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