The city council finds and declares:
A.
Numerous
establishments including bars and restaurants in San Bruno sell alcoholic
beverages for on-premises consumption;
B.
Such
establishments have long been the source of significant nuisance activities
including assaults, threats, disturbances, narcotic violations, public
urination, fights, and Alcoholic Beverage Control (ABC) violations;
C.
As a
result, the city has been compelled to expend undue public resources
responding to service calls relating to such establishments;
D.
That
such activities injure the public, health, safety and welfare; and
E.
That
such activities are the source of public nuisances in the community.
(Ord. 1686 § 1, 2003; Ord. 1881 § 3, 2020)
The general purpose of this chapter is to establish a standard
of conduct that legal nonconforming or deemed approved establishments
shall meet in order to protect and promote the public health, safety,
comfort, convenience, prosperity, and general welfare and in order
to achieve the following objectives:
A.
To define
as a public nuisance and violations noncompliance with performance
standards as established herein;
B.
To develop
regulations that promote properly maintained establishments engaging
in alcoholic beverage commercial sales so that negative impacts generated
by these establishments and/or activities are not harmful to the surrounding
community and/or environment in any way;
C.
To facilitate
the establishment of enforcement procedures and nuisance abatement
procedures for the correction or abatement nuisances by responsible
persons.
(Ord. 1686 § 1, 2003; Ord. 1881 § 3, 2020)
A.
To Which
Property Applicable. This chapter shall apply, to the extent permissible
under other laws, to all legal nonconforming alcoholic beverage sale
commercial activities within the city of San Bruno.
B.
Duplicated
Regulation. Whenever any provision of this chapter and 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 any of the same subject matter, that
provision which is more restrictive or imposes higher standards shall
control, except as otherwise expressly provided herein.
C.
Relationship
to the zoning regulations. This chapter relates to, including, but
not limited to, the following provisions of the San Bruno Municipal
Code: Sections 12.80.193 (Drinking place), 12.80.408 (Restaurant with
alcoholic beverage sales), and 12.84.210 (Drinking places, and land
uses with alcoholic beverage sales).
(Ord. 1686 § 1, 2003; Ord. 1881 § 3, 2020)
As used in this chapter:
means a requirement that must be carried out by the activity
in order to retain its deemed approved status.
means alcohol, spirits, liquor, wine, beer, and every liquid
or solid containing alcohol, spirits, wine, or beer, which contains
one-half of one percent or more of alcohol by volume and which is
fit for beverage purposes either alone or when diluted, mixed, or
combined with other substances, and sales of which requires a State
Department of Alcoholic Beverage Control license.
means the retail sale, for on-premises consumption, of liquor,
beer, wine, or other alcoholic beverages, excluding stores and liquor
stores, private clubs or lodges, and special public or private events.
All alcoholic beverage sales commercial activities in existence
immediately prior to December 17, 2003, the effective date of the
ordinance codified in this chapter, were deemed approved activities
at that time and shall maintain a deemed approved status provided
there is compliance with the performance standards contained in this
chapter.
means the status conferred upon a deemed approved activity.
Deemed approved status replaces legal nonconforming status.
means an activity that has been determined to be in noncompliance
with the deemed approved performance standards of this chapter. Such
an activity shall lose its deemed approved status and shall no longer
be considered a deemed approved activity.
means an alcoholic beverage sales commercial activity which was a nonconforming use under the San Bruno Municipal 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 prior to the effective date of the deemed approved alcoholic beverage sale regulations. Such an activity shall be considered a deemed approved activity, and shall no longer be considered a legal nonconforming activity, except such activity shall be subject to those zoning regulations relating to nonconforming uses as specified in the San Bruno Municipal Codes, including, but not limited to, Chapter 12.92.
means the standards of conduct regulations prescribed in
the performance standards in this chapter.
means the actual space within a building devoted to alcoholic
beverage sales.
means any person, whether as a manager, alcohol license owner,
an owner or proprietor of an establishment where there is alcoholic
beverage sales activity occurring, or otherwise, that allows, causes,
creates, maintains, or permits noncompliance with the performance
standards established by this chapter, a public nuisance, or any violation
of the San Bruno Municipal Code or state law, to exist or continue,
by any act or the omission of any act or duty.
(Ord. 1686 § 1, 2003; Ord. 1881 § 3, 2020)
A deemed approved activity shall retain its deemed approved
status only if it conforms to all of the following performance standards:
A.
That
it does not result in jeopardizing or endangering or resulting 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 repeated nuisance activities or nuisance conditions,
including, but not limited to, police interventions within the premises
or in close proximity of the premises, including but not limited to
criminal activities, disturbance of the peace, illegal drug activity,
public drunkenness, drinking in public, harassment of passersby, illegal
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;
C.
That
it does not result in violations to any applicable provision of any
other city, state, or federal regulation, ordinance or statute;
D.
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.
(Ord. 1686 § 1, 2003; Ord. 1881 § 3, 2020)
All alcoholic beverage sales commercial activities in existence
immediately prior to December 17, 2003, the effective date of the
ordinance codified in this chapter, were deemed approved activities
at that time and shall maintain a deemed approved status provided
there is compliance with the performance standards contained in this
chapter.
(Ord. 1686 § 1, 2003; Ord. 1881 § 3, 2020)
A.
Notification.
The city manager or designee 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.
B.
Post
Standards. The notice shall include a copy of the performance standards
of this chapter with the requirement that these be posted in a conspicuous
and unobstructed place visible from the entrance of the establishment
for public review, notification that the activity is required to comply
with all these same performance standards, that a review fee is required
in an amount provided for in the master fee schedule, and that the
activity is required to comply with all other aspects of the deemed
approved alcoholic beverage sale regulations.
C.
Notice
Method. Such notice shall be sent via certified mail. Should the notice
be returned, then the notice shall be sent via regular first class
mail.
(Ord. 1686 § 1, 2003; Ord. 1881 § 3, 2020)
The provisions of Sections 5.22.081 through 5.22.130 outline the process by which deemed approved activities are reviewed.
(Ord. 1686 § 1, 2003; Ord. 1881 § 3, 2020)
The city manager or designee shall receive complaints from the
public, the police department or any other interested party regarding
noncompliance with the performance standards articulated in this chapter.
A complaint must include:
A.
Specific
identification of the subject establishment by address and name;
B.
A statement
of the specific performance standards that are not being complied
with and all grounds and material facts in support;
C.
A statement
of the complainant's interest or relationship to the property;
D.
A verification
of at least one person as to the truth of material facts cited in
the complaint.
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The city manager or designee shall provide a responsible person
with a copy of the complaint and request that the secretary to the
planning commission schedule a hearing.
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(Ord. 1686 § 1, 2003; Ord. 1881 § 3, 2020)
A.
Hearing
Date. As soon as practicable after receiving a complaint from the
city manager, the secretary to the planning commission shall set a
date for the planning commission to hear the matter, which date shall
be not less than fifteen calendar days nor more than sixty calendar
days from the date the city manager's request was received.
B.
Notice—Service.
The city clerk shall give each complainant and responsible party written
notice of the date, time and place of the hearing at least ten calendar
days prior to its occurrence. Service of the notice of hearing shall
be made by first class mail, postage prepaid, to the complainant and
responsible party. The failure of a person to receive a properly addressed
notice of hearing shall not invalidate any action or proceeding by
the city pursuant to this chapter.
C.
Conduct
of Hearing. The decision of the planning commission shall be based
on information compiled and presented by staff, testimony from the
responsible party, and all other interested parties and members of
the public who wish to provide information.
The purpose of the hearing is to receive testimony as to whether
the deemed approved activity conforms to the performance standards
set forth in this chapter, to consider any other relevant information,
and determine whether deemed approved status should be revoked or
whether the planning commission should impose abatement conditions
as may be necessary to ensure conformity to said standards.
The planning commission may continue the hearing on its own
motion.
Formal rules of evidence do not apply. However, the planning
commission's findings shall be made upon a preponderance of evidence
and determinations shall be stated in a duly adopted resolution.
(Ord. 1686 § 1, 2003; Ord. 1881 § 3, 2020)
A.
Decision.
Within a reasonable time, not to exceed thirty calendar days following
conclusion of the hearing, the planning commission shall render its
decision and make any one or more of the following determinations:
1.
Continue
the deemed approved as is;
2.
Require
such changes or impose reasonable abatement conditions as may be reasonably
necessary to ensure conformity to said standards; or
3.
In
the event of a violation of the performance standard set forth herein
or upon evidence that there has been a failure to comply with any
prescribed abatement condition, the planning commission may revoke
the approved activity's approved status.
B.
Notice.
A copy of the planning commission's decision shall be served on the
respondent by certified mail and by first class mail. Service of this
decision is deemed complete at time of mailing. The failure of a person
to receive a properly addressed decision shall not invalidate any
action or proceeding by the city pursuant to this article.
The decision shall contain a notice of the following:
1.
The
planning commission's decision may be appealed to the city council.
2.
City
clerk must receive appeals within ten calendar days from date of service
of the planning commission's decision.
3.
A
fee shall accompany each appeal in an amount as established by resolution
of the city council.
4.
Failure
to file a timely appeal and/or to tender the required fee shall constitute
a person's waiver of the right to an appeal hearing before the city
council.
|
If the city clerk does not receive a timely appeal and the required
fee, the decision of the planning commission shall be deemed final
and non-appealable.
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(Ord. 1686 § 1, 2003; Ord. 1881 § 3, 2020)
A.
Any responsible person may appeal a planning commission's decision in writing to the city council. The appeal period shall be ten calendar days from date of service of the planning commission's decision, notwithstanding Section 1.32.030 of the San Bruno Municipal Code to the contrary. Any member of the city council may, within this appeal period, request a review of the planning commission's decision before the city council at a duly noticed meeting as per San Bruno Municipal Code Chapter 12.210. A fee as established by resolution of the city council shall accompany an appeal that is made by a responsible person.
B.
The
city clerk shall schedule an appeal hearing before the city council
within fifteen calendar days of receipt of a timely appeal and this
hearing shall occur within sixty calendar days of the city clerk's
receipt of said appeal. The city clerk shall provide ten calendar
days' advance written notice of the date, time and location of the
hearing to the appealing person(s) by certified and first class mail.
The failure of a person to receive a properly addressed notice of
hearing shall not invalidate any claim or action or proceeding by
the city pursuant to this chapter.
(Ord. 1686 § 1, 2003; Ord. 1881 § 3, 2020)
A.
The
city council shall conduct a de novo hearing at the time and place
specified in the notice at which time any relevant evidence may be
submitted by any interested persons and city officials. The hearing
may be continued from time to time, as the city council deems necessary.
B.
Where
it appears that an appellant was served with a notice of hearing but
fails to appear either in person or by counsel, or fails to present
or offer evidence, the city council may adopt or approve the decision
of the planning commission, or it may decide the matter upon the record
established by the planning commission with or without taking any
additional evidence. Any oral or documentary evidence may be received,
but the mayor shall exclude irrelevant, immaterial, or unduly repetitious
evidence. The formal rules of evidence do not apply. However, the
city council's findings and determinations shall be stated in a duly
adopted resolution and shall be made upon a preponderance of evidence.
C.
If the
approved status is revoked, the resolution shall also contain the
following statements:
"At this time, deemed approved status is revoked. In the event
of non-compliance with this determination, the city may seek any or
all remedies available to it by law, including but not limited to
seeking an injunction in civil or criminal court or seeking revocation
of an ABC or other license. The costs and expenses therefor, and any
enforcement fees, as well as attorneys' fees, will be due from the
responsible person(s). In addition, said costs, expenses and fees
may be recovered in any manner provided by law, including, without
limitation, by the placement of a special assessment or lien against
the property. The decision of the planning commission/city council
is final and conclusive. Judicial review of the city council's resolution
is subject to the time limits set forth in California Code of Civil
Procedure, Section 1094.6."
D.
The
city clerk shall serve a copy of the city council resolution on all
appealing person(s) by certified and first class mail. The failure
of a person to receive a properly addressed resolution shall not invalidate
any action or proceeding by the city pursuant to this chapter.
(Ord. 1686 § 1, 2003; Ord. 1881 § 3, 2020)
A.
Misdemeanor.
Any person who violates, causes, or permits another person to violate
any provision of these regulations is guilty of a misdemeanor. Any
person convicted of violation under the provisions of this section
shall be punishable by a fine or imprisonment to the maximum permitted
under state law.
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 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 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.
Alternate
Remedies. The city's remedies, whether administrative, civil/injunctive
or criminal, that may be used to address noncompliance with this chapter,
are cumulative and non-exclusive, the city may exercise one or any
combination of said remedies at its sole discretion at any time.
F.
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.
G.
A prevailing party in any action, administrative proceeding, or special proceeding to abate a nuisance may recover reasonable attorneys' fees in accordance with Sections 5.08.240 through 5.08.280 except that it shall apply as appropriate to enforcement of this chapter and obtaining compliance with the stated performance standards or enforcement of conditions or revocation of an approved status.
H.
Inspection
and re-inspection fees to ascertain compliance with previously noticed
or cited violations shall be charged against the responsible party.
Fees shall be in the amount described in the master fee schedule.
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.
I.
Fee,
and regulations pertaining to fees, including the review, notification,
appeal, and reinspection of approved activities shall be in accordance
with the city master fee schedule.
(Ord. 1686 § 1, 2003; Ord. 1881 § 3, 2020)
The officials responsible for enforcement of the municipal code,
or their duly authorized representatives, may enter on any site or
into any structure for the purpose of investigation, provided they
shall 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 performance standards or
conditions of approval prescribed in these regulations. An owner or
occupant or agent thereof who refuses to permit such entry and investigation
shall be guilty of infringing upon the violations and penalties as
outlined in this chapter and subject to related penalties thereof.
(Ord. 1686 § 1, 2003; Ord. 1881 § 3, 2020)
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, the performance standards
for alcoholic beverage commercial sales. However, this chapter is
not intended to be applied, construed or given effect in a manner
that imposes upon the city, or upon any officer or employee thereof,
any duty towards persons or property within the city or outside of
the city that creates a basis for civil liability for damages, except
as otherwise imposed by law.
(Ord. 1686 § 1, 2003; Ord. 1881 § 3, 2020)
