HomeMy WebLinkAboutExhibit 18Exhibit No. 18
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CITY OF NEWPORT BEACH
OFFICE OF THE CITY ATTORNEY
Robin Clauson, City Attorney
October 23, 2007
VIA FACSIMILE (949) 263 -0229
& U.S. FIRST CLASS MAIL
Michel C. Cho
Law Offices Bernard & Associates
3991 MacArthur Boulevard
Suite 340
Newport Beach, CA 92660
RE: Fury Rok & Rol Sushi Lounge
Dear Mr. Cho:
Thank your for taking the time to meet with our office on October 18, 2007 to discuss
Conditional Use Permit 3162 ( "Use Pen-nit") and the operation of the Fury Rok & Rol
Sushi Lounge ( "Fury") which is located at 4221 Dolphin Striker Way, Newport Beach
( "Property"). Based on the meeting, I am confident that the owners of the Fury will make
the necessary modifications to ensure that their operation complies with the Use Permit.
As discussed at the October 18, 2007 meeting, our office is concerned that the Fury has
failed, in the past, to comply with conditions of approval contained in the Use Permit. To
ensure clarity, I have recounted each of the conditions from the Use Permit that were at
issue, as well as steps that will need to be taken to ensure compliance with the Use
Permit.
Condition No. 6 — Health Safety & Welfare. Condition No. 27 Nuisances &
Condition No. 36 — Security Plan:
Condition No. 6 provides that "[t]he Planning Commission may add to or modify
conditions of approval to this Use Permit or recommend to the City Council the
revocation of this Use Permit upon a determination that the operation which is the
subject of this Use Permit causes injury, or is detrimental to the health, safety, peace,
morals, comfort, or general welfare of the community."
Condition No. 27 provides that "[t]he eating and drinking establishment 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 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."
3300 Newport Boulevard • Post 0111ce Box 1768 • Newport Beach, California 92658 -8915
Telephone: (949) 644 -3131 • Fax: (949) 644 -3139 • www.city.newport- beach.ca.us
Mr. Michel C. Cho
October 23, 2007
Page 2
Condition No. 36 provides that "[p]rior to the issuance of the certificate of occupancy, the
applicant shall submit a comprehensive security plan for the permitted uses for review
and approval by the Newport Beach Police Department. The procedures included in the
plan and any recommendations made by the Police Department shall be implemented
and adhered to for the life of the use permit."
At the October 18, 2007 meeting, the City expressed concern that no security plan had
been submitted or approved in accordance with Condition 36. The City also informed
the owners of the Fury that it was extremely concerned by the number of arrests that
had occurred at the Fury and the parking lot adjoining the Property. Specifically,
between July and October 2007, Newport Beach Police Department reports indicate the
following arrests directly related to Fury: (18) Drunk in public; (2) Assaults with a deadly
weapon; (2) Cocaine possessidn; (2) Battery; (2) Fighting in public; (1) Misuse of
Access card; (1) Vehicle vandalism; (1) Carjacking; (1) Battery on a police officer; (1)
Cohabitant abuse; and (1) Selling cocaine. In addition, the Newport Beach Police
Department has documented numerous assists with breaking up fights between
intoxicated parties in Fury s parking lot near closing time. In response, the owners of the
Fury responded that they had increased security since opening, would arrange to meet
with the Newport Beach Police Department in order to develop a security plan, would
submit a security plan as required by Condition 36 and were taking steps to control their
patrons.
The City is extremely concerned about the number of arrests that are associated with
the Fury's operation. To resolve this issue, Fury will need to submit a security plan to
the Police Department by November 21, 2007 and take all necessary action to control
Us patrons forthwith.
Condition No. 21 - Maximum Occupancy:
This condition provides that "[s]trict adherence to maximum occupancy limits is -
required. Prior to the final building permits, the location of maximum occupancy
postings in sections of the building and smoking patio shall be inspected and approved
by the Building Department or Fire Department to ensure the location is readily visible
to employees, patrons and public safety personnel."
At the October 18, 2007 meeting, the City expressed concerns that the Fury was
exceeding the maximum occupancy. Specifically, the City has determined that on
August 25, 2007 there were 425 patrons inside the Fury and on September 1, 2007 there
were 363 persons inside the Fury. In response, the owners contend that the maximum
occupancy has not been exceeded and that they will ensure that the maximum
occupancy is not exceeded in the future. To ensure that this will occur, the City requests
that the Fury include in its security plan what steps it will take to ensure that the maximum
occupancy is not exceeded.
Mr. Michel C. Cho
October 23, 2007
Page 3
Condition No. 20 - Bar & Condition No. 28 Principal Use of Facility for Selling
Food:
Condition No. 20 provides that "[t]he approval of this permit does not permit the
premises to operate as a bar, tavem, cocktail lounge, nightclub or commercial
recreation and entertainment use as defined in Section 20.050.050.1."
Newport Beach Municipal Code § 20.05.050(K) provides that an eating and drinking
establishments are "[b]usinesses with the principal purpose to serve prepared food or
beverages for consumption on or off the premises." This section also defines bars and
cocktail lounges as "[e]stablishments with the principal purpose to sell or serve alcoholic
beverages for consumption on the premises or any establishment having any of the
following characteristics: (1) is licensed as a "public premises" by the California
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."
Condition No. 28 provides that "[t]he type of alcoholic beverage license issued by the
California Board of Alcoholic Beverage Control shall be a Type 47 for full alcohol
service for on -site consumption only, and only in conjunction with the service of food as
the principal use of the facility. The sale of alcoholic beverages is prohibited for off -site
consumption. Any upgrade in the alcoholic beverage license shall be subject to the
approval of an amendment to this application and may require the approval of the
Planning Commission."
According to Alcohol and Beverage Control, a Type 47 licenses "[a]uthorizes the sale of
beer, wine and distilled spirits for consumption on the licensed premises. Must operate
and maintain the licensed premises as a bona fide eating place. Must make actual and
substantial sales of meals, during the normal meal hours that they are open, at least
five days a week. Normal mealtimes are 6:00 a.m. - 9:00 a.m., 11:00 a.m. - 2:00 p.m.,
and 6:00 p.m. - 9:00 p.m. Premises that are not open five days a week must serve
meals on the days they are open. Minors are allowed on the premises."
At the October 18, 2007 meeting, the City expressed concern that the Fury is being
operated as a bar or nightclub given the fact that minors are not admitted, the Fury
becomes a club after 10:00 p.m., a limited menu was available after 11:00 p.m., dinner
patrons must vacate their seats by 10:00 p.m. and the significant sale of alcohol in
relation to food (especially after 10:00 p.m.). In response, the owners admitted that on
Thursday, Friday and Saturday evenings, they were focusing on night life activities and
that residents of the City and others were given VIP passes to enter the establishment.
The City contends that the current operation of the Fury after 10:00 p.m. on Thursday,
Friday and Saturday is that of a bar and nightclub which is not authorized by the Use
Permit. Going forward, activities such as the exclusions of minors, treating the ��,�
I
Mr. Michel C. Cho
October 23, 2007
Page 4
establishment as a club after 10:00 p.m., having a limited menu after 11:00 p.m.,
removing dinner guests after 10:00 p.m., closing the kitchen prior to closing time,
having VIP passes, and having significant sales of alcohol and limited to no food sales
will be viewed by the City as a violation of Condition Nos. 20 and 28. Our office
requests that you take all necessary actions to ensure that you are not in violation of
these conditions forthwith.
Condition No. 29 - Quarterly Gross Sales of Alcohol:
Condition No. 29 provides that "[t]he quarterly gross sales of alcoholic beverages shall
not exceed the gross sales of food during the same period. The licensee shall maintain
records that reflect separately the gross sale of food and the gross sale of alcoholic
beverages of the licensed business. Said records shall be kept no less frequently than
on a quarterly basis and shall be made available to the Department on demand."
At the meeting on October 18, 2007, the City expressed concerns regarding the quarterly
sale of alcoholic beverages in relation to food sales. In response, the owners indicated
that these records would be available by the third week in November. The City is hereby
requesting that these records be provided to the City Planning Department by November
21, 2007.
Condition No. 26 — Certified Trainina Program:
This condition provides that "[a]II 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 managers 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 within sixty (60) days upon hiring."
At the October 18, 2007 meeting, the City expressed concerns that this training had not
been completed by all employees. In response, the owners indicated that a certified
training program is scheduled for all Fury employees on December 20, 2007. The City
is requesting that the Fury provide the city with written documentation of why this
training cannot occur sooner by November 7, 2007.
Condition No. 1— PloVFioor Plan:
This condition provides that °[t]he restaurant operation shall be in substantial
conformance with the approved plot plan and floor plan, dated received June 3, 2005.'
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Mr. Michel C. Cho
October 23, 2007
Page 5
At the October 18, 2007 meeting, the City expressed concerns that modifications had
been made which were not reflected on the plot plan and floor plan. In response, the
owners indicated that only minor variations to the tables had been made. To verify
compliance with this condition, the City requests that you contact John Kappeler of the
City Code Enforcement Unit so that the properly can be inspected by November 21,
2007.
Condition Nos. 40 and 41— Doors:
These dbnditions provide that "[t]he west exit door shall swing outward and have panic
hardware" and that the "smoking patio shall have an exit gate with panic hardware." To
verify compliance with this condition, the City requests that you contact John Kappeler of
the City Code Enforcement Unit so that the property can be inspected by November 21,
2007.
Condition Nos. 3 and 5 — Parking:
These conditions provide that "[a] minimum of 16 off -site parking spaces shall be
provided on property described as Parcel No. 1 of Parcel Map 83 -705, located at 1500
Dove Street and 4141 MacArthur Boulevard. Said parking spaces shall be provided for
the duration of the restaurant use" and that, "[tjhe restaurant employees shall be
required to use the 16 off -site parking spaces."
At the October 18, 2007 meeting, the City expressed concerns that a valet parking
service was being utilized and cars were being stacked in the lot. In addition, the City
expressed concerns that the off -site lot was not being utilized for employee parking. In
response, the owners indicated that the off -site lot was being used for employee
parking and that the valet service was no longer being utilized. Provided that the lot is
utilized in accordance with Condition Nos. 3 and 5, no further action is necessary in
regards to these conditions.
Condition No. 16 - Food Service:
This condition provides that "[fjull menu food service shall be available for ordering at all
times that the restaurant establishment is open for business."
At the October 18, 2007 meeting, the City expressed concerns that full menu food
service was not available for ordering at all times that the Fury was open. In response,
the owners admitted that a limited menu was available after 11:00 p.m. and that food
service ended at 1:00 a.m. The owners also indicated that going forward they would
make the full menu available at all hours that the Fury is open. Provided that full menu
service is made available during all hours of operation, no further action is necessary in
regards to this condition.
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Mr. Michel C. Cho
October 23, 2007
Page 6
Condition No. 19 — Use of Outside Promoter:
This condition provides that "[a]ny event or activity staged by an outside promoter or
entity, where the restaurant 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 or any other form of admission charge,
including minimum drink orders or sale of drinks is prohibited."
At the October 18, 2007 meeting, the City expressed concerns regarding the use of
.outside promoters" in violation of Condition No. 19. In response, the owners
contended that they are not in violation of this condition because a fixed fee is paid to
the outside promoter and there is no profit sharing or payment based upon money
collected at the door etc ... To the extent that the Fury is being operated in
conformance with Condition No. 19, no further action is necessary in regards to this
condition.
Once again, thank you for your time and assistance in resolving these issues. If you
would like to discuss these issues or schedule another meeting, please do not hesitate to
contact me at (949) 6443131.
Very truly yours,
c^"-_ C.
Aaron C. Harp,
Assistant City Attorney for the
City of Newport Beach
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cc: Lieutenant Craig Frizzel, Newport Beach Police Department
Rosalinh Ung, Planning Department
Detective Doug Jones, Newport Beach Police Department
Ron Larson, Newport Beach Fire Department
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