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HomeMy WebLinkAbout08-04-2008 Minutes CITY OF SAN BERNARDINO 300 N. "D" Street San Bernardino, CA 92418 Website: www.sbcity.org Mayor Patrick J. Morris Council Members: Esther Estrada Dennis J. Baxter Tobin Brinker Neil Derry Chas Kelley Rikke Van Johnson Wendy McCammack ~ MINUTES MAYOR AND COMMON COUNCIL AND COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO JOINT REGULAR MEETING AUGUST 4, 2008 COUNCIL CHAMBERS The joint regular meeting of the Mayor and Common Council and Community Development Commission of the City of San Bernardino was called to order by Mayor/Chairman Morris at 1:40 p.m., Monday, August 4, 2008, in the Council Chambers of City Hall, 300 North "D" Street, San Bernardino, California. Roll Call Present: Mayor/Chairman Morris; Council Members/Commissioners Estrada, Baxter, Brinker, Kelley, Johnson, McCammack; City Attorney Penman, Assistant City Manager Sassoon, City Clerk Clark. Absent: Council Member/Commissioner Derry. 1. Closed Session Pursuant to Government Code Section(s): A. Conference with legal counsel - existing litigation - pursuant to Government Code Section 54956.9(a): Richard "Scott" Moss, et al. v. City of San Bernardino, et al. - United States District Court Case No. EDCV 07-01027SGL (Opx); 08/04/2008 San Bernardino City Professional Firefi~hters, Local 891 v. City of San Bernardino; San Bernardino Fire Department, et al. - San Bernardino Superior Court Case No. CIVSS 807685; Michael Desrochers and Steve Lowes v. City of San Bernardino, et al. - San Bernardino Superior Court Case No. CIVSS 708367; Garrett Warren v. City of San Bernardino - United States District Court Case No. EDCV 08-72; Ar~ v. Johnson - San Bernardino Superior Court Case No. CIVSS 708058; White v. City of San Bernardino - San Bernardino Superior Court Case No. CIVSS 806002; COillad v. City of San Bernardino - San Bernardino Superior Court Case No. ClVSS 808602. B. Conference with legal counsel - anticipated litigation - significant exposure to litigation - pursuant to subdivision (b) (I), (2), (3) (A-F) of Government Code Section 54956.9: Claim filed by Manta Management; Inland Communities Corp. v. City of San Bernardino (Paradise Hills); One (1) case. C. Conference with legal counsel - anticipated litigation - initiation of litigation - pursuant to subdivision (c) of Government Code Section 54956.9: City of San Bernardino v. California State University D. Closed Session - personnel - pursuant to Government Code Section 54957: Director of Code Enforcement Kelli Bruhl John Wilson E. Closed session with Chief of Police on matters posing a threat to the security of public buildings or threat to the public's right of access to public services or public facilities - pursuant to Government Code Section 54957. 2 08/04/2008 F. Conference with labor negotiator - pursuant to Government Code Section 54957.6. G. Conference with real property negotiator - pursuant to Government Code Section 54956.8. City Attorney Penman announced that the following additional items would be discussed in closed session under Agenda Item No. IB: Legal advice on Agenda Item Nos. 9 and 39. Reading of Resolutions & Ordinances Deputy City Clerk Sutherland read into the record the titles of all the resolutions and ordinances on the regular agenda of the Mayor and Common Council and Community Development Commission. Invocation/Pledge of Allegiance The invocation was given by Councilwoman McCammack. The pledge of allegiance was led by Brittanny Stopani, a student at Bradley Elementary School. 2. Appointments There were no commission appointments. 3. Presentations Jim Gerstenslager, Director of Little League's Western Region Headquarters thanked the Mayor and Council for their support of this year's tournament. Coach Dave Cole, Catcher Steve Harrison, and Center Fielder Nathan Cole presented a set of tournament pins to the Mayor. Linda and Steve Sutherland and Barbara Sky joined Mayor Morris in presenting trophies to the following entries in this year's Fourth of July Parade: · "E" Street Cruizers' Classic Car & Trucks - Winner of the Best Originality Trophy · Club United of Muscoy - Winner of the Best Performance Trophy · Shab El A war and his Volunteer Fire Department and the District 43 Challenger Baseball Division - Winner of the Best Humor Trophy · The Cambodian Inland Empire Cultural Group - Winner of the Best Community Spirit Trophy 3 08/04/2008 · Danzas de Aztlan - Winner of the Best Cultural Display Trophy · Juan Polio Restaurants - Winner of the Best Use of Theme · Inland Empire Military Vehicle Preservation Association - Winner of the Special Judges Award for preserving our American History 4. Announcements Announcements were made by the Mayor, members of the Common Council, elected officials, and a representative from the Chamber of Commerce regarding various civic, community and chamber events and activities. 5. Waive Full Reading of Resolutions & Ordinances Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that full reading of the resolutions and ordinances on the regular agenda of the Mayor and Common Council and Community Development Commission, be waived. The motion carried unanimously with Derry absent. 6. Council Minutes Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that the minutes of the following meeting(s) of the Mayor and Common Council/Community Development Commission of the City of San Bernardino be approved as submitted in typewritten form: June 16, 2008; June 30,2008; and July 7, 2008. The motion carried unanimously with Derry absent. 7. Item Deleted 8. Personnel Actions Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that the personnel actions, as submitted by the Interim Chief Examiner, dated July 30, 2008, in accordance with Civil Service rules and Personnel policies adopted by the Mayor and Common Council of the City of San Bernardino, be approved and ratified. The motion carried unanimously with Derry absent. 9. ORD. MC-1278 - An ordinance of the City of San Bernardino extending a temporary moratorium on the establishment and operation of new parolee/probationer group homes, registered sex offender group homes and unlicensed group homes. FINAL READING 4 08/04/2008 Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that said ordinance be adopted. Ordinance No. MC-1278 was adopted unanimously with Derry absent. 10. RES. 2008-299 - Resolution of the City of San Bernardino repealing Resolution No. 98-310 and adopting the revised Records Retention Schedule attached as Exhibit" A". Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2008-299 was adopted unanimously with Derry absent. 11. Use of Hernandez Community Center by American Sports University Note: No backup materials were distributed. Council Member/Commissioner Estrada made a motion, seconded by Council Member/Commissioner Baxter, that the matter be continued to the Councill Commission meeting of August 6, 2008. The motion carried unanimously with Derry absent. 12. Set a Capital Improvement Program (CIP) workshop for Monday, August 18, 2008, at 5:30 p.m. in the Economic Development Agency Boardroom to review the 5-year Capital Improvement Program - Fiscal Years 2008/09 _ 2012/13 Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that a Capital Improvement Program (CIP) workshop be set for Monday, August 18, 2008, at 5:30 p.m. in the Economic Development Agency Boardroom to review the 5-year Capital Improvement Program - Fiscal Years 2008/09 - 2012/13. The motion carried unanimously with Derry absent. 13. RES. 2008-300 - Resolution of the City of San Bernardino amending Resolution No. 655 entitled, in part, "A Resolution...designating certain streets, or portions thereof as through highways..." and establishing two-way stops at the intersections of Twenty-Eighth Street at Fremontia Drive and Twenty-Ninth Street at Fremontia Drive. Council Member/Commissioner Baxter made a motion, seconded by Council M\:mber/Commissioner Brinker, that said resolution be adopted. Resolution No. 2008-300 was adopted unanimously with Derry absent. 5 08/04/2008 14. RES. 2008-313 - Resolution of the Mayor and Common Council of the City of San Bernardino awarding a contract to Kalban, Inc. for the construction of ADA access and sidewalks at various locations (SS-B 2007/08), per Project Plan No. 12295. Council Member/Commissioner Johnson stated that there's a utility pole right in the middle of the ADA sidewalk on the southeastern corner of Medical Center Drive, and he felt that it needed to be moved. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Estrada, that said resolution be adopted. Resolution No. 2008-313 was adopted unanimously with Derry absent. 15. RES. 2008-301 - Resolution of the City of San Bernardino authorizing and directing execution of a license and agreement with Inland Empire Resources Conservation District for access to Chestnut Debris Basin. Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2008-301 was adopted unanimously with Derry absent. 16. RES. 2008-302 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of an agreement relative to the selling price of tax-defaulted property located at 2255 Bessant Street, San Bernardino, proposed to be purchased from the County of San Bernardino by the San Bernardino City Unified School District. City Attorney Pemnan abstained because his wife is a member of the school board. Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2008-302 was adopted unanimously with Derry absent. 17. RES. 2008-315 - Resolution of the Mayor and Common Council of the City of San Bernardino establishing the schedule of penalties for parking violations set forth in the City of San Bernardino Municipal Code and the California Vehicle Code, and amending Part VIII of Resolution 2008-149. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that said resolution be adopted. Resolution No. 2008-315 was adopted. Ayes: Estrada, Baxter, Brinker, Johnson, McCammack. Nays: Kelley. Absent: Derry. 6 08/04/2008 18. RES. 2008-314 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of an agreement for services with and issuance of a purchase order to Westbeach Group, Inc dba West Beach Systems for the Boys & Girls Club CCTV Security System for Delmann Heights Community Center in the City of San Bernardino per RFQ F-08-23. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Baxter, that the Mayor and Common Council reject the bid of Protection One because the bid is non-responsive; that said resolution be adopted; and that the Director of Finance be authorized to amend the FY 2008/09 budget and carryover $21,720 to Account No. 001-321-5706 (Alterations and Renovations). The motion carried and Resolution No. 2008- 314 was adopted unanimously with Derry absent. 19. RES. 2008-316 - Resolution of the Mayor and Common Council of the City of San Bernardino awarding a bid for lease purchase fmancing to Koch Financial Corporation for the purchase of four (4) water-cooled air conditioners, contingency funds and contingency/temporary cooling equipment. City Attorney Penman stated that there are at least two large air-conditioning companies in town, but because of the unique nature of the cooling system in the Police Department, they were excluded from bidding on this project. Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2008-316 was adopted unanimously with Derry absent. 20. RES. 2008-303 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of a new temporary employment agreement between the City of San Bernardino and Donald Feser for the position of Disaster Coordinator. Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2008-303 was adopted unanimously with Derry absent. 21. ORD. MC-1279 - An Ordinance of the City of San Bernardino amending San Bernardino Municipal Code Section 9.90.010 of Chapter 9.90 regarding authority to arrest and issue citations. FINAL READING (Continued from July 21, 2008) 7 08/0412008 Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that said ordinance be adopted. Ordinance No. MC-1279 was adopted unanimously with Derry absent. 22. RES. 2008-304 - Resolution of the City of San Bernardino authorizing the purchase of a three year maintenance contract for the Public Safety Dispatch Center's digital voice logging recorder from NICE Systems of Uniondale, New York. Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2008-304 was adopted unanimously with Derry absent. 23. RES. 2008-305 - Resolution of the City of San Bernardino authorizing execution of an agreement with the State of California, 911 office to participate in the 911 emergency number system, the purchase of an upgrade to the City's Public Safety Answering Point (pSAP) 911 telephone system and the purchase of a five year maintenance plan for the 911 system from Verizon Communications of Thousand Oaks, California. Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2008-305 was adopted unanimously with Derry absent. 24. RES. 2008-306 - Resolution of the City of San Bernardino amending Resolution 2007-345, Section 2, B. Compensation and Section 2, Y. Holidays, between the City and Management/Confidential employees. Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2008-306 was adopted unanimously with Derry absent. 25. RES. 2008-307 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the City Manager to execute a Vendor Service Agreement and the Finance Director, or her designee, to issue a purchase order to Donegan Tree Service in the amount of $75,000 for tree maintenance service in various Landscape Maintenance Districts. Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2008-307 was adopted unanimously with Derry absent. 8 08/04/2008 26. RES. 2008-308 - Resolution authorizing the City Manager to execute Amendment No. 2 to the vendor service agreement with three (3) one-year extensions at the City's option with Applied LNG Technologies pursuant to Section 3.04.010 B-3 of the Municipal Code for the purchase of LNG fuel. Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2008-308 was adopted unanimously with Derry absent. 27. RES. 2008-309 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of an agreement and issuance of a purchase order in the amount of $238,000 by exercising its fourth and rmal year option with Rehrig Pacific Company for the purchase of automated carts for residential refuse services. Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2008-309 was adopted unanimously with Derry absent. 28. RES. 2008-310 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of an agreement and issuance of a purchase order pursuant to Section 3.04.010 B-3 of the Municipal Code in the amount of $125,200 to New West Signal for the installation of new streetlights on Parkside Drive between 30" and 34" Streets. Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2008-310 was adopted unanimously with Derry absent. 29. RES. 2008-317 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of an agreement and issuance of a purchase order in the amount of $120,000 to Zumar Industries, Inc., for the purchase of traffic signs for repair, removal, and replacement of damaged, faded and vandalized signs, and new installation of signs located throughout the City of San Bernardino. Council Member/Commissioner Kelley reported some interior illuminated signs on Kendall and Shandin Hills Drive, on "H" Street and Northpark, and some "no parking signs" on Kendall that have faded over time. Council Member/Commissioner McCammack stated that she would not support this item because there are local vendors within the County of San Bernardino that could be providing the same material at the same or at least a competitive price, which would mean that the money would be regenerated back into the community. 9 08/0412008 Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2008-317 was adopted. Ayes: Estrada, Baxter, Brinker, Kelley, Johnson. Nays: McCammack. Absent: Derry. 30. RES. 2008-311 - Resolution authorizing an agreement and increase to an interim purchase order to "Y" Tires of Los Angeles for new and recapped tires, tubes and related repair services for City vehicles and eqnipment, to be utilized by the Fleet Division pursuant to Section 3.04.010 B-3 of the Municipal Code. Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2008-311 was adopted unanimously with Derry absent. 31. RES. 2008-312 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the City Manager to execute a consultant services agreement by and between the City of San Bernardino and California Municipal Technologies, Inc., a California Corporation, for a course management registration software system pursuant to Municipal Code Section 3.04.01O.B.3, and ratifying action taken between March 31, 2008 and the date of this resolution. Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2008-312 was adopted unanimously with Derry absent. 32. An Ordinance of the City of San Bernardino adding Chapter 5.19 to the San Bernardino Municipal Code regarding prohibiting sex offenders from peddling and soliciting and repealing Section 5.04.605 regarding house-to- house solicitors. FIRST READING Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Baxter, that said ordinance be laid over for final adoption. The motion carried unanimously with Derry absent. 33. An Ordinance of the City of San Bernardino amending San Bernardino Municipal Code Chapter 12.03 (Right-of-Way Permits, Excavations and Temporary Encroachments), Section 12.03.020 (Defmitions) and adding Section 12.03.055 to establish a trench cut moratorium on newly paved public roadways. FIRST READING Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Brinker, that said ordinance be laid over for final adoption. The motion carried unanimously with Derry absent. 10 08/0412008 34. RES. 2008-318 - Resolution of the Mayor and Common Council of the City of San Bernardino ratifying the submittal of a project application for the Federal Safe Routes to School (SRTS) Program Cycle 2 Funding. Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2008-318 was adopted unanimously with Derry absent. 35. Implementation of an Anti-Graffiti Rewards Program Council Member/Commissioner Johnson stated that when this item came before the Police Ad Hoc Committee he asked them to provide the Council with information confirming that this type of program has been successful in other cities. He stated that this matter could be continued to the Council meeting of Wednesday, August 6, 2008, provided the requested information is made available to the Council prior to that meeting. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner McCammack, that the matter be continued to the Council/Commission meeting of August 6, 2008. The motion carried unanimously with Derry absent. 36. Appeal hearing regarding the decision of the City Clerk concerning delinquent transient lodging taxes owed by the Budget Lodge (Continued from June 16, 2008) City Attorney Penman advised that the City had received a settlement from the Budget Lodge in the amount of $40,000. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that the matter be tabled. The motion carried unanimously with Brinker and Derry absent. 37. An Ordinance of the City of San Bernardino adding Chapter 5.57 to the San Bernardino Municipal Code regarding scrap metal recycling. FIRST READING (Continued from July 7,2008) Note: No backup materials were distributed. Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Johnson, that the matter be continued to the Council/ Commission meeting of September 2, 2008. The motion carried unanimously with Derry absent. 11 08/04/2008 38. Norton Space and Aeronautics Academy - Reimbursement Agreement for waiver/reimbursement of fees (Continued from June 2, 2008) Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Estrada, that the Mayor and Common Council continue consideration of a reimbursement agreement to the Council/Commission meeting of December I, 2008. The motion carried unanimously with Derry absent. 39. ORD. MC-I280 - An Urgency Ordinance of the City of San Bernardino establishing a temporary moratorium on the establishment and operation of new parolee/probationer group homes, registered sex offender group homes and unlicensed group homes, declaring the urgency thereof, and taking effect immediately. URGENCY Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Brinker, that said urgency ordinance be adopted. Ordinance No. MC-I280 was adopted unanimously with Derry absent. COMMUNITY DEVELOPMENT COMMISSION Present: Mayor/Chairman Morris; Council Members/Commissioners Estrada, Baxter, Brinker, Kelley, Johnson, McCammack; City Attorney Penman, City Clerk Clark, Economic Development Agency Deputy Director Gee and Special Counsel Sabo. Absent: Council Member/Commissioner Derry. R40. RES. CDC/2008-28 - Resolution of the Community Development Commission of the City of San Bernardino, California, approving an agreement with Louis Schnepp, Dakota Management Company, Inc., and authorizing execution thereof, providing for professional real estate consultant services. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Estrada, that said resolution be adopted. Resolution No. CDC/2008-28 was adopted unanimously with Derry absent. R41. RES. CDC/2008-29 - Resolution of the Community Development Commission of the City of San Bernardino approving and authorizing the Interim Executive Director of the Redevelopment Agency of the City of San Bernardino ("Agency") to execute Amendment No.2 to the Maintenance and Operation Contract by and between the Agency and the Assistance League of San Bernardino (580 West ~ Street, San Bernardino - Central City North Redevelopment Project Area). 12 08/04/2008 Council Member/Commissioner McCammack abstained because she is a dues- paying member of the Assistance League board. She left the Council Chambers and returned after the vote was taken. Council Member/Commissioner Estrada made a motion, seconded by Council Member/Commissioner Baxter, that said resolution be adopted. Resolution No. CDC/2008-29 was adopted. Ayes: Estrada, Baxter, Brinker, Kelley, Johnson. Nays: None. Abstentions: McCammack. Absent: Derry. R42. Invoice for Water Damage Cleanup - California Theatre of the Performing Arts located at 562 West 4th Street (Central City North Redevelopment Project Area) Council Member/Commissioner Estrada made a motion, seconded by Council Member/Commissioner Baxter, that the Community Development Commission of the City of San Bernardino approve payment of an invoice in the amount of $27,308.30 to ACR Services for Water Extraction and Biological Hazard Remediation services at the California Theatre of the Performing Arts. The motion carried unanimously with Derry absent. PLANNING 43. Public Hearing - Conditional Use Permit (CUP) No. 08-03 (Appeal No. 08-02) - An appeal of the Planning Commission Denial of CUP No. 08-03, a request to obtain a Type 48 Alcoholic Beverage Control (ABC) license at 100 West Hospitality Lane (Continued from July 21,2008) Mayor/Chairman Morris opened the hearing. Terri Rahhal, Deputy Director/City Planner, stated that a Type 48 ABC license was generally referred to as a bar or nightclub license and authorized the sale of beer, wine and distilled spirits for on-site consumption. She noted that issuance of a Type 48 ABC license required a finding of Public Convenience or Necessity (PCN) from the City, which was required by the State Department of Alcoholic Beverage Control in instances where there is an undue concentration of ABC licenses in the area of the application. Ms. Rahhal stated that, as determined by the State ABC Department, an undue concentration meant that the existing ratio of ABC licenses to residents in a given census tract exceeds the County-wide ratio of ABC licenses to residents. She stated that on June 16, 2008, the Council considered a request for a PCN determination for this site and found that public convenience and necessity would not be served by a new Type 48 license issued at this location. She stated that findings were issued that Hospitality Lane is a restaurant row with many restaurants already serving alcohol to the public and that this alcohol service is 13 08/04/2008 incidental to the food service they are already providing. Ms. Rahhal stated that the Council found that any additional ABC licenses issued in this area should also be restaurant licenses. Furthermore, the Council found that issuance of an additional Type 48 license would be detrimental to the existing restaurants and other businesses in the Hospitality Lane area. Ms. Rahhal stated that without a PCN determination from the Council, the Planning Commission could not approve Conditional Use Permit (CUP) No. 08-03 as requested. She stated that in their decision to deny the CUP, the Planning Commission also considered potential nuisances that were cited in letters from surrounding property owners as well as interviews of the surrounding businesses that were conducted by the Police Department. Ms. Rahhal advised that the existing restaurants in the surrounding area have Type 41 or Type 47 ABC licenses, which do not require the PCN finding or approval by the State. She stated that a Type 41 license permits the sale of beer and wine in a restaurant and a Type 47 license permits beer, wine and distilled spirits. She added that both of these license types are issued for bona fide eating places, which meant that the establishments must serve meals at normal meal times and the gross receipts for prepared food must exceed the receipts for alcohol at the location. She stated that this appeal was a request that the Mayor and Council reconsider the PCN determination that was denied on June 16, 2008, and that the Council reverse the decision of the Planning Commission and approve CUP No. 08-03. She stated that in a subsequent letter from Mr. Diamond dated July 25, 2008, he requested either a reinstatement of a Type 48 license at this location, which did exist at the site from 1994 to 1998, or the alternative request for approval of a Type 47 license. She noted that staff had inquired about the status of past or present ABC license applications at the California Department of Alcoholic Beverage Control, and they found that Manta Management had no pending application. She stated that the previous Type 48 ABC license was granted prior to the statutory requirement for a PCN determination from the City, and it was canceled voluntarily and transferred to another location in 1998. Ms. Rahhal stated that the most recent Type 48 license application that was filed this year was withdrawn from consideration by the applicant on June 23, 2008, and so far no application for a Type 47 license has been filed with ABC. Ms. Rahhal stated that staff's recommendation on this item was that the Mayor and Council deny the appeal and uphold the Planning Commission denial of CUP No. 08-03. She advised that the recommended motion could be modified to continue this matter for consideration of additional findings that may be discussed, particularly with regard to reconsideration of the PCN determination, or the motion may be modified to direct staff to facilitate a potential future application for a Type 47 license should one be filed. 14 08/0412008 She stated that this item was continued from July 21, 2008. She stated that the appellant had not been notified of the previous hearing date and apologized to the appellant and the Council for the oversight. Council Member/Commissioner Brinker questioned whether staff would need to do more investigation or prepare a new staff report for the Council if Manta Management decided it wanted a Type 47 license instead of a Type 48 license. Ms. Rahhal stated that should a Type 47 application be made to the State, the Development Services Department would be informed. She stated that that type of application would not require a determination from the Council, but staff would need to work with ABC with regard to the requirements to convert the facility to a restaurant, which was required for a Type 47 license. She stated that there was an existing CUP on this site as a nightclub, and staff recommended that it be modified as needed in order to convert the facility to a restaurant. Council Member/Commissioner McCammack confirmed that a document from ABC was included in their backup that indicated, as of today's date, that Manta Management had withdrawn their request for a Type 48 license on June 23,2008. Roger Jon Diamond, 2115 Main Street, Santa Monica, CA, Attorney for Manta Management, stated that Ms. Rahhal acknowledged that they did not receive notice of the meeting held on July 21, 2008. He stated that she sent him a letter on July 22, 2008, stating that the appeal hearing was set for July 21, 2008, the day before she sent the letter, and she acknowledged that they did not receive "proper" notice. Mr. Diamond stated that they received "no" notice, and that is why they did not appear for the hearing on July 21,2008. He stated that on Friday, June 13, 2008, he received informal notice of the City Council meeting of June 16, 2008. On June 16, he informed the Council that they did not receive adequate notice and were not prepared; however, they did not want to delay the process so they went forward. He stated that the Council ruled against him on June 16, 2008 by determining that it would not be consistent with the Public Convenience and Necessity to have a Type 48 license issued to Manta Management to allow it to reopen as a topless facility. Mr. Diamond stated that on the following night, June 17, 2008, the Planning Commission met to consider the application for the Conditional Use Permit, and because of the City Council's action on June 16, 2008, the Planning Commission meeting on June 17, 2008, was a forgone conclusion; namely, they were bound to deny the CUP because of the Council's action on June 16, 2008. Mr. Diamond stated that on June 17, 2008, he appealed the Planning Commission decision denying the CUP back to the City Council so when they went to court they wouldn't have the City arguing to the judge that the appellant failed to exhaust his administrative remedies. 15 08/04/2008 Mr. Diamond requested that the Mayor and Council reconsider their June 16 denial of the request that they determine that the Public Convenience and Necessity would allow for this Type 48 license to be issued. He pointed out that the City is not required by the Business and Professions Code to make a determination with respect to Public Convenience and Necessity. He stated that it would have been smarter to avoid any liability and let the Department of Alcoholic Beverage Control make the decision. Mr. Diamond stated that the Budget Motel received a Type 48 license in 2002, or at least it was recommended, and he knew the argument of the City was going to be that a PCN determination was not required for motels. Mr. Diamond added that he was not aware that the Type 48 license was withdrawn on June 23, 2008, but if it was withdrawn, it would have been temporary because of the City Council's action on June 16, 2008. He stated that their first choice was for a Type 48 license, but if they couldn't get that, their second choice was for a Type 47 license. He stated that his impression is that the City would rule against Manta Management and the Flesh Club no matter what they submit. He stated that the plans that have been submitted to the City include a kitchen because the plan is for a Type 41 restaurant with adult entertainment. Mr. Diamond indicated that what the City basically is saying is that the area around Hospitality Lane is a "family area" where adult entertainment would not be permissible, and any type of application that comes before the City would be denied, which would go against the court decisions. He stated that the City cannot use the claim that Hospitality Lane is a family area and therefore no alcohol is allowed because alcohol is allowed, and Ms. Rahhal had indicated that for a Type 47 license there is no discretion as far as the City is concerned with respect to the PCN. With respect to adult entertainment, Mr. Diamond stated that staff acknowledged that there was an existing CUP and they would not have to come back to the City for another CUP since it was already allowed. He stated that the City could say that the existing CUP did not cover the exact business plan now proposed by Manta Management, which was a Type 47 restaurant with adult entertainment. He stated that if the City took that position, then they would have to come back either to get a new CUP or to get the existing CUP modified. Mr. Diamond stated that the City had to allow the Flesh Club to operate some type of business at the location, even one that included an adult component. He stated that the City was not free to revisit the entire issue because it had already gone to the courts and a ruling had been made. Mr. Diamond stated that if in fact there had been a technical withdrawal of the application, which he was not aware of, it would only have been in the face of the improper conduct of the City by not giving them adequate notice and in denying the PCN request on June 16,2008, which led to the June 17,2008 denial by the Planning Commission, and the appeal back to the City Council. He requested that the Council determine that the PCN would allow for a Type 48 license at the subject location so they would not have to go back to ABC and then go back to the City. 16 08/04/2008 In conclusion, Mr. Diamond stated that they are requesting a Type 48 determination regarding Public Convenience or Necessity. He stated that they want the Council to vacate the June 16, 2008 decision because it was linked to the concept that adult entertainment is not appropriate at the subject location, and they want the Council to reverse the decision of the Planning Commission denial of the CUP because they think the findings can and should be made that the business would be proper at the subject location given the court rulings. Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to the following individual that he would provide true and honest testimony: Troy Neptune, General Manager of the Flesh Club, stated that he reviewed City records of all the businesses that have ABC licenses and City approval for the sale of alcohol in the same census district as the Flesh Club. Two boxes of records were submitted into the record and were marked as Exhibit 1. Mr. Neptune stated that there were 27 businesses operating with ABC licenses in the same reporting district as the Flesh Club. He stated that it was his intention to operate a Type 47 restaurant and that they were going to install a kitchen regardless of the type of license. Mr. Neptune stated that the Flesh Club is still closed and could not reopen until they received approval from the City, and they are still incurring damages in the form of lost income because they have not been able to open. City Attorney Penman invited Mr. Diamond and his client to apply for a Type 47 license. Mr. Diamond stated that he did not believe that they would have to reapply and start the process all over again. He stated that nothing precluded the City Council from making a decision to approve a Type 47 license as opposed to forcing them to go back to ABC. Mr. Pemnan stated that the City of San Bernardino does not establish the procedures for the California Department of Alcoholic Beverage Control and that the State would be the one to determine whether they had to go back to ABC. He stated that he did not believe Mr. Diamond's client would have any problem getting a Type 47 license from ABC. Mr. Diamond reminded Mr. Penman that this particular proposal was for a restaurant with topless entertainment. Mr. Penman stated that he thought Mr. Diamond knew that a Type 47 license would not allow them to have topless entertainment. Mr. Empello stated that the State Alcohol Beverage Control Board rules on the applications for Type 47 licenses. He advised that according to Section 23958.4 of the State Business and Professions Code, the State makes the determination as 17 08/04/2008 to whether Public Convenience and Necessity would be served with the issuance. Mr. Empefio added that this also applied to motels. Regarding the issue of notice and whether the City gave legally adequate notice at the June 16, 2008 Council meeting, Mr. Empefio stated that there was no statutory requirement for a time period of notice for a determination of Public Convenience and Necessity. However, he stated that he believed adequate notice was given because Terri Rahhal indicated that she had given Mr. Neptune seven days notice by telephone prior to the June 16, 2008 Council meeting. Mr. Empefio recommended that the Council entertain a motion to reconsider the June 16, 2008 Council meeting determination of Public Convenience and Necessity, as requested by Manta Management. Mr. Diamond stated that notice would have to be better than a telephone call to the Manager. He stated that whether or not it was a requirement that notice be given for a hearing regarding PCN, they believe notice was required by due process. He stated that this case was different and unique because the decision that was made on June 16, 2008 was binding on the Planning Commission with respect to a public hearing that it conducted where notice was clearly required. Mr. Diamond stated that Mr. Pemnan had advised that it was not permissible to have a Type 47 license with topless entertainment, so apparently it is the position ofthe City that a Type 47 license would not apply to the Flesh Club. Mr. Diamond stated that according to Ms. Rahhal they would have to come back to the Development and Environmental Review Committee. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Kelley, that the Mayor and Common Council reconsider the June 16, 2008 Council meeting determination on whether Public Convenience or Necessity (PCN) is served by the application. The motion carried unanimously with Derry absent. Henry Empefio, Senior Deputy City Attorney, advised the Mayor and Council that the form of entertainment being proposed was completely irrelevant to their decision regarding the appeal of the CUP or the PCN fmding. He stated that the Development and Environmental Review Committee was a staff level committee made up of representatives of various departments in the City that makes independent decisions on applications and was not under the control of the Mayor and Council. Mr. Empefio stated that decisions of the DERC could be appealed to the Planning Commission, and Planning Commission decisions could be appealed to the City Council. Mr. Diamond requested that staff research any cases where Type 48 licenses have been approved and/or denied within the City. 18 08/04/2008 Lori Sassoon, Assistant City Manager, suggested continuing this matter for four weeks to September 2, 2008, in order to give staff adequate time to complete the research request. Mr. Empeiio advised that this matter should be scheduled to a time certain at 4:30 p.m., on Tuesday, September 2,2008, and he asked if Mr. Diamond would agree to waive further notice of said meeting. Mr. Diamond agreed to the date and time of said meeting, and he agreed to waive further notice. Council Member/Commissioner McCammack asked if the Flesh Club could have reopened the day the court gave them permission to do so. City Attorney Penman stated that they could have reopened, but chose not to. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Kelley, that the matter be continued to the Council/Commission meeting of Tuesday, September 2, 2008, at 4:30 p.m. The motion carried unanimously with Derry absent. 44. Public Comments Karen Kindig, 25th Street, San Bernardino, CA, spoke about the demolition of 40 homes that are being taken by the San Bernardino City Unified School District to build the Wilson II elementary school and the reuse/reclamation of those building materials. Betty Jean Long, P. O. Box 1098, San Bernardino, CA, stated that the Police Department took her to Arrowhead Regional Medical Center as a 5150. M. Diosdado, 1960 Turrill, San Bernardino, CA, spoke in support of Turrill Transitional Assistance. Dana Price, 1960 Turrill, San Bernardino, CA, stated that he has great respect for the Turrill Transitional Assistance program. Charly Hall, 2442 Lincoln, San Bernardino, CA, stated that he is a disabled veteran and in October 2005 he became homeless when the City forced him to leave his home. He added that he now resides at Turrill Transitional Assistance. Helvin Gonzalez, 1520 N. Stoddard Avenue, San Bernardino, CA, stated that for three years he and his wife have been reporting illegal activity and trash behind the lot at "E" and 15th Streets, but nothing has been done and he is fed up. 19 08/04/2008 Virginia Gonzalez, 1520 N. Stoddard Avenue, San Bernardino, CA, stated that she has been trying to deal with Code Enforcement for three years regarding the lot at 15th and "E" Streets, that borders her property. She distributed pictures to the Mayor and Council with the hope that something would be done about it. Joe Ortiz, 387 W. 25th Street, San Bernardino, CA, spoke against the political spending of taxpayers' funds and resources on Operation Phoenix. Debbi Matley, 380 W. 17th Street, San Bernardino, CA, member of the National Night Out Committee of San Bernardino, invited residents to attend the National Night Out event on August 5, 2008, at Perris Hill Park, from 4 to 8 p.m. Danny Singleton, 975 N. "D" Street, San Bernardino, CA, stated that he wanted to discuss the demolition of his building at 324 W. Highland, and the fact that he has been the victim of racism and harassment by the Code Enforcement Department. Charles Greenwood, San Bernardino, CA, City Refuse Department employee, stated that there is a serious etiquette problem in the Refuse Department. 45. Adjournment At 6:54 p.m., the meeting adjourned to 4:30 p.m., Wednesday, August 6,2008, in the Council Chambers of City Hall, to discuss personnel and budget issues. The next joint regular meeting of the Mayor and Common Council/Community Development Commission is scheduled for 1:30 p.m., Monday, August 18, 2008, in the Council Chambers of City Hall, 300 North "D" Street, San Bernardino, California. RACHEL G. CLARK City Clerk BY~~"A/;/ ./ Linda Sutherland Deputy City Clerk 20 08/04/2008