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06212004 June 21, 2004 Council Meeting June 21. 2004 - The regular scheduled meeting of Mayor and Council was held at Smyrna City Hall. The council meeting was preceded by a called work session and a regular work session. The meeting was called to order by presiding officer Mayor A. Max Bacon at 7:30 o'clock p.m. All council members were present. Also present were City Administrator Wayne Wright, City Clerk Susan Hiott, City Attorney Scott Cochran, Acting Fire Chief Jason Lanyon, Finance Director Claudia Edgar, Public Works Director Scott Stokes, Police Chief Stan Hook, Library Director Michael Seigler, Parks and Recreation Director Steve Ciaccio, Keep Smyrna Beautiful Director Ann Kirk, Human Resources Director Chris Corey, Community Development Director Chris Miller, Budget Analyst Greg Van Antwerp and representatives of the press. Invocation was given by Reverend Keith Butler, Jr. from Faith Christian Church, followed by the pledge to the flag. AGENDA CHANGES: Mayor Bacon stated that agenda item 5C (Public Hearing - Rezoning Request Z04-011 - R-15 (SFR) to RAD Conditional- 2585 Old Roswell Road - Vinings Construction Co., LLC) will be tabled until the July 6, 2004 meeting. Mayor Bacon stated that agenda item 5F for rezoning and annexation (18.93 Acre Tract 18th District, 2nd Section; Land Lot 63, Parcels 9, 11, 12, 16,23,27 and 29; Land Lot 170; Parcels 9, 10 and 11 - Oakdale Road - Various Owners) will be tabled until the July 19, 2004 meeting. CITIZENS INPUT: ... Mayor Bacon recognized State Representative Rob Teilhet, and Representative Teilhet asked those present for their support of his re-election bid in the upcoming election. Mayor Bacon recognized Ms. Ann Stephens, residing at 6013 Oakdale Road, and Ms. Stephens expressed appreciation to Mayor Bacon and Council Member Wood for attending to her recent complaint regarding construction vehicles spreading dust and mud at the construction site near her residence. - Mayor Bacon recognized Mr. Kevin Martin, residing at 823 Riverton Park Place, and Mr. Martin asked for clarification of information included in the water quality report which was enclosed in his last water bill. Mr. Martin also expressed concern to those present regarding a telephone pole near Oak Drive which appears to be in poor repair. Mr. Martin expressed further concern to the officials present regarding the condition of the road surface in the vicinity of Highland Drive. Mr. Martin asked the officials present whether or not there is a possibility the current boundaries of Ward 7 could be altered. Mr. Martin stated there is a ward meeting planned in the near future for the area of the City in which he resides, and he encouraged interested persons to attend in order to hear information to be presented concerning roads and streets in that district. Mr. Martin asked the officials present if there are currently any plans to increase the level of police, fire and emergency medical service protection in the area of the City in which he lives. Council Member Wood stated he will direct the City Engineer to inquire into Mr. Martin's complaints regarding the utility pole he observed on Oak Drive and the road surface conditions he mentioned. Council Member Wood stated an additional polling station is to be added to the subject area. Council Member Wood stated that addition of another ward to the City would require a legislative act, and he is not aware of any plans for such an addition at the present time. Council Member Wood stated that redistricting is required every ten years to coincide with the updated census. Mr. June 21. 2004 2 Martin asked the officials present about the status of the effort to have the zip code of the community he lives in changed in order to have a Smyrna mailing address, and Council Member Wood provided details to those present regarding the efforts which are still in progress to try to accomplish this change. Council Member Lnenicka stated he has been consulting with the City - fire and police chiefs regarding population growth and the need for a corresponding increase in provisions for emergency services. Council Member Lnenicka stated some thought has been given to the possibility of adding another fire station in the southwest sector of the City. Mayor Bacon recognized Fred Shope, a local business owner, who expressed concerns to those present regarding traffic problems in the vicinity of his business. MAYOR'S REPORT: Mayor Bacon had nothing to report. LAND ISSUES/ZONINGS/ ANNEXATIONS: (A) Public Hearing - Variance Request V04-0 17 - Reduction in Front Yard Setback - 2890 Atlanta Road - Travis Pruitt and Associates, Inc. Mayor Bacon recognized Mr. Eric Pilcher, and Mr. Pilcher stated the applicant is seeking a setback reduction in order to position the planned bank building closer to the road. Mayor Bacon stated this is a public hearing and asked for public comment. There was none. Council Member Scoggins recognized Mr. Miller, and asked Mr. Miller if it is correct that staff recommends a setback reduction from 50' to 0,' and Mr. Miller answered in the affirmative. Mr. Miller stated this recommendation is being made in order to enable the builder to place the structure as close as possible to the roadway. Mr. Miller stated that such a configuration will result in a streetscape that resembles a traditional downtown area with no parking at the front of the building. Council Member Scoggins asked Mr. Pilcher if a setback reduction from 50' to 0' will be acceptable to the applicant, and Mr. Pilcher answered in the affirmative. Council Member McNabb suggested to Mr. Pilcher that a fountain be added to the plans for the new facility. Council Member Smith asked Mr. Pilcher if the applicant will maintain an easement along the rear of the subject property, and Mr. Pilcher answered in the affirmative. - MOTION: Council Member Scoggins made a motion to approve Variance Request V04-017 for a setback reduction from 50' to 0' at 2890 Atlanta Road for Travis Pruitt and Associates, Inc. The motion was seconded by Council Member Newcomb. Motion was approved 7 - O. (B) Public Hearing - Rezoning Request Z04-009 - R-15 (SFR) to R-12 - 2.61 Acre Tract- North Cooper Lake Road and West Cooper Lake Road - Joe Romano Mr. Wright stated the applicant is requesting rezoning of the subject property for the purpose of constructing eight new houses. Mr. Wright stated staff recommends approval for seven residences at a density of 2.68 units per acre. Mayor Bacon stated this is a public hearing and asked for public comment, and the oath was administered to at least two persons by Mr. Cochran. - June 21. 2004 3 - Council Member Wood recognized Mr. Garvis Sams, the attorney representing the applicant, and asked Mr. Sams to provide details to those present regarding the applicant's plans for the subject property. Mr. Sams stated the applicant's original proposal was for the construction of nine houses on the subject tract, but that that the applicant has amended his proposal to eight units at a density of 3.07 units per acre. Mr. Sams stated this amended proposal calls for a density that is only .07 percent above the three units per acre allowed under the City's Future Land Use Map. Mr. Sams stated the planned structures will range in size from 2,800 s.f. to 3,500 s.f. in size and will be constructed in the craftsman style. Mr. Sams provided details of the planned architectural style of the proposed structures to those present. Mr. Sams stated the applicant is agreeable to a number of stipulations, and to arranging for a third-party management company to administer the community's homeowners association (HOA). Mr. Sams stated the private street within the development will be built to City standards and maintained by the HOA. Mr. Sams stated that all the proposed houses will feature two-car garages. Mr. Sams provided details to those present concerning the landscaping planned for the development. Mr. Sams stated that the developer is willing to agree to a stipulation requiring that the zoning of the subject property revert to the last zoning classification which existed there previously in the event that development there does not commence within twelve months of approval of the rezoning plan under consideration at this meeting. Mayor Bacon recognized Ms. Jane Ray, residing at 3850 West Cooper Lake Drive, and Ms. Ray stated there is opposition to the proposed development. Ms. Ray expressed the view that the residents in the area do not have complete information regarding the proposed development. Ms. Ray stated that approval of an R-12 zoning could set a precedent for the subject area. Ms. Ray stated that the developer should be required to adhere to the 2001 agreement for the subject tract which specified a total of six houses. .. Mayor Bacon recognized Mr. Andrew Ray, residing at 3850 West Cooper Lake Drive, and Mr. Ray expressed opposition to the proposed rezoning. Council Member Wood recognized Mr. Miller, and Mr. Miller stated that nearly all the contiguous property in the subject area is zoned R-15. Mr. Miller stated that Karen Court is located near the subject tract, and that Karen Court is zoned R-15. Mr. Miller stated that the R-15 classification means the minimum lot sizes in areas zoned this way must be at least 15,000 s.f. Mr. Miller stated that Karen Drive includes lots that range in size from 17,000 s.f. to 20,000 s.f. Mr. Miller stated that lots in Vinings Oaks range in size from 16,000 s.f. to 18,000 s.f. Mr. Miller stated it is the City staffs opinion that rezoning the subject property with an allowed density of 2.68 units per acre would result in a development compatible with others in the subject area. Council Member Lnenicka asked Mr. Miller if he believes it is appropriate for a private street to be in the proposed development. Mr. Miller stated it is generally preferable to have public streets because public streets can be maintained by the City. MOTION: Council Member Wood made a motion to deny Rezoning Request Z04-009 from R-15 (SFR) to R-12 for a 2.61 acre tract near North Cooper Lake Road and West Cooper Lake Road for Joe Romano. The motion to deny the request was seconded by Council Member Smith. Motion to deny the request was approved 7 - O. (C) Public Hearing - Rezoning Request Z04-011 - R-15 (SFR) to RAD Conditional- 2585 Old Roswell Road - Vinings Construction Co., LLC ... MOTION: Council Member Scoggins made a motion to table Rezoning Request Z04-011 from R-15 (SFR) to RAD Conditional for 2585 Old Roswell Road for Vinings Construction Co., LLC June 21. 2004 4 until the July 6, 2004 meeting. The motion was seconded by Council Member Newcomb. Motion was approved 7 - O. (D) Annexation Request (100% of Owners requesting Annexation) - 2.2 Acre Tract - 18th District, 2nd Section, Land lot 62, Parcell - Oakdale Road - James Freeman - Mr. Wright stated there are presently no plans to rezone or redevelop the subject property. Mr. Wright stated the legal description of the subject property has been reviewed by the City Engineer with satisfactory results. Council Member Wood stated the applicant is requesting annexation on behalf of Budget Sales, Inc. MOTION: Council Member Wood made a motion to approve the annexation request for a 2.2 acre tract in the 18th District, 2nd Section, Land lot 62, Parcell near Oakdale Road for James Freeman on behalf of Budget Sales, Inc. to become a part of Ward 7 with an effective date of July 1,2004. The motion was seconded by Council Member Smith. Motion was approved 6 - O. (Clerk's Note: Council Member Lnenicka was not present at the time of the vote) (E) Annexation Request (100% of Owners requesting Annexation) - 0.4 Acre Tract - 17th District, 2nd Section, Land lot 752, Parcel 36 - Oakdale Road - James Freeman Council Member Wood stated the applicant is requesting annexation of the subject tract on behalf of The Freeman Family With Limited Partnership. Council Member Wood stated there are presently no plans to rezone or redevelop the subject property. MOTION: Council Member Wood made a motion to approve the annexation request for a 0.4 acre tract in the 1 ih District, 2nd Section, Land lot 752, Parcel 36 near Oakdale Road for James Freeman on behalf of The Freeman Family With Limited Partnership to become a part of Ward 7 with an effective date of July 1,2004. The motion was seconded by Council Member Smith. Motion was approved 7 - O. - (F) 18.93 Acre Tract - 18th District, 2nd Section; Land Lot 63, Parcels 9, 11, 12, 16,23,27 and 29; Land Lot 170; Parcels 9, 10 and 11 - Oakdale Road - Various Owners 1. Public Hearing - Rezoning Request Z04-006 - Cobb County R-20 to Smyrna RAD Conditional - Oakdale Road - PC Homes, LLC MOTION: Council Member Wood made a motion to table the public hearing for Rezoning Request Z04-006 from Cobb County R-20 to Smyrna RAD Conditional for Oakdale Road for PC Homes, LLC until the July 19,2004 meeting. The motion was seconded by Council Member Smith. Motion was approved 7 - o. 2. Approval of Annexation Request (100% of property owners requesting annexation) - 18.93 Acre Tract - 18th District, 2nd Section; Land Lot 63, Parcels 9, 11, 12, 16,23,27 and 29; Land Lot 170; Parcels 9, 10 and 11 - Oakdale Road - Various Owners MOTION: Council Member Wood made a motion to table the approval of annexation request for a 18.93 acre tract in the 18th District, 2nd Section; Land Lot 63, Parcels 9, 11, 12, 16,23,27 - June 21. 2004 5 and 29; Land Lot 170; Parcels 9, 10 and 11 near Oakdale Road for various owners until the July 19,2004 meeting. The motion was seconded by Council Member Smith. Motion was approved 7-0. - 3. Approval of Rezoning Request 204-006 - Cobb County R-20 to Smyrna RAD Conditional - Oakdale Road - PC Homes, LLC MOTION: Council Member Wood made a motion to table the approval for Rezoning Request 204-006 from Cobb County R-20 to Smyrna RAD Conditional for Oakdale Road for PC Homes, LLC until the July 19,2004 meeting. The motion was seconded by Council Member Smith. Motion was approved 7 - O. (G) Public Hearing - Amendment of Tree Preservation Ordinance - Increase in Size Requirement for Understory Specimen Trees - Sec. 106-30 - [Ordinance 2004-24] Council Member Newcomb stated that, based on the recommendation of the City arborist, the required minimum diameter for specimen dogwoods, redbuds, sourwoods and similar trees requiring replacement will be increased from 4" to 10." MOTION: Council Member Newcomb made a motion to approve amendment of Sec. 106-30 (a) (1) c. of the City of Smyrna Code of Ordinances to reflect an increase from 4" to 10" in the required minimum diameter for specimen dogwoods, redbuds, sourwoods and similar trees requiring replacement. The motion was seconded by Council Member Pritchett. Motion was approved 7 - O. PRIVILEGE LICENSES: - There were none. FORMAL BUSINESS: (A) Public Hearing - Adoption of Proposed Fiscal Year 2005 Budget Mayor Bacon stated this is the second public hearing on this matter. Mr. Wright stated that the proposed budget was discussed at the last meeting, and provided details to those present concerning the process involved in crafting a budget. Council Member Wood recognized Ms. Edgar and Mr. Van Antwerp. Council Member Wood provided details of the composition of the proposed budget to those present. Council Member Wood commended the members of the City staff for their cooperation during the process of formulating this budget. Mayor Bacon provided details to those present regarding increases in City insurance costs in recent years. Council Member Lnenicka asked Ms. Edgar what the City's current bond rating is. Ms. Edgar stated the City's bond rating from Standard and Poor's is AA. Council Member Lnenicka asked Ms. Edgar to describe the City's current financial condition, and Ms. Edgar stated the City's financial condition is good. Mayor Bacon stated this is a public hearing and asked for public comment. - Mayor Bacon recognized Mr. Howard Martin, residing at 3435 Lee Street, and Mr. Martin stated he was present at he last council meeting and asked the City's officials to reexamine the lack of June 21. 2004 6 funding budgeted for the sports complex at Campbell Middle School. Mr. Martin stated he has a copy of the Facilities Users Agreement between the City and Cobb County, and that it has taken him six years to obtain this copy. Mr. Martin stated that on February 26, 1998, Ward Park was exchanged for Campbell Middle School. Mr. Martin read an excerpt from the Agreement in which conditions are set forth for the City's use of the sports complex at Campbell Middle School. Mr. Martin expressed the view that it is the City's responsibility to maintain this facility, but that there are no funds budgeted for that purpose. Mr. Martin stated he has written to Cobb County officials regarding this matter, but has not as yet received a response. Mr. Martin stated there is no access for handicapped persons at some of the local parks. Mr. Martin expressed the view that the vote on the proposed budget should be postponed until some funds are budgeted for the sports complex at Campbell Middle School. Mr. Martin stated that he believes some of the deficiencies he has noted represent a potential liability to the City. Mr. Martin asked the officials present if the budget will be changed to add funding for improvements for the sports complex at Campbell Middle School, and Mayor Bacon stated the budget will be approved at this meeting as presented. - Mayor Bacon recognized Ms. Sam Sammon, residing at 6007 Bordeau Walk, and Ms. Sammon expressed concern regarding the amount of funding allocated in the proposed budget for public safety operations. Ms. Sammon expressed the view that the amount budgeted for public safety is not adequate. Ms. Sammon stated she prefers to see tax dollars spent on public safety and protection for the City's residents. MOTION: Council Member Wood made a motion to approve the fiscal year 2005 budget as presented in the total amount of $48,351,586 based on a tentative millage rate of 9.70. The motion was seconded by Council Member Lnenicka. Council Member Lnenicka stated that the budget is based on recommendations from the City's professional staff. Council Member McNabb stated the budgeting process involves the allocation of limited resources. Council Member Newcomb stated the millage rate has been either lowered or left unchanged during every City budget process he recalls participating in. Council Member Pritchett stated she has confidence in the way this budget was prepared, and that she is proud to support it. Council Member Smith stated a great deal of thought and effort went into the preparation of this budget, and that he will support it. Mayor Bacon stated he is proud of the salaries the City pays its public safety personnel. Mayor Bacon stated that the salaries the City of Smyrna pays its police officers and firefighters compare favorably with those paid by other local governments. Motion was approved 7 - O. - COMMERCIAL BUILDING PERMITS: (A) 8,107 s.f. Child Care Center - 4500 North Cooper Lake Road - Sunbrook Academy MOTION: Council Member Wood made a motion to approve the commercial building permit for an 8,107 s.f. child care center at 4500 North Cooper Lake Road for Sunbrook Academy. The motion was seconded by Council Member McNabb. Motion was approved 6 - 0, with Council Member Smith abstaining. (B) 8,760 s.f. OfficelWarehouse - 2640 Mathews Street - ABR Millwork MOTION: Council Member Scoggins made a motion to approve the commercial building permit for an 8,760 s.f. office/warehouse at 2640 Mathews Street for ABR Millwork. The motion was seconded by Council Member Newcomb. Motion was approved 7 - O. - June 21. 2004 7 CONSENT AGENDA: (A) Approval of June 7,2004 Minutes - (B) Approval of Sale of Surplus Vehicles It is recommended that the following vehicles and equipment be approved for disposal at the Cobb County auction on July 10, 2004: Year/Make Mileage VIN# 1999 FORD CROWN VIC 1994 FORD PICK UP 1999 FORD CROWN VIC 1993 NISSAN MAX 1999 FORD CROWN VIC 1996 FORD CROWN VIC 1996 JOHN DEERE 8300HRS 1994 GMC TOP KICK 1995 SCAT TRAK 2FAFP71W8XXl16193 1FTHF25H1RNB36956 2FAFP71 W4XX239750 JN1HJ01F7PT109733 ZFFAFP71W6XX239751 ZF ALP74WXTX192555 T0510DB820204 99713 65682 99084 108600 106157 62830 1 GDL7HIJ7RJ522335 1383 MODEL 1300C 77299 1860 (C) Authorization for the Mayor to Sign the Water Service Agreement with Cobb County This agreement sets forth terms and conditions for the provision of wholesale water and wastewater treatment, and establishes boundaries for retail water and sewer service. - (D) Authorization for the Mayor to Sign the HB 489 Service Delivery Strategy Agreement Extension with Cobb County This extension agreement is contingent upon acceptance of the Water Service Agreement by both parties. MOTION: Council Member Scoggins made a motion to approve the consent agenda. The motion was seconded by Council Member Wood. Motion was approved 6 - 0, with Council Member Lnenicka abstaining. COMMITTEE REPORTS: Council Member Pritchett recognized Mr. Stokes, and Mr. Stokes reminded those present that a holiday service schedule will be in effect during the week of July 4. Mr. Stokes provided details of current water and sewer projects to those present. Council Member Pritchett recognized Ms. Kirk, and Ms. Kirk stated the City Recycling Center will be closed for the 4th of July holiday. Ms. Kirk expressed appreciation to the many volunteers who participated in the recent Great American Cleanup event. Ms. Kirk stated the results of the litter index survey conducted in the City recently were very favorable. Council Member Pritchett expressed appreciation to Ms. Kirk, Mr. Stokes and all the other City personnel for their efforts. - Council Member Newcomb recognized Mr. Miller, and Mr. Miller provided details concerning current building permit statistics to those present. Council Member Newcomb expressed appreciation to Mr. Miller and the Community Development Department staff for their efforts. June 21. 2004 8 Council Member Scoggins recognized Ms. Hiott, who provided details and statistics concerning current City court and probation operations to those present. Council Member McNabb recognized Mr. Seigler, who provided details to those present regarding current City Library statistics and activities. -- Council Member McNabb recognized Mr. Ciaccio, and Mr. Ciaccio provided a report to those present on the status of the Phase III construction at Chuck Camp Park. Mr. Ciaccio asked everyone to be responsible in the manner in which they handle glass containers brought to public events to help minimize the risk of hazards posed by broken glass. Council Member McNabb recognized Ms. Bennett, and Ms. Bennett encouraged citizens to utilize the City's web site as a source of information for City events and operations. Ms. Bennett provided details to those present regarding upcoming City events and activities. Council Member Smith recognized Mr. Corey, and Mr. Corey provided details to those present regarding positions for which the City is presently recruiting. Mr. Corey expressed condolences to the family of Teresa Elliott, a former City employee who passed away this week. Council Member Lnenicka recognized Acting Fire Chief Lanyon, and Acting Fire Chief Lanyon stated the fire department's administrative offices will be closed during the upcoming holiday. Acting Fire Chief Lanyon stated City firefighters will be collecting donations this week for the benefit of the Georgia Firefighter Bum Foundation. At Council Member Lnenicka's request, Acting Fire Chief Lanyon provided details to those present regarding assistance he and other City firefighters provided in Savannah during the recent G-8 conference. Council Member Lnenicka recognized Chief Hook, and Chief Hook provided statistics to those present regarding City police operations for the month of April. -- Council Member Lnenicka stated the mother of Eric Cash recently passed away, and he expressed condolences to the family of Mr. Cash. Council Member Lnenicka stated that tomorrow is his wedding anniversary, and he expressed appreciation to his wife Robin for her patience over the years. Council Member Wood recognized Ms. Edgar, who had no report. Mayor Bacon recognized Mr. Wright, who commended Ms. Edgar and Mr. Van Antwerp for their work on the 2005 City budget. Mr. Wright congratulated Ms. Edgar and Mr. Stokes on their recent service anniversaries. CITIZENS INPUT: Mayor Bacon recognized Mrs. Jean Martin, residing at 3435 Lee Street, and Mrs. Martin stated Mr. Howard Martin addressed the City's officials this evening in an attempt to have the City budget re-evaluated. Mrs. Martin expressed disapproval of Mayor Bacon's manner of disagreeing with Mr. Martin. Mayor Bacon recognized Mr. Gordon O'Neill, and Mr. O'Neill stated he is a candidate for the District 2 post of the Cobb County Board of Commissioners. Mr. O'Neill invited everyone present to a gathering this Saturday at the American Legion for an opportunity to meet with him and his campaign staff. -- June 21,2004 9 SHOW CAUSE HEARING: - (A) Show Cause Hearing - EI Pastor - 350 Pat Mell Road - Hyung Tae Kim, Agent Mayor Bacon recognized Ms. Vicky Templeton, who is an attorney representing the applicant. Mr. Cochran administered the oath to several persons scheduled to give testimony in this matter. Mr. Cochran stated the present matter before the council is a show cause hearing for several allegations, including selling an alcoholic beverage to a minor in violation ofa City ordinance, selling alcoholic beverages outside of approved hours in violation of a City ordinance, selling alcoholic beverages on Christmas Day in violation of a City ordinance, serving alcoholic beverages by an employee without a proper City permit with photograph in violation of a City ordinance and serving alcoholic beverages to intoxicated persons in violation of State law. .... Mr. Cochran recognized Ofc. Randy Dobson of the City police department. Mr. Cochran asked Ofc. Dobson if he was present at the subject location on Christmas Day of December, 2003, and Ofc. Dobson answered in the affirmative. Mr. Cochran asked Ofc. Dobson why he was at the subject location at that time, and Ofc Dobson stated that the shift supervisor directed the uniform officers on duty to check all the local establishments to determine whether or not any alcoholic beverages were being sold on Christmas Day. Mr. Cochran asked Ofc. Dobson why the possible sale of alcoholic beverages on Christmas Day would be a matter of concern to the City police department, and Ofc. Dobson stated that selling alcoholic beverages on Christmas Day is a violation of a City ordinance. Mr. Cochran asked Ofc. Dobson what he observed at EI Pastor when he went there. Ofc. Dobson stated that EI Pastor was the first location he checked on that date. Ofc. Dobson stated he arrived on the scene at EI Pastor at approximately 10:20 p.m. and entered the establishment, and at that time he observed several patrons drinking alcoholic beverages. Ofc. Dobson stated he also observed that the bar was open and that alcoholic drinks were being served. Mr. Cochran asked Ofc. Dobson ifhe issued a citation at that establishment for the violation of selling alcoholic beverages on Christmas Day, and Ofc. Dobson answered in the affirmative. Mr. Cochran asked Ofc. Dobson ifhe knows what the result of the citation was in court, and Ofc. Dobson said no. Mr. Cochran asked Ofc. Dobson if he would be surprised to learn that there was a guilty plea and a $600 fine in connection with this citation, and Ofc. Dobson stated he would not be surprised to hear this. Ms. Templeton asked Ofc. Dobson if he knows who the owner of EI Pastor was at the time he issued this citation, and Ofc. Dobson said no. Ms. Templeton asked Ofc. Dobson ifthe person he issued the citation to is the owner of the establishment, and Ofc. Dobson stated he does not know. - Mr. Cochran recognized Ofc. Louis Defense of the City police department. Mr. Cochran asked Ofc. Defense if he was present at the subject location on January 9, 2004, and Ofc. Defense answered in the affirmative. Mr. Cochran asked Ofc. Defense why he was at the subject location at that time, and Ofc. Defense stated he was conducting a compliance check there with Ofc. Maloney, Ofc. Bill Turner and Lt. Keith Zgonc. Mr. Cochran asked Ofc. Defense what occurred at the subject location on that date, and Ofc. Defense stated he entered the establishment with an undercover informant, he sat down at the bar with the informant, the informant ordered beer, the beer was served to the informant by an individual identified as Karina Galvin, and the informant paid for the beer. Ofc. Defense stated at that point he exited the establishment to alert Ofc. Maloney. Mr. Cochran asked Ofc. Defense what the age of the informant who purchased the beer was, and Ofc. Defense stated the informant was 20 years old. Mr. Cochran asked Ofc. Defense if a citation was issued, and Ofc. Defense answered in the affirmative. Mr. Cochran asked Ofc. June 2 J, 2004 10 Defense what offense the citation was issued for, and Ofc. Defense stated it was for selling an alcoholic beverage to a minor. Ms. Templeton asked Mr. Cochran what date this incident occurred on, and Mr. Cochran stated it was January 9, 2004. - Mr. Cochran recognized Ofc. L. A. Maloney of the City police department. Mr. Cochran asked Ofc. Maloney to describe to those present what he observed at the subject location on January 9, 2004. Ofc. Maloney stated compliance checks for alcoholic beverage sales were being conducted in the City on that date. Ofc. Maloney stated an underage informant working for the City police department was sent into the bar area of the subject location to find out whether or not the informant could purchase alcoholic drink. Ofc. Maloney stated the informant was able to purchase an alcoholic drink from an individual at the bar at the subject location, and that the purchase was witnessed by Ofc. Defense. Ofc. Maloney stated that after the beer was purchased, Ofc. Defense exited the establishment to alert him and other officers. Ofc. Maloney stated that he entered the establishment along with other officers and approached the individual who had sold the beer to the informant. Ofc. Maloney stated that the individual who had sold the beer to the informant was taken to another part of the establishment and was questioned and advised what she had done. Ofc. Maloney stated that the individual who had sold the beer to the informant does not understand English, and that the assistance of a translator was needed in order to talk with her. Ofc. Maloney stated that the manager of the establishment made contact with him, and advised him that this was the first day on the job for the individual who had sold the beer to the informant. Ofc. Maloney asked the manager to let him see the employment application of the individual who had sold the beer to the informant, and Ofc. Maloney stated the only information contained in the application was a name and address. Ofc. Maloney stated he asked the individual who had sold the beer to the informant for some identification, and she had none. Ofc. Maloney stated he asked the individual who sold the beer to the informant if she was in this country on a work permit, and she could not provide any documentation regarding her residency in this country. Ofc. Maloney stated the individual who had sold the beer to the informant was issued a citation for the violation of selling an alcoholic beverage to a minor. Ofc. Maloney stated the individual who sold the beer to the informant was arrested and then transported to the City jail because there was no assurance she would appear at her court date. Ofc. Maloney stated he did not issue a citation to the individual who sold the beer to the informant for the violation of not having a proper City permit with a photograph. Ofc. Maloney stated the individual who had sold the beer to the informant did not have a proper City permit with a photograph, which is also a violation of a City ordinance. Ofc. Maloney stated the individual who sold the beer to the informant would not have been able to obtain a City permit for serving alcoholic drinks because she does not have proper documentation. Mr. Cochran asked Ofc. Maloney who the manager he talked to at that time was, and Ofc. Maloney stated it was Mr. Kim. Ms. Templeton asked Ofc. Maloney if he was aware at that time that this was the first day on the job for the individual who had sold the beer to the informant, and Ofc. Maloney stated that Mr. Kim had advised him that it was her first day on the job. Ms. Templeton asked Ofc. Maloney if it is correct that he did not issue a citation to the individual who sold the beer to the informant for the violation of not having a proper City permit with a photograph, and Ofc. Maloney answered in the affirmative. Ms. Templeton asked Ofc. Maloney ifhe witnessed the informant purchasing beer at the subject location, and Ofc. Maloney stated he observed the informant going to the bar from the outside of the establishment. Mr. Cochran asked Ofc. Maloney why he did not issue a citation to the individual who sold the beer to the informant for the violation of not having a proper City permit with a photograph, and Ofc. Maloney stated he had issued the individual who sold the beer to the informant a citation for the violation of selling an alcoholic beverage to a minor, which was the principle focus of the undercover operation. Council Member Smith asked Ofc. Maloney ifhe knows whether or not the individual who sold the beer to the informant asked the informant for identification, and Ofc. Maloney stated he does not know. Council Member Smith asked Ofc. - - June 21. 2004 11 - Maloney if he knows whether or not the individual who sold the beer to the informant was provided with any training for properly selling alcoholic beverages, and Ofc. Maloney stated he does not know. Council Member Lnenicka asked Ofc. Maloney it is correct that the individual who sold the beer to the informant had no identification at all, and Ofc. Maloney answered in the affirmative. - Mr. Cochran recognized Mr. Simon Cardenas, who is a City marshal. Mr. Cochran asked Mr. Cardenas how long he has been employed by the City in this capacity, and Mr. Cardenas stated he has been a City marshal for two and a half years. Mr. Cochran asked Mr. Cardenas if he was at EI Pastor on May 17,2004, and Mr. Cardenas answered in the affirmative. Mr. Cardenas stated that after departing the location of a part-time job he was working at around 3:30 a.m., he heard on the radio that there was a fight at EI Pastor. Mr. Cardenas stated that, because EI Pastor is purportedly frequented by many Spanish-speaking people, he proceeded to that location. Mr. Cardenas stated that when he arrived there, he observed that the establishment was still open and selling alcoholic drinks. Mr. Cochran asked Mr. Cardenas what time he arrived at EI Pastor, and Mr. Cardenas stated he arrived there at around 3:40 a.m. Mr. Cochran asked Mr. Cardenas why these circumstances seemed significant to him, and Mr. Cardenas stated that the City ordinance requires cessation of alcoholic beverage sales at 2:55 a.m., and that the establishment should be empty by 3:30 a.m. Mr. Cochran asked Mr. Cardenas what day of the week this incident occurred on, and Mr. Cardenas stated it was Sunday morning. Mr. Cochran asked Mr. Cardenas how many people were inside the establishment at the time he arrived, and Mr. Cardenas stated 70 to 80 people were there. Mr. Cochran asked Mr. Cardenas to describe the atmosphere inside the establishment when he arrived, and Mr. Cardenas stated it seemed as though a party was going on. Mr. Cochran asked Mr. Cardenas if he observed people drinking alcoholic beverages, and Mr. Cardenas answered in the affirmative. Mr. Cochran asked Mr. Cardenas if he observed people serving alcoholic beverages at the establishment, and Mr. Cardenas answered in the affirmative. Mr. Cochran asked Mr. Cardenas where he had been working before arriving at EI Pastor, and Mr. Cardenas stated he had been working at a night club which was closed at 3:00 a.m. and empty of customers by 3:30 a.m. Mr. Cochran asked Mr. Cardenas if he observed any persons at EI Pastor whom he had also observed that morning at the night club he departed from earlier. Mr. Cardenas stated he observed at least two persons at EI Pastor whom he had also seen at the location where he was working earlier that morning. Mr. Cochran asked Mr. Cardenas if it appeared that people were leaving other establishments when they closed and then going to EI Pastor, and Mr. Cardenas answered in the affirmative. Mr. Cochran asked Mr. Cardenas if he issued anyone at EI Pastor a citation, and Mr. Cardenas said no. Mr. Cardenas stated he made contact with the owner of the establishment and advised the owner that he was in violation of a City ordinance and that he must close the establishment. Mr. Cardenas stated that all the customers then departed from EI Pastor within about fifteen minutes. Mr. Cardenas stated he contacted Ofc. Maloney on the following Monday to tell him about the incident, and that Ofc. Maloney subsequently issued a citation to the establishment. Ms. Templeton asked Mr. Cardenas if it is correct that he arrived at the location at approximately 3:45, and Mr. Cardenas answered in the affirmative. Ms. Templeton asked Mr. Cardenas if it is correct that he observed 70 to 80 people at EI Pastor, and Mr. Cardenas answered in the affirmative. Ms. Templeton asked Mr. Cardenas if anyone at EI Pastor served him any alcoholic beverages, and Mr. Cardenas said no. Ms. Templeton asked Mr. Cardenas if it is correct that he spoke with Mr. Kim at that time, and Mr. Cardenas answered in the affirmative. Ms. Templeton asked Mr. Cardenas if it is correct that he asked Mr. Kim if he had an extension to sell alcoholic drinks, and Mr. Cardenas stated that it is not possible to obtain an extension for selling alcoholic beverages on Saturday night. Ms. Templeton asked Mr. Cardenas if it is correct that the deadline for alcoholic beverage sales on Saturday night is 3:30, and Mr. Cardenas stated it is 2:55 a.m. - June 21. 2004 12 Ms. Templeton asked Mr. Cardenas if it is correct that he did not issue a citation at that time, and Mr. Cardenas stated he did not. Ms. Templeton asked Mr. Cardenas if it is correct that no one at El Pastor served him any alcoholic beverages, and Mr. Cardenas answered in the affirmative. Mr. Cochran asked Mr. Cardenas if he went to El Pastor to be served alcoholic drink, and Mr. Cardenas said no. Mr. Cardenas stated he went to that location in response to a report of a fight and, because El Pastor is frequented by many Spanish-speaking people, he felt as though translation assistance might be needed. Mr. Cardenas stated that at the time he arrived on the scene, the fight was apparently over. Mr. Cochran asked Mr. Cardenas if he was dispatched to the location in response to a report of a fight, and Mr. Cardenas stated he was monitoring the radio when he heard the broadcast, and went to El Pastor to provide assistance. Ms. Templeton asked Mr. Cardenas what his official job title is, and Mr. Cardenas stated his title is City marshal. Ms. Templeton asked Mr. Cardenas what his official job duties are, and Mr. Cardenas stated he enforces city codes of Smyrna. Ms. Templeton asked Mr. Cardenas if he received a call to respond to El Pastor, and Mr. Cardenas stated he was monitoring the radio when he heard the broadcast, and went to El Pastor to provide assistance. Mr. Cardenas stated that because El Pastor is frequented by many Spanish-speaking people, he felt as though translation assistance might be needed. Council Member Lnenicka asked Mr. Cardenas if Mr. Kim gave him any explanation as to why he was open and if he seemed to understand that being open at that hour is a violation, and Mr. Cardenas stated that Mr. Kim said he did not know he was not allowed to be open at that time. Council Member Lnenicka stated that during the hearing for Mr. Kim's privilege license, Mr. Kim was asked if he had read the City alcoholic beverage ordinance and if he understands it, and Mr. Kim said yes. Council Member Lnenicka asked Mr. Cardenas if it is correct that, on the morning of May 17, 2004, Mr. Kim told him he did not know that the ordinance required the business to be closed at that time, and Mr. Cardenas answered in the affirmative. Council Member Lnenicka asked Mr. Cardenas if Mr. Kim took steps to close the establishment after he was informed that he is not allowed to be open for business at that hour, and Mr. Cardenas answered in the affirmative. Council Member Smith asked Mr. Cardenas if Mr. Kim indicated at that time when he planned to close the establishment, and Mr. Cardenas said no. - - Mr. Cochran recognized Det. Robert Harvey with the City police department. Mr. Cochran asked Det. Harvey if he was at El Pastor on June 1,2004, and Det. Harvey answered in the affirmative. Det. Harvey stated he was called out at around 4:30 a.m. on that date to investigate a shooting and a report of a person struck by a vehicle at the subject location. Det. Harvey stated that at around 1: 19 a.m. on that date a fight ensued between five or six Hispanic males in the parking lot at El Pastor. Det. Harvey stated one of the subjects used a 9 mm handgun to shoot another subject in the calf. Det. Harvey stated another individual was struck at that location by a truck departing from the scene. Det. Harvey stated that investigation disclosed that four of the known assailants had been in the establishment from around 11 :00 p.m. on the night of May 31 until the time of the fight. Det. Harvey stated the subjects had been drinking alcoholic beverages at El Pastor. Mr. Cochran asked Det. Harvey if any of the assailants indicated how much alcohol they had consumed on the night of the incident. Det. Harvey stated that, with translation assistance from Mr. Cardenas, he interviewed some of the assailants and that the persons interviewed said they drank at least six to seven beers that night before leaving the establishment. Mr. Cochran asked Det. Harvey if the persons interviewed stated that the six to seven beers they consumed had been consumed at El Pastor, and Det. Harvey answered in the affirmative. Mr. Cochran asked Det. Harvey if it is correct that he was initially called to respond to a report of a fight, and that it was subsequently determined that there was also an incident at the subject location on that date in which a person was struck by a vehicle, and Det. Harvey answered in the affirmative. Det Harvey stated that two of the assailants took the person who had been shot to Kennestone June 21. 2004 13 - Det. Harvey stated that when it was determined where the incident had taken place, City authorities were summoned to investigate, and it was discovered that the male subject who had been struck by a vehicle had been at the parking lot of the subject location for three or four hours before he was found. Ms. Templeton asked Det. Harvey to clarify the sequence of events and times which he described, and Det. Harvey stated that at 1:19 a.m. a fight ensued at the subject location, and that at 4:30 a.m. he was called to come investigate the incident. Ms. Templeton asked Det. Harvey if it is correct that he was on the scene at 1: 19 a.m., and Det. Harvey stated he was not. Ms. Templeton asked Det. Harvey if it is correct that he was on the scene at the parking lot of the subject location at 4:30 a.m., and Det. Harvey stated he was not. Det. Harvey stated he was on the scene at 5:00 a.m. Ms. Templeton asked Det. Harvey ifhe can describe the parking lot of El Pastor and if there are other adjacent parking lots there. Det. Harvey stated there is an auto parts store one building east of the subject location, and that Frank Lane is on the west side of the building. Ms. Templeton asked Det. Harvey where the male subject was found, and Det. Harvey stated he was found in between the parking lots at El Pastor and the auto parts store. Ms. Templeton asked Det. Harvey if the subject was conscious at the time he was found, and Det. Harvey answered in the affirmative. Det. Harvey stated the subject was transported to Grady Hospital, where he remains at this time. Ms. Templeton asked Det. Harvey if the subject found in the parking lot indicated whether or not he had been drinking at El Pastor on the night of the incident. Det. Harvey stated Det. Waddell, with the assistance of a translator, interviewed the subject previously. Det. Harvey stated the subject said he drank six beers that night. Ms. Templeton asked Det. Harvey if all the subjects involved in the altercation who have been interviewed indicated that they all drank the same amount, and Det. Harvey stated that all four persons interviewed so far have stated they drank the same amount. Ms. Templeton asked Det. Harvey if any of the persons interviewed indicated whether or not they had been drinking any alcoholic beverages before they arrived at El Pastor that night. Det. Harvey stated the three subjects who went to Kennestone Hospital stated they had been working that day and had not been drinking before their arrival at El Pastor. Det. Harvey stated he has not been able to interview the subject at Grady Hospital to determine whether or not he had been drinking any alcoholic beverages before he arrived at El Pastor that night. Ms. Templeton asked Det. Harvey to provide details regarding the approximate height and weight of the individuals he has interviewed. Ms. Templeton asked Det. Harvey if it is correct that the subjects had been drinking at the establishment from approximately 11: 15 p.m. until 1: 19 a.m. and that during this period each had consumed approximately six to seven beers, and Det. Harvey said that this is what the subjects have stated. Det. Harvey stated the gunshot victim is about 5'6" to 5'7" tall and weighs about 145 Ibs. and the driver is approximately 6' tall and weighs about 180 Ibs. Det. Harvey stated the other occupant of the van is about 5' 9" to 5' 10" tall and weighs 175 to 180 Ibs. Det Harvey stated the subject at Grady Hospital weighs about 200 lbs. and is about 6' tall. Ms. Templeton asked Det. Harvey if he is familiar with the effects of alcohol on the human system, and Det. Harvey stated he is not an expert on such matters. Ms. Templeton asked Det. Harvey if it is possible, given the sizes of these individuals, that consumption of six or seven beers would not cause them to be intoxicated. Det. Harvey stated he believes that consumption of six or seven beers over a period of a couple of hours would cause someone of the stature of these persons to become intoxicated. Ms. Templeton asked Det. Harvey if it is correct that the gunshot victim had been taken to the hospital before Det. Harvey arrived on the scene, and that Det. Harvey did not interview him until a subsequent time, and Det. Harvey answered in the affirmative. Ms. Templeton asked Det. Harvey if there was any testing or documentation of the gunshot victim's blood alcohol content at the time he was hospitalized, and Det. Harvey stated he has no such information at this time. Det. Harvey stated that there is a report on file at the hospital which must be accessed through subpoena, and that he has information from the nursing staff at the hospital indicating the gunshot victim was under the influence of alcohol at the time of his admission. Ms. Templeton asked Det. Harvey if it is correct that the gunshot victim was shot - - June 21. 2004 14 some time between 1:19 a.m. and 4:30 a.m. on the incident date, and Del. Harvey stated video evidence indicates the altercation occurred at exactly 1:19 a.m. Ms. Templeton asked Del. Harvey if the video evidence has revealed who was responsible for the incident in which an individual was struck by a vehicle, and Det. Harvey stated the investigation into that incident is still pending. Ms. Templeton asked Det. Harvey if there is any indication as to what time the incident in which an individual was struck by a vehicle may have occurred, and Det. Harvey stated the incident in which an individual was struck by a vehicle occurred at nearly the same time as the shooting incident, i.e., between 1:19 a.m. and 1:20 a.m. Ms. Templeton asked Det. Harvey if the incident in which an individual was struck by a vehicle was captured on video tape, and Del. Harvey answered in the affirmative. Ms. Templeton asked Det. Harvey if it is correct that the person who was struck by a vehicle was not found until three or four hours after the incident, and Det. Harvey answered in the affirmative, adding that the person who was struck by a vehicle was not found until around 3:30 a.m.. Mr. Cochran asked Det. Harvey if it is correct that the evidential video tape referred to is not a police video tape, and Det. Harvey stated it is Mr. Kim's video tape. Mr. Cochran asked Det. Harvey if it is correct that ownership of the evidential video tape was determined by subsequent review of the tape, and Det. Harvey answered in the affirmative. Mr. Cochran asked Det. Harvey if, in order to clarify the sequence of events, it is correct that his investigation has disclosed that at least four of the individuals involved in the fight were at the bar for about two hours, that each of them by their own admission drank six to seven beers while at the bar and then went outside the establishment and were involved in a fight which resulted in one person being shot and another being struck by a vehicle, and Det. Harvey answered in the affirmative. Council Member Smith asked Det. Harvey if there is any indication any of the persons involved in the altercation ate anything while at the establishment, and Det. Harvey said no. Det. Harvey stated that this question has been previously directed to at least some of the subjects, and that none of them have mentioned eating while at the bar. Council Member Smith asked Det. Harvey if the fact that none of the subjects seem to have eaten anything while at the bar may have affected the level of intoxication of the subjects, and Det. Harvey stated it is possible this could have had a minor effect. Det. Harvey expressed the view that consuming six to seven servings of beer over a period of approximately two hours is a fairly high rate of consumption, but that he is uncertain what effect the fact that none of the subjects seem to have eaten anything may have had. Council Member Lnenicka asked Det. Harvey where the camera which produced the evidential video tape is located, and Det. Harvey stated it is on the east side of the building. Det. Harvey stated it appears that the entire incident did not occur within range of the camera, and that the camera is set at a delayed rate of exposure which captures an image every few seconds. Council Member Lnenicka asked Det. Harvey what the purpose of these cameras at the establishment is, and Det. Harvey stated he believes they are security cameras. Council Member Lnenicka asked Det. Harvey if the security cameras at the establishment are linked to a monitor, and Det. Harvey stated that all the cameras at the establishment are linked to a multiplex VCR. Det. Harvey stated that at the time of the incident he was able to obtain the evidential tape from Mr. Kim. Det. Harvey stated Mr. Kim's VCR was removed from the premises of EI Pastor and taken to the City police station where the tapes were reviewed and pertinent images were identified. Council Member Lnenicka asked Det. Harvey approximately how many employees were on duty at EI Pastor that night, and Det. Harvey stated no one was at the establishment at 5:00 a.m. when he arrived, and that he had to telephone Mr. Kim to meet him there. Council Member Lnenicka asked Det. Harvey approximately how many employees were on duty at EI Pastor at the time of the fight, and Det. Harvey stated he does not know. Council Member Lnenicka asked Det. Harvey if anyone associated with EI Pastor has attempted to explain why a disturbance involving a shot fired, an individual being struck by a vehicle, and a victim of said collision lying in the parking lot for hours apparently went unnoticed. Det. Harvey stated that, based on his experience, it appears that when this establishment closes at night, the doors are locked and the employees remain inside. Det. Harvey - - - June 21. 2004 15 - speculated that when the staff is occupied with the activities of their work, they may not be mindful of what is going on outside the building. Council Member Lnenicka expressed shock at the fact that a sizeable number of customers, the establishment's staff and the owner would leave the building and not see a person lying in the parking lot obviously in need of aid. Council Member Smith asked Det. Harvey if the individual who was struck by a vehicle was lying in a location where the individual would have been in plain sight of persons leaving the establishment, and Det. Harvey answered in the affirmative. Det. Harvey stated the individual who was struck by a vehicle was lying fourteen feet from the northwest comer of the nearby auto parts store in a parking space. Det. Harvey stated there were no cars in the parking lot of the auto parts store. Det. Harvey stated the nearby roadway is at a somewhat higher elevation than the parking lot, so the the parking lot may not be highly visible to motorists passing by. Council Member Smith asked Det. Harvey if any of the businesses around EI Pastor were open at the time of the incident, and Det. Harvey said no. Council Member Wood asked Det. Harvey if there was any indication there was anyone in the establishment at the time he arrived on the scene. Det. Harvey stated the business was open at the time the fight ensued and did not close until 1 :30 a.m. Det. Harvey stated the fight started between 1: 15 and 1 :20. Det. Harvey stated he was not called to respond to the location until 4:30 a.m. Det. Harvey stated that, according to Mr. Kim's testimony, the establishment was closed at 1 :30. Council Member Newcomb asked Det. Harvey if his investigation has revealed any evidence to indicate that alcoholic beverages were served to persons at EI Pastor who were intoxicated, and Det. Harvey stated he believes so. Council Member McNabb asked Det. Harvey if it is correct that, when Det. Harvey arrived on the scene at 5:00 a.m. on the incident date, there was no crime scene established at the subject location and that no representatives from other jurisdictions were present. Det. Harvey stated that personnel from two other jurisdictions were involved, and the area from the auto parts store to Frank Lane was cordoned off with crime scene tape. Det. Harvey stated that Sgt. Bennett, Lt. Black and Ofc. James from the City police department were on the scene at the time he arrived. Council Member McNabb asked Det. Harvey what time it was when the first law enforcement unit arrived on the scene on the date of the incident. Det. Harvey stated Ofc. Rick James was the first person on the scene, and that Ofc. James found the individual who had been struck by a vehicle. Council Member McNabb asked Det. Harvey what time this occurred, and DeL Harvey stated it was around 3 :30. Council Member McNabb asked Det. Harvey if it is correct that the individual who was struck by a vehicle was lying in the parking lot near the subject location, unnoticed and unattended, for at least two hours, and Det. Harvey answered in the affirmative. Council Member McNabb asked Det. Harvey if he accompanied Mr. Kim inside the establishment at the time he retrieved the evidential video tape, or if Mr. Kim simply handed over the tape to Det. Harvey with the explanation that he had a security tape of the crime scene. Det. Harvey stated that, after it was learned that a video tape was available, Lt. Black, Capt. Waldrop and Det. Lee viewed the video tape inside the establishment. Det. Harvey stated he went to Kennestone Hospital to assist with the investigation of the person shot, and that he did not see the video tape that morning. Det. Harvey stated he made contact with Mr. Kim on the afternoon of June 1, and made arrangements to borrow the multiplex machine and reviewed the video tape subsequently. Council Member McNabb asked Det. Harvey if the video cameras at the establishment have the capability to provide real-time monitoring of the premises, or if they are strictly for the purpose of video recording. Det. Harvey stated he believes the video equipment at the establishment is dual- purpose and capable of monitoring as well as recording. Council Member McNabb asked Det. Harvey if there was any employee of EI Pastor monitoring the security cameras at the time of the incident, and Det. Harvey stated that, according to Mr. Kim's testimony, there was not. Council Member McNabb asked Det. Harvey ifhis investigation has revealed whether or not Mr. Kim had any off-duty police officers, private security or any other personnel responsible for checking conditions in the parking lots and the areas outside the building during hours of operation, and Det. Harvey stated there were no such personnel on duty that night. Mr. Cochran stated that the - - June 21,2004 16 current alcoholic beverage sales license for EI Pastor was granted at the council meeting held on December 15,2003, and that copies of the minutes from that meeting are available for inspection. Council Member Lnenicka asked Mr. Cochran if the minutes reflect that the applicant was asked if he understands the regulations governing the sale of alcoholic beverages, and Mr. Cochran answered in the affirmative. - Ms. Templeton asked Mr. Kim if he is the owner of EI Pastor, and Mr. Kim answered in the affirmative. Ms. Templeton asked Mr Kim ifhe is familiar with and recalls the violation of selling an alcoholic beverage to a minor, and Mr. Kim answered in the affirmative. Ms. Templeton asked Mr. Kim to provide to those present any details he recalls from the incident on January 9, 2004 in which an alcoholic beverage was sold to a minor. Mr. Kim stated that on January 9, 2004 there was a waitress on duty who was not supposed to be selling any alcoholic beverages. Mr. Kim stated he believes the waitress sold an alcoholic beverage to an undercover police officer. Ms. Templeton asked Mr. Kim if the person who sold the alcoholic beverage to an underage person was an employee of EI Pastor, and Mr. Kim said no. Ms. Templeton asked Mr. Kim if the person who sold the alcoholic beverage to an underage person had completed an employment application, and Mr. Kim said no. Ms. Templeton asked Mr. Kim if he allowed or directed the person who sold the alcoholic beverage to an underage person to sell alcoholic beverages, and Mr. Kim said no. Ms. Templeton asked Mr. Kim how the person who sold the alcoholic beverage to an underage person happened to be behind the bar at his establishment. Mr. Kim stated the person who sold the alcoholic beverage to an underage person was at the bar to observe other employees at work to try to determine if she might like working there. Mr. Kim stated the undercover police officer came into the establishment within 30 to 45 minutes ofthe time she arrived there. Ms. Templeton asked Mr. Kim if it is correct that the person who sold the alcoholic beverage to an underage person had neither his permission nor the authority to be behind the bar, and Mr. Kim answered in the affirmative. Ms. Templeton asked Mr. Kim in what capacity he was working at EI Pastor on December 25,2003, and Mr. Kim stated he was the manager. Ms. Templeton asked Mr. Kim if it is correct that he was not the owner at that time, and Mr. Kim stated he was not. Ms. Templeton asked Mr. Kim why he sold alcoholic beverages on Christmas Day, and Mr. Kim stated he honestly did not know. Ms. Templeton asked Mr. Kim if it is correct that, as previously stated by Mr. Cochran, he stood before the Mayor and Council Members and told them that he is aware of the City ordinances, and Mr. Kim stated he did not know. Ms. Templeton asked Mr. Kim ifhe stood before the Mayor and Council Members and advised them he is aware ofthe City ordinances, and Mr. Kim answered in the affirmative. Ms. Templeton asked Mr. Kim if, before taking over the restaurant, he had been given any training in regard to the City ordinances, and Mr. Kim said no. Ms. Templeton stated that she assumes the violation of an employee without a proper permit occurred on January 9,2004 at the time of the sale of an alcoholic beverage to a minor, but because the attending officer testified to the effect that no citation was issued for that particular violation, this issue cannot be clearly addressed. Ms. Templeton asked Mr. Kim how many employees he has at EI Pastor, and Mr. Kim said seven, including himself. Ms. Templeton asked Mr. Kim if all of his employees are legal residents ofthe United States with proper identifications, and Mr. Kim said yes. Ms. Templeton asked Mr. Kim if all of his employees have valid permits for selling alcoholic beverages, and Mr. Kim said yes. Ms. Templeton asked Mr. Kim if, since the time he acquired a license for selling alcoholic beverages, he has been issued a citation for employees not having proper identification, and Mr. Kim said no. Ms. Templeton asked Mr. Kim to provide to those present any details he recalls from the incident in which he was given a citation for selling alcoholic beverages outside of the approved hours. Mr. Kim stated he thought that he could stay open until 4:00 on Saturdays. Ms. Templeton asked Mr. Kim ifthere are any other times he can sell alcoholic beverages that late, and Mr. Kim stated he can stay open until 4:00 Monday through Friday. Ms. Templeton asked Mr. Kim ifhe has a permit to do that, and Mr. Kim said yes. Ms. - ... June 21. 2004 17 - Templeton asked Mr. Kim if he has been issued any citations for any offense in regard to the incident of June 1, 2004 at E1 Pastor, and Mr. Kim said no. Ms. Templeton asked Mr. Kim if he has been charged in regard to the incident of June 1,2004 at El Pastor, and Mr. Kim said no. Ms. Templeton asked Mr. Kim if he was present at the time of the altercation at approximately 1 :30 a.m., and Mr. Kim said yes. Mr. Kim stated his nephew was there until 1 :30. Ms. Templeton asked Mr. Kim if it is correct that he left the premises at about 10:30 that evening, and Mr. Kim said yes. Ms. Templeton asked Mr. Kim if he had any security on the premises that evening, and Mr. Kim said he had one part-time man. Ms. Templeton asked Mr. Kim what hours this individual works, and Mr. Kim said 7 :00 until 11 :00 at night. Ms. Templeton asked Mr. Kim who the individual is who was employed that evening, and Mr. Kim said Baer (phonetic). Ms. Templeton asked Mr. Kim how many security personnel he employs for his business, and Mr. Kim said that on Friday, Saturday and Sunday there are two, one of whom is an off-duty police officer. Ms. Templeton asked Mr. Kim if the off-duty officer was working that evening, and Mr. Kim said no. Ms. Templeton asked Mr. Kim how many individuals generally work on the weekend and who performs security, and Mr. Kim said three. Ms. Templeton asked Mr. Kim what their responsibilities are, and Mr. Kim said they stop fights, assist intoxicated people with taxis, and those types of things. Ms. Templeton asked Mr. Kim if they patrol the parking lot area as part of their responsibilities, and Mr. Kim stated they do most of the time. Ms. Templeton asked Mr. Kim what time he was called to return to the restaurant that night, and Mr. Kim said he received the call around 4:00 o'clock and was there between 4:45 and 5:15. Ms. Templeton asked Mr. Kim if it is correct that he has a security camera on the premises, and Mr. Kim answered in the affirmative. Ms. Templeton asked Mr. Kim how the security camera is used, and Mr. Kim stated the camera is used to spot fights and vehicle thefts, and that he watches it sometimes. Ms. Templeton asked Mr. Kim if the camera is monitored regularly, or if it is used to keep track of individuals coming and going, and Mr. Kim said it is used for monitoring only. Ms. Templeton asked Mr. Kim if any of his employees have been given training in regard to City ordinances and selling of alcoholic beverages on the premises, and Mr. Kim said no. Ms. Templeton asked Mr. Kim if he has recently registered any of his employees for such training, and Mr. Kim said he would like to. Mr. Cochran asked Mr. Kim if it is correct that he has three security guards on the premises during weekends, and Mr. Kim answered in the affirmative. Mr. Cochran asked Mr. Kim if it is correct that the security personnel, as a part of their regular responsibilities, put intoxicated people in cabs, and Mr. Kim answered in the affirmative. Mr. Cochran asked Mr. Kim if the security personnel frequently put intoxicated people in cabs, and Mr. Kim said this is done most of the time. Mr. Cochran asked Mr. Kim if he understands that alcoholic beverages should not be served to intoxicated people, and Mr. Kim said that is correct. Mayor Bacon asked Mr. Kim if it is correct that the individual who served an alcoholic beverage to an underage person was not one of his employees, and Mr. Kim answered in the affirmative. Mayor Bacon asked Mr. Kim if the individual who served an alcoholic beverage to an underage person went behind the bar to get the alcoholic beverage, and Mr. Kim said he thinks this happened, but he had no idea at the time. Mayor Bacon asked Mr. Kim if the individual who served an alcoholic beverage to an underage person collected the money from the sale, and Mr. Kim said he does not know. Mayor Bacon asked Mr. Kim if it is correct that he has a total of seven employees, including himself, and Mr. Kim answered in the affirmative. Mayor Bacon asked Mr. Kim how many of the seven employees are wait staff and how many work in the kitchen, and Mr. Kim stated that, including two cooks, there are nine people. Council Member Lnenicka asked Mr. Kim if it is correct that the individual who served an alcoholic beverage to an underage person was not one of his employees, but was being trained to be an employee, and Mr. Kim stated she was supposed to be watching and not selling or touching beer. Council Member Lnenicka asked Mr. Kim if the individual who served an alcoholic beverage to an underage person was in training, and Mr. Kim stated she was only watching to find out if she wants to do the work. Council Member Lnenicka asked Mr. Kim if he has seen the individual who served an - - June 21. 2004 18 alcoholic beverage to an underage person since the incident, and Mr. Kim said no. Council Member Lnenicka asked Mr. Kim if, at the time of the incident, he knew who this person was, where she lived, and if she had any documentation, and Mr. Kim stated she just walked in. Council Member Lnenicka asked Mr. Kim if it is correct that a person can walk into Mr. Kim's business, get access to the bar, serve alcohol and collect money, and Mr. Kim stated she was supposed to be watching only, and that he planned to ask her after watching for a couple of hours if she would like the job or not. Mr. Kim stated the undercover police officer came into the establishment within 45 minutes of the time she arrived there. Council Member Lnenicka asked Mr. Kim if it is correct that this individual was only watching for about 30 minutes before making an illegal sale, and Mr. Kim stated the individual was not supposed to be selling until he said so. Council Member Lnenicka asked Mr. Kim if it is correct that this individual was only there for about 30 minutes before making an illegal sale, and Mr. Kim said maybe 35 minutes. Council Member Lnenicka stated that if the incident occurred at 10:30 p.m., and she was there for 30 minutes, then she would have come into the business at 10:00 o'clock at night to ask about ajob. Mr. Kim stated there was a sign posted on the back door advertising available employment, and that she came in at that time. Council Member Lnenicka asked Mr. Kim if he testified at the council meeting last December to the effect that he planned to train his employees and ensure that they know the law, and Mr. Kim stated he would like to have one more chance. Ms. Templeton stated she would like to have some extra time to become familiar with this situation. Ms. Templeton stated this location has historically been a problem. Ms. Templeton stated the sale of an alcoholic beverage to a minor was something that happened which should not have taken place. Ms. Templeton stated the sale of alcoholic beverages on Christmas Day is a violation which she considers to be a per se violation, and that she believes Mr. Kim understands he cannot do that. Ms. Templeton stated she does not know how to address the matter of an employee without proper identification because she does not have any information in regard to the time when Mr. Kim was involved with the business with the alcohol license. Ms. Templeton stated the sale of alcoholic beverages outside of approved hours is another violation which she considers to be a per se violation. Ms. Templeton stated that Mr. Kim needs to have security personnel with very specific responsibilities, such as the parking lot, identification, checking for weapons and checking bathrooms. Ms. Templeton stated Mr. Kim understands this type of change is necessary to change the way his business is perceived and to change the way his business operates. Ms. Templeton stated she was surprised to learn Mr. Kim had obtained an alcoholic beverage sales license without any training. Ms. Templeton stated Mr. Kim is aware that he needs training and that his staff needs training. Ms. Templeton stated Mr. Kim needs to improve his leadership and communication skills. Ms. Templeton asked Mr. Kim if he has the same employees, and Mr. Kim stated that four are the same, and two are new. Council Member Lnenicka asked Ms. Templeton if Mr. Kim has discussed maintaining his association with her for ongoing guidance and legal advice, and Ms. Templeton said yes. Ms. Templeton asked that Mr. Kim be given an opportunity to correct the problems at his business. - - MOTION: Council Member Newcomb made a motion to recess into executive session. The motion was seconded by Council Member Pritchett. Motion was approved 7 - O. MOTION: Council Member McNabb made a motion to adjourn from executive session. The motion was seconded by Council Member Scoggins. Motion was approved 7 - O. Council Member Smith thanked Ms. Templeton for attending this evening's proceedings.a - June 21. 2004 19 - MOTION: Council Member Smith made a motion to revoke the privilege license for retail pouring of beer for Hyung Tae Kim for EI Pastor, 350 Pat Mell Road, to be effective immediately. The motion was seconded by Council Member Newcomb. Motion was approved 7-0. ADJOURNMENT: With no further business, the meeting was adjourned at 11 :25 p.m. -~ MELLENY PRITCHETT, WARD 1 ~\~~~0-- RON NEWCOMB, WARD 2 - L'~ ~GINS' RD3 /1 ~~~~ CHARLES PETE WOOD, WARD 7 - Ordinance 2004-24 AN ORDINANCE OF THE CITY OF SMYRNA, GEORGIA, PROVIDING THAT _ THE CODE OF ORDINANCES, CHAPTER 106, VEGETATION, ARTICLE II, SEe. 106-30. GENERAL CRITERIA FOR THE DETERMINATION OF SPECIMEN TREES OR STANDS OF TREES, (a) (1) c., BE AMENDED BY REVISING SAID SECTION TO REFLECT AN INCREASE IN THE MINIMUM SIZE REQUIREMENT FOR UNDERSTORY SPECIMEN TREES BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF SMYRNA, GEORGIA: That Chapter 106, Sec. 106-30. (a) (1) c. be amended to read as follows: "10 inch dbh - Small trees such as dogwoods, redbuds, sourwoods, etc." All ordinances, parts of ordinances, or regulations in conflict herewith are repealed as of the effective date of this ordinance. Severability: Should any section of this Ordinar.ce be declared invalid or unconstitutional by any court of competent jurisdiction, such declaration shall not affect the validity of the Ordinance as a whole or any part thereof which is not specifically declared to be invalid or unconstitutional. - Approved by Mayor and Council this 21st day of June, 2004. Attest: /atb- A. Max Bacon, Mayor D.~~ S an D. Hiott, City Clerk City of Smyrna Approved as to form: - ORDINANCE ANNEXING PROPERTY INTO THE CITY OF SMYRNA - Ordinance Number Land Lot 62 Acres 2.2 2004-21 WHEREAS, the City of Smyrna is authorized pursuant to Title 36, Article 2, of the Official Code of Georgia Annotated to allow annexation of property; and WHEREAS, the owners of 100 percent of the land described in Exhibit "A" attached hereto have been notified of the City's desire that their property be annexed into the City of Smyrna as shown on said Exhibit; and WHEREAS, the City of Smyrna held a public hearing on such on June 21, 2004 after first providing notice as required by law; and WHEREAS, the City of Smyrna has determined, and does hereby determine that the annexation of said property into the municipality would be in the best interests of the property owners ofthe area to be annexed and of the citizens of the municipality; and WHEREAS, at a regular meeting of the City Council of Smyrna the motion to approve the annexation of said property passed by a majority vote without veto; and - NOW THEREFORE, BE IT ORDAINED, and it is hereby ordained that the Charter of the City of Smyrna be amended and the same is hereby amended by adding to the description of the City Limits the property herein annexed. Such legal description is attached hereto as Exhibit "A." BE IT ALSO ORDAINED that the Official Map of the City of Smyrna be amended to show the annexation of said property. SO ORDAINED by the City Council of the City of Smyrna, this 21 st June, 2004 .~ A. Max Bacon, Mayor - ~~iR;er~ City of Smyrna \~ -.. . ------, Scott A. Cochran, City Attorney City of Smyrna Ordinance No. 2004-21 - Exhibit "A" All that tract or parcel of land lying and being in Land Lot 62 of the 18th District, 2nd Section, Cobb County, Georgia and being more particularly described as follows: Beginning on the southeast side of Oakdale Road, at an iron pin located on the north side of said Land Lot 62; running thence southwesterly along the southeasterly side of Oakdale Road 150 feet to an iron pin; thence south 53 degrees east 400 feet to an iron pin; thence north 25 degrees east 400 feet to an iron pin located on the north line of said Land Lot 62; thence running west along the north original line of Land Lot 62 a distance of 400 feet to the point of beginning on Oakdale Road, being part of Tract No. 45 of the Chattahoochee Brick Company property, being improved property having a one-story frame residence located thereon, and known as 5861 Oakdale Road, Mableton, Georgia, according to the present system of numbering houses in Cobb County, Georgia. - - ORDINANCE ANNEXING PROPERTY INTO THE CITY OF SMYRNA - Ordinance Number Land Lot 752 Acres 0.4 2004-22 WHEREAS, the City of Smyrna is authorized pursuant to Title 36, Article 2, of the Official Code of Georgia Annotated to allow annexation of property; and WHEREAS, the owners of 100 percent of the land described in Exhibit "A" attached hereto have been notified of the City's desire that their property be annexed into the City of Smyrna as shown on said Exhibit; and WHEREAS, the City of Smyrna held a public hearing on such on June 21, 2004 after first providing notice as required by law; and WHEREAS, the City of Smyrna has determined, and does hereby determine that the annexation of said property into the municipality would be in the best interests of the property owners of the area to be annexed and of the citizens of the municipality; and WHEREAS, at a regular meeting of the City Council of Smyrna the motion to approve the annexation of said property passed by a majority vote without veto; and - NOW THEREFORE, BE IT ORDAINED, and it is hereby ordained that the Charter of the City of Smyrna be amended and the same is hereby amended by adding to the description of the City Limits the property herein annexed. Such legal description is attached hereto as Exhibit '''A.'' BE IT ALSO ORDAINED that the Official Map of the City of Smyrna be amended to show the annexation of said property. SO ORDAINED by the City Council of the City of Smyrna, this 21 st June, 2004 ~ A. Max Bacon, Mayor - ~[).~ Susan D. Hiott, City Clerk City of Smyrna sJ dr~ttorne~ City of Smyrna Ordinance No. 2004-22 - Exhibit "A" All that tract or parcel of land lying and being in Land Lot 752 of the I ih District, 2nd Section, Cobb County, Georgia and being more particularly described as follows: Beginning at a point on the west side of Oakdale Road, said point being located four hundred (400) feet south of the intersection of the west side of Oakdale Road with the north line of Land Lot 752 being also the southeast comer of the Pressley property; and running thence northwest along the southern line of the Pressley property, 170 feet to a point and comer; thence south or southwest parallel with Oakdaie Road, ninety (90) feet to a point and comer; thence south or southeast parallel with the Pressley property one hundred and seventy (170) feet to the west side of Oakdale Road; thence northerly along the west side of Oak dale Road, ninety (90) feet to the point of beginning. - - AFFIDA VIT ... Personally appeared before the undersigned attesting officer, duly authorized to administer oaths, Mayor A. Max Bacon, who after being duly sworn, deposes and on oath states the following: ( 1) I was the presiding officer of a meeting of the Mayor and Council held on the 21 st day of June, 2004. (2) That it is my understanding that O.C.G.A. S50-14-4(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 the 21 st of June, 2004, which was closed for the purpose( s) of discussion of legal matters 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. S50-14-4(b) that such an affidavit be executed. ... This 21st day of June, 2004. Sworn to and subscribed before me This 21 st day of June, 2004. .. . .. ~.~\ ~ ~~ ~ ~ \... . "0'~1 ./ ~ ~~" ~...::. c / ,~ ."......,.'. ....-..... ,...... ~., -,1,.-.1 " //,U'\4 , , \\\'\\ "lillIU'"'' -