HomeMy WebLinkAbout08-04-2008 Minutes
CITY OF SAN BERNARDINO
300 N. "D" Street
San Bernardino, CA 92418
Website: www.sbcity.org
Mayor Patrick J. Morris
Council Members:
Esther Estrada
Dennis J. Baxter
Tobin Brinker
Neil Derry
Chas Kelley
Rikke Van Johnson
Wendy McCammack
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MINUTES
MAYOR AND COMMON COUNCIL AND
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO
JOINT REGULAR MEETING
AUGUST 4, 2008
COUNCIL CHAMBERS
The joint regular meeting of the Mayor and Common Council and Community
Development Commission of the City of San Bernardino was called to order by
Mayor/Chairman Morris at 1:40 p.m., Monday, August 4, 2008, in the Council
Chambers of City Hall, 300 North "D" Street, San Bernardino, California.
Roll Call
Present:
Mayor/Chairman Morris; Council Members/Commissioners Estrada,
Baxter, Brinker, Kelley, Johnson, McCammack; City Attorney Penman,
Assistant City Manager Sassoon, City Clerk Clark.
Absent:
Council Member/Commissioner Derry.
1. Closed Session
Pursuant to Government Code Section(s):
A. Conference with legal counsel - existing litigation - pursuant to
Government Code Section 54956.9(a):
Richard "Scott" Moss, et al. v. City of San Bernardino, et al. - United
States District Court Case No. EDCV 07-01027SGL (Opx);
08/04/2008
San Bernardino City Professional Firefi~hters, Local 891 v. City of San
Bernardino; San Bernardino Fire Department, et al. - San Bernardino
Superior Court Case No. CIVSS 807685;
Michael Desrochers and Steve Lowes v. City of San Bernardino, et al. -
San Bernardino Superior Court Case No. CIVSS 708367;
Garrett Warren v. City of San Bernardino - United States District Court
Case No. EDCV 08-72;
Ar~ v. Johnson - San Bernardino Superior Court Case No. CIVSS
708058;
White v. City of San Bernardino - San Bernardino Superior Court Case
No. CIVSS 806002;
COillad v. City of San Bernardino - San Bernardino Superior Court Case
No. ClVSS 808602.
B. Conference with legal counsel - anticipated litigation - significant
exposure to litigation - pursuant to subdivision (b) (I), (2), (3) (A-F) of
Government Code Section 54956.9:
Claim filed by Manta Management;
Inland Communities Corp. v. City of San Bernardino (Paradise
Hills);
One (1) case.
C. Conference with legal counsel - anticipated litigation - initiation of
litigation - pursuant to subdivision (c) of Government Code Section
54956.9:
City of San Bernardino v. California State University
D. Closed Session - personnel - pursuant to Government Code Section
54957:
Director of Code Enforcement
Kelli Bruhl
John Wilson
E. Closed session with Chief of Police on matters posing a threat to the
security of public buildings or threat to the public's right of access to
public services or public facilities - pursuant to Government Code Section
54957.
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F. Conference with labor negotiator - pursuant to Government Code Section
54957.6.
G. Conference with real property negotiator - pursuant to Government Code
Section 54956.8.
City Attorney Penman announced that the following additional items would be
discussed in closed session under Agenda Item No. IB:
Legal advice on Agenda Item Nos. 9 and 39.
Reading of Resolutions & Ordinances
Deputy City Clerk Sutherland read into the record the titles of all the resolutions and
ordinances on the regular agenda of the Mayor and Common Council and Community
Development Commission.
Invocation/Pledge of Allegiance
The invocation was given by Councilwoman McCammack. The pledge of allegiance was
led by Brittanny Stopani, a student at Bradley Elementary School.
2. Appointments
There were no commission appointments.
3. Presentations
Jim Gerstenslager, Director of Little League's Western Region Headquarters
thanked the Mayor and Council for their support of this year's tournament.
Coach Dave Cole, Catcher Steve Harrison, and Center Fielder Nathan Cole
presented a set of tournament pins to the Mayor.
Linda and Steve Sutherland and Barbara Sky joined Mayor Morris in presenting
trophies to the following entries in this year's Fourth of July Parade:
· "E" Street Cruizers' Classic Car & Trucks - Winner of the Best
Originality Trophy
· Club United of Muscoy - Winner of the Best Performance Trophy
· Shab El A war and his Volunteer Fire Department and the District 43
Challenger Baseball Division - Winner of the Best Humor Trophy
· The Cambodian Inland Empire Cultural Group - Winner of the Best
Community Spirit Trophy
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· Danzas de Aztlan - Winner of the Best Cultural Display Trophy
· Juan Polio Restaurants - Winner of the Best Use of Theme
· Inland Empire Military Vehicle Preservation Association - Winner of the
Special Judges Award for preserving our American History
4. Announcements
Announcements were made by the Mayor, members of the Common Council,
elected officials, and a representative from the Chamber of Commerce regarding
various civic, community and chamber events and activities.
5. Waive Full Reading of Resolutions & Ordinances
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that full reading of the resolutions and
ordinances on the regular agenda of the Mayor and Common Council and
Community Development Commission, be waived. The motion carried
unanimously with Derry absent.
6. Council Minutes
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that the minutes of the following meeting(s) of
the Mayor and Common Council/Community Development Commission of the
City of San Bernardino be approved as submitted in typewritten form: June 16,
2008; June 30,2008; and July 7, 2008. The motion carried unanimously with
Derry absent.
7. Item Deleted
8. Personnel Actions
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that the personnel actions, as submitted by the
Interim Chief Examiner, dated July 30, 2008, in accordance with Civil Service
rules and Personnel policies adopted by the Mayor and Common Council of the
City of San Bernardino, be approved and ratified. The motion carried
unanimously with Derry absent.
9. ORD. MC-1278 - An ordinance of the City of San Bernardino extending a
temporary moratorium on the establishment and operation of new
parolee/probationer group homes, registered sex offender group homes and
unlicensed group homes. FINAL READING
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Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said ordinance be adopted. Ordinance No.
MC-1278 was adopted unanimously with Derry absent.
10. RES. 2008-299 - Resolution of the City of San Bernardino repealing
Resolution No. 98-310 and adopting the revised Records Retention Schedule
attached as Exhibit" A".
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution No.
2008-299 was adopted unanimously with Derry absent.
11. Use of Hernandez Community Center by American Sports University
Note: No backup materials were distributed.
Council Member/Commissioner Estrada made a motion, seconded by Council
Member/Commissioner Baxter, that the matter be continued to the Councill
Commission meeting of August 6, 2008. The motion carried unanimously with
Derry absent.
12. Set a Capital Improvement Program (CIP) workshop for Monday, August
18, 2008, at 5:30 p.m. in the Economic Development Agency Boardroom to
review the 5-year Capital Improvement Program - Fiscal Years 2008/09 _
2012/13
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that a Capital Improvement Program (CIP)
workshop be set for Monday, August 18, 2008, at 5:30 p.m. in the Economic
Development Agency Boardroom to review the 5-year Capital Improvement
Program - Fiscal Years 2008/09 - 2012/13. The motion carried unanimously
with Derry absent.
13. RES. 2008-300 - Resolution of the City of San Bernardino amending
Resolution No. 655 entitled, in part, "A Resolution...designating certain
streets, or portions thereof as through highways..." and establishing two-way
stops at the intersections of Twenty-Eighth Street at Fremontia Drive and
Twenty-Ninth Street at Fremontia Drive.
Council Member/Commissioner Baxter made a motion, seconded by Council
M\:mber/Commissioner Brinker, that said resolution be adopted. Resolution No.
2008-300 was adopted unanimously with Derry absent.
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14. RES. 2008-313 - Resolution of the Mayor and Common Council of the City
of San Bernardino awarding a contract to Kalban, Inc. for the construction
of ADA access and sidewalks at various locations (SS-B 2007/08), per Project
Plan No. 12295.
Council Member/Commissioner Johnson stated that there's a utility pole right in
the middle of the ADA sidewalk on the southeastern corner of Medical Center
Drive, and he felt that it needed to be moved.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Estrada, that said resolution be adopted. Resolution No.
2008-313 was adopted unanimously with Derry absent.
15. RES. 2008-301 - Resolution of the City of San Bernardino authorizing and
directing execution of a license and agreement with Inland Empire Resources
Conservation District for access to Chestnut Debris Basin.
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution No.
2008-301 was adopted unanimously with Derry absent.
16. RES. 2008-302 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing the execution of an agreement relative to the
selling price of tax-defaulted property located at 2255 Bessant Street, San
Bernardino, proposed to be purchased from the County of San Bernardino
by the San Bernardino City Unified School District.
City Attorney Pemnan abstained because his wife is a member of the school
board.
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution No.
2008-302 was adopted unanimously with Derry absent.
17. RES. 2008-315 - Resolution of the Mayor and Common Council of the City
of San Bernardino establishing the schedule of penalties for parking
violations set forth in the City of San Bernardino Municipal Code and the
California Vehicle Code, and amending Part VIII of Resolution 2008-149.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that said resolution be adopted. Resolution No.
2008-315 was adopted. Ayes: Estrada, Baxter, Brinker, Johnson,
McCammack. Nays: Kelley. Absent: Derry.
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18. RES. 2008-314 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing the execution of an agreement for services
with and issuance of a purchase order to Westbeach Group, Inc dba West
Beach Systems for the Boys & Girls Club CCTV Security System for
Delmann Heights Community Center in the City of San Bernardino per RFQ
F-08-23.
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner Baxter, that the Mayor and Common Council
reject the bid of Protection One because the bid is non-responsive; that said
resolution be adopted; and that the Director of Finance be authorized to amend
the FY 2008/09 budget and carryover $21,720 to Account No. 001-321-5706
(Alterations and Renovations). The motion carried and Resolution No. 2008-
314 was adopted unanimously with Derry absent.
19. RES. 2008-316 - Resolution of the Mayor and Common Council of the City
of San Bernardino awarding a bid for lease purchase fmancing to Koch
Financial Corporation for the purchase of four (4) water-cooled air
conditioners, contingency funds and contingency/temporary cooling
equipment.
City Attorney Penman stated that there are at least two large air-conditioning
companies in town, but because of the unique nature of the cooling system in the
Police Department, they were excluded from bidding on this project.
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution No.
2008-316 was adopted unanimously with Derry absent.
20. RES. 2008-303 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing the execution of a new temporary employment
agreement between the City of San Bernardino and Donald Feser for the
position of Disaster Coordinator.
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution No.
2008-303 was adopted unanimously with Derry absent.
21. ORD. MC-1279 - An Ordinance of the City of San Bernardino amending San
Bernardino Municipal Code Section 9.90.010 of Chapter 9.90 regarding
authority to arrest and issue citations. FINAL READING (Continued from
July 21, 2008)
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Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said ordinance be adopted. Ordinance No.
MC-1279 was adopted unanimously with Derry absent.
22. RES. 2008-304 - Resolution of the City of San Bernardino authorizing the
purchase of a three year maintenance contract for the Public Safety Dispatch
Center's digital voice logging recorder from NICE Systems of Uniondale,
New York.
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution No.
2008-304 was adopted unanimously with Derry absent.
23. RES. 2008-305 - Resolution of the City of San Bernardino authorizing
execution of an agreement with the State of California, 911 office to
participate in the 911 emergency number system, the purchase of an upgrade
to the City's Public Safety Answering Point (pSAP) 911 telephone system and
the purchase of a five year maintenance plan for the 911 system from
Verizon Communications of Thousand Oaks, California.
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution No.
2008-305 was adopted unanimously with Derry absent.
24. RES. 2008-306 - Resolution of the City of San Bernardino amending
Resolution 2007-345, Section 2, B. Compensation and Section 2, Y. Holidays,
between the City and Management/Confidential employees.
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution No.
2008-306 was adopted unanimously with Derry absent.
25. RES. 2008-307 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing the City Manager to execute a Vendor Service
Agreement and the Finance Director, or her designee, to issue a purchase
order to Donegan Tree Service in the amount of $75,000 for tree maintenance
service in various Landscape Maintenance Districts.
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution No.
2008-307 was adopted unanimously with Derry absent.
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26. RES. 2008-308 - Resolution authorizing the City Manager to execute
Amendment No. 2 to the vendor service agreement with three (3) one-year
extensions at the City's option with Applied LNG Technologies pursuant to
Section 3.04.010 B-3 of the Municipal Code for the purchase of LNG fuel.
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution No.
2008-308 was adopted unanimously with Derry absent.
27. RES. 2008-309 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing the execution of an agreement and issuance of
a purchase order in the amount of $238,000 by exercising its fourth and rmal
year option with Rehrig Pacific Company for the purchase of automated
carts for residential refuse services.
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution No.
2008-309 was adopted unanimously with Derry absent.
28. RES. 2008-310 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing the execution of an agreement and issuance of
a purchase order pursuant to Section 3.04.010 B-3 of the Municipal Code in
the amount of $125,200 to New West Signal for the installation of new
streetlights on Parkside Drive between 30" and 34" Streets.
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution No.
2008-310 was adopted unanimously with Derry absent.
29. RES. 2008-317 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing the execution of an agreement and issuance of
a purchase order in the amount of $120,000 to Zumar Industries, Inc., for
the purchase of traffic signs for repair, removal, and replacement of
damaged, faded and vandalized signs, and new installation of signs located
throughout the City of San Bernardino.
Council Member/Commissioner Kelley reported some interior illuminated signs
on Kendall and Shandin Hills Drive, on "H" Street and Northpark, and some "no
parking signs" on Kendall that have faded over time.
Council Member/Commissioner McCammack stated that she would not support
this item because there are local vendors within the County of San Bernardino
that could be providing the same material at the same or at least a competitive
price, which would mean that the money would be regenerated back into the
community.
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Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution No.
2008-317 was adopted. Ayes: Estrada, Baxter, Brinker, Kelley, Johnson.
Nays: McCammack. Absent: Derry.
30. RES. 2008-311 - Resolution authorizing an agreement and increase to an
interim purchase order to "Y" Tires of Los Angeles for new and recapped
tires, tubes and related repair services for City vehicles and eqnipment, to be
utilized by the Fleet Division pursuant to Section 3.04.010 B-3 of the
Municipal Code.
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution No.
2008-311 was adopted unanimously with Derry absent.
31. RES. 2008-312 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing the City Manager to execute a consultant
services agreement by and between the City of San Bernardino and
California Municipal Technologies, Inc., a California Corporation, for a
course management registration software system pursuant to Municipal Code
Section 3.04.01O.B.3, and ratifying action taken between March 31, 2008 and
the date of this resolution.
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution No.
2008-312 was adopted unanimously with Derry absent.
32. An Ordinance of the City of San Bernardino adding Chapter 5.19 to the San
Bernardino Municipal Code regarding prohibiting sex offenders from
peddling and soliciting and repealing Section 5.04.605 regarding house-to-
house solicitors. FIRST READING
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Baxter, that said ordinance be laid over for final
adoption. The motion carried unanimously with Derry absent.
33. An Ordinance of the City of San Bernardino amending San Bernardino
Municipal Code Chapter 12.03 (Right-of-Way Permits, Excavations and
Temporary Encroachments), Section 12.03.020 (Defmitions) and adding
Section 12.03.055 to establish a trench cut moratorium on newly paved public
roadways. FIRST READING
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Brinker, that said ordinance be laid over for final
adoption. The motion carried unanimously with Derry absent.
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34. RES. 2008-318 - Resolution of the Mayor and Common Council of the City
of San Bernardino ratifying the submittal of a project application for the
Federal Safe Routes to School (SRTS) Program Cycle 2 Funding.
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution No.
2008-318 was adopted unanimously with Derry absent.
35. Implementation of an Anti-Graffiti Rewards Program
Council Member/Commissioner Johnson stated that when this item came before
the Police Ad Hoc Committee he asked them to provide the Council with
information confirming that this type of program has been successful in other
cities. He stated that this matter could be continued to the Council meeting of
Wednesday, August 6, 2008, provided the requested information is made
available to the Council prior to that meeting.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner McCammack, that the matter be continued to the
Council/Commission meeting of August 6, 2008. The motion carried
unanimously with Derry absent.
36. Appeal hearing regarding the decision of the City Clerk concerning
delinquent transient lodging taxes owed by the Budget Lodge (Continued
from June 16, 2008)
City Attorney Penman advised that the City had received a settlement from the
Budget Lodge in the amount of $40,000.
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner Johnson, that the matter be tabled. The motion
carried unanimously with Brinker and Derry absent.
37. An Ordinance of the City of San Bernardino adding Chapter 5.57 to the San
Bernardino Municipal Code regarding scrap metal recycling. FIRST
READING (Continued from July 7,2008)
Note: No backup materials were distributed.
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Johnson, that the matter be continued to the Council/
Commission meeting of September 2, 2008. The motion carried unanimously
with Derry absent.
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38. Norton Space and Aeronautics Academy - Reimbursement Agreement for
waiver/reimbursement of fees (Continued from June 2, 2008)
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner Estrada, that the Mayor and Common Council
continue consideration of a reimbursement agreement to the Council/Commission
meeting of December I, 2008. The motion carried unanimously with Derry
absent.
39. ORD. MC-I280 - An Urgency Ordinance of the City of San Bernardino
establishing a temporary moratorium on the establishment and operation of
new parolee/probationer group homes, registered sex offender group homes
and unlicensed group homes, declaring the urgency thereof, and taking effect
immediately. URGENCY
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner Brinker, that said urgency ordinance be adopted.
Ordinance No. MC-I280 was adopted unanimously with Derry absent.
COMMUNITY DEVELOPMENT COMMISSION
Present:
Mayor/Chairman Morris; Council Members/Commissioners Estrada,
Baxter, Brinker, Kelley, Johnson, McCammack; City Attorney Penman,
City Clerk Clark, Economic Development Agency Deputy Director Gee
and Special Counsel Sabo.
Absent:
Council Member/Commissioner Derry.
R40. RES. CDC/2008-28 - Resolution of the Community Development Commission
of the City of San Bernardino, California, approving an agreement with
Louis Schnepp, Dakota Management Company, Inc., and authorizing
execution thereof, providing for professional real estate consultant services.
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner Estrada, that said resolution be adopted.
Resolution No. CDC/2008-28 was adopted unanimously with Derry absent.
R41. RES. CDC/2008-29 - Resolution of the Community Development Commission
of the City of San Bernardino approving and authorizing the Interim
Executive Director of the Redevelopment Agency of the City of San
Bernardino ("Agency") to execute Amendment No.2 to the Maintenance and
Operation Contract by and between the Agency and the Assistance League of
San Bernardino (580 West ~ Street, San Bernardino - Central City North
Redevelopment Project Area).
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Council Member/Commissioner McCammack abstained because she is a dues-
paying member of the Assistance League board. She left the Council Chambers
and returned after the vote was taken.
Council Member/Commissioner Estrada made a motion, seconded by Council
Member/Commissioner Baxter, that said resolution be adopted. Resolution No.
CDC/2008-29 was adopted. Ayes: Estrada, Baxter, Brinker, Kelley,
Johnson. Nays: None. Abstentions: McCammack. Absent: Derry.
R42. Invoice for Water Damage Cleanup - California Theatre of the Performing
Arts located at 562 West 4th Street (Central City North Redevelopment
Project Area)
Council Member/Commissioner Estrada made a motion, seconded by Council
Member/Commissioner Baxter, that the Community Development Commission of
the City of San Bernardino approve payment of an invoice in the amount of
$27,308.30 to ACR Services for Water Extraction and Biological Hazard
Remediation services at the California Theatre of the Performing Arts. The
motion carried unanimously with Derry absent.
PLANNING
43. Public Hearing - Conditional Use Permit (CUP) No. 08-03 (Appeal
No. 08-02) - An appeal of the Planning Commission Denial of CUP No. 08-03,
a request to obtain a Type 48 Alcoholic Beverage Control (ABC) license at
100 West Hospitality Lane (Continued from July 21,2008)
Mayor/Chairman Morris opened the hearing.
Terri Rahhal, Deputy Director/City Planner, stated that a Type 48 ABC license
was generally referred to as a bar or nightclub license and authorized the sale of
beer, wine and distilled spirits for on-site consumption. She noted that issuance
of a Type 48 ABC license required a finding of Public Convenience or Necessity
(PCN) from the City, which was required by the State Department of Alcoholic
Beverage Control in instances where there is an undue concentration of ABC
licenses in the area of the application. Ms. Rahhal stated that, as determined by
the State ABC Department, an undue concentration meant that the existing ratio
of ABC licenses to residents in a given census tract exceeds the County-wide ratio
of ABC licenses to residents.
She stated that on June 16, 2008, the Council considered a request for a PCN
determination for this site and found that public convenience and necessity would
not be served by a new Type 48 license issued at this location. She stated that
findings were issued that Hospitality Lane is a restaurant row with many
restaurants already serving alcohol to the public and that this alcohol service is
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08/04/2008
incidental to the food service they are already providing. Ms. Rahhal stated that
the Council found that any additional ABC licenses issued in this area should also
be restaurant licenses. Furthermore, the Council found that issuance of an
additional Type 48 license would be detrimental to the existing restaurants and
other businesses in the Hospitality Lane area. Ms. Rahhal stated that without a
PCN determination from the Council, the Planning Commission could not
approve Conditional Use Permit (CUP) No. 08-03 as requested. She stated that
in their decision to deny the CUP, the Planning Commission also considered
potential nuisances that were cited in letters from surrounding property owners as
well as interviews of the surrounding businesses that were conducted by the
Police Department.
Ms. Rahhal advised that the existing restaurants in the surrounding area have
Type 41 or Type 47 ABC licenses, which do not require the PCN finding or
approval by the State. She stated that a Type 41 license permits the sale of beer
and wine in a restaurant and a Type 47 license permits beer, wine and distilled
spirits. She added that both of these license types are issued for bona fide eating
places, which meant that the establishments must serve meals at normal meal
times and the gross receipts for prepared food must exceed the receipts for
alcohol at the location.
She stated that this appeal was a request that the Mayor and Council reconsider
the PCN determination that was denied on June 16, 2008, and that the Council
reverse the decision of the Planning Commission and approve CUP No. 08-03.
She stated that in a subsequent letter from Mr. Diamond dated July 25, 2008, he
requested either a reinstatement of a Type 48 license at this location, which did
exist at the site from 1994 to 1998, or the alternative request for approval of a
Type 47 license.
She noted that staff had inquired about the status of past or present ABC license
applications at the California Department of Alcoholic Beverage Control, and
they found that Manta Management had no pending application. She stated that
the previous Type 48 ABC license was granted prior to the statutory requirement
for a PCN determination from the City, and it was canceled voluntarily and
transferred to another location in 1998. Ms. Rahhal stated that the most recent
Type 48 license application that was filed this year was withdrawn from
consideration by the applicant on June 23, 2008, and so far no application for a
Type 47 license has been filed with ABC.
Ms. Rahhal stated that staff's recommendation on this item was that the Mayor
and Council deny the appeal and uphold the Planning Commission denial of CUP
No. 08-03. She advised that the recommended motion could be modified to
continue this matter for consideration of additional findings that may be
discussed, particularly with regard to reconsideration of the PCN determination,
or the motion may be modified to direct staff to facilitate a potential future
application for a Type 47 license should one be filed.
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She stated that this item was continued from July 21, 2008. She stated that the
appellant had not been notified of the previous hearing date and apologized to the
appellant and the Council for the oversight.
Council Member/Commissioner Brinker questioned whether staff would need to
do more investigation or prepare a new staff report for the Council if Manta
Management decided it wanted a Type 47 license instead of a Type 48 license.
Ms. Rahhal stated that should a Type 47 application be made to the State, the
Development Services Department would be informed. She stated that that type
of application would not require a determination from the Council, but staff
would need to work with ABC with regard to the requirements to convert the
facility to a restaurant, which was required for a Type 47 license. She stated that
there was an existing CUP on this site as a nightclub, and staff recommended that
it be modified as needed in order to convert the facility to a restaurant.
Council Member/Commissioner McCammack confirmed that a document from
ABC was included in their backup that indicated, as of today's date, that Manta
Management had withdrawn their request for a Type 48 license on June 23,2008.
Roger Jon Diamond, 2115 Main Street, Santa Monica, CA, Attorney for Manta
Management, stated that Ms. Rahhal acknowledged that they did not receive
notice of the meeting held on July 21, 2008. He stated that she sent him a letter
on July 22, 2008, stating that the appeal hearing was set for July 21, 2008, the
day before she sent the letter, and she acknowledged that they did not receive
"proper" notice. Mr. Diamond stated that they received "no" notice, and that is
why they did not appear for the hearing on July 21,2008.
He stated that on Friday, June 13, 2008, he received informal notice of the City
Council meeting of June 16, 2008. On June 16, he informed the Council that
they did not receive adequate notice and were not prepared; however, they did
not want to delay the process so they went forward. He stated that the Council
ruled against him on June 16, 2008 by determining that it would not be consistent
with the Public Convenience and Necessity to have a Type 48 license issued to
Manta Management to allow it to reopen as a topless facility. Mr. Diamond
stated that on the following night, June 17, 2008, the Planning Commission met
to consider the application for the Conditional Use Permit, and because of the
City Council's action on June 16, 2008, the Planning Commission meeting on
June 17, 2008, was a forgone conclusion; namely, they were bound to deny the
CUP because of the Council's action on June 16, 2008. Mr. Diamond stated that
on June 17, 2008, he appealed the Planning Commission decision denying the
CUP back to the City Council so when they went to court they wouldn't have the
City arguing to the judge that the appellant failed to exhaust his administrative
remedies.
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Mr. Diamond requested that the Mayor and Council reconsider their June 16
denial of the request that they determine that the Public Convenience and
Necessity would allow for this Type 48 license to be issued. He pointed out that
the City is not required by the Business and Professions Code to make a
determination with respect to Public Convenience and Necessity. He stated that it
would have been smarter to avoid any liability and let the Department of
Alcoholic Beverage Control make the decision. Mr. Diamond stated that the
Budget Motel received a Type 48 license in 2002, or at least it was
recommended, and he knew the argument of the City was going to be that a PCN
determination was not required for motels. Mr. Diamond added that he was not
aware that the Type 48 license was withdrawn on June 23, 2008, but if it was
withdrawn, it would have been temporary because of the City Council's action on
June 16, 2008. He stated that their first choice was for a Type 48 license, but if
they couldn't get that, their second choice was for a Type 47 license.
He stated that his impression is that the City would rule against Manta
Management and the Flesh Club no matter what they submit. He stated that the
plans that have been submitted to the City include a kitchen because the plan is
for a Type 41 restaurant with adult entertainment. Mr. Diamond indicated that
what the City basically is saying is that the area around Hospitality Lane is a
"family area" where adult entertainment would not be permissible, and any type
of application that comes before the City would be denied, which would go
against the court decisions. He stated that the City cannot use the claim that
Hospitality Lane is a family area and therefore no alcohol is allowed because
alcohol is allowed, and Ms. Rahhal had indicated that for a Type 47 license there
is no discretion as far as the City is concerned with respect to the PCN. With
respect to adult entertainment, Mr. Diamond stated that staff acknowledged that
there was an existing CUP and they would not have to come back to the City for
another CUP since it was already allowed. He stated that the City could say that
the existing CUP did not cover the exact business plan now proposed by Manta
Management, which was a Type 47 restaurant with adult entertainment. He
stated that if the City took that position, then they would have to come back either
to get a new CUP or to get the existing CUP modified. Mr. Diamond stated that
the City had to allow the Flesh Club to operate some type of business at the
location, even one that included an adult component. He stated that the City was
not free to revisit the entire issue because it had already gone to the courts and a
ruling had been made.
Mr. Diamond stated that if in fact there had been a technical withdrawal of the
application, which he was not aware of, it would only have been in the face of the
improper conduct of the City by not giving them adequate notice and in denying
the PCN request on June 16,2008, which led to the June 17,2008 denial by the
Planning Commission, and the appeal back to the City Council. He requested
that the Council determine that the PCN would allow for a Type 48 license at the
subject location so they would not have to go back to ABC and then go back to
the City.
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In conclusion, Mr. Diamond stated that they are requesting a Type 48
determination regarding Public Convenience or Necessity. He stated that they
want the Council to vacate the June 16, 2008 decision because it was linked to the
concept that adult entertainment is not appropriate at the subject location, and
they want the Council to reverse the decision of the Planning Commission denial
of the CUP because they think the findings can and should be made that the
business would be proper at the subject location given the court rulings.
Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to
the following individual that he would provide true and honest testimony:
Troy Neptune, General Manager of the Flesh Club, stated that he reviewed City
records of all the businesses that have ABC licenses and City approval for the sale
of alcohol in the same census district as the Flesh Club. Two boxes of records
were submitted into the record and were marked as Exhibit 1. Mr. Neptune
stated that there were 27 businesses operating with ABC licenses in the same
reporting district as the Flesh Club. He stated that it was his intention to operate
a Type 47 restaurant and that they were going to install a kitchen regardless of the
type of license. Mr. Neptune stated that the Flesh Club is still closed and could
not reopen until they received approval from the City, and they are still incurring
damages in the form of lost income because they have not been able to open.
City Attorney Penman invited Mr. Diamond and his client to apply for a Type 47
license.
Mr. Diamond stated that he did not believe that they would have to reapply and
start the process all over again. He stated that nothing precluded the City Council
from making a decision to approve a Type 47 license as opposed to forcing them
to go back to ABC.
Mr. Pemnan stated that the City of San Bernardino does not establish the
procedures for the California Department of Alcoholic Beverage Control and that
the State would be the one to determine whether they had to go back to ABC. He
stated that he did not believe Mr. Diamond's client would have any problem
getting a Type 47 license from ABC.
Mr. Diamond reminded Mr. Penman that this particular proposal was for a
restaurant with topless entertainment.
Mr. Penman stated that he thought Mr. Diamond knew that a Type 47 license
would not allow them to have topless entertainment.
Mr. Empello stated that the State Alcohol Beverage Control Board rules on the
applications for Type 47 licenses. He advised that according to Section 23958.4
of the State Business and Professions Code, the State makes the determination as
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to whether Public Convenience and Necessity would be served with the issuance.
Mr. Empefio added that this also applied to motels.
Regarding the issue of notice and whether the City gave legally adequate notice at
the June 16, 2008 Council meeting, Mr. Empefio stated that there was no
statutory requirement for a time period of notice for a determination of Public
Convenience and Necessity. However, he stated that he believed adequate notice
was given because Terri Rahhal indicated that she had given Mr. Neptune seven
days notice by telephone prior to the June 16, 2008 Council meeting. Mr.
Empefio recommended that the Council entertain a motion to reconsider the June
16, 2008 Council meeting determination of Public Convenience and Necessity, as
requested by Manta Management.
Mr. Diamond stated that notice would have to be better than a telephone call to
the Manager. He stated that whether or not it was a requirement that notice be
given for a hearing regarding PCN, they believe notice was required by due
process. He stated that this case was different and unique because the decision
that was made on June 16, 2008 was binding on the Planning Commission with
respect to a public hearing that it conducted where notice was clearly required.
Mr. Diamond stated that Mr. Pemnan had advised that it was not permissible to
have a Type 47 license with topless entertainment, so apparently it is the position
ofthe City that a Type 47 license would not apply to the Flesh Club.
Mr. Diamond stated that according to Ms. Rahhal they would have to come back
to the Development and Environmental Review Committee.
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner Kelley, that the Mayor and Common Council
reconsider the June 16, 2008 Council meeting determination on whether Public
Convenience or Necessity (PCN) is served by the application. The motion
carried unanimously with Derry absent.
Henry Empefio, Senior Deputy City Attorney, advised the Mayor and Council
that the form of entertainment being proposed was completely irrelevant to their
decision regarding the appeal of the CUP or the PCN fmding. He stated that the
Development and Environmental Review Committee was a staff level committee
made up of representatives of various departments in the City that makes
independent decisions on applications and was not under the control of the Mayor
and Council. Mr. Empefio stated that decisions of the DERC could be appealed
to the Planning Commission, and Planning Commission decisions could be
appealed to the City Council.
Mr. Diamond requested that staff research any cases where Type 48 licenses have
been approved and/or denied within the City.
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Lori Sassoon, Assistant City Manager, suggested continuing this matter for four
weeks to September 2, 2008, in order to give staff adequate time to complete the
research request.
Mr. Empeiio advised that this matter should be scheduled to a time certain at 4:30
p.m., on Tuesday, September 2,2008, and he asked if Mr. Diamond would agree
to waive further notice of said meeting.
Mr. Diamond agreed to the date and time of said meeting, and he agreed to waive
further notice.
Council Member/Commissioner McCammack asked if the Flesh Club could have
reopened the day the court gave them permission to do so.
City Attorney Penman stated that they could have reopened, but chose not to.
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner Kelley, that the matter be continued to the
Council/Commission meeting of Tuesday, September 2, 2008, at 4:30 p.m. The
motion carried unanimously with Derry absent.
44. Public Comments
Karen Kindig, 25th Street, San Bernardino, CA, spoke about the demolition of 40
homes that are being taken by the San Bernardino City Unified School District to
build the Wilson II elementary school and the reuse/reclamation of those building
materials.
Betty Jean Long, P. O. Box 1098, San Bernardino, CA, stated that the Police
Department took her to Arrowhead Regional Medical Center as a 5150.
M. Diosdado, 1960 Turrill, San Bernardino, CA, spoke in support of Turrill
Transitional Assistance.
Dana Price, 1960 Turrill, San Bernardino, CA, stated that he has great respect
for the Turrill Transitional Assistance program.
Charly Hall, 2442 Lincoln, San Bernardino, CA, stated that he is a disabled
veteran and in October 2005 he became homeless when the City forced him to
leave his home. He added that he now resides at Turrill Transitional Assistance.
Helvin Gonzalez, 1520 N. Stoddard Avenue, San Bernardino, CA, stated that for
three years he and his wife have been reporting illegal activity and trash behind
the lot at "E" and 15th Streets, but nothing has been done and he is fed up.
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08/04/2008
Virginia Gonzalez, 1520 N. Stoddard Avenue, San Bernardino, CA, stated that
she has been trying to deal with Code Enforcement for three years regarding the
lot at 15th and "E" Streets, that borders her property. She distributed pictures to
the Mayor and Council with the hope that something would be done about it.
Joe Ortiz, 387 W. 25th Street, San Bernardino, CA, spoke against the political
spending of taxpayers' funds and resources on Operation Phoenix.
Debbi Matley, 380 W. 17th Street, San Bernardino, CA, member of the National
Night Out Committee of San Bernardino, invited residents to attend the National
Night Out event on August 5, 2008, at Perris Hill Park, from 4 to 8 p.m.
Danny Singleton, 975 N. "D" Street, San Bernardino, CA, stated that he wanted
to discuss the demolition of his building at 324 W. Highland, and the fact that he
has been the victim of racism and harassment by the Code Enforcement
Department.
Charles Greenwood, San Bernardino, CA, City Refuse Department employee,
stated that there is a serious etiquette problem in the Refuse Department.
45. Adjournment
At 6:54 p.m., the meeting adjourned to 4:30 p.m., Wednesday, August 6,2008,
in the Council Chambers of City Hall, to discuss personnel and budget issues.
The next joint regular meeting of the Mayor and Common Council/Community
Development Commission is scheduled for 1:30 p.m., Monday, August 18,
2008, in the Council Chambers of City Hall, 300 North "D" Street, San
Bernardino, California.
RACHEL G. CLARK
City Clerk
BY~~"A/;/ ./
Linda Sutherland
Deputy City Clerk
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