Ann Rubin again. Councilman O'Neill, I appreciate your concern for the district, and correct me if I'm wrong but I don't remember that you've been here for any of the testimony over these past four years on this.
I don't have to be here for any testimony, Miss Rubin, and I resent the implication that I haven't been involved in this. We did this bill years ago. Nothing has changed as far as the residents of my district are concerned, Realtors notwithstanding, okay?
Okay, I just want to bring back to the Council's attention that you do have in your hands petitions signed by the real-estate community in the Northeast section of Philadelphia that do business there that speak to the buyers 58 12/8/99 RULES - BILL 990678 and sellers up there that do support this bill. And, again, we want the bill passed with no additional amendments.
Are there any other questions from members of the committee? (No further questions.)
Is there anyone else who wants to testify on Bill 26? (No response.)
The clerk will please read the title of Bill No. 990678.
An ordinance amending Title 14 of the Philadelphia Code relating to zoning and planning by amending Chapter 14-1600, entitled "Miscellaneous," by adding a new Section 14-1617, entitled "Fifth Street Special District Controls," under certain terms and conditions.
Is there anyone here from the City Planning Commission to testify on this bill? 59 12/8/99 RULES - BILL 990678
Good morning, Madam Chair and members of the committee. My name is Richard Lombardo of the City Planning Commission. I'm actually not here to testify on this bill. In the rush, with all the that are bills being heard at the end of the administration we did not consider this -- the Commission did not consider this bill, so we have no position of the Planning Commission on this bill. I mean, what I understand about the bill is that the Councilwoman put this in at the request of neighbors and business people along Fifth Street, but unfortunately, I can't make a recommendation from the Planning Commission one way or the other on this bill.
Prohibiting wholesale vending. Can somebody give me an explanation as to what "wholesale vending" is?
Wholesale vending would be not be selling to the ultimate consumer, the customer. You know, a wholesale operation would more likely be selling in case lots or in larger quantities, though, to retailers, as opposed to selling to customers. For example, some of these 60 12/8/99 RULES - BILL 990678 -- again, every neighborhood has these cash-and- carry food operations.
Do we know how many wholesale vending businesses there are on Fifth Street?
I have no idea. A lot of the area covered in this overlay is zoned residential so I assume there's no commercial activity going on in those properties. I think that there have been some wholesale uses granted by the Zoning Board for a variance in this area where this has been protestants and the Zoning Board is still granting them over the protestants, and that may be what's generating this bill.
Do you know if the Law Department has been consulted on this issue?
I do not know. I'm sorry, we prepared this bill at the request of the Councilwoman's office. You know, we do a drafting service for any Member of Council. And I don't know if then the Councilwoman sent it to the Law Department or not. You know, I don't know what 61 12/8/99 RULES - BILL 990719 her normal practice is once we prepare a bill and give it to her.
All right. Do we have anyone else to testify on this bill? (No response.)
May I suggest that we go over this until such time as we contact Councilwoman Tasco's office to get more information on it. The next bill being called for consideration is Bill No. 990719. The clerk will read the title of the bill.
An ordinance amending Section 14-1705 of the Philadelphia Code, entitled "Appeals to Zoning Board of Adjustment," by providing that appeals to the Zoning Board of Adjustment shall not stay proceedings in furtherance of the action appealed from, under certain terms and conditions.
Good morning, again, Madam Chair and Councilmembers, members of the committee. My name is Richard Lombardo from the City Planning Commission, here today to testify on Bill 990719. 62 12/8/99 RULES - BILL 990719 This bill amends Section 14-1705, dealing with appeals to the Zoning Board of Adjustment. The purpose of this bill is to clarify that an appeal to the Zoning Board of Adjustment does not stay other proceedings against property owner or business operator who has been cited for code violations. Currently, the language of the Code creates an ambiguity as to whether court proceedings, such as an action to enforce a cease-operation order, should move forward once an applicant has an appeal to the Zoning Board. It is the intention of this bill to clarify those provisions so that other proceedings can continue to take place when the applicant proceeds to the Zoning Board. Basically, you may have a property that, among other violations it has, it has also a zoning violation -- it didn't get a use registration permit, they don't have an appropriate setback or they didn't get a zoning permit for an addition, and because the regulations construed to say, If you file for your zoning appeal, it stays the Department from taking 63 12/8/99 RULES - BILL 990719 other actions, and I think this bill is to clarify that, that if there are separate other issues not related the to the Zoning Board appeal, that those can move forward while you resolve your one problem with the Zoning Board of Adjustment, or try to resolve it. And this bill was introduced by Councilman DiCicco and -- Councilmember DiCicco and Councilmember Nutter. And for the record, the Planning Commission, on December 2, 1999, recommends approval of this bill.
Are there any questions from members of the committee? The Chair recognizes Councilman Cohen. Mr. Lombardo, please stay with us.
I'd just like to know if there's going to be any witnesses testifying on the bill. It sounds good to me, but I'd like to hear what brought this about.
Do we have any witnesses to testify on this bill?
The Chair 64 12/8/99 RULES - BILL 990719 recognizes Councilman Nutter.
Thank you, Madam Chair. Thank you, Councilman Cohen for the question. And I do believe that there are a couple of community people here to testify. What brought about this particular bill 8 is the common experience that many of us have wherein a person builds or constructs or does something to their property with no permits usually and proceeds to do whatever it is that they do, the neighbors complain to their Councilperson, contact L&I, they send a person out and, yes, they are in violation of a Zoning Code. The current code, the way it operates, that person then goes to get their permits. They are then, of course, denied because the proper zoning's not in place. They then appeal to the Zoning Board of Adjustment. The current code is constructed such that the moment you appeal to the Zoning Board, it effectively stays any action, enforcement action, by L&I against that person. So they get a free ride now to continue doing what they've doing, even though they now fully know -- even if they 65 12/8/99 RULES - BILL 990719 didn't know. They have now applied for permits, so they clearly know that they are in violation of the Zoning Code and they continue to use the premises in that fashion, while L&I has to sit twiddling their thumbs, waiting for an appeal to go through the Zoning Board. To get to the Zoning Board, the Zoning Board takes the testimony, community opposition. They tell them, Go back and have some meetings. That goes on for a month or so, then they come back. Then the person, maybe they lose at Zoning, the applicant. Then they naturally have a right to appeal to the Common Please Court. But they continue to use the premises in an illegal fashion. And, again, the Licenses and Inspections is prevented from doing anything with that person. This bill seeks to prevent that kind of practice. People use the system generally because it's easier to ask forgiveness than it is to ask permission.
I think you described a very common complaint among people out in the communities.
Thank you. Thanks, 66 12/8/99 RULES - BILL 990719 Councilwoman.
Please identify yourself for the record and proceed with your testimony.
Good morning, Council President Verna and members of the committee. I am Otis Haigler, Jr., Legislative and Regulatory Affairs Manager for the Department of Licenses and Inspections. Today I'm here to provide testimony on Bill No. 990719, amending Section 14-1705 of the Philadelphia Zoning Code by providing that appeals to the Zoning Board of Adjustments shall not stay proceedings in the furtherance of the actions appealed from. The Department of Licenses and Inspections has serious concerns regarding our ability to enforce the requirements of this bill. As written, the bill would require that Licenses and Inspections continue its enforcement actions against persons who are in violation of the zoning 67 12/8/99 RULES - BILL 990719 code, even if the person has exercised their right to appeal the violation. Currently, as stipulated under the present requirements of the Code, Section 14-1705, Subsection 4, the Department's policy has been to stay its enforcement of the action which precipitated the issuance of the refusal and appeal to the Zoning Board. The reason for this was to afford the appellant the opportunity to address their grievance of the City's requirement before the proper administrative board that has the power to grant a variance to waive the refused use or requirement. In areas where the continued use or activity constitutes an immediate threat to public health, safety or general welfare, the Department has proceeded with its enforcement action, in the interest of protecting public health, safety, and welfare. This provision is in line with the other provisions of the Philadelphia Code that are enforced by Licenses and Inspections and has been universally enforced for other issues such as building, fire and business regulatory. 68 12/8/99 RULES - BILL 990719 Under the Administrative Code Section 3 A-805.2 of the Philadelphia Administrative Code, it states that "an appeal shall not constitute a stay of proceedings by the Department or Fire Department, where either Department finds and certifies in writing that the violation is intentional or that there exists a condition of immediate danger or hazard to health, safety or welfare, which requires immediate compliance." This provision applies to all of the technical codes that are enforced by the Department, including the Zoning Code. Bill 990719, if enacted, would generate additional hardship for property owners and businesses that are seeking legal relief from our requirements. It will also cause confusion within the Department, due to the simultaneous actions of the Department related to enforcement and appeals. As an example, currently, if the issue that precipitated the variance request is stayed, we do not prosecute the matter in the court system until the Board handling of the appeal or the Board handling of the appeal renders a decision. Under the provision of Bill 990719, we 69 12/8/99 RULES - BILL 990719 would have to proceed with prosecuting the matter in the court system, which, in turn, could issue an order in favor of the City or appellant, or the court could remand the case back to the Department until a decision is made on the appeal. Either way, the bill will tie up the court schedule with cases that have been, and can be, handled administratively by the Zoning Board of Adjustment. The Department of Licenses and Inspections strongly urges Council to withdraw or table this bill until such time that the bill can be fully studied to determine the impact it will have on our department and the public that we serve. Thank you. I'll be happy to answer any questions that you may have at this time.
Good morning, members of City Council and the committee. I do want to -- I'm Gray Smith, and I'm the Zoning and Code Enforcement Chairman of the South Street Neighborhood Association, where we have almost 70 12/8/99 RULES - BILL 990719 daily some zoning controversy that comes up, including those similar to the scenario that Councilman Nutter defined. And when I first saw this bill, because of the difficulty in the language and because it seems to be aimed at a specific problem rather than at many problems that exist both in the procedures of the Zoning Board as well as the enforcement capabilities of Licenses and Inspections, which, although Mr. Haigler brags about them, I would question as being so efficient. Our initial concern was that the amount of work that would be imposed upon community organizations and the Zoning Board, particularly of a legal nature, would be enlarged by the nature of this ordinance, because it requires legal decisions to be made by the Zoning Board, which may impose too much of a burden on them, since they are not a judicial body, essentially. On the other hand, Councilman Nutter's concern is our concern, and we agree that the language that is in the bill right now will help resolve that problem. I believe, however, not with changing 71 12/8/99 RULES - BILL 990719 the bill or the language in the bill, that we need to also focus on another scenario, which I had discussed with Councilman Nutter last night, when we finally got a chance to talk about this bill. And that was that was when Licenses and Inspections issues a permit for zoning over the counter, without a hearing, for a use that may actually be prohibited in a zoning area -- and it's happened many, many times, particularly when there's zoning overlays, and there's a lot of those now, which many examiners don't seem to be familiar with at L&I. And the community sees a business open up which is adverse to the community and is prohibited by the Zoning Code, the community then has to file an appeal to the Zoning Board because efforts through the Department of Licenses and Inspections' enforcement tend to be very defensive rather than aggressive on behalf of the community, because, after all, L&I's the one who issued the permit. So once one appeals, the business continues to operate. There is no stay because -- and in this bill and, I guess, because of the inaction of L&I, there is no stay against that 72 12/8/99 RULES - BILL 990719 business operating. And it could take as many as five to six months to achieve a rejection of that zoning permit. And all I'm saying today is that we need to incorporate, in perhaps another ordinance 7 or another amendment at a future date, some language that deals with that scenario as well. And I do want to thank Councilman DiCicco, who's our City Councilperson, and Councilman Nutter, who both probably are extremely aggressive in zoning issues on behalf of the community, for introducing this bill.
All right. My name is Stanley Krakower. I'm a lawyer who represents a number of civic associations, community groups, residents groups, etc., in land-use matters throughout the City, particularly with regard to zoning. The problem that's involved in this amendment to Section 17-05 is one that I deal with 73 12/8/99 RULES - BILL 990719 frequently. I, first of all, wholeheartedly concur with the objective which Councilman Nutter and Councilman DiCicco seek to obtain via this bill, but like Mr. Smith, I have questions as to whether the exact language by which the bill seeks to do it is -- tends to be successful at it, and may raise some additional side problems. My concern is twofold. Number one, where a permit is issued across the counter to an applicant, it should not be issued for any one of a number of reasons. The civic associations become the appellant to the Zoning Board to have that permit stricken. During the interim time, as the bill now -- the language of the act now stands, at least it appears, whether it's intended legally or not, it appears to prevent continuing permits from being issued to that zoning permit holder. What you have frequently is, a zoning permit is issued and then, before that permit holder can get building permits, the appeal is taken and puts a halt to that. Now, here, the bill would make it clear that in the interim, while the matter is pending to get to the Zoning 74 12/8/99 RULES - BILL 990719 Board, the permit holder can continue to get building permits or even start construction, though there may be some risks to that. But I just think that the procedure should be made more clear that than it is right now. I also have a concern as to whether simply amending the Zoning Code will have the effect in Municipal Court where, frequently, L&I is engaging in an enforcement action against some violation of the Zoning Code or the building code. And then when you get to Municipal Court, the judges stay the action on request of the defendant because there is a matter pending -- an appeal is pending before the Zoning Board. So that while it's before the Zoning Board, there can be no continued prosecution before Municipal Court. Well if there's not something done with regard to the rules of Municipal Court and with regard to that type of procedure, as I look at this bill, it talks about -- I think the exact language is the action -- let me see if I have a draft of that proposal. It doesn't appear to me to be clear 75 12/8/99 RULES - BILL 990719 enough that it will impact on the Municipal Court enforcement action, and I would like to see the language tightened up to make sure that it addresses the very problem it's intended to address. So my only concern is that while I wholeheartedly agree with the purposes for which the change is being sought, the purpose both by Councilman DiCicco and Councilman Nutter, I have questions as to whether the language is fine-tuned sufficiently to do that. And perhaps the answer could be that the improvement that we get out of this bill could then be further improved by a subsequent amendment at another time, if we wanted to do that. The language that I'm talking about says that an appeal to the Zoning Board of Adjustment shall not stay any proceedings in furtherance of the action appealed from. And that's my concern -- that in furtherance of the action appealed from, it may not be clear enough. Thank you.
A couple of important items have been raised by the community people at the table, and I'd like to ask if Richie Feder from the City's Law Department could come up and provide both explanation and some clarification and what the actual implementation of the law is.
By all means. Mr. Feder? (Richard Feder comes forward.)
Mr. Feder, before you begin, Madam Chair, I also want to at least put on the record that Councilman DiCicco and I have, somewhat amazingly, been working on the same issue at the same time, unknown to each other. And not only because of our common experience with this particular issue, but as a result of conversations with other staff people at L&I, these issues were raised to us as problems for them. So -- I mean, I heard the testimony earlier. I respect Mr. Haigler, and I know he comes from the legislative affairs side of the house, but there are at least some individuals in 77 12/8/99 RULES - BILL 990719 L&I who, I guess, are on the front lines of this action, who the Councilman and I have had discussions with. And some of this emanates from discussions with people in L&I. So, I mean, we'll get that situation straightened out. But, Mr. Feder, can you respond to the issues as raised by Mr. Smith and by Mr. Krakower.
Certainly. Thank you, Councilman. Thank you, Madam Chair. My name is Richard Feder, I'm the Chief Deputy for Legislation in the City Solicitor's Office. I'd like to clarify that I'm not here to testify in favor of the bill or against the bill; I'm here to answer questions to explain the bill.
The bill, as currently drafted, would clarify -- because there apparently has been uncertainty as to what the code currently provides. The bill would clarify that if L&I were to issue a notice of violation or a cease- operations order against a building owner or a developer who is engaging in some conduct that is in violation of the Zoning Code, this bill makes clear that if the building owner or developer 78 12/8/99 RULES - BILL 990719 appeals from the cease-op, or appeals from the notice of violation, that appeal does not stay L&I's authority to continue with its enforcement action against the building owner or against the developer. Mr. Krakower did posit a slightly different situation, which is not covered by this bill technically. I don't think bill changes the law with respect to Mr. Krakower's situation. What Mr. Krakower posited is the situation where someone has been denied a permit, and they appeal from the denial of the permit. And I believe that the issue that Mr. Krakower raised is whether the appeal from the denial of a permit would prevent L&I from taking enforcement action. And I don't believe this bill says one way or the other on that -- although I don't believe there is anything in the Code currently that prevents L&I from taking action enforcement against that owner if, in fact, the permit was properly denied, and they shouldn't be going ahead with the action.
Mr. Feder, let me just ask you, I guess, kind of a jurisdictional question. 79 12/8/99 RULES - BILL 990719 You stated earlier that you're the Chief Deputy for Appeals and Legislation; is that correct?
And do you work with the attorneys who actually represent L&I in their various proceedings, either before administrative agencies or in the courts?
I understand that. And you provide advice to them from time to time about these kinds of activities.
Mr. Feder, in your opinion, would this create any particular enforcement difficulty in Licenses and Inspections if this amendment were adopted?
Councilman, that puts me in an awkward position. It borders on a policy question. 80 12/8/99 RULES - BILL 990719 I can tell you that this would authorize L&I to take enforcement action against owners who currently have appeals pending in the Zoning Board. Whether that would be difficult for L&I, I really have to defer to L&I and to this committee.
But I can talk about policy issues. And, Councilman, you're well aware that oftentimes, what people do to avoid action by L&I is immediately run to the Zoning Board and file their appeal and now hold themselves out as "you can't touch me." And as long as I'm in front of the Zoning Board or have a case going, it's "L&I, sorry, you can't do anything to me." And that is the issue that we're trying to resolve and get some closure on, because people are using the system essentially against us.
Well, I think, as I see it now, the pluses of this bill far outweigh the negatives, and that's the reason I wanted to ask Mr. Feder if he knew, and I appreciate his answer, you know, whether this would create 81 12/8/99 RULES - BILL 990719 insuperable difficulties. I don't see why it should. And you can't explain to constituents, and it does not appear to be a right thing to permit what clearly seems to have been an illegal grant of a permit. According to the Zoning Code, you can't permit that to permit somebody to take advantage of that grant and to continue to operate. And so I think, on balance, this -- we ought to do this. It may very well be that the issues raised by Gray Smith and Sandy Krakower should require further consideration by City Council because, there may be other imperfections, and we are charged with responsibility to the Zoning Code. It's our problem, City Council's problem to deal with it.
Thank you. Any other questions from members of the committee? (No further questions.)
Do we have anyone else to testify on this bill? 82 12/8/99 RULES - BILL 990719 (No response.)
May we please go back to 990678 that was introduced by Councilwoman Tasco? I understand there's a member of her staff here that will testify on the bill. (Brenda Frazier comes forward.)
Good morning. Please identify yourself for the record and proceed with your testimony.
Good morning. Good morning, Madam Chair and members of the Rules Committee. My name is Brenda Frazier, staff attorney for Councilwoman Marian Tasco. And with me is Miss Marian Johnson. She conducts many of the zoning cases at the Zoning Board of Adjustment, and brought this case to the Councilwoman's attention. Last year, the Councilwoman held hearings on the proliferation of wholesale businesses within the Fifth Street Corridor. Many of the neighbors and residents of the area came to testify that their services were being curtailed by the influx of wholesale businesses. This bill 25 is a result of many of those -- of that 83 12/8/99 RULES - BILL 990678 discussion. I refer you to the legislative findings that were detailed for the rationale for this bill. The Councilwoman asked that you approve the bill and refer it out of committee.
Good morning, Madam Chair Lady and others present. I would just like to add that I am also from Councilwoman Tasco's staff, and I do the zoning and hear the L&I matters for the Councilwoman. And many times, it's kind of complicated because you have people from the residential neighborhoods who come to us because they have complaints regarding the wholesale operations in their area, and their main reason for complaining is because the wholesale operations lock them out of actually shopping in their corridor. If they are not purchasing in quantity, they're not permitted to make their purchases that they would normally make in the 84 12/8/99 RULES - BILL 990678 neighborhood. We have a number of zoning applications for wholesale that we have had to be involved in, and we have opposed them strongly. We are still continuing to oppose them, but it's a difficult battle because, along the Fifth Street Corridor, I think because there are several that are already in place, other illegal wholesalers tend to just jump on the bandwagon. We've had meetings with them, they've made commitments about all kinds of ways they would stop wholesaling, but they have not lived up to that, so it is truly a problem in the 9th Councilmatic District, especially on the Fifth Street Corridor.
Did you ask the City Solicitor for an opinion on this? I just don't know if it's legal to prohibit the granting of variances.
This is a bill that has been reworked several times, and the Planning Commission did work on it for us and develop it, and that this was comparable to several other bills that were introduced in other districts, 85 12/8/99 RULES - BILL 990678 that this was just a restriction for this particular area and doesn't affect any other part of the City.
May I just ask the last speaker, are you saying there have been other bills in the City banning wholesale vending?
This is not wholesale vending. That is wholesale vending in retail areas, where there are mainly stores that the residents would prefer a dry-cleaner, they would like to have dry-cleaners and small shops for cosmetics and different kinds of things that are not accommodated by wholesale.
From the City Law Department? I wonder if he would approach the table.
He's just reading the bill now. 86 12/8/99 RULES - BILL 990678
This is just for the C2 areas, which are commercial areas that are bordering residential areas.
I think our problem is, we don't know whether the City has the power to, say, ban toy stores somewhere, or to ban a specific kind of business that is not, say, like a pornographic shop or something, and we -- let's see what the Law Department says.
Mr. Feder, I understand you're reading the bill at the present time.
That's correct, Councilman. I always try to do that before I give you an opinion. (Laughter.)
Miss Frazier, maybe you could tell us how many wholesale businesses there are in this particular area, in the Fifth Street Special District. 87 12/8/99 RULES - BILL 990678
We have some that have grown up that have not been approved by the Zoning Board of Adjustment. Probably from the Boulevard to Olney, there may be a half a dozen.
Mm-hmm. But does this bill prohibit the granting of variances from the provisions of the bill?
No, it's the granting of variances from the stated requirements for C2 commercial district. That is the -- the idea is that the commercial districts are basically there to support and provide economic possibilities for the residents, and that when the wholesale -- for example, wholesale hats or wholesale electronics, this detracts from the opportunities for the -- to support the community.
Thank you, Madam President. I'm Richard Feder, from the City Solicitor's Office. I believe you asked me -- I'm sorry could you repeat the question? Councilman Cohen, did you have a particular concern about this bill? I'm sorry. 88 12/8/99 RULES - BILL 990678
Yeah, we were wondering, does the City have the power to enact this kind of bill, to enforce it?
It is our view that, certainly, within a defined area, as opposed to citywide, Council has the legal party to prohibit certain uses within a defined area. And in terms of prohibiting the granted variances, I would construe that provision to say,"The Zoning Board shall not grant variances unless there's some constitutional reason to require a variance." For instance, if a property owner were able to come in and say that the denial of a wholesale -- the right to do so wholesale business is a complete taking of my property and this would violate my fifth-amendment constitutional right not to have my property taken, then I would construe this bill 19 to say that a property owner still has the right to make that case to the Zoning Board. But absent the constitutional taking, I believe Council does have the power to say, in certain instances, that no variances shall be granted. At least I'm not prepared to tell you that you don't have that power at that time. 89 12/8/99 RULES - BILL 990678
I conclude from your statement that you're saying at this point in time, as far as your understanding is concerned, Council would have the power to pass this bill.
At think moment, I don't know if -- I have looked into these issues in the past in related bills, but to be honest with you, Councilman, I have not looked at this bill before five minutes ago. But from my general understanding of the zoning law, I don't know any reason why Council couldn't prohibit this. I don't want to mislead you.
It is possible we could go back to the office and I could discuss this issue with --
Mr. Feder, do you mind staying at the witness table? I believe there is someone else that wants to testify on this bill. Please approach the table, identify 90 12/8/99 RULES - BILL 990678 yourself for the record, and proceed with your testimony. (Witness comes forward.)
Yes. My name is Michael Sklaroff. I'm a member of the Bar. I didn't come here to testify on this, but I would suggest that the Law Department be asked to address the specific question as to whether City Council can impair the power of the Zoning Board of Adjustment to grant variances in light of the City Charter.
We would be certainly happy to look into that. I believe -- I'm doing this from memory -- that the Charter says that variance power shall be done pursuant to ordinances, but I would really have to look into that. Mr. Sklaroff obviously has a concern, and I mean, I'd be happy to go back and look at that and discuss it with the Solicitor.
Well, I think that's important. I think it's important that you do that before we pass this bill.
We could move the bill out of committee and hold it until we get the 91 12/8/99 RULES - BILL 990678 opinion.
Mm-hmm, the City Solicitor's opinion. All right. Any other --
We would appreciate it if you could move it out and have the vote pending our decision.
Is there anyone else to testify on this bill? (No response.)
Seeing none, I would ask the clerk to please read the title of Bill No. 990729.
An ordinance amending Section 9-211 of the Philadelphia Code, entitled "Boxes for the Distribution of News and Printed Material," by adding additional locations to the 92 12/8/99 RULES - BILL 990729 designated program area, including the 1700 block of Cottman Avenue, under certain terms and conditions.
Again, I wanted ask that you identify yourself for the record, please.
Good day, Council President Verna and members of the committee. I am Otis Haigler, Jr., Legislative and Regulatory Affairs Manager for the Department of Licenses and Inspections. Today, I am here to provide testimony on Bill No. 990729, amending Section 9-211 of the Philadelphia Code by adding additional locations to the designated program area, including the 1700 block of Cottman Avenue, under certain terms and conditions. The Department of Licenses and Inspections offers no objections to the enactment of Bill No. 990729.
Thank you. Any questions from members of the committee? (No questions.) 93 12/8/99 RULES - BILL 990729
Thank you. Just for the record, Mr. Haigler just had a sidebar with Councilmember O'Neill, and I think it would important to advise the applicants of the newsstands that will be covered in this bill about the requirements for the materials of newly-constructed newsstands. And also, I think it be beneficial for them to understand what we're attempting to do. Oh, I apologize -- I thought it was a part of the newsstands.
Just the honor boxes. Okay, I apologize and I withdraw that. Thank you.
Okay, do we have anyone else to testify on this bill? Please approach the witness table. (Witnesses come forward.) 94 12/8/99 RULES - BILL 990729
Yes, I will. My name is Al Taubenberger, T-A-U-B-E-N-B-E-R-G-E-R, President of the Northeast Philadelphia Chamber of Commerce.
Good morning. My name is Michael Klauder, K-L-A-U-D-E-R, general manager of the Country Club Restaurant on 1818 Cottman Avenue.
Pull the microphone closer to you. And before you do that, the noise level is much too high in the room. We could just about hear the witnesses. So if you want to engage in conversation, please do so in the corridor. Thank you. Please repeat your name again.
Yes, ma'am. My name is Michael Klauder, K-L-A-U-D-E-R, and I'm general manager of Country Club Restaurant, located at 1717 Cottman Avenue.
Madam Chair, we also have two sets of pictures for the committee, just 95 12/8/99 RULES - BILL 990729 to look at what this looks like visually and to have an idea what ware talking about.
The problem that we have with the honor boxes is, they were put there without permission, and we're located next to Northeast High School, with 3500 students, and to our east is Woodrow Wilson Junior High, with 1500 students. And almost daily, the students go by before and after school and open the honor boxes and throw the papers up in the air and cause a problem with litter and a mess, and it causes damage to our business. Also, it prevents patrons from parking on Cottman Avenue because it makes it difficult for them to get out of their cars with the proliferation of all the news boxes there.
Thank you. Any questions from members of the committee? The Chair recognizes Councilman DiCicco. 96 12/8/99 RULES - BILL 990729
Mr. Klauder, have you attempted to contact any of the owners of the vending boxes and asked for them to remove them or --
Without success. Okay, I was just having a conversation again with Councilmember O'Neill about an honor box legislation that we passed in Council not too long ago. We're in the phase of the pilot program in Center City to create some uniformity in the way these boxes are placed out there. I'll speak further to Councilmember O'Neill. There might be an opportunity here to erect one of those corrals in and around the facility that would maybe make this a little more uniform, so I'll work with you on that. But you have not -- no one, obviously, 97 12/8/99 RULES - BILL 990729 has decided to remove these boxes. Have you tried contacting Licenses and Inspections?
And I would also suggest that maybe contact you through Councilmember O'Neill's office, the Streets Department, because there are ways and means by which sometimes we can have these boxes removed.
The problem is, they just suddenly appear. Like, one day there's two, the next day, there's eleven.
Thank you. Any other questions from members of the committee? (No further questions.)
Do we have anyone else to testify on this bill? (No response.)
I just wanted to briefly say real quick that the photos clearly 98 12/8/99 RULES - BILL 990848 state how bad the situation is.
There are eleven boxes there that interfere with parking and so on, and we really would appreciate it if this bill 8 would be passed so these things could be removed and regulated. Council President, thank you.
Thank you very much. The next bill being called for consideration is Bill No. 990848.
An ordinance amending Title 9 of the Philadelphia Code relating to the regulation of businesses, trades, and professions by amending Chapter 9-2000, entitled "Sale of Malt or Brewed Beverages," to further regulate and restrict the operation of businesses that sell malt or brewed beverages, under certain terms and conditions.
The Chair recognizes Councilman Clarke. (Councilman Clarke comes forward as a 99 12/8/99 RULES - BILL 990848 witness.)
Good morning. Please identify yourself for the record and proceed with your testimony.
Good morning, Madam Chair. My name is Darryl L. Clarke, Councilperson for the 5th Councilmatic District. I'd like to thank you for this opportunity to testify on behalf of this bill, and I'll be as brief as possible. Essentially, I introduced this ordinance to remedy one of the major problems that severely affects one of the neighborhood throughout the city, but particularly low-income communities with large minority populations. In many of these neighborhoods, establishments to sell malt liquor, also called "stop-and-go's," tend to create public nuisances. The people who will testify after me, community leaders and police officers, will describe these nuisances and how they affect the everyday life of citizens and neighborhoods trying to turn around and maintain cleanliness and order. Frequently, stop-and-go's are the 100 12/8/99 RULES - BILL 990848 centers of criminal activity. Drug dealers stand out in front of them, people drink beer in front of these stores, crap games are played on the sides of these establishments. The number of people loitering in front of these stop-and-go's essentially create a concentrated air of negative activity that frightens many people in the communities in which they exist. To compile the situation, the stop-and-go's frequently market a strong or more potent version of malt liquor targeted to minority communities. This enhanced malt liquor is both difficult to find in middle-income and non-minority communities, but very easy to find in virtually every low-income minority community. Worse yet, our neighborhoods are already targeted with concentrated numbers of bars that sell even more potent liquor. Unfortunately, these stop-and-go's also market items to children, while maintaining items typical of a small corner store -- for example, individually-wrapped candies and toys and arcade games. Many minority and low-income communities are also lined with sexually suggestive posters 101 12/8/99 RULES - BILL 990848 exhorting patrons to buy alcohol. This is a frightening contradiction that is still all too common. To add insult to injury, advertisements for this enhanced malt liquor appear in radio and magazine advertisements whose primary audience is dominated by teenagers. It seems to many that these marketing practices encourage children to purchase malt liquor and beer illegally. This marketing technique is even more concerning when these stop-and-go's are located within close proximity to schools. In my district, there are many examples. Across from Dobbins High School, at 22nd and Lehigh, there's a store that's frequented by students and people wishing to buy beer. There's another one at the corner of Dover and Cecil B. Moore, in between 29th and 30th Streets that's right across from the Kelly Elementary School. And it goes on. Sadly, around each of these locations exists several other stop-and-go's that sell beer while children walk home to and from school. Moreover, in many neighborhoods throughout Philadelphia, many schools are within blocks of 102 12/8/99 RULES - BILL 990848 many places that sell malt liquor. With an aggressive marketing campaign that is directly primarily directed towards minorities, this enhanced malt liquor floods our neighborhoods. These establishments create an create ongoing --
Councilman, excuse me. I think you deserve a little more respect than you are getting. Again, I am going to suggest that the noise level is much too high. Anyone having conversations will please do so in the corridor. I'm sorry.
Okay. Unfortunately, existing State law generally prohibits municipalities and counties from regulating malt liquor establishments in a way that treats places that sell malt liquor differently than those that do not. However, State Senator Shirley Kitchen is willing to offer 103 12/8/99 RULES - BILL 990848 an amendment to State law to enable the City of Philadelphia to enact laws that will protect our citizenry from the nuisances that these establishments create. The loitering provisions of this ordinance are similar to existing provisions in the Philadelphia Code, except for this ordinance 9 adds an onus onto property owners to abate the nuisance. Obviously, the property owner is not expected to do so him or herself. He or she should call; in this way, the police can help stop these nuisances and other crimes that they create. In conclusion, I hope that my colleagues join me in helping to empower neighborhoods to help themselves. As we hope to improve the quality of life of neighborhoods throughout the city, I ask that this ordinance be voted with a favorable recommendation out of this committee so that the nuisance that these establishments create can be properly regulated. I thank you for your time and consideration.
Thank you. Are there questions from members of the 104 12/8/99 RULES - BILL 990848 committee? What is the penalty to the property owner if he does not comply?
Well, there are currently regulations associated with some of the nuisances. Right now, we have not a set a penalties for the particular noncompliance of this bill.
Okay. And it's my understanding that we have Captain Cynthia Dorsey here to testify?
Yes, we have Captain Dorsey, and we have several representatives from the community.
All right. Would captain Dorsey please approach the witness table? (Captain Dorsey comes forward.)
Capital Dorsey is taking care of a little personal situation at this moment. (Laughter.)
All right. And while we're waiting for Captain Dorsey, may I 105 12/8/99 RULES - BILL 990848 suggest that Reverend William King approach the witness table? (Reverend King comes forward.)
I'd like to begin by saying that I support the proposed amendments to this ordinance, and I want to thank Councilman Clarke for offering these amendments. But I am also -- I would like to also say that I've been here since about 9 o'clock, and I'm a little disappointed in that all of the chairs were filled with Councilpeople at that time. And up until about maybe 15, 20 minutes ago, it now appears that there are only three Councilmembers that are at the table, which indicates to me that there doesn't seem to be a whole lot of interest or concern in this issue. And I would like to submit that this is a very 106 12/8/99 RULES - BILL 990848 important issue, especially when we consider the fact that so many of the crimes that are committed in our community are a direct result of alcohol and drugs. I'd like to also identify myself. I am Reverend William L. King. I'm the minister of Calvary United Church, at 29th and Lehigh. Let me say that the problems that these activities create are monumental. Our young people are very important -- or should be very important to us. And anything that's going to impact on their lives and help to mold them, it seems to me that we ought to all be very concerned about it. I'm sure that all of you are aware of the brutal murder that just took place in our community just a few days ago of this eminent journalist, and I'm sure that when you look at the perpetrator, somewhere in his background, you're going to find something to do with drugs and alcohol. So it seems to me that anything at all that's going to try to help impact and improve the quality of life in our communities, we all ought to be very concerned about it. 107 12/8/99 RULES - BILL 990848 Having these stop-and-go's in our communities impacts on our young people because, at a very young age, as they enter these places, they see these beverages dispensed, they see people partaking of them, and it begins to influence them. I have a youth center in my church, and many of the young people that I come in contact with, they smoke pot, they drink these malt liquors, and together, they get a high that's unbelievable. They're out of their minds; half the time, they don't know what they're doing themselves because of this. , '20s, and I know there are people who say we can't regulate mortality and all of that, but I do believe that we need to make some effort -- this is just one small effort -- at trying to control the situation that has a tremendous effect on our young people. All of you are well-educated and intelligent people, and I know that you realize that we are all influenced in one way or another 108 12/8/99 RULES - BILL 990848 by our environment, the things that we come in contact with, especially when we're young and impressionable. So it seems to me that this one small step here will go a long way with trying to help change some of the behavior that exists in our community. Now, you already have -- this ordinance 9 is already on the books. Part of the problem today, however, is the enforcement. We need -- we need our law enforcement people to be sensitive to this and to try to help them in whatever way they can -- and I think that they can be a big help without further exacerbating the situation by causing confrontations. But, certainly, with the young people hanging out in front of these places, it does create a real problem, and I would appreciate your consideration of these amendments and for you to seriously consider how important and what an important factor it may be in trying to help the clergy who, we often are criticized because we don't do enough, and it makes it very difficult for us to do our jobs when we can't get support of our authorities in trying to undo some of the 109 12/8/99 RULES - BILL 990848 situations that exist in our community.
One of the worst things -- and I don't know if any of you are clergy, but one of the worst things that I've had to face is trying to administer to a family who has lost a loved one because some kid got high, stole the car, and caused an accident and took their loved one from them. We all sympathize perhaps with the youngster, and we can say it was an accident, but the impact and the hurt and the pain that it causes the family is something that the minister has to try to deal with. And believe me, it is very difficult. Thank you for this opportunity to come and share my views, and I appreciate your attention. And I'm happy to see that some of the other members have joined you at the table.
Reverend, Reverend, why don't you wait a moment, please. The Chair recognizes Councilman Kenney, but before I do recognize him, Reverend, I do want 110 12/8/99 RULES - BILL 990848 to thank you for your patience in waiting to testify, and this is an issue that we have all been concerned about, and there have been, I know, more than one bill that was introduced by Councilman Kenney. And I agree with you that we could pass all the bills in the world, but if they're not enforced, they're just a useless piece of paper.
At this time, I would like to recognize Councilman Kenney.
Thank you, Madam Chairperson. Reverend, I just to give you a little bit of history on what the Council's been doing over the past eight years as it relates to what I believe is a scourge on the communities of our city, and more clearly, a scourge in the minority communities of our city as opposed to some of the other areas of our community. Back in my first term, starting in 1992, I was successful in getting a piece of legislation passed which required zoning approval for any new takeout-beer delicatessens that were 111 12/8/99 RULES - BILL 990848 to be opened or were intended to be opened in our city. To my knowledge, because of that zoning bill, I don't believe that any new ones have been approved. What we have basically are the scourge of the existing ones that have been there. Part of what I learned in dealing with this problem is that there's a lot of money to be made, and a lot of money that's being made. And sadly, that money is not only being made by people who are taking it out of our communities, but many of the people who own these operations do not even live in the City of Philadelphia, but simply only their relationships to the city is their bank deposit bag. And on one occasion, I drove from Allegheny Avenue from 29th Street down at Mercy Tech to Broad and Allegheny, and I counted ten different take-out-beer delicatessens in the space of that many blocks. One of the things I wanted to caution you about is, our efforts to really come down on these operations landed us in federal court, if you could believe it or not, but the City of Philadelphia, along with myself, were sued by the 112 12/8/99 RULES - BILL 990848 Beverage Association that represents the people who own these operations in federal court. We shut down a large number of them, based on zoning violations that we believe existed. The court reversed our efforts and allowed those operations to stay open, sad to say. The other problem that we face in dealing with the governance of this issue the absolute right, or the absolute perceived right, of the State to monitor and to have jurisdiction over the sale of alcoholic beverages. Take-out-beer delicatessens were not intended when they passed the law allowing you to serve a beer in a delicatessen. Basically, what was envisioned was a kind of a restaurant setting where someone would come in for, say, a corned beef sandwich, sit down in the normal place, have the sandwich, and be able to have a beer or two. What they did was take those -- what are called e-licenses, which are State licenses for those types of operation, and created a corner grocery store, with four walls of refrigerators, stocked top to bottom with what I call "liquid crack," which is what it is. There is no reason 113 12/8/99 RULES - BILL 990848 for anyone in the world for anyone to need to drink brewed beverages with the high alcohol content that some of these beverages have. I mean, a regular Budweiser or any other traditionally sold beer does not come close to the amount of alcohol that's in these large bottles of malt liquor. So I commend you for your continued efforts, I commend Councilmember Clarke for his efforts in this regard, but I want to tell you something you probably already know: There's a lot of money being made, there's going to be a lot of lawyers running around, trying to stop us from doing what we're trying to do. And I never believed that the federal court really should give some -- they said it was unconstitutional for us to regulate and to try to shut down some of these operations. So I just wanted to alert you to the opposition that's going to come about, but I'm sure, with your faith in God, you'll continue on. Thank you.
Thank you, Reverend. 114 12/8/99 RULES - BILL 990848 Are there any questions or comments from members of the committee of Reverend King? (No questions.)
Captain Dorsey? (Captain Dorsey comes forward.) CAPTAIN DORSEY: Good morning.
Good morning. CAPTAIN DORSEY: Thank you for the opportunity to speak here today. Let me tell you a little bit about the 23rd District. I've been Captain of the 23rd District since June 15th of this year. Demographically, it's bonded: on the north, by Montgomery; on the south, by Poplar; and on the east, by Tenth Street; and on the west, 33rd Street. 3 square miles, primarily neighborhoods with approximately like 30,000 to 35,000 people, 95 percent of which are minorities. I did some research, and what I came up 115 12/8/99 RULES - BILL 990848 with is, there are approximately liquor-on- the-go establishments in this small, congested area, which, in my opinion, is far too many. Residents here are often in need of governmental financial and police service. But if they need alcoholic beverages -- and that's in addition to the other bars and things they have. Alcoholic beverages are readily available to them and also the State stores. I looked from January to August of 1999. There were approximately 350 calls for service in the areas where these 11 establishments were, and they ranged from everything disturbances, to disorderly crowds, hospital cases, a person with a gun, and lost property. And that's 350 calls where the police could be providing service, and they have to go and answer calls in or around these establishments. Many of the locations are grouped together. On Ridge Avenue, I counted four within a one-block radius and that is too many. Also, on the 2800 block of Girard Avenue, within a one-block radius, there are two of them. The problems -- the unique problems 116 12/8/99 RULES - BILL 990848 that they bring, 40 ounces is a lot of beer, that's a lot of beer for someone to consume. And these malt liquors have a high percentage of alcohol in them. When you drink 40 ounces of beer, you are going to have to take care of your bodily functions. The problem is, the mindset is, patrons, when they purchase the beer, don't believe that they have to go home to use the facilities, so if they can't use the facilities inside, we have a problem with public urination. That's one of the things. It also encourages gambling on the highway because encourages people to hang out on the corps or outside of the establishments. Now, we have beat officers on Ridge -- I have a beat officer on Ridge Avenue. So what that does is, that discourages them from hanging outside, because the officer won't tolerate it. Especially if they're engaged in any illegal activity, they know they're going to be arrested. Sometimes they go inside of the establishments, and that doesn't make things any better, because there are people coming in, there are children coming in. 117 12/8/99 RULES - BILL 990848 Also, children coming from school have to pass by these establishments. They're intimidated, and it's a bad role model for the kids to see. It also -- you have seniors who do most of their shopping in North Philadelphia. They shop on Ridge Avenue, they shop on Cecil B. Moore Avenue. Sometimes they're intimidated by these people hanging out, even though they don't think they're anything wrong. They're violating the open-container laws -- we have open-container laws here. They think that as long as it's in a paper bag and concealed, but that's against the law. You have disorderly crowds, gambling on the highway, as I said. Sometimes it's coupled with the illegal use of narcotics. There's littering -- where do you put the 40-ouncers or the bags or the food that you eat? Do you throw it in the trash or do you just litter the streets? You litter the street with it. So there are disorderly conducts, confrontations with the officers, because they really don't believe that they're doing anything wrong. 118 12/8/99 RULES - BILL 990848 Something like this has been in the community for many years. It's accepted behavior by some of the people that patronize these places.
So these are the problems that the police encounter in dealing with these malt-liquor establishments. And the thing is that it is bringing big money in. And that's the problem.
Thank you. The Chair recognizes Councilman Kenney.
Captain, thank you very much for your testimony. You may be aware of this, but if not, I'd like to make a suggestion to you. Every year, liquor licenses are renewed, they need to be renewed by the Commonwealth of Pennsylvania. One of the problems that we faced when we dealt with Councilman DiCicco a couple of times on some problem bars, one of the problems that we face in dealing with the license renewal effort to have the license denied for that year is the way in which the police incident reports are written. Often, when an officer arrives on the scene and there's a confrontation on the highway with the proximity of the take-out-beer 119 12/8/99 RULES - BILL 990848 delicatessen, the 48 Form, or the incident report, is not written clearly as to the specific address of the location of the location. So if your supervisors, yourself, your supervisors and your line squad people can specifically write the address for each service call of the particular take-out-beer delicatessen, that creates a volume of evidence that this is, in fact, a nuisance bar and should not be reason stated. I know the officers are, you know, doing a great job and they're out there, and sometimes if the fight or the altercation is on the sidewalk outside of the place, the 48 is not written clearly that it is a specific address that relates to the take-out-beer deli. And what happens is, even though we go to court or we go in front of the hearing examiner of the State and we have a wealth of incidents of requests for service at a location, the lawyers for the liquor licensee basically say, Well, wait, that's not our location, that's on the highway, that's in the street, that's across the street. So if we can continue to try to focus those incident reports on a specific address, it 120 12/8/99 RULES - BILL 990848 builds a much better case again the licensee when it comes for renewal. CAPTAIN DORSEY: Okay.
Are there any other questions or comments from member of the committee? (No questions.)
Captain, thank you very much. CAPTAIN DORSEY: Thank you.
Do we have anyone else to testify on this bill? (Witness come forward.)
Please identify yourself for the record and proceed with your testimony.
My name is Gladys Mead (ph.), and I have an organization, the 29th Street 121 12/8/99 RULES - BILL 990848 Community Services Center for Performing Arts, and a CDC. And I'm now getting a building renovated on 29th Street, which is not too far from one of these stop-and-go's, and I have at least about 30 or 40 children that goes up and down that area in the summertime. We have a great big festival on 29th Street that carries almost 2,000 people in two blocks. And I don't think that we should have another stop-and-go in our area. We're trying to build up our area and trying to make it liveable for the people that's in there now, especially for the senior citizen, because there's a lot of senior citizens around there, and they're afraid to go out at night, they're afraid to walk -- to even sit on their porches. And it's a hazard to the whole community. Now, like they said, there's a lot of money dribbling around with these things, but there's drugs involved in that, and they can't seem to control the people that goes in and out of these stop-and-go's. They give them anything they want and then they stay in their little 122 12/8/99 RULES - BILL 990848 institution and do whatever they have to do. And they're a nuisance to the community. At all hours of the night, they're up and down 29th Street and on Lehigh Avenue raising a lot of fuss. And it's deteriorating from the community. So we are trying to build our community up, and we really don't need another one of those establishments in our community. Now, with me and my organization, this performing arts, I have a multiculture center, and I'm looking for the best sort of people to come there, and they will not attend my center if we have this sort of thing in our community. So a lot of the folks that have lived in our community have left, but they're coming back, and we're trying to keep it going so that we could have a decent and respectable center and a decent and a respectable community. Now, when I have my festival, everybody comes out, I invite everybody from the city -- I know you got some mailing from me. And they have come, the Mayor has been, the -- all of 'em. Even I've invited you, Miss Lane (sic). But you know, you need to be - the 123 12/8/99 RULES - BILL 990848 community is -- we're trying to build it up, and we really don't need these stop-and-go's. And them guys that's on the corner, they throw those bottles anywhere, they smoke them cigarettes and throw them on the street, and it's just a regular hazard. So I hope that you will feel free and find it in your hearts not to have this kind of a nuisance in our neighborhood at this time.