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HomeMy WebLinkAbout05/09/1988 Meeting (2) -- M I NUT E S Eugene City Council City Hall--Council Chamber May 9, 1988 7:30 p.m. COUNCILORS PRESENT: Freeman Holmer, Ruth Bascom, Cynthia Wooten, Roger Rutan, Robert Bennett, Debra Ehrman, Jeff Miller. COUNCILORS ABSENT: Emily Schue. The regular meeting of the City Council of the City of Eugene, Oregon, was called to order by His Honor Mayor Brian B. Obie. I. PRESENTATION OF URBAN FORESTRY REPORT Councilor Bascom said the Urban Forestry Report is completed and she will bring this item back to the council during a Wednesday work session. She asked councilors to read the report in preparation for that session. 4It Mayor Obie welcomed the Weblos Cub Scout Troop from Ellis Parker Elementary School. II. PUBLIC FORUM Mayor Obie gave an opportunity to those who wished to address the council about subjects that are not scheduled for council consideration. Anthony Pomerleau, 4085 Potter Street, addressed the council regarding Ordi- nance 815.220, regarding obstructions on windows. Mr. Pomerleau said the ordinance is vague and is interpreted inconsistently by different individu- als. He termed the ordinance IIgrossly unfairll and said it was not uniformly enforced by the police officer. Mr. Pomerleau said the words IIprohibits and impairsll should be more clearly defined in the ordinance. He said if the ordinance should prohibit the use of tinted windows, it should also preclude businesses from installing tinted windows or to supply the materials to tint windows. Mr. Pomerleau recommended that both citizens and police have clear guidelines to follow regarding this issue. Monte Marshall, 1865 East 28th Avenue, discussed the Gateway Regional Shop- ping Mall. He noted that Springfield's Planning Director had recently ap- proved the application by General Growth to construct an 800,000 square foot regional shopping center on Gateway Road in Springfield. Mr. Marshall said e MINUTES--Eugene City Council May 9, 1988 Page 1 -- e e this 800,000 square foot space can be compared to 700,000 square foot retail space in the downtown core in Eugene, and will have significant long-term negative impacts on the community. Mr. Marshall said one of the negative effects of the mall will be in maintaining the viability of the downtown core as a commercial core; another negative aspect was transportation, including the possible doubling of traffic on Harlow Road. Mr. Marshall said he had written a letter to the L-COG Transportation Committee regarding transporta- tion issues, and wished to bring this item to the council.s attention. He asked the council to give direction to the Public Works Department to respond to the items in TransPlan affected by the development, and to give clear direction to the Planning Department to address the issues regarding the development's affect upon the Metropolitan Plan goals of maintaining downtown cores as viable commercial centers. Mr. Marshall noted he had filed an appeal of the Springfield Planning Director's decision, which will be heard by the Springfield Planning Commission Wednesday, May 11. Councilor Bascom asked staff to look into the issue of tinted windows and the ordinance enforcement. Regarding Mr. Marshall comments on the Gateway development, Councilor Bennett said he has had an opportunity to participate in a neighborhood group discus- sion on this issue as well as discussing transportation issues with Dave Reinhard of the Transportation Division. He wished to go on record as being extremely concerned about the potential traffic impact on Gateway and Harlow roads. He noted that Harlow Road is an arterial, not a highway to the Gate- way development, and he said he would resist any action that encouraged increased traffic on Harlow Road as a result. Councilor Bennett said at the same time, the land has been commercially zoned for some years, and the City of Springfield had made it clear that it wished to see substantial commercial development on the site. He recognized that right, and added that the devel- opment would create jobs. Marcella J. Martin, 4062 Marcum Lane, said she was concerned about the adult book store located off 7th Avenue near Waremart. She said she is a housewife and mother, and passes the adult book store often. She is gravely concerned and offended by the presence of the business in the city of Eugene. Ms. Martin said she did not know the law that well, but she felt that every morally upright citizen of Eugene with intelligence regarding the effect these products have on people should be concerned. Recently, beside Waremart, a business has opened advertising IIharmless visual stimuli.1I This was upsetting to her; she did not know what this meant until she called the City Manager's Office, and she was informed it was a topless bar. Ms. Martin said she was shocked. She wished to put this issue before the City Council. Mr. Martin understood that the courts upheld the rights of these businesses in court challenges. She was concerned about this. Ms. Martin said citizens have a right to object to IImorally decadentll types of businesses. She felt that these businesses promote deviant sexual behavior and activity in socie- ty. Ms. Martin encouraged the City Council to adopt an ordinance prohibiting the activity, noting that the only cost to the City would be district attor- ney costs. MINUTES--Eugene City Council May 9, 1988 Page 2 e III. PUBLIC HEARING: ORDINANCE REGULATING THE SALE OF DRUG PARAPHERNALIA e e Vic Mann of the Department of Public Safety presented the item. He said the Public Safety Department and the City Attorney's Office have researched the regulation of drug paraphernalia sales as requested by the council. Mr. Mann said he wished to make it clear that this was not the first and only action taken by the City regarding drug problems. The City of Eugene Narcotics Unit has been recognized as one of the most active narcotics units in the country, particularly in regard to methamphetamines. During the last legislative session, the City actively lobbied the legislature to develop the chemical precursor law, making it more difficult to produce methamphetamines in Ore- gon. The City had also worked on a number of drug-related bills during that session, and planned to continue this work. Mr. Mann said the department is implementing a new program focusing on repeat offenders in drug-related offenses. Mr. Mann said there have been two basic approaches to regulating the sale of drug paraphernalia. The most obvious is to ban the sale of paraphernalia. Other agencies Mr. Mann contacted unanimously reported that this sort of ban has had limited effect, particularly in the area of regulating business sales. Such a ban required covert operations that took many resources and were not cost-effective given the other drug problems the agencies faced. Only one agency contacted reported using the ban successfully to prosecute a business. The second approach towards regulating the sale of paraphernalia was the use of a business license. Bend and Roseburg both have license laws and reported that they were able to enforce the law with minimal effort; the affected businesses either choose to discontinue their product line or com- plied with the law. Mr. Mann said the Department of Public Safety favors the business license approach for both practical and legal reasons. The ordi- nance would be enforceable and would change the way drug paraphernalia was marketed in the community. Citizens have expressed concern about the appar- ent availability of drug paraphernalia and the message this sends to juve- niles. The ordinance would require businesses to have drug paraphernalia items out-of-sight to juveniles, and could be enforced using current business license procedures within the department. It would be enforced in a manner similar to those ordinances regulating pawn shops; the ordinance would re- quire businesses selling drug paraphernalia to obtain a business license from the City, which would be issued through the Permit and Information Center, with the Department of Public Safety responsible for background investiga- tions and ordinance enforcement. Mr. Mann discussed the requirements for maintaining a business license: the area where paraphernalia is sold must be isolated from other areas of the store, and persons under 18 will not allowed in those areas; paraphernalia sales must be recorded, and those records will be open to police officers' inspection; employees of the businesses cannot have a conviction for drug crimes (not including less than an ounce viola- tions). If businesses fail to follow the license regulations, the license can be suspended; upon the third violation within two years, the business drug paraphernalia inventory would be subject to forfeiture proceedings. If MINUTES--Eugene City Council May 9, 1988 Page 3 e e e the ordinance is adopted, the department would begin to notify businesses of their need for compliance within 30 to 60 days, with a goal of having the program in affect by July 1. Councilor Holmer asked what the cost of the license would be. Mr. Gleason replied approximately $250. Councilor Ehrman asked how many businesses in Eugene this would affect. Mr. Mann estimated four to eight businesses would be affected. Councilor Ehrman asked Mr. Barkovic, City Attorney's Office, if this ordinance would work with the State law. Mr. Barkovic said he did not believe so; the City cannot prohibit what the State permits in the area of criminal law, and there is no such exposure in this case. He believed a ban with a jail penalty would create a conflict with the State. He did not anticipate this would be a problem. Mr. Mann referred the council to a collection of paraphernalia on display. Councilor Ehrman asked what the department's experience is with the current juvenile ordinance regarding endangerment; Mr. Mann said he checked back two years and could find no prosecutions. Mayor Obie opened the public hearing. Liz Thwing, 2450 Pioneer Pike, said she was speaking for CoSAC and the Junior League of Eugene. She said she had eight to nine years of involvement in the areas of substance abuse education, legislation, and information. Volunteers alone cannot eradicate the drug problem in the community. There must be legislative support and laws to provide valid sanctions and deterrents to the sale and manufacture of the drugs and paraphernalia. Ms. Thwing said that her experience tells her that Oregon is in desperate need of legislation to control the sale of illicit substances and drug paraphernalia. Ms. Thwing expressed the opinion that drugs do not exist independently of drug parapher- nalia. She expressed gratitude for the introduction of the ordinance, mod- eled on the DEA Paraphernalia Model Act description of paraphernalia. She expressed the hope that Oregon would join other states with paraphernalia regulations. Ms. Thwing said it was not in the best interest of the communi- ty, particularly with the new direction toward economic development, to maintain notoriety as one of the best places in the nation to obtain drug paraphernalia. Ms. Thwing said the ordinance would not eliminate drug use, but she hopes it will IIregulatell it. She said it was hypocritical and incon- sistent to teach drug awareness and outlaw certain drugs while permitting the unrestricted merchandising of paraphernalia to do drugs. Ms. Thwing said banning paraphernalia is not the total answer, but a statement that the community cares about its children. Rob Willis, 827 East 35th Place, said Eugene needs people who care for their children and neighbors. When people sell drug paraphernalia, they do not care about people. Eugene needs caring people. Mr. Willis supported regu- lating the sale of drug paraphernalia. Ben Yem, 2271 Ironwood Drive, said he attended Cal Young Middle School and was in the eighth grade. He said that as a student he sees many people who MINUTES--Eugene City Council May 9, 1988 Page 4 e e e take and have drugs. Mr. Yem said allowing the sale of paraphernalia will increase the sale of drugs in the schools, because haVing "drug tools" is one step closer to having drugs. Gloria Timmons, 2825 Eleanor Street, said she is the chairperson of the Public Safety Advisory Committee. She said the committee is composed of concerned, informed, committed representatives from various neighborhood groups, the two local school districts, and the business community. Ms. Timmons said that the sale, manufacture, production, distribution, and use of illegal substances is a significant issue in the community. She said a definite correlation exists between Eugene1s "high incidence of crime" and illegal drug use. Marijuana and cocaine are readily available. Ms. Timmons said children are being exposed to these drugs at increasingly earlier ages. Due to the direct relationship between the purchase of drug paraphernalia and the use of illegal substances, the Public Safety Advisory Committee voted unanimously to support the adoption of the ordinance regulating the sale of drug paraphernalia. She acknowledged the efforts of City staff who worked on the draft ordinance, but recommended two changes. The first change was in Section 8, license fee: the committee recommends the fee be increased to represent 100 percent of the total costs incurred to process a business license in the City of Eugene. The second change is in Section 12, civil forfeiture: the committee recommends that wilful violation be defined as the second violation, rather than the third. Ms. Timmons urged the council to adopt the ordinance with the described amendments. Tom Hoyt, 975 Oak Street, said he has served on several City commissions. He said that he came to the council today in public outrage. He had visited a store in downtown Eugene and spent $31. He showed the City Council the items he had purchased. He noted that during the time he had been in the store, there were 12 teenagers in the store, along with many adults. He said the adults in the store do not deserve to be in Eugene and need to leave Eugene. He said they were "really bad people." He said he could not call the teenag- ers bad people because they are still innocent. When they are able to go to a store in downtown Eugene and be exposed to "coke kits,ll such as the type he held in his hands, it is time to tell those that sell such products to get out of Eugene. Mr. Hoyt said the ordinance is a bare minimum of what is needed. A statement must be made. He described the paraphernalia he had purchased and the ways to use the devices. Bill Taylor, Counsel to House Judiciary Committee, 453 State Capitol, said he was asked to come to the meeting to give the council an idea of bills being considered at the legislative level that could pre-empt the council's efforts in this area. He said that Citizens for a Drug-Free Oregon are looking at a drug paraphernalia bill based on nuisance theory. Mr. Taylor said he had a copy of LC230-B, a forfeiture model ordinance being worked on under the auspices of the judiciary committee. Councilor Holmer clarified that the bill is in draft form and has not been introduced. He asked when it would be effective if adopted. Mr. Taylor said the legislative session will start in January, and predicted the earliest it would be adopted would be April or May. Responding to a question from Mayor MINUTES--Eugene City Council May 9, 1988 Page 5 e e e Obie, Mr. Taylor said he had staffed the house judiciary committee and was responsible for monitoring HB2386. Dr. Richard Sharvy, 2447 Kincaid Street, said it would not matter if the council passed the measure under consideration because it was so "ineptly drafted. II Dr. Sharvy said this measure had absolutely nothing whatsoever to do with preventing drug abuse and nothing to do with preventing the use of toxicants by minors. He said selling drug paraphernalia to minors is already prohibited by State law. There have been no prosecutions under that State law. Dr. Sharvy said headshops sell lots of items besides so-called drug paraphernalia, such as t-shirts, books, posters, and incense. He said this measure harasses certain minorities for their preference in intoxicants. A substantial minority, 35 percent of the people in Lane County, voted two years previous to legalize unlimited cultivation and possession of marijuana. Dr. Sharvy pointed out if Payless sold cigarette papers, mirrors, and razor blades, the police are not going to harass them under this measure; however, a record store selling cigarette papers, mirrors, and razor blades will be harassed by the police. Dr. Sharvy said he found fourteen outright mistakes in the ordinance draft. He pointed out that every drug store must be li- censed as a paraphernalia shop, as hypodermic needles are defined as drug paraphernalia. The ordinance appears to exempt pharmacies that sell drug paraphernalia upon the written prescription of a doctor; hypodermic needles can be sold legally in Oregon without such prescriptions. The definition of controlled substance in the third paragraph is wrong; Oregon Chapter 457 does not make unlawful the use or possession of anything. Dr. Sharvy said he had three different controlled substances in his pocket; the use of these sub- stances is not prohibited under any State or Federal law. Cultivation, sale, and possession of marijuana is prohibited; smoking marijuana is legal. Dr. Sharvy reiterated that the ordinance was designed to harass certain adults for their personal, private choices. Dr. Sharvy said he was ashamed to live in a city so intolerant of minorities. Tom Alexander, 215 SW 2nd Avenue, Corvallis, said he publishes a contro- versial trade journal for the marijuana industry entitled "Sensimilla Tips." Mr. Alexander said the researchers looked into the Roseburg ordinance, simi- lar to that proposed for adoption tonight. In 1984, Diane Wicker was arrest- ed in Roseburg for offering for sale and possessing "Sensimilla Tips" under that ordinance. The arrest was harassment by Roseburg police due to the woman's work as a political activist for the Oregon Marijuana Initiative, and was staffing a booth offering the magazine for sale. The police officer interpreted the law to include the magazine. Subsequently, Ms. Wicker filed suit against the Roseburg Police Department; the suit was settled out of court for $5,000. Mr. Alexander expressed the hope that the council consid- ers, in the current drug hysteria, the fact that certain police officers could interpret the law to include printed matter. He said that hysteria about drugs has been going on for 70 years and has only recently reached fever-pitch. The war on drugs first declared by Richard Nixon is clearly not working. Mr. Alexander asked the council to consider other methods to solve the drug problem. MINUTES--Eugene City Council May 9, 1988 Page 6 e e e David Fidanque, 1679 Willamette Street, represented the American Civil Liber- ties Union. He said what the council has before it is a budget decision and a question of priorities in terms of how the City will use its resources. He said there is a strong criminal statute on the book prohibiting the sale of drug paraphernalia and tobacco paraphernalia to minors. He asked why that ordinance was not being enforced. He said the police department has been required to make tough choices on how it will spend tax payers dollars in enforcing the law. He said the problem is not a lack of laws; the problem is how the City is going to attack the problem. Mr. Fidandque said the ordi- nance before the council has flaws. He said regardless of whether the ACLU gets involved in a court battle, there are other groups prepared to challenge this ordinance on legal grounds. Mr. Fidanque said as a citizen of the city of Eugene and a representative of the American Civil Liberties Union, he hoped the council would make a decision directing the police to continue doing a good job and not put another unenforced ordinance on the books, or put one on the books that will result in a lengthy and expensive court battle for the City. He urged the council to put this amount of money in the battle against the real drug problem, methamphetamine manufacture and other serious crimes in the city. Mr. Fidanque said that the Eugene School District has a program about to be cut dealing with "students-at-risk." At the same time, the council is contemplating the expenditure of money on this direction, which Mr. Fidanque called a misdirection of scarce resources. Mr. Fidanque urged the council to delete the section relating to hypodermic needles if the ordinance is approved. Bob Smalley, 303 Centre Court, said he is retailer and property owner in Eugene and Portland. He product line includes t-shirts, posters, novelty items, and smoking articles targeted for licensing in the ordinance. He said he has been in business in Oregon for 16 years and entered the Eugene market five years previous. He said a retailers reason for deciding whether to enter a new market is based solely on an anticipated demand for the product being sold. The success of a new retail venture is based on satisfying existing customer retail demand. Mr. Smalley said he had invested $250,000 in commercial buildings and a house in Eugene on West 7th Avenue. Mr. Smalley said he has a substantial investment in the city of Eugene. He has always complied with State law governing the sale of smoking articles to minors and posts signs forbidding minors to enter or remain on the premises. He said he favored the law passed by the Oregon legislature; it gave him the ability to regulate the sale of smoking articles to minors and it works because it is illegal for minors to use smoking devices for any purpose. Mr. Smalley said he feels his store is being targeted and his customers discrimi- nated against through this ordinance. State law has not determined that any of his products are illegal to sell to adults. He failed to see why the City of Eugene would want to enact a law targeting stores engaged in legal activi- ty. He found the ordinance offensive in its obvious intentions of ridding Eugene of targeted stores, and discriminating against his adult customers. MINUTES--Eugene City Council May 9, 1988 Page 7 e e e Greg Veralrud said he is a lawyer in Eugene. Mr. Smalley is one of his clients. Mr. Smalley had contacted him last week indicating that he wished to speak tonight, but needed help interpreting the ordinance. Mr. Veralrud said he had studied the ordinance carefully, as well as looking at other legislation in other states, and court decisions regarding legislation. Mr. Veralrud said he did not think there was anything about the ordinance that could be deciphered by a reasonably intelligent person to let them know exactly what was being regulated, how it was being regulated, and the purpose of the ordinance. Mr. Veralrud said some of this is a bit like pornography; you know it when you see it but trying to define it and make it a workable statute meaning something to the community is another matter. The statute and ordinance is flawed. The definitional sections are taken nearly verbatim from the Attorney General model act and borrows from the proposed State ordinance. There is nothing on the defined list of objects that can be considered drug paraphernalia that do not have hundreds of legitimate uses as well as illegitimate uses. This includes mixing bowls, blenders, spoons, capsules, envelopes, containers, 1I0ther objects,1I hypodermic needles, testing equipment, scales and balances. The only indication of what exactly is prohibited is the addition of the statement lIintended to be used or used in conjunction with controlled substances.1I He asked who would determine wheth- er or not something was intended or designed to be used with controlled substances. That finding can be made by virtue of how a third person, the purchaser, uses that product. Mr. Veralrud said this flaw has caused this sort of ordinance to be overturned in other jurisdictions. He said Dave Fronmeyer had reviewed the ordinance on the State level, who said that, IINotwithstanding the bill's facial constitutionality, the practical difficul- ties in enforcing the bill and the narrow scope of the bill, due to the complex culpable mental state requirements, suggests the bill as drafted may not accomplish the apparent legislative aim.1I Mr. Veralrud said the council should be concerned about the resources being used by the City Attorney's Office and the already thinly stretched resources of the police before enacting such an ordinance. He said that if whoever makes the decision about who must comply with the law has the same difficulty he did in interpreting the ordinance, it will essentially be a case of III know it when I see itll determination. Mr. Veralrud said the community does not need this added cost in the war on drugs. The great majority of tools use to ingest controlled substances are not found in IIheadll and novelty shops, but rather in the grocery store. You don't need a gold razor blade to cut up cocaine or need a kit to put it up your nose; you can get a straw at a fast food restaurant. Mr. Veralrud suggested that the council is misplacing valuable resources by adding this load to the community in terms of available police. He submitted that drug abuse and drug paraphernalia do exist inde- pendently. Mr. Veralrud said that the ordinance's recordkeeping requirement calls for the name and address of anyone purchasing such a product to be written down and subjected to police review. That information becomes part of the police computer record, and will be used by police officers to ma~.e search decisions. Innocuous purchases by law-abiding citizens would be added to the computer as a person who purchases from and frequents IIheadshopsll for drug paraphernalia. MINUTES--Eugene City Council May 9, 1988 Page 8 e e e Paul Ferter, Salem, Oregon, said he was an attorney representing Mr. Hal Eisenberg and wished to speak to the constitutionality of the ordinance. He said there is a drug problem; the question is, how should it be approached. Mr. Ferter said he had a client in Bend who asked him to review the Bend ordinance. Mr. Ferter concluded that the ordinance was probably unconstitu- tional, but it would cost money to fight the ordinance. As a result, the client decided it would be more cost-effective to move three blocks outside of the city of Bend. He said that most of the shops in Bend had been scat- tered to the outskirts of town and the ordinance had no actual effect. Mr. Ferter discussed the definition of drug paraphernalia, which is from the endangering the welfare of a minor statute. He said the statute has never been tested because it is not discriminately applied, but rather uniformly enforced against each member of the class it is directed against. Mr. Ferter said the ordinance under consideration would require a police officer to make an independent determination regarding ordinance enforcement. The enforce- ment effort will not be directed against large retailers, such as Fred Meyer, but rather toward small IIheadll shops in the community. Mr. Ferter predicted that the ordinance will be appealed to the Supreme Court until such time as a State law is passed. Mr. Ferter said selective enforcement will generate liability for the City. Mr. Ferter encouraged the council to wait for devel- opment of the State statute. He said that he had been consulted by almost all of the small communities regarding forfeiture ordinances being enacted because he has defeated about half of them. Hal Eisenberg, 1738 White Oak Drive, said he was a novelty and gift distribu- tor. He sells music, television, and movie personality posters, buttons, gifts, pipes, lighters, and tobacco and snuff accessories to gift shops, import stores, pipe and tobacco shops, record stores, department stores, and some of the stores that would be regulated by the ordinance. He is a 12-year Eugene resident and has been in business since 1972. He said that he assumed this ordinance would affect him indirectly through the targeted stores. Mr. Eisenberg said that a State ordinance already exists governing the sale of paraphernalia to minors. Additionally, Oregon has not declared any smoking articles illegal to adults. Stores enforce the minors' act by posting signs and checking identification. Such stores as Mr. Smalley's store are com- pletely enclosed and have no showcases on the outside. Mr. Eisenberg said that no arrests have been made under the existing statutes, which means either than every store in the state is adhering to the law or it is not being enforced. If the law is not being enforced, Mr. Eisenberg did not see the purpose of adding more laws. Mr. Eisenberg said the real problem with the proposed ordinance was post-en- forcement challenges. He said it had been determined unconstitutional na- tionwide to determine intent of retailers and customers. Selective enforce- ment could result in large costs to the City in the form of attorneys' fee. Mr. Eisenberg discussed a San Jose, California case where goods where seized and accidentally destroyed before trial; the retailer filed a $400,000 damage claim which he expects to collect; meanwhile, retroactive to seizure, the retailer is receiving ten percent interest until fees have been determined. MINUTES--Eugene City Council May 9, 1988 Page 9 e As a supplier to the targeted stores as well as local stores such as Fred Meyers, Sundance Natural Foods, and New Frontier Market, he questioned how it was determined who was carrying drug paraphernalia. Did everyone get li- censed? Mr. Eisenberg said due to constitutional problems, the Oregon Legislature had not passed legislation regarding this issue. The State is currently working on legislation that would eliminate the City's ordinance. Mr. Eisenberg urged the council to let the State be financially responsible to legal chal- lenges and lawsuits. He said the City views this ordinance as putting tar- geted stores out of business or moving them out of the city; the Bend and Roseburg experiences do not support this conclusion. Mayor Obie closed the public hearing. e Mr. Barkovic responded to those in opposition. He said that the ordinance is not a prohibitory ordinance, and if items such as hypodermic needles are dispensed with the necessary "mental" element, only a license needs to be maintained. The ordinance does not prohibit the activity, and he said this seems to be a point of confusion with what the City seeks to do in the ordi- nance. Mr. Barkovic said the comments regarding constitutionality of the ordinance were surprising to him. Every court that has considered the exact definitions and terms used in the ordinance has found them to be constitu- tional. Mr. Barkovic said the State has had opportunities to pass such legislation and has been unable to pass it. He said that Mr. Fronmeyer's 1986 opinion regarding the Model Drug Paraphernalia Act found the act to be constitutional on any challenge he could contemplate. With respect to the reporting requirements, they are precisely the same as those respecting used merchandise dealers' record-keeping. Referring to the Bend situation, Mr. Barkovic said he had no response to this; the City's authority is restricted to the city limits. He did not think this was a valid criticism as nothing would get done by the City. Mr. Mann said the bill is similar to the precursor laws administered through the State, so there is some precedence. He said that there are businesses who will try to operate with the license, and the Department of Public Safety will work with those businesses to ensure those businesses understand the licensing requirements and abide by them. Councilor Ehrman asked if the ordinance covered both retail and wholesale operations. Mr. Mann responded it covered both. Councilor Ehrman asked what the purpose of the record-keeping requirement is. Mr. Mann responded that this is a transaction similar to used merchandise transactions or precursor laws. A purchase can be a legitimate transaction, or it can be precursor to a legal transaction. Councilor Ehrman asked if the names would be entered into a computer. Mr. Mann said no; like a pawnshop situation, the department looks at the material transported and uses the name to develop investigative leads. He said the department also looks at trends in terms of what type of item is being bought and in what volume. Mr. Mann said he was unaware of the volume of transaction or if there really is much of a problem in terms of e MINUTES--Eugene City Council May 9, 1988 Page 10 sales of these items. Councilor Ehrman asked how the true name and current ~ address would be secured. Mr. Mann said identification would be required. Referring to Ms. Timmon's testimony regarding business license fees, Council- or Holmer asked if the City could realize 100 percent of the cost of the business license fee. Mr. Mann said the cost of the business license is covered under administrative rules. Mr. Gleason said the council generally sets a category and instructs the staff to examine that category based on a percentage of desired recovery. e Councilor Wooten discussed hypodermic needles in Subsection K. She asked if this would require pharmacies to be licensed under the ordinance. Mr. Mann said no. Mr. Barkovic said the reason they aren't covered is because of the IImental" element that goes along with the requirement. The City must show that the business is selling or marketing these items knowing they will be used with controlled substances. Councilor Wooten asked if "headshops" sold syringes. Staff did not know. Mr. Mann said he had not seen them. Council- or Wooten addressed Mr. Barkovic. She said she would support this ordinance with trepidation. She was concerned about the legal implications of what the City was doing. She asked how the City planned to prove IIknowing or intended for use." These terms have been interpreted as being constitutionally vague in other court cases she was aware of. How would the City know whether or not someone intends or knows an item is going to be used for illegal purpos- es? Mr. Barkovic said in any criminal statute there is always a mental element that the State or City must prove; second, the ordinance lists a number of factors considered to determine the use to which a particular product will be put. These factors must be considered and evidence developed as to someone1s mental state. He said it was difficult. Councilor Wooten asked again how mental state was determined. Was it the way the person looked or how old they are? Mr. Barkovic referred to Section 3.300. Councilor Wooten said she would like more information regarding who sells hypodermic needles. She did not think they were carried by "head" shops. Councilor Miller addressed the PSAC recommendation that the wilful violation be defined as the second violation. He asked for more information on this. Mr. Barkovic said that in the initial draft the penalty was for a second violation in a one-year period; this was extended to a third violation within two years because of the many licensing requirements and simple mistakes could be made by the business. He said that Police Services was comfortable with the penalty. Councilor Bascom asked for an assessment of liability. Mr. Barkovic said that businesses can challenge the ordinance; however, other ordinances such as this have passed court challenges. Mr. Barkovic said that the City has copies of those favorable court interpretations. Mr. Gleason added that any ordinance the council passes is subject to challenge. Councilor Rutan said the ordinance being proposed is a bare mlnlmum and he was embarrassed that the council had not taken this action long ago. He strongly supported the ordinance. e MINUTES--Eugene City Council May 9, 1988 Page 11 e e e Councilor Ehrman said she was supportive of the message being sent to the community. She was concerned with the record-keeping aspect of the ordi- nance. She said she had been told the purposes of the record-keeping, such as ensuring minors are not purchasing paraphernalia; however, there was already statutes covering this and no one had been prosecuted. Councilor Ehrman said this was a different issue from pawnshops; the purpose of getting the name of a person at a pawnshop was because of the need to track stolen merchandise. She was concerned about this requirement and felt it went beyond sending a message. It is not illegal for people to purchase parapher- nalia. She did not want the City in the position of "Big Brother" holding a list of people's names and addresses to be randomly used for other purposes. The record-keeping was going to be time-consuming for the businesses; she understood that may be the point. If the City intends to run these people out of business, this is certainly one way. She wanted to know what was being done with the names and addresses and wanted staff to report back on what was being done with the names. The biggest problem in the community is methamphetimine use, not marijuana or paraphernalia. Councilor Miller commended Mayor Obie for his leadership in this matter. He wished the council to take PSAC.s recommendation regarding the second viola- tion. He indicated he would make this amendment at the appropriate time. He suggested that the City send on the ordinance to Springfield and Lane County with the recommendation that they adopt it as well. Councilor Bennett said this ordinance brings some risks with it and the potential of some inequities. He said that the City is trying to make it difficult for these businesses to exist. He strongly supported the ordi- nance. Councilor Bascom said she did perceive the council as coming in on a white charger to bring justice and righteousness with this ordinance, but she said the ordinance made a statement and was worth a trial. Mayor Obie addressed some of the remarks made. He felt that if this ordi- nance was a "drug hysteria" response there should be more of it. "Drug hysteria" is not the problem. Mayor Obie said he has seen drug-related problems in his neighborhood and in his schools, and felt that this ordinance tells the community how the leadership of the community feels. He pointed out that three of the speakers speaking against the ordinance came from out of the community, and they are not required to live in Eugene with the prob- lems drugs create. In regard to the record-keeping portion of the ordinance, he said people who are using drugs will be identified. Perhaps they can be helped. Mayor Obie felt this was a positive thing for the community. He thanked the staff for researching the ordinance and bringing it to council. Councilor Holmer asked if there was any objection to substituting the word "second" for the word "third" on page 9. There was none. MINUTES--Eugene City Council May 9, 1988 Page 12 .. e CB 3039--An ordinance establishing regulations for items marketed for use with controlled substances requiring licenses; amending Section 3.005 of the Eugene Code, 1971; adding Sections 3.300, 3.302, 3.304, 3.306, 3.308, 3.310, 3.312, and 3.314 to that Code; and declaring an emergency. Councilor Holmer moved, seconded by Councilor Bascom, that the bill, with unanimous consent of the council, be read the second time by council bill number only, and that enactment as amended be considered this time. The motion carried unani- mously. Councilor Holmer moved, seconded by Councilor Bascom, that the bill be approved and given final passage. The motion carried unanimously. {/Q562.) Council Holmer moved, seconded by Councilor Bascom, to direct the staff to consider 100 percent of the applicable costs of fee recovery. The motion passed unanimously. Councilor Ehrman said she would like more information as to what staff takes into consideration when determining fee recovery. She suggested that the City not simply look at 100 percent fee recovery in this area alone, but consider it across the board. e The council recessed for ten minutes. IV. RECOMMENDATION FOR COUNCIL POSITION ON WILLAMETTE FOREST PLAN Councilor Rutan gave a brief overview of the agenda item. He said that the Council Committee on Economic Development (CCED) had reviewed the forest plan. He said CCED had carefully worked to define its scope of review. CCED received input from both sides of the issue. The issues revolve around resource management of the State's most valuable national resource. Council- or Rutan said the issues all came down to the allowable cut that can occur in anyone year. The preferred alternative, alternative J, goes through an extensive analysis as regards to different management practices, land set- asides from roadless areas, etc., and recommends an allowable cut of 568 million board feet per year. Councilor Rutan said that the council has the majority report from Councilor Holmer and himself, and the minority report from Councilor Wooten. Councilor Rutan acknowledged that the plan was very complex but the basic economic issues are very straightforward. He noted that the recommendation from Councilor Holmer and himself parallels closely that of Lane County. Lane County recommended that the allowable cut be somewhere between 650 million and 850 million board feet. Additionally, the Governor's Office has studied the plan, and the CCED majority recommendation is very close to the recommendation prepared by the governor's staff. Councilor Rutan said the tit MINUTES--Eugene City Council May 9, 1988 Page 13 e e e economic aspects of the management of the Willamette National Forest as proposed in preferred Alternative J is at a balance. He said he is not interested in seeing the forest be managed solely for the industry, but the issue is balance and long-term vision. Councilor Holmer said the minority report asks the council endorsement of a specific set of objectives. He did not think the council should be asked to vote on these as they are all part of preferred Alternative J, and he said the majority report avoided getting into that sort of detail. Councilor Holmer said all that is appropriate to do at this point is to request the forester to give careful review of the data and points of view expressed in the report, with closer attention to the economic considerations that the CCED majority did not feel was given sufficient weight. He did not feel that the council should ask staff to prepare formal comments and findings. Coun- cilor Holmer said that adoption of the report would not, as suggested by the minority report, threaten Oregon's finest outdoor and tourist attractions, irreparably harm critical fish and wildlife habitat, reduce hunting and fishing opportunities, degrade domestic watersheds, and foreclose many of the State's opportunities for growth and economic diversification. Councilor Wooten said the review process had been interesting, although she had not originally supported it. She noted the City of Salem decision stat- ing the preference for the lowest allowable sale quantity or cut of the nine alternatives on the basis of their findings that logging debris and sedimen- tation would harm their water supply. Councilor Wooten thought those com- ments were well-taken. She said she had read the comments coming from the governor's office, and no where in the comments did they specify any number of board feet or cut. Rather, they have asked the forest service for a delay in a final decision to allow more sophisticated and technical information on a variety of issues, including timber production, water purity and flow, and wildlife management. Councilor Wooten suggested that the council support the forest service's preferred Alternative J. She believed it was a balanced position creating an allowable cut 17 percent higher than has been allowed in the last ten years, and takes into consideration other forest values such as public land and recreation opportunities. Councilor Wooten said these have economic considerations as well. Unanswered questions remain regarding technical data that might affect the range of alternatives, but they do not preclude the council from considering a middle of the road, balanced propos- al. Councilor Wooten said the comparisons in the minority report came from the forest service plan itself and were not interpreted by her. While Councilors Holmer and Rutan did not specifically align themselves to alternative B, their proposal is closest to that for comparison purposes. She suggested that the council take a long-term look at the value of the forest rather than contemplate a 40 perc2nt drop-off after 15 to 20 years at the allowable cut levels supported by the majority report. Councilor Wooten said the forest service report suggests it will be necessary for the 13 local municipalities to spend extra money for water treatment as a result of sedimentation and debris in the local streams and surface water sources under preferred alter- native J. She recommended that the council adopt the forest service's pre- MINUTES--Eugene City Council May 9, 1988 Page 14 e ferred alternative J. Councilor Wooten said she would be willing to draft any council recommendations if necessary. Councilor Bennett said he appreciated the opportunity to read the minority report as well as the majority report, and commended the minority report as well-written. He referred to page 4, economic issues, of the minority re- port, and said to his knowledge those facts are accurate. Councilor Bennett said that in his conversations with people in the industry, automation will not continue at the current level with less of a negative effect on employ- ment. Additionally, the local area has not competed well with the southern portion of the United States in terms of transportation costs and other costs, and he understood this position may be improving. While lumber and wood products manufacturing employment is slowly declining in importance and diversification is occurring, it still playa major role in the local econo- my, and it is necessary that it be maintained over as long a period of time as possible. e Councilor Bennett asked Councilor Holmer or Councilor Rutan to address the minority report position on scenic issues. Councilor Holmer said it is true that there are more roadless acres, more scenery, and more old growth, but there are fewer jobs. The majority concern was to weigh dispersed recreation and developed recreation against the economic consideration. The majority did not believe the forest service gave adequate attention to the economic implications of the allowable cut. Councilor Bascom pointed out that this did not answer the question. Councilor Wooten said in the context of CCED discussions, the issue of scenic value was not brought up. She pointed out that there would be no untouched scenic corridors or view sheds under alter- native B, which she likened to the majority report; rather, 64 percent would be heavily cut. Councilor Bennett asked if there had been any technical response to the City of Salem's position. Councilor Wooten said forest service staff did not analyze that document. She reiterated that under the preferred alternative J municipalities using the forest as a water shed will spend additional money on water treatment due to additional sedimentation. Councilor Bennett asked if the CCED discussions had been affected by the County.s position. Council- or Rutan said the County's position came afterward. Councilor Wooten added that the County position recommended that nothing in the Waldo Lake area be touched at all. She said there is no way the local area can realize 700 million board feet from the forest on a ten to 15 year basis without cutting the Waldo Lake area, and said that the County's position was contradictory. Councilor Bennett suggested using 650 million allowable board feet in the recommendation to work with the County's position. Councilor Bascom said she would like to send both the minority and majority report to the forest service as the council will be split on this issue. She said, on the basis of her reading of the reports, she said it would be fair to put at the top of the list "timber supply;" however, she was unable to support the allowable cut recommended by the majority. She felt it disre- garded the critical issue of land resources and what the land is capable of e MINUTES--Eugene City Council May 9, 1988 Page 15 e over the long term, rather than 10 to 15 years. Councilor Bascom said ac- cepting anything but preferred alternative J creates the risk of overcutting the forest. The material provided by the industry included a statement that timber supply on private lands is a serious problem and overcutting has occurred. She did not think this justified cutting more on public lands. Councilor Bascom recommended that the recommendation include a statement regarding the importance of the timber supply to the City and encourage the forest service to pursue reforestation, and accept preferred alternative J. Councilor Miller expressed concern about jobs and the lack of local diversi- fication. He was impressed with Councilor Wooten1s report and considered it well done, but felt the majority concerns were important. He liked Councilor Bennett's suggestion to be in line with the County report to make a strong, consistent statement. Councilor Rutan clarified that he indicated the spirit of the majority recom- mendation mirrored the governor's preliminary comments on other forest plans to the effect the economic aspects of those plans are out of balance. Councilor Holmer pointed out, with respect to the various alternatives, the alternative J departure stipulates 670 million board feet allowable cut, which he felt would preserve the local forest jobs. After further discus- sion, Councilor Bennett said he would be comfortable with the figure of 670 million board feet. e Councilor Holmer moved, seconded by Councilor Rutan, to send a statement from the Eugene City Council to the Willamette Forest Supervisor requesting the assumptions on which the Willamette Forest Land Management Plan is based be revisited and modifications be developed to make the plan more support- ive of the role of timber management in the economic vitality of cities and counties dependent on the Willamette Forest and specifically, to attain an allowable cut of 670 million board feet. Roll call vote; the motion carried 4:3, with councilors Bascom, Ehrman, and Wooten voting no. Councilor Bascom moved, seconded by Councilor Ehrman, to allow the minority report to go to the forest service because of the closeness of the vote. Roll call vote; the motion failed 4:3, with councilors Miller, Rutan, Bennett, and Holmer voting no. V. AUTHORIZATION TO DISPOSE OF SURPLUS PROPERTY Mr. Gleason introduced the item. Councilor Ehrman asked for clarification of the value of the property. Les Lyle, Engine~ring Division, said the City is asking $435, or about $1.50 per square foot. . MINUTES--Eugene City Council May 9, 1988 Page 16 e Councilor Holmer moved, seconded by Councilor Bascom, to authorize the disposal of surplus City-owned property located between lots 66 and 67 of the First Addition to Solar Heights. Roll call vote; the motion carried unanimously. VI. MINUTES AND FINDINGS OF HEARINGS OFFICIAL AND APPROVAL OF IMPROVEMENT PROJECT (GILHAM ROAD) (JOB #1980) Mr. Gleason introduced the item. Councilor Holmer moved, seconded by Councilor Bascom, to approve the Hearings Official minutes and findings of April 19, 1988, and to approve improvements for paving of Gilham Road from Crescent Avenue to Honeywood Street. Roll call vote; the motion carried unanimously. VII. MINUTES AND FINDINGS OF HEARINGS OFFICIAL AND APPROVAL OF IMPROVEMENT PROJECT (IRVING ROAD) (JOB #2283) e Mr. Gleason introduced the item and noted that the project had been bid previously and the project bid had significantly increased. He predicted that this was a trend that would continue in the future as the project price on sewers is going up. Councilor Ehrman asked if this was part of the urban transition process. Mr. Lyle said yes, in part, but also as part of service delivery to annexed areas. Councilor Holmer moved, seconded by Councilor Bascom, to approve the Hearings Official minutes and findings of April 28, 1988, and to approve sanitary sewer improvements on Irving Road from River Road to Canterbury Street, Newcastle Street from Irving Road to Santa Clara Avenue, Santa Clara Avenue from River Road to Newcastle Street, Belmont Street from Irving Road to 550 feet south, and area between River Road and 165 feet west of Belmont Street from Irving Road to Santa Clara Avenue. Roll call vote; motion carried unanimously. VIII. CITY COUNCIL MINUTES OF: FEBRUARY 17, 1988; MARCH 9, 1988; MARCH 14, 1988; MARCH 16, 1988 Councilor Holmer moved, seconded by Councilor Bascom, to approve the City Council meeting minutes of February 17, March 9, March 14, and March 16, 1988. Roll call vote; the motion carried unanimously. Adjourned to May 11, 1988. Respe~tfully submitte~ by , '. ~ 7. ~.~.~{-- k",. .I~',9 ' ,-r~ ~~.....: . ,:.' '..... .., ,.,~ Micheal Gleason, City Manager MINUTES--Eugene City Council e May 9, 1988 Page 17 (Recorded by Leslie Scales)