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11-6-89 council minutes November 6, 1989 The regular scheduled meeting of Mayor and Council was held pursuant to the Charter on November 6, 1989 at Smyrna City Hall. The meeting was called to order at 7:30 o'clock p.m. by presiding officer Mayor A. Max Bacon. All council members were present. Also present was City Administrator John Patterson, City Clerk Melinda Dameron, City Attorney Charles E. Camp, Personnel Director Jane Sargent, Public Works Director Vic Broyles, Fire Chief Larry Williams, Acting Police Chief Major Kent Sims, Recreation Supervisor Susan Hunt, Finance Director Emory McHugh, Communications Director Steve Ciaccio, Librarian Laurel Best, Building Inspector Scott Stokes and representatives of the press. Invocation was given by Michael Ward from Welcome All Baptist Church, followed by the pledge to the flag. CITIZENS INPUT: Kathy Barton presented awards to two groups from the Smyrna Assembly of God for picking up litter along the right of ways and planting jonquil bulbs at the city limit signs. Mayor Bacon announced that in May of this year, Everett Little retired as Police Chief and since that time a search has been underway for a new Chief. Tonight, Stanley Hook from Amsterdam, NY accepted the position. Mr. Hook was rated as the number one candidate by the Civil Service Board and council also fel t that he was the very best qualified candidate. Mayor Bacon introduced Mr. Hook and welcomed him. PUBLIC HEARINGS: (A) Variance request - side yard setback at 931 Concord Road. John Patterson stated that Dr. Remond Weinburg of Lifeline Chiropractic Center is requesting this variance to build a 12 x 33 addition onto the rear of his office to provide for three additional treatment rooms. The present building side yard setback is grandfa thered at 12.7 feet and this addition would be 12.1 feet from the right of way of McLinden Avenue. There was no opposition from the audience. David Lynah represented Dr. Weinburg and said the addition would straight line with the existing structure but would be approximately closer to McLinden Avenue. Dr. Weinberg also owns the property to that would be affected by this variance and a letter was submitted other adjacent property owner stating they had no objections to the variance. be in a 6 inches the rear from the Jim Hawkins made a motion the variance be approved as requested. Wade Lnenicka seconded the motion, which carried 7-0. (B) Privilege license - Liquor, beer and wine pouring - Ruby Tuesday's, 3197 South Cobb Drive. John Patterson stated that Eric Michael Paul has submitted an application as the agent for the new Ruby Tuesday's at 3197 South Cobb Drive. Mr. Paul meets the residency requirements and the police investigation was favorable. There was no opposition from the audience. Eric Michael Paul said he was the Division Vice President for Morrison's and also introduced Leonard Moore who will be the manager for this new facili ty. Mr. Paul said he realized he would be the person responsible for any local or State violations and had read our ordinance. Mr. Paul said they have an extensive training program for their employees and their food sales are about 80% of gross sales. Mr. Moore will be managing the restaurant, having previously managed stores in Florida and more recently at Perimeter Mall. Mr. Lnenicka recommended that they establish a firm policy to card everyone and not leave it up to their employees to make the determination if they are of age. Jack Shinall also asked Mr. Paul to provide a copy of their training program to be kept on file. After further discussion, Jim Hawkins made a motion the license be approved. Wade Lnenicka seconded the motion, which carried 7-0. (C) Privilege license - liquor, beer and wine pouring - Casa De Garcia Restaurant, 4924 South Cobb Drive. John Patterson stated that Gloria Garcia has applied as the licensee for Casa De Garcia Restaurant on South Cobb Drive, in the Kenwood Plaza Shopping November 6, 1989 meeting - continued Center. There was no opposition and the police investigation was favorable. Mrs. Garcia said they have no other restaurants or liquor licenses has read the ordinance regarding alcoholic beverage sales and understood them. They planned a training program for employees provide an outline for the City if it was required. but she fel t she and would After further discussion, John Steely made a motion the license be approved. Bob Davis seconded the motion, which carried 7-0. (D) Privilege license - liquor, beer and wine pouring - The Steer Restaurant, 652 Concord Road. John Patterson stated that Marc D. Cella has applied for a liquor, winepouring license for The Steer, formerly the Western Steer on Road. The police investigation was favorable and there was no opposition. beer and Concord Mr. Cella said he was the corporate counsel for Georgia WSMP, Inc. and introduced Nick Lourick, General Manager. Mr. Cella said he is also a local resident and since the restaurant is between his home and office, he planned to spend a good bit of time there, understanding that he would be responsible for any violations. Mr. Lourick outlined the training program for employees, which included a color code warning system to be used when serving alcohol to their customers. Jim Hawkins said there are two homes across the street but since they are not inside the city limits, are not considered in the distance requirements established by Code. Mr. Cella has, however, obtained waivers from those homeowners even though they were not required. After further discussion, Jim Hawkins made a motion the license be approved. Jack Shinall seconded the motion, which carried 7-0. (E) Privilege license management change - Casa Gallardo Mexican Restaurant, 2728 New Spring Road. John Patterson said that Francis as the new appointed agent investigation was favorable and there Robert Shea has submitted an application for Casa Gallardo Restaurant. The was no opposition from the audience. to act police Nancy Saul represented Casa Gallardo along with Mr. Shea. Ms. Saul said the restaurant has had problems maintaining a manager that meets our residency requirements and the last change was approved in February 1989. Mr. Shea stated he was the lounge manager and had been employed by Casa Gallardo for 6 months. Mr. Shea said he also had read and understood our ordinance governing the sale of alcoholic beverages. With little discussion Bob Davis made a motion the license be approved. Wade Lnenicka seconded the motion, which carried 7-0. FORMAL BUSINESS: (A) Validate signatures to annex property in Land Lots 307 and 308. Attorney Camp read an application for annexation of property, signed by Joe L. Thompson as follows: We the undersigned, who constitute sixty percent (60%) of the electors resident and sixty percent (60%) of the owners of the land area by acreage, as described below, which is unincorporated and contiguous to the City of Smyrna, hereby apply to have said area annexed into the City of Smyrna under the provisions of laws of the State of Georgia, said property being annexed being described as follows: All that tract or parcel of land lying and being in Land Lot 307 and 308 of the 17th District, 2nd Section, Cobb County, Georgia, and being more particularly described as follows: BEGINNING at the common corner of Land Lots 270, 271, 306 and 307 and running thence south 88 degrees 06 minutes 26 seconds east along the north land lot line of Land Lot 307 a distance of 728.59 feet to a point; thence south 22 degrees 30 minutes east a distance of 1152 feet to a point along the centerline of Smyrna Creek; thence south 00 degrees 28 minutes 57 seconds east a distance of 263.70 feet to a point; thence north 78 degrees 26 minutes November 6, 1989 meeting - continued 53 seconds west a distance of 275 feet to an iron pin set; thence south 11 degrees 24 minutes 16 seconds west a distance of 200.70 feet to an iron pin set on the north right of way line of Church Road; thence north 78 degrees 35 minutes 25 seconds west a distance of 374.77 feet to an iron pin set; thence north 30 degrees 22 minutes 31 seconds east a distance of 440 feet; thence north 8 degrees 09 minutes 43 seconds east a distance of 245 feet; thence north 25 degrees 28 minutes 20 seconds west a distance of 601.54 feet; thence north 64 degrees 53 minutes 33 seconds west a distance of 681.95 feet to an iron pin at the corner corrmon to Land Lots 270, 271, 306 and 307 and point of BEGINNING. WHEREFORE, THE UNDERSIGNED HEREBY APPLY FOR SUCH ANNEXATION. Witness the hands and seals of 60% of the record titleholders of the land described above: s/JOE L. THOMPSON Jack Shinall made a motion the petition be validated and the public date set for December 4, 1989. John Steely seconded the motion, which carried 7-0. (B) Bid openings Bids for a new sedan for the Fire Department were opened, read and recorded as follows: Days Chevrolet Wade Ford $13,700 $14,129 Kathy Jordan made a motion the bids be turned over to the committee with authority to award the low bid meeting specifications. John Steely seconded the motion, which carried 7-0. Bids for two pickup trucks for the Community Development and Utilities Department were opened, read and recorded as follows: Days Chevrolet $11,124 $13,000 Wade Ford $10,959 $13,082 Jack Shinall made a motion the bids be authority to award to the low bidder seconded the motion which carried 7-0. turned over to the committee with meeting specifications Bob Davis (C) Approval to increase retail water rates. John Patterson said the increase to its retail through to our customers. Cobb-Marietta Water Authority recently passed customers effective October 1st which must be on an passed Jim Hawkins said the Cobb-Marietta Water Authority is our sole supplier for water and we have been notified of the water increase taking effect October 1st. The increase cannot be absorbed by the City and city staff members were asked to study the increase to determine our needs and poll other cities before making a recommendation. Cobb County charges $7.72 per thousand; Austell charges $1.46; Powder Springs $1.72 and Marietta $1.65 per thousand with some of those cities having base rates similar to ours. The Finance and Administration has recommended a rate of $1.40 per thousand, which would still give us the lowest rates in the county. We would need to adopt a rate of $1.20 per thousand to break even and the additional .20 would provide funds for the water looping project which we need to improve water pressure in our city. This project will cost about $240,000 and funds need to come from Water Revenue. The additional money would also put is in a financially secure position to ensure a good bond rating for any future major improvements. Mr. Hawkins said we have not had a water increase in the last 2 years and during that time our salaries and operating costs have increased substantially. Jim Hawkins made a motion the water rates be increased from $1.10 to $1.40 per thousand, seconded by Kathy Jordan. Jack Shinall said he would not support the increase to $1.40 because he felt that amount was unwarranted. An increase is needed, but $1.30 per thousand would give additional funds we need for the looping proj ect plus any reserves. Mr. Shinall said we are already budgeting money for the looping and felt this 27% increase was excessive and he would not support it. Vote on November 6, 1989 meeting - continued the motion to approve the new rate of $1.40 carried 6-1, with Jack Shinall opposed. (D) Appointment to Community Relations Council. Jack Shinall made a motion this appointment be tabled. Kathy Jordan seconded the motion which carried 7-0. (E) Set date to hear appeal of Recorders Court - Helen Diane Border John Steely made a motion the appeal for Helen Diane Borders be set for November 20, 1989. Kathy Jordan seconded the motion, which carried 7-0. BID AWARDS: (A) Jonquil Pool bathhouse Bill Scoggins made a motion the bid for the Jonquil Pool bathhouse be awarded to B. L. Law, the low bidder at $33,200. Bob Davis seconded the motion, which carried 7-0. (B) Tolleson Park tennis court restrooms Bill Scoggins made a motion the renovation of the restrooms at Tolleson Park tennis court be awarded to B. L. Law, the low bidder at $24,150 to be paid from the contingency fund. Jack Shinall seconded the motion, which carried 7- o. (C) Detour lights for Public Works Department Jack Shinall made a motion the detour lights be awarded to Con Equip, the low bidder at $3,515 provided they meet delivery within 30 days. Bob Davis seconded the motion. After discussion, Wade Lnenicka amended the motion to state that if delivery cannot be made within 30 days, the bid be awarded to the next low bidder, BBJ, Inc. for $4,115. Jack Shinall seconded the amendment. Vote on the amendment and rain motion carried 7-0. (D) Removal of Tolleson Park pool awning structure Bill Scoggins made a motion the removal of the pool awning be awarded to B. L. Law, the low bidder at $6,750. John Steely seconded the motion, which carried 7-0. (E) Computer equipment for Fire Department Kathy Jordan made a motion the computer equipment be awarded to National AI Lab at $11,002. Jack Shinall seconded the motion, which carried 7-0. COMMERCIAL BUILDING PERMITS: Nothing to report. CONSENT AGENDA: (A) Approval to request bids for dump truck and steam cleaner (B) Approval of minutes: 10/2/89 and 10/16/89 (C) Approval of budget adjustments (D) Approval of Mayor or City Clerk to receive service of process Jim Hawkins made a motion the consent agenda be approved. Wade Lnenicka seconded the motion, which carried 7-0. SHOW CAUSE HEARINGS: John Patterson said that after the amendment to the alcoholic beverage ordinance allowing for suspension by this body, the sting operation began again in an effort to be certain that the license holders were properly discharging their duty and fulfilling the code. Unfortunately, there were other cases made that will be heard tonight. Tenneco Food Store, 2610 Cobb Parkway Licensee Robert Cyrus Walburn was sworn in along with the Area Supervisor and Store Manager, with Captain Ted Kirby from the Smyrna Police Department. Attorney Wes Baxter represented Tenneco. Captain Kirby said that on October 18, 1989, he sent an underaged buyer into November 6, 1989 meeting - continued the Tenneco it. 2610 Cobb Parkway where he purchased a 6 pack of Bud light from the clerk, Frederick Christmas. Captain Kirby went into the store to notify the manager and later charged him with furnishing alcoholic beverages to a minor. The buyer in this case was 20 years old, born July 27, 1969. The clerk said he did not check the ID, but he did have a 6 pack sitting behind the counter that he had just taken from another minor who was checked. Wes Baxter said the employee who made the sale has been fired and there was certainly no intent on the part of Tenneco to violate the law. They were willing to take their punishment but did ask that council be reasonable. After hearing all testimony Jim Hawkins made a motion the license be suspended for 30 days, effective at 12:01 a.m., November 7th. Bob Davis seconded the motion, which carried 7-0. Quick-Trip Food store, 3875 South Cobb Drive Licensee Douglas Cussimanio and Operations Manager Bill Friggel were sworn in by Mr. Camp. Ted Kirby said that on the evening of October 25, 1989, their underaged buyer was sent in to the Quick Trip where he purchased a 6 pack of Budweiser beer. His ID was checked by the clerk Thomas Allen Curtis, who asked and was told by another person in the store that 20 was the legal age to buy. After the buy was made, Captain Kirby entered the store and advised the clerk he had just sold to an underaged person and that a warrant would be taken later and he agreed to turn himself into the Sheriff's office the following day. Assistant Manager Todd Shiflett was notified of the violation. Mr. Cussimanio said they do have an excellent training program and he had personally trained Tom Curtis but apparently he was not able to calculate the age from the date of birth on the license. He was suspended when the incident occurred and he has since resigned, rather than face disciplinary action. After further discussion and hearing all the testimony, Jim Hawkins made a motion the license be suspended for 30 days effective at 12: 01 a.m., November 7th. John Steely seconded the motion, which carried 7-0. Zesty Food Market, 5055 Oakdale Road Licensee/owner Bimesh Marvasty and store clerk Melisa Joyce Singley were sworn n by Mr. Camp. Mr. Marvasty was represented by Attorney Larry Yarborough. Captain Kirby said that on October 18, 1989, they sent their 20-year-old underaged buyer into Zesty Food Market where he purchased a 6 pack of Budweiser beer from store clerk Melissa Joyce Singley, without being asked for any identification. Miss Singley was informed that she had just sold to an underaged person and Mr. Marvasty was notified by telephone of the viola tion. Captain Kirby said the- Ue was no particular reason to go to the store, other than to spot check, and some stores had been checked as often as 2 or 3 times. However, there had been some hearsay about alcoholic beverage sales being made at Zesty Food during the time their license was in suspension in August of this year. Parks and Recreation employee Trudy Lawless was later sworn in and testified that she shopped in the Zesty Food Market frequently and had personally observed Mr. Marvasty selling beer while his license was suspended for sales to an underaged person. Mr. Yarborough objected to the line of questioning because they had not been put on notice of any other violations. Mr. Camp dismissed the witness and said the City could bring this again as a separate action. After hearing testimony from Ms. Singley, Mr. Marvasty presented a petition to council signed by 261 people in support of him and his business. Mr. Camp said the introduction of the petition by Mr. Marvasty had opened the door for testimony from Trudy Lawless, which was not allowed earlier. Mrs. Lawless was recalled and testified again under oath that she was in the Zesty Food Mart the day after their license had been suspended by the City for selling to minors and observed Mr. Marvasty selling a case of Budweiser beer to the man in line in front of her. After accepting the money for the beer, he placed a brown bag over the box before placing it in the car. Mr. Marvasty den i e d the incident and said he had never sold beer by the case. After further discussion, Mr. Yarborough requested that council be lenient in their decision and hoped they would see fit to reins ta te the license tonight with certain conditions. Jim Hawkins said he had tried to keep an open mind tonight throughout the testimony but made a motion the license at 5055 Oakdale Road for Zesty Food Market be suspended for 6 months, the maximum allowed by ordinance November 6, 1989 meeting - continued short of permanent revocation. John Steely seconded the motion. Jack Shinall said from the testimony tonight he personally did not know if Mr. Marvasty was capable of operating a business that sells alcoholic beverages since it was apparent that he did not understand the law when he stated earlier that his employee did not have to be fingerprinted to sell. He also did not understand how to calculate ratio of food sales to alcoholic beverage sales. Mr. Shinall said Mr. Marvasty is charged with the responsibility of understanding the laws and obeying them and felt the license should be permanently revoked. Wade Lnenicka said the action tonight sets a precedent for future similar circumstances. He was sympathetic with the owners who can't always be present in the store and knew that employees to a certain extent had to be relied on to exercise their judgment. It is probably wise to have employees card everybody regardless of the appearance of age to remove any doubt. If this sale had been made by Mr. Marvasty, he would agree that the license should be revoked but under these circumstances felt that a 90-day suspension might be more appropriate. After further discussion, vote on the motion to suspend the license for 6 months carried 5-2, with Wade Lnenicka and Jack Shinall opposed. Mr. Hawkins stated the suspension would be effective from October 19, 1989, when the license was suspended by the Mayor. COUNCIL INPUT: Everyone welcomed Stan Hooks to Smyrna and expressed their confidence that he would do a good job. John Steely reported that our DUI Task Force made 67 cases last weekend including 7 DUI's and other miscellaneous traffic offenses. Jack Shinall read a letter from Barnett Bank commending Officers Folds and Littlejohn on their quick action on the attempted robbery at their South Cobb Drive branch. Bill Scoggins said the City just won two prestigious awards from Keep America Beautiful Council, which would be presented at the National conference in December. Wade Lnenicka thanked Cobb County for placing the traffic light at Ridge and Atlanta Road and reminded everyone of the school bond referendum coming up. Mr. Lnenicka also reported on library activities. Bob Davis requested that the STEP unit be assigned to work the intersection of Spring and Campbell Road following complaints about cars running the light there. With no further business, meeting adjourned at 10:26 p.m.