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HomeMy WebLinkAboutCC Minutes 1999-08-16IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL, MONDAY, AUGUST 16, 1999 AT 8:00 PM Regular Meeting: Present: Albert J. Boro, Mayor San Rafael City Council Paul M. Cohen, Vice -Mayor Barbara Heller, Councilmember Cyr N. Miller, Councilmember Gary O. Phillips, Councilmember Absent: None Also Present: Rod Gould, City Manager Gary T. Ragghianti, City Attorney Gus Guinan, Assistant City Attorney Jeanne M. Leoncini, City Clerk OPEN SESSION - COUNCIL CHAMBER - 7:00 PM Mayor Boro announced Closed Session item. CLOSED SESSION - CONFERENCE ROOM 201 - 7:00 PM • Conference with Legal Counsel - Pending Litigation Government Code Section 54956.9(a) Case Name: Charles Samuel v. City of San Rafael WCAB No.: SFO 0414616 SFO 0417782 City Attorney Ragghianti announced no reportable action was taken. ORAL COMMUNICATIONS OF AN URGENCY NATURE: PM RE: MILL STREET SHELTER - File 9-3-16 x 233 8:00 Melany Kramer, resident of San Rafael, discussed the recent arrest of the former head of the Mill Street Shelter, for driving under the influence. She stated she still believed there were abuses at the Mill Street Shelter, and asked the City to investigate. CONSENT CALENDAR: Councilmember Phillips moved and Councilmember Cohen seconded, to approve the following Consent Calendar items: ITEM RECOMMENDED ACTION 1. Approval of Minutes of Regular Meeting of Monday, Minutes approved as August 2, 1999 (CC) submitted. 2. Request for Amicus Participation: (CA) Approved amicus participation. - File 9-3-16 Beach Courchesne v. City of Diamond Bar, et al. California Court of Appeal, Second Appellate District Case No. B130233 3. Report on Summary of Legislation Affecting Accepted report. San Rafael (CM) - File 9-1 4. Resolution Amending Resolution No. 9726 Pertaining This item was removed from the to the Compensation and Working Conditions for the agenda at the request of San Rafael Police Mid -Management Association staff. (Three -Year MOU From July 1, 1999 through June 30, 2002) (MS) - File 7-8-5 5. Report on Bid Opening and Adoption of Resolution RESOLUTION NO. 10478 - Awarding Contract to Fahy Tree Service for RESOLUTION OF AWARD OF Emergency and Routine Tree Services (Bid OpeningCONTRACT TO FAHY TREE SERVICE Held on Friday, July 23, 1999) (PW) FOR EMERGENCY AND ROUTINE TREE - File 4-1-474 SERVICES (for 1999/2000). 6. Request for Authorization to Close Mission Avenue Approved staff recommendation. SRCC MINUTES (Regular) 8/16/99 Page 1 SRCC MINUTES (Regular) 8/16/99 Page 2 Between "C" and "E" Streets on Sunday, August 29th, From 11:00 AM to 5:30 PM for Annual Summer Concert at Falkirk Cultural Center (Cult. Aff.) - File 11-19 x 104 x 9-2-24 x 9-3-84 7. Resolution of Appreciation to Carol Adney, Falkirk Director (Cult. Aff) - File 102 x 9-2-24 x 9-3-84 8. Resolution of Appreciation to Rhonda Kutter, 0 10. Fwq City Volunteer, for Development of a New Canal Guide (Lib.) - File 102 x 9-3-61 x 235 RESOLUTION NO. 10479 RESOLUTION OF APPRECIATION TO CAROL ADNEY, FALKIRK DIRECTOR (Resigned 8/6/99) . RESOLUTION NO. 10480 RESOLUTION OF APPRECIATION TO RHONDA KUTTER, CITY VOLUNTEER, FOR DEVELOPMENT OF A NEW CANAL GUIDE. Resolution of Appreciation to Walt Kosta, Retired RESOLUTION NO. 10481 Police Captain (PD) - File 102 x 9-3-30 Resolution of Appreciation to Gene Pennington, RESOLUTION OF APPRECIATION TO WALTER P. KOSTA, RETIRED POLICE CAPTAIN. RESOLUTION NO. 10482 Retired Police Captain (PD) - File 102 x 9-3-30 RESOLUTION OF APPRECIATION TO HAROLD E. (GENE) PENNINGTON, RETIRED POLICE CAPTAIN. Resolutions of Appreciation to Outgoing Members RESOLUTION NO. 10483 of the Citizens' Advisory Committee to the Police RESOLUTION OF APPRECIATION TO Chief (COPS) (PD) - File 102 x 9-3-30 NEAL BERNARDI, OUTGOING MEMBER OF THE CITIZENS' ADVISORY COMMITTEE TO THE POLICE CHIEF (COPS). RESOLUTION NO. 10484 - RESOLUTION OF APPRECIATION TO CHARLES EDWARDS, OUTGOING MEMBER OF THE CITIZENS' ADVISORY COMMITTEE TO THE POLICE CHIEF (COPS). RESOLUTION NO. 10485 - RESOLUTION OF APPRECIATION TO GRETA FAGERLAND, OUTGOING MEMBER OF THE CITIZENS' ADVISORY COMMITTEE TO THE POLICE CHIEF (COPS). RESOLUTION NO. 10486 - RESOLUTION OF APPRECIATION TO JOSHUA FRYDAY, OUTGOING MEMBER OF THE CITIZENS' ADVISORY COMMITTEE TO THE POLICE CHIEF (COPS). RESOLUTION NO. 10487 - RESOLUTION OF APPRECIATION TO LARRY GASKIN, OUTGOING MEMBER OF THE CITIZENS' ADVISORY COMMITTEE TO THE POLICE CHIEF (COPS). SRCC MINUTES (Regular) 8/16/99 Page 2 SRCC MINUTES (Regular) 8/16/99 Page 3 RESOLUTION NO. 10488 - RESOLUTION OF APPRECIATION TO IRIS MAJANO, OUTGOING MEMBER OF THE CITIZENS' ADVISORY COMMITTEE TO THE POLICE CHIEF (COPS). RESOLUTION NO. 10489 - RESOLUTION OF APPRECIATION TO STEVE PATTERSON, OUTGOING MEMBER OF THE CITIZENS' ADVISORY COMMITTEE TO THE POLICE CHIEF (COPS). RESOLUTION NO. 10490 - RESOLUTION OF APPRECIATION TO JOHN THORNTON, OUTGOING MEMBER OF THE CITIZENS' ADVISORY COMMITTEE TO THE POLICE CHIEF (COPS). AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None SPECIAL PRESENTATIONS: 12. PRESENTATION OF RESOLUTION OF APPRECIATION TO RHONDA KUTTER, CITY VOLUNTEER, FOR DEVELOPMENT OF A NEW CANAL GUIDE (Lib.) - File 102 x 9-3-61 Mayor Boro introduced Rhonda Kutter, one of the City's volunteers, explaining Ms. Kutter was being presented with a Resolution of Appreciation for her work in publishing the Canal Neighborhood Resource Guide. He noted she had spent extensive hours over the past two years coordinating this effort, and distributing the guide throughout the community. Mayor Boro noted this was an excellent guide, and on behalf of the City and the residents of San Rafael, he thanked Ms. Kutter for the wonderful job she had done. Rhonda Kutter stated she had enjoyed the project, noting she had gotten to know her community in ways she had not known before, although she has been a resident of San Rafael for more than ten years. Ms. Kutter noted she had particularly enjoyed working with Library Director Vaughn Stratford, and Kay Niguchi, who also put in countless hours on this project. Ms. Kutter thanked the Councilmembers for the Resolution of Appreciation. 13. PRESENTATION OF RESOLUTION OF APPRECIATION TO WALTER P. KOSTA, RETIRED POLICE CAPTAIN (PD) - File 102 X 9-3-30 Mayor Boro introduced retired Police Captain Walt Kosta, reporting Captain Kosta was retiring after more than thirty years of service with the San Rafael Police Department. Mayor Boro stated Captain Kosta has been an exemplary Officer, having started out as a Police Cadet. He noted Captain Kosta had served as the Commander of the Marin Major Crimes Task Force, where he really made his mark. On behalf of the City Council, Mayor Boro thanked Captain Kosta for more than thirty years of very hard work on behalf of the City of San Rafael, and wished him a very happy retirement. Captain Kosta noted he had begun his career with the Police Department when he was nineteen years old, and stated he had enjoyed every day he was with the Police Department. 14. PRESENTATION OF RESOLUTION OF APPRECIATION TO HAROLD E. (GENE) PENNINGTON, RETIRED POLICE CAPTAIN (PD) - File 102 X 9-3-30 Mayor Boro introduced retired Police Captain Harold (Gene) Pennington, who had worked for the San Rafael Police Department for thirty-one years, noting Captain Pennington had worked in various aspects of the organization, most notably in the area of computerization. He stated Captain Pennington had done an excellent job for the City, and the Council was very proud to have had him as a member of the Police Department. Mayor Boro wished Captain Pennington much success in his retirement. Captain Gene Pennington stated it had been a privilege and a true honor to have worked for the citizens of San Rafael, noting this had been a great SRCC MINUTES (Regular) 8/16/99 Page 3 SRCC MINUTES (Regular) 8/16/99 Page 4 place to work, and a great place to live. 15. PRESENTATION OF RESOLUTIONS OF APPRECIATION TO OUTGOING MEMBERS OF THE CITIZENS' ADVISORY COMMITTEE TO THE POLICE CHIEF (COPS) (PD) - File 102 X 9-3-30 Mayor Boro explained the Police Department had a Citizens' Advisory Committee to the Chief of Police (COPS), noting some of the members were concluding their terms on that committee. Police Chief Cam Sanchez reported approximately a year ago the Police Department began a Citizens' Advisory Committee on Community Policing, with some of the members selected for two-year terms, and some for one-year terms. He explained that tonight the Council and the Police Department were honoring those members who were completing their one-year terms, thanking them for all they did to help him, and the Police Department, during the first year of this brand new project. Chief Sanchez introduced Larry Gaskin, and Mayor Boro presented him with a Resolution of Appreciation. Mr. Gaskin stated it had been a real pleasure, noting Chief Sanchez' enthusiasm rubbed off on everyone. He noted he was a firm believer in the Community Policing project, and believed the City would be seeing good things from the project in the future. Chief Sanchez introduced Joshua Fryday, a graduate of Terra Linda High School, explaining part of the project had been to select a student from each high school to serve on the committee. Chief Sanchez reported Mr. Fryday had represented Terra Linda High School very well, and had given him some great advice concerning youth issues, and how the Police Department could do a better job with the youth. Chief Sanchez thanked Mr. Fryday for his time, noting it was a rarity to see a man of his age give his own time in the evenings, and sit with him and discuss issues concerning policing and youth. Chief Sanchez stated he did not recall Mr. Fryday ever missing a meeting, and thanked Mr. Fryday for his dedication. Joshua Fryday stated he wished to commend Chief Sanchez and all those who supported the Community Policing program, noting he truly believed, from a youth's perspective, that Chief Sanchez and the entire Police Department, as a whole, had made incredible strides in bringing the community together, and in bringing the community to the government, making society in San Rafael a greater place. Chief Sanchez introduced Charles Edwards, who represented the Terra Linda area, and thanked him for his work on the committee. Mr. Edwards stated he appreciated not only being able to be of service in this program, but also the fact that he learned so much about the City, even though he has lived in San Rafael for over twenty-five years. PUBLIC HEARING: 16. PUBLIC HEARING - CITY -INITIATED AMENDMENT OF SECTIONS 14.03.030 AND 14.17.020 OF THE SAN RAFAEL MUNICIPAL CODE TO MODIFY REQUIREMENTS FOR ISSUANCE OF AN ADMINISTRATIVE USE PERMIT FOR KEEPING OF MORE THAN TEN (10) ADULT CATS, THREE (3) DOGS OR POTBELLIED PIGS OR MORE THAN TEN (10) SPECIFIED BIRDS, RODENTS OR REPTILES PER PROPERTY OR DWELLING UNIT, TO INCLUDE ADDITIONAL STANDARDS FOR ANIMAL KEEPING, TO ADD A DEFINITION OF "ANIMAL KEEPING" AND TO INCLUDE A PROVISION FOR AMORTIZATION OF NONCONFORMING PROPERTIES OR DWELLINGS CREATED BY THE REVISED REGULATIONS AND MODIFICATIONS OF SECTION 6.10.010 OF THE SAN RAFAEL MUNICIPAL CODE TO ELIMINATE THE CONFLICT WITH THE ADOPTED MARIN COUNTY ANIMAL CONTROL CODE REGARDING NUMBER OF DOGS ALLOWED PER PROPERTY (CD) - File 10-10 x 10-2 x 13-3 Mayor Boro declared the public hearing opened, and asked for the staff report. Community Development Director Bob Brown reported the revisions to the City's Animal Ordinance which were now before the Council were similar to those presented last February, at which time Council had directed staff to hold -off on an Ordinance related to limits on cat guardianship. Instead, staff was asked to pursue an investigation concerning one particular property in North San Rafael, where an alleged seventy-five plus cats were being kept, and to consider a possible Public Nuisance action. Mr. Brown stated staff had conducted an investigation, reporting the City's investigator, Gordon Templeton, had concluded the situation caused an impact; however, it did not rise to the area -wide impact necessary to be considered a Public Nuisance. Mr. Brown reported staff had also enlisted SRCC MINUTES (Regular) 8/16/99 Page 4 SRCC MINUTES (Regular) 8/16/99 Page 5 the assistance of the Humane Society and the County Health Department, and again concluded that the City and these other agencies lacked the administrative tools necessary to deal with the impacts of maintaining a large number of cats at a single-family residence. Mr. Brown reported that since staff was not successful with the possibility of a Public Nuisance action, they modified the Ordinance to allow for up to ten cats per dwelling, beyond which an Administrative Use Permit would be required, noting this was the type of process the City now used for keeping more than three dogs, and other domestic pets. Mr. Brown stated it was important to make clear that the requirement for the Administrative Use Permit process was not a ban on the keeping of domestic animals at numbers greater than the Ordinance allows, it simply created a public process by which the City, with notification of the property owners in the vicinity, could look at a specific environment, the number of animals kept, and the living environment, to make the determination as to how best to fit this type of use within a neighborhood. Mayor Boro invited public comment. Wendy Janet, resident of Terra Linda, stated she was concerned about some of the details in this Animal Keeping Ordinance, and how they would likely be applied to the particular multi -cat residence, which has already been identified. She would like to see the City take a community -minded and cooperative approach when dealing with pet owning residents, especially someone like the multi -cat owner, who she believed was actually an asset to the community, helping abandoned neighborhood cats. She suggested the City inform permit applicants, if they are denied a permit, which conditions they have not met, and perhaps give them a chance to correct the problem and to reapply for the permit. Ms. Janet noted one portion of the staff report states an applicant, if denied, might appeal to the Planning Commission, and/or the City Council, and she wondered whether that meant one or the other, or both? Referring to the permit requirements that may be imposed for identifying pets, she stated micro -chipping or tagging the cats was not always practical or feasible. She noted she had once taken a feral cat to the Humane Society for micro -chipping, and reported they will not micro -chip feral cats; in addition, she stated collars were known to be unsafe for cats, both indoors and outdoors. Therefore, she suggested Council review that requirement. Ms. Janet stated she was also concerned about the requirement for the containment of all cats on a property, as she felt 100% containment might not always be practical or feasible, even for those with the best type of fencing systems. She felt perhaps it would be more reasonable if the requirement for the residents who have more than ten cats specified no more than ten "free -roaming" cats allowed at any one time, or any number other than zero. Ms. Janet noted it had been stated at a Planning Commission meeting by at least one of the residents, as well as the Community Development Director, that there had been no improvement, and there was a lack of significant remedy of the situation. Ms. Janet stated she was a friend and associate of the property owner, and was frequently in that neighborhood, and during the last several months she had noticed a tremendous difference in the reduction of the number of free -roaming cats on that street, and the general tidiness of the area had really improved. She noted there might be droppings from wild animals, as the street does run adjacent to the Open Space, and there are a lot of wild animals coming down into people's yards. Ms. Janet believed that since the complaints about the cats began last year, the property owner in question had put considerable effort and expense into containing the cats, with thousands of dollars worth of fencing. She noted many other nearby households also have outdoor pets; therefore, it could not be assumed that every pet in the neighborhood belonged to Mrs. Bury. She wondered, in a permit situation, if the other neighbors' cats would be required to carry identification, as well, and how the City would determine whose cats were whose if the Ordinance goes forth. Ms. Janet stated, for the record, she wanted Council to know that Mrs. Bury had invited several of her neighbors to participate in mediation, which they declined, pointing out it was not a case of the Humane Society encouraging mediation with Mrs. Bury, as that had never been encouraged by the Humane Society to Sharon Bury. Ms. Janet stated that if Council does decide to pass this Ordinance, she hoped it would be applied in a fair manner, and would benefit everyone in the community. SRCC MINUTES (Regular) 8/16/99 Page 5 SRCC MINUTES (Regular) 8/16/99 Page 6 Katlyn Stranger stated she did not understand why no one was particularly interested in addressing the larger issue of people not being responsible for spaying and neutering their cats. She noted the issue of so many cats being constantly neglected and abandoned was such that people who care deeply about animals were taking up the slack, and that was why there were so many people in Marin County who have many more cats than they would normally keep, in order to save their lives, and give them the love and medical attention they need. Ms. Stranger noted her own child was in day care close to where the multi - cat household is located, and she often stops by to visit. She reported that over the past year she has noticed either no cats in the front yard, or perhaps two or three, at most. She stated the cats were consistently clean, and she noticed no smell. Ms. Stranger stated one of the main issues she really wondered about, for Mrs. Bury and for other people who have been taking care of more than ten cats, was whether they could be grandfathered in, with the passage of this Ordinance? She felt, since these people had not been in violation of the law up to this point, it seemed unreasonable to impose a law which makes them in violation. Regarding those people who would have permits, she asked whether they would be allowed to have up to ten cats that could be indoor/outdoor cats, roaming as any other neighbor might have, and how the City would know if there were more or less than ten cats, and whose cats they were. She believed this would be very difficult to enforce. Regarding those people who may have more than ten cats, but do not apply for permits, she asked if they were going to be criminals, wondering what would happen to them, what the legal response would be from the community and the Planning Commission, and how it would be enforced? Ms. Stranger also asked, if a person has those animals only on their property, and there are no activities offensive to the neighbors, then why would they need to have a permit, and who would even know about it to enforce it? Joe Marrino, resident of San Rafael, believed the larger picture was not just defining the pet limits but also included the issue of overpopulation, pointing out some people are irresponsible pet owners who end up dumping cats. The only ones helping are the cat rescuers who take the cats to a veterinarian to have them spayed or neutered and vaccinated to protect the health of the community. Mr. Marrino agreed that if there was a problem with odor emanating from Mrs. Bury's home, it had to be remediated. However, he pointed out this was a very unique area at the end of Las Ovejas, because it was Open Space, and there were particular problems associated with Open Space. Wild cats come down and go into the backyards looking for water to survive, just as deer and raccoons do. When these animals come down from the hills, some of them spray; in addition, some of the raccoons and other animals dig up the backyards and ruin the plantings. Mr. Marrino proposed two solutions: First, he reported he had distributed flyers around the neighborhood regarding an electronic device that emits sonic waves, noting they did not shock or harm the animals, and they were effective. He stated these devices would repel unwanted animals from an area between 2,000 to 3,000 feet, simply by plugging them in. He believed this was a harmless solution, as well as a practical solution. Mr. Marrino urged Council to include and health care vaccination, as part City would be saving thousands of an homeless, tortured way of life. a provision mandating sterilization of the proposed Ordinance, noting the mals from irresponsible owners, and a Ida Passamonti, resident of San Rafael, believed what the City was doing was creating a crime where none exists, for the purpose of getting at someone to resolve a complaint among neighbors. She noted the City had found there was no Public Nuisance violation, recalling Councilmember Heller, in a prior City Council meeting, had asked if there was no Public Nuisance, should the neighbors make the effort and direct an action for a Private Nuisance? Ms. Passamonti agreed that was the case here, noting she had been told the same thing regarding complaints she has had in her own neighborhood. She recalled she was told that if someone is playing a radio very loudly every afternoon, that was not against the law, and she would have to bring a Private Nuisance action. She asked why the City had not stated the same thing here, wondering why, instead, the City had tried to create a law to get at this one woman, in order to satisfy a few complainants? Ms. Passamonti asked how the City was going to enforce this law? She SRCC MINUTES (Regular) 8/16/99 Page 6 SRCC MINUTES (Regular) 8/16/99 Page 7 wondered if there should be a "grandfathering", pointing out they were discussing household pets, members of the household who had been there before the law the City was thinking of creating. She asked how the City could now state that household was against the law, unless it has a permit to live that way? She felt that if the City could grandfather otherwise unlawful second units, there was some grandfathering that was necessary in this instance. She also believed, from the point of enforcement, there was a grandfathering issue that might be a legal defense against the Ordinance. She believed what was going on in this (Ms. Bury's) household, and perhaps in others, was a substitution for the SPCA in San Francisco. She explained that if people in San Francisco have to give up their pets, they can go to the SPCA, which has a "no kill" policy, and they do not have to worry about their pet being killed if they have to give it up. However, in Marin County, there are only two choices; people can take a cat to the Humane Society, whose preferred solution is the "final" solution, or, they can abandon the cat where they think it might survive, such as in the hills, the Dominican College campus, or the Civic Center lands. Then it is up to the people who serve the community to make sure these cats are rescued, spayed and neutered, and if possible, cared for. She stated Ms. Bury was serving the need of the SPCA. Ms. Passamonti stated the City did not know the number of cats in Ms. Bury's household, as everything was based on unverified complaints. Ms. Passamonti urged Council to postpone acting on this Ordinance, suggesting the Councilmembers have legal counsel explain to them precisely how such an Ordinance would be enforced. She felt this was a "get Sharon" Ordinance, and she did not believe the Ordinance would work. Scott Hafner, resident of San Rafael, stated he was a member of the "silent majority" regarding this issue. He reported there was a stench that permeates several houses away from the house in question. He stated he appreciated the work staff has done in putting together this proposed Ordinance, and believed it was fair to the citizens of San Rafael, to the residents of the specific neighborhood, and to the animals in question. He encouraged Council's thoughtful consideration and, hopefully, passage of the Ordinance in question. Debbie Raphael stated she was the next door neighbor of the house in question, suggesting that if anyone had any question about odor, they should come to her home. She reported her family had moved into the neighborhood four weeks ago from Southern California, and while she was a firm believer in the public process, and had a good deal of faith in government, she has no personal freedom where she lives. She pointed out that during the heat wave, she could not open any windows or doors along the side of her home that is next to the house in question, as the stench was overwhelming. She noted she has had many visitors to her new home, and all of them have commented on the smell. Ms. Raphael reported she went to her next door neighbor, whom she described as a wonderful human being. She stated they talked about the smell, and her neighbor stated she would move the cat litter boxes away from the property line; however, Ms. Raphael reported that had not helped, noting that when the wind blows it does not matter if they are five feet from her house or twenty feet, the smell carries, and it is very intense. Ms. Raphael stated the feces level in her backyard was frightening, noting they have had many ill cats defecating in their yard, and she has a seven year old boy who runs in their ivy. Addressing what she considered to be the bigger issue, Ms. Raphael agreed with the earlier speakers regarding fairness. She noted she did not have any recourse, acknowledging this situation was not a Public Nuisance in the larger sense; however, she stated it did impact her personal freedom and quality of life. She stated although she could not prove that it was a public health hazard or a nuisance, it impacted her home, and she needed help from government in setting up a system where someone was accountable. Ms. Raphael pointed out that right now no one had to be accountable, because there was nothing on the books that gave staff the ability to go after people who are irresponsible. She believed people who were responsible would sign up and pay their one-time fee. She felt this Ordinance would set up a system of accountability, and believed that was the role of government. Ms. Raphael stated her neighbor, William D. Glenn, had been unable to attend this meeting, but asked that his comments be read into the record: "I am writing to endorse the City of San Rafael's adoption of the amendment revision of the City Municipal Code Section 14.17.020. This amendment makes eminent sense for this City and her citizens, and makes eminent and humane sense for the pets that live within its boundaries. We have lived SRCC MINUTES (Regular) 8/16/99 Page 7 SRCC MINUTES (Regular) 8/16/99 Page 8 in San Rafael for seven years, having moved from the East Bay. We have found City government here sensible and thoughtful, and we regard this amendment as a continuation of the thoughtful interventions government can make on behalf of her citizens, and in this case, their pets. Thank you for crafting this amendment, and for working to ensure its passage". Lyn Gladstone, licensed real estate broker, reported she gave up doing business in real estate several year ago to go into animal rescue, and now had an organization called All Creatures Animal Caring Society. She felt it was unfair, illegal, and unjust to pass an Ordinance without allowing a grandfather clause exempting Sharon Bury, the selected target of the Ordinance. She stated she was baffled that, as a governing body, Council could create a new law, or revise an existing law, because of one resident, and what appeared to be several vindictive, implacable, and very loud, complaining neighbors. She wondered, if the neighborhood was truly adversely impacted by this home, this woman, and her cats, why had the recent newcomers bought homes near hers? She noted, if the smell was that prevalent, one would think they would have smelled the smells before they made their purchases, during their many tours of the properties, and during the home inspections. She asked if the realtors had to disclose these so- called negative facts, pointing out that was a requirement of all realtors, if they are aware of anything at all that might adversely affect a property's value. Ms. Gladstone stated she has been to Mrs. Bury's home, and smelled nothing from the road or the sidewalk in front of her home. She reported, even inside the home, while there was some cat odor, there was nothing she would characterize as overwhelming or offensive. Ms. Gladstone felt Ms. Bury should be allowed to be exempt from any Ordinance Council might consider passing this evening. Penny Sommers, resident of San Rafael, stated she was very much in opposition to Council passing this Ordinance, for all the reasons that have previously been stated. She noted her own cats do not go outside, they are all spayed and neutered, they get their vaccinations yearly, and they get rabies shots, even though they do not go outside. She stated she considers herself a responsible animal owner. However, she noted there was not one morning when she looks outside on her patio that she does not see a minimum of two cats sleeping on one of her chairs or lounges. She noted there were plenty of stray animals, as well as owned animals that are not kept inside, that come to her property and sleep there. She stated if someone were to come to her house, they would think she was an irresponsible multiple - animal owner. She felt this Ordinance was ridiculous, and was targeted at one person. Agnes Aquilino noted she and some of the other neighbors had been called "loudmouths"; however she stated they were not "loudmouths", they were the ones who lived there. She believed the people who were cat rescuers owned only a few cats, and handed all the other cats to somebody else, and in this case, they were using Ms. Bury. She stated Ms. Bury could not have her home grandfathered because every day she gets a new animal, and at least once a month a cat has a litter. She reported the neighbors had gotten cages from the Humane Society to trap the wild cats, and every cat they have trapped has belonged to Ms. Bury. Ms. Aquilino stated that when they bought their home, no one told them about the wild cat issue, and they found out only after they bought their house. She noted they try to keep their property looking nice; however, they have not picked up the feces for a month, just so that if people need evidence, they can come and see how much feces they get in their yard from her cats. She stated she knows it is from Ms. Bury's cats because she watches them run straight to her house. She reported Ms. Bury does not let the cats run loose during the day because she knows the neighbors have traps and will trap the cats; however, she does let them out at night. Ms. Aquilino stated this involved a lot of people, and they were now speaking up because they do not like the situation. She asked, if it was so sanitary at Ms. Bury's house, why does she not allow the Health Department to walk into her house? Ms. Aquilino believed this was a real health issue. She stated the rescuers could rescue the cats, but they were supposed to find homes for them, not keep them forever, noting Ms. Bury gives one away, then gets three more. Ms. Aquilino reported she has seen truckloads of food being donated to her house, noting Ms. Bury has many people supporting her in feeding the cats, and donating things. Ms. Aquilino believed the City had to pass a law, pointing out that if someone walked into another person's home and took something that belonged to them, there was a law against that, and in this case, the neighbors wanted a law passed that would support their values, their homes, their friends, and their health. She pointed out it was not that the neighbors did not like Ms. Bury, it was just that they love their homes, too, and they cannot be burdened with this. SRCC MINUTES (Regular) 8/16/99 Page 8 SRCC MINUTES (Regular) 8/16/99 Page 9 Helen Tyrell -Smith Wehlage, 705 Las Ovejas Avenue, stated all those who live on and around Las Ovejas Avenue have ever desired was a neighborhood without the invasion of twenty to fifty free -roaming cats in their yards, homes, and streets. She urged Council to pass this Ordinance, and monitor the neighbors who do not adhere to it, so the neighbors can have their rights back, and have them preserved. Melany Kramer stated she lives in the Canal, and noted they even have problems with cats on the boats. She believed this situation involved two different issues. First, the issue involved a woman who loved cats; however, she was running a cat shelter, and Ms. Kramer doubted that was allowed in a residential area without a permit. Secondly, it should be possible to arrive at an agreement, unless Ms. Bury was totally unreasonable, in which case Ms. Kramer, as a former practicing attorney, would advise that the neighbors sue her. She felt that if Ms. Bury would give a census of the cats, and if everyone could agree on a number, then the City could determine whether or not she was complying with the Ordinance. Ms. Kramer stated that when there are cats using an area for defecation and marking, then all the cats in the neighborhood come in, and it ruins the neighborhood, noting that even after removing the dirt it will still stink. She believed the real issue was one of being responsible. Ann Montalvo, 796 Beechnut Court, stated she, too, had compassion for the animals; however, she noted it was very difficult to have to explain to her child why she has to chase all the cats off her property. In addition, she stated they could not have their own cat, and it has been very difficult because that makes her child very sad. She stated it has been very emotional for her to have to trap these cats, and she does not like doing it; however, she had no other choice right now but to do this. Barbara Monti stated she lives on the corner of Las Ovejas and Beechnut Court, diagonally across from the home in question. She noted she had been asked by Cynthia Cole, one of her neighbors, to read a letter into the record: "Twenty -Five of the forty-two years that I have lived in Terra Linda, I have had nuisance and property damage from this one neighbor's animals. First, large Belgium Hares repeatedly ate my flowers and plants. Smaller rabbits were seen and heard in the gutters, squealing as they were killed by the cats. The Humane Society was of no help. I called City Hall, and asked for the one who was in control of Ordinances. This person hated to stick this neighbor with a permit to keep the rabbits. My damages listed and replacement value proved to be more than the cost of the permit. Only then, after a long and frustrating summer of rabbit pestilence, did the Ordinance person write to say he would force the neighbor to pay for a permit, or remove the rabbits. The rabbits' devastation ceased. Then, the cats invaded our garden, using our garden paths as litter boxes. Three or four years ago, I had to call the Police at 1:30 AM or 2:00 AM, as I was awakened by two women's voices outside of my window, trying to climb over my front fence to get their cats. At the back gate they had drawn our garbage can from the street curbside, where it awaited pick-up. On investigation, I first saw the neighbor inside my front gate, on my property. The Police were called. The Police Officer said I could arrest her for trespassing on my property, which is a misdemeanor. I did not do that. We taped the voice mail from the threatening phone calls I received from this neighbor. She would not open her door to talk to the Police. There were more threats, and I felt afraid. A complaint was registered against me, by Sharon, stating that I was doing away with her cats. Steve Hill from the Humane Society came to my home and after learning the facts, he said just to get a big water gun and spray the cats when they invaded my property, laughing at Sharon's complaints against me. Then the woman in the Ordinance Department, Ms. Machado, no relation to Cindy Machado of the Humane Society, who I know very well because I have been calling for years, made an investigation of my neighbor Sharon's home, and she was told she could not legally do anything about searching for her cats, or calling, "Kitty, kitty, kitty" after 9:00 PM or 10:00 PM. To date, cats are alive and growing, even sick ones with diarrhea are continually spoiling my property". Ms. Monti stated she had observed that the people who have spoken against the Ordinance do not live in their neighborhood. However, she pointed out the neighbors who were present, noting it was not just one or two spokespersons, it was a grassroots movement of people who live there, and everyone who is disgusted. She stated they were being held hostage in their homes when the weather was hot, and they cannot go outside. Ms. Monti noted this action was not originating with the City, it was coming to the City as a complaint from the neighbors, who were coming to their SRCC MINUTES (Regular) 8/16/99 Page 9 SRCC MINUTES (Regular) 8/16/99 Page 10 elected officials for help. She publicly thanked Community Development Director Brown, whom she stated had been wonderful in trying to solve this problem, and also Lydia Romero, who had taken this on as a cause. Ms. Monti stated she agreed with an earlier speaker who stated they had an illegal kennel or shelter in their neighborhood, and it should not be there. Ms. Monti noted this was not a personality issue, and it was not about cats; this was a health issue, and it was about feces, smell, and about the neighbors not being able to use their neighborhood. She stated this concerned the rights of the neighbors to enjoy their homes, the rights of the children to go outside and play, and the rights of the children to love animals. She stated, as a parent, it broke her heart that the children have learned to hate the cats and have to chase them away, noting children should be able to grow up loving animals. Referring to the suggestion of postponing action on this issue, Ms. Monti pointed out this has been going on for twenty-five years, and urged Council to pass this Ordinance. There being no further public comment, Mayor Boro closed the public hearing. Mayor Boro asked Community Development Director Brown to respond to questions concerning enforcement, and how that would work, and also share what staff has learned from other communities with similar Ordinances. Community Development Director Brown stated several other communities have restrictions on the number of cats, typically allowing three or five, and there are four cities in the County that require Use Permits for cats, although in contacting those cities, no one was able to recall when such a permit had actually been issued. Mr. Brown pointed out the City had a similar process, not dealing with cats, but with dogs, and the City has only issued one dog fancier permit. He explained this was something that would typically only arise by complaint; therefore, with regard to the question of how the City would deal with enforcement if the cats are not going off-site and impacting neighbors, he stated the City would not hear about it, and would only enforce upon complaint. Mr. Brown pointed out the purpose of the Use Permit process was not to deny uses, it was to make uses fit into neighborhoods. He reported he had looked back through the City's Use Permit logs, and he could not find a denial for several years, noting that typically, the City attempts to condition a permit so it will not impact the neighbors, so it can fit, and so the City has an enforcement mechanism if it does not work out. He stated that if it did not work out, there was an opportunity to bring the Use Permit up for reconsideration, again pointing out that was not an intent to deny, it was an attempt to find ways to make the situation work. Mr. Brown noted there had been a question regarding appeals. He explained the appeal rights from a decision he, himself, had made would first go to the Planning Commission, and if their decision was appealed, it would then go to the City Council. Concerning the issue of grandfathering, he explained that, typically, the City does grandfather uses when Ordinances change, noting those were usually uses that were very identifiable. Referring, as an example, to the auto repair businesses in a particular area, he explained the City would document the addresses of all those uses, so that when the Ordinance changed, staff would know exactly which were legal and nonconforming. However, he pointed out that was not possible in this situation, as the City does not know who might possibly have more than ten cats in their household, and as other speakers have pointed out, those populations continually change. Mr. Brown noted the question had been asked, if the City determines that a household has more than ten cats and has not applied for a permit, how would the City deal with that? He stated this would be handled in the same manner as any other Code Enforcement action, explaining the City would issue a Pre -Citation, which has no monetary fine, but would require the property owner to come into compliance by gaining a permit; if they did not accomplish that, they would be fined after a period of time. Mr. Brown pointed out the City always gives the property owner the chance to make their use legal. Mr. Brown noted there had also been questions concerning how the City would enforce issues such as odor. As an analogy, Mr. Brown stated that while everyone supports children and appreciates those who care for them, the City requires Use Permits for day care centers, and most of those Use Permits have restrictions on noise, for which the City tries to use a SRCC MINUTES (Regular) 8/16/99 Page 10 SRCC MINUTES (Regular) 8/16/99 Page 11 reasonable standard. He stated the same would be applicable to odors, noting City staff would have to use their best discretion, and if staff believed the odor in a particular instance was unreasonable, then the City would have an opportunity to bring forward the Use Permit, at a public hearing, for consideration and possible modification. Referring to the issue of how the City would gain access, Mr. Brown explained, as with any Code Enforcement action, if the City felt it had reasonable cause to believe a violation, such as the number of cats emanating from a household, impacted the adjacent properties, in terms of odors or feces, then the City could receive a Court Order to actually gain access. He reiterated the City tries not to utilize that avenue, noting staff has had very good success in its Code Enforcement efforts. Councilmember Phillips complimented Mr. Brown and his staff for their efforts in this matter, noting he greatly respected Mr. Brown's report. Mr. Phillips referred to extensions being granted, and asked what reasons would be acceptable for an extension? Mr. Brown stated it would be hard to say, noting they were judged separately, on a case by case basis; however, as an example, if property owners indicated they would like an extension to come into compliance, such as if they had seventy-five cats and wished to reduce that number so as not to require a permit, then the City would certainly consider giving them time to do so. He stated he did not believe that was going to be the case with the particular property they had been speaking of; however, that might be one example. Councilmember Phillips asked about the maximum number of extensions, noting if this were to go on forever, we were not really accomplishing much; therefore, he felt the document should contain a limitation on the number of extensions that might be granted. Mr. Brown stated he had interpreted the Ordinance to read, "an extension", meaning one singular extension to the amortization procedures. Mr. Phillips stated he would like to see that clarified, as it could be interpreted that an extension could be an extension after one has already been granted. Mr. Brown stated the Ordinance could be changed to read "a single extension". Councilmember Phillips wondered about the penalty for violations, asking, if no permit is requested and the City goes through the process, and then ultimately the permit is still not applied for, what penalties are provided for? Mr. Brown stated that under the Code Enforcement Ordinance, the City could cite up to $500 per day, as long as the violation persists. Councilmember Cohen noted he had reviewed the entire record from when the City had considered a similar Ordinance, and the testimony in front of the Planning Commission, and Council had heard a number of speakers, with a number of different viewpoints. He stated some of the testimony had come down to the argument that there was not a problem at this particular location, that the property had been cleaned up and there was not really any odor problem, or that the problem was really the strays in the Open Space, and not the function of someone keeping a hundred cats at this location. He stated he had heard enough testimony concerning this one particular location to convince him that was not true, and that there was a problem there, it was a legitimate problem affecting the neighbors, and needed to be addressed in some fashion. He noted the Council had also heard testimony concerning spaying and neutering, and while he agreed that may be an important issue, that was not the issue before Council at this time, and he found it interesting that the issue of spaying and neutering had only come before Council on the two occasions when Council was considering an Ordinance limiting the number of cats that could be kept in a household. To those who were concerned about the spaying and neutering of cats and other animals, he suggested they bring that specific issue to Council, and let them consider it separately from the issue now before them. He stated the City could then look at Novato's experience, now that they have adopted such a program, and see what their costs are, and then perhaps the City could also consider it. However, he reiterated that would have to be done in a context away from the problem Council was currently addressing, because they really were distinct issues. Councilmember Cohen stated he had also listened to comments that the City was somehow "creating" a crime, or defining a crime where no crime exists, as well as the comments that this was a "get Sharon" Ordinance. He stated he did not agree this was a "get Sharon" Ordinance, and while it may have been Sharon's behavior that brought the problem to Council's attention, he had not considered, prior to the hearing in February before the Planning Commission, that this would ever be an issue, because he had never heard of someone keeping a hundred cats; therefore, it had never occurred to him SRCC MINUTES (Regular) 8/16/99 Page 11 SRCC MINUTES (Regular) 8/16/99 Page 12 that this was something the City needed to consider regulating. However, having been brought to his attention, he had found that, apparently, it was a problem. Regarding the issue of whether it really was a problem, he stated he would stand by what he stated when this issue first came before the Council in February, noting he was convinced, from the testimony Council had heard, bolstered by the investigation of City staff, that a public health nuisance exists, and there is a threat to public health and safety. He believed the remedy to that seemed to be either too broad or too narrow; explaining that for the City to go after the problem, it would have to be defined as a nuisance affecting a large portion of the City; however, for the Council to tell the neighbors the City acknowledges the problem, but their only recourse is to sue the person who lives next door to them, he felt, was ducking the City's responsibility. Councilmember Cohen stated he was willing to take on the responsibility of protecting the public health and safety in this area, as the Council does in many others, and if that meant amending the City's Ordinances to allow Council to do that in a reasonable fashion, he felt it was appropriate. Councilmember Cohen referred to the comments that the City should grandfather existing households. He pointed out it was really this particular household, and the way it has been operated, that brought this issue into the Council Chamber four times. He noted he had been on the City Council for eight years, and for seven of those years it simply had not occurred to him that this kind of problem existed. However, to acknowledge that it exists, and state that such conditions could not exist in other locations but would be allowed in this one location because the Council did not know about it before now, simply made no sense to him. Councilmember Cohen stated he could understand those who viewed this as a "public service", and although he did not entirely agree that was the best way to resolve the problem, he understood the argument being made. However, he believed the Council had to weigh that public service versus the impact on the community, noting that was what they were being asked to do in this instance, and he believed putting this Ordinance in place would allow them to do that. Mr. Cohen stated if someone felt really compelled to keep more than ten cats, and wanted to argue that by doing so they were performing a public service, they needed to do it in a way that did not have such an odious impact on the neighbors, and allow the City to regulate it so those impacts could be reduced and mitigated. He pointed out that was what the City did with every kind of Use Permit it granted, setting conditions to minimize the impacts of the behavior someone wants to engage in, and he believed that was entirely reasonable in this instance. To those who believed this should be dealt with by rescuing cats, Councilmember Cohen stated he believed there were ways to deal with it other than concentrating one hundred cats in one household. He explained that under this Ordinance, nine cats in eight households would seem to deal with the problem, without triggering the Ordinance, and probably would not have the impacts on the neighbors that Council has been hearing about. Mr. Cohen stated he had asked staff at a previous meeting to review whether or not the City had the ability to regulate this and improve the situation, without adopting another Ordinance, and he was convinced staff had pursued every avenue. In addition, he had asked that when staff brought the issue back to Council, they revise the number upwards, which they have done, and he was very satisfied with what was now being presented to the Council. Councilmember Heller asked, if someone is given a Use Permit for more than ten cats, would the applicant be given anything which spells out all the conditions of the permit, as she believed the City needed to be very clear regarding what the person's responsibilities are if they are going to be responsible for a great number of animals in their home. Mr. Brown stated the conditions would be spelled out. He noted the listings in the staff report were actually "Findings" staff had made, and were only possible conditions, explaining they were not necessarily the conditions that would be applied, they were areas that would be considered on a case by case basis. He noted the written permit would actually go through these Findings, and then the conditions would be listed, with as much specificity as possible, so it would be very clear how the owner was to comply. Councilmember Heller stated she, too, had reviewed previous discussions regarding this issue, and admired the compassion of those who work hard to take care of the animals in the community; however, she also saw this as a cat shelter, and it was in the wrong neighborhood, noting she would not like it next door to her. Ms. Heller believed children had a right to play in their own neighborhood, and in their yard. She also believed this was a health issue, as well as a safety issue. Ms. Heller stated anyone who SRCC MINUTES (Regular) 8/16/99 Page 12 SRCC MINUTES (Regular) 8/16/99 Page 13 chose to have a large number of cats had the right to obtain a permit, and then be responsible for taking care of the animals in their dwelling. Councilmember Phillips noted Mr. Marrino had suggested mediation; however, he did not feel that would be practical, noting from what he had seen over this length of time, that did not seem as though it would create the solution that would work. Therefore, while he liked to see mediation occur between neighbors, Mr. Phillips did not believe that would be the answer in this instance. Mr. Phillips reported his family had four cats and, based on that experience, he believed seventy-five cats would be unbearable. He noted Ms. Bury was probably a good-hearted person; however, he was overwhelmed by the comments of Debbie Raphael, who spoke about not being able to go outside during the summer months. He stated he did not believe it was reasonable for one neighbor to impose that kind of condition upon another. He also referred to Barbara Monti's comments concerning the children not being able to really enjoy animals, noting he believed that was a good experience, yet under these conditions, perhaps the children really were being prevented from having that experience. Councilmember Phillips believed the personal impact of the experiences of Ms. Raphael and Ms. Monti were likely indicative of those of many of the neighbors. Councilmember Miller believed it was the right thing to love and care for animals, and to rescue them from harm; however, he also believed it was the wrong way to gather so many in one place that it negatively impacts upon the environment around them, the social, the people, and the earth environment. He believed a neighborhood was the wrong place for a cat shelter. Mayor Boro noted Council had heard comment from the proponents of keeping the cats on-site at the last hearing, as well as comments from the neighbors, and he believed the neighbors were true in what they stated. He acknowledged he, too, would have quite a problem if he had that many cats living next door to him, and he did not believe it was a reasonable thing. Mayor Boro pointed out the problem was not addressing household pets, it was about the shelter, which was an activity that does not belong in an R-1 neighborhood with single-family homes. He did not believe it was right for the neighbors to be surrounded by this type of activity. The title of the Ordinance was read: "AN ORDINANCE OF THE CITY OF SAN RAFAEL AMENDING TITLE 14 OF THE SAN RAFAEL MUNICIPAL CODE (CITY OF SAN RAFAEL ZONING ORDINANCE), TO AMEND SECTION 14.03.030 (DEFINITIONS) TO ADD A DEFINITION FOR ANIMAL KEEPING; TO AMEND SECTION 14.17.020 (ANIMAL KEEPING) TO REQUIRE ADMINISTRATIVE USE PERMITS FOR KEEPING OF MORE THAN TEN ADULT CATS, MORE THAN THREE ADULT DOGS, OR MORE THAN THREE POTBELLIED PIGS PER PROPERTY OR DWELLING UNIT; TO INCLUDE ADDITIONAL STANDARDS FOR ANIMAL KEEPING AND TO INCLUDE THE PROVISION FOR THE AMORTIZATION OF NONCONFORMING PROPERTIES OR DWELLINGS CREATED BY THE REVISED REGULATIONS". Councilmember Cohen moved and Councilmember Phillips seconded, to dispense with the reading of the Ordinance in its entirety and refer to it by title only, and pass Ordinance No. 1740 to print, as amended to specify only one six-month extension may be granted, by the following vote, to wit: AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None OLD BUSINESS: 17. CONSIDERATION OF ADOPTION OF AN URGENCY ORDINANCE ADDING CHAPTER 8.16 TO THE SAN RAFAEL MUNICIPAL CODE ESTABLISHING A PERMITTING PROCESS FOR TOBACCO RETAIL SALES AND REGULATING TOBACCO ADVERTISING AND PROMOTION (CA) - File 10-1 x 10-2 x 13-1 x 9-3-16 Assistant City Attorney Gus Guinan reported that at the last City Council meeting of August 2nd, numerous citizens had complained about a tobacco retailer intending to open a new store on Fourth Street in San Rafael. After Council discussed the matter that evening, it was referred to the City Attorney's office for preparation of a Moratorium Ordinance, for adoption at a special meeting. He explained that special meeting had been continued until this evening. Mr. Guinan stated that as a result of numerous meetings with City staff, the City Attorney's office had drafted not a Moratorium Ordinance, but an SRCC MINUTES (Regular) 8/16/99 Page 13 SRCC MINUTES (Regular) 8/16/99 Page 14 Urgency Ordinance which establishes a permitting requirement for tobacco retailers, and regulates some aspects of tobacco advertising and promotion. Mr. Guinan noted that at the City Council meeting of August 2nd, and at tonight's meeting, information was presented which detailed numerous studies and surveys outlining the health risks to the public, and especially to minors, caused by tobacco products. Mr. Guinan stated this information indicated that despite legal prohibitions and educational campaigns, the use of tobacco products among minors continued to rise at epidemic proportions. Mr. Guinan pointed out the City's Municipal Code did not contain any regulations to control the establishment, expansion, location, or operation of businesses selling tobacco related products, although tobacco related businesses were rapidly expanding nationally, and several businesses have sought to open outlets in Marin County. He stated that because of the adverse health effects associated with tobacco related products and trends in tobacco use among youth populations, the City urgently needed to adopt regulations to specifically ensure that tobacco retailers comply with all laws designed to protect minors from the ill effects of tobacco products. He believed this immediate threat to the public health, safety, and welfare, especially to juveniles, justified the enactment of an Urgency Ordinance. Mr. Guinan stated that in its review of the Council's request for a Moratorium Ordinance, staff analyzed what would be accomplished with such an Ordinance. He reported it was determined that if such a Moratorium was enacted, the Planning Department would use the time of the Moratorium to draft revisions to the Zoning Ordinance, in order to control the location of businesses devoted primarily to tobacco retailing. Those regulations would most likely establish the Zoning Districts in which tobacco retailers could be located, and the provisions would likely locate tobacco retailers in Commercial Districts, and restrict their location in relation to schools, playgrounds, and other uses which cater primarily to children or minors. However, Mr. Guinan stated that with such an Ordinance in place, the proposed location of a tobacco retailer in a shopping center located at Fourth Street and Santa Margarita Way would, in all likelihood, still be permitted; as a result, staff did not recommend enactment of a Moratorium Ordinance. Mr. Guinan reported that in further discussion, staff focused on the primary problem caused by tobacco retailers, which is the increased health risk to minors as a result of easy access to tobacco products. Mr. Guinan explained the method staff had arrived at to ensure that tobacco retailers in the City of San Rafael adhere to State and Federal laws and regulations controlling tobacco products, and their access by minors, was for the City to enact a permitting process for tobacco retailers. He stated, in essence, tobacco retailers would apply for a retail permit at the time they apply for, or renew, their business license; the records would be checked, and if the business was in compliance with the laws, a tobacco retailer permit would be issued. Mr. Guinan stated the permit process would allow the Code Enforcement Division to suspend or revoke a retailer's permit to sell tobacco products, if the retailer violated any law regarding the sale or advertising of tobacco products. Specifically, if any tobacco retailer violated the State law, Penal Code Section 308, which prohibits the sale of tobacco products to minors, that fact would initiate the administrative process leading toward suspension of his license, which Mr. Guinan described as the "meat" of this Ordinance, noting a retailer who makes money or makes his living from selling tobacco products would not be able to pursue that occupation for the period of time that the permit was suspended. Mr. Guinan acknowledged there have been some questions regarding what the City was proposing to do, as compared to what the City of Oakland has done with a similar retail outlet that attempted to go into the Rockridge District. He reported he had spent some time discussing this with Oakland's Deputy City Attorney, Ralph Weber, pointing out in that situation, the store rented a space, brought in product, put up signs, and opened for business. No permits were ever obtained, at all. The City of Oakland has a special Conditional Use Permit requirement for convenience stores, and when their Code Enforcement Division looked at the issue, they determined that "convenience store" included this tobacco outlet, although Mr. Guinan noted there was a question as to whether, factually, that determination could be made. Mr. Guinan reported Oakland's City Attorney took the matter to court, obtained a temporary restraining order, leading to a preliminary injunction, which was enough to shut down the operation. SRCC MINUTES (Regular) 8/16/99 Page 14 SRCC MINUTES (Regular) 8/16/99 Page 15 Mr. Guinan reported that secondarily, after that, the Oakland City Council met in Special Session to discuss a Moratorium Ordinance proposed by their Planning Department. Oakland's Moratorium Ordinance was designed to provide a six-month cooling -off period, during which no permits for tobacco retail stores would be issued, including building permits, zoning permits, or any land entitlements of any sort; during that time, the Planning Department would study their Zoning Ordinance to determine in which Zoning Districts they would allow, with a Conditional Use Permit, tobacco retailers. In addition, Mr. Guinan noted they were also going to define a tobacco retailer as being an individual or company that sells primarily tobacco products, with more than 75% of their gross receipts from tobacco sales, or more than 20% of their floor area devoted to the sale of retail tobacco products. Mr. Guinan stated what the City of Oakland was intending to do, in addition to placing a Conditional Use Permit and restriction on districts where tobacco retailers can operate, was to look at providing distances from other uses, within which tobacco retailers may not locate. For example, again stressing the emphasis on the protection of the health of minors, Oakland is looking at restricting tobacco retail outlets from areas approximately 1,000 to 1,500 feet from schools, secondary schools, playgrounds, libraries, community centers, and other such areas known to be minor intensive, and where children were more likely to play or be attending school. Mr. Guinan reported that at the end of the moratorium period, Oakland's Planning Division will go back to their Council with revisions to the Zoning Ordinance to accomplish those ends. Mr. Guinan reported City staff had discussed the same approach, trying to determine if the City established a Moratorium, which staff believed we could do, what the City would come up with regarding the Zoning Ordinance? He stated, generally, it was felt the City would end up establishing tobacco retail uses in Commercial Zones, and possibly in Industrial Zones, and would probably require a Conditional Use Permit, and a certain distance requirement from libraries, schools, and community centers. He stated staff determined that in this particular Commercial location, even if they came up with the kind of change Oakland is considering, the particular use proposed in this small shopping center would probably still be permitted. He explained that was why staff had changed direction and come before Council with a Licensing Ordinance. He noted the counties of Contra Costa and San Mateo have enacted similar Ordinances, and have urged the cities within their counties to adopt a model Ordinance much more along the lines of the one now before Council. However, he noted there were some differences. He stated the County of San Mateo's Ordinance was very similar to the one now being presented to Council, noting it had a permitting scheme, which they referred to as a license, and it was enforced by the County, under an arrangement between the cities and the county. The County of Contra Costa's Ordinance had a licensing or permitting scheme, but it did not come into play until there was an initial violation at a specific location; for example, if there was a Penal Code 308 violation, where sale of tobacco products to a minor had occurred, that information would be passed on to City administration, which would then require that particular retailer to obtain the permit or license, and then the process would be in place. Mr. Guinan stated he had been in contact with the Legal Assistance Center of the Public Health Institute, noting they have been very helpful in providing background information concerning what has been done Statewide. Mr. Guinan reported he had received a telephone call from Todd Priest, of the California Grocers' Association, asking what the City was planning, noting Mr. Priest had also sent a letter, indicating he would like a continuance. Mr. Guinan stated he assured Mr. Priest he did not have to worry, and faxed him a copy of the proposed Ordinance. He reported Mr. Priest had commented that the Grocers were not so much opposed to regulation, but rather some of the larger chains that have a high volume of cigarette sales were concerned about their image if one of their sales clerks makes a mistake and sells to minors. Mr. Guinan stated he tried to emphasize the fact that the City has an administrative due process procedure built into the Ordinance, that it was not an automatic suspension, and that he and his constituents would be afforded full due process. He also explained this was a simple permit that was obtained at the same time they renew their business license every year, and technically, it should be very little problem for them. Councilmember Miller noted the staff report indicated there were numerous documents in the City Clerk's office concerning this subject, and asked whether there was a copy of the Congressional testimony of the tobacco SRCC MINUTES (Regular) 8/16/99 Page 15 SRCC MINUTES (Regular) 8/16/99 Page 16 company executives, who raised their hands and stated tobacco was not addictive? Mr. Guinan stated he did not believe that was included in those documents. Councilmember Miller noted Community Development Director Brown had gone to Novato and looked at the Cigarettes Cheaper! store in that city, and asked if that store utilized the image of the Native American, in terms of their marketing? Mr. Brown stated he believed the Cigarettes Cheaper! chain did utilize what was referred to as a cigar store Indian statue as part of their corporate image; however, the store in Novato was closed when he visited, and the Indian was inside the store for the night. Mr. Brown noted it was his understanding that this had been an issue regarding the Rockridge store, as well. Councilmember Miller asked if the sanctions could be changed so the first violation would result in a 90 day suspension, rather than 30 days, and the second violation would result in a suspension of 120 days? Mr. Guinan stated he believed that could be done without any problem. Councilmember Cohen noted there had been discussion concerning possible avenues the City could pursue in terms of regulating this use through amending the Zoning Ordinance, verifying it was Mr. Brown's conclusion, in the time the City has been looking at this issue, staff had not been able to find anything that has been adopted by other communities that would, if adopted in San Rafael, allow the City to regulate even the opening of the store at this location. Mr. Brown stated, as Mr. Guinan had pointed out, he had discussed this with Oakland's Planning staff, as well as the regulations they were considering for possible adoption, after the six- month moratorium, which would involve regulations that were initiated based on proximity to youth oriented uses; however, that would not be the case in this particular neighborhood. He stated staff's concern was that while the City certainly could have a Use Permit process for all cigarette retailers, or those of a certain size, he was not sure the City would be able to accomplish much more with such a Use Permit process, other than the types of restrictions that were being discussed now, such as sanctions for violations of State or Federal law, and restrictions on advertising. He explained the Land Use impacts of the use itself, such as traffic, parking, and noise, were probably not going to be of a level that would be any different than other retailers; therefore, he did not believe the City would have justification, from a Land Use standpoint, to restrict such a use through a Use Permit process. Councilmember Cohen stated he trusted Mr. Brown would listen carefully to the speakers about to address Council, and if he heard anything that caused him to think the City would have some basis for regulating the use, he would bring that to Council's attention. Mr. Brown stated he would. He noted, as a comparison, the City regulates liquor stores, which require a Use Permit, and he could not find one instance where a Use Permit was denied for a liquor store, pointing out the Use Permit provided an avenue to create restrictions and give the City an enforcement tool with sanctions, if needed. Councilmember Phillips referred to Section H on Page 6 of the proposed Ordinance, which refers to restrictions on locations within 500 feet of certain types of sites; however, he noted that earlier in his comments Mr. Guinan had mentioned restrictions within 1,000 to 1,500 feet. He asked why the proposed Ordinance included a restriction of only 500 feet, rather than 1,000 feet or 1,500 feet? Mr. Guinan stated there was no magic number, and it came down to what was reasonable, noting the larger the distance the fewer locations that would be viable, and with fewer viable locations for the particular use, the possibility of legal challenge was there. He explained, in this instance, the 500 feet was a standard number the City has used in the past. He noted the number could be enlarged or lowered; however, he pointed out the City would have to look at what the locations were, Citywide, if it was going to be greatly enhanced, to make certain it was not so restrictive as to threaten the economic viability of the particular retailer. Councilmember Phillips pointed out the same section also referred to restrictions of 500 feet from an elementary or secondary school, public playground, public park, etc. He asked why high schools were not mentioned? Mr. Guinan stated he had intended secondary schools to include both junior high and high schools; however, he noted he would specifically include high schools to make the intent clear. Councilmember Phillips referred to the section concerning signs, noting the SRCC MINUTES (Regular) 8/16/99 Page 16 SRCC MINUTES (Regular) 8/16/99 Page 17 letters of the required signage prohibiting sales to minors must be at least 1/4 inch high. He felt that was rather small, and asked if the letters could be larger? Mr. Guinan stated the reason the letters were designated as being at least 1/4 inch high was because he had mirrored the language that already exists in the Smoking Ordinance. Mr. Phillips asked if the size could be increased, and Mr. Guinan stated it could. Councilmember Phillips asked Mr. Guinan to explain more fully the section on Page 10 regarding the Suspension or Revocation of Permit. Mr. Guinan reported that once a permit is revoked, the person no longer has a permit to sell, and would have to reapply; then, assuming they have corrected the conditions, it would not prejudice them from at least obtaining an application, and making reapplication for a Tobacco Retailers Permit. Mr. Phillips noted this section also referred to violations under State and Federal law, and asked how that was established, if it was one under -age person going in and purchasing product, and just what went into establishing revocation? Mr. Guinan explained, like most Code Enforcement matters, it would probably come up by way of complaint, likely with someone complaining that a particular location was doing such things as selling to minors, not advertising within the limits, or distributing free, promotional tobacco -related items to minors, and at that point, the Code Enforcement Division would do an investigation. Mr. Guinan stated it might well be, ancillary to this, that the Police Department would also have some sort of criminal investigation under violation of Penal Code Section 308, and if that was the case, then that information, once it was filed in Court and was public information, could be obtained by the Administrative Code Enforcement staff, and pursued in the City's administrative arena at the same time it was being pursued criminally. Mr. Guinan explained that, ultimately, if the City had to get the evidence on them, it could be, as has been done in the past by other agencies, that the City would have to do some type of testing, to see if they actually were or were not carding people, perhaps with the City sending in an under -age decoy to determine if they were actually violating the law. He noted the advertising prohibitions should be fairly easy for Code Enforcement personnel to observe and measure, and then make a determination whether or not there is a violation. Councilmember Phillips asked if the City had sufficient resources, particularly in the Police Department, to adequately enforce this Ordinance? City Manager Gould stated he believed we did, based upon the number of complaints the City has received on like uses in town. Councilmember Heller asked if there was any way to permanently suspend a permit after multiple violations, when someone was simply ignoring the law? Mr. Guinan stated that had been discussed, and there was some concern that if the City were to permanently shut them down, the City would, in effect, be taking their business, as opposed to giving them a penalty, such as the suspension of being able to sell the product for a specific period of time. Mr. Guinan noted revocation was provided for in the Ordinance, and there was a provision allowing them to reapply; however, if the City were to tell them they could never reapply, the City would be prohibiting them from doing business in town, and based upon his understanding of issues of the Commerce Clause of the Federal Constitution, as well as some Takings issues, the City would have litigation to deal with if that occurred. Mr. Guinan stated staff believed the penalties provided were sufficient to get the attention of the retailers, and encourage them to comply. Councilmember Heller asked if the twelve-month suspension after multiple violations could be expanded to two years, making it a harsher penalty, noting this would not likely apply to people who were in violation by mistake, but rather to those who were ignoring the laws. Mr. Guinan stated it was possible to consider doing that; however, it would be his recommendation to put this restriction in place first, and then if the City does have such flagrant violators, we would likely know it soon enough to amend the Ordinance, and at that point, the City would have enough justification to increase the penalties. Councilmember Cohen referred to the restrictions on advertising products, and asked if it would be possible to expand those restrictions further? He noted the Ordinance states they can advertise on a sign located inside or immediately outside that they sell tobacco products; however, the Federal government has restricted the tobacco industry's ability to advertise on billboards, without running afoul of free speech limitation. He asked if the City could at least state that in high traffic areas, not only immediately adjacent to public parks or schools, but also in high traffic areas where there is a likelihood that minors are going to be traveling by, that the City impose that kind of limit on tobacco advertising? Mr. Guinan SRCC MINUTES (Regular) 8/16/99 Page 17 SRCC MINUTES (Regular) 8/16/99 Page 18 stated this particular provision of the Ordinance had given him the most concern, and he had lengthy discussions with some of his colleagues, as well as the people at the Legal Assistance Center. He reported this provision had already been attacked back East, noting there were many East Coast cities that have had these types of licensing or permitting schemes in place for some time. He stated there have been several Federal cases, and none of them have prevailed at the Appellate level. He noted these provisions had been narrowly drawn to make sure the public interest of trying to protect the minors' health was not overreaching, and explained that what Mr. Cohen was suggesting, while it was still minor -related, went a little further than that. He acknowledged it might be worth trying; however, he felt it would expose the City to further consideration by those who have made attacks on First Amendment rights in the past. Mr. Guinan noted that if we were addressing specific locations where children were known to walk, such as from a school to a playground for P.E., and they traveled that way every day, or if they traveled from a school to a day care center for after school care every day, then perhaps the City could do something like that. Councilmember Cohen stated he understood that any expansion of this provision might expose the City to greater risk; however, he noted there were certain streets and roadways in the community that were designated as arterials known to be very high volume traffic locations, where the City just knows there are going to be thousands of people passing by on a daily basis, and a significant percentage of those are going to be minors, whether they are of driving age, or being driven by someone else. He believed, if they were going to be driving by a sign, being exposed to it on a daily basis, which says, "Smoke cigarettes, smoke cigarettes", that would be as much of a threat as if the sign was within 500 feet of a school they might be walking to. Mr. Guinan stated he understood Mr. Cohen's concern, and explained these particular provisions had been tailored so the City would not be exposed to any First Amendment litigation. He noted some of the signage would be controlled by the tobacco settlement made by the tobacco companies with the states' Attorneys General, which, for example, limits much of the billboard advertisement. Mr. Guinan stated he would have concerns with the City making a prohibition on arterials in general, as it would not be tailored narrowly enough to address the issue and concern the City has in terms of protecting the public health of minors, and it could cause some problems. Mayor Boro noted that in the first paragraph on Page 9 it states, "All applications shall be submitted to the City's Management Services Department..."; Sub -Paragraph 3 states, "Such other information as the Department deems reasonably necessary..."; Section 8.15.220 states, "...the City shall issue a permit.."; and then throughout the text of the Ordinance, the reference is again to "the Department". He believed it would make sense to make all such references to "the City". Mr. Guinan stated it would be changed. Mayor Boro invited public comment. Carolyn Rossi, thanked Mayor Boro and the Councilmembers for their work regarding this issue, noting from the questions they had asked this evening, they had thought a lot about the issue. Ms. Rossi stated the West End Neighborhood Association members had conducted exhaustive canvassing, and she had not found anyone who supported Cigarettes Cheaper! coming in. Ms. Rossi stated she had read the proposed Ordinance very carefully, and was concerned with the wording, "State law requires tobacco retailers to check the identification of tobacco purchasers who reasonably appear to be under eighteen years of age", noting her daughter was under eighteen, but at times looks older. Referring to the issue of suspension of a permit, she noted the Ordinance states the permit would be suspended for thirty days (which Councilmember Miller has requested be changed to 90 days) unless the permittee submits a training plan within a reasonable time. She stated she was not at all happy with that, as she did not trust the tobacco retailers. Ms. Rossi stated she had read a copy of the letter Mr. Roscoe had written in support of his store, in which he stated Cigarettes Cheaper! only sold cigarettes, and did not allow those under eighteen years of age in the stores. She reported Cigarettes Cheaper! had already been cited, and she believed Mr. Roscoe's words were empty, and there were a lot of promises in the letter that were not really adhered to. Mark Schwartz, resident of San Rafael, stated this issue concerned him greatly, as he lived approximately one-half mile from the proposed location. Mr. Schwartz stated one of his main concerns was the traffic SRCC MINUTES (Regular) 8/16/99 Page 18 SRCC MINUTES (Regular) 8/16/99 Page 19 density, and the problems with a large number of cars in that particular parking lot. He noted the Miracle Mile was not a pedestrian street, and everyone who goes there is going to drive; therefore, he believed there would be an inordinate number of cars going through that small lot, which has only twelve parking spaces. Mr. Schwartz stated that as they drive up and down Santa Margarita Avenue several times a day, even with the previous tenant, they have almost been hit by cars going in and out of that lot. Mr. Schwartz stated he loved this City very much, noting he had a young son, and out that such as they enjoyed walking the streets and walking downtown. He pointed when they walk Downtown, he does not see adult -only businesses, topless bars or porno movie theaters; however, there was now being proposed an adult -only store in his neighborhood, in an area where there is a bus stop used by the junior high school students going to White Hill. He pointed out there was also a United Methodist Church directly across the street, 78 feet door-to-door, and it was his understanding that there is a children's center and a school there. Allen Haim, 57 West Crescent Drive, stated Mr. Schwartz' description of the traffic problems was well known to the residents in their community. He pointed out that although the Miracle Mile was a commercial strip, the community was essentially residential, noting they were now seeing an influx of young people coming back to their community, and there were a lot of babies, children, and teenagers in the neighborhood. He stated the proposed Ordinance and supporting documentation was replete with the addiction people have suffered from the use of tobacco, and he felt the biggest problem we had today in Society was somehow teaching the young people how not to become addicted to this disease. Mr. Haim felt there were really two things going on here, a permit procedure process to suspend the license if the City determines there are violations; and also an advertising feature, which he believed was vague. Regarding the licensing permit process, he felt the City should toughen up the application process, noting in his years of experience he had found it was much harder to deny an application than to grant one. He felt that in the application process, the City should give the reviewing authority broader powers. The other issue he felt was significant was the issue of the location, which he believed was being skirted. He believed the Planning Department should look at whether there is any criteria as to where these facilities should be put. He asked, if there was conduct that was limited to adults, why couldn't the City locationally limit or restrict, based upon proper findings, where these facilities can be, so that minors cannot be attracted to it, or subjected to the advertising, and influenced by an "attractive nuisance"? Mr. Haim urged Council to send the proposed Ordinance back to staff, to extend the moratorium and revisit the Zoning aspects of this establishment. Brian Walsh, resident of the West End neighborhood, reported he had worked with Traffic Engineer Nader Mansourian, along with other members of the West End Neighborhood Association, volunteering to analyze the intersection, noting Mr. Mansourian has stated he did not know how the intersection will be impacted by the store. Therefore, on behalf of the West End Neighborhood Association, he was requesting that a traffic analysis be conducted, at the expense of Cigarettes Cheaper!, and that a Traffic Engineer be appointed by the City, and paid for by Cigarettes Cheaper!, with any recommendations carried out and paid for by Cigarettes Cheaper! Mr. Walsh felt the City needed to amend the Ordinance, particularly the grounds for denial, so that if a store is breaking the law and violating any of the City, State, or Federal laws in one neighborhood, the owner of that store should be responsible and denied a permit in the next neighborhood. Mr. Walsh also suggested changing the section on Page 6, expanding the restriction on advertising to include churches. He noted there was a church directly across the street from the site, which historically has been a house of worship, and a gathering place for the people of the community; therefore, he believed that should be incorporated into the restriction. Katie McCall, who works with the Youth Leadership Institute and Marin County Youth Commission Program Committee, reported on the impacts of tobacco on the young people of Marin County. Ms. McCall stated Marin County, along with Napa and Sonoma Counties, had the highest rates of youth smokers in California. She stated the Youth Leadership Institute had worked very hard during the last two years to combat the rapid rise of youth smokers through tobacco diversion programs, yet they continue to see young people smoking in public, and she asked if we really need another tobacco retail store here, and how the City was going to make sure teens SRCC MINUTES (Regular) 8/16/99 Page 19 SRCC MINUTES (Regular) 8/16/99 Page 20 are not sold cigarettes? Ms. McCall noted that for the past two years, the Youth Leadership Institute has conducted its tobacco buy survey,in which a young person attempts to make an "unconsummated buy". She reported that for both years they had documented instances where Cigarettes Cheaper! not only allowed a young person into the store, but also offered to sell them cigarettes. Ms. McCall stated the Institute was asking Council to take a step back and review the unlawful selling practices of this retail establishment. George Vasquez, resident of the City of Novato, stated his sixteen year old son and his friends like to come to San Rafael, noting it was equivalent to going to San Francisco, and he believed young people from throughout the County come to San Rafael to have a good time. He was concerned that if the restriction on locating tobacco retailers remained at 500 feet from the uses specified in the Ordinance, that could result in more cigarette stores, because there would be less space in between the businesses. He believed Council had a responsibility to realize that youth from throughout the County were coming to San Rafael. Referring to the issue of multiple violations and suspensions, Mr. Vasquez noted the ABC (Alcoholic Beverage Control) did not allow continuous violations, and after a specified number of suspensions the license was revoked. He stated selling a controlled substance was a privilege, not a right; therefore, as it was a privilege the City could give to someone, it should also be one they can take away. Linda Pratt, resident of San Anselmo, stated she drives down the Miracle Mile every day to get to her home. She requested Council extend the moratorium, and take a hard look at ways to strengthen the licensing procedures, as well as the Conditional Use Permit process. She believed the City should also look at spacing requirements, and locations that would be most appropriate for a store like this, rather than residential areas. Wayne Baker, resident of the West End neighborhood, stated he was quite concerned after reading the propaganda from Cigarettes Cheaper! He believed they were not just talking about a store that sells cigarettes, they were talking about a malicious concept he was afraid would negate the positive effects the tax increases have had on reducing teen smoking, noting he believed the availability of cheaper cigarettes was going to negate the effect the taxes have had in putting them out of the range of young people. Regarding the advertising, Mr. Baker requested that if there was going to be a process of granting permits, there be public notice and public hearings on any permits that might be granted. He also stated he was curious as to whether smoking would be allowed on the premises of the Cigarettes Cheaper! store, and if they will have a smoking room? Mr. Baker stated he lived on Tilden Circle, and he did not want these people for his neighbors. John Reynolds, member of the First United Methodist Church of San Rafael, pointed out the church was only 78 feet across the street from the Cigarettes Cheaper! location. He stated they were concerned with anything that was detrimental to the physical health of adults, as well as children, not just across the street, but up and down the streets of San Rafael, or anywhere else. He stated the church had a goal of increasing the number of youth and children using the church facilities, noting the Marin AIDS Interfaith Network, a youth group from Light House Singers, and Marin Family Action currently utilize the facilities, and they increasingly have more inter -generational programs to draw children. He noted young people do go across the street to that location, as it is an easy place to go for pizza, or to the music store. Mr. Reynolds stated they strongly endorsed what has already been said about not having Cigarettes Cheaper! located at that spot. Joseph Osborne noted that every Friday morning his son is taken to class at the United Methodist Church, which is 78 feet from the proposed location of Cigarettes Cheaper! He stated his definition of a school was a place where children congregate in classes, noting that was clearly the case at the United Methodist Church. In addition, he also pointed out the church's administration building clearly fits the definition of a community center, noting there are two polling places, and numerous community groups meet there; therefore, while it may have a church sign out front, there was no question that the United Methodist Church was also a school and a community center, and as such, he believed there should be no problem in prohibiting the cigarette store from going in across the street. Terry X, a resident of San Rafael, noted there had been a number of dramatic demonstrations which, he believed, had nothing to do with the licensing or permitting of the store. He pointed out this location has SRCC MINUTES (Regular) 8/16/99 Page 20 SRCC MINUTES (Regular) 8/16/99 Page 21 been in continuous use as a convenience store, selling adult products such as tobacco and alcohol, for quite a long time, noting it was approximately two blocks from The Wine Cellar, which also sells adult products. He acknowledged that tobacco was a risky thing to use; however, he did not believe the people who were offering to sell it at the location for which they have rented a retail facility should be made to feel ashamed, noting he was amazed at the number of people who cannot see that their right to be tolerated depends on the responsibility to tolerate their fellow members of the community, whether they agree with them or not. He stated what he was seeing now was organized intolerance, and it bothered him greatly. Harry Winters, President of the West End Neighborhood Association, noted the last time Council discussed this matter, the Association had not yet had an opportunity to review this issue; however, they had since held a Board of Directors Meeting, at which they read the staff report and reviewed the proposed Ordinance. He reported the Board had voted to support the City's effort to regulate this business in their neighborhood, and while they realized there might be legal constraints on what the City could accomplish with such regulation, they urged Council to maximize the regulation, and in particular, do whatever possible about the location within that neighborhood, pointing out the residential area starts immediately behind the rear wall of the store. Dr. Dan Beittel, physician, reported tobacco was highly addictive, and if a young person becomes dependent on tobacco between the ages of ten and fifteen years of age, and smokes for a number of years, it was very unlikely they would be able to stop using tobacco in the latter part of their lives. He stated anything Council could do to separate young people from tobacco, and becoming dependent upon it, would be highly appreciated. Mayor Boro referred to the issue of violation by location, and revocation after multiple violations. He asked Mr. Guinan to address the issue of whether violations were by location or ownership, and to also discuss whether the City could include revocation after a certain number of offenses. Assistant City Attorney Guinan stated that in discussing this issue with people at the Public Health Institute's Legal Assistance Center, they were not giving any clear direction regarding that question. He believed, in the application procedure, the question could easily be asked whether the applicant, or the company supplying them, had been in violation of the law, and they would have to respond. He noted that if they were to respond that they have been in violation, then staff could look at the application, determine how long ago the violation had occurred, if it was a flagrant or repeated violation, and then a determination would be made whether or not there could be some question as to such a permit being granted. Mr. Guinan explained that when someone initially comes in for a permit, other than asking such a question, there would not be an extensive period for investigation, such as there would be if there was a complaint. He noted a complaint would involve Code Enforcement, and would be based upon a specific allegation, including the time, date and location. He pointed out that the complaint would be followed up, and the City could determine whether a violation had occurred, noting it would be specific and concrete to establish. If a violation were established, suspension or revocation of the permit would follow and would be solidly supported. However, in this instance, it was not a clear-cut issue because, unlike alcohol, tobacco is not regulated at the State level, at least as far as purchase and sale. Mayor Boro asked, if there was a chain store company with numerous licenses throughout the state, and they had a violation at one store, were they prohibited from going to another community to open another store? Mr. Guinan stated he was not aware of that being the case. Mayor Boro asked, if Cigarettes Cheaper! had violations at other store locations, could that be used as a reason not to allow them to open here? Mr. Guinan stated he doubted that would be the case, noting the permit was site specific and, for example, if Cigarettes Cheaper!, Safeway, Lucky, or whoever was selling tobacco products had more than one location in town, they would have to have a permit for each location. Mayor Boro referred to the more severe, progressive application of discipline with ABC, noting a company's approach to violating that law could lead to revocation of their license. He asked if the City could pursue that as part of the penalty phase of this Ordinance, ultimately leading to revocation? Mr. Guinan pointed out that in the Suspension or Revocation of Permit section of the Ordinance, there was a provision for revocation. Mayor Boro asked if that included permanent revocation, and SRCC MINUTES (Regular) 8/16/99 Page 21 SRCC MINUTES (Regular) 8/16/99 Page 22 Mr. Guinan stated it did. Mr. Guinan reported that in his discussions with people more experienced in these types of Ordinances, it was felt that as a practical matter, the escalating periods of suspension and/or revocation that were non -prejudicial, meaning that once conditions were corrected they could reapply, were sufficient enough to bring retailers under control, or at least a sufficient enough threat. He stated it was believed the threat to their financial livelihood by violating the conditions and losing their right to sell was sufficient for them to be in compliance. Mr. Guinan explained a permanent revocation of any product was a severe penalty, and he was not certain he would be comfortable in recommending to Council that they adopt such a position, certainly not at this point, where the evidence was still rather sketchy concerning what was going to happen with the permitting scheme if Council adopts the Ordinance. Mr. Guinan stated there had been a theme running through some of the questions concerning whether a zoning or locational approach should be considered, noting he understood the concerns of the community, and staff had seriously looked at that issue to see whether it would provide some resolution. He stated one of the facets involved whether or not the City could restrict these uses within specified distances from residential districts. He explained that created a problem, because the focus and the entire underpinning of these types of licensing or permitting Ordinances was based upon the premise that there was a greater public need to regulate threats to minors than there was to adults, and that was the reason most of the recitals in the Ordinance and supporting documentation related to the health threat of tobacco to minors and how, even with educational programs, the use of tobacco products by minors continued to stay level, at best, and at worst, was continuing to rise. Mr. Guinan noted that if the City began to get into situations where it was regulating tobacco sales only in residential districts, it would not be addressing the specific minor - related basis for enacting the regulatory scheme. He acknowledged there may be particular uses in residential zones that are minor -intensive, and there might be some way to craft such a locational Ordinance; however, at least in the preliminary discussions, staff believed this was a better approach. Councilmember Phillips referred to the issue several speakers had discussed, concerning the location being within 78 feet of child care, and whether the church, which does provide child care and community gathering types of uses, falls within Section 8.15.010. He asked if there was an issue there with regard to parameters? Mr. Guinan stated that was a matter for discussion, acknowledging he could certainly understand that argument; however, his immediate response was that the way the Ordinance was written, it probably would not cover such a day care center, and would not cover a church, even if the church is used by the community. Mr. Phillips asked how child care differed from a park? Mr. Guinan stated that if Mr. Phillips was asking whether day care centers could be added to the Ordinance because they are minor -intensive, he agreed that would be appropriate. Mr. Phillips asked, if day care centers were included in the list of designated areas, and it was found that, in fact, the church was providing child care, would that mean they could not advertise within 500 feet of that facility? Mr. Guinan stated that was correct, although he pointed out there were exceptions to that advertising rule, noting that while there were certain limitations on the exterior of the store in that location, certain interior signs would still be permitted. Mr. Phillips asked if this would not prevent the establishment at this location? Mr. Guinan stated that was correct. Councilmember Heller asked Mr. Guinan to comment regarding whether a traffic analysis would be required, and whether smoking would be allowed on the premises. Mr. Guinan deferred to Community Development Director Bob Brown. Mr. Brown stated smoking would not be allowed on the premises, explaining the current Smoking Ordinance required that smoking rooms be a permitted use, and that had not been requested by Cigarettes Cheaper! He noted the City did have one smoking room, which was part of the Havanna Cigar Company on Fourth Street. Regarding a traffic study, Mr. Brown stated that given the current license proposal, an analysis would not be required, explaining the City would only require a traffic study if there was a true Discretionary Use Permit, allowing the City to look at the land use impacts. He stated that for retail uses, the City used a blended traffic and parking rate, and did not differentiate between types of retail. He acknowledged there were some that were higher generators, such as a video rental store; however, the City did not differentiate the requirements for a video rental store simply because it is a high traffic generator, so the City would not have the ability, on a license provision, to look at land use impacts on a case by case basis. SRCC MINUTES (Regular) 8/16/99 Page 22 SRCC MINUTES (Regular) 8/16/99 Page 23 Councilmember Cohen acknowledged that while a number of speakers had urged Council to do so, the City could not regulate a location based upon its being in or near a residential neighborhood. However, he wished to follow- up on the issue of the church and/or day care, with regard to location, because he took Mr. Guinan's answer to be about advertising, and he wanted to back up a step and talk about the zoning. He noted it has been said that other communities have adopted, or are considering adopting, zoning regulations that would prohibit these kinds of uses within a specified number of feet of certain types of facilities, and while it was believed that those would be legally sustainable, it was not believed, in this case, that the facts would end up leading the City to banning this use at this location, because they were not within 1,000 feet of a school. Mr. Cohen asked if the staff had considered the possibility of including churches or day care centers within those lists of designated locations? Mr. Guinan stated they had not. Community Development Director Brown clarified that in discussions with Oakland's Planning staff, they did not propose banning these uses within 1,000 feet, they proposed requiring a Use Permit for them when they are located within that proximity, creating a public process. Mr. Cohen asked, for example, where the City of Oakland created a six-month moratorium and got a court order to close the store, did they then anticipate there would be a permit hearing, and they were likely to grant the Use Permit? Mr. Brown stated he did not know. Mr. Cohen asked if any of the Ordinances staff had looked at banned these uses within a specified number of feet of facilities such as schools? Mr. Guinan stated he had not seen an Ordinance which did that. He noted he had not looked at many Zoning Ordinances, because most of the communities had gone the same route our staff was proposing. He pointed out the City of Oakland was taking a unique approach, addressing this issue head-on with a moratorium, and then looking at the zoning issue. He stated he had not seen a draft Ordinance because they had not drafted it as yet. Mr. Brown compared this to the way the City regulates liquor stores. He explained that in most of the City's commercial districts, including the one in the West End, liquor stores that are more than 200 feet from a residence are permitted, and there are no discretionary permits; however, when they are within 200 feet of a residence, a Use Permit is required. Mr. Brown reiterated he had not been able to find an instance where the City had denied a Use Permit for a liquor store, even though they typically have very high demands for Police services, based upon their use. Councilmember Cohen stated he had misunderstood, and had thought some of the other communities which had adopted regulations on a land use basis were actually denying permits within a specified distance of such facilities as schools. He stated if that was not the case, it lent more weight to the argument staff has made, despite the clearly expressed desire of the community for Council to find a way to regulate this, based upon location. Regarding the issue of traffic, Councilmember Cohen stated the City looked at bulk retail differently than other types of retail, noting the argument had been made that it would be reasonable for the City to consider this use differently than a convenience store. He pointed out a convenience store was going to serve the immediate neighborhood, but people were not going to drive past a 7-11 to go to a Stop IN Go, because they were fundamentally the same, and tended to locate in areas where they were going to serve an immediate neighborhood. However, presumably it was this business owner's intent that people would drive out of their way to go to his store, passing 7-11 and Safeway, and any other store where they could buy cigarettes, to go to his store because the cigarettes are cheaper. Mr. Cohen stated if the owner is correct in his concept, he is going to have higher traffic volume than a convenience store, and therefore, a higher impact on the neighborhood. Councilmember Cohen asked if the City had any way to evaluate this, or any tools for requiring that this be evaluated prior to a permit being issued? Mr. Brown explained the City would have that requirement only with a discretionary type of Land Use Permit. He pointed out, for example, that among the City's various types of retail uses, the City had discount stores, which were a permitted use within this particular Zoning District, and they were higher traffic generators, as well. Councilmember Cohen noted the Ordinance states that upon the first finding of a violation by the permittee, the permit shall be suspended unless they SRCC MINUTES (Regular) 8/16/99 Page 23 SRCC MINUTES (Regular) 8/16/99 Page 24 adopt a training plan within a reasonable time, and file, within a reasonable time, satisfactory evidence that the training plan has been completed. He stated this meant the City had to adopt a procedure for determining a reasonable training plan, a reasonable timeframe for the adoption of the training plan, and a reasonable timeframe for providing evidence that the training has been done. He believed, under that language, that anyone found to be in violation was going to have the option of coming to the City and saying their violation had been a mistake, and that they wanted to rectify the problem and to do a training plan, and then the City was going to have to allow them reasonable time to put together a plan and carry it out. Mr. Guinan stated that was correct, noting the basis for this, among those who drafted the model Ordinance, was that on a first time offense, in an effort to get the retailer into compliance, it was worth the effort to see if the retailer was willing to expend the effort to train his staff to ensure the violations do not re -occur; after that, it would be strictly suspension. Mr. Cohen asked if, on the first offense, they did a training program, was that the same as going to traffic court and wiping their record clean, and if they were to do a training program and then there was a second offense within a 12 -month period, could the City immediately suspend the permit, without offering them another training program? Mr. Guinan stated that was correct. Councilmember Cohen asked, instead of specifying a twelve-month period, could the City specify a 24 -month period? Mr. Guinan stated he and City Attorney Ragghianti believed it would be better to follow what had been drafted as a model Ordinance, and see what effect it has. He noted that if, in fact, there are repeated violations from a store over time, then perhaps it should be changed to 24 or 36 months. However, based upon the experience of the people who put together the model Ordinance, they felt this would be the reasonable way to start. Mr. Guinan noted additional information had been brought to his attention, reporting the City of Vista does employ a land use process limiting outlets within a 1,000 foot location from schools; however, he noted that was the only city in the Country to have such land use restrictions. Councilmember Miller stated he shared concern over the provision of the Ordinance regarding the training plan. He believed that if the owner has a constant turnover of staff, which was probably to be expected with this kind of business, then the business owners would likely be getting off very easily, simply by stating their employees did not understand or know about the rules. He asked if there was some way to strengthen that section of the Ordinance? Mr. Guinan stated he could review that section if Council so directed. He noted that section had been taken from the model Ordinance, with the idea being to get tobacco retailers into compliance with local regulations; however, he believed that portion could be deleted, and they could go straight to the 90 -day suspension, if that was Council's decision. Councilmember Miller stated he would like that; however, he would defer to the Attorneys as to whether the City should do that. City Attorney Ragghianti acknowledged it would be possible for the City to do that; however, he stated he had asked Assistant City Attorney Guinan to use caution, and not attempt to negotiate substantive changes to the proposed Ordinance at this time, pointing out the Ordinance could be amended and modified in the future. He stated he was concerned that some of the questions the City Attorney's office was being asked they did not know the answers to, although they would find them out, and he hesitated to make some of these changes without knowing the full impact of them in this integrated Ordinance. Mayor Boro clarified the City Attorney's office was suggesting the City try to stay the course with an Ordinance that has already passed some reasonable legal challenges, and then, as the City gets into it further, if Council wants to refine it and make it more severe, that can be discussed later with the City Attorney's office, and Council can amend the Ordinance. Mr. Ragghianti stated that was correct. Councilmember Cohen asked if, as opposed to a land use issue, where if the regulations are not in place when the business opens, then the regulation is not going to apply to that business, this Ordinance was going to apply to this tobacco retailer, and to every other tobacco retailer, and if the City finds a basis for toughening the Ordinance even further, those regulations would also apply to everyone equally? Mr. Guinan stated any changes would apply when the retailers reapplied for their business licenses, which they must do annually. Mayor Boro stated the Councilmembers and staff had thought a lot about this SRCC MINUTES (Regular) 8/16/99 Page 24 SRCC MINUTES (Regular) 8/16/99 Page 25 issue, and have tried to do something that would be effective, and to do it in a way that was responsible to the City and to the existing businesses, and at the same time not set the City up for lawsuit challenges, nor give expectations to the community that cannot be delivered. Mayor Boro stated Council believed the Ordinance provided by the City Attorney's office was something the City could enforce. He noted San Rafael was the first city in the County, in 1993, to take the lead in banning smoking in restaurants, to regulate smoking in bars, to ban cigarette vending machines, and to ensure that cigarettes were locked up by every vendor; therefore, it was not that the City has not tried to work on and resolve this issue. However, he pointed out it was not illegal to sell cigarettes in this state, or this City, but it was illegal to sell cigarettes to minors, and he believed the Ordinance being recommended to Council addresses the issue of selling to minors, and tries to put penalties in place if that does happen, allowing the City to regulate businesses that violate that portion of the law. Mayor Boro believed the recommendation before Council would allow the City to address the concerns of the community with respect to cigarettes being sold to minors. He also believed the community would be vigilant, as would the City, noting that if complaints are received, the Ordinance will be enforced. He stated that as time goes by, if the City can be more stringent, the Council would be open to doing that, as well. Councilmember Cohen stated he was disappointed he could not find a way to meet the request of many of the speakers that the City find a way to regulate this use based upon location. He was also disappointed he could not, as others have requested, support a moratorium, in the hope the City would find some way to do it, as he did not believe the City would find any basis for that. He assured those in the audience that if he believed the City had some chance to do so, he would support a moratorium; however, he did not believe that, therefore, he could not support a moratorium when he believed that at the end of the moratorium period, the outcome would be the same as it is tonight. Councilmember Cohen stated he was also disappointed Mr. Roscoe had not attended the Council meeting, noting he received a letter from Mr. Roscoe, on behalf of Cigarettes Cheaper!, and had looked forward to telling Mr. Roscoe he does not like tobacco; he does not like Mr. Roscoe's corporation, which is making it easier for young people to get tobacco, and whose sole purpose is to make it easier and cheaper for people to get an addictive substance that kills people; he does not like tobacco retailers, in general; he does not like anything he has seen about this corporation, its business practices, or the information it puts out on the Internet; and after reading Mr. Roscoe's letter, which was self-serving, snide, and vaguely threatening and insulting, he did not believe he liked Mr. Roscoe, and would have been happy to tell him that in person. Councilmember Cohen stated he believed this Ordinance was the best the City could do at the present time, although he would want to discuss with staff in the future about whether the City might want to regulate these kinds of uses based upon location, so the City does not receive another application from Cigarettes Cheaper! across the street from the High School, and then have to have this same discussion again. However, he pointed out that was not what was now before the Council; what was before Council was an Urgency Ordinance concerning tobacco retailers. He noted one of the things he did like was that this was not going to apply to just the proposed Cigarettes Cheaper! location, it was going to apply to all tobacco retailers, which meant it would also apply to a store that was just brought to his attention, which already exists in Downtown San Rafael on Fourth Street across from Courthouse Square, where a number of young people hang out, a store that is what used to be known as a "head shop", and also sells tobacco and other paraphernalia. Councilmember Cohen noted the City was also going to be able to regulate that store, and he was confident the City of San Rafael would aggressively pursue anyone who violates the law or the City's Ordinances, and suspend anyone's license if they are in violation, noting he would not be disappointed when that happens. Councilmember Phillips questioned the application procedure. He noted the Ordinance mentions a fee the City charges for the permit, and he wanted to make certain that fee, as it applies to retailers throughout the City, was sufficient to put real "teeth" into the enforcement, and also that the City was actively pursuing the matters discussed in the Ordinance, such as the Policing process, because he did not trust the retailers to police themselves. Therefore, he hoped the fee was structured so that the City could recover the cost of enforcing the Ordinance, which he believed would ultimately rule the day with regard to the behavior of these retailers. City Manager Gould explained that if the Council were to enact the Urgency SRCC MINUTES (Regular) 8/16/99 Page 25 SRCC MINUTES (Regular) 8/16/99 Page 26 Ordinance, one of the things staff would be directed to bring back would be a fee structure, as part of the Annual Fee Renewal, which would occur in the next month or so. He stated staff would attempt to set a fee that would cover the City's administrative cost for processing these applications and tracking them, so the taxpayers were not out any money for the cost of the regulation of tobacco sales in San Rafael. With regard to enforcement, the Administrative Hearing process the City put in place two years ago allows the City to seek not only penalties against those who break a local Ordinance, but also to recapture the City's administrative costs for the enforcement itself. Councilmember Phillips stated he wanted to encourage staff to make certain the City had adequate fees to make certain our intent. Councilmember Heller stated she agreed with her fellow Councilmembers' remarks. Councilmember Miller read the following prepared statement, "There is no question that retailers exist that serve the neighborhood, unlike Cigarettes Cheaper!, that is dedicated to selling a product that has a demonstrated connection to the cause of cancer, and is injurious to public health. There is no question that the nearby residents do not want Cigarettes Cheaper!, in any way, shape, or form, nor do the people of San Rafael welcome discount tobacco stores such as Cigarettes Cheaper! There is no question that Cigarettes Cheaper! is of an industry that merchandises death, and is led by liars who have targeted our young people, and knowingly hook them on an addictive substance harmful to their health. There is no question that Cigarettes Cheaper! markets with images that mock the nobility of indigenous people, and disrespects their religious traditions. There is no question that with or without a moratorium, we cannot prohibit Cigarettes Cheaper! from locating at the shopping center at Fourth Street and Santa Margarita Avenue; but, there is also no question that this Emergency Ordinance proposed by our staff empowers community oversight of this hazardous enterprize, and pledges vigorous enforcement. I shall vote for this Emergency Ordinance that establishes a tobacco retailer permit process, regulates tobacco advertising and promotion, and grants the City of San Rafael the power to suspend or revoke Cigarettes Cheaper!'s permit, if this retailer violates any law regarding the sale of advertising of tobacco products". Mayor Boro thanked the community for working on this issue with City staff over the past several weeks, and particularly thanked Assistant City Attorney Guinan for his hard work in getting the City to this point in a very short time. The title of the Urgency Ordinance was read: "AN URGENCY ORDINANCE OF THE CITY OF SAN RAFAEL ADDING CHAPTER 8.15 TO THE SAN RAFAEL MUNICIPAL CODE ESTABLISHING A PERMITTING PROCESS FOR TOBACCO RETAIL SALES AND REGULATING TOBACCO ADVERTISING AND PROMOTION (as amended: Section 8.15.010 to read, 'No person shall place or maintain, or cause or allow to be placed or maintained, in any manner, any advertising or promotion of cigarettes or tobacco products on an advertising display sign in a publicly visible location within 500 feet of the perimeter of an elementary, secondary, or high school, public playground or playground area in a public park (e.g., a public park with equipment such as swings and seesaws, baseball diamonds or basketball courts), day care center, public community center and public library'; 2) Section 8.15.250, Suspension of Permit, to read, '(a) Upon a first finding by the City of a violation by a permittee or any agent or employee of a permittee within any twelve (12) month period, the permit shall be suspended for ninety (90) days...', and, 'Upon the second finding by the City of a violation by a permittee or by any agent or employee of a permittee within any twelve (12) month period, the permit shall be suspended for one hundred twenty (120) days'; 3) All references in the Ordinance to 'the Department' shall be changed to read 'the City'"; and 4) Section 8.15.110 changed to read, 'Any person, business, or tobacco retailer shall post plainly visible signs at the point of purchase of tobacco products which state, THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER EIGHTEEN YEARS OF AGE IS PROHIBITED BY LAW. PHOTO ID REQUIRED. The letters of said sign shall be at least one inch (111) high'. Councilmember Cohen moved and Councilmember Heller seconded, to dispense with the reading of the Ordinance in its entirety and refer to it by title only, and adopt Urgency Ordinance No. 1741 by the following vote, to wit: (Four-fifths vote required.) AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips & Mayor Boro SRCC MINUTES (Regular) 8/16/99 Page 26 SRCC MINUTES (Regular) 8/16/99 Page 27 NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None MONTHLY REPORT: 18. CITY MANAGER'S REPORT (CM) - File 9-3-11 Due to the lateness of the hour, the City Manager did not give a report. Mayor Boro asked the City Manager to prepare an update on the issue of tree removal at Dominican College. COUNCILMEMBER REPORTS: 19. None. There being no further business, the City Council meeting was adjourned at 11:40 PM. JEANNE M. LEONCINI, City Clerk APPROVED THIS DAY OF 1999 MAYOR OF THE CITY OF SAN RAFAEL SRCC MINUTES (Regular) 8/16/99 Page 27