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HomeMy WebLinkAboutPC2020-021 - APPROVING CONDITIONAL USE PERMIT NO. UP2017-034 AND COASTAL DEVELOPMENT PERMIT NO. CD2019-054 TO ALLOW THE CONTINUATION OF HISTORICAL PARKING WAIVERS, MODIFY HORESOLUTION NO. PC2020-021 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING CONDITIONAL USE PERMIT NO. UP2017-034 AND COASTAL DEVELOPMENT PERMIT NO. CD2019-054 TO ALLOW THE CONTINUATION OF HISTORICAL PARKING WAIVERS, MODIFY HOURS OF OPERATION, REMOVE RESTRICTIONS REGARDING ALLOWABLE NET PUBLIC AREA DURING THE DAYTIME, AND MERGE WITH ADJACENT RESTAURANT SPACE AT THE PROPERTY LOCATED AT 110 AND 114 MCFADDEN PLACE (PA2017-255) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Baja Sharkeez (“Applicant”) and Michael Fazzi (“Owner”) with respect to property located at 110 and 114 McFadden Square, and legally described as Parcel 1 of Block 128 of Resubdivision 493 (respectively referred to as “110 McFadden” and “114 McFadden” and collectively referred to as “Property”), requesting approval of a conditional use permit, coastal development permit, and a continuation of historical parking waivers. 2. Baja Sharkeez restaurant is located at 114 McFadden. The former Sol Grill restaurant is located in a vacant tenant space attached and adjacent to 110 McFadden. Applicant proposes the following changes to 110 McFadden and 114 McFadden: a. Remodel the 110 McFadden restaurant space to modernize the building and create an attached dining room to serve 114 McFadden; b. Install a retractable roof over the 110 McFadden space and open-air patio areas; c. Remove existing restriction regarding maximum allowable net public area during the day (prior to 9 p.m.) at 114 McFadden to allow full use of the space; d. Modify the opening hour for 110 McFadden and 114 McFadden from 11:00 a.m. to 9:00 a.m.; e. No modification to the closing hour for 110 McFadden which is 11:00 p.m.; f. Modify the closing hour for 114 McFadden from 2:00 a.m. to 1:30 a.m. to match the existing Alcoholic Beverage Control (“ABC”) license conditions; g. Modify the existing 110 McFadden ABC license from a Type 41 On- Sale Beer and Wine Eating Place, to a Type 47 On-Sale General – Eating Place to match the existing ABC License at 114 McFadden; and h. Restripe the onsite parking lot in the rear to retain the existing ten (10) parking spaces. Any existing unpermitted encroachments or storage areas in the parking lot would be removed prior to implementation of the project and remain clear for vehicle parking (collectively the “Project”). Planning Commission Resolution No. PC2020-021 Page 2 of 25 01-25-19 3. The Property is designated Mixed-Use Water 2 (MU-W2) by the City of Newport Beach General Plan (“General Plan”) Land Use Element and is located within the Mixed-Use Water (MU-W2) Zoning District. 4. The Property is located within the coastal zone. The City of Newport Beach Local Coast Program Coastal Land Use Plan category is Mixed Use Water (MU-W) and it is located within the Mixed-Use Water Related (MU-W2) Coastal Zoning District. 5. A telephonic public hearing was held on June 18, 2020, in the Council Chambers at 100 Civic Center Drive, Newport Beach, California, due to the Declaration of a State of Emergency and Proclamation of Local Emergency related to COVID-19. A notice of time, place and purpose of the public hearing was given in accordance with California Government Code Section 54950 et seq. (“Ralph M. Brown Act”), Chapter 20.62 and Chapter 21.62 of the Newport Beach Municipal Code (“NBMC”). Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This Project is exempt from the California Environmental Quality Act (“CEQA”) pursuant to Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. 2. The Class 1 exemption allows interior or exterior alterations involving interior partiti ons, plumbing and electrical conveyances. The Class 1 exemption includes the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical fe atures, involving negligible or no expansion of use . The Project includes the installation of a door between the two restaurant spaces and a remodel of 110 McFadden to create a retractable roof, a patio with windows, as well as interior improvements and operational adjustments related to business hours and alcoholic beverage service. No new floor area is proposed. The Project also requires improvements to install a sprinkler system for both spaces. SECTION 3. REQUIRED FINDINGS. Alcohol Sales In accordance with Subsection 20.48.030(C)(3) (Alcohol Sales) of the NBMC, the following findings and facts in support of such findings are set forth: Finding: A. The use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Zoning Code. Planning Commission Resolution No. PC2020-021 Page 3 of 25 01-25-19 Facts in Support of Finding: In finding that the Project is consistent with Section 20.48.030 of the NBMC, the following criteria must be considered: i. The crime rate in the reporting district and adjacent reporting districts as compared to other areas in the City. 1. The Property is located in Reporting District 15 (“RD 15”). The Newport Beach Police Department is required to report offenses of criminal homicide, forcible rape, robbery, aggravated assault, burglary, larceny, theft, and motor vehicle theft (all Part I crimes), combined with all arrests for other crimes, both felonies and misdemea nors (except traffic citations) to the ABC. RD 15 is the highest crime area in Newport Beach. This reporting district is reported to ABC as a high crime area as compared to other reporting districts in the City. The RD’s Crime Count is 614, which is 357 percent over the City-wide crime count average of 140. The higher crime rate is largely due to the number of visitors to the Balboa Peninsula, the high concentration of restaurants, and the high ratio of non-residential to residential uses clustered in the commercial and mixed-use districts. The McFadden Square area has historically been a business and recreation hub for residents and tourists, drawing a large number of visitors year-round but particularly in the summer months. 2. Since RD 15 has a 20 percent greater number of reported crimes than the average number of reported crimes as determined from all crime reporting districts within the City, the area is found to have undue concentration. In comparison, neighboring RD 13 (8th Street to 20th Street) is 23 percent above the City-wide average, RD 12 (B Street to 8th Street) is 9 percent above, and RD 16 (37th Street to 54th Street) is 91 percent above. Of the 38 RDs in Newport Beach, 11 are reported to ABC as high crime areas for 2019. 3. While the area does have a high concentration of alcohol licenses, both establishments are approved for alcoholic beverage service and historically have held a valid ABC license. Therefore, the Project will not result in any increase in the number of alcohol licenses. The new portion of the restaurant (110 McFadden) would keep the location’s existing closing hour of 11 p.m. daily . Therefore, there is not an increase in area used during late hours (after 11 p.m.). The new space will enhance the dining experience without increasing allowed occupancy, therefore not further contributing to the burden on police services during late night hours. The service of alcoholic beverages provides menu options for customers and potentially enhances the economic viability of the business, while the Conditional Use Permit (“CUP”) and Operator License will provide greater enforcement options. 4. The Newport Beach Police Department (“NBPD”) has reviewed the proposal and has no objection to the Project, subject to appropriate conditions of approval. The operation of the establishment includes the approved floor plan, business hours that are more restrictive at night than the current hours identified in the use permit, an improved security plan, and the requirement to obtain an operator license. Planning Commission Resolution No. PC2020-021 Page 4 of 25 01-25-19 Additionally, the updated use permit will allow the ABC Conditi ons and City’s use permit conditions to work in concert, where they currently conflict in some cases. The Operator License provides an additional tool for the NBPD to control the use, especially should objectionable activities occur at the site. ii. The numbers of alcohol-related calls for service, crimes, or arrests in the reporting district and in adjacent reporting districts. 1. The highest volume crime in this area is simple assault, which may be indicative of an overconsumption of alcohol. The highest volume arrest in the area is Public Intoxication. DUI, Public Intoxication, and liquor law violations make up 32 percent of arrests in this reporting district. In comparison, the figure for neighboring RD 13 is 26 percent, RD 12 is 28 percent, and RD 16 is 29 percent. 2. RD 15 has a higher number of arrests recorded in 201 9, compared to adjacent reporting districts. From January 1, 2019, through December 31, 2019, the NBPD reported 505 arrests in RD 15. Of those, 27 were Part I arrests. There were eight (8) arrests at this Property; however, not every arrest was related to the business and may have been related to a dispatch event in the McFadden Square vicinity. Of the eight (8) arrests, two (2) were Part I Crime Arrests and six were Part II Crime Arrests. These statistics include both properties located at 110 McFadden and 114 McFadden. 3. The NBPD reviewed the application and does not anticipate any significant increase in crime or alcohol-related incidents with the approval of this application subject to the proposed conditions of approval, which include more restrictive hours of operation at night and prohibits live entertainment and dancing. iii. The proximity of the establishment to residential zoning districts, day care centers, hospitals, park and recreation facilities, places of worship, schools, other similar uses, and any uses that attract minors. 1. The Project is located in a mixed-use zoning district which allows for residential uses when intermixed with nonresidential uses. The nearest residential zoning district and associated residential units are located approximately 50 feet west of the Property across Court Avenue. The existing and proposed front patios as well as the entrances to the business are oriented away from the residences. The existing residential units face the on-site parking lot in the rear of the building. 2. The nearest recreational facilities, the beach and Newport Pier, are located approximately 200 feet to the southwest of the Property. The nearest church, Our Lady of Mount Carmel Church, is located approximately 0.5 miles to the east of the subject property along West Balboa Boulevard. The nearest school, Newport Elementary School, is located 0.7 miles to the east of the subject property along West Balboa Boulevard. The nearest daycare center, Children’s Center by the Sea, is approximately 0.5 miles to the east along West Balboa Boulevard. The Project use is surrounded by other commercial, retail, and office uses on the ground level. Planning Commission Resolution No. PC2020-021 Page 5 of 25 01-25-19 3. The Balboa Peninsula is generally characterized by a high number of visitors, in which commercial and residential zoning districts are lo cated in close proximity to one another and eating and drinking establishments with alcohol service are common. The CUP conditions of approval that eliminate live entertainment and dancing, in conjunction with Operator License conditions of approval will help minimize nuisances that the establishment could have to surrounding uses. This will help to ensure that the use remains compatible with the surrounding community. iv. The proximity to other establishments selling alcoholic beverages for either off -site or on- site consumption. 1. The subject census tract has an approximate population of 5,726 residents with 91 active alcohol licenses, which equates to a per capita ratio of one (1) license for every 63 residents. Per the Business and Professions code, we compa re this per capita ratio to Orange County’s on-sale per capita ratio of one (1) license for every 467 residents. This location meets the legal criteria for undue concentration. 2. The per capita ratio of one license for every 63 residents is higher than all adjacent Census Tracts and the average City-wide ratio. This is due to the higher concentration of commercial land uses, many of them visitor-serving, in McFadden Square, Lido Marina Village and Cannery Village, and lower number of residential population in the RD 15 area. Nearby establishments selling alcohol include the Taco Bell Cantina, Stag Bar, Dory Deli, Blue Beet, Beach Ball, Blackie’s and several others located in the McFadden Square area. 3. While the license-to-resident ratio is higher than average and the Property is located in close proximity to other establishments selling alcoholic beverages, the physical and operational characteristics of the establishment would make the continuation of alcoholic beverage sales appropriate at this location. v. Whether or not the proposed amendment will resolve any current objectionable conditions. 1. No objectionable conditions are presently occurring at the Property. 2. The existing use permit for 114 McFadden has not been updated since 1985, and the conditions of approval are antiquated. Further, the existing permit conditions do not reflect restrictions identified in the conditions of approval for ABC’s Type 47 License. The most notable discrepancies between the ABC license and the current CUP are: 1) the ABC license prohibits live entertainment whereas the CUP does not; and 2) the ABC license requires the establishment to cease serving and allowing patrons to consume alcohol at 1:30 a.m. whereas the CUP does not. The ABC license conditions also allow the business to operate starting at 9 a.m. where the CUP allows operations starting at 11 a.m. This use permit includes the ABC conditions of approval so that both documents work in unison, making compliance less confusing and easier to accomplish for the business owner and employees. Planning Commission Resolution No. PC2020-021 Page 6 of 25 01-25-19 3. A restaurant and bar have been operating at the Property since the early 1970s. The building has been remodeled several times to accommodate different tenants. As part of the Project, the building will be updated to meet current building and safety code requirements including the installation of a fire sprinkler system. 4. All owners, managers, and employees selling alcohol will be required to complete a certified training program in responsible methods and skills for selling alcoholic beverages within 60 days of hire (or for existing staff, within 60 days of approval of this use permit). Approval of this application will require the operator to obtain an Operator License pursuant to Chapter 5.25 (Operator License for Establishments Offering Alcoholic Beverages for On-Site Consumption in Combination with Late Hours, Entertainment, and/or Dance) of the NBMC. The Operator License will provide enhanced tools to control noise, loitering, litter, disorderly conduct, parking/circulation and other potential disturbances that could result from the use, and will provide the PD with means to modify, suspend, or revoke the operator’s ability to maintain late-hour operations. Conditional Use Permit In accordance with Section 20.52.020(F) (Use Permit, Required Findings) of the NBMC, the following findings and facts in support of such findings are set forth: Finding: B. The use is consistent with the General Plan and any applicable specific plan. Facts in Support of Finding: 1. The General Plan land use designation for this site is Mixed-Use Water 2 (MU-W2). The MU-W2 designation applies to waterfront properties in which marine-related uses may be intermixed with general commercial, visitor-serving commercial, and residential dwelling units on the upper floors. The existing eating and drinking establishments with alcohol service and late hours are allowed uses. Such uses can be expected to be found in this area and are complementary to the surrounding commercial and residential uses. 2. The existing building includes both the 110 McFadden and 114 McFadden tenant spaces on a single parcel. The Project currently complies with the maximum floor area ratio allowed for the site and will not result in an increase in the floor area ratio; therefore, it is consistent with the Land Use Element development limitations. 3. The Project remodel and operational changes are for a use that is consistent with General Plan Land Use Policy LU6.8.2 (Component Districts), which emphasizes that McFadden Square should be utilized as one of the primary activity centers within the City. The modifications will allow residents and visitors to enjoy the existing eating and drinking establishment as a visitor- and local-serving convenience. 4. The Property is not part of a specific plan area. Planning Commission Resolution No. PC2020-021 Page 7 of 25 01-25-19 Finding: C. The use is allowed within the applicable zoning district and complies with all other applicable provisions of the Zoning Code and the Municipal Code. Facts in Support of Finding: 1. The Property is located in the Mixed-Use Water Related (MU-W2) Zoning District. The MU-W2 designation applies to waterfront properties in which marine-related uses may be intermixed with general commercial, visitor-serving commercial and residential dwelling units on the upper floors. The existing and proposed use of the site as a restaurant is a permitted use in the zoning d istrict with approval of a conditional use permit. 2. Restaurants have been operating at the Property since the 1970s. The applicant requests increased hours of operation in the morning and full use of the dining area during the daytime. The Project also includes a remodel to merge the two (2) tenant spaces to allow operation as a single restaurant. The Project complies with all development standards and no deviations are requested with the exception of the historical parking waivers. 3. The McFadden Square area is adequately served by the two (2) adjacent municipal lots throughout most of the year and the close proximity to multiple commercial uses and coastal resources will result in shared trips to the project site area. In keeping with historical conditions, walk-up and pass-by patron traffic is common in this area of the peninsula. Visitors to this area are typically going to the beach or bay and have multiple destinations on the peninsula, such as recreation, shopping, and dining , especially during the summer season. 4. Under current parking requirements for a food service, eating and drinking establishment, parking is required at a rate of one (1) parking space per 30 to 50 square feet (sf) of net public area (NPA), as determined by a use permit. In this case, a parking rate of one space per 50 sf of NPA is appropriate for the proposed use based on several physical design and operational characteristics. Ride sharing is common for businesses that serve alcohol, resulting in fewer parked cars. The proposed conditions of approval would prohibit live entertainment and dancing, which also lowers the demand. The restaurant would not be considered a destination use for drivers. Lastly, local residents and visitors in the area will also walk or bike to the restaurant. 5. Historically, required parking spaces for 110 McFadden and 114 McFadden have been reduced or waived as part of prior use permit approvals. Due to changes in the methodology for calculating required parking spaces since the 70s and 80s, the Project will result in an overall net decrease in parking spaces required by Title 20 and Title 21 to serve the Property. The Applicant is requesting a continuation of historical parking waivers for the Property and will provide 10 onsite spaces as well the payment of 22 in- lieu parking fees as authorized by Sections 20.40.130 and 21.40.130 of the NBMC. The Planning Commission Resolution No. PC2020-021 Page 8 of 25 01-25-19 Property also has a non-conforming parking credit of four (4) spaces based on the original construction of the building in th e 1960s (prior to off-street parking requirements). The current NBMC requires nine (9) spaces for 110 McFadden and 28 spaces for 114 McFadden, for a total requirement of 37 spaces, where 36 spaces are provided. Prior use permits reduced required parking by a total of 22 spaces, where current standards only require a reduction of one (1) space, resulting in a net reduction of 21 spaces. Therefore, the proposed expansion of net public area during the daytime at 114 McFadden is not expected to noticeably change the parking demand in the McFadden Square area. 6. The Project has been conditioned to provide a trash enclosure in the rear parking lot, outside of required drive aisles. The existing door swing of the trash enclosure will be modified to no longer encroach into the drive aisle. The trash enclosure will screen trash from Court Avenue and maintain water quality by covering the top of the dumpster. All of the existing outdoor storage and miscellaneous materials in the rear parking lot will be removed prior to building permit final inspection. Finding: D. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. Facts in Support of Finding: 1. The operation of the eating and drinking establishment will be restricted such that alcohol service, sales, and consumption would end at 1:30 a.m., whereas it was previously allowed to operate until 2 a.m. without any restrictions. The closing hour is compatible with other late-night eating and drinking establishments in the area. The NBPD has reviewed the Project and is supportive of the reduced late hour operation and an improved security plan. 2. As the City does not experience significant alcohol related crime during the morning hours, the additional two (2) hours of breakfast service would be negligible. There are several eating and drinking establishments in the vicinity that serve breakfast such as Dory Deli, Seaside Donuts Bakery, Newport Coffee Company, and Banzai Bowls. The additional morning hours would be consistent with other local businesses and serve residents and visitors. 3. The existing use permit for 114 McFadden restricts net public area during the daytime (prior to 9 p.m.) primarily due to parking concerns. The proposed increase in net public area (NPA) during the daytime from 960 to 1,368 square feet would result in a minimal increase of 408 square feet. The increased NPA would have a neglible impact on parking conditions, as the number of spaces required is lower than previously calculated due to methodological changes in the NBMC. The proposed NPA is located within the existing building footprint and would not result in an increase in overall gross floor area, thereby appearing the same from adjacent uses and maintaining compatability. Planning Commission Resolution No. PC2020-021 Page 9 of 25 01-25-19 4. The existing floor plan for 114 McFadden is not changing as a result of the Project. 110 McFadden would be remodeled to create an open-air environment for dining to complement the existing 114 McFadden restaurant. The prior use permit allowed live entertainment and dancing, whereas these activities would be prohibited by the proposed use permit conditions of approval. 5. The Project includes conditions of approval to ensure that potential conflicts are minimized to the greatest extent possible. Although the eating and drinking establishment is located approximately 50 feet from residential units across Court Avenue to the southwest, the building is oriented toward McFadden Square and the municipal parking lots. The 110 McFadden building will be remodeled to include a retractable roof and open-air environment, where the existing building does not have any openings along Court Avenue. To reduce potential noise in the vicinity, all patios, windows, and the open roof shall be completely closed by 9 p.m., daily. Due to weather considerations, it is likely that the windows and doors will be closed in the colder seasons and in the evenings, reducing the likelihood of issues related to sound transmission. ABC conditions currently require that all side/rear windows and doors to be kept closed at all times except for the egress/ingress of employees. ABC has not reviewed the latest design yet that includes a retractable roof and side windows along Court Avenue. Therefore, a condition of approval is included requiring consistency with ABC conditions of approval if they are more restrictive than the condition of approval in this resolution. The Applicant is also required to control trash and litter around the Property. 6. The operational conditions of approval recommended by the Newport Beach Police Department relative to the sale of alcoholic beverages, including an operator license, will help ensure compatibility with the surrounding uses and minimize alcohol related impacts. The Project has been conditioned to ensure the welfare of the surrounding community. The existing use permit was approved in the 1980s, and the conditions of approval do not align with the associated ABC License. Modernizing and updating the existing use permit conditions of approval allows for easier implementation by employees of the business and enforcement by the Newport Beach Police Department, Code Enforcement, and ABC. The Project is conditioned to prohibit the restaurant from operating as a bar, tavern, or nightclub, thereby reducing potential impacts to the neighborhood. 7. As part of the remodel, the Applicant is required to obtain Health Department approval prior to opening for business and will be required to comply with the California Building Code to ensure the safety and welfare of customers and employees within the establishment. The Project includes the construction of a passageway between 114 and 110 McFadden, and other upgrades which prompts the need for fire sprinklers and additional egress doors, thereby improving safety conditions for the subject building and surrounding area. 8. The Property is located in a relatively dense area with multiple uses within a short distance of each other. The McFadden Square area is conducive to a significant amount of walk-in patrons. The area experiences parking shortages in the daytime during the summer months, but parking is typically available during the rest of the year. Two (2) municipal parking lots and on-site parking is available in the area to accommodate the proposed use. Planning Commission Resolution No. PC2020-021 Page 10 of 25 01-25-19 9. The Public Works Department and Building Division have reviewed the proposed design and configuration of parking spaces and determined the design is acceptable upon implementation of the related conditions of approval. Any future changes to the parking lot configuration would require review and approval by the Planning and Building Divisions, as well as the Public Works Department. Finding: E. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. Facts in Support of Finding: 1. The Property is developed with an existing commercial building and both tenant spaces are designed for an eating and drinking establishment. The proposed design, size, location, and operating characteristics of the use are compatible with the surrounding neighborhood. The existing tenant space on the Property has historically bee n utilized by an eating and drinking establishment since the 1970s. Prior to occupation of the space by the current tenant, Baja Sharkeez, the 114 McFadden space primarily operated as a bar with live entertainment and dancing. The 110 McFadden space has operated most recently as a restaurant and market prior to that. 2. Adequate public and emergency vehicle access, public services, and utilities are provided to the Property. Any additional improvements that are necessary to serve the use, such as reconstruction of the existing driveway, have been included as conditions of approval. 3. In conjunction with the remodel of the former Sol Grill that will connect 110 and 114 McFadden, the Applicant is required to install a fire sprinkler system throughout the combined restaurant spaces. This improvement will enhance the safety of the existing buildings and benefit the surrounding structures and area. 4. A building permit is required prior to any construction. The Project will comply with all Building, Public Works, and Fire Codes. All ordinances of the City and all conditions of approval will be complied with. Finding: F. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the propos ed use. Planning Commission Resolution No. PC2020-021 Page 11 of 25 01-25-19 Facts in Support of Finding: 1. The Project has been reviewed and includes conditions of approval to ensure that potential conflicts with the surrounding land uses are minimized to the greatest extent possible. The operator is required to take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, and areas surrounding the subject property and adjacent properties during business hours, if directly related to the patrons of the establishment. 2. The establishment will continue to provide dining with the service of alcoholic beverages as a public convenience to the surrounding neighborhood and visitors to the area. This will continue to help revitalize the Property and provide an economic opportunity for the property owner to update the building and surrounding area, which best serve the quality of life for the surrounding visitor- and local-serving community. 3. The existing 110 McFadden tenant space is currently vacant and would be remodeled as part of the Project. The Project would include updates to meet current building code and fire code standards including the provision of sprinklers and compliant egress doors to protect patrons and the surrounding area. Off-Street Parking Reduction Both 110 McFadden and 114 McFadden have been granted historical waivers of parking spaces. In accordance with NBMC Section 20.40.110 (Off-Site Parking) and 21.40.110 (Adjustments to Off-Street Parking Requirements), off-street parking requirements may be reduced with the approval of a conditional use permit in compliance with Section 20.52.020 (Conditional Use Permits and Minor Use Permits) as follows: Finding: G. The applicant has provided sufficient data, including a parking study if required by the Director, to indicate that parking demand will be less than the required number of spaces or that other parking is available (e.g., City parking lot located nearby, on-street parking available, greater than normal walk in trade, mixed-use development); and Facts in Support of Finding: 1. Historically, parking rates for 110 McFadden were based on the gross floor area of the restaurant because it was primarily a take-out use. The existing use permit (UP3034A) requires a parking rate of one (1) space for every 50 square feet of gross floor area plus one (1) space for each employee. The resulting requirement was 26 parking spaces. The restaurant provided four (4) parking spaces via in-lieu parking fees, the remaining 22 parking spaces were waived by the Planning Commission. 2. The Property also includes an on-site parking lot containing 10 parking spaces, which has mainly served employees of the business. However, the 110 and 114 McFadden tenants both utilize this lot, and the spaces appear to have “double -counted” under the Planning Commission Resolution No. PC2020-021 Page 12 of 25 01-25-19 existing use permits (except 11 p.m. to 2 a.m. when 110 McFadden was closed). In an effort to accurately analyze parking for the future scenario, the 10 o n-site parking spaces are only counted for the purpose of serving 114 McFadden. 3. Under proposed conditions, the remodeled 110 McFadden space will contain a net public area of 445 square feet. Using a parking rate of one space per 50 square feet of NPA per today’s standards, the resulting parking demand is nine (9) parking spaces. With the continued payment of four (4) in-lieu parking fees, the resulting waiver for the use would be five (5) spaces. Therefore, the proposed use would require a continued waiver of five (5) spaces versus a waiver of 22 spaces previously approved. The result is a net reduction in of 17 required parking spaces for this portion of the project. Thus, no additional parking is required as part of the remodel and merger of the 110 McFadden space with the 114 McFadden space. 4. The existing use permit for the 114 McFadden space (UP1783D) includes separate parking requirements for “daytime” (11 a.m. to 9 p.m.) and “nighttime” (9 p.m. to close) operations. The use permit restricts daytime operations, when demand in the area is highest in summer. The daytime parking rate identified in the use permit is one (1) space per 40 square feet of net public area. The NPA during the daytime was restricted to 960 square feet (sf) resulting in a demand of 24 parking space s. At the time, this daytime restriction was simpler and more realistic to enforce, because the business at that time “Jose Murphy’s” was more of a nightclub/bar that mainly operated at night. The design included a platform for live entertainment and dancing that was only used utilized after 9 p.m., so the space and timing restriction were appropriate for that use. Applicant is a full-service restaurant with alcohol (Type 47 ABC License) and there is no clear physical division to restrict the space during the daytime. This creates regulatory challenges for City staff as well as employees of the business. 5. The nighttime parking requirement for 114 McFadden was higher per UP1783D (approved in 1985) as the NPA increased from 960 sf during the day to approximately 1,421 sf after 9:00 pm. The parking requirement was also higher, at a rate of one (1) space per 35 sf of NPA for the bar/lounge area and one (1) space per for 40 sf for the dining area. According to the use permit this resulted in a requirement of 37 spaces. The Property provided 10 parking spaces on-site in the rear parking lot, 18 spaces via in-lieu parking fees for the public lot, and five (5) spaces via an informal offsite agreement at Playa Realty (102 McFadden). The Property also had a non-conforming parking credit of four (4) spaces, which was grandfathered from original construction of the building in the 1960’s (prior to the requirement for on-site parking). Therefore, through the methods identified above, the Project met the requirement for 37 parking spaces. 6. The conditions of approval prohibit dancing and live entertainment which would reduce the parking demand for the Property from the existing use permit, particularly at night. A uniform parking rate of one (1) space per 50 square feet (sf) of NPA is appropriate for the business during the daytime and nighttime. The proposed NPA for the 114 McFadden space is 1,368 sf resulting in a parking requirement of 28 parking spaces. Therefore, the parking requirement increases by four (4) spaces during the daytime and is reduced by nine (9) spaces at night. The 28 spaces will be provided via the 10 on-site Planning Commission Resolution No. PC2020-021 Page 13 of 25 01-25-19 spaces and 18 in-lieu parking fees. The Project would also continue to receive the four (4) space nonconforming parking credit which results in the provision of 32 parking spaces for the 114 McFadden building where only 28 spaces are required, resulting in a surplus of four (4) spaces. 7. The 110 McFadden and 114 McFadden spaces will be combined as part of the Project and the parking will now be regulated in one consolidated use permit. The result is a combined requirement of 37 parking spaces and the provision of 36 parking spaces. The 36 parking spaces shall be provided via 10 onsite spaces, 22 in-lieu fees, and a four (4) space nonconforming credit. The remaining one (1) parking space would be waived as a continuation of historical parking reductions. 8. It is most likely that the employees and frequent patrons of the business will utilize the parking spaces to the rear of the Property since they are familiar with the site and how to access the parking lot. This will reduce the number of employees utilizing the public lots. 9. The continuation of historical parking reductions remains appropriate for the restaurant, even with the use of the full dining area during the daytime because the overall parking demand for both restaurants has been reduced. The original use permits required a waiver of 22 spaces, where the current use permit requires the wavier of one space. In addition, in keeping with historical conditions, walk -up and bicycle traffic is common in this area of the peninsula. Visitors to this area are typically going to the beach or bay and have multiple destinations on the peninsula, such as recreation, shopping, and dining. The 137-parking-space McFadden Square municipal parking lot is located adjacent to the project site. Also located within walking distance is the Newport Pier municipal parking lot which contains approximately 260 parking spaces. The parking lots have proven to be sufficient to support the existing restaurant and nearby businesses. 10. Furthermore, by 9:00 p.m., many of the surrounding businesses close, and at 10:00 p.m. the beach is closed to the public thereby creating a surplus of public parking spaces. The closure of these attractions coincides with the busiest time of the week for Baja Sharkeez, which is weekend nights. Additionally, ride sharing is common for businesses that serve alcohol. Coastal Development Permit In accordance with Section 21.52.015 (Coastal Development Permits, Findings and Decision) of the Newport Beach Municipal Code, the following findings and facts in support of such findings are set forth: Finding: H. Conforms to all applicable sections of the certified Local Coastal Program. Planning Commission Resolution No. PC2020-021 Page 14 of 25 01-25-19 Facts in Support of Finding: 1. The Project requires a coastal development permit due to the potential intensification of use at the site and the continuation of historical parking waivers. The Project complies with applicable development standards including, but not limited to, floor area limitation, setbacks, and height. 2. The structure complies with the required setbacks, which are zero (0) feet along all property lines. 3. The maximum floor area ratio is 0.5 (3,961 square feet). The remodeled building has a gross floor area of approximately 3,629 square feet. 4. The proposed retractable roof element is approximately 17 feet 6 inches maximum and the existing roof for 114 McFadden is approximately 19 feet from the finished floor elevation of 9.01 feet North American Vertical Datum of 1988 (NAVD88), which complies with the maximum height limitation of 26 feet for a flat roof. 5. The Project requires a waiver of (1) one parking space, where historical use permits authorized a waiver of 22 parking spaces. Therefore, any potential impacts related to the increase in net public area during the daytime would be negligible. Similarly, the additional hours of operation requested in the morning (from 9 a.m.-11 a.m.) are not peak hours for public access. 6. The neighborhood is predominantly developed with commercial and mixed-use structures with scattered multi-family zoning to the southwest. The proposed design, bulk, and scale for the remodel is consistent with the existing neighborhood pattern of development. 7. The Project site is separated from the bay (the nearest body of water) by Court Avenue, McFadden Square, commercial buildings, and an approximately 200 -foot wide beach. The finished floor elevation of the first floor of the structure is 9.01 feet (NAVD88), which complies with the minimum 9-foot (NAVD88) elevation standard for new structures. The identified distances from the coastal hazard areas will help to ensure the Project is reasonably safe for the economic life of the structure. 8. The Property is located in an area known for the potential of seismic activity and liquefaction. All projects are required to comply with the California Building Code (“CBC”) and Building Division standards and policies. Geotechnical investigations specifically addressing liquefaction are required to be reviewed and approved prior to the issuance of building permits. Permit issuance is also contingent on the inclusion of design mitigation identified in the investigations. Construction plans are reviewed for compliance with approved investigations and CBC prior to building permit issuance. 9. The Property is located within 515 feet of coastal waters. A Construction Erosion Control Plan was provided to implement temporary Best Management Practices (BMPs) during construction to minimize erosion and sedimentation and to minimize pollution of runoff and Planning Commission Resolution No. PC2020-021 Page 15 of 25 01-25-19 coastal waters derived by construction chemicals and materials. The Project design also addresses water quality through the inclusion of a post-construction drainage system that includes drainage and percolation features designed to retain dry weather and minor rain event runoff on-site. Any water not retained on-site is directed to the City’s storm drain system. 10. The Project is not located adjacent to a coastal view road or coastal viewpoint as identified in the Coastal Land Use Plan. The nearest coastal viewpoint is on the end of the Newport Pier and not visible from the site due to distance and an intervening building that obstructs views. The Project is located adjacent to McFadden Square, which is accessible to the public and provides opportunities to view and access the beach as well as other amenities. As currently developed, the existing restaurant building and other businesses are located within the view shed of the beach and shoreline. However, the proposed commercial remodel complies with all applicable Local Coastal Program (“LCP”) development standards and maintains a building envelope consistent with the existing neighborhood pattern of development. Because the existing building envelope will be maintained, any public views of the beach or ocean from the subject site would remain the same. Additionally, the project does not contain any unique features that could degrade the visual quality of the coastal zone. 11. The proposed remodel at 110 McFadden would include the removal of the existing solid wall along Court Avenue, which would be replaced with a patio area, glass barriers, and windows. The Project would modernize the existing, vacant building and revitalize the local neighborhood. The building height would remain approximately the same as the existing flat roof and any proposed rooftop equipment would be screened from view of pedestrians and motorists in the vicinity. Therefore, the Project does not have the potential to degrade the visual quality of the Coastal Zone or result in significant adverse impacts to existing public views. Finding: I. Conforms with the public access and public recreation policies of Chapter 3 of the Coastal Act if the project is located between the nearest public road and the sea or shoreline of any body of water located within the coastal zone . Fact in Support of Finding: 1. The Project is located between the nearest public road and the sea or shoreline. Implementation Plan Section 21.30A.040 requires that the provision of public access bear a reasonable relationship between the requirement and the project’s impact and be proportional to the impact. In this case, the Project remodels an existing restaurant space and modifies the existing operations. No additional parking spaces are required to serve the business as proposed. Therefore, the Project does not involve a change in land use, density or intensity that will result in increased demand on public access and recreation opportunities. Furthermore, the Project is designed and sited (appropriate height, setbacks, etc.) so as not to block or impede existing public access opportunities. The updated design would modernize the appearance of the building to help revitalize the area. Planning Commission Resolution No. PC2020-021 Page 16 of 25 01-25-19 Increased hours of operation in the morning and full use of the restaurant during the daytime would serve as an amenity to residents and visitors in the area. 2. Vertical access to the beach is available adjacent to the Project within the McFadden Place plaza and Newport Pier. Lateral access is available on the beach to the west of the site. The public beach is also the start of a six (6) foot wide public sidewalk providing lateral access and views of the ocean. The Project does not include any features that would obstruct access along these routes. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby finds this Project is categorically exempt from the California Environmental Quality Act pursuant to Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. 2. The Planning Commission of the City of Newport Beach hereby approves Conditional Use Permit No. UP2017-034, and Coastal Development Permit No. CD2019-054 subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. 3. This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal or call for review is filed with the an appeal is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning and Title 21 Local Coastal Implementation Plan, of the Newport Beach Municipal Code. Final action taken by the City on the Coastal Development Permit may be appealed to the Coastal Commission in compliance with Section 21.64.035 of the City’s certified LCP and Title 14 California Code of Regulations, Sections 13111 through 13120, and Section 30603 of the Coastal Act. 4. This resolution supersedes Planning Commission Use Permit No. 3034 (Amended) and Use Permit No. 1783 (Amended) which upon vesting of the rights authorized by these applications shall become null and void. PASSED, APPROVED, AND ADOPTED THIS 18th DAY OF JUNE, 2020. AYES: Ellmore, Klaustermeier, Kleiman, Koetting, Lowrey, and Weigand NOES: ABSTAIN: ABSENT: Rosene 01-25-19 Planning Commission Resolution No . PC2020-021 Page 17 of 25 Planning Commission Resolution No. PC2020-021 Page 18 of 25 01-25-19 EXHIBIT “A” CONDITIONS OF APPROVAL (Project-specific conditions are in italics) Planning Division 1. The development shall be in substantial conformance with the approved site plan, floor plans and building elevations stamped and dated with the date of this approval (except as modified by applicable conditions of approval). 2. Sales, service, and consumption of alcoholic beverages between the hours of 9 am and 11 am shall only be allowed on weekends (Friday through Sunday) and certain holidays (New Year’s Day, Saint Patrick’s Day, Cinco de Mayo, Memorial Day, 4th of July, and Labor Day), and shall occur only in conjunction with the purchase of food from the regular menu. 3. Sales, service, and consumption of alcoholic beverages in the original space (11 4 McFadden Place) shall be permitted only between the hours of 9 a.m. and 1:30 a.m . 4. Sales, service, and consumption of alcoholic beverages in the newly expanded restaurant space (110 McFadden Place) shall be permitted to 11 p.m. only. 5. Sales, service and consumption of food and alcoholic beverages shall be permitted in the patio area only between the hours of 9 a.m. and 9 p.m. each day of the week. 6. Free refills and/or “all you can drink” deals on alcohol shall be prohibited. 7. The Planning Commission shall review this Conditional Use Permit within one year of the commencement of operations within the expanded space (110 McFadden), with a focus on alcohol service between the hours of 9 am and 11 am. 8. The rear and side doors and windows shall be kept closed at all times during the operation of the premises, except to allow entry, during emergencies and/o r to permit deliveries. Said doors not to consist solely of a screen door or ventilated screen door. Prior to 9 p.m., this condition shall not apply to side windows and the retractable roof if approved by ABC. 9. Smoking shall be prohibited in the newly expanded restaurant space (110 McFadden). 10. The relocation of tables and chairs from the original space (114 McFadden) to the newly expanded space (110 McFadden) shall be prohibited. 11. The Project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. Planning Commission Resolution No. PC2020-021 Page 19 of 25 01-25-19 12. The Applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Use Permit. 13. Prior to final building permit inspection, any existing outdoor storage within the onsite parking lot shall be removed to the satisfaction of the Planning Division. 14. All proposed signs shall be in conformance with provisions of Chapter 20.42 (Signs) of the Newport Beach Municipal Code (“NBMC”). 15. Use Permit No. UP2017-034 and Coastal Development Permit No. CD2019-054 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal Code, unless an extension is otherwise granted. 16. This Use Permit and Coastal Development Permit may be modified or revoked by the Planning Commission 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. 17. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Use Permit and/or Coastal Development Permit or the processing of a new Use Permit and/or Coastal Development. 18. A copy of the Resolution, including conditions of approval Exhibit “A” shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits. 19. Prior to the issuance of a building permit, the applicant shall submit to the Planning Division an additional copy of the approved architectural plans for inclusion in the project file. The plans shall be identical to those approved by all City department s for building permit issuance. The approved copy shall include architectural sheets only and shall be reduced in size to 11 inches by 17 inches. The plans shall accurately depict the elements approved by this Use Permit and Coastal Development Permit and shall highlight the approved elements such that they are readily discernible from other elements of the plans. 20. The Property shall not be excessively illuminated based on the luminance recommendations of the Illuminating Engineering Society of North Americ a, or, if in the opinion of the Director of Community Development, the illumination creates an unacceptable negative impact on surrounding land uses or environmental resources. The Director may order the dimming of light sources or other remediation upon f inding that the Property is excessively illuminated. Planning Commission Resolution No. PC2020-021 Page 20 of 25 01-25-19 21. Prior to the issuance of a building permit, the Applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Division. 22. All noise generated by the Project shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the NBMC. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher: Between the hours of 7:00AM and 10:00PM Between the hours of 10:00PM and 7:00AM 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 Property 45dBA 60dBA 45dBA 50dBA Commercial Property N/A 65dBA N/A 60dBA 23. Should the Property 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. 24. Construction activities shall comply with Section 10.28.040 of the NBMC, which restricts hours of noise-generating construction activities that produce noise to between the hours of 7 a.m. and 6:30 p.m., Monday through Friday . Noise-generating construction activities are not allowed on Saturdays, Sundays or Holidays. 25. All trash shall be stored within the building or within dumpsters stored in the trash enclosure (three walls and a self-latching gate) or otherwise screened from view of neighboring properties, except when placed for pick-up by refuse collection agencies. The trash enclosure shall have a decorative solid roof for aesthetic and screeni ng purposes. 26. Trash receptacles for patrons shall be conveniently located both inside and outside of the establishment, however, not located on or within any public property or right-of-way. 27. 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 Property. 28. The Applicant shall ensure that the trash dumpsters and/or receptacles are maintained to control odors. This may include the provision of either fully self-contained dumpsters or periodic steam cleaning of the dumpsters, if deemed necessary by the Planning Division. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements). 29. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10 p.m. and 7 a.m. on weekdays and Saturdays and between the hours of 10 p.m. and Planning Commission Resolution No. PC2020-021 Page 21 of 25 01-25-19 9 a.m. on Sundays and Federal holidays, unless otherwise approved by the Director of Community Development, and may require an amendment to this Use Permit. 30. Storage outside of the building in the front or at the rear of the property shall be prohibited, with the exception of the required trash container enclosure. 31. A Special Events Permit is required for any event or promotional activity outside the normal operational characteristics of the approved use, as conditioned, or that would attract large crowds, include any form of on-site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 32. To the fullest extent permitted by law, Applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney’s fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City’s approval of Baja Sharkeez Remodel Project including, but not limited to, UP2017-034, CDP2019-054, and OL 2017-006 (PA2017-255). This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and/or the parties initiating or bringing such proceeding. The Applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The Applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. Life Safety Services (Fire) Division 33. As per California Building Code (CBC) Section 407.1 2016 California Existing Building Code, no change shall be made in the use or occupancy of any building unless such building is made to comply with the requirements of the CBC for the use or occupancy. Changes in use or occupancy in a building or portion thereof shall be such that the existing building is no less compliant with the provisions of this code than the existing building or structure was prior to the change. Subject to the approva l of the building official, the use or occupancy of existing buildings shall be permitted to be changed and the building is allowed to be occupied for purposes in oth er groups without conforming to all of the requirements of this code for those groups, pro vided the new or proposed use is less hazardous, based on life and fire risk, than the existing use. The proposed occupancy increase places this structure in a higher life risk, thus the requirements of CBC will need to be met in order for an occupancy increase. 34. An automatic sprinkler system shall be provided for fire areas containing Group A -2 occupancies and intervening floors of the building where the fire area has an occupant load of 100 or more per California Fire Code (CFC) Section 903.2.1.2. Due t o the increase of floor area, the occupancy will need to meet current code requirements and Planning Commission Resolution No. PC2020-021 Page 22 of 25 01-25-19 be required to provide fire sprinklers in the existing tenant space (114 McFadden) and the proposed space (110 McFadden). 35. Where carbon dioxide storage tanks, cylinders, piping and equipment are located indoors, rooms or areas containing carbon dioxide storage tanks, cylinders, piping and fitting and other areas where a leak of carbon dioxide can collect shall be provided with either ventilation in accordance with CFC Section 5307.5 or an emergency alarm system in accordance with CFC Section 5307.5.2. Building Division 36. The Applicant is required to obtain all applicable permits from the City’s Building Division and Fire Department. The construction plans must comply with the most recent, City- adopted version of the California Building Code. The construction plans must meet all applicable State Disabilities Access requirements. Approval from the Orange County Health Department is required prior to the issuance of a building permit. 37. Egress doors shall swing in the direction of travel due to the proposed number of occupants. 38. Total building occupancy load shall be verified prior to building permit issuance upon the submission of complete, fully dimensioned plans to the Building Division. 39. Fire sprinklers are required. Public Works Department 40. The door swing shall not project into the public right of way or the required dimensions of the parking spaces. This applies to all doors. 41. The trash enclosure gate swing shall not project into the drive aisle or parking spaces. 42. The driveway approach along the Court Avenue frontage shall be reconstructed to accommodate a minimum four-foot accessible (ADA) path across the driveway. A pedestrian easement shall be required if portions of the ADA path are on private property. 43. No private encroachments are permitted within the public right of way. Any existing encroachments shall be removed prior to permit issuance. Police Department 44. The Property shall be maintained as a bona fide restaurant and shall provide a menu containing an assortment of foods normally offered in such restaurants. At least 75% of items on the menu shall be available up until ½ hour before closing. Planning Commission Resolution No. PC2020-021 Page 23 of 25 01-25-19 45. During normal business hours, at least 50 percent of the premises seating shall be prepared for food service and possess condiment dispensers with which to serve meals to the public. 46. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The license shall at all times maintain records which reflect separately the gross sale of food and gross sales of alcoholic beverages of the licensed premises. Said records shall be kept no less frequently than on a quarterly basis and shall be made available to the Newport Beach Police Department on demand. 47. No “Happy Hour” type of reduced price alcoholic beverage promotion shall be allowed after 7 p.m. each day of the week. 48. There shall be no promotional drink specials or reduced drink specials after 7 p.m. each day of the week. 49. The sale of alcoholic beverages for consumption off the premises is strictly prohibited. 50. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee(s). 51. Entertainment shall not be audible beyond the area under the control of the licensee(s). 52. The use of any amplifying system or device is prohibited on the patio and the use of any said system and/or device within the interior of the licensed premises shall not be audible on the exterior of the licensed building. 53. There shall be no live entertainment of any type, including, but not limited to live music, disc jockey or patron dancing. 54. Petitioner shall not require an admission charge or cover charge, nor shall there be a requirement to purchase a minimum number of drinks. 55. Petitioner shall not share any profits or pay any percentage or commission to a promoter or any other person, based on monies collected as a door charge, cover charge, or any other form of admission charge, including minimum drink orders, or sale of drinks. 56. No beer and/or distilled spirits shall be sold in glass bottles or glass containers larger than 12 ounces. 57. Except for table tents and menus, there shall be no exterior advertising or sign of any kind or type, including advertising directed to the exterior from within, promot ing or indicating the availability of alcoholic beverages or signs which are clearly visible to the exterior shall constitute a violation of this condition. 58. Licensees not exercising the privileges of their [ABC] license until after 9 p.m. are deemed not exercising the privileges of their [ABC] license in good faith and said method Planning Commission Resolution No. PC2020-021 Page 24 of 25 01-25-19 of operation shall be deemed contrary to public welfare and morals and an attempt on the part of the licensee to circumvent the provisions of Section 23038 of the Business and Professions Code. For example, a location licensed to operate as a restaurant, then does not serve food. 59. No portion of the Property shall be deemed to be “private” for the purpose of dispersing alcoholic beverages to selected patrons. In no case, shall the licensee recognize any form of membership card, keys or passes which would entitle the holder entry or preferential admittance, service or exclusive use of any portion of the mentioned premises. 60. The petitioner(s) shall be responsible for maintaining free of litter the area adjacent to the premises over which they have control. 61. Any graffiti painted or marked upon the premises or on any adjacent area under the control of the licensee(s) shall be removed or painted over within 48 hours of being applied. 62. No games or contests requiring or involving the consumption of alcoholic beverages shall be allowed. 63. There shall be no dancing allowed on the Property. 64. The Applicant shall comply with all federal, state, and local laws, and all conditions of the Alcoholic Beverage License. Material violation of any of those laws or conditions in connection with the use may be cause for revocation of the use permit. 65. All owners, managers and employees must abide by all laws and conditions of the Alcoholic Beverage Control License. 66. 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 within 60 days of hire. This training must be updated every three (3) years regardless of certificate expiration date. The certified program must meet the standards of the certifying/licensing body designated by the State of California. The establishment shall comply with the requirements of this section within 60 days of approval. 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. 67. Strict adherence to maximum occupancy limits is required. 68. The Applicant shall maintain a security recording system with a 30 -day retention and make those recording available to police upon request. Planning Commission Resolution No. PC2020-021 Page 25 of 25 01-25-19 69. Management shall maintain an operational log of daily activities related to the sale and service of alcoholic beverages, as well as any additional security actions. Management shall make this log available to the Newport Beach Police Department upon request.