The meeting was called to order by Mayor Jones at 7:05 p.m.

The Pledge of Allegiance was given. 

The Minutes of the August 23, 2004 Board of Aldermen meeting were submitted for approval.  Alderman Fleming amended the Minutes on Page 6, City Administrator’s Report, Seven Trails Wall, noting that he abstained from the vote.  Alderman Pogue amended the Minutes on Page 1, Bill # 3305, wherein he voted No on the vote to table the legislation until the September 13 Board meeting.  A motion was made by Alderman Buermann and seconded by Alderman Lembke to approve the Minutes as amended.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed. 

Mayor Jones said the Public Health & Safety Committee met at 6:00 p.m. on this date, and he moved the Aldermanic Comments section of this Board meeting to the beginning of this agenda for a report on the Public Health & Safety Committee meeting and to determine whether the Board will proceed with Bill # 3305. 

Public Health & Safety Committee report:  Alderman Robinson, Chairman of the Public Health & Safety Committee, said the Committee met today at 6:00 p.m. and on Monday, September 13.  Public comments were taken from business owners and residents who attended the meeting.  They expressed how a smoking ban would affect their business.  Chairman Robinson said it is the consensus that the Board is looking for a total ban on smoking; however, the committee has concern how this may affect businesses that have alcohol related sales.  It was agreed that the committee would not make a recommendation to the Board at this time.  A third Public Health & Safety Committee meeting will be held on September 27, at 6:00 p.m., prior to the Aldermanic meeting.  Chairman Robinson requested that the business owners who have alcohol related sales be notified of this meeting.  The proposed ordinance will be discussed and if a delayed date for the effective ban should be considered. 

City Attorney Lucchesi requested all updated changes to the bill be sent to him so that he can prepare a new ordinance for consideration. 

Alderman Gatton said that since Bill # 3305 has been presented to the Board, it is not appropriate to make changes to a bill that has not been voted on yet by the Board.  Mayor Jones agreed and said that a new bill with a different number can be prepared reflecting the changes. 

BILL # 3305 - AN ORDINANCE AMENDING CHAPTER 1, SECTION 1-2 ENTITLED “DEFINITIONS” BY THE ADDITION OF CERTAIN DEFINITIONS FOR REGULATION OF SMOKING IN PUBLIC AND WORK PLACES AND BY THE ADDITION IN CHAPTER 17, A NEW SECTION 17-65 ENTITLED “BALLWIN CLEAN INDOOR AIR ACT”. 

A motion was made by Alderman Robinson and seconded by Alderman Buermann to table Bill # 3305 until the September 27 Board meeting.  A voice vote was taken with 7 yes votes and Alderman McDowell voting no.  The motion was declared passed. 

Mayor Jones announced that the smoking ban legislation will not be voted upon at this meeting.  The Public Health & Safety Committee of the Board of Aldermen will meet on September 27, at 6:00 p.m. to further discuss the proposed legislation and to meet with business owners and citizens either by written communication or in person.  This will be an open meeting.  The smoking ban legislation will not be further considered in tonight’s meeting. 

None. 

CITIZEN COMMENTS 

Frank Nehmen, Co-owner of Frick’s Restaurant Bar & Grill:  Mr. Nehmen said that in the last few days, he contacted the Small Business Association regarding the effects of a smoking ban on businesses.  He said that his restaurant was appraised 6 months ago by one of the largest sellers and buyers of businesses in the St. Louis area.  He was told that because of the proposed smoking ban, he could not sell his business at this time as a restaurant.  His restaurant has no value.  Mr. Nehmen said that his business was worth $450,000 - $500,000, and now there is no value.  He said he is desperate at this time. 

City Administrator Kuntz said that he received a message from Wendal Bailey, from the Small Business Administration.  He said that some restaurant owners will have problems making their loan payments and asked if the legislation had been approved.  Mr. Bailey said the SBA will do everything they can do to assist the restaurant owners. 

Mike Reid, District Office Director for Senator John Loudon:  Mr. Reid said that Senator Loudon asked that he address the Board on the Senator’s behalf regarding the smoking ban legislation.  Senator Loudon knows that the Board tries to do what is best for the community.  He has been contacted by some of the business owners and he is concerned about the impact of passing this legislation in Ballwin only will have on the restaurants.  People may choose to go to other restaurants.  Senator Loudon thinks this is best addressed at a county or state wide level so that Ballwin businesses are not adversely affected.  He said that Senator Loudon expresses these concerns as a Ballwin resident and as a legislator who represents the people.  The legislation could have an adverse impact on revenues to Ballwin.  Mr. Reid said that Senator Loudon suggested that the proponents of this legislation should be required to demonstrate that businesses would not be adversely affected. 

Mayor Jones said that it’s good that Senator Loudon believes that this issue should be discussed on a regional basis.  He asked when is this going to happen.  Mr. Reid said that Senator Loudon has not committed to sponsoring or supporting this type of legislation, but he feels that this would best be done on a regional basis so that local businesses are not harmed. 

Alderman Gatton said that the existing State law gives municipalities the authority to make these decisions.  He said that if Senator Loudon would ask Ballwin to put this off because he is going to do something on this issue in the next legislative session, he would be willing to do this.  There has been no action at all at the State level.  Mr. Reid said he will relay this to Senator Loudon. 

Alderman Robinson asked how much money Senator Loudon gets from tobacco lobbyists?  Mr. Reid said he does not work on the campaign so he does not know.  Alderman Robinson asked that Mr. Reid provide this information.  He said that Senator Loudon does not have the courage to come to this meeting and address the business owners himself on how they can be protected.  He said that Senator Loudon expects the municipalities to address this one at a time.  The business owners have asked for protection by a state wide law and not do this piecemeal.  Alderman Robinson said that when Senator Loudon comes to the Ballwin meeting and faces the business owners, maybe he will have more respect for the Senator’s opinion.  Right now, until Mr. Loudon shows up in person, Alderman Robinson said, he will not consider his opinion. 

Mr. Reid said that this is the reason Senator Loudon hired him as his representative, because he can’t be everywhere at all times.  He has many commitments and another job in addition to being a legislator to support his family.  Mr. Reid said he will convey this to Senator Loudon. 

Charles Rieder, 548 St. Joseph Drive:  Mr. Rieder asked how much money does the City get from tobacco in taxes?  Mayor Jones said the budgeted amount for 2004 was $115,000.  This is not a point of sale tax.  This is a state wide collection and money is remitted to the municipalities based upon statewide cigarette sales and population.  He said that even if tobacco sales was completely eliminated in the City of Ballwin, it would not eliminate the tax or have any appreciable effect.  Mr. Rieder said that from a tax standpoint the City doesn’t get hurt.  Mayor Jones said that’s correct. 

Mr. Rieder asked that if the citizens of Ballwin do not want any smoking ban legislation, is there something in the laws that allows the citizens to override the Board decision.  Mayor Jones said that there is a state statute initiative and referendum, not in Ballwin’s ordinances but is applicable statewide.  He said there is an initiative process and a referendum process.  Mr. Rieder asked if this could be used to override a law in Ballwin?  Mayor Jones said that he will have to seek his own legal advice on this question. 

Geanette Mott Oxford, Missouri Partnership on Smoking and Health:  Ms. Oxford said that in January, 2005, she will be going to the House of Representatives from the 59^th District.  She said she will be glad to sponsor legislation for a smoke-free law for the entire State.  She said that the pattern of the ten states that have done this, it didn’t start at the state wide level.  It started with several municipalities.  She said Ballwin can help move the process along by being a municipality who puts public health first by wanting to protect the customers and employees.  She said there is evidence that exposure to secondhand smoke increases the risk of heart attack by 40%-60%.  Why wouldn’t a community want to work together to make this succeed to protect the air we share.  She said this is a matter of balancing freedom with responsibility.  She provided a brochure to the Board of what the studies have shown regarding business impact.  She said that bars and restaurants are risky businesses and a lot of them go out of business.  Is it really the smoking ban or other factors?  She said the studies that look at the whole aggregate and see if the revenue went up or down, do not show harm to business. 

Margie Rieder, 548 St. Joseph Drive:  Mrs. Rieder said that the French Quarter has been there longer than some of the people in the room have been alive and said they should be left alone.  She said the people who don’t smoke should open their own restaurant or bar. 

LEGISLATION 

BILL # 3311 - AN ORDINANCE AMENDING CHAPTER 2, ARTICLE V OF THE CODE OF ORDINANCES FOR THE CITY OF BALLWIN, AND IN PARTICULAR, SECTION 2-294 REGARDING PERMITTED CLOSED MEETINGS OF THE CITY’S ADMINISTRATIVE BODIES. 

A motion was made by Alderman Buermann and seconded by Alderman Suozzi for a first reading of Bill No. 3311.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3311 was read for the first time. 

A motion was made by Alderman Suozzi and seconded by Alderman Robinson for a second reading of Bill No. 3311.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3311 was read for the second time. 

A roll call was taken for passage and approval of Bill No. 3311 with the following results:  Ayes – Suozzi, McDowell, Buermann, Fleming, Lembke, Pogue, Robinson, Gatton.    Nays – None.  Whereupon Mayor Jones declared Bill No. 3311 approved and it became Ordinance No. 04-35. 

BILL # 3312 - AN ORDINANCE AMENDING CHAPTER 2, SECTION 2-297, PROVIDING FOR THE REIMBURSEMENT OF COSTS WITH RESPECT TO CERTAIN SERVICES PROVIDED BY THE CITY OF BALLWIN. 

A motion was made by Alderman Buermann and seconded by Alderman Fleming for a first reading of Bill No. 3312.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3312 was read for the first time. 

Alderman Lembke said that under most contracts with credit card companies in the private industry, there is a clause that states you cannot recoup or charge a surcharge when someone wants to use a credit card.  How does that affect this legislation.  City Attorney Lucchesi said that Missouri State law permits this for court fees.  City Administrator Kuntz said that this was made known within the past week which is what made it possible to include this in the ordinance. 

A motion was made by Alderman Lembke and seconded by Alderman Robinson for a second reading of Bill No. 3312.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3312 was read for the second time. 

A roll call was taken for passage and approval of Bill No. 3312 with the following results:  Ayes –Lembke, Robinson, Pogue, Buermann, Fleming, McDowell, Suozzi, Gatton.    Nays – None.  Whereupon Mayor Jones declared Bill No. 3312 approved and it became Ordinance No. 04-36. 

BILL # 3313 - AN ORDINANCE AMENDING CHAPTER 1, SECTION 1-2, BY AMENDING THE DEFINITION OF “KENNEL”, REGARDING THE MAXIMUM NUMBER OF DOGS PERMITTED IN RESIDENTIAL ZONING DISTRICTS. 

A motion was made by Alderman Pogue and seconded by Alderman Gatton for a first reading of Bill No. 3313.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3313 was read for the first time. 

A motion was made by Alderman Lembke and seconded by Alderman Buermann for a second reading of Bill No. 3313.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3313 was read for the second time. 

A roll call was taken for passage and approval of Bill No. 3313 with the following results:  Ayes –Lembke, Pogue, Suozzi, Fleming, McDowell, Robinson, Gatton, Buermann.    Nays – None.  Whereupon Mayor Jones declared Bill No. 3313 approved and it became Ordinance No. 04-37. 

BILL # 3314 - AN ORDINANCE ALLOWING THE MAYOR AND CHIEF OF POLICE OF THE CITY OF BALLWIN TO ENTER INTO AN AGREEMENT WITH THE ST. LOUIS COUNTY POLICE DEPARTMENT CONCERNING TEMPORARY ASSIGNMENTS OF CITY OFFICERS TO THE COUNTY BUREAU OF DRUG ENFORCEMENT. 

A motion was made by Alderman Suozzi and seconded by Alderman Lembke for a first reading of Bill No. 3314.   A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3314 was read for the first time. 

A motion was made by Alderman Lembke and seconded by Alderman Buermann for a second reading of Bill No. 3314.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.  Bill No. 3314 was read for the second time. 

A roll call was taken for passage and approval of Bill No. 3314 with the following results:  Ayes –Lembke, Suozzi, Robinson, McDowell, Buermann, Gatton, Pogue.   Nays – None.  Whereupon Mayor Jones declared Bill No. 3314 approved and it became Ordinance No. 04-38. 

A motion was made by Alderman Lembke and seconded by Alderman Pogue to adopt the consent items.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.

Emergency Management Coordinator:  Mayor Jones recommended the appointment of Captain Steve Schicker to fill the position of Emergency Management Coordinator, which was formerly held by Captain Rick Wise.  A voice vote was taken with a unanimous affirmative result and the appointment was approved.

Fine Arts Vacancy:  Mayor Jones said that Tom McCarthy has submitted his resignation from this commission.  He asked for suggestions for a replacement to fill Mr. McCarthy’s position.  Mayor Jones said the Arts Commission is going to continue with its November 5 function.  He asked the Board to recruit new members to this commission to show support for the Fine Arts Commission, with a total of seven commission members, which would consist of four new members.  City Administrator Kuntz suggested that staff evaluate the arts commissions from other cities to determine how many members are a good number for an effective program.  He said that perhaps the enabling legislation should be reviewed and changes proposed to the Board.  Alderman Gatton agreed because there has been a lot of turnover in membership.  He asked staff to reconsider the purpose of this commission and what type of people should be appointed to the commission.  Mayor Jones agreed.

UPS Store:  Mayor Jones said that on Tuesday, September 14, the former Mail Boxes Etc. store will become the UPS Store.  Since this is a grand opening, a representative from the City should attend the reception.  Mayor Jones said he planned to attend but has been assigned to trial at 9:00 a.m. on this date.  Alderman McDowell said a representative from Ward 1 will attend.

TIF Report:  City Administrator Kuntz said in speaking with the TIF Council, that any significant modification of the plan would require a public hearing and a formal approval by the commission as well as by the Board of Aldermen.  He said it’s a formal process to modify expansion of the district.  The proposal for the district should be submitted again for another attempt to test the market with proposals.  If not successful, at that time, elimination of certain affected properties should be entertained.  They feel strongly that market conditions have changed and that Ballwin should proceed with haste to test the market conditions with solicitation of proposals so that the affected property owners will know their status.  Alderman Suozzi agreed and it needs to be proven to the commission that Ballwin can do something with this area before adding on another area. 

Alderman Gatton said that there was discussion about the possible addition of the area to the east.  He said that because the area is currently residential, it might remain residential.  He doesn’t hear any recommendation from the TIF Commission that this area remain residential.  He said in a TIF District, it will be commercial rather than residential.  Alderman Suozzi said that some of the members of the TIF Commission believe that because of the residential aspects of the area to the south, and commercial along Manchester Road, that a transitional use would be better.  She said the school district raised this issue because they are not interested in anything other than commercial.  By the nature of the development, there is a separation.  These two areas are not connected, so any proposal received could not connect them.  Alderman McDowell said the minutes stated that it is the consensus of the members of the commission that the district boundaries should not be expanded through Ballwin Manor that it will be a multiple family element.  He said the Board has not recommended that the property be turned into multiple family residences.  The position that Rockwood School District has taken is self serving.  He said that transitional is justifiable because it could transition from commercial to a church property and then to residential.  To the east would be the Southwestern Bell property and southeast is some residential property.  Mayor Jones said that a public hearing must be held to include this property. 

Alderman Gatton asked should a Request For Proposal be requested for section 2b without waiting for the TIF Commission to decide on the eastern parcel, or should the eastern portion be included as a possible option in the RFP?  City Administrator Kuntz said it should be sequential because there are affected property owners in sub area b that had petitioned to be removed.  In fairness to them, that question should be addressed.  If 2b cannot be marketed, which has less negative impact and less issues, why is the other side any different. They are not contiguous, and if there is a good proposal for one, the developer may be interested in further development to the east.  City Administrator Kuntz suggested moving forward as quickly as possible with 2b so that the concerns can be addressed. 

A motion was made by Alderman McDowell and seconded by Alderman Gatton to reconvene the TIF Commission to hold a public hearing to consider the addition of property east of Ries Road.  A voice vote was taken with 6 yes votes and Aldermen Buermann and Suozzi voting no.  The motion was passed by a vote of 6-2. 

A motion was made by Alderman Gatton and seconded by Alderman Fleming to issue the Request For Proposal for 2b.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.

City Administrator Kuntz asked if the Board wants the two motions done consecutively or sequentially.  One was to go forward and instruct the TIF attorney to generate the procedures to create the public hearing process to expand the TIF District.  Mayor Jones said the RFPs can be issued on 2b before concluding the hearing process and said that it would be sequentially. 

Meadowbrook Signs:  City Administrator Kuntz said there are some qualifications regarding maintenance and liability.  Alderman Gatton said that they have said they will do the maintenance so there wouldn’t be additional expense to the City to maintain a non-standard sign.  City Administrator Kuntz said that the signs will enhance the character and identity of the subdivision.

Alderman Fleming asked if the signs would block someone’s visibility or traffic.  City Administrator said no.  The signs would have to meet the height and setback requirements. 

Alderman Gatton asked if there would be any hindrance to emergency response and being able to understand the signs and respond appropriately.  City Administrator Kuntz said no because the Code of Ordinances states that every habitable dwelling must have a certain size sign/address on the structure.

Alderman Suozzi asked if there will be a further proposal by the new development to do something similar.  City Administrator Kuntz said he has not had any conversation to that effect.  A confirmation letter would be required and kept in the file so that there would be no future misinterpretation. 

A motion was made by Alderman McDowell and seconded by Alderman Lembke that the new Meadowbrook signs be accepted, and a letter from the Meadowbrook Country Club Estates Trustees be obtained stating that they assume all responsibility for the construction, installation and maintenance of these signs.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed.

Capital Cash Flow:  City Administrator Kuntz said that a motion is requested for a temporary transfer from the operating budget to the capital budget.  This is a cash flow issue due to bond payments coupled with construction.  The entire $300,000 would be replenished before year end.  Because of the bond indebtedness, and now the pre-funding requirement for the advance payment of interest, there is a crunch to stay with the credit record of 30 days net pay.  To do this, a motion is necessary to transfer from one budget to another.  This will not impact reserves and not have any long term impact.  This is strictly a short term, 90 day situation that will be replenished by the end of the year with a reverse transfer. 

City Administrator Kuntz said that the auditors have requested that we adjust our accounting procedures and not encumber funds at year end.  Anything that is not paid by December 31, will go into the pot as non-expended. 

A motion was made by Alderman Buermann and seconded by Alderman Lembke to approve the short term transfer of $300,000 from the operating budget to the capital budget, to be transferred back to the operating budget by the end of this year.  A voice vote was taken with a unanimous affirmative result and the motion was declared passed. 

Police Chief of the Year:  City Administrator Kuntz said that Police Chief Jim Biederman has been selected to receive the “Police Chief of the Year” award in the State of Missouri.  He will receive the award at the Fall conference at the Lake of the Ozarks.  Jim was nominated by Mayor Jones for this award. 

Police Department Recognition:  City Administrator Kuntz said that approximately a week ago, there was an armed robbery at Richter’s Florist.  Because of quick and professional handling by the Police Department, an arrest was made inside the building with no loss of financial or personal safety.

None.

Smoking Restrictions:  Alderman McDowell requested that at the next Public Health & Safety Committee meeting on September 27, that a substantial proposal be made so that this issue can be resolved.  Alderman Robinson, Chairman of the Public Health & Safety Committee, said that he does not expect to have anything to vote on at the September 27 Aldermanic meeting. 

Kiefer Creek Drive:  Alderman Lembke said that he has been contacted by the Trustees concerning the Kiefer Creek Drive dedication in the annexation area.  They would like the Board to consider the possibility of giving them some acknowledgment that Ballwin will accept the private street for public maintenance.  He explained to the Trustee that the roadway is not in the Ballwin jurisdiction at this time.  Some residents are saying that they are not going to vote for Ballwin to annex their area unless they have assurance that Ballwin will accept this private street.  Alderman Lembke said that their concern is that they can’t bring the street up to Ballwin standards because it’s currently 16-18 feet in width and the standard calls for 26 feet wide.  He said that Ballwin has accepted private streets in the past when they have been brought up to a certain standard that still didn’t meet all of the Ballwin standard. 

City Administrator Kuntz said that if Ballwin used the Town & Country model, this would allow limited contractual maintenance and snow plowing.  Alderman Gatton said that since we have done something like this in the past, we may be able to do this in the future.  Alderman Suozzi said that a vote on the annexation is after April, 2005.  There are four aldermen that may not be here so no pre-determination can be made.  Alderman Lembke said he told them that we cannot commit a future board to something we don’t have legal jurisdiction; however, there should be no reasonable reason why they could not expect that there might be consideration given to their situation in the future.  Alderman McDowell said this issue will come up later for a vote and he does not want to influence this with any inclination that we may be able to do this.  He said that based on the past, there is no indication of what will be done in the future.  No promises should be made to any future annexations. 

Smoking Restrictions:  Alderman Fleming suggested that the Public Health & Safety Committee at their next meeting put together a time line so that the issue does not continue to be tabled.  A date can be designated to have another bill for consideration that will promote a general agreement, and eliminate Bill # 3305.  He said he doesn’t want everyone to continue coming to the meeting for this issue and it continue to be tabled. 

Capital Fund Issue:  Alderman Fleming said that the data provided to the Board give a good picture of informing the Board what has occurred, but don’t give information of what financial issues are up ahead.  He suggested that if there are major obligations that are coming due in 90 days or 180 days, to have these items listed so that the Board knows what major expenditures are coming up.

City Administrator Kuntz said this will be done in the future.  He explained that with some of the revenue sources, there are unpredictable fluctuations.  He said that Finance Officer Loehr is “hands on” with the cash flow of this city.  Upcoming expenditures will be noted in future reports.

Alderman Buermann asked what was the revenue impact was on the swimming pool since it was a cool summer.  City Administrator Kuntz said what made the positive difference was season memberships and what declined were the daily admissions.  Another positive difference was the 21 days when the pool didn’t open or closed early because of bad or cool weather. 

CERT Program:  Alderman Pogue said the Ballwin Police Department and Metro West Fire District provided an excellent CERT Program.  There are 7 members of the Metro West CERT team in Florida at this time.  He urged staff and residents to attend the classes.  He said that Ellisville is sponsoring a class the first weekend in October.

A motion was made by Alderman Buermann and seconded by Alderman Gatton to adjourn.  The motion passed unanimously and the meeting was adjourned at 8:20 p.m.

MC