March 8, 2005

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.  

CONSENT AGENDA

As part of the consent agenda, it was moved by Hack, seconded by Schauner, to approve the City Commission meeting minutes of February 22, 2005.  Motion carried unanimously.

            As part of the consent agenda, it was moved by Hack, seconded by Schauner, to receive the Aviation Advisory Board meeting minutes of January 13, 2005; Traffic Safety Commission meeting minutes of February 7, 2005; Historic Resources Commission Action Summary of January 20, 2005; and Neighborhood Resources Advisory Committee meeting minutes of February 10, 2005.  Motion carried unanimously.

               As part of the consent agenda, it was moved by Hack, seconded by Schauner, to approve claims to 319 vendors in the amount of $1,518,961.04 and payroll from February 20, 2005 to March 5, 2005  in the amount of $1,470,055.15.  Motion carried unanimously.     

As part of the consent agenda, it was moved by Hack, seconded by Schauner, to approve the Drinking Establishment Licenses for Ruchee Lawrence, 3300 Bob Billings Parkway; Ixtapa, 2016 West 23^rd Street; Marisco’s, 4821 West 6^th Street; Shenago Lounge, 2907 West 6^th Street; Pachamama’s, 2161 Quail Creek Drive; and El Mezcal Restaurant II, 804 Iowa Street. Motion carried unanimously.

As part of the consent agenda, it was moved by Hack, seconded by Schauner, to concur with the recommendation of the Mayor and appoint Steve Braswell to the Grant Review Board.  Motion carried unanimously.

The City Commission reviewed the bids for the UPS system with the 16K option for Information Services.  The bids were:

BIDDER                      12K VA BID                16K VA OPTION        TOTAL BID

Electronic Supply Co., Inc.              $29,339.00                  $955.00                       $30,294.00     

Tallgrass Technologies                      $29,865.00                  $1,541.00                    $31,406.00

As part of the consent agenda, it was moved by Hack, seconded by Schauner, to award the bid to Electronic Supply Co., Inc., in the amount of $30,294.00.  Motion carried unanimously.

       (1) 

As part of the consent agenda, it was moved by Hack, seconded by Schauner, to approve purchase of one (1) one ton 4X4 crew cab pickup for Fire/Medical Department from Shawnee Mission Ford off the MACPP bid in the amount of $25,914.  Motion carried unanimously.                                                                                                                                           (2)

As part of the consent agenda, it was moved Hack, seconded by Schauner, to authorize City Manager to sign Amendment No. 1 to Engineering Services Agreement with Professional Engineering Consultants, P.A. (PEC) for street and storm sewer improvements for Kasold Drive, Peterson Road to KTA Bridge.  Motion carried unanimously.                      (3)

As part of the consent agenda, it was moved by Hack, seconded by Schauner, to place on first reading Ordinance No. 7863, amending the City’s plumbing code concerning materials for drainage, pursuant to recommendation of Plumbing Board and the direction of the City Commission on February 22, 2005.   Motion carried unanimously.                                     (4)

As part of the consent agenda, it was moved by Hack, seconded by Schauner, to adopt Resolution No. 6580, authorizing the condemnation of necessary property interests for the improvement of Monterey Way, south of Peterson Road (Brunfeldt tract).  Motion carried unanimously.                                                                                                                                        (5)

As part of the consent agenda, it was moved by Hack, seconded by Schauner, to adopt Resolution No. 6581, authorizing the City Commission’s support of the Community Development Block Grant (CDBG) program.  Motion carried unanimously.                                 (6)

As part of the consent agenda, it was moved by Hack, seconded by Schauner, to concur with the Traffic Safety Commission’s recommendation to approve construction of a pedestrian refuge island on 9^th Street at Schwarz Road.  Motion carried unanimously.                   (7) As part of the consent agenda, it was moved by Hack, seconded by Schauner, to concur with the Traffic Safety Commission’s recommendation to re-open Goldleaf Place at Bob Billings Parkway, pursuant to conditions related to site distances.   Motion carried unanimously.

       (8)

As part of the consent agenda, it was moved by Hack, seconded by Schauner, to authorize the Mayor to sign a Subordination Agreement for Danette (Knowlton) Michaels, 945 Highland Drive.  Motion carried unanimously.                                                                               (9)

As part of the consent agenda, it was moved by Hack, seconded by Schauner, to authorize the Mayor to sign a Subordination Agreement for Lenny and Kimberly DeFazio, 1602 Irving Court.  Motion carried unanimously.                                                                                          (10)

CITY MANAGER’S REPORT:

            Tony Jones, Community Service Coordinator for Lawrence and Douglas County, presented information on the Community Service Office.  He also presented information on the graffiti removal program.  Graffiti affected the community in many ways such as lowered property values, decreased public confidence in the community, and it eroded the City’s image.  He said he utilized community service workers to remove the graffiti.  He suggested that if there were any property owners who needed help removing graffiti, to call his office at 785-832-5354 to schedule a time to meet with the property owner.  The property owner would need to sign a liability release form in order for the community service workers to clean up that particular site.  He encouraged every citizen in the area to call him about the location of graffiti. 

            Commissioner Schauner asked how many people were in the program.

            Jones said they come and go on a daily basis, but on average he had approximately 150 open files.  He said since he took over the office in 1997, they had placed over 90,000 hours of community service labor back into the community.

            Commissioner Schauner asked if Jones made any attempt to track the rate of those who had participated and would there be less repeat offenders if they had gone through that program.

            Jones said the number was minimal and he guessed that it was possibly 2 out of every 500 offenders and those individuals and they had been in the system for a long time and continue to be in the system. 

            Also, during the City Manager’s report, Commissioner Schauner said there had been some concern about not being able to use plastic bags for yard waste.  The paper bags were much more expensive.  He asked whether the City could look into providing the paper bags at a lower cost.  He did not want to compete with private industry, but at the same time, he had received complaints from people with fixed income who would feel the affects of having to buy that type of new bag.

            Wildgen said staff would look into that suggestion.                                                      (11)

REGULAR AGENDA ITEMS:

Consider recommendation from the Traffic Safety Commission for the installation of speed cushions along Bobwhite Drive between Bob Billings Parkway and George Williams Way.

            Chuck Soules, Director of Public Works, presented the staff report.  He said in February, the Traffic Safety Commission heard a request from Julie Dunlap concerning those traffic calming devices along Bobwhite Drive.  As a result, the Traffic Safety Commission considered that Bob White Drive was a collector street and speed humps would not be allowed but speed cushions would be an option. 

The traffic data that was obtained in January of 2005 found that traffic volumes ranged from 355 to a 1000 vehicles per day with the speeds that ranged from 25 mph to 44 mph.  Several of those locations were minimal in meeting the City’s criteria. 

The Traffic Safety Commission had lengthy discussions with the neighborhood and much of the neighborhood seemed to be split on those items.  The one recommendation the Traffic Safety Commission did recommend was the installation of speed cushions along Bobwhite Drive.  He said there was an existing sidewalk on the north side of the street.  The TSC recommended to the neighborhood to discuss those options and bring it back with the additional possibility of forming a benefit district. 

As far as the no parking issue, to restrict parking on those curbs would give a more open appearance and encouraged more traffic.  The comments from the neighbors included that this area still had a lot of construction going on and after the construction stops it would be more local traffic using that area.

He said, concerning costs, staff received bids for the Harvard traffic calming project and staff’s estimates for speed cushions and speed humps were a bit high.  The low bidder for speed cushions came in at approximately $3,500 and the speed hump at $7,000 which was somewhat more than he had anticipated. 

            Mayor Rundle asked how those speed humps and cushions interfaced with fire trucks.

            Soules said the speed cushions which were actually speed humps would go from the toe of the curb to the toe of the curb.  It had two openings where the wheel base of the fire truck could go through instead of going over the hump.  Hopefully, those humps would not slow fire or ambulances services.

Vice Mayor Highberger asked whether the TSC approved all the speed humps presented on the map.

            Soules said those were just the locations where the traffic information was filed.  To determine a speed hump location, staff would talk with the neighbors to figure out driveway, mailboxes, and other issues.  He said there would not be a speed humps by the cul-de-sacs, but he estimated that there would be three speed humps for that street.

Vice Mayor Highberger asked if there was a possibility that there would only be two speed humps.

            Soules said possibly, but to keep the speeds down, those speed humps would be spaced about every 400 feet.

Mayor Rundle called for public comment.

            Bruce Boyer, resident on Bobwhite Drive, said he was opposed to those speed humps.  He reviewed the City’s speed cushion policy (Resolution 6482).  He said item three on the City speed cushion policy stated that a speed cushion might be permitted on a collector street as designated by the City’s Master Plan with the following caveat; the 85^th percentile speed of traffic was 5 mph greater than the speed limit.  He said as Soules indicated, this traffic study marginally indicated that three of the sensors had speeds 5 mph over the 85^th percentile.  Interestingly enough, the proponents of this measure were on the opposite end of this street from the three sensors that picked up that 85^th percentile.  The other caveat was 24 hour two-way traffic volume greater than 3,000.  As Soules indicated, the highest volume was 1,000, 1/3 the requirement.  Still another caveat was cut-through traffic, more than 50% of the traffic during peak hours of the day. 

He pointed out that Bobwhite Drive was a dead end and serviced the local traffic only.  The policy also indicated that more than 50% of the frontage or roadway consists of residential lots facing the roadway.  The majority of Bobwhite Drive did not meet that criteria. 

He said item five in the criteria was a local consensus of 70% or more of the property owners within 300 feet measured along the center line.  According to estimates, that would be about 120 properties.  It should have required about 84 signatures on a petition in order for this to be before the Commission tonight.  He was amazed the TSC passed this on without asking to see if there was a local outcry for it. 

If the Commission decided to pass this application, he suggested the Commissioners look levying the costs of the installation against the proponents that were asking for it. 

He suggested a potential low cost solution.  As identified by the TSC, Bobwhite Dr. was not constructed under the requirements of a collector street.  In fact, through the design changes over the years, since he became a resident, it did not qualify as a collector street.  It was a dead end cul-de-sac.  There was no potential through traffic for it even if 1500 Road was eventually completed to the west because George Williams Way would be connecting very closely to Bob Billings Drive and continuing onto 6^th Street.  He suggested reducing the 30 mph speed limit to 25 mph and reclassify that street as a residential street.  

            Julie Dunlap, resident on Bobwhite Drive, said she wrote the letter which initiated this process.  She said she understood that 70% of the residents within 300 feet had to approve it after the Commission had approved it. 

            Soules said staff would typically take this matter to the TSC. If the TSC approved it then he would see if the City Commission was willing to do the work.  Staff would then identify the location of those speed cushions and work with the neighbors to see if 70% of the neighborhood supported the decision.  If the department did not get 70%, the speed cushions could not be installed.

            Dunlap said she understood the numbers were marginal on this issue.  Her experience with this issue was not doing the research on what qualified and what did not.  She was the mother of four children, age 7 and under, who played outside every second that they could.  She said her next door neighbor also had four children age 7 and under.  Neighbors across the street had children under the age of 5.  There were kids who would want to ride their bikes across the street, walk to one of the two grade schools with ½ mile, or walk to possibly the junior high school that was going to be built and that was just within a small number of homes on the street.  She said every time they were outside, cars were whizzing past.  They had seen close calls with kids and adults.  Due to the visibility in this area, she believed the numbers did not account for things that were experienced by individuals in the area.  As cars were traveling south on Bobwhite Drive from Bob Billings, they traveled straight uphill past Goff Court, over it and around a curve.   Those drivers would wind up a hill around a corner and there were 14 children that lived in a 5 house span.  There were also a number of residents in Cog Hill Court that had to cross the street to get their mail.  Obviously, the numbers meeting the City’s criteria was questionable and experiencing it was a whole different story. 

She suggested changing the speed limit to 20 mph.  

Jim Miller, resident on Sagamore Court which was the third cul-de-sac down from Bob Billings Parkway, opposed speed bumps on Bobwhite Drive.  He said his backyard and side yard ran along Bobwhite Drive.  He believed the traffic volume or average speeds did not warrant speed bumps.  He said he spent a lot of time outside playing with his children and did not see a problem.  He believed a lot of the traffic along this street was construction related.  As soon as the houses at the end of Bobwhite Drive were completed, they would lose all the construction traffic and that would greatly reduce the volume of traffic.

He believed the City would be wise to spend the money in an area that had real safety issues.  He did not want to pay for any unnecessary speed bumps out of his own pocket in the form of special assessments.  He asked the Commission to vote against the issuance of speed bumps on Bobwhite. 

He agreed with Dunlap’s suggestion to lower the speed limit and asked the Police Department to enforce that law.

Mary Jo Reed, resident on Cog Hill Court, said she had a letter from the majority of the residents on Cog Hill Court who agreed that the speed along Bobwhite Drive was excessive and they hoped to get a sidewalk constructed along the south side of the road.  Everyone agreed, something needed to be done such as speed humps or reducing the speed limit.  Speed humps were an inconvenience, but seeing an incident where someone would be injured would be far worse than the inconvenience or cost of a speed hump.  She submitted a letter to the Commission addressing that problem.

Bobbi Hinrichs, resident on Bobwhite Drive, spoke in support of the speed cushions.  In order for her four children to ride their bikes, other than in the driveway, they had to cross the street to get to the sidewalk.

            Amy Risley. resident on Bobwhite Drive, spoke in support of the speed cushions.  She had a three year old son and they crossed the street to play with the other neighborhood kids.  She had seen numerous instances where people were traveling at such excessive rates and because it was a corner and hill, the cars could not stop.  She disagreed with the testimony that once the construction was over the problem would subside; the residents were the problem.  It was many of the residents in the cul-de-sac on Bobwhite Drive.   She said during the TSC meeting it was mentioned that for every family that moved in, it could be averaged 10 entrances and exits per day and clearly those entrances and exits would be more than what the construction trucks were doing.

            Mayor Rundle said this was a new neighborhood with an old problem.

Vice Mayor Highberger said the street seemed to be an odd beast as far as it being a collector street.  It served as a collector street between Bob Billings Parkway and George Williams Way.  He agreed that safety was first and that cost should not be a factor.  The City needed to do what was necessary to make streets safe for pedestrians.  Hopefully, the City would continue to build sidewalks on two sides of all the streets that the City builds in the future.  He believed the sidewalk should be organized on a neighborhood basis. 

He said it was a close call for some of those warrants for the speed bumps, but he supported this request.  He also said it was important to remember that by approving this tonight, it was not necessarily going to happen.  The City had authorized numerous issues similar to this and the City was going to prioritize those and get as many of those built as they could.  It might be a few years out, but he approved moving forward.

            Mayor Rundle asked Soules to remind him of what speed the speed cushions could be safely driven over.

            Soules said with adequate spacing, the intent was for 20 mph speed, through the section or corridor. 

            Mayor Rundle said that speed was adequate for the character of the neighborhood.  He believed traffic could move along to get out to the major thoroughfare safely.

Commissioner Dunfield said it took a while for him to be convinced that changing the speed limit did not change the habits of people’s driving, but Public Works traffic engineering staff did just that.  The main thing a speed limit changed would make that 85^th percentile jump 5 mph above the speed limit.  He also knew that increasing traffic patrols to take care of all of those types of problems throughout the City was the most expensive traffic solution that they could come up with to solve that problem.  He said it made the cost of speed humps look like they were a drop in the bucket.  He said he did not like the idea that they had to engineer all of the City’s streets that way, but he was convinced that was the reality.  He agreed with the last speaker that the residents were the problems.  He said one solution that could be implemented today was to drive slower on your own street.  If 20 mph was a safe speed limit, then drive that speed limit on that street because it would have an affect.  He supported the TSC recommendation.

Commissioner Hack said that they just recently went through this same issue in her neighborhood for exactly the same reasons.  Going forward with this request would not get this issue resolved tomorrow, but the process could get started.  She said perhaps it was time to have some neighborhood meetings beyond the groups of people out there with their children.  She said she would approve this issue with the understanding that the speed bumps would not be going in tomorrow and it would allow the neighborhood to have discussion and support.

            Commissioner Schauner agreed with everything that had been said, but wanted to reiterate what Commissioner Highberger said.  It seemed to him that this was the result of a design issue; the lack of sidewalks, the creation of a quasi-collector street with lots of houses with driveways that created those problems.  Therefore, the City’s left with trying to retrofit the street to make it safer for families and children.  He said the City needed to think differently about how streets in neighborhoods were built to try to at least mitigate this issue up front rather than trying to retrofit it later.

He said there was nothing more powerful than a group of neighbors wanting something to happen and what the neighbor’s had done was a good example. 

He said Public Works and the Planning Department needed to insist on different ways of designing throughways to increase the safety factor for the ultimate consumer.  He was in favor of the TSC recommendations.

Moved by Dunfield, seconded by Schauner, to concur with the Traffic Safety Commission’s recommendation for the installation of speed cushions along Bobwhite Drive between Bob Billings Parkway and George Williams Way.  Motion carried unanimously.       (12)

Receive staff report on possible enactment of an ordinance establishing contractor licensing requirements

Victor Torres, Director of Neighborhood Resources, presented the staff report.  He said staff had worked with the Lawrence Homebuilder Association for over a year now trying to establish an effective contract licensing program for the City of Lawrence.  Johnson County had a good system in place and staff used their ordinance as a template to develop its own.  He said staff also looked at many other cities as well.  Staff had a lot of contact with the public as well as a presentation by the Lawrence Homebuilder’s Association where staff talked about the whole proposal and draft and received some comment from them at that time. 

During the month of December, approximately 750 notices were mailed to local contractors describing the proposed contractor licensing program as well as a draft ordinance.  Staff had received mostly positive comments back from those contractors and made adjustments to the draft ordinance. 

Two separate public meeting were held on January 31^st and February 6, 2005.  The draft ordinance and meeting minutes were provided via the department’s website. 

Lawrence Homebuilder’s Association, on September 8, 2003, sent a letter to the City to consider establishing regulations for contractor licensing of building contractors.  The letter described items the regulations would include such as an education component.  The City of Lawrence had contacted Johnson County to help provide education to the City’s contractors. 

The second item in the letter was a grandfather clause for active builders who could demonstrate experience and education.  He said similar to Johnson and Sedgwick County, the draft ordinance included a grandfather clause for experience. 

The third request was a requirement for proof of workman’s compensation and general liability’s insurance.  He said they addressed both those issues in the current draft as well. 

The fourth request was a fee structure that included only those costs associated with administering the program providing education credits.  He said staff came to a tentative licensing fee of $200/year per contractor and that fee included the fee of $135.00 for participating in Johnson County’s continuing education program.  He said 8 hours of continuing education for each contractor or qualifying party would be required.  There was a definition of that term “qualifying party” within the ordinance. 

The City did license the trade contractors which were electrical, plumbing, and mechanical however, there was no continuing education requirement for those groups at this time. 

There were five classification types established which were:

Class A – General Contractor

Class B – Building Contractor

Class C – Residential Contractor

Class D – Trade Specialty Contractor - Mechanical, Electrical, Plumbing, and Fireplace

Class E – Building Specialty Contractor, Framing and Concrete

He said the Class D was a new class type which included mechanical, electrical, plumbing and fireplace contractors because currently those contractors had their own separate ordinance and separate requirements and as staff developed this ordinance their goal was to place all contractors in the City of Lawrence into one ordinance with the same qualifications, insurance requirements, etc.

He said concerning the Class E - Building Specialty Contractor, when staff met last year in January, they had a request for framing and concrete contractors to be brought into this group of contracting specialties and identified requirements for licensing. 

Staff had included minimum experience for each contractor type.  Currently Johnson County did not have a minimum experience requirement.  He said staff felt that having a contractor take a test and have a minimum experience requirement would be beneficial to the City to make sure that those contractors know what they were doing and had some experience in that area. 

There was a lot detail and definitions in the document along with details on the renewal and restatement of the license itself.  Section 5-1215, talked specifically about the licensing of contractors that might be licensed by experience or licensed by “grandfathering” as commonly used. 

A Class A license would require a contractor to have 15 years of experience directly related to the type of work that they would be performing under a Class A, which was more than 3 story building, primarily commercial.  A Class B license would require more than 10 years experience; and Class C and Class E would require 5 years or more experience.  Staff looked at those numbers to make sure they were meaningful.  He said Bobbie Flory, LHBA Executive Director, did some research with the National Homebuilders Association to see if they had any idea as far as where those numbers came from.  The National Homebuilders Association had no evidence supporting those criteria.  He said staff felt comfortable that Johnson County was using those numbers and staff would incorporate those same numbers into the City of Lawrence’s ordinance as well.  If a contractor that was working in a specific class type that met the minimum numbers of experience could be licensed without having to take a test, that license would be good until that individual decided not to pursue that field anymore or had some other issues.   That would be considered as the grandfather clause by experience.  They would not need to take the test, but would need to meet the continuing education requirement and insurance requirements. 

He said there was a provision for contractor discipline and a Contractor Licensing Board was established that would hear complaints from the public or other contractors.  Staff had identified some areas that would be in violation of the regulations that were proposed which was in Chapter 5 article 13. 

He said there were three separate ordinances that would implement that idea along with a definition that described the composition of that licensing board.  There was also a section concerning the term of the board member. 

The last ordinance described the specific duties and responsibilities or rules and regulations of the Contractor Licensing Board and the type of complaints they would address and the types of appeals that would be heard.  The appeals that would be heard would be specifically to the contract licensing draft ordinance.  He said perhaps a complaint that someone did not post a permit or had continued violations of some type of code.  This was not about workmanship, quality or arguments between the property owner and contractor because that was more of a civil issue and that was not what this Licensing Board was about.  

Vice Mayor Highberger asked Torres to summarize the changes made after the public hearings.

            Torres said the purpose statement was modified slightly.  The text was modified because there was a comment from the public that the actual purpose of the ordinance was not as it was written.  Definitions were added such as contractor, agent, building official, copartner, contractor specialty, qualifying party, and structure.  A section was added to each different class type that allowed the contractor that worked in a specific area for a certain amount of time to be eligible for the next class type.  This allowed the contractor to not be locked into a specific category. 

He said 5-1218 was modified to talk about the qualifying party specifically and also included a definition because there were some questions regarding the continuing education.  The qualifying party was an individual that actually obtained the license for the contractor.  There were some questions regarding the qualifying party and staff reworded it to make more sense. 

There was also a comment concerning the Contractor Licensing Board to have the member changed from an architectural or civil engineer to a professional engineer.  There were other engineers that would be applicable to this board. 

Mayor  Rundle said he tried to carefully compare the Johnson County ordinance and this proposed ordinance and it seemed that there were some differences.  He asked if there was list of the decisions recording these differences such as the example of the purpose being worded differently. 

            Torres said the purpose was modified.  He said staff received a letter from Steve Glass, LRM Industries and Glass thought the way the ordinance was worded with “unscrupulous contractors” was a term in the Johnson County ordinance, and if looking at the contractor ordinance itself, it was not focused on that type of issue with the contractor, but more of a sense of regulation in establishing standards, unlike Johnson County which also focused on bad workmanship. 

Commissioner            Schauner said at the February 16^th meeting a question was raised about landlords and their ability to work on their own property.  There was an owner/occupied exception in the proposed regulations.  He said if he owned 15 rental homes, and had a history of doing his own work, was he prohibited from doing that work by those regulations?

            Torres said yes, if you were performing work that met the definition of a contractor which was to build, construct, alter, repair or demolish.  He said that was the type of contractor staff was looking at.  He said they were not looking at landlords that did the maintenance, painting or replaced carpets.  The city was more interested in the contractor that actually built the structure.   The section Commission Schauner referred to was 5-1204(b) which was a homeowner who personally occupied or would occupy and undertake the construction, alteration, repair, or maintenance of such homeowner’s single-family residence.  He said the ordinance was talking about a property owner’s own home and that a person did not need a contractor’s license to either build his own home or add an addition to his own home. He said the ordinance went on to read that any homeowner who undertook the construction of a new residence for such homeowner’s personal occupancy more than two times in any five year period shall be deemed to be a “contractor” under this Chapter.   He said Johnson County’s ordinance stipulated if a person built a house more than three times in a five year period, the individual would be considered a contractor.   

            Commissioner Schauner asked if the Contractor Licensing Board would require additional staffing.

            Torres said yes, a staff member would be a board member.  He said the way this ordinance was written included that a staff person would be a board member.  He said that was somewhat different from the current board today.  He said a staff liaison typically would take the minutes, but in this situation, a staff member would be directly on the board.

Commission Schauner asked if that would require additional staff.

            Torres said no because this board would not necessarily meet on a regular basis and would meet on an ad hoc basis when there was a violation.  He said they would have additional staff time associated with this contracting license program primarily since last week staff looked at the blended code option. He said when this issue was first discussed, he had mentioned to the City Commission that additional staff would not be needed because staff’s thought was that if the International Codes were adopted, staff would send contractor’s to Johnson County for continuing education and staff would receive a list of contractors and now someone from City staff would need to take the time to work on this issue.  The issue now was that the City had blended codes and staff would have Johnson County’s list along with some other process if staff was going to have trade contractors attend different training.  If the trade contractors were working under the Uniform Codes and would be receiving training under the International Codes, there would not be a problem. If those contractors were to get training under the uniform code, the contractors would need to get that training somewhere else because Johnson County only had instruction under the International Code.  He said someone would need to track which contractors were getting what training.

Commissioner Schauner asked how many of those tradesmen would be operating under the Uniform Code.

Torres said approximately 400 trade contractors would be impacted.

Schauner asked if those contractors holding a Class D license were the persons performing mechanical, plumbing and electrical work. 

Torres said correct.

Commissioner Schauner said the mechanical and plumbing groups had an interest in the Uniform Code.  He asked if those groups were currently licensed.

            Torres said they were currently licensed, but the city had no provisions for continuing education.

Commissioner            Schauner asked if those contractors received their training from another source other than Johnson County, what would be the rationale for increasing their fee from its current number to $200 annually.

            Torres said one would be for consistency and two would be that they had no idea where other training would be available.  He said staff came up with $200 amount because Johnson County was going to charge $135 to the City of Lawrence for continuing education.  He said a fee of $200 was currently charged in Johnson County and their numbers seemed to work out fine.  It was a good package when looking at the whole idea until separating the trade contractors.

Commissioner            Schauner said the trade contractors that might get their education hours from somewhere else and paid that fee would not receive any benefit from paying that additional $135 that would have otherwise gone to Johnson County. 

            Torres said that was correct.  The continuing education was yet to be determined.  The City did not know where that would be provided or how much it would cost.

Mayor Rundle asked what a person needed to do to become a contractor under the current ordinance.

Torres said there were no requirements for building contractors in the City of Lawrence.

Mayor Rundle said basically a person could have a check book with a little pickup and could be a contractor.

Torres said correct.

Mayor Rundle asked Torres to contrast that with licensing for plumbing, mechanical and electrical.

            Torres said there were three different ordinances for electrical, plumbing, and mechanical contractors.  Those individuals needed to meet a minimum experience requirement.  He said for example, an electrician would need to be tested to have a master electrician license which required so many years experience. 

Mayor Rundle called for public comment.

            Bobbie Flory, Lawrence Homebuilders Association, spoke in support of the draft regulations.  She said the group had long before talked about the idea of contractor licensing for the Lawrence builders.  In June 2002, the Homebuilders Association received a letter from one of its members putting it on the table that it was time to look at establishing licensing.  This was a controversial topic nationwide.  The LHA held a panel discussion with builders and code officials in Johnson County and had those officials come to Lawrence to explain how it worked and how it would affect the builders in Lawrence.  After learning how it worked in Johnson County the comfort level became not only good about establishing contractor licensing, but that builders were excited about this program.  That was when the LHA drafted a letter, which Torres referred to earlier, that gave the basic elements that the LHA wanted to see in contractor licensing program.  The most important was the educational component. 

She said the LHA also discussed the grandfather provision.  She mentioned the proof of workers compensation as required by law and general liability insurance up to $1million.  She said the LHA wanted the fee to be based on the actual expenses and costs to the City.  At that time there were no comments expressed or concerns about the grandfather clause.  They worked with Victor Torres, Barry Walthall, and Tim Pinnick to establish an ordinance that both groups felt confident about. 

She said the LHA saw that the contractor licensing regulations were a win/win situation currently with no regulations right now.  This was good for the credibility for the builders association because they came forward and initiated this process.  It was good from the community stand point because they had assurances that the builders were covered by insurance and had continuing education.  It was raising the bar on the education level. 

She addressed the grandfather clause.  She said her concern was establishing some criteria that threatened someone’s ability to continue with their livelihood.  They did not want to set up a situation where someone felt threatened for their business to continue.  The building in Lawrence was very good at the present time.  The building code officials did a good job in ensuring the structures being built met code.  She said she did not believe there was a problem with builders building products below code because they would not pass inspections.  The win/win was that they could only increase their knowledge and experience.  She said based on current timetables the grandfather provision would expire at the end of 2006 and from that point on, then everyone would be required to take a test.  It allows for those currently working to continue working and receive the positive benefits of being involved in a licensing program.  When that period ends, then everyone would be required to take a test.  All the input and buy-in by the builders had included the grandfather clause as an important element along with continuing education.

            Dave Reynolds, Lawrence contractor, spoke in support of the regulations as currently written.  The processes and requirements of this ordinance had plenty of precedent for years, both nationally as well as regionally and locally.  In regard to grandfathering, when the ordinance was written in Lawrence for the aged Mechanical Contractors, they were grandfathered in. Initially with the electrical and plumbing, there was some local examination because there was nothing nationally.  This had all evolved over the years.  Through the process, there had not been any faults from those requirements.  The ordinance he was asking the Commission to approve had precedent, experience, and worked well.

He said a problem in Lawrence was that anyone could be a contractor today.   For this reason, as an organization we needed to set a standard for how things were done.  This ordinance did raise the standards for individuals as companies.  By including those qualifying existing requirements on contractors, a minimum experience would be put forth, a minimum amount of education and insurance requirements.  This guaranteed the level of competency that the City did not currently have. 

By requiring the insurance alone, the City was guaranteeing protection from employees in the public, in terms of liability and workers compensation. 

This was a good faith initiative on the part of the building industry.  They were setting a strong standard of competence for initial qualification and the group was tightening those standards over time.  The process and requirements included in this ordinance was a proven process historically and at all levels of government.  It was not a faulty process.  Only good could come from this ordinance as it was written.  If it was tinkered with, the potential would go down. 

In regards to Commissioner Schauner’s idea of a blended code, approval of that idea was asking for nothing but trouble with regard to the City’s codes and how this program would probably work because the City would be setting itself up for conflict.  The entire world was going to the International Code.  In the codes known today, the UBC and the SBC, those regional codes were going away.  He said if the City continued to adopt those codes and continued to propagate those codes several things would be discovered.  One would be that education would be going away.  He said they were stopping the production of those books and there would be conflicts of interpretation.  He said if you call the building officials today which was IRC and asked for interpretation of the UBC, they would ignore you because they did not have the books.  The City would be setting itself up in a position where it would say they wanted to adopt this, but it was no longer supported by the very agencies that initially propagated it.         

Mayor Rundle asked him to identify the acronym IRC.

            Reynolds said it was the International Residential Code.  It was at all levels of government.  A blended code could have potential conflicts with state and federal standards.  The conflicting authorities could set up individuals for all kinds of problems with who interprets the final result.

            Ron Durflinger, President of the LHBA at the time it was resurrected in the early 90’s,  He said the purpose was not to make contracting exclusionary, but it was to raise the level of the work surface and encouraged a more professional activity.  Up until recently, it was never considered something the Building Inspection Department wanted to move forward with.   He thanked Victor Torres and the staff in Department of Housing and Neighborhood Development because they took the suggestion and did a lot of great work on it. 

He said he had a few exceptions he wanted to address.  He said the Neighborhood Resource Department had sent out 750 letters to affected individuals.  He said there were about 70 single-family contractors that take out permits annually and the number was smaller concerning commercial contractors.  But when talking about the different trades and remodelers, there are so many more individuals.  The way this was written, a remodeler was going to have to have the same experience and testing qualifications in the future, as someone who would construct a single family home which would impact those individuals.  This would cause some problems, but the benefits were going to outweigh the problems significantly. 

He said he was a Johnson County licensed contractor since the summer of 2003 and he championed their program.  His experience with their program was easy to facilitate getting into that program if a person had the qualifications.  He said in his case a former building inspector wrote a letter of recommendation stating his qualifications and that he had the educational requirements.  Since the summer of 2003 he had taken 32 hours of continuing education.  He said he had profited from the education experience in Johnson County. 

The grandfather clause was utilized in Johnson County.  He said this idea might or might not add value to the program.  Some individuals were not good test takers and this would adversely affect some individuals who had good reputations in the industry. 

The insurance requirement was of paramount importance.  This insured that someone was not going to be economically affected by the actions of another.  Currently there were several people that did not have workers compensation insurance particularly in the smaller arena.  He said insurance was very important because when people were allowed to do work that had life safety consequences or had enough element of danger that the workers could be hurt, the average homeowner probably was not aware that if their contractor did not have insurance the homeowner could be liable for any accident and injury that occurred on their job.

He said if someone were to apply for a particular license today, such as a Class E residential and that person wanted to upgrade their license to a Class B that would allow that person to build  a below three story building.

He said the way this ordinance was written required a person to have two years of experience and then they would take a test.  He said he asked Torres when that two year experience would come into play.  He said Torres stated after a person received his Class C license.  He said if he had 20 years of residential experience building one and two family homes and had not regularly built structures over that, that he would need to spend two more years building residential family homes before he could take the test to move up a notch.   He said when talking about someone wanted to increase the scope of their license if they already had the experience prior to the licensing and was verifiable to their initial license that they simply be allowed to take a test.

  Vice Mayor Highberger had a concern about the smaller operators such as the remodelers.  He asked Durflinger his suggestion on changing the ordinance to minimize the effect.

            Durflinger said he was not suggesting changing the ordinance provided they were allowed to have the grandfather provision retained. 

He said the development of the International Codes had been taking place over a decade and the whole reason was the code system was a tower of babble.  There were so many different codes.  He asked what was more important, having a jurisdictional code or having one code that was understandable and uniform that they could operate under because confusion was inefficient.  He said therefore, the IRC and IBC were developed to amend this problem.  The IRC allowed for contractors in the 1 and 2 family construction industry to carry a book that was comprehensive and understandable.  The fact of the matter was that Johnson County and other major municipalities he was aware of had adopted the International Codes to eliminate confusion.  Johnson County had a great program.  He said meeting education requirements for some of those specialty trades could be difficult to meet. 

Bryan Wyatt, member of the Mechanical Code Board of Appeals, requested staying with the Uniform Mechanical Code.  He said the proposal would require their trade to attend eight hours schooling in Johnson County for the International Codes. 

He said he had spoken to a person from the International Association of Plumbing and Mechanical Codes (IAPMO) and that person was willing to have their trade schooling in Lawrence. 

He requested to be excluded from the draft regulations because it did not apply to areas in their trade. 

He said that their Mechanical Board did not have any input in that proposal. 

He said there had been misinformation about the Uniform Code no longer existing because the Uniform Plumbing and Mechanical Codes would be around for some time.

Vice Mayor Highberger asked if Wyatt had a chance to talk to his board members.

Wyatt said this was not discussed, but he did talk with several members on the Board and was speaking on their collective behalf, but not as a Board.

Vice Mayor Highberger asked if the members of the Mechanical Board were aware that this proposal had been in the works for sometime and included Mechanical Contractors.

Wyatt said no, he said they received a letter when the rest of the public was informed, but they did not take a look at it because it did not seem to apply to their trade.

Commissioner Schauner asked what the annual licensing charge was.

Wyatt said a renewal fee was $50.00.

Commissioner Schauner asked Wyatt if their trade was required to attend an annual educational program.

Wyatt said the City did not require their trade to attend an annual education program through licensing.  He said anyone in the mechanical trade would need to stay up-to-date because the technology was changing.      

Mayor Rundle said when there was a technological change he asked if there was a certification process.

Wyatt said yes, before he could sell that equipment, he would need to attend an all day seminar to be certified to sell that piece of equipment.

Kenny Breithaupt, a plumber in Lawrence since 1967, said at that time there was a required 5 year apprentice program, but now it was 3 year requirement.  In 1981, he received his master plumbing license and went into business.

He said at the present time, he had 4 employees complete a training code review in Johnson County for the Uniform Plumbing Code and also block tested in Johnson County for the Uniform Plumbing Code.  He said the classes his employees attended did cover the International Plumbing Code.  As mentioned last week, training could be held in Lawrence.     

He said as far as insurance, the City required that he be bonded which protected his customer.  He said he was a member of the Plumbing Board and they had very little input and just until recently they had not received any information on that proposal.  He said he wished the Plumbing Board would have been contacted for their input and he wanted to make it clear that their board had not voted on this issue.        

Mayor Rundle said that Breithaupt showed the City Commission some statistics in relative use of the International Code in the Greater Kansas City area versus the Uniform Codes.

Breithaupt said his employees informed him that they had studied both codes and were told to use the Uniform Plumbing Code because it would pass anything that was required by the International Code.  Likewise, if his employees went into an area and use the International Code and they find out later that it was the Uniform Plumbing Code it would likely not pass inspections.

As far as continuing education, they were not required to attend plumbing classes.  He said for those reasons he asked that plumbers be excluded from those classes.  He said if a new product came out generally the representative from the manufacturer would come out and give a class on that product.

Peach Madl, Lawrence, supported the Lawrence Homebuilders Association request.  She said being a building owner she believed they should have the same exemption as a person building a home in regards to building 2 homes in a 5 year period.  She said in the past 15 years they had done most of their work other than electrical, plumbing, and architectural.  

Reynolds said he was concerned about one of the previous speakers concerning education.  He said he had been a licensed contactor in Johnson County since its inception and there were entire sections on the plumbing, electrical, and HVAC as well as structural and code administration in a number of different sections.  If a person was not taking classes within their own expertise, that would be their responsibility and should not be taken out on the program. 

Mayor Rundle said it sounded that that person was simply saying that educational training was not required.

Reynolds said it was a personal responsibility.   If a person was a plumber and that person was trying to get educational requirements for their particular area, why would a person take a class on deck building.  He said a person could always learn something even though that person might think he knew that topic.

Commissioner Schauner said when looking at the contractor insurance section 5-1206, he asked Torres if there was a difference between a commercial general liability insurance policy and general liability insurance.

Torres said they were the same type of coverage.  That whole section came from Jennifer Harvey, Risk Manager and Frank Reeb, Administrative Service Director. 

Commissioner Schauner said if staff received notice that a certificate holder’s insurance had lapsed, 10 days prior to the cancellation or changing coverage, he asked what Torres’ office would do upon receipt of that information.

Torres said staff would notify that contractor that they had received notice from their insurance company that their insurance was cancelled.

Commissioner Schauner asked what would happen if the 10 days came and went and staff had not heard from the contractor.

Torres said if the 10 days lapsed and staff had not received a new insurance carrier for that contractor and that contractor had an active permit where they were working, staff would stop that job.

Commissioner Schauner asked how quickly would that stop work order be put into effect.

Torres said staff could be sent out immediately.

Vice Mayor Highberger asked if there was anyone in the area that was working on their own commercial building.

Torres said no.  He said that would seem to circumvent the intent of the contractor licensing ordinance.

Mayor Rundle said one of the differences he had seen between Johnson County and Lawrence’s proposal was in section 5-1218.  He said Lawrence’s draft said that a designated qualifying party would satisfy the requirements of this chapter and the Johnson County ordinance was more specific and cited what would correspond to the City’s proposal in section 5-1216 and 5-1217.  He said it seemed that the proposal should have more clarity.  He asked Torres why the more general language was chosen.

Torres said staff’s intent was to make the proposal more specific and not more general.  He said staff came up with the term of “qualifying party” by looking at other contractor licensing programs because staff wanted to ensure that definition was included and understood in the proposal.

Mayor Rundle said what was more general was the part that read “The designated qualifying party shall satisfy the requirements in this Chapter.”  He said the Johnson County ordinance cited those key words.

Torres said staff could make that change in the proposal.  The intent was that it was the qualifying party that they were holding to ensure they were meeting all of the requirements of that chapter, not just a specific section.

Commissioner Schauner said he thought Durflinger made a good point about the years of experience issue.  He asked if a person would need the requisite years of experience as a license holder “C” after the initial licensing at that level in order to qualify with test to move to a “B.”

Torres said correct.  He said that was a new provision that was included in the proposal based on a comment from the second public meeting and not locking contractors into a specific class type.

Commissioner Schauner said he wondered what the difficulty would be in giving credit for provable, verifiable credit for prior experience at a Class C license level before the license was granted as meeting half of that condition to move up to a Class B.  He said it did seem counterintuitive that they would need an additional two years or four years of experience as a license holder at level C or B before they could move up. 

Torres said Durflinger’s situation was unique.  He said it was possible that the draft could be tweaked or included a provision in the application to consider additional experience.

He said staff’s plan was once this proposal was implemented, staff would develop an affidavit for the contractors to provide information on their experience.  He said based on the affidavit of experience that the contractors would provide, it could be determined if the contractor met the requirements of the specific class type.  He said staff had not talked about that type of issue, but they could work something into this or something into the application process to consider that experience.  He said staff could set up some type of table for a guide.  He said it was fair that if Durflinger had 20 years of experience and he only needed 4 years of experience but he could not move on to the next level because the proposal said he could not, it would make sense to have some type of provision.

Commissioner Dunfield said that idea was worth looking at.  He said it struck him that it was not likely that it would come up very often because the question would be if the contractor had that level of experience behind him, why would that contractor not have chosen to go for the Class B license in the first place rather than getting the class C license and deciding in the next year to move up to the Class B license.

Vice Mayor Highberger asked Torres if he could comment on what earlier speakers mentioned about not having adequate time to review for the trade boards.

Torres said he respectfully disagreed with some of the comments from two of the board members.  He said staff sent out over 750 pieces of mail to all contractors on their mailing list in December.  He said their first public meeting was January 31^st.  He said 3 boards met in January and had comments and approved minutes.  This information also has been available on the City’s website for sometime.   He said he sent the Plumbing Board minutes to the City Manager’s office with comments to this particular draft ordinance. 

He said the Mechanical Board did not meet in January, but they had two scheduled staff initiated meetings in February and they were not able to obtain a quorum at either session.  He said they had not met as a board to comment on this issue.         

Mayor Rundle asked Torres if he saw the difference in commenting on the proposal as it was being drafted and having input and creating a draft compared to being asked to comment on the proposal after it had been drafted.

Torres said he saw the difference.

Mayor Rundle said he agreed that there was an uneven track between the homebuilders and the other trades.  He said it seemed that the home builders were catching up in licensing and as this was worked out there was a good system already in place.  He said they were not really learning new codes because those codes were already in place and those codes were already being used.  He felt some responsiveness to that and asked the Boards to take a serious look at this and report back to the City Commission.  He would like to see the Commission look at this issue in more depth before they proceed. 

He said staff should see if there was any conflict between the Uniform Code and the Contractor Code to make sure they were compatible.

Commissioner Hack said this issue had been a work in progress and staff had addressed concerns.  She said she liked the comments about bringing the contractors up to date with licensing and educational requirements.  She said there had been a ton of work up to this point and it seemed that the City Commission’s action was to move forward with the ordinances.  The educational component, the grandfather clause, workmen’s compensation, general liability, and the fee based on the work, she could see no problems with at this point. 

The fact that the trade boards were not ecstatic about this idea did not mean that they had not had the chance to a least comment.  She suggested moving forward with the draft ordinance.

Commissioner Dunfield said he did not want the Commission to be forcing the trades into a situation that they did not feel they had sufficient input in.  He suggested moving forward with the draft of the ordinance except in the area of the Class D License.   He said he had not heard anything that he was anxious to change.   He said perhaps they could move ahead with the whole ordinance on the one hand, but with the class D issues sort of taken aside and discussed separately with the boards because there might be a different timing track.  He said it might take more time for that portion of it to come back because of the difficulties. 

It was a legitimate question whether the license should be the same dollar amount if the educational component was different.   The blended code situation did raise some legitimate issues that needed to be resolved.  He suggested going ahead with the ordinance, pull the class D section out and work on that section separately, but work on the preparation of the rest of the ordinance.

Commissioner Hack said that made sense because it protected that class D situation.

Commissioner Schauner said obviously the ultimate beneficiary of this ordinance would be the consuming public in whatever form it ultimately survived.  He said he was concerned because work prior to the issuance of a first license should be given full credit toward the ability to move up from a Class C to a Class B and from a Class B to a Class A. 

He said he was also concerned that the trade licensing piece seemed to be unnecessary.  He said there was already a system for licensing the trade specialties and it seemed to create essentially a new track for dealing with those individuals did not seem necessary. 

He said he could support the rest of the ordinance if the contractors themselves were happy with it. 

He said the Class D licenses were something that he would have a great deal of difficulty supporting, but he thought they should move forward with the rest of the draft ordinance.

Mayor Rundle said the reason he asked the question about relative use of the International Codes and the Uniform Codes in the Greater Kansas City area was because that person said that 400,000 people were currently under the International Code, and there were a million in the greater Kansas City area that were still under the Uniform Code and so he thought those problems were not unique to Lawrence.   Other communities were still getting along and it was not going to be hard to keep on doing business.  

He assumed staff could come back with some kind of plan to a address the subset of issues that Commissioner Dunfield had talked about

David Corliss, Assistant City Manager/Legal Services Director, suggested that staff could have a draft to the City Commission on March 29^th.  He said it might not be on the agenda for 1^st Reading, but as a draft.  He said staff would need to make sure the ordinance still flowed with the removal of the Class D regulations.

Vice Mayor Highberger asked if the Class D licensing would proceed on a separate track.

Corliss said the Class D licensing would not be in the draft ordinance. 

Commissioner Schauner suggested having some conversations with landlords and commercial owners because there was a fair amount of work those people did on their own property and he would hate to increase their costs by having to hire contractors.

Corliss said when staff brought the ordinance back, staff could provide additional commentary.  It was important to note that this was not repair and maintenance which was usually what commercial building owners were focused on, but the construction of those buildings.       

Commissioner Schauner said this would be any work that required issuance of a permit.

Corliss said correct

Moved by Dunfield, seconded by Rundle, to direct staff to prepare an appropriate ordinance establishing the contractor licensing requirements excluding the Class D licensing provisions which should be removed for additional review.  Motion carried unanimously.           (13)

Moved by Rundle, seconded by Dunfield, to recess for 10 minutes.  Motion carried unanimously.

The City Commission reconvened at 9:00 p.m.

Receive staff report concerning proposed amendments to the smoking prohibition ordinance and the sidewalk dining license requirements.

David Corliss, Assistant City Manager/Legal Services Director, said toward the end of last year Phil Bradley, representing the ART Coalition (Appeal to Reason and Tolerance), and other members of his group came to the City Commission and provided a number of comments in regards to the City’s regulation regarding smoking in public places within the community.  Staff had an opportunity to review that information that Bradley provided and discussed staff’s views with him.  He said also representatives from Hallmark expressed concerns about their smoking break room and the application of the ordinance to that break room. 

He said staff provided to the Commission a memorandum which broke down neatly into four areas which were:

1. Prosecution and enforcement issues;

2. Definition of Outside and Enclosed Places;

3. Sidewalk Dining; and

4. Employee Smoking Break Room Exception.  

Toni Wheeler, Staff Attorney, said the first category concerned enforcement and prosecution issues.  She said Bradley’s group asked what measures could an operator of a business take to respond if a patron violated the law in their establishment.  She said staff’s response included placing “no smoking” signs in appropriate areas, not providing ash trays at bars or tables, advising patrons who were smoking to stop smoking, or to move outdoors, or to an approved area for smoking.  She said if a patron refused that patron should be asked to leave the premises and if the patron did not leave the bar owner or establishment owner could request police assistance.  At this time staff did not believe that any amendments were necessary to the ordinance. 

At a follow up meeting Bradley and members of his group asked if staff’s suggested actions could be placed in an ordinance as an affirmative defense, but staff did not recommend that act should be taken.  If they followed those steps, there should not be smoking at the establishment and citations should not be issued. 

She said staff was concerned that if they provided this as a permanent defense an owner might look the other way while smoking was occurring until an inspector arrived on site and when an inspector was on the premises, they would take those actions and staff would not be able to raise those issues as an affirmative defense and that would not improve enforcement measures. 

She said the ART asked if there were consequences for individuals that were smoking and not just consequences for the businesses. 

She said the current law did provide penalties for an individual smoker who was smoking in an establishment.  At this point, the City had filed complaints against two individuals for violating the smoking ordinance.

One problem that enforcement officers encounter in a licensed premises environment was obtaining information to file a complaint against someone because an individual patron might not give their name and address and therefore, staff would be unable to file a complaint on that person.  Fire/Medical staff did not have the same authority that police officers had to obtain that type of information from individuals.  Also, Fire/Medical staff were not trained or equipped to handle or deal with belligerent and possibly intoxicated patrons. 

She said ART asked whether anyone had been charged with violating the ordinance for smoking in a company owned vehicle, but at this point, no one had been charged.  Staff had not received any specific complaints, but if staff had credible evidence an individual could prosecute or file a complaint.

She said regarding the definition of outside and enclosed places, staff was recommending changes to the ordinance with regard to the definition of an enclosed area.  There was currently a definition in the ordinance, but since it went into effect on July 1, Rich Barr, Fire Marshall, and his staff have been asked to interpret what an enclosed area was.  Some establishments placed awnings on patios or they had partial walls.  She said there needed to be some clarification regarding what an enclosed area was and staff had provided a definition of enclosed space that would hopefully provide greater guidance to the public,

Corliss spoke on the sidewalk dining issue.  He said sidewalk dining was a separate issue from smoking ordinance, but was viewed related to concerns that typically downtown establishments had.  Sidewalk dining laws were enacted in the mid 1990’s and at that time, the City Commission established a food sales requirement of 70%.  He asked the Commission to keep in mind that there were a number of different issues as far as licensed premises were concerned.  He said for new licensed premises in the zoning ordinance there was a different food sales requirement which was a 55% food sales requirement.  He said for use of a public sidewalk there was a 70% food sales requirement.  The rationale at that time was that staff wanted to make sure that was a dining area.  He said under general legislative powers the Commission could amend the sidewalk dining provisions to reflect a desire to allow for certain establishments to get a sidewalk dining license with the idea that would provide them with a non enclosed area where smoking could occur.  Right now, a number of drinking establishments would qualify under the existing laws for a sidewalk dining area, but some establishments would not.  If the Commission wanted to pursue this option, the Commission could reduce the food sales requirement and it was staff’s suggestion that it would be for licensed premises that were in existence at the time of the smoking ban.  The policy rationale behind that was that new establishments in the downtown area had to meet the 55% food sales requirement, and then that establishment could plan whether or not they wanted to have an outdoor patio or something else in their business plans.  Therefore, it made sense to apply that only to establishments that were impacted at the time of the enactment of the ordinance. 

One of the other concerns that staff had was that was that there needed to be some type of criteria.  Staff believed that an exception to the food sales requirement should be focused on establishments that were in existence at the time of the effectiveness of the ban and could not feasibly provide an outside smoking area.  He said the City Commission could look at that idea on a case by case basis as to whether or not some alternative to the sidewalk dining could be available for that establishment.  In other words, would they be able to a construct an outdoor patio in the back of the establishment or some place else.  He said that might be the preference as opposed to allowing the sidewalk area to be used essentially for a smoking patio which would primarily be Massachusetts Street, the main area.  Staff thought it made sense to a limit those outdoor patios by some type of test as to whether or not they could otherwise have an outdoor patio elsewhere other than along the sidewalk.  He said staff had provided the Commission with information in regards to other establishments that qualify in the downtown area. 

Commissioner Dunfield asked if all of those sidewalk dining provisions only applied within the C-3 downtown district.

Corliss said yes, it was primarily the downtown area.  He said staff had seen a number of site plan alterations for business around the community to respond to the smoking ban.  Those businesses had sought to either enlarge their outdoor patio area or create one.  That usually did not involve public property, it was not a sidewalk dining area.  Those businesses were just expanding the use of the existing privately owned facility. 

Corliss said the final issue was a concern that was brought to staff from Hallmark.  He said Hallmark installed in 1997 break rooms for smoking employees that were fully enclosed and accessible to employees.  The rooms were maintained with a negative air pressure, and all of the exhaust from that room was discharged outdoors there was no internal circulation of the smoking within those break rooms. 

Hallmark staff indicated to City staff that they had a continuing concern about not being able to use those enclosed break rooms because of safety of their employees and the integrity of the building premises, and their ability essentially to know where their employees were or where any guest or uninvited people would be. So they had a continuing concern about allowing employees to go outside. 

He said he and Toni Wheeler visited that facility, but when the Commission heard Hallmark’s interest in an exemption for their pre-existing break room, the Commission directed staff to take a look at whether or not it would be appropriate to enact an exception that might be able to cover those types of situations where a business had a break room that was fully accessible to employees and where the public was not allowed access.  He said a nonsmoker was under no circumstances required to enter the room for any purposes, and the cigarette smoke was exhausted through a separate system through the negative air pressure.  There was no way smoke could filter out into the manufacturing part of the plant because it was exhausted through appropriate fan systems.  He asked the Commission to keep in mind that staff understood that one of the Commissioner’s intent was to protect nonsmoking employees in the workplace environment. 

He said staff thought it was genuine to the intent of the ordinance to allow for a specific exception that recognized break rooms that met fairly strenuous criteria that and was in place at the time of the smoking ban.  It made sense in staff’s mind to make the exception apply to situations that existed before July 1 because a new business would obviously be able to construct an outdoor facility that would meet the safety concerns 

He said the first staff memorandum outlined criteria under which that type of break room would be allowed.  The area would need to be enclosed with solid and impermeable walls, and was restricted to employees and vendors of the facility. He said there was no public access to the break room and it maintained the negative air pressure meaning that more air was exhausted from the room than was directly supplied by the HVAC system, and other provisions.  He said under no circumstances did the employer require employees or vendors to enter the smoking break room when it was occupied by smokers and there was appropriate signage.  He said they had similar nonsmoking break facilities that were in existence at the time the smoking ban came into effect.  He said the room was registered with the fire prevention division, so that they knew that was an appropriate qualifying exempt smoking break room. 

He said Bradley and other members of ART wanted to expand the exception in ways that would allow for patrons and customers to have smoking rooms, and it was staff’s belief that was not the intent of the ordinance as far as protecting employee safety.  He said staff thought it was likely that waiters and waitress would probably need to go into those rooms and serve that clientele, and that was not the intent of the ordinance. The intent of the ordinance was to segregate smoking to make sure that employees were not exposed to smoke. 

Mayor Rundle called for public comment.

Scott Hazelitt, member of the Smoking Task Force and member of Clean Air Lawrence, said that Clean Air Lawrence supported the amendments as proposed by staff, specifically the definitions of the smoking break room exemption.  He said they were going to avoid the sidewalk dining and enforcement issues and leave that it up to the Commission to work through those issues.

Andrew Arnone, Lawrence, said when talking about sidewalk dining, it was confusing because it seemed that issue was brought on by bar owners.  He asked if it would be a smoking patio or an outdoor drinking.  Another point that he needed clarified was whether the Commission had considered how many businesses might have increased sales because of the smoking ban.  He said they had heard testimony that businesses might have increased sales because of the smoking ban and we heard testimony last time about many residents who were now going to places that they would not have otherwise gone to because of the smoking ban.  

Finally, he asked about occupancy rules for those patios.  He said Rick’s Place created last summer a curtain for a smoking patio.  He said he had seen it where it was overflowed and technically they were not supposed to be drinking out there right now anyway.  He wondered if occupancy rules would be enforced. 

He said when looking at restaurants with customers that were seated by staff as a group, it was a lot different than having 20, 30 or 40 bar patrons in the same area standing shoulder to shoulder carrying on until 2 a.m. 

He suggested that the Commission consider the noise implications of essentially allowing outdoor bars.  He said Section 5-114 in the city code stated how the City might require additional conditions to reduce noise, littering, reducing the hours etc.

He said those curtains that were near those outdoor dining areas were not very effective in containing patrons especially because most of areas could be accessed from the sidewalk versus having to go into the front door and through a door inside the establishment to get into those curtained areas.  He said where he lived he often saw people accessing that area from the street.  He said he did not think those curtains were good at keeping patrons contained, and he wondered how that affected another section of the code which talked about prohibiting removal of alcohol from the premises and were they now talking about the premises being outside in this curtained areas. 

Corliss said as Commissioner Dunfield mentioned, sidewalk dining was essentially a C-3 zoning downtown.  He said for sidewalk dining there were a number of issues that needed to be taken care of in order for it to be allowed.  The property had to be site planned, and during the site planning process occupancy limits could be established and also a requirement that spoke to the number of tables and chairs and types of issues. 

He said he did not know if he would label that as a smoking patio because smoking was allowed outside of enclosed places.  Individuals could smoke or they could choose not to smoke. 

If a person wanted to drink alcoholic beverages the City would enact an ordinance to allow for the consumption of alcoholic beverages on essentially public property which was the sidewalk and that was exercised when an establishment applied for a sidewalk dinning license to allow for alcoholic beverages to be consumed.  He said smoking was allowed right now in sidewalk dining as long as they smoked outside in that enclosed area. 

The comment about Rick’s Place was a site plan issue and was on private property and it was not the issue of the City allowing the rental of public sidewalk.  It was whether or not the site planning requirements were being followed by allowing for a part of the building that was outside to be used as a patio area.  There were restrictions as to where someone could consume alcohol and if part of the area that was outside of the building was site planned for that use, alcohol consumption was allowed.  If a person took an alcoholic drink off the premises, in that case it would be a violation of a City ordinance.

Commissioner Dunfield said in the case of Rick’s Place, the Commission specifically excluded outdoor drinking as part of that site plan, and there was nothing the Commission was considering tonight that would change that.

Vice Mayor Highberger asked if the sidewalk seating changes the Commission was considering was only to the C-3 zoning district.

Corliss said correct.

Commissioner Schauner asked if they needed an ordinance that they had not yet discussed in order to permit downtown sidewalk smoking to also permit rental of the sidewalk areas to permit consumption of alcohol if they did not meet the food requirement.

Corliss said yes.  He said the Commission would need to enact changes to the sidewalk dining laws to allow for establishments that did not meet the food sales requirement to obtain a sidewalk dining license.  Those establishments would need to get the property site planned and if there was any historical view, that establishment would need to pass that Historic Resources Commission review as well.

Commissioner Schauner said one possible result if both ordinances passed would be to have a sidewalk area where both smoking and drinking could take place and no food consumed.

Corliss said that was correct.  He said the only distinction between today and that possibility in the future was that right now those establishments needed to have gross sales of 70% food sales or greater.  It was possible right now to be in a sidewalk dining area smoking and drinking with no food, but the establishment would need to have 70% food sales or greater.

Phillip Bradley, representing the ART Coalition, said he hoped the Commission had taken the opportunity to read the original city memorandum, their comments, and City staff’s. 

He spoke on the prosecution and enforcement issues.  He said the coalition was interested in their original December 14^th request in some sort of safe harbor provision, and the Commission expressed an interest in trying to find a way for a safe harbor provision for us.  Basically meaning that if a business owner followed those practices, not that they could not be prosecuted if they did not follow those practices, but that if they followed a certain set of practices, that they were protected and that was what they were still asking for.  He said the coalition was not trying to ask for a situation where if they didn’t follow the practices, they were exempt from prosecution.  He said they were asking for a list of things they could do.  He said although he was somewhat reassured by the cities language that they should not need to worry, he would be more reassured if they said they would not have to worry if they followed those practices.  It was not just whether or not a person was smoking when the city inspector was there or not, as they had already found out that was on a complaint driven basis and it was more than just the city inspector.  Many of those were complaints called in, so if they were not following those practices at other times, the City was going to find out about it, so he did not think that was a big problem. 

Their second point on an eyewitness or asking someone to right the situation at the time was not addressed at those complaints that were called into the City by a third party.  Their point was that the City’s comments were that they needed a credible witness to prosecute whether it was to the patron who was smoking or to the establishment.  He said they simply responded that they thought that all City employees were credible witnesses and if the City employee was on the premises at the time and witnessed that action that they had the means then to prosecute those people; they had a credible witness which was needed.  He said the coalition would like the City employee to write that up at the time and if they felt threatened, to call for police the same as they would if they were seeing any other violation and they felt threatened or unable to handle it themselves.  He thought that was reasonable and allowed all those parties concerned to then deal with it at that time and not at a latter date when people who were there were not there anymore and if the City has trouble getting that information, it could be imagined the trouble of establishment owners in getting the information of who it was and who else was there when that owner did not even know about the violation until the next day.  He said if it was a City employee who was making this complaint, at that time that they just notify them at the time and that seemed reasonable.

Bradley said the coalition had no problem with the definition and were appreciative of the definition of the outside and enclosed spaces.  As far as the sidewalk dining, the Commission had heard clarification on that and the coalition was also appreciative of any consideration along those lines and hoped that it would be offered to all those that were an establishment at the time of the ordinance going into effect. 

He said they were questionable of what cost had to do with that as in the original city ordinance, considering costs.  He thought those decisions were made by the business owner on how much it would cost. 

Another concern was whether or not a place had the ability to have a patio in another location was somewhat subjective.  

He said the coalition had asked for a non-staffed room, a non-employee room.  He said they wanted to state unequivocally, at this time, that they hoped the Commission would grant Hallmark this exception and allow them to use that facility that they had spent a lot of time and effort establishing. 

He said if it was true that a place could be established inside a business whatever the conditions might be such as, negative air pressure, no employees required, nothing happening there that could not happen somewhere else, or an additional facility, that that be allowed for other businesses as well.  He said whether it cost a lot of money or hiring a newly certified licensed contractor to build that facility was a decision that should be made by the business owner by getting a permit by the City.

Peach Madl, owner of the Sandbar, said anything the Commission could do to help them accommodate their guests would be wonderful.

Rick Renfro, Johnny’s Tavern, said this ordinance was passed last July 1^st and public comment was heard from most of the Commissioners on how this ordinance was working.   He said the meeting ran very professional with City staff and members of the public.  He concurred with Bradley in exempting Hallmark from this ordinance. 

He asked the City Commission to think about being fair.  He said he was making sure that people did not smoke in his establishment, but when he saw employee driven trucks being smoked in, it made him upset  He said when he found out about the exemption for tobacco shops, that they could smoke, he was totally confused because he thought it was all about the employees’ health.  He said he asked City staff why that type of shop was exempt and staff’s response was that those shops sold tobacco and it was common sense that people that went into that type of shop were around cigarette smoke.  He said he did not understand the logic behind that their economic impact for cigarettes was ok.  He said he wanted this to be fair across the board, but he wanted everyone else to follow those laws also.

Brad Ziegler, Lawrence, said he wanted to address one issue of those amendments.  He said the Commission was determining the feasibility that if a business could not feasibly build their own patio, then that business would be allowed to apply for sidewalk dining.  He asked the Commission how they would determine what was feasible for one business and what was not feasible for another.  I

He said he had spent a large amount of money to construct a patio behind Louise’s, and he would love to have a smoking patio out front.  A number of customers stand out front to see what was going on and did not want to go out back where they were by themselves.

He said there were nineteen drinking establishments on Massachusetts and the way the ordinance was written now, they were setting aside three licenses which were The Harbor Lights, Replay Lounge, and Louise’s.  He said this was Louise’s 50^th Anniversary in business in Lawrence and Harbor Lights had been since the mid 1930’s.

He said every year he seemed to be fighting some type battle.  He suggested making this a friendly environment to do business in.  He said he was not for or against sidewalk dining, but to single out three businesses when there were nineteen businesses on the street was crazy the way it was written.   If they were going to come with ordinances, he suggested writing them well and make sure those ordinances were on a level playing field. 

He said if the City was going to become a landlord, would the City be subject to the same legal guidelines that someone from the private sector was.  He said let’s make it fair for everybody and not because a business had a patio out back, that business did not deserve to have sidewalk dining out front.  He said if the Commission voted for or against this ordinance, he suggested making it fair and that everyone should have the same opportunity.

Charles Pomeroy, representing Lake View Manor, said he was making a request that the City make an exemption to the current City smoking ordinance to allow smoking by residents within a designated smoking area within this facility.  He said this request slightly dovetailed off the request from Hallmark Cards, but he thought there were other issues that needed to be considered in terms of residents that were living in a nursing home or possibly even a long term care facility. 

He pointed out that there was already a fair amount of legislation concerning the smoking in nursing homes by the state and the Federal government.  A Kansas Administrative Regulation talked in general about providing for smoking in a nursing home and it authorized that they have certain rules and regulations and it was recognized by the State that there was allowed smoking in fact it even states within that ordinance that if smoking had already been allowed, and it was elective, nursing home by nursing home, to allow it or not allow it.  Once it was allowed they were not allowed to discontinue it for the residents already living there.  He said his point was that the state recognized that this was an important issue for people who were confined because of their position in life.  He said it was a quality of life issue and the state recognized that.  Also, Kansas Administrative Regulation 28-39-162C took into consideration, the environmental requirements for a large variety of issues that had to take place in a nursing home and it took into consideration much like the Hallmark issue.  That regulation talked about separate ventilation going outside so it was not interchanged with the environment within the nursing home and negative air pressure.  He said those issues were already taken care of for nursing homes regulated by the state.

He said there was a manual that state surveyors follow and they recognized the importance of people in the position who were living in those facilities that they had some decisions on how to lead their lives.  Once again, this was their home.  He was not sure that nursing homes should not already be excluded under the current ordinance.  He said there was an exemption for residents in homes and this was their home and for that reason alone with a few qualifications they should be exempt under current law.  He said that was not stated outright, but he would like to see that it did.

He said the manual stated that each facility must create an environment that was respectful to the right of each resident to exercise his or her autonomy regarding what the resident considered to be important facets of his or her life.  He said there were residents that were living at Lake View Manor and that were obviously limited in the different choices they have in life and to some of those residents, smoking was a largely important thing and that quality of life choice needed to be looked at and preserved.  He said they were told that they might or might not have to take away the smoking room. 

The smoking was not a common area or an area that any other resident had to go to and it was not even there for the employees.  He said that smoking room was there for the residents who were lifetime smokers and they were now confined or involved in a situation where they did not have many choices.  He said for the City to change someone’s lifestyle would be a terrible hardship. 

Mayor Rundle suggested that this item be placed on a separate agenda for discussion.

Judy Keller, Lawrence, said she would like to reiterate Clean Air Lawrence’s support for the staff report and she thanked the City Commission for investigating all those issues. She said the Commission had heard from folks that were still having trouble with the new ordinance, but she also understood that the Commission had heard from a majority of residents that supported the existing ban.

Commissioner Dunfield asked Corliss to respond to the issue of the nursing home. 

Corliss said staff became aware of that issue this past week.  He said he did have the opportunity to discuss that issue with Pomeroy.  He said it was staff’s interpretation of the ordinance that it did prohibit smoking in nursing homes.  He said in the definition 9-803 where there was a prohibition of enclosed public place included lobbies, hallway, and other common areas in apartment buildings and it did mention nursing homes specifically.  He said he could not say that was an item that was extensively reviewed by staff and he did not know if the Task Force discussed that item.  He suggested additional research to provide the Commission with additional information.  He also suggested that staff have discussions with Pomeroy to find out the applicable state regulations.  He said state regulations regulated how smoking was allowed within nursing homes, but he did not believe those laws pre-empted the City’s ability to have a more stringent law that was a choice for the City Commission to decide. 

Mayor Rundle said Arnone had some questions on the City’s assessments of sales increasing and decreasing, but he thought the majority of Arnone questions were addressed. 

Corliss said he did not have any additional comments.  He said concerning Bradley’s comment about safe harboring, he asked the Commission to keep in mind that the City would prosecute and he thought that staff would prosecute in a way that was professional and appropriate.  He said he was not aware of any problems that would necessitate additional language in the ordinance that Bradley was suggesting. 

Commissioner Dunfield said also related to Bradley’s comment about a credible witness, he asked Corliss if there was any type of clarification to the question of the credible witness as it related to City employees.

Corliss said he thought the City had a fairly effective enforcement protocol.  He said they were unable to catch all incidents or in many cases catch the smoker that might have been smoking inappropriately and when staff was there after the complaint to talk to the property owner to see whether or not they were enforcing ordinances as staff believed it should be enforced and as the law provided it to be enforced.  Corliss said they were prosecuting cases and staff thought they were prosecuting in an appropriate manner.  He said the credible witness issue he was not sure how that issue tied in with the discussion.

Commissioner Dunfield said what he thought Bradley was asking was if it was a City inspector who observed the action, he asked if that City inspector, at that time, would report that to the business owner.

Corliss said the protocol was for the City inspector to talk to the business owner and have the business owner who was in charge of the premises direct the patron to stop smoking.

Mayor Rundle asked if the public safety crews ever gave citations in other situations such as when they were out on an inspection of a fraternity or sorority.

Corliss said they gave out citations for over occupancy.  They had the authority, but for all other situations they usually write a report and refer it to the appropriate office to issue a citation.

Commissioner Schauner said the question of whether a witness was credible or not was always a fact question for the trier of fact.  He said to try to write some language into the ordinance about that struck him as an impossible task.

Corliss said staff could write that into a mandatory provision in an ordinance or policy that would say that if a City official or inspector saw an infraction that they would automatically need to issue a citation.

Commissioner Dunfield said he disagreed.

Commissioner Hack asked if Corliss could respond to Ziegler’s question about the feasibility issue.

Corliss said that was staff’s recommendation, but it was up to the Commission on how to proceed with that idea.  He said it was reflecting staff’s opinion that the sidewalk dining areas in downtown was a delicate subject on how many sidewalk dining areas the Commission wanted to allow.  He said from a general staff viewpoint sidewalk dining works well and it added vibrancy to the downtown area and was something the City wanted to encourage. 

He said there were questions about the establishments that might be less of a dining issue and more of a drinking and smoking nature.  He suggested that the Commission, when looking at a sidewalk dining request, if that business had an alternative to being out on the public sidewalk and if the business did not have a reasonable alternative or not feasible for them to build something else, then it might be appropriate to allow for the use of the sidewalk.  He said if the business did have another alternative the Commission might not want to allow that because it was not keeping with the traditional use of the sidewalk for dining purposes. 

Mayor Rundle said the complaint was that not all establishments were able to accommodate their patrons outdoors.  As far as the criteria, he did not want to get into feasibility because it was more of a physical ability to do it.  If there was a building that had multiple tenants and the drinking establishment could not get access to the outdoors if the structure simply did not have the space, the only physical alternative was the sidewalk, then that would be available to those establishments as long as that could be written in a defensible way.

He said people had seemed to line up on that proposal.  He said he had received emails against that idea.  He said he brought those concerns to staff to ask staff to place this on an agenda.  He said some of those involved in the original restrictions, the concerns they had at that time were litter, noise, and throwing bottles.  He said in one case there was experience because Free State Brewery did not have the City’s sidewalk, but they did have an outdoor area right on the sidewalk and there had been no complaints or problems.

He said if people did perceive problems with sidewalk dining, he asked if the license was an annual event and was there some provision for revisiting that particular license like a use permitted upon review.

Corliss said correct.  He said it was similar to the use permitted upon review in that the Commission could initiate proceedings to revoke that license.

Mayor Rundle said, on the other hand, there were people talking about expanding the use of the sidewalk more liberally.  He said that was a matter for the larger downtown business community and the patrons to discuss in the future.

Commissioner Schauner said ironically he was leaning toward some sidewalk use for smoking until he heard Ziegler’s comments.  He said after hearing all the conversation, he could not support the sidewalk use.   He said what the Commission would create was a slippery slope that he had discussed earlier.  He said the fist step was outdoor sidewalk use for smoking for those businesses that did not otherwise qualify for sidewalk dining license.  He said the second step was that they needed alcohol to go with that and the third step was that everyone downtown would want sidewalk dining.   He said it would put this Commission and future Commission’s in a position of almost being unable to say “no” to any request for using the sidewalk for drinking and smoking purposes and that changed the character of downtown in a very significant way.

He said he was in San Diego no long ago and the street had a number of bars that obviously did not serve food, but had a fenced in sidewalk area full of people smoking and drinking.  He said frankly it was a place he did not want to go back to, not just that establishment, but the entire streetscape which struck him as an unappealing sort of place.  He said he knew there was a different downtown at different times of the day, but if this ordinance passed, everyone would regret the way this would ultimately produce a streetscape in downtown Lawrence.  He said it was not a good idea.

He said the smoking room at Hallmark standing on its own, he had no problem with.  The next step was, someone wanting to say that they had a negative air room also, why shouldn’t their establishment be exempt.  He said the fewer exceptions they had to this rule, the easier it would be to enforce both from the City Commission perspective and from a Fire Marshall perspective.

Commissioner Dunfield said staff had done an excellent job in defining the terms so that they were not sliding on that slippery slope.  He said they were not writing an amendment just for Hallmark.  It might end up applying to only Hallmark because they were talking about establishments that had those rooms already in place and that was what the amendment was directed toward.

He said the proposals that staff had made concerning amendments to the smoking ordinance, he would accept in the form that staff had given the City Commission.  The sidewalk dining was a zoning issue and he was still of two minds about that issue.  Again, staff had done a good job in terms of trying to limit the locations based on feasibility of alternative outdoor smoking areas. He said he thought it was in the Commission’s interest to limit the number of those types of outdoor drinking and smoking areas in the downtown.  He said his support for pursuing that further would go a step further than staff in terms of identifying the feasibility issue. 

He suggested altering the grandfathering of drinking establishment downtown and by his count there were approximately ten grandfathered drinking establishments downtown which actually met the food sales requirements, but which were not required to because they were in existence before the food sales requirement went into effect in 1993.  If they were going to increase the number of outdoor drinking and smoking places he would want to see the Commission at the same time alter that so that those ten establishments were not going to go at some future time and become pure bars and then the Commission would add ten more potential sidewalk drinking establishments to the streetscape.

He said if the Commission was going to pursue that zoning change, he would want to see it as two parts.  He said, yes they might relax the food sales requirement for outdoor dining, but at the same time he would want the Commission to look at eliminating the grandfathering of the no food sale requirement.

Mayor Rundle asked if it would be just for those who had met it.

Commissioner Schauner said it would be those establishments that currently meet the food sales requirement would not be able to convert to a pure bar.

Moved by Rundle, seconded by Dunfield, to extend the meeting until 10:30.  Motion carried unanimously.

Hack said she was moved by Madl’s comments on the Commission giving business owners whatever help they could.  She said her concerns since the first time this issue was discussed was the issue of fairness and fairness did not always mean that everything was equal, it was just that sometimes the very best the Commission could do with competing interests and competing philosophies in what was valued.

She said the C-3 zoning food sales was put into place to prevent downtown Lawrence from becoming a place that the community did not want it to be. 

She said she could not support Fire/Medical staff giving out citations because that was not what they were trained for.  She said she did not want to put staff into that position. 

She appreciated the clarification of what a wall was and she supported the Hallmark exception.

She said she agreed with Commissioner Dunfield’s comments on the outside dining pre-existing businesses.

Vice Mayor Highberger supported staff’s recommendations.  He said there was no intention to prosecute someone who was making a good faith effort to enforce the ordinance.  The mechanism that ART had provided would make the ordinance completely unenforceable.

He said he also agreed with Commissioner Hack in that he did not want to put Fire/Medical staff in a situation of trying to issue a citation to someone who has been drinking in a bar at night. 

He said he did have a concern about the definition of enclosed space.  He said it seemed that the definition of enclosure allowed for a substantial enclosure, but he was not going to make an issue of that.

He said concerning sidewalk dining, he supported experimenting with allowing drinking establishments to have sidewalk seating especially for places like the Red Lyon and Sandbar who did not have any other options.  He said he was only supporting for those places that did not have a feasible alternative. 

He said he shared concerns for having an extensive number of primarily drinking establishments on the sidewalk, but he did not think that was a zoning issue, but a landlord/tenant issue.  He said the City would retain substantial control over those spaces and if there was a problem, then the Commission could address it.

He said he supported the Hallmark exemption.  He said it was a limited occurrence and they had expended substantial amounts of money on that space and it did not affect anyone other than smoking employees.                  

Commissioner Schauner addressed the enclosure percentage.  He said there was one place that probably met the 20% enclosure maximum, but it was for all practical purposes an enclosed space.  He said he thought the 20% enclosure maximum was too low and it needed to be a greater percentage of the total exterior area than 20%.

He said whether it was 5, 6 or 7 places downtown that could have a lease on a sidewalk to permit exclusively smoking drinking was a mistake.  He said that was a sea change in the use of Massachusetts in the C-3 zoning area and it would produce a significantly different appearance of downtown and the Commission would regret it.  He said this did not have anything that was business friendly or unfriendly this had to do with protecting the City’s jewel of their commercial enterprise in this City.  He said its proximity to campus would make this, on Friday and Saturday nights, a place a person would not want to go if they had eight more places that just had places outdoors to smoke and drink.

Mayor Rundle said he would like to send this issue back to staff to try and accommodate what Commissioner Dunfield had suggested in coming up with some provision for converting non-conforming drinking establishments that had been meeting food sales percentage. 

He said the cautions were well taken but there were places where this might work.  He said there were places that did allow outdoor areas.  He said this would be a larger conversation for downtown to have along with other people in the community that were concerned about downtown.

Commissioners Schauner said if a larger conversation was important, then downtown merchants should be part of that conversation.  He said he would like some idea of what impact did merchants downtown believe that sort of change in the streetscape would have.

Commissioner Dunfield said that was a separate issue and not an amendment to the smoking ordinance and it was not going to be decided at this time.  He said it would need to be the subject of considerable research on the part of staff in addition to discussions with the various stakeholders.  He said it was a suggestion of a possible way to make that work which did not provide for the massive change in the character of downtown. 

Mayor Rundle asked if the amendments to the smoking ban ordinance were in a form that could be approved on first reading.

Corliss said no.  He said this issue would need at least two different ordinances.  One ordinance would be an amendment to the smoking ordinance that would include the definition of enclosed area and the exemption for the smoking break room in one ordinance.              

The other ordinance, staff would need to take time to discuss issues concerning sidewalk dining.  He said on the issue of the conversion of the food sales would be a zoning ordinance text amendment that staff could prepare for the Commission to initiate.

Mayor Rundle said it sounded like there should be another public meeting discussing the joint change.  In the meantime, it might be good to get the discussion going among the downtown merchants. 

Commissioner Dunfield said their might be some consternation raised by the suggestion of changing the food sales requirement for some of those establishments.  He said there would be some discussion that would need to take place over a period of time before that issue came back to the Commission.

Mayor Rundle said hopefully more people would be aware of this discussion.

Corliss said staff would bring back amendments to the smoking ordinance regarding enclosed places and smoking break room exception in the form that was provided in staff’s memorandum and then a separate ordinance in a memorandum discussing the sidewalk dining and the food sales requirement.

Moved by Dunfield, seconded by Highberger, to direct staff to prepare an ordinance amending the smoking ordinance to define enclosed area and to add the smoking breakroom exception, those changes in the form as suggested in staff’s memo.  Motion carried unanimously.                                                                                                                                (14)

Moved by Dunfield, seconded by Hack, to prepare a memorandum and draft ordinance related to the issues discussed with sidewalk dining in the downtown C-3 zoning area.   Aye:  Dunfield, Hack, Highberger, and Rundle.  Nay:  Schauner.  Motion carried.           (15)

Vice Mayor Highberger suggested staff research information regarding the nursing homes issue.

Corliss said yes, staff would research that issue. 

PUBLIC COMMENT: None

COMMISSION ITEMS: 

Mayor Rundle said he had sent out an email after the last economic development board meeting.  He said Lynn Parman, Vice President, Economic Development, Chamber of Commerce, mentioned a service that Aquila helped underwrite which was a community housing assessment team of a very intense effort which involved focus groups of various targeted sectors of the community such as financial, government, realtors, developers and builders.  He said obviously there would be some solicitation of participation in the community.  The City Commission would need to consider cost sharing on this issue which needed to be placed on a future agenda along with further discussion on this matter.

Commissioner Dunfield said Commissioner Highberger had volunteered to get together with the County Commissioner to talk about the Southeast Area Plan.  

Consider a motion to recess into executive session to discuss non-elected personnel matters for 10 minutes. The justification for the executive session is to keep personnel matters confidential at this time. The regular meeting will resume in the City Commission meeting room.

            Moved by Schauner, seconded by Hack, to recess into executive session at 10:20 to discuss non elected personnel matters.  Motion carried unanimously.

            The Commission reconvened in regular session at 10:30. 

            Moved by Schauner, seconded by Highberger, to adjourn at 10:30. Motion carried unanimously.

APPROVED:

                                                                        _____________________________

Mike Rundle, Mayor

ATTEST:

___________________________________                                                                       

Frank S. Reeb, City Clerk

City Commission Meeting Minutes of March 8, 2005

1. Bid – UPS System for Information Systems to Electronic Supply for $30,294.

2. MACPP Bid – 4x4 crew cab for Fire/Medical from Shawnee Mission Ford for $25,914.

3. Engineering Agreement – Amendment 1 with Professional Engineering Consultants for Kasold, Peterson to KTA Bridge.

4. Ordinance No. 7863 – 1^st Read, Plumbing Code, materials for drainage.

5. Resolution No. 6580 – Condemnation of property for improvement of Monterey Way, S of Peterson.

6. Resolution No. 6581 – Community Development Block Grant

7. TSC – Pedestrian refuge island on 9^th at Schwarz.

8. TSC – Re-open Goldleaf Pl at Bob Billings Pkwy.

9. Subordination Agreement – 945 Highland, Danette Michaels.

10. Subordination Agreement – 1602 Irving Ct, Lenny & Kimberly DeFazio.

11. City Manager’s Report – Community Service/Paper Bags for yard waste.

12. TSC –  Install speed cushions along Bobwhite Dr between Bob Billings Pkwy & GWW.

13. Contractor Licensing requirements discussion.

14. Smoking Ordinance defining enclosed area & exception to smoking breakrooms.

15. Sidewalk Dining amendment discussion.