|
|
|
 |
Minutes are not a verbatim transcription but rather an attempt to capture the intent of the speaker by the City Clerk.
ITEM 1 - CALL TO ORDER
Mayor Murphy called the meeting to order at 7:00 p.m. in the Council Chambers, Lakewood Civic Center, 480 S. Allison Parkway, Lakewood, Colorado.
ITEM 2 - ROLL CALL
Those present were: Mayor Bob Murphy, Presiding
Diana Allen
Doug Anderson
Cindy Baroway
Karen Kellen
Sue King
Debbie Koop
Adam Paul
Ed Peterson
Tom Quinn
Vicki Stack
Staff in attendance: Mike Rock, City Manager
Paul Kennebeck, Deputy City Attorney
Full and timely notice of this Study Session had been given and a quorum was present.
Mayor Murphy welcomed viewers at home to the first televised City Council Study Session citing the commitment to increase two-way communication between Council and Lakewood citizens. He explained study sessions and added that this is being done on a trial basis for March meetings and would be done for topics of interest to the community-at-large down the road.
ITEM 3 - DISCUSSION - CABLE FRANCHISE ISSUES
Ken Fellman, Telecommunications Attorney provided legal framework for cable franchise issues. There are about eighteen states nationally that have limited or eliminated local franchising and have gone to a statewide franchise. The FCC adopted rules that dramatically limited local government authority. As the order affects revenues, the city receives a franchise fee (rent for use of public rights-of-way) equal to five percent of Comcast's gross revenues. Lakewood also receives a PEG (public education and government access) fee equal to fifty cents per subscriber per month (equal to a little over two hundred thousand dollars a year for Lakewood), which is used, for capital and equipment needs for government access (Channel 8).
Under the cable act, the city has a right to demand and negotiate for items in the franchise that are intended to meet the future cable-related needs of the community. Lakewood will start negotiations in about a year as the cable franchise is up for renewal in 2012. Council and staff will need to look at and determine whether Lakewood's government access operation is sufficient the way it is running now to meet the future cable-related needs of the community.
PEG stands for Public Education and Government Access and added that in the city's franchise agreement they have the ability to request a channel for government or educational access and for public access. The fifty-cent cap is not a legal limit under any statute, which is what Comcast passes through to subscribers.
Joni Inman stated that 100% of $200,000 that Lakewood receives goes to the Channel 8 budget.
Ken Fellman explained that if you think of franchise fees as compensation for the use of rights-of-way and you envision a world where all video programming is being provided without using any public rights-of-way, the way the law reads now, franchise fees would go away. There is nothing in the statue that allows for a fee to be imposed on satellite companies, as they are not using public rights-of-way.
Joni Inman added that Lakewood's cable subscriber numbers have remained static
for three to five years. The franchise fees have grown because those fees are
based on the revenue of the cable company.
Councilman Peterson asked if the wire goes away, is there any lobbying efforts
to see that fees that allow local government access channels to continue to
operate as a result of the overwhelming benefit to the public in general under
FCC regulations?
Ken Fellman responded that the National League of Cities National Municipal Policy does have a plank in it supporting a requirement that all video providers provide a public access capability. Currently, satellite companies don't have to do that. As we expand programming into the future, videostreaming is one way to make it available regardless of whether a person is a cable or satellite subscriber but to not have any funding from the companies, would require another source of revenue.
Joni Inman stated that we are entering into a contract with a commission-only sponsorship coordinator and her sole job will be to get sponsorships and alternative sources of funding for Channel 8, not for programming-specific shows.
Councilwoman Stack asked for clarification on the PEG fees.
Joni Inman answered that the 1.5 is the franchise fee that goes one hundred percent into the general fund and none of it goes into the operation of KLTV 8. The two hundred thousand is for salaries for contractors for capital equipment and repairs of such.
Councilwoman Koop inquired on the number of Lakewood households that have cable.
Joni Inman responded that it is fifty percent.
Councilwoman Koop further inquired if we know how many have satellite.
Joni Inman answered that we don't know because we don't have regulatory authority over them.
ITEM 4 - DISCUSSION - HEARING OFFICER FOR LIQUOR PUBLIC HEARINGS
Margy Greer, City Clerk discussed the proposal to replace the seven member Liquor Authority Board with a Public Hearing Officer who is a qualified attorney who deals with, and has experience and extensive knowledge of the liquor code which will streamline the process and provide more consistent rulings at a cost savings to the taxpayers. Currently, it costs from five hundred to seven hundred and fifty dollars in staff time per meeting and they meet twice a month. All seven members of the citizen board, as well as the police department, are in favor of this proposal.
Councilwoman Koop asked for elaboration on past problems and why the change to a one person Hearing Officer.
Margy Greer answered that the biggest reason is to streamline the process and
provide consistency. This is the most highly-regulated industry in the state
and liquor codes are very difficult to understand and when the Liquor Authority
has a contentious hearing, they have to hire an outside attorney anyway to advise
them during those public hearings. Some of the problems that we've had in the
past because of the regulations is the education that we have to provide and
that we have had trouble getting qualified applicants to sit on the board and
we've had lots of problems obtaining quorums. The current board is terrific.
However, at the end of March, we have four openings and we thought this would
be a good time to bring this issue forward.
Councilwoman Koop inquired about the hiring procedure and the cost to the city.
Margy Greer answered that she has spoken with the City Attorney and we would put together a request for proposal to qualified firms and individuals or we may do a job posting. We are hoping that the cost to the city will be in the same range that we're currently paying the outside attorney to come in, which is around 120-150 dollars an hour.
Councilwoman Koop asked if there would be staff costs during the hearing.
Margy Greer responded that we would have staff costs however; the hope is that the majority of the meetings would be held during regular work hours. There is still the capability of doing evening meetings, if necessary.
Councilwoman Baroway asked to hear from the board members who are present as to why they are in favor of this proposal.
Kristi Hansson, Chairperson for the Liquor Authority stated that there have been several instances where a hearing had to be continued due to there not being a quorum which doesn't serve an applicant or licensee trying to get their liquor license.
Sergeant Bob Major indicated that the police department supports this proposal for the reasons stipulated in the memo to Council from Margy Greer. The education aspect of the board as they rotate is a big issue because it is a complex set of laws. In fairness to the board, they don't have a lot of time to grasp those complex ideas and are forced to make a decision that they may not have as much information or as much knowledge base as they would like.
Councilwoman Baroway inquired if there is a board member who has gotten to the point where they are comfortable or very familiar with the regulations and they end up not being able to continue to serve due to term limits.
Kristi Hansson added that she had done liquor licensing when she was a City Attorney so that was her background when she came to the board. She stated that her second term will expire at the end of March.
Councilwoman Baroway stated there might be an issue with the imposed term limits. She asked if the involvement of the neighborhood would change if we go to a Public Hearing Officer or if we will follow the same procedures to involve the neighbors when needed.
Margy Greer responded that the procedures would be the same except the public would be talking to a Hearing Officer rather than a Board.
Councilwoman Baroway asked what the appeal process would be.
Margy Greer answered that it would be handled out of District Court, as it is currently.
Mayor Murphy asked Sergeant Major to clarify his role with the Liquor Authority on the Police Department.
Sergeant Major answered that he is the Sergeant in charge of the Special Investigations Unit, which is responsible for investigating liquor violations within the city from a criminal standpoint.
Councilwoman Allen stated that she likes the idea of getting one person who knows what they are doing but asked about public input. She asked what the public process is and how people find out that this is going on and what's going on in their neighborhood, how do we get the word out to them, how do they have an opportunity to say anything?
Margy Greer responded that all of the Liquor Authority agendas and public hearings are posted on the website and published in the newspapers. Several years ago, there was a contentious issue in Ward 2 over a new liquor license. At that time, we decided to extend the ten-day posting period to thirty days so that that neighborhood had time to petition on their own. The public hearings are similar to the hearings held in City Council on second reading ordinances.
Councilwoman Allen asked if people were having a problem with someone with a liquor license in their neighborhood, and they make a complaint, would that go to the police.
Sergeant Major answered that someone could call his unit and make the complaint and they would investigate it and may already be aware of it. We may have enough reason to believe there is a problem and would request a show cause hearing in front of the Liquor Board or cite them with a criminal summons as well.
Councilwoman Allen questioned if we would have leeway to hold the meeting in the evening. She asked if administrative policies would be put together where if people made that request it could be changed.
Margy Greer responded yes adding that the City Clerk's office has the right administratively to continue a public hearing once anyway. The reason that policy was put into place is due to the lack of quorums. None of the policies or procedures would change.
Councilwoman Allen inquired if having one person making these decisions is fair and equitable to the small business owners going for these licenses.
Margy Greer answered more so adding that over time we'll see more consistency with that.
Councilman Paul asked what the qualifications are to be a Board Member and
if there is any compensation given.
Margy Greer responded that there are no true qualifications spelled out in the
ordinance. The applications are reviewed through the Screening Committee and
City Council appoints them. There is no compensation.
Councilman Paul inquired if there are any other communities that have a Hearing Officer versus a Board.
Margy Greer indicated that the Cities of Denver and Ft. Collins have a Hearing Officer and the City of Greeley is looking into it.
Councilman Paul asked that when an issue goes into appeal, it goes to District Court but asked if there is an avenue to have citizen involvement in that process.
Margy Greer answered that it doesn't change.
Councilman Paul stated that if we do away with the citizen board, it would still go to District Court but through the Hearing Officer if there is a problem or an appeal.
Margy Greer added that even with the current seven-member board, the appeal process is to the District Court.
Mayor Murphy added that once it leaves Chambers, the process remains the same.
Mike Rock, City Manager added that we can't create a new requirement under the law because it's an industry that is already so heavily regulated so there wouldn't be a middle appeal between the Hearing Officer.
Councilwoman Stack stated that the biggest issue is that we are replacing the citizens and we, and the citizens have been wanting a lot of citizen involvement. She asked how long the Liquor Authority has been in place.
Paul Kennebeck indicated 1971 or 1972 adding that the when the city was first formed, City Council was the original Liquor Board and after a couple of years, they created a Liquor Authority to handle the matters.
Councilwoman Stack asked if we are just currently recognizing this problem.
Mike Rock responded that we've been discussing it for at least six or seven years.
Councilman Anderson stated that daytime meetings are difficult to do particularly when most of the hearings might not be more than one or two people beyond the complaining officer. But within natural tendency of a professional officer or agent to aim towards more regular hours and away from evening hours. He asked if there has been any concern towards that expressed.
Sergeant Major answered that a lot of the agents that appear, their regular hours are in the evening anyway because most of the problems occur at night.
Councilman Anderson asked if there has been notice sent out to the liquor licenses within Lakewood about this discussion and if not, do we plan to bring them into the discussion.
Margy Greer responded that no notices have gone out and there have been no discussions prior to tonight.
Councilman Anderson added that going from seven down to one seems like a dramatic change and there is some value in going to a single professional who has a deep understanding of the law and can provide consistency over a period of time but there is a loss when you go away from citizens and there is a difference between a judge and a jury. He asked if going to a three-member citizen commission to back up an individual might eliminate some of the problems of quorums.
Mayor Murphy indicated there is nothing in the proposal prohibiting neighbors from showing up and giving public testimony in any hearing for a new license or any show cause hearing. Nothing in terms of neighborhood and citizen involvement changes.
Mike Rock added that the same discussion occurs every time a city goes from a City Council hearing it to a Liquor Authority and yet, that is the way this city went many years ago. The issue is always one of consistency and there is nothing in this proposal that changes the ability to have evening meetings, diminishes citizen participation, makes it more difficult for a small business operator other than that small business operator will be assured of a consistent application of the law rather than the potential for pressure, either direction, on seven citizens who have to relearn this on a regular basis. The people who do it and the attorney who represents the board are saying it's a good idea. We haven't heard from anyone who said it's a bad idea.
Councilman Anderson stated that he thinks it's appropriate to send a notice to the liquor license operators in the city. He expressed concerns over the dollar differences because it sounds like it's going to cost more to go this route over the long term and he wonders if we're not going to find ourselves holding more daytime meetings that neighbors don't feel invited to.
Mayor Murphy added that he heard very clearly that this will cost us less, which is one of the reasons for doing it. He asked for clarification on existing operators asking if they come in every year for a new license.
Margy Greer indicated that they are renewed through the mail. She added that the majority of the small business or liquor licensees are unaware whether it's a seven-member board or a hearing officer today unless there is a complaint and they come in.
Councilwoman Allen asked for a percentage on how often the public is concerned about one of these hearings.
Paul Kennebeck, Deputy City Attorney stated that on new applications where the neighborhood is opposed to the issuance of a license, we've had two in the last two years. People don't come in regularly to a show cause hearing but, when you have contentious hearing, the neighbors do come and testify.
Councilwoman Allen stated her opinions on the proposal. She also said she has a fear about liability with the seven member panel due to their inexperience in the liquor laws.
Councilwoman Baroway asked who would be responsible for the hearing officer's activities.
Margy Greer answered that she would be.
Councilwoman Baroway added that anytime you have a scenario where you're involving the law you want to be consistent and by having one person who understands the law would be beneficial so long as we continue to help our citizens understand that they do have a voice and their voice will be heard at these hearings.
Margy Greer indicated that the Liquor Authority has rules, procedures and sanction guidelines that they go by and have adopted. They have a list of mitigating and aggravating circumstances they can look at. We intend to have a study session with the current seven-member board and have them readopt those and hand them over to the Hearing Officer and advise them that this is the way Lakewood does business.
Councilwoman King asked if we were to go with a Hearing Officer, what kind of time frame are we looking at to put that person into place.
Margy Greer responded that if we move forward with the amended ordinances, the first reading would come to Council on the third Monday in March so somewhere in the middle of May before it would become effective.
Councilman Quinn asked if the Hearing Officer would be under contract with the city or a city employee.
Margy Greer answered that that hasn't been decided yet.
Councilwoman Baroway inquired if it would be a permanent part-time position.
Margy Greer responded that it could be that or contract.
Councilman Quinn asked if there is a breakdown in terms of the time that the Authority spends on new license applications versus hearing violation cases.
Margy Greer answered that the new applications go much quicker because they are based on the needs and desires surveys and the people that come to the podium but the violation hearings are much more involved. Maybe in a two-hour meeting, we can resolve three new applicants to every one or two public hearings for violations.
Councilwoman Kellen asked how often the attorney is called into the Authority's meetings.
Margy Greer responded that an outside attorney comes in about once a month.
Councilwoman Kellen asked if, in terms of the appeal process, the petitioning entity doesn't get their license and appeal to the District Court, what is the remedy in District Court.
Paul Kennebeck answered that it's a 106 appeal that is mandated by statute so that if the applicant for a new license were not granted a license, he would appeal to Jefferson County District Court by bringing a lawsuit against the City of Lakewood. There is no citizen input on that level.
Councilwoman Kellen further inquired if they prevail on the lawsuit, what is the remedy in terms of granting the license or damages.
Paul Kennebeck responded that the sole question before the District Court is whether or not the Hearing Officer abused his discretion. We've only lost one appeal in ten to fifteen years because of the way the law is written. If the Hearing Officer makes finding to allow or disallow the license and there is anything in the record to support that Hearing Officer, the District Court has to uphold them. All the Court can say is that the Hearing Officer abused his discretion and send the matter back to the Hearing Officer to rehear or reconsider the matter.
Councilman Peterson stated that he doesn't understand the confusion among Council as the same procedures would be followed and the only change is substituting a professional Hearing Officer in lieu of a Board and the current sitting Board supports this change unanimously. He asked if this does move forward if hearings could continue to be held in the evening instead of the daytime to allow public comment.
Margy Greer answered that she would propose that we only hold those when we know there is going to be a contentious issue.
Councilman Peterson asked if the opinion of the City Clerk is by going to a Hearing Officer we will save money, increase efficiency and remove inconsistency in the licensing process for small businesses in the City of Lakewood that open bars or sell liquor. He further asked if this would translate into a net savings even with the cost of the Hearing Officer.
Margy Greer answered yes.
Councilwoman Koop stated that she received phone calls and e-mails from Ward 2 citizens who were concerned about reducing the citizen input. She asked if there have been any liquor licenses in the near past that have been denied.
Margy Greer answered no.
Paul Kennebeck responded that we have when the city has gotten involved for bringing a case of what the liquor code calls "bad moral character" against an owner. The city only takes a position on a new license when the police gave us enough information that showed that the applicant was of "bad moral character."
Councilwoman Koop inquired if there have been any denials because the neighborhood feels they don't need another liquor store.
Margy Greer answered that the new applications are based on what the state statute says are the needs and desires of the neighborhood. The Board or the Hearing Officer has the right to give the weight that they want to, to either the petition or the people that come to the hearing.
Councilwoman Koop further inquired if the neighborhood does not have as many signatures on their petition as the paid petitioner, they could still rule for the neighborhood.
Margy Greer confirmed with Paul Kennebeck that was correct.
Paul Kennebeck added that the best evidence that can be presented besides the petition is to have the neighbors appear to testify. The Liquor Authority is more impressed by people leaving their house to make a presentation than a petition.
Councilwoman Stack asked if there are staff recommendations in the Liquor Authority meetings.
Margy Greer answered that they take the complaint into consideration. Paul Kennebeck represents the city side of that complaint.
Paul Kennebeck added that new licenses are controlled by statute so unless it's an issue of bad moral character, it comes down to needs and desires of the inhabitants of the neighborhood and there is no staff recommendation.
Councilwoman Stack asked about the dollar savings.
Margy Greer clarified that if we are paying currently one hundred and twenty dollars an hour for an outside attorney at every other meeting, that's two hundred and forty dollars that would go to a Hearing Officer instead for that meeting. If we are currently paying five to seven hundred and fifty dollars in staff time in the evening, we would be saving a portion of that as well.
Councilwoman Stack stated that moving meetings back and forth between day and nighttime becomes problematic to citizens.
Margy Greer stated that we only have two to three contentious meetings per year, if that.
Mike Rock added that when there is a violation hearing or a new license, it's very specific to that neighborhood. We are recommending this because we believe it is good public policy, it will reduce the city's liability, because we've heard from the people doing it over the years that the system doesn't work very well and it will provide you a much greater degree of consistency in the process. When and how you schedule meetings is issue-specific just like it is now.
Mayor Murphy added that the police department also recommends moving this forward.
Councilwoman Stack asked if we are not getting people from the liquor industry to sit on our Boards to judge their own peers.
Margy Greer answered that having our licensees on the Board would be a conflict of interest.
Paul Kennebeck added that if you had a Liquor Authority of one or two members that were also licensees, you could conceivably get rid of their competition, there is a conflict aspect there.
Mike Rock added that this is a regulated industry and is different than any other Board or Commission.
Councilman Paul asked if there would be a liability to the city to offer to have the meeting during the day.
Paul Kennebeck answered no, adding that the city would have its own procedures in place of when to have their meetings and as long the city was consistent, there should be no claim against the city for any type of discrimination or bias.
Councilman Anderson asked if there is an opportunity for, without causing a legal problem, either the Ward Council members or the Mayor to ask that a meeting be held in the evening and have that be a directive.
Paul Kennebeck responded that it would be best if the request were made by the applicant, citizen, or city staff. Interposing from a Council level is problematic.
Mike Rock added particularly if it was a directive. Scheduling has always been dictated by the level of interest. He suggested that we could go through the meetings for the past twenty four months and get a list of everyone who has testified to give context to how frequently there might be a meeting that is best held in the evening versus during the daytime. We have the ability to adapt to whatever the neighborhood's needs are and we wouldn't want a situation where a Councilmember or the Mayor was directing because that is outside the bounds as policy makers.
Councilman Anderson expressed his desire to get word out to the licensees before the issue is voted on by Council.
Margy Greer indicated that there is a quarterly newsletter that is sent to all licensees and if the Council wants, we would notify them in that newsletter prior to Council taking action. She added that in fairness, that same information be sent to all of the homeowner's associations so that everyone is aware of it.
Councilwoman Baroway suggested it be posted on the city website.
Mike Rock stated that the information would be posted on the city website but nothing should go out specifically to the homeowner's associations.
Councilwoman Allen asked if the Friday Report goes to the Business Associations.
Joni Inman indicated that it is not going to the Business Associations but starting this Friday, it would be going to the homeowner's associations.
Councilwoman Allen asked if the information could be included in the Friday Report.
Joni Inman responded that it could and that the Business Associations could be added to the distribution list.
Councilwoman Stack asked why we need to do this within two weeks.
Margy Greer answered that the importance behind it is that we have four members that will be off of the Board at the end of March. However, there is a procedure in place where they can stay on the Board until new people are elected.
Mayor Murphy stated that the first reading, if we choose to move this forward, would be March 24 and the public hearing on the item would be April 14.
Mayor Murphy added that there are other opportunities on other commissions and encouraged them to stay involved. He asked if there is consensus to move this forward. He thanked everyone for good questions and thanked Sergeant Major and the Board for their work.
ITEM 5 - REPORTS
Mayor and City Council reported their attendance at previous meetings and events and announced upcoming neighborhood meetings and events.
ITEM 6 - ADJOURNMENT
There being no further business to come before the Council; Mayor Murphy adjourned the meeting at 8:41 p.m.
Submitted by,
Margy Greer, City Clerk
 |
||
Americans with Disability Act (ADA) Notice |
||
