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HomeMy WebLinkAboutExhibit 28Exhibit 28 wig CITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY Robin Clauson, City Attorney January 4, 2008 VIA FACSIMLE (949) 263 -0229 & U.S. FIRST CLASS MAIL Michel Cho, Esq. BERNARD & ASSOCIATES 3991 McArthur Blvd. Suite 340 Newport Beach, CA 92660 RE: Fury Rok & Roll Sushi 4221 Dolphin Striker Way, Newport Beach Revocation of Conditional Use Permit No. 3162 Dear Mr. Cho: Our office is in receipt of your correspondence dated January 4, 2008. In your correspondence, you contend that the City has not been forthright in its dealings with Fury. Our office disagrees with this position and contends that it is Fury's failure to comply with the terms of Conditional Use Permit No. 3162 ("Use Permit ") and to provide requested information that left the City with no choice but to bring this matter to the Planning Commission so it can consider revocation of the Use Permit. As you will recall, at the October 18, 2007 meeting, City staff put Fury on notice of the violations of Use Permit No. 3162. In addition, On October 23, 2007, the City sent you the attached correspondence outlining the requirements of the Use Permit and a schedule for complying with certain conditions set forth therein. Rather than take these issues seriously and correct the violations of the Use Permit, Fury decided to continue to violate the terms of the Use Permit and not submit the requested information in accordance with the schedule set forth in the correspondence. For instance, the City requested that Fury explain why it could not conduct the certified training program until December 20, 2007 by November 7, 2007. No response was received to this request for information. Furthermore, your office never informed the City that this training had been completed or that you had elected to have the training onsite as opposed to attending the training at the Newport Beach Police Department on December 20, 2007. Until today, the City was unaware that any training had occurred. 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92658 -8915 �� Telephone: (949) 644 -3131 • rax: (949) 644 -3139 • www.city.newport- beach.ca.us Michel C. Cho January 4, 2008 Page 2 Similarly, the City requested that Fury submit the quarterly gross receipts by November 21, 2007. As you will recall, this date was chosen because Fury informed City staff that this information would be available by November 21, 2007. To date, the documents used to determine the gross sale of food and alcoholic beverages have not been submitted to the City. In fact, the only information that has been submitted is a summary report that was submitted to our office today. In addition, the City requested that a security plan be submitted by November 21, 2007. On November 8, 2007, Mike Murray of MPP Security and Bodyguards, contacted the Newport Beach Police Department with "Draft 1, The Basics," as Fury's Security Plan. The plan was not very comprehensive, but it did include a section stating that they were "exploring putting a uniformed security guard in the parking lot." An officer discussed the "draft" plan with Mr. Murray and explained that the security plan would need more detail and that Fury needed to authorize submission of the plan and indicate they intended to implement the security plan. Until today, neither Mr. Murray nor the Fury submitted a security plan that was authorized by Fury for Newport Beach Police Department review. Moreover, despite your contentions to the contrary the Newport Beach Police Department and Code Enforcement Unit have continued to document violations of the Use Permit that occurred after the October 18, 2007 meeting. For instance, the Newport Beach Police Department has documented that food service is not available until close and that the employees are not utilizing the offsite parking as required by the Use Permit. Rather than provide you with a laundry list of the violations in this correspondence, our office will provide you with the staff report supporting the initiation of revocation proceedings as well as the accompanying documents once the staff report is finalized. All that being said, our office does appreciate your submitting the security plan, summary of gross receipt sales and the attendance roster. In regards to the security plan, this information will be forwarded to the Police Department for review. In regards to the Department of Alcohol Training, the City would like to get a current list of employees so it can determine whether all of the employees attended the training. The information on the attendance sheet is non - descriptive and our office will also forward the roster to the Newport Beach Police Department so they can determine whether the training is sufficient. Finally, in regards to the gross receipts, please provide the City with the supporting documents so we can verify the information related to the summaries you have provided. In addition, the City requests a summary similar to the December 2007 summary for the months of October 2007 and November 2007, as well as all supporting documents. 4a Michel C. Cho January 4, 2008 Page 3 Given the significant violations of the terms of the Use Permit, our office will advise the Planning Department to keep the January 17, 2008 initiation of revocation proceeding on calendar. However, our office believes it is in your client's interest to submit the information requested herein so that the Planning Commission can make a decision being fully informed of all of the facts. Please do not hesitate to contact me at (949) 644 -3131 if you have any questions. Very truly yours, OIL-�c ff--L� Aaron C. Harp, Assistant City Attorney Enclosure cc: David Lepo, Director, Planning Department (w /Enc.) Patrick Alford, Senior Planner, Planning Department (w /Enc.) F. Xusers M.atlshared\CodeEnforce\Dolphin, 4221UetterWrevocationCUP.doc aa� Y 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 Permit") 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, 1 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 Sa fety & Welfare Condition No 27 Nuisances & Condition No.. 36 — Security Plan: Condition No. 6 provides that "[tjhe 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 "[tjhe 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 Office Box 1768 • Newport Beach, California 92658 -89I5 Telephone: (949) 644 -3131 • Fax: (949) 644 -3139 • www.city.newport- beach.ea.us �a� Mr. Michel C. Cho October 23, 2007 Page 2 Condition No. 36 provides that "[pjrior 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 possession; (2) Battery: (2) Fighting in public; (1) Misuse of Access card; (1) Vehicle vandalism; (1) Cadacking; (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 Poiice Department by November 21, 2007 and take all necessary action to control its patrons forthwith. Condition No. 21 - Maximum Occupancy: This condition provides that "[sjtrict 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. A�) 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 "[tjhe approval of this permit does not permit the premises to operate as a bar, tavern, cocktail lounge, nightclub or commercial recreation and entertainment use as defined in Section 20.050.0501" Newport Beach Municipal Code § 20.05.050(K) provides that an eating and drinking establishments are "[bjusinesses 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 "[ ejstablishments 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 "[tjhe type of alcoholic beverage license issued by the Califomia 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 "[ ajuthorizes 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 V` U' 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 "ft]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 Proaram: This condition provides that "fa]il 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 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— Plot/Floor Plan: This condition provides that ".Rlhe restaurant operation shall be in substantial conformance with the approved plot plan and floor plan, dated received June 3, 2006." 0 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 property can be inspected by November 21, 2007. Condition Nos. 40 and 41— Doors: These donditions 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 — Parkin 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, "[t]he 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 "[f]ull 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. a� 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, . Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ach/ ksp 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 FiUs=ICAMharOAOfq dsWWAMChoUPwmMmsmeangdoc A�'