HomeMy WebLinkAboutRES 13-6837 (CUP-ON-SALE GENERAL ALCOHOL AND LIVE ENTERTAINMENT)1
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RESOLUTION NO. 13-6837
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HERMOSA
BEACH, CALIFORNIA, TO SUSTAIN THE PLANNING COMMISSION
ACTION MODIFYING A CONDITIONAL USE PERMIT TO ALLOW ON -
SALE GENERAL ALCOHOL AND LIVE ENTERTAINMENT, IN
CONJUNCTION WITH AN EXISTING RESTAURANT ("CAFE
BOOGALOO"), AND SUPERSEDING P.C. RESOLUTION 12-22, 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. The Planning Commission on December 5, 2012 conducted a duly noticed public
hearing pursuant to Section 17.70.010 of the Hermosa Beach Municipal Code to consider the
revocation or modification of the Conditional Use Permit (CUP) governing the business at 1238
Hermosa Avenue approved May 16, 1995 (P.C. Resolution 95-16), which allows on -sale general
alcohol, outdoor dining and live entertainment in conjunction with an existing restaurant. Based
on evidence received at the public hearing, the Planning Commission adopted Resolution 12-22
on January 15, 2013 modifying the Conditional Use Permit and reducing hours of operation from
2:00 a.m. daily to 12:00 midnight daily and reducing hours for live entertainment from 1: 15 a.m. to
11:30 p.m. daily, as well as incorporating ABC license requirements to affix certain furniture to the
floor to reduce the potential to convert the space to a nightclub, requirements to ensure restaurant
use is the primary function including reporting of alcohol/food sales ratios, and installation of
security cameras in the parking lot, among others. The modification also legalized changes to the
floor plan that had been made by the operator and eliminated the allowance for outdoor dining, which
had never been implemented and would be inconsistent with the modified floor plan.
2. Pursuant to Hermosa Beach Municipal Code Section 2.52.040, on January 22, 2013
the City Council took jurisdiction of the Planning Commission's decision to modify a Conditional
Use Permit as per Resolution 12-22 with regard to 1238 Hermosa Avenue.
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3. On March 12, 2013, the City Council held a duly noticed public hearing to
consider the modification of the Conditional Use Permit at which time testimony and evidence,
both oral and written, was presented to and considered by the Council.
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
following findings:
1. The use for which the Conditional Use Permit was originally granted has been
exercised so as to be detrimental to the public health and safety. The Police Department has
identified a pattern of serious incidents and behavior over the past year in violation of Condition 2
of Section II of Planning Commission Resolution 95-16, reflecting lack of security and poor
management, even with use of additional security personnel and protocols, thereby posing a risk
to public safety, adverse effects to the surrounding area, and impacts to police services and public
safety by requiring a disproportionate share of the law enforcement resources and reducing those
available for the city as a whole. Of the nine serious incidents provided in the December 5, 2012
Planning Commission staff report determined by the Police Chief to be related to the conduct of
business at the subject location, including battery, assault with a deadly weapon, unlawful
possession of a controlled substance, and public intoxication, all occurred between 12:00 midnight
and 2:30 a.m.
Subsequent to the modification hearing, the Hermosa Beach Police Department reports that on
February 10, 2013 officers responded to Caf6 Boogaloo on the report of underage females inside
the bar. The females were contacted and one did not have identification, but got inside even
though there was a doorman. The other presented a California identification card, however the
picture did not resemble her. The female finally acknowledged it was a friend's ID card and not
hers. The 20-year-old female was cited for providing a false identification to officers and false
information to officers. No employees of the bar were cited.
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The Hermosa Beach Police Department also reports that "LA Impact" (Los Angeles Intra-
Agency Metropolitan Police Apprehension Crime Task Force) and ABC investigators conducted
an undercover investigation involving bars that they received information were selling narcotics.
During this investigation that went from February 2012 to October 2012, employees at Caf6
Boogaloo sold narcotics and marijuana to undercover investigators. It was also determined during
this investigation that the investigators were never told to leave the bar after asking for drugs and
they were told that when the dealer showed up the employee would point him out. When the
owners were advised of the results of the investigation they advised the investigators those
employees were no longer employed at Boogaloo. Caf6 Boogaloo has tentatively agreed to a 20-
day suspension of their liquor license and three years' probation based on narcotics sales tied to
employees of their business.
The provision of live entertainment and alcohol sales, in combination with late -night
hours, creates a focus on nightclub activity rather than restaurant use, resulting in intoxication,'
unruly behavior, and safety issues within and in the immediate vicinity of the establishment. Such
activity has the potential to exacerbate negative impacts experienced in the downtown area (which
exhibits a high concentration of alcohol serving establishments as evidenced by the adoption of
regulations in H.B.M.C. Section 17.40.080 to cap and reduce the intensification of late night
alcohol serving establishments), and this activity further impacts law enforcement services by
requiring a disproportionate share of the law enforcement resources available for the city as a
whole. The abundance of televisions adds to a sports bar atmosphere with a focus on alcohol
rather than food consumption, which can result in noise, over -serving, intoxication, unruly
behavior, and management problems.
2. The Conditional Use Permit is being exercised contrary to the terms of the
conditions of approval and in violation of the regulations imposed by the Department of Alcoholic
Beverage Control ("ABC") pursuant to its Type 47 license. The establishment is not operating as
a restaurant as defined by H.B.M.C. Section 17.04.030, which requires that a minimum of fifty
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(50) percent of the total gross sales, computed monthly, shall result from the sale of prepared
food. The City's consultant retained to audit food and alcohol sales prepared an assessment based
on the unaudited profit and loss summary provided by the business owner, which shows that food
sales only comprised between 37% and 42% of the total sales each month between January 2011
and October 2012.
On March 4, 2013 the consultant provided his final audited report indicating alcohol sales
exceeded 60% for many of the months in 2011 and 2012; average annualized food to alcohol sales
ratio percentages were 55/45 in 2010, 59/41 in 2011, and 61/39 in 2012 (January -October),
indicating an upward trend of increasing alcohol sales as opposed to focus on restaurant use.
The approved floor plan in the CUP has not been implemented, meaning that the business
is not operating in compliance with the floor plan approved for the establishment as required in
the conditions of approval. Additionally, the operation is not in compliance with the Department
of Alcohol and Beverage Control (ABC) license condition requiring fixed tables. The approved
floor plan in the CUP with a bar counter in the center of the room and ABC license condition to
maintain this central table and several tables in front of the stage in fixed positions serve an
important purpose, as these conditions reduce the ability for people to congregate in front of the
stage or to establish an expansive dance area. Alteration of the approved floor plans can contribute
to a nightclub, rather than a restaurant, atmosphere.
The outdoor dining element of the CUP was not implemented within the two years and has
expired by operation of law per H.B.M.C. Section 17.70.020. Thus, it should be eliminated from
the CUP (although certain outdoor dining activities may still be permitted under the H.B.M.C.,
subject to the Code's terms and conditions). The area designated for onsite parking
accommodating two spaces on the 1995 site plan located adjacent to the rear door has been used
for storage of miscellaneous items rather than being maintained for parking without approval of a
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parking reduction. Failure to comply with conditions of approval also demonstrates an emphasis
on bar or nightclub activity and poor management.
3. The conditions of approval are found to be inadequate to mitigate the impacts of
the uses allowed by the permit, and the public health, safety and welfare merit modification of the
permit. The combination of operational issues identified above, combined with late -night hours
and live entertainment, have created an emphasis on bar or nightclub activity rather than
restaurant use and the impacts identified above. The operation is not properly conditioned to
accommodate nightclub activity. Modified conditions to reduce identified impacts and security
concerns and focus the business on a safe restaurant use with alcohol and live entertainment as
incidental uses, rather than on bar or nightclub use, have been identified, including a reduction of
hours, and are incorporated into this modified CUP.
SECTION 3. Based on the foregoing, and pursuant to Section 17.70.010 of the H.B.M.C.,
the City Council hereby modifies the Conditional Use Permit for on -sale general alcohol and live
entertainment and eliminates outdoor dining from the CUP in conjunction with a restaurant for the
property at 1238 Hermosa Avenue, which supersedes P.C. Resolution 95-16 as follows:
1. The development and continued use of the property, both interior and exterior,
shall be in conformance with plans reviewed by the City Council on March 12, 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 be 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
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is open 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 to 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 12:00 midnight daily. All
alcohol sales, service and consumption shall cease and all customers shall vacate the premises no
later than the stated time of closing and the entrance doors shall then 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. To allow for an adequate monitoring period, no extension of operating hours shall
be considered or permitted for at least one year from the date of this Resolution.
7. The hours for live entertainment shall be limited to 4:00 p.m. to 11:30 p.m. on
Monday through Friday, and from 9:00 a.m. to 11:30 p.m. on Saturdays, Sundays, Federal and
State holidays, Cinco de Mayo, and St. Patrick's Day.
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
H.B.M.C. 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.
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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 H.B.M.C. 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 Control Ordinance in response to any
complaints.
12. Alcohol may be provided for on -premise 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.
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
among 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 (15) minutes
after the business closes. All staff serving alcoholic beverages or monitoring patrons shall
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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 I
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;
c. Police calls and/or public disturbances that are found to be increasing and in the
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
determined by the City Manager.
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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 shown which has been reviewed and approved by the Department of
Community Development and the 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 the 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
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circumstances shall site run-off drain to the stormwater system. All operations shall comply with
Chapters 8.44 and 8.56 of the H.B.M.C.
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 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
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 attorneys' 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
H.B.M.C. 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 H.B.M.C. as a permitted use
without the need for a Conditional Use Permit.
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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.
SECTION 4. 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. The 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
employees 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 attorneys' 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
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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
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 5. 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.
SECTION 6. The City Clerk shall certify to the passage and adoption of this Resolution;
shall cause the original of the same to be entered among the original Resolutions of the City
Council; and shall make a minute of the passage and adoption thereof in the minutes of the City
Council meeting at which the same is passed and adopted.
PASSED, APPROVED, and ADOPTED this 12`h day of March 2013.
ATTEST:
City Clerk
of the City
I
and MAYOR of the City of Hermosa Beach, California
APPROVED AS TO FORM:
City Attorney
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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. 13-6837 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 March 12, 2013.
The vote was as follows:
AYES: DiVirgilio, Duclos, Fishman, Tucker, Mayor Bobko
NOES: None
ABSTAIN: None
ABSENT: None
Dated: March 12, 2013
n
Elaine Doerfling, City Cl k