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CITY OF SHAWNEE - DOC 9

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					                                   CITY OF SHAWNEE
                                CITY COUNCIL MEETING
                                       MINUTES
                                  SEPTEMBER 24, 2007
                                        7:30 P.M.

Mayor Meyers called the meeting to order at 7:32 p.m. in the Shawnee City Hall Council
Chambers. He welcomed the public and all stood and recited the Pledge of Allegiance, followed
by a moment of silence.

 Councilmembers Present                  Staff Present
 Councilmember Scott                     City Manager Gonzales
 Councilmember Pflumm                    Assistant City Manager Charlesworth
 Councilmember Sawyer                    Deputy City Clerk Powell
 Councilmember Goode                     Assistant to the City Manager Singer
 Councilmember Kuhn                      City Attorney Rainey
 Councilmember Straub                    Assistant City Attorney Rainey
 Councilmember Sandifer                  Public Works Director Freyermuth
 Councilmember Distler                   City Engineer Wesselschmidt
                                         Planning Director Chaffee
                                         Police Chief Morgan
                                         Fire Chief Hudson
                                         Finance Director Kidney
                                         Parks Superintendent Helwig

Members of the public who spoke: (Item 10) MIKE UNTERREINER, 31820 W. 115th Street,
JOHN HANSEN, 13913 W. 73rd Street, TONY LANG, 11914 W. 59th Terrace, PEGGY
GIBSON, 7515 Cody #5, CHRIS SUTTON, 16649 Midland Drive, BILL NIGRO, Kansas City,
MO, JIM DENTON, 13820 W. 77th Terrace, MIKE TRAMP, Owner of Foobars, PAUL
CUNARD, 6823 Greenwood, LOUIE RIEDERER, 9503 Falcon Ridge Drive, STEVE SMITH,
4719 Stearns, TONY GILLETTE, 5622 Brownridge, RAY ERLICHMAN, 7510 Garnett Street,
DOROTHY GUTHRIE, 14070 W. 50th; (Item 11) EDWARD DANIELS, MHS.

CONSENT AGENDA

1.     APPROVE MINUTES OF THE CITY COUNCIL MEETING OF SEPTEMBER
       10, 2007.

2.     REVIEW MINUTES OF THE PLANNING COMMISSION MEETING OF
       SEPTEMBER 5, 2007.

3.     REVIEW MINUTES OF THE PARKS AND RECREATION BOARD MEETING
       OF AUGUST 2, 2007.

4.     CONSIDER EASEMENT TO KANSAS CITY POWER AND LIGHT COMPANY
       FOR JUSTICE CENTER AND FIRE STATION NO. 2.
PAGE 2                                 CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


         Grant Easement to Kansas City Power and Light for Justice Center and Fire Station No. 2

5.       CONSIDER EXTENSION OF AN                       EXCEPTION TO THE SHAWNEE
         MUNICIPAL CODE RELATING                        TO OFF-STREET PARKING IN
         RESIDENTIAL AREAS.

         The City Council previously approved a request for Joseph and Lori Meyer, 12526 W.
         66th Terrace, to park a commercial vehicle in their driveway that exceeds the size
         restrictions set out in the Shawnee Municipal Code. The Meyer's permit is the last
         exception granted under the zoning code and is no longer available to Shawnee residents.

Councilmember Sawyer, seconded by Councilmember Goode, moved to approve the entire
Consent Agenda. The motion carried 8-0

MAYOR'S ITEMS

6.       THE MAYOR WILL READ A PROCLAMATION FOR FIRE PREVENTION
         WEEK.

         Mayor Meyers recognized the Boy Scouts from Troop 194.

         Mayor Meyers introduced and welcomed five students and their relation‟s officer from
         Erfurt, Germany visiting Shawnee this week. They are here for a 10 day stay. They are
         doing a lot of activities while they are here and their schedules are full. They are learning
         a lot from the community and school systems.

         Mayor Meyers presented a proclamation proclaiming October 7 – 13, 2007 as Fire
         Prevention Week in the City of Shawnee.

         Fire Chief Hudson honorably accepted the proclamation.

PUBLIC ITEMS

7.       CONSIDER APPROVAL OF A LICENSE RENEWAL FOR A PAWN
         BROKER/PRECIOUS METAL DEALER FOR SHAWNEE AUTO AND PAWN
         10704 SHAWNEE MISSION PARKWAY.

         Mayor Meyers stated that Morton Glazer, 10704 Shawnee Mission Parkway is requesting
         approval for a license renewal of Pawn Broker/Precious Metal Dealer. Shawnee Auto and
         Pawn was first approved for business by the City Council in August 1992.

         Councilmember Pflumm asked if there have been any problems or issues before they go
         forward with approval.

         Deputy City Clerk Powell replied to his knowledge, there has not been any issues.
PAGE 3                                CITY COUNCIL MINUTES                     SEPTEMBER 24, 2007


         Councilmember Sandifer asked if Mr. Glazer has taken care of all the landscaping issues.

         City Manager Gonzales stated the landscaping issues were at another location.

         Councilmember Goode, seconded by Councilmember Pflumm, moved to renew a license
         for Shawnee Auto and Pawn, 10704 Shawnee Mission Parkway, with an expiration date
         of September 30, 2008. The motion carried 8-0.

8.       FEDERALLY TAXABLE PRIVATE ACTIVITY REVENUE BONDS, SERIES
         2007 (DIGITTRON TECHNOLOGIES, INC. PROJECT) $1,500,000.

         Mayor Meyers stated the Council will conduct a public hearing regarding Resolution No.
         1434, adopted on December 13, 2004, expressing the City‟s intent to issue these bonds.
         The following action of the Governing Body is required for issuance of the bonds,
         commonly known as Industrial Revenue Bonds, in the amount of $1,500,000 for the
         benefit of DigitTron Technologies, Incorporated.

         Councilmember Pflumm, seconded by Councilmember Goode, moved to conduct a
         public hearing to consider the issuance of the federally taxable private activity revenue
         bonds, Series 2007 (DigitTron Technologies, Inc. project) $1,500,000 and grant the tax
         exemption. The motion carried 8-0.

         Councilmember Goode, seconded by Councilmember Sawyer, moved to conclude the
         public hearing to consider the issuance of the federally taxable private activity revenue
         bonds, Series 2007 (DigitTron Technologies, Inc. project) $1,500,000 and grant the tax
         exemption. The motion carried 8-0.

         Councilmember Sawyer, seconded by Councilmember Goode, moved to pass an
         ordinance authorizing the issuance of the federally taxable private activity revenue bonds,
         Series 2007 (DigitTron Technologies, Inc. project) $1,500,000 and grant the tax
         exemption. The motion carried 8-0. Having passed, Ordinance 2859 was assigned.

10.      SMOKING TASK FORCE REPORT.

         Councilmember Straub stated he would like to make a motion to enact the Overland Park
         smoking ordinance with two exceptions. He stated he would like to take out the open
         burning and make it clear that an in-home business would not be affected if someone
         owned one, because those were the two things that came up in their last discussion.

         Mayor Meyers questioned Councilmember Straub‟s motion at this time and stated the
         smoking ordinance discussion does not come up until Item 10 on tonight‟s agenda.

         Councilmember Straub stated he merely wanted to put the motion out there at this time if
         that is okay.
PAGE 4                                CITY COUNCIL MINUTES                     SEPTEMBER 24, 2007


         Councilmember Straub, seconded by Councilmember Pflumm, moved to approve the
         enactment of the Overland Park, Kansas smoking ordinance to include the exceptions to
         remove the open burning section and allow smoking in in-home businesses.

         No vote was taken at this time.

9.       SECOND PUBLIC HEARING: COMMUNITY DEVELOPMENT BLOCK
         GRANT (CDBG).

         Mayor Meyers stated that the Council will conduct a second and final Public Hearing to
         consider projects for the 2008 Community Development Block Grant (CDBG)
         application.

         Councilmember Sawyer, seconded by Councilmember Goode, moved to conduct a
         second public hearing to consider projects for the 2008 Community Development Block
         Grant. The motion carried 8-0.

         Planning Director Chaffee stated the Governing Body at the September 10, 2007 meeting
         held the first public hearing for projects being included in the 2008 Community
         Development Block Grant application. The purpose of the program is to provide
         assistance and infrastructure improvements for low to moderate income residents. The
         City expects to receive approximately $230,000 in fiscal year 2008.

         Planning Director Chaffee stated the projects selected to be chosen in the grant
         application are 57th Street improvements from Barton to Flint, Johnson County Housing
         Services for the Minor Home Repair Program, Johnson County Parks and Recreation
         District for scholarships for low income residents during the summer, YMCA of Greater
         Kansas City for daycare assistance, and El Centro for emergency assistance.

         Planning Director Chaffee stated the purpose of the second public hearing is to receive
         any additional input, as well as to authorize the Mayor to sign the grant application.

         Councilmember Goode, seconded by Councilmember Sawyer, moved to conclude the
         public hearing to consider projects for the 2008 Community Development Block Grant.
         The motion carried 8-0.

         Councilmember Sawyer, seconded by Councilmember Kuhn, moved to approve and
         authorize the Mayor to sign the 2008 Community Development Block Grant to include
         the projects listed in the staff report. The motion carried 8-0.

10.      SMOKING TASK FORCE REPORT.

         Mayor Meyers stated that on March 26, 2007, the City Council approved the appointment
         of a task force by the Mayor to study the issues surrounding smoke-free ordinances,
         obtain public input and to make recommendations to the Governing Body. The task force
         had their first meeting on June 20, 2007, and has met a total of four times, including one
PAGE 5                                CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


         session devoted entirely to receiving public comment. The Council has been given a
         report of information collected by the task force and the same information was also made
         available on the City's web site.

         Mayor Meyers stated before they begin the discussion, he would like to speak about the
         Shawnee Smoking Task Force who helped them in this effort by going through a process.
         He recognized the Shawnee Smoking Task Force and what they have done. He stated
         they were charged with the difficult task of making a recommendation to this Governing
         Body regarding a smoking ban. He stated because he did not want the task force to be
         biased one way or another so he purposely appointed people who represented different
         positions. He thinks when the Council approved forming the task force they wanted to
         ensure there was adequate discussion about this issue before they acted as a Governing
         Body.

         Mayor Meyers stated the individuals on the task force gave up their personal time over
         the last few months to research issues, attend meetings, and discuss and listen to different
         points of view. They heard public comment and are sure they heard some private
         comment as well.

         Mayor Meyers stated in her report to the Governing Body the facilitator the City hired to
         help the task force, said she was very impressed at the high level of civility and courtesy
         that all members exhibited, even though they felt very strongly about their own
         viewpoints. The facilitator, Carol Nalbandian, does consulting and facilitation all over
         the country with local government and for her to say this speaks volumes about this
         group of individuals.

         Mayor Meyers stated on behalf of the elected officials and citizens, he thanked the
         individuals who served on the task force. He stated he realizes this was not easy for them
         to do and they all appreciate the time spent on this very important issue.

         Mayor Meyers stated they will hear first from the Smoking Task Force this evening and
         will then move to Council discussion. He stated they have had a lot of public input on
         this issue and he will allow public comment tonight, but believes it is time for the
         Council to discuss this issue to see if there is some agreement they can come to first. He
         stated if there is some agreement among the Council, they will take public comment
         specific to the issues being considered.

         Mayor Meyers stated Mike Unterreiner and Assistant to the City Manager Singer will
         present the Smoking Task Force report and he asked the Councilmembers to hold their
         questions until after the presentation. They will then take as much time as hey need to
         ask and discuss questions.

         Mayor Meyers asked the Smoking Task Force members to stand and be recognized. He
         thanked all of them for their help, volunteerism, and dedication to this important subject.
PAGE 6                                CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


         Assistant to the City Manager Singer provided an overview of some of the things they
         will discuss this evening. They will provide background information, the process the task
         force went through, and their recommendations.

         Assistant to the City Manager Singer stated in 2005 Johnson County convened a task
         force of which many of them on the Council are familiar with the behavioral survey
         provided to all the councilmembers throughout the metropolitan area representing all
         entities in Johnson County. She stated following that in March 2007, the Shawnee City
         Council approved the appointment of the Smoking Task Force by Mayor Meyers and
         they began their meetings in June 2007.

         Assistant to the City Manager Singer introduced Mike Unterreiner, co-chairman of the
         Shawnee Smoking Task Force.

         MIKE UNTERREINER, 31820 W. 115th Street, Co-Chairman of the Shawnee Smoking
         Task Force. He stated they will basically go over the objectives of the task force.

                1.       Examined the issues surrounding smoke free ordinances.
                2.       Obtained input from the general public and held a public meeting on
                         August 15, 2007.
                3.       Developed recommendations for the Shawnee City Council to consider.

         MIKE UNTERREINER stated before they started their meetings and began their
         research, they established ground rules as an organized meeting. He stated they all
         received research assignments and were asked to provide personal statements as to why
         they wanted the appointment to this task force.

         MIKE UNTERREINER stated the research results were a value-based decision. He
         stated they were not there to vote for or against the ban, but to merely gain information to
         help the City Council come to a decision. Their four themes included:

                        Public Health
                        Economic Impact
                        Impact on Shawnee
                        Government Involvement

         Councilmember Pflumm asked what the task force came up with as far as the impact to
         the public of Shawnee.

         MIKE UNTERREINER stated that information is included in the packet.

         MIKE UNTERREINER continued with the recommendations. He stated the unanimous
         decisions from the task force were for:

                        Hotel Exemptions
                        Tobacco Shops
PAGE 7                                 CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


                       Outdoor Patios

         MIKE UNTERREINER stated these were if the smoking ban were to be passed.

         MIKE UNTERREINER stated the Majority basically dealt with Class A clubs, having a
         grandfather clause, or based on a food percentage of food being 40% and alcohol being
         60% sold in the establishment.

         Councilmember Pflumm asked about Class A clubs and if those are not-for-profit.

         MIKE UNTERREINER replied that a Class A club would be things like the VFW hall
         and fraternal organizations.

         Councilmember Pflumm stated he wanted to clarify they are not talking about for profit
         industries that has a Class A distinction and asked if there is such a thing.

         Assistant City Attorney Rainey stated a Class A club is owned or leased and operated as a
         bona fide non-profit social, fraternal, or war veteran‟s club, as determined by the director.
         He stated the Class B clubs, under the Kansas statutory definition, means the premises
         operated for profit by a corporation, partnership, or individual to which members of such
         club may resort for the consumption of food, alcohol beverages, and entertainment.

         Councilmember Pflumm stated he just wanted to get a clear distinction. He stated
         basically Class B is for profit and Class A is not-for-profit.

         Councilmember Sandifer asked about the Knights of Columbus.

         City Manager Gonzales explained the Knights of Columbus are CMB (Cereal Malt
         Beverage) and does not fall under Class A or Class B. She stated Class A and Class B
         are only related to alcoholic beverage sales.

         MIKE UNTERREINER stated there was a No Majority, as far as doing nothing or
         passing a total ban. He stated they were split evenly as far as smokers, non-smokers, and
         for and against a ban, so it speaks for itself.

         Assistant to the City Manager Singer stated she would clarify that there was a mistake in
         the packet that states it was unanimous that the Council pass a smoking ban, but would
         have been better stated, if a smoking ban is to be passed, the Task Force recommends the
         following exemptions. She stated with regard to Recommendation #6, the exception for
         certain drinking establishments at a 40/60 percentage, for clarification purposes when
         calculating those things it is important to do food and beverage that is served on their
         premises, so it would eliminate any catering they do outside of the business. She stated
         another section would need to be added for the requirement for signage and if someone
         were to allow smoking in their establishment, it would have to be properly signed and
         vice versa if smoking is prohibited.
PAGE 8                                CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


         Councilmember Pflumm asked if the task force did any research as far as the number of
         establishments in Shawnee that would be affected by that ordinance.

         City Manager Gonzales replied the numbers they have from the Department of Revenue
         really are not numbers designed for this purpose. She stated it gave them a general idea.
         She stated generally they believe there would be probably 15 to 20 establishments under
         the 40/60 percentage and they looked at lower percentages of 35% or 30% and it then
         falls down to 10 to 15 establishments.

         Councilmember Straub asked City Manager Gonzales if she could provide the names of
         those establishments.

         City Manager Gonzales replied Finance Director Kidney knows who they are, but there
         are issues of confidentiality with the information they get from the Department of
         Revenue. She stated the numbers from the Department of Revenue are really not
         designed for this purpose.

         Councilmember Pflumm stated they are not asking for numbers, but for the
         establishments that might be affected by some type of a ban.

         City Manager Gonzales explained that part of the confidentiality requirements related to
         the sales tax information the City receives, is that they can not impart the specific
         establishments and the amounts of revenue.

         Councilmember Pflumm stated they are not asking for the amounts. He stated City
         Manager Gonzales is saying they can not divulge a name based on some percentage.

         City Manager Gonzales stated that is generally correct. She asked Finance Director
         Kidney if he had any further clarification.

         Finance Director Kidney stated he spoke with Steven Brunken today, who is in charge of
         the Department of Revenue over this. He stated if a councilmember asked him about a
         specific business, Steve thought he should probably research it first with the City
         Attorney. He stated, to be honest, he has not researched that information.

         City Manager Gonzales stated as the staff looked into it more, it is really a policy
         decision of the percentage and whether or not that is the direction that the Council would
         want to hit; what specific establishments are impacted by that or not. She stated they
         really did not feel like whether specific establishments were effected and others were not
         was really a relative issue in terms if it is just a policy issue on whether that percentage
         approach is something the Council would like to consider.

         Finance Director Kidney stated he would also say that he gets a report from everyone‟s
         retail sales. He also gets a report from the liquor taxes which are submitted. He stated
         the report is not designed at all to combine those two reports and get a percentage. He
         stated he has not looked into it long enough to really know. He stated if he gets a January
PAGE 9                                 CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


         remittance for liquor sales, he is not sure he can really go back and say that is for January
         or December business, whereas if he goes to the retail sales tax, he can go back and say
         that is „that much‟.

         Finance Director Kidney stated if he is taking those two months and trying to divide
         against each other, he could very easily skew the reports. He stated that is why the
         Department of Revenue really cautioned him about using these reports for those kinds of
         things.

         Finance Director Kidney stated generally speaking, he believes they can get a pretty good
         idea. He stated City Manager Gonzales mentioned earlier, for ballpark purposes, there
         were five or six that could be affected with the 40/60, but he feels he should speak further
         with City Attorney Rainey about getting into the specifics.

         Councilmember Pflumm asked how many establishments are they really looking at that
         allow smoking today in general. He asked for the total amount that are basically a bar
         and restaurant that serve alcohol. He stated he just wants to get it out in the open.

         Councilmember Kuhn stated 56% was the number provided in the packet.

         Councilmember Pflumm asked if there are 56 people in Shawnee that serve alcohol.

         Councilmember Kuhn clarified that 56% of the establishments in the City are currently
         non-smoking.

         Councilmember Pflumm stated that will include McDonalds and places similar, but he is
         talking about actual bar/restaurants in the City of Shawnee.

         Finance Director Kidney replied there were 40 businesses that remitted retail over-the-
         counter liquor sales, but of that amount there is no way he could know which ones allow
         smoking or not.

         Assistant City Manager Charlesworth provided the list for drinking, catering, and private
         club establishments from the State of Kansas.

         Finance Director Kidney stated that list may not necessarily be on the reports he has,
         depending on where they are located. He stated they may not even submit taxes in
         Shawnee.

         Councilmember Straub stated City Manager Gonzales said that of those 40, the 40/60 will
         knock out 25. He stated City Manager Gonzales said there will be about 10 to 15.

         City Manager Gonzales stated there would be 10 to 15 that would be allowed to remain
         exempt.

         Councilmember Straub asked who regulates that and if someone can fudge.
PAGE 10                             CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007




      City Manager Gonzales stated Salina is a city that has actually adopted this type of
      method.

      Assistant to the City Manager Singer explained that Salina, Kansas does a 30/70 percent
      approach. She stated in Salina someone would establish themselves as a bar business and
      fill out an application which gives them a waiver that talks about things they have to do
      in order to become a bar. She stated in addition, they have to sign an affidavit stating that
      they meet the 30/70 threshold. She stated the city does not actively enforce it and it is
      done on a complaint basis. If there is an inquiry or some sort of a problem, the city will
      go out at that point and do an audit.

      Councilmember Straub stated there is really no way of anyone checking up on it and
      someone could say they are doing it and could really be 50/50 and no one would ever
      know.

      Assistant to the City Manager Singer stated if there was an issue or someone suspected
      that . . .

      Councilmember Straub interjected and asked how would one person know that; how
      would the individual know that, because basically it is on the honor system of the bar
      owner.

      City Manager Gonzales stated if someone made a complaint, the city could do an audit.

      Councilmember Straub asked who would make the complaint.

      City Manager Gonzales answered a patron.

      Councilmember Straub asked how patrons would know.

      City Manager Gonzales replied if a patron thought the place should not be allowing
      smoking, they could make a complaint to the city and the establishment has signed the
      form to allow the city to get the information they need from the State in order to verify.

      Councilmember Straub stated it is basically an honor system, unless someone made a
      complaint.

      Councilmember Kuhn stated when Councilmember Pflumm made the comment earlier as
      to how many of them there are, or who are those persons, her question would be what
      difference does it make what particular restaurant or bar they are talking about. She
      stated she would personally feel much more comfortable in not deciding whether or not
      she is in favor of a new ordinance, based on whether or not it helps someone in particular
      or hurts someone in particular, not whether or not she has a family member that goes to
      that particular establishment or whether or not she goes to that particular establishment,
      or whether or not the ordinance is the right thing for the City as a whole. She stated she
PAGE 11                            CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      is not quite sure what benefit it would be for the Council to kick particular ones and
      shape their ordinance around it to help only specific places.

      Councilmember Pflumm stated if they look at the list of 40 establishments, there are
      people in there like caterers or the banquet room. He stated he would imagine they
      would not fall under those percentages, but they are not an every day establishment
      where someone would walk in on a regular basis. He stated that is a banquet room where
      they hold meetings. He stated in effect, probably no establishment that may not already
      have a smoking ordinance may be affected on that whole list; there might not be any. He
      stated he is thinking there might be Chili‟s, Friday‟s, and Ruby Tuesdays. He stated
      those might be the only three, realistically, that are not some other type of establishment
      besides places like Johnny C‟s Pizza. He stated realistically, they have done nothing.

      Councilmember Kuhn stated Paulo and Bill‟s, Renee Kelly‟s, Margarita‟s, The Peanut,
      and Pine and Bamboo are all on that list.

      Councilmember Pflumm stated he knows they are on the list, but does not think they are
      going to be effected. He stated there are 40 on the list and City Manager Gonzales said
      there are only 10 to 15 that would be affected and he is sure they can pick out Johnny C‟s
      Pizza and ten of those.

      Councilmember Sawyer stated he does not believe that is what they said.

      Councilmember Kuhn stated she believes City Manager Gonzales said there are 10 to 15
      places in the entire city that would fall under the 30% and not 10 to 15 on that list. She
      stated that particular list was purely the list received from people who had filed their tax
      information.

      Assistant City Manager Charlesworth stated the list came from the Kansas Department of
      Revenue‟s website.

      Councilmember Straub asked how the Johnson County study came out.

      Assistant to the City Manager Singer replied that Johnson County formed a task force
      back in 2005.

      Councilmember Straub stated the City of Shawnee participated financially. He asked if
      that is correct.

      Assistant to the City Manager Singer replied all of the cities contributed some money to
      perform that study. She stated it was a survey done by the ETC Institute.

      Councilmember Straub asked ballpark if that study of the smoking ordinance was or was
      not in favor of a smoking ordinance.
PAGE 12                             CITY COUNCIL MINUTES                        SEPTEMBER 24, 2007


      Assistant to the City Manager Singer stated some of the questions they asked regarding
      restaurants, a number of people who responded to the survey said they would frequent
      restaurants more if they were non-smoking.

      Councilmember Straub stated he thought it was overwhelmingly in favor of the
      ordinance, from what he remembers.

      Assistant to the City Manager Singer stated she has the exact numbers.

      Councilmember Straub stated he finds it strange that Shawnee‟s task force, who probably
      did a great job, but thinks a lot of whom came in with a preconceived idea already or
      already an agenda of personal feelings. He stated the city has a couple thousand residents
      who signed a petition who wanted the ordinance to come into effect. He stated for the
      task force to not even mention it, as they did not bring up the Johnson County study or
      the 2,000 signatures and was never discussed, they said they have to weigh this out and
      feels they made their own personal decisions. He stated he thinks the task force did a
      great job, but does not think that is what they were there to do.

      Assistant to the City Manager Singer stated the petition is included in the packet. She
      stated the task force looked at it and received it at the public meeting.

      Councilmember Straub stated he did not see it even mentioned in the recommendations
      or the conclusion of the task force‟s presentation. He asked if he missed something.

      City Manager Gonzales stated that information was in the background material that the
      task force used to create the recommendations and conclusions.

      Councilmember Straub stated he has probably received 50 emails today in favor of the
      Overland Park ordinance and that is why he made the motion right up front, because he
      wanted to get it out there. He stated he has seconded it once and made the motion once
      and feels they should step up to the plate, just like Steve Rose said in his editorial, and the
      majority of Johnson County and the majority of Shawnee, he believes, wants a smoking
      ordinance and it is about time they actually listened to what the City wants and give it to
      them.

      Councilmember Kuhn stated she would only add that since she and Councilmember
      Straub share the same constituents, she received most of those same emails and had the
      opportunity before attending this evening‟s meeting to speak on the phone with three of
      the people who sent her an email who said they would support the Overland Park ban
      with no exceptions. She stated one of those persons was the wife of one of the task force
      members who was one of the most adamant people in favor of a ban. She stated after
      having a long conversation with this woman, the conversation was that she was really
      more interested in as much smoke-free as possible and getting something done that works
      for as many people as possible and having it on the books as the most important thing.
PAGE 13                             CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      Councilmember Kuhn stated second to that, the conversation was that this woman could
      understand why they would exempt patios, tobacco shops, and the hotel rooms at 25%,
      all of which a task force member who was adamantly in favor of She thinks when
      Councilmember Straub talks about the Johnson County survey and how important it is
      that they look at it and consider it, maybe the money this Council allowed to be spent for
      a facilitator for their task force and for the task force‟s time, should also be listened to.

      Councilmember Kuhn stated she is really bothered by someone jumping ahead of where
      they even are on the agenda to make a motion without even hearing those
      recommendations. She stated she is also bothered by not taking into consideration what
      every person in this audience, or she would gather probably 90% of the people in the
      audience, came here tonight to talk about.

      Councilmember Straub stated he appreciates Councilmember Kuhn bringing that up and
      he will tell her why he did that. He stated they were voting for a Council president a
      couple of months ago and he wanted to make a motion for another candidate, but the first
      person who was called on is the person who gets to make a motion and then it is voted on
      and if that does not go, it goes. He stated whoever the Mayor calls on first, is the one to
      put out the motion.

      Councilmember Straub stated it has been shown to him that the Mayor picks, sometimes
      and is not saying it has been done today, but thinks in the past couple of days there has
      been some discussion among councilmembers on how they are going to vote on this. He
      stated he does not know if there was, but has a feeling that there is probably a motion
      already in place to go with 35/65 and somebody probably has it written down in front of
      them and have it all typed up and ready to go and it would be read and they would vote
      on it first.

      Councilmember Straub stated he wants to vote for a smoking ban, so he would not have
      voted against that, but would not also have had the chance to speak his mind up front and
      that is why he jumped in there. He stated he apologizes if that bothered Councilmember
      Kuhn or hurt anyone else‟s feelings or bothered anyone in any way, but he will tell them
      that is why he did it.

      Mayor Meyers stated he would respond to Councilmember Straub and say that he always
      recognizes councilmembers by their hands going up or those who want recognition from
      the Mayor. He stated in that instance, they had two hands go up at the same time and it is
      his prerogative to call on the person he wants to call on to give their response and he did
      so that particular night. He stated he does not think at any other time, has there been any
      kind of a situation or instance where the Mayor has played favorites to one
      councilmember over another. He stated he would not do that and does not do that.

      Mayor Meyers stated on the night that Councilmember Straub is talking about where they
      elected a Council president, two hands were raised at the same time and he called on one
      hand.
PAGE 14                            CITY COUNCIL MINUTES                       SEPTEMBER 24, 2007


      Councilmember Straub stated he thinks they should do Robert‟s Rules.

      Mayor Meyers stated that was Robert‟s Rules.

      Councilmember Straub stated he thinks they should have all the nominations out there
      before they are knocked out and does not think the first nomination should get voted on.

      Mayor Meyers asked Councilmember Straub if he wanted to do the same thing this
      evening.

      Councilmember Straub replied if that is the way he runs it.

      Mayor Meyers stated he usually allows a councilmember to make a motion and when
      there is a second that is a motion they would vote on when it comes time for the Council
      to vote.

      Councilmember Straub stated if that is the way they do it; that is how they will do it.

      Mayor Meyers stated if Councilmember Straub wants him to allow five motions and then
      choose which one they will vote on, that would not make sense.

      Councilmember Straub stated the election of officers is not the same thing as an
      ordinance going into effect. He asked Mayor Meyers if he thought they were the same.

      Mayor Meyers replied he is just clarifying how they run meetings. The meetings have
      been properly done in the past and always will be.

      Councilmember Pflumm stated he would now say something about the makeup of the
      task force. He thanked all the people for being on the task force, but in effect when they
      pick two groups of people with opposing sides, they effectively create the situation they
      have had with the task force bringing them a recommendation that is not what 80% of the
      people in the City of Shawnee were looking for. He stated they are trying to create some
      middle ground and that is how he believes the whole task force was made up.

      Councilmember Pflumm stated he has a couple of questions for anyone on the task force.
      He asked John Hansen to come up and asked him if they really took into consideration
      the night all those people came up and talked, and he did not come here that night
      because City Manager Gonzales and Mayor Meyers recommended that the
      councilmembers not be here, but it seemed like the overwhelming majority was for a
      definite smoking ban and not 60/40 and something like, „Hey, let‟s work the percentage
      out so that we can still get all the big bars and little bitty bars to still have smoking‟.

      JOHN HANSEN, 13913 W. 73rd Street, stated the discussion around the public hearing
      was that they discussed it quite a bit. He stated they observed that a majority of the
      public seemed to be in favor of a smoking ban and did acknowledge that. He stated they
      acknowledged that there is a tremendous amount of emotion on both sides of the issue.
PAGE 15                             CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      He stated he does not recall, specifically, whether or not they are coming out with
      recommendations consistent or inconsistent with what the majority of the public wants.

      Councilmember Sawyer stated on that night, he listed to the whole meeting and asked
      Mr. Hansen, in his recollection, how many people of „the public‟ were actually from the
      City of Shawnee.

          JOHN HANSEN replied he does not have that data.

      Councilmember Sawyer stated he can answer the question for him. He stated there was
      Stephanie Sharp from Lenexa who did a great job, except she should have done it in the
      State House instead of running around to every city.

      Councilmember Pflumm stated Stephanie Sharp represents people in Shawnee.

      Councilmember Sawyer stated there was the Johnson County Health Department, which
      if they were really doing their job, they would have given the information to the Johnson
      County Commission and projected all of Johnson County instead of the cows. He stated
      there was a Johnson County Commissioner, which they passed it because she was leaving
      office.

      Councilmember Sawyer stated he asked the question, how many citizens from Shawnee
      spoke on both sides of the issue. He stated they can leave out all those people, because
      he understands where they are coming from, along with everyone in this room.

      JOHN HANSEN stated the task force did not really do a demographic breakdown of
      everyone who spoke at the public hearing.

      Councilmember Sawyer stated his fellow councilmember here likes to say, „the public‟,
      but the public, he understands, comes from all over the County. He stated that the public
      that he is concerned about and who he is elected by is the public of the City of Shawnee.

      Councilmember Pflumm stated he is the fellow councilmember that Councilmember
      Sawyer is referring to, but the 1,800 or so, as he does not know the exact number, but
      there is a lot of signatures out there, not for a 60/40 ban, but for a definite smoking ban -
      period. He stated there is an overwhelming majority and he knows all those people live
      in Shawnee, because they put down their addresses.

      Councilmember Pflumm asked Mr. Hansen if the task force took into consideration the
      survey done by the County. He asked if everyone received a copy and if they ever went
      over the percentages.

      JOHN HANSEN replied that survey came up briefly, but they did not go over it in detail.
      He stated he would point out on recommendation #7, Do Nothing, three in favor and
      eight opposed – another way of looking at that recommendation is „to do something‟ and
PAGE 16                            CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      there would be eight in favor of doing something and three would be in favor of doing
      nothing and keeping the current ordinance in place.

      JOHN HANSEN stated a lot of things the task force discussed after the public hearing
      were really centered on the fact that they all agreed that something needs to be done. He
      stated a lot of their focus was what the exemption should be and is where they spent a lot
      of time, specifically around the grandfather clause and the bar establishment exemption -
      the 60/40 exemption. He stated they talked a lot about where to draw that line and what
      is the right ratio, 40/60, 35/65, or 30/70. He stated those were hotly contested issues with
      the task force and were discussed at great extent.

      Councilmember Kuhn stated she would just add one thing, in that they have talked about
      the petition a number of times. That petition was something that led all of them on the
      Council to understand how important it was to look at a smoking ban in the City of
      Shawnee, but that petition was not signed by people making a decision on a specific
      ordinance and only asked if they would support a smoking ban. She stated the person
      signing that petition were not saying they support a smoking ban completely, or support a
      smoking ban for a percentage exemption, or support an exemption in tobacco shops or
      with regard to leaf burning – none of that was discussed in the petition.

      Councilmember Kuhn stated that while the petition has a great impact on her decision to
      support a smoking ban, she thinks the responsible thing to do was then to take the
      information they were given and turn it into something that is an actual, usable ordinance
      in the City of Shawnee. She stated in all honesty by that argument, Councilmember
      Straub‟s motion today would be against what the petition said it should be, because
      according to the conversation up here, that petition said Shawnee should have a smoking
      ban with no exceptions. She stated Councilmember Straub‟s motion has two exemptions.
      She stated she thinks it is an unreasonable argument to say that that petition is more than
      just a meter for them to know how important this issue is to their constituents.

      Councilmember Straub stated he would clarify that, because he spoke with the assistant
      attorney for Overland Park who told him they do not have open burning, so that had
      nothing to do with their city. He stated that was a ridiculous argument. He stated he told
      Overland Park‟s city attorney that they heard the people in Overland Park can not
      barbecue outside. That attorney told him that was silly and it has nothing to do with
      barbecuing. He stated he wanted to make sure that was perfectly clear.

      Councilmember Straub stated they do allow open burning in the City of Shawnee with a
      permit. He stated that is why he took that out in his motion. He stated if Councilmember
      Kuhn wants to eliminate open burning, they can bring that up on a separate issue.

      Councilmember Straub sated with regard to the in-home business, the city attorney in
      Overland Park told him they do not allow in-home businesses in Overland Park and even
      if they did, that was not part of their discussion. He stated he told the city attorney that
      that was what came up at Shawnee‟s City Council meeting. He stated both of those
      exemptions really are not exemptions from the Overland Park ordinance, but exemptions
PAGE 17                            CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      to satisfy, he believes, Councilmember Kuhn who said, „If someone‟s husband is an
      employee of them and they are smoking in their home, then he would be breaking the
      law‟. He stated he brought that up to Overland Park‟s city attorney who told him that
      was a Forest Gump thing; at least that is what he said and does not know if he meant
      „stupid is as stupid does‟. He stated that is just what he said and he is just telling them.
      He stated that is why he clarified those two exemptions.

      Councilmember Straub stated he agrees that he did not want any changes, only those to
      clarify your . . . (he stopped here in mid-sentence).

      Councilmember Pflumm stated went back to one of Councilmember Kuhn‟s earlier
      comments. He stated when the people were signing the petition, he believes they had
      available all the information that was going to go into some type of an ordinance. He
      stated maybe they did not read everything word for word, but is telling them now that
      they had information – smoking ban or no smoking ban, as there was more information
      given than that, so he believes Councilmember Kuhn is incorrect.

      Councilmember Kuhn stated on that note, she is sure that the people had any amount of
      information available to them, but in the same way the number of people who sent her an
      email today saying they want no exemptions and then had the conversation that an
      exemption for a patio or for a tobacco shop makes sense to them.

      Councilmember Kuhn stated, going back to Councilmember Straub‟s comment, she does
      not think she ever said anything about why the exemptions were there or whether they
      had to do with barbecuing. She stated her only comment was whether or not people took
      exemptions into consideration when they were signing a petition in regards to smoking.
      She stated on that note, Overland Park‟s ordinance does define private residences and not
      that they can not have an at-home business, but that it is only defined as a place of
      employment if it is a licensed childcare facility, adult daycare, or health facility.
      Otherwise, it is not defined as an at-home business, which is why they took some
      consideration for their constituents in making sure that they did not leave something out
      that they should have taken care of.

      Councilmember Sandifer stated about a month and a half ago, he was getting emails on a
      smoking ban. He stated it was kind of a blanket email coming from the petition and it
      was people that had signed the petition out of his ward. He stated he printed out a copy
      and went to their homes to talk to them about how they wanted him to vote. He stated he
      is representing the people and wanted to know where they stood and what they knew
      about what was going on with a petition. He stated the people had no idea of what the
      impact of a full ban would do, how many people it would put out of work, and the
      devastations in different ways.

      Councilmember Sandifer continued by stating that by the end of his conversations with
      these six different people, the information he received is that they want to be able to go
      into nice restaurants with their families and not have smoking. He stated he can go along
      with that.
PAGE 18                             CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007




      Councilmember Sandifer stated with regard to the percentage issue, whether it is 35/65
      and if that would work any better, that would lessen it down to probably less than they
      can count on two hands of who could actually have it and not kill the little businesses.
      He stated they have something that is perfectly legal here – it is not illegal. He stated
      they are getting it to the point where they are making criminals out of people for
      smoking. He stated in some of the ordinances they will all read out and about and
      around, if someone smokes in a company vehicle they can get a ticket and some of it is
      just getting carried away.

      Councilmember Sandifer stated if there was a percentage ordinance for the ma and pa
      operations that will not put them out of business – there are so many people. He stated if
      a lot of the people were told the names of some of these places, they probably would not
      even know where they are located, let alone frequent them in some cases. He stated he
      finds it hard to make a decision to put people out of business when they get tax dollars off
      some of it.

      Councilmember Sandifer stated if everyone really knew the impact he is having right
      now on smoking, they would understand that he wishes the whole world would become
      non-smoking, because right now his life is devastated with it. He stated he is in a pretty
      bad situation with it and still does not believe in putting some people out of business.

      Councilmember Kuhn stated they have talked an awful lot up here about the smoking
      ordinance and have received back a lot of information from people. She stated people
      continuously say they have a right to clean air and others say they have a right to smoke.
      She stated the reality of the situation is that it is not a constitutional right to smoke and
      that is not really what is being discussed. She stated the conversation continues to come
      up whether or not a business owner has the ability to run their business in a way that they
      see fit to be profitable or successful.

      Councilmember Kuhn stated they have to take into consideration a balance, as
      councilmembers, of the health and well being of their constituents in that same way. She
      stated some of the balance that she thinks came from the recommendations of the task
      force is the ability to differentiate between a place where someone might take their family
      for dinner and a place where an adult would go for a beverage in the evening.

      Councilmember Kuhn stated the other question that comes up, is whether or not the
      employees are impacted by it. She stated a lot of the times the question for her kept
      coming up about a son or daughter working in that establishment. She stated if they are
      talking about a place where the majority of their business is coming from food service,
      then there is a good likelihood there are 16, 17, and 18 year old kids working there as a
      waiter, waitress, or busboy. She thinks looking at what they received from the task force,
      there was some ability to balance both those independent business owner‟s rights and the
      rights of the rest of the people to take their kids to a place and know they are safe, or to
      themselves make decisions where they want to go. She stated unfortunately, the reality
      of the situation is that sometimes it is about balance.
PAGE 19                             CITY COUNCIL MINUTES                       SEPTEMBER 24, 2007




      Councilmember Kuhn stated there are a number of people who would like a 100% ban
      and a number of people who would like 100% do nothing. She stated they saw that from
      the task force. She stated the question before the Council is how they find something that
      protects the most people without hurting the most people. She thinks that listening to the
      task force and City Attorney Rainey, who actually made a Shawnee ordinance that took
      into account correct things and addressed the definitions they needed, is the right way to
      go.

      Councilmember Pflumm stated he thinks Councilmember Kuhn brought up one of the
      topics he brought up a while back about people who work in this industry. He stated
      many of them are young, single moms and he believes right now at one establishment
      there are currently three pregnant girls working. He stated they are working in smoking
      establishments and can not provide for their families the same way they can by being a
      waitress at one of these establishments, because they make a lot of money working there.
      He stated it is their livelihood and they are basically putting them and their babies at risk.
      He thinks that is one of the reasons they need a smoking ban – period. He stated that is
      his opinion.

      Councilmember Kuhn stated having been a young, but married, mother working in an
      establishment . . .

      Councilmember Pflumm interjected that he said single moms and then said there were
      three pregnant women.

      Councilmember Kuhn stated either way, being someone who had worked in one of those
      establishments as a young mother, the important question is whether or not she could
      make an additional amount of money some place else. She stated Councilmember
      Pflumm is right, in that she could probably make more money in an establishment than
      she could have at a Dillon‟s or a Price Chopper, however she does not think the
      ordinance they are looking at, or the task force even looking at somewhere between a
      40%, 35%, or even so far as a 33% difference would take that away, because she could,
      as anyone could, make just as much money at a food establishment that happened to
      serve a beverage that maybe did 68% of their numbers.

      Councilmember Kuhn She stated she does not think they would in any way be alleviating
      the opportunity to have a position in as well paying of an establishment. She stated one
      that comes to her mind would probably be Barley‟s where maybe a 35% number would
      probably become a non-smoking establishment. She stated she knows someone could
      make just as much money at a place like Barley‟s as they could, for example, as at a
      Foobars which would have probably been one of the ones that would have ended up
      being exempt. She thinks those are two that were talked about through the task force.

      Councilmember Sandifer stated he failed to mention earlier that he believes they have
      way too much government involved in their lives at the moment. He stated they probably
      ought to really watch what they do, because in some cases, like the ordeal of being in the
PAGE 20                            CITY COUNCIL MINUTES                     SEPTEMBER 24, 2007


      homes, the government needs to stay out of their homes. He stated if someone wants to
      smoke at their house and kill themselves it is their business. He stated if someone has a
      business at their home and they have employees who want to smoke at the house and kill
      themselves, that should be their right. He stated he just does not believe they should be
      stepping into people‟s houses and wanted to make that point.

      Councilmember Pflumm stated he agrees they should not be able to tell people what they
      can do in their homes, as long as it is legal. He stated most people in their homes go out
      to the garage or out on the back porch and do not smoke in their homes. He stated they
      go some place where a little kid is eating dinner or something like that, even at an
      establishment like Johnny‟s where families go and smoke right next to the kids and that
      does not bother the person smoking a bit, but then they go home and smoke in the garage
      or outside.

      Councilmember Straub stated one subject that was brought up on the economic impact
      and the conclusions/recommendations of the task force says, „There have been no studies
      done on the economic impact of smoking bans in this region. As far as we could
      determine, it may be that several of the ordinances are too recent – the research had
      been done’. He stated some people might have more knowledge than they do, saying
      some people will go out of business and some will not. He stated he knows the restaurant
      business is very volatile. He stated there are some that have been in business today and
      have been in business for 30 years and all of a sudden business slows down for any
      reason and they are out of business. He stated the fact is that most businesses close
      within the first year.

      Councilmember Straub stated they can not determine if businesses closes because of
      smoking and they need to know the research. He stated even the Shawnee Task Force
      could not come up with that information and they have done a lot of research and have
      spent hours and hours of their own personal time on doing that type of research. He
      stated he finds it hard to say they can‟t (he stopped here in mid sentence).

      Councilmember Straub asked with the splits of 60/30 or 60/40 or 70/30 or 33/77 – who
      will regulate that. He stated again, no one is unless someone makes a complaint and then
      a city employee will have to go out and get the information or they will have to send the
      information in and verify it is correct. He stated he is not sure if it will be through the
      State or if that means 60/40 for the year, or 60/40 for the day, or 60/40 for the month. He
      asked what are the percentages and how often is it regulated. He asked how much time
      they will put into it if an individual makes a complaint in one establishment every three
      days. He asked if that regulates that they have to look into it every three days. He stated
      he thinks they are opening up a can of worms.

      Councilmember Straub stated he thinks the people in Overland Park figured out that
      something like that will bring on more government and more analyzing. He stated they
      should just make it if there is a business, they do not smoke in it. He stated people can
      smoke as much as they want in their homes. He stated if someone has children or are
      pregnant and that is what they want to do, then they can go right ahead and do it, but
PAGE 21                            CITY COUNCIL MINUTES                     SEPTEMBER 24, 2007


      when they have employees that are pregnant – yes, they could go get a job somewhere
      else at a Dillon‟s or Price Chopper and make $8.00 or $10.00 an hour, whereas a waitress
      is making $30.00 or $40.00 a hour, or whatever they are.

      Councilmember Straub stated it is not easy to change a job here and go somewhere else.
      He stated everyone says they can just go work somewhere else. He stated even educated
      people know – Sprint laid off thousands of people and these are very educated people and
      they just can not go out and find another job somewhere. He stated just because someone
      is a waitress or bartender, does not mean they can go find a job next week. He stated that
      is the same for busboys or cooks. He stated it is not as easy as people make it sound.

      Councilmember Straub stated as far as the business owners are concerned, they need to
      look out for their employees and not just for themselves. He stated he is looking out for
      not only the majority of Shawnee that is part of that Johnson County Task Force that said
      80%, he believes it was 80-some percent, said they wanted a smoking ordinance into
      effect. He stated the majority of Tony Lang‟s people who have come up and did the
      signatures and all the emails he got were well over in favor of an ordinance like Overland
      Park. He stated if someone does not have the guts, like Steve Rose said, and to just make
      a stand and just do it.

      Mayor Meyers asked Assistant to the City Manager Singer to clarify the percentage and
      answer some of the questions that Councilmember Straub does not understand, as far as
      the percentage – whatever percentage if it was an exemption and what that would be
      based on, as far as measurement of time.

      Assistant to the City Manager Singer explained the staff has talked about how that would
      work and laid it all out in an administrative policy. She stated in talking to Salina and
      examining how they do things here, it would be based on the date of this application. She
      stated it would go the previous 12 month period and that is how they would base their
      analysis.

      Councilmember Straub asked if it took effect in January 2nd and they had a complaint on
      January 10th, they would have to go back and give records.

      Assistant to the City Manager Singer stated they would look at the previous 12 months to
      see how it averages, because obviously month to month . . .

      Councilmember Straub interjected and asked what would happen if they did not keep
      records on exactly how much „this was‟ and how much „that was‟.

      Assistant to the City Manager Singer replied those numbers are remitted to the State, so it
      would be a combination of looking at . . .

      Councilmember Straub interjected by stating that Finance Director Kidney said they
      could not just take those numbers and make those work because that is not the way they
      were presented. He asked if soda is food or considered a beverage. He asked if orange
PAGE 22                             CITY COUNCIL MINUTES                       SEPTEMBER 24, 2007


      juice is food or when it is a screwdriver, does it make it an alcoholic drink. He stated
      when a restaurateur buys all the mixes; they are considered a food item.

      Assistant to the City Manager Singer stated when they do an actual sale from the
      restaurant to the customer it is considered a liquor tax, so it is taxed under the liquor tax.
      She stated they log all those numbers separately and have their retail sales and then their
      liquor sales.

      Councilmember Straub stated with the numbers that Finance Director Kidney has, he
      could look at it and tell them right off the bat how much they are doing.

      Assistant to the City Manager Singer stated given the amount of time they had to prepare
      those numbers, the numbers that he had readily available, and a person could not
      determine accurately in order for them to provide accurate information. She stated the
      staff and task force did not feel comfortable providing those definite numbers, based on
      „this many‟ businesses would fall under 30% or 35% or 40%; there was not enough time
      to do thorough research.

      Councilmember Straub asked Assistant to the City Manager Singer who will be doing all
      of that research.

      Assistant to the City Manager Singer replied it would be based upon how many
      businesses came in and filled out the form saying they wanted to establish themselves as
      a bar . . .

      Councilmember Straub interjected and stated 15 or 10 to 15 is what he thinks the number
      was.

      City Manager Gonzales stated they would not do the research initially, but if a complaint
      was filed, and they have not made a decision internally or procedurally how that would
      happen, they would obtain that information from the business and verify it with the State;
      there would be some work involved.

      Councilmember Straub asked if the City would pay for it, or would it be a City function.

      City Manager Gonzales replied it would be a function of some City staff; Finance
      Director Kidney‟s staff or Assistant to the City Manager Singer – whatever staff they
      determined to be most appropriate to track it.

      Councilmember Straub asked whenever they make a complaint, would they do the
      research and go back 12 months. He stated if they made a complaint this month and then
      a month later decided to make another complaint, they would have to go back and do a
      whole other thing over again, so they could be doing it many times over.

      City Manager Gonzales stated Salina had many complaints that they had to audit with
      their ordinance.
PAGE 23                            CITY COUNCIL MINUTES                     SEPTEMBER 24, 2007




      Assistant to the City Manager Singer stated in her conversations with Salina, they said it
      has been pretty effective.

      Councilmember Kuhn stated Councilmember Straub made a motion that they should
      approve the Overland Park ordinance. She stated her question to Councilmember Straub
      is since that is what is on the table and they have to vote on it, can he go through it and
      tell her what about the Overland Park ordinance is better or what they should enact,
      versus the one that City Attorney Rainey drew up for the Council. She stated she would
      like Councilmember Straub to tell her why he favors the Overland Park ordinance over
      the Shawnee ordinance.

      Councilmember Straub stated he can give her a copy of the Overland Park ordinance and
      does not know if she has had a chance to look it over, because they have voted on it twice
      already, so hopefully she has had a chance to look it over. He asked if she has had a
      chance to look it over.

      Councilmember Kuhn replied that actually she read it and part of why she voted no in the
      past was because she had not been given the opportunity, but does not think that was her
      question. She thinks her question was very valid and asked Councilmember Straub if he
      can just tell her what the Overland Park ordinance has in it that he feels would be of more
      benefit to the City of Shawnee, than the proposed ordinance that City Attorney Rainey
      drafted for them. She stated she would like to know the specifics and why she would
      pick one over the other.

      Councilmember Straub replied he does not think there should be smoking in public
      buildings.

      Councilmember Kuhn stated her question is, according to the ordinance that City
      Attorney Rainey gave the Council, there are no exemptions and the task force went in and
      named a number of possible exemptions. She stated the City of Shawnee‟s proposed
      ordinance, without exemptions, is actually significantly stricter than the Overland Park
      ordinance that is in existence where there is already an exemption for tobacco shops and
      patios. She stated her question is, Councilmember Straub has made a motion that the
      Council adopt the Overland Park ordinance and she is in favor of the Shawnee ordinance
      and thinks it addresses some of the questions that came up before as to the definitions of
      an at-home business, to outdoor patios, as to the definition of a drinking establishment
      and thinks Shawnee‟s ordinance has done a better job of defining things for the City of
      Shawnee and it is still a ban, but Councilmember Straub has made a motion to accept the
      Overland Park ordinance.

      Councilmember Kuhn asked Councilmember Straub again what specific portions of the
      Overland Park ordinance are better for the City of Shawnee and protect their citizens
      more, than enacting the Shawnee ordinance.
PAGE 24                            CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      Councilmember Pflumm asked Councilmember Kuhn                    why    she   would    ask
      Councilmember Straub that and not the City‟s legal staff.

      Councilmember Kuhn replied because Councilmember Straub made the motion to adopt
      the Overland Park ordinance. She stated her city attorney said not to adopt the Overland
      Park ordinance and adopt the one he just drafted for the Council that she buys off on.

      Councilmember Pflumm stated then City Attorney Rainey should explain why.

      Councilmember Kuhn stated that is a very valid question. She stated her answer and why
      she did not address that question to the City Attorney Rainey is because she did address it
      to him; she went to him when the proposed Overland Park ordinance came before the
      Council twice and told him her questions and he expressed his concerns and went back
      and drafted an ordinance for Shawnee that addresses all of those problems they might
      have had and put it in the packet that was presented to the Council as the proposed
      Shawnee ordinance.

      Councilmember Kuhn stated the reason she asked Councilmember Straub that, is because
      she is lead to believe that he thinks the Overland Park ordinance is in some way superior
      to the one that City Attorney Rainey drafted, because that is the one he motioned for the
      Council to adopt today. She stated she wants Councilmember Straub to explain to her
      what is better about it. She stated maybe she is missing some points and there must be
      something in the City‟s . . .

      Councilmember Straub interjected that he thinks they all get Councilmember Kuhn‟s
      question.

      Councilmember Kuhn asked Councilmember Straub if she could get an answer.

      Councilmember Straub answered absolutely. He stated that is a very good question and
      just to have that answer, because he was not in Councilmember Kuhn‟s meeting with
      City Attorney Rainey and he is not an attorney, so he knows the attorneys of Overland
      Park went through [their ordinance] and he liked what he read, so that is why he made a
      motion. He stated if City Attorney Rainey, which he would really really really appreciate
      Councilmember Kuhn not explaining his answers to it, is why he made the modifications,
      just like he got the chance to talk to Councilmember Kuhn about it, because he did not
      get a chance to talk to him about it.

      City Attorney Rainey stated they are not going to tell the Council which one is better or
      which one they should adopt. He stated he would say when they talk about these things,
      for one, procedural editing matters that are not substantive and he thinks they can do a
      better job in some of those ways maybe than Overland Park did in theirs. He stated
      Overland Park allowed, but the big difference as far as the Council is concerned,
      Overland Park has three exceptions, as mentioned by Councilmember Kuhn.
PAGE 25                             CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      City Attorney Rainey stated the first exception is private residents. Secondly, there are
      the outdoor seating areas in restaurants and bars. Thirdly, there are existing tobacco
      shops. He stated those are the only exceptions in Overland Park‟s ordinance and is what
      he believes Councilmember Kuhn‟s just said.

      Councilmember Kuhn stated the other thing she would say on that is that she thinks all
      councilmembers have equal opportunity to discuss concerns and questions they have with
      City Attorney Rainey. She stated it is not like he specifically called him up and she asked
      him questions after the two times in which Councilmember Straub and Councilmember
      Pflumm motioned to approve the Overland Park ordinance and they discussed it in depth
      about why the rest of the Council felt concern about that and whether they had questions
      in regards to certain things that were in that ordinance. She stated she then went back to
      City Attorney Rainey and educated herself on those concerns, which is exactly what she
      is asking tonight.

      Councilmember Kuhn stated it is not a question of whether or not they need to enact a
      ban, as she is much more comfortable with the Shawnee ban, because she believes it was
      written with Shawnee in mind and believes it is a stronger, more structured ordinance.
      She stated she thinks the question is whether or not they would like to have exemptions
      or not. She stated Overland Park has three exemptions and Shawnee‟s ordinance has
      zero, so their ordinance would have to be enacted with additional exemptions.

      Councilmember Kuhn stated this has nothing to do with attorneys, because attorneys did
      not motion to approve the Overland Park ordinance, Councilmember Straub did. She
      asked Councilmember Straub to tell her what in that ordinance is better than the one that
      was enacted for Shawnee.

      Mayor Meyers stated he thinks Councilmember Straub‟s actually already answered that
      question.

      Councilmember Straub stated he did answer the question and actually asked City
      Attorney Rainey to answer the same question he did to Councilmember Kuhn privately,
      what changes he made, and why did he feel they made those changes.

      Assistant City Attorney Rainey stated they have gone through all of this over a long
      period of time, so it is hard for any one of them to identify them. He stated the first one
      is that there is no definition that prohibits smoking and just in looking at it, after the
      question was asked this evening, smoking is prohibited in bars and restaurants and there
      is no definition for what a bar is. He stated they probably all know what a bar is when
      they walk into it, but there are private clubs and drinking establishments. He stated he
      does not know what a bar is in this particular ordinance and it does not state what it is.

      Assistant City Attorney Rainey stated the last one, the outdoor seating area, is something
      he read several times and is still not sure exactly what it is and what is not prohibited. He
      stated the ordinance applies to an enclosed public place or an enclosed place of
      employment. He stated an outdoor seating area is neither, but it states, This prohibition
PAGE 26                             CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      shall not apply to the following any portion of the public right-of-way that may be within
      10 feet of said entrance and the outdoor seating area of a restaurant or drinking
      establishment. He stated the prohibition does not apply to that anyway, because it is not
      an indoor area that is enclosed.

      Assistant City Attorney Rainey stated the last sentence reads, With respect to said
      outdoor seating areas, smoking may be allowed only if reasonable efforts are made to
      minimize the chance of smoking affecting the inside occupants. He stated it has not
      prohibited it, but in the last sentence it states that it may be allowed. He stated those are
      some minor things he noticed.

      Assistant City Attorney Rainey stated the other thing he noticed was in the last section
      where smoking is not regulated. He stated somewhere it talks about a place of
      employment and refers to an employer‟s obligation to take reasonable acts necessary, but
      does not define those reasonable acts. He stated he had a concern with that language. He
      stated with the particular ordinance, there was some reference earlier to open burning.
      He stated that particular ordinance, POC 2632 that was adopted by the City of Overland
      Park, did have in Section 8 discussion that amended the open burning definition. He
      stated he does not particularly know why that is in there, as he is not familiar enough with
      their code to know where their open burning provisions may be.

      Assistant City Attorney Rainey stated he had a couple other concerns. He stated it
      defined a place of employment to include hotel or motel sleeping rooms. He stated he
      understands there may be maids that go in and clean a room, but does not know if they
      are being used for sleeping while the maids are in there cleaning it, so he did not know
      why that was included within a place of employment.

      Assistant City Attorney Rainey stated those are some of the areas that he had some
      concerns on and there may be additional ones. He stated the definitions were a problem.
      He stated the City used a consulting firm who came in and tried to help staff with their
      code codification. He stated one of the main reasons for doing that was to clean up their
      code and have a more uniform way of addressing things. He stated the proposed
      ordinance that was given to the Council, based on the committee‟s recommendations, has
      a uniform penalty provision. He stated the penalty provision in the Overland Park code is
      obviously not one that is in accordance with what they would like, or have been trying to
      use.

      Councilmember Straub asked Assistant City Attorney Rainey if he is saying that the
      ordinance they have written, because he is not an attorney, is basically the same thing as
      Overland Park‟s, but clarified many things on exactly what definitions are.

      Assistant City Attorney Rainey replied that they tried to be more specific.

      Councilmember Straub asked if it does not make the ordinance any more lax or any more
      stringent than if they do not do any other recommendations. He asked if it is any tighter.
PAGE 27                            CITY COUNCIL MINUTES                     SEPTEMBER 24, 2007


      Assistant City Attorney Rainey replied he believes it is clearer and believes there are
      more definitions than what they prepared. He stated he was not the only one who
      prepared it.

      Councilmember Straub asked if any bar, any establishment still would not be able to have
      smoking.

      Assistant to the City Manager Singer stated the ordinance that was included in the packet
      without any of the recommendations, is actually much more stringent than the Overland
      Park ordinance, because Overland Park‟s ordinance actually does have exemptions in it.
      She stated to answer Councilmember Straub‟s question, yes, it is more defined according
      to what they would need as far as definitions go in Shawnee, but it is more stringent and
      would be much stricter.

      Assistant City Attorney Rainey stated he knows one more area was discussed quite a bit,
      that being the penalty for violation of an ordinance. He stated there is a penalty to be
      applied to a person having control of a public place of employment. He stated that
      actually makes it a crime, if the person having control of the public place of employment
      is there when there is a violation and Section 11.52.180 defines obligations of the
      proprietor‟s owners and managers and is actually a crime if they don‟t proceed through
      and adhere to this. He read, necessary steps to take all reasonable actions to prevent
      smoking violations in this ordinance. He stated he does not know how a prosecutor
      would approve that without some difficulty. He stated they omitted that language and
      generally had a sense, he thinks, from the staff‟s standpoint that they did not want to
      impose violations as a public offense upon the owners of the establishments.

      Councilmember Pflumm stated he is sure both ordinances are good. He stated the only
      reason he believes they are talking about the Overland Park ordinance, is that he had
      printed out Overland Park‟s ordinance and Olathe‟s ordinance, along with a few others.
      He stated he brought up Overland Park‟s ordinance one night when they were going to be
      talking about smoking. He stated he was little disturbed by what they were talking about
      and what they were going to be doing, so he made a motion to go ahead with the
      Overland Park ordinance, the way it was written.

      Councilmember Pflumm stated that City Attorney Rainey told him after that meeting,
      that basically with the ordinances that are out there, he picked the best one with Overland
      Park‟s. He stated maybe it is not perfect. He stated they can talk about whatever
      ordinances they want to talk about, but they are basically similar in nature and maybe the
      Shawnee ordinance is better.

      Councilmember Pflumm stated if it is okay with Councilmember Kuhn, maybe
      Councilmember Straub should amend his motion to use the Shawnee ordinance with the
      three exceptions from the Overland Park ordinance; the tobacco shops and patios. He
      does not believe it said anything about hotels.
PAGE 28                            CITY COUNCIL MINUTES                     SEPTEMBER 24, 2007


      Assistant City Attorney Rainey stated actually in the place of employment definition in
      the Overland Park ordinance, it defines hotel and motel sleeping rooms as a place of
      employment, and then prohibits smoking in places of employment. He stated he
      assumes, because they include it in the definitions, that it is prohibited in hotel rooms.

      Councilmember Pflumm asked if is has an exemption for hotel rooms.

      Assistant City Attorney Rainey answered that it does not have an exemption for hotel
      rooms.

      Councilmember Pflumm asked for the three exemptions.

      Assistant City Attorney Rainey replied they are private residences not serving as enclosed
      places of employment, existing retail establishments whose primary business is the sale
      of tobacco products, and new retail establishments whose primary business is the sale of
      tobacco products located in a stand alone building, so there is only two he sees in the
      ordinance.

      Councilmember Goode asked Tony Lang to come up, so he could ask him a couple
      questions. He asked Mr. Lang after carrying these petitions, how stringent should these
      ordinances be. He asked Mr. Lang if in his mind, after listening to what they have heard
      here tonight, if they should pass the Overland Park ordinance or the Shawnee ordinance,
      or does he even have any idea after consulting with all these people.

      TONY LANG, 11914 W. 59th Terrace, stated first of all, he also went down and
      interviewed the staff at the City of Lawrence, staff at the City of Olathe, and councilmen
      and the City Manager in Overland Park. He stated he spoke with MARC people and has
      been pretty well down the horn with this, because thinks if you are going to do
      something, you have to do it right.

      TONY LANG stated the committee came up with their informal petition in reading the
      second paragraph, it shows what the people want and that is one thing. They want a
      work-free environment – the pregnant women. He corrected himself and said they want a
      smoke-free environment. He stated this is contamination. He stated the task force did
      not consider that at all and presented the Council this evening with an economic issue.
      He stated this whole thing is a health issue. He stated he does not care what anyone says
      here – it is a health issue.

      TONY LANG stated he is not a doctor; all he does is read and get input. He stated the
      people are after a health issue of any place they go into doing their personal business in
      Shawnee, be it eating, bowling, having a beer – they do not want the contaminated smoke
      and it is that simple.

      TONY LANG stated they have three petitions out there. He stated the last one was from
      the Mayor and they put the Mayor‟s signature on it. He stated the other one was to the
      task force. He stated he disagrees with Assistant City Manager Charlesworth‟s figures,
PAGE 29                            CITY COUNCIL MINUTES                     SEPTEMBER 24, 2007


      because he submitted another 90 petitions or so and does not know what happened to
      them. He stated there are more petitions than that and they are still coming in, because he
      dropped more off at City Hall the other day.

      TONY LANG stated they actually took their web page and went from soliciting
      signatures to verifying who is registered to vote. He stated to answer Councilmember
      Goode‟s question, the people want what Assistant City Manager Charlesworth says, and
      they want to go to a restaurant with no smoking. He stated they want to be able to walk
      into a restaurant and not have to go through a smoking section to get back in the corner
      some place where smoke is going and they call it the Non Smoking section. He stated
      they want to go into the hardware store. He stated they want to go into the grocery store.

      TONY LANG stated what Councilmember Straub did not take into consideration the last
      time he was here, was the people want to be able to go to concerts, to Old Shawnee
      Town, and places like that and sit and enjoy the concert like everyone else and not have
      someone sitting nearby blowing smoke at them. He stated Councilmember Pflumm was
      correct with what he said a few minutes ago - people usually will not smoke in their
      houses. He stated very few people smoke in their houses anymore and goes outside, but
      they will go into a restaurant and blow smoke at some kid and that is not fair.

      TONY LANG stated his concern being a Legion member, is there was no mention by the
      Task Force of the letter they received from Bob Meck who has been more active in the
      Legion than Dan Lamb ever has – the man who was at the public meeting pleading for
      the 20 people to sit down there and smoke at the Legion. He stated Mr. Lamb could
      hardly talk because he had to quit the bingo game, because the smoke was getting to him.
      He asked if anyone saw that letter that Bob Meck wrote.

      Assistant to the City Manager Singer replied it was distributed to all the task force
      members and all the councilmembers – everyone received a copy.

      TONY LANG stated evidentially they thought nothing of it. He stated here is a guy that
      has been doing bingo at the American Legion for 30 years. He stated he now has to quit
      and Lamb has already quit because of the smoke. He stated the bingo people are not
      coming anymore and going elsewhere for smoke-free bingo. He stated Councilmember
      Sawyer is correct. He stated there were previous council people here that now work for
      the heart and lung people. He asked if councilmembers are trustworthy. He asked if they
      are going to call that woman a liar when she comes up here and says how bad smoke was.

      Councilmember Sawyer stated that is not what he said.

      TONY LANG stated Councilmember Sawyer was indicating that.

      Councilmember Sawyer stated that is not what he said and he is not going to get away
      with saying that. He stated he asked earlier, how many of them were Shawnee citizens.
      He stated he did not say smoking was good for a person – never did he say that and told
      Mr. Lang not to never call him a liar.
PAGE 30                            CITY COUNCIL MINUTES                     SEPTEMBER 24, 2007




      TONY LANG stated he never called him a liar. He stated he does not know how to
      answer that question, because he did not come here tonight to talk. He stated they did not
      twist 1,800 people‟s arms. He stated he walked through grocery stores with his folder to
      his chest to the employees he could talk to. He stated he never asked one person at the
      grocery store to sign anything. He stated they just saw the petition and asked if they
      could sign it. He stated he would ask them if they lived in Shawnee and if they did, they
      could sign it.

      Mayor Meyers stated for clarification purposes that neither ordinance, Shawnee‟s or
      Overland Park‟s, would regulate smoking outside in situations such as concerts.

      TONY LANG stated he knows that – that can come later.

      Councilmember Kuhn stated she thinks they have all lost quite a bit of focus on what the
      question is. She stated Councilmember Sawyer said it best a few weeks ago, that it would
      be naïve to assume that the Council would not be enacting some sort of a smoking ban.
      She stated the question before them tonight is not whether they are going to have a
      smoking ban, though she guesses in some very open way it is; it is what the right
      ordinance is.

      Councilmember Kuhn stated Mr. Lang is telling him that a number of people came up to
      him and signed a petition saying that they want a smoking ban – wonderful. She stated
      the Council‟s job now is to enact a law. She stated the question is not whether or not they
      are going to have it, but which one is the most enforceable and which one does City
      Attorney Rainey believe is defined correctly and then which one of those do they decide
      to exempt or not exempt on the task force recommendations.

      Councilmember Kuhn stated Councilmember Straub has motioned for the Overland Park
      ordinance and Councilmember Pflumm has seconded the motion. She stated there is talk
      about maybe they should change Councilmember Straub‟s mind on that and move to
      adopt the Shawnee ordinance. She stated she personally thinks they should have their
      minds looking at these things beforehand, have some idea what the benefits and problems
      with both of those ordinances are, and to know why they would support them or not. She
      stated she does not support the Overland Park ordinance being enacted; not because she
      does not support a smoking ban, but because she finds that there are some fallacies in that
      particular ordinance that she believes have been addressed and are better served for their
      constituents by the Shawnee ordinance.

      Councilmember Kuhn stated she then thinks they should discuss which particular
      exemptions are acceptable or not acceptable to the Council to allow this and they have a
      well written, legally enforceable smoking ban in the City of Shawnee, instead of
      motioning for the third time a ban that is in another city that they have talked about a
      number of times having concerns about the way it was written.
PAGE 31                             CITY COUNCIL MINUTES                       SEPTEMBER 24, 2007


      Councilmember Kuhn stated Assistant City Attorney Rainey just stood up here and talked
      about all of the fallacies, or she should really say concerns he had, in a way that we
      would be able to write them better. She stated that is a problem that they are jumping
      ahead and motioning for that ordinance again, when they have already seen problems
      with it before.

      Councilmember Pflumm stated time and time again they have provided those fallacies, as
      Councilmember Kuhn calls them that are in that ordinance and are so minor that they
      really are not a part of any issue or problem that could arrive out of this. He stated no
      one is going to pull someone over in a company car and tell them they are going to get a
      ticket, because they are in a company car smoking. He stated the things the other
      councilmembers have brought up have been ridiculous.

      Councilmember Kuhn stated Assistant City Attorney Rainey just stood up there and
      talked about the lack of definitions for an outside seating area. She stated that is a huge
      one, when patios are a potential exemption. She stated with that note, she would say that
      law in and of itself is based specifically on those little things that no one thinks are a big
      deal, right up until the criminal case gets thrown out because of some small irregularity in
      the process or whether a civil case is won or lost, based on that small little thing that was
      in the law.

      Councilmember Kuhn stated this is not a policy alone; it is an ordinance. She stated that
      means that the Council has to legally be able to enforce it and legally be able to defend it,
      so those small things are a huge deal.

      Councilmember Pflumm stated that brings back enforceability. He directed his statement
      to Councilmember Kuhn. He stated the City does not have a helmet law at the
      skateboard park because of enforceability. He stated he personally wanted a law at the
      skateboard park like they have in California. He stated Shawnee built an awesome super
      hard skateboard park and they do not have a helmet law, because they could not enforce
      it.

      Councilmember Pflumm stated they should get back to enforceability of this issue
      tonight. He stated if the Council invokes a smoking ordinance like other cities in this
      area and the United States has done, such as New York and California, and it has
      exemptions from smoking in any kind of a work place, which one will be harder to
      enforce – one that says someone can smoke if there are 40% food sales, but if there are
      less than 40% food sales people can smoke and if they have more than 40% they can not
      smoke. He asked who is to say that every bar owner has to work their own spreadsheet
      and all their own information and turn it into the City – which one will be easier to
      enforce. He asked none at all or will they have to go around and check on these people if
      someone files a complaint.

      Councilmember Kuhn stated she would say that is no different than the other ordinances
      they have enacted regarding their businesses within the City. She asked who monitors
      how many employees an at-home business has, although the City ordinance states
PAGE 32                            CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      someone can only have “X” number of employees and still be considered an at-home
      business.

      Councilmember Pflumm stated that was not his question. He asked which one would be
      easier to enforce.

      Councilmember Kuhn replied she does not think either would be easier, because unless
      someone happens to be in a business to complain about someone smoking there, then no
      one would know they were violating either ordinance. She stated it would require
      someone to complain about the violation of any ordinance, for anyone to investigate it –
      period, so she does not think it is any different.

      Councilmember Pflumm stated it is different.

      Councilmember Kuhn stated it is not enforceability of whether or not they can go in and
      make people not smoke. She stated it is a question if anything would require that they
      would defend their ordinance and have the proper definitions in place – the proper
      ordinance for it.

      Councilmember Distler stated she did want to comment on the task force, just because
      she did not vote for it, but knowing the difficulties that they went through, she was very
      impressed that they were able to come up with compromises. She stated she thinks it is
      pretty well known that she is not for a smoking ban, but is very impressed with the
      compromises and would hope that those who are for a ban would be able to try to
      implement some of those compromises.

      Councilmember Distler stated the Kansas Business Rights Association handed her some
      things they would like submitted for the record (Attached as Appendix A). She gave
      those documents to Assistant City Manager Charlesworth. She stated there are some
      studies in that material that do show the economic impact. She stated she is going to take
      a few minutes, because she wants to address several things that have been said.

      Councilmember Distler stated that she keeps hearing it is a health issue and people say it
      is a fact that secondhand smoke kills. That is not a “fact”. A fact is something that is
      supported by quantifiable evidence, so it cannot be discredited. She stated the real fact
      here is that there is credible research showing there is little or no negative health impact
      from secondhand smoke. She stated study after study, legitimate research has debunked
      the junk science used by the Anti-Tobacco lobby to promote smoking bans in
      unsuspecting communities. There are just as many studies showing there is no impact as
      there are saying there is.

      Councilmember Distler stated that an enormous German study covering 37 years, during
      which thousands of flight attendants have been followed and monitored for cancer.
      Furthermore, this is not a study based on questionnaires or opinion polls asking the public
      what it thinks of secondhand smoke, but actual case studies.
PAGE 33                            CITY COUNCIL MINUTES                     SEPTEMBER 24, 2007


      Councilmember Distler stated on May 19th, 2003, the German study concluded that,
      "The results do not support a causal relation between environmental tobacco smoke and
      tobacco related mortality. The association between exposure to environmental tobacco
      smoke and coronary heart disease and lung cancer may be considerably weaker than
      generally believed." Additionally, the British Medical Journal report concluded there
      was little to no impact.

      Councilmember Distler stated that the Surgeon General, in her August 2007 Parents
      magazine, states there is a stronger correlation between children watching TV and
      violence then there is between second hand smoke and cancer, so some councilmembers
      may want to go into people‟s homes and make sure their televisions are turned off.

      Councilmember Distler stated in court, the World Health Organization (WHO), in a court
      of law, rescinded their statement critical of secondhand smoke, admitting their data was
      flawed and their results were not statistically significant on the dangers of secondhand
      smoke.

      Councilmember Distler stated the massive UN study in 1998 on secondhand smoke found
      that is was largely a benign irritant and an unlikely cause of any major health issue other
      than perhaps for those with respiratory disease exposed to smoke over an extended time
      in poorly ventilated rooms. This same study actually found protection from lung cancer in
      children exposed to secondary smoke at home. The study by the EPA, which was such a
      travesty of science, was declared invalid and thrown out by Federal Court.

      Councilmember Distler stated that she personally contacted the American Cancer
      Society, American Heart Association, American Lung Association, EPA, CDC, and
      WHO and no one could provide her the data behind their numbers and no one could
      produce a death certificate where the primary or secondary/contributing cause of death
      was that of secondhand smoke. She questioned their credibility.

      Councilmember Distler stated that could be because the American Heart Association, the
      AMA, the American Cancer Institute, American Lung Association, etc have all accepted
      huge grants from pharmaceutical companies that make quit-smoking products (worth
      billions of dollars annually) to publish anti-smoking research without any conclusive
      results on the effects of secondhand smoke.

      Councilmember Distler stated that she and her co-workers personally looked at 20,902
      death certificates and could not find a primary or contributing cause of death as
      secondhand smoke, yet with all this medical and scientific evidence readily available to
      instruct and inform, the Anti-Tobacco lobby continues to use flawed and outright false
      information to promote smoking bans. She stated that she received more today from the
      IRC and the American Cancer Society in its cancer prevention study published in 2003.

      Councilmember Distler stated the American Cancer Society followed more than 35,000
      never smoking Californians who were married to smokers. She stated researchers
      collected data on the never smokers for 39 years from 1959 to 1998 and that data related
PAGE 34                             CITY COUNCIL MINUTES                       SEPTEMBER 24, 2007


      there were no heightened lunch cancer risk among those study subjects and in fact, show
      a slightly decreased risk of lung cancer compared to the general population of never
      smokers.

      Councilmember Distler stated that 70% of people no longer smoke and yet the increase in
      asthma is 75%, 5 million children. "If repeated often enough, a lie will become the new
      truth. Paul Joseph Goebbles, Minister of Propaganda, Nazi Germany.

      Councilmember Distler stated she finds it incredible that so many people want to base
      their facts on such dubious and misleading statistics. She stated she can only conclude
      that the instigators of the smoking ban proposal are either generally uninformed, or they
      have been intentionally selective in the erroneous information they are presenting as fact.

      Councilmember Distler stated they should go to where most of these studies are basing
      their facts on the studies of Richard Doll. She stated since so many people want to base
      their “fact” on statistics and it‟s a known fact that 98% of statistics are flawed, let‟s look
      at the benchmark studies of Richard Doll since he‟s the one most are basing their
      “dangers” on. He assumed 160 in 100,000 smokers (not secondhand smokers) developed
      lung cancer as opposed to 7 in 100,000 nonsmokers, so you have a 24 times greater risk if
      you smoke. By using the same data, you still have a 99.8% chance of not getting lung
      cancer. She stated it is the same as if you buy 25 lottery tickets instead of one; your
      chances of winning go up by 2500% and though the number sounds impressive, your
      actual chances of winning are still miniscule.

      Councilmember Distler stated it has also been noted by the industry watchdog groups,
      that general conflict of interest exists between drug companies making pharmaceutical
      and nicotine products, and the numerous health organizations endorsing smoking bans.
      She stated the largest pharmaceutical company, Johnson and Johnson, has provided
      massive brands to relevant health organizations in an amount exceeding $200 million.
      Additionally, and even more unsettling is the fact that local lawmakers also receive
      campaign support from these same special interests.

      Legitimate scientific research shows that secondhand smoke is not a health concern as
      has been claimed. She stated this issue becomes one that involves the responsibilities of
      the consumers and rights of the business owners. Consumers do not have a “right” to be
      in an establishment.        She stated the public is invited in to enjoy the
      food/drink/atmosphere, but if it is not an environment someone does not enjoy, then they
      do not go. People can eat their dinner at home and drink their alcohol at home. She
      stated people cannot take your children to a strip club and then complain about the naked
      people.

      Councilmember Distler stated the solution is not a ban on business, but for the public to
      accept responsibility for their decisions. She stated if it is not public property financed by
      taxpayers, then rights of the citizens owning private property are protected by the
      Constitution. She stated for the health of the consumer, she goes back to if someone is a
PAGE 35                            CITY COUNCIL MINUTES                     SEPTEMBER 24, 2007


      consumer, they do not have a right to be there and are invited to go there and enjoy the
      atmosphere and if they do not enjoy it, they do not go.

      Councilmember Distler stated much as been said about the need to protect the
      employee‟s health. She stated they have also heard the argument in regards to the
      workers rights. She stated that while she personally does not know of anyone who works
      a job that they did not apply and interview for, she assumes if secondhand smoke was a
      concern, they would not accept the position. Neither can she think of anyone is forced to
      work where smoking is allowed.

      Councilmember Distler stated if it is ever proven conclusively to be a health concern, the
      regulatory guidelines should come from those who are better qualified to make such
      determinations than the City Council. She stated she keeps hearing that they regulate
      everything else, but no they do not. She stated the City does have a health department
      and the State and County departments are authorized to determine health regulations.

      Councilmember Distler stated a perfect example that was brought up to her were the coal
      miners and the black lung disease. She stated that was a proven health problem and
      secondly, they did not ban coal mining, but made it safer. She stated there is obviously a
      huge difference. The city level of government does not dictate to business on the health
      and safety of the workers. So, in response to the perfect example of coal miners who
      implemented the policy for their health and safety, The General Administration of Work
      Safety, Mine Safety and Health Administration, National Institute for Occupational and
      Safety and Health, and the US Department of Labor, not the local City Council. She
      asked if banned coal mining or just made it safer?

      Councilmember Distler stated no offense to anyone sitting on the Council, but we are not
      health professionals and she does not feel comfortable dictating to people or being
      dictated to what is and is not good for health based on flawed statistical science. She
      stated if she were in charge, everyone‟s diet would consist of nothing but fresh fruits and
      vegetables, water, and tea or coffee on special occasions.

      Councilmember Distler stated she does not feel comfortable opening the door for future
      councils to dictate health policies to them, based on propaganda. She stated they approve
      building permits and the like. She stated they say not to allow lead paint and license
      alcohol. She asked if they are talking about licensing smoking or banning it? She stated
      the rationale is called reasonable expectations. People have reasonable expectations that
      buildings will not fall down around them or they will be able to exit safely during a fire.
      A person cannot reasonably expect to enter a private business that allows smoking and
      expect not to be exposed to secondhand smoke, no matter if they are customers or have
      accepted employment.

      Councilmember Distler stated if the danger claims could be proven, OSHA would not
      hesitate to implement legislation. If it‟s a proven danger, their job, as an agency of the
      United States Department of Labor, is to prevent work-related injuries, illnesses, and
      deaths by issuing and enforcing standards of workplace safety and health. She asked why
PAGE 36                             CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      they do not feel this needs to be regulated and answered because the OSHA standards say
      that the maximum safe level of nicotine exposure is 500 micrograms per cubic meter.

      Councilmember Distler stated that the measurements taken by the St. Louis Park
      Environmental Health Department in 19 restaurants that had smoking sections had a full
      range of between <1 (too low to detect) to a maximum 32.5 (and that one establishment
      was the only one above 7.5 micrograms, the other 18 were all below that). The absolute
      worst establishment, the one that was nearly 5 times worse than all the others, was still
      85% below the safe exposure limits.

      Councilmember Distler stated the National Institute of Occupational Safety and Health is
      the research agency whose purpose is to determine the major types of hazards in the
      workplace and ways of controlling them. They regulate everything down to noise level,
      so secondhand smoke is a lower risk to a person than the decibel level. Even levels of
      government as low as the Johnson County Health Department is supposed to monitor the
      health status and identify community health problems, diagnose and investigate health
      problems and health hazards in the community, develop policies and plans that support
      individual and community health efforts, enforce laws and regulations that protect health
      and ensure safety. She stated that she agrees with councilmember Sawyer that the City
      wasted nothing but time and money on the survey Johnson County sent out - the one
      regularly referred to as being done by professionals.

      Councilmember Distler stated the only thing the Johnson County survey proves, is that
      secondhand is an annoyance, not a health hazard. The only thing that is a fact is the way
      the questions were asked and even someone against the ban is going to say they prefer
      smoke-free environments.

      Councilmember Distler stated another thought to ponder, is if there any other bans or
      ordinances for health or safety that are citizen initiated. She stated most government
      mandates for health and safety are initiated by a health organization or agency and if this
      is such a health problem, why is it being initiated by citizens instead of by the health
      organizations.

      Councilmember Distler stated consumers and employees who prefer smoke-free
      environments are free to go elsewhere. She stated no one is forced to eat or work in a
      place that is not to his or her liking. She stated she does not feel comfortable dictating to
      private citizens what they can and can not do based on flawed statistical science. It is
      wise to remember the old saying, “The road to hell is paved with good intensions”.

      Councilmember Distler stated since it has yet to be proven to be a health hazard, it
      becomes an issue of civil liberties, property rights, and business rights. She stated when
      she took her oath of office, she swore to uphold the Constitution. Whereas there is
      nothing stated specifically to the rights of smokers or non-smokers, the Constitution does
      speak directly to individual liberties and private property rights. Thomas Jefferson stated,
      “History convinces me that most bad government results from too much government.”
      She has no desire to grant the government undue power and control over our personal
PAGE 37                             CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      liberties. She feels there are a number of very good reasons why this is a decision best
      left to the individual owners and their customers to decide through the power of the
      purse.

      Councilmember Distler stated that they live in a Constitutional Republic, the one we
      pledge our allegiance to before each meeting, which means we‟re a nation governed by
      the rule of law, not the rule of popular opinion. The prevailing beliefs of one group have
      no Constitutional authority to infringe on the civil rights of another, no matter how large
      their majority or how widely their accepted opinion. She stated her concern is for the
      rights of all Shawnee citizens and business owners and as public officials, they are sworn
      to protect civil liberties and not react to the latest poll numbers. She believes the best
      way to implement a smoking ban, is for the public to support those establishments that
      cater to their desires. She stated at the conclusion of the Constitutional convention
      Benjamin Franklin was asked, „what have you wrought‟ and he answered, „A republic if
      you can keep it‟, so even when it comes to something as harmless sounding as a smoking
      ban, there is no legal justification for suspending the Constitutional rights of a target
      group of individuals for the perceived betterment of others.

      Councilmember Distler stated the anti-smoking movement has a long history. One of the
      earliest proponents, Adolph Hitler, united people from across a broad social and
      economic spectrum and a groundswell of support, enabling him to enact the very first
      smoking ban. He was a devout Catholic, came from a hardworking family, he loved his
      country, and he was a twice-decorated war hero. His vision and passion energized anti-
      smoking proponents, who in turn, empowered him to pursue his popular campaign
      against “passive smoke” (a term that he had coined, and which came to define the anti-
      smoking movement. People were convinced that he really cared about them and was
      deeply concerned about their family‟s health.

      Councilmember Distler stated that some may feel we need more leadership like this and
      to carry on the fight to rid our community of “passive smoke”, but personally, she does
      not want to see them follow in the footsteps of Adolph Hitler, the original smoking ban
      proponent.

      Councilmember Distler stated that Mr. Pflumm stated previously, that 58,000 people in
      this city want this ban. While we all know that those who exaggerate their numbers and
      “facts” have the weakest argument, so let us examine that and look at reality. She stated
      they should start with the petition, as it represents less than 3% of the total population of
      the City. She stated that she has also since heard there are those who wish to have their
      names removed from the petition, because they did not realize what they were signing.
      To her, that questions the validity of even those numbers.

      Councilmember Distler asked as publicized as this entire ordeal has been, why are they
      not seeing 20,000 or 30,000 signatures on this petition if 58,000 people want it. She
      stated last but not least, of all the emails, phone calls, and letters received and probably
      because of her stance she has received more against the ban than for it, so if she is
      supposed to vote on what the majority wants, that will have to be the way she votes, but
PAGE 38                            CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      to answer Councilmember Sawyer‟s question from earlier of those who spoke publicly,
      when they remove the public officials, non-Shawnee residents, and organizations, there
      have been equal representation for and against the ban. She stated there were exactly 12
      against the ban and 13 for it. So, if they want to say there are 1,900 people who want
      this, and she will give them the population of children under the age of 18, she would
      have to say there are 56,100 that do not want it.

      Councilmember Distler stated that Ronald Reagan stated, "Freedom is a fragile thing and
      is never more than one generation away from extinction. It is not ours by inheritance; it
      must be fought for and defended constantly by each generation, for it comes only once to
      a people. Those who have known freedom, and then lost it, have never known it again."

      Councilmember Distler asked City Attorney Rainey if this smoking ban applies to
      churches.

      City Attorney Rainey replied that Shawnee does not have a smoking ban at this time and
      they do not have an ordinance. He stated he has been hearing about the Shawnee
      ordinance tonight and is not sure what the reference is to. He stated there is a draft of an
      ordinance and the exceptions will be up to the Council to decide. He thinks both the
      Overland Park ordinance and Shawnee draft ordinance, without the exceptions, would
      apply to churches.

      Councilmember Distler stated churches have employees, children, and families. She
      asked if that will include the swinging, smoking incense that is swung around at funerals
      and chokes everyone out and sets off asthma in asthmatics.

      City Attorney Rainey stated that sounds like somewhat of a loaded question or a leading
      question in some parts. He stated he would have to look into that, to see if that would be
      considered. He stated people have candles in their homes and he has not really
      considered whether either one of them would be affected. He is not sure if that would
      affect a candle on a dining room table or in a restroom. He is not really considering those
      questions.

      City Manager Gonzales stated the definition of smoking in the draft ordinance speaks to
      holding or carrying any lighted or burning pipe, cigar, or cigarette of any kind or the
      lighting, inhaling, and exhaling of smoke from a pipe, cigar, or cigarette.

      Councilmember Distler stated she saw that, but the reason she was asking, was because
      when she was putting together her list of things that have set off her asthma attacks for
      Councilmember Straub, she remembered her grandpa‟s funeral and even those who did
      not have respiratory disease, had to get up and leave the inside of the church because it
      was so smoky. She asked if that is not included because it is considered part of a
      religious ritual and there is no tobacco included, then are they only discriminating against
      the Native American religion. The ceremonial use of the peace pipe is a simple ritual.
      The peace pipe serves as a portable altar. It is loaded with tobacco, and only tobacco, or
PAGE 39                            CITY COUNCIL MINUTES                     SEPTEMBER 24, 2007


      a tobacco variation called kinnic kinnick , which is the bark of the red willow and non-
      hallucinatory.

       Councilmember Distler stated if they have a church, they are in an enclosed section and
      if they have employees she wonders if that will ban their religious rituals. She stated
      actually it is a portable alter, so they should, she would think, have the right to do it
      anywhere.

      Councilmember Distler stated that sociologists and anthropologists define religion as an
      abstract set of ideas, values, or experience developed as part of a cultural matrix. She
      stated a group of some people meet at the same bar every single night and smoke and that
      might be part of a religious thing for them. She stated she is not sure if City Attorney
      Rainey has seen at the School of Law, University of Missouri at Columbia, there has
      actually been debate on who owns the air in the inside property, because pollution is
      normally applied to outside communal air that everybody shares, so if someone is
      burning their leaves or grilling their hot dogs, they are putting smoke in the communal
      air, versus they are actually fighting the inside air as personal property owned by the
      owner, so it is not considered part of the pollution. She asked City Attorney Rainey if
      that is in consideration.

      Councilmember Pflumm stated he does not think they considered any of that.

      City Attorney Rainey replied he does not think it is, despite having graduated from the
      University of Missouri Kansas City.

      Councilmember Distler stated probably when City Attorney Rainey was in school years
      ago, it was not an issue.

      City Attorney Rainey stated he does not think it is really an issue in legal circles today,
      although there may be some fringe groups considering it.

      Mayor Meyers stated he thinks this is a good time for him to make his statement and
      opinions known. He stated he has tried to be as impartial as possible to not influence,
      whether it be the task force or the Council, in making decisions on process before he
      made an opinion, but thinks this is a good time for him to step in and speak. He
      reiterated that this is only his opinion.

      Mayor Meyers stated as an elected official, he thinks it is important to understand as
      much as possible the pulse of the public. He stated in this situation in deciding on
      smoking or no smoking, he thinks there are great arguments and has been presented with
      great arguments on both sides of the issue. He does believe that there is a large majority
      of people that want more protection for the health and welfare of their families. He stated
      because of that, his belief is that there should be a smoking ban.

      Mayor Meyers stated throughout the process, he has seen the task force come forward
      with recommendations if a smoking ban were to be voted on. He stated he has tried to
PAGE 40                             CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      give as much opportunity for councilmembers to voice their opinions and thinks he has
      heard a majority of councilmembers who have spoken this evening admit that they feel a
      smoking ban of some type is going to be strongly considered.

      Mayor Meyers stated he does believe throughout this process, through public comment
      he has received, whether it be through conversations, emails, or any other way they have
      experienced the gathering of information, that there is a large majority of people who
      want a smoking ban. He thinks the decision now become, in his mind, what exemptions
      are they going to look at. He thinks every city who has a smoking ban, at least that he
      has looked at, has some exemptions to their ban. He stated exemptions seem to be the
      thing they need to look at, as to what will be acceptable for Shawnee and not acceptable
      in talking about a smoking ban.

      Mayor Meyers stated that he personally does not agree with a grandfather clause, as far as
      a smoking ban is concerned. He does not have problems with some of the other
      exemptions of other cities. He stated what this Council decides on, as far as exemptions,
      if there are any he will listen to and make comment at that time, but that is an opinion that
      he wanted the public citizens of Shawnee and the City Council to hear this evening.

      Councilmember Sawyer stated first of all he would like to thank the task force. He stated
      he was one of the persons in favor of forming a task force, because he believes, as
      always, that they should have citizen input. He stated some people might have the
      opinion that he is against a smoking ban and that is the farthest from the truth. He stated
      he believed when they formed the task force and prior to that being formed, inevitably
      they would get to the point where they had some form of a smoking ban.

      Councilmember Sawyer stated he thinks the task force did a great job of listening to the
      citizens of Shawnee and taking outside information and formulating their
      recommendations. He stated that he thinks before the night is out, they will get to the
      point that the City will have some form of a smoking ban.

      Councilmember Straub asked Assistant City Attorney Rainey about 9.05.020C where it
      says smoking is prohibited and unlawful within outdoor seating areas. He asked if that
      would mean a football game or a baseball game.

      Assistant City Attorney Rainey stated they provided a definition in the outdoor seating
      area section, meaning an area adjoining and outside a restaurant or drinking
      establishment and designated, established, available to, or customarily used by its patrons
      for consuming food or drink, so no, it would not.

      Councilmember Straub asked if it would be a problem to add that, because he knows
      going to a kid‟s baseball game, football game, or even to the Theatre in the Park, because
      they have concerts in the park and he can understand how Tony Lang and his people
      would feel. He asked about sitting down on a bench with his kids and the guy right in
      front of him on the benches is smoking and the smoke is coming right up by him and his
      kids.
PAGE 41                              CITY COUNCIL MINUTES                        SEPTEMBER 24, 2007




      Assistant City Attorney Rainey stated he would hesitate to answer that without having
      looked at what someone else may have come up with, or how they might have addressed
      that issue.

      Councilmember Straub stated the parks could prohibit that in their own bleachers if they
      wanted.

      Assistant City Attorney Rainey replied he thinks so, but he is not only struggling with the
      definition section, but the whole purpose behind this particular issue - when the tobacco
      smoke is combined with an enclosed area. He stated he is not sure the public health
      safety and welfare purpose for having this ordinance would apply to an outdoor area
      where the smoke is disseminated, but he has not looked at it. He stated he is not sure if
      the task force looked at or reviewed that issue, as he has not seen that in any other city
      ordinances.

      Councilmember Straub stated thanks to Councilmember Kuhn, and he appreciates her
      assistance because she is always very helpful, he would feel okay with modifying his
      motion to do the draft ordinance that the city attorneys have come up with, because he
      has read through it and if they say it is basically as strict, if not stricter, than the Overland
      Park ordinance – he asked if that is what Assistant City Attorney Rainey said.

      Assistant City Attorney Rainey replied that is hard to answer, but believes the definitions
      are better. He stated they tried to define each issue that might come up and address
      something that they thought was a problem.

      Councilmember Straub asked if the home businesses are taken care of, as well as the
      outdoor burning.

      Assistant City Attorney Rainey answered yes, all those issues were considered.

      Councilmember Straub stated those were the two issues he had on the Overland Park
      ordinance. He stated if Councilmember Pflumm would be okay with it, he would modify
      his motion to change it to the draft ordinance that the City of Shawnee has come up with,
      with the exceptions that was recommended on the hotel having 25% of the private rooms,
      meaning 75% of the hotel rooms would be non-smoking. He asked if he can modify his
      motion at this time.

      Councilmember Kuhn stated that was the question that came up earlier with Robert‟s
      rules. She asked Mayor Meyers if they can modify a motion to approve a different one to
      modify it just to approve a completely different ordinance. She asked if they should
      withdraw the motion and then recognize somebody else.

      Councilmember Straub asked Councilmember Kuhn if she did not want him to modify it.
      He said he thought she wanted him to switch over to the proposed Shawnee ordinance.
PAGE 42                            CITY COUNCIL MINUTES                     SEPTEMBER 24, 2007


      Councilmember Kuhn stated she thinks what she would have liked to have done, was to
      have an intelligent, educated, informed discussion in regards to the proposed ordinance
      that was given to them and the possible exemptions that may or may not be. She does not
      think they have really discussed any specific exemptions and how they would fit in. She
      stated she would probably like to do that at some point in time.

      Councilmember Straub asked Councilmember Kuhn if she was asking him to not modify
      his motion. He asked if that is what she is doing.

      Councilmember Pflumm told Councilmember Straub to just modify his motion.

      Councilmember Straub stated he is going to modify his motion. He stated the first
      exemption recommendation was the hotels where 75% will be smoking and 25% will be
      smoking permitted. He stated recommendation #2, which he thinks it is strange to make
      a recommendation to smoke in a smoking store, but a person can not drink in a liquor
      store, but he thinks that is okay because he does not go to those smoking stores and
      would guess that most people that do not smoke do not go there either. He stated with
      regard to the outdoor patio dining, recommendation #3, that is if the restaurant owner
      would like to make their patio smoking – they have that right and do not have to and can
      still make the choice to make it a non-smoking establishment all the way around.

      Assistant City Attorney Rainey asked Councilmember Straub when she says
      „establishment‟, does he mean the outdoor seating owner.

      Councilmember Straub replied the bar owner has a patio and he can make the decision
      whether it is going to be a smoking or non-smoking patio.

      Assistant City Attorney Rainey stated if that is what the majority of the Council decides,
      then yes.

      Councilmember Straub asked if he can not force him to make the outdoor seating areas
      non-smoking.

      Assistant City Attorney Rainey presented the proposed base ordinance and read,
      Prohibition of smoking in enclosed places of employment, enclosed public places, and
      outdoor seating areas. He stated it is prohibited in the base ordinance and
      recommendation #3 from the task force would allow the outdoor seating area, designated
      by a restaurant or drinking establishment as a smoking area that would be excluded from
      the provisions of the ordinance.

      Councilmember Straub asked about Friday‟s, since they have an outdoor smoking area,
      and if they did not want their outside area designated a smoking area, they then have that
      ability to make it non-smoking if they want. He asked if that is correct.

      Assistant City Attorney Rainey answered that is correct.
PAGE 43                            CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      Councilmember Pflumm stated it is prohibited in the ordinance and exempted there if
      they admit it.

      Councilmember Straub stated that is his motion with recommendations 1, 2, and 3 from
      the task force.

      Councilmember Pflumm stated he will modify his second to second his amended motion.

      Therefore the motion read:

      Councilmember Straub, seconded by Councilmember Pflumm, moved to pass an
      ordinance to enact the proposed smoking ordinance presented by the Shawnee legal
      counsel prohibiting smoking in all public places, with the exception of 25% of the City‟s
      hotel rooms, inside tobacco shops, and on outdoor patio seating.

      Councilmember Kuhn stated the only comment she would have is that she would be
      completely in favor of that motion and they could have saved two hours of discussion, if
      they had originally looked at the Shawnee proposed ordinance. She stated she would
      however like to look at and take into consideration some of the 60/40 recommendation.
      She stated she agrees with the Mayor that grandfathering that clause in would be
      inconsistent with the dual purpose, both the protection of their citizens and the protection
      of the individual businesses.

      Councilmember Kuhn stated she is very uncomfortable with the 40% recommended by
      the task force. She stated that really does not set the bar high enough. She stated their
      own State liquor licensing sets the bar at 30% so they can differentiate themselves
      between a food establishment and an adult beverage establishment, but she does believe
      for the enforcement and for the temperature of the majority, she believes, of the Council
      and the majority of the constituents that she has heard from, 33% would probably be a
      much more comfortable number and if the ordinance is presented as proposed with only
      those three amendments, she would have to vote no, because there is no way to go back.
      She really thinks they should discuss and elaborate on the other recommendations.

      Councilmember Scott stated she agrees with Councilmember Kuhn. She believes they
      need to move forward and something needs to be done, but also believes a compromise
      on the sale of food and liquor percentage-wise and 33% is agreeable with her and thinks
      that would benefit the most people and hurt the least. She stated she thinks the key word
      here is compromise.

      Councilmember Goode stated when they first started talking about this quite some time
      ago and he can not remember when it was, he had the opportunity to consult with a lot of
      people after this thing was brought to fruition. He stated in talking to many people, they
      told him rather than him telling someone if they can smoke or not, why not put it before
      the people in the form of a vote. He stated he thought of that and does not smoke
      himself, but does not want to go around and tell people they can smoke or not smoke.
PAGE 44                             CITY COUNCIL MINUTES                       SEPTEMBER 24, 2007


      Councilmember Goode stated his intentions were to really work on that issue and put it
      before the people at the next general election, or one of their next elections. He stated
      since then, he has been advised by City Attorney Rainey who he has known for many
      years and has worked for, for many years that he, as a member of a Council or this
      Council, could not put that before the people unless they brought in the petitions. He
      stated the petitions so stated that those petitions would state that they want that to go to
      the people. He stated they would have to start all over again on this and he was very
      surprised when he recently spoke about it with City Attorney Rainey.

      Councilmember Goode stated tonight, he has to make up his mind about what he is going
      to do to vote for this thing. He stated he is going to make up his mind, but not pursue it
      anymore about taking it to the people, like so many people have talked to him about. He
      stated he is still going to agree with those people, but it is somewhat of an out situation to
      start from scratch because of the State statutes of Kansas. He stated that is where he
      stands tonight and will support some of the recommended exceptions, because he thinks
      they need exceptions in every ordinance as far as he is concerned and does not think they
      need to be iron clad and tight fisted. He stated this is not the military, this is just the
      general public.

      Councilmember Pflumm stated if they have to have a compromise to pass something here
      tonight, Councilmember Kuhn brought up 33% alcohol sales and 67% food sales.

      Councilmember Scott stated it is just the opposite.

      Councilmember Pflumm stood corrected. He stated he just gets the impression that 80%
      of the people probably in American, Johnson County, Shawnee, and in Kansas are not
      really pro-smoking and are pro non-smoking, based on a number of different surveys. He
      stated if he was going to have to compromise, then 20% liquor sales and 80% food sales
      would be a compromise.

      Councilmember Kuhn stated she really would not have a problem with that, personally,
      but the unfortunate problem is that the Kansas Liquor Licensing people do. She stated in
      order to be considered a full service bar more or less, they have to have 30% of their
      revenues, which is where some of the numbers came from that Finance Director Kidney
      had, from food service. She stated part of Councilmember Pflumm and Councilmember
      Straub had talked about, was the enforceability and making sure that people were on the
      up and up. She stated she does not want to make it harder for their businesses to do
      business, or make it harder for their people to go to their businesses.

      Councilmember Kuhn stated the number 33 comes up, because it is a little less than one-
      third, it will make it easy for someone who has a slight variation in their business one
      year to the next to make sure they can comfortably approach their business plan in a way
      they can make a decision whether they want to be a drinking establishment or a
      restaurant, limits probably to the 80% Councilmember Pflumm is talking about, and she
      would say probably 90%, of the establishments that serve food, food and liquor, or just
PAGE 45                             CITY COUNCIL MINUTES                       SEPTEMBER 24, 2007


      liquor in the City of Shawnee to be non-smoking. She thinks 33% is a good compromise
      and meets all numbers.

      Councilmember Kuhn stated the number recommended by the task force was 40% and in
      order for that sense of compromise, have taken a full seven percentage points back and
      really left just enough room to do business in a reasonable and have reasonable
      accountability.

      Councilmember Pflumm asked Assistant to the City Manager Singer about Salina and if
      she mentioned a percentage.

      Assistant to the City Manager Singer replied Salina‟s percentage is 30/70.

      Councilmember Pflumm stated basically every one of those bar owners have to be right
      on the dot or they will have to apply for a Class D distinction. He asked if that is correct.
      They have to have 30% or then can not be in business and have to apply as a Class B
      club.

      Assistant to the City Manager Singer stated according to State law that is . . .

      Councilmember Pflumm interjected that they have to be right on that number and can not
      be at 31% or they are a non-smoking and can not have 29% or they are not a bar.

      Councilmember Scott stated they have to have at least 30%.

      Assistant to the City Manager Singer stated an establishment could not have less than
      30% of their sales in food. She stated it has to be at least 30% food sales in order to be a
      bar.

      Councilmember Pflumm asked if it is not 30% alcohol.

      Assistant to the City Manager Singer replied in order for someone to have a liquor
      license, they have to have at least 30% of their sales in food.

      Councilmember Straub stated to allow smoking, if a place is over 30% they can not allow
      smoking.

      Councilmember Kuhn stated that is exactly her point.

      Councilmember Pflumm asked with the City of Salina, Kansas and if they gave any
      information about every single bar owner who does not have 29% or 31% alcohol.

      Assistant to the City Manager Singer replied that is enforced by the Alcohol and
      Beverage Control, as far as how the liquor license is given out and if they meet their
      percentage thresholds. She stated as far as Salina‟s purpose of enforcing their ordinance,
      it is complaint driven and they have not had any problems with it. She stated with regard
PAGE 46                            CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      to the bars who meet the 30/70 requirement for liquor, Salina has not had any problems,
      if a place decides they want the bar status and are primarily a bar. She stated they can
      then fill out the forms and no one has had any complaints so far, as far as enforcement
      from the city is concerned.

      PEGGY GIBSON, 7515 Cody #5, stated she is also the manager of the American Legion
      in Shawnee. She stated they are under a Class A license and that license is because they
      are a veterans‟ organization. She stated she keeps hearing conversation about non-
      smoking and food, but she does not think the Council is taking everything into
      consideration.

      PEGGY GIBSON stated all she can do is tell the Council her own personal opinion. She
      stated first of all, she does smoke. She stated she has a lot of family that does not smoke.
      She stated she does smoke in their house, when she goes to a family member‟s house that
      does not smoke. She stated she does not smoke in their cars. She stated when she has
      customers or clients who come into the American Legion to book their hall, she asks
      them first if they mind if she smokes. If they tell her they mind, then she does not smoke.

      PEGGY GIBSON stated she would be willing to say that a good majority of the people
      that are there every Friday night for the bands are probably non-smokers, but it does not
      keep them from coming. She stated they are there to enjoy themselves and have a good
      time. She stated she works for a veterans‟ organization and has a 40 year old son. She
      stated he just came home from Iraq and is a member of that post. She asked the Council
      if they are now going to tell him that he can not smoke in a post that he went to war for or
      a country in which he went to war for.

      PEGGY GIBSON asked going back in history from Day 1, how can the Council honestly
      force what they want on other people. She stated that is what the Constitution was made
      for. She stated she is not against a smoking ordinance, but is merely saying the Council
      should give people the opportunity to make that choice. She asked since when in the
      United States have the people not had a choice and she thinks that is what it is coming
      down to. She stated here again, that is only her opinion.

      Assistant to the City Manager Singer stated in Salina‟s county it is 10% in order to be
      considered a bar and in Johnson County it is 30%.

      Councilmember Distler asked what would happen to Shawnee‟s ordinance, if the County
      changed their percentage.

      Assistant City Manager Charlesworth replied the only way the County could change their
      percentage is by a countywide vote to become a wet county with no food sales
      restrictions.

      Councilmember Sawyer asked Assistant City Manager Charlesworth if food is in there so
      they can be open on Sundays.
PAGE 47                             CITY COUNCIL MINUTES                        SEPTEMBER 24, 2007


      Assistant City Manager Charlesworth replied it is based on whether or not a county is wet
      or dry and a wet county with food sales or a wet county without food sales restrictions.

      Mayor Meyers stated the Council all understands the motion on the floor and hopes
      everyone in the audience understands the motion on the floor. He stated if anyone in the
      audience wants to speak, they can please come forward and be recognized. They need to
      state their name and address for the record. He stated they would like the comments
      limited to 3 minutes to try to avoid repeating information that the Council has heard time
      and time again.

      CHRIS SUTTON, 16649 Midland Drive, stated he is one the owners of Barley‟s
      Brewhaus. He stated they have been in business going on 12 years now. He stated 12
      years ago, they invested over $1.5 million on their business and have enjoyed conducting
      business in Shawnee. He stated at that time, they made the decision to invest over $1.5
      million because of a set of ground rules they were playing under and feels now as though
      the Council is trying to change those rules.

      CHRIS SUTTON stated as most of them know who have been to Barley‟s, it is a large
      facility and there are areas that are not non-smoking, areas that are smoking, and areas
      that are combined. He stated they try very hard to separate the smoking from the non-
      smoking. He stated they have separate ventilation systems, so they feel they have gone to
      great lengths to make sure that everyone is comfortable in their establishment.

      CHRIS SUTTON stated one of the things that has not been discussed is this little
      development called The Legends. He stated, of course, as soon as they start driving
      business away from Shawnee, people will start going to Wyandotte County and to
      Merriam to these different places for a foreseeable future that will not have any type of a
      ban and that is of great concern to him. He stated along with that, of course, are the tax
      dollars that leave when business leaves.

      CHRIS SUTTON stated he does not quite understand the difference between the
      percentages in food and liquor, when it is a health issue and how it is that a bar, and they
      are not taking into consideration the health of the bar patrons or the bar workers, but they
      are for the restaurants. He stated it is almost like the Council is going halfway there, but
      somewhere in the middle to appease everyone. He stated he thinks for an establishment
      such as his, it is the worst case scenario.

      CHRIS SUTTON stated the Council is saying, „You know what, it is all about the health,
      it is all about providing a safe environment for our patrons, our constituents, except we
      are going to bend the rules a little bit and if you want to go into a bar or have to work at a
      bar, don‟t worry about it because you can have secondhand smoke at that point and can
      die from secondhand smoke at that point, but if it is a restaurant, we are going to clean up
      the restaurants a little bit‟. He stated it is a little wishy washy for the Council to be taking
      that position with all due respect.

      Mayor Meyers stated the Council has not yet taken that position.
PAGE 48                            CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007




      CHRIS SUTTON stated it sounds like it is going that way and that scares him. He stated
      he participated in the Prairie Village and Overland Park City Council meetings and he
      will say, this is the most entertaining for what that is worth. He stated he is being honest
      and is actually good, because at the other meetings there was not great heartfelt dialogue,
      so he appreciates the fact that the Council speaks their minds.

      CHRIS SUTTON stated there are so many issues here, he does not know if he has the
      time to address them all. He stated he personally feels like even though it seems like it is
      not going this direction, the grandfather option is the best one, because those men and
      women who have invested money in establishments did so with a certain set of ground
      rules and now those are being changed. He stated if the Council enacts and adopts a
      policy going forward, then they say to the new bar owners and new restaurateurs, of
      which by the way will not be that many because they all know people go to
      establishments because they want to have a good time and for any of them who think that
      if they do away with smoking that sales will increase for some great reason because
      people are going to be more up to go out, it is simply not true and not even debatable.

      CHRIS SUTTON stated he had a restaurant that he opened in Prairie Village before the
      smoking ban and opened it as a non-smoking establishment. He stated a year later, he
      had to turn part of it smoking because he could not make enough money to stay open. He
      stated conversely his organization had a restaurant in Lawrence that was a smoking
      establishment, of course providing non-smoking patrons and smoking for other patrons,
      and they chose to go non-smoking and lost business and money and eventually had to sell
      the business.

      CHRIS SUTTON stated the Council will be putting stores out of business by this action
      and it may be a necessary evil and he is not up here tonight to say one way or another.
      He stated he does believe that Councilmember Distler is the most eloquent in her speak,
      not simply because of her opinion necessarily, but the fact that patrons do not have a right
      to come into their establishments, they choose to do that. She stated if it was pure supply
      and demand, more of them would go totally non-smoking, if that was what the public was
      really after. He stated the Council should just leave it up to the public to decide their
      preferences.

      Councilmember Pflumm stated Mr. Sutton would be taking an unnecessary risk if he
      went non-smoking. He stated if he went non-smoking and did it over in Prairie Village,
      he took on the risk himself because he thought that was what people were going to go for.

      CHRIS SUTTON stated they were wrong.

      Councilmember Pflumm stated he happens to agree with Mr. Sutton on the situation with
      the percentage. He stated if the Council says 20/80 or just pick a number out of the sky,
      then a guy over there has a bar and he can have smoking and Mr. Sutton can not.
PAGE 49                            CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      CHRIS SUTTON stated it is arbitrary. He stated there is no question that any type of a
      ban will hurt sales. He stated there is no question that any type of a ban will hurt the tax
      base. He stated there is no question that the people will leave Shawnee and go to
      Merriam and Wyandotte County. He stated The Legends is a pretty big attraction and it
      is taking business from all of them; he can assure the Council of that.

      CHRIS SUTTON stated he thinks the best solution would be to enact a grandfather
      clause so the businesses who started out with a certain set of rules can continue playing
      under those rules. He stated they can let the new operators decide whether or they want
      to join this community with their hard earned money. He thanked the Council for their
      time and told them good luck with their decision.

      BILL NIGRO, Kansas City, Missouri, stated he is not a Shawnee resident but has a lot of
      family that live in Shawnee. He stated he is the Vice President of the Kansas City
      Business Rights Coalition. He stated they are an organization with 160 members and
      represent over 16,000 employees. He stated they represent members on both sides of the
      State Line. He stated they are predominantly a group of restaurant and bar owners
      throughout the metropolitan area and have a very strong stance against the smoking bans.

      BILL NIGRO stated the gentleman who was just up here said a lot of the things he would
      have covered. He stated he would mention that a couple of his personal friends do own
      businesses in Lawrence. He stated one being Coyote‟s Bar. He stated Dennis Steffes did
      go all the way to the Missouri Supreme Court because he felt so strongly about the
      smoking ban. He stated his business dropped by 55% when the smoking ban started and
      is still down 45%. He stated another gentleman who owns a place called Gas Light, his
      business dropped over 30%. He stated both of these individuals, who are friends of his,
      had to lay off numerous employees because of the drops in their business.

      BILL NIGRO stated the places that took the biggest hits in Lawrence, were the places
      that did not have patios like the Sand Bar, Luis‟, and Coyote‟s. He stated a friend of his
      who owns a place in Independence called Becky‟s most recently enacted a smoking ban.
      He stated she lost a dramatic amount of business. He stated she said it is probably, but
      does not know the exact figure, over one-third of her business. He stated she lives near
      the Sugar Creek/Independence border and her customers simply went over to Sugar
      Creek.

      BILL NIGRO stated Mr. Sutton was correct; if someone can not smoke here in Shawnee,
      they will find some place else to go. He stated he would just like to point out and
      believes it was Councilmember Straub who said it is not easy getting jobs here in town
      and even people from Sprint had a hard time. He stated he would like to know where the
      pregnant ladies or single moms that Councilmember Pflumm was talking about will go
      get a job in this town when they are laid off because the businesses that are affected by
      the smoking ban had to lay them off. He thanked the Council for their time and asked
      them to please keep in mind that this will directly affect a lot of employees throughout
      the Shawnee area.
PAGE 50                            CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      JIM DENTON, 13820 W. 77th Terrace, stated he really wants to talk about the VFW and
      the American Legion. He stated he is not sure if all the councilmembers know, but those
      places are not clubs that people can just waltz down to and sign up for. He stated if
      someone wants to be a member of the VFW here in Shawnee, they have to provide a
      DD2-14, which is a document from the U.S. Armed Services that says they served active
      duty or in a combat zone. He stated that he does not really feel that this organization
      should fall into a Class A bar situation. He stated sure, they go down there to drink and
      tell stories about yesterday, but are not really a Class A bar, because if someone has not
      been in the service, they can not be a member.

      JIM DENTON stated the VFW does not really fall into a bar situation, even though they
      operate one. He stated to say the VFW is a private club, well; it is a private club, because
      if someone has not served in the armed services, they can not get in there. He asked the
      Council why they are excluding the VFW, and believes it is the only one in Shawnee. He
      stated they are not open to the public and do not serve children. He stated they very
      rarely ever have a child come into the establishment. He stated if someone is not 21
      years old, there is no need to go in there. He asked why the Council would want to rule
      on something that is so private and exclusive.

      Mayor Meyers thanked Mr. Denton for making his point. He stated that it is something
      the Council should hear.

      MIKE TRAMP, Owner Foobars, stated he is also employed in the city by another
      company. He stated his bar is small and everyone knows how small it is and he has
      nowhere to put outdoor seating. He stated his food sales are at about 31% to 34%. He
      stated the State does require him to have 30% or more, or he has to become a Class B.
      He stated as far as the Council wondering how they can enforce it, if they want to do the
      sales part, they send a form every month to the State on how much the percentage of their
      sales are with liquor versus food. He stated they have to fill out that form every month
      and file it with the State. He stated to file that form with the City each month, would not
      be an issue either for most people who want to operate that way.

      MIKE TRAMP stated even at 40% they are still cutting down. He stated he believes it
      was said earlier that there is only around 10 of them under 40% in Shawnee. He stated
      most of them are very small. He stated they have all been doing a poll of all their
      customers and over 75% of their customers smoke. He stated the ones that do not smoke,
      most of them did smoke, but they still come in even with smoking and like the bar and
      atmosphere. He stated it these people‟s neighborhood spot and they do not want to lose
      it.

      MIKE TRAMP stated he does not want to lose it, because he would probably lose 50% of
      his business because he would have to do outdoor seating and has no place for outdoor
      seating. He stated he tried to do outdoor seating and got denied, because it was too close
      to the easements. He stated he would probably lose his business if this passed. He stated
      with 33%, he would just have to stop serving lunch or stop doing lunch specials and
      could probably get down to that number.
PAGE 51                             CITY COUNCIL MINUTES                       SEPTEMBER 24, 2007




      Councilmember Straub asked Mr. Sutton about the percentage of food to liquor at
      Barley‟s.

      CHRIS SUTTON stated Barley‟s is 65% food. He stated he is glad Councilmember
      Straub asked, because Barley‟s is everything. He stated at lunch they are a restaurant.
      He stated at happy hour they are somewhat of a bar. He stated at dinner time they are
      family establishment and in order to make their rent, cover their overhead, pay all their
      employees, and still make a little profit, they need to be a bar at night. He stated when
      they distinguish between bars and restaurants and try to make that very fuzzy arbitrary
      distinction, they will end up penalizing either the owner of Foobars or him, or someone
      else, depending on what the arbitrary number ends up being. He stated that is why it is so
      difficult for him to get his arms around a percentage.

      Councilmember Straub asked Mr. Sutton if they will be putting patrons out of his bar into
      another bar if they allow a percentage.

      CHRIS SUTTON answered yes, and they might send them to another county or another
      city.

      Councilmember Straub asked Mr. Sutton if he has bars in Overland Park.

      CHRIS SUTTON answered yes.

      Councilmember Straub asked Mr. Sutton if it looks like they are going to have problems.

      CHRIS SUTTON answered yes, absolutely they will have problems. He stated it takes
      place on January 1st. He stated it is different at every location. He stated his Overland
      Park location happens to have a patio and they are trying to make adjustments so they can
      enclose part of the patio and still have a patio. He stated they are trying to figure out how
      to put heaters on the patio so they extend the life of the patio. He stated the patio will not
      be available to the non-smokers, because everyone who does smoke will be out there, so
      it will turn into a smoking patio. He stated he does not sit his family around smokers, so
      he will not go to that patio any longer and that becomes another dynamic.

      Councilmember Pflumm stated they could have a patio in Shawnee.

      CHRIS SUTTON stated they may have easement issues there too. He stated it is not just
      about Barley‟s, but about everyone out there in different situations. He stated he tries to
      look at this globally and that is why this arbitrary number they are trying to arrive at,
      whether it be 33% or 37% or 27 ½%, someone will be on the cutoff and someone will
      lose their business. He stated that he maintains that the grandfather clause is the fairest
      thing for everyone, because moving forward people will choose whether or not they want
      to invest their money in this community or not. He stated it is as simple as that.
PAGE 52                             CITY COUNCIL MINUTES                        SEPTEMBER 24, 2007


      PAUL CUNARD, 6823 Greenwood, stated one thing he wanted to address and is really
      surprised he has to do this, is to stand up here and to some extent defend the task force to
      some people. He stated what the material that the Council has in front of them this
      evening to read through times 10 or more for each task member who had homework
      assignments. He stated he thinks it has been taken a little lightly by some of the
      councilmembers, because they put their own time into it and thinks it deserves a little
      more respect than it has gotten.

      PAUL CUNARD stated there are some disappointments in himself as well, about some
      of the things that came out of it. He stated a couple of the recommendations that showed
      up actually ended up from him being the lesser of several evils. He stated he voted for
      both of them to allow the Council to have a broad spectrum of topic of conversation and
      if he had known it would have gone to this tonight, he probably would not have voted for
      them at all; that being the grandfather clause and the percentage.

      PAUL CUNARD stated he saw the grandfather clause and the percentage as being, down
      the road, as something of an entanglement for both the Council and the City, as far as
      government and administration enforcement. He stated he would like to propose to the
      Council a question, that being if there was another alternative. He stated that is given that
      the Council has certain exemptions in front of them already and they protect public places
      as listed, but not limited to and that is a pretty big list – the patios, the tobacco shop, and
      the percentage of hotel rooms.

      PAUL CUNARD stated he would propose why not let the people out there who have
      invested years, money, and toil for the businesses they have in Shawnee, to choose whom
      they will serve – smoking or non-smoking, but not both in the same business. He stated
      Councilmember Pflumm mentioned a while ago that he would think that 80% of the
      people in the country are pro non-smoking. He asked of the list of businesses up on the
      overhead earlier, what if in the enactment of this ordinance 80% of that list would be
      non-smoking. He stated they would not penalize the people who put their time and
      money in investment in Shawnee, like Jake‟s, P.J.‟s, Foobars, or C.O.P.S. He asked why
      penalize these people and take what is a viable business and run the risk of closing their
      doors eliminating that tax revenue for this city. He stated it does not make sense to cut
      off their knees.

      PAUL CUNARD stated he would like the Council to consider that as an alternative. He
      stated this suggestion did not make it to the white board. He stated he spoke to several
      people about this over months and is something he has sifted down himself and boiled
      down to this situation. He stated maybe there is an alternative that has not been put
      formally before the Council that they should consider. He stated it is the Council‟s
      obligation to consider everything for the 58,000+ people in Shawnee who are going to
      have to live under this ordinance. He stated he would prefer to live under that, than the
      cloud or threat of a petition that he has absolutely no say about.
PAGE 53                            CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      Councilmember Kuhn asked Mr. Cunard to give her a more concrete idea. She stated
      that she is a non-smoker, so can she choose to not go to the smoking bar or do they just
      have to claim they are a smoking bar.

      PAUL CUNARD replied it would be a business decision by the business owner what
      public they would serve.

      Councilmember Kuhn asked if that is not what they have today.

      PAUL CUNARD answered no. He stated it would be an either/or. He stated there would
      not be a No Smoking section in a smoking business. He stated if clean air advocacy
      wants 80% of these restaurants to be smoke-free, that is what they would do today. He
      stated the business decides to serve either the larger market share or the smaller market
      share. He stated they serve either or, but not both within the same four walls of their
      business. He stated the business owner should be allowed to make that decision. He
      stated the smoker or non-smoker who wants to patronize those locations can make their
      own decision and assume risk.

      PAUL CUNARD stated they all walk by tobacco racks in the grocery stores and at Quik
      Trip and at Star Mart. He stated some people purchase and consumes those products and
      others do not. He asked why not let the business owner assume the risk, or why not let
      the consumer continue to assume the risk for what they do and do not want in their life.

      Councilmember Straub stated he has heard about different options, but the only one he
      has not heard about that made sense to him was about setting a time. He stated they
      could allow smoking after 9:00 p.m. He stated Mr. Sutton said he becomes a bar after
      9:00 p.m. and is what he lives off of. He stated when a majority of people are eating in
      that establishment, most of them, such as the lunch and dinner crowd do not want the
      smoke next to them. He stated if there is a game on Saturday afternoon, then the smokers
      can not smoke at that time. He stated he would be open to that suggestion and no one
      else has put it out there. He thinks he 60/40 thing is terrible, because Barley‟s is a great
      bar, just like any of the other bars and if they are kicking Mr. Sutton out of his place and
      sending people over to someone else because they do not do as much food, they are
      hurting his business and assisting someone else‟s business.

      PAUL CUNARD stated a couple of criteria for issues he boiled down, is that there has to
      be a three way win. He stated it has to be a win for the City of Shawnee and in that
      regard, the government and administration of the City and its codes and ordinances. He
      stated it needs to be a win for the small business owner in the beverage and dining
      industry within Shawnee, but also needs to be a win for clean air advocacy. He thinks if
      they can turn 80%, just on the national average, 20% of the society is smoking +/-, 80%
      is non-smoking +/- and if down the line on the enactment of this ordinance they have that
      division across the industry and the businesses within Shawnee that is a big win for clean
      air advocacy. He stated that is a big win for the small business owner and as far as the
      government and administration of an ordinance in Shawnee, it can not be any simpler
PAGE 54                             CITY COUNCIL MINUTES                        SEPTEMBER 24, 2007


      than the business owner making the decision to hang their shingle, open their door, and
      serve a specific public.

      Councilmember Straub stated he is a non-smoker, so would he not be allowed to go into
      the smoking restaurants.

      PAUL CUNARD answered sure he could, but he would assume the risk.

      Councilmember Straub stated he understands that. He stated, as Councilmember Kuhn
      said, they basically have what Mr. Cunard is suggesting, but they choose to have smokers
      in one area and non-smokers in another area. He stated they assume the risk. He stated
      even when he sits in a non-smoking section; he still smells smoke because of the other
      part.

      PAUL CUNARD stated that would be true, but that is not what he is saying. He stated he
      is saying within those four walls, they are one or the other. He stated he has been to
      Barley‟s and has sat in the non-smoking section, spent two hours in there, and came out
      smelling like an ashtray and that is not preferential to him, his wife, or his kids.

      Councilmember Straub asked Mr. Cunard if he would not want to go to Barley‟s.

      PAUL CUNARD answered he has gone to Barley‟s, but sits in the non-smoking section.

      Councilmember Straub asked Mr. Cunard if it became a smoking establishment, would
      he not go there anymore.

      PAUL CUNARD answered no, he does not have to.

      Councilmember Straub stated he still has that choice now as it is a smoking and non-
      smoking establishment. He asked Mr. Sutton about allowing smoking after 9:00 p.m.

      Councilmember Pflumm stated he brought the time issue up before and it was something
      like 10:30 p.m. He stated if a place is really a bar, kids in bars do not go out until 10:30
      p.m. or 11:00 p.m.

      Councilmember Straub stated he is not saying just kids, anybody.

      Councilmember Pflumm stated he brought that suggestion up months ago.

      PAUL CUNARD stated he thinks it is about as simple and easy as they can get. He
      stated as far as middle of the table, there is not another middle - really. He stated as far as
      enforcement is concerned, he thinks it should exclude the first responder people in
      Shawnee, as they really have better things to do 24 hours a day. He stated they should
      not be strapped with an enforcement code, based on a time of day. He stated police
      officers, firefighters, and med techs have better things to do.
PAGE 55                            CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      Councilmember Straub stated he does not think that was just for complaints. He asked if
      that would be the case if someone was smoking in a non-smoking establishment.

      City Manager Gonzales replied if there was a call and it was after normal business hours,
      than it would probably be a police officer that would respond and they would only
      respond if they did not have higher priority things to do.

      Councilmember Straub stated that would be low priority.

      Councilmember Scott stated she will address her question to Mr. Cunard or any other
      member of the smoking task force. She asked why recommendation #4 did not include
      Class B private clubs, because that is what it sounds like is being talked about. She stated
      that would give the owners an option to be smoking or be exempt.

      Assistant to the City Manager Singer responded that she supposes during the public
      meetings, some of the members from the Class A private clubs had spoken so it came up
      as a topic of discussion. She stated they just decided the Class B clubs would be in
      competition with any of the other bars in the area – at least that is her understanding. She
      stated any member could come in and sign up to be a member of a Class B club, so it is
      similar to any other bar establishment in the City, so they did not want to separate that or
      create a different category for those clubs.

      Councilmember Scott asked if that would still give the owners of the bars who will be on
      the border of this percentage deal, the option to be exempt.

      Assistant to the City Manager Singer stated the clubs would still fall under the percentage
      option, so if they met that percentage, they could be exempt.

      Mayor Meyers stated he thinks Councilmember Scott is saying if they did the Olathe
      ordinance, that would solve some of the problems that some people were speaking to, as
      far as giving some of the small business owners the chance to make the decision of going
      private or not and be exempt from the smoking ordinance.

      Assistant to the City Manager Singer stated as far as the small bars wanting to become
      private clubs, they thought the grandfather clause or the percentage option would be a
      better solution and that is why they did not recommend the Olathe model.

      Councilmember Pflumm stated the Class B clubs would also alleviate certain bars from
      having the percentage of food sales, because he believes a lot of them struggle with that.

      Councilmember Scott stated that is what she hears.

      Councilmember Pflumm stated he would be in more favor of that, than some kind of a
      67/33 percent thing.
PAGE 56                            CITY COUNCIL MINUTES                       SEPTEMBER 24, 2007


      LOUIE RIEDERER, 9503 Falcon Ridge Drive, Lenexa, Kansas, stated he owns Johnny‟s
      Tavern in Shawnee and four other locations in the Kansas City area. He stated to be a
      Class B private club in Johnson County the food restrictions are not there. He stated to
      be a Class B club; they would have to have a 10-day waiting period. He stated if
      someone wanted to come in and do business with him, they would have to come in and
      fill out a membership form, he would charge them $10.00, and then wait 10 days before
      they could do business with him.

      LOUIE RIEDERER stated when Olathe passed that, they joked about it during the time
      they did it. He stated they went through the three criteria. He stated there has to be a
      $10.00 membership fee. He stated there is a 10 day waiting period and the person has to
      be of high moral character – at least that is the way the city attorney read the ordinance.
      He stated the City Council joked that „ha, ha, that means none of us can go into a Class B
      club‟.

      LOUIE RIEDERER stated if someone tries to be a Class B club, there are a number of
      laws they would fall under which would make it very difficult to be in business.

      Councilmember Pflumm asked if that would give people smoking opportunities to go to,
      but not allow the general public to have to go into an establishment and have smoke
      around them. He stated no one has to go into an establishment, but really in effect, a
      person can not go into a bar establishment in Shawnee up until Rusty‟s just opened up
      without having smoke.

      LOUIE RIEDERER stated people can come into the other half of Johnny‟s. He stated
      they could make it non-smoking on one side.

      Councilmember Pflumm stated that is far from perfect, but it is a lot better.

      LOUIE RIEDERER stated he has been involved with the smoking ban for probably five
      years. He stated he owned a place in Lawrence and no longer owns that business, but has
      been involved in Overland Park and all the cities. He stated he has come full circle on
      this, from fighting a smoking ban to be a business rights advocate to realizing they were
      going to have a smoking ban to about a year ago when Overland Park passed their
      ordinance. He stated at least Overland Park gave a timeframe of 15 months to go into
      effect. He stated they gave some exceptions to it with the outdoor smoking issue and he
      felt like it was going to be something they were going to see.

      LOUIE RIEDERER stated he was at the State hearing meeting approximately three
      weeks ago. He stated they do not want to hear about it. He stated they just want to put it
      back on the municipalities and he felt that was very wrong. He stated if the State of
      Kansas would ban smoking entirely, then that would solve Wyandotte County. He stated
      he believes once they get Wyandotte County solved, that would solve Kansas City,
      Missouri and the entire metropolitan area would be smoke-free. He stated he believes for
      a lot of people an even playing field is something that is very critical to the success of
PAGE 57                             CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      their businesses. He stated something that will happen is a smaller bar will have a
      difficult time with the smoking ban.

      LOUIE RIEDERER stated he is being selfish with the option of the grandfather option,
      because it would help him and he would have a choice. He stated he does not know
      exactly what they would do at Johnny‟s. He stated they have three Johnny‟s now that are
      smoke-free and three where they allow smoking. He stated one of their smoke-free
      establishments on 135th Street has never done very well. He stated they are the first non-
      smoking sports bar, by choice, in the metropolitan area and has never done real well. He
      stated they are still in business and things are going okay; things have been getting better.

      LOUIE RIEDERER stated they opened up the Johnny‟s in Olathe and that location has
      been doing incredible. He feels that place is doing well because of the location and the
      environment with what they have done there. He stated they spent a lot of money at that
      location with the plasma TVs and everything else.

      Councilmember Sawyer stated it is the only one there.

      LOUIE RIEDERER concurred and stated it is the only bar out in an area that is probably
      under-serviced.

      Councilmember Straub asked Mr. Riederer what he would feel about the time difference.
      He asked him if he thought that was a good or bad idea. He stated that Mr. Riederer is a
      bar owner and how would that affect his business. He asked where is his majority of
      business – is it before 9:00 p.m. for bars.

      LOUIE RIEDERER replied they do both. He stated they do a lunch business. He stated
      with their store in Shawnee, they do an okay lunch, they do a good happy hour, and they
      do okay at dinner, and do a good late night business.

      Councilmember Straub stated most restaurants have a larger non-smoking section than a
      smoking section.

      LOUIE RIEDERER stated that is correct in today‟s world.

      Councilmember Straub stated with bars, if people are drinking, the majority of the time
      they may be smoking. He stated he is trying to figure out a compromise and the
      grandfather clause may be it. He stated with regard to the numbers thing, he is not sure
      where Johnny‟s stands on the numbers.

      LOUIE RIEDERER replied the Shawnee location is at about 38% in food sales.

      Councilmember Straub stated Johnny‟s would either be cutting back on food or . . .

      LOUIE RIEDERER interjected or increasing liquor specials doing something to market
      that product, depending on where they put the number.
PAGE 58                             CITY COUNCIL MINUTES                       SEPTEMBER 24, 2007




      Councilmember Straub stated Johnny‟s is very close to making that number work, but
      there would be no way Barley‟s could change that number so drastically.

      LOUIE RIEDERER stated that is why the grandfather clause is something that Mr.
      Sutton is looking at, as well as him. He stated he invested the money in 1996 when they
      first got in business in Shawnee. He stated the smoking ban advocates, if they are correct
      in their assumptions that it will help their business, there will be new restaurants that will
      come to town on the western side of Shawnee that will be non-smoking and will know
      the rules when they get into Shawnee.

      Councilmember Sawyer asked Mr. Riederer if he decided to sell his business, it would be
      non-smoking, so what that do the resale would price because the grandfather clause
      would go away.

      LOUIE RIEDERER replied he does not know.

      Councilmember Sawyer stated that changes the entire scope of that argument. He stated
      now this piece of property or business is not worth as much as it was prior to the ban. He
      stated he understands Mr. Riederer‟s side of it, as it is a tough tough issue. He has
      concerns with the businesses of Shawnee and not with every city around them not having
      the same ordinance. He stated he personally really likes what Prairie Village did with
      their smoking ordinance, but the vast majority on this Council is not going to look at
      what Prairie Village chose to do, because it will not kick in until all the surrounding cities
      kick in.

      Councilmember Sawyer stated if they are talking about making a level playing field,
      Prairie Village‟s ordinance is a level playing field. He stated if they are not talking that
      way, then as one gentleman said earlier and the Council is entertaining, then maybe he
      would like to operate in Lenexa. He stated Lenexa passed their smoking ordinance the
      night before a holiday and no one even knew it even happened. He stated maybe that
      gentleman would like that they did not even bring it up and give him an opportunity to
      talk about it.

      Mayor Meyers stated he would like to restate his opinion and one of his main concerns is
      the health and welfare of families. He does not think the grandfather clause helps the
      health and welfare of families to be improved, with what the City currently has. He
      stated it is his opinion that that is the voice and pulse of the public. He stated he has had
      large majority of people concerned about their family‟s health and welfare. He stated
      that is something that he places a huge amount of importance on and is why he made the
      statement of not being in favor of the grandfather clause that the task force put forward.

      Councilmember Goode stated on the other hand, the families have to go into bars.

      Mayor Meyers stated the families do not have to go into bars, but believes they go into
      restaurants on a consistent basis and whether they have the choice or not, the fact is that
PAGE 59                             CITY COUNCIL MINUTES                       SEPTEMBER 24, 2007


      families do choose to go to restaurants. He stated whatever restaurant it is and there are
      both smoking and non-smoking sections, families are complaining that the health and
      welfare of their families are being affected. He stated he can not argue the fact himself
      and does believe that secondhand smoke is harmful to one‟s health, but again that is his
      opinion.

      Councilmember Kuhn stated to expound off of that statement, Mr. Sutton had asked the
      question, „What is the difference between a bar and a restaurant, are they not only going
      half way, and why would they only go part of that‟. She stated her initial answer when
      she recommended looking at the one-third, is the difference is between two things. One,
      the patrons of an establishment where a larger majority, generally two-thirds or more of
      the food service will have patrons who will probably include families or younger
      children. Secondly, as mentioned earlier by Councilmember Pflumm, worrying about the
      wait staff and persons working there is also the age of the employees.

      Councilmember Kuhn stated generally speaking, when someone is employed at a
      restaurant, they look to often have younger employees for a number of reasons. She
      stated when an establishment generally serves the majority of their business in alcoholic
      beverages, the wait staff needs to be of a certain age and does change that in her opinion.

      Councilmember Kuhn stated if they were going to say purely it was a health issue, then
      the answer would be yes – there would be absolutely no smoking any place anywhere
      with no exemptions. She stated they all recognized that as much as it is a health issue, it
      is also an economic business rights issue. She stated they have to make some decisions
      about what exemptions they would like to enact that will help balance that and that is
      where that number came from. She stated it was not arbitrary. She stated the 33-35
      percentage number really lies somewhere in that one-third.

      CHRIS SUTTON stated it still does not make it fair for a business like his. He stated he
      still feels a health initiative should protect the entire public, not necessarily families and
      18 to 20 year olds serving those families, but everyone.

      CHRIS SUTTON stated to address Councilmember Sawyer‟s question, he would venture
      to say that everyone in this room who owns a business would rather have their business
      when they sell it, not be attached with that smoking license so to speak. He stated he
      would suggest that they rather take that approach and worry about the sale of their
      business later, than they would go with the smoking ban right now.

      Councilmember Sawyer stated that is a fair answer.

      Councilmember Pflumm stated no one said someone has to be 40 to work at a
      bar/restaurant, as opposed to just a restaurant. He stated someone only has to be 18 years
      old to serve alcohol.

      CHRIS SUTTON stated they can be younger than 18 to host or hostess. He stated when
      leaving Barley‟s people do not necessary smell of tobacco smoke, as they have a wood
PAGE 60                             CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      fire grill. He stated the delicious hand cut steaks and homemade sausages are quite often
      the aromatics people leave with.

      Councilmember Distler stated she is sensitive to it with her asthma, but when she has
      eaten in Barley‟s in the non-smoking section, it has not bothered her, but may have just
      been the time she was there. She stated she feels too that it is not the government‟s place
      to create a level playing field, as that is what capitalism is about. She stated really that
      will only be politically correct in a socialist‟s culture and is still under the belief that
      government has no business deciding who are winners and losers when it comes to
      private sector.

      Councilmember Distler stated they are talking about the recreation industry here. She
      stated that is the biggest difference here. She stated they are not talking about hospitals
      or doctor‟s waiting rooms. She stated when she was a kid; the people in the doctor‟s
      waiting rooms were smoking while waiting for the doctor. She stated they do not see at
      anymore. She stated people can eat and drink at home and do not have to go out.

      STEVE SMITH, 4719 Stearns, stated he has lived in Shawnee most of his life and has
      worked in Shawnee in the bars, clubs, and restaurants for almost 20 years. He stated he
      chose to go home smelling like smoke and could have left any time. He stated as far as
      the health and welfare issue that Mayor Meyers talked about, what bar owners will
      recognize more than anything, if people do not go there then they are showing the most
      they can by not taking their dollar there. He stated that is the best way to do it and thinks
      it should be grandfathered in.

      STEVE SMITH stated he lived in Los Angeles for a while when their smoking ban
      started and watched bars and grills close everywhere. He stated that is something to take
      into consideration. He stated they should grandfather these places in and if someone does
      not like the place, they do not have to go there. He stated economically, if they want to
      change to non-smoking these places will do it, but that is the way it should be.

      Councilmember Kuhn stated when they talked about the check cashing facilities; the
      question of ongoing ownership came up. She asked how they will differentiate the
      ownership of an establishment in Shawnee versus that. She asked how the question will
      be addressed of a court ordered bankruptcy where someone buys – would it would it not
      transfer. She asked about in a divorce where the judge gives ownership to the other
      spouse who was not named ownership and would it or would it not transfer. She asked
      when the primary owner of that establishment passes away, does it or does it not transfer
      to their descendents even though it is still within the same family ownership. She asked
      what if it is not transferred by sale or what if the establishment is owned in the name of a
      corporation or an LLC and that corporation or LLC never changes ownership, but the
      partnership or the make-up of that ownership changes.

      Councilmember Kuhn stated she thinks that was one of the biggest concerns they had
      previously and knows that was one of her biggest concerns with the grandfather clause.
      She stated it was not a question of letting people do at they have done or not changing the
PAGE 61                            CITY COUNCIL MINUTES                     SEPTEMBER 24, 2007


      rules, as that was next to impossible for them to figure out how to stop the grandfather
      clause ever.

      Mayor Meyers asked Councilmember Kuhn if she wanted answers to all those questions
      from City Attorney Rainey.

      Councilmember Kuhn stated she thinks the answers will be similar to what they were last
      time, which is that it is a mess and would take a lot to figure out.

      City Attorney Rainey stated very simply, yes, that is a problem with grandfathering
      clauses. He stated there are businesses that will change from a sole proprietor to a
      corporate status, where it is the same individual but they have now decided for various
      reasons it would be better to incorporate or form an LLC and they would then lose their
      grandfathering. He stated on the other hand, there will be corporations that are dissolved
      for one reason or another, maybe going back to a sole proprietor, so that is one of
      disadvantages with grandfathering clauses. He stated there may be pluses for them, as
      mentioned here tonight.

      Councilmember Distler stated the assumption keeps being made tonight that because
      80% of people are non-smokers are pro-ban. She stated most of the people who have
      contacted her, with the exception of around 13 people who were against the ban, were
      non-smokers. She stated if they truly feel it is a safety concern, the reason this is
      different to her than lead paint or something in water or food, or building ordinances,
      they can not tell by looking at those things if there was a health hazard, so that would be
      one thing that would be regulated. She stated if someone feels smoking is a health
      hazard, then when they walk into an environment, they know it is going to be there and if
      they do not want to expose themselves to it, they do not have to. She stated that is the
      difference to her. She stated people know it is there before they expose themselves to it.

      Councilmember Distler stated with regard to the possible loss in tax income, she is not
      overly concerned about that. She has seen where that has happened, but is sure all the
      people supporting this ordinance will also support the increase in their property taxes to
      cover the lost revenue from the business. She stated a lot of them have said they will be
      willing to pay more.

      TONY GILLETTE, 5622 Brownridge, stated he stands before the Council tonight as a
      mere patron. He stated he believes there is a choice that has not been discussed and that
      is not to enact any of these ordinances. He stated he keeps hearing people say they have
      to compromise and come up with something. He stated that he believes the other option
      is to do nothing and that is the way it should be.

      TONY GILLETTE stated this is not about being a health issue, but about freedom of
      choice. He stated he is not a business owner, but if he was or was thinking about being a
      business owner in this community or any other in the restaurant or entertainment
      business, he would not open his business here. He stated it is not a level playing field.
PAGE 62                             CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      TONY GILLETTE stated he does not believe they should fall prey to the slippery slope
      of the anti-smoking lobbyists. He stated he enjoys going to Barley‟s and other
      establishments without his family and he is a father of two. He stated he enjoys a cigar
      now and then. He stated it gets cold here in Kansas in the wintertime, if they have not
      noticed, so he likes to go to those establishments. He stated outside of those, he does not
      go to those establishments and stays in his backyard and enjoys it there after his children
      go to bed.

      TONY GILLETTE stated it is his personal choice and his freedom. He stated he thinks
      that is what America is all about – personal freedom of choice. He stated he does not
      think this government entity, state, local, or federal, should tell them what they should do
      with their entertainment dollars.

      Councilmember Sandifer stated he agrees with Mr. Gillette 100%, but reality still stands
      in their face here. He stated if they do not enact some type of a smoking ban, the public
      will enact one for them. He stated if they enact one themselves, they have possibly a
      little more leverage to help the public at this period of time. He stated he does not want
      to have a smoking ban, but realistically, as mentioned earlier by Councilmember Sawyer,
      for him to sit there and say they are not going to have one will be ridiculous, because they
      are going to have one. He stated it is going to be either one that is put up from the public,
      or one they can form and put together here. He asked if the people want an absolute, or
      one that might have some leeway. He stated that where he is at, at this point and asked
      the public not to hate them at the end of the night as they are doing the best they can on
      this issue.

      RAY ERLICHMAN, 7510 Garnett Street, stated something was mentioned about Rusty‟s
      watering hole earlier. He stated when they opened up, he thought it was a very good idea
      that they did open up as non-smoking because they did it on their own, but does believe
      that the smoking ban advocates apparently are not supporting that establishment and
      Rusty‟s has had to resort to creating smoking section.

      Councilmember Pflumm stated he was at Rusty‟s today and they did what Mr. Erlichman
      suggested outside.

      RAY ERLICHMAN stated when they first opened they were not even allowing smoking
      on their patio.

      Councilmember Pflumm stated he does not believe that is correct, but does not know the
      answer.

      RAY ERLICHMAN stated he interviewed the manager and that is what they said; people
      had to go out into the parking lot itself and get away from the doors. He stated gradually
      Rusty‟s did not get enough people of the non-smoking variety, even though there are
      80% of them out there to support it.

      Councilmember Pflumm stated he thought it was packed when he was there.
PAGE 63                             CITY COUNCIL MINUTES                       SEPTEMBER 24, 2007




      RAY ERLICHMAN stated they have more smokers in there now; that is why it is
      packed.

      DOROTHY GUTHRIE, 14070 W. 50th Street, stated she does not go to bars because she
      always thought bars were where people smoked. She stated if people were not
      patronizing that particular bar, they probably had the same attitude that she did. She
      stated one time she went to a bar in Lenexa and will be really glad when the No Smoking
      ban passes, because she would like to go there again and is the bar she will frequent,
      because there will be no smoking. She stated there was one smoker in that bar and there
      were probably 80 to 100 people in that bar on this particular night and no one was told
      they could not smoke. She stated there was one smoker and she can tell the Council that
      every time that man lit up, every time he lit up and she was a far away from him as the
      doors of the chambers and she could smell it. She stated it was annoying to her.

      DOROTHY GUTHRIE stated she has allergies and when her husband and she, whom she
      slept with, lived together she had severe allergies and had to have injections to live with
      him. She stated about 21 years ago, her husband quit smoking and she has not seen an
      allergist since. She stated (pointing at Councilmember Distler) that they can not tell her,
      that the facts that the Johnson County Health Department and Kansas Health Department
      presented to the Council on carcinogens that are left in smoking establishments do not
      affect one‟s health, because she does not believe it. She stated she knows because she
      has experienced it.

      DOROTHY GUTHRIE stated her son who was five years old had to go to the hospital
      twice for acute bronchitis when her husband was smoking. She stated after he quit
      smoking they no longer had any emergency hospital visits. She stated she knows the
      environment that people are in, whether they select to be in it or not, when it is filled with
      smoke or even people who smoke, because she could have told them who she was sitting
      by tonight in back of her that smokes and it is annoying. She stated it does not mean she
      does not like them or like their company.

      DOROTHY GUTHRIE stated when they were on vacation in Colorado Springs, they
      have a No Smoking ban and she does believe a level ban is a good idea, because then
      smokers have to decide if they are going to go to a bar, because all bars will not have
      smoking. She stated for the first time, she went to a bar and could tell the people who
      smoked, but enjoyed their company. She stated they were not smoking inside the bar,
      they couldn‟t, and they all had a great time and visited and she met some very nice
      people. She stated she does not get to meet these people because she chooses not to go to
      the bars, not that she would go all that often, but would like to be able to go and have a
      smoke free environment. She stated if she had known that place was smoke-free, maybe
      she would have been there, but most people know that bars have smokers. She stated that
      is why the non-smokers do not go. She stated they should advertise it, as they might be
      out there.
PAGE 64                           CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      Councilmember Pflumm asked Assistant to the City Manager Singer to read what the
      young ladies from Shawnee Mission Northwest left.

      City Manager Gonzales stated that will be fine. She stated there were several Shawnee
      Mission Northwest High School students here this evening who did want to speak, but
      the public comment portion started a little late and they had to leave.

      Assistant to the City Manager Singer read:

             Hi, my name is Ashley Burdolski. I live in Shawnee and attend Shawnee Mission
             Northwest where I am a member of the Student Council. By being here tonight,
             we wish to make an impact on the fact that this ban will affect everyone. There is
             no safe level of secondhand smoke. Being exposed to secondhand smoke kills
             about 38,000 nonsmokers every year. As teens, we will not stop eating at places
             where smoking isn’t allowed. On the contrary, we would like it more if smoking
             was prohibited. Studies show youth are less likely to smoke if they live in a smoke
             free community. We are not the first ones to pass a smoking ban. There are
             already 20+ states that are smoke free. It is time for us to become one of them.
             This poster shows that even though there are only three of us here, there are many
             more teens that would like to live smoke free.

             My name is Kelly Vogt. I am a Shawnee resident and a member of Shawnee
             Mission Northwest’s Student Council. The reason we are here today is simple.
             Even though we can not legally smoke, secondhand cigarette smoke affects us too.
             We all go out to eat in Shawnee even if we do not live there. Even if we are sitting
             in the non-smoking section of a restaurant for 2 hours, it is still equal to us
             smoking one and a half cigarettes. People say that they have a right to smoke in
             restaurants, but we have a right to not have our healthy put at risk because of
             something that we are not even doing.

             My name is Emily Lubarsky and I am a resident of Shawnee and a member of the
             Shawnee Mission Northwest Student Council. This summer, I and many teens I
             am friends with worked at restaurants. Smoking was permitted at the restaurant
             where I worked. When I got home I knew that my clothing smelled like smoke,
             what I didn’t know is that me and my friends could also be suffering long term
             damages. Just by working at restaurants that permit smoking for eight hours is
             equal to us smoking 16 cigarettes. That means if we work 3 days in the summer,
             we could be smoking about 48 cigarettes per week without ever putting one to our
             lips. Why should other people choosing to ruin their health affect us and our
             right to make money in a safe environment? Thank you for your time.

      CHRIS SUTTON stated he would suggest if they are going to do some type of a smoking
      ban that will cause the loss of income and profit to their businesses, that the City also
      consider a tax credit for them and/or some type of a program by which they will buy their
      businesses from them, because they spent 12 years, and in his case so many more years,
PAGE 65                            CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      building these businesses and any type of an alteration to the rules will impact him
      negatively from a profit standpoint.

      Councilmember Goode asked Mr. Sutton how many places he has in Overland Park since
      they established their ban.

      CHRIS SUTTON answered he has one at 119th and Quivira.

      Councilmember Goode stated it is a nice restaurant and frequents it quite a bit.

      CHRIS SUTTON stated they have two different HVAC systems, so they try to keep the
      smoke apart as much as possible.

      Councilmember Goode asked Mr. Sutton if he has noticed a difference with the ban.

      CHRIS SUTTON stated the band does not go into effect until January 2, 2008, but he is
      sure they will see a difference.

      Councilmember Straub asked Mr. Sutton brought up the same suggestion about the tax
      credits to Overland Park.

      CHRIS SUTTON answered yes and they did not go for it either, but he would like to be
      surprised.

      Mayor Meyers stated with no further comment, they will vote on the motion on the floor.
      He asked Councilmember Straub to restate the motion for clarity.

      Councilmember Straub stated he made a motion to enact the drafted City of Shawnee
      ordinance written up by the city attorneys with three exemptions to include allowing 25%
      of the rooms for smoking in hotels, tobacco shops, and outdoor dining.

      Councilmember Kuhn asked a procedural question. She stated if they vote NO to this
      ordinance, then they do another motion for something else, or if they want to consider
      adding the one-third percent, would they motion to add that amendment or make a
      completely separate motion.

      Mayor Meyers replied they can make a totally new motion if they want it made most
      clear. He stated he would make the motion the way Councilmember Kuhn wants it to be
      voted on.

      Therefore the motion read and a roll call vote was taken:

      Councilmember Straub, seconded by Councilmember Pflumm, moved to pass an
      ordinance to enact the proposed smoking ordinance presented by the Shawnee legal
      counsel prohibiting smoking in all public places, with the exception of 25% of the City‟s
      hotel rooms, inside tobacco shops, and on outdoor patio seating. The motion failed 2-6,
PAGE 66                             CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      with Councilmembers Pflumm and Straub voting aye and Councilmembers Scott,
      Sawyer, Goode, Kuhn, Sandifer, and Distler voting nay.

      Councilmember Scott stated she voted no, because she requires a percentage between
      eating and drinking.

      Councilmember Kuhn, seconded by Councilmember Sawyer, moved to pass an ordinance
      to enact the proposed smoking ordinance presented by the Shawnee legal counsel
      prohibiting smoking in all public places, with the exception of 25% of the City‟s hotel
      rooms, inside tobacco shops, and on outdoor patio seating, modifying the Shawnee
      Smoking Task Force‟s recommendation to allow less than 33% of gross receipts from the
      sale of food, and with this enforcement require signage for smoking and non-smoking
      areas in public areas.

      Councilmember Sandifer asked if they could add the recommendation on private clubs,
      which would make it for the Knights of Columbus or the American Legion.

      Councilmember Kuhn stated the Knights of Columbus will not be affected. She stated
      the American Legion will be able to fill out an application for exemption at City Hall
      based on their food services on premises being less than 33%.

      (Audience member) shouted out the American Legion does not serve food.

      Councilmember Kuhn stated that is her point, because less than 33% of their sales would
      be from food – in essence zero and would be able to fill out an exemption at City Hall
      and be held under this exemption as well.

      Councilmember Goode stated they will be able to smoke.

      Councilmember Kuhn replied that will be up to the private club to make that decision.

      Councilmember Distler stated she is not trying to be funny and asked again if they are
      going to exclude the Native Americans. She stated she was specifically asked that
      question. She stated that is a religious ritual to them.

      City Attorney Rainey stated he is not prepared to answer that question tonight.

      Councilmember Distler stated the way the ban currently states, it says to her that the
      Native Americans would not be able to perform this ritual.

      Mayor Meyers asked if it would be in their interest to include that specific situation.

      City Attorney Rainey answered he supposes, if they could come up with one that
      provides for use of it for religious purposes. He stated that will probably be decided in
      the courts at was due at the Supreme Court on a 5/4 vote without about half of them
      distaining and concurring. He stated there is not way he could give them a meaningful
PAGE 67                            CITY COUNCIL MINUTES                     SEPTEMBER 24, 2007


      answer as whether or not that would affect the constutionality of it. He feels it would be
      better to keep that as a separate matter and look at it at another time when they could
      study it and if they felt there was legitimate reason for it, from a legal standpoint, they
      could recommend it if the Governing Body wishes to bring it up.

      Mayor Meyers stated unless someone complained about that situation, it would never
      come before them.

      Councilmember Distler stated it has been brought up, so that is why she brought it up
      tonight.

      Mayor Meyers asked if it has been brought up as a complaint.

      Councilmember Distler answered no, because after looking at the ordinance on the web
      site, they said that is going to impact their religious ritual.

      Councilmember Kuhn stated she would be very open, as they do with some of the other
      ordinances, to not modifying her motion tonight, but asking staff to look into that as a
      future modification or ordinance, like they have done with other things. She stated she
      thinks it has very limited applicability to the overall smoking ordinance issue, but is
      certainly something she would like to see staff address.

      Councilmember Goode asked when they use the word „modify‟, what timeframe they are
      talking about.

      Councilmember Kuhn replied this is only in reference to the Native American religious
      ritual. She stated that is the only one she is talking about – asking staff to please look
      into that specific limited application and let the Council know what they find out. She
      stated in the same way, she was uncomfortable voting in favor of an ordinance that she
      did not feel that their legal council had signed off on and would feel uncomfortable
      modifying that motion knowing it had not been properly investigated.

      Assistant City Manager Charlesworth stated she would clarify as the motion is written
      right now, they say drinking establishments. She stated in looking at the ordinance as
      drinking establishments are defined, it is just drinking establishments licensed by the
      State which would exclude private clubs who have sales of 30% and exclude private
      clubs altogether. She stated it would also include the businesses that are licensed CMB.
      She stated they might want to expand the motion to read drinking establishments, private
      clubs, or businesses licensed as CMB.

      Councilmember Kuhn asked Assistant City Manager Charlesworth if they would then use
      the 33% criteria.

      Assistant City Manager Charlesworth answered yes.

      Councilmember Kuhn stated she would modify her motion to read as such.
PAGE 68                             CITY COUNCIL MINUTES                       SEPTEMBER 24, 2007




      Councilmember Sawyer stated he would second the modification.

      Councilmember Pflumm stated he is probably the person who started this smoking
      discussion six years ago and they are finally getting around to possibly doing something
      positive. He stated he does not believe this is what the majority of the cities are going to,
      but is a compromise. He stated he would have liked to have seen something more along
      the lines of a total ban, but does not want to hurt any businesses. He stated he believes
      this is something for the betterment of all people. He stated he has to support this,
      because it is a step in the right direction, although it does not work out for certain
      establishments like Barley‟s, but does work for others. He stated he does agree that this
      does not create a level playing field within this city.

      Councilmember Pflumm stated many of the complaints were with the smoking ban
      earlier on, that it was not a level playing field with their neighboring cities or neighboring
      counties, but here they are doing the same thing in this city, but it seems this is the only
      way they are going to get anything passed.

      Councilmember Straub stated he is going to vote for it, because he knows they need to
      make a motion and need a No Smoking ban. He stated he thinks several of the council
      people, as Steve Rose said, did not have the guts to go ahead and just do what is best for
      the public with the health issue. He stated people who are working in these
      establishments are still going to be around smoke, so they are not doing what they are
      supposed to be doing in his opinion, but does think it is a step in the right direction.

      Councilmember Sawyer stated they keep bringing up Steve Rose and he thinks he read
      that article a little differently, but Steve is not here to defend himself one way or the
      other. He stated he is sure not going to say what he meant. He stated he took his article
      to mean the people of Kansas City, Missouri need to step up to the plate. He stated those
      are the people he is concerned about – the people of Kansas City, Missouri and Kansas
      City, Kansas who have not stepped up to the plate. He stated Merriam and Mission have
      not stepped up to the plate and they economically affect Shawnee‟s businesses.

      Councilmember Sawyer agrees that it is a health issue and understands that whole
      heartedly and it has to be dealt with. He believes they are taking a small step in the right
      direction tonight. He asked if it is the step that will be taken in the future and answered
      he believes not, because he believes it will move on forward from here. He does not
      know if he can sit up here tonight and make comment on what Steve Rose meant in his
      editorial.

      Councilmember Straub stated normally he disagrees with Mr. Rose, but what he read out
      of it, is that he actually said that the City Council needs to step up to the plate and stand
      for what they believe in and make a motion. He stated that is exactly what he has done
      three times and thinks they should have a smoke-free city, as far as public areas and that
      is what he believes. He stated whatever Steve Rose said or meant is what he believes.
      He stated he thinks they are all bowing down to „Oh no, Wyandotte County is not doing
PAGE 69                            CITY COUNCIL MINUTES                      SEPTEMBER 24, 2007


      this or Merriam is not doing that and if they are not doing it we can not do it, but if they
      do it, then we will do it because it is what we really should do, but because they are not
      doing it we can‟t‟. He stated he is willing to go ahead and make that change. He stated
      he is going to make a compromise tonight because he wants a smoking ban in the City
      and it is a step in the right direction.

      Therefore the motion read and a roll call vote was taken:

      Councilmember Kuhn, seconded by Councilmember Sawyer, moved to pass an ordinance
      to enact the ordinance included in the agenda packet prohibiting smoking in all public
      places, with the exception of 25% of the City‟s hotel rooms, inside tobacco shops, and on
      outdoor patio seating, modifying the Shawnee Smoking Task Force‟s recommendation to
      allow less than 33% of gross receipts from the sale of food, and with this enforcement
      require signage for smoking and non-smoking areas in public areas, drinking
      establishments, private clubs, or businesses licensed for the sale of Cereal Malt Beverage.
      The motion carried 7-1, with Councilmembers Scott, Pflumm, Sawyer, Goode, Kuhn,
      Straub, and Sandifer voting aye and Councilmember Distler voting nay. Having passed,
      Ordinance 2860 was assigned.

ITEMS FROM THE PLANNING COMMISSION MEETING OF SEPTEMBER 5, 2007

11.   CONSIDER ACCEPTANCE OF DEDICATIONS OF LAND FOR PUBLIC
      PURPOSES CONTAINED IN FP-18-07-09, FINAL PLAT FOR REGHAN PLACE,
      4TH PLAT, 6300 BLOCK OF LACKMAN ROAD.

      Mayor Meyers stated that FP-18-07-09, the Final Plat of Reghan Place, 4th Plat, was
      approved by the Planning Commission and is forwarded to the Governing Body for
      acceptance of the dedications of land for public purposes. The Planning Commission staff
      report is enclosed for review for the Governing Body's information. The Planning
      Commission voted 9-0 to approve the Final Plat and to recommend that the Governing
      Body accept the dedications.

      EDWARD DANIELS, MHS, stated he represents Sean McGaw. He stated he is here to
      answer any questions.

      Councilmember Goode, seconded by Councilmember Kuhn, moved to accept the
      dedications of land for public purposes contained in FP-18-07-09, the Final Plat of
      Reghan Place, 4th Plat, 6300 block of Lackman Road. The motion carried 8-0.

BUSINESS FROM THE FLOOR

(Audience Member) asked when the smoking ordinance takes effect.

Councilmember Kuhn replied on January 2, 2008.

STAFF ITEMS
PAGE 70                            CITY COUNCIL MINUTES                   SEPTEMBER 24, 2007




12.   CONSIDER LEGAL PUBLICATIONS.

      Mayor Meyers stated in September 2004, the City Council designated the Shawnee
      Dispatch as the City's primary official legal publications. City staff surveyed several
      newspapers regarding the cost of legal publications. The Shawnee Dispatch has the
      lowest cost of the newspapers with a general circulation in the City.

      Councilmember Pflumm, seconded by Councilmember Goode, moved to take no action
      and the Shawnee Dispatch will continue to be the City's primary designated legal
      publication.

      Councilmember Kuhn stated it is nice to see that the promises the Dispatch made to be an
      active member of the community, as well as the legal publisher has been kept and that is
      a major plus in a business establishment.

      Councilmember Sawyer mentioned the fact that they moved their office to Shawnee.

      Therefore the motion read:

      Councilmember Pflumm, seconded by Councilmember Goode, moved to take no action
      and the Shawnee Dispatch will continue to be the City's primary designated legal
      publication. The motion carried.

MISCELLANEOUS ITEMS

13.   CONSIDER APPROVAL OF SEMI-MONTHLY CLAIM FOR SEPTEMBER 24,
      2007, IN THE AMOUNT OF $3,999,817.14.

      Councilmember Pflumm, seconded by Councilmember Scott, moved to approve the
      semi-monthly claim for September 24, 2007, in the amount of $3,999,817.14. The
      motion carried 8-0.

14.   MISCELLANEOUS COUNCIL ITEMS.

      There were no miscellaneous Council items.
PAGE 71                           CITY COUNCIL MINUTES          SEPTEMBER 24, 2007


ADJOURNMENT

Councilmember Goode, seconded by Councilmember Kuhn, moved to adjourn. The motion
carried 8-0, and the meeting adjourned at 11:16 p.m.

Minutes prepared by: Cindy Terrell, Recording Secretary

APPROVED BY:




_____________________________________________
Vicki Charlesworth, City Clerk

				
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