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Lastly, he said he only caters to children 5 and older for a limited amount of time; he is not taking the place of a school, is only asking for instruction for 20 children and said there are no safety issues. Jack Bauch asked for the matter to be resolved tonight, understands the Council's concerns for safety, said the Planning Commission supported Mr. Pfund to operate as a day care facility but under a recreational permit. He is shocked that 8 inches of paper has been generated from the matter, said Mr. Pfund owes him $42,000 in rent as of January 15S because of his being out of business and this is the reason why a temporary operation was requested. He is willing to work out any E occupancy issues, noted Mr. Pfund's lease has several existing restrictions, the property is inspected regularly, and he supported staffs recommendation for moving forward with denial of the appeal. Mayor Hosterman closed the public hearing. Councilmember Cook-Kallio said she appreciates the need for a physical fitness facility in the community, is familiar with background checks and said she is profoundly concerned with the fact that the background check began in April and is not yet complete. In her teaching experience she has never known a check to take this long which alarms her. A lot of the safety issues posed have been answered, she agreed with follow-up on occupancy requirements and improvements, thinks that the facility is considered a childcare facility, but was stuck on the background check not being approved. She is sympathetic to the fact that Mr. Pfund is out of business but felt the issue was with the State and she was not sure that the City has not put itself in a liability by allowing a temporary recreation use while awaiting a background check. Mayor Hosterman agreed and voiced concern that if the Council does not make the right decision and Mr. Pfund acts outside the parameters of the conditional use permit, the City could be liable. In response to Mr. Pfund's comments about the Council not being able to determine or answer what a childcare center is, Councilmember Sullivan said the letter from the State indicates that as proposed, the facility is a childcare facility and a license is required. To him, nothing has changed since the Council last heard the item. The Council has asked Mr. Pfund to return when he has a license, he sympathizes with him but also with the City in its position. Councilmember Thorne voiced concerns about the time taken for the background check and questioned its status. Mr. Dolan said staff questioned as to when it would be completed and nothing definitive has been provided. It is his experience that a background check which takes three to four months would generally be a long time. Councilmember McGovern said she participated in the Youth Master Plan process which talks about the quality of childcare and voiced concerns with the facility and inadequacies. She did not want to set the precedent for opening a loading dock door to give 20 children fresh air and sunshine. She said the Municipal Code calls for 75 feet of outdoor play area, with a four foot fence and Title 22 requirements and asked that the Council uphold its codes. Everyone who works with children has a background check and it should be required for all areas of recreation to ensure the safety of children. Based upon these concerns, she supported upholding the appeal and she believes that a background check and childcare license are important for operation of the facility. City Council Minutes Page 6 of 9 January 6, 2009