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04-07-1988 Special Called MeetingApril 4, 1988 - continued Jack Shinall made a motion the consent agenda be approved. Bob Davis seconded the motion which carried 6-0. COUNCIL INPUT: Jack Shinall reminded everyone of the choral presentation by Wills and Campbell High Schools at Cumberland Methodist Church, to benefit the Jerry Mills Fund. With no further business, meeting adjourned at 10:50 p.m. BOB BETENBAUGH, FoKhMES M. HAWKI14S, WARD. KATHY BROOKS JORDAN, WARD 6 April 7, 1988 A special called meeting of Mayor and Council was held April 7, 1988 at Smyrna City Hall. The meeting was called to order at 6:30 p.m. by presiding officer Mayor A. Max Bacon. All council members were present except for Kathy Jordan. Also present was City Administrator John Patterson, City Attorney Charles E. Camp and City Clerk Melinda Dameron. GRIEVANCE APPEAL - THOMAS S. MAHANEY John Patterson said that Thomas S. Mahaney had filed a grievance against the City due to his transfer from the Suppression division of the Fire Department to the Fire Prevention Bureau. He felt the transfer was improper and has petitioned through the proper channels to appeal the transfer, first to Chief Williams, then the Fire Committee and now to full council. Lieutenant Mahaney was sworn in with Chief Larry Williams, Captain Jim Ruffner and Lieutenant David Hancock. Lieutenant Mahaney presented a copy of Public Law 99-150 concerning discrimination against an employee with respect to wages or other terms or conditions of employment and a copy of case 73562, Ellis -Adams vs. Whitfield County Board of Education concerning the transfer of an employee as the basis of his appeal. Lt. Mahaney said he felt he had been discriminated against under the Fair Labor Standards Act and his transfer to the Bureau of Fire Prevention was retaliatory on the part of Chief Williams because of the pending law suit between some members of the Fire Department and the City. Lt. Mahaney said Chief Williams did not ask him his opinion or anything before making the transfer and he and his lawyer assumed that because of that, the action was retaliatory. His lawyer has filed a suit on this issue and advised him to go through the appeal process. Lt. Mahaney said the situation could be remedied tonight and go no further if council voted in favor of his appeal. Lt. Mahaney said he did not disagree with the transfer; Chief Williams has the authority to do that but he was saying it was done because of the law suit that he is a party to. The law suit was filed over the deduction of sleep time and meal time in the Fire Department which is against the law and they feel they are entitled to overtime pay for that. Jerry Mills asked Lt. Mahaney if he had any proof he had been discriminated against because they would need that in making a decision. Lt. Mahaney said the only thing he could go by was the Public Law 99-150 Section 8 paragraph that he had presented to council. April 7, 1988 - continued Attorney Camp asked if anyone else had been retaliated against and Lt. Mahaney said no, not that he was aware of and his salary was not reduced. Mr. Camp asked what, exactly, was to his detriment. Lt. Mahaney said the transfer would not allow him to work a part time job and although he does not have a part time job at the moment, he did have. Jerry Mills reminded Lt. Mahaney that he had a full time job with the City that had nothing to do with the part time work. Lt. Mahaney said he disagreed with that and he did not work for the City full time, because according to this, the City would have to pay him more money. Attorney Camp said it would appear to him that Lt. Mahaney got more or less a promotion because the Fire Marshal's job certainly carries more prestige. Following a question from Mr. Camp, Lt. Mahaney said he thought anybody involved in the law suit would have felt the same way if they had been transferred. Mr. Camp asked how many people were involved in the law suit, and Lt. Mahaney said there were at least 25. Mr. Camp said it would handcuff the department if Chief Williams had to eliminate transfers for those people and told Lt. Mahaney that he had to show that discriminatory action had been taken against him, not just the action in general. Jerry Mills also stated he did not understand the basis for the grievance and it would be left up to the courts to make a decision on the law suit. Mayor Bacon asked Lt. Mahaney if he would have filed the grievance if he had been transferred to another station. Lt. Mahaney said he would not, as long as he kept the same hours and working conditions. Following questions from Jack Shinall, Lt. Mahaney stated he did not have a part time job when the move was made, his pay was not cut in any manner, and he had not tried to obtain a part time job on weekends or evenings since the transfer. Concerning responsibility, Lt. Mahaney said responsibility would be about equal. Chief Williams said that several changes he had wanted to make in the department for the last year he had not made, because of the threats he would hear about action on the law suit but it reaches a point where the protection of life and property of the citizens of the city are the primary concern. This is one of those cases. Lt. David Hancock was in the Bureau where he served for approximately 1 1/2 years and he had requested a transfer out of the Bureau on a number of occasions. This was done in writing and verbally. Lt. Hancock had some performance problems and had some conflicts with the Fire Marshal and after consideration it became evident it was time for some changes. Chief Williams said Lt. Hancocks skills in the Fire Suppression division outweigh those of Lt. Mahaney and feel that Lt. Mahaney's administrative type skills outweigh those of Lt. Hancock so this is a case of putting the best man in the best job to serve the citizens of Smyrna. Chief Williams said Lt. Mahaney's record in his office does not indicate any part time employment, since that is always a concern of firemen, nor was he aware of Lt. Mahaney ever having a part time job. For that reason, that was not a concern and there was no consideration given to that issue. Chief Williams stated that Lt. Mahaney's performance while in the Bureau has been very good and they are quite pleased with his efforts. Basically, Lt. Mahaney was transferred in the best interest of serving the citizens and in his opinion, was best qualified on the administrative end, with some weaknesses on the suppression end. Jack Shinall said he did not think part time jobs should be considered in any transfers; the firemen work for the City of Smyrna and we pay their salary every day. We are their full time job. Attorney Camp asked Chief Williams if he had made other transfers within the department and the answer was yes. The law suit was not a consideration in any case. Chief Williams said he had been advised against any retaliation of any type. John Patterson said that he and Chief Williams had consulted with the attorneys representing the City in the FLSA suit many -times regarding evaluations, disciplinary action or any other action dealing with the people involved in the suit to be sure it is appropriate. Bob Betenbaugh asked about the initial cause of the law suit. Attorney Camp said the City requires the firemen to work 24 hours and 15 minutes on their April 7, 1988 - continued shift for early relief and sleep time is deducted from their pay. Therefore the City does not pay overtime. Their suit is based on the fact that they are losing overtime under the Fair Labor Standards Act. Captain Jim Ruffner was called and stated he had no knowledge about the transfer of Lt. Mahaney being retaliatory. He is doing an outstanding job in the Bureau and his performance would be rated as outstanding. When asked if Lt. Mahaney was the most qualified person for the job, Captain Ruffner said he was one of the better qualified people in his rank; it would be impssible to say he was the best. There are eight lieutenants in the department and any should be able to do the job. Captain Ruffner said the pay is equal for this job and the one Lt. Mahaney was transferred from, but in terms of responsibility and prestige the transfer would be a step up. Bob Betenbaugh asked Captain Ruffner if he felt the change had improved the department. Captain Ruffner said it has improved the Bureau. There was some discussion about Lt. Hancock's transfer and Captain Ruffner said he thought Lt. Hancock had requested the transfer out of the bureau. Captain Ruffner said he did write a letter requesting that Lt. Hancock be transferred. Lt. David Hancock was called and asked if he had requested to be transferred out of the Bureau and the answer was yes. Mayor Bacon asked if he had any knowledge of the transfer being for punishment and Lt. Hancock said he had no knowledge of that. Attorney Camp asked if he would consider the transfer a lateral move and the answer was yes. After further discussion, Jack Shinall made a motion the grievance filed by Thomas S. Mahaney regarding discrimination over his transfer to the Fire Prevention Bureau be denied. Bob Davis seconded the motion which carried 6-0. APPEAL OF ALCOHOLIC BEVERAGE LICENSE DENIAL FOR 777 FOOD STORE John Patterson said that on February 1, 1988 Mr. Joong Jae Lee appeared before council to request the renewal of his alcoholic beverage package license for the 777 Food Store at 1649 Windy Hill Road. Their license was suspended August 3, 1987 for selling to minors and at the February meeting there was also some discussion about a 1985 conviction in Atlanta for selling without a license which Mr. Lee denied. For that reason, Mr. Lee's license was denied at the February 1st meeting for falsification of his application. Attorney Chung H. Lee represented Joong Jae Lee and two of the witnesses were sworn in with Police Chief R. E. Little. Chung Lee said he was here to appeal to council to consider his client's petition for a beer and wine license. At the last hearing he was rejected on the basis that he had a previous conviction during the time he was operating a business in Atlanta. Tonight there will be evidence presented that will show another person was the actual owner of the property at that time and the wrong party was cited. Chung Lee said the proper party was here tonight to tell the truth about who the owner was during the time beer was sold without a license. Also here tonight is the detective who cited the offense at Simpson's Market in Atlanta. Chung Lee said his client was not involved in this violation at all and doesn't recall if he was at the location. Chung Lee said he understood our ordinance requirements and the ruling that each applicant must list any previous convictions. Mayor Bacon informed Chung Lee that we had received information from the City of Atlanta indicating that he had been convicted. Chung Lee said he had the same information, but the proper party was not charged and the ticket was issued to the wrong person. Mayor Bacon stated there was also a question about a violation for improper advertisement which was not resolved at the last meeting. Mr. Chung Lee introduced Sang Lee who purchased the Simpson Road Grocery Store on January 7, 1985 from Hoon Lee. Joong Jae Lee had nothing to do with the business and the actual guilty party was Sang Lee, as the owner of the store. Sang Lee also did not file for his business license until April 1985 which is also a violation and he was using the license of Hoon Lee during the time the violation occurred. Chung Lee said that Joong Jae Lee was cited with Hoon Lee at the same time, but the guilty party is Sang Lee since he was owner of the store at that time. Joong Jae Lee was sworn in by Attorney Camp and said he had never been to Simpson Store and never worked there. Jack Shinall asked Joong Jae Lee how the April 7, 1988 - continued officer was able to issue a citation to him, with his date of birth and home address. Joong Jae Lee said he was not on the premises. It's possible that the mistake was made since they are all family members; Hoon Lee is his brother. Chung Lee said the issue is who is responsible for the violation as the license holder for the store, not really who was there and sold the beer. If that was the issue, then Detective Moore would have cited both the person selling the beer and the person who is the owner of the store. Jerry Mills said that was not correct, the issue is that regardless of whether or not Joong Jae Lee owned the store, he was charged with selling beer without a license and on his application with the City, he stated he had never been convicted. Detective David R. Moore with the City of Atlanta said when the attorney requested some information on the case he went to the Clerk's office and was told the cases had been dismissed. The next time he got information after talking to Mr. Patterson, he talked to another person in the Clerk's office was told there was a $150 fine but it had been suspended. The computer records do indicate a $150 fine against Joong Lee which was suspended. They did write two tickets at that location and the policy then was to cite the person at the store in charge and the owner/licensee. Usually the owner or license will not be there, but they are still cited and a copy of the ticket is left for them at the location. Detective Moore said because of the length of time involved he could not identify Joong Jae Lee tonight as being the person he gave the citation to, but did not know how else he would have obtained the date of birth and home address. That information is usually obtained by asking the person directly and they don't always ask for identification. Mayor Bacon asked Chung Lee why, as the attorney, he had not straightened this out and cleared Joong Jae Lee's name if he was not guilty. Chung Lee said he had; when he went to court the only thing the judge was concerned with was the owner or licensee, not the person on the premises. At the time they were only concerned with the licensee. Chung Lee said in August 1987, the alcoholic beverage license for 777 Food Store was suspended when a part time employee was found guilty of selling to a minor. Joong Jae Lee as the licensee was not on the premises but was held responsible and the same principle applies with the case in the City of Atlanta. Mayor Bacon asked Detective Moore if the statement made on the City of Atlanta ticket, which he had written, was correct which said that Joong Lee, manager, was selling beer without a current alcoholic beverage license and Hoon Lee, owner/licensee was also cited. Detective Moore said that was correct. Chief Little was called and said they were requested to conduct an investigation and Captain Kirby got copies of the tickets issued which indicated that Joong Jae Lee was cited for selling beer without a license and that he went to court and plead a nolo contendere, was fined $150 or 30 days which was suspended. They also got a copy of the report that Detective Moore and Andrews made indicating the name of the individuals cited with the home address of Joong Jae Lee and the date of birth. It also indicates the owner was cited. Chief Little said he contacted the clerk of court in Atlanta yesterday and as of that time, there has been no change in the status of the case. Chief Little said his investigation also reflected that Mr. Lee held an alcoholic beverage license in Atlanta for a B & W Supermarket and that he owned a Food World in Decatur from February 1984 to March 1985 and during that time the DeKalb Police Department issued a written warning to Mr. Lee based on complaints that he was selling to minors. That was the information they received even there is no record of it. They were also unable to find a record of a violation for improper advertisement. Jack Shinall suggested that Joong Jae Lee go back to the City of Atlanta and have the record cleared if it is in error but the only evidence that was presented tonight indicates that Joong Jae Lee was found guilty of selling without a license and convicted. John Patterson said this information should have been disclosed at the time he made application with the City rather than falsifying the application. After further discussion Mayor Bacon advised Chung Lee council would discuss the appeal further and advise them by letter of their decision. April 7, 1988 - continued PARADE PERMIT - RHYNE PARK SOFTBALL Jim Hawkins made a motion the parade permit for Rhyne Park Softball be approved for April 16 subject to approval of the police department. Wade Lnenicka seconded the motion which carried 6-0. Jerry Mills made a motion the alcoholic beverage license appeal by Joong Jae Lee be denied since there was no new evidence presented for consideration tonight. Jim Hawkins seconded the motion which carried 6-0. With no further business, meeting adjourned at 8:19 p.m. A. MAMBA O , O� MEL INDI DAMEROJ, TY CLERK BOB DAVIS, WARD 1 WADE, LNENICKN, WARD 2 11 'f, L �� Z-_ y�IIYA t r April 18, 1988 The regular scheduled meeting of Mayor and Council was held April 18, 1988 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 Attorney Charles E. Camp, City Clerk Melinda Dameron and representatives of the press. Invocation was given by Reverend Don Pope from Smyrna Baptist Church, followed by the pledge to the flag. Bob Betenbaugh read a proclamation for "Kids Now" Week and presented it to Bobbie Blades, manager of Cobb Center Mall. Mayor Bacon also introduced Claudia Crim in the audience from Buddy Darden's office and welcomed her to the meeting. CITIZENS INPUT: Nothing to report. DEPARTMENT REPORTS- and Fire Departments. PUBLIC HEARINGS: Reports were given from Community Development, Library, (A) Management change for package beer and wine license - A&P Food Store, 2412 Atlanta Road. John Patterson said that Wallace Howard Perkins has submitted an application as the appointed agent for A&P. The original license for this location was issued in 1975. The police investigation was favorable and there was no opposition. Mr. Perkins said he was the Controller of the southeast region for A&P and understood that as the license holder, would be responsible for any violations. Mr. Perkins said he understood the City ordinance and employees of the store were instructed to request identification from anyone who appeared to be under age and they stress the importance of operating within the law. Jack Shinall made a motion the management change be approved as requested. Bob Betenbaugh seconded the motion which carried 7-0. (B) Annexation of 2.10 acres on Pat Mell Road. ti