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Min 03/07/1995 821 Wichita Falls,Texas Memorial Auditorium Building March 7, 1995 Items 1 & 2 The City Council of the City of Wichita Falls, Texas, met in regular session on the above date in the Council Room of the Memorial Auditorium Building at 8:30 o'clock a.m. , with the following members present: Michael Lam - Mayor Leon Mallonee - Councilors Terrance E. Loughry - Angus Thompson - Bill Daniel - J. W. Martin - Harold Hawkins - James Berzina City Manager Greg Humbach - City Attorney Lydia Torres - City Clerk Mayor Lam called the meeting to order. Invocation was given by Rev. Jim Goodwin, St. Marks United Methodist Church. Item 3a Jerry Wayne Harris, Fire Lieutenant Fire Department, was honored as Employee of the Month. Mayor Lam presented him with a plaque, City pin, theatre and transit tickets, dinner for two, and spending money. Mayor Lam proclaimed the month of March as "Professional Social Workers Month" and also as "Literacy Month" . Item 4 Moved by Councilor Martin that the minutes of the February 21, 1995 meeting be approved. Motion seconded by Councilor Thompson and carried by the following vote. Ayes: Mayor Lam, Councilors Mallonee, Loughry, Thompson, Daniel, Martin, and Hawkins Nays: None Items 5a-7c Moved by Councilor Thompson that the consent agenda be approved. Motion seconded by Councilor Mallonee and carried by the following vote. Ayes: Mayor Lam, Councilors Mallonee, Loughry, Thompson, Daniel, Martin, and Hawkins Nays: None 822 Item 5a RESOLUTION NO. 33-95 RESOLUTION TO APPROVE JOINT FUNDING AGREEMENT WITH U.S. GEOLOGICAL SURVEY FOR OPERATION AND MAINTENANCE OF STREAM FLOW AND RESERVOIR CONTENT GAUGING STATIONS Item 6a RESOLUTION NO. 34-95 RESOLUTION TO ACCEPT AS COMPLETE THE PROJECT TO INSTALL A 42" WATER TREATMENT LINE AT THE JASPER PLANT Item 6b RESOLUTION NO. 35-95 RESOLUTION TO ACCEPT THE CDBG COUNTRY CLUB PHASE III PROJECT, CHANGE ORDERS NO. ONE AND TWO AND AUTHORIZE FINAL PAYMENT TO BOBBIE D. HAYNES CONSTRUCTION CO. Item 7a Minutes of the meetings of the following boards and commissions were received. a. Wichita Falls Park Board, February 23 , 1995 b. Planning and Zoning Commission, February 8, 1995 c. Traffic Safety Commission, February 1, 1995 Item 10e was moved up in order to facilitate a flight schedule. Item 10e RESOLUTION NO. 40-95 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, AUTHORIZING THE MAYOR TO EXECUTE A TAX ABATEMENT AGREEMENT WITH FLEETWOOD ENTERPRISES, INC. ; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE WAS DISCUSSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. Mayor welcomed Fleetwood Enterprises, Inc. to our city and Mr. Morrie Antrim, Human Resources Manager for Fleetwood Enterprises, Inc. Mr. Antrim expressed, on behalf of their company, pleasure in becoming one of our city' s industrial families. Fleetwood Enterprises is one of the nation' s largest home builders, and is going to locate one of their factories in our city. They look forward to a long and lasting relationship with us and hope to be good industrial neighbors to everybody here. They plan to open for business about mid-summer and within a two year period plan to employ about 200-250 persons. He expressed his appreciation to everyone for their help in bringing them here. Moved by Councilor Martin that Resolution No. 40-95 be passed. Motion seconded by Councilor Mallonee and carried by the following vote: Ayes: Mayor Lam, Councilors Mallonee, Loughry, Thompson, Daniel, Martin, and Hawkins Nays: None 823 Item 8a A public hearing was held to determine whether the public convenience and necessity requires the operation of five additional taxicabs under the franchise of All American Cab Company. Mayor informed that there had been an application filed for five additional cabs and that requires a Public Hearing. Mayor declared the public hearing open. Claudio Ramirez, Jr. 302 Fillmore, Manager of All American Cab Company, stated that their business had increased with the City' s growth and the growth at Sheppard Air Force Base. With the number of permits we have we cannot handle both sides of the town. Our necessity is not to keep in competition with anyone else, but to serve the public and Sheppard Air Force Base and that is the reason we applied for five more. We are in need of these extra permits in order to put those vehicles out there. Councilor Martin commented that it is an unusual situation not to have any opposition from the other cab company and everybody is working in harmony. How could we disagree otherwise. There being no one else who wished to be heard, Mayor declared the public hearing closed. Item 8b Mayor informed that we have had an application from a Limousine Service franchise for four additional vehicles under that arrangement. Mayor declared the Public Hearing open. Jody Wade, 1606 Mesquite, stated that they are expanding and are putting in a service in Lubbock and also in Denton, and would like to be able to utilize vehicles from one town to another during peak periods. That is their reason for requesting additional vehicles. There being no one else who wished to be heard, Mayor declared the Public Hearing closed. Item 9a ORDINANCE NO. 17-95 ORDINANCE WAIVING SECTION 22-1(a) ( 9) OF THE CODE OF ORDINANCES TO PERMIT SIGNS AND RESERVATION OF LAND IN HAMILTON PARK MARCH 25, 1995 FOR AMERICAN CANCER SOCIETY. Moved by Councilor Thompson that Ordinance No. 17-95 be passed. Motion seconded by Councilor Mallonee and carried by the following vote. Ayes: Mayor Lam, Councilors Mallonee, Loughry, Thompson, Daniel, Martin, and Hawkins Nays: None Item 9b ORDINANCE NO. 18-95 ORDINANCE WAIVING SECTION 22-1 (a) ( 2) TO PERMIT DRIVING UPON THE GRASS FOR SPUDDER PARK INFIELD MAINTENANCE MARCH 1 - OCTOBER 31 , 1995. 824 Item 9b, cont'd. Moved by Councilor Hawkins that Ordinance No. 18-95 be passed. Motion seconded by Councilor Mallonee and carried by the following vote Ayes: Mayor Lam, Councilors Mallonee, Loughry, Thompson, Daniel, Martin, and Hawkins Nays: None Item 9c ORDINANCE NO. 19-95 ORDINANCE WAIVING SECTION 22-91 (H) OF THE CODE OF ORDINANCES TO PERMIT CONCESSION OPEN AND RENTER SALES :. DURING TOURNAMENT APRIL 7-9, 1995 AT THE SOFTBALL COMPLEX. Moved by Councilor Thompson that Ordinance No. 19-95 be passed. Motion seconded by Councilor Martin and carried by the following vote. Ayes: Mayor Lam, Councilors Mallonee, Loughry, Thompson Daniel, Martin, and Hawkins Nays: None Item 9d ORDINANCE NO. 20-95 AN ORDINANCE REZONING 2113 KELL BOULEVARD, 0. 51 ACRES OUT OF THE S.P.R.R. SURVEY, ABSTRACT 281, WICHITA FALLS, TEXAS, FROM MULTIFAMILY RESIDENTIAL TO LIMITED OFFICE; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. Moved by Councilor Thompson that Ordinance No. 20-95 be passed. Motion seconded by Councilor Martin and carried by the following vote. Ayes: Mayor Lam, Councilors Mallonee, Loughry, Thompson Daniel, Martin, and Hawkins Nays: None Item 9e A proposed ordinance to rezone 2803 Montgomery, Lot 2, Block 75, Faith Village III , Wichita Falls, Texas, from Single Family-2 to Limited Commercial (Case R95-03 ) was presented. Moved by Councilor Martin that proposed ordinance be passed. Motion seconded by Mayor Lam. Steve Catlin, applicant for the proposed rezoning of this vacant lot, addressed his request, and passed out a packet he had prepared for the Council. He mentioned that he had been able to meet with Councilors Loughry, Daniel and Martin previously, to discuss this matter. He said that included in the packet was a brief sketch of his proposed building. The map indicates that this building faces the southwest back corner of the current Pier One Imports business on Kemp Blvd. I am 825 Item 9e, cont'd. proposing to build a private insurance office on this site providing rezoning to limited commercial status today is approved. He gave the composition of the building which he stated would very much resemble many of the neighboring homes. This lot has approximately 10,400 sq. ft. and will more than accommodate his 2, 100 sq. ft. office, and will comply with all set back requirements. Also, for your information, this lot currently borders existing limited commercial zones to the east and to the north. A Single Family zone borders this property to the west and to the south. When rezoning is approved, this property will be an extension of existing Limited Commercial Zone. On February 8, the Planning and Zoning Commission raised basically three concerns for this property. 1) A potential traffic concern could exist if there is no entrance from Kemp Blvd. 2) Results of letter to property owners in a two hundred foot radius with response of 33% opposed, 31% approved, 36% no response. 3 ) This property could be sold in the future and a less desirable business could locate on the property. Also, if businesses had a Kemp Street entrance the neighbors would feel they had a buffer between the business and the residences. Based on above concerns Planning & Zoning voted to disapprove rezoning of this lot. Objections were not brought up until after discussion to the audience had been closed, therefore, these items were not addressed at that time. Mr. Catlin assured Council that at the most he would have a total of six customers per day and even if that doubled, it would not pose a traffic problem. In regards to the buffer, this has already been eliminated because already in that neighborhood exists a barber shop, pawn shop, car wash, etc. and all within a five block area. One half block south of this proposed rezoning at the intersection of Kemp and Quill an existing business named Computerland borders residential property to the north and west and has no entrance from Kemp, and as a retail business probably has more customers come and go than my own agency. Three blocks north of proposed rezoning there is another business, Management Consulting, located directly behind Discount Tire at intersection of Wolf and Elliott. This business has no paved parking area, resulting in customers parking in the street. Also there is no privacy fence to distinguish between the business and residential areas. He addressed a question Councilor Daniel had put to him in regards to how Mr. Catlin would feel if he was one of the property owners and someone else was making the proposal. Mr. Catlin replied that he would want progress to happen. He said that with a six foot privacy fence and landscaping requirements, he would feel his property would have greater value after this office was built than before, since it is presently a vacant lot. In regards to there being a less desirable business going in there in the future, Mr. Catlin stated that he had been operating his business at the same location for the past six years. Any good insurance carrier and its representatives need to reflect stability and trust in order to attract and keep customers. I can not be moving from place to place and keep my clientele. My final concern was the owner ' s concern, Mr. R. E. Gatlin. He has tried for many years to sell this property as private residential use and has had no success in doing so. He has hired a real estate firm to sell it. A client of mine has sold a 2000 sq. ft. brick veneer home located one and three quarters block to the west and one block north for $59,000 . This house in any other area of the city would sell for a lot more based on square footage. Based on this, this lot currently is a liability and not an asset. out of twenty letters sent out by the Planning & Zoning, I contacted five people and they had no objections. As a matter 826 Item 9e, cont 'd. of fact two of those five told me they thought a no response meant no objection to the proposed building. Councilor Hawkins commented that Planning & Zoning did not take it lightly to vote it down. In regards to the computer business bordering on the north and east of the Single Family Residence, there are streets that separate that business from Single Family Residence and the computer store, and that is the example Planning & Zoning is looking at. Planning & Zoning recommended to disapprove this request and I will support their recommendation. Councilor Loughry did not feel he could overlook the four or five people who objected even though he agreed with Mr. Catlin that all that was there was a concrete slab. It may never develop into a house being built there, but I just hate to have these people blind sighted with putting in commercial property next to them. Councilor Martin said he had looked at the property and could not see any traffic congestion and if anything it would be an improvement to the neighborhood. That whole area is destined to become commercial somewhere down the line. Councilor Daniel mentioned that we were not discussing code enforcement at this point, but rezoning a tract, and maybe we should raise the issue of rezoning an entire area instead of lot by lot. Mr. Clark stated that because of the objections of the neighborhood, a 3/4 single majority vote by Council was required to pass this. Mayor said he was in favor of rezoning the area. He felt that an insurance office built in a residential manner would only improve the property. Councilor Thompson stated that it had been the trend of the Council to support the home owners and to support the value of their property and he had always voted in that fashion and he would probably do that today. Mr. Catlin clarified to Councilor Mallonee that he was not the owner of the property at this time but Mr. Gatlin was the owner. Motion failed by following vote. Ayes: Mayor Lam, Councilors Mallonee, and Martin Nays: Councilors Loughry, Thompson, Daniel, and Hawkins Item 9f ORDINANCE NO. 21-95 AN ORDINANCE REZONING 1901 TURTLE CREEK ROAD, 12. 168 ACRES OUT OF THE ROBERT EVANS SURVEY, ABSTRACT 74, r . WICHITA FALLS, TEXAS, FROM PLANNED UNIT DEVELOPMENT TO SINGLE FAMILY-1; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. Councilor Thompson stepped out of the Council chambers. Moved by Councilor Martin that Ordinance No. 21-95 be passed. Motion seconded by Councilor Hawkins and carried by the following vote. 827 Item 9f, cont'd. Ayes: Mayor Lam, Councilors Mallonee, Loughry, Daniel, Martin, and Hawkins Nays : None Item 9g ORDINANCE NO. 22-95 ORDINANCE APPROVING AN INCREASE TO THE NUMBER OF AUTHORIZED TAXICABS FOR ALL AMERICAN CAB COMPANY Moved by Councilor Martin that Ordinance No. 22-95 be passed. Motion seconded by Councilor Mallonee and carried by the following vote. Ayes: Mayor Lam, Councilors Mallonee, Loughry, Daniel, Martin, and Hawkins Nays: None Item 9h ORDINANCE NO. 23-95 ORDINANCE APPROVING AN INCREASE TO THE NUMBER OF AUTHORIZED SPECIAL SERVICE VEHICLES FOR PRESIDENTIAL LIMOUSINE Moved by Councilor Martin that Ordinance No. 23-95 be passed. Motion seconded by Councilor Mallonee and carried by the following vote. Ayes: Mayor Lam, Councilors Mallonee, Loughry, Daniel, Martin, and Hawkins Nays: None Councilor Thompson returned to the Council chambers. Item 9i ORDINANCE NO. 24-95 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, AMENDING SECTION 29-29 OF THE CODE OF ORDINANCES TO REWORD THE AGE REQUIREMENT FOR VEHICLES WHICH ARE LEFT INOPERABLE ON PUBLIC PROPERTY THAT NEED TO BE REMOVED OR IMPOUNDED BY THE POLICE DEPARTMENT; REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR PUBLICATION; PROVIDING FOR AN EFFECTIVE DATE; AND FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE WAS DISCUSSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. Moved by Councilor Martin that Ordinance No. 24-95 be passed. Motion seconded by Councilor Hawkins. Councilor Loughry commented that a five year old car is just a 1990 model and if it would be sitting on the street for more than 48 hours it would be impounded and hauled off whether inoperable or not. I cannot go with that. It puts someone in the situation where if they went out of town for two days on a weekend and left their car on the street it would not be there when they returned. I would like to leave the ordinance like it is. Why would three years make a difference. Chief Harrelson 828 Item 9i, cont'd. responded that this needed to be changed in order to bring this ordinance in compliance with State law. Councilor Hawkins asked if it was possible to put some wording in there so that this would change along with the State without having to do this again. City Attorney responded that this is just one section of the ordinance and the only thing we are changing is one word, the 8 to a 5. I do not recommend that you automatically put the language in each of your ordinances that would always comply with State law because there are many instances when City law could be more stringent than State law and you want flexibility. Motion carried by the following vote. Ayes: Mayor Lam, Councilors Mallonee, Loughry, Thompson Daniel, Martin, and Hawkins. Nays: None Item 9j ORDINANCE NO. 25-95 AN ORDINANCE PROVIDING FOR THE ASSESSMENT AND COLLECTION OF A HOTEL AND MOTEL OCCUPANCY TAX; PROVIDING FOR EXEMPTIONS; PROVIDING FOR COLLECTION AND REPORTS CONCERNING THE TAX; PROVIDING FOR THE MAKING OF RULES AND REGULATIONS BY THE DIRECTOR OF FINANCE; PROVIDING FOR A PENALTY AND AN EFFECTIVE DATE. Moved by Councilor Martin that Ordinance No. 25-95 be passed. Motion seconded by Councilor Mallonee and carried by the following vote. Ayes: Mayor Lam, Councilors Mallonee, Loughry, Thompson, Daniel, Martin, and Hawkins Nays: None Item 10a RESOLUTION NO. 36-95 RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO A CONTRACT WITH JOHN DORSEY AND ASSOCIATES TO CONDUCT A MANAGEMENT INFORMATION SYSTEM STRATEGIC PLAN Jim Dockery informed that Staff had gone through a very thorough search and unanimously recommended John Dorsey and Associates. Moved by Councilor Martin that Resolution No. 36-95 be passed. Motion seconded by Councilor Thompson and carried by the following vote. Ayes: Mayor Lam, Councilors Mallonee, Loughry, Thompson, Daniel, Martin, and Hawkins Nays: None Item 10b RESOLUTION NO. 37-95 RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO A CONTRACT WITH MUNICIPAL SERVICES BUREAU FOR THE COLLECTION OF OUTSTANDING MUNICIPAL COURT FINES 829 Item 10b, cont'd. Moved by Councilor Thompson that Resolution No. 37-95 be passed. Motion seconded by Councilor Mallonee. Councilor Hawkins asked if another person was added on staff at the Municipal Court, would there still be as much of a need for this; could that one person have helped us collect more money? City Manager responded that several different things have been tried. A history review shows that we have hired marshalls to do this and had mixed results. We have staffed up and staffing gets absorbed with the expanded number of the police as the work load of the court picks up. The staffing which was hired to do this gets soaked into the normal operation. We will not utilize this service until every local effort has been made to collect, which means about a 60 day period. The local staff is best utilized during that first 30- 60 day period, then we can turn it over to the collection agency. Motion carried by the following vote. Ayes: Mayor Lam, Councilors Mallonee, Loughry, Thompson, Daniel, Martin, and Hawkins Nays: None Item 10c RESOLUTION NO. 38-95 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, DECLARING THE PROPERTY AT 1225 MIDWESTERN PARKWAY AS EXCESS AND DIRECTING THE LAND TO BE SOLD BY SEALED BIDS; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE WAS DISCUSSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. Moved by Councilor Martin that Resolution No. 38-95 be passed. Motion seconded by Councilor Thompson and carried by the following vote. Ayes: Mayor Lam, Councilors Mallonee, Loughry, Thompson, Daniel, Martin, and Hawkins Nays: None Item 10d RESOLUTION NO. 39-95 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, DETERMINING THE NECESSITY FOR ACQUISITION OF PROPERTY FOR UTILITY RELOCATION FOR THE MCGRATH CREEK PROJECT, APPROVING THE APPRAISALS, SETTING JUST COMPENSATION, AND AUTHORIZING PURCHASE OR CONDEMNATION; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE WAS DISCUSSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. Moved by Councilor Martin that Resolution No. 39-95 be passed. Motion seconded by Councilor Thompson and carried by the following vote. Ayes: Mayor Lam, Councilors Mallonee, Loughry, Thompson, Daniel, Martin, and Hawkins Nays: None 830 Item lla RESOLUTION NO. 41-95 RESOLUTION AUTHORIZING CHANGE ORDER NO. 1 TO A CONTRACT WITH ELECTRA CONSTRUCTION COMPANY, INC. FOR THE NORTH SITE GRADING AND PARKING PROJECT FOR THE MULTI-PURPOSE EVENTS CENTER COMPLEX Moved by Councilor Thompson that Resolution No. 41-95 be passed. Motion seconded by Councilor Martin and carried by the following vote. Ayes: Mayor Lam, Councilors Mallonee, Loughry, Thompson, Daniel, Martin, and Hawkins Nays: None Item llb RESOLUTION NO. 42-95 RESOLUTION AUTHORIZING CHANGE ORDER NO. 1 TO A CONTRACT WITH PALCO MECHANICAL CONTRACTORS, INC. FOR THE PLUMBING AND MECHANICAL WORK AT THE EXHIBIT HALL OF THE MULTI-PURPOSE EVENTS CENTER COMPLEX Moved by Councilor Martin that Resolution No. 42-95 be passed. Motion seconded by Councilor Mallonee and carried by the following vote. Ayes: Mayor Lam, Councilors Mallonee, Loughry, Thompson, Daniel, Martin, and Hawkins Nays: None Item llc RESOLUTION NO. 43-95 RESOLUTION AUTHORIZING CHANGE ORDER NO. 1 TO A CONTRACT WITH WICHITA RESTAURANT SUPPLY, INC. FOR FOOD SERVICE EQUIPMENT AT THE AGRICULTURAL CENTER OF THE MULTI-PURPOSE EVENTS CENTER COMPLEX Moved by Councilor Martin that Resolution No. 44-95 be passed. Motion seconded by Councilor Daniel and carried by the following vote. Ayes: Mayor Lam, Councilors Mallonee, Loughry, Thompson, Daniel, Martin, and Hawkins Nays: None Item lld RESOLUTION NO. 44-95 RESOLUTION APPROVING CHANGE ORDER NO. 2 TO THE CONTRACT WITH THE BUCHANAN CONSTRUCTION COMPANY FOR CONSTRUCTION OF THE AGRICULTURAL COMPLEX OF THE MULTI- PURPOSE EVENTS CENTER Moved by Councilor Martin that Resolution No. 44-95 be passed. Motion seconded by Mayor Lam and carried by the following vote. 831 Item 11d, cont'd._ Ayes: Mayor Lam, Councilors Mallonee, Loughry, Thompson, Daniel, Martin, and Hawkins Nays: None Item 11e RESOLUTION NO. 45-95 RESOLUTION AUTHORIZING CHANGE ORDER NO. 1 TO A CONTRACT WITH JALYN CONSTRUCTION, INC. FOR A STORM SEWER RELOCATION PROJECT FOR THE MULTI-PURPOSE EVENTS CENTER COMPLEX Moved by Councilor Martin that Resolution No. 45-95 be passed. Motion seconded by Councilor Mallonee and carried by the following vote. Ayes: Mayor Lam, Councilors Mallonee, Loughry, Thompson, Daniel, Martin, and Hawkins Nays: None City Council recessed for ten minutes at 9: 35 a.m. and then went into Executive Session to discuss a pending lawsuit (Jaco, et el, vs. City of Wichita Falls) in accordance with Section 551. 071 of the Texas Government Code. City Council reconvened at 10: 30 a.m. Item 12a A discussion of the City' s Smoking Ordinance was held. Mayor stated that the Restaurant Association had requested to present an alternate petition and he allowed their representative to make the presentation. Greg Stockton, 2614 San Simeon, President of North Texas Restaurant Association, stated that this was a highly emotional ordinance and has had a lot of publicity. It has been a difficult issue for Wichita Falls. You have the current ordinance with changes stricken out and our proposed changes underlined. This basically mirrors the 1993 Corpus Christi Smoking Ordinance. The North Texas Restaurant Association supports the amended ordinance. We feel it better meets the needs of our city in tourism and in convention business. He mentioned Backstage Restaurant and the catering it loses because it is non-smoking. That comes back to convention and tourism which could be hurting, and he hopes this is looked into. He asked that Council consider rescinding the current ordinance and possibly setting up a commission made up of both sides and others such as from the Convention and Visitors Bureau, from restaurants, hotels, etc. , to work up a compromise that will work for the whole City. Councilor Loughry asked why he had waited until now to come forward. Mr. Stockton replied that it was an error on the Restaurant Association' s part that possibly they did not look at it diligently enough when contacted by the non-smoking coalition and they possibly did not feel that it would pass. He explained that November and December are busy months in the restaurant business and the Restaurant Association does not meet, therefore, it was difficult to organize at that time and we made a mistake. After that, we realized something needed to be done, and we tried working at it from the angle of amending the ordinance. We are not against it but we are trying to find a compromise and take care of the majority and of our patrons. 832 Item 12a, cont'd. Councilor Mallonee asked if the changes they had made were in existence in the Corpus Christi Ordinance. Mr. Stockton stated that they were very close to this and it is also very close to what the State Restaurant Association is trying to pass now. Councilor Thompson reminded Mr. Stockton that when the Ordinance was passed the Mayor had mentioned it would be brought back, reviewed and amended to take into consideration bowling alleys, pool halls, bars and places of that nature. That was our intent and we intend to do that. I hope that we can all come together and do what is best for Wichita Falls to amend this and make it palatable and make it something we can live with. I am sure in the end that those who have the common interest at heart will come together. I wish the Restaurant Association had been in a little earlier, but we will come together and try to amend it so we can live together. Councilor Martin commented that Council did mention when the Ordinance was passed that they were willing to look for modifications to fine-tune the Ordinance. However, he was not in favor of rescinding the Ordinance. He was of the opinion that the current Ordinance could be worked towards modifications to the acceptance of all parties. All interested groups could work together to come up with a compatible solution. He was in agreement with some of the proposed amendments with some changes, however, he was against rescinding the current Ordinance. He mentioned a possible ninety day delay on the Ordinance until an acceptable solution was agreed to. Mayor asked for comments from the Council on the amended ordinance presented today. Councilor Martin suggested putting a ninety day delay and work on it and then make a presentation to the Council on proposed amendments. Councilor Hawkins commented that the Federal Court was going to put a delay on it for us. He does not endorse smoking or smokers; he is here for the City. He would hate to see this problem go to the U.S. Supreme Court to find out we are wrong. We have a group of zealots who would like to outlaw smoking and that is within their rights. We have a group of citizens who smoke and that is within their right. We have created the most comprehensive, stringent smoking ordinance in the state of Texas with the least enforceability. We are probably becoming the laughing stock of the cities that do have decent and comprehensive smoking ordinances. We could go back where the Ordinance was first presented and embrace the Restaurant Association, and the smokers and try to work a program that the majority can live with. What we have here is a very sad case of government intervention. I would not be for enacting this change and am not supporting taking it to a vote. I am asking to repeal this Ordinance and go back to set it so we can get something we can live with. Mayor allowed both sides to select two spokespersons from each group. Larry Brumbelow, 5127 Deer Creek, clarified his group' s position. He is the duly appointed spokesman for the Citizens Rights Support Group of Wichita Falls. They are an association of citizens organized for the purpose of securing democratic freedoms for its members and citizens of Wichita Falls thru the promotion of governmental accountability and citizens ' participation. We come with a mandate from some 4200 registered qualified legal voters. This is not a smoking issue. Our petition and our stand has been the right to vote on this issue and it will remain so. The first item I would like to discuss today is how can discussion be going on matters of amendments or any other motions in this matter when litigation has begun that calls into question at the federal level this ruling' s very constitutionality. There have been personal interpretations made of the city charter law that have questions of validity yet 833 Item 12a, cont'd._ to be determined under state and federal standards. Such as combining two separate paragraphs under Sections 48 and 49 of the City Charter to give powers to the City Clerk' s office that exceed powers allowed under situated statutes at state and federal level. Mr. Brumbelow mentioned statements which had been made recently by Mr. Stockton and the Restaurant Association calling the Ordinance "economically suicidal, restrictive, and detrimental to business without severe changes" . He questioned where they were when this Ordinance was first passed. Next, in regards to their amendments, where is their petitions and their signatures for such moves. Mr. Stockton speaks for the Restaurant Association, is that 50 or 100 individuals? We are the only group with the numbers on the table here. What gives 100 restaurant owners a larger voice than 4200 registered qualified voters. If there are amendments for those people to accommodate, we want to know where are the amendments for the beauty shop owners, the garage owners, the photo studios and other multiple businesses within Wichita Falls. Amend for everyone and it brings you back to the original Ordinance. Fair is fair, equality under the law. We feel this Ordinance is a bad thing. Amending with the intent to modify is still a question. What makes just a little bit less of a bad thing good. We made a commitment to carry 4200 voices to the polls, and this group and its leaders will not relinquish until they are heard loud and clear. He mentioned that there were allegations by the Tobacco Awareness Coalition directed at the Citizens Rights Support Group. These allegations in a campaign with threats of legal reprisals and actions received extensive media coverage. He stated that there are no legal actions against the Council individually, nor requests for damages incurred, only fees and costs are party to the action. There are thousands of legally registered voters who will have a voice in this matter. This matter now stands in litigation, accounting will proceed, motions on this matter will cease, the Charter will comply to federal standards; choice will be given back to the people and voters on this petition will remember quite well how they were handled on this matter, on that you can rely. Mayor asked if their group' s position was still that they wanted to call for a vote on the Ordinance passed. Mr. Brumbelow replied that when their people signed this petition it was to either rescind this or take it to a vote. Because of the concreted position stated that this would not be rescinded, we see the compromise on this as the vote and we stand firmly on the vote in this matter. Councilor Hawkins asked Mr. Brumbelow if it was rescinded would they still want it to go to a vote. Mr. Brumbelow responded that that was something they would have to go to council for. He is only the spokesman, but if it were rescinded it would find major favor with a lot of people. Councilor Hawkins stated that he had been told time and time again that they did not want a rescission, they wanted a vote on it. It is my understanding from those I have talked to out there that they want it rescinded. Vote is the alternative. Mr. Brumbelow said that this was their original position to rescind it or a vote. After point after point that there was made that there was no intent and no possibility of rescinding, we called for the next best measure and we really feel from the very beginning that this should have gone to the people. Sherry Cannedy, 1481 Wranglers Retreat, is representing Tobacco Awareness Coalition, who originally made the proposal to City Council to ask them to pass a smoking ordinance in the interest of public health. She too questioned where the 834 Item 12a cont'd. Restaurant Association had been the past three and a half months. She said they had been told by the Restaurant Association that they had decided not to take a stand on this issue because they could not come to a general consensus among their members. They stood on the sidelines and said and did nothing. Where were they when the Council was taking the heat from the opposition. Where were they when the Coalition was being crucified in the media and being called such names as do- gooders, fanatics, zealots, and Ulrich' s cult. Where were they when the Mayor was being subjected to a recall election because of his stand on this issue. While the participants were all working hard and taking all the heat, the Restaurant Association was sitting back watching, avoiding all confrontation. Now, three and a half months later, they come asking for the whole ordinance to be changed. The ordinance they proposed today does not represent an amendment and it does not represent a fine tuning. Instead, it represents a whole new ordinance which puts us back to where we were before the Ordinance was passed in December. That Ordinance had two major tenets; one was protection of workers at their worksite from second hand smoke and second was protection of the public in public places. In their ordinance today they are asking for elimination of restaurants from participating in the second tenet of the ordinance and to go back to doing smoking areas, which does not provide protection from second hand smoke. The smoke still diffuses to fill uncontained spaces in restaurants. The reason they selected the Corpus Christi ordinance is because it is the weakest ordinance in the state. The Restaurant Association has been a very positive force in our city for a long time. We applaud their efforts to continually improve their industry in the many fine restaurants in Wichita Falls which we all support. We are not challenging the organization, we are challenging their tactics on this issue. The Coalition feels that the Restaurant Association had their chance to present their case and they chose not to. We followed the established process, fought hard for the ordinance and took the heat along with the Council that comes with any change. They did not. The ordinance was passed. The petition has evidently failed. The process is complete. We ask you not to allow this hard fought health ordinance to be amended into ineffectiveness and its enactment delayed by political maneuvering. We ask the Council to take action and do something to get us off the fence and get about the business of the City in a healthier environment. Dr. Kent Ulrich, 2209 Berkely, spokesperson for the Tobacco Awareness Coalition. We have heard several aspects of the smoking ordinance this morning. We need to re-focus on the crucial issue here which is the second hand smoke represents a health hazard to the community. That was the paramount principle that the Coalition kept in mind in the development of this Ordinance and its presentation to you. We do not have to belabor the deleterious effects of tobacco use. Those are well known, well established scientific facts in terms of any cancer, emphysema, cervical cancer, etc. That data is irrefutable and there was no discussion this morning counteracting the scientific evidence indicating that second hand smoke was deleterious. Dr. Ulrich gave figures and data on the risks and hazards and effects of second hand smoke. He mentioned cases against the tobacco companies for the deleterious effects of tobacco use. We need to keep in mind that there are deleterious effects of second hand smoke. I feel compelled to respond to other issues such as the reference made by the Citizens Rights Group about our complaint given to the District Attorney. That is not malicious in nature and we are not asking anyone to go to jail. The State does set definite Election Code requirements and we are asking that the Citizens Rights Group comply with those requirements. One additional issue is that the Tobacco Awareness Coalition does not support the Citizens Rights Group' s lawsuit, 835 Item 12a, cont'd. but we believe the injunction attached to that lawsuit prohibiting enforcement is not in the best interest of the health of our community. We offer for Council consideration as an option that the Ordinance passed in December be placed on the ballot in May for a vote. However, we suggest that the Citizens Rights Group' s injunction prohibiting enforcement of the Ordinance be dropped, allowing enforcement after that election. What is done in the interim as far as enforcement, some practicality would have to be done there. Certainly if a task force was created by the Council for additional input in any manner, we would gladly participate in that matter. Mayor restated that the Tobacco Awareness Coalition is agreeable to placing this issue on the May ballot. Dr. Ulrich replied affirmatively and clarified that it was the ordinance which was passed in December. Councilor Thompson asked Dr. Ulrich if they would be opposed to the amendments in the Ordinance of bars and bowling alleys. Dr. Ulrich replied that they would have to look at those and discuss them. He said they would not want to end up with a Corpus Christi Ordinance, but they would be willing to look at the amendments and discuss them. Mayor asked Dr. Ulrich what their position would be on a 120 day moratorium on the Ordinance passed in December with a task force of their group, the Restaurant Association and others to see if there is any common ground that can be arrived at or to explore the possibilities. Mayor asked Dr. Ulrich if they would be amenable to that. Dr. Ulrich said they would not have a problem with that and would be in support of it. City Attorney mentioned that if the Ordinance was put on the ballot, according to our Charter it would automatically be put in abeyance. Paul Jaco, 2921 Featherston, stated that the Citizens Right Group did not have anything to do with the recall on the mayor. He did that personally. He wanted to know since the Tobacco Awareness Coalition brought this Ordinance to the Council, where was their initiative petition. Mayor clarified that law does not require a petition to bring an ordinance forward. Mr. Jaco stated that the Tobacco Awareness Coalition had said their petition drive of the last signatures turned in was bad and he had not been notified of that. Mayor stated that it had just been turned in and the process was not complete yet. Mr. Jaco stated that it had been brought to his attention that someone had intentions of serving papers on him for starting a political pack, but he has not started one. However, he can be served at 2921 Featherston. He said he had started this for the right to vote and he believes in the right to vote. In regards to the Restaurant Association' s amendments, they should wait until the Citizens Rights Group' s drive is over before they mention any of it. We have it filed in court at the present time and we ought to go from that point. Mayor asked Mr. Jaco that assuming an ordinance could be arrived at on some basis, what would his group' s position be. Would your group want to vote on it? Mr. Jaco replied that he believed the people who signed the petition spoke for themselves. They either wanted it rescinded or put to a vote, and everybody said it is not going to be rescinded so I think we should vote on it. I also think we should go on with the lawsuit of the constitutionality of the Charter and validity of the signatures turned in. Mayor stated that basically both groups are saying they are willing to submit this to the population for a vote. There is agreement on both sides of that issue. 836 Item 12a, cont'd. Councilor Martin asked if this were put to a vote and the Ordinance was upheld would the Council then have authority to make any amendments. City Attorney said he did not know and would have to research that. From a practical stand point, once an issue is voted on it makes it very difficult, politically, to make any changes because people have expressed their opinion. Mayor asked the Council if they would want to direct staff to place this item on the next Council agenda as an action item in order to vote whether to put it on the May ballot or to table it. It was the consensus of the Council that this item be placed on their next agenda for action. Mayor stated that in the meantime we would continue processing the supplement petition and would continue defending our position in the courthouse. Item 12b William C. Young, 1018 Widows Lane said if the Charter were amended all this would be avoided. He charged Councilor Thompson, as leader representing the minority community, to sponsor amending the Charter in the May election. You would avoid a lot of heartache and a lot less lawsuits. He said that the U.S. Attorney General ' s office had informed him that should he file this they will proceed with it and the City, of course, is subject to compensatory damages and attorney fees as well as court costs. I would rather see the Council do it; I don' t want to see Washington get involved in it, but if it is the only recourse. I am asking, Councilor Thompson, that you sponsor this change, and you will find out that this would stop a lot of your trouble. Mayor asked for the avenue of proof that someone is disabled; is it an affidavit or what? Mr. Young replied that they have to have proof in order to get disability license tags. He said a medical doctor determines disability. Also, there are physical signs, such as missing or crippled limbs. Mayor commented that that was a good example, but he still did not know whether that was a criteria under the law that someone is disabled. Mr. Young replied that criteria under the law as far as he could understand was not being able to perform everyday activities the same as someone who is totally able. Mayor commented that then you are someway declared disabled. Councilor Martin asked the City Attorney if the Charter could be amended to include assistance for a disabled person for filing a petition just as is done during the election process. City Attorney stated that under the Americans With Disabilities Act, a person has to disclose the fact they have a disability; that they need assistance. Then you have to provide what is known as reasonable accommodation. Reasonable accommodation may be someone else filling in what is required by the Charter, but they need to identify themselves as being disabled and ask for assistance. The City has not circulated this petition, the petitioners have. If someone is disabled and cannot fill out the petition, it is the petitioners ' responsibility to tell the signer if they are unable to fill out all the information in their own handwriting, then the petitioners can provide reasonable accommodation, and come to the City Clerk' s office and let the Clerk know why the person needs assistance. Then we would have the responsibility to accept that signature. Councilor Hawkins stated that it would be morally right if we put on the May ballot to bring our City Charter in accordance to State law in that respect. Mayor commented that Mr. Young said he was going to sue us to get it on there. 837 Item 12b, cont'd. Councilor Hawkins said he would like to have an ordinance or whatever is needed at the next meeting to discuss whether or not to put that as a vote item on the May election. Councilor Thompson stated that the City Attorney would take all the information and prepare a memo to Council as to what can be included and if it should go on the ballot. City Manager suggested that if Council is looking at changing that Charter requirement, that they also think about a number of petition names they may want to put in there. Mayor and several Councilors mentioned that today they were only discussing the Charter to make sure it complied with Americans With Disabilities Act. City Attorney brought up the argument that State law also requires signer' s signature in their own handwriting, therefore, it also would violate Americans With Disabilities Act. Councilor Hawkins said he thought there was also a provision for assistance there and he asked the City Attorney to look into that. Councilor Daniel told Mr. Young that at the opening of his conversation he had essentially threatened the Council with a lawsuit, and that implies an unwillingness on the part of the Council not to deal with this issue. I would like to point out that this Council has already discussed, individually, a need for this and I want the people to know that there is a desire and willingness on behalf of the Council to address this and make whatever changes there are. There is no need for a threat. Mr. Young said he was not going to do it unless it was absolutely necessary. Josie Rose, 102 Paradise, had been asked to return in two weeks on a contract she had bid at that time and that is why she is here today. Mayor said the City Manager would report on that matter. City Manager said the analysis had been done of whether to do it in-house or go out with the bid. At this point it is more advantageous to the City do to it in-house. He apologized to Mrs. Rose for putting her through a bid process. Mrs. Rose said she felt it was poor business that this was published in the paper for several weeks and then to extend the present contract for a month. If you were so organized wherein you could keep this job in-house, why aren' t you prepared to do the job. I was discriminated on. She mentioned several incidents dealing with the City beginning in 1981. She said she had the concession contract with the City until someone decided they wanted the Lions Club to have it. One of the Councilors put in a complaint regarding the bad conditions the concession stand was in. I have been discriminated and have not been treated fair. I have had three attorneys tell me they will accept my case. I have not been treated fair and am unable to get a job in Wichita Falls that I applied for and am qualified for. Mayor stated that based on the information Mrs. Rose has presented, it would be inappropriate to respond to any of that today. He thanked her for being here. Kevin Green, 107 Fillmore, representing Lucy Park Area Neighborhood Watch Association, complained about a vacant home which had been moved to 316 Fillmore about a year ago and nothing much had been done on it. He requested that at least it be cleaned up to make a better appearance in the neighborhood. Mayor directed City Manager to have this looked into. Scott Askins, 4819 Alamo, representing Eagle Mart and several other convenience stores, stated that they are not aligned with either side on the smoking issue. They feel like they are in the middle of this battle. One issue which their industry is concerned with and doesn' t understand why it is contained in the ordinance is Sec. 18-103. This section 838 Item 12b, cont'd. prohibits retail establishments from placing tobacco products in self serving areas. This section of the Ordinance would further damage our ability to sell this product. We are asking you to look at our right to sell a product. We ask that the Council review the amendments presented by the Restaurant Association and consider it. Councilor Daniel said that he and Councilor Martin had discussed that and it would be one of the items to be discussed in amending the Ordinance as it now sits. Mayor said that the Council would take that into consideration. Larry Sanner, 5007 Lake Shore, lives on Lake Wichita. He said that there is no way to access Lake Wichita for boating ramp capability. The only boat ramps are private ones. He suggested that a boat ramp be built at Jaycee Park and that it be done before the level is at 976 and before the summer. He also stated that they need to consider emergency situations. City Manager informed that this had been covered by the Lake Study Committee and the feeling has been not to do anything until the whole Jaycee Park issue could be looked at. Mayor directed the City Manager and Engineering Department to look into this and see if there is anything which can be done ahead of time, which they feel would be safe to accomplish. Gene Newton, 3603 Glenwood, Chair for Commission on Human Needs, mentioned the Folk Life Festival which will be held May 20 and informed on the purpose and results of their festival last year. He informed that they were in need of some funding and requested $7500, and suggested hotel/motel tax funds. Councilor Hawkins directed Mr. Dockery to provide Council with information on what was available and the possibilities. He asked that this be put on the next Council meeting as an agenda item. Larry Thompkins, 925 Lamar, reiterated a statement which was in the newspaper about City employees being rude. He said that he generally agreed with that, but a subset of that rude staff are very rude and a smaller subset of that are thugs. Mayor asked if he was saying that some of the City Staff are thugs. Mr. Thompkins answered that he specifically meant a small number in the Police Department. He informed of the numerous times he had been arrested and given citations for sundry charges and reasons. He said that no one on the Council had called him to inquire about his arrest on fraudulent charges. He stated that City Staff are rude and that seems thugy. Ken Phillis, 2605 N. Leighton, reiterated what he had written in a letter to the Council. He said that the Smoking Ordinance is an issue about health and a privilege, not a right. No one is trying to take away the smokers right to smoke, they have that right, but when their smoking makes someone smoke who does not want to then you are stepping on someone else' s rights. There is a delicate balance there. There are a lot of laws, regulations and ordinances. For instance, if I buy a beer and put it in my vehicle which I paid for, I can' t consume that beer in my vehicle and I can' t drive that vehicle at any speed I want or park it where I want. I don' t know of any Constitutional wording that says a person can go smoke whenever and wherever they want. If there is some wording in there that says you have the right to do that then you can utilize and waffle that wording around. Then you can go argue about all these other things such as being able to dump your used oil whenever and wherever you want, because it is my constitutional right. A letter in the newspaper stated that smokers generally try to adhere to social restrictions. Baloney, if they cared that much they would not be fighting so hard to smoke in restaurants. The non-smokers have been the silent majority. 72% of the population are non-smokers and many are children. 839 Item 12b, cont'd. We have no choice in smoking if a smoker lights up next to us or in the back of a room. Studies have shown that there has not been an economic impact in cities adopting a no smoking ordinance. I would like to see this go to a vote. As you vote on this issue keep in mind that these things are established for the overall health and welfare of the public. Item 12c Councilor Loughry asked that the City Clerk look into the possibility of using Lamar School as a polling place. Councilor Martin received complaints on the lack of enforcing the Ordinance on parking on the grass, and he asked Staff to look into this. Councilor Hawkins asked Councilor Martin to have persons complaining about this ordinance to contact him since it is being enforced on the north side of the City. He will personally contact Mr. King. Councilor Daniel said that we have heard from two extremes on one issue. This Council operates under a handicap, in that unlike some of the groups we have heard from today, we are not omniscient but to some extent we are omnipotent in that we have a lot of power. It puts the Council in a difficult position because we do have the power to do a lot to things. We must decide what is desirable and what is actually right. He gave examples of the many differences which exist, such as the difference between what any governing entity can do and what is public desire, rights and privileges, public institutions and private businesses, etc. There is a difference between government and control, and it is when the City Council or any other entity crosses or begins to cross that line that we move from true government to tyranny. I know that is a strong word. We have a situation here where a goal is laudable and I think a goal of having a smoke free society is laudable and desirable, personally it is for me. From a business standpoint it is desirable, but does this Council have the right to decide what a private business does when individuals enter a business such as a restaurant. People enter restaurants by choice. I caution that the goal is laudable, but the method is wrong. We put the burden on private businesses to enforce something society desires, and that is a mistake. We need to re-address the issue and re-think what government can do legally and what it should do. Councilor Thompson made an observation and stated that this had been an emotional day in that we have had citizens who have come from different sides on an issue which should not germinate as much excitement as it has. I agree with Councilor Daniel that this non-smoking issue is a laudable goal and we should strive for it. I also agree that we should think on things that are laudable and good. We would not want to retreat from that goal. Today we have heard terms that to me have a bad connotation, such as tyranny, zealots, do-gooders, etc. I don't think that those terms add anything that is good to our City. I think if anything we would want to use terms to uplift people to cause people to work together. After all, whether this passes or not, we all still have to live in the same City and eat at the same restaurants and still be the same neighbors. Wichita Falls is going to go on whether this ordinance passes or fails. I hope that our people can work together and come to a compromise. Mayor Lam welcomed Elizabeth Charlsie Lam into the world. She is the Mayor' s first grandchild. 840 Item 12d City Manager passed out a memo from Mr. Clark regarding figures on the Travis Street drainage project and informed we were ready to begin. He asked if Council had any concerns or questions to contact him. City Manager passed out a memo from Mr. Bonnett regarding landfill liners. City Manager informed Council of a short term agreement with Lone Star Gas to accommodate their vehicles at the City Service Center. If Council has questions or concerns contact the City Manager. City Manager informed that there would be a Lake Study Committee meeting this week to discuss re-leasing of lots at Lake Kickapoo and other matters. Staff will report to Council on results of meeting. City Attorney informed Council that unless they were - opposed, he was going to contact Senator Haywood and Representative Hirschi to voice opposition to pending H.B. 176, which would allow Public Utilities to pass on estimated income taxes to the rate payer rather than the actual tax in a rate case as law currently allows. Item 12e No executive session was held on appointments. Item 12f No appointments made to the Wichita Falls Park Board. Item 12g Moved by Councilor Thompson to appoint to the Clean Community Commission Francess Haughney with term to expire December 31, 1996 and Sunny Davidson with term to expire December 31, 1995. Motion seconded by Councilor Hawkins and carried by the following vote. Ayes: Mayor Lam, Councilors Mallonee, Loughry, Thompson, Daniel, Martin, and Hawkins Nays: None Item 12h Moved by Councilor Thompson to appoint to the Wichita Falls Housing Authority John Buchan with term to expire July 1, 1996 . Motion seconded by Councilor Hawkins and carried by the following vote. Ayes: Mayor Lam, Councilors Mallonee, Loughry, Thompson Daniel, Martin, and Hawkins Nays: None Item 12i Moved by Councilor Thompson to appoint to the Plumbing and Mechanical Board of Adjustment and Appeal David Dorough with term to expire December 31, 1996. This appointment was made in accordance with City Ordinance No. 15-89. 841 Item 12i, cont'd. Motion seconded by Councilor Hawkins and carried by the following vote. Ayes: Mayor Lam, Councilors Mallonee, Loughry, Thompson, Daniel, Martin, and Hawkins Nays: None The City Council adjourned at"12: 35 p.m. PASSED AND APPROVED this c2:L day of 1995. 4f4ichael Lam, Mayor ATTEST: LydiA Torres CityAJClerk