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HomeMy WebLinkAbout10- Community Development ORIGINAL CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION From: Valerie C. Ross, Interim Director Subject: An ordinance of the City of San Bernardino amending San Bernardino Municipal Code Section Dept: Community Development 19.06.030(2)(B) (Development Code) to require a Conditional Use Permit for new alcoholic beverage Date: August 16, 2010 sales activities and to establish deemed approved status for legal nonconforming activities (Development Code Amendment No. 10-04). MCC Date: September 7, 2010 Synopsis of Previous Council Action: 8/03/2010 Legislative Review Committee(LRC)recommended approval of the proposed Deemed Approved Ordinance. 5/03/2010 Mayor and Common Council adopted MC-1323U, an urgency Deemed Approved Ordinance, and referred the matter to the Planning Commission and LRC. 4/05/2010 Mayor and Common Council heard a presentation by Dr. Robert Nash Parker on the effects of selling single serve containers of alcohol in the City of San Bernardino. Recommended Motion: That the hearing be closed and said ordinance be laid over for final adoption. 'Valerie C. Ross Contact Person: Terri Rahhal, City Planner Phone: 3330 Supporting data attached: Staff Report Ward(s): Citywide FUNDING REQUIREMENTS: Amount: N/A Source: Acct. Description: Finance: Council Notes: x/7/1 n. # 2.7 C AJ. Agenda Item No. Oq��%G i CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION STAFF REPORT Subiect: An ordinance of the City of San Bernardino amending San Bernardino Municipal Code Section 19.06.030(2)(B) (Development Code) to require a Conditional Use Permit for new alcoholic beverage sales activities and to establish deemed approved status for legal nonconforming activities(Development Code Amendment No. 10-04). Back round• On April 5, 2010, the Mayor and Common Council heard testimony and presentations about the negative effects of selling single servings of alcoholic beverages. Dr. Robert Nash Parker of the Presley Center for Crime and Justice Studies and Dan Skiles of the Institute for Public Strategies presented findings from a study conducted in 2007—2009 in the City of San Bernardino. On May 3, 2010, the Mayor and Common Council adopted Urgency Ordinance MC-1323U, an ordinance amending the Municipal Code (Development Code) to require a Conditional Use Permit for new alcoholic beverage sales activities and to establish automatic deemed approved status for legal nonconforming activities. This ordinance, referred to as a "Deemed Approved" ordinance, provides a programmatic approach to reducing and preventing negative impacts of alcoholic beverage sales in the City. The Mayor and Common Council referred the matter to the Planning Commission and the Legislative Review Committee for further review and preparation of a regular ordinance to amend Section 19.06.030(2)(B)of the Development Code. On May 26, 2010, a preliminary draft of the proposed Deemed Approved Ordinance was presented to the Planning Commission as Development Code Amendment (DCA) No. 10-04. After hearing presentations by Dr. Parker, Dan Skiles and Amelia Sanchez Lopez of the County Public Health Department, the Planning Commission continued the item pending additional staff review and revisions to the draft ordinance. On July 28, 2010 the Planning Commission heard the item. Exhibit 3, "Reducing Community Alcohol Problems Associated with Alcohol Sales: The Case of Deemed Approved Ordinances in California" and Exhibit 4, a memo presenting the final staff recommendation, were distributed at the Planning Commission meeting. The Planning Commission Staff Report (Exhibit 5) contains an explanation of current regulations related to alcoholic beverage sales activities and a summary of the changes and new requirements in the proposed ordinance. Testimony was given by supporters of the Deemed Approved Ordinance, local business owners, representatives of restaurant and retail market associations, the Public Health Department, Police Department Lt. Ron Maass, Emil Marzullo, Executive Director of the Economic Development Agency and the City Attorney. The Planning Commission recommended approval of DCA No. 10-04 on a vote of 4 — 2. Commissioners Eble, Heasley, Mulloz and Sauerbrun voted in favor of the motion to recommend approval, with additional language to exempt fraternal organizations from new location criteria. Commissioners Coute and Mulvihill voted against the motion, citing potential impacts on businesses in the City. Commissioner Coute stated that the ordinance did not adequately define 2 the costs of enforcement and permit fees. Commissioner Mulvihill stated that he did not support the ordinance because of the impact it could have on small markets in low-income neighborhoods in the City. Commissioners Calero, Dort, Machen and Rawls were absent. On August 3, 2010, the Legislative Review Committee, Council members Marquez and Shorett, voted to recommend the ordinance for adoption as recommended by the Planning Commission, except that they recommended deleting the section referring to an annual permit fee to be established by resolution. The LRC members agreed that the costs of implementing the Deemed Approved Ordinance should be evaluated before staff can recommend the amount of a permit fee or who should be required to obtain the permit. Councilwoman Mc Cammack was absent. DCA No. 10-04 is not subject to the California Environmental Quality Act (CEQA), pursuant to Section 15061(b)(3) of the CEQA Guidelines, the general rule that an action with no foreseeable physical impact on the environment is not a project as defined by Section 15378 of the CEQA Guidelines. Notice of the public hearing of this item was published in a 1/8 page advertisement in the San Bernardino County Sun newspaper on August 28, 2010. Financial Impact: Undetermined. The ordinance provides for a permit fee to be established by resolution when the costs of implementation are determined. Recommended Motion: That the hearing be closed and said ordinance be laid over for final adoption. Exhibits: 1. Ordinance 2. 7/29/10 Memo to LRC 3. "Reducing Community Alcohol Problems Associated with Alcohol Sales: The Case of Deemed Approved Ordinances in California"by James F. Mosher, Carol Cannon and Ryan Treffers, September 2009. 4. 7/27/10 Memo supplement to the Planning Commission Staff Report 5. Planning Commission Staff Report Attachments: A. Draft Ordinance B. Strikeout/underline version illustrating changes from MC-1323U C. "Effectiveness of Alcohol Policy Regulation A Summary of Research from the Prevention Field" by Dan Skiles, Institute fro Public Strategies & Annette Padilla, MPH Consultant. 6. Additional documents distributed to the Planning Commission (on CD): • April 5, 2010 Request for Council Action • May 3, 2010 Request for Council Action • "Regulatory Strategies for Preventing Youth Access to Alcohol" • 'Preventing Sales of Alcohol to Minors" • "Policies to Prevent Alcohol Problems" • 'Gang Violence and Alcohol Policy" • Lists of On-Sale and Off-Sale ABC Licenses in the City 3 EXHIBIT 2 CITY OF SAN BERNARDINO Community Development Department Interoffice Memorandum TO: Legislative Review Committee FROM: Valerie C. Ross, Interim Director j THROUGH: Charles McNeely, City Manager SUBJECT: Update regarding the Deemed Approved Ordinance for Alcoholic Beverage Sales DATE: July 29, 2010 COPIES: On May 3, 2010,the Mayor and Common Council adopted Urgency Ordinance MC-1323,the "Deemed Approved"ordinance, and referred the magerto the Legislative Review Committee and Planning Commission. The Planning Commission scheduled a public hearing for May 26, 2010 and heard presentations by Dr. Robert Nash Parker of the UCR Presley Center for Crime and Justice Studies and Dan Skiles,of the Institute for Public Strategies. The public hearing was continued to June 9 and then to June 23. At their meeting of July 28, 2010, the Planning Commission recommended approval. Since adoption of the urgency ordinance, staff from Community Development, the City Manager's Office,Police Department, and City Attorney's Office has had numerous meetings to discuss the Deemed Approved ordinance. Community Development identified concerns with applicability and the Police Department identified concerns with implementation. The concerns related to applicability have been addressed,but the implementation concerns have not been resolved. As a result, staff would like to discuss with the Legislative Review Committee. The attached strikeout/underline version includes all revisions to date. Attachments: 1 Proposed Revised Ordinance 7/21/10 CITY ATTORNEY DRAFT I ORDINANCE NO. 2 AN URGENGY-0RDINANCE OF THE CITY OF SAN BERNARDINO AMENDING 3 SAN BERNARDINO MUNICIPAL CODE SECTION 19.06.030(2)(B)(DEVELOPMENT CODE) REQUIRING A CONDITIONAL USE PERMIT FOR NEW ALCOHOLIC BEVERAGE SALES a ACTIVITIES AND ESTABLISHING AUTOMATIC DEEMED APPROVED STATUS FOR LEGAL NONCONFORMING ACTIVITIE ,DECLARING TRE URGENCY THEREOF AND s 6 7 The Mayor and Common Council of the City of San Bernardino do ordain as follows: 8 WHEREAS, Section 40(z)of the City Charter vests the Mayor and Common Council with the power to make and enforce all laws and regulations with respect to municipal affairs, subject only to the 9 restrictions and limitations provided in the Charter or by State law;and 10 lSnWREAA C Seetie—ns I1 d 121 ..Cat... City ChaFt ff r_-.vide f .,.] r the adoption e f an urgene y 11 P;dainawnee for L d' Y of the publ:e p e hea of safety S.. sled 1..,_e a thkd+e 12 (2,13)io ♦vote of the Catme:l. and 13 WHEREAS,research shows that areas with greater densities of on-site and off-site alcohol outlets also generally have higher rates of motor vehicle crashes,alcohol-related hospital admissions, 14 pedestrian injury collisions, self-reported injury and drinking and driving among both young people and adults; and 15 16 WHEREAS,the relationship between alcohol outlet density and violent crime has been well documented;communities with 100 or more alcohol outlets and a population of 50,000 or more can 17 expect an annual increase of 2.5 violent crimes each year for every alcohol outlet added in the area; and 18 WHEREAS,drunk driving arrests often take place at night, as bars are closing and highways 19 become crowded with patrons who have been drinking; and 20 WHEREAS, studies indicate the rate of alcohol-related crashes can be reduced by responsible beverage service training programs,but the level of risk still is high when outlet density exceeds the 21 acceptable levels of saturation; and zz WHEREAS,nuisance and criminal activities such as drug dealing,public drunkenness,loitering 23 and other behaviors that negatively impact neighborhoods occur with disproportionate frequency at and 24 around the premises of on-site and off-site sale alcohol uses;and 25 WHEREAS,neighborhood character can change over time and the careful regulation of nuisance activity by on-site and off-site alcohol uses will help to ensure that such uses do not contribute 26 to the deterioration of neighborhoods;and 27 WHEREAS,the citizens of the City of San Bernardino have complained to the San Bernardino 28 Police Department about said nuisance and criminal activities; and 1 C`\Documents and Sett nesirobinso sh\Mv Doc mentsNALERIE\7-28-10 Strikeout DAO PC recommendation.do Staf€RenxrtsF20JP07 U 10 Aeereved doeQ\pomffi ats aAd°_ttingohen> M@ 7/21/10 CITY ATTORNEY DRAFT I WHEREAS,there are many establishments in the City of San Bernardino selling alcoholic 2 beverages that do not conform with the Development Code and, as a result,these establishments generate a disproportionate amount of public nuisance service calls for service for the San Bernardino 3 Police Department; and a WHEREAS,for the above reasons and these provided dm*the heafing en this Ordiamee,the s Mayor and Common Cou—neil find that thefe.is R eurFent and im ediate thfeatte the ptiblieheaW Ha 6 ef off site aleehel ettfiets watild Fesuh in duA dffeat to publie health, safety or welfiue. 44io Mayor an Common Gouneil fu#her find that the adoption of this Ufgeney Ordinanee regulating the establishme sad opeFation of on site or off site aleehal outlets is neeessary for the iinmediate preservation of the 7 a 9 WHEREAS, California law does not preempt local land use and zoning regulations with regard to the sale of alcoholic beverages and the authority to regulate nuisance conditions created by state- 10 licensed alcoholic beverage retailers derives from the City's Charter and general law police powers. 11 WHEREAS,the City of San Bernardino recognizes its responsibility to enforce the law and the 12 need for a partnership with alcoholic beverage sale establishments and the community to address illegal 13 activities in proximity to an alcoholic beverage sales establishment. 14 WHEREAS,the City wishes to require certain new eaek new owner or now heeIRS00 Of—aJ3 alcoholic beverage sale establishments to semmobtain a conditional use permit to lawfully engage in the 15 sale of alcoholic beverages within the City; and 16 WHEREAS,the conditional use permit will require the business owner to comply with 17 operational standards and training requirements as conditions of the conditional use permit; and 18 WHEREAS,the City wishes to designate each lawfully established and existing alcoholic 19 beverage sale business to be"deemed approved"to lawfully engage in the sale of alcoholic beverages and be required to comply with operational standards as conditions to its deemed approved status; and 20 WHEREAS,the California Court of Appeals in City of Oakland, et al. v. Superior Court, et al., 21 45 Cal.App.4" 740(1996)held that a similar"deemed approved"ordinance was not preempted by state 22 laws regulating the sale of alcoholic beverages because the ordinance merely created an administrative mechanism for enforcing nuisance and criminal laws that were applicable to all alcoholic beverage 23 establishments,even those in operation before the ordinance's effective date; and 24 WHEREAS,the Mayor and Common Council, by adopting this ordinance,have no intention to 25 regulate the sale of alcoholic beverages, but merely a desire to create an administrative mechanism applicable to all alcoholic beverage establishments,to address the nuisance and criminal activities 26 described above; and 27 WHEREAS, an annual use permit fee will be imposed on all alcoholic beverage sale 28 establishments in order to provide the revenue necessary to fund the costs incurred by the City to monitor compliance and enforce the conditions of the conditional use permit and the standards for 2 C:\Documents end Settings\robinson shNy Documents\VALERIE\7-28-10 Strikeout DAO PC recommendation doC� pq� 721 7/21/10 CITY ATTORNEY DRAFT I Deemed Approved businesses, and implement programs that promote responsible policies and practices 2 of businesses engaged in the sale of alcoholic beverages; and 3 WHEREAS, the annual use permit will establish standards of operation for licensed alcoholic beverage sale establishments in order to promote successful business practices compatible with healthy 4 economic growth, community safety, and quality of life of San Bernardino residents; 5 NOW,THEREFORE,THE MAYOR ANDCOMMON COUNCIL OF THE CITY OF SAN 6 BERNARDINO DO ORDAIN AS FOLLOWS: 7 SECTION 1. San Bernardino Municipal Code Section 19.06.030(2)(B) (Development Code) is 8 amended to read as follows: 9 Section 19.06.030(2)(B) 10 I I ARTICLE I—GENERAL 12 SECTION I—TITLE AND PURPOSE 13 A. Title: 14 (1)This ordinance shall be(mown as the Conditional Use Permit-Deemed Approved Alcoholic 15 Beverage Sales Regulations Ordinance. 16 (2)This ordinance requires land use permits for newly established alcoholic beverage sales 17 activities,confers deemed approved status for existing alcoholic beverage sales activities and provides standards and an administrative hearing process to review violations of those standards in order to 18 protect the general health,safety, and welfare of the residents of the City of San Bernardino and to 19 prevent nuisance activities where alcoholic beverage sales occur. 20 B. Purpose: 21 (1) To protect residential, commercial, industrial and civic areas and minimize the adverse 22 impacts of nonconforming and incompatible uses; and 23 (2) To provide opportunities for alcoholic beverage sales establishments to operate in a mutually beneficial relationship to each other and to other commercial and civic services; and 24 25 (3) To provide mechanisms to address problems associated with the public consumption of alcoholic beverages such as litter, loitering, graffiti, unruly behavior and escalated noise levels; and 26 (4) To provide that alcoholic beverage sales establishments are not the source of undue public 27 nuisances in the community; and 28 3 C\Documents and Settines\robinson ShNv Documents\VALERIE\7-28-10 Strikeout DAO PC recommendation.doc& IFi1RE ssai. tie 7/21/10 CITY ATTORNEY DRAFT 1 (5) To provide for properly maintained alcoholic beverage sales establishments so that the 2 negative impacts generated by these activities are not harmful to the surrounding environment in any way; and 3 (6) To monitor Deemed Approved establishments to ensure they do not substantially change in 4 mode or character of operation- 5 SECTION II—DEFINITIONS 6 The meaning and construction of these words and phrases, as set forth below, shall apply 7 throughout,except where the context clearly indicates a different meaning or construction. 8 (A)"Administrator"means the Administrative Hearing Officer as identified in Section Ill. 9 (B)"Alcoholic Beverage"means alcohol, spirits, liquor,wine,beer, and any liquid or solid 10 containing alcohol,spirits,wine,or beer,that contains one-half of one percent or more of alcohol by I I volume and that is fit for beverage purposes either alone or when diluted,mixed or combined with other substances,the sale of which requires a ABC license. 12 (C)"Alcoholic Beverage Sales Activity"means the retail sale of alcoholic beverages for onsite 13 or offsite consumption. 14 (D) "Alcoholic Beverage Sales Establishment'means an establishment where an alcoholic 15 beverage sales activity occurs.Alcoholic beverage sales establishments include but are not limited to the following recognized types of establishments: liquor stores;beer and wine stores; convenience markets; 16 markets;neighborhood specialty food markets; retail sales establishments;wine shops; service stations; 17 taverns;clubs;cocktail lounges,ballrooms,cabarets, dance bars,piano bars; billiard or game parlors, bowling alleys; nightclubs, dance halls; cafes,bars, restaurants with bars; full-service restaurants; and 18 fast food establishments. 19 (E)"California Department of Alcoholic Beverage Control'or"ABC"refers to the department 20 of the State of California empowered to act pursuant to Article 20, section 22,of the California Constitution and authorized to administer the provisions of the Alcoholic Beverage Control Act. 21 22 (F) "Conditions of Approval"means a requirement that must be carried out by the activity by: (1)a new alcoholic beverage sales activity to exercise a land use permit; or(2)a legal nonconforming 23 alcoholic beverage sales activity to comply with deemed approved performance standards and to retain its deemed approved status. 24 25 (G)"Deemed Approved Activity"means any Legal Nonconforming alcoholic beverage sales activity, as defined in subsection(.l). Such activity shall be considered a Deemed Approved activity as 26 long as it complies with the Deemed Approved Performance Standards set forth in Article III, Section IV. 27 28 4 C:\Documents and Settings\robinson sh\Mv Documents\VALERIE\7-28-10 Strikeout DAO PC recommendation.do 361F6 dmGADA,umm ad c_..:_ * I 7/21/10 CITY ATTORNEY DRAFT I (II)"Deemed Approved Status"means the permitted use of land for a Deemed Approved 2 Activity. Deemed Approved status replaces Legal Nonconforming status with respect to Alcoholic Beverage Sales Commercial Activity and remains in effect as long as it complies with the Deemed 3 Approved provisions and performance standards. 4 (I)"Illegal Activity"means an activity,which has been finally determined to be in 5 noncompliance with the Deemed Approved provisions and performance standards. Such an activity shall lose its Deemed Approved status and shall no longer be considered a Deemed Approved activity. 6 (J) "Legal Nonconforming Alcoholic Beverage Sales Commercial Activity"or 7 "Legal Nonconforming Activity"means an Alcoholic Beverage Sales Commercial Activity which was a 8 nonconforming use pursuant to San Berardino Municipal Code (Development Code)Chapter 19.62, and for which a valid state of California Alcoholic Beverage Control license had been issued and used in 9 the exercise of the rights and privileges conferred by the license at a time immediately prior to the effective date of the Deemed Approved Alcoholic Beverage Sale Regulations Ordinance. Such an 10 activity shall be considered a Deemed Approved Activity and shall no longer be considered a Legal 1I Nonconforming Activity. 12 (K)"Off-Sale Alcohol Outlet"means an establishment that conducts retail sales of Alcoholic 13 Beverages for consumption off the premises where sold. 14 (L)"On-Sale Alcohol Outlet"means an establishment that conducts retail sales of Alcoholic Beverages for consumption on the premises where sold. 15 (M)"Operational Standards"means regulations for the business practice activities and land use 16 for locations with a Conditional Use Permit or those further requirements imposed to achieve these 17 goals. Operational Standards constitute requirements which must be complied with by an establishment in order to maintain its Conditional Use Permit. 18 19 (N)"Performance Standards"means regulations for the business practice activities and land use for locations with Deemed Approved status or those further requirements imposed to achieve these 20 goals. Performance Standards constitute requirements which must be complied with by an establishment in order to retain its Deemed Approved status. 21 22 (0)"Permit"means a Conditional Use Permit issued pursuant to this ordinance. 23 (P)"Per ittee"means the individual or entity that owns an alcoholic beverage sale establishment and to whom a Conditional Use Permit to operate an alcoholic beverage sale 24 establishment has been issued by the City of San Bernardino. 25 (Q)"Premises"means the actual space within a building devoted to alcoholic beverage sales. 26 (R) "Restaurant—meaz3s'means a bona fide eating place whose predominant function is the 27 service of food and where on-site sale of alcoholic beverages is incidental or secondary. 28 5 CADocuments and Settin¢s\robinwn sh\Mv Documents\VALERIE\7-28-10 Strikeout DAO PC mcommendat on doC�6 paeum 711 7/21/10 CITY ATTORNEY DRAFT 1 SECTION III—ADMINISTRATIVE HEARING OFFICER 2 The"Administrative Hearing Officer"shall have the same appointment and qualifications as that 3 designated in San Bernardino Municipal Code Chapter 9.93,Administrative Civil Penalties;and shall conduct public hearings and make recommendations intended to encourage and achieve the compliance 4 of particular alcoholic beverage sale establishments with the provisions of this Ordinance. This section 5 is not intended to restrict the powers and duties otherwise pertaining to other City officers or bodies in the field of monitoring and ensuring the harmony of alcoholic beverage sale activities in the City. The 6 Administrative Hearing Officers shall have the powers and duties assigned to them by the Development Code,-and other San Bernardino Municipal Code ordinances. 7 B SECTION rV-INSPECTION AND RIGHT OF ENTRY 9 The sale of alcoholic beverages is a closely regulated industry. The officials responsible for enforcement of the City Municipal Code or other provisions of the Development Code or their duly 10 authorized representatives may enter on any site or into any structure open to the public for the purpose 11 of investigation provided they shall do so in a reasonable manner whenever they have cause to suspect a violation of any provision of this ordinance or whenever necessary to the investigation of violations to 12 the Conditions of Approval or Deemed Approved performance standards prescribed in these regulations. If an owner,occupant or agent refuses permission to enter, inspect or investigate,premises which are not 13 open to the public,the officials or their representatives may seek an inspection warrant under the la provisions of California Code of Civil Procedure section 1822.50 et. seq. All such inspections shall be conducted in compliance with the Fourth Amendment to the United States Constitution. 15 SECTION V- SEVERABILrrY 16 If any section,subsection, sentence,clause or phrase of this ordinance is for any reason held to be 17 invalid, such decision shall not affect the validity of the remaining portions of this ordinance.The Mayor and Common Council hereby declare that it would have adopted the ordinance and each section, 18 subsection, sentence, clause or phrase thereof,irrespective of the fact that any one or more of the 19 sections subsections, sentences,clauses or phrases may be declared invalid. 20 ARTICLE H—CONDITIONAL USE PERMITS FOR NEW ALCOHOLIC BEVERAGE SALES ACTIVITIES 21 22 SECTION I—PURPOSE 23 The general purposes of these regulations are to protect and promote the public health, safety, comfort, convenience,prosperity and general welfare by requiring consideration and approval of a 24 Conditional Use Permit before a new alcoholic beverage sales activity will be permitted in any land use 25 zoning district of the City and by requiring all new alcoholic beverage sales activities to comply with the operational standards in this ordinance and to achieve the following objectives: 26 (A)Protect surrounding neighborhoods from the harmful effects attributable to the sale of 27 alcoholic beverages and to minimize the adverse impacts of nonconforming and incompatible uses. 28 6 CDocuments and SettinesVobinson shUdv DocumentsWALERM7-28-10 Strikeout DAO PC recommendation.doc&AKAW%R-� ...,nnn,........- -_a DO.-mm ';r 31 49 Anefewd 1i 7/21/10 CITY ATTORNEY DRAFT I (B)Encourage businesses selling alcoholic beverages to operate in a manner that is mutually 2 beneficial to other such businesses and other commercial and civic activities. 3 (C)Provide a mechanism to address problems often associated with the public consumption of 4 alcoholic beverages,such as litter, loitering,graffiti,unruly behavior and escalated noise levels. 5 (D)Ensure that businesses selling alcoholic beverages are not the source of undue public 6 nuisances in the community. 7 (E)Ensure that sites where alcoholic beverages are sold are properly maintained so that negative 8 impacts generated by these activities are not harmful to the surrounding environment in any way. 9 This Article alone does not allow or permit alcoholic beverage sales activities, but only applies to these activities where otherwise allowed or permitted within an involved applicable land use zoning 10 district. This Article does not authorize alcoholic beverage sales activities in any land use district where I I they are not otherwise allowed or permitted by the applicable involved zoning district's regulations. 12 The provisions of this ordinance are intended to compliment the State of California alcohol- related laws. The city does not intend to replace or usurp any powers vested in the California 13 Department of Alcoholic Beverage Control. 14 SECTION II—REQUIREMENT 15 Notwithstanding any other provisions of this Code,no new on-site or off-site alcoholic beverage I6 sales activity may be established unless a Conditional Use Permit is first obtained in accordance with the 17 requirements of this Article. The following uses are exempt from this requirement to obtain a Conditional Use Permit: 18 19 (A) Sit-down restaurants whose predominant function is the service of food and where the on-site sale of alcoholic beverages is incidental or secondary. 20 21 (B) Establishments containing-13,90010,000 square feet or more,including but not limited to 22 supermarkets and drug stores,which do not sell alcoholic beverages as the principal business 23 ( k- 24 2s (C) Establishments, whose applications have has been deemed complete prior to the effective 26 date of this Ordinance by the Community Development Serviees Department.ire 27 zs (A)(D)Temporary uses issued a Temporary License by the California Department of Alcoholic Beverage Control and established in compliance with all City laws and regulations. 7 C:\Documents and Settings\robinson sh\Mv Documents\VALERIE\7-28-10 Strikeout DAO PC recoinmendafion.docSAPLANDdGlFB a " 7/21/10 CITY ATTORNEY DRAFT 1 2 SECTION III-LOCATIONAL RESTRICTIONS 3 FAk— Unless otherwise exempted under subsections B-H,Ica new alcoholic beverage sales activity is not permitted within 500 feet of any of the following locations: a ( W feet(A)- hin cnn .c.an existin.. ..leehelie lse..e fage sale.. ae fiyity 5 (A) 6 (B)*Adfia 500 feet ef any of the felle%ing: 7 1.A public or private state licensed or accredited school a 2.A public park,playgro ry und,eF recreational area, or youth facility, including a nurse 9 school,preschool, or day-care facility, n 3.43:A place of worship or religious institution 12 13 4.34-.A hospital ly 5.6-5 An alcohol or other drug abuse recovery or treatment facility 15 6.7-6.A county social service office. 16 irn Within a e6me Fopef frog dist.:e., of .:.t :, cnn feet A fa e., repeffing dis#:e, where the 17 gel a e Fate e.,eeeds the e:ty Aide g e .el erime Fete by fnere 4im 20 percent 18 (il) A l9eatien,.4e_e the ne,.,Alco elie beverage sales activity wind lead W the,,........:.... ..c 19 mefe 4han fete aleehelie beverage sales aetivities widsin a 1,000 feet Fed-itiq f*gf-H the new aleehelie 20 (F-)- (BIB_Establishments containing 45,000 10.000 square feet or more, including but not 21 limited to supermarkets and drugstores,which do not sell alcoholic beverages as the 22 principal business are exempt from these locational restrictions. 23 24 (C) Sit down-restaurants whose predominant function is the service of food and where the 25 on-site sale of alcoholic beverages is incidental or secondary are exempt from these locational restrictions. An incidental bar or lounge shall be allowed for the convenience of 26 dining patrons. (Establishments which are primarily a bar or lounge or have a bar or lounge area as a principal or independent activity are not included in this exemption.) 27 z s C'\Documents and Settines\robinson sh\Mv DocumentsNALER1E\7-28-10 Svikeout DAO PC recommendation.docSaFLANIT, 6 Sin€€Rnn s.heffiqffielW 7/21/10 CITY ATTORNEY DRAFT I (D)All other establishments for on-site consumption of alcohol may be exempted from the 2 locational restrictions subject to evaluation of site-specific conditions through the Conditional Use Permit review process and considering recommendations from the Police 3 Department. 4 jE) Specialty retail establishments that offer unique product lines or variety of selection not 5 available in the City and therefore warranting a finding of public convenience or necessity are exempt from the locational restrictions. 6 _ (F) An automobile service station convenience store that meets the location criteria of Section 7 19 06 030(2)(T)may be exempted from these locational restrictions, subject to evaluation of 8 site-specific conditions through the Conditional Use Permit review process and considering recommendations from the Police Department. 9 _ (G)A fraternal organization or veterans club may be exempted from the locational restrictions, 10 subject to evaluation of site-specific conditions through the Conditional Use Permit review I I process and considering recommendations from the Police Department. 12 (14)Temporary uses issued a Temporary License by the California Department of Alcoholic Beverage Control and established in compliance with all City laws and regulations are 13 exempt from the locational restrictions. 14 (I) The following location conditions will be considered in the review of Conditional Use Permit 15 applications, and may be grounds for denial based on potential adverse effects to the public interest, health, safety or convenience: 16 17 1 A location within a crime reporting district, or within 500 feet of a crime reporting district,where the general crime rate exceeds the city-wide general crime rate by more than 20 percent. 18 2. 19 20 4--A location where the new alcoholic beverage sales activity would be within 500 feet from an existing alcoholic beverage sales activity,or would lead to the grouping of more than four alcoholic 21 beverage sales activities within a 1,000 foot radius from the new alcoholic beverage sales activity. 22 23 SECTION IV—OPERATIONAL STANDARDS 24 25 All new alcoholic beverage sales activities shall be designed,constructed,and operated to conform to all of the following operational standards: 26 (A)That it does not result in adverse effects to the health,peace or safety of persons residing or 27 working in the surrounding area. 28 9 C\Documents and Setdngs\robinson sh\MV DocumenlsNALERIE7-28-10 Strikeout DAO PC recommendation.doc& I61RS _u .. 7/21/10 CITY ATTORNEY DRAFT I (B)That it does not jeopardize or endanger the public health or safety of persons residing or 2 working in the surrounding area. 3 (C)That it does not result in 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, 4 public drunkenness,drinking in public, harassment of passersby,gambling,prostitution, sale of stolen 5 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 6 violations,curfew violations, lewd conduct,or police detentions and arrests. 7 (D)That it complies with all provisions of local, state or federal laws,regulations or orders, 8 including but not limited to those of the California Department of Alcoholic Beverage Control("ABC"), California Business and Professions Code §§ 24200,24200.6, and 25612.5,as well as any condition 9 imposed on any permits issued pursuant to applicable laws, regulations or orders. This includes compliance with annual City business registration fees and annual use permit fees. 10 I1 (E)That its upkeep and operating characteristics are compatible with,and will not adversely affect the livability or appropriate development of abutting properties and the surrounding 12 neighborhood. 13 (F)That the owners and all employees of the alcohol beverage sales establishment who are t4 involved in the sale of alcoholic beverages complete an approved course in"Responsible Beverage Sales" (RBS)within sixty(60) days of hire for employees hired after the passage of this ordinance or 15 within 6 months of the passage of this ordinance for existing employees. To satisfy this requirement,a certified program must meet the standards of the 16 Alcohol Beverage Control Responsible Beverage Service Advisory Board 17 or other certifying/licensing body designated by the State of California. 18 (G)That all alcohol beverage sales activities pay an annual fee in order to defray the expense to 19 the City for the Outreach and Education Program and Monitoring and Enforcement Activities. 20 (Il)A copy of these operational standards,any applicable ABC or City operating conditions,and any training requirements shall be posted in at least one prominent place within the interior of the 21 establishment where it will be readily visible and legible to the employees and patrons of the 22 establishment. 23 SECTION V—ADMINISTRATION 24 The San Bernardino City Planning Commission shall administer Conditional Use Permits. 25 SECTION VI—PERMIT APPLICATION 26 Any person,association,partnership,corporation or other entity desiring to obtain an alcoholic 27 beverage sales activity Conditional Use Permit shall file an application with the City of San Bernardino 28 Community Development Department to forward to the San Bernardino City Planning Commission on a 10 C`\Documents and Settings\robinson sh\Mv Documents\VALERIE\7-28-10 SVikeout DAO PC recommendation dOC&.94.0� Steff9eeanO2010107 29 4947 21 19&Fikeeut Ordiaaee 7/21/10 CITY ATTORNEY DRAFT I form provided by the City. The application shall be accompanied by a nonrefundable application 2 processing fee in an amount established by a resolution of the Mayor and Common Council. 3 The application for a Conditional Use Permit shall eentnin nclude, but not be limited to the following information: 4 5 (A) The name, address and telephone number of the applicant. If the applicant is a corporation, the applicant shall set forth the name of the corporation exactly as shown in its articles of incorporation. 6 The applicant corporation or partnership shall designate one of its officers or general partners to act as its responsible management officer. 7 8 (B)The name, address, and telephone number of each lender or share holder with a five percent or more financial interest in the proposed business or any other person to whom a share or percentage of 9 the income of the establishment is to be paid. 10 (C)The name, address, and telephone number of the person who shall manage and operate the 1 I establishment for which the permit is requested. 12 (D) The name, address, and telephone number of all existing schools,parks,playgrounds or recreational areas, nonprofit youth facilities,places of worship,hospitals, alcohol or other drug abuse 13 recovery or treatment facilities or county social service offices within 500 feet of the proposed alcoholic 14 beverage sales activity establishment. 15 (E) The name,address,and telephone number of all alcoholic beverage sale activities within 500 feet of the proposed alcoholic beverage sales activity establishment and within a 1000 foot radius from 16 the proposed alcoholic beverage sales activity establishment. 17 (F)The name, address, and telephone number of a person authorized to accept service of legal 18 notices. 19 (G)The proposed business name of the alcoholic beverage sales activity establishment and 20 description of all operating aspects of the proposed business. 21 (H)The type of ABC license the applicant is seeking for the alcoholic beverage sales activity 22 establishment. 23 pareel number for the .,...,p", 24 25 (T) A plot pla ft f«the pre„efty depleting the, laeet:. n of the h..:ld-ing housing the ale„',.h., 26 , A�iag Or 27 _--1 Kjl Any other information reasonably necessary to accomplish the purposes of this ordinance. 28 11 C\Documents and Sett nes\robinson sh\Mv DocumentsWALERIE\7-28-10 Strikeout DAO PC recommendation.docSdRbA1�3�P161$6 stxffRaeeHS\29190 glh 7/21/10 CITY ATTORNEY DRAFT I (lam The Planning Commission may refer the application to other City departments to determine 2 whether the premises where the alcoholic beverage sales activity establishment will be located,complies with the City s building,health,zoning and fire ordinances or other applicable ordinances or laws. City 3 departments may conduct an inspection of the premises to determine compliance with the ordinances and other laws they administer. City departments may prepare reports summarizing their inspections and 4 recommending whether to approve or deny the application based on their inspections. 5 SECTION VII—ACTION ON PERMIT APPLICATION 6 The Planning Commission shall approve issuance of the Conditional Use Permit to allow a new 7 alcoholic beverage sales activity upon making the following findings: a (A)The proposed alcoholic beverage sales activity establishment is located in a zoning district in 9 which the establishment is a permitted use. 10 (B)A finding of"public convenience and necessity" (Business and Professions Code Section I I 23958.4(b)(2)),if the activity will be located in an area that has been determined by the state of California Department of Alcoholic Beverage Control to have an undue concentration of licenses as 12 defined in Business and Professions Code Section 23958.4(a). 13 (C) A finding that the alcoholic beverage sales activity will not aggravate existing problems in 14 the neighborhood created by the sale of alcohol such as loitering,public drunkenness,alcoholic beverage sales to minors,noise and littering. 15 (D) The proposed establishment will not detrimentally affect nearby neighborhoods considering 16 the distance of the alcohol establishment to residential buildings, schools,parks,playgrounds or 17 recreational areas,nonprofit youth facilities,places of worship,hospitals,alcohol or other drug abuse recovery or treatment facilities, county social service offices,or other alcoholic beverages sales activity 18 establishments. 19 (E) The proposed establishment will otherwise be compatible with existing and potential uses 20 within the general area. 21 (F)The proposed establishment is not located in what has been determined to be a high-crime 22 area or where a disproportionate number of police service calls occur. 23 (G) The use of the proposed establishment is consistent with the General Plan. 24 SECTION VIII—CONDITIONS OF APPROVAL 25 Conditions of Approval that shallmay be imposed include but are not limited to the following: 26 (A) Prohibited Products: To discourage nuisance activities,an Off-Sale Alcohol Outlet shallma 27 be prohibited from selling one or more of the following products: 28 (1)Wine or distilled spirits in containers of less than 750 milliliters. 12 C Documents and Settines\robinson sh\Mv DocumentsWALERIE\7 28 10 Strikeout DAO PC re commenda[on docS 61F6 StaffR"pe— -12Hi0\97-8 -W A m"AAnnreve§des __ __ __.ce»: 4 e..,..e..,.aw.r., DA.uffiffiW7 21 7/21/10 CITY ATTORNEY DRAFT I 2 (2)Malt beverage products with alcohol content greater than five and one-half percent by volume. 3 (3) Wine with an alcoholic content greater than 14 percent by volume unless in corked bottles 4 and aged at least two years. 5 (4)Beer or malt liquor sold individually in containers of 40 ounces or less. 6 (5)Containers of beer or malt liquor not in their original factory packages of six-packs or 7 greater. a (6)Distilled spirits in bottles or containers smaller than 375 milliliters. 9 (7) Cooler products,either wine- or malt beverage- based, in less than four-pack quantities. 10 11 .1 bePNeea the establishment eondue4iag the Deemed Approved A cAi, ty and the el...aa:.... Y 12 "d 1 Ti, d 11 must eamply. a all .a,ae ed 1 ., ,1 .e,. .e. e.ae for eanstmetion aftd leratien and must not L L i4ew C he building and ...._L:.,.areas 0.e... Q.e s#eea Vegetatio 13 be required a Y be-hinted along the a .ndwall to improve a the of the sound wall. 14 15 16 0. Y t J needed eded to ..ae a l:aa r 0.e e rA all reel. 0...a, these eptaetes d h 'd lk d are«a to the e..tabl:..t.. erA The opeEaters eft the business also may be Fe. ui fed to Femeve at p 1 r least L times per week all 1, bli h deposited,.....ublie 18 .. . 19 (DB) Pay Telephones: Pay telephones on the site of the establishment may either be (i) 20 pfehibitea,("shall be required to be of the type that only allow outgoing calls and shall be located in a visible and well-lighted location. 21 22 (EC) Program: A"complaint response community relations"program established and maintained by the establishment conducting the Deemed Approved Activity may be required. The 23 program may include the following: 24 (1)Posting at the entry of the establishment providing the telephone number for the area 25 commander of the local law enforcement substation to any requesting individual. 26 (2) Coordinating efforts with the police department to monitor community complaints about the establishment activities. 27 28 13 C\Doc ments and Settings\rob son sh\Mv DocumentsWA-LERIE\7-28-10 Strikeout DAO PC recommendation.doeSAPl.$aRANCW pewffieMS4 21 10 21 10 Sw;keeut Ste�ReeesE,42A19\N7 as 1e�7-a1-1e t 7/21/10 CITY ATTORNEY DRAFT 1 (3)Having a representative of the establishment meet with neighbors or the applicable 2 neighborhood association on a regular basis and at their request attempt to resolve any neighborhood complaints regarding the establishment. 3 (ElQ)Activities: If appropriate the following activities may be prohibited on the premises:pool or a billiard tables football or pinball games, arcade style video or electronic games coin-operated S amusement devices. 6 (GE) Chilled Alcoholic Beverages: An Off-Sale Alcohol Outlet may be prohibited from maintaining refrigerated or otherwise chilled alcoholic beverages on the premises. 7 8 (HF) Hours of Operation: In an Off-Sale Alcohol Outlet,the sale of alcoholic beverages may be restricted to certain hours of each day of the week unless limited further by the State of California 9 Department of Alcoholic Beverage Control. 10 Cups: In Off-Sale Outlets,the sale or distribution to the customer of paper or plastic cups in I I quantities less than their usual and customary packaging may be prohibited. 12 (dH) Signs: The following signs shall be required to be prominently pasted op sted in a readily visible manner on an interior wall or fixture, and not on windows,in English, Spanish and the 13 predominant language of the patrons: la (1)"California State Law prohibits the sale of alcoholic beverages to 15 persons under 21 years of age." 16 (2) "No Loitering or Public Drinking." 17 (3) "It is illegal to possess an open container of alcohol in the vicinity of this establishment." 18 19 (KI) Presentation of Documents: A copy of the Conditions of Approval and the California Department of Alcoholic Beverage Control license shall be required to be kept on the 20 premises and presented to any law-City eEnforcement eOfficer or authorized state or county official upon request. 21 22 (W) Mitigating Alcohol Related Problems: The establishment shall be required to operate in a manner appropriate with mitigating alcohol related problems that negatively impact those individuals 23 living or working in the neighborhood including but not limited to sales to minors,the congregation of individuals,violence on or near the premises, drunkenness,public urination, solicitation,drug-dealing, 24 drug use, loud noise and litter. 25 (MK) Drug Paraphernalia: An Off-Sale Alcohol Outlet shall be prohibited from selling 26 drug/tobacco paraphernalia products as defined in Health and Safety Code sections 11014.5 and 11364.5. "Drug Paraphernalia"means all equipment products and materials of any kind 27 that are used intended for use or designed for use in planting,propagating, cultivating, growing, 28 harvesting,manufacturing,compounding, converting,producing,processing,preparing,testing, analyzing,packaging, repackaging, storing,containing, concealing, injecting, ingesting, inhaling, or 14 CADoc menu and Settinesyobinson sh\My DocumenlsWALERIEV-28-10 Strikeout DAO PC recommendation.doc&.44AND� S�ttn@ +n,e n, 10 c.-e__ut n,ai_.,__.:r ne_..._a 7/21/10 CITY ATTORNEY DRAFT I otherwise introducing into the human body a controlled substance in violation of the California Uniform 2 Controlled Substances Act commencing with California Health and Safety Code section 11000. 3 (DELI Loitering_The establishment's operators or employees shall be required to discourage loiterers and to ask persons loitering longer than fifteen minutes to leave the area and contact local law 4 enforcement officials for enforcement of applicable trespassing and loitering laws if persons requested 5 to leave fail to do so. 6 (GM) Security Cameras: At least two 24-hour time lapse security cameras may be required to be installed and properly maintained on the exterior of the building at locations recommended by the Police 7 Department. All criminal and suspicious activities recorded on this surveillance equipment must be s reported to local law enforcement. To the extent allowed by law,the establishment operators may be required to provide any tapes or other recording media from the security cameras to the Police 9 Department. [Request Police Dept. invutl 10 WN) Security Guards: An establishment may be required to retain a specified number of I I security guards. The number of security guards shall vary based upon the specific facts and circumstances of each establishment site and operation. All security guards shall have all required state 12 and City permits and licenses. 13 (00) Prohibited Vegetation:No eExterior vegetation may-shall not be planted or maintained 14 that could be used as a hiding place for persons on the premises. Exterior vegetation may be planted and maintained in a manner that minimizes its use as a hiding place. 15 (P) Window Obstructions: No more than 25%of windows or clear doors shall bear advertising 16 of any sort and all advertising sip-nape shall be placed and maintained in a manner that ensures that law 17 enforcement personnel have a clear and unobstructed view of the interior of the premises, including the area in which the cash registers are maintained, from the exterior public sidewalk or entrance. 18 SECTION IX—APPEALS FROM A DETERMINATION ON AN APPLICATION FOR 19 PERMIT 20 Any applicant or other person aggrieved by a decision of the Planning Commission on an 21 application for a Conditional Use Permit required by this Article may appeal the decision to the Mayor 22 and Common Council pursuant to Development Code Chapter 19.52. 23 SECTION X—GROUNDS FOR CONDITIONAL USE PERMIT SUSPENSION OR REVOCATION 24 25 An alcoholic beverage sales activity establishment Conditional Use Permit may be suspended by the Planning Commission for up to one year or revoked after a noticed public hearing held pursuant to 26 Development Code Chapter 19.52,for failure to comply with Operational Standards,training requirements or conditions imposed through the Conditional Use Permit. 27 2s 15 C1Documents and Settingskobinson shUdv DocumentsNALERIE7-28-10 Strikeout DAO PC recommendation.docS 6AM�161F6 Ste�Reecx7sl2B}9197-38}B!7?7-19 Faikwyt Opdineaee+e De�emsW21 10 S#AwaufOFdi�ee Fe Domed 21 10 Suilmmit Ominmee Fe Demo 7/21/10 CITY ATTORNEY DRAFT I Notice of intention to suspend or revoke shall be in writing and shall state the grounds therefore. 2 Notice shall be mailed by U.S. First-Class Mail and Certified Mail Return Receipt Requested at least 10 days before the date of the hearing. 3 SECTION XI—INVESTIGATIVE PROCEDURES OF POTENTIAL VIOLATION OF 4 CONDITIONS OF APPROVAL 5 The City shall appoint an Administrative Hearing Officer pursuant to San Bernardino Municipal 6 Code Chapter 9.93,to conduct hearings,make findings and determine whether violations of this Article, including the Operational Standards and Conditions of Approval,as well as whether undue negative 7 impacts or public nuisance activities have occurred,are occurring or are likely to occur in the future. 8 The assigned Administrative Hearing Officer shall exercise all powers relating to the conduct of the administrative hearing pursuant to San Bernardino Municipal Code Chapter 9.93. 9 Upon the City's receipt of a complaint from the public,Police Department, City official or any 10 other interested person that a Conditional Use Permit activity is in violation of the Operational Standards 11 and/or Conditions of Approval set forth in this Article,the following procedure shall be followed: 12 (A) A City Enforcement Officer(any Police Officer or other City Enforcement Officer as listed in San Bernardino Municipal Code Chapter 9.93) shall assess the nature of the complaint and its validity 13 by conducting an on-site observation and inspection of the premises to assess the activity's compliance 14 with Operational Standards and/or Conditions of Approval. 15 (B) If the Enforcement Officer determines that the activity is in violation of the Operational Standards and/or Conditions of Approval,the Enforcement Officer may issue an Administrative Citation 16 or an Administrative Civil Penalties Notice, which then may be subject to a hearing by the 17 Administrative Hearing Officer pursuant to San Bernardino Municipal Code Chapter 9.92 or 9.93 18 (C) The Administrative Hearing Officer shall determine whether the activity is in compliance 19 with the operational standards and/or Conditions of Approval. Based on this determination,the Hearing Officer may continue the Conditional Use permit status for the use in question,may impose 20 Administrative Civil Penalties pursuant to San Bernardino Municipal Code Chapter 9.93 for violations of the Operational Standards and/or Conditions of Approval or may recommend that the Planning 21 Commission revoke the activity's Conditional Use Permit. If the Hearing Officer determines instead to 22 impose further,new conditions on the activity,such conditions shall be based upon the information then before the Hearing Officer. In reaching a determination as to whether a use has violated the Operational 23 Standards or Conditions of Approval, or as to the appropriateness of imposing additional or amended conditions on a use, recommending suspension or revocation of a use, assessing administrative penalties, 24 or the amount of Administrative Civil Penalties to assess,the Hearing Officer may consider: 25 1. The length of time the activity has been out of compliance with the 26 Operational Standards and/or Conditions of Approval. 27 2.The impact of the violation of the Operational Standards and/or 28 Conditions of Approval on the community. 16 C\Documents and Settines\robinson sh\MV Docum nts\VALERIE\7-28-10 Strikeout DAO PC recommendation docgAFLA,% %461F6 g6at€ReetxTSl2aie�.97-.31017 21-19 S#ikeaw Qfdinmee;a and 7/21/10 CITY ATTORNEY DRAFT 1 3.Any information regarding the owner of the activity's efforts to remedy 2 the violation of the operational standards and/or Conditions of Approval. 3 (la_""Efforts to Remedy" shall include,but are not limited to: 4 1.Timely calls to the Police Department that are placed by the owner of the Deemed 5 Approved activity,his or her employees,or agents. 6 2.Requesting that those persons engaging in activities causing violations of the Operational Standards and or Conditions of Approval cease those activities,unless the owner of the 7 activity, or his or her employees or agents feels that their personal safety would be threatened in making 8 that request. 9 3. Making improvements to the activity's property or operations,including but not limited to the installation of lighting sufficient to illuminate the area within the use's property line,the 10 installation of security cameras,the clearing of unebstmeted windows obstructions,the cleaning of t t sidewalks and the abatement-gtiof graffiti abated-within three days. 12 (E) If in the judgment of the Administrative Hearing Officer,the operations of the owner of the activity constitute a nuisance,the owner is unable or unwilling to abate the nuisance and the nuisance is 13 shown to be a threat to the public health and safety of the surrounding neighborhood,the Hearing 14 Officer may recommend that the Planning Commission suspend or revoke the activity's Conditional Use permit. All determinations,decisions, and conditions made or imposed regarding the use of a activity 15 shall run with the land. 16 (F)The decision of the Administrative Hearing Officer shall become final and conclusive and 17 shall not be subject to appeal to the Mayor and Common Council. Once the decision of the Administrative Hearing Officer becomes final,the time in which judicial review of the decision must be 18 sought shall be governed by California Code of Civil Procedure Section 1094.6,or other applicable 19 State Law. 20 SECTION III—APPEAL FROM SUSPENSION OR REVOCATION OF CONDITIONAL USE PERMIT 21 22 Any applicant or other person aggrieved by a decision of the Planning Commission from a suspension or revocation of a Conditional Use Permit may appeal the decision to the Mayor and 23 Common Council. 24 ARTICLE ID—STANDARDS AND PROCEDURES FOR EXISTING DEEMED APPROVED 25 ALCOHOLIC BEVERAGE SALES ACTIVITIES 26 SECTION I—PURPOSE 27 The purposes of these regulations are to protect and promote the public health, safety,comfort, 28 convenience,prosperity and general welfare by requiring that alcoholic beverage sales activities that are 17 C\Documents and Sehines\robinson sh\My DocumentsNALERIE\7-28-10 Strikeout DAO PC recommendation.docSAPtANNNGW S6aa:RW0Ft%Q01.6107 .M.4c, 7/21/10 CITY ATTORNEY DRAFT 1 legal nonconforming activities to comply with the Deemed Approved performance standards in this 2 Chapter and to achieve the following objectives: 3 (A) Protect surrounding neighborhoods from the harmful effects attributable to the sale of alcoholic beverages and to minimize the adverse impacts of nonconforming and incompatible uses. a 5 (B)Encourage businesses selling alcoholic beverages to operate in a manner that is mutually beneficial to other such businesses and other commercial and civic activities. 6 (C)Provide a mechanism to address problems often associated with the public consumption of 7 alcoholic beverages, such as litter, loitering, graffiti, unruly behavior and escalated noise levels. s (D) Ensure that businesses selling alcoholic beverages are not the source of undue public 9 nuisances in the community. 10 (E) Ensure that sites where alcoholic beverages are sold are properly maintained so that negative 11 impacts generated by these activities are not harmful to the surrounding environment in any way. 12 SECTION II—APPLICABILITY 13 The Deemed Approved alcoholic beverage sales regulations shall apply to all alcoholic beverage 14 sales activities for on-site or off-site consumption existing and operating within the City on the effective date of this ordinance. 15 SECTION III—AUTOMATIC DEEMED APPROVED STATUS 16 17 All Alcoholic Beverage Sales Commercial Activities that were Legal Nonconforming Activities, on the effective date of this ordinance, whether or not previously granted a Conditional Use Permit by 18 the City;-shall shall automatically become Deemed Approved Activities as of the effective date of this 19 ordinance and shall no longer be considered Legal Nonconforming Activities. 20 Each deemed approved activity shall retain its Deemed Approved status as long as it complies with the performance standards of this ordinance. 21 22 The occurrence of any of the following shall terminate the Deemed Approved status of the alcoholic beverage sales activity after notice and a hearing in accordance with Section VI below, and 23 require the issuance of a Conditional Use Permit in order to continue the alcoholic beverage sales activity: 24 25 (A)An existing alcoholic beverage sales activity changes its activity so that ABC requires a different type of license. 26 (B) There is a substantial modification to the mode or character of operation. 27 28 (C)As used herein,the phrase"substantial change of mode or character of operation" includes but is not be limited to the following: 18 C Documents and S ti e'\robinson sh\Mv Do currents\VALERIE\7-28-10 Strikeout DAO PC recommendation.do F ew 11 10 ss11 ar aee�a49e e. ^ tom.�x 7/21/10 CITY ATTORNEY DRAFT 1 2 1. The off-site alcoholic beverage sales activity establishment increases the floor or land area or shelf space devoted to the display or sales of any alcoholic beverage. 3 2. The on-site alcoholic beverage sales activity establishment increases the floor or land 4 area or shelf space devoted to the display, sales or service of any alcoholic beverage. 5 3. The off-site or on-site alcoholic beverage sales activity establishment expands the sale 6 or service of any alcoholic beverages and/or increases the number of customer seats primarily devoted to 7 the sale or service of any alcoholic beverages. 8 4. The off-site or on-site alcoholic beverage sales activity establishment extends the hours of operation. 9 5. The alcoholic beverage sales activity establishment proposes to reinstate alcohol sales 10 after the ABC license has been either revoked or suspended for a period greater•than 30 days90 days or II reater by ABC. 12 6. The alcoholic beverage sales activity voluntarily discontinues active operation for 13 more than 90 consecutive days or ceases to be licensed by the ABC. Iq (D)A substantial change in the mode of character of operation shall not include: 15 1. Re-establishment,restoration or repair of an existing alcoholic beverage sales activity on the same premises after the premises have been rendered totally or partially inaccessible by a riot, 16 insurrection,toxic accident or act of God,provided that the re-establishment,restoration or repair does 17 not increase the sales or service of any alcoholic beverage, extend the hours of operation of any establishment or add to the capacity, floor or land area or shelf space devoted to alcoholic beverages of 18 any establishment that sells or serves any alcoholic beverages. 19 2. Temporary closure for not more than ninety days in cases of vacation or illness or for 20 purposes of repair,renovation, or remodeling if that repair, renovation, or remodeling does not change the nature of the premises and does not increase the sales or service of any alcoholic beverage, extend 21 the hours of operation of any establishment, or add to the capacity, floor or land area,or shelf space 22 devoted to alcoholic beverages of any establishment that sells or serves any alcoholic beverages. 23 (E)Discontinuance. Once it is determined by the City that there has been a discontinuance of active operation for 90 consecutive days or a cessation of ABC licensing, it may be resumed only upon 21 the granting of a Conditional Use Permit as provided in Article II. The property owner shall be notified 25 by the City of the termination of the Deemed Approved status and shall be informed of the property owner's right to appeal the City's decision to the Administrative Hearing Officer. 26 27 SECTION IV—DEEMED APPROVED PERFORMANCE STANDARDS 28 The provisions of this section shall be known as the Deemed Approved performance standards. The purpose of these standards is to control dangerous or objectionable environmental effects of 19 C^.Documents and Settings\robinson sh\Mv Documents\VAI ERIE\7-28-10 Strike ut DAO PC e omm dation d SAPL4NR -G Tee... Appfevad A....l..\ll......—.� ..-..A C..... \ .. 7/21/10 CITY ATTORNEY DRAFT 1 alcoholic beverage sales activities. These standards shall apply to all Deemed Approved alcoholic 2 beverage sales activities that hold Deemed Approved status pursuant to this Article. 3 An alcoholic beverage sales activity("Alcohol Outlet") shall retain its Deemed Approved status a only if it conforms to all of the following Deemed Approved performance standards: 5 (A)The Alcohol Outlet shall not cause adverse effects to the health,peace or safety of persons residing or working in the surrounding area. 6 (B)The Alcohol Outlet shall not jeopardize or endanger the public health or safety of persons 7 residing or working in the surrounding area 8 (C)The Alcohol Outlet shall not allow repeated nuisance activities within the premises or in 9 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 10 stolen goods,public urination, theft, assaults,batteries, acts of vandalism, excessive littering,loitering, 11 graffiti, illegal parking,excessive loud noises,especially in the late night or early morning hours,traffic violations,curfew violations, or lewd conduct. 12 (D)The Alcohol Outlet shall comply with all provisions of local, state or federal laws, 13 regulations or orders,including but not limited to those of the ABC, California Business and Professions 14 Code §§ 24200,24200.6,and 25612.5,as well as any condition imposed on any permits issued pursuant to applicable laws,regulations or orders. This includes compliance with annual City business 15 registration fees and annual use permit fees. 16 (E)The Alcohol Outlet's upkeep and operating characteristics shall be compatible with and not 17 adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood. 18 19 (F)All alcohol beverage sales activities shall pay an annual use permit fee in order to defray the expense to the City for the Outreach and Education Program and Monitoring and Enforcement 20 Activities. A copy of these performance standards,any applicable ABC or City operating conditions, and any training requirements shall be posted in at least one prominent place within the interior of the 21 establishment where it will be readily visible and legible to the employees and patrons of the 22 establishment. 23 (G)The owners and all employees of the alcohol beverage sales establishment involved in the sale of alcoholic beverages shall complete an approved course in 'Responsible Beverage Sales"((RBS) 21 within 60 days of hire for employees hired after the passage of this ordinance or within six months of the 25 passage of this ordinance for existing employees. To satisfy this requirement,a certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service 26 ((CCC/RBS)or other certifying/licensing body designated by the State of California. 27 RT—e disoeurage nuisanee aefiN46es, all Oars 1 A t L I 01141ats that held Deemed Appreved Status 28 pugs cant to this Article sh ll be prohibited c. tt. e gre of the f tt a 20 CADocuments and SettinesVobinson shMy Documents\VALERIE\7-28-10 Str keout DAO PC recommendation.do CSiR6ANN11361RE 7/21/10 CITY ATTORNEY DRAFT 1 ,l' Wine ..-distilled spii-zits in eentainers of less 1. 50 '11'1' 2 3 velane. 4 5 bottles and aged at least W,;o years. 6 (4)Beer eF malt liquer sold individually in reat—a-ifiefs of 40 oi—iflApq of less. 7 8 gFeater. 10 11 12 SECTION V—NOTIFICATION TO OWNERS OF ESTABLISHMENTS CONDUCTING 13 DEEMED APPROVED ACTIVITIES 14 The City's Community Development Department shall notify the owner of each Deemed 15 Approved activity,and also, if not the same,any property owner at the address shown on the City's 16 property tax assessment records, of the activity's Deemed Approved status. The notice shall be sent by U.S. First Class Mail and Certified Mail Return Receipt Requested and shall include a copy of the 17 performance standards in this Article with the requirement that they be posted in a conspicuous and unobstructed place visible from the entrance of the establishment for public review.This notice shall 18 also provide that the activity is required to comply with all performance standards, that a review fee is 19 required and that the activity is required to comply with all other aspects of the Deemed Approved regulations. Should the notice be returned,then the notice shall be sent via regular U.S. Mail. Failure of 20 any person to receive notice given pursuant to this Article shall not affect the Deemed Approved status of the activity. 21 22 SECTION VI-DEEMED APPROVED STATUS PROCEDURES 23 The City shall appoint an Administrative Hearing Officer pursuant to San Bernardino Municipal Code Chapter 9.93 to conduct hearings,make findings and determine whether violations of this Article, 24 including the Deemed Approved performance standards, Conditions of Approval,undue negative 25 impacts or public nuisance activity,have occurred, are occurring,or are likely to occur in the future. The assigned Administrative Hearing Officer shall exercise all powers relating to the conduct of the 26 administrative hearing pursuant to San Bernardino Municipal Code Chapter 9.93. 27 Upon the City's receipt of a complaint from the public,Police Department, City official or any 28 other interested person that a Deemed Approved use is in violation of the performance standards set forth in this Article,the following procedure shall be followed: 21 CA\Documents and Settines\robinson sh\Mv Doc entsWALERIE\7-28-10 Strikeout DAO PC recommendaCo docSAKANWWQW mpg, 7/21/10 CITY ATTORNEY DRAFT 1 2 (A)A City Enforcement Officer shall assess the nature of the complaint and its validity by conducting an on-site observation and inspection of the premises to assess the activity's compliance with 3 Performance standards. 4 (B)If the Enforcement Officer detennmes that the Deemed Approved activity is in violation of 5 the performance standards,the Enforcement Officer may issue an Administrative Citation or an Administrative Civil Penalties Notice, which then may be subject to a hearing by the Administrative 6 Hearing Officer pursuant to San Bernardino Municipal Code Chapters 9.92 or 9.93. 7 (C)The Administrative Hearing Officer shall determine whether the Deemed Approved activity 8 is in compliance with the performance standards. Based on this determination,the Hearing Officer may continue the Deemed Approved status for the use in question,may impose Administrative Civil 9 Penalties for violations of the performance standards pursuant to San Bernardino Municipal Code Chapter 9.93,may impose such reasonable conditions:including but not limited to the conditions listed 10 in Article II. Section VIII above as are in the judgment of the Hearing Officer necessary to ensure 11 compliance with the performance standards and may suspend or revoke the Deemed Approved activity's's Deemed Approved status. If th e Hearing Officer de termines instead to impose further, new conditions 12 on the Deemed Approved activity, such conditions shall be based upon the information then before the Hearing Officer. In reaching a determination as to whether a use has violated the performance standards, 13 or as to the appropriateness of imposing additional or amended conditions on a use,suspending or 14 revoking a use,assessing Administrative Civil Penalties, or the amount of Administrative Civil Penalties to assess,the Hearing Officer may consider: 15 16 1. The length of time the Deemed Approved activity has been out of compliance with the performance standards. 17 2. The impact of the violation of the performance standard(s) on the community. 18 19 3. Any information regarding the owner of the Deemed Approved activity's efforts to remedy the violation of the performance standard(s). 20 21 (D)"Efforts to Remedy"shall include,but are not limited to: 22 1. Timely calls to the Police Department that are placed by the owner of the Deemed Approved activity,his or her employees,or agents. 23 2. Requesting that those persons engaging in activities causing violations of the 24 performance standard(s)cease those activities, unless the owner of the Deemed Approved activity,or his 25 or her employees or agents feels that their personal safety would be threatened in making that request. 26 3.Malting improvements to the Deemed Approved activity's property or operations, including but not limited to the installation of lighting sufficient to illuminate the area within the use's 27 property line,the installation of security cameras, clear unobstructed windows, clean sidewalks and 28 graffiti abated within three days. 22 C:\Documents and Settines\robinson sh\Mv DocumentsWALERM7-28-10 Str keout DAO PC recommendation docSAPLA?� 7/21/10 CITY ATTORNEY DRAFT i (E)If in the judgment of the Administrative Hearing Officer, the operations of the owner of the 2 deemed Approved activity constitute a nuisance,the owner is unable to abate the nuisance and the nuisance is shown to be a threat to the public health and safety of the surrounding neighborhood,the 3 Hearing Officer may suspend or revoke the activity's Deemed Approved status.Any continued operation of the business shall require a Conditional Use Permit approved by the Planning Commission. 4 All determinations,decisions,and conditions made or imposed regarding the use of a Deemed Approved 5 activity shall run with the land. 6 (F)The decision of the Administrative Hearing Officer shall become final and conclusive and shall not be subject to appeal to the Mayor and Common Council. Once the decision of the 7 Administrative Hearing Officer becomes final as provided in this Chapter,the time in which judicial 8 review of the decision must be sought shall be governed by California Code of Civil Procedure Section 1094.6, or other applicable State Law. 9 10 ARTICLE IV-ALCOHOLIC BEVERAGE SALES ACTIVITY FEES AND PENALTIES I I SECTION I—ANNUAL PERMIT FEES 12 (A.)The Mayor and Common Council shall establish by resolution an annual use permit fee that shall be imposed on each alcoholic beverage establishment issued a use permit pursuant to the 13 provisions of this ordinance, including any new or modified establishment or deemed approved 14 establishment issued a permit pursuant to this ordinance. The annual use permit fee shall be assessed for each alcoholic beverage establishment on a sliding scale based on: 15 16 (1)The hours of operation that alcohol is sold at the establishment. 17 (2)The volume of alcohol sales at the establishment. 18 (3)The number of police calls for service at the establishment. 19 (4)The estimated annual costs of the police services necessary to monitor and enforce the 20 operational standards and other use permit conditions and requirements for all establishments within that license category. 21 22 (5)The estimated staff costs to bill and collect the annual permit fee. 23 (B) Billing and Payment: All annual permit fees imposed on an alcoholic beverage establishment operating under a use permit issued in the manner provided for by this ordinance 24 including Deemed Approved establishments shall be billed by the City Clerk's Office on or before the 25 1 st day of January of each year. The fee is due and payable immediately upon receipt, and will be delinquent if not paid within 30 days of the bill's mailing. 26 (C) Establishment of Alcohol Permit Fee Account: 27 (1)The City shall establish an "Alcohol Permit Fee Account" for the collection of the fees 28 described in this ordinance. 23 CADocuments and Settines\robinson shNy DocumentsWALERIM7-28-10 Strikeout DAO PC re ommendation docS- I61FG 7/21/10 CITY ATTORNEY DRAFT 1 (2)Funds from the "Alcohol Permit Fee Account' shall be used only to recover the cost of the 2 services including education,inspections,enforcement operations and administrative hearings,related to the monitoring and enforcement of the performance standards,conditions of operation and regulations 3 established for licensed alcohol establishments in this ordinance. 4 (D) Report of expenditure of fees to be collected: 5 (1)Not later than the last meeting of October in each calendar year,the Administrative Hearing 6 Officer shall submit to the Mayor and Common Council a report on the expenditures of the total of annual alcohol permit fees collected. 7 8 (2) The report shall set forth such matters as: 9 a. The prioritization of problems regarding enforcement of the performance standards, conditions and regulations as set forth in this ordinance related to the operation of to licensed alcohol establishments in the City. 11 b. Methods of mitigating such problems,through prevention,education and enforcement 12 of the performance standards,conditions andregulations. 13 c. The specific allocation of the fees to be collected to activities described in the report. 14 SECTION II—PENALTIES 15 (A) Any person who violates,causes or permits another person to violate any provision of this 16 ordinance is guilty of either an infraction or misdemeanor. Any person convicted of either an infraction 17 or misdemeanor under the provision of this ordinance shall be punished by a fine, imprisonment or both according to Chapter 1.12 of the San Bernardino Municipal Code. 18 19 (B) Separate Offenses for Each Day: Any violator shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of these regulations is 20 committed,continued,permitted, or caused by such violator and shall be punishable accordingly. 21 (C) Any Violation a Public Nuisance: In addition to the penalties provided in this section, any 22 use or condition caused or permitted to exist in violation of any of the provisions of these regulations shall be and is declared to be a public nuisance and may be abated as such by the City. 23 (D) In as Additional Remedy:Any violation of any provision of these regulations shall 24 be and is declared to be contrary to the public interest and shall at the discretion of the City, create a 25 cause of action for injunctive relief. 26 (E) Administrative Civil Penalties: In addition to any other penalties provided in this section, $1,000.00 in Administrative Civil Penalties shall be imposed for each and every offense and for each 27 and every day during any portion of which any violation of any provision of these regulations is 28 committed, continued,permitted, or caused by such violator: 24 C9Documents and Settings\rohinson sh\Mv Documents\VALERIE\7-28-10 Strikeout DAO PC recommendation docS 7GW a ...ar._...__..aa�.. 7/21/10 CITY ATTORNEY DRAFT 1 (F) The City shall bill all persons liable for these Administrative Civil Penalties by mail showing 2 the itemized cost of such chargeable service and requesting payment. Payment of the penalties shall be due within thirty 30 days of the date of the bill is deposited in the Mail. If full payment is not received 3 within the required time for payment the bill will be delinquent and all persons liable for the penalties shall be charged interest at the maximum legal rate from the date the payment period expires and a 4 further civil penalty in the amount of$100.00 per day. The delinquent costs may be placed as a lien 5 against the property or collected by the City in any manner authorized bylaw and are recoverable in a civil action filed by the City in a court of competent jurisdiction. 6 (G) Liability for Expenses: In addition to the punishment provided by law a violator is liable for 7 such costs expenses and disbursements paid or incurred by the City or any of its contractors 8 in correction abatement and prosecution of the violation. Re-inspection fees to ascertain compliance with previously noticed or cited violations shall be charged against the owner of 9 the establishment conducting the Deemed Approved Activity or owner of the property where the establishment is located. The Enforcement Officer shall give the owner or other 10 responsible parry of such affected premises a written notice showing the itemized cost of 11 such chargeable service and requesting payment thereof. Should the bill not be paid in the required time,the charges shall be placed as a lien against the property. 12 SECTION 2. This Ordinance is based upon the recitals and findings set forth above,and the 13 accompanying Staff Report and its attachments to this Ordinance,and is adopted pursuant to the 14 authority granted to the City of San Bernardino in Article 11, Section 7 of the California Constitution, and Sections34 40(z)7 of the Charter of the City of San Bernardino. 15 SECTION 3. Pufst*mA to Seetion 31 And- I2-t4 a ft heG hall e_of the City ef San Be....aKli...,, dais 16 17 SECTION 34. Compliance with the California Environmental Quality Act_: The Mayor and Common 1s Council finds that this Ordinance is not subject to the California Environmental Quality Act(CEQA) 19 pursuant to Sections 15061(b)(3)(the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment)and 15060(c)(3)(the activity is not a project as defined in 20 Section 15378)of the CEQA Guidelines,California Code of Regulations,Title 14, Chapter 3,because it has no potential for resulting in physical change to the environment, directly or indirectly. 21 22 SECTION 45. Severability If any section,subsection, subdivision,sentence,or clause or phrase in this Ordinance or any part thereof is for any reason held to be unconstitutional, invalid or ineffective by 23 any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof The Mayor and Common Council hereby 24 declares that it would have adopted each section irrespective of the fact that any one or more 25 subsections, subdivisions, sentences, clauses,or phrases be declared unconstitutional,invalid, or ineffective. 26 27 28 25 CADocumenu and Settinesyobinson sh\My DocumentsNALERM7-28-10 Strikeout DAO PC recommendation.doc&APIA 6 Smgftorls1 l00 " fl 7/21/10 CITY ATTORNEY DRAFT 1 2 AN U IG"RDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SAN BERNARDINO MUNICIPAL CODE SECTION 19.06.030(2)(B)(DEVELOPMENT CODE) 3 REQUIRING A CONDITIONAL USE PERMIT FOR NEW ALCOHOLIC BEVERAGE SALES ACTIVITIES AND ESTABLISHING AUTOMATIC DEEMED APPROVED STATUS FOR LEGAL 4 NONCONFORMING ACTIVITIES, s EFFECT INWEDIATELY. 6 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and Council of the City of San Bernardino at a meeting thereof,held on the day of 7 ,2010,by the following vote,to wit: 8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 9 MARQUEZ 10 11 DESJARDINS 12 BRINKER 13 SHORETT 14 KELLEY 1s JOHNSON 16 17 MC CAMMACK 18 19 Rachel Clark,City Clerk 20 The foregoing Ordinance is hereby approved this day of 2010. 21 22 23 PATRICK J. MORRIS,Mayor City of San Bernardino 24 25 Approved as to form: 26 JAMES F. PENMAN City Attorney 27 28 26 C:\DocumentsandSettinu\robinson sh\Mv Documents\VALERIE\7-28-10 Strikeout DAO PC recommendation dOC& 16\R6 Cn.f4'D .�..NDI!\\/Y190 1!1\7 21 49 r'W'....,ll-A:....m,m 14,e ,d 4nmwd A....WVl..v-mwA..and EXHIBTT 3 James F. Mosher Carol Cannon Ryan Treffers September 2009 Alcohol Policy Consultations 6062 Graham Hill Road, Suite B Felton, CA, 95018 www.alcoholpolicyconsultations.com Report prepared for Ventura County Behavioral Health Department Alcohol & Drug Programs Prevention Services Acknowledgements The authors wish to acknowledge the contributions of the following experts in the alcohol policy field for their review and contributions to this report: Ed Kikumoto Policy Director and Community Organizer The Alcohol Policy Network Berkeley, CA Sharon O'Hara Center for Community Action and Training Novato, CA Michael Sparks Petaluma,CA Cliff Waer Senior Alcohol Compliance Officer Oxnard Police Department Oxnard, CA Friedner D.Wittman,Ph.D,M.Arch Institute for the Study of Social Change University of California at Berkeley Berkeley,CA Their contributions were invaluable.However,opinions expressed in the report and any errors,omissions, or misguided analyses are entirely the responsibility of the authors. Reducing Community Alcohol Problems Associated with Alcohol Sales: The Case of Deemed Approved Ordinances in California I. INTRODUCTION Alcohol retail sales establishments may pose serious health and safety risks for neighborhoods and communities. Research has shown that the number,density,location,and operational practices of alcohol outlets affect the level of community violence,drinking-driving incidents,injuries,underage drinking,public nuisance activities, among other social problems.'Having large numbers of bars and liquor stores concentrated in a small geographic area is likely to create serious neighborhood disruption,particularly if the outlets promote heavy drinking and are located near sensitive uses such as schools,parks,and private residences. The link between alcohol retail sales establishments and community health and safety problems has prompted governments to regulate their number,location,and practices. Most States establish minimum guidelines through a licensing system and permit local governments to impose additional restrictions in order to tailor the alcohol availability structure to meet local circumstances,needs,and problems.Typically,local controls are exercised through land use and zoning and/or planning and public safety ordinances. Some States delegate licensing authority to local jurisdictions.However,some States exercise exclusive or near exclusive regulatory authority over alcohol retail sales,prohibiting(or"preempting") local authority regarding this particular type of land user California is one such State. The California Constitution declares that "the State of California ... shall have the exclusive right and power to license and regulate the... sale... of alcoholic beverages within the State"to the exclusion of cities and counties.'The Stare legislature has carved an exception to this general rule,by prohibiting alcohol retail licensing from being issued if the issuance would violate a valid local zoning ordinance.The relevant provision states: "No retail license shall be issued for any premises which are located in any territory where the exercise of the rights and privileges conferred by the license is contrary to a valid zoning ordinance of any county or city. Premises which had been used in the exercise of those rights and privileges at a time prior to the effective date of the zoning ordinance may continue operation[under specified conditions]."Al California courts have upheld this delegation of authority and have interpreted it broadly in recognition of the important traditional role local governments play in regulating land use and protecting public safety.There is a fundamental conceptual difference between land use regulation and alcohol regulation: "The essence of zoning lies in metropolitan and regional planning;it is the use and treatment of public and private land and its appurtenances in the interest of the community as a whole.The factors and reasons that determine the imposition of metropolitan zoning are entirely different from those which control the regulation of the [production,distribution,sale and]consumption of liquor."' This conceptual distinction may be difficult to apply in practice since many regulations have aspects of both alcohol and land use regulation. Beginning in the early 1980s,many California cities became concerned about the public health and safety issues associated with the overconcentration of alcohol outlets,particularly in urban settings.6 California law provides only minimal controls on the number of alcohol licenses that can be issued at the county level and no restrictions at the municipal level.Local jurisdictions responded by exercising their land use powers through the enactment of Conditional Use Permit(CUP)ordinances specific to alcohol outlets.'Today most local jurisdictions have some form of CUP ordinance. CUP ordinances,however,are an imperfect tool.Retail alcohol establishments in existence before their enactment in a particular city or county are exempt(or"grandfathered" or treated as "non-conforming uses")and must be allowed to continue operation without restrictions on the alcohol sales practices.The large majority of a city's alcohol outlets fit this category,and the existence of a CUP ordinance encourages existing businesses to maintain their grandfathered status,which can be transferred to new owners. 4 Reducing Community Alcohol Problems Associated with Alcohol Sales: the Caw of Uvenmd App ,,"I 0"hi"I",,, in (.I lit no) a The inability to regulate grandfathered retail establishments prompted the City of Oakland to enact the first "deemed approved" ordinance(DAO)in 1993.'The ordinance exercises authority over these establishments by issuing"deemed approved" permits and establishing "public nuisance standards" that pre-existing retailers must abide by in order to maintain their permit.The standards are monitored by the city through an enforcement and education program which is paid for by a fee on the deemed approved outlets.The standards do not directly regulate the sale of alcohol, but rather address land use and public safety issues associated with alcohol sales, such as loitering,increased police calls,noise,graffiti, and drug sales. Oakland alcohol retailers challenged the ordinance in court on two grounds:(1)The ordinance constituted regulation of the sale of alcohol and was therefore preempted by the State Constitution;and(2)The fee was in fact a tax,also prohibited under State law.The California Court of Appeal rejected these claims,and the California Supreme Court allowed it to stand without further review?The court concluded that the ordinance did not directly regulate the sale of alcohol so did not violate the State Constitution and that the city was exercising its authority through land use measures.It also held that the fee was permissible because it was assessed based on the city's costs associated with retail establishments and all revenues from the fee are used to administer and enforce the ordinance and promote retailer education.Taxes and fees are distinguished based on these two factors. The Oakland DAO became a model for many other cities and counties,with 19 additional cities enacting some form of a DAO ordinance in the last 15 years.In 2008,the Ventura County Behavioral Health Department commissioned a study to develop a"best practices"guide for drafting COP and deemed approved ordinances.10 The recommendations were developed based on key informant interviews and a review of relevant research. Yet,despite this increased interest and attention to this form of local control,there has been surprisingly little analysis across jurisdictions or at the statewide level regarding the structure of existing ordinances,enforcement strategies,and impact on community alcohol problems. This study represents a first step in filling this gap in the research literature.It is a descriptive,comparative analysis of the legal provisions found in 12 DAOs from across California,comparing them to the provisions recommended in the best practices guide developed in 2008.The analysis is limited because the legal provisions themselves will have little or no impact unless they are effectively administered and enforced,topics beyond the scope of this analysis.Enforcement practices are dependent on numerous factors,including the structure and breadth of the ordinance.Our analysis therefore focuses particularly on those provisions that may enhance or hinder effective enforcement practices. 11. METHODS We conducted a content analysis to identify key provisions,based on the research literature on the impact of alcohol retail establishments on community problems,with particular attention to provisions that would affect enforcement practices.We developed variable definitions based on this review of key provisions. We searched the secondary literature to identify DAOs in California and located 19 such laws."We reviewed these laws and selected 12 for further analysis based on the following criteria.To be included,ordinances needed to:0)Target alcohol outlets that were in existence prior to the passage of a CUP ordinance and therefore exempt from the COP provisions(referred to here as "pre-existing" or "grandfathered" retail establishments); and(2)Authorize(at least implicitly) revocation of a pre-existing retail establishment's deemed approved status or permit for violations of the deemed approved standards.Typically,a revocation results in the outlet needing to apply for a CUP in order to continue operations. Our selection was further limited based on the breadth to which the ordinances addressed the key variables. Our focus is on the provisions that affect the grandfathered alcohol outlets.We ignored provisions in the ordinances that affected new outlets subject to CUP provisions." The six categories of variables are defined as follows: Reducing Community Alcohol Problems Associated with Alcohol Sales: 5 Types of Alcohol Outlets A DAO must define which types of retail alcohol establishments the ordinance applies to. Offsale retail licenses:Deemed approved requirements apply to establishments selling alcohol for off-sale consumption.No jurisdiction distinguishes between licenses that are restricted to beer and wine. On-sale retail licenses:Bu Nightclub:Deemed approved requirements apply to establishments selling alcohol for on-sale consumption,including bus,nightclubs,and restaurants.Ordinances that exempt some types of restaurants are highlighted in foomotes to Table 1. Performance Standards These are the standards to which all deemed approved establishments will be held. Nuisance listing:Extensive/Minimal:Deemed approved performance standards require that licensed establishments take action to prevent various nuisance activities associated with their businesses. Specific nuisance activities may include: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.The ordinances in our analysis were rated either comprehensive(listing all or most of those above) or minimal (providing only a general description of nuisance activities).As noted in the finding section,no ordinance fell between these two extremes. Close proximity:Ordinance specifies that the extent of the nuisances to be prevented includes those occurring near to or in close proximity of(as well as within)the establishment. Federal/state/local laws:Performance standards specify that the establishment comply with all federal,state,and local laws. Compatibility:Performance standards specify that the establishment's upkeep and operating characteristics remain compatible with and will not adversely affect the livability or development of abutting properties and surrounding neighborhoods. Enforcement and Administration DAOs may provide standards and guidelines for their enforcement and administration. Community engagement: Ordinance mandates a role for community and industry groups in enforcing or administering the ordinance or provides a formal mechanism for providing input into the process. Dedicated enforcement officer:Ordinance mandates a dedicated officer for the enforcement of deemed approved standards.Ordinance may specify that funding for this position come from annual fees paid by deemed approved establishments." Dedicated hearing officer:Ordinance mandates a dedicated hearing officer for the adjudication of complaints made against deemed approved establishments.Ordinance may specify that funding for this position come from annual fees paid by deemed approved establishments. Appeal:Specifies the municipal body to which an establishment might appeal judgments and penalties: • Planningtzoning:Appeals go to the planning or zoning commission. • City Council:Appeals go to the city council or board of supervisors. • Other:See Notes section for details. 6 Reducing Community Alcohol Problems Associated with Alcohol Sales: the(,t.c 0 0'din.mcv. in (ld ifan11a Type of Ordinance Describes where the DAO is found in the municipal or county code. Land Use:Found in sections pertaining to land use(Zoning,Planning). Nuisance/Police Powers:Found in sections pertaining to nuisance activities or other responsibilities assigned to local law enforcement agencies(Nuisance,Public Safety,Public Peace,Morals). Penalties Describes the types of penalties imposed on violators of deemed approved standards. Remedy opportunity:Licensee is informed of violations and given the opportunity to remedy before other sanctions are imposed. Civil:Civil penalties (such as citations and fines)may be imposed for violations. Criminal:Criminal penalties may be imposed for violations. Costs:Violators required to pay the city for the costs of enforcement and administration,such as the cost of repeated police or other municipal responses to complaints or re-inspection of establishment following a notification to remedy. Revocation,when permitted:Describes the requirements for revoking an establishment's deemed approved status and/or ordering that the licensee cease and desist conducting business." Fee Schedule's Describes the criteria for fees paid to the city or county by deemed approved licensees. Some cities use a combination of criteria (such as risk,hours,and volume)to calculate fees.Note fees may be imposed on a one-time basis. Risk:Fees calculated by degree of risk associated with establishment.Risk may be dependent on the type of business(e.g.,bars versus restaurants),past history of complaints,or calls for police service associated with the establishment. Hours:Fees calculated by how late the establishment is open. Volume:Fees calculated by volume of alcohol sales. Re-inspection:Fee charged for re-inspection of an establishment after order to remedy. Minimum:Minimum fee paid to municipality by deemed approved establishments. Maximum: Maximum fee paid to municipality by deemed approved establishments. DEEMED APPROVED ORDINANCES: CALIFORNIA CITIES AND COUNTIES (See Table t on page 8.) III. FINDINGS Types of Alcohol Outlets Recommended practice:Include all alcohol outlets in the jurisdiction.16 The recommended practice is based on the potential risks posed by commercial alcohol service generally. Outlet types deemed to be low risk can be charged lower fees while still being subject to the ordinance's provisions. Reducing Community Alcohol Problems Associated with Alcohol Sales: 7 1 he Case of Deemed App, ned Ordinance,in California wnwlxeyy m < O O N O z z z w o o z z nwlwW z � � uollaadsul-aa X k X X d LL w awnloA X X k X 'm s1nOH X X X aawas lol slle'J/odfl lalwo X X k m u V y rt —9 u E 0 m m 3m i0mcE .°. �o $ °Ym oc o > '�' ° c CE O N y 0 O u _ 5qN o E « p°pOCam $ .5 a r` o v °- c O , OA3'i " 3.CCU = t ut ,C� '> vEo 'L'vo ..�r�. L• V o � .CC vv o � poEu a}£ A v•.. o '> m U o= 3 0 0 "u z a ..E 6D sIs03 X X j� X X X X :° X lewwPO X X X ;,° k X IIA10 X X X X c i fUunuoddo RpawaN X X X X X 0 siamod aapod/eaueslnN X k X X X c o m ° c G asn PUe7 X X X X X X X X (salou aas)laglO X X X X X X X n. 1!auno3 SIIO a ¢ uolsslwwoO ° BuluoZ/fiuluueld X X X k 0 ,aaylp 6uueaH Pawolpoo X X X k ° E y Jaa�O $ 'E'c luawawolu3 polealpaO X X a c CC luawafieBu3 dllunwwoO X AlllgpedwoO X X X X X X X sme7 Wool/Owls/IelaPoi X X X X X X k X X X f4itumold asolO k X X X X X X X X X X C N E lewluiW X y M CL y i anlsualx3 k X X X X X X X X k X ° slapno IleloN ales-u0 X C F� slapno Relay ales-s0 X X X X X X k X X X X X m ° W v tY0 k u t L Y C G C C h G V U QU O O d C Cd Vi v. hJ NU fnS � j { With a few exceptions noted below,the localities generally apply their deemed approved ordinances to all alcoholic beverage retailers.Ordinances apply city-or county-wide and are not restricted to certain geographical zones. San Francisco differs the most significantly from the other localities in that its ordinance applies only to off-sale retailers.With the exception of San Leandro(where the ordinance is unclear),San Francisco is the only locality that does not have a deemed approved ordinance that covers bars and nightclubs.Two cities exempt at least some restaurants. Oakland exempts "full-service" restaurants,which are defined as having facilities to prepare and serve meals on the premises.To qualify for the exemption,the establishment must have at least 60 percent of its revenue derive from food sales.Santa Rosa only includes "restaurants with bars" and exempts restaurants "which serve alcoholic beverages as part of a meal." Performance Standards Recommended practice:Include a comprehensive list of nuisance activities;include nuisance activities within and in the vicinity of the retail establishment;include provision related to compatibility with surrounding neighborhoods. '1 he recommended practice reflects the importance of being both specific and inclusive when drafting ordinances. Including the fist of nuisance activities in the DAO itself is recommended to clarify that local planningtzoning officials have primary enforcement and administration responsibility (who need not defer to city attorney or county counsel offices). The jurisdictions largely hold outlets to similar performance standards.However,there are some notable exceptions.All jurisdictions except Ventura include an extensive list of specific nuisance activities that are prohibited.The Ventura ordinance provides a general prohibition of nuisance activities.San Francisco limits its ordinance's application to activities within the establishment's property line. Other ordinances include nuisance activities in "close proximity of" or "near" the retail establishment.Richmond is the only locality that does not require that deemed approved outlets meet all Federal/Statellocal laws. Five jurisdictions (Oxnard,Richmond,San Francisco,Santa Cruz,and Ventura)do not include a requirement for outlets to be compatible with other land uses in their neighborhoods.Such a provision gives additional authority to consider the adverse impacts of the retail establishment on the community more generally.San Francisco is the only jurisdiction that does not impose either a proximity or compatibility standard. Enforcement and Administration Recommended practice:Specify a team that has specific responsibility to monitor, administer,and enforce the deemed approved ordinance. Decisions regarding who will enforce and administer the ordinance,the methods to be used,the role of community actors,and the priority to be placed are delegated to city/county departments and staff. City Councils and Board of Supervisors can enhance the likelihood of effective enforcement and administration by providing clear standards and guidelines to staff. Establishing mechanisms for engaging community and business groups is an important aspect of effective administration. Some ordinances identify specific agencies or individuals with primary responsibility for monitoring and enforcing their deemed approved ordinances.The ordinances in Alameda County and Vallejo specify dedicated enforcement and hearing officers;Santa Rosa and Oakland specify dedicated hearing officers only.Vallejo has the most detailed designated enforcement/implementation provisions.Its ordinance creates a three-member complaint response team,including representatives from development services department,police department, and a citizens'community coalition.It also establishes an alcohol outlet advisory board that must include at least two business owners.The board meets with the dedicated enforcement officer regularly to review complaints and to make recommendations on how to reduce/eluninate problems. Reducing Community Alcohol Problems Associated with Alcohol Sales: y l " Case of 1),, "'d approved Ordinanev, i,, California Note that many other citiestcounties may meet the best practice standard through administrative decisions and without specific provisions in the ordinance (a topic beyond the scope of this analysis). All jurisdictions provide specific procedures for the retailer to appeal decisions to impose sanctions.The size of the community may affect the decision regarding what body will hear the appeal,with larger jurisdictions having more pre-existing options.In general,having an initial review occur within the administrative structure of the city or county government(e.g.,a planning board)will reduce costs to the city and reduce the likelihood of political pressure being placed on the appeals process. Type of Ordinance Recommended practice:Not specified. Deemed approved ordinances can be either land-use or public safety-based enactments.The jurisdictions are about split between these two options.The decision regarding the location of the DAO in the city or county's municipal code will rest on local policy and political considerations and the structure and practice of the jurisdiction's administrative and law enforcement functions.Choosing between these options should reflect an assessment of which agencies and staff will best insure effective administration and enforcement. Penalties Recommended practice:Licensee is given notice of violation by enforcement team and provided opportunity to abate prior to hearing. Civil penalties should be given priority over criminal penalties. Penalties should become increasingly severe for either(1)failure to abate despite warnings;or (2) multiple violations,with revocation authorized.Associated costs should be included in civil penalty. The recommended practice reflects the importance of imposing penalties that are sufficiently severe to serve as a deterrent.Civil penalties are more effective than criminal penalties because they can be imposed more swiftly and are more likely to be enforced,two critical components of deterrence. All ordinances provide some penalty for violations except Santa Cruz,which does not specify penalties in the DAO provisions.Half of the localities provide violators the opportunity to remedy a nuisance prior to imposing other sanctions (which can also be permitted administratively,without a specific provision in the DAO).All jurisdictions include civil penalties and five ordinances impose both types of sanctions.Civil penalties take the form of monetary fines and adjudicated by administrative personnel;criminal penalties include misdemeanor convictions that may also carry jail sentences and are adjudicated through the criminal justice system. Eight localities permit recovery of costs associated with prosecution,appeals,compliance,and abatement of nuisances.Such fees both penalize a violator and provide reimbursement for the city or county's enforcement and administrative costs. Seven jurisdictions allow for revocation of an outlet's deemed approved permit after the first hearing where a violation is established.Three do not permit revocation until after a second hearing at which a finding is made that the offending outlet failed to meet requirements or conditions established following a finding of a first violation.Two ordinances—in Ventura and Petaluma—do not specify when revocation can occur.Oxnard's ordinance contains two provisions.The first requires the city manager to seek a court order before revocation of permit can occur,and the second states that "any other action available to the city" can be taken,which could include revocation of the deemed approved permit and a requirement that the licensee seek a special use permit (which in turn could be denied).It is therefore coded to permit revocation after the first hearing where a violation is established. Fee Schedule Recommended practice: Fee should be imposed to defray cost of monitoring and enforcement based on risk factors (amount of fee not specified). l p Reducing Community Alcohol Problems Associated with Alcohol Sales: llm t ,in, „j I)uumcd .Appnnad Ortl1n.0 is.in (aIiIorni 1 Fees represent a critical aspect of DAO ordinances because they provide the resources for effective administration and enforcement and for promoting retailer education. Basing the fee structure on risk factors and past history insures an equitable distribution of costs—licensees that create increased risks of health and safety problems pay more reflecting the higher costs of monitoring their businesses. The jurisdictions are split into three groups with regards to charging fees for monitoring,education and enforcement. Rohnert Park,Santa Cruz,Santa Rosa,and Ventura base their fees on a set of risk factors(type of outlet,police calls for service,hours,and volume of sales),with higher risk establishments paying higher fees. Santa Rosa's fee is based solely on the volume of sales.Alameda County,Oakland,Oxnard,and San Francisco charge a Bat rate fee to all deemed approved outlets.Vallejo charges a one-time Bat fee that is imposed at the time an outlet receives its deemed approved permit.Petaluma,Richmond and San Leandro do not charge any fees.The fee amount varies widely between the IocaBties,from zero to $5,000 annually.The use of a fee schedule or a Bat rate does not predict the amount of the fee. Alameda County, Oakland,San Leandro, and Santa Rosa impose re-inspection fees.These are in addition to the cost recovery provisions reported in the Penalties section. IV. DEEMED APPROVED ORDINANCES IN VENTURA COUNTY Two jurisdictions in Ventura County—the cities of Oxnard and Ventura—have DAOs,which share some similarities.Both cities require that all types of alcohol outlets(off-sale,bustnightclubs,and restaurants) follow deemed approved performance guidelines.They also both include the performance standards provisions that deemed approved establishments are responsible for nuisance activities in close proximity to each establishment, and that establishments follow Federal/State/local laws.Although neither city's ordinance has mandated a dedicated enforcement or hearing officer for deemed approved violations,both in fact have created such a position in the police department through administrative action.Both cities impose fees.Ventura has established a fee schedule that can vary between$250 and$1,400 depending on the type of business,hours of sale,and volume of alcohol sales.Oxnard has a fixed fee of$427. While sharing these similarities,the cities differ in their definition of nuisance activities.The Oxnard ordinance specifies 21 separate activities as nuisances that deemed approved establishments are responsible for preventing, compared to the Ventura ordinance,which refers only to "nuisance conditions" and litter and graffiti.The appeals and revocations processes for Oxnard deemed approved establishments are specified in the ordinance, while the Ventura code does not specify how these processes are to be carried out. Oxnard includes civil penalties and cost recovery among the potential penalties accrued by establishments in violation,while the Ventura ordinance refers to civil and criminal penalties. V. DISCUSSION In general,our findings suggest that all twelve ordinances maintain the same core structure and strategies employed by the original Oakland ordinance upheld by the California Court of Appeal.This is not surprising, since any major deviations that imposed significant additional burdens on licensees would likely lead to costly and possibly unsuccessful litigation.All the ordinances provide the basic tools for monitoring grandfathered alcohol establishments and reducing their adverse impact on community health and safety.In most cases,the ordinances provide sufficient enabling authority to support a comprehensive monitoring and enforcement program.San Francisco provides a notable exception to this general observation,since its ordinance exempts on-sale establishments.Jurisdictions that exempt restaurants may also encounter unintended barriers,since the definitions for restaurants may create ambiguity.Unless carefully monitored,exempted restaurants may transform into bars or nightclubs during late night hours.Such transformations(sometimes called "morphing") have been observed in California communities with large populations of college-age youth."This highlights the importance of having clearly articulated definitions of terms used in the ordinances. Although the core structures are similar,there remains a good degree of variation that may affect a jurisdiction's Reducing Community Alcohol Problems Associated with Alcohol Sales: 1 1 : , ` tt , J A], X010111. ­ I ok .ill inn•,I1 commitment to monitoring and enforcement.In other words,specific provisions may support or discourage effective implementation.Examples of supportive provisions include: • Vallejo's establishment of a complaint response team and advisory board; • Remedy opportunity provisions,that provide city officials with the authority to seek resolution of the problem without the need for formal hearings; • Provisions that make retailers responsible for nuisance activities beyond the strict confines of their establishment and include consideration of the compatibility of the business to other land uses in the neighborhood; • A clearly articulated hearing and appeals process to be followed in instances of serious non-compliance, reinforcing the city's intent to enforce the ordinance. Examples of provisions that may discourage effective implementation include: • San Leandro's and Richmond's lack of penalties for violators beyond paying costs; • Ventura's lack of a clear definition of what constitutes a public nuisance in the context of alcohol sales. Ventura County Behavioral Health Department's best practices analysis is focused at precisely this level— establishing standards for drafting DAOs that will facilitate their effectiveness in reducing community health and safety problems.All of the ordinances met some of the recommended standards,but all have some omissions or weaknesses.The weaknesses are not necessarily fatal and can be addressed through effective administration. For example,a dedicated law enforcement officer position and complaint response team can be established whether or not they are mandated by the ordinance.However,these practices are more likely to occur and less likely to be abandoned or undermined over time if they are formalized in the ordinance. These observations point to a limitation of our study. Our analysis focuses on the provisions found in specific DAOs.It omits both administrative practice and companion municipal code provisions not included in the DAO.Our findings and conclusions regarding the relative strength of a particular DAO should be interpreted with this limitation in mind.A city with a relatively weak DAO may have companion provisions addressing some of the identified weaknesses and may have a strong program on the ground. Conversely, a city with a relatively strong ordinance may have weak implementation. Fees The findings regarding fee schedules deserve special note. California cities and counties face limited and shrinking budgets,creating enormous pressure on local law enforcement officials to maintain staff and meet conflicting demands for service.DAO enforcement may he in jeopardy despite its positive impact on community safety and the likelihood that it reduces costs through preventing crime and violence.The problem may be exacerbated by the fact that many jurisdictions have relied on GAP(Grant Assistance Program) funds from the California Alcoholic Beverage Control Department to fund local enforcement of ABC laws.When the GAP funds end(usually after one year),the enforcement program is often terminated or continued without sufficient resources to maintain it.Fees provide a foundation for insuring that the costs of the deemed approved program are covered,providing ongoing support for local law enforcement programs,and underwriting the costs of retailer education through Responsible Beverage Service programs. Increased attention is needed to the fee structure.Enforcement and administration of a DAO should be considered a cost associated with alcohol retail sales.Expecting retailers to incorporate the fee into the retail price of alcohol products is an appropriate exercise of local authority.These costs are enormous,particularly if public health costs me included.However,the costs are not equally spread across all alcohol outlets—some create added risks and costs based on the type and size of the outlet and the manner in which they are operated. These considerations suggest two improvements to current practice.First,cities and counties should monitor on an ongoing basis their costs associated with retail alcohol sales and the costs of administering and enforcing a 12 Reducing Community Alcohol Problems Associated with Alcohol Sales: lh: ( a.1 utU'1111- A pI-n,.1 J t)rdm.i nw.Ill t_d,Ill'I comprehensive deemed approved program.The identified and documented costs should be substantially covered through the fee program. Second,fees should reflect the relative burden placed on the local jurisdiction by each retail establishment. Jurisdictions should track on a routine basis the past performance of retail establishments(e.g.,calls for service, past violations,frequency of patron intoxication,and lack of compliance with Responsible Business Practices) and adjust fees to reflect the extent to which city/county resources have been expended.The Alcohol/Drug Sensitive Information Planning System(ASIPS) provides one means to collect such monitoring data.18 Retail establishment type is a second important factor to be considered in a fee structure,since,in general,some types (e.g., bars,nightclubs)create more risks and costs than others(e.g.,restaurants without separate bars).The size of the alcohol outlet in terms of total alcohol sales represents a third factor,with larger outlets paying higher fees.This reflects the fact that the sheer volume of alcohol sales creates public health and safety costs across the jurisdiction. A carefully strucmred fee schedule that is tied to the costs associated with the program will also insure that it can withstand a court challenge that the fee is in fact a tax.As discussed in the introduction,linking the fee to the costs being addressed and documenting those costs are critical steps in defending the fee's legality. In this light,the fees being imposed among these twelve jurisdictions appear generally low and probably insufficient to fund an effective monitoring and enforcement effort. Consideration should be given to raising the fees to insure effective implementation and establishing an equitable fee structure based on the factors listed above.Increased monitoring of past performance should be integrated into the administration of the ordinance both to improve enforcement and to provide data for establishing fees. NOTES TO TABLE 1 1. Dedicated enforcement officer is also dedicated hearing officer. 2. Oakland exempts`full service restaurants"that have facilities to prepare and serve meals on the premises. To qualify for the exemption,the establishment must have at least 60 percent of its revenue derive from food sales. 3. City Council only hems appeals of decisions to revoke deemed approved status. 4. City manager sends notice of abatement to property owner.Property owner may appeal notice to a hearing officer. Appeal of hearing officer's decision is filed in court. 5. Appeals filed through city clerk,and are heard by "hearing officer." 6. Public safety director is charged with enforcement and conducts the hearing.Appeal of a decision to revoke goes to the city manager.The decision of the city manager is final. 7. Appeals are to Board of Appeals except for revocation,which is appealed to Board of Supervisors. 8. "Full-service restaurant," fast food establishments,dance halls and"retail establishments" are included. Bars and nightclubs not specifically included. 9. City attorney charged with enforcing all orders from Zoning Board or City Council. 10. Santa Rosa includes"restaurants with bars" in its ordinance.Restaurants "which serve alcohol with meals" are exempt. 11. Designates a three-member complaint response team,including representatives from development services deparrmen,police department,and VAPC (community coalition).Designates an alcohol outlet advisory board consisting of business owners to meet with police department to review complaints and to make recommendations on how to reduce/eliminate problems. 12. City Council only hears appeals of revocations. 13. ABC laws are specified;federal and local laws are not specified. 14. Appeal process not specified;default is City Council. 15. There is$500 fee for appealing an abatement notice. 16. Penalties not specified. 17. Retailers with less than$1,000 alcohol annual alcohol sales are exempt from fee. 18. There is a$200 additional permit fee for entertainment venues. i Reducing Community Alcohol Problems Associated with Alcohol Sales: 13 f 1), 'k 1 t rme 1 Arrio J ()rdin11", m 1,t, REFERENCES 1. For review of research,see:Ventura County Behavioral Health,Alcohol Retail Outlet Density Affects Neighborhood Crime and Violence.Ventura,CA:Ventura County Behavioral Health,Alcohol and Drugs Programs Prevention Services Issue Briefing(September 2008).Available at: blMJ/www venturacountylimits o dfs/vcl issuebrief alcoholdensitv.pilf_ 2. For discussion,see Mosher,J.,How to Use Local Regulatory and Land Use Strategies to Prevent Underage Drinking.Washington,DC:Office of Juvenile Justice and Delinquency Prevention(2000). Available at: htroJ/www udetc.ore/documents/LocalReaWLandUse.odf. 3. California Constitution,Art.20 522. 4. Cal. Box. &Prof.Code S 23790. S. Floresta Inc. v. City Council, 190 Cal.App.2d 599,605 (1961). 6. Wittman,F.and Shane,E,Manual for Community Planning to Prevent Problems of Alcohol Availability, Sacramento:California State Dept of Alcohol and Drug Programs(September, 1988). 7. Id.at Appendix B: Case Studies,pp. 119-140. 8. For a description of the Oakland ordinance and its enactment,we Mosher,J.and Works,R., Confronting Sacramento:State Preemption, Community Control, and Alcohol-Outlet Blight in Two Inner-City Communities.San Rafael,CA:Marin Institute for the Prevention of Alcohol and Other Drug Problems(1994). 9. City of Oakland v. Superior Court,53.Cal.App.4th 740(1996),review denied. 10. Ventura County Behavioral Health,Best Practices in Municipal Regulation to Reduce Alcohol-Related Harms from Licensed Alcohol Outlets.Ventura,CA:Ventura County Behavioral Health,Alcohol and Drugs Programs Prevention Services (2007). 11. We did not attempt to locate all ordinances due to limited resources.Because there is no single repository for city and county ordinances and on-line search capabilities are limited,such a search would require III contacting every jurisdiction. 12. Provisions related to Responsible Beverage Service training programs were excluded,since many tides enact RBS requirements in separate ordinances that would not have been captured in our ordinance search.We also excluded an examination of the links between DAO and CUP ordinances for the same reason.The "findings" sections of DAOs constitute an important variable as well because of their potential role in litigation. Our preliminary analysis suggested that the ordinances all had adequate findings sections and we therefore excluded them from our analysis on this basis. 13. Note that the ordinance can specify that a specific hearing officer will hear all DAO-related cases,but the hearing officer so identified must still be "independent", (i.e.,be impartial).Haas v. San Bernardino,27 Cal.4th 1017,Cal.Rptc2d 341 (2004). 14. Revocation of a deemed approved ordinance may not necessarily result in closure.The business may apply for a Conditional Use Permit under the city's CUP ordinance that is applied to new businesses.The requirements for obtaining a CUP are typically more stringent than the performance standards applied to deemed approved outlets. 15. Fee schedules are usually not found in the deemed approved ordinances.We retrieved this information from other sources,including administrative fee schedules available from city governmental offices.All fee rates were conformed by city officials with responsibility for administering the fees. 16. Recommended practice guidelines are drawn from Behavioral Health(2007)document. See note 10,supra. 17. Wittman,E Innovation in Planning,Managing and Policing Hospitality Zones:Issues in Local Land- Use Planning and Zoning for On-Sale Alcohol Outlets.Berkeley,CA:CLEW Associates,December 29, 2008.Presentation at the Responsible Hospitality Institute Networking Conference,San Francisco,CA, November 12-15,2008. 18. Wittman,F.,Community Control of Alcohol and Drug Risk Environments:The California Experience. Substance Use and Misuse 42:pp. 1835-1849(October 2007). EXHIBIT 4 CITY OF SAN BERNARDINO Community Development Department—Planning Division Memorandum TO: Planning Commission FROM: Terri Rahhal, City Planner SUBJECT: Development Code Amendment No. 10-04 Agenda Item 2 DATE: July 27, 2010 COPIES: Valerie C. Ross, Interim Director; Henry Empeflo Jr., Senior Deputy City Attorney; After publication of the staff report for this item, staff identified a few additional changes we would like to recommend in the Draft Conditional Use Permit — Deemed Approved Alcoholic Beverage Sales Regulations Ordinance (Deemed Approved Ordinance). The proposed changes are shown in redline format on the two affected pages of the ordinance, which are attached. The changes are summarized as follows: • The minimum sized store to be exempted from the CUP requirement and location criteria is reduced from 15,000 sq. ft. to 10,000 sq. ft. • A preface is added to Section III A to note exemptions to the locational restrictions in following subsections B—G. • All establishments for on-site consumption of alcohol may be exempted from the locational restrictions, subject to evaluation through the CUP process. • The exemption for specialty retail stores is simplified to allow for multiple locations to be approved. • Temporary uses are exempted from the locational restrictions, in addition to the exemption from the CUP requirement. The staff recommendation for this item remains the same: Recommendation: That the hearing be closed and that the Planning Commission recommend approval of Development Code Amendment No. 10-04 to the Mayor and Common Council, based on the findings of fact contained in the staff report. Attachment: Redline pages 7& 8 of the Draft Ordinance 7/21/10 CITY ATTORNEY DRAFT I district. This Article does not authorize alcoholic beverage sales activities in any land use district where 2 they are not otherwise allowed or permitted by the applicable involved zoning district's regulations. 3 The provisions of this ordinance are intended to compliment the State of California alcohol- related laws. The city does not intend to replace or usurp any powers vested in the California 4 Department of Alcoholic Beverage Control. 5 SECTION II—REQUIREMENT 6 Notwithstanding any other provisions of this Code,no new on-site or off-site alcoholic beverage 7 sales activity may be established unless a Conditional Use Permit is first obtained in accordance with the 8 requirements of this Article. The following uses are exempt from this requirement to obtain a Conditional Use Permit: 9 (A) Sit-down restaurants whose predominant function is the service of food and where the 10 on-site sale of alcoholic beverages is incidental or secondary. 11 (B) Establishments containing 45;00010,000 square feet or more, including but not limited to 12 supermarkets and drug stores, which do not sell alcoholic beverages as the principal business 13 14 (C) Establishments, whose applications have been deemed complete prior to the effective date of this Ordinance by the Community Developments Department. 15 (D) Temporary uses issued a Temporary License by the California Department of Alcoholic 16 Beverage Control and established in compliance with all City laws and regulations. 17 SECTION III—LOCATIONAL RESTRICTIONS 18 19 (A) Unless otherwise exempted under subsections B—G. A a new alcoholic beverage sales activity is not permitted within 500 feet of any of the following locations: 20 1. A public or private state licensed or accredited school 21 22 2. A public park, playground, recreational area, or youth facility,including a nursery school, preschool,or day-care facility 23 3. A place of worship or religious institution 24 25 4. A hospital 26 5. An alcohol or other drug abuse recovery or treatment facility 27 6. A county social service office. 2s 7 S, Pl ANNING,PC Stalr ReportS2010,07 28 2010 V=7 10 Dammed:apnrowd Redhnc'.do6. ,111 p2[tw.[LZ�u ,-r i — aloe 7/21/10 CITY ATTORNEY DRAFT 1 (B) Establishments containing 15;000 10,000 square feet or more, including but not limited to 2 supermarkets and drugstores, which do not sell alcoholic beverages as the principal business are exempt from these locational restrictions. 3 (CZSit down restaurants whose predominant function is the service of food and where the on-site 4 sale of alcoholic beverages is incidental or secondary are exempt from these locational 5 restrictions. An incidental bar or lounge shall be allowed for the convenience of dining patrons. (Establi.h..,.,..,,. ..h ieh are .._:.....-:ly a baf of lounge or have a h,._ ,._4,.,....., are as 6 a pFineipal a independent aetiyit . are not ineluded in!his exemption.) 7 f( r(1).) All other establishments for on-site consumption of alcohol may be exempted from the 8 locational restrictions, subject to evaluation of site-specific conditions through the Conditional Use Permit review process and considering recommendations from the Police 9 Department. 10 I I (D)L)_ Specialty retail establishments that offer unique product lines or variety of selection net warranting a finding of public convenience or necessity 12 are exempt from these locational restrictions. 13 An automobile service station convenience store that meets the location criteria of Section 14 19.06.030(2)(1)may be exempted from these locational restrictions, subject to evaluation of 15 site-specific conditions through the Conditional Use Permit review process and considering recommendations from the Police Department. 16 17 (E)LG) Temporary uses issued a Temporary License by the California Department of Alcoholic Beverage Control and established in compliance with all City laws and regulations are Is exempt from the locational restrictions. 19 20 (F)CH)_The following location conditions will be considered in the review of Conditional Use Permit applications,and may be grounds for denial based on potential adverse effects to the 21 public interest, health, safety or convenience: 22 23 1. A location within a crime reporting district,or within 500 feet of a crime reporting district, where the general crime rate exceeds the city-wide general crime rate by more 24 than 20 percent. 25 2. A location where the new alcoholic beverage sales activity would be within 500 feet from 26 an existing alcoholic beverage sales activity, or would lead to the grouping of more than four alcoholic beverage sales activities within a 1,000 foot radius from the new alcoholic 27 beverage sales activity. 28 8 S .PLANNING N MaJ7 Renorl 2010 07 282010%7-27-10 Deemed Appnnal Redline 2.d0ct:'14 AN :,NC u''S" RotwKt '24:P W P Q -- .,-..,.,—'_!-lU!#eH-UrdiMEM00 FN Offied %PPFj ed.dxe i EXHIBIT 5 PLANNING COMMISSION STAFF REPORT CITY OF SAN BERNARDINO PLANNING DIVISION CASE: Development Code Amendment No. 10-04 AGENDAITEM: 2 HEARING DATE: July 28,2010 WARD: City-wide APPLICANT: City-Initiated REQUEST/LOCATION: A proposal to amend Section 19.06.030(2)(8)of the Development Code to require a Conditional Use Permit for new alcoholic beverage sales activities and to establish deemed approved status for legal nonconforming activities. CONSTRAINTS/OVERLAYS: Not Applicable. ENVIRONMENTAL FINDINGS: ® Not Subject to CEQA per Section 15061(b)(3) ❑ Exempt per Section ❑ No Significant Effects ❑ Potential Effects, Mitigation Measures and Mitigation Monitoring/Reporting Plan STAFF RECOMMENDATION: ® Recommend Mayor and Council Approval. ❑ Approval ❑ Conditions ❑ Denial ❑ Continue DCA No. 10-04 Hearing Daze:07/282010 Page 2 PROJECT DESCRIPTION Development Code Amendment (DCA) No. 10-04 would amend the provisions of Development Code Chapter 19.06, Commercial Districts by replacing Section 19.06.030(2XB), the current permitting requirements, location criteria and operating standards for alcoholic beverage sales activities with the proposed "Conditional Use Permit — Deemed Approved Alcoholic Beverage Sales Regulations Ordinance." BACKGROUND Since 2007, a task force of City representatives and other organizations, including the County Public Health Department, has been working together to document the link between sales of single servings of alcoholic beverages, typically cans or bottles of beer ranging from 16 to 40 ounces, and violent crime. On April 5, 2010 the findings of this task force were presented to the Mayor and Common Council, including a presentation of the "Report on Analysis of Violence, Alcohol Outlets, and Sales of Single Serve Containers of Alcohol in San Bernardino, 2007 — 2009"by Dr. Robert Nash Parker of the UCR Presley Center for Crime and Justice Studies. On May 3, 2010, Urgency Ordinance MC-1323U was adopted by the Mayor and Common Council, based on a model "Deemed Approved"ordinance similar to ordinances adopted in other cities to curtail nuisance conditions and crime associated with alcoholic beverage sales. The matter was referred to the Legislative Review Committee and the Planning Commission for consideration of a regular ordinance to amend the Development Code. On May 26, 2010, staff presented a status report on preparation of the Development Code Amendment (erroneously referred to as DCA No. 10-03) and distributed the May 3, 2010 Request for Council Action, MC-1323U and multiple supporting documents (on CD) to the Planning Commission for review as background information. The Planning Commission also heard presentations by Dr. Parker of UCR and Dan Skiles, of the Institute for Public Strategies. The speakers presented their findings of a direct correlation between the density of alcohol outlets and the levels of violent crime, property crime and public nuisances in the surrounding community. The Planning Commission asked questions of the speakers, heard public comments and continued the item to June 9, 2010. That meeting was continued/adjourned to June 23, 2010, and again to July 28, 2010 with no further discussion of the item. CALIFORNIA ENVIRONMENTAL QUALITY ACT(CEOA) The proposed Development Code Amendment is not subject to the CEQA pursuant to Section 15061(b)(3) of the CEQA Guidelines, because the effect of the amendment would not result in a direct or reasonably foreseeable indirect physical change in the environment. The proposed amendment is not a project as defined in Section 15378 of the CEQA Guidelines, since it has no potential for resulting directly or indirectly in a physical change to the environment. i DCA No. 10.04 Hearing Date:07/28/2010 Page 3 ANALYSIS The California Department of Alcoholic Beverage Control (ABC) classifies licenses to sell alcoholic beverages in two major categories: 1. On-site: Sales of alcoholic beverages for on-site consumption, as in a restaurant or bar. (also known as"on-sale") 2. Off-site: Sales of alcoholic beverages for off-site consumption, as in a retail store. a (also known as"off-sale") ABC is responsible for issuing licenses and regulating the actual sales of alcoholic beverages. Cities and counties have authority over land use activities through zoning regulations. Section 19.06.030(2)(B) of the Development Code currently requires, with limited exceptions, a Conditional Use Permit (CUP) for land uses that include alcoholic beverage sales. The CUP application process provides for security improvements and operating requirements to be imposed as conditions of approval of the CUP. It also contains location criteria that restrict establishment of new alcoholic beverage sales activities in proximity to sensitive land uses, including parks, schools and religious institutions. Reports and testimony presented to the Mayor and Common Council and the Planning Commission, together with the supporting documents presented to both bodies, demonstrate negative impacts of violent crime, vandalism, and blight attributed mainly to off-site alcoholic beverage sales, especially from establishments where single servings of alcohol are sold, leading to immediate consumption on-site, in motor vehicles, or in surrounding public spaces. Single serving sales are routinely prohibited through the CUP approval process for new off-site alcoholic beverage sales outlets. However, the Development Code does not contain operating standards for existing alcoholic beverage sales outlets established prior to the current regulations, which continue to operate as legal non-conforming uses. The need for more consistent zoning regulations for alcoholic beverage sales was the impetus for the proposed Conditional Use Permit—Deemed Approved Alcoholic Beverage Sales Regulations Ordinance(DCA 10-04). The following current provisions of Section 19.06.030(2)(B) have been maintained in the proposed ordinance: • Restaurants with alcoholic beverage service ancillary to food service are exempt from the CUP requirement and the location criteria. • Retail establishments containing at least 15,000 square feet of floor area, that do not sell alcoholic beverages as the principal business are exempt from the CUP requirement and the location criteria. These uses are subject to conditional approval by the Director, with recommendations from the Police Department. DCA No. 10-04 Hearing Date:07128/2010 Page 4 The following are key features of the proposed ordinance that differ from current regulations: • The list of sensitive uses/areas requiring a 500-foot separation from new alcoholic beverage sales activities is expanded to include hospitals, drug and alcohol abuse recovery or treatment facilities, other social services and crime reporting districts where crime rates exceed the City-wide average by more than 20%. A 1,000-foot separation from other alcoholic beverage sales activities has been added. • To retain some flexibility in siting new uses that may have conflicting location requirements, exceptions to the standard location criteria may be approved for automobile service stations and unique specialty retailers, subject to site-specific analysis through the Conditional Use Permit review process. • Application materials required for CUP applications are specified to include information about surrounding land uses required to verify conformance to location criteria. • Existing legal non-conforming alcoholic beverage sales activities are "deemed approved' subject to uniform performance standards, including compliance with applicable laws and regulations and prevention of repeated nuisance activities on,or emanating from the site. • A compliance program funded by an annual permit fee is established, providing for an administrative hearing officer with the discretion to assess administrative civil penalties, impose additional operating requirements,or to revoke"deemed approved'status. DCA No. 10-04, the "Conditional Use Permit — Deemed Approved Alcoholic Beverage Sales Regulations Ordinance" is recommended for approval based on the following findings of fact: FINDINGS 1. The proposed amendment is consistent with the General Plan. The proposed Development Code Amendment would serve to reduce nuisance activities and potentially harmful effects associated with alcoholic beverage sales activities, including violent crime, vandalism and general blight, consistent with the following General Plan goals and policies: Goal 2.8: "Protect the life and property of residents, businesses, and visitors to the City of San Bernardino from crime....:. Policy 2.8.3: "Encourage projects to incorporate the Crime Prevention Through Environmental Design(CPTED)and defensible space techniques to help improve safety. Goal 7.1: "Protect the residents of San Bernardino from criminal activity and reduce the incidence of crime" DCA No. 10-04 Hearing Date:07/20010 Page 5 Policy 7.1.5: "Ensure that landscaping (i.e. trees and shrubbery) around buildings does not obstruct views required to provide security surveillance." Policy 7.1.7: "Require the provision of security measures and devices that are designed to increase visibility and security in the design of building siting, interior and exterior design, and hardware. 2. The proposed amendment would not be detrimental to the public interest, health, safety, convenience or welfare of the City. The proposed amendment would apply more stringent regulations to land use activities involving sales of alcoholic beverages, to reduce and avoid crimes and public nuisances often associated with alcoholic beverage sales. The "Conditional Use Permit — Deemed Approved Alcoholic Beverage Sales Regulations Ordinance" would enact permitting requirements, location criteria and operating standards that would protect youth facilities and other sensitive land uses from potential negative impacts of land uses involving alcoholic beverage sales. Therefore, the proposed amendment, DCA No. 10-04 would not be detrimental to the public interest, health, safety, convenience or welfare of the City. CONCLUSION Approval of Development Code Amendment No. 10-04 would impose more stringent location criteria, application requirements and conditions of approval on off-site alcoholic beverage sales activities. It would also provide uniform performance standards and enforcement mechanisms for existing non-conforming off-site sales, in order to reduce and prevent associated criminal activity and public nuisances, consistent with the direction of the Mayor and Common Council, as set forth in Urgency Ordinance No. MC-1323U. RECOMMENDATION Staff recommends that the Planning Commission recommend approval of Development Code Amendment No. 10-04 to the Mayor and Common Council, based on the findings of fact contained in this staff report. Respectfully Submitted, Valerie C. Ross Interim Community Development Director I DCA No. 10-04 Hearing Date:072812010 Page 6 Terri Rahhal City Planner Attachments: A: Draft Ordinance B: Strikeout/underline version illustrating changes from MC-1323U C: Additional Information from the Institute for Public Strategies i ATTACHMENT A 7/21/10 CITY ATTORNEY DRAFT 1 ORDINANCE NO. 2 A ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SAN 3 BERNARDINO MUNICIPAL CODE SECTION 19.06.030(2)(B) (DEVELOPMENT CODE) REQUIRING A CONDITIONAL USE PERMIT FOR NEW ALCOHOLIC BEVERAGE SALES 4 ACTIVITIES AND ESTABLISHING AUTOMATIC DEEMED APPROVED STATUS FOR LEGAL NONCONFORMING ACTIVITIES. 5 v The Mayor and Common Council of the City of San Bernardino do ordain as follows: 7 WHEREAS, Section 40(z)of the City Charter vests the Mayor and Common Council with the 8 power to make and enforce all laws and regulations with respect to municipal affairs, subject only to the restrictions and limitations provided in the Charter or by State law; and 9 o WHEREAS, research shows that areas with greater densities of on-site and off-site alcohol outlets also generally have higher rates of motor vehicle crashes, alcohol-related hospital admissions, pedestrian injury collisions, self-reported injury and drinking and driving among both young people and 12 adults; and 13 WHEREAS, the relationship between alcohol outlet density and violent crime has been well 14 documented; communities with 100 or more alcohol outlets and a population of 50,000 or more can expect an annual increase of 2.5 violent crimes each year for every alcohol outlet added in the area; and 15 16 WHEREAS, drunk driving arrests often take place at night, as bars are closing and highways become crowded with patrons who have been drinking; and 17 WHEREAS, studies indicate the rate of alcohol-related crashes can be reduced by responsible 18 beverage service training programs, but the level of risk still is high when outlet density exceeds the 19 acceptable levels of saturation; and 20 WHEREAS, nuisance and criminal activities such as drug dealing, public drunkenness, loitering and other behaviors that negatively impact neighborhoods occur with disproportionate frequency at and 21 around the premises of on-site and off-site sale alcohol uses; and 22 WHEREAS, neighborhood character can change over time and the careful regulation of 23 nuisance activity by on-site and off-site alcohol uses will help to ensure that such uses do not contribute a to the deterioration of neighborhoods; and 25 WHEREAS, the citizens of the City of San Bernardino have complained to the San Bernardino Police Department about said nuisance and criminal activities; and 26 WHEREAS, there are many establishments in the City of San Bernardino selling alcoholic 2' beverages that do not conform with the Development Code and, as a result, these establishments 28 generate a disproportionate amount of public nuisance service calls for service for the San Bernardino Police Department; and I S:`.PLANNING\PC Staff Reports\2010\07.28.10\7-21-10 Draft Ordinance Deemed Approved.doc 7/21/10 CITY ATTORNEY DRAFT WHEREAS, California law does not preempt local land use and zoning regulations with regard to the sale of alcoholic beverages and the authority to regulate nuisance conditions created by state- licensed alcoholic beverage retailers derives from the City's Charter and general law police powers. 3 WHEREAS,the City of San Bernardino recognizes its responsibility to enforce the law and the 4 need for a partnership with alcoholic beverage sale establishments and the community to address illegal 5 activities in proximity to an alcoholic beverage sales establishment. 6 WHEREAS, the City wishes to require certain new alcoholic beverage sale establishments to obtain a conditional use permit to lawfully engage in the sale of alcoholic beverages within the City; and 7 s WHEREAS, the conditional use permit will require the business owner to comply with operational standards and training requirements as conditions of the conditional use permit; and 9 WHEREAS, the City wishes to designate each lawfully established and existing alcoholic 10 beverage sale business to be "deemed approved"to lawfully engage in the sale of alcoholic beverages 11 and be required to comply with operational standards as conditions to its deemed approved status; and 12 WHEREAS, the California Court of Appeals in City of Oakland, et al. v. Superior Court, et al., 45 Cal.App.4rh 740 (1996) held that a similar"deemed approved"ordinance was not preempted by state 13 laws regulating the sale of alcoholic beverages because the ordinance merely created an administrative 14 mechanism for enforcing nuisance and criminal laws that were applicable to all alcoholic beverage establishments, even those in operation before the ordinance's effective date; and 15 WHEREAS, the Mayor and Common Council,by adopting this ordinance,have no intention to 6 regulate the sale of alcoholic beverages, but merely a desire to create an administrative mechanism 17 applicable to all alcoholic beverage establishments, to address the nuisance and criminal activities described above; and 18 WHEREAS, an annual use permit fee will be imposed on all alcoholic beverage sale establishments in order to provide the revenue necessary to fund the costs incurred by the City to 20 monitor compliance and enforce the conditions of the conditional use permit and the standards for Deemed Approved businesses, and implement programs that promote responsible policies and practices 21 of businesses engaged in the sale of alcoholic beverages; and 22 WHEREAS, the annual use permit will establish standards of operation for licensed alcoholic 23 beverage sale establishments in order to promote successful business practices compatible with healthy economic growth, community safety, and quality of life of San Bernardino residents; 24 25 NOW, THEREFORE, THE MAYOR ANDCOMMON COUNCIL OF THE CITY OF SAN BERNARDINO DO ORDAIN AS FOLLOWS: 26 SECTION 1. San Bernardino Municipal Code Section 19.06.030(2)(B) (Development Code) is 27 amended to read as follows: 28 2 SAPLANNING\PC Staff Reports\2010\07.28.10\7-21-10 Draft Ordinance Deemed Approved.doc 7/21/10 CITY ATTORNEY DRAFT Section 19.06.030(2)(B) 2 ARTICLE 1 —GENERAL 3 SECTION 1 —TITLE AND PURPOSE 4 5 A. Title: 6 (1) This ordinance shall be known as the Conditional Use Permit - Deemed Approved Alcoholic Beverage Sales Regulations Ordinance. 7 8 (2) This ordinance requires land use permits for newly established alcoholic beverage sales activities, confers deemed approved status for existing alcoholic beverage sales activities and provides 9 standards and an administrative hearing process to review violations of those standards in order to protect the general health, safety, and welfare of the residents of the City of San Bernardino and to 10 prevent nuisance activities where alcoholic beverage sales occur. II B. Purpose: 12 (1) To protect residential, commercial, industrial and civic areas and minimize the adverse 13 impacts of nonconforming and incompatible uses; and 14 (2) To provide opportunities for alcoholic beverage sales establishments to operate in a mutually 15 beneficial relationship to each other and to other commercial and civic services; and 16 (3) To provide mechanisms to address problems associated with the public consumption of 17 alcoholic beverages such as litter, loitering, graffiti, unruly behavior and escalated noise levels; and 18 (4) To provide that alcoholic beverage sales establishments are not the source of undue public 19 nuisances in the community; and 20 (5) To provide for properly maintained alcoholic beverage sales establishments so that the negative impacts generated by these activities are not harmful to the surrounding environment in any 21 way; and 22 (6) To monitor Deemed Approved establishments to ensure they do not substantially change in 23 mode or character of operation. 24 SECTION 11—DEFINITIONS 25 The meaning and construction of these words and phrases, as set forth below, shall apply 26 throughout, except where the context clearly indicates a different meaning or construction. 27 (A) "Administrator"means the Administrative Hearing Officer as identified in Section III. 28 3 S:TLANNINGTC Staff Reports\2010\07.28.10\7-21-10 Draft Ordinance Deemed Approved.doc 7/21/10 CITY ATTORNEY DRAFT I (B) "Alcoholic Beverage" means alcohol, spirits, liquor, wine, beer, and any liquid or solid 2 containing alcohol, spirits, wine, or beer, that contains one-half of one percent or more of alcohol by volume and that is fit for beverage purposes either alone or when diluted, mixed or combined with other 3 substances, the sale of which requires a ABC license. A (C) "Alcoholic Beverage Sales Activity" means the retail sale of alcoholic beverages for onsite or offsite consumption. 6 (D) "Alcoholic Beverage Sales Establishment" means an establishment where an alcoholic beverage sales activity occurs. Alcoholic beverage sales establishments include but are not limited to the 7 following recognized types of establishments: liquor stores; beer and wine stores; convenience markets; 8 markets; neighborhood specialty food markets; retail sales establishments; wine shops; service stations; taverns; clubs; cocktail lounges, ballrooms, cabarets, dance bars, piano bars; billiard or game parlors, 9 bowling alleys; nightclubs, dance halls; cafes, bars, restaurants with bars; full-service restaurants; and fast food establishments. n) (E) "California Department of Alcoholic Beverage Control"or"ABC"refers to the department of the State of California empowered to act pursuant to Article 20, section 22, of the California 12 Constitution and authorized to administer the provisions of the Alcoholic Beverage Control Act. 13 (F) "Conditions of Approval"means a requirement that must be carried out by the activity by: 14 (1) a new alcoholic beverage sales activity to exercise a land use permit; or(2) a legal nonconforming alcoholic beverage sales activity to comply with deemed approved performance standards and to retain 15 its deemed approved status. It' (G) "Deemed Approved Activity"means any Legal Nonconforming alcoholic beverage sales 17 activity, as defined in subsection(J). Such activity shall be considered a Deemed Approved activity as long as it complies with the Deemed Approved Performance Standards set forth in Article III, Section 18 IV. 19 (H) "Deemed Approved Status"means the permitted use of land for a Deemed Approved 20 Activity. Deemed Approved status replaces Legal Nonconforming status with respect to Alcoholic Beverage Sales Commercial Activity and remains in effect as long as it complies with the Deemed 21 Approved provisions and performance standards. 22 (I) "Illegal Activity'means an activity, which has been finally determined to be in 23 noncompliance with the Deemed Approved provisions and performance standards. Such an activity shall lose its Deemed Approved status and shall no longer be considered a Deemed Approved activity. 24 25 (J) "Legal Nonconforming Alcoholic Beverage Sales Commercial Activity"or "Legal Nonconforming Activity"means an Alcoholic Beverage Sales Commercial Activity which was a 26 nonconforming use pursuant to San Bernardino Municipal Code (Development Code) Chapter 19.62, and for which a valid state of California Alcoholic Beverage Control license had been issued and used in 27 the exercise of the rights and privileges conferred by the license at a time immediately prior to the 28 effective date of the Deemed Approved Alcoholic Beverage Sale Regulations Ordinance. Such an a S:\PLANNING\PC Starr Reports\2010\07.28.10\7-21-10 Draft Ordinance Deemed Approved.doc 7/21/10 CITY ATTORNEY DRAFT I activity shall be considered a Deemed Approved Activity and shall no longer be considered a Legal 2 Nonconforming Activity. 3 (K) "Off-Sale Alcohol Outlet"means an establishment that conducts retail sales of Alcoholic Beverages for consumption off the premises where sold. 4 5 (L) "On-Sale Alcohol Outlet"means an establishment that conducts retail sales of Alcoholic Beverages for consumption on the premises where sold. 6 (M) "Operational Standards'means regulations for the business practice activities and land use 7 for locations with a Conditional Use Permit or those further requirements imposed to achieve these 8 goals. Operational Standards constitute requirements which must be complied with by an establishment in order to maintain its Conditional Use Permit. 9 (N) "Performance Standards" means regulations for the business practice activities and land use for locations with Deemed Approved status or those further requirements imposed to achieve these goals. Performance Standards constitute requirements which must be complied with by an establishment in order to retain its Deemed Approved status. 12 (0) "Permit'means a Conditional Use Permit issued pursuant to this ordinance. 13 14 (P) "Permittee"means the individual or entity that owns an alcoholic beverage sale establishment and to whom a Conditional Use Permit to operate an alcoholic beverage sale 15 establishment has been issued by the City of San Bernardino. 16 (Q) "Premises" means the actual space within a building devoted to alcoholic beverage sales. 17 (R) "Restaurant'means a bona fide eating place whose predominant function is the service of 18 food and where on-site sale of alcoholic beverages is incidental or secondary. 19 20 SECTION III—ADMINISTRATIVE HEARING OFFICER 21 The"Administrative Hearing Officer"shall have the same appointment and qualifications as that 11 designated in San Bernardino Municipal Code Chapter 9.93, Administrative Civil Penalties; and shall conduct public hearings and make recommendations intended to encourage and achieve the compliance 23 of particular alcoholic beverage sale establishments with the provisions of this Ordinance. This section is not intended to restrict the powers and duties otherwise pertaining to other City officers or bodies in 24 the field of monitoring and ensuring the harmony of alcoholic beverage sale activities in the City. The 25 Administrative Hearing Officers shall have the powers and duties assigned to them by the Development Code, and other San Bernardino Municipal Code ordinances. 26 SECTION IV - INSPECTION AND RIGHT OF ENTRY 27 28 The sale of alcoholic beverages is a closely regulated industry. The officials responsible for enforcement of the City Municipal Code or other provisions of the Development Code or their duly 5 S:\PLANNING\PC Staff Reports\2010\07.28.10\7-21-10 Draft Ordinance Deemed Approved.doc 7/21/10 CITY ATTORNEY DRAFT I authorized representatives may enter on any site or into any structure open to the public for the purpose 7 of investigation provided they shall do so in a reasonable manner whenever they have cause to suspect a violation of any provision of this ordinance or whenever necessary to the investigation of violations to 3 the Conditions of Approval or Deemed Approved performance standards prescribed in these regulations. If an owner, occupant or agent refuses permission to enter, inspect or investigate, premises which are not 4 open to the public, the officials or their representatives may seek an inspection warrant under the 5 provisions of California Code of Civil Procedure section 1822.50 et. seq. All such inspections shall be conducted in compliance with the Fourth Amendment to the United States Constitution. e SECTION V- SE V ERABILITY 7 If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be 8 invalid, such decision shall not affect the validity of the remaining portions of this ordinance. The Mayor and Common Council hereby declare that it would have adopted the ordinance and each section, 9 subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more of the sections subsections, sentences,clauses or phrases may be declared invalid. 10 I I ARTICLE II —CONDITIONAL USE PERMITS FOR NEW ALCOHOLIC BEVERAGE SALES ACTIVITIES 12 SECTIONI— PURPOSE 13 14 The general purposes of these regulations are to protect and promote the public health, safety, comfort, convenience, prosperity and general welfare by requiring consideration and approval of a 15 Conditional Use Permit before a new alcoholic beverage sales activity will be permitted in any land use zoning district of the City and by requiring all new alcoholic beverage sales activities to comply with the r' operational standards in this ordinance and to achieve the following objectives: 17 (A) Protect surrounding neighborhoods from the harmful effects attributable to the sale of 18 alcoholic beverages and to minimize the adverse impacts of nonconforming and incompatible uses. 19 (B) Encourage businesses selling alcoholic beverages to operate in a manner that is mutually 20 beneficial to other such businesses and other commercial and civic activities. 21 (C) Provide a mechanism to address problems often associated with the public consumption of alcoholic beverages, such as litter, loitering, graffiti, unruly behavior and escalated noise levels. 23 (D) Ensure that businesses selling alcoholic beverages are not the source of undue public 24 nuisances in the community. 2s (E) Ensure that sites where alcoholic beverages are sold are properly maintained so that negative 26 impacts generated by these activities are not harmful to the surrounding environment in any way. 27 This Article alone does not allow or permit alcoholic beverage sales activities, but only applies to 28 these activities where otherwise allowed or permitted within an involved applicable land use zoning 6 SAPLANNING\PC Staff Repons\2010\07.28.10\7-21-10 Draft Ordinance Deemed Approved.doc 7/21/10 CITY ATTORNEY DRAFT I district. This Article does not authorize alcoholic beverage sales activities in any land use district where I they are not otherwise allowed or permitted by the applicable involved zoning district's regulations. 3 The provisions of this ordinance are intended to compliment the State of California alcohol- related laws. The city does not intend to replace or usurp any powers vested in the California 4 Department of Alcoholic Beverage Control. 5 SECTION II —REQUIREMENT 6 Notwithstanding any other provisions of this Code, no new on-site or off-site alcoholic beverage 7 sales activity may be established unless a Conditional Use Permit is first obtained in accordance with the $ requirements of this Article. The following uses are exempt from this requirement to obtain a Conditional Use Permit: (A) Sit-down restaurants whose predominant function is the service of food and where the 10 on-site sale of alcoholic beverages is incidental or secondary. II (B) Establishments containing 15,000 square feet or more, including but not limited to 12 supermarkets and drug stores, which do not sell alcoholic beverages as the principal business 13 14 (C) Establishments, whose applications have been deemed complete prior to the effective date of this Ordinance by the Community Development s Department. 15 (D) Temporary uses issued a Temporary License by the California Department of Alcoholic 6 Beverage Control and established in compliance with all City laws and regulations. 17 SECTION III—LOCATIONAL RESTRICTIONS 18 (A) A new alcoholic beverage sales activity is not permitted within 500 feet of any of the following locations: 20 1. A public or private state licensed or accredited school 21 22 2. A public park, playground, recreational area, or youth facility, including a nursery school, preschool, or day-care facility 23 3. A place of worship or religious institution 24 4. A hospital 26 5. An alcohol or other drug abuse recovery or treatment facility 27 6. A county social service office. 28 7 S:`,PLANNING\PC Staff Reports\2010\07.28.10\7-21-10 Drafl Ordinance Deerned Approved.doc 7/21/10 CITY ATTORNEY DRAFT I (B) Establishments containing 15,000 square feet or more, including but not limited to 2 supermarkets and drugstores, which do not sell alcoholic beverages as the principal business are exempt from these locational restrictions. 3 (C) Sit down restaurants whose predominant function is the service of food and where the on-site 4 sale of alcoholic beverages is incidental or secondary are exempt from these locational restrictions. An incidental bar or lounge shall be allowed for the convenience of dining patrons. (Establishments which are primarily a bar or lounge or have a bar or lounge area as 6 a principal or independent activity are not included in this exemption.) 7 (D) Specialty retail establishments that offer unique product lines or variety of selection not 8 available in the City and therefore warranting a finding of public convenience or necessity are exempt from these locational restrictions. 9 io (E) An automobile service station convenience store that meets the location criteria of Section 19.06.030(2)(T) may be exempted from these locational restrictions, subject to evaluation of I I site-specific conditions through the Conditional Use Permit review process and considering 12 recommendations from the Police Department. 13 (F) The following location conditions will be considered in the review of Conditional Use 14 Permit applications, and may be grounds for denial based on potential adverse effects to the public interest, health, safety or convenience: 15 16 1. A location within a crime reporting district, or within 500 feet of a crime reporting 17 district, where the general crime rate exceeds the city-wide general crime rate by more than 20 percent. 18 2. A location where the new alcoholic beverage sales activity would be within 500 feet from 19 an existing alcoholic beverage sales activity, or would lead to the grouping of more than 20 four alcoholic beverage sales activities within a 1,000 foot radius from the new alcoholic beverage sales activity. 21 22 SECTION IV—OPERATIONAL STANDARDS 23 All new alcoholic beverage sales activities shall be designed, constructed, and operated to 24 conform to all of the following operational standards: 15 (A) That it does not result in adverse effects to the health, peace or safety of persons residing or 26 working in the surrounding area. 27 (B) That it does not jeopardize or endanger the public health or safety of persons residing or 28 working in the surrounding area. 8 S. PLANNING\PC Stan Reports\2010\07.28.10\7-21-10 Draft Ordinance Deemed Approved.doc 7/21/10 CITY ATTORNEY DRAFT (C) That it does not result in 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 3 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 4 violations, curfew violations, lewd conduct, or police detentions and arrests. s (D) That it complies with all provisions of local, state or federal laws, regulations or orders, 6 including but not limited to those of the California Department of Alcoholic Beverage Control ("ABC"), California Business and Professions Code §§ 24200, 24200.6, and 25612.5, as well as any condition 7 imposed on any permits issued pursuant to applicable laws, regulations or orders. This includes 8 compliance with annual City business registration fees and annual use permit fees. v (E) That its upkeep and operating characteristics are compatible with, and will not adversely affect the livability or appropriate development of abutting properties and the surrounding 10 neighborhood. II (F) That the owners and all employees of the alcohol beverage sales establishment who are 12 involved in the sale of alcoholic beverages complete an approved course in 'Responsible Beverage Sales" (RBS) within sixty(60) days of hire for employees hired after the passage of this ordinance or 13 within 6 months of the passage of this ordinance for existing employees. To satisfy this requirement, a 14 certified program must meet the standards of the Alcohol Beverage Control Responsible Beverage Service Advisory Board or other certifying/licensing body designated by the State of California. 15 (G)That all alcohol beverage sales activities pay an annual fee in order to defray the expense to 16 the City for the Outreach and Education Program and Monitoring and Enforcement Activities. 17 (H) A copy of these operational standards, any applicable ABC or City operating conditions, and 18 any training requirements shall be posted in at least one prominent place within the interior of the establishment where it will be readily visible and legible to the employees and patrons of the establishment. 20 SECTION V—ADMINISTRATION 21 22 The San Bernardino City Planning Commission shall administer Conditional Use Permits. 23 SECTION VI — PERMIT APPLICATION 24 Any person, association, partnership, corporation or other entity desiring to obtain an alcoholic 25 beverage sales activity Conditional Use Permit shall file an application with the City of San Bernardino Community Development Department to forward to the San Bernardino City Planning Commission on a 26 form provided by the City. The application shall be accompanied by a nonrefundable application processing fee in an amount established by a resolution of the Mayor and Common Council. 27 8 The application for a Conditional Use Permit shall include, but not be limited to the following information: v S:\PLANNING\PC Staff Reports\2010\07.28.10\7-21-10 Draft Ordinance Deemed Approved.doc 7/21/10 CITY ATTORNEY DRAFT I 2 (A) The name, address and telephone number of the applicant. If the applicant is a corporation, the applicant shall set forth the name of the corporation exactly as shown in its articles of incorporation. 3 The applicant corporation or partnership shall designate one of its officers or general partners to act as its responsible management officer. a 5 (B) The name, address, and telephone number of each lender or share holder with a five percent or more financial interest in the proposed business or any other person to whom a share or percentage of 6 the income of the establishment is to be paid. 7 (C) The name, address, and telephone number of the person who shall manage and operate the 8 establishment for which the permit is requested. 9 (D)The name, address, and telephone number of all existing schools, parks, playgrounds or recreational areas, nonprofit youth facilities, places of worship, hospitals, alcohol or other drug abuse 10 recovery or treatment facilities or county social service offices within 500 feet of the proposed alcoholic I I beverage sales activity establishment. 12 (E)The name, address, and telephone number of all alcoholic beverage sale activities within 500 feet of the proposed alcoholic beverage sales activity establishment and within a 1000 foot radius from 13 the proposed alcoholic beverage sales activity establishment. 14 (F) The name, address, and telephone number of a person authorized to accept service of legal 15 notices. 16 (G) The proposed business name of the alcoholic beverage sales activity establishment and 17 description of all operating aspects of the proposed business. 18 (H) The type of ABC license the applicant is seeking for the alcoholic beverage sales activity establishment. 19 20 (I) Any other information reasonably necessary to accomplish the purposes of this ordinance. 21 (J)The Planning Commission may refer the application to other City departments to determine 22 whether the premises where the alcoholic beverage sales activity establishment will be located, complies with the City's building, health, zoning and fire ordinances or other applicable ordinances or laws. City 23 departments may conduct an inspection of the premises to determine compliance with the ordinances and other laws they administer. City departments may prepare reports summarizing their inspections and 24 recommending whether to approve or deny the application based on their inspections. 25 SECTION VII—ACTION ON PERMIT APPLICATION 26 The Planning Commission shall approve issuance of the Conditional Use Permit to allow a new 27 alcoholic beverage sales activity upon making the following findings: 28 10 S:\PLANNING\PC Staff Reports\2010\07.28.10\7-21-10 Draft Ordinance Deemed Approved.doc 7/21/10 CITY ATTORNEY DRAFT I (A) The proposed alcoholic beverage sales activity establishment is located in a zoning district in which the establishment is a permitted use. 3 (B) A finding of"public convenience and necessity" (Business and Professions Code Section 23958.4(b) (2)), if the activity will be located in an area that has been determined by the state of 4 California Department of Alcoholic Beverage Control to have an undue concentration of licenses as 5 defined in Business and Professions Code Section 23958.4(a). G (C) A finding that the alcoholic beverage sales activity will not aggravate existing problems in the neighborhood created by the sale of alcohol such as loitering, public drunkenness, alcoholic 7 beverage sales to minors, noise and littering. s (D) The proposed establishment will not detrimentally affect nearby neighborhoods considering 9 the distance of the alcohol establishment to residential buildings, schools, parks, playgrounds or recreational areas, nonprofit youth facilities, places of worship, hospitals, alcohol or other drug abuse 10 recovery or treatment facilities, county social service offices, or other alcoholic beverages sales activity 11 establishments. 12 (E) The proposed establishment will otherwise be compatible with existing and potential uses 13 within the general area. 4 (F) The proposed establishment is not located in what has been determined to be a high-crime area or where a disproportionate number of police service calls occur. 15 IG (G) The use of the proposed establishment is consistent with the General Plan. 17 SECTION VIII—CONDITIONS OF APPROVAL 18 Conditions of Approval that may be imposed include but are not limited to the following: 19 (A) Prohibited Products: To discourage nuisance activities, an Off-Sale Alcohol Outlet maybe 20 prohibited from selling one or more of the following products: 21 (1) Wine or distilled spirits in containers of less than 750 milliliters. 22 (2)Malt beverage products with alcohol content greater than five and one-half percent by 23 volume. 24 (3) Wine with an alcoholic content greater than 14 percent by volume unless in corked bottles 25 and aged at least two years. 26 (4) Beer or malt liquor sold individually in containers of 40 ounces or less. 27 (5) Containers of beer or malt liquor not in their original factory packages of six-packs or 28 greater. 11 SAPLANNING\PC s(aff Reports\2010\07.28.10\7-21-10 Draft Ordinance Deemed Approved.doc 7/21/10 CITY ATTORNEY DRAFT 1 (6) Distilled spirits in bottles or containers smaller than 375 milliliters. 2 (7) Cooler products, either wine- or malt beverage-based, in less than four-pack quantities. 3 (B) Pay Telephones: Pay telephones on the site of the establishment shall be required to be of 4 the type that only allow outgoing calls and shall be located in a visible and well-lighted location. 5 (C) Program: A "complaint response community relations" program established and maintained 6 by the establishment conducting the Deemed Approved Activity may be required. The program may include the following: 7 8 (1) Posting at the entry of the establishment providing the telephone number for the area commander of the local law enforcement substation to any requesting individual. v (2) Coordinating efforts with the police department to monitor community complaints about the 10 establishment activities. II (3) Having a representative of the establishment meet with neighbors or the applicable 12 neighborhood association on a regular basis and at their request attempt to resolve any neighborhood 13 complaints regarding the establishment. 14 (D) Activities: If appropriate the following activities may be prohibited on the premises: pool or billiard tables football or pinball games, arcade style video or electronic games coin-operated 15 amusement devices. 16 (E) Chilled Alcoholic Beverages: An Off-Sale Alcohol Outlet may be prohibited from 17 maintaining refrigerated or otherwise chilled alcoholic beverages on the premises. 18 (F) Hours of Operation: In an Off-Sale Alcohol Outlet, the sale of alcoholic beverages may be restricted to certain hours of each day of the week unless limited further by the State of California Department of Alcoholic Beverage Control. 20 G Cups: In Off-Sale Outlets, the sale or distribution to the customer of paper or plastic cups in 21 quantities less than their usual and customary packaging may be prohibited. '-2 (H) Signs: The following signs shall be required to be prominently posted in a readily visible 23 manner on an interior wall or fixture, and not on windows, in English, Spanish and the predominant language of the patrons: 24 25 (1) "California State Law prohibits the sale of alcoholic beverages to persons under 21 years of age." 26 (2) "No Loitering or Public Drinking." 27 28 (3) "It is illegal to possess an open container of alcohol in the vicinity of this establishment." 12 S:\PLANNING\PC Stan Reports\2010\07.28.10\7-21-10 Draft Ordinance Deemed Approved.doc 7/21/10 CITY ATTORNEY DRAFT 1 (1) Presentation of Documents: A copy of the Conditions of Approval and the I California Department of Alcoholic Beverage Control license shall be required to be kept on the premises and presented to any City Enforcement Officer or authorized state or county official upon 3 request. 4 (J) Mitigating Alcohol Related Problems: The establishment shall be required to operate in a 5 manner appropriate with mitigating alcohol related problems that negatively impact those individuals living or working in the neighborhood including but not limited to sales to minors, the congregation of 6 individuals, violence on or near the premises, drunkenness, public urination, solicitation, drug-dealing, drug use, loud noise and litter. 7 8 (K) Drug Paraphernalia: An Off-Sale Alcohol Outlet shall be prohibited from selling drug/tobacco paraphernalia products as defined in Health and Safety Code sections 9 11014.5 and 11364.5. "Drug Paraphernalia"means all equipment products and materials of any kind that are used intended for use or designed for use in planting, propagating, cultivating, growing, 10 harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, I I analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of the California Uniform 12 Controlled Substances Act commencing with California Health and Safety Code section 11000. 13 (L) Loitering_The establishment's operators or employees shall be required to discourage 14 loiterers and to ask persons loitering longer than fifteen minutes to leave the area and contact local law enforcement officials for enforcement of applicable trespassing and loitering laws if persons requested 15 to leave fail to do so. 16 (M) Security Cameras: At least two 24-hour time lapse security cameras may be required to be 17 installed and properly maintained on the exterior of the building at locations recommended by the Police Department. All criminal and suspicious activities recorded on this surveillance equipment must be Is reported to local law enforcement. To the extent allowed by law, the establishment operators may be required to provide any tapes or other recording media from the security cameras to the Police Department. [Request Police Dept. input] 20 (N) Security Guards: An establishment may be required to retain a specified number of security 21 guards. The number of security guards shall vary based upon the specific facts and circumstances of each establishment site and operation. All security guards shall have all required state and City permits and licenses. 23 (0) Prohibited Ve etg ation Exterior vegetation shall not be planted or maintained that could be 24 used as a hiding place for persons on the premises. Exterior vegetation may be planted and maintained in 25 a manner that minimizes its use as a hiding place. 26 (P) Window Obstructions: No more than 25% of windows or clear doors shall bear advertising of any sort, and all advertising signage shall be placed and maintained in a manner that ensures that law 27 enforcement personnel have a clear and unobstructed view of the interior of the premises, including the 28 area in which the cash registers are maintained, from the exterior public sidewalk or entrance. 13 S:\PLANNING\PC Staff Reports\2010\07.28.10\7-21-10 Draft Ordinance Deemed Approved.doc 7/21/10 CITY ATTORNEY DRAFT I SECTION IX—APPEALS FROM A DETERMINATION ON AN APPLICATION FOR I PERMIT 3 Any applicant or other person aggrieved by a decision of the Planning Commission on an application for a Conditional Use Permit required by this Article may appeal the decision to the Mayor a and Common Council pursuant to Development Code Chapter 19.52. SECTION X—GROUNDS FOR CONDITIONAL USE PERMIT SUSPENSION OR e REVOCATION 7 An alcoholic beverage sales activity establishment Conditional Use Permit may be suspended by 8 the Planning Commission for up to one year or revoked after a noticed public hearing held pursuant to Development Code Chapter 19.52, for failure to comply with Operational Standards, training 9 requirements or conditions imposed through the Conditional Use Permit. 10 Notice of intention to suspend or revoke shall be in writing and shall state the grounds therefore. I I Notice shall be mailed by U.S. First-Class Mail and Certified Mail Return Receipt Requested at least 10 days before the date of the hearing. 12 SECTION XI —INVESTIGATIVE PROCEDURES OF POTENTIAL VIOLATION OF 13 CONDITIONS OF APPROVAL Ia The City shall appoint an Administrative Hearing Officer pursuant to San Bernardino Municipal 15 Code Chapter 9.93, to conduct hearings, make findings and determine whether violations of this Article, including the Operational Standards and Conditions of Approval, as well as whether undue negative 16 impacts or public nuisance activities have occurred, are occurring or are likely to occur in the future. 17 The assigned Administrative Hearing Officer shall exercise all powers relating to the conduct of the administrative hearing pursuant to San Bernardino Municipal Code Chapter 9.93. 18 Upon the City's receipt of a complaint from the public, Police Department, City official or any other interested person that a Conditional Use Permit activity is in violation of the Operational Standards 20 and/or Conditions of Approval set forth in this Article, the following procedure shall be followed: 21 (A) A City Enforcement Officer(any Police Officer or other City Enforcement Officer as listed 22 in San Bernardino Municipal Code Chapter 9.93) shall assess the nature of the complaint and its validity by conducting an on-site observation and inspection of the premises to assess the activity's compliance 23 with Operational Standards and/or Conditions of Approval. '-a (B) If the Enforcement Officer determines that the activity is in violation of the Operational Standards and/or Conditions of Approval, the Enforcement Officer may issue an Administrative Citation or an Administrative Civil Penalties Notice, which then may be subject to a hearing by the 26 Administrative Hearing Officer pursuant to San Bernardino Municipal Code Chapter 9.92 or 9.93 27 (C) The Administrative Hearing Officer shall determine whether the activity is in compliance 28 with the operational standards and/or Conditions of Approval. Based on this determination, the Hearing Officer may continue the Conditional Use permit status for the use in question, may impose 14 S:'BLANNINGTC Siaff Reports\2010\07.28.10\7-2 1-10 Draft Ordinance Deemed Approved.doc 7/21/10 CITY ATTORNEY DRAFT Administrative Civil Penalties pursuant to San Bernardino Municipal Code Chapter 9.93 for violations of the Operational Standards and/or Conditions of Approval or may recommend that the Planning Commission revoke the activity's Conditional Use Permit. If the Hearing Officer determines instead to 3 impose further, new conditions on the activity, such conditions shall be based upon the information then before the Hearing Officer. In reaching a determination as to whether a use has violated the Operational 4 Standards or Conditions of Approval, or as to the appropriateness of imposing additional or amended 5 conditions on a use, recommending suspension or revocation of a use, assessing administrative penalties, or the amount of Administrative Civil Penalties to assess, the Hearing Officer may consider: 6 1. The length of time the activity has been out of compliance with the 7 Operational Standards and/or Conditions of Approval. s 2. The impact of the violation of the Operational Standards and/or 9 Conditions of Approval on the community. 10 3. Any information regarding the owner of the activity's efforts to remedy I I the violation of the operational standards and/or Conditions of Approval. 12 (D) "Efforts to Remedy" shall include, but are not limited to: 13 1. Timely calls to the Police Department that are placed by the owner of the Deemed 14 Approved activity, his or her employees, or agents. 15 2. Requesting that those persons engaging in activities causing violations of the Operational Standards and or Conditions of Approval cease those activities, unless the owner of the 16 activity, or his or her employees or agents feels that their personal safety would be threatened in making 17 that request. 18 3. Making improvements to the activity's property or operations, including but not limited 19 to the installation of lighting sufficient to illuminate the area within the use's property line, the installation of security cameras, the clearing of window obstructions, the cleaning of sidewalks and the 20 abatement of graffiti within three days. 21 (E) If in the judgment of the Administrative Hearing Officer, the operations of the owner of the 11 activity constitute a nuisance, the owner is unable or unwilling to abate the nuisance and the nuisance is shown to be a threat to the public health and safety of the surrounding neighborhood, the Hearing 23 Officer may recommend that the Planning Commission suspend or revoke the activity's Conditional Use permit. All determinations, decisions, and conditions made or imposed regarding the use of a activity 24 shall run with the land. +S (F) The decision of the Administrative Hearing Officer shall become final and conclusive and 26 shall not be subject to appeal to the Mayor and Common Council. Once the decision of the Administrative Hearing Officer becomes final, the time in which judicial review of the decision must be 27 sought shall be governed by California Code of Civil Procedure Section 1094.6, or other applicable 28 State Law. 15 S:TLANNINGPC Staff Repots\2010\07.28.10 7-21-10 Draft Ordinance Deemed Approved.doc 7/21/10 CITY ATTORNEY DRAFT I SECTION XII —APPEAL FROM SUSPENSION OR REVOCATION OF CONDITIONAL USE 2 PERMIT 3 Any applicant or other person aggrieved by a decision of the Planning Commission from a suspension or revocation of a Conditional Use Permit may appeal the decision to the Mayor and 4 Common Council. 5 ARTICLE III—STANDARDS AND PROCEDURES FOR EXISTING DEEMED APPROVED 6 ALCOHOLIC BEVERAGE SALES ACTIVITIES 7 SECTION I —PURPOSE 8 The purposes of these regulations are to protect and promote the public health, safety, comfort, 9 convenience, prosperity and general welfare by requiring that alcoholic beverage sales activities that are legal nonconforming activities to comply with the Deemed Approved performance standards in this o Chapter and to achieve the following objectives: (A) Protect surrounding neighborhoods from the harmful effects attributable to the sale of 12 alcoholic beverages and to minimize the adverse impacts of nonconforming and incompatible uses. 11 (B) Encourage businesses selling alcoholic beverages to operate in a manner that is mutually 14 beneficial to other such businesses and other commercial and civic activities. 15 (C) Provide a mechanism to address problems often associated with the public consumption of alcoholic beverages, such as litter, loitering, graffiti, unruly behavior and escalated noise levels. 16 17 (D) Ensure that businesses selling alcoholic beverages are not the source of undue public nuisances in the community. 18 (E) 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. 20 SECTION II —APPLICABILITY 21 22 The Deemed Approved alcoholic beverage sales regulations shall apply to all alcoholic beverage sales activities for on-site or off-site consumption existing and operating within the City on the effective 23 date of this ordinance. 24 SECTION III —AUTOMATIC DEEMED APPROVED STATUS 2s All Alcoholic Beverage Sales Commercial Activities that were Legal Nonconforming Activities, 26 on the effective date of this ordinance, whether or not previously granted a Conditional Use Permit by the City, shall automatically become Deemed Approved Activities as of the effective date of this 27 ordinance and shall no longer be considered Legal Nonconforming Activities. 28 16 S:\PLANNING\PC Staff Reports\2010\07.28.10\7-21-10 Draft Ordinance Deemed Approved.doc 7/21/10 CITY ATTORNEY DRAFT Each deemed approved activity shall retain its Deemed Approved status as long as it complies with the performance standards of this ordinance. 3 The occurrence of any of the following shall terminate the Deemed Approved status of the alcoholic beverage sales activity after notice and a hearing in accordance with Section VI below, and 4 require the issuance of a Conditional Use Permit in order to continue the alcoholic beverage sales 5 activity: 6 (A)An existing alcoholic beverage sales activity changes its activity so that ABC requires a different type of license. 8 (B) There is a substantial modification to the mode or character of operation. 9 (C) As used herein, the phrase"substantial change of mode or character of operation" includes but is not be limited to the following: 10 11 1. The off-site alcoholic beverage sales activity establishment increases the floor or land area or shelf space devoted to the display or sales of any alcoholic beverage. 1'- 2. The on-site alcoholic beverage sales activity establishment increases the floor or land 13 area or shelf space devoted to the display, sales or service of any alcoholic beverage. 14 3. The off-site or on-site alcoholic beverage sales activity establishment expands the sale 15 or service of any alcoholic beverages and/or increases the number of customer seats primarily devoted to 16 the sale or service of any alcoholic beverages. 17 4. The off-site or on-site alcoholic beverage sales activity establishment extends the hours of operation. 18 19 5. The alcoholic beverage sales activity establishment proposes to reinstate alcohol sales after the ABC license has been either revoked or suspended for a period 90 days or greater by ABC. 20 6. The alcoholic beverage sales activity voluntarily discontinues active operation for 21 more than 90 consecutive days or ceases to be licensed by the ABC. -- (D) A substantial change in the mode of character of operation shall not include: 23 1. Re-establishment, restoration or repair of an existing alcoholic beverage sales activity 24 on the same premises after the premises have been rendered totally or partially inaccessible by a riot, 25 insurrection, toxic accident or act of God, provided that the re-establishment, restoration or repair does not increase the sales or service of any alcoholic beverage, extend the hours of operation of any 20 establishment or add to the capacity, floor or land area or shelf space devoted to alcoholic beverages of any establishment that sells or serves any alcoholic beverages. 27 28 2. Temporary closure for not more than ninety days in cases of vacation or illness or for purposes of repair, renovation, or remodeling if that repair, renovation, or remodeling does not change 17 SAPLANNING\PC Staff Reports\2010\07.28.1017-21-10 Draft Ordinance Deemed Approved.doc 7/21/10 CITY ATTORNEY DRAFT the nature of the premises and does not increase the sales or service of any alcoholic beverage, extend the hours of operation of any establishment, or add to the capacity, floor or land area, or shelf space devoted to alcoholic beverages of any establishment that sells or serves any alcoholic beverages. 3 (E) Discontinuance. Once it is determined by the City that there has been a discontinuance of 4 active operation for 90 consecutive days or a cessation of ABC licensing, it may be resumed only upon the granting of a Conditional Use Permit as provided in Article II. The property owner shall be notified by the City of the termination of the Deemed Approved status and shall be informed of the property G owner's right to appeal the City's decision to the Administrative Hearing Officer. 7 SECTION IV—DEEMED APPROVED PERFORMANCE STANDARDS s The provisions of this section shall be known as the Deemed Approved performance standards. 9 The purpose of these standards is to control dangerous or objectionable environmental effects of alcoholic beverage sales activities. These standards shall apply to all Deemed Approved alcoholic 10 beverage sales activities that hold Deemed Approved status pursuant to this Article. II An alcoholic beverage sales activity("Alcohol Outlet") shall retain its Deemed Approved status 12 only if it conforms to all of the following Deemed Approved performance standards: 13 (A) The Alcohol Outlet shall not cause adverse effects to the health, peace or safety of persons 14 residing or working in the surrounding area. 15 (B) The Alcohol Outlet shall not jeopardize or endanger the public health or safety of persons IG residing or working in the surrounding area. 17 (C) The Alcohol Outlet shall not allow repeated nuisance activities within the premises or in close proximity of the premises, including but not limited to disturbance of the peace, illegal drug Is activity,public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, sale of 19 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 20 violations, curfew violations, or lewd conduct. 21 (D) The Alcohol Outlet shall comply with all provisions of local, state or federal laws, 11 regulations or orders, including but not limited to those of the ABC, California Business and Professions Code §§ 24200, 24200.6, and 25612.5, as well as any condition imposed on any permits issued pursuant 23 to applicable laws, regulations or orders. This includes compliance with annual City business registration fees and annual use permit fees. 24 25 (E) The Alcohol Outlet's upkeep and operating characteristics shall be compatible with and not adversely affect the livability or appropriate development of abutting properties and the surrounding 26 neighborhood. 27 (F)All alcohol beverage sales activities shall pay an annual use permit fee in order to defray the 28 expense to the City for the Outreach and Education Program and Monitoring and Enforcement Activities. A copy of these performance standards, any applicable ABC or City operating conditions, 18 S:IPLANNING\PC Staff Reports\2010\07.28.10,7-21-10 Draft Ordinance Deemed Approved.doc 7/21/10 CITY ATTORNEY DRAFT and any training requirements shall be posted in at least one prominent place within the interior of the establishment where it will be readily visible and legible to the employees and patrons of the establishment. 3 (G)The owners and all employees of the alcohol beverage sales establishment involved in the 4 sale of alcoholic beverages shall complete an approved course in "Responsible Beverage Sales" 5 (RBS) within 60 days of hire for employees hired after the passage of this ordinance or within six months of the passage of this ordinance for existing employees. To satisfy this requirement, a 6 certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service (CCC/RBS) or other certifying/licensing body designated by the 7 State of California. s 9 SECTION V—NOTIFICATION TO OWNERS OF ESTABLISHMENTS CONDUCTING DEEMED APPROVED ACTIVITIES Ill I I The City's Community Development Department shall notify the owner of each Deemed Approved activity, and also, if not the same, any property owner at the address shown on the City's 12 property tax assessment records, of the activity's Deemed Approved status. The notice shall be sent by U.S. First Class Mail and Certified Mail Return Receipt Requested and shall include a copy of the 13 performance standards in this Article with the requirement that they be posted in a conspicuous and 14 unobstructed place visible from the entrance of the establishment for public review. This notice shall also provide that the activity is required to comply with all performance standards, that a review fee is 15 required and that the activity is required to comply with all other aspects of the Deemed Approved regulations. Should the notice be returned, then the notice shall be sent via regular U.S. Mail. Failure of 16 any person to receive notice given pursuant to this Article shall not affect the Deemed Approved status 17 of the activity. Is SECTION VI - DEEMED APPROVED STATUS PROCEDURES 19 The City shall appoint an Administrative Hearing Officer pursuant to San Bernardino Municipal 20 Code Chapter 9.93 to conduct hearings, make findings and determine whether violations of this Article, including the Deemed Approved performance standards, Conditions of Approval, undue negative 21 impacts or public nuisance activity, have occurred, are occurring, or are likely to occur in the future. The 19 assigned Administrative Hearing Officer shall exercise all powers relating to the conduct of the administrative hearing pursuant to San Bernardino Municipal Code Chapter 9.93. 23 Upon the City's receipt of a complaint from the public, Police Department, City official or any 24 other interested person that a Deemed Approved use is in violation of the performance standards set 25 forth in this Article, the following procedure shall be followed: 26 (A) A City Enforcement Officer shall assess the nature of the complaint and its validity by conducting an on-site observation and inspection of the premises to assess the activity's compliance with 27 performance standards. 28 19 S:\PLANNINGTC Staff Reports\2010\07.28.10\7-21-10 Draft Ordinance Deemed Apprmed.doc 7/21/10 CITY ATTORNEY DRAFT I (B) If the Enforcement Officer determines that the Deemed Approved activity is in violation of I the performance standards, the Enforcement Officer may issue an Administrative Citation or an Administrative Civil Penalties Notice, which then may be subject to a hearing by the Administrative 3 Hearing Officer pursuant to San Bernardino Municipal Code Chapters 9.92 or 9.93. 4 (C) The Administrative Hearing Officer shall determine whether the Deemed Approved activity 5 is incompliance with the performance standards. Based on this determination,the Hearing Officer may continue the Deemed Approved status for the use in question, may impose Administrative Civil 6 Penalties for violations of the performance standards pursuant to San Bernardino Municipal Code Chapter 9.93, may impose such reasonable conditions, including but not limited to the conditions listed 7 in Article II, Section VIII above, as are in the judgment of the Hearing Officer necessary to ensure 8 compliance with the performance standards and may suspend or revoke the Deemed Approved activity's Deemed Approved status. If the Hearing Officer determines instead to impose further, new conditions 9 on the Deemed Approved activity, such conditions shall be based upon the information then before the Hearing Officer. In reaching a determination as to whether a use has violated the performance standards, 10 or as to the appropriateness of imposing additional or amended conditions on a use, suspending or revoking a use, assessing Administrative Civil Penalties, or the amount of Administrative Civil Penalties to assess, the Hearing Officer may consider: 12 1. The length of time the Deemed Approved activity has been out of compliance with the 13 performance standards. 14 2. The impact of the violation of the performance standard(s) on the community. 15 3. Any information regarding the owner of the Deemed Approved activity's efforts to 16 remedy the violation of the performance standard(s). 17 (D) `Efforts to Remedy" shall include, but are not limited to: 18 1. Timely calls to the Police Department that are placed by the owner of the Deemed Approved activity, his or her employees, or agents. 20 2. Requesting that those persons engaging in activities causing violations of the 21 performance standard(s) cease those activities, unless the owner of the Deemed Approved activity, or his 22 or her employees or agents feels that their personal safety would be threatened in making that request. 23 3. Making improvements to the Deemed Approved activity's property or operations, including but not limited to the installation of lighting sufficient to illuminate the area within the use's 24 property line, the installation of security cameras, clear unobstructed windows, clean sidewalks and 25 graffiti abated within three days. 2e (E) If in the judgment of the Administrative Hearing Officer, the operations of the owner of the deemed Approved activity constitute a nuisance, the owner is unable to abate the nuisance and the 27 nuisance is shown to be a threat to the public health and safety of the surrounding neighborhood, the 28 Hearing Officer may suspend or revoke the activity's Deemed Approved status. Any continued operation of the business shall require a Conditional Use Permit approved by the Planning Commission. 20 SAPLANNING\PC Staff Reports\2010\07.28.10\7-21-10 Draft Ordinance Deemed ApprovedAm 7/21/10 CITY ATTORNEY DRAFT All determinations, decisions, and conditions made or imposed regarding the use of a Deemed Approved activity shall run with the land. (F) The decision of the Administrative Hearing Officer shall become final and conclusive and shall not be subject to appeal to the Mayor and Common Council. Once the decision of the 4 Administrative Hearing Officer becomes final as provided in this Chapter, the time in which judicial 5 review of the decision must be sought shall be governed by California Code of Civil Procedure Section 1094.6, or other applicable State Law. 6 ARTICLE IV - ALCOHOLIC BEVERAGE SALES ACTIVITY FEES AND PENALTIES 7 8 SECTION 1 —ANNUAL PERMIT FEES 9 (A.)The Mayor and Common Council shall establish by resolution an annual use permit fee that shall be imposed on each alcoholic beverage establishment issued a use permit pursuant to the 10 provisions of this ordinance, including any new or modified establishment or deemed approved I establishment issued a permit pursuant to this ordinance. The annual use permit fee shall be assessed for each alcoholic beverage establishment on a sliding scale based on: 12 13 (1) The hours of operation that alcohol is sold at the establishment. 14 (2) The volume of alcohol sales at the establishment. 15 (3) The number of police calls for service at the establishment. 16 (4) The estimated annual costs of the police services necessary to monitor and enforce the 17 operational standards and other use permit conditions and requirements for all establishments within that license category. 18 19 (5) The estimated staff costs to bill and collect the annual permit fee. 20 (B) Billing and Payment: All annual permit fees imposed on an alcoholic beverage establishment operating under a use permit issued in the manner provided for by this ordinance 21 including Deemed Approved establishments shall be billed by the City Clerk's Office on or before the 1 st day of January of each year. The fee is due and payable immediately upon receipt, and will be delinquent if not paid within 30 days of the bill's mailing. 23 (C) Establishment of Alcohol Permit Fee Account: 24 (1) The City shall establish an "Alcohol Permit Fee Account" for the collection of the fees 25 described in this ordinance. 26 (2) Funds from the "Alcohol Permit Fee Account" shall be used only to recover the cost of the services including education, inspections, enforcement operations and administrative hearings, related to 27 the monitoring and enforcement of the performance standards, conditions of operation and regulations 28 established for licensed alcohol establishments in this ordinance. 21 S:\PLANNING\PC Staff Reports\2010\07.28.10\7-21-10 Draft Ordinance Deemed Approved.doc 7/21/10 CITY ATTORNEY DRAFT I (D) Report of expenditure of fees to be collected: (1) Not later than the last meeting of October in each calendar year, the Administrative Hearing 3 Officer shall submit to the Mayor and Common Council a report on the expenditures of the total of annual alcohol permit fees collected. 4 5 (2) The report shall set forth such matters as: G a. The prioritization of problems regarding enforcement of the performance standards, conditions and regulations as set forth in this ordinance related to the operation of 7 licensed alcohol establishments in the City. s b. Methods of mitigating such problems, through prevention, education and enforcement e of the performance standards, conditions andregulations. 10 c. The specific allocation of the fees to be collected to activities described in the report. I SECTION 11 —PENALTIES 12 (A) Any person who violates, causes or permits another person to violate any provision of this 13 ordinance is guilty of either an infraction or misdemeanor. Any person convicted of either an infraction 14 or misdemeanor under the provision of this ordinance shall be punished by a fine, imprisonment or both according to Chapter 1.12 of the San Bernardino Municipal Code. 15 16 (B) Separate Offenses for Each Day: Any violator shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of these regulations is 17 committed, continued, permitted, or caused by such violator and shall be punishable accordingly. 18 (C) Any Violation a Public Nuisance: In addition to the penalties provided in this section, any 19 use or condition caused or permitted to exist in violation of any of the provisions of these regulations shall be and is declared to be a public nuisance and may be abated as such by the City. 20 (D) Injunction as Additional Remedy: Any violation of any provision of these regulations shall 21 be and is declared to be contrary to the public interest and shall at the discretion of the City, create a 17 cause of action for injunctive relief. 23 (E) Administrative Civil Penalties: In addition to any other penalties provided in this section, $1,000.00 in Administrative Civil Penalties shall be imposed for each and every offense and for each 24 and every day during any portion of which any violation of any provision of these regulations is 25 committed, continued, permitted, or caused by such violator: 26 (F) The City shall bill all persons liable for these Administrative Civil Penalties by mail showing the itemized cost of such chargeable service and requesting payment. Payment of the penalties shall be 27 due within thin 30 days of the date of the bill is deposited in the Mail. If full a y y p payment is not received 28 within the required time for payment the bill will be delinquent and all persons liable for the penalties shall be charged interest at the maximum legal rate from the date the payment period expires and a 22 S:'BLANNINGTC Staff Reports\2010\07.28.10\7-21-10 Draft Ordinance Deemed Approved.doc 7/21/10 CITY ATTORNEY DRAFT 1 further civil penalty in the amount of$100.00 per day. The delinquent costs may be placed as a lien against the property or collected by the City in any manner authorized bylaw and are recoverable in a 2 civil action filed by the City in a court of competent jurisdiction. 3 (G) Liability for Expenses: In addition to the punishment provided by law a violator is liable for 4 such costs expenses and disbursements paid or incurred by the City or any of its contractors 5 in correction abatement and prosecution of the violation. Re-inspection fees to ascertain compliance with previously noticed or cited violations shall be charged against the owner of 6 the establishment conducting the Deemed Approved Activity or owner of the property where the establishment is located. The Enforcement Officer shall give the owner or other 7 responsible party of such affected premises a written notice showing the itemized cost of 8 such chargeable service and requesting payment thereof. Should the bill not be paid in the required time, the charges shall be placed as a lien against the property. 9 SECTION 2. This Ordinance is based upon the recitals and findings set forth above, and the 10 accompanying Staff Report and its attachments to this Ordinance, and is adopted pursuant to the I I authority granted to the City of San Bernardino in Article 11, Section 7 of the California Constitution, and Section 40(z) of the Charter of the City of San Bernardino. 12 SECTION 3. Compliance with the California Environmental Quality Act: The Mayor and Common 13 Council finds that this Ordinance is not subject to the California Environmental Quality Act(CEQA) 14 pursuant to Sections 15061(b)(3) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in 15 Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it 16 has no potential for resulting in physical change to the environment, directly or indirectly. 17 SECTION 4. Severabilitv: If any section, subsection, subdivision, sentence, or clause or phrase in this Ordinance or any part thereof is for any reason held to be unconstitutional, invalid or ineffective by any 18 court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The Mayor and Common Council hereby declares that it would have adopted each section irrespective of the fact that any one or more 20 subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid, or ineffective. 21 23 24 25 26 '7 28 23 S:\PLANNING\PC Staff Reports12010\07.28.10\7-21-10 Draft Ordinance Deemed Approved.doc 7/21/10 CITY ATTORNEY DRAFT I , AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SAN BERNARDINO MUNICIPAL CODE SECTION 19.06.030(2)(B) (DEVELOPMENT CODE) REQUIRING A 3 CONDITIONAL USE PERMIT FOR NEW ALCOHOLIC BEVERAGE SALES ACTIVITIES AND ESTABLISHING AUTOMATIC DEEMED APPROVED STATUS FOR LEGAL 4 NONCONFORMING ACTIVITIES. 5 1 HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and Council 6 of the City of San Bernardino at a meeting thereof, held on the day of ,2010, by the following vote, to wit: 7 8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 9 MARQUEZ DESJARDINS II BRINKER 12 SHORETT 13 14 KELLEY 15 JOHNSON 16 MC CAMMACK 17 18 Rachel Clark, City Clerk 20 The foregoing Ordinance is hereby approved this day of 2010. 21 PATRICK J. MORRIS, Mayor 23 City of San Bernardino 24 Approved as to form: 25 JAMES F. PENMAN 26 City Attorney 27 28 24 S:\PLANNING\PC Staff Reports\2010\07.28.10\7-21-10 Draft Ordinance Deemed Approved.doc ATTACHMENT g 7/21/10 CITY ATTORNEY DRAFT I ORDINANCE NO. 2 AN URGENCY--ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING 3 SAN BERNARDINO MUNICIPAL CODE SECTION 19.06.030(2)(B) (DEVELOPMENT CODE) REQUIRING A CONDITIONAL USE PERMIT FOR NEW ALCOHOLIC BEVERAGE SALES 4 ACTIVITIES AND ESTABLISHING AUTOMATIC DEEMED APPROVED STATUS FOR LEGAL NONCONFORMING ACTIVITIES DUC aRING THE URGENCV THEREOFAND 5 TAKING EFFECT IMMEDIATELV. 6 7 The Mayor and Common Council of the City of San Bernardino do ordain as follows: s WHEREAS, Section 40(z)of the City Charter vests the Mayor and Common Council with the power to make and enforce all laws and regulations with respect to municipal affairs, subject only to the 9 restrictions and limitations provided in the Charter or by State law; and 10 11 vain of the C- 't. a peace, health, or sa", if passed b5 a PA'S thiFd's 12 1713) 13 WHEREAS,research shows that areas with greater densities of on-site and off-site alcohol outlets also generally have higher rates of motor vehicle crashes,alcohol-related hospital admissions, 14 pedestrian injury collisions, self-reported injury and drinking and driving among both young people and adults; and 15 16 WHEREAS,the relationship between alcohol outlet density and violent crime has been well documented; communities with 100 or more alcohol outlets and a population of 50,000 or more can 17 expect an annual increase of 2.5 violent crimes each year for every alcohol outlet added in the area; and Is WHEREAS, drunk driving arrests often take place at night, as bars are closing and highways 19 become crowded with patrons who have been drinking; and 20 WHEREAS, studies indicate the rate of alcohol-related crashes can be reduced by responsible beverage service training programs, but the level of risk still is high when outlet density exceeds the 21 acceptable levels of saturation; and 22 WHEREAS,nuisance and criminal activities such as drug dealing, public drunkenness, loitering 23 and other behaviors that negatively impact neighborhoods occur with disproportionate frequency at and 24 around the premises of on-site and off-site sale alcohol uses; and 25 WHEREAS, neighborhood character can change over time and the careful regulation of nuisance activity by on-site and off-site alcohol uses will help to ensure that such uses do not contribute 26 to the deterioration of neighborhoods; and 27 WHEREAS, the citizens of the City of San Bernardino have complained to the San Bernardino 28 Police Department about said nuisance and criminal activities; and 1 C _,Ducumcnts:md Seuines-rahhal tc\I o-al Senings IemVor4a ntemet Piles\C'omentoutl k\PP3921(7\7-21-10 Stike\ut Ord' enter Deemed Approve 7/21/10 CITY ATTORNEY DRAFT I WHEREAS,there are many establishments in the City of San Berardino selling alcoholic 2 beverages that do not conform with the Development Code and, as a result, these establishments generate a disproportionate amount of public nuisance service calls for service for the San Bernardino 3 Police Department; and 4 WHEREAS, for the above Feasens alld !hose pfavided during thL hearing an this OfdiHanee, the 5 Mayor and Camfnon Couneil fifld that thefe is a eurrefi4 and immediate&eat tO the fRiblie health, salety, or welfiue, and!hat the approval of any efitiflements &F the establishment aF operation ofon site 6 aF off sate aleehal eutlets Nwuld Fesult in that thFea! to publie health. Safe!5' OF Welfafe. The Mayer and 7 afld Opff8tiOR Of Oft Site OF 09 q4P AIRShAl outlets is neeessai-y for !he immediate pfesen�ation of the 8 public peaee. health I we with the City Chanef Seetions 31 and 124-. 9 WHEREAS, California law does not preempt local land use and zoning regulations with regard to the sale of alcoholic beverages and the authority to regulate nuisance conditions created by state- 10 licensed alcoholic beverage retailers derives from the City's Charter and general law police powers. I WHEREAS,the City of San Bernardino recognizes its responsibility to enforce the law and the 12 need for a partnership with alcoholic beverage sale establishments and the community to address illegal 13 activities in proximity to an alcoholic beverage sales establishment. 14 WHEREAS,the City wishes to require crrtain iw \ c.tt i + " k+r e i3rt 4ert3,ee el-an alcoholic beverage sale establishments to seewrul a in a conditional use permit to lawfully engage in the 15 sale of alcoholic beverages within the City; and 16 WHEREAS,the conditional use permit will require the business owner to comply with 17 operational standards and training requirements as conditions of the conditional use permit; and 18 WHEREAS, the City wishes to designate each lawfully established and existing alcoholic 19 beverage sale business to be"deemed approved"to lawfully engage in the sale of alcoholic beverages and be required to comply with operational standards as conditions to its deemed approved status; and 20 WHEREAS, the California Court of Appeals in City of Oakland, et al. v. Superior Court, et al., 21 45 Cal.App.4" 740(1996) held that a similar"deemed approved"ordinance was not preempted by state 22 laws regulating the sale of alcoholic beverages because the ordinance merely created an administrative mechanism for enforcing nuisance and criminal laws that were applicable to all alcoholic beverage 23 establishments, even those in operation before the ordinance's effective date; and 24 WHEREAS,the Mayor and Common Council, by adopting this ordinance, have no intention to 25 regulate the sale of alcoholic beverages, but merely a desire to create an administrative mechanism applicable to all alcoholic beverage establishments, to address the nuisance and criminal activities 26 described above; and 27 WHEREAS, an annual use permit fee will be imposed on all alcoholic beverage sale 28 establishments in order to provide the revenue necessary to fund the costs incurred by the City to monitor compliance and enforce the conditions of the conditional use permit and the standards for 2 C:'.Ducu1icn(s and Settineslrahhal to\Local Setlingstl"•n oia�Intcmet Ples\Cuntent Outlu uk\PE392ICZ\7-21-IOStrikeuut Ordinancere Dean=d Approved doc _ . 7/21/10 CITY ATTORNEY DRAFT I Deemed Approved businesses, and implement programs that promote responsible policies and practices 2 of businesses engaged in the sale of alcoholic beverages; and 3 WHEREAS, the annual use permit will establish standards of operation for licensed alcoholic beverage sale establishments in order to promote successful business practices compatible with healthy a economic growth, community safety, and quality of life of San Bernardino residents; s NOW,THEREFORE,THE MAYOR ANDCOMMON COUNCIL OF THE CITY OF SAN 6 BERNARDINO DO ORDAIN AS FOLLOWS: 7 SECTION 1. San Bernardino Municipal Code Section 19.06.030(2)(B) (Development Code)is 8 amended to read as follows: 9 Section 19.06.030(2)(B) 10 If ARTICLE I—GENERAL 12 SECTION I—TITLE AND PURPOSE - 13 A. Title: la (1) This ordinance shall be known as the Conditional Use Permit- Deemed Approved Alcoholic 15 Beverage Sales Regulations Ordinance. 16 2 This ordinance ( ) requires land use permits for newly established alcoholic beverage sales 17 activities,confers deemed approved status for existing alcoholic beverage sales activities and provides standards and an administrative hearing process to review violations of those standards in order to 18 protect the general health, safety,and welfare of the residents of the City of San Bernardino and to 19 prevent nuisance activities where alcoholic beverage sales occur. 20 B. Purpose: 21 (1)To protect residential,commercial, industrial and civic areas and minimize the adverse 22 impacts of nonconforming and incompatible uses; and 23 (2) To provide opportunities for alcoholic beverage sales establishments to operate in a mutually za beneficial relationship to each other and to other commercial and civic services; and 25 (3) To provide mechanisms to address problems associated with the public consumption of alcoholic beverages such as litter, loitering, graffiti, unruly behavior and escalated noise levels; and 26 (4) To provide that alcoholic beverage sales establishments are not the source of undue public 27 nuisances in the community; and zs 3 CDocuments and Settinestrahhal le11_ocul Settines�lemporarr lnt•met PI \C me toutl kJlP3921CZ17-21-10 Ordinwice re Deemed Approved do.(;A)aeut iitSatntF Appr�-d L IO pas, 7/21/10 CITY ATTORNEY DRAFT 1 (5) To provide for properly maintained alcoholic beverage sales establishments so that the 2 negative impacts generated by these activities are not harmful to the surrounding environment in any way; and 3 (6) To monitor Deemed Approved establishments to ensure they do not substantially change in 4 mode or character of operation. 5 SECTION II—DEFINITIONS 6 The meaning and construction of these words and phrases,as set forth below, shall apply 7 throughout, except where the context clearly indicates a different meaning or construction. s (A)"Administrator" means the Administrative Hearing Officer as identified in Section III. 9 (B)"Alcoholic Beverage" means alcohol, spirits, liquor, wine, beer, and any liquid or solid 10 containing alcohol, spirits, wine,or beer,that contains one-half of one percent or more of alcohol by I I volume and that is fit for beverage purposes either alone or when diluted, mixed or combined with other substances,the sale of which requires a ABC license. 12 (C)"Alcoholic Beverage Sales Activity"means the retail sale of alcoholic beverages for onsite 13 or offsite consumption. 14 (D) "Alcoholic Beverage Sales Establishment" means an establishment where an alcoholic 15 beverage sales activity occurs. Alcoholic beverage sales establishments include but are not limited to the following recognized types of establishments: liquor stores; beer and wine stores; convenience markets; 16 markets; neighborhood specialty food markets; retail sales establishments; wine shops; service stations; 17 taverns; clubs; cocktail lounges, ballrooms, cabarets,dance bars, piano bars; billiard or game parlors, bowling alleys; nightclubs,dance halls; cafes, bars, restaurants with bars; full-service restaurants; and 18 fast food establishments. 19 (E) "California Department of Alcoholic Beverage Control'or"ABC'refers to the department 20 of the State of California empowered to act pursuant to Article 20, section 22, of the California 21 Constitution and authorized to administer the provisions of the Alcoholic Beverage Control Act. 22 (F)"Conditions of Approval"means a requirement that must be carried out by the activity by: (1)a new alcoholic beverage sales activity to exercise a land use permit; or(2)a legal nonconforming 23 alcoholic beverage sales activity to comply with deemed approved performance standards and to retain its deemed approved status. 24 25 (G)"Deemed Approved Activity"means any Legal Nonconforming alcoholic beverage sales activity, as defined in subsection (J). Such activity shall be considered a Deemed Approved activity as 26 long as it complies with the Deemed Approved Performance Standards set forth in Article III, Section IV. 27 28 4 C:�Uoanuents and SeU nesvahhal toAI,ucal Settinesl'I n p rary Int et File`C t- t Ou11 kFF3921C7V 21 10 Strikeout Ordinance re Deemed.Anoroved.doc ': 0..� . T lden�doe _ 7/21/10 CITY ATTORNEY DRAFT I (H) "Deemed Approved Status"means the permitted use of land for a Deemed Approved 2 Activity. Deemed Approved status replaces Legal Nonconforming status with respect to Alcoholic Beverage Sales Commercial Activity and remains in effect as long as it complies with the Deemed 3 Approved provisions and performance standards. 4 (1)"Illegal Activity"means an activity, which has been finally determined to be in 5 noncompliance with the Deemed Approved provisions and performance standards. Such an activity shall lose its Deemed Approved status and shall no longer he considered a Deemed Approved activity. 6 (.I)"Legal Nonconforming Alcoholic Beverage Sales Commercial Activity"or 7 "Legal Nonconforming Activity"means an Alcoholic Beverage Sales Commercial Activity which was a 8 nonconforming use pursuant to San Bernardino Municipal Code(Development Code) Chapter 19.62, and for which a valid state of California Alcoholic Beverage Control license had been issued and used in 9 the exercise of the rights and privileges conferred by the license at a time immediately prior to the effective date of the Deemed Approved Alcoholic Beverage Sale Regulations Ordinance. Such an 10 activity shall be considered a Deemed Approved Activity and shall no longer be considered a Legal I I Nonconforming Activity. 12 (K)"Off-Sale Alcohol Outlet"means an establishment that conducts retail sales of Alcoholic 13 Beverages for consumption off the premises where sold. 14 (L)"On-Sale Alcohol Outlet"means an establishment that conducts retail sales of Alcoholic Beverages for consumption on the premises where sold. 15 16 (M) "Operational Standards"means regulations for the business practice activities and land use for locations with a Conditional Use Permit or those further requirements imposed to achieve these 17 goals. Operational Standards constitute requirements which must be complied with by an establishment in order to maintain its Conditional Use Permit. 18 19 (N)"Performance Standards"means regulations for the business practice activities and land use for locations with Deemed Approved status or those further requirements imposed to achieve these 20 goals. Performance Standards constitute requirements which must be complied with by an establishment in order to retain its Deemed Approved status. 21 22 (0) "Permit"means a Conditional Use Permit issued pursuant to this ordinance. 23 (P)"Permittee"means the individual or entity that owns an alcoholic beverage sale establishment and to whom a Conditional Use Permit to operate an alcoholic beverage sale 24 establishment has been issued by the City of San Bernardino. 25 (Q)"Premises"means the actual space within a building devoted to alcoholic beverage sales. 26 u> Restaul.mt" anti' means a huna fide eating ulaLe tihuse�r dormant (unction is thr 27 . ier Of Inud and t%here on-site sale ofalco eragcti is utcidental ur secondan. 28 5 C:\Documents and Seltines\rahhal te`Localse(tines�letnotr Intem-tI`ilcs\contcot Out look\1't'392IC%\7-,21-10Strikeout Ordinancere Deemed Aonrovtxt.doc ': 7/21/10 CITY ATTORNEY DRAFT I SECTION III—ADMINISTRATIVE HEARING OFFICER 2 The "Administrative Hearin Officer"shall have the same appointment ppointment and qualifications as that 3 designated in San Bernardino Municipal Code Chapter 9.93, Administrative Civil Penalties; and shall conduct public hearings and make recommendations intended to encourage and achieve the compliance 4 of particular alcoholic beverage sale establishments with the provisions of this Ordinance. This section 5 is not intended to restrict the powers and duties otherwise pertaining to other City officers or bodies in the field of monitoring and ensuring the harmony of alcoholic beverage sale activities in the City. The 6 Administrative Hearing Officers shall have the powers and duties assigned to them by the Development 7 Code, and other San Bernardino Municipal Code ordinances. 8 SECTION IV-INSPECTION AND RIGHT OF ENTRY 9 The sale of alcoholic beverages is a closely regulated industry. The officials responsible for enforcement of the City Municipal Code or other provisions of the Development Code or their duly 10 authorized representatives may enter on any site or into any structure open to the public for the purpose I I of investigation provided they shall do so in a reasonable manner whenever they have cause to suspect a violation of any provision of this ordinance or whenever necessary to the investigation of violations to 12 the Conditions of Approval or Deemed Approved performance standards prescribed in these regulations. If an owner, occupant or agent refuses permission to enter, inspect or investigate, premises which are not 13 open to the public,the officials or their representatives may seek an inspection warrant under the 14 provisions of California Code of Civil Procedure section 1822.50 et. seq. All such inspections shall be conducted in compliance with the Fourth Amendment to the United States Constitution. 15 SECTION V-SEVERABILITY 16 If any section, subsection, sentence,clause or phrase of this ordinance is for any reason held to be 17 invalid, such decision shall not affect the validity of the remaining portions of this ordinance. The Mayor and Common Council hereby declare that it would have adopted the ordinance and each section, Is subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more of the 19 sections subsections, sentences, clauses or phrases may be declared invalid. 20 ARTICLE II—CONDITIONAL USE PERMITS FOR NEW ALCOHOLIC BEVERAGE SALES ACTIVITIES 21 22 SECTION 1—PURPOSE 23 The general purposes of these regulations are to protect and promote the public health, safety, comfort, convenience, prosperity and general welfare by requiring consideration and approval of a 24 Conditional Use Permit before a new alcoholic beverage sales activity will be permitted in any land use 25 zoning district of the City and by requiring all new alcoholic beverage sales activities to comply with the operational standards in this ordinance and to achieve the following objectives: 26 (A)Protect surrounding neighborhoods from the harmful effects attributable to the sale of 27 alcoholic beverages and to minimize the adverse impacts of nonconforming and incompatible uses. 2s 6 Documents and Settings\rahhal te'Local Settings,I en oran Intemet I iles\Content Outlook\FP3921C%V-21-10 Strikeout Ordinwee re Deem td Aoomved d 7/21/10 CITY ATTORNEY DRAFT 1 (B) Encourage businesses selling alcoholic beverages to operate in a manner that is mutually 2 beneficial to other such businesses and other commercial and civic activities. 3 (C) Provide a mechanism to address problems often associated with the public consumption of 4 alcoholic beverages, such as litter, loitering, graffiti, unruly behavior and escalated noise levels. 5 (D)Ensure that businesses selling alcoholic beverages are not the source of undue public G nuisances in the community. 7 (E)Ensure that sites where alcoholic beverages are sold are properly maintained so that negative B impacts generated by these activities are not harmful to the surrounding environment in any way. 9 This Article alone does not allow or permit alcoholic beverage sales activities, but only applies to these activities where otherwise allowed or permitted within an involved applicable land use zoning 10 district. This Article does not authorize alcoholic beverage sales activities in any land use district where I I they are not otherwise allowed or permitted by the applicable involved zoning district's regulations. 12 The provisions of this ordinance are intended to compliment the State of California alcohol- related laws. The city does not intend to replace or usurp any powers vested in the California 13 Department of Alcoholic Beverage Control. 14 SECTION 11—REQUIREMENT 15 Notwithstanding any other provisions of this Code, no new on-site or off-site alcoholic beverage 16 sales activity may be established unless a Conditional Use Permit is first obtained in accordance with the 17 requirements of this Article. I he following uses are c\empt from this requirement tp obtain u 1s 19 (A) Sit-down restaurants whose predominant function is the service of food and where the on-site sale of alcoholic beverages is incidental or secondary. 20 ---- r..m tile Eli Fell!e tr E t t+r t4' m }ti n tl+ r 1 twr E 21 (B) Establishments containing 15,000 square feet or more, including but not limited to 22 supermarkets and drug stores,which do not sell alcoholic beverages as the principal business 23 __ �°. ..,.�• +r<�+rrtJar-r�+ui+ennwtt�+e#ain-u-CliiK»at}-1-14e F'evalii 24 25 (C) Establishments whose applications hwe has been deemed complete prior to the effective 25 date of this Ordinance by the Conlmunitc Development Sep ie-es Department ire 27 n, - 28 (-A)(D)Temporary uses issued a I emportrc License by the California Department of llcoholic lkjcraac Control and established in compfiance v+ith all City laws' and reculations. 7 S:TLANNINGTC Staff R port x2010\07 28 10\7- 1-10 Strikeout Ordinwice re Deemed Aouro,ed docE al[ vrxem�-tard 7/21/10 CITY ATTORNEY DRAFT I SECTION III--6F(:A-U(,144 LOCATION U. RESTRICTIONS 2 3 A new alcoholic beverage sales activity is not permitted xsithin_�00 legit of any of the following locations: 4 -- - ` F1tF f<et "'- %ri:='= a',cr eragesa4es m +pit -.- s - L�1 6 - 7 1. A public or private state licensed or accredited school S — --2. A public park, playground,of recreational area, or youth facility, including a 9 nursery school, preschool, or day-care facility. u ;.d.=A place of worship or religious institution 12 13 4, 4 A hospital 14 5.6-5:An alcohol or other drug abuse recovery or treatment facility 15 6.7E3 A county social service office. 16 __.-_---,C, Within .. ..i.lie F.ffil H.. . ,ti Sifiet ._...:thin 500 - reporting fci.X12 17 e V r*n 't�'t3e r4, wide 18 i,,eation , here the ,,,... t..,.a,.,r� t,,. - —�-Ai-A' T�cmiTEc-�81c-r` c of 19 20 U3 (W_ Establishments containing 15,000 square feet or more, including but not limited 21 to supermarkets and drugstores, which do not sell alcoholic beverages as the principal business are 22 exempt from these locational restrictions. 23 24 �('�.t+t-�l.+M+�� 1 dk,%�n restaurants whose predominant function is the service of food and where 25 the on-site sale of alcoholic beverages is incidental or secondary are exempt from these locational restrictions. An incidental bar or lounge shall be allowed for the convenience of dining patrons. 26 (Establishments which are primarily a bar or lounge or have a bar or lounge area as a principal or independent activity are not included in this exemption.) 27 28 t64 Specialty retail establishments that offer unique product lines or %arivty oof selection not available e ..1.11-1....,.. .6,.. .,..1 -0 I'...... , . is RFtcv=»3 rr-i _ t rketi +x a a„ s C:',Dmuments end Setting,rthhal tc'.h cal ', tling,dcmuomry Intemet Files\Cunt nt r)utluuA 17_3921(Z17-21-10 Strikeout Ordinance re Deemed Aporarcd.dncE-t)IIeUMeRl s xnd-Sett 1-N3 7/21/10 CITY ATTORNEY DRAFT 1 in the ('itv and therefore warranting a finding ol'public com enience or nec_ssity are cwntgt from these locational restrictions. 2 -------- -- —---- 3 (D) 4 5 (E) An automobile service station convenience store that meets the location criteria of Section 19.06.030(2)(1-) matt be exempted from these locational restrictions, subject to evaluation of 6 site-specific conditions through the Conditional Use permit review process and considering recommendations from the police Uet artment. x (F) 1'he following location conditions will be considered in the review of Conditional.(!se 9 permit applications, and may be grounds for denial based on potential adverse effects to the public interest, health. safety or convenience: w 11 1_A location within a crime reporting district, or within X00 feet of a crime reporting 12 district, where the general crime rate exceeds the cite-wide general crime rate by more than 20 percent. 13 A location where the new alcoholic beverage sales activity would be within 500 feet from 14 an existing alcoholic beverage sales activity, or would lead to the grouping of more than 15 tour alcoholic beverage sales activities within a 1.000 foot radius from the new alcoholic beverage sales activity. 16 2. i'f-keR+rA-PA--yjW4 17 18 SECTION IV–OPERATIONAL STANDARDS 19 All new alcoholic beverage sales activities shall be designed, constructed,and operated to zo conform to all of the following operational standards: 21 (A)That it does not result in adverse effects to the health,peace or safety of persons residing or working in the surrounding area. 22 (B)That it does not jeopardize or endanger the public health or safety of persons residing or z3 working in the surrounding area. 24 (C)That it does not result in repeated nuisance activities within the premises or in close 25 proximity of the premises, including but not limited to disturbance of the peace, illegal drug activity, 26 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, 27 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. 28 9 C'Documents and Settims\ruhhal tcTocal Sewnus, I cmyornn Internet Pi1esVCon1en1.0uttwkTL392 I CZV7-21-10 Strikeout ordinance re Deemed Approved.doe 7/21/10 CITY ATTORNEY DRAFT I (D)That it complies with all provisions of local, state or federal laws, regulations or orders, 2 including but not limited to those of the California Department of Alcoholic Beverage Control ("ABC"), California Business and Professions Code §§ 24200,24200.6, and 25612.5, as well as any condition 3 imposed on any permits issued pursuant to applicable laws, regulations or orders. This includes compliance with annual City business registration fees and annual use permit fees. 4 5 (E) That its upkeep and operating characteristics are compatible with,and will not adversely affect the livability or appropriate development of abutting properties and the surrounding 6 neighborhood. 7 (F) That the owners and all employees of the alcohol beverage sales establishment who are 8 involved in the sale of alcoholic beverages complete an approved course in 'Responsible Beverage Sales" (RBS)within sixty (60) days of hire for employees hired after the passage of this ordinance or 9 within 6 months of the passage of this ordinance for existing employees. To satisfy this requirement, a certified program must meet the standards of the Galifemia` oaMinating` Coned on Responsible le 10 ❑e eFag,_ con iee (CCGI BS)k1cohol Beverage Control Responsible Beverage Service Advisor I I or other certifying/licensing body designated by the State of California. 12 (G)That all alcohol beverage sales activities pay an annual fee in order to defray the expense to 13 the City for the Outreach and Education Program and Monitoring and Enforcement Activities. 14 (H) A copy of these operational standards, any applicable ABC or City operating conditions, and any training requirements shall be posted in at least one prominent place within the interior of the 15 establishment where it will be readily visible and legible to the employees and patrons of the establishment. 16 17 SECTION V—ADMINISTRATION 1e The San Bernardino City Planning Commission shall administer Conditional Use Permits. 19 SECTION VI—PERMIT APPLICATION 20 Any person, association, partnership,corporation or other entity desiring to obtain an alcoholic 21 beverage sales activity Conditional Use Permit shall file an application with the City of San Bernardino 22 Community Development Department to forward to the San Bernardino City Planning Commission on a form provided by the City. The application shall he accompanied by a nonrefundable application 23 processing fee in an amount established by a resolution of the Mayor and Common Council. 24 The application for a Conditional Use Permit shall eantaininclude, but not be limited to the 25 following information: 26 (A) The name, address and telephone number of the applicant. If the applicant is a corporation, the applicant shall set forth the name of the corporation exactly as shown in its articles of incorporation. 27 The applicant corporation or partnership shall designate one of its officers or general partners to act as 28 its responsible management officer. 10 i C'..Documctt and Setlin¢s\nahhal to Local Settines [cmw>ran Inlcmct l'i les\Content OutluokIL3921CZ17-2I-10 Strikeout Ordinmeere i Deemed Annrov�d.da. -M-A rFe Dee fed %V PF0-ed.9 ie 7/21/10 CITY ATTORNEY DRAFT 1 (B)The name, address, and telephone number of each lender or share holder with a five percent 2 or more financial interest in the proposed business or any other person to whom a share or percentage of the income of the establishment is to be paid. 3 (C)The name, address, and telephone number of the person who shall manage and operate the 4 establishment for which the permit is requested. 5 (D) The name, address,and telephone number of all existing schools,parks, playgrounds or 6 recreational areas,nonprofit youth facilities, places of worship,hospitals, alcohol or other drug abuse recovery or treatment facilities or county social service offices within 500 feet of the proposed alcoholic 7 beverage sales activity establishment. S (E)The name, address,and telephone number of all alcoholic beverage sale activities within 500 9 feet of the proposed alcoholic beverage sales activity establishment and within a 1000 foot radius from 10 the proposed alcoholic beverage sales activity establishment. I I (F)The name, address, and telephone number of a person authorized to accept service of legal notices. 12 (G) The proposed business name of the alcoholic beverage sales activity establishment and 13 description of all operating aspects of the proposed business. 14 (H)The type of ABC license the applicant is seeking for the alcoholic beverage sales activity 15 establishment. 16 IH lit A plot plan t..the ....,.petty dept eting the 1..eation of the l aWding housing the alcoholie 19 20 {161) Any other information reasonably necessary to accomplish the purposes of this ordinance. 21 22 (6J) The Planning Commission may refer the application to other City departments to determine whether the premises where the alcoholic beverage sales activity establishment will be located, complies 23 with the City's building, health, zoning and fire ordinances or other applicable ordinances or laws. City departments may conduct an inspection of the premises to determine compliance with the ordinances 24 and other laws they administer. City departments may prepare reports summarizing their inspections and 25 recommending whether to approve or deny the application based on their inspections. 26 SECTION VII—ACTION ON PERMIT APPLICATION 27 The Planning Commission shall approve issuance of the Conditional Use Permit to allow a new 28 alcoholic beverage sales activity upon making the following findings: 11 C' Documents mid Scllin ss'\� teALocal SettineAI emnoran Internet FilesAConlenl Outluok'&1'.392 W/1,7-21-10 Strikeout Ordinmtce re (WIRKHOe:e. Ieemed-Afq ddrr� 7/21/10 CITY ATTORNEY DRAFT 1 (A)The proposed alcoholic beverage sales activity establishment is located in a zoning district in 2 which the establishment is a permitted use. 3 (B) A finding of"public convenience and necessity" (Business and Professions Code Section 23958.4(b)(2)), if the activity will be located in an area that has been determined by the state of 4 California Department of Alcoholic Beverage Control to have an undue concentration of licenses as 5 defined in Business and Professions Code Section 23958.4(a). 6 (C) A finding that the alcoholic beverage sales activity will not aggravate existing problems in the neighborhood created by the sale of alcohol such as loitering,public drunkenness,alcoholic 7 beverage sales to minors, noise and littering. 8 (D) The proposed establishment will not detrimentally affect nearby neighborhoods considering 9 the distance of the alcohol establishment to residential buildings, schools,parks, playgrounds or recreational areas, nonprofit youth facilities,places of worship,hospitals,alcohol or other drug abuse 10 recovery or treatment facilities,county social service offices, or other alcoholic beverages sales activity 11 establishments. 12 (E) The proposed establishment will otherwise be compatible with existing and potential uses 13 within the general area. 14 (F)The proposed establishment is not located in what has been determined to be a high-crime area or where a disproportionate number of police service calls occur. 15 (G) The use of the proposed establishment is consistent with the General Plan. 16 17 SECTION VIII—CONDITIONS OF APPROVAL 18 Conditions of Approval that sha44may be imposed include but are not limited to the following: 19 (A) Prohibited Products: To discourage nuisance activities,an Off-Sale Alcohol Outlet sha44may 20 be prohibited from selling one or more of the following products: 21 (1) Wine or distilled spirits in containers of less than 750 milliliters. 22 (2) Malt beverage products with alcohol content greater than five and one-half percent by 23 volume. 24 (3) Wine with an alcoholic content greater than 14 percent by volume unless in corked bottles 25 and aged at least two years. 26 (4) Beer or malt liquor sold individually in containers of 40 ounces or less. 27 (5) Containers of beer or malt liquor not in their original factory packages of six-packs or 28 greater. 12 CA)ocumentS and Settings\rAha] Ic Lt cal Selling..l cm op r:ns l tit crnet l ilesContenLOullatkiFF 3921CZ`.7?1_Ill Strikeuut Ordinanw re Deemed Approved.docr _._.. .c _,..... pq,}�y 7/21/10 CITY ATTORNEY DRAFT 1 (6)Distilled spirits in bottles or containers smaller than 375 milliliters. 2 (7)Cooler products, either wine-or malt beverage-based, in less than four-pack quantities. 3 4 5 Weation d b -. t the . :e.. of the building and r^e_Li es f^v ew . m the StFee. Vegetation faust not a 6 may be FeqUiFed to be planted along!he soundwall to impfoN,e !he appeafanee of the saundwall. 7 /!`\ T L le.. Deffnanew, flans.sable trash feeeptaetes may be .equired tole �--r,a,.r�I�eeepfee._.,. . _. ��- 8 9 and ffom the sidewalk adjaeent to the establishment. The apeFaters of the business also may be requ"Fed 10 II pfopef4y within 250 feet of an) houndafy of its premises. 12 (DB) Pay Telephones: Pay telephones on the site of the establishment mo°• °�, be required to be of the type that only allow outgoing calls and shall be located in 13 a visible and well-lighted location. 14 (€C) Program: A"complaint response community relations"program established and is maintained by the establishment conducting the Deemed Approved Activity may be required. The 16 program may include the following: 17 (1) Posting at the entry of the establishment providing the telephone number for the area commander of the local law enforcement substation to any requesting individual. 18 (2)Coordinating efforts with the police department to monitor community complaints about the 19 establishment activities. 20 (3) Having a representative of the establishment meet with neighbors or the applicable 21 neighborhood association on a regular basis and at their request attempt to resolve any neighborhood 22 complaints regarding the establishment. 23 (FD) Activities, If appropriate the following activities may be prohibited on the premises: pool or billiard tables football or pinball games, arcade style video or electronic games coin-operated 24 amusement devices. 2s (6E) Chilled Alcoholic Beverages: An Off-Sale Alcohol Outlet may be prohibited from 26 maintaining refrigerated or otherwise chilled alcoholic beverages on the premises. 27 (14F) Hours of Operation: In an Off-Sale Alcohol Outlet,the sale of alcoholic beverages may be 28 restricted to certain hours of each day of the week unless limited further by the State of California Department of Alcoholic Beverage Control. 13 CDocuments and Satin s\rahhal le4.oeal Scltin s\I cm ran Intemet I ileskoni ul,Outlook'1119'ICZ 7-21-10 Strikeout ordinance re Deemed ADDmved.da. ': iN- Vrik wey °--,.e..,...,oe.e44eemed OFd mm :'. AtitriAewit 7/21/10 CITY ATTORNEY DRAFT 2 hG Cu s: In Off-Sale Outlets,the sale or distribution to the customer of paper or plastic cups in quantities less than their usual and customary packaging may be prohibited. 3 (M) Signs: The following signs shall be required to be prominently pasted op sted in a readily 4 visible manner on an interior wall or fixture, and not on windows, in English, Spanish and the 5 predominant language of the patrons: 6 (1)"California State Law prohibits the sale of alcoholic beverages to persons under 21 years of age." 7 8 (2) "No Loitering or Public Drinking." 9 (3)"It is illegal to possess an open container of alcohol in the vicinity of this establishment." 10 (KI) Presentation of Documents: A copy of the Conditions of Approval and the I I California Department of Alcoholic Beverage Control license shall be required to be kept on the premises and presented to any haw-City eEnforcement oOfficer or authorized state or county official 12 upon request. 13 (LJ Mitigating Alcohol Related Problems: The establishment shall be required to operate in a 14 manner appropriate with mitigating alcohol related problems that negatively impact those individuals living or working in the neighborhood including but not limited to sales to minors, the congregation of 15 individuals, violence on or near the premises, drunkenness, public urination,solicitation, drug-dealing, 16 drug use, loud noise and litter. 17 (MK) Drug Paraphernalia: An Off-Sale Alcohol Outlet shall be prohibited from selling drug/tobacco paraphernalia products as defined in Health and Safety Code sections 18 11014.5 and 11364.5. "Drug Paraphernalia"means all equipment products and materials of any kind 19 that are used intended for use or designed for use in planting,propagating, cultivating, growing, harvesting,manufacturing, compounding, converting, producing, processing,preparing,testing, 20 analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of the California Uniform 21 Controlled Substances Act commencing with California Health and Safety Code section 11000. 22 (NL) Loitering The establishment's operators or employees shall be required to discourage 23 loiterers and to ask persons loitering longer than fifteen minutes to leave the area and contact local law enforcement officials for enforcement of applicable trespassing and loitering laws if persons requested 24 to leave fail to do so. zs (AM) Security Cameras: At least two 24-hour time lapse security cameras may be required to be 26 installed and properly maintained on the exterior of the building at locations recommended by the Police Department. All criminal and suspicious activities recorded on this surveillance equipment must be 27 reported to local law enforcement. To the extent allowed by law, the establishment operators may be 28 required to provide any tapes or other recording media from the security cameras to the Police Department. [Request Police Dept. input] 14 C\Documentswd Settin syahhal wi-ocal Settin s\I empordn Intemet rilcs\Conlenl.Omlook I 1-1421 C/\7-21-10 Strikeout Ordinance re Demed Aooroved.d _ Deemed 7/21/10 CITY ATTORNEY DRAFT I 2 (PN) Security Guards: An establishment may be required to retain a specified number of security guards. The number of security guards shall vary based upon the specific facts and 3 circumstances of each establishment site and operation. All security guards shall have all required state and City permits and licenses. 4 5 (QO) Prohibited Vegetation: '�o el:xterior vegetation roa+ hull not be planted or maintained that could be used as a hiding place for persons on the premises. Exterior vegetation may be planted and 6 maintained in a manner that minimizes its use as a hiding place. 7 I�Windom Obstructions: No more than of mindoms or clear doors shall hear adx eitisina 8 of am sort, and all advertising ssn-'a-ge_ihaI herlaced and maintained in a manner that ensures that lam enturcementPcrsonnel hate t clear and unobstructed N°iew of the interior of theprenuses. incl the 9 XCc t ill mhich the c Ish te2i tu. 've maintained from the exterior public sidewalk or entrance_ 10 SECTION IX—APPEALS FROM A DETERMINATION ON AN APPLICATION FOR II PERMIT 12 Any applicant or other person aggrieved by a decision of the Planning Commission on an application for a Conditional Use Permit required by this Article may appeal the decision to the Mayor 13 and Common Council pursuant to Development Code Chapter 19.52. 14 SECTION X—GROUNDS FOR CONDITIONAL USE PERMIT SUSPENSION OR 15 REVOCATION 16 An alcoholic beverage sales activity establishment Conditional Use Permit may be suspended by 17 the Planning Commission for up to one year or revoked after a noticed public hearing held pursuant to Development Code Chapter 19.52, for failure to comply with Operational Standards,training IS requirements or conditions imposed through the Conditional Use Permit. 19 Notice of intention to suspend or revoke shall be in writing and shall state the grounds therefore. 20 Notice shall be mailed by U.S. First-Class Mail and Certified Mail Return Receipt Requested at least 10 days before the date of the hearing. 21 22 SECTION XI—INVESTIGATIVE PROCEDURES OF POTENTIAL VIOLATION OF CONDITIONS OF APPROVAL 23 The City shall appoint an Administrative Hearing Officer pursuant to San Bernardino Municipal 24 Code Chapter 9.93, to conduct hearings, make findings and determine whether violations of this Article, 25 including the Operational Standards and Conditions of Approval,as well as whether undue negative impacts or public nuisance activities have occurred, are occurring or are likely to occur in the future. 26 The assigned Administrative Hearing Officer shall exercise all powers relating to the conduct of the 27 administrative hearing pursuant to San Bernardino Municipal Code Chapter 9.93. 28 15 C:'Documents and seltings\rdhhal tevLocal Setwiu. I crnnoram lnterjL 1 ilexVContcnt.Outlook FE3921(/A7.21-10 Str'kcout Ord'tanec re Deemed Annro\ed.doe(--rl9urnmgn[raa&bavtine+.h ___ _ r�{ ng WS11"I N111 ()fd!HftR6@F8l)@@ffl0dAPPFL4' 418 7/21/10 CITY ATTORNEY DRAFT Upon the City's receipt of a complaint from the public, Police Department, City official or any 2 other interested person that a Conditional Use Permit activity is in violation of the Operational Standards and/or Conditions of Approval set forth in this Article, the following procedure shall be followed: 3 (A) A City Enforcement Officer(any Police Officer or other City Enforcement Officer as listed 4 in San Bernardino Municipal Code Chapter 9.93)shall assess the nature of the complaint and its validity 5 by conducting an on-site observation and inspection of the premises to assess the activity's compliance with Operational Standards and/or Conditions of Approval. 6 (B) If the Enforcement Officer determines that the activity is in violation of the Operational 7 Standards and/or Conditions of Approval,the Enforcement Officer may issue an Administrative Citation 8 or an Administrative Civil Penalties Notice, which then may be subject to a hearing by the Administrative Hearing Officer pursuant to San Bernardino Municipal Code Chapter 9.92 or 9.93 9 (C) The Administrative Hearing Officer shall determine whether the activity is in compliance 10 with the operational standards and/or Conditions of Approval. Based on this determination,the Hearing I I Officer may continue the Conditional Use permit status for the use in question,may impose Administrative Civil Penalties pursuant to San Bernardino Municipal Code Chapter 9.93 for violations 12 of the Operational Standards and/or Conditions of Approval or may recommend that the Planning Commission revoke the activity's Conditional Use Permit. If the Hearing Officer determines instead to 13 impose further, new conditions on the activity, such conditions shall be based upon the information then 14 before the Hearing Officer. In reaching a determination as to whether a use has violated the Operational Standards or Conditions of Approval,or as to the appropriateness of imposing additional or amended 15 conditions on a use, recommending suspension or revocation of a use,assessing administrative penalties, 16 or the amount of Administrative Civil Penalties to assess, the Hearing Officer may consider: 17 1. The length of time the activity has been out of compliance with the Operational Standards and/or Conditions of Approval. 18 19 2. The impact of the violation of the Operational Standards and/or Conditions of Approval on the community. 20 3. Any information regarding the owner of the activity's efforts to remedy 21 the violation of the operational standards and/or Conditions of Approval. 22 (_I)) F E)1 "Efforts to Remedy" shall include, but are not limited to: 23 1. Timely calls to the Police Department that are placed by the owner of the Deemed 24 Approved activity, his or her employees, or agents. 25 2. Requesting that those persons engaging in activities causing violations of the 26 Operational Standards and or Conditions of Approval cease those activities, unless the owner of the activity, or his or her employees or agents feels that their personal safety would be threatened in making 27 that request. 28 16 CADocumenis and Scttiner rahhal 161-mal Settin�.l empora Intemet Fi1es',Cun1enl_0ut1ook11F392 I CLO-21-10 Strikeout Ordnance re Deemed Moroved do "NietimeRts ,d SeRin:heimpeno,Mj Waeumenfqg 21 10 StFil _.:_ ___ re-F OFdinaw 7/21/10 CITY ATTORNEY DRAFT 1 3. Making improvements to the activity's property or operations, including but not limited 2 to the installation of lighting sufficient to illuminate the area within the use's property line, the installation of security cameras, clear of n+ Hs c tea window. Obstructions, thr cleanin_ o 3 sidewalks and_th Gti ahaied within three days. 4 (E) If in the judgment of the Administrative Hearing Officer, the operations of the owner of the 5 activity constitute a nuisance, the owner is unable or unwilling to abate the nuisance and the nuisance is shown to be a threat to the public health and safety of the surrounding neighborhood,the Hearing 6 Officer may recommend that the Planning Commission suspend or revoke the activity's Conditional Use permit. All determinations,decisions, and conditions made or imposed regarding the use of a activity 7 shall run with the land. s (F) The decision of the Administrative Hearing Officer shall become final and conclusive and 9 shall not be subject to appeal to the Mayor and Common Council. Once the decision of the Administrative Hearing Officer becomes final, the time in which judicial review of the decision must be 10 sought shall be governed by California Code of Civil Procedure Section 1094.6,or other applicable I I State Law. 12 SECTION XII—APPEAL FROM SUSPENSION OR REVOCATION OF CONDITIONAL USE PERMIT 13 14 Any applicant or other person aggrieved by a decision of the Planning Commission from a suspension or revocation of a Conditional Use Permit may appeal the decision to the Mayor and 15 Common Council. 16 ARTICLE III—STANDARDS AND PROCEDURES FOR EXISTING DEEMED APPROVED 17 ALCOHOLIC BEVERAGE SALES ACTIVITIES 18 SECTION I—PURPOSE 19 The purposes of these regulations are to protect and promote the public health, safety, comfort, 20 convenience,prosperity and general welfare by requiring that alcoholic beverage sales activities that are legal nonconforming activities to comply with the Deemed Approved performance standards in this 21 Chapter and to achieve the following objectives: 22 (A) Protect surrounding neighborhoods from the harmful effects attributable to the sale of 23 alcoholic beverages and to minimize the adverse impacts of nonconforming and incompatible uses. 24 (B)Encourage businesses selling alcoholic beverages to operate in a manner that is mutually 25 beneficial to other such businesses and other commercial and civic activities. 26 (C) Provide a mechanism to address problems often associated with the public consumption of alcoholic beverages, such as litter, loitering, graffiti, unruly behavior and escalated noise levels. n 28 (D) Ensure that businesses selling alcoholic beverages are not the source of undue public nuisances in the community. 17 C:Documents:md Settings\ahhal t ocal Semiw,.I envomr, Inmmei I'iles�content.0utkwkiFC3921C/,q-21-In titrikcout Ordlnaume re Deemed.Approved.dm('114 waxa ml- im.l _ _.. . ._ __ __ .. __ - ikexnFF)Fdix{xr`e-I. ___ 7/21/10 CITY ATTORNEY DRAFT I 2 (E) 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. 3 SECTION II—APPLICABILITY 4 5 The Deemed Approved alcoholic beverage sales regulations shall apply to all alcoholic beverage sales activities for on-site or off-site consumption existing and operating within the City on the effective 6 date of this ordinance. 7 SECTION III—AUTOMATIC DEEMED APPROVED STATUS 8 All Alcoholic Beverage Sales Commercial Activities that were Legal Nonconforming Activities, 9 on the effective date of this ordinance,whether or not previously granted a Conditional Use Permit by the City II I automatically become Deemed Approved Activities as of the effective date of this 10 ordinance and shall no longer be considered Legal Nonconforming Activities. II Each deemed approved activity shall retain its Deemed Approved status as long as it complies 12 with the performance standards of this ordinance. 13 The occurrence of any of the following shall terminate the Deemed Approved status of the 14 alcoholic beverage sales activity after notice and a hearing in accordance with Section VI below, and require the issuance of a Conditional Use Permit in order to continue the alcoholic beverage sales 15 activity: 16 (A)An existing alcoholic beverage sales activity changes its activity so that ABC requires a 17 different type of license. 18 (B)There is a substantial modification to the mode or character of operation. 19 (C)As used herein, the phrase"substantial change of mode or character of operation"includes 20 but is not be limited to the following: 21 1. The off-site alcoholic beverage sales activity establishment increases the floor or land 22 area or shelf space devoted to the display or sales of any alcoholic beverage. 23 2. The on-site alcoholic beverage sales activity establishment increases the floor or land area or shelf space devoted to the display, sales or service of any alcoholic beverage. 24 25 3. The off-site or on-site alcoholic beverage sales activity establishment expands the sale or service of any alcoholic beverages and/or increases the number of customer seats primarily devoted to 26 the sale or service of any alcoholic beverages. 27 4. The off-site or on-site alcoholic beverage sales activity establishment extends the hours 28 of operation. 18 CDocuments and ScuineslrahhaI teV.ocal Settings,I emm,rar, Intcmet h'ilau'oment Oral wkII 1392 1 CZV7-21-10 Strikeout Ordinance re Deemed Ayprowd.do. MOW@-ro-tketnad (),d r SHAEO F0 Pftffled AppF 11 Id F4 16 7/21/10 CITY ATTORNEY DRAFT 1 5. The alcoholic beverage sales activity establishment proposes to reinstate alcohol sales 2 after the ABC license has been either revoked or suspended for a period ^feater a"' s90 days or pry eater by ABC. 3 6. The alcoholic beverage sales activity voluntarily discontinues active operation for 4 more than 90 consecutive days or ceases to be licensed by the ABC. 5 (D)A substantial change in the mode of character of operation shall not include: 6 1. Re-establishment,restoration or repair of an existing alcoholic beverage sales activity 7 on the same premises after the premises have been rendered totally or partially inaccessible by a riot, 8 insurrection, toxic accident or act of God,provided that the re-establishment, restoration or repair does not increase the sales or service of any alcoholic beverage, extend the hours of operation of any 9 establishment or add to the capacity, floor or land area or shelf space devoted to alcoholic beverages of any establishment that sells or serves any alcoholic beverages. 10 11 2. Temporary closure for not more than ninety days in cases of vacation or illness or for purposes of repair,renovation, or remodeling if that repair, renovation, or remodeling does not change 12 the nature of the premises and does not increase the sales or service of any alcoholic beverage, extend the hours of operation of any establishment,or add to the capacity, floor or land area, or shelf space 13 devoted to alcoholic beverages of any establishment that sells or serves any alcoholic beverages. 14 (E) Discontinuance. Once it is determined by the City that there has been a discontinuance of 15 active operation for 90 consecutive days or a cessation of ABC licensing, it may be resumed only upon the granting of a Conditional Use Permit as provided in Article 11. The property owner shall be notified 16 by the City of the termination of the Deemed Approved status and shall be informed of the property 17 owner's right to appeal the City's decision to the Administrative Hearing Officer. 18 SECTION IV—DEEMED APPROVED PERFORMANCE STANDARDS 19 The provisions of this section shall be known as the Deemed Approved performance standards. 20 The purpose of these standards is to control dangerous or objectionable environmental effects of alcoholic beverage sales activities. These standards shall apply to all Deemed Approved alcoholic 21 beverage sales activities that hold Deemed Approved status pursuant to this Article. 22 An alcoholic beverage sales activity("Alcohol Outlet") shall retain its Deemed Approved status 23 only if it conforms to all of the following Deemed Approved performance standards: 24 (A)The Alcohol Outlet shall not cause adverse effects to the health, peace or safety of persons 25 residing or working in the surrounding area. 26 (B)The Alcohol Outlet shall not jeopardize or endanger the public health or safety of persons residing or working in the surrounding area. 27 28 (C)The Alcohol Outlet shall not allow repeated nuisance activities within the premises or in close proximity of the premises, including but not limited to disturbance of the peace, illegal drug 19 C Documents and Scttines\rahhal toAl ocal SeamsV I emoorun_Internet l ilcs(bmcnt.0ullookTf..3921C'ZV-2I-IO Strikmui Ordinance re Deemed Approved doc".'" — - and - -- ' went.--;!-1-+N: OWIRRHO@ FO APPF0 A.& 7/21/10 CITY ATTORNEY DRAFT I activity,public drunkenness,drinking in public, harassment of passersby, gambling, prostitution, sale of 2 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 3 violations,curfew violations, or lewd conduct. 4 (D)The Alcohol Outlet shall comply with all provisions of local, state or federal laws, 5 regulations or orders, including but not limited to those of the ABC,California Business and Professions Code §§ 24200,24200.6, and 25612.5, as well as any condition imposed on any permits issued pursuant 6 to applicable laws, regulations or orders. This includes compliance with annual City business registration fees and annual use permit fees. 7 8 (E)The Alcohol Outlet's upkeep and operating characteristics shall be compatible with and not adversely affect the livability or appropriate development of abutting properties and the surrounding 9 neighborhood. 10 (F)All alcohol beverage sales activities shall pay an annual use permit fee in order to defray the I I expense to the City for the Outreach and Education Program and Monitoring and Enforcement Activities. A copy of these performance standards, any applicable ABC or City operating conditions, 12 and any training requirements shall be posted in at least one prominent place within the interior of the establishment where it will be readily visible and legible to the employees and patrons of the 13 establishment. 14 (G) The owners and all employees of the alcohol beverage sales establishment involved in the 15 sale of alcoholic beverages shall complete an approved course in "Responsible Beverage Sales" RBS) within 60 days of hire for employees hired after the passage of this ordinance or within six months of the 16 passage of this ordinance for existing employees. To satisfy this requirement, a certified program must 17 meet the standards of the California Coordinating Council on Responsible Beverage Service f1CCC/RBS)or other certifying/licensing body designated by the State of California. 18 19 StMus pursuant to this AFtiele shall be pFohibited ffem selling one ar M@Fe of the "I 20 f> s� 21 (1) l iHO OF distilled spirks in eantainefs of lee than 750 '11'1' 22 23 volume. 24 25 beRles and aged at least twe years. 26 (4) BeeF OF malt liquer sold individually in eontainers of 40 ounees of les�i. 27 28 gFeateF. 20 C*`Documenls arld Seu'nedrahhal 101.ocal Settin sg \'l emporar Intemet Files\Content.Oullwk\FE3921CZ'J-21-10 Strikeout Ordinance re 0med Appruved.doe_ ' 7/21/10 CITY ATTORNEY DRAFT 1 (6) Distilled spiFits in bottles OF PORtRiA@1`9 sm-glIeF than 375 milliliters. 2 3 4 5 SECTION V—NOTIFICATION TO OWNERS OF ESTABLISHMENTS CONDUCTING DEEMED APPROVED ACTIVITIES 6 The City's Community Development Department shall notify the owner of each Deemed 7 Approved activity,and also, if not the same, any property owner at the address shown on the City's a property tax assessment records, of the activity's Deemed Approved status. The notice shall be sent by U.S. First Class Mail and Certified Mail Return Receipt Requested and shall include a copy of the 9 performance standards in this Article with the requirement that they be posted in a conspicuous and unobstructed place visible from the entrance of the establishment for public review. This notice shall 10 also provide that the activity is required to comply with all performance standards,that a review fee is I I required and that the activity is required to comply with all other aspects of the Deemed Approved regulations. Should the notice be returned, then the notice shall be sent via regular U.S. Mail. Failure of 12 any person to receive notice given pursuant to this Article shall not affect the Deemed Approved status 13 of the activity. 14 SECTION VI -DEEMED APPROVED STATUS PROCEDURES 15 The City shall appoint an Administrative Hearing Officer pursuant to San Bernardino Municipal Code Chapter 9.93 to conduct hearings, make findings and determine whether violations of this Article, 16 including the Deemed Approved performance standards, Conditions of Approval, undue negative 17 impacts or public nuisance activity, have occurred, are occurring,or are likely to occur in the future. The assigned Administrative Hearing Officer shall exercise all powers relating to the conduct of the 18 administrative hearing pursuant to San Bernardino Municipal Code Chapter 9.93. 19 Upon the City's receipt of a complaint from the public,Police Department, City official or any 20 other interested person that a Deemed Approved use is in violation of the performance standards set forth in this Article,the following procedure shall be followed: 21 22 (A)A City Enforcement Officer shall assess the nature of the complaint and its validity by conducting an on-site observation and inspection of the premises to assess the activity's compliance with 23 performance standards. 24 (B) If the Enforcement Officer determines that the Deemed Approved activity is in violation of 25 the performance standards, the Enforcement Officer may issue an Administrative Citation or an Administrative Civil Penalties Notice,which then may be subject to a hearing by the Administrative 26 Hearing Officer pursuant to San Bernardino Municipal Code Chapters 9.92 or 9.93. 27 (C) The Administrative Hearing Officer shall determine whether the Deemed Approved activity 28 is in compliance with the performance standards. Based on this determination, the Hearing Officer may continue the Deemed Approved status for the use in question, may impose Administrative Civil 21 S:d'LANNINC.PC Staff Reports\2O 10\0 72810\7-21-10 Strikeut Ordinance m Deemed Aoprovcdd�_ -axd QFE[immee Fe .f-W1V1:�1(-1=!'-..e,,.o....e-:fit-2-4u- ' __. _ 7/21/10 CITY ATTORNEY DRAFT I Penalties for violations of the performance standards pursuant to San Bernardino Municipal Code 2 Chapter 9.93,may impose such reasonable conditions. including but not limited to the conditions listed in Article 11. Section VIII above as are in the judgment of the Hearing Officer necessary to ensure 3 compliance with the performance standards and may suspend or revoke the Deemed Approved activity's Deemed Approved status. If the Hearing Officer determines instead to impose further, new conditions 4 on the Deemed Approved activity, such conditions shall be based upon the information then before the 5 Hearing Officer. In reaching a determination as to whether a use has violated the performance standards, or as to the appropriateness of imposing additional or amended conditions on a use, suspending or 6 revoking a use, assessing Administrative Civil Penalties, or the amount of Administrative Civil Penalties to assess,the Hearing Officer may consider: 7 B 1. The length of time the Deemed Approved activity has been out of compliance with the performance standards. 9 2. The impact of the violation of the performance standard(s)on the community. 10 11 3. Any information regarding the owner of the Deemed Approved activity's efforts to remedy the violation of the performance standard(s). 12 13 (D)"Efforts to Remedy" shall include, but are not limited to: 14 1. Timely calls to the Police Department that are placed by the owner of the Deemed Approved activity, his or her employees, or agents. 15 2. Requesting that those persons engaging in activities causing violations of the t6 performance standard(s) cease those activities, unless the owner of the Deemed Approved activity, or his 17 or her employees or agents feels that their personal safety would be threatened in making that request. is 3. Making improvements to the Deemed Approved activity's property or operations, 19 including but not limited to the installation of lighting sufficient to illuminate the area within the use's property line, the installation of security cameras, clear unobstructed windows, clean sidewalks and 20 graffiti abated within three days. 21 (E) If in the judgment of the Administrative Hearing Officer,the operations of the owner of the 22 deemed Approved activity constitute a nuisance, the owner is unable to abate the nuisance and the nuisance is shown to be a threat to the public health and safety of the surrounding neighborhood, the 23 Hearing Officer may suspend or revoke the activity's Deemed Approved status. Any continued operation of the business shall require a Conditional Use Permit approved by the Planning Commission. 24 All determinations, decisions, and conditions made or imposed regarding the use of a Deemed Approved 25 activity shall run with the land. 26 (F) The decision of the Administrative Hearing Officer shall become final and conclusive and shall not be subject to appeal to the Mayor and Common Council. Once the decision of the 27 Administrative Hearing Officer becomes final as provided in this Chapter, the time in which judicial 28 review of the decision must be sought shall be governed by California Code of Civil Procedure Section 1094.6, or other applicable State Law. 22 C: Document,and Settinesvahhal le\Local Se nes%I omporar. Innrim I'tIcs('untenLOutlook+h392 I CZV-21-10 Sir_ktuu Ord in race r_ Dccmcd.Annravcd.doc w MTh+art _ _ _ � 21 n u.'to rat4lydi WOWe fe4)e ...ee.^ _ a, c rcrocw i� w _ nc.. . 7/21/10 CITY ATTORNEY DRAFT 1 2 ARTICLE IV-ALCOHOLIC BEVERAGE SALES ACTIVITY FEES AND PENALTIES 3 SECTION I—ANNUAL PERMIT FEES 4 (A.)The Mayor and Common Council shall establish by resolution an annual use permit fee that 5 shall be imposed on each alcoholic beverage establishment issued a use permit pursuant to the provisions of this ordinance, including any new or modified establishment or deemed approved 6 establishment issued a permit pursuant to this ordinance. The annual use permit fee shall be assessed for each alcoholic beverage establishment on a sliding scale based on: 7 8 (1)The hours of operation that alcohol is sold at the establishment. 9 (2)The volume of alcohol sales at the establishment. 10 (3) The number of police cal ls for service at the establishment. II (4)The estimated annual costs of the police services necessary to monitor and enforce the 12 operational standards and other use permit conditions and requirements for all establishments within that 13 license category. 14 (5)The estimated staff costs to bill and collect the annual permit fee. 15 (B) Billing and Payment: All annual permit fees imposed on an alcoholic beverage establishment operating under a use permit issued in the manner provided for by this ordinance 16 including Deemed Approved establishments shall be billed by the City Clerk's Office on or before the 17 1 st day of January of each year. The fee is due and payable immediately upon receipt, and will be delinquent if not paid within 30 days of the bill's mailing. 18 (C) Establishment of Alcohol Permit Fee Account: 19 (1) The City shall establish an "Alcohol Permit Fee Account" for the collection of the fees 20 described in this ordinance. 21 (2)Funds from the "Alcohol Permit Fee Account" shall be used only to recover the cost of the 22 services including education, inspections, enforcement operations and administrative hearings, related to the monitoring and enforcement of the performance standards, conditions of operation and regulations 23 established for licensed alcohol establishments in this ordinance. 24 (D) Report of expenditure of fees to be collected: 25 (1)Not later than the last meeting of October in each calendar year, the Administrative Hearing 26 Officer shall submit to the Mayor and Common Council a report on the expenditures of the total of annual alcohol permit fees collected. 27 28 (2)The report shall set forth such matters as: 23 CA)ocumenls and Set ines\rahhal le'L.ocal Settings\Iemoora Inlemct Files\Content.Outlook.I'L3921(/ 7-21-10 Strikeout Ordinance re Ah#:dx4-4,-441;.. 7/21/10 CITY ATTORNEY DRAFT a. The prioritization of problems regarding enforcement of the performance standards, 2 conditions and regulations as set forth in this ordinance related to the operation of licensed alcohol establishments in the City. 3 b. Methods of mitigating such problems,through prevention,education and enforcement 4 of the performance standards,conditions andregulations. 5 c. The specific allocation of the fees to be collected to activities described in the report. 6 SECTION II—PENALTIES 7 8 (A) Any person who violates, causes or permits another person to violate any provision of this ordinance is guilty of either an infraction or misdemeanor. Any person convicted of either an infraction 9 or misdemeanor under the provision of this ordinance shall be punished by a fine, imprisonment or both 10 according to Chapter 1.12 of the San Bernardino Municipal Code. I 1 (B) Separate Offenses for Each Day: Any violator shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of these regulations is 12 committed,continued, permitted,or caused by such violator and shall be punishable accordingly. 13 (C) Any Violation a Public Nuisance: In addition to the penalties provided in this section, any 14 use or condition caused or permitted to exist in violation of any of the provisions of these regulations shall be and is declared to be a public nuisance and may be abated as such by the City. 15 (D) Iniunction as Additional Remedy_ Any violation of any provision of these regulations shall 16 be and is declared to be contrary to the public interest and shall at the discretion of the City, create a 17 cause of action for injunctive relief. 18 (E) Administrative Civil Penalties: In addition to any other penalties provided in this section, 19 $1,000.00 in Administrative Civil Penalties shall be imposed for each and every offense and for each and every day during any portion of which any violation of any provision of these regulations is 20 committed, continued, permitted,or caused by such violator: 21 (F) The City shall bill all persons liable for these Administrative Civil Penalties by mail showing 22 the itemized cost of such chargeable service and requesting payment. Payment of the penalties shall be due within thirty 30 days of the date of the bill is deposited in the Mail. If full payment is not received 23 within the required time for payment the bill will be delinquent and all persons liable for the penalties shall be charged interest at the maximum legal rate from the date the payment period expires and a 24 further civil penalty in the amount of$100.00 per day. The delinquent costs may he placed as a lien 25 against the property or collected by the City in any manner authorized bylaw and are recoverable in a civil action filed by the City in a court of competent jurisdiction. 26 (G) Liability for Expenses: In addition to the punishment provided by law a violator is liable for 27 such costs expenses and disbursements paid or incurred by the City or any of its contractors 28 in correction abatement and prosecution of the violation. Re-inspection fees to ascertain compliance with previously noticed or cited violations shall be charged against the owner of 24 C::Documents and S01ines,rahhal ie�.Log tict�ines lcmpornry Internet I''lesVCuntenl Ou1kwK,1`Ii3921C1`7-21-10 Strikeout O dinar'•re Deemed APnrmed.do_'Pk*ermenBmd$eit Ht WMPMAW_DO ._W_._ M"P F' 7/21/10 CITY ATTORNEY DRAFT I the establishment conducting the Deemed Approved Activity or owner of the property 2 where the establishment is located. The Enforcement Officer shall give the owner or other responsible party of such affected premises a written notice showing the itemized cost of 3 such chargeable service and requesting payment thereof. Should the bill not be paid in the required time, the charges shall be placed as a lien against the property. 4 5 SECTION 2. This Ordinance is based upon the recitals and findings set forth above, and the accompanying Staff Report and its attachments to this Ordinance,and is adopted pursuant to the 6 authority granted to the City of San Bernardino in Article 11, Section 7 of the California Constitution, and Sections 31 40(z),and 121 of the Charter of the City of San Bernardino. 7 SECTION ] Pursuant to Seeiian 31 and 121 of the /R...neF of the City of c Bernardino. 6' ..hall take eft-et nied:,.t„1. 9 k " SECTION 34. Compliance with the California Environmental Quality Act. The Mayor and Common 10 Council finds that this Ordinance is not subject to the California Environmental Quality Act (CEQA) I I pursuant to Sections 15061(b)(3)(the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment)and 15060(c)(3)(the activity is not a project as defined in 12 Section 15378)of the CEQA Guidelines, California Code of Regulations, Title 14,Chapter 3, because it 13 has no potential for resulting in physical change to the environment,directly or indirectly. 14 SECTION 45. Severabilitv:. If any section, subsection, subdivision, sentence,or clause or phrase in this Ordinance or any part thereof is for any reason held to be unconstitutional, invalid or ineffective by 15 any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The Mayor and Common Council hereby 16 declares that it would have adopted each section irrespective of the fact that any one or more 17 subsections, subdivisions, sentences, clauses,or phrases be declared unconstitutional, invalid, or ineffective. 18 19 20 21 22 23 24 25 26 27 28 25 C'.Documentc and Settinei\mhhal teil l al S sting\fc tx rare lnt•n ct I i1e}\Content.0ut1ook\FIi3921 CZ`.7-21-10 Strikeout Ordinance re Deemed Aouroved.doc •.' a 10 SIRI -01-1 7/21/10 CITY ATTORNEY DRAFT I AN f1� GENCYORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SAN 2 1 fD BERNARDINO MUNICIPAL CODE SECTION 19.06.030(2)(B)(DEVELOPMENT CODE) 3 REQUIRING A CONDITIONAL USE PERMIT FOR NEW ALCOHOLIC BEVERAGE SALES ACTIVITIES AND ESTABLISHING AUTOMATIC DEEMED APPROVED STATUS FOR LEGAL 4 NONCONFORMING ACTIVITIES, DECLARING Tuc URGENCY T !ERFOF AND rA ING 5 EFFECT P64MEDIAT-F v 6 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and Council of the City of San Bernardino at a meeting thereof,held on the day of 2010, by the following vote,to wit: a COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 9 MARQUEZ 10 11 DESJARDINS 12 BRINKER 13 SHORETT 14 KELLEY 1s JOHNSON 16 17 MC CAMMACK 1s 19 Rachel Clark,City Clerk 20 The foregoing Ordinance is hereby approved this day of 2010. 21 22 23 PATRICK J. MORRIS, Mayor 24 City of San Bernardino 25 Approved as to form: 26 JAMES F. PENMAN City Attorney 27 2s 26 C:\Documents and Settineshathal tell.ocal Settines�I emoor,v Intemet Files\fontcnt Outl i k1JT392 R B7-21-10 Strikeout Ordinance re D"med Appmved doe';___. — ATTACHMENT C (TH ARCHS INSTITUTE Applied Research for Community Health &-vo*4," Effectiveness of Alcohol Policy Regulation A Summary of Research from the Prevention field For elected officials, city staff, and residents of the City of San Bernardino Prepared by Dan Skiles, MA, Vice President, Institute for Public Strategies Annette Padilla, MPH- Consultant- 7/22/2010 This report was developed by The ARCNS INSTITUTE,a pogrom of tke Institute for Public Strategies, " 1881 Commerrenter East,Suite 138,Son Bernardino CA 92408;(909)266-1660;F= (90 9)2664634 Effectiveness of Alcohol Policy Regulation Page 2 Effectiveness of Alcohol Policy Regulation: A Summary Research from the Prevention Field 1. Background On May 3,2010 the San Bernardino City Council passed an urgency ordinance to address problems that tend to cluster around retail alcohol outlets.The new ordinance required a conditional use permit for any new business planning to sell alcohol and established automatic deemed approved status for all existing alcohol outlets. To retain this status, such businesses would have to adhere to a set of responsible operating standards that included restrictions against sales of single-serve alcoholic beverages and other products associated with higher rates of crime and nuisance-related activity. Alcohol retailers would also be required to have employees attend a Responsible Beverage Sales and Service training certified by the California Department of Alcoholic Beverage Control (ABC). Subsequently,a non-urgency version of the ordinance was referred to a Legislative Review Committee as well as to the San Bernardino Planning Commission for their input and recommendations.To aid these groups in their deliberation, a review of the research on the effectiveness of alcohol policy regulation was conducted and summarized in this report. II. Problem Review According to the bulk of scientific research,the impact of retail alcohol availability on local communities is profound,resulting in significant harm to individuals,deterioration of neighborhood quality of life and depletion of city resources. These impacts are manifested in higher rates of crime, underage drinking and a host of financial costs to local municipalities.Taken together,these factors exacerbate urban blight, leading eventually to economic decline. Outlet Density and Crime One of the key factors identified by the research is alcohol outlet density, which is defined as the space between alcohol-related business and/or the number of locations where alcohol is sold as compared to the overall population. (Pacific Institute for Research and Evaluation, 2008) In neighborhoods where such densities are high,there are typically high rates of crime. This includes not only the types of crimes that are associated with alcohol intoxication such as public drinking, DUI-related crashes and sexual assault, but also murder, robbery,auto theft and gang-related activities(Ventura County Limits,2005). Studies have also found that increases in domestic violence are associated with outlet density (McKinney, Caetano, Hams, and Ebama, 2009)Even child abuse and neglect has been associated with the concentration of outlets in California neighborhoods(Freisthler,Needell & Gruenewald, 2005; Freisthler, Gruenewald, Remer, Lery, and Needell, 2007). Researchers such as Scribner (1995) have found that 2.5 crimes will be committed annually for each outlet that is added over the saturation point and car crashes are magnified by high levels of density. And other studies show that increases in crime can in turn affect the economic viability of neighborhoods, as customers of other kinds of businesses are less willing to venture into areas with high rates of crime. In a recent study of 13 cities, it was found that crime makes a neighborhood undesirable, chasing off desirable retail businesses, and leading to the proliferation of undesirable ones such as liquor stores. Therefore, a vicious circle of crime and economic decline is established, with the ever increasing Effectiveness of Alcohol Policy Regulation Page 3 numbers of bars and liquor stores generating more and more crime, resulting in higher levels of urban blight and degeneration.(Hipp, 2010). The City of San Bernardino is a prime example of this phenomenon. With 189 oft sale locations such as liquor stores, convenience stores and markets, and 182 on-sale locations such as bars, clubs and restaurants, the city has about one of each of these kinds of business for every 1100 people, which is twice as many than are recommended by ABC.' And according to Geographic Information System (GIS) mapping, rates of crime tend to be higher around alcohol outlets than elsewhere (San Bernardino Police Department,2009). Underage Drinking Another problem resulting from excessive alcohol availability is higher rates of underage drinking. According to the California Healthy Kids Survey,conducted every two years by San Bernardino Unified High School District, over one-third (36%) of 11th graders reported drinking during the previous thirty- day period (CHKS Study, 2007). Research indicates that some of this may be attributed to high alcohol outlet density, as higher initial levels of drinking and excessive drinking have been observed among California youths residing in zip codes with higher densities of alcohol businesses (Treno, et al, 2008; Grube, Gruenewald, and Chen, 2010). Such findings are not surprising, as they have been noted throughout the world. A comprehensive analysis of 38 studies by the World Health Organization found that increased density of alcohol outlets is associated with increased amounts of alcohol consumption among youth. These studies also found increased numbers of assault and other violence such as homicide and self-inflicted injury (Campbell, 2009). Financial costs One way to summarize the extent of the negative impacts of excessive alcohol availability is by tracking financial costs, which typically outweigh the benefit of any income generated by alcohol sales. Such tracking methods are now used extensively the federal government (Miller, 2009), and in California by cities such as San Francisco (The Lewin Group, Inc., 2010). The results of tracking financial costs can be compelling. For example, a recent report, "Shoveling It Up 11," found that for each dollar in alcohol and tobacco taxes that goes to federal and state coffers, governments spend $8.95 on the consequences of smoking, alcohol abuse and addiction (The National Center on Addiction and Substance Abuse, 2009). Such estimates are based on the cost of health care and criminal justice systems, lost work from deaths, illness, injury, and reduce quality of life, which averages out to $1,000 per each person in the State of California. (Annual Catastrophe of Alcohol in California, 2008) For the City of San Bernardino, with a population of 207,832 (according to the 2008 United States Census) this translates to an annual cost of over$200 million dollars. III. Alcohol Policy as a Solution As crime, public safety and health-related problems are so strongly associated with alcohol outlet density,reductions in such densities have been strongly recommended as the primary strategy for reducing excessive alcohol consumption and its related harms(Cambell, Hahn,Elder, Brewer, et. al, 2009). However, because of state laws regarding regulation of alcohol licenses,this approach may be difficult to implement by local municipalities. But by exercising its land use authority,cities and counties can gain greater control over the business practices of problem alcohol retailers and mitigate problems that tend to cluster around their locations(Grube, 2005). In addition,appropriate zoning practices Appropriate levels of alcohol retailers set by The California Department of Alcoholic Beverage Control equal one on-sale outlet for every 2500 people mid one off-sale for every 2000 people. Effectiveness of Alcohol Policy Regulation Page 4 have been shown to be a leading approach to prevent market failure and economic decline(Qian,2010). Specific policy solutions suggested by recent research include the establishment of alcohol mitigation fees, retrictions against sales of high-risk products and the use of deemed approved ordinances to better regulate problematic alcohol outlets. Alcohol Mitigation Fees According to a recent report from the Marin Institute, harms from alcohol-related businesses are reflected in variety of costs to local municipalities. These include substantial costs to the criminal justice system which deals with police response to traffic accidents, domestic violence and court adjudication. There are also ambulance services, hospitalization and treatment services for alcohol related illness such as cirrhosis of the liver and cancer. Because of these costs, localities are justified in establishing alcohol fees to support regulatory service programs that mitigate the problems(Charge for Hann,2010). However, additional research is needed to identify appropriate levels of such alcohol mitigation fees in a given municipality (The Lewin Group, Inc.,2010). Restricting Sales of High-risk Products In recent years several products have been identified as high-risk,tending to result in higher rates of underage drinking, other crime and nuisance related activities. These include products with high alcoholic content, such as fortified wines, which are popular with the homeless population; Flavored malt beverages knows as"alcopops",which are reportedly popular with female teenagers; and single-serve alcoholic beverages, including high alcohol content beer known as malt liquor,which package large quantities of alcohol for immediate consumption, reportedly leading to public drinking. This latter category of products has long been a concern of police and other public officials in the City of San Bernardino, with anecdotal evidence indicating a connection between their sales and high rates of crime. And in a recent research study conducted by Dr. Robert Nash Parker from the University of California, Riverside, this connection was verified as a significant relationship was found between the sales of single-serve alcoholic beverages and violent crime. In his report on the issue,Dr. Parker stated that a regulatory approach to alcohol availability and, specifically,to single serve container availability, may be an effective one as part of an overall strategy designed to reduce violence in San Bernardino(2009). Deemed Aooroved Ordinances Deemed Approved Ordinances(DAO)affect existing non-conforming businesses,also known as "gmndfathered"alcohol outlets, requiring them to operate under enforceable minimum operating standards which will reduce existing problems and prevent potential problems associated with the sale of alcohol. (Recommendations for Implementation of BAPAC Proposals, Presentation 2007). One advantage of such ordinances is that they combine many of the elements recommended by prevention experts, including a fee to support enforcement and restrictions on sales of problematic products. DAOs have been implemented in twelve cities have proved to be successful, according to the Chief of Police in San Luis Obispo(Council Agenda Report,2009). These cities include Oakland (Director's Report, 2004), Santa Rosa, Oxnard, Ventura,Ontario,and Vallejo.Additional cities such as Berkeley, San Luis Obispo may soon follow and pass DAO ordinances. In addition,alcohol fees from DAO's exist in the Cities of Rohnert Park, San Pablo, Santa Cruz and Alameda County(Charge for Harm, 2010). The DAO ordinance in the city of Ventura and Vallejo had documented problem reductions. For example, in Vallejo there was 53%decrease of alcohol related police calls for service in the year following the implementation of the DAO(Healthy Community Consortium, 2006).The city of Ventura has also reported a decline in arrests and drunken driving events(Ventura Police Department, 2010). i Effectiveness of Alcohol Policy Regulation Page 5 Summary & Recommendations Research shows that problems related to the proliferation of alcohol outlets are significant,especially where oversaturation exists as it does in the City of San Bernardino. Such problems represent a significant cost to the community in terms of health and safety,to public official in the costs for law enforcement,and to the business community in the loss of its diversity and the threat of continued economic decline. As such there is substantial support for a fee-based DAO, which could serve as an additional tool for law enforcement. However,additional research is needed. For example,there is a lack of research on the impact of reducing alcohol density alone(2009)and this requires future investigation. Further study is also warranted on the impact on crime and monitoring of enforcement activities. Additionally, more studies are needed on how local decisions are made regarding policies affecting alcoholic beverage outlet density (Cambell et al, 2009). Because the relationship between other illegal activities such as prostitution is unclear, this should also be examined (2009). References Alcoholic Beverage Control,(2005).List of Moratorium Cities and Counties. Retrieved from www.abc.aov Berkeley,Recommendations for Implementation of BAPAC Proposals,Presentation(2007) Campbell,C.A.,Hahn,R.A.,Elder,R.,Brewer,R.,Chattopadhyay,S.,Fielding,Naimi,T.S.......Middleton,J.C.(2009). The effectiveness of limiting alcohol outlet density as a means of reducing excessive alcohol consumption and alcohol. related harms.Journal of Preventive Medicine, 37(6),556-569 Donswyk,D.(2010).City of Ventura Police Department,Responsible Retailer Program,PowerPoint Presentation Grube,J.(2005).Preventing alcohol-related problems:public policy strategies Transportation Research Circular,E- 0072,97-126 Grebe.J. W.;Gmenewald.P.1.;and Chen,M.J.(2010). Community alcohol outlet density and underage drinking. Addiction, 105,270.278 Hall,W.(2010).A renewed call for action on alcohol policy-editorial.Addiction, 105,767,768.doi: 10.1111/j.1360- 0443.2010.02944.x Hall,W.(2010).What are the policy lessons of National Alcohol Prohibition in the United States, 1920.1933? Addiction, 105, 11641173.doi:10.1111j.1360-0443.2010.02926.x Hipp,J.R.(2010).A dynamic view of neighborhoods:the reciprocal relationship between crime and neighborhood structural characteristics.Social Problems,57(2),205-230.doi: 10.1525/sp.2010.57.2.205 Institute for Public Strategies,East County Community Change Project.(21104).Issue briefing: Public convenience or necessity:the power of local municipalities to control alcohol outlet density. Healthy Communities Consortium.(2006).Issue Briefing,Volume,3 Johnston,L.D.,O'Malley,P.M.,Bachman,J.G.Schulenberg,J.E.(2008).Monitoring the Future National Survey Results on Drug Use, 1975-2007. Volume L,Secondary School Students. Besthesda,MD:National Institute on Drug Abuse.NIH publication 0"18A Johnston,L.D.,O'Malley,P.M., Bachman,J.G.Schulenberg,J.E.(2008).Monitoring the Future National Survey Results on Drug Use, 1975-1007. Volume 11. College Students and Adults Ages 19-45. Besthesda,MD:National Institute on Drug Abuse.NIH publication 08-6418B Kypri,K.;Paschall,M.J.;and Grube,J.W.(2009). Alcohol control policies and alcohol consumption by youth:a multi- national study. Addiction, 104, 1849-1855(2009) Letter to Mayor Bates and City Council,Berkeley Alcohol Policy Advocacy Coalition(2007) Maria Institute.(2008).Tbe Annual Castrophe of Alcohol in California,Executive Miller,T.and Hendrie,D.(2009).Substance abuse prevention dollars and cents:a cost-benefir analysis, DHHS Pub, No.(SMA)07-4298. Rockville,MD:Center for Substance Abuse Prevention,Substance Abuse and Mental Health Services Administration. McKinney,C.M.Caetano,R.,Harris,T.R.,and Ebama,MS. (2009). Alcohol availability and intimate partner violence among US couples.Alcoholism:Clinical and Experimental Research, 33(1) 169-76. Freisthler,Gmenewald,Renter, Lery,and Needell(2007). Exploring the spatial dynamics of alcohol outlets and Child Protective Services referrals,substantiations,and foster care entries.Child Maltreatment, 12(2), 114-24. Oakland City Planning Commission.(2004).The Good,the Bad,and the Ugly;a report Card and Recommendations on Oakland's Liquor Stores. Director's/Staff Report Effectiveness of Alcohol Policy Regulation Page 6 Pacific Institute for Research and Evaluation(PIRE). (2008). Prevention of Underage Drinking: Logic model Documentation by Johanna D. Birekmayer,Ph.D.,M.P.H.,Ren6e 1. Boothroyd, Deborah A. Fisher,Joel W.Gmbe, Harold D. Holder. Retrieved from www.oire.ore Parker,R.N.&Luther,K.(2007). Availability,Gang Violence and Alcohol Policy:Gaining Support for Alcohol Regulation via Harm Reduction Strategies.Contemporary Drug Problems Parker, R.N.&McCaffree,K. Draft Report on Analysis of Violence,Alcohol Outlets,and Sales of Single Serve Containers of Alcohol in San Bernardino,2007-2009.University of California, Riverside;Department of Sociology, Presley Center for Crime and Justice Studies. San Bernardino Police Department.(2009).Crime data Scribner, R.A.,MacKinnon,D.P.&Dwyer,J.H.(1995).The risk of assaultive violence and alcohol availability in Los Angeles County.American Journal of Public Health,85(3),335-340 Summary. Retrieved from www.marininstitute.or¢ The Lewin Group,Inc.(20 10)The cost of alcohol to San Francisco:analysis supporting an alcohol mitigation fee. Retrievied from www.marininstitute.ore The National Center on Addiction and Substance Abuse at Columbia University.(2009).Shoveling Up 11.the impact of substance abuse on federal,state, and local budgets Trion,(2008). Neighborhood Action Group v.County of Calavems(1984) 156 Cal.App.3d 1176. U.S.Census State and County QuickFacfs htto-//aui-kfr ct ensus eovlofd tales/06/0665000 hunt Ventura County Limits.(2005). Research Summary:Evaluating the Impact of Outlet Density on Crime World Health Organization(WHO),(2009).Alcohol and Global Health 2:Effectiveness and cost-effectiveness of policies and programs to reduce the harm caused by alcohol.Lancer, 373:2234-2246 Funding for this report provided by the California Department of Alcohol and Drug Programs, Center for Applied Research Solutions under contract 1020-298-224 I ORDINANCE NO. 2 AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SAN 3 BERNARDINO MUNICIPAL CODE SECTION 19.06.030(2)(B) (DEVELOPMENT CODE) REQUIRING A CONDITIONAL USE PERMIT FOR NEW ALCOHOLIC BEVERAGE SALES 4 ACTIVITIES AND ESTABLISHING AUTOMATIC DEEMED APPROVED STATUS FOR LEGAL NONCONFORMING ACTIVITIES AND REPEALING ORDINANCE NO. MC-1323U. 5 6 The Mayor and Common Council of the City of San Bernardino do ordain as follows: 7 WHEREAS,Section 40(z) of the City Charter vests the Mayor and Common Council with the power to make and enforce all laws and regulations with respect to municipal affairs, subject only to the 9 restrictions and limitations provided in the Charter or by State law; and 9 WHEREAS, research shows that areas with greater densities of on-site and off-site alcohol 10 outlets also generally have higher rates of motor vehicle crashes, alcohol-related hospital admissions, pedestrian injury collisions, self-reported injury and drinking and driving among both young people and I I adults; and 12 WHEREAS,the relationship between alcohol outlet density and violent crime has been well 13 documented; communities with 100 or more alcohol outlets and a population of 50,000 or more can expect an annual increase of 2.5 violent crimes each year for every alcohol outlet added in the area; and 14 WHEREAS, drunk driving arrests often take place at night, as bars are closing and highways © drunk 15 become crowded with patrons who have been drinking; and 16 WHEREAS, studies indicate the rate of alcohol-related crashes can be reduced by responsible 17 beverage service training programs, but the level of risk still is high when outlet density exceeds the acceptable levels of saturation; and I 18 19 WHEREAS, nuisance and criminal activities such as drug dealing, public drunkenness, loitering and other behaviors that negatively impact neighborhoods occur with disproportionate frequency at and 20 around the premises of on-site and off-site sale alcohol uses; and 21 WHEREAS, neighborhood character can change over time and the careful regulation of 22 nuisance activity by on-site and off-site alcohol uses will help to ensure that such uses do not contribute to the deterioration of neighborhoods; and 23 WHEREAS, the citizens of the City of San Bernardino have complained to the San Bernardino 24 Police Department about said nuisance and criminal activities; and 25 WHEREAS, there are many establishments in the City of San Bernardino selling alcoholic 26 beverages that do not conform with the Development Code and, as a result,these establishments generate a disproportionate amount of public nuisance service calls for service for the San Bernardino 27 Police Department; and 1028 WHEREAS, California law does not preempt local land use and zoning regulations with regard 2 to the sale of alcoholic beverages and the authority to regulate nuisance conditions created by state- licensed alcoholic beverage retailers derives from the City's Charter and general law police powers. 3 WHEREAS,the City of San Bernardino recognizes its responsibility to enforce the law and the 4 need for a partnership with alcoholic beverage sale establishments and the community to address illegal 5 activities in proximity to an alcoholic beverage sales establishment. 6 WHEREAS,the City wishes to require certain alcoholic beverage sale establishments to obtain a conditional use permit to lawfully engage in the sale of alcoholic beverages within the City; and 8 WHEREAS, the conditional use permit will require the business owner to comply with operational standards and training requirements as conditions of the conditional use permit; and 9 WHEREAS, the City wishes to designate each lawfully established and existing alcoholic 10 beverage sale business to be"deemed approved"to lawfully engage in the sale of alcoholic beverages 11 and be required to comply with operational standards as conditions to its deemed approved status; and 12 WHEREAS,the California Court of Appeals in City of Oakland, et al. v. Superior Court, et al., 45 Ca1.App.4`h 740(1996)held that a similar"deemed approved"ordinance was not preempted by state 13 laws regulating the sale of alcoholic beverages because the ordinance merely created an administrative 14 mechanism for enforcing nuisance and criminal laws that were applicable to all alcoholic beverage C establishments, even those in operation before the ordinance's effective date; and ( 15 �Vr WHEREAS,the Mayor and Common Council,by adopting this ordinance,have no intention to I6 regulate the sale of alcoholic beverages,but merely a desire to create an administrative mechanism 17 applicable to all alcoholic beverage establishments, to address the nuisance and criminal activities described above; and Is 19 NOW,THEREFORE,THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DO ORDAIN AS FOLLOWS: 20 SECTION 1. San Bernardino Municipal Code Section 19.06.030(2)(B) (Development Code) is 21 amended to read as follows: 22 Section 19.06.030(2)(B) 23 ARTICLE I—GENERAL 24 25 SECTION I—TITLE AND PURPOSE 26 A. Title: 27 (1) This ordinance shall be known as the Conditional Use Permit-Deemed Approved Alcoholic ® 28 Beverage Sales Regulations Ordinance. 2 C1 (2) This ordinance requires land use permits for newly established alcoholic beverage sales 2 activities,confers deemed approved status for existing alcoholic beverage sales activities and provides standards and an administrative hearing process to review violations of those standards in order to 3 protect the general health, safety, and welfare of the residents of the City of San Bernardino and to prevent nuisance activities where alcoholic beverage sales occur. 4 5. B. Purpose: 6 (1) To protect residential, commercial,industrial and civic areas and minimize the adverse impacts of nonconforming and incompatible uses; and 7 s (2) To provide opportunities for alcoholic beverage sales establishments to operate in a mutually beneficial relationship to each other and to other commercial and civic services; and 9 (3) To provide mechanisms to address problems associated with the public consumption of 10 alcoholic beverages such as litter, loitering, graffiti,unruly behavior and escalated noise levels; and u (4) To provide that alcoholic beverage sales establishments are not the source of undue public 12 nuisances in the community; and 13 (5) To provide for properly maintained alcoholic beverage sales establishments so that the 14 negative impacts generated by these activities are not harmful to the surrounding environment in any way; and © 1s (6) To monitor Deemed Approved establishments to ensure they do not substantially change in 16 mode or character of operation. 17 SECTION 11—DEFINITIONS 18 19 The meaning and construction of these words and phrases, as set forth below,shall apply throughout, except where the context clearly indicates a different meaning or construction. 20 (A)"Administrator"means the Administrative Hearing Officer as identified in Section III. 21 22 (B) "Alcoholic Beverage"means alcohol, spirits, liquor,wine,beer, and any liquid or solid containing alcohol, spirits,wine, or beer, that contains one-half of one percent or more of alcohol by 23 volume and that is fit for beverage purposes either alone or when diluted,mixed or combined with other substances,the sale of which requires a ABC license. 24 25 (C) "Alcoholic Beverage Sales Activity"means the retail sale of alcoholic beverages for onsite or offsite consumption. 26 (D) "Alcoholic Beverage Sales Establishment'means an establishment where an alcoholic 27 beverage sales activity occurs. Alcoholic beverage sales establishments include but are not limited to the C 28 following recognized types of establishments: liquor stores;beer and wine stores; convenience markets; markets;neighborhood specialty food markets;retail sales establishments; wine shops; service stations; 3 � taverns; clubs; cocktail lounges,ballrooms, cabarets, dance bars,piano bars; billiard or game parlors, © 2 bowling alleys;nightclubs, dance halls; cafes,bars, restaurants with bars; full-service restaurants; and fast food establishments. 3 (E) "California Department of Alcoholic Beverage Control'or"ABC"refers to the department 4 of the State of California empowered to act pursuant to Article 20, section 22, of the California 5 Constitution and authorized to administer the provisions of the Alcoholic Beverage Control Act. 6 (F) "Conditions of Approval'means a requirement that must be carried out by the activity by: (1) a new alcoholic beverage sales activity to exercise a land use permit; or(2) a legal nonconforming 7 alcoholic beverage sales activity to comply with deemed approved performance standards and to retain 8 its deemed approved status. 9 (G) "Deemed Approved Activity"means any Legal Nonconforming alcoholic beverage sales activity, as defined in subsection (J). Such activity shall be considered a Deemed Approved activity as 10 long as it complies with the Deemed Approved Performance Standards set forth in Article III, Section I IV 12 (H) "Deemed Approved Status"means the permitted use of land for a Deemed Approved Activity. Deemed Approved status replaces Legal Nonconforming status with respect to Alcoholic 13 Beverage Sales Commercial Activity and remains in effect as long as it complies with the Deemed 14 Approved provisions and performance standards. Q15 (1)"Illegal Activity"means an activity,which has been finally determined to be in noncompliance with the Deemed Approved provisions and performance standards. Such an activity shall 16 lose its Deemed Approved status and shall no longer be considered a Deemed Approved activity. 17 (J)"Legal Nonconforming Alcoholic Beverage Sales Commercial Activity"or Is "Legal Nonconforming Activity"means an Alcoholic Beverage Sales Commercial Activity which was a 19 nonconforming use pursuant to San Bernardino Municipal Code (Development Code) Chapter 19.62, and for which a valid state of California Alcoholic Beverage Control license had been issued and used in 20 the exercise of the rights and privileges conferred by the license at a time immediately prior to the effective date of the Deemed Approved Alcoholic Beverage Sale Regulations Ordinance. Such an 21 activity shall be considered a Deemed Approved Activity and shall no longer be considered a Legal 22 Nonconforming Activity. 23 (K) "Off-Sale Alcohol Outlet'means an establishment that conducts retail sales of Alcoholic Beverages for consumption off the premises where sold. 24 25 (L)"On-Sale Alcohol Outlet'means an establishment that conducts retail sales of Alcoholic Beverages for consumption on the premises where sold. 26 (M)"Operational Standards"means regulations for the business practice activities and land use 27 for locations with a Conditional Use Permit or those further requirements imposed to achieve these 28 goals. Operational Standards constitute requirements which must be complied with by an establishment in order to maintain its Conditional Use Permit. 4 (1) "Performance Standards"means regulations for the business practice activities and land use 2 for locations with Deemed Approved status or those further requirements imposed to achieve these goals. Performance Standards constitute requirements which must be complied with by an establishment 3 in order to retain its Deemed Approved status. 4 (0)"Permit'means a Conditional Use Permit issued pursuant to this ordinance. 5 (P) "Permittee"means the individual or entity that owns an alcoholic beverage sale 6 establishment and to whom a Conditional Use Permit to operate an alcoholic beverage sale establishment has been issued by the City of San Bernardino. 7 8 (Q) "Premises"means the actual space within a building devoted to alcoholic beverage sales. 9 (R) "Restaurant'means a bona fide eating place whose predominant function is the service of food and where on-site sale of alcoholic beverages is incidental or secondary. 10 I SECTION III-ADMINISTRATIVE HEARING OFFICER 12 The"Administrative Hearing Officer" shall have the same appointment and qualifications as that designated in San Bernardino Municipal Code Chapter 9.93, Administrative Civil Penalties; and shall 13 conduct public hearings and make recommendations intended to encourage and achieve the compliance 10. of particular alcoholic beverage sale establishments with the provisions of this Ordinance. This section is not intended to restrict the powers and duties otherwise pertaining to other City officers or bodies in © 15 the field of monitoring and ensuring the harmony of alcoholic beverage sale activities in the City. The Administrative Hearing Officers shall have the powers and duties assigned to them by the Development 16 Code, and other San Bernardino Municipal Code ordinances. 17 SECTION IV- INSPECTION AND RIGHT OF ENTRY 18 19 The sale of alcoholic beverages is a closely regulated industry. The officials responsible for enforcement of the City Municipal Code or other provisions of the Development Code or their duly 20 authorized representatives may enter on any site or into any structure open to the public for the purpose of investigation provided they shall do so in a reasonable manner whenever they have cause to suspect a 21 violation of any provision of this ordinance or whenever necessary to the investigation of violations to 22 the Conditions of Approval or Deemed Approved performance standards prescribed in these regulations. If an owner, occupant or agent refuses permission to enter, inspect or investigate,premises which are not 23 open to the public, the officials or their representatives may seek an inspection warrant under the provisions of California Code of Civil Procedure section 1822.50 et. seq. All such inspections shall be 24 conducted in compliance with the Fourth Amendment to the United States Constitution. 25 SECTION V- SEVERABILITY 26 If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this ordinance. The Mayor 27 and Common Council hereby declare that it would have adopted the ordinance and each section, © 28 subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more of the sections subsections, sentences, clauses or phrases may be declared invalid. 5 1 ARTICLE dI—CONDITIONAL USE PERMITS FOR NEW ALCOHOLIC BEVERAGE SALES 2 ACTIVITIES 3 SECTION I—PURPOSE 4 The general purposes of these regulations are to protect and promote the public health, safety, 5 comfort, convenience,prosperity and general welfare by requiring consideration and approval of a Conditional Use Permit before a new alcoholic beverage sales activity will be permitted in any land use 6 zoning district of the City and by requiring all new alcoholic beverage sales activities to comply with the operational standards in this ordinance and to achieve the following objectives: 7 $ (A)Protect surrounding neighborhoods from the harmful effects attributable to the sale of alcoholic beverages and to minimize the adverse impacts of nonconforming and incompatible uses. 9 (E) Encourage businesses selling alcoholic beverages to operate in a manner that is mutually 10 beneficial to other such businesses and other commercial and civic activities. I (C) Provide a mechanism to address problems often associated with the public consumption of 12 alcoholic beverages, such as litter, loitering, graffiti,unruly behavior and escalated noise levels. 13 (D)Ensure that businesses selling alcoholic beverages are not the source of undue public 14 nuisances in the community. Qis (E) Ensure that sites where alcoholic beverages are sold are properly maintained so that negative 16 impacts generated by these activities are not harmful to the surrounding environment in any way. 17 This Article alone does not allow or permit alcoholic beverage sales activities,but only applies to these activities where otherwise allowed or permitted within an involved applicable land use zoning Is district. This Article does not authorize alcoholic beverage sales activities in any land use district where 19 they are not otherwise allowed or permitted by the applicable involved zoning district's regulations. 20 The provisions of this ordinance are intended to compliment the State of California alcohol- related laws. The city does not intend to replace or usurp any powers vested in the California 21 Department of Alcoholic Beverage Control. 22 SECTION II—REQUIREMENT 23 Notwithstanding any other provisions of this Code,no new on-site or off-site alcoholic beverage 24 sales activity may be established unless a Conditional Use Permit is first obtained in accordance with the 25 requirements of this Article. The following uses are exempt from this requirement to obtain a Conditional Use Permit: 26 (A) Sit-down restaurants whose predominant function is the service of food and where the on- 27 site sale of alcoholic beverages is incidental or secondary. C21 6 . t © (B) Establishments containing 10,000 square feet or more,including but not limited to 2 supermarkets and drug stores,which do not sell alcoholic beverages as the principal business. 3 (C) Establishments,whose applications have been deemed complete prior to the effective date of this Ordinance by the Community Development Department. 4 5 (D) Temporary uses issued a Temporary License by the California Department of Alcoholic Beverage Control and established in compliance with all City laws and regulations. 6 SECTION III LOCATIONAL RESTRICTIONS 7 8 (A)Unless otherwise exempted under subsections B—H, a new alcoholic beverage sales activity is not permitted within 500 feet of any of the following locations: 9 1. A public or private state licensed or accredited school 10 11 2. A public park,playground,recreational area, or youth facility, including a nursery school,preschool, or day-care facility 12 13 3. A place of worship or religious institution 14 4. A hospital C15 5. An alcohol or other drug abuse recovery or treatment facility 16 6. A county social service office. 17 (B) Establishments containing 10,000 square feet or more, including but not limited to 18 supermarkets and drugstores,which do not sell alcoholic beverages as the principal business are exempt from these locational restrictions. 19 20 (C) Sit down restaurants whose predominant function is the service of food and where the on-site sale of alcoholic beverages is incidental or secondary are exempt from these locational restrictions. An 21 incidental bar or lounge shall be allowed for the convenience of dining patrons. (Establishments which 22 are primarily a bar or lounge or have a bar or lounge area as a principal or independent activity are not included in this exemption.) 23 (D) Other establishments for on-site consumption of alcohol may be exempted from the 24 locational restrictions, subject to evaluation of site-specific conditions through the Conditional Use 25 Permit review process and considering recommendations from the Police Department. 26 (E) Specialty retail establishments that offer unique product lines or variety of selection 27 warranting a finding of public convenience or necessity are exempt from the locational restrictions. 021 7 C) i (F)An automobile service station convenience store that meets the location criteria of Section 2 19.06.030(2)(T)may be exempted from these locational restrictions, subject to evaluation of site- specific conditions through the Conditional Use Permit review process and considering 3 recommendations from the Police Department. a (G)A fraternal organization or veterans club may be exempted from the locational restrictions, 5 subject to evaluation of site-specific conditions through the Conditional Use Permit review process and 6 considering recommendations from the Police Department. 7 (H) Temporary uses issued a Temporary License by the California Department of Alcoholic s Beverage Control and established in compliance with all City laws and regulations are exempt from the locational restrictions. 9 10 (1) The following location conditions shall be considered in the review of Conditional Use 11 Permit applications, and may be grounds for denial based on potential adverse effects to the public interest,health, safety or convenience: 12 13 1. A location within a crime reporting district, or within 500 feet of a crime reporting district,where the general crime rate exceeds the city-wide general crime rate by more 14 than 20 percent. © 15 2. A location where the new alcoholic beverage sales activity would be within 500 Feet from 16 an existing alcoholic beverage sales activity, or would lead to the grouping of more than four alcoholic beverage sales activities within a 1,000 foot radius from the new alcoholic 17 beverage sales activity. 1s 19 SECTION IV—OPERATIONAL STANDARDS 20 All new alcoholic beverage sales activities shall be designed, constructed, and operated to 21 conform to all of the following operational standards: 22 (A)That it does not result in adverse effects to the health,peace or safety of persons residing or 23 working in the surrounding area. 24 (B)That it does not jeopardize or endanger the public health or safety of persons residing or working in the surrounding area. 25 26 (C)That it does not result in 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, 27 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, C 28 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. 8 2 (D)That it complies with all provisions of local, state or federal laws, regulations or orders, including but not limited to those of the California Department of Alcoholic Beverage Control("ABC'), 3 California Business and Professions Code §§ 24200, 24200.6, and 25612.5, as well as any condition imposed on any permits issued pursuant to applicable laws,regulations or orders. This includes 4 compliance with annual City business registration fees and annual use permit fees. 5 (E) That its upkeep and operating characteristics are compatible with, and will not adversely 6 affect the livability or appropriate development of abutting properties and the surrounding 7 neighborhood. 8 (F) That the owners and all employees of the alcohol beverage sales establishment who are involved in the sale of alcoholic beverages complete an approved course in 'Responsible Beverage 9 Sales" (RBS) within sixty(60)days of hire for employees hired after the passage of this ordinance or within 6 months of the passage of this ordinance for existing employees. To satisfy this requirement, a 10 certified program must meet the standards of the Alcohol Beverage Control Responsible Beverage 11 Service Advisory Board or other certifying/licensing body designated by the State of California. 12 (G)A copy of these operational standards, any applicable ABC or City operating conditions, and any training requirements shall be posted in at least one prominent place within the interior of the 13 establishment where it will be readily visible and legible to the employees and patrons of the 14 establishment. (t 15 SECTION V—ADMINISTRATION r� 16 The San Bernardino City Planning Commission shall administer Conditional Use Permits. 17 SECTION VI—PERMIT APPLICATION 18 19 Any person, association,partnership, corporation or other entity desiring to obtain an alcoholic beverage sales activity Conditional Use Permit shall file an application with the City of San Bernardino 20 Community Development Department to forward to the San Bernardino City Planning Commission on a form provided by the City. The application shall be accompanied by a nonrefundable application 21 processing fee in an amount established by a resolution of the Mayor and Common Council. 22 The application for a Conditional Use Permit shall include,but not be limited to the following 23 information: 24 (A)The name, address and telephone number of the applicant. If the applicant is a corporation, 25 the applicant shall set forth the name of the corporation exactly as shown in its articles of incorporation. The applicant corporation or partnership shall designate one of its officers or general partners to act as 26 its responsible management officer. 27 (B)The name, address, and telephone number of each lender or share holder with a five percent 028 or more financial interest in the proposed business or any other person to whom a share or percentage of the income of the establishment is to be paid. 9 1 2 (C) The name, address, and telephone number of the person who shall manage and operate the establishment for which the permit is requested. 3 (D) The name, address, and telephone number of all existing schools,parks, playgrounds or 4 recreational areas, nonprofit youth facilities,places of worship,hospitals, alcohol or other drug abuse 5 recovery or treatment facilities or county social service offices within 500 feet of the proposed alcoholic beverage sales activity establishment. 6 (E) The name, address, and telephone number of all alcoholic beverage sale activities within 500 feet of the proposed alcoholic beverage sales activity establishment and within a 1000 foot radius from 6 the proposed alcoholic beverage sales activity establishment. 9 (F) The name, address, and telephone number of a person authorized to accept service of legal notices. 10 I1 (G) The proposed business name of the alcoholic beverage sales activity establishment and description of all operating aspects of the proposed business. 12 (H)The type of ABC license the applicant is seeking for the alcoholic beverage sales activity 13 establishment. 14 (1)Any other information reasonably necessary to accomplish the purposes of this ordinance. � 15 15 (J)The Planning Commission may refer the application to other City departments to determine whether the premises where the alcoholic beverage sales activity establishment will be located, complies 17 with the City's building,health, zoning and fire ordinances or other applicable ordinances or laws. City departments may conduct an inspection of the premises to determine compliance with the ordinances 18 and other laws they administer. City departments may prepare reports summarizing their inspections and 19 recommending whether to approve or deny the application based on their inspections. 20 SECTION VII—ACTION ON PERMIT APPLICATION 21 The Planning Commission shall approve issuance of the Conditional Use Permit to allow a new 22 alcoholic beverage sales activity upon making the following findings: 23 (A) The proposed alcoholic beverage sales activity establishment is located in a zoning district in which the establishment is a permitted use. 24 25 (B) A finding of"public convenience and necessity" (Business and Professions Code Section 23958.4(b) (2)), if the activity will be located in an area that has been determined by the State of 26 California Department of Alcoholic Beverage Control to have an undue concentration of licenses as n defined in Business and Professions Code Section 23958.4(a). ©21 10 Q (C) A finding that the alcoholic beverage sales activity will not aggravate existing problems in 2 the neighborhood created by the sale of alcohol such as loitering,public drunkenness, alcoholic beverage sales to minors, noise and littering. 3 (D) The proposed establishment will not detrimentally affect nearby neighborhoods considering 4 the distance of the alcohol establishment to residential buildings, schools,parks,playgrounds or 5 recreational areas,nonprofit youth facilities,places of worship, hospitals, alcohol or other drug abuse recovery or treatment facilities, county social service offices, or other alcoholic beverages sales activity 6 establishments. 7 (E) The proposed establishment will otherwise be compatible with existing and potential uses 8 within the general area. 9 (F) The proposed establishment is not located in what has been determined to be a high-crime 10 area or where a disproportionate number of police service calls occur. 1 t (G) The use of the proposed establishment is consistent with the General Plan. 12 SECTION VIII—CONDITIONS OF APPROVAL 13 Conditions of Approval that may be imposed include but are not limited to the following: 14 (A) Prohibited Products: To discourage nuisance activities, an Off-Sale Alcohol Outlet may be Q15 prohibited from selling one or more of the following products: 16 (1) Wine or distilled spirits in containers of less than 750 milliliters. 17 (2)Malt beverage products with alcohol content greater than five and one-half percent by 18 volume. 19 3 Wine with an alcoholic content ( ) greater than 14 percent by volume unless in corked bottles 20 and aged at least two years. 21 (4) Beer or malt liquor sold individually in containers of 40 ounces or less. 22 (5) Containers of beer or malt liquor not in their original factory packages of six-packs or 23 greater. 24 (6) Distilled spirits in bottles or containers smaller than 375 milliliters. 25 (7) Cooler products, either wine-or malt beverage-based, in less than four-pack quantities. 26 (B) Pay Telephones: Pay telephones on the site of the establishment shall be required to be of 27 the type that only allow outgoing calls and shall be located in a visible and well-lighted location. za tt Q (C) Program: A"complaint response community relations"program established and maintained 2 by the establishment conducting the Deemed Approved Activity may be required. The program may include the following: 3 (1) Posting at the entry of the establishment providing the telephone number for the area a commander of the local law enforcement substation to any requesting individual. 5 (2)Coordinating efforts with the police department to monitor community complaints about the 6 establishment activities. 7 (3)Having a representative of the establishment meet with neighbors or the applicable 8 neighborhood association on a regular basis and at their request attempt to resolve any neighborhood complaints regarding the establishment. 9 (D)Activities: If appropriate the following activities maybe prohibited on the premises: pool or 10 billiard tables, football or pinball games, arcade style video or electronic games, and coin-operated 11 amusement devices. 12 (E) Chilled Alcoholic Beverages: An Off-Sale Alcohol Outlet may be prohibited from 13 maintaining refiigerated or otherwise chilled alcoholic beverages on the premises. 14 (F) Hours of Operation: In an Off-Sale Alcohol Outlet,the sale of alcoholic beverages may be restricted to certain hours of each day of the week unless limited further by the State of California Q15 Department of Alcoholic Beverage Control. 16 G Cups: In Off-Sale Alcohol Outlets,the sale or distribution to the customer of paper or plastic 17 cups in quantities less than their usual and customary packaging may be prohibited. 18 (II) Signs: The following signs shall be required to be prominently posted in a readily visible 19 manner on an interior wall or fixture, and not on windows, in English, Spanish and the predominant language of the patrons: 20 (1)"California State Law prohibits the sale of alcoholic beverages to 21 persons under 21 years of age." 22 (2) "No Loitering or Public Drinking." 23 za (3) "It is illegal to possess an open container of alcohol in the vicinity of this establishment." 25 (1) Presentation of Documents: A copy of the Conditions of Approval and the California Department of Alcoholic Beverage Control license shall be required to be kept on the 26 premises and presented to any City Enforcement Officer or authorized state or county official upon request. 27 021 (J) Mitigating Alcohol Related Problems: The establishment shall be required to operate in a manner appropriate with mitigating alcohol related problems that negatively impact those individuals 12 1 living or working in the neighborhood including but not limited to sales to minors,the congregation of C2 individuals, violence on or near the premises, drunkenness,public urination, solicitation, drug-dealing, drug use, loud noise and litter. 3 (K) Drug Paraphernalia: An Off-Sale Alcohol Outlet shall be prohibited from selling a drug/tobacco paraphernalia products as defined in Health and Safety Code sections 5 11014.5 and 11364.5. "Drug Paraphernalia"means all equipment products and materials of any kind that are used intended for use or designed for use in planting,propagating, cultivating, growing, 6 harvesting,manufacturing, compounding, converting,producing,processing,preparing, testing, analyzing,packaging, repackaging, storing, containing, concealing,injecting,ingesting, inhaling, or 7 otherwise introducing into the human body a controlled substance in violation of the California Uniform B Controlled Substances Act commencing with California Health and Safety Code section 11000. 9 (L) Loitering_The establishment's operators or employees shall be required to discourage loiterers and to ask persons loitering longer than fifteen minutes to leave the area and contact local law 10 enforcement officials for enforcement of applicable trespassing and loitering laws if persons requested I to leave fail to do so. 12 (Ni) Security Cameras: At least two 24-hour time lapse security cameras may be required to be installed and properly maintained on the exterior of the building at locations recommended by the Police 13 Department. All criminal and suspicious activities recorded on this surveillance equipment must be 14 reported to local law enforcement. To the extent allowed by law,the establishment operators may be required to provide any tapes or other recording media from the security cameras to the Police 15 Department. [Request Police Dept. input] 16 (N) Security Guards: An establishment may be required to retain a specified number of security 17 guards. The number of security guards shall vary based upon the specific facts and circumstances of each establishment site and operation. All security guards shall have all required state and City permits 18 and licenses. 19 (0) Prohibited Vegetation: Exterior vegetation shall not be planted or maintained that could be 20 used as a hiding place for persons on the premises. Exterior vegetation shall be planted and maintained in a manner that minimizes its use as a hiding place. 21 22 (P) Window Obstructions: No more than 25%of windows or clear doors shall bear advertising of any sort, and all advertising signage shall be placed and maintained in a manner that ensures that law 23 enforcement personnel have a clear and unobstructed view of the interior of the premises, including the 24 area in which the cash registers are maintained, from the exterior public sidewalk or entrance. 25 26 27 © 28 13 1 SECTION IX—APPEALS FROM A DETERMINATION ON AN APPLICATION FOR 02 PERMIT 3 Any applicant or other person aggrieved by a decision of the Planning Commission on an application for a Conditional Use Permit required by this Article may appeal the decision to the Mayor 4 and Common Council pursuant to Development Code Chapter 19.52. 5 SECTION X—GROUNDS FOR CONDITIONAL USE PERMIT SUSPENSION OR c REVOCATION 7 An alcoholic beverage sales activity establishment Conditional Use Permit may be suspended by 8 the Planning Commission for up to one year or revoked after a noticed public hearing held pursuant to Development Code Chapter 19.52, for failure to comply with Operational Standards,training 9 requirements or conditions imposed through the Conditional Use Permit. 10 Notice of intention to suspend or revoke shall be in writing and shall state the grounds therefore. 11 Notice shall be mailed by U.S. First-Class Mail and Certified Mail Return Receipt Requested at least 10 days before the date of the hearing. 12 SECTION XI—INVESTIGATIVE PROCEDURES OF POTENTIAL VIOLATIONS OF 13 CONDITIONS OF APPROVAL 14 The City shall appoint an Administrative Hearing Officer pursuant to San Bernardino Municipal 1s Code Chapter 9.93,to conduct hearings, make findings and determine whether violations of this Article, ® including the Operational Standards and Conditions of Approval, as well as whether undue negative 16 impacts or public nuisance activities have occurred, are occurring or are likely to occur in the future. 17 The assigned Administrative Hearing Officer shall exercise all powers relating to the conduct of the administrative hearing pursuant to San Bernardino Municipal Code Chapter 9.93. 1s 19 Upon the City's receipt of a complaint from the public, Police Department, City official or any other interested person that a Conditional Use Permit activity is in violation of the Operational Standards 20 and/or Conditions of Approval set forth in this Article, the following procedure shall be followed: 21 (A) A City Enforcement Officer(any Police Officer or other City Enforcement Officer as listed 22 in San Berardino Municipal Code Chapter 9.93) shall assess the nature of the complaint and its validity by conducting an on-site observation and inspection of the premises to assess the activity's compliance 23 with Operational Standards and/or Conditions of Approval. 24 (B) If the Enforcement Officer determines that the activity is in violation of the Operational 25 Standards and/or Conditions of Approval, the Enforcement Officer may issue an Administrative Citation or an Administrative Civil Penalties Notice,which then may be subject to a hearing by the 25 Administrative Hearing Officer pursuant to San Bernardino Municipal Code Chapter 9.92 or 9.93. 27 (C) Any Administrative Citation or Administrative Civil Penalties Notice issued under this 29 section shall be issued,processed, and enforced in compliance with all of the provisions of San 14 1 Bernardino Municipal Code Chapter 9.92 and 9.93, unless otherwise expressly provided by this C2 Ordinance. 3 (D)The Administrative Hearing Officer shall determine whether the activity is in compliance with the operational standards and/or Conditions of Approval. Based on this determination,the Hearing 4 Officer may continue the Conditional Use permit status for the use in question,may impose new 5 conditions on the activity,may impose Administrative Civil Penalties pursuant to San Bernardino Municipal Code Chapter 9.93 for violations of the Operational Standards and/or Conditions of Approval 6 and may recommend that the Planning Commission suspend or revoke the activity's Conditional Use Permit. If the Hearing Officer determines instead to impose new conditions on the activity, such 7 conditions shall be based upon the information then before the Hearing Officer. In reaching a 8 determination as to whether a use has violated the Operational Standards or Conditions of Approval, or as to the appropriateness of imposing additional or amended conditions on a use, recommending 9 suspension or revocation of a use, assessing administrative penalties, or the amount of Administrative to Civil Penalties to assess,the Hearing Officer may consider: 11 1. The length of time the activity has been out of compliance with the Operational Standards and/or Conditions of Approval. 12 2. The impact of the violation of the Operational Standards and/or Conditions of 13 Approval on the community. 14 3. Any information regarding the owner's efforts to remedy the violation of the O15 operational standards and/or Conditions of Approval. 16 (E) "Efforts to Remedy" shall include,but are not limited to: 17 1. Timely calls to the Police Department that are placed by the owner of the Deemed 18 Approved activity,his or her employees, or agents. 19 2. Requesting that those persons engaging in activities causing violations of the 20 Operational Standards and or Conditions of Approval cease those activities, unless the owner of the activity, or his or her employees or agents feels that their personal safety would be threatened in making 21 that request. 22 3. Making improvements to the subject property or operations, including but not limited 23 to the installation of lighting sufficient to illuminate the area within the use's property line,the installation of security cameras,the clearing of window obstructions, the cleaning of sidewalks and the 24 abatement of graffiti within three days. 25 (P) If in the judgment of the Administrative Hearing Officer, the operations of the owner of the 26 activity constitute a nuisance,the owner is unable or unwilling to abate the nuisance and the nuisance is shown to be a threat to the public health and safety of the surrounding neighborhood, the Hearing 27 Officer may recommend that the Planning Commission suspend or revoke the activity's Conditional Use © 28 permit. All determinations, decisions, and conditions made or imposed regarding the activity shall run with the land. 15 C1 2 (G) The decision of the Administrative Hearing Officer shall become final and conclusive and shall not be subject to appeal to the Mayor and Common Council. Once the decision of the 3 Administrative Hearing Officer becomes final, the time in which judicial review of the decision must be sought shall be governed by California Code of Civil Procedure Section 1094.6, or other applicable a State Law. 5 SECTION XII—APPEAL FROM SUSPENSION OR REVOCATION OF CONDITIONAL USE 6 PERMIT 7 Any applicant or other person aggrieved by a decision of the Planning Commission from a 8 suspension or revocation of a Conditional Use Permit may appeal the decision to the Mayor and Common Council pursuant to Development Code Chapter 19.52. 9 ARTICLE III—STANDARDS AND PROCEDURES FOR EXISTING DEEMED APPROVED 10 ALCOHOLIC BEVERAGE SALES ACTIVITIES It SECTION I—PURPOSE 12 The purposes of these regulations are to protect and promote the public health, safety, comfort, t3 convenience,prosperity and general welfare by requiring that alcoholic beverage sales activities that are 14 legal nonconforming activities comply with the Deemed Approved performance standards in this Chapter and to achieve the following objectives: 15 �p (A)Protect surrounding neighborhoods from the harmful effects attributable to the sale of 16 alcoholic beverages and to minimize the adverse impacts of nonconforming and incompatible uses. 17 (B) Encourage businesses selling alcoholic beverages to operate in a manner that is mutually 18 beneficial to other such businesses and other commercial and civic activities. 19 (C)Provide a mechanism to address problems often associated with the public consumption of 20 alcoholic beverages, such as litter, loitering, graffiti, unruly behavior and escalated noise levels. 21 (D)Ensure that businesses selling alcoholic beverages are not the source of undue public 22 nuisances in the community. 23 (E)Ensure that sites where alcoholic beverages are sold are properly maintained so that negative 24 impacts generated by these activities are not harmful to the surrounding environment in any way. 25 SECTION II—APPLICABILITY 26 The Deemed Approved alcoholic beverage sales regulations shall apply to all alcoholic beverage sales activities for on-site or off-site consumption existing and operating within the City on the effective 27 date of this ordinance. 2s 16 © 1 SECTION III—AUTOMATIC DEEMED APPROVED STATUS 2 All Alcoholic Beverage Sales Commercial Activities that were Legal Nonconforming Activities, 3 on the effective date of this ordinance,whether or not previously granted a Conditional Use Permit by the City,shall automatically become Deemed Approved Activities as of the effective date of this 4 ordinance and shall no longer be considered Legal Nonconforming Activities. 5 Each deemed approved activity shall retain its Deemed Approved status as long as it complies 6 with the performance standards of this ordinance. 7 The occurrence of any of the following shall terminate the Deemed Approved status of the B alcoholic beverage sales activity after notice and a hearing in accordance with Section VI below, and require the issuance of a Conditional Use Permit in order to continue the alcoholic beverage sales 9 activity: 10 (A)An existing alcoholic beverage sales activity changes its activity so that ABC requires a I I different type of license. 12 (B)There is a substantial change of the mode or character of operation. 13 (C) As used herein, the phrase"substantial change of the mode or character of operation" 14 includes but is not be limited to the following: Cis 1. The off-site alcoholic beverage sales activity establishment substantially increases the 16 floor or land area or shelf space devoted to the display or sales of any alcoholic beverage. 17 2. The on-site alcoholic beverage sales activity establishment substantially increases the floor or land area or shelf space devoted to the display, sales or service of any alcoholic beverage. 18 19 3. The off-site or on-site alcoholic beverage sales activity establishment substantially expands the sale or service of any alcoholic beverages and/or substantially increases the number of 20 customer seats primarily devoted to the sale or service of any alcoholic beverages. 21 4. The off-site or on-site alcoholic beverage sales activity establishment extends the hours 22 of operation. 23 5. The alcoholic beverage sales activity establishment proposes to reinstate alcohol sales after the ABC license has been either revoked or suspended for a period 90 days or greater by ABC. 24 25 6. The alcoholic beverage sales activity voluntarily discontinues active operation for more than 90 consecutive days or ceases to be licensed by the ABC. 26 (D)A substantial change of the mode or character of operation shall not include: 27 © 21 1. Re-establishment,restoration or repair of an existing alcoholic beverage sales activity on the same premises after the premises have been rendered totally or partially inaccessible by a riot, 17 insurrection,toxic accident or act of God,provided that the re-establishment, restoration or repair does 2 not increase the sales or service of any alcoholic beverage, extend the hours of operation of any establishment or add to the capacity, floor or land area or shelf space devoted to alcoholic beverages of 3 any establishment that sells or serves any alcoholic beverages. 4 2. Temporary closure for not more than ninety days in cases of vacation or illness or for 5 purposes of repair,renovation, or remodeling if that repair,renovation, or remodeling does not change the nature of the premises and does not increase the sales or service of any alcoholic beverage, extend 6 the hours of operation of any establishment, or add to the capacity, floor or land area, or shelf space devoted to alcoholic beverages of any establishment that sells or serves any alcoholic beverages. 7 8 (E)Discontinuance. Once it is determined by the City that there has been a discontinuance of active operation for 90 consecutive days or a cessation of ABC licensing, it may be resumed only upon 9 the granting of a Conditional Use Permit as provided in Article H. The property owner shall be notified by the City of the termination of the Deemed Approved status and shall be informed of the property 10 owner's right to appeal the City's decision to the Administrative Hearing Officer. I SECTION IV—DEEMED APPROVED PERFORMANCE STANDARDS 12 The provisions of this section shall be known as the Deemed Approved performance standards. 13 The purpose of these standards is to control dangerous or objectionable environmental effects of 14 alcoholic beverage sales activities. These standards shall apply to all Deemed Approved alcoholic beverage sales activities that hold Deemed Approved status pursuant to this Article. © 15 An alcoholic beverage sales activity("Alcohol Outlet") shall retain its Deemed Approved status 16 only if it conforms to all of the following Deemed Approved performance standards: 17 (A)The Alcohol Outlet shall not cause adverse effects to the health,peace or safety of persons 18 residing or working in the surrounding area. 19 (B)The Alcohol Outlet shall not jeopardize or endanger the public health or safety of persons 20 residing or working in the surrounding area. 21 (C) The Alcohol Outlet shall not allow repeated nuisance activities within the premises or in 22 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 23 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 24 violations, curfew violations, or lewd conduct. 25 (D)The Alcohol Outlet shall comply with all provisions of local, state or federal laws, 26 regulations or orders,including but not limited to those of the ABC, California Business and Professions Code §§ 24200, 24200.6, and 25612.5, as well as any condition imposed on any permits issued pursuant 27 to applicable laws,regulations or orders. This includes compliance with annual City business © 21 registration fees. 18 (E) The Alcohol Outlet's upkeep and operating characteristics shall be compatible with and not © 2 adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood. 3 (F)A copy of these performance standards, any applicable ABC or City operating conditions, 4 and any training requirements shall be posted in at least one prominent place within the interior of the 6 establishment where it will be readily visible and legible to the employees and patrons of the establishment. 6 (G) The owners and all employees of the alcohol beverage sales establishment involved in the 7 sale of alcoholic beverages shall complete an approved course in "Responsible Beverage Sales" (RBS) 8 within 60 days of hire for employees hired after the passage of this ordinance or within six months of the passage of this ordinance for existing employees. To satisfy this requirement, a certified program must 9 meet the standards of the California Coordinating Council on Responsible Beverage Service(CCC/RBS) or other certifying/licensing body designated by the State of California. io 11 SECTION V—NOTIFICATION TO OWNERS OF ESTABLISHMENTS CONDUCTING 12 DEEMED APPROVED ACTIVITIES 13 The City's Community Development Department shall notify the owner of each Deemed 14 Approved activity, and also, if not the same, any property owner at the address shown on the City's property tax assessment records, of the activity's Deemed Approved status. The notice shall be sent by C15 U.S. First Class Mail and Certified Mail Return Receipt Requested and shall include a copy of the �✓ performance standards in this Article with the requirement that they be posted in a conspicuous and t6 unobstructed place visible from the entrance of the establishment for public review. This notice shall 17 also provide that the activity is required to comply with all performance standards, and that the activity is required to comply with all other aspects of the Deemed Approved regulations. Should the notice be is returned,then the notice shall be sent via regular U.S. Mail. Failure of any person to receive notice given 19 pursuant to this Article shall not affect the Deemed Approved status of the activity. 20 SECTION VI-DEEMED APPROVED STATUS PROCEDURES 21 The City shall appoint an Administrative Hearing Officer pursuant to San Bernardino Municipal 22 Code Chapter 9.93 to conduct hearings,make findings and determine whether violations of this Article, including the Deemed Approved performance standards or Conditions of Approval,undue negative 23 impacts or public nuisance activity,have occurred, are occurring, or are likely to occur in the future. The assigned Administrative Hearing Officer shall exercise all powers relating to the conduct of the za administrative hearing pursuant to San Bernardino Municipal Code Chapter 9.93. 2s Upon the City's receipt of a complaint from the public,Police Department, City official or any 26 other interested person that a Deemed Approved use is in violation of the performance standards set forth in this Article,the following procedure shall be followed: 27 zs 19 1 (A) A City Enforcement Officer shall assess the nature of the complaint and its validity by 2 conducting an on-site observation and inspection of the premises to assess the activity's compliance with performance standards. 3 (B) If the Enforcement Officer determines that the Deemed Approved activity is in violation of 4 the performance standards, the Enforcement Officer may issue an Administrative Citation or an 5 Administrative Civil Penalties Notice, which then may be subject to a hearing by the Administrative Hearing Officer pursuant to San Bernardino Municipal Code Chapters 9.92 or 9.93. 6 (C)Any Administrative Citation or Administrative Civil Penalties Notice issued under this 7 section shall be issued,processed, and enforced in compliance with all of the provisions of San s Bernardino Municipal Code Chapter 9.92 and 9.93, unless otherwise expressly provided by this Ordinance. 9 (D)The Administrative Hearing Officer shall determine whether the Deemed Approved activity 10 is in compliance with the performance standards. Based on this determination,the Hearing Officer may continue the Deemed Approved status for the use in question,may impose Administrative Civil Penalties for violations of the performance standards pursuant to San Bernardino Municipal Code 12 Chapter 9.93,may impose such reasonable conditions, including but not limited to the conditions listed in Article 11, Section VIH above, as are in the judgment of the Hearing Officer necessary to ensure 13 compliance with the performance standards and may suspend or revoke the Deemed Approved activity's t4 Deemed Approved status. If the Hearing Officer determines instead to impose further, new conditions on the Deemed Approved activity, such conditions shall be based upon the information then before the 15 Hearing Officer. In reaching a determination as to whether a use has violated the performance standards, Q or as to the appropriateness of imposing additional or amended conditions on a use, suspending or 16 revoking a use, assessing Administrative Civil Penalties, or the amount of Administrative Civil Penalties 17 to assess,the Hearing Officer may consider: 18 1. The length of time the Deemed Approved activity has been out of compliance with the 19 performance standards. 20 2. The impact of the violation of the performance standard(s)on the community. 21 3. Any information regarding the owner of the Deemed Approved activity's efforts to 22 remedy the violation of the performance standard(s). 23 (E) "Efforts to Remedy" shall include,but are not limited to: 24 1. Timely calls to the Police Department that are placed by the owner of the Deemed 25 Approved activity,his or her employees, or agents. 26 2. Requesting that those persons engaging in activities causing violations of the performance standard(s) cease those activities, unless the owner of the Deemed Approved activity,or his 27 or her employees or agents feels that their personal safety would be threatened in making that request. O21 20 1 3. Making improvements to the Deemed Approved activity's property or operations, 2 including but not limited to the installation of lighting sufficient to illuminate the area within the use's property line, the installation of security cameras, clear unobstructed windows, clean sidewalks and 3 graffiti abated within three days. 4 (F) If in the judgment of the Administrative Hearing Officer,the operations of the owner of the 5 deemed Approved activity constitute a nuisance, the owner is unable to abate the nuisance and the nuisance is shown to be a threat to the public health and safety of the surrounding neighborhood, the 6 Hearing Officer may suspend or revoke the activity's Deemed Approved status. Any continued operation of the business shall require a Conditional Use Permit approved by the Planning Commission. 7 All determinations, decisions, and conditions made or imposed regarding the Deemed Approved activity 8 shall run with the land. 9 (G)The decision of the Administrative Hearing Officer shall become final and conclusive and shall not be subject to appeal to the Mayor and Common Council. Once the decision of the 10 Administrative Hearing Officer becomes final as provided in this Chapter, the time in which judicial I I review of the decision must be sought shall be governed by California Code of Civil Procedure Section 1094.6,or other applicable State Law. 12 ARTICLE IV-ALCOHOLIC BEVERAGE SALES ACTIVITY PENALTIES 13 14 (A) Any person who violates, causes or permits another person to violate any provision of this C15 ordinance is guilty of either an infraction or misdemeanor. Any person convicted of either an infraction or misdemeanor under the provision of this ordinance shall be punished by a fine, imprisonment or both t5 according to Chapter 1.12 of the San Bernardino Municipal Code. 17 (B) Separate Offenses for Each Day: Any violator shall be guilty of a separate offense for each 18 and every day during any portion of which any violation of any provision of these regulations is 19 committed, continued,permitted, or caused by such violator and shall be punishable accordingly. 20 (C) Any Violation a Public Nuisance: In addition to the penalties provided in this section, any use or condition caused or permitted to exist in violation of any of the provisions of these regulations 21 shall be and is declared to be a public nuisance and may be abated as such by the City. 22 (D) Injunction as Additional Remedy: Any violation of any provision of these regulations shall 23 be and is declared to be contrary to the public interest and shall at the discretion of the City, create a cause of action for injunctive relief. 24 25 (E) Administrative Civil Penalties: In addition to any other penalties provided in this section, $1,000.00 in Administrative Civil Penalties shall be imposed for each and every offense and for each 26 and every day during any portion of which any violation of any provision of these regulations is committed, continued,permitted, or caused by such violator: 27 © 28 (F) The City shall bill all persons liable for these Administrative Civil Penalties by mail showing the itemized costs and requesting payment. Payment of the penalties shall be due within thirty 30 days of 21 I the date the bill is deposited in the Mail. If full payment is not received within the required time for 2 payment, the bill will be delinquent and all persons liable for the penalties shall be charged interest at the maximum legal rate from the date the payment period expires and a further civil penalty in the 3 amount of$100.00 per day. The delinquent costs may be placed as a lien against the property or collected by the City in any manner authorized bylaw and are recoverable in a civil action filed by the 4 City in a court of competent jurisdiction. 5 (G) Liability for Expenses: in addition to the punishment provided by law, a violator is liable for 6 such costs, expenses and disbursements paid or incurred by the City or any of its contractors in correction abatement and prosecution of the violation. Re-inspection fees to ascertain compliance with 7 previously noticed or cited violations shall be charged against the owner of the establishment conducting 8 the Deemed Approved Activity or owner of the property where the establishment is located. The Enforcement Officer shall give the owner or other responsible party of such affected premises a written 9 notice showing the itemized cost of such chargeable service and requesting payment thereof. Should the bill not be paid in the required time,the charges shall be placed as a lien against the property. 10 11 SECTION 2. This Ordinance is based upon the recitals and findings set forth above, and the accompanying Staff Report and its attachments to this Ordinance, and is adopted pursuant to the 12 authority granted to the City of San Bernardino in Article 11, Section 7 of the California Constitution, and Section 40(z) of the Charter of the City of San Bernardino. 13 14 SECTION 3. Compliance with the California Environmental Quality Act: The Mayor and Common Council finds that this Ordinance is not subject to the California Environmental Quality Act(CEQA) © 15 pursuant to Sections 15061(b)(3) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3)(the activity is not a project as defined in 16 Section 15378) of the CEQA Guidelines, California Code of Regulations,Title 14, Chapter 3,because it 17 has no potential for resulting in physical change to the environment,directly or indirectly. 18 SECTION 4. Severabilitv: If any section, subsection, subdivision, sentence, or clause or phrase in this 19 Ordinance or any part thereof is for any reason held to be unconstitutional,invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the 20 remaining portions of this Ordinance or any part thereof. The Mayor and Common Council hereby declares that it would have adopted each section irrespective of the fact that any one or more 21 subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid, or 22 ineffective. 23 SECTION 5. Ordinance No. MC-1323U, adopted by the Mayor and Common Council on May 3, 2010, is hereby repealed. 24 25 26 27 © 28 22 c ' 2 AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SAN BERNARDINO MUNICIPAL CODE SECTION 19.06.030(2)(B) (DEVELOPMENT CODE)REQUIRING A 3 CONDITIONAL USE PERMIT FOR NEW ALCOHOLIC BEVERAGE SALES ACTIVITIES AND ESTABLISHING AUTOMATIC DEEMED APPROVED STATUS FOR LEGAL 4 NONCONFORMING ACTIVITIES AND REPEALING ORDINANCE NO. MC-1323U. s I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and Council 6 of the City of San Bernardino at a meeting thereof,held on the day of ,2010,by the following vote, to wit: 7 8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 9 MARQUEZ 10 DESJARDINS u BRINKER 12 SHORETT 13 14 KELLEY ® 15 JOHNSON 16 MC CAMMACK 17 1s 19 Rachel Clark, City Clerk 20 The foregoing Ordinance is hereby approved this day of 12010. 21 22 PATRICK J. MORRIS, Mayor 23 City of San Bernardino 24 Approved as to form: 25 JAMES F. PENMAN 26 City ttorney ^ 27 © zs 23 8/3/10 LRG DRAFT- 9/2/10 DRAFT 1 ORDINANCE NO. 2 AN U4W&i.�RDINANCE OF THE CITY OF SAN BERNARDINO AMENDING 3 SAN BERNARDINO MUNICIPAL CODE SECTION 19.06.030(2)(B) (DEVELOPMENT CODE) REQUIRING A CONDITIONAL USE PERMIT FOR NEW ALCOHOLIC BEVERAGE SALES a ACTIVITIES AND ESTABLISHING AUTOMATIC DEEMED APPROVED STATUS FOR LEGAL NONCONFORMING ACTIVITIES AND REPEALING ORDINANCE NO. MC-1323U; s DECLARING THE URG N;D TAKING EFFECT 1MMEDIATELY. 6 7 The Mayor and Common Council of the City of San Bernardino do ordain as follows: a WHEREAS, Section 40(z)of the City Charter vests the Mayor and Common Council with the power to make and enforce all laws and regulations with respect to municipal affairs, subject only to the 9 restrictions and limitations provided in the Charter or by State law; and to A WHERE C Seettions 41 and 121 of the Git. Cha"..... reyiA . foi- the adoption .... tion of an urgency 11 inn) -.,.te _f the r„ . eil. and �zr�avrcol-mccr.ccrirn�and 12 13 WHEREAS, research shows that areas with greater densities of on-site and off-site alcohol outlets also generally have higher rates of motor vehicle crashes, alcohol-related hospital admissions, 14 pedestrian injury collisions, self-reported injury and drinking and driving among both young people and adults; and 15 16 WHEREAS,the relationship between alcohol outlet density and violent crime has been well documented; communities with 100 or more alcohol outlets and a population of 50,000 or more can 17 expect an annual increase of 2.5 violent crimes each year for every alcohol outlet added in the area; and 18 WHEREAS, drunk driving arrests often take place at night, as bars are closing and highways 19 become crowded with patrons who have been drinking; and 20 WHEREAS, studies indicate the rate of alcohol-related crashes can be reduced by responsible beverage service training programs,but the level of risk still is high when outlet density exceeds the 21 acceptable levels of saturation; and 22 WHEREAS, nuisance and criminal activities such as drug dealing,public drunkenness, loitering 23 and other behaviors that negatively impact neighborhoods occur with disproportionate frequency at and 24 around the premises of on-site and off-site sale alcohol uses; and 25 WHEREAS, neighborhood character can change over time and the careful regulation of nuisance activity by on-site and off-site alcohol uses will help to ensure that such uses do not contribute 26 to the deterioration of neighborhoods; and 27 WHEREAS, the citizens of the City of San Bernardino have complained to the San Bernardino 28 Police Department about said nuisance and criminal activities; and I C:\Documents and Settings\hemoeno\Mv Documents\9-2-10 Strikeout DAO LRC recommendation.docP:FHPF.°^ °1'110 °^�FT9/2/10DRAFT 1 WHEREAS, there are many establishments in the City of San Bernardino selling alcoholic 2 beverages that do not conform with the Development Code and, as a result,these establishments generate a disproportionate amount of public nuisance service calls for service for the San Bernardino 3 Police Department; and 4 WHEREAS, fer the above feasens and these preN,ided dtifing the hearing On this A n........ ..nd l�,....._.. en !'�eafte:l tied that there is euffent and inediete!bleat to the j.i:blie ii:akh � 6 7 a publie peaee, health and safety in aeeerdaneewith the City Chaf4ef seetiefts 31 and . 9 WHEREAS, California law does not preempt local land use and zoning regulations with regard to the sale of alcoholic beverages and the authority to regulate nuisance conditions created by state- 10 licensed alcoholic beverage retailers derives from the City's Charter and general law police powers. 11 WHEREAS, the City of San Bernardino recognizes its responsibility to enforce the law and the 12 need for a partnership with alcoholic beverage sale establishments and the community to address illegal 13 activities in proximity to an alcoholic beverage sales establishment. 14 WHEREAS,the City wishes to require certain new each new e°___ e_tleO lieeiisee of an alcoholic beverage sale establishments to seeufeobtain a conditional use permit to lawfully engage in the 15 sale of alcoholic beverages within the City; and 16 WHEREAS, the conditional use permit will require the business owner to comply with p operational standards and training requirements as conditions of the conditional use permit; and 18 WHEREAS, the City wishes to designate each lawfully established and existing alcoholic 19 beverage sale business to be"deemed approved"to lawfully engage in the sale of alcoholic beverages and be required to comply with operational standards as conditions to its deemed approved status; and 20 WHEREAS,the California Court of Appeals in City of Oakland, et al. v. Superior Court, et al., 21 45 Cal.App.4" 740 (1996)held that a similar"deemed approved"ordinance was not preempted by state 22 laws regulating the sale of alcoholic beverages because the ordinance merely created an administrative mechanism for enforcing nuisance and criminal laws that were applicable to all alcoholic beverage 23 establishments, even those in operation before the ordinance's effective date; and 24 I WHEREAS, the Mayor and Common Council, by adopting this ordinance,have no intention to 25 regulate the sale of alcoholic beverages, but merely a desire to create an administrative mechanism applicable to all alcoholic beverage establishments,to address the nuisance and criminal activities 26 described above; and 27 WHEREAS, an amtial use peffnit fee will be imposed en all aleaholie bevefage sale to Q.«A the east.. :...u fled L. the City to 2 CMocuments and Settings\hempeno\Mv D e m mis`9-2-10 Strikeout DAO LRC recommendatio d cc. P..00,.,...._,'_____..9 2-W �' 10 10 StAkeout 8,13/10 °AFT 9/2/10 DRAFT 1 and 2 > WHEREAS,C the antra l use_.e_...:t will establish standaMs of epe_etie.. f.l:eensed eleehol; 4 eeenefnie e Mh eommunity safety, and quality of life of San Re..nE ffd:..e residents; 5 I NOW,THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN 6 BERNARDINO DO ORDAIN AS FOLLOWS: 7 SECTION 1. San Bernardino Municipal Code Section 19.06.030(2)(B) (Development Code) is 8 amended to read as follows: 9 Section 19.06.030(2)(B) to 11 ARTICLE I—GENERAL 12 SECTION I—TITLE AND PURPOSE 13 A. Title: 14 (1) This ordinance shall be known as the Conditional Use Permit -Deemed Approved Alcoholic 15 Beverage Sales Regulations Ordinance. 16 (2)This ordinance requires land use permits for newly established alcoholic beverage sales 17 activities, confers deemed approved status for existing alcoholic beverage sales activities and provides standards and an administrative hearing process to review violations of those standards in order to 18 protect the general health, safety, and welfare of the residents of the City of San Bernardino and to 19 prevent nuisance activities where alcoholic beverage sales occur. 20 B. Purpose: 21 (1)To protect residential, commercial, industrial and civic areas and minimize the adverse 22 impacts of nonconforming and incompatible uses; and 23 (2) To provide opportunities for alcoholic beverage sales establishments to operate in a mutually beneficial relationship to each other and to other commercial and civic services; and 24 25 (3) To provide mechanisms to address problems associated with the public consumption of alcoholic beverages such as litter, loitering, graffiti, unruly behavior and escalated noise levels; and 26 (4) To provide that alcoholic beverage sales establishments are not the source of undue public 27 nuisances in the community; and 28 3 C:\Documents and Settin s� Ulempeno\Mv Documents\9-2-10 Strikeout DAO LRC rccommcndation.docr. 0 i ° '^ ,1"r„ o LRC DR 9/2/10 DRAFT 1 (5) To provide for properly maintained alcoholic beverage sales establishments so that the 2 negative impacts generated by these activities are not harmful to the surrounding environment in any way; and 3 (6) To monitor Deemed Approved establishments to ensure they do not substantially change in 4 mode or character of operation. 5 SECTION II—DEFINITIONS 6 The meaning and construction of these words and phrases, as set forth below, shall apply 7 throughout,except where the context clearly indicates a different meaning or construction. a (A)"Administrator"means the Administrative Hearing Officer as identified in Section III. 9 (B) "Alcoholic Beverage"means alcohol, spirits, liquor,wine, beer, and any liquid or solid 10 containing alcohol, spirits, wine, or beer, that contains one-half of one percent or more of alcohol by 11 volume and that is fit for beverage purposes either alone or when diluted, mixed or combined with other substances, the sale of which requires a ABC license. 12 (C)"Alcoholic Beverage Sales Activity" means the retail sale of alcoholic beverages for onsite 13 or offsite consumption. 14 (D) "Alcoholic Beverage Sales Establishment" means an establishment where an alcoholic 15 beverage sales activity occurs. Alcoholic beverage sales establishments include but are not limited to the following recognized types of establishments: liquor stores; beer and wine stores; convenience markets; 16 markets; neighborhood specialty food markets; retail sales establishments; wine shops; service stations; 17 taverns; clubs; cocktail lounges,ballrooms, cabarets, dance bars,piano bars; billiard or game parlors, bowling alleys; nightclubs, dance halls; cafes, bars, restaurants with bars; full-service restaurants; and 18 fast food establishments. 19 (E) "California Department of Alcoholic Beverage Control" or"ABC"refers to the department 20 of the State of California empowered to act pursuant to Article 20, section 22,of the California Constitution and authorized to administer the provisions of the Alcoholic Beverage Control Act. 21 22 (F)"Conditions of Approval"means a requirement that must be carried out by the activity by: (1) a new alcoholic beverage sales activity to exercise a land use permit; or(2) a legal nonconforming 23 alcoholic beverage sales activity to comply with deemed approved performance standards and to retain its deemed approved status. 24 25 (G)"Deemed Approved Activity"means any Legal Nonconforming alcoholic beverage sales activity, as defined in subsection(J). Such activity shall be considered a Deemed Approved activity as 26 long as it complies with the Deemed Approved Performance Standards set forth in Article III, Section IV. 27 2s 4 CADocuments and Settin+s\1 hempenoAMy DowmentsV9-2-10 Strikeout DAO LRC recommendation.doc°ACN4pF.NnI.Ordi.,...,.... ' I n — - )­,.d do vn t 0 LRG DRAFT 9/2/10 DRAFT (H)"Deemed Approved Status"means the permitted use of land for a Deemed Approved 2 Activity. Deemed Approved status replaces Legal Nonconforming status with respect to Alcoholic Beverage Sales Commercial Activity and remains in effect as long as it complies with the Deemed 3 Approved provisions and performance standards. 4 (I) "Illegal Activity" means an activity,which has been finally determined to be in 5 noncompliance with the Deemed Approved provisions and performance standards. Such an activity shall lose its Deemed Approved status and shall no longer be considered a Deemed Approved activity. 6 (J)"Legal Nonconforming Alcoholic Beverage Sales Commercial Activity" or 7 "Legal Nonconforming Activity"means an Alcoholic Beverage Sales Commercial Activity which was a 8 nonconforming use pursuant to San Bernardino Municipal Code (Development Code) Chapter 19.62, and for which a valid state of California Alcoholic Beverage Control license had been issued and used in 9 the exercise of the rights and privileges conferred by the license at a time immediately prior to the effective date of the Deemed Approved Alcoholic Beverage Sale Regulations Ordinance. Such an 10 activity shall be considered a Deemed Approved Activity and shall no longer be considered a Legal I I Nonconforming Activity. 12 (K) "Off-Sale Alcohol Outlet" means an establishment that conducts retail sales of Alcoholic 13 Beverages for consumption off the premises where sold. i 14 (L) "On-Sale Alcohol Outlet"means an establishment that conducts retail sales of Alcoholic Beverages for consumption on the premises where sold. 15 (M) "Operational Standards"means regulations for the business practice activities and land use 16 for locations with a Conditional Use Permit or those further requirements imposed to achieve these 17 goals. Operational Standards constitute requirements which must be complied with by an establishment in order to maintain its Conditional Use Permit. 18 19 (N) "Performance Standards" means regulations for the business practice activities and land use for locations with Deemed Approved status or those further requirements imposed to achieve these 20 goals. Performance Standards constitute requirements which must be complied with by an establishment in order to retain its Deemed Approved status. 21 22 (0)"Permit"means a Conditional Use Permit issued pursuant to this ordinance. 23 (P) "Permittee" means the individual or entity that owns an alcoholic beverage sale establishment and to whom a Conditional Use Permit to operate an alcoholic beverage sale 24 establishment has been issued by the City of San Bernardino. 25 (Q) "Premises"means the actual space within a building devoted to alcoholic beverage sales. 26 (R) "Restaurant'=meaxs' means a bona fide eating place whose predominant function is the 27 service of food and where on-site sale of alcoholic beverages is incidental or secondary. 28 5 C\Doeument.and Settineslhempenowly Documents\9-2-10 Strikeout DAO L12C recommendation doo°.?�� r'.."'°°^°°rye..°r'^--n-AtVr veJ,tk�e.._.. — 8/340 r FTC 9/2/10 DRAFT I SECTION III—ADMINISTRATIVE HEARING OFFICER 2 The"Administrative Hearing Officer" shall have the same appointment and qualifications as that 3 designated in San Bernardino Municipal Code Chapter 9.93, Administrative Civil Penalties; and shall conduct public hearings and make recommendations intended to encourage and achieve the compliance 4 of particular alcoholic beverage sale establishments with the provisions of this Ordinance. This section 5 is not intended to restrict the powers and duties otherwise pertaining to other City officers or bodies in the field of monitoring and ensuring the harmony of alcoholic beverage sale activities in the City. The 6 Administrative Hearing Officers shall have the powers and duties assigned to them by the Development Code,-and other San Bernardino Municipal Code ordinances. 7 8 SECTION IV- INSPECTION AND RIGHT OF ENTRY 9 The sale of alcoholic beverages is a closely regulated industry. The officials responsible for enforcement of the City Municipal Code or other provisions of the Development Code or their duly t0 authorized representatives may enter on any site or into any structure open to the public for the purpose I I of investigation provided they shall do so in a reasonable manner whenever they have cause to suspect a violation of any provision of this ordinance or whenever necessary to the investigation of violations to 12 the Conditions of Approval or Deemed Approved performance standards prescribed in these regulations. If an owner, occupant or agent refuses permission to enter, inspect or investigate, premises which are not 13 open to the public,the officials or their representatives may seek an inspection wan-ant under the 14 provisions of California Code of Civil Procedure section 1822.50 et. seq. All such inspections shall be conducted in compliance with the Fourth Amendment to the United States Constitution. 15 SECTION V- SEVERABILITY 16 If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be 17 invalid, such decision shall not affect the validity of the remaining portions of this ordinance. The Mayor and Common Council hereby declare that it would have adopted the ordinance and each section, 18 subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more of the 19 sections subsections, sentences, clauses or phrases may be declared invalid. 20 ARTICLE II—CONDITIONAL USE PERMITS FOR NEW ALCOHOLIC BEVERAGE SALES ACTIVITIES 21 22 SECTION I—PURPOSE 23 The general purposes of these regulations are to protect and promote the public health, safety, comfort, convenience,prosperity and general welfare by requiring consideration and approval of a 24 Conditional Use Permit before a new alcoholic beverage sales activity will be permitted in any land use 25 zoning district of the City and by requiring all new alcoholic beverage sales activities to comply with the operational standards in this ordinance and to achieve the following objectives: 26 (A)Protect surrounding neighborhoods from the harmful effects attributable to the sale of 27 alcoholic beverages and to minimize the adverse impacts of nonconforming and incompatible uses. 28 6 C\Documcnts and Scti n ti\g� he npc ioWy Documents\9-2-10 Strikeout DAO LRC recommendation.docF�NEN4PB�'(4'WFdinaiiees,9 240 o 11 1 no n LRG DRAFT 9/2/10 DRAFT (B) Encourage businesses selling alcoholic beverages to operate in a manner that is mutually 2 beneficial to other such businesses and other commercial and civic activities. 3 (C)Provide a mechanism to address problems often associated with the public consumption of 4 alcoholic beverages, such as litter, loitering, graffiti, unruly behavior and escalated noise levels. s (D) Ensure that businesses selling alcoholic beverages are not the source of undue public 6 nuisances in the community. 7 (E) Ensure that sites where alcoholic beverages are sold are properly maintained so that negative 8 impacts generated by these activities are not harmful to the surrounding environment in any way. 9 This Article alone does not allow or permit alcoholic beverage sales activities, but only applies to these activities where otherwise allowed or permitted within an involved applicable land use zoning 10 district. This Article does not authorize alcoholic beverage sales activities in any land use district where I I they are not otherwise allowed or permitted by the applicable involved zoning district's regulations. 12 The provisions of this ordinance are intended to compliment the State of California alcohol- related laws. The city does not intend to replace or usurp any powers vested in the California 13 Department of Alcoholic Beverage Control. 14 SECTION II—REQUIREMENT 15 Notwithstanding any other provisions of this Code, no new on-site or off-site alcoholic beverage I6 sales activity may be established unless a Conditional Use Permit is first obtained in accordance with the 17 requirements of this Article. The following uses are exempt from this requirement to obtain a Conditional Use Permit: Is 19 (A) Sit-down restaurants whose predominant function is the service of food and where the on-site sale of alcoholic beverages is incidental or secondary. 21 (B) Establishments containing-13;00010,000 square feet or more, including but not limited to 22 supermarkets and drug stores,which do not sell alcoholic beverages as the principal business_. 23 24 25 (C) Establishments, whose applications have has been deemed complete prior to the effective 26 date of this Ordinance by the Community Development SefN-iees Department. -are 27 28 (M(DITemporary uses issued u TemporarN license be the California Department of Alcoholic Beverage Control and established in compliance with all City laws and regulations. 7 CADocuments and Seltin sg \hempenoWy Documents\9-2-10 Strikeout DAO LRC recommendation doc°.`O""°°"&.Ofd i ng-°°°`" 2-40 ()fdjH�ft Fe DeeffledAPPF9­.d(10 8/340 I o .RG DRAFT 9/2/10 DRAFT 1 2 SECTION III–LOCATIONAL RESTRICTIONS 3 Unless otherwise exempted under subsections B=H Aa new alcoholic beverage sales activity is not permitted within 500 feet of any of the following locations: a — s (A) Within 500 feet of an existing aleeholie beverage sales aefivity. 6 (B) Within 500 feet of aii), of ihe followingt 7 1. A public or private state licensed or accredited school s 2. A public park,playground,of recreational area, or youth facility, including a 9 nursery school preschool or day-care facility 10 z n n -^at. ouch c eility u 3.43 A place of worship or religious institution 12 13 4.54:A hospital 14 5.65 An alcohol or other drug abuse recovery or treatment facility 15 6.WF.. A county social service office. 16 ire Within hi ng district ,. withift 500 a;,et of a^..:... e.,eFting ,tithe, ...hefe the 17 genefal efime rate exeeeds the My wide genefal erime rate by mefe than 20 pefeeni. IS (D) A leeation where !he new aleahelie bevevage sales aetivit),would lead!a the gFouping of marL than fettf aleaholie beverage gales aetivities within a 1,000 fae� Fadius fiern the new alcohelie 19 be a sales 20 (#� M(E-)_ Establishments containing 46 000 10,000 square feet or more, including but not 21 limited to supermarkets and drugstores, which do not sell alcoholic beverages as the principal business 22 are exempt from thesese locational restrictions. 23 24 (C) Sit down-restaurants whose predominant function is the service of food and where the on- 25 site sale of alcoholic beverages is incidental or secondary are exempt from these locational restrictions. An incidental bar or lounge shall be allowed for the convenience of dining patrons. (Establishments 26 which are primarily a bar or lounge or have a bar or lounge area as a principal or independent activity are not included in this exemption.) 2� 2 s CADocuments and Settin sVtem no\M Do uments\9-2-10 Strikeout DAO LRC rc:ommendation.doc-Ir "DO.,.-n^-.^o:^o:d:,:a-a�"'9^ n.aH_ _ Fe Peeflied n .va a36 gi3/10 LRC DRAFT- 9/2/10 DRAFT I (D)A"Other establishments for on-site consumption of alcohol may be exempted from the locational restrictions Subiect to evaluation of site-specific conditions through the 2 Conditional Use Permit review process and considering recommendations from the Police 3 Department. a Q Specialty retail establishments that offer unique product lines or variety of selection not 5 :1 fl-!- ° lb City and thefefefp warranting a finding of 1ublic convenience or neccssity 6 are exempt from the locational restrictions 7 (F) An automobile service station convenience store that meets the location criteria of Section 8 19 06 030(2)(T)may be exempted from these locational restrictions, subject to evaluation of site-specific conditions through the Conditional Use Permit review process and considering 9 recommendations from the Police Department. 10 I I (G)A fraternal organization or veterans club may be exempted from the locational restrictions Subiect to evaluation of site-specific conditions through the Conditional Use Permit review 12 process and considering recommendations from the Police Department. 13 (H)Temporary uses issued a Temporary License by the California Department of Alcoholic 14 Beverage Control and established in compliance with all City laws and regulations are 15 exempt from the locational restrictions. 16 (T) The following location conditions willshall be considered in the review of Conditional 17 Use Permit applications and may be grounds for denial based on potential adverse effects to the Public interest, health, safety or convenience: 18 19 1 A location within a crime reporting district, or within 500 feet of a crime reporting 20 district where the general crime rate exceeds the city-wide general crime rate by more than 20 percent. 21 22 2. A location where the new alcoholic beverage sales activity would be within 500 feet from 23 an existing alcoholic beverage sales activity, or would lead to the grouping of more than four alcoholic beverage sales activities within a 1,000 foot radius from the new alcoholic beverage 24 sales activity. A leeatien whefe the new eleebalie bevefaee sales aefivivy would be Within 500 feet 25 26 sales Etefivifies witbin a 1.000 feet fadius frafn the new aleehelie beyefage sales aefiNj 27 28 SECTION IV—OPERATIONAL STANDARDS 9 C'\Documents and Settin s�empeno\My Documents\9-2-10 Strikeout DAO LRC recommendation.docc c 10 240 8/34" LRG DRAFT 9/2/10 DRAFT I All new alcoholic beverage sales activities shall be designed, constructed, and operated to 2 conform to all of the following operational standards: 3 (A)That it does not result in adverse effects to the health, peace or safety of persons residing or working in the surrounding area. 4 5 (B)That it does not jeopardize or endanger the public health or safety of persons residing or working in the surrounding area. 6 (C) That it does not result in repeated nuisance activities within the premises or in close 7 proximity of the premises, including but not limited to disturbance of the peace, illegal drug activity, 8 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, 9 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. 10 I t (D) That it complies with all provisions of local, state or federal laws,regulations or orders, including but not limited to those of the California Department of Alcoholic Beverage Control ("ABC'), 12 California Business and Professions Code §§ 24200,24200.6, and 25612.5,as well as any condition imposed on any permits issued pursuant to applicable laws, regulations or orders. This includes 13 compliance with annual City business registration fees and annual use permit fees. 14 (E) That its upkeep and operating characteristics are compatible with, and will not adversely 15 affect the livability or appropriate development of abutting properties and the surrounding 16 neighborhood. 17 (F)That the owners and all employees of the alcohol beverage sales establishment who are involved in the sale of alcoholic beverages complete an approved course in "Responsible Beverage Is Sales" (RBS) within sixty (60) days of hire for employees hired after the passage of this ordinance or 9 within 6 months of the passage of this ordinance for existing employees. To satisfy this requirement, a certified program must meet the standards of the Galifiam:° Gee_,1:..,.ting ' n i1 Ott Responsible Beverage e_.,iee (GCGL oo)Alcohol Beverage Control Responsible Bevei agc Service Advisory Board or other certifying/licensing body designated by the State of California. 21 22 .. (G) That . 1 aleal„ -...._ J beyee sales aetiyit:e.. ..y ati of fft .el fee in efde«to de4«ay the expease to 23 (HG)A copy of these operational standards, any applicable ABC or City operating conditions, 24 and any training requirements shall be posted in at least one prominent place within the interior of the 25 establishment where it will be readily visible and legible to the employees and patrons of the establishment. 26 SECTION V—ADMINISTRATION 27 28 The San Bernardino City Planning Commission shall administer Conditional Use Permits. 10 CADocuments and Settines\hemoenoWy Documents\9-2-10 Strikeout DAO LRC recommendation.docF!I,BN4PE�IO'Qfdinanees�9 2-10 3 10 e 84110 .gun DRAFT 9/2/10 DRAFT I SECTION VI—PERMIT APPLICATION 2 Any person, association, partnership, corporation or other entity desiring to obtain an alcoholic 3 beverage sales activity Conditional Use Permit shall file an application with the City of San Bernardino Community Development Department to forward to the San Bernardino City Planning Commission on a 4 form provided by the City. The application shall be accompanied by a nonrefundable application s processing fee in an amount established by a resolution of the Mayor and Common Council. 6 The application for a Conditional Use Permit shall eentaininclude but not be limited to the following information: 7 8 (A) The name, address and telephone number of the applicant. If the applicant is a corporation, the applicant shall set forth the name of the corporation exactly as shown in its articles of incorporation. 9 The applicant corporation or partnership shall designate one of its officers or general partners to act as its responsible management officer. 10 I I (B) The name, address, and telephone number of each lender or share holder with a five percent or more financial interest in the proposed business or any other person to whom a share or percentage of 12 the income of the establishment is to be paid. 13 (C) The name, address, and telephone number of the person who shall manage and operate the 14 establishment for which the permit is requested. 1s (D)The name, address, and telephone number of all existing schools,parks, playgrounds or recreational areas,nonprofit youth facilities, places of worship, hospitals, alcohol or other drug abuse 16 recovery or treatment facilities or county social service offices within 500 feet of the proposed alcoholic 17 beverage sales activity establishment. 18 (E) The name, address, and telephone number of all alcoholic beverage sale activities within 500 19 feet of the proposed alcoholic beverage sales activity establishment and within a 1000 foot radius from the proposed alcoholic beverage sales activity establishment. 20 (F)The name, address, and telephone number of a person authorized to accept service of legal 21 notices. 22 (G) The proposed business name of the alcoholic beverage sales activity establishment and 23 description of all operating aspects of the proposed business. 24 (H) The type of ABC license the applicant is seeking for the alcoholic beverage sales activity 25 establishment. 26 27 28 11 CADocuments and SettinksliempenoNy Dc cument \9 2 10 Strikeout DAO I RC recommendation doer'£`,?,°-°o}.^o,^QFdi0anoeg°2 ^ Ovdinanee re Deemed Appfaved-J�' /3110 LRG DRAFT_9/2/10DRAFT 2 1. sales .... blisl. ,.nt the p and all o is fin.. and .. sed par On 3 —(ICI) Any other information reasonably necessary to accomplish the purposes of this ordinance. 4 5 (LJ)The Planning Commission may refer the application to other City departments to determine whether the premises where the alcoholic beverage sales activity establishment will be located, complies 6 with the City's building, health, zoning and fire ordinances or other applicable ordinances or laws. City departments may conduct an inspection of the premises to determine compliance with the ordinances 7 and other laws they administer. City departments may prepare reports summarizing their inspections and 8 recommending whether to approve or deny the application based on their inspections. 9 SECTION VII–ACTION ON PERMIT APPLICATION 10 The Planning Commission shall approve issuance of the Conditional Use Permit to allow a new 11 alcoholic beverage sales activity upon making the following findings: 12 (A)The proposed alcoholic beverage sales activity establishment is located in a zoning district in 13 which the establishment is a permitted use. 14 (B) A finding of"public convenience and necessity" (Business and Professions Code Section 23958.4(b) (2)), if the activity will be located in an area that has been determined by the sState of 15 California Department of Alcoholic Beverage Control to have an undue concentration of licenses as 16 defined in Business and Professions Code Section 23958.4(a). 17 (C) A finding that the alcoholic beverage sales activity will not aggravate existing problems in the neighborhood created by the sale of alcohol such as loitering,public drunkenness, alcoholic 18 beverage sales to minors, noise and littering. 19 (D) The proposed establishment will not detrimentally affect nearby neighborhoods considering 20 the distance of the alcohol establishment to residential buildings, schools, parks, playgrounds or recreational areas, nonprofit youth facilities, places of worship, hospitals, alcohol or other drug abuse 21 recovery or treatment facilities, county social service offices, or other alcoholic beverages sales activity 22 establishments. 23 (E) The proposed establishment will otherwise be compatible with existing and potential uses within the general area. 24 25 (F) The proposed establishment is not located in what has been determined to be a high-crime area or where a disproportionate number of police service calls occur. 26 (U) The use of the r5oposed establishment is consistent with the General Plan. 27 28 SECTION VIII–CONDITIONS OF APPROVAL 12 C\Document•and Scttinps\hemn enc\Mv Document \9-2-10 Strikeout DAO LRC re commendation doc°`O"AO°"'^`^Fdimanee,^W ^-a _,n . . 9/2/10 DRAFT I Conditions of Approval that 6ha4may be imposed include but are not limited to the following: 2 (A) Prohibited Products: To discourage nuisance activities, an Off-Sale Alcohol Outlet shallmay 3 be prohibited from selling one or more of the following products: 4 (1) Wine or distilled spirits in containers of less than 750 milliliters. 5 (2) Malt beverage products with alcohol content greater than five and one-half percent by 6 volume. 7 (3) Wine with an alcoholic content greater than 14 percent by volume unless in corked bottles 8 and aged at least two years. 9 (4) Beer or malt liquor sold individually in containers of 40 ounces or less. 10 (5) Containers of beer or malt liquor not in their original factory packages of six-packs or II greater. 12 (6) Distilled spirits in bottles or containers smaller than 375 milliliters. 13 (7)Cooler products, either wine- or malt beverage-based, in less than four-pack quantities. 14 if the Deemed AppFaved Aefivity abuts residential area-, a seen&,all May be 15 16 leeatien alld mu9t not obstruct the view of the btiildiag and parking areas ffeffl the stFeet. Vegetation 17 may be required to be planted along the soundwall to ifiapfave the appearanee . 18 (G) T. sh Re el- Pe non flammable sh ..o ptaele may be iequ fed to be 19 20 The operators o!'!he busifiess also fflay be required establishment.and&afn the sidewalk a4ifteent to the 21 22 23 (BB) Pay Telephones: Pay telephones on the site of the establishment may eithef be (i) prop shall be required to be of the type that only allow outgoing calls and shall be located in 24 a visible and well-lighted location. 25 (EC) Program: A"complaint response community relations"program established and 26 maintained by the establishment conducting the Deemed Approved Activity may be required. The program may include the following: 27 28 (1)Posting at the entry of the establishment providing the telephone number for the area commander of the local law enforcement substation to any requesting individual. 13 6\Documents and Settings%emoeno\My Documents\9-2-10 Strikeout DAO LRC recommendation doc�HPF.P^^ n-as'9 2-10 O411 0 * m,� °�, ^ °FT 9/2/10 DRAFT 1 2 (2) Coordinating efforts with the police department to monitor community complaints about the establishment activities. 3 (3)Having a representative of the establishment meet with neighbors or the applicable 4 neighborhood association on a regular basis and at their request attempt to resolve any neighborhood 5 complaints regarding the establishment. 6 (FD) Activities: If appropriate the following activities may be prohibited on the premises: pool or billiard tables,football or pinball games, arcade style video or electronic games and coin-operated 7 amusement devices. s (GE) Chilled Alcoholic Beverages: An Off-Sale Alcohol Outlet may be prohibited from 9 maintaining refrigerated or otherwise chilled alcoholic beverages on the premises. 10 (#F) Hours of Operation: In an Off-Sale Alcohol Outlet, the sale of alcoholic beverages may be I I restricted to certain hours of each day of the week unless limited further by the State of California Department of Alcoholic Beverage Control. 12 13 I IG Cu s: In Off-Sale Alcohol Outlets,the sale or distribution to the customer of paper or plastic cups in quantities less than their usual and customary packaging may be prohibited. 14 (3H) Signs: The following signs shall be required to be prominently pasted op sted in a readily 15 visible manner on an interior wall or fixture, and not on windows, in English, Spanish and the 16 predominant language of the patrons: 17 (1) "California State Law prohibits the sale of alcoholic beverages to persons under 21 years of age." 18 19 (2) "No Loitering or Public Drinking." 20 (3) "It is illegal to possess an open container of alcohol in the vicinity of this establishment." 21 I (KI) Presentation of Documents: A copy of the Conditions of Approval and the 22 California Department of Alcoholic Beverage Control license shall be required to be kept on the premises and presented to any law-C- ity eEnforcement eOffrcer or authorized state or county official 23 upon request. 24 I (W) Mitigating Alcohol Related Problems: The establishment shall be required to operate in a 25 manner appropriate with mitigating alcohol related problems that negatively impact those individuals living or working in the neighborhood including but not limited to sales to minors, the congregation of 26 individuals,violence on or near the premises, drunkenness,public urination, solicitation, drug-dealing, drug use, loud noise and litter. 27 28 (MK) Drug Paraphernalia: An Off-Sale Alcohol Outlet shall be prohibited from selling drug/tobacco paraphernalia products as defined in Health and Safety Code sections 14 C'VDocuments and Settings\hemnenoAMy DocumentsV9-2-10 Strikeout DAO LRC recommendati on.dock EMPHNOIOW'na_eesl" " Ofdin�ee Fe Deemed Appfowd.de 8/3110 r r r 9/2/10 DRAFT 1 11014.5 and 11364.5. "Drug Paraphernalia"means all equipment products and materials of any kind 2 that are used intended for use or designed for use in planting,propagating, cultivating, growing, harvesting, manufacturing, compounding, converting,producing,processing,preparing,testing, 3 analyzing,packaging,repackaging, storing, containing,concealing, injecting, ingesting, inhaling,or otherwise introducing into the human body a controlled substance in violation of the California Uniform 4 Controlled Substances Act commencing with California Health and Safety Code section 11000. 5 (NL) Loitering: The establishment's operators or employees shall be required to discourage 6 loiterers and to ask persons loitering longer than fifteen minutes to leave the area and contact local law enforcement officials for enforcement of applicable trespassing and loitering laws if persons requested 7 to leave fail to do so. 8 (AM) Security Cameras: At least two 24-hour time lapse security cameras may be required to be 9 installed and properly maintained on the exterior of the building at locations recommended by the Police Department. All criminal and suspicious activities recorded on this surveillance equipment must be 10 reported to local law enforcement. To the extent allowed by law,the establishment operators may be I I required to provide any tapes or other recording media from the security cameras to the Police Department. [Request Police Dept. input] 12 13 (42N) Security Guards: An establishment may be required to retain a specified number of security guards. The number of security guards shall vary based upon the specific facts and 14 circumstances of each establishment site and operation. All security guards shall have all required state and City permits and licenses. 15 (AO) Prohibited Vegetation: No eExterior vegetation miry shall not be planted or maintained 16 that could be used as a hiding place for persons on the premises. Exterior vegetation rrtayshall be planted 17 and maintained in a manner that minimizes its use as a hiding place. 18 (P) Window Obstructions: No more than 25% of windows or clear doors shall bear advertising 19 of anv sort. and all advertisingsiienaee shall be placed and maintained in a manner that ensures that law enforcement personnel have a clear and unobstructed view of the interior of the premises, including the 20 area in which the cash registers are maintained, from the exterior public sidewalk or entrance. 21 SECTION IX—APPEALS FROM A DETERMINATION ON AN APPLICATION FOR 22 PERMIT 23 Any applicant or other person aggrieved by a decision of the Planning Commission on an application for a Conditional Use Permit required by this Article may appeal the decision to the Mayor 24 and Common Council pursuant to Development Code Chapter 19.52. 25 SECTION X—GROUNDS FOR CONDITIONAL USE PERMIT SUSPENSION OR 26 REVOCATION 27 An alcoholic beverage sales activity establishment Conditional Use Permit may be suspended by 28 the Planning Commission for up to one year or revoked after a noticed public hearing held pursuant to 15 CADocuments and Settinys\hempcio\MN Documents\9-2-10 Strikeout DAO LRC recommcndation.doc': QfdiRmee Fe Deemed ApprovedAae °t'tt 0 LRG DRAFT 9/2/10 DRAFT I Development Code Chapter 19.52, for failure to comply with Operational Standards, training 2 requirements or conditions imposed through the Conditional Use Permit. 3 Notice of intention to suspend or revoke shall be in writing and shall state the grounds therefore. Notice shall be mailed by U.S. First-Class Mail and Certified Mail Return Receipt Requested at least 10 days before the date of the hearing. 5 SECTION XI—INVESTIGATIVE PROCEDURES OF POTENTIAL VIOLATIONS OF 6 CONDITIONS OF APPROVAL 7 The City shall appoint an Administrative Hearing Officer pursuant to San Bernardino Municipal 8 Code Chapter 9.93,to conduct hearings, make findings and determine whether violations of this Article, including the Operational Standards and Conditions of Approval, as well as whether undue negative 9 impacts or public nuisance activities have occurred, are occurring or are likely to occur in the future. The assigned Administrative Hearing Officer shall exercise all powers relating to the conduct of the 10 administrative hearing pursuant to San Bernardino Municipal Code Chapter 9.93. 11 Upon the City's receipt of a complaint from the public, Police Department, City official or any 12 other interested person that a Conditional Use Permit activity is in violation of the Operational Standards 13 and/or Conditions of Approval set forth in this Article, the following procedure shall be followed: Iq (A) A City Enforcement Officer(any Police Officer or other City Enforcement Officer as listed in San Bernardino Municipal Code Chapter 9.93) shall assess the nature of the complaint and its validity 15 by conducting an on-site observation and inspection of the premises to assess the activity's compliance 16 with Operational Standards and/or Conditions of Approval. 17 (B) If the Enforcement Officer determines that the activity is in violation of the Operational Standards and/or Conditions of Approval, the Enforcement Officer may issue an Administrative Citation 18 or an Administrative Civil Penalties Notice, which then may be subject to a hearing by the 19 Administrative Hearing Officer pursuant to San Bernardino Municipal Code Chapter 9.92 or 9.93, 20 (C)Any Administrative Citation or Administrative Civil Penalties Notice issued under this section shall be issued, processed, and enforced in compliance with all of the provisions of San 21 Bernardino Municipal Code Chapter 9.92 and 9.93, unless otherwise expressly provided by this 22 Ordinance. 23 (ED) The Administrative Hearing Officer shall determine whether the activity is in compliance with the operational standards and/or Conditions of Approval. Based on this determination, the Hearing 24 Officer may continue the Conditional Use permit status for the use in question,may impose new 25 conditions on the activity, may impose Administrative Civil Penalties pursuant to San Bernardino Municipal Code Chapter 9.93 for violations of the Operational Standards and/or Conditions of Approval 26 Brand may recommend that the Planning Commission suspend or revoke the activity's Conditional Use Permit. If the Hearing Officer determines instead to impose€H4her;new conditions on the activity, such 27 conditions shall be based upon the information then before the Hearing Officer. In reaching a 28 determination as to whether a use has violated the Operational Standards or Conditions of Approval, or as to the appropriateness of imposing additional or amended conditions on a use, recommending 16 C\Documents and Settinu%emoenoWy Documents\9-2-10 Strikeout DAO LRC recommendation.doc °r'r'0 TLRC DRAFT 9/2/10 DRAFT I suspension or revocation of a use, assessing administrative penalties, or the amount of Administrative 2 Civil Penalties to assess,the Hearing Officer may consider: 3 1. The length of time the activity has been out of compliance with the Operational Standards and/or Conditions of Approval. a 5 2. The impact of the violation of the Operational Standards and/or Conditions of Approval on the community. 6 3. Any information regarding the owner'se€-fhe aetivity=s efforts to remedy 7 the violation of the operational standards and/or Conditions of Approval. S _(BE)"Efforts to Remedy" shall include, but are not limited to: 9 1. Timely calls to the Police Department that are placed by the owner of the Deemed l0 Approved activity, his or her employees, or agents. II 2. Requesting that those persons engaging in activities causing violations of the 12 Operational Standards and or Conditions of Approval cease those activities,unless the owner of the activity, or his or her employees or agents feels that their personal safety would be threatened in making 13 that request. 14 3. Making improvements to the aetivity'ssubiect property or operations, including but not 15 limited to the installation of lighting sufficient to illuminate the area within the use's property line, the installation of security cameras,the clearing of uuebstrueted windows obstructions, the cleaning of 16 sidewalks and the abatement-geaff+tiof graffiti abated within three days. 17 (FE) If in the judgment of the Administrative Hearing Officer, the operations of the owner of the Is activity constitute a nuisance, the owner is unable or unwilling to abate the nuisance and the nuisance is 19 shown to be a threat to the public health and safety of the surrounding neighborhood, the Hearing Officer may recommend that the Planning Commission suspend or revoke the activity's Conditional Use 20 permit. All determinations, decisions, and conditions made or imposed regarding the use of a activity shall run with the land. 21 22 (f—r)The decision of the Administrative Hearing Officer shall become final and conclusive and shall not be subject to appeal to the Mayor and Common Council. Once the decision of the 23 Administrative Hearing Officer becomes final, the time in which judicial review of the decision must be sought shall be governed by California Code of Civil Procedure Section 1094.6, or other applicable 24 State Law. 25 SECTION XII—APPEAL FROM SUSPENSION OR REVOCATION OF CONDITIONAL USE 26 PERMIT 27 Any applicant or other person aggrieved by a decision of the Planning Commission from a 28 suspension or revocation of a Conditional Use Permit may appeal the decision to the Mayor and Common Council pursuant to Development Code Chapter 19.52. 17 C\Documents and Settinas\hempenoWy Documents\9-2-10 Strikeout DAO LRC recommendation.docl':T`."-F,.GO:dina ee,9 240 °""^O LRG 9/2/10 DRAFT 1 2 ARTICLE III—STANDARDS AND PROCEDURES FOR EXISTING DEEMED APPROVED ALCOHOLIC BEVERAGE SALES ACTIVITIES 3 SECTION I—PURPOSE a 5 The purposes of these regulations are to protect and promote the public health, safety, comfort, convenience,prosperity and general welfare by requiring that alcoholic beverage sales activities that are 6 legal nonconforming activities to-comply with the Deemed Approved performance standards in this Chapter and to achieve the following objectives: 7 8 (A) Protect surrounding neighborhoods from the harmful effects attributable to the sale of alcoholic beverages and to minimize the adverse impacts of nonconforming and incompatible uses. 9 (B) Encourage businesses selling alcoholic beverages to operate in a manner that is mutually 10 beneficial to other such businesses and other commercial and civic activities. 11 (C)Provide a mechanism to address problems often associated with the public consumption of 12 alcoholic beverages, such as litter, loitering, graffiti, unruly behavior and escalated noise levels. 13 (D) Ensure that businesses selling alcoholic beverages are not the source of undue public 14 nuisances in the community. 15 (E) Ensure that sites where alcoholic beverages are sold are properly maintained so that negative 16 impacts generated by these activities are not harmful to the surrounding environment in any way. 17 SECTION II—APPLICABILITY 18 The Deemed Approved alcoholic beverage sales regulations shall apply to all alcoholic beverage 19 sales activities for on-site or off-site consumption existing and operating within the City on the effective date of this ordinance. 20 SECTION III—AUTOMATIC DEEMED APPROVED STATUS 21 22 All Alcoholic Beverage Sales Commercial Activities that were Legal Nonconforming Activities, on the effective date of this ordinance, whether or not previously granted a Conditional Use Permit by 23 the City hall shall automatically become Deemed Approved Activities as of the effective date of this ordinance and shall no longer be considered Legal Nonconforming Activities. 24 25 Each deemed approved activity shall retain its Deemed Approved status as long as it complies with the performance standards of this ordinance. 26 The occurrence of any of the following shall terminate the Deemed Approved status of the 27 alcoholic beverage sales activity after notice and a hearinu in accordance with Section VI below. and 28 require the issuance of a Conditional Use Permit in order to continue the alcoholic beverage sales activity: IS C:ADocuments and Seainps\hemoenoWy DocumentsV9-2-10 Strikeout DAO LRC mcommendation.doc GF&W80 Fe 3e o 13 n 0 roan F6kFTi-9/2/10 DRAFT I 2 (A)An existing alcoholic beverage sales activity changes its activity so that ABC requires a different type of license. 3 (B)There is a substantial medi€eatien-techange of the mode or character of operation. a 5 (C) As used herein, the phrase"substantial change of the mode or character of operation" includes but is not be limited to the following: 6 1. The off-site alcoholic beverage sales activity establishment substantially increases the floor or land area or shelf space devoted to the display or sales of any alcoholic beverage. s 2. The on-site alcoholic beverage sales activity establishment substantially increases the 9 floor or land area or shelf space devoted to the display, sales or service of any alcoholic beverage. 10 3. The off-site or on-site alcoholic beverage sales activity establishment substantially I I expands the sale or service of any alcoholic beverages and/or substantially increases the number of customer seats primarily devoted to the sale or service of any alcoholic beverages. 12 4. The off-site or on-site alcoholic beverage sales activity establishment extends the hours 13 of operation. la 5. The alcoholic beverage sales activity establishment proposes to reinstate alcohol sales 15 after the ABC license has been either revoked or suspended for a period grc:.tef than n 30 days90 days or 6 rg eater by ABC. 1 17 6. The alcoholic beverage sales activity voluntarily discontinues active operation for more than 90 consecutive days or ceases to be licensed by the ABC. 18 19 (D)A substantial change inof the mode afor character of operation shall not include: 20 1. Re-establishment, restoration or repair of an existing alcoholic beverage sales activity on the same premises after the premises have been rendered totally or partially inaccessible by a riot, 21 insurrection, toxic accident or act of God, provided that the re-establishment, restoration or repair does 22 not increase the sales or service of any alcoholic beverage, extend the hours of operation of any establishment or add to the capacity, floor or land area or shelf space devoted to alcoholic beverages of 23 any establishment that sells or serves any alcoholic beverages. 24 2. Temporary closure for not more than ninety days in cases of vacation or illness or for 25 purposes of repair, renovation, or remodeling if that repair, renovation, or remodeling does not change the nature of the premises and does not increase the sales or service of any alcoholic beverage, extend 26 the hours of operation of any establishment, or add to the capacity, floor or land area, or shelf space 27 devoted to alcoholic beverages of any establishment that sells or serves any alcoholic beverages. 28 (E)Discontinuance. Once it is determined by the City that there has been a discontinuance of active operation for 90 consecutive days or a cessation of ABC licensing, it may be resumed only upon 19 CADocuments and Settings\hempeno\My Documents\9-2-10 Strikeout DAO LRC recommendation dogF 4WPr°'^`0-''-°-° sIQ 2 I 8/3l0 r F 9/2/10DRAFT 1 the granting of a Conditional Use Permit as provided in Article II. The property owner shall be notified 2 by the City of the termination of the Deemed Approved status and shall be informed of the property owner's right to appeal the City's decision to the Administrative Hearing Officer. 3 SECTION IV—DEEMED APPROVED PERFORMANCE STANDARDS 4 5 The provisions of this section shall be known as the Deemed Approved performance standards. The purpose of these standards is to control dangerous or objectionable environmental effects of 6 alcoholic beverage sales activities. These standards shall apply to all Deemed Approved alcoholic beverage sales activities that hold Deemed Approved status pursuant to this Article. 7 g An alcoholic beverage sales activity("Alcohol Outlet") shall retain its Deemed Approved status only if it conforms to all of the following Deemed Approved performance standards: 9 (A)The Alcohol Outlet shall not cause adverse effects to the health,peace or safety of persons 10 residing or working in the surrounding area. 11 (B)The Alcohol Outlet shall not jeopardize or endanger the public health or safety of persons 12 residing or working in the surrounding area. 13 (C)The Alcohol Outlet shall not allow repeated nuisance activities within the premises or in 14 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 15 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 16 violations, curfew violations, or lewd conduct. 17 (D) The Alcohol Outlet shall comply with all provisions of local, state or federal laws, 18 regulations or orders, including but not limited to those of the ABC, California Business and Professions 19 Code §§ 24200, 24200.6, and 25612.5, as well as any condition imposed on any permits issued pursuant to applicable laws, regulations or orders. This includes compliance with annual City business 20 registration fees. and annual 21 (E) The Alcohol Outlet's upkeep and operating characteristics shall be compatible with and not 22 adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood. 23 (F) hall « . ,.l . " f a a C L aii 24 beverage Yom! �Y� J expease 25 ti; t;es. A copy of these performance standards, any applicable ABC or City operating conditions, and any training requirements shall be posted in at least one prominent place within the interior of the 26 establishment where it will be readily visible and legible to the employees and patrons of the establishment. 27 28 (G) The owners and all employees of the alcohol beverage sales establishment involved in the sale of alcoholic beverages shall complete an approved course in "Responsible Beverage Sales" ((RBS) 20 CADocuments and Settings\hemneno\My Documents\9-2-10 Strikeout DAO LRC recommendation doc°''o"""^""'^^•''------`^ ^ 0 'oe Q"'1" LRG DRAFT 9/2/10 DRAFT I within 60 days of hire for employees hired after the passage of this ordinance or within six months of the 2 passage of this ordinance for existing employees. To satisfy this requirement, a certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service 3 ((CCC/RBS) or other certifying/licensing body designated by the State of California. 4 (LTT.. .J:................ ....:...nee ae fiyifies all of Sale A leehel Otal is that held n....nied A-.....aye-d 5 Status pursuant to this At4ieie shall be pfahibited ffern selling one OF fnefe of the f9ll&w* pfeduets� 6 (1) Wift. .-r distilled r :fits in eentainefs of less tl.... 750 milliliters 7 i g volume. 9 10 boales and aged at least two yeafs. II (4) Beer of malt liqeef sold individually in eantainefs of 40 euflees Of less. 12 13 greater. , 14 (6) Distilled spirits in Leal..,. ..r eentainers mailer then 375 ill'I' 15 16 (7) Ceelef pfeduets, either wifle of malt bevefage based, ift less than figuf paek quantities. 17 18 SECTION V—NOTIFICATION TO OWNERS OF ESTABLISHMENTS CONDUCTING 19 DEEMED APPROVED ACTIVITIES 20 The City's Community Development Department shall notify the owner of each Deemed Approved activity, and also, if not the same, any property owner at the address shown on the City's 21 property tax assessment records, of the activity's Deemed Approved status. The notice shall be sent by 22 U.S. First Class Mail and Certified Mail Return Receipt Requested and shall include a copy of the performance standards in this Article with the requirement that they be posted in a conspicuous and 23 unobstructed place visible from the entrance of the establishment for public review. This notice shall also provide that the activity is required to comply with all performance standards,that �s 2a fegcured and that the activity is required to comply with all other aspects of the Deemed Approved 25 regulations. Should the notice be returned, then the notice shall be sent via regular U.S. Mail. Failure of any person to receive notice given pursuant to this Article shall not affect the Deemed Approved status 26 of the activity. 27 SECTION VI - DEEMED APPROVED STATUS PROCEDURES 2s 21 C\Documents and Scttings\hempeno\My Documents\9-2-10 Strikeout DAO LRC recommendation doc°*`F"D..,-;;.NOIO:'�as'9 �..A A ..l A.... °O""^ 'fin 9/2/10 DRAFT I The City shall appoint an Administrative Hearing Officer pursuant to San Bernardino Municipal 2 Code Chapter 9.93 to conduct hearings, make findings and determine whether violations of this Article, including the Deemed Approved performance standards;or Conditions of Approval, undue negative 3 impacts or public nuisance activity, have occurred, are occurring, or are likely to occur in the future. The assigned Administrative Hearing Officer shall exercise all powers relating to the conduct of the a administrative hearing pursuant to San Bernardino Municipal Code Chapter 9.93. 5 Upon the City's receipt of a complaint from the public, Police Department, City official or any 6 other interested person that a Deemed Approved use is in violation of the performance standards set forth in this Article,the following procedure shall be followed: 8 (A)A City Enforcement Officer shall assess the nature of the complaint and its validity by conducting an on-site observation and inspection of the premises to assess the activity's compliance with 9 performance standards. 10 (B) If the Enforcement Officer determines that the Deemed Approved activity is in violation of I I the performance standards, the Enforcement Officer may issue an Administrative Citation or an Administrative Civil Penalties Notice,which then may be subject to a hearing by the Administrative 12 Hearing Officer pursuant to San Bernardino Municipal Code Chapters 9.92 or 9.93. 13 (C) Any Administrative Citation or Administrative Civil Penalties Notice issued under this 14 section shall be issued, processed, and enforced in compliance with all of the provisions of San Bernardino Municipal Code Chapter 9.92 and 9.93, unless otherwise expressly provided by this 15 Ordinance. 16 (GD) The Administrative Hearing Officer shall determine whether the Deemed Approved 17 activity is in compliance with the performance standards. Based on this determination, the Hearing Officer may continue the Deemed Approved status for the use in question, may impose Administrative t8 Civil Penalties for violations of the performance standards pursuant to San Bernardino Municipal Code 19 Chapter 9.93, may impose such reasonable conditions, including but not limited to the conditions listed in Article I1, Section VIII above as are in the judgment of the Hearing Officer necessary to ensure 20 compliance with the performance standards and may suspend or revoke the Deemed Approved activity's Deemed Approved status. If the Hearing Officer determines instead to impose further,new conditions 21 on the Deemed Approved activity, such conditions shall be based upon the information then before the 22 Hearing Officer. In reaching a determination as to whether a use has violated the performance standards, or as to the appropriateness of imposing additional or amended conditions on a use, suspending or 23 revoking a use, assessing Administrative Civil Penalties, or the amount of Administrative Civil Penalties za to assess,the Hearing Officer may consider: 25 1. The length of time the Deemed Approved activity has been out of compliance with the performance standards. 26 n 2. The impact of the violation of the performance standard(s) on the community. 28 3. Any information regarding the owner of the Deemed Approved activity's efforts to remedy the violation of the performance standard(s). 22 C:\Documents and Settines\hemmno\My Document s\9-2-10 Strikeout DAO LRC recommendation doc° ° - - - mlee Fe Deemed Approwd.da I Q" I xo n m a LRG DRAFT 9/2/10 DRAFT 1 2 (ED) "Efforts to Remedy" shall include,but are not limited to: 3 1. Timely calls to the Police Department that are placed by the owner of the Deemed Approved activity,his or her employees, or agents. 4 5 2. Requesting that those persons engaging in activities causing violations of the performance standard(s) cease those activities, unless the owner of the Deemed Approved activity, or his 6 or her employees or agents feels that their personal safety would be threatened in making that request. 7 3. Making improvements to the Deemed Approved activity's property or operations, 8 including but not limited to the installation of lighting sufficient to illuminate the area within the use's property line, the installation of security cameras, clear unobstructed windows, clean sidewalks and 9 graffiti abated within three days. to I (FE) If in the judgment of the Administrative Hearing Officer,the operations of the owner of the I I deemed Approved activity constitute a nuisance, the owner is unable to abate the nuisance and the nuisance is shown to be a threat to the public health and safety of the surrounding neighborhood,the 12 Hearing Officer may suspend or revoke the activity's Deemed Approved status. Any continued operation of the business shall require a Conditional Use Permit approved by the Planning Commission. 13 All determinations, decisions, and conditions made or imposed regarding the clse e€a-Deemed Approved 14 activity shall run with the land. 15 (GE) The decision of the Administrative Hearing Officer shall become final and conclusive and shall not be subject to appeal to the Mayor and Common Council. Once the decision of the 16 Administrative Hearing Officer becomes final as provided in this Chapter,the time in which judicial 17 review of the decision must be sought shall be governed by California Code of Civil Procedure Section 1094.6, or other applicable State Law. 18 19 ARTICLE IV- ALCOHOLIC BEVERAGE SALES ACTIVITY FEES AND PENALTIES 20 SECTION 1 ANNUAL PERANT FEES 21 (A.)T-he Mayer and Common Catmei! shall establish by feselatieR afl ap&ual tise pefink fee th 22 shall.b.e imposed an eaeh aleehelie beverage establishfnem issued a use permit pufstiant to the as of this erdineAiee, ineludifig an), new of ffiedified establishment ef deemed approved 23 24 eaeh aleahelie beverage 1 sliding seal based n) The hoar. _C......_.. ien that aleeh 1 la w bli h 25 •_, ____ - _r___-__-_ -___- ..___.._. .., .....»». ..._ �....... ... ......... 26 (2)The ."..::.ime of elee el sales at 1. establishment. 28 23 CADocuments and SettinesUlempenoWy Documents19-2-10 Strikeout DAO LRC recommendation doc°`°04PF^1^0-di st:li.. . __ I w P13110 8 9/2/10 DRAFT 1 /A\ The estimated annual Bests of the.,.alie,. ........:...,.. neeessafy te ffieftitef.....1 a of ree the epefatienal standards and other use peffflit eenditions and Fequifements f9f all establisL—ents within that lieense 3 0 (5) The estimated staff eests to bill and eelleet the ........el pefmit fee. 4 5 /B\ Billing Z and Payment! All TRRno Pcrii't fees imposed eft an eleehelie beverage establishment opefating under a use pefmit issued in the Fnannef previded feF by this efdinanee 6 1..t dey of janttai=y of eaeh year. The Fe is due and payable :......ediately,...en feeeipt and will be 7 delinquent ifnet paid NNithin 30 days ef the bill's fnailing. 8 .. (G) Ftablisli ffient of Aleehel Be.mit Fee Ae..ount. 9 (1) The Gity shall establish an "Aleahel Perfflit Fee Aeeaunt" fef the eelleetien of the fee desefibed in this Ewdinaftee. IQ Pf) Fends f e..... the n A leehel Permit Fee AeeounAn „hell he used and to «eeeye«the easy of the I 1 �..�Fends awm 12 established fe«livened eleehel establishme...ts in this e«dinane,. 13 14 «t Rl) Depe of e..pend:t..«e of fees to he vellveted. 15 16 Offleef shall submit to the Ma),E)F and !`e......en Ce....eil e fepen on the e..pend:t..«e., of the tow of .el eleehel pefmit fees evueeted 17 M\ The«epe«t shell set F«th sueh Fna,44e«,, e,.. 18 19 a. The prieritizatien of pfebleffis Fegarding C«eeme«t of the pe«fe standard.. 20 livened eleehel establisl......ents in the City. 21 b. Methods of mitigat:..e sueh problems, th«eugh pre. entie., edue t:..... ....d en f «,.e.....en of the peF fermanee stande..A.. eared:Ae.... and«e..Wations 22 v , 23 e. Thee oy ee.fie eatiou of the es to he eelleeted to s dese«:Led :-, the «e wuw u alle f 24 SECTION 11 PENALTIES 25 (A) Any person who violates, causes or permits another person to violate any provision of this 26 ordinance is guilty of either an infraction or misdemeanor. Any person convicted of either an infraction or misdemeanor under the provision of this ordinance shall be punished by a fine, imprisonment or both 27 according to Chapter 1.12 of the San Bernardino Municipal Code. 28 24 CADocuments and Settines\hemueno\Mv Documents\9-2-10 Strikeout DAO LRC recomniendntion.doel:'ENIPE�TQ�OFdiRMOeA9 240 o/,o ddo i on"^ LRG DRAFT 9/2/10 DRAFT Ll Separate Offenses for Each Day: Any violator shall be guilty of a separate offense for each 2 and every day during any portion of which any violation of any provision of these regulations is committed,continued, permitted, or caused by such violator and shall be punishable accordingly. 3 (C) Any Violation a Public Nuisance: In addition to the penalties provided in this section, any 4 use or condition caused or permitted to exist in violation of any of the provisions of these regulations 5 shall be and is declared to be a public nuisance and may be abated as such by the City. 6 (D) Iniunction as Additional Remedy: Any violation of any provision of these regulations shall be and is declared to be contrary to the public interest and shall at the discretion of the City, create a 7 cause of action for injunctive relief. s (E) Administrative Civil Penalties: In addition to any other penalties provided in this section, 9 $1,000.00 in Administrative Civil Penalties shall be imposed for each and every offense and for each and every day during any portion of which any violation of any provision of these regulations is 10 committed, continued, permitted, or caused by such violator: I (F) The City shall bill all persons liable for these Administrative Civil Penalties by mail showing 12 the itemized costs of se..1. eha-,.eabl° sen,iee and requesting payment. Payment of the penalties shall be due within thirty 30 days of the date of the bill is deposited in the Mail. If full payment is not received 13 within the required time for payment,the bill will be delinquent and all persons liable for the penalties 3 4 shall be charged interest at the maximum legal rate from the date the payment period expires and a further civil penalty in the amount of$100.00 per day. The delinquent costs may be placed as a lien 15 against the property or collected by the City in any manner authorized bylaw and are recoverable in a 16 civil action filed by the City in a court of competent jurisdiction. 17 (G) (G) Liability for Expenses: In addition to the punishment provided by law,a violator is liable for such costs,expenses and disbursements paid or incurred by the City or any of its contractors in Is correction abatement and prosecution of the violation. Re-inspection fees to ascertain compliance with 19 previously noticed or cited violations shall be charged against the owner of the establishment conducting the Deemed Approved Activity or owner of the property where the establishment is located. The 20 Enforcement Officer shall give the owner or other responsible party of such affected premises a written notice showing the itemized cost of such chargeable service and requesting payment thereof Should the 21 bill not be paid in the required time, the charges shall be placed as a lien against the property. 22 SECTION 2. This Ordinance is based upon the recitals and findings set forth above, and the 23 accompanying Staff Report and its attachments to this Ordinance, and is adopted pursuant to the authority granted to the City of San Bernardino in Article 11, Section 7 of the California Constitution, 24 and Sections34-, 40(z), and 121 of the Charter of the City of San Bernardino. 25 SECTION 3 D.........m to Section 31 ....d 121 of the !`1...t4er of the City of San Befflafdin.. this 26 OFdiaanee shall take effect immediately. 27 SECTION 34. Compliance with the California Environmental Quality Act:-. The Mayor and Common 28 Council finds that this Ordinance is not subject to the California Environmental Quality Act(CEQA) pursuant to Sections 15061(b)(3) (the activity will not result in a direct or reasonably foreseeable 25 C:ADocuments and Settin s\hem enoAM DocumentsV9-2J 0 Strikeout DAO LRC re•ommendation.doc OfdiflffieO FO Deemed Appreved.deL 8/3,110 r °AFT 9/2/10 DRAFT 1 indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in 2 Section 15378) of the CEQA Guidelines, California Code of Regulations,Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. 3 SECTION 45. Severability:: If any section, subsection, subdivision, sentence, or clause or phrase in 4 this Ordinance or any part thereof is for any reason held to be unconstitutional, invalid or ineffective by 5 any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof The Mayor and Common Council hereby 6 declares that it would have adopted each section irrespective of the fact that any one or more subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid, or 7 ineffective. 8 SECTION 5. Ordinance No. MC-1323U, adopted by the Mayor and Common Council on May 3, 2010, 9 is hereby repealed. 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26 C\Documents and Settin sg \hempeno\My Documents\9-2-10 Strikeout DAO LRC reconmsndatiou doc°: .�... - ,nay Ordinance re ° 3,'l0 T F 9/2/10 DRAFT I AN?D nQ�ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SAN 2 BERNARDINO MUNICIPAL CODE SECTION 19.06.030(2)(B)(DEVELOPMENT CODE) 3 REQUIRING A CONDITIONAL USE PERMIT FOR NEW ALCOHOLIC BEVERAGE SALES ACTIVITIES AND ESTABLISHING AUTOMATIC DEEMED APPROVED STATUS FOR LEGAL 4 NONCONFORMING ACTIVITIES AND REPEALING ORDINANCE NO. MC-1323U; 5 DECLARING 4T"IF`URGENCY T1 1E REOF AND TAKING EFFECT lNiNIEnr Ar�r v 6 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and Council of the City of San Bernardino at a meeting thereof,held on the day of 7 2010, by the following vote, to wit: 8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 9 MARQUEZ 10 11 DESJARDINS 12 BRINKER 13 SHORETT 14 KELLEY 15 JOHNSON 16 17 MC CAMMACK 18 19 Rachel Clark, City Clerk 20 The foregoing Ordinance is hereby approved this day of 2010. 21 22 23 PATRICK J. MORRIS, Mayor City of San Bernardino 24 25 Approved as to form: 26 JAMES F. PENMAN City Attorney 27 28 27 C:ADocuments and Seuing0emoenoNy DocumentsV9-2-10 Strikeout DAO LRC recommendation doc^F,`b'..,'"". .'OFd;�. "9 2-400 _,"n___-a de310