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.
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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.
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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.
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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.
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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.
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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.
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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