HomeMy WebLinkAbout33-City Attorney
CITeOF SAN BERNARDI. - REQ~T FOR COUNCIL A.ION
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From: Ralph B. Prince
Dept: City Attorney
Date: February 28, 1986
Subject: BuBine.. brmit Ordinance
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Synopsis of Previous Council, ection:
Ordinance adding Chapter 5.82 to the San Bernardino Municipal Code
given first reading at the February 17, 1986 Council meeting. Said
ordinance is to receive final reading on March 3, 1986.
Recommen'.led motion:
Waive further
adoption,
"Jhi 1\ \
first reading of ordinance and layover for final
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Signature
Contact person:
Ralph H. Prince
Phone:
5255
Supporting data sttsched:
Yes
Ward:
N/A
FUNDING REQUIREMENTS:
Amount:
None
Source:
Finance:
Council Notes:
75.0262
33 .
Agenda Item No7'J.Id 1t/IU-7vAd
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CIT.OF SAN BERNARD. - REQ~T FOR COUNCIL Ae'ION
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STAFF REPORT
Section 5.82.050 is proposed to be modified in order that a
permit would not be denied on the mere charge of the
commission of a violation of law without a trial or due
process of law. Subsection B thereof has been amended to
relate (provide a nexus) the arrests to the operations of
the business premisesr Subsection E has been amended to
define a public nuisancer and section 5.82.160 Subsection A
is proposed to be amended to provide that the failure of
the permittee to take remedial or preventive action is a
basis for suspension of the permit. These proposed modifications
are necessary to comply with due process and first
amendment requirements.
75-0264
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ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTIONS
5.~2.050 AND 5.82.160 OF THE SAN ~ERNARDINO MUNICIPAL CODE TO
CLARIFY THE CRIMINAL CONDUCT GROUND FOR GRANTING AND SUSPENDING
dOPER! TOR '6 !'ERHIT AND TODEUIIE It !'UBLle tfUISANe!.
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THE MAYOR AND COMMON COUNCIL OF THE CITY OFSA~ ~ERNARDINO
DO ORDAIN AS FOLLOWS:
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SECTION 1. 6ec~ion 5.82.050 Subaection. At Band E of the
San Bernardino Municipal Code are amended to read as follows:
9 "A. The applicant has not been convicted of any felony or
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crime of moral turpitude or been found in violation of laws or a
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regulation in a governmental quasi-judicial proceeding ~hen the
facts underlying such proceeding or conviction show a nexus
between thp crimp or violation arle! thp particul ar business .
operations or indicatp thp lack of qualitips psspntial to protpct
the public health, safety and welfare in operations under the
permit;
B. There were not prior significant arrests or police
investigation conCErning sexual misconduct, illicit drug
transactions, "fencing" activities or related crimes occurring on
and related to the operation of the business premises of
applicant;
22 E. The location for which the permit is sought is
23 compatible with the neighborhood and suitable for the type of
24 operation proposed, and will not pose a public nuisance as
25 defined in this Code in the neighborhood or disrupt the peace and
26 soli tude of a res idential area."
27 SECTION 2. Section 5.82.160 Subsection A of the San
28 Bernardino Municipal Code is amended to read as follows:
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, ,~ 'The 'permittee, <operator 'Or amployeeof "the 'PeriDlttee- ' '~
t&S engaged in or permitted conduct at the business premises
which constitutes a felony or crime of moral turpitude, and the
permittee knew, or with ~he exercl.e'of reasonabl. dlllaence
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should have known of such criminal conduct and failed to take
remed1a1 ~r preventive action. Such conduct .ay Include, 'but
.hall not be limited to, act. of sexual misconduct, Illicit drug
transactions or "fencing" of personal property occurring on the
premises of the business."
I HEREBY CERTIFY that the f ongoing ord inancewas' duly'
adopted by the Mayor and Common Council of the City of San
Bernardino at a
meeting thereof, held
on thE'
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, 198f, hy thF fo]lovlnf
day of
vott, to wit:
AYES:
COLr.cil Members
NAYS:
ABSENT:
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City Clerk
The foregoing ordinance is hereby approved this
day
of
, 1986,
Mayor of the City of San Bernardino
Approved ag to form:'
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ORDINANCE NO.
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ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 5,82
TO THE SAN BERNARDINO HUNICIPAL CODE TO REQUIRE PERt:lYI'S TO
OPERATE CERTAIN BUSINESSES WITHIN THE CITY OF SAN BERNARDHIO.
THE MAYOR AND COHMON COUNCIL OF THE CITY OF SAN BERNARDINO
DO ORDAIN AS FOLLOWS:
6 SECTION 1, Chapter 5.82 is added to the San Bernardino
7 Municipal Code to read:
8 "CHAPTER 5.82
9 BUS INESS PERMIT REGULATIOHS
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5,82,010 Findings,
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The City of San Bernardi~o is endeavoring to reduce acts of
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sexual misconduct, drug trafficking, and"fencing'activities
occurring in the City, an~;to improve the business environment in
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the City, In furtherance of these goals, and to promote the
15 health, safety and welfare of the public, this chapter requires
16 regulatory per~its for the purpose of ensuring that preventive
17 action is taken to c:urb criminal activities from occurring on
18 the business premises or from being involved with the employees
19 or business opera;tions. The criminal activities interfere \lith
the safe operati~n of the businesses in the presence of patrons
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and visitors, ~hd the continuance of such activities on the
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premises will he detrimental to the health, safety and welfare
of the PUbli~ It is further found that such criminal activities
have occurred and are likely to continue to occur on many
business premises in the City.
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
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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 o~ 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,
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including but not limited to restaurants, bars, cafes and the
like, in the Cit)~~:~'~:~~ 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 with"ut 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
25i supplied by the City Clerk,
26i true names, addresses, and cr iminal convic tions, if any (except
27i\ for infractions of the Vehicle Code), of the applicant and all
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28, persons financially interested in the applicant's business, and
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The application shall
contain
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1 such other information as may be deemed necessary by the
2 City CI erk,
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5.82.040 Investigation fee.
4 At the time cf 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.
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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, to 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
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this chapter
only upon finding that:
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applicant has no criminal or ABC case pending, nor
A. The
19 any conviction in a court of any felony or crime of moral
20 turpitude when the facts underlying such case or conviction show
21 a nexus between the crime or case and the particular business
22 operations or indicate the lack of such qualities as are
23 essential to protect the public health, safety and welfare in
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operations under the permit;
(c ~~"Y'.)
significant law enforcement
B. There were not prior
26 problems concerning sexual misconduct, illicit drug transactions,
27 "fencing" activities or related crimes occurring on the premises
28 of applicant's businesses;
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C. The applicant is not required to register under Penal
Code Section 290 or Health and Safety Code Section 11590;
D. The applicant has not knowingly made any false,
misleading or fraudulent statement of fact in the permit
application process, or on any document required by the City in
conjunction therewith; and
~, The location for which the permit is sought is
compatible with the neighbochood and suitable for the type of
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operation proposed, and will not pose a nui~ance to the neigh-
borhood or disrupt the peace and solitude of a residential area.
5,82.060 Exemption from investigation.
Each applicant engaged in an operating business on the
effective date of this chapter shall be gcanted a permit upon the
filing of an application and payment of the required fee. Such
applicants shall not be subject to denial of such permit on the
grounds set forth in Section 5.82,050.
5.82.070 Permit - Conditions.
The Chief of Police may impose conditions of approval deemed
necessary to ensure compliance with the provisions of this
chapter or to protect the health, safety and welfare of the
public.
5.82,080 Permit - Denial.
If the Chief of Police finds any of the facts prohibiting
issuance of a permit as set forth in Section 5,82.050 exist, the
Chief of Police shall deny the application.
5.82.090 Notice of decision by Chief of Police.
Within forty-five calendar days of the date the application
is filed with the City Clerk, the Chief of Police shall give
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written notices of his or her decision to the applicant, to the
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City Clerk, and to any other person specifically requesting such
notice.
5.82.100 Right of appeal to Police Commission.
Any applicant agGrieved by the decision of the Chief of
Police with reference to the issuance, conditional issuance, or
denial of a permit may appeal therefrom by filing a written
notice of appeal with the City Clerk directed to the Police
Commission.
5.82.110 Notice of appeal - Time limit.
Any such notice of appeal shall not be valid and shall not
be acted upon unless filed within fifteen calendar days
date of the action or decision which is being appealed.
5,82.120 Notice of appeal - Contents.
The notice of appeal shall be in writing and shall set forth
(a) the specific action appealed from; (b) the specific grounds
of appeal; and (c) the relief or action sought from the Police
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 Clerk, 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 issued under this Chapter.
Said grounds are as follows:
A. The permittee, operator or employee of the permittee has
engaged in or permitted conduct at the business premises which
constitutes a felony or crime of moral turpitude, and the
25 permittee knew, or with the exercise of reasonable diligence
c\1'''''rA-
26 should have known, of such criminal conduct at the time it
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27 occurred. Such conduct may include, but shall not be limited to,
28 acts of sexual misconduct, illicit drug transactions or "fencing"
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of personal property occurring on the premises of the business.
B. Permittee has made any material misstatement in the
application for such permit.
C. The permittee has failed to comply with any condition
imposed on the permit,
D, The permittee has failed to timely pay any license or
permit fees that are provided for under the provisions of this
code.
E. The existence of unsanitary conditions, noise,
disturbances or other conditions at or near the premises and
related to the business which causes a public nuisance, or which
is detrimental to the public health, safety or welfare.
F. For any grounds that would warrant the denial of the
issuance of such permit at the time of application,
5,82.170 Notice of hearing.
The permittee shall be notified in writing that a hearing
which may result in suspension of the permit will be held, the
place where the hearing will be held and the date and time
thereof, which shall not be sooner than ten calendar days after
service of such notice of hearing. All notices provided for in
this section shall be personally served upon the permittee, or by
leaving such notice at the place of business or residence of such
permittee in the presence of a competent member of the household
or a person apparently in charge of permittee's place of business
at least eighteen years of age, who shall be informed of the
content thereof. In the event service cannot be made in the
foregoing manner, then a copy of such notice shall bemailed.by
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 determined 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 findings of fact and conclusions for the decisions shall be
23 furnished 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.
:1 The permittee or the Chief of Police may appeal the Police
Commission's decision to the Mayor and Common Council by filing a
51 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 a~d 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.
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If the Mayor and Common Council determine that an appeal
should be heard, the appeal shall be scheduled
for heari~ at the
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and C~on Council.
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3. next regularly scheduled meeting of the Mayor
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5.82,260
Permit - Duration,
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Permits issued pursuant to this chapteF' shall be valid for a
6 period of one year or until suspended o:!:>'abandoned.
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7 5.82.270 Permit - Transfer.
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No permit issued pursuant tc> this chapter shall be
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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
, 1986, by the following
day of
19 vote, to wit:
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Council Members
AYES:
22 NAYS:
23 ABSENT:
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The foregoing ordinance is hereby approved this
of
, 1986.
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day
Mayor of the City of San Bernardino
Approyed as to form:
,~~%{?
City ttorney
11
Cl1jf OF".SAN r.$ERNARDllo - REGU* FOR COUN~feu~3.
From: Ralph H. Prince
Subject: Business Permit Regulat ions
CAc\h \:..\-\,,\,'hr 5. 'DJ... -\-0 SB!\.\L
Dept: City Attorney
Date: February 7, 1986
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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.
Recommen1ed motion:
Waive further first reading of ordinance and layover for final
adoption.
Council Notes:
:-~. 1)2;)2
end ,0fJ>n ()(;H7'[(, *3'-1
VJYI:
Agenda Item No.
. :.CI1~ OF SAN BERNARD.O - REQU.T FOH COUNCIL A.ION
STAFF REPORT
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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 the 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.
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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
ha~ 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
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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 heal~h, 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. City and Count~ of San Francisco, 219 Cal.
Rptr. 467, October 21,19l:l~). Sim1larly, 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.Mur~ (1983),
143 Cal.App.3d. 337, 342, 191 Cal.Rptr. 140, 143, afSO Cohen v.
The City and County of San Francisco, supra. Therefore, where
the sale of alcoholic 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 restau~ant 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
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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.
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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 bu~inesses, 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.
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ORDINANCE NO. "
ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 5.82
TO THE SAN BERNARDINO MUNICIPAL CODE TO REQUvRE PERMITS TO
OPERATE CERTAIN BUSINESSES WITHIN THE CITY OF SAN BERNARDINO.
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THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
DO ORDAIN AS FOLLOWS:
6 SECTION 1. Chapter 5.82 is added to the San Bernardino
7 Municipal Code to read:
8 "CHAPTER 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 in the presence of patrons
21 and visitors, and the continuance of such activities on the
22 premises will be detrimental to the health, saf ety and we If are
23 of the public. It is further found that such criminal activities
24 have occurred and are likely to continue to occur on many
25 business premises ip 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
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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, and other small sales, services, and recreational
10 businesses in the City which are easily accessible from the
11 streets or alleys or have minimum or narrow street setbacks and
12 are determined by the Police Commission after a review of
13 evidence presented by the Chief of Police to be in those classes
14 of businesses which should be subject to regulation hereunder in
15 order to further the goals and promote the health, safety and
16 welfare of the public as set forth in Section 5.82.010 of this
17 Chapter, without a valid and unsuspended permit issued
18 by the City Clerk or without complying with any regulation of
19 such business imposed under or by this chapter. The operation of
20 any business regulated by this chapter without having such a
21 permit from the City to do so, or without complying with any and
22 all regulations of such business required by this chapter, shall
23 constitute a separate violation of this chapter for each and
24 every day that such business is so operated.
25 5.82.030 Permit - Application.
26 An applicant for a permit for the operation of any such
27 hotel, motel, or drive-through dairy, or other business
28 incidental or auxiliary to the sale of alcoholic beverages on
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1 premises licensed by the Department of Alcoholic Beveral Control
2 (ABC) shall apply for and obtain an operator's permit. The
3 application for such permit shall be filed with the City Clerk,
4 shall be signed under penalty of perjury and shall be upon a form
5 supplied by the City Clerk. The application shall contain the
6 true names, addresses, and criminal convictions, if any (except
7 for infractions of the Vehicle Code), of the applicant and all
8 persons financially interested in the applicant's business, and
9 such other information as may be deemed necessary by the
10 City Clerk.
11 5.82.040 Investigation fee.
12 At the time of filing each original application, the
13 applicant shall pay to the City Clerk an application
14 investigation fee in an amount as determined by the Mayor and
15 Common Council by resolution.
16 5.82.050 Investigation.
17 The City Clerk shall refer a copy of the application to the
18 Chief of Police who shall fully investigate the applicant and the
19 facts and circumstances concerning the application submitted and
20 shall report in writing, to the City Clerk, his recommendations
21 and reasons therefor as to whether such operator's permit should
22 be granted or denied. The Chief of Police shall consider any
23 relevant factual material relating to such applicant, and shall
24 recommend the issuance of an operator's permit as required by
25 this chapter only upon finding that:
26 A. The applicant has not been convicted of any felony or
27 crime of moral turpitude or been found in violation of laws or a
28 regulation in a governmental quasi-judicial proceeding when the
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1 facts underlying such proc.edina or conviction show a nexus
2 between the crime or violation and the particular business
3 operations or indicate the lack of qualities essential to
4 protect the public health, safety and welfare in operations under
5 the permit;
6 B. There were not prior significant arrests or police
7 investigation concerning sexual misconduct, illicit drug
8 transactions, "fencing" activities or related crimes occurring on
9 and related to the operation of the business premises of
10 applicant;
11 C. The applicant is not required to register under Penal
12 Code Section 290 or Health and Safety Code Section 11590;
13 D. The applicant has not knowingly made any false,
14 misleading or fraudulent statement of fact in the permit
15 application process, or on any document required by the City in
16 conjunction therewith; and
17 E. The location for which the permit is sought is
18 compatible with the neighborhood and suitable for the type of
19 operation proposed, and will not pose a public nuisance as
20 defined in this Code in the neighborhood or disrupt the peace and
21 solitude of a residential area.
22 5.82.060 Exemption from investigation.
23 Each applicant engaged in an operating business on the
24 effective date of this chapter shall be granted a permit upon the
25 filing of an application and payment of the required fee. Such
26 applicants shall not be subject to denial of such permit on the
27 grounds set forth in Section 5.82.050.
28 5.82.070 Permit - Conditions.
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1 The Chief of Police may impose conditions of approval deemed
2 necessary to ensure compliance with the provisions of this
3 chapter or to protect the health, safety and welfare of the
. public.
S 5.82.080 Permit - Denial.
6 If the Chief of Police finds any of the facts prohibiting
, issuance of a permit as set forth in Section 5.82.050 exist, the
8 Chief of Police shall deny the application.
9 5.82.090 Notice of decision by Chief of Police.
10 Within forty-five calendar days of the date the application
11 is filed with the City Clerk, the Chief of Police shall give
12 written notices of his or her decision to the applicant, to the
13 City Clerk, and to any other person specifically requesting such
14 notice.
15 5.82.100 Right of appeal to Police Commission.
16 Any applicant aggrieved by the decision of the Chief of
17 Police with reference to the issuance, conditional issuance, or
18 denial of a permit may appeal therefrom by filing a written
19 notice of appeal with the City Clerk directed to the Police
20 Commission.
21 5.82.110 Notice of appeal - Tim. limit.
22 Any such notice of appeal shall not be valid and shall not
23 be acted upon unless filed within fifteen calendar days after the
24 date of the action or decision which is being appealed.
25 5.82.120 Notice of appeal - Contents.
26 The notice of appeal shall be in writing and shall set forth
27 (a) the specific action appealed from; (b) the specific grounds
28 of appeal; and (c) the relief or action sought from the Police
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I Commission. In the event any notice of appeal fails to set forth
2 any information required by this section, the City Clerk shall
3 return the same to the appellant with a statement of the respects
4 in which it is deficient, and the appellant shall thereafter be
5 allowed five calendar days in which to perfect and refile his
6 notice of appeal.
7 5.82.130 Action by the City Clerk.
8 Upon the timely filing of a notice of appeal in proper form,
9 the City Clerk shall schedule the matter promptly and within
10 thirty days upon the Police Commission agenda for a hearing
11 at a subsequent meeting.
12 5.82.140 Consideration by the Police Commission.
13 At the time of consideration of the appeal by the Police
14 Commission, the appellant shall present evidence limited to the
15 specific grounds of appeal and matters set forth in his notice of
16 appeal. The appellant shall have the burden of establishing
17 cause why the action appealed from should be altered, reversed or
18 modified. The Police Department shall have the opportunity to
19 answer arguments made and rebut new evidence offered, if any.
20 The Commission shall review the evidence, findings and record
21 relating to the decision or action and may, in the discretion of
22 the Commission, receive new or additional evidence.
23 5.82.150 Notification of the Police Commission's decision.
24 Within ten calendar days after reaching a determination on
25 the appeal, the Police Commission shall give written notice of
26 its decision to the appellant, to the City Clerk, and to any
27 other person specifically requesting such notice.
2B 5.82.160 Suspension of operator's permit.
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1 Upon receipt of satisfactory evidence of any of the
2 following grounds, the Police Commission may order a hearing to
3 consider the suspension of a permit issued under this Chapter.
4 Said grounds are as follows:
5 A. The permittee, operator or employee of the permittee has
6 engaged in or permitted conduct at the business premises which
7 constitutes a felony or crime of moral turpitude, and the
e permittee knew, or with the exercise of reasonable diligence
9 should have known of such criminal conduct and failed to take
10 remedial or preventive action. Such conduct may include, but
11 shall not be limited to, acts of sexual misconduct, illicit drug
12 transactions or "fencing" of personal property occurring on the
13 premises of the business.
14 B. Permittee has made any material misstatement in the
15 application for such permit.
16 C. The permittee has failed to comply with any condition
17 imposed on the permit.
18 D. The permittee has failed to timely pay any license or
19 permit fees that are provided for under the provisions of this
20 code.
21 E. The existence of unsanitary conditions, noise,
22 disturbances or other conditions at or near the premises and
23 related to the business which causes a public nuisance, or which
24 is detrimental to the public health, safety or welfare.
25 F. For any grounds that would warrant the denial of the
26 issuance of such permit at the time of application.
27 5.82.170 Notice of hearing.
28 The permittee shall be notified in writing that a hearing
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1 which may result in suspension of the permit will be held, the
2 place where the hearing will be held and the date and time
3 thereof, which shall not be sooner than ten calendar days after
4 service of such notice of hearing. All notices provided for in
5 this section shall be personally served upon the permittee, or by
6 leaving such notice at the place of business or residence of such
7 permittee in the presence of a competent member of the household
8 or a person apparently in charge of permittee's place of business
9 at least eighteen years of age, who shall be informed of the
10 content thereof. In the event service cannot be made in the
11 foregoing manner, then a copy of such notice shall be mailed, by
12 certified mail, return receipt requested, addressed to the last
13 known address of such permittee at his place of business or
14 residence at least ten calendar days prior to the date of such
15 hearing. The notice shall also contain a general statement of
16 the nature of the grounds for the proposed suspension and that
17 the permittee may be represented by counsel at the hearing.
18 5.82.180 Failure to appear at the hearing.
19 In the event that the permittee, or counsel representing the
20 permittee, fails to appear at the hearing, the evidence of the
21 existence of facts which are presented and which constitute
22 grounds for suspension of the permit may be used by the Police
23 Commission as the basis of its decision.
24 5.82.190 Suspension - Designated.
25 If, after the conclusion of a hearing held to consider the
26 suspension of a permit issued under this chapter, it is
27 determined that any of the grounds for suspension of an
28 operator's permit exist, then said permit shall be suspended for
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1 one month for the first suspension; two months for the second
2 suspension; and six months for each additional suspension
3 thereof.
4 5.82.200 Notice of decision of Police Commission.
S A copy of the decision of the Police Commission specifying
6 findings of fact and conclusions for the decisions shall be
7 furnished to the permittee or permittee's designated
8 representative. The decision of the Police Commission shall be
9 final ten calendar days from the date of the action except in the
10 event of an appeal as provided in Section 5.82.210. The effect
11 of a decision by the Police Commission shall be stayed while an
12 appeal to the Mayor and Common Council is pending or until the
13 time for the filing of such appeal has expired.
14 5.82.210 Right of appeal to Mayor and Conunon Council.
15 The permittee or the Chief of Police may appeal the Police
16 Commission's decision to the Mayor and Common Council by filing a
17 written notice of appeal with the City Clerk directed to the
18 Mayor and Common Council.
19 5.82.220 Notice of appeal - Time limit.
20 Any such notice of appeal shall not be valid and shall not
21 be acted upon unless filed within ten calendar days after the
22 date of the action or decision which is being appealed.
23 5.82.230 Notice of appeal - Contents.
24 The notice of appeal shall be in writing and shall contain
25 the same information as set forth under Section 5.82.120.
26 5.82.240 Public hearing may be held.
27 When an appeal in the proper form has been filed with the
28 City Clerk, the City Clerk shall promptly place the appeal on the
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1 Mayor and Common Council agenda for the limited purpose of
2 determining whether the Mayor and Common Council will hear the
3 appeal. The Mayor and Common Council may accept an appeal for
4 hearing when any of the following conditions exist:
5 A. The appellant was denied the opportunity to make a full
6 and complete presentation to the Police Commissiol}.
7 B. New evidence is now available that was not available at
8 the time of the Police Commission hearing.
9 C.The Police Commission's decision was arbitrary and
10 capricious because inadequate evidence was presented to the
11 Commission to support its decision.
12 5.82.250 Schedule hearing.
13 If th~ Mayor and Common Council d~t~rmin~ that an app~al
14 should be heard, the appeal shall be scheduled for hearing at the
15 next regularly scheduled meeting of the Mayor and Common Council.
16 5.82.260 Permit - Duration.
17 Permits issued pursuant to this chapter shall be valid for a
18 period of one year or until suspended or abandoned.
19 5.82.270 Permit - Transfer.
20 No permit issued pursuant to this chapter shall be
21 transferable.
22 5.82.280 Severability.
23 If any section, subsection, paragraph, sentence, clause,
24 phrase, or portions of this chapter is invalid or shall be held
25 to be invalid, such invalidity shall not affect the validity of
26 the remainder."
27 SECTION 2. Urgency.
28 This ordinance is an emergency measure which shall be
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1 operative and take effect upon the date of its adoption and
2 approval. The facts constituting such emergency are as follows:
3 The Chief of Police reports that drug trafficking and use,
4 prostitution, receiving stolen property, and related crimes and
5 alleged activities incidental to or dependent upon such crimes
6 are frequently and openly occurring in hotels, motels, drive-in
7 dairies, bars, restaurants and places of business in this
8 community. The Mayor's Drug Abuse Task Force, comprised of
9 representatives of the public, local" governments, law enforcement
10 and the criminal justice system, has studied the increased
11 occurrence of such crimes and their deleterious consequences and
12 has recommended solutions, including this ordinance.
13 The Police Department has intensified its efforts to
14 investigate crimes involving the illegal use of narcotics and
15 have arrested suspects violating the law or in possession of or
16 peddling narcotics. Often, the above business premises are used
17 for the commission of such crimes with the knowledge or
18 cooperation of the owners, managers or employees of the business,
19 making the investigation or detection of crime difficult if not
20 impossible. The business environment is being threatened.
21 Danger to patrons, customers and the public from such criminal
22 activity has become increasingly apparent. The threat to the
23 public peace, safety and welfare mandates immediate action.
24 I HEREBY CERTIFY that the foregoing ordinance was duly
25 adopted by the Mayor and Common Council of the City of San
26 Bernardino at a meeting thereof, held
27 on the day of , 1986, by the following
28 vote, to wit:
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City Clerk
The foregoing ordinance is hereby approved this
of , 1986.
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AYES:
NAYS:
ABSENT:
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Council Members
day
Approved as to form:
Mayor of the City of San Bernardino
City Attorney
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