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08022004 August 2, 2004 Council Meeting August 2, 2004 - The regular scheduled meeting of Mayor and Council was held at Smyma City Hall. 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 Attomey Scott Cochran, Community Development Director Chris Miller, City Engineer Ken Hildebrandt, Executive Assistant Susan Drinnon and representatives of the press. Invocation was given by Council Member Wood, followed by the pledge to the flag. AGENDA CHANGES: There were none. CITIZENS INPUT: Mayor Bacon recognized Ms. Vema Harvey, residing at 1700 Cumberland Valley Drive, and Ms. Harvey stated she has experienced difficulties with the sewer system near her residence since 1994. Ms. Harvey provided details to those present regarding the drainage and sewer problems at that location. - Mayor Bacon recognized Mr. Alex Backry, and Mr. Backry provided details to those present regarding a newspaper article he read regarding maintenance expenditures for the Market Village and surrounding area. Mr. Backry expressed the view that this expenditure is high, and asked whether or not outside bids could be solicited for this work. Mr. Backry asked why a police STEP unit or similar detachment is no longer posted at fire Station 4 for traffic enforcement. Mayor Bacon stated the information in the newspaper article cited was not entirely accurate, and that the scope of work covered by the expenditures is much larger than what was described in that article. Council Member Lnenicka stated that the newspaper article alluded to was simply wrong, and that one should not always believe what one reads in a newspaper. Council Member Lnenicka stated that City staff members have contacted the editor and reporter responsible for the misleading headlines. Council Member Lnenicka stated he is uncertain where the newspaper received the information used in this instance. Council Member Lnenicka provided details to those present conceming the numerous other areas that are maintained by the City crews referred to in the article. Council Member Lnenicka stated that several years ago grant funds were received by the City police department for special traffic enforcement activities, and that the traffic enforcement unit was housed at Station 4 mainly because the police services building in use at that time did not have room for this unit. Council Member Lnenicka stated the chief of police made a decision to relocate the traffic enforcement unit to the main police station. Council Member Lnenicka stated Station 4 was never a police precinct per se. Council Member Lnenicka stated that Station 4 has been used at various times by other City-related entities not directly connected to the fire department when other suitable space was not available. Mr. Backry expressed the view that someone should insist that a rebuttal be printed by the newspaper in question, and Council Member Lnenicka stated that the City has no control over what the newspapers publish. Council Member Lnenicka stated that some information in the referenced article is essentially correct, but presented in a way which creates the impression that inordinate sums are spent maintaining the Village Green. Mayor Bacon recognized Principal Kehl Amson from Campbell High School (CHS), and Principal Amson expressed appreciation to the City's leadership for their support of CHS. - August 2, 2004 2 Principal Arnson provided details to those present regarding the athletic accomplishments of some of the students at CHS, as well as other upcoming plans and activities. Mayor Bacon stated that Principal Arnson recently received recognition from the PTSA as one of the seven outstanding principals in Georgia. - Mayor Bacon recognized Mr. Jamie Killingsworth, one of the owners ofMoe's Southwest Grill, and Mr. Killingsworth asked whether or not there are any plans in place to expand parking facilities in the area of the Market Village (MV). Mayor Bacon stated the City's leadership is aware of the parking situation there, but there are presently no definite plans in place for possible parking solutions. Mr. Killingsworth asked if a City employee from the Community Development Department could be designated as a contact for the businesses in the MV regarding parking matters, and Mayor Bacon stated that Mr. Miller and Mr. Wright will be willing to meet with the MV business owners concerning parking. Mayor Bacon asked Mr. Killingsworth if he has any parking solutions to suggest, and Mr. Killingsworth stated a proposal for valet parking seems to be worth further review, as well as installation of appropriate signs and other measures. Mayor Bacon recognized Mr. AI Graves, residing at 1079 Pinehurst Drive, and Mr. Graves expressed the view that the notice sent out to customers regarding increases in City utility bills was not an adequate explanation. Mayor Bacon provided details to those present regarding the various factors that have necessitated the price increases. Mayor Bacon stated the fees for storm water management are new fees which were discussed during the last budget hearings. Mayor Bacon stated the City millage rate has not increased. Council Member Wood stated there is a State mandate for preventing storm water from entering sewer systems. Council Member Wood stated such a measure is advantageous because treatment of sewage is more expensive than treatment of storm water. Council Member Wood stated there are a number of projects related to storm water that need to be completed, and that the storm water fees will be used to pay for them. - MAYOR'S REPORT: (A) Appointment of Committee for the Overlay Districts within the City of Smyrna Mayor Bacon stated that creation of overlay districts for residential areas is proposed. Mr. Miller stated that measures to help protect neighborhoods will be taken by making certain that rezonings in adjoining areas are as compatible as possible with other existing uses. Mr. Miller stated that numerous factors will be taken into consideration when determining the compatibility of a proposed use with other existing uses. Mayor Bacon stated that Council Member McNabb will be the chairperson of this committee, and will be assisted by Council Members Lnenicka and Scoggins. Council Member McNabb stated that many people in the community are concerned about development that leads to the destruction of existing homes in mature neighborhoods and the construction of small streets. Council Member McNabb stated measures are being sought to preserve the density and architectural style of some of the older neighborhoods. Council Member McNabb stated that public meetings are planned to solicit input for defining areas and to discuss measures which would be acceptable to residents in those areas. Council Member McNabb stated that a citizens committee will be formed to review zoning language developed by the City staff based on information obtained at public meetings. Council Member McNabb stated that the proposed residential overlay areas will be the first oftheir type in Smyrna. -- August 2. 2004 3 LAND ISSUES/ZONING/ANNEXATION: (A) Public Hearing - Rezoning Request Z04-016 - R-15 to RAD Conditional- King Springs Road - Belmont Development, LLC - Mr. Wright stated the applicant is seeking approval of a new eleven unit development on King Springs Road. Mr. Wright stated the subject tract presently contains three residences and some accessory buildings. Mr. Wright stated the requested rezoning has been recommended for approval by the Planning and Zoning Board (PZB) and that the proposed site plan has been amended and presented to the mayor and council for action at this meeting. Mayor Bacon stated this is a public hearing and asked for public comment, and the oath was administered to several persons by Mr. Cochran. - Council Member McNabb stated that issues associated with Mr. Hatcher's proposal which have been further reviewed include the protection of Pretty Branch Creek and the drainage basin associated with it, the size of the retention pond needed on the subject property, the location of the spring, identification of the area of the drainage basin along the creek, analysis of current storm water runoff on the property and projections of possible runoff increases which may be caused by additional impervious surfaces. Council Member McNabb stated that he recently accompanied Mr. Hatcher and Mr. Hildebrandt on a site inspection of the subject property. Council Member McNabb stated the spring appears to be flowing underground. At Council Member McNabb's request, Mr. Hildebrandt provided details of his analysis of the drainage basin to those present. Mr. Hildebrandt stated that proper storm water detention facilities on the subject property can reduce the runoff rate there. Mr. Hildebrandt stated the reduction rate recommended for this property is 20%. At Council Member McNabb's request, Mr. Hildebrandt provided details of his analysis of the current storm water runoff from the subject property to those present. Mr. Hildebrandt stated a detention pond approximately 50' wide and 100' long has been recommended for the northern comer of the site near King Springs Road. Mr. Hildebrandt stated as Y2' high retaining wall would be built to hold the water back. Mr. Hildebrandt stated the subject tract is only 1.3% of the drainage basin area and, with proper storm water detention measures, storm water runoff problems in the area are not expected to be exacerbated as a result of the new construction. Council Member McNabb recognized Mr. Hatcher, and Mr. Hatcher showed graphic representations of the proposed detention pond, streetscape and other features to those present. Council Member Pritchett commented favorably about the type of storm water detention pond Mr. Hatcher is proposing, and stated the examples she has seen do not detract from the appearance of the houses they are located near. Council Member McNabb asked Mr. Hatcher if the detention pond he will build at the subject location will feature a brick wall and sodded turf floor, and Mr. Hatcher answered in the affirmative. Mr. Hatcher stated the detention pond as proposed will also provide a buffer between the residences and the nearby commercial property. Mayor Bacon recognized Ms. Michelle Hailey, residing at 3313 Dunn Street, and Ms. Hailey described water and sewer related problems she has experienced at her residence. Ms. Hailey expressed concerns about the demands which may be placed on the infrastructure in the City and the environment by the construction of additional housing. Mayor Bacon recognized Mr. Joseph Marcoux, residing at 3324 Dunn Street, and Mr. Marcoux expressed concerns about additional rezonings which may occur in the future. - August 2. 2004 4 Mayor Bacon recognized Ms. Mary Donnelly, residing on Pretty Branch Drive, and Ms. Donnelly provided details to those present regarding storm water runoff problems she has observed in the area of her residence. Ms. Donnelly expressed the view that adequate storm water detention measures will be needed for the proposed development. - Mayor Bacon recognized Mr. Howard Martin, residing at 3435 Lee Street, and Mr. Martin showed photographs to those present depicting storm water runoff activity in the vicinity of the proposed development Mr. Martin provided explanations to those present regarding the details shown in the photographs he presented. Mr. Martin expressed concern about the potential impact on traffic from construction vehicles parked in the subject area. Mr. Martin expressed concern about the possibility of pockets of redevelopment at higher densities prol iferating throughout the community. Mr. Martin asked Mr. Hatcher to explain where construction vehicles will be staged during construction of the proposed houses. Mr. Hatcher stated that construction equipment in an area can actually cause through traffic to slow down to safer speeds. Mr. Hatcher stated that contractors building houses must conform to a variety of regulations. Mr. Hatcher stated that numerous soil erosion control measures are in place at a construction site, and the number of access points is therefore limited. Mr. Hatcher stated that any inconvenience caused by traffic associated with the proposed construction will be relatively short in duration. Mr. Martin expressed concern that the construction traffic will create a traffic hazard in the affected area. Mr. Hatcher stated the proposed grading plan for the subject property should actually improve sight distance in the area. Mayor Bacon recognized Mr. Kevin Martin, residing at 823 Riverton Park Place. and Mr. Martin expressed the view that the detention pond proposed for the subject property will create a health hazard and a traffic hazard. Mr. Martin expressed concern that children could stray into the detention pond and drown. Council Member McNabb stated there will be no standing water in the detention pond. Mr. Martin expressed concerns that moisture in the detention pond will cause disease-carrying mosquitoes to multiply in the subject area. Mr. Martin stated that construction in the subject area could weaken the ground and the sewer systems there. Mr. Martin expressed concern about potential storm water runoff problems in the affected area. - Mayor Bacon recognized Ms. Irma Weaver, residing at 3400 Lee Street, and Ms. Weaver provided details to those present regarding difficulties encountered over the years in keeping Pretty Branch Creek clean. Ms. Weaver stated that when houses were built on Dunn Street. water problems began to occur on Lee Street. Mayor Bacon asked Ms. Weaver when the houses she referred to on Dunn Street were built, and Ms. Weaver stated they were built some time after she moved to that area in 1954. Ms. Weaver expressed concerns about the potential impact on the subject area from additional construction. Mayor Bacon recognized Ms. Sara Bradley, residing at 1089 Pinehurst Drive, and Ms. Bradley expressed concern about the number of driveways proposed for King Springs Drive. Ms. Bradley asked whether or not a new lane will be constructed for vehicles entering the roadway from the new driveways. Council Member McNabb stated the vehicles will enter directly onto King Springs Road. Ms. Bradley expressed concern about potential traffic problems in the subject area. Mayor Bacon recognized Mrs. Jean Martin, residing at 3435 Lee Street, and Mrs. Martin expressed concerns about sewage capacity in the subject area. Mr. Hildebrandt provided details to those present regard ing the routing of sewage from the subject area. Mayor Bacon asked Mr. Hildebrandt if it is correct that the proposed construction will not affect sewer service for the areas of Lee Street and Pretty Branch Drive, and Mr. Hildebrandt answered in the affirmative. - August 2. 2004 5 - Mayor Bacon recognized Mr. AI Graves, and Mr. Graves expressed concerns about vehicular traffic in the area. At Mayor Bacon's request, Mr. Hildebrandt provided details to those present regarding previous traffic surveys in the vicinity of Concord Road and McCauley Road concerning the possible need for intersection control. Mayor Bacon stated funds are being sought for additional improvements on Concord Road. Mr. Hatcher stated the storm water control structure proposed for the subject property is a detention pond, which is designed to only slow down water runoff and thus does not create a place for mosquitoes to proliferate. Mr. Hatcher stated the sidewalks in the subject area will be reconfigured with a grass buffer between the curb and the sidewalk. Mr. Hatcher stated this improvement will enhance both the streetscape in the subject area as well as pedestrian safety. Mr. Hatcher stated the detention pond is designed in such a way as to not create any safety hazards. Mr. Hatcher stated the developer is prepared to surrender right-of-way (ROW) to the City if necessary in order to install traffic control measures along King Springs Road. - Council Member McNabb asked Mr. Hatcher ifhe is agreeable to a special stipulation calling for an increase in side interior space from 10' to 15,' and Mr. Hatcher answered in the affirmative. Council Member McNabb asked Mr. Hatcher ifhe is agreeable to a change in stipulation #3 to require a 20% reduction in runoff rate in a 100 year storm event, with an additional requirement for the floor of the detention pond to be sodded with turf and have a head wall constructed of brick, and Mr. Hatcher answered in the affirmative. Council Member Newcomb stated the City is not approving any change to medium density in terms of future land use. Council Member Newcomb stated an additional stipulation may be needed to emphasize the fact that the future land use of the subject area is not being changed by this vote. Mr. Hatcher stated the subject property is approximately 1,100 s.f. short of the amount of land needed for a low density land use designation. Mr. Hatcher stated that acquisition of a small parcel of additional land to make up the shortfall had been considered, but did not prove to be feasible. Council Member Newcomb reiterated that the City's position in this matter is that there is to be no change to medium density land use in the subject area. MOTION: Council Member McNabb made a motion to approve Rezoning Request Z04-016 from R-15 to RAD Conditional on King Springs Road for Belmont Development, LLC subject to thirteen stipulations as follows: I. The composition of the homes in a residential subdivision shall include a mixture of elements including; but not limited to: brick, stone, shake, hardy plank and stucco. No elevation shall be comprised of 100% hardy plank siding. 2. There shall be protective covenants with a mandatory homeowners association on all lots. These protective covenants shall be supplied to the City prior to the issuance of a building permit. 3. The retention pond shall be placed and screened appropriately to be unobtrusive to homes inside and outside the development. The storm water detention plan shall be designed to create at least a 20% reduction in a 100-year storm event. The City Engineer shall approve all plans. Developer agrees to an additional requirement for the floor of the detention pond to be sodded with turf and have a head wall constructed of brick 4. All utilities within the development shall be underground. - AUQ,ust 2. 2004 6 5. The developer shall be responsible for any traffic improvements (including additional right-of-way dedications) deemed necessary by either the City or the County during construction plan review. - 6. No debris may be buried on any lot or common area. 7. The developer will comply with the City's current tree ordinance. All required tree protection measures shall be adhered to by the developer during construction. 8. All landscape plans must be prepared, stamped, and signed by a Georgia Registered Landscape Architect for any common areas or entrances. 9. All yards and common areas are to be sodded, and landscaped. Irrigate as appropriate. 10. All single-family and/or duplex residential lots shall provide the following at the time of certificate of occupancy: either four r caliper trees or two 2" caliper and two 4" caliper trees. The following species of trees may be used: Nuttall Oak, Swamp Chestnut Oak, Allee Elm, and Village Green Zelkova. Other species may be used if approved by the City. Special Conditions II. The development shall maintain the following setbacks: Front 25' Rear 35' Side Interior 15' between buildings Side Exterior 10' - 12. Future Land Use will not be changed from Low Density Residential for this area of King Springs Road. 13. City Staff will publish reports on improving water pressure and correcting sewer capacity problems in the affected area before construction permits are issued. The motion was seconded by Council Member Pritchett. Council Member Smith asked Mr. Hatcher if he is agreeable to a requirement for the detention pond on the subject property to be constructed with a sediment pit, and Mr. Hatcher answered in the affirmative. Motion was approved 7 - O. (B) Approval of Annexation Request (100% of property owners requesting annexation)- 2.742 Acre Tract - Land Lot 330, Parcell - 593 Cooper Lake Road - Michael Landers Mr. Wright stated the subject property is contiguous to the City, and that staff has reviewed the legal description of the property with satisfactory results. MOTION: Council Member Wood made a motion to approve the application for annexation of a 2.742 acre tract in Land Lot 330, Parcell, 17th District, 2nd Section, Cobb County, Georgia, also known as 593 Cooper Lake Road, for Michael Landers to become a part of Ward 7 with an effective date of September I, 2004. The motion was seconded by Council Member Smith. Motion was approved 7 - O. - August 2. 2004 7 (C) Public Hearing - Variance Request V04-024 - Additional Wall Sign - 300 Village Green Circle - Coldwell Banker - Mr. Wright stated the applicant is seeking a variance to approve a second wall sign where only one is permitted by the City ordinance. Mr. Wright stated staff does not recommend approval of this variance request. Mayor Bacon stated this is a public hearing and asked for public comment, and the oath was administered to several persons by Mr. Cochran. Council Member Scoggins recognized Mr. Joe Kowalski (phonetic) from Lithonia Signs, Inc. Mr. Kowalski stated the applicant, Coldwell Banker (CB), currently has no visibility from Atlanta Road. Mr. Kowalski introduced Ms. Charlotte Sears from CB to those present, and Ms. Sears Stated CB merged two offices into one office located in the Market Village area. Ms. Sears stated the CB office in Smyrna presently has no sign visibility. Ms. Sears stated that CB's clients have difficulty locating their office because there is no CB sign visible from the road. Ms. Sears stated CB has a Village Green Circle address, but has no actual access to that street. Ms. Sears stated the requested sign would enable CB customers to see their sign from Atlanta Road. Ms. Sears stated that adequate signs are vital to CB's business. Council Member Scoggins stated a possible alternative solution is for the applicant to consult with the City's staff to try to find another place on the office building for the existing sign which might provide greater visibility. - MOTION: Council Member Scoggins made a motion to table Variance Request V04-024 for an additional wall sign at 300 Village Green Circle for Coldwell Banker until the August 16. 2004 meeting to allow time for the applicant to discuss alternate placement of the existing sign with appropriate City staff members. The motion was seconded by Council Member Newcomb. Motion was approved 7 - O. (D) Public Hearing - Zoning Amendment Z04-020 - Spring Road and Jonquil Drive - Legacy Communities Mayor Bacon recognized Mr. Garvis Sams, an attorney representing the applicant. Mr. Wright stated the subject property was rezoned during December, 2003 to TD Conditional. Mr. Wright stated the developer is requesting approval of two minor modifications to the subdivision plan. Mr. Wright stated the modifications include a request for left turns to be allowed onto Spring Road. Mr. Wright stated the other request is for a change in the number of parking spaces at the recreation area to six spaces instead of the twenty-two shown on the original plan. Mayor Bacon stated this is a public hearing and asked for public comment. There was none. Council Member Scoggins asked Mr. Sams to provide details of the proposed plan changes to those present. Mr. Sams stated he has consulted with Mr. Hildebrandt about the proposed change which would allow left turns onto Spring Road, and that Mr. Hildebrandt agrees that such a change would be practicable. Mr. Sams stated the City regulations require one parking space for every townhouse unit, but that this number of spaces is not needed because of the other amenities being included with the development. Mr. Sams stated that the City staff supports both requests. - August 2. 2004 8 MOTION: Council Member Scoggins made a motion to approve Zoning Amendment Z04-020 at Spring Road and Jonquil Drive for Legacy Communities. The motion was seconded by Council Member Wood. Motion was approved 7 - O. - PRIVILEGE LICENSE: There were none. FORMAL BUSINESS: (A) Appointment of Member to the Civil Service Board Mr. Wright stated the term of Mr. Charles Perkins on the Civil Service Board expires August 15, 2004. Mr. Wright stated a reappointment will be needed to extend Mr. Perkins' term through August 16, 2006. MOTION: Council Member Smith made a motion to reappoint Mr. Charles Perkins to another term on the Civil Service Board beginning August 16,2004 through August 16,2006. The motion was seconded by Council Member Wood. Motion was approved 7 - O. (B) Approval of Amendment to the Alcoholic Beverage Ordinance Mr. Wright stated the Mayor and Council requested a revised alcoholic beverage ordinance last March. Mr. Wright stated the Police Committee has held a number of meetings with alcoholic beverage licensees to solicit input from the business community into the revision process. Mr. Wright stated significant proposed changes include controls on keg rentals, additional grounds for denial of licenses, a mandate for training for licensees and servers, and revisions to the grounds for revocation or suspension of licenses for violations of the ordinance. Mr. Wright stated that staff recommends approval of the revised ordinance. - Council Member Lnenicka expressed appreciation to Mr. Cochran and to the numerous business owners who helped to formulate the proposed ordinance amendments. Council Member Lnenicka provided details of some of the proposed ordinance changes to those present. Council Member Lnenicka stated efforts have been made to make servers more accountable for illegal sales of alcoholic beverages. Council Member Lnenicka stated the revision includes a list of mitigating factors that can be considered at a show cause hearing for possible suspension or revocation of a license. MOTION: Council Member Lnenicka made a motion to approve adoption of the revised Chapter 6 - Alcoholic Beverage Ordinance for the City of Smyrna. The motion was seconded by Council Member Smith. Motion was approved 7 - O. COMMERCIAL BUILDING PERMITS: There were none. CONSENT AGENDA: (A) Approval of July 19,2004 Minutes (B) Revision of City of Smyrna Personnel Policies and Procedures - August 2. 2004 9 - As a means to comply with the ever changing laws and to maintain good human resources functions, the Human Resources Department along with the assistance from Elarbee, Thompson, Sapp & Wilson (GIRMA Attorneys) recommend the revision of the following City of Smyrna Personnel Policies and Procedures: (14) Overtime and Compensatory Time, (15) When Employees are Required To Be On Call/Inclement Weather, (16) Annual Leave, and (17) City Holidays. A number of the city's current personnel polices were made effective approximately August I, 1993, since that time laws have changed and standard personnel procedures have become much more complex. The revision of these polices (and forthcoming policies) will allow the City of Smyrna's Personnel Polices and Procedures Manual to be lawful and representative of policies and procedures maintained by Georgia cities with good human resources functions. There were no recommended changes to the aforementioned policies. The effective date was changed to indicate that the policies have been reviewed. Approval of these policy revisions is recommended. (C) Approval to Solicit a Proposal for a Drainage Basin Study from Welker & Associates (D) Approval of Dates for 2005 City of Smyrna Events Organized by the Community Relations Department - The following dates should be reserved by the Community Center and noted by all impacted City departments - Jonquil City Jog - Saturday, April 23, Concert I - Saturday, May 14,2005, Concert 2 - Saturday, June 11, 2005, Concert 3 - Saturday, July 9, 2005, Birthday Celebration - Saturday, August 6, 2005, Spice of Life - Saturday, September 17, 2005. Additionally, the 2005 Jonquil Festival dates are as follows: Spring - April 23 & 24, Fall- October 22 & 23. Event dates hold a traditional selection pattern which has been followed for 2005 with one exception. To allow for an extra week of production time and cooler weather, the Spice of Life Food and Culture Celebration is listed as September 17,2005. Approval of event dates as proposed is recommended. (E) Approval of Street Closings for the annual City of Smyrna Birthday Celebration on Saturday, August 7, 2004 Village Green Circle and connecting streets (Village Green approach from Atlanta Road, King from Bank to the circle, and the circle exit between the Community Center and the Library) will close as early as 7:30 a.m. on Saturday, August 7, 2004 for setup of the event and will remain closed until after event breakdown after the event. Powder Springs will need to be closed upon arrival of the Fireworks team and will remain closed for the duration of the event and required cleanup. This is an annual event with requested street closings the same as 2003. Approval of street closings as requested is recommended. (F) Approval for Permission for MUST Ministries Cumberland Community Church to hold a benefit 5K run as part of their 2004 fall festival The requested date is September 18, 2004 and the event is proposed to be titled "Cumberland Community Church MUST Run 5k." The race course has been reviewed by the Police Department and recommendations for intersection(s) control have been made and are being communicated to the race organizer. ..- 10 August 2, 2004 (G) Approval of Use of Council Chambers by the Village on the Green HOA on Thursday, August 12,2004 from 7:00 p.m. until 9:00 p.m. (H) Approval of authorization for Mayor to Sign a Settlement agreement between the City of Smyrna and Tinsley Media, LLC - The agreement allows Tinsley Media to erect one two-sided advertising sign measuring 14 feet by 48 feet at 2000 Maner Road in return for dropping all of its sign permit applications and its lawsuit against the City. Last year, Tinsley submitted 13 sign applications to the City for outdoor advertising signs. None of the applications conformed to the sign regulations of the City, as they existed on the date of submission, and were denied. Tinsley filed a lawsuit challenging the constitutionality of the City's sign ordinance. Approval of authorization for Mayor Bacon to execute the settlement agreement between the City of Smyrna and Tinsley Media, LLC is recommended. (I) Approval of Purchase of a 2005 F -250 Supercab Truck from the State Contract This truck is a replacement for the Parks Facilities Division. The 2005 pricing will likely be $20,800 with options. Permission to purchase will give the Purchasing Agent the authority to order the vehicle that will likely not be delivered until October. Approval of purchase is recommended. (J) Approval of Purchase of a 2005 Crown Victoria Police Interceptor from the State Contract This car is a scheduled replacement for the Park Rangers. The $26,500 budgeted will include an after market installation of a first-time camera. Approval of purchase is recommended. - (K) Approval of Purchase of Property Described in Exhibit A attached hereto and Authorization of Mayor to Execute all Documents incident thereto This is a parcel ofland approximately 35' wide by 208' long adjacent to property at the rear of Burger Field off Glendale Circle that will link the field to the Campbell High School practice field with the intention of constructing a jogging path. MOTION: Council Member Wood made a motion to approve the consent agenda. The motion was seconded by Council Member Smith. Council Member Newcomb expressed the view that the City needs a set of defined criteria for approval of use of the Council Chambers. Motion was approved 6 - I, with Council Member Lnenicka in opposition. COMMITTEE REPORTS: Council Member Pritchett stated her recent trip to Paris was a personal trip and that no City funds were used to pay for it. Council Member Newcomb yielded the floor with no report. Council Member Scoggins yielded the floor with no report. - August 2, 2004 II Council Member McNabb stated the drainage basin study approved at this meeting is a step in the right direction to help the City manage storm water runoff more effectively. - Council Member Smith stated that on South Cobb Drive near Church Street and Powder Springs Street crossing signals have been installed with a feature which indicates how much time remains before the signal changes. Council Member Lnenicka stated he has published a newsletter on the website. Council Member Lnenicka stated the zoning matter on King Springs Road discussed at this meeting really only concerned one additional house. Council Member Lnenicka stated he understands the comments and concerns voiced by the citizens who attended the hearing on this rezoning. Council Member Lnenicka stated that Mr. Hatcher has a record of doing those things which he pledges to do. Council Member Wood yielded the floor with no report. Mayor Bacon reminded those present that the City's Birthday Celebration will be held Saturday night. CITIZENS INPUT: There was none. SHOW CAUSE HEARING: Show Cause Hearing - Alcoholic Beverage Ordinance Violation - EI Tropicana Bar & Grill - 2540 Atlanta Road #B - Gilberto S. Blanco, Agent - Mayor Bacon recognized Ms. Anita Serrato, an attorney representing EI Tropicana Bar & Grill (ETB). The oath was administered to several persons by Mr. Cochran. Ofc. Norton stated that on Friday, May 21,2004 at approximately 2:52 a.m. he responded to a call at ETB concerning threats. Ofc. Norton stated that while checking the premises, he observed two females dancing for money. Ofc. Norton stated he made contact with Elizabeth Worley from Highlands Station in Marietta, Georgia and Elizabeth Whorton from Woodlands Drive in Smyrna, Georgia. Ofc. Norton stated that both females stated they come to ETB twice a week to dance for money. Ofc. Norton stated that both females were wearing their underwear and bras. Ofc. Norton stated the females were performing lap dances for money and that both were under twenty-one years of age. Ofc. Norton stated that both females said they worked for a company run by a woman named Amanda that has a contract to provide dancers to ETB. Ofc. Norton stated that neither of the females could provide any further information regarding the business or Amanda. Ofc. Norton stated he made contact with the owner, Gilberto Blanco, and the manager, Juan Sandoval, and advised both of them that the permits officer will make contact with them in reference to this incident. - Ms. Serrato asked Ofc. Norton if the two women were nude, and Ofc. Norton stated the two women were wearing thong-type underpants and bras. Mr. Cochran asked Ofc. Norton if he is familiar with the court action regarding this incident, and Ofc. Norton said no. Ms. Serrato stated Mr. Sandoval, the manager who was cited, pled guilty and paid a fine. Ms. Serrato stated no one is denying that the incident took place. Ms. Serrato stated Mr. Blanco made a mistake in the way he operates his business that evening. Ms. Serrato stated that Mr. Blanco did not have a signed contract for dancing services. Ms. Serrato stated the two women asked Mr. Blanco if they could August 2. 2004 12 dance at ETB for tips, and that Mr. Blanco unfortunately agreed. Ms. Serrato stated the police officer did respond to a call concerning a battery incident in which an individual was struck with a bottle. Ms. Serrato stated that Mr. Blanco claims to have been unaware of the provisions of Section 6-60 of the City code Exotic dancing in connection with pouring license. Ms. Serrato stated the management has engaged the services of off-duty police officers on weekends to help secure the premises. Mayor Bacon expressed concerns about an establishment that needs a security presence. Mayor Bacon recognized Mr. Blanco, and Mr. Blanco stated this is the first restaurant he has owned. Mr. Blanco stated he did not receive the City ordinance at the time he applied for his license. Council Member McNabb asked Mr. Blanco ifhe would be comfortable taking his own children to a place where women dance in their underwear, and Mr. Blanco said no. Council Member McNabb asked Mr. Blanco to apply the same standards he has for his own family to his business. Council Member Lnenicka asked Ms. Serrato if Mr. Blanco intends to retain her services on a regular basis for guidance and legal advice, and Ms. Serrato stated she has suggested to Mr. Blanco that he obtain legal advice when he has questions about what is permissible. Council Member Lnenicka asked Ms. Serrato what she has told Mr. Blanco in regard to his responsibilities for training his staff how to sell alcoholic beverages in a lawful manner. Ms. Serrato provided details to those present regarding the precautionary measures she recommends for her clients, including professional training and point-of-sale systems for identifying underage persons. Council Member Lnenicka stated Mr. Blanco was probably fortunate he was not cited for a violation of Section 6-70, because the two women were minors at the time of the incident. Council Member Lnenicka asked Mr. Blanco why minors were allowed on his premises in the small hours ofthe morning. Mr. Blanco stated food is still available at ETB during that time. Council Member Lnenicka asked Mr. Blanco if the two women were dancing in the restaurant area, and Mr. Blanco answered in the affirmative. Council Member Lnenicka asked Mr. Blanco if it is correct that, at the time he applied for his license, he told the council members he understands the City's alcoholic beverage ordinance, and Mr. Blanco answered in the affirmative. Mr. Blanco stated he did not have the City ordinance, and Council Member Lnenicka stated the minutes from the meeting during which Mr. Blanco received his privilege license indicate he did receive a copy of the alcoholic beverage ordinance. Ms. Serrato stated she asked Mr. Blanco ifhe had received a copy of the alcoholic beverage ordinance, and that Mr. Blanco stated he does not recall whether or not he received it. - - MOTION: Council Member Lnenicka made a motion to go into executive session. The motion was seconded by Council Member Wood. The motion was approved 7 - O. (Clerk's Note: executive session commenced at 11 :02 p.m.) MOTION: Council Member Lnenicka made a motion to adjourn from executive session. The motion was seconded by Council Member Newcomb. The motion was approved 7 - O. (Clerk's Note: executive session ended at 11 :25 p.m.) Mr. Cochran stated that, although this is a first violation for ETB, the offense is serious in nature. Mr. Cochran stated a penalty will be imposed to include a ten day suspension beginning tonight, a requirement for the licensee and the manager to complete the Evindi course for responsible alcohol sales and service on or before October 6 of this year, and a two year Class I probation. Mr. Cochran asked if the terms specified are acceptable, and Ms. Serrato answered in the affirmative. MOTION: Council Member Scoggins made a motion to suspend the license for EI Tropicana Bar & Grill at 2540 Atlanta Roa'ii #B, Gilberto Blanco, agent, for a period often days beginning at 12:0 I a.m. on August 3,2004 through 11 :59 p.m. on August 12,2004, and to impose a two year Class I probation and a requirement for the owner/licensee and the manager to complete a - August 2. 2004 13 - responsible alcohol sales and service class presented by Evindi, Inc. on or before October 6, 2004. The motion was seconded by Council Member McNabb. Council Member Newcomb stated he supports the motion. Council Member Newcomb expressed concern about the fact that the establishment seems to require the presence of off-duty police officers, and stated the Police Committee may need to further review the alcoholic beverage ordinance to ascertain if revised guidelines for determining who should be eligible to have a license of this type are in order. Motion was approved 7 - O. ADJOURNMENT: With no further business, the meeting was adjourned at II :25 p.m. ~QL~~ A. MAX BACON, MAYOR - -<---- -'jL .;# J-L.- RON NEWCOMB, WARD 2 ~~J(~ BILL COGGINS ARD 3 ~tt:~_& ~ CHARLES PETE WOOD, WARD 7 - ORDINANCE ANNEXING PROPERTY INTO THE CITY OF SMYRNA - Ordinance Number Land Lot 330 Acres 2.742 2004-26 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 August 2,2004 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 ofthe 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 0 RD A IN ED by the City Counc i I of the City of Smyrna, th is 20d August, 2004 ~ day of A. Max Bacon, Mayor ~,i2.k:~-- City of Smyrna - 1~ A --- Scott A. Cochra~ity Attorney City of Smyrna ~ Ordinance #2004-26 EXHIBIT "A" - ALL THAT TRACT OR PARCEL OF LAND LYING AND BEING IN LAND LOT 330 OF THE 17TH DISTRICT, 2ND SECTION OF COBB COUNTY, GEORGIA, AND BEING MORE P ARTICULARL Y DESCRIBED AS FOLLOWS: - BEGINNING AT AN IRON PIN WHERE THE EAST LAND LOT LINE OF LAND LOT 330 IS INTERSECTED BY THE NORTHEASTERLY RIGHT-OF- WAY OF NICKAJACK ROAD (A 50-FOOT RIGHT-OF-WAY); THENCE NORTH 73 DEGREES 06 MINUTES 38 SECONDS WEST A DISTANCE OF 175.12 FEET ALONG THE NORTHEASTERLY RIGHT -OF- WAY OF NICKAJACK ROAD TO AN IRON PIN; THENCE NORTH 67 DEGREES 23 MINUTES 28 SECONDS WEST A DISTANCE OF 81.58 FEET CONTINUING ALONG THE NORTHEASTERLY RIGHT-OF-WAY OF NICKAJACK ROAD TO AN IRON PIN; THENCE NORTH 11 DEGREES 15 MINUTES 27 SECONDS EAST A DISTANCE OF 586.14 FEET TO AN IRON PIN; THENCE SOUTH 78 DEGREES 44 MINUTES 33 SECONDS EAST A DISTANCE OF 142.64 FEET TO AN IRON PIN ON THE EAST LAND LOT LINE OF LAND LOT 330; THENCE SOUTH 01 DEGREES 02 MINUTES 33 SECONDS WEST A DISTANCE OF 629.35 FEET ALONG THE EAST LAND LOT LINE OF LAND LOT 330, RETURNING TO THE TRUE POINT OF BEGINNING, AND BEING A PARCEL OF 2.742 ACRES, INCLUDING A ONE-STORY FRAME DWELLING, AS BEING SHOWN UPON TEAT PLAT OF SURVEY FOR ALFRED T. LANSDELL, DATED FEBRUARY 17, 1986, PREPARED BY PAUL E. LEE, GA. REGISTERED LAND SURVEYOR NO. 1715. THIS CONVEYANCE IS CONDITIONED UPON AND SUBJECT TO GEORGIA POWER COMPANY EASEMENT ACROSS THE NORTH PART OF CAPTIONED, AS SHOWN BY THE ABOVE-MENTIONED PLAT OF SURVEY. - AFFIDA VIT - Personally appeared before the undersigned attesting officer, duly authorized to administer oaths, Mavor A. Max Bacon, who after being duly sworn, deposes and on oath states the following: (I) I was the presiding officer of a meeting of the Mayor and Council held on the 2nd day of August, 2004. (2) That it is my understanding that O.c.G.A. 950-14-4(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 2nd of August, 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 a.c.G.A. S50-14-4(b) that such an affidavit be executed. - _.d!i Mayor/Presiding Officer This 2nd day of August, 2004. Sworn to and subscribed before me This 2nd day of August, 2004. .... ORDINANCE # 2004-27 ... AN ORDINANCE OF THE CITY OF SMYRNA, GEORGIA, PROVIDING THAT THE CODE OF ORDINANCES, CHAPTER 6, ALCOHOLIC BEVERAGES, BE AMENDED BY REPEALING THE EXISTING ALCOHOLIC BEVERAGE ORDINANCE IN ITS ENTIRETY AND REPLACING SAID CODE SECTION WITH A REVAMPED BODY OF REGULATIONS Chapter 6 ALCOHOLIC BEVERAGES* * Editors Note: Ordinance No. 95-03, adopted May 1, 1995, amended this chapter in its entirety. Formerly, this chapter consisted of ~~ 6-1--6-4, 6-31--6-41, 6-51--6-77, 6-101--6-104, 6-126--6-130, 6- 151--6-177, and 6-201--6-204, which pertained to alcoholic beverages and derived from ~~ 3-1-1--3-1-4, 3- 2-1--3-2-28, 3-3-1--3-3-44, 3-4-1--3-4-4, and 3-5-1--3-5-5 of Ord. No. 93-06, adopted June 7, 1993. Section numbers have been changed and designated by the editor in order to conform to existing numeric style of this Code. Cross References: Businesses, ch. 22; public intoxication, ~ 66-6; alcoholic beverages in parks, ~ 70-2; traffic and vehicles, ch. 98. State Law References: Alcoholic beverages, O.C.G.A. tit. 3; penalty for violations of alcoholic beverage law, O.c.G.A. ~ 3-1-4; purchase of alcoholic beverages by persons under 21 years of age, O.C.G.A. ~~ 3-3-23, 3-3-23.1; jurisdiction of juvenile court, O.c.G.A. ~ 15-11-5; powers of presiding officer in municipal court to bind over or commit criminal offenders to jail, O.c.G.A. ~ 17-7-22; punishment for misdemeanors generally, O.C.G.A. ~ 17-10-3; powers of judges of municipal courts, O.C.G.A. ~ 36-32-3; jurisdiction in cases of purchase of alcoholic beverages by persons under 21 years of age, O.C.G.A. ~ 36-32-10. - Article I. In General Sec. 6-1. Short title. Sec. 6-2. Definitions. Sec. 6-3. Purposes. Sec. 6-4. Power to regulate licenses. Sees. 6-5--6-30. Reserved. Article II. License - Sec. 6-31. Approval of governing body. Sec. 6-32. Grant or privilege. Sec. 6-33. Required. Sec. 6-34. Types of licenses. Sec. 6-35. Holding more than one allowed. Sec. 6-36. Use restricted to license type. Sec. 6-37. Limitations on use. Sec. 6-38. Delivery by retailer beyond licensed premises. Sec. 6-39. Licensed premises; inspection; product of unlicensed wholesaler. Sec. 6-40. Requirements for wholesalers generally. Sec. 6-41. Wholesale licensees prohibited from interest in other licenses. Sec. 6-42. Discrimination by wholesalers. Sec. 6-43. Purchase from properly licensed wholesalers. Sec. 6-44. Invoices. Sec. 6-45. Consumption on package licensed premises prohibited. Sec. 6-46. Carry-in prohibited. Sec. 6-47. Service in hidden rooms of pouring licensee. Sec. 6-48. Familiarity with chapter. Sec. 6-49. Responsibility of licensee for acts of employees and others. Division 1. Generally ORDINANCE # 2004-27 Sec. 6-50. License to be displayed. Sec. 6-51. Issuance of photo permit for employees. Sec. 6-52. Age limit for employees. Sec. 6-53. Limitations on employee conduct. Sec. 6-54. Pricing. Sec. 6-55. Prices to be conspicuously displayed. Sec. 6-56. Exterior advertisements. Sec. 6-57. Misrepresentation of alcoholic beverages. Sec. 6-58. Coin operated, similar machines prohibited. Sec. 6-59. Serving of drinks by employees only. Sec. 6-60. Exotic dancing in connection with pouring license. Sec. 6-61. Hours of operation. Sec. 6-62. Sunday sales permit. Sec. 6-63. Special late hours permit. Sec. 6-64. Time limit on vacating premises after close. Sec. 6-65. Clear view of entrance and interior of licensed premises. Sec. 6-66. Drive-in service window. Sec. 6-67. Private residential group club defined. Sec. 6-68. Compliance with sanitary and fire protection regulations; inspections. Sec. 6-69. Sale to certain persons prohibited. Sec. 6-70. Minors on premises prohibited. Sec. 6-71. Alcoholic use by persons under age prohibited. Sec. 6-72. Prohibited activities. Sec. 6-73 Retail sale of kegs; required labeling; removal of labels Sees. 6-74 - 6-100 Reserved. - Division 2. Application Sec. 6-101. Generally. Sec. 6-102. Written format. Sec. 6-103. Contents. Sec. 6-104. Fees. Sec. 6-105. Producing persons for oral interrogation. Sec. 6-106. Time limit for furnishing information. Sec. 6-107. Authorized officers. Sec. 6-108. False information. Sec. 6-109. Investigation by police department. Sec. 6-110. Investigation by city building inspector. Sec. 6-111. Investigation by finance officer. Sec. 6-112. Time limit for city to process. Sec. 6-113. Public notices of intent and of hearing. Sec. 6-114. Public hearing on application. Sec. 6-115. Appearance of applicant. Sec. 6-116. Denial of License Sec. 6-117. Reports from investigations. Sec. 6-118. Distance from certain locations. Sec. 6-119. Citizenship and residency. Sec. 6-120. Corporate registration. Sec. 6-121. Applicant as guise. Sec. 6-122. Age. Sec. 6-123. Wholesale license. Sec. 6-124. Pouring requirements. Sec. 6-125. City officials and employees and family prohibited. Sec. 6-126. Time limits for obtaining and using. Sec. 6-127. Time limit on reapplication. Sec. 6-128. Restriction upon transfers. Sec. 6-129 Mandatory Workshop for licensee; mandatory training for permit holders. Sees. 6-130--6-140. Reserved. - Article 111. Fees and Taxes Sec. 6-141. Setting license fees; license period; refunds. - 2 ORDINANCE # 2004-27 - Sec. 6-142. Payment oflicense fees; amounts. Sec. 6-143. Excise tax upon retail sales of distilled spirits, package only. Sec. 6-144. Excise tax upon the sale of distilled spirits by the drink. Sees. 6-145--6-160. Reserved. Article IV. Enforcement Sec. 6-161. Compliance with chapter. Sec. 6-162. Criminal penalties for violation of chapter; administrative actions. Sec. 6-163. Suspension and revocation of license. Sec. 6-164. Automatic revocation of city license upon revocation of state license. Sec. 6-165. Removal ofsigns after revocation. ARTICLE I. IN GENERAL Sec. 6-1. Short title. This chapter shall be known and may be cited as the "Smyrna Alcoholic Beverage Ordinance." (Ord. No. 95-03, ~ 3-1-1, 5-1-95) Sec. 6-2. Definitions. (a) All definitions as may be set forth in the state alcoholic beverage code are adopted by this chapter. ... (b) The following additional words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning: Alcoholic beverage means all alcohol, distilled spirits, beer, malt beverage, wine, or fortified wine. Applicant means generally a person requesting to be a licensee responsible for the sale of alcoholic beverages on the premises applied for. Arrests means all arrests and dispositions thereof for all violations of municipal, state, or federal law, both felonies and misdemeanors, during the five years immediately preceding the date of the application. Church means a permanent freestanding building located in an area designated for such use by the zoning ordinances where persons regularly assemble for religious worship, which shall be publicly designated as a church, but shall not include a residence also used for religious purposes. - Closed function means a private event not open to the general public. Closed functions can only occur at the city community center or at the Church Street Senior Center. No pay-at-the-door or uninvited guests are permitted. Alcoholic beverages must 3 ORDINANCE # 2004-27 be served without charge. The offer and sale of alcoholic beverages at such functions is prohibited, except that a general admission fee permitting attendance at the closed function may be collected in advance. During the time of the closed function, an off-duty city police officer or city park ranger must be hired to oversee the event while alcohol is being served. - Distilled spirits means any alcoholic beverage obtained by distillation or containing more than 21 percent alcohol by volume, including, but not limited to, all fortified wines. Drink means any alcoholic beverage not in its original package which is served for consumption on premises which mayor may not be diluted by any other liquid. Grocery store means a retail establishment whose primary function is the sale of packaged or unprepared food and grocery items for consumption off the premises and whose annual gross sales of alcoholic beverages do not exceed five percent of its total gross sales from all sources as evidenced in a public hearing by a certified audit showing the sales for the calendar year most recently ending at the proposed location or for a similar store at a similar location. For the purposes of this definition, ret?il establishments selling gasoline shall not be considered grocery stores. Hotel means a building or other structure kept, used, maintained, advertised and held out to the public to be a place where food is actually served and consumed and sleeping accommodations are offered for adequate pay to travelers and guests, whether transient, permanent or residential, in which 50 or more rooms are used for the sleeping accommodations of such guests and having one or more public dining rooms, with adequate and sanitary kitchen and a minimum seating capacity of at least 40, where meals are regularly served to such guests, such sleeping accommodations and dining rooms being conducted in the same building or in separate buildings or structures used in connection therewith that are on the same premises and are a part of the hotel operation. Motels meeting the qualifications set out in this definition for hotels shall be classified in the same category as hotels. Hotels shall have the privilege of granting franchises for the operation of a lounge, restaurant or nightclub on their premises, and the holder of such franchise shall be included in the definition of hotel under this definition. - Immediate family means any person related within the first degree of consanguinity or affinity as determined according to civil law. License means the authorization by the governing authority of the city to engage in the sale of alcoholic beverages as provided for in this chapter. Licensee means generally the person to whom a license is granted and who is responsible for the sale of alcoholic beverages as prescribed in this chapter. Lounge means a separate room connected with a part of and adjacent to a restaurant as defined herein with all booths, stools and tables being unobstructed and - 4 ORDINANCE # 2004-27 open to view. All lounges shall have a seating capacity of at least 40. The maximum area of said lounge shall be one-third the size of the food serving area. - Malt beverage means any alcoholic beverage obtained by the fermentation of any infusion or decoction of barley, malt, hops, or any other similar product, or any combination of such products in water, containing not more than six percent alcohol by volume and including ale, porter, brown, stout, lager beer, small beer, and strong beer. The term does not include sake, known as Japanese rice wine. Package means a bottle, can, keg, barrel, or other original consumer container. Park means any public lands owned or controlled and operated by the city, state, or any county of the state, in and upon which facilities are provided for the recreation of the general public. Person means any individual, firm, partnership, cooperative, nonprofit membership corporation, joint venture, association, company, corporation, agency, syndicate, estate, trust, business trust, receiver, fiduciary, or other group or combination acting as a unit, body politic, or political subdivision, whether public, private, or quasi- public. Pouring means the sale of alcoholic beverages by the drink. - Private club means a corporation organized and existing under the laws of the state, having at least 100 members regularly paying monthly, quarterly, semiannual or annual dues, organized and operated exclusively for pleasure, recreation and other nonprofitable purposes, no part of the net earnings of which inures to the benefit of any shareholder or member, and owning, hiring or leasing a building or space therein for the reasonable use of its members with suitable kitchen and dining room space and equipment and maintaining and using a sufficient number of servants, members, volunteers or employees for cooking, preparing and serving meals for its members and guests; provided, however, that no member or officer, agent or employee of the club is paid, or directly or indirectly receives, in the form of salary or other compensation, any profits from the sale of alcoholic beverages to the club or its members at any annual meeting of the club by its governing board out of the general revenue of the club. Premises means the definite closed or partitioned-in locality, whether room, shop, or building wherein alcoholic beverages are sold, and may include an attached patio or deck when: (1) It is separated from the general public by a permanent wall, fence, hedge or similar approved device, and access to the patio or deck is limited only through the main premises; (2) The location of the patio or deck does not encroach upon any sidewalk, right-of-way, or other common area customarily used for ingress, egress, - 5 ORDINANCE # 2004-27 pedestrian or vehicular traffic; and (3) The location and plans shall first have been approved by the city building inspector and fire marshal. - Use of a patio or deck as a part of the premises shall be suspended or revoked when its use interferes with other uses in the vicinity, or becomes in any way a public nuisance. Privately held corporation means an entity registered only through Georgia Secretary of State and not registered with the U.S. Securities and Exchange Commission. Public building means any building owned by a federal, state or local government entity and used exclusively for federal, state and local governmental functions and/or purposes. Publicly traded corporation means an entity which is traded on a major stock trading exchange or registered with the U.S. Securities and Exchange Commission. Purchase price means the consideration received for the sale of alcoholic beverages by the drink valued in money, whether received in cash or otherwise, including all receipts, cash, credits and property, or services of any kind or nature and also, the amount for which credit is allowed by the licensee or his/her agent to the purchases, without any deduction therefrom whatsoever. Restaurant means any public place kept, used, maintained, advertised and held out to the public as a place where meals are served and where meals are actually and regularly served with a minimum seating capacity of 40, such place being provided with adequate and sanitary kitchen and dining room equipment, air conditioned, having employed therein a sufficient number and kind of employees to prepare, cook and serve suitable food for its guests. At least one meal per day shall be served at least six days a week, with the exception of holidays, vacations and periods of redecorating, and the serving of such meals shall be the principal business conducted, with the serving of alcoholic beverages to be consumed on the premises as only incidental thereto. - School means the buildings, grounds, or campus only of such state, county, city, church or other school as teaches the subjects commonly taught in the common schools of this state, not to include private schools where only specialized subjects such as law, stenography, business, music, art, medicine, dentistry, vocational or technical occupations and other special subjects are taught. Smyrna Central Downtown means that area described as the ADD-l District in the Architectural Design Guidelines of the city adopted July 1, 1991, by the mayor and council and may be amended from time to time. Wholesale means the sale of alcoholic beverages as a distributor to retailers for the purpose of resale. (Ord. No. 95-03, S 3-1-2, 5-1-95; Ord. No. 97-16,12-1-97; Ord. No. 2001-0917C, 9-17-01) Cross References: Definitions generally, ~ 1-2. - 6 ORDINANCE # 2004-27 State Law References: Definitions, a.c.G.A. ~ 3-1-2. - Sec. 6.3. Purposes. This chapter is enacted for the purposes, among others, of promoting the health and general welfare of the community, of establishing reasonable and ascertainable standards for the regulation and control of the licensing and sales of alcoholic beverages, and of protecting and preserving certain areas, through reasonable consideration, among others, to the character of the areas and their peculiar suitability for particular uses, to the congestion in the roads and streets, to a general view of promoting desirable living conditions and sustaining stability of neighborhoods and property values, and to the prevention of undesirable persons from engaging in or having any interest in alcoholic beverages. (Ord. No. 95-03, ~ 3-1-3,5-1-95) Sec. 6.4. Power to regulate licenses. All powers as may be provided to municipalities by the laws of the state pertaining to alcoholic beverages are adopted by this chapter. (Ord. No. 95-03, ~ 3-1-4,5-1-95) Sees. 6-5--6-30. Reserved. ARTICLE II. - LICENSE* * State Law References: Sale of alcoholic beverages as a privilege, a.c.G.A. ~ 3-3-1; authority for local licensing, a.c.G.A. ~ 3-3-2. DIVISION 1. GENERALLY Sec. 6-31. Approval of governing body. (a) No alcoholic beverage license shall be issued until it has been approved by the governing body. (b) No alcoholic beverage license shall be approved unless all provisions of this chapter have been met. (Ord. No. 95-03, ~ 3-3-1,5-1-95) Sec. 6-32. Grant or privilege. - (a) All licenses shall be a mere grant or privilege to carry on such business 7 ORDINANCE # 2004-27 during the term of the license, subject to all the terms and conditions imposed by this chapter and related laws, applicable provisions of this Code and other ordinances and resolutions of the city relating to such business. - (b) All licenses hereunder shall have printed on the front these words: "This license is a mere privilege subject to be revoked and annulled by the mayor and council of the City of Smyrna. " (Ord. No. 95-03, 9 3-3-2, 5-1-95) Sec. 6-33. Required. No alcoholic beverages shall be manufactured, sold at wholesale or retail, or possessed for the purpose of sale, except under a license granted by the governing authority of the city. (Ord. No. 95-03, 9 3-3-3, 5-1-95) Sec. 6-34. Types of licenses. The types of alcoholic beverage licenses which may be issued under this chapter are: (1) Pouring distilled spirits; (2) Pouring wine and malt beverage; - (3) Package distilled spirits; (4) Package wine and malt beverage; (5) Wholesale alcoholic beverages; and (6) Manufacturer. (Ord. No. 95-03, 9 3-3-4, 5-1-95) Sec. 6-35. Holding more than one allowed. A licensee may hold more than one type of license, provided that each license must be approved by the governing body. (Ord. No. 95-03, 9 3-3-5, 5-1-95) Sec. 6-36. Use restricted to license type. It shall be unlawful for a licensee to engage in any activity except that authorized by the type of license held. (Ord. No. 95-03, 9 3-3-6, 5-1-95) - 8 ORDINANCE # 2004-27 Sec. 6-37. Limitations on use. - (a) It shall be unlawful for any person operating premises licensed for the sale of wine and malt beverages to store or have on the premises any distilled spirits without a license therefor. (b) No package sales shall be allowed in, or in connection with, any restaurant, cafe, eating place, private club or in any establishment other than a retail store. (c) No package sales shall be allowed in the same room where pouring sales are allowed. (Ord. No. 95-03, ~ 3-3-9,5-1-95) Sec. 6-38. Delivery by retailer beyond licensed premises. - It shall be unlawful for any licensee under this article to make deliveries of any alcoholic beverage by the package beyond the boundaries of the premises covered by the license. Except for restaurants in the Smyrna Central Downtown, it shall be unlawful for any licensee under this article to serve any alcoholic beverages by the drink beyond the boundaries of the premises covered by the license. For restaurants in the Smyrna Central Downtown to serve alcoholic beverages by the drink beyond the boundaries of the premises covered by the license, such service must be first approved by the mayor and city council. (Ord. No. 95-03, ~ 3-3-10,5-1-95; Ord. No. 2003-17, 5-19-03) Sec. 6-39. Licensed premises; inspection; product of unlicensed wholesaler. All licensed retailers shall store all alcoholic beverage possessions on the premises for which the license was issued, and at no other place. All alcoholic beverage stock shall be available at all times for inspection by authorized city officials. Any brand or type of alcoholic beverages found in any retailer's stock that is handled by a wholesaler who is not licensed to make sale and deliveries in the city shall be subject to immediate confiscation. (Ord. No. 95-03, ~ 3-3-11, 5-1-95) Sec. 6-40. Requirements for wholesalers generally. - All wholesalers shall be licensed under the provisions of this chapter and shall comply with this chapter before they can sell or deliver any alcoholic beverages to any establishment in the city. Deliveries and sales shall only be made to retailers properly licensed under such sections for the operation of establishments in the city. Deliveries shall be made in conveyance owned and operated by a wholesaler licensed as set out in this section, and shall at all times when deliveries are being made be subject to inspection 9 ORDINANCE # 2004-27 by any duly authorized authority of the city. (Ord. No. 95-03, S 3-3-12, 5-1-95) - Sec. 6-41. Wholesale licensees prohibited from interest in other licenses. No person who has any direct financial interest in a license for the sale of alcoholic beverages at wholesale shall hold any other license under the terms of this chapter. (Ord. No. 95-03, S 3-3-13, 5-1-95) Sec. 6-42. Discrimination by wholesalers. No wholesaler may discriminate between retail dealers as to quantity, sections, and brands sold to the retail dealer, nor use any business technique so as to control the retail dealer's business and pricing policy or in any way interfere with the free enterprise operation of the retail dealer. (Ord. No. 95-03, S 3-3-14, 5-1-95) Sec. 6-43. Purchase from properly licensed wholesalers. Retail dealers in alcoholic beverages licensed under the applicable provisions of this chapter shall not buy or accept deliveries of alcoholic beverages from wholesalers or other persons offering the same for sale except from wholesalers duly licensed under this chapter. Such retail dealers shall not accept deliveries of alcoholic beverages except directly to the premises for which their license and permit was issued, and by no means other than by a conveyance owned and operated by a wholesaler licensed as required by this chapter, except, on written request to the business license supervisor of the city and upon the granting of permission by the business license supervisor in writing, deliveries may in special instances be made otherwise upon terms and conditions as prescribed by the business license supervisor of the city as to each such delivery. (Ord. No. 95-03, S 3-3-15, 5-1-95) - Sec. 6-44. Invoices. Upon each delivery by a licensed wholesaler to a licensed retailer, an invoice in triplicate shall be prepared, showing the quantities and brands of alcoholic beverages delivered together with the price thereof and the tax collected thereon. The original copy of such invoice shall be delivered by the wholesaler to the retailer simultaneously with each such delivery. The wholesaler shall retain the second copy of such invoice and shall keep it for a period of 24 months after the date of same, and during said period of such invoices shall be made available for inspection by authorized representatives of the city; a copy of such invoice shall be attached to any reports requested or required by the city. (Ord. No. 95-03, S 3-3-16, 5-1-95) Sec. 6-45. Consumption on package licensed premises prohibited. - 10 ORDINANCE # 2004-27 - It shall be unlawful for any person licensed for the operation of a package store only to permit or allow any consumption of alcoholic beverages on the premises of such package store location. It shall be the duty of the owner and/or operator of each establishment to police and prevent the consumption of any alcoholic beverages upon the premises of any package store location, and evidence that there has been any such consumption by any person within the premises of operation of said location shall be deemed prima facie evidence that said owner or operator is allowing consumption of such beverages and the burden shall be upon such owner or operator to establish to the governing authority that same was not with his knowledge or permission. For the purposes of this section, knowledge of the owner and/or operator without taking any steps to prevent such consumption shall be deemed permission. Consumption on the premises shall be allowed only in those locations having a pouring license. (Ord. No. 95-03, ~ 3-3-17,5-1-95) Sec. 6-46. Carry-in prohibited. (a) It shall be unlawful for any person operating any business establishment licensed to serve alcoholic beverages by the drink, or food, to permit the consumption of alcoholic beverages that are not purchased on the premises where they are consumed. (b) It shall be unlawful for any pouring licensee to sell, or offer to sell, or to give, to any customer or patron any alcoholic beverages by the package or drink for carry out purposes. (Ord. No. 95-03, ~ 3-3-18,5-1-95) - Sec. 6-47. Service in hidden rooms of pouring licensee. The sale of alcoholic beverages for consumption by persons in any room which is not open to general public use is prohibited, except that private parties or conventions, which have been scheduled in advance, may be served in public or private dining rooms or meeting rooms, and provided further that this prohibition shall not apply to private clubs hereunder nor to the sale of alcoholic beverages for consumption hereunder to the registered guests of any hotel or motel in their designated rooms. COrd. No. 95-03, ~ 3-3-19,5-1-95) Sec. 6-48. Familiarity with chapter. (a) It shall be the duty of each licensee and employee thereof to be familiar with this chapter. - (b) It shall be the responsibility of each licensee to provide all new employees at the time of their employment, and all employees annually, with an orientation and training on the Smyrna alcoholic beverage ordinance; provided that, the failure of the employer to provide such orientation and training or of the employee to participate shall not be a defense for an employee who does not follow the provisions of the alcoholic beverage ordinance; and provided that, a licensee shall keep a record of such orientation 11 ORDINANCE # 2004-27 and training, which shall be subject to inspection. (Ord. No. 95-03, S 3-3-20, 5-1-95) - Sec. 6-49. Responsibility of licensee for acts of employees and others. Licensees shall be responsible for compliance with this chapter by their officers, agents, and employees. (Ord. No. 95-03, S 3-3-21, 5-1-95) Sec. 6-50. License to be displayed. Each licensee for the sale of alcoholic beverages shall have their license posted conspicuously in the place of business of the person to whom the license is issued, and upon failure to so display, license may at the discretion of the governing body be revoked and the person to whom the license is issued be punished as prescribed in this chapter. (Ord. No. 95-03, S 3-3-22, 5-1-95) Sec. 6-51. Issuance of photo permit for employees. (a) All employees involved in either the dispensing, serving or sale of alcoholic beverages are required to obtain a photo permit from the city police department. (b) Employees subject to this provision shall, within 14 days of their first day of work in an establishment holding a license to sell alcoholic beverages, report to the city police department for the purpose of applying for photo permit on such forms as shall be required by the police department. No person may remain employed by any establishment holding an alcoholic beverage license unless the provisions of these sections have been complied with. - (c) Photo permits are transferable from one licensed premise to another within the corporate city limits. A photo permit shall be valid for a period of two years from the date of issue. At expiration, a new photo permit must be applied for. Photo permits must be made available for inspection upon request by the governing body, police department or city marshal at any time. In case of lost, altered or mutilated photo permits, a replacement must be obtained immediately. If the original photo permit is found after a replacement is issued, then it must be turned in to the permits section at the police department; possession of more than one photo permit is a violation of this section. (d) A processing fee is payable to the city upon application for a photo permit. In the event of a lost or mutilated photo permit, a replacement fee shall be payable to the city. (e) The city shall have a complete and exhaustive search made relative to any police record of the person applying for the photo permit. No photo permit shall be issued to any person if the following is shown to exist: - 12 ORDINANCE # 2004-27 (1) That employee as a previous or current employee, or as a previous alcoholic beverage licensee, has been convicted of violating any laws, ordinances, or regulations regulating such business if such conviction or arrest occurred within a five-year period immediately preceding the date of application. The term "conviction" shall include an adjudication of guilt, a plea of guilty or nolo contendere or the forfeiture of bond when charged with a crime. If there is an arrest and charges are still pending, then action shall be postponed until the charges are adjudicated; - (2) That employee within a five-year period preceding the date of application shall have been convicted for any felony charged under any of the laws of the several states or of the United States.The term "conviction" shall include an adjudication of guilt, a plea of guilty or nolo contendere or the forfeiture of bond when charged with a crime. If there is an arrest and charges are still pending, then action shall be postponed until the charges are adjudicated; (3) That employee has been convicted of more than one misdemeanor, including traffic violations, involving the use or abuse of any alcoholic beverage, opiate or drug, within the three years preceding the application. The term "conviction" shall include an adjudication of guilt, a plea of guilty or nolo contendere or the forfeiture of bond when charged with a crime. If there is an arrest and charges are still pending, then action shall be postponed until the charges are adjudicated; or - (4) That employee is on parole from any state or federal prison or work camp; provided that, in the event employee is on active probation or parole, a signed letter must be submitted with the application for a photo permit from the applicant's parole or probation officer, such letter must be on official stationary, and such letter must state that the employee has been authorized by the probation officer to maintain employment in an alcoholic establishment. In the event there is a criminal record discovered that would exclude the issuance of a photo permit, the designated agent of the police department shall issue a letter to the person fingerprinted, to the city clerk, and to the employer, stating that the person is ineligible for employment. (5) That employee has any outstanding arrest warrants for whom no service has been perfected. (t) Any employee excluded from receiving or holding a photo permit under the terms of this section shall have the right to appeal such exclusion to the governing body, which may in its discretion approve the issuance of a photo permit. - (g) The failure of an employee to get a photo permit will not prohibit the 13 ORDINANCE # 2004-27 employee from applying for and receiving one if all other conditions of this section are otherwise met. (Ord. No. 95-03, S 3-3-23, 5-1-95; Ord. No. 97-16, 12-1-97) - Sec. 6-52. Age limit for employees. (a) Except as authorized by state law or as herein provided, no licensee hereunder shall employ any person in or about the premises where alcoholic beverages are sold, consumed or offered for sale, to sell or deliver, or to aid or assist in the sale or delivery, directly or indirectly, of such alcoholic beverages, unless such person is 18 years of age or older. It shall likewise be unlawful for any person under the age of 18 years to sell, take orders for or deliver, or in any mamler take part or assist in the sale, serving or delivery of such alcoholic beverages. (b) This section shall not prohibit persons under 18 years of age who are employed in supermarkets, convenience stores, or drugstores from selling or handling alcoholic beverages which are sold for consumption off the premises if there is, at all times during which any person under 18 years of age is working, during hours within which alcoholic beverages are sold, either the licensee or at least one employee 21 years of age or older and who is serving in a supervisory capacity, on the premises inside the building within which the alcoholic beverages are sold. (Ord. No. 95-03, S 3-3-24, 5-1-95) State Law References: Similar provisions, a.c.G.A. ~ 3-3-24. Sec. 6-53. Limitations on employee conduct. - (a) Employees of alcoholic beverage licensees are prohibited from mingling with customers on licensees premises for the purpose of soliciting or encouraging alcoholic beverage sales. (b) Employees and contractees of licensees are prohibited from being under the influence of alcohol on the premises of the licensee during such employee's or independent contractor's working hours. (1) The purpose of this section is to ensure that employees and contractees are able to exercise with unimpaired judgment their responsibility for the public safety and good under this chapter and the laws of this state as they serve customers; (2) For the purpose of this section, under the influence of alcohol shall be as set by state law; (3) Employees and contractees violating this section shall be subject to a 15- day revocation of their photo permit by the officer responsible for the issuance of such permits upon a first offense; a 90-day revocation upon a second offense; and a one-year revocation for any subsequent offense; provided that, an appeal from such revocation is subject to the same - 14 ORDINANCE # 2004-27 appeals provided in the photo permit provisions of this chapter; and - (4) Licensees may be held responsible for multiple violations of this section under the enforcement provisions of this chapter. (Ord. No. 95-03, ~ 3-3-25, 5-1-95) Sec. 6-54. Pricing. (a) This section shall be construed to cover, include and apply to every type of alcoholic beverages licensed to be sold. (b) Each licensee shall maintain a daily schedule of the prices to be charged for all alcoholic beverages to be served and consumed on the licensed premises or in any room or part thereof. The schedule of prices shall be maintained in a manner so as to be available to the paying public and law enforcement officers or agents of governmental authority. Said schedule shall be effective except as hereinafter provided, for not less than a 24-hour period beginning at 12:01 a.m. and ending at midnight, and shall show thereon the date for which the schedule is effective. (c) No licensee or holder of any license to sell alcoholic beverages for consumption on the premises or in any part thereof, or employee or agent of a license, shall: (1) Offer or deliver any free alcoholic beverage to the general public, which shall include pricing policies which provide two or more drinks for a price less than the amount which would be due for each drink if sold separately; - (2) Deliver more than two alcoholic beverages to one person at one time; (3) Sell, offer to sell, or deliver to any person or group of persons any alcoholic beverage at a price less than one-half the price prior to 8:00 p.m., or after 8:00 p.m. less than the price regularly charged for such alcoholic beverage during the same 24-hour period for which the price schedule herein required is in effect, except at private functions not open to the public. "Private functions" as used herein shall mean those functions wherein the licensee has agreed to the use of the licensee's establishment by a person, firm or organization for a set period of time for valuable consideration; (4) Sell, offer to sell, or deliver to any person or group of persons two or more or an unlimited number of alcoholic beverages during any set period of time for a fixed price, except at private functions not open to the public; - (5) Sell, offer to sell, or deliver alcoholic beverages to any person or group of persons on anyone day at prices less than those charged the general public on that day, except at private functions not open to the public; 15 ORDINANCE # 2004-27 (6) Sell, otTer to sell, or deliver alcoholic beverages, by the pitcher or carafe, except to two or more persons at anyone time; - (7) Increase the volume of alcohol contained in a drink without increasing proportionately the price regularly charged for such alcoholic beverage during the same 24-hour period for which the price schedule is in effect; (8) Encourage or permit on the licensed premises any game or contest which involves the drinking of alcoholic beverages or the awarding of alcoholic beverages as a prize; (9) Sell simultaneously to one customer, two or more alcoholic beverages for a price substantially the same as is charged for one such alcoholic beverage; (10) Require or encourage the purchase of a second or subsequent alcoholic beverage at the same time another alcoholic beverage is purchased; or ( 11) Knowingly allow an alcoholic beverage purchased on the premises to be removed from the premises without having been consumed. "Premises," for the purpose of this subsection, shall be construed to mean the entire area under the supervision, management or control of the licensee, excluding areas for parking of motor vehicles, and, in the case of licensees whose licensed location is located on a portion of the premises of a club, organization, establishment or entity offering outdoor recreation (for instance, golf or tennis), then the word "premises" shall extend to cover all areas operated as a part of the club or entity excluding areas for parking of motor vehicles. - (d) No licensee shall advertise or promote in any way, whether within or without the licensed premises, any of the practices prohibited under subsection (c) of this section. (e) No provision of this section shall be construed to prohibit licensees from offering free food or entertainment at any time, or to prohibit licensees from including an alcoholic beverage as a part of a meal package, or to prohibit the sale or delivery of wine by the bottle or carafe when sold with meals or to more than one person, or to prohibit any hotel or motel from offering room services to registered guests or to prohibit the sale of more than two drinks at one time which are to be consumed by the purchaser out-of- doors on the premises of the licensee, as described in subsection (c) of this section, in connection with the purchaser's participation as a player in the games of golf or tennis; otherwise, no food and alcoholic beverage package may be offered by any licensee; provided, however, that nothing contained in this section shall be construed to allow a licensee to circumvent the intent of this section by offering meals which include an alcoholic beverage as a device or scheme to promote drink sales at a price per beverage - 16 ORDINANCE # 2004-27 less than the daily listed price. (Ord. No. 95-03, ~ 3-3-26,5-1-95) - Sec. 6-55. Prices to be conspicuously displayed. Each retail package licensee shall have conspicuously displayed within the interior of the licensed premises a printed price list of the alcoholic beverages offered for sale or shall place the price on the package or on the bottom of the shelf where the alcoholic beverages are exhibited for sale. (Ord. No. 95-03, ~ 3-3-27, 5-1-95) Sec. 6-56. Exterior advertisements. (a) Distilled spirits. No sign of any kind, painted or electric, advertising any brand or price of distilled spirits shall be permitted on the exterior, or in the window, except one sign located in the interior which shall not be more than 12 inches by 36 inches, and may be lighted or unlighted. (b) Wine and malt beverages. Outside advertising of wine and malt beverages sold on the premises shall not consume more than one-fifth of all advertising space for all products sold on the premises; package stores operating as such are exempted. (Ord. No. 95-03, ~ 3-3-28, 5-1-95) Sec. 6-57. Misrepresentation of alcoholic beverages. - It shall be unlawful for licensees hereunder or their agents to add to the contents of a bottle or to refill empty bottles or in any other manner to misrepresent the quantity, quality or brand name of any alcoholic beverage. (Ord. No. 95-03, ~ 3-3-29, 5-1-95) Sec. 6-58. Coin-operated; similar machines prohibited. No retail dealer in packaged distilled spirits shall permit on his premises any slot machine or mechanical music box or pinball machine of any kind or character or any machine operated for amusement purposes. (Ord. No. 95-03, ~ 3-3-30, 5-1-95) Sec. 6-59. Serving of drinks by employees only. Drinks or packages hereunder shall be served only by employees of the establishment. (Ord. No. 95-03, ~ 3-3-31,5-1-95) Sec. 6-60. Exotic dancing in connection with pouring license. - It shall be unlawful for any licensee who sells alcoholic beverages by the drink to 17 ORDINANCE # 2004-27 permit professional belly dancers, strip dancing, exotic dancing, or any exhibition of any like kind by whatever name called in connection with the operation of a restaurant, lounge, or private club, as defined herein. (Ord. No. 95-03, ~ 3-3-32, 5-1-95) - Sec. 6-61. Hours of operation. (a) Package, distilled spirits. Licensees in package distilled spirits shall not sell except between the hours of 8:00 a.m. and 11 :45 p.m., Monday through Saturday. (b) Package, wine and malt beverages. Licensees in package wine and malt beverages shall not sell except between the hours of 8:00 a.m. and 2:00 a.m., Monday through Friday (Saturday morning), and 8:00 a.m. through 11:45 p.m. on Saturday. (c) Pouring. distilled spirits and pouring, wine and malt beverages. Licensees in pouring distilled spirits and licensees in pouring wine and malt beverages shall not sell except between the hours of 8:00 a.m. to 2:00 a.m., Monday through Friday (Saturday morning), and Saturday 8:00 a.m. through 2:55 a.m. (Sunday morning). This section shall apply to private clubs as well. Provided that, these hours may be extended as provided by a special sales permit and Sunday sales permit as described in this chapter. (d) Wholesalers. Business hours of any wholesaler licensed hereunder shall be limited to the hours from sunup to 9:00 p.m., exclusive of Sunday. No wholesaler shall be open on Sunday. - (e) Christmas Day. Regardless of the license held, including Sunday sales permits or late hours permits, licensees in package or pouring distilled spirits or wine and malt beverages shall not sell on Christmas Day, which for this purpose begins at 12:01 a.m. on Christmas Day. (t) Election days. The sale of alcoholic beverages in the city shall be permitted on election days, as the same are defined in O.c.G.A. ~ 3-3-20. (g) Thanksgiving Day. Licensees in package distilled spirits shall not sell on Thanksgiving Day. (Ord. No. 95-03, ~ 3-3-33, 5-1-95) Sec. 6-62. Sunday sales permit. (a) In addition to the hours of operation specified in this chapter, licensees in pouring distilled spirits and licensees in pouring wine and malt beverages may sell and serve on Sundays from 12:30 p.m. until 12:00 midnight, provided the licensee applies for and receives a Sunday sales permit for such sales from the city. The licensee must also hold a city alcoholic beverage pouring license. The hours of operation may be extended for New Year's Eve when the holiday falls on Sunday to allow licensees who also hold a Sunday sales permit to sell and serve alcoholic beverages until 2:55 a.m. on Monday. -- 18 ORDINANCE # 2004-27 - (b) Such applicants shall complete a form furnished by the city, supplying such information as may be requested. Prior to permit issuance, the applicant must make available records for audit purposes to determine and verify if the establishment is meeting all requirements prescribed in this chapter. The permit may be denied or removed for failure to so conform or failure to produce satisfactory evidence of conforming. (c) All annual permit renewals shall be made in the same manner and during same time periods as other alcoholic beverage license renewals. All renewals are subject to audit prior to being renewed to ensure compliance with this section. All renewal applications shall be accompanied by a statement by a certified public accountant that no more than 50 percent of sales are derived solely from the sale of alcoholic beverages. (d) No Sunday sales permit is transferable. (e) A fee for issuance of the Sunday sales permit may be established and/or changed from time to time by the governing body by resolution, and a schedule of fees shall be maintained in the office of the city clerk. (t) The Sunday sales permit shall be subject to any requirements in this chapter pertaining to enforcement and revocation proceedings and shall be automatically revoked if the alcoholic beverage pouring license is revoked. (Ord. No. 95-03, ~ 3-3-34,5-1-95; Ord. No. 95-24, 12-18-95) - State Law References: Local authorization and regulation of sales of alcoholic beverages on Sunday, a.c.G.A. ~ 3-3-7; sale of alcoholic beverages on Sundays, election days and Christmas Day, a.c.G.A. ~ 3-3-20. Sec. 6-63. Special late hours permit. (a) In addition to the hours of operation specified in this chapter, licensees in pouring distilled spirits and licensees in pouring wine and malt beverages may sell and serve during the hours of 2:00 a.m. and 4:00 a.m., Monday through Friday (Saturday morning), provided the establishment applies for and receives a special late hours permit for such sales from the city. The licensee must also hold a city alcoholic beverage pouring license. - (b) Such an licensee is authorized to apply for a special after hours sales permit. Applicants for such a permit shall complete a form furnished by the city, supplying such information as may be requested. Prior to permit issuance, the applicant must make available records for audit purposes to determine and verify if the establishment is meeting all requirements prescribed in this chapter. The permit may be denied or removed for failure to so conform or failure to produce satisfactory evidence of conforming. 19 ORDINANCE # 2004-27 (c) All annual permit renewals shall be made in the same manner and during same time periods as other alcoholic beverage license renewals. All renewals are subject to audit prior to being renewed to ensure compliance with this section. All renewal applications shall be accompanied by a statement by a certified public accountant that no more than 50 percent of sales are derived solely from the sale of alcoholic beverages. - (d) No special late hours sales permit is transferable. (e) A fee for issuance of the special late hours sales permit may be established and/or changed from time to time by the governing body by resolution, and a schedule of fees shall be maintained in the office of the city clerk. (1) The special late hours sales permit shall be subject to any requirements in this chapter pertaining to enforcement and revocation proceedings and shall be automatically revoked if the alcoholic beverage pouring license is revoked. (Ord. No. 95-03, S 3-3-35, 5-1-95) Sec. 6-64. Time limit on vacating premises after close. In all locations licensed to serve alcoholic beverages by the drink, both public and private, said premises must be vacated of customers within 30 minutes of the time of closing as established by this chapter. (Ord. No. 95-03, S 3-3-36, 5-1-95) - Sec. 6-65. Clear view of entrance and interior of licensed premises. (a) No licensee for the sale of alcoholic beverages by the package shall operate under said license unless the front entrance to the licensed premises is clearly visible from the public street. (b) No screen, blind, curtain, partition, article or thing which shall prevent a clear view into the interior shall be permitted in the window or upon the doors of any retail store for the sale of alcoholic beverages by the package, and no booth, screen, partition or other obstruction shall be permitted within the interior of any such store. Each such store shall be so lighted that the interior of the store is visible day and night. (Ord. No. 95-03, S 3-3-37, 5-1-95) Sec. 6-66. Drive-in service window. Packaged wine and malt beverages may be dispensed from a drive-in service window, provided said window is located so as to be clearly visible from adjacent streets. (Ord. No. 95-03, S 3-3-38, 5-1-95) Sec. 6-67. Private residential group club defined. - 20 ORDINANCE # 2004-27 (a) There is hereby established a classification to be known as a "private residential group club," which shall be defined as: - (1) A freestanding building in which no dwelling is located; (2) Existing within a residential complex which has in excess of more than 500 residential units; (3) Having only one person, partnership, corporation, or legal entity as the owner of record of said complex units entirety; (4) With security services to insure the integrity of the complex; (5) Established solely for the exclusive use of the residents of the complex in which it is located or their registered guest. (b) The distance requirements contained elsewhere in this chapter shall not apply to a private residential group club, provided however, the same shall not be located within 200 feet of a dwelling located within said complex, nor shall it be located within 500 feet of any dwelling, church, school, or public building outside said complex, by any means of measurement. - (c) Upon approval of the mayor and council of the city, and application and qualification of the license holder as elsewhere required in this chapter, alcoholic beverages may be sold at a private residential group club, provided: (1) Such sale shall not be conducted after 11:00 p.m.; (2) Such sale is made only to residents of the complex in which the club is located or their invited registered guest; and (3) Such sale is made in accordance with the other ordinances regulating the sale of alcoholic beverages by a licensee in the city. In the event this section shall conflict with any other ordinance regulating the sale of alcoholic beverages within the city, this section shall control as it applies to a private residential group club. (Ord. No. 95-03, ~ 3-3-9,5-1-95) Sec. 6-68. Compliance with sanitary and fire protection regulations; inspections. (a) All licensed premises shall be kept clean and in proper sanitary condition and in full compliance with the provisions and regulations of the health department of the county. Licensee shall not permit any disturbance of the peace or obscenity or any lewd, immoral or improper entertainment, conduct or practice on said premises. - 21 ORDINANCE # 2004-27 (b) The fire department shall inspect such premises and report its findings to the governing body. All premises licensed hereunder shall conform at all times with all fire regulations of the city. (Ord. No. 95-03, S 3-3-40, 5-1-95) - Sec. 6-69. Sale to certain persons prohibited. (a) No licensee or employee hereunder shall sell any alcoholic beverage to any person under the age of 21 years or to any person in an intoxicated condition or to any person known to such licensee or employee to be of intemperate habits or of unsound mind. It shall be the responsibility of the licensee or employee to examine the proper identification of patrons to be certain that all such persons are of legal age. The term "proper identification" means any document issued by a governmental agency containing a description of the person, such person's photograph, or both, and giving such person's date of birth and includes, without being limited to, a passport, military identification card, driver's license, or an identification card authorized under O.C.G.A. SS 40-5-100-- 40-5-104. "Proper identification" shall not include a birth certificate. (b) Any person 17 years of age or older charged with violating this section shall be entitled on request in municipal court to have the case transferred to the state court ofthis county. (c) Any person 17 years of age or older arrested for violating this section shall be fingerprinted in accordance with O.C.G.A. SS 35-3-33 and 35-3-35. - (d) Any person 17 years of age or older convicted of violating this section shall be guilty of a misdemeanor and subject to a fine or other punishment as defined in section 1-8 of this Code, unless otherwise provided for in this Code or the Official Code of Georgia Annotated. (e) F or the purpose of this section, any person under the age of 21 years shall be considered a minor. (Ord. No. 95-03, S 3-3-41, 5-1-95) State Law References: Sale or furnishing of alcoholic beverages to intoxicated persons, a.c.O.A. S 3-3-22; furnishing alcoholic beverages to persons under 21 years of age, a.C.O.A. SS 3-3-23, 3-3-23.1. Sec. 6-70. Minors on licensed premises prohibited. Except as authorized by state law, no person who holds a license to sell alcoholic beverages shall allow any minor to be in, frequent or loiter about the premises of the licensee unless such minors are accompanied by a parent or legal guardian; provided, however, such minors shall be permitted in restaurants or private clubs as defined herein without being accompanied by a parent or legal guardian; and provided further, this section shall not apply to minors who are employees as authorized under the terms of this chapter. (Ord. No. 95-03, S 3-3-42, 5-1-95) - 22 ORDINANCE # 2004-27 Sec. 6.71. Alcoholic use by persons under age. - (a) It shall be unlawful for any person under the age of 21 years to purchase, consume or possess any alcoholic beverage. (b) It shall be unlawful for any person to keep or maintain a place where persons under the age of 21 years knowingly are allowed and permitted to come and purchase, consume or possess any alcoholic beverage. (c) It shall be unlawful for any person to buy any alcoholic beverage and furnish it to a person under the age of 21 years. (d) It shall be unlawful for any person under the age of 21 years to purchase, consume or possess any alcoholic beverage under authority of a false, fictitious or altered form of identification. (e) Any person 17 years of age or older convicted of violating this section shall be guilty of a misdemeanor and subject to a fine or other punishment as defined in section 1-8 of this Code, unless otherwise provided for in this Code or the Official Code of Georgia Annotated. (f) Any person 16 years of age or under charged with violating this section shall be referred to the juvenile court of this county. - (g) Any person 17 years of age or older charged with violating this section shall be entitled on request to have the case transferred to the state court of this county. (h) Any person 17 years of age or older arrested for violating this section shall be fingerprinted in accordance with O.c.G.A. ~~ 35-3-33 and 35-3-36. (i) Any person 17 years of age or older arrested for violating this section shall be entitled to be released on a driver's license bond in accordance with O.c.G.A. ~~ 3-3- 23.1 and 17-6-11. CD The prohibitions contained in subsections (a), (b) or (c) of this section shall not apply with respect to the sale, purchase or possession of alcoholic beverages for consumption: (1) For medical purposes pursuant to a prescription of a physician duly authorized to practice medicine in this state; (2) At a religious ceremony; or (3) When possession or consumption by a person under the age of 21 years takes place in the home of the person's parent or legal guardian and such parent or legal guardian is present. - 23 ORDINANCE # 2004-27 (Ord. No. 95-03, S 3-3-43, 5-1-95) See. 6-72. Prohibited activities. - (a) No alcoholic beverages shall be sold, possessed, or consumed by any person in any school building or on any school ground. (b) No alcoholic beverages shall be sold, possessed or consumed by any person in any city park except at a closed function as defined herein. (c) It shall be unlawful for any person to consume or to have in his or her possession while driving or operating any vehicle on any public road or street any alcoholic beverage in any open or unsealed original container or cup, can, bottle or other open or unsealed container. (Ord. No. 95-03, S 3-3-44, 5-1-95) (d) No alcoholic beverage shall be sold, bartered, exchanged, given, provided, or furnished to any person who is in a state of noticeable intoxication. Sees. 6-73. Retail sale of kegs; required labeling; removal of labels (a) As used in this Code section, the term: (I) "Keg" means any brewery-sealed container or barrel containing, by liquid volume, more than two gallons of malt beverage. (2) "Retail dealer," "retail licensee," or "licensee" means a person holding either a retail dealer license, a permit issued by the commissioner authorizing the sale of alcoholic beverages for consumption only on the premises for a period not to exceed one day, or a beverage alcohol caterer license. (b) No person licensed under this chapter shall sell malt beverages at retail by the keg except as provided in subsections (c), (d), and ( e) of this Code section. The commissioner may take punitive action against violators, up to and including revocation of the state retail dealer's license of any licensed retail dealer who fails to comply with this Code section. The undertaking of any punitive action allowed under this Code section shall not prohibit criminal prosecution for sale to underage persons. (c) Each retail licensee selling kegs containing malt beverages for consumption off licensed premises shall require each keg purchaser to present a Georgia driver's license or other proper identification at the time of purchase. The licensee shall record for each keg sale: the date of sale; the size of keg; the keg identification number; the amount of container deposit; the name; address; date of birth of the purchaser; and the form of identification presented by such purchaser. The purchaser shall sign a statement at the time of purchase attesting to the accuracy of the purchaser's name and address, the location where the contents of the keg will be consumed, and acknowledging that a violation of o.CG.A. Section 3-3-23, as it relates to furnishing alcoholic beverages to persons under the age of 21 years, may result in civil liability, criminal prosecution, or both. The licensee shall retain the identification form and purchaser's signed statement - - 24 ORDINANCE # 2004-27 - attesting to the accuracy of the purchaser's name and address and acknowledging that a violation of O.C.G.A. Section 3-3-23, as it relates to furnishing alcoholic beverages to persons under the age of 21 years, may result in civil liability, criminal prosecution, or both, for a minimum of six months following the sale of the keg. (d) Each keg sold at retail for consumption off licensed premises shall be labeled with the name and address of the retail licensee, the keg identification number, and the state alcohol license number of the business. The Department of Revenue will prescribe the form of registration label or tag to be used for this purpose. The registration label or tag shall be supplied by the Department of Revenue without fee and securely affixed to the keg by the licensee making the sale. In addition to the label or tag, the Department of Revenue shall provide guidelines to the licensee on the information to be recorded on the identification form required under subsection (c) of this Code section. (e) The licensee shall record the date of return of the keg on the identification form required under subsection (c) of this Code section. If there is no label or tag affixed to the keg or if the identification number is not legible, the licensee shall indicate this fact on the identification form required under subsection (c) of this Code section. The licensee shall not refund a deposit for a keg that is returned without the required label or tag and identification number intact and legible. (f) The removal of the required label shall be unlawful until such time that it is lawfully returned to the retailer by the purchaser. Possession of a keg without the required label and identification number shall be unlawful and subject to penalty pursuant to Code Section 6-162. - Sees. 6-74--6-100. Reserved. DIVISION 2. APPLICA TION See. 6-101. Generally. (a) No license shall be approved by the governing authority for any applicant who has not complied with the application provisions of this article. (b) In addition to other application and licensing provisions as set forth in this article, it is the policy of the city that any license for the sale of alcoholic beverages shall be applied for by, and be issued to, an owner who is a full time employee and, if not, then by and jointly to the owner and an agent who is a full time employee responsible for the sale of alcoholic beverages as prescribed in this chapter, on the premises applied for or on other such premises in the county owned by the owner. (1) Where the applicant is a sole proprietor, any license for the sale of alcoholic beverages shall be applied for by, and shall be issued to, the sole proprietor if the sole proprietor is a full time employee and, if not, then by and jointly to the sole proprietor and an agent who is a full time employee - 25 ORDINANCE # 2004-27 responsible for the sale of alcoholic beverages as prescribed in this chapter, on the premises applied for or on other such premises in the county owned by the sole proprietor. - (2) Where the applicant is a partnership, any license for the sale of alcoholic beverages shall be applied for by, and shall be issued to, the partnership together with either a majority partner who is a full time employee and, if not, then by and jointly to a majority partner and an agent who is a full time employee responsible for the sale of alcoholic beverages as prescribed in this chapter, on the premises applied for or on other such premises in the county owned by the partnership. (3) Where the applicant is a corporation, whether publicly traded or privately held, any license for the sale of alcoholic beverages shall be applied for by, and shall be issued to, the corporation together with an agent who is a full time employee responsible for the sale of alcoholic beverages as prescribed in this chapter, on the premises applied for or on other such premises in the county owned by the corporation. (4) Where the owner is a private club, any license for the sale of alcoholic beverages shall be applied for by, and shall be issued to, the private club together with an officer of said club who is a full time employee and, if not. then by and jointly to the private club together with an agent who is a full time employee responsible for the sale of alcoholic beverages as prescribed in this chapter, on the premises applied for or on other such premises in the county owned by the private club. (Ord. No. 95-03, S 3-2-1, 5-1-95; Ord. No. 97-16, 12-1-97) - Sec. 6-102. Written format. An applicant for an alcoholic beverage license shall make written application to the governing body of the city through the business license officer upon such forms to be prepared and approved by the governing body; provided that an applicant seeking more than one type of license or an additional license must submit a separate application for each type of license sought. (Ord. No. 95-03, S 3-2-2, 5-1-95; Ord. No. 2003-17, 5-19-03) Sec. 6-103. Contents. The written application upon the prescribed forms shall include each of the following: (1) Information on the type of alcoholic beverage license sought. (2) Infonnation on the location which will be the site of the license sought, as follows: - 26 ORDINANCE # 2004-27 a. The street address of the premises; - b. The name(s), home addressees), and home phone number(s) of the owner(s) of the premises; c. Plans and renderings of the proposed premises, unless the city clerk certifies that such plans and renderings are on file, and the applicant certifies that such plans and renderings are correct; d. A certification of zoning from the city certifying that the place of the proposed business is properly zoned therefor; and e. A certificate from a registered surveyor showing a scale drawing of the location of the proposed premises and the distance to the nearest school located within 600 feet, and to the nearest church, library, park, public building, or residence located within 300 feet, by the most direct route of travel on the ground; such scale drawing shall also show the distance from any part of the proposed premises to the nearest property line of the school, church, park, public building, library, or residence located within 100 feet, as measured by a straight line from the nearest point of the premises to the property line. - (3) Information on the business at the location of the proposed licensed premises, as follows: a. The name, street address, and phone number of the business; b. A description of the nature and character of the business; and c. A copy of the warranty deed if the business owns the premises; if the business leases the premises, a copy of the lease agreement. (4) Information on the applicant, as follows: a. If a sole proprietor, then from the sole proprietor the name, home address, home phone number, date of birth, social security number, county of residency and country of citizenship, a statement of arrests; and, in addition, if the sole proprietor does not meet the citizenship or residency requirements of this article or is not a full time employee, then the same information is also required for an agent who is a full time employee, provided that the person so named must meet all requirements of this article; b. If a partnership, then for each partner owning ten percent or more, - 27 ORDINANCE # 2004-27 the name, home address, home phone number, date of birth, social security number, county of residency and length of residency, country of citizenship, percent of ownership, and a statement of arrests; and, in addition, if no such partner is a full time employee, then the same information is required for an agent who is a full time employee, provided that the person so named must meet all requirements of this article; - c. If the applicant is a publicly traded corporation, then the corporate name, corporate chief executive officer, corporate address, and corporate phone number; and in addition if the corporate chief executive officer is not a full time employee, then for an agent who is a full time employee, the name, home address, home phone number, date of birth, social security number, county of residency and length of residency, country of citizenship and a statement of arrests, provided that the person so named must meet all requirements of this chapter; d. If the applicant is a privately held corporation, then the corporate name, corporate chief executive officer, corporate address, and corporate phone number; and for each person owning ten percent or more, the name, home address, home phone number, date of birth, social security number, length of residency in the county, country of citizenship, percent of ownership, and a statement of arrests; and in addition if no such owner is a full time employee, then for an agent who is a full time employee, the name, home address, home phone number, date of birth, social security number, county of residency and length of residency, country of citizenship, and a statement of arrests, provided that the person so named must meet all requirements of this chapter; and - e. If the applicant is a private club, then the private club name, private club chief executive officer, private club address, private club phone number, and a statement of arrests for the chief executive officer; and in addition if the chief executive officer is not a full time employee, then for an agent who is a full time employee, the name, home address, home phone number, date of birth, social security number, county of residency and length of residency, country of citizenship, and a statement of arrests, provided that the person so named must meet all requirements of this chapter. (5) Reserved. - 28 ORDINANCE # 2004-27 (6) The applicant shall furnish such other data, information or records as may be required by the governing body or its authorized officers in order to make a determination whether the applicant or agent meets the requirements of this article. - (7) The application must be sworn to by the applicant. (8) In instances where the ownership of an existing licensed location is the same but the agent has changed, the new agent must apply, and all application provisions of this chapter shall apply, except that only information on the new agent shall be required on an abbreviated form provided through the city clerk or other designated official; provided that, a copy of the most recently approved application shall be attached; and further provided, that a certification must be made by the ownership or legally authorized designee other than the new agent, that all previous information on the most recently approved application remains true and correct to the best knowledge of the applicant. (Ord. No. 95-03, ~ 3-2-3,5-1-95; Ord. No. 97-16, 12-1-97) Sec. 6-104. Fees. - Upon filing of the application for an alcoholic beverage license with the business license officer, the city shall require the applicant to pay a processing fee according to a fee schedule set by the governing body to cover the expense of advertising, investigation and processing of the application. The fee is not refundable. (Ord. No. 95-03, ~ 3-2-4,5-1-95; Ord. No. 2003-17, 5-19-03) Sec. 6-105. Producing persons for oral interrogation. Applicants by filing an application agree to produce for oral interrogation any person or persons requested by the governing body or authorized officers when such persons are considered important in the ascertainment of the facts relative to such license application. (Ord. No. 95-03, ~ 3-2-5, 5-1-95) Sec. 6-106. Time limit for furnishing information. All applicants for an alcoholic beverage license shall furnish all data, information, records or persons requested of them by the mayor and councilor its authorized officers, and the failure to furnish such data, information and records within 30 days from the date of such request shall automatically serve to dismiss the application. (Ord. No. 95-03, ~ 3-2-6,5-1-95) Sec. 6-107. Authorized officers. - 29 ORDINANCE # 2004-27 Persons considered to be authorized officers of the governing body include, but are not limited to, the following or their designees: City clerk, city attorney, city administrator, police chief, city building inspector, city finance officer, business license officer, and hearing officer. (Ord. No. 95-03, S 3-2-7, 5-1-95; Ord. No. 2003-17, 5-19-03) - Sec. 6-108. False information. Any material omission or untrue or misleading information contained in or left out of an application shall be cause for the denial thereof, and, if any license has previously been granted under these circumstances, such false information or omission shall constitute cause for the revocation of the license. (Ord. No. 95-03, S 3-2-8, 5-1-95) Sec. 6-109. Investigation by police department. The police chief or designee shall cause an investigation to be conducted into the character, citizenship and residency of every applicant for a license and shall cause a report to the governing body to be issued, including findings and a recommendation, to be filed with the business license officer. A search, both locally and through the National Crime Information Center, shall be conducted to determine the applicant's and agent's criminal record. Each applicant and agent shall provide other such infonnation as may be required to confirm the identity of the applicant and agent, including fingerprints in such a manner as may be required if necessary to confirm the identity. (Ord. No. 95-03, S 3-2-9, 5-1-95; Ord. No. 2003-17, 5-19-03) - Sec. 6-110. Investigation by city building inspector. The city building inspector or designee shall cause an investigation to be conducted of every application for a license and shall cause a report to the governing body to be issued, including findings and a recommendation, to be filed with the business license officer. Such investigation shall determine whether the existing or proposed premises complies with all building, parking, health, fire, and similar city ordinances, whether the plats submitted as part of the application are correct, and whether the place of the proposed business is properly zoned therefor. (Ord. No. 95-03, S 3-2-10, 5-1-95; Ord. No. 2003-17, 5-19-03) Sec. 6-111. Investigation by finance officer. The finance officer or designee shall cause an investigation to be conducted of every applicant for a license and shall cause a report to the governing body to be issued, including findings and a recommendation, to be filed with the business license officer. Such investigation shall be made into the city tax records to determine if the applicant, owner or agent or other parties with interest in the application, such as the owner of the property if not the same as the applicant, owner, or agent, has or have any outstanding taxes or special assessments that are delinquent against the property or any other monies - 30 ORDINANCE # 2004-27 owing to the city. (Ord. No. 95-03, ~ 3-2-11,5-1-95; Ord. No. 2003-17, 5-19-03) - Sec. 6-112. Time limit for city to process. The city may require 45 days for processing any application for an alcoholic beverage license required under this article. (Ord. No. 95-03, ~ 3-2-12, 5-1-95) Sec. 6-113. Public notices of intent and of hearing. (a) All applicants for licenses under this article shall give notice of the purpose of making such application by advertisement at least one time a week for two consecutive weeks in the newspaper in which the legal advertisements of the city are carried, which notice shall contain the business name and address of the location of the proposed premises; the owners of the business as required by the application; and the name of the applicant(s). The ad will also contain the date and time the hearing. The advertisement referred to in this section shall be of the type not smaller than ten point capital and lowercase and shall be at least a one-inch column advertisement. (b) Where the proposed location has been vacant for one year or more or has never been licensed to sell alcoholic beverages, the applicant shall place or cause to be placed upon the location for which a license to sell alcoholic beverages is to be conducted a sign stating the following: - "Alcoholic beverage license [type] applied for. Hearing before mayor and council of the City of Smyrna, Georgia, on the day of 19 , at 7:30 p.m." (c) The sign or signs shall not be less than 12 inches by 12 inches in size and shall face toward all public streets, alleys, sidewalks, or other public property which adjoin or adjoins the location wherein alcoholic beverages are to be sold. Signs shall be displayed for a period of not less than ten days prior to the scheduled hearing. (d) Payment to cover the cost of newspaper advertisement and sign shall be made as required in this article. (Ord. No. 95-03, ~ 3-2-13,5-1-95; Ord. No. 2003-17, 5-19-03) Sec. 6-114. Public hearing on application. (a) Where the proposed location has been vacant for one year or more or has never been licensed to sell alcoholic beverages, the governing body shall hold a public hearing on the application for a license after notice as required herein and prior to action by the governing body. - (b) For all other applications, a hearing officer designated by the governing 31 ORDINANCE # 2004-27 body shall hold a public hearing on the application for a license after notice as required herein and prior to action by the hearing officer. - (c) When an application is denied by the hearing officer, the applicant may appeal to the governing body. Such appeal must be filed within ten days of the decision of the hearing officer. The applicant must provide notice of the appeal hearing in the same manner as provided in section 6-1 13 (a) of this chapter. (Ord. No. 95-03, S 3-2-14, 5-1-95; Ord. No. 2003-17, 5-19-03) Sec. 6-115. Appearance of applicant. The applicant for a license shall appear before the governing body or hearing officer when the application is to be considered; provided that the applicant may be represented by the manager who is jointly applying. (Ord. No. 95-03, S 3-2-15, 5-1-95; Ord. No. 2003-17, 5-19-03) Sec. 6-116. Denial of License The governing body or hearing officer shall deny a license when the application or the evidence presented before the governing body or hearing officer at the time of the hearing on the application shows any of the following conditions to exist: (1) The applicant has been adjudicated as incompetent or insane, or has insufficient mental capacity to conduct the business for which the application is made. - (2) The applicant has been discharged from any military serVice under dishonorable conditions. (3) The applicant, as a previous or current holder of a license to sell alcoholic beverages, has been convicted of violating any laws, ordinances, or regulations regulating such business if such conviction or arrest occurred within a five-year period immediately preceding the date of application. The term "conviction" shall include an adjudication of guilt, a plea of guilty or nolo contendere or the forfeiture of bond when charged with a crime. If there is an arrest and charges are still pending, then action shall be postponed until the charges are adjudicated. (4) The applicant, within a five-year period preceding the date of application, shall have been convicted for any felony charged under any of the laws of the several states or of the United States. The term "conviction" shall include an adjudication of guilt, a plea of guilty or nolo contendere or the forfeiture of bond when charged with a crime. If there is an arrest and charges are still pending, then action shall be postponed until the charges are adjudicated. - 32 ORDINANCE # 2004-27 (5) The applicant has been convicted of more than one misdemeanor, including traffic violations, involving the use or abuse of any alcoholic beverage, opiate or drug, within the three years preceding the application. The term "conviction" shall include an adjudication of guilt, a plea of guilty or nolo contendere or the forfeiture of bond when charged with a crime. If there is an arrest and charges are still pending, then action shall be postponed until the charges are adjudicated. ... (6) The applicant is on parole from any governing authority. (Ord. No. 95-03, ~ 3-2-16,5-1-95; Ord. No. 2003-17, 5-19-03) (7) Any license authorizing the sale of alcoholic beverages at the location for which the present license is sought is at the time the application is filed, under suspension. (8) Any license authorizing the sale of alcoholic beverages at the location for which the present license is bought has been revoked within six months of the date that the application is filed. Sec. 6-117. Reports from investigations. ... No license shall be issued unless the investigations by the police department, city building inspector, finance officer, or as are otherwise required or may be appropriate to the purposes of this article, have been completed and a satisfactory report has been issued. (Ord. No. 95-03, ~ 3-2-17,5-1-95) Sec. 6-118. Distance from certain locations. (a) It is the policy of the city that, in keeping with the purposes of this article, any premises proposed for license for the sale of alcoholic beverages shall be at a suitable distance from a school, church, park, public building, library, and residence. (b) A suitable distance shall be as follows: (1) For a license for package distilled spirits, a suitable distance is 600 feet from a school, and 300 feet from a church, park, public building, library, or residence. (2) For a license for pouring distilled spirits, a suitable distance is 600 feet from a school, and 200 feet from a church, park, public building, library or residence; provided, however, that in no event shall any part of the proposed premises be located closer than 100 feet from the property line of the school, church, park, public building, library, or residence, ... (3) For a license for package wine and malt beverages, a suitable distance is 33 ORDINANCE # 2004-27 600 feet from a school, and 300 feet from a church, park, public building, or library; provided that the distance from a church, park, public building, or library shall be waived when the applicant is a grocery store. - (4) For a license for pouring wine and malt beverages, a suitable distance is 600 feet from a school, and 200 feet from a church, park, public building, library or residence; provided, however, that in no event shall any part of the proposed premises be located closer than 100 feet from the property line of the school, church, park, public building, library, or residence, (5) For a license for wholesale, or for a license for manufacture, a suitable distance is 600 feet from a school, and it is 600 feet from a church, park, public building, library, or residence. (6) Within the area defined as Smyrna Central Downtown, a license for the pouring of distilled spirits or for pouring wine and malt beverages, it shall be 100 feet from a school, and 100 feet from a church, and no distance requirement from a residence, park, public building or library. (7) Within the area defined as Smyrna Central Downtown, a license for package wine and malt beverages, a suitable distance shall be 300 feet from a church, and no distance requirement from a residence, park, public building, or library. (c) The measurement of suitable distance, unless otherwise specified in this chapter, shall be defined as: - (I) The measure in lineal feet of the most direct route of travel on the ground by a pedestrian from the center of the nearest door of customer entry of the proposed license premises to the nearest property line of the church, school, park, public building, library, or residence. Such travel shall be measured as a straight line from the customer door to the property line and is not required to follow a line running along the nearest sidewalk or street route; provided that, when a straight line of travel would not be a customary and reasonable line of travel because of obstacles to such travel, the line of travel shall be angled around such obstacles and the distance shall be the sum of the segments of the line. (2) Except as otherwise specified herein, the measurement of suitable distance within the Smyrna central downtown shall be defined as the measure in lineal feet of the most direct route of travel on the ground by a pedestrian from the center of the front door of customer entry of the proposed license premises to the front door of the church, school, public building, library and/or residence, and the nearest property line of a park. Such travel shall be measured as a straight line from front door to front door and is required to follow a line running along the nearest sidewalk or street route; - 34 ORDINANCE # 2004-27 - provided that, when a straight line of travel would not be a customary legal reasonable line of travel because of obstacles to such travel, the line of travel shall be angled around such obstacles and the distance shall be the sum of those segments of lines. (d) After issuance of any license, no change in the location of a customer entry shall be made which would affect compliance with any distance requirements of this article. (e) An application for a new license on an existing licensed location, or on a previously licensed location for a period of one year from expiration of the previous license to the date of application, shall not be required to comply with the distance requirements from a school, church, park, public building, library, or residence. An application filed under this section shall meet and qualify under all other requirements of this article for the granting of a new license. (Ord. No. 95-03, ~ 3-2-18,5-1-95; Ord. No. 2001-0917A, 9-17-01; Ord. No. 2001- 0917B, 9-17-01; Ord. No. 2003-10, 2-17-03) State Law Refenmces: Similar provisions, a.c.G.A. ~ 3-3-21. Sec. 6"1190 Citiz~~sh!p and residency. - No Ecer.8e shall be granted to any applicant or remain held by any licensee or agent whc i~ !!'.)t a citizen of the United States and who is not a resident within the State of Ge'Jrgia; provided that an owner who does not meet this requirement may do so through an agent who does. (Ord. No. 95-03, ~ 3-2-19, 5-1-95; Ord. No. 97-16, 12-1-97) Sec. 6-120. Corpo"ate registration. Nc licer:se shall be granted to any applicant who is a ciJrporation or l)ffi~er !he:-eof whc is pot ::-~giste!'~i cr domesticated with the i;orporat10ns commissicner cf th~ ,::,~fi.ce of the Secret:L}' of St'lte.of Georgia. (Ord. No. 95-03, .~ 3-2-20,5-1-95) Sec. 6~121. Applicant as guise. (a) Rt;>.served, (b) No license shall be granted to an applicant if it appears to the governing body that another person who mayor may not be eligible for a license is using the applicaat as a guise :0 cbtain a license. (O!'d. N'J. 95-03, ~ 3-2-21,5-1-95; Ord. No. 200l-fJ917D, 9-17-01) Sec. 6-122, Age. - No license shall1:Je granted to an applicant if the applicant shall not have attained the age of 21. 35 ORDINANCE # 2004-27 (Ord. No. 95-03, S 3-2-22, 5-1-95) Sec. 6-123. Wholesale license. - (a) No license for retail sales shall be granted to an applicant who has any direct financial interest in a license for the sale of alcoholic beverages at wholesale. (b) No license for retail sales shall be granted to an applicant who is related to any distributor or wholesaler of alcoholic beverages or employees thereof, within the first degree of consanguinity or affinity as computed according to civil law. (Ord. No. 95-03, S 3-2-23, 5-1-95) Sec. 6-124. Pouring requirements. No pouring license shall be issued to, or held by, any applicant unless at least 50 percent of the business by volume, when considering the total of sales from alcoholic beverages and food prepared to be consumed on the premises, shall be from the sale of prepared foods to be consumed on the premises. (1) All establishments licensed to pour shall submit a quarterly audit showing the sales of alcoholic beverages and food prepared on the premises and nonalcoholic drinks to the city business license office no later than at the time of renewal for the coming license year. - (2) Authorized officials of the city may examine the records of applicants at any reasonable time to ascertain that the requirements of this section are met. (3) The dining area or serving area of the applicant must have a minimum seating capacity of 40. (Ord. No. 95-03, S 3-2-24, 5-1-95) Sec. 6-125. City officials and employees and family prohibited. It shall be unlawful for any elected city official, full-time appointed city official, any city employee, or the immediate family thereof, to have a license to sell alcoholic beverages in the city. (Ord. No. 95-03, S 3-2-25, 5-1-95) Sec. 6-126. Time limits for obtaining and using. (a) A license must be obtained and fees paid not later than 30 days from the date of the approval of the application by the governing body, and, if not so obtained, the license granted by the governing body shall be void. - 36 ORDINANCE # 2004-27 - (b) A holder of a license must within six months after the issuance of the license open for business the establishment referred to in the license. Failure to do so shall serve as an automatic forfeiture and cancellation of the unused license, unless the holder shall appeal to and be granted an extension by the governing body. No refund of license fees shall be made. (c) A holder of a license who shall begin the operation of the business as authorized in the license, but who shall for a period of three consecutive months thereafter cease to operate the business, shall have automatically forfeited the license. No refund of license fees shall be made. (d) Where a building in which a retailer intends to operate under the provisions of this article is, at the time of the application for such license, not in existence or not yet completed or renovated, a license may be issued for such location, provided the plans for the proposed building show clearly a compliance with the other provisions of this article. No sales or consumption shall be allowed in such establishment until it has been completed in accordance with said plans and is in conformity with all of the other provisions of this article. (Ord. No. 95-03, ~ 3-2-26, 5-1-95) Sec. 6-127. Time limit on reapplication. When an application is denied for cause or any license is revoked for cause by the governing body, it shall be unlawful for the city clerk to accept or for the governing body _ to consider any application for an alcoholic beverage license from the applicant who was previously denied, or from the agent or applicant whose license was previously revoked, within 12 months from the date of application. (Ord. No. 95-03, ~ 3-2-27, 5-1-95) Sec. 6-128. Restriction upon transfers. Licenses shall not be transferable. (Ord. No. 95-03, ~ 3-2-28, 5-1-95) Section 6-129. Mandatory workshop for licensee; mandatory training for permit holders. (a) Licensee policy workshop (1) Effective January 1, 2005, all applicants for an alcoholic beverage license shall attend one alcohol sales and service policy workshop for owners and managers which workshop shall be from a list approved by the city. The applicant shall attend such workshop prior to the issuance of any alcoholic beverage license. Such workshop shall be at the applicant's expense. If at the time the application is considered by the mayor and city - 37 ORDINANCE # 2004-27 council, the applicant has not provided evidence that the applicant has successfully completed the alcohol sales and service training workshop, the application shall be denied. This provision shall not be waived. (2) Effective January 1, 2005, all existing licensees shall have three years in which to provide evidence to the city that the licensee has successfully completed an alcohol sales and service policy workshop. Such workshop shall be from a list approved by the city and shall be at the licensee's expense. In the event that the licensee fails to timely provide evidence of attending such workshop, the alcoholic beverage license shall expire on January I, 2008, and the license shall not be renewed until the city has received evidence from the licensee that the licensee has successfully attended and completed such workshop. This provision shall not be waived. - (b) Training of perm it holders. (I) Effective January 1, 2005, licensees are required to provide information to all permit holders on provisions of the law of this state regarding the sale of alcoholic beverages to intoxicated and underage persons and the penalties for violating such laws.(2) Effective January I, 2005, licensees shall provide regular information and training to all permit holders on the methods, procedures and measures to be taken in order to request, obtain and examine proper identification of patrons to be certain that such patrons are of legal age to purchase alcoholic beverages. (3) Detailed records of such training, including the date, time, persons attending and substance of such training shall be maintained for a minimum of 48 months of the training. Evidence of such training records shall be made available upon request for inspection by the city. - (c) The failure of the licensee to comply with this subsection regarding the attendance at a policy workshop or the training of permit holders may be grounds for due cause to suspend, or revoke the license to sell alcoholic beverages or to place the I icensee on probation as contemplated by Section 6-163 herein. Sees. 6-130--6-140. Reserved. ARTICLE III. FEES AND T AXES* * State Law References: Maximum annual fees for municipal distilled spirits licenses, O.C.G.A. S 3-4-50; malt beverage license fee fixed by municipal goveming authority, O.C.G.A. S 3-5-42; municipal wine license, O.C.G.A. S 3-6-40. - Sec. 6-141. Setting annual license fee; license period; refunds. 38 ORDINANCE # 2004-27 - (a) The annual license fee for each type of license issued under this chapter shall be set by the governing body. (b) No license shall issue for less than a calendar year period, and in case of the revocation or surrender of such license before the expiration of such calendar year period, the holder thereof shall not be entitled to receive any refund whatsoever. (Ord. No. 95-03, ~ 3-4-1,5-1-95) Sec. 6-142. Payment of license fees; amounts. (a) All annual license fees under this article shall accrue on January 1, and shall be paid in advance on or before January 31 of each year. Any new license granted under this chapter during a calendar year shall pay the license fee for the full year. (b) Each person manufacturing or selling alcoholic beverages in the city shall pay an annual license tax as set by the mayor and council and kept on file in the city clerk's office. (c) A person doing business at more than one place shall take out and pay for a separate license for each place of business. ... (d) Any person licensed under this chapter shall be required to renew his license on or before January 31, on forms prescribed by the governing body. Failure to payor renew the license on or before January 31 shall automatically revoke the license. (e) Each retailer shall provide the business license bureau with a statement prepared by hislher bookkeeper or accountant of the gross sales of the business for the preceding calendar year. Copies of the state sales tax returns for the same period shall be attached to the statement. The statement must be properly notarized and certified to be true and correct by the licensee or hislher agent under penalty of law, and shall accompany the basic license fee payment on or before January 31, of each year. The city reserves the right to require, for any reasons deemed necessary by the city, a certified audit of sales of food and drink. (Ord. No. 95-03, ~ 3-4-2,5-1-95) Sec. 6-143. Excise tax upon retail sales of distilled spirits, package only. (a) Annual fee established. An annual fee shall be established by the governing body and kept on file by the city clerk, plus a fee of one percent on gross sales of $100,000.00 to $500,000.00 in addition to the licensing fee shall be levied. - (b) Scope of section. In addition to all other taxes or license fees heretofore or hereafter imposed upon retail dealers engaged in the city in the business of selling alcoholic beverages as defined under the laws of the state, there is imposed and levied upon all dealers within the city described in this section an excise tax, to be computed 39 ORDINANCE # 2004-27 and collected as set forth in this section. (c) Basis for computation of tax. The tax levied under this section shall be computed on the basis of an amount, as set by state law and on file with the city clerk, per liter of distilled spirits sold or delivered as set out in this section; on the basis of an amount, as set by state law and on file with the city clerk, per liter of wine sold or delivered as set out in this section, computed proportionately on fractional size bottles; and an amount as set by state law and on file with the city clerk, per a 12-ounce container case of malt beverage, and other sizes increased in proportion to the 12-ounce size. - (d) Computation, payment; duties of wholesale dealer, distributor. The tax imposed by this section shall be computable and payable monthly. Each wholesale dealer or distributor selling, shipping or delivering alcoholic beverages to any retail dealer in the city, shall, as a condition to the privilege of carrying on the business in the city: (1) Keep true and correct records of all sales, shipments or deliveries of such alcoholic beverages to each retail dealer in the city, such records to be preserved for a period of two years and to be made available on request for inspection of any duly authorized representative of the city. (2) Collect from each such retail dealer in the city at the time of delivery of the alcoholic beverages the amount of tax due under the terms of this section and hold the amount in trust for the city until such amount is remitted to the city as next provided. - (3) On or before the 20th day of each calendar month make a verified and comprehensive report to the city, which shall correctly show all sales and deliveries of alcoholic beverages to or for retail dealers in the city for the month immediately preceding the report. Such report shall show the name and address of each retail dealer, the quantities delivered to each retail dealer, the amount collected under the terms of this section, and such other information as may be called for by the city. Such report shall be accompanied by remittance to the city for all taxes collected or due as shown on the report. There is assessed a ten-percent late charge for failure to remit the excise tax on or before the 20th of the month. (e) Noncompliance by wholesale dealer; distributor. If any wholesale dealer or distributor fails or refuses to make the reports provided for in subsection (d)(3) of this section, the city shall notify the party in writing, and, if the reports are not made and the taxes remitted within five days from date of the notice, the city may withdraw from the wholesale dealer or distributor the privilege of doing business in the city by revoking his/her license. (f) Unlawful retail sales. It shall be a violation of this section for any person to sell at retail within the limits of the city any alcoholic beverages on which the taxes provided for in this section have not been paid. - 40 ORDINANCE # 2004-27 - (g) Unlawful deliveries. It shall be unlawful and a violation of this section for any wholesale dealer or distributor, or other person, to deliver any alcoholic beverages to any retail dealer in the city without collecting the taxes provided for in this section at the time of delivery. (h) Deposit by wholesale dealer or distributor. Each wholesale dealer or distributor who sells alcoholic beverages within the city shall be required to place one month's tax on deposit with the city. The deposit shall be an amount equal to the amount of tax paid by the dealer or distributor during the first 30 days of operation in the city and shall be deposited at the same time as the first payment of tax required by the dealer or distributor by this section. The deposit shall be retained by the city to be applied to make up for any default on the part of the wholesale dealer or distributor and shall be refunded to the wholesale dealer or distributor upon his ceasing to do business in the city, provided the wholesale dealer or distributor is current in his/her remission of taxes. This deposit shall be adjusted each year to be an average of 1/12 of the previous year's tax collections. - (i) Violations and penalties. Any person violating any of the provisions of this section or who shall assist any retail dealer in alcoholic beverages in the city to evade or avoid the payment of the taxes provided for in this section shall be guilty of a violation of this Code and, on conviction thereof in the recorder's [municipal] court, shall be fined or sentenced to the maximum allowed under the law, or both such fine and sentence to be inflicted in the discretion of the municipal court, and such person so convicted shall also be subject to having his/her license revoked. (Ord. No. 95-03, ~ 3-4-3, 5-1-95) Sec. 6-144. Excise tax upon the sale of distilled spirits by the drink. (a) Imposition and rate of tax. There is hereby imposed and levied upon every sale of distilled spirits purchased by the drink in the city a tax in the amount of three percent of the purchase price of the drink. (b) Purchaser's receipt; credit or deferred payment. Every licensee for the sale of distilled spirits by the drink for operation of a place of business in the city shall, at the time of collecting for food and drinks served, give to the purchaser a receipt on which the price of alcoholic beverages served shall be itemized separately and where the charges for food and drink are satisfied by credit or deferred in a like manner. The licensee shall itemize the charges therefor separately on the charge billing at the time and to the extent that such credits are incurred. (c) Person liable for tax. Every licensee or his/her agent is hereby authorized and directed to collect the tax imposed in this section from purchasers of distilled spirits by the drink sold within his/her licensed premises. Such licensee or his/her agent shall furnish such information as may be requested by the business license supervisor to facilitate the collection of this tax. - 41 (5) ORDINANCE # 2004-27 (d) Determinations, returns and payments. (1) Due date of taxes. All taxes collected by any licensee or agent pursuant to the provisions of this section shall be due and payable to the city business license office monthly on or before the 20th day of every month next succeeding each respective monthly period. -- (2) Return; time offiling; persons required toflle; execution. On or before the 20th day of the month following each monthly period, a return for the preceding monthly period shall be filed with the city business license office in such form as the business license supervisor may prescribe for every licensee or agent liable for the payment of tax pursuant to the provisions of this section. (3) Contents of return. All returns shall show the gross receipts from the sale of distilled spirits by the drink, amount of tax collected or due for the related period, and such other information as may be required by the business license supervisor. ( 4) Delivery 0.(" return and remittance. The person required to file the return shall deliver the return, together with the remittance of the net amount of tax due to the business license office of the city. Collection fee allowed operators. Operators collecting the tax shall be allowed a percentage of the tax due and accounted for and shall be reimbursed in the form of a deduction for submitting, reporting and paying the amount due, if the amount is not delinquent at the time of payment. The rate of deduction shall be in the same rate authorized for deduction from state tax under the state retailers' and consumers' sales and use tax act, approved February 20, 1951 (Ga. Law, p. 360) (O.C.G.A. ~ 48-8-1 et seq.), as now or hereafter amended. -- (e) Deficiency determinations. (1) Recomputation 0.1 tax; authority to make basis 0.(" recomputation. If the business license supervisor is not satisfied with the return of the tax or the amount of tax to be paid to the city by any licensee he/she may compute and determine the amount required to be paid upon the basis of any information within hislher possession or that may come into his/her possession. Deficiency determinations may be made of the amount due for one or more monthly periods. (2) Interest on deficiency. The interest on the amount of the deficiency determination, exclusive of penalties, shall bear interest at the rate of one percent per month. Interest shall be assessed for each month or fraction thereof from the close of the monthly period in which the amount or any - 42 (3) - ORDINANCE # 2004-27 portion thereof should have been returned until the date of payment. Offsetting of overpayments. In making a determination, the business license supervisor may offset overpayments, for a period or periods, against underpayments, for another period or periods against penalties and against the interest on underpayments. The interest on overpayments shall be computed in the manner set forth in this subsection. (4) Penalty; negligence or disregard of rules and regulations. If any part of the deficiency for which a deficiency determination has been made is due to negligence or disregard of rules and regulations, a penalty amount of ten percent per month shall be added to the amount of the deficiency. (5) Penalty for fraud or intent to evade. If any part of the deficiency for which a deficiency determination has been made is due to fraud or an intent to evade any provisions of this article or other authorized rules and regulations, a penalty of 25 percent of the deficiency shall be added thereto. (6) - - Time within which notice of deficiency determination to be mailed. Except in the case of fraud, intent to evade this article or other authorized rules and regulations, or failure to make a return, every notice of a deficiency determination shall be mailed within three years after the 20th day of every month following the monthly period for which the amount is proposed to be determined, or within three years after the return is filed, whichever period should last expire. (f) Determination ifno return is made. (1) Estimate of gross receipts. If any licensee fails to make a return, the business license supervisor shall make an estimate of the amount of the total sales in the city, which are subject to the tax. The estimate shall be made for the period or periods in respect to which the licensee failed to make the return and shall be based upon any information, which is in or may come into the possession of the business license supervisor. Upon the basis of this estimate, the business license supervisor shall compute and determine the amount required to be paid the city, adding to the sum thus determined a penalty of 15 percent thereof. One or more determinations may be made for one or for more than one period. (2) Manner of computation; offsets; interest. In making a determination, the business license supervisor may offset overpayments for a period or penalties against the interest on the underpayments. The interest on underpayments shall be computed at one percent per month. (3) Interest on amount found due. The amount of the determination, exclusive 43 ORDINANCE # 2004-27 of penalties, shall bear interest at the rate of one percent per month. Interest shall be assessed for each month, or fraction thereof, from the last day of the month of the quarterly period for which the amount or any portion thereof should have been returned until the date of payment. - (4) Penalty forfraud or interest to evade. If the failure to file a return is due to fraud or an intent to evade this article or other rules and regulations, penalties assessed at 25 percent of the deficiency shall be added thereto. (5) Giving of notice; manner of service. Promptly after making the determination, the business license supervisor shall give to the person written notice to be served personally or by mail in the manner prescribed for service of notice of a deficiency determination. (g) Penalties and interest for failure to pay tax. Any licensee who fails to pay the tax imposed in this section to the city, or fails to pay any amount of such tax required to be collected and paid to the city, within the time required, shall pay a penalty of ten percent per month of the tax, or amount of the tax, plus interest on the unpaid tax or any portion thereof (2) (h) Collection of tax. (1) Notice of delinquency to persons holding credits or property (~l delinquent; time for; duty of persons so notified. If any person is delinquent in the payment of the amount required to be paid by him/her or if a determination has been made against him/her which remains unpaid, the business license supervisor may, not later than three years after the payment became delinquent, give notice thereof by registered mail to all persons in the city having in their possession or under their control any credits or other personal property belonging to the delinquent, or owing any debts to the delinquent. After receiving the notice, the persons so notified shall neither transfer nor make any other disposition of the credits, other personal property or debts in their possession owed by them, or under their control at the time they receive the notice until the business license supervisor consents to a transfer or disposition or until 20 days elapse after the receipt of the notice. All persons so notified shall, within five days after the receipt of the notice, advise the city of all these credits, other personal property, or debts in their possession, under their control or owing by them. - Actionfor tax; time for. At any time within three years after any tax or any amount of tax at any time within three years after the delinquency of any tax or any amount of tax required to be collected, the business license supervisor may bring an action in the courts of this state, or of the United States in the name of the city to collect the amount delinquent, together with penalties and interest, court fees, filing fees, attorney's fees and other - 44 ORDINANCE # 2004-27 legal fees incident thereto. - (3) Duty of successors or assignees of operator to withhold tax from purchase money. If any operator liable for any amount under this article sells out his/her business or quits the business, his/her successors or assignees shall withhold a sufficient amount of the purchase price to cover such amount until the former owner produces a receipt from the city showing that the city has been paid or a certificate stating that no amount is due. (4) Liability for failure to withhold; certificate of notice of amount due; time to enforce successor's liability. If the purchaser of a business fails to withhold the purchase price as required, he/she becomes personally liable for the payment of the amount required to be withheld by him/her to the extent of the purchase price, valued in money. Within 30 days after receiving a written request from the purchaser for a certificate, the business license supervisor shall either issue the certificate or mail notice to the purchaser at his/her address as it appears on the records of the city of the amount that must be paid as a condition of issuing the certificate. (i) Administration. (1) Authority of business license officer. The business license officer shall administer and enforce the provisions of this article for the levy and collection of the tax imposed by this article. .. (2) Rules and regulations. The business license officer shall have the power and authority to publish reasonable rules and regulations as approved by the mayor and council of the city for the administration and enforcement of the provisions of this article and the collection of the taxes pursuant to the provisions of this article. (3) Records required for operators, etc.; form. Every licensee in the city for the sale of alcoholic beverages by the drink to a person shall keep such records, receipts, invoices and other pertinent papers in such form as the business license supervisor may require. (4) Examination of records; audit. The business license supervisor or any person authorized in writing by the supervisor may examine the books, papers, records, financial reports, equipment and other facilities of any licensee liable for the tax, in order to verify the accuracy of any return made, or if no return is made by the licensee, to ascertain and determine the amount required to be paid. (5) Authority to require reports; contents. In the administration of the provisions of this article, the business license supervisor may require the filing of reports by any person or class of persons having in such person's - 45 ORDINANCE # 2004-27 or persons' possession or custody information relating to sales of alcoholic beverages which are subject to any tax. The reports shall be filed with the business license supervisor when required by the supervisor and shall set forth the price charged for each sale, the dates of sales and such other information as the business license supervisor may require. - (6) Disclosure of business operators, etc.; limitations on rules. The business license supervisor or any person having an administrative duty under this article shall not make known in any manner the business affairs, operations or information obtained by an audit of books, papers, records, financial reports, equipment or other facilities of any licensee or any other person visited or examined in the discharge of official duty, or the amount of source income, profits, losses, expenditures or any particular thereof, set forth or disclosed in any return, or to permit any return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person not having such administrative duty under this article, except in the case of judicial proceedings or other proceedings necessary to collect the tax hereby levied and assessed. Such confidential records shall not become the records of the city so as to become subject to the open records act. Successors, receivers, trustees, executors, administrators and assignees of the owner or operator, if directly interested, may be given information as to the items included in the measure and amount of unpaid tax or amounts of tax required to be collected, interest and penalties. - (j) Revocation of license. The continuous failure to pay the tax prescribed in this section shall render the dealer or person liable therefor subject to revocation of their alcoholic beverage licensees) in accordance with the procedures set out in this chapter. (Ord. No. 95-03, S 3-4-4, 5-1-95; Ord. No. 2003-17, 5-19-03) Sees. 6-145--6-160. Reserved. ARTICLE IV. ENFORCEMENT Sec. 6-161. Compliance with chapter. (a) It shall be unlawful for any person to sell or offer for sale at wholesale or retail any alcoholic beverages without having first complied with the provisions of this chapter. (b) The police department or its designee shall from time to time visit licensed premises and determine compliance with this chapter. (Ord. No. 95-03, S 3-5-1, 5-1-95) - 46 ORDINANCE # 2004-27 Sec. 6-162. Criminal penalties for violation of chapter; administrative actions. - (a) Alleged violations of this chapter may be cited to any court as provided by law and ordinance. Convictions under this chapter shall be punishable in the municipal court by a fine not to exceed $1,000.00 or imprisonment for 60 days, or both. Convictions may be considered due cause for suspension or revocation of any license by the governing authority. (b) The governing authority may take administrative action under this chapter, including license suspension or revocation independent of court citations or the lack thereof, and independent of the disposition or lack of disposition thereof. Sec. 6-163. Suspension and revocation of license by the governing authority. - (a) Hearing required; due cause prerequisite. No license which has been issued or which may hereafter be issued by the city to any agent of or any person, partnership, corporation, retail dealer, for sale of any type of alcoholic beverages shall be suspended or revoked, except for due cause as defined in subsection (c) of this section and after a hearing requiring the licensee to appear and show cause to the mayor and council of the city why such license should not be suspended or revoked. At any such hearing, all parties to the hearing shall be entitled to be represented by counsel and shall be entitled to all subpoena powers provided by this Code or the city Charter, together with the right to examine all such witnesses under oath. (b) Notice of hearing. Notice in writing by the city clerk addressed to the holder of such license stating the time, place and purpose of such show-cause hearing and a statement of the accusation upon which such hearing shall be held shall be delivered to the licensed location. Not less than three nor more than 20 days' notice of such hearing shall be deemed reasonable notice. However, shorter or longer periods shall be authorized as the mayor and council determine that the circumstances justify. Upon application in writing by the license holder, any witness or any party at interest, showing good cause and not for purposes of delay only, the hearing date may be advanced or continued, in which event no further notice shall be required in writing. (c) Definition. The expression "due cause" for the suspension or revocation of such license shall include, but not be limited to: (1) The violation of any provision of this chapter by the license holder, partner, officer, director, principal stockholder (who owns more than five percent ownership) or any employee engaged in the sale of alcoholic beverages. (2) The violation by the license holder, partner, officer, director, principal stockholder (who owns more than five percent ownership) or any employee engaged in the sale of alcoholic beverages, of any state law or regulation, any county ordinance or regulation, or any other ordinance, - 47 ORDINANCE # 2004-27 regulation or law regulating such businesses, or violation of any regulation made pursuant to authority granted for the purpose of regulating such business, or for the violation of any law of the United States of America, except misdemeanor traffic violations by the above-named persons, corporation or entity; - (3) The Licensee providing false information regarding or the omitting any material fact affecting the license application or any supplemental information required during the term of the license. (4) The sale or offer of sale of any alcoholic beverage to any minor, as defined and prohibited by the laws of the state, or to any person under the age of 21 years; or (5) The violation of any condition of probation given to a licensee under Section F herein. (6) When the sale of alcoholic beverages at any location shall become a nuisance as defined by State Law.; (d) Refund of license fee. In the event of revocation or suspension by the mayor and council, the licensee shall not be entitled to a refund or return of any portion of the license fee. (e) Provisions cumulative. The remedies and actions provided in this article, including but not limited to the suspension or revocation of the license, shall be cumulative, in addition to and nonexclusive of any other action, civil or criminal, pending, resolved or threatened, regarding the license, location, owner of the business or licensee. (f) Authority to suspend or revoke and/or place on probation. At any show- cause hearing, based upon the evidence presented, the mayor and council shall be authorized to suspend such license for any appropriate time, or to permanently revoke such license. In addition to or in lieu of the suspension or revocation, the mayor and council may place the licensee on probation for a period not to exceed five years and may place conditions upon such probation. - (g) If at the hearing, there is evidence of a violation (involving a minor), the mayor and council may consider the circumstances of the incident in order to determine whether a mitigation is warranted. Such factors include but are not limited to the following: 1.) Whether the Licensee has instituted a policy designed to effectively reduce alcohol sales to minors and whether the policy is written. 2.) The nature of such policy and the manner in which it IS communicated to employees, administered and followed. 3.) The type of employee training done in furtherance of the policy - 48 ORDINANCE # 2004-27 - and whether such training is mandatory for all employees. 4.) The effectiveness of such policy and training. 5.) Whether the age of all customers purchasing or attempting to purchase alcohol is routinely verified prior to sale. 6.) Whether the Licensee completed a responsible alcohol sales and service policy workshop. 7.) The type of offense. 8.) The number or frequency of violations under the license or at the subject location and the nature of such previous violations. (h) Provision of schedule. The governing body may from time to time provide for a schedule prescribing the length of suspensions, revocation, or other penalties as it may determine appropriate to the nature of the offense, the person committing the offense, and other such factors as it may deem appropriate. Such schedule shall be on file with the city clerk. (Ord. No. 95-03, S 3-5-3, 5-1-95) Sec. 6-164. Automatic revocation of city license upon revocation of state license. Whenever the state shall revoke any permit or license to manufacture or sell at wholesale or retail any alcoholic beverages, the city license to manufacture or deal in such products shall thereupon be automatically revoked without any action by the mayor or governing body. (Ord. No. 95-03, S 3-5-4, 5-1-95) - Sec. 6-165. Removal of signs after revocation. When any license for selling alcoholic beverages is revoked, all signs indicating that such beverage may be sold or purchased shall be removed from the place of business, both outside and inside. Upon receipt by the police department of notice of such revocation, the police department shall take the necessary steps to see that this section is enforced. (Ord. No. 95-03, 9 3-5-5, 5-1-95) - 49 ORDINANCE # 2004-27 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 Ordinance 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 2nd day of August, 2004. Attest: A. Max Bacon, Mayor ~:/'r/-/ /1V D. )(0fC0--- Susan D. Hiott, City Clerk City of Smyrna Approved as to form: - ~ Scott A. Cochran, City Attorney City of Smyrna - 50