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HomeMy WebLinkAbout10-08-1996 Special Council Mtg CITY OFAUBURN AUBURN CITY COUNCIL SPECIAL MEETING OCTOBER 8, 1996 - 4:00 PM Council Work Area Minutes The special meeting of the Auburn City Council convened at 4:05 PM. Those in attendance included Mayor Charles A. Booth and Councilmembers Jeanne Barber, Stacey Brothers, Sue Singer, Trish Borden, and Fred Poe. Staff members in attendance included Assistant City Attorney Judith Ausman, Police Chief Dave Purdy, and City Clerk Robin Wohlhueter. Joining the special meeting later were Councilmembers Gene Cerino and Rich Wagner. Staff members included City Attorney Michael J. Reynolds, Planning & Community Development Director Paul Kreuss, Assistant Planning Director Lynn Rued, and Auburn Police Guild President and Auburn Police Bicycle Patrol Officer Jamie Sidell. I. Introduction Mayor Booth briefly commented on the purpose of tonight's meeting. Mayor Booth introduced Heidi Horst, Assistant City Attorney from the City of Tacoma. Ms. Horst supervises Tacoma's Municipal Court Division and drafted Tacoma's curfew ordinance. II. Curfew Ordinance A. Tacoma's Curfew Ordinance Heidi Horst described her experience and background information in establishing a curfew ordinance for the City of Tacoma, She commented upon background investigations for curfew ordinance research, the constitutionality of implementing a curfew ordinance, what was considered in crafting an ordinance for Tacoma, and what happens once a curfew ordinance is in place. In Tacoma specific citizens identified a need for a curfew ordinance. Public concerns were raised regarding seven to ten teenagers congregating on a street corner late at night. They were not committing a Auburn City Council Special Meeting October 8, 1996 Page No. 2 crime, but some citizens felt intimated. At that time the Police officers did not have a basis for contact with the teenagers. Issues considered by the City of Tacoma were solutions that answered the need of its citizens, if adopting a curfew ordinance covered gaps in the solutions, what were the liability issues, and where to transport juveniles once they have been cited for an infraction. The State of Washington voiced a legislative recognition of the problem by adopting a curfew law that basically stated cities could adopt a curfew law. It did not address the issue of constitutionality. The RCW requires any violation of a curfew ordinance be an infraction. It is not a criminal offense. In Tacoma, community service is an alternative if a person is unable to pay the fine. Initially, the City of Tacoma considered a neutral zone and other resources available such as the YVVCA, boys and girls clubs that could be a network of late night programs. Because curfew ordinances historically have been declared unconstitutional, Tacoma's legal department looked at the balancing test. They looked at the community's need, the severity of the intrusion into people's rights; and the seriousness of situations that allows police to contact children on the streets. In drafting an ordinance for Tacoma, Ms. Horst indicated it presented constitutional problems. Once you adopt a curfew ordinance the City acknowledges that the streets are dangerous and the curfew provides a mechanism to get the children off the dangerous streets. There are liability issues to consider such as where do you take the children once they are identified as being in violation of the curfew ordinance. When the Tacoma City Council adopted the curfew ordinance, it agreed to revisit the ordinance after a year to determine whether or not the curfew was working. Adoption of a curfew ordinance in Tacoma allows police contact with teenagers that otherwise might not be allowed, Ms. Horst indicated Fire stations are identified as safe places in Tacoma. Police officers transport kids to fire stations if there is nowhere else to take them. An officer follows a procedure to make an attempt to contact an adult. Tacoma's ordinance allows parents to be found in violation of the curfew ordinance if they knowingly allow their child to remain out after curfew. Auburn City Council Special Meeting October 8, 1996 Page No. 3 Review after one year has shown the curfew ordinance it is working. The Tacoma City Council readopted its curfew ordinance based on the fact that juvenile crime during specified hours was dropping. Quarterly reports are distributed to the Council reflecting the statistics regarding curfew contact. It is broken down by race, gender and dispositions. Juvenile crime rate has declined 40% in Tacoma since the curfew ordinance was enacted. Curfew is city wide and they monitor statistical information such as race, gender, and who is being arrested and who is being stopped on curfew but arrested on something else, and who is being stopped on curfew and released. Ms. Horst suggested the City look at statistics of what's going on between the hours of midnight and 6:00 AM and based on that information determine whether a curfew is an appropriate response to those statistics. She also suggested Auburn find a way to articulate a strong need for a curfew ordinance that will withstand a constitutional challenge. A considerable amount of time was spent researching other ordinances. Ms. Horst referred to an ordinance adopted by the City of Dallas, Texas. This ordinance has been working well and thus far has withstood constitutional challenges. Ms. Horst indicated the Dallas ordinance presented a strong foundation as to the need of its community that called for a constitutional intrusion. Issues to consider after adoption of a curfew ordinance include: 1 .) What are the resources being expended in defending the curfew?; 2.) When you address children on the street at midnight and they are in violation of the curfew ordinance, what follow up obligation does the City have if they are not going to detain the juvenile? 3.) Does the City have an obligation to take that child somewhere? Ms. Horst discussed the Bellingham case where police contact was made based on the curfew ordinance and later the ordinance was found unconstitutional. Ms. Horst urged identification of the nature of Auburn streets between 12 midnight and 6:00 AM to identify the need. Council discussion centered around the crime statistics used in development of a curfew ordinance in Tacoma, establishment of neutral zones that incorporate a broad area, consideration of a progressive approach which encourages kids to get off the street. Both Mountlake Terrace and White Center have neutral zones. Auburn City Council Special Meeting October 8, 1996 Page No. 4 Ms. Horst discussed how Tacoma developed curfew hours. They remain the same all year round. It's easier to remember when they remain the same all year round. Ms. Horst indicated curfew hours were based on the dark hours. They took school events and jobs into consideration. Tacoma considered midnight to 6:00 AM and then looked at statistics to support those hours. Ms. Horst urged Council consideration of defenses (exceptions) which demonstrate the City is not being unreasonable in addressing the need by allowing children to do what they may have to do to get from one place to another. Th~ City of Dallas felt adding the defenses (exceptions) kept their ordinance constitutional. The Tacoma City Council and Tacoma Police Department feel the curfew ordinance is successful. B. Other Curfew Ordinances Judith Ausman briefly addressed other curfew ordinances in the state of Washington. Copies of some of the state curfew ordinances were distributed to members of the City Council. Ms. Ausman briefly reported on the Bellingham ordinance. It continues to be challenged in the state court system in the Court of Appeals. Bellingham has recently passed a parental responsibility ordinance. Ms. Ausman read the State law 35.21.635, Juvenile curfews. Ms. Ausman informed the City Council it must meet the requirement of the State statute with regard to curfew. Each curfew ordinance presents findings regarding the interest, needs and goals of the City in passing regulations contained in a curfew ordinance. Defining parent, juvenile, exceptions, violations, fines, ordinance cannot have any criminal sanctions, curfew times and days. C. Curfew Legal Issues Ms. Ausman discussed the legal issues surrounding juvenile curfew ordinances determined by the Courts to be unconstitutional. Most have been found unconstitutional on one or more of the following grounds: L vagueness (persons read but did not understand); over broad; violation of equal protection or violation of the due process protection clause of the 14th Amendment; and parental privacy rights. Auburn City Council Special Meeting October 8, 1996 Page No. 5 A 5th Circuit case Qutb v. Strauss demonstrated the need for an ordinance which is drafted very narrowly, and provides exceptions that any burden is minimal in balancing the good of the public verses the parental rights. The Dallas ordinance was upheld because it had statistics to back up the reasons for implementing the ordinance. The ordinance defined the interest and the goals the City wished to meet, and the intrusion upon the rights was minimal. They had many exceptions which are incorporated into the Tacoma's curfew ordinance. Under Texas law, a juvenile curfew ordinance can meet constitutional standards. In drafting an ordinance, Auburn will need to meet U.S. Constitutional Standards and the Washington State Constitutional Standards and Washington Statutes. Because the Courts have determined that juveniles have rights, Ms. Ausman urged the drafting of a curfew ordinance which addresses Auburn's problem or need for implementing regulations. The City cannot interfere with a juvenile fundamental rights without having a compelling state interest or a great need. Minors' rights are not coextensive with those of adults. D. General Discussion Council, staff and members of the public were given an opportunity to raise questions with regard to curfew. Questions such as obtaining statistics, what the Police Department currently observes on the streets, and what impact, if any, has there been with the City's Late Night Program, current laws to prevent vandalism. Jamie Sidell, President of the Police Guild, reported members of the Police Guild are in favor of a curfew ordinance despite the difficulty in implementation. A curfew ordinance is a good tool to be able to make a contact with a juvenile out on the street late at night. Mayor Booth asked if there was a correlation with the late night program and the reduction of incidents and concerns regarding juveniles on those evenings. Mr. Sidell reported there are a lot of kids attending the late night program who have broken the law. He felt the late night program provides these kids with an organized program and gets them off the street. E. Conclusion It was agreed staff would draft an ordinance, provide statistics, and look at the determinative factors surrounding a curfew ordinance in Auburn. Further review will be at a future workshop. Auburn City Council Special Meeting October 8, 1996 Page No. 6 The meeting recessed at 5:35 PM. The meeting reconvened at 5:50 PM. III. Adult Entertainment Mayor Booth described the purpose of the study session is to review the background documents of proposed Adult Entertainment ordinances. The Council will look at factual patterns and backgrounds, and what has been done in other cities. Mike Reynolds discussed the legal issues, consideration of individual rights verses the public welfare when reviewing the adult entertainment ordinances. Less than a year ago, the City enacted an adult use entertainment moratorium. The moratorium expires in December, 1996. In developing an ordinance for adult entertainment, the City is guided by Supreme Court decision in the City of Renton v. Playtime Theater. As a result of this case, it was determined that adult entertainment may be regulated through a zoning process. The ordinance package is presented in two phases, zoning which certain areas of where adult entertainment is allowed, and certain protected areas. A. Staff Presentation - proposed zoning code changes regarding adult uses Lynn Rued referred to a notebook distributed to Mayor and City Council which presents background information relating to adult uses including proposed changes to the City's zoning code. Proposed Ordinance No. 4885 changes the definitions regarding adult uses and adult entertainment. Based on court rulings each ordinance presents what other municipalities such as Kirkland, Bellevue, and Federal Way have adopted. Further Supreme court rulings stated that you cannot categorize adult book or video stores with adult entertainment establishments because they do not have the same secondary impacts. Adult use location requirements prohibit adult uses within one thousand feet to sensitive uses. Proposed Ordinance No. 4886 prohibits adult uses within one thousand feet of a residential zone, one mile within any public or private school, one thousand feet within any church, public park, public library, day care, community center, and within one thousand feet of any other adult use. Two maps were distributed and displayed showing a gray area which allows for adult uses in the C-3, M-1 and M-2 zones. The maps are referenced as Adult Uses Exclusionary Areas for Proposed Code Provisions for Adult Uses, and Existing Code Requirements. Auburn City Council Special Meeting October 8, 1996 Page No. 7 Mayor Booth raised a question on whether or not the Interurban Trail is defined as a public park or recreational area and if it is included as part of a regulatory sensitive area. Lynn Rued offered to research this question. Mr. Rued explained that because the City of Everett did not list areas where adult uses were permitted, it was challenged and required to amend its Comprehensive Plan. Because of this, staff recommends adding adult uses to those uses, subject to a conditional use permit, to a C-3, Heavy Commercial District, M-l, Light Industrial District, and M-2, Heavy Industrial District, zones. This will allow for additional review by the City for a proposed adult use business and meeting regulatory requirements of Ordinance No. 4910. Proposed Ordinance No. 4887 establishes an Adult Entertainment Establishment Chapter 5.30 in the administrative code. This chapter requires any adult entertainment establishment, as well as the manager, and certain other employees be licensed by the City. With the moratorium expiring on December 14, 1996, Mr. Rued highlighted the anticipated schedule in order to meet the timeframe. The Planning Commission will review the adult use proposals at tonighrs meeting and call for a public hearing to be held at their November meeting. A recommendation will be made to the City Council on the zoning code amendments. Chapter 5.30 does not need to go to the Planning Commission, but may be reviewed by the Planning & Community Development Committee for a recommendation to the Council. Questions were raised with regard to the separation requirements and licensing requirements for adult entertainment establishments. Mr. Rued clarified the requirements of the draft ordinances presented tonight. Physical separation requirements between the entertainers and patron are proposed at 8-feet which follows the City of Bellevue's ordinance. Licensing and background checks are required of an establishment, manager, and employee. Lynn Rued finalized his comments with a review of other sections of the notebook. The Courts have determined cities can use other jurisdictional materials to determine why the City of Auburn should be concerned about adult uses. Superior Court findings of Fact and Conclusions of Law cases Auburn City Council Special Meeting October 8, 1996 Page No, 8 for the City of Bellevue, City of Tukwila, and the City of Everett are provided for review. Another section includes Articles from the Washington State Association of Municipal Attorney's Conference publishing an article by Robert I. Heller, Rideell, Williams, Bullitt & Wlkinshaw, dated October 13, 1995 Regarding Regulation of Adult Entertainment, and an article by Londi K. Lindell, Federal Way City Attorney, regarding Adult Entertainment Legislative Record. The last notebook tab includes other adult use ordinances for other cities. B. General Discussion With court rulings as they are, Councilmember Brothers asked if adult entertainment businesses continue to be marketable. Mr. Rued indicated adult entertainment businesses continue to exist. Mike Reynolds noted the separation and tipping requirements are included as part of the proposed ordinance. Based on court rulings, a municipality acting upon the adult use entertainment subject matter may review information obtained from another municipality to understand the relationship between the criminal activity and the performances. This is illustrated as part of the notebook in police reports taken by police officers operating undercover within adult entertainment establishments. C. Conclusion Mr. Reynolds advised the Council to review the information provided in detail because it will provide an evidentiary basis for establishing restrictions to the adult use entertainment issues. Additionally, a video tape was obtained from the City of Federal Way showing undercover police operations at an adult entertainment business, Deja Vu. The video was taped prior to the enactment of Federal Way's existing ordinance. It was used to justify the distance and method of tipping requirements. Mr. Reynolds encouraged Council viewing of the video which illustrates unrestricted adult entertainment activity, and to review proposed ordinances and background information provided in notebooks. Mr. Reynolds informed the Council other jurisdictions have indicated legislation will be presented to the state legislature during the next session, similar to the proposed ordinance reviewed this evening, as a state model ordinance on adult entertainment. Auburn City Council Special Meeting October 8, 1996 Page No. 9 Mr. Reynolds reported the City of Auburn currently does not have an actual adult entertainment establishment ordinance. However, there are businesses that have conducted specific adult entertainment performances. Passive marketing of adult ~reducts does not result in the same level of criminal activity as the active 3erformances described in the proposed ordinances. IV. Adjournment The meeting adjourned at 6:35 PM. Appreved on this ay of ,1996. Charles A. Booth, Mayor Robin Wohlhueter, City Clerk