The meeting was called to order by Mayor Jones at 7:03 p.m.

The Pledge of Allegiance was given.

The Minutes of the June 28, 2004 Board of Aldermen meeting and Finance & Administration Committee meeting were submitted for approval.  A motion was made by Alderman Lembke and seconded by Alderman Fleming to approve the Minutes.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.

None.

Mike Probst, owner of French Quarter, 14766 Manchester Road:  Mr. Probst spoke in opposition to the proposed legislation.  He said his family-owned business has been in Ballwin for 44 years and that 60% - 80% of his customers smoke.  Customers’ choices make or break a business.  He said that 95% of his customers come from within a 5-mile radius.  In the 5-mile radius, there are over 50 bars and restaurants where they can smoke.  If only one in five of the smoking customers and their friends decide to go elsewhere, that’s 15% of his bar profits and his business.  He said the Board of Aldermen is asking him to take a significant business risk for little gain. 

Debbie Geyer, Speech Pathologist, Chesterfield, Mo.:  Ms. Geyer spoke in support of the proposed legislation.  She said that smoking is a danger and a public health issue.  She is limited where she and her patients can go because of the smoking and secondhand smoke.  She said secondhand smoke has 69 proven carcinogens, 4,000 chemicals that are very dangerous to ingest.  Fewer than 20% of the restaurants in Missouri are smoke free, most are fast food restaurants.  The statistics say that 74% of Missourians are non-smokers.  She said that 2 hours in a smoking environment as a worker is the same as ingesting 4 cigarettes in 2 hours as a non-smoker.  In an 8 hour shift, non-smokers are ingesting 16 cigarettes or ¾ of a pack.  For those who can give up smoking for 2 hours in a movie theater, they can give up smoking in a restaurant.

David Miller, St. Peters, Mo.:  Mr. Miller supports the proposed legislation.  He said that he and his family and friends only dine at smoke-free restaurants.  When Ballwin passes a smoke-free ordinance, he will dine at all of the restaurants in Ballwin.  He doesn’t want harmful chemicals around the food that he eats.  If restaurant owners are counting on smokers to make their business a success, they should take a look at their menu.  Non-smoking may increase business rather than lose business.  He said he is allergic to smoke.  He went to a TGI Friday’s restaurant in California.  He told the waitress that this is the only TGI Friday’s restaurant where there is no smoking.  The ones in St. Louis are too smoky.  The waitress said, “Do you mean they still allow smoking in restaurants?”  She couldn’t believe this was still allowed.  An article in the “St. Joseph News Press” said that since the smoking ban was passed in their area, business has risen 9.5%. 

Rick Dolgin, 1411 Shady Creek, Co-owner of Frick’s Bar & Grill:  Mr. Dolgin is opposed to the proposed legislation.  He said if non-smoking is going to become law, it should be done over the entire county or state.  He cannot afford to lose any portion of his business.  If he loses 5% of his customers, he may have to close the business.  He is concerned about his employees because they count on the business for their livelihood.  He has invested over $10,000 in non-smoking equipment to improve the air quality in Frick’s.  This smoking legislation, if passed, will be detrimental to his business, employees, guests, and the City of Ballwin.

Edward Roach, 802 Forest Village Drive:  Mr. Roach said that Arnold’s new non-smoking legislation will go into effect in November.  He advised waiting for one year until the Arnold experiment reveals its results.  He also suggested that this issue should be on the ballot for Ballwin residents to vote on this issue. 

Laura Hackensmith, 428 Redwood Forest Drive, Manchester, Mo., employee at Frick’s Bar & Grill:  Ms. Hackensmith spoke in opposition to the legislation.  She has been employed at Frick’s for over 5 years.  She said that if this issue is passed in Ballwin, it will affect the small business owner more than anyone else.  Small business in Ballwin cannot continue in operation if this legislation becomes law.  She showed the Board artwork that has been done by children coming to Frick’s with their families.  She said this proves that this is a good atmosphere for parents to bring their children. 

Mark Mitchell, 2414 Rustic Ridge, 63114:  Mr. Mitchell supports the proposed legislation.  He said that no one should have the legal ability to force their harmful habit on someone else.  An employee should not be subjected to someone’s airborne habit and become more susceptible to numerous diseases.  An employee who has never smoked would now be 34% more likely to get lung cancer.  California and New York have taken a stand against this issue.  Speeding laws are used to protect people.  If there is a smoking section indoors, then smoking and involuntary smoking exists. 

Brittany Geyer, 730 Stone Meadow Drive, Chesterfield:  Ms. Geyer supports the proposed legislation.  She said several of her friends work at restaurants in Ballwin.  Everyday they are subjected to secondhand smoke.  In school, she was taught to not start smoking because it was dangerous to her health.  She would go to restaurants and smoking was permitted.  This was contrary to her teaching.  She said secondhand smoke is dangerous.  If this legislation is passed, others may follow Ballwin’s example.

Gordon Amousky, National Council of Alcohol and Drug Abuse, 8790 Manchester, Mo. 63144:  Mr. Amousky spoke in support of the legislation.  He said the mission of his agency is to implement, promote, and execute strategies that insure safe and healthy communities that are free of the harmful effects of alcohol, tobacco and other drug use.  Secondhand smoke is a cardiac poison and addictive.  He said in New York, the business tax receipts increased one year after the smoking ban.  In Maryville, the business tax receipts increased 10%.  This is more of a business benefit than a business loss.  Tobacco use is not a right – it’s a choice.  Clean healthy indoor air is a right. 

Darryl Dunn, 135 Asilomar:  Mr. Dunn is opposed to the proposed legislation.  He said if he cannot smoke in a restaurant in the City of Ballwin, he will spend his cash somewhere else.  If the public is demanding smoke-free restaurants, why aren’t the restaurant owners voluntarily enforcing a smoking ban in their facilities.

Dave Cooneman, 1015 O’day, Rock Hill:  Mr. Cooneman spoke in opposition to the proposed legislation.  He said he is a retired pharmaceutical chemist.  He said he researched how much bar and restaurant revenues were by various states from 1990 – 1998.  He found that the states that banned smoking did very poorly.  He provided the Board with copies of the research and government data.  The Library of Congress concluded that the claims about the effects of secondhand smoke are outrageous.  There is no reason why the small amounts of smoke that non-smokers breathe have any negative health effects at all.  He said most Americans support allowing smoking in public places. 

Natalie Davenport, 235 Leslie Lane:  Ms. Davenport supports the proposed legislation.  She and her family only go to restaurants where no smoking is enforced.  Most of the time, they go to restaurants outside of Ballwin.  She said if the Board passes this legislation, she and her family will patronize Ballwin restaurants.

Doug Teeberg, owner of Buffalo Wild Wings, 15240 Manchester Road:  Mr. Teeberg spoke in opposition to the proposed legislation.  He said there is no smoking in his restaurant, but it is allowed in the bar area.  Smoke eating machines and a high quality ventilation system have been installed to prevent the smoke from entering the restaurant as much as possible.  His business would decline if the smoking ban is passed.  Instead of a ban, he suggested better ventilation systems, smoke eaters, and designated smoking areas.  He said this has been successful at Buffalo Wild Wings.  Non-smoking areas in restaurants are an absolute necessity.  Non-smoking laws send business elsewhere and hurt Ballwin residents.

Jim Sego, Turn of the Century Tobacco Project, Godfrey, Illinois:  Mr. Sego spoke in favor of the proposed legislation.  He said that not everyone who would like to go to a restaurant that allows smoking can go because they have health issues that cannot be exposed to secondhand smoke.  His sister-in-law had a kidney transplant two weeks ago.  To avoid infection, one of the main points her doctor made to her was to avoid secondhand smoke.  This is a serious health issue. 

Walt Young, 634 Lemonwood Drive:  Mr. Young spoke in support of the proposed legislation.  He said that passing this legislation supports the Police Department with the D.A.R.E. program.  Students are told one thing and then the opposite is done in the restaurants.  Things have changed.  A few years ago, the person sitting in front of you on an airplane was smoking.  There are other cities that are thinking about this and are waiting for Ballwin or another city to pass this legislation.  St. Louis County is also considering this legislation.  He said that nine years ago when he was an alderman, this same issue was briefly discussed.  At that time there were five smokers on the Board and they didn’t want to talk about it.  He said that previously the restaurant owners were surveyed and over 70% of the owners wanted to do this but were afraid to tackle it themselves.  There are restaurants in Chesterfield Valley that have stated that they are full non-smoking restaurants and are doing remarkably well.  He said he is concerned about the small business owner.  He suggested that this legislation be passed and suggest to the County Council to pass this legislation as well. 

Theresa Norstrom, 110 Coral Terrace, employee of French Quarter Bar & Grill:  Ms. Norstrom spoke in opposition to the legislation.  She has been an employee at the French Quarter for 9 years.  She said this job is her livelihood and she needs this job so that she can make a living and continue to live in the City of Ballwin.  The smoke eaters do a good job of clearing the air.  She said it should be everyone’s right as a citizen to dine in the restaurant of their choice.

Joe Hipskin, Muir View Drive, Ballwin:  Mr. Hipskin supports the proposed legislation.  He said there should be a balance between economics and public health.  There are two sides to this issue.  There is an overwhelming number of studies that clearly indicate that secondhand smoke is a significant problem.  He suggested that smokers go outside to smoke and come back into the restaurant to enjoy their family and friends.

Fred Schoenborn, 125 Log Trail Drive, Ballwin:  Mr. Schoenborn is against the proposed legislation.  He said that smoke isn’t the issue it used to be because of better ventilation, etc.  He said it is medically impossible to be allergic to cigarette smoke. 

Dan Sodotti, 500 Wellshire Ct., Ballwin:  Mr. Sodotti is against the proposed legislation.  He said he never has smoked but he is a strong advocate of freedom.  He said our freedom is being eroded little by little, day by day, and this is another example of erosion of freedom.  Twenty-five feet from any establishment is too far and is imposing on people’s freedom.

Mary Caulfield, 479 Maymont Drive, Ballwin:  Ms. Caulfield spoke against the proposed legislation.  She said this is a Ballwin meeting and asked why so many of the people speaking to the Board are not residents of Ballwin.  They do not have the needs of this community at heart.  She said that passing this legislation is infringing on citizens’ rights.  This issue should be voted upon by the residents.

Craig Whittenberg, 575 Goldwood Drive, Ballwin:  Mr. Whittenberg spoke in opposition to the proposed legislation.  He said this is not about smoke.  It’s about the Board taking from Ballwin citizens what belongs to them.  He said if he cannot smoke in Frick’s, he will go to Manchester or Ellisville.  He won’t patronize Ballwin restaurants.

Gary Lubers, 1890 Edgemont, Arnold, Mo.:  Mr. Lubers opposes the proposed legislation.  He said that Arnold restaurants are already seeing a reduction in business because people think that the ban has already become effective.  He said the EPA report is not valid.  He provided the Board with reports showing the federal court ruling that ruled the EPA report null and void.  He provided a list of numerous businesses across the country that have gone out of business because of smoking bans.  He praised the Ballwin Board of Aldermen for thoroughly considering this legislation before passing it.  He is currently in charge of an initiative petition against the City of Arnold to take the issue to a vote of the people.  He suggested the Board examine this issue more before voting on it.

Jeff Branset, 324 Woodmar Ct., Ballwin:  Mr. Branset supports the legislation.  He is a retired police officer and has taught D.A.R.E. for the past seven years.   He owned a non-smoking restaurant in West County for three years.  He didn’t lose any business because of that.  People who wanted to smoke went outside.  No one ever complained.  He encouraged the Board to strive for a healthy community.

Frank Nieman, Co-owner of Frick’s Bar and Grill:  Mr. Nieman opposes the legislation.  He said there will be a loss of business if this legislation is passed.  Ballwin is too small to do this.  It will hurt Ballwin restaurants.  He said if this legislation is passed, the impact on Frick’s would be devastating.  He would lose approximately 30% of the smoking business.  This would be a loss of $30,000 - $40,000 and 35 employees would be without jobs.  He didn’t receive a phone call that this legislation was coming up again.  He became aware of it from the newspaper. 

BILL # 3305 - AN ORDINANCE AMENDING CHAPTER 1, SECTION 1-2 ENTITLED “DEFINITIONS” BY THE ADDITION OF CERTAIN DEFINITIONS FOR REGULATION OF SMOKING IN PUBLIC AND WORK PLACES, AND BY THE ADDITION IN CHAPTER 17, A NEW SECTION 17-65 ENTITLED “BALLWIN CLEAN INDOOR AIR ACT.”

A motion was made by Alderman Lembke and seconded by Alderman Gatton for a first reading of Bill No. 3305.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3305 was read for the first time.

Alderman Gatton said the reasons this legislation is being considered are entirely related to health issues.  Information from several websites that are related to this issues state the following:  Ê The U.S. Environmental Protection Agency says that secondhand smoke can cause lung cancer in non-smokers.  Secondhand smoke has been classified as a known cause of lung cancer in humans.  It is a group A carcinogen.  Passive smoking is estimated by EPA to cause approximately 3,000 lung cancer deaths in non-smokers each year.  Ë The National Institute for Occupational Safety and Health has determined that secondhand smoke may cause lung cancer in exposed workers.  On the job exposure to secondhand smoke can be four times higher than in the home.  Secondhand smoke can irritate eyes, nose and throat.  Some workers are already exposed to substances that can cause lung disease.  Secondhand smoke in the work place can only increase the danger.  To protect non-smokers from secondhand smoke, the work place must be totally smoke free or smoking must be limited to a separate enclosed area with its own ventilation system.  Ì The National Cancer Institute says that when a cigarette is smoked, about half of the smoke generated is sidestream smoke, which contains essentially the same compounds as those identified in the mainstream smoke inhaled by the smoker.  Some of the chemicals in environmental tobacco smoke include substances that irritate the lining of the lung and other tissues, carcinogens, mutagens and developmental toxicants, which are substances that interfere with normal cell development.  Tobacco smoke is known to contain at least 60 carcinogens including formaldehyde and benzopirine, and six developmental toxicants including nicotine and carbon monoxide.  Non-smokers who are exposed to environmental tobacco smoke absorb nicotine and other compounds just as smokers do.  As the exposure increases, the levels of these harmful substances in the body increase as well.  Although the smoke to which a non-smoker is exposed is less concentrated than that which is inhaled by smokers, research has demonstrated significant health risks associated with environmental tobacco smoke.  Í  The American Lung Association says that secondhand smoke is especially harmful to young children.  The EPA estimates that secondhand smoke is responsible for between 150,000 and 300,000 lower respiratory track infections in infants and children under 18 month of age annually, resulting in between 7,500 and 15,000 hospitalizations each year.  Secondhand smoke is harmful to children with asthma.  The EPA estimates that for between 200,000 and 1,000,000 asthmatic children, exposure to secondhand smoke worsens their condition.  Î The Phillip Morris Company says that public health officials have concluded that secondhand smoke from cigarettes causes disease, including lung cancer and heart disease, in non-smoking adults, as well as causes conditions in children, including asthma, respiratory infections, cough, middle ear infections and sudden infant death syndrome.  In addition, public health officials have concluded that secondhand smoke can exacerbate adult asthma and cause eye, throat, and nasal irritation. 

Alderman Gatton said that these are the reasons why this ordinance is being recommended for debate, discussion, and potentially a vote.  It is entirely for public health reasons.  This is not anti tobacco or anti smoker.  This is for the health of our children and the people who work in the businesses in Ballwin.

Alderman McDowell said he agrees with Alderman Gatton on this issue.  He thanked Alderman Gatton for bringing this legislation to the Board for consideration.  He said that smoking is a freedom, but the consequences are dangerous and sometimes deadly.  The Board of Aldermen always tries to balance rights.  In this case, one of the rights is protecting non-smokers from the harm of secondhand smoke.  The balancing right is the right of the smoker to enjoy tobacco products in public places.  The citizens should be protected and the Board should take that step with this legislation.  The Board should take the leadership and make the restaurants in Ballwin smoke free. 

Alderman Lembke said he was taught as a child in civics class that we have certain rights in this country.  He said he, his family, children and grandchildren have a right to breathe fresh air, to go into a restaurant or public facility and be able to breathe fresh air without someone else contaminating it.  He said he doesn’t want his meal ruined by cigarette smoke.  He demonstrated by using a spray can, saying that if he took a can containing the 4,000 chemicals and 69 carcinogens that are in cigarette smoke, and sprayed it in the air because he wanted to enhance his dining pleasure, he would be arrested and charged with criminal charges for polluting the air and endangering other people.  He said the Board should move forward with this legislation.

Alderman Buermann said that the way this legislation is written is very restrictive and the fines are astronomical.  People are fighting for freedom around the world, and many people have given their lives for freedom.  These freedoms include the right to choose.  This issue should be brought to the people for a vote.  He said that because eight people on this Board may be making a decision for the city and for the livelihood of the businesses and employees, he would like to see this legislation revised with less restrictions and to be discussed further.  He said that enforcement is an issue – how will this law be enforced.

Alderman Lembke asked what will change that will allow the Board to have the open discussion that Alderman Buermann is looking for.  Alderman Buermann said that if this is a public health issue, it should be discussed in the Public Health & Safety Committee, although the committee approach did not work the last time this was discussed in committee.  He said he is in favor of putting it on the ballot and letting the citizens vote on this.  It could be put on the April ballot without additional cost to the city.  He said he feels uncomfortable with this legislation as it is written. 

Alderman Lembke said that Alderman Buermann wants to put this off and have another meeting.  He said he doesn’t understand why.  Alderman Buermann said his first preference is for the citizens of Ballwin to vote on this issue. 

Alderman Fleming said that some of the business owners have taken steps to alleviate smoke.  He asked if it is possible to make a restaurant safe for people who are in the vicinity of secondhand smoke.  Alderman Gatton said that existing technology does not remove all of the elements of smoke from the air.  No equipment manufacturer will say or certify that it does.  It removes the particulate matter from cigarette smoke.  Even if there was an enclosed room set aside for smokers, there is still the matter of employees that are forced to work in the environment.  If they are non-smokers, they are subject to a high level of smoke.  If they are smokers, they are doubling their exposure.  Alderman Gatton said that at Lambert Airport, there are designated smoking rooms.  It’s obvious what the room is used for if someone gets only near the room.  He said it’s not a pleasant environment even though there are smoke eaters in the rooms and someone still has to work in that enclosed room. 

Alderman McDowell said he feels comfortable with this legislation.  He has a right to fresh air.  He said that businesses that are claiming that they will lose customers are not seeing the full picture of the customers that will come because there is cleaner air and a non-smoking environment.  It will become more of a family atmosphere.  He said this eight-member Board makes decisions all the time that affect the entire city.  This is a tough decision but the Board should make the right decision even if it is not the most popular decision. 

Mayor Jones said that he is concerned about the waiver provision.  The enforcement officer is put in a difficult position.  A restriction should be suitable for enforcement. 

Alderman Lembke said he would like to make a “friendly amendment” if Alderman Gatton will accept it to change Chapter 17, Section 17-64, section I, Waiver.  He asked that the entire section be removed from the proposed bill on page 5 of 6.  Alderman Gatton accepted. 

Mayor Jones said he is also concerned about Section A, Item 17, sports arenas, outdoor arenas, spaces and concourses regarding enforcement.  Alderman Pogue said that he spoke with someone on the Board of the Ballwin Athletic Association and the BAA is already a non-smoking area.  This would be one of the major areas that could influence this section.  Mayor Jones said that the BAA does not enforce its no smoking regulation at this time.  This would be difficult to do.  This is primarily regarding indoor air quality.

City Attorney Lucchesi said that he has not had time to review the suggested amendments that Alderman Lembke distributed at the start of this meeting.  The amendments and bill should be reviewed before voting takes place.  Alderman Suozzi said that she does not feel comfortable voting at this time because of all of the information that has been presented at this meeting and because of the uncertainty of enforcement under the present bill language.

Alderman Buermann asked about public education on page 6 if this is the D.A.R.E. program or another program.  Alderman Gatton said that the program may include publication of a brochure for effective businesses and individuals explaining the provisions of this ordinance.  This would be a program that would explain to impacted businesses what the ordinance says and what their compliance is to be.  Alderman Buermann said he would like to review Alderman Lembke’s suggestions.  He said the fine is steep and he is concerned about the enforcement of 25 feet from the entrance.  How will a police officer determine this?  Alderman Robinson said someone would have to call the police to report this. 

Alderman McDowell said that the friendly amendments offered by Alderman Lembke are not part of the legislation at this time.  The amendments should be considered separately.  It would be up to Alderman Gatton if he is willing to accept the friendly amendments.  He said the proposed legislation should not be tabled because the friendly amendments have been offered.  It is Alderman Lembke’s burden to justify or convince the Board why the amendments should be adopted as part of the bill.  Mayor Jones said if someone makes a motion for a second reading of the bill and it receives a majority, a vote will be taken.  If there isn’t a second reading, it will be carried over to the August 23 Board meeting. 

Alderman Lembke proceeded to introduce the friendly amendments. 

Page 3 of 6 of the proposed legislation, Section B: Prohibition of Smoking in Places of Employment, Paragraph 1: …., company owned and leased vehicles, …Substitute:  “company owned or leased vehicles used to transport multiple employees,…”   Many citizens have provided to them company owned or leased vehicles used mainly for business, but are available to them for use almost as a privately owned vehicle.  Smoking would not be allowed in a car pool vehicle.  Alderman Gatton accepted this amendment.

Page 3 of 6, Section D:  Where Smoking is Not Restricted, Sub Paragraph 1:  Substitute the words:  “smoking shall be prohibited in private homes, private residences and private vehicles and this ordinance shall apply” for the words “it shall only apply”.  Alderman Lembke asked for the word “automobiles” to be changed to “vehicles”.  Alderman Gatton accepted this amendment.

Page 3 of 6, Section D:  Where Smoking is Not Restricted, Sub Paragraph 2 now reads:  “Retail tobacco businesses, provided that smoke from these businesses does not infiltrate into areas where smoking is prohibited under the provisions of this Article.”  And Page 4 of 6 Sub Paragraph 5, now reads, “Cigar bars in operation….”  Alderman Lembke said that Ballwin currently does not have cigar bars or retail businesses whose main business is to sell and allow smoking on the premises, therefore, he requested that these two paragraphs be stricken in their entirety.

Alderman Suozzi said there is a discount cigarette shop in the Value City parking lot.  City Attorney Lucchesi said that if it’s not allowed, it is prohibited.  If someone wants to open this type of business, it would be prohibited.  If these paragraphs are taken out, another amendment to the ordinance would have to be proposed.  Alderman McDowell said it is not uncommon for an ordinance to address business that does not reside in the city at the present time.  He is opposed to this amendment.  If there is no prohibition in the ordinance, the business has a right to exist. 

Alderman Gatton said he would like to keep both of these paragraphs in the ordinance

Page 5 of 6, Section H:  Enforcement:  Substitute the words “a complaint by” for the word “one”.  Thus it would read:  “3.  Any citizen who desires to register a complaint under this ordinance may initiate a complaint by written notice to the enforcement officer.”  Alderman Gatton accepted this amendment.

Alderman McDowell said according to this amendment, if he is in an establishment and complains about secondhand smoke, he must put it in writing to an enforcement officer.  Simply notifying the enforcement officer of the complaint will not suffice.  He said this makes the citizens go through an additional process to register their complaint.  City Attorney Lucchesi said the reason for a written or signed document is that what will prevent a competitor from inundating city hall with voice mails to report violations.  This can be e-mail written notification.  Strictly verbal complaints could produce a substantial number of problems that are not yet considered.  He said the citizen doesn’t have to write it out.  The city can have a form that the citizen signs and identifies the business.  A form that becomes part of the record is advisable rather than an anonymous voice mail that says that such a business is violating this on a continuing basis. 

Alderman Gatton said he didn’t mean for the only notification to be a written notification.  A complaint could be made to a police officer or police department, as well as to city hall.  A business would not be fined based on a phone call.  To go to court, it would have to be observed by a police officer.  Mayor Jones said that a complaining witness signs a complaint.  The police department should continue to do this.  Alderman McDowell and Alderman Gatton agreed.

Alderman Robinson said he is concerned about the enforcement provision.  He asked, if someone continues to smoke after being told by the restaurant owner that this is prohibited, does the owner have an obligation to call the police?  If the owner fails to call the police, is he in violation of Section J?  If a complaining customer calls the police but fails to make a written notice, and when the police arrive, the smoking customer is no longer smoking, how does the officer proceed?  He said if there isn’t a reliable way to enforce the ordinance, the ordinance means nothing.  The violation should focus on the smoker not on the restaurant owner. 

Alderman Gatton said it was not his intent to focus on the owner or manager of the business.  He said he is concerned, however, about the owner or manager that intentionally ignores the ordinance.  Alderman Buermann suggested a limited number of complaints, after which the owner or manager could be fined.  Alderman McDowell said these violations would be no different than violating any other ordinance in Ballwin. 

Alderman Robinson said he would like to have more time to consider the enforcement provision.  He said he does not want to vote without taking the time to read the additional information that has been provided.  The businesses on the list from other communities that have closed should be contacted to determine if they have gone out of business because of the smoking ban.  The Board should vote with this knowledge.  He asked that there not be a second reading of the proposed legislation at this meeting.  He proposed that the bill be held until the August 23 Board of Aldermen meeting.  Alderman Gatton agreed.

Alderman Buermann asked for an explanation of place of employment.  He asked about a car dealership and if the parking lot would be a non-smoking area.  Alderman Gatton said place of employment is an enclosed area.  This would not apply to a car dealership parking lot. 

Alderman Gatton explained the reason for the 25-foot restriction at the entrance to a building.  He said that it has been his experience that one must go through a wall of smoke to go into some buildings because employees are standing outside the building and smoking.  This situation at a restaurant could be undesirable for customers that have medical conditions.  He said he is willing to reconsider the 25-foot requirement because this is not in the state law. 

Alderman McDowell said that Alderman Robinson has not made a convincing case to postpone a second reading of the proposed legislation.  He said the owner is obligated to instruct the patrons of the rules and regulations and if they do not comply, the owner will be instructed to call a police officer to remove the patron from that location.  A fine would apply if an owner disregards the ordinance and allows the patron to smoke without notifying them of the rule. 

Alderman Buermann said to Alderman McDowell that at least 3 of the Board members would like to delay the vote and Alderman Gatton has agreed to this.  He said he does not want to rush the vote and perhaps miss something in the legislation.  It would be better to carefully review the legislation than to rehash it through amendments.  He agreed with Alderman Robinson and Alderman Suozzi to postpone a second reading. 

Alderman Lembke agreed that enforcement should be strengthened to make sure that if this passes, the owner/operators have shared responsibility that is clearly defined and accountable. 

A motion was made by Alderman Robinson and seconded by Alderman Buermann to table Bill 3305 until the August 23 Board meeting.  A voice vote was taken with 6 yes votes and 2 no votes, Alderman McDowell and Alderman Fleming voted no.  The motion was declared passed.  Bill 3305 will be tabled and appear on the Agenda for August 23.

BILL # 3306 - AN ORDINANCE AUTHORIZING A CONTRACT WITH THE CITY OF CLARKSON VALLEY, MISSOURI, FOR RENDITION OF POLICE SERVICES AND AUTHORIZING AND DIRECTING THE MAYOR AND THE CITY CLERK TO EXECUTE SAME ON BEHALF OF THE CITY OF BALLWIN.

A motion was made by Alderman Lembke and seconded by Alderman Buermann for a first reading of Bill No. 3306.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3306 was read for the first time.

A motion was made by Alderman Gatton and seconded by Alderman Buermann for a second reading of Bill No. 3306.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3306 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3306 with the following results:  Ayes – Gatton, McDowell, Robinson, Pogue, Lembke, Fleming, Suozzi, Buermann.    Nays – None.  Whereupon Mayor Jones declared Bill No. 3306 approved and it became Ordinance No. 04-30.

BILL # 3307 - AN ORDINANCE APPROVING THE USE OF EMINENT DOMAIN FOR THE MANCHESTER ROAD SIDEWALK PROJECT.

A motion was made by Alderman Robinson and seconded by Alderman Fleming for a first reading of Bill No. 3307.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3307 was read for the first time.

A motion was made by Alderman Lembke and seconded by Alderman Suozzi for a second reading of Bill No. 3307.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3307 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3307 with the following results:  Ayes – Lembke, Fleming, Pogue, Robinson, McDowell, Suozzi, Gatton.   Nays – Buermann.  Whereupon Mayor Jones declared Bill No. 3307 approved and it became Ordinance No. 04-31.

A motion was made by Alderman McDowell and seconded by Alderman Lembke to adopt the consent items.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.

Mayor Jones said a Planning & Zoning Commissioner from Ward 2 still needs to be appointed.  Alderman Suozzi said that she and Alderman Buermann are still working on this.

Property Dispute:  Assistant City Administrator Aiken said that as part of the Vlasis Park renovation, Ballwin constructed a parking lot adjacent to Seven Trails Drive.  Due to incorrect information on the location of the property lines, a portion of the parking lot was built on property owned by Seven Trails Apartment complex.  In correspondence with Mr. Baumann, Manager of Seven Trails Apartments, he would like to give the property in question to the City of Ballwin in exchange for being able to move his signs to a location closer to Manchester Road at the intersection of Seven Trails Drive, and in violation of the minimum setback for signage at the entrance to Seven Trails Drive at Holloway Road.  Assistant City Administrator Aiken said the disputed land is a strip of ground between the edge of the Seven Trails Drive roadway extending back into the parking lot.  This land has been considered part of the park for at least 25 years. 

Alderman Lembke asked if the City has aggressively maintained this area.  Mr. Aiken said the city has maintained it for at least 25 years.  Alderman Suozzi said she has concerns about Mr. Baumann’s proposal because she is wary of setting a precedent by allowing off premises signage advertising a business.  Kensington West or any apartment complex would desire that type of advertisement.  Alderman McDowell said the signs are already in violation of the City ordinance.  The Board cannot approve the exchange of property for violation of the ordinance.

City Attorney Lucchesi said that there is an issue of adverse possession, but there needs to be a court order.  If they want to sue Ballwin, then Ballwin would counter claim for ownership by adverse possession.  He recommended that at this point in time the Board should do nothing unless they are prepared to do a formal swap.  He said it would not be wise to spend money to be pro-active in this case.  Alderman Lembke asked if staff can be granted the power to enter into adverse possession.  City Attorney Lucchesi said Mr. Baumann would have to sue Ballwin to get Ballwin off the property.  It’s better for Ballwin to act only as a counter claim. 

Mayor Jones agreed and said that this is the same party that Ballwin granted additional right-of-way to build a sign which is still out of compliance at Seven Trails where it intersects Holloway.  Alderman Lembke said that he would be comfortable using eminent domain.  City Attorney Lucchesi said that eminent domain could possibly not be used in this situation. 

Alderman McDowell said he is cautious of discussing legal strategy openly.  He suggested that as the situation progresses, City Attorney Lucchesi could take necessary action.  The Board cannot accept the proposal that Mr. Baumann has made at this time.  Alderman Gatton agreed.  This issue has been previously discussed and the request was denied at that time.  If Mr. Baumann wants to pursue legal action, the ball is in his court.

Alderman Buermann asked when the parking lot was constructed was a survey done.  Director of Parks and Recreation Bruer said a survey was conducted. 

Mayor Jones said that in summary the Board has agreed not to take action at this time, other than to notify Mr. Baumann that his proposal has been rejected.

Pointe Improvements:  Assistant City Administrator Aiken said that at The Pointe, the carpeting needs to be replaced.  Because of a limited time frame that the work can be done, there has been difficulty in getting more than one bid on the work.  Also, the pool needs to be re-plastered and the slide painted.  Director of Parks and Recreation Bruer said that they will still be under budget after doing this work.  These were budgeted items, with the exception of painting the slide tower.  She said in her memo, unbudgeted Coke revenue was listed as an expense instead of a revenue.  This year the beverage contract was rebid and Coke was the best offer.  Revenue was not budgeted for the beverage contract this year because many other cities that rebid such contracts didn’t receive any marketing money.  Ballwin has received $25,000 for the first year and $6,000 for subsequent years. 

A motion was made by Alderman Buermann and seconded by Alderman Lembke to approve The Pointe improvements.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.

Fraud Policy:  Assistant City Administrator Aiken said this is as a result of discussions with the auditors and with other communities.  It is regarding appropriate measures, procedures, and policies as it relates to securities and cash handling.  Finance Officer Loehr said these issues have been addressed in the Personnel Manual but the auditors want a separate Fraud Policy.  Mayor Jones said that none of this is objectionable and is a standard that everyone should be held to.  Alderman Robinson asked City Attorney Lucchesi if he has had a chance to review the proposed Fraud Policy.  City Attorney Lucchesi said he has not. 

A motion was made by Alderman McDowell and seconded by Alderman Lembke to draft legislation consistent with the proposed Fraud Policy.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.

Ballwin Plaza Left Turns:  Assistant City Administrator Aiken said that MoDOT built the left turn limitation island at the entrance to Ballwin Plaza at the entrance by Schnucks.  They erected no left turn signs.  The Police Department recommended that an ordinance be prepared to add this location to the schedule. 

A motion was made by Alderman Suozzi and seconded by Alderman Buermann to draft legislation to add the Ballwin Plaza no left turn location to the schedule.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.

Boundary Commission:  Assistant City Administrator Aiken said he received a notice that the Public Hearing on the annexation has been scheduled by the Boundary Commission.  There were overlapping annexation proposals with the City of Ellisville for those subdivisions that are southwest of Kiefer Creek Road between Ridgeland Meadows and New Ballwin Road.  The Public Hearing for the Ellisville annexation proposal is scheduled for August 24, 2004, at 7:00 p.m. at Ridge Meadow School off of Old State Road, and the Public Hearing for Ballwin’s annexation is on August 31, 2004 at 7:00 p.m. at Woerther Elementary School.  This will be advertised in the newspaper and on Ballwin’s website. 

City Attorney Lucchesi said that mediation was conducted with respect to a possible EEOC complaint.  It was unsuccessful.  He doesn’t know what the result will be.  There will likely be a letter issued indicating the right to sue.  He will keep the Board informed.

Alderman Buermann asked about reapportionments for the budget.  Finance Officer Loehr said they are waiting to see if there are overruns on the Public Works project.  Assistant City Administrator Aiken said that traditionally, this has been done late in the year so that it only has to be done once, perhaps September or October. 

Alderman Buermann thanked Alderman Gatton for bringing up the non-smoking proposed legislation.  He said he appreciates the extra time being given to review the legislation.

A motion was made by Alderman Buermann and seconded by Alderman Gatton to adjourn.  The motion passed unanimously and the meeting was adjourned at 9:22 p.m.

MC