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02-18-2002 Regular MeetingFebruary 18. 2002 The regular scheduled meeting of Mayor and Council was held at Smyrna City Hall. The meeting was called to order by presiding officer Council Member and Mayor Pro-Tem Jim Hawkins at 7:30 o'clock p.m. All council members were present. Also present were Acting City Administrator Chris Corey, City Attorney Scott Cochran, Community Relations Director Jennifer Bennett, Parks and Recreation Director Steve Ciaccio, Finance Director Claudia Edgar, Police Chief Stan Hook, City Engineer Ken Hildebrandt, Keep Smyrna Beautiful Director Ann Kirk, Community Development Director Chris Miller, Library Director Michael Seigler, Public Works Director Scott Stokes, Fire Chief Larry Williams, Deputy City Clerk Lee Miller and representatives of the press. Invocation was given by Pastor Charles Thomas of Bethany Methodist Church, followed by the pledge to the flag. CITIZENS INPUT: Mayor Pro-Tem Hawkins recognized Chief Hook, who in turn introduced Ofc. Frank Durrance and newly -acquired police canine "Nitro." Chief Hook advised the shepherd -type dog had been. imported from Czechoslovakia and that Ofc. Durrance is the dog's handler. Chief Hook explained that acquisition and training of the dog had cost approximately $50,000, but that much of the expense will be defrayed by grant finds. Mayor Pro -Tern Hawkins recognized Mrs. Ingrid Millis who expressed concern that Council Member Lnenicka had previously mentioned her residence in connection with a sewer complaint at Mr. Curtis' property on Creatwood Trail and provided reasons why she believes her property has no connection with the complaint. Council Member Lnenicka expressed apologies for any misunderstanding which may have occurred and stated that inquiries into the sewer complaint are continuing. Mayor Pro-Tem Hawkins recognized Mr. Floyd Millis who stated that a law had been passed recently which allows people to carry cards as proof of automobile insurance through February 1, 2003. Mr. Millis stated that Representative John Wiles held a meeting to discuss population based laws and expressed concern about whether or not City officials had attended. Council Member Lnenicka advised he had met with Representative Wiles at a recent meeting of the Cobb Municipal Association and had an opportunity to discuss these and other issues. Council Member Wood provided additional details. Mr. Millis presented an analysis of his property taxes using previous, required and revised figures. Mayor Pro -Tenn Hawkins recognized Mr. Walter Lee, 3574 Hickory Circle, who stated that the Smyrna Kiwanis Club will be hosting its annual pancake breakfast on Saturday, February 23 and encouraged everyone to participate to benefit the Scholarship Fund. PUBLIC HEARINGS: (A) Charter Amendment — Redistricting of the Seven Wards of the City of Smyrna Mr. Corey reported that this is the final hearing the City of Smyrna will hold on the redistricting plan for the City of Smyrna and that the first public hearing was held on January 22, 2002 and the second public hearing was held on February 4, 2002. Mr. Corey stated that, according to the Official Code of Georgia, municipalities must advertise a total of three times no less than three days and no more than sixty days prior to the adoption of the proposed Charter Amendment and that advertising requirements had been met. Mayor Pro -Tern Hawkins stated that this is a public hearing and asked for public comment. There was none. Council Member Scoggins advised that redistricting is required every ten years by Federal law. Council Member Scoggins made a motion to approve the Charter Amendment for Redistricting of the Seven Wards of the City of Smyrna, and the motion was seconded by Council Member Newcomb. Motion was passed 6-0. FORMAL BUSINESS: (A) Extension of Working Hours — UCB — 2100 Windy Hill Road February 18, 2002 2 Mr. Corey reported that the expansion of UCB is being fast -tracked by Hardin Construction (HC) and for this reason HC would like to perform some construction during times normally prohibited by the City. Mr. Corey advised I -IC is seeking permission to pour concrete on several mornings starting as early as 3:00 a.m. on weekdays and 7:00 a.m. on Saturdays and, according to HC, the early start is necessary to accommodate delivery of concrete during non - rush hours. Mr. Corey stated HC may also want to do work on some Sundays. Mr. Corey advised that Code Section 46-1 (B) (2) (c) of the City Code limits construction activities to between 7:00 a.m. and 6:00 p.m. on weekdays and 9:00 a.m. and 6:00 p.m. on Saturdays with no construction permitted on Sundays. Council Member Scoggins recognized Mr. Dan Finch of HC and stated he had previously discussed some concerns with Mr. Finch. Mr. Finch distributed some maps of the affected area to the officials present. Mr. Finch that the construction is scheduled to begin towards the end of February and end around the beginning of April. Mr. Finch explained that the concrete would be transported along Atlanta Road and Windy Hill Road and that it would be desirable tp get started early in the day to avoid traffic congestion. Mr. Finch expressed the view that the only real problem which may arise is sound generated by back-up alarms on the concrete trucks but that this noise is only occasional and intermittent. Mr. Finch stated the nearest residential areas are Crescent Apartments, approximately 530 feet from the site, and Brighton Way Apartments, of which are approximately 350 feet from the site. Council Member Scoggins asked Mr. Finch if approval of Sunday work was also requested and Mr. Finch answered in the affirmative. Council Member Scoggins asked Mr. Finch if work was scheduled to begin at 3:00 a.m., and Mr. Finch said yes, about two times per week. Council Member Scoggins stated that this type of request had been approved before, especially for the Highlands. Council Member Scoggins asked Council Member Wood to comment on the Highlands experience, and Council Member Wood advised that construction there had sometimes begun as early as 2:00 a.m. and that some problems had been reported. Council Member Wood asked Mr. Finch to provide further details regarding HC intentions for Sunday work. Mr. Finch advised that Sunday work would only be done to make up days lost to inclement weather and that Sunday work would begin around 8:00 a.m. Council Member Wood called on Chris Miller to provide some guidance and views concerning the matter. Mr. Miller advised that the work beginning before 7:00 a.m. should be limited to weekdays with no exceptions for Sunday. Mr. Miller continued that the subject area is more clearly residential than the Highlands were at the time of the construction at that location and that he generally does not favor any time of blanket exemption. Mr. Miller recommended permitting early starts on weekdays only and expressed the view that this should give HC enough flexibility to accomplish their stated aims. Council Member Newcomb asked Chief Hook for his views on the matter and Chief Hook advised he does not expect any real problems because the distance from the work site to the nearest residence is substantial. Council Member Scoggins asked Mr. Finch if HC could accept no exception for Sundays if early starts were permitted on all weekdays and Mr. Finch answered in the affirmative. Council Member Scoggins made a motion to approve construction work for HC at the UCB site to begin at 3:00 a.m. on weekdays and 7:00 a.m. on Saturdays with no Sunday work from the end of February until the middle of April, and the motion was seconded by Council Member Newcomb. Motion was passed 6-0. (B) Annual Renewal of GMA Lease Pool Bond Series Mr. Corey advised the Georgia Local Goveriunent Lease Pool Program provides long-term low interest rates which lower the cost of financing capital equipment needs. Mr. Corey stated the City first participated in the GMA Lease Pool Program in 1990 and has renewed the program yearly because it is a good program that allows the City to save money on the cost of financing long-term capital equipment needs. Council Member Lnenicka advised that the City is required by law to renew this program every year and that it has been beneficial to the City because of the favorable interest rates it provides. Council Member Lnenicka made a motion to approve authorization for the Mayor to sign a resolution for the 2002 Amlual Renewal of the GMA Lease Pool Bond Series 1990, and the motion was seconded by Council Member Wood. Motion was approved 6-0. (C) Approval of Authorization for Mayor to sign Change Order #6: Smyrna Market Village Mr. Corey stated that the purpose of this change order is to install additional stone under' ' I Contract #1 to allow the contractors to access the site and store construction materials. Mr. February 18, 2002 3 Corey advised a change order was previously approved to install stone in the West Spring Street right-of-way and that this change order extends this area to the outlying parking areas. Council Member Wood stated that Mr. Corey's explanation addressed most of the issues involved and that this change order would help to allow the work to proceed on schedule. Council Member Wood made a motion to approve authorization of the Mayor to sign Change Order #6: Smyrna Market Village at a cost of $14,349.10 and the motion was seconded by Council Member Cramer. Motion was approved 6-0. COMMERCIAL BUILDING PERMITS: There were none. BID AWARDS: There were none. CONSENT AGENDA: (A) Approval of February 4, 2002, Minutes (B) Approval of Use of Council Chambers by the Creatwood at Vinings HOA for a Meeting on February 24, 2002 Council Member Wood made a motion to approve the consent agenda and the motion was seconded by Council Member Lnenicka. Motion was approved 6-0. COMMITTEE REPORTS: Council Member Wood called on Steve Ciaccio to report on the status of Parks and Recreation operations, and Mr. Ciaccio furnished data on Park Ranger activities and information on facilities and participation in programs. Council Member Hawkins asked Mr. Ciaccio about the status of repairs to the steps to the field at Campbell Middle School, and Mr. Ciaccio advised the repairs were under way. Council Member Wood called upon Michael Seigler to report on library operations and Mr. Seigler provided statistics indicating an increase in use of library facilities. Mr. Seigler also advised that the tax return assistance program had been a success and provided information about an upcoming beadwork exhibit and a book -signing event with an author who graduated from Campbell High School. Council Member Wood asked Mr. Seigler about construction work on the second floor of the library and was advised that the work is in its preliminary stage. Council Member Lnenicka advised the City will continue to try to resolve the sewer problem at Mr. Curtis' property. Council Member Cramer reminded everyone that pavers for the Veterans' Memorial are still available, and encouraged everyone to support this project. Council Member Scoggins called upon Ann Kirk to report on Keep Smyrna Beautiful (KSB) activities, and Ms. Kirk announced that the City of Smyrna has won the Solid Waste Reduction Award. Ms. Kirk stated that the City has won first place three times and second place two times for this competition during the last five years. Council Member Hawkins commended the residents of the City for their willingness to participate in KSB programs. Ms. Kirk also congratulated the KSB volunteers for winning first place in the State competition for which they are scheduled to receive an award. Ms. Kirk stated that on February 23 eleven new trees will be dedicated at the arboretum. Ms. Kirk reported that participation in the Adopt a Mile program during January was excellent and that the Georgia Department of Transportation had selected the City's Adopt a Mile volunteers to film for a training video for similar programs across Georgia. Ms. Kirk stated the Great American Clean-up will start in March and continue until the middle of May and invited interested persons to contact her regarding this program. Council Member Ron Newcomb called upon Chris Miller to report on the status of Community Development operations, and Mr. Miller provided current statistics regarding building permits. Mr. Miller advised the next Growth Strategies Commission (GSC) meeting is scheduled for March 1 with Larry Frank from Georgia Institute of Technology as the guest speaker. Council Member Newcomb asked Mr. Miller to explain to those present the purpose of GSC, and Mr. Miller stated it was to help evaluate land use and transportation in the City and to find ways to implement "smart growth." February 18, 2002 4 Council Member Pritchett reported that metal detectors are scheduled to be in use in the City court around March 1 and that a new environmental court will be implemented around the same time. SHOW CAUSE HEARING: (A) Ruby Tuesday - 3197 South Cobb Drive - Gary Burgess, Agent Mayor Pro-Tem Hawkins called upon all persons involved in the show cause hearing to come forward to be sworn in for testimony and the oaths were administered by City Attorney Cochran. Mayor Pro-Tem Hawkins recognized Ofc. Joe Bennett who reported that on August 17, 2001, SPD officers, in cooperation with the Cobb County Underage Drinking Task Force, conducted an underage alcohol operation which entailed using an underage informant to check compliance with alcohol ordinances. Ofc. Bennett advised the operation was concentrated in "Adam Zone" with twenty different drug stores, grocery stores, restaurants, convenience stores and package stores checked. Ofc. Bennett stated that around 9:30 p.m., Ofc. Dobson and a seventeen year old informant went into Ruby Tuesday (RT) and sat at the bar, and the informant ordered a draft Bud Lite. The bartender, identified as Creed Pannell, asked the informant for identification, looked at the identification, and served the beer to the informant. Ofc. Bennett reported that the identification used by the informant was a Georgia identification showing a date of birth of November 4, 1983. Ofc. Betuiett stated the informant was monitored with both audio and video but the recordings were of poor quality. Ofc. Bennett advised a photograph of the beer was taken and Lt. Zgonc issued a citation to the offender and released him on a copy of the charges with a court date of September 18, 2001. Mayor Pro-Tem Hawkins recognized Mr. Michael Sard, an attorney with the firm of Fine and Block, who represent RT. Mr. Sard stated he does not dispute the facts represented by Ofc. Bennett. Mr. Sard introduced Mr. Jim Sweet, General Manager (GM) of RT, and Mr. Gary Burgess, the previous GM of RT and agent at the time of the incident. Mr. Sard stated the accused, Mr. Pannell, would not be present because of the possibility of self-incrimination. Mr. Sard reported that RT has been in Smyrna about ten years with no previous alcohol violations. Mr. Sard stated that RT is a good corporate citizen and cited the various benevolent activities which RT is involved in. Mr. Sard stated he would present various mitigating factors on behalf of his client. Mr. Sard advised Mr. Pannell was thirty years of age at the time of the incident and had been employed at RT for about two and a half years and had been trained in RT policies and procedures for alcohol sales. Mr. Sard said Mr. Pannell asked for identification but apparently did not concentrate on the date. Mr. Sard expressed the view that the time of the incident is one of the busiest times of the week for RT. Mr. Sard said RT makes efforts to prevent mishaps of this type and explained in detail the standardized training provided to RT personnel involved in alcohol sales. Mr. Sard stated that Mr. Pannell is undergoing re-training and that he is a "living reminder" of the consequences of failure to follow RT policies and procedures for alcohol sales. Mr. Sard expressed the view to the Council that a suspension of the RT license would be undesirable and could result in reductions in force of as many as four employees and $8,000 to $9,000 in lost revenues. Mr. Sard said that RT had not been the subject of any complaints and that the incident was one of human error. Mr. Sard stated that he believes that a suspension is not warranted under the circumstances but that, if a suspension were to be imposed, it should be attenuated in scope, e.g., Mondays only. Mr. Sard expressed regrets that the incident happened, but said that his client had made reasonable efforts to prevent such a mishap. City Attorney Cochran received from Mr. Sard a document ("Objections for the Record") which Mr. Cochran turned over to Deputy City Clerk Miller for inclusion in the record. Council Member Scoggins commended the representatives of RT present for the efforts they make to ensure that servers are properly trained. Council Member Lnenicka stated he was surprised about the stated possibility of lay-offs of as many as four people at RT because of the size of the organization. Mr. Sard stated the estimate was based on the impact of lost alcohol sales. Council Member Lnenicka asked Mr. Sweet for his views on the possible impact of license suspension on staffing levels. Mr. Sweet advised RT has a full staff and is not hiring but that other stores could be contacted for possible placement of redundant personnel. Council Member Lnenicka asked Mr. Sard to clarify the reasons for Mr. Pamiell's absence, and Mr. Sard answered that Mr. Pannell has his own attorney representing him in the criminal matter' and that he is trying to respect Mr. Pannell's rights. Council Member Lnenicka asked Mr. February 18, 2002 $ Sard if he had requested Mr. Pannell to attend the show cause hearing and Mr. Sard answered that he had been in contact with Mr. Pannell's attorney but that Mr. Pannell did not attend. Council Member Cramer made a motion to move into executive session,and the motion was seconded by Council Member Wood. Motion was approved 6-0 (affidavit attached). Council Member Scoggins made a motion to adjourn from executive session, and the motion was seconded by Council Member Cramer. Motion was approved 6-0. Mayor Pro -Tern Hawkins stated that RT has a good training program in place and has had a generally good record for compliance with alcohol sales regulations. Mayor Pro-Tem Hawkins advised that the infraction was serious but evidently unintentional and that he recommended that RT be given a warning and placed on five years of Class I probation. Mayor Pro-Tem Hawkins made a motion to approve a warning for RT and five years of Class I probation, and the motion was seconded by Council Member Scoggins. Council Member Newcomb agreed that RT has a good training program and a good record of compliance but stated he is not comfortable with the idea of no suspension for a violation of this type and thus will not support the motion. Council Member Lnenicka stated he supports Council Member Newcomb's comments. Council Members Pritchett, Scoggins and Wood voted in favor of the motion with Council Members Cramer, Lnenicka and Newcomb opposed. Mayor Pro -Tern Hawkins voted in favor of the motion to break the tie. Motion was approved 4-3. With no further business, the meeting adjourned at 9:05 p.m. A. MAX BACON, MAYOR KELLIE BARBER, CITY CLERK RON NEWCONTB, WARD 2 BILL SCOGGINS, W JAMES M. HAWKI S, WARD 4 K CRAMER, WARD 5 WADE S. LNENIC A, WARD 6 CHARLES PETE OOD, WARD 7 BEFORE THE MAYOR AND COUNCIL OF THE CITY OF SMYRNA In the Matter of Hearing to Suspend Alcoholic Beverage License of Ruby Tuesday, Inc. d/b/a Ruby Tuesday 3197 S. Cobb Drive, Smyrna, GA 30080 OBJECTIONS FOR THE RECORD COMES NOW, RUBY TUESDAY, INC. ("RTI"), and for purposes of preserving the record before The Mayor And Council of The City of Smyrna (the "Council"), asserts the following objections for the record: 1. Sections 6-162 and 6-163 of the Smyrna Code are unconstitutionally vague and lacks ascertainable standards, violate RTI's rights under the Equal Protection Clauses of the r ti Constitutions of the United States of America and the State of Georgia, would violate RTI's rights under the Due Process Clan—Jes of the Constitutions of the United States of America and the State of Georgia and would violate O.C.G.A. Section 3-3-2. ►01 If the Council determine to impose a suspension and/or a fine against RTI, such action would be arbitrary and capricious and would violate RTI's rights under the Equal Protection Clauses of the Constitutions of the United States of America and the State of Georgia, would violate RTI's rights under the Due Process Clauses of the Constitutions of the United States of America and the State of Georgia and would violate O.C.G.A. Section 3-3-2. 3. Should the Council determine to impose a suspension and/or a fine against RTI, such action would constitute a deprivation of property without due process of law. Such action would constitute an arbitrary and capricious act by the Council without any rational basis and would be contrary to the evidence presented by RTI. An imposition of a suspension or fine against RTI would result in relatively little gain or benefit to the public, while inflicting serious injury or loss on RTI and therefore, would be confiscatory and void. This 18t' day of February, 2002. SM Mi—chael Sard, ne d B1ocR�Ai Attorney for Ruby Tuesday, Inc. AFFIDAVIT Personally appeared before the undersigned attesting officer, duly authorized to administer oaths, Mayor Pro -Tern Jim Hawkins, who after being duly sworn, deposes and on oath states the following: (1) I was the presiding officer of a meeting of the Smyrna City Council held on the 181" day of February, 2002. (2) That it is my understanding that O.C.G.A. §50-14-4(b) provides as follows: When any meeting of an agency is closed to the public pursuant to subsection (a) of this Code section, the chairperson or other person presiding over such meeting shall execute and file with the official minutes of the meeting a notarized affidavit stating under oath that the subject matter of the meeting or the closed portion thereof was devoted to matters within the exceptions provided by law and identifying the specific relevant exception (3) The subject matter of the closed meeting or closed portion of the meeting held on i the 181" of February, 2002, which was closed for the purpose(s) of discussion of legal issues as allowed by O.C.G.A., Title 50, chapter 14, was devoted to matters within those exceptions and as provided by law. (4) This affidavit is being executed for the purpose of complying with the mandate of O.C.G.A. §50-14-4(b) that such an affidavit be executed. This 18`" day of February, 2002. Sworn to and subscribed before me This 181" day of February, 2002. Mayor/Presiding Officer Notary Public