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Home My WebLink About12 - Appeal of Planning Commission's Denial of a Minor Use Permit for E. Art Gallery (PA2018-177) - CorrespondenceReceived After Agenda Printed February 26, 2019 Item No. 12 From: Nelson, Jennifer To: Mulvey, Jennifer Cc: Rieff, Kim Subject: FW: Tattoo Parlor in CdM Date: Tuesday, February 26, 2019 3:03:49 PM No. 12 Jennifer Nelson Assistant City Clerk City of Newport Beach 100 Civic Center Drive, Newport Beach, CA 92660 949-644-3006 jnelson@newportbeachca.gov -----Original Message ----- From: Ruth Kobayashi[mailto:ruthkobayashingmail.com] Sent: Tuesday, February 26, 2019 3:03 PM To: Dept - City Council <CityCouncil@newportbeachca.gov> Subject: Tattoo Parlor in CdM Good afternoon City Council. Unfortunately, I'll not be able to attend tonight's meeting. Please accept this email as a public comment regarding the tattoo parlor that wishes to be located in CdM. I respectfully request that you deny the request for this and any tattoo parlor. The freedom of business owners to establish a legal business in a certain location has to be balanced with the desires of the community, the impact on the neighbors, and the character of the neighborhood. While certain types of business are common on the Peninsula, a neighborhood with a very different character than that of the CdM village, would set a precedent in CdM. That is a precedent that could begin the change of the neighborhood character in a way that most people would not appreciate. Further, nothing keeps folks from traveling a couple of miles to the Peninsula to purchase the services of a tattoo parlor. PLEASE do not open the floodgates and facilitate this type of change of character in CdM, and all that goes with it. Thanks for listening and for your dedication to the quality of life in our communities. Ruth Digital Enthusiast Sent from my iPad RECEIVED AFTER AGENDA PRINTED February 26, 2019 Item 12 Nelson, Jennifer Subject: -------- Original message - FW: Tattoo Studio on 2721 E. Coast Hwy From: "Crager, Chelsea" <ccrager(c�newportbeachca.gov> Date: 2/25/19 7:37 AM (GMT -08:00) To: "Brown, Leilani" <LBrown(a�newportbeachca.gov> Subject: FW: Tattoo Studio on 2721 E. Coast Hwy Hi Leilani, This came in on Friday regarding the E Art Gallery appeal. p CHELSEA CRAGER Community Development Department Associate Planner oy ss ccraper@newportbeachco.goy 949-644-3227 From: Gerard Andrassy <andrassv@earthlink.net> Sent: Friday, February 22, 2019 6:20 PM To: Crager, Chelsea <ccrager@newportbeachca.gov> Subject: Tattoo Studio on 2721 E. Coast Hwy Dear Newport Beach City Council Members, As a property owner in Corona Del Mar for over 30 years, I am strongly opposed to a Tattoo Studio and find that this type of business is NOT appropriate for our neighborhood. My property, on the 500 block of Fernleaf Avenue, is leased to families with small children. Allowing a Tattoo Studio in Corona del Mar, would cause a loss of income and a decrease in property values. Please consider that Corona del Mar is a family friendly neighborhood and my objection to any Tattoo Studio. Best regards, Gerard Andrassy 509 & 509 % Fernleaf Ave. Received After Agenda Printed February 26, 2019 Item No. 12 Subject: FW: Tattoo parlor City Council, It has me concerned as a parent and homeowner a tattoo parlor is possibly moving in on our street let alone CDM. This location also had a massage parlor which ended up catering to men. Thankfully the police closed it down. My concern is the other tenants that would be attracted to locate themselves with a tattoo parlor such as smoke shops, massage parlors and lingerie stores. I managed my families property and Condomrev wanted the space and we said no. The new landlord let them in and now there is a smoke shop, lingerie store and record store. Not too many professional businesses would want to be in the same building as a tattoo parlor. My kids went to Harbor View Elementary and one is still at CDM High School and we pass by those buildings on a regular basis. When they were little we walked passed it everyday. The CDM bus stop is right by there and being exposed to something that is violent to the body is too much for children to see on a regular basis. Kids are cutting themselves and hurting themselves out of anger and frustration and having a tattoo store close to a school is not acceptable. Please do not let them move in. It will hurt my property values. This landlord let a funny massage place move in and not sure what is next if we let the tattoo place in. Kindest regards, Gretchen Schlegel Received After Agenda Printed February 26, 2019 Item No. 12 Subject: FW: Tattoo studio 2721 E. Coast Hwy From: Joy Curtin <JCurtin@Villa Rea IEstate. com> Sent: Friday, February 22, 2019 2:27 PM To: Crager, Chelsea <ccrager@newportbeachca.gov> Subject: FW: Tattoo studio 2721 E. Coast Hwy Newport Beach City Council Members: I have been a homeowner and resident in Corona del Mar on the 500 block of Fernleaf Avenue for 26 years. I feel strongly that A Tattoo studio is NOT an appropriate business to be allowed in the area. This could cause me LOSS OF INCOME I lease my front property to families with children. We have never allowed a Tattoo parlor in Corona del Mar, Why would we allow one to open in the area now. Please consider this objection for the good of the community. Best regards, Joy Curtin 513 & 513 % Fernleaf Ave. Joy Curtin Real Estate Professional C. 949 633 8335 9-19 X31 4.136 949 73 1 -1 1 3 Villa Real Estate -1.0 !Ve,vpor- Cen-er \1 -'N DO rt 32 C71, CA 9 60 VillaRealEstate.com Cal 3RF ;No. 0114Oti9-t MELINDA, LUTHIN I LAW Via Email The Honorable Diane Dixon and Members of the Newport Beach City Council 100 Civic Center Drive Newport Beach, CA 92660 Received After Agenda Printed February 26, 2019 Item No. 12 February 26, 2019 Hon. Diane Dixon: ddixonknewportbeachca.gov Hon. Brad Avery: bavery&newportbeachca.goy Hon. Duffy Duffield: dduffieldknewportbeachca.gov Hon. Kevin Muldoon: kmuldoonnnewportbeachca. goy Hon. Jeff Herdman: jherdmanknewportbeachca.gov Hon. Joy Brenner: joyknewportbeachca.gov Hon. Will O'Neill: woneillknewportbeachca.gov Re: Opposition To E Art Gallery Minor Use Permit Dear Mayor Dixon and Members of the City Council: This letter is to voice my objection to the appeal of the decision of the Newport Beach Planning Commission to deny an application for a minor use permit ("Application"), submitted by an applicant identifying itself as "E Art Gallery," regarding a space located at 2721 East Coast Highway, Corona del Mar, California. I am a person interested in this appeal in that I work at 2721 East Coast Highway, Corona del Mar, California and I am a resident of Corona del Mar, California. Savannah Gallegos, who filed the Application under the name of a business that does not exist, wants to fill a garaged -sized basement office space with at least four separate businesses, many of which would require the approval of conditional use permits and/or adult oriented business permits. In her appeal, Ms. Gallegos requests the Council issue a minor use permit to allow E Art Gallery to open and operate a tattoo parlor, and apparently, an art gallery, an art studio and an art school, where the Applicant wants to host shows and to use "live models" for "art classes" taught to children as young as 10 years old, unaccompanied by their parents, in a small basement office space that has all its windows obscured with heavy fabric and that can never comply with the necessary permit requirements, building standards or Health and Safety Codes. Savaanah Gallegos, is the Appellant ("Appellant"). She claims the Planning Commission "wrongly [sic] denied [E Art Gallery's application] without using evidence." ("Reasons for Appeal," p. 12-7 [Attachment A, p.3].) Appellant is wrong. It is the responsibility of the applicant to provide evidence in support of the findings required for issuing the permit. (NB Muni Code § 20.52.020.) As Appellant admits, Chairman Kleiman and the Honorable Koettling stated that they "can't make findings on compatibility in this area," based on the facts presented to them. The fault Newport Beach City Council Letter Re: E Art Gallery Tattoo February 26, 2019 Page 2 for the Commissioners' inability to make findings required to issue a permit lies with the Applicant, not with the Commission. Appellant also disagrees with the Planning Commission's determination that the intended use is not compatible with the surrounding businesses and area but she provides no facts to support her contention. Finally, Appellant states that "tattooing is a `Form of pure expression' protected by our First Amendment Right...", although she does not claim that any right has been violated. Appellant's appeal is without merit. As discussed below, the Planning Commission's decision was correct and I respectfully request that the City Council uphold that denial. SUMMARY The practice of Body Art raises serious health and safety concerns. As such, California enacted the Safe Body Art Act (Cal Health & Saf Code §§ 119300 -119328.) in order to address these concerns. The Body Art industry is regulated via the Safe Body Art Act and pursuant to local and regional law in order to "protect both the practitioner and the client from transmission of infectious diseases through the application of proper body art procedures and the control of cross - contamination of instruments and supplies." (Cal Health & Saf Code § 119300.) Body Art laws properly regulate the facility, the business owner, and the practitioner. These regulations include but are not limited to: extensive training, reporting, licensing, registrations and documentation; strict compliance with building specifications; biohazard waste disposal; records maintenance and retention; customer age limits; and limitations and restrictions on facility locations and hours of operations. Appellant's claim that tattooing is protected by the First Amendment is of no consequence. Activity protected by the First Amendment may be lawfully subject to time, place, and manner restrictions. (See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49-50, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986); see also 3570 E. Foothill Blvd., Inc. v. City of Pasadena, 912 F. Supp. 1268, 1273 (C.D. Cal. 1996) ["despite the fact that adult entertainment is protected by the First Amendment, local governments do have the right to impose time, place, and manner restrictions"].) Newport Beach City Council Letter Re: E Art Gallery Tattoo February 26, 2019 Page 3 Any more than a person's Second Amendment rights would mandate that the City allow a person to use the prospective space as a shooting range, Appellant's First Amendment Rights do not permit her to circumvent the content -neutral time, place, and manner restrictions of the Safe Body Art Act, the Orange County Health regulations, or the City of Newport Beach's Minor Use Permit Requirements. The prospective space and building cannot meet the requirements of the Safe Body Art Act or the Orange County Health regulations, even with extensive renovation, repair and remodeling. Nor does the prospective space and building meet the Newport Beach Minor Use Permit requirements. In addition, Appellant's and Applicant's continuously changing proposed business operations now appear to fall within the categories of "adult oriented business," "Adult model studio," "Live art class," all of which require the business to first obtain an adult oriented business permit. (NB Muni. Code §§ 5.96.010, 5.96.015.) The Application is so substantively and procedurally flawed, it would have been impossible for the Planning Commission to approve it, and the appeal creates additional reasons that it too must be denied. 1. The applicant is identified as an entity that does not exist; 2. The applicant failed to submit applications for all permits at once as required; 3. The appellant is not the applicant; suggested modifications, even if permissible, cannot be made by someone other than the applicant; 4. The application does not provide correct information regarding the proposed building; 5. The application does not provide correct information regarding the proposed location within the neighborhood; 6. The proposed facility does not and cannot meet the strict building standards required; 7. The proposed use does not comply with all applicable provisions of the Zoning Code or the Municipal Code; 8. The proposed design, location, size, and operating characteristics of the use are not compatible with the allowed uses in the vicinity; 9. The proposed site is not physically suitable in terms of design, location, shape, size, or operating characteristics; Newport Beach City Council Letter Re: E Art Gallery Tattoo February 26, 2019 Page 4 10. The proposed site is not physically suitable in terms of the provisions of public and emergency vehicle (e.g., fire and medical) access and public services and utilities; 11. Operation of the use at the location proposed would be detrimental to the harmonious and orderly growth of the City; 12. Operation of the use at the location proposed would endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. The above are but a few of the issues associated with the Application. Staff has not evaluated the necessary requirements for the proposed space, and, at the least, the matter should be sent back to Staff to evaluate the prospective space with regard to the requirements of body art facilities as well as to evaluate the requirements and restrictions of holding art classes with minors unaccompanied by their parents. THE APPLICANT DOES NOT EXIST The Newport Beach Staff Report indicates that a person named "Savaanah Gallegos" is the applicant. (Staff Report Feb. 26 2019, ABSTRACT.) This is incorrect. Savaanah Gallegos is the appellant. According to the City of Newport Beach, "E Art Gallery" is the applicant. Unless the business is being operated as a sole proprietorship formed with a name that includes the individual's name (example: John Smiths Fishing Shop), a Fictitious Business Name Statement ("FBN") must be filed with the county where the principal place of business is located California. (Cal Bus & Prof Code § 17900 et seq.) The Records of Orange County indicate that no one has filed an FBN containing the phrase "E Art," `B -Art," or 'E. Art." (See attached search results.) The Records of Orange County also indicate that neither Savaanah Gallegos (including variations of this name) nor the other purported owner, Edgar Aguirre has ever filed any FBN in Orange County. The California Secretary of State indicates that no LLC, LLP or corporation has been registered to do business as "E Art Gallery," "E -Art Gallery," or `E. Art Gallery." (See attached search results.) Unless a business contains the owner's name(s), persons have no right to conduct business in California unless they have filed the required forms with the appropriate agencies. (Cal Bus & Prof Code § 17900 et seq.; Cal Corp. Code, §§ 100 et seq, 2200 et seq., 16105 et seq.) Newport Beach City Council Letter Re: E Art Gallery Tattoo February 26, 2019 Page 5 Because "E Art Gallery" does not exist, it has no right to apply for or obtain any permit in Newport Beach. APPELLANT HAS NO RIGHT TO USE THE APPELLATE PROCESS TO MODIFY THE APPLICATION Appellant is Savaanah Garcia. (See Appeal Application.) Applicant is E Art Gallery. (See application.) Appellant is not Applicant. A non -applicant may not modify an application. The City Council should not consider Appellant's proposed changes in scope. The review authority shall consider the same application, plans, and project -related materials that were the subject of the original decision, unless otherwise deemed relevant by the review authority. (NB Muni. Code § 20.64.030 C.3.d.) Consideration may only be given so long as it does not change the scope of an application. Here, Appellant has substantially modified the terms of the proposed use as stated in (someone else's) application. Appellant claims that Applicant now wishes to hold art school classes, including "personal one-on-one" classes to persons of "any age 10+," which, Appellant claims, will be "hosted by" "[a]n instructor or live model." (Staff Report, Attachment G, Revised project description," p.12- 157 [emphasis added].) Notably, the proposed space has three large windows (two windows with dimensions 7' x 6' and one window with dimensions of 6.75' x 4.5'), all of which have been blacked out by Appellant. Given the fact that the proposed new use includes providing "classes," that are "hosted by live models," to unaccompanied minors in a space with no view to the exterior of the space, the proposed new use should be thoroughly reviewed by means of a new application, with scrutiny of the nature of the "live modelling," and classes. The writer of this letter has not evaluated the laws regarding conducting art classes with unaccompanied minors, but a cursory review of the law indicates, that, at the least, art or craft materials that contain or that are presumed to contain an ingredient that is a toxic substance causing chronic illness, may not be used in K-6 grade private schools. (Calif. Educ. Code §§32064- 32066.) And if the art displayed in the "gallery," contains depictions of nudes or if the "live models" proposed to be used for the "private" children's art classes are nude, then additional scrutiny of the proposed activities should be made and restrictions and prohibitions should be Newport Beach City Council Letter Re: E Art Gallery Tattoo February 26, 2019 Page 6 included in any permit to protect against criminal activity. (E.g. Pen. Code, §§ 266j [Procurement of child], 311.2 [Production, distribution, or exhibition of obscene matter], 311.3 [Sexual exploitation of child], 311.6 [Obscene live conduct], 313.1 [Distribution or exhibition of harmful matter to minor]; 314 [indecent exposure]; 11165.1 [sexual exploitation of child]; and so forth].) Because the City Staff has not addressed these important matters, the Appeal should not be granted. In addition, the public has a right to know about, comment on and oppose this this new proposed use. The applicant should be required to submit a new application that describes this new proposed use and the matter should be properly noticed to permit public participation, to which the public is entitled as a matter of law. On a related note, I had asked on several occasions, both by phone and in writing, to be given notice of the date of this appeal. I was told by City Staff member Chelsea Crager on several occasions that I would receive notice. I received no notice. I respectfully request that, when a staff member promises to give notice, said staff member actually give notice. THE CONTENTS OF THE APPLICATION AND THE APPEAL ARE INACCURATE Both the plans submitted with the application and plans submitted with the appeal are grossly inaccurate in both measurements and boundaries. As can be seen immediately by the flawed plans, the overall square footage is grossly overstated. A quick counting of the squares in the site plan in the Planning Commission staff report PowerPoint presentation indicates that the proposed space is approximately 432 square feet. Yet page 4 of the PowerPoint presentation states the square footage as "693 square feet." Similarly, the square footage listed on Attachment H to the staff report for the Appeal lists the square footage of the proposed site as "693 square feet." In addition, the proposed site boundaries depicted in the diagrams in Attachment H are grossly inaccurate. The diagram on page 5 of Attachment H does not depict the actual boundaries of the proposed site. This diagram shows the proposed site as containing space unrelated to the proposed space and also shows two toilet facilities as being directly connected to the proposed space. The building has only one operable toilet facility on the first floor, and it is not connected to nor is it located adjacent to the proposed site. Newport Beach City Council Letter Re: E Art Gallery Tattoo February 26, 2019 Page 7 The diagram on page 2 of Attachment H: • is not drawn to scale; • depicts a two -foot entrance doorway when in fact, the entrance doorway is six feet wide and holds two in -swinging doors; • overstates the project north boundary; • indicates walls where there are none; • overstates the size of the sink area; • depicts circles that are roughly the size of a dinner plate as "tables;" • depicts a "creative space," the size of a closet (8'x9') where art classes with as many as 9 people are proposed to be conducted; • indicates two toilet facilities and presents them as being part of the proposed space when, in fact, there is only one toilet facility, which is shared by all tenants, including at least one dwelling; • overstates the size of the toilet facility; and • does not accurately depict the location of or the means to access the toilet facility. I have attached a corrected site plan. This plan accurately indicates: • The square footage of the proposed space is approximately 417 square feet, which is a little larger than a one -car garage and 276 square feet less than the size stated in the staff report; • the entrance to the proposed space is comprised of two 3 -foot doors that swing into the proposed space, which reduces the useable space to less than 400 square feet; • the door to the toilet facility is 22 inches wide and swings outward into the 33 -inch hallway, toward the person attempting to enter the toilet facility; • The toilet facility is located nearly twenty feet away (along a 33 -inch hallway) from the entrance to the proposed space. The inaccuracies and inconsistencies are easily identifiable by a cursory examination. The City staff should have caught the inaccuracies and demanded they be corrected before the application was accepted. In addition, the City staff should have made a site visit to ensure the drawings were correct. Appellant also supports her appeal with false and inaccurate claims regarding other businesses. Appellant's claims regarding other businesses are of little consequence First, these businesses either do not require special permits (Rockstars of Art) or have no similar issues with Newport Beach City Council Letter Re: E Art Gallery Tattoo February 26, 2019 Page 8 the building or parking (Agape Art Collective). Second, complaining that one business is allowed to operate does not make another business permissible. More important are Appellant's false and inaccurate statements regarding the other business and the proposed business. Appellant falsely claims that Rockstars of Art does not have off-street parking. I have attached a photo of the off-street parking for Rockstars of Art. Applicant also falsely claims that Rockstars of Art is allowed "to bring in any amount of people for any event at any time," and that other businesses could "have [an] unlimited amount of staff and clients at once". Appellant's ignorance of the occupancy load limits and parking requirements is troubling. Finally, Appellant claims that the space proposed by "E Art Gallery," at 2721 E. Coast Highway has "unlimited" and "open" parking, when in fact it has no parking at all. THE PROPOSED SPACE DOES NOT AND CANNOT COMPLY WITH THE REQUIREMENTS OF THE SAFE BODY ART ACT AND ORANGE COUNTY HEALTH REQUIREMENTS The regulations and restrictions on body art facilities and practitioners is very strict. For example: 1. Body art facilities must a. obtain and maintain a valid health permit; b. obtain and operate under a valid infection prevention control plan; c. have all registrations and permits displayed in a conspicuous space; d. have sharps waste containers labeled with the words "sharps waste" or with the international biohazard symbol and the word "BIOHAZARD." e. have floors, ceilings and walls that are smooth, nonabsorbent, free of open holes, and washable; f. have its own toilet facility and if associated with a dwelling, have a toilet facility separate from the dwelling; g. be separated from all business not related to body art, at the discretion of the local enforcement agency; h. maintain permanently installed sinks that comply will all building standards and that have their own source of hot water; i. comply with all current building codes; Newport Beach City Council Letter Re: E Art Gallery Tattoo February 26, 2019 Page 9 It is impossible for the proposed space to meet nearly all of the above requirements. • The Orange County Health permit will not issue at this location. • The ceilings are rough, made of absorbent fibrous tile, are filled with holes and are not washable. (See Photographs.) • The walls are painted wallboard, which is not permissible material. • The proposed space does not have its own toilet facility. • The proposed space contains at least four other proposed businesses all in a one - room 417 square -foot space, where 20 square feet are taken by the doorway, and according to Applicant's and Appellant's drawings, 50 square feet will be used for storage and 160 square feet will be used as the tattoo procedure area. This leaves around 190 square feet for walkways, an art gallery, and an art classroom. • the bar sink does not comply with the plumbing code. In addition, among other things, at least one tenant lives in the building, and thus, the building contains a dwelling unit. (NB Muni. Code § 20.70.020.) This dwelling utilizes the building's toilet facility as its bathroom. Therefore not only does the proposed space not have its own toilet facility as required, the proposed communal building toilet facility is also a dwelling toilet facility. In addition, the non -conforming structure of the proposed space does not meet the building standards. For example, the ceilings on the lower level are only TW high. Many building hallways and doorways do not meet the building or ADA requirements. The sink in the proposed space does not have its own water heater. The building does not have the required access between floors. Although the City may permit non -conforming uses in some situations, it may not override the requirements of the Safe Body Art Act that require tattoo facilities to comply with the building standards. (Cal Health & Saf Code § 119324.) Because the proposed space cannot conform to the building standards, it may not operate as a tattoo parlor. Similarly, because Appellant and Applicant both failed to provide evidence that the proposed space complies with all requirements, the application and the appeal must be denied. THE PROPOSED SPACE DOES NOT AND CANNOT COMPLY WITH THE Newport Beach City Council Letter Re: E Art Gallery Tattoo February 26, 2019 Page 10 REQUIREMENTS FOR OBTAINING A MINOR USE PERMIT The Application contained no evidence necessary to make any of the findings needed to issue a minor use permit. Other than submitting a stack of pre-printed form letters purporting to show support, Applicant proffered no evidence to prove any of the conditions necessary to receive a minor use permit. 1. The Applicant must submit evidence to show that the proposed use complies with all other applicable provisions of this Zoning Code and the Municipal Code. (NB Muni Code § 20.52.020.) Applicant provided nothing to make this showing. Applicant did not submit any proposed construction plans, did not submit any proposed capacity, did not submit any analysis of parking requirements. In fact, Applicant could not make this showing, as it would be impossible to meet this requirement at this location. This building does not conform with the building or zoning standards of the Municipal Code. If Applicant wished to utilize the non -conforming status of the building Applicant was required to but did not, submit evidence that the use or structure was lawfully established, erected, and maintained and is nonconforming by reason of adoption or amendment of this Zoning Code or by reason of annexation of territory to the City. (NB Muni Code § 20.38.030.) In addition, to the extent that the non -conforming laws apply, the construction necessary to make the space useable for a tattoo parlor would require the space to become conforming, which is not possible. (NB Muni Code § 20.38.040 [For any alterations beyond routine repair or maintenance, the nonconforming structure shall be required to be brought into compliance with all applicable standards and regulations of this Zoning Code].) With respect to the Building Code and Fire Code, it is not possible for the building to meet the building and fire standards, some of which are described in this letter. Unlike the Zoning Code, there is no provision for a non -conforming use of a space that does not meet the building or fire code standards. With its 7' 4" ceilings, 22" doorways, narrow hallways, lack of elevator, decades old unpermitted construction and space reconfiguration, just to name a few items, it is impossible for Applicant to meet this element with regard to the proposed space. Newport Beach City Council Letter Re: E Art Gallery Tattoo February 26, 2019 Page 11 2. The Applicant must submit evidence to show that the design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. Applicant did not and cannot. The location in the building is not compatible with the other businesses in the building. Presently there are incompatible businesses such as a children's tutoring business, a counselling center and my law office. There are also two retail clothing stores, which are not compatible with tattoo parlors. A block away, there are two other children's tutoring centers (Mathnasium and Kumon), a children's barber (First Cut), and a children's Taekwondo center (CDM Blackbelt Center). None are compatible with tattoo parlors or live model private art classes. In addition, of the current nine tenants in the building of the proposed space, there are already three businesses that are categorized as "Restricted Use:" two day spas [La Vita Salon & Spa, Suite 110 and Korean Beauty Skin, suite 204] and a nail salon [Ciel Bleu Nail Care suite 208]. Restricted uses are personal service establishments that may tend to have a blighting and/or deteriorating effect upon surrounding areas and that may need to be dispersed from other similar uses to minimize adverse impacts. (NB Muni Code § 20.70.020.) To permit half of the tenants in this tightly packed building to be restricted use will not serve the purpose of disbursing restricted use businesses. 3. The Applicant must submit evidence to show that the site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. The Applicant did not. As discussed above, the proposed uses within the proposed space itself are not compatible with each other. (E.g. tattooing not compatible with minors, minors not compatible with adult live models, live models not compatible with tattooing, tattooing not compatible with art supplies and canvases, etc.) The small size of the proposed space is also not compatible with the proposed uses within the proposed space (Art Gallery, Art Exhibitions and Art Classes in a closet, tattoo procedure area open and not compatible with personal belongings and porous art canvasses). Newport Beach City Council Letter Re: E Art Gallery Tattoo February 26, 2019 Page 12 4. The Applicant must submit evidence to show that the operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. The Applicant did not. The increase in traffic and parking is not compatible or in compliance with the Municipal Code; it is not in keeping with the neighborhood and deprives residents of precious little parking left. In addition, the proposed space is in a building that abuts a residential neighborhood. The building is extremely close to other residential dwellings, both across the street and next door. This further raises health and safety issues, especially because the waste receptacle for the building is mere feet from one home. In addition to the above, there is a very real health and safety problem with permitting a tattoo parlor to operate in a non -conforming building. The Safe Body Art Act was enacted to reduce the spread of blood-borne pathogens and other blood-borne diseases. Operating a tattoo parlor in a building that lacks adequate toilet facilities, lacks access to the toilet facilities, lacks adequate pathways, and has inadequate ventilation, low ceilings with absorbent, non -waterproof ceiling tiles that traverse the suite boundaries into the hallways would create an unacceptable risk to the other tenants as well as their customers. Where, as here, a building cannot comply with the requirements of the Safe Body Art Act, then operating a tattoo parlor in that building would be unsafe. APPELLANT'S AND APPLICANT'S PROPOSED USES REQUIRE MORE THAN JUST A MINOR USE PERMIT. Appellant and/or applicant seeks to offer classes using live models. "Adult model studio' means any premises where there is furnished, provided or procured a figure model or models who pose in any manner which is characterized by its emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical parts where such model(s) is being observed or viewed by any person for the purpose of being sketched, painted, drawn, sculptured, photographed, filmed, or videotaped for a fee, or any other thing of value, as a consideration, compensation or gratuity for the right or opportunity to so observe the model or remain on the Newport Beach City Council Letter Re: E Art Gallery Tattoo February 26, 2019 Page 13 premises. "Adult-oriented business" includes a business establishment that performs as an adult model studio. "Live art class" means any premises on which all of the following occur: there is conducted a program of instruction involving the drawing, photographing or sculpting of live models exposing specified anatomical parts; instruction is offered in a series of at least two classes; the instruction is offered indoors; an instructor is present in the classroom while any participants are present; and preregistration is required at least twenty-four (24) hours in advance of participation in the class. (NB Muni. Code, § 5.96.010.) Adult Model studios require an adult oriented business permit, which may only be issued upon the applicant's proof of certain requirements. (NB Muni. Code, §§ 5.96.015, 5.96.025.) Neither Applicant nor Appellant has applied for such permit. Even if Applicant or Appellant had applied for such permit, no permit could be issued, for, among other reasons the fact that: • Tattooing is not allowed on the same premises as an adult oriented business; • the premises cannot comply with the development and design requirements of the zone in which it is to be located for the specific underlying use, as required; • the premises do not have separate restroom facilities for male and female patrons, as required; • Minors must not be permitted to enter, which would preclude Applicant/Appellant's intent to provide private art lessons to minors; • Applicant/Appellant intends to stage special events, which would increase the parking demand, which is prohibited (NB Muni. Code, § 5.96.025) Applicant was also required to apply for and obtain either a building permit or a zoning clearance. (NB Mui. Code § 20.52.100.) Applicant did not. Had applicant applied for either a building permit or a Zoning Clearance, Applicant would have realized that the proposed uses cannot be permitted at this location. THE PROPOSED USES IMPERMISSIBLY INCREASE PARKING REQUIREMENTS FOR AN ESTABLISHMENT IN A BUILDING WITH NO PARKING 2721 E. Coast Highway has no on-site parking. Subject to exceptions not available here, only those new business uses that require no more than one space per 250 square feet and that do Newport Beach City Council Letter Re: E Art Gallery Tattoo February 26, 2019 Page 14 not do not increase the parking capacity may operate at this location. (NB Muni Code, §§ 20.38.010 et seq., 2138.010 et seq.) Fractional parking space requirements shall be rounded up to the next whole space. If more than one use is located on a site, the number of required off-street parking spaces shall be equal to the sum of the requirements prescribed for each use. (NB Muni Code, § 20.40.020.) Here, the proposed space is approximately 417 sq. ft. Per section 20.40.040 and Table 3-10, Applicant and Appellant's proposed uses require the following parking spaces Business Type Off-street parking Number of spaces required requirement for proposed space Adult -Oriented Businesses 1 per 1.5 occupants' or as 62 required by conditional use permit Retail Sales (Art Gallery) 1 per 250 sq. ft. 2 Studio (dance, music, and 1 per 250 sq. ft. 2 similar) Personal Services 1 per 250 sq. ft. 2 TOTAL 1 per 40 sq. ft. 12 Applicant and Appellant's proposed uses violate even the non -conforming use parking requirements and cannot be approved. Moreover, nonconforming parking is only allowed where the building does not conform only with respect to the parking requirements. In this building, there are several non -conforming issues. The toilet facilities do not comply with the building standards, as they are not handicap accessible, they do not have smooth impervious surfaces surrounding the sink and toilet and they are only 4.75 ft. by 5 ft. in size. The doorways are less than 24 inches wide, the hallways connecting the bathrooms to the other portions of the building are only 33 inches wide, and the door to the lower level toilet facility swings out into the hallway 1 maximum occupancy allowed (NB Muni. Code, § 20.40.030.) 2 Using Applicant's value of "7 artists and one model," plus instructor. Newport Beach City Council Letter Re: E Art Gallery Tattoo February 26, 2019 Page 15 in front of the bathroom, which leaves less than 12 inches of clearance to pass to enter the toilet facility. The ceiling heights are 7 ft. 4 in. high. on the lower level. These are but a few of the non- conforming qualities of the building. In addition, any increase in occupancy load is permitted only upon issuance of a conditional use permit, and Applicant/Appellant have not applied for or obtained any such permit. (NB Muni Code, § 20.38.050.) BECAUSE THE APPLICANT AND ITS PURPORTED OWNERS FAILED TO SUBMIT AN ACCURATE TRUTHFUL APPLICATION, AND BECAUSE THE PURPORTED OWNERS OF THE BUSINESS HAVE FAILED TO COMPLY WITH THE MOST BASIC OF REQUIREMENTS, THEY HAVE SHOWN THAT THEY WILL BE UNABLE OR UNWILLING TO COMPLY WITH THE REQUIREMENTS OF THE SAFE BODY ART ACT AND ORANGE COUNTY HEALTH REQUIREMENTS The regulations and restrictions on body art facilities owners and practitioners are very strict. For example: 2. Body art facility owners must a. maintain a list of all current and prior body art practitioners operating in the facility and notify the local agency writing within 30 days of the resignation, termination, or new hire of a body art practitioner at the body art facility; b. submit plans to the Plan Review Unit of the local enforcement agency. The plans shall be approved in advance of the issuance of a building, plumbing, or electrical permit; c. maintain and follow a written Infection Prevention and Control Plan pursuant to Health and Safety Code section 119313; d. provide initial and annual in-person, site-specific training to every employee on the hazards and the protective measures to be taken to minimize the risk of occupational exposure to blood and OPIM; e. maintain and follow a written Exposure Control And Prevention in compliance with OSHA's Bloodborne Pathogens Standard (29 CFR 1910.1030); f. train all personnel regarding the facility's Infection Prevention and Control Plan, and maintain logs of the training; g. Dispose of waste by a licensed waste hauler. Materials shall be disposed of by disposal after an approved method of decontamination, by disposal at a licensed treatment facility, or by removal and transportation through a mail -back system authorized by the State Department of Public Health; h. maintain records of all sharps waste for three years. Newport Beach City Council Letter Re: E Art Gallery Tattoo February 26, 2019 Page 16 3. Body art Practitioners must a. be at least 18 years old; b. satisfactorily complete OSHA Bloodborne Pathogens Exposure Control Training pursuant to the requirements of paragraph (2) of subdivision (g) of Section 5193 of Title 8 of the California Code of Regulations, or its successor. (Cal Health & Saf Code § 119307 [this requirement applies to all practitioners, employees and volunteers]); c. either be vaccinated against hepatitis B or satisfy all vaccination declination requirements; d. be registered with the County where they practice; e. commit to meet state law and relevant local regulations pertaining to body art safety. Appellant claims that "the facility will be regularly inspected to ensure a sterile work environment, as well as meet [sic] all health regulations set by California Safe Body -Art Act." (Staff Report Attachment G [Revised Project Description], page 2.) Appellant is wrong. Unfortunately, the reality is that the regulatory agencies are overworked and understaffed. As such, inspections rarely occur and the body art industry is virtually self -regulated. As stated in the most recent Law Review Article regarding Tattoos: California requires that tattoo parlors register with the county in which they operate, and requires counties to perform annual inspections of tattoo parlors. Cal. Health & Safety Code §§119300-09 (West 2012). However, neither Los Angeles County nor Orange County require anything approaching annual inspections, and in an era of year -after -year budget cuts, it is doubtful that other counties will comply either. In Los Angeles County, which is the most populous county in the United States, there is one county tattoo inspector to monitor at least 300 tattoo parlors and 850 tattoo artists. See Anderson, 621 F.3d at 1056. "Many tattoo parlors [in Los Angeles County] have never been inspected and are subject to no regulations other than the requirement to register with the County." Id. Indeed, Prix Body Piercing, a tattoo parlor on the famous Colorado Boulevard in Pasadena, California, has been inspected twice in the last eleven years. Interview with Eddie "EdD" Herrera, supra note 178. The inspector ensured that there was soap and running water in the bathroom, hand sanitizer in the parlor, and a sterilizer. Id. The inspector did not examine whether the sterilizer was plugged in or in working order. Id. Tellingly, the 'Body Art and Tattoo" link on the "Permits and Licenses" page of the Los Angeles County municipal website has been inoperative since at least March, 2011. LA County Business, http://lacounty.gov/wps/portal/lac/business/ (last visited Apr. 12, 2012) (follow "Permits & Licenses" link; then follow 'Body Art and Tattoos" link). (Who Owns Your Skin: Intellectual Property Law And Norms Among Tattoo Artists (May 2012) 85 S. Cal. L. Rev. 1137, 1176, n. 266.) Newport Beach City Council Letter Re: E Art Gallery Tattoo February 26, 2019 Page 17 In addition, the City's own inspectors have not addressed the existing or past violations in this building or others. For example, several buildings have had unpermitted construction ongoing for many months without one violation. At least one tenant of this building resides in his/her commercial space; in others, doors and windows have been walled over and obstructed, without violation. We cannot expect the City inspectors or the Orange County Health Department to constantly police a basement commercial space that has all exterior windows obstructed. Ms. Gallegos's promise to abide by the law is of no comfort. Because Ms. Gallegos and/or Mr. Aguirre have been unable to comply with the basics of creating the business entity "E Art Gallery," because both applicant and Appellant have submitted plans that do not portray the actual premises, skew the scale, and falsely state the square footage of the proposed premises, there is good reason to believe that she/he/they will be unable or unwilling to comply with the requirements of the Safe Body Art Act and the Orange County Health requirements. HAD THE APPLICANT FOLLOWED THE PROCEDURAL RULES, IT WOULD HAVE BEEN CLEAR SOONER THAT THE APPLICATION SHOULD BE DENIED Any applicant for a project requiring more than one permit application (e.g., conditional use permit, site development review, tentative map, etc.) shall file all related applications concurrently, with all appropriate application fees. (NB Muni. Code § 2050.030.) Had Applicant filed all necessary applications concurrently (minor use permit, conditional use permit, adult oriented business permit, building permit and Zoning Clearance), then we would not be here, because the City Staff would have seen that the Applicant's proposed uses are not permissible in this building. Thank you for considering this objection to the Appeal of Samantha Gallegos regarding the Planning Commission's proper denial of "E Art Gallery's" minor use permit application. For the reasons above and more, I urge the City of Newport Beach and this Honorable City Council to deny the Appeal. Yours truly, /s Melinda M. Luthin, Esq. encl. v ro a 0 cv CL E _ Ll 0 - U _Ie 7 LUC O C ') 'Propos a. 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