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HomeMy WebLinkAboutExhibit 3 (2)Exhibit No. 3 City of Newport Beach Planning Commission Minutes April 5, 2001 Dennis & Chris Overstreet 3400 Via Lido • PA2001- 025(UP2001 -005) FILE C pY INDEX A Use Permit for a new alcoholic beverage license (Type 21, off -sale general) In conjunction with a fine wine retail establishment, The applicant also proposes to conduct periodic on -site wine tasting seminars in the evenings for approximately 30 people with a Type 42- alcohol license. The project requires the consideration of a parking waiver. Mr. James Campbell, Senior Planner, commented that the project is located at the corner of Via Udo and Via Oporto and noted that the site has no parking and they are relying on the Lido Marina Village Parking garage.. 'Mr. Campbell said that project approval requires a parking waiver. Mr. Campbell presented to the Commission a supplemental staff report because staff inadvertently put in the incorrect crime statistics in the original staff report. The ABO ordinance requires us to evaluate the alcohol beverage outlet pursuant. to some factors including crime statistics and over - concentration of liquor licenses in the area. Mr. Campbell said that staff prepared the report using the 1999 statistics for the Commission's consideration. The crime rates and concentrations are slightly better than were in 1998 but that does not change the fact that this is an over - concentrated area in terms of the number of licenses as well as the area has one of the higher crime rates in the City. Mr. Campbell said that the Via Lido parking garage inventory contained in the staff report is an outdated version and the correct one is attached to the supplemental staff report. Mr. Campbell said that the survey does not change the fact the parking garage Is over allocated during the daytime and during the evening hours if is not and that this is something that should be considered. Mr. Campbell said that staff wanted to discuss a minor condition change to Condition No. 4 that referenced the wrong unit. It should be Unit- B in Condition No. 4. Mr. Campbell referred to Condition No. 19 that relates to valet parking services and said that it would imply that valet parking is required at all times. Mr. Campbell explained that the valet item is an amenity that the applicant wants to provide for the use for the educational and wine tasting sessions. Staff did not look of the valet requirement as being a mandatory factor in the consideration of the parking waiver. Staff wants to change the condition to if they provide valet parking service it would be subject to the review of the Traffic Engineer in the Public Works Department. Mr. Campbell stated that staff recommends approval of the alcohol beverage outlet and feel that the way the permit is structured and how the conditions link these two operations together, it would not permit the use of these licenses by almost anyone else unless they operated the some operation that the Overstreefs are proposing. 13 Item No. 5 FA2001.025 (UP2001 -005) Approved +'n City of Newport Beach Planning Commission Minutes April 5, 2001 IND Chairman Selich said that it appears the basis upon which they are granting the parking waiver is the fact that they have an off -site parking management plan and asked if the Commission approves this with that parking waiver and one of the keys to it is the proposal to use 22 parking spaces in the garage, and the reason we are not using our standard off -site agreement is because it cannot meet the criteria of our standard off -site agreement but since this is a part of a parking management plan and we are waiving the parking based on that, if the agreement with the parking garage ceases to exist, does that mean the applicant has to come back to the Planning Commission with another parking solution? Mr. Campbell said that is correct, and that Condition No. 18 requires that they provide 21 parking spaces in the Lido Marina Parking garage. Chairman Selich said that qs long as they are in compliance with the Parking Management Plan, which controls the number of spaces they have, but if they lose the spaces and they cannot continue to operate, they would have to come back to the Planning Commission to seek relief from that or have the spaces or cease operation one way or another. Staff responded yes. Commissioner Gifford asked about the idea of how many uses occur simultaneously. She said that her question has more to do with what the definition of the site is because the wine tasting seminars are scheduled for evenings and almost all of Lido Marina Village is shut down in the evening in terms of the retail operations. Commissioner Gifford asked if "site" is not broad enough to include all of the parking that is available? Is the site Lido Marino Village or the building? Mr. Campbell said the site is the building. The use of the parking garage and the use of the spaces that are in the Village area are a factor that could be considered in the parking waiver. Mr. Campbell said that most of the uses in the evening hours are closed and there is less parking demand at that time. Commissioner Gifford noted that the other two uses operated at similar hours of operation and asked what two uses are referred to specifically. Mr. Campbell said that particular finding is setup for a larger site with multiple uses that are not operating at the some lime. In this particular case; the site is the property, which are really the retail aspect as well as the wine tasting. Commissioner Gifford said that it is not Lido Marina Village but that parcel of property. Commissioner Kiser asked it there were any telephone calls or written responses to the Public Notice sent out by the City from anyone either objecting or supporting the application. Mr. Campbell responded that he had.not received any telephone calls or letters from anyone. The applicant submitted a petition of endorsement. Commissioner Kiser referred to Condition No. 5 and asked how they differentiate the proposed use from an eating and drinking establishment and the evening use. Now is this put in the non - eating and drinking establishment category? Mr. Campbell referred to the floor plan, Suite A and Suite B. Suite A is the retail portion and Suite B is the on -site consumption portion. Staff structured this permit to authorize the retail sale of alcohol beverages and are indicating that the on- 14 �i City of Newport Beach Planning Commission Minutes site wine tasting, which is in a separate suite, is accessory to that use. Therefore, this use permit does not authorize an eating and drinking establishment. The on- site consumption license is the some license you would have at a wine bar. With this use permit, it is restricted as accessory to the retail use and you could not operate a bar or anything other than accessory wine tasting. Commissioner Kiser asked what is accessory to another use? If it turned out that this use of the wine tasting ended up being 60 percent of the revenue of the business, would that then make it less of an accessory use? Mr. Campbell commented that typically accessory would be less than 50 percent. This particular retail establishment would have to be limited to 20 percent pursuant to the definitions of the Zoning Code, so they would tail below 20 percent. The on -site consumption aspect is accessory but no more than 20 percent of the overall activity of the entire operation. Ms. Wood noted. that the Code definition of accessory use does not have anything quantifiable in it. It means "a use that is appropriate, subordinate and customarily incidental to the main use of the site. which is located on the main site of the use." Commissioner Agajanion asked what the hours of operation for the wine tasting were. Mr. Campbell said it would be 1 p.m. to 1 I p.m. Commissioner Agajanion asked how Suite 8 could be incidental after 7 p.m. Mr. Campbell said they are measuring it based on the overall use and It would average out over the entire use of the facility. Commissioner Agajanion asked if during the hours that Suite B is open, do the doors need to remain open to the public? Mr. Campbell responded yes. Commissioner Agajanian asked if any adult could walk in, and Mr. Campbell responded that they have to be 21 years old. Commissioner Agajanion asked if they could sit down and order wine, and Mr. Campbell responded yes. Commissioner Agajanion asked how that would differentiate an eating and drinking establishment from a bar? Commissioner Krandey said he would like to continue that line of thought and wanted it understood that it was not specific to the Overstreets. In theory, Thursday, Friday and Saturday nights you could walk into this establishment or any subsequent establishment that falls under this use permit, purchase a glass of wine, buy food because the applicant has suggested, in their letter, they will have food that will include sandwiches, salads, etc. Commissioner Kranzley said that, in Condition No. 5, the approval does not permit the premises to act as an eating and drinking establishment, he does not understand that. Commissioner Gifford asked to have the applicant clarify it for them. She said when she read the condition it was her understanding that it you conducted wine - tasting seminars, they would be ticketed events. The idea that the room could be used from 1 p.m. to I 1 P.M. would be that they could conduct seminars on the weekends and tastings in the evenings. Commissioner Gifford referred to a second optional finding they could make about parking and relying on the lido Morino Village parking garage and asked about all the metered parking on the street that typically is not used at that hour and is available. Is that because of a requirement to provide on -site parking? 15 JJ 0 0 City of Newport Beach Planning Commission Minutes April 5, 2001 Mr, Campbell said yes. Commissioner Gifford referred to the closest Municipal Parking Lot located at the comer of Villa way and 301h Street and asked if there was a public parking lot next to the Elks Club at the end of the street? Mr. Edmonston responded there is but the City has entered into an agreement with the FJks, which gives them the exclusive use of most of that lot from 6 p.m. to 6 a.m., seven days a week. Commissioner Tucker referred to Condition 1, the second sentence and said he was under the impression that the seminar room was going to be for wine tasting as a lead in to the sales from the liquor store portion. He said he was confused how this Condition ties in with the concern about it becoming a bar. Public Hearing Opened Chairman Selich asked the applicant to come forward and said the question is how does the wine tasting operate subordinate to the retail portion of their operation and what assurances do they have that it will not become a bar, either through the applicant or some other owner. Dennis Overstreet, applicant, 128 Via Trieste. Mr. Overstreet commented that he has run the Wine Merchant in Beverly Hills for three decades and that his operation is unique in the fact that they have wine tasting on site in conjunction with their retail sales. Mr. Overstreet said the ABC came up with the Type 42 license, which is primarily a wine - tasting license. Mr. Overstreet said that they wanted their retail license to run at the some time as the on -sale license. Christine Overstreet commented that she wanted to clarify that they understand the concerns of an 1 I p.m. hour. People who are drinking later in the evening ore more inebriated than those drinking earlier in the evening. Mrs. Overstreet said that their recommendation would be that, should the tasting room close at 8 p.m., three nights a week, that the retail part would have to close at the some time since the conditional use permit is recommending that the two licenses work hand in hand. Mr. Overstreet commented that, in purchasing the property, it was his understanding that they have a dedicated amount of spaces that are in the Lido Parking Garage that went along with the purchase of the building. Mrs. Overstreet said the agreement is through 2008 and that they also have on off -site parking agreement with the City of Newport Beach that went into effect 1975 and it is still in effect. Mrs. Overstreet said that to make sure they had enough parking, they went to California Parking Services, the management of the parking structure for Lido Marina Village, and have come up with a contract that would guarantee 22 spaces from 10 a.m. until closing. Mrs, Overstreet sold in reference to valet parking, they spoke with Mr. Edmonston, the Fire Marshall and Mr. Campbell and it has been determined through the Lido Morino Village owner that they could have space and have a valet parking situation. Commissioner Tucker referred to Condition No. 3 and asked if the wine tasting 16 INDEX 3(o L A City of Newport Beach Planning Commission Minutes _0 would be open 7 days a week but the educational seminars would be up to 3 days per week? Mr. Overstreet said it would probably be a 5 to 6 day a week type of operation, Commissioner Tucker asked staff if they looked of what is involved in a Type 42 liquor license, the application form, and the restrictions the ABC has? Mr. Campbell said that the Police Department would know better what the ABC restrictions are. Commissioner Tucker asked If Mr. Overstreet anticipates selling a glass of wine to a person who happens on his premises at 9 p.m, on a Friday night who is interested in drinking and not into wine lasting? Do you contemplate selling wine by the gloss in the tasting area? Mr. Overstreet responded yes they do, and they have had 100 residents sign a petition endorsing they would like to see this type of operation. Commissioner McDaniel asked what is to keep someone from stumbling in and getting three glasses of wine and hit the road again and what is the difference between that and a bar? Mr. Overstreet responded that they are a fine wine merchant and the standard for the products they carry is raised very high. Mr. Overstreet said they own the property and have a vested interest. Chairman Selich commented that they understand what the operation is and what the clientele that he is trying to attract to his business. Commissioner Agolanion asked how detrimental would it be to their operation if the Type 42 license operating hours was restricted to 9 p.m. instead of 11 p.m. Mr. Overstreet responded that it would get a little oppressive for adults and noted that they suggest their clientele have a meat before they go to a wine tasting. Commissioner Agaianian asked if they were intending on offering any table service in Suite B to the seats aside from the bar? Mr. Overstreet said probably not. Chairman Selich asked if no table service would be an acceptable condition on the use permit? Mr. Overstreet said yes. Commissioner Kiser asked if they are assuming that the wine tasting serving saes will be typical of the serving sizes one would get in a restaurant if they were to order a glass of wine? Or will they be more of a sample size with a few ounces of wine? Mr. Overstreet responded it would probably be a sample size. Commissioner Kiser asked if they would consider a normal retail price for the samples or would he be giving away the samples? Mr. Overstreet said they would have at least a retail plus mark -up price. Mrs. Overstreet said the idea is to educate yourself without getting inebriated so you have 1(2 ounce to an ounce of three wines. Commissioner Kiser suggested if they were able to lawfully restrict that wine - tosting side of the shop to be served only In 1 ounce maximum servings, would they have a problem with that? Commissioner Kiser asked if they were talking about the classes only where they would receive the 3 ounces of wine? Mrs. Overstreet said not necessarily, it runs the gamut. Commissioner Gifford commented, in trying to structure something that did not 17 ✓> 0 0 City of Newport Beach Planning Commission Minutes April 5, 2001 detract from their business, but gives the Commission confidence that a different operator who might come in the future, the permit would not have the latitude to have a significantly different operation. Commissioner Gifford asked Mr. Overstreet if he would have any objection to a condition that required that service in the wine bar would be made in Riedel stemware. Mr. Overstreet said no and would welcome that type of situation to ensure that wine appreciation is taking place rather than just tourism going from winery to winery for consumption. Mr. Overstreet also suggested a requirement is made that there is a minimum $10.00 cover that could be applied towards purchase of wine from the retail aspect. Commissioner Gifford asked if they would consider a condition that they not serve beer? Mr. Overstreet responded yes. Commissioner Tucker said he would like to clarify Condition 18 concerning the parking spaces, which is saying if they do not have a parking agreement at some point, they do not have a use permit. In other words, if they have a month to month parking agreement or one that expires in three or eight years, if they do not come back to the Commission to get a replacement use permit agreed upon, they will not have a use permit to operate. Mr. Overstreet said he understood that. Commissioner Tucker said he was not sure how he felt about requiring the applicant to have a cover charge or the type of stemware as a condition. Commissioner Gifford said that it is unusual to provide this as a condition, but the Riedel stemware alone would take care of any concerns they might have of what could happen in the future. Commissioner Gifford noted with respect to the hour of closing and said it has been her experience when a wine tasting event is over, people linger and talk about what they might order and the idea of I 1 p.m. does not necessarily mean that people will still be doing the tasting but it would seem like a reasonable hour. Commissioner Gifford expressed that if they have some condition that locks someone into a level of service that will require a certain pricing and not become a neighborhood bar, that would serve their purpose. Public Hearing Opened Christina Grace of Lido Island said that she has been to the Overstreets Wine Merchant in Beverly Hills and it is a lovely establishment. Ms. Grace supports it and urged the City to support it because it is for the betterment of the community. David Roster encouraged everyone to see the Wine Merchant in Beverly Hills and supports the applicant. Diana Choumis of Lido Isle supports the applicant and urged the City to keep the sales tax in Newport Beach. 18 3� City of Newport Beach Planning Commission Minutes April 5, 2001 INDEX Public Hearing Closed Commissioner Tucker suggested that they come up with some type of resolution and conditions that would allow this use to go forward. Commissioner Kranzley expressed he felt the Overstreets would bring a quality to Lido Marina Village that they need. Commissioner Kranzley said that he did not see anything in the conditions that would. prohibit the next person who owns this establishment from having an eating and drinking establishment. Mr. Campbell commented that he mentioned earlier about a 20 percent limitation and that is a definition in the Zoning Code for retail establishments for food and beverage sales for on -site consumption for example in a grocery store you could have on -site consumption as long as those transactions do not exceed 20 percent and they are not defined as an eating and drinking establishment. Twenty percent limitation on transactions is something that the Overstreets can and will comply with. if it were 10 exceed 20 percent of their transactions, then they would be classified as an eating and drinking establishment, which is not authorized by this use permit and they could not become a bar. Commissioner Kranzley noted that it could become a bar if were a very successful liquor store. Commissioner Kranzley commented that his sympathy goes with the Overstreets because they purchased a property at ground zero of alcohol related crimes in the City of Newport Beach. Commissioner Kranzley stated that they do want to keep revenues in the City of Newport Beach but the City spends a disproportionate amount of the budget in trying to keep the peace In District No, 15 and that is the problem in the Cannery Area and Lido Marina Village. Commissioner Kranzley expressed regret that he could not support this project in this area. Commissioner Kiser commented that the 20 percent limitation would naturally have an effect on the amount of on premises consumption of wine because the applicant would want and need to keep a close watch on what percentage was going out in their gross receipts in the tasting versus the off -sale. That would have a limifing effect on it that they would not be entertaining people coming in off the street just for a glass of wine. Commissioner Agajanion asked if there was anybody who could speak to the limitations to the Type 42 type of license. Mr. Campbell responded that he did not see a represeniafive from the Police Department and that he could not. Chairman Selich asked Mr. & Mrs. Overstreet to give a brief summary of the limitations on the Type 42 license. Mrs. Overstreet responded that, as for as she knew, it is limited to wine and beer only. She said their use permit would not allow beer, so it would be limited to wine only. Commissioner Agajonian asked how It would differ from the bar down the street that wanted to sell beer and wine? Mr. Overstreet commented that this goes back to 1973 when Type 42 was originally thought up for wine stores to be able to have on -site wine tasting. But unfortunately, the Legislature did not restrict it to say that the general public could not come in and buy a glass of wine or beer. That was the whole concept of this law originally. Mr. Overstreet said It is the some license that the wineries are 19 '+1 J� City of Newport Beach Planning Commission Minutes April 5, 2001 M using. Commissioner_Agojanian asked how it differs from a regular beer and wine license? Mr. Overstreet said that it does not. Commissioner Tucker said he would defer to the Police Department, which does not seem to believe that this particular use in this location will contribute to an alcohol related problem in the area. Commissioner Tucker said he would be supportive of this use in this location. Commissioner Kiser said he would be concerned about the cover charge and tying the applicant to a particular manufacturer that might become scarce or go out of favor. Commissioner Kiser brought up the possible limitation of evening hours of the on -site portion to bringing it back one hour to 10 p.m. so that it would restrict the potential future operator from creating a bar. Motion was made by Commissioner Kiser to approve use Permit 2001 -005 with the following revisions to the Conditions of Approval: Commissioner Kranzley remarked that, after listening to the discussions of the other Planning Commissioners, having reviewed his notes with regards to the various limitations that have been placed and the additional limitations that have been placed, and his desire to have high quality businesses on the Peninsula, he was reversing what he said prior and will be supporting this motion. Commissioner Agajanion commented that he was concerned whether the hours are open to the general public or whether you can be operating that wine tasting room and still have the doors closed to the public. Commissioner Agajonian asked what the Type 42 license either allow or permit you to do? Commissioner Agajanion said that he would support continuance on this project because he is not prepared. There was no answer to Commissioner Agajanion's question. Commissioner Kranzley suggested adding a Condition where receipts are reviewed annually by the City. substitute motion for Condition No. 34 was made by Commissioner Gifford that would not require an annual audit of receipts and that the Condition would be enforced by the factual observations by the Police Department or others in the way of complaint. they would have the ability to audit and is consistent with what they do with other businesses. Commissioner Kiser accepted the substitute motion as an amendment to his motion. Ayes: McDaniel, Kiser, Selich, Gifford, Kranzley, Tucker Noes: None Abstain: Agojanian Commissioner Kranzley reci led Ilrat, i' permit, staff to hove either n nrag^ the Police Department presu. ai sw. e1 next time they have an alcohol the ABC permit or someone from question. 0 q"4 City of Newport Beach Planning Commission Minutes INDEX EXHIBIT NO.4 FINDINGS AND CONDITIONS OF APPROVAL FOR PA2001.025(UP2001 -005) Findings: 1. The Land Use Element of the General Plan designates the site for "Retail and Service Commercial' use. Retail sales of alcoholic beverages and accessory wine tasting and wine educational seminars is permitted use within this commercial designation. The structure that the proposed use will occupy is legal, nonconforming with respects to the maximum floor area ratio. The proposed project does not increase the gross floor area of the building. Therefore, the proposed project is consistent with the General Plan Land Use Element and Local Coastal Program. 2. The project has been reviewed, and it has been determined that it is categorically exempt under Class I (Existing Facilities) requirements of the California Environmental Quality Act as it permits the continued operation and minor alteration of existing facilities with negligible or no expansion of use. 3. The proposed project is consistent with the purpose and intent of Chapter 20.89 of the Zoning Code (Alcoholic Beverage Outlets) and will not, under the circumstances of the case, be detrimental to the health, safety, peace, morals, comfort and general welfare of persons residing or working in the neighborhood or be detrimental or injurious to property or improvements in the neighborhood or the general welfare of the City and is consistent with the legislative intent of Title 20 of this Code for the fallowing reasons: a. The primary and principal function of the proposed olcoholic beverage outlet is as a retail establishment for the sole of general alcoholic beverages for off -site consumption. On -site consumption of beer and wine is limited to wine tasting and sholl be accessory and subordinate to the principal retail use. b. The primary retail use requires accessory wine tasting and wine education seminars. c. The accessory wine tasting may not be converted or otherwise become a restaurant bar, tovem, cocktail lounge. and night club. d. The hours of operation of the principal and accessory use is sufficiently restricted to prevent negative effects of alcohol sales and service. e. Conditions of approval have been included which should prevent problems associated with the sale and service of alcoholic beverages. I. Off -site parking is available for the use within the Lido Marina Village parking garage and the site is not authorized as an eating or drinking 21 e a� City of Newport Beach Planning Commission Minutes April 5, 2001 INDEX establishment as defined by the Zoning Code which could generate increased parking demand. g. No live entertainment is permitted and a special events permit is required for any event outside the normal operating characteristics of the proposed alcoholic beverage outlet. 4. The waiver of 21 parking spaces in this case will not, under the circumstances of the case, be detrimental to the health, safety, peace, morals, comfort and general welfare of persons residing or working in the neighborhood or be detrimental or injurious to property or improvements in the neighborhood or the general welfare of the City and is consistent with the legislative intent of Title 20 of this Code for the following reasons: G. The project includes a parking management plan that provides 22 parking spaces in the Lido Marina Village parking garage at all time the use is open for business. b. The project parking management plan includes the use of valet parking for in conjunction with the Lido Marina Village parking garage when the proposed educational seminars will occur. C. The project is not authorized as an eating or drinking establishment as defined by the Zoning Code which could generate increased parking demand. Conditions: 1. The alcoholic beverage outlet is hereby defined as a retail establishment for the sale of general alcoholic beverages for off -site consumption as the primary and principal use of the project site. On -site consumption of alcoholic beverages shall be limited to wine tasting and shall be accessory and subordinate to the principal retail use and sales shall not exceed 20 percent of gross sales. The retail use is prohibited from operation without the accessory wine tasting use. 2. The interior area authorized for on -site consumption of beer and wine in conjunction with a Type 42 alcohol license shall be limited to 1,263 sq. ft. as delineated on the approved floor plans as "Unit B." The interior area authorized for the retail sales for general alcoholic beverages for off -site consumption in conjunction with a Type 21 alcohol license shall be limited to 1,328 sq. ft. as delineated on the approved floor plans as "Unit A." The development shall be in compliance with the approved floor plans dated April 5, 2001. Substantial changes to the floor plans shall require prior approval by the Planning Commission. Any increase in area of either Unit A or Unit B shall be seems deemed substantial for the purposes of requiring review by the Planning Commission. 3. The hours of operation shall be limited to 10:00AM to 7,001204 11:OOPM daily for the retail portion of the project and 1:00PM to 11:OOPM daily for the wine tasting and wine educational activities. Organized 22 LAY Aa- City of Newport Beach Planning Commission Minutes April 5, 2001 educational seminars shall not be conducted more than 3 days per week and wine tasting, open to the general public may occur, any day during authorized hours. 4. The service for on -site consumption of beer and wine of shall be restricted to the interior of Unit A B as identified in Condition No. 2, unless approved by the Planning Commission, Police Department and the California Board of Alcoholic Beverage Control. 5. Approval does not permit the premises to operate as an eating and drinking establishment, restaurant, bar, tavern, cocktail lounge or night club as defined by the Municipal Code, unless the Planning Commission first approves a Use Permit. 6. The sale of distilled spirits shall not exceed 15% of gross receipts of all off - site alcohol sales. The applicant or operator shall maintain adequate records to determine compliance with this condition and shall provide the city said records when requested. 7. Alcoholic beverage sales from drive -up or walk -up service windows shall be prohibited. 8. The alcoholic beverage outlet operator shall take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks and areas surrounding the alcoholic beverage outlet and adjacent properties during business hours, if directly related to the patrons of the subject alcoholic beverage outlet. If the operator fails to discourage or correct nuisances, the Planning Commission may review, modify or revoke this use permit in accordance with Chapter 20.96 of the Zoning Code. 9. The exterior of the alcoholic beverage outlet 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. 10. 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. To qualify to meet the requirements of this section a 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 these conditions within 180 days of the effective date of this Use Permit. II. Records of each owner's, manager's and employee's successful completion of the required certified training program shall be maintained on the premises and shall be presented upon request by a representative 23 INDEX a3 City of Newport Beach Planning Commission Minutes April 5, 2001 Newport Beach. DEX 12. Loitering, open container, and other signs specified by the Alcoholic Beverage Control Act shall be posted as required by the ABC. 13. This Use Permit for an alcoholic beverage outlet granted in accordance with the terms of this chapter {Chapter 20.89 of the Newport Beach Municipal Codej shall expire within 12 months from the date of approval unless a license has been issued or transferred by the California State Department of Alcoholic Beverage Control prior to the expiration date. 14. A special events permit is required for any event or promotional activity outside the normal operational characteristics of this 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. 15. This use permit may be reviewed, modified or revoked by the Planning Commission or 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. 16. The applicant shall comply with all federal, state, and local laws. Material violation of any of those laws 16 connection with the use may be cause for revocation of this permit. 17. Should this business or either alcohol license be sold or otherwise come under different ownership or control, any future owners, operators or assignees shall be notified of the conditions of this approval by either the current owner /operator. Future owners, operators or assignees shall 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, restrictions and conditions of approval of this Use Permit. i8. The owner /operator of the proposed use shall enter into an agreement to provide and maintain a minimum of 21 parking spaces within the Lido Marina Village Parking garage to be accessible at all times during the operation of the use. 19. The applicant or operator of the facility shall may provide valet attendant service for the use in conjunction with the Lido Marina Village parking garage. The applicant or operator shall prepare a valet operated parking plan to be reviewed and approved by the Rublie darks BepeAmeat City Traffic Engineer prior to the commencement of 24 a� City of Newport Beach Planning Commission Minutes April 5, 2001 INDEX the valet service use. 20. Delivery vehicles shall not park Within the public right -of -way of Via Lido and Via Oporto. 21. Trash receptacles for patrons shall be conveniently located both inside and outside the proposed facility. 22. Trash generated by the business be screened from view from adjoining properties except when placed for pick -ups by refuse collection agencies. 23. No outdoor loudspeaker or paging system shall be permitted in conjunction with the operation. 24. No live entertainment or dancing shall be permitted in conjunction with the permitted use. 25. All signs shall conform to the provisions of Chapter 20.67 of the Municipal Code. 26. No temporary "sandwich" signs or similar temporary signs shall be permitted, either on -site or off -site, to advertise the restaurant. 27. The project shall comply with State Disabled Access requirements. 28. A handicapped assessable public restrooms are required. The restrooms must be in compliance with the Uniform Plumbing Code and all applicable Uniform Building Code requirements. 29. Health Department approval is required before issuance of a building permit. 30. Where grease may be introduced into the drainage systems, grease interceptors shall be installed on all fixtures as required by the Uniform Plumbing Code, unless otherwise approved by the Building Department and the Utilities Deportment. 31. The facility and related off - street parking shall conform to the requirements of the Uniform Building Code. 32. Upon evidence that noise generated by the project exceeds the noise standards established by Chapter 20.26 (Community Noise Control) of the Municipal Code, the Planning Director may require that the applicant or successor retain a qualified engineer specializing in noise /acoustics to monitor the sound generated by the restaurant facility to develop a set of corrective measures necessary in order to 25 q5 �pe�'?ogr CITY OF NEWPORT BEACH T PLANNING DEPARTMENT �= 3300 NEWPORT BOULEVARD qq� NEWPORT BEACH, CA 92658 (949) 644 -3200; FAX (949) 644 -3250 Hearing Date: Agenda Item: Staff Person: Period: 5, 2001 5 James Campbell (949) 644 -3210 14 days REPORT TO THE PLANNING COMMISSION Project: The Wine Merchant (Dennis & Chris Overstreet, applicant) 3400 Via Lido Purpose of Application: A Use Permit for a new alcoholic beverage license (Type 21, off -sale general) in conjunction with a fine wine retail establishment. The applicant also proposes to conduct periodic on -site wine tasting seminars in the evenings for approximately 30 people with a Type 42 alcohol license. The project requires the consideration of a parking waiver. Recommended Action: Hold a public hearing and approve, modify or deny PA 2001 -025 (UP 2001 -005) General Plan: Retail and Service Commercial Zone: RSC (Retail and Service Commercial) Legal Description: Lot 2 of Tract 1235 Owner: Dennis & Chris Overstreet, Newport Beach Introduction The applicant requests to establish a fine Wine retail establishment with accessory wine tasting and food preparation. In addition, the applicant proposes to conduct periodic seminars with up to 30 people in wine etiquette, wine tasting and fine wine in general. The project will be operated in two distinct areas of an existing retail /office building located at the northwest corner of Via Lido and Via Oporto adjacent to the Lido Marina Village area. The retail aspect of the project requires a Type 21 (off -site general) alcoholic beverage license and the wine tasting aspect of the project requires a Type 42 (on -sale beer and wine). The applicant's project description narrative is attached as Exhibit No. 1 and plans are attached as Exhibit No 5. 4(o Subject Property and Surrounding Land Uses Current Development: Retail facility within a commercially zoned block, that includes retail and office To the north: Commercially zoned block that includes retail, office and restaurants within Lido Marina Village. To the east: Commercially zoned block that includes retail, office and restaurants within Lido Marina Village. To the south: Commercially zoned block that includes retail, office, movie theater and restaurants within Via Lido Plaza Shopping Center. To the west: Commercially zoned block that includes retail and office uses PA 2001- 025(UP2001 -005) April 5, 2001 Paget 41 Proiect Description The retail portion of the operation will occupy 1,328 square feet of the existing building, and is depicted on the attached plans as "Unit A ". Tenant improvements are generally limited to sales counters and display areas. The wine tasting and wine educational aspect of the project will occupy 1,263 square feet of the existing building, and is depicted on the attached plans as "Unit B ". The improvements to this area include a small residential style kitchen, tasting bar with 5 seats, display and storage areas, a cashier area and three distinct seating areas that resemble living rooms. These living room environments will seat 24 people and the total seating based upon the proposed floor plan is 29 seats. The proposed hours of operation are 10:00AM to 7:OOPM daily for the retail portion of the project and 1:OOPM to 11:OOPM daily for the wine tasting and wine educational activities. The applicant requests a Type 21 (off -sale general) license as they offer fine distilled spirits in addition to wine products. The Type 42 (on -site beer and wine) license permits on -site consumption of beer and wine only and is not associated with a restaurant. Analysis Conformance with the General Plan and the Local Coastal Program The Land Use Element of the General Plan and the Local Coastal Program Land Use Plan designate the site for "Retail Service Commercial' uses. The allowable floor area ratio for the Lido Village area is 0.5/0.75 FAR. Staff believes that the primary use of the facility is retail sales with accessory wine tasting and educational seminars. Retail sales are a permitted within the Retail Service Commercial designation. The facility is located in the Coastal Zone and staff believes the proposed project does not intensify the existing retail. Therefore, staff has determined that Coastal Commission approval is not required prior to implementation of this use permit. The project site is presently developed with a 2,591 square foot building on a 3,095 square foot lot which results in a 0.83 FAR. The building is considered legal, nonconforming and the project does not include any increase in floor area, therefore, the project can be found in compliance with the General Plan and Local Coastal Program. Zoning Ordinance Staff believes that the use is best classified as retail sales of food and beverages. Food consumption and on -site consumption of alcohol with the wine tasting operation is accessory to the retail use. The retail sales will consist of alcohol products, gourmet food and gift baskets. The primary purpose of the wine tasting and wine educational activities is to promote wine sales. The application requests that these activities be permitted 7 days a week which would provide flexibility in scheduling. The applicant indicates that seminars would occur as many as 2 to 3 times per week during the summer, primarily on weekend evenings, and infrequently during the winter months. Staff believes that the wine tasting and periodic wine educational seminars are accessory and complementary to the proposed retail use. These operational characteristics lead staff to conclude that the overall use of the site should not be classified as an eating and drinking establishment as this use classification is reserved for uses, such as restaurants and bars, that are in the business of providing food and beverage, whether for on -site or off -site consumption as a primary use. PA 2001- 025(UP2001 -005) April 5, 2001 Page to Required Off - Street Parking The project site presently provides no off - street parking and is considered legal, nonconforming. Although staff considers the use predominately as a retail use, and therefore eligible to take advantage of the legal, nonconforming parking requirement, the educational seminars can create an increased parking demand beyond a typical retail use. Clubs, lodges and assembly uses require parking based upon the number of seats (1 space per 3 seats). The parking requirement for educational facilities are unspecified but are determined through a Use Permit. Staff believes that the proposed use has similar parking demand characteristics to assembly uses, but additional parking should be considered for employees. The proposed floor plan has seating for 29 persons and employees range from 2 -6 persons. Using the 1 space per three seats and 1 space for each employee, a total of 16 spaces for the wine tasting/education portion of the use (29 seats /3 seats = 9.67 + 6 employees = 15.67 — 16 spaces) would be required. Since this operation occurs simultaneously with the retail use between IPM and 7PM, the peak demand could reach the sum total of the retail demand and the wine tasting/educational demand. The retail establishment occupies 1,328 sq. ft. and using a standard retail parking rate of 1 space per 250 sq. ft., 6 spaces would result (1,328/250 = 5.31 — 6 spaces). Since the employees would serve both uses and are included in each sub calculation, a reduction of one parking space might be appropriate. Therefore, the worst case demand may be 21 spaces when both uses operate. Staff suggests that this minimum number as spaces be established as the required parking for this unusual use. The site has access to 4 free parking spaces at all times within the Lido Marina Village parking garage pursuant to a 1974 off -site parking agreement. This agreement also provides access to 33 additional non - exclusive spaces for self parking as needed. The agreement terminates in December of 2008. Staff received a proposal from California Parking Services, the operator of the Lido Marina Village parking garage, to the applicant on March 27, 2001. The proposal outlines a new off -site parking arrangement with the operator of the garage. The applicant and operator of garage are proposing to provide 22 self parking spaces in the garage at all times at a cost to the applicant of $1,500 per month. In addition, the applicant proposes to have valet parking services from 6PM to I IPM daily with two attendants Friday and Saturday and one attendant Sunday through Thursday. A $3 fee valet service will be charged to the applicant's customers with a validation limit of two hours. The proposal between the California Parking Services the applicant appears to be a month to month arrangement. A formal agreement will need to be executed between Lido Marina Village and the applicant as the parking service does not have the authority to enter to an agreement according to the management company. In order to approve the proposed use, a parking waiver must be considered as the proposed off -site parking arrangement does not meet the criteria for an off -site parking agreement set forth in Section 20.66.080 as the parking arrangement involves the parking service and not the property owner. Section 20.66. 100 establishes the procedure and findings for consideration of a parking waiver. The one of the following findings must be made in order to approve the proposed alcoholic beverage outlet. A municipal parking facility is so located as to be useful in connection with the proposed use or uses on the site or sites. PA 2001 -025 (UP2001 -005) April 5, 2001 Page 4q The closest municipal parking lot is located at the corner of Villa Way and 30' street and is not located in close proximity as to be useful to the project. 2. The site is subject to two or more uses and the maximum parking requirements for such uses do not occur simultaneously. The site does have more than one use, but the other two uses operate at similar hours of operation, and therefore this finding cannot be made. The use will rely upon the Lido Marina Village parking garage which does have a variety of mixed -uses that operate at different hours. Most non -food uses typically close by 6PM and the applicants use of the garage after this time for educational seminars should not create a conflict. 3. A parking management plan for the site has been approved by the Planning Commission pursuant to Section 20.66. 100 (B). The applicant's off -site parking arrangement and valet parking proposal can be considered as a parking management plan and can be used to make this finding for approval of the parking waiver. The characteristics of the parking management plan are discussed above and as noted, it does not secure parking for the long term. 4. The Planning Commission makes the following findings: a. The parking demand will be less than the requirement in Section 20.66.030. b. The probable long -term occupancy of the building or structure, based on its design, will not generate additional parking demand. In order to make this finding, the commission will need to find that the parking demand will be no more than a typical retail parking demand for the same space due to the legal, nonconforming status of the parking. Previously, staff identified a potential peak parking demand of 16 spaces for the educational component of the use. The 1,268 square foot space would require 6 spaces at the typical retail parking ratio (1,263/250 = 5.052 — 6 spaces). It is not likely that 35 people (29 patrons and 6 employees) will generate a parking demand no greater than 6 spaces. Therefore, this finding cannot be made. The latest parking survey prepared in 1998 for the Lido Marina Village parking garage puts it well over allocated during the evening and under utilized during the day. The parking analysis for the garage is attached as Exhibit No. 2. This parking survey is out -dated as the Thunderbird and the Buzz are presently closed, with only the Buzz potentially eligible to re -open. Recent inquiries have been made regarding the conversion of the space formerly occupied by the Thunderbird restaurant to office use. What impact that would have on the availability of parking will require additional review by staff when the specifics of the proposal are known. Staff contacted California Parking Service requesting data on the actual usage of the lot, but as of the writing of this report, no hard data is available on the actual usage of the garage over time. Staff has recently observed the garage and believes that the garage has sufficient unused capacity at this time to serve the project. If the former Thunderbird and Buzz were to reopen, evening parking availability may be impacted. According to Lido Marina Village management, the parking structure only gets full during special community events like the Christmas Boat Parade. PA 2001 -025 (UP2001 -005) April 5, 2001 Page 5 50 Alcoholic Beverage Ordinance The use involves the sale and consumption of alcohol, and therefore, a Use Permit is required that is subject to the provisions of the Alcoholic Beverage Outlet ordinance as set forth in Chapter 20.89 of the Municipal Code. On June 8, 1998, the City Council adopted Chapter 20.89 of the Municipal Code, the Alcoholic Beverage Outlet (ABO) Ordinance. The purpose of the ordinance is to preserve a healthy environment for residents and businesses by establishing a set of consistent standards for the safe operation of alcoholic beverage retail outlets. Chapter 20.89 is intended to prevent alcohol - related problems. The chapter provides a set of additional tools to help reduce the costly and harmful effects of irresponsible alcohol sales and consumption on local businesses, residents, law enforcement, and various other resources. The ABO Ordinance requires a Use Permit for all new alcoholic beverage outlets and revisions to existing licenses and requires that the Planning Commission consider the following factors when reviewing a request for a use permit: 1. Whether the use serves public convenience or necessity. 2. The crime rate in the reporting district and adjacent reporting districts as compared to other areas in the City. 3. The number of alcohol licenses per capita in the reporting district and in adjacent reporting districts as compared to the county -wide average. 4. The numbers of alcohol - related calls for service, crimes or arrests in the reporting district and in adjacent reporting districts. 5. The proximity of the alcoholic beverage outlet to residential districts, day care centers, park and recreation facilities, places of religious assembly, and schools. The following charts provide 1998 data related to factors 2, 3 and 4. Maps showing the census tracts and Police Reporting districts with the project site highlighted are attached as Exhibit C. License Concentration PA 2001 -025 (UP2001 -005) Apri15, 2001 Page 6 5 Census Tract Projected Based on No. 635.00 Orange County avers e 1990 Population: 6,182 — W4 9 ° "' ABC Licenses: Total licenses 59 7 (1 per 104 persons) (1 per 893 persons) PA 2001 -025 (UP2001 -005) Apri15, 2001 Page 6 5 Crime Statistics "Part I Crimes" are homicide, forcible rape, robbery, aggravated assault, burglary, larceny -theft, auto theft, and arson. All other crimes are "Part 2 crimes." The "Crime Rate" the number of crimes per 100,000 people. "Alcohol- related arrest" means the offender had been drinking prior to the incident for which they were arrested. Public Convenience or Necessity. City Council Policy K -7 provides criteria for situations when the public convenience or necessity will not be served. The policy states that the public convenience or necessity will not be served with the approval of a new, upgraded or transferred license for a bar within an over concentrated or high crime area. Although the project includes a 5 -seat wine tasting bar, staff believes that the proposed project is primarily retail oriented with the use of the bar accessory. Therefore policy K -7 does not apply. Currently, there are 71 establishments providing alcoholic beverage service in the area (see Table 1 below). It can be argued that there are an abundance of establishments providing alcoholic beverage service in this area and that the public convenience or necessity would not be served by permitting another operation. The proposed operation is not a typical alcoholic beverage outlet and very few similar operations exist. The propose operation provides a benefit to the public as it promotes responsible alcohol consumption and education. Each of these views must be balanced by the other four factors to be evaluated by the Planning Commission for this use permit. Based upon all the information assessed in these factors, the Planning Commission may determine whether this approval is necessary to serve the public convenience or necessity. Table 1 Subject Reporting Adjacent Reporting Adjacent Reporting subject Reporting City-Wide District No. 15 District No. 13 District No. 16 Crimes District No. 16 *Number of active ABC Licenses 59 7 Part 1: 2,527 323 131 142 Part 2: 3,247 654 187 246 Total 5,774 977 318 388 Crime Rate: 3510.1 11262.2 6084.53 5568.63 Arrests Total Arrests: 3,515 839 176 255 Alcohol - Related: 33.960A 50.3% 31.820% 47.71% "Part I Crimes" are homicide, forcible rape, robbery, aggravated assault, burglary, larceny -theft, auto theft, and arson. All other crimes are "Part 2 crimes." The "Crime Rate" the number of crimes per 100,000 people. "Alcohol- related arrest" means the offender had been drinking prior to the incident for which they were arrested. Public Convenience or Necessity. City Council Policy K -7 provides criteria for situations when the public convenience or necessity will not be served. The policy states that the public convenience or necessity will not be served with the approval of a new, upgraded or transferred license for a bar within an over concentrated or high crime area. Although the project includes a 5 -seat wine tasting bar, staff believes that the proposed project is primarily retail oriented with the use of the bar accessory. Therefore policy K -7 does not apply. Currently, there are 71 establishments providing alcoholic beverage service in the area (see Table 1 below). It can be argued that there are an abundance of establishments providing alcoholic beverage service in this area and that the public convenience or necessity would not be served by permitting another operation. The proposed operation is not a typical alcoholic beverage outlet and very few similar operations exist. The propose operation provides a benefit to the public as it promotes responsible alcohol consumption and education. Each of these views must be balanced by the other four factors to be evaluated by the Planning Commission for this use permit. Based upon all the information assessed in these factors, the Planning Commission may determine whether this approval is necessary to serve the public convenience or necessity. Table 1 Alcoholic Beverage Service Licenses subject Reporting Adjacent Reporting Adjacent Reporting District No. 15 District No. 13 District No. 16 *Number of active ABC Licenses 59 7 5 *The Number of active ABC licenses is the total of all types of licenses known to the Newport Beach police department as of the date of this document 2. Crime Rate. There were 5,774 crimes reported to the Police Department in 1998, of which 2,527 were Part One Crimes. The remaining 3,247 crimes were Part Two Crimes that include alcohol related arrests. Crime statistics that exceed the citywide average by 20% are considered significant pursuant to City Council Policy K -7. The reporting district that the project is located exceeds the citywide average by 320 %. The Police Department has reviewed the proposed project and has stated that they have no serious concerns with the proposed operation. However, the Police Department also has stated that the project must be considered in light of the larger issue of the intensification of alcohol and related uses on the Balboa Peninsula, especially in the Cannery Village area, which has experienced resident PA 2001 -025 (UP2001 -005) April 5, 2001 Page 7 B6, complaints regarding alcoholic beverage outlets. The Police Department believes that this demonstrates the disproportionate impact alcohol related offenses continues to have on their workload and on the quality of life in the community. However, the Police Department does not object to the proposed project as described and regulated. 3. Over Concentration. Census Tract 635.00 currently has a ratio of liquor licenses to population that exceeds the average ratio of Orange County. Within the reporting district, there currently are 59 alcoholic beverage outlets, which establishes a ratio of 1 liquor license per 104 persons. This ratio is significantly higher than the average ratio of Orange County, which is 1 license per 893 persons. This is due to the fact that the area is predominately commercial and has a high number of eating and drinking establishments. The ratio of alcoholic beverage licenses to population also constitutes an "undue concentration" of licenses under the provisions of Section 23958.4 of the California Business and Professions Code. Therefore, the ABC is required to deny the application for the license unless it is determined that public convenience or necessity would be served by its issuance. The Police Department is especially concerned about the concentration of ABC licenses on the Balboa Peninsula. Therefore, the Police Department is recommending that the proposed project be reviewed against the greater issue of intensifying alcohol usage on the peninsula. 4. Alcohol Related Arrests & Calls for Service. Alcohol related arrests means the offender had been drinking prior to the incident for which they were arrested. There were 839 arrests in Reporting District No. 15 during 1999 as compared to the 3,515 arrests citywide. Of the arrests made in Reporting District No. 15, 50.3% were alcohol - related (422 total alcohol related arrests), while 34% of the arrests citywide were alcohol - related. (1,194 total alcohol related arrests). At public hearings for other projects in the Cannery Village and McFadden Square area, residents and business operators have reported a pattern of public nuisance behavior. Generally, this behavior is conducted by patrons of area restaurants and bars as they arrive, depart, or travel between establishments. Public nuisances related to alcohol service has been a historic problem in the Lido Marina Village due to various nightclubs, but all the establishments of this type are no longer in operation. The ABO Ordinance requires that the applicant take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, alleys and other areas during business hours. However, in this area, with a high number of alcoholic beverage outlets, it is difficult to determine which establishment is responsible for public nuisance behavior in public areas. Planning and Police Department staff do not believe that the proposed establishment as described and conditioned will contribute to any alcohol - related problems in the area. 5. Adjacent Uses. There are no day care centers, schools, or park and recreation facilities in the vicinity of the project site. There are few residences in the general vicinity of the project site, but none that directly abut the project site. The site is surrounded by commercial uses and staff does not believe that the proposed use retail sales of alcoholic beverages and accessory uses will prove detrimental to the surrounding commercial uses. PA 2001 -025 (UP2001 -005) April 5, 2001 Page 8 53 The last remaining issue related to this request is future operators. A future operator might not have the same objectives and principals that the applicant has. Use Permits run with the land and not with an individual. As long as a future operator abides by the parameters of the Use Permit, continued operation is permitted. Major changes in the operational characteristics will require Planning Commission review of a new Use Permit. Staff has structured this Use Permit to permit the on -site consumption of beer and wine as an accessory use to the retail establishment, and the conditions permit wine tasting only. Therefore, the use cannot become an eating and drinking establishment, bar or tavern without the approval of a new Use Permit. Staff believes that the city would be adequately protected from future use of the on -site beer and wine license. The off -site alcohol sales use is more difficult to regulate. The only thing that distinguishes the applicant's proposed use and regular liquor store is product quality and the reputation of the applicant. A Use Permit does not vest in an individual, and product quality is not something the City has regulated in the past. Staff does not recommend initiating a product quality condition in this case as the regulation alcohol of sales is within the jurisdiction of the Alcoholic Beverage Control Board. The Planning Commission should consider this permit as authorizing what it could become and that is typical liquor store. Staff has included a provision in the conditions of approval which requires that the retail use must conduct the accessory wine tasting use. Separate operation of the uses would require prior approval by the Planning Commission of an amendment to the Use Permit. Staff has also added a condition that the sales of distilled spirits shall not exceed 15% of transactions. Mandating these operational characteristics further limits the use to the applicant's proposal and makes re -use of the alcohol license for a typical liqour store. Environmental Compliance (California Environmental Quality Act). It has been determined that the project is categorically exempt under Class 1 (Existing Facilities). This exemption permits the continued operation and minor alteration of existing facilities with negligible or no expansion of use. Staff believes that the proposed project is eligible for this consideration. Recommendations Section 20.91.050 of the Newport Beach Municipal Code provides that in order to grant any use permit, the Planning Commission shall find that the establishment, maintenance or operation of the use or building applied for will not, under the circumstances of the particular case, be detrimental to the health, safety, peace, morals, comfort, and general welfare of persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City. Staff believes that the facts in this case can support a finding that the proposed alcohol- related use would be detrimental to the area. The public convenience or necessity might not be served by the new licenses allowing retail sales of alcoholic beverage products due to the number of alcohol - related arrests and the over - concentration of alcoholic beverage outlets in the area. PA 2001 -025 (UP2001 -005) April 5, 2001 Page 9 5 The Planning Commission could also find that typical issues associated with alcohol sales and consumption can be adequately addressed through conditions on the operation through the Use Permit. The findings and conditions of approval proposed are designed to provide the highest level of protection for the city by requiring the nature of the operation remain substantially similar to the applicant's request. Submitted by: PATRICIA L. TEMPLE Planning Director Exhibits Prepared by: JAMES W. CAMPBELL Senior Planner 1. Project description and justification 2. Parking inventory for Lido Marina Village 3. Map of police reporting districts and census tracts 4. Findings and conditions of approval 5. Findings for denial 6. Floor plans \\MI$ I \SYS\ USERS\ PLMSHARED \PA'S\PA2001 -025\UP2001 -005 ryt.doc PA 200"25 "2001 -005) Apr115, 2001 Page 10 55 EXHIBIT NO.4 FINDINGS AND CONDITIONS OF APPROVAL FOR PA2001- 025(UP2001 -005) Findings: The Land Use Element of the General Plan designates the site for "Retail and Service Commercial' use. Retail sales of alcoholic beverages and accessory wine tasting and wine educational seminars is permitted use within this commercial designation. The structure that the proposed use will occupy is legal, nonconforming with respects to the maximum floor area ratio. The proposed project does not increase the gross floor area of the building. Therefore, the proposed project is consistent with the General Plan Land Use Element and Local Coastal Program. 2. The project has been reviewed, and it has been determined that it is categorically exempt under Class 1 (Existing Facilities) requirements of the California Environmental Quality Act as it permits the continued operation and minor alteration of existing facilities with negligible or no expansion of use. The proposed project is consistent with the purpose and intent of Chapter 20.89 of the Zoning Code (Alcoholic Beverage Outlets) and will not, under the circumstances of the case, be detrimental to the health, safety, peace, morals, comfort and general welfare of persons residing or working in the neighborhood or be detrimental or injurious to property or improvements in the neighborhood or the general welfare of the City and is consistent with the legislative intent of Title 20 of this Code for the following reasons: a. The primary and principal fimction of the proposed alcoholic beverage outlet is as a retail establishment for the sale of general alcoholic beverages for off -site consumption. On -site consumption of beer and wine is limited to wine tasting and shall be accessory and subordinate to the principal retail use. b. The primary retail use requires accessory wine tasting and wine education seminars. C. The accessory wine tasting may not be converted or otherwise become a restaurant bar, tavern, cocktail lounge, night club. d. The hours of operation of the principal and accessory use is sufficiently restricted to prevent negative effects of alcohol sales and service. e. Conditions of approval have been included which should prevent problems associated with the sale and service of alcoholic beverages. f. Off -site parking is available for the use within the Lido Marina Village parking garage and the site is not authorized as an eating or drinking establishment as defined by the Zoning Code which could generate increased parking demand. Egg. No live entertainment is permitted and a special events permit is required for any event outside the normal operating characteristics of the proposed alcoholic beverage outlet. 5Q 4. The waiver of 21 parking spaces in this case will not, under the circumstances of the case, be detrimental to the health, safety, peace, morals, comfort and general welfare of persons residing or working in the neighborhood or be detrimental or injurious to property or improvements in the neighborhood or the general welfare of the City and is consistent with the legislative intent of Title 20 of this Code for the following reasons: a. The project includes a parking management plan that provides 22 parking spaces in the Lido Marina Village parking garage at all time the use is open for business. b. The project parking management plan includes the use of valet parking for in conjunction with the Lido Marina Village parking garage when the proposed educational seminars will occur. C. The project is not authorized as an eating or drinking establishment as defined by the Zoning Code which could generate increased parking demand. Conditions: 1. The alcoholic beverage outlet is hereby defined as a retail establishment for the sale of general alcoholic beverages for off -site consumption as the primary and principal use of the project site. On -site consumption of beer and wine shall be limited to wine tasting and shall be accessory and subordinate to the principal retail use. The retail use is prohibited from operation without the accessory wine tasting use. The interior area authorized for on -site consumption of beer and wine in conjunction with a Type 42 alcohol license shall be limited to 1,263 sq. ft. as delineated on the approved floor plans as "Unit B." The interior area authorized for the retail sales for general alcoholic beverages for off -site consumption in conjunction with a Type 21 alcohol license shall be limited to 1,328 sq. ft. as delineated on the approved floor plans as "Unit A." The development shall be in compliance with the approved floor plans dated April 5, 2001. Substantial changes to the floor plans shall require prior approval by the Planning Commission. Any increase in area of either Unit A or Unit B shall be seemed substantial for the purposes of requiring review by the Planning Commission. The hours of operation shall be limited to 10:OOAM to 7:OOPM daily for the retail portion of the project and 1:OOPM to 11:OOPM daily for the wine tasting and wine educational activities. Organized educational seminars shall not be conducted more than 3 days per week and wine tasting, open to the general public may occur, any day during authorized hours. 4. The service for on -site consumption of beer and wine of shall be restricted to the interior of Unit A as identified in Condition No. 2, unless approved by the Planning Commission, Police Department and the California Board of Alcoholic Beverage Control. 5. Approval does not permit the premises to operate as an eating and drinking establishment, restaurant, bar, tavern, cocktail lounge or night club as defined by the Municipal Code, unless the Planning Commission first approves a Use Permit. 6. The sale of distilled spirits shall not exceed 15% of gross receipts of all off -site alcohol sales. The applicant or operator shall maintain adequate records to determine compliance with this condition and shall provide the city said records when requested. 61 Alcoholic beverage sales from drive -up or walk -up service windows shall be prohibited. 8. The alcoholic beverage outlet operator shall take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks and areas surrounding the alcoholic beverage outlet and adjacent properties during business hours, if directly related to the patrons of the subject alcoholic beverage outlet. If the operator fails to discourage or correct nuisances, the Planning Commission may review, modify or revoke this use permit in accordance with Chapter 20.96 of the Zoning Code. 9. The exterior of the alcoholic beverage outlet 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. 10. 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. To qualify to meet the requirements of this section a 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 these conditions within 180 days of the effective date of this Use Permit. 11. Records of each owner's, manager's and employee's successful completion of the required certified training program shall be maintained on the premises and shall be presented upon request by a representative of the City of Newport Beach. 12. Loitering, open container, and other signs specified by the Alcoholic Beverage Control Act shall be posted as required by the ABC. 13. This Use Permit for an alcoholic beverage outlet granted in accordance with the terms of this chapter (Chapter 20.89 of the Newport Beach Municipal Code) shall expire within 12 months from the date of approval unless a license has been issued or transferred by the California State Department of Alcoholic Beverage Control prior to the expiration date. 14. A special events permit is required for any event or promotional activity outside the normal operational characteristics of this 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. 15. This use permit may be reviewed, modified or revoked by the Planning Commission or 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. 16. The applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this permit. 17. Should this business or either alcohol license be sold or otherwise come under different ownership or control, any future owners, operators or assignees shall be notified of the 5'� conditions of this approval by either the current owner /operator. Future owners, operators or assignees shall 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, restrictions and conditions of approval of this Use Permit. 18. The owner /operator of the proposed use shall enter into an agreement to provide and maintain a minimum of 21 parking spaces within the Lido Marina Village Parking garage to be accessible at all times during the operation of the use. 19. The applicant or operator of the facility shall provide valet attendant service for the use in conjunction with the Lido Marina Village parking garage. The applicant or operator shall prepare a valet operated parking plan to be reviewed and approved by the Public Works Department prior to the commencement of the use. 20. Delivery vehicles shall not park within the public right -of -way of Via Lido and Via Oporto. 21. Trash receptacles for patrons shall be conveniently located both inside and outside the proposed facility. 22. Trash generated by the business be screened from view from adjoining properties except when placed for pick -ups by refuse collection agencies. 23. No outdoor loudspeaker or paging system shall be permitted in conjunction with the operation. 24. No live entertainment or dancing shall be permitted in conjunction with the permitted use. 25. All signs shall conform to the provisions of Chapter 20.67 of the Municipal Code. 26. No temporary "sandwich" signs or similar temporary signs shall be permitted, either on -site or off -site, to advertise the restaurant. 27. The project shall comply with State Disabled Access requirements. 28. A handicapped assessable public restrooms are required. The restrooms must be in compliance with the Uniform Plumbing Code and all applicable Uniform Building Code requirements. 29. Health Department approval is required before issuance of a building permit. 30. Where grease may be introduced into the drainage systems, grease interceptors shall be installed on all fixtures as required by the Uniform Plumbing Code, unless otherwise approved by the Building Department and the Utilities Department. 31. The facility and related off - street parking shall conform to the requirements of the Uniform Building Code. 32. Upon evidence that noise generated by the project exceeds the noise standards established by Chapter 20.26 (Community Noise Control) of the Municipal Code, the Planning 5 C Director may require that the applicant or successor retain a qualified engineer specializing in noise /acoustics to monitor the sound generated by the restaurant facility to develop a set of corrective measures necessary in order to insure compliance. 33. The operator facility shall be responsible for the control of noise generated by the subject facility. The noise generated by the proposed use shall comply with the provisions of Chapter 10.26 of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher: �16 Between the hours of 7:OOAM and,10:00PM Between the hours of 7:OOAM and 10:00PM Location Interior Exterior Interior Exterior Residential Property 45dBA 55dBA 40dBA 50dBA Residential Property located within 100 feet of a commercial property 45dBA 60dBA 45dBA 5OdBA Mixed Use Property 45dBA 60dBA 45dBA 50dBA Commercial Property N/A 65dBA N/A 60dBA �16 EXHim No. 5 FINDINGS FOR DENIAL PA2001- 025(UP2001 -005) FINDINGS: The project site is located within Newport Beach Police Reporting District (RD) No. 15 and the proposed project is a new alcoholic beverage outlet. The outlet includes a Type 41 license for on -site consumption of beer & wine not in conjunction with a bona fide restaurant and a Type 21 license for the retail sale of general alcoholic beverages for off - site consumption. The granting of Use Permit No. 2001 -005 does not serve the public's convenience or necessity due to the following factors: a. Within RD No. 15, there were 5,774 crimes reported to the Police Department in 1998, of which 3,247 crimes were Part Two Crimes that include alcohol related arrests. The crime rate for this RD is 11,262.2 crimes per 100,000 people and the crime rate for entire city is 3510.1 crimes per 100,000 people. The crime rate within the reporting district exceeds the citywide average by 320 %. Due to the strong correlation between higher crime rates and availability of alcohol, upgrading the existing alcoholic beverage service in this area may contribute to increased crime. b. The proposed project is located in Census Tract 635.00, which has a ratio of alcoholic beverage licenses to population that is above the average ratio of Orange County. Within the reporting district, there currently are 59 alcoholic beverage outlets which establishes a ratio of 1 liquor license per 104 persons. This ratio is significantly higher than the average ratio of Orange County, which is 1 license per 893 persons. This constitutes an `undue concentration" of licenses under the provisions of Section 23958.4 of the California Business and Professions Code. C. There were 839 arrests in Reporting District No. 15 during 1999 as compared to the 3,515 arrests citywide. Of the arrests made in Reporting District No. 15, 50.3% were alcohol - related (422 total alcohol related arrests), while 34% of the arrests citywide were alcohol - related. (1,194 total alcohol related arrests). d. The proposed parking management plan using the Lido Marina Village parking garage is insufficient to meet the parking demands of the proposed project. 2. Due to the concentration of alcoholic beverage outlets, higher than average crime rates and their impact on the Lido Village area, and because the public convenience or necessity would not be served, the proposed project would be detrimental to the health, safety, peace, morals, comfort, and general welfare of persons residing or working in the neighborhood of such proposed use and would be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City. kok 3. The proposed use can generate a parking demand as high as 21 parking spaces when all aspects of the proposed use occur simultaneously and the project site has no on -site parking. The proposed parking management plan using a combination of self parking and valet parking through the use of a private off -site parking agreement within the Lido Marina Village does not provide necessary long term parking. In �- ,afx'!bgT CITY OF NEWPORT BEACH o ° PLANNING DEPARTMENT I 3300 NEWPORT BOULEVARD q�iroaN,. NEWPORT BEACH, CA 92658 (949) 644 -3200; FAX (949) 644 -3250 Project: Purpose of Application: Discussion Hearing Date: Agenda Item No.: Staff Person: Period: SUPPLEMTAL REPORT TO THE PLANNING COMMISSION 5, James Campbell (949) 644 -3210 14 days The Wine Merchant (Dennis & Chris Overstreet, applicant) 3400 Via Lido A Use Permit for a new alcoholic beverage license (Type 21, off -sale general) in conjunction with a fine wine retail establishment. The applicant also proposes to conduct periodic on -site wine tasting seminars in the evenings for approximately 30 people with a Type 42 alcohol license. The project requires the consideration of a parking waiver. Staff inadvertently provided 1998 crime statistics for this item when 1999 statistics are available. The following discussion should be referenced for the analysis of the request pursuant to the Alcoholic Beverage Outlet (ABO) Ordinance and the analysis contained in the previous staff report discarded. The findings for project denial also have been corrected to reflect the revised information below. Staff also attached the incorrect Lido Village parking inventory as Exhibit No.2 to the original report. The latest inventory, attached as Exhibit No. 2 of this report, does not change the fact that, on paper, the parking structure operates at a deficit during the daytime and a surplus during the night. The applicant's educational seminars generally occur in the evenings during the week. Occasional sessions occur on weekends but generally only during the day. Please note that the actual parking demand or use of the available spaces is not the same thing as the required parking which is reflected in the inventory. Parking availability has only been a problem during unusual events such as the Christmas Boat parades, although the cost for parking in the structure would tend to reduce demand for parking leading some patrons to consider "poaching" free parking in nearby parking lots. Alcoholic Beverage Ordinance The use involves the sale and consumption of alcohol, and therefore, a Use Permit is required that is subject to the provisions of the Alcoholic Beverage Outlet ordinance as set forth in Chapter 20.89 of the Municipal Code. On June 8, 1998, the City Council adopted Chapter 20.89 of the Municipal Code, the Alcoholic Beverage Outlet (ABO) Ordinance. The purpose of the ordinance is to preserve a healthy environment for residents and businesses by establishing a set of consistent standards for the safe operation of alcoholic beverage retail outlets. Chapter 20.89 is intended to prevent alcohol - related problems. The chapter provides a set of additional tools to help reduce the costly and k�) harmful effects of irresponsible alcohol sales and consumption on local businesses, residents, law enforcement, and various other resources. The ABO Ordinance requires a Use Permit for all new alcoholic beverage outlets and revisions to existing licenses and requires that the Planning Commission consider the following factors when reviewing a request for a use permit: 1. Whether the use serves public convenience or necessity. 2. The crime rate in the reporting district and adjacent reporting districts as compared to other areas in the City. 3. The number of alcohol licenses per capita in the reporting district and in adjacent reporting districts as compared to the county -wide average. 4. The numbers of alcohol - related calls for service, crimes or arrests in the reporting district and in adjacent reporting districts. 5. The proximity of the alcoholic beverage outlet to residential districts, day care centers, park and recreation facilities, places of religious assembly, and schools. The following charts provide 1999 data related to factors 2, 3 and 4. Maps showing the census tracts and Police Reporting districts with the project site highlighted are attached to the Planning Commission staff report dated April 5, 2001. Public Convenience or Necessity. City Council Policy K -7 requires that the Police Department make a public convenience and necessity finding as the project site is located within an over concentrated and higher than average crime area. The policy also provides criteria for situations when the public convenience or necessity will not be served. The policy states that the public convenience or necessity will not be served with the approval of a new, upgraded or transferred license for a bar within an over concentrated or high crime area. Although the project includes a 5 -seat wine tasting bar, staff believes that the proposed project is primarily retail oriented with the use of the bar accessory. With this determination, the portion of Policy K -7 that prohibits a new bar in an over concentrated or high crime area does not apply. The Planning Commission also must make a finding that the project serves the public's convenience and necessity if the Use Permit is to be approved. Currently, there are 66 establishments providing alcoholic beverage service in the area (see table below). It can be argued that there are an abundance of establishments providing alcoholic beverage service in this area and that the public convenience or necessity would not be served by permitting another operation. The proposed operation is not a typical alcoholic beverage outlet and very few similar operations exist. The propose operation provides a benefit to the public as it is a fine wine establishment providing wine education sessions and the City does not presently have such an operation in the area. Each of these views must be balanced by the other four factors to be evaluated by the Planning Commission for this use permit. Based upon all the information assessed in these factors, the Planning Commission may determine whether this approval is necessary to serve the public convenience or necessity. PA 2001 -025 (UP2001 -005) Supplemental April 5, 2001 Page 2 2. Crime Rate. The following table shows the crime statistics for 1999. (1) "Part I Crimes" are homicide, forcible rape, rubbery, aggravated assault, burglary, larceny -theft, auto theft, and arson. All other crimes are "Part 2 crimes." (2) The "Crime Rate" the number of crimes per 100,000 people. (3) Crime rates based upon crimes during 1999 compiled by NBPD and 1999 population projection from the Population Research Unit of the California State Department of Finance. (4) Crime rates based upon crimes compiled by NBPD and 1990 Census population for the reporting districts prepared by the Newport Beach Planning Department. (5) Newport Beach Police indicate that the total arrests within each Reporting District are not available at this time due to a mid- year reporting software change and software problems. There were 6,041 crimes reported to the Police Department in 1999, of which 2,623 were Part One Crimes. The remaining 3,418 crimes were Part Two Crimes. Crime statistics that exceed the citywide average by 20% are considered significant pursuant to City Council Policy K -7. The Part 1 crime rate for RD 15 is 210% above the citywide Part 1 crime rate. The Part 2 crime rate is 643% above the citywide Part 2 crime rate. Additionally, the Part 1 crime rate decreased from 1998 to 1999 by 34.1% and the Part 2 crime rate increased from 1998 to 1999 by 22.1 %. Both two adjacent reporting districts analyzed experienced a decrease in the Part 1 crime rate (RD 13 — 57.3 %, RD 16 — 20.4 %). The Part 2 crime rate fluctuated in the two adjacent reporting districts with RD 13 decreasing by 6.3% and RD 16 increasing by 18.3 %. It should be noted that the crime rate within the three reporting districts studied was derived using the 1999 crime figures and 1990 Census population counts. The population has probably increased since 1990, which could result in a modest overstatement of the crime rate. There is no other reliable population estimates for each reporting district as the police reporting districts do not correspond to conventional Census geography. When the new Census numbers are released at the block level within the next few years, more reliable population numbers for a reporting district will be available. The Police Department states that the project must be considered in light of the larger issue of the intensification of alcohol and related uses on the Balboa Peninsula, especially in the Lido area. This area has experienced limited resident complaints regarding alcoholic beverage outlets and problems historically have been created by bars and nightclubs. The Police Department believes that alcoholic beverage outlets are a contributing factor to a disproportionate level of crime in the area and this fact continues to have a significant impact on their workload and on PA 2001 -025 (UP2001 -005) Supplemental April 5, 2001 Page 3 65 Subject Reporting Adjacent Reporting Adjacent Reporting City-Wide District No. 15 District No. 13 District No. 16 Crimes (1) Part I: 2,623 213 65 113 Part 2: 3,418 840 176 301 Total: 6,041 1,053 241 414 Crime Rate: (2) Part 1: 3,544.59 (3) 7,426.8(4) 2,601(4) 4,431.4(4) Part2: 4,618.92 3 29 288.7 4 8 174.6(4) 11 803.9 4 Arrests Total Arrests: 3,290 Unknown (5) Unknown (5) Unknown (5) DUI/Drunk arrests: 1,667 624 46 249 DUI/Drunk %: 50.66% 37.4 ° /a of citywide 2.75% of citywide 14.9% of citywide DUI/Drunk arrests DUI/Dmnk arrests DUUDmnk arrests (1) "Part I Crimes" are homicide, forcible rape, rubbery, aggravated assault, burglary, larceny -theft, auto theft, and arson. All other crimes are "Part 2 crimes." (2) The "Crime Rate" the number of crimes per 100,000 people. (3) Crime rates based upon crimes during 1999 compiled by NBPD and 1999 population projection from the Population Research Unit of the California State Department of Finance. (4) Crime rates based upon crimes compiled by NBPD and 1990 Census population for the reporting districts prepared by the Newport Beach Planning Department. (5) Newport Beach Police indicate that the total arrests within each Reporting District are not available at this time due to a mid- year reporting software change and software problems. There were 6,041 crimes reported to the Police Department in 1999, of which 2,623 were Part One Crimes. The remaining 3,418 crimes were Part Two Crimes. Crime statistics that exceed the citywide average by 20% are considered significant pursuant to City Council Policy K -7. The Part 1 crime rate for RD 15 is 210% above the citywide Part 1 crime rate. The Part 2 crime rate is 643% above the citywide Part 2 crime rate. Additionally, the Part 1 crime rate decreased from 1998 to 1999 by 34.1% and the Part 2 crime rate increased from 1998 to 1999 by 22.1 %. Both two adjacent reporting districts analyzed experienced a decrease in the Part 1 crime rate (RD 13 — 57.3 %, RD 16 — 20.4 %). The Part 2 crime rate fluctuated in the two adjacent reporting districts with RD 13 decreasing by 6.3% and RD 16 increasing by 18.3 %. It should be noted that the crime rate within the three reporting districts studied was derived using the 1999 crime figures and 1990 Census population counts. The population has probably increased since 1990, which could result in a modest overstatement of the crime rate. There is no other reliable population estimates for each reporting district as the police reporting districts do not correspond to conventional Census geography. When the new Census numbers are released at the block level within the next few years, more reliable population numbers for a reporting district will be available. The Police Department states that the project must be considered in light of the larger issue of the intensification of alcohol and related uses on the Balboa Peninsula, especially in the Lido area. This area has experienced limited resident complaints regarding alcoholic beverage outlets and problems historically have been created by bars and nightclubs. The Police Department believes that alcoholic beverage outlets are a contributing factor to a disproportionate level of crime in the area and this fact continues to have a significant impact on their workload and on PA 2001 -025 (UP2001 -005) Supplemental April 5, 2001 Page 3 65 the quality of life in the community. However, the Police Department does not object to the proposed project as described and regulated. Alcohol License Over Concentration. The following table shows the concentration of retail alcohol licenses for the area of the project. A map of the Census Tracts is attached as Exhibit No. 4. (1) 1990 official Census (required source pursuant to Section 23958.4 of the Califomia Business and Professions Code). (2) 1999 population estimate fmm Population Research Unit of the California State Department of Finance (required source pursuant to Section 23958.4 of the Califomia Business and Professions Code). (3) Total licenses known to the Newport Beach Police Department at this time. Census Tract 635.00 currently has a ratio of liquor licenses to population that exceeds the average ratio of Orange County. Within this Census Tract which encompasses the project site, there currently are 66 alcoholic beverage outlets, which establishes a ratio of 1 liquor license per 93 persons. This ratio is significantly higher than the average ratio of Orange County, which is 1 license per 590 persons. This is due to the fact that the area is predominantly commercial and has a high number of eating and drinking establishments and a relatively low population. The number of alcoholic beverage licenses within Census Tract 635.00 constitutes an "undue concentration" of licenses under the provisions of Section 23958.4 of the California Business and Professions Code. Therefore, the ABC Board is required to deny the application for the license unless it is determined that public convenience or necessity would not be served by its issuance. The City's finding of public convenience or necessity is advisory to the ABC Board. The Police Department is especially concerned about the concentration of ABC licenses within this Census Tract and on the Balboa Peninsula in general, but also indicates that the proposed use as described and regulated is not expected to exacerbate alcohol related problems in the area. 4. Alcohol - Related Calls for Service, Crimes or Arrests. The term "alcohol- related calls for service" is a misnomer, as a call for service is just a call, and no determination of whether it is alcohol- related or not is done by police dispatch. If an incident culminates in the preparation of a report or an arrest is made, a determination of whether or not the incident is alcohol - related is made by the officer and recorded. The Police Department updated their reporting system in September of 1999 and is presently experiencing a data retrieval problem with alcohol - related incidents. This problem will be resolved in the near future by the software vendor. The PD however has provided information on alcohol - related arrests in two categories; driving under influence (DUI) and drunk in public or "plain drunk." Referring to the 1999 crime statistics table above, there were 3,290 total arrests within the City of Newport Beach, of which 1,667 were either driving under the influence or plain drunk in public (50.66 %). In Reporting District (RD) No. 15, there were 624 alcohol arrests during 1999, which accounts for 37.43% of the city's DUI and drunk in public arrests. The Police Department indicates that total arrests within an individual reporting district is not available at this time due to the software problem, and therefore, the percentage of alcohol - related arrests PA 2001 -025 (UP2001 -005) Supplemental April 5, 2001 Page 4 Census Tract 635.0 Orange County Population 6,128(l) 2,787,593 (2) ABC Licenses (3) 66 4,721 Concentration I license per 93 persons I license per 590 persons (1) 1990 official Census (required source pursuant to Section 23958.4 of the Califomia Business and Professions Code). (2) 1999 population estimate fmm Population Research Unit of the California State Department of Finance (required source pursuant to Section 23958.4 of the Califomia Business and Professions Code). (3) Total licenses known to the Newport Beach Police Department at this time. Census Tract 635.00 currently has a ratio of liquor licenses to population that exceeds the average ratio of Orange County. Within this Census Tract which encompasses the project site, there currently are 66 alcoholic beverage outlets, which establishes a ratio of 1 liquor license per 93 persons. This ratio is significantly higher than the average ratio of Orange County, which is 1 license per 590 persons. This is due to the fact that the area is predominantly commercial and has a high number of eating and drinking establishments and a relatively low population. The number of alcoholic beverage licenses within Census Tract 635.00 constitutes an "undue concentration" of licenses under the provisions of Section 23958.4 of the California Business and Professions Code. Therefore, the ABC Board is required to deny the application for the license unless it is determined that public convenience or necessity would not be served by its issuance. The City's finding of public convenience or necessity is advisory to the ABC Board. The Police Department is especially concerned about the concentration of ABC licenses within this Census Tract and on the Balboa Peninsula in general, but also indicates that the proposed use as described and regulated is not expected to exacerbate alcohol related problems in the area. 4. Alcohol - Related Calls for Service, Crimes or Arrests. The term "alcohol- related calls for service" is a misnomer, as a call for service is just a call, and no determination of whether it is alcohol- related or not is done by police dispatch. If an incident culminates in the preparation of a report or an arrest is made, a determination of whether or not the incident is alcohol - related is made by the officer and recorded. The Police Department updated their reporting system in September of 1999 and is presently experiencing a data retrieval problem with alcohol - related incidents. This problem will be resolved in the near future by the software vendor. The PD however has provided information on alcohol - related arrests in two categories; driving under influence (DUI) and drunk in public or "plain drunk." Referring to the 1999 crime statistics table above, there were 3,290 total arrests within the City of Newport Beach, of which 1,667 were either driving under the influence or plain drunk in public (50.66 %). In Reporting District (RD) No. 15, there were 624 alcohol arrests during 1999, which accounts for 37.43% of the city's DUI and drunk in public arrests. The Police Department indicates that total arrests within an individual reporting district is not available at this time due to the software problem, and therefore, the percentage of alcohol - related arrests PA 2001 -025 (UP2001 -005) Supplemental April 5, 2001 Page 4 within the AD is not available. During 1998, the total number of alcohol- related arrests, which is a larger category of offenses, than DUI and drunk in public arrest was 422. The Police Department does not attribute the entire 47.8% increase between 1998 and 1999 to social factors alone, but also to better record management. The total number DUI and drunk in public arrests cited above does not include other crimes such as homicides, assault, disorderly conduct etc. that were determined to be alcohol - related due to the software issues. Lastly, in this area, with a high number of alcoholic beverage outlets, it is difficult to determine which establishment is responsible for public nuisance behavior in public areas. At public hearings for other projects in the Cannery Village and McFadden Square area, residents and business operators have reported a pattern of public nuisance behavior. Generally, this behavior is conducted by patrons of area restaurants and bars as they arrive, depart, or travel between establishments. Public nuisances related to alcohol service has been a historic problem in the Lido Marina Village due to various nightclubs, but all the establishments of this type are no longer in operation. However, in this area, with a high number of alcoholic beverage outlets, it is difficult to determine which establishment is responsible for public nuisance behavior in public areas. Planning and Police Department staff does not believe that the proposed establishment as described and conditioned will contribute to any alcohol- related problems in the area. The ABO Ordinance requires that the applicant take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, alleys and other areas during business hours. 5. Adjacent Uses. There are no day care centers, schools, or park and recreation facilities in the vicinity of the project site. There are few residences in the general vicinity of the project site, but none that directly abut the project site. The site is surrounded by commercial uses and staff does not believe that the proposed use retail sales of alcoholic beverages and accessory uses will prove detrimental to the surrounding commercial uses. Conditions of approval can be applied to mitigate potential negative effects this project might introduce. The Police Department has no preventative design recommendations for this operation. One remaining issue related to this request is the possibility that future operators might change the operational characteristics of the use that could generate alcohol- related issues. A future operator might not have the same objectives and principles that the applicant has. Use Permits run with the land and not with an individual. As long as a future operator abides by the parameters of the Use Permit, continued operation is permitted. Major changes in the operational characteristics will require Planning Commission review of a new Use Permit. Staff has structured this Use Permit to permit the on -site consumption of beer and wine as an accessory use to the retail establishment, and the conditions permit wine tasting only. Therefore, the use cannot become an eating and drinking establishment, bar or tavern without the approval of a new Use Permit. Staff believes that the city would be adequately protected from future use of the on -site beer and wine license. The off -site alcohol sales use is more difficult to regulate. The only thing that distinguishes the applicant's proposed use and a regular liquor store is product quality and the reputation of the applicant. A Use Permit does not vest in an individual, and product quality is not something the City has regulated in the past. Staff does not recommend initiating a product quality condition in this case as the regulation alcohol of sales is within the jurisdiction of the Alcoholic Beverage PA 2001 -025 (UP2001 -005) Supplemental April 5, 2001 Page 5 Control Board. The Planning Commission should consider this permit as authorizing what it could become, and that is a typical liquor store. Staff has included a provision in the conditions of approval, which requires that the retail use must conduct the accessory wine tasting use. Separate operation of the uses would require prior approval by the Planning Commission of an amendment to the Use Permit. Staff has also added a condition that the sales of distilled spirits shall not exceed 15% of transactions. Mandating these operational characteristics further limits the use to the applicant's proposal and makes re -use of the alcohol license for a typical liquor store. Recommendation As noted in the original staff report for this item, staff believes that there are facts to support either project approval or denial. Staff also believes that the project as described and regulated pursuant to the condition of approval will not be detrimental to the area, and therefore, staff recommends approval subject to the findings and conditions contained in the previous staff report. Submitted by: Sharon Z. Wood Assistant City Manager Exhibits Revised findings for project denial Prepared by: JAMES CAMPBELL Senior Planner UP2001 -005 supplemental report.doc PA 2001 -025 (UP2001 -005) Supplemental April 5, 2001 Page 6 1 _ EXHIBIT NO.1 FINDINGS FOR DENIAL PA2001- 025(UP2001 -005) FINDINGS: 1. The project site is located within Newport Beach Police Reporting District (RD) No. 15 and the proposed project is a new alcoholic beverage outlet. The outlet includes a Type 42 license for on -site consumption of beer & wine not in conjunction with a bona fide restaurant and a Type 21 license for the retail sale of general alcoholic beverages for off- site consumption. The granting of Use Permit No. 2001 -005 does not serve the public's convenience or necessity due to the following factors: a. The project site is located within Newport Beach Police Reporting District (RD) No. 15 and within Census Tract 635.00. b. Within RD No. 15, there were 6,041 crimes reported to the Police Department in 1999, of which 2,623 crimes were Part 1 crimes and 3,418 crimes were Part 2 Crimes that include alcohol - related arrests. The Part 1 crime rate for this RD is 7,426.8 crimes per 100,000 people and the crime rate for entire city is 3544.6 crimes per 100,000 people. The Part 2 crime rate for this RD is 29,288.7 crimes per 100,000 people and the Part 2 crime rate for entire city is 4,618.9 crimes per 100,000 people. The Part 1 crime rate within the reporting district exceeds the citywide Part 1 crime rate by 210 %. The Part 2 crime rate within the reporting district exceeds the citywide Part 2 crime rate by 643% Due to the strong correlation between higher crime rates and availability of alcohol, upgrading the existing alcoholic beverage service in this area may contribute to increased crime. C. Census Tract 635.00 has a ratio of alcoholic beverage licenses to population that is above the average ratio of Orange County. There are currently 66 alcoholic beverage outlets within this census tract which establishes a ratio of 1 liquor license per 99 persons. This ratio is significantly higher than the average ratio of Orange County, which is 1 license per 590 persons. This constitutes an "undue concentration" of licenses under the provisions of Section 23958.4 of the California Business and Professions Code. d. There were 624 alcohol- related arrests in Reporting District No. 15 during 1999. This represents 18.96% of the total arrests citywide and 37.43% of the alcohol - related arrests citywide. Comparing the number of 1998 alcohol- relates arrests and calls for service to 1999 alcohol - related arrests, there was an increase in activity of 202 arrests. The volume and increase in alcohol- related arrests is disproportionate and continues to have a significant impact on the quality of life in the community and Police Department resources. Due to the strong correlation between higher crime rates and availability of alcohol, the requested new licenses could contribute to increased crime. e. The proposed parking management plan using the Lido Marina Village parking garage is insufficient to meet the parking demands of the proposed project. 6 2. Due to the concentration of alcoholic beverage outlets, higher than average crime rates and their impact on the Lido Village area, and because the public convenience or necessity would therefore not be served, the proposed project would be detrimental to the health, safety, peace, morals, comfort, and general welfare of persons residing or working in the neighborhood of such proposed use and would be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City. 3. The proposed use can generate a parking demand as high as 21 parking spaces when all aspects of the proposed use occur simultaneously and the project site has no on -site parking. The proposed parking management plan using a combination of self - parking and valet parking through the use of a private off -site parking agreement within the Lido Marina Village does not provide necessary long term parking. 16