HomeMy WebLinkAboutRES 15-7000 1332 (CONDITIONAL USE PERMIT)1
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RESOLUTION NO. 15-7000
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HERMOSA
BEACH, CALIFORNIA, TO MODIFY THE CONDITIONAL USE PERMIT
TO ALLOW ON -SALE GENERAL ALCOHOL AND LIVE
ENTERTAINMENT, IN CONJUNCTION WITH AN EXISTING
RESTAURANT (`THE ESTABLISHMENT') AT 1332 HERMOSA
AVENUE, OVERTURNING THE PLANNING COMMISSION DECISION
TO REVOKE SAID CONDITIONAL USE PERMIT, FOR PROPERTY
LEGALLY DESCRIBED AS LOTS 10, 11 & 12, BLOCK 34, FIRST
ADDITION TO HERMOSA BEACH TRACT
SECTION 1. The Planning Commission conducted a duly noticed public hearing to
consider the revocation or modification of the Conditional Use Permit (CUP) governing the
business at 1332 Hermosa Avenue, granted by the City Council on September 23, 2008 (C.C.
Resolution 08-6617), and amended by the City Council (C.C. Resolution 12-6780) which allows
on -sale general alcohol and live entertainment in conjunction with an existing restaurant (`The
Establishment') at 1332 Hermosa Avenue. Said hearing was conducted pursuant to Section
17.70.010 of the Hermosa Beach Municipal Code on May 19, 2015, at which testimony and
evidence, both written and oral, was presented to and considered by the Planning Commission.
SECTION 2. Following the public hearing, on June 16, 2015, the Planning Commission
approved P.C. Resolution 15-17 revoking said Conditional Use Permit pursuant to the findings of
Section 17.70.010(D) of the Hermosa Beach Municipal Code, as contained therein.
SECTION 3. At the meeting of June 23, 2015, the City Council, pursuant to Section
2.52.040 of the Municipal Code, initiated review of the Planning Commission decision to revoke
the CUP for "The Establishment."
SECTION 4. On September 24, 2015, the City Council conducted a duly noticed public
hearing to review and reconsider the Planning Commission decision to revoke the Conditional Use
Permit (CUP) at which the record of the decision of the Planning Commission and testimony and
evidence, both written and oral, was presented to and considered by the City Council.
SECTION 5. Based on evidence received at the public hearing, the City Council makes
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the following findings to modify the Conditional Use Permit and overturn the Planning
Commission decision to revoke the Permit, pursuant to Section 17.70.010(D) of the Hermosa
Beach Municipal Code:
1. It has been demonstrated that the permit granted is being exercised contrary to
terms or conditions of such approval as set forth in the record, and in Planning Commis
Resolution 15-17. However, the most serious and continuous violation is specific to
requirement that the permittee submit audited and certified summaries of gross receipts of food
and alcohol sales to the City on a quarterly basis, and the lack of cooperation with the City's
consultant to provide sufficient data relating to food and beverage sales for the City to complete
this audit. The business has otherwise not been operated in a manner that results in detrimental or
adverse impacts to the surrounding neighborhood.
2. The City Council has recently changed the definition of restaurant to no longer include
a food sales ratio in the commercial land use definition (Section 17.04.050) and instead added a
new provision that, should the City initiate CUP modification or revocation proceedings due to
operational violations (Section 17.40.080(C)), the City may appoint a qualified auditor to review
these sales records and the data systems used to generate the sales information to determine if the
business is operating as a restaurant.
3. The operation of the business has only resulted in limited and relatively
violations as set forth in the record, including the failure as noted above to report food sales; it has
not consistently caused significant adverse impacts. Also the CUP already contains limits on hours
of operation (midnight) as well as other operational conditions. Therefore, a modification to bring
the conditions of approval into alignment with the updated Code standard 17.40.080(C) is
commensurate with and related to the violations noted above, and thus more appropriate than
revoking the permit and all the rights contained therein.
4. The Establishment has ceased operations and vacated the premises as of the date
and the property owner has requested that the CUP not be revoked in order that a new tenant be
allowed to occupy the premises and operate pursuant to the terms of the CUP. In that the CUP
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runs with the land, the cessation of operations of The Establishment is a further mitigating
circumstance that warrants overturning the decision of the Planning Commission and i
modifying the CUP to be consistent with the above -referenced changes to the zoning
and to assure that any new tenant operates as a bona fide restaurant.
SECTION 6. Based on the foregoing, and pursuant to Section 17.70.010 of the H.B.M.C.,
the City Council hereby modifies the Conditions of Approval of the Conditional Use Permit for
on -sale alcohol and live entertainment in conjunction with a restaurant for the property at 1332
Hermosa Avenue, which are set forth here in full, and which supersede the conditions contained in
City Council Resolutions 08-6617 and 12-6780.
Permitted use: dining. alcohol, entertainment
1. The continued operation of the business shall be as a bona fide restaurant:
kitchen shall be equipped to prepare food from its component ingredients whenever the
restaurant is open and it shall offer a full -service lunch and/or dinner menu; food service from
the menu shall be available during all hours that the establishment is open for business, provided
that said food service may cease one hour prior to closing daily.
2. Alcohol may be served for on -premise consumption only and in a manner consistent
with its license issued by the State Department of Alcoholic Beverage Control (ABC).
3. The permittee shall maintain sales reports showing the actual items sold and price
charged and invoices for all food, nonalcoholic beverages and alcohol beverages sold for the prior
twelve (12) months. Should the City initiate a CUP modification or revocation proceeding, at the
City's discretion, the permittee may be required to provide: (a) a statement of the percentage of
gross sales, computed monthly, that resulted from the sale of prepared food for not longer than the
prior twelve (12) months; and (b) the supporting data upon which the percentage is based. The City
may also require an audit of the records of the business by a certified public accountant to
determine the gross sales of food and alcohol or a forensic audit by a qualified auditor selected by
the City of the information and data systems by which the information is produced.
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4. Live entertainment incidental to food service is permitted, and the types permitted
shall be consistent with definition thereof in Section 17.04.050 of the Municipal Code and may
include live music, amplified (including disc jockeys) or non -amplified and similar live
performances such as stand-up comedy, and/or live theater on a regular basis. Live entertainment
shall be "incidental" in the sense that it serves to entertain customers who are in the premises
the purpose of dining. Dancing by both employees and patrons is strictly prohibited and signs sh
be maintained in the restaurant notifying of this restriction.
5. Admission shall not be charged for entrance into the business, nor shall dri
minimums of any kind be imposed at any time. Entry to the establishment shall not be limited
persons 21 years of age or older.
6. The business is prohibited from using "outside promoters" to advertise the venue and
to organize and produce events at the venue. Promoters as used herein are described as "an
individual or organization that uses the facilities of another owner to organize, oversee, or
otherwise promote entertainment that is not part of the primary business use." The business shall
be under the exclusive control of the owners at all times.
7. The permittee shall not solicit, advertise, or otherwise encourage the use of its
premises for "pub crawl" activities whereby persons travel in an organized or predetermined
fashion between premises with the goal of consuming alcoholic beverages at each stop along the
way.
Hours of operation
8. The hours of operation for all operations of the restaurant, including the bar areas,
shall be limited to between 7:00 A.M. and 12:00 midnight daily, except for New Year's Eve, when
the hours may be extended to 1:00 A.M. on January 1. Live Entertainment shall be limited to
between 7:00 P.M. and 11:30 P.M. Thursdays through Sundays and on Federal and State holidays,
Cinco de Mayo, and St. Patrick's Day. All customers shall vacate the premises by not later than
12:00 midnight (1:00 A.M. on January 1) and the doors shall be locked.
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Floor plan
9. The furniture and interior improvement within the business operation shall conform t(
the floor plan dated December 7, 2011 attached as "Exhibit A." Other than trivial or insignifican
deviations in the placement or arrangement of furniture, no change whatsoever shall be made to
the interior of the premises that is inconsistent with the approved floor plan and under no
circumstances shall furniture or other interior/exterior improvements be rearranged to
accommodate dancing, more entertainment or greater occupancy absent approval by the
Commission by way of modification of the Conditional Use Permit.
Occupant Load; overcrowdin
10. The Fire Department shall maintain a record of the posted allowable occupant load for
the business and regularly check the business for occupant load compliance. The occupant load
shall not exceed the amount permitted as prescribed by the California Building Code, based on the
floor plan shown in Exhibit A which has been reviewed and approved by both the Department of
Community Development and Fire Department. An approved occupant load sign shall be posted in
the business as directed by the Fire Department.
The privilege granted to the permittee to serve alcohol for on -premise consumption and to
offer live entertainment may be suspended pursuant to the provisions of the condition and the
Hermosa Beach Municipal Code, as it exists today or as may in the future be amended. In the
event that the business is found by the Fire or Police Department, following a count -out, to be in
excess of the posted maximum occupant load, the City Manager may suspend the sale and service
of alcoholic beverages and the operation of live entertainment for one day. If the business is f
to be in violation of occupant load a second or more times within twelve months of the
violation, the suspension shall be imposed for three days.
The permittee shall be notified of the suspension in writing. The date of the suspensior
shall be as determined by the City Manager. The permittee may appeal the suspension by filing
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written notice of appeal with the City Clerk within ten calendar days of receipt of the notice of
suspension. Filing a written notice of appeal shall stay the notice of suspension while the appeal is
pending. The appeal shall be heard by the City Council at its next regular meeting, subject to
agenda posting requirements. The City Council shall hear testimony and consider evidence
regarding the factual circumstances of the over -occupancy violation and shall uphold the
suspension if the evidence supports the existence of the violation. The City Council's decision
shall be final.
Nuisance avoidance, patron behavior and noise
11. The business shall not operate in a manner that adversely effects or interferes with
comfortable enjoyment of neighboring residential and commercial property.
12. The business shall employ adequate staffing and management/supervision to
serving underage persons, over -serving alcohol, and loitering, unruliness, and boisterous 1
by patrons both inside and outside on the business premises, or in the immediate area.
13. If the Police Chief determines that there are a disproportionate number of police
to the business due to the disorderly or disruptive behavior of patrons and the inability or refusal of
the business to manage its patrons, the Chief shall so notify the Director of Community
Development of this action, who shall forthwith schedule a public hearing before the Planning
Commission to consider modification or revocation of this Conditional Use Permit.
14. The building shall be equipped with acoustic features to maximize sound proof
which shall include the use of double -pane windows or an equivalent and the installation of
conditioning so that windows and doors can remain closed during performances.
15. Noise emanating from the property shall be within the limitations prescribed by the
City's Noise Ordinance and shall not create a nuisance to surrounding residential neighborhoods,
and/or commercial establishments. Noise emanating from the property shall be monitored to
verify compliance with the Noise Ordinance in response to any complaints.
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16. The exterior of the premises shall be maintained in a neat and clean manner,
maintained free of graffiti at all times.
Miscellaneous conditions
17. The provisions of this Conditional Use Permit shall take effect immediately upon
adoption by the Planning Commission and upon completion of the applicable appeal period,
should no appeal be filed.
18. This Conditional Use Permit shall supersede and replace all Conditional Use Permits
previously approved for the property and Resolution 96-5789 is hereby rescinded and is of no
further force and effect.
19. The restaurant shall be subject to review by the Planning Commission six months
the effective date of this Resolution and annually thereafter to verify conformance with the
Conditions of Approval. The Planning Commission may review this Conditional Use Permit
may schedule a modification hearing to amend the subject conditions or impose any new
conditions if deemed necessary to mitigate detrimental effects on the surrounding area resulting
from the subject use.
20. The operation of the business shall comply with all Ordinances, regulations and
laws applicable to a business of this kind in effect as of the date hereof or hereafter adopted. In
addition to any other remedy available at law, in equity or as provided in the Municipal Code, (i)
any significant or material violation, or (ii) any repeated, continuous or sustained violation of any
condition of approval of this Conditional Use Permit shall constitute cause for revocation of this
Permit. The Permittee shall be required to reimburse the City fully for its costs and expenses,
including but not limited to attorney's fees, in undertaking any such corrective action.
Reimbursement of enforcement costs shall constitute a civil debt and may be collected by any
means permitted by law. In the event that violations of this Permit occur, the City shall refrain
from issuing further permits, licenses or other approvals until such violation has been fully
remedied.
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SECTION 7. The Conditional Use Permit, as modified, shall be recorded, and proof of
recordation shall be submitted to the Community Development Department.
Each of the above conditions is separately enforced, and if one of the conditions o
approval is found to be invalid by a court of law, all the other conditions shall remain valid and
enforceable.
The subject property shall be developed, maintained and operated in full compliance with
the conditions of this grant and any law, statute, Ordinance or other regulation hereafter adopted
that is applicable to any development or activity on the subject property. Failure of the permittee
to cease any development or activity not in full compliance shall be a violation of these conditions.
The Planning Commission may review this Conditional Use Permit and may amend the
subject conditions or impose any new conditions if deemed necessary to mitigate
effects on the neighborhood resulting from the subject use.
This Resolution shall take effect immediately upon its passage and adoption. The City
Clerk shall certify to the passage and adoption of this Resolution, shall enter the same in the book
of original Resolutions of said city; and shall make a minute of the passage and adoption thereof in
the records of the proceedings of the City Council at which the same is passed and adopted.
PASSED, APPROVED AND ADOPTED this 13th day of October, 2015.
PRESIDENT-ofthe City Council
ATTEST:
City Clerk
YOR of the City of Hermosa Beach, California
APPROVED AS O FORM:
City Attorney
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SEATING AND OCCUPANCY
2537 D PACIFIC COAST HIGHWAY
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FLOOR PLAN
TORRANCE, CAUFORNIA 90505
1332 HERMOSA AVENUE
(310) 375-9992 fA%(310) 378-7935
ryERMOSABEACH, CA90524
BUILDING AS BUILT
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES )
CITY OF HERMOSA BEACH )
I, Elaine Doerfling, City Clerk of the City of Hermosa Beach, California, do
hereby certify that the foregoing Resolution No. 15-7000 was duly and regularly passed,
approved and adopted by the City Council of the City of Hermosa Beach at a Regular
Meeting of said Council at the regular place thereof on October 13, 2015.
The vote was as follows:
AYES:
Fangary, Tucker, Mayor Petty
NOES:
None
ABSENT:
DiVirgilio
ABSTAIN:
None
Dated: October 14, 2015
Elaine Doerfling, City er