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08-20-1990 Regular MeetingAugust 6, 1990 meeting - continued destroyed in the minds of the people by this one establishment. Hopefully we can dissuade the owners from locating here. Bill Scoggins reported the State Swim Meet would be hosted at Tolleson Park this week and Sherry Reavis gave a full report on the meet and other events. Jack Shinall asked about the turn signal at Powder Springs and South Cobb Drive. John Patterson said originally the request was made for the signal to assist southbound traffic heading east on Powder Springs. It seems now that the predominant need is for westbound traffic. The request has already been submitted to the Departmentof Transportation Jack Shinall also stated he had received a complaint about the homes the City has purchased on Bank Street and asked that more time be spent in keeping the yards trimmed. Kathy Jordan asked about the creek work behind the homes on San Fernando Drive. Vic Broyles said it is about 40% complete; the weather has prevented them from completing the project. Kathy Jordan stated now that Windy Hill Road is completed there are no caution lights for the children who cross going to Belmont Hills Elementary and they have requested a crossing guard and would continue to do whatever was possible to improve safety conditions along that corridor. John Steely reported there would be a town hall meeting August 13th at 7:30 p.m. to talk about the East-West Connector and Dr. Doug Wiersig from Cobb County will be there. Mr. Steely said the residents in his ward do not a connector onto North Cooper Lake Road and also do not want the covered bridge area destroyed. Mayor Bacon acknowledged that he had received a petition just prior to the meeting tonight opposing any nude dancing clubs in Smyrna. Mayor Bacon reminded everyone to vote tomorrow on the run-off election and with no further business, meeting adjourned at 9:55 p.m. A. BACONS, MAYORS BOB AVIS, WARD 1 BILL ACOGGINS, A&D 3 JACK SH KATHY BROOKS JORDAN, WARD 6 August 20, 1990 The regular scheduled meeting of Mayor and Council was held August 20, 1990 at Smyrna City Hall. The meeting was called to order at 7:30 o'clock by presiding officer Mayor A. Max Bacon. All council members were present. Also present was City Administrator John Patterson, City Attorney Charles E. Camp, City Clerk Melinda Dameron, Parks and Recreation Director Sherry Reavis, Personnel Director Jane Mears, Police Chief Stan Hook, Library Director Laurel Best, Communications Director Steve Ciaccio, City Engineer Ken Hildebrandt, Fire Inspector Steve Gaddy, Community Relations Director Kathy Barton and representatives of the press. Invocation was given by Larry Wiley, pastor of Concord Church of God followed by the pledge to the flag led by Boy Scout Troop 749 from Mableton. a August 20. 1990 meeting - continued Mayor Bacon read a letter from W. 0. Bowman expressing his appreciation to the Smyrna Fire Department and emergency personnel who responded to a call for his wife on July 21st. CITIZENS INPUT: Alton Curtis, Ted Reed, Billy Rayburn, pastor of Sharon Baptist Church, Virginia Maddox, President of the Smyrna Business Association, Larry Wiley, pastor of Concord Church of God, Pat Lee Ross, pastor of King Springs Baptist Church, John Creech, pastor of Welcome All Baptist Church, Johnny Mackey, pastor of Church of Christ, Lee Speer, owner of McFrugal Auto Rental, Joe Lee Thomspon, Billy Fisher, Bill Alexander, Jolene Hagan and Jason Campbell all spoke in opposition to the application on the agenda tonight for Platinum Plus, a nude dance bar. Wade Lnenicka made a motion the rules be suspended to move the commercial building permits up on the agenda. John Steely seconded the motion which carried 7-0. COMMERCIAL BUILDING PERMITS: John Patterson stated that NHR Enterprises has requested a building permit for three temporary emission control stations located at Concord Square Shopping Center, Belmont Hills Shopping Center and Four Seasons Mall. These will be 6 month permits as allowed by the State. Jim Hawkins made a motion the permits be approved as they have been in the past seconded by Kathy Jordan. Jim Hawkins stated these are 6 month permits, but Mr. Holbrook will pay the same $175 business license fee that is being paid by the other permanent locations in the City. Jack Shinall said he would not support the motion because the temporary locations do not pay property taxes and they were in competition with others that pay taxes, business license fees and franchise fees through their utilities. Vote on the motion carried 6-1 with Jack Shinall opposed. PUBLIC HEARINGS• (A) Privilege license - liquor, beer and wine pouring - VFW Post 10799, 1000 Windy Hill Road John Patterson stated that Mr. Robert B. Humphries has applied to hold the license for the new VFW Post located in Belmont Hills Shopping Center at 1000 Windy Hill Road. The police investigation was favorable and there was no opposition. Mr. Humphries said this will be a two party organization; the Vietnam Veterans of America and the Veterans of Foreign War. Mr. Humphries said he was familiar with the alcoholic beverage license and would be directly responsible. He would be on the premises most every day, 7 days a week and introduced Carmello Infintima who will be the business manager. This will be a multi -faceted organization with membership open to any veteran. They will have bingo games and Mr. Hawkins reminded them that the City's bingo ordinance is probably the strictest in the State. Mr. Infintima said this is a 21,000 square foot building which has been extensively renovated. The VFW Post in Smyrna was chartered last August and this facility will be a post home to share with other veterans organizations. They will also provide family counseling, job placement, educational programs, job referral, library, museum and student programs. The building will also be available as emergency shelter for citizens of the area. After further discussion, Jack Shinall made a motion the license be approved. Wade Lnenicka seconded the motion which carried 7-0. (B) Variance - satellite dish at 3070 Lee Street John Patterson said Jeffrey and Fabrizio Tapia are requesting this variance for a satellite dish in the front yard at 3070 Lee Street This request was tabled from the July 16th meeting and there was no opposition. Mr. Tapia stated he had presented letters from two other companies stating there was no other possible location that could be used for the dish because of the number of trees in the area, and some trees and shrubs had already been cut to allow present installation. Jim Hawkins stated that Mr. Davis or Davis TV does not have a license to do business in the City and the dish was installed unlawfully from the beginning. Any grievances between the Tapia's and Mr. Davis would have to be a civil August 20, 1990 meeting - continued matter if they decide to take action against him to recover their losses. Mr. Hawkins said the satellite dish violates our city code and if it is allowed to stay it will set a precedent for others. Mr. Hawkins said he felt sure that their reasons for having the dish were valid and he sympathized with them but they must treat everyone fairly and equally under the law. Jim Hawkins made a motion the variance be denied. John Steely seconded the motion which carried 7-0. Wade Lnenicka also suggested that the City proceed to take action against Mr. Davis to collect any business license fees that may be due. (C) Zoning request for 2392 Spring Road - Office/Institutional to General Commercial. Bob Davis announced that Mr. Theodore W. Crolley with Synergy Marts Corporation had requested that the zoning of this property be withdrawn, in a letter dated August 10, 1990. (D) Variance request for 2392 Spring Road - two buildings per lot/accessory structure exceeding maximum size allowed. Bob Davis announced that the variance was also withdrawn by Mr. Crolley in his August loth letter. FORMAL BUSINESS: Mayor Bacon said that last Monday, he and John Steely attended a meeting regarding some roads in Ward 7 and there were probably as many people there as we have tonight. Everyone was extremely orderly and the meeting did not get out of hand. Mayor Bacon asked the large group present to be courteous to the applicants about to be heard. (A) Hearing request - Platinum Plus,'2282 Old Concord Road John Patterson stated that Mr. B. Don Gravley of 5835 Hill Road, Powder Springs, GA 30073 has applied for a business license, Inner Visions, Ltd., d/b/a Platinum Plus. Mr. Gravley goes through a 3 page explanation regarding live entertainment, live dance performances at his establishment to be located at 2282 Old Concord Road. Mr. Patterson stated he had denied the particular license and it was before Mayor and Council this evening in the form of an appeal. Mr. Gravley and his attorney, James R. Osborne were present. Mayor Bacon: This falls within Kathy Jordan's ward. Kathy I'll let you take it from here and you might just want to turn it over to Mr. Osborne for him to make his appeal. Kathy Jordan: Mr. Gravley, I guess one of the first questions I have is what marketing research firm did you use to come to the conclusion that this business would be profitable here in Smyrna. Don Gravley: I didn't use one. Kathy Jordan: Then how do you know it would succeed? Don Gravley: I never saw one fail yet. Kathy Jordan: As you see, we have a large crowd here tonight. I'm sure that is probably a deterrent to you. Don Gravley: Not at all. Kathy Jordan: Not at all. Why Smyrna? Don Gravley: Why not? Kathy Jordan: Why not Cobb County? Jack Shinall: Excuse me, would you please answer the question. Is that your answer to the question, "why not?". Don Gravley: We looked at some other locations and we found the building on Old Concord Road and decided on that location. John Steely: Did you look in Powder Springs? August 20, 1990 meeting - continued Don Gravley: Pardon? John Steely: That's where you are from isn't it? Kathy Jordan: Do you want to go ahead and make your presentation? James Osborne: Yes, thank you very much. Mr. Mayor, members of the City Council, I would like first to present to you a written reservation of our Constitutional issues that are involved here tonight and then I have a few remarks to make which... Mayor Bacon: Just for the record, Mr. Osborne, would you tell us who you are? James Osborne: Yes, my name is James Osborne, I am an attorney at law representing Inner Visions, Ltd. and B. Don Gravley. John Patterson: What law firm are you with Mr. Osborne? James Osborne: I am with the firm of Vinson, Osborne, Talley & Richardson located in Dallas, Georgia. Wade Lnenicka: Mr. Osborne, what is the office phone number there? James Osborne: The office number is 445-4438. Kathy Jordan: Do you want to proceed? James Osborne: Sure, I would love to. First of all, let me say that some of my remarks may be a little bit surprising to you. I first want to say that I appreciate the opportunity to be here. This is of course one of the things that makes our country so great is to have the opportunity to present different issues and have different aspects of our society heard out in public. Also I want to say that I am very proud to see the members of the audience who are here, citizens apparently of Smyrna, several preachers, several members of churches. I think that is one of the most precious rights that they have and that we all have as American citizens. I want to tell you first of all so that there won't be any questions I suppose, or I'll answer any questions as best I can, I may have to call on some of you to help me who are more familiar with nude dance clubs than I may be. Some members of the City Council may have been --the Mayor I believe has already acknowledged that he.... Mayor Bacon: That is not the issue here, whether I have ever been to a nude club or not. John Steely: Or anybody else --this is irrelevant and I don't appreciate you getting up here... Mayor Bacon: You have already rubbed me the wrong way and you don't want to do that. John Steely: That's right, and me too. James Osborne: Alright sir, well let me say this, the application for a nude dance club is exactly that. Basically as I understand Mr. Gravley's application, the type business that he would have would involve women who would be working at the club basically as in most of the clubs in this area, or in the Atlanta area, that the women dance to a variety of music that during portions of the routine they do disrobe. They become totally nude and .... the application first of all by Mr. Gravley specifically stated that in his application that some of the routines would include disrobing by the dancers. I would like to point out that in fairness to the people that have come here tonight as citizens and are interested and I believe that your own attorney would tell you this, that the issue of whether or not this is a protected expression under the First Amendment, for better or worse, is not a matter for this City Council or its Mayor to decide. I personally may or may not agree with what the courts have said regarding nude dancing. That is a matter of no consequence, just as your own personal views on this as to whether or not you would enjoy nude dancing or would not you would enjoy nude dancing has absolutely no relevance. The issues for better or worse have been decided by the court and I think that it is very unfair not to, for the City Council at least, August 20, 1990 meeting - continued to inform the citizens who are here today of that situation. One of the reasons that Mr. Gravley indicated that he was interested in the City of Smyrna for a place is the nude activity that has occurred in the City of Smyrna apparently for several years and is occurring right now, as I speak. This afternoon I had an occasion to drive around and visit several places including the following that offer nude information, nude tapes, nude magazines, and several of which I would contend to this city council and to the public who are here that this City Council and its executive officers and its police force are allowing obscenity in the City of Smyrna and I have brought some to the City of Smyrna tonight. Wade Lnenicka: Excuse me, I'm losing your point. Are you arguing because you found something obscene in your judgment, that we should allow this obscene type activity. James Osborne: Absolutely not. Wade Lnenicka: Is there a point to this related to this specific application? James Osborne: There certainly is. Several of the publications that are available of course as you may or may not be aware, and they are available at about half of the convenience: stores that I visited in the City of Smyrna including, well, Southern Tape & Video, the manager there informed me that he had over 100 nude films that are available for checking out at any particular time. In addition to the ones that are described as being X rated he has a numerous amount of films that are, fall under "R" which he said also involves nudity but not quite as much nudity. Mayor Bacon: Does Southern Tape & Video provide live nude entertainment? James Osborne: Not to my knowledge, no sir. Jack Shinall: Mr. Osborne, let me clarify one point before you go on. Did you actually view any of these tapes in Souther Tape? James Osborne: I have not viewed any X rated tapes. Jack Shinall: In a court of law your statement would be considered heresay, is that correct? James Osborne: Absolutely. Jack Shinall: OK, thank you. James Osborne: I would invite any of you to go and observe the tapes if you have any doubts. John Steely: Mr. Osborne, do you think that this would affect the health, welfare, and well being of our community, this club that you are proposing here? James Osborne: I think absolutely it could affect the health, welfare, and.... John Steely: In which way? James Osborne: Any time that there is an issue like this involved, where it involves a moral issue, and for many of us, nude dancing is a very important moral issue, for many of the people here and many people of the City Council. So, I think in that judgment, it definitely could, for better or worse, our courts have told us very specifically that nudity is not per se, obscene. John Steely: What's your answer Mr. Grravley? Don Gravley: I don't think it's obscene. John Steely: You don't think it's obscene? Don Gravley: No I don't. John Steely: How do you think it would affect the health, welfare and August 20, 1990 meeting - continued well being of our community? Don Gravley: If people want to come in to see it, they do. If they don't, they don't have to. John Steely: You don't think it would affect is any way? Don't you think it would affect our young people driving down the streets, seeing it? Don Gravley: How are they going to see it from the street? John Steely: You aren't going to have any advertisement? Don Gravley: I'm going to have some signs out front that says "adult entertainment". John Steely: You don't think that would affect anybody? Don Gravley: There's not going to be any nude women outside. Bill Scoggins: Mr. Gravley, could I ask you a question sir. Is that your signature on the bottom of that page? Is that you? (indicated yes) Let me ask you one more --I'm confused on your application. Is that your hand writing? (indicated no) But that is your signature? (indicated yes) Do you know whose handwriting this is stating there will be no alcoholic beverages. I'm confused about what you are applying for, sir. James Osborne: Yes sir, the application of course, we sat down with the officials of the City of Smyrna present ---I filled out the application and went over it with Mr. Gravley in the presence of the people in Business License and then he signed the application in their presence. Mr. Gravley has two applications, as you aware, before the city council. The one before you tonight, of course, is the business license at our request. There is also an application, should he receive his business license, that he would be asking in the future for the pouring license at this location as well. We do consider them to be independent applications and we would ---I can tell you the reason we applied in separate applications if you would like to know. Bill Scoggins: Yes sir, I need to know. James Osborne: Of course, the City of Smyrna, in its wisdom has provided for this type of activity in the General Commercial area. I don't know if it was this city council or who, but you provide for cabaret dancing which is of course, a cabaret as I understand it is a nightclub. You provide for several other things which of course includes dance studios and theatres. Now you also provided in Section 3-75 that it shall be unlawful for any licensee who sells alcoholic beverages by the drink to permit belly dancers, strip dancing, exotic dancing, or any exhibitions of any like kind. By application, of course, I support the City is saying you can't do this if you have alcohol. It's silent as to what you can do without, simply because of course, I think that it was recognized that this type of activity, whether or not you like it or I like it, is allowed. I see the very fortunate or unfortunate position that you members of the City Council find yourself in. As one of you pointed out about the alcohol license that was approved, like it or not, that is the law. And I would encourage this city council if it disagrees with the state of the law to try to do something about it. Bill Scoggins: One applications says you are asking for alcoholic beverages and the other says you are not; I just simply need to get that cleared up. James Osborne: We will take an application for a business license and operate without the alcohol license and then at such time as you --we will be happy with that --and then if he qualifies under your ordinances for a pouring license then he would seek that also. Mayor Bacon: Let me ask you something, who is Inner Vision, Ltd.? James Osborne: Inner Visions, Ltd. is a corporation that is composed of Mr. Gravley as the majority stockholder of the corporation; it's a closely held corporation. Mayor Bacon: Is that corporation filed with the Secretary of State? August 20, 1990 meeting - continued James Osborne: Yes it is. Mayor Bacon: Mr. Gravley, what do you do right now for a living? Don Gravley: I am unemployed. Mayor Bacon: You are unemployed. And your partner, what does he do for a living? Don Gravley: He is unemployed also. Mayor Bacon: Okay, you and I had a meeting along with your partner in my office some 3-4 weeks ago and talked about what you wanted to do. When you first sat down and talked to me, and Mr. Camp was there I believe, you informed me that you had no intentions of getting alcoholic beverages, that all you wanted was to just serve juice and cokes and things like that. Also, that you also planned to bring in male dancers on Monday and Tuesday, close for church on Wednesday and bring in female dancers Thursday, Friday and Saturday. Then about a week or so later you applied for a liquor license. So all that has changed in just a couple of weeks time? James Osborne: I think basically after reviewing your ordinances regarding pouring licenses and of course the case that for better or worse, we all have to live with here in Georgia in December of 1989, he has chosen to now apply for a pouring license. Jim Hawkins: I want to make one comment. On your revised application that you filed, you filed that on 7/31/90, is that correct? James Osborne: That's correct. Jim Hawkins: And that application includes a detailed letter that says the applicant proposes to operate a business offering live entertainment in the form of live dance performances as well as serving non-alcoholic beverages. Was that your intent to say that on the 31st of July? James Osborne: Yes, that is correct. Jim Hawkins: But yet we have another application that was filed on the 30th, one day before, for an alcoholic beverage license. It seems to me, sir, and I know you probably have a good answer --it also in the bottom says the ordinance providing for the issuance of business licenses in the manner of application for the same is amended to provide that any applicant who knowingly furnishes false information on the application for a business license shall upon conviction be subject to a fine. Did you not falsify this first application when in fact you had already filed for an alcoholic beverage license? Don Gravley: Absolutely not. That is when the application was filled out, it was not filed until the 13th. Jim Hawkins: It's dated 7/30. Don Gravley: That's right, that's when it was filled out. Jim Hawkins: Well, irregardless, you are totally contradicting what you originally applied for. You are applying for a non-alcoholic establishment, then you turn right around and file for an alcoholic establishment. I do take great exception to something you said, where you are painting a picture out that we have absolutely no choice; this is the law of the land and we have to allow this. I strongly disagree, I don't think that is what the law says but I guess we will have to resolve that in court. Jack Shinall: Mr. Osborne, I understand you are paid to represent your client to the best of your ability. I would like to ask you a series of questions, Mr. Gravley, and I would like for you to give me your statements in regards to the questions. Your attorney has already testified here tonight that the location would definitely affect the health, morals and welfare of the community. What is your background in the operation of this type of establishment, or any other type of establishment such as this? 13 August 20, 1990 meeting - continued Don Gravley: I don't have any background in it. Jack Shinall: You don't have any background --you can't come before us and say I've operated this type of club and I know I had this problem or that problem? Don-Gravley: No. Mayor Bacon: Mr. Camp has advised that Mr. Gravley needs to be sworn before he gives any more testimony. (Mr. Gravley was sworn by Mr. Camp) Jack Shinall: Mr. Gravley, since you are now sworn I will ask you the question once again. Do you have any background in the operation of this type of establishment or do you have any knowledge of the problems or potentials in the operation of this type of establishment. Don Gravley: I have no background in operating a club, I have done research on the club. Jack Shinall: And what did your research reveal? Don Gravley: Well I, you know, there is always problems with any business you do as well as a nude club. Jack Shinall: Is that the extent of your research? Don Gravley: I have done some research, I haven't done a whole lot, no. Jack Shinall: Secondly, we have heard testimony here tonight I think that can be proven in a court of law, that this type of club depresses the businesses of the adjoining property. Are you aware of that? Don Gravley: I don't think so. Jack Shinall: Okay. Are you aware of this type of club as we've had testimony here tonight, and which there can be additional testimony, tends to breed additional types of crime and diseases? James Osborne: We are not aware of any of those items. You know, Mr. Gravley has not indicated any such problems to me. Charles Camp: Mr. Osborne, if you want to answer all the questions that is fine but if Mr. Gravley is going to be up here he needs to answer himself. James Osborne: Alright, I will be glad to answer all the questions. Jack Shinall: Mr. Camp, are we not allowed to ask Mr. Gravley questions? Charles Camp: You are allowed to ask Mr. Gravley but Ms. Osborne is not allowed to answer for him. Jack Shinall: Mr. Gravley, are you aware of the problems of the additional violence created by these types of clubs? Don Gravley: I'm not aware of any such problems. Jack Shinall: Are you aware of the moral cost to the community of this type club? Don Gravley: No, I'm not aware of that. Jack Shinall: Are you aware that by taking office we are sworn to uphold the health, morals and welfare and to make laws and enforce those laws to protect the health, morals and welfare and our neighborhoods of this community? Don Gravley: I don't understand what you are saying. John Steely: Have you ever managed a business before, at all? August 20, 1990 meeting - continued Don Gravley: Yes. John Steely: What kind was it? Don Gravley: Building business. John Steely: Mr. Osborne, are you the county attorney for Paulding county? James Osborne: One of my partners is, that's correct. John Steely: Do you have an ordinance against this? James Osborne: No to my knowledge; if we did it wouldn't be valid. Mayor Bacon: Do you have an ordinance that addresses this type of business? James Osborne: Not to my knowledge. John Steely: You don't have any vacant buildings up there? James Osborne: I am sure there are. Kathy Jordan: The very question I asked you was if you had done any research into this type business and you said no and then when Mr. Shinall asked you a question, you said yes you had. Don Gravley: I'm sorry, I have done some research into the nude business. Kathy Jordan: How much? Don Gravley: I don't know how you measure how much. Kathy Jordan: What did you find out? Don Gravley: How the operations of the club is performed. John Steely: Are these dancers or entertainers or waitresses, whatever you call them, are they contracted? Don Gravley: Yes, they are sub -contracted. John Steely: So you don't actually employ them, per se? Don Gravley: No. John Steely: These are all just sub -contractors? Don Gravley: Right. Mayor Bacon: Will there be any nude male dancers up there? Don Gravley: No, not at this time. Mayor Bacon: You mentioned earlier that it was you and a partner --certainly this type of business is fairly expense. Do you have any silent partners we might need to know about? Don Gravley: No I do not. Mayor Bacon: It will be financed solely by you and your other partner, right? Don Gravley: Yes it will. Jack Shinall: Mr. Gravley, have you ever been convicted of a felony in connection this type of operation? Don Gravley: No. Jack Shinall: Your dancers are sub -contracted. How are they paid? Is" August 20, 1990 meeting - continued Don Gravley: They are paid by tips. John Steely: Do they pay you? Don Gravley: No sir. Kathy Jordan: You are aware if this license is eventually granted, and you acquire the alcoholic beverage, that every employee you have there since it is a privilege license, will have to be background checked by the Police Department. Don Gravley: Yes mam, I am aware of that. Kathy Jordan: Are you aware of the extensive research? Don Gravley: Yes mam. Mayor Bacon: In your letter to us, you say that under our license schedule there are several categories that this would fall into; dance studio, theatre, others, cabaret dancing, and I guess you have done the research, I haven't. In any of those categories, does it allow for disrobing? James Osborne: There is no description of disrobing in your ordinance. Of course the disrobing aspect of it is what has been ruled on by the courts on numerous occasions. Wade Lnenicka: Mr. Gravely, just to verify the information on your application if I may, it lists your home address as 5835 Hill Road, Powder Springs, home phone number 439-8526. It doesn't give any address or phone number for your partner, Mr. Dobbs. Do you have that information for us? Don Gravley: I was not aware that it was necessary that it be on the application. Wade Lnenicka: I would like to have that on file. If we are going to grant, or be asked to grant a business license I think we have a right to know who we are granting a business license to. James Osborne: We would be happy to provide that for you. Jack Shinall: Mr. Osborne, has Mr. Dobbs been convicted of any felony in conjunction with this type of operation. James Osborne: Not to my knowledge. Kathy Jordan: One thing I noticed on the very first application that was filled out was left so blank, we could not get anything out of it. No employees --it was terrible to apply for a business license with one filled out like that. And then to have another one come and then to have even another one come asking for the alcoholic beverage. Rumor that the juice bar that you had planned on opening was going to attract minors? Don Gravley: No, if an 18 year old is a minor --if there is no alcohol an 18, 19, 20 year old guy can get in. Kathy Jordan: And that's not a detriment to the health, welfare of our young people. James Osborne: Let me say this mam. You asked me before and I responded, I think very candidly, that to a lot of people, perhaps to many of the members of the City Council, very obviously to a lot of the people who are here and as a personal decision of many members of our society, this would not agree with the moral views of probably a large percentage. I don't know what the exact percentage is, I don't have any way of telling that. And so to that extent, I'm saying yes it would impact on the moral beliefs of a substantial percentage of the citizens of Smyrna and of our country. Now whether that is a, an item --you know moral issues are the very heart of our society. Nobody disagrees with that. But for better or worse I think my point is that the people who have the right to say so and they're for the most part, elected by us, the members of our Supreme Court in Georgia and the members of the Federal Court who of course are appointed by our elected President have said over and over that this is a protected August 20. 1990 meeting - continued form of expression under the first Amendment. I'm not saying that I personally agree with that and I'm not trying to force it upon anybody on the City Council or the members of this community. I am facing the fact that that's what they've said. You know, very simply. There were several other points, I can continue to answer:questions that I wanted to make at some point in time if you would allow.me to and then respond to any more questions that you have. Kathy Jordan: Okay, go ahead. James Osborne: Basically, my understanding is and I received a letter today from Mr. Patterson, just so that the members of the City Council will know, and the community, what's going on, that reads as follows: "Dear Mr. Gravley, the business license application dated July 31 is denied based upon the proposed business location's building non-conformance to certain building codes. Additionally, there seems to be a conflict between the business license application and the application for an alcoholic beverage license. As soon as these matters are resolved, resubmittal is proper." When I questioned Mr. Patterson and the personnel in your business license department in as courteous and forthright manner as I knew how, whether or not this license was denied based upon the fact that there was nude dancing, I was assured that was not the case. So I think the members of the public and the council need to know that is, at least the administrative decision. Kathy Jordan: That building has been vacant for over a year. It is no longer grandfathered under any existing conditions previously, it now must fall under the Southern Building Code and be brought totally up to par before any kind of license can be issued there. James Osborne: Mr. Gravley is prepared to spend whatever amount of money that the City requires under the current building codes, fire codes and will comply with whatever legally are.on your books regarding the safety of the building. Mayor Bacon: Is Mr. Gravley prepared or is Mr. McCurdy prepared? James Osborne: Well I think he has had some discussions with the land lord on certain things and it is my understanding that the sprinkler system, which is about a $15,000 item, I think that the landlord has indicated his willingness to install that since of course it would be of benefit to him also. John Steely: I think a sprinkler system is minor isn't it? What about your water main? James Osborne: Whatever your permit department indicates is proper, whatever your building code requires and your fire code requires, he is willing to comply with anything that is legally required of him to proceed. Jim Hawkins: How much more do you like completing your presentation? James Osborne: Well, I'm happy to answer your questions, I could probably finish up pretty rapidly here if I could have a space of about 5 minutes then I would be glad to take some more. Basically, of course, we do feel like that the law, like it or not, is open to this type operation in your General Commercial zone. Now there is some question that I see as to whether or not the citizens of Smyrna or the City Council has properly adopted any zoning ordinances in the City. There appears to be some question of that. So it may be that Mr. Gravley's location and every location in the City of Smyrna simply has no zoning, which I will be happy to answer any questions on that in'just a second. Regardless of that, if there is zoning or if there is not, for better or worse, whether or not I like it or you like it, it is a protected first amendment expression. Now, you know, if anybody asks me, did the framers of the Constitution, if Benjamin Franklin, George Washington and people who framed our Constitution had any thoughts of protecting nude dancing, I would have to say it's stretching the imagination, perhaps for Ben Franklin based on his reputation at least in the city of Paris when he was there. But for the others, I sincerely doubt it. You know this is something that our Federal courts .and our State Supreme Court have decided and so, you know, if we are legal, Mr. Gravley wants a license. If we're not, then of course he /-7 August 20, 1990 meeting - continued will have to abide by that. We simply hate to go around the mountain on issues that have been decided already, is basically the situation. Two or three points that I did want to make, basically we would hope that the representations from the City Administrator from the building code folks down the hall from the permit office, from the fire people, that if he presents to them the amended, the requirements, that he would be allowed his license since it does impact on the first amendment rights as the court decided. Secondly, I would like to again of course offer for your information the fact that there is, what I consider to be, clearly obscenity. You know the courts have struggled with the definition of obscenity and each individual person would have a different idea on what is obscene. But there is obscenity going on in the City of Smyrna right now. I think that the citizens of4 Smyrna need to do something about it just as they have come up here trying to get you to do something that they perceive to be wrong and I am glad to see them out here; I am proud that they're out here and I think you should be glad that they're out here too. But, something also should be done about the obvious pornography and obscenity that exists right now in the City of Smyrna. I don't know when the last time, I believe that my understanding is that the City of Smyrna has a Solicitor and I don't know when the last time if ever he has prosecuted any obscenity cases. But that may be, he may do it all the time. Finally, I would say that, you know, Mayor Bacon in all respect to you, I'm sorry if I rubbed you the wrong way and I want to address you directly on this, but I think the citizens who have come out tonight on this issue would be interested in knowing --you know my opinions or Mr. Gravley's are rather unimportant to them and so I think they might want to hear your reasons for opposing this if you do. Jim Hawkins: I opposed it because in my opinion you falsified an application. Personally, I think the City ought to proceed forward with fining you for submitting a false application because on your first application you said you were going to serve juice and in an application, whether you filed it or not, you had intentionally filled it out one day prior to submitting this application and in my mind it's a false statement. Number two, I oppose it because the building doesn't meet code and those are the reasons I am opposing it. I want to ask you Mr. Osborne, you talked so much about being proud of folks being here, I just want to ask you a personal question. Are you proud of what you're doing tonight? James Osborne: Yes sir, I certainly am. As an attorney, sworn to uphold the Constitution and also sworn to provide representation, I am very proud to be involved in what I consider being an interesting first amendment case. My personal beliefs are completely irrelevant. Wade Lnenicka: Mr. Osborne, I have a couple of questions if I may. Have we ever met either personally or professionally in any capacity at any time? James Osborne: Not to my knowledge. Wade Lnenicka: Mr. Gravely, do you know me or my family. Have we ever met in any capacity prior to this. Don Gravley: Not to my knowledge. Wade Lnenicka: Yet it's also true that you have filed suit in Court against me as a member of this council. Is that not true. James Osborne: The application is against the City of Smyrna. Wade Lnenicka: Does it name me? James Osborne: No. Wade Lnenicka: Is that true, Mr. Camp. Does it not name any of these council members? Charles Camp: I don't think it names individual council members in an individual capacity. I think it names the City Mayor and Council, and the City Solicitor by the way. August 20. 1990 meetina - continued Wade Lnenicka: As an aggregate. So is there any reason from a personal standpoint, wonder why you sued me before you ever met me or heard any of my reasons whether I am for or against what you are asking. James Osborne: I will be glad to respond to that sir. The reason that the suit was filed when it was and as a point of information you might be interested in knowing this also. Before this, I believe it was filed before the --we had received information. We met with the Mayor and City Attorney on July 23, 1990. At that time we discussed with them in a very open and forthright manner exactly as I have tried to do here tonight exactly what Mr. Gravley wants to do. At that time they indicated they would get back to us with a response in a couple of days. There was no indication at that point and time whether they were --they didn't know, the only response we had was, from Mayor Bacon, was well, you know there are more churches in the City of Smyrna than there are liquor stores and there are a heck of a lot of liquor stores in the City of Smyrna. Mayor Bacon: That's a lie --that is a lie. That is not what I said. It might be a true statement, but I did not say that. That's all that I said? I think I told you point blank we did not have a category for the type of business you wanted to open up. Is that not true? James Osborne: Oh yes. Mayor Bacon: And is it not true that you sat in my office and told me that you weren't going to have liquor and a week later you applied for liquor, is that not true? James Osborne: Yes sir, that is true. Mayor Bacon: Okay. James Osborne: But I take exception respectfully to you for... Mayor Bacon: Well you didn't start off very good with me tonight to begin with, but I'm going to tell you, when you make a statement like that I did not make, that is a false statement. James Osborne: Okay, well, my recollection is sir, with all respect to you, is that the statement was made. I don't really know what difference, if it's a true statement... John Steely: What does that have to do with this? Wade Lnenicka: You still have not answered my question about why you sued me after having never met me. James Osborne: Alright, I'm trying to tell you the scenario of what went on. Wade Lnenicka: I'm interested in a brief scenario for these people here. James Osborne: Well if you want to,know the full scenario or if you want to know, I can abbreviate it, I can tell you what happened or a brief portion if you would like. Wade Lnenicka: Well, without building a watch, tell me what time it is. James Osborne: Alright sir, we met with the Mayor and City Attorney and they indicated that they would get back in a couple of days and tell us basically what the status was. Several days went by and I could not get any response from the representatives of the City, so when I came back over they indicated on July 31st that they needed more questions. I spent about 4 hours with the people here in the license. Wade Lnenicka: You withdrew your original application and resubmitted? James Osborne: No, no, there is no withdrawal on either application. We have not withdrawn either application. Wade Lnenicka: Is this application before us tonight not the second time you had worded it? Iq August 20, 1990 meeting - continued James Osborne: Well if you want to ask me a lot of questions it is going to take a little longer for me to explain, in all fairness. Basically then, we submitted our second application, answered everything possibly that we could do. We tried to answer every question and we did answer every questions that any official here to our knowledge asked. At that point and time I received correspondence from the City Attorney's office on August 3rd that, to the best of my knowledge, the City will not be able to address your item at this coming Monday night's agenda meeting and then he went on to say it's also my understanding that a letter will be forthcoming as early as Monday from the City that will address your requested license. That never came forward. We simply got the distinct feeling that it was not to be. And of course, basically, we had requested that it be on the agenda and for whatever reason it was removed from the other agenda that you had. I understand that you had a large agenda, which is certainly a legitimate reason if that is the case. But, we feel like, with all respect to the members of the City Council and to the Mayor that we have, that the legal status is, that this man and his company are entitled to the license. Wade Lnenicka: But you have the City under suit now? James Osborne: That is correct. Wade Lnenicka: Could you explain the nature of your constitutional objections. I am always interested when somebody objects to the Constitution and am not sure I understand what this paper is that you presented to us at the beginning of the meeting. James Osborne: That's basically reserving any constitutional rights, if you --I don't think it was absolutely necessary to submit any reservation, I think we would have our constitutional rights reserved even if we didn't submit it, but with all caution I'm saying we are reserving our right under the 14th amendment, the 5th amendment, any other amendments that give this gentleman and his company protection, that by our being here we are not waiving those, that we reserve those if necessary. And I would think you get those on many zoning... Wade Lnenicka: Mr. Osborne, I can't picture anybody taking any rights from you under the Constitution, ever. As a lawyer, certainly you are sworn to uphold the law and defend the law and practice the law in accordance with --I'm sure you could tell me better than I could define, I'm not a lawyer, but the Constitution of the United States and the laws of the United States --I'm sure you are member of the bar and the principles of the bar, is that not true? James Osborne: Absolutely. Wade Lnenicka: Do you agree that the Constitution of the United States gives the states certain rights and powers unto themselves, separate from the Federal government, the right to do certain things or to take certain steps which are not, or within the normal purview or right of the Federal government James Osborne: Well actually, the Federal Constitution grants specific rights to the states, it simply reserves any rights to the states that are not specifically designated and reserved to the Federal government. Wade Lnenicka: Would not the foundation of an individual state's rights be that state's Constitution, which would define the powers and authorities and rights of the state? James Osborne: Well, if they're not pre-empted by Federal rights, that's right. The Georgia Constitution, the first amendment of the Georgia Constitution has been interpreted :even more broadly than the first amendment of the Federal Constitution, for better or for worse by the Supreme Court. Wade Lnenicka: Then the State is governed by the State Constitution? James Osborne: And the'Federal Constitution, yes. Wade Lnenicka: Within the State Constitution, does that not give the power to or allow the State to charter cities and for cities to be August 20, 1990 meeting - continued chartered? James Osborne: That's correct. Wade Lnenicka: And that charter then to give cities certain rights? James Osborne: Yes, the cities would have any rights set forth in its Charter. Wade Lnenicka: And under the rights of the City would include a number of things, such as zoning, or again the protection of property or lives or health, welfare, morals, etc. of its citizens, would it not? I mean, this body would be authorized to act in those kinds of areas? James Osborne: Certainly the City has a duty, you people on the City Council have a duty to act as you see best for the morals of the City of Smyrna and the health and safety and welfare of the City of Smyrna. You are constrained --the ordinance creating the City of Smyrna does not have the level of authority or the legal power that is contained in the Constitution. Wade Lnenicka: I understand that State law is superseded by Federal law and City law is sometimes superseded by other laws. But earlier I thought you had said this body did not have the authority to address some of these issues and while I recognize that Federal rights can sometimes take precedence over local rights, I do want to state for the record that I believe we have the right to address the kinds of issues that are involved in this kind of application. James Osborne: I think you do as long as you don't infringe upon the State or Federal Constitution, that's true, I would agree with that. Charles Camp: Mr. Osborne, you stated that you are a member of the bar and I believe you stated you filed a suit on behalf of Mr. Gravley and you are the attorney of record. As you know, I am the attorney of record for the City and I have no problem with you assisting your client in making application. But on this license that you sued us on, I find it rather interesting though that you tried the case in thepapers since the day you've filed it, number one. You don't know the last time the City Solicitor prosecuted an obscenity case, yet you've sued the City Solicitor, you've spent another 6 hours including lunch time today after you were denied the license, questioning the employees in the City as to why they refused the license. You have implied on many occasions including tonight that if you are going to exclude it because of nude dancing then do so, and you know as well as I do that that's not a valid reason. And you said that the city zoning ordinance is not of any effect. I wonder what they have to do with this, we've had no explanation. But sir, I submit to you that I would not come to Paulding County and sue the county and then go in and question those employees of the county without the attorney's presence and I require you to do the same. James Osborne: I will be happy to do so if that is what you would like. Charles Camp: That is what I require. James Osborne: As soon as your administrator indicated that he did not want me asking the city officials to show me any documents, I think that certainly my client has a right to see any city documents that are available and that is basically what... Charles Camp: Mr. Osborne, for 6 hours in City Hall you couldn't get a document or have somebody to call me to come up and get it for you? I don't believe that. John Patterson: For the record Mr. Osborne, just because, your court reporter was here earlier, let me just make it clear that we didn't deny you access to any records. I think I showed you where the two file cabinets were that had every business license application from A to Z, told you that we would charge you 25 cents a copy for any copy that you wanted under the Open Records Act. You are entitled to those. But after spending the time, 6 hours of our city employee's time, and I don't want to use the word badgering them, because they came and asked me to talk to you and to ask you to limit your search and your questions. They had other August 20, 1990 meeting - continued responsibilities --you came un-announced this morning. You spent our time today after, as our attorney has said, after you had filed suit against us. You know, I asked you politely to refrain and you refused. You asked me if I was going to limit or exclude your addressing our employees. I told you no, I would not, but I wish that you would limit your activity. Then I instructed them not to speak with you. For the record, my goodness, let's be truthful and open and honest with one another and not couch it in innuendo, stories and lies. James Osborne: Well you have a perspective, sir, that I'm trying to respect. I certainly don't see it that way and I think if you would ask the employees here tonight, I don't know if they're here or not but I would be happy hear from them. Charles Camp: In the future, Mr. Osborne, you talk through me, and that's all. James Osborne: I will be happy to do so. Jack Shinall: I think the court establishes and made specific for you to secure any documents that you wish, Mr. Osborne. James Osborne: Alright sir. Mayor Bacon: Any other thing, Mr. Osborne, that you would like to say? James Osborne: Not unless you have anything else. Mayor Bacon: I have one question. Have you ever inquired at Cobb County about the possibility of opening a similar establishment in Cobb County? Don Gravley: We talked to the Police there. Mayor Bacon: Would you share with us what the police told you? Don Gravley: Since I'm under oath I don't want to go fully into it because I don't totally recall everything. You know, we asked them if we opened a nude dance club if that would be breaking any laws. Mayor Bacon: And what did they tell you? Don Gravley:- They said no, none that they were aware of. Mayor Bacon: I guess amongst a lot of other things, a problem I have is I just have a feeling that anybody that wants to make an investment like this into a company or a business, that would come in and fill out an original application on the 23rd of; July for the type of business as - "Other, sale of non-alcohlic drinks and live performance" and to say they are going to have one chair in their establishment, that's all, one chair, that you are sort of ill prepared. I think you came down here to jump on a small city like Smyrna and just see how far you could push us and it will not work. I'm going to "tell you that right now. James Osborne: I would just like to say I thank the Mayor and City Council and if there has been any misunderstandings I certainly apologize for those but I certainly can tell you that there were no statements --I didn't mean to misquote anybody if you feel like you were misquoted. But I do appreciate the chance to appear before you on what is obviously a very sensitive, very difficult topic and, but we appreciate... Mayor Bacon: Why do you say this is so sensitive --this is a normal council meeting --these people normally show up here. James Osborne: Thank you very much for your time. Kathy Jordan: Being no other questions I move that we uphold the City Administrator's letter dated August 20th that the businsss license application be denied based upon the proposed building location being in non-conformance to certain building codes in the City of Smyrna and the Southern Building Code. Bill Scoggins seconded the motion. Jack Shinall amended the motion to add to the fact that the testimony given here tonight by the applicant's attorney himself, that the club August 20, 1990 meeting- continued itself would definitely affect the health, morals and welfare of the community. Wade Lnenicka: Kathy, by reference to Mr. Pattersons letter of this date, you are also, I assume including his denial based on the conflict in information between the application for license and the application for the alcoholic beverage license. Kathy Jordan: Just to the building codes at this present time. Jim Hawkins; I would make that a second amendment then, that another reason for denial is the conflict of information that is contained in the original license and the one with the alcoholic beverage license. Wade Lnenicka: I will second the amendments. Vote on both amendments carried 7-0 and vote on the main motion to deny the request also carried 7-0. Mayor Bacon called for a 5 minute recess and Kathy Jordan excused herself from the remainder of the meeting. (B) Ordinance Amendment - roads, storm drainage and construction John Patterson stated amendment of the city ordinance would allow us to update our design specifications for roads, storm drainage and construction and bring our standards up to date and help reduce our liability in accepting underdesigned projects. This amendment is in compliance with Cobb County's Design Specifications. Deficiencies in the current ordinance have cost the City money in the past to repair damaged streets and subdivisions with underdesigned storm drainage. Bob Davis said the committee had reviewed the amendment and made a motion it be approved as submitted and that Municipal Code assign the proper numbers for consistency in our ordinance. Wade Lnenicka seconded the motion which carried 6-0. (C) Bid opening - soccer field lighting, Jonquil Park Bids for the new lighting of the soccer field at Jonquil Park were opened, read and recorded as follows: Athletic Lighting $16,975.00 AAA Electrical $24,270.00 Lynn Lighting $20,450.00 Matt Davis $19,750.00 Wiley & Wiley $24,600.00 Bill Scoggins made a motion the bids be turned over to the committee for their recommendation back to council at the next meeting. John Steely seconded the motion which carried 6-0. (D) Validation of signatures to annex 4.67 acres in LL271 John Patterson stated that Lucille Pilgrim has requested the annexation of of this property and Mr. Camp read the legal description 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 271 of the 17th District, 2nd Section, Cobb County, Georgia and being more particularly described as follows: BEGINNING at a point on the west land lot line of Land Lot 271, said point being 200 feet from the corner common to Land Lots 271, 272, 233 and 234; from said point of beginning continue along said land lot line North 88 degrees 32 minutes 06 seconds East a distance of 591.69 feet to an iron pin found; thence running South 2 degrees 16 minutes 41 seconds East a .93 August 20, 1990 meeting - continued distance of 400.99 feet to an iron pin set; thence running South 86 degrees 41 minutes 04 seconds West a distance of 331.63 feet to an iron pin set; thence North 37 degrees 59 minutes 52 seconds West a distance of 248.16 feet to an iron pin set; thence North 76 degrees 47 minutes 17 seconds West a distance of 130.06 feet to an iron pin set; thence North 00 degrees 58 minutes 05 seconds East to an iron pin set at the point of BEGINNING. WHEREFORE, THE UNDERSIGNED HEREBY APPLY FOR SUCH ANNEXATION. Witness the hands and seals of 60% of the record title holders of the land described above: s/LUCILLE PILGRIM Jack Shinall made a motion the petition be validated and the public hearing date set for September 17th. John Steely seconded the motion which carried 6-0. (A) 1991 pickup for Utility Services Jim Hawkins made a motion the bid be awarded to Days Chevrolet, the low bidder at $10,820.89. John Steely seconded the motion which carried 6-0. (B) Refuse compaction unit Jack Shinall made a motion the bid be awarded to Fouts Brothers for $71,534.75. Jim Hawkins seconded the motion which carried 5-1 with Bill Scoggins abstaining. (C) Copier for Public Works Jack Shinall made a motion the bid be awarded to Danka Business System for a Savin copier at $4,194. Jim Hawkins seconded the motion which carried 6-0. �- (D) Landscape truck for Street Department Jack Shinall made a motion the bid be awarded to Fouts Brothers at $33,004. Jim Hawkins seconded the motion which carried 5-1 with Bill Scoggins abstaining. (E) (3) pickups for Public Works Jack Shinall made a motion the bid be awarded to Wade Ford at $34,386. Jim Hawkins seconded the motion which carried 6-0. (F) Water meters Jim Hawkins made a motion the bid be awarded to Davis Meter Company, the overall low bidder. Wade Lnenicka seconded the motion which carried 6-0. (G) Copier for Detective Division John Steely made a motion the bid be awarded to Danka Business Systems after a comparison of the cost between this Savin copier and the machine just awarded for the Public Works Department for justification of the price differences. Bill Scoggins seconded the motion which carried 6-0. CONSENT AGENDA: (A) No parking signs between 5178 and 5155 Afton Way (B) Budget adjustments Bob Davis made a motion the consent agenda be approved. Wade Lnenicka seconded the motion which carried 6-0. COUNCIL INPUT• Wade Lnenicka commended the Library staff for another record high circulation in July and also recognized the business groups who made the Summer Reading Program possible. August 20, 1990 meeting - continued Mr. Lnenicka asked the citizens to continue supporting our servicemen and reservists who have been called to the Middle East and asked John Patterson to look into an ordinance providing for a waiver of connection fees for utility service upon their return. Bill Scoggins stated the Parks Department just completed the State Swim and Dive meet with several thousand people attending and called on Sherry Reavis for a report. Jim Hawkins said he commended the people here tonight who care for the overall well being of our community because they should have a voice in this matter. Jack Shinall said he thought it was evident that the applicant for the nude dance bar had no feelings for our city and thanked those that came. Mr. Shinall also reported that we should have a test recycling program in place soon. John Steely read a letter for Kathy Jordan regarding our request for school guard crossings and stated that it appears the School Board will provide guards on Windy Hill at San Fernando and Burbank Drive before school starts. John Steely said there was a tremendous turnout for the town hall meeting last week regarding the East/West Connector and petitions were presented with over 1400 names on them. Mr. Steely said at the next meeting he would request that the closing of North Cooper Lake Road at the East/West Connector be placed on the agenda. Police Chief Stan Hook gave a report from the Police Department. John Steely also stated that the Street Department would be installing "rumble bars" at the intersection of North Cooper Lake and Highview Drive to slow traffic. The STEP units will also be watching this intersection closely. Mayor Bacon stated that Kathy Jordan left the meeting early tonight because her husband Lee is in the hospital scheduled for open heart surgery on Wednesday. Mayor Bacon also thanked those at the meeting for being well behaved and stated he was concerned over a business that would damage the image we have tried so hard to improve. Mr. William Blankenship thanked the Mayor and Council for the cooperation he received from all departments of the City after recent storms which caused extensive damage to his home. With no further business, meeting adjourned at 10:06 p.m. A. MAX BACOON, MAYOR A01 , Z,2?x� BOB VIS, WARD 1 BILL SCOGGINS, 3 WADE LNENICKA; WAS 2 JACK SHIN WAPjA 5 KATHY BROOKS JORDAN, WARD 6 J = W as