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HomeMy WebLinkAbout06-05-00 Health & Public Safety I. 1 lommitte wort: 7 UUfJ a Zit §afttv (Committee The June 5, 2000 meeting of the Health and Public Safety Committee was called to order by its Chairperson, Council Member Andrew Ujdak at 3:00 pm in the Council Informal Meeting room. Persons in attendance included Council Members Aranowski, Pfeifer, King, Ujdak, White and Kirsits; John Broden, City Attorney, Police Chief Larry Bennett, Ronald L. Ingle, Eric Gearhart, Carl Kay, Pam Little, Jim Frick, Les Fox, Patrick Mangan, Joseph P. Sergio, Sam Walsh, Felipe Merion, members of the news media, and Terry Bland of the $otttb Dolt tribute, and Kathleen Cekanski-Farrand, Council Attorney. Council Member Ujdak welcomed everyone to the Committee meeting and noted that it was called as a "wrap-up meeting" on the Adult Business Ordinance proposed by the City Administration. He inquired whether everyone had received a copy of the proposed substitute Bill No. 00-28 prepared by City Attorney John Broden. Mr. Broden stated that it had only been sent to Council Member Ujdak and the Council Attorney. The Council Attorney suggested that before it is distributed that it be reformatted into ordinance form by including the "statement of purpose and intent" section with the elimination of the "whereas" format; and that it include a severability section. Council Member Ujdak requested that in light of the Mayor being out of town on June 12th when the Bill is scheduled for public hearing, that Mr. Broden consider continuing the bill until the first meeting in July. Mr. Broden stated that the Mishawaka ordinance had oral argument before the Honorable Judge Allen Sharpe of the U.S. District Court for the Northern District of Indiana on May 19th. That ordinance does contain the ten foot rules and distance regulations, however it is silent on alcoholic beverages. Council Member Ujdak asked the City Attorney to again address the issues of constitutional taking, pre-emption and the potential cost to the city if the ordinance is legally challenged. Mr. Broden noted that the substitute bill sets forth in the "whereas"clauses a summary of much of the information heard by the Health and Public Safety Committee. He stated that this would be reformatted into a proper "Statement of Purpose and Intent" and that it incorporates many of the items from other ordinances addressing adult businesses. With regard to the potential cost, he noted that Bruce Taylor is the attorney assisting the city of Mishawaka. He noted that he is doing that at no cost to the city of Mishawaka except for out-of-pocket expenses, plus a minimum fee arrangement. Mr. Broden stated that he does not anticipate the need for outside legal counsel. He anticipates that it would be a summary judgment type action with much of the research having been conducted during the preparation of the ordinance. Mr. Broden noted that the pre-emption issue would be one of first impression with regard to the alcoholic beverage issue. He noted that this is the more "difficult legal prong" of the ordinance. There are only two (2) Supreme Court cases in this area,and the O'Bannon case addresses a zoning issue as opposed to a licensing issue. Mr. Broden noted that if an injunction would be requested,the City would permit the adult businesses to continue to operate. The Council Attorney noted that a recent 9th Circuit Court of Appeals case addressing the City of San Diego's adult business licensing regulations was struck down since they did not incorporate language permitting the businesses to continue to operate while challenging the regulations legally. • Health and Public Safety Committee June 5, 2000 Page 2 Mr. Broden noted that compensation would only be an issue if the plaintiff(s) prevail. He further noted that if the city would not prevail on the constitutional issue of taking that that may trigger attorney fees. He noted that the 1999 Fort Wayne case located at 704 N.E. 2D 1069 addresses pre-emption as well as liquor permit holders. He stated that they were similar to transient merchants for festival activities which required a license fee between $ 500 to$ 1,000. It was held invalid. In the City of Dallas case the welfare of the people was stressed with regard to additional restrictions on establishments serving alcoholic beverages, however Mr. Broden noted that it did not address 10 p.m. Closing times. Mr. Patrick E. Mangan, a public policy consultant with Citizens for Community Values, Inc., noted that at the last Committee meeting the "porn/sex industry" had their opportunity to address the Council. In response to their information the Citizens for Community Values,Inc. had compiled a document dated June 2,2000 addressing the"Need for Action on Proposed Changes to Adult Business Ordinance"(copy attached). He stated that the position of the spokespersons for the"porn/sex industry"is difficult to understand since women are being exploited and the financial impact he stated is "ludicrous". Mr. Mangan stated that hundreds of calls regarding prostitution and other illegal activities are made to the police department as a result of the concentration of adult businesses on Michigan Street. Over 1,500 pages of studies have been presented to the Committee at prior meetings on this topic. Mr. Jim Frick, the owner of Dairy Queen located on South Michigan and President of the South Gateway Corridor stated that there are eighty (84) members of the South Gateway Association which is trying to revitalize South Michigan. He noted that there are currently thirty (30) vacant buildings along South Michigan. Mr. Frick urged the Council to pass the proposed bill. Carl Kay noted that he has been in business for approximately forty (40) and located on South Michigan for the past twenty-five (25) years. He noted that the business corridor north of him is deteriorating and he is afraid that it will move further south. Eric Gearhart, the manager of Richards Restaurant located on South Michigan stated that he has a seven-year-old daughter. He stated that when he drives with his daughter on South Michigan and she asks to see the kittens at the"Kitty Kat"lounge, he does not know how to respond. Ronald L. Ingle, the Public Safety Director of Scottsdale Mall, spoke in favor of the bill. Sam Walsh, a retired South Bend Police Officer, and now owner of Gloria Jeans Coffees in Scottsdale Mall, noted that he had worked as a beat officer and Special Operations on South Michigan from 1970 to 1975. He stated that he saw the area as a"magnet for crime". Several of his homicide investigations including stabbings, aggravated assaults. He stated that when he was involved with Crime Stoppers that many of the crimes were not reported because of the embarrassment of having them occur at an adult business. He noted the problems of prostitution from the strip bars. He concluded that if South Michigan could be cleaned up that more businesses would locate to the area and that would help Scottsdale Mall rebound. Les Fox of Adult Services noted that he always tells his employees and volunteers to be a part of the solution if there is a problem. The board whom he works for is currently considering • • Health and Public Safety Committee June 5, 2000 Page 23 expansion. Their building is seven years old and the staff is predominately women. He is concerned about the well-being of his employees and the patrons who come to his establishment. Mr. Joseph Sergio of Citizens for Community Values, Inc. stated that he is a business owner on South Michigan with over seventy (70) employees. He stated that for many years his business has been trying to co-exist with the effects of adult business. He is overwhelming in favor of the proposed bill. He finds the process frustrating. Businesses are being hurt because of crime. He stated that the operators of the adult businesses are not their friends. He stated that they attack the Center for the Homeless at the last Committee meeting which he believes is unwarranted. He further noted that timing is everything. The recent killing in the parking lot of the Kitty Kat lounge would not have happened if it had been required to close at 10 p.m. He urged the Committee not to wait for Judge Sharpe's opinion since it will probably be continued. Felipe Meriono, a representative of the Calvary Temple located at 3717 South Michigan stated that he is the Director of the South Bend Dream Center. He works directly with youth. He sees the prostitution and the strip bars and their negative effects and their negative influence on the youth. Mr. Mangan stated that the process started approximately five (5)years ago when the Adult Emporium came here which had national backing and is now the largest adult book store in the nation. They organized within thirty(30) days. The city has been studying this bill for fifteen(15) months, and there has been far more evidence here than any where else. He noted that the Business Districts, Inc. study showed that public safety issues dominate in this area. The Troyer Group study of 1998 highlighted the negative ID for this area. Mr. Mangan thanked the Committee for the thoroughness of the process, but requested a prompt vote and a hearing no later than June 26th. Council Member Kirsits thanked everyone for their input. He noted that the written information has been helpful. Council Member Ujdak stated that the Common Council got the proposed bill just two (2) months ago. He stated that his Committee and the Council must "perform due diligence". He stated that"it would be foolhardy to run with the bill unless it is strong". He noted that if the 10 p.m. closing had been in effect the shooting at the Kitty Kat would have probably just taken place some where else. He stated that he would like to address all corridors and that there is a lot of work ahead in this area. He noted that crack houses are the highest priority now and he agrees with the Police Chief on that priority. Council Member Ujdak then highlighted three(3)items: 1. Mishawaka Ordinance He recommended that if the Mishawaka ordinance mirrors the South Bend ordinance in several areas that he would like to wait until Judge Sharpe hands down his ruling so that we can learn from that decision and make adjustments within the ordinance. 2. Constitutional Scholar He recommended that the city hire a constitutional scholar to review the city's proposed bill before final action is taken. 3. Continuance Until July 10th He suggested that the bill be continued until the first meeting in July to permit the city to review the District Court opinion on the Mishawaka ordinance and to permit a professor from the Notre Dame Law School to review the city's bill. • Health and Public Safety Committee June 5,2000 Page 3 expansion. Their building is seven years old and the staff is predominately women. He is concerned about the well-being of his employees and the patrons who come to his establishment. Mr. Joseph Sergio of Citizens for Community Values, Inc. stated that he is a business owner on South Michigan with over seventy (70) employees. He stated that for many years his business has been trying to co-exist with the effects of adult business. He is overwhelming in favor of the proposed bill. He finds the process frustrating. Businesses are being hurt because of crime. He stated that the operators of the adult businesses are not their friends. He stated that they attack the Center for the Homeless at the last Committee meeting which he believes is unwarranted. He further noted that timing is everything. The recent killing in the parking lot of the Kitty Kat lounge would not have happened if it had been required to close at 10 p.m. He urged the Committee not to wait for Judge Sharpe's opinion since it will probably be continued. Felipe Meriono, a representative of the Calvary Temple located at 3717 South Michigan stated that he is the Director of the South Bend Dream Center. He works directly with youth. He sees the prostitution and the strip bars and their negative effects and their negative influence on the youth. Mr. Mangan stated that the process started approximately five(5)years ago when the Adult Emporium came here which had national backing and is now the largest adult book store in the nation. They organized within thirty(30) days. The city has been studying this bill for fifteen(15) months, and there has been far more evidence here than any where else. He noted that the Business Districts, Inc. study showed that public safety issues dominate in this area. The Troyer Group study of 1998 highlighted the negative ID for this area. Mr. Mangan thanked the Committee for the thoroughness of the process, but requested a prompt vote and a hearing no later than June 26th. Council Member Kirsits thanked everyone for their input. He noted that the written information has been very helpful. Council Member Ujdak stated that the Common Council got the proposed bill just two (2) months ago. He stated that his Committee and the Council must "perform due diligence". He stated that "it would be foolhardy to run with the bill unless it is strong". He noted that if the 10 p.m. closing had been in effect the shooting at the Kitty Kat would have probably just taken place some where else. He stated that he would like to address all corridors and that there is a lot of work ahead in this area. He noted that crack houses are the highest priority now and he agrees with the Police Chief on that priority. Council Member Ujdak then highlighted three(3) items: 1. Mishawaka Ordinance He recommended that if the Mishawaka ordinance mirrors the South Bend ordinance in several areas that he would like to wait until Judge Sharpe hands down his ruling so that we can learn from that decision and make adjustments within the ordinance. 2. Constitutional Scholar He recommended that the city hire a constitutional scholar to review the city's proposed bill before final action is taken. 3. Continuance Until July 10th He suggested that the bill be continued until the first meeting in July to permit the city to review the District Court opinion on the Mishawaka ordinance and to permit a professor from the Notre Dame Law School to review the city's bill. Health and Public Safety Committee June 5, 2000 Page 4 Mr. Sergio voiced opposition to Council Member's suggestions. Council Member Ujdak stated he is not trying to be an obstructionist, but rather believes that further review is necessary before a Council vote is taken. The Council Attorney noted that Council Member Ujdak requested her to research several areas which are currently not being addressed by the proposed bill. Council Member Ujdak noted that some of the areas which she is currently reviewing include: 1. Licensing entertainers with background checks and photo identification cards being a part of the regulations. 2. Licensing managers of each adult business with background checks and photo identification cards being a part of the regulations. 3. Placing a limit on the total number of adult businesses which could be located within the city. The Council Attorney added that the bill in her opinion should also contain specific legislative findings as a separate section, rules and regulations for the Controller's office with regard to disseminating information to the Council on an annual basis, and a severability clause. She noted that many ordinances from other communities include licensing of entertainers and managers for health and public safety concerns to help deter criminal activities. She stated that in the state of Washington cities and counties work together via interlocal governmental agreements with regard to the location of adult businesses. Council Member Ujdak stated that he would have much of this information available by Wednesday of this week. Council Member King stated that he believes that the Council has a duty to proceed carefully and thoroughly, especially when constitutional concerns are at stake. He added that the idea of hiring a constitutional scholar from the law school would be very beneficial. He noted that he has seen the results of secondary negative effects and believes that reasonable effective solutions should be pursued. Council Member Aranowski noted that the Council did a thorough job when it considered new regulations governing pawn shops and taxicabs. He stated that the process took longer than originally anticipated,but that each bill was better as a result of the process. Mr. Sergio stated that he travels nationally with his organization and that he too would like to have the bill be as strong as possible. He encouraged the Committee to move forward and to commit to a specific date when final action would be taken. Mr. Mangan stated that he could assist the city in having access to Mr. Taylor. He suggested that a cooperative spirit by all would enable progress. He suggested that notice be provided to his group in light of the many individuals who would like to be present for the public hearing. Council President Pfeifer stated that the Council will not be pressured into a specific date for a hearing. She noted that many individuls have voiced concern in the past there were not enough opportunities for the public to address topics before the Council takes final action. She • Health and Public Safety Committee June 5, 2000 Page 5 agreed with Council Member Ujdak's suggestion noting that it would make the proposed bill stronger. She suggested that the Council attempt to give at least two(2) weeks notice before the bill is scheduled for public hearing. Following discussion, Council Member Ujdak stated that he would attempt as much as possible to adhere to the notice provisions suggested by the Council President. He thanked everyone in attendance for their input and requested the members of the public to continue to work with the city on this topic. There being no further business to come before the Committee, Council Member Ujdak adjourned the meeting at 4:50 p.m. Respectfully submitted, Council Member Andrew Ujdak, Chairperson Health and Public Safety Committee KCF:kmf Attachments