HomeMy WebLinkAboutExhibit No. 1Exhibit No. 1
Draft Resolution
5,
RESOLUTION NO.
A RESOLUTION OF THE PLANNING COMMISSION 01=
THE CITY OF NEWPORT BEACH REVOKING USE PERMIT
NO. 2001 -005 AND USE PERMIT NO. 2002 -034 (SEJOUR
EUROPEAN BISTRO & LOUNGE) ON PROPERTY
LOCATED 3400 VIA LIDO (PA2002 -167)
THE PLANNING COMMISSION FOR THE CITY OF NEWPORT BEACH HEREBY
FINDS, RESOLVES AND ORDERS AS FOLLOWS:
WHEREAS, Sejour European Bistro & Lounge ("Sejour") is located at the
northwest corner of Via Lido and Via Oporto and legally described as Lot 2 of Tract 1235;
and
WHEREAS, on April 5, 2001, the Planning Commission approved Use Permit No.
2001 -005 to allow a fine wine retail establishment to operate with a Type "21" Alcohol
Beverage Control (ABC) license (Off -Sale, General) and Type "42" ABC license (On -Sale
Beer and Wine, Public Premises) with periodic on -site wine tasting seminars and a
parking waiver; and
WHEREAS, on November 7, 2002, the Planning Commission adopted Resolution
No. 1579 of Use Permit No. 2002 -034, amending conditions of approval of Use Permit
No. 2001 -005, authorizing a Type "47° ABC license (On -Sale, General- Eating Place) for
on -site consumption of general alcohol beverages, live entertainment and expansion of
hours of operation; and
WHEREAS, pursuant to Section 20.96.040 of the City of Newport Beach Municipal
Code, the Planning Director determined that there were reasonable grounds for the
revocation of Use Permit No. 2001 -005 and Use Permit No. 2002 -034 and set a public
hearing so that the Planning Commission could set a date to consider the revocation of
Use Permit Nos. 2001 -005 and 2002 -034 ( "Use Permit'); and.
WHEREAS, after giving proper notice in accordance with law, a public hearing was
held on January 17, 2008 in the City Hall Council Chambers, 3300 Newport Boulevard,
Newport Beach, California. The Planning Commission unanimously voted to set a
revocation hearing for the Use Permit on March 20, 2008; and
WHEREAS, after giving notice in accordance with law, public hearings were held
on March 20, 2008 and on April 17, 2008 in the City Hall Council Chambers, 3300
Newport Boulevard, Newport Beach, California. Evidence, both written and oral, was
presented to, and considered by, the Planning Commission at this meeting; and
WHEREAS, in January 2007, the Newport Beach Police Department received a
verbal complaint that Sejour was operating as a club for dancing and entertainment on
Friday and Saturday nights. A subsequent inspection by the Newport Beach Police
Department revealed that on April 15, 2007, Sejour had placed a wooden fence over
most of the sidewalk adjacent to Via Oporto for the purpose of creating a smoking area
with chairs and tables without proper permits from the City; and
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Planning Commission Resolution No. _
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WHEREAS, on April 19, 2007, the Newport Beach Police Department inspected
the property and observed that music was playing and could be heard through the open
doors of the establishment, patrons were eating and drinking with full menus available,
dancing was allowed, and bottle service was also available; and
WHEREAS, based on reported observations by the Police Department and Code
Enforcement it was determined that Sejour was operating in violation of Conditions 3, 4,
10, 13, 14, 15, 17, 18 and 22. Administrative Citation 12007 -0395 was issued based on
these violations; and
WHEREAS, on May 4, 2007, the Planning Department requested Sejour's gross
receipts for review pursuant to Use Permit Condition No. 12; and
WHEREAS, on May 4, 2007, an inspection of the interior of the property was
performed by Code Enforcement. In the entrance, Code Enforcement Officers
observed couches, tables and chairs. In Unit A -1, Code Enforcement Officers
observed a small bar that had wine and soft drinks as well as tables, couches, chairs
and booths. In the room directly after the entrance, Code Enforcement Officers
observed additional couches, tables and chairs. In a small room near the bathroom,
additional couches and chairs were observed.
WHEREAS, On May 10, 2007, the business operator (Arthur Stockton)
responded to the May 4, 2007 correspondence. In the correspondence, Mr. Stockton
admitted that the use of the property was a combination of restaurant, bar and lounge.
He also noted that the Use Permit, as currently written, would prohibit Sejour from
successfully operating and that he could not comply with the conditions as written; and
WHEREAS, Mr. Stockton admitted that total sales for the past 12 months ending
May 30, 2007, were $730,871 and that the sales components break down as follows:
41 % food, 36% wine/champagne, 17% cordials /liquor and 6% beer. On -site sales were
78% of the total and retail sales were 22 %. The off -site sales ratios as to food, wine,
liquor and beer were 48% food and 52% wine /champagne (no off -site sale of beer or
hard alcohol). Based on Mr. Stockton's own admissions over 40% of his business
comes from the sale and consumption of alcohol on -site; and
WHEREAS, Mr. Stockton also admitted in his correspondence that it is virtually
impossible for him to comply with the terms of the Use Permit because of the retail
sales requirement. In the 19 months preceding the May 10, 2007 correspondence, Mr.
Stockton admitted that less than $10,000 had been generated by walk -in consumer
retail purchases. Further, Mr. Stockton admitted that most of the retail component was
comprised of off -site events, such as corporate parties. Mr. Stockton also admitted in
his correspondence that he was using Unit A -1 for the purpose of serving alcohol and
food; and
WHEREAS, On May 14, 2007, the Planning Department issued a letter
requesting submittal of a use permit application for the new use as a bar or cocktail
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City of Newport Beach
Planning Commission Resolution No. _
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lounge or that Sejour operate within the current conditions of the existing Use Permit.
No application for an amendment to the Use Permit has been received to date; and
WHEREAS, On May 26, 2007, the Newport Beach Police Department conducted
an investigation of the establishment and determined there were approximately 35
people in Unit A -2 and approximately 15 -25 patrons in Unit A -1. Many people in Unit A-
1 were consuming alcoholic beverages, including one table that had a bottle of vodka
that they were sharing. Administrative Citation No. 11688 was issued for violation of
Condition No. 14 of the Use Permit; and
WHEREAS, On November 9, 2007, the Police Department made an inspection
and noted that alcohol was available via waiter service in Unit A -1 and throughout the
establishment. Very loud music was playing from two very large speakers and dancing
was occurring in the area known as Unit A -1. The Police Department also observed that
"bottle service" was offered. The price for bottle service was $300 for a bottle of "Grey
Goose" vodka, while anything else was $250.
WHEREAS, on November 13, 2007, the Planning Department issued a request
for records to determine compliance with conditions of Use Permit No. 2001 -005. The
Planning Department requested that the records be submitted by December 13, 2007;
and.
WHEREAS, on November 30, 2007,
and observed that a private party was going
Unit A -1 and there were approximately 4
Waiters were delivering drink orders to
Approximately 150 to 160 patrons were ii
the Police Department made an inspection
on in the area of the business identified as
tables set up in the middle of the room.
Unit A -1 and food had been served.
i the establishment. No ABC postings or
maximum occupancy postings were observed by the officers. Patrons were dancing
throughout the establishment; and
WHEREAS, on December 12, 2007, Mr. Stockton informed the City that he had
elected to sell Sejour and asked whether he could allow the new owner to submit
records and resolve the other issues related to the business; and
WHEREAS, on December 12, 2007 the Planning Department sent a letter to Mr.
Stockton noting the violations at the property and noting that the documents related to
gross sales requested on May 4 and November 13, 2007 had not been provided; and
WHEREAS, on December 26, 2007, Mr. Stockton noted the City that Sejour
was now closed because operation of the business was dependent upon their operation
as a bar and restaurant as they bargained for in their lease; and
NOW, THEREFORE, BE IT RESOLVED that based in the aforementioned
findings, the Planning Commission finds as follows:
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Planning Commission Resolution No. _
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Section 1. The Recitals above are hereby declared to be true, accurate, and
correct.
Section 2. The Planning Commission hereby finds that the Administrative
Record which was considered by the Planning Commission in adopting this Resolution
consists, without limitation, of all documents, correspondence, testimony, photographs,
and other information presented or provided to the Planning Director, Planning
Commission and City including, without limitation, testimony received at Planning
Commission meetings, staff reports, agendas, notices, meeting minutes, police reports,
correspondence, and all other information provided to the City and retained in the files of
the City, its staff and attorneys, and such is hereby incorporated by reference into the
Administrative Record and is available upon request ( "Administrative Record ").
Section 3. The Planning Commission finds that notice of this hearing was in
conformance with California law.
Section 4. Pursuant to Municipal Sections 20.89.060.0 and 20.96.040, the
Planning Commission finds as follows:
That the terms or conditions of approval of the permit have been violated
or that other laws or regulations have been violated.
Sejour violated Condition No. 1, which requires substantial conformance
with the approved plot plan, floor plan, and elevations. Significant
changes to the floor plan have been made without approval by the
Planning Commission, including the addition of a fenced off patio area
along Via Oporto and the installation of tables, booths, and other seating
areas.
Sejour violated Condition No. 4, which requires future owners or
assignees to be notified of the conditions of this approval by either the
current business owner, property owner or the leasing agent. Future
owners, operators or assignees are required to submit, within 30 days of
transfer or sale of the business or alcohol license, a letter to the Planning
Department acknowledging their receipt and acceptance of the limitations
and conditions of approval of the Use Permit. Sejour has operated at this
location since November 2005 and, to date, Sejour has not submitted a
letter to the Planning Department acknowledging their receipt and
acceptance of the limitations and conditions of approval of this Use
Permit. Furthermore, the operator admitted in writing that he was not
aware of the conditions related to the use of the property.
Sejour violated Condition No. 5, which requires compliance with all
federal, state, and local laws. There have been multiple violations of the
Use Permit at this property, each of which is a violation of the Municipal
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Planning Commission Resolution No. _
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Code. In addition, there are documented violations of the Building Code
and ABC Regulations at the property. Furthermore, Sejour's blocking of
the sidewalk during April 2007 is a violation of Municipal Code Section
10.50.020.
■ Sejour has been issued two citations for violations of the Municipal Code
and these citations were not appealed and are now final.
■ Sejour violated Condition No. 11, which requires the applicant or operator
to provide records of gross receipts of all off -site alcohol sales when
requested by the City. These records were requested on May 4 and
November 13, 2007 and have not been provided to date.
■ Sejour violated Condition No. 13, which prohibits the premises from
operating as an eating and drinking establishment, restaurant, bar, tavern,
cocktail lounge or night club as defined by the Municipal Code.
Admissions by the operator and observations by Newport Beach Police
Department (NBPD) Officers indicate the premises were not operating as
a wine tasting bar, but instead operating like a nightclub, cocktail lounge
or bar with full food service available.
Sejour violated Condition No. 14 by exceeding the maximum occupancy
levels and by allowing alcoholic beverages to be served in Unit A -1.
NBPD reports indicate that occupancy loads have been found to be far in
excess of the occupancy limits, thereby creating not only an unsafe
condition but also a condition that is prohibited by the California Building
Code. Furthermore, NBPD officers have documented that alcohol sales
are occurring in Unit A -1 on April 14 and November 9 and 30, 2007.
• Sejour violated Condition No: 15 by operating outside of the permitted
hours of operation. NBPD Officers have reported on a number of
occasions that Sejour was not operating within their permitted hours of
operation set by the Use Permit and their ABC License.
■ Sejour violated Condition 16, which requires all windows and doors to
remain closed during live performances except for incidental ingress and
egress of patrons and prohibits dancing. On April 19 -20, 2007, NBPD
officers observed that music was playing and could be heard through the
open doors. NBPD Officers also observed dancing on several inspections
at this establishment, including dancing on April 19, November 9 and 30,
2007. In addition, on November 9, 2007, a server informed officers that a
portion of Unit A -1 is specifically kept clear for dancing.
■ Sejour violated Condition No. 18, which requires a special event permit for
any event or promotional activity outside the normal operational
n
2.
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Planning Commission Resolution No.
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characteristics of the retail business that would increase the expected
occupancy beyond 29 patrons and 6 employees at any one time or any
other activities as specified in the Newport Beach Municipal Code to
require such special events permit. NBPD investigations revealed that the
occupancy levels within Sejour were well beyond those required by the
use permit condition on November 9 and 30, 2007. Sejour did not file
applications for special event permits for either date.
Sejour violated Condition No. 23, which requires the posting of loitering,
open container, and other signs specified by the Alcoholic Beverage
Control Act. NBPD reports that no ABC signs were posted at this
establishment.
Sejour violated Condition 33, which requires the operator to control noise
generated by the establishment and for the noise generated by the use to
comply with the provisions of Chapter 10.26 of the Newport Beach
Municipal Code. On April 19 -20, 2007, NBPD officers were able to hear
the music and the disc jockey from the City Hall parking lot.
The establishment for which the permit was issued is being operated in an
illegal or disorderly manner.
There have been multiple violations of the Use Permit occurring at this
property, each of which is a violation of the Municipal Code. In addition,
there are documented violations of the Building Code and ABC
Regulations at the property. Furthermore, Sejour's blocking of the
sidewalk during April 2007 is a violation of Municipal Code Section
10.50.020. Sejour has been issued two citations for violations of the
Municipal Code and these citations were not appealed and are now final.
3. Noise from the establishment for which the permit was issued violates the
Community Noise Control Ordinance (Chapter 10.26 of the Municipal
Code).
On April 19 -20, 2007, NBPD Officers observed that music was playing
and could be heard through the open doors and could be heard from the
City Hall parking lot.
4. The business or establishment fails to fully comply with all the rules,
regulations and orders of the California State Department of Alcoholic
Beverage Control.
NBPD Officers have reported on a number of occasions that Sejour is not
operating within their permitted hours of operation set by their ABC
License.
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Planning Commission Resolution No. _
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Sejour's Alcoholic Beverage Control license prohibits dancing. NBPD
officers have observed dancing on several inspections at this
establishment including dancing on April 19, November 9 and 30, 2007.
Section 5. The Planning Commission finds that pursuant to the Conditions of
the Use Permit allowing for revocation, Section 20.96.040 of the Municipal Code, the
Administrative Record, the findings in Sections 1, 2, 3, and 4 above, sufficient grounds
exist to revoke Use Permit Nos. 2001 -005 and 2002 -034. Based thereon, it is hereby
resolved that Use Permit Nos. 2001 -005 and 2002 -034 are hereby revoked because the
operator violated the terms or conditions of approval of the Use Permit.
Section 6. This action shall be become final and effective fourteen (14) days
after the adoption of this Resolution unless within such time an appealed 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 17TH DAY OF APRIL 2008
L-B
MR
Robert Hawkins, Chairman
Bradley Hillgren, Secretary
AYES:
ABSENT:
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