BEAVERTON CITY COUNCIL
REGULAR MEETING
March 18, 2002
CALL TO ORDER:
The Regular Meeting of the Beaverton City Council was called to order by
Mayor Rob Drake in the Forrest C. Soth Council Chambers, 4755 SW
Griffith Drive, Beaverton, Oregon on Monday, March 18, 2002, at 6:40 p.m.
ROLL CALL:
Present were Mayor Drake, Couns. Fred Ruby, Evelyn Brzezinski, Dennis
Doyle, Forrest Soth, and Cathy Stanton. Also present were Chief of Staff
Linda Adlard, City Attorney Mark Pilliod, Assist. City Attorney William Kirby,
Finance Director Patrick O’Claire, Community Development Director Joe
Grillo, Engineering Director Tom Ramisch, Operations/ Maintenance
Director Gary Brentano, Library Director Ed House, Janet Young,
Economic Development Manager; Transportation Engineer Randy
Wooley, Utility Engineer David Winship, Engineer Mark Boguslawski,
Building Official Brad Roast, Police Captain Wes Ervin, City Recorder Sue
Nelson.
CITIZEN COMMUNICATION:
Henry Kane said he thought the contract for The Round was incomplete.
He said it should have a provision that the City would make no
representation of facts on the suitability of the site for the project and that
the lender(s) and developer would exercise due diligence to determine site
suitability. He felt the City should get an opinion from a law firm
specializing in securities, with a multi-million dollar liability policy, to say if
the contract fully protected the City. He said he did not want to see a
“PGE Park fiasco” happen in Beaverton. He said the City should be a
third party beneficiary and hold the lender responsible if something
happens. He concluded that he felt many unforeseen things could happen
to prevent the project and putting the contract in escrow would protect the
City.
COUNCIL ITEMS:
Coun. Soth reported on the National League of Cities Conference he
attended in Washington DC last weekend. He said his committee heard a
presentation on an upcoming senate bill to provide funding for water
infrastructure throughout the country. He said he gave a copy to Mr.
Winship as it might be applicable to the City. He said there were several
other interesting sessions, including one on recent Supreme Court
decisions affecting cities; he gave a copy of that information to Mr. Pilliod.
Coun. Stanton said she got a lot out of the conference; of special interest
were the different positions on the homeland security issues, how they
pertain to local governments and whether funding will be provided at the
local level. She said the high point of the trip was the Capitol steps.
STAFF ITEMS:
There were none.
PROCLAMATION:
Iranian New Year Celebration Day (March 20, 2002)
Mayor Drake noted there was a large Iranian population in Washington
County and it was a pleasure to honor their New Year.
CONSENT AGENDA:
Coun. Ruby MOVED, SECONDED by Coun. Stanton that the Consent
Agenda be approved as follows:
Minutes of the regular meetings of February 25, 2002, and March 4, 2002
Coun. Soth explained that AB 02058 and 02059 reflected actions taken by
the Tri-County Building Industry Services Board and Tri-County elected
officials to provide uniform procedures for establishing fees in the Tri-
County area. He said cities could set their own fees, but the procedures
used to establish the fees will be the same.
Coun. Stanton thanked staff for answering her questions.
Coun. Doyle (AB 02068) congratulated staff for continuing to push this
forward; he looked forward to the ASR Well No. 4 going up.
02058
Adopt Resolution and Authorize Implementation of Plumbing Permit Fee
Schedules for Medical Gas Piping (Res. No. 3655)
02059
Adopt Resolution and Authorize Implementation of Building and Plumbing
Permit Fee Schedules for Residential Fire Sprinkler Systems (Res. No.
3656)
02060
Liquor Licenses – Annual Renewals: Applebee’s; Chevy’s; China Bay;
Circle K (2); From Shanghai to Tokyo; Fuji Teriyaki; McCormick’s; Pasta
Place; Red Robin; Tara Thai House.
02061
Liquor License Renewal – Annual Renewal: Dolphin II
02062
Liquor License – Change of Ownership (Café Marina, Sambi,) and
Addition of Partners (Thai Angel Restaurant)
02063
Intergovernmental Agreement – Provision of Domestic Water Service
Between the City of Beaverton and the Tualatin Valley Water District
02064
VAR 2001-0007 – Dania Flagpole Variance
02065
Traffic Control Board Issues 472 through 475
Contract Review Board:
02066
Waiver of Sealed Bid – Purchase of One (1) Mobile Data Terminal From
an Existing Bid Award Through the City of Salem
02067
Consultant Contract Award – Engineering Services for Sanitary Sewer
Collection System Master Plan
02068
Consulting Contract Award – Hydrogeological and Engineering Services
for Groundwater Aquifer Storage and Recovery (ASR)
Question called on the motion. Couns. Doyle, Brzezinski, Soth, Stanton,
and Ruby voting Aye, motion CARRIED (5:0).
ACTION ITEM:
02069
Authorize Conveyance of City Property (the Round) in Accordance with
Modified Disposition and Development Agreement
RECESS:
Mayor Drake called a recess at 6:55 p.m.
RECONVENED:
The meeting was reconvened at 7:05 p.m.
WORK SESSION:
02070
A Draft Ordinance Relating To The Sale of Tobacco Products,
Establishing A Minimum Quantity Of Cigarettes Per Package And
Prohibiting Self-Service Tobacco Sales
Mayor Drake distributed to the Council a copy of a recent article from Time
Magazine “Puffing Up a Storm” about the increased access/exposure to
tobacco that young people were experiencing. He said Roy Dancer,
Washington County Tobacco Free Coalition (TFC), contacted him two
years ago about passing a Tobacco Free Ordinance for the work place in
Beaverton. At that time, the Mayor was concerned that if Beaverton
passed an ordinance and surrounding jurisdictions did not, Beaverton
businesses could be harmed. He continued that this session the State
Legislature passed an ordinance banning smoking in all work places,
which was now in effect. He said the TFC was working on limiting minors’
access to smoking. He said they had used Tualatin’s ordinance as a
model and worked with an attorney from the TFC, Mr. Kirby drafted an
ordinance tailored to meet Beaverton’s interests. He noted Mr. Kirby
would review the proposed ordinance and the representatives from the
TFC would speak on this issue.
William Kirby presented a briefing on the issue. He said the State did not
allow cities to regulate tobacco vending machines; cities were prohibited
from denying machines. He said states and cities could regulate tobacco,
but cities must be consistent with what the Federal and State
governments were trying to accomplish. He said the State’s goal was to
prevent youth access to tobacco; the goal of this ordinance would be to
reduce and limit youth access to tobacco. He said medical studies
showed that youth were targeted and influenced by tobacco advertising; if
youth access to tobacco could be restricted, there will be a reduction in
the number of young people who would start smoking. He said on March
8, 2002 the Center for Disease Control (CDC) reported that a nation-wide
study on in-store advertising and marketing techniques to sell tobacco,
found that marketing occurs within 92% of stores, with 34% of those
stores having self-serve tobacco. He said CDC recommended
eliminating or restricting self-service tobacco sales and focusing initial
efforts on stores most frequented by adolescents (convenience stores
and gas stations). He said the proposed ordinance would be consistent
with the CDC recommendation and would work with the City’s existing
ordinance, which would impose an employer/employee liability for selling
tobacco to a minor.
Kirby explained that the definitions in the ordinance were from an existing
ordinance. There were three new definitions: Cigarettes, Self-Service
Display, and Vendor-Assisted Tobacco Sales.
Coun. Stanton confirmed that the definition for cigarettes excluded cigars.
Kirby reviewed Sections 2 and 3. Section 2 would require that cigarettes
be sold in quantities of 20, which would prevent packaging of “kiddie
packets” (two-three cigarettes at a lower cost). State law prohibits sale of
“loosies”--a single cigarette. Section 3 would disallow self-service
displays of tobacco. He said all tobacco sales would be vendor-assisted
which would give the merchant the opportunity to check ID for proper age
and would deter theft as the tobacco would not displayed where it could be
easily accessed. He confirmed that tobacco vending machines were
exempt from City regulations because of State law (ORS 167.404).
Coun. Doyle asked if this would allow vending machines anywhere with
kiddie packs in them.
Kirby explained that the vending machines would have to be placed where
children would not have access, but there would be exceptions such as
hotels and motels.
Coun. Soth asked if the City was banning cigarette vending machines with
this ordinance.
Kirby explained this ordinance would not ban the machines or regulate
them. He said the cigarettes would be at the counter above the vendor, so
that the vendor would have to get the cigarettes and check the customer’s
ID before selling them.
Coun. Soth asked about the restriction on the number of cigarettes sold
(less than 20); was that an arbitrary restriction on interstate commerce.
Kirby said he did not think it was arbitrary in that it was meant to reduce
the likelihood that children will purchase cigarettes. He said regulations
that come out of the government’s police powers and that serve a
legitimate State purpose, such as reducing youth acquiring cigarettes,
would probably be upheld on a commerce case. He concluded many
cases similar to this had been upheld.
Coun. Stanton said she had been places where free cigarettes were
passed out; and asked if the ordinance would prohibit a company from
coming to the Taste of Beaverton and handing out free cigarettes.
Kirby explained that State law prohibited giving free samples to minors and
also prohibited a marketing plan that includes distributing free samples to
minors.
Kirby explained other exemptions. He said tobacco shops that do not
allow minors to enter are exempted. He said restaurants, bars, and
lounges were exempt to the extent that the OLCC prohibited entrance to
minors; children under the age of 18 cannot possess tobacco in Oregon.
Kirby said the TFC had an issue with restaurants that had lounges where
minors were not to enter.
Kirby said the TFC was concerned that minors can enter the area
because they would be in the restaurant and could access tobacco
products if not vendor-assisted. He said the Council might want to
discuss the policy merits with Washington County and the TFC. He said
Council had the authority to not extend the exemptions to restaurants,
bars, and lounges, but the legal issue was if the ordinance would be
consistent with what Council was trying to accomplish.
Coun. Stanton asked if a lounge was different than a bar or a tavern,
noting it was not defined in the ordinance.
Kirby explained that a lounge was an area in a restaurant where minors
were prohibited from entering.
Coun. Stanton noted the ordinance did not mention “pub.”
Kirby reviewed Section 4, the penalty section. He said the existing
ordinance imposed a $250.00 fine for violation; that would increase to
$300.00. He reviewed the standards on how violations would be
established. He said the penalty amount was consistent with State law.
Coun. Stanton asked if there were penalties for the employer as well as
the employee, since the section referred to “the person” who violates.
Kirby explained that “the person” was a broad term and could include the
corporation and employer to be cited. He said the City could also rely on
the existing ordinance to impose liability on the employer and/or the
employee depending on the circumstances of the offense.
Coun. Soth asked if any penalty would be attached to the purchaser.
Kirby explained it was illegal for a minor to possess tobacco; there was a
light penalty to educate them that they should not be smoking.
Kirby reviewed the non-retaliation provision that creates a legal right for
employees, job applicants, or customers. He said if they assisted or
participated in an investigation/proceeding/hearing regarding alleged
violation of this ordinance, and they were retaliated against, they would
have a cause of action against the employer for any damages. He said
court case had ruled that cities had the legal authority to enact this
whistle-blower legislation.
Coun. Soth asked which court would have jurisdiction in such a case.
Kirby replied it would by any circuit court of Washington County.
Kirby explained that Section 6 repealed the existing BC 5.08.525, which
explains how a violation will proceed to trial when there was an
enforcement action on the employer liability provision.
Kirby said in 1999, Senate Bill 20 was enacted which unified the violations
proceedings under State law. He said as a result, there was no need for
BC 5.08.525 and it should be repealed. He said Section 7 was the
standard clause.
Coun. Brzezinski asked how long business owners would have to comply
with this ordinance.
Kirby explained it would become effective 30 days after it was passed.
Coun. Brzezinski noted businesses would need to reconfigure their retail
space, and asked how long they would have to do that.
Mayor Drake noted that most retailers will get help from the tobacco
companies to do this; he thought 60-90 days would be reasonable, but
noted he did not discuss this with Kirby. He concluded that many were
doing it now to protect their inventory.
Coun. Stanton asked if there were any plans on how to enforce the
ordinance.
Kirby explained that the Council had the authority to determine how this
would be done, with provisions and notice to retailers and citizens as
desired.
Mayor Drake explained that the time between the work session and the
public hearing would be used to generate the notifications to businesses
and citizens and solicit input.
Coun. Soth suggested it be posted on the website and in the Your City
newsletter.
Roy Dancer, Chairman, Washington County Tobacco Free Coalition, and
Warden Minor, President/CEO American Lung Assoc, of Oregon provided
additional information to Council.
Minor thanked the Council for looking at ways to move the ordinance
forward. He said the purpose of youth access was to restrict minors’
access to tobacco products as a way to improve the health in the
community. He supported Kirby’s comments, noting those items “were
on their wish list.” He said cigarettes were most frequently shop lifted by
students, which the vendor-assisted regulation will help eliminate. He said
most stores had already restricted access to tobacco.
Minor said they would like to join in partnership with the City to help notify
retailers; they would be happy to send out the notices. He said they were
funded by Measure 44.
Minor spoke on the Reward and Reminder Program, a statewide program
focused on identifying stores that sell to under-age minors. He said
mostly gas-and-go stores and Ma-and-Pa stores sell to minors but the
vast majority of retailers were doing the responsible thing. He said he did
not know of any minor who had ever been prosecuted for possession. He
said that was how the State was dealing with HR 2828, the legislative
opinion on clean air/smoke free environments. He said education would
be used to deal with HR 2828 as well as minors in possession. He said
by dealing with where the offenses were occurring, they hoped to cut back
on the occurrences. He thanked the City for looking at this issue.
Coun. Stanton asked if the TFC would go after cigarette advertising.
Minor explained that the Supreme Court had upheld cigarette advertising
as a free speech issue. He said the TFC would not be doing anything on
this issue.
Mr. Dancer presented the TFC’s goals for 2002: (1) have all tobacco
vendors eliminate all self-service of tobacco products. He said studies
had shown that the majority of teenagers get their cigarettes by stealing
them; this would help reduce that. (2) Make employers and employees
liable for fines for selling tobacco products to minors. (3) Tobacco
companies are circumventing State law by packaging cigarettes
individually for sale with inducements of low cost and flavoring (Loosies).
He said TFC plans to meet with every jurisdiction to see if this can be
eliminated. He said in Washington County, 29% of the stores still offer
self-service tobacco products, with Cornelius and Aloha having the
highest number of self-service stores. He said of the 52 stores in
Beaverton, 28% still had self-service. He said last year, 401 stores in the
state sold to minors (16.9%); in Washington County, 23 stores sold to
minors (13.5%). He explained that minors sell to minors; if minors were
employed at a store or gas station, they could sell to other minors.
Coun. Soth confirmed that a 16-year-old employee behind a counter or
working at a gas station was allowed to sell tobacco products.
Dancer explained that the State was not enforcing the possession clause
of the law in these cases. He said 37% of minors (ages 14-17) who
smoked bought tobacco themselves in the last 30 days in Oregon. He
said this was problem that the TFC was trying to confront.
Minor explained that youth know the places where they can get tobacco;
this ordinance will help reduce that.
Dancer reported that WINCO Foods conducted an audit of its tobacco
products and found that 58% of its stock was shrinking due to theft (prior
to when they put their cigarettes in vendor-assisted areas). He said he
believed that juveniles committed 80% of those thefts.
Dancer noted that even though WINCO was receiving slotting fees from
tobacco companies for placing their products in convenient locations,
WINCO could not justify such high losses and discontinued the slotting
fee.
Minor explained that the slotting fees were used because there was such
a high profit in these sales.
Coun. Stanton stated that slotting by tobacco companies was pandering;
they make it cost effective to continue to allow minors to access tobacco.
Dancer reported that 3,000 people under the age of 18 start smoking
every day. He said 1/3 would die from tobacco related disease. He said
the greatest non-compliance was that the vendor looked at the ID and did
not note the age of the youth.
Coun. Doyle said he appreciated the offer to help distribute the
information.
Coun. Stanton asked Kirby if she could call the Code Enforcement if she
saw a violation.
Kirby explained that both the Police and Code Enforcement had the
authority to issue a citation.
Mayor Drake noted that Code Enforcement was not setup for instant
response; it would be better to go through the non-emergency Police
dispatch.
Minor explained that most of the funding available from Measure 11 was
for education purposes; enforcement would be of an educational nature.
He said they were trying to change the norms of the community. He said
even with HB 2828, there would be no “tobacco police” in the State.
Mayor Drake thanked Mr. Dancer and Mr. Minor for participating.
RECESS:
Mayor Drake called for a recess at 8:25 p.m.
RECONVENE:
Mayor Drake reconvened the meeting 8:30 p.m.
ORDINANCES:
Second Reading and Passage:
Mark Pilliod, City Attorney, read the following ordinances for the second
reading by title only:
02056
An Ordinance Vacating a Public Right-of-Way Along Properties Owned by
Tri-Met and Tualatin Hills Nature Park; SV 2001-0001 (Ordinance No.
4197)
02057
An Ordinance Vacating a Public Right-of-Way Along Properties Owned by
Tri-Met; SV 2001-0002 (Ordinance No. 4198)
Coun. Soth MOVED, SECONDED by Coun. Doyle that the ordinances
embodied in AB02056 and AB02057 now pass. Roll call vote. Couns.
Brzezinski, Ruby, Soth, Stanton, and Doyle voting AYE, the MOTION
CARRIED unanimously (5:0)
EXECUTIVE SESSION:
Coun. Soth MOVED, SECONDED by Coun. Doyle that the Council move
into executive session in accordance with ORS 192.660 (1) (h) to discuss
the legal rights and duties of the governing body with regard to litigation or
litigation likely to be filed and in accordance with ORS 192.660 (1) (e) to
deliberate with persons designated by the governing body to negotiate real
property transactions. Couns. Brzezinski, Doyle, Soth, Ruby, and Stanton
voting AYE, the motion CARRIED unanimously. (5:0)
Executive session convened 8:30 p.m.
Regular session reconvened at 8:40 p.m.
02069
Authorize Conveyance of City Property (the Round) in Accordance with
Modified Disposition and Development Agreement
Coun. Soth MOVED, SECONDED by Coun. Doyle, that the Council
approve the noted action on Agenda Bill 02069, to “Authorize the Mayor to
execute a deed conveying title to the property, commonly known as “The
Round at Beaverton Central” in substantially the form described in the
DDA and to take necessary and proper steps to close the transaction in
accordance with the DDA. Council approves the revised Schedule of
Performance and Scope of Development, as well as those issues more
fully discussed in the attached memo. Council also approves the
conditions precedent to closing the transaction, as recommended by
staff.”
Coun. Brzezinski thanked Ms. Adlard and Mr. Pilliod for their time and
efforts on this project. She said it was a large project and their work was
appreciated.
Coun. Soth said that with all the frustrations over the years and dealing
with a developer who was not familiar with the State of Oregon, with the
diligence of staff this outcome tells the citizens of Beaverton “Folks, we
are ready to go!” He said in the words of John Wayne, “HO!”
Question on the motion: Couns. Ruby, Soth, Brzezinski, Stanton, and
Doyle voting AYE, the motion CARRIED unanimously (5:0).
ADJOURNMENT:
There being no further business to come before the Council at this time,
the meeting was adjourned at 8:45 p.m.
_____________________________
Sue Nelson, City Recorder
APPROVAL:
Approved this 6th day of May 2002
_____________________________
Rob Drake, Mayor