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CCM 07/27/2020 CITY COUNCIL MEETING CITY OF FRIDLEY JULY 27, 2020 The City Council meeting for the City of Fridley was called to order by Mayor Lund at 7:02 p.m. ROLL CALL: MEMBERS PRESENT: Mayor Lund Councilmember Tillberry Councilmember Eggert Councilmember Bolkcom Councilmember Ostwald OTHERS PRESENT: Wally Wysopal, City Manager Scott Hickok, Community Development Director Ryan George, Deputy Director, Public Safety Nathan Westbrook, 5821 Hackmann Avenue NE Andrew Bigerstaff, City Attorney Jack Ayim, Association for Non-Smokers APPROVAL OF PROPOSED CONSENT AGENDA: APPROVAL OF CITY COUNCIL MINUTES: 1. City Council Meeting of July 13, 2020. APPROVED. NEW BUSINESS: 2. Adopt Resolution No. 2020-38 Designating Time and Number of City Council Meetings for 2021. Wally Wysopal, City Manager, stated generally speaking the meetings will remain on the second and fourth Mondays of the month. ADOPTED RESOLUTION NO.2020 – 38. 3. Adopt Resolution No. 2020-39 Approving Gifts, Donations, and Sponsorships for the City of Fridley. ADOPTED RESOLUTION NO. 2020 – 39. FRIDLEY CITY COUNCIL MEETING OF JULY 27, 2020 PAGE 2 4. Approve Change Order No. 2 for the Locke Park Water Treatment Plant Improvement Project No. 17-509. Walter Wysopal, City Manager, stated the cumulative amount of these two change orders are 1.4 percent of the budget. Typically, they set 5 percent as a matter of concern. The changes are made at the City’s request, and the funding is from the Water and Utility Fund through the loan from the Community Investment Fund. APPROVED. 5. Claims: (189545 – 189656) APPROVED. ADOPTION OF PROPOSED CONSENT AGENDA: MOTION by Councilmember Bolkcom to adopt the proposed consent agenda. Seconded by Councilmember Tillberry. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. OPEN FORUM, VISITORS: No one from the audience spoke. ADOPTION OF AGENDA: MOTION by Councilmember Bolkcom to adopt the agenda. Seconded by Councilmember Tillberry. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. PUBLIC HEARING/NEW BUSINESS: 6. Public Hearing Declaring a Hazardous Building at 5821 Hackmann Avenue NE; and Adopt Resolution Ordering the Removal or Repair of a Public Nuisance/Hazardous Building Pursuant to Minnesota Statutes, Section 463, Located within the City of Fridley, Minnesota (Ward 2) (Continued June 22, 2020). FRIDLEY CITY COUNCIL MEETING OF JULY 27, 2020 PAGE 3 The public hearing was opened at 7:05 p.m. Scott Hickok, Community Development Director, stated the purpose for the hearing was to determine conditions of the site and whether they were adequate to be deemed a public nuisance. The property owner, Nathan Westbrook, attended the previous public hearing and is present this evening. Because of work in progress on this site, Mr. Westbrook desired to resolve the dangerous or nuisance characteristics on the site. Staff recommended additional time for this homeowner. Mr. Hickok stated Council held the hearing open until this evening. The home on this site was built in 1956. In 1980, the original tuck-under garage was converted to living space. Sloped conditions on this site made retaining walls necessary. Pressure treated lumber foundations were becoming popular in the 1980’s, and the homeowner used treated lumber designed for large retaining walls and used those retaining walls to flatten the slope for a driveway that would have otherwise been 15 percent. In Minnesota, a 15 percent sloped driveway is probably not a great idea. Mr. Hickok presented a photo of the home from 2012 when Mr. Westbrook bought the property. They can see the tuck-under garage that was converted to living space and the second driveway on the property with short retaining walls. Mr. Hickok stated in 2016, the Westbrooks re-sided the home and provided updates to the exterior of the detached garage as well. The dangerous conditions were evident though recently on a retaining wall front entrance project. Mr. Hickok stated at the time of their last meeting, Mr. Westbrook had begun working to repair the retaining walls; and there was other excavation going on. Mr. Hickok stated there are two statutory provisions. There is Statute 463 that talks about the hazardous building code, and they have used that section of statutes before. They have actually had to remove hazardous buildings under that section. They also recognize 110.103 which is in the Fridley Code, Public Nuisance Defined. In Chapter 128, they have outlined guidelines for abatement of an exterior public nuisance if one is declared. Mr. Hickok said since the last meeting, there has been great progress. Three contractors have visited the site since last time they spoke. Contractor No. 1 had a bid price of $40,000 to replace retaining walls with modern boulder walls. Contractor No. 2 had a bid price of $51,000. Contractor No. 3 was going to take a different approach and they are waiting for a pending price. This option would be bobcat work with seeding or sodding the site. Mr. Hickok stated Mr. Westbrook’s preference is to complete the work himself without enlisting the help of a contractor now that he has taken it this far. FRIDLEY CITY COUNCIL MEETING OF JULY 27, 2020 PAGE 4 Mr. Hickok presented a concept sketch of what Mr. Westbrook hopes to achieve on his site with a planter wall and stepped boulder retaining wall. He also presented photos of the work that has been done. The excavation has really come a long way. The steps are coming into view now, and there is a good sense of how that will work with the existing driveway conditions, etc. Mayor Lund asked when the photographs were taken. Mr. Hickok replied today. Mr. Hickok stated as to the plan to proceed, staff noted particular progress. The highlighted area in green was an area near the front steps where there is going to be a deck above. There will be a containment area below with gates on it for garbage cans and things to be out of view of the public that will be neatly tucked behind the boulder retaining wall that is being built. The concrete block retaining walls have already been constructed around this area and evidence of the rest of the plan is taking shape. Mr. Hickok stated the owner did indicate at one time interest in evaluating other solutions. Right now, the solution they see under construction is the best step forward and the one Mr. Westbrook has chosen. Mr. Hickok stated it is staff’s opinion that since the most recent discussions on site, there not only appears to be a plan but also great progress towards the completion of this project. Mr. Westbrook has indicated he will have the project done by the end of August. That completed plan includes a planter wall, vegetation to resist against erosion for all the disturbed areas, elimination of silt plumes in the street, elimination of the erosion fence, envirorolls, tarps, and outside storage will be properly placed so the site looks clean, neat, and organized. Also, only licensed and operable vehicles will be in the driveways or in front of the home at the time of completion. Mr. Hickok stated staff recommends that due to the progress and what has been observed that additional time be given for the homeowner to work with staff and work towards the completion of this project. Staff also asks that the hearing be held open until Council’s meeting of September 14 to make sure the additional progress is visible, and the project can be closed without a determination of public nuisance. Councilmember Eggert said they have a plan that says they will be finished by end of August. He has seen the site. He saw Mr. Hickok’s photographs. He is looking at a timeline that covers a number of years since the purchase of the property in which the retaining wall was an issue at that time. He asked who was inspecting the progress. They have about four weeks to finish the project. He would like to know how often it will be inspected. Mr. Hickok replied if they would like staff to slow down on inspections, they certainly can but they have been visiting almost every day on site with Mr. Westbrook. FRIDLEY CITY COUNCIL MEETING OF JULY 27, 2020 PAGE 5 Councilmember Eggert said he does not want staff to slow down. He asked if he could be there for the last inspection. Mayor Lund said Councilmember Eggert is welcome to attend. It looks like it will be held on August 31. Councilmember Eggert said Council does not meet until September 14. Councilmember Bolkcom replied, right, but Mr. Westbrook said he would be done at the end of August. Councilmember Eggert stated at their last meeting they had a couple of comments regarding issues in the back yard. He asked if that had been inspected. Mr. Hickok replied he does not recall that piece of the discussion. Councilmember Eggert stated Leroy Oquist from the Planning Commission and one of the councilmembers talked about it. Mr. Hickok replied if there are other Code issues on site, he will talk to the owner about that. . Mayor Lund stated he did not believe he or any of the other Council members really want to have to pursue this public nuisance, but they will do so if there are no alternatives. He does see by the photos Mr. Westbrook is making significant progress. A week ago, he said he drove by the property and it looked like very little progress had been made. He said he is a little concerned when Mr. Westbrook says between now and the end of August he will have it done. H asked him not to wait to get it done until the last few days of August. It looks like within the last week Mr. Westbrook has been working hard, and that is a huge improvement. Mayor Lund stated if Mr. Westbrook does complete that stepped boulder retaining by the end of August it is on public records, and they will hold that against him if he fails. He is fine with taking this as a step-by-step approach along with some time limitations on the other things that are there such as the other side of the driveway. That wall looks in pretty poor condition. It is the wooden wall. He has heard some comments that Mr. Westbrook wants to scalp that down so it is not as tall; and the neighboring property to the south of him agrees. Mayor Lund stated however, there are some other improvements that need to be done. The trailer and truck in the street. Somebody must have advised Mr. Westbrook if he is going to have that in the street, he has to have his vehicle attached to the trailer. It still seems like Mr. Westbrook had a couple of vehicles in the driveway that are being worked on. Those have to be hidden from view, like in the garage, or elsewhere if he has no room in the garage. He is sure this has all been told to Mr. Westbrook. He just wants to make sure he has a plan beyond that retaining wall. FRIDLEY CITY COUNCIL MEETING OF JULY 27, 2020 PAGE 6 Mayor Lund stated he does not want to overwhelm Mr. Westbrook with all the things at once. As long as they see significant progress and there is a light at the end of the tunnel, they can forego this. They are not going to let him off the hook until the work is substantially done or done. Councilmember Eggert stated he was thinking of Mr. Westbrook as he was doing his own yardwork in that 90-degree weather. There were several days where it was really hot and really muggy. He knows that was a real challenge with the weather. He has a good stretch of weather coming this week, so go for it. Mr. Hickok stated one of the benefits of nearly a daily inspection is he has seen the progress differently. He does see progress you cannot simply see from the street. It is heavy clay and it goes deep next to the driveway. To be fair to the person who has been hand digging this without a bobcat or excavating equipment, a lot of progress has been made. Mr. Hickok stated he would also like to temper the expectation for the end of August. That wooden retaining wall is something that is not part of the August completion project. If Mr. Westbrook chooses and would like to do that at some point, great. Right now, clean up the mess, and get the site to stop bleeding silt into the street. Will there be other retaining projects that Mr. Westbrook will want to do? Certainly. As part of this seeding and grading project, you could probably eliminate the need for those short retaining walls on that little driveway that he showed them because those are more cosmetic than anything. If you groomed that grade down and seeded it, you could stabilize those slopes without any sort of retaining wall. Mr. Hickok stated what they are really talking about is that stepped boulder wall and re- establishing turf and/or plant material that stabilizes the erosion and then to get rid of the other materials outside. He has a plan for the two vehicles that are inoperable in the driveway, to eliminate the vehicle on that site; but as Council has identified, there is a lot of work going on here. He said he predicts that getting past one big milestone at a time here is what is going to be happening between now and the end of August. Mayor Lund stated he will concur with that. He will make comment about the other side of that boulder retaining wall Mr. Westbrook is working on. That is going to need some improvement at some point. Mr. Westbrook is kind of on a roll here, and maybe he wants to continue on and have that further discussion with his neighbor. He said he was not suggesting in any way that this had to be done by August 31. He will be happy that he has the other wall essentially completed and hopefully some shrubbery started in there so it does root and help in keeping the soil in place. Councilmember Bolkcom referred to page 49, the fourth paragraph down, it says, “I am working on tiering”. She asked that the spelling be corrected. In the third paragraph down, the word “repour” should be “rapport.” FRIDLEY CITY COUNCIL MEETING OF JULY 27, 2020 PAGE 7 Councilmember Bolkcom said she drove by it too, and it looks terrible. There was a car and a trailer and another vehicle all out in the street and you had to go around them. She asked why those vehicles had to be there. She asked of the vehicles in the driveway are operable. Mr. Hickok said the Taurus is an operable vehicle. There is a Toyota 4-Runner that is a 4-wheel drive SUV. Councilmember Bolkcom said it was partially in the street when she drove by. Mr. Hickok referred to two vehicles. A mechanic friend is helping Mr. Westbrook get those taken care of. His mechanic friend has been in the hospital, but both vehicles have the parts necessary to get them operable, and it is Mr. Westbrook’s plan to have both of them operable. They have identified the issues, and he understands that is part of the issue here is to get them operable and have them outside only if they are functioning vehicles. Councilmember Bolkcom stated she only brings it up because if it were someone else in another neighborhood who had vehicles like this, that were sitting outside this long, the City would have probably towed them. Can they be stored someplace else and worked on? We are not supposed to be working on vehicles out in the street anyway. That is part of the City’s ordinance; they have to be in a garage. Is there a reason they are still there? It was over a month ago. One was jacked way up. Mr. Hickok replied, yes. There are a number of code enforcement issues on this site that Dan Cahill has worked on. They stopped the code enforcement her and said, there are other issues here and worked on getting the milestones out of the way. Every item on this site has its own issue, has its own story. They could just bombard the owner with it. They could tow vehicles away, and it would compound storage costs. They could do all sorts of things or they could try and accomplish getting long-lasting results. Get to the end of having inoperable vehicles sitting there and make the point that you cannot have all of these things going on. Mr. Hickok stated he does recognize there are times where you are so deep in projects that you need maybe somebody with a flashlight to help you find the end of the tunnel, and the work has been going well. Staff has chosen not to tow vehicles right now, not to compound the problem, but instead to help find the way out of the tunnel, get this work done, and satisfy everyone in the process. The results are long-lasting, and they can end with the friendship of a homeowner rather than this animosity for just absolutely taking every possible approach coming from every certain angle. It is rare to have this combination of issues, but not every situation can be handled precisely the same way. These vehicles were scheduled to be towed. The City called off the tow trucks on this to get issues taken care of here. Councilmember Bolkcom stated as long as it is in the record. Someone else could come along and expect some of the very same. He is making great progress, and she hopes it all happens by the end of August. What if it is not all done, then what happens? What can the neighborhood expect? FRIDLEY CITY COUNCIL MEETING OF JULY 27, 2020 PAGE 8 Councilmember Eggert stated from May of 2018 when he campaigned to May of 2020, from the road nothing really was done. Mr. Cahill had a challenging time in dealing with vehicles and things. From the perspective of time, to him the retaining wall was an issue with the purchase of the home. That goes back to 2012. He is running out of time. As far as he is concerned, at their next Council meeting, they need to deal with this. Councilmember Tillberry asked if it was a realistic plan to expect it will get done by August 31. Mr. Hickok replied, he has had a good discussion with the owner and seen the progress that he is making. He understands what has to be done. The Council is also making it pretty clear the extension is not going to go on forever. The work needs to get done. That point is good and well taken. Could it get done? Absolutely it could. He said he has seen trailer loads of stuff going to the dump. He said he has seen great progress from this homeowner and a desire to just finally get it done. He said it will be up to Council at that point if it is not done. Councilmember Bolkcom stated, if it does not get done, then there would be corrective action. There would be a resolution. She asked if he would be given more time. Mr. Hickok replied, in accordance with Chapter 128, if Council declares it a public nuisance on September 14, on September 15 he would have a 20-day period where he could complete it within that 20 days or he could contact the City and say, here is what the plan is. The reality is though, after 20 days, the City could abate and take the materials, clean up the site, and do what is necessary. Mr. Hickok stated it gets into a touchy area if they are talking about finishing somebody’s retaining wall to a certain design. The City is better off to have Mr. Westbrook finish the wall in the design he wants. It is fairly easy for the City to tow vehicles and basically have them put in storage and to clean up materials and all that. The difficult part is getting the boulder wall done in the way he wants it. Frankly the City does not want to be in the position of designing the boulder wall. They would probably then need to bring on some engineering people to make sure the City is not wrongly advising somebody. It is best if the homeowner can do that. If they can get that piece of it done and if there is outside stuff to be taken care of, the City would handle it through a typical abatement. Councilmember Bolkcom stated so they are into October at this point. Then the City would probably have to hire a contractor to come in and help with the wall. Mr. Hickok replied if it is not done by Council’s September 14 meeting, they will have already probably engaged the people would be involved with the clean-up. He should distinguish between a typical abatement. Dan Cahill does typical abatements. The City is at $70,000 in abatements this year. It is not that this is all that different from a different abatement. Why it is before Council and there is a public hearing is because the retaining wall piece of it is huge, and the desire to have Mr. Westbrook finish it. They get to a more standard abatement. If the wall FRIDLEY CITY COUNCIL MEETING OF JULY 27, 2020 PAGE 9 was done but the rest of the stuff was there, it is more of a standard abatement situation. They are back into territory they know well. Mr. Hickok stated possibly the difference between his view of this and what he is hearing is that he has gotten to know the homeowner a bit. He has a pretty strong understanding from the homeowner that there is a desire to resolve this--not just to make Council happy, but to get it done and have the house looking nice. The problem really started with a $5,000 stipend that came for the retaining wall when they bought the house. Even at that time in 2012 the project was no less than $20,000. It is a lot of hot work, a lot of boulder and earth moving but, comparing it to $51,000, it is worth doing; and there is a desire to get it done. Councilmember Bolkcom stated she did not believe that any of the Council do not want to see to see this project get done, but they also owe it to Mr. Westbrook’s neighbors to know what the next process is. Councilmember Ostwald stated the last time they had a discussion on this, the permits were brought up and Mr. Westbrook had applied for them and they came back and said they never got the engineering. He asked if they have determined whether there are permits required and have been issued for the deck and the block wall that was put in already. Mr. Hickok replied, the permits are required for a retaining wall that is over 48 inches in height. It is now going to be a step wall. Originally there was a request to get a permit to do something over 48 inches, but it did not have the engineering proposal along with it. That is its purpose now. If the retaining wall on the other side of the driveway were to happen, just in the form it is now being 48-inches high, an engineering proposal would be required. Mr. Hickok said if there is an agreement with the neighbors and they can reduce their reliance on a retaining wall in that area, it can be done. Someone asked if the neighbor already agreed to that. The husband and Mr. Westbrook had a nice discussion some time ago. The wife, however, is very interested in protecting the trees at the top so a plan would have to be made to protect outside the dripline of those trees and grade from that point forward. There would need to be some discussion, but there are a couple of ways to eliminate a lot of the reliance on the retaining walls. Applying for a permit and not getting one had everything to do with not having the engineering along with it. Councilmember Ostwald asked if the decking and the one cinderblock wall that was put up was seen in the photos. Mr. Hickok stated they will make sure that everything is okay on that before they sign off on the project. Moving the project forward is very important. At cursory view it is fine; in fact, it is really well done. Councilmember Ostwald stated he understands moving forward but also understanding the safety of that retaining wall is important as well. FRIDLEY CITY COUNCIL MEETING OF JULY 27, 2020 PAGE 10 Nate Westbrook stated as to the backyard issues, he does not recall exactly what those were from the last meeting. He asked for some clarification as to what those were so he can address them. The boulders have been all hand-moved so far. He has had to dig down to do a trench drain which, when he was at the bottom of the hole, he was at eye level with the top of the driveway. It is a very deep hole, and he had 9 inches all around him. The trying issues were mostly done at night when it was cooler. Mr. Westbrook stated as to the vehicles, his mechanic is now out of the hospital and is just catching up. There are parts there which just have to be installed. He does not know where his mechanic has left off on each vehicle, and he does not want to mess anything up and make it take more time. The vehicles are licensed and registered. Also, it is his understanding if his trailer is connected to his truck, it is legally parked in the street. They are both licensed, registered, and insured. Mr. Westbrook stated as to some of the code enforcement stuff that he and Dan Cahill have been working on, there were issues because when it was first brought to him it did not seem right. There are e-mail trails to prove it all that he was questioning the legitimacy of the claims. He said he does not have any problem complying. If he is trying to be forced to comply with something that is not legal or if it is following some other person’s agenda, he has a problem. That is why he was fighting Mr. Cahill on it. Mr. Westbrook said he is continuing to work on the yard and the boulders. He got most of the things at the bottom of the driveway and in the street cleared today. That was a big plus he was trying to get done for a while. Now the boulders are out of the street and the full width of the driveway can be utilized. Now he has to place the boulders in place with the steps on the side of the hill. He still has plans on continuing to work on all this stuff to get it either thrown or put away, so it is progressively being worked on. Mayor Lund stated it looks like a lot of the grunt work is done other than it is still a big job to put all those boulders up in place. He asked Mr. Westbrook whether he has a bobcat to assist with that? Mr. Westbrook replied, sometimes. If a buddy of his who works for a construction company is able to and his job allows it, he brings it over and lets him use it. If not, he tries to save up and rent a backhoe which he used a few weeks ago. He used a mini excavator to move some of the heavy stuff. Mayor Lund stated he is concerned for Mr. Westbrook’s health and hopes he is using the proper equipment to do the job right, so he is not breaking his back or his hand or whatever. Mr. Westbrook stated everything with this house has been a can of worms. Every single thing. MOTION by Mayor Lund to continue the public hearing to September 14, 2020. Seconded by Councilmember Eggert. FRIDLEY CITY COUNCIL MEETING OF JULY 27, 2020 PAGE 11 UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY AND THE HEARING WAS CONTINUED AT 7:35 P.M. NEW BUSINESS: 7. First Reading of Ordinance No. 1381, Amending the Fridley City Code, Chapter 12, Tobacco Products, Revising Definitions, Licensing Procedures, Prohibited Acts, Administrative Procedures and Violations. Ryan George, Deputy Public Safety Director, stated this item was brought forth at the direction of Council to make sure the Fridley City Code aligned with the regulations of the new federal and state laws which has raised the legal purchasing age of tobacco items to 21 years or older. Also, since they last addressed the City Code for Chapter 12 in 1996, they needed to update the definitions of terms to address tobacco products, tobacco-related devices, electronic delivery devices, tobacco product shops, and flavored tobacco. There are a lot of new products out there on the market now that they need to address. They also wanted to clearly define and address indoor sampling of tobacco products and then limit the sale of flavored tobacco products to tobacco product shops which would begin May 1, 2021. Deputy Director George stated as to limiting the sale of tobacco products to persons age 21 and older, effective December 2019 the federal government raised the legal purchasing age of tobacco from age 18 to 21. Minnesota’s law will change on August 1 to also address that. Local tobacco retailers in Fridley have been complying with the updated federal regulations so nobody at this point is selling to anyone under 21. This proposed amendment would align Fridley City Code with the updated federal requirements. Deputy Director George stated next, they wanted to update the definition of terms within the Cod. Tobacco product has been updated to include all types of tobacco products available for human consumption regardless of the means of ingestion. “Tobacco-related” devices are a new definition which includes all products or components of products designed or intended to be used for the ingestion of tobacco or tobacco products. Deputy Director George stated “Electronic-delivery devices” is also a new definition. It includes all types of devices or components or types of devices that are intended for the delivery of aerosol or vapor for human consumption. Deputy Director George stated “tobacco products shop” is a new definition in the Code. It is consistent with state law as defined by Minn. Stat. § 144.4167 which is the Minnesota Clean Indoor Air Act. It basically states that someone must be 21-years of age or older to enter a tobacco products shop. This shop must also have an entrance door opening directly to the outside. More than 90 percent of gross revenue from a tobacco products shop must come from the sale of tobacco, tobacco-related devices, and all electronic delivery devices. Also, a tobacco products shop cannot include a tobacco department or a section of a business that possesses any type of food, liquor, or restaurant license. FRIDLEY CITY COUNCIL MEETING OF JULY 27, 2020 PAGE 12 Deputy Director George stated “flavored tobacco” is a new definition in the City Code, that would include any tobacco product that contains a taste or aroma other than the taste of tobacco. This includes but it is certainly not limited to menthol, mint, wintergreen, chocolate, vanilla, honey, cocoa, or any candy, dessert, alcoholic beverage, fruit, herb or spice. Deputy Director George stated as to indoor sampling, this would be in accordance with the Minnesota Clean Indoor Air Act. Sampling of tobacco products is allowed only in licensed tobacco products shops as defined by State law and the proposed City Code. Sampling could be allowed in a tobacco products shop if it is connected to the bona fide sale of a tobacco-related device or an electronic delivery device. The product that is being sampled must have been provided by the tobacco products shop on the date and time the sampling occurred. Deputy Director George stated tobacco products shops may not charge a fee for access to or for seating within the indoor area of the tobacco products shop. This would be similar to a hookah lounge. You would not be allowed to charge a fee and you could not be allowed to provide seating for someone who is coming in and smoking. Deputy Director George stated to address the sale of flavored tobacco, it will be limited to tobacco products shops. That refers back to the flavored tobacco and the tobacco products shops definitions within the proposed amendment to Chapter 12. Deputy Director George stated this would become effective May 1, 2021, as all current City of Fridley licenses expire on April 30, 2021. This would take place within the 2021 to 2022 licensing period. Councilmember Bolkcom said the granting of licenses will be switched Clerk to the City Manager designee. She asked why it was changed. Walter Wysopal, City Manager, said one of the things staff wants to do throughout the entire Code is to make the City Manager the point person so he can designate someone. Councilmember Bolkcom referred to page 55, under 12.07(C), “No person shall sell or dispense any tobacco product, tobacco related devices or electronic delivery device through the use of a vending machine, unless the vending machine is electronically activated for each transaction by the licensee or a person in their employ. . . .” In other words, there could be a vending machine for tobacco, but no one can just go up and use it. There has to be an activation by somebody who is actually employed by the place who is selling it, is that correct? Deputy Director George replied, yes, that is correct. You do not see a lot of tobacco vending machines around anymore, and the current Code addresses it and the proposed Code and also state law would make it where somebody cannot access that. If there were to be a tobacco vending machine in any sort of establishment, it would have to be in an area that is only accessible to someone 21 or older. Councilmember Bolkcom asked if someone could work in a tobacco shop if under 21. FRIDLEY CITY COUNCIL MEETING OF JULY 27, 2020 PAGE 13 Deputy Director George replied, he believed you have to be 18 but he is not 100 percent sure. Councilmember Bolkcom asked so she can work in a tobacco shop at 18 and sell it but they have to be 21 to buy it. Deputy Director George replied, he is not 100 percent sure, but he can provide her with that answer. Councilmember Bolkcom referred to page 57, under (G), “The Hearing Examiner shall be an individual trained in law. . . .” She asked if he had to have a degree or be trained in the law. Or “…it shall not be required that the Hearing Examiner be currently licensed to practice law. . . .” Mr. Wysopal replied, that one they had a lot of discussion at the staff level, and they felt that depending on the person whom they would select, they may meet the qualifications to be able to adjudicate this but may not be holding that degree. They may be retired and all kinds of things that would be beneficial for the City to consider. Councilmember Bolkcom referred to page 58, under Violations, so the first violation penalty is $250. If they do not pay that, what happens? Deputy Director George replied typically they have had a violation either of a tobacco compliance check or an alcohol compliance check. There is the civil penalty and then there is a criminal penalty. If there was the civil penalty where somebody elected not to pay and it was a clear violation and went through all the appeals and everything, they could be held criminally liable at that point. They could be issued a citation because it is a crime to provide tobacco products to a minor. Councilmember Bolkcom asked what is the difference between Sections (A) and (B)? The administrative civil penalties. Deputy Director George replied (A) would refer to the administrative civil penalties for individuals. It would be for that particular clerk or whoever it was that provided that product to a person under 21, and (B) would be for the actual licensee. It would be for that tobacco retailer. Councilmember Bolkcom stated she thought there was some conversation they would be getting out of the tobacco business at the liquor stores, but they are going to continue until May because that is when its license expires? Mr. Wysopal stated the Fridley liquor stores are in the process of selling down their entire inventory of tobacco products, and it is his understanding they will not be selling them in several months. Councilmember Eggert said back on page 57, he read about the hearing examiner involved in administrative offenses. He asked if the City currently imposed other administrative offenses. FRIDLEY CITY COUNCIL MEETING OF JULY 27, 2020 PAGE 14 Deputy Director George replied within the City licensing they do have some areas where there are administrative offenses and it all comes down to the compliance checks they do for massage therapy businesses, liquor licensing, tobacco, and charitable gambling. If they were to find violations, there is the potential for criminal penalties and for civil penalties. This is something they have been doing for a long time. Councilmember Eggert asked whether the City has had to use an examiner to deal with any of these. Deputy Director George replied to his knowledge they have not in the 15 years since he started. Councilmember Ostwald asked Deputy Director George, under (G), why are they restricting the flavored tobacco. Just tobacco shops. What is the logic behind that? Tobacco products are tobacco products. He understands the target market and all that kind of thing. However, they do not restrict the type of liquor they sell in the liquor store basically between flavors and things like that. He is curious why they are going that route. Deputy Director George replied referring to the tobacco-flavored products, this was at the direction of the Council back in May. They were asked to look at the flavored tobacco bans that some of the larger cities in Minnesota have taken a look at. He believed the intent behind it was to limit access of these flavored products that are marketed towards youth so they would be in a separate area that would be inaccessible to someone under 21. Councilmember Ostwald asked is there any data that proves or shows that it has hindered any new users of the products over time. Deputy Director George stated he has not done a lot of research on that, aside from anecdotal evidence. Of course, limiting access might have some sort of effect on a juvenile’s ability to access those products. Councilmember Bolkcom stated she knows someone who works on the tobacco ordinance, there are studies, because oftentimes that is how they get started. Councilmember Ostwald stated to target a certain type of tobacco. All tobacco is legal. He understands the marketing side and all that, but are they taking away somebody’s business? It is a legal business and is something they can do. He said he is on board with the whole thing but, if it is a legal product and they have a legal right to sell this product, can they restrict them? Mayor Lund said he agreed and thought it was a good point. It may be overly restrictive because it maybe gives an unfair advantage to tobacco shops vs. all. Policing it is probably a nightmare. Either way. However, they would still have to go into those tobacco shops to see if they are compliant. Councilmember Ostwald has a valid question there, and he is not sure he wants to approve this in its current format. He asked if the flavored tobacco included menthol cigarettes. FRIDLEY CITY COUNCIL MEETING OF JULY 27, 2020 PAGE 15 Deputy Director George replied, as it is written, yes. Mayor Lund stated that is really targeting certain people. They may be reaching the point where they are going to get challenged on that. Maybe that is a question for the City Attorney. Councilmember Bolkcom stated this is statewide and is going to be nationwide, correct? Andrew Biggerstaff, City Attorney, replied under this policy, data has been added a number of times in a number of communities. A majority of the communities have probably adopted this type of approach where you break apart the sales between traditional outlets and these tobacco product shops that are able to sell the second tier of products. He does not want to speak for them, but he believes that idea was conceptualized by the Public Health Law Center which has been the real push behind this at sort of the city level before there was any movement in the state or federal governments. Attorney Biggerstaff stated the ordinance before them is largely crafted on the model ordinance they put together and worked on with a number of communities. These are still valid, local regulation questions, and the City is not required to do these things. Just in his own experience, a majority of cities, especially early action on T-21, seem to go this route of identifying these two types of retailers in determining what could be sold based on what type of license you have. The City would not be alone if it adopted something like this. However, it is probably fair to say there are other communities who have opted not to do it for the reasons that have been raised. The menthol debate has been a big and deep topic. A lot of that happened before the State did anything. A lot of those questions are things they can certainly consider. Mayor Lund stated he understands that what is before them is the ever-tightening use of tobacco in any form. They no longer allow it in any public places or restaurants, etc. This is just another step to at some point maybe totally eliminate it because it is bad for our health. Has this model ordinance been challenged and been successful? Attorney Bigerstaff replied, not that he is aware of. If they think of kind of the landscape, this is really something that sprang up in the last 18 months to two years. Edina was the first city he believed that adopted something like T-21. He does think that ordinance is in the process of being challenged. He does not have firsthand knowledge of that but can certainly look into it. Again, that was before the State did anything. The State taking some action may shore up some of those issues; however, there has been no successful challenges that he is aware of for these types of ordinances. Mayor Lund stated his thought is maybe menthol products being considered with flavored tobacco is not much different. He said he gathered that whole purpose of this was because so many youths have started to use flavored tobacco. He does not like the idea Councilmember Ostwald brought up where the City is promoting business to the tobacco shop and not to the convenience stores. He guessed it is because they are trying not to make them convenient. He does not want to do an unfair advantage to other businesses in that respect, but he is all in favor of trying to limit the illegal use by younger people, and especially the vaping scenario. FRIDLEY CITY COUNCIL MEETING OF JULY 27, 2020 PAGE 16 Councilmember Bolkcom asked if most convenience stores sold flavored tobaccos. Deputy Director George replied a lot of the convenience stores do have the grape flavored, the Swisher Sweets, and all the different chewing tobacco products and cigars, cigarettes—there are a lot of different flavors. Councilmember Bolkcom stated she would like them to find out how many other cities have adopted this because this is not a brand-new ordinance. It might be challenged, but she believes there are a lot of other cities that have very similar ordinances. Mayor Lund stated agreed that is has been adopted in other cities. Mayor Lund said that it has come to his attention that this item should be a public hearing. He said there is a Charter requirement that it can be administrative in changing the law, the age, because federally it has gone to 21. Beyond that it needs a public hearing. He said he would like some clarity on whether this needed to be brought before the Charter Commission to make changes in the City’s Charter. He asked if it was permissible to do this administratively. Attorney Bigerstaff replied, he is not aware of any reason this would need to be brought before the Charter Commission; but they can certainly look into that. The way that cities typically regulate tobacco licenses is through ordinance. As far as he knows, that is what they are proposing to amend now. He does not know that there would be any real requirement. Mayor Lund stated he would really like to know for sure. Not all cities are charter cities. It was brought to his attention, and he wants to make sure it is addressed. He said he would appreciate it if they could provide it at the next meeting if they are moving along with this. Councilmember Bolkcom referred to the third paragraph on page 52 and asked if Mayor Lund does not believe or he does not feel it has to because it says, “According to the City Charter and Minnesota statute, this meeting and first reading do not require a public hearing.” Mayor Lund replied, right. It was brought to his attention. He said he is only looking for clarity. Councilmember Bolkcom asked if they have given notice to all the tobacco license holders. Deputy Director George replied, yes. Written notice was given. Mayor Lund stated he wanted to know if it had been brought before the Charter Commission. He understands here it says it was not, but it was brought up to him, so he is bringing it up. Mayor Lund asked if they are restricting flavored tobacco, the person who spoke to him felt that candy was addictive to some of us too. In other words, they are going too far. FRIDLEY CITY COUNCIL MEETING OF JULY 27, 2020 PAGE 17 Mr. Wysopal stated they received three emails this afternoon after hours that they will include into the packet next time for the City Council. They were two e-mails from residents who had concerns about the flavored tobacco for many of the reasons the Council had been talking about. There is another e-mail from the Association for Non-Smokers of Minnesota raising some questions with regard to the penalty section. They have a memo that Deputy Director George has submitted to him which he will ask him to distribute to the Council. They can pass it along to the Council in the next packet. From what he understands the Council had the majority of concerns with regard to the flavored tobacco and a number of questions with regard to that. It did not appear to him there were other items of great concern for modification in the ordinance that they would look into between now and the next meeting. Mayor Lund stated that is a fair assumption from the discussion. Mr. Wysopal stated and of course the one on protocol with regard to the Charter Commission. Jack Ayim, Association for Non-Smokers, stated the e-mail that had been referred to is from his association. They advocate for tobacco prevention basically. Whatever that e-mail says, that is why he is here. Restrict tobacco to adult only stores. That question has been raised, and the reason that is being done is because they are trying to reduce access to the youth. If they move flavored tobacco to adult only stores, then youth will not be able to access them at the other stores. Why only flavored tobacco-flavored products? That is generally how the youth start smoking. Mr. Ayim stated they also advocate for removal of the penalty for possession. The reason they advocate for removal of that is they do not want to penalize those who possess, use, or purchase tobacco products. They try to have that accountability moved to the retailers instead of the user. The reason that is being done is they are trying to remove the law enforcement from interaction with youth who are doing this. Particularly when it comes to the minority. They would like to have the retailer be responsible when it comes to selling the product as opposed to punishing the youth. Mayor Lund said if there is a violation, there is one for the licensee, the person selling it, and then one for the person who is illegally buying the product so both the individual and the retailer get a fine. Mr. Ayim stated the only comment is if the buyer is trying to use an illegally acquired ID that is the only time the buyer should be penalized, but in other cases the buyer should not be penalized. It is the retailer’s responsibility to make sure whoever they are selling to is above the age of 21. Mayor Lund stated he misspoke. In here the penalty is for the individual. It is the employee working for the establishment. So, both the establishment and the employee are subject to fines. Not necessarily the individual buying it. That is pretty fair quite frankly. However, they do stress when there is a violation that the employer must educate their employees. They should have some education processes in place. They have to be responsible enough to make sure the employees understand the ramifications. That is appropriate. FRIDLEY CITY COUNCIL MEETING OF JULY 27, 2020 PAGE 18 Mr. Ayim stated cities are designing differently. Some have put the button on the employees, some on the employer. Mayor Lund stated they have done this in the past. It is not really anything new. Councilmember Bolkcom stated they do it with the alcohol compliance. Councilmember Bolkcom stated it would be worthwhile to reach out to Emily Anderson who is the director of policy for the Association for Non-Smokers. It might be worthwhile for the City Manager and City Attorney to reach out to them and answer their questions, since they have done a fair amount of work throughout the community. MOTION by Councilmember Bolkcom to waive the reading of the ordinance and adopt Ordinance No. 1381 on first reading. Seconded by Councilmember Eggert. Mayor Lund stated there will be some information provided to them arising from the questions asked tonight, and they will be talking about that at the second reading. Councilmember Bolkcom stated it would be helpful to look at other cities. She asked whether they drafted this according to other cities? Deputy Director George replied, yes, they did look at what other cities around them are doing. They did borrow a lot of language and tried to be consistent with the neighboring cities. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. 8. Informal Status Reports. None. ADJOURN: MOTION by Councilmember Ostwald, seconded by Councilmember Eggert, to adjourn. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY AND THE MEETING ADJOURNED AT 8:26 P.M. Respectfully submitted by, Denise M. Johnson Scott J. Lund Recording Secretary Mayor