Matt and Clark the time is 6 p.m. I call to order this special study session of the in-reville city council This meeting is being conducted in person at 1333 park avenue here in in-reville, California The city council welcomes comments including criticism About the policies procedures programs or services of the city or of the acts or missions of the city council. Speakers shall not use threatening profane or abusive language, which disrupts disturbs or otherwise impedes the orally conduct of a city council successor agency management of in-reville services authority or related meeting. The city is committed to maintaining a workplace free of unlawful harassment and is mindful that city staff greatly attend city council meetings discriminatory statements or conduct that would potentially violate the for fair employment and housing act, such as statements or conduct that is hostile, intimidating, oppressive or abusive, is per se disruptive to a meeting and will not be tolerated. Madam Clerk, the roll, please. Council member Bouders. Here. Council member Carr. Present. Council member Prifors. Here. Vice Mayor Mora. Present. Council member Carr, present, Council member pry force here, vice mayor Mora, present and mayor Welch here. Item three is approval of the final agenda members. Do we have a motion on the final agenda and move approval? Second, Madam Clerk, we have a motion. A second. The roll please. Council member bowters. Aye. Council member Carr. Aye. Council member pry force. Aye. Vice mayor Mora. Aye. And Mayor Mora. I. Mayor Welch. I item 4s. Expartake Communications. Members, so any of you have any expartake communications to report out for this agenda? Singing, hearing none. Item 5 is public comment for items not on the agenda. Any member of the public wishing to make an item, make a motion to make a comment on items not on agenda. So now for two minutes. I was at the Salano stroll yesterday. And there I see council member bowters. He has a tent set up and he's Talking to voters about his campaign for it to become the element of county district super budget for County supervisor for district five So because he's there in public and not in this chamber where I usually see him I'm able to talk to him and there's nothing he can do to stop me so I whip out my camera Which I usually do when I catch mr. Bowders out in public and I ask him questions about his public policy. And I do the same thing to the Mayor Courtney Welsh and to Council Member Sukh Deepkar. I do the same thing to those these three Council members and the reason why I do it is because the three of you are not, you won't answer questions or emails or texts, you don't, the three of you don't believe in accountability. And so you drive me to take my camera whenever I see you in public to try to get answers to my questions. You know, it's public policy, the key word in public policy is public. It belongs to us, not you guys. So we have questions. So I cornered Mr. Bouders and then he told me, I'm gay and then I'm in the closet and then I'm in love with him and that's why I keep bothering him. And so I thought, well that's pretty bizarre because he had said the same thing about Rob Arias who apparently does the same thing as I do to ask some questions in public. Mr. Bouters told me that Rob Ares is also secretly gay in the closet and that's why he's like obsessed with Mr. Bouters and that's why I'm obsessed because we're both in love with Mr. Bouters. He told me. So what do you call that? That's called narcissism. So that's textbook narcissism. And you know I, Mr. Bouters is like you cannot imagine that somebody might not like his public policies. Thank you for your comment. Narcissist. Thank you for your comment. Any other member of the public wishing to make public comment on items on the agenda? Seeing and hearing none, public comment is now closed. Item six is the study session item. Group three amendments to various municipal code provisions to eliminate or modify criminal penalties for code violations. Hello, Mr. Kennedy. Hello, good evening, Mayor Welch, Vice Mayor Mora and members of the City council. I'm going to introduce the council to the council. Hello, Mr. Kennedy. Hello, good evening, Mayor Welch, vice mayor and members of the city council. It's my pleasure to present the last group of potential amendments to the Emory Film Municipal Code in our efforts to decriminalize the various offenses that are listed in the recommendations. We're going to be preparing a staff report which kind of goes through the history and also identifies those ordinances that we're going to be discussing tonight. There was also a table that was included as an attachment that groups the various amendments into subsections. Those were the council indicated that they did not want any further amendments. Those were staff are making and we're making recommendations not to make any further amendments and there's two areas where we're recommending repealing various ordinances. And I also just want to indicate since that was published last week just to put a tab in the public drinking ordinance, which is under the intoxication section, we're going to be making a recommendation in that area. But I'm going to turn making a recommendation in that area. But I'm going to turn it over at this point to Margaret Katsabue, who's our special counsel and has been working on this project. Who is attending remotely and she will walk you through a PowerPoint presentation. And then we can have discussion regarding the presentation after that. Thank you very much. Thank you, John. Are you able to hear me? Yes, Margaret. Good evening. Go ahead. Good evening. So good evening, Mayor and Council members. My name is Margaret Katzi Bu and I am here tonight to give a presentation as John mentioned on the group three amendments, which is the last group, as part of the city's ongoing decriminalization project. Next slide, please. So I know we've gone over this a number of times, but I've been thought it'd be helpful to find out how we got where we are. So as background, back in 2020, the city council reviewed all of the criminal penalties in existing in the municipal code and directed staff to evaluate whether criminal penalties for certain code violations could be eliminated or modified. And to remind you what we've done so far, I've listed the previous council actions here. Starting in December of 2022, the council amended the penalty charts that are included in chapter two of Title one of the municipal code to remind you these penalty charts designate what violations of the code can be prosecuted as an infraction or a misdemeanor. the city council adopted what we grouped as group one amendments, which were essentially clean up amendments to 35 chapters in the muni code to bring these codes into compliance with the penalty charts we had just amended in December. Next slide please. Most recently the last action we took in the project occurred in June of this year. At that time, the Council considered amendments for 14 municode chapters that were called, that were a part of what we called group two amendments. And included in these amendments was a general amendment to the city's penalty structure where the council eliminated the option to increase an infraction penalty to a misdemeanor when there were over four or more infractions of the same code during it one year. The council also took action to increase the fine amounts for building code violations that was permitted pursuant to state law. And then finally we made substantial, substantive changes to certain chapters, including the city's taxi cab ordinance, which was a vehicle for higher ordinance and the sidewalk and street vendor ordinances to bring them in compliance with state law. Next slide please. So tonight as John mentioned we're looking at the last group group three amendments. meeting the city council designated 17 code sections to be studied at a future study session and that is what we're doing tonight. And in looking at these code sections we consulted with city departments and staff who are in charge of enforcing the respective chapters and we also researched what the city was permitted to regulate pursuant to state law. And finally, we look to consider whether the council had already taken recent previous action on the particular chapter or had previously studied whether an amendment to the code should be made. Next slide, please. So as John mentioned, we divided the group three into further three categories, which are on noted on the attachment a attached to your staff report. The first is those chapters where the city is recommending we maintain those current criminal penalties and I will note that one change that we may discuss later on. And the third category would be those chapters we believe could be repealed in their entirety due to the fact there's already a state law in place that can be used to enforce it or at least with one of the chapters it's now obsolete. And for my presentation, what I plan on doing is providing a brief summary of each code section and walking you through our recommendation for those. And then at the end of my presentation I'll welcome any comments or questions on any particular code section. Next slide, please. So this is the first category we're looking at that's in attachment A to your staff report. These are the codes where Council had already taken action. The first one we're looking at is MC5-4 on cabarets and dances and we noted in November of 2022 the council actually approved a new permitting process for businesses interested in these activities which essentially removed the land use conditional use permit requirement and made it an administrative permit that's issued by the chief of police. And at that time, we noted that the violations to the ordinance were confirmed to be an infraction and therefore the staff doesn't recommend any further action or changes to that penalty at this time. The next chapter we're looking at is EMC 5-13, which is the city's noise ordinance. This chapter prohibits excessive or annoying noises, amplified sound or vibrations that are prolonged or pronounced so as to disturb the public or residents. And we note that noise ordinances are sometimes difficult to draft or enforce in that it's difficult to measure or quantify noise levels or to identify source of an offending sound. And we looked and noted that in 2017 and 2018, the council had actually engaged in an extensive review to determine whether the noise ordinance should be amended and look to see whether we should establish an objective standard such as a decibel level in measuring excessive noise. And in doing that review, the council or the city engaged in a consultant and had a noise study done. And at that time, most noise complaints received by the city were related to construction noise, loud parties or amplified music. And after studying possible amendments to the code, the council ultimately took no further action due in part to the difficulty in establishing objective standards and enforcing the code based on these objective standards. Since that time, the city has continued to the type of noise that's made during construction and the time, but it goes through building standards to review in its development standards to reduce effects and noise of residences. So therefore, staff does not recommend any further changes to this ordinance or to change the criminal remedy of infraction. As staff notes, they have not really received a significant amount of noise complaint since 2018. And it appears that the existing proactive measures in the noise ordinance seem to be and with other actions taken by the city. They seem to be working. The next one on the list is MCC 5-14, obstruction to streets. For some reason it was listed both with the group two and with this section, group three, we you had already looked at this code in June and made amendments and we do not recommend any further amendments at this time. And finally, firearm regulation, That's 5-30. When looked back in 2020, the Council actually directed staff to consider whether fire arm dealers could be prohibited as a use in the city under law. And we briefly looked at the issue and it determined that a city ban on firearms dealers as a use could lead to constitutional Second Amendment objections or lawsuits. And given recent Supreme Court decisions, I note there was actually a decision issued yesterday on what types of weapons could be used in or possessed in public. But there have been a lot of changes in the areas of evolving. If the city wishes to continue to study this issue, we would need to conduct a further and more intensive research to determine whether a ban could be constitutionally permissible. However, in the alternative, staff believes that the existing permitting structure that's in place under five dash thirty sufficiently protects the city's interest in public. At that time, a firearms dealer business proposed to open up on San Pablo Avenue, and it's my understanding there were no regulations at that time regarding firearms dealers. In response, the city issued a temporary moratorium to allow staff to develop appropriate zoning and permitting regulations of firearms arms dealers. And as part of that, they developed the city developed a permitting process. It's currently in place in 5-30 and it's similar to how the city regulates cannabis businesses if you're familiar with that. Firearms business is limited to a certain district, the heavy industrial zoning district. It's my understanding it's only a two or three block area in the city. And businesses are also limited to locate, they can't be within 200 feet of residences, 500 feet of other dealers, or within a thousand feet of a public park religious institution or a school. In addition to the zoning process or the zoning permit and the restrictive locations in EMC 5.30 the chief of police would also need to issue a permit which would be done after a background check of employees in the owner or view of the security plan and other types of requirements. We also noted that violations to this ordinance are subject to infraction and misdemeanor under the code, which we believe we should keep. We believe those are adequate remedies for this measure. And all in all, we believe that the measures that are set in place for EM5-30 in the permitting process are adequate to protect the public and that no further action is necessary. Next slide, please. This is the next category of chapters that are noted in your attachment. These we do not recommend changes other than what I will mention regarding the intoxication ordinance. So the first one EMC 5-9. This chapter provides it is unlawful for any person to appear in a public place while intoxicated. That's 5-9.01. This is subject to an infraction. It's also an infraction to possess an open container of alcohol in the public, under 5902. And if you consume that open container, that could be subject to a misdemeanor under 5.9-03. And the police department wishes to keep the criminal penalties in place for the reasons articulated in the staff report, basically to for public safety and to maintain control in public streets of alcohol use. But the police department also noted that section 5-9.01 which is the public intoxication ordinance. That one is also covered by a penal code so they're not adverse to removing the section for the municipal code. There are other ways that they can charge people for that crime. In addition for the misdemeanor for consumption of alcohol in a public place, they are open to considering making the first offense an infraction with the second offense occurring within 90 days of misdemeanor. So that's something that we would like feedback from the council on whether that amendment should be made. The next on the list is EMC 5-29, which is the city's smoking ordinance. This chapter prohibits smoking in public places and in multifamily residences. Violations are subject to infraction, administrative citation, or a civil private action for liability of breach under the lease. And in 2023, staff was approached by the Alameda Health Division with the concern about possible misdemeanor penalties for violations of this ordinance. At that time, if you had three or more or over three infractions, you could be subject to a misdemeanor. But since we've eliminated that option with the group two amendments, as I've mentioned earlier, that's no longer an issue. And staff believes that we should maintain the ability to use infractions as another method to enforcing the smoking ordinance due to health and safety concerns. And the final set of codes, in the list, these are EMC 8-1 through 8-11, the building codes, these are building codes, plumbing codes, electric codes. The city of Emeryville, similar to other cities, have adapted standard industry building regulations to put in place uniform building standards. There are certain restrictions on when the city may choose to make amendments to these adopted codes, but the city is permitted to use its existing civil administrative or criminal penalties in their codes for enforcement. And currently under the penalty codes violations are penalty chart, the violations for these codes are subject to infraction. And as the code requirements are protect public health and safety, staff does not recommend eliminating or reducing the criminal penalty for violations of these codes at this time. In addition, we know, as I mentioned earlier, with the group two amendments, the infraction penalties for building violations were increased. So we would like to keep that also as an option and still in place this time. Next slide please. So we're almost there. This is the third group of chapters that we looked at. These are chapters that we recommend repealing in their entirety. We've looked at EMC 5-2, which is the advertising ordinance. This section prohibits certain advertising or signage on private property and public places. And first, staff noted that this is an outdated code section and is little used. And that staff relies on other ordinances, notably the city sign ordinance, which is included in the development code or Article 16 of Title 6. And we also note that EMC 5, 2 includes provisions that may conflict with the city sign sign ordinance and that there's a requirement that signs not be located or there's a location limitation of 50 feet from residences and there are many signs that have been given permits under the sign ordinance and the master sign program which may actually conflict with this section. And there's I also note there was a section in there that related to a bridge that no longer exists. It's my understanding. So that part of the code is also outdated. Therefore, as staff is not relied on the section as a tool in regulating signs in recent history, we recommend repealing it in its entirety as it's obsolete. And the last chapter on our list is EMC 5-8. This is the section in the code that deals with gas water and electric meters. This chapter makes it a misdemeanor for anyone who tampers with gas, water, or electric meters. However, penal code section 498 also provides that this offense is punishable by a misdemeanor under state law, and staff does not believe the section is necessary for enforcement. It's also my understanding that I think PG&E and perhaps PUC actually enforces this, but I need to check that with staff. In any event, we recommend that this chapter EMC 5-8 also be repealed in its entirety. Next slide, please. So we made it through. Thank you for your patience in allowing me to go through each of these chapters and staff's recommendations, and I'm available for questions or feedback. We also have staff present to answer. I'm not in the room, but I believe we have someone from the police department and current development to answer into questions you may have. And that concludes my presentation. Thank you. Thank you, Margaret. Members, before I call for a public comment I'm going to go ahead and move on to the next slide. Thank you. Thank you, Margaret. Members before I call for public comment and bring it back for deliberation. Did any of you have any clarifying questions for staff? Number five, force. Thank you, Madam Mayor. Thank you, Margaret, for your presentation. Can you tell me a little more about EMC 2 and the provisions that were in conflict with our current city codes? Yes, you mean that the advertising ordinance? Yes, you mentioned the five-two. Yes, you mentioned the five-two. Yes, you mentioned the five-stool. Yes, you mentioned the bridge. Oh, yes. Yeah, so the bridge. Yeah, that. Overpass. Yeah, yeah. Yeah, yeah. Yeah, Pals Street Overpass. Yes, but the other provisions, where are the provisions that are in conflict? With our, what the city currently uses to regulate signage? Yes. Section five, dash 2.02 requires that someone get a variance to put in a sign that is in within 50 feet from any dwelling or residence. And that is not what staff, I've been told staff doesn't use this any longer. And there's no, it doesn't even match the variance procedure that's set forth in the code. I think the references incorrect. And I think, I find I looked, this code has, is an original code to your municipal code and has never been modified since it was originally adopted. I believe that is if if me, me, Ru is in the room, she may also be able to give more clarification. question. Hi, Miro. Good evening, Mayor and Council members. So, Margaret is correct in the sense that the five dash two was the original, original part of the Emerald Code. Since then, we have adopted General Plan and associated with that, we have adopted General Plan and associated with that, we have adopted planning regulations and they have defined signage in our city. And that's what we have been using for the last 20 years. So, frankly, till we had this project, I didn't even realize that we had five dashed to that referred to signage. And then I'm looking into it, I pointed out that there are some conflicts with the sign ordinance which is more contemporary and what's been used, that have been used. Number five fourth. To follow up. So what we're eliminating now was the original. Then we had the general plan, and then we have our planning regulations. So what we are eliminating was some signage, which was part of the original municipal code. Okay. And at that time, I don't know what signage regulations were under the planning code, but what we have been using is the general plan which was adopted in 2009 and from which we have the planning regulations that includes the signage. So essentially, when over the years, when the sign ordinance has been updated in Title IX, which is the planning regulations, we did not make sure that the plan is done. The plan is to make sure that the plan is done. The plan is to make sure that the plan is done. The plan is to make sure that the plan is done. The plan is to make sure that the plan is done. The plan is to make sure that the plan is done. The plan is to make sure that the those elements that we did in clean up, why were they dirty in the first place? Like why didn't they get adopted? So for example, this, I believe, is 50 foot variance from any dwelling. Why is it that we don't have that, that wasn't adopted by a general plan? If you know of any reason why our general plan and our current planning regulations prohibit that now. It's just not there. Okay. It's not so much about prohibition. It's a weird regulation that is in the original. I'm not sure what was the reason to have that provision in the first place. But it just doesn't, it has no reason to exist. It doesn't make any sense to have that, especially since if we were to actually include it, then we would render a lot of signage non-conforming. That makes sense. Yes, that's it. Thank you. Thank you. Any other questions from any other members for our call for public comment? Nope. All right. This is now time for public comment. Any member of the public wishing to comment on the study session can do so now for two minutes. OK, I took a picture of the slide. EMC 5.9 or 5-9 public intoxication. OK, so it's illegal to be intoxicated in public. That seems reasonable. But I wanna talk about 5.5-902 in 5-903. You're not gonna change this, but you should change it. Possession of an open container is subject to a refraction, because consumption in public places, subject to a misdemeanor of alcohol we're talking about. So as it is right now and you're proposing to not change it and that you can walk down the sidewalk drinking a Pepsi. But if you're drinking, that's perfectly fine. But if you're drinking a beer, you're committing a criminal act. So this is like blue law. It's like prohibition style thinking or like maybe, you know, you know, I'll call it as a legal product. And as long as you're not intoxicated, there's no harm, there's no victim. You can't point to a victim for a person walking down side by side. One person with a Pepsi, one with a beer, the one with a Pepsi is fine. One with a beer is a criminal. You can't point. You can't show us a victim. And so then, therefore, it should not be a law against it, since there's no victim. So this is this is nanny government. It's a place where the government should not be. And then also consuming. You can drink a Pepsi, but you can't drink a beer again. I agree you shouldn't be allowed to be intoxicated in public. So that covers it. But you should be allowed to drink in public. And there's somebody that agrees with me. And his name is Captain Oliver Collins, former chief of police Ken James agrees. A lot of people like drinking wine in the park, having a picnic. Thank you for your comment. It doesn't make any sense. You should change it. Thank you for your comment. Any other member of the public wishing to make a comment? Singing hearing none, public comment is now closed. Members, I turn to you for deliberation. Member Price Force. So I want to thank Mario for the presentation and Mirou for for the clarification as to how five dashed to relates to our general plan and occurring planning regulations. The law that we actually use to to relates to our general plan and our current planning regulations, the law that we actually use to regulate our signage rules. So, I mean, it's always, I mean decarbonization is good, but I am a leery of anything that relates to freedom of speech so close to a general election. And that I believe that this particular point shouldn't be included with the rest of these recommendations because of this, it's proximity. We'll listen too much away. And I just, I think it would be, it has raised concerns with members of the public, even on my way here. There's someone stopped me and to talk to me about it because they had, you know, they were worried they were concerned of anything that could be enforceable as it relates to signage that, yeah, that would suppress freedom of speech. And so that's my view. I mean, I'm not going to produce a motion or do a substitute motion. As we lay to that, I just, I do express my concerns about the timing of this and whether or not we, how this is being perceived by the public. Can I ask staff to remind me, when did we start? This is group three of the amendments. When did we start reviewing the municipal code to eliminate or modify criminal penalties? Because I know this started before I get this started in 2020 correct. So this has been going on for four years. So as far as just any type of concerns around timing, this has actually happened over the course of quite some time, correct, but even before your time here, Mr. Kennedy, I do believe. Thank you, Mayor. Well, she was correct this started before my 10 year with Emeryville started. It was an effort that was undertaken in 2020. And we've gained speed, but as you can tell, it's a very large undertaking. We've tried to group things in large chunks and do it in a way that makes sense and that we can digest it and discuss with the council over a process. And so that's just the intent behind why we're doing these amendments at this time. Thank you for that clarification. Member Pryorffs? So you asked for a amendment. You asked for a clarification from the city attorney when it was on the presentation that this, that we are doing this out of something that came out of 2020. And so, you know, I find it odd that, well, actually, it's no longer odd. I think it's rather quite predictable that when I share any mode of clarification, it is my job as a public servant to clarify things for the public. And so although any air, as if I am not aware or I don't know something, what I do ask is that you consider that the reason why I may bring things up is because things have been brought up to me. And so, so, you know, thank you, Mr. City Attorney, for clarifying something that was already clarified. And I just want to thank you for clarifying something that the public may already be aware that this has been a process of decriminalization, some of our code for quite some time. But when something comes up, especially when people are feeling very sensitive about the general election, that they just want someone to say something. And so, and that's the reason why I am here to be a voice to the people. And so, from here on, what I do ask the public, because there's a lot of video evidence that shows a level of, how do I best call it, a certain way, a style of addressing, after I've said something, addressing what I've said, or a question that I ask, I just ask that my colleagues are aware that just because I'm saying it doesn't necessarily mean that I'm saying it. I'm saying what the people who have brought things to me that I am sharing with this body in order to make sure that it is public record. And I ask that that be treated with respect. Thank you. Member Batters. Thank you. So as to the questions that were asked in the staff presentation, I support the staff as a number of these chapters, for which they recommend no changes. That's in fact almost all of them and that's largely because they're related to building our electrical code or mechanical codes and those are things encoded in state building code and law. So I support that not making any changes for the two chapters to be repealed related to advertising and gas electric and water meters for the reason staff stated about repealing the chapters I'm supportive of that recommendation. And then as to the one nuanced issue, which was in 5, 9, the intoxication chapter, I support the city staff nuance in agreement with the police department on 9.03 related to consumption to have an infraction for consumption of alcohol beverages in a public right of way with a 90 day window where it becomes a misdemeanor for a second offense if there's a concern about habitual intoxication or consumption in a public right of way. I think that's a nuanced and balanced approach to not over criminalizing something that shouldn't be. So those are my comments. Thank you. Any other comments? I was mayor. I didn't really put you on the spot. I was just saying. No, it just it seems clear that the chapters that are being proposed for repeal are there essentially I mean that this word isn't used but they're basically obsolete right one hasn't been used in 20 years and another one is redundant so the staff with the recommendations to repeal the two chapters in question don't seem very controversial to me and you know after the discussion I would propose adopting the recommendations. I'm required. Did you have anything to add? I think I've heard some of these in the Transportation Committee so I actually agree with the recommendation. Right. Well members it sounds like we're all in agreement with with the So, we can certainly provide an ordinance that repeals these various sections and makes the amendment to section 5.9.03 along the lines that councilmember Botters just reiterated previously and we can do that within one ordinance and bring that in a timely fashion. All right, sounds good. Everyone has their direction? Any other final comments? I actually did have one. I just want to thank you member bountors for bringing this to the forefront. It's been a mighty undertaking for staff, but I always say communities are living breathing things and as they grow and change adjustments need to be made, there's nothing that needs to be a part of the municipal code that hasn't been used in 20 years or would perhaps over criminalize many times, very vulnerable populations within our city. So I really appreciate everyone's work in the foresight from my current colleague and many of our predecessors and just thank you very much everyone. Madam Clerk, the time is 641 and this meeting is adjourned.