March 13, 2007

The Board of Commissioners of the City of Lawrence met in regular session at 5:30 p.m., in the City Commission Chambers in City Hall with Mayor Amyx presiding and members Hack, Highberger, Rundle, and Schauner present.  

It was then moved by Schauner, seconded by Hack, to recess into executive session for 45 minutes for the purpose of discussing potential real property acquisition.  The justification for the executive session is to keep possible terms and conditions confidential at this time. Motion carried unanimously.

The Commission returned to regular session at 6:10 p.m. 

The regular meeting resumed in the City Commission meeting room at 6:35 p.m.

With Commission approval Mayor Amyx proclaimed Saturday, March 17, as the day of the “Twentieth Annual St. Patrick’s Day Parade.”

CONSENT AGENDA

As part of the consent agenda, it was moved by Highberger, seconded by Hack to approve the City Commission meeting minutes from February 27, 2007.  Motion carried unanimously.  

As part of the consent agenda, it was moved by Highberger, seconded by Hack to receive the LMH Board meeting minutes of January 17, 2007; the Board of Zoning Appeals meeting minutes of January 4, 2007; the Uniform Building Code Board of Appeals meeting minutes of February 8, 2007; and the Recycling and Resource Conservation Advisory Board meeting minutes of December 14, 2006.  Motion carried unanimously. 
As part of the consent agenda, it was moved by Highberger, seconded by Hack to approve claims to 736 vendors in the amount of $3,011,878.73.  Motion carried unanimously.          
As part of the consent agenda, it was moved by Highberger, seconded by Hack to approve the Drinking Establishment Licenses for Ixtapa, 2016 West 23rd Suite B; The Pool Room, 925 Iowa; AllStars, 913 North 2nd Suite C; Chili’s Grill & Bar, 2319 Iowa; La Familia Café & Cantina, 733 New Hampshire; and the Class A Club License for Columbus Club Association, 2206 East 23rd.  Motion carried unanimously.   

As part of the consent agenda, it was moved by Highberger, seconded by Hack to concur with the recommendation of the Mayor and appoint Jason Novotny and Robin Smith to the Traffic Safety Commission to terms which will expire April 30, 2010 and reappoint Michael B. Sizemore to the Historic Resources Commission to a term that will expire on March 1, 2010.  Motion carried unanimously.                                       

As part of the consent agenda, it was moved by Highberger, seconded by Hack to authorize the purchase of one demo investigation vehicle for the Fire/Medical Department off the H-GAC cooperative contract in the amount of $222,695 from Pierce Manufacturing, Inc.  Motion carried unanimously.                                                                                                              (1)

As part of the consent agenda, it was moved by Highberger, seconded by Hack to authorize the City Manager to enter into an Engineering Services Agreement with TranSystems in the amount of $21,278.00 for services related to waterline relocation at 2^nd and Locust in conjunction with the street improvements.  Motion carried unanimously.                                 (2)

As part of the consent agenda, it was moved by Highberger, seconded by Hack to authorize the City Manager to enter into an agreement with Landplan Engineering in the amount of $40,100 for professional engineering and landscaping architectural services for the Oregon Trail Addition Park.  Motion carried unanimously.                                                                               (3)

As part of the consent agenda, it was moved by Highberger, seconded by Hack to authorize payment to the Kansas Department of Transportation in the amount of $40,000 for study of the K-10 Corridor.  Motion carried unanimously.                                                         (4)

As part of the consent agenda, it was moved by Highberger, seconded by Hack to adopt Resolution No. 6708, setting out the findings and determinations of the Governing Body and ordering the construction of 25^th Street Terrace from O’Connell Road to east of Franklin Road.  Motion carried unanimously.                                                                                       (5)

As part of the consent agenda, it was moved by Highberger, seconded by Hack to adopt Resolution No. 6709, approving the sale of certain real and personal property, and authorizing the Mayor to execute the Special Warranty Deed, Bill of Sale, and Termination of Documents, all related to the RAM Company project and redemption of 1995 Industrial Revenue Bonds, in the aggregate original principal amount of $5,555,000.  Motion carried unanimously. 

(6)

As part of the consent agenda, it was moved by Highberger, seconded by Hack to receive the Police Department’s Annual Racial Profiling Complaint Report for 2006.  Motion carried unanimously.                                                                                                                       (7)

As part of the consent agenda, it was moved by Highberger, seconded by Hack to authorize the Mayor to sign a Release of Mortgage for Russell Hopping, 1617 Cadet.  Motion carried unanimously.                                                                                                                            (8)

As part of the consent agenda, it was moved by Highberger, seconded by Hack to authorize the Mayor to sign a Subordination Agreement for Lawrence Women’s Transitional Care Service, Inc.  Motion carried unanimously.                                                                    (9)

As part of the consent agenda, it was moved by Highberger, seconded by Hack to receive a request from Neighborhood Resources Advisory Committee regarding waiving water and wastewater tap fees from Lawrence Habitat for Humanity and Tenants to Homeowners, Inc. for affordable housing development.  Motion carried unanimously.                                          (10)

The request from Spencer Museum of Art for placement of a mural on the north exterior wall of the New Hampshire Street parking garage was pulled for separate discussion.

Sarah Lynn Reese, Director of the Spencer Museum, said they were excited to come before the City Commission to ask permission to place a mural in Downtown Lawrence that celebrated Aaron Douglas, African American Modernist.  She said the most amazing thing about Lawrence was the connection between the University, this community, and it artists.  She said to consider this mural the beginning of many projects the Spencer Museum of Art and the Lawrence community would share. 

Carolyn Chin Louis, Assistant Director of the Spencer Museum, said right now they were in the process of finalizing that site, but the mural was really about bringing the legacy in the art of Aaron Douglas who was born in Topeka and raised in Kansas to the forefront along with many other creative geniuses that played a major part in American history and culture that were from Lawrence and the Midwest.  The mural would be a history lesson in itself and they were very excited about it.

Commissioner Highberger said the mural looked like a great project and it would be a wonderful treat to have another David Lowenstein mural downtown and looked forward to the KU/City participation.

It was moved by Schauner, seconded by Hack to receive a request from Spencer Museum of Art  for placement of a mural on the north exterior wall of the New Hampshire Street parking garage.  Motion carried unanimously.                                                                  (11)

CITY MANAGER’S REPORT:

During the City Manager’s Report, David Corliss said he wanted to thank Julie Boyle from the Lawrence School District along with Communications Specialist, Will Leathem, who worked together to complete a flyer promoting public safety.  He said staff thought it was an important communication to distribute to the community and was glad that was accomplished.

Also, he said they were nearing the 2 year anniversary on the City’s receivership on Memorial Park Cemetery.  He said he was concerned about the continuing drain of City tax dollars going to that facility and had asked the new administration at the Attorney General’s Office, to focus on a more rapid resolution of this matter.  He said staff has not been able to access the permanent maintenance funds and providing quite a bit of maintenance to that facility and would insist that it would be maintained appropriately and staff would like that lawsuit to find a clearer path toward resolution than what had been seen so far.

He said regarding the Downtown Sprinkler Program, the City received 32 Downtown Sprinkler Program Applications and staff was in the process of reviewing those applications.  He said there were criteria set out regarding allocation of those funds available this year for that program.  He said the number of applications received indicated a lot of interest in moving toward sprinklers in those valuable buildings and staff wanted to be as accommodating as possible.

He said as a result of the storm events that took place in 2006 – 2007, salt supplies were depleted and for this part of 2007 there was still November and December later this year. 

Finally, he said the City Commission received good building permit reports on historical trends regarding building permits.  He said there was other information he asked the City Commission to review in that report as the Commission had opportunity.

Mayor Amyx said regarding Memorial Park Cemetery, prior to the holiday season last year, there was a lot of activity with the courts and asked if that activity had stopped for now.

Corliss said this litigation was probably not unlike any other litigation which was “hurry up and wait.”  He said there was a flurry of activity and additional prolonged periods.  He said a lot of the litigation was still in the discovery stage of finding the necessary documents and witnesses.  He said the City was to be the appropriate receiver of the property, but the City wanted to have access to those permanent maintenance funds and also wanted the state to give the cemetery an appropriate focus to ensure that the litigation was quickly resolved.  He said staff had discussed that issue and did not think staff had to be an intervener in the litigation to date, but might be something to consider and would discuss that issue with the City Commission in the appropriate forum. 

He said he wanted to let the Commission know staff was mindful of this anniversary and the taxpayers were putting in close to $10,000 a month to maintain the cemetery with staffing and additional maintenance.  He said staff would make sure the Memorial Park Cemetery looked appropriate again for this Memorial Day because that was an important focus for that facility.  He said he wanted the Commission to be aware staff was paying attention to this issue and were asking others to do that as well.  He said staff had confidence in discussions the cemetery would receive attention, but like many other things, if it lost its focus from this group it might not get that attention.

Commissioner Schauner said assuming the City had ownership and received some substantial reimbursement from the prior owner or current owner, he asked if there was any sense about whether the City had an ongoing obligation from City funds over and above what the City might receive in a settlement and/or as the City became the owner of that property.

Corliss said the margin would be narrowed.  He said the City did not make money on cemetery operations right now and there was some City at large subsidy.  He said the cemeteries did not run on a traditional user fee basis.  He said there would be some, but it would not be at that dollar amount.  He said some of the maintenance money would be used for one-time costs because it did not make sense to use one-time money for continuing costs.  He said staff would try to narrow that maintenance gap with some equipment and some other things done for that facility to reduce the ongoing maintenance costs.                                              (12)

REGULAR AGENDA ITEMS: 

Receive follow-up report to recommendation in Matrix Consultants Study concerning implementation of International Building Codes.

David Corliss, City Manager, said one of the recommendations through the development review process was the consultant recommended staff proceed with the International Building Codes.  He said the staff memorandums indicated where the respective boards were in their review of this issue and provided some of the pros and cons of the two options which were:  

1.         Direct the appropriate trade boards to proceed with a blended code, particularly the Mechanical and Plumbing Boards.  The Plumbing Codes would remain with the uniform body of codes and there would be appropriate blending of those codes into the International Family of Codes. 

2.         Direct the appropriate trade boards to review the International Codes and make recommendations on any appropriate local amendments and only adopt the International Code Family. 

Victor Torres, Director of Neighborhood Resources, said staff, a representative from the International Code Council (ICC), and representatives from the International Association of Plumbing and Mechanical Officials (IAPMO), were available to answer any questions as well as contractors that wanted to share their opinions on the different codes.  He said staff received letters from the Lawrence Homebuilders Association and the Building Code Board of Appeals supporting the entire family of International Codes as well as letters from local architects.  The Trade Board representatives present were: Mechanical Board, Building Board, Fire Code Board, and Plumbing Board members.

Ron Durflinger, Lawrence, local homebuilder, said the ICC family of codes was something that he had worked with since 2003 being a licensed Johnson County Contractor.  The ICC program, in its entirety, was one of the most well thought out and easily accessible programs anyone could ask for.  He said the blended code option was one code that he did not find particularly workable, especially over the long term.  He said the Uniform Codes were dying codes and the ICC codes were the vision of the future and his hope was the Commission would take action to direct staff to have those codes adopted with the appropriate amendments, with a 6 month time limit and encouraged stipulating penalties if they did not get it completed in 6 months. 

He said he served on the Building Code Board of Appeals from 1995-2001 where the Board reviewed the 1997 code in 1999 and that code was finally adopted in 2001.  Therefore, that code was 10 years out of date.  One advantage to the International Code Council, because the Contractor Licensing Program that they were involved with in relationship with Johnson County, was the tremendous educational opportunities available twice a year and while a person was required to maintain at least 8 hours of education annually in order for a license to continue, a person was not restricted to those number of hours and had as much as 80 hours available.  He said if a person was not up to speed on the ICC codes, there was that opportunity to come up to speed. 

He said one of the lines he always heard, in his line of work, over the years, was that a person used the excuse they did something a certain way because it was done that way for 30 years which was no excuse.  He said one advantage to the blended code was that tradesmen working exclusively in the Lawrence would be familiar with the Uniform Code.  He said the rest of the area was going to the ICC.  He said if Lawrence was truly progressive, those codes needed to be adopted in a timely manner.  He said they were currently looking at the 2006 code and most of the neighboring municipalities adopted those codes every three years for uniformity purposes of the area, and made it easier on subcontractors to find more work if they ran into a period where their local area did not supply enough work. 

He said at the very worst, it would require the tradesmen to learn something.  He said the codes had changes since they started with the 2000 code and they were now in 2006 and those tradesmen responsive to the types of problems that occur in the home building and construction industry that needed to be dealt with in a timely manner.  He said one other main advantage was when it came time to learn, the ICC had tools that made it very simple.  He said he just received a CD-ROM from the ICC that had the 2006 IRC Code Book in its entirety, in a searchable interactive form.  He said if he had a question, he simply typed in a word or phrase and received every listing of those words and phrases that was involved in that book in an organized manner as it went through the code book so that he could identify where it was used and see if that was applicable to his needs or not.  He said as opposed to thumbing through an index that was many times lacking for lack of space, it was not an effective way to deal with something as complicated as codes.

He said finally, there was not that much dissimilarity.  The new things the tradesmen had to learn were things those tradesmen needed to learn and think about when considering responsibilities to the public when the tradesmen produce the housing and buildings.  Consequently, as a community, it was their responsibility to be progressive, taking the community into the 21^st Century and adopt the International Codes. 

Bill Schweitzer, IATMO, North Central Region Manager, said he took care of four states that used the Uniform Codes, but also used the International Building Code.  He said they had been in business for 80 years and ICC people always said they were dying and going away, but the ICC people wished they were going away.  He said 12 years ago, when they did the split between ICC and IATMO, they were a $2 million corporation at that time and today they were over $10 million and 5 years from now they would be over 20 million.  If they were a dying breed, he asked why their code was written in Spanish, being written in India, being written in Chinese, written in Vietnamese, and was adopted in India, the second most populous country in the world.  He said it was adopted throughout the United States and there were several states and cities that were using the International Building Code along with either one or both of the Mechanical Building and Plumbing Codes from the Uniform Codes.  He said it was something that they tried to go with one code with ICC and it did not work out.  He said they would have had one code for the nation and there was not anyone that would not agree.

He said he had been working with the Mechanical Board for the past two years.  He said when they first started, they were going to adopt the 2003 UMC and as 2006 code came out and because of the time restraints and the time it took to get this done, they went ahead with the 2006 code to see if they could get it adopted.  He said they gave the Mechanical Board, Plumbing Board, and City enforcement people their books to be able to use at no cost to the City and hoped it worked out well. 

He said Torres indicated seminars were not provided in the area so he set up two seminars, one for plumbing and the other for mechanical.  He said two people signed up for the Mechanical seminar so he would reschedule that seminar for the fall.  He said when fall arrived he had three people who signed up for the plumbing and nine people signed up for the mechanical.  He said they went ahead and did the mechanical and moved the three people who signed up for the plumbing to another seminar that was going on in the local area.  He said out of those 9 people, 7 people attended the seminar.  He said they had made an offer to the City that their Code Enforcement and management could attend those seminars at no cost to the city and no City staff showed up.

He said the fire inspectors wanted to know the 71 references to the Fire Code in the International Mechanical Code.  In those references, it would refer back to other sections of the International Mechanical Code, straight back to the Fire Code, so needless to say they were chasing their tails quite a bit, but received all the related sections in the Fire Code and applied those codes to the Uniform Mechanical Code.  He said there were no great conflicts and nothing that would bother anything, but he meant they did not need to purchase that book to make the Mechanical Code work if they used the Uniform Codes. 

He said he kept hearing blended codes did not work, but they did because the City of Lawrence had been using blended codes for years.  He said Topeka; Wichita; Sedgwick County; Salina; Lincoln, Nebraska; Hastings; Grand Island; Los Angeles, and the majority of California was using blended codes. 

He said at one time they were all a group and the split came and hopefully they could get together and go back to a code for a nation instead of having the code wars.  The code wars were costing ICC and IATMO over $10 million a year for him to come to this City and discuss this issue with the Commission.  He said it was ridiculous because that money could go into education and make things work out a lot better so they would be able to teach and utilize the codes to the best of their ability.  He asked what would be better by putting all the people with all the knowledge together rather than sitting there fighting. 

He said he felt like it was necessary for the City Commission to understand that IATMO was not dying or going away and when using a uniform plumbing code or mechanical code, those codes were stand alone codes.  He said when they use a uniform plumbing code, it had gas and medical gas, the IPC did not.  He said the mechanical code had gas, the IMC did not.  He said if the Commission adopted the International Codes, then all the contractors and journeymen not only had to purchase new books, but the gas code book and when going through those particular books, it also referenced out more books.  He said to make this really work, they had to purchase more books.  He said they did not feel that way; one code book took care of what was needed.  He said there was not anything in the Uniform Plumbing Code to where they could not plumb a house or the biggest high rise they had ever seen.  He said it all worked and it was all the same.  He said if they tried to do water pipe sizing off of the International Plumbing Code, then they would have four people out there asking to size it up and would come up with four different answers.  He said if they used the Uniform Plumbing Code, it was very specific, direct, and was charted.  He said the Uniform Code was good and well used and asked the Commission to give that code some thought. 

Commissioner Schauner asked if the IATMO Uniform Code had any code pieces not contained in the code that he provided.

Schweitzer said only when getting into the Mechanical Code because mechanical was so broad and both codes had a lot of different references to look up.  He said if everything was put into a book, the book would be 2 feet thick and no one would get through that book. 

Commissioner Schauner asked if the Uniform Code had its version of the residential code for the fire code.

Schweitzer said the fire code was an International Code which was no problem because that code blended in with their code.  He said they did not try to get into the fire code because that was not their forte, but it was ICC’s and they did not have a problem with that.  He said there was nothing in the plumbing code that did not cover residential.   

Commissioner Rundle asked if IATMO had an Energy Conservation Code.

Schweitzer said the Energy Conservation Code was also done by ICC.  He said they would not try to tell someone how to do an Energy Code because it was not mechanical plumbing.  He said one of the big reasons ICC turned them down on their joint venture was if belonging to IATMO, architects, engineers, plumbers, contractors, everyone involved with their codes had the right to be a member.  He said they were the ones who developed the code in the first place and were the people who did the work.  He said a member had a right to vote to make code changes to either accept or reject changes.  He said the actual person doing the voting was going to be the building official with ICC.  He said ICC said they can go in and vote and make code changes, but the building official had the final say.

Commissioner Schauner said if he was a tradesman and had a question about the code interpretation, under the uniform code, he asked if he could make an inquiry of some code official with his organization and if so, was that different from International Code.

Schweitzer said those codes were different.  He said with ICC a person could call for an interpretation if they were a member or on a board in the City as a member. 

He said they had an 800 number and a person did not need to be a member for interpretation of their code in mechanical or plumbing.  

Kevin Chaney, Chair of the Mechanical Code Board of Appeals, said his Board believed the Uniform Mechanical Code was the best way to go. He said their Board reviewed both codes and felt it was best to proceed with the Uniform Mechanical Code instead of the International Mechanical Code for many reasons.  He said since the review process, their Board voted unanimously to accept the UMC with amendments.  He said currently, they were using the 2000 UMC and sent it to City Staff. 

He said IAPMO had always provided free training, books and attended most of their meetings.  He said they had asked the ICC, through City staff, to be present at some of those meetings and that had not happened until last night.  He said one day was not adequate since their Board had been asking the ICC to attend for some time.

He said the ICC required everyone who wanted clarification or any type of questions to be a member and to be a member a person could pay up to $300 a year in membership, where IATMO did not charge anything.  The ICC family of codes left a lot to be interpreted which would be costly.  He said IATMO codes whether UMC or UPC, those codes were black and white and the International Code was too vague.          

He said they had asked for joint meetings with the Building Board and Fire Code Officials to work out some of those differences.  He said they knew the Building Board and Fire Code Officials wanted to proceed with the International Codes in which they did not have a problem with that decision, but they felt they needed to keep the Uniform Mechanical Code realizing there was references in the International Code that referenced International Mechanical Code so if they had the Uniform Mechanical Code, they would need to help amend all those items where it referred to the International Mechanical Code.  The Fire Code Officials gave them a list of their items and concerns and with IATMO’s help, they came up with a list of references as the list was given to City staff to amend.  He said they had not been able to do that with the Building Board because there had not been any meeting or communication with that Board.        

He said with the UMC or UPC a person needed only one book, but with the International Code, a person might need 6 or 8 books.  He said even if adopting the International Family of Codes, there would still be amendments needed.  He said the Building Board and Fire Code Officials had made their stance on proceeding with the International Building or Mechanical Code, because they were so far behind.  He said they tried to keep the Plumbing Code and Uniform Mechanical Code up to date and thought they had done a good job doing so.  He said they understood those codes were the only codes available and had to proceed with the International Code, but at the same time, the Board’s expertise was the Building Code or Fire Code and their expertise was not in the Plumbing or Mechanical Codes.  He said for the Building Board or Fire Code Officials to suggest proceeding with the International Plumbing or Mechanical Codes, and not knowing much about their fields, was wrong.  He said after reviewing the International Mechanical Code and the Uniform Mechanical Code and coming up with a unanimous vote at the board meetings, they felt it was in the City’s best interest to proceed with the 2006 Uniform Mechanical Code.

Mayor Amyx asked if a consumer see much difference in the mechanical aspects that went into a building under either code.

Chaney said if the Mechanical Code was amended correctly, probably not, but there would be a number of amendments needed.

Mayor Amyx asked if all those amendments could be made.

Chaney said yes.  He said the main issue was the support their Board received through the IATMO throughout the years.  Again, their Board asked for the ICC to be present and help make decisions working through the agendas, and up until last night was the first night someone attended the Board meeting.  He said the gentleman who attended was more into the building code portion of the International Code and not the mechanical portion.  He said they needed those particular people at their board meetings.  He said they still had a lot of questions.

Mayor Amyx said if the Commission gave direction on the International Family of Codes, he asked if their Board could bring the code back with the local amendments within 6 months.

Chaney said yes.   

Commissioner Schauner said as a person who served on the board and as a tradesman, he asked Chaney if it was necessary in the day-to-day work performed to be familiar with the other International Codes like the Building Code or Residential Code.  He asked if Chaney needed to know about those codes to perform the work Chaney was hired to do.

Chaney said yes, on new construction it was a big plus to know everything.

Commissioner Schauner said as a subcontractor on the construction of a new residence, for example, he asked if a tradesman needed to be familiar with the Uniform Mechanical and Plumbing Codes and the other because of the integration of the systems.

Chaney said those all those codes worked together whether it was ventilation or fire code issues.  

Commissioner Schauner said with an appropriate amendment of the International Plumbing or Mechanical Code, he asked if the ultimate product would be a more user friendly code group or tradesman in the field than the current use of the Uniform Plumbing Code, Mechanical Code, and International Codes for the other.

Chaney said no. He said they would need 6 – 8 books versus one book and also, the International Code was vague where the uniform code was not. The International Code left too many things up to interpretation. 

Commissioner Schauner said if sufficient amendments were made to the International Plumbing and Mechanical Codes, he asked if it would be possible to take those vagaries out of that code and essentially make it a highly modified version of the International Code that would more reasonably comport with the Uniform Plumbing or Mechanical Codes.

Chaney said anything was possible and it would take a tremendous amount of amendments.

Gwen Klingenberg, Lawrence, said she received phone calls concerning the issue of not requiring second story egress.  She said in Lawrence there were apartments that showed two stories on the front, but three stories in the back.  She asked the Fire Marshall to explain where would it be required to have some kind of escape and when was sprinkling required when part of the building was second floor and another part was on third floor. 

Commissioner Schauner asked if it was a concern that came from the International Fire Code.

Klingenberg said yes.

Rich Barr, Fire Marshall, said there were a large number of apartments in this community that were, by code, considered two story apartments that looked very similar to a lower level partial below grade which met the code.  In the new International Fire Code, the ordinance had been drafted through Legal Services and the State Fire Marshall approved the code as consistent with the State Fire Prevention Code.  The new International Fire Code required all residential to be sprinkled, of three or more dwelling units, tri-plex or above, under the new code would be required to be fire sprinkled. 

He said one of the exceptions in that code stated that if there was a fully sprinkled residential occupancy, an egress window was not needed out of the bedroom.  Under the Uniform Building Code and Fire Code the City had been under for a long period of time that had everyone knew if anyone had a bedroom it had to have an egress window.  He said when the International Codes were developed and Building Officials Code Administrators (BOCA) and the Southern Standard Codes came on board and talked about the various codes because everyone had slightly different codes, the other two code bodies had that exception where they did not have to have an egress window.  He said the fire injuries and fatalities were no worse in the Midwest that adopted the Uniform Codes that did have that in there.  He said it was part of the model code. 

He said he had an e-mail discussion with the Fire Chief from Manhattan Kansas because when they adopted the 2003 International Fire Code, they amended that section out thus requiring dwelling units to have bedroom windows.  He said they were asking today what his position was because they were looking at accepting the International Code as written to allow a fully sprinkled building to not have an egress window. 

He said there were two issues, the egress window and the height issue.  He said in the new code, it did not matter if it was single story with three units or three stories with units on each floor, if they were new, it would be required to be sprinkled.  He said there was not a retroactive sprinkler portion in the International Fire Code.  He said it was not going to require a retro-fit of any existing apartments as long as those apartments were built legally under the code that was enforced at the time those apartments were built.  

Commissioner Rundle said he had a discussion with someone about this similar issue.  He said the concern voiced to him was that even though someone had a sprinkler system, it could be the smoke would get to someone before the sprinkler system went off or if it failed.  He said he knew in some codes it was an either/or sprinkled, smoke barrier, or egress.  He said it seemed that was a valid concern that would be good to have an option of an egress. 

Barr said he struggled under this portion because he had been under the Uniform Codes ever since he had been in his position and there was always an egress window.  In terms of the smoke, all dwelling units were required to have smoke detection and every dwelling unit in the community and that was a retroactive code, so that meant every apartment, guest room and single family residence everyone lived in was required by code to have smoke detection.  He said the reason for that smoke detection was early warning so people could make an escape.  He said that same reaction would occur with an apartment with no egress window because they would still be required to have smoke detection. 

The International Codes placed a great reliance on sprinklers, but as recently as last weekend they had a fire in a residential unit, a senior living unit, that was extinguished by a fire sprinkler system and across town they had another fire at the same time that was in an apartment building not sprinkled and there was a significant difference in the damage and danger the occupants of both of the residential occupancies were placed under.  He said while the concerns were valid with smoke, there were systems currently required in every dwelling unit in town to address smoke detection and early alarms so people could leave.  The new code was putting great reliance on the sprinkler systems so that it would extinguish the fire or at least contain it until the fire service could get there and continue with the extinguishment.  He said he struggled with it and if the Commission wished to put in egress windows from dwelling units, from his position, he would not disagree.

Commissioner Rundle asked Barr to explain what the City of Manhattan adopted.

Barr said when Manhattan adopted the 2003 International Fire Code they amended it so that it would still require egress windows.  He said right now, they were trying to decide if they wanted to continue with that practice.

Commissioner Schauner asked if they required both windows and sprinkling.

Barr said he did not know if they had the sprinklers.

Commissioner Schauner said from Barr’s review of the statistics, he asked if there was no meaningful difference between the Fire Code which required sprinkling, but not egress and the Uniform Building Code which required egress, but not sprinklers.

Barr said correct. 

Commissioner Rundle said the concern about having to jump from a certain height was even if someone was on the second story, jumping into a parking lot there was a good chance of having bad injuries.  He asked what recourse could be taken if wanting to specifically address two stories over concrete.

Barr said back in 1989 that issue was raised with the City Commission at that time because their belief was someone looking out of the top floor window, if they were looking on the front side they would see two stories to the ground and if they were looking on the back side, they would see three stories to the ground and would not care if the bottom floor was basement or not.  He said they had asked that the code at that time be revised to say that it was a three story building if the lowest level of Fire Department access was three stories from the grade level, but they lost on that issue.  He said if they would have been made three stories of lowest level of Fire Department access, they would have been sprinkled from that time forward.

Commissioner Rundle said the specific question was even if they did have a sprinkler, if a person had to jump from the third floor or second floor on concrete, they were risking severe bodily injury.  He asked if there was a way to address that such as fire escapes.

Barr said if it was a three story building, two egress paths were required off of the third floor. He said if it was a two story, the second level only required two exits if there were more than nine occupants on that second level.  He said they could amend the code that every apartment that was above the first floor was required to have its own separate fire escape.

Commissioner Rundle said the question was only if a person had to jump onto concrete.

Barr said if that was what the Commission wished to chose, he was all for safety.  He said if they had smoke detection to warn people and fire sprinklers in new structures to extinguish or contain the fire, whether it was in someone’s apartment or not, they could only do so much that was reasonable.  He said the code with smoke detection and fire sprinklers in every new residential unit of three or more provided an adequate level of protection for folks living in those.  He said a person would have early warning and the ability to survive a fire in the compartment of origin which meant if the fire was in a person’s bedroom, and it was sprinkled, the chances of that person surviving were very good without exiting, but that was not promoted because everyone should leave.  He said they could require exits off of every second floor apartment in town, but he was not sure it was warranted.                 

Mike Porter, speaking as a citizen and a member of the Uniform Building Code Board, said he was a registered professional engineer in Kansas among other states.  He said he did most of his work dealing with American Society Mechanical Engineering Pressure Vessel and Piping Code, which was the code that kept boilers from blowing up for about 100 years in this country.  He said that code had a very specific portion that said if they wanted to build a pressure vessel, this was the way to do it. 

He said the City Commission heard about the problems with a code that gave a person a choice.  He said that was not a problem, but simply realizing there was more than one way to do things.  He said as they looked at things like affordable housing, having only one way of doing it provided no incentive for making housing more affordable for people.  He said even if someone could do it and still be safe and give adequate properties to the homeowner, they could not do it because there was only the one way.  He thought that was wrong.  He said as a Building Code Review Board, they spent four years reviewing the International Building Code, the International Residential Code, the International Energy Code, and the International Existing Homes Code from 2003 and for 2006.  In going through all of those codes, they had to make something in the order of 20 amendments and most of those amendments dealt with process rather than facts.  The International Codes work and work well.  He said over the last 6 months, the Chairman of their board has met with the Chairman of the Mechanical Board, the Plumbing Board, the Fire Board, and Electrical Board, and discussed all of those problems.  He said it had been a known issue among the boards for a long time. 

In addition, they requested three years ago to meet with the International representative.  That representative was there for the next meeting so the fact the International people would not attend the board meetings, to him, was a mind boggling excuse.  He said last night he attended the Mechanical Board meeting and there were questions raised about the ICC Mechanical Code.  He said there was virtually no difference between the two codes.  He said all they heard was the Mechanical Board and Plumbing Board had a friend that met with them every month and the board wanted to keep on using the code the board was accustomed to. 

He said the International Building Code Group worked together and worked very well.  He said a few amendments might need to be made to the individual portions, as the Building Board did, but not the literally hundreds that would need to be made if it was a blended code.

He said as an individual and an engineer, he could not recommend it strongly enough that the Commission adopt the International set of codes and quit playing all the games and go ahead and protect the citizens of Lawrence.

Commissioner Highberger asked Torres to address some of the concerns raised by Chaney and the question about getting interpretations of the code.  He asked if it was true a contractor could ask a question through the City about a code interpretation without any charge under the ICC. 

Torres said a person had to be a member of the ICC to ask for an interpretation.  He said there had been a lot of talk about interpretations.  He said he had been with the City of Lawrence for over 6 years and during that time they had one interpretation needed from the ICC which was a plumbing code issue.  He said interpretations did not happen all the time.  He said most of the time if there was an issue or concern the contractor would contact the City office or any other building department in the country and building officials would make an interpretation. He said this issue about interpretation and who to contact in respect to an organization was blown out of proportion because needing an interpretation did not happen that much.  He said one time in six years, since he had been there, was really insignificant.  He said most of the time if there was an issue about interpretation, staff would meet with the contractor and staff would let the contractor know how they interpreted that specific code.  He said that was why there was an Appeals Board, if the contractor did not agree with the City’s interpretation, the contractor could take the issue to the Appeals Board.  He said there were a number of times when the City’s decision had been taken to an Appeal Board.  The Appeal Board would hear all sides of the issue and then make a decision. 

Commissioner Highberger said from what he was hearing, if individual trades people could contact the Uniform Board individually, there might be a lot of interpretation requests Torres’ office might not know about.

Torres said from information received from the ICC, if there was a call from a contractor or tradesman to the organization, they would receive partial information and based on that information and they would make a recommendation. At that point, the building department would be involved which would paint a whole different picture and as a result there would be a different interpretation from the organization.  He said he did not think there was anything wrong with individuals contacting the organizations for an interpretation, but it was important to get the entire picture.

Commissioner Highberger said if the City Commission were to adopt the International Codes, was it fair to say that individual tradesmen could request the City to provide the information for interpretation without charge.

Torres said yes.  He said the process would be the contractor would contact City staff and staff would work with the contractor or anyone to identify the issue of concern, submit a recommendation or request for interpretation to the organization, and staff would share the interpretation with the individual.  He said that was the service they provided today at no cost.

Commissioner Highberger asked if there were any comments about Chaney’s concern about the vagueness of the ICC and the level of support from ICC.

Torres said he thought the word “vagueness” was not an appropriate term.  The International Code offered different methods and options for the user, but some of those methods and options were subject to interpretation. 

Commissioner Highberger said Chaney raised the concern IATMO representatives were easily available and it was not true that same level of support was made available by ICC.

Torres said staff had not had any issues contacting ICC or having ICC make presentations.  He said there had been a number of issues that occurred in the past few months regarding ICC and IATMO might possibly join and come up with one single set of codes.  He said during that time there was a request to have ICC representative discuss that issue, but that Board only met once a month and things were happening pretty quickly, by the time the board was going to meet again, decisions had already been made to a point where that merger that was being proposed fell apart.  He said they had a number of meetings with the trade board chairman to share with each other what was the status of the other boards. He said they met on October 9^th, September 11^th, November 13^th and February 2^nd in his office with the trade board chairman on the issue of how they could work it out.

Mayor Amyx said looking through the information that staff provided for the Commission, prior to July of 2003 a Code Review Committee (CRC) was formed to look at this issue and met from July 2003 – January 2004.  The Code Review Committee recommended the City Commission look at the International Code.  He said the Commission received CRC’s final report and recommendation March 30, 2004, and the Commission voted to designate the family of codes from ICC as the base model and refer those codes to the appropriate Boards for technical review.  He asked why those amendments were not brought back to the City Commission.

Commissioner Rundle said the City Commission gave the Board permission to conduct a comparison, side by side, and make a recommendation.

Vice Mayor Hack said the Board used the International Codes as the base.

Commissioner Schauner said it seemed the Mechanical and Plumbing Boards had a strong interest in retaining the Uniform Code for their trades.  He said the recommendation from Torres, at the time, was to use the International Codes and the City Commission, on a split vote, said if the Mechanical and Plumbing Boards wanted to do some comparison between the International and Uniform Codes, the Commission would not require those Boards to follow the International Code, at that time.  He said what he was seeing was a recommendation from Plumbing and Mechanical that they still had an interest in retaining the Uniform Code for their trades and were not convinced, after three years of work, the International Code was the direction their Boards wanted to go. 

Mayor Amyx said if he understood Chaney earlier, that with appropriate local amendments, the code could fit this community and the International Code.

Chaney said yes, if that was the City Commission’s recommendation.

Commissioner Schauner said part of the problem was they had volunteer boards meeting monthly and it was a substantial task to go through the process, make the amendments, and run it through Neighborhood Resources and the Legal Department.  He said if the direction was a 6 month window to bring that code into compliance using ICC as the base with whatever local amendments were deemed appropriate, it would be a difficult task to achieve.  He said his idea was a code set that provided the greatest level of health, safety, and welfare to the consuming public.  He said he did not know if he knew enough about how the Uniform Plumbing and Mechanical Codes were better or not as good as the International Code on the same subjects.

Mayor Amyx asked if Commissioner Schauner would feel comfortable that a recommendation be made to use the International Code as a base model, refer it to the various Boards with a six months window to bring back those amendments, and if they could not make those amendments in that timeframe, then the Commission would decide one way or another.

Vice Mayor Hack said getting those amendments completed in a timely manner was a concern.  She said those were volunteer board members and a quorum was difficult therefore, another month would be lost if a quorum was not present.  

She said what brought this issue to a head was the Matrix Study in which those people had the expertise the Commission lacked in terms of the specifics.  The Matrix Study indicated the International Codes should be adopted by the City Commission with amendments, for the various Boards, that were specific to Lawrence. 

She said in terms of reading and discussing the International Codes, it made sense to adopt that code.  She suggested asking the Trade Boards to work with staff, because those Boards were the experts, draft an ordinance that would adopt the Family of International Codes with amendments with a 6 month time frame, and bring this issue back to the City Commission in 90 days for an update. 

Commissioner Rundle said he was prepared to direct the Code Boards to use the International Codes with the appropriate amendments.  He said he believed the concerns about the Blended Codes or a Uniform Code beside the International Code had been overblown because those codes were very similar.  Originally, he was persuaded that the Uniform Codes were more stringent and thus might be a higher quality, but he had been informed of short comings in the Uniform Codes that were addressed in the International Codes. 

He said a 6 month time frame should be no problem.  Those Code Boards that kept their codes up to date, such as plumbing and mechanical, had a new code every three years or so and those Boards were very efficient.  He said he trusted the Mechanical Board, if they were directed to bring back an amended International Code would have no trouble in meeting the 6 month time limit.  He said the concerns that rose to the surface was the he would like to see the recommendations of the Code Boards for making the best code possible by those amendments.

Commissioner Schauner said the Commission was discussing what was possible for the Mechanical Boards, but the Commission did not have the ability to judge what was possible from any volunteer board.  He said regarding the amendments that Chaney believed were necessary to the ICC Mechanical Code, he asked if it was possible to make those amendments and get those amendments back to the Commission for approval within 6 months.

Chaney said if their Board had routine meetings.  He said recently, the Commission appointed another member to their Board.  He said they had a four member Board for quite some time which made it hard. He said now that their Board had five members that would help.  He said if they could get the ICC representatives that would be a big help and with the combination of those two, those amendments could probably happen. 

Commissioner Schauner asked Torres how, as a City, they could assure participation on a regular basis with a Mechanical and/or Plumbing Boards to see if the 6 month time window was realistic and reasonable.

Torres said staff would be glad to facilitate that endeavor.  The Building Board had met almost weekly with staff and staff provided information to that Board.  He said it was up to the Boards and their availability to attend as frequently as possibly.  He said the Building Board was meeting on a weekly basis to get through those codes.  

He said staff was not saying the Uniform Codes were bad codes.  He said it was a much bigger in adopting the International Family Codes which was pointed out by the consultant that was hired.  He said it was the City’s responsibility to make sure safe buildings were provided in this community.  He said it was not saying one code was worse or one code was better because that was not the argument.  He said any time there was a mixture of codes, it was complicated and staff was trying to minimize those complications in the process.  He said he believed that was why the Matrix Consultants recommended the International Family of Codes.

Mayor Amyx said when listening to Chaney discuss those amendments necessary to take care of the questions and concerns of their Board, he asked if those amendments could be made.

Torres said absolutely.  He said from the comments he heard from the Mechanical Board, there was nothing they could not amend into the code and make it work.

Commissioner Schauner said his father was an electrician for 35 years and when it came to electrical matters, he would want his opinion because his father was someone who worked with electrical issues everyday and had first hand knowledge about those products and that process.  He said that was the person’s input he wanted and really had the best on the ground knowledge on what worked and what did not work in their environment.  He said if they could get that accomplished in 6 months, they would all be better off. 

Commissioner Rundle said it was a complication, but when looking at major communities such as Topeka, Wichita, and any other community in the Kansas City area, they were using  the uniform codes and people got around that.  He said with the Matrix recommendation, he sat through their review process and they but ultimately made a recommendation to use the International Codes, but it was not a huge, critical problem.  He said he concurred and wanted to move forward.  He said part of this issue was bogged down because of the tension between staff and the Boards.  He said there had been delayed minutes and staff was rewriting minutes where they had not attended.  He said if there was a little more cooperative spirit, which the Commission would direct that cooperative spirit, it could be resolved fairly quickly. 

Commissioner Highberger said he hated to go against the recommendation from one of the Trade Boards, but it was time adopt the International Family of Codes.  He said it was a recommendation from the Matrix Report and part of the recommendation from the Sustainable Design Assessment team, and was requested from the Resource Conservation Advisory Board who wanted to get this issue resolved to move forward with adopting the International Energy Code.  He said everyone he had heard from in the architectural profession wanted to adopt the codes.  He said he thought the City Commission should have provided more direction two or three years ago and it was time to move forward.  He said as to the Fire Code, he suggested adding back the egress window requirement and there were reasons other than fire safety for requiring windows in bedrooms and he did not think it would be difficult to make that change.

Commissioner Schauner said he agreed with the idea of the egress window and the topic of the two stories versus three stories deserved some conversation.

Commissioner Rundle said he remembered those planning issues when they had those apartments and it was a very big struggle.  He said he would like to get that issue cleaned up.

Mayor Amyx said the recommendation from staff was for the City Commission to provide direction to the Building Trade Boards on the implementation of codes.  He said he concurred to move ahead with the recommendation of the International Codes and send it to the Trade Boards for local amendments necessary to adopt the International Family of Codes with a six month time frame. 

Corliss said that was the action of the governing body and the timeframe and reporting mechanisms was staff’s expectation that within six months, they would then have the International Codes in place and adopted. He said staff would need to coordinate to make sure they were not adopting one International Code version that was in conflict with an existing code. He said staff would devote the necessary resources to make sure all of the Trade Boards felt they were recommending the right amendments for the community. 

Commissioner Rundle said the City Commission had a concurrence they wanted the Boards to recommend appropriate amendments with appropriate justification.

Commissioner Highberger suggested directing staff to include request to move forward with the adoption of the International Energy Conservation Code as part of the ICC family. 

Moved by Hack, seconded by Schauner, to direct staff and the Trade Boards (working with City staff) to draft required ordinances for the adoption of the International Family of Codes with appropriate local amendments; a timeframe of six months for bringing these ordinances to the City Commission for adoption will be in effect, and as to the International Fire Code to add the egress window requirement.  Motion carried unanimously.  (13)

Public Safety and Downtown Safety items.

a. Consider adoption of Ordinance No. 8082 establishing penalties for the violation of City firearm possession ordinance

David Corliss, City Manager, said the first ordinance responded to the Mayor’s direction for an opportunity to review an ordinance that would establish penalties for the violation of the City’s Firearm Possession Ordinance.  He said Scott Miller, Staff Attorney, was working on that ordinance and there needed to be some Commission discussion regarding the judges discretion on that issue. 

He said the next two items concerning public safety in the Downtown area sought Commission direction before there were public meetings and stakeholder opportunities to comment.  He said whether or not the City wanted to have an entertainment licensing ordinance, the type of parameters, and whether or not to proceed with possible amendments to the zoning code to allow for special use permits for drinking establishments and structures with cereal malt beverage licenses. 

He said this discussion was not meant to be the public hearing on those items because the City Commission would decide what level of public input the Commission wanted to receive.   He said this discussion was meant to frame the issues so there was a more focused discussion when scheduling those public meetings. 

Mayor Amyx said he had been in business downtown for 30 years and never felt a need to bring a gun in downtown Lawrence. He said entertainment venues were important and something the City wanted to protect, but there were situations where things had gotten out of hand.  He said he would recommend a 30 day minimum sentence required for possession of a firearm with the exemptions listed in the ordinance.  He said there might be instances where flexibility needed to be given to the judge. 

Scott Miller, Staff Attorney, said at the Mayor’s request, he drafted an ordinance changing the minimum penalties for a violation of weapons around bars ordinance.  He said currently the penalty was 0 days in jail for up to a year in jail and $0 in fines up to $2500 in fines.  He said the Mayor’s proposal was to provide more definite standards for the judge to impose fines, jail time, and create a minimum amount of fines and jail time need to be imposed. 

The version attached to the agenda had a provision which made it impossible for a judge to probate, parole or suspend the sentence of anyone convicted of those violations and who had the minimum penalties imposed.  In other words, 30 days in jail was 30 days in jail and $500 fine equaled a $500 fine, no exceptions.  The alternative ordinance restored the basic presumption discretion for judges to impose suspended sentences or at least parole or probation in appropriate circumstances.  He said the Commission had two different proposals, but each adopted the same penalty scale which was a $500 fine, 30 days in jail for the first offense and $1,000 fine, 90 days in jail for a second offense, or $2,500 in fines, 180 days in jail for a third or subsequent offense. 

He said based upon current legislation pending before the Kansas Legislature, any change made to the law tonight might be short lived.  He said if a bill that was currently before the House ended up passing and becoming law, the City Commission’s authority to legislate regarding possession or transportation of guns in any circumstance would be taken away and the ordinance would be worthless.

Mayor Amyx said the state gave the authority for concealed weapons which was placed in the City Code by ordinance.  He said he understood and realized those individuals had to obtain all the necessary permits.  He said now the state believed cities in Kansas should not have authority to take care of public safety needs.

Miller said a bill was introduced that would limit the City’s authority.

Commissioner Schauner said if the bill was currently pending and the legislature passed the bill, he asked if the entire ordinance would go out the window.

Miller said yes, along with the City’s ability to adopt an ordinance substantially equivalent to the state statute for concealed weapons possession would also go out the window.  He said every weapons violation would be prosecuted under state law in the district court.

Commissioner Rundle asked if charges would be made by the local law enforcement or would those charges need to be made by the state.

Miller said any law enforcement officer in Kansas would have the ability to report to the District Attorney’s Office and press charges.

Mayor Amyx asked what the penalties would be under those statutes.

Miller said he believed it was a Class A Misdemeanor for unlawful possession of weapons, which had penalties for 0 days in jail up to a year in jail and $0 in fines up to $4,500. 

Price Banks, Attorney, said he was speaking on behalf of people who would be affected on the two sections of the public safety issue.  He said kudos to the Mayor but said that it was not enough.  He said the people he represented thought the City had a serious problem, but it was limited to particular areas.  He said they would like to see stiffer penalties and perhaps the impoundment of the vehicles from time to time if the vehicles were found with illegal weapons or weapons in an illegal location. 

Philip Bradley, Licensed Beverage Association, said he also wanted to commend the Mayor, Vice Mayor, and all Commissioners for looking at this issue because it was a very long step forward in a process that might take a while.  He said as far as the legislation pending, it was controversial to say the least.  He said it was by no means a sure thing that it would pass yet and that legislation had a lot of ground to cover before getting there.  He said there were a lot of good groups that were trying to bring some reason to that process in Topeka. 

He said as far as the weapons charges, it was a great step and this step alone the Commission might find results and might make further steps unnecessary or put off for a time period. 

He said he hoped there would be a way to notify the public by some signage.  He said it could be incremental or phased in, but thought it was necessary for people to know when they pull up in their car or park on a street, that this was an area where if they had a firearm they should not stay.

Mayor Amyx said this issue was a matter of safety for downtown Lawrence.  Again, he did not see a need to carry guns in the downtown area, other than those exemptions listed in the ordinance.  He said he thought the fines were appropriate.

Commissioner Schauner asked about the City’s Municipal Court history with respect to probations, suspension, and parole.  He asked if the City essentially had a toothless application of the City’s existing ordinance authority.

Corliss asked if Commission Schauner meant general ordinances.

Commissioner Schauner said he was talking about municipal type ordinances dealing with this issue.

Corliss said it depended on what Commission Schauner’s performance standard was for those types of ordinances.  The City paid Douglas County hundreds of thousands of dollars a year for jailing cost at Douglas County Jail so it was not an unused resource.  He said in the cases he had been involved with, the Judge had used good discretion.  He said there were internal equity issues as far as defendants that came before the Judge on the same item and there needed to be comparative equity issues as far as how it rated with what happened at the State level and what other crimes the City prosecuted and adjudicated.  He said there was a focus on safety and in many cases, the City’s court was involved in traffic and parking and some of the crimes where there was battery, but not aggravated battery because that was done at the State level and domestic battery was handled in Douglas County District Court in this jurisdiction.  He said when getting into some of the violence type issues which this issue was focused on the potential of violence, he said he would not say the Judge did not have a lot of experience with those types of issue, given the Judge’s background as far as a defense attorney and as a Judge, but the City did not deal with the higher violence level crimes.  He said this was a situation where they were trying to solve the problem locally, with this ordinance and staff had already sent a letter in opposition to the legislation discussed earlier so that the City could preserve its local authority under the concealed and carry law, have those types of ordinances.

Commissioner Schauner said he did not want the Commission to pass a feel good ordinance in that its application would not make any material difference in the level of safety in the downtown area.  He said he would prefer the original version to the amended version, but he was willing to give the amended version a try.  If after some experience with this ordinance and the ordinance was not working, he would want to take another look at that ordinance.

Corliss said staff would continue to monitor the situation.  He said he wanted the Commission to know that staff did not see this issue as the one magic item that would respond to the City’s safety issues and staff was looking at it from a different licensing and land use scheme and other potential legal avenues.  He said staff had exhausted their ability to work with ABC at the State level.  He said this issue was an empirical exercise and staff was going to do everything they could until it worked.  He said he did not know if this ordinance would solve the problem, but it was a tool and was a better tool than what the City had right now.

Vice Mayor Hack said she understood Commissioner Schauner’s comment about the “feel good” ordinance, but no one felt good about passing this type of ordinance.  She said the Commission would prefer not to deal with weapons downtown, but the City needed to move forward to protect citizens with this ordinance.  She said she was supportive of the ordinance and she also had faith in the judge because the intent of the law which was to make downtown safer and she did not have any qualms about the way the Judge would handle that issue.

She said she appreciated Banks’ comments about taking the ordinance further and was worthy of some additional discussion to make the City’s downtown safe. 

She said she wanted to work with legislators and beef up lobbying efforts to keep the State out of the City’s downtown safety issues.  She said the City did not need the State’s help in this situation.   

Commissioner Schauner said he did not want the Commission to pass an ordinance that made the Commission feel good about what they had done, but that would make a meaningful difference in what the Commission was trying to achieve. 

Commissioner Rundle said he agreed the Commission should move forward on this ordinance and appreciated the suggestions from the floor.  He said he would put the suggestion about the signage and education as something they needed to do and wanted staff’s response to stiffer penalties and impounding vehicles.  He said with that caveat, he would like to explore those options.

Vice Mayor Hack said signage was important.

Commissioner Highberger said his only concern about making this mandatory with no exceptions, was that no matter how carefully the City drafted its exceptions he was afraid there would be someone who would fall through the rule.  He said whether it was the guy driving through with a hunting rifle and parked next to a bar and there was still one shell left in the gun and he forgot about it or something else, he would trust the City’s local judge to make the right call.  He said he was not someone who thought the answer to every problem was to increase criminal penalties, but this was one place where a clear message needed to be sent.  He said he supported the Mayor’s recommended changes. 

Mayor Amyx said this ordinance was not just for downtown Lawrence, but City wide.  He said the Commission heard comments about problems from people that lived in and around some of those problem establishments.  He said the ordinance was uniform throughout the community. 

Moved by Schauner, seconded by Hack, to place on first reading Ordinance No. 8082, as amended, setting forth minimum penalties for those who possess certain weapons in close proximity of or within drinking establishments.  Motion carried unanimously.                           (14)

Mayor Amyx also requested a staff report on appropriate signage within 200 feet of downtown drinking establishments.

b. Receive staff report concerning entertainment licensing requirements.  Provide direction to staff concerning possible ordinance prior to additional discussions with interested parties.

c. Receive staff report concerning Special Use Permits for establishments with cereal malt beverage or alcoholic liquor licenses.   

Scott Miller, Staff Attorney, said before the Commission was an outline of an ordinance that had not been written yet.  He said it was one way that an entertainment licensing scheme could look like, but staff was asking for direction on policy issues that needed to be decided in order for any such scheme to be written.  The idea for the overriding concerns, when the outline was written, was the concern to give the city opportunity to regulate businesses that were creating situations in the community that were against the public interest that were damaging the health or safety of the public, creating litter problems, crime problems, and other problems.  The second, but equal concern was to do it in a way that was the most minimally invasive to the businesses that were not creating those problems.  He said based upon the fact on how those policy decisions were made, this was not a situation where staff was trying to create an additional revenue stream for the city, but trying to solve a specific problem in the community.   

He said the report was an outline and the language was not nearly as precise at it would be in ordinance form.  He said they were already getting comments about the language as if it would be the final language of the ordinance if it were prepared and adopted, but it was not.

Miller presented the Outline of the Draft Ordinance:

I.          The ordinance’s application.

A.         Applies to all entertainment venues that are open to the public, regardless of occupancy

B.         Entertainment generally means:

1.         Any of the following if a cover charge, admission fee, minimum donation, product purchase requirement, or table or chair rental fee is charged:  Recorded audio or video presentations.  Examples might include recorded music, films, video presentations, etc.     

2.         Any of the following, whether or not there is an admission charge:  Patron dancing, live music, or recorded audio presentations that are presented by a live disc jockey, DJ, or other announcer who introduces and/or moderates the presentation of that music.

C.        Entertainment venues are for-profit businesses held open for use by some or all of the public.  The term does not include properties owned by elementary or secondary schools, accredited universities, accredited professional or trade schools, governmental entities or bona fide not for profit organizations. 

II.          The licensing process.

A.         Licenses will exist both for locations where entertainment is a continuing enterprise as well as those places where the entertainment is of a one-time or temporary nature.

B.         License fees will purposefully be kept very low.  The current intention is to establish the cost of licenses at $25 for a regular license and $5 for a temporary license.  The regular licenses would be valid for a period of three years after issuance.  Temporary licenses could be issued for no more than five days in any calendar year.

C         The license would be issued by the City Clerk.  Disqualifying factors for licensure would include violations of the City’s fire code, development code, or a venue’s site plan; an applicant under the age of 18; an owner or applicant who has certain types of criminal history; or an owner or applicant who has had a previous license issued under the section revoked within the prior two years.  If the licensee is an existing business, additional disqualifying factors include certain crimes such as prostitution or the distribution of controlled substances if they have previously occurred on the premises.  In the event that a license cannot be issued within 10 days of application, a provisional license will be issued pending the completion of the investigative process.  Provided no disqualifying factors are revealed in the investigative process, the City Clerk must issue a license.

D.        The type or content of the proposed entertainment, as long as it is otherwise legal, is irrelevant in the licensing decision. 

III.         License violations.

A.         Criminal violations or ordinance violations by patrons or employees on the

                        premises.

            B.         Noise problems that affect the surrounding neighborhood.

            C.        An accumulation of trash or litter in the surrounding area.

D.        Traffic flow problems, congestion, or appropriation of the surrounding right of way by customers, especially at the end of the entertainment event or at the venue’s closing time.

E.         An increase in criminal conduct within the vicinity of the entertainment venue by patrons who are coming to, at, or leaving the entertainment venue.

F.         The creation of any other condition that is injurious to the public’s health, safety and welfare when there is a direct causal connection between the existence of the entertainment venue and the harm.

G.        Providing false information during the application process.

H.         Becoming ineligible under any of the initial licensing conditions.

I.          Failure to allow premises to be inspected.

J.         Excessive use of public safety resources.

IV.        Conditional licenses and license revocation

A.         In the event that substantial license violations occur, proceedings may be initiated to revoke the license.

B.         The proceedings will be held in front of the City Commission.

C.        The City Manager or his or her designee will present evidence of violations.

D.        Prior to revocation proceedings, if future violations of the same type could be prevented by a security plan, litter or crowd control plan, noise control plan, modification of closing times, or any other reasonable means, City staff shall propose a solution to remedy the problems.  In the event that the licensee agrees to the conditions, he or she shall surrender his or her license and a conditional license will be issued for a period of ninety days which allows continued operation of the entertainment venue under the conditions agreed to.  At the end of the ninety day period, if the conditions have satisfied the concerns, the term of the conditional license may be extended to the term of the license that was surrendered.  If the concerns are not remedied, the parties may agree to additional conditions and the issuance of a new conditional license or may proceed to hearing on the violations.

E.         After the hearing and upon a finding of violation, the City Commission may suspend or revoke the license.  In lieu of suspension or revocation, the City Commission may offer a license for continued operation that shall be conditioned upon any reasonable measures to ameliorate or prevent continuing license violations.  In offering this sort of conditional license the City Commission will consider the nature and extent of the license violations, whether conditions are likely to assist in preventing the problem and the cost generated by the imposition of the conditions versus the harm caused by the license violations. 

V.         It will be unlawful for a venue to host entertainment without a valid license when such a license is required by the ordinance.  In the event that this provision is violated, the penalty is a fine of not more than $1000 or jail not to exceed 90 days or both.

He said if the Commission had any input whether they wanted to adopt this kind of licensing scheme or any input to the provisions they would like to apply, that input was welcomed and incorporated into the ordinance.  The other thing he wanted to add was Olathe had an entertainment venue license that applied to only to places that were 350 people or above.  This ordinance, as proposed, would apply to commercial enterprises that offered entertainment whether they entertained 5 people or 500 people.  Although there was a concern regarding the scale of the problems, the potential existed in different circumstances. 

Commissioner Highberger asked, the way the draft ordinance was written would it apply to every drinking establishment.

Miller said only if those drinking establishments added entertainment.  He said that was the only thing the City could regulate and could not regulate the ability for someone to sell or dispense alcoholic beverages once they are licensed as a drinking establishment.  He said even if the license was revoked under this ordinance, the place could still be open as a drinking establishment but not as an entertainment venue.

Commissioner Schauner asked how this proposal differed from the Commission’s ability to address those issues under the current nuisance ordinance.

Miller said the current nuisance ordinance and provisions dealing with licensing were tied to licensing decisions on the liquor license and drinking establishment license and he did not believe the City had the authority they thought they did when they passed those ordinances.  He said there were some state statutes dealing with nuisances and the common law nuisance causes of action.  He said if that was done in any individual case, it would be a year or more of litigation.  He said this ordinance would set more definite standards and a little quicker turn around regarding the licensing decisions and the City’s ability to provide reasonable conditions to licenses. 

Commissioner Schauner said but as a quasi judicial decision by this body or some future body to take away someone’s entertainment license, that would also be an appeal subject to a year or more of litigation as well.

Miller said yes.  He said the main difference was in a nuisance action they would ask for the behavior to stop immediately beyond the City asking for a temporary injunction or restraining order. 

Commissioner Schauner asked if it was possible to draft that ordinance in a way that created a measure of certainty that would withstand judicial scrutiny.

Miller said he could write an ordinance that was not unconstitutionally vague, but certainly any ordinance the Commission passed would be subject to attack in interpretation.  He said if Commissioner Schauner was asking that he could offer an absolute guarantee the ordinance that he wrote and was passed by the Commission was going to withstand judicial attack, he could not do that.      

Mayor Amyx called for public comment.

Philip Bradley, Kansas Licensed Beverage Association, said he had made several appeals to the state government in some of the funding in those areas.  He said since they were at the end of the hospitality season which ended with St. Patrick’s Day and March Madness, they would be able to do better with following up an idea that came from city staff for a hospitality venue group to try to get together and share information on individuals they had problems with to try to keep that from being an ongoing problem and transferring from place to place.  He said they have made inquiries in that area and were trying to make sure they do things legally as well, but were getting together and trying to do that. 

He said they needed to be very careful the qualifications to have a license and the qualifications to take away a license did not allow to too much subjectivity.  He said Commissions change, staff changes, people’s opinions of others change and it needed to be fairly cut and dry and trusted that staff would be able to work well in that area.  He said many of the things suggested in the outline tonight were not subjective, but there were parts subjective and left room for some bad situations to occur.  He said if it was a really good idea for the City to have this kind of control over businesses and the Commission believed that was what they needed and wanted to do, he was wondering why it was only subjected to entertainment venues and why it was not expanded to other venues. 

Jade Brown, Attorney, said he would like to start off by mentioning both himself and many of his clients had made repeated attempts to become part of the committee that was established the last time this issue was discussed and was told the City would contact them to let them know when the meetings would happen and they were never contacted. 

He said he appreciated Commissioner Rundle’s acknowledgement of alterations and deletions in the minutes.  He said he noticed the same thing and did quite a bit to shake his faith in the system and for that part largely, he had reservations about staff administrating an ordinance such as this.  He believed that Lawrence’s music scene was one of this community’s most valuable assets.  The music scene was fragile and had taken years and decades to establish.  He said the community had continually attested and confirmed their commitments to the Arts, but they felt the proposed ordinance threatened that commitment. 

He said even though the proposed ordinance applied generally to entertainment, it seemed to weigh heavy on live music and would drastically impact live music in Lawrence.  He said Lawrence’s public safety and downtown safety issues had absolutely nothing to do with live music or entertainment.  The ordinance created an adverse incentive for live music and entertainment.  Under the opposed ordinance, venues who failed to comply with the ordinance requirements or chose not to be subject to them by not being licensed would continue to do business, continue to sell alcohol, continue to have the same problems with the only difference not having live music in the city anymore.

He said the issues to be addressed were violations.  This ordinance was intended to hold true across the spectrum and not just entertainment venues the ordinance should apply to, but restaurants and drinking establishments.  This licensing scheme would only control a few of those.  He said his concern was most of the venues, especially those with the problems, were going to forgo live entertainment and continue to be a problem.  He said the Commission was trying to find a way to regulate it since they no longer had control over the liquor licenses and creating an entertainment license might give control over a few, but only a few.  He said they would have the same problems as before but it would hurt the live music. 

He said there were many of them who work and live in the music community and they were asking the Commission to listen to what they were saying.  He said they were not trying to get by or make things easier, but were trying to protect and save something very dear and vital to the community. 

He asked the Commission to direct staff to reaffirm the City’s commitment to the Arts and to protect the City’s music by ceasing and stopping the consideration of entertainment licensing.  He said the City’s time and resources should be focused on the matters of security.  He said the issues downtown were security issues and had nothing to do with entertainment or music issues.  He said he understood the objective was to create a safe environment, but it was how it was going to appear.  He said it was going to appear the Commission was going to force licensing of entertainment venues and control the expression of live music, which was what Lawrence was not about.  He asked the City Commission to move safety discussions in a different direction because he did not think this was the right place to go. 

Price Banks, Attorney representing clients impacted by the proposed establishment license, said his clients could appreciate the goal of providing a safe community and each provider of what was defined as entertainment in this community relied on having a safe environment for the patrons and for their employees.  He said they needed to look at the problem.  He asked if they had a universal problem spread throughout the community.  He did not think so and thought it was a relatively isolated problem.  The proposals the Commission had before them were tantamount to swatting at a mosquito with a sledgehammer.  Both ordinances were overly broad, vague and ambiguous. 

He said he had comments about the special use permit but would hold those comments.  He said his reading of the licensing proposal was a potentially draconian situation that would impact many establishments that did not cause problems. 

He said an example was according to the definition in the outline, nearly all restaurants and bars were entertainment venues because:

1. Required purchase of a product to remain on the premises;

2. Played some type of audio or video presentation, whether it be a juke box, boom box, television set, or other media. 

He said virtually every restaurant in this town, with a few fast food exceptions, would be entertainment venues and would be required to have the license.  Each venue would be in jeopardy of having their license revoked if:

1. A patron violated a City ordinance while on that premises;

2. A Noise complaint;

3. Traffic congestion in the area; 

4. Patrons commit crimes after they left the establishment; and

5. If they call police or fire some undetermined number of times.

He said the license holders under the outlined proposal, were going to be responsible for keeping the surrounding area free of trash.  He said if they were talking about bars, what went out the door in bars was highly regulated with a possible exception of cigarette butts. 

He said the license holder seem to be made responsible for policing the area.  If there was violent activity outside, the establishment was going to be held responsible and have a chance of losing their license.  He asked if they wanted to go out in public areas and stop fights and put employees at risk.  He said the smoking ordinance was to protect employees but what about protecting the employee in this instance. 

He said they needed to address the problem.  He asked if all the establishments were a problem throughout the town or were there one, two or three problem establishments.  He said if they had one, two or three, they needed to look at ways to attack those types of establishments without putting an incredible burden on everyone else. 

Mayor Amyx asked what state law gave the City Commission the ability to go after a bad business. 

Price said he did not know because he had not done that research, but the Commission might want to ask the people that were impacted by this proposed ordinance and perform some additional research such as hiring a consultant.  He said there had to be better ways than adopting an ordinance that was overly broad.  He said the Commission was in a situation where if a patron started playing a boom box, then it was an entertainment venue, which was a violation of the law and were subject to $1,000 fine and 90 days in jail.  One way the Commission could solve the problem was to go after the exact problem which was guns on the street and in cars.  He said the last gun incident was not near a bar, but near a hotel.  He said the Commission also needed to ask the people impacted by this proposed ordinance and suggested holding a study session with bar owners.  He said those bar owners were in the downtown area, late at night, and might be able to offer some solutions to the problem. 

Jake Davis, Lawrence, said people kept saying there was a security issue downtown and he did not think that was true.  He said there was one place that was unsafe that everyone had been alluding to which was The Last Call, yet the City was trying to put a net around every other bar in town and thought it was an overreach for the City Commission.  He said like was said, the City Commission was not always going to be there to put the ordinance the way it was intended and not be there to make those judgments, someone else was going to be.  He said they would need to be able to think ahead.  He said it was not just entertainment venues.  He said there was a shooting at Henry T’s, but this proposed ordinance did not apply to that venue. 

Justin Schweppe, Lawrence, said, “A vibrant community was enhanced by art, entertainment and plenty of opportunities for social interaction.  Many people move to Lawrence for college not knowing how vibrant of a community it is, however, once they were pleasantly surprised by this fact, they often find Lawrence a much better place to live than many of the more bland Midwestern cities and towns they come from.  They end up staying and contributing positively to the community.  Many times they make sacrifices to do this because the wages in Lawrence are not quite as high as they are in the surrounding communities.  This entertainment license ordinance threatens the bars, coffee shops, restaurants, theatres, and art galleries and other various establishments that allow Lawrence to be such a vibrant community.  He said it was so vaguely written that it has a great chance of being used inappropriately.  

At one point, Lawrence was called the City of the Arts.  If this ordinance was passed and used inappropriately, we might as well call it the City of the Bland and those who prefer life a little more flavorful than bland would look elsewhere, such as Austin.” 

Nick Carroll, Jackpot Saloon and the Replay Lounge, said the problem he had with the entertainment license and special use permits were how vague the language was and how absolute the power was given to the City Manager where his discretion to shut businesses down without a legal proceeding.  He said some of the rules of concern was a business could be closed down if it created too much congestion, which was one of the objectives he had as a business owner; he was trying to create congestion and create business.  He said he wanted the parking lot to be as full as it could be and it seemed like it was an anti business license because it was saying there was noise and activity in the parking lots, then he was not doing his job but he felt like he was doing his job if he was successful. 

He said with trash, nothing could really leave the bars at night and monitor because it was illegal to have containers leave the front door.  He said if there was trash in the parking lot, it was not coming from the bars or restaurants.  He said the problem he had with parking lots was when there was noise and trash in the parking lots, it was not really legal for the bar owners to police those areas so he did not know how they could control those things which was why it was troublesome to bar owners and venue owners and with those new licenses, there was nothing they could really do.  He said they did the best they could inside their doors and let go and see what happened because legally they could not control what happened outside of bars and establishments which troubled a lot of people. 

He said everyone liked the idea the Mayor had with Ordinance 8082.  He said that ordinance addressed the problem and would hold people accountable for their actions.  He said bar owners and restaurant owners would like to see signs on the street that said there was no tolerance for guns and violence. 

He said what the license was saying, if a venue was successful, the City did not want that venue downtown.  He said people were downtown because there were a lot of college kids downtown and they like to hang out at coffee shops and galleries, which really put Lawrence on the map.  He said suggested police presence in those areas would really solve this issue and to think of creative ways to have more police presence without costing so much money like video cameras with signage saying a person was on camera.  He said also having retired police cars parked in parking lots deterred things, too.  He said those were some of the things he would like to see the City spend time on rather than coming up with licenses that put the music and the overall culture of the downtown in jeopardy. 

Commissioner Highberger asked Carroll if he would be supportive of surveillance video downtown. 

Carroll said he did not think video surveillance had to be everywhere.  He said if there was a parking lot where they were having problems, they could have a camera recording.  He said if there was a problem, they could pinpoint it to give the police some teeth and the ability to arrest someone.  He said it was the step in the right direction and business owners like that kind of thing because they would be actually going after the problem and not penalizing people for being successful.  He said he would support not a big brother type of situation, but if someone did something wrong it could be caught on tape in only in areas that needed it. 

Dennis Steffes, President of Tremors, Inc., which operates Coyotes and Last Call, read a prepared statement: 

“We, as a business, operate within all the laws and regulations provided to us by our federal, state and local governments.  Nothing that we do is hereby illegal.  As a clarification to our business, we are a service based company and do not manufacture anything and do not produce products, do not make the music, do not manufacture clothing, and specifically do not manufacture people.  We operate a business which provides a service to all people that reside legally within this country.  We collect revenues and pay all the different taxing agencies and tax for those revenues.  We buy product, supplies, services from dozens and dozens of suppliers in this town.  We employ and through our existence as a business, cause the employment of hundreds of employees ranging from executives, sales representatives, delivery drivers, multitudes of service people, and so on.  We pay a staggering amount of bills to utilities companies, manufacturers, producers, service people, security companies, banks, leasing companies and an enormous amount of licensing authorities which we were required to in order to operate as a legal entity.  In other words, we operate as any other proper business should.  This being said for you to be targeting a specific sector, our industry, without looking at anything else with other sectors of the industry that also have problems, seems a little bit improper. 

In regards to this licensing issue, governments have continually attempted to make it illegal to be the kind of people that governments do not like us to be.  He believed lawyers called it status crimes.  For examples, there were laws for being a vagrant, a person with no obvious means of support.  These laws are on the books in many states and local counties.  When tried to be enforced, these have been held to be unconstitutional. 

Kansas has laws against being a homosexual, K.S.A. 21-3505.  Undoubtedly, it had been held unconstitutional when trying to be enforced.  Kansas also has laws against offensive, vulgar, abusive behavior and language, K.S.A. 21-4101, but unfortunately it has also been held unconstitutional when tried.  Now this entertainment licensing was simply an attempt in trying to prevent being the kind of patron the City did not like.  The last time the City Commission discussed these licensing issues, the comments made and the room was filled for dislike and hatred for a certain group of people and the music they listen to.  This licensing was a clear attempt to legislate those kinds of people out of existence.  Therefore, this type law most undoubtedly, if pursued, would be found unconstitutional.

In closing, if there was criminal activity taking place anywhere upon City streets and parking lots, which was what they were trying to pursue right now and avoiding that then he should expect from our authorities to arrest such criminals, put them in jail, and very important, find a way to keep them there.  Doing all of this, by putting the criminals in jail without affecting the rights of the law abiding citizens and/or patrons.  You don’t close a bank for having armed robberies or gas stations for having too many drive offs, or fire or ticket a police officer for having too many speeders in his jurisdiction, but you want to close entertainment places because simply for the fact they are dealing with what society gives them to work with. 

We, as a company, take great care in providing a safe environment for our staff and our patrons within the four walls that we control.  We are perfectly well equipped to deal with what our society give us to work with.  I have not been told anything by this City or officials that what they were doing was wrong.  Therefore, I cannot correct anything in the absence of some specific and credible requests.  All I keep being subjected to was inflammatory comments and indirect threats that our licensing and the ability to operate as a business would be affected somehow by the City.  We have operated at this location as a legal business for the past 11 years and we intend to maintain a form of operation and respectfully ask the City considers all of these issues carefully as to what impacts they would have long term on the businesses.”  

He thanked the Commission for allowing him to speak in advance with due diligence and their attention on those issues.

Mayor Amyx asked staff if there was a state statute that allowed the City to deal with the concerns the City Commission had with any business that was causing problems.

Corliss said he did not think there was a state statute that provided for a licensing scheme similar to what they were talking about with this license.  He said there were statutes that spoke towards nuisances and staff was reviewing those statutes and planned to be as aggressive as staff could be to meet the community’s interest.  He said this was a different type of law than that in the sense of who made the decisions as to whether or not the business was allowed to continue.  He said the City could try to prosecute a nuisance action.  The court was going to make the decision under the law for that particular nuisance statute.  This licensing ordinance would be something the City would have jurisdiction over to determine if a business was allowed to continue under the requirements of that ordinance.

Commissioner Rundle said there was a question about why the City was limiting this ordinance to entertainment.  He asked if the statutes spoke to licensing businesses.

Corliss said a number of Kansas communities licensed businesses for historical reasons he did not know why Lawrence had not licensed businesses.  He said one reason why some communities licensed businesses was because of a revenue measure.  He said it was possible to license businesses and have certain regulatory requirements attached to that type of licensing scheme, but this City historically had not done that.

Mayor Amyx said his business was licensed by the State of Kansas.  He said if his business license was revoked locally, would he still be able to operate under the rules of the State of Kansas. 

Corliss said the State had exclusive jurisdiction for the licensing of drinking establishments and other professions as well.

Mayor Amyx said they were discussing entertainment licenses and special use permits and if there was a bad business downtown or anywhere else in Lawrence, the City needed regulations.  He said Topeka dealt with something similar a few years ago with a bad businesses, but Topeka had the authority to take action to go through the courts.

Corliss said one of the vehicles Topeka used was the nuisance statute  He said he was not willing to put all his eggs in the basket with the nuisance statute.  He said he thought it was worthy to take a look at a local ordinance as well.  He said he observed in his time with the City that it was not uncommon for Lawrence’s downtown or other places in the community to have establishments that sold alcohol that were entertainment type venues of some sort. He said those establishments might very well take care of business on the inside and follow every letter to the T as far as behavior, in paying taxes and all those other things, but those establishments could create neighborhood type problems because of their attractiveness for that type of an establishment.  He said the establishment would point to someone else as to who was responsible and the City would point to that establishment and state they were the reason why the City was having problems in that neighborhood.  He said staff had struggled with that issue in numerous places around the community and some people say the solution was to have more law enforcement which that could be of an assistance at times, but it did not usually solve the problem because in many cases it was after the situation had gotten worse.  He said the City’s police officers could not be everywhere because those officers had tremendous responsibilities around the entire community.  He said historically, there had been value in having some type of tool for this community because throughout the years, the City had problem establishments that have negative externalities associated with those establishments and have not been a good neighbor.  He said he was not blaming them personally, but that was the attractiveness of their business.  He said the City had to find some way to correct that. 

He said Miller had done a good job, given that task in looking at some entertainment licensing scheme.  He said it was important for the City to find someway where the City could put the responsibility back on the business and thought the City needed to do that locally rather than through any type of state licensing system.

Mayor Amyx said staff did a lot of work putting together both licensing and special use permits, but if the City ultimately had to look at licensing requirements and special use permits, it would be with City staff working with people in those businesses and throughout the community.  He said this issue needed some give and take.

He said the Commission needed to address this problem, but he did not know if entertainment licenses or special use permits were the answer.  He said discussions needed to take place to hammer out something.  He said the people that dealt with the problems the Commission did not see, the Commission needed to visit with those people to find out what was really going on.  

Commissioner Rundle complimented Miller for his efforts because this issue had been a head scratcher and everyone wanted to find some way to address this problem and felt they were at a good starting point.  He said the Commission did not want to be overreaching and thought there were ways to address the problem and he had certainly taken no offense to the feedback that was coming in and expected it to move forward if tightened up.  He said it was made clear the Commission did not want to have an adverse effect on the entertainment sector of the community, but wanted to respond to a problem the public was tired of. 

He said earlier tonight some people thought Ordinance 8082 might possibly be a solution in that it would move problem behavior out of the area if people were aware of it. 

He said they had a lot of creative suggestions that came out of earlier suggestions such as having a canine unit on the parking lot and trying to at least create the appearance there were more police patrols without breaking the bank to hire more police officers.  He said he concurred with the Mayor in having a little give and take to get something that would be effective.

Vice Mayor Hack said Lawrence was not the only community that dealt with safety issues in downtown areas that had a lot of entertainment, whether that was downtown or a variety of areas in Lawrence.  She said Miller’s point in his introductory comments was the City’s first goal was to provide the City means to control entertainment venues that were operated or managed in a way that placed the public’s safety and well being at risk or that squandered their public safety resources.  The second goal was to provide that protection while interfering with the businesses to the least possible extent when those businesses did not unacceptably harm the public interest and it was that delicate balance where the City found themselves because the City certainly did not want to do anything that jeopardized the entertainment, the music scene, or simply being downtown and providing an opportunity to gather socially with friends.  At the same time, the City had to be cognizant of the fact the City had people who chose not to go downtown because of safety issues. 

She encouraged staff to have discussions with interested parties on this issue.  She said they could not include everyone on the committee because they would have a herd and nothing would get done.  She said staff felt like they narrowed down people and had a broad representation of the group that she and Commissioner Rundle worked with and she was more than happy to work with those people and staff to see what they could come up with.  She said neither the special use permits nor the licensing would be her first choice, but they were at a point to seriously consider a way to maintain that balance and it deserved further discussion. She said she was more than willing to work with staff and see what they could do to bring that group back together and continue those discussions. 

Commissioner Schauner said he had several thoughts on this matter which included:

The gun piece was a positive step in the right direction. 

There were some people who believed downtown was less safe.  He said as a general rule, he thought downtown was a very safe place and if promulgating the myth that it was not a safe place, people would believe it was not a safe place and that would not do anyone any good.

Incidents had taken place downtown, including a killing which deserved the Commission’s attention. 

The ordinance was overly broad and it needed to solve the issues at hand rather than expand the scope of authority.  He said he was not particularly excited about becoming the behavior police all over the City of Lawrence and did not think it was in their best interest. 

Vice Mayor Hack’s idea about bringing the committee group back together was a good idea and having the police involved would be worthwhile along with city staff.  He said that group could come up with a solution or alternative options. 

He said if the Commission did not do anything about this issue and there were problems now and again, the people who were concerned about the overregulation of their businesses would suffer because people would not come downtown.  If they did too much, those same businesses might suffer.  He said the challenge was how they find the balance between public safety and being overly regulatory.  He said he did not have an interest in being over regulatory, but he also had a great interest in not being blasé about the issues which were real issues from time to time.

Mayor Amyx said rather than hearing the same comments with the issue of special use permits, he suggested the Commission direct that group to meet and discuss issues related to entertainment licensing and special use permits to see if there were any other items of concern.

Commissioner Rundle said the Vice Mayor was dead on in her comments about the size of a group and the ability to get things done.  However, the entertainment legal group with the constituency, he assumed touched on quite a few people and an area of expertise.  He said he would welcome, at least, that one addition. 

Commissioner Schauner said one concern he had was this with along a number of items out there were on for future work and there had to be some way to track the progress this issue made.  He said it would be a challenge for staff to balance this activity with a lot of other things, but this issue was important enough to try and deal with this issue with some urgency. 

Moved by Amyx, seconded by Hack to direct staff to conduct the appropriate meetings with interested parties and report back to the City Commission.  Motion carried unanimously.   

(15)

At 9:40 p.m., it was moved by Schauner, seconded by Hack, to recess for 10 minutes.  Motion carried unanimously.

The Commission returned to regular session at 9:50 p.m.                          

Commissioner Schauner said what he believed the City Commission’s goal was to make downtown and other parts of town as safe as they could for the general public, but that should be the Commission’s guiding statement whether it was club licensing or entertainment venue licensing.  He said what he thought he read across the Commission’s faces was an agreement that was in fact their goal.

Mayor Amyx said that was the Commission’s goal.

Receive draft ordinance and staff report concerning Temporary Special Events permits

John Miller, Staff Attorney, presented the staff report.  He said staff was proposing enacting a Temporary Special Events Permit ordinance to allow the City to regulate the location and time frame of special events on private property within the City.  The previous City ordinance regulating special events was not included in the adoption of the 2006 Development Code and the proposed ordinance would remedy the omission.

This ordinance would be placed in Chapter 6, Business License, Taxes and Regulations and was consistent with what the City had done in the past in with respect to special events on private property.  The City was proposing an increase on the administrative fee from $10 to $50 and an increase in the review fee for events requiring City Commission approval from $25 to $100.  The permit would be issued by the Planning Department similar with Temporary Use Permits that staff had done in the past.  The ordinance replaced the current Christmas Tree Sales in, Chapter 6, Article 15, of the Code of the City of Lawrence.  He said staff essentially took what was in the previous development code and readopted it and placing it in the business licenses and taxes section of the City Code. 

Mayor Amyx asked if this temporary special events permit applied to private property and not for the sidewalks in downtown Lawrence.

Miller said correct.

David Corliss, City Manager, said this particular permit was not an accidental omission to the adoption of the development code last year, but an intentional omission and staff was going to be working with private property owners so they would site plan their property to allow for those types of temporary events.  He said that idea did not work well and those private property owners did not know about this requirement or altering their site plan.  He said there was one individual, staff was aware of that had a concern.  He said it made sense to have this type of licensing requirement for those events. 

Vice Mayor Hack asked to review the application process.

Miller said the Planning Department would receive an application to use private property.  The Planning Department would then check with Police, Fire/Medical, and Public Works Departments regarding the location for that site.  If there was something that needed Commission approval, then that would come to City Commission. 

Sheila Stogsdill, Acting Planning Director, said staff was taking the opportunity to make it a more streamlined process so staff had developed a check list that would identify the standard conditions.  The property needed an approved and implemented site plan.  She said over the years staff had developed a number of standard conditions.  If the applicant needed a temporary sign, that would require a temporary sign permit from Neighborhood Resources.  If the applicant was going to have a tent, there was a whole set of specific fire codes related standards that would be applied.  She said her staff was working with those departments to see if there were any additional conditions needing to be included, and the check list would be electronic and it would be an email notification to those departments with the plan attached so that paper was not being routed for a week and storing paper forever.  She said staff was hoping it would be an improved process for the applicants as well.  She said often times there would be additional licenses required, the City Clerk’s Office issues the Transient Merchant License.  If it was an out of state vendor, that vendor also needed to get a County Transient Merchant License and all of that information would be on the check list and should be fairly transparent.

Commissioner Highberger asked if this permit would cover a broader number of events than under the old requirements.

Stogsdill said no. 

Commissioner Schauner said if a local bank wanted a boat display on the weekend on their private property, would this be the avenue they used rather than coming to the Commission.

Stogsdill said if the bank was on a commercially zoned piece of property.  She said they had seen banks in the past because they were on office zoned property and the code specifically identified it as being a use that was permitted on commercial or industrial zoned property with an approved site plan.  If the bank was in a commercial district, it would all be administrative and if they were in an office district, they would need to come to the Commission because it would not meet that standard.

Commissioner Highberger said for instance an East Lawrence Neighborhood Party was on a private parking lot once a year.  He asked if that would require a permit under the Temporary Use Permit under the old code and would it be required to do this.

Stogsdill said it was not and thought those were generally considered part of the non profit.  She said there was a type 1 that did not require any permit and typically for church picnics or school picnics that were on their own property and staff would not typically have permitted that activity. 

Vice Mayor Hack said she knew the Planning Commission was dealing with a use on Wednesdays at 9^th and Iowa for a Farmer’s Market.

Stogsdill said that was actually just a Planning Department review and did not go to the Planning Commission.  Staff had indicated under this permitting scheme was one permit was a 14 day duration and could do it 2 days out of the 14 or 14 days out of the 14.  She said there were other vegetable sales in the past that had used this permit for a period of 8 weeks continuously.  She said that would be an option although location was going to be the determining factor because of the setbacks and still maintain circulation and required parking.  She said they were working with the Farmer’s Market to find an appropriate location.  She said the Farmer’s Market might want to go through a more permanent site plan process to have that occur longer than the 8 weeks out of the year, but that could be a bridge to that. 

Vice Mayor Hack asked if that process would be administratively done.

Stogsdill said yes.

Commissioner Highberger said he gave the example of the East Lawrence Neighborhood picnic which took place on private property, in the exceptions for the special events not requiring a permit was for events conducted entirely on private property owned or leased by a sponsoring organization as a permanent facility and the event had to be over by 9:00 p.m.  He asked what would happen under this.

Stogsdill said they would technically need to get a permit.

Commissioner Highberger asked if they could take it back because that was one example of things that would slip through the cracks.  He said he did not want to put restrictions on neighborhood traditions and asked to table this item to tweak the ordinance a little bit.

Moved by Schauner, seconded by Rundle to extend the meeting to 10:20 p.m.  Motion carried unanimously.

Doug Holiday, Biggs BBQ, said he wanted to discuss his problems with Ordinance No. 8089.  He said when KU went to the Final Four, he and his partner discussed what type of fun event they could plan for and decided to have a truck with big screens in their parking lot and would sell beer, food and would be a great time.  He said the Kansas Athletic Association thought it was a great deal.   He went to apply for his liquor license, but on the way he had to get a zoning license, and was told to discuss the event with planning, and said there was no way to have that event.  He said he thought it would be a worthwhile venture and would be a lot of fun. 

He said there had been a lot of comments about revenue that came from restaurants.  He said for every $100 that went into a local restaurant such as his, $68 would go back into the community which was a study done in Andersonville, Illinois in 2004.  He said for every $100 that went into a corporate restaurant, $43 went back to the community.  

Vice Mayor Hack said there was a time issue and the City Commission was not meeting next week and asked if the Commission agreed the ordinance needed to be amended in order not to create unintended consequences, but declare an emergency, and pass the ordinance on first and second reading.

Commissioner Rundle asked if there was an event that would occur before the 27^th.

Corliss said Holiday’s event.  He said Holiday probably wanted to start the process and might want to make commitments to proceed.  He said that was a good example where everyone had a great time, was safe, and had good access.  He said Vice Mayor Hack’s comment about proceeding with first and second reading was helpful to Holiday’s event with the understanding of Commissioner Highberger’s concerns and staff follow through on that concern  for an appropriate exemption or means for not for profit events the City wanted to encourage.  

Commissioner Schauner said there was no point in not adopting the ordinance on first and second reading and the Commission could go back to address the issue with neighborhoods.

Moved by Hack, seconded by Schauner, to declare an emergency and to adopt on first and second reading Ordinance No. 8089, pertaining to temporary special events and repealing Article 15 of Chapter 6, pertaining to Christmas Tree Sales.  Motion carried unanimously.                                                                                                                                     (16)

Receive status report on the siting of Westar electric power poles and lines along Maine Street.  An interested parties meeting will be held Saturday and a status report will be provided and posted.  City direction on the siting of the poles in the City’s right-of-way (east or west side of Maine Street) is being sought by Westar.

David Corliss, City Manager, presented the staff report.  He said there was a letter from the hospital’s consultant regarding a possible resolution.  Staff was working on a tree preservation ordinance that was still very much in its research stage, but staff was getting a good comprehensive view of the ordinance before beginning discussions again with the City Commission and also with a number of people in the community that were interested so there were clearer standards and criteria for the use of City right of way regarding tree preservation.  He said it was not a model of how staff wanted to handle this issue, but gave credit to the Parks and Recreation staff that identified it as an issue and there was interest in the neighborhood about tree preservation.   

Mike Bowman, Huxtable and Associates, said he was speaking on behalf of Lawrence Memorial Hospital to give the City Commission a brief update on the routing the power poles. 

He said the first three phases were happening simultaneously on the hospital.  The most major area that would be affected was the power plant which they would be doubling the size of the existing power plant, upgrading the electrical systems, as well as the heating and cooling systems for the hospital and doing a major upgrade of the emergency power system. 

He said square footage wise, the largest expansion was on the east tower where they were filling out the footprint of the hospital and adding a new emergency department on the first floor, extending ICU and CCU coverage on the second floor, and expanding mother and baby on the third floor. 

The current service that fed the hospital came through the alley, went through a tunnel, and fed service in the basement.  As part of the contract, they were putting a new service in from the east and the new ambulance drive would be the new transformer and feeding a new service which that backed the entire hospital. 

He said that was the second point of new service that was coming in.  He said the third where the current emergency department, they would expand the surgery to 7 new surgery suites with room for two additional more.  He said they were also going to be bringing in another service from the north side. 

The geography of those services was creating the need to bring new power lines in.  In order to maintain certifications from joint commissions and NFPA (National Fire Protection Association) and other agencies that had jurisdiction the hospital strongly recommended there be two services coming from two different substations or two different power sources.  Currently, there was a feed coming down 4^th Street from the Lawrence Hill Substation and the 6^th Street Substation at 6^th and Kentucky.  Both of the feeds meet at the alley way and Westar could switch back and forth between the services should something happen to one of the feeds.  The problem was there currently were no power lines coming down one side and only one source of power on one side of the building.  He said they had to have the ability to have both feeds coming from both directions and subsequently they were going to have power lines at some route that needed to feed two services.  They were essentially adding 170,000 square feet and bringing more electrical services. 

He said there had been numerous discussions with several different groups and had met with groups representing the property owners of the 300 block of Maine and people representing the Pinckney Neighborhood Association.  Several concerns had been raised and they went back and looked at every conceivable way of bringing this power in with as minimal impact as possible.  He said to fiscally watch the money for the City, LMH was under a budget and some of the means they looked at were a large cost and the hospital could not afford to do it.  He said they looked at alternatives the Hospital could afford and justify and those two methods would be presented. 

First proposed was a hybrid method coming down the east side of Maine Street transitioning across the street to the west side and continuing down Maine Street.  The concern raised by City staff and property owners regarding trees were two large trees on the northwest corner of 4^th and Maine and the two large pin oaks would have potentially been damaged if going down the west side.  There were also some large trees down the street that would be affected by that routing.  He said should this route need to be explored they could potentially miss several of those tress resulting in a much less impact than originally thought. 

One of the routings the neighborhood suggested was an abandoned right-of-way for Alabama that was a big mystery for everyone on the legal status of that property.  He said it turned out the right-of-way was still abandoned and in possession of the City.  He said Westar gave them the cost of going that route and something that LMH would absorb the cost and were willing to explore that route. 

He said they were under a time frame and proposed to meet with the neighborhood organizations and any interested parties to discuss if there was any objection to that routing.  He said if they could reach a resolution within a two week time frame, they would be more than willing to proceed with that routing.  If it did not happen, they would propose to go to the alternate route and coordinate with property owners and city staff to make sure they had as minimal impact on the trees in that block.  

Chad Luce, Westar Energy, said with the original design there were large trees that would be affect and hopefully those trees would not need to be removed, but trimmed.  He said the poles could be adjusted north or south and could cross at a different point.

He said regarding the Alabama Street option, the plan was to go down the abandoned right-of-way and head straight over west onto 3^rd, thus avoiding those trees.  He said there was more cost for this option because of the tree removal and it would take more man hours because they would need to physically put thicker line on the current poles while the line was still energized so they could continue to serve the homes in the area.  He said it took a little more time to build around energized lines as opposed to building new construction.  He said there were a number of trees through Alabama and two large evergreens that would need to be trimmed or perhaps removed. 

Mayor Amyx asked if the Commission needed to give Westar and the Hospital two weeks to discuss with the neighborhood the plan along the Alabama Street corridor and only use the Maine Street option if they could not make the Alabama Street option work. 

Luce said Westar was very receptive to that idea.  He said the Kansas Corporation Commission that regulated Westar their tariffs were based on standard overhead services.  He said they were required to charge the cost differential between the underground and overhead service.  He said it was not that Westar was not trying to help the hospital.  In fact, the standard overhead service that Westar would provide the hospital, the revenues and the expansion would justify that so there would not be an additional charge.  He said when Westar deviated from the standard overhead service that was why the dollar figures started coming into play.

Steve Braswell, Pinckney Neighborhood Association, said they had several weeks of discussions about power lines and the tree issue and were pleased with the suggestions and two options that were brought up tonight.  He said all along they were pleased people were talking about this issue and taking an interest. He said all along there had to be a better way than taking out nice and mature trees, but he thought they had reached that point.  He said they highly supported the Alabama Street route, which was their suggestion.  He asked earlier what would make that not work.  He said it would be objections brought up by property owners.  He thought a number of people in the neighborhood and property owners on Maine Street had been involved so far and would be able to work with people being affected on Alabama Street.

Allison Roupe, Lawrence, said Richard Moran’s presented the City Commission with the tree conservancy list of ideas for ordinances.  She said in all the reading she had done through the ordinances they suggested, it seemed what was lacking was any kind of regulation about the types of trees that were taken out for any kind of construction.  She said she would like to see the City draft regulations concerning trees being knocked down.  She said for instance, 23^rd and Iowa, she was sure the pharmacy was not going to  built up to the edges, but they took out all the trees at the edge of the parking lot.  She said she did not understand the destruction for any purpose.  She said she would like to see some tree ordinance looked at in a swift manner because it was happening in development all through town. 

Moved by Schauner, seconded by Hack, to extend the meeting to 10:45 p.m.  Motion carried unanimously. 

Eileen Smith said she worked a lot in the energy industry and said placing wires overhead was traditional and people did not explore the alternative of placing wires underground and asked if grant funding was available or a fund could be developed.  She said there were a number of wires that needed to go underground such as in the downtown area because the wires in the alleys were congested and dangerous to some degree and thought that was an issue the City needed to explore in long term planning.  

Moved by Hack, seconded by Schauner, to receive the report and concurred with the recommendation from Lawrence Memorial Hospital to pursue approval, over the next two weeks, of a route along the abandoned Alabama Street right of way, with the second option being the zigzag route along Maine Street.  Motion carried unanimously.                               (17)

PUBLIC COMMENT:

Eileen Smith, Kansas Solar Electric Cooperative, said the Commission was familiar with the Kansas Solar Electric Cooperative’s plan to do 100,000,000 square feet of building integrative floatable tanks in Kansas.  She said it was 100,000,000 square feet per 100 counties and were starting out with phase 1 program that was through House Bill 2018 that was passed by Tom Sloan in 2003 which required about 10,000 square feet and 5 people to incorporate.  She said there were people at KU interested in forming a Kansas Solar Electric Cooperative and were hoping when it came together in Douglas County, to be a leader in this program. 

She said Commissioner Moline over the Kansas Cooperation Commission said they were not funding solar energy because there was no verifiable capacity.  She said that was what the registry was about.  She said it was not buildings that existed that had solar those were buildings that had 100,000 square feet to 50,000 square feet of accessible, un-shaded surface that was either southwest facing or flat. 

She asked the Commission what she needed to do for their endorsement, if she needed to form a committee, if she needed to get that issue on the agenda for the next City Commission meeting.  She said she would like to get a proclamation or endorsement.

Mayor Amyx said he would suggest recognition.

She said this program was new and nothing like this had ever been tried in this world.  She said this was non profit and they would not sell those systems. 

Allison Roupe discussed the Kansas River Expression of Soul Project down by the river.  She said the Jayhawk Audubon Society gave a letter to the City stating that it was on hold, but there were a number of students from KU with their axes working away on that project.  She asked if something could be done for that plan.

Adam Wood, Lawrence, said he had a few words to say about the proposed ban on open fires and grills in selected housing establishments.  He said he did not have any problem with the proposal, but it seemed whenever there was a problem in Lawrence, the solution was to ban it.  He said he understood this ban was being proposed in the name of safety which was a right and noble cause, but many things had been done in the name of safety that they now know should not have been done.  For instance, the Alien and Sedition Acts of John Adams and the Military Commissions Act of 2006, which were examples of things done in the name of safety and did more harm than good.  He said Lawrence was a great city, but regrettably it had its problems, but did not think banning any activity, for instance, the smoking ban or fireworks ban because that would not solve the problem, but create more problems.  He said Lawrence was a great City and would be a greater City with a little less bans. 

FUTURE AGENDA ITEMS:

03/20/07	NO meeting (Spring Break week)
03/27/07	Williamsburg special assessment public hearing Commission direction on KDOT safety projects (City staff is conducting a public meeting to solicit input on improvements to Iowa near Stratford and University Drive as the preferred safety project submission) Lawrence Association of Neighborhoods request concerning rental registration ordinance Request from Marie Stockwell regarding pesticide free parks
04/10/07	Seating of new City Commission
TBD	Salvation Army Site Plan and Rezoning; Retail Marketing Analysis Code provisions Consideration of Preliminary Development Plan for Mercato development, north of West 6^th Street, west of George Williams Way extended Direct staff concerning proposed special assessment benefit districts for the improvement of George Williams Way north and south of West 6^thStreet, including intersection improvements – TBD per applicant’s request Direct staff concerning sanitary sewer improvements serving property west of Queens Road, north of West 6^th Street (Baldwin Creek gravity line from pump station no. 45 to 48) – TBD per applicant’s request

Moved by Schauner, seconded by Highberger, to adjourn at 10:45 p.m. Motion carried unanimously.                                                                                                            

APPROVED:

_____________________________

Mike Amyx, Mayor

ATTEST:

___________________________________                                                                        

Frank S. Reeb, City Clerk

CITY COMMISSION MEETING OF MARCH 13, 2007

1. Purchase demo investigation vehicle – Fire/Med off H-GAC cooperative contract from Pierce Mfgt for $22,695.

2. Engineering Service Agreement – Water relocation 2^nd & Locust with Transystems for $21,278. 

3. Professional Engineering & Landscaping contract – Oregon Trail Add Park with Landplan for $40,100.

4. Authorize Payment – K-10 Corridor to KDOT for $40,000.

5. Resolution No. 6708 – Order Construction, 25^th St Terrace from O’Connell to E of Franklin Rd.

6. Resolution No. 6709 – Sale of real & personal property, RAM Co., 1995 IRB, principal amount of $5,555,000.

7. Annual Racial Profiling Complaint Report for 2006 – Police Dept.

8. Mortgage Release – 1617 Cadet, Russell Hopping.

9. Subordination Agreement – Lawrence Women’s Transitional Care Service Inc.

10. Waiving Water & Wastewater tap fees – Lawrence Habitat for Humanity & Tenants to Homeowners.

11. Mural – N exterior wall of NH Parking Garage, Spencer Museum of Art.

12. City Manager’s Report.

13. International Building Codes – Matrix Consultants Study.

14. Ordinance No. 8082 – 1^st Reads, penalties for weapons close proximity to Drinking Establishments.

15. Entertainment Licensing & Special Use Permit discussion.

16. Temporary Special Events permit.

17. Westar Electric Power poles & lines, poles in R-O-W, E & W of Maine.