HomeMy WebLinkAboutCC Reso 09-6654 (22 Pier, Dragon)
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RESOLUTION NO. 09-6654
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HERMOSA
BEACH, CALIFORNIA, TO SUSTAIN THE PLANNING COMMISSION
APPROVAL TO AMEND, RESTATE AND SUPERSEDE A
CONDITIONAL USE PERMIT FOR ON SALE GENERAL ALCOHOL
AND LIVE ENTERTAINMENT IN CONJUNCTION WITH AN EXISTING
RESTAURANT AT 22 PIER AVENUE, KNOWN AS “DRAGON”;
EXTENDING HOURS OF OPERATION FROM 12:00 MIDNIGHT
CLOSING DAILY TO 1:00 A.M. THE FOLLOWING MORNING
THURSDAY, FRIDAY, SATURDAY AND VARIOUS HOLIDAYS;
EXTENDING LIVE ENTERTAINMENT FROM 11:30 P.M. THURSDAY,
FRIDAY, SATURDAY AND VARIOUS PUBLIC HOLIDAYS TO 12:30
A.M. THE FOLLOWING MORNING; MODIFYING REQUIREMENTS
REGARDING FOOD SALES AND ENTRANCE FEES; AND REQUIRING
A SIX MONTH REVIEW, AND RESCINDING RESOLUTION NO. 09-
6647.
SECTION 1. Pursuant to Hermosa Beach Municipal Code Section 2.52.040, the City
Council took jurisdiction of the Planning Commission’s February 17, 2009 decision regarding 22
Pier Avenue. On March 24, 2009 and April 28, 2009, the City Council held a duly noticed public
hearing to consider the application for an amendment to an existing Conditional Use Permit (CUP
09-2) 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 factual findings:
1. On February 17, 2009, Planning Commission adopted PC Resolution 09-3 amending
the Conditional Use Permit (CUP 09-2) for 22 Pier Avenue, known as ‘Dragon.’
Resolution 09-3 amended and superseded the City Council’s Resolution 08-6601
adopted on June 24, 2008, which upheld Planning Commission’s Resolution 08-28
passed May 20, 2008, to modify Dragon’s Conditional Use Permit (CUP 03-24) after
finding that activities onsite were being exercised contrary to the conditions of
approval in a manner that adversely affected public welfare, including restrictions to
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(1) reduce hours of operation from 2:00 a.m. to midnight daily, (2) prohibit the
charging of admission to the premise, and (3) require the sale of alcohol with an
accompanying food order;
2. The applicant requested amendment of Resolution 08-6601 to remove the above three
conditions, and extend hours of operation to 2:00 a.m. the following morning on
Thursday to Saturday nights and various public holidays, and extend live
entertainment hours from 11:30 p.m. to 12:30 a.m. the following morning on Thursday
to Saturday nights and various public holidays;
3. The Hermosa Beach Chief of Police by memo dated January 24, 2009 notes a
significant drop in police calls to the premises since the City Council modified the
Conditional Use Permit on June 24, 2008, and does not object to a one-hour extension
of the premise’s closing time from 12:00 midnight to 1:00 a.m. provided additional
security personnel are employed;
4. The Hermosa Beach Fire Department has no recorded over-crowding incidents
relating to this premises since the City Council’s modification hearing, and the
California State Department of Alcohol Beverage Control records no alcohol license
violations since June 24, 2008;
5. Analysis of the alcohol point-of-sale receipts indicates that alcohol sales have
comprised less than fifty percent of gross receipts since June 24, 2008, in accordance
with Condition 1.3 of City Council Resolution 08-6601; provided that said receipts
were not audited and certified by a Certified Public Accountant and timely submitted
to the Police Chief monthly for the first four months and quarterly thereafter as
required by said Condition 1.3; and
6. The site is zoned C-2 (Restricted Commercial) allowing on-sale alcohol use and live
entertainment in conjunction with an existing restaurant with approval of a
Conditional Use Permit. The applicant has altered the interior floor layout to replace
the dance floor area with a dining area, which includes tables and seating; this revised
floor plan has been approved by the City’s Building and Fire Departments in
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accordance with the California Building Code, fire safety requirements and
Conditional Use Permit 03-24.
Based on the foregoing, the City Council makes the following findings:
1. The City Council finds that during the six month period from July 2008 to January
2009, the applicant has improved business operations and operated in a manner
consistent with the conditions of approval set forth in Resolution 08-6601, with the
exception that receipts have not been audited and certified by a Certified Public
Accountant and timely submitted in accordance with Condition 1.3. The improved
business operations have resulted in a significant drop in police calls, no overcrowding
violations, creation of a permanent seating area for diners and an increase in the
percentage of food sales at the establishment. On the whole, for six months, the
Conditional Use Permit has been exercised in a manner that does not adversely affect
the public welfare and safety on and around Pier Plaza; however, business enterprises
must take responsibility for fully complying with all Conditions of Approval.
2. Given the significance of the prior violations that resulted in the City's June 24, 2008
permit modification set forth in City Council Resolution 08-661, the limited six-month
period of time that has elapsed since the modification, noncompliance with said
Condition 1.3, and the continuing potential for disturbance to the public welfare and of
surrounding uses residential and commercial uses, the City Council finds the
applicant’s request to fully restore the closing hours from 12:00 midnight to 2:00 a.m.
Thursday to Sunday and various public holidays to be inappropriate. Rather, the City
Council finds pursuant to Sections 17.40.020 and 17.40.080 of the Zoning Ordinance,
an incremental extension of closing hours to 1:00 a.m. the following morning of
Thursday to Saturday nights and various public holidays to be appropriate and
prudent, provided all alcohol consumption must cease at the closing time and
additional security personnel shall be present onsite; hours of live entertainment shall
also be extended to one-half hour prior to the closing time; and staff are permitted to
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remain onsite after the closing time for the purposes of cleaning, site maintenance and
securing the premises only.
3. The City Council finds a ‘zero tolerance’ approach is appropriate given the
significance of the applicant’s prior violations and will take swift action to enforce the
conditions of this Conditional Use Permit should violations occur, and/or the City
Manager determines a significant increase in Police and/or Fire Department activity at
the premises has occurred.
4. The City Council finds it is inappropriate for the applicant to have the ability to charge
an admission charge to patrons because the intended primary use of the premises is a
restaurant and live entertainment is purely incidental.
5. The wording of Condition 1.2 (Resolution 08-6601) “alcohol…shall be served with an
accompanying food order and in a manner consistent with its license issued by the
State Department of Alcoholic Beverage Control” is unduly restrictive. The Council
finds it appropriate to remove the wording “shall be served with an accompanying
food order” from Condition 1.2. The wording of Condition 1.3 (Resolution 08-6601)
requiring that a certified public accountant audit and certify the establishment’s gross
receipts on a monthly basis imposes an undue financial burden on the applicant.
However, given past noncompliance with Condition 1.3, the Council finds that
establishments must take responsibility for compliance with required conditions and
further finds it appropriate to require receipts to audited and certified by a certified
public accountant on a monthly basis for six months following approval of this
conditional use permit amendment, and thereafter submittal of (unaudited) summaries
quarterly shall be required. Notwithstanding, this action has no effect on any
conditions of the applicant’s State Alcoholic Beverage license.
6. The Council finds it is appropriate for clarity to further amend Condition 1.3 to
incorporate the provisions of the definition of 'restaurant' with on-sale general alcohol,
that a minimum of fifty (50) percent of the total gross sales, computed monthly, shall
result from the sale of prepared food.
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SECTION 3. The proposed Conditional Use Permit amendment is Categorically Exempt
from the California Environmental Quality Act per Guidelines, Section 15332, Infill Development
Projects, as the project involves no physical change to any structure or site, the number of patrons
and operation will not significantly change, and the project is located in an urbanized area on an
urban lot available to all necessary public services, access and facilities.
SECTION 4. Based on the foregoing, the City Council hereby approves Conditional Use
Permit amendment (CUP 09-2) for on-sale general alcohol and live entertainment in
conjunction with a restaurant subject to the following Conditions of Approval, which replaces and
supersedes Planning Commission Resolution 09-3 and City Council Resolution 08-6601. This
Conditional Use Permit amendment (CUP 09-2) governs the entire restaurant establishment,
which includes the interior dining and bar area, outdoor dining patio and associated parking
arrangements
CONDITIONS:
1. Permitted use: dining. alcohol, entertainment
1.1 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; food
service from the menu shall be available during all hours that the establishment is
open for business.
1.2 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).
1.3 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 audited and certified by a
Certified Public Accountant to the Police Chief monthly for the first six months after
the approval of this Conditional Use Permit as amended, and thereafter shall submit
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summaries (certification not required) 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 ABC to
investigate the subject business’s compliance with the alcohol license conditions.
1.4 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 for the purpose of dining. Dancing
by both employees and patrons is strictly prohibited and signs shall be maintained in
the restaurant notifying of this restriction.
1.5 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. Admission to
the establishment shall not be charged at any time.
1.6 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.
1.7 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.
1.8 There shall be no reduced price alcoholic beverage promotion that would reduce the
price of a single beverage below $3.00. This amount may be modified in the future
to reflect changes in economic conditions.
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2. Hours of operation
2.1 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 Sunday through
Wednesday, and from 7:00 a.m. to 1:00 a.m. the following morning on Thursday,
Friday, and Saturday nights, Cinco de Mayo, St. Patrick's Day, New Year’s Eve,
Halloween, Thanksgiving Eve, Christmas Eve, and all State and Federal holidays.
All alcohol sales shall cease and all customers shall vacate the premises no later than
time of close and the entrance doors shall be locked.
2.2 Hours of live entertainment shall be limited to 7:00 p.m. to 12:30 a.m. the following
morning on Thursday, Friday, Saturday nights, Cinco de Mayo, St. Patrick's Day,
New Year’s Eve, Halloween, Thanksgiving Eve, Christmas Eve, and all State and
Federal holidays.
2.3 Staff is permitted to remain onsite after the business is closed to the public for the
purposes of cleaning, site maintenance and securing the premise only.
2.4 To allow for an adequate monitoring period, no further extension of operating hours
shall be permitted for at least six months from the date of this Resolution.
3. Floor plan
3.1 The furniture and interior improvement within the business operation and outside
patio shall conform to the interior Floor Plan dated March 25, 2008 and the Outdoor
Dining Patio Plan dated November 30, 2007; both plans are attached as Exhibit “A”
and date stamped by the Planning Division February 11, 2009. Other than trivial or
insignificant 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 Planning Commission by
way of modification of the Conditional Use Permit.
3.2 The establishment shall have no more than eight (8) televisions.
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4. Occupant Load; overcrowding
4.1 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 the Department of Community Development and Fire
Department (main restaurant) and Public Works Department (outdoor patio within
Encroachment Permit area). 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-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 as 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 09-02;
b. Conditions of the State Alcoholic Beverage Control license;
c. Significant increase in police calls and/or public disturbances; 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 shall immediately refer the matter to City
Council to consider an amendment to this CUP requiring a 12:00 am midnight daily
closing time. The permittee shall be notified of the suspension in writing. The
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actual date of the suspension and whether a violation has occurred shall be as
determined by the City Manager.
4.2 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.
5. Nuisance avoidance, patron behavior and noise
5.1 The business shall not operate in a manner that adversely effects or interferes with
the comfortable enjoyment of neighboring residential and commercial property.
5.2 To minimize public disturbances, four (4) uniformed security guards shall be
stationed onsite at all times between 10:00 p.m. to 1:15 a.m. the following morning
on Thursday, Friday, Saturday, Cinco de Mayo, St. Patrick's Day, New Year’s Eve,
Halloween, Thanksgiving Eve, Christmas Eve, and State and Federal holidays. The
Police Chief may, in writing, following review of the level of public disturbance
associated with the subject site, reduce or modify the security guard requirements at
the premise.
5.3 The business owner shall install and/or maintain security lighting on the exterior of
the building subject to approval by the Police Chief and Department of Community
Development.
5.4 The business shall employ adequate staffing and management/ supervision to
prevent serving underage persons, over-serving alcohol, and loitering, unruliness,
and boisterous behavior by patrons both inside and outside on the business
premises, or in the immediate area. In particular, the permittee shall implement and
maintain the policies entitled “Regarding the Dragon’s prohibition on dancing and
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the Dragon’s responsible sale and service of alcoholic beverages” as submitted to the
Planning Commission on May 20, 2008 and attached as Exhibit “B,” including the
requirement for a manager to remain on the premises daily from 7:00 p.m. until at
least fifteen (15) minutes after the business closes, written confirmation that all staff
serving alcoholic beverages or monitoring patrons have completed the Licensee
Education on Alcohol and Drugs Training (LEAD) or an equivalent staff training
program offered by the California Department of Alcoholic Beverage Control.
5.5 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 so notify the
Director of Community Development of these actions, who shall forthwith schedule
a public hearing before the Planning Commission to consider modification or
revocation of this Conditional Use Permit.
5.6 The business shall comply in all other respects with Municipal Code Chapter 8.24
(Noise Control) and noise from the premises shall not constitute a public nuisance.
5.7 The permittee shall implement and maintain the noise control recommendation in the
acoustical study prepared by Davy and Associates dated June 9, 2004 and attached
hereto as Exhibit “C”, to the satisfaction of the City, as well as features previously
installed or implemented measures including: double paned windows, solid doors,
self closing hardware on doors, and air conditioning system of adequate capacity. In
addition, the permittee shall continue to have all doors and windows in a closed
position during performance of any live entertainment and the business management
shall be responsible for volume levels of all music or live entertainment.
5.8 No live entertainment, dancing, amplified music, audio, television or speakers of any
kind shall be permitted in the outside seating areas that are maintained pursuant to an
encroachment permit. In no event shall continuous, sustained or repeated noise from
the business be audible at the property line of any residential premises at any time.
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5.9 The permittee shall post and enforce a dress code that provides: “DRESS CODE:
Shoes and shirts required, no gang clothing or other articles/jewelry indicative of
gang affiliation is permitted, no beanies, no bandanas ands no offensive message on
clothing is permitted. We reserve the right to refuse service to anyone.”
5.10 The exterior of the premises shall be maintained in a neat and clean manner, and
maintained free of graffiti at all times.
6. Miscellaneous conditions
6.1 This Conditional Use Permit shall supersede and replace all Conditional Use Permits
previously approved for the property and City Council Resolution 08-6601 is hereby
rescinded and is of no further force and effect.
6.2 The restaurant and on-sale alcohol and live entertainment shall be subject to review
by the Planning Commission six months after the effective date of this Resolution
and annually thereafter to verify conformance with the Conditions of Approval.
6.3 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 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.
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
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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 Amendment shall be recorded, and proof of recordation shall
be submitted to the Community Development Department prior to the issuance of a building
permit or change of operation.
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 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
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 detrimental
effects on the neighborhood resulting from the subject use.
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