These provisions shall be known as the deemed approved alcoholic beverage sale regulations. The general purposes of these regulations are to protect and promote the public health, safety, comfort, convenience, prosperity, and general welfare by requiring that alcoholic beverage sales activities that were legal nonconforming activities, with respect to Section 20-42.034 of the Zoning Code, immediately before the effective date of these regulations comply with the deemed approved performance standards in Section 10-06.070 of this chapter and to achieve the following objectives:
(A) 
To protect adjacent neighborhoods from the harmful effects attributable to the sale of alcoholic beverages and to minimize the adverse impacts of nonconforming and incompatible uses;
(B) 
To provide opportunities for businesses selling alcoholic beverages to operate in a mutually beneficial relationship with each other and with other commercial and civic services;
(C) 
To provide mechanisms to address problems often associated with the public consumption of alcoholic beverages, such as litter, loitering, graffiti, unruly behavior and escalated noise levels;
(D) 
To ensure that businesses selling alcoholic beverages are not the source of undue public nuisances in the community;
(E) 
To ensure that sites where alcoholic beverages are sold are properly maintained so that negative impacts generated by these activities are not harmful to the surrounding environment in any way;
(F) 
To monitor deemed approved uses to ensure that they do not substantially change their mode or character of operation.
(Ord. 3767 § 1, 2006)
(A) 
To Which Property Applicable. These regulations shall apply, to the extent permissible under other laws, to all legal nonconforming alcoholic beverage sale activities within the City.
(B) 
Duplicated Regulation. Whenever any provision of these regulations or any other provision of law, whether set forth in this code, or in any other law, ordinance, or resolution of any kind, imposes overlapping or contradictory regulations, or contain restrictions covering the same subject matter, the provision that is more restrictive or imposes higher standards shall control, except as otherwise expressly provided in these regulations.
(Ord. 3767 § 1, 2006)
All alcoholic beverage sales activities, that were legal nonconforming activities, with respect to Section 20-42.034 of the Zoning Code, immediately before the effective date of these regulations shall automatically become deemed approved activities as of the effective date of the deemed approved alcoholic beverage sale regulations and shall no longer be considered legal nonconforming activities. Each deemed approved activity shall retain its deemed approved status as long as it complies with the performance standards in Section 10-06.070. However, any change in ABC license type including, but not limited to, a change from a type 20 to a type 21 license, or a substantial physical change or character of premises as defined in Title 4 of the California Code of Regulations Section 64.2(b), shall terminate the deemed approved status of the business activity and shall require a conditional use permit to continue operation. For purposes of this section, the approval of a conditional use permit shall not be automatic upon termination of the activity's deemed approved status.
(Ord. 3767 § 1, 2006)
The City or its designated enforcement authority shall notify the owner of each deemed approved activity, and also the property owner if not the same, of the activity's deemed approved status. The notice shall be sent by regular mail and shall include a copy of the performance standards in Section 10-06.070 of this chapter with the requirement that they be posted in a conspicuous and unobstructed place visible from the entrance of the establishment for public review. This notice shall also provide that the activity is required to comply with all performance standards; and that the activity is required to comply with all other aspects of these regulations.
(Ord. 3767 § 1, 2006)
Whenever an alcoholic beverage sales activity discontinues active operation for more than 180 consecutive days, or ceases to be licensed by the State Department of Alcoholic Beverage Control (ABC), the deemed approved status shall be rescinded. Any subsequent alcoholic beverage sales commercial activity may be resumed only upon the granting of a conditional use permit pursuant to the conditional use permit procedures in Sections 20-42.034 and 20-52.050 of the Zoning Code. However, this requirement shall not apply to a closure for restoration of premises rendered totally or partially inaccessible by an extraordinary natural event that cannot be reasonably foreseen or prevented (such as a flood or earthquake) or a toxic accident, provided that the restoration does not increase the square footage of the business used for the sale of alcoholic beverages. Nor shall this requirement apply to a closure for purposes of repair, if that repair does not change the nature of the premises and does not increase the square footage of the business used for the sale of alcoholic beverages.
If another use has been substituted before the 180 consecutive days have lapsed, then the original deemed approved activity shall not be resumed.
Once it is determined by the City that there has been a discontinuance of active operation for 180 consecutive days or a cessation of ABC licensing, the matter shall be reviewed in a public hearing by the Administrative Hearing Officer as provided in Section 10-06.080(B). Notification of the public hearing shall be in accordance with Section 10-06.080(D).
(Ord. 3767 § 1, 2006)
The purpose of these definitions is to promote consistency and precision in the interpretation of these regulations. The meaning and construction of these words and phrases shall apply throughout, except where the context clearly indicates a different meaning or construction.
As used in this chapter:
"Alcoholic beverage"
means alcohol, spirits, liquor, wine, beer, and every liquid or solid containing alcohol, spirits, wine, or beer, that contains one-half of one percent or more of alcohol by volume and that is fit for beverage purposes either alone or when diluted, mixed, or combined with other substances and sales that requires a State Department of Alcoholic Beverage Control license.
"Alcoholic beverage sales"
means the retail sale of alcoholic beverages for onsite or offsite consumption, including liquor stores, convenience food stores, markets, taverns, bars, and restaurants with bars. This does not include restaurants, which serve alcoholic beverages as part of a meal.
"Condition of approval"
means a requirement that must be carried out by the activity in order to retain its deemed approved status.
"Deemed approved activity"
means any legal nonconforming alcoholic beverage sales with respect to Section 20-42.034 of the Zoning Code, as defined in this section, in existence immediately before the effective date of these regulations shall be considered a deemed approved activity as long as it complies with the deemed approved performance standards set forth in Section 10-06.070, and shall no longer be considered a legal nonconforming activity.
"Deemed approved status"
means the permitted use of the land for a legal nonconforming purpose – the deemed approved alcoholic beverage sales activity.
"Illegal activity"
means an activity that has been finally determined to be in noncompliance with the deemed approved performance standards in Section 10-06.070 of this chapter. Such an activity shall lose its deemed approved status and shall no longer be considered a deemed approved activity.
"Legal nonconforming alcoholic beverage sales activity" or "legal nonconforming activity"
means an alcoholic beverage sales activity that was a nonconforming use pursuant to Section 20-42.034 of the Zoning Code and for which a valid State of California Alcoholic Beverage Control license had been issued and used in the exercise of the rights and privileges conferred by the license, at a time immediately before the effective date of these regulations. Such an activity shall be considered a deemed approved activity with respect to alcohol sales, and shall no longer be considered a legal nonconforming activity with respect to alcohol sales, except that it shall be subject to those zoning regulations relating to nonconforming uses as specified in Chapter 20-61, as of the effective date of the deemed approved alcoholic beverage sale regulations.
"License"
means a license authorized to be issued to a person by the State of California Department of Alco-holic Beverage Control to sell alcohol pursuant to Division 9 of the Business and Professions Code.
"Licensee"
means any person holding a license issued by the State of California Department of Alcoholic Beverage Control to sell alcoholic beverages. For purposes of this statute the licensee is the business owner.
"Officer"
means Administrative Hearing Officer, as provided for in Section 10-06.080(A).
"Performance standards"
means regulations prescribed in the deemed approved performance standards in Section 10-06.070 of this chapter.
"Premises"
means the actual space within a building devoted to alcoholic beverage sales.
"Premises to premises transfer"
means an ABC license that is being transferred from one business location to another business location for which approval is required by the local ABC District Office and under certain circumstances also requires approval from the local municipality.
(Ord. 3767 § 1, 2006)
The provisions of this section shall be known as the deemed approved performance standards. The purpose of these standards is to control dangerous or objectionable environmental effects of alcoholic beverage sales activities. These standards shall apply to all alcoholic beverage sales activities that were legal nonconforming activities with regard to the permit requirements of Section 20-42.034 of the Zoning Code immediately before the effective date of the deemed approved alcoholic beverage sale regulations.
An activity shall retain its deemed approved status only if it conforms with all of the following deemed approved performance standards:
(A) 
That it does not result in adverse effects to the health, peace or safety of persons residing or working in the surrounding area;
(B) 
That it does not result in jeopardizing or endangering the public health or safety of persons residing or working in the surrounding area;
(C) 
That it does not result in repeated nuisance activities within the premises or in close proximity to the premises, including but not limited to disturbance of the peace, illegal drug activity, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, excessive littering, loitering, graffiti, illegal parking, excessive loud noises, especially in the late night or early morning hours, traffic violations, curfew violations, lewd conduct, or police detentions and arrests;
(D) 
That it complies with all provisions of all local, state or federal laws, regulations or orders, including those of the ABC, as well as any condition imposed on any permits issued pursuant to applicable laws, regulations or orders. This includes compliance with annual City business taxes and alcohol sales permit fees.
(E) 
That its upkeep and operating characteristics are compatible with, and will not adversely affect the livability or appropriate development of, abutting properties and the surrounding neighborhood.
(F) 
A copy of these performance standards, as well as any ABC or City operating conditions, shall be posted in a conspicuous and unobstructed place visible from the entrance of the establishment for public review.
(G) 
To insure the safety of the business owner, patrons and law enforcement officers, no more than 15 percent of the square footage of windows and 10 percent of clear doors of off-sale premises shall be obstructed by signs or advertising. All signs and advertising shall be placed and maintained in a manner that ensures that law enforcement personnel have a clear and unobstructed view of the interior of the premises. This includes the area in which the cash registers are maintained, from the exterior public sidewalk or entrance to the premises.
(Ord. 3767 § 1, 2006)
(A) 
Administrative Hearing Officer. There is created an alcoholic beverage sales Administrative Hearing Officer. The Hearing Officer shall conduct public hearings and make determinations whether violations of deemed approved performance standards, conditions of approval, undue negative impacts or public nuisance activity are occurring. This section is not intended to restrict the powers and duties otherwise pertaining to other City officers or bodies, in the field of monitoring and ensuring the harmony of alcoholic beverage sale activities in the City. These parties shall have the powers and duties assigned to them by the City Code, by the zoning regulations, by other codes and ordinances, by the City Charter, or by valid administrative authority.
The City Manager shall appoint one or more individuals as the Hearing Officer(s) for an administrative hearing held under this chapter. The employment, performance evaluation, compensation and benefits of the Hearing Officer shall not be directly or indirectly conditioned upon the amount of penalties or costs awarded by the officer. The Hearing Officer shall not be a City employee or City official, whether elected or appointed.
(B) 
Procedure for Consideration of Violations of Performance Standards. Upon receiving a complaint from the public, Police Department, or any other interested party that a deemed approved activity is in violation of the performance standards in Section 10-06.070, and once it is determined by the City that a violation appears to be occurring, then the deemed approved status of the deemed approved activity in question shall be reviewed by the Administrative Hearing Officer at a public hearing. Notification of the public hearing shall be in accordance with subsection (D) of this section.
The purpose of the public hearing is to receive testimony and evidence on whether the operating methods of the deemed approved activity are causing undue negative impacts in the surrounding area and/or are resulting in a public nuisance. At this hearing, the Hearing Officer shall determine whether: (1) the deemed approved activity conforms to the deemed approved performance standards set forth in Section 10-06.070 and to any other applicable criteria, and may continue the deemed approved status for the activity; or (2) to require changes or impose reasonable conditions of approval that in the judgment of the officer are necessary to ensure conformity with the performance standards or applicable criteria, and these conditions shall be based on the evidence presented; or (3) to revoke the activity's deemed approved status. The decision of the officer shall be based upon information compiled by staff and evidence from the business owner and all other interested parties.
New conditions of approval shall be made a part of deemed approved status, and the deemed approved activity shall be required to comply with these conditions. The determination of the officer shall become final ten calendar days after the date of decision unless appealed to the City Planning Commission in accordance with subsection (E) of this section.
In the event there is a negotiated settlement for conditions between the City, the business owner or the property owner, the settlement shall constitute the decision of the Hearing Officer for the purpose of a first hearing in the matter. Any subsequent violations of the conditions or operating standards may result in a public hearing to revoke the deemed approved status of the business.
If in the judgment of the Hearing Officer, the business owner is unable to abate the nuisance, and the nuisance activity is shown to be a significant threat to the public health and safety of the surrounding neighborhood, the officer may revoke the deemed approved status of the business. Any continued operation of the business shall require a conditional use permit approved by the Planning Commission.
(C) 
Procedure for Consideration of Violations of Conditions of Approval. In the event of a violation of any of these regulations, or upon evidence that there has been a failure to comply with any prescribed condition of approval, the officer may hold a public hearing. Notification of the public hearing shall be in accordance with subsection (D) of this section.
The purpose of this hearing is to receive testimony and evidence and determine whether violations of any conditions of approval attached to the site have occurred. Upon a showing of a violation or failure to comply with any condition, the Hearing Officer shall revoke the deemed approved status of the deemed approved activity. Any continued operation of the business shall require a conditional use permit approved by the Planning Commission. The determination of the officer shall become final 10 calendar days after the date of decision unless appealed to the Planning Commission.
(D) 
Notification of Public Hearing. Notice of the public hearing shall be given in accordance with the provisions of Section 20-66.020 of the Zoning Code.
(E) 
Appeal to Planning Commission. Within 10 calendar days after imposition of conditions of approval on a deemed approved activity or the revocation of deemed approved status, an appeal may be taken to the City Planning Commission by the deemed approved activity owner or any other interested party. In the event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal. The appeal shall be made on a form prescribed by the City. The appeal shall state specifically why it is claimed there was an error or abuse of discretion by the officer or why the decision is not supported by the evidence in the record. The appeal shall be accompanied by sufficient information as may be required to facilitate review. Upon receipt of the appeal and the required appeal fee in accordance with subsection (F) of this section, the Secretary to the Planning Commission shall set the date for its consideration, and shall, not less than 10 days before the hearing, give written notice to: the applicant; the appellant in those cases where the applicant is not the appellant; the adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as appropriate, of the date and place of the hearing on the appeal.
In considering the appeal, the Planning Commission shall determine, de novo, whether the established use conforms to the applicable deemed approved performance standards and/or conditions of approval, and may continue or revoke a deemed approved status; or require such changes in the existing use or impose such reasonable conditions of approval as are, in its judgment, necessary to ensure conformity with the performance standards.
The Planning Commission shall decide the appeal within 30 days after the close of the public hearing. If the Planning Commission does not decide the case within 30 days after the close of the public hearing, the decision of the Hearing Officer shall be final. The decision of the Planning Commission on the appeal shall be final notwithstanding Section 1-20.010 of this Code.
(F) 
Fees. Administrative and enforcement costs, including any and all costs incurred by the City in connection with the matter before the Hearing Officer, shall be in accordance with the Department of Community Development fee schedule and current code enforcement schedule of fees. Fees for notice requirements and public hearings shall also be in accordance with these schedules.
(G) 
Illegal Activity. An activity that has been finally determined to be in noncompliance with the deemed approved performance standards shall lose its deemed approved status and shall no longer be considered a legal use of the building, structure, site, or portion thereof, and shall cease operation immediately.
(Ord. 3767 § 1, 2006)
All officials, departments, and employees of the City vested with the authority to issue permits, certificates, or licenses shall adhere to, and require conformance with, these regulations.
(Ord. 3767 § 1, 2006)
(A) 
Violations. Any violation of any provision of this chapter shall be punished in accordance with City Code Section 1-28.010.
(B) 
Separate Offenses for Each Day. Any violator shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of these regulations is committed, continued, permitted, or caused by such violator and shall be punishable accordingly.
(C) 
Any Violation Is a Public Nuisance. In addition to the penalties provided in this section, any use or condition caused or permitted to exist in violation of any of the provisions of this chapter or the City Zoning Code shall be and is declared to be a public nuisance and may be summarily abated as such by the City.
(D) 
Injunction as Additional Remedy. Any violation of any provision of these regulations shall be and is declared to be contrary to the public interest and shall, at the discretion of the City, create a cause of action for injunctive relief.
(E) 
Liability for Expenses. In addition to the punishment provided by law, a violator is liable for such costs, expenses, and disbursements paid or incurred by the City or any of its contractors in correction, abatement, and prosecution of the violation. Reinspection fees to ascertain compliance with previously noticed or cited violations shall be charged against the owner of the deemed approved activity. The inspection official shall give the owner or other responsible party of such affected premises a written notice showing the itemized cost of such chargeable service and requesting payment thereof. Should the bill not be paid in the required time, the charges shall be placed as a lien against the property.
(Ord. 3767 § 1, 2006)
The City shall designate the appropriate personnel to enforce the provisions of these regulations.
(Ord. 3767 § 1, 2006)
The officials responsible for enforcement of the City Code, or their duly authorized representatives, may enter on any site or into any structure for the purpose of investigation, provided they do so in a reasonable manner, whenever they have cause to suspect a violation of any provision of these regulations, or whenever necessary to the investigation of violations to the deemed approved performance standards or conditions of approval prescribed in these regulations. If an owner, occupant or agent refuses permission to enter, inspect or investigate, the officials or their representatives, may seek a warrant under the provisions of California Code of Civil Procedure Section 1822.50 et seq.
(Ord. 3767 § 1, 2006)
Any person or entity aggrieved by a violation of any provision of this chapter, where the owner of the deemed approved activity has failed or refused to comply with a condition of approval for a period of 40 days, after the Hearing Officer's decision becomes final, shall have the right to file an action for injunctive relief and damages against the owner. Any person or entity that prevails or is successful in the action or proceeding shall be entitled to, in addition to any other relief, to recover all reasonable costs, expenses and attorney's fees incurred.
(Ord. 3767 § 1, 2006)