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HomeMy WebLinkAboutVirtual City Council Agenda Packet 08-10-20AGENDA CITY COUNCIL MEETING CITY OF WHEAT RIDGE, COLORADO August 10, 2020 7:00 p.m. This meeting will be conducted as a VIRTUAL MEETING. No members of the Council or City staff will be physically present at the Municipal building for this meeting. The public may participate in these ways: 1. Provide comment in advance at www.wheatridgespeaks.org (comment by noon on August 10, 2020 ) 2. Virtually attend and participate in the meeting through a device or phone: • Click here to join and provide public comment • Or call +1-669-900-6833 with Access Code: 974 7168 7716 3. View the meeting live or later at www.wheatridgespeaks.org, Channel 8, or YouTube Live at https://www.ci.wheatridge.co.us/view 4. Individuals who, due to technology limitations, are unable to participate in the meeting virtually (via the Zoom platform) or by calling in on the telephone may contact Danitza Sosa, Assistant to the Mayor and City Council, at 303-235-2977 by noon on the day of the meeting. Arrangements will be made for those individuals to access City Hall during the meeting to view the meeting and provide public comment if desired. These comments will be heard and seen in real time by members of Council and City staff. Individuals accessing City Hall must practice social distancing, wear a mask or other facial covering and be free of COVID-19 symptoms. Individuals with disabilities are encouraged to participate in all public meetings sponsored by the City of Wheat Ridge. Contact the Public Information Officer at 303-235-2877 or wrpio@ci.wheatridge.co.us with as much notice as possible if you are interested in participating in a meeting and need inclusion assistance. CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL OF MEMBERS PROCLAMATIONS AND CEREMONIES APPROVAL OF MINUTES Study Session Notes of July 20, 2020 APPROVAL OF AGENDA CITY COUNCIL AGENDA: August 10, 2020 Page -2- CITIZENS’ RIGHT TO SPEAK a. Citizens may speak on any matter not on the Agenda for a maximum of 3 minutes under Citizens Right to Speak. Please speak up to be heard when directed by the Mayor. b. Citizens who wish to speak on a Public Hearing item or Decision, Resolution or Motion may speak when directed by the Mayor at the conclusion of the staff report for that specific agenda item. c. Citizens may comment on any agenda item in writing by noon on the day of the meeting at www.WheatRidgeSpeaks.org. Comments made on Wheat Ridge Speaks are considered part of the public record. CONSENT AGENDA PUBLIC HEARINGS AND ORDINANCES ON SECOND READING 1. Resolution No. 41-2020, a resolution approving an Enhanced Sales Tax Incentive Program Agreement with Applejack Wine and Spirits, LLC in an amount not to exceed $990,146 or for ten years, whichever shall occur first 2. Council Bill No. 16-2020, an ordinance approving the disposition of excess real property held by the City adjacent to Ridge Road between Taft and Tabor Streets 3. Council Bill No. 15-2020, an ordinance, Repealing Chapter 16, Article X "Massage Parlors" and Reenacting Regulation of Massage Businesses by Amending Chapter 11, "Licenses, Permits and Miscellaneous Business Regulations", by the Addition of a New Article X, Entitled "Massage Businesses" and Making Conforming Amendments to Chapter 2, Article V "Administrative Enforcement" and Chapter 26 "Zoning and Development ORDINANCES ON FIRST READING 4. Council Bill No. 17-2020, an ordinance Amending Section 16-103 of the Wheat Ridge code of laws, concerning regulation of noise DECISIONS, RESOLUTIONS AND MOTIONS 5. Motion to approve appointments to City Council District IV vacancies on the Cultural Commission CITY MANAGER’S MATTERS CITY ATTORNEY’S MATTERS ELECTED OFFICIALS’ MATTERS ADJOURNMENT 1 STUDY SESSION NOTES CITY OF WHEAT RIDGE, COLORADO City Council Chambers 7500 W. 29th Avenue July 20, 2020 Mayor Bud Starker called the Study Session to order at 6:30 p.m. This meeting was conducted as a VIRTUAL MEETING. No members of the Council or City staff were physically present at the Municipal building for this meeting; the public did not attend in person. Mayor Starker welcomed the Council, other elected officials, staff and interested citizens. The Mayor also explained the virtual meeting format, how citizens will have the opportunity to be heard, and the procedures and policies to be followed. Council members present: Amanda Weaver, Judy Hutchinson, Zach Urban, Janeece Hoppe, Rachel Hultin, Korey Stites, Valerie Nosler Beck, and Leah Dozeman. Also present: City Clerk, Steve Kirkpatrick; City Attorney Jerry Dahl; City Clerk, Steve Kirkpatrick; City Manager Patrick Goff; Community Development Director, Ken Johnstone; Economic Development Director, Steve Art, Police Chief Christopher Murtha, Police Division Chief Jim Lorentz, guests and interested citizens. Citizen Comment on Agenda Items Nikki Reising, 505 W. 73rd. Ave., Westminster. She works as an advocate for those experiencing homelessness. She spoke at length about the homeless navigator recently hired by the City, Golden and Edgewater. She addressed the skill sets homelessness workers require. She spoke at length about the needs of the homeless and the services they need, emphasizing a need for coordinated and responsive services from not only municipalities but also healthcare, mental healthcare, social services and other providers among the non-profit and faith communities. Kayla Garcia, Director of Community Affairs, Rocky Mountain Bottle Co., spoke for her company along with several other RMBC managers. She described the RMBC business model, its recent efforts to conserve the environment and natural resources. Our goal tonight is to listen to our neighbors and Councilmembers and understand their concerns. She invited residents to connect with RMBC one on one. RhueAnn Squillace, 5311 Nelson St. Bought her home 16 years ago, and knew the RMBC plant was there. In the winter of 2018 the noise level increased dramatically when new industrial equipment was installed. Now the nose level has diminished our quality of life and the value of our property. We want to understand why the noise level increased so dramatically and what might be done about it. 2 Dale Squillace, 5311 Nelson St. The RMBC plant operates 24x7 and the noise level is so high you cannot conduct a conversation outdoors. When the wind blows from the south the noise is so loud we cannot open our windows at night to sleep. It never stops, not even on Christmas morning. We are a good 150 yards from the plant. We have measured the decibel level on our front porch at loud as 89 dB. We would really appreciate not having to hear that constant hum. Moe Keller, 4325 Iris St. My husband Steve and I have lived here for 42 years. We know that the quiet, rural atmosphere we enjoyed all those years ago. But the noise from the bottling plant is just not acceptable. We hope for an ordinance that there should not be a dB level higher than a certain level to stop the loud music we hear until midnight and beyond on Saturdays. She recommended that the City look into nearby municipal ordinances. Susan Schnexander 3317 Nelson St. The past couple of years when we try to sit outdoors and enjoy the evening the music from a nearby bar and club is so loud that we cannot have a conversation. We want you to put a dB meter somewhere nearby and record the noise levels for a week to provide some data on which to evaluate the noise levels. Councilmember Dozeman spoke from a driveway in her district along with several other citizens who support the foregoing speakers. Councilmember Nosler Beck read into the record a letter she received today from a City resident, which is incorporated in these notes as an appendix. The letter came from Lance and Kathy Carpenter, a couple who live on Nelson St, near the RMBC, to complain the excessive noise emitting from the plant. They also complained about the higher noise level since the plant installed new equipment two years ago. Steve Keller 4325 Iris St. called to say he and his wife, Mo, represent 5 families near Independence and 44th Ave. We think there is a loophole in the current noise ordinance, to the effect that if bands at a local club stop playing every 15 minutes they can circumvent the noise ordinance. We strongly object to this off again on again exception of this noise ordinance. We think it is a bad faith attempt to circumvent the current noise ordinance. Mayor asked if there was anyone who had not spoken regardless of their last name. No one else came forth. Note about Wheat Ridge Speaks: Citizens may visit the Wheat Ridge Speaks website and enter written comments of up to 1,000 words on any Council agenda item. The deadline for citizens to submit comments is 12:00 Noon Mountain Time on the day of a Council session so that Council members, other elected officials and City Staff have time to review the comments before the meeting on Monday evening. 3 The City Clerk’s Office transcribes those Wheat Ridge Speaks comments into these minutes, placing each comment along with the record for that agenda item, including items that include a public hearing (verbatim, if the comments do not contain lascivious language or unlawful hate speech). All citizen comments for this study session regarded Item 2 or 3 on the Agenda, and those comments appear below in the section for the respective items. 1. Applejack Liquor ESTIP agreement 2. Discussion began at 6:58 pm, approximately 28 minutes into the recording of the session The City of Wheat Ridge received a request from Jim Shpall, CEO and owner of Applejack Wine and Spirits, LLC (Applejack), to enter into the Enhanced Sales Tax Incentive Program (ESTIP) for the rebate of sales tax increment (Increment) in association with a proposed remodel and rebranding of Applejack located at 3320 Youngfield Street in Wheat Ridge. The rebate request is for 100% (3.0 cents) of the Increment generated for a period of 10-years or a total not to exceed amount of $990,146, whichever occurs first. Steve Art delivered to Council a detailed presentation about this item, its purpose and the background of the reasons for bringing it to Council. Applejacks plans a complete remodel of their location in Applewood and seeks the ESTIP to improve their store, exterior and interior. James Shpall, CEO of Applejacks introduced an audiovisual presentation about the company and its 57 year presence in Wheat Ridge. He introduced Mr. Tony Ryerson, a senior manager at the store, who gave a detailed presentation of the plans to renovate the interior and exterior of the store. Councilmembers had questions and comments. Will the new look at Applejack’s match the recently renovated properties elsewhere in the Applewood Shopping Center? Yes, it will. What is the timetable for completing the project? Difficult to say, but the bulk of the work will be in January to May, 2021. Councilmembers expressed their support for the project on both an aesthetic and a financial level. Does the remodel include bicycle parking? Not at present time, but we will surely consider it. With online sales growing at the expense of brick and mortar stores, how will this help? Most of the software and curbside pick-ups improvements address those issues. There were detailed questions about the liquor licensing and tasting sessions. 4 Will the landlord help defray any of the costs of the project? The details of that help are still under negotiation; the help with tenant improvement from the landlord is $1.25 million. How does the ESTIP program timeline align with the new lease? The lease will run 20 years longer. Is the landlord involved in the ESTIP application? No. Does the parking space count change? No. Mayor Pro-Tem Hoppe asked for a consensus to direct staff to draft an ESTIP Agreement for future consideration at the regular City Council meeting on August 10th. Consensus attained. 2. Homelessness Issues in Wheat Ridge Discussion began at 7:37 pm, approximately 1:07 hours into the recording of the session. Over the past few years, and recently exacerbated by the COVID-19 pandemic, there has been a significant increase in the number of homeless or transient people throughout Jefferson County, the Denver-Metro Area, and the state of Colorado. While homelessness has been viewed as traditionally a big city challenge, the suburbs and areas outside of the large urban centers have experienced an increase in homeless/transient issues. Mr. Goff presented the item and introduced Kelli Barker and Yvette Gallegos with Jefferson County’s Homeless Navigator Program. They spoke to Council, giving a detailed multimedia presentation about this item, the homeless navigation program in Jefferson County, its purpose and the background of the reasons for bringing it to Council. Ms. Gallegos provided a similarly informative presentation about the details of how homeless navigators serve the public, those experiencing homeliness and connecting them to the resources they need. Marianne Schilling, Assistant to the City Manager, also gave a presentation on this topic. She addressed the progress toward hiring a full time homeless navigator who will serve Wheat Ridge, Golden and Edgewater, under an agreement among the three cities. Councilmembers had questions and comments: Councilmembers thanked Ms. Gallegos and Ms. Barker for their time, presentation and hard work. How does the homeless navigator program work with our existing resources for those experiencing homelessness? The guests gave a detailed answer. 5 How do programs providing mental health services with medication fit into the navigator effort? Often people need a prolonged in-patient treatment period in order to adjust their medications, especially in the case of those with multiple mental health and physical health issues. One of the goals of the navigator program is to help those who need it to get this treatment so they are on the proper medications and dosages. Mr. Goff reminded Council that too often the police department becomes the front line intervention for homelessness. This is not a policing issue, and we firmly believe the navigator program will help the homeless and relieve the police of duties they are not well equipped to perform. What is the navigator program doing to address the chronic homelessness problem created by a shortage of housing and the high and rising cost of housing? The answer was that there are some resources available for this population, but the resources are woefully inadequate. We have the ability to provide more housing for this population, and the support for it is growing among the public and governments. Since transportation is such a significant barrier to homeless seeking and accessing services how can we address the transportation issues? The answer is very different from county to county. For example, in Denver the resources are all in one area but in Jefferson County the resources are widely dispersed. Right now, all we have is RTD passes available in too small quantities. The navigators often provide a bridge between the homeless and the various programs that could serve them. For example, navigators can meet with people on the street and help them complete an application for food stamps and then submit the application for the client. Councilmembers constantly hear from citizens about homeless people when they encounter them in public, in parks and along greenbelts. Often they call the police because they do not know who else to contact. The staff presentation continued with additional PowerPoint slides to support the verbal comments. Chief Murtha and Division Chief Lorentz provided a detailed presentation on the experience of law enforcement officers and the homeless in Wheat Ridge. They explained the legal definitions of behavior that is unlawful in terms of loitering and panhandling. They explained the limitations officers face in terms of interacting with the homeless and their rights as citizens. Having attained a consensus, Mr. Goff asked what process Council would like to follow going forward. Council had further questions and comments: Councilmembers thanked the Wheat Ridge Police Department for their hard work and mostly for their approach to the community and the homeless issue. The one complaint we hear the most is safety along the greenbelts. Please, describe what the PD Greenbelt Project is doing and what are its goals. There is budget money 6 to pay officers overtime to enforce the no-camping ordinances; however being homeless and visiting the greenbelt is not a crime. The police department leaders explained that there is relatively little crime involved in contact with those experiencing homelessness. How can we better inform business owners and residents, with printed matter, online information or signage, about what is allowed and what is not? Mr. Goff answered that we are working on that very issue and will plan to do more. Can we open the recreation centers once a week to allow the homeless to bathe? Mr. Goff said we have not considered that, but he will confer with our Parks and Rec Director about the resources and safety concerns doing that would present for city staff and the public. The following comments appeared in Wheat Ridge Speaks related to this item: My name is Nikki Reising. I am an advocate and service provider for those experiencing homelessness in Jefferson County. The Homeless Navigator positions are a much-needed regional effort in Jefferson County. The decision to create one full-time position by combining the Wheat Ridge, Edgewater and Golden roles is important to help support the regional effort. This will allow for the Navigator to provide better assistance to those experiencing homelessness in the given jurisdictions and better collaborate with the Navigators already working in these roles. Homeless outreach assistance is professional work that requires specific training and expertise. To reach permanent rather than short term results, outreach case managers must know the resources, have the training and be provided exceptional supervision. The main goal of successful homelessness outreach program is to end street homelessness. Reducing and effectively ending homelessness has been proven to lead to many community benefits, most often seen in the decreased use of emergency services. Once people are housed, their use of emergency services drastically decreases, leading to less of a strain on the health care and criminal justice systems. Health care professionals, police, attorneys, judges and whole communities can more effectively use their time and financial resources. In the midst of a global pandemic, it is ever more evident that housing is health care. As an expert in the field, it is my strong recommendation that the Navigator position be subcontracted to a local nonprofit organization in order to better provide effective training, support and resources. Nonprofits that have professionalized this much needed work rely on coordinated efforts between the private, public and nonprofit sectors. This coordinated work is made more efficient and effective through the use of the HMIS system and the CoC’s Coordinated Entry System, OneHome. Many nonprofits working with those experiencing homelessness access these systems to coordinate services between providers and access housing programs. Jefferson County currently has two organizations who are able to enter housing assessments known as VI-SPDATs into the OneHome system. Both organizations mainly require that clients come to the organizations’ buildings and do not have the capacity to meet clients where they are. We know that the most vulnerable in this population has trouble getting to resources. Having an outreach worker or team that is able to meet people outside in order to provide this assessment will lead to more people accessing housing programs, especially the most vulnerable. It’s exciting to hit the ground running with a position like this, so it can be helpful to work with community members who have tools and resources already in action. 7 Front Range Outreach (FRO) would make a great partner for this position. We could potentially provide safety and social training, coordination of services, HMIS access, etc. FRO is a non-profit organization I founded a few months ago, a 501(c)(3), incorporated in the state of Colorado, and a member of the Metro Denver CoC, with HMIS training and access. The Mission of Front Range Outreach is to support and advocate for people experiencing homelessness, working in partnership to create permanent solutions to end homelessness in Colorado. During the pandemic, FRO has been conducting various homelessness outreach services in Jefferson County. This has been an extremely difficult time; our homeless population is struggling more than they ever have. Over the past few months we have: • Provided outdoor survival supplies and necessities • Assisted clients with accessing physical and mental health care • Provided Narcan for drug overdose medical emergencies • Assisted people in accessing safety and criminal justice services • Administered VI-SPDATs and coordinated with the HMIS system • Created training modules for outreach workers/case managers FRO is prepared to expand and meet the challenge within the county to end street homelessness. As a nonprofit with expertise in homeless outreach services, Front Range Outreach is in a unique and active position to provide expert staff with years of experience, specialized trainings, established community partnerships, and successful outcomes. Thank you for your time. 07/20/2020 12:00 pm Nikki Reising 7765 Wadsworth Blvd Arvada, 80006 End of comment in Wheat Ridge Speaks for this agenda item. 3. Noise Ordinance Discussion began at 9:13 pm, approximately 2:43 hours into the recording of the session. The City occasionally receives complaints from residents concerning loud noises or sounds in the community. The City has once again received complaints emanating from a manufacturing operation located in a planned industrial district (subsequent to significant modifications to the operations to mitigate the noise) and from a restaurant/bar located in a commercial district (subsequent to new management/ownership of the establishment). The current Wheat Ridge Code of Laws concerning unreasonable noise is qualitative in nature and is limited in scope and difficult to prove in court because it does not set an objective level by which to measure noise. This issue was last addressed with City Council at the December 16, 2019 study session and consensus was reached on the following: 1. Create a hybrid approach for a noise ordinance (i.e. set decibel level limits for industrial zoned districts and use a reasonableness standard for all other zone districts) 8 2. Unreasonable noise is prohibited especially between the hours of 10 p.m. and 7 a.m. 3. Create a permit process for public events (live outside amplified music on patios, etc.) and special events (Carnation Festival, etc.) outside of the hours 10 p.m. to 7 a.m. 4. Any unreasonable noise 50' or more from noise source is prohibited 5. Provide exemptions for construction, fireworks, loading operations, homeowner activities, road improvements and fire and police Mr. Goff delivered to Council a detailed presentation based on a “red lined,” version of the draft new ordinance, which was among the documents in Council’s packet for this session, and how it would change the noise ordinance now in force. Councilmembers had questions and comments: How will who measure the dB levels and enforce the code? How can residents proceed to ameliorate the situation now or going forward? Chief Murtha and Division Chief Lorentz answered that the current process is complicated for a long list of reasons. The dB limits that the new ordinance contemplates would give the PD new leverage when an officer hears excessive noise or a citizen calls the PD for service because of noise. Chief Murtha stated that the new ordinance would be much more enforceable. Taylor Garcia from RMBC responded that the company wants to solve this problem working with the City, Council and residents. She recalled the steps the company has taken over the past 12 years to mitigate noise. The company recently invested six figures in further noise mitigation efforts. We want to be part of the conversations about this issue going forward. Let’s be careful that when we solve this problem that we do not address only one or two noise source problems but find a solution that takes into account the whole City. Council liked the approach Mr. Goff is suggesting with the redlined version of the current ordinance to reflect the proposed changes. A lot of good work has been done and perhaps a few tweaks will make it quite effective. We also need to address the current 15-minute loophole some clubs are using to evade the noise ordinance. Do the proposed dB levels take into account traffic noise? Mr. Goff stated that we will need to train officers to use dB meters to take into account localized sources of ambient noise and background sound such as traffic and aircraft. Council also wanted to make sure that the noise ordinance does not prevent development and expansion along I-70. There were specific questions about where the point of measurement of dB levels is to be taken. The current ordinance is unclear, and we need to make sure that the new ordinance is much easier to understand and enforce. 9 Mayor Pro-Tem Hoppe attained a consensus for staff to move forward, including the following: • The hybrid approach is still the most attractive option. • Address the 15 minute loophole in the current code. • We have to be very careful about how we move forward in ways that thoughtfully avoids unintended consequences. • Let’s be careful not to harm businesses at a time when they are already hurting. • We need to ensure that our residents can comfortably enjoy their homes and outdoor spaces on decks, patios etc. • We need to have a vehicle for allowing exceptions to the new noise ordinance during states of emergency and public health issues like the current pandemic. Wheat Ridge Speaks transcript: Citizens entered the following comments about this item on the Wheat Ridge Speaks website, transcribed here in their entirety. I would like to express my opinion on a potential noise ordinance. I am a long-term Wheat Ridge resident. I love the small town feel and the mixture of homes and businesses that make up our city. I realize that both home owners and business owners truly depend on the existence of the other for our city to thrive. The rights of one cannot super-cede the rights of the other. When it comes to the noise ordinance, we have got to come to a fair compromise that allows a business to cater to the desires of its patrons while protecting the sanctity of the residences surrounding the business. Music, for example, is for the people at the business. The surrounding homes should not be subjected to having to listen to it for hours on end. The sound does not need to extend beyond the boundaries of that business. I am hoping that you will consider protecting the peaceful nature of my home from the invasion of unwanted noise from neighboring businesses, not only by addressing the issues that we are facing today, but by having the foresight to set boundaries to protect residents during the growth and change that lies in our future. Thank you. 07/17/2020 11:07 pm Shelley Pierce 9745 W 43rd Ave Wheat Ridge, 80033 Dear Wheat Ridge City Council: My husband and I have lived in our home here in Wheat Ridge for 42 years. This is a lovely city and ours is a lovely neighborhood. Like many residential neighborhoods in Wheat Ridge, however, we abut a commercial street with diverse businesses. Nine years ago, a new business opened that had significant consequences for us and our neighbors. The excessive noise due to outdoor bands at T-Bird has destroyed our peace and quiet and substituted instead blaring noise for 4 -6 hours at a time. We have tried multiple approaches to restoring peace or at least mitigating the unwanted noise but to no avail. Mediation did not work due to the unwillingness of the previous owners to comply with conditions listed in the mediation agreement. Police have been very professional in their responses to our calls and have relayed to T-Bird Roadhouse our desire to lower the volume. 10 They have also noted that the current owner used the tactic of having his bands play as loud as he wants for 15 minutes, then rest for a few minutes and then start again for another 15 minutes. By the owner’s reasoning, he is in compliance with the noise ordinance and there is nothing the neighbors can do about it. While we know we have to hear the bands, we do ask that the volume be at a bearable level. Since the Wheat Ridge City Noise Ordinance does not have a decibel reading, it is difficult to get a measured standard for enforcement. We strongly urge the city council to rewrite the noise ordinance to include a 55 dB level, as the city of Arvada and unincorporated Jefferson County already do. This adds clarity and an objective, enforceable measure for which businesses can comply and police can enforce. Two weeks ago, several of us measured the dB level in front of our homes at 74-78 dB, more than any homeowner should have to bear. We also urge the council to revisit the minimum 15 minute noise wording of the ordinance, as this can and has been used to get around the intent or at least, the spirit of the law. Thank you for your consideration of your constituents. Strong and stable neighborhoods are an important asset to any city and should be valued by the City of Wheat Ridge. Moe Keller 4325 Iris St. Wheat Ridge 07/17/2020 2:56 pm Moe Keller 4325 Iris St. Wheat Ridge, 80033 Dear Wheat Ridge City Council, I much appreciate that the council will again take up the issue of revising the “unreasonable noise/-disturbing the peace” provision of the Wheat Ridge Municipal Code (Sec. 16-103). For a business or person to persistently inflict unreasonable noise on neighbors in a residential area should not be permissible under a common-sense interpretation of Article III, Chapter 16, Sec. 16-103 (a) (4) of the Municipal Code: Any noise, sound source or any person or group of persons engaged in loud and continuing activities which are audible twenty-five (25) or more feet from the noise source or at the property line of the property upon which the noise source is located or upon which such activities are taking place, continuing for a minimum of fifteen (15) minutes. However, the owner of the bar near us informed me (on June 23) and WRPD patrol officers (on July 4) that in his own opinion he can keep within the letter of the ordinance by playing loud music for no longer than 15 minutes, breaking for a period, resuming for not longer than 15 minutes, and so on. Unfortunately, the WRPD on July 4 seemed to accept the bar owner’s interpretation of the ordinance and declined to issue him a citation. The bar owner put this plan into practice after the officers left (evening of July 4). I and my neighbors strongly object to this “on-again-off-again” interpretation of the noise ordinance. It is a bad-faith attempt to evade the intent of the law, whereas the real intent of the noise ordinance is to preserve the peace. Also, it leaves us neighbors with little defense against unreasonable noise. Anyone who has lived for a long period with noise disturbance, as I and my neighbors have had to do, will know that it is not only irritating and annoying, but stressful. The amplified bands hired by the present owner can be heard in our homes (with windows closed) half a block away from the bar, and in our yards the noise distracts from conversation and interferes with the enjoyment of our property. At our neighbor’s home two lots south of the bar, the noise can be as much as 85 decibels. The situation is especially frustrating because we have unsuccessfully made good-faith efforts to resolve 11 the problem: in person with past and present owners, with Jefferson County Mediation Services, and with the WRPD. Wheat Ridge neighborhoods, and not just our own, need a noise ordinance that will be enforceable and that will be clear to everyone. I understand that there are several other noise sources currently disturbing other neighborhoods in the city. For a possible revision of the present noise ordinance, the Council might consider: 1) a 55-decibel limit at 25 feet from the property line of the property from which the noise originates; and 2) some carefully crafted language to eliminate the “on-again-off-again” loophole. Thank you for your attention and for your efforts. Steve Keller 4325 Iris St. Wheat Ridge 07/17/2020 2:45 pm Stephen M. Keller 4325 Iris St. Wheat Ridge, 80033 Date: 7/17/2020 To: Wheat Ridge City Council Re: Wheat Ridge Noise Ordinance Thank you for your renewed interest in revising the Wheat Ridge Noise Ordinance. I appreciate an opportunity to express my views on this issue. As Wheat Ridge (and the entire Metro area) gets more populous, it also gets noisier. The noise ordinance currently on the books was written to give police a lot of interpretive leeway to negotiate peaceful resolution between neighbors. That may have been all that was needed at the time it was created. But today, with more people and more noise, the ordinance is too vague & subjective to be effective. My personal experience residing in the neighborhood adjoining the Tbird Roadhouse (9701 W 44th Ave) is a case in point. Ever since it opened in 2011, the Tbird has disturbed the peace of our neighborhood with excessive noise from outdoor live amplified music. Through the years, we have tried to work with the owners, managers, police, and mediations to try to find a resolution agreeable to both parties. Each time, our neighborhood has been disappointed by broken promises, lack of mediation enforcement, and disagreements over the interpretation of the noise ordinance itself. We are left with frustration and continued excessive noise from the T-bird. Our only recourse remaining is to harass the manager to turn the amplifiers down and submit complaints to the police. The police must then try to interpret the meaning of noise "continuing for 15 minutes". The current manager argues that if the band plays for 15 minutes, breaks, then resumes play, he is in compliance. Police usually throw up their hands and suggest more mediation. I think you can see very clearly that the current Wheat Ridge Noise Ordinance is confusing and ineffective. I want to thank my neighbors, especially Moe and Steve Keller, for their knowledge, guidance, and continuing resolve. Some neighborhoods would have just given up and accepted this intrusion into their lives. Moe and Steve have brought us together and encouraged us to hold firm in this long process. Neighboring communities, such as Golden, Arvada, and Lakewood, have updated their noise ordinances to include sound measurement technology and decibel requirements for varying zoned areas and circumstances. This approach provides objective data that is enforceable. As an example, Jefferson County's Noise Abatement Policy for residential areas is as follows: 55 decibels from 7AM to 7PM 50 decibels from 7PM to 7AM the following day (Measured 25 ft. from noise source property line) 12 This example provides a reasonable day/night differential, clear requirements, and objective measurement. The ordinance is not subject to interpretation and is enforceable. Ours is not the only neighborhood facing excessive noise disturbance. I expect this to become an even bigger problem as Wheat Ridge continues to grow. In December 2019, the Wheat Ridge City Council was considering a hybrid noise ordinance that would set decibel limitations for residential, commercial, and industrial zones. Also, the phrase "continuous for more than 15 minutes" is confusing and needs definition or removal. Please review and update the Wheat Ridge Noise Ordinance. Thank you very much! 07/17/2020 1:07 pm Kathryn J. Emmack 4310 Iris Street Wheat Ridge, 80033 Dear Wheat Ridge City Council: Thank you for seeking to strengthen the city's noise ordinance. As a longtime resident of this city...it has become painfully clear that we are at a time where like the cities around us....we need to step up and make life wonderful for all in Wheat Ridge. By making changes in the old outdated ordinance we will have an environment that will help both homeowners and businesses. I was at the December study session and appreciate the careful thought put into this matter. I look forward to a clearer...stronger ordinance that will make us all better neighbors. Thank you. 07/19/2020 2:13 pm Laura Jenkins 9715 W. 43rd Ave Wheat Ridge, 80033 City Staff received the following letter from two residents about this agenda item. July 20 , 2020 Dear Wheat Ridge Mayor and City Council Members, We would like to express our concern with the noise level of the Miller/Coors plant locate at Miller St. and Ridge Rd. in Wheat Ridge. We apologize for being unable to attend the meeting today, but we are currently on vacation. We have lived next to this plant for almost sixteen years, and have not felt the need to complain about the noise level until last year when things changed for the worse. At that time the plant installed some new equipment on the Ridge Road side of their property that greatly magnified the original noise level, and it has now become unacceptable. We are unable to open our windows in the summer to enjoy the fresh air, and sitting outside to visit with our neighbors is not relaxing as we have to raise our voices to hear each other on most days. Last year, we and several of our neighbors sent letters and attended council meetings, and were subsequently told that Miller/Coors would be doing something to mitigate the excess noise. Until now, we didn’t bring it up again because we assumed it was being taken care of and we were trying to be patient. It is now the summer of 2020 and the noise level is the same if not worse than last year. We realize that some people are of the opinion that we should just deal with it because we chose to live next to the plant, but it is affecting our quality of life, and our property values, and we feel that something needs to be done. When we built our home we knew that the plant was here, and we were very aware that it put out a discernable but low humming sound almost constantly. This noise was minimal and something that we were willing to live with, so we thought nothing of making our home there. The new noise that the plant 13 now constantly emits is completely unacceptable, and we never would have purchased a home at this location had it been at this level at the time. Please help us figure out a resolution to this problem. We would be so grateful! Respectfully, Lance and Cathy Carpenter 5318 Nelson St. Wheat Ridge, CO 80002 (303)432-7572 4. Elected Officials’ Report(s) Councilmember Weaver thanked the police officers and neighbors who helped with the migration of the goat herd last Saturday. City Clerk Kirkpatrick reported that citizens have submitted paperwork to hold a referendum petition drive to reverse the zoning change Council passed on July 13, 2020 at 38th Ave and Johnson St. He reported that it is virtually certain that the referendum will require a special election, because the deadline for the November 3rd General Election is too close. An item will appear on the Council Agenda next week to re-designate the official newspaper of general circulation for notices; the Wheat Ridge Transcript has ceased publication and will not be known as the Jefferson Transcript. Councilmember Hultin thanked Kim and Tammy Gaylord at AAA Propane generously agreed to re-certify and refill propane tanks for the Boy Scouts. The Mayor thanked all of the citizens and presenters at tonight’s session. Please, mask up, practice social distancing and wash your hands! ADJOURNMENT The Study Session adjourned at 10:14 pm. APPROVED BY CITY COUNCIL ON August 10, 2020. Steve Kirkpatrick, City Clerk Janeece Hoppe, Mayor Pro Tem ITEM NO: DATE: August 10, 2020 REQUEST FOR CITY COUNCIL ACTION TITLE: RESOLUTION NO. 41-2020 – A RESOLUTION APPROVING AN ENHANCED SALES TAX INCENTIVE PROGRAM AGREEMENT WITH APPLEJACK WINE AND SPIRITS, LLC IN AN AMOUNT NOT TO EXCEED $990,146 OR FOR TEN YEARS, WHICHEVER SHALL OCCUR FIRST PUBLIC HEARING ORDINANCES FOR 1ST READING BIDS/MOTIONS ORDINANCES FOR 2ND READING RESOLUTIONS QUASI-JUDICIAL: YES NO _________________________ City Manager ISSUE: The City of Wheat Ridge received a request from Jim Shpall, CEO and part owner of Applejack Wine and Spirits, LLC (Applejack), to enter into the Enhanced Sales Tax Incentive Program (ESTIP) for the rebate of sales tax increment (Increment) in association with a proposed remodel and rebranding of Applejack located at 3320 Youngfield Street in Wheat Ridge. The rebate request is for 100% of the Increment generated from a 3.0% tax rate for a period of 10-years or a not to exceed amount of $990,146, whichever occurs first. PRIOR ACTION: At its July 20, 2020 study session, City Council provided a consensus to draft an agreement with Applejack for the ESTIP. FINANCIAL IMPACT: If the ESTIP agreement is approved, the City will continue to receive the base amount of sales tax revenue generated from Applejack which is defined as the sales tax revenue generated for the 12-month period prior to approval of the ESTIP Agreement. The City will share 100% of the Increment which is defined as all sales tax revenues above the base amount. The Increment willbe calculated on only 3.0 cents of the City’s 3.5 cent sales tax since the revenues generated from 1 Council Action Form – Applejack Wine and Spirits ESTIP August 10, 2020 Page 2 the 0.5 cent sales tax are obligated to the 2E Bond Fund. The ESTIP rebate will be capped at an amount not-to-exceed $990,146 or 10 years, whichever occurs first. Annual Applejack sales tax revenues are estimated to increase $99,001 initially after completion of the remodel and rebranding project and grow to approximately $275,000 per year over a 10-year period. BACKGROUND: Wheat Ridge Code of Laws Chapter 22-73, establishes the ESTIP as an economic development tool. The goal of ESTIP is to encourage the establishment and/or substantial expansion of retail sales tax generating businesses within the city, thereby stimulating the economy of and within the city, thereby providing employment for residents of the city and others, thereby further expanding the goods available for purchase and consumption by residents of the city, and further increasing the sales taxes collected by the city. The increased sales tax collections will enable the city to provide expanded and improved municipal services to and for the benefit of the residents of the city. This tool allows the City Council to rebate a portion of sales tax Increment generated by Applejack. Enhanced sales tax (Increment) is the amount of sales tax collected by the city over and above a base amount, which is the amount received over the previous 12-months before approval of the ESTIP Agreement. Applejack Wine and Spirits opened in the Applewood shopping center in 1961. In 1973, the store moved across the shopping center to its current location. In 1980 the store was sold to Alan Freis (father-in-law to current part owner Jim Shpall). Alan rapidly grew the store through the 80s and early 90s into the pre-eminent store in the West Denver Metro area. In 1994 Jim Shpall joined the company and has since advanced the business into one of the top stores in the nation. In 2019, Applejack was ranked a top-5 store in the nation by the leading industry publication, Beverage Dynamics. Despite Applejack’s success, the store has remained relatively similar since the 1980s with only one significant renovation occurring in 2000. Much has changed in retail over the past 20 years. Traditional brick and mortar is losing ground to e-commerce, and mom and pop stores are closing down due to the emergence of large national chains. Applejack is a rare success story due to its relentless focus on customer service, selection, and value. However, the emergence of other big box liquor retailers in the last ten years (e.g. Molly’s, Tipsy’s, Total Wine and More) has put immense pressure on Applejack to evolve. In comparison to these newer stores, Applejack looks dated, and sales growth has slowed and even contracted despite increases in the metro population. Applejack’s core customer set remains solid and loyal but is aging. The executive team at Applejack believes that it needs to increase its focus on attracting younger customers, who are often moving to the state from elsewhere and may not have grown up with the brand. Brands that resonate with the younger consumer typically have a few key components: 1) Experiential; 2) Savvy with digital; and 3) Onmi channel. Applejack has invested and plans to continue investing heavily in these three areas. Council Action Form – Applejack Wine and Spirits ESTIP August 10, 2020 Page 3 Applejack has always been experiential with its knowledgeable sales staff helping customers navigate the large selection and exploring products beyond what they would have ever found on their own. However, the dated look puts the impetus entirely on the staff rather than building or architectural features that can enhance the experience and lead to expanding current customers experiences and bringing in new customers that have never been to Applejack. Plans to make the store more experiential include a redesigned flow, new and remodeled shelving and displays, dropped and accentuated ceilings to highlight unique areas of the store, and a redesigned service center to encourage greater customer interaction with the staff. Increased signage on the building’s exterior including a raised façade should attract customers to the store from within the shopping center and those driving along I-70. Applejack does not currently have any signage saying Wine and Spirits. With the increased traffic from the redeveloped shopping center, Applejack believes it can better capitalize on these new consumers by explicitly stating the store offerings rather than simply emphasizing Applejack, which people may not know. The updated look will also signal to potential customers that Applejack is far more than a shopping center liquor store and is an experience in itself. Applejack has been constantly upgrading their digital presence over the last few years. Major upgrades include the integration of Netsuite for their Enterprise Resource Planning (ERP) software, the integrations of Avalara tax, and Getswift delivery optimization, constant website upgrades, and the scoping of a loyalty program and consumer app both of which they hope to launch in the next 12 months. Applejack believes investment in digital is paramount to bringing in the millennial customer, and the importance was further illustrated during the Covid-19 pandemic where many of their transactions shifted from in-store to curbside or delivery. Lastly, the store needs to be onmi-channel meaning consumers can shop Applejack in a variety of ways. This largely ties into Applejack’s development of digital where customers can shop in store or order online for curbside pickup or doorstep delivery. No matter the customers preferences, Applejack wants to make the shopping experience easy and convenient for everyone. The remodel has three primary areas of focus: 1) Sales floor, 2) Façade and exterior signage, and 3) Curbside/ back of house. The sales floor redesign includes a refashioning of the look and feel of the entire store environment from floor to ceiling. Improvements will range from a new floor, upgraded and state-of-art lighting systems, new ceiling and new colors on walls and shelving. Aisles will be improved to enhance the shopping experience. Displays will be more vivid. New customer service features will be added as well as new technology at the registers to enhance the customer in-store environment. Exterior building renovation occurs largely at the main entry at the northeast corner of the building and along the northside of the building that faces the entire shopping center. The upgrade will enhance the building’s cosmetics with new exterior skin and signage, and will pronounce the entry with an elevated overhanging canopy – replacing the low mansard roof Council Action Form – Applejack Wine and Spirits ESTIP August 10, 2020 Page 4 structure. The new canopy opens up the entry area to more natural light, air flow, and warmth with a new wood soffit and stimulating lighting. A new building skin comprised of metal panel wraps the existing CMU, while painted stucco provides the field material matching adjacent stucco and contextual counterparts. Storefront doors and windows will be replaced where necessary along with a few new punched windows and doors around the perimeter. Rooftop units serving the warehouse will be replaced and will be screened properly. Overall, the facelift delivers a modern aesthetic coating to Applejack’s historical roots and deepening its identity within the recently renovated Applewood Village. The back of house redesign will include better signage for curbside pickup along the southeast edge of the building, as well as better ingress and egress to bring the product to the consumers. The interior will have a revamped layout helping to maximize the efficiency of the curbside business, which has seen a dramatic increase since the Covid-19 crisis. Additionally, part of the back of house renovation will include updated offices and employee areas. In total, Applejack will invest approximately $4.1mm of the $6.5mm into the modernization project (technology, equipment and brick and mortar). Regency Centers will invest $1.35mm into the project. Over $990,000 of this investment has been determined to be eligible public improvements including general site improvements, façade upgrades, improved curbside in the post-COVID world, and environmental remediation of asbestos. Applejack has requested assistance in paying these eligible public improvements through an ESTIP Agreement in the amount of $990,146 to round out the $6.5mm capital project. RECOMMENDATIONS: Staff recommends approval of the ESTIP request for the following reasons. The project will: • Generate increased sales and use tax revenue. • Maintain and grow local permanent good paying jobs. • Create construction-related jobs and economic activity for the surrounding neighborhood. • Revitalize a core Wheat Ridge business. • Support a long-term Wheat Ridge based small business. RECOMMENDED MOTION: “I move to approve Resolution No. 41-2020, a resolution approving an Enhanced Sales Tax Incentive Program Agreement with Applejack Wine and Spirits, LLC in an amount not to exceed $990,146 or for ten years, whichever shall occur first.” Or, “I move to postpone indefinitely Resolution No. 41-2020, a resolution approving an Enhanced Sales Tax Incentive Program Agreement with Applejack Wine and Spirits, LLC in an amount not to exceed $990,146 or for ten years, whichever shall occur first for the following reason(s) _______________________.” Council Action Form – Applejack Wine and Spirits ESTIP August 10, 2020 Page 5 REPORT PREPARED/REVIEWED BY: Steve Art, Economic Development Manager Patrick Goff, City Manager ATTACHMENTS: 1. Resolution No. 41-2020 2. Exhibit 1 – Applejack Wine and Spirits ESTIP Agreement ATTACHMENT 1 CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 41 Series of 2020 TITLE: A RESOLUTION APPROVING AN ENHANCED SALES TAX INCENTIVE PROGRAM AGREEMENT WITH APPLEJACK WINE & SPIRITS, LLC IN AN AMOUNT NOT TO EXCEED $990,146 OR TEN YEARS, WHICHEVER SHALL OCCUR FIRST WHEREAS, Division 4, Section 22-73 of the Wheat Ridge Code of Laws establishes an Enhanced Sales Tax Incentive Program (ESTIP); and WHEREAS, the purpose of ESTIP is to encourage the establishment and/or substantial expansion of retail sales tax generating businesses within the city; and WHEREAS, approval of this resolution will stimulate the economy of and within the city, thereby providing employment for residents of the city and others; and WHEREAS, the proposed improvements to Applejack will allow further expansion of the goods available for purchase and consumption by residents of the city; and WHEREAS, the completed improvements will further increase the sales taxes collected by the city, which increased sales tax collections will enable the city to provide expanded and improved municipal services to and for the benefit of the residents of the city; and WHEREAS, the agreement (Attachment 1) has been reviewed and approved by all parties. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO, AS FOLLOWS: AN ENHANCED SALES TAX INCENTIVE PROGRAM AGREEMENT WITH APPLEJACK WINE & SPIRITS IS HEREBY APPROVED FOR THE FOLLOWING REASONS: 1. City Council has conducted a proper public hearing, meeting all public notice requirements as required by Section 26-109 and 26-407 of the Code of Laws. 2. The requested Enhanced Sales Tax Incentive Program Agreement will stimulate jobs and growth during and after the improvements. 3. The improvements will lead to future sales and use tax revenue. 4. The improvements will lead to continuation of permanent good paying jobs. 5. The program continues the support of a Wheat Ridge based small business. DONE AND RESOLVED by the City Council this 10th day of August, 2020. ______________________ Bud Starker, Mayor ATTEST: _________________________ Steve Kirkpatrick, City Clerk AGREEMENT PURSUANT TO ENHANCED SALES TAX INCENTIVE PROGRAM This Agreement Pursuant to the Enhanced Sales Tax Incentive Program (this “Agreement”) is made and entered into as of the 10th day of August, 2020, by and between APPLEJACK WINE & SPIRITS, LLC located at 3320 Youngfield Street, Wheat Ridge, CO 80033, hereinafter referred to as the “Owner” and the CITY OF WHEAT RIDGE, COLORADO, hereinafter referred to as the “City,” collectively the “Parties,” and each individually, as a “Party.” RECITALS: Whereas, the City has adopted Chapter 22, Article 69 - 84 of the Wheat Ridge Code of Laws, entitled the Enhanced Sales Tax Incentive Program (the “ESTIP Program”), a copy of which is attached hereto as Exhibit A, to encourage, in part, the establishment of retail sales tax generating businesses within the City; and Whereas, the Owner desires to participate in the ESTIP Program and to share in the enhanced sales tax derived from the property described as a Retailer, generally located at 3320 Youngfield Street in Wheat Ridge, Colorado and more particularly described in Exhibit B, attached hereto and incorporated by this reference (the “Property”), for the installation of Public Improvements described in Exhibit C, attached hereto and incorporated by this reference (the “Public Improvements”) to the extent allowed by this Agreement and the ESTIP Program. NOW, THEREFORE, in consideration of the foregoing premises and the covenants, promises, and agreements of each of the Parties hereto, to be kept and performed by each of them, the Parties agree as follows: 1. Recitals. The Recitals set forth above are incorporated in this Agreement by reference. 2. Term. The term of this Agreement shall commence on the first day of the calendar month following the month in which the Owner receives a Certificate of Occupancy for the improvements listed on Exhibit C on the Property or December 31, 2021, whichever shall occur first (the “Commencement Date”) and shall terminate on the earlier to occur of the payment of the Maximum Amount of Enhanced Sales Taxes listed at Paragraph 4.e or ten (10) years following the Commencement Date. (the “Term”). 3. Application of City Code. This Agreement is subject to the limitations of the ESTIP Program, as found in the City of Wheat Ridge Code of Laws. In the event of conflicts between this Agreement and the ESTIP Program, the ESTIP Program shall control. ATTACHMENT 2 2 4. Qualification of Property for the ESTIP Program. The City agrees that the Property qualifies for the ESTIP Program and the Public Improvements are improvements for public and/or public related purposes that will stimulate the economy of and within the City, provide employment opportunities for residents of this City and others, expand the goods available for purchase and consumption by residents of the City, and increase sales taxes collected by the City. The City finds the business is reasonably likely to generate enhanced sales taxes of at least $2,395,175 over the full Term of this Agreement. The following provisions shall apply for each 12-month period in which the ESTIP Program is in effect for the Property: a. ONE-HUNDRED percent (100%) of the “Enhanced Sales Taxes” collected by the City and derived from the Property shall be segregated by the City to be utilized for the ESTIP Program herein established and approved (the “Allocated Revenues”). For purposes of this Agreement “Enhanced Sales Taxes” shall have the meaning set forth in the ESTIP Program at Section 22-75 of the Wheat Ridge Code of Laws. b. The amount of Enhanced Sales Taxes shall be calculated as follows: • Gross sales on the property during the previous 12-month period of the date of the Agreement (June 2019 to May 2020) is agreed to be $42,417,000. • Gross sales is then multiplied by the sales tax rate of 3%, producing a figure which the Parties agree is a Base Amount of $1,272,510. • This Base Amount of sales taxes shall be used in calculating Enhanced Sales Taxes, and is the amount against which sales tax collections following the issuance of the Certificate of Occupancy shall be compared. • For each 12-month period following the issuance of the Certificate of Occupancy, the excess of collections above the Base Amount shall be the Enhanced Sales Taxes for that 12-month period. c. The Owner shall share in the Enhanced Sales Taxes derived from the Property and the business located thereon as provided herein. d. Enhanced Sales Taxes from the Property shall be shared and the Allocated Revenues shall be disbursed to the Owner on an annual basis with sales taxes collected on and after the Commencement Date. The maximum term of this Agreement shall be for ten (10) years, commencing on the Commencement Date. e. The maximum amount of Enhanced Sales Tax shall not at any time exceed $990,146. 3 f. This Agreement is a personal agreement between the City and the Owner and does not run with the Owner’s property interest in the land. The obligations, benefits and/or the provisions of this Agreement may not be assigned in whole or in part without the express authorization of the City Council, acting in its sole and exclusive discretion and no third party shall be entitled to rely upon or enforce any provisions hereon. Notwithstanding the foregoing, Owner may assign its interests in this Agreement to an affiliate or to a successor by consolidation. For the purposes of this Paragraph, an affiliate means an entity which controls, is controlled by, or is under common control with the Owner. This Agreement shall never constitute a debt or obligation of the City within any constitutional or statutory provision. g. Any Enhanced Sales Taxes subject to this Agreement shall be escrowed in the event there is a legal challenge to the ESTIP Program or to the approval of this Agreement. h. At the end of the Term of this Agreement as provided for herein, any monies segregated by the City which have not been expended as hereunder provided may be transferred to another account of the City or used in a manner determined by the City in its sole discretion, excluding any amounts escrowed under Paragraph 4.g above. i. From the Enhanced Sales Tax proceeds segregated by the City, the City shall pay to the Owner the actual cost incurred by the Owner for the construction and installation of the Public Improvements beginning at the time that all of the Public Improvements are substantially completed, but not to exceed the Maximum Amount defined in Paragraph 4.e above and set forth in Exhibit C. j. In order to obtain reimbursement for such actual costs, the Owner shall submit invoices to the City after the Effective Date of this Agreement, the payment of which shall be subject to the City’s approval for compliance of the expenditures with this Agreement and the ESTIP Program and the availability of Allocated Revenues. Each invoice presented to the City by the Owner shall be accompanied by an affidavit or other supporting documentation from the general contractor stating: i. that said improvements have been substantially completed pursuant to plans and specifications approved by the City through the issuance of permits and site plan approvals by the City in the ordinary course; and ii. that the Owner has paid the full amount specified on the invoice. 4 k. The Owner shall be deemed the “owner or proprietor” of the Property for the purposes of this Agreement and the ESTIP Program, whether or not the Owner owns all or any portion of the Property at any relevant time, since the Owner is coordinating the installation of the Public Improvements. 5. City’s Budget Process. Each year, the City Manager shall include in a budget presented to the City Council pursuant to Chapter X, Sec. 10.2 of the Wheat Ridge Home Rule City Charter, the appropriation of the Allocated Revenues for payment to the Owner as provided in this Agreement. Nothing in this Agreement shall be construed as obligating the City Council to appropriate the Allocated Revenues in any fiscal year. 6. No Debt or Pecuniary Liability. Notwithstanding anything in the Agreement to the contrary, the Agreement is specifically subject to annual appropriation of sufficient funds to pay the Allocated Revenue as provided in the ESTIP Program. No multiple year fiscal obligation is created hereby. The decision of the City Council not to appropriate funds in any given year shall not affect, impair or invalidate any of the remaining provisions of this Agreement. None of the obligations of the City hereunder shall be payable from any source other than Enhanced Sales Taxes. 7. Subordination. Notwithstanding anything in this Agreement to the contrary, the Owner shall have no right, claim, lien, or priority, in or to the City’s sales tax revenue that would be superior to or on parity with the rights, claims, or liens of the holders of any sales tax revenue that would be bonds, notes, certificates, or debentures payable from or secured by any sales taxes, outstanding as of the Effective Date of this Agreement. All rights of the Owner are, and at all time shall be, subordinate and inferior to the rights, claims and liens of the holders of any and all such sales tax revenue bonds, notes, certificates, or debentures, issued by the City and payable from or secured by any sales taxes. 8. No Covenant to Construct or to Open. The intent of this Agreement is to provide for Owner’s participation in the ESTIP Program, in the event that Owner constructs the Public Improvements. Notwithstanding any provision in this Agreement to the contrary, Owner shall have no obligation under this Agreement to construct the Public Improvements, and in that event, the City shall have no obligation to share any of the Enhanced Sales Taxes with Owner. 9. Remedies. The Owner waives any constitutional claims against the City arising out of a breach of this Agreement. The Owner’s remedies against the City under this Agreement are limited to breach of contract claims. In no event shall the Owner be entitled to a claim, nor shall the City be liable for, any special, exemplary, punitive or consequential damages of any kind, including economic damages or lost profits. 5 10. Severability. It is understood and agreed by the Parties that if any part, term or provision of this Agreement is held by the courts to be illegal or in conflict with any law of the State of Colorado, the validity of the remaining portions or provisions shall not be affected, the rights and obligations of the Parties shall be construed and enforced as if the Agreement did not contain the particular part, term or provision held to be invalid, and the Parties shall cooperate to cure any legal defects in the Agreement or the ESTIP. Should the allocation of the Enhanced Sales Tax, or the payment of the Allocated Revenues be judicially adjudged illegal, invalid or unenforceable under the present or future laws effective during the Term of this Agreement by a court of competent jurisdiction in a final, non-appealable judgment, the Parties shall utilize their best, good faith efforts to restructure this Agreement or enter into a new agreement consistent with the purposes of this Agreement. Should the Parties be unsuccessful in their efforts, the Agreement shall terminate without penalty or recourse to the City. 11. Governing Law. The laws of the State of Colorado shall govern the validity, performance and enforcement of this Agreement. Should either Party institute legal suit or action for enforcement of any obligation contained herein, it is agreed that venue of such suit or action shall be proper and exclusive in the district court for Jefferson County, Colorado. 12. Notices. All notices required or permitted under this Agreement shall be in writing and shall be hand delivered or sent by certified mail, return receipt requested, postage prepaid, to be addressed to the Parties set forth below. All notices so given shall be considered effective upon the earlier of the actual receipt or seventy-two (72) hours after deposit in the United States Mail with the proper address. Either Party by notice so given may change the address to which future notices shall be sent: Notice to the City: City Manager City of Wheat Ridge 7500 W. 29th Avenue Wheat Ridge, CO 80033 Copy to: City Attorney City of Wheat Ridge 7500 W. 29th Avenue Wheat Ridge, CO 80033 Notice to the Owner: President/CEO Applejack Wine & Spirits 3320 Youngfield Street Wheat Ridge, CO 80033 6 13. Entire Agreement – Amendments. This Agreement embodies the whole agreement of the Parties. There are no promises, terms, conditions, or obligations other than those contained herein and this Agreement shall supersede all previous communications, representations or agreements, either verbal or written, between the Parties hereto. This Agreement may be amended only by written agreement between the Owner and the City acting pursuant to City Council authorization. 14. Effective Date. This Agreement shall be effective and binding upon the Parties upon the date first set forth above. Notwithstanding any provision of this Agreement which may be interpreted to the contrary, in the event that Owner does not acquire title to the Property and construct and make improvements to the Property on or before December 31, 2021, then upon notice by the Owner to the City, this Agreement shall terminate and both Parties shall be relieved of all liability hereunder. IN WITNESS WHEREOF, Owner and City have each caused this Agreement to be executed by the authorized Parties. OWNER James Shpall, Applejack Wine & Spirits, LLC ___________________________ Chief Executive Officer State of Colorado ) ) ss. County of __________ ) The foregoing Agreement was acknowledged before me this ___ day of ____________, 20___, by _______________________________ as _____________________ [title] of _____________________________________, Inc. WITNESS MY HAND AND OFFICAL SEAL. My Commission expires: __________________ _________________________________ Notary Public 7 CITY OF WHEAT RIDGE By: ________________________ Name: Bud Starker Title: Mayor ATTEST: _______________________ Name: Steve Kirkpatrick Title: City Clerk State of Colorado ) ) ss. County of Jefferson ) The foregoing Agreement was acknowledged before me this ____ day of ____________, 20___, by Bud Starker as Mayor and Steve Kirkpatrick as City Clerk, respectively, of the City of Wheat Ridge, Colorado. WITNESS MY HAND AND OFFICAL SEAL. My Commission expires: __________________ ___________________________ Notary Public 8 EXHIBIT A ENHANCED SALES TAX INCENTIVE PROGRAM (ESTIP) Section 1. Enhanced Sales Tax Incentive Program Amended: Division 4 of Article I of Title 22 of the Wheat Ridge Code of Laws, entitled “Enhanced Sales Tax Incentive Program,” is hereby amended to read: Sec. 22-73. Program established. There is hereby established within the city an enhanced sales tax incentive program. Sec. 22-74. Purpose. The purpose of the enhanced sales tax incentive program created by this division is to encourage the establishment and/or substantial expansion of retail sales tax generating businesses within the city, thereby stimulating the economy of and within the city, thereby providing employment for residents of the city and others, thereby further expanding the goods available for purchase and consumption by residents of the city, and further increasing the sales taxes collected by the city, which increased sales tax collections will enable the city to provide expanded and improved municipal services to and for the benefit of the residents of the city, while at the same time providing public or public-related improvements at no cost, or at deferred cost, to the city and its taxpayers and residents. Sec. 22-75. Definitions. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Enhanced sales tax shall mean the amount of sales tax collected by the city over and above a Base Amount negotiated by, and agreed upon by, the applicant and the city, and which amount is approved by the city council, which Base Amount shall never be lower than the amount of sales taxes collected by the city at the property in question in the previous twelve (12) months plus a reasonable and agreed upon percentage of anticipated increase in sales taxes, or, in the case of a newly established business, an amount which represents the good faith determination by the 9 applicant and the city as to the amount of sales taxes which could be generated from the new business without the participation by applicant in the ESTIP created under this division. ESTIP means the enhanced sales tax incentive program created under this division. Owner or proprietor shall mean the record owner or operator of an individual business, or, in the case of a shopping center, the owner of the real property upon which more than one (1) business is operated, provided that the owner (whether an individual, corporation, partnership or other entity) is the owner or lessor of the individual businesses operated thereon. Sec. 22-76. Participation. Participation in ESTIP shall be based upon approval by the city council exercising its legislative discretion. Any owner or proprietor of a newly established or proposed retail sales tax generating business or location, or the owner or proprietor of an existing retail sales tax generating business or location which wishes to expand substantially, may apply to the city for inclusion within the ESTIP provided that the new or expanded business is reasonably likely, in the Council’s judgment, to generate enhanced sales taxes of at least Ten Thousand Dollars ($10,000) in the first 12 months following the approval of the agreement. Sec. 22-77. Approval of agreement; use of funds generally. Approval by the city council of an agreement implementing this ESTIP shall entitle the successful applicant to share in enhanced sales taxes derived from applicant's property or business in an amount which shall not in any event exceed the enhanced sales taxes; provided, however, the applicant may use such amounts only for public and/or public-related purposes such as those specified herein and which are expressly approved by the city council at the time of consideration of the application. The time period in which the enhanced sales taxes may be shared shall not commence until all public or public-related improvements are completed, and shall be limited by the city council, in its discretion, to a specified time, or until a specified amount is reached. Sec. 22-78. ELIGIBLE Uses. The uses to which the shared enhanced sales taxes may be put by an applicant shall be strictly limited to those which are public or public- 10 related in nature. For the purposes of this division, public or public-related purposes shall mean public improvements, including but not limited to streets, sidewalks, curbs, gutters, pedestrian malls, street lights, drainage facilities, landscaping, decorative structures, facades, statuaries, fountains, identification signs, traffic safety devices, bicycle paths, off- street parking facilities, benches, restrooms, information booths, public meeting facilities, and all necessary, incidental, and appurtenant structures and improvements, together with the relocation and improvement of existing utility lines, and any other improvements of a similar nature which are specifically approved by the city council upon the city council's finding that said improvements are public or public-related improvements, and that such improvements shall enhance the competitive position of the applicant within the Denver metropolitan area marketplace. Sec. 22-79. Increments, sharing of funds. The Base figure for sales taxes shall be divided into twelve (12) monthly increments, which increments are subject to agreement between the parties, and approval by the city council, and which increments shall be reasonably related to the average monthly performance of the business or property in question, or similar businesses in the area (i.e. adjust for seasonal variations). If in any month the agreed upon figure is not met by the applicant so as to create enhanced sales tax for that month, no funds shall be shared with THE applicant for that month, and no increment shall be shared until that deficit, and any other cumulative deficit, has been met, so that at the end of any twelve-month cycle, no funds have been shared in excess of the agreed enhanced sales taxes. Sec. 22-80. Revenues restricted. It is an overriding consideration and determination of the city council that existing sources of city sales tax revenues shall not be used, impaired, or otherwise affected by this ESTIP. Therefore, it is hereby conclusively determined that only enhanced sales taxes generated by the properties described in an application shall be subject to division under this ESTIP. It shall be the affirmative duty of the Sales Tax Division to collect and hold all such enhanced sales taxes in a separate account apart from the sales taxes generated by and collected from the other sales tax generating uses and businesses within the city and to provide an accounting system which accomplishes the overriding purpose of this section. The city council finds and declares that this division would not be adopted or implemented but for the provisions of this section. 11 Sec. 22-81. Criteria for approval of agreement. Approval of an ESTIP agreement shall be given by the city council, at a public hearing, held as a portion of a regularly scheduled city council meeting. Notice of which has been published in a newspaper of general circulation at least seven (7) days prior the hearing. The Council’s determination of the amount of sales tax to be shared shall be based upon the identified need or value the business offers to the community in terms of sales tax generation, investment in the community, or increased employment based upon the following criteria: (1) The amount of enhanced sales taxes which are reasonably to be anticipated to be derived by the city through the expanded or new retail sales tax generating business; (2) The public benefits which are provided by the applicant through public works, public improvements, additional employment for city residents, etc.; (3) The amount of expenditures which may be deferred by the city based upon public improvements to be completed by the applicant; (4) The conformance of the applicant's property or project with the comprehensive plan and zoning ordinances of the city; (5) The agreement required by section 22-82 having been reached. Sec. 22-832. Agreement required. A) Each agreement submitted to the city shall be subject to approval by the council solely on its own merits. The approved agreement shall be executed by the owner and the city, and shall, at a minimum, contain: (1) A list of those public or public-related improvements which justify applicant's approval, and the amount which shall be spent on such improvements; (2) The maximum amount of enhanced sales taxes to be shared, and the maximum time during which the agreement shall continue, it being expressly understood that any such agreement shall expire and be of no further force and effect upon the occurrence of the earlier to be reached of the maximum time of the agreement (whether or not the maximum amount to be shared has been reached) or the maximum amount to be shared (whether or not the maximum time set forth has expired); (3) A statement that the agreement is a personal agreement which is not transferable and which does not run with the land; 12 (4) That the agreement shall never constitute a debt or obligation of the city within any constitutional or statutory provision; (5) The Base Amount which is agreed upon by month, and the fact that if, in any month as specified, sales taxes received from the property do not at least equal such amount, that there shall be no sharing of funds for such month; (6) The Base Amount shall be agreed upon which shall consider the historic level of sales at the property in question, or a similar property within the area in the event of a new business, and a reasonable allowance for increased sales due to the improvements and upgrades completed as a result of inclusion within this program; (7) A provision that any enhanced sales taxes subject to sharing shall be escrowed in the event there is a legal challenge to this enhanced sales tax incentive program or the approval of any application therefor; (8) An affirmative statement that the obligations, benefits, and/or provisions of this agreement may not be assigned in whole or in any part without the expressed authorization of the city council, and further that no third party shall be entitled to rely upon or enforce any provision hereof; (9) Any other provisions agreed upon by the parties and approved by the city council. B) Approval shall be by motion adopted by the majority of the entire City Council. Sec. 22-843. No joint venture; liability. The city council has enacted this ESTIP as a joint benefit to the public at large and to private owners for the purposes of providing the city with increased sales tax revenues generated upon and by properties improved as a result of this program; public improvements being completed by private owners through no debt obligation being incurred on the part of the city, and allowing applicants an opportunity to improve properties which generate sales activities, which improvements make those properties more competitive in the marketplace and further provide to the applicant additional contingent sources of revenues for upgrading such properties. Notwithstanding any provision hereof, by adopting this program and approving agreements under the same, the city shall never be a joint venture in any private entity or activity which participates in this ESTIP and the city shall never be liable or responsible for any debt or obligation of any participant in ESTIP. 13 EXHIBIT B Legal Description of the Property 15 16 17 18 19 21 EXHIBIT C Qualifying Public Improvement Costs: Eligible Costs Exterior Costs 448,829$ West Signage 38,305$ Planters 17,411$ Total Exterior 504,546$ Ceiling 8,225$ Flooring 7,058$ Paint 19,875$ Lighting 13,160$ Curbside Doors/ Access 3,500$ Curbside / Back of House Hard Costs 51,818$ Soft Cost Allocation 6,394$ Total Curbside/ Back of House 58,212$ Floor Replacement 224,955$ Fire Sprinklers/ Alarms 94,050$ Ceilings 115,225$ Paint 23,595$ Lighting 150,480$ Help Desk 75,000$ Interior Eligible Hard Costs 683,305$ Soft Cost Allocation 109,849$ Total Eligible Interior 793,153$ Portion of Indirect 149,508$ Portion of Contingency 161,286$ Portion of Architectural / Legal 274,054$ Total Eligible 2,854,459$ Total Modernization Project Costs: 22 Applejack Cost Summary Construction Costs 2,334,584$ Refrigeration 82,672$ Shelving 83,943$ Subtotal 2,501,200$ Contingency @ 10%250,120$ Construction Total 2,751,320$ Legal + Architectural 275,000$ Permits Fees and Taxes 150,000$ Construction Grand Total 3,176,320$ Advertising 1,175,000$ Software Upgrades 804,500$ Delivery Upgrades 296,500$ Warehouse 663,000$ Consumer App 254,080$ HVAC 106,000$ Merchandising Consultant 68,750$ Grand Total 2019-2021 6,544,150$ 23 24 25 ITEM NO: DATE: August 10, 2020 REQUEST FOR CITY COUNCIL ACTION TITLE: COUNCIL BILL NO. 16-2020 – AN ORDINANCE APPROVING THE DISPOSITION OF EXCESS REAL PROPERTY HELD BY THE CITY ADJACENT TO RIDGE ROAD BETWEEN TAFT AND TABOR STREETS PUBLIC HEARING ORDINANCES FOR 1ST READING (07/27/2020) BIDS/MOTIONS ORDINANCES FOR 2ND READING (08/10/2020) RESOLUTIONS QUASI-JUDICIAL: YES NO Community Development Director City Manager ISSUE: The City of Wheat Ridge owns a sliver of real property located on the north side of Ridge Road, between Taft Court and Tabor Street (“the Property”). It essentially functions as additional ROW that has been deemed to be excessive and unnecessary by the Community Development Engineering Division. PRIOR ACTION: Ordinance No. 1653 was passed on August 27, 2018 unanimously by City Council with the intent of vacating any City-held interest in the Property and that the Property revert to the adjacent private owner to the north; however, because the City at that time did not actually own the property, the vacation ordinance was ineffective. The City now owns the subject property, so that process is being repeated. FINANCIAL IMPACT: None. The excess real property is currently owned and maintained by the City of Wheat Ridge. BACKGROUND: On June 23, 2011 the City entered into an Intergovernmental Agreement (“Agreement”) with the Regional Transportation District (“RTD”) for the Gold Line commuter rail project (the 2 Council Action Form – Disposition of Excess Real Property August 10, 2020 Page 2 “Project”). The Agreement stated the rights and obligations of the City and RTD with respect to the Project and the City’s local agency contribution. Section 13.2 of the Agreement specifies that the City will own and maintain all structures and improvements related to the Project or necessary to accommodate the Project. The Property was originally acquired by RTD to allow for grading during the construction of the Ridge Road roadway improvements. Upon completion of the Ridge Road improvements the Property was no longer needed by RTD and identified for disposition to the City. In July of 2017, numerous parcel conveyances from RTD to the City were delivered to the Engineering Division. Among the batch of conveyances was a Quit Claim Deed for a parcel RTD designated as GL-55. Engineering misidentified the Quit Claim Deed as being for the Property, and a ROW Vacation Ordinance was processed and passed by Council. However, the actual and correct RTD designation of the Property is GL-55A, and title to the Property was never actually conveyed prior to the Ordinance. This error has been corrected and RTD has provided a Quit Claim Deed to convey title to the Property to the City. Since the City has no need for the Property, and the Property is needed for development of the adjacent private property to the north, this ordinance repeats the 2018 request to vacate City interest in the Property, and it will be conveyed to the Hance Ranch Development, LLC, a Colorado limited liability company, being the owners of the adjacent land. Staff originally requested that RTD simply convey the land to the property owner, but RTD is prohibited from conveying to a private entity. While this is a longer process than originally conceived, it achieves the same intent of the 2017/2018 conveyances and vacations. The Property proposed for disposition ranges in width from approximately 21 feet on the west end at Taft Court, to 17 feet near the center, to approximately 28 feet on the east end at Tabor Street. The area proposed for disposition is 7,067 square feet (0.162 acres), more or less, and is more particularly described in the Exhibit A attached to the ordinance. RECOMMENDATION: Staff recommends approval of the attached ordinance. RECOMMENDED MOTION: “I move to approve Council Bill No. 16-2020, an ordinance approving the disposition of excess real property held by the City adjacent to Ridge Road between Taft and Tabor Streets and that it takes effect 15 days after final publication.” Or, “I move to postpone indefinitely Council Bill No. 16-2020, an ordinance approving the disposition of excess real property held by the City adjacent to Ridge Road between Taft and Tabor Streets for the following reason(s) ________________.” Council Action Form – Disposition of Excess Real Property August 10, 2020 Page 3 REPORT PREPARED AND REVIEWED BY: Dave Brossman, Development Review Engineer Lauren Mikulak, Planning Manager Kenneth Johnstone, Community Development Director Patrick Goff, City Manager ATTACHMENTS: 1. Council Bill No. 16-2020 2. Exhibit A - Legal Description CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER STITES Council Bill No. 16 Ordinance No. _________ Series 2020 TITLE: AN ORDINANCE APPROVING THE DISPOSITION OF EXCESS REAL PROPERTY HELD BY THE CITY ADJACENT TO RIDGE ROAD BETWEEN TAFT AND TABOR STREETS WHEREAS, the City of Wheat Ridge, Colorado (“City”) owns certain real property within the City generally located at Ridge Road, between Taft Court and Tabor Street, and more particularly described on the attached Exhibit A; (the “Property”); and WHEREAS, the Property was originally acquired by the Regional Transportation District (RTD) for use in connection with the Gold Line commuter rail project; and WHEREAS, after completion of the project, RTD determined the Property was not necessary for its purposes, and intended to transfer the Property to the City, however this transfer did not take place; and WHEREAS, on August 27, 2018, the City, believing it was in title to the Property as unneeded right-of-way, adopted Ordinance 1653, vacating the same, intending that the Property revert to the adjacent private owner to the north; however, because the City at that time did not actually own the property, the vacation ordinance was ineffective; and WHEREAS, RTD has now conveyed the Property to the City, since under its policies it may not convey to a private entity; and WHEREAS, because the City has no need for the Property, and the Property is needed for development of the adjacent private property to the north, the Council wishes to approve its conveyance to that owner as permitted by the Charter. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Conveyance of Property Approved. Pursuant to Charter Section 16.5, the City Council hereby approves the conveyance of the real property more particularly described on Exhibit A, attached hereto and incorporated herein by this reference, to Hance Ranch Development, LLC, a Colorado limited liability company, for nominal consideration, and authorizes and directs the Mayor and City Clerk to execute such instruments as required to accomplish the same. Section 2. Severability, Conflicting Ordinances Repealed. If any section, subsection or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses ATTACHMENT 1 shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. Section 3. Recording. This Ordinance shall be filed for record with the office of the Jefferson County Clerk and Recorder. Section 4. Effective Date. This Ordinance shall take effect fifteen (15) days after final publication, as provided by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of 7 to 0 this 27th day of July, 2020, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge, and Public Hearing and consideration on final passage set for August 10, 2020 at 7:00 p.m., as a virtual meeting. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of ___ to ___ this 10th day of August, 2020. SIGNED by the Mayor on this 10th day of August, 2020. _________________________ Bud Starker, Mayor ATTEST: _________________________ Steve Kirkpatrick, City Clerk Approved as to Form _________________________ Gerald E. Dahl, City Attorney First Publication: July 30, 2020 Second Publication: August 13, 2020 Jeffco Transcript Effective Date: August 28, 2020 EXHIBIT A The Property LEGAL DESCRIPTION EX H I B I T A AT T A C H M E N T 2 ITEM NO: DATE: August 10, 2020 REQUEST FOR CITY COUNCIL ACTION TITLE: COUNCIL BILL NO. 15-2020 – AN ORDINANCE, REPEALING CHAPTER 16, ARTICLE X "MASSAGE PARLORS" AND REENACTING REGULATION OF MASSAGE BUSINESSES BY AMENDING CHAPTER 11, "LICENSES, PERMITS AND MISCELLANEOUS BUSINESS REGULATIONS", BY THE ADDITION OF A NEW ARTICLE X, ENTITLED "MASSAGE BUSINESSES" AND MAKING CONFORMING AMENDMENTS TO CHAPTER 2, ARTICLE V "ADMINISTRATIVE ENFORCEMENT" AND CHAPTER 26 "ZONING AND DEVELOPMENT" PUBLIC HEARING ORDINANCES FOR 1ST READING (07/27/2020) BIDS/MOTIONS ORDINANCES FOR 2ND READING (08/10/2020) RESOLUTIONS QUASI-JUDICIAL: YES NO ____________________________ ____________________________ Chief of Police City Manager ISSUE: The process of regulation and inspection of massage businesses requires updating in order to protect the health and safety of the community, deter criminal activity such as human trafficking and prostitution, and ensure that legitimate massage businesses within the City are able to thrive. PRIOR ACTION: Council previously enacted article X in its current form and in its entirety on October 22, 2001. In 2015 Council adopted an ordinance amending sections 16-224, 16-225, and 16-226 of the Wheat Ridge Code of Laws, concerning massage parlors, to delete references to obsolete state statutes and clarify statutory authority. Due to numerous changes in the landscape of human trafficking and the use of massage businesses as cover for such, Council was asked by staff in late 2019 for permission to examine how changes in the ordinance could provide avenues to 3 Council Action Form – Massage Businesses August 10, 2020 Page 2 increase the health and safety of community members visiting such establishments, as well as provide law enforcement with practical tools to identify, interdict, and remove illicit massage businesses from the City. Council granted permission to make such an examination, requesting stakeholder involvement in the process. Staff has facilitated a stakeholder meeting, and discussed issues with stakeholders apart from the meeting. Results from these conversations show support for this ordinance from both advocates for the massage therapy industry and local businesses. FINANCIAL IMPACT: The overall financial impact of this ordinance is negligible to both the City and massage therapy businesses. The new ordinance will require massage businesses to obtain a massage business license for $25 annually. Staff propose the fee be waived for the first 30 days after enactment of the ordinance. Solo practitioners are exempted from the new licensing requirements provided they meet certain criteria. BACKGROUND: Subsequent to Council's authorization to look at a revision to the City Code of Laws related to massage oriented businesses, a cross-sectional working group of city staff was formed to examine the issue as completely as possible, and provide guidance in the creation of the new ordinance. With input from staff, the City Attorney crafted an ordinance accounting for all the concerns brought forth. Requirements of the new ordinance include: • All therapists must have a valid Colorado massage therapist license, a copy of which must be available for inspection on-site • The business must operate with a licensed manager on site • The business may not operate between the hours of 9:00 p.m. and 6:00 a.m. • All interior and exterior doors must remain unlocked unless the business is operated as a home occupation or there is only one employee on premise • The business cannot be used for housing, sheltering or harboring any person, unless the business is operated as a home occupation • Employees must be fully clothed • A table shower is prohibited unless it is approved as part of the massage business license issuance • No sexual acts can take place in the course of business. Any such acts must be reported to the Wheat Ridge Police Department • The business must comply with City inspection requests and may not attempt to elude city inspection by exiting out back doors or remaining behind locked doors • Employees of the business must provide identification to the city inspector upon request • The business must maintain a list of all employees and contractors on site including name, position, address, and start date available for inspection • A log of each massage given including, date, time, type of massage and therapist must be maintained and available for inspection onsite • Full compliance with the new ordinance is expected within 90 days of enactment Council Action Form – Massage Businesses August 10, 2020 Page 3 In an effort to understand and be responsive to the concerns of local businesses that will be impacted by any change in the ordinance, staff facilitated a virtual town-hall style meeting to hear questions and provide answers to concerned stakeholders. Every massage therapy business licensed in the City of Wheat Ridge potentially impacted was provided a summary of the proposed changes and an invitation to the virtual meeting (attached). Administrative highlights of the proposed ordinance include: • Massage businesses will be required to obtain two additional city licenses due to the unique nature of the industry. 1. Massage Business License ($25. Free if obtained within 30 days after enactment of the ordinance). 2. Massage Business Manager’s License ($0) • Some businesses are exempt from these regulations. These include state-regulated businesses such as training rooms, medical offices, and chiropractic facilities, as well as solo practitioners who meet specific criteria. • Applications can be denied for various reasons including previous massage license suspensions, revocations, the surrendering of a state issued Massage Therapist License, or a history of criminal activity such as sexual misconduct with a child, prostitution, embezzlement, money laundering, or other crimes raising issues about the character of the applicant. Seven businesses RSVP’d for the virtual meeting that was held at 6:30 p.m. on Wednesday, July 8. One attendee joined the meeting; an industry representative from the American Massage Therapy Association for Colorado. She fully supports this ordinance and when asked directly if there were any portion of the ordinance a legitimate business would have trouble complying with she responded, "no". She did have one suggestion for improvement, and that is to find a way to ensure that illicit businesses are not easily able to switch their practice from “massage” to “reflexology” and a provision to enable staff to respond to that occurrence is included in the proposed ordinance. Staff received a follow up call from a business who had RSVP’d but was unable to attend the meeting to express support for the ordinance. Staff also received written communication from one business owner who shared several concerns about the ordinance and the need to enact this ordinance. Staff continues to communicate with this particular stakeholder to clarify the necessity and rationale for some of the provisions in the new ordinance, as well as acknowledge and address her concerns. Staff is currently developing an outreach and implementation plan that will ensure all current businesses become aware of the ordinance change, and are afforded ample opportunity and assistance by City staff to comply with the new ordinance and incur no out of pocket costs. Council Action Form – Massage Businesses August 10, 2020 Page 4 RECOMMENDATIONS: Staff recommends approval of the ordinance. RECOMMENDED MOTION: “I move to approve Council Bill No. 15-2020, an ordinance, Repealing Chapter 16, Article X "Massage Parlors" and Reenacting Regulation of Massage Businesses by Amending Chapter 11, "Licenses, Permits and Miscellaneous Business Regulations", by the Addition of a New Article X, Entitled "Massage Businesses" and Making Conforming Amendments to Chapter 2, Article V "Administrative Enforcement" and Chapter 26 "Zoning and Development, on second reading, and that it take effect 15 days after final publication.” Or “I move to postpone indefinitely Council Bill No. 15-2020, an ordinance, Repealing Chapter 16, Article X "Massage Parlors" and Reenacting Regulation of Massage Businesses by Amending Chapter 11, "Licenses, Permits and Miscellaneous Business Regulations", by the Addition of a New Article X, Entitled "Massage Businesses" and Making Conforming Amendments to Chapter 2, Article V "Administrative Enforcement" and Chapter 26 "Zoning and Development"” for the following reason(s)_______________.” REPORT PREPARED/REVIEWED BY: Darrel Guadnola, Investigations Commander Dave Pickett, Division Chief Chris Murtha, Chief of Police Allison Scheck, Director of Administrative Services Patrick Goff, City Manager ATTACHMENTS: 1. Council Bill No. 15-2020 2. Massage Therapists FAQ CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER URBAN COUNCIL BILL NO. 15 ORDINANCE NO. _______ Series 2020 TITLE: AN ORDINANCE, REPEALING CHAPTER 16, ARTICLE X “MASSAGE PARLORS” AND REENACTING REGULATION OF MASSAGE BUSINESSES BY AMENDING CHAPTER 11, “LICENSES, PERMITS AND MISCELLANEOUS BUSINESS REGULATIONS”, BY THE ADDITION OF A NEW ARTICLE X, ENTITLED “MASSAGE BUSINESSES” AND MAKING CONFORMING AMENDMENTS TO CHAPTER 2, ARTICLE V “ADMINISTRATIVE ENFORCEMENT” AND CHAPTER 26 “ZONING AND DEVELOPMENT” WHEREAS, the City of Wheat Ridge, Colorado, (the "City"), is a home rule municipality, organized and existing under and by virtue of Article XX, Section 6 of the Colorado Constitution; and WHEREAS, Section 12-235-101 et seq., C.R.S., known as the “Massage Therapy Practice Act" ("the Act") regulates the profession of massage therapy to provide for a consistent statewide certification and oversight of massage therapy professionals; and WHEREAS, the Act does not prevent the City from regulating the massage therapy business and the City Council finds that the purpose and intent of this Act was to regulate and protect legitimate massage therapy businesses by requiring persons performing massage therapy to be licensed by the state’s Department of Regulatory Affairs, in order to safeguard and promote the public health, safety and welfare of the citizens of the state; and WHEREAS, the City Council recognizes that massage is a legitimate health care professional activity that provides benefits to the residents of the City; and WHEREAS, the reputation and success of legitimate massage therapy businesses is denigrated and undermined by businesses and individuals who mask their unlawful sexual activities and human trafficking by falsely posing as legitimate massage therapy businesses; and WHEREAS, the City Council finds that the licensing exclusions provided herein to certain businesses are reasonable as they are either currently subject to licensing and regulation by the State of Colorado or they pose a very low risk of engaging in unlawful sexual or human trafficking activities; and WHEREAS, there are currently no massage parlors in the City that will be adversely affected by the repeal of the provisions of Chapter 16, Article X of the City Code (the "Code"). ATTACHMENT 1 -2- NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO THAT: Section l. Chapter 16, Article X of the Wheat Ridge Code of Laws is hereby repealed. Section 2. Chapter 11 of the Wheat Ridge Code of Laws is hereby amended by the addition of a new Article X, entitled Massage Businesses, as follows: ARTICLE X. – MASSAGE BUSINESSES Section 11-230. – Purpose. The purpose of this article is to promote the public health, safety and welfare of the public, including but not limited to its citizens and residents, by regulating and licensing massage businesses. Section 11-231. – Authority. This article is adopted under the authority conferred by §31-15-401(1)(b), C.R.S. to make all regulations necessary or expedient for the promotion of health or suppression of disease and by §31-15-501(1)(c), C.R.S. to license and regulate businesses, and the home-rule authority conferred by Article XX, Section 6 of the Colorado Constitution, . Section 11-232. – Definitions. Except as otherwise indicated by the context, the following words, terms and phrases, shall have the following meanings for purposed of this division: Agent means an individual designated by a publicly held corporation to act on behalf of the corporation under this article. An agent shall be a bona fide resident of Colorado, a citizen or legal resident of the United States, or otherwise authorized to work in the United States. Applicant means an individual acting on behalf of a massage business to apply for a license. Client means an individual who enters into an agreement for massage therapy for a fee, income, or compensation of any kind within the city. Control means the power to direct or cause the direction of the management and policies of an applicant, licensee or controlling person, in any way. Controlling Person means a person directly or indirectly possessing control of an applicant or licensee. Employee means any person who performs any service at a massage business on a full-time, part-time, or contract basis, whether or not the person is designated an employee, independent contractor or otherwise. Employee does not include a person exclusively engaged in the repair or maintenance of the massage business, or for the delivery of goods to the licensee. -3- Inspector means any person authorized by the City Manager to enforce the provisions of this Article. Licensee means the person or entity to whom a massage business license is issued, by the city. Manager means an on-site natural person or persons authorized by the licensee to exercise overall operational control of the business, to supervise employees, or to fulfill any of the functions required of a manager by this article. Massage Business means any place of business where any massage or massage therapy is practiced or administered. The term "massage business" shall not include: (a) Training rooms of public and private schools accredited by the state board of education or approved by the state division charged with the responsibility of approving private occupational schools. (b) Training rooms of recognized professional or amateur athletic teams. (c) Offices, clinics, and other facilities at which medical professionals licensed by the state of Colorado, or any other state, provide massage services to the public in the ordinary course of their medical profession. (d) Medical facilities licensed by the state, including but not limited to hospitals, clinics, nursing and convalescent homes and other similar institutions. (e) Chiropractors licensed by the state and their facilities. (f) Barber shops, beauty salons, and other facilities at which barbers and cosmetologists licensed by the state provide massage services to the public in the ordinary course of their professions. (g) Bona fide athletic clubs not engaged in the practice of providing massage services to their members or to the public for remuneration; for purposes of this definition, if an athletic club does not receive more than 10 percent of its gross income providing massages to its members, or to the public, such shall be prima facie evidence of its status as a bona fide athletic club. (h) A place of business where an individual offers to perform or performs massage therapy: (1) For not more than 72 hours in any six-month period and (2) As part of a public or charity event, the primary purpose of which is not to provide massage therapy. (i) A place of business where a state-licensed massage therapist practices as a solo practitioner, and complies with all required acts and limitations of operation of this section and; (1) Does not use a business name or assumed name; or -4- (2) Uses a business name or an assumed name and provides the massage therapist's full legal name, or license number in each advertisement, and each time the business name or assumed name appears in writing; and (3) Does not maintain or operate a table shower as defined in this section. (j) A place of business which limits its business to offering the following practices performed by persons who: (1) Do not claim expressly or implicitly to be massage therapists; and (2) Limit their work to one or more of the following practices: a. Use touch, words and directed movement to deepen awareness of existing patterns of movement and suggest new possibilities of movement. Such practices include, but are not limited to the Feldenkrais method of somatic education, the "Rolf Institute's Rolf Movement Integration", the Trager approach to movement education, body-mind centering and ortho-bionomy; or use minimal touch over specific points on the body to facilitate balance in the nervous system. Such practices include, but are not limited to Bowenwork; or b. Use touch to affect the energy systems, acupoints or qi meridians (channels of energy) of the human body. Such practices include, but are not limited to acupressure, Asian bodywork therapy, biodynamic craniosacral therapy", jin shin do body-mind acupressure, polarity, polarity therapy, and polarity therapy bodywork, qigong, reiki, shiatsu, and tuina; or c. Use touch to effect change in the structure of the body while engaged in the practice of structural integration. Such practices include, but are not limited to, practitioners of Rolfing structural integration, the Rolf method of structural integration, and Hellerwork; or d. Apply pressure to reflex points on the feet, hands and ears to bring the body into balance, thereby promoting the wellbeing of clients. Such practices include, but are not limited to reflexology; and (3) If any of the practices listed in (2) above have nationally recognized certification available in their particular practice industry, the practitioners shall hold current active certification or recognition by a professional organization or credentialing agency in their respective industry that: a. Requires a minimum level of training specific to the discipline, demonstration of competence, and adherence to an approved scope of practice and ethical standards; and -5- b. Maintains disciplinary procedures to ensure adherence to the requirements of the organization or agency; and c. Provide consumers with contact information for the organization or agency in the practitioner's place of business. Massage or Massage Therapy means a system of structured touch, palpation, or movement of the soft tissue of another person's body in order to enhance or restore the general health and well-being of the recipient. Such system includes, but is not limited to, techniques such as effleurage, commonly called stroking or gliding; petrissage, commonly called kneading; tapotement or percussion; friction; vibration; compression; passive and active stretching within the normal anatomical range of movement; hydro massage; and thermal massage. Such techniques may be applied with or without the aid of lubricants, salt or herbal preparations, water, heat, or a massage device that mimics or enhances the actions possible by human hands. Massage Therapist is an individual that has fulfilled the requirements for state licensure under Section 12-235-101 et seq., C.R.S., and has a valid massage therapist license issued by the state of Colorado to engage in the practice of massage therapy. Mobile Massage Unit means a vehicle or other movable enclosure specifically equipped for a massage therapist to provide massage therapy inside the vehicle or enclosure. Sexual Act means sexual contact, sexual intrusion, or sexual penetration as defined in Section 18-3-401, C.R.S. Spa Establishment means a commercial massage business that offers or engages in personal services that call for the patron to disrobe, such as body wraps, hydro mineral wraps, body polish, body wash, baths and hydro tub soak. Table Shower or Vichy Shower means an apparatus for the bathing or massaging of a person on a table or in a tub. Section 11-233. Licenses generally; minimum requirements. The licenses required by this article are in addition to any other applicable licenses or permits required by the city, county or state. Massage facilities licensed under this article shall comply with all other applicable city ordinances and laws, including the city zoning ordinances. Section 11-234. Licenses required. (a) No person or entity shall be permitted to operate a massage business in the city without a valid massage business license in addition to the business license required by Chapter 11, Article II. Additionally, no person or entity shall be permitted to operate such massage business without a licensed manager on site at all times, except as provided in (c) below. A massage business may obtain manager’s licenses for more than one individual. -6- (b) No person shall be permitted to work as a manager of a massage business without a valid massage business manager's license. (c) An individual massage therapist operating a massage business as a solo practitioner is not required to obtain a massage business manager's license. Section 11-235. Application. (a) In addition to the requirements of this Chapter and Chapter 11, Article II, each application for a massage business license shall contain the following information: (1) If the applicant is an individual; satisfactory proof that he or she is 18 years of age or older. (2) If the applicant is a legal entity; satisfactory proof that each of the individual officers, directors, managers, partners, members, principal owners, and/or anyone with 10 percent or more financial interest of such entity are 18 years or older. (3) Whether the applicant, or any of the other individuals required to be listed· in the application, have been convicted of, or plead "nolo contendere" to, a felony or misdemeanor, in any federal, state or municipal court in any of the United States jurisdictions or possessions, for prostitution, solicitation of prostitution, fraud, theft, embezzlement, money laundering or similar crimes. Failure to disclose any criminal conviction may result in denial of the license application. (4) Whether the applicant, or any of the other individuals required to be listed in the application, has had a previous license under this or any other similar massage business ordinance from another jurisdiction or possession of the United States, denied, suspended, or revoked, and, if so, the name and location of the massage business for which such license was denied, suspended, or revoked, as well as the date of such denial, suspension, or revocation. (5) Whether the applicant, or any of the other individuals required to be listed in the application, has been an officer, director, manager, partner, member, and/or principal owner of any legal entity which currently or previously operates or operated a massage business or business meeting the definition of massage business in this article and the name, dates of operation and location of such business or businesses. (6) Satisfactory proof of the applicant's ownership or right to possession of the premises wherein the massage business will be operated. The applicant shall have a continuing obligation to provide, where applicable, subsequent evidence of the right to possession of the premises. -7- (b) The applicant for a massage business manager's license shall submit an application for a manager's license on a form prescribed by the city treasurer and filed at the offices of the city treasurer, which shall contain the following information: (1) If the applicant is an individual; satisfactory proof that he or she is 18 years of age or older. (2) The applicant's name, address, date of birth, and telephone number. If the applicant is a licensed massage therapist, the state massage therapy license number. (3) Whether the applicant or any of the other individuals required to be listed in the application meet the requirements specified in paragraph (a) above and, if the applicant or any other person listed in the application have been involved in a criminal act as described in paragraph(a) above, the date and place of conviction, and the disposition. (4) Any disciplinary actions taken by any state or local massage therapy board or criminal convictions for violations of a massage therapy practice act in any jurisdiction or possession of the United States, and the result of such disciplinary actions, whether the applicant is a licensed massage therapist or not. Section 11-236. Review by other departments. (a) Prior to the issuance of any massage business license or a massage business manager's license, the corresponding application shall be submitted to the Police Department for review and comment. The Police Department shall provide any relevant and available information as to whether the applicant and each of the individuals required to be listed in the corresponding license application meet the requirements in section 11-235. Such review shall be completed within 20 days after the license application is submitted. (b) The Police Department shall only be required to provide the information specified in subsection (a) of this section and shall not be authorized to approve or disapprove any license application. Section 11-237. Issuance; denial. (a) If after an investigation, the city treasurer finds, in addition to any findings required by section 11-25, that the individual applicant and each of the individuals required to be listed in the massage business license application meet the requirements in subsection 11-235(a) and: (1) Are 18 years of age or older; and -8- (2) Shall not; (a) have voluntarily surrendered any license to practice as a massage therapist or operate a massage business as a result of, or while, under civil or criminal investigation; or (b) have had a license to practice as a massage therapist or operate a massage business or similar license, denied or revoked by the State of Colorado or a political subdivision of Colorado, or a regulatory board in another United States jurisdiction or possession, for an act that occurred in that jurisdiction or possession that would be a violation under this article; and (3) Shall not be a registered sex offender or required by law to register as a sex offender; and (4) Shall not have any prior conviction for an offense involving sexual misconduct with a child, including sexual abuse, sexual assault, sexual conduct, sexual molestation and sexual exploitation; and (5) Subject to the requirements of Section 24-5-101, C.R.S., shall not have any prior convictions or pending violations for any crimes, including but not limited to prostitution, or of operating a prostitution enterprise, theft, embezzlement, or money laundering; and (6) The location where the license is applied for has not had a similar license revoked or surrendered for cause within the last 24 months; and (7) The character, record, or reputation of the applicant, his or her agent, or his or her principal does not indicate that potential violations of this chapter are likely to occur if a license is issued to the applicant. Then he or she shall, within 30 days following receipt of the, license application, approve the issuance of massage business license to the applicant for use at the location identified in the license application as the situs of the business. In the event of a denial the treasurer shall explain with reasonable details in writing the reason for the denial and the applicant’s rights to a hearing under section 11-32. (b) If, after investigation, the treasurer finds, in addition to the findings required by section 11-25(a), that: (1) The applicant for a massage business manager's license meets all the requirements of subsection 11-235(b); and (2) If the applicant will be performing massage or massage therapy, the applicant has completed all requirements of section 12-235-101 et seq., C.R.S, and holds a valid state massage therapist license. -9- Then he or she shall, within 30 days following receipt of the license application, issue a manager's license to the applicant. (c) Upon the sale or transfer of any interest in a massage business, the license issued pursuant to this article shall be null and void, and a new application shall be required. Section 11-238. Temporary license. (a) The treasurer may issue a temporary massage business license upon receipt of a complete massage business license application involving the sale or change in ownership of a business. Such license shall be issued for 30 days and renewed every 30 days until approval or denial of the massage business license. (b) The treasurer may issue a temporary massage business manager license upon receipt of a complete massage manager license application upon sale, change of ownership, or change of manager of an existing licensed massage business. Such license shall be issued for 30 days and may be renewed for good cause for additional 30-day periods at the discretion of the treasurer. Section 11-239. Limitations on operation. It shall be unlawful for any person or entity in the business of operating a massage business or any manager or employee thereof: (a) To operate a massage business without a valid massage business license or with a license that has been suspended, revoked, or expired. (b) To employ any person to act as a manager at a massage business who is not licensed as a manager or a licensed owner. (c) To be open for business for the practice of massage therapy without a massage therapist on the premises that has been licensed in accordance with section 12-235-101, et seq., C.R.S.. (d) To operate or maintain a table shower or Vichy shower on the premises unless permission to operate a table shower was approved as part of its massage business license. (e) To permit a licensed massage business to be used for housing, sheltering, or harboring any person(s), or as living or sleeping quarters for any person(s). The owner and family members of a massage business operated as a home occupation, as defined by this Code, are exempt from this prohibition. (f) To massage any other person, or give or administer any bath or baths, including table showers or Vichy showers, in a manner intended to arouse, appeal to, or gratify the lust or passions, or sexual desires of such other person. In no case shall the employee intentionally touch either the male or female genitalia of the client. -10- (g) To allow any employee to provide massage therapy or other massage services without being fully clothed. For purposes of this subsection, employee clothing shall be of a fully opaque, nontransparent material that shall not expose the employee's genitals, pubic region, buttocks, or breasts below a point one inch above the top of the areola, or substantially expose the employee's undergarments. (h) To require client nudity as part of any massage service without the client's prior consent. (i) To use or possess adult-oriented merchandise, including sex toys, sexual aids, vaginal or anal lubricant, or any contraceptive item, in any part of a massage business. (j) To permit any individual, including a client, student, contractor, or employee, to engage in any sexual act in the massage business. (k) To fail to immediately report to the Wheat Ridge Police Department any disorderly conduct, sexual acts, or other criminal activity occurring on or within the licensed premises. (l) To make an agreement, or to permit any individual to make an agreement with an employee, to engage in sexual activity in any other location, in violation of Section 16-201 or 16-202. (m) To conceal persons in the business or to elude city inspectors, by exiting side or back doors or remaining behind locked doors during an inspection. (n) To refuse to provide identification to city inspectors or law enforcement, (o) To perform or permit anyone to perform massage without a valid massage therapists license issued under section 12-235-101, et seq., C.R.S.. (p) To perform or permit anyone to perform massage on a patron under the age of eighteen (18) years, unless such patron is accompanied by his or her parent or legal guardian, has a physician's prescription for such massage services, or has a letter from his or her parent or legal guardian authorizing such services. (q) To operate the business between the hours of 9:00 p.m. and 6:00 a.m.. Section 11-240. Required Acts. (a) Every licensed massage business is required to: (1) Maintain a current and up-to-date list of employees and contractors on site including start dates of employment or contracted service, full legal name, date of birth, home address and telephone number, employment position, date first began -11- employment or service, and the date when services were terminated if applicable. (2) Maintain a copy of each massage therapist's Colorado license for each employee and contractor performing massages. (3) Maintain a complete set of records to include a log of all massage or massage therapy administered at the business. The log shall contain the following information: date, time and type of each massage therapy administered, and name of the employee administering the massage therapy. The log shall be retained for a minimum of one year following any massage therapy. The massage therapy log shall be subject to inspection upon request by the inspector, during normal business hours in compliance with applicable law. (4) Operate under or conduct business under only the designation specified in the license. (5) List the address of the business in any advertisement. (6) Ensure that massage facilities interior and exterior doors remain unlocked while the massage business is open. The exception to this requirement is as follows: The exterior doors may remain locked if (i) the massage business is operated as a home occupation or (ii) during the time period when only one employee is present in the business. (7) Display at all times in a prominent place on the licensed premises a printed card with a minimum height of fourteen (14) inches and a width of eleven (11) inches with each letter a minimum of one-half (½) inch in height, which shall read as follows: WARNING IT IS ILLEGAL FOR ANY PERSON TO ALLOW A PERSON UNDER EIGHTEEN YEARS OF AGE TO BE IN OR UPON THESE PREMISES AT ANY TIME, UNLESS THE MINOR IS AUTHORIZED OR ACCOMPANIED BY A PARENT OR LEGAL GUARDIAN, OR HAS A PHYSICIAN'S PRESCRIPTION FOR SUCH MASSAGE SERVICES. FINES OR IMPRISONMENT MAY BE IMPOSED BY THE COURTS FOR VIOLATION OF THESE PROVISIONS UNDER THE WHEAT RIDGE CODE OF LAWS. (b) All employees, contractors, and other individuals, excluding clients, present in the massage business must have valid government identification in one of the following forms and must immediately present such identification upon request of an inspector or law enforcement personnel: -12- (1) An operator's, chauffeur's or similar type of driver's license issued by any state, any U.S. Territory, or any foreign country including Canada and Mexico; or (2) An identification card issued by any state for the purpose of proof of age as in accordance with section 42-2-302 and 42-2-303 C.R.S.; or (3) A military identification card; or (4) A passport; or (5) An alien registration card; or (6) A valid employment authorization document issued by the U.S. Department of Homeland Security; or (7) A valid consular identification card from any foreign country. (c) Massage therapists shall remain fully clothed, as described in section 11-239(g), while administering massage or otherwise visible to clients on business premises, including premises designated by the client through an outcall massage service. Section 11-241. Inspections. (a) No owner, manager, massage therapist, or employee shall fail to immediately grant full massage business access any time such establishment is occupied or open or business, to a licensing administrator, authorized inspector, law enforcement officer, or any other person authorized or required by law to inspect the massage business. (b) All rooms, cabinets, storage areas shall be subject to inspection and any locked rooms, cabinets or storage areas shall be promptly opened for inspection. (c) No owner, manager, massage therapist, or employee shall fail to immediately grant access to the log of all massage therapy administered at the business, as required in Section 11-240(a)(3), to a licensing administrator, authorized inspector, law enforcement officer, or any other person authorized or required by law to inspect the massage business, without unreasonable delay. (d) Inspectors may request to review the massage therapist license issued by the State at any time during an inspection for the massage therapists, managers, or massage therapist employed as contractors. (e) All owners, managers, massage therapists, employees, contractors or persons occupying the business, other than clients, shall present identification and shall not elude identification. -13- Section 11-242. Table or Vichy showers. (a) In order to operate or maintain a table or Vichy shower on or about the licensed premises, such device must be specifically allowed as a permitted device on the massage business license. (b) The treasurer may approve the use of a table or Vichy shower in the license if the following conditions are met: (1) The shower is commercial and professional in nature, manufactured with industrial grade materials, and is designed solely for the purpose of massage utilizing multiple overhead spray nozzles. Massage bathtubs and tables with accessory sprayers shall not qualify; and (2) The business practices appropriate draping of a shower client, to include draping of the buttocks and genitalia of all clients, unless the client gives specific written consent to be undraped. (c) If the treasurer has reason to believe that there is a failure to comply with the conditions in subsection (b) of this section, the treasurer shall provide licensee with written notice that permission to operate a table or Vichy shower as part of its license is terminated and the business shall not be allowed to operate such shower. (d) The licensee may appeal the termination or denial of shower use in accordance with section 11-32. Section 11-243. Enforcement processes for revocation or suspension of licenses. (a) Administrative suspension or revocation. In addition to any reason set forth in sections 11-30 and 11-31, and notwithstanding any provision of this Chapter to the contrary, the city treasurer or the treasurer’s designee may suspend or revoke a massage business license or a massage business manager’s license, under the provisions of Article V of Chapter 2, if he or she finds that: (1) The licensee has committed a violation of any section of this Article X; or (2) Any employee or contractor required by this Article to possess a valid massage therapist license obtained their license through fraud, deceit or misrepresentation, or the state has revoked said massage therapy license. (b) Summary suspension or revocation. (1) Grounds. Notwithstanding any provision of Article II. of this Chapter or the notice provisions of Chapter 2, Article V. to the contrary, the city treasurer or the treasurer’s designee may summarily suspend a massage business license or a massage business manager’s license, upon a finding that: -14- A. The licensee willfully failed to disclose any information as required in section 11-235; or B. The licensee knowingly permitting a person to perform massage therapy when licensee should have reasonably known that such person was not licensed in accordance with section 12-235-101, et seq., C.R.S.; or C. A pattern of credible facts emerges that the business is attempting to operate a prostitution enterprise whether or not there is a violation of any other specific law, rule, or code; or D. A pattern of credible facts emerges that the licensee knowingly concealed persons within the business premises or permitted employees or contractors to elude inspection; or E. A pattern of credible facts emerges that a person who was not licensed in accordance with section 12-235-101, et seq., C.R.S., and did not possess a valid massage therapist license performed massage at the licensed premises; or F. The licensee failed to permit an inspection any time the business is occupied or open for business; or G. For a business not possessing a valid massage business license, the licensee has had a license revoked for cause anytime within the prior twenty-four (24) months for the same or a substantially similar business either in the city or in another jurisdiction. (2) Process. Upon a finding that one or more grounds exist for the summary suspension of a massage business license or a massage business manager’s license, the city treasurer shall: A. Cause a notice of summary suspension of license to be served upon the licensee. The notice shall provide for a hearing to be held within fifteen (15) business days to determine whether the suspension should be terminated or continued or whether the license should be revoked; and B. Post a sign upon the licensed premises that the massage business is closed to the public until further notice. (3) Hearing. The hearing on the summary suspension of a license shall be held pursuant to section 2-88 of this Code. Notwithstanding the provision of Sec. 2-88(e), the administrative hearing officer is authorized to decide if the license under summary suspension should be revoked. (4) Appeal. Final decisions of the administration hearing officer may be appealed to the district court of Jefferson County. (5) Additional enforcement remedy. Any massage business found to be operating without the licenses required by Section 11-234 or -15- that continues operating after receiving a notice of summary suspension under subsection 11-243(b), above, is hereby declared to be a nuisance and may be abated pursuant to the provisions of Chapter 15 of this Code. Section 11-244. Supplemental provisions. The city treasurer or the treasurer’s designee, at his or her discretion, may: (a) Promulgate rules for approving professional organizations or credentialing agencies; and (b) Verify exempt status of individuals, in keeping with the intent of this Article; and (c) Exempt additional practices from the requirements of this ordinance; and (d) Determine that a practice defined as excluded under the Definition of Massage Business, herein, is no longer exempt, if there is a continued pattern of criminal behavior regarding sexual misconduct or criminal intent that is related to human trafficking disguised as a legitimate exemption. Section 11-245. Fees. The application and annual license fees for a massage business license and a massage business manager’s license shall be established by the city manager or the manager’s designee as part of the annual budget process. Section 3. Section 2-80 of the Wheat Ridge Code of Laws is hereby amended, as follows: Sec. 2-80. - Purpose; scope. The purpose of this article is to encourage prompt compliance with this Code and prompt payment of penalties for violations thereof. This article provides for administrative penalties that may be imposed for violation of the following portions of this Code: Chapter 5, Buildings and Building Regulations; Chapter 9, Health; Chapter 13, Motor Vehicles and Traffic; Chapter 15, Nuisances; Article X of Chapter 11 concerning Massage BUSINESSES Chapter 16, Concerning Massage Parlors, but not to include the balance of Chapter 16, Miscellaneous Offenses; Chapter 21, Streets and Sidewalks; Chapter 22, Taxation; Chapter 24, Vegetation; Chapter 26, Zoning. Section 4. Subsection 11-32(f) of the Wheat Ridge Code of Laws is hereby repealed. Section 5. Section 15-16 of the Wheat Ridge Code of Laws is hereby amended, by the addition of the following subsection: Sec. 15-16. - Offensive trade or business. . . . -16- (7) Certain Massage Businesses. A massage business that is operating without possessing the licenses required by Section 11-234 of this Code, or that continues to operate after receiving a notice of summary suspension under Section 11-243(b) of this Code. Section 6. Section 26-123 of the Wheat Ridge Code of Laws is hereby amended, as follows: Section 26-123. - Definitions. For the purpose of this zoning code, and as used or referred to in other sections, chapters or articles of the Wheat Ridge Code of Laws, unless specifically defined otherwise, the following words and terms are defined as follows. Words used in the present tense include the future; words in the singular number include the plural, and words in the plural number include the singular; the word "building" includes the word "structure" and the word "shall" is mandatory and not directory. Any word or term used in this chapter not specifically defined BELOWabove shall be interpreted as that word is defined elsewhere in the Wheat Ridge Code of Laws, or if not defined elsewhere in the Code of Laws, as defined in Colorado Revised Statutes, or if not defined in the statutes, as defined in Webster's Dictionary. Section 7. The Table of Uses – Commercial and Industrial Districts contained in Section 26-204 is hereby amended, as follows: Uses Notes NC RC C-1 C-2 I-E Massage parlor P Massage therapist See Chapter 11, Article 10 Code of Laws for additional restrictions P P P P P Massage therapy center See Chapter 11, Article 10 Code of Laws for additional restriction P P P P P MASSAGE BUSINESS See Chapter 11, Article X, Code of Laws for additional restrictions P P P P P Section 8. Subparagraph A.11.l. of Section 26-613 is hereby amended, as follows: Sec. 26-613. Home occupations. . . . 11. Home occupations are limited to the following business or commercial activities: -17- . . . l. Massage therapist, restricted to one (1) practitioner, POSSESSING A CURRENTLY VALID MASSAGE THERAPIST LICENSE ISSUED BY THE STATE OF COLORADO PURSUANT TO SECTION 12-235-101. ET. SEQ., C.R.S. AND subject to the restrictions of Chapter 11, Article X of the Code of Laws. m. Other similar uses as approved by the director of community development or board of adjustment and when in conformance with the standards and requirements set forth herein. Section 9. Severability, Conflicting Ordinances Repealed. If any section, subsection or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. Section 10. Compliance Required – Schedule. Massage businesses, holding valid business licenses issued under Article II. of Chapter 11 of the Wheat Ridge Municipal Code on the date of final passage of this Ordinance, shall come into full compliance with the requirements of this ordinance within ninety (90) days after the effective date of this ordinance. Such businesses will be exempt from the payment of fees for their massage business license if they apply within thirty (30) days after the effective date of this ordinance. Except as specifically described in this Section 10, the requirements of this Ordinance shall apply to all new or currently unlicensed massage businesses upon the effective date of this Ordinance. Section 11. Effective Date. This Ordinance shall take effect fifteen (15) days after final publication, as provided by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of 7 to 0 on this 27th day of July, 2020, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge, and Public Hearing and consideration on final passage set for August 10, 2020 at 7:00 p.m., as a virtual meeting. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of ___ to ___, this 10th day of August, 2020. SIGNED by the Mayor on this 10th day of August, 2020. Bud Starker, Mayor ATTEST: Steve Kirkpatrick, City Clerk -18- Approved as to Form Gerald E. Dahl, City Attorney 1st publication: July 30, 2020 2nd publication: August 13, 2020 Jeffco Transcript: Effective Date: August 28, 2020 City of Wheat Ridge Municipal Building 7500 W. 29th Ave. Wheat Ridge, CO 80033-8001 P: 303.235.2819 F: 303.234.5924 New Regulations Pertaining to Massage Businesses in Wheat Ridge Purpose At City Council’s direction, City of Wheat Ridge staff has been working to draft updated regulations to ensure massage therapy services are provided to the public safely and consistently by statewide certified professionals. City Council and staff recognize that massage is a legitimate health care professional activity that provides benefits to the residents and visitors of the City. Unfortunately, it is known regionally that some businesses posing as legitimate massage facilities conduct illicit activities such as prostitution and human trafficking, and that some employees conducting massage therapy are not properly licensed professionals. The purpose of these proposed regulations is to encourage legitimate massage businesses to thrive while protecting the health and safety of Wheat Ridge residents and visitors, and promote Wheat Ridge as a place for exceptional businesses. Changes to Licensing Under the new ordinance, Massage Businesses will be required to obtain the following two licenses: 1.Massage Business License (Proposed fee $25) 2.Massage Business Manager’s License (Proposed fee $0) These licenses are in addition to a City of Wheat Ridge Business License (currently $20). Massage businesses will have ninety (90) days after the effective date of the regulations’ adoption by ordinance in which to obtain their massage business and massage business manager(s) license. All three license renewal applications will be due annually by January 31st. What is a Massage Business License? The purpose of the Massage Business License is to ensure that the unique requirements to operate this type of personal services business are met. The application information required for this license will include confirmation of ownership [owners with more than a 10% interest] eligibility and will check for possession of, or permission for use of, the premises as a massage business (title documents, lease, etc.) A completed application will also include the names and state massage therapy license numbers of all therapists practicing at the business location. Finally, the license will ask about any criminal or disciplinary history related to a massage business. What is a Massage Business Manager’s License? The Massage Business Manager’s License is required for each on-site manager. The application will collect information about the applicant so that a background check can be conducted. Each business subject to the code will be required to have an on-site manager during hours of operation. There is no limit to the number of manager's licenses a business can have, and the city does not charge a fee for a manager's license. An individual massage therapist operating a massage business as a solo practitioner is not required to obtain a massage business manager’s license. www.ci.wheatridge.co.us ATTACHMENT 2 06/24/2020 Page 2 of 3 Are any businesses where massage is performed exempt from these licensing regulations? Yes. Some businesses are exempt including: •State-regulated businesses including training rooms, medical offices and chiropractors facilities •Solo practitioners who do not use an assumed name, or use a DBA name but provide the massage therapist’s full legal name and license number in each advertisement or when the name appears in writing What are the reasons my application could be denied? A massage business application can be denied for the following reasons: •Previous or pending criminal investigations which led to the suspension, revocation or voluntary surrendering of the state issued Massage Therapist License. •If the criminal investigation on any owner or manager reveals certain crimes, such as: o Sexual misconduct with a child o Prostitution o Embezzlement o Money laundering o Other crimes that would raise a question about the character of the individual •Insufficient proof of state massage therapist license •If the physical location of the business has had a massage business license revoked or surrendered for cause within the last 24 months. What requirements are included in the new regulations? •All therapists must have a valid Colorado massage therapist license, a copy of which must be available for inspection on-site •The business must operate with a licensed manager on site •The business may not operate between the hours of 9:00 p.m. and 6:00 a.m. •All interior and exterior doors must remain unlocked unless the business is operated as a home occupation or there is only one employee on premise •The business cannot be used for housing, sheltering or harboring any person, unless the business is operated as a home occupation •Employees must be fully clothed •A table shower is prohibited unless it is approved as part of the massage business license issuance •No sexual acts can take place in the course of business. Any such acts must be reported to the Wheat Ridge Police Department •The business must comply with City inspection requests and may not attempt to elude city inspection by exiting out back doors or remaining behind locked doors •Employees of the business must provide identification to the city inspector upon request •The business must maintain a list of all employees and contractors on site including name, position, address, and start date available for inspection •A log of each massage given including, date, time, type of massage and therapist must be maintained and available for inspection onsite 06/24/2020 Page 3 of 3 What are the next steps in the process? •The draft ordinance containing the revised and additional regulations will be submitted to City Council for consideration and vote. If the ordinance passes, Council will set an enactment date •The City will reach out to each business currently classified as a massage business to inform business owners of the enactment date, pertinent details of the final ordinance and to supply business owners with all applicable forms •Full compliance is expected within 90 days of the enactment date. To help facilitate easy application and as a thank you for cooperation and input, the City will waive all Massage Business License fees for any application which is received within 30 days of the effective date. Who do I contact with questions or feedback? Please reach out to Travis Anderson, Revenue Auditor, at 303-235-2825 or TAnderson@ci.wheatridge.co.us with any questions or to provide feedback on these proposed changes. ITEM NO: DATE: August 10, 2020 REQUEST FOR CITY COUNCIL ACTION TITLE: COUNCIL BILL NO. 17-2020 – AN ORDINANCE AMENDING SECTION 16-103 OF THE WHEAT RIDGE CODE OF LAWS, CONCERNING REGULATION OF NOISE PUBLIC HEARING ORDINANCES FOR 1ST READING (08/10/2020) BIDS/MOTIONS ORDINANCES FOR 2ND READING (08/24/2020) RESOLUTIONS QUASI-JUDICIAL: YES NO ____________________________ ____________________________ City Attorney City Manager ISSUE: The current Wheat Ridge Code of Laws concerning unreasonable noise is qualitative in nature and is limited in scope and difficult to prove in court because it does not set an objective level by which to measure noise. This Ordinance will amend Section 16-103 of the Wheat Ridge Code of Laws to apply a numeric decibel standard to enforce noise complaints emanating from industrial zoned districts within the City, maintain a reasonableness standard for noise complaints in all other zone districts within the City at a distance of 50 feet or more, create a special permit program for amplified sound at events on private property, set date and time limits and to provide a limited number of exemptions. PRIOR ACTION: In 2005, City Council repealed the Disturbing the Peace Ordinance which was difficult to enforce as the only standard for noise enforcement was “sound at such a level, or at such an hour, as to disturb the peace of any other person.” Council replaced it with the current Unnecessary Noise and Disturbing the Peace Ordinance which subjects any noise/sound to a more objective standard, specifically that it will be deemed unreasonable any sound is audible twenty-five (25) or more feet from the noise or sound source. The ordinance also deals specifically with noise created in multi-unit dwellings and with trash truck pick-ups after 11:00 p.m. and before 7:00 a.m. Finally, the ordinance 4 Council Action Form – Noise Ordinance August 10, 2020 Page 2 allows any member of the police department, who personally observes a violation, to serve as the complaining party in the prosecution of such a violation In 2012, City Council again took up this topic after complaints of unreasonable noise emanating from a restaurant/bar along 44th Avenue. An ordinance was drafted to amend the City’s existing ordinance to create a special permit program for amplified sound at outdoor events on private property, set date and time limits and to provide a limited number of exemptions. There was some interest from Council at the time in applying a numeric decibel standard to enforce noise complaints. However, the final draft ordinance as presented to Council relied on a “reasonableness” standard. The ordinance was postponed indefinitely at the public hearing on August 27, 2012. At the September 23, 2019 special study session, a discussion on noise was added to the agenda at the request of Councilmember Dozeman and former Councilmember Mathews. Resident complaints concerning unreasonable noise emanating from a manufacturing business in northwest Wheat Ridge prompted this request. After a brief discussion by City Council, consensus was reached to direct Staff to draft an ordinance with a “hybrid” approach to enforce noise complaints using both qualitative and quantitative measures, depending on zoning district. This issue was again addressed with City Council at the December 16, 2019 study session due to the fact that there was limited discussion at the September 23rd special study session and the Council now had four new councilmembers. The following consensus was received: 1. Create a hybrid approach for a noise ordinance (i.e. set decibel level limits for industrial zoned districts and use a reasonableness standard for all other zone districts) 2. Unreasonable noise is prohibited especially between the hours of 10 p.m. and 7 a.m. 3. Create a permit process for public events (live outside amplified music on patios, etc.) and special events (Carnation Festival, etc.) outside of the hours 10 p.m. to 7 a.m. 4. Any unreasonable noise 50' or more from noise source is prohibited 5. Provide exemptions for construction, fireworks, loading operations, homeowner activities, road improvements and fire and police Finally, City Council reviewed a draft ordinance at the July 20, 2020 study session and consensus was received to add the ordinance to a future agenda for first reading. FINANCIAL IMPACT: The overall financial impact of this ordinance is negligible. Decibel readers that include a certificate of traceability are estimated to cost approximately $500/each. The Police Department has identified the need for at least four units for a total cost of $2,000. BACKGROUND: The Acoustical Society of America has noted that “Cities try different tactics to regulate noise: Survey of noise ordinances in nearly 500 of the largest communities in the U.S. shows there’s no set standard to preserving peace and quiet.” This database of noise ordinances includes decibel-based Council Action Form – Noise Ordinance August 10, 2020 Page 3 standards, plainly audible standards, nuisance standards, quite zones and restrictions based on zoning, setbacks, time-of-day regulations, and outright bans on some noise sources. Many communities rely on a combination of these regulatory approaches (see Attachments 2-6) as local examples). However, noise ordinances across the country are typically characterized as “qualitative” or “quantitative”. Qualitative noise ordinances are based upon vague standards that proscribe noise characterized by one or more adjectives, such as “unusual”, “unnecessary”, or “unreasonable”. This type of ordinance may also define certain sound related activities or specific noise sources to be annoying or disturbing and thus a violation of the ordinance. The qualitative ordinance is generally subjective in nature, and is more likely to pose constitutional issues such as vagueness and is also more likely to be subject to enforcement at the discretion of local police and to non-uniform application. Quantitative ordinances, on the other hand, proscribe noise-producing conduct by decibel levels, applying scientific standards of sound intensity and frequency. The quantitative ordinance is capable of providing non-discretionary, objective and predictable standards. Quantitative standards are more amendable to tailoring in order to meet the specific, unique needs of a local community. Following is an illustration of common noise sources: The current Wheat Ridge Code of Laws concerning unreasonable noise is qualitative in nature and is limited in scope and difficult to prove in court because it does not set an objective level by which to measure noise. However, while decibel levels may be a more scientific measure of noise, they’re also difficult to enforce. Police Officers must be trained in the use of noise meters and they have to have their calibrated equipment with them to measure sound levels. RECOMMENDATIONS: Staff recommends approval of the ordinance. RECOMMENDED MOTION: “I move to approve Council Bill No. 17-2020, an ordinance Amending Section 16-103 of the Wheat Ridge code of laws, concerning regulation of noise.” Council Action Form – Noise Ordinance August 10, 2020 Page 4 Or “I move to postpone indefinitely Council Bill No. 17-2020, an ordinance Amending Section 16-103 of the Wheat Ridge code of laws, concerning regulation of noise for the following reason(s)_______________.” REPORT PREPARED/REVIEWED BY: Patrick Goff, City Manager Jerry Dahl, City Attorney ATTACHMENTS: 1. Council Bill No. 17-2020 CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER ___________ COUNCIL BILL NO. 17 ORDINANCE NO. _________ Series 2020 TITLE: AN ORDINANCE AMENDING SECTION 16-103 OF THE WHEAT RIDGE CODE OF LAWS, CONCERNING REGULATION OF NOISE WHEREAS, the City of Wheat Ridge is a home rule municipality having all powers conferred by Article XX of the Colorado Constitution; and WHEREAS, pursuant to its home rule authority and C.R.S. § 31-23-101, the City, acting through its City Council (the “Council”), is authorized to adopt ordinances for the protection of the public health, safety or welfare; and WHEREAS, in the exercise of this authority the Council has previously enacted Section 16-103 of the Code of Laws, concerning regulation of noise; and WHEREAS, following public outreach and after hearing the concerns of residents and the business community, the Council wishes to amend Section 16-103 to better address the manner in which noise is measured and unreasonable noise is prohibited and enforced. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Section 16-103 is amended to read as follows: Sec. 16-103. - Unreasonable noise; disturbing the peace: (A) DEFINITIONS. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE MEANINGS INDICATED: AMPLIFIED SOUND SHALL MEAN THE USE OR OPERATION ON PRIVATE PROPERTY OF ANY LOUDSPEAKER, PUBLIC ADDRESS SYSTEM, OR OTHER SOUND AMPLIFYING EQUIPMENT FOR THE PURPOSE OF GIVING INSTRUCTIONS, DIRECTIONS, TALKS, ADDRESSES OR LECTURES, OR FOR TRANSMITTING MUSIC OR SOUND TO ANY PERSONS OR ASSEMBLAGES OF PERSONS. AMPLIFIED SOUND SHALL NOT INCLUDE SOUND WHICH IS NOT AUDIBLE FIFTY (50) OR MORE FEET FROM THE PROPERTY LINE OF THE PROPERTY UPON WHICH THE SOUND SOURCE IS LOCATED. SOUND-AMPLIFYING EQUIPMENT SHALL MEAN ANY MACHINE OR DEVICE FOR THE AMPLIFICATION OF A HUMAN VOICE, MUSIC OR ANY OTHER SOUND, OR BY WHICH THE HUMAN VOICE, MUSIC OR ANY OTHER SOUND IS AMPLIFIED. ATTACHMENT 1 UNREASONABLE NOISE SHALL MEAN ANY EXCESSIVE OR UNUSUALLY LOUD SOUND, OR ANY SOUND WHICH DISTURBS THE PEACE AND QUIET OF ANY NEIGHBORHOOD OR CAUSES DAMAGE TO ANY PROPERTY OR BUSINESS. AMPLIFIED SOUND EVENT SHALL MEAN AN OUTDOOR EVENT ON PRIVATE PROPERTY AT WHICH AMPLIFIED SOUND IS PERMITTED PURSUANT TO THIS SECTION. EVENT LOCATION SHALL MEAN THE REAL PROPERTY AT WHICH AN AMPLIFIED SOUND EVENT IS HELD, EXTENDING TO THE EXTERIOR PROPERTY LINES THEREOF. IN THE CASE OF A RESIDENTIAL NEIGHBORHOOD “BLOCK PARTY” OR SIMILAR FUNCTION, THE EVENT LOCATION SHALL BE THE PUBLIC STREET USED FOR THE EVENT. (B) UNLAWFUL NOISE: RESIDENTIAL AND COMMERCIAL PROPERTIES: It is unlawful for any person to make, continue or cause to be made or to permit or assist another to make, continue or cause to be made, any unreasonable noise which, under all of the circumstances presented, would annoy, injure or endanger the comfort, repose or peace of a person of ordinary sensitivities INCLUDING BUT NOT LIMITED TO THE FOLLOWING: THE SOUNDING OF ANY HORN, SIGNALING DEVICE, OR SIMILAR DEVICE ON ANY AUTOMOBILE , MOTORCYCLE OR OTHER VEHICLE; ANY AMPLIFIED SIGNAL FROM ANY BELL, CHIME, SIREN, WHISTLE OR SIMILAR DEVICE INTENDEND FOR NONEMERGENCY PURPOSES; ANY SIGNALING DEVICE INCLUDING FIRE, BURGLAR, SIREN, WHISTLE UNLESS IN AN EMERGENCY; RADIOS, TELEVISIONS, BOOM BOXES, PHONOGRAPHS, STEREOS, MUSICAL INSTRUMENTS AND SIMILAR DEVICES. The following FOREGOING noises and circumstances shall be deemed as prima facie unreasonable IF: (1) Any noise or sound which is audible twenty-five (25) FIFTY (50) or more feet from a mobile noise or sound source. (2) Any noise or sound which is audible within a private residence that the person responsible for the sound has no right to occupy, specifically including but not limited to apartments, common interest communities and other multiunit dwelling structures. (3) Any noise, sound source or any person or group of persons engaged in loud and continuing activities which are audible twenty-five (25) FIFTY (50) or more feet from the noise source or at the property line of the property upon which the noise source is located or upon which such activities are taking place, continuing for a minimum of fifteen (15) minutes IN A TWO (2) HOUR PERIOD. (4) Any person performing or permitting the performance of trash pickup with a truck which has a compactor or the capacity to raise and dump dumpsters in any area zoned for residential uses between the hours of 11:00 p.m. 10:00 p.m. and 7:00 a.m. For purposes of this paragraph, testimony that the name of a business which holds itself out as being in the business of trash hauling was written on the trash truck shall be prima facie evidence that the trash truck was owned by and under the control of the employer so identified. (C) UNLAWFUL NOISE: INDUSTRIAL PROPERTIES. IT SHALL BE UNLAWFUL FOR ANY PERSON TO EMIT OR CAUSE TO BE EMITTED ANY NOISE WHICH LEAVES THE PREMISES ON WHICH IT ORIGINATES, CROSSES A PROPERTY LINE, AND ENTERS ONTO ANY OTHER PREMISES IN EXCESS OF THE SOUND PRESSURE LEVELS DURING THE TIME PERIODS AS SPECIFIED IN TABLE A. (1) THE NOISE SOURCE SHALL BE MEASURED AT ANY POINT ALONG THE PROPERTY LINE OR WITHIN THE PROPERTY LINE OF THE RECEIVING PREMISES TO DETERMINE COMPLIANCE WITH THIS SECTION. (2) THE DECIBEL LEVEL OF ANY NOISE REGULATED ON A DECIBEL BASIS BY THIS ARTICLE SHALL BE MEASURED BY A SOUND LEVEL METER. THE TEST RESULTS SHALL BE PRIMA FACIE EVIDENCE IF ADMINISTERED IN CONFORMANCE WITH THE AMERICAN NATIONAL STANDARDS INSTITUTE. IN ORDER TO IMPLEMENT AND ENFORCE THIS ARTICLE EFFECTIVELY, THE CHIEF OF POLICE SHALL PROMULGATE STANDARDS AND PROCEDURES FOR USING AND TESTING SOUND LEVEL METERS USED IN THE ENFORCEMENT OF THIS ARTICLE. TABLE A: ALLOWABLE NOISE LEVELS (IN DBA) WITH TIME OF DAY ALLOWANCE RECEPTOR PREMISES 7AM-10PM/10PM-7AM SOURCE PREMISES RESIDENTIAL COMMERCIAL INDUSTRIAL INDUSTRIAL 55/50 65/60 80/75 (D) PERMIT FOR AMPLIFIED SOUND EVENT NO PERSON SHALL USE OR CAUSE TO BE USED ANY LOUDSPEAKER, LOUDSPEAKER SYSTEM, SOUND AMPLIFIER OR ANY OTHER MACHINE OR DEVICE WHICH PRODUCES, REPRODUCES, OR AMPLIFIES SOUND OUTSIDE OF BUILDINGS OR OTHER ENCLOSED STRUCTURES IN A MANNER WHICH EXCEEDS THE LEVELS SPECIFIED IN SECTION 16-103(B), WITHOUT FIRST OBTAINING A PERMIT TO DO SO. AN OUTDOOR AMPLIFIED SOUND EVENT ON PRIVATE PROPERTY IS PERMITTED UNDER THIS SECTION UNDER THE FOLLOWING CONDITIONS: (1) THE EVENT SPONSOR MUST APPLY FOR AND RECEIVE AN ADMINISTRATIVE PERMIT FOR THE EVENT, ON FORMS PROVIDED BY THE CITY CLERK. (2) THE APPLICATION SHALL BE APPROVED, APPROVED WITH CONDITIONS, OR DENIED BY THE CITY MANAGER, AFTER REVIEW BY THE POLICE DEPARTMENT AND ANY OTHER CITY DEPARTMENT AS APPROPRIATE. (3) NO AMPLIFIED SOUND EVENT PERMIT MAY BE ISSUED FOR AN EVENT OUTSIDE OF THE HOURS OF 9:00 AM AND 9:00 PM SUNDAY THROUGH THURSDAY AND 9:00 AM AND 10:00 PM FRIDAY AND SATURDAY. WITHIN THIS TIME RANGE, AMPLIFIED SOUND EVENTS MAY BE LIMITED IN DURATION AS DETERMINED BY THE CITY MANAGER. (4) A PERMIT SHALL NOT BE ISSUED FOR THE SAME LOCATION MORE THAN SIX TIMES DURING ANY ONE-YEAR PERIOD. (5) THE PERMIT SHALL NOT AUTHORIZE, ALLOW, OR OTHERWISE PERMIT THE PRODUCTION, REPRODUCTION, OR AMPLIFICATION OF SOUND WHICH EXCEEDS SEVENTY-FIVE (75) DB(A) WHEN MEASURED FROM THE NEAREST RECEIVING PROPERTY. (6) CONDITIONS MAY BE IMPOSED ON THE PERMIT TO ADDRESS THE NATURE AND LOCATION OF THE SPECIFIC EVENT. FAILURE OF THE PERMITTEE TO COMPLY WITH THE CONDITIONS MAY RESULT IN THE PERMIT BEING REVOKED. (7) THE EVENT SPONSOR SHALL POST, AT THE EVENT LOCATION, AND DELIVER FLYERS TO ALL RESIDENCES AND BUSINESSES WITHIN A 300 FOOT RADIUS OF THE EXTERIOR PROPERTY LINE OF THE EVENT LOCATION, ADVISING THE SURROUNDING NEIGHBORHOOD OF THE DATE AND PERMITTED TIMES OF THE EVENT, NO LATER THAN SEVEN (7) DAYS BEFORE THE EVENT. (8) THE POLICE DEPARTMENT SHALL HAVE AUTHORITY TO REQUIRE THE PERMITTEE TO REDUCE THE SOUND VOLUME, CURTAIL THE HOURS OF THE EVENT, OR CLOSE THE EVENT ENTIRELY, IF THE SOUND LEVEL AT THE EVENT, EVALUATED AT THE PROPERTY LINE OF THE COMPLAINING PARTY CONSTITUTES, IN THE POLICE DEPARTMENT’S SOUND JUDGMENT, UNREASONABLE NOISE. (9) AN AMPLIFIED SOUND EVENT FOR WHICH A PERMIT HAS BEEN ISSUED SHALL BE EXEMPT FROM THE PROVISIONS OF (B)(1), (B)(2) AND (B)(3) OF THIS SECTION. (E) NOISE CAUSED IN THE PERFORMANCE OF EMERGENCY WORK FOR THE IMMEDIATE SAFETY, HEALTH, OR WELFARE OF THE COMMUNITY OR INDIVIDUALS OF THE COMMUNITY, OR TO RESTORE PROPERTY TO A SAFE CONDITION FOLLOWING A PUBLIC CALAMITY SHALL NOT BE SUBJECT TO THE PROVISIONS OF THIS SECTION. (F) Any member of the police department who personally observes a violation of this section may serve as the complaining party in the prosecution of such violation, regardless of whether the officer's observation was initiated by the complaint of another party. (G) Any activity or noise source conducted or caused by an activity conducted OR sponsored or approved by the city shall be exempt from the requirements of this section. Section 2. Severability, Conflicting Ordinances Repealed. If any section, subsection or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. Section 3. Effective Date. This Ordinance shall take effect fifteen (15) days after final publication, as provided by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of ___ to ___ on this ____ day of ____________, 2020, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge, and Public Hearing and consideration on final passage set for ____________________, 2020 at 7:00 p.m., in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of ___ to ___, this _____ day of ______________, 2020. SIGNED by the Mayor on this _____ day of ____________, 2020. ________________________ Bud Starker, Mayor ATTEST: _________________________ Steve Kirkpatrick, City Clerk Approved as to Form _________________________ Gerald E. Dahl, City Attorney First Publication: August 13, 2020 Second Publication: August 27, 2020 Jeffco Transcript Effective Date: September 11, 2020 Published: Jeffco Transcript and www.ci.wheatridge.co.us ITEM NO: DATE: August 10, 2020 REQUEST FOR CITY COUNCIL ACTION TITLE: MOTION TO APPROVE APPOINTMENTS TO CITY COUNCIL DISTRICT IV VACANCIES ON THE CULTURAL COMMISSION PUBLIC HEARING ORDINANCES FOR 1ST READING BIDS/MOTIONS ORDINANCES FOR 2ND READING RESOLUTIONS QUASI-JUDICIAL: YES NO _______________________________ ______________________________ City Clerk City Manager ISSUE: Due to the recent resignations of V. Ruth Baranowski and Jan Southcott, the City Council District IV seats on the Cultural Commission are vacant. The terms of these positions end on March 2, 2021 and March 2, 2023 respectively. FINANCIAL IMPACT: None BACKGROUND: Following these resignations, the City Clerk’s office advertised the positions accordingly in the Wheat Ridge (now Jeffco) Transcript along with the City website, Channel 8 and various other media outlets. Applications for the positions have been received from Gail Rickman of 4090 Field Drive (District IV) and Kate Grigsby of 3601 Teller Street (District I). Section. 2-53 (c) of the City Code states in part: “………All appointments to all boards and commissions shall be made to achieve equal representation from each council district to each board or commission. If, after reasonable advertisement, no applications are received from residents within the relevant council district for a vacancy on any board or commission, the council may appoint any otherwise qualified resident……… “ 5 CAF – Cultural Commission Appointments August 10, 2020 Page 2 RECOMMENDATIONS: Staff recommends the appointment of Ms. Rickman and Ms. Grigsby to the Cultural Commission. RECOMMENDED MOTION: “I move to appoint _________________________________ to the Cultural Commission for District IV to fill a vacancy, term ending March 2, 2021.” or “I move to deny the appointment of __________________to the Cultural Commission for District IV for the following reason(s)_____________________.” And: “I move to appoint _________________________________ to the Cultural Commission for District IV to fill a vacancy, term ending March 2, 2023.” or “I move to deny the appointment of __________________to the Cultural Commission for District IV for the following reason(s)_____________________.” REPORT PREPARED BY: Robin Eaton, CMC, Deputy City Clerk Steve Kirkpatrick, City Clerk Danitza Sosa, Administrative Assistant to the Mayor and City Council Patrick Goff, City Manager ATTACHMENTS: 1. Gail Rickman application 2. Kate Grigsby application ATTACHMENT 1 From:no-reply@ci.wheatridge.co.us To:Robin Eaton Subject:Online Form Submittal: Board and Commission ApplicationDate:Friday, July 31, 2020 9:04:27 AM Board and Commission Application Application for the appointment to the (Board/Commission/Committee): Cultural arts Date: 7/31/2020 District: 1 How long have you been a resident of Wheat Ridge? 10+ years Are you a registered voter? Yes Why are you seeking this appointment? As a Musician and a music and theater teacher, I am passionate about the arts and would love to help cultivate and promote the arts in our lively city. Do you have experience in this area? I don’t, but I’m a fast learner, I’m great with people, and I am organized and efficient. I also have a passion for the arts and an eyefor detail. Have you ever served, or are you currently on a Board/Commission/Committee and if so, which one? How long? No. Are there any conflicts which would interfere with regular attendance or duties? No. First Name Kate Last Name GrigsbyAddress1 3601 Teller St Address2 Field not completed. City Wheat Ridge State CO Zip 80033 Home Phone 3035268499 Business Phone Field not completed. Email Address kategrigsby13@gmail.comYour application will be kept on file for one year.City Clerk's Office, 7500 W. 29th Ave., Wheat Ridge, CO 80033 Email not displaying correctly? View it in your browser. <http://www.ci.wheatridge.co.us/Admin/FormCenter/Submissions/Edit? id=48162&categoryID=0&formID=76&displayType= SubmissionsView&startDate= &endDate= &dateRange= Last30Days&searchKeyword= &currentPage=0&sortFieldID= 0&sortAscending= False&selectedFields= &parameters=CivicPlus.Entities.Core.ModuleParameter&submissionDataDisplayType=0&backURL=%2fAdmin%2fFormCenter%2fSubmissions%2fIndex%2f76%3fcategoryID%3d19> ATTACHMENT 2