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HomeMy WebLinkAboutCUP 09-023TUSTIN ~~ ~ ~ ~ ~ j Inter-Cora ~~ ~a~~~...'~ DATE: OCTOBER 5, 2009 '~,~~.3 ~i~ TO: ZONING ADMINISTRATOR ~~ ~~ ,~ Hf57~aY' FROM: COMMUNITY DEVELOPMENT DEPARTMENT BUILDING OUR FUTURE HONORING OUR PAST SUBJECT: CONDITIONAL USE PERMIT 09-023 APPLICANT: MANOJKUMAR C. NILKANTH; TRADITIONS RESTAURANT 28244 SPRINGVALE LANE CASTAIC, CA 91384 CURRENT LISTED HUBERT G. WILSON PROPERTY C/O OLD TOWN, INC. OWNER: 3185 MORITZ DRIVE HUNTINGTON BEACH, CA 92649-1877 ORIGINAL LARRY SMITH PROPERTY RED HILL RESTAURANT, INC. OWNER: 3185 MORITZ DRIVE HUNTINGTON BEACH, CA 92649-1877 LOCATION: 14131 RED HILL AVENUE GENERAL PLAN: COMMUNITY COMMERCIAL ZONING: RETAIL COMMERCIAL (C-1) ENVIRONMENTAL THIS PROJECT IS CATEGORICALLY EXEMPT (CLASS 1) STATUS: PURSUANT TO SECTION 15301 OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT. REQUEST: TO AUTHORIZE THE SALE OF BEER AND WINE FOR ON- SITE CONSUMPTION (ABC LICENSE TYPE 41) IN CONJUNCTION WITH AN EXISTING RESTAURANT LOCATED AT 14131 RED HILL AVENUE. RECOMMENDATION That the Zoning Administrator take no action and forward this item to the Planning Commission for consideration and action. Zoning Administrator October 5, 2009 CUP 09-023 Page 2 SITE HISTORY/SUMMARY • 1970: The building was built and housed restaurants including Chuck's Steak House until 1998. • April 1999: Mr. Larry Smith (Red Hill Restaurant, Inc., dba Bourbon Street), obtained a Conditional Use Permit (CUP 98-029) for the restaurant and a Type 47 (On-Sale General -Eating Place) Alcoholic Beverage Control (ABC) license. • June 2003: Bourbon Street was purchased by Gregory Mark Fitzgerald. • June 2004: Mr. Fitzgerald incorporated as and renamed the business "Fitz's Pub and. Lounge." • June 2006: Mr. Fitzgerald transferred the ABC license and CUP 98-029 to Matthew Roderick Huston for Roderick's. • September 2006: Roderick's opened for business. • November 2008: After documentation of numerous violations of the ABC license and CUP 98-029, the Tustin City Council revoked CUP 98-029, including the ABC license and Live Entertainment Permit. The City Council determined that the revocation shall not be subject to the one year prohibition on the submission of a subsequent conditional use permit as otherwise required under the City code. • April 2009: Manojkumar Nilkanth opened Traditions Restaurant, with no alcohol service. • July 2009: Mr. Nilkanth submitted an application for a CUP to obtain a Type 41 (On- Sale Beer and Wine -Eating Place) ABC License. Though Tustin City Code Section 9299b(3)f allows the Zoning Administrator to consider applications for on-site alcoholic beverage sales licenses for restaurant, due to the history of the site, it is recommended that the Zoning Administrator take no action and forward this matter to the Planning Commission for consideration and action. _~~ Cari Meyer Assistant Planner Attachment: City Council Resolution 08-80 (Partial Resolution) ATTACHMENT City Council Resolution No. 08-80 RESOLUTION NO. 08-$0 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, REVOKING CONDITIONAL USE PERMIT 98-029 FOR ON-SITE SALE AND CONSUMPTION OF BEER, WINE AND DISTILLED SPIRITS (LICENSE TYPE 47) AND THE LIVE ENTERTAINMENT PERMIT IN CONJUNCTION WITH A RESTAURANT LOCATED AT 14131 RED HILL AVENUE The City Council does hereby resolve as follows: The City Council finds and determines as follows: A. That Conditional Use Permit (CUP) 98-029 was filed in 199$ to allow on-site sale and consumption of beer, wine, and distilled spirits (ABC License Type 47) and live entertainment in conjunction with a restaurant located at 14131 Red Hill Avenue. The application was heard by the Planning Commission on February 8, February 22, and March 8, 1999, at which time the Planning Commission approved Resolution No. 3655 for CUP 98-029. B. That on March 15, 1999, the City Council appealed the Planning Commission's decision based on public complaints and concerns about the use at that location. Two additional public hearings were subsequently held on April 5, and April 19, 1999, at which time the City Council upheld the Planning Commission's decision and approved Resolution 99-29 for CUP 98- 029. C. That pursuant to Condition 1.7 of Resolution No. 99-29, the Community Development Director may review CUP 98-029 to ascertain compliance with conditions of approval. If the use is not operated in accordance with Conditional Use Permit 98-029, or is found to be a nuisance or negative impacts are affecting the surrounding neighborhood, the Community Development Director may initiate proceedings to revoke the Conditional Use Permit. As a result of several complaints received in regard to the business operations, investigations were initiated by the Community Development Director to ascertain compliance with conditions of approval for CUP 98-029. Such investigations demonstrated that numerous violations occurred. Therefore, proceedings to revoke Conditional Use Permit 98-029 were initiated. An Investigative Report was prepared and is attached in Exhibit A of Resolution No. 4103 and Resolution No. 08-80. D. That, pursuant to Tustin City Code Section 9293c, the Planning Commission may recommend that the City Council revoke a conditional use permit if any one of the following findings is made: If any of the terms or conditions of approval are violated; or, 2. If the following finding is made: The continuance of the use would be detrimental to the health, safety, morals, comfort, and general welfare of the persons residing or working in the neighborhood of such use, or would be injurious or detrimental to property and improvements in the neighborhood or to the general welfare of the City. E. That on October 16, 2008, a notice of the public hearing was published in a newspaper of general circulation indicating that the Planning Commission would consider a report to revoke CUP 98-029 and the Live Entertainment Permit currently utilized by Raderick's restaurant. At least ten days prior to the hearing, notices were also mailed to the last known operator and all property owners within three hundred (300) feet of the site. F. That for a period of one (1) year following the approval, denial or revocation of a discretionary land use permit, no application for the same or substantially similar discretionary permit for the same site shall be filed. G. That the Planning Commission held a public hearing on the revocation of Conditional Use Permit 98-029 at a duly noticed, regular meeting on October 28, 2008. H. That the Planning Commission approved Resolution No. 4103 recommending that the City Council revoke Conditional Use Permit 98-029 for on-site sale and consumption of beer, wine and distilled spirits (License Type 47) and the Live Entertainment Permit in conjunction with a restaurant located at 14131 Red Hill Avenue. That the City Council has considered the matter and made the following findings based on the evidence as described in the staff report dated November 18, 2008, and attachments thereto, including the Investigative Report in Exhibit A of Resolution No. 08-80. The City Council hereby makes the following findings as required in the Tustin City Code Section 9293.c: The City Council passed and adopted Resolution No. 99-29 at a regular meeting held on the 19th day of April, 1999. The City Council determined that the establishment, maintenance, and operation of the use applied for would not, under the circumstances of this case, be detrimental to the health, safety, morals, comfort, or general welfare of the persons residing or working in the neighborhood of such proposed use nor be a detriment to the property and improvements in the neighborhood of the subject property, nor to the general welfare of the City of Tustin. However, the facility has not been operated in accordance with the terms set forth in Conditional Use Permit 98-029 and the conditions of approval set forth in Resolution No. 99-29. The facility's operators have consistently violated the terms of Conditional Use Permit 98-029 and continuance of the use would constitute a detriment to the health, safety, and general welfare of nearby residences, businesses, and the community. As shown in the Investigative Report in Exhibit A of Resolution No. 08- 80, regardless of ownership, business name or restaurant menu, the businesses at this location have continually violated the conditions of approval for Conditional Use Permit 98-029 as well as ABC licensing requirements and State law. The required findings for revocation of CUP 98-029 that the use continues to be detrimental to the community and the City are further substantiated and arbitrated in detail in the Investigative Report. The following conditions of approval have been violated: a. Condition 7.8: Audited financial statements and schedules separately identifying gross sales of food and gross sales of alcohol must be submitted to the Community Development Department for annual review. The gross receipts of food sales must exceed the gross receipts of alcohol sales. Ifgross receipts of alcohol exceed food sales, the Community Development Director shall initiate proceedings to revoke the Conditional Use Permit. Multiple letters were sent from City staff to the owners Larry Smith and Gregory Fitzgerald regarding the requirement of Condition 1.8 for an audited financial statement and schedule prepared by a certified public accountant. The owners repeatedly ignored the requirement and were unwilling to comply with conditions of approval. Staff subsequently initiated revocation proceedings until the new owner took over. When Mr. Huston was informed of the conditions of approval prior to taking over the business (meeting held on July 21, 2006 and in letter from staff on July 21, 2006), he was informed of all conditions including 1.8. A letter dated December 4, 2006 was submitted with the appropriate gross sales and schedule, however, every instance thereafter, the appropriate documentation was not submitted. Staff notified Mr. Huston on May 14, 2008, and again on June 9, 2008, of the requirement to submit gross sales statements and schedules which were overdue and incomplete. b. Condifion 2.1: No off-site sale or consumption of alcohol is authorized, except partially consumed bottles of wine as authorized in Business and Professions Code Section 23396.5. Numerous violations were noted by the Special Investigations Unit violating the requirement that no alcohol was to be consumed off-site. Specifically, on a number of occasions undercover officers walked outside the front door holding beer battles and spoke with the bouncer. The bouncer never asked them to step inside. An ABC undercover officer also consumed alcohol outside on the patio in front of the bouncer and only after approximately two minutes was asked to bring the drink inside. Undercover officers also observed what appeared to be alcohol being consumed outside, near the front door on several separate occasions. c. Condition 2.3: Hours of sales of alcoholic beverages shall be limited to the hours when food is available. Service of food menu items shall be during all business hours. On numerous occasions, violations were noted by the Special Investigations Unit. Specifically, 80 percent of the premises were not set up for serving meals to the public. On multiple occasions, undercover officers were told that the kitchen was closed. Furthermore, no utensils or condiments were provided on the tables. d. Condition 2.4: Operating hours shall be consistent with other businesses within the commercial center. The closing hours shalt be 11:00 p.m. Sunday through Thursday and 12:00 a.m. Friday and Saturday. No new patrons shall be admitted after the closing hours and patrons shall vacate the premises within thirty (30) minutes after closing time. In a number of separate instances, code enforcement officers inspected the site and noted a poster and online advertisements indicating that the facility was open "Friday 9:00 p.m. - 2:00 a.m." Furthermore, when officers phoned on several separate occasions and asked what time they close on Fridays, they received a response of "2:00 a.m." e. Condition 2.5: The menu of the restaurant shall consist of foods that are prepared on the premises. During several separate investigations, undercover officers were told that the kitchen was closed and no food was being prepared on the premises. Condition 2.9: Authorization for the on-site sales of beer, wine, and distilled spirits (ABC License Type 47) is contingent upon the use of the subject premises remaining a restaurant. Should Phis use change or be discontinued, authorization for this use permit is null and void. City staff provided written correspondence on at least two separate occasions to the owner informing him that operation of an all age dance club was not authorized by Conditional Use Permit 98-029 or the Live Entertainment Permit. Multiple violations of the ABC license were also observed by undercover officers and the business was fined in-lieu of suspension after ABC investigators discovered violations of the license. During several separate undercover investigations, the restaurant did not offer food service nor did they provide eating utensils far food consumption. g. Condition 2.10: din part] Shall not exceed 72 "bar seats" within the lounge area and four "bar seats" within the main level dining room. During several separate undercover investigations, it was noted that the facility supplied in excess of 12 bar seats in the lounge and in excess of two bar seats at the main level. h. Condition 2.11: The applicant shall obtain a Public Dancing Permit and an Entertainment Permit from the Community Development Director prior to offering public dancing and live entertainment on the premises. Several conditions of approval of the Public Dancing Permit and Entertainment Permit were noted to be violated. The entertainment permit conditioned that it was subject to the conditions of approval in Resolution No. 99-29 approving CUP 98-029. Therefore, every time there was a violation of conditions for CUP 98-029 it was a violation of the live entertainment permit. Additional violations were observed by officers that included entertainment being provided that was not consistent with the approved live entertainment permit. Condition 2.12: Any bar located within the facility shall function as a food/beverage service bar. Undercover officers were told on several separate occasions that the kitchen was closed and food was not available. j. Condition 2.14: The entire facility, which includes all three (3) levels, shall operafe exclusively as a restaurant. During business hours, at least 80 percent of the premises shall be designed and used for and must possess the necessary utensils, table service and condiment dispensers with which to serve meals to the public. During several separate investigations, undercover officers were told that the kitchen was closed. Furthermore, during separate instances, minimal or no place settings and utensils were observed. Tables and chairs were also observed being removed by the business owner to make roam for dancing. k. Condition 2.15: "No Loitering" signs shall be posted at the entrance of the business. During multiple inspections, both code enforcement and undercover officers noted that no such signs could be observed. Condition 2.16: All litter shall be removed from the exterior area around the premises including adjacent public sidewalk areas and parking area no less frequently than once each day that the business is open. On several separate occasions, Special Investigations Division officers observed trash strewn around the parking lot. 2. The use continues to be detrimental to the community and the City and as clearly substantiated in the amount of staff time and police services that have been required throughout the life of the permit. The investigative report in Exhibit A of Resolution No. 08-80 further shows, regardless of ownership, business name or restaurant menu, the businesses at this site have continually violated the conditions of approval as well as State law. In addition to undercover police actions, based on police records, there are significantly higher calls for service at 14131 Red Hill Avenue than many other restaurant uses in the City. These calls include patrol checks, suspicious vehicles, loud party music, petty theft, rowdy "gangster type" crowds, and other disturbances of the peace. Consequently, the continuance of the use would be detrimental to the health, safety, morals, comfort, and general welfare of the persons residing or working in the neighborhood of such use, or would be injurious or detrimental to property and improvements in the neighborhood or to the general welfare of the City. J. That this project is Categorically Exempt pursuant to Section 15270(b) (Article 18. Statutory Exemptions -Projects which are disapproved) of the California Environmental Quality Act (CEQA). (Guidelines for the California Environmental Quality Act). II. That the City Council held a public hearing on the revocation of Conditional Use Permit 98-029 at a duly noticed, regular meeting on November, 18, 2008. At which time, the City Council hereby revokes Conditional Use Permit 98-029, for on-site sale and consumption of beer, wine, and distilled spirits (ABC License Type 47) and live entertainment in conjunction with a restaurant located at 14131 Red Hill Avenue. Such revocation shall not be subject to the one year prohibition on the submission of a subsequent conditional use permit as otherwise required under the City code. PASSED AND ADOPTED by the City Council of the City of Tustin at a regular meeting held on the 18~' day of November, 2008. ATTEST: PAMELA STOKER, City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) I, Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 08-80 was duly passed and adopted at a regular meeting of the Tustin City Council, held on the 18~' day of November, 2008 by the following vote: COUNCILMEMBERAYES: Amante, Davert, Bone, Palmer (4) COUNCILMEMBER NOES: Kawashima (1) COUNCILMEMBER ABSTAINED: None (0) COUNCILMEMBER ABSENT: None (o) ~'AMELA STOKER, ---~~ City Clerk This is a partial resolution. The remainder of the Resolution (total of 264 pages), including all exhibits, can be found on the City's website, www.tustinca.orq.