December 11, 2012 Minutes
CITY OF DENTON CITY COUNCIL MINUTES
December 11, 2012
After determining that a quorum was present, the City Council convened in 2nd Tuesday Session
on Tuesday, December 11, 2012 at 4:00 p.m. in the City Council Work Session Room at City
Hall.
PRESENT: Council Member Engelbrecht, Council Member Watts, Council Member King,
Mayor Pro Tem Kamp, Council Member Gregory, Council Member Roden
ABSENT: Mayor Burroughs
1. Receive a report, hold a discussion, and give staff direction regarding the
recommendation of Ad-Hoc Citizen Advisory Committee on Smoking Regulations to
City Council on a draft smoking ordinance.
Lindsey Baker, Assistant to the City Manager, presented the members of the Committee. The
charge of the Committee was to (1) consider and advise the Council in what manner to revise the
current provisions of the smoking ordinance, (2) recommend which, if any, exceptions should be
included in a comprehensive smoking ban ordinance, (3) recommend definitions for public
places, workplaces, and other locations as deemed reasonable by the members of the Committee,
and (4) draft definitions and exceptions with the intent to protect the health and safety of the
general public. At the first meeting of the Committee, the members were given a draft ordinance
to begin the process along with a draft of potential exceptions to consider. Baker reviewed the
timeline and the process involved in the meetings to accept public comments.
Dr. Masciarelli, Chair of the Committee, reviewed a snapshot of recommendations in terms of
restaurants, bars, outdoor patios, billiard/bowling/bingo facilities, hotel/motel rooms,
workplaces, designated distances from public entrances, and other applicable exceptions.
Restaurants – restaurants were defined as an enclosed indoor establishment that was open to the
public and was devoted primarily to the sale and service of food for immediate consumption. It
also included a bar located with the establishment. The recommendation of the Committee was
to prohibit smoking in restaurants.
Bars – bars were defined as an enclosed indoor establishment that was open to the public and
was devoted primarily to the sale and service of alcoholic beverages for on-premise
consumption. The recommendation of the Committee was to prohibit smoking, unless the bar
did not allow admittance to or employ persons under age 18.
Council Member Watts questioned the reasons for no votes based on the restrictions presented.
Masciarelli stated that some members did not want smoking at all at bars.
Council Member Watts stated that pool halls could be associated with some type of a bar area
and questioned the standard for that.
Masciarelli stated that the Committee discussed what the licensing was for the establishment.
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December 11, 2012
Page 2
Mayor Pro Tem Kamp stated that the TABC license was used for what type of establishment it
was.
Council Member Roden asked if the age limitation of 18 was a self-imposed rule on
establishments or a legal standard. He questioned if a bar could indicate that Friday nights were
only for individuals 18 and over but on different nights have different ages allowed.
John Knight, Assistant City Attorney, stated that whether or not entry was allowed was presented
by other rules such a whether or not the establishment had a cigarette vending machine. If there
was a machine in the establishment, no one under 18 could be admitted.
Council Member Engelbrecht stated that the regulation was that cigarettes could not be sold to
anyone under 18 so if a bar had a machine and a restriction of under 18, then there was no
problem with selling to those under 18.
Council Member Gregory asked how many bars currently restricted patrons under 18.
Mayor Pro Tem Kamp stated that the backup indicated 50%.
Council Member Gregory asked if people over 18 were less susceptible to the health issues
associated with second hand smoke.
Masciarelli stated that he could not say at what age it would matter. Some of the Committee’s
discussion was that someone over 18 was no longer a minor and could make his/her own
decisions.
Council Member Watts stated that 18 was the age of majority to be able to make own decisions
but if that was applied to bars then why not apply that to other establishments like restaurants. If
the goal was to protect people from second hand smoke, the age portion was really applicable to
all places. If the goal was to prevent individuals from being exposed to second hand smoke and
the issue was regulated by statute, it would be alright because there was another enforcement
issue. He was not comfortable with the property owner discretion for age restriction.
Council Member King stated that if an establishment had a bar and a cigarette machine it was
already classified as not having anyone under 18. If a bar owner wanted under 18 included,
he/she would not have a cigarette machine.
Council Member Gregory asked if the proposal accounted for sections of a restaurant/bar that
had areas over 18 and other areas under 18.
Masciarelli stated that bars in restaurants would have no smoking.
Council Member Engelbrecht stated that a bar could voluntarily eliminate smoking and not have
a cigarette machine.
Masciarelli continued with the definition of open aired outdoor patios at restaurants and bars.
The recommendation was to allow smoking in that location.
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December 11, 2012
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Council Member Gregory stated that based on the proposed definition, would an outside area
with one wall part of the building and three sides some type of pretty fencing be considered a
patio.
Masciarelli stated yes.
Council Member Gregory asked if a building had an open area in the corner with two solid walls
and two open walls if that would be a patio.
Masciarelli stated yes as it would still allow for more than 50% light and air penetration.
Council Member Gregory asked if there were three solid walls.
Masciarelli stated that would not be a patio.
City Attorney Burgess suggested reviewing that definition to make sure it was clean.
Masciarelli reviewed the definition of bingo facilities and the recommendation to allow smoking,
provided the establishment installed a physical barrier between smoking and non-smoking
sections within 3 years. Billiard and bowling facilities were reviewed. No definition was
provided for these two establishments. The recommendation was to prohibit smoking in bowling
alleys and in billiard/pool halls. There was no vote taken on the billiard/pool hall
recommendation.
Council Member Gregory asked about what was known about second hand smoke in open air
situations and whether it was less of a health hazard.
Masciarelli stated that it would depend on the concentration of the smoke and ventilation.
Masciarelli reviewed the recommendation for hotel/motel rooms which was to prohibit smoking
in indoor public areas with no ratio of smoking to non-smoking rooms designated. The outdoor
designated distance from public entrances was removed from the draft ordinance with zero feet
designated from public entrances.
Council Member Roden asked if other cities looked at certain parts of town differently from
others.
Baker stated that she did not see that in any ordinances that she reviewed.
Masciarelli stated that exceptions to the smoking regulations would include private residences,
unless used as a health or childcare facility, personal vehicles, private clubs and fraternal
organizations.
Council Member Roden stated that bars were sometimes private clubs.
Knight stated that a private club for this ordinance was different from a TABC private club.
Masciarelli continued with the exceptions for tobacco bar, tobacco shop and cigar bar.
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Baker stated that although it was not part of the charge, the Committee presented some
recommendations for enforcement. A business was implicated if a patron smoked in the
establishment. However, the business owner would be responsible if he/she did not remove
ashtrays, post no-smoking signage and/or did not inform potential employees of the non-smoking
policy.
Council Member Watts felt that the ordinance was person centered and questioned if that was
how Council wanted to have the new ordinance. He questioned a situation where people
consistently smoked in a business and the business owner was not liable. He wondered if
Council wanted the ordinance to be more business oriented or keep it person centered.
Mayor Pro Tem Kamp felt that was getting into what was personal responsibility. There were
other definitions in the ordinance that had worked in the past.
Council Member King felt were many other areas in the ordinance for the business regulations.
He did not want to have the business owner be the enforcer of the ordinance.
Council Member Watts questioned how smoking in a restaurant would be enforced.
Baker stated that it would be up to the Police Department to issue a citation. It would be difficult
to write a citation but it could be done. However, it probably would not be prosecuted.
City Manager Campbell stated that 90% or more of the enforcement would be done with the
property owner who would comply with the ordinance. People would obey the law which would
be the predominate way to enforce the regulation.
Council Member Roden asked if the person centered approach was standard in other cities.
Baker stated that most cities did it that way.
Council Member Gregory stated that the backup stated that smoking would be restricted in any
place of business. He questioned if that included a small office with only three employees.
Baker stated that was correct.
Council Member Gregory thought that at one time there was discussion about restricting the no
smoking to the number of employees.
Baker stated that was not discussed by the Committee.
Council Member Watts stated that if there were isolated incidents of smoking in public places,
there probably would not be a problem. But if a business continually allowed smoking, there
might be a need to think about making the business owner responsible for some situations.
Council Member Roden asked if the Committee voted on the work place issue.
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Baker stated the Committee considered it on December 3 and decided to add “lit” to the
definition.
Council Member Roden stated that people worked at bars as well and why was that not taken
into consideration.
Masciarelli stated that usually adults over 18 were working at bars.
Council Member King asked about the patio distance of 15 feet verses 25 feet.
Masciarelli stated that was no longer in the ordinance.
Council Member Roden asked about the public transit aspect of bus stops.
Baker stated that as drafted the ordinance would have prohibited smoking in open air bus stops
and platforms. However, the committee added "enclosed" to the definition which took away bus
stops and platforms but did not allow smoking in transit centers, buses, and in trains.
Council Member Roden stated that some shelters were enclosed and whether or not to allow
smoking in those.
Council Member Gregory asked for a comparison on the proposed ordinance with Representative
Crownover’s recommendation.
Council Member Roden asked for an additional work session for more time to discuss the
provisions of the proposal.
2. Receive a report and hold a discussion regarding an Update on Citizen Advisory
Committee for the Comprehensive Plan rewrite.
Brian Lockley, Interim Director of Planning and Development, stated that Council had directed
staff to create a Citizen Advisory Committee (CAC) for the Comprehensive Plan rewrite. The
primary responsibility of the CAC was to provide feedback on goals, recommendations, and
strategies that would be developed throughout the update process. The expressed role of the
CAC would be to act in an advisory role to Council, represent board community interests, model
community consensus and encourage others to participate, promote citizen ownership/ensure
“buy-in”, guide development of Vision Statement, Alternative Scenarios, and Strategic
Directions, and champion the Comprehensive Plan. The Committee would be made up of
approximately 26-34 members that represented interests from across the City and extraterritorial
jurisdiction. Each interest group had a select number of positions on the Committee and would
be appointed by the Council. Staff had identified 15 areas of interest for membership. Staff had
contacted the eight boards and commissions listed and received confirmation of their willingness
to participate. They also reached out to the Denton Independent School District, Texas Woman’s
University and the University of North Texas to request their participation and provide a staff
person in this effort. Other areas included former Denton Plan members, the development
community, Chamber of Commerce, neighborhood associations, environmental interests, Denton
County Transportation Authority, Denton County, Denton downtown, edge cities/ETJ,
bicycle/pedestrian interests, large landowner, small business interests and large business
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interests. If an issue arose concerning a particular board or commission, the issue would be
presented to the entire board/commission for a recommendation from the entire
board/commission.
Neighborhood Associations - five positions were identified for the public to serve on the CAC
and active encouragement would be promoted for citizen participation. To inform the public of
this opportunity to serve, various means were used which included a press release, notice on
Facebook and EngageDenton, notice on the City website and the DentonPlan 2030 website, an
announcement was made on the City Twitter account and the Denton Record-Chronicle ran a
story inviting public participation.
Forty-five applications from the community were received to be considered for the five
positions. Each of the applicants met one of the three eligibility criteria (1) to be a resident of the
City or the city of Denton ETJ, (2) to own/operate a business in the City or the city of Denton
ETJ, or (3) to be a landowner within the City or the city of Denton ETJ. The Neighborhood
Association Selection Process would involve each district Council Member recommending an
appointment from their respective district to serve, the Mayor and At-Large Council Members
would also recommend an appointment from the total list and staff would compile the selections
and forward them to the Council for consideration. It was requested that Council committee
st
member recommendations be forwarded to staff by December 21 to be compiled and forwarded
to Council for further consideration. Council Members were not restricted to only those people
in his/her district.
Denton Plan Ambassadors – as the volume of individuals interested in a leadership role in the
Denton Plan update was greater than the membership of the Advisory Committee, staff created
an additional venue for citizens to be involved by becoming a Denton Plan Ambassador. These
individuals would network with the Committee as a messenger and representative for the
community. The role of an Ambassador would be to discuss the current status of the
Comprehensive Plan update, bring feedback to the group and staff for discussion, and take
information to the community to keep them engaged and informed. The Denton Plan
Ambassador was also a format that could encourage youth to participate in this process. There
would be no maximum number of Ambassadors. The only requirements would be member
attend a brief orientation; only miss a maximum of two meetings and sign-up to carry out the
Ambassador objectives.
Council Member Engelbrecht asked about the number of meeting they would have to attend.
Lockley stated that there would be about 8-10 meetings.
Council Member Roden stated that he appreciated the inclusion of boards and commissions on a
greater level He suggested also trying to capture college students through their government
associations.
Lockley stated that staff would have to make an effort to go to the community such as going to
the universities and inviting students to attend.
3. Receive a report, hold a discussion and give staff direction regarding the 2013 State
Legislative Program of the City of Denton for the 83rd Texas Legislature, including key
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December 11, 2012
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legislative issues and strategies.
Lindsey Baker, Assistant to the City Manager, stated that the Texas Legislature would begin
session on January 8, 2011. The City needed to compile key legislative issues for the 2013 State
Legislative Program which primarily related to state initiatives that could impact city finances,
regional transportation, utility issues and public safety issues. Staff had coordinated with the
Texas Municipal League, the Texas Municipal League Big City group, the City’s legislative
consultants and other cities to identify issues of interest to Denton. There would be designated
analysts to help with proposed legislation. It appeared that the key issues this session would deal
with local control.
Brandon Aghamalian, Focused Advocacy, stated that pre-filing had started with several hundred
bills already started. He reviewed the political climate that might occur in the Senate and House
during the upcoming session. Key areas of consideration would include protection of budgeting
authority, protection of city’s ability to zone and protection of investment in municipal utilities.
"Red meat" issues would include (1) TSA pat downs, (2) school vouchers, (3) sanctuary cities,
(4) drug testing for welfare recipients, (5) infrastructure issues for water and transportation, (6) a
franchise tax system, (7) school finance, (8) pension issues, (9) sunset agencies, (10) property tax
caps, (11) economic development programs, (12) gaming issues and (12) utility issues.
Snapper Carr, Focused Advocacy, reviewed the sunset agencies to be considered during this
session. Those included the Public Utility Commission, Railroad Commission, Ethics
Commission, State Pension Review Board, and Housing and Community Affairs. There were
also possible issues with municipal owned utilities and generation capacity along with public
access channels and cable and telecom issues. He noted that there was a large amount new
members which would result in a lot of education needed in both the Senate and House.
Council Member Rode stated that there was nothing in the proposal about gas drilling and felt
that it should be should be included.
Baker noted that it was included on page 14 of the draft under “Land Use and Resources”.
Council Member Gregory asked about franchise tax issues and if there would be bills filed to
attempt to decrease city revenues.
Carr stated so far there was nothing filed that would attempt to decrease the revenues that were
seen. The cable industry would probably be very aggressive regarding this issue. Other issues
might include pole attachments and authority for removal. He felt there would be proposals to
decrease franchise revenues.
Council Member Gregory stated that other cities had recently enacted ordinances to stem the
proliferation of businesses dealing with predatory loans. He questioned the status for the State to
control such businesses or if that would be left up to the cities.
Carr felt that legislation would be filed regarding this issue and that there would be a push for
greater regulations. Senator Davis would be expanding her effort in this area. Whatever was
adopted in the State would preempt local ordinances that had been adopted.
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Council Member Gregory suggested including something in the city’s legislative agenda
regarding this issue. He also questioned the issue of vested rights.
City Attorney Burgess stated that staff was thinking Council might want to look at that chapter to
allow for a provision for an exemption for gas well drilling matters.
Council Member Gregory stated that he would like to see more specific wording and requested
th
that this item be placed on the December 18 work session for further discussion.
Baker reviewed the upcoming Denton County Days agenda and activities.
Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City
4.
Council or the public with specific factual information or recitation of policy, or accept a
proposal to place the matter on the agenda for an upcoming meeting AND
Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of
community interest regarding which no action will be taken, to include: expressions of thanks,
congratulations, or condolence; information regarding holiday schedules; an honorary or salutary
recognition of a public official, public employee, or other citizen; a reminder about an upcoming
event organized or sponsored by the governing body; information regarding a social, ceremonial,
or community event organized or sponsored by an entity other than the governing body that was
attended or is scheduled to be attended by a member of the governing body or an official or
employee of the municipality; or an announcement involving an imminent threat to the public
health and safety of people in the municipality that has arisen after the posting of the agenda.
Council did not have items for future agendas.
Following the completion of the Work Session, the City Council convened in a Closed Meeting
to consider the following:
A. Consultation with Attorneys - Under Texas Government Code Section 551.071.
1. Consult with and provide direction to City's attorneys regarding legal
issues and strategies associated with Phase I and proposed Phase II Gas
Well Ordinance regulation of gas well drilling and production within the
City Limits and the extraterritorial jurisdiction, including Constitutional
limitations, statutory limitations upon municipal regulatory authority,
moratorium on drilling and production and claims associated therewith,
statutory preemption and/or impacts of federal and state law and
regulations as it concerns municipal regulatory authority and matters
relating to enforcement of the ordinance.
With no further business, the Council convened in Open Session and adjourned.
____________________________________ ____________________________________
PETE KAMP JENNIFER WALTERS
MAYOR PRO TEM CITY SECRETARY
CITY OF DENTON, TEXAS CITY OF DENTON, TEXAS