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CI'19 OF SAN BERNARDIQ - REQUIEOr FOR COUNCIL AC;:;bN
From:
Michael W. Loehr
Interim Director of Planning
Planning
Subject:
Appeal of Planning Commission's
Denial of Extension of Time for
Conditional Use Permit No. 87-15
Mayor and Common Council Mee
August 1, 1988, 2:00 p.m.
Dept:
Date:
July 15, 1988
Synopsis of Previous Council action:
On May 6, 1987, the Planning Commission approved Conditional Use Permit
(CUP) No. 87-15 for an automobile service station and convenience food
store with off-site sales of beer and wine. This approval was effective
until May 6, 1988.
On June 21, 1988, the Planning Commission denied the extension of time
request for CUP No. 87-15 beyond the time limit of May 6, 1988.
There has been no previous Council Action.
Recommended motion:
That the Mayor and Common CQuncil deny the appeal and deny the
extension of time request for CUP No. 87-15.
IMJ~L!t
Signature Michael W. Loehr
Contact person:
Michael W. Loehr
Phone:
5357
Supporting data attached:
Staff Report
Ward:
1
FUNDING REQUIREMENTS:
Amount:
N/A
Source: (Acct. No.)
(Acct. Descriotion)
Finance:
Council Notes:
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CI~ OF SAN BERNARDI~ - REQUEOr FOR COUNCIL AC'hbN
STAFF REPORT
Subject:
Appeal. of
Extension
No. 87-15
Planning Commission's Denial of
of Time for Conditional Use Permit
Mayor and Common Council Meeting
August 1, 1988, 2:00 p.m.
REOUEpT
To extend the effective approval period of Conditional Use
Permit (CUP) No. 87-15 from May 6, 1988 to May 6, 1989, by
appealing the Planning Commission's denial of the extension
of time request. (Attachment nAn).
Il.ACKGROUND
On May 6, 1987, CUP No. 87-15 was approved by the Planning
Commission. This approval permitted the construction and
operation of an auto service station and convenience food
store with off-site sale of beer and wine in the C-4, Central
Business District located at the northwest corner of Second
Street and nGn Street between May 6, 1987 and May 6, 1988.
(Attachments 0 & E).
An extension of time was requested due to budgeting reasons.
However, new findings of fact for Conditional Use Permits for
off-site sale of beer and wine have been adopted and must be
made for extension of time of approval period requests. These
findings must be made.
The Police Department has cited an undue concentration of
off-site alcohol licenses in the reporting district. However,
the general vicinity of the proposed alcohol outlet does not
have a saturation of similar use.
~p~~~~S RECEIVED
The Police Department is apposed to this opening of a beer
and wine outlet. According to Sgt. Ernie Tull of the San
Bernardino Police Department, the crime rate for this
reporting district is 44% above the average crime rate for
the City and 45% of the arrests are alcohol related. He also
stated that the census tract has an undue concentration of
off sale alcohol licenses (Attachment nCn) with one permitted
and seven existing. The Police Department has protested to
the Alcohol Beverage Control to deny a request for an alcohol
license at this site. ABC accepted their protest and an
administrative hearing was held on March 8, 1988. The
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MAYOR AND COMMON COUNCIL MEETING
August 1, 1988
Page 2
recommendation made by Administrati.ve Law Judge, W. F. Byrnes
was that:
1. The Protest is sustained,
2. The Petition is denied.
The applicant may appeal this decision (Attachment "B").
CONCLUSIQN
The applicant has requested an extension of time. The police
Department is opposed to the extension due to the high crime
rate and undue concentration of alcohol outlets in the census
tract. The Alcohol Beverage Control has supported the police
Department by not issuing an ABC license for this site. The
City Council has also adopted an additional set of Findings
of Fact for alcohol permits. Staff cannot make all of the
required Findings of Fact.
MAYoR_~~P ~OV~~~_OPTIONS
The Mayor and Council may deny the appeal and deny the
extension of time request for CUP No. 87-15 or uphold the
appeal and grant an extension of time until May 6, 1989.
RECOMMENDA~~O~
Deny the appeal and deny the extension of time request for
CUP No. 87-15.
Prepared by: John Montgomery, Principal Planner
For: Michael W. Loehr, Interim Director of Planning
Attachments: A - Letter of Appeal
B - ABC Certificate of Decision
C - Locations of other Alcohol Outlets
o - Site Plan
E - Location Map
csj/7-l5-88
DOC:M&CCAGENDA
CUP87l5
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""..< .' t.:J~ 1 aTTACHMENT "At)
ARCO Petroleum Products Comp.ny
17315 Studebaker Ro.d
Mailing Address: Sox 6411
Cerritos. California 90701
Telephone 213 40455BO
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July 1, 1988
Mayor Evlyn Wilcox and Common Council
City of San Bernardino
300 N."D" Street
San Bernardino, CA 92418
Honorable Mayor and Members of Common Council:
We want to appeal the denial by the City of San Bernardino
Planning Commission on June 21, 1988 of ARCO's request for an
extension of Conditional Use Permit 87-15.
This extension is necessary because the conditions required by
Alcoholic Beverage Control cannot be resolved before the approved
Conditional Use Permit 87-15 expires.
Your consideration is appreciated.
Very truly yours,
cPJJ~
t.;) "iIlf" ---f'. D. Lippert
(711,1J4T- Real Estate Representative
cc: C. T. Fulkerson
J. D. Spear
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Attachment B
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STATE OF CALIFORNIA
DEPARnolENT OF ALCOHOLIC BEVERAGE CONTROL
CERTIFICATE OF DECISION
r1M lilt
I) IJ 2 aJesr e:J,JF} ~ -
FILE 2011134
REG. 5736
.
It is hereby certified that the Department of Alcoholic Beverage
Control, having reviewed the findings of fact, determination of issues and
recommendation in the attached proposed decision submitted by an Administrative
Law Jud;?;e of the Cfrice of Ad:ninistrative Hearings, adopted said proposed
decision as its decision in the case therein described on rmrch 31, 1988.
Tnis Decision shall becane operative 14ay 16, 1988.
SacrS!llento. California
Dated: March 31. 1988
Caro~ Roberson
C1nef, aring and Legal
Any appeal of this decision :Dust be made in accordance with Chapter 1.5,
Articles 3, II and 5, Division 9 of the ~siness and Professions Code. For
further information, call the Alcoholic Beverage Control Appeals Board at
(916) 11115-11005, or mail your wl'itten appeal to Alcoholic Beverage Control
Appeals Board, 1001-Sixth Street, SUite 1101, Sacra:nento, CA 95814.
ABC-127(3-87)
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BEFORE THE
DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL
STATE OF CALIFORNIA
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And In The Matter Of The Petition )
For Said License Under The Alcoholic )
Beverage Control Act. )
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In the Matter of the Protest of:
DONALD J. BURNETT,
P.O. Box 1559
San Bernardino, CA
Chief of police
92401-1559
Against the Issuance of an Off-Sale
Beer and Wine License to:
ALBER I. SAID
Mena 's AM/PM
702 West Second
San Bernardino,
Street
CA 92410
PROPOSED DECISION
FILE: 201434
REG: 5736
REPORTER: (Outside)
FOLIOS: 240
OAB NO. L-41988
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This matter came on regularly for hearing before
W. F. Byrnes, Administrative Law Judge of the Office of
Administrative Hearings, at San Bernardino, California, on
February 17, 1988. Del Haws, Staff counsel, represented the
Department of Alcoholic Beverage Control. Sgt. E. Tull
represented the protestant. Rick A. Blake, Attorney at Law,
represented the petitioner. Evidence was received, the
matter was submitted, and the Administrative Law Judge pro-
poses the following decision.
The issue to be determined in this matter is
whether or not issuance of the applied-for license would be
contrary to public welfare and morals in that:
A. As to the protest:
1. Issuance of the license to the proposed
premises would tend to create a law enforcement
problem or aggravate an already existing police
problem.
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2. Issuance of the license to the proposed
premises would result in or add to undue
concentration of licenses.
B. As to the petition, as set forth in the
Statement of Issues:
"Issuance of the applied for license would be
contrary to public welfare or morals as provided
in Article XX, Section 22 of the Constitution of
the State of California and Section 23958 of the
Business and Professions Code and Rule 61.3 of
Chapter 1, Title 4 of the California Administrative
Code.
without limitation to the foregoing, it is more
specifically alleged as follows:
1. Issuance of the applied-for Off-Sale Beer' Wine
license would result in or add to an undue
concentration of licenses, to-wit:
a. The applicant premises is located in San
Bernardino police Department reporting
district 1530 which has a 20' greater
number of reported crimes than the average
number of reported crimes in all crime
reporting districts within the City of San
Bernardino and within the jurisdiction of
said law enforcement agency.
.
b. The applicant premises is located in census
tract 157 in San Bernardino county, which bas
a population of 870 as determined by the most
recent United States Census, and there are
seven (7) off-sale retail licenses in said
census tract 157 and the ratio of off-sale
retail licenses exceeds the ratio in San
Bernardino County, which is one off-sale
retail license to each 958 persons.
2. Issuance of the applied-for license would tend
to aggravate an existing law enforcement
problem.
a. The proposed premises is located in a
police problem area which has had the
following arrests and reported crimes for
the 1986:
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1. Total combined Part I crimas and Part II
arrests for San Bernardino Police Depart-
ment reporting district 530 were 878 which
exceeds the city average by 441%.
2. The following Part II arrests occurred in
San Bernardino police Department Reporting
District 530, which reflects 51% were
alcohol and narcotics related:
Total Number of
Part II Arrests
Total Number of
Alcohol/Narcotics
Arrests
Percentage of
Total Part II
Arrests Related
to Alcohol/Narcotics
292
130
45%
Citations for liquor law violations increase the
total to 149.
Violations
Number
Drunk
Drunk Driving
Liquor Laws
Narcotics
95
8
3 + 19 citations
24
.
Total:
149
b. The San Bernardino Police Department has an
on-going problem with transients gathering
in the area of the proposed premises. A
special two-car detail was assigned to
attempt control of the problem has not been
successful. Citizens patronizing businesses
in the area are subjected to panhandling,
annoyance, purse snatching and open container
violations from this transient population."
FINDINGS OF FACT
I. The license request herein is for an original
Type 20 off-sale beer and wine license, for an existing
24-hour gas station which would include a convenience store.
2. Pursuant to the provisions of sections 23800
through 23805 of the Business and Professions Code, the
applicant has petitioned for a conditional license,
conditioned as follows:
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"I. There is maintained upon tl,p' premises
a building or other suitable enclosed
structure to be licensed as provided in
section 24040 of the Act, and all sales
of alcoholic beverages shall be made frolll
within the licensed enclosure.
2. The sale and delivery of alcoholic
beverages shall be made to persons who are
within the licensed premises only and not
through a pass-out window or a slide-out
tray to the exterior of the premises.
3. Alcoholic Beverages offered for sale at the
licensed premises shall be displayed and
available for convenient inspection and
purchase within the premises by the general
public.
4. No alcoholic beverages shall be sold to any
person while such person is in a motor
vehicle.
5. No alcoholic beverages shall be consumed on
any portion of the licensed premises or any
portion adjacent thereto which is under.
the control of the licensee."
The applicant has also petitioned for the following
license conditions:
"That neither Morcos H. Morcos, aka Morcos Hanna,
or Mahram H. Markos shall have any interest,
directly or indirectly, in the ownership, manage-
ment, or operation of the licensed premises, and
may only be employed at the licensed premises in
the capacity of a salaried employee, receiving no
percentage of sales/or profit."
3. The parties have stipulated that the statistical
data contained in subparagraphs 1<a), 1<b), 2(a) (1), and
2(a)(2) of the Statement of Issues are true and correct.
4. The proposed premises is located on the north-
west corner of the intersection of 2nd Street and G Street
in downtown San Bernardino, just west of Central City Mall,
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a major enclosed shopping center. 2nd Street is a heavily
traveled 6-lane major thoroughfare which pruvides access to
the nearby Interstate 215 freeway. G Street is a well-used
4-lane business street. The intersection is signal-controlled.
There are no other off-sale licensed premises on 2nd Street
in this area.
5. This entire downtown area is infested with
vagrants and drunks who cause a constant police problem with
panhandling, theft, public drinking, public urination, and
public intoxication. Many of these undesirables apparently
enter town on the railroad (Amtrak station is nearby, as is
a major switching area of the AT & SF), and some of them
live in burrows dug into the brush along the nearby freeway.
They tend to congregate around the licensed premises and
other businesses in the area, and there to molest, annoy,
and harass the public. The police have a permanent drunk
patrol assigned to the area, which requires an undue amount
of police services. In the opinion of the police, licensing
the proposed premises would increase the police problems of
the area: sufficient competent evidence was offered to
establish the probable validity of that opinion.
6. The applicant has not made a sufficient showing
of public convenience or necessity to overcome the effect
here of Rule 61.3.
.
DETERMINATION OF ISSUES
1. Issuance of the license to the proposed premises
would tend to aggravate an already existing police problem.
2. Issuance of the license to the proposed premises
would result in or add to undue concentration of licenses.
3. Issuance of the license would be contrary to
public welfare and morals.
RECOMMENDATION
Dated:
1. The protest is sustained.
2. The petition is denied.
-:?-tf'"-er;r
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Administrative Law Judge
Office of Administrative Hearings
WFB: mh
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BEFORE THE
DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL
OF THE STATE OF CALIFORNIA
IN THE MATIER OF THE PROTEST OF:
Donald J. Burnett, Chief of Police
P.O. Box 1559
San Bernardino, CA 92401-1559
AGAINST THE ISSUANCE OF AN
OFF-SALE BEER & WIllE LICENSE TO:
FILE 201434
REG. 5136
Alber I. Said
I-lena's Ai'1lP:1
702 W. Second Street
San Bernardino, CA 92410
. And In The Matter Of The Petition For Said
License under the Alcoholic Beverage Control Act.
The undersigned declares:
DECLARATION OF
SERVICE BY HAIL
#
I ~~ over eighteen years of age, and not a party to the 'odthin cause; T.Y
business acdress is 1901 Broadway, Sacra~ento, California, 95818. I served by
X-CERTIFI~ *-REGu~R mail a copy of the following doc~ents:
DECISION
on each of the following, by placing same in an envelope(s) addressed as
follows:
X-Alber I. Said, 702 t1. Second Street, San Bernardino, CA 92410
X-Rick A. Blake, Attorney at Law, 2700 North Main Street, Suite 850,
Santa Ana, CA 92701
*_Donald J. Burnett, Chief of Police, P.O. Box 1559, San Bernardino,
CA 92410, Attn: Sgt. E. Tull
Each said envelope was then, on r.larch 31, 1988, sealed and deposited
in the United States Mail at Sacramento, California, the county in which I am
employed, with the postage thereon fully pre;Jaid.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on March 31, 1988 at Sacramento, California.
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AGENDA
ITEM #
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~ DEPARTMENT
Extension of Time
CASE CUP NO. ~7-15
HEARING DATE ...6.L21J.RR
11
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