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2013/10/08ANAHEIM CITY COUNCIL REGULAR MEETING OF OCTOBER 8, 2013 The regular meeting of October 8, 2013 was called to order at 3:07 P.M. in the chambers of Anaheim City Hall. The meeting notice, agenda and related materials were duly posted on October 4, 2013. PRESENT Mayor Tom Tait and Council Members: Jordan Brandman, Gail Eastman, Lucille Kring and Kris Murray. STAFF PRESENT City Manager Marcie Edwards, City Attorney Michael Houston and City Clerk Linda Andal. ADDITIONS /DELETIONS TO CLOSED SESSION Council Member Murray requested Council Members be given the opportunity to provide council comments at the conclusion of Public Comments for an opportunity to address items brought forward at the podium by the public and again at the end of the meeting. PUBLIC COMMENTS ON CLOSED SESSION ITEMS None At 3:08 P.M., City Council recessed to closed session for consideration of the following items: CLOSED SESSION: CONFERENCE WITH LEGAL COUNSEL EXISTING LITIGATION (Subdivision (d)(1) of Section 54956.9 of the California Government Code) Name of Case: Moreno et al. v. City of Anaheim, Orange County Superior Court Case No. 2012- 00579998 2. CONFERENCE WITH LEGAL COUNSEL EXISTING LITIGATION (Subdivision (d)(1) of Section 54956.9 of the California Government Code) Name of Case: Estate of Manuel Diaz et al. v. City of Anaheim, United States District Court, Court Case No. SACV 12 -01897 JVS (RNBx) 3. CONFERENCE WITH LABOR NEGOTIATORS (Subdivision (a) of Section 54957.6 of the Government Code) Agency Designated Representative: Kristine Ridge, Jason Motsick Name of Employee Organizations: Anaheim Municipal Employees Association - General Employees; Anaheim Municipal Employees Association - Clerical Employees; Anaheim Municipal Employees Association - Part-Time Unit; International Brotherhood of Electrical Workers Local #47 - Full and Part-Time; Teamsters Local #952 At 5:06 P.M., City Council returned from closed session and the council meeting was reconvened. Invocation: Reverend Josephine Liavaa, Anaheim Tongan Fellowship United Methodist Church Flag Salute: Council Member Kris Murray City Council Minutes of October 8, 2013 Page 2 of 22 Presentations: Recognizing long service City of Anaheim employees with 25, 30, 35 and 40 years of service Walt Jerz, Human Resources, recognized and introduced 70 employees that had reached 25, 30, 35 and in one case, 40 years of service to the City. Presentation on the Partnership for 21st Century Skills Dr. Elizabeth Novack, Anaheim Union High School Superintendent, presented the P21 Initiative which was launched in February 2011 by the school district and the board of trustees, led by Jordan Brandman who was president of the board at that time. She explained this initiative centered on skills that would provide students with an opportunity to be college and career ready by focusing on communication, creativity, critical thinking and collaboration. Three students from Anaheim schools, Blaine Edwards, Fabian Nunez, and Abel Diaz each spoke to the importance of the P21 Initiative and urged the city to become a partner as the first city in the nation to join the program and change the way students applied their knowledge in the real world. Mayor Tait reported the students were out in force to support this item and that there were about 100 students in the lobby that didn't make it into the chambers. He thanked everyone for their passion and commitment to education and was especially appreciative to see the petitions submitted on behalf of this program included character, honor, and integrity as important components. Mayor Tait requested staff prepare a report to officially support P21 and also indicated he would be putting together a task force to develop a partnership between the business community, the school districts, students and the city to develop ideas to champion P21, asking Council Member Brandman to join him in formulating that effort. Acceptance of Other Recognitions (To be presented at a later date): Proclaiming Red Shirt Friday in the City of Anaheim Proclaiming October 7 -11, 2013, as Public Power Week Proclaiming October 6 - 12, 2013, as Fire Prevention Week Recognizing Dr. Hataya on his 90th birthday Proclaiming October 2013, as Arts and Humanities Month Recognizing Joe Spencer on being honored at the Loara High School Class of 1988 25 Anniversary Celebration Wylie Aitkin remarked the California Arts Council was committed to putting arts back in the schools so students could have the same opportunities that many others had and thanked council for recognizing Arts and Humanities month. Greg Gillaspy, Local Chapter 1024, Vietnam Veterans of America, remarked Red Shirt Friday was meant to honor those people who were currently serving and protecting America right now and the wearing of a red shirt on Friday was to let them know their efforts were noticed and the nation was grateful. He thanked Anaheim for stepping forward and becoming a Red Shirt city. Dukku Lee, Public Utilities Department, remarked that over 2000 communities in the nation were celebrating Public Power Week and Anaheim would be hosting a series of informational City Council Minutes of October 8, 2013 Page 3 of 22 booths at the Downtown Farmer's Market this week to offer information on energy efficiency, ways to reduce electric bills as well as information about electric vehicles. Jeff Lutz, Fire Marshall, reported this year's campaign would focus on wildland fire protection and the Ready, Set, Go program. He informed the community about the block party scheduled for this Saturday, indicating 15,000 flyers had been distributed and any interested persons could visit the Department's website to learn more about the block party as well as critical information on protecting homes from fires. At &05 P.M., the Anaheim Housing Authority was called to order (for a joint public comment session with the Anaheim City Council ). ADDITIONS /DELETIONS TO THE AGENDA: The City Clerk announced that council communications would be bifurcated, occurring once after public comments and again at the end of the agenda, at the request of Council Member Murray and with the concurrence of Council. Mayor Tait provided a brief statement addressing certain comments made during a previous council meeting by William Fitzgerald and further requested the City Attorney look into what Council's options were to address offensive and inappropriate public comments. Mr. Houston responded with the following: statements made at the Monday meeting had no place in respectful discourse, however, those comments were protected by the First Amendment and did not violate the city's existing decorum policy since an actual disruption did not occur. He stated it was hoped that by allowing such speech as offensive as it might be, listeners could judge for themselves the credibility and quality of a speaker's ideas and judgment. Specifically, he noted, the Brown Act allowed the public to comment on any matters within the city's jurisdiction and persons who used this right without causing an actual disturbance of a public meeting received protection by the first amendment even when speech was profane, anti - Semitic, racist or otherwise. One exception to this protection, he remarked, involved words that inflicted injury or incited fighting. He pointed out staff, elected officers and citizens had the same first amendment rights and could refute, condemn or criticize such offensive statements and the courts provided a clear remedy to such speech, called "counterbalancing speech "; that is, more speech, not enforced silence or eviction. Again, he remarked, Mayor or Council were limited in how to deal with speakers using such language unless the speaker or his /her speech actually disrupted a public meeting. Based on this standard, he added, it was not appropriate for the presiding officer or council as a body to take action to terminate a speaker's right or eject a speaker unless actual disruption was occurring. He further pointed out speech could be lawfully curtailed if it was irrelevant or unrelated to city business, however, determining what fit within those parameters could be difficult and could place the Mayor and legal counsel in the position of trying to guess a speaker's language and intent and in most cases, it was the wiser course to allow speech to continue. Mayor Tait remarked at the last council meeting a member of the public intentionally used a form of speech carried out with hate and disrespect with the goal to personally harm a council member by making malicious, homophobic and anti - Semitic comments. He wanted everyone to know that council did not condone such behavior and although it might be legal, it was spiteful and immoral. He asked the City Council join him in looking into what this Council could do or adopt as a body to condemn these types of comments and requested the City Clerk draft language that could be announced prior to the start of public comments at each meeting to remind speakers of the city's decorum policy. City Council Minutes of October 8, 2013 Page 4 of 22 Council Member Brandman added that last Monday a resident expressed his feelings in public discourse using hateful and inflammatory rhetoric intended to "incite irrational vitriol ". He emphasized such expressions of hate against any race, ethnicity, religion or sexual orientation had no place in council chambers and asked that the community join together in support of mutual respect for all and to condemn those whose comments threatened a person's ability to feel safe in the community. Council Member Murray and Council Member Kring expressed their support of the Mayor's recommendation and looked forward to working with him to address those issues. Mayor Pro Tern Eastman expressed her support as well in crafting a statement of decorum that would remind speakers this was a place of business and even though disagreements on policy issues occurred, this City Council continued to work together for the betterment of Anaheim. PUBLIC COMMENTS (all agenda items except public hearings): Cecil Jordan Corcoran, Outreach Homeless Ministries, discussed his bible review and the need to understand the scriptures and to rebuild and support churches across America. Rabbi Joe Berman remarked the discussion and comments surrounding William Fitzgerald's oral comments on September 30 were designed to distract the community from paying attention to the business at hand. He thanked City Attorney Michael Houston for his explanation on the First Amendment rights, thanked Mayor Tait for his action to stop this type of discourse in the future and thanked the City Council in their concurrence. He ended his comments by encouraging everyone to make the choice to be principled, even when others did not. Connor Traut spoke to the issue of hate speech, remarking he attended the special meeting when those comments were made. He informed all that Mr. Fitzgerald had litigated against Orange County when they pushed back at him for calling South Vietnamese cowards, adding Mr. Fitzgerald had lost that suit. Mr. Traut pointed out that according to council's rule on decorum any person who addressed the council with threatening, abusive, slanderous or profane remarks, could be stopped by the presiding officer and demanded the Mayor do so in the future. He further requested that the Mayor place Rule 101 on the agenda for a discussion at the next meeting to address this issue of social justice in keeping with the Mayor's philosophy of promoting "kindness" throughout the city. Mark Daniels, resident, applauded council's decision to stand up and address this issue and to push ahead for the betterment of this city regardless of philosophical differences. James Robert Reade, voicing his opinion, identified certain gang members and their actions, and objections to community activists who mislead the public. Jasmine West, resident, spoke of a male stalker who posted a website directing dangerous people to her home and the family's request for assistance by the police department. Mayor Tait remarked he took Ms. West's statements seriously and requested police staff investigate the complaint. John Dunton informed there was an appellate case in which a council member felt threatened and filed a restraining order which was appealed but not overturned, an option available to Council Member Brandman, if he wished. He discussed the success of the cleanup on Anna Drive, the need to help the homeless in La Palma Park, and his willingness to get other businesses involved and engaged in helping the communities. City Council Minutes of October 8, 2013 Page 5 of 22 Dr. Kevin O'Grady, Orange County Gay and Lesbian Center, remarked the offensive statements made during the September 30 council meeting revealed the true nature of the member of the public who made those statements, adding that it ran so counter to the standards of decency that it deserved no further attention. Dr. O'Grady remarked this person should have been ruled out of order and required a stronger response from the Mayor. Gary Wimberly provided invitations announcing the Colony Classic Car show this Saturday from 10:00 AM to 2:00 PM at Anaheim High School with the goal of raising funds for scholarships. So far, he added, $60,000 had been awarded for scholarships and invited the community to attend and enjoy the event. Jesse Rowan spoke against capitalism and imperialism running rampant in the United States, warning that a peaceful revolution was coming. Tad Garebedian addressed Item No. 6, regarding contract security services for the city. He believed this low bid process did not allow for criteria such as addressing wage rates and the depth of training that should be provided to security officers, asking that the matter be continued and that the process use a request for proposal rather than low bid. Melissa Carr, Anti - Defamation League of Orange County (ADL), thanked council for their quick action regarding hate - filled comments made at a previous meeting, adding that the ADL stood by the First Amendment and efforts to make the chambers more civil. She offered any resources that might assist council, stating the ADL would be happy to be a partner in that effort. She added the anecdote crafted to address this situation was one that could be carried out to the community to address bullying in the schools and workplace. Zia, speaking to the homeless issue in Anaheim, looked to council as leaders to fight for those who were vulnerable in society. Addressing Item No. 22, she stated the ordinance as drafted, would arrest homeless who were cited because they had neither identification nor residence; she felt the city could do better than this. Dan Arbgast, resident, addressed his comments to Item No. 6 stating he had been a security provider for the city for five years and after reviewing the new contract proposal, he objected to the reduction in security hours when, in his opinion, additional hours were needed. Instead, he remarked, a sophisticated tracking guard system was added when the system in place that was paid for had never failed, the proposal also requested a vehicle would not be driven more than 10 -15 miles per week, ail of which elevated the rate to provide for this option. He remarked the current bid (which expired October 30 and had a 30 day extension) could not exceed $505,000, while the new contract was not to exceed $489,000 with all of the parking structures removed from the agreement. He added those parking structures were now included in a different contract and in his opinion, it would cost the general fund an additional $247,000 as a result of these changes and urged council to reconsider the bid proposal. William Grisolia expressed his opposition to any discussion of stadium property giveaway during baseball negotiations, land that was ten times the value of the recent $158 million tax incentive for the Platinum Triangle and the people's asset for generating profit in the future. Carol Latham, Anaheim Fall Festival, reminded the community of October 26 a day of coming together and celebrating harvest time and the 90 year of the Halloween Festival and parade. She invited the community to attend and support this effort at the Center Street Promenade City Council Minutes of October 8, 2013 Page 6 of 22 Koussan Joshua Collins, street ministry, encouraged the city to create safe zones for the homeless to sleep and that the request be agendized. Joanne Sosa remarked her organization would not have their attention be diverted from the real issues, specifically, the stadium and baseball negotiations. David Robert Haywood urged the Mayor and Council colleagues to stop the escalation of rudeness, threats, disrespect and offensive remarks that had been occurring in the council chambers. Henry Vandermeier, Chairman of Orange County Democratic Party, referring to offensive public comments, stated the presiding officer's position had the responsibility to act quickly when incidents happened and to find some legal way to not allow such hate speech to continue in the chamber without consequences. David Patterson opposed Item No. 22, remarking that imposing a fine for those sleeping in parks and other public places reflected a lack of human decency and urged council to put this ordinance on hold and come up with a more humane solution. An unidentified individual stated she regularly fed the homeless, asking the city to find some property that could accommodate an encampment and stop adding to their problems. Jose Moreno was appreciative of Mayor Tait's support with the P21 program, adding that he was the first mayor in years to reach out to schools asking how the city could help. He encouraged council to support the leadership of the mayor and partner with schools to make a real investment in Anaheim's youth. A west Anaheim resident expressed shock at the numbers of homeless in his area, and detailed how he and his family took steps to provide assistance. He asked council to find solutions for this significant issue and to challenge others to do the same. Ricardo, resident, condemned the remarks made by a member of the public at a previous council meeting and expressed distress at the offensive language used by public speakers in general, explaining how such comments had personally affected him. Greg Diamond, Orange County Democratic Party, pointed out that the baseball negotiation guidelines were instructions given to the city's negotiators and could not be denied by members of the city council. Brian Chuchua remarked that Mr. Fitzgerald's comments made during a previous council meeting were wrong and he was further embarrassed at certain comments made to Mayor Tait as the presiding officer of that meeting. An unidentified speaker remarked that public discourse from James Robert Reade who belittled and degraded certain Anaheim mothers had never been condemned and she took exception that the only time council took action was when it was a personal attack on them. With no further public comments offered, at 7:29 P.M., Council session was briefly recessed to address the Housing Authority agenda and reconvened at 7:30 P.M. City Council Minutes of October 8, 2013 Page 7 of 22 CONSENT CALENDAR: Mayor Pro Tern Eastman removed Item No. 6 from the consent calendar for further discussion. Mayor Tait remarked he would abstain on Item No's. 17 and 18 due to a potential conflict of interest as his firm had worked with OCTA and Orange County Water District. Council Member Kring then moved to waive reading in full of all ordinances and resolutions and to adopt the balance of the consent calendar as presented, in accordance with reports, certifications and recommendations furnished each city council member and as listed on the consent calendar, seconded by Mayor Pro Tem Eastman. Roll Call Vote: Ayes — 5: (Chairman Tait and Council Members: Brandman, Eastman, Kring and Murray.) Noes — 0. Motion Carried. D116 3. Receive and file the report on the Council District Mapping Community Input project. B105 4. Appoint Dean Mancina to the Anaheim Workforce Investment Board representing the public sector, to a four -year term ending October 7, 2017. D150 5. Amend the Mills Act Program guidelines to authorize the City Manager, or designee, to prepare and execute Historical Property Preservation agreements. 7. Award the contract to the lowest responsible bidder, Okeyness Construction, Inc., in the AGR -7840 amount of $168,750, for the Woelke - Stoffel House Roofing and Balcony project and authorize the Finance Director to execute the Escrow Agreement pertaining to contract retentions. 8. Waive the competitive bid process and authorize a purchase from Pierce Manufacturing, Inc., in the amount of $564,316 (including sales tax), for one fire engine for the Fire D180 Department and authorize the Purchasing Agent to execute all documents required for the purchase. 9. Approve speed bumps on Wilken Way between Haster Street and Mountain View D175 Avenue as a traffic calming measure. 10. Approve a Second Amended and Restated License and Facilities Use Agreement with AGR - 5405.2 the Anaheim Senior Citizens Club, Inc., to utilize the Downtown Anaheim Community Center, Brookhurst Community Center and East Anaheim Community Center on a shared basis to provide social and recreational activities to senior citizens. 11. Approve the First Amendment to Agreement with Audio Visual Services Group, Inc., dba AGR- 5404.1 PSAV Presentation Services authorizing the Convention Center Executive Director, or his designee, to extend the current agreement, under the existing terms, on a month -to- month basis for up to six months. 12. Approve and authorize the Public Utilities General Manager to execute and take the necessary actions to implement and administer the Master Inter - Utility Agreement, and any related documents, with Southern California Gas Company, in an amount not to AGR 7841 exceed $200,000 per year, to jointly conduct electricity, water, and natural gas conservation programs for mutual customers. 13. Approve and authorize the Public Utilities General Manager, or designee, to execute and take the necessary actions to implement and administer the First Amendment to the AGR - 7164.1 Information System Agreement with Systems & Software, Inc., and any related City Council Minutes of October 8, 2013 Page 8 of 22 documents, to provide an alternate mobile work management software solution at no additional cost. 14. RESOLUTION NO. 2013 -152 A RESOLUTION OF THE CITY COUNCIL OF R100 THE CITY OF ANAHEIM authorizing the destruction of certain City records more than two years old (Finance Department). 15. RESOLUTION NO. 2013 -153 A RESOLUTION OF THE CITY COUNCIL OF D175 THE CITY OF ANAHEIM designating Cottonwood Circle from Citron Street to Vermont Avenue as "Permit Parking Only" street within Permit - Eligible Parking District No. 19. 16. RESOLUTION NO. 2013 -154 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM authorizing the Human Resources Director to enter into R100 settlement agreements where the compensation exchanged is less than ten thousand dollars. 17. RESOLUTION NO. 2013 -155 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM ratifying and approving the action of the Director of Community R100 Services, or his designee, in submitting a grant application on behalf of the City of Anaheim, for the Bicycle Corridor Improvement Program funded with Congestion Mitigation and Air Quality Program funding under the Moving Ahead for Progress in the 21 st Century Federal Transportation Act for Anaheim Coves northern extension project, and in accepting such grant funds on behalf of the city and approving inclusion of such funds in the respective budgets for fiscal year 2013 -14. RESOLUTION NO. 2013 -156 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM ratifying and approving the action of the Director of Community Services, or his designee, in submitting a grant application on behalf of the City of Anaheim, with the Strategic Growth Council of the State of California under The Urban Greening Grant Program under the Safe Drinking Water, Water Quality and Supply, Flood Control, River and Coastal Protection Bond Act of 2006 (Proposition 84), and in accepting such grant funds on behalf of the city and approving inclusion of such funds in the respective budgets for fiscal year 2013 -14. Mayor Tait abstained on this item. Council Member Kring moved to approved, seconded by Mayor Pro Tem Eastman. Roll Call Vote: Ayes — 4: (Mayor Pro Tem Eastman and Council Members: Brandman, Kring and Murray. Noes — 0. Abstention — 1: Mayor Tait. Motion to Approve Carried. 18. RESOLUTION NO. 2013 -157 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM acting as responsible agency to make and adopt findings for AGR -7842 purposes of and pursuant to the provisions of the California Environmental Quality Act of 1970 in connection with Program /Project Environmental Impact Report Orange County Water District annexation request by the City of Anaheim, Irvine Ranch Water District and Yorba Linda Water District (State Clearing House No. 2011071095) relating to the annexation of 2,355 acres of land in the eastern portion of the City of Anaheim into the Orange County Water District and approving an agreement for annexation to Orange County Water District. Mayor Tait abstained on this item. Council Member Kring moved to approved, seconded by Mayor Pro Tem Eastman. Roll Call Vote: Ayes — 4: (Mayor Pro Tem Eastman and Council City Council Minutes of October 8, 2013 Page 9 of 22 Members: Brandman, Kring and Murray. Noes — 0. Abstention — I. Mayor Tait. Motion to Approve Carried. 19. RESOLUTION NO. 2013 -158 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM consenting to the inclusion of all properties within the City's AGR 7843 jurisdiction in the California HERO Program to finance distributed generation renewable energy sources, energy and water efficiency improvements and electric vehicle charging infrastructure and approving an amendment to a certain Joint Powers Agreement related thereto to permit HERO Program services within the City of Anaheim. RESOLUTION NO. 2013 -159 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM authorizing the City of Anaheim to join the FIGTREE PACE Program; authorizing the California Enterprise Development Authority to conduct contractual assessment proceedings and levy contractual assessments within the territory of the City of Anaheim; authorizing related actions; and approving a participation agreement with the California Enterprise Development Authority and FIGTREE energy financing in furtherance of the FIGTREE PACE program. Authorize the City Manager to execute and take the necessary actions to implement and administer the Western Riverside Council of Governments ( WRCOG) JPA Amendment and the Participation Agreement, and any related documents, with any de minimis changes that do not substantially change the terms and conditions of the WRCOG JPA Amendment and the Participation Agreement, so long as such changes are determined to be de minimis by the City Attorney. 20. ORDINANCE NO. 6287 (ADOPTION) AN ORDINANCE OF THE CITY OF ANAHEIM amending Chapter 18.32 of Title 18 of the Anaheim Municipal Code (Mixed Use Overlay Zone) (Zoning Code Amendment No. 2013 - 00110) (DEV2012- 00118) c2go (Introduced at Council Meeting of September 24. 2013, Item No. 28). ORDINANCE NO. 6288 (ADOPTION) AN ORDINANCE OF THE CITY OF ANAHEIM amending the zoning map referred to in Title 18 of the Anaheim Municipal Code relating to zoning (Reclassification No. 2013 - 00255) (DEV2012- 00118) (Introduced at Council Meeting of September 24. 2013, Item No. 28). 21. ORDINANCE NO. 6289 (ADOPTION) AN ORDINANCE OF THE CITY OF ANAHEIM amending various chapters of Title 18 of the Anaheim Municipal Code relating C280 to the inclusion of supportive and transitional housing within certain residential use classes (Zoning Code Amendment No. 2013- 00111) (DEV2012- 00063) (Introduced at Council Meeting of September 24. 2013, Item No. 30). 22. Continue the introduction of an ordinance to the Council meeting of October 22, 2013, relating to camping and storage of personal property in public areas (Ordinance Title: M142 An Ordinance of the City of Anaheim adding Chapter 11.10 to Title 11 of the Anaheim Municipal Code relating to camping and storage of personal property in public areas) (Continued from Council meeting of September 24, 2013, Item No. 29). COUNCIL COMMENTS Council Member Murray responded to comments related to Item No. 22 and advised that Anaheim was working with the county and surrounding cities to try to locate a facility that could City Council Minutes of October 8, 2013 Page 10 of 22 be renovated to provide full care services for homeless families and individuals with Supervisor Nelson working closely with Anaheim on that effort. She emphasized the ordinance on this agenda was to insure the parks remained safe for children and families who lived near them and the city planned to be as sensitive as possible with the homeless population. Mayor Pro Tern Eastman added that along with providing a storage place for homeless belongings, services would also be offered to guide them out of homelessness and restroom facilities to be open 24/7. She indicated this was a trial project to try to address the bigger picture and there was no intent to raise any kind of funds through fines City Manager Marcie Edwards stated Item No. 22 was a continuance of a previous item with respect to the homeless ordinances and it was only on the agenda this evening to get authorization to move it to the October 22 meeting as staff continued to meet with a variety of interested parties in an effort to find a reasonable path forward. Council Member Kring further added the city, along with Fullerton, was looking at opening the Fullerton Armory year -round and at this point it was a funding matter with Anaheim willing to contribute and would offer people a place to sleep year around. The storage facility was simply a place for people to safely store their effects. Mayor Tait remarked council had listened and understood the speakers' viewpoints on this issue and emphasized the city was focused on finding a solution. END OF CONSENT CALENDAR 6. Accept the lowest responsive bid and execute an agreement with Cypress Security, LLC, in an amount not to exceed $489,928, for security guard services for a period of AGR -7864 one year, with four one -year optional renewals and authorize the Purchasing Agent to exercise the renewal options, in accordance with Bid # 7992. Natalie Meeks, Public Works Department, reported at the end of September, the city's security guard services were scheduled to expire and the department worked with the Purchasing Division to advertise a proposal to receive new bids on a security contract. She noted this was done through a low bid contract with very specific criteria and qualifications for the services being sought; i.e., minimum standards, minimum training requirements, and minimum experience, with each of the proposals equally weighed, a normal procedure with this type of proposal. She added it was not a security assessment, nor was it weighing different levels of services against one another. She reported the low bid recommended to award was from Cypress Security, a new firm to the city. She added that some of the levels of security did change in the proposal because the Downtown Community Association was taking over the security for the parking structures that did not belong to the city, so there were different hours in this contract versus the old one; however, she pointed out, City facilities would still have the same level of services. Ms. Meeks informed council she was also proposing a security assessment of city hall and Anaheim West Tower and the surrounding city property be conducted to ensure the right level of service was being provided and upon completion of that assessment, proposals for any changes would be brought back to council. At this point in time, however, staff was requesting to continue the level of service at city hall and the west tower and award the bid. Mayor Pro Tern Eastman disclosed she had met with at least one of the applicants as well as with Natalie Meeks and her staff for discussion purposes. She had also discussed with past and present city managers and the police chief her concern over the level of security in some City Council Minutes of October 8, 2013 Page 11 of 22 parts of city hall, including council chambers. Part of that concern, she remarked, was from citizens who expressed concern for their safety and the safety of their vehicles. Mayor Tait remarked he had also met with Ms. Meeks and staff but not with the various applicants. He suggested tabling the item and possibly going with the existing firm on a month -to -month basis, and allowing time for the assessment to be conducted rather than awarding an agreement which had the possibility of being amended with a different level of service in the near future; Mayor Pro Tern Eastman concurred. Council Member Kring remarked she had also met with staff and with some of the applicants, suggesting that providing a security assessment be part of the proposal. Discussion continued with the city manager stating staff needed an opportunity to see what the implications were in the current contract and whether it could or could not be extended and if this item could be continued to November 22 meeting, those questions would be answered. Mayor Pro Tern Eastman moved to continue this item to November 22, 2013 understanding council's comments and concerned would be considered, seconded by Council Member Kring. Roll Call Vote: Ayes — 5: (Mayor Tait and Council Members: Brandman, Eastman, Kring and Murray.) Noes — 0. Motion Carried. 23. Appoint a representative to the Housing and Community Development Commission, B105 West Council District, to complete an unexpired term ending June 30, 2015. Housing and Community Development Commission (West Council District) Appointment: (June 30, 2015) (unscheduled vacancy of Liz Gavarini) Council Member Brandman moved to continue this item to October 22, 2013, seconded by Council Member Kring. The vote was unanimous and the item was continued to the next scheduled council meeting on October 22, 2013. 24. Accept and adopt the recommendation of the hearing officer not to terminate A Taxi F130.2 Cab's Taxi Franchise (adopting the recommendation shall conclude the administrative process). Mr. Houston remarked that this was not a public hearing; however, the city council could allow the party involved to speak for a limited period of time as well as any other taxi operators. He added, it was also appropriate and advisable that each member of the council who had ex parte communications with any party to identify the communications, their source as well as a brief summary of substance. Sheri Vander Dussen, Planning Director, reported the city granted franchises to three companies in August of 2012 to provide taxi service in Anaheim and the following month council requested an investigation into allegations regarding financial statements submitted by A- Taxicab, one of the franchisees. At that time, staff requested A -Taxi submit specific audited financial statements by December 2012 and A -Taxi requested and received an extension to January 2013 and submitted their audits at that time. The city's internal audit staff still deemed the information inconclusive and believed A -Taxi was either unable or unwilling to comply with the terms and conditions of its franchise and subsequently requested a hearing to consider revocation of A- Taxi's franchise. Pursuant to the Anaheim Municipal Code, she reported, council elected to refer the matter to a hearing officer agreed upon by both the city and A -Taxi and that hearing covered three full days in July and August of this year. She stated the hearing officer's recommendation was not to City Council Minutes of October 8, 2013 Page 12 of 22 terminate A- Taxi's franchise, a decision based mainly on the finding that the city's requirement regarding financial statements was not clear. She explained the franchise had already been awarded to A -Taxi based on a finding of inconclusive financial statements and through the revocation process, A -Taxi did comply with the city's request to submit audited financial statements from a certified public accountant (CPA). She added the city auditor had since given A- Taxi's financial statements a passing grade and they were no longer considered inconclusive. She further explained, since those financial concerns had been addressed through the submittal of the required information, the hearing officer concluded there was not sufficient basis to revoke the franchise. She added this hearing was also attended by representatives from other taxi companies with none of them offering public comments; each, she emphasized, had an opportunity to participate in the hearing and present evidence but declined to do so and the hearing officer's decision was based on information presented by the city and A -Taxi. Ms. Vander Dussen remarked council had the following options before them; to adopt, reject or modify the findings of the hearing officer although it was staff's recommendation to accept and adopt the hearing officer's recommendation to not terminate A- Taxi's franchise. Should Council desire another outcome, she indicated the City Attorney could be instructed to prepare a written decision incorporating the conclusions of the City Council. Council would then need to adopt or modify such decision by motion at the next meeting on October 22 and in addition, would need to direct staff to initiate a new request for proposal process to fill the remaining franchise for 50 cabs. Council Member Murray asked to hear from the City Attorney about the legal aspects of the hearing and why the ruling came to that decision. Mr. Houston responded the hearing decision consisted of a 15 page decision by the hearing officer who ruled on a couple of issues based on facts in the record that were provided to the hearing officer as well as briefs that were provided by the city and the responding taxi company. There were three main points considered 1) The hearing officer concluded A -Taxi had a vested right to the permit thus invoking certain procedural and due process rights; 2) The city had the burden of proof to take those rights away by a majority of evidence presented, meaning that in order to revoke the permit, the city had to prove that more likely than not there were facts that would allow the permit to be revoked; 3) The hearing officer concluded that the ordinance and the RFP that were issued did not require three years of separate financial statements audited by an independent CPA and the hearing officer specifically found that there was no requirement in the RFP itself for a CPA opinion letter or audits for other than three separate years. The hearing officer also specifically concluded that based on the evidence, there was no indication of fraud, and the city had awarded the franchise based on an inconclusive response and there was no requirement for three separate years of financial statements. He noted there had been testimony presented which the hearing officer found persuasive that it was not improper to combine a number of years into one financial statement and that if the city had wanted that in the RFP, they should have clearly and expressly stated that. Additionally, Mr. Houston remarked, the hearing officer concluded based on testimony and evidence presented that when the taxi company was later asked to provide separate years, while there was a delay in provision of those, the delay was not necessarily unreasonable and did not amount to some sort or fraud or misrepresentation. Mayor Tait invited A -Taxi to comment City Council Minutes of October 8, 2013 Page 13 of 22 Mary Ann Cazzell, counsel for A -Taxi, remarked this had been a long and detailed process that began in May when A -Taxi was served with a notice of intent to revoke or rescind its license. The city had the discretion to have this heard by a hearing officer, and under the regulations governing this action, she reported the hearing officer should have been from the California State Mediation and Conciliation Services Department, using a process in which both parties agreed on a hearing officer from a list of choices. In this case, she stated, Anaheim specifically recommended Allen Burns as the hearing officer on contract with the city and A -Taxi concurred with that recommendation. It was Mr. Burn's recommendation, she pointed out, which resulted in a positive outcome for A -Taxi. Ms. Cazzell further emphasized that with three full trial days that included the disposition and consideration of three written motions, 56 exhibits and other documents admitted into evidence, and 11 witnesses, each of the taxi franchise competitors were present and had many opportunities to speak and chose not to do so. She believed if they chose to speak this evening, it should be considered out of order. In addition, she remarked the hearing officer had a 15 page, well- reasoned opinion which included 78 written findings and recommended that the City Council not terminate A- Taxi's vested right to its ten year franchise. Kenneth Zwick, counsel on behalf of A -White and Yellow Cab ( "A- Taxi "), indicated he would summarize Mr. Burn's conclusion and why Council should adopt it. The basic issue that was subject to the three day trial was whether or not A -Taxi had violated its franchise or failed to live up to the terms and conditions of that franchise and as Mr. Houston described, due process required and the city agreed it had the burden of proof because of granting and awarding the franchise on August 21S He noted Mr. Burns focused on two issues: 1) was there a violation for having originally submitted in response to the RFP, financial statements that were not actually audited by a CPA; and 2) in response to a request by the city, did A -Taxi do something improper and violate its franchise by using a more financially reasonable method of responding with six years in a combined financial statement. He noted the conclusion on the first issue was that there was no violation and no failure to comply with the terms of the franchise by using an audit by an accountant who was not a CPA. He pointed out the RFP did not require that an audit be done by a CPA and Mr. Burns concluded that its primary goal was to look at whether or not this particular taxi franchise had financial stability, a conclusion that council reached when at the time it knew the financials were "inconclusive ". Also, he remarked, Yellow Cab whose franchise was not taken away used French accountants who were not licensed in California. There was also no indication of any intent by A -Taxi to deceive the city, just an effort to use one or more inexpensive professionals and when asked to do so in response, A -Taxi then went out and hired Mark Rosenberg and provided audited financials from a CPA, originally in the form of a combined statement and then later in the form of six individual years once it became clear there was an objection by the city about the the combined statement. The next conclusion reached by Mr. Burns was that the submission of the six years did not violate A- Taxi's franchise as the city did not specifically demand that individual years be submitted originally, and general accounting practices; i.e., "gap," allowed for combinations of years and when asked, A -Taxi did submit the six years individually and received a passing grade. Mr. Zwick stated there had been some discussion on whether or not there was some difference between Mr. Joshua's conclusions and the conclusions by Mr. Rosenberg in terms of their submissions and Mr. Burns pointed out these were just differences in the way two different accountants handled the same numbers and there was no attempt to deceive. Mr. Burns concluded that it would be inappropriate to take away this taxi franchise and Mr. Zwick remarked that this process had City Council Minutes of October 8, 2013 Page 14 of 22 gone on long enough and A -Taxi had been serving Anaheim responsibly for 20 years and deserved the franchise they were awarded. Mr. Houston remarked if there were others who wished to speak; their time would be limited to three minutes as this was not a public hearing. Tim Conley, president and general manager of California Yellow Cab, asked council to reject staff's recommendation and proceed with the revocation process of A- Taxi's franchise. Mr. Conley remarked that A- Taxi's franchise proposal submitted in March, 2012 contained multiple misrepresentations and was submitted with the intent to deceive city staff and the Taxi Advisory Committee. He stated their deception was not limited to financial statements as they included in their proposal a plan to use an alternative fueled vehicle that did not exist and whose future production was problematic. In addition, he added, they failed to disclose they were defendants in major litigation as specifically required by the RFP. These issues along with their attempt to misstate their financial condition were not a sloppy preparation, he emphasized, but a fraudulent attempt at getting a taxi franchise. He pointed out A- Taxi's owner testified that his company never operated a vehicle that was not insured when in multiple cases from 2005 to 2006, his own insurance carrier, Lincoln General, sought and was granted declaratory relief from claims resulting from taxis involved in at -fault accidents that were not listed on the insurance. He urged council to reject the recommendation. Bill Gray, A -Taxi franchise manager, offered the following in rebuttal. He thanked the city for their patience and the hearing officer for listening, reviewing and studying the facts to ultimately come up with a determination in his firm's favor. He thanked the city for allowing A -Taxi to serve the city with a new, much in demand fleet, and to serve the elderly on the west side. He assured council his drivers were highly trained, insured, with all judgments having been reviewed, and pointed out that as a member of OCCTAP, they had been given clearances to operate. Council Member Kring asked what the reference to a non - existent alternative fuel vehicle meant with Sandra Sagert responding that during the evaluation, the city's consultant did review the alternative fuel proposal and although there was nothing on the books relating to their proposal, A -Taxi did have five years to come up with a plan for implementation and if they did not meet those requirements, there were ramifications within the franchise to handle that issue. In reply to the type of fuels currently being used, Ms. Sagert replied CNG vehicles were used but A -Taxi was seeking to take used vehicles and convert them to CNG and the question was whether or not that was possible. Mayor Tait moved to accept and adopt the recommendations of the hearing officer not to terminate A- Taxi's franchise, seconded by Mayor Pro Tern Eastman. Mayor Tait and each of the Council Members disclosed they had not spoken to any of the franchisees on this matter in many months. Council Member Brandman added that upon receiving advice from the city attorney's office, he had not had any communications with the franchisees since that time. Roll Call Vote: Ayes — 4: (Mayor Tait and Council Members: Brandman, Eastman and Murray.) Noes — 1: Council Member Kring. Motion Carried. City Council Minutes of October 8, 2013 Page 15 of 22 PUBLIC HEARING: 25. CONDITIONAL USE PERMIT NO. 2013 -05679 (DEV2013- 00016) OWNER: Deluxe Banquet Hall, 237 E. Olive Avenue, Burbank, CA 91502 APPLICANT: Phil Schwartze, PRS Group, 31103 Rancho Viejo Road D -2260, San C220 Juan Capistrano, CA 92675 and Rafi Topalian, Designwork Studios, 2030 E. 4th Street #221, Santa Ana, CA 92705 LOCATION: 1.3 -acre property located at 420 South Brookhurst Street; approximately 595 feet south of the centerline of Broadway The applicant proposes to permit a banquet facility which includes a restaurant with the sales of alcoholic beverages and hookah lounge within an existing restaurant building. Environmental Determination: The proposed action is Categorically Exempt from the requirement to prepare additional environmental documentation per California Environmental Quality Act (CEQA) Guidelines - Class 1 (Existing Facilities). ACTION TAKEN BY THE PLANNING COMMISSION: Approved added conditions of approval limiting the number of patrons in the hookah smoking area to 44 patrons; and that the applicant is to obtain a parking agreement with the property owner to the south prior to construction. (Vote: 5 -0. Chairman Ramirez and Commissioners Bostwick, Caldwell, Lieberman and Seymour voted yes. Commissioners Agarwal and Persaud were absent) (Planning Commission meeting of August 26, 2013) (Review of Planning Commission's decision set by Mayor Tait and Council Member Kring). RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM approving Conditional Use Permit No. 2013 -05679 and making certain findings in connection therewith (DEV2013- 00016;420 South Brookhurst Street). At 8:17 P.M., the public hearing item was introduced with Planning Director Sheri Vander Dussen reporting that last August, the Planning Commission conditionally approved a banquet facility, including a restaurant with service of alcoholic beverages and an accessory smoking lounge at 420 South Brookhurst Street. At this meeting, she stated, the public expressed concerns with the smoking lounge and its proximity to homes; noise from restaurant and banquet patrons; the amount of parking proposed; and the use of valets to increase available parking when multiple events were scheduled; all of these issues, she explained, were determined to have been addressed. Following that approval, the City Council initiated review of the Planning Commission's decision. She provided a historical narrative of the project. The subject property was developed with a vacant restaurant building with the applicant proposing to add a second floor and renovate the exterior of the building. A banquet room would be located on the first floor and a restaurant with an accessory outdoor smoking lounge would be located on the second floor, with the smoking lounge intended for the exclusive use of banquet and restaurant customers. As conditioned, Ms. Vander Dussen stated, the smoking lounge would have a maximum occupancy of 44 customers, would only be open to patrons already attending a banquet or dining at the restaurant with no alcoholic beverages permitted in the lounge. Under the current code, she explained smoking lounges were allowed through a regulatory permit approved by staff and did not include any formal process for consideration of public comment. Additionally, the recent amendment to the zoning code would allow a smoking lounge to be located closer than 200 feet to a residential zone subject to approval of a City Council Minutes of October 8, 2013 Page 16 of 22 conditional use permit (CUP) and relating that parameter to this project. She noted the smoking lounge was 220 feet from a residential zone, even though portions of the building were closer to nearby residences. She indicated because the tenant's space exceeded that 200 foot separation, the smoking lounge would be considered permitted by right. Ms. Vander Dussen added that because there was such a robust interest in the accessory smoking lounge, staff talked to the applicant's representative who agreed to measure the distance to the residential zone from the east wall of the restaurant building, not the space occupied by the smoking lounge and this changed the parameters of the project and required a conditional use permit because the facility was now located within 200 feet of a residential zone. This change allowed the Commission to take testimony and consider all potential impacts of this project. She remarked the Commission found that concerns of noise, smoke and disruptive behavior had been addressed because the smoking lounge was limited to 44 patrons, would be more than 200 feet from homes, and because the second floor space occupied by the restaurant would create a physical barrier from the homes. Regarding parking concerns, she indicated the site had 137 self - parking spaces and 183 spaces when valet services were used. In addition, a parking study prepared by a licensed traffic engineer, found that the average occupancy for each car at four banquet halls surveyed was 3.2 persons and the proposed banquet facility had a maximum occupancy of 470 guests resulting in a customer parking demand of 150 spaces and an additional 10 spaces for employees. In addition, she pointed out the applicant submitted written confirmation that the neighboring property owner to the south was agreeable to allowing additional self - parking on his property and that agreement was a condition of approval requiring a signed agreement for that site. She noted residents expressed concerns that patrons of this facility would park on Archer Street with staff indicating that unless someone was familiar with the neighborhood, it was not an obvious choice for overflow parking and would most likely occur at a commercial location on Brookhurst Street being closer and more visible. She added council could also take steps to restrict parking on Archer if desired. Ms. Vander Dussen stated that community outreach was conducted and on three occasions prior to the Planning Commission meeting, the applicant's representative met with representatives from West Anaheim Neighborhood Development (WAND). At these meetings neighbors expressed concern about late night noise in the parking area adjacent to their homes and in response, the applicant designated the parking area along the east property line for valet parking during banquets to reduce noise form patrons gathering and talking in the parking lot after events. To further insure compatibility between the banquet and restaurant facility and nearby residences, Ms. Vander Dussen detailed the conditions of approval agreed to by the applicant: They prohibited installation of windows on the east building elevation; prohibited amplified music outside the building; required the rear door on the east building elevation to be closed during events; prohibited employees from congregating on the east parking lot; required trees to be planted along the east property line; required security to be provided during banquets and required the business to close at 10 PM, Tuesday through Thursday and 1 AM on Friday and Saturday. Based on these conditions, she noted, the Planning Commission found that the proposed restaurant and banquet hall would be compatible with nearby residents. Since the Commission meeting, Ms. Vander Dussen reported, the city received numerous letters and emails concerning the proposal; i.e., many of the residents near the property also lived in close proximity to an existing hookah lounge and had negative experiences with smoke, noise and other problems. She indicated this application was not for a stand -alone hookah lounge as the primary use of the site would be as a family restaurant and banquet hall. In response to concerns expressed by neighbors, staff prepared revised conditions of approval and those were highlighted for council's information and in addition, copies of conditions were City Council Minutes of October 8, 2013 Page 17 of 22 available to the public. She noted staff also recommended that the condition to secure an agreement for parking on the site to the south be modified to allow the applicant to secure additional parking within 1000 feet of the site to provide more options to patrons. Additionally, construction materials would be used to contain noise within the building, on site security personnel would be a requirement of the CUP, and the security plan would be evaluated and approved by the Police Department. She advised that staff would make at least two site visits during the first six months of operation to assess whether the business was cooperating in compliance at the applicant's cost; phone numbers of the business manager and the city's Code Enforcement Division would be sent to residents living within 300 feet of the site or who submitted a comment letter regarding this appeal. Ms. Vander Dussen indicated the applicant also agreed to the following mitigations: At the request of adjoining property owners, the applicant would install an eight foot block wall along the east property line to address second hand smoke concerns. In addition, the smoking lounge would be located on the second level in front of the building on Brookhurst side, about 233 feet from residential lots. Lastly, she stated the Planning Commission imposed a condition requiring the business be reviewed six months after opening to ensure it was operating in compliance with all conditions. Staff recommended council uphold the Commission's action approving the proposed restaurant, banquet hall, and smoking lounge. Mayor Tait opened the public hearing explaining the process and time limits for speakers. Philip Schwartze, representing Deluxe Banquet, indicated the applicant had read and understood the 42 conditions of approval. After an extensive community outreach program, he reported, the applicant was willing to consider any ideas on the physical plan as well as the operational plan that would enhance their project. Mr. Schwartz remarked that Deluxe Banquet and the facility they had in Burbank was a first - class, high -end operation and were investing millions to upgrade this property in west Anaheim. Council Member Kring disclosed she had met with Archer Street residents to discuss their concerns and that one of their major issues was second -hand smoke. She asked if the applicant would consider using a product such as smoke - eaters so the smoke did not dissipate into the atmosphere. Mr. Schwartz indicated that was discussed at this morning's neighborhood meeting and he would investigate that process, although he understood it worked well in confined spaces but was not sure it would work in an outside area which was a mandate by the state of California for this project. Council Member Kring also suggested adding walls to the outside area. Bernice Danker, Archer Street, thanked the Mayor and Council Members for consideration of the residents' concerns. She indicated it was made clear that the appeal would most likely not be granted but that residents might be able require further conditions of the applicant that would make this development successful and not interfere with the quality of life in this neighborhood. She indicated residents would be watching closely and reporting any and all infractions and expected the property owner to be held accountable for actions on his property. She provided 14 letters from neighbors in opposition to this project to enter into the record and expressed her personal objections to the project due to noise and parking. She stated since the project was so close to the residents, she believed there would be unacceptable levels of noise as the only entrance and exit doors were located closest to residents. She believed there would be increased need for security both at the facility and in the neighborhood due to increased car and foot traffic before and after events and would not hesitate to let the owner know if the measures were inadequate. She emphasized the hookah lounge was a big issue to the community and City Council Minutes of October 8, 2013 Page 18 of 22 she believed that secondhand smoke could have a long- lasting negative influence on the health and quality of lives since residences backed up against this property. She pointed out that according to the state Department of Health, 45 to 60 minutes of smoking a hookah pipe was equivalent to smoking 100 or more cigarettes and that the neighborhood's concerns were based on real experience and not just fear of the unknown. She ended her statement remarking that although it was beyond the scope of this appeal hearing, she would like to go on record to say that the current municipal codes and smoking lounge ordinance pertaining to hookah bars were much too lenient and did not protect the residents of Anaheim against the proliferation of hookah occurring in the city. Mike Sbini, Archer Street resident, thanked Mayor Pro Tern Eastman and Council Member Kring for visiting the neighborhood to understand problems associated with hookah lounges especially as he lived directly behind The Fusion establishment, less than 30 feet from his back wall. His complaints were numerous, from the odor of charcoal and tobacco that permeated his backyard to the live music, car alarms and people yelling and talking as they left the bar. Trees planted in his back yard did not prevent smoke from impacting him and he was convinced this had a negative effect on his health and that of his family and neighbors. Should the hookah bar be enclosed and the air filtered, he stated, he would not be opposed to the addition of a new restaurant on the westside but was strongly against a hookah smoking lounge. David Kaplan, Brookhurst Street, felt that parking had not been adequately addressed and that this development would result in many customers parking on residential streets. He felt the staff report relied on an inadequate traffic safety engineering report for property use as it concluded that valet parking prevented cars from using side street parking. The report did not take into consideration how many customers would not use valet parking, how many would not park at the facility and how quickly those in line for valet parking would wait before seeking side street parking. Additionally, those cars queuing in line for valet parking would wait on Brookhurst Street where they could become collision hazards and expanding the valet parking zone was not possible due to configuration of the loading zone. In addition, the presence of lead and asbestos in the existing building was a concern to him and one which required environmental mitigation. Mr. Koplan made a number of requests for specific conditions of approval addressing his concerns. Chong Rha, Archer Street, opposed this development citing privacy, safety, smoking and noise pollution caused by those leaving the facility. She had heard from neighbors who had problems with Club Ember, another hookah smoking lounge regarding traffic, trash, and inappropriate behavior related to alcohol use. She spoke of her problem with Lava Lounge, a bar located on Brookhurst Street that played loud music until 2:00 AM. She also provided a list of demands she would require to ensure her quality of life was not impacted by this proposed development. Jim Pham, Archer Street, was opposed to the project as his back yard was directly behind the building. His daughter, Amy Pham, then spoke on his behalf indicating he had worked six days a week and again on Sunday putting a lot of time and dedication into their yard and he did not want his property values to decrease because of the hookah lounge. She explained how smoke impacted her and her brother who suffered from asthma and urged that the owners extend the walls and comply with health regulations so that the smoke did not pollute. Charles Milton remarked that many issues had been voiced, many voices had been heard, and that overall, the interchange had been good. He added that California had one of the highest standards in the world for clean air and he felt that it was time to stand up and say "enough was enough ". He remarked the knowledge of the detrimental effects of smoking was well known by City Council Minutes of October 8, 2013 Page 19 of 22 all and this area of Anaheim was becoming known for that type of business. In addition, he had been kept up from 2:00 to 5:00 AM in the morning by loud music from the existing two other hookah lounges, asking that council consider this information as they envision the future of Anaheim and make those decisions based on consideration of all. Florence Kaplan remarked that her concerns for residents should be the number one reason for rejecting the Planning Commission decision, adding that hookah bars encouraged smoking when most Californians were concerned about preventing it and preserving their health. Additionally, there were other health issues related to passing a communal hookah pipe between smokers and its harmful effects were well known. Mrs. Kaplan read a letter from Kris O'Brien into the record who pointed out the hookah lounge was not enclosed so there was no structure to protect residents from second -hand smoke. She asked for a study from the applicant that would show that residents were protected and if not, the lounge should be enclosed. She pointed out the new entrance was now125 feet closer to the residents and should be moved away to mitigate noise factors and that the two story structure did not blend into the neighborhood and should be lowered to be less obtrusive. She also felt the mezzanine should be included in the calculations of square footage as it would have required environmental approval because the development would now be more than 10,000 square feet in size. She questioned the overall planning of the facility, its size, and operation. Amanda Knitter, American Lung Association of California, expressed concerns with hookah lounges remarking it had the same harmful effects as cigarettes and California had strong workplace laws that protected patrons, citizens, and employees from these types of hazards in the work place. She remarked it was a practice becoming popular among younger generations and opening up these types of establishments was sending the wrong message to our youth. She added there were solutions out there and cities in Orange County were taking steps with licensing and code enforcement in prohibiting hookah bars or preventing new ones from opening up because they recognized this as a health concern and a trend. Julie Parrish asked that everyone opposed to hookah lounges stand up and be counted. She operated a 24/7 child care facility for special needs children with medical problems adding that smoke did not help these children; it harmed them. In addition there were also two other homes on Archer that handled special children with medical conditions, none of whom were noticed about this development and all of whom were licensed by the county and the state. She asked council to protect the neighborhood by enclosing the hookah bar, filtering the air and making it safe for others in the area. John Pester, lived south of Ball Road off Brookhurst Street, remarking his concern related to traffic impacts to the area in general. With banquet attendees arriving at a set point in time and cars backing up onto city streets waiting for valet service, he asked that those impacts be reviewed and considered in a traffic impact analysis study to go beyond looking for adequate parking on site. With no other comments offered, Mayor Tait invited the applicant for rebuttal testimony. Mr. Schwartz, applicant's representative, addressing valet parking, stated the experts were convinced there was more than adequate space and more than adequate parking because of the free valet service and ability to self -park. While he understood the concerns raised, it was felt the parking studies addressed those issues together with the agreement from the property to the south. Referencing comments made regarding potential lead and asbestos, he indicated City Council Minutes of October 8, 2013 Page 20 of 22 that was a common issue that the Building Department dealt with regularly and regulations for handling removal of asbestos and lead would be followed and were common activities in construction. Referencing noise, he believed the applicant addressed that by eliminating any windows on the east face and pointing out new building codes effective in January were much tougher than in the past and provided better noise containment and in addition, there were conditions of approval which required doors to be closed, etc. He added that the facility was subject to a six month review, and the city would have another opportunity to judge the operations. Adding that if would be around January, 2015 by the time the restaurant opened for business. With no further testimony to be received, Mayor Tait closed the public comment portion of the hearing and called for questions or statements by council. Council Member Kring inquired if an agreement had been signed by the property owner to the south for on -site parking with Mr. Schwartz responding the property owner had given the applicant an agreement, it was countersigned and returned to the property owner and not yet returned to the applicant. The revised condition stated the banquet facility could also add parking within 1000 feet, if needed. She asked if there was any way to lessen the 44 patrons for the hookah lounge with Mr. Schwartz responding the plans had laid out individual smoking pods and with that configuration, the site was limited to 44 patrons. He added there was no food service or alcohol connected with the smoking lounge. Mayor Pro Tern Eastman asked for a clearer definition of what the state law required versus an enclosed area where the smoke was HEPA filtered. CJ Amstrup, Planning Services Manager, remarked the regulations pertaining to smoking indoors were related to a smoke free work place, so it was substantially for a safe environment for those working. He noted there were a few options where it was legal to smoke inside; one was for a business retailing tobacco and those businesses were also allowed to have a smoking lounge attached or if it was the sole proprietorship where the person operating the business was the sole employee. Those, he added, were the limited opportunities for smoking indoors for the state of California. She asked who enforced that regulation with the response given that enforcement had been delegated to cities. Mayor Pro Tern Eastman then inquired whether there was any kind of technology such as hood vents that could be used to eliminate second hand smoke concerns with Mr. Schartz remarking he would look into it, although the idea of a hood would mean the area would most likely be enclosed. Council Member Kring wondered if it were possible to adopt a law enclosing hookah lounges in an effort to protect neighbors' health. Ms. Vander Dussen responded that would need some research however her initial reaction would be probably not because of the way the state law regulated smoking in the work place. Council Member Kring asked if staff could address the hookah bars, Fusion and Embers. Ms. Vander Dussen stated one of the code enforcement officers visited Fusion Cafe last Friday and discovered they had some outdoor dining seating that was not allowed by their permit and there was cause for an enforcement case on that issue. At that time there was no music playing. With respect to Embers, it had a CUP to operate as a nightclub which was a different type of operation than this project and she pointed out, staff was very aware that Embers was not operating in compliance with the terms of its CUP and had been coordinating efforts with the ABC board to bring them into compliance. At this point efforts had not been successful and staff would recommend a hearing to consider revocation of their permit. City Council Minutes of October 8, 2013 Page 21 of 22 Council Member Murray stated there were significant concerns raised about parking asking if a possible mitigation would be a parking permit district for Archer Street. Ms. Vander Dussen responded that council had adopted a policy regarding permit parking which basically indicated it was a last resort and other measures should be tried first. In the event an application for permit parking was filed, the city would conduct a survey and 70 percent of impacted property owners would have to agree with permit parking before it was implemented. Mayor Pro Tem Eastman remarked she had been informed that the city of Glendale created a fresh air regulation that restricted outdoor patio smoking areas to 25 percent of their patio and that was a direction she would support. Mayor Tait indicated he had a chance to meet some of the Archer residents and also with Mr. Schwartz. He felt this was a balancing process because quality investment on Brookhurst Street in this area was needed and on the other hand, he did not want it to be a nuisance to the neighborhoods. He suggested some type of vegetation or vines would soften the look of the two sides of the buildings with no windows and would stop sound from bouncing off those walls with Mr. Schwartz indicating agreement. With regard to cars waiting for valet service and stacking up on Brookhurst, he asked staff to address that issue. Staff responded that had been reviewed with the traffic engineer and no stacking issues had been identified, adding that if vehicles were queued in two rows, the space would accommodate as much as seven vehicles. Council Member Brandman remarked that everyone that participated in this project, from the community to staff and the applicant and his representatives, had made this a better project and he was appreciative of the progress made by working together. He asked that a requirement for the lead and asbestos abatement could be reiterated in the conditions of approval. Council Member Kring remarked the smoke did end up in the neighborhood as she had personally seen and she would like staff to look into enclosing the smoking area and utilizing products such as smoke - eaters or any mitigation that could lessen the impact of second hand smoke and make that a condition of approval as well. Mr. Schwartz remarked if that path was allowed per State law, the applicant would enclose the lounge. Mayor Pro Tem Eastman emphasized that as the city's policy board, council had an opportunity make changes in policy and based on her concern for the health of residents, she was not going to support this project and requested staff work on creating a fresh air regulation for Anaheim. Council Murray remarked it was important that new regulations be universal to all businesses operating a similar establishment so there was equanimity for the businesses and the same protection for those nearby. She asked that staff make sure they were considering the entire landscape and apply it equally. Council Member Kring suggested this item be postponed for one month so staff could figure out how to satisfy the neighbors and while getting a new restaurant in Anaheim. Mayor Tait believed it made sense to move forward with the project tonight, stating the hookah lounge was a major part of the development and the six month review period allowed staff to determine whether the facility was managing its operation per the conditions of approval. Discussion continued on whether the smoking lounge could be enclosed and how significant that component was to the development itself. Mr. Schwartz was asked if he was agreeable to a continuance with the response given if that was the will of council, he would concur. Mayor Tait stated he was open to new information and after consulting with Mr. Schwartz on a date, moved to continue the matter to November 19, 2013 adding that staff had heard all the questions and concerns raised and the suggestion to enclose the smoking area with the provision of some type of filtration; the motion was seconded by Council Member Kring. Council Member Murray disclosed she had met briefly with residents and had received materials from the applicant. City Council Minutes of October 8, 2013 Page 22 of 22 Roll Call Vote: Ayes — 5: (Mayor Tait and Council Members: Brandman, Eastman, Kring and Murray.) Noes — 0. Motion to continue this item to November 19, 2013 with public comments closed. REPORT ON CLOSED SESSIONS: None COUNCIL COMMUNICATIONS: Mayor Pro Tern Eastman requested staff look into becoming a Purple Heart City and placing speed bumps on Sycamore between Harbor and West to discourage cut - through drivers. She spoke of her attendance at the Grand Terrace grand opening and announced the CHOC Walk and Fall Festival. Council Member Kring spoke of her attendance at the Grand Terrace opening and announced the following events: Muzeo's Born to be Wild exhibit, Avon /Dakota Adopt -a- Neighborhood cleanup event, Oktoberfest at Oak Canyon Nature Center on October 19 and 20 and the Veterans' Day Celebration on November 9. Council Member Murray announced the CHOC Walk with Team Adela and spoke of the grand opening of the Honda Center's Grand Terrace and the opening season of the Anaheim Ducks. She requested staff develop a robust community outreach plan relating to the economic/ community benefit as it pertained to the Angel's stadium for council's consideration. Council Member Brandman spoke of the grand opening of the Grand Terrace and CHOC walk for Team Adela and Team Ely. Mayor Tait discussed Anaheim City School District's 1 Million Acts of Kindness project and the Mayor's Trophy at the Feast of Ales. He also requested the meeting adjourn in memory of Council Member Kring's father -in -law, Rudy Kring. Adjournment: At 10:32 P.M., Mayor Tait adjourned this meeting in memory of Rudy Kring Re pect Ily submitted, d,1 Linda N. Andal, CMC City Clerk