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07-19-1993 Regular MeetingJuly 19. 1993 The regular scheduled meeting of Mayor and Council was held July 19, 1993 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 Bob Thomson, City Clerk Melinda Dameron, City Attorney Charles E. Camp, Personnel Director Mary Ann White, Finance Director Jim Triplett, Fire Chief Larry Williams, Library Director Laurel Best, Parks and Recreation Director Steve Ciaccio, City Engineer Ken Hildebrandt, Public Works Director Vic Broyles, Community Relations Director Kathy Barton, Major Kent Sims from the Police Department and representatives of the press. Invocation was given by Councilman Jim Hawkins followed by the pledge to the flag. CITIZENS INPUT: Karen Tarlano and John Teasley with BFI gave a one year report on recycling participation in the City. The average participation rate last year was 69% and according to the Marietta Journal, the City of Smyrna collected more recyclables in one month than all 5 other cities combined. Ruth Hancock of 1164 Bank Street expressed her opposition to the proposed installation of speed bumps on Flagler Circle. Mrs. Hancock said it was safer for Bank Street residents to use Flagler Circle and Church Road to get onto South Cobb Drive because of the traffic light and it would be a nuisance for them. Councilman Cramer said 15 residents in the area had presented a petition requesting the speed bumps and they will be installed on a trial basis. Mrs. Hancock said she also was upset that she had paid $3 for a Smyrna ID card to allow her to use the recycling center and then found out that a library card would suffice. Councilman Hawkins said he thought the City should reimburse everyone who purchase an ID card for recycling privileges, if they had a library card. PUBLIC HEARINGS: (A) Rezoning request - 743 Windy Hill Road - rezone from Limited Commercial to General Commercial Bob Thomson stated that Mr. Bob Dean is requesting the rezoning of this property to rent to Action Auto Renting Company, for car leasing. There was no opposition. Mr. Dean said he purchased the property last September and had spent the last 3 or 4 months renovating. The heating/air and electrical system has been upgraded and the building completely renovated on the inside. Also they have provided paved parking in the front and back. Mr. Dean said the only prospect he had was for an auto leasing company which requires a GC zoning. Mr. Dean said he had also obtained letters of approval from the adjoining property owners. Councilman Hawkins asked how many cars would be parked there. Mr. Dean said there should never be more than 8 cars at any one time and those will be parked in the rear of the building. The front will be a turnaround area and customer parking. Councilman Hawkins asked if any type of cleanup or repairs would be conducted at this site. Mr. Dean said there would not be; when cars are returned they will be taken to another location for servicing. Councilman Newcomb commended Mr. Dean on the good job he has done in cleaning up the site but had a problem with the zoning change. It seems almost as a spot zoning and does not conform to the land use plan that was adopted several years ago. Councilman Cramer said there are other locations on Windy Hill that are zoned General Commercial so this would not be a spot zoning. Councilman Hawkins said the canoe rental business next door is zoned General Commercial and did not know if we could deny Mr. Dean his zoning when the abutting property is already zoned GC. Mr. Dean said he would agree to a stipulation that all parking be to the rear and Mr. Camp said if he does agree to the stipulation, it will carry over with the property. Councilman Lnenicka said he could not support the zoning for the same reason Mr. Newcomb stated. Mr. Lnenicka said he would like Mr. Dean to take a look at the landscaping and appearance of building. Almost all the level ground has been paved and what little grass is left has not been mowed. There is a small space in front for landscaping and hopefully, something will be done with that. Mr. Lnenicka said he also had concerns about future use of the property after the zoning is changed. Mr. Lnenicka , said he was faced with a similar situation 9 months ago for property on Atlanta Road at Creatwood Trail during a request to rezone from NS to GC for a finance business, part of it involving repossession of cars. Mr. Lnenicka said it would be inconsistent for him to vote for this request tonight. After further discussion Councilman Cramer made a motion the zoning be approved with a stipulation that all parking would be in the rear of the property and meet specifications set by the City Engineer. Bill Scog&s seconded the motion which carried 5-2 with Ron Newcomb and Wade Lnenicka opposed. (B) Variance requests - 743 Windy Hill Road: reduce front lot width from 100' to 75'; reduce side yard setback from 10' to 9'; reduce front yard setback from 50' to 25'; reduce minimum square footage from 20,000 to 10,300 square feet In conjunction with the zoning just approved, Mr. Dean requested four variances for the existing house. Mayor Bacon said that the majority of the variances are required due to the widening of Windy Hill Road. There was no opposition. Councilman Cramer made a motion the variances be approved as requested seconded by John Patrick. Councilman Lnenicka said he would not support the motion because he voted against the zoning and also felt the innumerable number of curb cuts on Windy Hill Road posed a safety problem. Councilman Newcomb asked why the variances were necessary. Mr. Dean said the house as it exists, does not meet current code requirements and the variances were required by the City although he has not changed the size of the structure. Mr. Newcomb he also would not support the motion and did not want to see us throw out all required criteria for General Commercial zoning by approving this request. Vote on the motion to approve the variances carried 5-2 with Ron Newcomb and Wade Lnenicka opposed. (C) Privilege license - Food Max, 2500 south Cobb Drive Bob Thomson stated that Bruno's, Inc. d/b/a Food Max *175 has requested a license to sell retail package beer and wine at their new location. The agent will be Jerome S. Augustine who is also the on site manager. A large group in the audience was present to oppose the license. Attorney Conley Ingram, applicant Jerome Augustine and representatives for the opposition were sworn in by Mr. Camp. Mr. Ingram said that with him tonight is the general counsel, manager and co -manager of Bruno's. Mr. Ingram said that Bruno's is very proud of this store which represents a $6 to $7 million investment. They take the position that they are entitled to sell beer and wine by.the package under the city ordinance, just as all other major stores in the city current sell. A recent canvas of the 8 major grocery stores in the City revealed that 7 had licenses to sell beer and wine from the shelf and the only one that is not licensed is Food Max. Mr. Ingram said this is a family organization that does not make revenue from beer and wine but in order to remain competitive they must make it available to their customers. Mr. Ingram presented Mike Connally, legal counsel for Bruno's and Jerry Augustine, store manager. Councilman Cramer asked Mr. Augustine if he had read and understood our ordinance and asked about their training program. Mr. Augustine said he was familiar with the ordinance and presented a training booklet that is given to all cashiers. Mr. Augustine said he had been with Brunos for 3 years. Councilman Cramer asked about the percentage of beer and wine sales versus food sales. Mr. Augustine said they anticipate that about 3% of their total sales will be from beer and wine. Councilman Newcomb advised Mr. Augustine that the City is serious about enforcement of the ordinance and we periodically conduct sting operations. Mr. Augustine and his wife were investigated and nothing was found that would prohibit them from holding the license. The application has also been signed off by the Tax Clerk, Building Inspector and Fire Marshal and the application seems to meet the basic requirements of the ordinance. Councilman Hawkins asked Mr. Connally if they knew, when they chose the site, that there was a church within 150 feet of their proposed building. Mr. Connally said they were not aware of the church when they broke ground. They want to be good corporate citizens and good neighbors and are just asking for equal treatment but certainly respect the church's rights and beliefs. Mr. Connally said they did not want to offend anyone and their company was founded on Christian principles. Councilman Lnenicka asked how they would prevent people from drinking outside. Mr. Augustine said they have their own security people and they would be instructed not to allow consumption on the premises. John Creech, pastor of Welcome All Baptist Church represented the opposition and read a prepared statement. Reverend Creech said they were not here to question the integrity of Brunos because they have a fine operation. However, the church felt that if they would honor the moral issue they will make more money that they ever would selling beer and wine wA their members would not shop at Food Max if approved. July 19 1993 meeting - continued Philip West, pastor of Green AcresChurch' also spoke in opposition and said while their store is a tremendous asset to the community, he questioned anyone who would build a $4 million facility and not know they would not meet distance requirements for a license. Also, he did not believe that any business should depend on 2 to 3% of their sales and did not think that loss of revenue would cause them to close their doors. Reverend West said he was concerned about the condition of our community and cited recent deaths and tragedies associated with drinking and his church is also located in a section of town that is very open to drinking. Reverend West said he thought it should be important to council to recognize the desires of the city. Councilman Cramer said that because of the constitutional freedom that we enjoy it would be everybodys right individually as to whether or not they partake of alcoholic beverages. Food Max has another option available to them, of opening a liquor store in the adjacent part of the shopping center. Mr. Cramer said the beer and wine sales will be a minute part of their business and made a motion the license be approved, seconded by John Patrick. Councilman Hawkins said he did not know of an issue that has been more agonizing than this. We had a deplorable condition at the old Zayres before Food Max built and renovated the center. He assumed that they were familiar with the church location and found out later that they did not meet distance requirements. Mr. Hawkins said the store is a plus for the community but fully believed that the church had as much right as they and it was a matter or principal that the church was there first; it was Brunos mistake and not the church's. Councilman Hawkins said he also thought it was a mistake for them to pursue the license and thought they would do more business in their store by withdrawing the request. Councilman Newcomb said he recognized and condemned the behavior caused from the abuse of alcohol in our society and would not support anything other than a grocery store adjacent to a church. There were other changes to the alcoholic beverage ordinance that strengthened it even further. Mr. Newcomb said he felt there were bigger threats in the community to challenge us and he hoped we could move forward together to meet those. Right or wrong, the current ordinance sets forth specifications that this applicant does meet, and legally we would not have any choice but to support their application. Councilman Lnenicka stated that their oath requires that they uphold the ordinances. While the effects of alcohol abuse was very much in their minds when they changed the ordinance, this case says they are entitled to a license. Mr. Ingram, who is a former Supreme Court Judge, has given an opinion that our old ordinance was deficient and they probably would have prevailed in a suit brought against the City. The old ordinance did not protect the City the way that it should have and the changes have strengthened it and overall, will protect the health, welfare and safety of our city. Councilman Hawkins said the old ordinance was not as contradictory as was being stated. There was one sentence in the section dealing with distance requirements that was contradictory that could have been changed, and Mr. Hawkins said he had pointed that out many times. Councilman Scoggins said he also had mixed emotions about the license but knew they were required to follow the law and must put personal feelings aside. Mr. Scoggins said the church was here first, but felt there was really no choice and would support the motion. Councilman Wood said when the new ordinance came before council he opposed it because of the distance requirements that were reduced and still thought it was wrong. Mr. Wood said he would oppose the motion tonight for the same reason. Vote on the motion to approve the license carried 5-2 with Pete Wood and Jim Hawkins opposed. FORMAL BUSINESS: (A) Bid opening - Atlanta Road widening project Commissioner Joe Lee Thompson introduced Roswell Story, Director of Purchasing for Cobb County and two members of the Cobb Department of Transportation staff. Commissioner Thompson said he was pleased that we could open bids here tonight for the Atlanta Road widening, from Spring Road to I-285. Bids were then opened, read and recorded as follows: July 19, 1993 meeting - continued APAC Georgia $7,048,191.50 C. W. Mathews $7,277,672.54 Bankhead Enterprises $7,978,479.12 Blount Construction $7,333,151.00 Ruby Collins $7,865,290.50 Commissioner Thompson said the County Engineer would review the bids and have a recommendation ready at the first meeting of August. COMMERCIAL BUILDING PERMITS: Nothing to report. Councilman Newcomb made a motion the rules be suspended to consider amendments to the Personnel Rules and Regulations. Bill Scoggins seconded the motion which carried 7-0. Councilman Newcomb made a motion we approve the amendments to the Personnel Rules and Regulations handed out earlier tonight, in the method of computing time for annual leave, city holidays., sick leave, overtime and compensatory time and on -call policy. The purpose of the amendments is to correct the method of calculations for Fire and EMS personnel who work the 24/48 shift. Mary Ann White said we just need to make sure we have the calculations correct for Fire and EMS personnel. For annual leave hours for Fire and EMS personnel, those numbers are calculated by taking annual leave accrued by regular 40 hour week employees and multiplying times 1.4, the ratio difference between the 40 hour employees and 56 hour per week employee (24/48 shifts). Councilman Hawkins seconded the motion to approve the amendments which carried 7-0. BID AWARDS: Nothing to report. CONSENT AGENDA: (A) Approval of July 6, 1993 minutes (B) Approval to request bids - rubber tire loader (C) Approval to request bids - garbage truck (D) Approval of contract with Professional Probation Services Councilman Hawkins made a motion the consent agenda be approved. Councilman Scoggins seconded the motion which carried 7-0. SHOW CAUSE HEARING - OUICK TRIP, 3875 SOUTH COBB DRIVE Bob Thomson stated that a clerk at Quick Trip was recently cited for allegedly selling alcoholic beverages to a minor and the hearing has been scheduled tonight to consider the suspension or revocation of the license. License holder Doug Cussimanio and other representatives of Quick Trip were sworn in along with arresting officer Mitch Plumb. Officer Plumb stated that on June 29, 1993 at 1:34 a.m. he arrested a 20 year old male for possession of alcoholic beverages. He then contacted the store clerk at Quick Trip, Mr. Benjamin Payne, who advised that he did sell a 6 pack of beer to the youth. He also stated that he did not ask for identification and was then cited for sales to a minor. This was not part of a sting operation, but Officer Plumb said he made the arrest after receiving a call about a suspicious person walking on South Cobb Drive in front of the store. They observed the two individuals and waited outside while they entered the store and watched the transaction and waited for them to leave the store. The minor advised Officer Plumb that they had just purchased the beer inside the store and was not asked for identification. State charges were not filed, and summonses were issued under city ordinance. Councilman Lnenicka asked Officer Plumb if it was unusual for him that a clerk at a Quick Trip had sold to a minor. Officer Plumb said that in his 17 years of policing, he had found that Quick Trip had trained their employees to a higher standard than most convenience stores. Officer Plumb said he had never known this store, or this particular employee to violate the law. Mayor Bacon asked Officer Plumb if he was aware that they were cited in 1989 for the same offense, and Officer Plumb said he was not. Mr. Cussimanio said that Mr. Payne is not present tonight, and is no longer employed by Quick Trip. They do not question the incident, because they questioned Mr. Payne and he admitted that he did not Julv 19, 1993 meetine - continued card the individual and was terminated for that. Mr. Cussimanio'said Quick Trip has been in business for 35 years and had one of the best training programs in the business. Mr. Payne was aware of the requirement to card, but he simply failed to follow through on the policy. His statement was that the person did not have any identification, and he didn't make an issue of it. Mayor Bacon said the home address of the minors :was quite a distance from Quick Trip, and they would have passed several other convenience or package stores while walking to Quick Trip and wondered if perhaps they knew that they would be successful in buying beer at that location. Mr. Cussimanio said Mr. Payne was just filling in that night, and it was unusual for him to be in the store at that time of night. Councilman Lnenicka said he was concerned that this was the second incident at this location. Recently council had a similar situation and the action they take tonight must be consistent. Council has a duty to the residents of Smyrna to enforce the law involving health and safety issues and urged Mr. Cussimanio to be more involved in training and operation of his stores. Councilman Lnenicka made a motion the license be'suspended for 60 days effective at 12:01 a.m., July 20, 1993. Councilman Newcomb seconded the motion and stated that Quick Trip is a good corporate member of the community and they do have a good reputation which makes it that much more regrettable to have to support the motion. It's troubling that someone Mr. Cussimanio described as a good manager took this nonchalant attitude. The Mayor's point was also well taken that these young men knew where they could go and not be checked as closely as other locations, and felt that was not representative of other Quick Trip stores. This is the second violation since October 1989 and that is troubling. The evils of teenage drinking are well known; it causes a lotof misery and a very firm, unswerving attitude on the part of this council is needed regarding sales to minors. Vote on the motion to suspend the license carried.7-0. COMMITTEE REPORTS: Mayor Bacon thanked Commissioner Thompson for coming tonight and appreciated his involvement in our local government issues. Mayor Bacon announced that we have finally won in the nude dance issue after 3 years of litigation. Mayor Bacon thanked council for sticking together on this issue and also thanked Chuck Camp and the city's law firm for drawing the ordinance and defending it all the way to the Supreme Court. As recently as last week, we had to get a restraining order to 'prevent them from openly and willfully violating the nude dance law. Mayor Bacon also congratulated Ron Gant, Old South Barbecue, Howards Delicatessen, Fat Boy Drive - In, McEntyre Bakery, Johns Car Wash, Bass Styling Salon and Lillie Glassblowers for being named the "Best" of their categories by Inside Cobb Magazine last month. Councilman Patrick reported on a Ward 1 meeting conducted last week at the Community Center and called on Laurel Best for a report from the Library. Councilman Newcomb called on Mary Ann White for a report from Personnel. Mrs. White said the class and comp study for city employees will begin soon.; Councilman Scoggins called on Kathy Barton for a report from Community Relations. Mrs. Barton said the report from BFI earlier tonight did not show; that the City saved $29,448 last year in tipping fees through recycling and saved 162,811 cubic feet of space in the landfill. Also, Smyrna library cards are now acceptable proof of residency for those who wish to use the recycling center. Mayor Bacon said we have a new employee at the center who has turned away several non-residents who have attempted to dump building material. Apparently that is why we have had such high cost of operating the center because they were allowed to use it in the past. Mrs. Barton also reminded everyone of the adopt -a -highway campaign on Saturday, July 31st. There are 26 groups who will be involved in picking up litter. Mayor Bacon commended Kathy on the wonderful job she has done to educate our citizens about recycling and without her, our program would not be as successful as it is today. Councilman Scoggins called on Vic Broyles, who gave a report on the chipping program and reminded July 19, 1993 meeting - continued everyone that we still have once a week curbside trash pickup. Councilman Cramer reminded everyone of his Ward 5 meeting on Saturday, July 31st at the Community Center. Councilman Lnenicka read a letter from the Cobb County Animal Control division commending officers White and Pino for assisting them in rescuing a dog who was trapped in a motor oil pit recently. Councilman Lnenicka said the grand jury presentments commended our Police Department and Chief Hook for his efficient operation. Councilman Lnenicka said the Cobb County Commission recently voted to do away with their weed control ordinance and it bothered him because the City devotes a great deal of time in enforcing the ordinance for our district. Councilman Lnenicka recognized two guests from Russia who are visiting this country and staying with his family in Vinings. They came to the United States through a program sponsored by Congressman Newt Gingrich where 100 citizens are here to spend one month to study our economy and lifestyle and take those ideas back to Russia. Councilman Wood called on Jim Triplett for a report from the Finance Department. With no further business, meeting adjourned at 10:08 p.m. A. MAX BACON, MAYOR ATRICK, WARD 1 • '4 MELINDA DAMERON, CITY CLERK NEWCOMB, WAND 2 lurmMy"61 1ACK ER, WARD /5/�� WADE LNENICKA, WARD 6 CHARLES PETE WOOD, WARD 7