, levying maximum assessments to pay a portion of the costs for construction of Peterson Road from Kasold Drive to approximately 900 feet west of Monterey Way, including property acquisition, traffic calming devices, bicycle facilities, subgrade stabilization, stormwater improvements, water main, and other necessary and appropriate improvements, as authorized by Resolution No. 6519. Motion carried unanimously. (10)
As part of the consent agenda, it was moved by Schauner, seconded by Highberger, to place on first reading, Ordinance No. 7767, levying maximum assessments to pay a portion of the costs for the construction of Monterey Way from the intersection of Peterson Road north to Grand Vista Drive, including property acquisition, traffic calming devices, bicycle facilities, subgrade stabilization, stormwater improvements, water main and other necessary and appropriate improvements, as authorized by Resolution No. 6518. Motion carried unanimously. (11)
Ordinance No. 7772, rezoning (Z-11-38-03) a tract of land approximately 12.3 acres from PCD-2 (Planned Commercial Development District) to M-1 (Research Industrial District), was read a second time. The property is generally described as being located on the northwest corner of Legends and Research Park Drive (extended). As part of the consent agenda, it was moved by Schauner, seconded by Highberger, to adopt the ordinance. Aye: Dunfield, Hack, Highberger, Rundle, and Schauner. Nay: None. Motion carried unanimously. (12)
Ordinance No. 7744, levying maximum assessments on lots, pieces, and parcels of land in the City of Lawrence, Kansas to pay for the improvement of Monterey Way (Peterson Road to Stetson Drive), including construction of bike lanes, traffic calming devices, certain drainage and stormwater improvements, and the acquisition of property interests as authorized by Resolution No. 6502, was read a second time. As part of the consent agenda, it was moved by Schauner, seconded by Highberger, to adopt the ordinance. Aye: Dunfield, Hack, Highberger, Rundle, and Schauner. Nay: None. Motion carried unanimously. (13)
As part of the consent agenda, it was moved by Schauner, seconded by Highberger, to authorize the Mayor to sign a Subordination Agreement with Marilyn Figuieras, 2044 Emerald Drive. Motion carried unanimously. (14)
As part of the consent agenda, it was moved by Schauner, seconded by Highberger, to authorize the Mayor to sign a Subordination Agreement with Jonathan Willems, 2517 Cimarron Drive. Motion carried unanimously. (15)
As part of the consent agenda, it was moved by Schauner, seconded by Highberger, to approve as signs of community interest a request from the Lawrence Region Antique Automobile Club of America to place directional and notification signs in various rights-of-way during the Lawrence Swap meet from Friday, April 30 through Sunday, May 2, 2004. Motion carried unanimously. (16)
As part of the consent agenda, it was moved by Schauner, seconded by Highberger, to approve a Temporary Use Permit Upon Review (TUPR-04-09-04) for Big Blue weekends at Old Chicago, 2329 South Iowa subject to the following conditions:
1. Signs displayed in conjunction with this use shall comply with City sign regulations and shall not be located on public right-of-way. Signs for this activity can only be displayed during hours of operation;
2. Obtain temporary sign permit from Neighborhood Resources Office;
3. Obtain a Transient Merchant’s License from the City Clerk’s Office; and
4. Boat display to be confined to the area along the north side of the building [approximately 130’ x 25’ access aisle and nine parking spaces] as outlined on the attached plan.
Motion carried unanimously. (17)
Major Rich Barr, Fire/Medical Department, provided an update on the blasting issue in the Stonecreek neighborhood that was reported to the Commission during their April 13th meeting. He said the neighbors had requested a meeting with City officials as well as representatives of the contractors and the developer to address the neighborhood’s concerns over those blasting issues. He said the neighbors’ questions ranged from how close the blasting was going to occur to the home as well as why mechanical means of breaking out the rock was not an option. He said there were also concerns expressed in regard to Southern Star Central’s gas pipeline that ran adjacent to the back of the Stonecreek neighborhood and also to one of the sanitary sewer lines.
As a result of those concerns, Southern Star had performed a blasting analysis to determine if there were any concerns about the blasting vibrations that might occur. He said when he talked to the supervisor at Southern Star that supervisor indicated that when running the first blast survey that the threshold of vibrations was far enough below their limit that he doubled the charges to see if he could boost the vibrations up and those vibrations still remain well under their company’s threshold limit. Therefore, the supervisor indicated on his report that it would be approved for their company to blast within 100 feet of that pipeline. He said by the scaled drawings that he provided to the City Commission, it appeared that the closest that blasting would occur to that pipeline was approximately 150 feet.
He said the permit would expire this Friday and before a new permit could be renewed all pre-blast surveys needed to be approved before any blasting could occur within 500 feet of those homes.
He said there were concerns about notification of the utilities and as a result, he contacted the Kansas One Call Dig Safe which was a phone line that contractors called in order to determine if there were underground utilities that contractors needed to be aware of before those contractors excavated the site. The Kansas One Call Dig Safe notified all of the utilities in the area to perform a utility locate.
Barr reiterated that the permit was going to expire on Friday and without further direction, he anticipated renewing that permit.
Mayor Rundle said he assumed that there was no problem in applying all of those pre-blast surveys to the new permit and the groundwork would be completed. He asked if there would be extra hoops to go through because it was a renewal of the permit.
Barr said there would not be any extra hoops to go through and staff would ensure that the contractor was following City Code. Those pre-blast surveys were done for the part of the project that was not completed and those surveys would come under that renewed permit because there had been no blasting within 500 feet of those structures yet.
Commissioner Schauner asked if the contractor would maintain a record of seismograph readings as part of City ordinance.
Barr said by City ordinance the contractor was required to maintain those records for three years. He said The Bureau of Alcohol, Tobacco, and Firearms required those records to be maintained in perpetuity since the incident of September 11th.
Price Banks, Attorney, speaking on behalf of the Stonecreek neighborhood, said the primary issues of concerns were the proximity of the pipeline to the blasting area and the 50 year old, 16 inch gas pipeline, lying closer to the blasting area than the residential homes.
He stated a constructive criticism of the City code throughout most cities, which was the adoption of National Codes. He said the adoption of those types of codes prevented the general public from accessing those codes that were adopted by reference.
He had concerns with the City Code in regards to the expiration of permits, blasting plans, notification of the pre-blast survey, claims procedures, the party performing the pre-blast survey being a disinterested party, whether the pipeline was considered a structure, and blast records.
He requested that no permit be issued until there was an opportunity to meet with the developer. He said he would be drafting a proposed letter of agreement to see if some agreement could be reached, regarding how close the blasting was going to occur to single-family residents.
Mayor Rundle asked if there was a certain timeline before the contractor could perform blasting if the permit was renewed.
Barr said if the permit was renewed as it was now, the contractor could continue on with their operation, unless there was something holding the contractor up such as confirmation of all pre-blast surveys being completed.
He said concerning the pipeline, the City Code stated that no blasting would occur within a 100 feet of any structure, but he did not define the pipeline as a structure. However, if the pipeline were defined as a structure, blasting would not occur within 100 feet of the pipeline by that scaled drawing which showed blasting would not occur within approximately 150 feet of that pipeline.
He said the issue of performing a pre-blast survey on a pipeline he was not sure how that was done aside from excavating the area and looking at that area of pipe. He said that was why staff relied on Southern Star’s analysis of their own pipeline to determine how close that blasting was safe to be done.
He said staff had the blast plan on record. He said information was provided to the neighbors early on, but it did not include the map that was presented to the City Commission last week or the list of pre-blast surveyed buildings. He said before the neighborhood meeting last week, he informed the neighbors that those records were subject to review.
He said concerning the blasting records, City ordinance indicated that blasting records were available for staff to view, but he did not have copies of those records nor was the contractor required to give staff copies of those records.
Mayor Rundle said most codes provided interpretation. He suggested that Barr and Price draft a question about that definition to see if they could receive an interpretation.
Barr said the one issue was that any blasting that had occurred thus far, that pipeline was not offered a pre-blast survey, if the pipeline was defined as a structure. Any blasting that occurred henceforth, based upon the plan, would indicate the blasting was not going to be within less than 150 feet of that pipeline and therefore, the City Code would allow it to occur.
Commissioner Schauner asked what other information and questions came up at that neighborhood meeting.
Barr said there was confusion about when the 100 foot and 500 foot rule would come into play and the thought that blasting was not allowed within 500 feet, but it was.
Commission Schauner asked if it would be possible for staff to post a weather protected copy of the blast plan at that location and other pertinent material.
Barr said staff could provide that map and work with the neighbors to determine where to post it.
Mayor Rundle said it was alleged that Olathe and Shawnee defined a pipeline as a structure. He said he assumed they would have some type of provisions if they did define a pipeline as a structure. He suggested any background information would be helpful.
Barr said he had a copy of Shawnee’s ordinance. The ordinance stated “structures” including pipelines and utilities. He said that statement indicated while it would be difficult to perform a pre-blast survey, that they must be considered in the blasting operation.
Mayor Rundle said he thought also that the pipeline company would have feedback on how things would be assessed.
Barr said his contention was if the pipeline company had done a blast analysis and was comfortable with the blasting operation to occur at twice the amount of explosives at 100 feet in distance, then he was not sure he had the expertise to tell that company that it was not okay to blast.
Commissioner Schauner said Banks made reference to a number of concerns that were not complied with. He asked if there was a check sheet that whoever approved the blasting application went through to make sure all of the pieces of the City’s ordinance had complied with so if there was a dispute about whether something had been done, there would be an easy way to reference compliance.
Barr said he made reference to one of those residents that the benefit of having that exchange was going to be creation of a checklist.
Mayor Rundle asked Banks if there were any ideas that he wanted the City Commission to follow through on.
Banks said a letter of agreement was being drafted and he suggested that the permits be held off (permits that were closer than 500 feet of a resident) for another week so the neighborhood had an opportunity to work with the developer.
Dunfield suggested that this blasting issue be placed on next week’s regular agenda.
Vice Mayor Highberger suggested that Barr exercise his professional judgment and make a decision on whether to reissue the permit on Friday if all the code requirements have been met.
Also during the City Manager’s Report, Victor Torres, Neighborhood Resources Director, provided a briefing on proposed amendments to Chapter IX, the “Health and Sanitation” section of the City Code. A public meeting would be held May 10, 2004, in the City Commission Chambers, at City Hall, at 7:00 p.m., to discuss those proposed amendments with interested parties (Lawrence Preservation Alliance, Landlords of Lawrence, Inc., Lawrence Homebuilders Association, etc.). It was anticipated that a final draft would return to the City Commission on an agenda later this spring.
He said some of those proposed amendment to the environmental code related to notifying property owners; removal of trash receptacles; term definitions; measuring the condition of a property under investigation; indoor furniture placed on porches; dead and dying trees; reduction of time to repair a violation; increased fines; and the removal of motor vehicles.
Commissioner Schauner said concerning the discussion about the garage that was a demolition by neglect issue, he asked if those changes would assist the Neighborhood Resources Department in handling that type of issue.
Torres said the amendment would help a little. That issue was a separate type of issue and staff would need some additional enforcement standards as well as additional funding in the budget to address those issues.
Commissioner Schauner asked if there were any other changes necessary on the enforcement side in terms of coordination with Municipal Court or City Prosecutors to make this enforcement a more timely process.
Corliss said timeliness was a difficult issue in regards to adjudication in Municipal Court. He said it could take weeks or months for some of those items to get to the point of a trial because of the procedural requirements that were placed before the law and the volume of work that the court had. He said he did not know how to expedite that issue without a more thorough review of the entire court system to see if there were opportunities to reduce that timeframe.
He said the standards issue in regards to demolition by neglect, all new homes, staff hoped were built well, and then over time those homes begin to deteriorate. He said most property owners respond to that deterioration appropriately, but some of those property owners did not. He said one of the problems was that staff would find out late in the deterioration to where the costs of repairs were arguably great. He said what staff wanted to do was to get at some of those blight issues earlier.
He said some of those proposed amendments would be helpful, but others were the complaint driven nature of Neighborhood Resources to respond to complaints and work with property owners. He said there was a conciliation process before a prosecution process, but that could take a lot of time.
Mayor Rundle said he had trouble in figuring out the problems that those amendments were meant to address. He suggested having further discussions to draw connections between the specific changes and problems that staff was trying to relate those amendment to. He said the fact that staff was planning on some public meetings staff could use those meetings as a broader forum for identifying those specific problems. He said perhaps problems could be more broadly identified in the neighborhood and then come back to discuss tools to address those problems.
He asked if he could address those issues with a Municipal Judge and a Prosecutor.
Corliss said the City’s Supervising City Prosecutor was involved in the review of those amendments. He thought it would be good to hear the prosecutor’s comments and receive community input because of the issue of what standard needed to be enforced.
One of the key issues that staff was recommending to be removed was in Chapter 9-605, the section on enforcement standards, would be to strike the language measuring the condition of the property under investigation against the quality and appearance of properties in the neighborhood. One of the frequent responses from someone who was sited with an environmental blight problem was they were able to point somewhere else in the neighborhood where there might be a similar situation with the same level blight. He said by striking that language, would not allow that discussion and would simply state that person had violated the code and staff would prosecute accordingly. He said that might be a controversial issue in the neighborhoods. (18)
REGULAR AGENDA
Receive letter and staff report concerning bike lanes on Harvard Road in Fox Chase South Addition.
David Corliss, Assistant City Manager/Legal Services Director, presented the staff report. He said last year the Commission adopted a change in the City’s policies concerning bike lanes and the responsibility for the installation of bike lanes. He said what the staff memo indicated was that there was a project, the Fox Chase South Subdivision that was already in the pipeline when this change was adopted. Fox Chase already had a preliminary plat approval and the final plat was approved that same month. He said Fox Chase had a letter from their attorney indicating that they believed that it was inappropriate for them to have to pay for bike lanes and there were some equities about the fact that the standards did change as their project was coming on line.
He said the City Commission had received a copy of the bikeway map plan and the map, indicating that a bike lane would be placed on the collector street between 6th and 15th Streets but that the map did not show that the collector street in the currently platted area location of Harvard Road. He said Harvard Road went south of that bike lane and the bike lane (both shown on the map) went north of the ring park area that the City had purchased. He said this item was placed on the City Commission’s agenda for direction. He said there were discussions about bike lanes on Harvard Road when it was preliminarily platted last October. Staff specifically looked at that area primarily in relationship to costs and staff knew the City Commission was interest in bicycle transportation. The City had a benefit district where bike lanes were being placed on Harvard Road for a small stretch immediately east of George Williams Way as part of the development on George Williams Way development. The proposed installation of Harvard Road was not a benefit district, but was instead a developer/financed installation of a road.
Commissioner Schauner asked if the final approval of the plat was given with or without a condition for bike lanes on that street.
Corliss said there was no condition for bike lanes on the final plat. He also said that was not a usual condition item that staff would place on a plat. When the preliminary plat for that property was approved in 2003, that preliminary plat showed collector street/right-of-way, but the issue was not the amount of right-of-way, in that it also showed a 31 foot back to back street and it did not show bike lanes. He said in a memo staff set out the chronology of development and plan and plat approvals. He said a week before the bike policy was approved by the Commission, Fox Chase South plat was approved by the City Commission. He said in the recorded minutes, it was indicated that one of the issues would be when new collector streets were developed, would there be a requirement for bike lanes.
Commissioner Schauner asked how the developer would have known that this street was sufficient to accommodate bike lanes at the time the developer submitted either their preliminary plat or their final plat.
Corliss said staff would direct property owners and directors to the City’s existing polices in City Code standards as to what were the requirements for those installations.
Commissioner Schauner asked if staff told the developer that bike lanes were required as that piece of infrastructure was being built as a condition of building that infrastructure.
Corliss said the developers indicated that they found out that bike lanes were required when they submitted street plans this year. Street plans were submitted to the City Engineers office in February of this year.
Mark Anderson, attorney for the developer, read prepared remarks. He said the preliminary plat for Fox Chase South was approved with a 31 foot back to back street configuration for Harvard Road last summer. The final plat for Fox Chase South was approved by the City Commission on October 7, 2003, without revision or conditions for bike paths.
He said Resolution No. 6517, known as the bike path ordinance was subsequently adopted by the City Commission the following week on October 14, 2003. The minutes from the City Commission’s discussion on the bike path ordinance, that night, included comments from the Planning Director to the effect that some collector streets would not be required to have bike lanes. There was discussion of what it would cost if there were bike paths on Harvard Road, but it was in the context of “what if” scenarios and cost estimating, trying to get a grasp of what the ordinance might impose on builders in terms of financial terms, but he felt the Planning Director’s comments were clear that some collector streets would not have bike paths.
Four months later on February 27, 2004, the owner submitted street plans for Fox Chase South Subdivision. The street plans, as submitted, complied with the bike path ordinance as approved and adopted by the City Commission. Following a month long review by City staff, City staff insisted that bike paths be constructed along Harvard Road and their assistance was based apparently upon comments that appear in the minutes and not comments that appear in the ordinance. The ordinance itself did not show or require a bike path along Harvard Road through Fox Chas South.
The owners incurred considerable time and expense to this date to design and engineer Harvard Road in accordance with the preliminary and final plats and in conformance with the bike plan ordinance. The owners had a reasonable expectation that the City would “follow” its own bike path ordinance. The owners acted in reliance on the bike path ordinance and the reliance was reasonable. If the owners were required to re-engineer the street plans for Harvard Road to include bike paths, it would probably take at least four weeks to reengineer street plans and another month for the City staff to review those plans. Furthermore, there were two traffic circles designed in that subdivision and were included along that stretch of Harvard Road. Those traffic signals would not accommodate bike paths. When bike paths came into a traffic circle those bike paths need to be routed out of the street onto adjacent recreational trails to get around the traffic circles. What happened was those traffic circles would likely expand into full-blown roundabouts, those traffic circles would require additional right-of-way at both of those intersections and because the plat was already final, the additional right-of-way would require separate dedication by the owners which in turn would effect several platted lots.
The “whereas” provisions of the bike paths ordinance suggested that bike lanes carry cyclists to various area of the community and were designed with the commuter cyclist in mind for cross urban travel. That idea was from the City’s ordinance. Those bike lanes should be spaced approximately one mile apart. Again, there was a reference to one mile in the “whereas” provisions of the ordinance.
There were bike lanes and recreational trails or there soon would be one mile apart along 6th Street to the north and 15th Street to the south. The widening of 6th Street which should commence later this summer included the construction of a recreational trail.
He said bike paths along collector streets were not designed nor intended for use by grade school aged children. With posted speed limits along some collector streets as high as 45 mph and actual average speeds even higher, most responsible parents would probably encourage young children to avoid the use of bike paths along collector streets altogether. The City had the opportunity to design its own recreational trails and bike paths around the entire perimeter without the necessity of routing young children onto a collector street.
He said between Folks Road on the north and 15th Street on the south, there were no less than four existing or planned bike paths and recreational trails that dissected east to west. Those bike paths were within a one mile area between Wakarusa and George Williams Way, no less than three north/south routes planned or existed. That was more bike paths or recreational trails than any other part of Lawrence.
He said bike paths that did not comply with the bike path ordinance should not be a discretionary function of staff nor should it be left to the minutes of a meeting. He said they respectfully request that the City Commission direct City staff to adhere to the ordinance as adopted in October 2003.
Commissioner Schauner asked if the width of the street would be wider with bike paths than 31 feet back to back.
Anderson said yes. He said with bike paths the road had to go from 31 foot to 36 feet. All the grading, asphalt, piping, drainage and street inlets would need to be completely reengineered which would take at least four weeks and a considerable sum of professional fees to reengineer.
Mayor Rundle called for public comment.
Eric, Struckhoff, Chair, Bicycle Advisory Committee (BAC), said as the Commission considered the inclusion of bike lanes on that stretch of Harvard Road between Stoneridge and George Williams Way, he asked the Commission to consider their intent in the ordinance passed last year to provide safe, convenient, and efficient transportation for all road users.
It was a consensus of the Bicycle Advisory Committee that the new development of Harvard Road certainly fell within that intent and the BAC recommended bike lanes and bike facilities in that sector of Lawrence unanimously.
He said with respect to the previous comments, there were alternatives to Harvard Road in particular, however, in the spirit of the ordinance passed last October, we should remind ourselves that if looking at the map that was available on the on-line agenda today, it was a 1999 map that showed Harvard Street as a collector with a future bike lane as far back as 1999. He said it should be no surprise that this would fall under the purview of an ordinance passed in October which formalized the intent of the City to establish bike lanes on that corridor.
He said Harvard was the only connector street between 23rd and 6th Streets and 15th Street had no facility and was a planned bike route in the future, however, in conversations at the BAC meeting with Terese Gorman, City Engineer, there was no timeline for that facility and there was no right-of-way on the north side of the street, out west as far as Kasold nor right-of-way to the south of the street west of Kasold.
He said certainly bike facilities must be included in new development going forward per City ordinance. The rationale laid in the difficulty in trying to retrofit bicycle facilities especially the northwest part of the City in places like 15th and 9th Streets. He said with no routes on the 15th Street corridor yet there would be a difficult retrofit at that location and to the east of 15th and Iowa there were serious based constraints in trying to establish connectivity between downtown and that part of western Lawrence. He said those difficulties help illustrate the importance of avoiding those oversights in the future. The ordinance that the Commission passed last October went along way to address that issue and it would be an effective way to make sure those facilities were provided in the future.
He said furthermore it was well documented that on-street facilities when established with new development or reconstruction of City streets was far less expensive than any standalone bicycle facility itself. He said the BAC wanted the City to take the opportunity to establish new facilities in the most cost effective manner and that was with new construction. It was much cheaper to roll a bike lane into a street project than it was to build a recreational path on its own somewhere else.
He said by holding City ordinance requiring bike lanes on designated collector street, the City Commission would help ensure safe, convenient, and efficient bicycle facilities development in the most economic and timely manner possible. The BAC unanimously recommended establishment of bike lanes on west Harvard Road.
Vice Mayor Highberger asked why that stretch of Harvard Road was not included on the 1999 map.
Struckhoff said he did not know whether the section of Harvard Road was platted as a street back then. However west Harvard, although this was a slight adjustment of the alignment from the original plan, he believed west Harvard was designated as a future bike lane route.
Vice Mayor Highberger was trying to clarify that there was a planned connection which went through part of the ring park. He said there was one connection on the 1999 map that looked like it was trying to connect from Harvard over to George Williams Way.
Finger said that was a correct interpretation. She said there was one proposed collector that was midway or somewhere between 6th and 15th Street that would connect Wakarusa to George Williams Way. She said the map identified erroneously, the entire area that was encompassed by the Ring Park was also parkland. It showed a road connection north of what was assumed as park and that when this mapping error was identified later, it was modified.
Alan Cowles, President, West Lawrence Neighborhood Association, pointed out that Fox Chase South was a new neighborhood and as with the other neighborhoods there would be a relatively young population with hundreds of grade school children in that area. In addition, not shown on the map down on the southwest corner, was a grade school and children would be going to and from the grade school for years to come. At the moment there was no plan for that ring around that neighborhood and there were no access points into certain areas and that was not an immediate substitute for a bike path down Harvard Road. He said the matter was complicated with the hundreds of grade school children in getting to school and back to their homes and that issue deserved further study. He said the association hoped that the City Commission supported the bike paths.
Michael Almond, Lawrence, said in the mid to late 90’s, he was active as one of the citizen advocates for adopting the bicycle lane plans that the City adopted at that time, working with the BAC and a number of bicycle groups around this City. He said they were gratified that the City hired a consultant to perform in depth studies to look at two major issues which one issue was, how to retro-fit bicycle lanes in the older parts of Lawrence and certain targeted areas and streets. The second major issue was how to come up with a policy and a direction for including bicycle lanes in all new development. He emphasized as a matter of terminology that for years, the terms “bicycle path” and “bicycle lane” were thrown around as being equal and the same, but that was not true. Bicycle path was a separate facility and was more expensive to build than a bicycle lane which was part of a street itself within the confines of the curbs.
The whole idea of the planning and the adoption of the plan in the 90’s was to point out that Lawrence had many, relatively speaking, bicycle trails and bicycle paths mostly for recreational use and very underused relative to the number of miles of bicycle paths whereas Lawrence did not have any bicycle lanes which were for practical use for people to get to places whether than weekend fun and recreation. He said the whole point was to come up with a plan for lanes.
He said when that plan was adopted there were 11 streets targeted for retrofitted bicycle lanes, some of which had actually been implemented, and the second major part was both of those resolutions adopted by the City Commission that all collector streets, in the future, would have bicycle lanes. He said the intent all along in the planning process, the adoption of the plan, and the adoption of those resolutions was for bicycle lanes on all collector streets.
He also pointed out in his neighborhood, 19th and 15th Street were 31 and 32 foot back to back width. The way that lanes were retro-fitted in the policy that was adopted was that anytime the City did an overlay, that was the time to efficiently and cost effectively include those bicycle lanes. He said in effect part of the intent of having bicycle lanes on some of those streets was to act as a traffic calming device which was effective in that area. He did not see how there could not be a way that Harvard Road to have bicycle lanes as a collector, but practically that the engineering could be done to provide a service to slow down that traffic as well as provide a practicable way for people to get from a destination from their homes to where they were going rather than a perimeter trail that did not take them anywhere because it was a recreational device and did not serve any practicable function. He hoped the City Commission would consider this issue in the context of the history of that matter.
Phil Struble, Landplan Engineering, said he designed the West Lawrence Master Plan in 1991 or 1992 that showed where Harvard Road was going to be located. He said if there was any thought that the bike route on Harvard Road that was shown on that map was completely erroneous. He said he could show 1992 maps that show Landplan’s intent and where it went and it was clearly not on that map.
He said secondly, they relied on Resolution 6517 and contrary to what was heard, that resolution stated, “bike lanes should be provided on all collector streets designated for bicycle lanes on the bicycle facility map and the bicycle facility plan.” He said as a designer, he had to rely on that information and his company had spent a considerable amount of money, time, and energy designing that street accordingly.
He said he was not opposed to bike lanes, but what he was curious about, in which he thought was part of the bicycle plan, was that a 36 foot wide street encouraged traffic to travel 25 to 35 percent faster than a narrower street. Furthermore, there was no parking on Harvard Road and there were no opportunities to slow traffic down.
Bicycle lanes were not, should not, and had never been considered for elementary aged children to ride to school. He said this was not a function of Langston Hughes Elementary. If looking at the map there was a bicycle network in that area and there was nothing that set off any alarms that his company was going down the wrong route. He took offense when someone said that they were ignorant that Harvard Road was going to have a bike lane. He said he had the documentation and he participated for fourteen years in that conversation. He asked the City Commission to allow him to proceed with that project.
Commissioner Dunfield said concerning the map and the dotted red line around the north side of ring area and asked if that did not represent Harvard Road.
Struble said correct.
Commissioner Dunfield asked Struble what that line represented.
Struble said if looking at those alignments, those alignments matched what they had designed for years. He presented a map to the City Commission.
Commissioner Schauner asked if the area north of the ringed area would be a collector street.
Struble said a collector street connected to Fenceline Road.
Mayor Rundle asked Struble about the cost to reengineer that area that went through the Ring Park.
Struble said the cost would be approximately $30,000 to $40,000.
Commissioner Dunfield asked about the feasibility of putting bike lanes on a 31 foot wide street.
Struble said he did not have a problem with that idea. In fact, he said Almon had comment on the traffic calming effect and that probably had some effect. He said nationwide studies had shown that speeds increase with those bike lanes. A narrower street with a bike lane there might be some effect of calming.
Mayor Rundle said it seemed that the Commission needed to make a decision of whether or not there would be bike lanes and how those bike lanes and costs would be paid for.
Wildgen said if the 31 foot option was a compromise that would be a direction for staff.
Mayor Rundle asked if it would be proper to ask the head of Bicycle Advisory Committee to talk about the idea of leaving that 31 foot street the way it was engineered and adding those lanes.
Struckhoff said the Bicycle Advisory Committee had not discussed the technical aspects of a narrower street however, they were pleased with the dimensions and geometry of the bike lanes that were installed on 15th and 19th Streets.
Commissioner Schauner asked Finger about her comments in the October 14, 2003 minutes. He said the minutes stated, “Linda Finger said it was important to remember that not every collector street would have bike lanes.” He said that statement seemed inconsistent with how he read the ordinance which stated that every collector street would have bike lanes. He asked Finger if she was referring to retrofitting existing collector streets.
Finger said one way would be to retrofit existing collector streets, but that, regarding comment in the minutes, the other was to place bike lanes along designated collectors. Those collectors in the bike plan did not include very collector street, just those where lanes were recommended and it (construction of bike lanes as part of collector streets) was not part of the City’s development policy. It was not recommended to look at every single collector that was platted to have bike lanes, only those collectors that had been planned that way through the bicycle plan.
Commissioner Schauner asked if it was Finger’s belief or Planning Staff’s belief that Harvard Road’s extension through Fox Chase was or was not a designated facility for such a lane inclusion.
Finger said it was Planning Staff’s belief that it was a designated facility for that lane inclusion. She said staff understood that retrofitting would need to be done where there was a bike route that shared a driving lane. She said staff understood that Harvard would be designed with bike lanes, but certainly that was not a point that had been made as a condition of any type of approval.
Commissioner Hack said if it was staff’s understanding that Harvard would be designed with bike lanes, was that written, indicted on a map or was it just their understanding.
Finger said it was what staff understood when looking at the bicycle plan and map. She said there was no connection any other place, east to west, between those roads, because the streets planned to the north of Harvard Road did not connect. The only collector road that went from east to west, Wakarusa to George Williams Way would be Harvard Road.
Commissioner Dunfield said even if those roads did go through, those roads were not the most direct way for a person on bicycle to navigate the street system which went against the City’s intent in wanting to make the bike system commuter friendly.
He said he had been concerned about the idea that a 36 foot wide street was needed in order to have bike lanes. He said he agreed with Struble’s comment, that wider streets did encourage people to drive faster and it went against some of the safety aspects that the staff was trying to work towards. He said if staff would permit this idea to go forward, he thought maintaining the 31 foot street and adding designated bike lanes to that street might be a good compromise in this case.
Hack concurred with Commissioner Dunfield particularly because of the increase in speed along wider streets and the huge increase in costs to redesign a street that might not function the way that a collector street should. She did not have a problem with the bike lanes, the re-striping of the street, or keeping the 31 foot street width, but she did have concerns about the timeline. She said there was also an issue of fairness and due process and if the Commission could compromise on the 31 foot street and striping that street for a bike lane that was probably the best of all worlds.
Commissioner Schauner said he supported bike lanes and there should be an interconnected bike lane system across the City. He said secondly, there were some assumptions made by the City Commission, City Staff, and the developer by looking at a map that was several years old and did not particularly delineate what street was which. He said both sides probably share some of that responsibility for not asking specifically the question about bike lanes in light of the fact that there had been an on-going discussion, for a number of years, about bike lane creation. He agreed with Struble that bike lanes were probably not the place for elementary aged bicycle riders to be. He thought those elementary aged bicycle riders should be on a sidewalk or someplace anywhere except in the street. Bicycle lanes did not provide protection from fast moving vehicles.
He concurred with Commissioner Hack. He said he did not like the idea of a last minute rework of this plan. He did not think it was fair to the developer and staff owed it to the developer to be more specific about what the City’s expectations were in this case. He said a 31 foot street with striped bike lanes seemed like a compromise. He hoped that staff would update the Bicycle Path to more accurately reflect where developers could expect to have to put in a bike lane whether it was on a 31 foot street or an 80 foot street. He said everyone needed to know what the rules were now and that the City should consistently apply those rules on future projects.
Mayor Rundle said his concern was to protect the integrity of the system and having it stop at a certain section of Harvard Road and veer off into another area was undesirable. He said he thought this was a good compromise.
He said clarifying guidelines and consistently applying those guidelines had always been an overriding concern. He said perhaps it could be designated somehow that all collector roads would have bike lanes and set up some consistent guidelines.
Vice Mayor Highberger said he supported the compromise suggested by Commissioner Dunfield. He said he was not too concerned about the process. He did not see anything in the documents that the City Commission passed that would require the developer to install bike lanes on the street, yet given the layout of the street in this neighborhood, it was the only logical place for construction of a bicycle connection. He believed this compromise would achieve the City’s long terms goals while placing the negative impact on the developer. He said it raised the question on how neighborhoods were designed in this community because it was pointed out that bike lanes on collector streets were not designed for children riding bicycle to school. The way this road was designed, there was not another way for a child to get to school except in a car. He said the City needed to stay ahead of this process.
Commissioner Dunfield said in all of the City’s neighborhoods, he would encourage elementary school students whether on foot or on bicycles to use the sidewalks and not to use the streets, local collector, or otherwise.
Chuck Soules, Public Works Director, said if a four foot bike lane was established on each side that would reduce that driving area to 9 foot wide lanes. He did not have any disagreement with the City Commission’s actions, but that street lane width seemed narrow.
Finger said she believed those bike lanes were narrower than 4 foot on those streets.
Mayor Rundle suggested that if Harvard Road needed reengineering, then the City would need to consider paying for any reengineering that needed to done. He said the Smart Growth Consultant might help the City find ways to bridge that idea of building neighborhoods.
Moved by Hack, seconded by Dunfield, to direct staff to require bike lanes on a section of Harvard Road in the Fox Chase South Addition with the total street width to remain at 31 feet. Motion carried unanimously. (19)
Consider adopting Resolution No. 6541, regarding the Patriot Act.
Mayor Rundle suggested allowing 30 minutes for supporters and opponents of each of the last two regular agenda items.
Moved by Hack, seconded by Rundle, to extend the meeting until the completion of the agenda. Motion carried unanimously.
Dinah Lovitch, member of the Lawrence Bill of Rights Defense Committee, said that this resolution was modeled on the one proposed by the National League of Cities. It had been modified to include language from the original resolution that reflected the uniqueness of Lawrence. There were two differences, the first difference was that Section four of the proposed Lawrence resolution, as in the Lawrence Bill of Rights Defense Committee Resolution, it requested that the Lawrence Public Library post a notice to it’s patrons indicating that Sections 215 of the Patriot Act allowed their records to be searched without their knowledge. In addition, Section five commended the Library for protecting the privacy of its patrons. There were still many people who had not heard of the Patriot Act or do not know of its provisions. She said a sign in the Library or a handout with the same information would begin to educate people about the Patriot Act at the very least and was important.
She explained the second difference concerns Section 8 of the Lawrence resolution. The Lawrence City Commission urged that portions of the Intelligence Authorization Act of 2004, expanding the authority for the use of national security letters be examined and repealed. She said that it was a replacement for the thirteenth “whereas”, in the National League of Cities Resolution and this was two “whereas’s” below the list of provisions of the Patriot Act that were problematic and it began “Whereas new legislation has been drafted entitled the Domestic Security Enhancement Act.” She said this was known as the Patriot Act Il. This legislation was not going to be submitted intact perhaps because the Justice Department had realized that Congress considers it too draconian and too frightening. She said the National Security Letter provisions of the Right to Financial Privacy Act included in the Intelligence Authorization Bill of 2004 reflected this piecemeal submission. This Bill expanded the FBI’s ability to use National Security Letters (NSL) without judicial approval to obtain personal information from businesses about their clients. Until this Act was passed NSL’s were used very sparingly to obtain information pertinent to foreign intelligence, counterintelligence and international terrorism investigations. The only categories open to investigation, and those were very narrowly defined, were financial records, credit reports and communications concerning transactional or billing information. The new bill, however, was not crafted just for intelligence purposes and it expanded the definition of financial institutions to include such things as: pawnbrokers, insurance companies, and travel agencies. The records that those institutions would need to disclose would not be limited to financial records, but could be “any record held by a financial institution pertaining to a customer’s relationship with the financial institution” which was from 12 United States Code, Article 3401, Section 2. Prior to this Act, the Patriot Act had already lowered the standards for issuing NSL's. Before the Patriot Act the government had to show “specific facts giving reason to believe that the records being sought pertained to an agent of a foreign power.” After the Patriot Act, records could be taken if they are deemed to be “relevant to, or sought for foreign, counterintelligence purposes.” She said John Ashcroft had claimed the Patriot Act was targeted only to terrorists. There was now evidence that it had been used openly, in at least one ordinary criminal investigation in what she believed to be a clear violation of the Fourth Amendment. According to a November article in the Las Vegas Law Review Journal, federal authorities confirmed, “the FBI used the USA Patriot Act to obtain financial information about key figures in its ongoing political corruption probe centered on strip club magnet, Michael Golardy, a world-famous terrorist.”
She quoted a person from the Dallas morning news, on September 7th, 2003, “that the government had not revealed most of the details of how it has applied the Patriot Act. The Justice Department told Congress in May, that it was using the law in criminal cases, not just terrorism investigations.” Federal agents had used the new tools to seize a conman’s assets, track down computer hackers and a fugitive and so on. In house documents showed that prosecutors are exploring other ways to use Patriot Act authorities in criminal investigations. She added, remember, in the Patriot Act the standard of probable cause mandated by the Fourth Amendment no longer applied.
She said 4 states and over 200 cities have expressed reservations about the Patriot Act to members of the Senate and Congress. What a strong voice that was, much more powerful than even private citizens writing their own Senators and Congressmen, yet entirely analogous. This voice had given Congress the impetus to propose legislation such as the Safe Act and the Right to Read Act that would amend or eliminate some of the most harmful provisions of the Patriot Act. As a member of the Lawrence Bill of Rights Defense Committee, but more importantly, as a citizen of Lawrence, she hoped that the City Commission would vote in favor of the resolution.
Mayor Rundle asked Lovitch if she was suggesting that the particular clause she talking about would be addressed in the resolution.
Lovitch said that clause was already in the resolution.
Mary Davidson, Douglas County American Civil Liberties Union (ACLU), spoke in support of the resolution. She said that the Douglas County ACLU would like to thank the Lawrence Bill of Rights Defense Committee for their work over the past year in drafting a resolution to oppose the Patriot Act. She said they would also like to thank Dave Corliss and Commissioner Schauner for drafting the resolution.
As a result of efforts across the country, by the ACLU and the Bill of Rights Defense Committee, nationally, more than 280 cities and four states had expressed opposition or reservations about the USA Patriot Act. The Douglas County ACLU with the Lawrence League of Women Voters and the Lawrence Coalition for Peace and Justice sponsored two very well attended public meetings on the issue. A vote in favor of this resolution would help to continue public education and action on important civil liberty issues, which were in serious risk under provisions of the USA Patriot Act.
Caleb Morse, President of the Lawrence-Douglas County League of Women Voters spoke in support of the resolution. He read from prepared remarks and said the board of the League of Women Voters adopted a statement on the Patriot Act and some related acts and executive orders in September of 2003. He said that the statement was complimentary and largely congruent with the resolution under consideration. Morse’s statement read:
“Since it’s establishment, the League of Women Voters has worked to protect civil liberties and promote public participation on all levels of government. Our deep concern for protection of civil liberties may be summarized by the League’s statement of position on individual liberties as announced by the national board in March 1982. The League of Women Voters of the United States believes in the individual liberties guaranteed by the Constitution of the United States. The League is convinced that individual rights now protected by the Constitution should not be weakened or abridged. The Board of Directors of the League of Women Voters of Lawrence Douglas County is deeply concerned by the implications of the USA Patriot Act of 2001, the Homeland Security Act, several acts and executive orders, provisions of which may authorize the federal government to infringe upon rights and liberties guaranteed by the United States Constitution, these rights include freedoms of speech, religion, assembly and press, protections from unreasonable searches and seizures, the rights of council and due process in judicial proceedings, and equal protection under the law. Furthermore, portions of these acts and executive orders impact our libraries and other sources of information reducing personal privacy even as they restrict individual’s abilities to obtain public information as provided under the Freedom of Information Act. We join with the League of Women Voters of the United States, the League of Kansas and state and local chapters nationwide in urging out Congressional Delegation to work for the repeal of provisions within these acts and executive orders that infringe on the rights of citizens and residents of the United States. Further, we strongly oppose pending legislation, such as the Domestic Security Enhancement Act and any future legislation that might undermine or curtail the fundamental rights and liberties set forth in the Constitution and the Bill of Rights. The political, cultural and ethnic diversity of Lawrence and Douglas County contribute in immeasurably to making out city and county a unique and desirable place to live and are especially threatened by provisions of these acts and orders. We urge or local elected representatives to consider carefully and to monitor closely the implementation of these acts and executive orders in Douglas County, making sure that the enforcement of our laws is not in violation of constitutional rights and basic civil liberties. If anyone is aware that the following kinds of activities have taken place, we hope that they will bring them to the attention of elected officials and the public. These are enumerated as follows: monitoring individuals exercising their first amendment rights in political and religious gatherings, obtaining library records and records of book store and grocery store purchases and monitoring website activities, issuing subpoenas without a court’s approval or knowledge, requesting non-consensual releases of student and faculty records from public schools and institutions of higher learning, and eavesdropping on confidential communication between lawyers and their clients. In conclusion, the protection of civil liberties should continue to be the foundation on which our democracy rests.”
Steve Stemmerman thanked the Commission for considering the resolution. He provided a list of the cities and communities that currently stood at 293. He also provided the resolution from New York City which was stronger than what was being considered at this time.
Doug McClendon stated that as a citizen of Lawrence and a citizen of the country he agreed with the position stated by the ACLU and other members.
Michael Almond spoke in support of the resolution as it was drafted. He said he was disappointed that guidelines for the City of Lawrence Police Department regarding due process was not included in the resolution. He said he was concerned that the Patriot Act was a step toward militarizing the police force. There was more to the difference between the military and the police than just levels of training. Military, for the most part was entitled to do whatever they wanted when they were in combat. Generally, the military operated outside the borders of the United States while the police and FBI operated within the borders of the United States. The military when they were engaged in combat, do not read someone their Miranda Rights, whereas the police were restricted by Constitutional protections of our civil rights to engage in such kinds of constraints. One of the most controversial issues in recent decades was the development of SWAT teams, which were essentially the militarization of police. He said a number of police departments had lawsuits, litigation, reprimands and fines because of those SWAT team when they went beyond their bounds even though they were engaged in those SWAT teams.
He said he would like to know whether the Lawrence Police Department followed all the principals of due process which he understood that the police department did. The Patriot Act would eliminate the need for a lot of that due process depending on the situation. If the Lawrence Police Department were called to assist federal agents who were not following due process, then the Lawrence Police Department would therefore not be engaged in due process. He said if there was not a section in that resolution giving the LPD the guidelines that the City of Lawrence should follow due process, in all cases, then we had no guarantee that was going to happen. He then asked if there was anyone who has any accountability for the Lawrence Police Department other than themselves. How often is there a review of their activities other than if they were taken to court?
He said he did not see why the City Commission should feel like they should give a guideline to the police department to follow due process, if the Police Department already claimed that they followed due process. He said if the Police Department was already following due process and they intend to continue to do so, then there should be no objection for that issue to be included in that resolution.
Commissioner Highberger thanked everyone for his or her work on Resolution 6541. He said that everyone expected the Lawrence Police Department to comply with due process procedures and to uphold the civil rights of the citizens of Lawrence. He said he did not think that this resolution was the place to address that issue. He said if the police department was inclined to not follow due process, he was not sure that this resolution would make a difference one way or the other.
He said he believed that this resolution would serve its purpose to get the message across to President Bush, Attorney General Ashcroft, and our Congressional Delegation. He said he thought that the resolution stated the City’s intention, that we hold our rights as citizens very dear and we were not going to let go.
Commissioner Dunfield concurred with Commissioner Highberger.
Commissioner Schauner also concurred. He said he was pleased with the willingness of the defense committee to work with Corliss and himself, in drafting the resolution that was under consideration. He said the timing was better now than it was a month ago when Congress was taking up the issue of revisiting some of the repealing and/or reauthorizing some sections of the Patriot Act. He said he thought that by acting on this resolution tonight would be a timely exercise, and he thought the resolution expressed the City’s commitment as a city government as well as on behalf of our citizens, our support for Constitutional rights.
Commissioner Hack said when this issue first came before the Commission her concerns were that in this country she felt that the support of or lack thereof for the Patriot Act, had become in some cases, a litmus test for our patriotism or our commitment to civil liberties, but that was not it on either angle. She said her restraint on this resolution, was whether or not this was appropriate action for a City Commission to pass that resolution. She said many other communities had felt otherwise.
She said we do lobby our legislators, but we never had lobbied by resolution, and she felt it was not appropriate to do so. She said the current resolution was far easier to accept than the first original resolution; however, she said she could not support the resolution.
Mayor Rundle said he thought one of the main arguments had been that the Commission should not mess with federal law, but in his mind that federal government was our government. He said the responsiveness to citizens was one of the pillars of government. We lobby all the time against unfunded mandates. There were all sorts of things such as slavery, women’s suffrage that were either sanctioned or prohibited in the past until the people changed those issues through various means. He supported the resolution.
Moved by Schauner, seconded by Highberger, to adopt Resolution No. 6541, affirming the strongest support for Civil Liberties and the Bill of Rights and calling for the repeal of certain portions of the USA Patriot Act. Aye: Dunfield, Highberger, Rundle, and Schauner. Nay: Hack. Motion carried. (20)
Receive draft ordinance concerning restrictions on smoking in public places.
Toni Wheeler, staff attorney, presented a review of the draft ordinance that restricts smoking in public places. After the City Commission study session, staff was directed to prepare an ordinance that was similar to the one that has been implemented in El Paso, Texas. That was the ordinance that she would be reviewing with some minor changes. The “whereas” section contained some statistics that were provided to staff by the Kansas Department of Health and Environment.
She said Section 9-801 explained the purpose of the ordinance, which was to protect public health in public places and in places of employment. The definition section had a couple of changes from the El Paso ordinance. The El Paso ordinance had a definition of “bar” which staff eliminated and replaced with a “licensed premises.” That definition came out of the City’s zoning regulations and was consistent with other provisions of the City Code. Staff also substituted our definition of food service establishment to be consistent with our state statutes.
Wheeler said Section 9-803, got to the meat of the ordinance. This section prohibited smoking in all enclosed public places in the City and the ordinance listed several of those places. One change that was made in the ordinance appeared in Subparagraph O of Section 9-803. Staff elected to also exclude private clubs and fraternal organization facilities, which was not in the El Paso ordinance.
In Section 9-804 it clarified that smoking was prohibited in enclosed places of public employment. It required employers to adopt and implement a policy addressing smoking, posting that policy, and communicating that policy to their employees and making the policy available to applicants and current employees.
Section 9-805, provides property owners and managers with the option to declare an entire establishment non-smoking. For instance, if there was a restaurant that had an open terrace, the property owner or manager could declare the terrace also as nonsmoking, if they desire to do that.
Section 9-806 makes this ordinance applicable to the City owned facilities.
Section 9-807 addressed where smoking was not regulated in public and private places. The ordinance listed those sections, including: private residences, unless they are used as a child care facility or health care facility; a certain percentage of hotel and motel rooms, 25% of those rooms that are rented to guests; retail tobacco stores; and restaurants and other meeting rooms when they are being rented for private functions; outdoor places of employment; and private places are not covered by this ordinance.
The next section required property owners and managers to post signs regarding the smoking ban, and it specified how those signs should appear.
The next section provided that the Lawrence Douglas County Health Department would help facilitate this ordinance by being a resource to the community and providing some educational materials.
The next section dealt with enforcement which designated the Fire Chief or his or her designated agent to be the enforcement authority. The Fire Chief was currently the enforcer and authority of our current regulations. This also provided that other City departments, that inspect as a part of their responsibility such as the Police Department or the Codes Enforcement Division, could also be looking for compliance with this ordinance.
The next section explained that an employer could not retaliate against an employee or an applicant who chose to exercise their rights under this ordinance.
The next two sections, 9-812 and 9-813, were provisions that were in our current smoking regulations and staff retained those provisions even though the two sections did not appear in the El Paso ordinance. It was unlawful to sell tobacco products to persons under the age of eighteen years of age.
The next section explained the violations and penalties for this ordinance and established the fees, which was one hundred dollars for the first violation and it escalated after that.
The last two sections were general sections that appeared in ordinances that stated compliance with other laws.
Finally, staff inserted an effective date of the ordinance to be July 1, 2004, which date could, of course, be modified as the City Commission saw fit.
Kay Kent, Director of the Health Department, said public health had a responsibility for promoting healthy behaviors, preventing disease, protecting the public from health hazards and they worked to eliminate preventable causes of illness and death. Tobacco use continued to be the number one cause of premature death in the United States and exposure to secondhand smoke was a serious health hazard whether on the job, in public places, or at home. There had been tremendous scientific advances and our knowledge about the hazards of smoking and the health consequences of exposure to secondhand smoke and by eliminating exposure to secondhand smoke we could prevent disease, illness and death.
The Health Department had been a part of the Douglas County Community Health Improvement Project (CHIP) since 1997 and in that project they had been educating the public about the adverse effects of environmental tobacco smoke and they had been increasing the number of smoke free environments.
In 2001, Douglas County Community Health Improvement Project (CHIP) conducted a public opinion survey about secondhand smoke. That survey was done by the University of Kansas Policy Research Institute. It was a random telephone survey of Douglas County residents. The survey results were weighted by age and gender to reflect the 2000 census and the results were representative of the county. She said as a result of that survey, there were two key findings.
First, 92% of Douglas County residents believed secondhand smoke was harmful to their health. When asked if everyone deserved to have a smoke free place to work, 90% either agreed or strongly agreed with the statement.
She said the issue of secondhand smoke may appear to be one of individual rights however this was clearly a public health concern due to the adverse effects on individuals inhaling environmental tobacco smoke in public places. Smoke free environments remain the most effective method for reducing exposure to secondhand smoke and protecting everyone’s health. The local survey results show a vast majority of residents believe all people deserve a smoke free place to work.
She said the ordinance was patterned after El Paso and the ordinance had been in place there for more then two years. They had conversations with El Paso Public Health Department about their experience with the smoking ordinance that eliminated smoking in public places and places of employment. What the El Paso Health Department suggested was it was a straightforward ordinance, easy to enforce, that public employers were not confused about what was expected of them, and that the implementation and enforcement had gone smoothly.
She said from a public health perspective, eliminating smoking in public places and places of employment was good public health policy. The role of the Public Health Department, the Lawrence Douglas County Health Department as written in this ordinance, they believed was an appropriate role for the public health department. She said they were committed to working with the City and the community for the successful implementation of this ordinance.
Dr. Lida Osbern, a Pulmonary and Critical Care Specialist, discussed the hazards of secondhand smoke. She forwarded an article to the City Commissioners that had just come out in the Journal of the American Medical Association, March 10th 2004. In that article it referenced eight articles regarding the hazards of smoke, but what was being discussed was secondhand smoke.
On the second page of this article, she said she had highlighted the fact that “smoking continues to be the number one cause of death in the United States.” She said in the year 2000, 435,000 deaths were attributable to smoking which included 35,000 deaths due to secondhand smoking and meant that 35,000 people in the United States in the year 2000, who were nonsmokers died of their exposure to secondhand smoke.
The Environmental Protection Agency had classified secondhand smoke as a Grade A carcinogen, exactly the same level of carcinogen as asbestos. Grade A carcinogen meant “known to cause cancer in humans.”
She said there was talk in Lawrence about personal freedom and she said she was all for personal freedom, but we do not allow the personal freedom to bring asbestos into the workplace or into a restaurant. She said we should not allow the personal freedom to bring an equally toxic carcinogen into any workplace or restaurant.
On the economic level, there had been a lot of concerns expressed that some businesses in Lawrence, bars and restaurants, might have a poor economic impact. Every city so far, which has enacted a smoking ban, had either a neutral effect or a positive effect on that city’s profits after the ban. The data from New York City, one year after their complete and total ban, was an 8.7 increase in tax receipts for restaurants and bars in New York City one year after the ban.
Regarding economics, if any profession was likely to suffer from this smoking ban, it would be her profession. She said she hoped to see less pulmonary problems develop, and she knew that patients who already pulmonary problems will do better. She said she was at an economic risk, but that was an economic risk she was willing to take.
On the last page of that article, she had highlighted a comment by Hippocrates and read it to the audience as her final statement. “In ancient times, Hippocrates stated that ‘the function of protecting and developing health must rank even above that of restoring it when it is impaired.’” She said that she didn’t think that she could say it any better.
She introduce Byron Brooks, who had given her permission to share with the audience that smoking had led to the removal of his voice box due to lung cancer and smoking. She said that he was on oxygen 24 hours a day because his lungs have emphysema, due to smoking. She said Brooks had traveled around to the different schools in Lawrence to talk to the students about the dangers of smoking.
Byron Brooks spoke in support of this draft resolution. He spoke with an instrument because he did not have a voice box due to cancer. He said he was sure if the audience thought about it, the audience would realize how he must have felt when he woke up and had no vocal chords. He said that he could also no longer smell, because the air could not go through his nose and that made his nose inoperative. He said he knew that this whole situation is contentious, but he learned a lot by going around and talking to the kids. He said when he was a kid everybody was smoking and they knew it was bad. He said he did not believe that anything would happen to him so he kept smoking. He said when he was about 60 years old he began to realize that he was not breathing so well. As a result, he quit smoking so that he could see his granddaughter grow up. He said he quit smoking, but had a lot of discomfort. There was no real purpose for smoking in the world, it had no redeeming features and we were quarreling about smoking.
He hoped that everyone would not pass up this opportunity to show their children and grandchildren as the City Commission as authorized leaders could take a stand against the thing that was causing those children trouble.
Carrie Pohl, Coordinator for Clean Air Lawrence, a community coalition that had been working toward a hundred percent smoke-free workplaces in Lawrence, said over the past seven months they had been trying to educate citizens on the dangers of secondhand smoke and promote that policy was the highest level of protection for the public against exposure to secondhand smoke.
She thanked the Commission for addressing the issue and she agreed that this was an issue of personal rights, the rights of the nonsmoker. She said Clean Air Lawrence supported the current proposed ordinance and she urged the Commission to vote on the smoking ordinance as it was presented as a hundred percent smoke-free workplace. She submitted petitions gathered by Clean Air Lawrence, in support of clean indoor air.
Melissa Smith, Community Facilitator, Douglas County Community Health Improvement Project, spoke in support of the ordinance. One of her primary areas of responsibility was smoking cessation counseling and she worked with smokers all the time.
She said she put herself through school working in restaurants and if she would have wanted to become pregnant, she would have a 15% less chance of becoming pregnant. She said she would also need to get another job because smoking caused low birth rate and increased chance of SIDS.
She said there were a lot of people who would say that there were a lot of smoke-free environments for a person to work in, but if you choose to be a server for your career, there were few table service restaurants that had gone smoke-free. There were not very many jobs available to those who would choose that type of career. She presented signed letters from people who did support clean indoor air policies.
Commissioner Highberger asked Smith about her remarks regarding low infant birth weight and SIDS as a result of smoking. He wondered if there were studies that correlated that with exposure to secondhand smoke.
Smith said yes, studies addressing only to secondhand smoke.
Dr. Steven Bruner, a family physician in Lawrence for the past 28 years, spoke in support of the ordinance. He said he had written the Commission about his views on this subject and submitted new additional data for the Commission’s consideration, data specifically important to women. He said he might be one of the few people in the room old enough to remember the first tobacco war when there was a fight over whether or not smoking itself was harmful. The cigarette companies opposed that notion for quite some time and those companies had their own studies that they paid for. If there was ever any doubt about the health effects of smoking, those doubts had been answered by an unintentional social experiment, smoking in women.
In an article published in the Journal of the American Medical Association (JAMA) on April 14, of this year entitled “Lung Cancer in US Women a Contemporary Epidemic” and in an article published the same day in the Wall St. Journal, the results of that study were discussed. It was not news that when women began smoking in earnest around World War II they exposed themselves to the same risk of lung cancer as men. Sure enough the rate of lung cancer in women started going through the ceiling about twenty years later and now had increased a total of 600 percent. Lung cancer now killed more women than breast cancer, ovarian cancer, and cervical cancer combined. What was puzzling news, was although the rate of smoking in both men and women had declined by about 50% in men and 25% in women since it’s peak in the 1960s, and the number of lung cancer deaths was declining in men, lung cancer deaths had gone up 60% in women just since 1990. Even more alarming, only 85% to 90% of those women even had smoking history. According to interviews in the Wall St. Journal article many of the smokers had only a distant history of “social” smoking. The JAMA article examined in some detail the hypothesis that women might be more genetically susceptible to lung cancer than men and the possible mechanisms for such susceptibility. Whether the risk was truly different in women or not one thing was clear, the genetics of women had not changed in the past half century, but the environment those women live in had. He said part of that environment was environmental tobacco smoke. He said far more women frequent smoky bars as patrons and employees now than they did in the 1950s. Many of the servers in our bars were women. It was very possible and likely that the combination of inherent susceptibility and exposure to secondhand smoke was responsible for this expanding epidemic of lung cancer in the face of a contracting pool of smokers.
Finally, he said he would like to relay a conversation he had with a young female server at the Longhorn Steakhouse. He said when he asked about her fears about secondhand smoke, she replied, that she was glad she didn’t have to work in the bar. She then volunteered some very interesting information, “most of our servers I know, smoke themselves. But they only smoke on weekends when they go out. If they couldn’t smoke in bars, they probably wouldn’t smoke at all.” Maybe that nonscientist had identified the true source of our epidemic.
Dr. David Hiebert, a retired radiologist, spoke in support of the ordinance. He said in 38 years of practice he saw daily the ravaging effects of tobacco smoke in chest x-rays and other studies on thousands of patients with fever, chest pain, and worst of all shortness of breath. He said that he was never able to tell whether the disease was due to primary or secondhand smoke. He said that he was convinced that both were causative.
The current fervor over secondhand smoke has a curious parallel in our local history. One hundred years ago our city had a health problem called tuberculosis or consumption. There were dozens of treatments, but none were effective. People died of the disease. An identified cause of the spread of tuberculosis was public expectoration or spitting. An ordinance was passed prohibiting spitting indiscriminately. Saloons, barbershops and even banks provided highly polished spittoons. Paving bricks were created with the words “No Spitting on the Sidewalk “. There must have been loud public outcry citing loss of freedom to spit where and when desired. It was a natural right. Our ancestors recognized a public health risk and worked to reduce or eliminate it. True, secondhand smoke was somewhat different from secondhand spit. It was impossible to collect secondhand smoke or to eliminate it. Secondhand smoke and secondhand spit were similar.
A century from now our descendants would likely smile as they read in old newspapers of our agony in choosing the right course when it would seem to them, simply obvious. They would applaud our choice to create a comprehensive official forbiddance of smoking in public places in Lawrence.
Kim Richter, employee of KU Medical Center and member of Clean Air Lawrence, spoke in support of the ordinance. She said she did research on smoking cessation. As of 2000 there was published data on the economic impact of smoking restrictions on restaurant sales in 81 cities, in 6 different states and 67% of those restaurants had total smoking bans. She said there were some differences in the ordinances and difference in the methods used to study the impact of the ordinances on finances or revenues, but all the evaluations used sales tax data to assess the impact of those ordinances. Those sales tax data from all 81 localities demonstrate that ordinances restricting smoking in restaurants had no effect of revenues. Claims that the ordinances would hurt restaurants were made in every single one of the communities in which those ordinances were passed, but when the data became available a year or two later, these claims were proved to be wrong.
Since 2000, other places including the State of California, New York City, and El Paso, had passed smoking bans in all places of work and that included bars and restaurants. Evaluations using objective sales tax data in all those places had shown no impact on restaurant revenues or bar revenues, where that data was available.
She focused on El Paso’s ordinance because this City’s ordinance was parallel. She said El Paso looked at twelve year trends in sales tax data and then calculated the estimated sales revenues for the year following the ban and then compared the observed revenues after the ban to what the expected revenues would be and there was no difference.
There was now evidence from so many different communities, of so many different sizes, so many different locations and so many different demographic mixes. The question of whether clean indoor air ordinances affect restaurant revenues for good or for bad really should be closed.
Jeremy Osborn, a 21 year old college student, supported the ordinance. He said he liked beer and if the City Commission approved this ordinance, he did not know of any college students that were going to stop going out to drink beer.
Jamie Helstab, KU student, agreed with the last speaker’s comments. She supported the ordinance. She said that she did not believe that any student was going to make the 30 or 45 minute commute to Kansas City or Topeka, just so they could have five cigarettes to go along with their six beers that they had that night. She said she had many friends who smoke and she thought that they would be much more willing to stay here in Lawrence and step outside and have their cigarette instead of driving the extra miles.
She said she went to many of the bars and restaurants here in Lawrence and had found that she had to limit the amount of time that she could spend in a smoking establishment because the next day she woke up with a sore throat and it was not worth being in that situation.
Judy Keller, Executive Director of the American Lung Association, spoke in support of the ordinance. She thanked the Commission for a meaningful draft ordinance.
She said she knew that the Commission was being asked to weaken the ordinance in many ways, but on behalf of the American Lung Association she urged them not to change it. Proposals to limit hours, require ventilation, exempt certain workplaces, create voluntary incentives or just post signs were all proposals that would undermine the intent of the ordinance. In short, they would cripple the ability to protect residents from the dangers of exposure to secondhand smoke and every weakening would be unfair, especially to local businesses.
Some people argue that it was their right to smoke and government had no business taking that right away. They did have a right to smoke, but they did not have a right to force others to breathe toxic air. A person had a right to drink, but a person did have a right to drive drunk. An individual’s rights end when the exercise of that right causes harm to others. She said to remember that a majority of our residents did not smoke and this ordinance would protect their rights to breathe clean air. She said smokers would still have a right to smoke after the ban, but they would need to take it outside so the rest of them could breathe.
She said we use government to protect health in lots of ways such as seatbelt laws, food safety laws, and drunk driving laws. She said we would not debate what time we would allow the carbon monoxide into the building, so why should we settle for a compromise with tobacco smoke, which was a known carcinogen.
She said that in her tenure with the Lung Association, she had met incredible people from all over the country, but there was one right here in town that she would never forget. She said that person worked in a popular downtown restaurant on Massachusetts and she had asthma. One night she went home after work, had an asthma attack and died. It was a totally senseless, needless death and she believed that Lawrence could do better than that. If five states and 76 cities and the entire country of Ireland could go smoke-free then surely Lawrence can. Some people say it would benefit the town’s economic development efforts.
She said Hank Booth conducted an informal study at noon Rotary on Monday. He asked the crowded room of about 100 or 125 people, downtown business leaders, how many supported a smoke-free workplace ordinance. She said 85% of those downtown business leaders raised their hands. This was a strong ordinance as presented and the ordinance would improve health and save lives. She said she applauded the City Commission for doing the right thing for the right reason and voting it into law.
Jessica Belmont spoke against the ordinance. She discussed the World Health Organization (WHO) study which was the only comprehensive study made on secondhand smoke that had ever been done. She said they heard a lot of statistics tonight based upon an Environmental Protection Agency (EPA) study, which was a meta-study, a study of other studies. The meta-study took 31 studies, examined those studies and drew a conclusion. Unfortunately for the EPA, that agency had to throw out of those 31 original studies, all but 12 studies because the EPA could not make the findings about secondhand smoke match their preconceived ideas. She said of the 12 studies that remained, the margin of error was doubled and the EPA still could not make secondhand smoke out to be the monster they had originally proposed. The sworn recorded statistics about secondhand smoke from the EPA meta-study were false.
The World Health Organization which conducted a ten year study on secondhand smoke which was a real study and not a meta-study, concluded that there was no significant statistical negative effect of secondhand smoke. She encouraged the City Commission to look up the World Health Organization study and read that data on the Internet.
Belmont said the main reason she was there was to talk about freedom of choice. She said she felt that this was an issue that business owners needed to make for themselves and they were smart business owners. She said regarding economic ramifications, the number from the Massachusetts Restaurant Association showed that 20% of local restaurant jobs were lost due to a ban.
Finally, she said this was an issue that affected the citizens of Lawrence in a major way and this issue should be a decision that was made by a referendum vote for the citizens of Lawrence with many choices on the ballot. She said allow the citizens of Lawrence to decide for themselves whether they want a ban that was from 6-9pm as communities near us have done, if they want to ban just in restaurants, if the want a total ban, if they want no ban, let them decide in a referendum vote.
Matthew Sullivan spoke against the ordinance. He said the ban would have a devastating impact upon the bar businesses in this town. Anyone who would say that the ban would not have an impact was either lying, misguided, or a slave to a preset agenda.
He said if the Commission voted for this ordinance they would be destroying jobs. The City Commission would be voting to destroy jobs in a community that was desperate for work. He said there was discussion about the concern for workers’ health and he asked that the community be concerned about the workers’ livelihood.
Second, he said this ordinance would change the character of the City. He said within five years from now the music scene would be little more than a joke. He said people like to drink and smoke at a rock and roll show. Again, he said the community was concerned about his health, but he asked the community to be concerned about his rights and liberties.
He said his third point was that the ordinance was just plain wrong and un-American. He said he had been taught from youth that he lived in a free society. We were told the armed forces fought for freedom and liberty, yet this ordinance was an affront to freedom and liberty. It was an ordinance designed to legislate and mandate a matter that should be a personal choice. He said the community was concerned about his health, he asks that they be concerned about his rights and liberty.
Darren Cauthon spoke against the smoking ban. He said that he was a non-smoker and he had seen the harmful effects of cigarette smoke. He had family members that smoke and family members who were subjected to secondhand smoke at their work place. It was for them that he was there tonight to remind the City Commission that it was their job to protect every resident’s ability to earn a living without fear of being forced to do anything against his or her own will. It was the Commission’s job to protect Lawrence residents from those that felt they had the right to threaten their lives. He said he hoped that the Commission would perform these duties by rejecting the proposed smoking ban.
He said he knew that the smoking ban proponents claim to be fighting for the side that was for life. To those proponents, he said he would like to point out that people are more than just bodies with a beating heart and a clean set of lungs. He said those people also possess minds with the ability to think, to choose their own values and to pursue their own goals. To us, life was more than simply surviving as long as they could. Life was the accumulation of all their choices, their work, and their achievements. Life was what each individual chooses to make of it. So if they were to live, they need to be free to make those decisions. They need to have the freedom to make their own decisions in all matters that affect their lives without fear of physical force from criminals, our neighbors, or our government. This freedom was not just something that was pleasant to have, it was a requirement for living, and it was this freedom that the smoking ban attacks. This was not an issue of choice between smoking and not smoking, but of who gets to make that choice.
If the City Commission treats this matter where property rights do not apply, where freedom just isn’t practical and where they needed the Commission to step in and take control of their lives, how could they trust the Commission to protect anyone’s rights?
He said he hoped that the City Commission really looked at what would happen if it lets the smoking ban go though. This would not be an ordinance against restaurants and bars, but people. Many people invest their hard work, money and their lives into their businesses and with one swoop of a City Commissioner’s hand it could all be gone. He said that it struck him as both callous and unrealistic that this Commission would even consider taking such a gamble with other people’s lives and if he were a business owner of Lawrence, he would be worried about who was next.
He urged the Commission to take a step back and try to realize the effect of what it was about to do. Stop this ban before it started.
Nick Colby, bartender and door person at two different bars, spoke against the smoking ban. He said was also a nonsmoker and that it was his decision to work in that environment.
William Colburn said this was a matter of choice. He said he had been both a smoker and a non-smoker, he quit for five years and decided to smoke again because he enjoys it. He thought the real issue was a matter of choice. He just graduated college in May and one of the things that kept him learning at that late point in his life was the fact that he was able to make his own choices. He said that he was really concerned with the decentralization of downtown as a result of this ban. He thought it would affect tourism. He did not think that Lawrence should model itself after New York and that New York should model itself after us.
He said that he was concerned that this issue would have major ramifications to the economy and not only the economy, but also the cultural milieu of Lawrence. He said that he moved here because it was a place that had a lot of tolerance and diversity. He thought that this smoking ban sent the wrong message to the people of the City that the Commission wanted to force the people to do something that was not illegal because it was not illegal to purchase cigarettes.
He said if we really wanted to stop smoking and eliminate the health risks of smoking then we would basically stop producing them and stop exporting them to the rest of the world. If we had to unify and say that smoking was bad, then stop making cigarettes and stop subsidizing it with the federal government. He hoped that the Commissioners voted no.
Pat Conroy, owner of Crown Amusement, said he sold cigarettes to local adult venues. This ban would take approximately 15% of revenue away from his business which would affect his family, business, customers, and the employees of those businesses. He said he could not afford to lose 15% of his revenue.
Tom Conroy, owner of Kaspar’s, said he did not smoke and he never had. He said he saw 50,000 volumes of one side saying that secondhand smoke was bad and 50,000 volumes on the other side that said that secondhand smoke was not bad and was not proven to be bad. He said because both sides had creditable scientific evidence, the Commission should not make drastic decisions to keep people from going into places that they chose to go in or not to go in.
He said everyone agreed that smoking was bad, but no one had anything concrete about secondhand smoke. This issue had become an ideological and political issue.
He said he would place a sign in front of his business that read “Smoker Friendly Place” that way people who came in for a job would know whether it was smoking or not smoking as well as his customers.
He said he would lose a lot of business because he could not have an outdoor venue where customers could go out and smoke. He said this smoking ban would hurt his business and he would need to lay-off some of his employees. The rights of a non-smoker should be the right to go into a smoker friendly establishment or to not go into a smoker friendly establishment.
Chuck Magerl, Free State Brewery, spoke against the ordinance. He said he was glad to here that the introduction to that ordinance the “whereas” was not drafted by City staff because there were some pretty embarrassing issues in that ordinance and he hoped that they would be stricken if the City Commission proceeded with that process. He said when the ordinance talked about tobacco smoke, he did not think that needed to be there.
The idea that there was no safe level of exposure to carcinogens, we would all have to acknowledge that our world was suffused with carcinogens and if looking at the information that came out of the International Agency for Research on Cancer, there were 82 volumes and 8 supplements with 37,000 pages of research on carcinogens. He said we needed to be concerned about our City water supply if we said that we couldn’t have any acceptable levels of carcinogens. Issues like that should be removed from this process.
Some of the other specific issues that need to be addressed were the odd definition of what would be banned. The ordinance stated that anything that was combustible was banned. He said there were expressed concerns having to do with businesses other than bars and restaurants for instance Waxman Candles would fall into that concern. Also, some of the issues dealing with church services and he assumed there was a separation of church and state associated with this issue.
He said business owners rely on insurance companies to assess the risk to their customers and staff specifically to workers’ compensation. There was not a risk assessment from workers’ compensation associated with this and their studies as far as what was their risk because they would be the one paying for any costs associated. He said that was not a factor that they determined to be a risk and why this Commission would decide that their analysis was not correct did not follow through.
He said he was not sure about the choice of using the El Paso ordinance as a model, but he realized that there were some commonalities such as the university. He said the climate was different in El Paso and the aspect of what it involved in going outside to smoke in El Paso in the winter was not anything near what the people in Lawrence would experience. He said the restaurant industry in El Paso prior to this and after this was not a thriving industry. El Paso’s restaurant industry ranks in the lower quartile of the per capita restaurant spending in the United States. If Lawrence wanted to make their restaurants like the El Paso restaurants all Lawrence would need to do was to drop $14,000,000 out of the sales this year. If looking for examples, staff should look for examples that related to Lawrence such as Ames, Iowa or Iowa City. He said El Paso was a bad choice for comparison.
Mayor Rundle asked if Ames or Iowa City had smoking bans.
Magerl said the Iowa ordinances were overturned by their State Supreme Court, but basically that was one of those situations where Iowa State law had what was typically being called a preemption provision. In other words, cities could not enact something stricter than the state did.
Nick Carroll, owner of two downtown bars, said he firmly believed there should not be a smoking ban in Lawrence. He said when making an investment one of the last things a person would expect was a City or a government to tell you how to run your place and he believed that was un-American.
He said if the smoking ban was inevitable, he said he would appreciate if the City Commission would look at a model that was less severe than the El Paso ordinance. The first smoking ordinance approved was in Salina, Kansas, and that ordinance had more friendly clauses that supported businesses for example, the ban was lifted after 9:00 p.m. and resumed at 5:00 a.m.
He said when he spoke to the Mayor of Salina, the Mayor told him that the reason why there wasn’t a total ban was because their Commission felt it was unfair and they were concerned about the damages that it might cause employees and businesses. He said the Mayor of Salina stated that so far the people who had supported that ban had been satisfied with how the ordinance was working.
Mike Casey, Vice President, Kansas Restaurant and Hospitality Association (KRHA) spoke against the ordinance. He said it was not the intent of KRHA to promote smoking or non-smoking, but to advocate the position that restaurants were in the hospitality industry and each individual restaurant whose livelihood and return on investment depended on the sales and the profitability from the restaurants and had every incentive in the world to make the right decision as to the smoking environment of their businesses and to accommodate the dining wishes of their customers.
He said currently restaurants in Lawrence, like many other private businesses in Lawrence, have the right to establish the smoking policy best suited for their restaurants and customers have the right to choose the particular environment they wished to dine in. He said KRHA supported restaurants retaining the right to make that decision.
Industry statistics show that the number of smoke free restaurants were increasing every year and the percentage of seats allocated to smoking sections was decreasing. As competition increased and the average life span of a restaurant decreased again, restaurants have every incentive to make the smoking decision that best met the needs of their customers and their businesses.
He said all businesses deserved a level playing field in which to operate. He asked the City Commission to let the basic theory of supply and demand remain intact at food service establishments in Lawrence by continuing to allow business owners the right to choose the smoking policy best suited for their restaurants and the all customer the right to choose where they wish to dine. He asked the City Commission to vote no on any Lawrence restaurant smoking ban.
Peach Madl, Sandbar, spoke in opposition to the ordinance. She said she believed their employees and customers were making a conscious choice when they came to her establishment. She said her average customer visits her establishment two to three times a month and they felt that this ban was about social behavior. She said lets not put our smokers in the closet and celebrate social change with individual choice. She asked the City Commission to help come up with ideas that they could accommodate customers whether it would be ventilation, signage, or guaranteeing business owners outside space.
David Johanning, Manager of the Sandbar, said it was his choice to be in this businesses and the City Commission needed to leave the choice up to the people of Lawrence.
Marion Lynn spoke against the ordinance. He said he would work on one of his antique automobiles and use products labeled “known to the State of California to cause cancer in lab rats.” He said he would use those products because they were effective and because he chose to take the risk to do so.
In light of the fact that this City Commission had this very night, adopted a resolution decrying the Patriot Act, he found it ironic that such an ordinance as the proposed smoking ban would even be considered by the Commission. He said this was not a smoking issue; it was not a public health issue; or an employment issue, but an issue of free enterprise. If an individual exercised the personal responsibility to make the choice to operate a smoking establishment, then employees as well as customers might exercise the personal responsibility as to whether to patronize or work at that establishment or not. Customers who did not like smoking had the right to exercise the personal responsibility to make the decision to go elsewhere.
He said we made choices all the time, we make judgments and we take the personal responsibility to make the choices that we do in order to call the shots in our own lives. This issue was about choice very much as other issues frequently discussed. The free enterprise system worked best when the government left it alone. If one did not wish to patronize a smoking establishment, then one should not enter. If one did not wish to work in a smoking establishment, one should not work there.
The citizenry should be free from the excessive intrusion of government in its private businesses and social life. He said to enact such an ordinance in the City of Lawrence would violate the tradition and desecrate the foundation of this great State of Kansas once known as the Free State.
Jeff Singer, spoke against the ordinance. He said life inherently was not risk free. Every adult should have the right to make adult decisions about their personal levels of risk. He said smoking bans were part of a larger campaign to eliminate all risk from life and he thought everybody had a responsibility to reasonably reduce risk, but eliminating all risk was unrealistic.
He said unfortunately with secondhand smoke no one had been able to come up with sort of definitive level that was acceptable. He said he owned a business and he had everything invested in that businesses and now someone was coming along to take his choice away on how he could operate his business for a product that was totally legal to buy. He said since September 11th and the downturn of the economy, he was finally beginning to see some return of business again. To say that the smoking ban would not cause any detrimental effects to any of their businesses was totally incorrect. He said Lawrence was so close to other cities that allowed smoking that it would not be that big of a deal for those people to go to those other cities.
Rich Davis, Lawrence, spoke in support of empowering the voters on this issue. He said the voting turnout would be huge.
Dave Boulter, owner of Henry’s and the Crossing, spoke on the topic of assumed risk. He said we could not eliminate all of the risk, but we could continue to give the choices to people. He addressed their petition taken at Henry’s to show the dangers of statistics. He said Henry’s was a tiny establishment that had 1,454 people sign their petition that said, “We, the undersigned believe in freedom of choice for Lawrence business owners to decide their own smoking polices.” He said if looking at statistics, they were one of 44 bars that allowed smoking and if multiplied, he was representing 63,976 people. He said that was probably not true and people needed to be careful of statistics.
He asked the City Commission to continue this session at some other point to address the ordinance for example, in the ordinance, the way it was written, said that you could not have smoking paraphernalia or ash trays, but it did not say anything about cigarettes. Also, the ordinance mentioned that 25% of motel rooms would be set aside for people who did smoke. He asked the Commission if they were going to allow 25% of Lawrence visitors to be at risk. He said if the Commission was going to allow Lawrence visitors to make those decisions, the Commission must allow restaurants and bars that 25%.
He asked what real information did we have on air quality, how did it compare to his bar and restaurant. He said if the Commission was going to make an important decision like this there should be real data from this time. He suggested Austin, Texas as a city to emulate.
Commissioner Highberger asked Boulter about the Austin model.
Boulter said he thought Austin, Texas was an equivalent to Lawrence. He also suggested Boulder, Colorado.
Rob Farha, owner of the Wagon Wheel and the Bella Lounge, said his fellow restaurant/bar owners asked him to speak because he was in a unique position where he owned a smoker place, the Wagon Wheel Café and he was trying desperately on a non-smoking venture called the Bella Lounge which was completely smoke free.
He addressed the word “choice.” He said he came from Kansas City, worked for a Fortune 500 company and he made the choice as a non-smoker to purchase a bar where he knew he would be in a smoking environment everyday. He said this was a career choice and it was the employee’s choice to work at that type of atmosphere. He said if those workers were afraid of those statistics that they read, there were a lot of other career opportunities. Likewise, if those workers wanted to go to smoke free places, he said he had been open for 11 months and there was not a line out the door every weekend. If the demand was there for smoke free environment there would be more people in his establishment.
He said obviously he was against the smoking ban. If the ordinance was passed, he had great concerns in the college district where he had his bar the Wagon Wheel. People would be coming and going to smoke outside and it would create a lot of headaches.
David Dick presented a petition. He said several years ago the West Coast Saloon tried to have a smoke free area and it did not work.
Paul Van Cleave, K.U. Undergraduate, said smokers represented the lower social economic working class of our society. He said there would be fines of $100 to $500 on people who could not afford it. He asked that the City Commission not to adopt the smoking ordinance.
Amber Nickel, spoke on behalf of other bar employees. She said she needed to make money to pay her bills. She said she worked for the Bella Lounge and there was not a lot of support for that establishment. She said she did not think this type of decision should be made by the City Commission, but the decision should be made by the community.
Mark Larson said this was an issue of respecting each other. He suggested a licensing process as a possible alternative.
Boulter proposed another option. He suggested that every bar or restaurant post a sign notifying citizens that they were entering a smoking establishment. He said he would ask the hospital and doctors to come up with a list of ways to quit smoking and he would be happy to hand that literature out with every pack of cigarettes or drinks they sold.
Mayor Rundle said he had been polled by the press for his position on this matter and he was favoring a ban.
Commissioner Dunfield said despite comments to the contrary, this was a public health issue. If he was not convinced by the evidence that secondhand smoke was a significant risk, there would be no reason to discuss this issue. He said what was being discussed was eliminating a health risk to workers in workplaces in this City. He said when talking about rights and choices, that was fine, but this was an issue that pits one person’s rights and choices against another person’s rights and choices.
He said in terms of the issue of a public vote, the City Commission had dealt with other difficult issues and it was the City Commission’s job to handle those issues. He said his mail had ran at least 80% in favor of a ban. He said he was not there to vote based on what the public was telling him in terms of popular sentiment, but based on what he saw as a very significant and real health risk to workers in this community.
He said he talked to someone who had summarized the question of choice of rights. He said that person said that his right to swing his arms extended only as far as someone else’s nose. He said that was a particularly apt phrase when talking about secondhand smoke because they were talking about affecting somebody else’s nose and a smoker’s rights extend only as far as the next guy’s nose.
He said he was the one that has suggested the El Paso ordinance as a model. He suggested it not because Lawrence was like El Paso, but because it looked to him as a clean, simple, and comprehensive ban on smoking in public places and that was what he was interested in. He said he was willing to vote for the ordinance at this time with a couple of changes in the language in the ordinance.
Commissioner Hack said there was not a question in her mind about the dangers of smoking or secondhand smoke. She said the concerns that she could not get beyond the issue of choice. She appreciated Commissioner Dunfield’s comment about the arm and the nose, but the nose had a choice to be in there. She said the choices were made by patrons, employees, and owners.
She could not support the El Paso ordinance and perhaps the City Commission could come up with some type of negotiation and compromise.
Commissioner Highberger said none of the Commissioners campaigned on the platform of ending smoking in public places, but the issue was before the Commission and they needed to make a decision. He said his initial feeling was that the City Commission should try to find a compromise. He said everything he looked at did not seem satisfying. He said he did not think the Commission could distinguish between bars and restaurants because a smoking ban that applied for to restaurants, but not bars, would drive people out of restaurants and into bars.
The idea allowing smoking in places that had adequate ventilation would discriminate against the smaller local businesses who could not afford to put in ventilation equipment.
The time restriction seemed appealing to him at first, but the bottom line was if there really was a risk to workers from secondhand tobacco smoke then the time compromise was a cop out.
The argument had been made that people choose to work in those establishments, but he did not know any other workplace hazard where we would say that person could work somewhere else.
He said there were a lot of bad sides to all sides of this issue. He said he had been disappointed about the quality of information he had been given in terms of studies on health affects and economic affects. Almost all the information that he had seen tended to support the preconceived notion of people who were doing those studies. He said he had come to the conclusion that secondhand smoke in the workplace was a public health threat to employees and patrons. He said given those issues he supported the total ban.
Commissioner Schauner said he did not smoke and he was concerned about this as a public health issue which had been identified by a Surgeon General 30 or 40 years ago. He said it was a bad choice for people to make, to smoke or to be around secondhand smoke.
He was also concerned about the lack of good science on this issue and it was one of those issues that scientific evidence, proof, or studies to support any position that person wanted to take on this issue.
He also toyed with trying to find some compromise such as, a limited number of hours and trying incentives for businesses to become non-smoking, but as long as there were places that did permit smoking, the non-smoking venues like the “Bella Lounge” would probably have a difficult time being profitable.
He said what was clear was that the human condition was being discussed. The human condition was one that did not want to admit that it was mortal and that we would assume unreasonable risk from time to time.
He said he could not support a total ban. He said if this ordinance was on a ballot, he would vote for it. He said Rich Davis had it right in that this community would do itself and this City Commission proud if given the opportunity to have a full dialogue about this issue. He said he wanted this community to buy into whatever decision was made about a smoking ban or not having a smoking ban. He said if this community had a chance to exercise its right to vote on this issue, he thought the community was better off, the community would be less fractured, and that we would all be better for it, in the long run.
He said based on the emails that he received over the past couple of weeks it had run approximately 3-1 in favor of the ban. He said if in fact that was an accurate representation of the public sentiment, then the vote would be 3-1 in favor of a ban.
He said he would prefer that the City Commission submit this issue to a binding vote of the people. It was an issue that deserved that discussion and deserved that attention and he would like the City Commission to take that position rather than taking a particular position on this ban or any other ban.
Mayor Rundle reiterated what he had said in the newspaper in that he felt this was a public health issue. He said concerning the discussion of compromise, one of the bar owners said if this issue was not uniform the playing field would not be level. He said the most level playing field was for this issue to be uniform across all public businesses.
He said he did not think the Environmental Protection Agency ever wavered in their belief that smoking should be banned, but it was simply made politically impossible by the powerful lobbyists that were active in Washington D.C.
He said as far at the public vote, there was a protocol for people who carry a petition and reach a certain threshold. He said if that happened, then he supported this smoking issue being placed on the ballot, but he wanted to see that procedure followed.
Vice Mayor Highberger said he understood that the City Commission did not have the authority to place this smoking issue on the ballot. If the City Commission wished to place that issue on the ballot, the Commission would need to organize a petition drive for a binding referendum.
Dave Corliss said Kansas Statutes provided for initiative and referendum in Kansas Cities and was unique. The process would be for citizens to sign a petition that would be equal to 25% of the electorate at the last City election in 2003. He said that number translated to a requirement for a petition for signatures of 3,764.
State law did not allow this community to place items like this type directly on the ballot. There were statutes that allowed communities to place certain items on the ballot such as sales tax, elections and in some cases bond issuances. The only other mechanism to place an issue on the ballot was if the Commission had four votes to adopt a Charter Ordinance that would be related to authorizing the City Commission to adopt an ordinary ordinance and it would be akin to an advisory election. He did not think from a policy standpoint that the City Commission might want to pursue an advisory election. The best mechanism staff could see in State law was the initiative and referendum statute that existed for citizens to petition the City Commission with an ordinance. That ordinance then could be placed for public ballot and there were certain deadlines that staff would work with the County Clerk’s office.
Commissioner Dunfield discussed the public vote issue. He said it did not seem to him that it was appropriate to put public health on the ballot anymore than it would be appropriate to let citizens set the right blood alcohol level for driving.
He said it seemed that the job that the City Commission was elected to do in cases like this was to take the evidence that was available and make the best decision that the Commission could. He was not in favor of a referendum.
Mayor Rundle discussed the ordinance’s language in 980-2(L) concerning the words “combustible substance.” He suggested inserting “combustible smoking substance” for clarification.
Commissioner Dunfield said that particular definition was one that needed to be clarified. He also had a concern with one of the “Whereas” clauses in the draft ordinance which referred to “no safe level of exposure to carcinogens.” He suggested striking the word “carcinogens” and substitute “ETS.”
Moved by Rundle, seconded by Dunfield, to receive the draft ordinance concerning restrictions on smoking in public places and direct staff to place that ordinance, with the changes as discussed, on a regular agenda for first reading. Aye: Dunfield and Rundle. Nay: Hack, Highberger, and Schauner. Motion failed.
Moved by Highberger, seconded by Schauner, to receive the draft ordinance concerning restrictions on smoking in public places and direct staff to work with the ordinance proponents to place the ordinance, subject to the minor drafting changes as discussed during the meeting, on a future election ballot. . Aye: Hack, Highberger, and Schauner. Nay: Dunfield and Rundle. Motion carried. (21)
Corliss asked if staff had discretion to work with the proponent as to when that issue would be placed on the ballot.
Mayor Rundle asked if the statute set out time limitations. He said it would be preferable to not have a special election, but for this to be part of another election.
Corliss said staff recommended that the petition have an estimated time of arrival that was favorable for landing on one of the planned elections this year.
Mayor Rundle asked Corliss when speaking to Patty James (County Clerk) if a sufficient petition was submitted was the City bound within a certain window to have a certain election.
Corliss said that issue needed to be researched. He said Frank Reeb, Administrative Service Director/City Clerk, did get information about the deadline for a special question on the August primary ballot which was June 10, 2004 and the deadline for the November election was August 23, 2004.
Mayor Rundle said if the City did have that election, he asked if the City could stipulate that they would not fund a special election. He said it would be good information to know if the City would be bound by any regulations.
Corliss said those were good questions for staff to research.
Commissioner Dunfield asked for clarification on the motion. He said the motion was to work towards placing that draft ordinance to a public vote.
Vice Mayor Highberger said yes, along with the minor drafting changes that the Commission discussed.
Corliss said staff would draft a report for the City Commission.
Vice Mayor Highberger said the City Commission’s motion was to place that item on a ballot.
PUBLIC COMMENT:
During public comment, a member of the public asked if it was possible to have more than one option.
Highberger said the motion was to place that item on a ballot.
Mayor Rundle recommended that this item be discussed with the County Clerk or anyone who had some expertise on elections.
David Kingsley said given the Commission’s vote this item would become a political campaign.
A member of the public said one issue that was not discussed concerning the smoking issue was the cost of health insurance and most bar owners did not provide insurance.
Stuart Nowlin, Lawrence, said he sent an email to the City Commission concerning restrictive covenants that affect only one issue, but there were several issues involved with roofing material and the restrictive covenants that required this material on homes.
The Federal Emergency Management Study of tornadoes and high wind damage in Haysville and Wichita, Kansas, in 1999 recommended among other changes that shake shingles be replaced with asphalt to strengthen the structure and reduce the wind and storm damage to buildings. Covenants single out only roofing materials and did not address any other materials such as cedar or wood siding.
He said his insurance company offered him a 17% discount to put on an approved material and remove the shake shingles from his house.
He said he called the District Manager for State Farm who had some interesting points. He said the District Manager told him that the insurer placed an additional premium on homes in the State of Kansas using good roofs. The roof cost more, it sustained more damage, and was more expensive to maintain. Most wood roofs were not fire rated. Treatment of wood roofs was costly, varied, and required annual maintenance and the longevity of the treatment was not known so State Farm would not give that type of roof a rating. He said the manager noted that there was a difference if using old growth cedar because the grain was much tighter, but it was still not fire rated. In summary, the manager said wood roofs were not fire rated, they required annual maintenance, and were more expensive.
Another concern was safety. He said he was concerned about having dry firewood on his roof. He said the District Manager added to the cost to the City was higher in the event of a fire since the Fire Department would need to water adjacent roofs when there was an occurrence.
He said he had complete endorsement for eliminating that restriction from Chief McSwain; Rich Barr, Fire Marshal; and Victor Torres, Neighborhood Resources Department.
He asked the City Commission to draft an ordinance similar to an ordinance from Overland Park for adoption in Lawrence to help keep families safe.
Commissioner Schauner asked that this issue be placed on a future agenda.
Moved by Schauner, seconded by Dunfield, to adjourn at 11:10p.m. Motion carried unanimously.
APPROVED:
_____________________________
Mike Rundle, Mayor
ATTEST:
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Frank S. Reeb, City Clerk
1. Supplemental Agreement – No. 3 contact, Black & Veatch for Wastewater Treatment Plant expansion project for $32,400.
2. Bid Date – 950 Monterey Way sanitary sewer channel crossing improvements on May 11, 2005.
3. Bid Date – Comprehensive Rehabilitation Project, 1033 Rhode Island, 1026 W 29th Ct & 204 N Minn on May 18, 2004.
4. KLINK Project – 6th, Frontier Rd to Arkansas, milling, overlay & pavement marking to LRM for $462,297.90.
5. Supplemental Agreement – KDOT for inspection services for $23,007.45 for N Mich, Riverride Rd to W 2nd.
6. Bid Date – 2004 Overlay Program Phase 1, May 4, 2004.
7. Ordinance No. 7762 – (1st Reading) A-12-15-03, annex N of Clinton Pkwy & E of K-10 (SLT).
8. Rezone – (Z-12-49-03) 18.9332 acres from B-3 to RM-2, N of Clinton Pkwy & E of K-10.
9. Ordinance No. 7765 – 1st Reading, levy max assessment for Kasold & Peterson.
10. Ordinance No. 7766 – 1st Reading, levy max assessment for Peterson, from Kasold to 900’ W of Monterey Way.
11. Ordinance No. 7767 – 1st Reading, levy max assessment for Monterey Way from intersection of Peterson N to Grand Vista Drive.
12. Ordinance No. 7772 – 2nd Reading, rezone (Z-11-38-03) 12.3 acres from PCD-2 to M-1, NW corner of Legends & Research Park Dr (extended).
13. Ordinance No. 7744 – 2nd Reading, levy max assessment for Monterey Way (Peterson to Stetson).
14. Subordination Agreement – Marilyn Figuieras, 2044 Emerald Dr.
15. Subordination Agreement – Jonathan Willems, 2517 Cimarron Dr.
16. Signs – Community Interest for Lawrence Regional Antique Automobile Club of America.
17. TUPR – Walk-on item, TUPR-04-09-04, First State Bank, 3901 W 6th.
18. City Manager’s Report.
19. Bike Lanes – Harvard Rd in Fox Chase S Addition.
20. Resolution 6541 – US Patriot Act.
21. Ordinance No. 7782 – 1st Reading, smoking in public places.