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HomeMy WebLinkAboutMinutesPROCEEDINGS OF THE COMMON COUNCIL CITY OF OSHKOSH, WISCONSIN OlHKOIH ON THE WATER REGULAR MEETING held Tuesday, June 23, 2009 at 6:00 p.m. in the Council Chambers, City Hall. Mayor Esslinger presided. PRESENT: Council Members Harold Buchholz, Tony Palmeri, Jessica King, Bob Poeschl, Burk Tower, Dennis McHugh and Mayor Esslinger ALSO PRESENT: Mark Rohloff, City Manager, Pamela Ubrig, City Clerk, Lynn Lorenson, City Attorney, and Dave Patek, Director of Public Works Council Member Buchholz read the Invocation. Mr. Rohloff introduced Brad Rokus the Water Filtration Plant superintendent. 2008 AUDIT PRESENTATION (SCHENCK BUSINESS SOLUTIONS) Ron Widell, Certified Public Accountant that performed the 2008 audit for the City, stated that the financial position was listed as fairly clean and that was were municipalities wanted to be. He explained what each section of the report entailed. He stated that the City staff was organized and cooperative. Council Member Buchholz questioned the meaning of the AA3 rating and how it compared to other Cities. Mr. Widell stated that the higher the rating allowed for lower interest when borrowing. Mr. Rohloff explained that AA rating included three different levels; AA1, AA2 and AA3. He stated that AA1 was the highest and AA3 was common for a community the size of Oshkosh. He explained that it was rated on the City's ability to repay debt. He stated that the City was at 60% capacity for borrowing funds. Council Member Buchholz questioned why there was no suggestions given in the audit as to how the City could improve or areas of concern. Mr. Widell stated that the City had no major concerns or issues. Council Member Buchholz questioned the employment benefit plan and if it was typical to be funded by employers and not by the employee. Mr. Widell explained that it varied among cities. He stated that most municipalities were 1 employee funded and had a subsidy rate. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Deputy Mayor Palmeri questioned the City's stability due to the decline in building permits since 2003. Mr. Widell stated that the economical impact was hit world wide and did not pertain only to the City. Deputy Mayor Palmeri stated that a five year decline seemed like a massive amount. Mr. Widell stated that it did seem massive; however, he had no data to compare to. Deputy Mayor Palmeri stated that audits as a whole seemed to provide more positives then what was reality. Mr. Widell explained that audits were a historical document and that the budget numbers were stable and consistent from year to year. Deputy Mayor Palmeri stated that the estimated growth for the City was 450 people per year and to be over 75,000 in the year 2025. He stated that from 2007 to 2008 the City grew by 110 persons. He questioned if the population growth was reason for concern regarding the economy of the region. Mr. Widell explained that it would depend upon reports from other areas. Mr. Rohloff explained that the growth was expected to slow down due to the economy. He stated that in the late 1990's and early 2000's it had been growing by approximately 400 people per year. Deputy Mayor Palmeri questioned if the population number included UWO students. Mr. Rohloff stated that it included the college students as well as the prisoners. Deputy Mayor Palmeri stated that the manufacturing number was inflated. Mr. Rohloff explained that the numbers were statistical information provided from the Chamber and from the Work Force Development. Deputy Mayor Palmeri encouraged the City Manager to gather more accurate information. He explained that the manufacturing market had taken a hit since 1998 and yet the analysis showed a growth in 2008. He stated that the inflation to manufacturing was hard to believe since the Library laid off 7 full -time employees. Mayor Esslinger questioned a statement that had been made implying that if funds from the general funds were used it would affect the bond rating. 2 Peggy Steeno, Finance Director, explained that there were different reasons for bond ratings to change depending upon the use for the funds. She stated that she had contacted the bond rating company and a one -time use would not affect the rating. She explained that if there was PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 a continual use of general funds for operations that would not be acceptable. She stated that the City needed a fund balance policy. Mayor Esslinger questioned how many cents on the dollar the City paid off per year for debt. Mrs. Steeno stated that the City had been paying off as much as what was borrowed prior to the issues of the storm water. Council Member Buchholz questioned the increase in 2007 and the decrease in 2008 for the general fund balance. Mrs. Steeno explained that in 2007 there had been funds that were not used and in 2008 there was a shortage of $327,000 that was used for the Convention Centre. Council Member Buchholz urged the City Manager to put forth more effort for accurate information. Mr. Rohloff stated that the information was provided from other sources and he had not been aware of inaccuracies. He stated that the official information was gathered from the employers. PUBLIC HEARINGS Resolution 09 -226 Approve Annual City License O'Brian's, 686 N. Main Street MOTION: ADOPT (Palmeri; second, McHugh) CARRIED: Ayes (5) Buchholz, King, Poeschl, McHugh, Mayor Esslinger; Noes (2) Palmeri, Tower Mayor Esslinger explained that the purpose of the meeting was to conduct a hearing per Section 125.12 of the Wisconsin Statutes on the decision to renew or not renew the license of Lewtag, LLC, Agent James Ostertag for the property commonly known as O'Brian's for premises located at 686 North Main Street. He stated that the procedure for the hearing was as follows; the Police Chief would present evidence in support of his determination to recommend that the Council not renew the license for Lewtag, LLC. He stated that any witnesses who were presenting evidence to the Council would be sworn in by the City Clerk and the representative of the licensee would be allowed to question the Chief and /or any witnesses that testify. He explained that the Council would then be given the opportunity to ask any questions clarifying any information that has been presented and the representative of the licensee will then be given an opportunity to present any evidence that he /she wishes the Council to consider in relation to the decision whether or not to renew the license. He stated that the licensee or any witnesses that he /she wishes to give testimony before the Council on this issue would be sworn by the City Clerk. He explained that after the licensee had been given the opportunity to present any information he /she wishes the Council to consider, the Chief and /or his representative would be allowed to ask questions of those witnesses and Council Members would then be permitted to ask questions. He explained that thereafter, the Chief and /or his representative and the Licensee would be given a final opportunity to make a statement to the Council. He stated that the hearing was then closed and the issue would be discussed and PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 voted on by the Council and the Council would base its decisions only on the evidence it heard at the hearing. Introduction of Attorneys: Tony Renning from Davis and Kuelthau on behalf of the Chief of Police; Dan Posanski, Dempsey Law Firm representing the license holder James Ostertag from Lewtag, LLC. Attorney Posanski stated that Mr. Ostertag did not have reasonable notice for response. He explained that state law required a three day notice and the first day served did not count. He stated that the testimony of Chief Greuel should not be heard by the Council. Mayor Esslinger questioned if it was Attorney Posanski's wish for a layover. Attorney Posanski stated that he was not sure that was possible. Ms. Lorenson explained that the 3 to10 days notice was regarding a suspension and the certificate of service was on June 18 Attorney Renning explained that the State Statute 125 provided certain requirement for providing notice, related to suspension or revocation Mayor Esslinger questioned if it was Attorney Renning's legal opinion to proceed with the hearing. Attorney Renning stated that he would proceed with the hearing. Ms. Lorenson stated that Attorney Posanski was implying that the City had not provided enough notice for due process. She stated that another option would be to reschedule the hearing which would require a special meeting as the license expired prior to the next Council date. The City Clerk swore in Chief Greuel. Attorney Renning stated that the Statute allowed Council to renew or not to renew the license. He explained that one point for non renewal was the licensee kept and maintained a disorderly, indecent or improper house. He stated that the basis for Chief Greuel's recommendation was the high percentage of call volume and the violations discovered at the premises on March 26, 2009 by the Oshkosh Police Department and the Department of Revenue. M Attorney Renning questioned if it was an accurate statement that Chief Greuel recommended non renewal of the license. Chief Greuel stated that it was his recommendation. Attorney Renning questioned if O'Brian's was aware of Chief Greuel's decision. Chief Greuel stated that that was correct. Attorney Renning explained that the basis for the decision was due to the high volume of calls and if Chief Greuel would explain those calls. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Chief Greuel provided documents regarding the number of calls or incidents and a summary of the types of calls. He stated that from July 1, 2008 through June 22, 2009 there had been 92 calls for service. He explained that the color coding was how the incidents were reported; 12% from the staff at O'Brian's; 27% were officer observed and 61 were reported by a third party. He stated that not all incidents had been included and that officers described the business as a problem due to significant injuries as well as other issues that had happened at the establishment. He explained that officers in plainclothes as well as in uniform had visited and reviewed the issues that happened at O'Brian's. He explained that there had been 71 alcohol violations where Mr. Ostertag was selling a lesser brand of alcohol for the higher brand cost by refilling bottles. He explained that alcohol and cigarettes were not being purchased from distributers but from local retail. He explained that there were illegal gambling machines and lottery tickets that were confiscated. He stated that in 2008 there had been 138 incidents relating to alcohol and battery complaints. He stated that there had been an increase in calls and a pattern that patrons were being over served. He stated that there had been two arrests for serving underage and injuries from fights. He explained that prior to the meeting in November there had been a number of contacts with the people running the establishment and with Mr. Ostertag and his son to identify issues of concern and means to mitigate those issues. He explained that he had a meeting with Mr. Ostertag regarding the abatement plan. He explained that the bartenders and the bouncers were drinking and intoxicated themselves which created an environment of ignorance as to what was going on. He stated that drink specials were, all you could drink for $25 or $30 which led to over serving. He stated that the music was aggressive and disturbing. He explained that problem people in the community had a tendency to migrate to that tavern. He explained that officers were met with lack of cooperation and Mr. Ostertag did not want to implement strategies that had been suggested. He explained that from the first meeting in November to the formal meeting two measures were taken; a scanning machine had been purchased and plastic glasses were being used. He stated that it had been suggested to increase the bouncers to four and monitor all facilities including the parking lot. He explained that the officers were thereto help and would train the staff how to check for false IDs and how to tell when patrons were intoxicated. He stated that a request to change the type of music and turn the volume down was made. He explained that Oshkosh Police Department would continue to monitor both in uniform and plain clothes with a zero tolerance for violating codes and consequence for not responding would lead to revocation or non renewal of license. He stated that the police department had an obligation for public safety and he was confident that the issues would not change. He explained that the Police Department had met the burden of showing disorderly behavior and that the obligation of a licensee had not been met. Attorney Renning questioned why O'Brian's and not other taverns with a higher number of calls for incidences. Chief Greuel explained that other taverns were in various stages of an abatement process, two taverns were in an active abatement process. He stated that Molly's had shown a level of cooperation and success and the police would continue to visit. He stated that the Rail was in an active abatement policy since January and had a formal abatement meeting scheduled. He stated that the Rail had lighting installed in the parking lot at the request of the police department. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Attorney Posanski questioned if there was written documentation regarding the loss of license if Mr. Ostertag did not follow through the process presented to him. Chief Greuel stated that he submitted papers regarding the consequence at the December 11 meeting. Attorney Posanski questioned if there had been anything else in writing regarding the consequences. Chief Greuel stated nothing other than what was served on June 18 Attorney Posanski questioned why nothing more was provided to relate to due process. Chief Greuel explained that Mr. Ostertag was aware based on the abatement meeting and that he had been adequately advised. Attorney Posanski stated that Council should not consider the criminal charges from March as there was no evidence and they were pending allegations. He questioned how often Chief Greuel was on the premises of O'Brian's. Chief Greuel stated that he was never at the establishment. Attorney Posanski questioned if the officers were present for testimony. Chief Greuel stated that they were not. Attorney Posanski questioned if Chief Greuel had based his testimony upon what the officers had relayed to him. Chief Greuel stated that that was correct, in addition to the 100 plus reports. Attorney Posanski explained that he had an open records request and had requested Chief Greuel to flag the twelve most important incidents. He stated that one report was regarding a patron outside of O'Brian's. Chief Greuel explained that intoxicated persons had been seen leaving O'Brian's. Attorney Posanski questioned if all of the alcohol was consumed at O'Brian's and or at another tavern. Chief Greuel stated that he could not be sure. R Attorney Posanski questioned if an employee called police for help when there was a fight in the bar. Chief Greuel stated that was correct. Attorney Posanski stated that another of the twelve important incidents was a man passed out in the parking lot and questioned if that was correct. Chief Greuel explained that it was on Mr. Ostertag's property. Attorney Posanski questioned if another was an altercation in the parking lot. Chief Greuel stated that was correct. Attorney Posanski explained that another incident was a patron with an alleged gun and questioned if there was a gun. Chief Greuel stated that there was no gun. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Attorney Posanski explained that a patron being slapped was reported from a residence and no witness in the bar to the slapping and questioned if that was correct. Chief Greuel stated that that was correct. Attorney Posanski explained that another incident was of a drink being thrown in the face and two girls fighting. Chief Greuel stated that was correct. Attorney Posanski explained that an employee of Mr. Ostertag had called the police when a woman that was cut off refused to leave the premises and became disorderly. He questioned if there was a warrant for that patron. Chief Greuel stated that was correct and that was a successful instant and there was a warrant for that individual. Attorney Posanski explained that a male had brought another male to O'Brian's after he was found throwing up and an employee called the police for assistance. Chief Greuel stated that was correct although there was more to the story than that. Attorney Posanski stated that these were listed as the 12 most important incidences provided. Chief Greuel clarified the statement by stating that these were 12 among 92. He explained that these were snapshots of the types of incidents that occurred. Attorney Posanski questioned if there were reports of patrons falling off of their stools. Chief Greuel stated that he needed to read the reports. He explained that those incidents were observations that were made by officers. Attorney Posanski questioned if breathalyzers were given to patrons that appeared to be over served. Chief Greuel stated that no breathalyzers had been given. Attorney Posanski questioned how the officers knew the patrons were intoxicated. Chief Greuel explained that based on the officers training and experience they were able to identify patrons that were over served and intoxicated. He explained that there was not a request for a complete listing of incidences, a CAD report was requested and that's what was provided. 7 Attorney Posanski stated that he had requested an open records request and that he did not know what a CAD report was. He explained that with a two -day notice to represent his client he had requested all records be provided and was provided with the twelve most important incidents, most of them occurred outside the premises. Chief Greuel explained that the information was not accurate of what was requested today. He stated that a request for copies of reports was made and he was provided with all of the documents presented before Council. Attorney Posanski questioned how many underage citations had been issued at O'Brian's. Chief Greuel stated that there were two citations given. Attorney Posanski questioned if the number of 300 to 400 underage citations given at Country USA was correct. Chief Greuel explained that his office was not involved with those arrests. He stated that the police department was involved with traffic control. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Attorney Posanski questioned if the City issued them a liquor license. Chief Greuel stated that they did not have the authority do so. Attorney Posanski stated that Wingers had 21 arrests for underage. Chief Greuel stated that they were on the list of abatement facilities. Attorney Posanski questioned if it was the patrons or the violations that the Chief did not agree with. Chief Greuel explained that it was not a matter of what he liked; it was an issue of disorderly behavior and circumstances that required numerous incident reports. He stated that it had nothing to do with his personal feelings. Attorney Posanski questioned if Chief Greuel had a problem with the business plan and why. Chief Greuel explained that the business plan was flawed due to the issues outlined. Attorney Posanski questioned if the business plan was flawed due to drinking. Chief Greuel stated that that was not what was stated. Attorney Posanski stated that earlier Chief Greuel had stated that there were no dress codes posted or enforced. Chief Greuel explained that initially it was the police departments' recommendation to develop a dress code and to enforce it. He stated that they were aware of a dress code and that officers said the signage was visible. Attorney Posanski questioned if there were other taverns within the City that had a dress code. Chief Greuel stated that he did not frequent taverns; however, the officers would know. Attorney Posanski stated that it was odd patrons were not allowed to wear a flat brimmed hat. He questioned if Chief Greuel thought it was odd. Chief Greuel stated that it depended upon the observation of the cliental. He explained that there was recognition of clothing that was inappropriate. Attorney Posanski questioned if Chief Greuel had knowledge that Mr. Ostertag had implemented procedures to help his business. Chief Greuel stated that there had been no reduction in calls. Attorney Posanski questioned if there was a point system or benchmarks of some kind or if it was subjective determination. Chief Greuel stated that there was no point system. He explained that there were alternate options under the abatement ordinance. Attorney Posanski stated that he had spoken with the Tavern League and they stated that most municipalities had a point system program. Chief Greuel stated that he was not surprised. He explained that at a Chief of Police conference half of the Chiefs had a point system. Attorney Posanski explained that it was unfair to Mr. Ostertag to know how well he was doing if there was nothing presented to him to gauge by. Chief Greuel explained that there had been frequent interaction with Mr. Ostertag and that there had been positive feedback provided and notations of what was not working. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Attorney Posanski questioned if there had been any action taken against Wal -Mart due to the volume of high calls there. Chief Greuel stated that there was nothing formally taken. He explained that those incidents were good work of the loss prevention person regarding retail theft. He stated that the police department had strong working relationship with them. Attorney Posanski questioned action against Pick N Save due to 69 calls reported. Chief Greuel stated that nothing formal as most of those calls were with the loss prevention person dealing with retail theft. Attorney Posanski questioned if Mr. Ostertag was treated fairly since his calls were less than those two businesses. Chief Greuel stated that it was comparing apples to oranges. He explained that there were no calls for significant injuries or disorderly behavior that came directly from the responsibility of the premises. Attorney Posanski questioned if there were any recordings or officers to testify that the music was offensive. Chief Greuel stated that there was not. Attorney Posanski questioned if any drug use was listed in the twelve most important incidences. Chief Greuel stated that they were not of the 12 highlighted incidents list in exhibit one. Attorney Posanski questioned if they were not important enough for the 12 most important ones that were provided. Chief Greuel stated that they were not part of the ones highlighted and flagged. Attorney Posanski questioned the type of clientele at O'Brian's and if it was typical of other taverns. Chief Greuel stated that he could not make that comparison. He explained that the four or five taverns within that quarter of a block did not have the types of problems that 9 O'Brian's had. He stated that other businesses were disturbed by the activity and that there needed to be a presence of officers. Council Member McHugh stated that the neighborhood had problems and that the people would go to another tavern if O'Brian's license was not renewed. Chief Greuel stated that he would not be able to make that judgment. He explained that the other taverns were not experiencing the same problems. He stated that it was the environment and atmosphere inside that instigated problems. He explained that Oshkosh was a safe city and that he was proud of the high percentage rate of arrests and the accountability rate. Deputy Mayor Palmeri questioned the demeanor of the owner regarding the abatement process. Chief Greuel explained that at the November meeting they were not cooperative and at the second meeting he was left with the judgment that nothing would change. Deputy Mayor Palmeri questioned why there was not a request for revocation of the license. Chief Greuel explained that he wanted to allow an opportunity to be successful. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Deputy Mayor Palmeri questioned if the conclusion was that the problems were increasing and not decreasing. Chief Greuel stated that that was correct. Deputy Mayor Palmeri stated that a revocation of the license should have been requested rather than a non renewal. Chief Greuel explained that it was appropriate to wait due to the time period after the inspection and the review in late April. Deputy Mayor Palmeri stated that the January 25, 2009 incident regarding the bouncer fight, sounded as if the bouncer was trying to control the situation. Chief Greuel explained that there was an attempt to refuse entry; however, the video relayed the first strike was initiated by the bouncer with a felony charge. Deputy Mayor Palmeri questioned if there was evidence of any DUI's that resulted from being served at O'Brian's. Chief Greuel explained that it was not part of the information gathered. Council Member McHugh questioned if the third party calls were duplicated due to different people calling in the same incident. Chief Greuel stated that the incidents were not inflated due to the number of calls as each incident was listed with one call regardless of how many calls had come in. Council Member King questioned if the summary was taken from the long form or the short form. Chief Greuel explained that not all were verbatim, that it was a brief summary. Council Member King questioned if an acknowledgment of exhibit four was signed. Chief Greuel stated that there was nothing signed. Council Member Poeschl questioned calls relating to the abatement process. Chief Greuel 10 stated that there had been interaction with offers prior to the November meeting and the abatement became formal in December. Council Member Poeschl questioned if there were problems in the neighborhood would there be as much leniency. Chief Greuel stated that it depended on the problem or the monthly reports that would help to identify issues earlier. Council Member Poeschl questioned if there was communication between the police officers and the owners after the December 11 meeting. Chief Greuel stated that there had been communication as the police had offered assistance and there was regular interaction between officers and the owners. Council Member King questioned who prepared the document and sent it to Mr. Ostertag. Chief Greuel stated that he had created the document and it was hand delivered. Mayor Esslinger questioned the determination as to who was responsible for altercations and if O'Brian's did a good job informing the police department of problems. Chief Greuel explained that the employees did not do a good job of informing the police department and that the determination as to the responsibility would be stated after investigating if the patron had been over served and if that contributed to the issue. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Mayor Esslinger questioned if some incidents showed the staff tried to break up fights. Chief Greuel stated that at times they showed interest and other times they were not interested. Mayor Esslinger stated that since December 11 O'Brian's had an average of four incidents per month and questioned if that was a high number of calls. Chief Greuel stated that the number was a high number of calls. He explained that O'Brian's was number one on the list of calls and the other five taverns that were being watched did not come close to that many calls. Mayor Esslinger questioned if the Chief would be allowed to revoke the license at anytime if granted tonight. Chief Greuel stated that he would be allowed. Ms. Lorenson explained that if granted tonight the Chief would be allowed to recommend revocation or non renewal with additional basis for his decision. Mayor Esslinger questioned the additional basis. Ms. Lorenson explained that there needed to be additional basis, more than what was provided tonight for change of opinion. She stated that the license, if granted tonight, would be from July 1, 2009 to June 30, 2010. Chief Greuel explained that additional basis would be the continuation of call for service and additional victimization. Council Member Buchholz questioned the 59 occurrences and if they were different from the 22. Chief Greuel explained that there had been 59 incidents in 2009 and more than 22 since the abatement process as all had not been reported. 11 Council Member King questioned what disposition code one and two were. Chief Greuel explained that it was used internally to see how the code was cleared. Attorney Renning explained that Chief Greuel was the records custodian for the officers and that he was respectful to Council not to swear in each officer and have them provide testimony. The City Clerk swore in Mr. Ostertag. Attorney Posanski explained that Mr. Ostertag had little notice to prepare for this case, as he received the notice to attend the meeting two days prior to this evening. He stated that he had not seen evidence to support Chief Greuel's suggestion to not renew the license. He explained that if there was no record of incidents of patrons falling off of stools then it was speculation and should not be used to determine if the license should be renewed or not. He questioned how long the business of Lewtag LLC had existed and if he was the sole owner. Mr. Ostertag stated that he had been in business for 6.5 years and he was the sole owner. Attorney Posanski questioned the location of the establishment and if there were other bars within that area and how many. Mr. Ostertag stated that the location of the bar was on the corner of Main Street and Irving Avenue. He stated that there are 8 other bars within a block from him. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Attorney Posanski questioned the square footage of the bar. Mr. Ostertag stated that it was 6,000 square feet. Attorney Posanski questioned if his establishment was larger or smaller compared to the other bars. He questioned if he was one of the largest bars in the area. Mr. Ostertag stated that it was larger and that he was one of the largest bars. Attorney Posanski questioned if he recalled the abatement plan and if Chief Greuel had been present all of the meetings. Mr. Ostertag stated that he did recall the meeting regarding the abatement plan. He explained that to his knowledge he was not; however, he could not recall for sure. Attorney Posanski questioned if he recollected the abatement plan. Mr. Ostertag stated that he had recalled the abatement plan from the November meeting. Attorney Posanski questioned if he was receptive to the abatement plan. Mr. Ostertag explained that he would do what he could to work the police. Attorney Posanski questioned what things he had done in response to the abatement plan. Mr. Ostertag explained that all bartenders needed to be licensed, bouncers were on duty, and added more cameras. 12 Attorney Posanski questioned if the camera were expensive. Mr. Ostertag stated that the cost was $2,000 for each unit and since the meeting the ones he added were a couple of colored cameras. Attorney Posanski stated that cameras were added by the door at the request of the Police Chief for identification reasons. Mr. Ostertag stated that that was correct. Attorney Posanski questioned if the bouncers carried lasers. Mr. Ostertag explained that the bouncers and the bartenders had one. Attorney Posanski questioned if the numbers of bouncers on duty had changed since November of 2008. Mr. Ostertag stated that he had more bouncers on duty and some on stand -by. Attorney Posanski questioned what on -call bouncers had meant. Mr. Ostertag explained that if it got busier they would call in additional bouncers. Attorney Posanski questioned if the types of music was changed due to the request from the Chief. Mr. Ostertag stated that they agreed not to play hard rap. Attorney Posanski questioned if the purchase of a scanning machine was due to a request from the Chief. Mr. Ostertag stated that the scanning machine was purchased prior to the request. He stated that the machine cost $2,000 and would scan identification cards and alert if it was false or invalid. He explained that it helped the police to identify a person with a false ID. He stated that he has a sign that reads; no out of state IDs. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Attorney Posanski questioned if there were other signs at the door and what they pertained to. Mr. Ostertag explained that he posted ordinances regarding public drinking and public urination. Attorney Posanski questioned if the Chief had requested a change be made to the drink specials and the business plan and if he had made the changes. Mr. Ostertag explained that rather than an all you can drink special, he went to a rail and tap beer happy hour. Attorney Posanski questioned if the drink specials were consistent with other bars in the City. Mr. Ostertag stated that he tried to compete with others. Attorney Posanski questioned if the employees were trained regarding law issues. Mr. Ostertag explained that he made a policy that the bartenders and bouncers were not allowed to drink. Attorney Posanski questioned if the parking lot was the parking lot for the 8 bars within that area. Mr. Ostertag stated that it was one of the bigger lots in the area. Attorney Posanski questioned if patrons that went to other establishments parked in his lot. Mr. Ostertag explained that his parking lot would be full and have one patron in his 13 establishment. Attorney Posanski questioned if incidents could happen from patrons drinking at other bars. Mr. Ostertag stated that it happened. Attorney Posanski questioned if there was a loan on the property. Mr. Ostertag stated that was a loan. Attorney Posanski questioned if personal assets were collateral for that loan. Mr. Ostertag stated that his personal assets were held as collateral. Attorney Posanski questioned if the denial of the liquor license would have an adverse effect on him personally. Mr. Ostertag stated that it would. Attorney Posanski questioned if he had another job. Mr. Ostertag stated he did not. Attorney Posanski questioned the number of employees. Mr. Ostertag explained that he had 15 to 20 part -time employees. Attorney Posanski questioned if his son was an employee and had a differentjob. Mr. Ostertag explained his son was an employee and did not have another job. Attorney Renning questioned if he received exhibit four, the notice regarding the consequence for not following the abatement plan. Mr. Ostertag explained that he received it; however, he did not read it thoroughly. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Attorney Renning questioned when it was implemented that all bartenders be required to have a valid operator's license. Mr. Ostertag stated that it was implemented approximately four or five months ago. Attorney Renning stated that it was after the meeting with the Chief. Mr. Ostertag explained that if they were not licensed, they were not held responsible. Attorney Renning questioned if there were unlicensed bartenders currently working. Mr. Ostertag stated no. Attorney Renning questioned the number of bouncers employed. Mr. Ostertag explained that he had a list of five to eight on a rotating call list. Attorney Renning questioned how many on site during a particular evening. Mr. Ostertag explained that on slow nights the bartenders were expected to check IDs and on busy nights two bouncers and then others on stand -by if needed. Attorney Renning questioned how bouncers were on duty during a particular night prior to the 14 meeting with the Chief. Mr. Ostertag explained that he started with one and increased it to two or more if needed. Attorney Renning questioned the training that was provided to the bouncers. Mr. Ostertag explained that they had meetings regarding what was appropriate and inappropriate ways to handle situations. Attorney Renning questioned how many cameras were installed prior to the meeting with Chief Greuel. Mr. Ostertag stated that he had fourteen cameras prior to the meeting. Attorney Renning questioned Mr. Ostertag if there had been a time he was unable to provide a tape for the police to view since the abatement. Mr. Ostertag stated that his cameras ran on an eight -hour time frame. He explained that he could not provide the tape due to it had been rewound. He explained that if an officer needed a video, they should put a notice on his door and he would save the camera for them. Attorney Renning questioned when the lasers had been implemented. Mr. Ostertag explained that there had been microphones since the beginning. He stated that they had problems with the lasers being stolen so they stopped using them for a while and had started to use them recently. Attorney Renning questioned if all identification cards except for out of state were scanned. Mr. Ostertag explained that they try not to take out of state IDs and that all patrons have their ID's scanned. Attorney Renning questioned when the dress code had been implemented. Mr. Ostertag explained that the dress code was updated continually. He stated that he had a dress code in place since he opened the business. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Attorney Renning questioned the training that was provided to his employees and how long the training had been implemented. Mr. Ostertag explained that all bartenders were licensed and if there were no bouncers on duty, the bartender was responsible for checking minors and not to serve patrons that were too intoxicated. He explained that he has meetings on a regular basis with his employees. Attorney Posanski questioned when he had received the notice of recommendation to not renew the liquor license. Mr. Ostertag stated that it had been in his mailbox, without an envelope and not addressed to anyone. Attorney Posanski questioned if the document was personally handed to him. Mr. Ostertag stated that it was not. Attorney Posanski questioned if he had been aware prior to that notice that his liquor license may not be granted for renewal. Mr. Ostertag stated that he was unaware that the license may not be granted for renewal. 15 Mayor Esslinger questioned if Council Members had questions for Mr. Ostertag or his Attorney. Council Member Buchholz questioned the inconsistency regarding what documents Mr. Ostertag had or had not seen. He explained that Mr. Ostertag referred to an exhibit date related to November and Council's exhibits were dated December. Mr. Ostertag apologized for the error on the incorrect date he had been referring to. He stated that it was the one he had in his possession. Council Member Buchholz questioned if Attorney Posanski had not seen the three points until June 18 Mr. Ostertag stated that it was the first time he had seen that, he did not recall seeing it prior to this meeting. Council Member Buchholz questioned when Mr. Ostertag took the abatement seriously that the licensed may not be renewed. Mr. Ostertag stated that he took the abatement seriously at the December 11 meeting. Council Member Buchholz questioned what would Council expect to hear from the attorney if the process was laid over for two weeks. Attorney Posanski stated that the allegations put forth were tribunal. He stated that per the open request he had seen 12 instances. Council Member Buchholz questioned Attorney Posanski if his time had been limited with his client regarding due process. Attorney Posanski stated that the notice was left in Mr. Ostertag's mail box and should have been hand delivered. He explained that two days to prepare for a hearing was a short time. Council Member Buchholz stated that since the December 11 abatement meeting the number of incidents had not been reduced. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Attorney Posanski stated that the number of incidents were not violent. He explained that the incidents could have been things that had happened outside, such as a flat tire or a fall. He stated that he had found twelve situations over a course of a year that had happened. He explained that Chief Greuel had stated that those instances were the most serious. Council Member Buchholz questioned if Mr. Ostertag had worked towards the abatement proposed by Chief Greuel. Mr. Ostertag explained that bar owners did not want violence in their establishments. He stated that he would work with Chief Greuel if there was more that could be done. Council Member King questioned if the open records request was in writing and what time the request was made. Attorney Posanski stated that the open records request was done verbally through voice mail to Chief Greuel yesterday and he accommodated him in his office today. He explained that Mr. Ostertag received the notice two days prior to Council and had to retain 16 his attorney for representation and then to gather information. Council Member Tower questioned the amount of nights per week that Mr. Ostertag was present at the bar. Mr. Ostertag explained that he did the cleaning, bookwork and inspections in the evening when the bar was open. Council Member Tower questioned how many nights a week he was in the bar to observe the activity from 8 pm to bar time. Mr. Ostertag stated that he was there on the busier nights. He stated that he tried to be there as much as he could and he made nightly stops to check on things. Council Member Tower questioned the updates on the dress code. Mr. Ostertag explained that the updates included long chains, medallions, the flat brim hats and that clothing could not be longer than the zipper line. Council Member Tower questioned what the dress code was like prior to the June update. Mr. Ostertag explained that dew rags, jerseys, pajamas and no jogging shorts were not allowed or inappropriate clothing at his discretion. Council Member Tower questioned if there had been issues with refilling liquor bottles. Attorney Posanski explained that those allegations were ongoing and his constitutional right was not to answer. He explained that his client denied the allegations. Deputy Mayor Palmeri questioned Attorney Posanski's theory as to why the license may be revoked. Attorney Posanski stated that he did not deny that there had been incidents. He explained his theory was that the police did not agree with the cliental. Deputy Mayor Palmeri questioned why the cliental would not be liked. Attorney Posanski stated that he did not know the answer. Deputy Mayor Palmeri questioned the type of cliental. Attorney Posanski explained that they were a college age crowd with a mixed race. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Deputy Mayor Palmeri questioned the seriousness of the dress code. Attorney Posanski stated that the college patrons understand the code. Deputy Mayor Palmeri stated that the dress code was a joke. Attorney Posanski stated that it was a small business and it had been posted. Deputy Mayor Palmeri questioned what the statement that all items listed on the dress code would need to be removed and placed outside. Mr. Ostertag explained that items would be removed and taken to their vehicle. Council Member Tower questioned the cliental in the bars within the area. Mr. Ostertag 17 explained that he was not sure of the cliental in other bars. Council Member Tower stated that if the license was not renewed, the cliental would proceed to another bar. Attorney Posanski stated that the question would be intended for the police as they were the ones wanting to close the bar. Mayor Esslinger questioned why the dress code had taken so long to implement after the December meeting. Mr. Ostertag stated that there had been other dress codes, however, this was updated. He explained that he could update again and include no nap sacks. Mayor Esslinger announced that the final statements would be given by the Attorneys. Mr. Renning provided the certificate of service that service had been provided to Mr. Ostertag. Mayor Esslinger questioned if that was to be acknowledged and entered as an exhibit. Ms. Lorenson stated that it would be filed as exhibit 6. Attorney Posanski objected stating that the record was closed. Ms. Lorenson explained that Council could take it as the record had not been closed. She stated that it would be decided by Council if they wanted to accept or not. Attorney Renning explained that the Clerk had the copy filed in the Clerks Office and the record was not closed. Council Member King explained that it was a matter of public record, so the public record spoke for itself. Mayor Esslinger stated that it would be entered as an exhibit. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Attorney Renning explained that the problems started off July 1 2008 were looking for the renewal period for July 1, 2009 through June 30, 2010. He stated that the call volume at O'Brian's was significantly higher than any other call volume at any other tavern in the City. He stated that in November after informal abatement procedures and officer interaction with O'Brian's staff the police began their formal abatement process with notice of the consequences for not following this process. He stated that Mr. Ostertag acknowledged receipt and understood the consequences. He explained that things continued to decline as there was an increase of calls. He explained that in March the Oshkosh Police Department and the State W-1 conducted an investigation and found violations of alcohol and tobacco not purchased from the wholesalers and refilling bottles, gambling, pull tab issues, not defacing or breaking the bottles. He urged Council to review how serious Mr. Ostertag was with regards to the abatement process and the procedures and timing of procedures that were implemented. He explained that it was outrageous to question the integrity of the police and the Chief. He explained that the call volume as well as the incidents that took place in March showed that Mr. Ostertag maintained a disorderly, riotous, indecent location which warrants the Chiefs request to not renew the liquor license at this time. Attorney Posanski explained the difficulty to try the case before Council within one night. He thanked the staff for their time. He questioned if issues such as this needed to be tried at a Council Meeting. He stated that a special meeting would be appropriate for this type of meeting. He stated that the issue before the Council was serious. He explained that the notification of timelines was not appropriate. He explained that there were 12 instances that were of importance. He explained that Mr. Ostertag had a high volume business. He stated that there was not enough time to prepare. He urged Council to grant the license and it would be revoked if problems continued. He explained that Mr. Ostertag had complied with the abatement by changing drink specials, amended the procedures at the door, and increased staff training as well as posting City ordinances at the door. He stated that if problems increased the City could revoke the license or not renew it. He explained that if the problems would persist and the license was going to be revoked Mr. Ostertag would have the ability then to sell the establishment rather than having an empty building. Council Member Buchholz stated that he would vote in favor of the renewal; however, it was with great reservation to do so. He thanked the Oshkosh Police Department for their involvement by trying to work with the community regarding issues of this nature. Council Member Poeschl stated that change needed to happen at Mr. Ostertag's business. He urged Mr. Ostertag to request help if needed regarding the abatement process. He stated that he would support to renew the license. He explained that if the problems did continue he would vote against the renewal next year. Deputy Mayor Palmeri questioned Attorney Lorenson if the March inspection by the state and city would be allowed to consider the determination of the license. Ms. Lorenson stated that it would be allowed for consideration. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Deputy Mayor Palmeri explained that the issue to determine the renewal or not was based on trust. He stated that he trusted the Chief and would vote against the renewal of the license. He explained that the Chief proved that this was a public safety issue. He agreed that the process regarding handling tavern licenses needed to be revised. Council Member Tower explained that it had been presented that there had been issues. He 19 explained that licensing was a privilege and with a privilege came responsibility. He stated that the responsibility had not been shown to the Council. He stated that he would vote against the renewal. Council Member McHugh stated that Mr. Ostertag had started to make improvements in several areas since the previous discussion with the Chief. He stated that he would support the renewal. He explained that situation would make O'Brian's a better establishment or he would no longer be there. Council Member King explained that Council was seeing the benefits of a new Police Chief and the impact of benefits regarding community policing. She questioned the last time there had been a hearing regarding public safety, enforcement of law and illegal gambling in taverns. She stated that there were proprietors breaking the law and not taking public safety seriously. She announced how proud she was of the Chief and the Officers through community policing, taking steps to make business owners accountable for public safety and for the use of our public safety resources. She explained that this televised public hearing showed the other proprietors within the City that public safety was taken seriously. She explained that she would have liked for the police to provide a timeline for issues to be met or consequences would take place. She stated that exhibit one was valuable for the case. She explained that she had no comparison as to how many other taverns had been inspected and the outcome of those. She explained that due to this hearing there was now a higher standard in the City. She stated that she would support the renewal based on the lack of the understanding of the timeline accountability for the abatement plan. Mayor Esslinger stated that he had faith and confidence in Chief Greuel. He explained that the Chief had presented a case regarding the problems at the establishment. He stated that the issues were subjective as to who was at fault. He stated that the tavern owners have been put on notice that they would be scrutinized and if there were problems the Chief would come forward. He stated that he would support the liquor license; however, if the Chief would come back to Council with incidents he would revoke the license. Resolution 09 -227 WITHDRAWN Resolution 09 -228 Approval of Final Resolution for Special Assessments for Cold Mix Asphalt Paving (Minnesota Street, 7 th Avenue, 18 Avenue Ontario Street, Sweet Street, Shorelane Street) (Petition received for sewer improvements on Shorelane Street, before it is paved) MOTION: ADOPT (Palmeri; second, Tower) PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 MOTION: AMEND TO ELIMINATE SHORELANE STREET FROM THE PROGRAM (Tower; second, King) CARRIED: Ayes (7) Buchholz, Palmeri, King, Poeschl, Tower, McHugh, Mayor Esslinger 20 VOTE ON RESOLUTION AS AMENDED CARRIED: Ayes (7) Buchholz, Palmeri, King, Poeschl, Tower, McHugh, Mayor Esslinger Wilber Scoville, 324 Shorelane Street, explained that there were no sewer problems prior to 1962. He stated that when the overflow problem was fixed that was when the problems with the sewer began. He explained that sewer problems should be fixed prior to fixing the street and urged Council to fix the sewer prior to laying asphalt. Mayor Esslinger questioned if the Engineering Department felt that the sewer needed to be repaired. Mr. Patek explained that in the future the sewer could be fixed and then concrete paving would be applied. He recommended Council to pull Shorelane Street from the resolution, if that was what the residents were requesting and schedule for construction in the future. Mayor Esslinger questioned if Engineering agreed with putting in a new sewer. Mr. Patek stated that the sewer was not 100 years old. He explained with the experience that Engineering has had with sewers constructed in the 1930's it would be wise to replace. He stated that they had been concerned because the residents of the neighborhood had not shown interest regarding improvements to the streets; therefore they proposed the cold mix program. Mayor Esslinger questioned if there had been calls related to flooding issues due to the sewer. Mr. Patek stated that he could not recall. Mayor Esslinger questioned the timeframe if pulled from the resolution and what the PACER rating was. Mr. Patek explained that it would be two to three years. It would depend on how the program would be implemented into the capital improvement program. He stated that the rating was a two and was in poor condition. Council Member Buchholz questioned if the sewer under Shorelane Street was an issue or if it was an issue with a connecting street. Mr. Patek explained that the sewer on Babbitz Avenue was being replaced and the adjacent streets were concrete. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Deputy Mayor Palmeri questioned the purpose of pulling the street from the program. He stated that he understood that it was pulled due to the suggestion of the residents. 21 Mr. Rohloff stated that there was a petition regarding the issue. Ordinance 09 -229 Approve Various Amendments to Chapter 30 Zoning Ordinance to add a new definition for "Adaptive Reuse" and Permitting the Adaptive Reuse of Specific Buildings in Residential Districts as Conditional Uses (Plan Commission Recommends Approval) There were no appearance and the Public Hearing was CLOSED. FIRST READING: LAID OVER UNDER THE RULES CONSENT AGENDA Approval of Minutes from May 26, 2009 Council Meeting. Approval of Bills presented by the Finance Director. Approval of Cash Report from May 2009. Receipt and Filing of Library Board Minutes from March 26 April 30 and May 28 2009. Receipt and Filing of Museum Board Minutes from May 7, 2009. Petition received for sewer improvements on Shorelane Street, before it is paved. Approval to Players Pizza and Pub Utilize South Park and facilities for their Park Dance Event July 10, 2009. Approval to Peace Lutheran and First English Church Utilize City Streets for their Neighborhood Picnic September 13, 2009 Approval to TFM Promotions Utilize Millers Bay and facilities for their Midwest Walleye Tournament October 9 and 10, 2009. Approval to the American Cancer Society Utilize Menominee Park and Facilities for their 1 st Annual Making Strides Against Breast Cancer -Fox Cities Walk October 3, 2009. Approval to Take Back the Night Utilize City Streets for their Annual Take Back the Night March and Rally October 6, 2009. Approval to UWO Utilize City Streets for their Road Race July 12, 2009. Approval to Kappa Lambda Chapter of Zeta Tau Alpha Utilize City Streets fortheirThink Pink 5K Run /Walk/Roll October 17, 2009. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 22 Approval to Grand Opera House/ Utilize Grand Opera House Square for Movies in the Park/ July 10 and 24, August 7 and 21, 2009. Receipt of Claim filed with the City's Insurance Company Doris Matulle for property damages alleged from a sewer back -up in basement. Receipt of Claim filed with the City's Insurance Company Liberty Mutual (policy holder Thomas and Kay Mettlach) for property damages alleged from sewer back -up. Resolution 09 -230 Approve Granting an Easement to American Transmission Company on the Lakeshore Municipal Golf Course Property Along USH 41 to Relocate a Transmission Line in Conjunction with the USH 41 Reconstruction Project (Plan Commission Recommends Approval) Resolution 09 -231 Approve a Conditional Use Permit to Permit Funeral Services in Association with a Hmong Community Center 910 West Murdock Avenue (Plan Commission Recommends Approval) Resolution 09 -232 Approve Mutual Aid Box Alarm System MABAS) Agreement for Receipt or Deployment of Personnel and \or Equipment in a Multi- Jurisdictional or Multi- Agency Emergency Response throughout Wisconsin and Neighboring States Council Member McHugh questioned if 20% of adequate resources would be sufficient. Tim Franz, Fire Chief, stated that the department was always staffed at 80 He explained that if 20% of resources would be out for a period of time they would recall and re- staff equipment. Council Member Buchholz questioned if there would be a communication center for the MABAS and where it was. Chief Franz explained that there was no central communication center; each communication center in the state would be by district. He stated that Oshkosh's district would be Winnebago County and they would have a shared frequency called IFERN. He explained that this allowed for additional resources to be pulled from different counties, as well as Illinois. He stated that eventually this could go nationwide. Resolution 09 -233 Award Bid for Public Works Contract No. 09 -07 to Carl Bowers and Sons Construction Company for Various Concrete Paving and Utility Projects North Side Paving ($3,534,641.00) Council Member Buchholz questioned where the engineering cost was approved. 23 PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Mr. Patek stated that it had been approved in the capital improvement program. He explained that the CIP included the cost plus 12% for engineering design and construction management. Council Member Buchholz questioned the $500,000 saving and what happened to the reallocation. Mr. Patek explained that the funds would stay in that section. Mr. Rohloff explained that unspent funds were reconciled as future borrowing took place. Resolution 09 -234 Approve Authorized Representative to File Applications for Financial Assistance under the Wisconsin Environmental Improvement Fund Clean Water Fund Program for Storm Water and Wastewater System Improvements Resolution 09 -235 Approve Declaration of Intent to Reimburse Expenditures for Wastewater Facilities Improvements in Anticipation of Funding Through the Wisconsin Environmental Improvement Fund Clean Water Fund Loan Program Resolution 09 -236 Approve Declaration of Intent to Reimburse Expenditures for storm Water Facilities Improvements in Anticipation of Funding through the Wisconsin Environmental Improvement Fund Clean Water Fund Loan Program Resolution 09 -237 Disallow Claim by Sentry Insurance (policy holder— Dean Brawn) for property damages alleged from City cleaning lines Resolution 09 -238 Disallow Claim by Dorothy Durrant (for property damages alleged from sewage forced out of drain in basement) Resolution 09 -239 Disallow Claim by Lang Oil (property damages alleged from Ohio Street reconstruction) Resolution 09 -240 Approval of Annual City License Polito's Pizza Resolution 09 -241 Approval of Special Class B Licenses, Combination "Class B" Licenses, Transfer of Combination "Class B" License, Operator's Licenses, Junk Collector License and Taxi Cab License MOTION: ADOPT CONSENT AGENDA EXCLUDING RESOLUTION 09 -241 (King; second, Buchholz) CARRIED: Ayes (7) Buchholz, Palmeri, King, Poeschl, Tower, McHugh, Mayor Esslinger 24 PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Resolution 09 -241 Approval of Special Class B Licenses, Combination "Class B" Licenses, Transfer of Combination "Class B" License, Operator's Licenses, Junk Collector License and Taxi Cab License MOTION: Adopt (Palmeri; second, King) MOTION: DIVIDE INTO TWO PARTS: PART A BEING AMVETS POST #7; AND PART B BEING EVERYTHING EXCEPT THE AMVETS POST #7 (Palmeri; second, King) CARRIED: Ayes (7) Buchholz, Palmeri, King, Poeschl, Tower, McHugh, Mayor Esslinger Resolution 09- 241AApproval of Special Class B Licenses, Combination "Class B" Licenses to AMVETS Post #7 MOTION: ADOPT (Palmeri; second, King) CARRIED: Ayes (6) Buchholz, Palmeri, King, Poeschl, Tower, McHugh; Present (1) Mayor Esslinger Mayor Esslinger stated that he would vote present as the AMVETS were a client of his. Resolution 09 -241 BApproval of Special Class B Licenses, Combination "Class B" Licenses, Transfer of Combination "Class B" License, Operator's Licenses, Junk Collector License and Taxi Cab License (except for AMVETS Post #7) MOTION: ADOPT (Palmeri; second, King) CARRIED: Ayes (7) Buchholz, Palmeri, King, Poeschl, Tower, McHugh, Mayor Esslinger ACTION TAKEN ON ORDINANCES AND RESOLUTIONS Ordinance 09 -242 Set Interest Rate for Special Assessment Payment Plans MOTION: ADOPT (Palmeri; second, Buchholz) CARRIED: Ayes (7) Buchholz, Palmeri, King, Poeschl, Tower, McHugh, Mayor Esslinger Ordinance 09 -243 Change Hours of Enforcement for Monthly Parking Spaces FIRST READING; LAID OVER UNDER THE RULES Ordinance 09 -244 Revision of Parking Permit Programs and Removal of Parking Meters from 25 West 8th Avenue and Riverside Park Municipal Parking Lots FIRST READING; LAID OVER UNDER THE RULES PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Ordinance 09 -245 Approval of Traffic Control Changes on Michigan Street, McKinley Street and West 12th Avenue and Parking Regulations Changes on Algoma Boulevard, Eagle Street, Lincoln Avenue and Vine Avenue FIRST READING; LAID OVER UNDER THE RULES Resolution 09 -246 Approval of Annual City License Screwballs Sports Pub MOTION: ADOPT (Palmeri; second, Buchholz) CARRIED: Ayes (6) Buchholz, Palmeri, King, Poeschl, Tower, McHugh; Present (1) Mayor Esslinger Mayor Esslinger stated that he would vote present as the owner was a client of his. Resolution 09 -247 Approve Granting Privilege in Street to Mark Glomstead, et al for Placement of Private Irrigation System within the Terraces on Fox Fire Drive and East Pheasant Court at 400 Fox Fire Drive (Plan Commission Recommends Denial) MOTION: ADOPT (Palmeri; second, Buchholz) MOTION: LAYOVER UNTIL JULY 14, 2009 MEETING (King; second, McHugh) CARRIED: Ayes (7) Buchholz, Palmeri, King, Poeschl, Tower, McHugh, Mayor Esslinger Mark Glomstead, 400 Fox Fire Drive, stated that he was requesting the privilege in the street and had a number of exhibits to present. He explained that he was installing an irrigation system in his yard. He presented a blue print of the design showing approximately 24 sprinkler heads in the City terrace. He stated that his plumbing permit had been approved and he started work on May 29 and then five days later the City requested to stop excavation. He explained that at this point he had approximately $1,500 invested in the installation along with labor and that it was 70% complete. He stated that it had been suggested to provide a release of liability to the City and that was included in the packet. He explained that he had completed everything that had been requested from the City. He stated that the Plan Commission had provided him with a list of encumbrances that were obstructionist and not fair. He requested the Council to strike one, seven, eight, nine and ten from the resolution. He explained that there would be additional costs of a least $1,000 to re- engineer the system and de- excavate what had been installed. Council Member McHugh stated that he had been granted permission and complied with requests; therefore, he should be allowed to continue. He explained that there was an honest mistake made at City Hall and that this would not set precedence if approved. He explained 26 that the problem in the terraces was trees and those were allowed by the City. Council Member Tower stated that there was room to compromise. He questioned the number of encumbrances he wanted removed. He questioned Public Works if there was an annual $450 fee to be a member of digger's hotline. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Mr. Rohloff stated that there was an annual fee with digger's hotline. Steve Gohde, Assistant Director, stated that typically there was fee; he was not sure of the cost. Deputy Mayor Palmeri questioned the purpose of having a home owner become a member of the digger's hotline system. Mr. Gohde explained that in the event the utility had to dig in the terrace they needed to contact diggers hotline for a planning locate. He stated that if a contractor was to dig and run into a problem not listed with digger's hotline then all excavation would need to stop until it was indicated as to what it was. Deputy Mayor Palmeri stated that if he belonged to the digger's hotline they would be aware of what was located in the area. Mr. Gohde explained that if he was in the digger's hotline they would know it was an irrigation system and what depth it was and then they would be able to dig through and not stop. Deputy Mayor Palmeri questioned what the purpose of number eight was, that the irrigation system be modified or removed immediately upon the request of the City. Ms. Lorenson explained the privilege in the street was a statutory thing that was granted and required the property owner to comply with several requests. She explained that it would not require the City to be liable to remove the system. Deputy Mayor Palmeri stated that he had heard at the Plan Commission that nine of the conditions were always given and two additional ones had been added to this situation. Mr. Gohde stated that it was correct that nine were granted and in this case two additional ones were added due to it was private property with the possibility of the property being sold and the future owner not aware of the responsibilities that go with it. Deputy Mayor Palmeri questioned if number eight was statutory. Ms. Lorenson explained that number eight was based on the statutory language which states that the owner was obligated to remove an obstruction or excavation upon a ten day notice from the municipality. Deputy Mayor Palmeri stated that he perceived the discussion with the Plan Commission that 27 the conditions given were a compromise. He stated that he would support the resolution. Mr. Patek explained if there was a requirement for digger's hotline in the State Statutes as there was a requirement for Public Works to locate utilities for anything in the right of way. He stated that conditions were more restrictive. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Mr. Rohloff stated that this was a unique situation. He questioned if Mr. Glomstead's homeowners insurance would be appropriate coverage. Ms. Lorenson stated that she was not sure that homeowners insurance would be sufficient. She explained that if he was granted the privilege, the home owner would sign a hold harmless agreement that would be sufficient under the Statute. Mr. Patek stated that all utility departments were required to locate their utilities. Mr. Rohloff explained the reason conditions were in place were to make record of what was placed in the terrace for future years. Ms. Lorenson stated that the insurance was a statutory obligation to assume liability. She stated that Mr. Glomstead needed to contact his homeowners insurance to see if liability would be covered under that policy and if it would be then it would be approved. Council Member Buchholz explained that on a memo it was stated that if approved by Council there would need to be two conditions included. He questioned how it went from two conditions to eleven. Mr. Rohloff explained that he had requested Mr. Kinney to include those two conditions in the memo. He stated that the other conditions were statutory requirements. Council Member McHugh stated that Mr. Glomstead should not be held liable for financial cost of this project due to the mistake. He explained that it was an honest mistake. He stated that residential homes were not required to join digger's hotline. Council Member Tower explained that it was an unusual circumstance relating to the honest mistake and that it was an irrigation line. He stated that if denied the City needed to take responsibility in replacing the lawn on the terrace. He questioned what needed to be done statutorily to resolve the problem. He stated that there was no compromise if all of the conditions were required. Mayor Esslinger stated that an honest mistake had been made. He suggested that the City pay for re- engineering of the irrigation system and have the irrigation line in his lawn and not in the terrace. Mr. Glomstead stated that it would be the lesser of the two acceptable options. He explained if W-1 the line was not in the terrace he would need to irrigate 1,200 square feet of sidewalk to have the water reach the terrace. Mayor Esslinger questioned if residents were allowed to spray water over the sidewalk to water the terrace. Mr. Rohloff stated that he was unaware of any prohibition concerning that. He stated that another alternative was not to irrigate it at all. He explained that the City wanted to accommodate the situation as the City recognized the honest mistake. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Mr. Patek stated that it was allowed. Council Member Buchholz stated that he agreed with Mayor Esslinger's suggestion and a compromise needed to happen. He questioned if Mr. Glomstead needed to file a claim. Mr. Rohloff explained that it would be an appropriate compensation without filing a claim. Council Member Buchholz questioned if the City considered spraying water across the sidewalk was unsafe. Mr. Rohloff explained that the only conditions regarding sidewalks were snow and ice removal. Mayor Esslinger stated that he would not support to layover the resolution, as Mr. Glomstead and his neighbors had been dealing with this matter for weeks and a decision needed to be made. Deputy Mayor Palmeri explained the purpose for the layover was to allow the City Attorney to review what could statutorily be removed from the conditions. Mr. Rohloff explained that it was proposed to layover to work through Mayor Esslinger's suggestion. Deputy Mayor Palmeri stated that Mr. Glomstead did not sound enthused about the option suggested by Mayor Esslinger; that he wanted to proceed with his project. He questioned if any of the conditions could be removed. Ms. Lorenson explained that the Statute required the applicant to assume primary liability for damages to person or property by reason of granting the privilege; were obligated to remove an obstruction or excavation upon ten days notice from a municipality; the holder of the privilege was not entitled to damages for removal of the obstruction or excavation, if they don't remove it upon notice the municipality had the right to remove it at the owner's expense; owner needed to present a bond to secure the obligation of the performance of the conditions. She stated that the City had not recommended the bond. She explained that seven, eight, nine and ten were related to those requirements for assuming primary liability and removal of the obstruction. 29 Deputy Mayor Palmeri stated that the conditions were standard. He questioned if the resolution was passed with the eleven conditions attached if the project would continue. Mr. Glomstead stated that he had not decided due to his discouragement and was prepared to remove the system and sell it. He stated as a last resort he would re- design the system and remove the heads from the terrace. Deputy Mayor Palmeri questioned if the digger's hotline requirement was removed would that help with the project to move forward. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Mr. Glomstead stated that it would be of help. Mr. Patek explained that the City would not be the ones digging that area up, it would be the gas company and the phone lines and they would not have knowledge as to what had been done. He stated that he believed that it was a requirement of the State Statute. Mr. Rohloff suggested the Mayor's proposal to layover and try to work through the issues. Resolution 09 -248 Approve Memorandum of Understanding for Signage Installation and Removal in Conjunction with EAA's Airventure MOTION: ADOPT (Palmeri; second, Buchholz) CARRIED: Ayes (7) Buchholz, Palmeri, King, Poeschl, Tower, McHugh, Mayor Esslinger Deputy Mayor Palmeri questioned why the agreement was with EAA and not Country USA or other large events held in the City. Chris Strong, Transportation Director explained that the agreement was based on past practice. He stated that if needed for another event it would be a similar agreement. Council Member Buchholz questioned why it was approved as a memorandum and not an agreement. Mr. Strong explained there had always been an understanding; however it was not documented. He stated that he did not see a difference between a memorandum of understanding and agreement. CITIZEN STATEMENTS Kenneth Neyhard, 642 West 8 Avenue, urged the Council to fix the storm sewer in the 600 block of 8 Avenue in 2010 rather than 2011. He stated that an engineer had explained to him that the storm sewers were too small and needed to be six inches larger than what they currently were and the sewers needed to be deeper in the ground. He stated that he had C problems with the pipes freezing and had to have the City come to thaw them out. He thanked Mr. Rohloff for his consideration and the Council for listening. Council Member Poeschl questioned if the problem area was from 8 th Avenue to Ohio Street. Mr. Neyhard stated that yes it would be to Ohio Street. He explained that the sewer was about 100 years old. Susan Schneider, 634 West 8 th Avenue, stated that she had spoken on the issue approximately one year ago. She stated that it had been suggested then to have a neighborhood meeting and she has yet to have heard of any meeting. She explained that she had $36,000 of damage from the June 2008 flood and it had taken one year to clean up their home. She stated that they had an additional $8,000 of plumbing added to their basement to PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 secure there would be no back up again. She explained that in June of 2009 she had been concerned with flooding of the streets and once again there was sewer water in the basement. She stated that her plumber assured her there was no problem with the pipes in her basement; however, there was a problem with the pipes in the street. She stated that she was afraid to leave her home in fear of flooding in her basement and was seeing a counselor due to the issues with the flooding. She requested an explanation as to why it would take two years to fix the problem. Betsy Waters, 648 West 8 th Avenue, urged the Council to move forward to fix the problems with flooding on 8 th Avenue. She explained that she had between 5.5 and 6.5 inches of water in her basement. She stated that it was emotionally damaging the residents in that area. She stated that her basement walls were caving in. Brian Heidel, 623 West 8 th Avenue, urged Council to move forward with construction prior to 2011. He explained that there had been four feet of water surrounding his home. Council Member Poeschl questioned if he was speaking about the basement or his house. Mr. Heidel explained that he had a crawl space and the water went past that. Patty Richter, 616 West 8 th Avenue, stated that on June 8 2009 there had almost been another flood as the water went to the front lawns and this was with less than one inch of rain. She explained that City workers had gone out on June 10 2009 to check the sewers and were informed that the sewer pipe location was two and half feet deep. She explained that there were a number of streets that needed to be fixed; however, they were the only street that continues to flood. Lori Stang, 641 West 8 th Avenue, stated that 8 th Avenue had previous problems with flooding in 2004 flooding in the homes took place. She showed pictures of the road after the flood in 2004 and 2008. She stated that on June 12 2008 they were evacuated to the City Centre that was cold and had no blankets and no where to sleep and she went to a hotel; June 13 2008 they returned to homes and the street was still under water. She stated that on June 9 1h her 31 basement had 6' 7" and the neighbors all had three, four, five, six feet; therefore, residents were unable to pump water out. She stated that 9 1h Avenue was completely dry, and 8 th Avenue was the only street in Oshkosh with standing water. She stated that July 10, 2008 the streets backed up again and the basements were again flooded. She stated that on June 9, 2009 she spoke to FEMA and was told that the City would be liable for damages due to the City being aware of the problem and were not fixing it. She urged the Council to vote on what was needed and not wanted and proceed with fixing the problem on 8 th Avenue. She stated that the City's neglect can no longer be the homeowners repair bill. Geoff Kuhnz, 4279 Fisk Avenue, explained that he was present to discuss the west side arterial and that five minutes was not enough to speak on the troubles with the project. He stated that it was too close to Highway 41, did not provide a remedy for moving traffic across the Butte Des Morts bridge without the use of Highway 21; executives from three trucking firms have stated that the west side arterial was not a reasonable alternative to the usage of Highway 41 because it needed to be further west; the project destroyed hundreds of acres of productive and taxable PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 farm land; thus far there had been inadequate engineering scientific or economic justification; the rational that the three mile extra territorial limit contains you to map a 40 to 50 year old road close to highway 41; the proposal does not use any existing road; and the fact that Town of Nekimi Board and citizens had sent a resolution that continued the unanimous objection to the project were not subjects that can be talked about within the five minute timeline. He explained a Council Member he had spoken with stated that they had sensed frustration for a number of reasons, one reason being there was not enough information pertaining to the road plan and the impact on the community in that vein he urged the Council to understand. He stated that the citizens that had spoken at the April 28 meeting spoke with emotion and sincerity. He stated that the reconciliation from speaking emotionally or passionately about the project was the understanding of the factual circumstances. He explained that his home had been built 10 years ago on Fisk Avenue between Clairville Road and Clay Road relying on information that an eventual Westside arterial would use Clairville Road for that purpose and built the home in the back end of the 40 acres approximately 1,000 feet south of Fisk Avenue, the home had 80 windows and no curtains and the market value and appeal was due to the privacy, security and tranquility. He stated that they had intentions to reside there forever and had invested financial resources in the home that they would not recover as many township neighbors had when they built their homes. He explained that they loved their location. He stated that the current alternative ran through farm land with no existing road being used. He stated that property owners would receive payment for their land but not their loss. He explained that if the road right of way would take 125 feet from both himself and his neighbor; he would receive approximately $4,000 from the land and nothing for the decline in the value of the home. He stated that he had received two professional appraisals regarding the impairment to his home's value relative to the proposed road and the decrement ranges from a $100,000 in the low side to $200,000 on high side due to location. He stated that the properties impairment was occurred when the road was mapped and not built. He urged Council to minimize the emotional and financial impacts that were illustrated tonight, demand that the planners justify their plan; support their evaluations, judgments, recommendations, prioritizations, alternatives and conclusions in the way that any great organization would; demand that there be no 32 constraint in imagination because a good solution was not good enough. Doug Buettner, 901A South Main Street, questioned why sidewalks needed to be replaced if damaged slightly. He questioned why the citizens could not provide one minute of input prior to the meeting. He questioned why the inspectors were not taking recorders with them. COUNCIL MEMBER ANNOUNCEMENTS, STATEMENTS AND DISCUSSION Council Member Tower announced that on July 7 1h Henry Kimberly would be 90 years old. He stated that he had been a civic leader for many years and helped to bring EAA to Oshkosh. Council Member Poeschl questioned if Council would hold a workshop meeting regarding the residents of 8 1h Avenue. He questioned the time that the Westside arterial would come before Council. Mayor Esslinger stated that he was requesting to be noticed for the next Council Meeting for the 2010 capital improvement program relating to 8 1h Avenue. PROCEEDINGS OF THE COMMON COUNCIL -.TUNE 23, 2009 Mr. Rohloff stated that he would provide a report as well as an update. Council Member Buchholz suggested that license hearings should be separated from the regular meeting. CITY MANAGER ANNOUNCEMENTS, STATEMENTS AND DISCUSSION Mr. Rohloff stated that the Grand Opera House had received $5,000 to help cover inspection cost of the ceiling. He stated that there was a tentative meeting to be held on July 28 He stated that it would be approximately half hour prior to the meeting. He stated that the Grand Opera House bids would be on the Agenda as well as the 400 block issue. He stated that the Public Hearing regarding Lane Street was pulled due to the increase in cost and the need for notice of the meeting. He explained that the residents had been notified and were satisfied with deferring it until July 14 Council Member Tower questioned if the liquor license allocation would be held on July 28 Mr. Rohloff stated that they would try to reschedule the Passenger Rail Workshop due to the Agenda being filled with time consumable issues. Deputy Mayor Palmeri observed that when there was an issue of urgency it was continually placed on the agenda and the 8 1h Avenue issued had never been on the agenda. Mr. Rohloff stated that that was part of the reason why the Capital Improvement Program was moved up. 33 MOTION: ADJOURN (Poeschl; second McHugh) CARRIED: VOICE VOTE The meeting adjourned at 11:25 p.m. PAMELA R. UBRIG CITY CLERK c