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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed July 12, 2016 Written Comments - Consent Calendar July 12, 2016, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosherOvahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 7. Minutes for the June 28, 2076 Study Session and Regular Meeting The page numbers below refer to Volume 63 of the draft minutes. The passages in italics are from the draft with suggested changes shown in gtdkeout underline format. Page 441: Item SS2: "Mayor Dixon recognized the following ,bystanders and Fire Department personnel for the rescue of Nixon Minor at Marriott Villas on February 15, 2016, and presented Newport Beach Fire Department Heroic Act Awards to Lorna Campbell, Ralph Davis, Gampbell Davis, Fire Captain Roman Taijeron, Fire Engineer Brian Frasz, Paramedic Kevin Gonzalez, Paramedic Joe Laser, and Paramedic Ryan O'Leary. and Fire Chief Poster remarked on the inti"dent. Nixon Minor was presented with child -sized firefighter gear." [note: the name "Campbell Davis" appears to be an artifact from a stenographer's note. I do not believe such a person was mentioned, and, to the best of my knowledge, Chief Poster did not participate in the rescue, and hence did not receive a Heroic Act Award.] Page 41: Item SSS, paragraph 3: "Kent MoNaughtin McNaughton, 20th Street Beach and Bike, discussed the number of bicycle recitals on the Peninsula." [spelling per business license] Page 43: Item X, paragraph 2: "He stated he was hosting a community forum on July 8, 2016, at the Newport Coast Community Center at 5:30 p.m." [the minutes are correct, however the Clerk's list of Council candidate forums indicates the correct date is July 28] Page 43: Item XI, paragraph 1: "He suggested complete transparency on fee waivers." Page 52: Item 521, paragraph 2: "Allyson Gipson, Harris & Associates, presented a PowerPoint presentation recapping the Civic Center Project close-out audit, ..." Page 53: paragraph 2, line 7: "reviewing C.W. Drivers Driver's accounts payable records." Page 53: paragraph 2, line 2 from end: "the original mquest requests for proposals were not provided,... Note: I submitted written comments highly critical of the quality of the minutes (for June 14th) submitted at the Council's last meeting. I would like to publicly express my appreciation that the current minutes are much better and more readable. Although not perfect (for example, I remember some discussion of Item XVI I — the motion for reconsideration — that didn't make it into the draft), they at least give a reasonable impression of what was said and what happened th on June 28 July 12, 2016, Council Consent Calendar Comments - Jim Mosher Page 2 of 6 Item 3. Introduction of Ordinance No. 2016-70 Amending Chapter 5.20 of the NEMC Entitled Pawnbrokers, Secondhand Dealers and Junk Dealers As indicated in the staff report, Attachment B ("Redline of Ordinance") is intended to show "the proposed changes to the ordinance." However, it is not at all evident what the highlighted changes are relative to. For example, the definition of "pawnbroker" (Section 5.20.010) is completely different from the present code, but this is not indicated as a change. Similarly, some passages in the "Whereas" clauses of the ordinance are highlighted as changes, even though none of the Whereas clauses are part of the existing code. My guess is the redline is showing changes relative to an earlier draft. It would be much more helpful to highlight the changes proposed relative to the existing NBMC Chapter 5.20. More generally, if the City wishes to introduce and adopt ordinances without comment on the Consent Calendar, I would suggest it appoint a citizens committee to at least vet the proposed legislation to see if it is understandable and accomplishes what City staff thinks it does. That said, regarding Attachment A ("Ordinance No. 2016-10") 1 would offer: Page 1, Whereas #1, line 3: "...to curtail the dissemination of stolen propertyand to fasfli# facilitate the recovery of stolen property ... and to aid the State Board of Equalization to detect possible sales tax evasion." [suggested changes per state code purportedly being quoted] Section 5.20.010 (Pawnbroker defined). The new definition appears to be more restricted than the existing one. Section 5.20.020 (Pawnshop Defined): "The term "pawnshop" means any room, store, orplace in which the business or activity described in Section 5.20.090 is engaged in, carried on, or conducted.,' Section 5.20.050.6.4: seems poorly written. The requirement to self-report suspected violations of municipal codes that did not lead to a conviction seems contrary both to the American presumption of innocence, and to the specific requirements of the remainder of the ordinance, in which the only grounds for refusing to issue the permit appears to be conviction of a crime involving stolen property. If the latter is indeed the only thing enforced, shouldn't the requirement be to report convictions of that sort? And why is the statement confined to violations of municipal codes? Wouldn't a state, county or federal record involving stolen property be just as important? Section 5.20.050. B.4 (next to last line): and no person shall #aN fail refuse or neglect to do so." Section 5.20.050.17.1: This refers to items that are apparently expected to be designated in the permit, but nothing I can find in the proposed ordinance otherwise July 12, 2016, Council Consent Calendar Comments - Jim Mosher Page 3 of 6 explains what the permit will contain. Is a section describing the required contents of the permit missing? Section 5.20.050.G (Appeal or Call for Review): The term "Call for Review" is used repeatedly is this subsection, but without explanation of who could initiate it or how. The term should either be deleted throughout, or alternatively, the person or persons who make such a call need to be specified. Section 5.20.070.A: This subsection contains what seems to be a rather arbitrary selection of state code sections related to the "form and contents" of the required reports. Is this meant to imply that other sections can be ignored or don't apply in Newport Beach? Section 5.20.070.13: Which appears to say the records received and stored by the City can be inspected only by the Police and with a court order seems in conflict with Section 5.20.080 which appears to indicate the copies kept by the dealer can be inspected by any police officer at any time during business hours. Is a court order required for the latter? Section 5.20.080: The intent of the opening phrase is unclear. Should it be "Unless federal or state law reqv4ees allows a shorter time period, ..."? Surely, state or federal law does not require records to be discarded in less than the City's three years? Section 5.20.120 (Hours of Operation): This appears to say the allowable hours of operation are: M -F: 7 a.m. to 7 p.m.; Sa 7 a.m. to midnight; Su: closed. Is being open til midnight on Saturdays really what is intended? And what are the intended allowable hours on holidays? Section 5.20.130, lune 6. `"..., mark or other means of identification commonly recognized in the trade, ..." [?] Item 4. Introduction of an Ordinance to Amend the Stakeholder Business Structure and Annual Assessments Levied for the Newport Beach Restaurant Association Business Improvement District I appreciate the NBRA's effort to recalibrate its assessment structure. That said, I always find the term "stakeholders" problematic when dealing with governmental entities, since we all have a stake in their activities. To me, the proper term for those on whom the City allows the BID to levy an assessment would be the "assessees." There doesn't really seem to be any good synonym for it. In other kinds of special districts, the people who are required to pay in are commonly referred to as "ratepayers," but that seems less apt here where the service being received is less clear. July 12, 2016, Council Consent Calendar Comments - Jim Mosher Page 4 of 6 Regarding proposed Ordinance No. 2016-11: In the opening "Whereas," the name of the BID established in 1995 by Ordinance No. 95-55 is "the Newport Beach Restaurant Improvement District." The words "Association" and "Business" do not appear in it (the "Newport Beach Restaurant Association" appears to have been a private non-profit, funded by private contributions, that preceded the Council -created BID and its Board). 2. In the next to last "Whereas" on the opening page, calling the present meeting one "where the City Council solicited testimony from the public and members of the LABRA BID" seems a bit disingenuous since the item is hidden in the Consent Calendar, and does not seem to have been separately noticed. 3. Since the present ordinance is presented as amending but not replacing Ordinance No. 2009-26, it would have been helpful to include a copy of that ordinance. 4. Section 1 proposes to replace Section 1 of Ordinance 2009-26. The intent of the change is not obvious. a. Although it also includes a list of typical businesses, I believe City staff interprets the old Section 1 as including in the assessment all food serving businesses in the City, with the exception of two enumerated exemptions: "certified Farmer's Markets and bars with only a Part 48 ABC license from the State." b. Is the intent of the new Section 1 to still include all food serving businesses, or only those similar to the examples provided? c. In the new Section 1, are "certified Farmer's Markets and bars with only a Part 48 ABC license from the State" now in or out? d. Are "mini -marts, gas stations with take -out food service, and bars serving food," formerly, but no longer, listed, now in or out? Page 3 of the staff report says "the Board felt it was necessary to eliminate gas stations that sell food and mini marts from the NBRA BID," but where the line is drawn between markets that are in and markets that are out is unclear from the ordinance. And both the staff report and the ordinance appear silent on such things as "bars serving food." e. I also understand there is uncertainty about the status of food serving ventures within larger entities, such as "private" clubs„ which is again not addressed anywhere I can find. f. If it is intended that there be food serving businesses that are exempt from the BID assessment, shouldn't the ordinance be more explicit in defining what those exceptions are? 5. Section 2 proposes to replace Section 2 of Ordinance 2009-26. The practical application of the proposed fee structure is far from obvious. a. Where does a fast food restaurant, such as McDonald's, fall in this structure? They are neither a "full service restaurant" nor a "fast casual restaurant" (which July 12, 2016, Council Consent Calendar Comments - Jim Mosher Page 5 of 6 seems by definition to serve better food than a "fast food restaurant"). Does this mean they are exempt from the BID assessment? b. Are other food services that don't fit squarely in one of the categories A -G exempt? c. Why are categories E and F listed separately? How do they differ from the "specialty shop" of category D? 6. Section 3 proposes to replace Section 3 of Ordinance 2009-26. Again, the intent of the change is not entirely obvious. a. It refers to "increased" assessments, but according to the staff report, in some cases assessments will be lowered. b. I thought the Council had recently approved the levy for the current fiscal year. Are the assessees going to be re -billed for a new amount pro -rated in some way for the part of the fiscal year after September 9, 2016? c. Is changing the previously announced levy allowable under the Streets and Highways Code? 7. By contrast, the new ordinance does not propose to alter Section 4 of Ordinance 2009- 26, which sets the penalties for non-payment of the assessment. Yet Item 11 on the present City Council agenda deals with forgiveness of the current penalties, indicating the current penalty structure has had practical problems. And I thought the NBRA BID Board had recently approved "aligning the assessment, penalty fee structure with the City's Municipal Code Section 5.04.260" (Item 5 on May 4, 2016, agenda). Has Section 4 been separately amended? If so, how are the public and the NBRA assessees expected to keep track of what is current and what is not? Item 5. Corona del Mar Entry Improvements - Notice of Completion of Contract No. 6362 (15L 12) It is good to see this project successfully completed. It is disappointing that more dollars were spent than had been planned or budgeted. It is even more disappointing to see a substantial portion of the taxpayer -funded sidewalk widening being immediately and permanently taken over by private restaurants who the Council recently Item 19 on June 14, 2016) allowed to install iron barriers making those new public areas accessible only to their customers. Giving up parking spaces to obtain a sidewalk no wider than what was there before does not seem like much of a deal for the public. July 12, 2016, Council Consent Calendar Comments - Jim Mosher Page 6 of 6 Item 6. Acceptance of Funds from the California Department of Alcoholic Beverage Control The staff report does not explain why the vast majority of the grant is proposed to be expensed on "Overtime." One would normally think that overtime provides the least service per dollar spent. Item 7. Approval of the Orange County Transit Authority Senior Mobility Program Amendment to the Cooperative Agreement, Acceptance of Funds and Budget Amendment No. 17BA-003 for the OASIS Transportation Program From page 7-4 of the agenda packet (page 2 of Amendment 1), it appears the current Agreement may have expired on June 30, 2016. Has that caused any interruption to the service, or caused the City to incur non -qualifying expenses?