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RESOLUTION NO. 13-6880
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
HERMOSA BEACH, CALIFORNIA, TO OVERTURN THE PLANNING
COMMISSION ACTION TO DENY A CONDITIONAL USE PERMIT
AMENDMENT AND TO APPROVE A CONDITIONAL USE PERMIT
AMENDMENT TO MODIFY HOURS FOR ON -SALE GENERAL
ALCOHOL AND LIVE ENTERTAINMENT, IN CONJUNCTION WITH
AN EXISTING RESTAURANT ("CAFE BOOGALOO"), AND
SUPERSEDING CITY COUNCIL RESOLUTION 13-6837 AND
PLANNING COMMISSION RESOLUTION 13-26, AT 1238 HERMOSA
AVENUE, LEGALLY DESCRIBED AS LOT 5, BLOCK 34, FIRST
ADDITION TO HERMOSA BEACH, HERMOSA BEACH,
CALIFORNIA
THE CITY COUNCIL OF THE CITY OF HERMOSA BEACH, CALIFORNIA
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. Recitals.
1. On August 20, 2013, the Planning Commission adopted Resolution 13-26 to deny a
request for a Conditional Use Permit (CUP) amendment (13-7) filed by SUS Hermosa LLC
pursuant to Chapter 17.56 of the Hermosa Beach Municipal Code seeking to modify the late -night
hours of an existing restaurant with on -sale general alcohol that closes at midnight daily and with
live entertainment that ceases daily at 11:30 p.m. (previously Cafe Boogaloo), to allow it to close
at 1:00 a.m. on the day following Thursday, Friday, and Saturday nights, Federal and State
holidays, Cinco de Mayo, and St. Patrick's Day; and to allow live entertainment from 9:00 a.m.
Thursday, Friday, and Saturday nights, Federal and State holidays, Cinco de Mayo, and St.
Patrick's Day to 12:30 a.m. the following day for reasons stated in said resolution.
The Commission found the proposal to be inconsistent with Section 17.40.080(B)(1)
because the proposal would increase the cumulative number of hours of late -night hours in the
City contrary to the objectives of that section; experience and empirical evidence shows that late -
night on -sale establishments, and especially those with live entertainment, tend to emphasize
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nightclub activity rather than bona fide restaurant use after 11:00 p.m., with an increased potential
for adverse impacts such as intoxication, unruly behavior, noise, safety issues and impacts to City
services within and in the immediate vicinity of the establishment, inconsistent with Section
17.40.080(B)(2); and Condition of Approval No. 6 did not allow consideration of modification of
hours prior to one year.
Condition No. 6, among others, was applied to the CUP pursuant to Hermosa Beach
Municipal Code Section 17.70.010 when the Planning Commission previously modified the CUP
per Resolution 12-22 by reducing hours of operation from 2:00 a.m. daily to 12:00 midnight daily,
reducing hours for live entertainment from 1:15 a.m. to 11:30 p.m. daily, and eliminating outdoor
dining, together with other changes. Pursuant to Section 2.52.040, on January 22, 2013 the City
Council took jurisdiction of the Planning Commission's decision to modify the CUP, and on
March 12, 2013 the Council adopted Resolution 13-6837 sustaining the Commission's decision.
2. On September 10, 2013 pursuant to Hermosa Beach Municipal Code Section
2.52.040 the City Council took jurisdiction of the Planning Commission's decision per Resolution
13-26. On October 8, 2013 the Council held a public hearing on a modified proposal
subsequently submitted by the applicant to reduce hours of operation on Sunday to Tuesday to
11:00 p.m., to maintain the 12:00 midnight close on Wednesday, and to increase hours of
operation to 1:00 a.m. on the day following Thursday to Saturday, Federal and State holidays,
Cinco de Mayo, and St. Patrick's Day.
3. A minor floor plan change was administratively approved by the Community
Development Department on October 1, 2013 consistent with Condition of Approval No. 1.
SECTION 2, Based on the Staff Report, testimony, the record of the decision of the
Planning Commission, and evidence received, both oral and written, the City Council makes the
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following findings that the modified CUP is consistent with Section 17.40.020 and 17.40.080(B)
and will not result in adverse impacts to the surrounding area, City services or the environment:
1. Pursuant to Section 17.40.080(B)(2), the proposal to reduce hours on Sunday to
Tuesday to 11:00 p.m., maintain the current 12:00 close on Wednesday, and increase hours from
12:00 midnight to 1:00 a.m. on the day following Thursday through Saturday and holidays will
cumulatively decrease the number of late -night hours on a weekly basis by 0.5 hour consistent
with the objectives of Section 17.40.080(B).
2. Pursuant to Section 17.40.080(B)(3), the increase in hours on the day following'
Thursday through Saturday and holidays is insignificant and offset by the decrease in late -night
hours, the performance area within the establishment was significantly reduced per a minor floor
plan amendment approved by the Community Development Department, Condition of Approval
No. 15 restricts the number of televisions and similar devices to four (4), and other controls
applied to this CUP will remain in effect and reduce the potential for adverse impacts. These
factors reduce the potential for alcohol and live entertainment to become the focus of the
operations, and accordingly reduce the potential for nightclub activity or a sports bar and the
adverse effects that have been demonstrated by such activities.
3. Pursuant to Section 17.40.080(B)(3), the establishment will be operated by a new
tenant who is a proven operator of establishments in the city with late -night hours, on -sale alcohol
and live entertainment which have operated without adverse impacts to the surrounding area, and
it is anticipated such managerial and operational controls will be exhibited at the new operation.
4. Pursuant to Section 17.40.020, the CUP amendments will not change or intensify the
use or alter the floor plan or make other modifications that could result in adverse impacts to the
surrounding area, City services or the environment.
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SECTION 3. The project is Categorically Exempt from the California Environmental
Quality Act (CEQA) pursuant to CEQA Guidelines 15301(a) because the project consists of
interior modifications involving no expansion of use beyond the existing use.
SECTION 4. Based on the foregoing, and pursuant to Sections 17.40.020 and
17.40.080(B) of the Hermosa Beach Municipal Code, the City Council hereby overturns the
decision of the Planning Commission and approves a Conditional Use Permit amendment for on -
sale general alcohol and live entertainment in conjunction with a restaurant for the property at
1238 Hermosa Avenue, superseding Planning Commission Resolution 13-26 and City Council
Resolution 13-6837, subject to Conditions of Approval as follows:
1. The development and continued use of the property, both interior and exterior, shall
be in conformance with the floor plan approved on October 1, 2013 and reviewed by the City
Council on October 8, 2013. Other than trivial or insignificant deviations in the placement or
arrangement of furniture, no change 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, expanded entertainment or
greater occupancy, absent approval by the Planning Commission or City Council by way of
modification of the Conditional Use Permit.
2. Architectural treatments shall be as shown on building elevations of submitted plans
and any modification shall require approval by the Community Development Director. Any roof-
top equipment shall be integrated into the architecture and hidden from street view.
3. The continued operation of the business shall be as a bona fide restaurant; the kitchen
shall be equipped to prepare food from its component ingredients whenever the restaurant is open
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and it shall offer a full -service lunch and/or dinner menu; and food service from the menu shall be
available during all hours that the establishment is open for business.
4. A minimum of fifty (50) percent of the total gross sales, computed monthly, shall
result from the sale of prepared food. The Permittee shall maintain a summary of gross receipts of
food and alcohol indicating the percentage of each of the total on a monthly basis. The Permittee
shall submit said summaries to the Police Chief on a quarterly basis. The Police Chief reserves
the right to request additional verification as needed to verify compliance with this Conditional
Use Permit. Failure to provide said quarterly reports on a regular basis may result in a request by
the City to the California Department of Alcoholic Beverage Control (ABC) to investigate the
subject business's compliance with the alcohol license conditions.
5. Hours of operation shall be limited to 8:00 a.m. to 11:00 p.m. on Sunday, Monday
and Tuesday; 12:00 midnight on Wednesday; and 1:00 a.m. the day following Thursday, Friday,
Saturday, Federal and State holidays, Cinco de Mayo, and St. Patrick's Day. All alcohol sales,
service and consumption shall cease and all customers shall vacate the premises no later than the
stated time of close and the entrance doors shall be locked. Staff may remain onsite after the
business is closed to the public for the purposes of cleaning, site maintenance and securing the
premises only.
6. A report shall be made to the City Council regarding compliance of the establishment
with this Permit six (6) months following the commencement of operations.
7. The hours for live entertainment shall be limited to 4:00 p.m. to 30 minutes prior to
the close of business on Monday through Friday, and from 9:00 a.m. to 30 minutes prior to the
close of business on Saturdays, Sundays, Federal and State holidays, Cinco de Mayo, and St.
Patrick's Day.
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8. Live entertainment shall be incidental to food service, and the types of live
entertainment permitted shall be consistent with the definition thereof in Section 17.04.050 of the
Hermosa Beach 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 for the purpose of dining.
9. Management shall be responsible for the music/entertainment volume levels. During
the performance of amplified live entertainment, the exterior doors and windows shall remain
closed.
10. The building shall be equipped with acoustic features to maximize soundproofing
which shall include the use of double -pane windows or an equivalent, and the installation of air
conditioning so that windows and doors can remain closed during performances. Any additional
acoustic treatment shall be provided in the interior if necessary to comply with the City's Noise
Control Ordinance in Chapter 8.24.
11. Noise emanating from the property shall be within the limitations in the City's
Noise Control Ordinance in Chapter 8.24 and shall not create a nuisance to surrounding residential
neighborhoods and/or commercial districts. Noise emanating from the property shall be
monitored to verify compliance with the Noise Ordinance in response to any complaints.
12. Alcohol may be provided for on -premises consumption only and in a manner
consistent with the license issued by the ABC.
13. Drink minimums of any kind shall not be imposed at any time. Entry to the
establishment shall not be limited to persons 21 years of age or older.
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14. The Permittee shall not solicit, advertise, or otherwise encourage the use of its
premises for "pub crawl" activities where persons travel in an organized or predetermined fashion
between premises with the goal of consuming alcoholic beverages at each stop along the way.
15. The establishment shall display no more than four (4) televisions, monitors,
projections or similar devices.
16. The business shall employ adequate staffing and management/supervision to prevent
serving underage persons and over -serving alcohol and to prevent loitering, unruliness and
boisterous behavior by patrons both inside and outside on the business premises or in the
immediate area. A manager shall remain on the premises daily until at least fifteen minutes after
the business closes. All staff serving alcoholic beverages or monitoring patrons shall complete the
Licensee Education on Alcohol and Drugs Training (LEAD) or an equivalent staff training
program offered by the California Department of Alcoholic Beverage Control.
17. If the Police Chief determines that there are a disproportionate number of police
calls 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 notify the Community Development
Director of these actions, who shall forthwith schedule a public hearing before the Planning
Commission to consider modification or revocation of this Conditional Use Permit.
18. The privilege granted to the Permittee to serve alcohol for on -premises consumption
and to offer live entertainment may be suspended pursuant to the provisions of this condition and
the Hermosa Beach Municipal Code, as it exists today or may in the future be amended. The
business may be subject to the suspension provisions below, in the event that the business is found
by the City Manager, Fire Chief or Police Chief to be in violation of any of the following:
a. Conditions of this Conditional Use Permit;
b. Conditions of the California Department of Alcoholic Beverage Control license;
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c. Police calls and/or public disturbances that are found to be increasing and in the I
opinion of the Police Chief constitute serious offenses or pose a risk to public safety or health; or
d. The maximum posted Occupant Load.
Should one violation occur, the City Manager may order the premises closed and all
business operations suspended for three days, two of which shall fall on a Friday and Saturday. If
a second violation should occur, the City Manager may order the premises closed and all business
operations suspended for three days, two of which shall fall on a Friday and Saturday, and the
matter may be set for a public hearing before the Planning Commission to consider modification
or revocation of this Conditional Use Permit. The Permittee shall be notified of the suspension in
writing. The actual date of the suspension and whether a violation has occurred shall be as
determined by the City Manager.
The Permittee may appeal the suspension by filing a 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
violation and shall uphold the suspension if the evidence supports the existence of the violation.
The City Council's decision shall be final.
19. The business owner shall reapply for an updated occupant load calculation. 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 approved floor
plan which has been reviewed and approved by the Department of Community Development and
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Fire Department. An approved occupant load sign shall be posted in the business as directed by
the Fire Department.
20. The business owner shall install and/or maintain security lighting (shielded with
illumination maintained in the subject property so that it does not affect neighboring uses) and
security cameras on the exterior of the building in the parking area, to the satisfaction of the Police
Chief and Community Development Director.
21. The establishment shall not adversely affect the welfare of the residents, and/or
commercial establishments nearby.
22. The business shall prevent loitering, unruliness and boisterous activities of the
patrons outside the business or in the immediate area.
23. The exterior of the premises shall be maintained in a neat and clean manner, and
maintained free of graffiti at all times.
24. Runoff from washing and/or rinsing of restaurant equipment, including floor mats,
food preparation utensils and other coverings, shall drain to the sewer system only; under no
circumstances shall the site run-off drain to the stormwater system. All operations shall comply
with Chapters 8.44 and 8.56 of the Hermosa Beach Municipal Code.
25. Two parking spaces shall be provided and utilized in the parking lot adjacent to the
rear door. This area shall not be used for storage other than approved solid waste enclosures.
26. The business shall participate in the City's downtown parking validation program,
providing validations for parking in public lots for no less than two hours.
27. The project shall comply with all requirements of the City and the Hermosa Beach
Municipal Code.
28. 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
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addition to any other remedy available at law, in equity or as provided in the Hermosa Beach
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, any
illegal condition existing on the property shall be remedied before an application for a permit,
license, contract or other entitlement provided for in the Code (other than permits necessary to
cure the illegal condition) shall be accepted as complete or processed in connection with the
property pursuant to Hermosa Beach Municipal Code Section 2.84.010.
29. This Conditional Use Permit shall supersede and replace all Conditional Use Permits
previously approved for the property, and Planning Commission Resolution 95-16 is hereby
rescinded and is of no further force and effect. Due to failure to commence the activity within the
time permitted in Resolution 95-16, the allowance for outdoor dining pursuant to Resolution 95-
16 is null and void, except as otherwise allowed by the Hermosa Beach Municipal Code as a
permitted use without the need for a Conditional Use Permit.
30. This Conditional Use Permit for a restaurant with on -sale alcohol and live
entertainment shall be reviewed by the Planning Commission six months after the adoption of this
Resolution and shall be subject to review by the Planning Commission as part of the City's review
of on -sale establishments.
31. If a review of this Conditional Use Permit occurs, the Planning Commission may
`amend the above conditions and/or impose any new conditions deemed necessary to mitigate
detrimental impacts on the environment or neighborhood arising from use of the premises.
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SECTION 5. This grant shall not be effective for any purposes until the Permittee and the
owners of the property involved have filed at the office of the Planning Division of the
Community Development Department their affidavits stating that they are aware of, and agree to
accept, all of the conditions of this grant. The Conditional Use Permit 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 of
approval is found to be invalid by a court of law, all the other conditions shall remain valid and
enforceable.
Permittee shall defend, indemnify and hold harmless the City, it agents, officers, and
employees from any claim, action, or proceeding against the City or its agents, officers, or
employee to attack, set aside, void or annul this permit approval, which action is brought within
the applicable time period of the State Government Code. The City shall promptly notify the
Permittee of any claim, action, or proceeding and the City shall cooperate fully in the defense. If
the City fails to promptly notify the Permittee of any claim, action or proceeding, or if the City
fails to cooperate fully in the defense, the Permittee shall not thereafter be responsible to defend,
indemnify, or hold harmless the City.
The Permittee shall reimburse the City for any court and attorney's fees which the City
may be required to pay as a result of any claim or action brought against the City because of this
grant. Although the Permittee is the real party in interest in an action, the City may, at its sole
discretion, participate at its own expense in the defense of the action, but such participation shall
not relieve the Permittee of any obligation under this condition.
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 applicable to any
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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.
SECTION 6. Pursuant to the Code of Civil Procedure Section 1094.6, any legal
challenge to the decision of the City Council must be made within 90 days after the final decision
by the City Council.
PASSED, APPROVED and ADOPTED this 22"d day of October, 2013.
PRESIDENT of
ATTEST:
City Clerk
1 ai1dMAVOR of the City of Hermosa Beach, California
APPROVED
Attorney
TO FORM:
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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. 13-6880 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 22, 2013.
The vote was as follows:
AYES: DiVirgilio, Duclos, Fishman, Mayor Bobko
NOES: Tucker
ABSTAIN: None
ABSENT: None
Dated: October 22, 2013
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Elaine Doerfling, City Cl 'k