The purpose of this chapter is to specify the title, purpose
and applicability of the deemed approved alcoholic beverage serving
establishment regulations and to require conformity to require compliance
with the same.
(Ord. 2017-08)
The provisions of this chapter shall be known as the "Deemed
Approved Alcoholic Beverage Serving Establishment Regulations."
(Ord. 2017-08)
The purpose of the deemed approved alcoholic beverage serving
establishment regulations is to protect and promote the public health,
safety, comfort, convenience, prosperity, and general welfare by requiring
that all alcoholic beverage serving establishments lawfully operating
pursuant to a valid ABC license (that authorizes the retail sale of
alcoholic beverages for on-site consumption) comply with the deemed
approved performance standards of this chapter and achieve the following
objectives:
A.
Protect
residential, commercial, industrial, and civic areas and minimize
the adverse impacts of nonconforming and incompatible uses;
B.
Provide
opportunities for businesses with retail sale of alcoholic beverages
for on-site consumption to operate in a mutually beneficial relationship
to each other and to other commercial and civic services;
C.
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.
Provide
that alcoholic beverage serving establishment activities are not the
source of undue public nuisances in the community;
E.
Provide
for properly maintained alcoholic beverage serving establishments
so that negative impacts generated by these activities are not harmful
to the surrounding environment in any way; and
F.
Monitor
deemed approved activities so that they do not substantially change
in mode or character of operation.
(Ord. 2017-08)
A.
Applicability.
The deemed approved alcoholic beverage serving establishment regulations
shall apply, to the extent permissible under other laws, to all alcoholic
beverage serving establishments lawfully operating pursuant to a valid
ABC license (that authorizes the retail sale of alcoholic beverages
for on-site consumption) within the City as of the effective date
of the ordinance codified in this chapter.
B.
Duplicated
Regulations. Whenever any provision of the deemed approved alcoholic
beverage serving establishment regulations and any other provision
of law, whether set forth in this Code, or in any other applicable
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 in the deemed approved alcoholic beverage serving establishment
regulations.
C.
Relationship
to State and Federal Regulations. The deemed approved alcoholic beverage
serving establishment regulations shall be imposed as a matter of
municipal law, and are in addition to any federal regulations or state
alcoholic beverage regulations or license/permit conditions that may
apply.
(Ord. 2017-08)
The meaning and construction of words and phrases as hereinafter
set forth shall apply throughout the deemed approved alcoholic serving
establishment regulations, except where the context of such words
or phrases clearly indicates a different meaning or construction.
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 any establishment engaged in the retail sale (pursuant
to a valid State Department of Alcoholic Beverage Control (ABC) license)
of any alcoholic beverage for on-site consumption. The term alcoholic
beverage serving establishment shall include: (1) any alcoholic beverage
serving establishment that is not in existence on the effective date
of the ordinance codified in this chapter, but that is later permitted
by the City and issued a valid ABC license; (2) any alcoholic beverage
serving establishment engaged in the retail sale of any alcoholic
beverage pursuant to a conditional use permit, adopted prior to the
effective date of the ordinance codified in this chapter, and a valid
ABC license; and (3) any legal nonconforming alcoholic beverage serving
establishment activity operating pursuant to a valid ABC license.
means the lawful operation of retail sale, for on-site consumption,
of liquor, beer, wine or other alcoholic beverages.
means a requirement which must be carried out by the activity
in order to retain its deemed approved status.
means any alcoholic beverage serving establishment lawfully operating pursuant to a valid ABC license (that authorizes the retail sale of alcoholic beverages for on-site consumption) as long as it complies with the deemed approved performance standards as set forth in Section 9.27.070 of this chapter.
means regulations contained in Section 9.27.070 of this chapter.
means the status conferred upon a deemed approved activity.
Deemed approved status replaces legal nonconforming activity status.
means an activity which has been determined to be in violation
with the deemed approved performance standards of this chapter (pursuant
to this chapter, such an activity shall forfeit its deemed approved
status and shall no longer be considered a deemed approved activity).
means a commercial alcoholic beverage serving establishment activity which was a nonconforming use pursuant to the provisions of Chapter 30.76 of the Municipal Code and for which a valid State of California ABC license had been issued and used in the exercise of the rights and privileges conferred by the license at a time prior to the effective date of the ordinance codified in this chapter (such an activity shall convert to a deemed approved activity and shall no longer be considered a legal nonconforming activity).
means the actual space within a building or any area either
directly or indirectly supporting alcoholic beverage sales.
(Ord. 2017-08)
The City Manager shall designate a fair and impartial Administrative
Hearing Officer for administrative hearings (pursuant to law) necessary
to implement the provisions of this chapter. The Administrative Hearing
Officer shall conduct public hearings for the purpose of achieving
compliance with this chapter. This section is not intended to restrict
the powers and duties otherwise pertaining to other City officers
or bodies, related to monitoring and ensuring the harmony of alcoholic
beverage serving establishment activities in the City.
(Ord. 2017-08)
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 or potential
effects of alcoholic beverage serving establishment activities. These
standards shall apply, upon the effective date of the ordinance codified
in this chapter, to all deemed approved alcoholic beverage serving
establishment activities (i.e., possessing deemed approved status
pursuant to this chapter).
Deemed approved status shall only be maintained if the activities
of the alcoholic beverage serving establishment complies with all
of the following deemed approved performance standards:
A.
Does
not result in adverse effects to the health, peace or safety of persons
residing or working in the surrounding area.
B.
Does
not result in jeopardizing or endangering the public health or safety
of persons residing or working in the surrounding area.
C.
Does
not result in repeated nuisance activities within the premises or
in close proximity of 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.
Does
not result in violations to any applicable city, state or federal
laws or regulations, ordinance or statute.
E.
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.
Personnel
(such as managers or servers) do not sell, serve or deliver to a patron
any alcoholic beverage unless he or she has completed the Responsible
Beverage Service and Sales Training (RBSS) conducted by the California
Department of Alcoholic Beverage Control or by a certified RBSS Training
Provider in accordance with City regulations.
(Ord. 2017-08)
All alcoholic beverage serving establishment activities, new or existing, including legal nonconforming activities established pursuant to Chapter 30.76 of the Municipal Code, shall automatically become deemed approved activities as of the effective date of the ordinance codified in this chapter. Each such deemed approved activity shall retain its deemed approved status as long as it complies with the deemed approved performance standards.
(Ord. 2017-08)
The City or its designated enforcement authority shall:
A.
Provide
a notice to the owner of each alcoholic beverage serving establishment
with deemed approved status within the City, and also the property
owner (if not the same), of the establishment's deemed approved status
authorizing the establishment to lawfully continue its operation in
the manner required by this chapter.
B.
Provide the owner of any alcoholic beverage serving establishment with deemed approved status with a copy of Municipal Code Chapter 9.27 (Deemed Approved Alcoholic Beverage Serving Establishment Regulations); inform the owner of the requirement that the establishment shall be operated in accordance with the deemed approved performance standards; and inform the owner of the requirement that the deemed approved performance standards shall be posted in a conspicuous and unobstructed place visible from the entrance of the establishment for public review.
C.
The
notices shall be sent via first class and certified return receipt
mail. Should the notice be returned, then the notice shall be sent
via regular U.S. mail. Failure of any person to receive notice given
pursuant to this chapter shall not affect the deemed approved status
of the activity.
(Ord. 2017-08)
Whenever an alcoholic beverage serving establishment activity
discontinues active operation for more than 180 consecutive days,
or ceases to be licensed by the State Department of Alcoholic Beverage
Control, the deemed approved status shall automatically be terminated.
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 type of accident, provided that
the restoration does not increase the square footage of the alcoholic
beverage serving establishment. 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 alcoholic beverage serving establishment.
(Ord. 2017-08)
The provisions of this section shall outline the process by
which deemed approved activities are required to be reviewed.
Upon the City receiving a complaint from the public, Sheriff's
Department, Code Enforcement Officer, or any other interested party
that a deemed approved activity is in violation of the deemed approved
performance standards or that there has been a failure to comply with
any condition of approval, the following procedure shall be followed:
A.
A Code
Enforcement Officer shall assess the nature of the complaint and its
validity by conducting an on-site observation and inspection of the
premises to assess the activity's compliance with the deemed approved
performance standards. If the Code Enforcement Officer determines
that the deemed approved activity is in violation of the deemed approved
performance standards, an administrative warning shall be issued.
B.
If upon
reinspection or another similar complaint is filed that verifies that
the violation is not corrected or appears to be continuing, the Code
Enforcement Officer shall issue administrative penalties by giving
written notice of the violation to the owner and/or operator of the
establishment. Penalties shall be as follows:
1.
For
the first administrative penalty within any 12-month period following
the administrative warning, the penalty shall be a fine of $500.00;
2.
For a second administrative penalty within any 12-month period following the administrative warning, the penalty shall be a fine of $1,000.00 and the owner and/or operator of the establishment shall be referred to an Administrative Hearing Officer for an administrative public hearing. Notification shall be in accordance with Section 30.01.070 of the Municipal Code.
C.
Any administrative penalty issued under this section shall be issued, processed, enforced, and appealable in compliance with all of the provisions of Chapter 1.08 of the Municipal Code, unless otherwise expressly addressed by this chapter.
D.
The
purpose of the public hearing is to receive testimony and determine
whether violations to the deemed approved performance standards and/or
violations to any conditions of approval applicable to the premises
have occurred. While the hearing is open, any interested party must
enter into the record oral, written or documentary evidence to the
Administrative Hearing Officer for his or her consideration; failure
to do so shall preclude the party from introducing such evidence during
the appeal hearing and/or in a court proceeding.
E.
At the
public hearing, the Administrative Hearing Officer shall determine
whether: (1) the deemed approved activity conforms to the deemed approved
performance standards and to any other conditions or requirements,
and may maintain the deemed approved status for the activity in question;
or (2) to require changes, or impose reasonable conditions of approval
that in the judgment of the Administrative Hearing Officer, are necessary
to ensure compliance with the deemed approved performance standards
or other applicable conditions or requirements, and these conditions
shall be based on the evidence presented; or (3) to revoke the activity's
deemed approved status. In reaching a determination as to the appropriateness
of modifying or revoking an establishment's deemed approved status,
or imposing additional or amended conditions on the use, the Administrative
Hearing Officer may consider:
1.
The
length of time the deemed approved activity has been out of compliance
with the deemed approved performance standard(s).
2.
The
impact of the violation of the deemed approved performance standard(s)
on the community.
3.
Any
information regarding the owner of the deemed approved activity's
efforts to remedy the violation of the deemed approved performance
standard(s).
"Efforts to remedy" shall include, but are not limited to:
a.
Timely calls to the police department that are placed by the owner
and/or operator of the deemed approved activity, his or her employees,
or agents.
b.
Requesting that those persons engaging in activities causing violations
of the deemed approved performance standard(s) cease those activities,
unless the owner of the deemed approved activity, or his or her employees
or agents feel that their personal safety would be threatened in making
that request.
c.
Making improvements to the deemed approved activity's property or
operations, including, but not limited to, the installation of security
cameras, clear unobstructed windows, clean sidewalks and graffiti
abated within three days.
F.
Any
determination made by the Administrative Hearing Officer shall be
supported by written findings that the establishment as operated or
maintained constitutes a nuisance.
G.
New conditions of approval imposed as part of the administrative hearing process shall be made a part of the deemed approved status and the alcoholic beverage serving establishment shall be required to comply with these conditions of approval. The determination of the Administrative Hearing Officer shall become final unless appealed to the City Council pursuant to Chapter 1.12 of the Municipal Code.
H.
If the
Code Enforcement Officer determines that the violation is not capable
of correction, presents a serious threat to public health or safety,
or otherwise warrants expedited action, he or she may in lieu of issuing
an administrative warning or an administrative penalty, refer the
matter directly to an Administrative Hearing Officer for an administrative
public hearing at which the establishment's deemed approved status
may be modified or revoked.
I.
Any party seeking to appeal the determination shall be limited to issues and/or evidence presented to the Administrative Hearing Officer prior to the close of the Administrative Hearing Officer's public hearing on the matter, as the appeal is not de novo. The decision of the Administrative Hearing Officer shall be final unless appealed to the City Council in accordance with Section 9.27.120 of this chapter.
(Ord. 2017-08; Ord. 2022-06)
An appeal of a decision of the Administrative Hearing Officer shall be filed pursuant to Chapter 1.12 of this Code. In considering the appeal, the Council shall determine whether the deemed approved activity complies with the deemed approved performance standards, and may affirm or turn over, in whole or in part, the Administrative Hearing Officer's determination and require changes thereto by imposing conditions of approval as it may determine in its reasonable discretion that are necessary to achieve compliance.
(Ord. 2017-08)
All officials, departments, and employees of the City vested
with the authority to issue permits, certificates, or licenses shall
adhere to, and require compliance with this chapter.
(Ord. 2017-08)
A.
Infractions.
Any person who violates, causes, or permits another person to violate
any provision of these regulations shall be guilty of an infraction
unless otherwise provided.
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 Shall Constitute 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 pursuant to applicable law.
D.
Injunction
as Additional Remedy. Any violation of this chapter shall be and is
hereby 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.
Penalties.
Any person convicted of an infraction under the provisions of this
section shall be punishable by a fine to the maximum permitted under
state law. Any violation beyond the second conviction within a one-year
period may be charged by the City Attorney or District Attorney as
a misdemeanor, and the penalty for conviction shall be punishable
by a fine or imprisonment to the maximum permitted under state law.
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. 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 violator fail to pay the
fees due and owing in the required time, the charges shall be placed
as a lien against the property pursuant to applicable law.
(Ord. 2017-08)
The City shall designate the appropriate personnel to enforce
the provisions of these regulations.
(Ord. 2017-08)
