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City Council - 07/02/2002 - Workshop APPROVED '.MI TLTTES EDEN PRAIRIE CITY COUNCIL WORKSHOP/FORUM TUESDAY,JULY 2,2002 CITY CENTER 4:00- 6:25 PM,HERITAGE ROOM II 6:30—7:00 PM, COUNCIL CHAMBER CITY COUNCIL: Mayor Nancy Tyra-Lukens, Councilmembers Sherry Butcher, Ron Case, David Luse and Jan Mosman CITY STAFF: City Manager Scott Neal, Public Safety Director Jim Clark, City Attorney Ric Rosow, and Recorder Lorene McWaters Heritage Room H I. CALL MEETING TO ORDER Mayor Tyra-Lukens called the meeting to order at 4:10 p.m. II. APPROVAL OF AGENDA III. SMOKE-FREE AIR ORDINANCE DISCUSSION City Attorney Rosow said he had arranged to make changes to an electronic version of the draft smoking ordinance on a laptop computer as they were discussed by the Council. The document was also projected onto a screen so that the Council could actually view the changes as they were made. Councilmember Luse said he wanted to get the City Attorney's input on the recent MPAAT ruling before discussing the ordinance. City Attorney Rosow said in his opinion the MPAAT ruling does not affect the Eden Prairie City Council's process in adopting a smoke-free air ordinance. Luse said he had consulted his personal attorney regarding the MPAAT ruling and he had several concerns, including the use of public money in case the City has to defend itself in a law suit. Luse said he was also concerned as a businessperson about MPAAT being involved in activities that were ruled"illegal." He said as an individual he was uncomfortable with the reported$199,000 MPAAT used (through grants to the American Cancer Society) to lobby Eden Prairie for a smoking ordinance. Luse said he would recuse himself until he "receives clarification on what a judge termed illegal activities." Rosow said that since the City was not named as a part to the referenced suit, the court's decision does not affect actions of the City Council. Rosoxv further stated that he believes the ruling has repercussions only on the v.,ay in which XlPAAT functions as an organization. _'.fir ttes—Aly?, 002 Page: Mayor Tyra-Lukens suggested that discussion of the ordinance was still possible since no formal actions were to be taken on at this Work-shop. Luse stated again that he would not participate in any discussion of an ordinance until he is assured there is no issue of legality. He said he was excusing himself from the Workshop and portions of the Open Forum dealing with the smoking ordinance, and would rejoin the Council at 6:50 in the Council Chamber. Councilmember Mosman asked Luse why he had not brought up his concerns to the City Manager,the Mayor or the City Attorney before the meeting began. Luse reiterated he was not going to subject"his family or the Council to what I think is an illegal activity." Councilmember Case said that in all of his years on the Council, "the buck has always legally stopped with the City Attorney." He asked, since Rosow indicated the discussion could take place, why this instance should be any different. He said it seemed as if Luse was holding the advice of his personal attorney at a higher value than the City Attorney's. Case agreed with Tyra-Lukens that the point at which Luse might reasonably recuse himself would be when action is actually taken on an ordinance. Luse said he had been told the City could not hold a referendum on a smoking ordinance, and the Council had rejected his idea of gathering scientific data on which to base a decision. Luse then asked Rosow if he had read the actual MPAAT ruling. Rosow said he had read news accounts of the ruling. Councilmember Butcher said she was concerned that the Council had not had a chance to read the ruling. Case said he wished Luse had called the Mayor or City Manager to convey his concerns before the meeting. He said Luse's actions seemed theatrical to him. Mayor Tyra-Lukens suggested the Council take a short recess during which a copy of the ruling could be obtained from the Internet. Rosow could review the ruling and report on it to the Council after the recess. The meeting was recessed from 4:35 p.m. to 4:50 p.m. Rosow said his opinion had not changed as a result of reading the court ruling on MPAAT. He reiterated that a case pertains only to those who are named as part of the case. Therefore,this ruling does not prohibit the City from proceeding with discussions on a smoking ordinance. Rosow said the portion of the ruling to which Luse referred stated that the way in which MPAAT was spending funds was "without legal or factual justification." Rosow said, in essence, the court was slapping MPAATs hands. He said nothing in the decision indicates the Council cannot discuss and pass an ordinance. Councilmember Butcher said she questioned whether or not the fact that MPAAT money was used to lobby Eden Prairie would be problematic if the City passes an ordinance. Rosow said he did not believe there was a legal basis to prevent the council from discussing or enacting an ordinance. He said, "Being lobbied, doesn't incapacitate you as a Council." Luse reiterated that he was concerned about whether or not the City could be sued, and he asked how much the Council is willing to spend on this issue and the Fling Cloud Co: 6I rrut'Aop'flnia,is-J!14 2.20I1 Page Airport. Case responded that he believed a compromise on a smoking ordinance that would suit all parties involved was possible, and that it would not require any legal expenditures. He said, "We can't not act because we are afraid of being sued." Luse said he had told the Council two months ago that he felt the Council should have delayed any discussion on a smoking ordinance until after the MPAAT ruling was received. Mayor Tyra-Lukens noted that the Council passes ordinances on a regular basis regardless of the fact that they could be sued for any one of these actions. Butcher asked Rosow how long it would take to get an Attorney General's opinion on the legality of the ordinance Eden Prairie is considering. Rosow said in his experience it generally takes about six weeks to get a response. Rosow also noted that the last time the City had sought an opinion from the Attorney General's office,they were disappointed when the Attorney General declined comment based on the assertion that not enough facts were submitted. Rosow said it might be more prudent to reach a consensus on a proposed ordinance and then submit it for an opinion. Rosow said his office would also need to gather any available information on the money spent lobbying for an ordinance in Eden Prairie. Case said he was comfortable with submitting whatever ordinance the Council agrees on to the Attorney General for review. Luse asked how it would look to the people of Eden Prairie if the Council was unwilling to wait six weeks for an Attorney General's opinion before going forward in discussions on the ordinance. Mayor Tyra-Lukens suggested submitting the draft ordinance as it stands and waiting to see what sort of opinion the Attorney General returns. If the Attorney General raises no objections to the more restrictive version of the ordinance, the Council would then be assured that a less restrictive(compromise) ordinance would be acceptable. Tyra-Lukens pointed out that this would mean tabling discussion of an ordinance until at least the second meeting in August. Council agreed to direct the City Attorney to request an Attorney General's opinion. Tyra-Lukens asked Luse if he would be willing to discuss an ordinance if the Attorney General's opinion indicates there is no legal reason not to do so. Luse said he would be willing to discuss the ordinance at that point. IV. OTHER TOPICS Council Chamber V. OPEN FORUM (Scheduled participants, 6:30-6:50 p.m.) A. PROPOSED SMOKING ORDINANCE 1. Ken Rockler Rockler stated he does not live in Eden Prairie,but represents the Professional Bowlers Association. He referred to the recent court ruling on A4PAATs use of funds for lobbying for local smoking ordinances. He read a detailed list of lobbying activities by the American Cancer Society (with funding from NIPAAT) in Eden Prairie. He said that in light of the recent court ruling, spending money in this way was"verong and illegal." cw�:ril P,cr'�•;.c�!.fir�rt�—1itlr 2. 2110' Page 4 He said the smoking ordinance was brought to the Council by"Clean Air on the Prairie," a local group Rockler says is supported by the American Cancer Society. He asked why, if second-hand smoke is so harmful, did it take money from the American Cancer Society and A4PAAT to bring the issue before the Council. Rosow asked Rockler for documentation on the money spent by MPAAT for lobbying. Rockler said he would try to gather the information for Rosow. 2. Gary Chenen Gary Chenen, owner of the Outback Steakhouse, asked the Council again to consider the financial impacts a smoking ordinance would have on restaurant and bar owners in Eden Prairie. He said that although some sources discount negative economic impacts of smoking bans, several establishments in Duluth did report negative impacts after an ordinance was enacted. He said the Eden Prairie Chamber of Commerce is holding a meeting of restaurant owners on July 17 to discuss potential impacts of the proposed ordinance. Chenen asked the Council to consider how to make any ordinance fair to restaurant owners who have already spent much money providing ventilation systems and no smoking areas with the understanding these measures would be sufficient. 3. Clean Air on the Prairie (two speakers) No one from Clean Air on the Prairie was present to speak. B. PERRY FORSTER—RPBC WATERSHED REAPPOINTMENT Forster said his term on the Riley Purgatory Bluff Creek Watershed District Board is up at the end of July. He asked the Council to support him for another term on the Board. Forster noted that the Watershed District made a presentation to the Council on their activities last spring, and they would be happy to make a similar presentation for anyone who had missed it. Forster answered several questions from the Council on Watershed District activities. The Councilmembers praised Forster's work for the District and assured him that they would support him for another tern. VI. OPEN PODIUM (Unscheduled participants, 6:50-7:00 p.m.) VII. ADJOURNMENT