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HomeMy WebLinkAbout05-16-00 Health & Public Safety Health and Public Safety Committee South Bend Common Council The May 16, 2000 meeting of the Health and Public Safety Committee was called to order by its Chairperson, Council Member Andrew Ujdak at 3:00 p.m. in the Council Informal Meeting Room. Persons in attendance included Council Members: King,Ujdak, Kelly and Kirsits; John Broden, City Attorney;Aladean DeRose, Chief Assistant City Attorney,Police Chief Larry Bennett, Patrick E. Mangan,Public Policy Consultant; Joseph E. Sergio,President of Citizens for Community Values, Inc.,Dennis Staffelbach,Esquire; Jim Frick, representatives of the South Gateway Commercial Corridor Business District; Terry Bland of the South Bend Tribune; and Kathleen Cekanski-Farrand, Common Council Attorney. Council Member Ujdak welcomed everyone to the meeting and noted that it would continue its discussion of the Delaware Case(Francis R. Mitchell;Bob's Discount Adult Books, Inc. v. Commission on Adult Entertainment Establishments of the State of Delaware, 3rd Circuit Court of Appeals 1993)as it may relate to proposed Bill No. 28-00 which would amend Chapter 4, Section 18.5 of the South Bend Municipal Code regarding adult businesses. Council Member Ujdak inquired of Mr. Broden with regard to the Delaware Case and the recent article in the South Bend Tribune. Mr. Broden stated that in that article it was mentioned that the three(3)adult businesses in Delaware had been grandfathered. He did not find such a reference in the court's decision. He further noted that the issue of an unconstitutional taking was not addressed in that decision and that the City was prepared to address that issue if raised. Council Member King noted that he had reviewed the decision and also had found no reference to any businesses being grandfathered. Council Member Ujdak stated that there were factual differences between the Delaware case and the potential effects of the proposed ordinance since no grandfathering provisions have been proposed locally. Mr. Broden noted that if an injunction would be issued against the City requiring it to refrain from enforcing the ordinance that such judicial action would mitigate damages on the unconstitutional taking argument. He noted that the criteria involved includes that the material must be"content neutral"and that it must be related to"reasonable time, place and manner". Mr. Broden also noted that there would be a presumption of the legislation being constitutional with the petitioner having the burden of proof. With regard to Council Member Ujdak's inquiry regarding the economic issues which might be raised by the business owners who would be required to close at 10 p.m.,Mr. Broden stated that he would anticipate that affidavits of the business owners would be filed to address that issue. Council Member King stated that the overall emphasis of the proposed ordinance is to curb the secondary negative effects of such businesses. Mr. Mangan noted that this Friday at 4 p.m. oral arguments would be heard on the Health and Public Safety Conmitte Meeting Minutes of May 16,2000 Mishawaka case currently pending in the United States District Court for the northern district of Indiana. He noted that it is a right to privacy case and that the establishment voluntary closed at the 10 p.m. time. The taking issue was not raised in this case. Mr. Mangan stated that he would provide a copy of the complaint to the Committee. Council Member Ujdak then turned to his concerns regarding the Indiana Alcoholic Beverage Commission. Mr. Broden noted that since establishments are required to comply with the adult business licensing provisions of the South Bend Municipal Code that the closing time would be a part of those provisions and regulations. He noted that the biggest issue may be pre-emption. The petitioners may contend that their liquor license enables them to operate,however the local regulations which are proposed are content neutral with the primary focus being on curbing adverse secondary effects. Mr. Broden then quoted from Indiana Code 7.1-3-9-2 which addresses pre-emption. Ms. DeRose agreed with Mr. Broden's contention. She noted that alcohol is an incidental side effect however did not that this would be a case of first impression. Mr. Staffelbach then highlighted portions from O'Banion v. State ex rel Shively, 253 N.E. 2d 739(Ind. App. 1969) which was a zoning case and highlighted portions from Banknote Club, etc. v. City of Dallas, 608 S.W. 2d 716(Tex.Civ.App.1980)which are both addressed in the Memorandum dated May 15,2000 (copy attached). In response to a question from Council Member Ujdak,Mr. Broden noted that the New Jersey case involved a 10 p.m. of adult bookstores and that the Colorado case involved a zoning ordinance regulating adult businesses. The Council Attorney inquired whether any zoning amendments were anticipated in light of the O'Banion case. Mr. Broden noted that as a result of the City's successful legal action against Little Denmark that preliminary discussions involving possible definitional changes have taken place. However at the present time,he believes that the zoning regulations are sufficient. Mr. Staffelbach concurred. Council Member Kelly noted that he would be unable to attend the next two(2) Committee meetings scheduled for May 25th and June 5th. He stated that he believes that passing the proposed ordinance would be the right thing to do. Council Member Ujdak than inquired into the offers of support regarding the defense of such an ordinance if legally challenged. Mr. Broden noted that his office has done a considerably amount of work on this ordinance and that much of this work would aid his office if the ordinance would be legally challenged. He would anticipate that he and Ms. DeRose would spearhead the defense of the ordinance and that no additional staff would be needed. Mr. Mangan stated that Bruce Taylor and the National Law Center would be available. He noted that they are acting as"special assistant city attorneys" in the Mishawaka case. The city pays for their travel expenses with all legal services being provided on a pro bono basis. Council Member Ujdak stated that he would want the pro bono offer of services in writing. Mr. Mangan noted that the preparation to this point has been over a fifteen(15)month period. Health and Public Safety Committe Meeting Minutes of May 16,2000 The Council Attorney noted that the Mayor may be unable to attend the 1st Council meeting in June. She further noted that in light of the upcoming arguments on the Mishawaka case this Friday, that perhaps the Bill should be heard at the June 26th Council meeting. Mr. Broden stated that he has had preliminary discussions with the Mayor. He again stated that the primary issue would be the pre-emption issue with the taking issue be a secondary issue. He also noted that he telephone the Indiana Alcoholic Beverage Commission in Indianapolis and advised them of the upcoming meetings of the Committee. Mr. Staffelbach noted that the city may wish to request an attorney general's opinion. Mr. Broden stated that the city has done that in the past but that there may not be enough time for such an opinion to be issued. Council Member Ujdak thanked everyone for coming to the Committee meeting. He noted that the next Committee meeting will be on Thursday,May 25th from 3 p.m. to 5 p.m. with the basic topic to be a"proprietors meeting-impacted businesses". It was suggested that notice of this meeting be given to all Iicensed adult businesses. Mr. Broden stated that he would contact Jeremy in the Controller's Office so that he could update the City Clerk's Office as to those businesses. There being no further business to come before the Committee, Council Member Ujdak adjourned the meeting at 4:20 p.m. Respectfully submitted, Council Member Andrew Udjak, Chairperson Health and Public Safety Committee KCF:kmf Attachments Health and Public Safety Committe Meeting Minutes of May 16,2000 Page 3