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HomeMy WebLinkAboutExhibit 4ExhiAff bit No. 4 11 4 ' 0 • City of Newport Beach Planning Commission Minutes November 7, 2002 Condition 1 - '.....plot plan and floor plan dated September 16, 2002. ih 3 - '....adequate access and exifing must be provided under the Bu Code.' The last sentence read, 'A grease interceptor of adequate siz ay be required in association with food preparation activities pursuant t Building Code.' Condition 5 - the two 6: s changed to 7:00 p.m. Ayes: Toerge, Agajanian, McDaniel, Kiser G ord, Selich, Tucker Noes: None The Planning Commission then heard Item 4 at the request of INDEX SUBJECT: Overstreet's Wine Merchant & Wine Bar (PA2002 -167) I Item 3 3400 Via Lido PA2002 -167 Request for an amendment to a previously- approved use permit to include the sale Approved of distilled spirits (Type 47: beer, wine & spirits) for on -site consumption, to permit live entertainment, and to expand the hours of operation from 11:00 pm to 12:00 midnight on Fridays and Saturdays at an existing retail Alcoholic Beverage Outlet located in Lido Village. Referencing the 3rd page of the staff report, Chairperson Kiser asked about the menu and staff's belief that the food service is supportive of the retail business and not classified as an eating and drinking establishment. Has staff concluded this is still a retail establishment and not changed into an eating and drinking establishment? Mr. Campbell answered, yes. The menu is fairly extensive but we still believe these offerings are supportive of the retail use and we consider it a retail operation. At Commission inquiry, he added that there has been no check of the receipt records to determine compliance with the condition that the sale of distilled spirits shall not exceed 15 percent of gross receipts of all off site alcohol sales since the opening of the establishment, This type of check would be done if staff felt that the operation was in non - compliance. Chairperson Kiser noted that with this very extensive menu, perhaps it would be appropriate to making those checks. Commissioner Selich asked how you could consider a five- course $65 dinner with five and a half glasses of wine a retail sale? That seems to be stretching it. Ms. Temple answered that staff went through the menu and even though they are very complex and elaborate, they serve relatively small portions and seem to be coordinated with a function to actually taste wine. In staff's final evaluation, if you look at the percentage of this operation's business, which would be attributable to retail sales, even in light of this more elaborate food service then 1�) • • City of Newport Beach Planning Commission Minutes November 7, 2002 originally understood, this business does this activity for the purpose of selling retail wines probably in a per case mode. Commissioner Selich asked if this business was sold to someone else, and they decided to emphasize more of the restaurant aspect, how would we be able to control it? In this scenario it is somewhat limited in the total scheme of things. Ms. Temple noted that keeping It under consideration in this fashion, as a retail use Is the safest thing to do because we are not approving a use permit for an eating and drinking establishment. They don't have a vested right to convert it into a restaurant without a new use permit. Commissioner Gifford asked if there was any consideration about giving the Commission this information about the percentages prior to considering this application? I have seen the menus and have heard about the portions being small. I have been there on several occasions and I find that the categorization of the menu, as staff has given, is inconsistent with my observations. Chairperson Kiser noted that there is a concern of the conformance with the existing conditions. Ms. Clauson added for consideration the definition under the use categories of an eating and drinking establishment is businesses with the principal purpose to serve prepared food or beverages for consumption on or off the premises. There is a description of the different kinds of establishments. There is also a provision in that use category for accessory eating and drinking establishments, which are establishments serving as an accessory use in a retail building with the gross floor area of 5,000 square feet or more, provided the establishment has no separate entrance, the hours of operation correspond to those of the principal use. If you have an eating and drinking establishment with the principal purpose, the one way to get out of that of being an eating and drinking establishment is that it qualifies as an accessory use. Commissioner Toerge noted that it was hard for him to read the plans. What is cold kitchen equipment, is there going to be a kitchen built in this new facility? Staff answered that the kitchen is already there and was built in conjunction with the use permit and the building permit issued subsequent to the Use Permit approval last year. Public comment was opened. Dennis and Christine Overstreet, 3400 Via Lido noted: • Referencing page 63 of the staff report, noted that there is a stainless steel refrigerator and convection oven in the kitchen. • Project is educational and retail as well with sampling of unique items, which Is a more sophisticated venue than what would be the norm. • The food is complementary to the wine sampling and creates an INDEX 1I 0 •- City of Newport Beach Planning Commission Minutes November 7, 2002 atmosphere that isn't a restaurant or bar, but an experience of fine wines. • We have made an Investment in this project and have the support of over 200 of our neighbors. • This proposal is a fine upgrade to the Lido Village area. • The menu in the staff report Is quite elaborate. This menu is more than what we want to handle because we have such a tiny kitchen. The menu is evolving. • The wine bar percentage Is lower than the retail. Since we have opened in total the sale of alcoholic beverages for consumption on premises amount is less than 20% of total sales. • The products that we sell average about $35 per item. • These records are available for review. Commissioner McDaniel, referencing the applicant's letter, asked about the need for full on- premise liquor need. Mr. Overstreet answered: • Our business has prime wines and spirits, and coming to our location is an experience. • Being in our business allows people to enjoy the wines and spirits and not everyone wants to have a glass of wine, sometimes they want to have a taste of 25 year old scotch. • It would be nice to be able to offer this choice to our customers. • We currently have an off -sale full liquor license. Commissioner Gifford then read the passage from the Police Department's letter, 'the changes in operational characteristics proposed by the applicant are significant. The existing location does not have a kitchen (there is a 'hot plate' and small refrigerator, etc.)'. Ms. Overstreet answered that she provided the digital pictures of the kitchen and store and mailed them to Susan Seviane of the Police Department. Commissioner Gifford stated that when the applicants first came to the Planning Commission, the proposal was very specific and very definite about a wine bar. It was based on their experience of the Los Angeles store, which had been operated for a number of years. I am puzzled why, if it is part of the normal experience, for a consumer to want to sample some scotch or such, that had never come to your attention before in the years you had operated the wine bar in Los Angeles, which is what I understood you were going to replicate here. Mr. Overstreet answered that our Beverly Hills operation did have the full liquor license. My deep concern when we bought this property and improved it, I did not think the audience here in Newport Beach would be prepared for such a high- ticket sophistication. Since we were residents here, I was reluctant to go for the full alcohol experience. Based upon what some of the stores in the area offered, it didn't seem that the situation for Lafitte Rothschild, etc at $150 per bottle would be a real demand. It didn't seem that for alcoholic beverages there INDEX -,5 • f City of Newport Beach Planning Commission Minutes November 7, 2002 would be a demand for specialty vodkas and high -end scotch and such. Commissioner Gifford noted that the comments were inconsistent with her recollection of the presentation at the first hearing where you spoke about the extreme array of very fine wines and that was your intent to bring them here and you felt there was a market for them. Mr. Overstreet noted that you go into business with very high hopes. Those hopes have been satisfied along the enthusiasm of our clientele to support us in this new venture. Commissioner Gifford noted that in spite of a condition that there would be no live entertainment, you began to have live entertainment. Mrs. Overstreet answered this was done with a permit by the City. Commissioner Gifford asked staff that the live entertainment that the City took action on was this done with a permit? Mr. Campbell answered that when the establishment initially opened there were three weekends during July they were authorized for live entertainment, which is similar to what the applicant is now requesting. There was an instance of an advertisement that went out for live entertainment that would not have been authorized and we were alerted to that fact. The applicant did not conduct that live entertainment. Commissioner Tucker asked what percentage for on site consumption, if we approve of a full liquor license, would you estimate would happen? Wine and beer versus hard liquor? Mr. Overstreet answered that we do not sell beer. Wine versus hard liquor, I would imagine that we are probably looking at the on site sales of 25% if that. It is just a specialty thing that if we have a customer that would like one we could serve a cocktail. Commissioner Tucker asked if we put a condition limiting the on site sale for other than wine or beer not exceed 25%, would that be something you could live with? He was answered, yes. Continuing, Commissioner Tucker noted we do not want this to change Into a bar. I would like to add to condition 5 with a maximum occupancy of 29 people. That way I can be comfortable with the fact that there could be hard liquor served there but if it doesn't exceed 25% of the total liquor sales and only 29 people can occupy the room at one time it will not turn into something that we did not anticipate. Commissioner Gifford asked for clarification that when you say 25% of on -site liquor sales are you speaking about the non -wine alcohol would not be more than 25% of the on site wine sales? Commissioner Tucker replied that you take the total on -site consumption, wine, INDEX • r City of Newport Beach Planning Commission Minutes November 7, 2002 INDEX beer, hard liquor; the hard liquor segment would not exceed 25% of the total of on -sale consumption. Commissioner Gifford noted that the Overstreets are not selling a lot of $15 or $20 bottles of wine and so the grand total of the retail sales allowing for 25% could be quite high. Commissioner Tucker noted that it is what is consumed on site, not what is being carried away. The percentage should be lower because the wine sales will be a higher price number. Maybe that number could be 20 %. Chairperson Kiser noted the following: • How important live entertainment is to the applicant. • Concern about this facility not becoming a nightspot or bar. • Heavy concentration of bars In the area. • Most concerned about the entertainment drawing the wrong crowd. • Business seems to be moving towards becoming a nightclub. The Overstreet replied at Commission inquiry: • Acoustical background is very soothing. Music will increase the ambiance of the facility. • Want the option to have live music although it is very expensive and will not happen all the time. • Expensive to get a permit three weeks in advance every time to book a special act. • We have a few entertainers that we like. • There is a small piano against the kitchen wall off to the side. • Windows are all fixed and cannot be opened. • No drums. • The musician had a small microphone with small amplification. It has to be small because the store is so small. John Alterton spoke in favor of this application as a patron of the Beverly Hills site as well as the store here. The average pour is $10. This is not a package store and they are not serving tall liquors. They serve expensive pours; this is a high -end wine and high -end alcohol that will cost $10 to $15 a drink. You will not be getting people who will get drunk or rowdy. There will not be an increase in the alcohol related incidents; it is not that type of crowd. There is no room for a band. Their main thing is to try to educate people about wines. They have spent a lot of money furnishing this place. Chairperson Kiser noted that what we approve here tonight goes with the property. If this were sold, then we could have another operator with a different agenda and at that point someone could use the conditions and operate the facility in a very different way. The following speakers spoke in support of the application for similar reasons: 11 0 *- City of Newport Beach Planning Commission Minutes November 7, 2002 INDEX John Wortman, no address given Craig Bartow, 110 Via Trieste David Bradburn, 235 Via Ithaca Public comment was closed. Chairperson Kiser noted his overall support of the application due to the nature of the business and the way it is being run. He clarified condition 4 with staff on the sale of distilled spirits for off -site consumption shall not exceed 15 percent of gross receipts of all off -site alcohol sales. Mr. Campbell answered that this is to limit the percentage of distilled spirits to all alcohol sales off site. So this would be In comparison to beer and wine, and limits off site sale. If this license were to be used for some other purpose this condition is disincentive to become more of a liquor store in the future and is proactive. Commissioner Agajanian noted: • The proposed changes that have been made from the original application seem to be moving away from an incidental use. • Supports changes to a number of conditions: put a condition that the seats be limited to 29 in the A2 section; the proposed live entertainment is for 2 -3 nights; no beer; and the amplification of the music is to be low key or eliminated due to the small facility. Chairperson Kiser noted that he agrees with the no drums, no beer, no amplified music, maximum three nights per week on the live entertainment and the maximum occupancy of 29 people in the A2 unit space. Mrs. Overstreet noted that in the conditions, it Is 29 guests and 6 employees because you have to have people to service the customers. The amendment to the use permit is just for the A2 area. There is no seating in the retail space. Chairperson Kiser noted that he wanted to bring the old condition 14 forward into the new conditions. Were the former conditions read to be sure that we picked up every special condition? Mr. Campbell noted that new condition 18 could be modified to reflect the old condition 14. Ms. Temple noted that we could also add a new condition to say that all conditions of the original use permit remain in effect unless modified by this approval. Everything will come over in place. Chairperson Kiser noted he supports the application with: • The additional condition that all old conditions remain in place except as modified by this approval. • Additionally would like to see condition 8 edited, All windows will remain closed at all times. Doors will be used as patrons enter and leave the 10 i • • City of Newport Beach Planning Commission Minutes November 7, 2002 INDEX premises during any live entertainment. • The need to talk about the sale of the distilled spirits for consumption on site and possibly limiting that as a percent of total on site consumption of alcohol. Commissioner Tucker noted: • Disappointed that the conditions are not tracking. In other situations there have been use permits upon use permits and after several years there is a lot of confusion as opposed to an amended and restated use permit, which is distinctly my preference. That way everything Is in one document and we are not trying to figure out inconsistencies in language between serial amendments to use permits. • Concerned about condition 8, since Udo Marina Village in its current Iteration will not be that way forever. It has not been a terribly successful place, the City has ownership of some of the property in there and it would not shock me if it turns residential in some measure. I don't know, but I think we need to zero in on the potentiality of noise in the event we have residential across the street. Keeping the doors closed is an important aspect and I think we need to talk about the amplification. The drums and base are what we find to be problematic. • The 29 people for Unit A2 limit works. 1 would not want the restriction on beer. As far as the number of nights for the entertainment, looking into the future, I am concerned so there should be some restriction. The percentage of distilled spirits on sale consumption versus all other on sale consumption should be addressed with the price pants considered. Commissioner Gifford noted: • Enjoys the premises, it is a nice space. • Music would be a lovely addition. • Concerned about the service of alcohol. • The enthusiasm of the Commission with the original application was to approve a wine bar and for someone to be able to offer a customer a glass of cognac as something to offer, I would never have voted for a full liquor license in the Lido Balboa area because of the problems that we have had as the permit runs with the land. Motion was made by Commission Gifford to adopt Resolution No. 1679 approving the requested amendment to Use Permit No. 2001-005 (PA2002 -167) subject to the findings and conditions In Exhibit A with the following changes: • The use permit amended and restated to incorporate all the previous conditions. • Limitation of 29 seats in Unit A2 and no seating In Unit Al. • Modification to condition 18 regarding special events. • Modification to condition 8 regarding the windows being closed at all times during live entertainment. Doors will remain closed and be used only as patrons enter and leave the premises during any live entertainment. 11 Ail W • City of Newport Beach Planning Commission Minutes November 7, 2002 INDEX • No beer • No drums • No base • Sale of distilled spirits for on -site consumption be 10% of the total sales of on -site alcohol consumption. Chairperson Kiser clarified other conditions and asked that old condition 14 be carried forward verbatim in the new conditions. Commissioner Tucker noted that old condition 14 says a special event permit is required for any event or promotional activity outside the norm, 29 people is tied into a special event permit. What I was suggesting was 29 people in Unit A2. They may end up having people wander in on the retail side and have a full house on the other side, I don't have a problem with that. It is the area where there will be drinking and drinks served that 1 am concerned with. Following a brief discussion it was decided that the floor plan is tied In -with this vote. Public comment was opened. Ms. Overstreet noted that in the retail area there are two chairs as sometimes customers spend an hour there referring to books, checking ratings and comparing prices. It's a process that goes on and the patrons need to be able to sit down. Commissioner Tucker explained that you have a condition that says that the on- site consumption is only going to be 20% of the business. Most of the 20% of the on sale consumption will be wine. The price points on the wines are probably higher than the typical cocktail. What Commissioner Gifford was suggesting was that of the total amount of on -site consumption sales that occur, she would like to see that number for distilled spirits not exceed 10% (dollar volume). Commissioner Gifford added that the original 20% of the gross sales, If you are selling the kind of wines you are talking about, generates a big number to have 20% of. Chairperson Kiser added that this is not on a nightly basis. It Is only when the receipts are reviewed by the City reflecting the on site consumption as well as the 10% was distilled spirits. Public comment was closed. Chairperson Kiser withdrew the suggestion to Incorporate old condition 14 as It was only for special events outside the normal operation characteristics. Commissioner Gifford noted that there is no food service in Al and 1 proposed a condition that there be no seating, but I would propose that there could be up to three seats in Al for customer use. 12 �b City of Newport Beach Planning Commission Minutes November 7, 2002 INDEX Commissioner Toerge noted that there are often times that acoustic bases are appropriate. I would not want to hamstring an entertainer's ability to create some dynamics at low volumes with some amplification. My experience, even in a solo presentation, it is often times reasonable to amplify either the voice or the Instrument to create proper dynamics in a small venue. I don't know if there is a way to allow some amplification but limit it so that it doesn't create the problem that we are addressing here. Commissioner Gifford noted that a compromise would be no base and the windows closed. I would suggest that amplification could be allowed within those restrictions. Ms. Temple suggested that limiting effects of entertainment venues on the live entertainment process rather than getting real specific In the use permit might be an option for the Commission. We know the Issues, no base and drums is Interesting but the Issue is noise exiting or being heard outside the facility. I think that the idea is that you do not want the music heard nor felt outside the facility and that through the review that the Revenue Manager does with live entertainment permits, we are starting to get better managing that with real specific conditions on those licensing permits. Maybe to really express that is the goal that the music is not to be heard or felt outside the facility as provided in Title 5 and let us regulate it at the staff level. Additionally, it is a licensing permit not a use permit and therefore does not vest and run with the property. This is different than a special event permit, it is a continuing permit but it can be revoked if the standards of Title 5 are not met. The live entertainment permit Is needed regardless of how specific or general your conditions are. Commissioner Gifford added that if we made a condition that said live entertainment is permitted subject to a live entertainment permit, we would be covering our concerns. Ms. Temple answered yes. Ms. Clauson added that you could limit the number of days per week pursuant to Chapter 5.28 of the Municipal Code. For the most recent determination on the Village Inn, staff worked out a procedure for having them submit as part of the live entertainment permit application what their amplification Is going to be. The Commission can regulate the impact of that amplification based upon settings of the amplification. It is much better because it is specific to the applicant. Chairperson Kiser noted that based on that and staff's comment and the ability to actually control the entertainment and the sound vibrations outside the premises, would be willing to back off the no amplified music so long as the motion did add a maximum three days per week for live entertainment and subject to obtaining a live entertainment permit. Straw vote getting away from the no drums, no amplification and subject to obtaining the live entertainment permit for only maximum of 3 days per week: 13 S� W 0 City of Newport Beach Planning Commission Minutes November 7, 2002 Commissioner Toerge - (no testimony recorded) Commissioner AgaJanian - yes. Commissioner McDaniel - yes Commissioner Tucker - should new condition 8 appear at all? If the purpose of the use permit grants a right that runs with the property and I think what we are attempting to do is not grant any right that runs with the property but not preclude the applicant from coming in for a live entertainment permit. Should we not have anything here at all? Mr. Campbell answered that this condition was based on the applicant's request asking for three entertainers. We needed to change one of the original conditions that prohibited live entertainment so what we did was turn that condition around to permit it. It could be achieved by eliminating the condition. Ms. Wood added that could be done except it does not cover the limitation on three nights. Ms. Clauson suggested that one way to look at this is the live entertainment is an operational characteristic of the use the applicant is proposing. You can't automatically take the position that anybody who wanted live entertainment just has to get a live entertainment permit. The decision could be made by the Commission but should be made as part of the regulations because live entertainment Is an operational characteristic; it is just a matter of giving them the ability to have it If you want to limit the number of days they can have it; all I was suggesting is that the live entertainment permit as far as controlling the noise and the sound and what type of musicians. In other words they would make an application if they want to have it. Commissioner Selich noted that the Commission should be as general as we can be in the conditions and only put those gross limitations on, whether it Is the number of nights, etc., and leave the rest of it In the live entertainment permit. It does us no good to sit here and try to micro manage it. We look at the number of days or nights, that's all and leave the rest up to staff. The live entertainment permit can handle this. I don't have a problem in this location and the type of business it is to limit the number of nights; there will be enough controls over it. Commissioner Gifford continued with her motion and edited new condition 8 to read, live entertainment shall be permitted pursuant to a live entertainment permit. The experiences we have had over the years and the processes we have gone through, have given us confidence in this live entertainment permit process. I would be happy to leave it at that. Ms. Temple stated that the way to monitor the limitation of the percentages is if the cash registering system is set up to ring alcohol sales that are wine as a different category from other distilled spirits unless they have a system that is capable of doing that, otherwise there is not a real valid way of monitoring it. Additionally, there was some conversation about the monitoring requirements, we should mention that the percentages are either on a gross sales per monthly basis, 14 INDEX 10 City of Newport Beach Planning Commission Minutes November 7, 2002 quarterly basis or annual basis, just so we know what the monitoring periods are. Commissioner Gifford answered that a six -month basis would be appropriate for the 10%. Chairperson Kiser clarified item 8, as restated with the live entertainment being subject to obtaining a live entertainment permit. That is, still with the windows to remain closed at all times and doors to remain closed during the live entertainment except when customers enter and /or leave. Mr. Campbell noted that there is a standard condition for the windows and doors closure. The provisions of the Chapter provide that sound not escape the building. Ms. Wood clarified that this Is annual for the 20% and 6 months for the 10% on site, what about the 15% standard for all off -site alcohol sales? Following a brief discussion, it was decided that the City would look at the ABC report on an annual basis for the 20% and the 15% and 10% reviews will be done on a half yearly basis. Chairperson Kiser stated he would like to keep the reference about the windows and doors being closed during live entertainment as well as the maximum three days per week. These are matters that would be assurances that if another operator picked up this business, It would be much more difficult to move this thing towards being a nightclub. Commissioner Gifford noted she would prefer to let the live entertainment permit be the vehicle to handle all of those matters because the live entertainment permit can be reviewed if there is any problem, I don't see the reason to limit the number of nights. Straw vote was taken: Commissioner Tucker supports the three days per week and leaving the windows and doors closed as part of the motion. Commissioner Selich supports Commissioner Gifford Commissioner McDaniel supports the three days per week because the more we manage it now, the less it causes us trouble when we see it later. Commissioner Agajanian supports the three -day limitation as well as the doors and windows being closed. Commissioner Toerge stated he would like to put in that live entertainment shall be limited to three musicians, three nights a week subject to the provisions of the live entertainment permit. Chairperson Kiser stated he would remove his support for the three entertainers limit. Commissioner Gifford clarified that her understanding was that the doors and 15 INDEX City of Newport Beach Planning Commission Minutes November 7, 2002 INDEX windows would be incorporated into the live entertainment permit so that we would not have reference to it in other places. Since this is the document we control, she amended her motion in terms of condition 8 to keep the language that was suggested earlier and add, during live entertainment, doors and windows shall remain closed at all times and live entertainment shall be limited to three nights per week subject to obtaining a live entertainment permit. Another condition shall read, 'if staff's review of the percentages find that the applicant is not In compliance, this application will be brought forward to the Planning Commission for review'. Ayes: Toerge, Agajanian, McDaniel, Kiser, Gifford, Selich, Tucker Noes: None *rt Yokoyoma Residence (PA2002 -173) I Item 4 6705 Seashore Drive PA2002 -173 Call \thetTa of the approval of Modification Permit No. 2002 -088 (PA 2002 -173) Decision modified with additional Chaiser noted that this item was called up at the request of the Public conditions Workent. The Modifications Committee voted 2 to 1 to approve the refere it. The Public Works representative voted against. The applque a 2nd floor addition and alteration to an existing single - family dwelmultiple onconformitles. Ms. Tted that the ublic Works Director was in the audience and here to respoestions. Nathan Lentz representing the ap cant noted the following: • Most of the alterations on th round floor are reflective of the Planning Code requirements accom dating the required setbacks and providing the additional parking s ce, since the existing house has only onespace. • The house is being pushed over 3-4 f t because the house is on the eastern lot line. • The modification requested Is for the parkin nd has nothing to do with what the homeowner wants to do in the house. • Once these modifications were approved we trying to move this project forward. • The concern of backing out onto the street given bike path and traffic are the same for other residences on the street. • The encroachment in the alley of 2 feet is to accommodate a garage. The rest of the building has been held to the 5 -foot alley setbac . At Commission inquiry, Mr. Lentz added: • The depth along the garage along the alley is 18.6 inches to the the garage door. 16 A 4 ?EW�Rr 'Aw u, _ � 9{IFOPP CITY OF NEl � TORT BEACH PLANNING DEPARTMENT 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 (949) 644 -3200; FAX (949) 644 -3229 Hearing Daiw Agenda Item: Staff Person: )eal Period: 14 da REPORT TO THE PLANNING COMMISSION PROJECT: Overstreet's Wine Merchant & Wine Bar (PA2002 -167) 3400 Via Lido November 7, 2002 3 Bill Cunningham (949) 644 -3234 (s after final action SUMMARY: Request for an amendment to a previously- approved use permit to include the sale of distilled spirits (Type 47: beer, wine & spirits) for on -site consumption, to permit live entertainment, and to expand the hours of operation from 11:00 pm to 12:00 midnight on Fridays and Saturdays at an existing retail Alcoholic Beverage Outlet located in Lido Village. RECOMMENDED ACTION: Adopt Resolution No._ approving the requested Amendment to Use Permit No. 2001 -005 (PA2002 -167) with conditions. APPLICANT: Dennis & Christine Overstreet 3400 Via Lido Newport Beach, CA 92663 PROPERTY OWNER: Dennis & Christine Overstreet LOCATION: 3400 Via Lido (Lido Village) LEGAL DESCRIPTION: Lot 2 of Tract 1235 GENERAL PLAN: Retail & Service Commercial ZONING DISTRICT: Retail and Service Commercial (RSC) �5 3 Atp 4? M ��N 0 200 400 Feet n t� �D Subject Property` VICINITY MAR U� Amendment to Use Permit No. 2001 -005 (PA2002 -167) 3400 Via Lido Current Development: Existing wine sales and wine tasting business. To the north: Retail and service commercial. To the east: Retail and service commercial across Via Oporto. To the south: Retail and service commercial is Lido Plaza across Via Lido. To the west: Retail and service commercial. (oapplicanw (aapphcation»)) (omeetingdate ») Page 2 of 9 (0 Site/Project Overview The wine sales and tasting business is existing and located at the northwest corner of the intersection of Via Lido and Via Oporto. Currently, the business operates with a Type 21 off - sale general license and a Type 42 on -sale beer and wine license for wine tasting only. The applicant proposes the following modifications to the original use permit: 1. Permit the sale of distilled beverages for on -site consumption (Type 47 license); 2. Permit live entertainment; and 3. Expand the hours of operation from 11:00 pm on Fridays and Saturdays, to 12:00 midnight. The applicant proposes to maintain the size and other operating characteristics as approved under Use Permit No. 2001 -005 in that there are no interior or exterior modifications proposed to the building, and the maximum number of patrons on the premises at any time is to continue to be limited to 29 persons. In addition, as originally approved, only limited food service was to be provided such as hors d'oeuvres and light snacks. Applicant has submitted a copy of the menu which indicates that the food service is somewhat extensive, but staff believes that the food service is supportive of the retail business and is not classified as an eating and drinking establishment (see discussion that follows). The live entertainment is proposed for seven days a week, and will consist of three- musicians offering "light jazz and contemporary music." As approved and conditioned, the wine tasting and food service portion of the business is limited to Suite B, and the retail portion limited to Suite A (note: the plans submitted with this application have changed the designation of Suite A to "Unit Al ", and Suite B to "Unit A2" -- the size of each portion of the business remain unchanged). Background Use Permit No. 2001 -005 was approved by the Planning Commission on April 5, 2001. The approval was for "a new alcoholic beverage license (Type 21, off -sale general) in conjunction with a fine wine retail establishment [with] pe with a Type 42 alcohol license.- Included in the original riodic on -site wine tasting seminars in the evenings for approximately 3o people application was a request for a parking waiver. In discussing the applicant's request at the April 5, 2001 public hearing, the Planning Commission had expressed concern that the on -site sale of wine be an ancillary use to the retail sale of alcoholic beverages for off -site consumption, and that the use was not classified as an eating and drinking establishment or bar. The Planning Commission's concerns with respect to this point related to the high number of alcohol - related crimes within the vicinity of the subject property, and the lack of on -site parking and limited number of parking spaces in close proximity to the site. To that end, the Planning Commission adopted a number of conditions (and added revisions to other conditions recommended by staff) that were intended to ensure that the business would be operated primarily as a retail use and would not operate as a restaurant or evolve into a bar or cocktail lounge. Specifically, the Planning Commission approved the use subject to, among other conditions, the following: ( «applicant)) («applicatiom>)) Onieetingdate))) 1 Page 3 of 9 D Condition No. 1 stated that "the alcoholic beverage outlet is hereby defined as a retail establishment for off-site consumption as the primary and principal use... 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 ofgross sales... " Condition No. 5 that stated "approval does not permit the premises to operate as an eating and drinking establishment, restaurant, bar, tavern, cocktail lounge or night club... " The minutes of the April 5, 2001 Planning Commission meeting and the finding and conditions of approval for Use Permit No. 2001 -005 are included as Exhibit No. 2. Analysis In analyzing the applicant's request, staff evaluated whether or not the change in the uses and business operation proposed by the applicant would materially change the use classification. The applicant is requesting a new Type 47 Department of Alcoholic Beverage Control license to permit the on -site consumption of alcoholic beverages including distilled beverages. A Type 47 license is a restaurant license where the business must operate and maintain a bona fide eating place and make substantial sales of meals during normal meal times. Included within the request is an extension of the closing time from 11:00 pm to 12:00 midnight Fridays and Saturdays, and live entertainment seven days a week. As discussed above, the staff evaluation and Planning Commission discussion of the original request centered on the business operating as a retail use, with the majority of the sales related to the retail sales of wine. Therefore, conditions were included that 1) prohibited the on -site consumption of beer, 2) prohibited live entertainment, and 3) required that on -site consumption of wine be as an accessory use to retail sales as the principal use and that the business not operate as a restaurant. In addition, as indicated in the attached minutes of the April 5, 2001 Planning Commission meeting, the applicant represented that the on -site consumption of wine would be limited to small sample sizes (one ounce or less) only. While the requested changes could be viewed as a potential to change the classification of the business, the applicant has stated that the intent is to remain as a business specializing in wine sales with ancillary wine tasting and consumption with light snacks and small food portions, and they have stated that they intend to continue to comply with the original conditions restricting the on -site consumption of alcoholic beverages to not exceed 20 percent of gross sales. Staff has included that condition in the draft resolution (Condition No. 4). Related to the classification of the business is the extent of the food service being offered at the business. As noted above, the original application included minor hors d'oeuvres and snacks. The applicant has submitted their menu (included as Exhibit No. 3), which shows the array of food items being offered is extensive. However, the menu items are mostly small portions and are offered with accompanying wine selections. Because of this, staff believes the food service remains accessory to the primary function of retail sales of wine, and staff notes that the kitchen facilities are very limited in terms of size and equipment. Therefore, in staff's opinion, the food service is ancillary to the on -site alcoholic beverage consumption and the business does not constitute an eating and drinking establishment. The findings and conditions of the original («applicant» («application»)) ( «meetingdate))) Page 4 of 9 C6 application approval restricting the on -site food and alcohol sales receipts has been carried forward in the draft resolution. City Council Policy K -7 states that establishments are defined as a bar or cocktail lounge if they demonstrate either one or both of the following characteristics: A. A licensed as a `public premises" by the Department of Alcoholic Beverage Control, or B. Provides an area for serving alcoholic beverages that is operated during hours not corresponding to regular meal service hours. Food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service. A Type 47 license is a restaurant license and not a "public premises." ABC defines a restaurant as having normal dining hours of between 6:00 p.m. and 9:00 p.m. The applicant proposes to service food from 11:00 a.m. to 12:00 midnight, which can be viewed as "not corresponding to regular meal service hours" as stated in Item B of City Council Policy K -7. However, for the reasons discussed above, staff is of the opinion that the business continues to operate as a retail business with ancillary on -site alcoholic beverage consumption. Therefore, City Council Policy K -7 does not apply. General Plan The City's General Plan designates the site as Retail and Service Commercial, with an allowable floor area ratio for the Lido Village area of 0.5/0.75 FAR. Retail sales of alcoholic beverages and ancillary uses thereto such as wine tasting and minor food service is a permitted use within the Retail Service Commercial designation. As noted in the original staff report for the 2001 Planning Commission meeting Apri 15, , the building exceeds the allowable General Plan FAR with an existing FAR of 0.83. However, as noted in that staff report, the building is considered legal, nonconforming and the project did not, and does not now, include an increase in floor area. Therefore, the applicant's request is consistent with the General Plan. Alcoholic Beverage Ordinance (ABO) In accordance with Section 20.89.030A of the ABO, a use permit shall be required for any existing alcoholic beverage outlet if the business changes its type of retail liquor license with the Department of Alcoholic Beverage Control. Therefore, this staff analysis is required in conjunction with the ABO. The purpose of the ABO 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 outlets, while preventing alcohol - related problems. The ABO requires the Planning Commission to consider the following factors: 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. ( «applicant» ((<appIication>>)) (ameetingdate))) Page 5 of 9 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 and recreation facilities, outlet to religious residential day chools. centers, park In accordance with the foregoing, and in order to provide the Planning Commission with the necessary data and analysis to make the required findings, each of the foregoing factors are discussed as follows: 1. Public Convenience or Necessitv. The business has been in operation for approximately one year, and has been operating as a retail wine merchant with ancillary on -site in47� and the noted above, the change in the license to a full on -site alcohol sales (Type introduction of live entertainment, will not substantially change the operating characteristics and the business continues to be classified as retail alcoholic beverage sales with ancillary on -site alcoholic beverage consumption. The Police Chief is designated by Council Policy K -7 to be responsible for making an official finding of Public Convenience and Necessity on behalf of the City. The Police Department's report (included as Exhibit No. 5) states that the new proposed use will substantially change the use as currently exists, and "could arguably make the business more like a bar /cocktail lounge and less like a restaurant that provides alcoholic beverages in conjunction with food service. " The Police Department concludes that the proposed changes will likely result in an increase in police activities in the area, and they state that "it is difficult for the Police Department to endorse the propose intensified use permit modification." In addition, it is noted by both Planning and Police Department staff that the area is characterized by a number of existing establishments that have on -site service of alcoholic beverages. However, the Police Department analysis was based on the business changing to a bar or cocktail lounge, and there appears to be incomplete clarity relative to the exact operating characteristics of the business. Therefore, the Police Department report leaves the decision to the Planning Commission with respect to the changes requested by the applicant. As discussed above, the changes do not materially change the overall operating characteristics of the business, which continue to operate as a retail wine business with ancillary on -site alcoholic beverage and food consumption. Therefore, in staff's opinion, the Pubic Convenience or Necessity finding contained in the original approval can continue to be made for this amendment request. 2. Crime Rate. Citywide, there were 6,955 crimes reported during calendar year 2001, of which 2,852 were Part One Crimes (serious offenses). The remaining 4,103 were Part Two Crimes that include alcohol related arrests. The project site, located within the Lido Village area, is located within Police Reporting District No. 15. During 2001, the number of Part One Crimes in RD No-15 was 367 and the number of Part Two Crimes was 912. Adjacent Reporting Districts are Nos. 16 and 13. RD No. 16 had 178 Part One and 424 Part Two Crimes; and RD No. 13 had 101 Part One and 161 Part Two Crimes. As noted in the Police Department report, the crimes within the reporting district of the project site are higher than surrounding RD's, and are significantly higher than the City-wide average. The reported crimes within RD No. 15 are (,,appticant» ( «application»)) ( «meetingdate» ) Page 6 of 9 f�� over 500% above the City -wide reporting district average. Even though the Police Department has expressed a concern that the revised operating characteristics requested by the applicant could result in the business operating more like a bar or cocktail lounge, the business will continue to operate primarily as a retail premium wine shop with ancillary on -site alcoholic beverage consumption. Therefore, in staff's opinion, the original finding can continue to be made that the business will not result in an increase in crime rate within the area. 3. Over Concentration. The request will result in one additional on -site alcohol beverage (Type 47) license within RD No. 15. There are a total of 70 active ABC licenses within RD No. 15. The census tract within which the business is located has a higher ratio of liquor licenses (1 license per every 88 persons) when compared with the average ratio for Orange County (1 license per every 590 persons), and the area has a number of businesses with Type 47 licenses. However, the new Type 47 Iicense is a replacement for the existing Type 42 license. Therefore, there will be no net increase in the total number of ABC licenses within the reporting district. 4. Alcohol Related Crimes. The Police Department has provided statistics for driving under the influence and plain drunk arrests. There were 137 driving under the influence arrests and 476 plain drunk arrests within RD No. 15 in 2001. The percentage of alcohol related arrests within RD No. 15 is 68.7 %. City -wide, alcohol related arrests account for 48.7% of all arrests made. The alcohol - related arrest rate in the two adjacent reporting districts is 62.4% for RD No. 16 and 50.9% for RD No. 13. (A map of the reporting districts is included in Exhibit No. 4.) The rate within RD No. 15, within which the project is located, is higher than the city-wide average and also higher than the two adjacent RD's. As noted above, the Police Department report states that the changes proposed will result in a use more like a bar or cocktail lounge, and could result in a likely anticipated increase in police related activities. However, the use classification is not being changed, and the business will continue to operate primarily as a retail wine shop with ancillary alcoholic beverage sales. 5. Adjacent Uses. The site is located within the Lido Village area that is predominantly commercial. The project site is not adjacent to sensitive land uses, and there are no day care centers, schools, or park and recreation facilities in the vicinity of the project site. The nearest residential uses are located approximately 600 feet to the west across Newport Boulevard, and approximately 600 feet to the southeast along the easterly side of Via Lido. A concern also discussed in the staff report for the use as it was originally proposed in 2001 was relative to the potential to change the operational characteristics given a change in ownership. The business has operated for approximately one year with no known alcohol - related problems. However, the past operation has been with on -site alcohol consumption on a limited basis and incidental to the retail sales of wine. The proposed change would result in the business operating with a Type 47 license that will allow full liquor service for on -site consumption, and with live entertainment. As noted in the 2001 staff report, a use permit runs with the land and not with the individual. Staff is concerned relative to the potential adverse effects which may result if the business were sold to an operator that wished to change the characteristics resulting in less emphasis on the sale of fine wines, or change the type of live entertainment provided. This concern is tempered somewhat by the fact that the applicant is also the owner of the property, but staff remains concerned about a potential future operator of the business who could lack the (<<applicanb) (<(application)>)) («meetingdate ))) Page 7 of 9 sensitivity to alcohol - related issues demonstrated by the current business owner. Nevertheless, these concerns relate primarily to the potential for the business being changed to a bar or cocktail lounge use. In response to this concern, staff has included a condition (No. 9) requiring future owners to be notified of the conditions and submittal of a letter by the owners acknowledging acceptance of the limitations and conditions. Hours of Operation The applicant's request includes an amendment to the operating hours. The existing conditions for the use permit include the hours of operation limited to 10:00 a.m. to 11:00 p.m. daily for the retail portion of the business, and from 1:00 p.m. to 11:00 p.m. for the wine tasting portion. Applicant is requesting that the wine tasting portion of the business be expanded to 12:00 midnight on Fridays and Saturdays. Staff does not feel that the request to extend the hours of operation as requested by the applicant is unreasonable. Parking The original approval of Use Permit No. 2001 -005 included a parking waiver. The site is nonconforming in that there are no off - street parking spaces provided on the site. The analysis at that time determined that the use (retail alcohol sales with ancillary on -site wine tasting) would require 21 parking spaces. This parking requirement was based on the retail portion of the business being 1,328 square feet and computed on the standard of one parking space per 250 square feet of floor area; and the wine tasting/seminar portion based on a maximum of 29 patrons and six employees. In granting the parking waiver it was noted that a parking management plan exists for 22 spaces provided within Lido Marina Village parking garage, and a Condition ( #18) was included within the approving action requiring the applicant to submit documentation that at least 21 spaces are available. Subsequently, a copy of the parking agreement between the applicant and the Lido Marina Village parking garage was submitted and it stipulates that a total of 33 spaces have been made available to the business. The applicant has submitted a menu that suggests that the food service goes beyond light snacks and hors d'oeuvres. However, for the reasons discussed above, staff continues to classify the food service as ancillary to the predominate retail use of the business. However, staff notes that the original approval included a parking waiver that was based on the use being as retail sales with ancillary wine tasting and light food service. If the use classification were to be changed to an eating and drinking establishment, the parking requirement would increase for that portion of the business (i.e., the portion operated in Suite A2). Suite A2 consists of 1,263 square feet. The parking standard for eating and drinking establishments ranges from one parking space for every 30 to 50 square feet resulting in a requirement of 26 to 43 spaces for that portion of the business. Therefore, if the business is classified as an eating and drinking establishment, the parking waiver increases from 21 spaces, to 37 to 48 spaces. Since this analysis was based on the business classification remaining unchanged, a waiver of parking was not advertised as part of the public hearing notice. If, however, the Planning Commission determines that the use classification is in fact changing to that of an eating and drinking establishment, it will be necessary to continue the public hearing and send out a revised public hearing notice. (oapplicanb) (oapplicationo)) (omeetingdate ») Page 8 of 9 p� Environmental Review This project has been reviewed, and it has been determined that it is categorically exempt from the requirements of the California Environmental Quality Act under Class 1 (Minor Alteration of Existing Structures). Conclusion In summary, staff believes that the changes requested by the applicant will not result in a substantial change in the operating characteristics of the business, which will continue to operate as a retail alcoholic beverage outlet with on -site alcoholic beverage consumption and food service that is incidental to the retail sales. If the Planning Commission agrees with this conclusion, staff believes, the findings of the ABO continue to be met by the findings contained within the approving action for the original use permit, in which case it would be appropriate for the Planning Commission to adopt the draft resolution of approval. The Commission has the option to determine that the business classification has changed to that of a bar or cocktail lounge, in which case, and in accordance with City Council Policy K -7, it would be necessary to deny the amendment. Staff has included Findings for Denial as Exhibit No.2. The Commission also has the option to determine that the portion of the business with on -site food and alcoholic beverage consumption is classified as an eating and drinking establishment. If so determined, it is necessary to continue the public hearing and instruct staff to re- notice the item to include an amendment to the parking waiver. Submitted by: Prepared by: PATRICIA L. TEMPLE WILLIAM CUNNINGHAM Planning Director Contract Planner y l Exhibits Resolution No. 2002 -_, findings and conditions of approval 2. Findings for denial 4. Letter and project description from applicant oil tim-f .w . 6. Police Department report Project plans (oapplicanw (((applicafiom)) (,aneetingdate))) Page 9 of 9 � f RESOLUTION NO. 1579 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH APPROVING AMENDMENT TO USE PERMIT NO. 2001 -005 (PA2002-167) FOR PROPERTY LOCATED AT 3400 VIA LIDO THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS, RESOLVES AND ORDERS AS FOLLOWS: Section 1. An application was filed by Dennis and Christine Overstreet with respect to property located at 3400 Via Lido and legally described as Lot 2 of Tract 1235, requesting approval of Amendment to Use Permit No. 2001 -005 pursuant to the Alcoholic Beverage Outlet Ordinance (ABO) to authorize a Type 47 ABC license for on -site consumption of general alcoholic beverages, live entertainment, and expansion of hours of operation. Section 2. A public hearing was held on November 7, 2002 in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the aforesaid meeting was given. Evidence, both written and oral, was presented to and considered by the Planning Commission at this meeting. Section 3. The Planning Commission finds as follows: The proposed location of the alcoholic.sales establishment needing this use permit, and the proposed conditions under which it would be operated or maintained, is consistent with the General Plan and the purpose of the district in which the site is located; will not be detrimental to the public health, safety, peace, morals, comfort, or'welfare of persons residing or working in or adjacent to the neighborhood of such use; and will not be detrimental to the properties or improvements in the vicinity or to the general welfare of the city. The structure that the proposed use will occupy is legal, nonconforming with respect to the maximum floor area ratio, however, the proposed changes in the use do not increase the gross floor area of the building. The amended use permit pertains to the on -site consumption of alcoholic beverages in conjunction with retail alcoholic beverage sales in a building that is designated and zoned for this activity. The use has been conditioned in such a manner to minimize the impacts associated with the sale of alcoholic beverages. The plans, as conditioned, meet the design and development standards for alcoholic sales. 2. The operational characteristics of the proposed use, including the hours of operation, are consistent with Municipal Code requirements. Any change in the operational characteristics, including a change in the hours of operation, would require an amendment to the Use Permit, reviewed by the Planning Commission. 3. The proposed project is consistent with the purpose and intent of Chapter 20.89 of the.Municipal Code (Alcoholic Beverage Outlets Ordinance) for the following reasons: a. The convenience of the public can be served . by the sale of desired beverages in conjunction with a full- service, sit -down restaurant that is complementary to surrounding (; City of Newport Beach Planning Commission Resolution No. 1574 Page 2 of 6 uses within the Lido Village area. Alcohol service is typical and expected by the public in a full- service restaurant setting. b. The crime rate in the police reporting district and adjacent reporting districts is not likely to increase as a result of the proposed use provided that the use is operated as an eating and drinking establishment, with the on -site consumption of alcohol incidental to the restaurant use. C. The number of alcohol licenses within the report districts and adjacent reporting districts is high given the nature of the land uses in the district and when compared with County -wide data, but the change in the license classification of a Type 42 to a Type 47 will not result in an increase in licenses within the report district. d. The percentage of alcohol- related arrests in the police reporting district in which the project is proposed is higher than the percentage citywide. However, on -site consumption is not expected to increase alcoholic related crime in that the use is incidental to the use of the site as an eating and drinking establishment. e. There are no sensitive uses such as residences, day care centers, schools, or park and recreation facilities in the vicinity of the project site. 4. The project has been reviewed, and it qualifies for a categorical exemption pursuant to the California Environmental Quality Act under Class I (Minor alteration of existing structures). Section 4. Based on the aforementioned findings, the Planning Commission hereby approves Amendment to Use 1?ennit No. 2001 -005, subject to the Conditions set forth in Exhibit "A." Section 5. This action shall become final and effective fourteen days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk or this action is called for review by the City Council in accordance with the provisions of Title 20, Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED AND ADOPTED THIS 7th DAY OF NOVEMBER 2002. M , Chairman Secretary AYES: Aggianian, Gifford, Kiser McDaniel. Selich. Toerge and Tucker NOES: None q5 7 f. City of Newport Beach Planning Commission Resolution No. 1579 Page 3 of 6 EXHIBIT "A„ CONDITIONS OF APPROVAL USE PERMIT NO. 2001-005 1. The development shall be insubstantial conformance with the approved plot plan, floor plan, and elevations dated January 22, 2001, 2. This Use Permit for an akoholic 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. 3. That any change in operational characteristics, hours of operation, expansion in area, or operation characteristics; or other modification to the floor plan, shall require an amendment to this Use Permit or the processing of a new Use Permit. 4. Should this business be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing agent. 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 and conditions of approval of this Use Permit. 5. The applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use will be cause for revocation bf this permit. 6. 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. 7. Trash generated by the business shall be screened from view from adjoining properties except when placed for pick -up by refuse collection agencies. Trash receptacles for patrons shall be conveniently located both inside and outside the proposed facility. 8. No outdoor loudspeaker or paging system shall be permitted in conjunction with the operation. 9. All signs shall conform to the provisions of Chapter 20.67 of the Municipal Code. No temporary "sandwich" signs or similar temporary signs shall be pertntted, either on -site or off -site, to advertise the restaurant. 10. The alcoholic beverage oudet'is 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 accessory and subordinate to the principal retail use and alcoholic beverages sales for on -site consumption shall not exceed 20 percent of gross sales for the business. The applicant or operator shall maintain adequate records to determine Ck(D. ! City of Newport Beach Planning Commission Resolution No..1579 Page 4 of 6 compliance with this condition and shall provide the City said records when requested. The time period for the purposes of conducting this review shall be in accordance with Alcoholic Beverage Control Board standards. 11. The sale of distilled spirits for off -site consumption shall not exceed 15 percent of gross receipts of all off -site alcohol sales. The sale of distilled spirits for on -site consumption shall not exceed 10% of the total sales for on -site consumption of all alcoholic beverages. The applicant or operator shall maintain adequate records to determine compliance with this condition and shall provide the City said records when requested. The time period for the purposes of conducting this review shall be 6 months. 12. Gross receipts shall be reviewed by the City for purposes of compliance with the requirements of the Zoning Code and Use Permit if the use is believed to be operating in non - compliance. If the sales percentages review finds that the applicant is not in compliance, this application shall be brought forward to the Planning Commission for review. 13. 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. 14. The interior area authorized for on -site alcoholic beverage consumption in conjunction with a Type 47 license shall be limited to 1,263 sq. ft. as delineated on the approved floor plans as "Unit A2" with a maximum of 29 seats. The interior area authorized for the retail sales for general alcoholic beverages for off -site consumption shall be limited to 1,328 sq. ft. as delineated ow the approved floor plans as "Unit Al" with a maximum of 3 seats. On =site consumption of alcoholic beverages shall be prohibited in Unit Al. Substantial changes to the floor plans shall require prior approval by the Planning Commission. Any increase in area of either Unit Al or Unit A2 shall be deemed substantial for the purposes of requiring review by the Planning Commission. 15. Hours of operation shall be from 10:00 AM to 11:00 PM, daily for the retail portion of the project, and 1:00 PM to 12:00 midnight Fridays and Saturdays and 1:00 p.m. to 11:00 p.m. Sunday through Thursday for the eating and drinking portion of the project. Organized educational seminars shall not be conducted more than 3 days per week. 16. Live entertainment may occur subject to the approval of a Live Entertainment Permit and dancing is. prohibited. Live entertainment shall not occur more than 3 days per week. Music shall be limited to indoor areas only and all windows and doors shall remain closed during performances except for incidental ingress and egress of patrons. Management of the business shall make every effort to keep the doors closed during performances. 17. The sale of beer, whether for on- site or off -site consumption, shall be prohibited. 18. 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. �1 City of Newport Beach Planning Commission Resolution No. 1579 Page 5 of 6 19. 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. 20. The alcoholic leverage 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. 21. Alcoholic beverage sale from drive -up or walk -up windows shall be prohibited 22. Any event or activity staged by an outside promoter or entity, where the business owner or his employees or representatives share in any profits, or pay any percentage or commission to a promoter or any other person based upon money collected as a door charge, cover charge or any other form of admission charge, including minimum drink orders or sale -of drinks is prohibited. 23. Loitering, open container, and other signs specified by the Alcoholic Beverage Control Act shall be posted as required by the State Department of ABC. 24. All owners, managers and employees selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for selling alcoholic beverages. The certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying/licensing 'body, which the State may designate. The establishment shall comply with the requirements of this section within 180 days of the issuance of the certificate of occupancy. Records of each owner's, manager's and employee's successful completion of the required certified training program shall be maintained on the premises and shall be presented upon request by a representative of the City of Newport Beach. 25. The applicant is required to obtain all applicable permits from the City Building and Fire Departments. The construction plans must comply with the most recent, City- adopted version of the California Building Code. Adequate access and exiting must be provided in accordance with the Building Code. 26. The facility and related off -street parking shall conform to the requirements of the Uniform Building Code. The project shall comply with State Disabled. Access requirements. 27. 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. 28. Health Department approval is required for any changes to the kitchen and other portions of the building that require a Building Permit. 0b City of Newport Beach Planning Commission Resolution No. 1579 Page 6 of 6 29. 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. 30. The owner /operator of the 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. 31. The applicant or operator of the facility 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 City Traffic Engineer prior to the commencement of the valet service use. 32. Delivery vehicles shall not park within the public right -of -way of Via Lido and Via Oporto. 33. The operator of the restaurant 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: 34. 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 insure compliance. qA 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 50dBA Mixed Use Rroperty 45dBA 60dBA 45dBA 50dBA Commercial Property N/A 65dBA N/A 60dBA 34. 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 insure compliance. qA August 12, 2002 James Campbell Senior Planning Commissioner City of Newport Beach 3300 Newport Boulevard Newport Beach, CA Dear Mr. Campbell: Dennis Overstreet and I (Christine Overstreet), owners and operators of Overstreet's Wine Merchant and Wine Bar, located at 3400 Via Lido, Newport Beach, Ca 92663, respectfully submit a new (revised) Use Permit Application to the Planning Commission of the City of Newport Beach for your review and consideration Attached for reference is our current Use Permit as well as our original application. . We are submitting a new application for the purpose of revising some of the conditions of our current Use Permit, as well as requesting new permit uses: We are not proposing any new construction; interior or exterior. All approved plans, inspec- tions and permits have been approved by all departments of the city of Newport Beach. No new ele- vations, roofs, or mechanical equipment are proposed. Photographs of the current and existing inte- rior and exterior of the building are attached. There is no adItional environmental impact on the surrounding area or the community regarding these uses. There are no variances required for these requests. We are seeking Use Permits for a full on- premise liquor license and an entertainment license for our Wine Bar. Overstreet's Wine Merchant and Wine Bar has demonstrated to the community that we operate a sophisticated and responsible establishment that caters to a mature audience that lives and visits the Peninsula area. We are not and will not be a "teen age hangout". In fact we post a sign that one must be 21 years or older to enter the wine bar area. As owners of the building and operators of the business, we have a vested interest in the commumty of Newport Beach We are a family of four, residing orr Lido Isle for the past four years and as residences of Newport Beach, we offer local residences a unique relax- ing atmosphere that appeals to a mature audience who enjoys soft jazz and contemporary music. Because of our location and size, we appeal to residents in our local neighborhood. This mini- mizes travel distances, and traffic on and off the Lido Peninsula. While our feature is a wine bar, we have begun to experience the fact that not everyone in a given party prefers-wine. Therefore, to encourage business and maximize customer satisfaction regarding beverage of choice, we respect- fully seek a use permit for a full on- premise liquor license. In addition, to offer the sophisticated atmosphere we are attempting to reach we respectfully seek your approval for a use permit that would entitle us to a live entertainment use permit. N 0 • Page 2 of Use Permit Application - August 12, 2002 Overstreeirs Wine Merchant & Wine Bar Our establishment serves only 29 people (USE PERMIT is for 29) and we wish to offer entertainment. Our establishment is not adjacent to nor close to any residences. We are an enclosed building so noise is not a factor. Our entertainment edit include musida nss that sing and /or play an instrument. We wish to offer soft Jazz and contemporary music for our setting. We request that we be permitted to offer entertainment seven days a week and that the it be limited to not more than three musicians. Several charity organizations and businesses have requeated.to host small events because of our sophisticated atmosphere and convenient location. The live music we envision would clearly enhance the ambiance of our setting and appeal to our clientele. The parking has not caused any undue stress or added congestion to the village or the immediate area because of our size and evening hours. Customers find convenient parking in the Lido Marina Village parking stricture and via the metered street parking. There is also a handi -cap parking space in the Village immediately adjacent to our side main entrance on Via Oporto. There have been no instances nor reports of instances by our local merchants, neighbors, polige or community- The presence of our unique establishment has brought a new interest and new customers to the Village and we are complimented daily on the appearance of the exterior and interior of our business and the services and products we provide. We request additional hours of operation: Friday and, Saturday evening closing at 12:00 mid- night rather than our present 11:00 pm closing time. This new closing time is consistent with people's desire to remain out a little'later on weekends, and is consistent with hours of-operation for establish- ments such as this. We are in the process of obtaining signatures /names &addresw a£locaLSrsidences andbusi- nesses that support our establishment and support this Use Permit application. (Attached is a copy of the beginnings of this supporting document.) We hope to obtain a space on the agenda for September 2062. Please advise us if this time frame is not feasible. . n of our requests. Attachments: City of Newport Beach Application and other attachments as stated above ,5� NEWPORT BEACH[ POLICE DEPARTMENT 870 Santa Barbara. P.O. Box 7000. Newport Beach, CA 92658 -7000 BOB McDONE Chief of Police October 15, 2002 TO: Bill Cunningham, Staff Planner FROM: CSO Susan Seviane SUBJECT: Overstreets at the Wine Merchant At your request, our office has examined the project review request for Overstreets at the Wine Merchant retail location located at 3400 Via Lido, Newport Beach. The applicant is requesting to upgrade the existing Use Permit to: 1) expand the ABC license to full alcoholic beverage on sale (Type 47), 2) allow daily live entertainment, and 3) expand the hours of operation from 11 pm to 12 midnight on Fridays and Saturdays. A light gounmet menu will be provided (i.e. chicken breast entrees, muscles, cheese, cracker, etc.). Mrs. Overstreet provided the following details concerning the planned operations. While the main feature is a wine bar, they want to encourage business and maximize customer satisfaction by adding full alcoholic beverage service. For the same reasons, they are seeking to add daily live entertainment (maximum of three musicians), offering "soft jazz and contemporary music." Mrs. Overstreets added that charity organizations and businesses have requested to host small events at the location. No new construction (interior or exterior) is planned. The occupancy limit of 29 will remain the same. The changes jn operational characteristics proposed by the applicant are significant. The existing location does not have a kitchen (there is a "hot plate and small refrigerator. etc.). The proposal to provide full alcoholic beverage service could arguably make the business more like a bar /cocktail lounge and less like a restaurant that provides alcoholic beverages in conjunction with food service. The addition -of live entertainment with expanded hours is consistent with cabaret/nightclub operational characteristics. Based on our experiences with similar business models, such enhanced uses can create a situation where we can likely anticipate an increase in police related activities linked to the proposed business operation. While we have no serious concerns with the current operation, we believe there is a greater policy /land use issue involved in the approval process for intensifying the alcohol usage in this area of the community. As a result, it is difficult for the Police Department to endorse the proposed intensified use permit modification, especially considering the existing concentration of ABC licenses in the area. Accordingly, we believe the decision more appropriately should be left to the Planning Commission and/or City Council based on the said impacts. If the modification is approved, we recommend- in addition to those conditions currently in place- developing conditions to address the issues as listed below. The proposed changes will also require modifications to the ABC license. Upon application to the Office or the Chief (949) 644.3701 / Administration (949) 644 -3654 /Patrol -Traffic (949) 644-37421 Detectives (949) 644.3790 C�- Department of Alcohol Beverage Control, our department will recommend conditions as necessary to maintain the health, safety and welfare of the community. For police services information refer to the attached report by Crime Analyst Paul Salenko. Signs and Displays: Mrs. Overstreet stated the signs for the location will be "elegant and understated" and designed to comply with city conditions as to sign type, size and location. Hours of Operation: According to Mrs. Overstreet, the operating hours will be between 10:00 A.M. to 11:00 P.M. Friday and Saturday 10:00 A.M. to 12:00 Midnight for both the retail and on -sale operations. Preventive Design: The Police Department has no recommendations. Security The Police Department has no additional recommendations. Emplovee Training: Require all owners, managers and employees serving and /or selling alcoholic beverages to undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. Additional Comments: None CSO Susan Seviane Vice and Intelligence Unit lob City of Newport Beach Police Department Memorandum October 8, 2002 TO: Bill Cunningham, Staff Planner FROM: Paul Salenko, Crime Analyst SUBJECT: Alcohol Related Statistics At your request, our office has reviewed police services data for the Overstreet's Wine Merchant and Wine Bar at 3400 Via Lido. This area encompasses our reporting district (RD) number 15 as well as part of Census Tract 635. This report reflects City of Newport Beach data for calendar year 2001, which is the most current data available. Calls for Service Information City wide there were 55,291 calls for police services during this time, of which 5,658 were in RD 15. A "call for service' is, any contact of the police department by a citizen which results in the dispatching of a unit or causes the contacted employee to take some sort of action, such as criminal investigations, alarm responses, traffic accidents, parking problems, and animal control calls, etc. Crime Information There were 6,955 crimes reported to the Newport Beach Police Department during this period. Of this total, 2,852 were Part One Crimes. Part One crimes are the eight most serious crimes (Homicide, forcible Rape, Robbery, Aggravated Assault, Burglary, Larceny- theft, Auto Theft and Arson) as defined by the FBI in the Uniform Crime Reports. The remaining 4,103 were Part Two crimes. The Part One crime rate for the entire city during this same period was 3,770.24 per 100,000 people. The national Part One crime rate was 4,124.0 per 100,000 people. Crimes RD 15 Newport Beach California* National* Part 1 367 2,852 1,266,714 11,605,751 Part 2 912 4,103 N/A N/A Part 1Crime Rate 12,981.96 3,770.24 3,739.7 4,124.0 The number of active ABC licenses in this RD is 70 ** This reporting district had a total of 1,279 reported crimes as compared to a City wide reporting district average of 211 reported crimes. This reporting district is 1,068 crimes or 506.86% above the City wide reporting district average. This location is within an area where the number of crimes is at least 75% higher than the average of all reporting districts in the City as outlined in the City Council "K -7" policy. Arrest Information There were 137 DUI arrests and 476 Plain Drunk arrests in this area during this same period as compared to 1,769 for the entire city. This RD amounts to 34.81 % of the DUI /Drunk arrests made in the entire City. According to a recent national study by the Department of justice, more than 36% of adult offenders convicted of crimes in 1996 had been drinking at the time of their arrest. Arrests RD 15 Newport Beach California* National* (DUI/Drunk) 613 1,769 N/A N/A All Arrests 892 3,629 1,408,904 9,123,428 Additional Information The Alcoholic Beverage Outlets ordnance states that the Planning Commission shall consider the crime rate in the adjacent reporting districts. The two adjacent reporting districts you requested are RD 16 and RD 13. Crimes RD 16 RD 13 Part 1 178 101 Part 2 424 161 Crime Rate 6,747.54 5,528.19 Arrests (DUUDrunk) 221 58 All Arrests 354 114 Calls For Service 3,564 2,132 Number of active ABC licenses 5 ** 5 ** Note: It is important to remember that when dealing with small numbers any change greatly affects any percentage changes. The population figure used for the Crime Rate was 75,645. *These numbers are from the 2000 Uniform Crime Reports, which is the most recent edition. * *The number of active ABC licenses is the total of all types of licenses known to the police department as of the date of this document. If you are in need of any further assistance, please contact me at (949) 644 -3791. Paul Salenko Crime Analysis Unit tp� I EXHIBIT 7 PROJECT PLANS \b1 Al E4 .�_..� ' � Yid r aj ..i- a��qq11�� �J,••• F1 4� lLi F tlW >g!fa .T.1� J S ✓n . 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