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February 21, 1994 Council MeetingFebruary 21, 1994 The regular scheduled meeting of Mayor and Council was held February 21, 1994 at 7:30 p.m. o'clock by presiding officer Mayor A. Max Bacon. All council members were present. Also present was City Administrator Bob Thomson, City Clerk Melinda Dameron, City Attorney Charles E. Camp, Police Chief Stanley Hook, Finance Director Jim Triplett, Fire Chief Larry Williams, Library Director Laurel Best, Patty Bacon representing the Parks and Recreation Department, Personnel Director Mary Ann White, City Engineer Ken Hildebrandt, Public Works Director Vic Broyles, Community Relations Director Kathie Barton, Chief Building Inspector Scott Stokes and representatives of the press. Invocation was given by Chuck Moon, pastor of Tillman United Methodist Church followed by the pledge to the flag. Mayor A. Max Bacon called on Mary Ann White who presented the Employee of the Month Award for February to Fireman Fred Anderson. Councilman Pete Wood read a proclamation in honor of Severe Awareness Week which is February 21 - 25, 1994. CITIZENS INPUT: Nothing to report. PUBLIC HEARINGS: (A) Variance Request - 2821 Fraser Street -Reduce side and Rear Yard Setback Bob Thomson stated Mr. Hubert Almond is requesting to reduce the rear yard setback from 5 feet to 3 feet and the side yard setback from 26 feet 8 inches to 12 feet. He further stated this is a corner lot and Mr. Almond needs the variance to allow him to build a 12 foot by 24 foot by 10 foot canopy to park his camper under. Mr. Thomson indicated Mr. Almond has a letter from his neighbor stating they have no objections to him building the canopy. Mayor Bacon asked if anyone was present in opposition to the granting of this variance request. There was no opposition. Councilman Hawkins asked Mr. Almond to briefly describe why he is requesting this variance. Mr. Almond stated he owns a camper which he currently parks under the trees in his yard. He further stated the canopy will protect his camper from bad weather and pine trees and indicated he plans to park his trailer on the back driveway of his lot. Mr. Hawkins stated he had visited Mr. Almonds property and stated that even though Mr. Almond's address is Fraser Street, the side yard actually adjoins Bank Street. Mr. Hawkins stated he has reviewed the plans and feels the structure is very nice and there are no complaints from the neighbor to his rear yard which is his closest neighbor that would be affected by the variance and their letter is with the variance request. Mr. Scoggins asked Mr. Almond if he had a driveway on both Fraser Street and Bank Street and Mr. Almond responded that he did. Mr. Hawkins made a motion that the variance request for 2821 Fraser Street to reduce the rear and side yard setbacks (to allow the building of a canopy) be approved. Councilman Lnenicka seconded the motion. Motion was approved 7-0. (B) Variance Request -Walton Park Apartments -South Cobb Drive -Reduce Side Yard Setback ~~"" Mr. Thomson stated the applicant is requesting this variance to better position a parking garage. He stated that Mr. Barry Teague has presented a letter of hardship in which he states that both adjoining property owners agree with the placement of the parking garage and Mr. Teague also had provided the city with letters from the adjoining property owners stating they had no objection to the garage location. Mayor Bacon stated this is a public hearing and asked if anyone was present in opposition to the granting of this variance request. There was none. Councilman Wood asked Mr. Teague to explain what the variance request encompassed. Mr. Teague stated this need was created when the property was split off from the Mill Pond Complex property and that the property was originally planned to be used as Phase 2 of the Mill Pond February 21. 1994 meeting -continued Condominiums. He further stated that the property line cuts across an existing parking lot in Mill Pond Condominiums and also cuts through some of their landscaping and further indicated that one of the Mill Pond buildings and a sidewalk are actually on his property. Mr. Teague stated Mill Pond suggested that he move the parking garage to a new location and proposed that he move it to an area of the parking lot which is already paved and swap him the property for the new location of the garage in exchange for an equal amount of land which is covered with hardwood trees and will eliminate the need for Mill Pond to move one of their sidewalks and destroy some of their landscaping. He further stated the proposed location is actually a better location for the garage and he is in favor of their proposal. Mr. Wood stated both property owners agree with the request and indicated he has letters signed by Mr. Clyde E. Eaton, President, Mill Pond Condominium Association. Mr. Wood stated there is also a letter with the application from the Smyrna Oakdale Moose Lodge 1917, Inc. officers stating they have no objections to his request. Mr. Wood made a motion that the variance request for Walton Park Apartments to reduce the side yard setback from 35 feet to 15 feet be approved. Jim Hawkins seconded the motion. Motion was approved 7-0. (C) Agent Change -Rio Corporation, D/B/A On & On Bar and Grill - 2528 Spring Road - Retail Pouring of Beer, Wine and Liquor Mr. Thomson stated Mr. Dixon McRae Allen, Jr. will be the agent for this establishment as well as the manager. He further stated The On & On Bar and Grill is located at 2528 Spring Road and has been in business since April of 1992. Mayor Bacon stated this is a public hearing and asked if there was anyone present in opposition to the granting of this request for an agent change for the retail pouring of beer, wine and liquor. There was no opposition. Mr. Patrick asked Mr. Allen if he had any previous experience managing or being the agent for a bar and grill establishment. Mr. Allen responded yes. Mr. Patrick then asked Mr. Allen if he was familiar with the City of Smyrna Ordinances pertaining to alcoholic beverages and Mr. Allen responded yes. Mayor Bacon asked Mr. Allen if he would be the on-site manager and Mr. Allen responded yes. Mayor Bacon then asked where 4590 K Valley Parkway was and Mr. Allen responded it was in Post Valley Apartments on South Cobb Drive. Councilman Patrick stated there was nothing in the Police Department investigation that would preclude the issuance of this request and made a motion that the license application for an agent change be granted. Councilman Scoggins seconded the motion. Motion was approved 7-0. (D) Agent Change -American Legion Post 160 -Legion Drive -Retail Pouring of Beer, Wine and Liquor Mr. Thomson stated Mr. William B. Turner will be the agent for this establishment and that he is an elected officer for the legion. Mayor Bacon stated this is a public hearing and asked if there was anyone present in opposition to the request for an agent change for the American Legion Post 160. There was none. Councilman Hawkins asked Mr. Turner how long he had been a member of the Legion and Mr. Turner responded twenty-two years. Mr. Hawkins then asked Mr. Turner if he had ever held the license for the legion in the past and Mr. Turner stated yes, in 1988 when he was the Commander. Mr. Hawkins then asked Mr. Turner if he was familiar with the Ordinance and Mr. Turner responded he was. Mr. Hawkins stated for the record the Police Department investigation revealed nothing that would preclude the issuance of this license to Mr. Turner. Mr. Hawkins then made a motion that Mr. William B. Turner be the agent for the American Legion Post 160, 160 Legion Drive. Councilman Newcomb seconded the motion. Motion was approved 7-0. (E) Agent Change - La Fiesta Mexican Restaurant, D/B/A Lupita's Mexican Restaurant #2 - 2161 South Cobb Drive February 21 1994 meeting continued Mr. Thomson stated Ms. Norma R. Langford will be the agent for this establishment and is also the assistant manager. He further stated the investigation by the Police Department revealed nothing that would preclude the issuance of this license. Mayor Bacon stated this is a public hearing and asked if there was anyone present in opposition to the granting of this agent change request. There was none. ~ Councilman Cramer asked Ms. Langford if this request was for an agent change only and had she received a copy of the alcoholic beverage ordinance. Ms. Langford responded yes. Councilman Cramer made a motion that the request for an agent change for La Fiesta Mexican Restaurant, D/B/A Lupita's Mexican Restaurant #2 at 2160 South Cobb Drive be approved. Councilman Lnenicka seconded the motion. Motion was approved 7-0. (F) Agent Change -Exxon, D/B/A Spring Road Exxon Shop - 1420 Spring Road Mayor Bacon stated this agent change request had been tabled from the previous meeting and asked if Mr. Ronald David Ball was present. Mr. Thomson stated Mr. Ronald David Ball will be the agent for this establishment as well as the manager. He further stated the Police Department investigation revealed nothing that would preclude the issuance of this request. Mayor Bacon stated this is a public hearing and asked if anyone was present in opposition to the granting of this request. There was none. Councilman Lnenicka asked Mr. Ball if he had received a copy of the new alcoholic beverage ordinance and Mr. Ball responded yes. He then asked Mr. Ball if he understood that if there was any violation at this location he would be responsible for that violation. Mr. Ball responded he understood the ordinance ~.• and that he would be responsible for any violations should they occur. Councilman Lnenicka stated for the record that the Police Department investigation revealed nothing that would preclude the issuance of the license. Mr. Lnenicka then made a motion that the agent change request for the Spring Road Exxon Shop at 1420 Spring Road be approved. Councilman Wood seconded the motion. Motion was approved 7-0. (G) Business License Application -Psycho Tattoo - 675 Windy Hill Road Mr. Thomson stated Mr. Charles Deano Cook has submitted an application for a tattoo parlor of which he is the owner. Mayor Bacon stated this is a public hearing and asked if there was anyone present in opposition to the granting of this business license request. Mr. Glen Schmidt came forward and identified himself as the instructor under whom Mr. Cook had trained. He further stated neither Mr. Cook nor his partner had completed the training program. Mr. Camp administered the oath to Mr. Cook and Glen Schmidt. Councilman Cramer asked Mr. Cook if he had received a copy of the ordinance pertaining to tattoo parlors and Mr. Cook responded yes. Councilman Cramer then asked Mr. Cook if he had the required certificate from his medical doctor in compliance with the ordinance and Mr. Cook responded yes. Councilman Lnenicka asked Mr. Cook about the blood tests being conducted by the Cobb County Health ~ Department and that the clearance would be contingent upon the results of that test. Mr. Cook responded that the letter in his packet was the results of the blood test. Mr. Lnenicka then stated that he was not sure that the certificate covered communicable through blood diseases. Mr. Cook responded that it did except for the HIV test, for which he had the test results. Mayor Bacon then asked where 675 Windy Hill Road was located. Mr. Cook responded it is directly across from Adventure Outdoors and is a house. Councilman Hawkins asked if the state of Georgia requires a license for a tatoo establishment. Mr. Camp stated the tattoo establishment would have to be approved by the State Board of Health. Mr. Cook stated that as far as he was aware the only requirements of the state were for age and a law pertaining to the tattooing of the face. Mr. Cook then stated he currently has a license through Cobb County for a mobile February 21. 1994 meeting -continued tattoo parlor and has been operating under such license. He further indicated this license allows him to operate anywhere in Cobb County except for the cities of Smyrna and Marietta. Councilman Newcomb asked Mr. Cook about the question of his previous arrests and indicated there were three listed on his application. Mr. Newcomb asked about a simple battery charge that occurred five years ago and Mr. Cook indicated that was when he was 17 years of age. Mr. Newcomb then asked about a DUI in Smyrna and Mr. Cook responded all his fines had been paid. Mr. Newcomb then asked about a simple battery charge in Marietta which is still pending. Mr. Cook responded that occurred two months ago and involved a misunderstanding. He further indicated he is sure when he goes to court it will be resolved. Mayor Bacon then asked Mr. Schmidt to come forward. Mr. Schmidt identified himself as the owner of the Monkey Man's Club Tattoo at the corner of US41 and Windy Hill. He stated he has been in the tattoo business for twenty years and has been teaching the tattoo trade since 1983. He also indicated he runs a two year program and pays apprentices on a salary per week basis. He stated his fee is $2500. Mr. Schmidt then stated the Cobb County license for a tattoo establishment is very easily obtained with the payment of a $105 fee. Mr. Schmidt then stated he felt every establishment should be inspected by the health department to ensure the safety of the clientele. Mr. Schmidt then stated he had no problems with Dalton White, Mr. Cook's associate. He further stated that Mr. Cook had come to him for training and Mr. Schmidt had financed his training at an approximate cost of $4900 and that Mr. Cook had left him with an outstanding balance of $2955.40. He then stated Mr. Cook was always late while he was an apprentice of his and felt he was very irresponsible. Mr. Schmidt then stated he had fired Mr. Cook for things he did not wish to disclose for doing things he did not allow in his shop but had subsequently taken him back. Mr. Schmidt indicate Mr. Cook had betrayed his trust by tattooing out of his kitchen. He then accused Mr. Cook of taking things from Mr. Schmidt's place of business by sneaking into the establishment with a key and removing items without Mr. Schmidt's permission and stated that until this date he had not seen him since. Mr. Schmidt indicate that Mr. Cook had a groin infection while he worked for him and suggested that the City of Smyrna should really look into the application as he had really been a problem for him, but also indicated he might not be a problem for the City. Mayor Bacon asked about the availability of apprenticeship programs to train tattoo artists. Mr. Schmidt indicated they are hard to find and that is why he set atwo-year supervised training program which he felt was adequate. Councilman Newcomb asked Mr. Schmidt if it was his sworn testimony that he had fired Mr. Cook. Mr. Schmidt responded that Mr. Cook had been fired more than once -- two times and that he had taken him back three times and that the last time Mr. Cook sneaked out on him and quit. Councilman Lnenicka asked Mr. Schmidt about the mention of another person involved in tattooing with Mr. Cook and asked if it was someone else the City should be concerned about. Mr. Schmidt replied that they both had been under his training program and would be working together. Councilman Newcomb then asked Mr. Cook about the charges that he had been fired from his previous place of employment not once but on several occasions. Mr. Cook explained that when you begin the apprenticeship program under Mr. Schmidt that it is an immediate $2500 and then while you are being taught you receive $200 a week to live on until Mr. Schmidt thinks you are ready to tattoo full time. Mr. Cook stated he felt Mr. Schmidt keeps a person on this schedule too long and felt it was a big scam as every other tattoo parlor has never heard of such. Councilman Newcomb asked Mr. Cook again if he had been fired by Mr. Schmidt. Mr. Cook responded yes. Councilman Newcomb then asked Mr. Cook about the signed and notarized application to the city in response to the question if he had ever been discharges from a job you answered no but the explanation states "have never been fired". Mr. Cook responded that when he had supposedly been fired, he had never left and it was never a final thing. Mr. Cook stated he did not think he had been fired but it was a difficult situation to explain. Mr. Cook further explained it was all over his DUI. He explained that he left to go meet with his attorney and when he came back Mr. Schmidt told him if he ever had to leave again during work hours he would be discharged. He said he explained to Mr. Schmidt that his court date would be during work hours and asked if Mr. Schmidt meant that he would be discharged for that reason. Mr. Cook further stated that Mr. Schmidt never said a word, just raised his eyebrows and at that point in time he (Mr. Cook) began packing his stuff.... Councilman Newcomb asked again if Mr. Cook meant he had never been fired and your relationship with February 21 1994 meetings- continued him was fine before January 12 of this year? Mr. Cook responded his relationship was not fine. Mr. Newcomb asked Mr. Cook if he had been fired previously. Mr. Cook said he did not consider that being fired. Councilman Hawkins asked what address appears on his Cobb County business license. Mr. Cook responded that it reflects his mother's address which is Favor Road. Mr. Cook stated the reason he left Mr. Schmidt because he was being held back and that he had a lot more capabilities than he was allowed to utilize and felt that he was not getting his money's worth. Councilman Newcomb asked Mr. Cook if there is a gentleman who will be in partnership with him. Mr. Cook responded that he had not even ventured into that yet as he had not gotten his license. Mr. Newcomb then asked if Mr. Cook would be the only operator and Mr. Cook responded yes, for a while but someone would come to work for him at a later time. Councilman Cramer stated that he was concerned about the letter on file from Mr. Cook's doctor. Mr. Cook explained that his doctor had prepared the letter not fully knowing what he should state in it but indicated he would be willing to word it in any manner that would be acceptable to the City and had even offered to be the doctor on call for Mr. Cook's business. Councilman Cramer made a motion to table the granting of the business license application for Psycho Tattoo until the March 7, 1994, council meeting. Councilman Scoggins seconded the motion. Motion to table the request was approved 7-0. (H) Alcoholic Beverage License - O'Kamara Package Store - 4929 South Cobb Drive -Retail Package of Beer, Wine and Liquor Mr. Thomson stated Mr. Albert M. Sesay will be the agent for this establishment as well as the manager. Mayor Bacon stated this is a public hearing and asked if anyone was present in opposition to the granting of this package beer, wind and liquor license. There was none. Councilman Wood asked Mr. Sesay if he had been the manager of such an establishment before and Mr. Sesay stated he had been in this type of business in Africa and that he understood the ordinance. Councilman Wood indicated he had reviewed the application and that the Police Department investigation revealed nothing that would preclude the issuance of this license. Mr. Wood then made a motion that the alcoholic beverage for O'Kamara Package Store at 4929 South Cobb Drive in Kenwood Plaza be approved. Councilman Hawkins seconded the motion. Motion was approved 7-0. FORMAL BUSINESS: (A) Bid Opening (Sealed Bid 94002) -Material for South Cobb Drive Water Line Mayor Bacon asked if there were any bids in the audience. There were none. Mayor Bacon indicated these bids were fora 10" water line on the eastern right of way of South Cobb Drive from Cooper Lake Road to Lois Drive. Five bids were mailed out with four being returned. The bids were opened and read as follows: Southern Meter Company, Stockbridge, GA $50,416.35 O & R Utilities, Buford, GA $47,938.12 Hughes Supply, Alpharetta, GA $49,601.77 Davis Meter, Kennesaw, GA $50,187.42 Councilman Scoggins made a motion that the bids be turned over to the Public Works Committee with a recommendation brought back to Council at the next meeting. Councilman Hawkins seconded the motion. Motion was approved 7-0. (B) Bid Opening (Sealed Bid 94003) -Installation of South Cobb Drive Water Line Mayor Bacon asked if there were any bids in the audience. There were none. Mayor Bacon stated we mailed out sixteen bids and received four. Bids were opened and read as follows: Februarv 21. 1994 meeting -continued Campbell Contracting Company, Kennesaw, GA $134,375 Ralph Ardito Ditching & Pipeline, Marietta, GA $ 73,110 Davis Contracting Company, Smyrna, GA $127,600 D&H Construction Company, Temple, GA $ 92,685 Councilman Scoggins made a motion that the bids be turned over to the Public Works Committee with a recommendation brought back to Council at the next meeting. Councilman Wood seconded the motion. Motion was approved 7-0. (C) Provision of Roll-out Container Service to New Subdivisions -Pilot Project Mr. Thomson stated the current in-ground container system is popular and this proposal is not anticipating removing any existing in-ground containers from residences. Mr. Thomson stated there is a breakdown of the savings from this 150-home pilot program. He further stated the roll out container capacity is 90- gallon and the current in-ground capacity is 33 gallons and that the city hopes to provide the same type sanitation service to these citizens. Mr. Thomson stated the estimated savings on 150 units would be approximately $21,150. Councilman Scoggins stated this is a pilot project for the John Wieland and Knight-Davidson subdivisions as agreed by Mayor and Council. Councilman Scoggins made a motion that the City proceed with this pilot project for these two subdivisions only. Councilman Cramer seconded the motion. Motion was approved 7-0. (D) Validate Petition to Annex Property -International Gospel Outreach Church Mr. Thomson stated that the International Gospel Outreach Church that is located in the former Eckerd Drug Store building at the corner of Atlanta Road and Windy Hill Road has submitted their petition for annexation. Councilman Scoggins made a motion to validate the petition for annexation of the International Gospel Outreach and set the public hearing for March 21, 1994. Councilman Jim Hawkins seconded the motion. Councilman Newcomb stated that he felt bringing this parcel into the city would be good but he has some problems validating the petition for some technical reasons. He then indicated he was not able to determine which parcel on the attachment to the application was actually to be annexed and also on the application the only legal description indicated simply that the property was located in Land Lots 491, 492 of the 17th District, 2nd Section Cobb County but the Georgia law specifies the legal description must be complete. He further stated that the applicant must also put their name and address on the application and that was not on the application nor was a date on the application. Councilman Scoggins stated he felt Mr. Newcomb's points of concern were valid but felt all these items would be resolved at the public hearing which is scheduled for March 21, 1994. Motion to validate the petition for the annexation of the International Gospel Outreach Church and to set the public hearing for March 21, 1994 was approved 5-2 with Mr. Newcomb and Mr. Lnenicka opposed. COMMERCIAL BUILDING PERMITS• There were none. BID AWARDS: (A) Carpet -City Hall Councilman Pete Wood stated the city had requested bids for carpet at city hall and received two bids which were opened and read at the last council meeting. The bids received were from Truelove Floors ~1p ($9,053.19) and Bell-Mann Carpets ($8,612.26). Mr. Wood then stated that Bell-Mann Carpets submitted the low bid and made a motion that the bid award for carpet at city hall be awarded to Bell-Mann Carpets for a total price of $8,612.26. Councilman Lnenicka seconded the motion. Motion was approved 7-0. CONSENT AGENDA: (A) Approval of February 7, 1994 Minutes (B) Budget Adjustment -Replacement of Engine on Spare Sanitation Truck (C) Budget Adjustment -Purchase of Police Vehicles (D) Budget Adjustment -Purchase of Conference Room Chairs for Public Works Addition February 21 1994 meeting,- continued (E) Approval to Request Proposals for Audit Services (F) Approval to Purchase Fuller Property -Atlanta Road Councilman Scoggins made a motion the consent agenda be approved. Councilman Lnenicka seconded the motion. Motion was approved 7-0. SHOW CAUSE HEARING: (A) The Timbers -Violation of Section 3-3-25 (b) Mr. Thomson stated on January 1, 1994, owner John Nusckabel of The Timbers was cited for consumption of alcohol on the premises by an employee. He also stated that subsequently the owner's wife, Janice R. Nusckabel, has been cited on January 30, 1994 for violation of Section 3-3-41, selling to a person in an intoxicated condition and Mr. Nusckabel had been notified of the hearing tonight. Mayor Bacon asked Mr. Nusckabel to come forward and was sworn in by City Attorney Chuck Camp. Mayor Bacon then asked the arresting officer, M. Plumb to come forward to also be sworn in. Councilman Hawkins asked Mr. Nusckabel if he had been cited for another violation after the January 1, 1994 citation. Mr. Nusckabel stated that he had not been cited but that his wife had. Mr. Hawkins asked Mr. Nusckabel if he had been notified of a show cause hearing on the second offense and Mr. Nusckabel answered that he had not. Councilman Hawkins then stated that rather than hear the same story in two different meetings he felt it would be prudent to table this hearing tonight and have the show cause hearing at such a time where both violations could he heard at one time. Mayor Bacon asked Mr. Hawkins if his intent was to hear both although separate violations at the same time and Mr. Hawkins responded yes. Councilman Cramer seconded the motion. ~,.. Mr. Nusckabel then stated that each incident was separate and on two different things and did not feel they were related. Mayor Bacon then stated both violations pertained to the same code violation. Councilman Hawkins then asked Mr. Nusckabel if he would prefer to proceed tonight on the first offense and Mr. Nusckabel responded yes. Mr. Hawkins then asked Mr. Nusckabel if he planned to come back for the second hearing and Mr. Nusckabel responded yes. The motion and second was then withdrawn. Mayor Bacon then asked Officer Plumb to come forward and state the facts pertaining to the issuance of the citation. Officer Plumb stated at approximately 1:45 on the morning of January 1, 1994, he was dispatched by Smyrna Police dispatch on a call of a man down, or an injured person, at The Timbers at 730 Concord Road. He further stated that upon his arrival he was upstairs at the bar and was able to observe Mr. Nusckabel, the owner and agent, and asked him if he knew where the injured person was. He stated Mr. Nusckabel was unable to tell him and Officer Plumb stated he was able to detect a strong odor of an alcoholic beverage on his breath. Officer Plumb stated he then asked Mr. Nusckabel if he was working to which Mr. Nusckabel responded "sort of." He then asked Mr. Nusckabel again if he was working and he replied that he was. Officer Plumb stated he then insisted on knowing where the injured person was so he would be able to help him and Mr. Nusckabel responded "maybe downstairs." Officer Plumb stated he went downstairs and looked in all the open rooms downstairs and was unable to locate an injured person. He then stepped out onto the back deck and located a Mr. George Southern, who was extremely intoxicated, having difficulty maintaining his balance and who stated he had passed out. He further indicated there were several females around Mr. Southern at the time trying to give him aid, one was a waitress and one who identified herself as a nurse, who was also highly intoxicated. Officer Plumb `~ then spoke with Mr. Southern who was cognizant and knew where he was and he stated he had been drinking in the downstairs bar and had then gone upstairs and had five straight shots at the bar but did not say which bar and that that was too much for him and he had become dizzy and had to step outside. Officer Plumb then reported that the medical personnel had arrived and Mr. Southern refused all medical attention and someone else took Mr. Southern home. Officer Plumb stated he then returned upstairs and contacted Mr. Nusckabel and advised him of what was going on and again detected a strong odor of alcohol on his breath. Officer Plumb stated he then asked Mr. Nusckabel to step outside and determined that he was intoxicated and issued him a summons, and asked him if he would be willing to submit to a alcohol sensor test which he refused. He stated that after he had issued the summons for the violation of the City ordinance, drinking while on duty, he said that possibly one of his bartenders had spiked his coffee. February 21, 1994 meeting -continued Councilman Hawkins then asked Officer Plumb if Mr. Nusckabel was under any state obligation to submit to the alcohol sensor test and Officer Plumb responded that he was not. Mayor Bacon then asked Officer Plumb if he felt that Mr. Nusckabel had been drinking more than just a spiked coffee. Mr. Plumb responded that Mr. Nusckabel had blood shot eyes, and had difficulty focusing, and also had difficulty maintaining his balance which indicated to him that he had more than just spiked drink and that possibly he was intoxicated. Councilman Hawkins stated that from Officer Plumb's testimony he gathered that he suspected Mr. Nusckabel had been serving a customer who was already intoxicated. Officer Plumb responded that Mr. Nusckabel's bartender not Mr. Nusckabel personally. Councilman Hawkins then asked if the bartender was cited for that and Officer Plumb responded no; that he had noted on the written citation that a verbal warning was issued regarding serving to prohibited persons which is an intoxicated person. Mayor Bacon then asked if he discovered who the bartender was and Officer Plumb responded that Mr. Nusckabel has asked all of his bartenders and they .all stated they had not served him a drink upstairs. Councilman Lnenicka then asked Officer Plumb what were the circumstances that led him to go to The Timbers in the first place and Officer Plumb responded he was dispatched in reference to an injured person who was Mr. Southern. Councilman Lnenicka then asked Officer Plumb if he was on patrol at the time he received the call. Officer Plumb responded yes. Councilman Newcomb asked Officer Plumb about the indication in his report about the response from Mr. Nusckabel "you mean to tell me I can't drink in my own bar" which implied to him that you did not say he couldn't but that he was surprised that that would be something he couldn't do. Officer Plumb responded that he did not sound familiar with the ordinance in that the owners or persons working in the establishment are entitled to drink in the establishment. Mayor Bacon then asked Officer Plumb if this had been a problem location before and Officer Plumb responded not that he knew of. Officer Plumb then indicated he had spoken with Mr. Nusckabel in the past while conducting bar checks and has told him on several times about the quantity being served to intoxicated persons and had recommended that he should try to train the bartenders to cut them off. He further indicated he had spoken to several of his bartenders two weeks prior to that and they indicated they were complying with that and were working on cutting off patrons when they were intoxicated. Mayor Bacon asked Officer Plumb if this was an isolated case where he had just gone to The Timbers or had he gone to other bars. Officer Plumb then stated that he worked different zones and tries to run at least one bar check a night at different establishments to try to ensure that all ordinances are being followed. Mayor Bacon then asked Officer Plumb what he usually told the bar owners when he arrived. Officer Plumb stated he identifies himself to the owner and explains why he is there and then he looks around to see if any violations are occurring and tries to correct them. Councilman Scoggins then asked Officer Plumb how he determined Mr. Nusckabel was intoxicated. Officer Plumb stated he observed Mr. Nusckabel was having difficulty maintaining his balance and had bloodshot eyes, difficulty focusing and by his own admission that one of his bartenders had laced his coffee with a drink. Mayor Bacon then asked Mr. Nusckabel to come forward. Councilman Hawkins then asked Mr. Nusckabel to describe what happened that night. Mr. Nusckabel explained it was New Year's Eve and they were completely book. He further stated he had hired a man to manage the club for New Year's Eve so that he would not be interfered with while he was playing music and he did so from 9:00 p.m. to 1:30 a.m. He further stated that at 1:30 a.m., when the night was over for him to play music, he observed a waitress running back and forth from upstairs to downstairs and then he saw another waitress doing the same thing and when he got off stage he asked what was going on and was told that George, a regular customer of theirs, had had a heart attack. He explained they had the downstairs bar, which is used for a restaurant at lunch time, being used to serve breakfast which they were serving after the New Year's Eve party had finished. He stated that he later learned from George that he had gone downstairs and it was warm in there and he had been dancing and it had taken his breath. Mr. Nusckabel then stated that on that particular night, at the end of his work night, he went to the bar and was having some coffee with a friend and this officer came up the steps and called him over to him and stated the he was going to have to arrest his bartender. He then asked the officer what the problem was and Officer Plumb indicated he had spoken to a man downstairs who told him he had been served five shots of alcohol in the last hour. Mr. Nusckabel stated he told the officer February 21 1994 meeting -continued he did not believe that was true because the house was sold out and he knew exactly where George was sitting and everyone had a reserved seat; George was sitting at the bar where Wendy was serving and offered to get the guest check to straighten the matter out. He then got the guest check for the night and it indicated he had had for our five drinks, with the first one being at 8:30 p.m. and the last one at 1:15 a.m. He further stated he went back and told the officer that he had consumed five drinks but that it had been over a period of over five hours at which point the officer told him that was too much for a person to drink. He then stated he informed the officer that unfortunately that he had been to a DUI school and was taught that you could have one drink an hour forever and you would be legally sober but that when you get more than one drink per hour that's when you have problems and that is what they try to teach their servers -- people should not drink more than one drink per hour and they are pretty safe. He then stated that after the discussion with the officer, the officer was not going to arrest the server and then asked Mr. Nusckabel if he had been drinking. Mr. Nusckabel responded that he told him he had not been drinking that he had only had one coffee and Bailey's and he said Officer Plumb stated that he thought he had been drinking and asked him to step outside. He further stated he stepped outside and Officer Plumb asked him for his drivers license and he told he he did not have it on him and the officer told him he was supposed to have it with him at all times. Mr. Nusckabel told Officer Plumb he did have identification and his servers license but not his drivers license. Mr. Nusckabel stated that when he showed Officer Plumb his servers license, Officer Plumb asked him to blow a breathalizer and he stated he did not feel the officer had a right to make him do that. He stated he then asked the officer what he was citing him on and said he did not think the officer really knew what he was citing him on and stated that especially after hearing his testimony tonight he did not think he knew what he was citing him on. Mr. Nusckabel said that according to what the ordinance states, was that he was accused of serving an employee and that is what he is here for -- the officer accused him of serving an employee a drink while the employee was working. He then asked if the ordinance defines what an employee is; and is he an employee just because he owns the place. He stated Officer Plumb had told him two weeks prior to this that the ordinance was passed because they were not going to let people who have liquor licenses drink in the place anymore because they had been having problems with some gal that owns some club that gets intoxicated and gets behind the bar and does not have good judgement of when people are over served or not and that was the reason the new ordinance, was written -- to keep owners and people who have liquor license from drinking. Councilman Hawkins asked Mr. Nusckabel if he had been given a copy of the citation. Mr. Nusckabel responded yes. Mr. Hawkins then stated that was Section 3-3-25(b) and asked Chuck if he wanted to look that up -Employee Consumption of Alcohol on the Premises. Councilman Newcomb stated he had the Ordinance. Councilman Newcomb then read from the ordinance as follows. "Under Section 3-3-25. Limitations on employee conduct. (b) It shall be unlawful for any employee or independent contractor of any licensee to consume alcoholic beverages on the premises of the licensee during such employee's or independent contractor's working hours." Councilman Hawkins then asked Mr. Nusckabel if he consumed any alcohol on that night and Mr. Nusckabel responded yes after he got off work. He then asked Mr. Nusckabel if he was saying that at the time Officer Plumb was there he was stone cold sober. Mr. Nusckabel responded no, that he was off work and was not working. Mr. Hawkins then asked if he was on the premises and was he the agent/owner. Mr. Nusckabel responded yes he was the owner/agent but was not an employee at the time. Mr. Hawkins then stated that he felt that the owner anytime he was at work was an employee. Mr. Nusckabel responded that was Mr. Hawkins' opinion and he felt a definition was needed. Mr. Hawkins then asked if Mr. Nusckabel was earning money that night. Mr. Nusckabel responded not at that time. Mr. Hawkins then said your company was not making money on New Year's Eve night -that night? Mr. Nusckabel responded personally he was not working, the company was. Mr. Hawkins then stated you own the company. Mr. Nusckabel responded he owned 50% of the company. Then Mr. Hawkins stated '~ then you were making money. Mr. Nusckabel responded that he was making money but that he was not employed at the time, he was not an employee of himself at that time; earlier in the night he had been, as he had subcontracted himself to play music there. Mr. Hawkins then asked Mr. Nusckabel if had consumed alcohol while he was there that night. Mr. Nusckabel responded yes he did, but not while he was employed. City Attorney Chuck Camp then asked Mr. Nusckabel if he locked up the business that night. Mr. Nusckabel responded he did not. Mr. Camp then asked him if he locked up the business every night and Mr. Nusckabel responded he did not. Mr. Camp then asked who does lock up at night and Mr. Nusckabel responded that his wife did that night. Mr. Camp then asked if he drove his wife home and Mr. Nusckabel responded he did not. Mr. Camp then asked if his wife had gone home separately and February 21. 1994 meeting -continued Mr. Nusckabel responded yes. Mr. Nusckabel then stated that night he had the assistant manager on duty because his wife plays music with him and they did not want to be bothered on the stage and there are some problems that come up when you have a house full of people on New Year's Eve and he had hired an extra person who was the manager on duty for the night and who was there on the property. Councilman Hawkins asked Mr. Nusckabel if this was the first violation at The Timbers since he became the owner. Mr. Nusckabel responded yes. Councilman Hawkins then asked Officer Plumb if to his knowledge this was the first violation since Mr. Nusckabel became the owners and Officer Plumb responded yes. Councilman Hawkins made a motion that since this is the first offense at the Timbers and there have been no problems there in the past, he recommended that the license Mr. Nusckabel holds be placed on probation for one year since it is the first violation and that any future violations would be considered at a separate time. Motion was seconded by Councilman Newcomb. Motion was approved 7-0. Mr. Nusckabel then asked if there was a possibility of getting a definition so people could understand the ordinance. He then asked if he was considered an employee all the time since he is 50% owner of the establishment and asked if the governing body was telling him that he can't go over there and have a beer anymore when he is not working; and would have to go down the street. Councilman Hawkins stated he thought that would get into a legal question but his opinion is that an owner, when on the property, is not like an employer relationship but that is the intent of the ordinance. Mr. Nusckabel then stated that he felt he was put on probation because he had a drink when he was off work. Councilman Hawkins stated Mr. Nusckabel was not off work, he was there. Mr. Nusckabel stated he was off work. Mayor Bacon stated that the City would get an answer to his question. COMMITTEE REPORTS: Councilman Patrick reminded the public the Library is still collecting Campbell Soup labels which are used to purchase computers and related equipment for the library and can be dropped off at the Library in the appropriate container. Laurel Best stated the Library has a new art exhibit, cartoons done by students at Campbell High School. Councilman Newcomb called on Mary Ann White for a report from the Personnel Department. Ms. White stated there were several openings in the city with closing dates this week. Councilman Scoggins complimented Kathie Barton on the recent Clean and Beautiful awards banquet held February 16. Councilman Hawkins called on Chief Larry Williams for a report on the Fire Department. Chief Williams reported the children from Brown Elementary School will be visiting the Fire Safety House this week. Councilman Cramer called on Patty Bacon for a report from the Parks Department. Ms. Bacon stated there were three special events coming up soon in the Parks Department; on February 26 a GRPA District Tournament (girls 14 and under); March 5 -Smyrna Night with the Hawks; and April 23 - Smyrna Night with the Braves. Councilman Lnenicka stated neither he nor Chief Hook had any comments for tonight. Councilman Wood asked Jim Triplett for a report from the Finance Department. Mr. Triplett stated the first budget meeting had been held February 15. He also stated the Finance Department filed FiFa's last week for delinquent property taxes and that over 300 were filed. With no further business the meeting adjourned at 9:22 p.m. Februa~ 21 1994 meeting -continued ~~~~- A. MAX BACON, MAYOR J PATRICK, WARD 1 BILLS OGGINS, W D 3 ACK CRAMER, WARD 5 ~~~ CHARLES PETE WOOD, WARD 7 DAMERON, CITY CLERK RON NEWCOMB, WARD DAMES M. HAWKINS, ARD 4 WADE S. LN NICKA, ARD 6