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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. City of Denton City Council Minutes 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. City of Denton City Council Minutes December 11, 2012 Page 3 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. City of Denton City Council Minutes December 11, 2012 Page 4 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. City of Denton City Council Minutes December 11, 2012 Page 5 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 City of Denton City Council Minutes December 11, 2012 Page 6 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 City of Denton City Council Minutes December 11, 2012 Page 7 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. City of Denton City Council Minutes December 11, 2012 Page 8 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