Loading...
06 June 2005 Special MINUTES OF THE VAN BUREN, ARKANSAS SPECIAL CITY COUNCIL MEETING HELD JUNE 22, 2005 A special called meeting of the City Council of the City of Van Buren, Arkansas met at 7:00 p.m., on Wednesday 22, 2005 at City Hall. The meeting was called to order by Mayor John Riggs, presiding officer. Council members present were Alderman Swaim, Parker, Moore, Dodd, Spoon and Sagely. City Clerk Barbie Curtis and City Attorney Candice Settle were also present. This made a total of nine (9) present. A quorum was declared. The Mayor ordered spread upon the minutes, the "NOTICE OF SPECIAL MEETING, CERTIFICATE OF SERVICE OF NOTICE AND THE WAIVER OF REGULAR NOTICE OF AND CONSENT TO SPECIAL MEETING." NOTICE OF SPECIAL MEETING NOTICE OF SPECIAL MEETING TO THE CITY COUNCILMEN OF THE CITY OF VAN BUREN, ARKANSAS Notice is hereby given that a Special Meeting of the City Council of the City of Van Buren, Arkansas, will be held at the Municipal Complex at 6:00 P.M. on Wednesday, June 22, 2005, for the following purpose: 1. Discussion ofthe law suit filed against the City of Van Buren by Mike Cormack. JOHN 'IeGS, CERTIFICATE OF SERVICE OF NOTICE I, Barbie Curtis, the duly appointed City Clerk-Treasurer of the City of Van Buren, DO HEREBY CERTIFY that on the 22nd day of June, 2005, I served a true copy of the foregoing Notice of Special Meeting to each and every Councilman of the City of Van Buren, Arkansas, by handing a copy to each, in the manner provided in the By-Laws. IC‘,6144/11._; , =BARBIE_CURTIS CITY CLERK-TREASURER WAIVER OF REGULAR NOTICE OF AND CONSENT TO SPECIAL MEETING We, the undersigned City Councilmen of the City of Van Buren, Arkansas, do hereby accept service of the NOTICE OF SPECIAL MEETING waiving any and all irregularities in such Service and in such Notice and Consent agree that the said City Councilmen of the City of Van Buren, Arkansas, shall meet at the time and place named in such Notice and for the purpose stated therein. _ 011110111 111 .!. NOTICE OF SPECIAL MEETING NOTICE OF SPECIAL MEETING TO THE CITY COUNCILMEN OF THE CITY OF VAN BUREN, ARKANSAS Notice is hereby given that a Special Meeting of the City Council of the City of Van Buren, Arkansas, will be held at the Municipal Complex at 6:00 P.M. on Wednesday, June 22, 2005, for the following purpose: 1. Discussion of. the law suit filed against the City of Van Buren by Mike Cormack. JOHN :IeGS, ' 11 CERTIFICATE OF SERVICE OF NOTICE I, Barbie Curtis, the duly appointed City Clerk-Treasurer of the City of Van Buren, DO HEREBY CERTIFY that on the 22nd day of June, 2005, I served a true copy of the foregoing Notice of Special Meeting to each and every Councilman of the City of Van Buren, Arkansas, by handing a copy to each, in the manner provided in the By-Laws. (SX6ZW2C.A; , /11,02til _BARBIE--.CURTIS CITY CLERK-TREASURER WA1v1R OF REGULAR NOTICE OF AND CONSENT TO SPECIAL MEETING • We, the undersigned City Councilmen of the City of Van Buren, Arkansas, do hereby accept service of the NOTICE OF SPECIAL MEETING waiving any and all irregularities in such Service and in such Notice and Consent agree that the said City Councilmen of the City of Van Buren, Arkansas, shall meet at the time and place named in such Notice and for the purpose stated therein. The Mayor said they needed to make a decision on the issue of the firework sales on Mr. Commack's property. Mayor Riggs said he wanted to do what was right and abide by the law. He asked that the Council members take the advice of the legal council. Attorney Mike Mosley, with the Arkansas Municipal League Legal Department spoke, saying he wanted to discuss the underlying facts regarding the lawsuit. He said basically after the annexation of certain properties in 2004 at least one property owner came into the purview of the City Ordinance regarding prohibition against selling fire works. He said Mr. Cormack was in a lease agreement with an individual who sells fireworks on his property and it was not his business. He said what they had was a request of the Federal Judge to keep the City and City officers from enforcing the fireworks ordinance on Mr. Connack, which was filed by Kevin Holmes, Attorney for Mike Cormack and Mr. Jenkins of Jenkins Law Finn. He said there was a hearing scheduled for Friday at 2:00 p.m. in front of Judge Robert Dawson in Fort Smith as to whether or not the injunction should be granted. He said the injunction would mean the City Officials could not enforce the ordinance against Mr. Cormack, if he prevails on Friday. He said there was also an underlying complaint that was connected with the injunction that would cover the future operation of the fireworks stand on his property and what he believed he was entitled to. He said there was a rough settlement offer by Mr. Cormack City Clerk, Barbie Curtis asked if the preliminary injunction was only for the present year or was it for next year also. Attorney Mosley said the injunction was only for the present year. He said the underlying complaint would deal with next year, basically Mr. Cormack was arguing that it had been an unconstitutional taking of his property. Attorney Mosley said he had responded today by a facsimile brief to Judge Dawson to the preliminary injunction. He said he believes there were some reasons why they couldn't take this action into Federal Court and that was the basis that he had responded on, requesting that they not hear the injunction because the court does not have jurisdiction in Federal Court. There has also been a state injunction filed against Mr. Cormack to prevent him from selling the fireworks. Mr. Cormack's settlement offer requested $9,000 and the two(2) charges for operating a fireworks stand in violation of the City Code Ordinance against Mike Cormack and another individual dropped, also to be allowed to sell his fireworks for the present year. Mr. Mosley said that would only deal with the preliminary injunction and not deal with the underlying complaint or any issues regarding next year and the subsequent years. He said Mr. Comack said his lease agreement to sell fireworks was for ten(10)years with a twenty(20)year option, which would cany him to 2019. Attorney Mosley said the underlying issue was whether in future years there would be enforcement of the code prohibiting the firework sales. He said the settlement offer had to do with this year and the preliminary injunction. Attorney Mosley said it had been told to him, that in the last three(3) days Mr. Cormack had lost an estimated $8,000, which he has agreed to $4,000 for purposes of settlement. Mr. Mosley said Mr. Cormack's Attorney had stated that the attorney fees were $4,500, which he agreed to reduce to $3,500 and also requesting $1,500 for the purpose of advertisement for this year, advertising that he was in fact open for this year. Mr. Mosley said he also wanted the two(2)tickets be dropped and be allowed to sell fireworks. Mr. Mosley said the options were that they could take a wait and see approach or they could pursue their defense in Federal Court to the injunction on Friday. He said there was also a preliminary hearing scheduled on Wednesday before the State Circuit Judge on the City's petition for an injunction and continuing to enforce the Ordinance against the property in question. Mr. Mosley said the second option would be to agree to the settlement terms or make a counter offer. He said the third option would be to allow the business to go ahead and sell fireworks this year, starting tomorrow. Mr. Mosley said the hearing was scheduled for Friday and asked if there were any questions. Alderman Spoon said they have three options, which were agree to settlement, take options and agree to settlement and the third option was to allow the going ahead with the selling of the fireworks. Attorney Mosley explained the first two options, one was don't agree to the settlement and go to court on Friday and go to court on Wednesday and continue to enforce the Ordinance as is. The second one was agree to the settle with a counter offer and the third one is don't agree to the settlement and don't counter offer but allow him to sell fireworks this year, which would officially moot the request for a preliminary injunction. Alderman Swaim asked what their exposure was on option number one. Attorney Mosley said it was uncertain at this time. He said he had seen no documentation at this time from the plaintiff or the plaintiff's council Mr. Holmes regarding what the terms of the lease agreement were or what his profit was last year for instance or any evidence of any $8,000 figure that Mr. Connack had told hint he had lost. Attorney Mosley said he could not give an exact dollar figure. Attorney Mosley said assuming at the end of the day they loose. Alderman Swaim asked about a ballpark figure. Attorney Mosley said he couldn't do an accurate ballpark figure. He said if you take for granted his $8,000 for the two and half (2 'A)days and figure it by doing the math through July 10 you would have that answer. Alderman Swaim said twenty(20)times $4,000 would be $80,000 if Attorney Mosley was talking about the full twenty(20)days. Alderman Swaim said he was talking about one of Attorney Mosley's options on the ten(10) days from the beginning of the time the fireworks were to be sold until the time they were scheduled to go to court. Attorney Mosley said they go to court on Friday and also court was scheduled on the next Wednesday. He said they would know then if the preliminary injunction would or would not be issued on Friday when they go to court. Attorney Mosley said he would have to see the documentation from Mr. Cormack. Alderman Swaim said then they were being asked to make a decision on incomplete information. Attorney Mosley said he thought the decision could be made based upon their view of correctness of what had been done thus far. He said if they think that is within their police powers as a city and if they want to continue to enforce the ordinance and follow through, then they should go to court and let the Judge decide. Alderman Swaim said this ordinance had been in effect since 1948 and to suddenly say go ahead and violate it would be fine. Alderman Swaim said to him that would be ridicules. Attorney Mosley said Mr. Cormack was selling the fireworks before the ordinance applied and therefore Mr. Cormack thinks he should be grand fathered in. Attorney Mosley said about the question of whether or not he thinks legally they would have exposure in the case, he wanted the Council to know their options and that there was always an outside chance of exposure. Alderman Parker asked what his recommendation was. Attorney Mosley said his recommendation was one of two (2)things. One was to not settle the case for the preliminary injunction and to let Mr. Cormack sell the fireworks this year or two was to stick to their guns and go to Court on Friday and let the Judge decide the preliminary injunction issue. He said if the Judge decides on Friday that a preliminary injunction should be issued in the case then the Judge could say they have to let him sell the fireworks for the rest of the season. Attorney Mosley said if the Judge agrees with the City then they can go ahead and enforce the ordinance as is. He said whether the Judge said it should or should not be an injunction against the city does not necessarily pass upon the underlying case and the underlying merits in whether there is exposure in the long haul. Attorney Mosley said it was a different issue of right and wrong for the injunction than the underlying complaint that will continue on into the future. Alderman Swaim said if they do not go forward then we'll face the same thing again at Christmas. Alderman Sagely said if they let him go ahead and sell fireworks this year would that be opening up a can of worms where all the rest of the annexations could do the same. Attorney Mosley said that was why one of his suggestions was to go to court. Attorney Mosley said there were people out there that have had ordinances filed against them because of annexations. Alderman Moore said wouldn't that make the ordinance null and void and open it up to everyone. Attorney Mosley said this does not pass upon the validity of the ordinance. He said it passed upon the applicability of the ordinance. Alderman Moore asked how strong the case was. Attorney Mosley said he did not want to prejudice his client, the City, by divulging his legal theory in public. Alderman Swaim asked him to repeat the answer. Attorney Mosley said he did not want to answer that question in public. He said he intended to effectively represent the city and would not be representative of his basis of knowledge at this point. Alderman Dodd asked what liability the city would have if there were some unforeseen disaster. Attorney Mosley said he did not know. He said this was not a good safety and health issue. Mayor Riggs said they needed to make a decision and he needed the Council's guidance. Alderman Swaim seconded by Alderman Moore made a motion to uphold the Ordinance and go through the court system. The Council followed with a unanimous vote. Attorney Mosley thanked the members of the Council. There being no further business, motion was made by Alderman Swaim and seconded by Alderman Moore to adjourn. The Council members followed with a unanimous vote. The meeting adjourned at 7:00 p.m. APPROVED: ATTESTED: MAYOR LAf,c..L CITY CLERK-TREASURER