HomeMy WebLinkAbout4.0_Discussion of Operator License_PA2010-041CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
February 17, 2011
Agenda Item 4
SUBJECT: Discussion of Operator License Ordinance (PA2010 -041)
PLANNER: Jaime Murillo, Associate Planner
949 - 644 -3209, jmurillo(a-)newportbeachca.gov
ISSUE
On January 25, 2011, the City Council adopted Ordinance No. 2011 -002 (Attachment
No. PC1) amending the Municipal Code to incorporate a new chapter (Chapter 5.25)
that will require operators of certain establishments that offer alcoholic beverages for
on -site consumption in combination with late hours, entertainment, and /or dance to
obtain an Operator License. The Ordinance will become effective on February 24, 2011.
The intent of this agenda item is to provide the Planning Commission with an overview
of the Ordinance and answer any questions the Commission may have. The attached
January 11, 2011, City Council staff report (Attachment No. PC2) outlines the
framework of the Ordinance and discusses how the new Operator License will be
administered and enforced. The January 25, 2011, City Council staff report is also
attached (Attachment No. PC3), which outlines certain modifications the Council made
to the draft ordinance.
It is important to note that the new Operator License requirement does not modify the
existing requirements of the Zoning Code for certain establishments to obtain a
conditional use permit, but rather provides an additional enforcement tool that would
allow for greater control and regulation of an operation once a use permit has already
been issued. With that said, a condition of approval for new use permits will include a
requirement for operators to obtain and maintain an Operator License in order to enjoy
the privileges of late hours, entertainment, or dancing.
Prepared by: Submitted by:
Jai a Murillo, Associate Planner Oatrick J. Alford, Planning Manager
ATTACHMENTS
PC 1 Ordinance No. 2011 -002 (Chapter 5.25- Operator License)
PC 2 January 11, 2011, City Council staff report
PC 3 January 25, 2011, City Council staff report
FAUSERS\PLN \Shared\PA's \PAs- 2010\PA2010- 041\Planning Commission\20110203 PC rpt.docx
Attachment No. PC 1
Ordinance No. 2011 -002
ORDINANCE NO, 2011-002
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF NEWPORT BEACH, ADDING CHAPTER
5.25 TO THE CITY OF NEWPORT BEACH MUNICIPAL
CODE TO REQUIRE ESTABLISHMENTS THAT OFFER
ALCOHOLIC BEVERAGES FOR ON -SITE
CONSUMPTION IN COMBINATION WITH LATE
HOURS, ENTERTAINMENT, OR DANCING TO OBTAIN
AN OPERATOR LICENSE (PA2010 -041)
WHEREAS, the City of Newport Beach ( "City') is a charter city, governed by a
charter adopted by the citizens of the City; and
WHEREAS, Article XI, Section 5 of the Constitution of the State of. California
authorizes charter cities to enact ordinances in respect to their municipal affairs; and
WHEREAS, the City finds and declares that the majority of establishments which
provide alcoholic beverages for on -site consumption in combination with late hours,
entertainment, and /or cafe dance have modes of operation and location attributes which
allow them to appropriately provide service to the residents and visitors of the City of
Newport Beach; and
WHEREAS, the City finds and declares that the foregoing notwithstanding,
absent appropriate controls, alcoholic beverages for on -site consumption in combination
with late hours, entertainment and /or cafe dance increases the potential for operational
impacts including, but not necessarily limited to, noise, loitering, litter, and disorderly
conduct by patrons; and
WHEREAS, the City finds and declares that the cited impacts affect both the
neighborhoods in which such establishments are located and the public safety
resources of the City of Newport Beach; and
WHEREAS, the City finds and declares that the cited impacts relate largely to the
operation of the establishment rather than to its design or architecture; and
WHEREAS, the City finds and declares that in order to provide an appropriate .
level of control to such uses and to provide the means by which public safety can be
maintained, the regulation of operators provides the most direct means of enforcing
appropriate operational controls on establishments which provide alcoholic beverages
for on -site consumption in combination with late hours; entertainment, and /or cafe
dance; and
WHEREAS, the City finds that the proposed code amendment will not result in a
direct or reasonably foreseeable indirect physical change in the environment (Section
15060(c)(2) of the California Environmental Quality Act Guidelines); and
WHEREAS, this agenda item has been noticed in accordance with the Ralph M.
Brown Act (72 hours in advance of the public meeting). The item appeared upon the
agenda for this meeting which was posted at City Hail and on the City website.
NOW, THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
SECTION 1: Chapter 5.25 of the Newport Beach Municipal Code is hereby added to
read as follows:
Chapter 5.25
OPERATOR LICENSE FOR ESTABLISHMENTS OFFERING ALCOHOLIC
BEVERAGES FOR ON -SITE CONSUMPTION IN COMBINATION WITH LATE
HOURS, ENTERTAINMENT, AND /OR DANCE
5:25.010 License Required.
No person or entity shall operate, or engage in, any business or commercial enterprise
defined as "Bar, Lounge, and :Nightclub ", or which does or intends to offer alcoholic
beverages for on -site consumption in combination with "Food Service with Late Hours ",
as defined at Chapter 20.70 of this Code or as same . may be amended from time to
time, or any business or commercial enterprise that does or intends to offer alcoholic
beverages for on -site consumption in combination with "Entertainment' as defined at
Chapter 5.28 of the Code, or "Cafe Dance" as defined at Chapter 5.32 of this Code, until
that person or entity has first obtained an Operator License pursuant to this chapter.
5.25.020 Applicability to Existing Businesses and Enterprises.
The provisions of this chapter shall apply prospectively and shall not operate to revoke
any valid permit or other approval in effect as of the date of the ordinance codified in
this chapter. The foregoing notwithstanding, the provisions of this chapter shall be
deemed to require an Operator License in any of the following instances:
A. The approval or amendment of a use permit, as required. by Title 20 of this
code.
B. The issuance of a building permit for modifications "comprising a change in the
type of occupancy.or an increase in the maximum occupant capacity of an
establishment, es defined by the Uniform Building Code.
C. As a result of a negotiated restitution or agreement to resolve or settle any
administrative, civil, or criminal matter relating to any violation of this Code.
D. As required by an order of Judgment In a civil or criminal case brought by the
City of Newport Beach.
E. Transfer of a business operating pursuant to an issued Operator License, as
required by Section 5.25.070 of this chapter.
F. The re- establishment of a business or commercial enterprise subsequent to its
loss of non - conforming status as set forth in Chapter 20.38 of this Code.
5.25.030 Application for an Operator License.
Applications for an Operator License shall be filed with the Chief of Police on forms
supplied by the City, and shall be accompanied by a fee established by resolution of the
City Council, which shall be no more than necessary to cover the costs of processing
the application and investigation of the contents and statements therein. Where an
Operator License application is required in relation to the processing or amendment of a
use permit required by Title 20 of this Code, such application may be filed and
processed concurrently. The following provisions will apply in cases where a use permit
and Operator License are concurrently processed:
A. Notwithstanding Paragraph 5.25.060 below, the Police Chief shall not be obligated
to issue a determination within 45 days of the filing of a complete application for an
Operator License if the processing of the use permit extends beyond that time limit;
and,
B. An Operator License processed concurrently with a use permit shall not become
effective prior to the effective date of the use permit.
5.25.040 Application Requirements.
The following information shall be submitted to the Chief of Police by the business
owner at the time of submitting an application for an Operator License. Such
information shall be submitted in accordance with forms, drawing instructions, and in a
quantity of copies as determined by the Chief of Police:
A. A description of business or commercial enterprise and anticipated occupancy;
B. A site plan describing the building and /or unit proposed for the premises and a fully
dimensioned floor plan, including outdoor dining areas;
C. A plan of operations describing the following:
1. The type of Alcohol Beverage Control License held or sought;
2. A description of any proposed nature of entertainment and /or dance use of the
premises;
3. The hours of operation for the business or commercial enterprise, at minimum
indicating the hours of employees on site and hours open to patrons;
4. A security plan, if any, addressing such matters as personnel, the functions of
those personnel and employee training;
5. A plan, if any, for contact with the Police Department, neighboring residents or
businesses in the event of planned activities or emergencies; and
6. Features, if any, in the method of operation which may be material to the
consideration by the Chief of Police in issuing the permit.
D. The application shall contain the following information:
1. The business owner's name, residence street address, and mailing address, if
different, and California driver's license number and any and all aliases;
2. The name under which the business or commercial enterprise is to be operated;
3. The telephone number of the business or commercial enterprise and the address
and legal description of the parcel of land on which the enterprise is located;
4. The date on which the business owner acquired the business or commercial
enterprise for which the permit is sought, and the date on which the business or
commercial enterprise began or will begin operations at the location for which the
permit is sought;
5. If the business or commercial enterprise is owned and /or operated by a
corporation, or other limited liability entity, the name of each officer and director
of the corporation. If the enterprise is owned and /or operated by a partnership,
the name of each general partner of the partnership;
6. A statement under oath that the business owner has personal knowledge of the
information contained in the application and that the information contained is true
and correct;
7. A statement that the business owner has read and understands the provisions of
this chapter;
8. A statement whether the business owner previously operated in this or any other
County, City or State under an entertainment establishment license /permit or
similar business license, and whether the owner has ever had such a license
revoked or suspended and the reason therefore, and the business entity or trade
name under which the business owner operated that was subject to the
suspension or revocation; and
9. If the premises are being rented or leased or being purchased under contract, a
copy of such lease or contract shall accompany the application.
5.25.050 Issuance of License — Criteria and Findings
A. Upon receiving an application for an Operator License, the Chief of Police shall
conduct an investigation, which may include referral of the application to other City
departments, including but not limited to Fire, Planning, Building and%r Code
Enforcement, to determine if the proposed business is in compliance with this
chapter and other applicable provisions of this Code. Each department shall make
written recommendations to the Chief of Police.
B. At least 21 calendar days prior to the decision on the issuance of a license, notice
shall be mailed to the applicant and all owners of property within 300 feet, excluding
intervening rights -of -way and waterways, of the boundaries of the site, as shown on
the last .equalized assessment roll or, alternatively, from such other records as
contain more recent address. The notice shall indicate that written comments to the
decision of the Chief of Police will be accepted until the date of the decision
indicated on the notice.
C. Approval of an .Operator License pursuant to this chapter shall be subject to the
Chief of Police making each and all of the following findings:
1. The business or enterprise is proposed to be located in a zone permitting the
proposed use under Title 20 of this Code, and is subject to such use permits as
may be required;
2. In the case of a business or enterprise offering "Entertainment," as defined, the
premises meets all of the criteria in Chapter 5.28.040.B.2 -7;
3. The site plan and proposed premises improvements as proposed, or as subject
to such conditions as are attached to the approval, are consistent with the use
and the plan of operations; and
4. The plan of operations as proposed, or as subject to such conditions as are
attached to the approval, is adequate in light of the neighborhood in which the
business or enterprise is located and supports the public health, safety and
welfare of the community.
D. The Chief of Police, at the time of license approval may attach additional conditions
and requirements to the license as may be determined to be necessary in order to
make the foregoing findings. In no case shall the conditions be inconsistent with, or
less restrictive than, those required by any applicable use permit. Such additional
conditions may include, but not necessarily be limited to:
1. An obligation to comply with Title 20 of this Code, all conditions of approval of
any.applicabie use permit, and any other applicable provision of the Municipal
Code;
2. Hours of operation for the enterprise or business, or any particular activity in part
thereof, including but not limited to commercial deliveries, food service, dancing,
live entertainment, or sound amplification for entertainment purposes;
3. Exterior lighting, traffic management devices, security facilities or other such
appurtenances, so long as such improvements may be constructed or made in
compliance with other applicable provisions of this Code;
4. Hiring, training, qualifications, and record - keeping requirements for employees,
staff and security personnel of the business or enterprise;
5. A plan and schedule of the frequency of on -site compliance reviews of the
business or enterprise by the Police Department or other agents of the City of
Newport Beach;
6. The development and implementation of written plans by the licensee
addressing how the licensee will meet the requirements of this chapter and may
include crowd management, parking management, noise management,
complaint response, and performance improvement; and
T. Specified provisions regarding the level and methods of measurement of noise
to limit or prohibit audible sound at the property line of the establishment.
5.25.060 Notice of Determination
A. Except in such cases as provided in paragraph 5.25.030.A, above, the Chief of
Police shall make a determination on an application for an Operator License within
45 days of such application being. deemed complete.
B. The applicant shall be served with written notice of the decision, including the
findings made by the Chief of Police in conditionally approving or denying the
Operator License. Notice shall be personally served or served by deposit in the
United States mail, first class postage prepaid, at the address shown on the
application. Service shall be deemed complete upon personal service or deposit in
the United States Post Mail.
C. The determination of the Chief of Police to deny or to place conditions upon the
approval of an Operator License shall be appealable by the applicant or any
interested party. Such appeal shall be made in writing to the City Manager, within
15 days of.the postmark date of the Chief of Police's notice of decision. The appeal
shall set forth the particular condition and the reasons that the applicant or any
interested party believes the findings or decision is in error. The City Manager shall
make a determination on the appeal based on the application materials, the written
determination of the Chief of Police and the written appeal of the applicant or any
interested party. The City Manager may take any of the following actions on the
appeal:
a. Deny the appeal and affirm the determination of the Chief of Police and the
conditions contained therein; or,
b. Approve the appeal and /or approve or modify an appealed condition; or,
c. Refer the application to the Chief of Police for further investigation and
determination to be completed by a date certain.
D. The action of the City Manager to deny the appeal and affirm the determination of
the Chief of Police or to approve the appeal and /or approve or modify an appealed
condition shall be final, any other provision of this Code to the contrary
notwithstanding.
5.25.070 Operator License Nontransferable.
No Operator License issued pursuant to this chapter shall be sold, transferred, or
assigned by any license holder, or by operation of. law, to any.other person, group,
partnership, corporation or any other entity, and any such sale, transfer or assignment,
or attempted sale, transfer or assignment shall be deemed to constitute a voluntary
surrender of such license, and such license shall be, thereafter, null and void. A license
held by an individual in a corporation or partnership is subject to the same rules of
transferability as contained above. License shall be valid only for the exact location
specified in the license.
5.25.080 Revocation, Suspension or Modification of License for Cause.
The Chief of Police may commence a process to revoke, suspend or modify an
Operator License . issued under the provisions of this chapter should there be
reasonable suspicion of any of the following:
A. The licensee has ceased to meet the requirements for issuance of license;
& The applicant gave materially false, fraudulent or misleading information within the
application;
C. Impacts emanating from the establishment for which the license was issued has
substantially interfered with the peace and quiet of the neighborhood;
D. The licensed business or activity has operated in violation of any of the requirements
of this chapter, the license as issued, or any condition thereof.
The Chief of Police shall notify the operator of the commencement of such revocation,
suspension or modification process and shall conduct an. investigation to determine if,
and to what degree, one or more of the foregoing has occurred. Upon completion of the
investigation, the Chief of Police may add, delete or modify the license conditions. The
Chief of Police shall notify the applicant regarding the determination of the Operator
License, on the outcome of the investigation, and the action taken. The applicant or any
interested party may appeal a determination or an added or modified condition.of
approval to City Manager, in the manner set forth in 5.25.050.0 -D, above.
5.25.090 Licenses and Fees Not Exclusive.
Fees and licenses required by this chapter shall be in addition to any license, permit or
fee required under any other chapter of this Code.
5.25.100 Penalty.
A. Any violation of this chapter is subject to those remedies provided for in Chapters
1.04 and 1.05 in addition to any other remedies allowed by State and Federal law.
B. Any violation of this chapter is hereby declared to be a public nuisance. (Ord. 2009-
27 § 1 (part), 2009)
SECTION 2: If any section, subsection, sentence, clause or phrase of this ordinance is,
for any reason, held to be invalid or unconstitutional, such decision shall not affect the
validity of constitutionally of the remaining portions of this ordinance. The City Council
hereby declares that it would have passed this ordinance, and each section,
subsection, clause or phrase hereof, irrespective of the fact that any one or more
sections, subsections, sentences, clauses and phrases be declared unconstitutional.
SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of this
ordinance. The City Clerk shall cause the same to be published once in the official
newspaper of the City, and it shall be effective thirty (30) days after its adoption.
.SECTION 4: This ordinance was introduced at a regular meeting of the City Council of
the City of Newport Beach, held on the 11th day of January 2011, and adopted on the
251h day of January, 2011, by the following vote, to wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS
ABSENT COUNCILMEMBERS
MA
ATTEST:
LEILANI BROWN, CITY CLERK
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By( Y Y ` I
DAVID R. HUNT, CITY A ORNEY
Attachment No. PC 2
January 11, 2011 City Council Staff Report
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 4
January 11, 2011
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Planning Department
Jaime Murillo, Associate Planner
949 - 644 -3209, imurilloCaD_newportbeachca.Qov
SUBJECT: Municipal Code Amendment to Require an Operator License for
Certain Establishments that Offer Alcoholic Beverages for On -Site
Consumption in Combination with Late Hours, Entertainment, and /or
Dance (PA2010 -041)
ISSUE
An amendment to the City of Newport Beach Municipal Code incorporating a new °
chapter (Chapter 5.25) that will require establishments that offer alcoholic beverages for
on -site consumption in combination with late operating hours, entertainment, and /or
dancing to obtain an Operator License.
1. Introduce Ordinance No. 2011- (Attachment No. CC1) amending the
Newport Beach Municipal Code and incorporating Chapter 5.25 establishing the,
requirement for an Operator License and pass to second reading on January 25,
2011.
2. Adopt Resolution No. 2011 - (Attachment No. CC2) establishing the
application fee for an Operator License.
BACKGROUND
Study Session Discussion
At the April 27, 2010 Study Session, the City Council heard a staff presentation related
to the potential regulation of businesses with on -sale alcohol licenses that are open late
hours or offer entertainment (City Council Minutes- Attachment No. CC3). Council
Operator License Ordinance
January 11, 2011
Page 2
Members expressed their concerns and indicated support of an ordinance that would
require such establishments to obtain an Operator License. The license would:
Be issued to the operator and not be transferable to a subsequent new owner of the
establishment;
Be revocable for cause should an establishment be the source of nuisance; and,
Apply to establishments that require a new use permit, or an amendment of an
existing use permit, per the Zoning Code.
DISCUSSION
Summary of the Proposed Chapter
Who would be regulated, and by whom? The proposed Chapter 5.25 would require an
Operator License for businesses which constitute a Bar, Lounge, or Nightclub', or other
businesses which offer alcoholic beverages for on -site consumption in combination with
the operation of Late Hours2, Entertainment3, or Cafe Dance 4. The Operator License
allows for the enhanced control of noise, loitering, litter, disorderly conduct,
parking /circulation, and other potential disturbances related to the operation of an
establishment where alcohol is dispensed. Some key facets of the regulation would be:
The license would be issued and enforced by the Chief of Police, with appeals of all
such actions to the City Manager.
• The license would not be transferable if the operator of the establishment changes.
Should cause arise from the operation of the business, the license could be subject
to revocation, suspension and /or amendment by the Chief of Police. The Chapter
contains a due process whereby such decisions, as well, would be appealable to the
City Manager.
' Bar, Lounge, and Nightclub is defined as an establishment that sells or serves alcoholic beverages for consumption on the
premises and is holding or applying for a public premise license from the California State Department of Alcoholic Beverage Control
(ABC) (i.e., ABC License Type 42 [On Sale Beer & Wine - Public Premises], ABC License Type 48 [On Sale General- Public
Premises), and ABC License Type 61 [On Sale Beer - Public Premises)). Persons under 21 years of age are not allowed to enter and
remain on the premises. (NBMC Section 20.70.020)
2 Late Hour Operations is defined as facilities that provide service after 11:00 p.m. (NBMC Section 20.70.020)
Entertainment is defined as any act, play, burlesque show, revue, pantomime, cabaret, fashion or style show, scene, dance, song,
song and dance act, or instrumental music participated in by one or more employees, guests, customers or any other person or
persons. (NBMC Section 5.28.010)
4 Cafe Dance is defined as any dance which is open to the public without the payment of an admission fee, which is conducted in a
restaurant, cafe, night club, bar, coffee house, or other place where food or beverages are sold for consumption on the premises.
(NBMC Section 5.32.010)
Operator License Ordinance
January 11, 2011
Page 3
Would existing businesses be affected? The Chapter would be implemented
prospectively and not applicable to existing establishments, unless:
• Application for, or modification of, a use permit is required. by the Zoning Code.
• Modifications are proposed to an establishment that would change the occupancy
type or increase occupancy capacity, as defined by the Building Code.
• Re- establishment of a business after a previous non - conforming status is lost
The Chapter also includes the provision that an Operator License may also be required
from an establishment's operator as an outcome of an enforcement action, either by
being required as judgment in favor of the City or as part of a compliance agreement
voluntarily entered into by the operator to remedy a code violation.
How would the Operator License be processed? Applicants for an Operator License
would submit an application to the Chief of Police, who would have 45 days to render a
decision. The Operator License would be processed concurrently in cases where a use
permit or an amendment to a use permit is required by the Zoning Code, which will
likely comprise the majority of such applications. In such instances, the 45 -day
limitation would not apply, and the Operator License would be issued upon the effective
date of the new or amended use permit.
The application for an Operator License would require both illustrative plans for the
establishment and a written plan of operation. If the required findings related to
compliance with the Municipal Code and the general public health, safety and welfare
are established, the Operator License would be issued by the Chief of Police. The
Operator License would require Code compliance and may be subject to certain specific
conditions on operations, including limits on time for particular activities (e.g. permitted
hours for live entertainment or dancing), certain physical improvements to the site (e.g.
signage, sound attenuation, etc.), and security provisions (e.g. security plans and
personnel, crowd management, noise management, etc.).
Would the Operator License replace existing permit requirements? The Municipal Code
currently regulates the sale of alcohol and the operation of similar businesses in a
number of ways, including a Zoning Code requirement for a use permit. Elsewhere, the
Municipal Code provides for the administrative issuance of Live Entertainment Permits
(Chapter 5.28) and Cafe Dance Permits (Chapter. 5.32). At this time, staff does not
propose amendments to these processes or permits, which serve slightly different
regulatory functions and operate under slightly different criteria. However, staff is
sensitive to the overlap in these permits. In light of the anticipated applications for use
permit and use permit amendments related to this regulation, staff recommends that the
City Council move forward with this action at this time. Staff would welcome the City
Operator License Ordinance
January 11, 2011
Page 4
Council's direction to staff to evaluate the related permits, inventory the holders of those
permits, and return with Municipal Code refinements to address redundancies.
How much would the Operator License Cost? Staff has reviewed the time and
processing needs for the application of a new Operator License and has estimated the
average unit cost recovery amount to be $656.00.
Should the City Council decide to adopt and pass the subject ordinance for second
reading, the City Council should also adopt the attached draft resolution establishing the
application fee. The resolution has an effective date of January 25, 2011, to coincide
with date of the second reading of the ordinance.
How would the Operator License be Enforced?
The proposed ordinance provides for direct, tailored enforcement of City regulations and
the conditions of the Operator License. Issued licenses would be enforced by the
Police Department. Because the license would contain operating conditions, rules
would be spelled out for each particular business, making clear the performance
standards that would need to be maintained. If significant problems with the operation
are found to exist subsequent to the issuance of a license, or if the conditions of the
license are violated, the Police Department may modify .(i.e. further restrict hours,
prohibit live entertainment, etc.), suspend, or revoke the license. Operators failing to
operate within the conditions of a license or refusing to secure a license may be issued
administrative citations and may be prosecuted for a misdemeanor. An appeal process
involving review by the City Manager and litigation would still be available to an
aggrieved operator. The ability of the Police Department and the operator to enter into
discussion on how to resolve problem operations or events through the existence of a
license should simplify efforts to achieve compliance for the benefit of, both, law
enforcement and Operator License holders.
Environmental Review
The Code Amendment is not subject to the California Environmental Quality Act
(CEQA) because:
1. The proposed Code Amendment will not result in a direct or reasonably
foreseeable indirect physical change in the environment (Section 15060(c)(2) of
the CEQA Guidelines).
2. The proposed Code Amendment will not result in physical changes in the
environment different in any way from those changes which are controlled and
would result from the outcome of other processes which are simultaneously
applicable.
Operator License Ordinance
January 11, 2011
. Page 5
3. The Code Amendment is covered by the general rule that CEQA applies only to
projects that have the potential for causing a significant effect on the environment
(Section 15061(b)(3) of the CEQA Guidelines).
Public Notice
This item was included on the agenda for this meeting which was posted at City Hall
and on the City's web site.
Funding Availability
The proposed Chapter provides for full cost recovery of the City's expenditures in the
review and issuance of Operator's Licenses.
Alternatives
The City Council may determine to:
1. Deny the proposed Municipal Code amendment, retaining existing controls on
establishments that offer alcoholic beverages for on -site consumption;
2. Modify the proposed Municipal Code amendment and specifically state such
modification or refer to staff for redrafting;
3. Continue the public hearing for further discussion; or
4. Provide additional direction to staff.
Prepared by:
Jaime Munllo
Associate Planner
Attachments:
Submitted by:
James aC mpbell'
Acting Planning Director
.. . - . . .� •e.• .. ,. ,. �, - - ...
CC 3 Minutes of the Study Session of the City Council, April 27, 2010
Attachment No. CC -3
April 27, 2010 City Council Minutes
City Council Study Session
CITY OF NEWPORT BEACH
City Council Minutes
City Council Study Session
April 27, 2010 — 4:00 p.m.
I. ROLL CALL
Page 1 of 4
Present: Council Member Selich, Council Member Rosansky, Mayor Pro Tem Henn, Mayor Curry,
Council Member Gardner
Excused: Council Member Webb, Council Member Daigle
II. CURRENT BUSINESS
1. CLARIFICATION OF ITEMS ON THE CONSENT CALENDAR.
In rid onse to Council Member Gardner's question regarding Item 4 (Parking Meter and
Park$ik.Lot Fee Increases), Administrative Services Director McCraner indicated that the
proposed raises are competitive with neighboring cities without having premium rates on the
weekend. Further, premium rates were not considered since the rate increase is significant
compared to the current rates. However, they can analyze utilizing premium rates further if
desired. -
In response to Mayor P o'Tem Henn's question regarding Item 5 (Landfill Rate Adjustment
for Solid Waste Disposal Agg eements), General Services Director Harmon reported that the
increase is equal to the landfill ika a increase.
Regarding Item 8 (Balboa Bouleva`fkPavement Rehabilitation), Mayor Pro Tem Henn
agreed with staffs comments relative toile quality of the work.
r.
Mayor Curry requested and received clarification from Assistant City Manager Wood that
Item 20 (Inclusionary Housing) can be continued.`'':..
Without objection, Council will be allowing staff to go over the Civic Center items (Items 22
and 23) after the discussions about the proposed at -grade parking lot at 608 East Balboa
Boulevard (Item SS3).
2. SEPARATION OF RESTAURANT USE PERMITS INTO OPERATOR AND LAND
USE PERMITS.
PowerPoint Presentation
Revised PowerPoint Presentation
Associate Planner Murillo utilized a PowerPoint presentation to discuss the problems
associated with bars and nightclubs, the criteria that changes a restaurant into a bar or
nightclub, amplified music issues, land use tools that the City utilizes, land use regulations
versus operating permits, and the use of live entertainment permits as an operating permit.
He reported on proposed revisions to the live entertainment permit and its benefits, and also
discussed more aggressive options that 1) creates a new operating permit that also regulates
entertainment in any establishment that serves alcohol; and. 2) pursues full revocation of
use permits for problem establishments with continual violations of use permit conditions.
He indicated that the amended regulations would only apply to new establishments, unless
an existing establishment amended its use permit or becomes a nuisance and is called up for
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City Council Study Session
review.
Page 2 of 4
In response to Council questions, Associate Planner Murillo reported that the City can also
regulate late operating hours and food service. Acting City Attorney Mulvihill added that
the State regulates the sale of alcohol, but the City has local control over the tone, place, and
manner of the use of an establishment and how it impacts neighborhood compatibility. She
pointed out that the City has an Alcoholic Beverage Operations (ABO) permit that applies to
existing and new establishments, establishments that never applied for the ABO permit,
and nuisance establishments. She reiterated that the proposal is to expand the permit to
also address entertainment.
Council Member Selich stated that the City is sometimes faced with the situation where
good operators sell the establishment and the permit is automatically transferred to the new
operator since it runs with the land. He indicated that the options provide the City with a
better way to deal with enforcement issues and possibly revoke the permit if necessary.
Council Member Gardner explained how this could make the City more generous in issuing
permits than it has been in the past because there will now be options. She noted that the
concept was well- accepted by the Business Improvement District members.
Mayor Pro Tem Henn expressed concern that the regulation would only apply to new
operators. Associate Planner Murillo clarified that the provisions would also apply to
current establishments seeking amendments to their permits. He added that nuisance
establishments can be called up for review at any time and that this would then apply to
them.
George Schroeder believed that this is a step in the right direction since there are problems
with some of the establishments. However, he questioned why establishments need to stay
open so late.
Joe Reiss expressed support for the more aggressive option.
Following discussion, it was the consensus of the City Council to begin the process for
implementation of the more aggressive option.
3. PROPOSED AT -GRADE PARKING LOT AT 608 EAST BALBOA BOULEVARD.
Staff Report
Assistant City Manager Wood provided a staff report and explained the difference between
Option 1 a�t,,$265,000 and Option 2 at $132,000. She also discussed the option to build a
curved wall and install a Balboa Village identification sign that would allow space for
temporary advertisement of local events.
Mayor Pro Tem Henn noted that it might be awhile before the need to build a parking
garage arises, and recommended moving forward with Option 1 since it is a more attractive
option and the revenue from'•At1 f meters could end up repaying for the cost of the
improvements. He also expressed 'support for installing the Balboa Village identification
sign.
Noting that the Balboa Village Business Improvement District (BID) is proposing to repay
the City for a portion of the cost of the sign, Council --Member Gardner suggested that they
increase their payments if their budget allows. Assistant City Manager Wood noted that
this BID has one of the lowest budgets of all the BIDS. Council Member Gardner expressed
support for Option 1. She noted that the City is trying to sae,money, but having a plain
parking lot is not the vision for the Village.
r
Council Member Selich also expressed support for Option 1 and pointed out that the sign
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Attachment No. PC 3
January 25, 2011 City Council Staff Report
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 4
January 25, 2011
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Planning Department
Jaime Murillo, Associate Planner
949 - 644 -3209, jmdrillo newportbeachca.gov
SUBJECT: Second Reading and Adoption of Ordinance No. 2011 -002 Pertaining
to a Municipal Code Amendment to Require an Operator License for
Certain Establishments that Offer Alcoholic Beverages for On -Site
Consumption in Combination with Late Hours, Entertainment, and/or
Dance (PA2010 -041)
ISSUE
The Ordinance will require establishments that offer alcoholic beverages for on -site
consumption in combination with late operating hours, entertainment, and /or dancing to
obtain an Operator License. The Ordinance also includes a process to appeal the
determination on an Operator License and requires the establishment of an appeal filing
fee.
RECOMMENDATION
Conduct second reading and adopt Ordinance No. 2011 -002 (Attachment No.
CC1) amending the Newport Beach Municipal Code and incorporating Chapter
5.25 establishing the requirement for an Operator License.
2. Adopt Resolution No. 2011 - (Attachment No. CC2) establishing the fee for
filing an appeal of the Chief of Police's determination on an Operator License.
Council Revisions to Ordinance
Ordinance No. 2011 -002 was introduced and considered at the January 11, 2011, City
Council meeting. A copy of the staff report is attached as Attachment No. CC3. The
Council included the following changes to the draft ordinance prior to its introduction:
Second Reading- Operator License Ordinance
January 25, 2011
Page 2
1. Within Section 5.25.050.B, include a requirement that a notice be mailed to all
property owners within a 300 -foot radius of an establishment for which an
operator is seeking a license and allow for written comments to be submitted for
consideration. Such notice shall be mailed a minimum of 21 days prior to the
decision on the issuance of a license.
2. Within Section 20.25.050.D, add a sentence clarifying that in no case shall the
conditions of an Operator License be inconsistent with, or less restrictive than,
those of required by any applicable use permit.
3. Within Sections 5.25.060.0 and 5.25.080, allow "any interested party" the right to
appeal the determination on the issuance, revocation, suspension, or
modification of an Operator License.
The revisions have been incorporated within the ordinance (Attachment No. CC1).
Appeal Fee
At the January 11, 2011, meeting, the City Council established an application fee for an
Operator License; however, an appeal filing fee was not established. Based on the
established hourly rates, the calculated appeal filing fee would be $656.00.
ENVIRONMENTAL REVIEW
The Code Amendment is not subject to the California Environmental Quality Act
(CEQA) because:
The proposed Code Amendment will not result in a direct or reasonably
foreseeable indirect physical change in the environment (Section 15060(c)(2) of
the CEQA Guidelines).
2. The proposed Code Amendment will not result in physical changes in the
environment different in any way from those changes which are controlled and
would result from the outcome of other processes which are simultaneously
applicable.
3. The Code Amendment is covered by the general rule that CEQA applies only to
projects that have the potential for causing a significant effect on the environment
(Section 15061(b)(3) of the CEQA Guidelines).
Second Reading- Operator License Ordinance
January 25, 2011
Page 3
PUBLIC NOTICE
This item was included on the agenda for this meeting which was posted at City Hall
and on the City's web site.
FUNDING AVAILABILITY
The proposed Chapter provides for full cost recovery of the City's expenditures in the
review and issuance of Operator Licenses.
Prepared by:
—Jaime Murillo
Associate Planner
Attachments:
Submitted by:
k4l
James W. Campbell
Acting Planning Director