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City Council - 10/01/2002 - Workshop APPRON'ED ilMNiITES EDEN PRAIRIE CITY COUNCH,WORKSHOWFORUM TUESDAY, OCTOBER 1, 2002 CITY CENTER 4:00- 6:25 PM,HERITAGE ROOM H 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 4:15 p.m. II. APPROVAL OF AGENDA III. SECOND HAND-SMOKE Tyra-Lukens said there were several items to address before beginning discussion of a second-hand smoke ordinance. City Attorney Rosow would comment on communications he and the Council had received over the past few days, Councilmember Mosman would show a short video that explores both sides of the smoking issue, and Councilmember Luse would present some prepared comments. Rosow said several matters had come to his attention over the past few days indicating the level of pressure the Council is under. Rosow said in the spirit of openness he wanted to share these matters with the public. He distributed a document he prepared in response to several of these communications, to help the Council"act as they are supposed to," without undue pressure. • Rosow referenced a letter written to him that was critical of his representation of the City. Rosow said the letter indicated that his response to questions about MPAAT lobbying"only confirmed your limited understanding of the impropriety of MPAAT actions and the magnitude of the court's order." Rosow said he continues to believe he has represented the Council well and will not confine his opinions based on this letter. Councilmember Case asked the name of the letter writer. Rosow said the letter was from Thomas Briant, an Eden Prairie resident and attorney. Council- member Luse said he believes Briant may be a paid tobacco lobbyist. Case said he thought it vms important to for the press to know..,ho..rote the letter and their affiliations. • Rosow said City Manager Neal reported he attended a meeting Monday morning with Mayor Tyra-Lukens and a citizen regarding the smoking issue. Rosow said it was his understanding that this individual stated that he"knew things he did not want to have to make public." The person said he would not make these things public if the Council agreed to his version of a smoking ordinance. Rosow reiterated that he strongly believes the best way to proceed is in an open manner. Case asked the name of the citizen. Rosow said the person was Paul Wendorff. Case asked if Wendorff s statement constituted blackmail. Rosow said he had analyzed the incident only in the context of civil law, and was mainly concerned with advising the Council how best to proceed with their discussion of a smoking ordinance. • Rosow said a Milwaukee law firm, Whyte,Hirschboeck Dudek S.C., e-mailed to him a copy of a letter to Councilmember Luse. The letter said it had been brought to their attention that Luse had publicly questioned the legality of some American Cancer Society activities. The letter put Luse on notice to refrain from further public comment questioning ACS activities. Rosow said he had received the letter just that afternoon and hadn't had much time to look into it. He said he asked one of his partners to do some research and advise the Council on how such a letter might limit Councilmember Luse's ability to comment publicly on the smoking ordinance issue. Rosow said their research indicated that those in the Federal government have unqualified immunity with regard to public comments. On the other hand, the City Council has what Rosow termed"qualified"immunity for comments made within the context of Council meetings. The State extends conditional privilege to Council- members,which is only overridden in cases where malice,ill-will or wanton recklessness can be proven. Rosow said this gives the Councilmembers broad latitude in their comments. Rosow said in a democracy, the Council is one of the places where debate occurs, and this is as it should be. The second-hand smoking issue has been very contentious, and the public needs to know the Council has and is operating in the full light of public scrutiny. Councilmember Mosman said she would show a few minutes from a video of the 6:00 news in New York.City on August 1, 2002. Mosman said the video shows government and business working together for clean air. She said second-hand smoke is the only one of 16 top carcinogens that is not addressed by regulations. She said she considers what the Council is proposing as living up to a new standard that is essential for health,rather than"regulation." Mosman said the issue is not one of"freedoms"but rather one of a toxic inhalant that is making us sick. She said she is not"against"smokers,but actually considers them victims as well. She said Minnesota spends $1.6 billion on healthcare costs associated with smoking. The number of people dying from second-hand smoke is equal to three 747 jets going down each day with no survivors. If an ordinance saves one life,the Council would be remiss if they didn't do something. She hopes the Council is able to pass something concrete, even if it is small to begin with. Councilmember Luse read a statement he said he had distributed to the press and shared with the Mayor and City Manager earlier that day. Luse said the Council is five people, just like any other residents of Eden Prairie. Luse said he did not believe the Council should spend time or money on Wendorffs request for a task force to investigate its conduct. He felt NN'endorff was bringing politics into the discussion, seemed to have some sort of"weird conspiracy theory,"and was throwing around a lot of inaccurate innuendos.He said this behm for was not appropriate. He said it is apparent that Wendorff is against smoking regulation, and if this is the case he should just say so. Regarding the letter from the American Cancer Society's law firm, Luse said he always strives to "say it the way it is." He regrets if Isis Stark misunderstood anything he had said in recent months. He said he has been honest and up front all along with his concerns about MPAAT's lobbying activities. Although the Council has received criticism about"moving too fast"on an ordinance,Luse said he believes they have proceeded in a fair and reasonable manner that has included open debate. He said he feels it was a mistake to start the discussion with an all-inclusive, hypothetical ordinance. Luse said he would like to bring discussion on a smoking ban to a resolution at this meeting. He said he was proposing a total ban on smoking indoors. The bar portions of restaurants would be exempt from regulations until January 2004, giving them time to prepare for the changes. He recommended creation of a task force that would include the Chamber,residents, and business owners. This task force would develop a non-profit fund to promote Eden Prairie as a great place to live,work and do business. He would like to see$1 million raised to promote the positive aspects of smoke-free environments. Luse said he was wary of any compromises because it would be very hard to craft a fair and effective one. He emphasized that there is no "what's next" aspect to the issue. The City will not be banning Krispy Kreme donuts or other fast food. He said the Council supports Eden Prairie's businesses,which provide 50 percent of the City's tax base. Luse also proposed that the City apply to MPAAT for a$4 million to $6 million grant to help Eden Prairie residents and workers quit smoking. Luse said he is an appointed official, and as such he would like to stress that his fellow Councilmembers are a"bunch of good family people who just want to give back to the town." Mayor Tyra-Lukens said it sounds as if Luse and Mosman were proposing stricter regulations than those the Council had agreed to at the previous meeting. She asked for input from the other Councilmembers. Councilmember Butcher said that the issue is very complex,but everyone is concerned with public health. The question is how far the Council should go in regulating second-hand smoke. She said she still believes the City should regulate smoking in the areas it owns together with residents—City facilities and open spaces. She is not comfortable regulating businesses that are already following State laws. She recommended a best practices review panel of people with all different points of view. This panel would set goals and standards for voluntary compliance. Luse said he respects Butcher's opinion,that he also has put a lot of consideration into the personal choice and business components of the smoking discussion. He said he doesn't think a best practices panel is necessary,because the Council has had more than adequate input both from local residents as well as from around the country. He said he believes the majority of the Council wants to pass a smoking ban that will be effective but not hurt business. He doesn't believe the matter should be left to the"free market," and that any ordinance must have"meat to it." Butcher said she respects Luse's perspective,but there are different ways to do the right thing. She said this is about doing what the Council reasonably can do,which is why she wants a panel to explore options. Case said he agrees with about SO percent of what Luse said and even more so with Butcher. Case believes the best approach is to wrap the issue up in the positive,which he doesn't think is possible if the government begins regulating business. He said they all agreed that it comes down to a health issue. Case said he didn't feel the Council should go beyond the comfort level of the people. Case said he strongly believes a one-question survey would have indicated a majority approving of a smoking ban—but, one that doesn't hurt business. Case said that he feels there has been a shift in public opinion about the smoking debate over the past couple of weeks. People are saying they are tired of hearing about the issue. They are also commending the Council for the consensus they reached at the last meeting to ban smoking from publicly-owned facilities and pledging to support the cause. Case said it is important to remember it is an election year. All of the non-incumbent Council candidates have stated they are not in favor of smoking regulation. Even if the Council votes now to pass an ordinance with a likely 3-2 vote, the ordinance may well be overturned by a new Council in January. If this happens,no other cities will touch this issue for years to come. Case asked the Council to find a way to pass a"copyable" ordinance that the Council and the community could support and could serve as a model for other communities. He said restaurant owners are saying they want to improve air quality, and he believes it. Butcher said she believes a ban on smoking in all publicly owned places would be strong. Luse said he respectfully disagreed. Luse said,based on input he has received, for the Council not to pass a strong smoking ban would be worse than doing nothing at all. As a businessperson he does not believe the Council should have gone through all of this pain without something positive coming out of it. He said it would be important to prove that business will not be hurt by a smoking ordinance. He asked the City to earmark $100,000 by the end of the year to kick off an advertising campaign promoting smoke- free Eden Prairie. He said as a businessperson he would pledge the first$10,000. He challenged the Council to "celebrate Eden Prairie for all that it is." Case said his impression is that public opinion has polarized at about 50 percent for a ban and 50 percent against it. Luse said he believes a majority of residents favor a ban. Mayor Tyra-Lukens said before this Workshop it appeared that she and Councilmember Mosman were leaning toward heavier restrictions with Councilmember Case as a swing vote. Now it appears that Tyra-Lukens holds the swing vote. She said she had spent a tough two days thinking about the situation, and she would like to see a better outcome than a 3-2 vote. To clarify her position, she said it is necessary to "get personal." She said it is widely known that she believes that regulating second-hand smoke is a public health issue. She said she is not a political person, and that she has served as a Councilmember and Mayor as a service to the community. She said she is willing to sacrifice her position for the cause,but is not willing to sacrifice the cause. She is not convinced that passing an ordinance that would be overturned by a new Council is the right thing to do. She likes the idea of working together positively toward a common goal. T�Ta-Lukens said that while those who are in favor of an ordinance have been generally respectful. The opposition has behaved so disrespectfully she doesn't allow her teenage daughter to answer the phone in their home. She said one citizen has taken the issue to the newspapers with all kinds of innuendoes. It is her understanding these tactics are typical of groups who have opposed similar ordinances in other communities. She said her meeting with Paul Wendorff on Monday morning is an example of what is really going wrong with this issue. She said she doesn't believe passing an ordinance on a 3-2 votes will change the situation. She said she is okay with losing the race for Mayor if necessary,but she worries what will happen in January with a new Council. She has consequently gone from favoring strict regulations to wanting to promote a positive, consensus-building process. She would rather work toward getting voluntary compliance and have Eden Prairie be a leader to surrounding communities. Councilmember Case said he would still like to pass an ordinance banning smoking from City-owned facilities and properties. He said they can discuss the second part, developing guidelines and bringing community members into the process later. Mosman said that propaganda circulated in recent weeks has raised so much unfounded fear and concern that the Council has no choice but to consider backing up. Rosow said he wanted to clarify which portions of the discussion the Council wished to move on. He said he had drafted an ordinance to regulate smoking in publicly-owned places based on Council direction at the last meeting. The Council could chose to discuss this draft and put it on the Council meeting agenda for a vote. Ordinances require two readings and two votes, usually at separate Council meetings. If the Council chooses to do the first and second readings at the same meeting, a unanimous vote is required for approval. Case said he would like staff to be directed to prepare an ordinance and a resolution. He would also like to set a workshop date to discuss further steps. Luse asked if someone would clarify the consensus reached. Tyra-Lukens said they had reaffirmed what they had agreed on at the last meeting—to consider an ordinance banning smoking at City-owned facilities and a resolution asking the state to consider the issue. IV. OTHER TOPICS Council Chamber V. OPEN FORUM (Scheduled participants, 6:30-6:50 p.m.) A. STRONG SCHOOLS REFERENDUM Caroline Sweeny,with the Strong Schools volunteer group kicked off the presentation. She outlined the School District's need for funding. Acting Superintendent Dr. Melissa Krull explained the rationale behind the Strong Schools referendum theme. She said the district is receiving inadequate funding from the State and the operating levy($3 million per year for seven}Tears)would help bridge the shortfall. Executive Director of Business Services Patricia Magnuson also reviewed the financial situation and compared the amount spent per student in Eden Prairie to surrounding communities. She said Eden Prairie is the lowest spending school district in Hennepin County. School Board Director Carol Bomben asked the Council and community to support the referendum and vote"yes"on"November 5. VI. OPEN PODIUlbI (Unscheduled participants, 6:50-7:00 p.m.) Gary Diamond spoke on behalf of"Trails Without Rails", a citizen group opposing the building of LRT through Eden Prairie on the old railroad right-of-way(which is owned by Hennepin County). Diamond presented a Resolution the group is asking the Council to adopt. Doug Henke and Mike Hall also spoke against Hennepin County conducting a study of possible transit rail routes that might include the current LRT recreational trail in Eden Prairie. City Manager Neal said he would meet with Mr. Diamond before the next Council meeting to review ways in which"Trails Without Rails"can proceed with their requests. VII. ADJOURNMENT