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HomeMy WebLinkAboutMINUTES-11/17/2009-RegularNovember 17, 2009 COUNCIL OF THE CITY OF FORT COLLINS, COLORADO Council -Manager Form of Government Regular Meeting - 6:00 p.m. A regular meeting of the Council of the City of Fort Collins was held on Tuesday, November 17,' 2009, at 6:00 p.m. in the Council Chambers of the City of Fort Collins City Hall. Roll Call was answered by the following Councilmembers: Hutchinson, Kottwitz, Manvel, Ohlson, Poppaw, Roy, and. Troxell. Staff Members Present: Atteberry, Krajicek, Roy. Mayor Hutchinson stated the public hearing for the pilot trash district, originally scheduled for this evening, had been postponed. The negotiation process with the trash hauler was more extensive than was anticipated. Negotiations are not yet completed and not all the information is available that was to be provided at the public hearing. The hearing will be rescheduled once all the negotiations are completed and the information is available. Council must consider a Resolution on December 1 to extend the original deadline. Matt Robbins, Community Relations Specialist with the Colorado Lottery, presented the 2009 Starburst Conservation Award for Soapstone Prairie Natural Area. The award recognizes excellence in the use of lottery funds that promote community building, partnership, conservation and commitment to the recreational needs of Colorado residents. Citizen Participation Eric Sutherland, 631LaPorte, stated concerns with the loan made to the Urban Renewal Authority for the RM12 project. He stated he has submitted'a complaint to the District Attorney asking the URA be required to refund the money to the City. Eric Kronwall, 1613 Barnwood Drive, stated much confusion exists among the city's landlords regarding enforcement of the occupancy ordinance. He did not believe rental registration or rental licensing would clear up the confusion that the occupancy limits have caused. Steve Levinger, 259 South College Avenue, Fort Collins Innkeepers Association President, stated his Association is concerned that allowing City facilities to acquire liquor licenses will give the facilities an unfair advantage over private banquet'and catering businesses. Jackie Adolph, Fort Collins resident, Coloradoans Against Resource Destruction, stated her group opposes in situ uranium mining proposed for Nunn, Colorado. She urged support for HB I I6J, November 17, 2009 Vivian Armendariz, 820 Merganser Drive, stated no one should deny that domestic violence happens in many homes. Transfort held a public hearing regarding changes to Route 16, but public notification was very limited and should have been.posted on Dial -A -Ride buses. The hearing was held at an inconvenient time and location. Motorists do not treat wheelchairs as pedestrians and more enforcement is needed to protect wheelchair users. Businesses need to remove snow from their storefronts. Doug Keasling, 217 Orilla Del Lago, expressed concerns about allowing the City to acquire a liquor license at the Northside Aztlan Community Center because it is an inappropriate location for the sale of alcohol and the City should not be in competition with private venues. John Dickson, Fort Collins resident, opposed the proposed uranium mine that would be located only ten miles from Fort Collins. Stacy Lynne, 216 Park Street, thanked the staff at Northside Aztlan Community Center for providing excellent service. She stated concerns with the proposed pilot trash district and with the disposal of CFL lights. Monte Barry, 415 South Howes, stated police cars should not be used on the City's trails. Allowing wheelchairs to use bike lanes when necessary was a good decision by Council. Bruce Lockhart, 2500 East Harmony, stated the negotiations for the pilot trash district should be made public. Citizen Participation Follow-up Josh Birks, Economic Advisor, stated the City is providing approximately 75% the funding to construct the RM12 project. Staff and Council discussed the risks and costs associated with the loan at the time the URA Board approved the loan. The Master Covenant, First Right of Refusal, and First Right of Offer are some of the signed documents that protect the City's interests and ensure the facility will be use for economic development purposes. City Attorney Roy stated the Legal Investments Act does not preclude the financial arrangement from the City's perspective because the Act expressly acknowledges the power of a home -ruled city to invest any public funds as permitted by ordinance of the Council. The RM12 appropriation was approved by ordinance. The loan can also be viewed as an expenditure supported by a public purpose. Both of these reasons justify the City's role in the transaction. The proper analysis of the URA loan is not as an investment. The URA powers are not limited to investing but are broadly worded in the statute that spells out the powers of urban renewal authorities to carry out urban renewal projects in urban renewal areas. The loan to RM12 is permissible under the Urban Renewal statute in the same way an outright acquisition of property within a project is permissible as a way for the Urban Renewal Authority to redevelop properties contained with the area. Councilmember Troxell stated the hearing for the pilot trash district should be held as a question and answer forum so Council can listen to citizens and questions can be answered. November 17, 2009 Councilmember Poppaw thanked the citizens speaking out against uranium mining. Agenda Review City Manager Atteberry stated there were no changes to the published Agenda. Steve Levinger, 259 South College, pulled Item #17, Resolution 2009-104 Authorizing the City Manager to Apply for Liquor Licenses on Behalf of the City. Eric Sutherland, 631 LaPorte, pulled Item #8 Second Reading of Ordinance No. 121, 2009, Amending Chapter 26 Article .W of the City Code Relating to Utility Billing Errors. - Stacy Lynne, 216 Park Street and Bruce Lockhart, 2500 East Harmony, pulled Item #7 Second Reading of Ordinance No. 120, 2009, Appropriating Unanticipated Revenue in the General Fund for the Natural Resources Energy Efficiency Community Block Grant. CONSENT CALENDAR 6. Consideration and Approval of the Minutes of the September 29 2009 Special Meeting and the October 6 Regular Meeting Second Reading of Ordinance No. 120, 2009 Appropriating Unanticipated Revenue in the General Fund for the Natural Resources Energy Efficiency. Community Block Grant This Ordinance, unanimously adopted on First Reading on November 3, 2009, appropriates $1,307,900, received by the City under a Energy Efficiency and Conservation Block Grant (EECBG) Program. Second Reading of Ordinance No. 121 2009 Amending Chapter 26 Article XII of the City Code Relating to Utility Billing Errors: This Ordinance; unanimously adopted on First Reading on November 3, 2009, codifies the Utilities' current administrative policy which addresses utility billing errors. When a customer is overcharged, the Utilities will refund the customer the overcharge for a period not to exceed six years from the time the error is discovered. If a customer is undercharged for services received, the Utility will back bill the customer only if the undercharges occurred less than six years before the date the error is discovered and either the undercharges are for a minimal amount or the customer could not have discovered the error with reasonable inquiry. No interest will be paid or collected. 9. Second Reading of Ordinance No 122 2009 Repealing Ordinance No 007 1975 Relating to the Security of Buildings and Businesses in the Cites November 17, 2009 This Ordinance, unanimously adopted on First Reading on November 3, 2009, repeals Ordinance No. 007, 1975, which is now obsolete. Ordinance No. 007,1975, required the Police Department to maintain a register of all commercial buildings and businesses in the city, including emergency contact information for a designated representative for each business and building, and compelled property and business owners to cooperate by providing information. Currently, such information is gathered and maintained by the Poudre Fire Authority as a part of its building inspection program. 10. Second Reading of Ordinance No. 123, 2009, Adopting a Fee Schedule for Grandview and Roselawn Cemeteries and Amending the Rules and Regulations Governing Grandview and Roselawn Cemeteries to Add the Fee Schedule. This Ordinance, unanimously adopted on First Reading on November 3, 2009, amends the Rules and Regulations Governing Grandview and Roselawn Cemeteries to add a list of the amounts of fees for 2010 and 2011, and to specify that in future years fees will be increased based on the Denver -Boulder -Greeley Consumer Price Index for all Urban Consumers (CPI- U). If in any year the CPI-U does not increase, fees will remain unchanged for the year. 11. Second Reading of Ordinance No. 124, 2009, Amending the Zoning Map of the City of Fort Collins by Changing the Zoning Classification for that Certain Real Property Known as the Mountain Vista Subarea Plan Rezoning. This Ordinance, unanimously adopted on First Reading on November 3, 2009, rezones six areas within the Mountain Vista subarea. These involve adjustments to the size and location of Industrial, Employment, Community Commercial, Medium Density Mixed -Use Neighborhoods, Low Density Mixed -Use Neighborhoods, and Transition Zone Districts. The proposed rezoning changes are consistent with the City Structure Plan. 12. Second Reading of Ordinance No. 125, 2009, Authorizing the Appropriation of 2010 Fiscal Year Operating and Capital Improvement Funds for the Fort Collins -Loveland Municipal Airport. The 2010 annual operating budget for the Airport totals $711,600, and will be funded from Airport operating revenues, contributions from the Cities of Fort Collins and Loveland ($85,000 from each city), and interest earnings. This Ordinance, unanimously adopted on First Reading on November 3, 2009, appropriates the City of Fort Collins' contribution, which is a 50% share of the 2010 Airport budget and totals $355,800. This Ordinance also appropriates the City of Fort Collins' 50% share of capital funds, totaling $608,500 for the Airport from federal and state grants; contributions from Fort Collins and Loveland; and the Airport General Fund. The 2010 Airport capital funds, totaling $1,217,000, will be used to continue runway improvements. 13. First Reading of Ordinance No.126, 2009, Appropriating Prior Year Reserves in the General Employees' Retirement Plan. 4 November 17, 2009 The City Council created the General Employees' Retirement Plan in 1971 to provide a retirement benefit in addition to the Social Security system. Oversight is provided by a six - member Committee, five of whom are appointed by Council, the other being the Financial Officer. The single -sum benefit, approved by City Council in 1998, is designed to be actuarially, neutral to the Plan. When an employee elects to receive a lump sum amount from the Plan, the liability of providing a future pension benefit to the employee is removed from the Plan. Although actuarially neutral, voluntary elections of single sum payments reduce the uncertainty regarding the number of employees for whom the Plan must provide an income over an unknown period of years. From that standpoint, lump sum payments are considered financially favorable. 14. Items Relating to Fossil Creek Reservoir Area. A. Resolution 2009-102 Authorizing an Amended and Restated Intergovernmental Agreement with Larimer County Concerning the Fossil Creek Reservoir Area Property. B. First Reading of Ordinance No. 127, 2009, Authorizing the Sublease to Larimer County of Portions of the Fossil Creek Reservoir Property Leased by the City from North Poudre Irrigation Company. This amended and restated Intergovernmental Agreement (IGA) summarizes the original IGA and the two previous amendments into a single document. It also changes the Agreement to allow the County the right to continue as a managing entity while also requiring the City to assume certain management and operation responsibilities. The new sublease between the City and County will allow the County the ability to continue enforcing County regulations on the south shore of the Fossil Creek Reservoir. 15. First Reading of Ordinance No.129, 2009, Authorizing the Conveyance of a Temporary Construction Easement on Cathy Fromme Prairie Natural Area to Larimer County for the Fossil Creek Restoration Project. The Larimer County Engineering Department is working on the Fossil Creek Restoration Project, designed to restore a portion of the existing Fossif Creek Channel. In 1972, approximately 1,300 feet of Fossil Creek was shifted to its current location in order to facilitate the operation of the Landfill. The current location of the Channel is on the Larimer, County Landfill property, just south of the boundary of Cathy Fromme Prairie Natural Area. This section of Fossil Creek has eroded downward as much as 12 feet and is beginning to widen due to continued erosion. This erosive process now threatens an adjacent existing sewer main and the Landfill liner. To prevent the failure of the sewer main and the Landfill liner, Larimer County is proposing to move Fossil Creek back into a historic channel located 5 November 17, 2009 on Cathy Fromme Prairie Natural Area. The County is requesting a temporary construction easement on Cathy Fromme Prairie to accomplish this action. 16. Public Hearing and Resolution 2009-103 Approving the Programs and Projects That Will Receive Funds from the Federal Community Development Block Grant (CDBG) and Home Investment Partnerships (HOME) Programs, and the City's Affordable Housing Fund. The Resolution will complete the fall cycle of the competitive process for allocating $1,001,776 of City financial resources to affordable housing and community development programs/projects. 17. Resolution 2009-104 Authorizing the City Manager to Apply for Liquor Licenses on Behalf of the City. This Resolution authorizes the City Manager, on behalf of the City, to apply for liquor licenses for City facilities as the City Manager determines appropriate. It also authorizes the City Manager to designate other members of City staff as the City Manager deems appropriate to apply (as co -applicant) on behalf of the City for such license and to apply to be a registered manager of a licensed premises. The application for, and management of, the licensed facilities will, for the purposes of indemnification under the City Code and the Colorado Governmental Immunity Act (CGI .), be considered within the scope of employment of the City Manager and his designees and among the official duties they are to perform for the City. ***END CONSENT*** Ordinances on Second Reading were read by title by City Clerk Krajicek. Second Reading of Ordinance No. 120, 2009, Appropriating Unanticipated Revenue in the General Fund for the Natural Resources Energy Efficiency Community Block Grant. 8. Second Reading of Ordinance No. 121, 2009, Amending Chapter 26 Article XII of the City Code Relating to Utility Billing Errors. 9. Second Reading of Ordinance No. 122, 2009, Repealing Ordinance No. 007,1975, Relating to the Security of Buildings and Businesses in the City. 10. Second Reading of Ordinance No. 123, 2009, Adopting a Fee Schedule for Grandview and Roselawn Cemeteries and Amending the Rules and Regulations Governing Grandview and Roselawn Cemeteries to Add the Fee Schedule. 11. Second Reading of Ordinance No. 124, 2009, Amending the Zoning Map of the City of Fort Collins by Changing the Zoning Classification for that Certain Real Property Known as the Mountain Vista Subarea Plan Rezoning. November 17, 2009 12. Second Reading of Ordinance No. 125, 2009,.Authorizing the Appropriation of 2010 Fiscal Year Operating and Capital Improvement Funds for the Fort Collins -Loveland Municipal Airport. Ordinances on First Reading were read by title by City Clerk Krajicek. 13. First Reading of Ordinance No. 126, 2009, Appropriating Prior Year Reserves in the General, Employees' Retirement Plan. 14. First Reading of Ordinance No. 127, 2009, Authorizing the Sublease to Larimer County of Portions of the Fossil Creek Reservoir. Property Leased by the City from North Poudre Irrigation Company. 15. First Reading of Ordinance No.129, 2009, Authorizing the Conveyance of a Temporary Construction Easement on Cathy Fromme Prairie Natural Area to Latimer County for the Fossil Creek Restoration Project. 21. Emergency Ordinance No. 128, 2009, Imposing a Moratorium Upon the Acceptance of Applications for the Issuance of Licenses or Permits Related to Businesses that Seek to Dispense Medical Marijuana. Councilmember Manvel made a motion, seconded by Councilmember Troxell, to adopt and approve all items not withdrawn from the Consent Calendar. Yeas: Hutchinson, Kottwitz, Manvel, Ohlson, Poppaw, Roy and Troxell. Nays: none. trIPUB&[QIts) . too :1:41:03 Consent Calendar Follow-up Councilmember Poppaw thanked Bob Browning for his years of service on the CDBG Commission and the Affordable Housing Board. Councilmember Reports Councilmember Manvel noted he and Councilmember Troxell attended a reception at the Museum of Contemporary Art to celebrate the success of RamRide which has provided over 100,000 safe rides home to CSU students from the downtown area. Emergency Ordinance No. 128, 2009; Imposing a Moratorium on the Acceptance of Applications for the Issuance of Licenses or Permits Related to Businesses That Seek to Dispense Medical Marijuana and on the Establishment of Such Businesses in the City, Adopted as Amended on First Reading The following is staff s memorandum for this item. 7 November 17, 2009 "EXECUTIVE SUMMARY The City has recently seen a proliferation of medical marijuana dispensaries ("MMDs') within its boundaries, some of which are operated as "home occupations" in zone districts that are primarily residential in character. As of November 9, 2009, twenty-six such businesses had been issued sales tax licenses by the City, twelve of which have been issued in the last month, and City staff continues to receive inquiries from persons interested in establishing additional such businesses at the rate of approximately ten per week. Fort Collins Police Services has serious concerns about the secondary effects ofMMDs. Staff has held a number of meetings to discuss this issue and, on November S, 2009, the City Manager, City Attorney, Chief of Police, Planning Director and members of their respective staffs met with their counterparts from Larimer County and the City of Loveland to discuss a coordinated approach to dealing with MMDs. Because court rulings and regulations at the state level are rapidly changing with regard to MMDs and because there is a strongpossibility that the state legislature will address this subject during its upcoming legislative session, City staff recommends that the City Council impose a ten-month moratorium on MMDs, by means of this emergency ordinance, until the laws and regulations that govern MMDs are clarified and until the City has had an opportunity to determine how best to deal with them at the local level in the event that statewide regulations prove to be inadequate. This moratorium would maintain the status quo in that those MMDs that have been established would be allowed to continue to operate unless, under current law, they are illegal. BA CKGR O UND/DISCUSSION The origin of MMDs in Colorado. The reason that MMDs have come into existence is that, in November of 2000, the voters of the state of Colorado approved a constitutional amendment (the Amendment) that created an exception and an affirmative defense to the state's criminal laws so that patients and their 'primary care -givers" who are in.lawful possession of a registry identification card can possess and use a certain amount ofmarijuana for medical purposes. The presumptive amount which is, by definition, "lawful " under the Amendment, is two ounces or six plants per patient. However, as an affirmative defense to any prosecution, a person charged under state law may assert and prove that greater amounts were "medically necessary. " The Amendment states that no person shall be entitled to the protection of the Amendment for acquisition, possession, manufacture, production, use, sale distribution, dispensing or transportation of marijuana for any use other than medical use. The Department of Public Health and Environment (the "Department') is required and authorized under the Amendment to maintain a confidential registry of patients who have applied for and are entitled to receive a registry identification card. Local law enforcement officers can access the registry only if they have "stopped or arrested a person who claims to be engaged in the medical November 17, 2009 use of marijuana and is in possession of a registry identification card or its functional equivalent " and only for the purpose of verifying that the individual is lawfully in possession of the card. The Amendment sets forth in detail the criteria and procedures for obtaining such a card. Patients may, but are not required to; designate a primary care -giver. The Amendment defines a primary care -giver as a person other than the patient and the patient's physician who is eighteen years of age or older and who has a "significant responsibility for managing the well-being of a patient who has a debilitating medical condition. " However, the, Amendment does not define the term "significant responsibilityfor managing the well-being of a patient. " A combination of factors have led to an insurgence of MMDs in Colorado -municipalities. In the absence of a constitutional definition of this term, the rules made by the Department have largely determined the extent to which the Amendment has provided a "safe harbor" for MMDs. Initially, there was limited growth on the medical marijuana registry and in 2004, the Department created an administrative guideline that a primary care -giver could provide for only five registered patients. In 2007, however, a Denver District Judge overturned this limitation because of process concerns with the way the guideline had been adopted, including the fact that no public hearings were conducted by the Department. After this ruling, more MMDs began to open in communities throughout the state. In July of this year, the Department, through formal action of its Board following a public hearing, adopted a rule defining the term "significant responsibilityfor managing the well-being of a patient who has a debilitating medical condition " that f urther opened the door to MMDs. It defined the term to mean "assisting a patient with daily activities, including but not limited to transportation or housekeeping or meal preparation or shopping or making any necessary arrangement for access to medical care or services or provision of medical marijuana. " (Emphasis added.) This rule adopted by the Board suggested that MMDs that have little, ij any, actual responsibility for managing the well-being of patients could claim entitlement to the protection of the Amendment as primary care -givers. At its July hearing, the Board not only revised the definition to include the provision of marijuana as a way of assisting a patient with daily activities, but it also declined to limit primary care -givers to a certain number ofpatients. In addition, shortly after the Board hearing, the Obama administration announced that, even though the manufacture, distribution, possession and use ofmarijuana is prphibited by federal law, federal law enforcement agencies should not seek to prosecute marijuana cases in which the defendant is in compliance with states' medical marijuana programs. This reduced the risk that a MMD would be raided by the Drug Enforcement Administration. Finally, the state legislature has not tried to clarify or limit the extent to which MMDs fall within the protection of the Amendment, which has led to an even larger influx of MMDs in Colorado. In combination, these factors have created a huge growth in number of patients on the medical marijuana registry and a blossoming industryfor producing and distributing the drug. 0 November 17, 2009 In Fort Collins, the first sales tax license for a MMD was issued by the City on February 5, 2008, with a second issued on July 28, 2008. There have been 24 more issued to date in 2009 (12 in the last month). It also appears that more physicians have begun recommending marijuana to their j patients and the number of written recommendations of medical marijuana issued by those physicians has increased dramatically. As ofAugust 17, 2009, 732 of the 17,142 physicians licensed in Colorado (4.3%) had made recommendations for medical marijuana. Two of those physicians have written 38% of the recommendations, and the top 15 have made 76% of the recommendations. Recent rulings are more limiting. The Colorado Court of Appeals ruled in late October that "the act of supplying marijuana for medical use, by itself, is insufficient to constitute significant management responsibility for a patient's well-being, and consequently is insufficient to constitutionally qualify a person doing so as a primary care -giver. " People v. Stacy Clendenin, Colorado Court of Appeals, announced October 29, 2009. However, the court did not address the question of whether the Board's regulatory definition of the term "significant responsibilityfor manage the well-being of a patient " would have changed its ruling because that def nition was not in effect at the time of the defendant's trial and conviction in the case before the court. On the heels of the Court of Appeals decision, the Board repealed its definition of "significant responsibilityfor managing the well being of a patient" so as to be consistent with the court ruling. That decision of the Board, like the 2004 administrative guideline, was subsequently overturned by the Denver District Court. Therefore, at the present time, because of the conflict between the Court of Appeals decision and the Department regulations, it is unclear whether MMDs must provide daily assistance to patients beyond just providing marijuana to them. Hopefully, the courts, the Board or the state legislature will soon clarify what MMDs need to do in order to qualify as 'primary care -givers". In the meantime, City staff continues to have serious concerns about the unregulated proliferation of MMDs in the City. The health. and safety problems presented by MMDs Police Services has identified a number of specific health and safety problems associated with MMDs. They include the following: 1. Thousands of people who do not meet the intended definition of "debilitating medical condition "are receiving certificates for medical marijuana. The number is growing too fast to obtain current statistics, but the number may be approaching 20, 000 registered patients. About 10% of the certificate holders reside in Larimer County. 2. There are no regulations regarding MMDs. The term "dispensary" is not defined at the state level. There are no rules limiting the location, hours of operation, use on site, or criminal background of people who operate MMDs. At least six of the MMDs in Fort Collins are in residential areas. In Loveland, there is a MMD immediately next to a high school. Several of the Fort Collins MMD operators have arrest records for drugs and other 10 November 17, 2009 serious crimes, criminal histories, includingfelony convictions for marijuana cultivation and distribution. 3. Due to the unregulated nature of MMDs and marijuana growing operations, and the quantity of money and drugs involved, there is serious crime associated with them. There have been several violent robberies and burglaries ofMMDs and growers in Fort Collins. Many associated crimes go unreported because of the potentially illegal actions of the victims. 4. A large amount of maryuana is being grown in residential houses and being imported from other areas to meet this demand. There is no provision in the Amendment for third party producers; however, this is the manner in which many MMDs obtain their supply to meet the recent demand. There has been damage to rental properties and disruption to neighborhoods caused by these marijuana growing operations. There are also hazards associated with electrical wiring coupled with high electrical demand of indoor growing operations, air quality issues and mold and fungus that develops in these indoor grows. There are also no controls to ensure that the marijuana grown and distributed under the protective umbrella of the Amendment is consumed by registered users. There have been local cases where medical marijuana has been distributed on the illegal market and even to high school students. S. There is no requirement that a business disclose that it is providing medical marijuana on its sales tax application. While there are 23 businesses that have specifically listed it, Police Services believes that there are other businesses that are dispensing marijuana under licenses listingproducts like horticulture supply, paraphernalia and herbal medicine. Some MMDs may not have sales tax licenses at all. There is no way to determine how many MMDs are actually operating in the City. 6. Investigating unregulated MMD's forpossible criminal violations is extremely difficult. For example, there is no requirement, as exists at liquor licensed establishments, that MMD operators allow police into theirfacility to ensure that applicable laws are beingfollowed. Some MMDs advertise popular music, game rooms and smoking rooms where young users can -"medicate " together. These look more like bars than medical facilities with none of the regulatoryframework. 7. The laws and regulations concerning MMDs at the state and federal levels are unsettled at best, with several changes in the past few months. -This makes it very difficult for Police Services to differentiate between legal and illegal marijuana activity. There are also liability risks ifperceived errors are made in this uncertain environment: It is very difficult to create an enforcement strategy until these issues are resolved. In addition, Police Services does not have adequate staffing to devote to these investigations. This contributes to the completely unregulated nature of the marijuana business in the Fort Collins area. Depending on actions taken at the state level, further regulation may be necessary at the local level to regulate this industry in accordance with local values. 11 November 17, 2009 Possible Regulatory Approaches. Colorado municipalities have taken a variety of approaches to addressing MMDs. Many have enacted ordinances establishing a moratorium on MMDs pending further study. Long-term approaches range from adopting no local regulations to imposing a total ban. Regulations include locational requirements (e.g., minimum distances from schools or particular zone districts) as well as regulations limiting on -site quantities, signage, hours of operation, on -site consumption etc. Some municipalities issue permits to MMDs and make the permits subject to suspension or revocation much like a liquor license. Each of these approaches reflects a particularpolicyposition with regard to MMDs and each is designed to address certain perceived problems, such as their proximity to facilities that are occupied or frequented by school age children, or the possibility that MMDs will serve as 'fronts "for illegal drug trafficking, etc. Before City staff can make an informed recommendation to the City Council as to how to deal with MMDs, much needs to be determined. First and foremost, the law needs to be clarified as to just what the Amendment allows and does not allow. This clarification can come from either the Board or the state legislature or both. In addition, City staff needs to investigate the most reasonable approach to dealing with MMDs at the local level. Finally, the City needs to coordinate its efforts with Larimer County, Loveland and other neighboring municipalities so that the approach it adopts takes into consideration the impact of the City's regulations on neighboring communities. The recommended ten-month period of time should be sufficient to allow for the formulation of recommended amendments to the City Code to deal with MMDs in the City. In the interim, staff believes that an adequate number of MMDs already exist in the City to meet the intent of the Amendment at the local level. FINANC]AL IMPACTS • Potential sales tax and licensing revenues associated with MMD's during the Moratorium. • Staff time and resources associated with research and potential code changes to address the use. SUSTAINABILITY. ECONOMIC, ENVIRONMENTAL AND SOCIAL IMPACTS Part of the purpose of this proposed moratorium is to understand the economic, environmental and social impacts associated with MMD's. It is unclear as to the impacts MMD's as allowed by State Law would have on our community. The economic impacts associated with regulating and enforcement is unknown as well as the impacts of not regulating or enforcing them as a complete and unfettered allowance of the use may have economic impacts associated with safety issues as the use and potential negative impacts enter into residential neighborhoods. The environmental impacts are also unclear as there. are potential issues associated with the varying scales of the MMD's. Finally, the social impacts are also unclear as the absence of any regulatory criteria may cause the residential character of neighborhoods to decline and sensitive uses such as schools, places of worship, daycare facilities, etc could also be impacted. The proposed moratorium will allow the 12 November 17, 2009 City to review potential impacts and provide the City Council with information to make an informed decision regarding the appropriate regulatory methods to address MMD's. " City Manager Atteberry stated:the issue of medical marijuana dispensaries (MMD) is brought as an emergency ordinance because staff believes this issue needs Council's immediate attention. Police Services is concerned over the proliferation of MMDs and Financial Services is concerned about processing the influx of requests for sales tax licenses. The issue of MMDs is not about the, appropriate use of marijuana but focuses on the effective regulation of medical marijuana dispensaries. Currently, no Land Use regulations are enacted to regulate the location of these facilities. The requested moratorium will give staff time to propose Land Use regulations for Council's consideration. The moratorium will be up to ten months, but proposed regulations could be brought forward sooner. No criteria exist to regulate who could receive a sales tax license to operate a MMD. The application process to acquire a liquor license is quite extensive and no similar process is in place for MMDs. City Attorney Roy stated the term medical marijuana dispensaries is not a term found in the Constitutional amendment that gave rise to the current situation. The term is used to describe persons or entities who sell or otherwise distribute marijuana for the purposes permitted under Amendment 20, which was approved by Colorado voters in 2000. Amendment 20 establishes an affirmative defense and exceptions to the state criminal laws pertaining to marijuana. The phrase in the Amendment that spawned the proliferation of MMDs is "primary care giver". The Amendment allows the use of marijuana for medical purposes by persons with debilitating medical conditions and their primary care givers, a person other than the patient who is 18 years of age or older, and has "significant responsibility for managing the well-being of a patient". The Amendment does not define "significant responsibility". Medical marijuana dispensaries are being established on the premise that they qualify as primary care givers. At this point, the law is very unsettled about the definition of a primary care giver. A proliferation of MMDs has occurred in the city as a result of the current definition of primary care giver which has been reinstated in the Department of Public Health regulations. These regulations indicate the mere provision of marijuana constitutes significant responsibility for managing the well- being of a patient and makes one eligible, as a primary care -giver, even though other kinds of assistance with daily activities may not be provided. There is a lack of state regulation of MMDs; although, the State Legislature may address the subject to provide some baseline ofregulation. Also, there has been a directive from the federal level not to enforce marijuana laws in areas that comply with state laws that allow for medical use of marijuana. Steve Dush, Current Planning Director, stated a medical marijuana dispensary is currently classified as a retail store or a combination of retail store/clinic or personal service. The use classification could change in the future, depending on future changes by the Department of Public Health. Currently, there are no land use criteria to review or mitigate impacts of MMDs, such as location impacts. The use is allowed in all non-residential zones and some residential zones as a retail use establishment. The use is also allowed as a home occupation in all zones. Currently, there are 8 MMDs located in residential zones, with seven of those requiring home occupation licenses. One is grandfathered in through the City's old Land Development Guidance System. As of the end of 13 November 17, 2009 business today, two more home occupation license applications were received. No sales on the premise are allowed with a home occupation license, but the product can be grown and stored in the house and delivered to customers offsite. A detached building cannot be used and the product cannot be grown or stored outside. To date, the City has eight licenses in residential zones, 18 licenses in commercial zones and two licenses for addresses not in the city, but intending to do business in the city. Since Friday, November 13th, 19 additional requests for sales tax licenses have been received and are still pending. Jerry Schiager, Police Services, stated in 2001, the Colorado Department of Public Health and Environment began accepting applications for the medical marijuana registry. At that time there were no known dispensaries in Fort Collins. In November 2004, the Department created a guideline that a primary caregiver could only provide marijuana for up to five patients after a concern was raised about caregivers claiming to provide for hundreds of patients. At that point there were 512 patients listed on registry with no known dispensaries in Fort Collins. The guideline was overruled in 2007 by a Denver District Courtjudge because the rule had been created without using the proper public process: The registry had 1350 patients by 2007 and no known dispensaries were located in Fort Collins. The first sales tax license in Fort Collins was issued to a medical marijuana dispensary in 2008. In 2009, the Obama administration stated federal resources should not be used to prosecute people who were in compliance with state medical marijuana laws. There were 5,000 people listed on the registry when the presidential statement was issued, with three dispensaries located in Fort Collins. The Colorado Department of Public Health and Environment held a public hearing in July 2009 to establish rules regarding the medical marijuana program and decided not to reestablish the five patient per caregiver rule. The Board defined the term "significant responsibility for managing the well-being of a patient" to include simply providing marijuana. At that time there were about 10,000 people listed on the state registry with 10 dispensaries in Fort Collins. In October 2009, the Court of Appeals ruled that to qualify as a primary caregiver, a person must do more to manage the well-being of a patient, than simply providing marijuana. The state registry now had 20,000 patients listed and 20 dispensaries were located in Fort Collins. In November 2009, the Board held an emergency meeting to change its definition to be consistent with the Court of Appeals ruling, but was overruled by the Denver District Court judge. Currently, there are over 21,000 people listed on the state registry, with over 600 applications received each day. Larimer County has about 10% of the registered patients. Some perceived abuses exist in the medical marijuana program. Some physicians are making recommendations for people who probably do not have legitimate debilitating medical conditions. Out of 17,000 licensed physicians in Colorado, 732 physicians have written at least one recommendation for medical marijuana. Two physicians have written 38% of the recommendations and the top fifteen physicians have written 76% of the recommendations. Large retail dispensaries probably do not meet the definition of a primary caregiver. Large quantities of marijuana are being produced in underground growing operations with no control or accounting as to where it is distributed. Police Services has worked several cases where marijuana grown under the protection of the medical marijuana laws has been sold illegally. The State does not have any regulations in place for this program and there are very few regulations at the local level. No qualifications or background checks are required for those who apply for sales tax licenses for dispensaries. Several applicants have had drug -related arrests. Dispensaries are not required to disclose that the business 14 November 17, 2009 is selling marijuana. A business that opened prior to becoming a medical marijuana dispensary is not required to add the sale of medical marijuana to its sales tax license as a product being provided. No restrictions exist for location, hours of operation or on marijuana use on the site of the MMD. Signage and advertising are not regulated. The kitchens producing marijuana food products are not controlled by health inspections. Liquor licensing regulations control many of these issues for liquor distribution and similar types of regulations would be appropriate for medical marijuana dispensaries. It is difficult for law enforcement to distinguish between legal medical marijuana business and illegal drug trafficking. Possession of marijuana may or may not be a crime at the time of possession because the people caught with the marijuana do not have documentation to justify legal use and there is no way to verify legal use through the state registry. Many marijuana growers are exceeding the limits of allowed growth of marijuana. One section of the State Amendment allows growers to have six plants or two ounces and another section allows growers to present evidence that more marijuana is needed for their condition. It is difficult to distinguish between growers that are legally in production and those that are illegal. The confidentiality rules contained in Amendment 20 have made it very difficult for law enforcement to obtain any information. The patient/caregiver/physician information is protected information. A registered patient can buy from multiple dispensaries. Some dispensaries do require a "change of caregiver" form to be completed before dispensing, but others do not require the form to be signed. Serious crimes are associated with marijuana. Large amounts of money are involved in the sale of marijuana and provides an impetus for crime. Many crimes are not reported because people are unsure of their legal status or the theft of marijuana is not reported, which creates inaccurate police reports. There have been five armed robberies where armed robbers have invaded homes looking for medical marijuana in the past year. Seven burglaries were specifically related to medical marijuana business and one kidnaping where the victim reported being forced to show the kidnappers where medical marijuana was being grown. The Drug Task Force is seeing crossover between medical marijuana and other drugs where medical marijuana users and growers are caught dealing in heroin, cocaine, methamphetamines and other drugs. Health and safety issues are associated with growing marijuana in residential areas. Many growing operations have electrical hazards, air quality issues, and use of chemicals such as pesticides and fertilizers. Mold growing in the basements -used for marijuana cultivation is another problem in residential areas. Although many are legitimate users of medical marijuana, many abuses exist in the current system. Regulations are needed to distinguish legitimate users from abusers at both the state and local level. The upcoming state legislative session will probably consider enacting regulations but land use regulations at the local level should also be put into place. City Attorney Steve Roy noted the approaches taken by other municipalities to address this issue range from a total ban to doing nothing. Some municipalities have placed limitations on location and are imposing operating regulations similar to those imposed on applicants for liquor licenses by requiring background checks and limiting hours of operation, imposing distance requirements from 15 November 17, 2009 schools, regulating quantity of product, security precautions, and signage. An emergency moratorium is requested by staff because the number of applications for dispensaries is rapidly increasing and the lack of regulation creates substantial health and safety risks. Once the state legislature and Department of Health have made decisions regarding regulations, the City will need to consider appropriate regulations for Fort Collins. The proposed ordinance would impose a ten- month moratorium on the issuance of sales tax licenses or home occupation licenses for the establishment of medical marijuana dispensaries. A revised version of the ordinance was provided to address concerns about a provision in the ordinance which would have precluded the processing of pending applications for sales tax licenses. Some applicants have relied in good faith on the issuance of a sales tax license as an administrative act and have made substantial expenditures such as investment in real property, signing leases or making improvements directed solely towards establishing an MMD. The optional version of the ordinance would allow discretion in the handling of pending applications. The City Manager, pursuant to administrative guidelines, would review the 19 additional applications that are pending and determine if a substantial expenditure had been made. It would not affect existing MMDs that are in appropriate zone districts and have appropriate licenses, unless and until Council adopts additional regulations. Individual primary caregivers serving one individual would be exempt. The Ordinance allows time for the state to act and gives the City time to decide what to regulate at the local level. The City Manager and City Attorney would be directed to develop recommendations and would allow Council to lift the moratorium as soon as it felt it was appropriate to do so. City Attorney Roy read the changes to the ordinance into the record. The following people spoke in opposition to the moratorium on medical marijuana dispensaries: Theresa Gomez, 1412 Castlerock Drive Eli Trofle, Fort Collins resident Kim Lurbe, Fort Collins resident Monte Barry, 415 South Howes Karen Miller, 4325 Mill Creek Court Phillip Hales, Fort Collins resident Trent Minor, Longmont Timothy Tipton, Cannabis Therapy Institute Leslie Ashford, Fort Collins resident Andrew Cumar, Fort Collins resident Stacy Lynne, 216 Park Street Bruce Lockhart, 2500 East Harmony Road Evan Stafford, Fort Collins resident Lori Creho, Cannabis Therapy Institute Sarah Cure, Attorney, Fort Collins resident Tim Gordon, Medicinal Gardens of Colorado Travis Cutbirth, Medicinal Gardens of Colorado Charles Perry, Fort Collins resident ("Secretary's note: The Council took a brief recess at this point in the meeting.) 16 November 17, 2009 Councilmember Kottwitz asked if the moratorium will halt the issuance of licenses for dispensaries or will halt the sale of marijuana to people seeking to use marijuana for medical purposes. City Attorney Roy stated the moratorium would halt the processing of applications for permits or licenses related to the establishment or operation of MMDs and limits the establishment and operation of MMDs to those entities that have received a sales tax license and comply with the City's zoning regulations in terms of location. A person who has qualified as a medical marijuana patient would be able to purchase marijuana at a dispensary that was already established. Councilmember Kottwitz asked if current dispensaries will be required to cease operations under a moratorium. City Attorney Roy stated no new dispensaries would be allowed during the moratorium. Those already in operation would be allowed to continue. Councilmember Ohlson asked if a current establishment that had not yet acquired a sales tax license would be required to stop doing business. City Attorney Roy clarified the current dispensaries that will be allowed to continue in business under the moratorium are those that currently have a sales tax license and are in the proper zone district. Councilmember Ohlson asked for the number of current dispensaries that meet the requirements and would be allowed to continue doing business if the emergency ordinance is adopted. Dush stated 27 dispensaries have sales tax licenses and are in the correct zone district. Since Friday, 19 new applications for sales tax licenses have been received but the licenses have not been issued. City Attorney Roy stated there could be more than 27 businesses that are dispensing medical marijuana. The number of new businesses that were issued sales tax licenses since 2008 where businesses specifically indicated part of their purpose is selling medical marijuana is 27. It is unknown how many additional businesses, if any, that have held sales tax licenses for many years, have added the sale of medical marijuana to their existing business and are also in the correct zone district. Councilmember Kottwitz asked if ten months for the moratorium was chosen to allow time for the state legislature to address the issues raised by MMDs. City Attorney Roy stated the state legislature might act and some court decisions may also be issued to clarify some of the issues. Councilmember Kottwitz asked how many new sales tax licenses might be issued if the ordinance is not adopted as an emergency ordinance. City Attorney Roy stated the issuance of a sales tax license is not a lengthy process and the practice is to process applications on a weekly basis. Any applications that come in during the time between First Reading and the date the ordinance becomes effective will be processed. The potential exists for many more dispensaries to be established. Chuck Seest, Finance Director, noted the processing time to -issue a sales tax license is three to five days. Mayor Hutchinson asked if there are any specific Code references to medical marijuana dispensaries. Dush stated there are Code requirements for home occupation businesses and general retail uses, but are no specific Code references to MMDs. Councilmember Manvel asked why sales tax can be charged on medical marijuana. Seest stated the State Attorney General has declared sales tax can be collected on medical marijuana sales. 17 November 17, 2009 Councilmember Kottwitz asked if declaring a moratorium will force some MMDs underground. Schiager stated much of the business of dispensing medical marijuana has been underground but a moratorium should not push new activity underground. The goal of creating a regulatory framework is to bring all MMDs into legitimate standing. Councilmember Kottwitz asked how much time would be needed to create the needed regulations for Council consideration. City Attorney Roy stated staff would need at least three months to create regulations if no consideration is given to any action taken by the state. In Fort Collins, the process to create legislation typically involves much public input. A longer moratorium was suggested by staff to allow the state time to enact legislation. Councilmember Troxell asked if liquor stores were considered differently from other types of retail. Dush stated the issuance of a liquor license is a separate process from the issuance of a sales tax license. The Land Use Code considers a liquor store as a retail establishment. The liquor licensing process imposes other provisions on the location of a liquor store. Councilmember Troxell asked if a medical clinic or pharmacy is regulated by the Land Use Code. Dush stated a medical clinic is only permitted in certain zone districts, according to the parameters of the zoning. There are no specific provisions to address a clinic. A pharmacy is considered general retail and must follow the regulations for that classification. Councilmember Manvel asked for the penalties of violating the City's requirement for businesses to hold a sales tax license and if dispensaries will operate illegally without a license if the moratorium is put into place. Schiager stated the moratorium will prohibit the opening of a storefront retail business. Dispensaries have been operating illegally and will probably continue to do so. Councilmember Manvel asked if storefront retail is a small percentage of dispensaries. Schiager stated according to addresses received on sales tax applications, many are in business areas. Nine MMDs are located along the College corridor. Councilmember Manvel asked what will happen with those dispensaries that are issued a sales tax license but might not comply with future regulations adopted by Council. City Attorney Roy stated many will probably be grandfathered in, depending on the wording of any new regulation. Staff considers this issue an emergency because many of the businesses that open now will probably be grandfathered in their current locations, assuming the businesses can come into compliance with the new regulations and do not have just a home occupation license, which lasts only two years. Councilmember Troxell asked for the legal status of marijuana outside of the use of marijuana for medical purposes. Schiager stated the federal law classifies marijuana as Schedule 1 narcotic which is potentially the most serious level of offense. The classification means the federal government has declared marijuana is a substance with a high potential for abuse and has no legitimate medical use. Mayor Hutchinson noted the proposed moratorium is related to medical marijuana dispensaries and not with the illegal use of marijuana. November 17, 2009 Councilmember Troxell noted a dramatic increase in dispensaries occurred after the federal government announced it would not enforce marijuana laws in areas that comply with state laws that allow for medical use of marijuana but federal law considers marijuana an illegal substance. Schiager stated the federal directive was a contributing factor to the growth of MMDs in Colorado. City Attorney Roy clarified grandfathering. Some businesses will not be granfathered if they are clearly illegal after the state legislates and clarifies what is permissible under Amendment 20. Councilmember Kottwitz asked how many emergency ordinances have been adopted and for what reasons. City Attorney Roy stated he did not know how many emergency ordinances have been adopted. Mayor Hutchinson noted an emergency ordinance uses a different procedure than adoption of a regular ordinance. An emergency ordinance does not mean catastrophe but does take effect immediately upon adoption. City Attorney Roy stated five Councilmembers must adopt an emergency ordinance and the ordinance takes effect immediately. The nature of the emergency must be specified in the ordinance. Mayor Hutchinson stated Council could choose to adopt the ordinance as a regular ordinance with two readings and an effective date ten days after second reading. Councilmember Ohlsoq stated many MMDs located close to schools are in residential areas have home occupation licenses, which may not be renewed after two years if they do not comply with regulations. City Attorney Roy stated Council can consider conditions to allow grandfathering when it discusses regulations. Councilmember Ohlson stated regulations are needed for MMDs, but the issue does not meet the qualifications for an emergency ordinance. Regulations developed by Fort Collins could be used at the state level when the legislature determines regulations. In the past, Fort Collins did not adopt a moratorium for land use regulations during periods of great growth, for a transition from the Land Development Guidance System to City Plan or for infill development to prevent mansions next to bungalows in the downtown area. He did not support the use of a moratorium. Councilmember Manvel made a motion, seconded by Councilmember Troxell, to adopt Emergency Ordinance No. 128, 2009, as amended and read into the record. V Councilmember Manvel stated concerns that MMDs may become established that, in the future, would be in violation of the regulations that will be established and yet would be grandfathered and allowed to continue doing business. Adoption of the emergency ordinance might prevent some of those establishments from opening. Councilmember Kottwitz made a motion, seconded by Councilmember Ohlson, to amend the Ordinance to remove the emergency language. 19 November 17, 2009 Councilmember Roy stated he did not support the use of an emergency ordinance for this issue and a moratorium should not be established. Councilmember Manvel stated time is needed to develop regulations with public input. Councilmember Ohlson stated he did not believe grandfathering of establishments in unwanted locations will be much of an issue and the City can develop regulations regarding location of MMDS and address other issues that have been raised. Councilmember Kottwitz stated adoption of the ordinance as an emergency ordinance is not fair to all citizens. Councilmember Troxell stated the moratorium should go into effect immediately to support Police Services because the legal status of MMDs is so unclear. The lack of regulations has created health and safety risks. The problem will be exacerbated if the ordinance is not adopted as an emergency ordinance. The vote on the motion to remove the emergency language from the ordinance was as follows: Yeas: Kottwitz, Ohlson, Poppaw, Roy. Nays: Hutchinson, Manvel, Troxell. THE MOTION CARRIED. Councihnember Manvel noted Amendment 20 gives people the right to use marijuana for medical purposes and that right should not be infringed upon. Regulations need to be created to ensure the safety of the people using medical marijuana and the process to develop those regulations will take several months. Councilmember Kottwitz stated regulations are needed but a ten month moratorium is too long. Councilmember Ohlson stated he would support a shorter moratorium. Councilmember Roy stated regulations are needed for MMDs but a moratorium is too extreme. Staff can draft regulations that will be effective and appropriate for the city. Councilmember Poppaw stated concerns that Fort Collins may be creating more problems for neighboring communities because a moratorium could cause many more MMDs to open in surrounding communities and in Larimer County. Councilmember Kottwitz made a motion, seconded by Councilmember Poppaw, to amend Ordinance No. 128, 2009, to change the moratorium to three months instead of ten months. City Attorney Roy stated any changes to the Land Use Code are required to be reviewed by the Planning and Zoning Board for recommendation. Staff needs time to develop the regulations, take them to the Planning and Zoning Board and to hold a work session with Council to gather its input. November 17, 2009 Diane Jones, Deputy City Manager, stated public outreach also needs to be included in the regulation process. City Attorney Roy stated staff will return to Council on Second Reading with a recommendation on whether a moratorium is still worth doing and a closer estimate for the amount of time needed to complete the regulation development process. Councilmember Troxell stated a three month moratorium will expire in the middle of the state legislative session and the issue will not be settled at that time. There is no benefit to rushing the regulation process and allowing more time for the moratorium will allow for more deliberation and public input. Mayor Hutchinson noted the ordinance states the moratorium will be for a maximum of ten months and development of regulations could occur much sooner. Councilmember Roy stated no moratorium should be put into place. Staff should be given.enough time to thorough develop reasonable recommendations and be directed to bring regulations for Council for consideration. Three months is not enough time for the regulations to be fully determined. Mayor Hutchinson stated staff could take as long as is necessary to create regulations. The amendment states the moratorium will expire after three months. It does not direct staff to bring regulations forward within three months. Councilmember Ohlson did not support waiting for the state legislature to create regulations. He believed Fort Collins could do a better job of creating rules that would be reasonable and best for the city. Councilmember Manvel stated his support in changing the moratorium from ten months to three months because a short time period will push staff to create regulations in a timely manner. An adjustment to the moratorium period can be considered in two weeks on Second Reading if staff determines a longer time is needed to gather public input and board and commission recommendations. Councilmember Roy stated the moratorium is unnecessary and based on fear. The citizens of Colorado voted to legally allow the use of marijuana for medical puxposes and the dispensaries are legal. Regulations are necessary for the dispensaries but a moratorium should not be put in place. Councilmember Poppaw stated a moratorium will only make the problem worse and she did not support any period of moratorium. Mayor Hutchinson stated he supported changing the length of time for the moratorium because the process has been changed from an emergency ordinance to a regular ordinance and this is now First Reading. Staff has been directed to return on Second Reading with more specifics on the process of creating the regulations. 21 November 17, 2009 The vote on the motion to amend the Ordinance by changing the period of moratorium from ten months to three months was as follows: Yeas: Hutchinson, Kottwitz, Manvel, Ohlson. Nays: Poppaw, Roy and Troxell. THE MOTION CARRIED. Councilmember Kottwitz stated her concerns with the use of a moratorium to control the proliferation of dispensaries and that a moratorium may only make the issue worse. Councilmember Manvel stated more information on the issue is needed for Second Reading. The use of medical marijuana is not prohibited and regulations need to be developed to protect neighborhoods. Councilmember Ohlson asked staff to determine if imposing a three month moratorium will provide any benefit. Deputy City Manager Jones stated staff will bring its recommendation on whether to continue the moratorium for Second Reading. The vote on the motion to adopt Ordinance No. 128, 2009, as amended on First Reading, was as follows: Yeas: Hutchinson, Kottwitz, Manvel, Ohlson, and Troxell. Nays: Poppaw, Roy. THE MOTION CARRIED. Ordinance No. 120, 2009, Appropriating Unanticipated Revenue in the General Fund for the Natural Resources Energy Efficiency Community Block Grant Adopted on Second Reading The following is staff's memorandum for this item. "EXECUTIVE SUMMARY This Ordinance, unanimously adopted on First Reading on November 3, 2009, appropriates $1,307,900, received by the City under a Energy Efficiency and Conservation Block Grant (EECBG) Program. " Bruce Lockhart, 2500 East Harmony, stated the grant money will be spent on programs that will not have any lasting effect on the amount of energy consumed by the City. Stacy Lynne, 221 Park Street, stated global warming is not proven and she did not support the use of federal funds for any projects designed to address global warming. Shane Miller, 4325 Mill Creek, stated humans have greatly impacted the world's environment and global warming is a reality. All people need to practice energy conservation. 22 November 17, 2009 Councilmember Roymade a motion, seconded by Councilmember Manvel, to adopt Ordinance No. 120, 2009 on Second Reading. Yeas: Hutchinson, Kottwitz, Manvel, Ohlson, Poppaw, Roy and Troxell. Nays: none. THE MOTION CARRIED. Ordinance No. 121, 2009, Amending Chapter 26 Article XII of the City Code Relatinp- to Utility Billing Errors. Adopted on Second Reading The following is staffs memorandum for this item. "EXECUTIVE SUMMARY This Ordinance, unanimously adopted on FirstReadingon November3, 2009, codifies the Utilities' current administrative policy which addresses utility billing errors. When a customer is overcharged, the Utilities will refund the customer the overcharge for a period not to exceed six years from the time the error is discovered. If a customer is undercharged for services received, the Utility will back bill the customer only if the undercharges occurred less than six years before the date the error is discovered and either the undercharges are for a minimal amount or the customer could not have discovered the error with reasonable inquiry. No interest will be paid or collected. " Eric Sutherland, 631 LaPorte, asked why the public notice was addressed only to out -of -city customers. He asked why the Electric Board was not asked to make a recommendation on the wording of the Ordinance since the Board met after the Ordinance was adopted on First Reading. Councilmember Ohlson asked why the Electric Board did not consider the Ordinance after it was adopted on First Reading. Steve Catanach, Light and Power Operations Manager, stated the Electric Board did meet last week but the Board did not discuss the Ordinance because it had already had a discussion of this item in September. Councilmember Ohlson stated a greater effort must be made to provide boards and commissions with the wording of ordinances so they can provide Council as much input as possible. City Attorney Roy stated boards and commissions typically review outlines of ordinances and resolutions and are not provided with the draft language. A further discussion is necessary if Council believes the current process is not providing boards and commissions with, enough information to provide recommendations. Ordinances and resolutions are revised up'to "the last minute before they go to print. Sometimes, the wording of an ordinance can become the focus of a discussion and then, as the wording for the ordinance evolves, the wording that was the focus -of the previous discussion becomes a nonissue and much time was wasted on a point that was no longer under consideration. Mayor Hutchinson noted the purpose ofboards and commissions is to provide input on concepts and ideas as the main focus. 23 November 17, 2009 Councilmember Roy made a motion, seconded by Councilmember Manvel, to adopt Ordinance No. 121, 2009 on Second Reading. Councilmember Troxell thanked staff for the information provided after First Reading regarding the numbers ofbilling errors that occurred. The data showed billing errors are minimal and do not often occur. The vote on the motion was as follows: Yeas: Hutchinson, Kottwitz, Manvel, Ohlson, Poppaw, Roy and Troxell. Nays: none. THE MOTION CARRIED. c Resolution 2009-104 Authorizing the City Manager to Apply for Liquor Licenses on Behalf of the City, Postponed Indefinitely The following is staff s memorandum for this item. "EXECUTIVE SUMMARY This Resolution authorizes the City Manager, on behalf of the City, to apply for liquor licenses for Cityfacilities as the City Manager determines appropriate. It also authorizes the City Manager to designate other members of City staff as the City Manager deems appropriate to apply (as co - applicant) on behalf of the City for such license and to apply to be a registered manager of a licensed premises. The application for, and management of the licensed facilities will, for the purposes of indemnification under the City Code and the Colorado Governmental Immunity Act (CGIA), be considered within the scope of employment of the City Manager and his designees and among the official duties they are to perform for the City. , BA CKGR O UNDIDIS C USSION The City Manager initially intends to apply as co -applicant for a hotel -restaurant liquor license on behalfofthe City and the licensedpremises will be the Northside Aztlan Community Center (NACC). The NACC makes certain facilities available to the public for rent and many renters wish to serve alcohol at their events. Although NACC staff submitted two different RFPs to select a private vendor to sell alcohol at NACC, no one submitted a proposal the first time and one proposal was submitted the second time but did not meet the City's qualifications. Under current Citypolicy, the City allows those who rent space at the NACC to serve alcohol gratuitously at private events. Consequently, alcohol cannot currently be sold at the NACC. Renters who wish to serve alcohol at their private events must buy it themselves and provide it to patrons at no charge. This greatly increases the expense of holding events at the NACC, and limits its ability to attract rentals. If the City holds the liquor license, renters would not have to incur the expense of providing the alcohol. 24 November 17, 2009 Beverages could be sold to eventguests, with revenues covering expenses and producing a profitfor NACC. The application and qualification process for the City's hotel -restaurant license for NACC will be conducted through the City Clerk's office. Designated City staff will complete the registered manager application and will name the management -level person who will be responsible for the day-to-day management ofalcohol sales and service at the applicable Cityfacility. Ifthis Resolution, is adopted by the City Council, the City Manager may also apply for other Cityfacilities to become liquor licensed establishments instead of having a vendor hold the license. The City Manager is required to provide Council with at least 60 days advanced written notice of any proposed liquor license application. Adoption of the Resolution provides the City Manager with the authority to apply for and hold a liquor license on behalf of the City. This Resolution makes it clear the City's Manager's actions in this regard are within the scope of his responsibilities and those of his designees. FINANCIAL IMPACTS With the City holding the liquor license, renting NACC becomes more affordable, and attractive from a customer standpoint. More renters will select NACC as the place to host their event if alcohol service is provided by the NACC. Funds to purchase alcohol will be provided from the NACC rental budget. Revenue generated from the sale of alcohol during these events will more than offset any expense and will add to the overall revenue base of the NACC. " Steve Levinger, Fort Collins Innkeepers Association, stated the Association has concerns with the City facilities having full liquor licenses that will allow the City to compete with local businesses and could give the City an unfair advantage over private facilities. He asked Council to postpone consideration of the item to provide more time to discuss the item. Eric Sutherland, 631 LaPorte, asked for an announcement early in the evening if Council determines it needs more information before considering an item and decides not to vote on that item. He did not support the issuance of a liquor license for the City because it will create an unfair competition between the City and local business owners. Cash bars should not be allowed in the Northside Atzlan Center because the facility is frequented by many young people.1. Councilmember Ohlson made a motion, seconded by Councilmember Roy, to postpone consideration of Resolution 2009-104 until a date to be determined by the Leadership Planning Team. Yeas: Hutchinson, Kottwitz, Manvel, Ohlson, Poppaw, Roy and Troxell. Nays: none. THE MOTION CARRIED. 25 November 17, 2009 Adjournment The meeting adjourned at 10:20 p.m. l� Mayor ATTEST: 1 City Clerk 26