HomeMy WebLinkAbout1859 - APPROVE MUP TO AMEND UP3542_800 WEST COAST HWYRESOLUTION NO. 1859
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF NEWPORT BEACH UPHOLDING THE DECISION OF
THE ZONING ADMINISTRATOR AND APPROVING MINOR USE
PERMIT NO. UP2011 -023 TO AMEND EXISTING USE PERMIT
3542 TO UPGRADE THE EXISTING TYPE 41 ON -SALE BEER
AND WINE ABC LICENSE TO A TYPE 47 ON -SALE GENERAL
(BEER, WINE & DISTILLED SPIRITS) ABC AND TO REDUCE
THE ALLOWED HOURS OF OPERATION FOR THE INTERIOR
OF THE RESTAURANT FROM 12:00 MIDNIGHT, DAILY TO
11:00 P.M., DAILY LOCATED AT 800 WEST COAST HIGHWAY
(PA2011 -139)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Occhio Rosso, LLC, with respect to property located at 800
W. Coast Highway, and legally described as Lots 24 and 25, Tract No. 1210, requesting
approval of a minor use permit.
2. The applicant proposes a n amendment existing Use Permit 3542 to upgrade the
existing Type 41 On -Sale Beer and Wine ABC license to a Type 47 On -Sale General
(Beer, Wine & Distilled Spirits) ABC License and to change the allowed hours of
operation for the interior of the restaurant from 12:00 midnight, daily to 11:00 p.m., daily.
3. The subject property is located within the General Commercial (CG) Zoning District. The
General Plan Land Use Element designation is General Commercial (GC).
4. A public hearing was held on October 20, 2011, in the City Hall Council Chambers, 3300
Newport Boulevard, Newport Beach, California. A notice of time, place, and purpose of
the meeting was given in accordance with the Newport Beach Municipal Code.
Evidence, both written and oral, was presented to, and considered by, the Planning
Commission at this meeting.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. This project has been determined to be categorically exempt under the requirements
of the California Environmental Quality Act, pursuant to Section 15301 (Class 1 —
Existing Facilities).
2. The Class 1 exemption includes the operation, repair, maintenance, permitting,
leasing, licensing, or minor alteration of existing public or private structures, facilities,
mechanical equipment, or topographical features, involving negligible or no expansion
of use. The proposed project involves the change of the type alcohol beverage license
and the change of hours of an existing restaurant with no construction proposed.
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SECTION 3. REQUIRED FINDINGS.
In accordance with Section 20.48.030 (Alcohol Sales) of the Newport Beach Municipal Code,
the following findings and facts in support of the findings for a use permit are set forth:
Finding
A. The use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales of
the Zoning Code).
Facts in Support of Finding
A -1. The project has been reviewed and conditioned to ensure that the purpose and intent of
Section 20.48.030 (Alcohol Sales of the Zoning Code) is maintained and that a healthy
environment for residents and businesses is preserved. The service of beer, wine and
distilled spirits is intended for the convenience of customers dining at the restaurant.
Operational conditions of approval recommended by the Police Department relative to
the sale of alcoholic beverages will ensure compatibility with the surrounding uses and
minimize alcohol related impacts.
A -2. The hours of operation will minimize the potential effects of noise on neighboring
businesses and residences to preserve the health and safety for visitors and other
businesses in the neighborhood.
In accordance with Section 20.52.020.F of the Newport Beach Municipal Code, the following
findings and facts in support of the findings for a use permit are set forth:
Finding
B. The use is consistent with the General Plan and any applicable specific plan;
Facts in Support of Findin
B -1. The General Plan land use designation for this site is GC (General Commercial). The GC
provides provide for a wide variety of commercial activities oriented primarily to serve
citywide or regional needs. The existing restaurant, including the proposed Type 47
ABC license and reduced hours of operation, is consistent with this land use category.
B -2. Eating and drinking establishments are common in the vicinity and are frequented by
the surrounding businesses, travelers that visit the City and residents of the City. The
establishment is compatible with the land uses permitted within the surrounding
neighborhood.
B -3. The subject property is not part of a specific plan area
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Finding
C. The use is allowed within the applicable zoning district and complies with all other
applicable provisions of this Zoning Code and the Municipal Code;
Facts in Support of Finding
C -1. The site is located in the Commercial General (CG) Zoning District. The restaurant,
including the proposed Type 47 ABC license and reduced hours of operation, is
allowed subject to the approval of a minor use permit in the CG Zoning District,
C -2 The restaurant facility adds to the high aesthetic enhancement to the site benefiting the
area and is consistent with the Mariner's Mile Strategic Vision and Design Framework.
Finding
D. The design, location, size, and operating characteristics of the use are compatible with
the allowed uses in the vicinity,
Facts in Support of Finding
D -1. The operation of the interior of the restaurant was previously restricted to the closing
hour of 12:00 midnight, daily by Condition No. 5 of Use Permit 3542. Reducing the
closing hour to 11:00 p.m., daily will create greater compatibility with the surrounding
uses as the hour is not considered late. The earlier closing hour is compatible with
surrounding uses which are comprised of commercial businesses, restaurants, and
residential.
D -2. A restaurant has operated at this location since 1963 and Use Permit 3542 was
approved in 1994 to grant a change in operational characteristics of the existing
restaurant use with beer and wine service. The use has not proven detrimental to the
area. This demonstrates the location's capability of operating as a compatible use with
other land uses in the vicinity.
D -3. The applicant is required to control trash and litter around the subject property.
D -4. The operational conditions of approval recommended by the Police Department
relative to the sale of alcoholic beverages will ensure compatibility with the
surrounding uses and minimize alcohol related impacts. The project has been
conditioned to ensure the welfare of the surrounding community so that the business
remains a restaurant and does not become a bar or tavern. The project has been
conditioned so that no dancing or live entertainment will be permitted on the premises.
D -5. The applicant has installed a grease interceptor and obtained Health Department
approval. The establishment will comply with the California Building Code and
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requirements of the Alcoholic Beverage Control Department to ensure the safety and
welfare of customers and employees within the establishment.
Finding
E. The site is physically suitable in terms of design, location, shape, size, operating
characteristics, and the provision of public and emergency vehicle (e.g., fire and medical)
access and public services and utilities; and
Facts in Support of Finding
E -1. The project site was issued a Staff Approval of substantial conformance with Usg
Permit 3542 to authorize changes in operational characteristics including interior and
exterior remodel of the building, a kitchen and service area addition, elimination of an
existing enclosed patio to accommodate for the future widening of West Coast
Highway, a 9 -foot retaining wall to provide additional area for improved on -site parking
and vehicle circulation, construction of a covered trash and recycling storage area, and
alteration of existing vehicular circulation and parking areas and the maintenance of
full valet parking service. Therefore, the building structure and site is designed and
developed for an eating and drinking establishment. The design, size, location, and
operating characteristics of the use are compatible with the surrounding neighborhood.
E -2 The full valet parking service plan will be updated and required to be re- approved by the
City Traffic Engineer and Community Development Director to update operational details
to improve the use and circulation of the parking areas.
E -3 Adequate public and emergency vehicle access, public services, and utilities are
provided within the existing tenant space.
Finding
F. Operation of the use at the location proposed would not be detrimental to the harmonious
and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard
to the public convenience, health, interest, a safety, or general welfare of persons
residing or working in the neighborhood of the proposed use.
Facts in Support of Finding
F -1. The project has been reviewed and includes conditions of approval to ensure that
potential conflicts with the surrounding land uses are minimized to the greatest extent
possible. The operator is required to take reasonable steps to discourage and correct
objectionable conditions that constitute a nuisance in parking areas, sidewalks and areas
surrounding the subject property and adjacent properties during business hours, if
directly related to the patrons of the establishment.
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F -2. The food service, eating and drinking establishment will continue to serve the
surrounding commercial and residential community locally and regionally. The
proposed establishment provides dining services as a public convenience to the
surrounding neighborhood. The continued service of alcohol will provide an economic
opportunity for the property owner to maintain a successful business at this location in
a way which best serves the quality of life for the surrounding community.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Planning Commission of the City of Newport Beach hereby approves Minor Use
Permit No. UP2011 -023, upholding the decision of the Zoning Administrator, subject to
the conditions set forth in Exhibit A, which is attached hereto and incorporated by
reference.
2. This action shall become final and effective fourteen days after the adoption of this
Resolution unless within such time an appeal is filed with the City Clerk in accordance
with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal
Code.
PASSED, APPROVED AND ADOPTED THIS 20" DAY OF OCTOBER, 2011.
AYES: Ameri, Hawkins, Hillgren, Kramer, Myers, Toerge, and Unsworth
NOES: None.
ABSTAIN: None.
ABSENT: None.
BY: UGcl U _
Charles UnswopM, Chairman
MN
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CONDITIONS OF APPROVAL
The following conditions of approval shall supersede the conditions of approval granted for
Use Permit 3542 on October 20, 1994, as reviewed and modified by the Planning Director on
May 14, 2010 and the accessory outdoor dining permit OD2010 -003.
1. The development shall be in substantial conformance with the approved site plan, floor
plan(s) and building elevations per the plans dated February 23, 2011. (Except as
modified by applicable conditions of approval.)
2. Any change in operational characteristics, hours of operation, expansion in area, or
other modification to the approved plans, shall require an amendment to this Use
Permit or the processing of a new Use Permit.
3. The applicant shall provide a minimum of one (1) on -site parking space for each three
(3) seats within the restaurant dining and waiting areas or a total of 25 parking spaces.
4. The hours of operation for the interior of the restaurant facility shall be limited to the
hours between 11:00 a.m. and 11:00 p.m., daily. The outdoor dining area shall be
subject to the hours of operation of 11:00 a.m. to 10:00 p.m., daily. All activities within
the outdoor dining area, including cleanup activities, shall cease at the specified
closing hour of the outdoor dining area. Increases in the hours of operation for the
outdoor dining area shall require approval of an amendment to this application.
5. The lighting in the parking area and restaurant facility shall be shielded in such a
manner so as to eliminate light and glare spillage on surrounding uses and properties
and West Coast Highway consistent with Section 20.30.070 of the Newport Beach
Municipal Code.
6. All employees shall park their vehicles on -site, or at an off -site location approved by
the Community Development Director.
7. Prior to exercising this Minor Use Permit, a revised valet parking and operations plan
shall be submitted for review and approval by the Community Development Director.
The valet and operations plan shall include a security component with provisions to
address unlawful patron parking on adjacent properties. The circulation and parking
layout on the revised valet parking plan shall be reviewed and approved by the City
Traffic Engineer. Should problems arise in the future, the Community Development
Director may require the preparation of a new valet parking and operations plan.
8. The valet drop off and pick up location shall be sufficiently set back from the public
right of way to ensure that staging /queuing vehicles will not impact the public right -of-
way.
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9. The valet operation shall be sufficiently staffed to ensure that the valet operation does
not impact the public right of way.
10. The valet operation shall comply with the most current California Vehicle Code
(California Vehicle Code).
11. The valet operation shall incorporate the "move one vehicle to get one vehicle' policy.
12. The valet parking service shall be utilized during all hours that the restaurant facility is
open to the public.
13. All signs shall conform to the requirements of Chapter 20.67 of the Newport Beach
Municipal Code.
14. No temporary "sandwich" signs, banners, balloons or similar temporary signs or attention
attracting devices shall be permitted, either on -site or off -site, to advertise the food
establishment, unless specifically permitted in accordance with the Sign Ordinance of the
Newport Beach Municipal Code, Chapter 20.42.
15. Temporary signs shall be prohibited in the public right -of -way unless otherwise
approved by the Public Works Department in conjunction with the issuance of an
encroachment permit or encroachment agreement.
16. The landscape planter no less than 4 feet in width shall be maintained in accordance
with the Mariner's Mile Strategic Plan and Design Framework and approved site plan.
17. Future changes to the exterior design of the building site shall require review by the
Community Development Director for consistency with the Mariner's Mile Strategic
Vision Design Framework.
18. The applicant shall maintain the landscape and irrigation plan with drought tolerant
plantings and water efficient irrigation practices, approved by the Planning Division
and the Municipal Operators. All planting areas shall be maintained with a permanent
underground automatic sprinkler irrigation system of a design suitable for the type and
arrangement of the plant materials selected.
19. The irrigation system shall be adjustable based upon either a signal from a satellite or
an on -site moisture - sensor. Planting areas adjacent to vehicular activity shall be
protected by a continuous concrete curb or similar permanent barrier. Landscaping
shall be located so as not to impede vehicular sight distance to the satisfaction of the
Traffic Engineer. All landscaped areas shall be maintained in a healthy and growing
condition and shall receive regular pruning, fertilizing, mowing and trimming. All
landscaped areas shall be kept free of weeds and debris. All irrigation systems shall
be kept operable, including adjustments, replacements, repairs, and cleaning as part
of regular maintenance.
20. All improvements shall be constructed as required by Ordinance and the Public Works
Department.
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21. The applicant is required to obtain all applicable permits from the City Building Division
and Fire Department. The construction plans must comply with the most recent, City -
adopted version of the California Building Code. All construction plans must meet all
applicable State Disabilities Access requirements. Approval from the Orange County
Health Department is required.
22. This Use Permit may be modified or revoked by the Zoning Administrator, Planning
Commission or the City Council should they determine that the proposed uses or
conditions under which it is being operated or maintained is detrimental to the public
health, welfare or materially injurious to property or improvements in the vicinity or if
the property is operated or maintained so as to constitute a public nuisance.
23. Deliveries and refuse collection for the facility shall be prohibited between the hours of
10:00 p.m. and 8:00 a.m., daily, unless otherwise approved by the Community
Development Director, and may require an amendment to this use permit.
24. Any event or activity staged by an outside promoter or entity, where the applicant,
operator, owner or his employees or representatives share in any profits, or pay any
percentage or commission to a promoter or any other person based upon money
collected as a door charge, cover charge or any other form of admission charge,
including minimum drink orders or sale of drinks is prohibited.
25. All doors and windows of the entire facility shall remain closed at all times except for
the ingress and egress of patrons and employees.
26. All entrances and exits to the building shall remain free of obstructions and available
for ingress and egress at all times.
27. The operator shall not allow occupancy of the building to exceed the occupancy limits
established by the Building Division or Fire Department. Strict adherence to maximum
occupancy limits is required.
28. The use of private (enclosed) "VIP" rooms or any other temporary or permanent
enclosures separate from public areas are prohibited.
29. The outdoor dining area shall be used in conjunction with the related eating and drinking
establishment and shall be limited to 202 square feet in area (seventeen (17 %) percent
of the total net public area of 1,182 square feet). Seating within the existing eating and
drinking establishment, including the outdoor dining area, shall be limited to a maximum
of 75 seats, unless an amendment to this Minor Use Permit is approved.
30. At such a time that the City widens West Coast Highway in this area, the applicant shall
reconfigure the main entry doorway to the eating and drinking establishment to eliminate
the door swing within the future public right -of -way. Alterations shall be made at the sole
cost and expense of the applicant.
31. The boundary of the outdoor dining area shall be marked to define the maximum 202
square foot area on the pavement or through the use of fences, walls, or similar
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barriers. Fences, walls or similar barriers shall serve only to define the outdoor dining
area and not constitute a permanent all weather enclosure.
32. The installation of roof coverings shall not have the effect of creating a permanent
enclosure. The use of umbrellas or a retractable canvas cover for shade purposes
shall be permitted. The use of any other type of overhead covering, including solid
ridged roof coverings, shall be subject to review and approval by the Community
Development Director and may require an amendment to this permit.
33. The outdoor dining area shall be designed to meet exiting and fire protection
requirements as specified by the California Building Code and shall be subject to review
and approval by the Building Division and the Fire Department.
34. The project shall comply with the most recent, City- adopted version of the California
Building Code and California Plumbing Code.
35. Approval is required by the Orange County Health Department prior to the final of
building permits.
36. All doors and windows of the entire facility, including those doors and /or windows leading
to the outdoor dining area, shall remain closed at all times except for the ingress and
egress of patrons and employees.
37. No amplified music is permitted in the outdoor dining area.
38. The operator of the eating and drinking establishment shall be responsible for the control
of noise generated by the patrons of the subject facility. The use of outside
loudspeakers, paging system, or sound system shall be prohibited in the outdoor dining
area or outside of the building. All noise generated by the proposed use shall comply
with the provisions of Chapter 10.26 of the Newport Beach Municipal Code. Chapter
10.26 provides, in part, that the noise should shall be limited to no more than depicted
below for the specified time periods:
Between the hours of
Between the hours of
7:00 a.m. and 10:00 p.m.
10:00 p.m. and 7:00 a.m.
interior exterior
interior exterior
Measured at the property line of
commercially zoned property: N/A 65 dBA
N/A 60 dBA
Measured at the property line of
residentially zoned property: N/A 60 dBA N/A 50 dBA
i Residential property: 45 dBA 55 dBA 40 dBA 50 dBA
39. The applicant shall retain a qualified engineer specializing in noise /acoustics to monitor
the sound generated by the outdoor dining activity to ensure compliance with these
conditions, if required by the Community Development Director.
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40. Should problems arise with regarding noise associated with the outdoor dining area, the
Planning Division shall require the removal of all or a portion of the outdoor dining area,
and /or seating in the areas that contribute or cumulatively contribute to the noise
problems or complaints. The Community Development Director may also curtail or
reduce hours of operation and use of the outdoor dining area in response to noise
complaints or loud and unreasonable noise generated by the outdoor dining use.
41. The use of area heaters shall remain consistent with the approval by the Public Works
Department, Building Division and the Fire Department. The use of propane heaters and
the storage of propane containers on the premises are prohibited, unless otherwise
approved by the Fire Department
42. Should this business be sold or otherwise come under different ownership, any future
owners or assignees shall be notified of the conditions of this approval by either the
current owner or the leasing company.
43. The primary use of the proposed facility shall be the operation of a restaurant which
shall provide a menu containing an assortment of food normally offered by such
restaurant. Full meal service shall be provided during all hours of operation. The
premises shall be furnished with tables and chairs at which food or beverages may be
comfortably consumed, and the operatory shall supply all necessary cutleries,
condiments, and linens with which an eating establishment is customarily equipped.
44. All mechanical equipment and trash areas shall be screened from surrounding public
streets and adjoining properties. All trash areas shall be screened from the adjoining
properties and streets.
45. The area outside of the food establishment, including the public sidewalk, shall be
maintained in a clean and orderly manner. The exterior of the business including the
common seating areas of the shopping center shall be maintained free of litter and graffiti
at all times. The owner or operator shall provide for daily removal of trash, litter debris
and graffiti from the premises and on all abutting sidewalks within 20 feet of the
premises. The operator of the food service use shall be responsible for the clean -up of all
on -site and off -site trash, garbage and litter generated by the use.
46. Trash receptacles for patrons shall be conveniently located both inside and outside of
the proposed facility, but not located on or within any public property or right -of -way,
unless otherwise approved by the Public Works Department.
47. All trash shall be stored within the building or within dumpsters stored in the trash
enclosure (three (3) walls and a self - latching gate) or otherwise screened from view of
neighboring properties, except when placed for pick -up by refuse collection agencies.
The trash enclosure shall have a decorative solid roof for aesthetic and screening
purposes. The trash dumpsters shall have a top, which shall remain closed at all
times, except when being loaded or while being collected by the refuse collection
agency.
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48. The applicant shall ensure that the trash dumpsters and /or receptacles are maintained
to control odors. This may include the provision of either fully self- contained dumpsters
or periodic steam cleaning of the dumpsters, if deemed necessary by the Planning
Division. Cleaning and maintenance of trash dumpsters shall be done in compliance
with the provisions of Title 14, including all future amendments (including Water
Quality related requirements).
49. Storage outside of the building in the front or at the rear of the property (except within
a fully screened enclosure approved by the Planning Division) shall be prohibited, with
the exception of the required trash container enclosure.
50. A covered wash -out area for refuse containers and kitchen equipment, with minimum
useable area dimensions of 36- inches wide, 36- inches deep and 72- inches high, shall
be maintained, and the area shall drain directly into the sewer system, unless
otherwise approved by the Building Manager and Public Works Director in conjunction
with the approval of an alternate drainage plan.
51. Grease interceptors shall be maintained for the restaurant facility in accordance with
the provisions of the California Plumbing Code, unless otherwise approved by the
Building Division.
52. Kitchen exhaust fans shall be maintained in accordance with the Uniform Mechanical
Code. The issues with regard to the control of smoke and odor shall be directed to the
South Coast Air Quality Management District.
53. To the fullest extent permitted by law, applicant shall indemnify, defend and hold
harmless City, its City Council, its boards and commissions, officials, officers,
employees, and agents from and against any and all claims, demands, obligations,
damages, actions, causes of action, suits, losses, judgments, fines, penalties,
liabilities, costs and expenses (including without limitation, attorney's fees,
disbursements and court costs) of every kind and nature whatsoever which may arise
from or in any manner relate (directly or indirectly) to City's approval of the Pizzeria
Mozza including, but not limited to, the Minor Use Permit No. UP2011 -023. This
indemnification shall include, but not be limited to, damages awarded against the City,
if any, costs of suit, attorneys' fees, and other expenses incurred in connection with
such claim, action, causes of action, suit or proceeding whether incurred by applicant,
City, and /or the parties initiating or bringing such proceeding. The applicant shall
indemnify the City for all of City's costs, attorneys' fees, and damages which City
incurs in enforcing the indemnification provisions set forth in this condition. The
applicant shall pay to the City upon demand any amount owed to the City pursuant to
the indemnification requirements prescribed in this condition.
Police Department Conditions
54. The type of alcoholic beverage license issued by the California Board of Alcoholic
Beverage Control shall be a Type 47 in conjunction with the service of food as the
principal use of the facility.
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55. This approval does not permit the premises to operate as a bar, tavern, cocktail lounge,
or nightclub as defined by the Newport Beach Municipal Code.
56. No alcoholic beverages shall be consumed on any property adjacent to the licensed
premises under the control of the licensee.
57. There shall be no exterior advertising or signs of any type, including advertising directed
to the exterior from within, promoting or indication the availability of alcoholic beverages
or signs, which are clearly visible to the exterior, shall constitute a violation of this
condition.
58. No "happy hour" type of reduced price alcoholic beverage promotion shall be allowed
except when offered in conjunction with food ordered from the full service menu. There
shall be no reduced price alcoholic beverage promotion after 9:00 p.m.
59. The petitioner shall not share any profits or pay any percentage or commission to a
promoter or any other person based up on monies collected as a door charge, cover
charge, or any other form of admission charge, including minimum drink orders or the
sale of drinks.
60. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food
during the same period. The licensee shall at all times maintain records, which reflect
separately the gross sales of food and the gross sales of alcoholic beverages of the
licensed business. These records shall be kept no less frequently than on a quarterly
basis and shall be made available to the Police Department on command.
61. There shall be no on -site radio television, video, film, or other electronic or media
broadcasts, including recordings to be broadcasted at a later time, which include the
service of alcoholic beverages, without first obtaining an approved special event permit
issued by the City of Newport Beach.
62. Live entertainment and dancing shall be prohibited as a part of the regular operation of
the establishment.
63. No games or contests requiring or involving the consumption of alcoholic beverages shall
be permitted.
64. Food service from the regular menu must be available to patrons up to thirty (30)
minutes before the scheduled closing time.
65. All owners, managers and employees selling alcoholic beverages shall undergo and
successfully complete a certified training program in responsible methods and skills for
selling alcoholic beverages. The certified program must meet the standards of the
California Coordinating Council on Responsible Beverage Service or other
certifying /licensing body, which the State may designate. The establishment shall
comply with the requirements of this section within 180 days of the issuance of the
certificate of occupancy. Records of each owner's, manager's and employee's
successful completion of the required certified training program shall be maintained on
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the premises and shall be presented upon request by a representative of the City of
Newport Beach.
66. A Special Events Permit is required for any event or promotional activity outside the
normal operational characteristics of the approved use, as conditioned, or that would
attract large crowds, involve the sale of alcoholic beverages, include any form of on-
site media broadcast, or any other activities as specified in the Newport Beach
Municipal Code to require such permits.
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