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LAW OFFICES OF DEST & BOWLER
357 West Second Street, Suite "1"
San Bernardino, California 92401
Telephone: (714)8B9-117B
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BEFORE THE MAYOR AND COMMON COUNCIL
OF THE CITY OF SAN BERNARDINO
In the Matter of the Appeal of
ROBERT SULLIVAN,
Appellant.
SUPPLEMENTAL S'l'ATEMENT TO
GROUNDS OF APPEAL
INTRODUCTORY NOTE
Despite diligent efforts on behalf of the appellant to
have prepared a transcript of the Planning Commission hearing, a
transcript will not be provided appellant until the afternoon of
January 21, 1985. Thus, the following supplement to the
previously submitted Statement of Grounds of Appeal has been
prepared without the benefit of a thorough review of the hearing
transcript. As such, it is not possible to cite, verbatim,
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Commission meeting.
certain statements made by those who spoke at the Planning
DISCUSSION
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GENERAL PRINCIPLES
Appellant is the holder of a Conditional Use Permit
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c; which allows appel~aC:> to have danJ:Jg and live entertainment ~
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the business establishment known as Rumours. Appellant does not
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have live entertainment with the exception of professional
comedians who appear on Sunday evenings. Dancing exists on the
premises with music supplied from recordings monitored by a disc-
jockey.
In order to justify a revocation of a Conditional Use
Permit the San Bernardino Municipal Code, (hereinafter referred to
as SBMC) , Section 19.78.110, as it pertains to the instant case,
requires a finding that either the permit is being or has been
exercised contrary to the conditions of such permit or the use for
which the permit approval was granted is being or has been
exercised so as to be detrimental to the public health or safety
or to constitute a nuisance. Section 19.78.110Ia)12) and (a)(3).
Findings must be made in a conditional use permit case.
Stoddard vs. Edelman, 4 Ca1.App.3d 544, B4 Ca1.Rptr. 443. The
findings must be supported by "substantial evidence". Topanqa
Association for a Scenic Community vs. County of Los Anqe1es, 11
Cal.3d 506, 113 Ca1.Rptr. B36.
Substantial evidence is a term of art and has been
referred to as evidence that is relevant and reliable. Aen st vs.
Board of Medical Quality Assurance, 110 Cal.App.3d 275, 167
Cal.Rptr. 796.
II
TORE IS NO SUBSTANTIAL EVIDENCE TO
ESTABLISH THAT THB PERMIT HAS BBBN
EXERCISBD CONTRARY TO THE CONDITIONS
IMPOSBD BY THB MAYOR AND COMMON
COUNCIL ON DBCBMBBR 5, 1983.
The Planning Staff report contains observations
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regarding comp1ian~e<tith the condi~ons.
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These observations are
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based on the report of Bill Murray, Code Compliance Officer of th
Department of Building and Safety. Mr. Murray made one inspectio
of Rumours whicQ occurred on a Friday afternoon at 2:50 p.m..
In looking at the staff observations beginning at page
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6, item 1 concludes that there is not compliance with condition 1.
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This is based on Mr. Murray's observation that no security was on
duty at 2:50 p.m.. However, this ignores the fact that, in
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Mr. Murray's report, the Chief of Police had indicated to him tha
security was only required during hours of entertainment. There
was no entertainment at 2:50 p.m. on a Friday afternoon.
With regard to item 2, Mr. Murray represents that
Lieutenant Maier advised that the Police Department had had no
calls for the past two (2) months. Significantly, the condition
imposed speaks of an agreement that shall be arranged with the
~olice Department and that signage shall be placed within the
parking area. Appropriate signage has been placed on the exterio
of the building and no evidence was submitted to indicate that th
appellant had failed to reach any agreements with the City Police
Department. The contrary appears to be the case in that
Mr. Murray's interview with the Chief of Police reveals that
specific requirements regarding security had been set forth
including having three (3) security guards during the hours of
live entertainment and requiring the security guards to be dresse
in distinctive T-shirts.
Item 3 pertains to the mechanical device on the rear
door. As will be recalled, the rear door opens to the east where
is situated the Hill Crest Apartments. The concern which led to
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this condition was that the rear
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door would
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not be opened during
hours of entertainment to preclude noise from escaping in that
fashion. Introduced at the Planning Commission hearing was a cit
of San Bernardino memorandum from Fire Prevention Specialist,
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Steven Locati, who concluded that locking of the rear door did no
violate code in that the sufficient number of emergency exits,
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with the proper distance between them, existed in the structure.
Thus, not only does the locking of the rear door comply with all
code requirements, it also eliminates the problem of the door
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at the Planning Commission hearing that he was unaware and had no
been presented with a copy of Mr. Locati's report.
Contrary to item 4, a trash program had been and
continues to be implemented by the appellant in that appellant ha
on payroll clean-up personell whose specific responsibilities
include cleaning up of the exterior premises. For reasons noted
below, Mr. Murray's observations are somewhat questionable.
with regard to item 5, a review of the conditions
imposed clearly designates that landscaping is not a condition.
With regard to item 6, all aspects of the condition
pertaining to the block wall had been deleted and were not part 0
the conditions imposed by the Mayor and Common Council. It is
apparent that Mr. Murray was not made aware of these deletions.
As suggested above, the quality of Mr. Murray's
observations has to be questioned. This is illustrated by his
observation that there are no lights for the parking lot. Based
on this observation, the planning staff concludes at page 7 that
"the requirement for lighting in the parking lot has not been met
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as lighting is insufficient". Interestingly, part of the
materials contained in the planning staff report is the
observation report of San Bernardino Police Officer, Michael
Grzonka, based on an observation of the operation of Rumours whic
S occurred on October 18, 1984, at approximately 9:30 p.m.. A
significant portion of this report as it pertains to the
particular condition appears on the second paragraph of page 2 an
states "the exterior of the parking lot was very well lit with a
very bright light located at the southeast corner of the building
overhanging on to the parking lot". From the foregoing, it is
clear that it is not reasonable to rely upon Mr. Murray's report
and its interpretation by the Planning Staff as a basis for
determining whether the appellant has complied with the condition
14 imposed by the council. In that this report and interpretation
IS represents the only evidence presented as to the compliance issue
16 it is respectfully submitted that there is no substantial
17 competent evidence to support this finding.
18 III
19 THERE IS NO SUBSTANTIAL EVIDENCE walCH
JUSTIPIES A PINDING THAT THE USE POR
20 WHICH THE PERMIT APPROVAL WAS GRANTED
IS BEING OR HAS BEEN EXERCISED SO AS
21 TO CONSTITUTE A PUBLIC NUISANCE.
22 The language of SBMC, Section 19.78.110(al(31 is
23 basically a paraphrase of the statutory definition of a nuisance.
24 (See civil Code Section 3479.1 In this same vein, the term
2S "public nuisance" in finding number 1 and the language of finding
26 number 3, i.e., detrimental to the public health and safety are
27 basically synonymous. For purposes of convenience, these finding
28 will be discussed collectively and analyzed under the concept of
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public nuisance.
Public nuisance is defined as "one which affects at the
same time an entire community or neigborhood, or any considerable
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number of persons, although the extent of the annoyance or damage
inflicted upon individuals may be unequal". Civil Code Section
3480. Thus, the term public nuisance comprehends an act or
ommission which interferes with the interest of the community or
the health, comfort and convenience of the general public.
Venuto vs. Owens-Corninq Fiberglass Corp., 22 Ca1.App.3d. 116, 99
Cal.Rptr. 350.
In deciding whether the use for which the permit
approval was granted is being exercised so as to constitute a
public nuisance, it is important to bear in mind that the permit
in this case only permits dancing and live entertainment. The
sale of alcoholic beverages and the consumption thereof within the
business premises is authorized by law and is not governed by the
terms of the Conditional Use Permit. Therefore, it is
respectfully submitted that there must be substantial evidence
that a public nuisance results from the exercise of the
dancing/entertainment aspect of the business before revocation of
the permit could be justified.
Without prior availability of the hearing transcript,
these principles cannot be contrasted against whatever evidence
was produced at the hearing. However, a review of the materials
in the staff report indicates that two of the primary items of
mention are parking and littering.
. without question, these are legitimate matters which
should be addressed. However, there still must be established a
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causal relationship between the use for which the permit was
granted and these items. Quite clearly there is no cause and
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effect connection between dancing and parking and litter problems
A business which is successful and engages in the on-
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premises sale of alcoholic beverages in this particular location
will certainly create a need for appropriate supervision over
areas of parking and littering. In this respect, it is critical
to keep in mind that the revocation of the use permit in this cas
will not, in any manner, affect the ability of this establishment
to continue with the sale of alcoholic beverages. Thus,
revocation of the permit is not a viable method to address such
concern. Indeed, if the permit was revoked, the City would no
longer have the power to impose conditions on the continued
operation of this business and the only element of control would
rest with State Alcoholic Beverage Authorities whose concern is
not with parking or littering problems.
It is clear that the appropriate remedy is for the
council to maintain control over this enterprise and impose
additional conditions on the operation of the business which are
21 venture is situated adjacent to a residential area, there must be
more responsive to the concerns expressed. When a commercial
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a balancing of the two. This principle has been repeatedly
23 recognized by the Courts in similar cases. In Anderson vs. Souza
24 38 Cal.2d 825, the Court states:
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"That reasonable inconvenience
must be suffered by owners whose
holdings are contiguous to commercial
enterprises is too well decided to
require citation of authorities."
38 Cal.2d at B44.
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This is
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further
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the policy expressed in
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consistent with
many California cases to restrict a business no more than
necessary to resolve alleged concerns.
(See McPheeters vs.
McMahon, 131 CaL.App. 418.)
Additionally, specific statutory guidance is found in
theCode of Civil Procedure Section 731(a) which reads as follows:
"Whenever any city, city and
county, or county shall have
established zones or districts
under authority of law wherein
certain manufacturing or commercial
or airport uses are expressly
permitted, except in an action to
abate a public nuisance brought in
the name of the people of the
State of California, no person or
persons, firm or corporation shall
be enjoined or restrained by the
injunctive process from the
reasonable and necessary operation
in any such industrial or
commercial zone or airport of any
use expressly permitted therein, nor
shall such use be deemed a nuisance
without evidence of the employment
of unnecessary and injurious methods
of operation. Nothing in this act
shall be deemed to apply to the
regulation and working hours of
canneries, fertilizing plants,
refineries and other similar
establishments whose operation
produce offensive odors."
Applying these well-established principles to this case,
it is clearly improper to revoke the permit. Instead, the best
solution would appear to be to impose additional conditions aimed
at specific concerns expressed.
For example, Mr. Popovich has complained of parking and
litter problems. Parking concerns can be eliminated by stationing
a security person in the southeast corner of the property which
borders the Arrowhead home. Patrons of Rumours who attempt to
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park on the premises of the Arrowhead home would be directed to
immediately move the vehicle. If this request is refused, the
vehicle would be towed. To avoid legal difficulties, Mr. Popovic
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should provide written authorization to remove vehicles
improperly parked on his premises. It should be noted that
Rumours has implemented this policy to a large extent at this
time.
In regards to litter on Mr. Popovich's property,
Mr. Sullivan has instructed his employees to pick up any and all
debris on the Arrowhead home property at the close of business
each evening. This has been done in response to Mr. Popovich
expressing that he wished the property to be cleaned each morning
rather than in the afternoon.
This same practice can be extended to other areas beyon
the premises of Rumours as necessary. Indeed, Rumours has been
cleaning the vacant lot situated on the west side of Sierra Way a
44th Street. Note that this lot is located immediately adjacent
to the "Buzz Inn", another on sale establishment with live
entertainment.
In order to avoid any misunderstanding, it should be
noted that the suggestion of imposing more specific conditions
results from a spirit of good faith and in an attempt to reach a
conclusion which is fair to all parties concerned. It should, in
no way, be construed as an acceptance of the findings of the
Planning Commission.
Summarizing the foregoing discussion, appellant
respectfully submits:
A. Based on the statutory definition of a public
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nuisance and comparing this to the statements of those who spoke
at the Planning Commission hearing, there is no substantial
evidence that the use for which the permit was granted is being
exercised so as to constitute a public nuisance;
B. There is absolutely no causal relationship
between dancing/entertainment, i.e., the use for which the permit
was granted and the matters complained of;
C. By revoking the Conditional Use Permit the Cit
will relinquish the power to impose conditions upon the operation
of Rumours;
D. There are less drastic alternative solutions t
complaints such as those expressed by Mr. Popovich, whereas
revocation has no rational relationship to such complaints; and,
E. Despite appellant's position that there is no
~ubstantia1 evidence of a finding of a public nuisance, appellant
is willing to consent to the imposition of additional reasonable
conditions such as those outlined above.
CONCLUSION
In conclusion, it is respectfully submitted that there
was no substantial evidence before the Planning Commission to
support a finding that appellant has failed to comply with the
conditions previously imposed by the council. It is further
respectfully submitted that due to the lack of any causal
relationship between dancing and the problems complained of and
the lack of any substantial evidence establishing a public
nuisance, appellant's exercise of the Conditional Use Permit is
not in violation of the provisions of SBMC Section 19.78.110.
Accordingly, it is respectfully submitted that the council should
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grant appellant's appeal and reverse the decision of the Planning
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Commission.
Dated: January 21, 1985
Respectfully Submitted:
<;.. ..0";1" LO\\'LER
E. TOBY BOWLER