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Council revamps smoking regulations

Friday, October 31, 2003 by

Supporters of June ordinance disappointed

Austin’s ban on public smoking has been scrapped before ever going into effect. By a vote of 5-2 on Thursday, the City Council approved a series of amendments to the city’s no-smoking ordinance designed to let bar and nightclub patrons continue to smoke at their favorite establishments, as long as those businesses are able to comply with city regulations, display a warning sign and obtain a permit. Council Members Daryl Slusher and Danny Thomas were opposed to the change, while Council Members Brewster McCracken, Jackie Goodman, Raul Alvarez, Betty Dunkerley and Mayor Will Wynn supported it. Wynn, Goodman and Alvarez were on the losing end of a 4-3 vote last summer when the ban was approved. At that time, Alvarez had proposed that stand-alone bars be exempted from the ban. Once McCracken—who promised to help overturn the ban if elected—joined the Council, it was only a matter of time until bar and restaurant owners got what they wanted.(See In Fact Daily, June 6, 2003.)

Supporters of the no-smoking ordinance passed in June of this year called the Council’s decision a major disappointment. “I think that today was a definite defeat in regards to public health for our city,” said Rodney Ahart of the American Cancer Society. “We have rolled back major protections that we secured in our June 5th ordinance. The City Council has taken back a lot of the provisions that would have provided more opportunities for non-smokers in our city to attend live music venues and go to bars. I think that today was purely an example of a shift between public health and politics. Today was a political decision.”

Bar and nightclub owners praised the Council’s decision as a compromise, providing adequate notification to non-smokers and preserving the ability of small businesses to meet the desires of their customers. “We can accept it,” said East Sixth Street Community Association President Bob Woody.“We have a business-minded Council here . . . I’m very happy with what we’ve got. I believe we’ve got a stronger ordinance now than what we did, yet we don’t have a crazy-strong ordinance that we were offered.”

The new ordinance will allow bars and nightclubs to obtain an unrestricted smoking permit, provided the business earns at least 70 percent of its revenue from the sale of alcoholic beverages on-premises. Other business will be able to obtain a restricted permit, allowing smoking between 2:00pm and 6:00am as long as the designated smoking area has a separate ventilation system. In both cases, people less than 18 years old will be prohibited from entering the designated smoking area.

The fee for a business to obtain a smoking permit will be $300, an increase from the $100 proposed in the early versions of the ordinance. That increase came at the urging of Council Member Daryl Slusher. “To me, $100 is too low,” he said. “By saying you’re going to lose money unless people can smoke . . . to me, you’re profiting from people smoking and from secondhand smoke, which has been shown to cause cancer. I would say to make that fee a little bit higher and put that money into some real programs.” But according to state law, the money obtained from a permit fee must be used for education and enforcement related to the activity being regulated.

Dunkerley said she had checked with the Austin-Travis County Health Department about the revenues from a $100 fee, which they estimated at between $75,000 and $100,000 per year. “It seemed to me that would allow them to hire two staff people and have some money left over for advertising and marketing,” she said. “It wasn’t scientific. I think it’s enough to cover education and enforcement.” The Council voted 5-2 to set the fee at $300, with Thomas and Mayor Wynn opposed.

First Monday experiment added to ordinance

Another aspect of the measure designed to appeal to anti-smoking advocates is the requirement for live music venues to offer an average of two hours per week of shows in which smoking is not permitted. A separate provision of the ordinance instructs live music venues to establish one night per week to be smoke-free. Dunkerley championed that provision, which was well received by both bar and nightclub owners and anti-smoking forces. She suggested modeling the smoke-free night after the “First Thursday” celebration sponsored by merchants on South Congress. “We’re willing to try it,” said Woody . He promised to find at least a dozen venues to participate in a “First Monday” program, in which shows on the first Monday night of the month are smoke-free. “If we can show that First Monday generates some interest and business, then I promise it will be an easy sell to get businesses to do it. I think it’s important to do it on a Monday to try it out, and then we can consider moving it to a busier night.”

Woody asked for some time to organize the event, suggesting that it begin in February to allow adequate time for publicity. Anti-smoking groups offered praise for the idea, with the hope that it will expand in the future. “We are very pleased with the ‘First Monday’ issue,” said Ahart. “I think it’s good that the bar owners see that there is a market for people want to go to venues who don’t want to be subjected to second-hand smoke.”

Slusher urged bar owners to do more, noting that the beginning of the work week did not usually draw a crowd at most venues. “We know Monday’s a pretty slow night. I think a better compromise would have been to have a different day of the week, maybe a Friday,” he said, sparking hoots of laughter from the club owners in the audience. “I said compromise,” he responded. “What was passed earlier was a total ban on smoking in bars. To me a compromise more down the middle would to take one night a month that’s a busy night and have that be the night for no smoking.”

While the First Monday event will kick off in February, the rest of the new ordinance will not go into effect for six months, on April 30, 2004. That will allow time for city staff to draft new rules and procedures and to educate the public and business owners about the regulations. In the meantime, the city’s existing ordinance governing smoking in public, passed in 1994, will remain in effect. The new ordinance includes the exemptions for fraternal organizations, bingo parlors and pool halls included in the June ordinance, as well as an exemption for bowling alleys.

TCEQ chief changes stance on sludge farm

Travis County, area residents opposed facility

Opponents of a proposed sludge farm in Southeast Travis County have convinced the Executive Director of the Texas Commission on Environmental Quality (TCEQ) to reverse her decision to allow Cap-Tex, Inc. to operate a sludge facility in the area.

Cap-Tex filed its beneficial use permit three years ago, claiming that it intended to spread sludge on a plot and grow hay. According to a response from Executive Director Margaret Hoffman, the application by Cap-Tex “includes the necessary technical requirements to ensure that the site, if operated according to the terms of the registration, will be protective of human health and the environment.”

Agency attorney Anthony Tatu, who wrote the opinion on Hoffman’s behalf, has written that Cap Tex’s opponents had “raised credible issues relevant to whether the applicant will operate in compliance with the law. Because the Commission may consider this relevant information to determine whether the registration should be issued or denied and because the applicant has a pending application for an individual permit for this site, the Executive Director recommends that the Commission grant the Motions to Overturn.”

When Cap-Tex attorney John Riley addressed Commissioners Court earlier this summer, he called the infractions against Cap-Tex Owner Cary Juby minimal. The District Attorney’s Office had agreed to allow Juby to be on deferred adjudication and pay a $100,000 fine on a charge that Juby knew that the registration permit for his subcontractor, Organic Resources, had expired.

The most substantial issue raised was Cap-Tex’s compliance history, which includes a Notice of Violation that details three violations over the last year, all of which have been resolved. Those violations included failure to keep a 200-foot buffer zone, failure to immediately notify the Executive Director of changes in the source of sewage sludge and failure to obtain a registration prior to applying water treatment sludge on the site.

The Blackland Prairie Concerned Citizens Association and Aqua Water Supply Corp. raised compliance history as an issue to overturn the Cap-Tex permit, pointing out that Cap-Tex and Juby had been the focus of an investigation by the Capital Area Environmental Crimes Task Force, which focuses on illegal dumping allegations. Hoffman noted past violations and concluded the deferred adjudication was part of Juby’s compliance history. She agreed that the compliance history was substantial enough to be considered.

The TCEQ was less sympathetic to issues of technical concerns. Opponents stated the application did not do enough to prevent wastewater contamination. Hoffman, however, wrote that the application met all technical requirements for spreading sludge.

The agency also failed to recognize concerns that the sludge farm would devalue land in the area. Hoffman’s response said that the agency “does not have the statutory authority to consider the issues of property values when reviewing an application.”

Hoffman’s recommendation will go before TCEQ commissioners, at 1pm on Nov. 19. Opponents and Cap-Tex will be given eight minutes apiece to present arguments. Hoffman and the Public Interest Council will each be given five minutes. The meeting will be at TCEQ Headquarters, 12100 Park 35 Circle.

Commercial zoning approved three times

The City Council yesterday had seven zoning cases on the consent agenda, but one of those came back for consideration two more times before the night was over. The property, located at South 1st Street and Stassney, had been zoned single-family but the owner of the property, Fairview Baptists Church and two couples, had agreed to sell the land to Fiesta Mart for a supermarket. The Zoning and Platting Commission had recommended the requested GR-CO and no neighbors appeared to protest the change.

Attorney Richard Suttle, who also represented Wal-Mart, left the meeting after he thought all of his cases were concluded. But Mayor Pro Tem Jackie Goodman, who made the motion to approve the consent agenda, had second thoughts about the matter. She brought the item up again and moved to zone the property LR (local retail), which would still allow for a grocery store. She pointed out that the intersection also has an abandoned grocery building, once an HEB, and at Stassney and Manchaca there is an empty store previously operated by Albertson’s. “The area obviously needs a grocery store. But the trend seems to be to build a grocery store and then when you no longer need it to leave it empty.” At the new site, the grocer asks for commercial zoning, which, if granted, contributes to the decline of the single-family neighborhood. “What that also does is strip out corridors. South First is still able to have commercial together with a majority of residences along that street . . . Once you start stripping with intense zoning like GR,” it has a domino effect, she said.

Goodman’s motion died for lack of a second. Council Member Brewster McCracken then moved for GR-CO. Council Member Daryl Slusher, who lives in South Austin near the intersection as does Goodman, said he would vote for it but wanted only first reading consideration. So, the Council approved the matter on first reading, with Goodman opposed.

When Suttle was notified by phone that his case had been reconsidered, he and one of the property owners came back to the Council chamber to try for a third vote. Suttle told In Fact Daily that Fiesta had until today to decide whether to move forward with the purchase. They had put down earnest money and would be in jeopardy of losing it if the zoning change did not win final approval. Goodman could not bring up the matter again because she voted against the second motion for GR zoning, so Slusher was asked to move for reconsideration once more. He did so and Council Member Danny Thomas moved approval on all three readings. The final vote was 7-0.

The other matters approved on consent included three historic houses: Walker-Stiles House at 508 Harris Avenue, the Roberts Clinic at 1174 San Bernard Street and the Shelby House at 1114 W. 9th Street. St. Austin’s Catholic Parish won approval for a mixed-use building to include a small amount of residential above a parking garage.

©2003 In Fact News, Inc. All rights reserved

Starbucks contract on hold again . . . The Council postponed consideration of whether a local concessionaire at Austin-Bergstrom International Airport may sublet her space to the national coffee shop chain or must find a local business instead. ABIA Executive Director Jim Smith will have to do more to convince the Council that Starbucks is a good deal or come up with a new plan next week. In addition, staff will come back at some future date to present a new set of guidelines for a mix of local, regional and national businesses. Smith explained that there is currently no set of guidelines except for those put forth in the initial solicitation for airport concessionaires. The contracts with each of those shop owners will continue for another five years, but there may be others in the meantime who wish to sublease their space. After hearing the discussion among Council members, City Manager Toby Futrell promised to return at a work session with a new proposed policy. Based on what she heard, Futrell said she would ask staff to start with an 80/20 mix of local to national concessionaires. After the meeting, Ken Leonard, owner of Mozart’s Coffee Roasters, said he has been talking with the owner of the existing lease about taking over the site. “I think we’ve come to a good-faith arrangement. I think the existing lessor has some business to take care of with the company that’s representing Starbucks.” Leonard added, “We’re not interested in a protectionist environment. We want to compete on merit, and we believe we initially didn’t have the opportunity to do that . . . Change easier for local restaurants . . . The Armadillo Café at ABIA is also suffering from economic difficulties and has arranged a sublease not requiring Council approval. Locally owned Waterloo Ice House will open in its space. The matter does not need to go through the City Council because the use is not changing . . . Appointments . . . The City Council reappointed Leane Heldenfels by consensus to the Sign Review Board and Blanca Zamora-Garcia and Kristoffer Lands to Travis Central Appraisal District Board of Directors. Council Member Danny Thomas appointed John Patterson to the Design Commission. Acting Chief of Staff Mike McDonald was reappointed to the city’s Animal Advisory Commission. Judith Lewis also was reappointed by consensus to the Commission for Women. Council Member Raul Alvarez reappointed Gloria Pennington to the Arts Commission and Mayor Pro Tem Jackie Goodman reappointed J.D. Porter to the Solid Waste Advisory Commission . . . Postponed. . . An item to purchase the long-sought three acres near the old Seaholm Power Plant close to West Cesar Chavez was put off yesterday. Union Pacific owns the right-of-way and has been reluctant to sell.

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