HomeMy WebLinkAbout34-City Attorney
Ch Y OF SAN BERNAR~O
. /I"r
- REQUdT FOR COUNCn. At, liON
From: Ralph H; Prince
Subject:
Business Permit Regulations
Dept: Ci ty Attorney
Date: February 7, 1986
Synopsis of Previous Council action:
At the Legislative Review Committee meeting held on February 6,
1986, the City Attorney was directed to present the proposed
Business Permit Regulations Ordinance to the Council.
Recommen<:led motion:
waive further first reading of ordinance and layover for final
adoption.
~J>~'I.~~'::_
Signatu re
Contactperson:____ Ralph H. Prince
Phone:
'i2'i'i
Supporting data attached: Yes
Ward:
N/A
FUNDING REQUIREMENTS:
Amount:
N/A
Source:
N/A
__ Finance:
Council Notes:
75-0262
Agenda Item No. c3~
CI+' OF SAN BERNARDb.O - REQUIJr FOR COUNCIL AC't10N
STAFF REPORT
.
The purpose of the subject ordinance is to improve the business
environment of the City by reducing the occurrence of acts of
sexual misconduct, illicit drug transactions, and "fencing"
activities on business premises in ~he City. Such criminal
misconduct is prohibited by the Penal Code and the Health and
Safety Code with regard to criminal acts involving sexual
misconduct and illicit drug transactions. Nuisances involving
illegal gambling, lewdness, assignation, or prostitution may be
abated under the Red Light Abatement Law, Penal Code Sections
11225, et seq., and nuisances involving selling, serving,
storing, keeping, or giving away controlled substances may be
abated and enjoined under Health and Safety Code Sections 11570,
et seq. Actions brought under the Red Light Abatement Law and
Health and Safety Code Sections 11570, et seq. regarding
controlled substances are civil in nature and are prosecuted by
the District Attorney on behalf of the public.
The proposed ordinance is another method to control such criminal
misconduct on business premises in addition to the provisions
cited above. A city ordinance which is in conflict with state
law or duplicates state law, or where it is found that state law
has occupied the field with regard to the regulation of certain
criminal conduct, is likely to be declared unconstitutional on
the ground that such an ordinance regulating such criminal
conduct is preempted by state law.
This office has issued an opinion regarding the question of
whether the City may regulate by ordinance an area already
regulated by the Department of Alcoholic Beverage Control (ABC).
The opinion indicates our City may not promulgate regulations
with regard to businesses licensed by the ABC which would
conflict with the ABC regulation of such businesses. The City
cannot regulate the manufacture, sale, purchase, possession, or
transportation of alcoholic beverages within the State. However,
said preemption by the ABC does not preclude the application of "
valid zoning regulations, e.g., requiring a conditional use
permit (CUP) for a newly licensed on-sale premises or off-sale
premises or when such ABC licenses are transferred or when there
is a change in license classification or change in the mode or
character of operation under Business and Professions Code
Section 23790. New applicants for on-sale premises licenses are
now required to file for a CUP under our existing zoning
regulations. It is proposed to expand the CUP requirement to
license transfers and changes in classification or operations.
Our opinion would allow additional permit regulation of hotels,
motels, drive-through dairies and possibly other businesses where
alcoholic beverages are not sold. Local regulation of activities
independent and distinct from the sale of liquor is generally
allowed. For example, the regulation of restaurants and dancing
in bars is permitted.
Thomas Kesling, Jr., the District Administrator for the
Department of Alcoholic Beverage Control advises that an original
license or transferred license could have conditions attached by
the ABC which are related to the protection of the health, safety
and welfare of the public. Such conditions could include
prohibiting acts of sexual misconduct, fencing activities and
drug use and trafficking on the business premises. Our CUPs
could contain conditions requiring compliance with such
conditions.
A review of the law with regard to the question of preemption in
the area proposed to be regulated indicates that a recent Supreme
Court case recognizes a legitimate need for local government to
address problems generated by business involvement in activities
that may be inimical to the health, safety and welfare of the
community (Cohen v. Cit, and countI of San Francisco, 219 Cal.
Rptr. 467, October 21, ~~~). Sim larly, an ordinance is not
transformed into a conflicting law prohibiting crime simply
because the City uses its licensing power to discourage
illegitimate activities associated with certain businesses. An
ordinance is not preempted simply because it seeks to alleviate
the burden that local enforcement of state law imposes on police
and other city officials. That objective is a sound basis for
local legislation. See, for example, Miller v. MurEhY (1983),
143 Cal.App.3d, 337, 342, 191 Cal.Rptr. /40, 143, afSO Cohen v.
The City and Countt of San Francisco, supra. Therefore, where
the sale of a1coho ic beverages is incidental and not the
principal activity of the business, it may be argued under the
Cohen case that a business such as a restaurant selling alcoholic ..
beverages may be required to obtain a permit to operate under
regulations.
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This office has contacted Deputy City Attorney Burk Deventhal who
successfully prosecuted the appeal for the City and County of San
Francisco in the landmark Cohen case, on the question of whether -
the City ordinance with regard to licensing of escort services
was completely preempted by state law. Mr. Deventhal recommended
that provision be made in our ordinance providing that each
business in operation on the effective date of the ordinance upon
application for a permit should be automatically issued a permit
without reference to any past conduct which could be used as a
ground for denial of the application, or suspension of a permit.
We concur in his recommendation. New applications for a business
permit, of course, would be processed in the usual manner
prescribed in the ordinance.
Mr. Deventhal also suggested that the ordinance not provide for
revocation but for suspension and that any such suspension should
be made on a progressive basis, e.g., first a warning, second
probation or a short suspension such as a one-month suspension,
and so on up to a maximum of a six-month suspension. It is felt
that a suspension for a period of six months would be equivalent
to a revocation, and that such a suspension would have a
sufficient deterrent effect to preclude criminal activities on
business premises. Suggestions were made that findings and other
provisions should reflect the intent of the Mayor and Common
Council under the ordinance to protect the health, safety and
welfare of the public and to improve the environment of the
business community, and to demonstrate that the primary purpose
is to discourage the occurrence of criminal activity on business
premises.
Thus, demonstrative and factual evidence to support the findings
of the Mayor and Common Council is essential. The Chief of
Police should provide such evidence for the consideration of the
Mayor and Common Council. Absent such evidence, the ordinance
could be declared arbitrary as applied to designated classes of
businesses.
In view of these recommendations, the proposed ordinance
incorporates findings of the Mayor and Common Council, appeal
procedures for applicants who are denied a permit and for the
imposition of a suspension of a business permit, the automatic
issuance of a permit to existing operating businesses, and the
suspension of a progressive basis of a license rather than a
revocation. It is our opinion that with these safeguards the
proposed ordinance has a good chance of withstanding challenge in
a court action on the issue of whether the regulation of the
occurrence of criminal activity on the premises of businesses is ..
preempted by state law.
1
ORDINANCE NO.
2 ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 5.82
TO THE SAN BERNARDINO MUNICIPAL CODE TO REQUIRE PERMITS TO
3 OPERATE CERTAIN BUSINESSES WITHIN THE CITY OF SAN BERNARDINO.
4 THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
DO ORDAIN AS FOLLOWS:
5
6 SECTION 1. Chapter 5.82 is added to the San Bernardino
7 Municipal Code to read:
8
"CHAFTER 5.82
9
BUSINESS PERMIT REGULATIONS
10 5.82.010 Findings.
11 The City of San Bernardino is endeavoring to reduce acts of
12 sexual misconduct, drug trafficking, and fencing activities
13 occurring in the City, and to improve the business environment in
14 the City. In furtherance of these goals, and to promote the
15 health, safety and welfare of the public, this chapter requires
16 regulatory permits for the purpose of ensuring that preventive
17 action is taken to curb criminal activities from occurring on
18 the business premises or from being involved with the employees
19 or business operations. The criminal activities interfere with
20 the safe operation of the businesses iri the presence of patrons
21 and visitors, and the continuance of such activities on the
22 premises will be detrimental to the health, safety and welfare
23 of the public. It is further found that such criminal activities
24 have occurred frequently and are likely to continue to occur on
25 many business premises in the City.
26 5.82.020 Permit - Required.
27 It is unlawful for any person, whether as principal or
28 agent, clerk or employee, acting personally or for any other
,
1 person, or for any corporate entity, or as an officer of any
2 company, partnership or corporation, or otherwise, to commence,
3 manage, or conduct the business of operating a hotel, motel and
4 drive-through dairy or the business of selling food or
5 refreshments, providing entertainment or other business
6 incidental or auxiliary to the operation of on- and off-sale
7 premises licensed by the State Alcoholic Beverage Control,
8 including but not limited to restaurants, bars, cafes and the
9 like, in the City, without a valid and unsuspended permit issued
10 by the City Clerk or without complying with any regulation of
11 such business imposed under or by this chapter. The operation of
12 any business regulated by this chapter without having such a
13 permit from the City to do so, or without complying with any and
14 all regulations of such business required by this chapter, shall
15 constitute a separate violation of this chapter for each and
16 every day that such business is so operated.
17 5.82.030 Permit - Application.
18 An applicant for a permit for the operation of any such
19 hotel, motel, or drive-through dairy, or other business
20 incidental or auxiliary to the sale of alcoholic beverages on
21 premises licensed by the Department of Alcoholic Beveral Control
22 (ABC) shall apply for and obtain an operator's permit. The
23 application for such permit shall be filed with the City Clerk,
24 shall be signed under penalty of perjury and shall be upon a form
25 supplied by the City Clerk. The application shall contain the
26 true names, addresses, and criminal convictions, if any (except
27 for infractions of the Vehicle Code), of the applicant and all
28 persons financially interested in the applicant's business, and
2
1 such other information as may be deemed necessary by the City
2 Clerk.
3 5.82.040 Investigation fee.
4 At the time of filing each original application, the
5 applicant shall pay to the City Clerk an application
6 investigation fee in an amount as determined by the Mayor and
7 Common Council by resolution.
8 5.82.050 Investigation.
9 The City Clerk shall refer a copy of the application to the
10 Chief of Police who shall fully investigate the applicant and the
11 facts and circumstances concerning the application submitted and
12 shall report in writing, t~ the City Clerk, his recommendations
13 and reasons therefor as to whether such operator's permit should
14 be granted or denied. The Chief of Police shall consider any
15 relevant factual material relating to such applicant, and shall
16 recommend the issuance of an operator's permit as required by
17 this chapter only upon finding that:
18 A. The applicant has no criminal or ABC case pending, nor
19 any conviction in a court of competent jurisdiction regarding any
20 offense punishable in California or oth~r competent jurisdiction
21 when the facts underlying such case or conviction indicate the
22 lack of such qualities as are essential to protect the public
.23 health, safety and welfare;
24 B. That in applicant's prior business operations, there
25 were no law enforcement problems with regard to acts of sexual
26 misconduct, illicit drug transactions, or fencing activities
27 occurring on the premises of applicant's businesses;
28 C. The applicant is not required to register under Penal
\
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1 Code Section 290 or Health and Safety Code Section 11590;
2 D. The applicant has not knowingly made any false,
3 misleading or fraudulent statement of fact in the permit
4 application process, or on any document required by the City in
5 conjunction therewith; and
6 E. The location for which the permit is sought is
7 compatible with the neighborhood and suitable for the type of
8 operation proposed, and will not pose a nuisance to the
9 neighborhood or disrupt the peace and solitude of a residential
10 area.
11 5.82.060 Exemption from investigation.
12 Each applicant engaged in an operating business on the
13 effective date of this chapter shall be granted a permit upon the
14 filing of an application and payment of the required fee. Such
15 applicants shall not be subject to denial of such permit on the
16 grounds set forth in Section 5.82.050.
17 5.82.070 Permit - Conditions.
18 The Chief of Police may impose conditions of approval deemed
19 necessary to ensure compliance with the provisions of this
20 chapter or to protect the health, safe~y and welfare of the
21 public.
22 5.82.080 Permit - Denial.
23 If the Chief of Police finds any of the facts prohibiting
24 issuance of a permit as set forth in Section 5.82.050 exist, the
25 Chief of Police shall deny the application.
26 5.82.090 Notice of decision by Chief of Police.
27 Within forty-five calendar days of the date the application
28 is filed with the City Clerk, the Chief of Police shall give
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1 written notices of his or her decision to the applicant, to the
2 City Clerk, and to any other person specifically requesting such
3 notice.
4 5.82.100 Right of appeal to Police Commission.
5 Any applicant aggrieved by the decision of the Chief of
6 Police with reference to the issuance, conditional issuance, or
7 denial of a permit may appeal therefrom by filing a written
8 notice of appeal with the City Clerk directed to the Police
9 Commission.
10 5.82.110 Notice of appeal - Time limit.
11 Any such notice of appeal shall not be valid and shall not
12 be acted upon unless filed within fifteen calendar days after the
13 date of the action or decision which is being appealed.
14 5.82.120 Notice of appeal - Contents.
15 The notice of appeal shall be in writing and shall set forth
16 (a) the specific action appealed from; (b) the specific grounds
17 of appeal; and (c) the relief or action sought from the Police
18 Commission. In the event any notice of appeal fails to set forth
19 any information required by this section, the City Clerk shall
20 return the same to the appellant with a statement of the respects.
21 in which it is deficient, and the appellant shall thereafter be
22 allowed five calendar days in which to perfect and refile his
23 notice of appeal.
24 5.82.130 Action by the City Clerk.
25 Upon the timely filing of a notice of appeal in proper form,
26 the City Clerk shall schedule the matter promptly and within
27 thirty days upon the Police Commission agenda for a hearing
28 at a subsequent meeting.
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5.82.140 Consideration by the Police Commission.
At the time of consideration of the appeal by the Police
Commission, the appellant shall present evidence limited to the
,
specific grounds of appeal and matters set forth in his notice of
appeal. The appellant shall have the burden of establishing
cause why the action appealed from should be altered, reversed or
modified. The Police Department shall have the opportunity to
answer arguments made and rebut new evidence offered, if any.
The Commission shall review the evidence, findings and record
relating to the decision or action and may, in the discretion of
the Commission, receive new or additional evidence.
5.82.150 Notification of the Police Commission's decision.
Within ten calendar days after reaching a determination on
the appeal, the Police Commission shall give written notice of
its decision to the appellant, to the City Cl~rk, and to any
other person specifically requesting such notice.
5.82.160 Suspension of operator's permit.
Upon receipt of satisfactory evidence of any of the
following grounds, the Police Commission may order a hearing to
consider the suspension of a permit isiued under this Chapter.
Said grounds are as follows:
A. The permittee, operator or an employee of the permittee
has engaged in conduct at the establishment which violates any
criminal law or ordinance, and the permittee knew, or with the
exercise of reasonable diligence should have known, of such
violation at the time it occurred. Such conduct may include,
but shall not be limited to, acts of sexual misconduct, illicit
drug transactions or fencing of personal property occurring on
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1 the premises of the business.
2 B. Permittee has made any material misstatement in the
3 application for such permit.
4 C. The permittee has failed to comply with any condition
5 imposed on the permit.
6 D. The permittee has failed to timely pay any license or
7 permit fees that are provided for under the provisions of this
8 code.
9 E. The existence of unsanitary conditions, noise,
10 disturbances or other conditions at or near the premises and
11 related to the business which causes a public nuisance, or which
12 is detrimental to the public health, safety or welfare.
13 F. For any grounds that would warrant the denial of the
14 issuance of such permit at the time of application.
15 5.82.170 Notice of hearing.
16 The permittee shall be notified in writing that a hearing
17 which may result in suspension of the permit will be held, the
18 place where the hearing will be held and the date and time
19 thereof, which shall not be sooner than ten calendar days after
20 service of such notice of hearing. All 'notices provided for in
21 this section shall be personally served upon the permittee, or by
22 leaving such notice at the place of business or residence of such
23 permittee in the presence of a competent member of the household
24 or a person apparently in charge of permittee's place of business
25 at least eighteen years of age, who shall be informed of the
26 content thereof. In the event service cannot be made in the
27 foregoing manner, then a copy of such notice shall bemailed.by
28 certified mail, return receipt requested, addressed to the last
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1 known address of such permittee at his place of business or
2 residence at least ten calendar days prior to the date of such
3 hearing. The notice shall also contain a general statement of
4 the nature of the grounds for the proposed suspension and that
5 the permittee may be represented by counsel at the hearing.
6 5.82.180 Failure to appear at the hearing.
7 In the event that the permittee, or counsel representing the
8 permittee, fails to appear at the hearing, the evidence of the
9 existence of facts which are presented and which constitute
10 grounds for suspension of the permit may be used by the Police
11 Commission as the basis of its decision.
12 5.82.190 Suspension - Designated.
13 If, after the conclusion of a hearing held to consider the
14 suspension of a permit issued under this chapter, it is
15 etermined that any of the grounds for suspension of an
16 operator's permit exist, then said permit shall be suspended for
17 one month for the first suspension; two months for the second
18 suspension; and six months for each additional suspension
19 thereof.
20 5.82.200 Notice of decision of Police Commission.
21 A copy of the decision of the Police Commission specifying
22 indings of fact and conclusions for the decisions shall be
23 urnished to the permittee or permittee's designated
24 epresentative. The decision of the Police Commission shall be
25 inal ten calendar days from the date of the action except in the
26 vent of an appeal as provided in Section 5.82.210. The effect
27 f a decision by the Police Commission shall be stayed while an
28 ppeal to the Mayor and Common Council is pending or until the
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1 time for the filing of such appeal has expired.
2 5.82.210 Right of appeal to Mayor and Common Council.
S The permittee or the Chief of Police may appeal the Police
4 Commission's decision to the Mayor and Common Council by filing a
5 written notice of appeal with the City Clerk directed to the
6 Mayor and Common Council,
7 5.82.220 Notice of appeal - Time limit.
8 Any such notice of appeal shall not be valid and shall not
9 be acted upon unless filed within ten calendar days after the
10 date of the action or decision which is being appealed.
11 5.82.230 Notice of appeal - Contents.
12 The notice of appeal shall be in writing aLd shall contain
13 the same information as set forth under Section 5.82.120.
14 5.82.240 Public hearing may be held.
15 When an appeal in the proper form has been filed with the
16 City Clerk, the City Clerk shall promptly place the appeal on the
17 Mayor and Common Council agenda for the limited purpose of
18 determining whether the Mayor and Common Council will hear the
19 appeal. The Mayor and Common Council may accept an appeal for
20 hearing when any of the following conditions exist:
21 A. The appellant was denied the opportunity to make a full
22 and complete presentation to the Police Commission.
23 B. New evidence is now available that was not available at
24 the time of the Police Commission hearing.
25 C. The Police Commission's decision was arbitrary and
26 capricious because inadequate evidence was presented to the
27 Commission to support its decision.
28 5.82.250 Schedule hearing.
9
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1 If the Mayor and Common Council determine that an appeal
2 should be heard, the appeal shall be scheduled for hearing at the
3 next regularly scheduled meeting of the Mayor and Common Council.
4 5.82.260 Permit - Duration.
5 Permits issued pursuant to this chapter shall be valid for a
6 period of one year or until suspended or abandoned.
7 5.82.270 Permit - Transfer.
8 No permit issued pursuant to this chapter shall be
9 transferable.
10 5.82.280 Severability.
11 If any section, subsection, paragraph, sentence, clause,
12 phrase, or portions of this chapter is invalid or shall be held
13 to be invalid, such invalidity shall not affect the validity of
14 the remainder."
15 I HEREBY CERTIFY that the foregoing ordinance was duly
16 adopted by the Mayor and Common Council of the City of San
17 Bernardino at a meeting thereof, held
18 on the day of , 1986, by the following
19 vote, to wit:
20 AYES: Council Members
21
22 NAYS:
23 ABSENT:
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28
City Clerk
/ / / / /
/ / / / /
/ I / / /
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1
The foregoing ordinance is hereby approved this
day
2 of
. 1986.
3
4
Mayor of the City of San Bernardino
5 Approved as to form: ,
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