HomeMy WebLinkAbout1996-07-08 City Council Summary Minutes Regular Meeting July 8, 1996 1. Resolution Expressing Appreciation to Canine Argus Vom Zollvereintor Upon His Retirement.....................79-367 ORAL COMMUNICATIONS........................................79-367 APPROVAL OF MINUTES OF APRIL 15, 1996......................79-368 2. Contract between the City of Palo Alto and Shelton Roofing for Cubberley Wings I and D Reroof Project................79-368 3. Contract between the City of Palo Alto and Davey Tree Expert Company for the University Avenue Magnolia Project....79-368 4. Ordinance 4354 entitled Ordinance Amending Section 18.08.040 of the Palo Alto Municipal Code (The Zoning Map) to Change the Classification of Property Known as 2700 Ash Street from RM-40 to PC.................................................79-368 AGENDA CHANGES, ADDITIONS, AND DELETIONS...................79-368 6. PUBLIC HEARING: Consideration of Protest of Diablo Landscape Maintenance, Inc. and Change Order Amendments for Landscape Services..............................................79-368 6A. (Old Item No. 5) Request for Authority to Participate as Amicus Curiae in Thomas, et al. v. City of East Palo Alto, First District Court of Appeal No. A073656............79-375
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7. Ordinances re Amending Chapter 9.04 of the Palo Alto Municipal Code Relating to Alcoholic Beverages to Add Section 9.04.030 Prohibiting Possession of Open Containers of Alcoholic Beverages Within or Adjacent to Businesses Licensed for Retail Package Off-Site Sale of Alcoholic Beverages; Amending Chapter 9.48 of the Palo Alto Municipal Code Relating to Obstructing Streets and Sidewalks to Add Section 9.48.025 Prohibiting Sitting or Lying Down Upon the Public Sidewalk on University Avenue Between High Street and Waverley Street; and Repealing Chapter 9.44 of the Palo Alto Municipal Code Relating to Distribution of Handbills, Advertising, and Samples on Public and Private Properties and Enacting a New Chapter 9.44 of the Palo Alto Municipal Code Prohibiting Solicitation of Employment, Business, or Contributions Within Public Parking Lots..................................................79-376 8. Air Cargo Operations Proposed for Moffett Federal Airfield - Draft Environmental Assessment........................79-386 9. Council Members Fazzino and Kniss, and Vice Mayor Huber re Traffic/Transportation Management Issues..............79-386 ADJOURNMENT: The meeting adjourned at 11:42 p.m............79-398
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The City Council of the City of Palo Alto met on this date in the Council Chambers at 7:15 p.m. PRESENT: Andersen, Fazzino, Huber, Kniss, McCown, Rosenbaum, Schneider, Simitian, Wheeler SPECIAL ORDERS OF THE DAY 1. Resolution Expressing Appreciation to Canine Argus Vom Zollvereintor Upon His Retirement MOTION: Council Member Fazzino moved, seconded by Schneider, to adopt the Resolution. Resolution 7607 entitled "Resolution of the Council of the City of Palo Alto Expressing Appreciation to Canine Argus Vom Zollvereintor Upon His Retirement" MOTION PASSED 9-0. Police Chief Chris Durkin spoke on the importance of having confidence in one's partner, lauding Canine Argus Vom Zollvereintor who had proven himself courageous, brave, and resolute countless times over the six year period in which he had served under the leadership of Agent Larry Buck. ORAL COMMUNICATIONS Ben Bailey, 343 Byron Street, spoke regarding perspective in relation to the City of Palo Alto, encouraging Council to seek rational solutions to the City's problems. Herb Borock, 2731 Byron Street, spoke regarding the Architectural Review Board public meetings on Sand Hill Road Corridor Projects the times and places for which created difficulties in attendance; suggested use of Council Chambers rather than Council Conference Room. Margaret Ash, 5901 El Camino Real, spoke regarding homelessness in Palo Alto and causes of poverty, a primary result of which in either case was alcoholism. Positive rather than negative solutions were encouraged. Peter Sylvester, 262 Kingsley Avenue, said he was in attendance representing the Palo Alto Civic League. Edmund Power, 2254 Dartmouth Street, spoke regarding honesty in government, specifically with regard to the Lucie Stern Sea Scout Mariner property and the methods by which the City had obtained said property.
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Lee Alton, homeless, spoke regarding homelessness and the criminal attachment to poverty through various laws. APPROVAL OF MINUTES OF APRIL 15, 1996 MOTION: Council Member Andersen moved, seconded by Huber, to approve the Minutes of April 15, 1996, as submitted. MOTION PASSED 8-0-1, Schneider "abstaining." CONSENT CALENDAR MOTION: Council Member Fazzino moved, seconded by McCown, to approve Consent Calendar Item Nos. 2 - 4. 2. Contract between the City of Palo Alto and Shelton Roofing for Cubberley Wings I and D Reroof Project; change orders not to exceed $5,000. 3. Contract between the City of Palo Alto and Davey Tree Expert Company for the University Avenue Magnolia Project; change orders not to exceed $5,087. 4. Ordinance 4354 entitled "Ordinance of the Council of the City of Palo Alto Amending Section 18.08.040 of the Palo Alto Municipal Code (The Zoning Map) to Change the Classification of Property Known as 2700 Ash Street from RM-40 to PC" (1st Reading 6/24/96, PASSED 9-0) MOTION PASSED 9-0 for Item Nos. 2 - 4. AGENDA CHANGES, ADDITIONS, AND DELETIONS City Manager June Fleming announced that Item No. 5 had been removed from the Consent Calendar and would become Item No. 6A. PUBLIC HEARINGS 6. PUBLIC HEARING: Consideration of Protest of Diablo Landscape Maintenance, Inc. and Change Order Amendments for Landscape Services Mayor Wheeler explained Item No. 6 was the result of a protest by an unsuccessful bidder, Diablo Landscape Maintenance, Inc. (Diablo), for the City's contract for landscape maintenance services at City facilities. Director of Parks and Golf Division Paul Dias said the staff report (CMR:317:96) had been presented in an effort to provide an opportunity for Diablo to rebut staff's position.
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Council Member Andersen asked for a clarification of crew hours versus annual estimated hours per site, which had appeared to be part of the issue. Mr. Dias said staff's Invitation For Bids (IFB) document required annual hours to accomplish a task. All contractors except one had provided an estimate of the total annual hours necessary to accomplish a job. Diablo had provided crew hours, assuming the job would require two or three crews, therefore, the number of estimated hours were substantially less than any other contractor. Council Member Simitian asked whether Diablo's bottom-line bid price had been lower than the recommended award. The staff report (CMR:317:96) indicated the job had not been bid based on hours but what would be required to accomplish the job, even though staff had requested the number of estimated hours. Mr. Dias said the job had been bid for a dollar amount and also had requested estimated hours. Council Member Simitian asked whether the bottom-line price for Diablo had been less than the bottom-line price for all other applicants. Mr. Dias replied yes. Council Member Simitian asked whether the only issue was whether or not Diablo had presented staff with accurate hourly costs in the submitted bid. Mr. Dias replied yes. Council Member Simitian clarified even after Diablo had explained its bid, and staff understood Diablo had given the lowest bottom-line cost, staff had been troubled by the ambiguity and correction or clarification of the hourly cost as a component of the bid. Mr. Dias replied yes. Council Member Simitian was concerned about reference made in the staff report (CMR:317:96) not just to the issue of Diablo's nonresponsiveness to the hourly rate, but to Diablo's ability to perform. The decision suggested the reason for denying the bid was not because the bid was nonresponsive but because of staff's concern about Diablo's ability to perform, which was why the nonresponsive issue had been raised. If the bid had truly been nonresponsive, he was unclear why the issue of the ability to perform had been raised in the staff report. Senior Assistant Attorney Grant Kolling said staff had advised the City Attorney's Office of detrimental inferences and information received from the City of San Jose. Subsequently, he had informed
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staff the City could consider the information. However, because Diablo had not formally been advised in the letter of rejection that the grounds for rejecting the bid included such information, said information could not be used in staff's recommendation to Council concerning the bid. Therefore, the information had been provided as information only. Council Member Simitian said if the information had not been the basis upon which the bid had been rejected, it should not have been included in the staff report (CMR:317:96). He asked why the bid had been nonresponsive if the job had been bid on a per-job basis rather than hourly basis. Mr. Kolling said after staff examined the Diablo bid and the hours in connection with the bid price, the hourly rate had been recalculated and staff realized something might be incorrect. Mr. Dias said a red flag had been raised when Diablo's original bid was approximately half that of the other bidders. Staff had raised the issue after checking the bids for errors and omissions. Diablo had asked to change the bid document. Council Member Simitian confirmed Diablo had quoted a certain price in the bid to accomplish the job. Mr. Dias said the price per hour had been changed by Diablo. The original price per hour had been approximately $32 per hour. In subsequent discussions with staff, Diablo had changed the price to $16.50 per hour. Later, in a written change to the bid, the price had been changed to $14.47 per hour and discrepancies continued to arise.
Council Member McCown clarified staff=s evaluation of a bidder was based on the price and included a "reality check" based on some criteria, i.e., whether the proposed work was consistent with what the City sought and consistent with the dollars. Mr. Dias had raised the issue of the hours initially placed on the bid document being half the next lower bidder suggesting something not in comport with reality. When pressed on the issue, Diablo explained by describing the crew hour-method which lumped the crews together rather than total quantity of hours; and after recalculating to give an apples-to-apples comparison with other bidders, a dollar figure on an hourly basis resulted without providing the exact man-hours. Based on the information, as well as information from the City of San Jose, staff had concluded sufficient discrepancies existed to not award the bid to Diablo. Mr. Kolling said that was correct. Council Member Andersen believed staff had indicated that when Diablo altered the hours, even if the amount per hour were altered, the bottom line never changed.
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Mr. Dias said that was correct. Council Member Andersen believed Diablo was attempting to comply with staff's structure since the bottom line never changed. Mr. Kolling said the bottom line had actually changed because when Diablo converted crew hours to man-hours. Council Member Andersen asked whether Diablo had been well-informed about the time of the Council hearing that evening. Mr. Dias said Diablo had previously been notified and reminded again on Friday, July 5, 1996. Council Member Andersen asked whether Diablo was expected to appear that evening. Mr. Dias replied yes. Diablo's letter of protest had indicated an appearance would be made at the Council meeting that evening. Mayor Wheeler asked whether Diablo had obtained knowledge of other bids at the time it had revised its figures and converted them into man-hours. Mr. Dias replied yes, the bids had become public documents. Council Member Simitian asked whether the job had been bid on a bottom-line basis, whether the job had been bid on an hourly basis, or whether the bottom-line cost for the sites involved changed after a clarification had been made on hours from Diablo. Attachment A of the staff report (CMR:317:96) indicated a total for all sites cost, presumably the basis on which the bid had been awarded, while an indication as to the number of hours involved did not indicate the job was bid on the basis of hours but on the basis of cost per site. If an adjustment had been made to the hourly cost, when it was a job per site, no unfair advantage would have resulted. The staff report indicated Diablo had been passed over because of an unfair advantage in being able to rearrange the bid after bids had been made public, which was a legitimate issue to raise. However, staff had earlier indicated the bottom-line price had been the same before and after the discussion with the only change in the internal accounting on the hourly cost. Parks Supervisor Kate Rooney said the dollar amount for the bid sites had not changed, however, Diablo's quote per hour at the meeting had changed. Council Member Simitian asked whether the bid was lower or the internal cost assumption lower. Ms. Rooney said the bottom line had remained constant; however, contradictory information had been given between the presentation of materials.
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Mayor Wheeler declared the Public Hearing open. John Gachina, 853 Rosita, Los Altos, another bidder for the landscape maintenance contract, said he had worked with the City for 12 years. In an examination of numbers, costs, and staffing, $14 per hour was unrealistic. Council was encouraged to closely examine the Diablo bid and seriously consider not using Diablo because of the errors. The other bidders had a better track record. Mayor Wheeler declared the Public Hearing closed. City Attorney Ariel Calonne asked Mr. Kolling to address the question Council Member Simitian had raised concerning why staff had considered Diablo's bid nonresponsive. Mr. Kolling said a bid could be considered nonresponsive for many reasons, but a typical consideration was a mathematical error. Although Diablo's bid was the lowest, in comparison with other bidders, staff knew something was wrong. Staff was entitled to verify with Diablo whether, in fact, the bid was the one it actually wanted to submit. Diablo had said the bid amount was based upon the number of crew hours and an hourly rate. Diablo had made two errors: 1) misstating the hours as intended by the bid, e.g., giving crew hours instead of man hours; and 2) at the May 8, 1996, meeting, Diablo stated the hourly rate was $16.50 rather than $14.67. The courts had indicated the mistake factor could be used in determining whether an error or irregularity in the bid should be accepted, waived, or rejected. The courts had also indicated if the mistake materially affected the amount of the bid, which would confer a competitive advantage on the bidder, the error could not be waived, which was why staff had determined the bid could not be waived. MOTION: Council Member McCown moved, seconded by Kniss, to approve the change order amendments to the existing 21-month contracts with Gachina Landscape Management for $45,181; and Four Seasons Landscape Maintenance in the amount of $22,860 for landscape services commencing on July 9, 1996, and ending on June 30, 1997. Further, authorize the City Manager or her designee, to negotiate and execute one or more change orders to the existing contracts to cover unforeseen work that may develop. The value of the change orders shall not exceed $4,518 for Gachina Landscape Management and $2,286 for Four Seasons Landscape and Maintenance. Contract Change Order Amendment between the City of Palo Alto and Four Seasons Landscape and Maintenance for Landscape Maintenance Services
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Contract Change Order Amendment between the City of Palo Alto and Gachina Landscape Management for Landscape Maintenance Services Council Member McCown said the City had never received a direct statement from Diablo as to how many hours would actually be dedicated to City parks. Because Diablo had manipulated the hourly rate, an unknown existed as to the level of service the City would receive. Therefore, staff had determined the bidder which appeared to be the lowest bidder was, in fact, not a responsible bidder. A similar situation had been experienced with the CalTrain Joint Powers Board when an extraordinarily low bid had been received during a competitive bidding process. After asking many questions of staff about how the one bid could be so far below the competition, with no reason for the difference, the award had been awarded to the lowest bidder. After a very short period of time, the bidder had realized it had completely misjudged the level of service required and subsequently withdrew from the project. The City was not well served by using price as a basis of evaluating bidding when other mechanisms were at its disposal. Staff had brought forward the correct recommendation. Council Member Kniss said since the defendant had not appeared after making a written request and the item was placed on the agenda, the situation was not one which could be supported. Council Member Simitian opposed the motion. Council Member McCown might be correct in her assumption staff had brought Council the right recommendation in terms of producing the best quality work at a reasonable price. However, the way in which the City had arrived at its point was troubling. The two issues were the description of a "nonresponsive" bid, e.g., responsive to the Request for Bid, and whether or not the lowest bidder was responsible. The two issues were different substantively and legally and had been merged in conversation and the staff report (CMR:317:96). If staff had not considered Diablo a responsible bidder who could perform the job, staff should have made that observation and brought to Council a recommendation based on said information. Council was being asked to reject a bid as being nonresponsive, based on information contained in the document describing Diablo as a nonresponsible bidder. As to whether or not the bid was responsive, page 3 of the staff report (CMR:317:96) stated "The City Attorney has advised that, under the circumstances, Diablo has attempted to vary its bid and that this is a material change which, if accepted by the City, would confer an unfair competitive advantage on Diablo," given the fact Diablo had been allowed to make changes after the bids had been published, which was untrue. A bid price had been submitted prior to the bids becoming public after which the bid price had remained the same. Diablo had not attempted to vary its bid in terms of the cost to the City and gained an unfair advantage by looking at what the other bidders had done. He understood staff's concern about the fact Diablo was unable to determine the number of
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hours the job would take, by which a case could have been made. However, the City had not arrived at the current conclusion in a clean way and issues had been mismanaged. MOTION PASSED 8-1, Simitian "no." REPORTS OF COMMITTEES AND COMMISSIONS 6A. (Old Item No. 5) Request for Authority to Participate as Amicus Curiae in Thomas, et al. v. City of East Palo Alto, First District Court of Appeal No. A073656 Joseph Violette, 95 Crescent Drive, said the City of East Palo Alto (EPA) had requested the City to support the amicus brief on the viability of parcel taxes. Article 8 of the State Constitution limited property taxes to 1 percent of the value of the property. A parcel tax, if not a property tax, would allow exceeding the 1 percent, support of which would send the wrong message to property tax owners since any time property was used to increase revenue it would be considered a property tax. The authority would allow bypass of limits in the Constitution. Council Member Fazzino said EPA had followed the rules. Proposition 13 related to ad valorem property taxes, while the parcel tax was a non-ad valorem property tax. Unfortunately, many courts and others had misinterpreted the original meaning of Proposition 13, which was a very limited ad valorem property tax rejection which had been applied to sales tax and other taxes. Although appropriate for EPA and other cities to increase non-ad valorem property taxes, EPA was in desperate need of additional revenue without which it would be unable to exist as an incorporated community. MOTION: Council Member Fazzino moved, seconded by McCown, to approve the City of Palo Alto's participation in joining the amicus effort. MOTION PASSED 9-0. ORDINANCES 7. Ordinances re Amending Chapter 9.04 of the Palo Alto Municipal Code Relating to Alcoholic Beverages to Add Section 9.04.030 Prohibiting Possession of Open Containers of Alcoholic Beverages Within or Adjacent to Businesses Licensed for Retail Package Off-Site Sale of Alcoholic Beverages; Amending Chapter 9.48 of the Palo Alto Municipal Code Relating to Obstructing Streets and Sidewalks to Add Section 9.48.025 Prohibiting Sitting or Lying Down Upon the Public Sidewalk on University Avenue Between High Street and Waverley Street; and Repealing Chapter 9.44 of the Palo Alto Municipal Code Relating to Distribution of Handbills, Advertising, and Samples on Public
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and Private Properties and Enacting a New Chapter 9.44 of the Palo Alto Municipal Code Prohibiting Solicitation of Employment, Business, or Contributions Within Public Parking Lots Mayor Wheeler said a considerable number of questions had been asked and concerns expressed when the possibility of the proposed ordinances had first been presented. Council had asked staff to return with the items after obtaining wide community advice. The Human Relations Commission (HRC) chairperson had asked that the HRC be given an opportunity to discuss the sitting and lying down ordinance at its meeting the following Thursday. Since Council would probably not take any action on the ordinance that evening, it was appropriate for discussion at the HRC. Council Member Fazzino clarified the Council was providing direction on the three items after which, if a majority of Council approved, the City Attorney would return with actual ordinances. Mayor Wheeler said the ordinances attached to the City Attorney's Report dated July 3, 1996, were actual ordinances. Further direction could be given to staff or Council could introduce first readings except on the sitting or lying down ordinance. Council Member Fazzino said there were two versions of the sitting and lying down ordinance before Council that evening, therefore, policy guidance could be provided. All three items could return at another meeting at which time Council would actually vote on the ordinances. Mayor Wheeler replied yes. Council Member Fazzino asked what was meant by "closing the public hearing." Mayor Wheeler said the public hearing would be continued to the next time the Council heard the item. Any person who had spoken at the meeting that evening to the ordinances would not be able to speak again. Council Member Fazzino said some members of the HRC viewed the item as a homeless issue, which he personally did not, and that the items had not been submitted to the HRC as a homeless issue. Mayor Wheeler said Council Member Fazzino was correct. Council Member Schneider asked about Mayor Wheeler's reference to
continuing the public hearing and Council=s discussion. Mayor Wheeler said in order to ask staff for additional information for clarification and, if necessary, to give further direction, the public hearing would not be closed.
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Council Member Schneider said it would be most beneficial to hear the entire public hearing with no direction given to staff until the public had been given the opportunity to speak. City Attorney Ariel Calonne said the ordinances attached to his report dated July 3, 1996, were ready for approval, if Council desired. However, staff expected Council to consider the ordinances and provide direction for changes. If Council wanted to proceed with the sitting and lying down ordinances, direction would be needed regarding the temporary street closure or parade ordinances and to examine issues surrounding street performers. If direction were given on that ordinance, which was not currently before Council, the public would need to be allowed to speak again. If the sitting and lying down ordinance were approved as staff requested, additional public comment as to the parade and street performer portions would be necessary. Council could make a policy decision as to whether or not to allow the public to speak on changes. Council Member Andersen asked after hearing from the public, if the Council decided not to proceed with any portion of the proposed ordinances, whether no further consideration by the HRC would be necessary. Mayor Wheeler replied yes. Mr. Calonne said Council would be required to allow the public to speak to the street closure or street performer ordinances when it came before the Council. The City Attorney Report of July 3, 1996, followed up on questions the Council had raised on June 24, 1996, about the consistency of a sidewalk obstruction ordinance to other current City processes. Council had also asked a number of factual questions about what the ordinance would do, why it was necessary, and about the current situation. The Palo Alto Police Department (PAPD) had prepared an analysis contained in the staff report regarding factual questions. As to consistency and encroachments for cafes, the Public Works Department's standard was an eight-foot clearance, i.e., before anyone could put tables and chairs on the sidewalk, a minimum eight-foot clearance was required to the nearest tree well or other obstruction. University Avenue averaged close to 12-feet up and down the length being discussed. As staff had delved into the sitting and lying down ordinance in greater detail, and in examining Council's questions about other processes used to regulate, just as the speech related issues were bound to do, the issue expanded. Staff was taken into its existing temporary street closure ordinance which was administered by the PAPD. Temporary street closures could be called parades, i.e., the ability to authorize large public events on streets and sidewalks. The ordinance needed work, and it was the appropriate time to deal with the issue if Council chose to proceed. Additionally, because of potential First Amendment issues, Council should also examine a regulatory process for street performers, e.g., musicians and
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others, using the sidewalks or other public areas for expressive performing art or conduct. If Council wanted to proceed with the sitting and lying down ordinance, direction should also be given to examining the parade and street performing ordinances. Police Chief Chris Durkin said police officers had been assigned to the Downtown since April 1996 for the purpose of addressing a number of safety issues. While the PAPD had received overwhelming support for the increase in service from merchants and members of the community, complaints were still received concerning behavior associated with drinking, solicitations, and individuals blocking sidewalks. The three ordinances before Council were reasonable and consistent with prior Council direction to address safety issues Downtown. Council was urged to support the ordinance relating to obstructing the sidewalk or street. When people sat on a sidewalk, the normal flow of pedestrian traffic was impeded, putting others at risk. Given the high volume of pedestrian traffic on University Avenue, such behavior was frequently startling to people looking for a car, restaurant, business, or simply enjoying the atmosphere. Furthermore, people obstructing the University Avenue sidewalk created a significant hazard for the elderly, some of whom used walkers, canes, visual impairments, and were not capable of reacting to someone sitting on a sidewalk. Lytton Gardens currently had a population of 400 ambulatory seniors who were at risk due to the inability to safely negotiate around individuals sitting on a sidewalk. Police officers assigned to the Downtown had witnessed people of all ages nearly falling as a result of attempting to negotiate around individuals sitting on the sidewalk. The public complained, yet the PAPD had no authority to correct the situation. In his 23 years with the PAPD, he could not recall University Avenue ever being so busy. The enactment of the ordinances was necessary for Council to fulfill its goal of creating a safe environment on University Avenue and would be a useful tool for the PAPD. Council Member Andersen clarified the City currently had a four-foot encroachment allowable for restaurants when chairs were brought out on the sidewalk. Mr. Calonne said in areas where a tree-well was present, the allowable space might be less than four feet. However, on a 12-foot sidewalk, the encroachment was four feet. Council Member Andersen understood the ordinance would allow restaurants eight feet. Mr. Calonne replied yes. Council Member Andersen asked whether the only legal basis for the sitting and lying down ordinance was that people sitting or lying down on the sidewalk were impeding the normal flow of traffic.
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Mr. Calonne said the impediment to the flow of traffic was not the only justification for the sitting and lying down ordinance. An area which had arisen in the Seattle ordinance was interest in economic vitality. Staff had avoided such justification because the dissenting opinion in the case specifically pointed out that using a street obstruction ordinance to achieve economic vitality was questionable in the judge's view. Council Member Andersen believed the same would be true in the Palo Alto community. Mr. Calonne was mainly concerned with how the courts would react to the ordinance. Differences might be raised between the manner in which people reacted to physical objects, such as a table on the sidewalk or an individual sitting on the sidewalk. The differences conceivably could justify different legislative approaches. Council Member Andersen said Mr. Calonne had identified the blocking of streets, parades, and musical entertainers, etc., as areas which would also need cleanup because of a connection. He asked whether the issues could be separated. Mr. Calonne said passage of a sitting and lying down ordinance would be the factor which would require the need for considering other areas. The parking lot solicitation and open container ordinances would not result in a need for any other work. Council Member Kniss asked the estimated number of known panhandlers who caused difficulties in the Downtown. Mr. Durkin said approximately 20 individuals comprised the number of panhandlers who caused the difficulties in the Downtown. Council Member Kniss asked whether most of the 20 individuals were known to the PAPD. Mr. Durkin replied yes. Council Member Kniss asked what length of time the individuals had been known by the PAPD as panhandlers. Mr. Durkin said in some cases the PAPD had known of individuals as panhandlers for several years. Council Member Kniss asked whether several years meant more than three years. Mr. Durkin replied yes. Council Member Kniss clarified panhandling had become an alternate means of earning money for the individuals. Mr. Durkin replied yes, for some individuals.
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Council Member Kniss said frequent reference had been made to health problems, but health problems were normally handled by the counties not the cities. Mr. Durkin said Santa Clara County (the County) handled Palo Alto's health problems. Council Member Kniss said the City had frequently been asked why more programs dealing with mental or physical health did not exist, the answer of which was the City had no programs nor the funding. Mr. Durkin said the services were provided through the County. Council Member Kniss clarified the way to have more services was through the County. Mr. Durkin replied yes. Council Member Kniss clarified most services had been discontinued under former Governor Reagan in the late 1960s and 1970s. Mr. Durkin agreed there had been a decline in health services. Council Member Kniss asked how many days per week either food or meals were available to the homeless on a regular basis in Palo Alto. Mr. Durkin thought five, but possibly more. Council Member Kniss asked about the number of Single Room Occupancy (SRO) units located in Palo Alto and the 104 SROs which would be implemented some time in Palo Alto over the next six to eight months. City Manager June Fleming was unsure of the time schedule; however, the project was moving according to schedules as necessary funding was received. Council Member Kniss asked whether or not the approximately 20 individuals under discussion had access to Social Security Income (SSI) or some other means of support on a regular basis. Mr. Durkin thought many had access to such support, but the exact extent was unknown. Council Member Kniss asked how many of that number were homeless. Mr. Durkin said staff would attempt to provide the information at the following Council meeting. Council Member McCown asked about page 4 of the District Court opinion attached to the City Attorney's Report, Berkeley Community
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Health, Inc., et al. v. City of Berkeley, which mentioned the Berkeley ordinance as saying "substantially blocking free passage" which, although not the part of the ordinance being challenged, might be helpful. She asked Mr. Calonne to obtain a copy for the Council. Mr. Calonne said Palo Alto had a blockage ordinance which did not apply to people. Seattle also had a general blockage ordinance which had also come up in the dissenting opinion in the Seattle case, Roulette v. City of Seattle, where it had been argued as another way to solve the problem which the ordinance sought to solve. Council Member McCown said the District Court had made the same point with respect to Berkeley, which stated the city's concerns could be met by ordinances which would restrict blocking of sidewalks. A view to the ordinances would be helpful in comparison with what Mr. Calonne had presented to the Council. Vice Mayor Huber said page 5 of the City Attorney's Report indicated "on its face, the proposed ordinance would prohibit street musicians and performers from sitting on a sidewalk and performing," which would be one reason for the City to consider such an ordinance. He asked whether such an ordinance was permit driven. Mr. Calonne said the ordinance was very minimally permit driven. Street performers were engaged in a protected activity so whoever issued the permit would not have much discretion. Typically such ordinances called for name, address, what would be done, and where and required the official to issue the permit without the exercise of discretion. The courts had viewed the exercise of discretion as a form of impermissible censorship. The ordinance was more like a registration ordinance rather than a discretionary permit. Vice Mayor Huber asked whether the ordinances contained time prohibitions. Mr. Calonne said the ordinance could contain a time prohibition and could also deal with the amount of space provided. Vice Mayor Huber asked whether the ordinances also dealt with locations. Mr. Calonne said the ordinances could deal with locations. Vice Mayor Huber asked whether the type of ordinance mentioned by Mr. Calonne would deal with locations. Mr. Calonne replied no, however, locations could be specified should Council so desire.
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Council Member Fazzino said the City Attorney had provided the Berkeley ordinance for information purposes yet continued to stand by the Seattle approach because it was more limited, focused on a specific commercial area, and because it had been upheld by arguably the most liberal and progressive appeals court in the country. Mr. Calonne preferred Palo Alto's approach rather than either
Berkeley=s or Seattle=s. Seattle banned sitting and lying down within an entire commercial area. If the courts ultimately concluded that sitting or lying down were a form of expressive conduct, meaning if the courts concluded it was a communication means, then the City would need to be concerned about providing alternative places for communication. Berkeley had been sensitive to that aspect by not allowing sitting or lying down within six feet of the front of a building in all commercial areas. The theory was to provide a communication corridor on the sidewalk if the courts judged sitting or lying down was communication. The proposed approach for Palo Alto was more limited than either Seattle or Berkeley, e.g., a few blocks of one street, not an entire district. No side streets had been recommended for coverage nor were the two major arterials parallel to University Avenue. In
comparing the three, staff=s recommendation was more limited which did not meant more could not be included. Staff wanted to present Council with something which would be effective for the problems the PAPD had identified and not go further than necessary. Council Member Fazzino clarified the ordinance had been limited to one street based on the information the PAPD and members of the public who had provided staff with the problems encountered. Mr. Calonne replied yes. If the situation changed, the PAPD would inform staff. Council Member Fazzino clarified a significant number of senior housing units had been added in the Downtown over the past 10 years. City Manager June Fleming said that was correct. Council Member Fazzino said based on what the PAPD had indicated, the significant reason for the proposal was because of concerns on the part of seniors and disabled persons in the Downtown area which was much more a residential area than it had been 10 to 15 years before. Mr. Durkin replied yes. Council Member Fazzino clarified because of the large number of people in the Downtown, there had been cases where people had actually been forced into the streets to traverse the University
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Avenue area, particularly in early evening hours, creating a very unsafe situation for pedestrians regardless of age. Mr. Durkin replied yes. Todd Davies, 3327 Alma Street, spoke against the proposed ordinance banning sitting and lying down which would unduly infringe basic civil liberties, the justification of which could not be legally upheld but was based on attempts to provide safety for people walking along the street. The ordinance was merely another means by which the PAPD could drive out the homeless and street kids. The City's laws should not be based on lies. John Eden, residentially challenged, spoke against the proposed ordinance banning sitting and lying down. Joe Baldwin, 280 Waverley Street, spoke against the proposed ordinance banning sitting and lying down. Sidewalk sitters had not harmed retail sales, which was up 16 percent over Stanford Shopping Center's 2 percent increase. Pedestrians were safer around a sitting person than a skateboarder or bicyclist. Seattle's ordinance was not similar to Palo Alto's. Seattle sought to assist the homeless along with the ordinance. Jeff Vaillant, President, Palo Alto Chamber of Commerce, 325 Forest Avenue, said the Chamber had not had the opportunity to consider a formal position on the ordinance before Council. Safety, which appeared to be a time-constrained issue occurring between 7:00 a.m. and 11:00 p.m. in the ordinance, should be a 24-hour concern and should be of concern on more than just one street. It was unclear how the ordinances would assist the PAPD in the Downtown. The Chamber deferred to the PAPD in terms of law enforcement but wanted all citizens of Palo Alto free of open solicitation and open containers and free to walk about without fear of one's personal health and safety. Barbara Gross, Member, Board of Directors, Chamber of Commerce, 325 Forest Avenue, encouraged Council to address the desire to have citizens be considerate of one another in an intelligent and caring manner. The Chamber was interested in the ultimate health of the Downtown; therefore, the manner in which concerns were approached should be done so in a way which would remind all citizenry to be responsible for personal actions at all times. Kathleen Haney, 235 Hamilton Avenue, thanked the Council and the PAPD for its efforts to make the Downtown a clean and safe environment. All the people who caused the problems in the Downtown should be considered, not just the homeless. The Another Way Campaign as well as the SROs should be encouraged. Sacha Leenders, 276 University Avenue, representing Starbucks, supported Council's attempt to deal with the number of people in
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front of Starbucks every day and expressed a desire to work together with all the groups involved. Harlow L. Williams, Jr., 3185 Kipling Street, spoke against the proposed ordinances, equating the current tactics of Council and staff with a war. Margaret Ash, 3901 El Camino Real, spoke against the proposed ordinances. The homeless population continued to increase. Nothing in the City's Charter prevented assistance to the homeless. The safety of pedestrians was compared with the safety of the homeless. Raymond Giraud, 2200 Byron Street, spoke against the proposed ordinances. The City's problems would not be solved by making a noncriminal act a criminal act. Assistance could be given to nonprofit organizations attempting to feed and house the homeless rather than arresting the homeless. Lise Giraud, 2200 Byron Street, quoted an article that appeared in the Palo Alto Weekly on Friday, July 5, 1996, concerning the proposed ordinance, taking issue with the statement "the ordinance was focused on a particular behavior, not a particular class of people." The City was encouraged to provide housing for the homeless or some other solution which brought dignity to the homeless and self-respect to the City. Carl McConnell, 285 Hamilton Avenue, Suite 320, said he would speak when the issue returned to Council. A letter had been submitted (on file in the City Clerk's Office) in opposition to the proposed ordinance. Eva Bruguera, 3537 Murdoch Drive, spoke on behalf of seniors desirous of sitting on University Avenue benches because of physical frailty but who were unable because of younger people sitting on the benches. Paul Gilbert, 785 Barron Avenue, agreed with comments made by Mr. Baldwin, particularly expressing opposition to the sitting and lying down ordinance because of civil liberties issues. The materials from staff appeared to attempt to justify something which was not at the core of the City's concerns. Roxy Rapp, 373 University Avenue, had proposed the encroachment permit to allow tables and chairs on University Avenue, which had proven successful. However, because of that success, tables and chairs often encroached on the sidewalk, which was difficult to police by young personnel. Richard Weiner, 171 Bryant Street, said he would speak when the issue returned to Council.
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Tina Gutierrez, 2850 Middlefield Road #224, Chairperson, Human Relations Commission, said the HRC had not had an opportunity to review the ordinances, understanding Council Member Fazzino's point the item was not being referred to the HRC. Although Council might not perceive the item as a homeless issue, perception was otherwise and, therefore, should be addressed effectively. The Homelessness Task Force (HTF), which had been appointed by the HRC and given a very narrow focus, had been created in response to a report issued by the Aggressive Panhandling Task Force (APTF) over a year before about which no action had been taken due to legalities. Members of the HRC had met with the City Manager and appointed the HTF to examine the services provision from the APTF. Recommendations were close to forthcoming from which the HRC could make recommendations to Council. A more regional and comprehensive approach was desired. The Seattle City Attorney's comments were reiterated concerning meeting the needs of street people while cracking down on escalating misbehavior, urging a comprehensive approach. RECESS: 9:35 P.M. - 9:50 P.M. MOTION: Council Member Schneider moved, seconded by Huber, to bring forward Item Nos. 8 and 9 for the purpose of a continuance. MOTION PASSED 7-0, Rosenbaum, Simitian absent. 8. Air Cargo Operations Proposed for Moffett Federal Airfield - Draft Environmental Assessment 9. Council Members Fazzino and Kniss, and Vice Mayor Huber re Traffic/Transportation Management Issues MOTION TO CONTINUE: Council Member Schneider moved, seconded by Huber, to continue the items to a date to be determined by staff. MOTION TO CONTINUE PASSED 7-0, Rosenbaum, Simitian absent. CONTINUED DISCUSSION OF ITEM NO. 7 Monty Black, 330 Embarcadero Road, Stanford student recently involved in Urban Ministries at the drop-in center, had heard comments at the drop-in center to indicate the general feeling was that the proposed ordinances were targeted at the homeless. Council was encouraged to seek other solutions. Other objects on sidewalks were also dangerous for the blind or elderly. The proposed legislation was an attempt to quell a perceived threat, e.g., the homeless person. Lee Ringleman, 630 Hawthorne Avenue, said he would speak to the issue when it returned to Council. Lee Alton, homeless, spoke against the proposed ordinances, seeking a survey from the public to determine how Palo Alto citizens really
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felt about the issue, and agreeing with Mr. Black's comments about the perception of a particular group of individuals. Cary Andrew Crittendon, Chimalus Drive, Homeless Advocate, said although statistically the City appeared to be reducing poverty, the prior aggressive panhandling ordinance had merely rid the City some of its poor. Sufficient seating should be provided if the City wanted to make it difficult for people to sit elsewhere. Council was urged not to pass the ordinance. Ateret Haselkorn, 2881 Bryant Street, represented the students of Palo Alto, expressed opposition to the proposed ordinances. Musicians sitting along the streets were one of the main attractions to the Downtown and brought much business to University Avenue. If panhandling were the major problem, a law should be passed against aggressive panhandling. The proposed ordinance would be extremely difficult to enforce since it was in direct violation of people's rights. The City should more closely examine why people were panhandling on the streets and seek to provide solutions such as shelters, job training opportunities, etc. John Chang, 159 Melville, said he would speak to the issue when it returned to Council. David Lessani, 724 Arastradero Road, Apt. 205, spoke on behalf of Gunn High School students in opposition to the ordinances. Musicians would find it difficult to play instruments while standing. Sidewalks were considered public property and all people were considered the public. The poor should not be punished. Even walking people were an obstruction to others occasionally. Money should not be spent on such an ordinance. Purusha Obluda, 31590 Page Mill Road, Los Altos Hills, spoke against the proposed ordinances as unconstitutional and unfair, clearly aimed at a particular class of people. The City was urged to seek other solutions to its problems. Nancy Samalson, 841 Esplanadas, Stanford, said the City should be honest about the fact its citizens were upset about panhandling, but the proposed ordinance was not the solution to the problem. Palo Alto contained citizens who had always demonstrated compassion in the past and could come up with basic help for society. The poor were a symptom of something bigger. Glenna Violette, 95 Crescent Drive, spoke in opposition to the proposed sitting and lying down ordinance and the spending of large sums of money to fix up Council Chambers and the Downtown while neglecting other areas of need. Yaaminiu Lalitha Rao, 605 Towle Way, spoke on behalf of the youth against the proposed discriminatory ordinance. The City was encouraged to work with others to provide low-cost housing, etc.
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Michael James, 650 Coleman Avenue, Menlo Park, spoke against the proposed ordinances as a violation of human rights. His assistance to a blind lady around chairs at Starbucks and another woman crying one morning were merely humanitarian efforts the City should learn to emulate. Milton A. Thompson, 488 University Avenue No. 201, spoke against the proposed sitting and lying down ordinance, especially under the guise of a safety issue. The ordinance would criminalize activities of the homeless and was inhumane and fascistic. Michael Schwartz, 110 Pasito Terrace No. 218, Sunnyvale, spoke in opposition to the proposed ordinances. Millions of dollars were being spent to advertise United States products in other countries, yet there was insufficient funding for toilet paper in poorer schools, etc. The problem in Palo Alto was not one of obstruction but of the denial of humanity. Robert A. Morgan, 1150 Byron Street, spoke on behalf of the poor in opposition to the proposed ordinance. The country had become over concerned with respectability and under concerned with compassion. Focus should be placed on how to assist mankind rather than on sweeping the poor off the street. Gabriel Bereny, 727 Sutter Avenue, agreed with many of the earlier speakers about the ingenuousness of claiming the proposed sitting and lying down ordinance was not aimed at the homeless, making more difficult the lives of people already having difficulties simply to make moral blinders more impermeable. Lisa Valentino, 1004 Emerson Street, would find it difficult to associate herself with a city which chose to place money and money-making above the rights of individuals who were down on their luck. Kathy Barnett, 451 Alger Drive, wanted a safety ordinance passed which addressed real problems, e.g., skateboarding, red light running, and lack of benches. The problem of panhandling had improved and the change was appreciated, but she also appreciated people giving to others in greater need. Alan Cheilek, 560 Berkeley Avenue, Menlo Park, spoke against the sitting and lying down ordinance, expressing concern at the continual abdication of personal responsibility to deal with other human beings, i.e., bringing in the police to aid in interpersonal relationships. Ken Russell, 159 Melville Avenue, spoke against the sitting and lying down ordinance as being designed against a certain class of people. As elected officials representing the public good, Council was elected to lead in a world class manner, rather than by fear.
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Council Member Fazzino said the public testimony had been excellent and had been based on issues, proposals, and impacts. He had appreciated the large majority of testimony which had been positive and constructive. The testimony had also included passionate, but not illuminating, statements. The term "fascist" should not be trivialized, which was outrageous, in order to get a point across. Debate within Council Chambers should remain at a positive level. Much more could be done with respect to the homeless in Palo Alto, however, an apology would not be given for the actions of Palo Alto with respect to the homeless. No doubt the actions of the federal and state governments over the past 20 years had led to the current situation, which had put many people on the street. A number of people had chosen the homeless lifestyle. Palo Alto spent more on homeless services than any city between San Francisco and San Jose. At the same time, more services were needed such as rest rooms in the Downtown, shelters, etc. However, the issue before Council was a separate issue. The proposals were excellent to improve Downtown safety. The influx of people into the Downtown area over the past five to ten years was due to the economic success, the building of more residential units for seniors and others, etc., the result of which was the presence of street people, skateboarders, etc. The increased police presence in the Downtown over the past few months had made a significant impact such as fewer incidents of crime, etc. The PAPD had requested additional proposals to increase public safety in the Downtown indicating the ordinances were necessary to preserve the rights of citizens, in particular seniors and the disabled. As the only Council Member living in the Downtown area, he had witnessed a disabled person a few weeks before having a very difficult time navigating around a person sitting on the sidewalk Downtown. He had also witnessed many people being forced into the streets, particularly during the early evening hours, because of people sitting and the crowds. The Seattle City Attorney was quoted, "People prone on sidewalks pose a potential hazard to pedestrians, especially the elderly, infirm, and visually impaired." He concurred with several speakers who had indicated there were other obstacles Downtown such as newsracks and tables, which were also being addressed. The first two ordinances relating to alcohol consumption and solicitation in parking lots were easy to support. Public intoxication was a significant reason for many problems in the Downtown. The proposal to prohibit open containers of alcohol would help reduce the incidents of public intoxication and perhaps prevent other problems as well. The proposal to prohibit soliciting in parking lots was long overdue. He had personally witnessed many people solicited in parking lots and had witnessed several older women in particular being afraid to get out of their vehicles out of fear for physical safety because of aggressive solicitation in parking lots. Citizens in the community had the right to safe access to and from public parking lots. With respect to the sitting and lying down ordinance, it was appropriate for the City Attorney to move forward and incorporate provisions with respect to street musicians, which was already proceeding along a parallel path, before bringing a
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final ordinance. Inclusion of the provisions was supported along with Version B, which extended the proposed sitting and lying down ordinance from Waverley to Cowper, which was a very busy stretch of University Avenue and also extended the law to 11:00 p.m., which was appropriate given the large number of people Downtown during the evening hours and the increased visibility problems associated with darkness. The Seattle ordinance had been found constitutional by the Ninth Circuit Court of Appeals, which was the most liberal, progressive court in the country. If such a measure could survive the Ninth Circuit Court, it would survive any appeals court, including the Supreme Court. The ordinance was constitutional. The request by the PAPD was a legitimate means of improving public safety. Hearing from members of the City Councils of Seattle, Santa Cruz, and Berkeley would be interesting, since the cities were among the most progressive in the entire country, all of whom believed similar legislation should have been adopted five to ten years before. The Downtown areas would not have been further degradated by public intoxication, aggressive soliciting, and sitting and lying down on sidewalks if such ordinances had been passed earlier. Instead, the progressive and compassionate communities had been forced to act after the situation had gotten out of control. Support should be given to the PAPD in its outstanding efforts to assure public safety Downtown or problems Downtown would fester and grow beyond the City's ability to address at a later time. It was entirely appropriate to hold all members of the community to certain community standards. The City Attorney's Report had very appropriately quoted a homeless advocate in Santa Monica regarding the issue of community standards, "I am firmly against criminalizing homelessness and persecuting individuals solely because of their poverty, but I also believe people need standards and limits on acceptable behavior regardless of their economic status. All people need structure and accountability in their lives. None of us can maintain our integrity and morality without pressure from our community. To exempt homeless people from healthy standards of living and socially useful modes of operating was to expect less from them as human beings than we expect from ourselves. That is ultimately disempowering, dishonest and socially destructive." MOTION: Council Member Fazzino moved, seconded by Schneider, to introduce the ordinances relating to alcoholic beverages and to the distribution of handbills, advertising and samples on private properties and enacting the new Chapter 9.44 regarding public parking lots. Further, that the City Attorney be directed to return with the Ordinance regarding the prohibition of sitting or lying down upon the public sidewalk in the form of Version B and with an inclusion of a revised temporary street closure and street performer ordinance. Ordinance 1st Reading entitled "Ordinance of the Council of the City of Palo Alto Amending Chapter 9.04 of the Palo Alto Municipal Code Relating to Alcoholic Beverages to Add Section
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9.04.030 Prohibiting Possession of Open Containers of Alcoholic Beverages Within or Adjacent to Businesses Licensed for Retail Package Off-Site Sale of Alcoholic Beverages" Ordinance 1st Reading entitled "Ordinance of the Council of the City of Palo Alto Repealing Chapter 9.44 of the Palo Alto Municipal Code Relating to Distribution of Handbills, Advertising, and Samples on Public and Private Properties and Enacting a New Chapter 9.44 of the Palo Alto Municipal Code Prohibiting Solicitation of Employment, Business, or Contributions Within Public Parking Lots" Ordinance of the Council of the City of Palo Alto Amending Chapter 9.48 of the Palo Alto Municipal Code Relating to Obstructing Streets and Sidewalks to Add Section 9.48.025 Prohibiting Sitting or Lying Down Upon the Public Sidewalk on University Avenue Between High Street and Waverley Street Council Member Schneider appreciated Council Member Fazzino's remarks. As a merchant and Council Member, she was more reviled by people who had spoken than anyone else. Her concerns, however, were legitimate and shared by a large number of people in the community. The ordinance did not merely deal with homeless people or panhandlers, but was a much larger issue. More needed to be done. The proposed ordinance was a blueprint for the future. The City needed to examine details and answer the concerns of individuals who had spoken. The City was proceeding in the healthiest and best way it knew how. Council Member Andersen asked how many reports of individuals who had tripped over people sitting or lying down on the sidewalk had been received. Mr. Durkin was unaware of any reports to the City or PAPD of people having tripped over people sitting or lying down on the sidewalk. Council Member Andersen asked about the penalty should the ordinance be passed if an individual failed to heed a first warning concerning sitting or lying down on the sidewalk. Mr. Durkin said a police officer could give the individual another warning or give the person an opportunity to leave. If there were no change, the police officer could make an arrest. Council Member Andersen asked about the punishment if a person were arrested. Mr. Durkin said the potential result of an arrest was a six-month jail term or $1,000 fine, which was highly unlikely. Council Member Andersen asked about the result of merchants being in violation of the proposed ordinance which required a posting
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that no liquor was to be open within a certain boundary of its borders. Mr. Durkin said the violation was an infraction. Council Member Andersen asked about the punishment for the infraction. Mr. Durkin said the result would be a fine. Mr. Calonne said the court periodically adopted a bail schedule which varied; but at the last reading, there was a $200 fine for a first offense which increased with each offense during the same year. Council Member Andersen asked about the penalty if a business had an encroachment permit and failed to have the minimum eight feet for passage. Mr. Durkin did not have exact figures. Council Member Andersen said concerns about littering by various individuals had been mentioned and asked whether the PAPD had littering laws allowing the police to act in such situations. Mr. Durkin replied yes. Council Member Andersen said the proposed ordinance had one purpose--to stop panhandling. The panhandling issue, homeless or not, was really what the issue was about. Such a course of action was illegal on the basis of freedom of speech issues, so it was being wrapped up in a manner which suggested a safety issue. However, he was not persuaded the City had any safety problems as a result of someone sitting on the sidewalks. As much as the City might not like people sitting on the sidewalks, there was no case or findings to indicate there was serious danger to anyone. MOTION TO TABLE: Council Member Andersen moved to table the issue. MOTION DIED FOR LACK OF A SECOND Council Member Andersen was disappointed and felt the City was acting in a manner which was inappropriate and unconstitutional. Council Member McCown tended to agree with Council Member Andersen for some of the same reasons. She was surprised at the lack of evidence and facts. The nature of the observations by the PAPD were very generalized, failing to make a compelling showing that the City had a significant hazard. She would be far more persuaded if more information had been given such as incidents of tripping, etc. Words had been used to express concern about the troublesome nature of the hazards presented to community members, senior
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citizens, etc., in the Downtown, but she queried how the hazard of the human being sitting on the location on the sidewalk compared with the difficulty in maneuvering in situations described. The magnitude of the problem was difficult to understand. Good faith differences of opinion were insufficient to enact such a far-reaching ordinance. When the ordinance returned from the City Attorney, she would particularly seek information about how the City currently handled sidewalk blockage situations, as already contained in ordinances, which should be sufficient to deal with the problems being identified. If returned in the exact form presented without further information, she would join Council Member Andersen at a subsequent time in opposing the proposed ordinance. She asked that the two ordinances be divided between the first reading of the two ordinances and the sitting and lying down ordinance. MOTION DIVIDED FOR PURPOSES OF VOTING: Council Member Simitian asked about the number of people observed sitting or lying down on the affected area on University Avenue at one time. Mr. Durkin said the number depended on the time of day, ranging from zero to as high as ten. Council Member Simitian clarified ten individuals could be sitting or lying down on the sidewalk in the affected area at a peak period all at one time. Mr. Durkin replied yes. Council Member Kniss supported the parking lot solicitation ordinance and the open containers was self-explanatory. The aspect of solicitation was probably as important as the sitting and lying down ordinance. Many complaints and distress had been voiced by the community about people who had been approached in parking lots in vehicles. Two years before in the Aggressive Panhandling Committee, it had been one of the most mentioned afronts people felt, especially after dark, especially if women, and especially if older. In no way could the City be accused of calling such a problem a homeless problem. There was no need to approach people in parking lots in order to support oneself. Vice Mayor Huber reserved commenting on the sitting and lying down ordinance until it returned to Council and was very interested in what the other supporting ordinances would be. His concern about any ordinance was how the unintended consequences situation would affect parades, etc. When the issue returned to Council, information should be provided which spoke to the issue of making the ordinance potentially an infraction rather than a misdemeanor because misdemeanor status for such activity was excessive. He was
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also interested in hearing what the HRC discussed as well. The other two ordinances were perfectly appropriate and were supported. Mr. Calonne said if Council intended to ask for follow up on the sitting and lying down ordinance, all of it should be folded into the motion for direction to staff. Council Member Schneider asked whether the City allowed solicitation of individuals in moving vehicles not within the boundaries of a parking lot. Mr. Calonne replied yes, but the proposed ordinance had not attempted to regulate such solicitations. Council Member Schneider asked whether the City currently had any regulations for such solicitations. Mr. Calonne replied no. Council Member Schneider was interested in pursuing the aspect of solicitations of individuals in vehicles. Mr. Calonne said the original draft had contained wording concerning solicitation of vehicles, but he understood there was no evidence of such occurrences within Palo Alto. Staff had wanted to stay in synch with what the PAPD had observed. Council Member Schneider said if the issue became a problem, it should be revisited. She assumed the open container ordinance applied to paper or plastic cups containing alcohol. Mr. Calonne replied no. The City was faced with state pre-emption. State law provided authorization to the City by ordinance to address package sale, so the ordinance would not apply to a person walking out of a bar with a cup of beer. Council Member Schneider thought there were ordinance preventing open containers of alcohol such as plastic cups. Mr. Calonne said the distinction generally was between consumption and open containers. There were many restriction on consumption in public places. Open containers were fewer. Council Member Andersen asked whether an owner of a private parking lot who wanted to be included in the parking lot solicitation ordinance could post a notice under the same ordinance. Mr. Calonne was unsure. Council Member Andersen asked Mr. Calonne to seek an answer to the question since there were probably businesses which would want such an opportunity afforded them.
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FIRST PART OF THE MOTION regarding the introduction of the Ordinances relating to alcoholic beverages and the distribution of handbills, advertising and samples on public and private properties and enacting the new Chapter 9.44 regarding prohibiting solicitation of employment, business, or contributions within public parking lots. FIRST PART OF THE MOTION PASSED 9-0. Council Member McCown asked for a copy of the Berkeley ordinance referenced in the opinion regarding the proposed sitting and lying down ordinance. Council Member Kniss clarified the motion on the sitting and lying down was merely to ask the City Attorney to return with further information, not a first reading. Mayor Wheeler said that was correct. Council Member Fazzino supported the ordinance but said it was very important for the City Attorney to be given the necessary time to craft as solid an ordinance as possible. More time would be necessary to incorporate the provisions with respect to parade and street musician permits. The City Attorney could then return with the sitting and lying down ordinance as well as the other issues. Mr. Calonne said with the street performers, a number of policy options would be outlined for Council. While there might be policy options, the assignment would be more extensive. Council Member Kniss would hold further comments until the item returned to Council but was very supportive of the proposed ordinance. The issue had been a struggle for nearly two years. The more successful Palo Alto became, the more difficult the problem became. The core was actually not very complicated and only a very small group of people were actually involved. Support was expressed for the direction in which the City was headed. Vice Mayor Huber said irrespective of what occurred with the ordinance, it should be an infraction and not a misdemeanor. SECOND PART OF THE MOTION regarding directing the City Attorney to return with the Ordinance regarding the prohibition of sitting or lying down upon the public sidewalk in the form of Version B, and a revised ordinance regulating performers and temporary street closings. MAKER AND SECONDER AGREED TO INCORPORATE INTO THE SECOND PART OF THE MOTION that the City Attorney and staff explore and respond to the City Council regarding the violation of the Ordinance as an infraction rather than a misdemeanor, reviewing the public street
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vehicular solicitation issue, documented hazards relating to tripping, analysis of the Seattle/Berkeley ordinances regarding general obstruction, and the appropriate findings. Mr. Calonne said as to Council's comments, affirmative direction was necessary, since the direction was not insignificant as to time. If Council wanted the PAPD to return with additional evidence on sidewalk tripping, specific direction should be given. Adding private parking lots was a significant research assignment. Council Member Fazzino thought the issue of private parking lots was a trespassing issue. Mr. Calonne said the area was not one by which meaningful speculation could be provided. Council Member Fazzino suggested holding off on the private parking lot issue. Council Member Andersen was concerned if solicitation were moved from the public lots, the solicitors would simply move into the private lots. Council Member Fazzino disagreed, unless the issue became a problem. Council Member McCown had not wanted a more extensive study regarding data; however, there were no reports of tripping found in the report. If the PAPD had no information, Council should be told there was no information. The assignment was not a research assignment, but a desire to confirm factually what the City was dealing with. Council Member Fazzino did not feel that much time would be needed. In a private conversation with Chief Durkin, factual information had been given beyond what had been provided. Council Member Simitian asked in connection with the information Council Member McCown had requested of Chief Durkin, the City Attorney comment on a parallel track about what the City did or did not need in the way of data for findings. Part of the question Council Member McCown was asking was what the City knew; he wanted to know what the City needed to know before it could appropriately take action. Mr. Calonne said the current record was adequate if Council agreed with the findings in the ordinance. SECOND PART OF THE MOTION PASSED 7-2, Andersen, McCown "no." ADJOURNMENT: The meeting adjourned at 11:42 p.m.
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ATTEST: APPROVED:
City Clerk Mayor NOTE: Sense minutes (synopsis) are prepared in accordance with Palo Alto Municipal Code Sections 2.04.200 (a) and (b). The City Council and Standing Committee meeting tapes are made solely for the purpose of facilitating the preparation of the minutes of the meetings. City Council and Standing Committee meeting tapes are recycled 90 days from the date of the meeting. The tapes are available for members of the public to listen to during regular office hours.
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