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02072005 February 7, 2005 February 7, 2005 .. The regular scheduled meeting of Mayor and Council was held at Smyrna 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 except Council Member Scoggins. Also present were City Administrator Wayne Wright, Deputy City Clerk Lee Miller, City Attorney Scott Cochran, and representatives of the press. Invocation was given by Pastor Calvin Tibbs from International Gospel Outreach Church, followed by the pledge to the flag. AGENDA CHANGES: Mayor Bacon stated that agenda item lOA (Alcoholic Beverage Violation - SaveRite #2708 _ 2350 Spring Road - Andrew Todd Smith, Agent) will be tabled until the March 7, 2005 council meeting. MAYOR'S REPORT: Mayor Bacon recognized School Board Representative Curt Johnston, and Mr. Johnston introduced Principal Terry Floyd and students from Belmont Hills Elementary School to those present. The students presented this month's character education words to those present. - Mayor Bacon recognized Mr. David Fanner, and Mr. Fanner expressed appreciation to Randy Cannichael and the associates of the S. P. Richards Company for their support of the City police department's benevolent association and the association's efforts on behalf of the community. Mr. Fanner stated some of the beneficiaries of last year's efforts during the holiday season included the families of reservists ofNAS Atlanta and many local children. Council Member Lnenicka commended Mr. Fanner for recently receiving the Lifetime Achievement Award from Campbell High School, and thanked him for his service to the community as a police officer and as a private citizen. LAND ISSUES/ZONING/ANNEXA nON: (A) Public Hearing - Variance Request V05-003 - Reduction in Side Yard Setback - 1263 Daniell Drive - Travis Sanchez Mr. Wright stated the applicant wishes to build an addition to the dwelling at the subject address. Mr. Wright stated the residence is in an R-15 zoned area, and that the zoning regulations require a minimum side yard setback of 10.' Mr. Wright stated the applicant is requesting a reduction of the side yard setback to 7.5' to accommodate the addition. Mr. Wright stated that staff recommends approval of the variance provided the remodeled structure confonns to the site plan furnished with the application. Mayor Bacon stated this is a public hearing and asked for public comment. There was none. The oath was administered to Mr. Sanchez by Mr. Cochran. - Mr. Sanchez stated he plans to convert an existing covered patio into additional living space, and that he needs the setback reduction to accommodate the proposed addition. Februarv 7, 2005 2 MOTION: Council Member McNabb made a motion to approve Variance Request V05-003 for a reduction in side yard setback at 1263 Daniell Drive for Travis Sanchez. The motion was seconded by Council Member Newcomb. Motion was approved 6 - O. - (B) Public Hearing - Variance Request V05-004 - Reduction in Front Yard Setback - 845 Timberland Street - Gary Stire Mr. Wright stated the applicant has requested a reduction in the front yard setback at the subject residence from the required 35' to 29' to accommodate construction of a front porch. Mr. Wright stated that staff recommends approval of the variance provided the front porch conforms to the site plan and description furnished with the application. Mayor Bacon stated this is a public hearing and asked for public comment. There was none. The oath was administered to Mr. Stire by Mr. Cochran. Mr. Stire stated the homeowner wishes to build a front porch to replace the existing stoop and sidewalk. Council Member Smith asked Mr. Stire to provide details to those present regarding the method of construction planned for the porch addition. Mr. Stire stated the porch will have a concrete foundation with two pillars and a shingle roof. MOTION: Council Member Smith made a motion to approve Variance Request V05-004 for reduction in front yard setback at 845 Timberland Street for Judy Iberg. The motion was seconded by Council Member Wood. Motion was approved 6 - O. (C) Public Hearing - Approval of Three-Month Moratorium regarding acceptance of Plat Applications for Development within the Pretty Branch Creek Drainage Basin Study Area - Mr. Wright stated the drainage infrastructure in the Pretty Branch Creek drainage basin is presently undergoing evaluation, and that it is therefore advisable to temporarily limit development in that location. Mr. Wright stated the proposed three-month moratorium affects new subdivisions only when there is no rezoning connected with the creation of the subdivision. Mr. Wright stated the moratorium applies only to development that would partially or totally exist within the Pretty Branch Creek drainage basin. Mayor Bacon stated this is a public hearing and asked for public comment. There was none. MOTION: Council Member Newcomb made a motion to approve a three-month moratorium on acceptance of plat applications for development not approved through rezoning within the Pretty Branch Creek drainage basin study area. The motion was seconded by Council Member Pritchett. Motion was approved 6 - O. (D) Public Hearing - Approval of Three-Month Moratorium regarding acceptance of Applications for Signs in excess of 250 Square Feet Mr. Wright stated that staff is currently in the process of revamping the City's sign ordinance in response to recent legal actions. Mr. Wright stated the requested moratorium period will provide time to complete and implement the ordinance revisions. Mayor Bacon stated this is a public hearing and asked for public comment. There was none. - February 7, 2005 3 MOTION: Council Member Newcomb made a motion to approve a three-month moratorium on acceptance of applications for signs in excess of 250 square feet. The motion was seconded by Council Member Pritchett. Motion was approved 6 - O. - PRIVILEGE LICENSE: (A) Public Hearing - Privilege License Request - Massage Therapist - Evene Day Spa - 400 Village Green - Saadat Masoudi, Applicant Mr. Wright stated that staff has reviewed the submitted application materials and found them to be in order. Mr. Wright stated that inquiry by the City police department has disclosed no information which would preclude issuance of the requested license. Mayor Bacon stated this is a public hearing and asked for public comment. There was none. Council Member Wood asked Ms. Masoudi if it is correct that she will not personally be administering any massages at the establishment. Ms. Masoudi stated she is a skin care esthetician, but that another individual with appropriate training will be on the premises to administer massage therapy. MOTION: Council Member Wood made a motion to approve a privilege license request for massage therapist for Evene Day Spa at 400 Village Green for Saadat Masoudi. The motion was seconded by Council Member Smith. Motion was approved 6 - O. FORMAL BUSINESS: - (A) Appointment of Ward 6 Representative to the Parks and Recreation Commission MOTION: Council Member Lnenicka made a motion to appoint Ashley Willoughby, residing on Belridge Drive, as the Ward 6 Representative to the Parks and Recreation Commission. The motion was seconded by Council Member Wood. Motion was approved 6 - O. COMMERCIAL BUILDING PERMITS: There were none. CONSENT AGENDA: (A) Approval of January 18,2005 Minutes (B) Approval of Use of Council Chambers by the Creatwood at Vinings HOA for the HOA annual meeting on Sunday, February 20,2005 from 5:30 p.m. to 9:00 p.m. (C) Approval to Advertise for the Abandonment of Section of Unused Right-of-Way (ROW) near North Avenue - The City has received a request from New Smyrna Properties, LLC (NSP) to abandon a section of unused alleyway near North Avenue. The management ofNSP intend to incorporate the property into a proposed development if such property is ceded by the City. Posting this property with a sign indicating that this request will be scheduled for consideration by the city council at the Febmary 21, 2005 council meeting is proposed. February 7, 2005 4 (D) Revision of City of Smyrna Personnel Policies and Procedures In order to comply with changes in the law and to maintain proper personnel policies, the Human Resources Department, with guidance from GIRMA attorneys Elarbee, Thompson, Sapp & Wilson recommend revision of the following City Personnel Policies and Procedures: (18) Family and Medical Leave, (19) Family and Medical Leave, (19) Miscellaneous Leave [Funeral, Jury/Court, Leave of Absence, Military] and (20) Sick Leave. - (E) Approval of Selection of a Design Firm for the Atlanta Road LCI Streets cape Project The City issued an RFQ for the Atlanta Road LCI Streetscape Project in December of 2004. A total of eleven consultants submitted qualifications packages. The total budget for the Atlanta Road LCI Streetscape Project is $ I ,805,800 of which $36 I, I 60 is the City's local match. Based upon the consultant's experience with LCI related projects and streetscapes, approach to the project and public involvement plan staff recommends AL T AlVlIRA to assist the City with the Atlanta Road Streetscape Project. (F) Approval to Transfer Contingency Funds At the December 20, 2004 meeting, Mayor and Council approved the purchase of the Presley House, 58 I I Oakdale Road, which was used as a hospital during the battle of Atlanta. The property was acquired in order to preserve the land and structure until the City can arrange for a historical preservation organization to purchase the house and restore it for posterity. Staff recommended the purchase of the house using contingency funds provided that the appraisal indicates the value of the property is commensurate with the proposed purchase price. The house was purchased during December 2004 for $ I 46, I 93. I 3. Transferring contingency funds in the amount of $ I 46, I 93. I 3 to Parks and Recreation 62200.54 I I is recommended. -- (G) Approval of Use of Council Chambers by the Heights at Spring Road HOA for the HOA meeting on Thursday, February 24,2005 at 7:30 p.m. Council Member Wood made a motion to approve the consent agenda. The motion was seconded by Council Member Smith. Motion was approved 6 - o. COMMITTEE REPORTS: Council Member Pritchett yielded the floor with no report. Council Member Newcomb yielded the floor with no report. Council Member McNabb commented favorably on those residents who are making improvements to their homes and thereby enhancing the overall appeal of the community. Council Member Smith yielded the floor with no report. Council Member Lnenicka yielded the floor with no report. Council Member Wood yielded the floor with no report. SHOW CAUSE HEARINGS: - February 7. 2005 5 (A) Alcoholic Beverage Violation - SaveRite #2708 - 2350 Spring Road - Andrew Todd Smith, Agent - MOTION: Council Member Newcomb made a motion to table the show cause hearing for SaveRite #2708 at 2350 Spring Road for Andrew Todd Smith, agent until the March 7, 2005 council meeting. The motion was seconded by Council Member Pritchett. Motion was approved 6-0. (B) Alcoholic Beverage Violation - The Timbers - 730 Concord Road - John C. Driscoll, Agent Mr. Wright stated that on December 7,2004, at approximately 6:40 p.m., a plain clothes City police officer and a 16 year old informant entered the subject establishment and the informant was able to purchase a draft beer. Mr. Wright stated the informant was not asked to present identification at the point of sale before leaving the establishment. Mr. Wright stated the offending server did ask the officer for identification after the informant departed. Mr. Wright stated this is the first known offense for this location under the direction of the present agent. The oath was administered to at least two persons by Mr. Cochran. - Mr. Cochran recognized Ofc. Maloney, and Ofc. Maloney stated that on December 7, 2004, at approximately 6:40 p.m., a plain clothes City police officer and a 16 year old informant entered The Timbers (TB) at 730 Concord Road. Ofc. Maloney stated the server, identified as Anna Marie Jones, served beer to the informant and to the officer. Ofc. Maloney stated the server did not require the informant to present identification before serving beer to the informant. Mr. Cochran asked Mr. Driscoll if he wishes to ask Ofc. Maloney any questions, and Mr. Driscoll said no. Mayor Bacon asked Ofc. Maloney if TB has been the subject of any complaints of sales of alcoholic beverages to underage persons, and Ofc. Maloney said no. Mr. Driscoll stated efforts have been made at TB to train serving staff to require identification from patrons attempting to purchase alcoholic beverages. Mr. Driscoll stated Ms. Jones was recently hired, and that a power outage at TB around the time of this incident may have been a distraction to the staff. Mr. Driscoll showed those present a sign he has posted at various locations inside TB to remind the staff to check identifications of patrons attempting to purchase alcoholic beverages. Mr. Driscoll stated staff members are now required to sign a copy of this notice to acknowledge that they understand the policies at TB for alcoholic beverage sales. Mr. Driscoll expressed regret that such an incident occurred at TB. Mr. Driscoll stated a member of the TB management staff conducts alcoholic beverage sales training for TB servers. MOTION: Council Member McNabb made a motion to adjourn into executive session. The motion was seconded by Council Member Smith. The motion was approved 6 - O. (Clerk's Note: Executive session commenced at 8:14 p.m.) MOTION: Council Member Wood made a motion to adjourn from executive session and to reconvene the public meeting. The motion was seconded by Council Member Newcomb. The motion was approved 6 - O. (Clerk's Note: Executive session concluded at 8: 18 p.m.) - MOTION: Council Member McNabb made a motion to approve a disposition for the alcoholic beverage violation at The Timbers at 730 Concord Road for John C. Driscoll, agent, to include probation for a period of twelve months for the privilege license for alcoholic beverage sales for the establishment. Council Member McNabb stated that, as an additional requirement of the disposition, both the owner and the agent must complete the responsible alcoholic beverage sales February 7, 2005 6 and service class as presented by Evindi, Inc. by April 30, 2005 with proof of course completion to be furnished to the City Clerk's office. The motion was seconded by Council Member Newcomb. Motion was approved 6 - O. - (C) Alcoholic Beverage Violation - Wings Fiesta - 2500 South Cobb Drive #C - Myung Sook Seo, Agent Mr. Wright stated that on December 7, 2004, at approximately 7:23 p.m., Ofc. Defense and a 17 year old informant entered the subject establishment and the informant was able to purchase a bottle of beer. Mr. Wright stated the informant was not asked to present identification at the point of sale. Mr. Wright stated this is the first known offense for this location. Mayor Bacon recognized Mr. Richard Litwin, an attorney representing the applicant. The oath was administered to several persons by Mr. Cochran. Mr. Cochran recognized Ofc. Maloney, and Ofc. Maloney stated that on December 7,2004, at approximately 7:23 p.m., Ofc. Defense and a 17 year old informant entered Wings Fiesta (WF) at 2500 South Cobb Drive. Ofc. Maloney stated the informant was able to purchase a bottle of beer there from a server identified as Elba Martinez. Ofc. Maloney stated the informant was not required to present identification at the point of sale. Mayor Bacon asked Ofc. Maloney if WF has been the subject of any complaints of sales of alcoholic beverages to underage persons, and Ofc. Maloney said no. Mayor Bacon asked Ofc. Maloney if WF has been the subject of any other complaints. Ofc. Maloney stated the City police department has responded to numerous calls at WF, including disorderly conduct, assault and at least one complaint regarding controlled substances. - Mr. Litwin stated that steps have been taken to help make certain that there is no recurrence of this type of incident at WF. Mr. Litwin stated that last Saturday a trainingfor intervention procedures (TIPS) class was conducted at the establishment for at least seven WF personnel. Mr. Litwin stated a Spanish language translator was present during the instruction for the benefit of WF staff members who speak that language. Mr. Litwin presented a copy of the registration certificate for the TIPS class for examination by the present officials. Mr. Litwin provided additional details concerning the TIPS class to those present. Mr. Litwin stated that signs in both English and Spanish have been posted at WF to notify staff and customers of the policies for dispensing alcoholic beverages at the establishment. Mr. Litwin provided details to the present officials concerning the private security arrangements in place at WF. Mr. Litwin provided a copy of a recent Health Department inspection report for examination by the present officials indicating WF is maintained in a high state of cleanliness. Mr. Litwin asked the mayor and council members to take the mitigating factors he has presented into account when considering this matter. Council Member Smith asked what steps are taken to train WF employees to sell alcoholic beverages in a responsible and lawful manner, and Mr. Litwin made reference to the recent TIPS class. Council Member Smith asked ifthe private security personnel at WF check for identifications. Mr. Litwin stated it is his understanding that the private security personnel at WF check identifications at the door on weekends when it is busy. Council Member Newcomb asked Ofc. Maloney if, based on his observations during visits to WF, food sales appear to be the primary part of that establishment's business. Ofc. Maloney stated he has seen mostly beer bottles on the tables at WF on the occasions he has been at that establishment during business hours. Mayor Bacon stated the City's alcoholic beverage ordinance requires establishments which serve alcoholic beverages to derive a majority oftheir business volume from food sales, and that compliance with this directive must be substantiated with periodic audit reports. - February 7, 2005 7 - Council Member Lnenicka asked Ofc. Maloney if the offending server in this case had a valid server's permit, and Ofc. Maloney said no. Mr. Litwin stated the offending server had been employed at WF for only four days at the time of the incident. Council Member Lnenicka asked Mrs. Seo how many hours per week she works at WF, and Mrs. Seo stated she works more than 40 hours every week. Council Member Lnenicka stated he is disturbed by a number of allegations which have been raised during this hearing, such as drug use and over-consumption of alcohol by persons on the premises of WF, as well as allegations of other forms of misconduct. Council Member Lnenicka stated the management of WF has a responsibil ity to maintain control of their business premises to make certain that unsafe behavior and misconduct is not allowed to occur there. Council Member Lnenicka admonished Mr. Litwin to counsel his client to help make certain that these unfavorable conditions at WF are corrected and not allowed to continue. Mr. Litwin stated he was not previously aware of the drug use at WF which is alleged by Ofc. Maloney. Council Member Smith asked how many people are usually at WF during peak evening hours. Ofc. Maloney stated another police officer who works part-time at WF advised him that when a local band played there recently, the establishment was completely filled with people with others lined up outside waiting to enter. MOTION: Council Member Newcomb made a motion to adjourn into executive session. The motion was seconded by Council Member McNabb. The motion was approved 6 - O. (Clerk's Note: Executive session commenced at 8:57 p.m.) MOTION: Council Member McNabb made a motion to adjourn from executive session and to reconvene the public meeting. The motion was seconded by Council Member Wood. The motion was approved 6 - O. (Clerk's Note: Executive session concluded at 9:06 p.m.) - MOTION: Council Member Smith made a motion to approve a disposition for the alcoholic beverage violation at Wings Fiesta at 2500 South Cobb Drive #C for Myung Sook Seo, agent, to include probation for a period of twelve months for the privilege license for alcoholic beverage sales for the establishment. Council Member Smith stated that as a condition of the disposition, all servers at the establishment are required to obtain suitable identification from all persons attempting to purchase alcoholic beverages during the probation period. Council Member Smith stated that, as a further condition of the disposition, the agent must furnish a copy of a certified audit detailing food and alcohol sales at Wings Fiesta by March 7, 2005 to the City Clerk's office. Council Member Smith stated that, additionally, the agent must complete the responsible alcoholic beverage sales and service class as presented by Evindi, Inc. by May 7, 2005 with proof of course completion to be furnished to the City Clerk's office. The motion was seconded by Council Member Newcomb. Mr. Cochran stated the requirements specified by Council Member Smith are conditions of the probation for the privilege license for alcoholic beverage sales for the establishment, and that the audit, training and other requirements are mandatory. Council Member Lnenicka asked Mr. Litwin ifhis client will accept the conditions of the disposition, and Mr. Litwin answered in the affirmative. Motion was approved 6 - O. CITIZENS INPUT: There was none. - February 7. 2005 ADJOURNMENT: With no further business, the meeting was adjourned at 9: 14 p.m. A. MAX BACON, MAYOR ~~,l~~~ ~/~ , .. .. ~ .. t'~ '- ILL SCOGGIN ARD 3 ~/ r?~ id,.; ~ CHARLES PE. \ViOOD, WARD 7 \.~J~ 'Zk~ IJt {lJt MIC EL McNABB, A 4 8 - ---- - .- 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 7th day of February, 2005. (2) That it is my understanding that O.c.G.A. S50-14-4(b) provides as follows: When any meeting of an agency is closed to the public pursuant to subsection (a) of this Code section, the chairperson or other person presiding over such meeting shall execute and file with the official minutes of the meeting a notarized affidavit stating under oath that the subject matter of the meeting or the closed portion thereof was devoted to matters within the exceptions provided by law and identifying the specific relevant exception. (3) The subject matter of the closed meeting or closed portion ofthe meeting held on the 7th of February, 2005 which was closed for the purpose(s) of discussion oflegal matters as allowed by a.c.G.A., Title 50, Chapter 14, was devoted to matters within those exceptions and as provided by law. (4) This affidavit is being executed for the purpose of complying with the mandate of O.C.G.A. S50-14-4(b) that such an affidavit be executed. - day of February. 2005. //#-- This 7th Mayor/Presiding Officer Sworn to and subscribed before me This 7th day of February. 2005. Ilt7 /1' ) J j !A,Ki. /i-'v'YC<C / /'-/, '" 11' '~' v - II No ary Public ",'~'~,~~.,?~f!/"',,_ ..' ,\.)". "','" ,) ,~. ~ c::r." . . '. 'r....," l,~- f / ~... ...~ Y' \ ; t c~~=>~.__,_. \. j ~ \. \. c~:; 2. :=::r./ f -:. Q ~~ J ,." '""'")1" \\) ~... .......... -:"." () ~IL~~.:~,~::~."e"" ~..~...<" ",..;;;3 C;j'v\~\,~," ///11111 ill \ \ ,II Re: The Timbers - AFFIDA VIT - Personally appeared before the undersigned attesting officer, duly authorized to administer oaths, Mayor A. Max Bacon, who after being duly sworn, deposes and on oath states the following: (1) I was the presiding officer of a meeting of the Mayor and Council held on the 7th day of February, 2005. (2) That it is my understanding that O.C.G.A. ~50-14-4(b) provides as follows: When any meeting of an agency is closed to the public pursuant to subsection (a) of this Code section, the chairperson or other person presiding over such meeting shall execute and file with the official minutes of the meeting a notarized affidavit stating under oath that the subject matter of the meeting or the closed portion thereof was devoted to matters within the exceptions provided by law and identifying the specific relevant exception. (3) The subject matter of the closed meeting or closed portion of the meeting held on the 7th of February, 2005 which was closed for the purpose(s) of discussion of legal matters as allowed by a.c.G.A., Title 50, Chapter 14, was devoted to matters within those exceptions and as provided by law. (4) This affidavit is being executed for the purpose of complying with the mandate of O.C.G.A. ~50-14-4(b) that such an affidavit be executed. - This 7th day of February. 2005. /~ Mayor/Presiding Officer Sworn to and subscribed before me This 7th day of February. 2005. I, i ,/~' / l /) (1"" ) , VVv(;"':"/ (,.,') \ -~'- \ Notary Public t.,-! L.. - Re: Wings Fiesta \.\\\,.\~i, . T "..., ,. r /' ;' ,.' , .>..::~ :: '^'o_, \....-\~ ., 0'J~ . _ ::: c''''..;:l : :: ~~." :<:,': 9, 2CJ1 ..../ } "::,. '-.f "~.~.,,!~~ LIe ...... ~ ", ....... 'v' ~,.","'." '\ ...' "'/1" C:"U u ~'~ \ ,,,,,,,, . 'I'll i I j I: I 111\\\\'