HomeMy WebLinkAboutPC Resolution 12-22 - (1238 Hermosa, Cafe Boogaloo)P.C. RESOLUTION 12-22
A RESOLUTION OF THE PLANNING COMNIISSION OF THE CITY OF
HERMOSA BEACH, CALIFORNIA, MODIFYING A CONDITIONAL USE
PERMIT TO ALLOW ON -SALE GENERAL ALCOHOL AND LIVE
ENTERTAINMENT, IN CONJUNCTION WITH AN EXISTING RESTAURANT
("CAFE BOOGALOO"), AND RESCINDING P.C. RESOLUTION 95-16, AT 1238
HERMOSA AVENUE, LEGALLY DESCRIBED LOT 5, BLOCK 34, FIRST
ADDITION TO HERMOSA BEACH, HERMOSA BEACH, CALIFORNIA
The Planning Commission of the City of Hermosa Beach does hereby resolve and order as
follows:
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 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. Said hearing was conducted
pursuant to Section 17.70.010 of the Hermosa Beach Municipal Code on December 5, 2012, at which
testimony and evidence, both written and oral, was presented to and considered by the Planning
Commission.
Section 2. Based on evidence received at the public hearing, the Planning Commission makes
the following findings in support of modifying the Conditional Use Permit, pursuant to Section 17.70.010
of the Hermosa Beach Municipal Code:
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 and the Penal Code, 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.
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 establishment), 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
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H.B.M.C. Section 17,04.030, which requires that a minimum of fifty (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 has 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 each month between January 2011 and October 2012.
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 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 Planning
Commission hereby modifies the Conditions of Approval of the Conditional Use Permit for on -sale
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 the conditions contained in 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 Commission on January 15, 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 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.
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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 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 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 premise 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 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.
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 sound proofing 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 ordinance in response
to any complaints.
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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
between premises with the goal of consuming alcoholic beverages at each stop along the
way.
15. The establishment shall display no more than eight (8) 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 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;
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 pasted 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.
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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 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 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, any: (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
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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 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.
30. This CUP 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 premise.
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.
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 no
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 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.
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Section 5. Pursuant to the Code of Civil Procedure Section 1094.6, any legal challenge to the
decision of the Planning Commission, after a formal appeal to the City Council, must be made within 90
days after the final decision by the City Council.
VOTE: AYES: Comms.Allen,Flaherty,Chmn.Pizer
NOES: Comms.Hoffinan,Perrotti
ABSTAIN: None
ABSENT: None
CERTIFICATION
I hereby certify the foregoing Resolution 12-22 is a true and complete record of the action taken by the
Planning Commission of the City of Hermosa Beach, California, at its regular meeting of December 5, 2012
and memorialized and modified on January 15, 2013.
Ron Pizer, Chairman
January 15, 2013
Date
Attachments:
Exhibit A: Floor and Seating Plan
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