[E-minutes] January 20, 2004 City Commission meeting minutes
Lisa Patterson
lpatterson at ci.lawrence.ks.us
Thu Jan 22 18:50:06 CST 2004
January 20, 2004
The Board of Commissioners of the City of Lawrence met in regular
session at 6:35 p.m. in the City Commission Chambers in City Hall with Mayor
Dunfield presiding and members Hack, Highberger, Rundle, and Schauner
present. Lawrence High School representative Jacob Gage was present.
CONSENT AGENDA
As part of the consent agenda, it was moved by Rundle, seconded by
Schauner, to approve the City Commission meeting minutes of January 13,
2004. Motion carried unanimously.
As part of the consent agenda, it was moved by Rundle, seconded by
Schauner, to approve the Public Transit Advisory Committee meeting of
December 18, 2003; the Library Board meeting minutes of December 30, 2003;
the Mental Health Board meeting minutes of October 28, 2003, December, 4,
2003, and December 30, 2003; and the Smoking Task Force meeting minutes of
December 8, 2003. Motion carried unanimously.
As part of the consent agenda, it was moved by Rundle, seconded by
Schauner, to approve claims to 195 vendors in the amount of $770,858.73.
Motion carried unanimously.
As part of the consent agenda, it was moved by Rundle, seconded by
Schauner, to approve the Drinking Establishment License for Jet Lag Lounge,
610 Florida. Motion carried unanimously.
As part of the consent agenda, it was moved by Rundle, seconded by
Schauner, to concur with the recommendation of the Mayor and appoint David
Horstman to the Convention and Visitors Bureau Advisory Board, to a term
which will expire July 1, 2007; appoint Sureva Towler to the Lawrence Arts
Commission, to a three year term which will expire January 31, 2007; appoint
Jim Sparkes to the Mechanical Code Board of Appeals, to a term which will
expire March 31, 2006; and appoint Janet Gerstner to the Neighborhood
Resources Advisory Committee, to a term which will expire September 30,
2006. Motion carried unanimously.
As part of the consent agenda, it was moved by Rundle, seconded by
Schauner, to place on first reading Ordinance No. 7739, annexing
approximately 1.033 acres of City owned property for the Riverside Pump
Station generally located North of North Minnesota Street (Miller/Wells
Acres). Motion carried unanimously.
(1)
Ordinance No. 7731, an amendment to Horizon 2020 revising the City's
Urban Growth Area (CPA-2003-3), was read a second time. As part of the
consent agenda, it was moved by Rundle, seconded by Schauner, to adopt the
ordinance. Aye: Dunfield, Hack, Highberger, Rundle, and Schauner. Nay:
None. Motion carried unanimously.
(2)
Ordinance No. 7733, exempting evaporator coils from mechanical
permits, was read a second time. As part of the consent agenda, it was
moved by Rundle, seconded by Schauner, to adopt the ordinance. Aye:
Dunfield, Hack, Highberger, Rundle, and Schauner. Nay: None. Motion
carried unanimously.
(3)
As part of the consent agenda, it was moved by Rundle, seconded by
Schauner, to authorize the Mayor to execute an agreement with the Kansas
Department of Transportation (KDOT) for the construction administration and
inspection of, Haskell Avenue Stormwater Mitigation Basin, in the amount of
$7,435.20. KDOT would reimburse the City for eighty percent of those costs.
Motion carried unanimously.
(4)
CITY MANAGER'S REPORT
During the City Manager's Report Mike Wildgen said the Codes Review
Committee recommended the adoption of the International Code Council set of
building codes. A public meeting would be held on January 28, 2004 followed
by a final committee meeting on February 11, 2004 to review the report and
passed along to the City Commission for their approval. (5)
REGULAR AGENDA
Receive requested report regarding Brewhawk and related downtown drinking
establishments.
Mayor Dunfield suggested addressing the Brewhawk's license issue
separately and then discussing bars in the downtown area.
Frank Reeb, Administrative Service Director/City Clerk, presented the
staff report. He said on December 9, 2003, the City Commission approved a
drinking establishment license for the Brewhawk. The condition on that
license was a staff review of the current three liquor excise tax returns
for the business. At that time there was some concern about the
establishment's ability to meet the food sales requirement because of its
location in the C-3 zoning district. He said since then he had the
opportunity to review those three liquor excise tax returns for the months
of September (partial), October, and November. In the staff memo that was
provided in the packet their receipts showed alcohol sales of about 44% of
the total gross receipts and non-alcohol sales of about 56% for that three
month period.
He said because those non-alcohol sales were fairly close to the 55%
food sales requirement some of the assumptions that would otherwise be made
with respect to looking at the retail liquor excise returns would not
necessarily be appropriate therefore additional review might be appropriate
in this case. He said when taking non-food/non-alcohol sales such as
cigarette sales from that non-alcohol number it would not take much to get
below 55% of the gross receipts for that three month period and as a result
the Commission might want to ask for more additional analysis, such as
reviewing some source documents. He said he had made a couple of
recommendations or options that the Commission might want to consider
assuming they were not comfortable with that 56% non-alcohol sales number.
Frank Tarantino, owner of the Brewhawk, addressed the Commission
about the retail liquor excise tax returns. He said the majority of sales
were non-alcoholic sales. He said he had a cigarette license last year, but
he no longer had that license because it did not benefit his establishment.
He said cigarettes were the only thing he sold other than food and alcohol.
He said he had made substantial financial commitments being in his
present location. Under City Code, it stated that 55% food sales were
required in the course of 12 months in the C-3 zoning district. He said he
was placed on a 3 month probationary period by the City Commission to see if
he had met that requirement. He said it was his understanding that liquor
establishments needed to report their liquor excise tax sales for the
previous 12 month period. He said he followed the procedure that every
restaurant/bar followed which was that he estimated what his food sales
might be. He said his point was that by placing him under a probationary
period, again pointing out that he had substantial financial commitments
made, if he was to be placed under another probationary period, all the
Commission was accomplishing was handcuffing him. He said he was limited
to continue to risk his own money into marketing or whatever else he needed
to make a successful business. He said it was in the best interest of the
entire Downtown Lawrence that every store front was a successful business
and not vacant. He said he replaced a restaurant/bar that was failing and
his restaurant was extremely popular, suggesting that his business would
increase. He said any other further probation or other requirements would
hinder his business and he asked the Commission to respect the city
ordinance that he applied for his license under.
Dunfield asked Tarantino to explain how the probationary period tied
his hands or hindered his business.
Tarantino said while applying for his license, he spent certain money
to establish what he needed to apply for a license. He said he spent a
substantial amount to open up his business. The problem was that whatever
the dollar amount was such as $1,000 or $2,000 a week in advertising, he was
not willing to spend. He said anyone with an advertising background
understood that a person could not spend a dollar on Monday and expect to
get that dollar back on Tuesday. He said advertising was a long-term
investment. He said his lease was approximately five years and could be as
long as thirteen years. He said he could not see the risk at spending that
much money.
He said he was trying to create a place that was popular with great
food for all age groups at all times of the day. He said he served food
until 2:00 a.m. and there was no other restaurant in a four block area that
served food until that time. He said the City Commission was hindering him
in spending any further dollars and that was anti-business by doing that.
Austin Trombley spoke in support of the Brewhawk. He said on those
occasions when he did drink the Brewhawk was one of the few places he went
with his friends. He said it was one of the few places that a person could
go to in Lawrence after 10:00 p.m. and not need to wait in line.
Lisa Day spoke about crime in town that resulted from the bars in
town. She said many people could not get the police to respond in under 40
minutes, not that it was the Police Departments fault, but because of all
the crime resulting from the bars.
She recommended the City follow the example of other cities and enact
laws closing some bars at earlier times because many cities were having
success in reducing their crime rates in that way.
Noah Watkins said in response to the previous speaker, by removing
this bar it was not going to prevent another bar from taking its place. He
said he did not think this issue should be judged with the issue of crime
involved.
Day said she was not advocating closing any of the bars, but closing
those bars earlier in the evenings to reduce the crime rate. She said she
was not talking about restaurant/bars, but the drinking establishments where
there were a lot of problems resulting in a higher crime rate.
Commissioner Highberger said he did not want to place unreasonable
burdens on any local business, but the name of Tarantino's establishment
suggested that selling food was not his highest priority. He said he had
more complaints about how Tarantino's patrons behaved around this
establishment than from any other place downtown. He suggested requiring
further information regarding those food sales so the Commission could
determine if the 55% food sales was being met.
Commissioner Hack asked Tarantino to explain his relationship with
his business neighbors.
Tarantino said the first month he opened and before he was opened,
there were complaints about vomit, urination, and cigarette butts in the
area. He said there was a meeting with the City Manager, himself, and
business owners in the area regarding those complaints. He said as the
complaints continued, he video taped that the area was cleaned up at night.
He said his neighbors in the area asked him to make sure he had people at
6:00 or 7:00 a.m., to clean up the sidewalks. He said his response was that
he did not know why he needed to do that when at 3:00 a.m., an hour after he
closed, he made sure everything was cleaned up. He said he was in his bar
until 4:00 a.m., and he noticed people walking up and down Massachusetts
Street at that time and those people had not been at his bar. He said he
had not received any complaints since a week before the meeting with the
City Manager which took place in October. He said he was trying to work
with all his neighbors.
Commissioner Hack said she had received comments that things had
gotten better in terms of the cleanup. She asked Tarantino if he was now
open for lunch.
He said yes. He said he and his manager ran the place all day and
night. During Christmas break it was hard for them to be there every day.
During the school year when everyone was in town they were open everyday
from 11:00 a.m. until 2:00 a.m., and Sundays, noon to 2:00 a.m. He said a
majority of his business did not happen until 4:00 p.m. and on. As far as
downtown, most of the shops close at 6:00 p.m.
Commissioner Hack asked about whether the menu discussed in September
was the same now.
Tarantino said yes, but there were a couple of changes. He said they
now offered 22 sandwiches, New York style pizzas, 6 salads, and
approximately 8 to 10 appetizers which that menu was sold until 2:00 a.m.
Commissioner Schauner addressed one of Tarantino's earlier comments.
He said his recollection of the City Commission's deliberation concerning
this matter was that they were uncertain about the prospect of the 55% food
sales requirement. He said what the Commission proposed was something short
of a one year license and in fact that was an agreeable term at that time.
He said tonight he was hearing that wasn't an agreeable term and that
Tarantino should have been given a full year to show compliance.
He said it struck him that the numbers were so close, but he would
like to explore one of the options that Commissioner Highberger had
suggested as a way to further review those sales numbers and extend the
probation.
He said the greater issue was what the character of downtown was
going to be. He thought that the Commission needed to treat Tarantino's
establishment and other drinking establishments with a food requirement in
the same fashion. Any other applicant would need to meet the same food
requirement and he was not trying to single Tarantino out for better, worse,
or different treatment.
Tarantino concurred. He said he thought he should be treated the
same as all the other drinking establishments. He said when he decided to
open a restaurant and bar in this area he met with the City Clerk to find
out the requirements and what the current law was. He said he felt he was
not being treated fairly under the current law. He thought he was singled
out under the current law where other drinking establishments had been
approved under. He said he was being treated differently than everyone
else. He said Commission Schauner made the comment that he should be
treated the same as other drinking establishment, but what Commissioner
Schauner was saying and doing were two different things.
Commissioner Schauner said when this was discussed some time ago, the
choices were either granting the drinking establishment license with a
probationary period or not granting that license at all. Again, he said his
recollection was that was an acceptable alternative and now Tarantino was
saying something different.
Tarantino said he met the probationary period. He said he understood
the Commissioners' concerns at that time and he had been completely
agreeable to those terms, but now he had met that probationary period and
now the Commission wanted to take it further.
He said when in a business situation when looking at the laws, from
an entrepreneur's point of view, a person could evaluate the risk that would
be taking to make decisions. If the laws were going to change constantly,
then a person could not continue to play the game.
Vice Mayor Rundle asked Corliss if there was anything in the code to
preclude the City Commission from investigating any bar that was under the
food requirement or did they need to wait for their license renewal time.
Corliss said this was a zoning restriction and the zoning restriction
did speak to gross receipts for a calendar year. He said when the City
Commission approved the drinking establishment license for this particular
establishment, the Commission approved the drinking establishment license
for the Brewhawk conditioned on staff review of the first three liquor
excise tax returns. He said the City Commission had conditioned that
license pursuant to this City's laws and if that condition was not
satisfactory, the Commission could continue to review it. If looking at
other establishments within C-3 zoning district that fall under the food
sales requirement, the Commission might want to look at the entire calendar
years receipts.
Commissioner Hack asked Reeb to review when a business had received
their state drinking establishment license. She said if this was a zoning
issue, she asked how that was different in terms of this license versus any
other drinking establishment. She asked Reeb to review what the
Commission's ability was to give or not give a drinking establishment
license.
Reeb said one of the conditions to receive a City license was a copy
of the State license. At the meeting in September 2003, Tarantino provided
a copy of that State license however, the City Commission had some concern
about the establishment ability to meet that food sales requirement on an
annual basis. He said rather than wait, since they did not have any liquor
excise returns to look at for the previous 12 month period and rather than
wait for an entire year, the Commission asked to see those liquor excise tax
returns over a three month period. He said the Commission could make some
further inquires and condition the license beyond what was already done.
Commissioner Hack said in establishments that were similar to this
one and were not grandfathered in, she asked how that 56% food sales compare
to those other establishments.
Reeb said that 56% food sales did stick out because it was low. He
said when looking at other establishments retail liquor excise tax returns
(12 months) the non-alcohol sales ranged from approximately 70% to upwards
of mid 90%.
Mayor Dunfield suggested continuing the probationary period for
another 3 months and re-examine the sales at that time. He said it was not
unreasonable to ask that this establishment demonstrate that it was headed
in the right direction.
Vice Mayor Rundle asked if someone was in violation of the zoning
regulation, the City's inspectors would require that those violations be
corrected.
Commissioner Highberger asked if the suggestion was to look at
further verification of actual food sales.
Mayor Dunfield said he would prefer to simply monitor those sales for
another three months rather than going back and examining those receipts at
this point.
Commissioner Schauner said he did not have any problem continuing the
probationary period for another three months, but if the numbers were still
marginal, that the liquor purchasing invoices and sales invoices be
examined. He said they would not examine those records unless it was under
60% food sales.
Commissioner Hack said she was struggling with this issue because she
appreciated the concerns about protecting downtown and wanting to have a
good mix of uses, but she also thought Tarantino had a good point about
being treated consistently as others. She said the Commission had talked
about consistently enforcing the City's laws, but the Commission was flying
in the face of that thinking in this particular situation. She said that
did not mean that she was not concerned about the 56% food sales because she
was, but she agreed with Tarantino in that would the alarms had gone off if
it were 57% or 60%.
She said she was not comfortable at setting a number because that was
making a decision on the fly with no basis. She suggested shortening the
probationary period to two months out of fairness and understanding of the
business situation. She asked why would a person put up front advertising
dollars into something with no guarantee of that business. She did not
support that trigger number because it was not fair to the other businesses
that were in the same situation. She was concerned about the fairness issue
as well as the fairness to the downtown merchants.
Mayor Dunfield said the trigger would not pull the license, but would
trigger an additional audit.
Commissioner Hack said she did not have a problem incorporating that
audit into future businesses concerning this issue, but not on this
particular establishment because of equity issues.
Vice Mayor Rundle said he would address those concerns when reviewing
the rest of their agenda. He said people should be treated equally, but he
thought the Commission should enforce this issue vigorously.
Commissioner Highberger said he was less concerned about establishing
another probationary period then verifying those numbers. He said he
preferred to see actual food sales and if there were substantial food sales
then there would be no basis for action.
Commissioner Hack said Tarantino stated that he was not selling
anything else but food and alcohol. If looking at the numbers, in November
food sales were 63.2%.
Mayor Dunfield said if that trend continued, then three months from
now the Commission would see a much more favorable number and would not
require staff to perform that type of analysis.
Commissioner Schauner asked Tarantino if there was another
probationary period, would Tarantino prefer two or three month probation.
Tarantino said he refused to answer that question. He said he did
not want any probationary period and it was up to the Commission to make
that decision.
Reeb said that it was helpful to specify the review of specific
returns as opposed to a length of time.
Moved by Schauner, seconded by Rundle, to further condition the
Brewhawk drinking establishment license on review of retail liquor excise
tax returns for the next three reporting periods with the further condition
that if the non alcohol sales are less than 60 percent the City Clerk's
office was to do a more exhaustive review at that time. Aye: Dunfield,
Rundle, and Schauner. Nay: Hack and Highberger. Motion carried.
(6)
Reeb discussed the staff report on the City of Pittsburg's
enforcement of its food sales ordinance. He said the City of Pittsburg's
food sales ordinance was a different type of ordinance than the City of
Lawrence had in place. He said Pittsburg's ordinance was enacted to address
underage drinking and that ordinance was enforced through their Police
Department. He said a small number of police officers were trained by the
Kansas Department of Revenue Auditors to learn how to conduct a food sales
audit.
He said the burden of proof was on the establishment to prove to the
City that it was meeting its food sales requirement as opposed to the City
proving that it was not. He said he talked to the Chief of Police from the
City of Pittsburg as well as the Deputy Chief and they provided information
that was included in the packet. He said they might be reviewing their food
sales ordinance to place some procedures into the ordinance.
Brad Hoff, Management Assistant, presented a staff report that
outlined research in other communities concerning food sales requirement or
other rules and regulations that addressed downtown drinking establishments.
He said the City of Madison, Wisconsin, developed a tasked force on
downtown drinking establishments that looked at over saturation and underage
drinking and he said he was in the process of acquiring that report. That
task force made some recommendations to their City Commission and he was
inquiring, at this time, if any of those recommendations were being
implemented.
He said his report contained an inventory of the current downtown
drinking establishments and when they opened up. He said there were 46
establishments in the downtown area and two of those were caterer licenses.
He said 27 of those establishments were grandfathered. He mentioned that
three additional establishments were coming to Lawrence which were Pepper
Jax Grill, Masonic Lodge Building, and Qdoba.
Dave Corliss said the League of Kansas Municipalities was planning on
testifying in regards to Senate Bill 254. He said the bill started out with
regulation of certain pyrotechnic activities in places of public assembly.
Part of that bill had to do with the authority of the Alcohol Beverage
Control Division to revoke a license if that establishment was not following
certain fire codes and other related codes. The League was attempting to
make the point that in most cases those regulations were enforced on a local
level. He said it also would be appropriate for the Legislature to consider
clarifying legislation that would allow for explicit statutory language as
far as the City's ability to license and condition drinking establishment
licenses.
Attached to the memorandum was language that municipalities in Kansas
had developed over the past few years in an attempt to clarify that issue
which related to the issue under discussion. He said they would be
encouraging the local legislative delegation to support that amendment to
that bill.
He reminded the City Commission about some of the history of Kansas
liquor laws. He said in 1986 the voters in this State approved liquor by
the drink that was then followed by the 1987 legislation that served as a
basis for drinking establishment regulations. The State enacted those laws
pursuant to the constitutional amendment and at that time, there was a 30%
food sales requirement. He said a 30% food sales requirement was seen in
some counties in Kansas. He said that was why the City of Pittsburg could
turn to the Alcohol Beverage Control Division to help train their Police
officers in the enforcement of food sales requirements. He said in 1992 the
voters in Douglas County removed that food sales requirement.
Commissioner Schauner said the City had the home rule authority to
increase or create a food sales minimum as a condition of granting a
drinking establishment license.
Corliss said correct and that was done through the City's zoning
ordinance.
Vice Mayor Rundle asked if that was language of the bill that was
under discussion.
Corliss said that was the language of an amendment that they hoped to
add to Senate Bill 254 which spoke to the Fire Marshall ability to enforce
certain firework activities in places of public assembly. It gave Alcohol
Beverage Control the authority to revoke licenses in regards to violations
of those activities. Municipal officials thought that the City's ability
went beyond that isolated issue responding to the tragedy. He said they
wanted to be able to regulate drinking establishments for other public
purposes as well, such as the neighborhood nuisance issues. He said they
were encouraging the legislature in addition to pursing that other bill
about fireworks inside public assembly and the ability to regulate bars. He
said they were asking the Legislature to clarify the City's ability to
license drinking establishments to condition those licenses and in some
cases revoke those licenses.
Commissioner Schauner said when looking at the Pittsburg material, he
said their greatest goal was to limit under age drinking. He said if a
restaurant was not selling at least 70% food, then it was illegal for that
person under the age of 21 to be in that establishment unless accompanied by
a parent or guardian. Commissioner Schauner asked if underage drinking was
something that was a problem in Lawrence.
Ron Olin, Chief of Police, said the intention of that 70% food sales
requirement was to keep minors out of establishments. He said Lawrence had
a substantial problem with minors in possession of alcohol or consuming
alcohol before turning 21 years of age. He said other statistics reflected
a number of OUI arrest which was high in that category. Fatality accident
numbers were often reflected by the use of alcohol.
Mayor Dunfield said this seemed to be a different topic than the
question of downtown drinking establishments. The underage issues would
not be related to zoning in anyway or any particular location within the
City. He asked if Olin had a sense of the Pittsburg Police Department's
view of that ordinance and was it a big burden for those officers to
enforce.
Olin said he did not believe it was a burden because it was up to the
establishment to prove to the Police Department that their meeting that 70%
food sales requirement. In that respect, it has limited the place that
people could drink in establishments within the city limits of Pittsburg.
Commissioner Hack said a lot of people were carded and it seemed that
a larger problem would be fake identification. She said the bar owners did
a lot of work to check identification.
Olin said with the advent of the Internet, it was very difficult to
determine if an identification card was valid without doing a computer check
of the numbers.
Commissioner Hack asked if the City Commission would be looking at
the enforcement of the current ordinance as well as looking at the issue of
future business.
Mayor Dunfield said he was open to discussing any of those issues
concerning downtown drinking establishments. He said those issues were: 1)
How the Commission would treat future applications; 2) How they would
enforce the current requirements; 3) Whether the City's current
requirements were sufficiently stringent or needed to be altered in some
way; and 4) What would happen to those grandfathered drinking establishment
licenses as ownership changed and the nature of those businesses changed.
Phillip Bradley, representing the Kansas Licensed Beverage
Association, addressed underage drinking. He said the State of Kansas had
an underage drinking compliance rate as measured by the Alcohol Beverage
Control of 82.6% in on-premise establishments. He said 82.6% of the time
the law enforcement officers took someone and tried to get a bar to sell
them alcohol, but that person was refused. The City of Lawrence, a few
years ago, was part of an independent survey in which they took people from
the age of 21 to 26 and sent them to establishment in an attempt to purchase
alcohol. He said in that survey, 95.8% of all those attempts to buy alcohol
were refused and those were people of legal age. He said in underage
drinking the emphasis had moved to off-premise such as convenient store and
grocery stores. He said most recently a survey conducted out of Washington
D.C., said 67% of all those underage people said they got the alcohol from
their parents or another adult and not from a drinking establishment. He
said the City Commission needed to think about underage drinking as an
off-premise problem more than an on-premise problem.
As far as the legislation that was pending, he helped write Senate
Bill 254 with Senator Barnett from Emporia. He said the bill added another
category in which the ABC Director could revoke any liquor license for any
reason at any time. It also added another category that if a licensee
became convicted of criminal negligence then the license should be reviewed
and possibly revoked. It did not say that for zoning requirements the ABC
Director should take that out. He said what the League was proposing was to
try and counteract the effects of Biggs versus the City of Wichita case that
went to the Supreme Court of Kansas. The Supreme Court of Kansas said that
the drinking establishment act was uniform and therefore not able to be
opted out under home rule statutes and the cities were not allowed extra
privileges under that. He said when the City conditions a license they were
conditioning that use under zoning and not the liquor license.
He said there were a lot of cities that want what Lawrence had right
now, a vital and active downtown. He said there were many cities that were
trying to introduce those types of businesses that were being discussed in
an attempt to revitalize areas. Hospitality areas brought people to an area
and retail followed people.
Commissioner Dunfield said he did not hear any direct suggestions as
far as whether Bradley thought what the City Commission was doing was
appropriate or inappropriate.
Bradley said he would review the number of licenses that had came
about since the 1994 ordinance and of those licenses he would compare that
to how many other new business or square footage of retail had occurred
downtown. He said if that was disproportionate to previous times, then it
might need to be look at. He would also look at the number of those
licenses that were in the lower end of Chief Olin's list rather than the
upper end and were they the predominate amount or the minority and that
might give the City Commission a good indication whether they were doing the
right thing.
Babette Crawder said she owned an establishment below a bar. She said
she had to deal with issues, but it wasn't all bad. She said any type of
retail space that was filled was better.
Jeff Singer, owner of Eight-Five-One nightclub commented on underage
drinking in town. He said there was a major problem with minors drinking in
Lawrence. He urged the Commission to look into the underage drinking issue
because it was hurting those businesses that were in compliance.
He said another problem was the amount of free alcohol that seemed to
be flowing in some drinking establishments. He said the State did not get
any money by those establishments serving free alcohol and his business
could not compete with that. He asked the City Commission to enforce the
laws so those businesses that were in compliance could compete.
Jackie Becker, co-owner of a business in town, spoke in support of
those establishments downtown. She said in her business they booked
concerts in seven of those bars. She said they worked hard to bring people
all around the United States to come to Lawrence to perform. She said
alcohol was vital downtown, but it was also the club or the venue that had
live music.
Patricia Sinclair commended Singer for his ethical approach to
operating his business. She raised five points which were:
1. There appeared to be no legal basis for the claim that 25 drinking
establishments in the C-3 downtown district were exempt from the 55% food
sales requirement. She strongly objected toward staff referring to those
businesses as being "grandfathered";
2. The connection of existing licensees as they related to those in 1994 was
murky and needed investigation. The use of the term "grandfathered" was
confusing and inappropriate and should be replaced by the term
"non-conforming use" either legal or not;
3. The City Commission needed to take immediate steps to limit the number of
drinking establishment's downtown. The problem was not just underage
drinking, but included the behavior of patrons outside the bars;
4. Broaden and strengthen licensing procedures for all drinking
establishments even if it meant adding staff for this purpose and she
expected that it would mean additional staff; and
5. Citizens had a right to inspect public documents under the Freedom of
Information Act within a reasonable time frame and circumstances.
Sinclair said she had been denied access to documents related to this
issue despite her direct inquiry two weeks ago. She said she was also not
notified of those documents that were prepared by Hoff nor was she given the
courtesy of being told that this issue was on the agenda tonight. She said
she came to the City Commission meeting ill prepared because she was not
able to examine those documents.
She said there was nothing in the City Code under "Beverages" or
"Zoning" that spoke to businesses that had a drinking establishment license
at the time Ordinance No. 6527 went into effect in 1994. When other
measures were introduced such as the registration of rental property, the
zoning code made specific provisions requiring the registration of any
existing non-conforming uses with the Planning Department within 90 days.
She said this food requirement had no such provision in the City Code. When
examining those documents, those documents did not reveal any notion of
exempting all licensed drinking establishments from the new food
requirement.
She said the zoning portion of the code (20-1453 - Licensed Premises,
Restriction in C-3 Zoning District) stated:
1. The licensed premise use shall be required to derive from the sales of
food for consumption on the licensed premises not less than fifty-five
percent (55%) of all the licensed premises' gross receipts for a calendar
year from sales of food and beverages on such premises;
2. The City Manager or his or her designee shall establish an administrative
procedure for the investigation and enforcement of this requirement that
shall include the annual reporting of appropriate sale and receipt
information from licensed premises governed by this Section; and
3. The expansion, extension, enlargement, or alteration of a non-conforming
use created by the requirements of this Section shall be governed by Article
13 of this Chapter.
She said when looking at the December 7, 1993, City Commission
meeting minutes it stated: "David Corliss, Assistant City Manager, presented
a report regarding possible zoning text amendment concerning bars and
taverns in the downtown area. After review of zoning ordinances from other
communities, Corliss recommended the best tool to control the establishments
of bars in the downtown areas would be a food sales requirement. Under the
proposed ordinance, existing bars and taverns would be "grandfathered" and
future establishments in the C-3 zone would have to comply with the food
sales requirement." She continued on to say the following: "The
Commission concurred that it was the goal of the zoning ordinance
prohibiting future establishments in the downtown area from having a
substantial amount of business devoted solely to liquor sales."
She said in the Planning Commission meeting there was a lot a
discussion about what constituted a difference between a bar and a
restaurant in terms of percentage of food sales. She said the Planning
Commission felt that they did not have enough information and it was denied
and sent back to the City Commission.
She said in the March 29, 1994 meeting it stated: "After review of
the staff report on drinking establishments in the downtown area, Moody
suggested a 55% to 60% food requirement be placed on drinking establishments
in the downtown area."
She said the ordinance was voted on April 5, 1994 which stated:
"Amending section of the city zoning code concerning licensed premises
requiring 55 percent of food sales in license premises within the C-3 zoning
district." She said in that meeting or the meeting before nothing was
mentioned about the existing restaurants or any of the drinking
establishments.
She said there had been a lot of change in establishments that might
have been licensed as restaurants in 1994. She said they were looking at a
pattern of restaurants turning into bars and she suggested that the City
Commission take a look at that.
Martha Perala said Lawrence had a rich, historical heritage, and
charm that was reflected downtown. She said downtown was a place to meet
friends and for students to call their own off campus.
She said there was danger on the horizon. She said licensing more
bars would detract from the small town charm. The exposure of students to
more drinking establishments rather than other healthier business
opportunities would go against Lawrence in the long run. She said there
would be more crime by people loitering. She said as a result, some
businesses might leave.
She said there was going to be stress on downtown when the 6th and
Wakarusa area developed. If there was a concentration of bars in one area
and commerce in the other, there would be a sliding of commerce to the other
area. The idea was not to do that because there needed to be a fair mix in
the downtown area that serviced everyone.
Arly Allen echoed what the previous speaker said. He said he came
from the Centennial district and that area experienced some of the effects
of the change in the middle of town. He said he thought the Commission was
doing a good job by their willingness to bring more restaurants downtown and
by raising this issue with the City, but the Commission was fighting an
economic battle. He said as the neighborhoods around the downtown area
changed and became more focused on rental properties and student living
areas, families leave. He said that was also reflected in the schools in
the area because there were not enough families in those areas to keep them
open. He said it was difficult to live in that environment because it was
more expensive, property taxes were going up and at the same time the
quality of life was falling. He said as the economic environment changed in
the downtown area, then the nature of the businesses changed downtown.
Maria Martin, Director of Downtown Lawrence and a downtown business
owner said downtown was mixed use and multi-purpose and she provided
examples of all of them. She said this mix was what made downtown viable.
She said this City needed to be active in not only maintaining and
protecting the vitality of Lawrence, but continuing to maintain and improve
on it as a destination place.
She said the Comprehensive Plan specific function was a downtown
which included the economic, physical, and aesthetic environment around
which the populace could develop an intense pride in the community, a focal
point by identification and drawing together for common interest, and a
meeting place where people could communicate and relax.
Mayor Dunfield said one of the major issues that had been raised was
the situation with the Paradise Café. That issue of the establishments that
had preexisting drinking establishment licenses before 1994 not having to
demonstrate the 55% food sales requirement. He asked Corliss if there was a
mechanism that the Commission could use to make that requirement of an
establishment when it went from one ownership to another or when it changed
the style of its operation.
Corliss said he believed there was a mechanism. He said the City
Commission might want to amend the applicable ordinance to clarify exactly
what conditions might change. He said staff had learned a lot in the ten
years about that ordinance and staff should work on a list of non-conforming
uses at the time of the adoption of the ordinance. At the time of adoption
of the ordinance, one of the selling points was that the existing businesses
would not need to do anything and they would be legal non-conforming uses or
in a vernacular they would be "grandfathered" in. He said that was
interpreted by himself and by the advocates for the ordinance at that time
to mean, not only would the requirement not apply to them, but then they
would not have to be audited. He said in retrospect, staff might want to
determine the food sales of all of the drinking establishments in the
downtown area and then if the Commission wanted to calibrate the changes the
Commission would allow for that, it might be something to discuss and
eventually consider legislation on.
Mayor Dunfield said essentially they would take that step they didn't
take in 1994 and go back and ask all of the C-3 establishments with drinking
establishment licenses what there current food sales status was. If that
was done, then there would be a basis to say those that were restaurants and
not bars could be asked to maintain that food sales requirement in the
future.
Corliss said the Commission should not allow the establishments that
had the license to go from a restaurant with high food sales to something
that was different. He said that was an important policy to wrestle with in
what that number would be. He said one thing learned in the proposed
changes to the zoning code was the important of the registration of
non-conforming uses.
Mayor Dunfield asked about the question of enforcement and the issue
of selective enforcement. Assuming it would be the Commission's desire to
do more enforcement of the 55% food sales requirement, he asked Corliss if
it would be required to enforce that universally. He said for example, if
the City asked the Brewhawk to provide the Commission with additional
information in terms of food sales, he asked if that raised a question of
selective enforcement if they did not ask the same thing from Tellers.
Corliss said selective enforcement was a label that was placed on
inappropriate enforcement of the laws. He said they did not want to
selectively enforce the City's laws.
Commissioner Hack said we value our downtown because of its mixed use
and wanted to emphasize the mixed use part of that. She said she was
looking at how to limit future bars with a minimal amount of food. She said
the Commission had granted a couple of variance that said as long as the
current ownership existed then they might be able to condition that part of
the ordinance conditioning drinking establishment licenses or variances as
contingent upon the existing licensee retaining their ownership.
She said the City needed to look at enforcing the current ordinance.
She said we did not have a way to monitor food, but it might be something
that could be borrowed from Pittsburg.
She said she did not want this to retroactively apply to existing
bars.
Commissioner Schauner said he noted a comment in the 1994 minutes
from Pat Kehde, former President of Downtown Lawrence, they found 21
drinking establishments between 6th and 11th street on Vermont,
Massachusetts, and New Hampshire. In 2004 in that same geographical
boundary there were 44 drinking establishments so that number had more than
doubled in about 10 years.
He said he thought that the It's Brothers incident, the Masonic Lodge
discussion, and the Brewhawk issue has raised concerns about retaining that
mix of appropriate uses downtown.
He suggested increased enforcement, regular enforcement, and regular
requirement of food and alcohol sales reporting was important. He also
wondered if 55% food sales, unless there was a two stage threshold, in this
overlay district then perhaps 55% food sales was not right. He said they
needed more discussion and this was a great opportunity for a study session
to see where there could be some improvement. The number of retail
establishments in the downtown area has dropped by about 50% in the last 10
to 15 years.
Commissioner Hack said the information from Madison, Wisconsin might
be helpful since she had heard comparisons between the two cities. She
said some legal boundaries by staff about what the Commission was able to do
would be appropriate.
Vice Mayor Rundle said he was not interested in making the
requirements more rigorous, at least not until it was determined if step up
enforcement accomplished that goal. He said he was not convinced that the
City's enforcement was adequate.
He said the music scene in Lawrence was extremely important. He said
the City has taken care to make sure the existing venues were not under risk
of being driven out of town. He said it was an economic driver of this
community, but also culturally for the people who live here and for the
events that took place here. Lawrence has for many decades been a place of
which musicians had grown and where concerts had been staged.
He said the biggest thing that the Commission could do to recognize
fairness was enforcement. He suggested following the model of Pittsburg
where more information was required from the vendor who chose to start a
business in the downtown area under the existing regulations and the ability
to perform spot audits. He said staff needed to be trained just as the
Pittsburg police officers were trained on how to do an audit that related to
alcohol beverage taxes. He suggested tracking food sales on a quarterly
basis rather than on a twelve month cycle.
He said another issue was that the City did not know when businesses
closed so we could not necessarily enforce the 6 month gap for someone
losing their license if we were not tracking those businesses.
He said at the study session he suggested looking at incentives and
other ways to try and promote the mix that the Commission wanted to see
downtown.
He had concern comparing Lawrence with Madison, Wisconsin, because it
was a much larger community. He was looking forward to that report.
Commissioner Schauner said if drinking establishments and others were
squeezed out of the overlay district there was not going to be a reduced
demand for that sort of activity in any college town and those activities
would spring up some place else. The difficulty was trying to find the
balance between those competing tensions for that mixed use downtown. There
was obviously a lot of demand for drinking establishments and restaurants
downtown. He asked how the Commission could balance those interests with
the other legitimate interest for the use downtown.
Commissioner Hack asked if they needed to think about redefining the
area to include portions 6th or 9th Streets.
Commissioner Schauner said it was starting to happen. He said he did
not live at Brandon Woods but if he did, he would be looking at a bar and
grill from his back window.
Vice Mayor Rundle said those regulations did raise the standard
downtown, but businesses knew that ahead of time and he did not think the
Commission was hurting them or putting obstacles in their path. He said
businesses need to create a business plan that they had a chance to succeed
under those circumstances in the C-3 zoning area.
Commissioner Highberger said he liked Mr. Bradley's idea of tracking
the square footage space downtown devoted to bars and restaurants. He said
if they started doing that now they could have some idea of what the trend
was.
He said he was interested in pursing the idea of having drinking
establishment prove food sales along as they could find a way that it was
not burdensome on the establishment and did not create a staff problem for
the City. He said it might be good to look at those existing fathered
restaurant/bar establishments and impose some prohibitions on becoming
strictly a bar.
Mayor Dunfield was in agreement on a study session concerning those
issues. He said the focal points for the discussion at the study session
would be:
1. The 27 grandfathered drinking establishment licenses and what their
actual status was as far as food sales;
2. If there was an amendment the Commission could propose to the ordinance
that would restrict the conversion of those which were restaurants into
future bars;
3. Various enforcement issues;
4. The actual food sale requirement itself and whether the 55% food sales
was the right number;
5. The appropriate distinction between a restaurant and a bar in terms of
the food sale requirements;
6. Proving food sales;
7. Tracing the square footage of bars; and
8. Information from Madison, Wisconsin
(7)
PUBLIC COMMENT:
During public comment Patricia Sinclair asked about a moratorium on
drinking establishment licenses. She said there were cases that were
pending where there was no application submitted. She had a concern about
drinking establishment licenses being granted contingent upon their State
license.
She also had a concern about the Brewhawk. She said in reading the
minutes it was confusing to her because it seemed that there was a previous
establishment and then they were taken over by the Brewhawk and she thought
they were operating without a license at that time.
Mayor Dunfield said to add pending licenses to the study session.
CALENDAR ITEMS:
The City Manager's Annual Performance Review would take place on
February 18, 2004.
Moved by Schauner , seconded by Highberger, to adjourn at 8:50
p.m. Motion carried unanimously.
APPROVED:
_____________________________
David M Dunfield, Mayor
ATTEST:
___________________________________
Frank S. Reeb, City Clerk
CITY COMMISSION MEETING OF JANUARY 20, 2004
1. Ordinance No. 7739 - 1st Reading, Annex 1.033 acres, Riverside Pump
Station, N of N Minn.
2. Ordinance No. 7731 - 2nd Reading, Amend Horizon 2020, Urban Growth Area
(CPA-2003-3)
3. Ordinance No. 7733 - 2nd Reading, Evaporator coils exempt from mechanical
permits.
4. Agreement - KDOT to construct & inspect Haskell Ave Stormwater Mitigation
Basin for $7,435.20.
5. City Manager's Report
6. Drinking Establishment - Brewhawk and related establishments.
7. Drinking Establishments - Downtown area discussion.
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January 20, 2004
City Commission Minutes
Page 27
_____________________________
Lisa K. Patterson
Communications Coordinator
City of Lawrence
PO Box 708
Lawrence, KS 66044
(785) 832-3406
fax (785) 832-3405
lpatterson at ci.lawrence.ks.us
http://www.lawrenceks.org
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