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HomeMy WebLinkAbout01 PC MINUTES FEBRUARY 9, 2016MINUTES REGULAR MEETING TUSTIN PLANNING COMMISSION FEBRUARY 9, 2016 7:00 p.m. CALL TO ORDER Given INVOCATION/PLEDGE OF ALLEGIANCE: Smith ROLL CALL: Chair Thompson Chair Pro Tem Lumbard Commissioners Altowaiji, Kozak, Smith None PUBLIC CONCERNS CONSENT CALENDAR: Approved 1. APPROVAL OF MINUTES — JANUARY 26, 2016 RECOMMENDATION: I11111I►TAE:lil That the Planning Commission approves the Minutes of the January 26, 2016 Planning Commission meeting as provided. Motion: It was moved by Kozak, seconded by Altowaiji, to approve the Minutes of the January 26, 2016 Planning Commission meeting. Motion carried 5-0. PUBLIC HEARING: Adopted Reso. No. 2. APPEAL OF DENIAL OF BUSINESS LICENSE APPLICATION — 4309 BUY GUM FREE FUN, INC. Mr. Todd H. Iger ("Appellant") appeals from and requests reconsideration of the Director of Finance's denial of a business license application for a coin pusher machine inside the Soapy Lee Coin Laundry, located at 17292 McFadden Avenue, Suite H & I, Tustin, CA. APPELLANT: LOCATION: TODD H. IGER SOAPY LEE COIN LAUNDRY BUY GUM FREE FUN, INC. 17292 MCFADDEN AVE., # H&I 10 HUGHES, SUITE A106 TUSTIN, CA 92780 IRVINE, CA 92618 RECOMMENDATION: It is recommended that the Planning Commission uphold the denial of the Appellant's business license application by adopting Resolution No. 4309. Minutes — Planning Commission February 9, 2016 — Page 1 of 5 Interrante Presentation given. Daudt Daudt, Deputy City Attorney, informed the Commission of the appellant's attempt to bring the coin pusher machine ("machine") into the chamber in order to demonstrate its operations to the Commission; however, there were concerns with potential Penal Code violations therefore the appellant was asked to remove the machine. 7:13 p.m. Public Hearing opened. Mr. Todd Iger's, appellant, comments/opinions generally included: His extensive research on amusement games; he presented a written appeal to the Chair, along with copies of his business licenses with the City of Santa Ana and the City of Colton; Mr. Iger referred to Attachment E, of the City's staff report, stating that it was an "advisory document which does not constitute legal advice" and that Attachment E was "outdated"; he said California Justice Bureau Gambling Control's phone number was disconnected; the flow chart does not accurately state current law and he referenced California versus Moussa case (with regards to Consideration Exemption - Section 330.5) which omits any section to Section Code 330.5; he referred to additional legal advisory documents, specifically Section 330b (skill exemption); Mr. Iger believes his machines comply at the state level, per Section 330.5; and he claims his machine is "unique" and referred to it as a "mousetrap". Smith Smith asked if Mr. Iger believed the video, presented by staff, was an accurate portrayal of his machine. In response to Smith's question, Mr. Iger stated that the machine on the video is a "portion" of his machine and that the "workings are an accurate portrayal"; however, his machine has been modified ("every time a quarter is put in, a gumball is put out") requiring skill. Thompson Thompson asked for clarification with regards to Attachment E being outdated and references within the staff report to communication and interpretations by the Alcohol Beverage Control (ABC) Board and California Lottery and the context of interpretation by City staff and state law. Daudt Daudt's response to Thompson's questions generally included: Dana Ogdon, Community Development, was the individual who spoke with representatives at the ABC and the California Lottery; Daudt and the lead detective from Tustin Police spoke with an agent at the Department of Justice; and that the City does not solely rely on the law advisory memorandum that was distributed to jurisdictions but that City staff made the determination based on reading and interpretation of the Penal Code, evaluated the state law, and came to a determination. Mr. Iger again referred the Commission to the state law and the codes he referred to previously. Minutes — Planning Commission February 9, 2016 — Page 2 of 5 Ms. Valerie Gonzalez, marketing director for Buy Gum Free Fun, provided her brief history in the marketing industry and spoke in favor of the item. She also spoke about skill tests she has given to children on the skill set button on the machine. 7:32 p.m. Public Hearing closed. Lumbard Lumbard asked if the City Attorney researched the decision of the Moussa case. He referred to the Law Enforcement Advisory memorandum cites to Penal Code Sections 330 and 330.5 and asked if anything had changed or if the information was accurate. Daudt Daudt stated that the decision of the Moussa case was determined by a superior court jury which unanimously found that a similar coin in/coin out pushing device was an illegal gambling device under state law. Regarding the Penal Code question, Daudt stated that in his assessment, it is an accurate reflection and that there have been no changes to Sections 330 and 330.5 since 2010. Altowaiji Altowaiji asked about the appellant's machine versus the games at Dave & Buster's (D&B's) and how they compare. Daudt In response to Altowaiji's question, Daudt indicated that he was hesitant in discussing the nuances of D&B's machines without actually looking at them. However, the one differentiating factor would be that a customer at D&B's is paying for tokens at the door to play a number of games and a customer does not win cash prizes, but redeemable tickets that only have a value within D&B's. Smith Smith's questions/comments generally included: He questioned the City's position on denying the item and the City's interpretation that the machine is an illegal device and the implication would be that the cities of Orange, Santa Ana, and Colton are on the "wrong side of the law"; he asked if it is a matter of opinion on whether or not this is a legal or illegal machine; Smith asked if the City's compelling interest in denying the appellant's machine is because it is perceived to be an illegal device or if the City finds this machine does not fit within Tustin community; he also asked for the position of the California Lottery and ABC being identified as two (2) different state agencies and if they have authority on gambling devices in the state or if they are limited to the Gambling Commission; Smith further questioned the nature of the machine not being permitted by an ABC license facility. Daudt Daudt agreed with Smith's assessment in terms of anecdotal information ("one would be just as likely to find instances of cities across the state that have similar machines"). His assessment in reading the law is that the appellant's machine is an illegal gambling device as defined in the Penal Code. Daudt could not speak on behalf of the other cities Smith referred to. He stated it would be presumed that the legality of the device is the reason for denying the device. With regards to the California Lottery and ABC, they have permits and conditions attached to Minutes — Planning Commission February 9, 2016 — Page 3 of 5 their permits (i.e. ABC will allow the sale of liquor and alcohol and in the instance they find one of these devices on a licensed premise, this could be grounds to revoke the license based on their understanding that it is an illegal device). The same would apply to the California Lottery only it would pertain to the authorization of the sale of lotto tickets from the prem ises. Lumbard Lumbard stated that the Commission's role is not to interpret the law but to discuss a business license that was denied based on the City Attorney's understanding and interpretation of the Penal Code so the Commission either needs to reject or rely on that advice as well as the City's staff report and presentation. These types of machines are trying to fit under the exceptions of the law but it is not the job for the Commission to interpret all of the nuances. Thompson Thompson referred to Attachment E not being the sole determination of the interpretation and he reiterated the key points previously made. Bobak Bobak informed Mr. Iger of a 10 calendar day right of appeal to the City Council. Mr. Iger insisted on speaking again after the Commission had closed the Public Hearing and voted. Bobak advised Thompson to re -open the Public Hearing officially or consider it an expansion of the public comment section of the meeting, which would allow Mr. Iger to provide his input. This would also allow staff to understand what his position is, in the event he appeals the item then staff could better prepare for the Council meeting. 7:42 p.m. Public Comment re -opened. Mr. Iger's comments generally included: Concerns with ABC and the California Lottery and their position with regards to the appellant's machine; he stated that in their view, the ability to sell alcohol or lottery tickets is a privilege, not a right and as such, they contract with locations and are allowed to put whatever exemptions they wish to provide that privilege to that location, and they have a right to decide what clients they choose; the fact that the California Lottery does not like these types of machines does not have anything to do with whether or not the machines are legal or illegal; and the differences from the machine in the video and Mr. Iger's machine is that store provides vouchers for store credit which means the customer does not win cash, they win credit at the merchant's location. Motion: It was moved by Lumbard, seconded by Altowaiji, to adopt Resolution No. 4309. Motion carried 5-0. None. STAFF CONCERNS: COMMISSION CONCERNS: Minutes — Planning Commission February 9, 2016 — Page 4 of 5 Smith No concerns. Lumbard No concerns. Kozak Kozak had favorable comments for staff and the appellant. He attended the following events: 1/28: Downtown Commercial Core Plan Workshop 1/29: Mayor's Inaugural Dinner Happy Valentine's Day! Altowaiji Happy Valentine's Day! Thompson Thompson attended the following events: 1/28: ULI Mentorship Program 1/29: Mayor's Inaugural Dinner 2/4: ULI Office & Commercial Initiative Council 7:47 p.m. ADJOURNMENT: The next regular meeting of the Planning Commission is scheduled for Tuesday, February 23, 2016, at 7:00 p.m. in the City Council Chamber at 300 Centennial Way. Minutes — Planning Commission February 9, 2016 — Page 5 of 5