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HomeMy WebLinkAbout05/05/1980 Meeting - e e M I N U i E S EUGENE CITY COUNCIL May 5, 1980 Special meeting of the City Council of the City of Eugene, Oregon, was called to order at 7:30 p.m., in the City Council Chamber, by Council President Betty Smith, with the following councilors present: Scott Lieuallen, Eric Haws, Jack Delay, Brian Obie, Gretchen Miller, and Emily Schue. Mayor Gus Keller and Councilor D. W. Hamel were absent. I. PUBLIC HEARINGS A. Amendment of Trespass Ordinance (Ordinance distributed) Ms. Smith stated she would like to extend the discussion time length from 15 minutes each, pro and con, to 30 minutes each, pro and con, due to the number of persons wishing to testify. Mr. Haws stated he felt the time limit should be kept to the time stated on the agenda. The consensus of the council was to extend the time to 30 minutes for each sipe. Charles T. Henry, City Manager, stated that the first item is a public hearing on a proposed amendment of the existing City trespass ordinance. This item had been scheduled previously for hearing at a later date, but at the request of the council, it was first read last Wednesday and final action will be taken on the ordinance tonight. Mr. Henry introduced Stan Long, City Attorney, to give background on the item. Mr. Long stated that the amendment to the ordinance is creation of a defense to a charge of trespass. This means that a person who is in a shopping center mall, within the free speech area, obeying posted regulations, or anywhere in the mall, if there was no free speech area designed in the mall, would have a defense against a trespass charge. There are other restrictions, such as dissemination of non- commercial materials. The amendment provides an incentive for shopping center malls to create a free speech area. This is not an attempt to declare areas open to the public, but rather re-defining the concept of "trespass." Mr. Long noted that legislative findings also have been distributed and are recommended for adoption. Adoption of this amendment would not affect the State trespass law. The redefinition of trespass also does not provide a defense for dis- orderly conduct. 5/5/80--1 Councilor Obie asked Mr. Long whether, if the ordinance is passed, it means that the City is not saying that there is a legal right to demonstrate in a shopping center, but rather that the City will not enforce the trespass ordinance in a shopping center. Mr. Long said that Mr. Obie's statement was correct; the State law regarding tres- pass may be required to be enforced with City police, but the City Prosecutor's office and Municipal Court would not be involved. Mr. Obie then asked why the City is not requiring free speech areas inside shopping centers rather than the approach of this ordinance. Mr. Long responded this could involve some substantial problems with drafting of such an ordinance and the City's authority in that area. This amendment would create a circumstance where choice is involved. If the owner wants the City's police protection, he would create a free speech area. If the owner chooses not to create a free speech area, he need not seek enforcement from the City of Eugene, but rather from the State code. This ordinance does not require a free speech area. It does not force anyone to support free speech or to permit it. Mr. Obie asked why a proposal would not be given to the council that would require such an area if that is the direction in which they wish to go. Mr. Long stated he doubted the City could accomplish that. Mr. Obie then asked if it would be Constitutionally invalid. Mr. Long responded that that would be one problem that could arise. What this does is modify Eugene's ordinance and withdraw protection for trespass violations under certain circumstances under the City Code. Mr. Delay stated that the council has gone on record to promote First Amendment rights and this proposal is a non-regulatory mecha- nism, i.e., an incentive, as opposed to a regulation. Mr. Long responded that this amendment would leave the choice up to the owner. The regulations and rules of the free speech area would also be up to the owner/manager. Councilor Haws moved to limit testimony for each side to 15 minutes. The motion died for lack of second. Mr. Haws left the meeting. Mr. Delay stated that the council has adopted the posture to enhance First Amendment rights and it would be helpful to him for those testifying to state whether they are opposed to First Amendment rights in general or only to the mechanism in the amendment. Public hearing was opened. 'f -- e Speaking in favor of the amendment: George Sheridan, 526 East 15th, stated this amendment is a step in the right direction to preserve First Amendment rights in shopping malls. Historically, market places have been places where ideas and products could be exchanged. He feels that this exchange of ideas should not be subverted by the idea of private property, and property not owned solely ~ by one person should not be included as being private property. ~ 5/5/80--2 ;- . Property belonging to large collective groups is a social prop- erty. In the case of Cynthia Kokis, the managers of Valley River Center were very arbitrary in deciding what could be said. They were also arbitrary in implementing their rules against political exhibits. He does not feel this should happen in areas where the public gathers. Dorothy Sistrom, 3386 Loma Linda, stated agreement with Mr. Sher- idan. The situation is the right of free speech versus the right of private property. The right of free speech benefits society as a whole. There needs to be an acknowledgment that shopping centers are quasi-public places. e Eric Roost, 1311 Willagillespie, American Civil Liberties Union, stated the reason for this ordlnance being before City Council dates back to 1972 when the US Supreme Court,- in the decision Lloyd Corporation vs. Tanner, which involved the Lloyd Center in Portland, overturned the decision of the Supreme Court of four years earlier in the Logan Valley Plaza case. In the Logan decision it was stated that free speech in any private shopping center that was a functional equivalent of a public business district would be protected. Justice Marshall, the author of the Logan decision, criticized the Lloyd decision with these words: liThe vote in Logan Valley was 6-3, and that decision is only four years old. But, I am aware that the composition of this court has changed radically in four years. II What had happened in those four years is that President Richard Nixon had appointed four members of the court. All four of the Nixon-appointed judges voted to withdraw the constitutional protection for speech from shopping centers. They were joined by only one other justice, but that was sufficient to create a new interpretation of our freedoms. The legislature has found itself more and more to be in the position of guarding freedoms. Previously, the Supreme Court had said it would be the protector of the Constitution. In the Eugene Register-Guard on April 24, 1980, an editorial noted that in the Stanford Daily case, the Supreme Court with the Nixon appointees said there was no freedom of the press to protect the newspapers from police searches without suspicion of a crime being committed. The Register-Guard stated that Congress is considering legislation that would protect newspapers from such searches. It further noted that the Oregon Legislature has already provided similar safeguards for the press in Oregon. City Council is being called upon to protect freedom of speech where it has been abandoned by the Supreme Court. Other efforts have and will be made in the Oregon courts and legislature. The proposed ordinance change is a good step in the right direction. e 5/5/80--3 Mr. Roost stated that he has concerns that the one percent of ~ the square footage which must be devoted to the free speech area ~ might be in an area that is not accessible to the public. Irv Fletcher, Lane County Labor Council, stated that working people have an interest in this topic. The covered shopping center mall area has taken the place of "Main Street," but the rights of the people or citizens to take their message to the public has not yet been clearly defined by the courts. Mr. Fletcher stated his idea of the issue is whether shopping cen- ters should be required to place a "sidewalk" within their boundaries. The rights of labor organizations to have access to covered malls when a bona fide labor dispute exists is not at issue here. This amendment does not affect labor organizations. He believes the free speech right of "Main Street II should be extended to shopping malls. Tim Shorrock, PO Box 3335, stated that he is a former co-worker of Cynthia KoklS. He stated this is a perfect example of a law made under a capitalistic society. It is typical of those laws made in a society ruled by those who are private property owners. One person went to a shopping mall with the purpose of encouraging people to buy. She had a sign that said not to buy one product and was led away in handcuffs and taken to jail. He does not feel there is a more graphic example of the laws of free enterprise and how they work in this country. He believes free speech must be protected. The ordinance needs to go much farther ~ than it does. Free speech areas should be visible and he would urge the City Council to pass this ordinance. Jane Alward, 2100 Madison, stated she had helped with the "Year of the Child" exhibit and is in favor of free speech. She asked if there would be someone who would be screening who would be allowed to participate in the free speech area if it were created. She had applied also for a permit to have an exhibit on the downtown mall and was sent by the Parks Depart- ment to Eugene Downtown Association where she said she was put through an inquisition by the secretary there; she feels her rights were infringed upon. Bill Uhlhorn, 2625 Hilyard, stated he is a proponent of the principles of capitalism. He quoted Milton Friedman, a con- servative economist, and stated that free enterprise flourishes when there is the free exchange of knowledge, ideas, and infor- mation. There can only be voluntary contractual agreements when people are free to reason by means of discussion and persuasion with one another, and there can only be a democratic process when people have the information to make good decisions. He stated the second issue which needs to be dealt with is that e 5/5/80--4 .. . the merchants opposing the ordinance will try to hide behind the principles of private property and ownership and will say that government has no right to force freedom of speech on them, and that freedom of speech is secondary to private ownership. In response to those assertions, the councilors should consider that freedom of speech is a right as stated in the Bill of Rights; it is possible to have private enterprise and owner- ship as the dominant form of economic organization, but that does not guarantee political freedom or free speech, although free speech assures the possibility of private enterprise, and by any stretch of the imagination it is difficult to believe that the malls are private property since Webster1s Dictionary states that a mall is "A public area often set with shade trees and designed as a promenade or as a pedestrian walk." It is very possible and proper, therefore, to distinguish between a mall as a public area and a store as a private area. The issue of private property should be considered with the distinction that the stores are private property and should be accorded certain protections and the mall area should be public property. It should be encour- aged to allow the fullest range of free speech. e Leslie Hendrickson, 1036 Adams, said she came to the meeting because she feels strongly about the difficulty of preserving free speech. Large malls are central business districts. These malls are accessible to large groups of people and diverse activities. Malls are not accessible to the public because of the large parking spaces around them. Shopping center malls enjoy privileges which the downtown business district does not. Valley River Center was built with substantial amounts of public monies. Roads and sewers were provided to them, and the public and the City government have a sense of ownersh ip in them. All bus inesses and private property should be protected from dangerous and harmful people, but this was not the case in the Kokis case. There was no evidence to show that she was harmful or dangerous. She feels that passage of this ordinance would show that free speech is not for sale in the City of Eugene. Margaret Kehrer, 110 Mayfair, works for a non-profit agency for public education regarding food and agriculture. There are people in the business of public education and access is important for this education to continue. It is important for vendors of food as well as for vendors of ideas. She is in support of the amendment in concept. She;s worried, how- ever, about the designated space being unusable and also about who would be making the decisions regarding what activities and what people would be admitted and who would be denied. She feels review of the application process is important. . 5/5/80--5 An unidentified man stated that if it were not for free speech, 4It the councilors would not be on the dais, and the people would . not be in the audience. Paul Harrison, 400 East 32nd, stated he was aware of the Kokis case, but feels the issue is the vitality of society which relies on the ability of people to get their ideas across to inform each other of opinions. He thinks the proposed ordinance is flawed in some ways and could not be applied as broadly as would be desirable. Glenn Gordon, 1136 East 20th, stated he is in favor of the ordi- nance because he felt there was a great deal of censorship being put on the Kokis case as to who would be allowed to display their wares and their ideas and who would not. If the mall is to be used to attract people, then it is a matter of censorship if they are denied certain issues or events. At Valley River Center, double standards are being applied. Either everyone should be allowed to speak or no one should, not just a select few. Marylee Cook, 1570 Tyler, No.6, asked if the old common law of use could be put into effect here such as when people use a pri- vate road or path and after common usage it becomes a public road or path. Don Chalmers, 2500 sprinr Boulevard, said it seems that there is a developing situation 0 deflning public and private sectors. These terms are beginning to be redefined. There comes a time when private property takes on such an impact that it becomes quasi-public property. He gave an example of company-owned towns which were required to provide a certain area for free speech. He asked if private individuals could hold private prop- erty which has very large public impact. The right to speak should be allowed in areas that have this kind of impact. Speaking against the ordinance: LaVerne Edwards, 1260,President, stated that she is for free speech but not to the point that it would infringe on the rights of others. She stated that in previous experiences with events at Valley River Center, the guidelines were worked out by both sides., They were not directed from the management. Because there would be a Constitutional problem if the State law would still be in effect, there would be enforcement problems. She would like to suggest having a speakers' bureau in the park blocks downtown. Cynthia Kokis, 2465 Jefferson, commended the council for their contlnued support of free speech. It is important for low-income 5/5/80--6 e e . groups or grass-roots groups to be able to talk with the people. She noted that California has denoted malls as public places. The public has paid for these places with road development, water and sewer lines, and with social costs. She stated that she does not see this as being a private property issue. She sees it as a public place. She agreed with Mr. Hanson that some Valley River customers might not want to hear what people have to say, that they would be more interested in shopping for material things. If people speaking are confined to a small space, the risk is run that people may not find the area or that they may not be heard. They should be free to move around since it is a moving area. She further stated that this is a public area. She noted that in the Eulene Refister-GUard it was stated that this should not be passed or phi osophicaT reasons. Mr. Wayne Shields, developer of Valley River Center, stated on August 4, 1969, "0ur main objective is not to make it a sales center, but a civic center." Mr. Hanson stated that the purpose of the mall is to attract customers. The developers have said one thing and the owners say another. It is her belief that they will say whatever' works. e Jess Scott, 2660 Cheryl, stated that he does not believe in free speech at the expense of the rights of others. Business owners should not have to provide a space for everyone who comes along. Vernon Gleaves, 975 Oak Street, attorney for Valley River Center, stated he had distributed comments to the councilors. He stated that he is in favor of free speech but not free speech in a vacuum. What is being discussed is free speech at the expense of property owners. The proposed amendment would affect private property rights in violation of the United States and Oregon constitutions as presently interpreted by the US Supreme Court and the Oregon Supreme Court. The State of Oregon has definitive case law that spells out the right of persons to use private property. Justice Denacke concurred with the Lloyd case, stating that private property rights are protected by the Oregon law of property, particularly the property law that provides that a property owner has the right to be free from trespassers. He indicated that the invitation by property owners to the public to shop on premises did not sufficiently alter the character of the property so as to deprive property owners of rights under State property law to oust persons they do not want on the premises, although such persons came on the property endeavoring to exercise First Amendment rights. The memo distributed by City staff does not contain any citation of authority. He does not believe that any such authority exists. The California case of Robins vs. Prune- yard Shopping Center held by a 4-3 vote that the State Constitution , - 5/5/80--7 rights prevailed; a shopping center could not deny access ~ to persons circulating petitions against the government of a ~ foreign nation because the freedom of petition against griev- ances was guaranteed by the California Constitution. The case is on appeal. The Supreme Court has agreed to review it. Mr. Gleaves feels the council should await the outcome of that decision to determine whether they may purport to enforce greater rights to its citizens than are granted by the United States Constitution. The City cannot, by amendment to its ordinance, convert private property to pub 1 i c property. An ord i nance must apply equal protection for everyone. The City could repeal its trespass ordinance, but if it is going to have one, it needs to be uniform. He suggested that this is a "buy," exchanging square footage for police protection. Mr. Gleaves stated a municipality cannot enact legislation making lawful conduct which the State has denounced as a crime. Trespass is a second-degree crime under State law and the council cannot remove that. Mr. Gleaves stated he would like to know how the footage limits were arrived at. He stated the only limitation is that mechanical amplification cannot be used; this would allow people to yell or scream. Obscenities could be used, disturbances could be created, or people could chant. He submitted there is no rational thinking behind this ordinance. If there is a right of free speech within that mall; it is a Constitutional right, not one that the City Council can regulate. Freedom of speech exists for property owners as well as non-property owners. There is no legal precedent for the proposed ~ amendment. This is not a policy or political decision to be ~ made at the whim of the council because the council does not have that power. The City of Eugene has many public places where people can exercise their right of free speech. The coun- cil, by this proposed amendment, cannot withdraw police protec- tion for Valley River Center or avoid involvement of Eugene police personnel. Eugene police must enforce State law within the City of Eugene. If the amendment should pass, Valley River Center would expect Eugene police to respond when any person violates the State's trespass laws. Should police officers refuse to make an arrest of any person violating State law, any citizen has the right to make acitizen's arrest, and the Eugene police must take the person into custody if the offense requires it. This amendment would involve Eugene police and contribute to confusion and disorder. He further stated he feels the proposed amendment is morally wrong and that there is no public need for the ordinance and especially not for any emergency clause. He stated that in an election year, he felt it might be politically expedient for some to try to provide a platform for candidates seeking public office, but the use of private property cannot be limited to that particular purpose even if the power :. 5/5/80--8 . would exist to require a public forum for exercise of rights of free speech. Mr. Gleaves asked that the council consider the following issues: (1) The state of the law in the United States and the State of Oregon is contrary to the purpose sought to be achieved by this amendment; (2) Consider the amount of public interest in this issue; (3) Consider what it will cost the taxpayers of the City of Eugene to have the issue examined, involved in litigation, and be obliged to pay compensation for the conversion of private prop- erty to public use; and (4) At the very least, await the outcome of the Pruneyard case for a determination of whether there might be the power to enact this type of amendment. e Jan Hosmer, 1685 Rosie Turn, represents Kaufman Brothers at Valley River. They, as well as their customers, like the con- trolled atmosphere. She is in favor of free speech, as well as for the rights of property owners. She feels they have an interest in the common area of Valley River as well as in the shop space which they rent. They share in the upkeep and maintenance of Valley River Center and feel it does not relate to how business in downtown Eugene is conducted. She feels that if this ordinance is passed it will infringe upon the customers' rights to shop. Cliff Anderson, 5200 SW Macadam, Portland, Oregon, from Giverts, Gregg, and Associates, stated their firm had done a survey of the marketplace to see if management policies at Valley River are supported by the public. They conducted a random telephone sampling of shoppers in the Eugene-Springfield area. Four hundred one interviews were conducted, with 249 of the interviewees Eugene-Springfield area residents. The results show that cus- tomers prefer to shop in a place which keeps away those who distribute literature and petitions and where their personal safety is not endangered. The majority of all interviewed felt that Valley River was a safe place to shop. He feels that activities such as speech making and literature distribution could possibly have a negative impact on Valley'River Center. Don Crawley, 3693 Wilshire Lane, stated they are not opposed to free speech, only to this concept. Their company chose Valley River since it is a private mall and feels that some of its rights will be abused if this ordinance passes. He does not feel this ordinance will work if it is passed. He stated he agrees with - 5/5/80--9 Mr. Gleaves that a decision on this ordinance should be postponed 4It until the Robins vs. Pruneyard case has been decided because the Council may be spinning its wheels. He also feels the ordinance is vague since it says there is no amplified sound allowed but nothing is stipulated about shouting, chanting, or yelling. There is also nothing stipulated in the ordinance about who decides what is commercial or non-commercial. He thinks the ordinance would hurt those who have businesses at Valley River Center. Doug McKay, 450 Stonegate Street, representing Oakway Mall, stated all the concerns expressed so far seem to be regarding a regional center (Valley River), not oriented to a neighborhood center like the Oakway Mall, which is a convenience center. He does not feel the free speech area is needed, but if it is needed, it would be more needed in a regional center than in a convenience center, and it is not needed at Oakway Mall. He feels the size definitions were arbitrary. Oakway Mall has neighborhood competition in other stores which offer the same services but because Oakway Mall IS shops are in an enclosed mall they are subject to this proposed ordinance. He noted that Edgewood Center, the Atrium, Centre Court, and 5th Street Market should also fall under this ordinance if passed. All of the merchants in the Oakway Mall and over 400 of their customers are opposed to the idea of having a free speech area at Oakway Mall. He also noted concern with the emergency clause and felt that if they would be expected to create a free speech area they should be given reasonable ~ time in which to implement it. _ Mary Merrill, 850 East 20th, is a merchant at Oakway Mall who uses space in front of her store for display. The mall area at Oakway Mall is very small. If they were to designate a free speech area, it would have to be in front of several stores. She stated that areas in parking lots could be designated as free speech areas. Richard Hansen, 2744 Tomahawk Lane, Manager of Valley River Center, stated he agrees with Ms. Kokis that it is extremely difficult to restrict people to a certain area with their activities. Cus- tomers and tourists are thankful that Valley River Center exists. He stated it was unfortunate that the proposed amendment had been changed from 50,000 square feet to 10,000 square feet and now encompasses centers like the Oakway Mall, the Atrium, and the Citizens Bank Building. Valley River Center is a privately owned property. They paid for the property although part of the streets and sewers were provided. They built one road which they gave to Lane County and paid for widening of another street. He stated he does not try to have difficult rules for people to . 5/5/80--10 e follow for events to occur at Valley River Center. In 1979, Valley River Center paid over $1,200,000 in taxes, of which over $300,000 was paid to the City of Eugene. If the budget proposal for 1980-81 passes, they will be asked to pay an addi- tional $80,000 this year. They have been supporting this year's budget proposal but might not if this ordinance passes. They have an enclosed mall with a hard-surface floor and if there is music in the building then it's difficult to conduct business in the shops. If the Ku Klux Klan or the Revolutionary Young People would want to come in, if the ordinance were passed, they would have to be allowed. He stated that Resolution 2015 restricts activity within the Council Chamber, but now they are asking Valley River Center tenants to forgo their business needs. There were 17 people who wished to testify at the end of the specified time limit. Those names read into the record in oppo- sition were: Charles Grey, Paul Hoven, Gerry Bowden, Wayne Lawless, Larry Palmer, Wayne Lewin, Brent Barraclough, Dan Snook, Richard Skeie, Andrew Collins, William Rankin, Agnes Leister, Louis Perkins, and Einar Skoubo. Public hearing was closed. e Mr. Delay stated that a lot of discussion had been about dis- ruptions and he asked for clarification as to whether those activities would be still able to be enforced under other sections of the City Code. Mr. Long stated that rules can be adopted by the managers of shopping centers and additionally there has been no change proposed for any of the ordinances which reg- ulate conduct. Ms. Miller then asked for clarification as to how many councilors would need to vote in favor of the amendment for it to be passed on an emergency basis. Mr. Long responded that six members of the council would need to approve it. If the measure would be passed by five or other sufficient number to pass the ordinance, it would still be approved but the emergency clause would not be enacted. The ordinance would then be in effect 30 days after the Mayor signs it and would be subject to referendum. Mr. Obie asked what the limitations would be regarding the place- ' ment of the free speech area. Mr. Long responded that the free speech area according to the proposed ordinance would be one percent of the gross floor area of the mall area. Mr. Obie asked if it could be a painted stripe on the floor. Mr. Long responded they had not attempted to define this. Mr. Obie . 5/5/80--11 asked how this decision for the location of the free speech ~ area would be made. Mr. Long responded it would be by the .., owner of the shopping center. Mr. Obie asked if they could enclose the free speech area. Mr. Long stated that they probably could do that but that would undoubtedly cause the matter to come back before the council. Mr. Obie asked if the ordinance could be written better to address this matter. Mr. Long responded if the owners select the option of creating a free speech area, they assume the area would be created in good faith. If they did not, the City would engage in detail work to prevent this kind of occurrence. Ms. Smith asked, if this ordinance were passed and then legally chall- enged, what type of litigation could occur and what approx- imate costs would be involved. Mr. Long replied that this kind of case is the kind that attracts attention of the courts. This could be held before a circuit court, State court, court of appeals, Oregon Supreme Court, on into the Federal system of District Court, Circuit Court of Appeals, and Supreme Court, or possibly directly to the Supreme Court. This would be very expensive and rough figures for State court would be $10,000 and up and for Federal court $50,000 and up. Ms. Schue asked what the free speech might consist of and what regulations management might reasonably impose. Mr. Long responded that the management would have the right to ~ determine priorities for use and to schedule groups but pri- .., marily the conduct that would be allowed would be the same sort that is allowed on a public street. Mr. Obie stated his understanding of the non-commercial distribution was that there could be no solicitation of goods or services. He asked if solicitation of a boycott for goods sold within a shopping center would be permitted. Mr. Long responded that that would be possible. Mr. Delay asked how this would affect office buildings, for example, Citizens Bank Building. Mr. Long responded he did not think the Citizens Bank Building had enough common area and according to the Planning Department, neither did the Atrium. Mr. Delay asked about the common use law that had been mentioned. Mr. Long responded that this is known as adverse possession and it would not be possible in this instance because the people are there with the owners' per- mission. . 5/5/80--12 e e CB 2107--An ordinance concerning defense to trespass; amending Section 4.805 of the Eugene Code, 1971; and declaring an emergency. Mr. Lieuallenmoved, seconded by Ms. Miller, that the bill be approved and given final passage. Ms. Miller stated there had been quite a bit of discussion as to what would happen if people did not operate in good faith and stated she does not feel that this is anything but a first step regarding free speech. She thinks this ordinance can be improved. She has extended an invitation to any interested parties to discuss potential improvements or problems. She feels that the shopping center management will provide reasonable access for free speech as well as reasonable passage for those desiring only to shop. This is a basic Constitutional issue. Shopping centers surrounding by large parking lots are the equivalent of a downtown area designed to be held open to the public. Discrimination cannot be made on the basis of race, sex, age, etc. Even though these centers are private property, they are places of public accommodation. They fulfill a very important public function. Historically, people used town commons or general stores as places to exchange ideas, and now, rather than people being downtown, many of them are. at shopping centers. The Eugene community has a very healthy political spirit of debate and she feels that that is very important for people governing themselves. She strongly supports the ordinance. They are only talking about large shopping center areas because of the large numbers of people that are attracted to large shopping centers. These centers have lots of public money involved. She feels that it is important that political statements of all kinds be allowed to have access. She does not feel the fiscal resources of the City should be directed at this type of activity. She realizes there is a good chance that management of the centers will still call in the Eugene Police Department to prosecute trespass charges under the State law, but the City Code can be amended to say that the City does not intend to use its financial resources to prosecute this kind of situation. Councilor Lieuallen indicated this his motion is to include adop- tion of the legislative findings. Mr. Delay stated the legislative findings alluded to the fact that downtown businesses do not suffer from having free speech areas near them and operation of shopping centers will not be harmed by this either. In fact, because shoppers would be more e 5/5/80--13 likely to stay longer, revenues could be increased. He stated he ~ wished more could be done to encourage First Amendment rights. ~ Mr. Hansen is not the cause of this problem; it is an evolution of public law and a general problem. At the present, arbitrary censorship can be used in these malls. Public resources are not going to be used to inhibit free speech. Until some better solutions are available, we must do the best we can to protect the rights to exchange ideas. He feels this is a modest step in laying groundwork for further work. He feels there will be good compli- ance. Mr. Obie stated that he can respect the ideals which brought this ordinance before the council. Free speech and other freedoms must be safeguarded. He further stated he cannot respect the fact that because Ms. Miller wanted, before the election, to have everyone announce his/her position, that that is why the council met tonight. He abhors using these chambers as a political playground. He cannot allow himself to participate in this farce. He further stated he could not respect Cynthia Kokis for denying others time to speak by stating she was speaking against the ordinance when indeed she was promoting it. The issue is not a simple one. Private property and free speech are the conflicting issues. The Supreme Court and other courts are charged with upholding the United States Constitution. This responsibility should be left to the courts rather 'than to the City Council. The council should not try to circumvent existing laws. There are people who want protection from dissemination of information and e they should be protected just as those who wish to speak should be protected. He will oppose this tonight and in the future. Mr. Delay stated that the council is not creating a regulatory mechanism nor circumventing existing laws, but rather creating incentives to protect First Amendment rights. Ms. Smith stated she shares Mr. Obie's concerns and does not feel this is the appropriate process for this issue. She does, however, appreciate people coming to let the councilors know their feelings. She will vote against the motion. Roll call vote; motion carried four to two with Councilors Smith and Obie voting no and Councilors Delay, Lieuallen, Miller, and Schue voting aye. B. Proposal to Prohibit Smoking in Certain Areas (memorandum distributed) L Mr. Henry stated this is being sponsored by Councilor Schue. There are 14'different groups of areas in the proposal in which e 5/5/80--14 e smoking would be prohibited. The hearing is to establish guidelines as to whether an ordinance should be produced. The areas being discussed are: 1. All elevators accessible to the public. 2. All engaged taxicabs and regular common carriers, including scheduled motor buses and school buses, except special or char- tered buses for private hire. 3. All waiting rooms in bus, train, and airport facilities, except a designated area set aside for smoking not to exceed 50 percent of the seating area, provided the existing physical barriers and ventilation systems are used to minimize the toxic effect of smoke in adjacent nonsmoking areas. e 4. All indoor theaters, libraries, museums, auditoriums, and concert halls (except on stage when part of a theatrical performance) whenever open to the public, except smoking is allowed in any area commonly referred to as a lobby if physically separated from the spectator area and not otherwise prohibited by law. 5. All school buildings, except in certain areas of employee lounges not to exceed 50 percent of the lounge areas, provided existing physical barriers and ventilation systems are used to minimize the toxic effect of smoke in adjacent nonsmoking areas, and in private offices occupied exclusively by smokers even though such offices may be visited by nonsmokers. 6. All retail stores, except tobacco shops, areas in retail stores devoted exclusively to the sale of tobacco products, beauty salons and barber shops, rest rooms, employee lounges and private offices in said retail stores, unless otherwise prohibited by law. 7. All waiting rooms or public hallways of every public or private health care facility, including, but not limited to, hospitals and doctors' offices, except a separate waiting room may be established for smokers as long as there exists a waiting room in the same facility in which smoking is prohibited. 8. All meeting conference rooms and assembly halls in which ten or more persons gather for educational, business, professional, union, recreational, or political purposes, unless all persons present consent to waive this no-smoking requirement, except for any place being used for private social functions, or in separate areas designated by the owner or person in charge of such rooms. e 5/5/80--15 9. All indoor work places, except in private offices occupied exclus- ively by smokers even though such offices may be visited by 4It nonsmokers. The employer may designate work areas where smoking is permitted, provided existing physical barriers and ventilation systems are used to minimize the toxic effect of smoke on adjacent nonsmoking areas. 10. All meeting rooms during public meetings under the control of the Eugene City Council, or of any commission, committee, or body established by the Eugene City Council. 11. All indoor service areas and waiting areas of financial institutions, government, business, and professional offices, including, but not limited to, the waiting areas of attorneys, engineers, architects, realtors, brokers, consultants, and veterinarians. 12. All self-service laundry facilities. 13. All restaurants serving food to the public in rooms having an occupied capacity of 50 or more persons, except that a smoking area may be designated as long as adequate nonsmoking areas are provided to satisfy customer demand. Existing physical barriers and ventilating systems shall be used to minimize the toxic effect of smoke in adjacent nonsmoking areas. Ashtrays, cigarette machines, and other smoking paraphernalia shall not be placed in nonsmoking areas. Taverns, bars, and cocktail lounges are excluded from these smoking prohibitions. e 14. All retail food stores which are designed and arranged to display and sell food products for consumption off the premises by the public, except an employee smoking area may be designated by the management as long as the area is properly ventilated and is segregated from both the areas in which food is handled and the areas used by shoppers. This is a series of comprehensive proposals derived from ordinances from various cities. Ms. Schue stated this is a working paper and there may be changes, additions, or deletions. Ms. Smith noted no action would be taken on this matter tonight. Ms. Smith opened public hearing. Speaking in favor of the proposals: Glen Gordon, 1136 East 20th Avenue, stated he is in favor of the concept. He is a physlcian who takes care of patients who suffer from the effects of smokers. Smoking causes diseases which are costly to the patient and to the public. Smokers indiscriminately damage those who don't smoke. In regard to . 5/5/80--16 , . e the May 4 editorial in the Eugene Register-Guard, the attack on Ms. Schue, he feels that not to pass this because it will be costly to enforce is not a valid reason. If the, council passes this it will be taking a stand that smoking is detrimental and setting a standard for raising the level of consciousness. John Minor, 3850 Vine Maple, an allergist, stated there was a good article in the New England Journal of Medicine dated March 27, 1980. This article stated that there is an injurious effect on pulmonary functions for those who don't smoke and are in a work environment with those who do. He feels it is essential that these proposals involve the working place as well as non-work places. The non-smoker needs the right to tell smokers not to smoke. With this kind of law, it would be self-policed. . Albert Zarth, 4315 Hilyard Street, stated that the ordinance would not be against smokers but against the activity of smoking. Licenses and rules have been used for regulating all kinds of activities and they could regulate smoking as well. Peoples' rights to activities stop when someone else's needs begin. This would ensure people the right to breathe. Ray Gilden, 170 East 37th Avenue, read a letter he wrote to his employer after a smoking ban had been implemented in his work place. Petitions had been passed and it was only when they were told that the employer would be financially responsible for any damage caused by smoking that the ban was implemented. Krai~ Jacobson, 2500 Chuckanut, an allergist, referred to the same New n land Jo rnal of Medicine article as Dr. Minor. This article state t at non-sma ers expose to passive smoking suffered significant decrease in lung function. Passive smoking is a more direct irritant to the asthmatics which he and his partner take care of than to the average person. Karen DuPriest, 225 Dartmoor Drive, faces this every day. The quality of life is something the State of Oregon and the City of Eugene have been working on. Since 1963, when she came to Eugene, she has seen bike riders taken into account. If this proposal would become a law, it would add to the quality of life. Pregnant women and people under the age of 18, who are not legally allowed to smoke, are subjected to passive smoke. Some may say that this is an infringement of a person's rights to smoke but she views it as a health hazard and feels that smokers infringe on her right to breathe. In times past, miners took canaries into coal mines with them so that when the oxygen was getting in too short supply, the canary would die, signal ing the miners, to go back above ground. She likened herself to that canary. She is not asking that smoking be eliminated, but controlled. , 5/5/80--17 Michael Cross, 1125 North 58th, Sprin field, stated that guide- 1nes or au os 1n 1n ustry to protec people from harmful fumes have been implemented and the same should be done for smoking. In regard to the National Lung Association handout, sidestream smoke is twice as harmful as smoke inhaled directly by the smoker which is filtered. Field burning is a minor annoyance in com- parison with cigarette smoke. Joyce Owen, 2830 Emerald, Association for Non-Smokers Rights, stated that, based on the same New England Journal of Medicine article, passive smoke in a work environment is the most harmful and most easily eliminated work hazard. Lobbies, employee lounges, and rest rooms should not be used as smoking areas. They also feel that all non-smokers should be protected, not just those in groups of ten or more. They are concerned about jury rooms, barber shops, and beauty salons. Non-smokers are barred from places which allow smoking just as handicapped people in wheel- chairs are barred from places which do not have ramps. Last year, the council endorsed a measure that was before the State Legisla- ture which is similar to this proposal. Many health agencies support this proposal. On the statewide initiative petition they have collected nearly 14,000 signatures. Although the tobacco industry spendS a great deal of money each year, the Eu~ene Register-Guard allows these death-pushers to advertise 1n its newspaper. Citizens of Utah and Minnesota claim a no-smoking ordinance works well in their communities. She submitted a letter from a man from Minnesota to the councilors for consideration. In other areas, these laws are enforced by the people who are affeced by them, rather than by the police. Marylee Cook, 1570 Tyler, No.6, has had pneumonia five times as well as heart trouble. Smoking makes her heart flutter. Busi- nesses which change their rules and restrict smoking find their cleaning bills are less. Speaking against the proposals: Bill Eynon, ~685 Chad Drive, stated that people who smoke do not deliberately try to bother those who do not. Smoking regulations have become more and more restrictive. He agrees that smoking should not be allowed on buses, but feels that smoking should be allowed in hallways, although not in closed rooms. When he wants medical advice, he goes to the doctor rather than having the doctor come to him to tell him that smoking is bad for him. Most smokers will not smoke if they are nicely asked to stop; they only take offense when they are asked rudely. 5/5/80--18 e. ~ e . . - Mr. Obie stated he thinks it is becoming increasingly evident that those who do not smoke need to be protected from smokers for health reasons. He thinks it is acceptable for the council to establish standards regulating smoking, but thinks it will be difficult to enforce. He appreciates the research that Ms. Schue has had done. He said he agrees with no-smoking in elevators and on Lane Transit District buses, but some buses are like airplanes and smoking could be allowed. He felt smoking in taxicabs should be left up to the cab driver. In lobbies of theaters, perhaps smoking could be confined to a smoking area rather than to the lobby. He agrees there should be no smoking in school buildings. In regard to retail stores, he feels input should be considered from the management, the employees', and the customers' points of view. He agrees with no smoking in waiting rooms as well as health care facilities. He stated he doubted that a standard would be able to be established for conference rooms and that he has a problem with laws being created which would be ignored and cause the entire system to break down. He supports the other areas to varying degrees. Ms. Miller stated she understands that smoking is illegal, or else people think it is, on common carriers such as Greyhound buses. She questioned whether school buildings would include the University or other institutions of higher learning and agrees that in regard to retail stores, Mr. Obie's concerns are a good ones. She thinks it is a very good set of proposals. e She asked for clarification as to whether a decision was to be reached tonight. Ms. Smith stated it is to be a discussion and a chance to air concerns in regard to a future ordinance. Ms. Schue moved to adopt this paper as a foundation for a future ordinance. Mr. Lieuallen seconded the motion. Mr. Lieuallen indicated his support fur the proposal. Mr. Henry stated he had never smoked, but does have some concerns about some of the more sweeping provisions of the proposal; e.g., the University of Oregon. He thinks it would be good to have rep- resentatives from institutions of higher learning, merchants, etc., provide input on this proposal. He stated from what he under- stands in other cities, enforcement is not done by police, but rather by health inspectors, which the City of Eugene does not have. He feels that the term "school buildings" needs to be redefined. He suggested working on this proposal more and coming back in a month with a specific ordinance. ~ 5/5/80--19 e e e Mr. Delay stated that he generally supports the position paper, but feels some of the questions raised are in regard to conceptual situations and feels more work needs to be done. He suggested that perhaps Ms. Schue could continue to work with staff and come up with an interim report before the ordinance is drafted for the council to consider. He feels this should be approved in concept. Ms. Miller stated she also would like to see an interim report which would more closely resemble an ordinance. ,Ms. Smith stated that she also supports the paper in concept. Her main concern is implementation of the ordinance without financial strain on the City of Eugene. She supports the recommendation that an interim report be brought back. Ms. Schue stated she had never conceived that the Police Department would be enforcing this. Roll call vote; motion carried unanimously. The meeting was adjourned to May 7, 1980. Respectfully submitted, ~J~. Charles T. Henry ~ City Manager (Recorded by Lynda Nelson) CTH:LN:slb/CM7bl 5/5/80--20