Chapter 5.10
ALCOHOLIC BEVERAGE SALES
Sections:
5.10.030 Automatic deemed approved status.
5.10.040 Change in mode or character of operation.
5.10.050 Notification to owners of deemed approved status.
5.10.060 Deemed approved uses—Performance standards.
5.10.070 Procedure for enforcement of performance standards.
5.10.080 Notice of public hearing.
5.10.090 Form of notice of hearing.
5.10.100 Procedures for conduct of hearings and appeals.
5.10.120 Purpose of the public hearing.
5.10.140 Appeal to city council.
5.10.170 Inspection and right of entry.
5.10.180 Nonexclusive procedure—Administrative fines.
5.10.010 Purpose.
The city of San Pablo as a whole is considered “oversaturated” with off-sale and on-sale liquor licenses. Alcoholic beverage sales uses have a documented history, in this and other cities, of directly contributing to numerous peace, health, safety and welfare problems in their neighborhoods, including loitering, littering, drug trafficking, prostitution, public drunkenness, defacement and damaging of structures, pedestrian obstructions and harassment of passersby, public urination, police detentions and arrests, as well as traffic circulation, parking and noise problems on public streets and neighborhood lots. The existence of such problems creates serious impacts on the health, safety and welfare of the residents of nearby single and multiple-family areas, including fear for the safety of their children and of visitors, as well as contributing to the deterioration of their neighborhoods, devaluation of their property, and destruction of their community values and quality of life. The police department and code enforcement division continue to confront various public nuisance conditions at and around existing establishments. In view of limited staffing and resources, judicial actions against all individual establishments is deemed not feasible as a preferred method of controlling these problems on a city-wide basis. This chapter provides a set of additional tools to reduce the costly and harmful effects of irresponsible alcohol sales and consumption on local businesses, residents, law enforcement, medical care, educational, preventive, treatment and rehabilitation resources.
This chapter confers deemed approved status upon certain existing alcoholic beverage sales establishments that were nonconforming uses before the adoption of these regulations. The purpose of this chapter is to control and abate nuisance and criminal activities by requiring that they comply with the deemed approved performance standards as specified in Section 5.10.060 and to achieve the following objectives:
A. To protect adjacent neighborhoods from the harmful effects attributable to the sale of alcoholic beverages.
B. To provide opportunities for businesses that sell alcoholic beverages to operate in a mutually beneficial relationship to each other and to other commercial and civic services.
C. To provide mechanisms to address problems often associated with the public consumption of alcoholic beverages, such as litter, loitering, graffiti, unruly behavior and escalated noise levels.
D. To ensure that businesses which sell alcoholic beverages are not the source of undue public nuisances in the community.
E. To ensure that sites where alcoholic beverages are sold are properly maintained so that negative impacts generated by these activities are not harmful to the surrounding environment in any way.
F. To monitor deemed approved uses to ensure that they do not substantially change their mode or character of operation. (Ord. 06-003 § 1 (part), 2006)
5.10.020 Exemptions.
The following uses are exempt from the requirements of this chapter:
A. Full-service restaurants as defined in Section 17.62.020(C).
B. Establishments with twenty-five or more full time equivalent (FTE) employees and a total gross floor area of twenty thousand square feet or more. (Ord. 06-003 § 1 (part), 2006)
5.10.030 Automatic deemed approved status.
All alcoholic beverage sales establishments as defined in Section 17.70.040 existing and operating with all required permits on the effective date of this chapter, that were nonconforming uses immediately prior to the adoption of the ordinance codified in this chapter, may continue to exercise the same rights and privileges without requiring a use permit, except as provided in Section 5.10.040. Such use is a nonconforming use, subject to the nonconforming use provisions of Chapter 17.08 (except as otherwise provided in this chapter or in the Alcoholic Beverage Control Act of the State Business and Professions Code) and is entitled to deemed approved status. Such uses shall automatically become deemed approved uses on the effective date of this chapter. Each such deemed approved use shall retain this status as long as it complies with the deemed approved performance standards as specified in Section 5.10.060, and so long as the licensed premises are in continuous operation without any substantial change in the mode or character of the operation of the premises. None of the provisions of this chapter restricts any authority to require modification or termination of any deemed approved use which does not conform to the provisions of Section 5.10.060 or which has been declared a nuisance by the city. (Ord. 06-003 § 1 (part), 2006)
5.10.040 Change in mode or character of operation.
A. Upon request of the police department or code enforcement division, the planning director shall agendize a public hearing before the planning commission to determine whether a use permit is required for an existing alcoholic beverage sales establishment if any of the following occurs:
1. The deemed approved use discontinues active operation for a continuous period of more than thirty days;
2. The deemed approved use surrenders, abandons, closes, or quits its licensed premises;
3. The deemed approved uses’ license from the California Department of Alcoholic Beverage Control is suspended or surrendered for thirty days or more;
4. The deemed approved use changes its activity so that the Department of Alcoholic Beverage Control requires a different type of license;
5. The deemed approved use expands its floor area devoted to the display or sales of alcoholic beverages, or both, by more than twenty percent;
6. Any other circumstances that result in a substantial change in the mode or character of operation, except for those circumstances listed in subdivision (b) of Section 23790 of the California Business and Professions Code.
B. Following the public hearing, the planning commission shall determine whether a substantial change in the mode or character of operation of the premises has occurred. If the commission determines that a substantial change has occurred, the alcoholic beverage sales establishment must cease operation and may not resume unless it applies for and obtains a use permit in conformance with this chapter.
C. The public hearing shall be noticed in accordance with Section 5.10.080. In any hearing under this chapter, the enforcement officer(s) shall be considered the prosecutor, and the planning division shall act on behalf of the planning commission or city council to present the issues for decision.
D. The decision of the planning commission may be appealed to the city council in accordance with Section 5.10.140. (Ord. 06-003 § 1 (part), 2006)
5.10.050 Notification to owners of deemed approved status.
The police department shall notify the owner of each deemed approved use, and also the property owner if not the same, of the use’s deemed approved status. Such notice shall be sent via certified return receipt mail and shall include:
A. A copy of the performance standards as specified in Section 5.10.060, with the requirement that these be posted in a conspicuous and unobstructed place visible from the entrance of the establishment for public review.
B. Notification that the use is required to comply with all these performance standards.
C. Notification that a review fee is required. The amount of such fee shall be as established or amended by the city council.
D. Notification that the use is required to comply with all other aspects of the deemed approved regulations.
Should the notice be returned, it shall be sent via regular U.S. mail. Failure of any person to receive notice given pursuant to this section shall not affect the deemed approved status of the use. (Ord. 06-003 § 1 (part), 2006)
5.10.060 Deemed approved uses—Performance standards.
An activity shall retain its deemed approved status only if it conforms with all of the following deemed approved performance standards:
A. It does not result in adverse effects to the health, peace or safety of persons residing or working in the surrounding area.
B. It does not result in jeopardizing or endangering the public health or safety of persons residing or working in the surrounding area.
C. It does not contribute to repeated nuisance activities within the premises or in close proximity of the premises, including but not limited to disturbance of the peace, illegal drug activity, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, excessive littering, loitering, graffiti, illegal parking, excessive loud noises, especially in the late night or early morning hours, traffic violations, curfew violations, lewd conduct, or police detentions and arrests.
D. It does not result in violations to any applicable provision of any other city, county, state, or federal regulation, ordinance, or statute.
E. Its upkeep and operating characteristics are compatible with and will not adversely affect the livability or appropriate development of abutting properties and the surrounding area.
F. Its operation does not result in the transfer, expiration or revocation of a state of California Department of Alcoholic Beverage Control license;
G. A copy of the performance standards shall be posted and remain in a conspicuous and unobstructed place visible from the entrance of the establishment for public review.
H. Failure to comply with the performance standards set forth herein shall constitute a public nuisance. (Ord. 06-003 § 1 (part), 2006)
5.10.070 Procedure for enforcement of performance standards.
Upon notification that a deemed approved use may be in violation of the performance standards as specified in Section 5.10.060, the following procedure shall be followed:
A. The police department or an enforcement officer or officers as defined in Section 1.10.020 will assess the nature of the complaint and its validity. In each case, the officers will talk to members of the surrounding community to assess their perception of the alleged violation.
B. Based upon the findings of the officer, recommendations to ameliorate any problems discovered will be made to the deemed approved use. Such recommendations may include, but are not limited to, suggestions as to the display and location of placement of signs and displays; the frequency of removal of litter and graffiti; training of owners, managers and employees in responsible beverage service and sales; deployment of security guards; and adjustment of hours of operation. After an appropriate period, an officer will revisit the site and surrounding community to determine if the violations have been abated. If the problems have been abated, then a subsequent visit by an officer may be made thirty to sixty days after the last visit to establish that the deemed approved use remains in compliance.
C. If the problems persist or the owner or operator of the business fails to cooperate with or respond to the notice of violations, the enforcement officer shall forward the materials to the planning director, who shall prepare a report summarizing the enforcement officer’s concerns and any communications from the owner or operator, and attach relevant materials, and agendize a public hearing before the planning commission to determine whether the deemed approved use status of the business should be modified or revoked. In any hearing under this chapter, the enforcement officer(s) shall be considered the prosecutor, and the planning division shall act on behalf of the planning commission or city council to present the issues for decision. (Ord. 06-003 § 1 (part), 2006)
5.10.080 Notice of public hearing.
Except as set forth herein, notice of the public hearing shall be made to the property owner, owner of the business, and nearby property owners in the same manner as notice of use permit hearings are made pursuant to Section 17.16.050, although no notice need be sent to local agencies. Failure of any person or party to receive notice given pursuant to this section shall not affect the validity of any proceedings hereunder. Fees for notification shall be set by resolution of the city council and shall be paid for by the owner of the deemed approved use. (Ord. 06-003 § 1 (part), 2006)
5.10.090 Form of notice of hearing.
The notice to the owner of the deemed approved use, and also the property owner if not the same, shall be substantially in the following form, but may include other information:
You are hereby notified that a hearing will be held before the City of San Pablo Planning Commission, located at the City Council Chambers, 13831 San Pablo Avenue, on the ________ day of, ______, ______, at the hour _______ to determine whether the Deemed Approved Use status of the business operated at _____________ shall be modified or revoked pursuant to the Deemed Approved Alcoholic Beverage Sale Regulations contained in Chapter 5.10 of the San Pablo Municipal Code. You may be present at the hearing. You may be, but need not be, represented by counsel. You may present any relevant evidence.
(A brief statement of the reason(s) for the hearing shall be included with the notice.) (Ord. 06-003 § 1 (part), 2006)
5.10.100 Procedures for conduct of hearings and appeals.
A. Record. A record of the entire proceedings shall be made by tape recording, or by other means of permanent recording determined to be appropriate by the planning director.
B. Reporting. The proceedings at the hearing shall also be reported by a court reporter if requested by any party at their own expense. A transcript of the proceedings shall be made available to all parties upon request and upon payment of the entire cost for such service.
C. Continuances. Continuances may be granted for good cause shown.
D. Oaths/Certification. In any proceedings under this chapter, the chairperson of the planning commission, the mayor, the city clerk, or the city attorney (or his/her designee), has the power to and shall administer oaths and affirmations and to certify to official acts. (Ord. 06-003 § 1 (part), 2006)
5.10.110 Evidence.
A. Rules. Hearings need not be conducted according to the technical rules relating to evidence and witnesses.
B. Oral Evidence. Oral evidence shall be taken only on oath or affirmation.
C. Hearsay Evidence. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions in courts of competent jurisdiction in this state.
D. Admissibility of Evidence. Any relevant evidence shall be admitted if it is the type of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdictions in this state.
E. Exclusion of Evidence. Irrelevant and unduly repetitious evidence may be excluded. (Ord. 06-003 § 1 (part), 2006)
5.10.120 Purpose of the public hearing.
A. The purpose of the public hearing is to receive evidence on whether the operating methods of the deemed approved use are causing undue negative impacts in the surrounding area.
B. At the public hearing, the planning commission shall determine whether the deemed approved use conforms to the performance standards as specified in Section 5.10.060, and to any other applicable criteria.
C. The planning commission may continue the deemed approved status for the use in question, may require such changes or impose such reasonable conditions of approval as are in the judgment of the commission necessary to ensure conformity to said criteria, or may revoke the deemed approved use’s deemed approved status.
D. The planning commission may revoke the deemed approved use’s approved status only upon a finding that prior governmental efforts to cause the owner or operator to eliminate the problems associated with the use have failed, and that the owner or operator has failed to demonstrate the willingness or ability to eliminate the problems associated with the use.
E. The decision shall be based upon all evidence received at the hearing, including, but not limited to, information compiled by staff and testimony from the owner of the deemed approved use and all other interested persons. Any new conditions of approval shall be made a part of the deemed approved status and the deemed approved use shall be required to comply with these conditions. (Ord. 06-003 § 1 (part), 2006)
5.10.130 Conditions.
The planning commission may impose such conditions as it deems necessary to protect the public health, safety and welfare, and ensure conformity with performance standards, including but not limited to, restriction of hours of operation; imposition of design requirements to reduce opportunities for congregating and obstructing public ways and neighboring property; requiring illumination of exterior areas; maintenance of adequate trash receptacles; prohibition or regulation of pay telephones on the site; posting of no loitering or public drinking signs or other signs; limiting furnishings and features that encourage loitering and nuisance behavior; provision of adequately trained security personnel and/or devices; prohibition of the selling of drug paraphernalia products as defined in Health and Safety Code Sections 11014.5 and 11364.5; and prohibition of pool or billiard tables, football or pinball games, arcade style video or electronic games, or coin-operated amusement devices. (Ord. 06-003 § 1 (part), 2006)
5.10.140 Appeal to city council.
A. Except as set forth herein, the planning commission’s decision may be appealed to the city council in the same manner as set forth in Section 17.16.080. A copy of the decision shall be served on each party. Service of the decision shall be deemed complete at the time it is personally served or deposited in the mail with the correct amount of postage affixed. Failure to receive a copy of the decision served pursuant to this section shall not affect the validity of the decision.
B. Form of Decision. The decision shall be in writing and shall contain findings of fact, a determination of the issues presented, and the requirements to be complied with.
C. The decision of the planning commission shall be final unless appealed to the city council in accordance with Section 17.16.080. Failure to file a timely appeal shall constitute a failure to exhaust administrative remedies and shall operate as a bar to any court action challenging the decision.
D. If a timely appeal of the decision of the planning commission to revoke or modify a deemed approved use is filed with the city clerk, the appeal shall be agendized and notice provided in the same manner set forth in Section 17.16.080. Failure to receive notice given pursuant to this section shall not affect the validity of any appeal hearing hereunder.
E. The appeal shall be set forth in writing and shall specify any and all claimed errors or abuse of discretion by the planning commission; any and all areas in which it is claimed the planning commission’s decision was not supported by the evidence in the record; and any concerns about the constitutionality of the hearing process.
F. In considering the appeal, the council shall determine whether the deemed approved use conforms to the applicable deemed approved standards, and may approve or disapprove the planning commission’s decision or require such changes therein or impose such reasonable conditions of approval as are in its judgment necessary to ensure conformity to said standards.
G. Form of Decision. The decision shall be in writing and shall contain findings of fact, a determination of the issues presented, and the requirements to be complied with. Service of the decision shall be deemed complete at the time it is personally served or deposited in the mail with the correct amount of postage affixed. Failure to receive a copy of the decision served pursuant to this section shall not affect the validity of the decision rendered herein.
H. The decision of the city council shall be final unless overruled by a court of competent jurisdiction. (Ord. 06-003 § 1 (part), 2006)
5.10.150 Fees.
The city council does establish the following fees in order to carry out the purpose and intent of this chapter. These fees may be adjusted from time to time by resolution of the city council.
A. All existing alcohol beverage sales establishments shall be required to pay a one-time fee of one hundred fifty dollars for which they will receive education about the deemed approved ordinance and an inspection to help the businesses assess the degree to which they are in compliance with the performance standards contained herein. This fee will be waived for existing businesses that submit a copy of their report to the Department of Alcoholic Beverage Control documenting that they sold/served less than one thousand dollars worth of alcohol during the preceding twelve-month period.
B. All new alcoholic beverage sales establishments, or establishments changing ownership after the enactment of the deemed approved ordinance, will be required to pay a one-time fee of one hundred fifty dollars for the education and inspection services described above.
C. Failure of any person to pay a fee as specified above, within thirty days of receipt of the bill, which shall be sent by regular U.S. mail, shall constitute a debt to the city. To enforce that debt, the city manager, or his/her designee, may file a claim with the small claims court, or direct the city attorney to employ other available legal remedies. (Ord. 06-003 § 1 (part), 2006)
5.10.160 Illegal use.
A use which has been finally determined to be in noncompliance with the deemed approved performance standards shall lose its deemed approved status and shall no longer be considered a legal use of the building, structure, site, or portion thereof, and shall cease operation immediately. (Ord. 06-003 § 1 (part), 2006)
5.10.170 Inspection and right of entry.
Any police or enforcement officer or officers as defined in Section 1.10.020 may enter on any site or into any structure for the purpose of investigation whenever they have cause to suspect a violation of any provision of these regulations, or whenever necessary to the investigation of violations to the deemed approved performance standards or conditions of approval imposed under this chapter. An owner or occupant who refuses to permit such entry and investigation on premises open to the public shall be subject to criminal prosecution. (Ord. 06-003 § 1 (part), 2006)
5.10.180 Nonexclusive procedure—Administrative fines.
The procedures set forth in this chapter shall not be the city’s sole or exclusive remedy. The city may file any administrative, criminal or civil action which in its discretion is deemed necessary. In particular, violations of the deemed approved performance standards or any other provision of this chapter may result in administrative citations pursuant to Chapter 1.10 of this code in addition to other proceedings. (Ord. 06-003 § 1 (part), 2006)
5.10.190 Cost recovery.
City may recover its enforcement costs pursuant to the procedures set forth in Section 1.08.070 of this code. (Ord. 06-003 § 1 (part), 2006)