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CITY OF SAN BERNARD16a - REQUE..r FOR COUNCIL ACI wON
u eCt:
From: R. Ann Siracusa - ��._ ����,,���, �, Amendment to Text No . 87-7
Director of Planning
Dept: planning (, ,` Mayor and Council Meeting of
February 15 , 1988 , 2 :00 p.m.
Date: February 3 , 1988
Synopsis of Previous Council action:
Previous Planning Commission action:
At the meeting of the Planning Commission on January 26 , 1988 , the
following recommendation was made:
The proposed Amendment to Text No . 87-7 , to amend the San Bernardino
Municipal Code Section 19 .78 to incorporate findings of fact for
Conditional Use Permits for alcohol sales , was unanimously recom-
mended for approval .
Recommended motion:
Waive first reading and put over for adoption Amendment to Text 87-7
amending Section 19 .78 of the Municipal Code .
AA MA
Signature R. Ann Siracusa
Contact person: R. ANN SIRACUSA Phone: 384-5357
Supporting data attached: Staff Report Ward: City-wide
FUNDING REQUIREMENTS: Amount:
Source: (Acct No.)
(Acct Description)
Finance:
Council Notes:
CITY OF SAN BERNARDINO -- MEMORANDUM
To The Planning Commission From The Planning Department
Amendment to Text No . 87-7
Subject Amendment to S.B.M.C . Section 19 .78 . 050 - Date January 26 , 1988
Findings for Alcoholic Beverage Sales
Approved Agenda Item No. 5 Date
1 . REQUEST
The request is to amend the text of the Zoning Ordinance to
require additional Conditional Use Permit findings for either
on-sale or off-sale of alcoholic beverages . The proposed
language is shown in Attachment A.
2 . MUNICIPAL_CODE
Sections 19 .26 , 19 .28 , 19 .30 , 19 .32 , and 19 .34 of the San
Bernardino Municipal Code permit on-sale and off-sale alcohol
outlets in all commercial zone districts by Conditional Use
Permit .
Section 19 . 78 of the San Bernardino Municipal Code estab-
lishes the procedures and findings required for Conditional
Use Permits .
3 . CROA STATUS
This ordinance was reviewed by the Environmental Review
Committee on December 17 , 1987 and was determined to be
exempt under CEQA.
4 . BACKGROUND
On October 20 , 1.987 , the Planning Commission adopted a
Resolution of Intention to amend the Zoning Code to add
specific findings for alcohol CUP ' s because the required CUP
findings do not address the specific issues related to
alcohol uses.
There has been a growing concern at the state and local level
regarding the proliferation of alcoholic beverage licenses
and , particularly, the sale of alcoholic beverages in con-
junction with gasoline sales. As a result of this concern,
considerable attention has been given to the issue by the
California Legislature and this year AB 937 was signed into
law (Attachment B) .
Constitutionally , the issuance or denial of alcoholic bever-
ages licenses (regulation of sale of alcoholic beverages) is
the sole responsibility of the Department of Alcoholic
Beverage Control (ABC) . However , Section 23790 of the
Government Code states that "no retail license shall be
issued . . . contrary to a valid zoning ordinance of any
City of San Bernardino
Memorandum to the Planning Commission - January 5 , 1988
Amendment to S .B.M.C. Section 19 .78.050 - Findings for CUP ' s
for Alcoholic Beverage Sales
Page 2
county or city . " Present law clearly places the responsi-
bility for land use policy and control on local government .
As the City can set conditions for residential and commercial
development , we can also control the conditions under which
alcoholic beverages are marketed . Many jurisdictions find
Conditional Use Permits (CUP' s) an excellent tool for con-
trolling the number of alcohol outlets and defining the
conditions under which licenses may be issued . In actual
practice, the ABC Department does not issue licenses that
violate a valid zoning ordinance .
In a memorandum dated November 3 , 1987 the San Bernardino
Police Department states that the City currently has 452 ABC
licenses (249 on-sale , 203 off-sale) . Further , the merio
contends that " it has long been argued that there is a
correlation between the number and location of ABC. licenses
and crime. Although there has been a 'Lack of scientific
study in regards to the magnitude of the correlation , eat-
ing statistical data seems to indicate that it exists. "
5 . ANALYSIS
The current findings required by the Code for Conditional. Use
Permits (Attachment C) do not address all. of the specific
issues which arise in relation to alcohol outlets .
In particular , where such an outlet is adjacent to or within
a short distance of residential uses , the issues that ariF,E
in public hearings seem to focus on crime, loitering , secur-
ity , noise , litter , vandalism, traffic congestion, and
parking overflow.
AB 937 establishes statewide minimum conditions that will
apply to concurrent Gales of alcohol and gasoline , as
follows:
1 . No beer or wine shall be displayed within five feet
of the cash register or the front door unless it is
in a permanently affixed cooler as of January 1 ,
1988 .
2 . No advertisement of alcoholic beverages shall he
displayed at motor fuel islands .
3 . No sale of alcoholic beverages shall be made from a
drive-in window.
City of San Bernardino
Memorandum to the Planning Commission - January 5 , 1988
Amendment to S.B.M.C. Section 19 .78 .050 - Findings for CUP ' s
for Alcoholic Beverage Sales
Page 3
4 . No display or sale of beer or wine sliall. be made
from an ice tub.
5 . No beer or wine advertising shall be located on
motor fuel islands and no self-illuminated adver
tising for beer or wine shall be located on build-
ings or windows .
6 . Employees on duty between the hours of 10 : 00 p.m.
and 2: 00 a.m. shall be at least 21 years of age to
sell beer and wine .
Overconcentration of such outlets tends to impact neighbor-
hoods, both residential and commercial. Title 4 of the
Department of Alcoholic Beverage Control Code , Section 61 .3
defines undue concentration as "a crime reporting district
which has a 20% greater number of reported crimes . . . than
the average number of reported crimes from all crime report-
ing districts within the jurisdiction .
The ABC Code, Section 61 . 4 , also addresses proximity of
alcohol. outlets to residences and does not permit new outlet_
or the outlet' s parking lot within 100 feet .
6 . COMMENTS_ RECEIVED
The report was distributed to AM-PM Mini Markets, Shell Oil
Company, 7-11 , Circle K, and Stop-N-Go Markets . No comments
have been received at the time of this writing .
7 . CONCLUSION
There are additional considerations regarding alcohol CUP ' s
which are appropriate in making such decisions and which
should be addresed in findings .
8. RECOMMENDATIgil
Adopt Amendment to Text No. 87-7 amending Section 19 .78.050
of the San Bernardino Municipal Code to add subsection 6
City of San Bernardino
Memorandum to the Planning Commission - January 5 , 1988
Amendment to S.B.M.C. Section 19 .78.050 - Findings for CUP ' s
for Alcoholic Beverage Sales
Page 4
specifying findings to be made for the issuance of Condi-
tional Use Permits for alcoholic beverage sales, as shown in
Attachment A.
Respectful y submitted ,
,) `� 1 ^
R. ANN SIRkUSA
Director of Planning
mkf/01/20/88
DOC:PCAGENDA
ALCOHOLSALES
1 ORDINANCE NO.
2 ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SUBSECTION 6
3 TO SECTION 19 .78 .050 OF THE SAN BERNARDINO MUNICIPAL CODE TO
SPECIFY FINDINGS TO BE MADE FOR THE ISSUANCE OF CONDITIONAL USE
PERMITS FOR ALCOHOL BEVERAGE SALES .
4
THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
5 DO ORDAIN AS FOLLOWS:
6
7 SECTION 1 . Subsection 6 is hereby added to Section
8 19 .78 .050 of the San Bernardino Municipal Code to read as
9 follows:
10 "6 • In the granting of any Conditional Use Permit for
11 either on-sale or off-sale of alcoholic beverages , the following
12 findings must also be made:
13 A . The introduction of alcoholic beverage sales at
14 the proposed location will not pose any known significant impacts
15 to the surrounding land uses .
16 B. The introduction of alcoholic beverage sales at
17 the proposed location will not create an adverse impact on the
18 surrounding traffic pattern nor will a parking congestion be
19 generated .
20 C . The proposed sale of alcoholic beverages will be
21 within a development which is consistent with the objectives of
22 the elements of the City 's General Plan .
23 D. The proposed use will not contribute to an undue
24 concentration of alcohol outlets in the area .
25 E . There will be no detrimental effect on nearby
residentially zoned neighborhoods considering the distance of
26 e Y 9
27 alcohol outlet to residential buildings , churches , schools ,
28
11-16-87 1
1 hospitals , playgrounds , parks , or other existing alcohol
2 outlets ."
3 I HEREBY CERTIFY that the foregoing ordinance was duly
4 adopted by the Mayor and Common Council of the City of San
5 Bernardino at a meeting thereof ,
6 held on the day of 1987 , by the
7 following vote , to wit:
8 AYES: Council Members -------
10 NAYS: —
11 ABSENT: --
12
City Clerk
14
The foregoing ordinance is hereby approved this day
15 _, 1987 .
16
17
18 Mayor of the City of San Bernardino
19
Approved as to form
20 an legal content:
` J
21 �
22 qty Attorney
2
24
25
26
27
28
11-16-87 2
O
ATTACHMENT B
Assembly Bill No. 937
CHAPTER 176 DEC �T
An act to add Section 23790.5 to the Business and Professions Code,
relating to alcoholic beverages.
[Approved by Governor July 22, 1987. Filed with
Secretary of State July 23, 1987.1
LEGISLATIVE COUNSEL'S DIGEST
AB 937, Condit. Alcoholic beverages.
Existing law contained in the California Constitution vests in the
state the exclusive right and power to license and regulate the
manufacture, sale, purchase, possession, and transportation of
alcoholic beverages in this state. The law provides that no retail
alcoholic beverage license shall be issued which is contrary to a valid
zoning ordinance of any county or city.
This bill would prohibit, with a specified exception, any city,
county,or city and county from adopting an ordinance or resolution
on or after January 1, 1988,prohibiting the concurrent sale of motor
vehicle fuel and beer and wine for off-sale consumption in zoning
districts where the zoning ordinance allows motor vehicle fuel and
off-sale beer and wine to be retailed on separate sites. These
provisions also would provide that on and after January 1, 1989, no
such ordinance or resolution adopted prior to May 5, 1987,shall have
any effect.
The bill would provide that the above provisions shall not prevent
a city,county,or city and county from denying permission to engage
in the concurrent retailing of motor vehicle fuel with beer and wine
for off-premises consumption pursuant to a valid conditional use
permit ordinance if the ordinance contains specified provisions.
The bill would prohibit, until January 1, 1990, establishments
engaged in the concurrent sale of motor vehicle fuel with beer and
wine for off-premises consumption from (1) displaying beer or wine
within 5 feet of the cash register unless in a permanently affixed
cooler, (2) advertising alcoholic beverages at motor vehicle fuel
islands, (3) selling alcoholic beverages from a drive-in window, (4)
displaying or selling beer and wine from an ice tub, (5) advertising ,
beer or wine on motor fuel islands and prohibiting self-illuminated
advertising for beer or wine on buildings or windows, or (6)
employing persons under the age of 21 to sell beer and wine between
the hours of 10 p.m. and 2 a.m.The bill would also provide that until
January 1, 1990, any establishment, defined above, which has been
found to have sold alcoholic beverages to a minor shall have its
license suspended for 72 hours.
This bill would impose a state-mandated local program by adding
neN,�, crimes since a violation of any provision of the Alcoholic
95 50
Ch. 176 —2—
Beverage Control Act is a misdemeanor.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
The people of the State of California do enact as follows:
SEC'T'ION 1. Section 23790.5 is added to the Business and
Professions Code, to read:
23790.5. (a) It is the intent of the Legislature in enacting this
section to ensure that local government shall not be preempted in
the valid exercise of its land use authority pursuant to Section 23790,
including, but not limited to, enacting an ordinance requiring a
conditional use permit. It is also the intent of the Legislature to
prevent the legislated prohibition of the concurrent retailing of beer
and wine for off-premises consumption and motor vehicle fuel where
the retailing of each is otherwise allowable.
(b) (1) No city,county,or city and county shall,by ordinance or
resolution adopted on or after January 1, 1988, legislatively prohibit
the concurrent retailing of motor vehicle fuel and beer and wine for
off-sale consumption in zoning districts where the zoning ordinance
allows motor vehicle fuel and off-sale beer and wine to be retailed
on separate sites.
(2) On and after January 1, 1989, no city, county, or city and
county ordinance or resolution adopted prior to May 5, 1987, shall
have legal effect if it legislatively prohibits the concurrent retailing
of motor vehicle fuel with beer and wine for off-sale consumption in
zoning districts where the zoning ordinance allows beer and wine
and motor vehicle fuel to be retailed on separate sites.
(3) On and after July 1, 1988, no city, county, or city and county
ordinance or resolution adopted on or after May 5, 1987, shall have
legal effect if it legislatively prohibits the concurrent retailing of
motor vehicle fuel with beer and wine for off-sale consumption in
zoning districts where the zoning ordinance allows beer and wine
and motor vehicle fuel to be retailed on separate sites.
(4) This section shall not apply to a prohibition by a city, county,
or city and county of the sale of beer and wine in conjunction with
the sale of motor vehicle fuel if that prohibition occurs as a result of
the prohibition of the combining of the sale of motor vehicle fuel
with a broader class of products or uses which includes alcoholic
beverages or beer and wine as a named or unnamed part of that I
larger class, if that prohibition was enacted before August 1, 1985.
(c) Subject to the restrictions and limitations of subdivision (b),
this section shall not prevent a city, county,or city and county from i
denying permission, or granting conditional permission, to an
95 90
i
—3— Ch. 176
individual applicant to engage in the concurrent retailing of motor
vehicle fuel with beer and wine for off-premises consumption
pursuant to a valid conditional use permit ordinance based on
appropriate health,safety,or general welfare standards contained in
the ordinance if that conditional use permit ordinance contains all of
the following:
(1) A requirement for written findings.
(2) A provision for an administrative appeal if the governing body
has delegated its power to issue or deny a conditional use permit.
(3) Procedures for notice of a hearing, conduct of a hearing, and
an opportunity for all parties to present testimony.
(4) A requirement that the findings be based on substantial
evidence in view of the whole record to justify the ultimate decision.
(d) Notwithstanding any other provision of law, establishments
engaged in the concurrent sale of motor vehicle fuel with beer and
wine for off-premises consumption shall,until January 1, 1990, abide
by the following conditions:
(1) No beer or wine shall be displayed within five feet of the cash
register or the front door unless it is in a permanently affixed cooler
as of January 1, 1988.
(2) No advertisement of alcoholic beverages shall be displayed at
motor fuel islands.
(3) No sale of alcoholic beverages shall be made from a drive-in
window.
(4) No display or sale of beer or wine shall be made from an ice
tub.
(5) No beer or wine advertising shall be located on motor fuel
islands and no self-illuminated advertising for beer or wine shall be
located on buildings or windows.
(6) Employees on duty between the hours of 10 p.m. and 2 a.m.
shall be at least 21 years of age to sell beer and wine.
The standards contained in this subdivision are minimum state
standards which do not limit local regulation otherwise permitted
under this section.
(e) Until January 1, 1990,if there is a finding that a licensee or his
or her employee has sold any alcoholic beverages to a minor at an
establishment engaged in the concurrent sale of motor vehicle fuel
with beer and wine for off-premises consumption, the alcoholic
beverage license at the establishment shall be suspended for a
minimum period of 72 hours. For purposes of Section 23790, the
effect of such a license suspension shall not constitute a break in the
continuous operation of the establishment nor a substantial change
in the mode or character of operation.
(f) The provisions of this section apply to chart6r cities.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because the
only costs which may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
95 110
Ch. 176
changes the definition of a crime or infraction, changes the penalty
for a crime or infraction, or eliminates a crime or infraction.
O
95 110
ATTACHMENT C
r
STATE CAPITOL
MEMBERS
FRANK HILL ,�� P O BOX 942949
VICE CHAIRMAN Tatifiarnia Tkagtti l�tua SACRAMENTO.CA 94249 0001
RUST'S AREIAS
WILLIAM P BAKER MIKE L'INCH
,IM COSTA PQ.NC,PAL CGNS�_TANT
DOMINIC L CORTESE MANUEL HERNANDEZ
R,CHARDE FLOYD _Ni3sembtU Lvmmittee 7RINC,PAL CONSLLTANT
NOLAN FRIZZELLE RAY MILLER
\�AVNE GRISHAM un S_%OR CONS__"ANT
E'_,HU M HARR!S -ERI.ANNA
SUNNY MOJONNIER
R.CHARDL MOUNTJOY (Svuernmentai @rganization ,� � ����
STAN STATHAM
SAL_v TANNER
C_=.-Sp T ,C„ER
MAX,NE.',ATEPS GARY A. CONDIT
%p/C�`pmAN S WATERS CHAIRMAN
November, 1987 ;
Sacramento, California ,ter
Dear Mayor:
One of the most significant pieces of legislation to be enacted by the 1987
session of the State Legislature was AB 937. AB 937 has been signed into
law by the Governor and will go into effect on January 1, 1988.
As an assemblyman, former city councilman, mayor and supervisor, I am very
concerned about the rapid proliferation of alcoholic beverage licenses in
California. AB 937 will enable the cities and counties of California to
exercise local control over the number, location and the conditions under
which alcohol can be sold in your jurisdiction. AB 937 can help you reduce
alcohol-related problems in your jurisdiction. AB 937 was designed to be a
tool in your hands in determining the kind of community in which you live.
Constitutionally, the issuance or denial of alcoholic beverages licenses
(regulation of sale of alcoholic beverages) is the sole responsibility of
the Department of Alcoholic Beverage Control (ABC) . However, Section 23790
of the Government Code states that "no retail license shall be issued . . .
contrary to a valid zoning ordinance of any county or city." Present law
clearly places the responsibility for land use policy and control on
locally elected officials.
As you can set conditions for residential and commercial development, you
can also control the conditions under which alcoholic beverages are
marketed in your communities . Many jurisdictions have found Conditional
Use Permits (CUP) an excellent tool for controlling the number of alcohol
outlets and defining the conditions under which licenses may be issued. In
actual practice, the ABC Department does not issue licenses that violate a
valid zoning ordinance. AB 937 validates local jurisdictions' land use
authority over alcohol outlets.
November, 1987
Page 2
AB 937 states:
"(c) Subject to the restrictions and limitations of subdivision
(b) , this section shall not prevent a city, county, or city
and county from denying permission, or granting conditional
permission, to an individual applicant to engage in t e
concurrent retailing of motor vehicle fuel with beer and
wine for off-premises consumption pursuant to valid
conditional use permit ordinance based on appropriate
health, safety, or general welfare standards contained in
the ordinance if that conditional use permit ordinance
contains all of the following:
(1) A requirement for written findings.
(2) A provision for an administrative appeal if the
governing body has delegated its power to issue or deny
a conditional use permit.
(3) Procedures for notice of a hearing, conduct of hearing,
and an opportunity for all parties to present testimony.
(4) A requirement that the findings be based on substantial
evidence in view of the whole record to justify the
ultimate decision."
The above paragraph spells out the ground rules by which you can control ,
permit or deny the concurrent sale of alcohol and motor fuel at the same
location. AB 937 clearly states "that local government shall not be
preempted in the valid exercise of its land use authority." AB 937 seeks
to replace the arbitrary banning of concurrent sales with a set of
reasonable conditions and procedures by which you can control the
proliferation of concurrent sale establishments in your area.
AB 937 goes even further: it establishes statewide minimum conditions that
apply to all concurrent sale establishments, whether or not your
jurisdiction regulates them. These minimum conditions were developed by
the Council on Alcohol Problems, Mothers Against Drunk Drivers, and
convenience store representatives. They are as follows:
"(1) No beer or wine shall be displayed within five feet of the
cash register or the front door unless it is in a permanently
affixed cooler as of January 1, 1988.
(2) No advertisement of alcoholic beverages shall be displayed at
motor fuel islands.
November, 1987
Page 3
(3) No sale of alcoholic beverages shall be made from a drive-in
window.
(4) No display or sale of beer or wine shall be made from an ice
tub.
(5) No beer or wine advertising shall be located on motor fuel
islands and no self-illuminated advertising for beer or wine
shall be located on buildings or windows.
(6) Employees on duty between the hours of 10 p.m. and 2 a.m.
shall be at least 21 years of age to sell beer and wine.
The standards contained in this subdivision are minimum state
standards which do not limit other local regulations otherwise
permitted under this section."
Please note the final sentence above: "The standards contained in this
subdivision are minimum state standards which do not limit local regulation
permitted under this section." Other conditions some communities may want
to consider in their CUP ordinance include:
o Minimum distance required between outlets;
o Areas in which certain types of outlets are not permitted;
o Limits on the number or concentration of outlets in certain areas;
o Recognition of high-risk settings;
o Limitation on advertising and display of alcoholic beverages;
o Banning of video game machines and/or jukeboxes, etc. , where
alcohol is sold;
o Limitation on hours of operation/limitations on shelf space;
o Requirement for security guards and other security devices on the
premises;
o Minimum parking lot lighting and fencing;
o Minimum training for sales personnel and/or security guards;
o Policies to discourage drinking outside premises.
The above list is not new. Neither is it exhaustive. Many of the above
provisions are now included in local CUPS. Your CUP will be a yardstick by
November, 1987
Page 4
which each license application will be evaluated. AB 937 states that CUPS
must be "based on appropriate health, safety or general welfare standards."
CUPS must be based on "written findings' and "be based on substantial
evidence." Standards should be set in advance in a reasonable and
justifiable manner.
One other point, the CUP process not only applies to new applicants, it
also can be used on existin operators who change their "mode or character
of operation.' Changes in mode or character of operation" is a broad
category and includes, but is not limited to, the following:
o A change in the type of alcoholic beverage license;
o A change in the physical structure of the premises;
o A change in ownership of the license; and
o A pattern of behavior in violation of state or local laws.
AB 937 is the result of an immense amount of work. A major interim hearing
was held on September 29, 1986, on the issues involved. There were four
public hearings during the legislative process. Negotiations were
conducted in good faith over the course of many months. AB 937 is
workable, it is fair, and above all , it will strengthen your ability to
have more input into the conditions under which alcoholic beverages are
sold within your community.
AB 937 is the product of hard work from a variety of organizations. For
further information, you may wish to contact the League of California
Cities at (916) 444-5790, the California Council on Alcohol Problems at
(916) 441-1844, Mothers Against Drunk Drivers at (916) 781-3860 or my
office at (916) 445-8570.
Thank you for your attention to this letter.
Sincerely,
GARY A. CONDIT, CHAIRMAN
GAC:mis