CITY OF RIVER FALLS: 6/26/12 COMMON COUNCIL PROCEEDINGS

June 26, 2012

Mayor Dan Toland called the meeting to order at 6:30 p.m. in the City Council Chambers located in City Hall.

City Council Members Present: Tom Caflisch, David Cronk, Christopher Gagne, Randy Kusilek, Scott Morrissette, Jim Nordgren, David Reese

City Council Members Absent: None

Staff Present: Scot Simpson, City Administrator; Bill Thiel, City Attorney; Catherine Munkittrick, City Attorney; Reid Wronski, Public Works Director/City Engineer; Lu Ann Hecht, City Clerk; Police Chief Roger Leque; Paul Fagin, Management Analyst; Buddy Lucero, Community Development Director; Adam DeKleyn, Planning Intern; Caitlin Steve, Management Analyst; Julie Bergstrom, Finance Director/Assistant City Administrator

Others Present: John and Danielle Peterson; Attorney Barry Lundeen; Kristan Kimmes

APPROVAL OF MINUTES:

June 12, 2012, Regular Meeting Minutes

MSC Morrissette/Gagne move to approve minutes as submitted. Unanimous.

APPROVAL OF BILLS:

City Bills - $1,516,194.87

MSC Cronk/Nordgren to approve bills subject to the comptroller. Unanimous.

PUBLIC EVIDENTIARY HEARING:

JP CORNER SALOON, LLC LIQUOR LICENSE

The Mayor introduced Attorney Catherine Munkittrick, who is representing the Common Council in this matter. Munkittrick explained this was a public evidentiary hearing which is open to the public but the public cannot participate. She said the hearing was on the renewal or non-renewal of the JP Corner Saloon, LLC “Class B” liquor and beer license. Munkittrick said a complaint has been filed by a River Falls Police Officer alleging facts that could provide grounds for non-renewal. The licensee is entitled to a hearing. She said it is a quasi-judicial hearing that each party can present witnesses and evidence to support of the allegations of the complaint or in defense of the allegations of the complaint. The Council will listen to the evidence presented, then convene into Closed Session, return to Open Session and then possibly render a decision. Munkittrick explained the procedures of the hearing and answered the Council’s questions.

Munkittrick asked for notices of appearance. Attorney Bill Thiel said he appeared on behalf of the complainants, Officer Denton Anderson of the River Falls Police Department. Attorney Barry Lundeen said he appeared on behalf of the owner, John Paul Peterson.

Munkittrick confirmed that the summons was served. Lundeen said an admission of service was sent to Mr. Thiel. Thiel received that and offered to submit it into the record. Opening remarks began.

Attorney Thiel said a complaint has been filed for consideration of non-renewal of a liquor license on the basis of a member of agent being a habitual offender. Attorney Lundeen said Mr. Peterson would not dispute the evidence but the attempt to non-renew is based upon two sections in the statute where the language doesn’t fit with the alleged offenses. He said in regard to the habitual law offender allegation, Mr. Peterson has been qualified to have a liquor license since 2003. Lundeen said all of the things on his record have been known about for some time. The new item is an alleged after hours violation in July 2011.

Thiel said he was going to call City Clerk Lu Ann Hecht to the stand but conferred with Attorney Lundeen before the hearing commenced, and he believes that Lundeen would stipulate that JP Corner Saloon is a LLC and did submit a renewal application and that John Paul Peterson is a member of the LLC and also its agent. Lundeen confirmed that was correct.

Thiel called Police Chief Roger Leque to the stand. Testimony was given regarding the citation history and report documentation. Thiel submitted to Leque Exhibits 2-6 for his review. After questioning Leque, Thiel moved for the admission of the exhibits.

Attorney Lundeen cross examined Chief Leque. Attorney Thiel asked follow up questions regarding the guidelines for issuing license renewals. Thiel asked Leque questions about the open after hours charge, confirmation of after hours sales, and the legal closing hours.

Attorney Lundeen said Peterson was not contesting the incidents and admitting to them but he asked about the sale of alcohol after hours.

Attorney Thiel had a follow up question. Thiel said he had no further witnesses.

Gagne clarified that he could only ask questions based upon what was presented. Munkittrick said yes. Munkittrick told Leque he could step down and asked for the Exhibits. Munkittrick asked Attorney Thiel if he had completed his presentation. Thiel said yes. Munkittrick asked Lundeen if he was finished. He said no; he had questions for Mr. Peterson.

Attorney Lundeen asked Peterson about his name, the license, and the building. Lundeen asked Peterson about the incidents. Peterson said he would do everything in his power to make sure nothing happened like that again. Lundeen had no further questions. Thiel did not have questions for Peterson. The Council had no questions for Peterson.

Gagne asked Peterson if there was recent fighting. Peterson said he was not aware of anything recently. Gagne asked again about a recent fight with an employee. Peterson said he didn’t know but then changed his mind. He didn’t know the details. Nordgren asked if the police were called. Peterson didn’t know the circumstances. Munkittrick asked if the police stopped and when it happened. Peterson said yes the police stopped, and it happened a week or two again.

With no further questions, Munkittrick told Peterson he could step down. She asked for brief closing statements. Thiel said they are recommending that Council should review this case if they believe Mr. Peterson is a habitual law offender. He acknowledged some incidents go back several years and Peterson’s license was renewed each year; however, the concept of habitual is a continual one. He indicated he had a written brief which addressed the Supreme Court’s opinion on the definition of a habitual offender.

Attorney Lundeen indicated his client has had a license since 2003. He said that most of the incidents are older and his licenses have been renewed. He asked what happened to make him a habitual offender. He said one incident has happened since the last renewal for which he took responsibility and paid a fine. Lundeen didn’t feel that made him a habitual offender. He referred to the case in Thiel’s written brief. He said in that case the tavern owner admitted under oath to using and selling drugs for a period of time out of the bar. He doesn’t feel the case law supports that Peterson is a habitual law offender. He asked Council to consider the severity of what is alleged and the drastic remedy it would be not to renewal his license.

With no other comments, Munkittrick provided clarification on Lundeen’s reading of the statute. She said the arrest or conviction record has to be substantially related to the licensed activity; it is not violations of those particular statutes. Also, she noted there has been some testimony on the guidelines. She would like the guidelines submitted for the record. Thiel said he would present one to her. She said that would be Exhibit 7.

Munkittrick reviewed the Exhibits.

Munkittrick said Council was ready to go into Closed Session pursuant to Wis. Stat. 19.85 (1)(a) to deliberate concerning the quasi-judicial evidentiary hearing before the Common Council regarding the Complaint in Support of Non-Renewal of the "Class B" Liquor and Beer License for JP Corner Saloon LLC, 126 & 128 N. Main St., River Falls, Wisconsin, and pursuant to Wis. Stat. 19.85 (1)(g) to confer with legal counsel regarding litigation in which the City of River Falls Common Council is likely to become involved. Cronk made a motion to move into Closed Session. Morrissette seconded. The roll call to recess into Closed Session passed unanimously at approximately 7:42 p.m.

The Council discussed the subject matter in Closed Session.

At 8:52 p.m., MS Caflisch/Cronk moved to reconvene in Open Session. Unanimous.

Mayor Toland said Attorney Munkittrick would read the finding. Munkittrick said she would read the finding and then the Council would make a motion regarding the finding. She read the following:

Whereas, a public evidentiary hearing was held on June 26, 2012, at 6:30 p.m. at River Falls City Hall on the non-renewal of Class B Liquor and Class B Beer license previously issued to J P Corner Saloon, LLC, the applicant, JP Corner Saloon, LLC was present by its member and agent, John Paul Peterson, and represented by attorneys Mudge Porter, Lundeen, & Seguin, by attorney, Barry Lundeen, and the complainant, represented by River Falls Police Chief Roger Leque, was present in person, and represented by Weld, Riley Prenn & Ricci, by attorney William Thiel, and the Common Council presiding, represented by Rodli, Beskar, Krueger, & Pletcher, LLC, by attorney, Catherine Munkittrick, the applicant having been properly served with the summons and complaint in this matter, and the complainant, and the applicant having had full opportunity to present evidence, via witnesses and documents, and to cross-examine such witnesses, the Common Council hereby finds as follows:

FINDINGS OF FACT

1. John Paul Peterson is the listed member of the applicant, JP Corner Saloon, LLC.

2. John Paul Peterson is the designated agent of the applicant, JP Corner Saloon, LLC.

3. Within the past ten years John Paul Peterson has been convicted of the following violations of state law and/or City of River Falls ordinances:

a. October 19, 2003: Disorderly Conduct at the Corner Saloon, in violation of River Falls City Code C11.09 adopting Wis. Stat. 947.01.

b. July 11, 2004: Keeping tavern open after hours in violation of City of River Falls Code Section 5.08.100.

c. December 19, 2008: Disorderly Conduct in violation of River Falls City Code Section 9.04.010, adopting Wis. Stat. 947.01, at Coach’s Bar at 127 S. Main St. River Falls, WI

d. April 18, 2010: Operating While Intoxicated in violation of City of River Falls Code of Ordinances, Section 10.04.010.

e. July 31, 2011: Keeping tavern open after hours in violation of River Falls Code Section 5.08.100.

4. The circumstances of these violations/ convictions are substantially related to the licensed activity, i.e. operation of a licensed premises because the circumstances of the violations related to the operation of and conduct occurring on a liquor licensed premises (after-hours violation and disorderly conduct), and the ability of John Paul Peterson, as agent and sole member of the J P Corner Saloon LLC, to comply with laws relating to operation of a liquor licensed premises and consumption of alcohol beverages (OWI, after-hours, and disorderly conduct). The violations thus reflect substantially on the applicant’s ability and willingness to comply with laws relating to the licensed activity, i.e. the on premises sale and serving of alcohol beverages to customers in a public place in compliance with all laws relating thereto.

5. The Council has previously renewed his license.

CONCLUSIONS OF LAW

6. Although John Paul Peterson, as agent and sole member of JP Corner Saloon, LLC does not possess the qualifications to be issued an alcohol beverage license under Wis. Stat.125.04 (5)(a)1 and 125.04 (5)(b) because he:

a. Has an arrest and conviction record the circumstances of which are substantially related to the licensed activity, i.e. operation of a Class B liquor and Class B Beer licensed establishment for the sale to and consumption by customers of alcohol beverages.

b. Has habitually been a law offender with respect to laws substantially related to the liquor and beer licensed activity.

c. In this case, as a matter of fairness, the Council finds it appropriate to consider the history of previous renewals.

DECISION

The Application of JP Corner Saloon, LLC to renew its Class B Liquor & Class B beer license is hereby approved with the following conditions:

* During the period of July 1, 2012, to August 30, 2012, the applicant will notify the City Clerk of a period of five consecutive days for which they will be closed for business. Notice to be given to Clerk five business days prior to commencing the closure.

* The City Council reserves its rights to rely on these violations in any future consideration of license renewal, suspension, revocation or other official actions related to the licensed premise.

MSC Cronk/Nordgren move to approve the decision. Unanimous.

PUBLIC COMMENT, PETITIONS, REQUESTS AND COMMUNICATIONS:

Kristan Kimmes from DeVine Liquor was present to answer any questions. There were no other comments.

Request to amend licensed premises – DeVine Liquor LLC. 703B N. Main Street

MS Caflisch/Cronk move to approve request to amend premises. Gagne asked if she was going to place a barrier restricting access to alcohol. Kimmes said there are two walls now but a barrier would be constructed on the open side. Gagne asked if staff would be present when alcohol was being sold. Kimmes said yes, and there will be an infrared camera recording at all times. Gagne asked about access to the cooler – if it was just staff access. Kimmes said yes.

Morrissette asked if clients would be coming from the access area or outside. Kimmes said outside. Morrissette asked if the alcohol sold outside would just be a tasting. Kimmes said yes that was the request for right now. Morrissette asked about the handicapped parking spot remaining, and if the store next door had any objection. Kimmes didn’t believe so.

CONSENT AGENDA:

Acknowledgement of the following minutes:

Plan Commission – 4/3/12; Police, Fire and Ambulance Commission – 5/7/12; Fire Department – 4/2/12; Library Board – 5/7/12; BID Board – 4/11/12

Resolution No. 5608 - Awarding Bid for 2012 Mill & Overlay Program

Resolution No. 5609 - to Initiate Amending the City of River Falls Official Zoning Map to Create a SZ School Zone Classification

Resolution Approving Purchase of New Transformer and Equipment for Hydro Generation and Disposition of Old Equipment -- Pulled by Gagne

MS Morrissette/Nordgren Cronk move to approve the remainder of the Consent Agenda. Caflisch asked that the minutes get to the Council the following month. City Administrator Simpson said the minutes were provided after they were approved and most did not have another meeting until June. He said draft minutes could be provided.

The Mayor asked for a vote. The motion passed unanimously.

Resolution No. 5610 - Approving Purchase of New Transformer and Equipment for Hydro Generation and Disposition of Old Equipment

Gagne asked if there were buyers for the parts. Simpson said there was not a contract. The information provided was the best fair market estimate.

MSC Gagne/Cronk move to approve resolution. Unanimous.

ORDINANCES AND RESOLUTIONS:

Ordinance No. 2012-05 – Ordinance to Create §8.20.080 of the City Code – Frequency of Fire Inspections – First Reading

No comment

Ordinance No. 2012-06 – Ordinance Suspending Enforcements of §10.16.020 of the Municipal Code of the City of River Falls – Parking Meters – First Reading

The Mayor introduced Management Analyst Paul Fagin who was providing a presentation. Fagin said this ordinance would suspend the enforcement of the parking meters. He talked about the process that has occurred. Fagin noted there are problems with the meters including leaking water leading to wet coins, meters freezing up, replacement parts getting harder to get and downtown River Falls has really changed. Fagin gave a financial overview of the revenues versus expenditures. He said revenues varied while expenditures kept going up. He reviewed previous studies the City had done on the parking meters. Fagin talked about how they have tried to reach the public regarding the meters including public meeting. He said the public consensus seemed to be some regulation needs to be done but it is unclear what it should be. Fagin explained they are looking at imposing a year-long moratorium to study the issue and return to Council with suggestions. He asked Council if the moratorium could begin on July 2 before the second reading to maintain a proposed timeline. Fagin asked if there were any questions.

Reese asked about public feedback received regarding a year-long moratorium and if the Chief would retain control of the meters, if a problem occurred. Chief Leque said that Council action would be needed to change the moratorium. He suggested that there could be other alternatives such as parking zones. He said the idea of a moratorium would be to find the parking problems.

There were further questions by Council including notifying the public about the meters and how would we know if there is a problem. Leque explained the current enforcement. Morrissette asked how long the study would truly take. Leque said a year-long moratorium was looked at due to the university and other factors. Fagin said people act differently when meters aren’t being in force. Morrissette said he wasn’t comfortable beginning the moratorium before the second reading.

Gagne said he had talked with businesses owners about this. He said there was concern about students parking downtown in front of businesses. Leque felt if that was a problem an interim parking restriction would be imposed to move traffic. Gagne said there was also concern about employee parking and perhaps a fee based permit parking would help. Caflisch said that is one of the reasons the parking meters were installed. Leque suggested talking with employees as there are several options for parking. Simpson talked about several free parking options. Leque talked about being reluctant to move ahead without a study. There was further discussion. Simpson said the decision would happen at the July 10 meeting.

REPORTS:

Severe Weather Warning Sirens Report

Police Chief Leque gave a presentation on the City’s weather sirens. He said there are seven outdoor sirens. He showed their locations, ages, activation points, and activation requirements. He would rather defend activation than a non-activation. He showed photos of each siren and provided information on each one. Leque showed the activation schedules which are on Mondays unless local conditions are threatening. Information can be found on the Police Department’s website. Chief Leque fielded questions from Council.

Caflisch felt the sirens were sounded when conditions don’t warrant it. Reese agreed but talked about an incident when the sirens sounded and his neighborhood was okay but Golfview got hit. Kusilek said the sirens sound for everyone as you never know where bad weather will strike. Nordgren asked if weather radios were used in making a determination for activation. Leque said people are encouraged to have their own methods in place to monitor the weather. He said if people ignore the siren that is the choice they make. They are doing a public service. Gagne asked if different sounds could be used to indicate thunderstorms versus tornados. Leque said possibly but didn’t think that was a practical solution. There were no further comments.

Administrator’s Report

No comment.

Comptroller Report for May 2012

Comptroller Reese read the report. General Fund revenues through the end of May were $2,988,016 and include $10,877 in recreation fees and $12,143 in court costs and fines. Expenditures for the same period were $2,941,144 or 35 percent of budgeted for a net of revenues over expenditures of $46,872.

ANNOUNCEMENTS:

Mayor’s Appointments:

BOARD OF APPEALS

New Appointment of Eric Amundsen through July 2015

Reappointment of Thomas Heimerl through October 2015

MSC Morrissette/Kusilek move to approve appointments for Board of Appeals. Unanimous.

LIBRARY BOARD

Reappointment of Judith Caflisch through July 2015

Reappointment of Janet Johnson through July 2015

MSC Morrissette/Gagne move to approve appointments for Library Board. Unanimous.

PLAN COMMISSION

New Appointment of Lisa Moody through July 2015

Reappointment of Todd Schultz through May 2015

Reappointment of Thomas Heimerl through July 2015

MSC Morrissette/Kusilek move to approve appointments for Plan Commission. Unanimous.

PARK AND RECREATION ADVISORY BOARD

Reappointment of Susan Reese through May 2015

Reappointment of Brenda Gaulke through May 2015

MSC Morrissette/Gagne move to approve appointments for Park and Recreation Advisory Board. Unanimous.

DOWNTOWN DESIGN REVIEW COMMITTEE

New Appointment of Amy Halvorson through June 2015

Reappointment of Todd Schultz through July 2015

MSC Morrissette/Kusilek move to approve appointments for Downtown Design Review Committee. Unanimous.

CLOSED SESSION:

MS Nordgren/Gagne move to recess into Closed Session at 9:59 p.m. per Wisconsin State Statutes § 19.85 (1)(e) and (g) for the following purposes:

“Deliberating or negotiating the purchase of public properties, the investing of public funds, or conducting other specified public business, whenever competitive or bargaining reasons require a closed session; to-wit: sale/purchase of Whitetail Corporate Park lots ” and

“Conferring with legal counsel for the governmental body who is rendering oral or written advice concerning strategy to be adopted by the body with respect to litigation in which it is or is likely to become involved; to-wit: update on pending legal matters.”

The roll call vote to recess into Closed Session was unanimous.

Council had discussion on items for Closed Session consideration.

RECONVENE INTO OPEN SESSION AND ADJOURNMENT:

MSC Caflisch/Morrissette move to adjourn into open session. Unanimous.

MSC Nordgren/Gagne motion to authorize City Administrator Simpson and other City Officials to finalize options with Interfacial Solutions and Q & M regarding property in Whitetail Corporate Park.

Motion by Reese to adjourn meeting.

Kristi McKahan, Deputy City Clerk (Pub. 07/19/12) __________________________________________ WNAXLP

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