Don Anderson Mayor Jason Whalen Deputy Mayor Mary Moss Councilmember Michael D. Brandstetter Councilmember John Simpson Councilmember Marie Barth Councilmember Paul Bocchi Counciimember John J. Caulfield City Manager April 14,2016 DECISION ON SUMMARY BUSINESS LICENSE REVOCATIONISUSPENSION APPEAL STAR LITE SWAP SALE LLC Lakewood business license NO. BL04-00547 7604 South Tacoma Way Tacoma, WA 98409-3808 Appellant: Site Address: 8327 South Tacoma Way Lakewood, WA 98499 Re: Pierce County Assessor Parcel NO. 0320312046 Section 31 Township 20 Range 03 Quarter SEC 582.SEC 838.LOTTO MIN 1134.SEC 714.LESS 84TH THEREOF ALSO EXC POR DEEDED TO CO UNDER ETN #526382 EASE OF RECORD #2221628 LESS THAT POR CYD FOR ADD PER ETN Q675760 EXC CYD TO CO PER ETN W866975 80 8 DC6643SG9-21-87) I was appointed to serve as the Hearings Officer by the City Manager pursuant tO LMC and this is my decision and order regarding the NOTICE OF SUMMARY BUSINESS LICENSE REVOCATIONISUSPENSION APPEAL. 6000 Main Street SW - Lakewood,WA 98499?5027 - (253) 589?2489 - Fax: (253) 589-3774 PROCEDURAL BACKGROUND 1. Mr. Hank Bardon is the current City of Lakewood business license holder for the Star Lite Swap Meet/Garage Sale LLC, doing business as the Star Lite Swap Meet at 8327 South Tacoma Way, Lakewood, WA 98499. On April 3rd, 2016, City of Lakewood Police Officers observed conditions at the Star Lite Swap Meet that were later determined by the City Manager to present ongoing issues that are hazardous to life and property according to LMC On April 7th, 2016, a Notice and Order of Summary Business License Revocation/Suspension was drafted, signed, and served on Mr. Bardon. An appeal hearing for this matter was scheduled and held at 1 PM. on April 11th, 2016. Both parties to this matter appeared at the appeal hearing and produced witness testimony and other evidence to the Hearing Officer. The City Manager appointed myself, the Assistant Chief of Police, as the Hearing Officer in this case. This decision was made due to the fact that I had no prior knowledge or involvement in this matter. I also have extensive experience in conducting administrative investigations and some experience in business licensing issues. was assigned to the Police Department?s Professional Standards Section for four years, during which time I conducted dozens of administrative investigations ranging from minor personnel matters up to termination of employment and even criminal matters. I conducted these investigations for the City of Lakewood as well as several outside agencies. Also, from 2007 to 2010, supervised the Community Policing Unit within the police department and worked on community issues with various internal and external departments, including the City?s Community Development Department, related to businesses and public nuisances within the city, among other tasks. SUMMARY OF POSITIONS Appellant: The appellant argues that the revocation of the Star Lite business license is an arbitrary action by the City, without basis or proper analysis, in response to a single incident. The appellant believes the City has unduly targeted the Star Lite for scrutiny ever since Mr. Bardon opened the business in 2004. The appellant believes there is no safety issue, that it has an adequate traffic and parking system, and that there is insufficient cause to revoke/suspend the Star Lite business license. Page 2 of 12 Respondent: The City argues that the Star Lite business poses a risk to the public health, safety, or welfare to the community. The City cites the traffic congestion experienced by its? Police Officers on April 3rd, 2016, the delay this caused in the Officers? response to a missing child, previous observations of congestion in and around the business, as well as a previous fatality accident that occurred on the property in 2011, as evidence of this safety concern. HEARING The appeal hearing was commenced in the City Council Chambers at Lakewood City Hall on April 11th, 2016 at 1 PM. The proceeding was audio recorded to provide a permanent record. I took detailed notes as well. In attendance for the City was Assistant City Attorney Matt Kaser and Assistant City Manager/Community Development Director Dave Bugher. In attendance for the Appellant was Mr. Hank Bardon and his attorney, Stephen Burnham. Both parties were allowed to give opening and closing statements, present witnesses and evidence under oath, and cross examine all witnesses. The Hearing Officer ruled on any objections made by either party during the proceeding. The hearing continued, with two short recesses, until approximately 7:10 PM. This allowed nearly six hours of testimony and evidence to be presented. I will not attempt to repeat this volume of testimony verbatim, but will try to summarize the significant facts and conclusions I have drawn after hearing this testimony and evidence. The City initially called the three Officers and one Sergeant who responded to the missing child call at the Star Lite on April 3rd, 2016 as witnesses. Their testimony made it clear that there was significant vehicular and pedestrian congestion as they approached the Star Lite by city streets and attempted to enter the parking lot. They were able to park and were then faced with additional pedestrian congestion as they attempted to enter the main building and then exit that building to the main outdoor vendor area. They did not make contact with Star Lite staff directly, but attempted to locate and contact the Reporting Party who had called 911 to report their child missing. Priorto them locating this Reporting Party, the child had been found and they were cancelled by their dispatcher. The Officers were in the process of leaving the property when Star Lite staff informed them that they had two additional missing children at the main office. Officers contacted the children and staff at the office. The parents of the children arrived shortly thereafter and they were reunited with their parents. The Officers faced congestion again as they attempted to exit the building and then exit the property in their vehicles. All of the Officers and Sergeant had at least 17 years of law enforcement experience, if not more, and gave their opinion that the vehicle and pedestrian traffic Page 3 of 12 posed a safety risk. Under cross-examination, they indicated they did not believe there was risk to the public health or welfare of the general public posed by the Star Lite, only the aforementioned safety issue. Of particular concern to the Officers in their testimony were the pedestrians crossing 84th Street, a four lane main arterial, mid-block, without a marked crosswalk, and in between stopped and moving cars. Also, one responding Officer, who arrived on his police was nearly struck by a car as he attempted to enter the property, despite the fact the emergency lights on his were activated. The Officers also expressed concern about the lack of signage or clearly marked pedestrian paths through the parking area in front of the main office and the crowded conditions entering the main building and then exiting into the main outdoor vendor area. The City next called Mr. Dave Bugher. Bugher is the Director of the City?s Community DeveIOpment Department, which handles land use planning, building permits, business licenses, and zoning issues among other things. Bugher testified that there was a regularly scheduled economic development meeting on Tuesday, April 5th where the April 3rd Star Lite incident was discussed. In attendance at this meeting were the City Manager, Police Lt. Heidi Hoffman, himself, and several other city employees. The City Manager ultimately made the decision to revoke the Star Lite?s business license under LMC The Notice and Order was drafted by Asst City Attorney Kaser and signed by Bugher on April Later that same day, Bugher and Police Chief Mike Zaro personally served the Notice to Mr. Bardon at the Star Lite. Bugher testified that the City would be amenable to reinstating the Star Lite business license with some conditions. He listed these as: - Hire off-duty Police Officers for traffic control - Control or limit the number of people on-site to 2500 people (not including vendors) - Remove the signage regarding garage sales - Improve signage for pedestrians on the prOperty - Improve the marking of parking stalls on the property Under cross examination, Bugher testified that there was no formal study or analysis of the traffic issues before the decision to revoke the license was made. It was based on the general knowledge of city staff about traffic congestions issues around the Star Lite on the weekends and the verbal description of the April 3rd events by Lt. Hoffman. Bugher stated that there has long been knowledge of the traffic issues at the Star Lite, but no conditions have been placed on the license and no formal notice given to correct the problem. Bugher testified that Lakewood Code Enforcement Officers estimated that 4,000 to 4,500 people attend the Star Lite on a weekend day. Under cross examination, he admitted that this was just their best guess. Bugher stated that based on that number, Page 4 of 12 the City would like to see attendance capped at 2500 people, see how that impacts the traffic issue, and then work with Mr. Bardon to raise that number to an acceptable level. Bugher testified about the property Bardon purchased that is directly across from the Star Lite on the south side of 84th Street. It is zoned AC2, which would allow a use as ?Off-site parking,? but that would require improvements such as paving, markings, and landscaping. ?Satellite parking" is not specifically allowed in zone AC2, is only for temporary use during parts ofthe year, but does not require improvements such as paving. Bardon has made an application to the City Council to amend the zoning for that property to allow it to be used as satellite parking, but no action has been formalized on the application by Council. Under cross examination, Bugher said he had reviewed a traffic engineer?s report (later submitted and identified as Exhibit produced at Mr. Bardon?s expense and submitted to the city that had several recommendations for improving the traffic situation at the Star Lite. Bugher stated that this engineer?s report recommending essentially cars up on city streets before they entered the business and it was over 4 years old. Bugher stated that the Star Lite has been trying to work with the city on various issues, including traffic. There was more testimony under direct and cross examination from Bugher regarding some of the history between the City and the Star Lite, how similar issues with other businesses have been handled, the zoning issue with the Star Lite property on the south side of 84th Street, and various other licensing and legal issues with the Star Lite. None of these other issues were addressed in the Notice and Order, so I am not describing them further here. The arguments on these issues are contained in the record of this proceeding. The City rested its? case and Mr. Burnham, representing Mr. Bardon and the Star Lite, began presenting his testimony and evidence. Burnham called Mr. Bardon as his first witness. Bardon stated he bought the Star Lite in 2004 and began operating it as a swap meet. Bardon said he has discussed traffic issues with the City in the past and paid for a traffic engineer?s report (Exhibit to help find solutions. He stated the City disagreed with the traffic engineer?s recommendations. Bardon used the display aerial map (Exhibit to demonstrate how he has his parking attendants flow traffic in and out of the main business lot and the various additional parking lots he owns in the area. He pointed out that there is an entrance on the north side that leads to a fire/emergency vehicle lane along the east side ofthe main building. Bardon expressed some frustration that the City will not allow satellite parking in the lot he purchased on the south side of 84th Street, directly across from the business. Burnham introduced a report from WHPacific, which was an independent review of the zoning of this lot (Exhibit WHPacific's report suggests that an amendment to the zoning of the lot to allow satellite parking would be a possibility if the Council chose to Page 5 of 12 do so. Burnham also introduced a map of the Star Lite, showing the locations of all of the stalls (Exhibit Under cross-examination, Bardon testified where each of his parking lots is located and how many cars each holds. This totaled 1150 parking spots. Bardon further testified that he estimates 500 cars each hour, rotate in and out of all of the lots by customers coming and going. Bardon then testified that his business is open 8 hours a day on the weekends. I calculated these numbers by multiplying the 8 hours of operation by the 500 cars Bardon estimates rotates each hour. With only one occupant in each car, that would equate to 4,000 people. This is very close to the estimate given earlier by the City. Burnham next called the manager of the Star Lite, Mr. Frank Murakami. Murakami gave testimony about the events of April He stated that the congestion that day was no different than any other weekend day of business. He said he had nine parking attendants working that day on and around the prOperty. He completed his testimony with no cross?examination. asked a couple ofquestions. clarified what Mr. Bardon had applied for regarding the property on the south side of 84th Street. asked Mr. Bardon if, after the city rejected the recommendations of the traffic report he provided, he had a second traffic engineer review the report for a second opinion. He stated that he had not. After some questioning of Mr. Bardon and Mr. Murakami, I learned that the Star Lite does not track attendance with any type of turnstile, or other electronic or mechanical means. Since there is a city tax that has to be paid on any attendance fees collected, inquired as to how the Star Lite calculates attendance for that purpose. I was told that they count the till at the opening and then the closing of the business, and then extrapolate the amount of attendance fees collected, and thus, the amount of tax owed. The City then gave closing arguments in which they argued that there were more than enough grounds to revoke the Star Lite business license. They stated there was a clear safety issue with the traffic congestion, the mismanagement of the parking lot, the pedestrian congestion in and around the buildings, and that the Officer had nearly been struck by another motorist. They also stated there were conditions that could be imposed to help mitigate some of these issues. Mr. Burnham then gave his closing arguments. He argued that this was an arbitrary decision from the City based on a one day event. He stated there was no allegation that this is an ongoing problem. He stated his client has tried to fix the problem by providing a traffic engineer?s report and attempting to convert the property on the south side of 84th Street for additional parking, both of which the City has rejected or not allowed. He stated that no one was hurt in this incident, that the children were all found and/or returned to their parents, and that no one from the City made a complaint on April 3rd to the business about the traffic. He stated this was a kneejerk reaction with no analysis by the City. Page 6 of 12 below. This concluded the hearing. I have summarized the facts I found from the hearing FINDINGS OF FACT 1. Mr. Bardon has owned and operated the Star Lite Swap Meet at its? current location within the city limits of the City of Lakewood since 2004. . Mr. Bardon has maintained a current business license for the Star Lite Swap Meet with the City since 2004 and had a current and valid business license on April 3rd, 2016. (Note- Both parties acknowledge that Mr. Bardon?s license did lapse inadvertently on one occasion several years ago. He was given special notice of this by the City and renewed the license) The Star Lite business license was renewed in February of 2016 with no conditions. There have not been any special conditions placed on the Star Lite business license in the past. Traffic congestion has been discussed by both parties in the past but no conditions have previously been placed on the license. The Star Lite business is a conforming use for the location and land use zone. The Tacoma Pierce County Health Department has reviewed the Star Lite premises for bathroom and sanitation issues and found the business to be in compliance with current regulations. The West Pierce Fire Department has conducted fire code inspections of the premises on weekdays in the past and has found minor issues that were fixed. Mr. Bardon owns a vacant lot directly to the south across 84th Street that is zoned A02, which allows off-site parking but not satellite parking under current city land use designation. 10.Mr. Bardon has an application before the City Council to amend the land use zoning restriction for that piece of property to allow satellite parking. 11.Mr. Bardon states that he has 1150 individual parking stalls either on the Star Lite property itself or on nearby parcels which he has purchased for the purpose of additional parking for the business. 12.0n April 3rd, 2016 at approximately 1325 hrs., Lakewood Police Officers were dispatched to the Star Lite for a missing child call. Page 7 of 12 13.When Officers arrived, they found roadways and parking congested by vehicles and pedestrians, hindering their ability to enter the business for the purpose of responding to the missing child call. 14.Traffic was backed up along both directions of 84th Street, directly in front of the business, with pedestrians crossing 84th Street mid-block to access the Star Lite business. 15.The missing child from the original police call for service was located and returned to the parent without the intervention of either the Police Department or Star Lite staff. 16.As Officers were leaving, they were informed by Star Lite staff that they had two additional children, who were missing from their parents. These children were reunited with their parents a short time later. 17.The Star Lite did have staff assisting with the parking of vehicles or direction of vehicular traffic. 18.0fficers did not make a complaint to Star Lite staff at the business on April 3rd, 2016 about the traffic congestion or other safety issues. 19. No civil infractions or criminal citations were issued to either staff or patrons for any violation of local or state laws on April 3rd, 2016. 20.0n April 7th, 2016, Mr. Bardon was served with a Notice and Order of Summary Business License Revocation/Suspension. 21.0n April 8th, 2016, Mr. Bardon made a complaint to Pierce County Superior Court (Cause No. 16-2-06850-8) and was granted an order from that court allowing him to continue operating the Star Lite business until an appeal hearing was held on the matter. 22.The Star Lite sees significantly higher attendance, by customers and vendors, on weekend days as compared to weekdays. Attendance further increases on dryer/warmer days as well, since much of the business is conducted outdoors. 23. Star Lite staff do not directly count attendance at entry points with any mechanical or electronic device. Attendance is derived based on a count of the attendance cash tills at the beginning and end of the business day. 24.The Star Lite is required to pay the City of Lakewood a tax based on the attendance at the business. Page 8 of 12 CONCLUSIONS A. Mr. Bardon does operate a legal business within the city limits with a valid, current business license. The business activity is in conformance with current city zoning requirements. . The business clearly draws a large, although objectively undetermined, number of attendees. This number fluctuates significantly depending on whether it is the weekend and if the weather is warm and dry. The City did not provide any objective evidence of the number of attendees to the business on a weekend day. However, neither did Mr. Bardon. Bardon should have accurate numbers as he is required to track this as part of his duty to pay the attendance tax to the City. However, he did not provide such information. Interestingly, the City?s estimate of the number of attendees, was almost identical to the numbers that can be calculated from Mr. Bardon?s own testimony. This is approximately 4,000 people per weekend day. . The traffic and parking in the area of the Star Lite is clearly impacted by the operation of the business, especially on busier weekends. This causes traffic backups along two main arterials of the City. . Mr. Bardon has attempted to mitigate the parking issue by purchasing additional property surrounding the Star Lite. While this may help provide additional vehicle parking, it also creates more pedestrian traffic into and out of the business. This, combined with the heavy traffic congestion, does create a safety hazard. . Mr. Bardon expressed his frustration with the city not amending its' zoning laws to allow satellite parking on the ACZ zoned property on the south side of 84th Street that he purchased. However, Mr. Bardon also has made no effort to create off-site parking on that property, which is a conforming use for that zone, either. . In either case, if Mr. Bardon was allowed to park cars in the lot on the south side of 84th Street, it does not address how to get these persons safely across 84th Street. They would have to walk some distance west to the intersection with South Tacoma Way, cross 84th Street, and then enter the Star Lite. I believe there would be a tendency for people to simply cut directly across 84th Street, mid-block, unless there is some sort of traffic control or crosswalk. . Mr. Bardon expressed frustration that the City did not accept the recommendations of the traffic engineer he paid to produce a traffic report. While I can understand Mr. Bardon?s frustration, these recommendations must be also be amenable to the City. One engineer?s professional opinion may not be correct, may not be the only professional opinion on the matter, and the data is at least 4 years old at this point. This engineer, was also paid by Mr. Bardon and so the report may not be completely impartial. Page 9 of 12 In reviewing the traffic engineer?s report Mr. Bardon introduced (Exhibit I found several items of note: . It found that the section of 84th Street in front of the Star Lite had 3.2 accidents per million vehicle miles. This is higher than the average of 2.05 per million vehicle miles. . It stated that the, ?Parking and traffic circulation is interrelated.? It noted that the exit from the Star Lite onto 84th Street is located directly where the right turn lane for northbound South Tacoma Way begins which was annotated as, ?An awkward location." . This report?s recommendations for solving the traffic congestion is to turn the northern eastbound lane of 84th Street into a two way turn lane. This would allow cars attempting to access the Star Lite to queue out of a travelled lane, but would also restrict 84th Street to only one lane eastbound. WITNESSES AND EXHIBITS VVHnesses: Lakewood Police Officer Ken Devaney Lakewood Police Officer Tom Arnold Lakewood Police Officer Dave Butts Lakewood Police Sergeant Andy Suver Asst City Manager/Community Development Director Dave Bugher Mr. Hank Bardon Mr. Frank Murakami Exhibits (incorporated into the record of this decision): 1. 84th Street South Technical Report prepared by Jake Traffic Engineering 2. WHPacific Memorandum reviewing Star Lite Swap Meet Satellite Parking 3. Star Lite Weekend Plan Layout 4. Large aerial GIS photo/map of the Star Lite Swap Meet (Not retained) Page 10 of 12 DECISION In deciding this matter, I considered the facts and reasonable conclusions against the rather narrow allegations presented in the Notice and Order, which is essentially that the traffic congestion caused by the operation of the Star Lite creates a safety hazard. Based on the facts and conclusions I have described above, I found this to be true. However, I do not find that the summary revocation/suspension of the Star Lite?s business license is completely appropriate. I have determined that, with a few conditions, the business could take some steps to effectively mitigate much of the safety hazard. There were a number of other issues that were aired by both parties during this hearing. However, as they did not pertain to the allegations contained in the Notice and Order, I am not addressing them with this Order. Page 11 of 12 ORDER I am hereby reinstating the business license for the Star Lite Swap Meet/Garage Sale LLC, Lakewood business license No. with the following conditions: 1) Accurately count attendance each day using a mechanical or electronic counting device at all entrances. Report daily attendance in a report to the City of Lakewood Community Development Department. 2) Submit a Traf?c Management Plan to the City of Lakewood Department of Public Works Transportation Division for approval within 60 calendar days. This plan should detail the temporary traf?c control measures used to control vehicle and pedestrian traf?c ?ow into and out of the business for weekend and other high volume days. This plan should be in compliance with the Manual on Uniform Traf?c Control Devices (MUTCD version 2003). At a minimum, this plan should address the following: a. Ensure all parking attendants maintain a current and valid Washington State Flagger Certi?cation. b. Ensure all parking attendants wear Performance Class 2 High-Visibility Apparel (per 107-1999). 0. Ensure all parking attendants use some type of handheld signaling device such as a stop sign, orange cone, re?ective gloves, and/or signal?ag. (1. Improve signage and pavement markings for all parking stalls and pedestrian walkways on the property in accordance with LMC 18A.50.500. 3) Coordinate and assist the West Pierce Fire and Rescue Department in conducting a ?re inspection on a weekend day to be completed within 60 calendar days. I am setting a review hearing on this matter for: Friday, June 10th at 9:00 AM Lakewood City Hall 6000 Main St SW Lakewood, WA 98499 to review compliance with the above listed conditions. If evidence is submitted that the conditions have been met to the satisfaction of both parties, I will cancel this hearing and let the conditions stand. ORDERED April 14th, 2016 Qau?/m/x (Li (gar/@M/ Unfred, HearingU Officer City of Lakewood Page 12 of 12