[0:00] Aye, aye, aye, aye, aye.

[0:09] Recording in progress.

[0:15] Aye, aye, aye,

[0:21] aye.

[0:41] Yeah, I don't see her. Yeah,

[1:01] open it.

[1:32] I still don't see her.

[1:35] I guess.

[1:38] So you can just choose my next question.

[1:41] Okay.

[1:42] He's, what do you mean everyone,

[1:44] it is Thursday, June 13, 2004,

[1:47] time is 5.33 pm.

[1:50] This is a special meeting of the City of Council

[1:53] of the City of Central.

[1:55] If we can have a roll call please, Ms. Reba.

[1:58] Mayor Faye.

[2:00] Mayor Protin Tannucci, Alderman Aiken,

[2:03] Alderman Enlow, here.

[2:05] Alderman Williams.

[2:06] Here?

[2:08] Okay. Kara is trying to join us, but she just sent me an error message that she's got to update her zoom, so she'll be here soon.

[2:17] Okay.

[2:18] Please join me in the question.

[2:22] I pledge allegiance to the flag of the United States of America,

[2:26] and to the republic for which it stands,

[2:29] one nation under God, indivisible,

[2:32] with liberty and justice for all of us.

[2:39] I assume not that any proposed adjustments

[2:43] to the agenda.

[2:50] Next we have a conflict of interest,

[2:52] and it was brought up in our recent meeting

[2:54] by Mr. Garogi that perhaps I should recuse myself

[2:58] from even these executive sessions

[3:00] that we are having in this regard,

[3:02] and my understanding from our council is that

[3:08] there would not be any reason,

[3:10] even if there is a reason further down

[3:16] for a vote to declare anything

[3:18] that you think we should move ahead

[3:20] with the executive sessions, I correct.

[3:22] So it is going to be ultimately up to you whether, if you believe there's a conflict of interest,

[3:27] legally, the conflict of interest comes in to play when there's a financial gain or something

[3:32] like that on an application. Here, what we're talking about is a legislative change. It's going to

[3:38] be city-wide changes not affecting just one person. It's going to be affecting an entire city.

[3:45] So under that first conflict of interest, if there's not going to be a financial gain or you're not

[3:52] And you know, have a special connection to the city at large of the sexually oriented businesses.

[3:58] I don't believe legally you would be mandated to repeat yourself.

[4:04] Okay, so my opinion on it is that the conversation will be served by being in it.

[4:11] The council, but I'm not really, I'm not in the other opinion that anything I would say,

[4:24] would change the outcome.

[4:26] We're not voting, I think there's no decision

[4:28] as being made in the executive session.

[4:31] But I'm willing to share from you guys

[4:32] what you guys think about it.

[4:35] I mean, I'm not, I think there's a conflict

[4:39] for going into the executive session.

[4:41] Yeah, we're going to be in just a separate recording.

[4:43] Recording stopped.

[4:47] I'm going to start.

[4:52] Let's just, is it recording that?

[4:54] Oh, I'm recording here too.

[4:57] Sorry, let me go ahead.

[5:00] I'm here.

[5:02] It won't be showing the camera.

[5:04] But I think at this stage, Jeremy, you and I will have some serious discussions.

[5:13] So

[5:16] much ourselves, you, I, if I were to stand with things, because we've been a few things in the paper, and now it is public.

[5:24] I might have to refuse myself because I could be against our CI because of Joseph's, my husband's termination.

[5:31] But I don't think that is the meeting we're here for.

[5:37] And if you all agree with me, I think Jeremy and I can both stay.

[5:41] And then comes time when we have to go, and that's when we do, we reduce ourselves.

[5:53] Garrett, I mean, just, just, well, actually, Jeff, we're starting to talk to go ahead and finish up your thoughts.

[6:01] I just, specifically, what Karla brought up, so to like, I mean, we should, I don't see why we should go in the executive session when it was a conference dealing with,

[6:13] what we're dealing with and I think I don't know why is all this stuff that we talked about

[6:23] and we're going to be able to bring this out in public because I don't see much there

[6:27] that it wasn't discussed.

[6:29] Sure.

[6:30] So I think my presentation will be something that I think can be said out loud.

[6:34] I think the benefit of being an attorney and having an attorney client for which is a

[6:38] frank discussion of questions you might have but you might not, you might not actually

[6:42] understands the implications of.

[6:44] So that's what the executive session will be.

[6:46] It will be questions relating to my presentation.

[6:51] I think that it would be beneficial to have an executive session.

[6:54] I'm finding the standards to review in front of everyone.

[6:57] That's not, it's very straightforward law.

[6:59] So I think it's pretty, that should be in there.

[7:01] But I think if we're going to have a frank discussion of,

[7:03] well, is this legal, what if we want to do this?

[7:05] Would that be legal?

[7:06] That should be an executive session.

[7:10] For my legal opinion, I would feel

[7:11] I don't know how to give legal advice to an existing session.

[7:14] Obviously, I'm not the decision-maker here, but that's my legal opinion.

[7:18] It would be more comfortable to give attorney-client privilege information and executive session.

[7:23] I have questions that I want to ask an executive session.

[7:32] I'm still discussing what's been suggested by the public that I should reduce myself from an executive session.

[7:41] And it's my understanding, in my opinion,

[7:44] that executive session is to get legal advice on the matter.

[7:50] And if I just believe that I add to consciousness

[7:55] and that I don't take away from the conversation,

[7:57] so if our legal team believes that I should not be

[8:04] the case in myself and that I should be

[8:05] in the executive session, then I'm going to understand.

[8:08] in unless there's a I will default to a vote of if my progressive council

[8:14] disagree with me and and we're not talking about any future votes or anything

[8:19] like that we're just on the phone and it's an executive session if you guys

[8:22] don't think the majority of you guys don't believe that I should be in there all

[8:26] default to your decision but I don't think that that's the the best way for us

[8:31] Let me just finish up whatever it is.

[8:36] Well, I know what I have to do when we were discussing sale.

[8:41] I accuse myself.

[8:43] And I think as long as,

[8:50] do you have a valid reason why?

[8:53] I mean, do we go into executive session and then?

[8:57] I think if we were talking about an application RCI,

[9:00] The question of conflict of interest might be a better, it'd be better suited.

[9:06] But because this is, we're talking about city-wide ordinances and around even talking about,

[9:11] you know, passing an ordinance tonight, it's more supposed to be like, what do I need

[9:15] to consider when I'm making this ordinance or making a decision on ordinance?

[9:19] What are the legal implications of viewing things?

[9:21] I don't see that there's a financial benefit from the mayor and if he believes that he

[9:27] does not have a conflict of interest.

[9:29] That's, from my perspective, legally, I've done my job

[9:33] and I don't believe that there's a reason legally

[9:34] he needs to refuse himself.

[9:37] Mr. Mayor, Council member, if I can't just run into that ad,

[9:42] that will be going to executive session

[9:43] over there for legal advice.

[9:46] And so, there's really not going to be any discussion

[9:49] or ability for council members to persuade the attorney

[9:54] we're providing, you know, the legal guidance.

[9:58] It's really mainly about facts and where we're at.

[10:08] With the, with the air, air, air, air, air,

[10:11] it's continuing to be exactly the same here.

[10:16] Is there any other questions?

[10:17] Thank you, I'd like to be there.

[10:19] Okay.

[10:19] And is there a means for air,

[10:21] to be any kind of, that's what we can remove?

[10:23] Yes, there will be.

[10:24] Okay.

[10:26] Okay.

[10:27] And now we're, now we're gonna do a presentation

[10:31] on what the people overview is.

[10:34] All right.

[10:35] So, it's their way in there, which I just tell you next slide or what you can.

[10:39] Okay, next slide.

[10:41] All right, so briefly on what we're going to go over here, it's not going to be a very

[10:44] big lecture.

[10:45] This is a pretty straightforward issue from a legal perspective.

[10:49] What I'm going to cover today is your current statutory oriented business or SOV regulations.

[10:54] Then I'm going to go into how courts review SOV zoning regulations, and then finally I'll

[11:01] I'll touch on how courts will review a licensee regulation.

[11:04] And the disclaimer, this is not intended

[11:07] to cover the proposed ordinances.

[11:08] I'm not going to give an analysis of what's been proposed

[11:11] or any other suggestions, because those are proposed

[11:14] ordinance that's not necessarily what's going to happen.

[11:16] I'm not going to take questions on hypotheticals,

[11:19] but I'll just give you basically the overview

[11:21] of how this all works.

[11:23] Next slide.

[11:25] And a little bit wider here.

[11:27] Why can't we just ban them all right?

[11:29] Why are we even discussing this?

[11:30] especially oriented business have first-permanent protections.

[11:33] That's been upheld by the U.S. Supreme Court numerous times as involving communications

[11:39] protected by the First Amendment.

[11:41] So, it's that added later.

[11:43] Now, it's for existing code.

[11:45] Where do we allow them currently?

[11:47] Well, technically, under your land use table, 16-3-303, they are allowed in historic downtown

[11:53] gaming, zone or district.

[11:55] like the Gregor Gulf Gaming District and the Terransition Zone on that.

[12:00] Now that Ls are the special provisions that I'll come around the next slide of the additional distance requirements

[12:06] and operation requirements that are applied, but right now those are the districts that they're allowed under.

[12:12] And so now you'll see under this table it says sexually oriented businesses.

[12:19] Right now, that's defined in your code as either being sexually oriented theaters and dancing establishments

[12:25] and sexually oriented retail establishments.

[12:28] That term would include adult coverage, new model studios, adult motels, adult motion pictures,

[12:35] adult theaters, sexual oriented counter centers, and outdoor updates.

[12:39] So I know there's some conversation at the last meeting that we were introducing a whole bunch of new types of SUVs.

[12:47] That's just not true.

[12:48] They were all lumped under this line in the table.

[12:52] So that's currently what it is.

[12:53] All of those are allowed in the historic downtown

[12:56] being the Gregory Golding and Transition

[12:58] and Zones subject to the following predictions.

[13:02] They must have all their activities conducted inside.

[13:06] They must be able to verify the customer's age

[13:09] before they enter the establishment

[13:10] or see anything that's related to the SOE.

[13:14] The interior of the business cannot be visible

[13:16] on the top side of the building.

[13:17] and the business must be located more than 1,000 feet from other SOVs, residential

[13:22] development, dwelling in zone district schools, public parks, shelter places, or

[13:28] drive-go centers and places of assembly. So they have to, they can be in those

[13:31] three zones we talked about if they're complying with those things.

[13:37] In addition

[13:37] to the zoning, you also have criminalization provisions on two of them. 17,

[13:43] 17, 7, 20, and 17, 7, 30.

[13:47] Those criminalized loot and decent behavior

[13:49] and nudity and commercial establishments.

[13:52] While there's, this isn't, you know,

[13:53] it doesn't say sexually oriented business anywhere

[13:55] on those criminal virgins,

[13:56] it essentially means that they can't function

[13:58] in the way that they would normally operate.

[14:00] So this is another provision that basically bans SOBs.

[14:06] All right, so what's been proposed

[14:08] as a general idea is changing your land development code

[14:12] to allow, where we're gonna allow these things.

[14:14] and also to allow our licensing program to better control any SOB that opens.

[14:22] So the first one we'll talk about the zoning regulations.

[14:25] Courts have established a test to see an SOB zoning ordinance as valid under the Constitution.

[14:32] And that asks two questions.

[14:33] One is a narrowly tailored to serve a substantial government interest,

[14:37] and the other one is whether the ordinance allows for a reasonable,

[14:40] alternate avenue of communication. Next slide, please. So the

[14:45] safety of government interest prong is almost always easy to pass because they

[14:49] know there's been numerous studies that SOBs can cause increasing crime, decrease

[14:55] in property values and stuff like that. So that's when you'll see

[15:00] And whenever, whatever, whatever, whatever provision or ordinance we pass, you're going to have a really long whereas recitals, and they're going to say stuff like this, and that's why it's in there to establish that we are serving a substantial government interest in enacting any whatever S.O.V. and zoning regulation we have.

[15:19] This next one is the more tricky one, and this is leaving open reasonable turn of avenues of communication. So under this, as zoning ordinance, the outright bans any S.O.V. from operating.

[15:30] would likely be unconstitutional because it does not leave open other avenues for communication.

[15:36] And this is the current problem with the code.

[15:39] As written under those distance requirements, there's zero places that an SOE can really operate.

[15:46] So that's why we're recommending some change.

[15:49] It doesn't have to be the one that was proposed, but some page probably happened because there's zero places in the city that it could open.

[15:55] Now, there's been other circuit court cases, not federally, not the 10th, which were in

[16:02] that have said that, you know, smaller municipalities can look outside of the city and look at, you know,

[16:08] the county or like, you know, a neighboring community.

[16:11] And that might be a reasonable alternative avenue of communication.

[16:14] But, you know, my job is to assess the risk for you guys illegally.

[16:18] I don't think that we should hold our hat on a district court or a court of appeals case

[16:22] that's not even from our circuit.

[16:23] It's one case, it kind of goes against most of what the case law said.

[16:27] The Supreme Court and other circuits have basically said you need to look within the city for regional avenues.

[16:33] And that's not to say that, you know, the Supreme Court would see it differently now, but to minimize the risk I would recommend changing your land development code to allow SOBs at least somewhere in the city.

[16:47] And then for us like other zone regulations that have been allowed in City of

[16:53] Renton, there is a it was very similar to ours a thousand free for

[16:58] residential and everything but that ordinance left open 5% of the entire land

[17:04] municipality open for SOV's about 520 acres. Another one was just the

[17:09] investment zone only that's that's a pretty common one and then that one that

[17:14] left open 10% of the city city area for operating and then another one is very

[17:19] similar. This is requirements but in that case it did leave open ample room

[17:23] where as ours did not.

[17:27] The important thing though is when you're looking at

[17:30] leaving open areas for S to V's to operate the question is not whether you know an

[17:34] SOV tomorrow could buy property in that area and operate. The Supreme Court and

[17:40] City of Renton basically said SOV operators have to fend for themselves. They

[17:43] have to find a visit, they have to find the space. It doesn't mean that we have to find

[17:46] the space where they can operate. It doesn't mean that that area has to be developed. It

[17:51] just means that technically, if they wanted to, they could buy that property and, you know,

[17:56] with the operation requirements, open an SOB. So again, it does not have to be commercially

[18:01] available space. It just has to be somewhere in the city you allow them.

[18:09] Now for licensing regulations, licensing regulations, because SOBs deal with freedom of speech,

[18:19] the licensing regulations can be considered a version of what's called a prior restraint,

[18:24] which is a regulation the government has that you must get approval before you speak.

[18:28] Prior to transfer, automatically and constitutionally, you can do them, but there is a heavy presumption

[18:34] and that they're in constitutional,

[18:35] so you have to be really careful

[18:36] with how they're drafted.

[18:40] Basically, with prongs that we need to look at,

[18:42] the two things that we need to make sure

[18:44] for a licensing ordinance is that the ordinance

[18:46] cannot vest unbridled discretion in the government's

[18:49] officials, in the government's officials

[18:52] who are charged with responding to or approving

[18:54] the licenses.

[18:58] And two, is that you have to have some kind of time limit

[19:01] on when the decision must be rendered on the license.

[19:04] That's

[19:08] part of allow on limited time so you can't limit so it's it's the one that we had dropped and proposed was 30 days

[19:14] So based on you know, you have to if you file a complete application the city gets 30 days to decide whether or not it's approved

[19:22] Because otherwise if there was an a time limitation you could technically just keep delaying it forever for it for bid to speech and curve the speech

[19:29] And that's courts have held is unconstitutional. So you have to have some type of limit on

[19:34] on when a license can be approved or denied.

[19:39] And thank you. Can you explain the vital discussion

[19:42] a little bit for me?

[19:43] That's a nice question.

[19:45] Next slide.

[19:46] Thank you.

[19:47] Okay, overly broad discretion.

[19:49] So basically what this means is that you can place restrictions on how an SOB operates.

[19:54] You can put hours of operation.

[19:56] You can put added security.

[19:58] You can put how, you know, the stages work and all that kind of stuff.

[20:02] And you can have application requirements that you need to give us your name, you need

[20:06] to give us a fee, you need to give us, you know, your criminal history.

[20:10] But where the unbridled discretion is, is that if you have application requirements and

[20:15] someone meets those application requirements, you can't then say no for some other reason.

[20:19] Basically, if they've given you a complete application, their criminal history is not in violation

[20:23] of what you've set forth and all that stuff, you have to approve.

[20:27] You have to approve it.

[20:28] There's no other way of you saying,

[20:31] I don't really like you even though you've done everything

[20:33] and that we've required of you.

[20:35] I don't want to give you a particular license you can't

[20:37] have to do that.

[20:38] But we can't say,

[20:40] we don't have a keen task.

[20:42] We don't want for us to do something we can't do.

[20:46] So that's probably how it would operate

[20:49] and that'd be something that we would do in the licensing.

[20:51] I have it looked into that particular topic of whether

[20:55] they're like how far we can go with it,

[20:57] mostly what I've been seeing is hours of operation,

[20:59] and stuff like that.

[21:01] But I think it would be,

[21:03] if you have the regulation that applies to all SOVs,

[21:07] it'd probably be okay.

[21:09] It just can't be like, you can't keep moving the goalpost.

[21:14] If you said these are the restrictions we have,

[21:16] this is what we want from you,

[21:17] and they do that, you have to give them the license.

[21:20] So that's how it operates.

[21:21] That's the over-progestation.

[21:22] This may be a little more detailed than we need to get into tonight, but in the theme

[21:29] of what you were just discussing, if we were to regulate and say, you could have the

[21:34] keeny tops, the keeny bottles.

[21:37] But I believe, and I'm not sure if I'm 100% correct on this, the state of Colorado states

[21:43] that cloth dancing would be a pasty in any jeep street.

[21:52] I'm sorry, is there any way that sounds like maybe some of the questions might be better

[21:57] votes for legal advice within my case?

[22:00] Yeah, so this is the kind of stuff that we can discuss, because you raise, I don't have

[22:04] any answer for you right now on that, that's something that we can look into.

[22:09] So, that's the thing that we should take into consideration in executive session, though.

[22:13] Yeah.

[22:14] So you mentioned investigating malfeasance on the part of the applicant prior to the application.

[22:23] Yep.

[22:23] That's been upheld by courts that year.

[22:25] You can investigate.

[22:27] Yeah.

[22:27] It would probably have to be tailored to something relevant to, you know, the operation of the

[22:33] SOB.

[22:34] But there has been, it's been upheld that you can have felony, you know, look, check out felonies.

[22:40] and also just not even for the applicant but employees,

[22:42] that you can say that you can't hire someone

[22:45] who has a felony conviction.

[22:47] That's been upheld, but you can do that.

[22:52] At the time limit, as I was discussing,

[22:54] it's just, you must place a time limit

[22:56] for which the government has to run your decision

[22:58] on the application, whether it's to approve or deny.

[23:01] So it's basically, the one that we propose

[23:04] and will mostly what I see is 30 days.

[23:08] So, it just has to have a time limit.

[23:10] And that's the, as long as you have a period of time where it's in there, I think that

[23:17] that would probably be acceptable.

[23:19] And that's all I have through, that's the basic framework.

[23:22] So I'll definitely entertain questions in executive session about everything we've discussed.

[23:30] Yeah.

[23:33] Sure.

[23:35] And Mr. Mayor, council members, special counsel is in the conference room.

[23:43] I move to go into executive section 2464024B, Colorado revised

[23:50] statutes for the discussion of specific legal questions with the city attorney and city

[23:55] special counsel regarding sexually oriented businesses and the regulation of SOBs in the city's

[24:03] state a new amendment to reduce

[24:03] This can be determined to

[24:06] recondamine the June 13th

[24:08] meeting at the conclusion of

[24:09] the completion of the June 13th

[24:13] ceremony.

[24:15] Second.

[24:17] On favor?

[24:18] On item.

[24:19] On item.

[24:22] We are in effective set now.

[24:24] Thank you.

[24:25] Our service.

[24:26] Now that you've already in section, because you have a

[24:30] known set of sit in in exactly.

[24:32] And you're not in a regular session, or special attention.

[24:36] Now, that would just be averse.

[24:37] Good.

[24:39] My understanding is, I think, validated to a moment ago when you

[24:44] and special counsels upstairs.

[24:47] My understanding for reading the Richard call

[24:49] was that this meeting was to intern a special counsel

[24:53] to go forward with review of the SOBs in the American.

[25:00] Previous meetings, as long as it isn't that.

[25:02] My understanding is that you're going

[25:06] to have to discuss selection of an attorney.

[25:10] No, no, that's not correct.

[25:11] That's what was represented at the Richard call,

[25:14] and that's what a number of times have been said in public that you're reviewing, interviewing, counsel to advise the city to this issue.

[25:27] And that's always said, a constitutional in terms.

[25:30] Never said that.

[25:32] But when I understand it, you're going to have to talk to somebody who's expert in crafting zoning ordinances, back isn't what you need.

[25:40] You need somebody that can look at all of those cases that you just cited in a flash

[25:47] as to their appropriateness, as to their intended purpose, as to how they've been challenged,

[25:55] as to what possible around these there are other than the standard records.

[26:03] I don't know if that's been written or not but that's not.

[26:07] You're not going to hire a councillor or an interview for a councillor from Dell.

[26:14] And what special councillor is going to observe?

[26:17] Given us his legal opinion on these matters as far as what is available for us under our current code,

[26:26] and what is available to us as far as changing code, etc.

[26:30] Who is that special councillor?

[26:31] I'm talking that to you.

[26:33] And you know my opinion is a top I think it's a disaster to be taking advice and I assure you that

[26:39] City Council feels like we're not getting the advice that we need we will seek for their advice.

[26:45] I do want to just mention that in the agenda laid out here it's a discussion of specific legal questions

[26:52] with the City Attorney and the City Special Council regarding sexually oriented businesses and the regulation of those.

[26:59] So let's say you mean about hiring anybody, you're doing anything like that, but just seeking legal advice.

[27:08] Since we have an opportunity, I'm going to have an objection, but there is a clear violation of the section.

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