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PROCEEDINGS OF THE CITY COUNCIL
OF THE CITY OF GRAND FORKS, NORTH DAKOTA
June 6, 2005

The city council of the city of Grand Forks, North Dakota met in the council chambers in City Hall on Monday, June 6, 2005 at the hour of 7:00 o’clock p.m. with President Gershman presiding. Present at roll call were Council Members Hamerlik, Glassheim, Christensen, Kerian, Kreun, Gershman - 6; absent: none (Council Member Brooks came in later in the meeting).

Cub Scout Pack 13 of Holy Family School led the city council in the pledge of allegiance to flag, Jeff Regimbal, club master.

President Gershman announced that anyone wishing to speak to any item may do so by being recognized prior to a vote being taken on the matter, and that the meeting is being televised.

President Gershman commented on various events during the past week and upcoming events:
The Relay for Life was held and nearly 800 people participated and they raised $160,000 to fight cancer.
Quilting on the Red was held this past weekend and featured more than 200 community quilts that were on display and that 36 of the quilts were part of a silent auction in support of the Relay for Life. He thanked all of the organizers and sponsors and especially those who attended in support of these events.
This coming weekend ArtFest on Saturday and Sunday, June 11 and 12, downtown on the greenway.

Mosquitoes: Don Shields, Health Department, stated that crews have been out larviciding since late March or early April and have seen the effects of that in having lower numbers of mosquitoes in town, and mosquito levels in county areas west of the airport have been quite high - that numbers in the city have been going up and this morning our mosquito count was 72 and soon kicking off some city-wide ground spraying and that the crews are in place and equipment in place, and chemicals in place to make that happen and are prepared to do that. He stated there are some things that citizens will need to do - wearing mosquito control repellent, long sleeve shirts and avoid dusk and dawn where have the highest level of mosquitoes. The mosquitoes currently seeing in town are nuisance mosquitoes, seeing a few West Nile type carrying mosquitoes but not predominant type mosquito and those will come later in the season.

Council Member Hamerlik asked if they are planning or have something available to assure people this weekend that wish to attend ArtFest to be mosquito free or nearly so this weekend. Mr. Shields stated that a policy established by the council several years ago was that on city-wide events such as 4th of July and ArtFest and Relay in the parks, they do go out and make sure they do control the mosquitoes in those areas and will go out and provide some additional treatments in those areas. President Gershman stated that when windy outside, very few mosquitoes, and when people have exposed patios, suggested putting out a big fan and keep the air moving and doesn't have a problem with mosquitoes.

MONTHLY FLOOD REPORT UPDATE

Alan Grasser, city engineer, stated that the weather has had an impact on some of their projects, things are slowing down because of the wet weather, the Lift Station project in Lincoln Park at 15th and Belmont Road has slowed down, contractor waiting for drier weather, vegetation control is an issue especially on sides of the dike and too wet to get up there with equipment safely, and will get on these things when the weather cooperates. He stated on Phase IV the advertisements will go out in June and still scheduled for bids the middle of July and that will be the final phase of the flood protection project. A short video presentation was made.

Council Member Glassheim stated the floodwall is proceeding rapidly in his neighborhood and thanked Corps and staff that designed it, and doesn't feel like being hemmed in.

Council Member Christensen stated in his area the floodwall has been painted and asked if someone would follow up with the Corps as there are areas of the dike that now need grass planted on them as dike starting to erode, and the area that has vegetation growing and should be mowed and asked Mr. Grasser to look into those areas, esp. in Sunbeam area where no grass has been planted on the dike.

Council Member Kreun stated one of the things they did many years ago was take input from the citizens and that one of the requests that was adamantly portrayed that floodwalls shouldn't look utilitarian or prison-like and pump stations in the community, those buildings were designed to blend in with that particular neighborhood, and have had some criticism because spending too much money on the out buildings - but because of request of our citizens to make it as aesthetically pleasing as possible.

The greenway report was presented for council's information. President Gershman asked staff to look to see if other communities have had sponsorships of the benches and bridges so get some yearly revenue for maintenance, etc., to check it out and give report later.

ADOPT RESOLUTION VACATING UTILITY EASEMENT
LYING WITHIN LOT 13, BLOCK 6, UNIVERSITY HEIGHTS
ADDITION

The city auditor reported that pursuant to instructions by the city council after having received a petition to vacate the utility easement in the northerly 7.5 feet of the westerly 70 feet of a 15-foot wide utility easement along the south side yard of Lot 13, Block 6, University Heights Addition, the required legal notice had been published calling for a public hearing to be held this evening, and further that no protests or grievances had been filed with the auditor's office.

President Gershman opened the public hearing, there were no comments and the public hearing was closed.

It was moved by Council Member Kreun and seconded by Council Member Hamerlik that we find and determine an insufficiency of protest to the proposed vacation. Carried 6 votes affirmative.

Council Member Kreun introduced the following resolution which was presented and read: Document No. 8718 - Resolution.

It was moved by Council Member Kreun and seconded by Council Member Hamerlik that this resolution be adopted. Carried 6 votes affirmative.

ADOPT RESOLUTION VACATING UTILITY EASEMENT
LYING WITHIN LOTS 1-14, BLOCK 4, OLSON'S ADDITION

The city auditor reported that pursuant to instructions by the city council after having received a petition to vacate all; power, telephone and stormwater drainage easements lying within Lots 1 - 14, Block 4, Olson's Addition, the required legal notice had been published calling or a public hearing to be held this evening, and further that no protests or grievances had been filed with the auditor's office.

President Gershman opened the public hearing, there were no comments and the public hearing was closed.

It was moved by Council Member Kreun and seconded by Council Member Hamerlik that we find and determine an insufficiency of protest to the proposed vacation. Carried 6 votes affirmative.

Council Member Kreun introduced the following resolution which was presented and read: Document No. 8719 - Resolution.

It was moved by Council Member Kreun and seconded by Council Member Hamerlik that this resolution be adopted. Carried 6 votes affirmative.

ADOPT RESOLUTION VACATING STREET ACCESS,
RIGHT OF WAY FOR STREET AND ALLEY PURPOSES
IN CURRAN'S 1ST ADDITION

The city auditor reported that pursuant to instructions by the city council after having received a petition to vacate the 40-foot wide access street, the 80-foot wide 42nd Avenue South right of way, and the 20-foot wide right of way for alley purposes in Curran's 1st Subdivision, the required legal notice had been published call for a public hearing to be held this evening, and further that no protests or grievances had been filed with the auditor's office.

President Gershman opened the public hearing, there were no comments and the public hearing was closed.

It was moved by Council Member Kreun and seconded by Council Member Hamerlik that we find and determine an insufficiency of protest to the proposed vacation. Carried 6 votes affirmative.

Council Member Kreun introduced the following resolution which was presented and read: Document No. 8720 - Resolution.

It was moved by Council Member Kreun and seconded by Council Member Hamerlik that this resolution be adopted. Carried 6 votes affirmative.

APPROVE APPLICATIONS FOR 3-YEAR EXEMPTION OF
VARIOUS RESIDENTIAL AND COMERCIAL BUILDINGS

The staff report from the city assessor relating to applications for exemption of remodeling improvements to commercial and residential buildings as follows: 2750 17th Avenue South, 1714 Lewis Boulevard, 1628 Lewis Boulevard, 521 South 6th Street, 1011 Campbell Drive, 729 Belmont Road, 1103 North 20th Street, and 502 28th Avenue South, with recommendation to grant exemptions of increased value for 3 years.

It was moved by Council Member Glassheim and seconded by Council Member Kreun that this recommendation be approved. upon roll call the following voted "aye": Council Members Hamerlik, Glassheim, Christensen, Kerian, Kreun, Gershman - 6; voting "nay": none. President Gershman declared the motion carried.

APPROVE 2006 BUDGET RECOMMENDATION

The staff report from the Grand Forks City Council relating to budget resolution, with recommendation that the Grand Forks City Council resolves that we have established as our goal for the 2006 budget to reduce the mill levy by 9 mills. The City's share of the total mill levy is 23.9%. Our reduction will return approximately 74% of the increased dollar amount the City will receive from the evaluation process. We further resolve to work with the other taxing entities in Grand Forks County to reduce the tax burden.

Council Member Glassheim stated this is a recommendation to ask staff to reduce the City's mills by 9 mills, that he feels this is too high, the additional money that the City of Grand Forks anticipates getting from the increased valuations is some $750,000 and an additional $500,000 from new construction, and it seems to him that the council should decrease our mills that we charge by the amount of increased valuations, that would amount to about 7 mills. He stated the additional $500,000 that the City would be getting this year from new properties coming on the tax rolls, that he didn't think we should be giving back to the public parts of that money as we need that money to pay for additional services in the new areas; that the whole premise of growth is that there will be new money coming into the general fund and some of that new money will be required for additional police, fire and street services so it seems we were giving back too much of the increase that we will get, and everybody knows that the City only gets one-quarter of the property tax, and that we are trying to make up for additional money that other entities are gaining from the re-evaluations and from the new property taxes - and doesn't seem to be the right way to run the city and should require that we aim for 7 mills.

Council Member Kreun stated that he made that he has had comments from people that the City needs to do something about the taxes in Grand Forks and explained that some of the other taxing entities (Park District, School District and County) have the same taxing authority as the city council does, they are elected officials and set their own mill levy, and that it is only 25% of the tax budget comes to the City and the rest goes to the other three taxing entities, that the School District takes 46 or 48%, County takes about 20% and Park District takes 9%, and the City sets mill rates only for the City, and very important that we bring this message out because those other taxing entities have to be responsible for their dollars the same as the city council, and if people have a concern with their taxes, have to contact the other taxing entities elected officials to get same response as you did from the city council. He stated city council very responsive, are the only ones on t.v. and have more transparency in this particular government than any other entity there is in Grand Forks.

Council Member Hamerlik explained that it is too hard to target a specific 9 mills; moved the resolution and to insert the following wording, "mill levy by not less than 9 mills". Council Member Christensen seconded the motion.

Council Member Kerian stated that is a target and wants to know what are the issues that we are going to face because each year we have talked about things in terms of road building, greenway maintenance, etc. and wants to know what kinds of returns we are going to get before we set a minimum.

Council Member Glassheim stated that the recommended motion that came from the budget committee was agreed to by the budget recommendation committee was to set a goal of 9 mills as it is written.

After further discussion Council Member Hamerlik moved to delete the extra wording "not less than 9 mills", and Council Member Christensen removed his second to the motion.

President Gershman stated he disagrees with Council Member Glassheim on the new construction and reason supports 9 mills because we are constantly telling the citizens of Grand Forks that as development occurs and attract more business to Grand Forks, that their taxes will go down because of that, and should return 74% of the increase back to the citizens of Grand Forks.

Council Member Christensen stated that we have a Growth Fund and extract a sales tax and then allocate some of that tax back to business growth, other taxing entities can't do that, and we also have a sales tax of which we take 30% for infrastructure and also have enterprise funds that generate revenue so there are other opportunities for this elected body to find sources of revenue to meet the on-going needs that the city government is supposed to take care of, we lay framework and foundation for all these other entities to interact within this community and those entities do pay special assessments for our dike, and glad the other entities found it in their budgeting process to reduce their mills and would hope that as the final budget comes in from the School District would find a few more mills reduction and would urge people to contact those who run for office in the other entities and express displeasure with the high tax bills you get from those entities.

Council Member Christensen seconded the original motion. Upon call for the question and upon voice vote, the motion carried 6 votes affirmative.

APPROVE COMMITTEE RECOMMENDATION FOR
TRUNK SANITARY SEWER

The staff report from the city engineer relating to the matter of recommendation from Service/Safety Standby Committee for trunk sanitary sewer, with recommendation for approval of the committee recommendation. (Recommendation that the policy for trunk sanitary sewer infrastructure is that we establish large tapping areas but exclude from those properties currently receiving trunk infrastructure services in the city, and that this is a replacement for the previous trunk infrastructure policy).

It was moved by Council Member Glassheim and seconded by Council Member Kreun that this recommendation be approved. Carried 6 votes affirmative.

CREATE INFRASTRUCTURE CONNECTION FEE
DISTRICT FOR PROJECT NO. 5774, TRUNK SANITARY
SEWER

The staff report from the engineering department relating to creating infrastructure connection fee district for Project No. 5774, trunk sanitary sewer along 40th Avenue South from South 20th Street to South Washington Street, with recommendation to approve engineer's report, create infrastructure connection fee district, direct engineering department to prepare plans and specifications and advertise for construction bids, and that we declare intent to sell bonds to finance these improvements. Carried 6 votes affirmative.

Council Member Glassheim introduced the following resolution creating the assessment district, which was presented and read: Document No. 8721 - Resolution.

The city auditor presented and read the engineer's report on Trunk Sanitary Sewer Project No. 5774, District No, 438: Document No. 8722 - Report.

Council Member Glassheim introduced the following resolution to prepare plans and specifications for the trunk sanitary sewer: Document No. 8723 - Resolution.

It was moved by Council Member Glassheim and seconded by Council Member Kreun that this recommendation be approved and that the resolution creating the special assessment district, the engineer's report and the resolution to prepare plans and specifications for Project No. 5774, District No. 438, be accepted and adopted. Upon roll call the following voted "aye": Council Members Hamerlik, Glassheim, Christensen, Kerian, Kreun, Gershman - 6; voting "nay": none. President Gershman declared the motion carried and the report and resolutions adopted.

APPROVE EXCHANGE OF PROPERTY WITH GRAND
FORKS WATER RESOURCE DISTRICT FOR PROJECT
NO. 4704, PERMANENT FLOOD PROTECTION PROJECT

The staff report from the engineering department relating to exchange of property with Grand Forks Water Resource District for Project No. 4704, Permanent Flood Protection Project, with recommendations to: 1) adoption of a declaration that a portion of the property located in the N Half of Sections 2, 3, 4 and 5, T150N, R50W, purchased for construction of the flood protection project, as surplus property; and 2) adoption of resolution by city council waiving the requirements for advertising and public sale pursuant to Grand Forks City Code 2--0402(5)(D) and authorizing transfer of referenced property to Grand Forks Water Resource District in exchange for other adjacent property; and 3) approve land transfer agreement with Grand Forks Water Resource District contingent upon review of the city attorney.

It was moved by Council Member Glassheim and seconded by Council Member Kreun that this recommendation be approved. Upon roll call the following voted "aye": Council Members Hamerlik, Glassheim, Christensen, Kerian, Kreun, Gershman - 6; voting "nay": none. President Gershman declared the motion carried.

APPROVE NAMING OF GREENWAY NORTHEND BOAT
RAMP

The staff report from Mayor Brown relating to naming Greenway Northend Boat Ramp, "Whopper John" Little Landing, with recommendation for approval.

A letter from family members of John Little supporting naming the northend boat ramp after him was presented and read.

It was moved by Council Member Kerian and seconded by Council Member Kreun that this recommendation be approved. Carried 6 votes affirmative.

INTRODUCE ORDINANCE RELATING TO SEWER
CONNECTION OR SERVICE FEES FOR NEWLY
DEVELOPED PROPERTIES

The staff report from the city attorney relating to the matter of ordinance relating to sewer connection fees for newly development properties, with recommendation for introduction and approval of ordinance adopting Article 4 of Chapter XV of the Grand Forks City Code relating to sewer connection or service fees for newly developed properties.

It was moved by Council Member Glassheim and seconded by Council Member Kreun that this recommendation be approved. Carried 6 votes affirmative.

Council Member Kreun introduced an ordinance entitled "An ordinance adopting Article 4 of Chapter XV relating to sewer connection or service fees for newly developed properties", which was presented, read and passed on its first reading.

APPROVE REQUEST OF NEW SQUARE FOOTAGE
BUILDING COSTS FOR SINGLE-FAMILY, TOWNHOUSES
AND GARAGES TO DETERMINE BUILDING PERMIT FEES

The staff report from the building and zoning administrator relating to the request from Building Inspections Division for approval of a new square footage building costs for singe-family houses, townhouses and garages, with recommendation for approval of new square footage building costs, utilized to determine building permit costs Document No. 8724 - Resolution.

It was moved by Council Member Glassheim and seconded by Council Member Kreun that this recommendation be approved. Carried 6 votes affirmative.

APPROVE VEHICLE BID SPECIFICAITONS FOR POLICE
VEHICLES

The staff report from the police department relating to vehicle bid specifications, with recommendation for approval of bid specifications for a new bomb vehicle through the use of Weapons or Mass Destruction Funding.

It was moved by Council Member Glassheim and seconded by Council Member Kreun that this recommendation be approved. Carried 6 votes affirmative.

INTRODUCE ORDINANCE ENACTING ARTICLE 11 OF
CHAPTER 13 OF THE CITY CODE RELATING TO
SMOKING IN PUBLIC PLACES

The staff report from Council Member Kerian relating to smoke-free workplace ordinance, with recommendation for first reading and preliminary approval of the ordinance relating to smoking in public places.

Council Member Kerian stated that the council represents the residents of the city and that a vast majority of the city's residents have indicated that they don't want smoking in workplaces with the exception of bars, about 80% of the population doesn't smoke and we need to consider those people we're representing when we decide about a smoke-free workplace ordinance. The legislators passed their version of a state law regulating workplace smoking which compares favorably with the restrictions in the ordinance that is before us tonight and in a local ordinance can better respond to the local interests and smoke-free environment. While this council is working hard at being business friendly we also need to be worker and customer friendly; this ordinance is a compromise that protects more workers and more clearly sets expectations; and this body responded to the many citizens who expect a strong smoke-free workplace ordinance. Council Member Kerian introduced an ordinance entitled "An ordinance enacting Article 11 of Chapter 13 of the Grand Forks City Code relating to smoking in public places", the motion was seconded by Council Member Glassheim.

President Gershman stated that there are citizens who have asked to be heard relating to this item and the following individuals addressed the city council:

Mary Weaver, 509 Cherry Street, urged support of State ordinance.
Ron Gibbens, 3502 14th Avenue South, president of NDAD, that State law goes far enough, and requesting alcoholic beverage license to allow smoking.
Casey Noreen, 1008 University Avenue, Kelly's Bar, stay with State law.
Mike McMenamy, 1819 Cottonwood Street, McMenamy's Tavern, against smoking ban.
Dr. Robert Sticca, 5692 Cypress Point, supported ordinance on the floor.
Steven Jacobson, 810 3rd Avenue, Manvel, against smoking ban..

Council Member Christensen moved an amendment to the motion of Council Members Kerian and Glassheim, an ordinance that incorporates the State law with some changes per the ordinance Member Kreun seconded the motion.

Council Member Christensen stated that the State law was passed and adopted and goes into effect August 1, 2005 and has a very extensive set of definitions as to public places, places of employment and there are some exceptions. He stated that the public has not seen the ordinance he has prepared but that this is only the first reading if this passes, the problems he saw in the ordinance as prepared and presented several months ago is that there is not a clear definition of bar, restaurant, enclosed area, public place, and incorporated language to include pool halls, video arcades, health clubs, spas, limousines, elevators, restaurants and public rest rooms; and added that you cannot smoke within 5 ft. of the entrance or exit to a public place or place of employment, 25 ft. not reasonable. He stated that all this ordinance does at this point is that it exempts truck stops, it more clearly defines "bars" and it clearly establishes that there will be no smoking in restaurants in this community, whether or not they serve alcohol or not, there is no smoking, and hopes as they study this, that they will find that this should pass, that this is more than the state, not all the Coalition hoped, and we have to weigh everybody's opinion when we adopt the smoking ordinance.

Council Member Kerian asked Mr. Swanson who helped with the initial ordinance to talk about the "bar" definition and tell us how this would be interpreted and used in our community. Mr. Swanson stated the original draft focused on whether or not minors were allowed in the bar premises, that draft or definition was placed in there after a fair amount of research and he was asked to incorporate the state definition of a bar along with that, and he does not believe the State's definition of a bar is a very user/friendly definition of a bar, the definition in the ordinance that Mr. Christensen is proposing has some distinctions but is based initially on whether or not minors are allowed on the premises, and thinks that this definition but is a vast improvement over the State statute's definition, and when he says there are legislative decisions on the definition of a bar that has to do with hotel, motel and bowling centers and that seems to be the only difference.

Council Member Christensen stated what he had passed out is another thought that Mr. Swanson had after they had discussed the bar definition that is in this ordinance and asked Mr. Swanson if he could comment.

Mr. Swanson stated the separate page that simply has two definitions of bars, and he told Mr. Christensen he would give him two definitions to consider and actually gave him three, two on this page and a similar one included in the proposed or draft ordinance that he distributed to council. He stated he would be suggesting depending on what they decide to do with bars located in hotels, motels or bowling centers, if you follow the exemption that he his proposing or those bars, thinks the second definition or longer definition on the second page is best and that reads, "Bar means a retail alcoholic beverage establishment holding a Class 1 (which is general on and off sale liquor), a Class 5 (hotel/motel license) or Class 9 (bowling center) alcoholic beverage license as defined by Grand Forks City Code Section 21-0205 provided that a bar located within a hotel, motel or bowling center must be in a separately enclosed area and patrons entering, must be at least 21 years of age; and it goes on to provide that the term "bar" also includes a retail alcoholic beverage establishment holding a Class 3 (general wine and beer license) alcoholic beverage license as defined by Grand Forks City Code Section 21-0205 provided that patrons entering the establishment must be at least 21 years of age. He stated that what Mr. Christensen was referring to was the ambiguity as to, are person under the age of 21 allowed into a bar that is permitted to have smoking; under this definition the answer is unequivocal no, no one under the age of 21, whether employed or as a patron, can be in that bar.

Council Member Glassheim asked if they are proposing the second definition on the single sheet substitute for the stapled copy definition of a bar. Council Member Christensen stated he would, inasmuch as the ordinance they worked on and the person prepared it didn't have the time to include the language Mr. Swanson just mentioned and would amend that to include the words, "..and patrons entering must be at least 21 years of age." Mr. Swanson stated he wanted to clarify one statement, that when said employees and patrons, there is a minor exception you should be aware of that does come into play, that under certain circumstances an individual over the age of 18 but below the age of 21, can be employed to work in a bar and there are also certain circumstances where a musician or entertainer under the age of 21 can be allowed in a bar, those would still apply but are very narrow and are actually governed in our alcohol code and didn't want to misguide you in saying that no one but minor exception.

Council Member Kreun stated on the definition of bar and of restaurant, would that take away the ability of a restaurant to become technically a restaurant but legally a bar, and that they would only have patrons of 21 years of age or older. Mr. Swanson stated any establishment holding a Class 1 (General Liquor license) does not have the ability to permit under age 21 patrons. Council Member Kreun stated they would have to stay a restaurant in order to maintain the customer base of under 21 years of age; Mr. Swanson stated that was correct.

Council Member Hamerlik stated he didn't have an opportunity to find out what effect that paragraph has on current establishments, that at a hotel or motel are there some bars that don't have separate areas or not have to worry about that - thinks of one in the lobby and they would be excluded. Mr. Swanson stated the Class 5 licenses issued by the City to hotel and motels presently are issued to the Holiday Inn, the Hilton Garden Inn, the Ramada Inn, the bar in the Town House is actually a Class 1 license; the Holiday Inn has a separate facility, that the Hilton Garden Inn bar is part of their lobby restaurant which is not separate, and believes the Ramada Inn has bar service in their restaurant and also a separate facility and thinks Holiday Inn has bar service in their restaurant as well, and in those cases separate bar at the Holiday Inn and the separate bar at the Ramada would be allowed to have smoking under Mr. Christensen's draft provided that no one under the age of 21 is allowed in; the restaurants if they are providing alcoholic beverage services would have to be smoke free. The Hilton without structural modifications would have to be smoke free; the bar at the Town House, without structural modifications, would need to be smoke free.

Council Member Hamerlik stated under the original draft or State law, those three facilities would not have to be smoke free in the bar but would have to be smoke free in the restaurant. Mr. Swanson stated under Senate Bill 2300 a bar located within a hotel or bowling center or restaurant would have to be separately enclosed so his interpretation would be the same under Mr. Christensen's draft language as it is under State law as it relates to the 4 hotels discussed; no difference. He stated it is a change in the manner in which we arrived at the conclusion but the conclusions are the effect are the same.

Council Member Kerian stated many of them saw this proposed ordinance for the first time tonight and thinks it is important that people recognize the ways that for those who are speaking trying to protect as many people, obviously the bar definition as is in here would allow hotels, motels, bowling centers to have smoking facilities that are enclosed in them, some of the other changes, the 5 ft. makes sense, and her concern when that was raised was that it be far enough away so that someone doesn't stand in the doorway and smoke as people are trying to get in, but 5 ft. from the door makes sense; truck stops there are a lot of people who frequent those and there are people who are going to want to smoke around there, and for the employees who work there, that's a change from the proposed ordinance, and there are some ways in which people are going to be less protected by this and invite people to have a look at it.

Joe Meyers, 2005 Oakwood Avenue, stated he has been in health care for 30 years and have seen the effects of smoking and second-hand smoking, and is concerned that this process is going to go on and on; the council has before it an ordinance that was drafted a number of months ago and plenty of time to address the issues and understands there has to be some clarifications and definitions that could be worked out with the city attorney, but to change every time the council meets, have to address the issue and to take responsibility as leaders in this community and vote.

Council Member Glassheim stated an ordinance has been introduced, a substitute motion for a different ordinance, and hopes that tonight having to act on the substitute motion and hopes to propose some amendments to the substitute motion and see where we are and something will be adopted on first reading tonight, then published widely and the final vote will come in two weeks when there will be the potential for further amendments to whatever we come out of here tonight with; that he has been comparing Mr. Swanson's comparison of the City ordinance with the State law and to compare the substitute motion with that to find out if he agrees or disagrees with specific things and in order for someone to make motions to correct whatever has now been introduced, and asked Mr. Swanson if he could go through and point out any substantive differences between the Kerian legislation and the Christensen legislation.

Mr. Swanson stated he looked at the substituted ordinance this morning and can identify about a dozen substantive differences:
1) the Kerian ordinance regulates smoking in outdoor areas of the restaurants
the Christensen ordinance does not, that is deleted.
2) the Kerian ordinance would prohibit smoking in private residences when used for adult daycare, such as hospice or respice care, the Christensen ordinance does not, that is deleted.
3) the Kerian ordinance does not have an exception or exemption for truck stops, the Christensen ordinance has the same truck stop exemption as State law.

4) the Kerian ordinance regulates smoking within 25 ft of entrances, the Christensen ordinance modifies that to 5 feet.
5) the Kerian ordinance also regulates smoking within 25 ft. of windows, ventilation intake systems, etc.; the Christensen ordinance deletes any distances from that.
6) the Christensen ordinance adds the same State exemption for areas leased for private functions; the Kerian ordinance did not have that exemption.
7) the Kerian ordinance requires proprietors of places that were governed to be smoke-free under the ordinance to post signs; the Christensen ordinance deletes any requirement for posting of signs or notices.
8) the Kerian ordinance required the removal of ashtrays, lighters, match books, etc. in areas that were smoke-free; the Christensen ordinance deleted that.
9) the Kerian ordinance had no exemption for non-public areas in owner operated businesses; the Christen ordinance incorporates or adopts State law and provides an exemption for non-public areas for owner-operated businesses.
10) State law provides that possible exemption for bars and bowling centers, hotels and motels if in a separate location, the Christensen ordinance mirrors State law, the Kerian ordinance did not include that exemption.
11) the Kerian ordinance did not require proof of a willful violation for businesses; the Christensen ordinance imposes a higher level of proof of a willful violation for businesses violating any provisions of the smoke-free areas, identical to State law..
12) the proposed Kerian ordinance had a provision directing that the court provide liberate interpretation of the liberal construction clause, and that is removed in the Christensen ordinance. Mr. Swanson stated that perhaps doesn't matter a lot, there are rules of constitutional interpretation or stature and ordinance interpretation that a court will read a statute or ordinance drafted narrowly or broadly, the inclusion of a provision that asks the court to have a broad interpretation or liberal interpretation is seeking that the court extend every possible interpretation that is permissible to the provision of the ordinance; when it is silent the court has to use reasonable interpretation and we might be slicing hairs as to what is a reasonable and liberal interpretation, there is a difference but it may be a difference without significant distinction.

There are some differences in definitions, in the Christensen ordinance the definition of smoking is primarily based upon possession, the Kerian ordinance is slightly broader and includes both possession and inhaling/exhaling and the like, not sure how inhale or exhale without possessing it, different manner of drafting.

He stated there are some other definition changes that don't have a material or substantive effect, the analysis he gave council before of the Kerian ordinance and 2300 identified some modifications that needed to be brought in there; there is overall a difference in the style and structure of the Christensen ordinance and that it mirrors the format and style and drafting of the State statute, the Kerian ordinance is a different construction and his personal opinion is that he is not professionally impressed with the manner in which the State statute is drafted, that the Kerian ordinance perhaps reads better and is clearer, the Christensen ordinance follows State law both in structure and essentially most of the content although have identified some of the exceptions. Those are probably distinctions or differences that he sees between the two, many of his initial impressions and found that some of the items that were expressly stated in the Kerian ordinance actually now appear in the definitions of the Christensen ordinance; and when it comes down to it the primary differences that he has identified are all questions of legislative judgment that the council needs to make from a legal prospective, from an enforcement prospective or the event of any potential challenge, he is comfortable that either draft is appropriate and well founded in law that can withstand judicial scrutiny.
Council Member Glassheim stated the enforcement section is different in the Christensen and Kerian drafts. Mr. Swanson stated there is a difference in enforcement, the Kerian draft specifically authorizes various departments to undertake enforcement, the Christensen draft is silent, and his opinion that the silence does not prohibit those other departments from enforcing the provisions of the statute; if, however, the proposal were to exclusively authorize a given department for enforcement, that would be a different question, but where the draft is silent he believes the City would operate for the enforcement in the manner that the City chose most appropriate through whatever department(s). Enforcement would be treated in a fashion in which our building inspections department may run across other violations that it may in its course of business or the fire department, particularly the fire marshals, or health department in inspection of restaurants or public pools, etc. and it would be clearer to identify we want a broader enforcement that there was just no question of authority but in an ordinance that is silent as to the authority does not prohibit or tie our hands in any regard as to how we internally enforce it. In alls cases enforcement would be through Municipal Court. He stated that any department seeing an infraction, would handle that through the city prosecutor, a citation would be issued, not necessarily on the spot but upon appropriate execution of complaints, etc.

COUNCIL MEMBER BROOKS REPORTED PRESENT

Council Member Kerian stated the definition of bar in the ordinance in the packet was unclear with 21 and needed some references to class liquor licenses, Mr. Swanson stated he would not recommend passing the definition of bar that is in the draft in your packet, that was placed there at the request of a member of this body to incorporate State law and Hamerlik's question is what is the definition of incidental and he said id didn't matter because the threshold was whether you were 21 or not, and by having that State language in there it confuses the definition of a bar, and if you decide to address the exemptions proposed for motels, hotels and bowling centers, the ordinance Mr. Christensen has included is as well drafted as going to find, if not going to provide them with exemptions, then first paragraph on the separate handout is very similar to what he had initially suggested to you included in the draft that was done several months ago - and is not in an opinion that he would render an opinion as to which is better and that is a legislative judgment.

President Gershman stated they have a substitute ordinance that has been moved and seconded. Mr. Swanson stated procedurally the motion is handled as an amendment, substitute entirety one language for the other and treating that as an amendment, voting on that amendment. He stated what is on the floor for action is what was referred to as the Christensen ordinance.

Council Member Glassheim stated he would like to make some amendments to the ordinance, and would like to restore to the Christensen ordinance the prohibition of smoking in out-door areas of restaurants and moved the amendment. Mr. Swanson stated the definition uses the word enclosed, outdoor areas of a restaurant are available for smoking and rather than deleting you would add an amendment on the floor is adding a prohibition of smoking in outdoor sections of a restaurant. Council Member Kerian seconded the motion.

Council Member Kreun asked what is the definition of this outdoor area, have 5 ft. already, and if outdoor area is public area or private area and how define where it goes. Council Member Glassheim stated where food is served at a table. Mr. Swanson stated identifying as he understands the motion is to identify outdoor areas of a restaurant isn't difficult, that is a fairly common or typical inclusion in an ordinance or other statutes and doesn't see that as a particularly difficult issue to draft as to whether you want to do it or not. Council Member Christensen stated this ordinance was prepared and that Section 13-1101(D) says that any area designated as a non-smoking area by a business employer, manager, etc. in control of a public place or place of employment and seems by definition you give the owner of the establishment who is allowing smoking in front of his establishment to either designate that area as smoking or non-smoking, they would have the choice, everybody was concerned about the health issue for the employee and State addressed with enclosed areas and outside is outside and have an adequate ventilation system in light of the fact that have nature moving things around, and doesn't care that much or not but believes the issue is trying to be somewhat cognizant of the issues that Smoking Coalition group has put forth but yet trying to identity and give the business owner some degree of flexibility and how he/she wants to run his/her business; and could have a smoking or non-smoking area outside.

Council Member Hamerlik called for the question, seconded by Council Member Christensen, Carried 6 votes affirmative.

Upon vote on the amendment to add prohibiting of smoking in outdoor areas of restaurants, and upon roll call vote the following voted "aye": Council Members Glassheim, Gershman, Christensen, Kerian, Kreun - 5; voting "nay": Council Members Brooks, Hamerlik - 2. President Gershman declared the motion carried.

Council Member Glassheim moved that we amend the Christensen draft to add back in a prohibition of smoking in a hospice or respite care situation; Council Member Kerian seconded the motion.

Council Member Christensen called for the question, Council Member Brooks seconded the motion. Carried 7 votes affirmative. Upon vote on the amendment and upon voice vote, the motion was defeated, Council Member Glassheim voted for the amendment.

Council Member Glassheim moved an amendment to the ordinance to restore the requirements that proprietors post signs and remove ashtrays from tables; Council Member Kerian seconded the motion.

President Gershman stated that the removal of ashtrays at the entrances of establishments is ridiculous and that at his business when non-smoking because when people couldn't find an ashtray put it out in cardboard displays, and need to have those things available. Council Member Glassheim modified his motion only to signage; Council Member Kerian accepted the change in the motion.

Upon call for the question and upon voice vote, the motion carried 7 votes affirmative.

Council Member Glassheim stated he thought 25 ft. from entrances was too far and that 5 ft. too close, and would amend that to 10 feet. The motion died for lack of a second.

Council Member Kerian moved to remove 16 B, exclusion for truck stops. Council Member Glassheim seconded the motion.

Council Member Christensen called for the question, seconded by Council l Member Brooks. Carried 6 votes affirmative, Council Member Kerian voted against the motion.

Upon call for the question on the amendment and upon voice vote Council Member Glassheim and Kerian voted for the motion and Council Members Brooks, Hamerlik, Gershman, Christensen and Kreun voting against the motion. President Gershman stated the motion was defeated.

Council Member Kerian moved an amendment to the ordinance is to remove from the bar definition reference to allowing hotels, motels or bowling centers bars to have smoking; Council Member Glassheim seconded the amendment.

Council Member Kreun stated it is added in this ordinance that we have to close the windows and doors to those particular facilities and infiltration does occur and ventilation systems don't adequately take care of that but that this group tried to work with our friends across the river and concern with businesses and have a competitive issue and did make it more difficult for that infiltration to take place as best we could and still give the business owner the ability to work and sell the products that they have and go forward, but in realistic terms don't think we can do that and do best we can with what we have and if neighbors come to conclusion that have some type of smoking ban, could also bring that forward but until that happens have to have leeway with some of those businesses to give them the ability, and second hand smoke is an issue that we did not have choices and now with ban we have on restaurants, etc. have more choices and those are reasons for some of those exceptions.

President Gershman stated that consistency is that saying have to be 21 years old to go into a bar and that is definition of what a bar is, the hotel bars being Ramada Inn and Holiday Inn fall under that category as does the truck stops as they are enclosed and if not enclosed can't do it and Hilton Garden Inn which is not enclosed can't do it, and is consistent when thinking about the license and enclosed area and being 21.

Upon call for the amendment to remove from the bar definition the allowance for an enclosed bar in a hotel, motel or bowling center to have smoking, the following voted in favor of the motion: Council Members Kerian and Glassheim, and Council Members Brooks, Hamerlik, Gershman, Christensen and Kreun voting against the amendment. President Gershman declared the motion defeated.

Council Member Glassheim moved an amendment in the definition of bar that adds and patrons entering must be at least 21 years of age the end of the first sentence. Council Member Christensen seconded the amendment. Carried 7 votes affirmative.

Council Member Glassheim moved to add August 1, 2005 as the effective date of the ordinance; seconded by Council Member Christensen. Carried 7 votes affirmative.

Mr. Swanson stated the motion on the floor is the amendment to the original motion as subsequently amended, and if this passes, you would then vote upon the final preliminary approval of the ordinance with all amendments.

Upon call for the question on the Christensen ordinance with all amendments, the motion carried 6 votes affirmative, with Council Member Kerian voting against the motion.

Upon call for the question on the approval of the final preliminary ordinance with all amendments, the motion carried 7 votes affirmative.
Council Member Christensen introduced an ordinance entitled "An ordinance enacting Article 11 of Chapter 13 of the grand Forks City Code relating to smoking in public places", which was presented, read and passed on first reading.

Final reading of the ordinance will take place in 2 weeks, on June 20, 2005.

APPROVE BILL LISTING AND ESTIMATE SUMMARY

Vendor Payment Listing No. 05-11, dated June 3, 2005, and totaling $1,486,633.94, and Estimate Summary totaling $934,878.33, were presented and read.

It was moved by Council Member Brooks and seconded by Council Member Hamerlik that these bills and estimates be approved and that the city auditor be authorized to issue warrants in payment of the same. Upon roll call the following voted "aye": Council Members Brooks, Hamerlik, Glassheim, Christensen, Kerian, Kreun, Gershman - 7; voting "nay": none. President Gershman declared the motion carried and the bills and estimates ordered paid.

APPROVE MINUTES MAY 16, 2005

Typewritten copies of the minutes of the city council meeting held on Monday, May 16, 2005 were presented and read. It was moved by Council Member Christensen and seconded by Council Member Brooks that the minutes be approved as read. Carried 7 votes affirmative.

MAYOR AND COUNCIL COMMENTS

1) Council Member Christensen stated that several weeks ago the council passed a resolution authorizing staff to construct some sidewalks in the city and allocated $200,000 and may have inadvertently authorized the creation and installation of sidewalks in areas that already been zoned or platted for a 5 ft. width sidewalk rather than what is contemplated for a bikepath and asked that engineering staff look at that a bikepath.

2) Council Member Kerian stated in the minutes of the police department that Sgt. Pohlman's and Sgt. Schroeder's sons are home on leave for two weeks from Iraq and expressed appreciation to them and their families and wish them well and Godspeed in going back.

3) Council Member Kreun stated to all our military people a big thank you to them.

ADJOURN

It was moved by Council Member Christensen and seconded by Council Member Brooks that we adjourn. Carried 7 votes affirmative.

Respectfully submitted,



John M. Schmisek
City Auditor

Approved:
______________________________________
Harold A. Gershman, President of City Council