July 26, 2004

Don Malinsky, United Methodist Church, offered a prayer.

The regular meeting of the Albert Lea City Council was called to order at 7:00 P.M. in the City Center Council Chambers by Mayor Jean Eaton.

ROLL CALL

Present were Councilors Warren Amundson, Randy Erdman, George Marin, Jeff Fjelstad, Mary Kron, Al Brooks and Mayor Jean Eaton.  Also present were City Manager Victoria Simonsen, Public Works Director Steve Jahnke, City Attorney Steve Schwab, Council Secretary Sandi Behrens and representatives from KATE Radio, the Albert Lea Tribune and KAAL-TV.

The Pledge of Allegiance was recited.

CONSENT AGENDA

(a)               APPROVAL OF THE MINUTES FROM THE COUNCIL MEETING OF JULY 12, 2004

(b)               LICENSES APPROVED:

ANNUAL LICENSES

                 TEMPORARY LICENSES

(c)               RESOLUTION 04-160 ADOPTED – CALLING A PUBLIC HEARING FOR AGILIS COMPANY BUSINESS SUBSIDY GRANT:  Resolution 04-160 calls for a public hearing on August 22, 2004 to consider a business subsidy grant for Agilis Co.

(See Secretary's Original Resolution 04-160 included with these minutes.)

(d)               RESOLUTION 04-161 ADOPTED – CALLING A PUBLIC HEARING FOR MISCELLANEOUS ASSESSMENT ROLL 47:  Resolution 04-161 calls for a public hearing on August 22, 2004 to consider the adoption of Miscellaneous Assessments Roll 47.

(See Secretary’s Original Resolution 04-161 included with these minutes)

(e)               RESOLUTION 04-162 ADOPTED – CLAIMS:  Resolution 04-162 presents the financial claims of the City.

(See Secretary’s Original Resolution 04-162 included with these minutes)

Councilor Amundson moved, Councilor Marin seconded, that the consent agenda items be adopted.  On roll call vote, all councilors voted in favor of said motion.  Mayor Eaton declared the motion carried and the consent agenda items adopted.

HOT SHOTS LIQUOR LICENSE REVOCATION - PUBLIC HEARING

Mayor Eaton opened a continued public hearing for the revocation of the Hot Shots Bar & Grill intoxicating liquor licenses.  The necessary notice for this hearing was published on July 15, 2004.

City Manager Victoria Simonsen explained that this hearing is a continuation from the July 12 meeting in which the owner of Hot Shots requested a continuation of the hearing to revoke his liquor license.  She reported that Hot Shots has been closed since July 12.

City Attorney Schwab read the stipulated facts given to the Council prior to the meeting setting forth the history of violations and penalties over the previous two years.

Tom Baudler, representing Tim Iverson, the owner of Hot Shots Bar & Grill, told the Council that the bar is Mr. Iverson’s livelihood and each charge stemmed from a minor consuming alcohol in the bar.  The reports don’t say that Mr. Iverson or his bartender served the liquor.  Mr. Baudler cited the statute and City ordinance dealing with violations, charges and penalties and noted that the City had failed to meet any one of the five charges listed for revocation of a license.  Mr. Baudler noted that in two cases the bartender was guilty of serving to a minor and in both cases the bartender was fired.  He explained that the bar owner can’t be responsible for someone of legal age providing liquor to a minor.  In the fourth incident, an ID was presented but police couldn’t locate the ID.  He pointed out a headline in the newspaper which discussed the quality of fake ID’s.  In each of the cases, Iverson has fired the bartenders and/or taken remedial action.  Mr. Iverson did not violate a rule, statute or ordinance in the fourth incident.  Mr. Baudler asked that Mr. Iverson be given another chance.

The City Attorney responded that he has a problem with Mr. Baudler’s rationale, if the Council accepts the bartender serving is guilty, the minor is guilty and the adult providing the minor is guilty, the bar owner would never be responsible.  He explained that the bartender is responsible to the bar owner and the bar owner is ultimately responsible for conduct in his business.  In speaking with Mr. Baudler, he indicated that we were being a little severe with our request for revocation.  Mr. Schwab told the Council that he had spoken with the Minnetonka City Attorney.  Minnetonka has a very specific policy relating to violations.  If the bar has four violations in three years, the license is revoked.

Baudler commented that it is good that there is no established policy, a fourth violation for one bar owner may not be as severe as a violation for another bar owner.  He noted that the City Attorney had told him that revocation is left to the City Council.  He agreed that the bar owner is ultimately responsible and that Mr. Iverson had fired the individuals involved in the illegal sales. 

Council comment included a question of Baudler’s position for penalty, a discussion of keeping minors out of the bar, a  desire to prevent the sale of food, a need for the bar owner to be on the premises and the fact that Iverson is ultimately responsible for the conduct in his bar.  He suggested face-to-face sales and noted that the Council can do as it pleases.  The Council can set parameters, require face-to-face sales, revoke or penalize in some other manner.

Shannon Risnes, Eagle Lake, told the Council that she has worked for Mr. Iverson for seven months and that he was very strict with the employees regarding sales to minors.  The employees were instructed to check ID’s and Mr. Iverson had even hired a bouncer to check ID’s.  She asked why the employees were never penalized.  She felt revocation was unfair to Mr. Iverson.

Discussion included whether any other bars had received four violations, what are the penalties placed on owners caught serving to minors and whether any violations occurred as a result of a sting.  Schwab explained that we are in uncharted territory with this issue as we have never had a bar with four violations.  He checked with out cities to determine whether we were out of line in requesting revocation.  In the previous violation, we agreed to closure for four weeks and he was warned that if he received another violation, we would take the issue to the Council for revocation.

Carol Jolly, 1113 South Newton, stated that she was at the bar when the latest incident occurred.   The ID provided by the minor was scanned.  She reiterated Ms. Risnes' comment that Mr. Iverson was very strict about sales to minors.  She noted that the first three violations were legitimate but that the last one was not.  The bartender had checked the ID and the police recognized the individual as a minor.  Two of the violations cited were legitimate but the other two were unfair.

Questions were raised relating to problems observed in other bars and the fact that perhaps police are targeting Hot Shots.

Phil Bartusek, a lieutenant with the Albert Lea Police Department, responded that the Police Department does compliance checks twice a year and has never had a bar with four violations.  He also noted that the Police Department doesn’t target any business but bar checks are conducted almost every weekend.  They don’t see the numbers of violations coming out of this bar in any other establishment.  If the Police Department receives a complaint, they follow up on it.

Councilor Fjelstad questioned Mr. Baudler on whether the bar would survive if the Council put Mr. Iverson on a year’s probation, closed him for 30 days and charged him $1000 penalty.  Mr. Baudler responded that he didn’t know but that it would be close.  The Mayor asked Mr. Baudler where his client is tonight and Mr. Baudler responded that he didn’t know.  He appeared representing Mr. Iverson.

Additional discussion ensued relating to Mr. Iverson’s food license and the results achieved through that action.  Mr. Baudler noted that Mr. Iverson had stated that food is not a big issue with him; he didn’t have many sales of food. 

Jerry Clark, 615 Larimore Circle, told the Council that he has known Mr. Iverson for four or five years.   Mr. Clark owned a bar in Minneapolis and admitted that it is a tough business.  He explained that it is difficult to own a bar and noted that Mr. Iverson moved into the back of the bar to save money.  He feels that Mr. Iverson is doing everything he can to make this business work.

Councilor Brooks asked about previous penalties and at what point the issue is brought to the Council.  Councilor Amundson noted that he assumed the Council was considering revocation, not an alternative penalty.  Schwab replied that the Council can do as it wishes.

City Attorney Schwab explained that he and the City Clerk work with the bar owners and go through a step process.  Each violation results in a more severe penalty.  Mr. Iverson agreed to a penalty of closure for one month as a result of the most recent violation.  If we wouldn’t have been able to reach agreement, the license would have been brought to the Council for action.  This is the point in the timeframe where the license comes before the Council for penalty.  He noted that Mr. Iverson was informed after the third violation that if another violation occurs that he and the City Clerk would be recommending revocation of the liquor license.

Councilor Erdman moved, Councilor Kron seconded, that Mr. Iverson’s food license be taken away, that he be put on probation for six months and that if one violation occurs during that six month period that Mr. Iverson would lose his license permanently. 

Additional discussion center around the possibility of restricting patrons to over 21 at the bar and the fact that the legal age to be in a bar is 18 and that it is up to the owner to prevent minors from entering the establishment.  Mr. Baudler told the Council that they could make it a condition that customers be over 21.

Councilor Erdman amended his motion to include a provision that no one under 21 be permitted on the premises.   

Mr. Baudler told the Council that they could make it a condition of his license that he surrender his food license.  Cutting out the meals will pretty much take care of the under 21 group.  The Council was reminded that the City no longer controls food licenses and that these are now a State responsibility.  City Manager Simonsen told the Council that Mr. Iverson could voluntarily surrender his license.  Additional discussion included scanning driver’s licenses and individuals providing fake ID’s.  Mayor Eaton commented that the decision made here is a precedent setting measure and that other bar owners are probably watching the action closely.

Mayor Eaton restated the motion that Mr. Iverson willingly surrender his food license, that the bar patrons be limited to individuals 21 and over, that he be put on probation for six months and that if one violation occurs during that six month period that Mr. Iverson would lose his license permanently.  Councilor Marin asked Councilors Erdman and Kron to amend the motion to a one year probation.  Councilor Amundson asked whether the food license would be surrendered for probation only or permanently.

Councilor Erdman withdrew his motion and Councilor Kron withdrew her second.

Councilor Marin moved that the bar be required to surrender the food license voluntarily, one year probation with one violation during the one year period resulting in automatic revocation. Councilor Kron seconded the motion.  On roll call vote, Councilors Erdman, Marin and Kron voted in favor of the motion with Councilors Amundson, Brooks and Mayor Eaton voting nay and Councilor Fjelstad abstaining.  Mayor Eaton declared a tie vote and the motion defeated.

City Attorney Schwab told the Council that he had no objection to the motion but that a two week closure for the fourth violation is not sufficient considering that he agreed to a four week closure for his third violation.  If the Council takes no action, then there will be no penalty.

Carol Jolly, 1113 South Newton, told the Council that with the loss of the food license Mr. Iverson will be forced to close on Sunday.

Councilor Brooks expressed his opinion that the permanent food license revocation penalty appears a little severe.

Miles Pechacek, 324 East William, suggested as a point of order that someone should withdraw the last motion.  Mayor Eaton explained that it was a tie vote and it didn’t pass.

City Manager Simonsen suggested that he be permitted to keep his food license but require that it be a 21 and over bar.  Councilor Marin noted that this would be less penalty than the one for the third violation.

Jerry Katzenmeyer, 115 East Hawthorne, suggested the Council make the food license revocation for one year and if his probation is completed without a violation permit him to regain his food license.

Shannon Risnes, Eagle Lake, suggested closing him down for two additional weeks, one year probation and let him keep his food license.

Ron Gabrielson, 2007 Wilby Circle, says that state law permits 18 year olds in bars and asked about retirement parties, birthdays, baptism, etc.  The City can’t override a State Statute and make it more stringent.

Councilor Brooks moved to extend the closing for two more weeks and if it comes up again we have no reason to continue the license.  Councilor Kron seconded the motion.   City Manager reminded the Council that Mr. Iverson was told by the City Clerk and City Attorney that if another violation occurred that we would request revocation so Mr. Iverson was aware that this action was forthcoming.  Councilor Fjelstad suggested some guidelines be prepared so everyone knows what the penalties are.   Councilor Amundson noted that this action will probably close him down and that the Council is setting a precedent by its action. On roll call vote, Councilors Erdman, Kron and Brooks voted in favor of the motion with Councilors Amundson, Marin and Mayor Eaton voting nay.  Councilor Fjelstad abstained.  Mayor Eaton declared a tie vote and the motion defeated.

Lt. Bartusek noted that the Council is setting a precedent by allowing a fifth violation.  He asked whether this is the message the Council wants to send to other liquor retailers.

Counselor Baudler reminded the Council that the bartenders served the minors and noted that the Minnetonka policy is not the norm.

After additional discussion, Councilor Amundson suggested the Council send a message that four violations are enough and moved to revoke the liquor license.  Councilor Marin seconded the motion.  On roll call vote, Councilors Amundson, Marin and Mayor Eaton voted in favor of the motion with Councilors Erdman, Kron and Brooks voting nay.  Councilor Fjelstad abstained.  Mayor Eaton declared a tie vote and the motion defeated. 

City Manager Simonsen told the Council that the item could be continued to the next meeting to give the Council more time to consider this question and it would allow two more weeks closure.  The City Staff could use the additional time to prepare a written policy for Council consideration.  She suggested the Council think about an additional two weeks closure, a fine and probation.

Councilor Amundson moved to order an additional two weeks closure, $1000 fine, voluntarily give up his food license for one year and if another violation occurs during this one year probation that the license be revoked.  City Attorney Schwab told the Council that he had been talking with Mr. Baudler and that they suggested closing an additional two weeks, $500 fine, voluntarily surrendering the food license for one year and automatic revocation if a liquor violation occurs within the one year probationary period.  Councilor Amundson amended his motion to change the fine from $1000 to $500.  Councilor Kron seconded the motion. 

On roll call vote, Councilors Amundson, Erdman, Kron and Brooks voted in favor of the motion.  Councilor Marin and Mayor Eaton voted nay and Councilor Fjelstad abstained.  Mayor Eaton declared the motion carried and the penalty imposed.

A question was raised by City Manager Simonsen whether the motion goes with the business if Mr. Iverson sells it and it was the consensus of the Council that it would.

RESOLUTION 04-163 ADOPTED – ORDERING JOB 0409 – PUBLIC HEARING

City Manager Simonsen explained that this is a public hearing to allow public input into Job 0409, the 2004 mill, overlay, curb replacement and sidewalk replacement project in the Third and Sixth Wards.  She noted that an informational meeting was held on July 15 to give residents an overview of the project and an opportunity to voice their concerns and comments about the project.  She commented that all residents have been sent an estimate of the assessments to be charged against their property and that the infrastructure to be replaced is nearly 40 years old.  The total cost of the project is $744,857.22 and if approved, the project is expected to begin in mid-August and conclude in early October.

Mayor Eaton opened the public hearing for comment.  The necessary notice for this hearing was published on July 5, 2004.

Arnold Schember, 210 McArthur Drive, asked if his neighbor would be permitted to keep the additional drive cut to be used for additional parking.  City Engineer Jahnke replied that she would.

Raj Bhikha, Bel-Aire Motel, complained that he is being charged for the street behind his motel and felt that this is unfair.  He has blocked off any access to Lynwood.  He is requesting that he be given a discount for this street.  City Engineer Jahnke told the Council that he is receiving the normal 35 percent side lot credit for Lynwood. 

Councilor Marin noted that this is a very heavy assessment for this property and that occupancy has steadily declined since Bhikha assumed ownership of the motel. 

Council discussion centered around other commercial properties included in the project and receiving a side yard credit.

Councilor Brooks asked City Engineer Jahnke if he had heard anything about replacement of sidewalks on Academy and Manor.  Mr. Jahnke replied that the neighbors had not contacted him.

Jenny Fitzlaff, 1910 Bellview Lane, expressed her feeling that this is a very expensive project. 

Councilor Marin questioned whether the issue of curbing on Capital Lane was settled and Jahnke replied that it has been settled.

Councilor Brooks noted that only one homeowner on Manor had not been contacted but all of the other homeowners want the sidewalk removed.

Councilor Marin moved to grant this property a 70 percent side lot credit for Lynwood.  Councilor Kron seconded the motion.  On roll call vote, all Councilors voted in favor of said motion with the exception of Councilor Brooks who voted nay.  Mayor Eaton declared the motion carried and the credit applied.

Councilor Brooks moved, Councilor Erdman seconded, that Job 0409 be ordered.  On roll call vote, all Councilors voted in favor of said motion.  Mayor Eaton declared the motion carried, the project ordered and the public hearing closed.

(See Secretary’s Original Resolution 04-163 included with these minutes.)

INTOXICATING LIQUOR LICENSES RENEWED – PUBLIC HEARING

Mayor Eaton opened a public hearing for the renewal of intoxicating liquor licenses.  The necessary notice for this hearing was published on July 16, 2004.

Councilor Amundson moved, Councilor Brooks seconded, that the intoxicating liquor licenses submitted for renewal as follows be approved with the exception of Hot Shots Sunday Liquor License.  On roll call vote, all Councilors voted in favor of said motion.  Mayor Eaton declared the motion carried, the renewals approved and the public hearing closed.

2004-2005 ON-SALE INTOXICATING LIQUOR  (expiring  8/31/05)

2004-2005 SUNDAY ON-SALE INTOXICATING LIQUOR (expiring 8/31/05)                                                           

AFL-CIO                                                         Green Lea Golf Course

Albert Lea Golf Club                                       Green Mill

Applebee’s                                                      Harold’s Bar & Restaurant

Café Don’L North                                            Jaxx Pub & Grub                

Casa Zamora Restaurant                              Moose Lodge

Dillan’s Restaurant                                         Mexico Lindo

Eagles Lodge                                                 Nasty Habit        

Elks Lodge                                                     Tienda Mexico  

2004-2005 CLUB ON-SALE INTOXICATING LIQUOR (expiring 8/31/2005)

AFL-CIO Union Club, Inc.                              Knights of Columbus Lodge 1590

d/b/a AFL/CIO Union Club                             d/b/a Knights of Columbus

404 East Main Street                                     1002 South Broadway, P. O. Box 861

Albert Lea, MN   56007                                   Albert Lea, MN   56007

American Legion                                            Loyal Order of Moose Lodge 1703

Leo Carey Post #56                                       d/b/a Albert Lea Moose Club

142 North Broadway                                       328 Main Court

Albert Lea, MN   56007                                    Albert Lea, MN   56007

Fraternal Order of Eagles                               BPOE Lodge 813

Aerie 2258                                                       d/b/a Elks Lodge

d/b/a Eagles Club                                           1811 Southeast Broadway

205 West William, Box 607                             Albert Lea, MN   56007

Albert Lea, MN   56007     

2004-2005 OFF-SALE INTOXICATING LIQUOR (expiring 8/31/2005)

Hy-Vee, Inc.                                                     Freeman Family of Albert Lea, Inc.

d/b/a Hy-Vee Wine & Spirits                            d/b/a Fountain Warehouse Liquor

2708 Bridge Avenue                                        160 Bridge Avenue

Albert Lea, MN 56007                                      Albert Lea, MN   56007

Cheers Liquor, LLC                                         J & B of Albert Lea, Inc.                                     

d/b/a Cheers                                                    d/b/a Southtown Liquor                         

1617 West Main St.                                          1018 South Broadway                          

Albert Lea, MN 56007                                        Albert Lea, MN   56007 

R & B LLC                                                                                 

d/b/a Liquor Depot                                                   

606 South Broadway                                                      

Albert Lea, MN 56007                        

2004-2005 WINE ON-SALE (expiring 8/31/2005)

China Restaurant of Albert Lea, Inc.                Gwendolynn J. Reiss

d/b/a China Restaurant                                    d/b/a Turtle Dove Tea House and Gardens  

805 East Main Street                                        510 West Main Street 

Albert Lea, MN 56007                                       Albert Lea, MN   56007             

FOLLOW-UP ITEMS FROM PUBLIC CONCERNS

City Manager Simonsen reported on previous public concerns as follows:

1.       The missing flags have been replaced on Broadway.

2.       Lakeshore crumbling on Edgewater Drive is being addressed and will be corrected.

3.       Regarding the public dock near the fountains, the staff and some of the Council have concerns for safety of pedestrians crossing Bridge Avenue to that site and noted that there is a crosswalk a short distance from that site.

4.       Parking enforcement near the Freeborn County building will be addressed by the Police Department.

5.       Awaiting MNDOT approval for removal of the handicap sign near the Knights of Columbus building.

6.       The property at 800 East Eighth Street has been inspected, the property has been mowed and the trash removed.

7.       Sound barriers adjacent to Oak Knoll Subdivision are a MNDOT/federal issue.

8.       Relating to the properties in Dawn Acres not being connected to City sewer and water, the property owners have been notified that they must connect by October 31.

9.       The Stevens Road ditch is being filled without a permit and staff will keep this area under observation.

10.   Relating to the goose problem on the walking path, plantings are being placed along the path to deter the geese from coming ashore in that area.

PUBLIC ITEMS

Raj Bhikha, Bel-Aire Motel, noted that there is tall grass in the ditch along Highway 69 and suggested someone come in with a trimmer and cut it.

Roger Bok, 1012 Cato Drive, suggested we quit feeding the geese.  Ms. Simonsen noted that we are installing a universal sign to request that people not feed the geese.  Bok suggested the City send the Fire Department down to wash off the goose droppings.  He also noted that there is a dead skunk near Trumbles and that the one on Front Street had been picked up.

REQUEST TO USE TRANSFER STATION GRANTED

Karen Mehle, Community Mentor Connection, explained that they will again be doing a lake clean up service project this year and requested permission to deposit collected garbage at the Transfer Station free of charge.

Councilor Marin moved, Councilor Brooks seconded, that the Community Mentor Connection be given permission to dump garbage at the Transfer Station free of charge.  On roll call vote, all Councilors voted in favor of said motion.  Mayor Eaton declared the motion carried and permission granted.

REQUEST TO CLOSE WATER STREET GRANTED

Heather Earl of the Celebrate Albert Lea group requested Council authorization to close Water Street from Broadway to Washington on Saturday, August 28, from 8 a.m. to approximately 1 p.m. to permit activities associated with Celebrate Albert Lea.

Councilor Erdman moved, Councilor Kron seconded, that the request to close Water Street be approved.  On roll call vote, all Councilors voted in favor of said motion.  Mayor Eaton declared the motion carried and the request granted.

APPOINTMENT TO THE BOARD OF ZONING APPEALS 

Mayor Eaton requested confirmation of her appointment of Mr. Corry McDermott to replace Ralph Olson on the Board of Zoning Appeals.

Councilor Marin moved, Councilor Brooks seconded, that the appointment be confirmed.  On roll call vote, all Councilors voted in favor of said motion.  Mayor Eaton declared the motion carried and the appointment confirmed.

RESOLUTION 04-164 ADOPTED – APPOINTING ELECTION JUDGES

City Manager Simonsen explained that Minnesota Statutes require that election judges in a municipality shall be appointed by the governing body.  The City Clerk is required to furnish the elected officials with a list of appropriate names from each major political party for each election precinct.

Councilor Brooks moved, Councilor Kron seconded, that Resolution 04-164, appointing election judges for the 2004 elections, be approved.  On roll call vote, all Councilors voted in favor of the motion.  Mayor Eaton declared the motion carried and