Cleveland City Council

p. 263 REGULAR SESSION DECEMBER 10, 2018 3:00 P.M. MINUTE BOOK 29 BE IT REMEMBERED THAT THE CITY COUNCIL OF THE CITY OF CLEVELAND, TENNESSEE MET IN A REGULAR SESSION THIS MONDAY, DECEMBER 10, 2018 AT 3:00 P.M. AT THEIR REGULAR MEETING PLACE IN THE CLEVELAND MUNICIPAL BUILDING. Present and presiding was Mayor Kevin Brooks. Also present were Vice Mayor Avery Johnson, Councilmen Charlie McKenzie, Bill Estes, Tom Cassada, David May, Jr., Dale Hughes and Ken Webb. Others in attendance according to the sign-in sheet were as follows: City Manager Joe Fivas; Assistant City Manager/CFO Shawn McKay; Assistant City Manager/Operations Melinda Carroll; City Attorney John Kimball; Christy Brandon, Support Services Manager; Jonathan Jobe, Director of Development and Engineering; Tommy Myers, Public Works Director; Police Chief Mark Gibson; Mark Fidler, Jetport Director; Patti Petitt, Director of Parks and Recreation; Fire Chief Ron Harrison; Kris Miller, IT Director; Sue Zius, Assistant to the Mayor/Legislative Liaison; Kim Spence, Human Resource Director; Brian Moran, Social Media; Doug Berry and Gary Farlow with the Chamber of Commerce; Tad Bacon with Cleveland Utilities; David Durkin; Chair Dawn Robinson with the City School Board; Hal Taylor with City Schools; Bethany McCoy with Lee University; Sharon Marr with Mainstreet; Morgan Adams; Rosie Adams; Rochelle Mayberry; Duane Pack; Jasen Parks; Erica Leggett; Sharron Rowland; Karen Jacobs; Cindy Hal; Kathy Douglas; Teri Moody; Dr. Josh Black; Dr. David Quagliana; Nate Tucker; Terry Gross; Dr. Paul Conn; Patrick Abercrombie; Emily Harris; Amber Morris; Cameron Fisher; Amy Card-Lillios; Nicholas Lillios; Lindsey Kiker; Wendy Hughes; Jim Metzner; Anne and Sam McReynolds; Rufus Triplett; Jo Benjamin; Jayson VanHook; Mike Hayes; Vanessa Hammond; Jeff Miller; Franklin Chancey; Phillis Callaway; Jane Easterly; Ray Conn; Saurin Patel; Jeanie Kirkpatrick; Sherry Brown; Caroline Berk; Vicki Styons; Ken Kirkpatrick; Martha and John Powell; Danny Murray; John Sheehan; Jay Elliott; Barbie Conn; Jerome Hammond; Chris Conine; Maryl Elliott; Lawrence Berry; Zach Brooks; Gayle Nash; Mike Hayes; Tim Siniard with The Cleveland Daily Banner. Following the Pledge of Allegiance to the American Flag and prayer by Pastor Joe Day, the following business was then entered into: WAIVE READING OF MINUTES Vice Mayor Johnson moved that the City Council of the City of Cleveland waive the reading of the minutes of the Regular Session of the City Council held on November 26, 2018 and approve them as written. The motion was seconded by Councilman May; and upon roll call the motion unanimously passed. SPECIAL PRESENTATIONS AND PUBLIC COMMENTS Councilman Estes moved to declare the service weapon of Lieutenant Ken Higdon as surplus property effective upon the date of his retirement this year and hereby given to him as a token of the City’s appreciation for his 29-years of dedicated service to the City of Cleveland’s Police Department. The motion was seconded by Councilman Webb; and upon roll call, unanimously passed. Mayor Brooks stated Lt. Higdon was unable to attend today but we are grateful for his service to the City. Mayor Brooks then handed out Service Awards to several employees with twenty plus years of service. Mayor Brooks thanked each employee for their dedicated service. 50 Years: Councilman David May 30 Years: Jeff Tilley - Public Works 25 Years: Vice Mayor Avery Johnson 20 Years: Travis Graig - Police Shane Clark - Police Andy Ratcliff - Police Scott Criddle - Police Dean Beverly - Police Dustin Samples - Fire p. 264 REGULAR SESSION DECEMBER 10, 2018 PAGE -264- MINUTE BOOK 29 20 Years cont: Mika Akins - Fire Craig Foote - Fire Matt Ford - Fire Jasen Parks - Fire Pete VanDusen - Fire Nekita Blair - Recreation Kris Miller - IT Randy Sharp - IT Tommy Arp - Public Works Ryan Malone - Public Works Renea Brown - Public Works Eric Renfroe - Fleet HEARING PETITIONS AND COMMUNICATIONS Mayor Brooks stated today’s meeting is being held as a public hearing to hear public comments concerning a request to rezone 1.4 acres located at Blythe Ferry Rd and Unity Dr NE (Tax Map 50 Parcel 4.08) from IL Light Industrial Zoning District to R2 Low Density Single and Multi-Family Residential Zoning District. Corey Divel gave a brief staff report and stated it was approved by the Planning Commission 9-0. Mayor Brooks asked if anyone would like to speak in favor of the rezoning. Attorney Travis Henry spoke on behalf of Unity Fellowship Church who are the applicants seeking the rezoning of the property. The property is currently light industrial, which adjoins R1. They are planning to construct townhomes and feels R2 would be a good transition. Mayor Brooks then asked if anyone would like to speak in opposition to the rezoning. No one spoke. Mayor Brooks then declared the public hearing to be closed. Mayor Brooks stated today’s meeting is being held as a public hearing to hear public comments concerning a request to rezone 18.2 acres located on APD40 and off of Shady Ln NE (Tax Map 50G Group A Parcel 1.00) from IL Light Industrial Zoning District to R2 Low Density Single and Multi-Family Residential Zoning District. Corey Divel gave a brief staff report and stated it was approved by the Planning Commission 9-0. Mayor Brooks asked if anyone would like to speak in favor of the rezoning. No one spoke. Mayor Brooks asked if anyone would like to speak in opposition of the rezoning. No one spoke. Mayor Brooks declared the public hearing to be closed. Mayor Brooks stated today’s meeting is being held as a public hearing to hear public comments concerning a request to rezone 1.18 acres located at 1780 Church St NE (Tax Map 49L Group E Parcel 1.00) from R1 Single-Family Residential Zoning District to PI Professional Institutional Zoning District. Corey Divel gave a brief staff report and stated it was approved by the Planning Commission 5-4. Mayor Brooks asked if anyone would like to speak in favor of the rezoning. Jerome Hammond with Lee University spoke regarding the rezoning by saying the property is located on the north end of the campus on 1.1 acres. It has been a part of the university’s campus for nine years. The property was a gift to Lee University in 2009. They finally decided what to do with the home and recently restored the house due to inspiration by another gift of a home. They would like to rezone the home to use it as a light entertainment venue, for dinner parties, and the occasional guest would stay there. They feel it maintains the integrity of the zoning ordinance of PI and confident on how to use the property with dignity and respect of the area. In some opposition, people felt it was spot zoning. It actually sits contiguous to property owned by Lee which is already zoned PI. Someone asked if there were deed restrictions on the property, which there is no longer deed restriction. People thought maybe the house would be torn down. Lee has invested $200,000 in restoration of the home and once people walk through the home they see how beautiful it is now. Also, there are no offices on the property. They have considered all suggestions, like creating a new zone, or more time to think about it. These were all considered before the November 20, 2018 Planning Commission. Since then, Lee has been sympathetic to the concerns, he lives in the historic district as well. Change always creates fear and they understand. Lee has offered to put deed p. 265 REGULAR SESSION DECEMBER 10, 2018 PAGE -265- MINUTE BOOK 29 restrictions on the property that would limit the type of structure on the property and would also in the unlikely event the property would not belong to Lee it would immediately revert back to R1. It has been three months now discussing the property rezoning and feel it is a straight forward request. They have been transparent about their intended use, consulted people about what is the proper zone in existing ordinances and the answer has always been PI. They are ready for an answer on their request to rezone the property from R1 to PI. Mayor Brooks asked if anyone would like to speak in opposition of the rezoning. Amy Card-Lillios, who is a property owner at 1550 Church Street NE. Her and her family owns five homes for about 15 acres total and her grandsons are the fifth generation to live on the property. The family has been good neighbors with Lee University and before that, Bob Jones College, and before that Centenary Female Institute. She reminisced on her memories living on Church Street and has enjoyed living next door to a young, growing, vibrant institution. Her grandfather allowed the City to build what is now Parker Street right through the middle of the Card Farm. Her family donated property for Lee to grow and develop. In 1999 her family meet with Dr. Conn to sign over the last parcel of the Card Farm. That morning her father had a heart attack, but they kept the meeting with Lee, at the hospital, because if their father died it would be years before the estate was settled. That deal was made with trust and was kept by them. The property was the block long field along 20th Street, which is now the multi-level O’Bannon Hall, Butler Softball Field and Schimmels Park and we agreed that Church Street would be left R1. This agreement was approved by this Council as reflected in the minutes from January 10, 2000 that Church Street would remain R1. She feels the family and parties involved made an agreement, approved by the City Council that should have been lasting. They are not opposed to Lee using the Dethero House as a venue for receptions or as a guest house as it is an exact copy of a house from Colonial Williamsburg. They do not want to see the history and integrity of the area changed and believes it will with PI zoning. They are not sure why Lee will not compromise with the Downtown Historic Group to find a way to use the house as a venue, if it is truly what they want to use it for. Progress is great but not at the price of losing the history, beauty and character of Historical Downtown and the original residential area surrounding it. Cleveland has grown, and we must preserve and protect the history that has made us the City with Spirit and the spirit of our ancestors should not be obliterated. Lee has done a wonderful job and enjoyed living her whole life next door, but our family is opposed to this zoning change. It was not the original agreement and not necessary. In Cleveland your word should be your word. A deal is a deal and a trust, a promise, a will not to be broken. A City Council vote written and recorded should be honored. Maryl Elliott, who lives on Worth Street commented she is not opposed to Lee but opposed to the rezoning of the property. She has been on the Planning Commission for 34-years. She made a motion at the Planning Commission meeting to deny the rezoning. It failed 5:4 and an alternate motion pass 5:4. She feels strongly to preserve our history and in 2004 the Council established a Historic Commission, which she is current Chairman. The Dethero House is a historic house in the historic residential neighborhood and its residents are saying please don’t do this. There can be a compromise that will work for both sides. The residents are fine with Lee using the house as they intend to without a zoning change. Leave the property zoned R1 with a conditional use, allowing Lee to use it for their stated purpose. She has been proud of the Council by saying no to zoning changes in residential neighborhoods, if the homeowners are asking please don’t do this. Jo Benjamin, who lives at 1640 North Ocoee Street stated in 1998 they found out their property was rezoned to PI, which included a number of houses. They had a meeting and Eddie Duncan was the spokesperson for the group. It was a very stressful and contentious time and end the end they were zoned R1. Now there is a sign posted to announce the rezoning, so people would be aware. In 2010, Dr. Conn had agreed that Church Street would remain a residential neighborhood. It’s in the minutes and we took him at his word and didn’t expect to be back here for a similar situation. You are all elected by the people and will find it difficult if they feel you must support Lee University rather than the people who elected you to the Council. Steve Scoggins, who lives on Ocoee Street, stated many can see this is an emotional and public issue between Lee, HCNA, Church Street residents and other members of the public. He thanked Mayor Brooks, Councilmen Hughes, Estes, Cassada and McKenzie all of who he has spoken to. He asked if the Council would allow them to finish the compromise that was started late last week. He met with Dr. Hammond to find some compromise and discuss concepts that Lee would be willing to live with. HCNA reached a compromised, which is keeping the property R1 but allowing Lee to use it for their intended use, by adding a conditional use clause and allows the HCNA to protect the R1 neighborhood status. Lee has agreed to move forward to rezoning the property to PI and agreed to p. 266 REGULAR SESSION DECEMBER 10, 2018 PAGE -266- MINUTE BOOK 29 specific deed restrictions, such as a twenty-year restriction limited the type of structure that can be built there, as well as a restriction that reverts the property back to R1 if Lee University no longer owns it. The HCNA met and although they felt their proposal was better, they did agree to consider discussion of Lee’s proposal. They ask to review the specific deed language and pass along to the residents to see what is written. They did ask them to consider delaying the vote so they could continue talking with the neighbors. They have yet to see the deed restrictions and are asking for a delayed vote until the next scheduled meeting. Emotions are high on both sides and he is concerned about relationships going forward. We must work together, peacefully. John Anderson, who represents Nicholas Lillios at 1601 Church Street stated it is important that if there is a representation and assurances made by a party asking for rezoning that certain areas are going to be future rezonings that is something the Council should respect and take serious consideration. Additionally, in the Planning Commission packet there was a legal opinion relating to spot-zoning. He disagrees it is clearly not spot-zoning. The property at 1780 Church Street is contiguous to PI zoning from another street is not the sole and defining factor on what the courts say as it relates to spot-zoning. Spot-zoning is singling out a single piece of land for the benefit of the owner and the detriment of the surrounding owners. There is argument that PI is behind the property, but Church Street is a residential area. Lee University agreed years ago to maintain the integrity of Church Street. They would like to find a solution and the deed restrictions are a start. Lastly, they feel two Council members have disclosures they need to make, Councilman Estes who works for Lee and Councilman May who has renovated the Dethero House. Councilman May stated for the record, when he voted on the Planning Commission he did declare his conflict and would during this meeting as well. Carolyn Burke, who lives on Worth Street moved to Cleveland in 2010. She backs up to PI zoning and doesn’t agree with properties being contiguous can asked to be rezoned, anyone could ask and open a business in the residential area. She feels it is a slippery slope to look at rezoning issues that way. Rufus Triplett, who lives on Centenary Avenue stated he is here with the HCNA, presented a petition of signatures of those against the rezoning. They wish to preserve the integrity of R1 zoning. He hopes they will take into consideration everything that has been shared today. They want to continue to be good neighbors with Lee. He asked they vote their conscience and not their personal preference. Mayor Brooks asked if anyone else would like to add anything further, other than what we’ve already heard. Councilman Hughes stated he would like to hear from Dr. Conn. Dr. Conn stated this is an important moment for Lee University and the City. In 1987, Lee was just getting started in their growth and asked the Commission to close a piece of Church Street to allow them to build a decent campus and it was a tough call. They had no track record and didn’t have much to offer but a promise for them to take a chance. The vote was 3:2 and it wasn’t easy and Lee’s growth has enhanced Cleveland’s growth. Lee is not the problem, many have said they aren’t against Lee, nor is PI the problem. PI works great for all the values for everyone here. Change is not the problem, it’s hard. The problem is change that overtakes us and we are afraid to get out in front of it and manage it. There are a lot of emotions, fear, hurt with this issue. They wanted to go about the rezoning with facts and let the decisions be made. Our campus development has been organized over the last twenty years, which was a challenge set by the Council. They have made 147 property deals since 1990, zero have been west of Ocoee, because they respect the neighborhood. Lee’s involvement has not reduced property values downtown. They make sure their developments are ascetically pleasing and invest in maintenance and care. He continued that he is available to hear issues and discuss problems with people but only one person contacted him concerning this rezoning item. He then asked what would we gain by delaying. It has been over two months, all arguments have been exhausted and keeping it unresolved after today would be divisive to the community and will simply continue to stir up the controversy. No promise, commitment or guarantee about seeking a rezoning of any part of town has ever been offered in 2000 or any other time. No deal was made. In 2000, we were dealing with Parker Street zoning and getting the records straight. The Dethero House was sold to them by Boyd Dethero and we have a letter from Mr. Dethero from 1999, asking for the property to be zoned PI so he could keep his options open. Dr. Conn then described each house along Church Street and which ones had been offered to Lee to purchase and feels this side of Church Street is a destabilized portion and Lee is trying to help the neighborhoods. The campus is their home, an institution and it is a shared neighborhood. He then asked if the neighborhoods had been destabilized or stabilized because of Lee. They love the neighborhood and honor traditions. Communities in America should hope for institutions like Lee that are willing to dig in, spend a lot of money, take care of their stuff, respect their neighborhoods p. 267 REGULAR SESSION DECEMBER 10, 2018 PAGE -267- MINUTE BOOK 29 and if the institutions do that, it’s time for the community to step up and affirm that and recognize and trust what they are doing because of their past track record. That is where they are today. He respectfully requests the Council take action today and give them a PI zoning so they can continue to develop in a way they have been. Councilman Estes asked if Dr. Hammond could explain the deed restrictions they are offering. Dr. Hammond responded the restrictions are, due to the strong feelings of the community, the University agrees not to build, for twenty-years, any structure on the property that is not a residential type structure and that the property would revert to R1 if Lee University was not the owner. He then thanked everyone for their time and consideration. Mayor Brooks then declared the public hearing to be closed. CONSENT AGENDA Councilman Estes moved to approve the following items from the Consent Agenda: • Street Light Request – Mayor Brooks located at Berry St NE @ 1st St (Cleveland Utilities recommends the addition of two 48-watt LED fixtures). • Bid Summary – Re-roofing Fire Staton #4 (Cleveland Roofing Company $39,500). AGENDA ITEM MEMORANDUM TO: Mayor and City Council FROM: Melinda Carroll, Assistant City Manager DATE: December 4, 2018 RE: Bid Summary – Re-roofing Fire Station #4 (Keith Street) SUMMARY: Sealed bids were received on November 28, 2018 for re-roofing Fire Station #4. The bids are listed below: • Cleveland Roofing Co., Inc. Cleveland, TN $39,500.00 ______ • JDH Company Chattanooga, TN $61,500.00 ______ • Porter Roofing Contractors, Inc. Chattanooga, TN $40,744.00________ COMMITTEE FINDINGS: No Board or Committee findings. FISCAL ANALYSIS: This is a capital improvement project and is within budget. RECOMMENDATION: Thee low bid is Cleveland Roofing Company. Staff is recommending approval of this project. • Bid Summary – Re-roofing Public Works Facility (Cleveland Roofing Company $75,000). p. 268 REGULAR SESSION DECEMBER 10, 2018 PAGE -268- MINUTE BOOK 29 AGENDA ITEM MEMORANDUM TO: Mayor and City Council FROM: Melinda Carroll, Assistant City Manager DATE: December 4, 2018 RE: Bid Summary – Re-roofing Public Works Facility SUMMARY: Sealed bids were received on November 28, 2018 for re-roofing Public Works Facility. The bids are listed below: • Cleveland Roofing Co., Inc. Cleveland, TN $75,000.00 • JDH Company Chattanooga, TN $114,400.00 • Porter Roofing Contractors, Inc. Chattanooga, TN $78,762.00 COMMITTEE FINDINGS: No Board or Committee findings. FISCAL ANALYSIS: This is a capital improvement project and is within budget. RECOMMENDATION: The low bid is from Cleveland Roofing Company. Staff is recommending approval of this project. • Reappointment – Housing Board of Adjustments & Appeals - Ann Mastin for an additional 3-year term to expire 10/2021. • Reappointment – Zoning Board – Dan Moore for an additional 3-year term to expire 11/2021. • Reappointment – Fletcher Park Board – Bernadette Douglas for an additional 3-year term to expire 12/2021. • Reappointment – Fletcher Park Board – Anne Jones for an additional 3-year term to expire 12/2021. • Reappointment – Parks Advisory Board – Hiawatha Brown for an additional 3-year term to expire 12/2021. • Reappointment – Parks Advisory Board – Pat Ensley for an additional 3-year term to expire 12/2021. • Reappointment – Parks Advisory Board – Bernadette Douglas for an additional 3-year term to expire 12/2021. • Reappointment – Stormwater Board – Travis Henry for an additional 4-year term to expire 12/2022. • Reappointment – Stormwater Board – Mickey Torbett for an additional 4-year term to expire 12/2022. The motion was seconded by Councilman Cassada; and upon roll call, the motion to approve the consent agenda was unanimously passed. p. 269 REGULAR SESSION DECEMBER 10, 2018 PAGE -269- MINUTE BOOK 29 REPORTS OF MAYOR AND COUNCIL MEMBERS Councilman Webb stated he understands that the guardrail issue on Mouse Creek Road is being resolved. Mr. Myers replied yes, they are in the process of stabilizing it. Vice Mayor Johnson stated he received several calls concerning the Church Street rezoning issue and has considered passing on the vote. There are two strong entities on different sides of opinion. He respects the Historic Society and the neighbors and understands their concerns, especially the history of the community. Lee University prepares our children for the future. One entity is looking at history and the other is looking towards the future. He then asked if the time could be extended to give them another opportunity to reach a compromise so the Council doesn’t have a split vote like the Planning Commission. We could have first reading today and delay final reading until January 28. Relationships are important going forward and maybe they can reach a compromise. Dr. Conn responded there’s benefit in further discussion, but it could become more divisive just hanging out there. A vote of confidence is very important to them at this time and they are willing to meet with anyone, anytime and go over the details of the deed restrictions. Vice Mayor Johnson thanked Dr. Conn and continued that he would like to delay final reading but would like to vote on first reading today. Councilman McKenzie asked why couldn’t the vote be delayed to give them time to work out the issues; possibly 30 days. Councilman May stated the next meeting is not for five weeks, due to the holiday’s. Councilman McKenzie continued they should try to work it out. Councilman Cassada stated he has talked with both sides of the rezoning issues and had hoped a conclusion could have been reached but it looks like a decision is going to have to be made one way or another. He stated he didn’t feel Dr. Conn would tear down the house where his father passed away. Lee has been a great partner in the community and wished it could’ve been resolved weeks ago, but there are going to be winners and losers. He wants to do what is right and move forward for the community. Councilman Hughes stated over the years, Lee has earned the trust of the greater Cleveland area. We have a neighborhood who has concerns but he knows how the greater Cleveland feels about Lee and what they have done. Lee doesn’t do things half baked. They always complete the baking and then put icing on the top. Every building is a stately building. The interiors are gorgeous. The landscaping is unparalleled. I guaranteed that building is going to be a credit to the Church Street community. He has done his homework; discussed with the Planning Commission members, met with Steve Scoggins for over an hour and feels if you go down Billy Graham Avenue and see the Math and Science Building, the tennis complex and the DeVos Recreation Area, all that has to help the entire area. Your houses have been elevated financially because of Lee. He feels now is the time to make a decision. Mayor Brooks stated he is reappointing to the Cleveland Housing Authority Board Joe Washington for a term to expire December 2023. Also, he is appointing David Durkin for a term to expire November 2023 and Victoria Edge, as resident appointment, through November 2023 to the same Board. NEW BUSINESS AND ORDINANCES The following Zoning Ordinance was presented in full: • Zoning Ordinance No: 2018-32 – Rezoning 1.18 acres located at 1780 Church St NE (Tax Map 49L Group E Parcel 1.00) from R1 Single-Family Residential Zoning District to PI Professional Institutional Zoning District (Planning Commission: Approved 5-4). p. 270 REGULAR SESSION DECEMBER 10, 2018 PAGE -270- MINUTE BOOK 29 ZONING ORDINANCE NO: 2018-32 BE IT ORDAINED by the City Council of the City of Cleveland, in regular session assembled that the property described herein be, and the same is hereby, re-zoned from R1 Single Family Residential Zoning District to PI Professional Institutional Zoning District. Approximately 1.18 acres, more or less, located at 1780 Church St NE as shown on the attached map. And being shown on Tax Map 49L Group E Parcel 1.00 in the Assessor’s Office for Bradley County, Tennessee. BE IT FURTHER ORDAINED that all Ordinances in conflict herewith are repealed to the extent of said conflict. BE IT FURTHER ORDAINED that this Ordinance shall take effect from and after its passage on final reading, the public welfare requiring it. APPROVED AS TO FORM: /s/John F. Kimball ___________________________ City Attorney Kevin Brooks, Mayor ___________________________ Shawn McKay, City Clerk Exhibit p. 271 REGULAR SESSION DECEMBER 10, 2018 PAGE -271- MINUTE BOOK 29 Councilman May stated he needs to declare his company has worked on this house and a house for Lee, the Von Hamilton house, also his company has worked on twenty houses in the historic district as well as built a new house on Church Street, which will not affect his vote. He p. 272 REGULAR SESSION DECEMBER 10, 2018 PAGE -272- MINUTE BOOK 29 then moved that Zoning Ordinance No: 2018-32 be approved on first reading, which includes the attached Declaration to Establish Private Restrictions. The motion was seconded by Councilman Cassada. Councilman Webb asked if the deed restrictions were effective for twenty-years. Dr. Hammond stated yes that is correct. Councilman Webb then asked would a conditional use, under R1 zoning, allow you to use the Dethero House for purposes you desire to use it for. Dr. Hammond stated they are unsure because the verbiage is subject for approval from the HCNA. That makes us terribly uncomfortable. The question is how long will the language be debated before everyone is satisfied. It could probably be a long time. We have a property we have heavily invested in that we are going to use respectfully. There is a zone that currently exists that is perfectly valid, as been determined by the Planning Commission and staff, which is PI. We feel the selection of the zone maintains the integrity of the zoning laws the City has already established. Councilman Webb replied the reason for asking for a conditional use does not lock you into a twenty-year period if conditions change and wanted their consideration. Councilman Estes stated he has an indirect conflict of interest with Lee University as his employer, which does not affect his vote. Mayor Brooks then asked for a vote. Upon roll call, Councilman May, Councilman Cassada, Councilman Estes and Councilman Hughes voted aye. Councilman Webb, Councilman McKenzie and Vice Mayor Johnson voted no. The motion carried 4:3. The following Zoning Ordinance was then presented in full: • Zoning Ordinance No: 2018-31 – Rezoning 1.4 acres located at Blythe Ferry Rd and Unity Dr NE (Tax Map 50 Parcel 4.08) from IL Light Industrial Zoning District to R2 Low Density Single and Multi-Family Residential Zoning District (Planning Commission: Approved 9-0). ZONING ORDINANCE NO: 2018-31 BE IT ORDAINED by the City Council of the City of Cleveland, in regular session assembled that the property described herein be, and the same is hereby, re-zoned from IL Light Industry to R2 Low Density Single and Multi-Family Residential Zoning District. Approximately 1.4 acres, more or less, located at Blythe Ferry Rd and Unity Dr NE as shown on the attached map. And being shown on Tax Map 50 Parcel 4.08 in the Assessor’s Office for Bradley County, Tennessee. BE IT FURTHER ORDAINED that all Ordinances in conflict herewith are repealed to the extent of said conflict. BE IT FURTHER ORDAINED that this Ordinance shall take effect from and after its passage on final reading, the public welfare requiring it. APPROVED AS TO FORM: /s/John F. Kimball ___________________________ City Attorney Kevin Brooks, Mayor ___________________________ Shawn McKay, City Clerk p. 273 REGULAR SESSION DECEMBER 10, 2018 PAGE -273- MINUTE BOOK 29 Exhibit Councilman Estes moved that Zoning Ordinance No: 2018-31 be approved on first reading. The motion was seconded by Councilman May; and upon roll call, unanimously passed. The following Zoning Ordinance was then presented in full: • Zoning Ordinance No: 2018-33 – Rezoning 18.2 acres located on APD40 and off of Shady Ln NE (Tax Map 50G Group A Parcel 1.00) from IL Light Industrial Zoning District to R2 Low Density Single and Multi-Family Residential Zoning District (Planning Commission: Approved 9-0). ZONING ORDINANCE NO: 2018-33 BE IT ORDAINED by the City Council of the City of Cleveland, in regular session assembled that the property described herein be, and the same is hereby, re-zoned from IL Light Industry to R2 Low Density Single and Multi-Family Residential Zoning District. Approximately 18.2 acres, more or less, located at APD40 and off of Shady Ln as shown on the attached map. And being shown on Tax Map 50G Group A Parcel 1.00 in the Assessor’s Office for Bradley County, Tennessee. BE IT FURTHER ORDAINED that all Ordinances in conflict herewith are repealed to the extent of said conflict. BE IT FURTHER ORDAINED that this Ordinance shall take effect from and after its passage on final reading, the public welfare requiring it. APPROVED AS TO FORM: /s/John F. Kimball ___________________________ City Attorney Kevin Brooks, Mayor ___________________________ Shawn McKay, City Clerk p. 274 REGULAR SESSION DECEMBER 10, 2018 PAGE -274- MINUTE BOOK 29 Exhibit Councilman May moved that Zoning Ordinance No: 2018-33 be approved on first reading. The motion was seconded by Councilman Webb; and upon roll call, unanimously passed. The following Resolution was then presented in full: • Resolution No: 2018-98 – Delegating the Health and Education Facilities Board to negotiate a proposed PILOT for Cleveland Court. RESOLUTION NO: 2018-98 RESOLUTION CONSENTING TO THE HEALTH AND EDUCATIONAL FACILITIES BOARD OF THE CITY OF CLEVELAND NEGOTIATING AND ACCEPTING PAYMENTS IN LIEU OF AD VALOREM TAX WITH RESPECT TO A CERTAIN PROJECT IN THE CITY OF CLEVELAND, TENNESSEE, AND FINDING THAT SUCH PAYMENTS ARE DEEMED TO BE IN FURTHERANCE OF THE PUBLIC PURPOSES OF THE BOARD AS DEFINED IN TENNESSEE CODE ANNOTATED SECTION 48-101-312. WHEREAS, the City Council (the “Governing Body”) of the City of Cleveland, Tennessee (the “City”) has met pursuant to proper notice; and WHEREAS, the City has previously authorized the incorporation of The Health and Educational Facilities Board of the City of Cleveland (the “Board”) as a health, educational and housing facility corporation duly organized and existing under the provisions of Title 48, Chapter 101, Part 3, Tennessee Code Annotated; and WHEREAS, the City has also previously adopted Ordinance No. 2016-08 (the "Ordinance"), on March 28, 2016, that requires any agreement for a payment in lieu of tax for a tax-credit housing project with the Board be considered and approved by the Governing Body prior to approval by the Board; and WHEREAS, the City has been informed that Cleveland Summit, L.P., a Tennessee limited partnership, or an affiliate thereof (the “Developer”), intends to cause the construction of a low to moderate income elderly residential housing development (collectively, the “Project”) located on Smith Drive, Cleveland, Tennessee to be known as Cleveland Court Apartments (the “Property”); and WHEREAS, the Developer has requested the Board to hold ownership of the Property; and p. 275 REGULAR SESSION DECEMBER 10, 2018 PAGE -275- MINUTE BOOK 29 WHEREAS, the Developer has furthermore requested the Board to lease the Project to the Developer and to permit the Developer to make payments in lieu of ad valorem taxes; and WHEREAS, Tenn. Code Ann. § 48-101-312(b) authorizes the City to delegate to the Board the authority to negotiate and accept from the lessees of the Board payments in lieu of ad valorem tax upon the finding that such payments are deemed to be in furtherance of the public purposes of the Board as defined in said Code Section. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Cleveland, Tennessee, as follows: 1. The Governing Body hereby finds that the negotiation and acceptance by the Board of payments in lieu of ad valorem taxes consistent with this resolution are deemed to be in furtherance of the public purposes of the Board as defined in Tennessee Code Annotated Section 48-101-312, and the Governing Body hereby consents and delegates to the Board the right to negotiate and accept such payments from the Developer. 2. The terms of the agreement between the Board and the Developer concerning payments in lieu of ad valorem taxes shall be determined by the Board; provided, that the amounts of the payments in lieu of taxes and term that such payments are made shall be subject to the approval of the City Manager prior to the execution of any agreements relating to such payments. 3. The Board's agreements concerning payments in lieu of ad valorem taxes relating to the Project may contain such administrative provisions not inconsistent with this resolution as the Board deems appropriate. 4. All other resolutions and orders, or parts thereof, in conflict with the provisions of this resolution are, to the extent of such conflict, hereby repealed, and this resolution shall be in immediate effect from and after its adoption. Adopted this the ____ day of December, 2018. Mayor ATTEST: City Clerk STATE OF TENNESSEE ) COUNTY OF BRADLEY ) I, Shawn McKay, certify that I am the duly qualified and acting City Clerk of City of Cleveland, Tennessee, and as such official I further certify that attached hereto is a copy of excerpts from the minutes of a meeting of the governing body of the Municipality held on December _____, 2018; that these minutes were promptly and fully recorded and are open to public inspection; that I have compared said copy with the original minute record of said meeting in my official custody; and that said copy is a true, correct and complete transcript from said original minute record insofar as said original record relates to consenting to The Health and Educational Facilities Board of the City of Cleveland negotiating and accepting payments in lieu of ad valorem tax. WITNESS my official signature and seal of said Municipality on _____________, 2018. City Clerk Councilman Cassada moved that Resolution No: 2018-98 be accepted as presented. The motion was seconded by Councilman Estes; and upon roll call, unanimously passed. p. 276 REGULAR SESSION DECEMBER 10, 2018 PAGE -276- MINUTE BOOK 29 Mayor Brooks stated now we have before us Ordinance No: 2018-30 which is amending the Cleveland Municipal Code, Title 8 to add a new chapter entitled Liquor Stores. There are still a few areas that need Council directions. Councilman Estes stated he has learned a lot about liquor legislation and he encouraged the Council to start conservative because it is much easier to loosen our regulations rather than reign them in if we go too far so early. He particularly feels five stores are too many. Councilman May stated he feels the amount of investment it will take to open a store and doesn’t want to have to pick who can open a liquor store, then politics enters in. Councilman Estes replied if we say 300 feet distance you’ve already ruled out certain parcels of land and a standalone building restriction, you are ruling people out. We should be conservative. Councilman May stated the market drives itself. Councilman Estes stated we should set the restrictions as such to keep it as low as possible. Councilman Cassada stated Council will make a decision who gets a license and where will the license go. We have to review it and have the control. We shouldn’t put a limit but doesn’t feel Cleveland can sustain three or four stores. Councilman May agreed. Mayor Brooks asked for guidance from City Manager Joe Fivas. Mr. Fivas replied you have two draft Ordinances, one with no limit and one with a limit. You need to make that determination first and then you can address the distance requirement, display space, delivery options and stand along building structure. Councilman Cassada stated he would like to take the issues one at a time. Mr. Kimball stated the first item is the number of licenses. Councilman Cassada then moved that Section 8-318 of Ordinance No: 2018-30 state no limit on liquor store privilege licenses. The motion was seconded by Councilman May. Councilman Estes then offered a substitute motion to limit the number of liquor store privilege licenses to four. The motion was seconded by Vice Mayor Johnson; and upon roll call Councilman Estes, Councilman Hughes and Vice Mayor Johnson voted aye. Councilmen Webb, McKenzie, May and Cassada voted no. The substitute motion failed 3:4. Councilman Estes then offered another substitute motion to limit the number of liquor store privilege licenses to five. The motion was seconded by Councilman Hughes. Councilman May asked how would we cap it. Mr. Kimball replied you will have an application and then set a timeframe that you would accept and stop taking applications. You would look at every application, and make sure they meet all the criteria, and assuming you have more than five, you would have to pick the five you like the best, which is done by other cities. Upon roll call Councilman Estes, Councilman Hughes, Councilman McKenzie and Vice Mayor Johnson voted aye. Councilmen Webb, Cassada and May voted no. The substitute motion passes 4:3. Mr. Fivas stated we are now looking at the distance requirement in Section 8-305. Councilman May moved that Section 8-305 of Ordinance No: 2018-30 state within 300 feet of any building used as a school or church. The motion was seconded by Councilman Webb. Councilman Estes offered a substitute motion to increase the distance to 500 feet of any building used as a school or church. The motion was seconded by Councilman McKenzie; and upon roll call, Councilmen Estes, McKenzie and Vice Mayor Johnson voted aye. Councilmen Webb, Cassada, May and Hughes voted no. The motion failed 3:4. Mayor Brooks stated back to the original motion from Councilman May that Section 8- 305 of Ordinance No: 2018-30 state within 300 feet of any building used as a school or church. The motion was seconded by Councilman Webb; and upon roll call it was unanimously approved. Mr. Fivas stated we are now looking at the size of the display space in Section 8-306. Councilman Cassada moved that Section 8-306 of Ordinance No: 2018-30 state the liquor store display area shall be at least 2,000 square feet. The motion was seconded by Councilman Webb. Councilman Estes stated 2,000 is small. We need to regulate this now since we can always come back to increase it. It should be large, standalone, well lit, well glassed safe and commercial highway. This is too small. p. 277 REGULAR SESSION DECEMBER 10, 2018 PAGE -277- MINUTE BOOK 29 Councilman Estes then offered a substitute motion for the display area to be 5,000 square feet. The motion died for a lack of a second. Mayor Brooks stated back to the original motion from Councilman Cassada that Section 8-306 of Ordinance No: 2018-30 state the liquor store display area shall be at least 2,000 square feet. The motion was seconded by Councilman Webb; and upon roll call, Councilmen Cassada, Webb, May and Hughes voted yes. Councilmen McKenzie, Estes and Vice Mayor Johnson voted no. The motion passes 4:3. Mr. Fivas stated we are now looking at the zoning district, which as written is currently CH Highway Commercial. Councilman Estes moved that all liquor stores be located within the Highway Commercial CH zoning district. The motion was seconded by Councilman Webb; and upon roll call it was unanimously passed. Councilman Estes moved that all liquor stores approved by the Council be standalone stores (Section 8-306 of Ordinance No: 2018-30). The motion was seconded by Councilman Hughes; and upon roll call it was unanimously passed. Mr. Fivas stated we have new language in Section 8-307(f) allowing delivery service. Mr. Kimball stated there is a state law that allows for a delivery service license through TABC and we should all that provision to our Ordinance. Councilman Estes moved that it be approved. The motion was seconded by Councilman Cassada; and upon roll call, unanimously passed. Councilman Cassada inquired about requirements for outside lighting for safety and window size, which is still not defined, which will be difficult. He would like those two issues addressed. Mr. Fivas stated it was researched and nothing was found to draft the ordinance. Mayor Brooks stated we could add any of these changes on final reading. Mr. Kimball replied yes. Councilman Webb stated he would like to have the input of the Police Department as well. Mayor Brooks announced at 5:27 p.m. that the City Council would recess for the ordinance to be prepared to include the changes just made. Mayor Brooks then called the City Council back into session at 5:40 The following Ordinance was then presented in full: ORDINANCE NO. 2018-30 AN ORDINANCE TO AMEND TITLE 8 OF THE CLEVELAND MUNICIPAL CODE, ENTITLED ‘ALCOHOLIC BEVERAGES’, BY ADDING A NEW CHAPTER TO BE DESIGNATED CHAPTER 3, ENTITLED ‘LIQUOR STORES’. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CLEVELAND TENNESSEE: SECTION 1: Title 8 of the Cleveland Municipal Code is hereby amended by adding a new Chapter 3 entitled "Liquor Stores" CHAPTER 3 LIQUOR STORES SECTION 8-301. Definitions. 8-302. Selling and Distributing Generally. 8-303. Licenses Required for Sale of Alcoholic Beverages at Retail. 8-304. Licensee Responsible for Officers and Agents. 8-305. Location of Liquor Store. p. 278 REGULAR SESSION DECEMBER 10, 2018 PAGE -278- MINUTE BOOK 29 8-306. Requirements for Building Containing Liquor Store. 8-307. Restrictions Generally. 8-308. Fees. 8-309. Records Kept by Licensee. 8-310. Inspections Generally. 8-311. Enforcement—Violations—Penalties 8-312. Certificate of Compliance. 8-313. Application for Certificate of Compliance and Local Liquor Store Privilege License 8-314. State Required Certificate of Compliance. 8-315. Restrictions upon Issuance. 8-316. Consideration of Applications for Certificate of Compliance 8-317. License from City to Operate Liquor Store. 8-318. Restrictions on Local Liquor Store Privilege Licenses. 8-319. Qualifications for and Restriction upon Licensees and Employees. 8-320. Nature of License; Suspension or revocation. 8-321. Effect. 8-301. Definitions. Whenever used in this Chapter, the following terms shall have the following meanings unless the context necessarily requires otherwise: (a) Alcoholic Beverage means and includes alcohol, spirits, liquor, wine and every liquid containing alcohol, spirits, and wine capable of being consumed by a human being other than medicine or beer where the latter contains an alcohol content of five percent (5%) by weight or less. Alcoholic beverages also includes any liquid product containing distilled alcohol capable of being consumed by a human being, manufactured or made with distilled alcohol irrespective of alcoholic content. Products or beverages, including beer, containing less than one-half percent (½%) alcohol by volume, other than wine as defined in this section, shall not be considered alcoholic beverage and shall not be subject to regulation or taxation pursuant to this chapter unless specifically provided. (b) Applicant means a person applying for a local liquor store privilege license or a certificate of compliance, as the context provides. (c) Applicant Group means more than one (1) person joining together to apply for a local liquor store privilege license or certificate of compliance, as the context provides, to operate a single liquor store pursuant to the same application. (d) Application means the form or forms or other information an applicant or applicant group is required to file with the city in order to attempt to obtain a local liquor store privilege license or certificate of compliance, as the context provides. (e) Certificate of Compliance means the certificate required in Tenn. Code Ann. §57- 3-208, as the same may be amended, supplemented or replaced, and subject to the provisions set forth in this chapter for issuance of such a certificate. (f) City means the City of Cleveland, Tennessee. (g) Co-licensees means persons who together hold a single liquor store privilege license for a single liquor store. (h) Federal Statutes means the statutes of the United States now in effect or as they may hereafter be changed or amended. (i) Inspection Fee means the monthly fee a licensee is required by this chapter to pay, the amount of which is determined by a percentage of the gross purchase price of all alcoholic p. 279 REGULAR SESSION DECEMBER 10, 2018 PAGE -279- MINUTE BOOK 29 beverages acquired by the licensee for retail sale from any wholesaler or any other source. In the event of co-licensees holding a local liquor store privilege license for a single liquor store, such inspection fee shall be the same as if the local liquor store privilege license were held by a single licensee. (j) License Fee means the annual fee a licensee is required by this chapter to pay prior to the time of the issuance or renewal of a local liquor store privilege license. In the event of co- licensees holding a local liquor store privilege license for a single liquor store, only one (1) license fee is required. (k) Licensee means the holder or holders of a local liquor store privilege license. In the event of co-licensees, each person who receives a certificate of compliance and liquor store privilege license shall be a licensee subject to rules and regulations herein. (l) Liquor Store means the building or part of a building where a licensee conducts any of the business authorized by the local liquor store privilege license and state liquor license held by such licensee. (m) Local Liquor Store Privilege License means a local liquor store privilege license issued under the provisions of this chapter for the purpose of authorizing the holder or holders thereof to engage in the business of selling alcoholic beverages at retail in the city at a liquor store. Such a local liquor store privilege license will only be granted to a person or persons who has or have a valid state liquor retailer's license. One (1) local liquor store privilege license is necessary for each liquor store to be operated in the city. (n) Manufactured building means a structure or building substantially or wholly made at a manufacturing plant for installation or assembly at a building site, whether referred to as a mobile home, modular home, manufactured home, panelized home, prefab home, factory built home, or otherwise. A manufactured building includes any structure transportable in one or more sections built or placed on a permanent chassis designed to be used with or without a permanent foundation. (o) Person means any natural person as well as any corporation, limited liability company, partnership, firm or association or any other legal entity recognized by the laws of the State of Tennessee. (p) Retail Sale and Sale at Retail means the sale to a consumer or to any person for any purpose other than for resale. (q) State Law, Rules and Regulations means all applicable laws, rules and regulations of the State of Tennessee applicable to alcoholic beverages as now in effect or as they may hereafter be changed or amended including, without limitation, the local option liquor rules and regulations of the Tennessee Alcoholic Beverage Commission. (r) State Liquor Retailer's License means a license issued by the Alcoholic Beverage Commission of the State of Tennessee pursuant to Tenn. Code Ann. §57-3-201 et seq. permitting its holder to sell alcoholic beverages at retail in Tennessee. (s) Wholesaler means any person who sells at wholesale any beverage for the sale of which a license is required under the provisions of this chapter. (t) Wine means the product of normal alcoholic fermentation of juice of fresh, sound, ripe grapes, with the usual cellar treatment and necessary additions to correct defects due to climatic, saccharine, and seasonal conditions, including champagne, sparkling and fortified wine of an alcoholic content not to exceed twenty-one percent (21%) by volume. p. 280 REGULAR SESSION DECEMBER 10, 2018 PAGE -280- MINUTE BOOK 29 8-302. Selling and Distribution Generally. It shall be unlawful for any person to engage in the business of selling or distributing alcoholic beverages within the corporate limits of the city except as provided by Tennessee Code Annotated Title 57 and by the rules and regulations promulgated thereunder and as provided under this Chapter or any other Chapter of Title 8 of the Cleveland Municipal Code. 8-303. Licenses Required For Sale of Alcoholic Beverages at Retail. It shall be lawful for a licensee to sell alcoholic beverages at retail in a liquor store provided that such sales are made in strict compliance with all federal statutes, all state laws, rules and regulations, and all provisions of this chapter and any other applicable chapter and Charter of the City of Cleveland, Tennessee, and provided that such licensee has a valid and duly issued state liquor retailer's license and a valid and duly issued local liquor store privilege license from the city permitting the licensee to sell alcoholic beverages at retail. Transfer of any ownership right or interest in a license is prohibited. Possession of any alcoholic beverage by a licensee in any manner other than by retail sale is prohibited. 8-304. Licensee Responsible For Officers and Agents. Each licensee shall be responsible for all acts of such licensee as well as the acts of a co-licensee, and acts of the licensee's officers, employees, agents and representatives so that any violation of this Chapter or any other Chapter of Title 8 of the Cleveland Municipal Code, or any other Title or Chapter of the Cleveland Municipal Code or Cleveland City Charter, or of any law or regulation of the State of Tennessee or the Federal Government concerning alcoholic beverages by any co-licensee, officer, employee, agent or representative of a licensee shall constitute a violation of this chapter by such licensee. 8-305. Location of Liquor Store. It shall be unlawful for any person to operate or maintain a liquor store for the retail sale of alcoholic beverages in the City of Cleveland unless at a location approved by City Council. All such stores shall only be located within the Highway Commercial (CH) zoning district. Moreover, in no event shall such store be located within three hundred feet (300 feet) of any building used as a school or church. The minimum distance requirement from a church shall only be applicable provided a church service is held at the church premises at least on one day of each week. The minimum distance requirement from a school shall only relate to any public school operated by the City of Cleveland or Bradley County, Tennessee or a private school provided such school is licensed and accredited by the State of Tennessee to provide and is providing a kindergarten, elementary, or secondary education to students at the premises. The above minimum distance requirement from certain buildings shall be measured in a straight line between the nearest corner of the building proposed to sell alcoholic beverages and the nearest corner of the building from which there must be a minimum distance. No liquor store shall be located where the operation of a liquor store at the premises contemplated by an application would unreasonably interfere with public health, safety, or morals. 8-306. Requirements for Building Containing Liquor Store. No liquor store shall be located within a manufactured building as defined in this chapter. All liquor stores shall be located within a standalone building and not part of a strip mall or similar development. All liquor stores shall be located within a newly constructed building or within an existing building to be renovated or refurbished. The plans for any new building or for the renovation or refurbishing of an existing building must be approved by the City of Cleveland Development and Engineering Office and the Cleveland City Council. The front of the building must have a brick, stone or stucco façade. All liquor stores shall have substantial night light surrounding the outside of the premises so that the premises are fully illuminated at night, and all liquor stores shall be equipped with a functioning burglar alarm system on the inside of the premises. The liquor store display area shall be at least two thousand (2,000) square feet. Full, free and unobstructed vision shall be afforded to and from the street, public highway or parking lot to the interior of the liquor store by way of large windows in the front and to the extent practical to the sides of the building containing the liquor store. No liquor store shall be located except on the ground floor of the building, and it shall have one (1) main entrance opening on a public street, and such place of business shall have no other entrance for use by the public. All liquor stores shall be subject to p. 281 REGULAR SESSION DECEMBER 10, 2018 PAGE -281- MINUTE BOOK 29 applicable zoning, land use, building and safety regulations, as adopted within the Cleveland Municipal Code, unless specifically stated otherwise herein. 8-307. Restrictions Generally. (a) Certain devices and non-employee seating forbidden. No pool tables, televisions for viewing by customers, pinball machines, arcade gaming devices, including video games, jukeboxes or similar devices shall be permitted in any liquor store. No seating facilities, other than for employees of the liquor store, shall be permitted in any liquor store. (b) Time and Days of Operation. No liquor store shall sell, give away, or otherwise dispense alcoholic beverages except between the hours of eight o’clock a. m. (8:00 a.m.) and eleven o’clock p. m. (11:00 p.m.) on Monday through Saturday, and between ten o’clock a.m. (10:00 a.m.) and eleven o’clock p.m. (11:00 p.m.) on Sunday. The store may not be open to the general public except during regular business hours. No liquor store shall be open for business on Thanksgiving Day, Christmas Day or Easter. (c) Selling or Furnishing to Person(s) Below the Age of Twenty-one (21) Years, etc. It shall be unlawful for any licensee to sell, furnish or give away any alcoholic beverage to a person below the age of twenty-one (21) years, to a person visibly intoxicated, or to any person accompanied by a person who is visibly intoxicated. It shall be unlawful for any person under the age of twenty-one (21) years or a person who is visibly intoxicated to enter or remain in a liquor store or to loiter in the immediate vicinity of a liquor store. Employees with appropriate employee permits issued pursuant to state law who are age eighteen (18) years and older are permitted in a liquor store for the purpose of engaging in paid employment only. It shall be unlawful for a person below the age of twenty-one (21) years to misrepresent his or her age in an attempt to gain admission to a liquor store or in an attempt to buy any alcoholic beverage from a licensee. Any person selling alcoholic beverages within the City shall be required to have produced to the person selling the alcoholic beverages a facially valid Government issued identification showing that the age of the prospective purchaser of the alcoholic beverage is 21 years of age or older. If such identification is not produced by the prospective purchaser, the alcoholic beverage shall not be sold. Such identification shall be required prior to the sale of alcoholic beverages, regardless of the apparent age of the prospective purchaser. (d) Consumption on Premises of Liquor Store. It shall be unlawful for any licensee to sell any alcoholic beverage for consumption in such licensee's liquor store or on the premises used by the licensee in connection therewith. It shall be unlawful for any person to consume any alcoholic beverage in the immediate vicinity of the liquor store. Any consumption of an alcoholic beverage by any person in the liquor store shall be limited solely to the circumstances permitted and set forth in Tennessee Code Annotated 57-3-404 (h), or the Rules of the Tennessee Alcoholic Beverage Commission and any applicable federal law. (e) Advertising. There shall be no advertising signs of any kind whatsoever outside the building containing a liquor store, either for the liquor store or to advertise any matter pertaining to alcoholic beverages sold at liquor stores except as set forth herein. There may be placed on the front of a liquor store, but not extending therefrom over twelve inches (12"), a sign setting out the name of the liquor store. Such sign shall not exceed fifty (50) square feet in dimension. No such sign shall contain letters of neon or tube lighting so as to produce lighting within letters. No reader board or changeable copy signs shall be permitted. One (1) freestanding sign shall be allowed on the premises not to exceed one hundred forty four (144) square feet. No off-premises signs related to a liquor store shall be allowed within the city. No banner or temporary or permanent sign or other material shall be placed on or inside a liquor store so that it obstructs free and clear vision of the interior of the liquor store from outside of the liquor store. In addition, all liquor store signage shall be subject to applicable zoning, building, and safety regulations, as adopted within the Cleveland Municipal Code, unless specifically stated otherwise herein. p. 282 REGULAR SESSION DECEMBER 10, 2018 PAGE -282- MINUTE BOOK 29 (f) Off-Premises Business. All retail sales of alcoholic beverages shall be confined to the premises of the liquor store. No curb service is permitted, nor shall drive-in window service be permitted. This paragraph shall not be construed as to prohibit the solicitation by a state licensed wholesaler of any order from any licensed retailer at the licensed premises, nor shall it be construed to prohibit deliveries allowed by state law or by individuals who hold a valid delivery service license issued by the Tennessee Alcoholic Beverage Commission. 8-308. Fees. (a) Inspection Fee. Pursuant to Tennessee Code Annotated Section 57-3-501, there is hereby levied on each licensee an inspection fee of five percent (5%) on the wholesale price of any alcoholic beverages acquired by the licensee from any wholesaler or any other source. In the event of any subsequent amendments of Tennessee Code Annotated Section 57-3-501, the inspection fee shall be the maximum allowed by Section 57-3-501. (b) Collection. Collection of such inspection fee shall be made by the wholesaler or other source vending to the licensee from the licensee at the time the sale is made to the licensee, or at the time the retailer makes payment for the delivery of the alcoholic beverages. Licensee shall create and maintain all records specified in the State rules and regulations related to the purchase and sale of alcoholic beverages and preserve these records for a period of at least thirty six (36) months. In the event of co-licensees holding a single license, one (1) set of records per liquor store satisfies the requirements of this part. (c) Reports. Each wholesaler making sales to licensees located within the City of Cleveland shall furnish the City a report monthly, which report shall contain a list of the alcoholic beverages sold to each retailer located within the City, the wholesale price of the alcoholic beverages sold to each licensee, the amount of tax due, and such other information as may be required by the City. The monthly report shall be furnished the City not later than the 20th of the month following which the sales were made. The inspection fees collected by the wholesaler from the licensee shall be paid to the City at the time the monthly report is made. Wholesalers collecting and remitting the inspection fee to the City shall be entitled to reimbursement for this collection service, a sum equal to five percent (5%) of the total amount of inspection fees collected and remitted, such reimbursement to be deducted and shown on the monthly report to the City. Failure to collect or timely report and/or pay the inspection fee collected shall result in a penalty of ten percent (10%) of the fee due the City which shall be payable to the City. The City shall have the authority to audit the records of wholesalers reporting to it in order to determine the accuracy of such reports. The City shall have the authority to audit the records of the licensee in order to determine the accuracy of such reports related to the inspection fees. Nothing herein shall relieve the licensee of the obligation of payment of the inspection fee, and it shall be the licensee’s duty to see that the payment of the inspection fee for the licensee’s liquor store is made to the City Clerk on or before the 20th day of each calendar month for the preceding month. (d) Failure to Pay Fees. The failure of the wholesaler to pay the inspection fees and to make the required reports accurately and within the time required by this chapter may result in the suspension or revocation of the licensee's liquor store privilege license if it is determined by the City that the conduct of the licensee has resulted in the failure of the wholesaler to pay the inspection fees and to make the required reports. (e) Use of Fees. All funds derived from inspection fees imposed herein shall be used to defray expenses in connection with the enforcement of this chapter, including particularly the payment and compensation of officers, employees, and other representatives of the city in investigating and inspecting licensees and applicants and in seeing that all provisions of this chapter are observed. The City Council finds and declares that the amount of these inspection fees is reasonable, and that the funds expected to be derived from these inspection fees will be reasonably required for such purposes. p. 283 REGULAR SESSION DECEMBER 10, 2018 PAGE -283- MINUTE BOOK 29 8-309. Records Kept by Licensee. (a) Required Records. In addition to any records specified in the state rules and regulations, each licensee shall keep on file, at such licensee's liquor store, the following records: (1) The original invoices of all alcoholic beverages bought by the licensee; (2) The original receipts for any alcoholic beverages returned by such licensee to any wholesaler; (3) A current daily record of the gross sales by such licensee with evidence of cash register receipts for each day's sales; (4) An accurate record of all alcoholic beverages lost, damaged, or disposed of other than by sale and showing for each such transaction the date thereof, the quantity and brands of alcoholic beverages involved and the name of the person or persons receiving the same. (b) Duration. All such records shall be preserved for a period of at least thirty six (36) months. In the event of co-licensees holding a single license, one (1) set of records per liquor store satisfies the requirements of this part. 8-310. Inspections Generally. The City Manager, the City Clerk, the Chief of Police or the authorized representatives or agents of any of them are authorized to examine the premises, books, papers and records of any liquor store at any time the liquor store is open for business for the purpose of determining whether the provisions of this chapter are being observed. Refusal to permit such examination shall be a violation of this chapter and shall constitute sufficient reason for revocation of the local liquor store privilege license of the offending licensee or for the refusal to renew the local liquor store privilege license of the offending licensee. 8-311. Enforcement, Violations and Penalties. Any violation of the provisions of this chapter shall be punishable under the City’s General Penalty clause and in the discretion of the City Council, by any combination of a fine of up to fifty dollars ($50.00) per violation, or by temporary suspension or permanent revocation of the local liquor store privilege license where appropriate. Enforcement provisions are also applicable as found under State law. In addition to the above, the City Council may direct that the City Manager notify the Tennessee Alcoholic Beverage Commission of any violation of this chapter, together with a petition that the State liquor license be revoked, pursuant to Tennessee Code Annotated §57-3-101 et seq., and the rules and regulations of said commission. 8-312. Certificate of Compliance. As a condition precedent to the issuance of a state liquor retailer's license by the state alcoholic beverage commission, City Council may authorize the issuance of certificates of compliance by the city according to the terms contained herein. 8-313. Application for Certificate of Compliance and Local Liquor Store Privilege License. (a) Filing and Content. An applicant or applicant group for a liquor store shall file with the City Clerk a completed written application on a form to be provided by the City Clerk which shall contain all of the following information and whatever additional information the City Council or City Manager may require: (1) The name and street address of each person to have an interest, direct or indirect, in the liquor store as an owner, partner, stockholder or otherwise. In the event that a corporation, partnership, limited liability company or other legally recognized entity is an applicant or member of an applicant group, each person with an interest therein must be disclosed and must provide the p. 284 REGULAR SESSION DECEMBER 10, 2018 PAGE -284- MINUTE BOOK 29 information on the application provided by the city; (2) The name of the liquor store proposed; (3) A statement that the applicant has secured a location for the liquor store business which complies with all of the restrictions and conditions within this chapter and that the liquor store business is not prohibited at this location because of some other City of Cleveland Ordinance or state law. As a part of this statement the applicant shall provide the address of the proposed liquor store and its zoning designation; (4) A statement that the persons receiving the requested license to the best of their knowledge if awarded the certificate of compliance could comply with all the requirements for obtaining the required licenses under state law and the provisions of this chapter for the operation of a liquor store in the city; and (5) The agreement of each applicant or each member of an applicant group, as appropriate, to comply with all applicable laws and ordinances and with the rules and regulations of the Tennessee Alcoholic Beverage Commission with reference to the sale of alcoholic beverages and the agreement of each applicant or each member of an applicant group as to the validity and the reasonableness of these regulations, inspection fees, and taxes provided in this title with reference to the sale of alcoholic beverages. (b) Further Documentation. The application form shall be accompanied by a copy of each questionnaire form and other material to be filled out by the applicant or each member of the applicant group with the Tennessee Alcoholic Beverage Commission in connection with an Application for a state liquor retailer’s license , and with respect to the store location and building thereon shall be accompanied by five (5) copies of a scale plan drawn to a scale of not less than one inch equals twenty feet (1"=20') giving the following information: (1) The shape, size and location of the lot upon which the liquor store is to be operated under the license; (2) The shape, size, height and location of all buildings whether they are to be erected, altered, moved or existing upon the lot; (3) The off-street parking space and off-street loading and unloading space to be provided, including the vehicular access to be provided from these areas to a public street; and (4) The identification of every parcel of land within three hundred feet (300’) of the lot upon which the liquor store is to be operated indicating the ownership thereof and the location of any structures thereon and the use being made of every such parcel. (c) Signature(s). The application form shall be signed and verified by each person to have any interest in the liquor store either as an owner, partner, LLC member, stockholder or otherwise. (d) Misrepresentation, Concealment of Fact and Duty to Amend. If any applicant, member of an applicant group, or licensee misrepresents or conceals any material fact in any application form or as to any other information required to be disclosed by this chapter, such applicant, member of an applicant group, or licensee shall be deemed to have violated the provisions of this chapter and his or her application may be disregarded or his or her license restricted or revoked as deemed appropriate by City Council. Further, no sale, transfer or gift of p. 285 REGULAR SESSION DECEMBER 10, 2018 PAGE -285- MINUTE BOOK 29 any interest of any nature, either financial or otherwise, in a liquor store shall be made without first obtaining a replacement license from the city upon the approval of the City Council. (e) Fee. Each application shall be accompanied by a non-refundable one thousand dollar ($1,000) investigation fee. One (1) application fee per applicant group is sufficient. 8-314. State Required Certificate of Compliance. Pursuant to Tennessee Code Annotated Section 57-3-208, an applicant for a State liquor retailer’s license, as a condition precedent to the issuance of such license, shall submit with the application to the State Alcoholic Beverage Commission a Certificate of Compliance containing the information as stated in Tennessee Code Annotated Section 57-3-208. In issuing any Certificate of Compliance, the City Council, the City Manager and City Clerk will follow and comply with the guidelines and requirements as stated in Tennessee Code Annotated Section 57-3-208. The City Council will not consider any application until publication, at applicant’s expense, in a newspaper of general circulation in Bradley County, Tennessee, of the notice required by Tenn. Comp. R. & Regs. 0100-03-.09(10)-(11) has occurred. 8-315. Restrictions upon Issuance. (a) Certificates of Compliance. The City Council shall not issue a certificate of compliance unless the applicant has complied with all the requirements of State liquor statutes, the Rules & Regulations of the Alcoholic Beverage Commission, Tenn. Comp. R. & Regs. 0100- 03 and this Chapter. (b) No Violations of Chapter. No certificate of compliance shall be issued unless a license issued on the basis thereof can be exercised without violating any provisions of this Chapter. (c) Prerequisites of Issuance. The City Mayor, upon approval of City Council, shall not sign any certificate of compliance for any applicant or applicant group until: (1) An application has been filed with the City Clerk which complies with this chapter of the Cleveland Municipal Code and a showing has been made that the applicant has met all the conditions for a certificate of compliance as stated in Tennessee Code Annotated Section 57-3-208; (2) The notice required by Tenn. Comp. R. & Regs. 0100-03-.09(10)-(11) has been published and the public hearing noticed therein has been conducted; (3) The location stated in the certificate has been approved by the City Council as a suitable location for the operation of a liquor store; and (4) The application has been considered at a public meeting of the City Council and approved by a majority vote of the members present and voting. (d) Time Periods for Action. Any applicant or applicant group who has obtained a certificate of compliance as provided herein must open a liquor store in the city within twelve (12) months or, unless an extension is granted by City Council, said certificate will be revoked by the passage of this amount of time and a certification thereof will be sent to the Alcoholic Beverage Commission of the State of Tennessee and the Application for a local liquor store privilege license shall be considered canceled and revoked. 8-316. Consideration of Applications for Certificate of Compliance. In issuing certificates of compliance (which shall total no more than five (5) in the corporate limits) to enable the licensing of liquor stores in the City of Cleveland as presently permitted by this chapter, the City Council will consider all applications filed before a closing date to be fixed by City Council and select from such applications the applicants deemed by City Council, in its sole p. 286 REGULAR SESSION DECEMBER 10, 2018 PAGE -286- MINUTE BOOK 29 discretion, to have the qualifications required by law and this chapter and the most suitable circumstances for the lawful operation of a liquor store within the City of Cleveland, without regard to the order of time in which the applications are filed. Applications can only be submitted to the City during the time frame the City Council has set for receipt of such applications. Applications and all matters submitted with or as a part of such applications at the time they are submitted are the sole and exclusive property of the City of Cleveland and are considered public records open to public inspection. 8-317. License from City to Operate Liquor Store. After an applicant or applicant group receives a license from the State of Tennessee Alcoholic Beverage Commission to operate a retail liquor store pursuant to Tennessee Code Annotated Section 57-3-101, et seq in the City of Cleveland, Tennessee, the applicant or applicant group shall apply to the City Clerk for a local liquor store privilege license to operate a retail liquor store pursuant to the following terms, conditions, and restrictions. 8-318. Restrictions on Local Liquor Store Privilege Licenses. (a) Maximum Number of Licenses. No more than five (5) local liquor store privilege licenses for the sale of alcoholic beverages at liquor stores shall be issued under this chapter representing no more than five (5) liquor stores and no more than five (5) certificates of compliance in the City. There shall be no limit on the number of local liquor store privilege licenses issued within the City of Cleveland, Tennessee. (b) Term Renewal. Each license shall expire on December 31 of each year. A license shall be subject to renewal each year by compliance with all applicable Federal and Tennessee State statutes, rules and regulations and the provisions of this Chapter. (c) Display. A licensee shall display and post and keep displayed and posted licensee’s license in a conspicuous place in the licensee’s liquor store at all times. (d) Transfer. A licensee or co-licensee shall not sell, assign or transfer his or her license or any ownership interest therein. No license shall be transferred from one location to another location without the express permission of the City Council. (e) Fees. A license fee of one thousand dollars ($1,000.00) is due at the time of application for a local liquor store privilege license and annually prior to January 1 each year thereafter. The initial license shall remain in effect for the remainder of the calendar year when it is first issued so that the first year may not be a full year period. The license fee shall be paid to the city clerk before any license shall be issued. 8-319. Qualifications for and Restrictions Upon Licensees and Employees. (a) Initial Qualification. To be eligible to apply for or to receive a local liquor store privilege license, an applicant, or in the case of an applicant group, each member of the applicant group, must satisfy all of the requirements and conditions which must be shown and stated in the application submitted to the City Council to request a certificate of compliance with these requirements and conditions in 8-313 incorporated herein by reference and form a part of the qualifications which must be met by an applicant before receiving a local liquor store privilege license. In addition, before an applicant is eligible to receive a local liquor store privilege license, the applicant, or in the case of an applicant group, each member of the applicant group, must satisfy all of the other requirements of this chapter, the requirements of the Tennessee Alcoholic Beverage Commission, and all applicable Tennessee State statutes, rules and regulations for the holder of a liquor retailer's license. (b) Public Officers and Employees. No license shall be issued to a person who is a holder of a public office either appointed or elected or who is a public employee either national, state, county or city. It shall be unlawful for any such person to have any interest in such liquor store either directly or indirectly, either proprietary or by means of a loan or participation in the profits of any such business. This prohibition shall not apply however to uncompensated, p. 287 REGULAR SESSION DECEMBER 10, 2018 PAGE -287- MINUTE BOOK 29 appointed members of boards or commissions who have no duties covering the regulation of alcoholic beverages or beer. (c) Felons. No licensee shall be a person who has been convicted of a felony within ten (10) years prior to the time he or she or the legal entity with which he or she is connected shall receive a license; provided that this provision shall not apply to any person who has been so convicted but whose rights of citizenship have been restored or judgment of infamy has been removed by a court of competent jurisdiction. In case of such conviction occurring after a license has been issued and received, the license shall immediately be revoked if such convicted felon is an individual licensee and, if not, the partnership, corporation, limited liability company or association with which he or she is connected shall immediately discharge him or her and he or she shall have no further interest therein or else such license shall be immediately revoked. (d) Employee Felons. No licensee shall employ in the storage, sale, or distribution of alcoholic beverages any person who within ten (10) years prior to the date of his or her employment shall have been convicted of a felony. In the case that an employee is convicted of a felony while he or she is employed by a licensee at a liquor store, he or she shall be immediately discharged after his or her conviction provided that this provision shall not apply to any person who has been so convicted but whose rights of citizenship have been restored or judgment of infamy has been removed by a court of competent jurisdiction. (e) Liquor Offenses. No license shall be issued to any person who within ten (10) years preceding application for such license or permit shall have been convicted of any offense under the laws of this state or any state or of the United States regulating the sale, possession, transportation, storing, manufacturing, or otherwise handling of alcoholic beverages or beer. (f) Disclosure of Interest. It shall be unlawful for any person to have ownership in or participate in, either directly or indirectly, the profits of any liquor store unless his or her interest in such business and the nature, extent and character thereof shall appear on the application or if the interest is acquired after the issuance of a license unless it be fully disclosed to the City and approved by the City Council. (g) Age. No licensee shall be a person under the age of twenty-one (21) years and it shall be unlawful for any licensee to employ any person under the age of eighteen (18) years for the physical storage, sale or distribution of alcoholic beverages or to permit any such person under such age in his or her place of business to engage in the storage, sale or distribution of alcoholic beverages. (h) Interest in Only One Liquor Store. A person shall not have an interest, either directly or indirectly, in more than one (1) liquor store licensed under this title in the City of Cleveland. 8-320. Nature of License; Suspension or Revocation. The issuance of a license does not vest a property right in the licensee but is a privilege subject to revocation or suspension. Any license shall be subject to suspension or revocation by City Council for any violation of this Chapter or any Chapter within Title 8 of the Cleveland Municipal Code by the licensee or by any person for whose acts the licensee is responsible. The licensee shall be given reasonable notice and an opportunity to be heard before the City Council suspends or revokes a license for any violation unless provided otherwise specifically herein. If the licensee is convicted of a violation of any Chapter within Title 8 by a final judgment in any court and the operation of the judgment is not suspended by an appeal, upon written notice to the licensee, the City Clerk may immediately suspend the license for a period not to exceed sixty (60) days, and the City Council may revoke or suspend the license on the basis of such conviction thereafter. A license shall be subject to revocation or suspension without a hearing whenever such action is expressly p. 288 REGULAR SESSION DECEMBER 10, 2018 PAGE -288- MINUTE BOOK 29 authorized by other provisions of this Chapter stating the effect of specific violations. 8-321. Effect. This ordinance shall take effect upon passage on final reading, the public welfare requiring it. SECTION 2: Any Ordinance, Resolution, Motion or parts thereof in conflict herewith are hereby repealed and superseded. If any sentence, clause, phrase or paragraph of this Ordinance is declared to be unconstitutional by any Court of competent jurisdiction, such holding will not affect any other portion of this Ordinance. APPROVED AS TO FORM: /s/John F. Kimball ___________________________ City Attorney Kevin Brooks, Mayor ___________________________ Shawn McKay, City Clerk Councilman May moved that Ordinance No: 2018-30 be approved on first reading. The motion was seconded by Councilman Hughes; and upon roll call, unanimously passed. ANNOUNCEMENTS Mayor Brooks announced the following: Holiday Schedule: City offices will be closed as follows: • Monday, December 24, Tuesday December 25 and Wednesday December 26 for the Christmas Holiday. • Monday, December 31 and Tuesday, January 1 for the New Year’s Holiday. • Next City Council meeting will be held on January 14, 2019. There being no future business he meeting was adjourned at 5:43 p.m. _________________________________ ______________________________ Mayor City Clerk