HomeMy WebLinkAbout54- CUP for Alcohol Beverage Sales 1 ORDINANCE NO.
2 ORDINANCE OF THE CITY OF SAN BERNARDIFNO ADDING SUBSECTION 6
3 TO SECTION 19 .78 .050 OF THE SAN BERNARDINO 'MUNICIPAL CODE TO
SPECIFY FINDINGS TO BE MADE FOR THE ISSUAN�E OF CONDITIONAL USE
PERMITS FOR ALCOHOL BEVERAGE SALES .
4
THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
5 DO ORDAIN AS FOLLOWS:
s
SECTION 1 . Subsection 6 is hereby added to Section
7
19 .78 .050 of the San Bernardino Municipal ode to read as
8
9 follows :
10 "6 . In the granting of any Conditional Use Permit for
11 either on-sale or off-sale of alcoholic beverages , the following
12 findings must also be made:
13 A. The introduction of alcoho is beverage sales at
14 the proposed location will not pose any known significant impacts
15 to the surrounding land uses .
16 B. The introduction of alcoholic beverage sales at
17 the proposed location will not create an adverse impact on the
18 surrounding traffic pattern nor will a parl ling congestion be
19 generated .
20 C. The proposed sale of alcoholic beverages will be
21 within a development which is consistent with the objectives of
22 the elements of the City 's General Plan .
23 D . The proposed use will not contribute to an undue
24 concentration of alcohol outlets in the area .
25 E . There will be no detrimental effect on nearby
26 residentially zoned neighborhoods considering the distance of
27 alcohol outlet to residential buildings , churches , schools ,
28
11-16-87 1
1 hospitals , playgrounds , parks , or other existing alcohol
2 outlets ."
3 I HEREBY CERTIFY that the foregoing ordinance was duly
4 adopted by the Mayor and Common Council of the City of San
5 Bernardino at a meeting thereof ,
6 held on the day of , 1987 , by the
7 following vote , to wit:
8 AYES: Council Members
9
10 NAYS:
11 ABSENT:
12
13
City Clerk
14
The foregoing ordinance is hereby approved this day
15
of 1987 .
16
17
18 Mayor of the City of San Bernardino
19
Approved as to form
20 and4legal content :
21
22 Zity Attorney
23 '
,i
24
25
26
27
28
11-16-87 2
ATTACHMENT B
Assembly Bill No. 937
A lj'�
L t ,
CHAPTER 176 1 DEC
An act to add Section 23790.5 to the Business and Professions Code,
relating to alcoholic beverages.
[Approved by Governor July 22, 1987. Filed with
Secretary of State July 23, 1987.1
LEGISLATIVE COUNSEL'S DIGEST
AB 937, Condit. Alcoholic beverages.
Existing law contained in the California Constitution vests in the
state the exclusive right and power to license and regulate the
manufacture, sale, purchase, possession, and transportation of
alcoholic beverages in this state. The law provides that no retail
alcoholic beverage license shall be issued which is contrary to a valid
zoning ordinance of any county or city.
This bill would prohibit, with a specified exception, any city,
county,or city and county from adopting an ordinance or resolution
on or after January 1, 1988,prohibiting the concurrent sale of motor
vehicle fuel and beer and wine for off-sale consumption in zoning
districts where the zoning ordinance allows motor vehicle fuel and
off-sale beer and wine to be retailed on separate sites. These
provisions also would provide that on and after January 1, 1989, no
such ordinance or resolution adopted prior to May 5, 1987,shall have
any effect.
The bill would provide that the above provisions shall not prevent
a city,county,or city and county from denying permission to engage
in the concurrent retailing of motor vehicle fuel with beer and wine
for off-premises consumption pursuant to a valid conditional use
permit ordinance if the ordinance contains specified provisions.
The bill would prohibit, until January 1, 1990, establishments
engaged in the concurrent sale of motor vehicle fuel with beer and
wine for off-premises consumption from (1) displaying beer or wine
within 5 feet of the cash register unless in a permanently affixed
cooler, (2) advertising alcoholic beverages at motor vehicle fuel
islands, (3) selling alcoholic beverages from a drive-in window, (4)
displaying or selling beer and wine from an ice tub, (5) advertising
beer or wine on motor fuel islands and prohibiting self-illuminated
advertising for beer or wine on buildings or windows, or (6)
employing persons under the age of 21 to sell beer and wine between
the hours of 10 p.m. and 2 a.m.The bill would also provide that until
January 1, 1990, any establishment, defined above, which has been
found to have sold alcoholic beverages to a minor shall have its
license suspended for 72 hours.
This bill would impose a state-mandated local program by adding
new crimes since a violation of any provision of the Alcoholic
95 50
Ch. 176 —2—
Beverage Control Act is a misdemeanor.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
The people of the State of California do enact as follows:
SECTION 1. Section 23790.5 is added to the Business and
Professions Code, to read:
23790.5. (a) It is the intent of the Legislature in enacting this
section to ensure that local government shall not be preempted in
the valid exercise of its land use authority pursuant to Section 23790,
including, but not limited to, enacting an ordinance requiring a
conditional use permit. It is also the intent of the Legislature to
prevent the legislated prohibition of the concurrent retailing of beer
and wine for off-premises consumption and motor vehicle fuel where
the retailing of each is otherwise allowable.
(b) (1) No city,county,or city and county shall,by ordinance or
resolution adopted on or after January 1, 1988, legislatively prohibit
the concurrent retailing of motor vehicle fuel and beer and wine for
off-sale consumption in zoning districts where the zoning ordinance
allows motor vehicle fuel and off-sale beer and wine to be retailed
on separate sites.
(2) On and after January 1, 1989, no city, county, or city and
county ordinance or resolution adopted prior to May 5, 1987, shall
have legal effect if it legislatively prohibits the concurrent retailing
of motor vehicle fuel with beer and wine for off-sale consumption in
zoning districts where the zoning ordinance allows beer and wine
and motor vehicle fuel to be retailed on separate sites.
(3) On and after July 1, 1988, no city, county, or city and county
ordinance or resolution adopted on or after May 5, 1987, shall have
legal effect if it legislatively prohibits the concurrent retailing of
motor vehicle fuel with beer and wine for off-sale consumption in
zoning districts where the zoning ordinance allows beer and wine
and motor vehicle fuel to be retailed on separate sites.
(4) This section shall not apply to a prohibition by a city, county,
or city and county of the sale of beer and wine in conjunction with
the sale of motor vehicle fuel if that prohibition occurs as a result of
the prohibition of the combining of the sale of motor vehicle fuel
with a broader class of products or uses which includes alcoholic
beverages or beer and wine as a named or unnamed part of that
larger class, if that prohibition was enacted before August 1, 1985.
(c) Subject to the restrictions and limitations of subdivision (b),
this section shall not prevent a city, county,or city and county from
denying permission, or granting conditional permission, to an
93 90
i
i y
IAOft
I
—3— Ch. 176
individual applicant to engage in the concurrent retailing of motor
vehicle fuel with beer and wine for off-premises consumption
pursuant to a valid conditional use permit ordinance based on
appropriate health,safety,or general welfare standards contained in
the ordinance if that conditional use permit ordinance contains all of
the following:
(1) A requirement for written findings.
(2) A provision for an administrative appeal if the governing body
has delegated its power to issue or deny a conditional use permit.
(3) Procedures for notice of a hearing, conduct of a hearing, and
an opportunity for all parties to present testimony.
(4) A requirement that the findings be based on substantial
evidence in view of the whole record to justify the ultimate decision.
(d) Notwithstanding any other provision of law, establishments
engaged in the concurrent sale of motor vehicle fuel with beer and
wine for off-premises consumption shall, until January 1, 1990, abide
by the following conditions:
(1) No beer or wine shall be displayed within five feet of the cash
register or the front door unless it is in a permanently affixed cooler
as of January 1, 1988.
(2) No advertisement of alcoholic beverages shall be displayed at
motor fuel islands.
(3) No sale of alcoholic beverages shall be made from a drive-in
window.
(4) No display or sale of beer or wine shall be made from an ice
tub.
(5) No beer or wine advertising shall be located on motor fuel
islands and no self-illuminated advertising for beer or wine shall be
located on buildings or windows.
(6) Employees on duty between the hours of 10 p.m. and 2 a.m.
shall be at least 21 years of age to sell beer and wine.
The standards contained in this subdivision are minimum state
standards which do not limit local regulation otherwise permitted
under this section.
(e) Until January 1, 1990,if there is a finding that a licensee or his
or her employee has sold any alcoholic beverages to a minor at an
establishment engaged in the concurrent sale of motor vehicle fuel
with beer and wine for off-premises consumption, the alcoholic
beverage license at the establishment shall be suspended for a
minimum period of 72 hours. For purposes of Section 23790, the
effect of such a license suspension shall not constitute a break in the
continuous operation of the establishment nor a substantial change
in the mode or character of operation.
(f) The provisions of this section apply to charter cities.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because the
only costs which may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
95 110
Ch. 176 —4—
changes the definition of a crime or infraction, changes the penalty
for a crime or infraction, or eliminates a crime or infraction.
i
I
i
95 110
ATTACHMENT C
r
MEMBERS STATE CAPITOL
FRANK MILL PO BOX 942849
VICE CHAIRMAN aftfurnia ? CA 942490001
RUSTY AREIAS
WILLIAM P BAKER MIKE L''NCH
_IM COSTA PQ-NC;PAL CONS,--ANT
DOMINIC L CORTESE MANUEL HERNANDEZ
RICHARD E FLOYD Assemblg Lommiffee PRINCIPAL CONSLL7ANT
N OLAN FRIZZELLE
RAY MILLED
�%AYNE GRISHAM
E . 0 M HARRtS On 3c�._'Q CON S.._'ANT
LH
SUNNY MOJONNIER �ERI HANhA
R CHARD L MOUNTJOY (Sauernmental @rgani;ation =�"M�"" °z'
S7nN S'ATHAM
SALL'•'ANNER
C :'Sp
M;.-NE AArERS GARY A. CONDIT _
\yy(C�O�MAN JyWATERS -HAIRMAN
November, 1987
Sacramento, California
Dear Mayor:
One of the most significant pieces of legislation to be enacted by the 1987
session of the State Legislature was AB 937. AB 937 has been signed into
law by the Governor and will go into effect on January 1, 1988.
As an assemblyman, former city councilman, mayor and supervisor, I am very
concerned about the rapid proliferation of alcoholic beverage licenses in
California. AB 937 will enable the cities and counties of California to
exercise local control over the number, location and the conditions under
which alcohol can be sold in your jurisdiction. AB 937 can help you reduce
alcohol-related problems in your jurisdiction. AB 937 was designed to be a
tool in your hands in determining the kind of community in which you live.
Constitutionally, the issuance or denial of alcoholic beverages licenses
(regulation of sale of alcoholic beverages) is the sole responsibility of
the Department of Alcoholic Beverage Control (ABC) . However, Section 23790
of the Government Code states that "no retail license shall be issued . . .
contrary to a valid zoning ordinance of any county or city." Present law
clearly places the responsibility for land use policy and control on
locally elected officials.
As you can set conditions for residential and commercial development, you
can also control the conditions under which alcoholic beverages are
marketed in your communities . Many jurisdictions have found Conditional
Use Permits (CUP) an excellent tool for controlling the number of alcohol
outlets and defining the conditions under which licenses may be issued. In
actual practice, the ABC Department does not issue licenses that violate a
valid zoning ordinance. AB 937 validates local jurisdictions' land use
authority over alcohol outlets.
November, 1987
Page 2
AB 937 states:
"(c) Subject to the restrictions and limitations of subdivision
(b) , this section shall not prevent a city, county, or city
and county from denying permission, or rantin conditional
permission, to an individual applicant to engage in the
concurrent retailing of motor vehicle fuel with beer and
wine for off-premises consumption pursuant to valid
conditional use permit ordinance based on appropriate
health, safety, or general welfare standards contained in
the ordinance if that conditional use permit ordinance
contains all of the following:
(1) A requirement for written findings.
(2) A provision for an administrative appeal if the
governing body has delegated its power to issue or deny
a conditional use permit.
(3) Procedures for notice of a hearing, conduct of hearing,
and an opportunity for all parties to present testimony.
(4) A requirement that the findings be based on substantial
evidence in view of the whole record to justify the
ultimate decision."
The above paragraph spells out the ground rules by which you can control ,
permit or deny the concurrent sale of alcohol and motor fuel at the same
location. AB 937 clearly states "that local government shall not be
preempted in the valid exercise of its land use authority." AB 937 seeks
to replace the arbitrary banning of concurrent sales with a set of
reasonable conditions and procedures by which you can control the
proliferation of concurrent sale establishments in your area.
AB 937 goes even further: it establishes statewide minimum conditions that
apply to all concurrent sale establishments, whether or not your
jurisdiction regulates them. These minimum conditions were developed by
the Council on Alcohol Problems, Mothers Against Drunk Drivers, and
convenience store representatives. They are as follows:
"(1) No beer or wine shall be displayed within five feet of the
cash register or the front door unless it is in a permanently
affixed cooler as of January 1, 1988.
(2) No advertisement of alcoholic beverages shall be displayed at
motor fuel islands.
November, 1987
Page 3
(3) No sale of alcoholic beverages shall be made from a drive-in
window.
(4) No display or sale of beer or wine shall be made from an ice
tub.
(5) No beer or wine advertising shall be located on motor fuel
islands and no self-illuminated advertising for beer or wine
shall be located on buildings or windows.
(6) Employees on duty between the hours of 10 p.m. and 2 a.m.
shall be at least 21 years of age to sell beer and wine.
The standards contained in this subdivision are minimum state
standards which do not limit other local regulations otherwise
permitted under this section."
Please note the final sentence above: "The standards contained in this
subdivision are minimum state standards which do not limit local regulation
permitted under this section." Other conditions some communities may want
to consider in their CUP ordinance include:
o Minimum distance required between outlets;
o Areas in which certain types of outlets are not permitted;
o Limits on the number or concentration of outlets in certain areas;
o Recognition of high-risk settings;
o Limitation on advertising and display of alcoholic beverages;
o Banning of video game machines and/or jukeboxes, etc. , where
alcohol is sold;
o Limitation on hours of operation/limitations on shelf space;
o Requirement for security guards and other security devices on the
premises;
o Minimum parking lot lighting and fencing;
o Minimum training for sales personnel and/or security guards;
o Policies to discourage drinking outside premises.
The above list is not new. Neither is it exhaustive. Many of the above
provisions are now included in local CUPS. Your CUP will be a yardstick by
November, 1987
Page 4
which each license application will be evaluated. AB 937 states that CUPS
must be "based on appropriate health, safety or general welfare standards."
CUPS must be based on 'written findings' and "be based on substantial
evidence." Standards should be set in advance in a reasonable and
justifiable manner.
One other point, the CUP process not only applies to new applicants, it
also can be used on existing operators who change their 'mode or character
of operation.' Changes in ffmode or character of operation" is a broad
category and includes, but is not limited to, the following:
o A change in the type of alcoholic beverage license;
o A change in the physical structure of the premises;
o A change in ownership of the license; and
o A pattern of behavior in violation of state or local laws.
AB 937 is the result of an immense amount of work. A major interim hearing
was held on September 29, 1986, on the issues involved. There were four
public hearings during the legislative process. Negotiations were
conducted in good faith over the course of many months. AB 937 is
workable, it is fair, and above all , it will strengthen your ability to
have more input into the conditions under which alcoholic beverages are
sold within your community.
AB 937 is the product of hard work from a variety of organizations. For
further information, you may wish to contact the League of California
Cities at (916) 444-5790, the California Council on Alcohol Problems at
(916) 441-1844, Mothers Against Drunk Drivers at (916) 781-3860 or my
office at (916) 445-8570.
Thank you for your attention to this letter.
Sincerely,
GARY A. CONDIT, CHAIRMAN
GAC:mis