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HomeMy WebLinkAbout02_Tanar's Tobacco Minor Use Permit_PA2023-0032CITY OF NEWPORT BEACH ZONING ADMINISTRATOR STAFF REPORT May 30, 2024 Agenda Item No. 2 SUBJECT: Tanar’s Tobacco (PA2023-0032) ▪Minor Use Permit SITE LOCATION: 2233 West Balboa Boulevard APPLICANT: Glocal 4T Inc OWNER: Glocal 4T Inc PLANNER: Jenny Tran, Assistant Planner 949-644-3212 or jtran@newportbeachca.gov LAND USE AND ZONING •General Plan Land Use Plan Category: Mixed-Use Water 2 (MU-W2) •Zoning District: Mixed-Use Water (MU-W2) •Coastal Land Use Plan Category: Mixed-Use Water Related (MU-W) •Coastal Zoning District: Mixed-Use Water (MU-W2) PROJECT SUMMARY A minor use permit to allow a Type 20 (Off-Sale Beer & Wine) Alcoholic Beverage Control (ABC) license at an existing tobacco retail store. The Type 20 (Off-Sale Beer & Wine) ABC license would allow the existing retail business to sell beer and wine for off-site consumption. No other changes to the operation are requested and no construction is proposed. No on-site consumption of alcohol is proposed as part of the project. RECOMMENDATION 1)Conduct a public hearing; 2)Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Article 18, Section 15270 (Projects Which Are Disapproved) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3 because a project which a public agency rejects or disapproves is statutorily exempt and not subject to review under CEQA; and 3)Adopt Draft Zoning Administrator Resolution No. _ denying the Minor Use Permit filed as PA2023-0032 (Attachment No. ZA 1). 1 Tanar’s Tobacco (PA2023-0032) Zoning Administrator, May 30, 2024 Page 2 Tmplt: 01/18/23 DISCUSSION •The property is located on the peninsula on the southern corner of West Balboa Boulevard and 23rd Street near McFadden Square. The existing retail business is located within a small shopping center that is developed with several commercial uses including a tattoo shop, a bicycle rental, and restaurants. The surrounding properties are developed with commercial uses as well as residential uses across 23rd Street and the West Oceanfront alley. The property is approximately 270-feet from the public beach. •The property consists of an existing retail sales land use (i.e., tobacco store) and the Applicant is proposing to add a Type 20 (Off-Sale Beer & Wine) Alcoholic Beverage Control (ABC) License. No construction is proposed as part of the project. •The existing tobacco store has one employee, and the business currently operates between the hours of 9:00 a.m. and 9:00 p.m., daily. No changes to the hours of operation are proposed. •The Land Use Element of the General Plan designates the project site as Mixed- Use Water 2 (MU-W2) and located within the MU-W2 Zoning District, which is applied to waterfront locations in which marine-related uses may be intermixed with buildings that provide residential on the upper floors. The existing tobacco store is a general commercial use that serves visitors, residents, and employees in the City. The proposed addition of alcohol sales requires the approval of a minor use permit. •The property is within the coastal zone. However, the proposed project does not change the intensity of use and, therefore, does not require a coastal development permit. •The Newport Beach Police Department (NBPD) reviewed the proposed application on October 10, 2023, and does not support the request due to the high concentration of ABC Licenses in this area and number of alcohol related crimes in the reporting district. The NBPD’s memorandum, crime and alcohol- related statistics, and reporting district map are included in Attachment No. ZA 3. •The NBPD reviewed the proposed application again on May 13, 2024, to reevaluate the business after they made significant positive changes. For example, during the applicant’s ABC License process, ABC Agents discovered the applicant was selling items considered to be drug paraphernalia under Section 24200.6 of the Business & Profession Code. Whereas, during a recent site visit, the business was compliant with all laws and all drug paraphernalia had been removed. However, the NBPD continues to not support the project due to 2 Tanar’s Tobacco (PA2023-0032) Zoning Administrator, May 30, 2024 Page 3 Tmplt: 01/18/23 the location’s undue concentration pertaining to on-sale and off-sale alcohol licenses. The updated NBPD’s memorandum are included in Attachment No. ZA 4.The Police Department’s recommendation has not changed and a draft Resolution of denial for the application is included as Attachment No. ZA 1. •Due to the adjacent residential developments, proximity to the beach, and over concentration of off-sale alcohol licenses in the area, the request to add a Type 20 ABC License to the tobacco store would be detrimental to the harmonious and orderly growth of the City, and 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. ENVIRONMENTAL REVIEW A project which a public agency rejects or disapproves is statutorily exempt and not subject to review under the California Environmental Quality Act (CEQA) pursuant to Article 18, Section 15270 (Projects Which Are Disapproved) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3. PUBLIC NOTICE Notice of this application was published in the Daily Pilot, mailed to all owners of property within 300 feet of the boundaries of the site (excluding intervening rights-of- way and waterways), including the applicant, and posted on the subject property at least 10 days before the scheduled hearing, consistent with the provisions of the Municipal Code. Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the City website. APPEAL PERIOD: An appeal or call for review may be filed with the Director of Community Development within 14 days following the date of the action. For additional information on filing an appeal, contact the Planning Division at 949-644-3200. Prepared by: ____________________________ Jenny Tran Assistant Planner LAW/jt 3 Tanar’s Tobacco (PA2023-0032) Zoning Administrator, May 30, 2024 Page 4 Tmplt: 01/18/23 Attachments: ZA 1 Draft Resolution ZA 2 Vicinity Map ZA 3 Police Department Memorandum dated October 10, 2023 ZA 4 Police Department Memorandum dated May 13, 2023 ZA 5 Floor Plan 4 Attachment No. ZA 1 Draft Resolution 5 RESOLUTION NO. ZA2024-### A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH DENYING A MINOR USE PERMIT FOR A TYPE 20 (OFF-SALE BEER & WINE) ALCOHOLIC BEVERAGE CONTROL (ABC) LICENSE FOR A TOBACCO RETAIL STORE LOCATED AT 2233 WEST BALBOA BLVD (PA2023-0032) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1.An application was filed by Glocal 4T, INC. dba Tanar’s Tobacco, with respect to property located at 2233 West Balboa Boulevard, and legally described as Parcel 1 of Parcel Map No. 2007-146, requesting approval of a minor use permit. 2.The applicant requests a minor use permit to allow a Type 20 (Off-Sale Beer & Wine) Alcoholic Beverage Control (ABC) license at an existing tobacco retail store. The Type 20 (Off-Sale Beer & Wine) ABC license would allow the existing retail business to sell beer and wine for off-site consumption. No other changes to the operation are requested and no construction is proposed. No on-site consumption of alcohol is proposed as part of the project. 3.The subject property is designated Mixed-Use Water 2 (MU-W2) by the General Plan Land Use Element and is located within the Mixed-Use Water (MU-W2) Zoning District. 4.The subject property is located within the coastal zone. The Coastal Land Use Plan category is Mixed-Use Water Related (MU-W) and it is located within the Mixed-Use Water (Mixed-Use Water) Coastal Zone District. The project does not represent an intensification of use from the existing tobacco shop and is not considered “development”, therefore, a coastal development permit is not required. 5.A public hearing was held on May 30, 2024, online via Zoom. A notice of time, place and purpose of the hearing was given in accordance with the Newport Beach Municipal Code (NBMC). Evidence, both written and oral, was presented to, and considered by, the Zoning Administrator at this hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. A project which a public agency rejects or disapproves is statutorily exempt and not subject to review under the California Environmental Quality Act (CEQA) pursuant to Article 18, Section 15270 (Projects Which Are Disapproved) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3. 6 Zoning Administrator Resolution No. ZA2024-### Page 2 of 3 10-18-21 SECTION 3. REQUIRED FINDINGS. In reviewing a request for a minor use permit for an establishment that sells alcohol, the review authority must make the findings in Section 20.52.020 (F) (Conditional Use Permits and Minor Use Permits – Findings and Decision) and Section 20.48.030(C)(3) (Alcohol Sales –Required Findings) of the NBMC. In this case, the Zoning Administrator has determined the request cannot be granted for the following reasons: 1.The property is located on the peninsula within the McFadden Square area in the Mixed-Use Water 2 (MU-W2) Zoning District of the NBMC and is designated MU-W2 of the Land Use Element of the General Plan. The surrounding properties are developed with both commercial and residential uses. There are 19 establishments with on-sale ABC licenses within the McFadden Square area which is considered an area that is significantly oversaturated with ABC licenses. 2.The Newport Beach Police Department (NBPD) reviewed the proposed application on October 10, 2023, and does not support the request due to the high concentration of existing ABC Licenses in this area. 3.The NBPD reviewed the proposed application again on May 13, 2024, to reevaluate the business after they made significant positive changes. For example, during the applicant’s ABC License process, ABC Agents discovered the applicant was selling items considered to be drug paraphernalia under Section 24200.6 of the Business & Profession Code. Whereas, during a recent site visit, the business was compliant with all laws and all drug paraphernalia had been removed. Although the applicant addressed an objectionable condition of the business, the NBPD continues to not support the project due to the location’s undue concentration pertaining to on-sale and off-sale alcohol licenses. 4.The property is located in the NBPD Reporting District 15 (RD 15), which is the highest crime area in Newport Beach with significant quality-of-life concerns for the residents, as well as the Police Department. The NBPD is required to report offenses of criminal homicide, forcible rape, robbery, aggravated assault, burglary, larceny, theft, and motor vehicle theft, combined with all arrests for other crimes, both felonies and misdemeanors (except traffic citations) to the Department of ABC. These figures make up the “Crime Count.” RD 15’s ABC crime count is 914, which is 805% over the Citywide average crime count of 118. Since this area has at least a 20% greater number of reported crimes than the citywide average number of reported crimes, the area is found to have undue concentration. In comparison, nearby RD 13 is 226% above the citywide average, RD 16 is 94% above, and RD 25 is 111% above. 5.The property is located within census tract 0635.00 that has six off-sale licenses and a per capita ratio of one off-sale license for every 823 residents. Per the Business and Professions code, this ratio must be compared to the per capita ratio of Orange County of one off-sale license for every 1,730 residents. Since the area’s ratio 7 Zoning Administrator Resolution No. ZA2024-### Page 3 of 3 10-18-21 exceeds the ratio of retail licenses to population in the county, the area is deemed to have an undue concentration of off-sale alcohol licenses. 6.The project would increase the burden on police resources and exacerbate current quality-of-life challenges for residents, visitors, and businesses, and would generate additional public safety concerns in RD 15. 7.Due to the type of ABC license requested, the NBPD would be required to submit a determination of Public Convenience or Necessity (PCN) to demonstrate that the business operation will provide a benefit to the surrounding community. Approval of a minor use permit would indicate that the City deems this business as a benefit to the community and, therefore, serves as a PCN. 8.The property is adjacent to residential uses across the street along 23rd Street and the West Oceanfront alley. Additionally, the property is located approximately 270-feet from the beach and the addition of a Type 20 ABC license would not be appropriate within proximity to these uses. 9.Due to the adjacent residential developments, proximity to the beach, and over concentration of off-sale alcohol licenses in the area, the request to add a Type 20 ABC License to the tobacco store would be detrimental to the harmonious and orderly growth of the City, and 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. NOW, THEREFORE, BE IT RESOLVED: 1.The Zoning Administrator of the City of Newport Beach hereby finds this project is statutorily exempt from CEQA under Article 18, Section 15270 (Projects Which Are Disapproved) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3. 2.The Zoning Administrator of the City of Newport Beach hereby denies the Minor Use Permit filed as PA2023-0032. 3.This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal or call for review is filed with the Community Development Director in accordance with the provisions of Title 20 (Planning and Zoning), of the Newport Beach Municipal Code. PASSED, APPROVED, AND ADOPTED THIS 30TH DAY OF MAY 2024. _____________________________________ Benjamin M. Zdeba, AICP, Zoning Administrator 8 Attachment No. ZA 2 Vicinity Map 9 VICINITY MAP Minor Use Permit PA2023-0032 2233 West Balboa Boulevard Subject Property 10 Attachment No. ZA 3 Police Department Memorandum dated October 10, 2023 11 NEWPORT BEACH POLICE DEPARTMENT DETECTIVE DIVISION MEMORANDUM TO: Jenny Tran, Assistant Planner FROM: Wendy Joe, Police Civilian Investigator DATE: October 10, 2023 SUBJECT: Tanars Tobacco 2233 West Balboa Blvd. PA2023-0032 At your request, the Police Department has reviewed the project application for Tanars Tobacco, located at 2233 West Balboa Blvd, Newport Beach. Per the project description, the applicant is seeking a minor use permit to add a Type 20 (Off-Sale Beer & Wine) Alcohol Beverage Control License. No changes are proposed to the current operating hours of 9 a.m. to 9 p.m., daily Statistical Data and Public Convenience or Necessity Attached is a summary report which provides detailed statistical information related to alcohol establishments in and around the applicant’s proposed place of business at 2233 West Balboa Blvd. Business and Professions Code §23958.4 finds “undue concentration” for an applicant premises in two ways: 20% higher crime (with an alcohol nexus) in a Reporting District as compared to the City-wide average, or an over-saturation of alcohol licenses in a census tract compared to the county. Crime Statistics in and around Reporting District 15: The Police Department divides the City into areas referred to as Reporting Districts. This allows the Police Department to compile statistical data, as well as better communicate officer locations while policing. The proposed applicant location is within Reporting District (RD) 15 which stretches from 20th Street to 37th Street along the Newport Beach Peninsula. Per Business and Professions Code §23958.4, the Police Department is required to report offenses of criminal homicide, forcible rape, robbery, aggravated assault, burglary, larceny, theft, and motor vehicle theft, combined with all arrests for other crimes, both felonies and misdemeanors (except traffic citations) to the Department of Alcoholic Beverage Control (ABC). These figures make up the “Crime Count” which is indicated on the attached statistical data form. RD 15 is our highest crime area in Newport Beach with significant quality-of-life concerns for the residents, as well as the Police Department. The Reporting District’s ABC Crime Count is 914, 805% over the City-wide Crime Count average of 118. Since this area has a 20% greater number of reported crimes than the average number of reported crimes as determined from all crime Reporting Districts within the City, the area is found to have undue concentration. In comparison, 12 Tanars Tobacco PA2023-0032 2 neighboring RD 13 (9th Street to 20th Street) is 226% higher than the City-wide average, RD 16 (37th Street to 54th Street) is 94% higher, and RD 25 (North of West Coast Hwy between Newport Blvd. and Irvine Ave.) is 111% higher. Of 38 Reporting Districts in Newport Beach, we reported 12 to ABC as high-crime areas. The highest volume crime in this area is aggravated assault. The highest volume arrest in the area is Disorderly Conduct. In this Reporting District, 37% of all arrests are directly attributed to alcohol use: Public Intoxication, DUI, or liquor law violations. In comparison, that figure is 23% in RD 13, 19% in RD 16, and 25% in RD 25. This location meets the legal criteria for undue concentration pertaining to crime (B&P §23958.4) with a nexus to alcohol. Alcohol License Statistics in and around Census Tract 0635.00: The applicant premise is located within census tract 0635.00. This census tract has an approximate population of 4,938 residents with 65 active on-sale alcohol licenses. That is a per capita ratio of 1 on-sale license for every 76 residents making this area heavily saturated with on-sale alcohol establishments. In comparison, the per capita ratio in Orange County is 1 on- sale license for every 822 residents. This application requests an off-sale license. This census tract has 6 off-sale licenses and a per capita ratio of 1 off-sale license for every 823 residents. Per the Business and Professions code, we must compare this per capita ratio to Orange County’s off-sale per capita ratio of 1 license for every 1,730, residents. Since the area’s ratio exceeds the ratio of retail licenses to population in the county, the area is deemed to have an undue concentration of off-sale alcohol licenses. This location meets the legal criteria for undue concentration pertaining to on-sale and off-sale alcohol licenses (B&P §23958.4). Discussion and Recommendations It is the Police Department’s opinion that this project would increase the burden on police resources in RD 15. Added access to alcohol in the immediate area would increase current quality of life challenges for the residents, visitors, and businesses, and would generate additional public safety concerns in this already impacted Reporting District. Those public safety concerns include crimes typically associated with alcohol consumption: vandalism, assault, public intoxication, driving under the influence, urinating in public, fighting, noise violations and sexual assault. This particular neighborhood of RD 15 is significantly over-saturated with ABC establishments. There are currently 19 on-sale ABC Establishments within the McFadden Square area from the Newport Pier to 23rd Street. There are four off-sale establishments that service the citizens in the immediate area: Pavilions at 32nd and Newport Blvd. Sportsman Liquor at 26th and Newport Blvd. 7-Eleven at 20th and Balboa Blvd. 13 Tanars Tobacco PA2023-0032 3 Fry’s Market at 15th and Balboa Blvd. Due to the type of ABC license being requested and the presence of undue concentration, ABC will require the Police Department to submit a determination of Public Convenience or Necessity (PCN) prior to approval of the ABC license. PCN is demonstrated when the business operation provides some kind of benefit to the surrounding community. Approval of a use permit will indicate that the City of Newport Beach deems this business as a benefit to the community and therefore serves as a Public Convenience or Necessity. The Chief of Police will submit written documentation of that determination. During the applicant’s ABC license process, ABC Agents discovered the applicant was selling items considered to be drug paraphernalia under Section 24200.6 of the Business & Professions Code. Those items include but are not limited to bongs and pipes. The business was notified of the law and is required to remove such items. RECOMMENDED CONDITIONS OF APPROVAL The Police Department does not support this application. However, should this application be approved, the Police Department requests the following conditions be imposed. 1.The Alcoholic Beverage Control License shall be limited to a Type 20 (Off-Sale Beer and Wine). Any substantial change in the ABC license type shall require subsequent review and potential amendment of the Use Permit. 2.The applicant shall comply with all federal, state, and local laws, and all conditions of the Alcoholic Beverage License. Material violation of any of those laws or conditions in connection with the use is a violation and may be cause for revocation of the use permit. 3.All owners, managers and employees selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for selling alcoholic beverages within 60 days of hire. This training must be updated every 3 years regardless of certificate expiration date. The certified program must meet the standards of the certifying/licensing body designated by the State of California. The establishment shall comply with the requirements of this section within 60 days of approval. Records of each owner’s manager’s and employee’s successful completion of the required certified training program shall be maintained on the premises and shall be presented upon request by a representative of the City of Newport Beach. 4.No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee. 5.No alcoholic beverages shall be sold between the hours of 9:00 p.m. and 9:00 a.m. 6.Patrons shall be required to show valid identification to verify age at the point of sale for alcohol. 7.Open container beer or wine sales are prohibited. 8.No person under the age of 21 shall sell or deliver alcoholic beverages. 14 Tanars Tobacco PA2023-0032 4 9.The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter, and debris from the premises and on all abutting sidewalks within 20 feet of the premises. Graffiti shall be removed within 48 hours of written notice from the City. 10.The applicant shall post and maintain a professional quality sign facing the premise’s parking lot that reads: NO LOITERING, NO LITTERING, NO DRINKING OF ALCOHOL BEVERAGES VIOLATORS ARE SUBJECT TO ARREST 11.The operator of the facility shall be responsible for the control of noise generated by the subject facility. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. 12.The applicant shall maintain a security recording system with a 30-day retention and make those recording available to police upon request. 13.The applicant must not retain or sell any items considered to be drug paraphernalia under Section 24200.6 of the Business & Professions Code. If you have any questions as to the content of this memorandum, please contact Investigator Wendy Joe at (949)644-3705 or wjoe@nbpd.org. Wendy Joe Police Civilian Investigator, Special Investigations Unit 15 CITATIONS GROUP A OFFENSES GROUP B OFFENSES CRIME RATE HIGHEST VOLUME ALL ARRESTS DUI ALCOHOL PUBLIC INTOXICATION LIQUOR LAW HIGHEST VOLUME ALCOHOL RELATED 2233 W. Balboa Blvd. Suite 108 19 3 0 N/A N/A 0 0 0 0 N/A 0 Subject RD: RD15 8,707 547 275 19,591.69 AGGRAVATED ASSAULT 453 53 113 1 DISORDERLY CONDUCT 102 Adjacent RD: RD13 4,674 246 74 14,918.13 THEFT/LARCENY 167 5 32 1 NARCOTICS 36 Adjacent RD: RD16 3,198 155 46 6,551.14 THEFT/LARCENY 94 4 14 0 NARCOTICS 47 Adjacent RD: RD25 3,390 174 58 6,194.38 THEFT/LARCENY 83 14 7 0 NARCOTICS 6 Newport Beach 101,169 5,103 1,434 5,886.22 THEFT/LARCENY 2,732 291 339 7 NARCOTICS 312 Subject:Population ON-SALE Licenses ON-SALE License Per Capita OFF-SALE Licenses OFF-SALE License Per Capita TOTAL RETAIL LICENSES TOTAL RETAIL LICENSES PER CAPITA Subject: CRIME COUNT DIFF FROM AVG %DIFF FROM AVG 2233 W. Balboa Blvd. Suite 108 N/A 1 N/A 0 N/A 1 N/A 2233 W. Balboa Blvd. Suite 108 3 N/A N/A Subject Census Tract: 635 4,938 65 76 6 823 71 70 Subject RD: RD15 914 +796 +675% Adjacent Census Tract: 628 3,806 26 146 5 761 31 123 Adjacent RD: RD13 385 +267 +226% Adjacent Census Tract: 636.03 6,450 6 1,075 5 1,290 11 586 Adjacent RD: RD16 229 +111 +94% Adjacent Census Tract: 634 4,776 17 281 0 0 17 281 Adjacent RD: RD25 249 +131 +111% Newport Beach 86,694 279 311 66 1,314 345 251 Newport Beach 4,484 Orange County 3,186,989 3,876 822 1,842 1,730 5,718 557 All Population figurs taken from 2020 US Census. Per BP 23958.4, the "ABC Crime Count" includes offenses of criminal homicide, forcible rape, robbery, aggravated assault, burglary, larceny, theft, and motor vehicle theft, combined with all arrests for other crimes, both felonies and misdemeanors (except traffic citations). Summary for Tanars Tobacco at 2233 W. Balboa Blvd. Suite 108 (RD15) Subject: DISPATCH EVENTS ACTIVE RETAIL ABC LICENSES ARRESTS This report reflects City of Newport Beach data for 2022. The NIBRS Group A Offense category is made up of 49 offenses used to report crimes committed within a law enforcement agency's jurisdiction. NIBRS Group B Offenses are less serious offenses that require an arrest to be reportable. Crime Rate refers to the number of Group A Crimes per 100,000 people. RD Average = 118 ABC CRIME COUNT REPORTED CRIMES CHIEF JOSEPHL. CARTWRIGHT Newport Beach Police Department 2023 Crime and Alcohol-Related Statistics as of 07/18/2023 16 Attachment No. ZA 4 Police Department Memorandum dated May 13, 2023 17 NEWPORT BEACH POLICE DEPARTMENT DETECTIVE DIVISION MEMORANDUM TO: Jenny Tran, Assistant Planner FROM: Wendy Joe, Police Civilian Investigator DATE: May 13, 2024 SUBJECT: Tanars Tobacco 2233 West Balboa Blvd. PA2023-0032 At your request, the Police Department has reviewed the project application for Tanars Tobacco, located at 2233 West Balboa Blvd, Newport Beach. Per the project description, the applicant is seeking a minor use permit to add a Type 20 (Off-Sale Beer & Wine) Alcohol Beverage Control License. No changes are proposed to the current operating hours of 9 a.m. to 9 p.m., daily Statistical Data and Public Convenience or Necessity Attached is a summary report which provides detailed statistical information related to alcohol establishments in and around the applicant’s proposed place of business at 2233 West Balboa Blvd. Business and Professions Code §23958.4 finds “undue concentration” for an applicant premises in two ways: 20% higher crime (with an alcohol nexus) in a Reporting District as compared to the City-wide average, or an over-saturation of alcohol licenses in a census tract compared to the county. Crime Statistics in and around Reporting District 15: The Police Department divides the City into areas referred to as Reporting Districts. This allows the Police Department to compile statistical data, as well as better communicate officer locations while policing. The proposed applicant location is within Reporting District (RD) 15 which stretches from 20th Street to 37th Street along the Newport Beach Peninsula. Per Business and Professions Code §23958.4, the Police Department is required to report offenses of criminal homicide, forcible rape, robbery, aggravated assault, burglary, larceny, theft, and motor vehicle theft, combined with all arrests for other crimes, both felonies and misdemeanors (except traffic citations) to the Department of Alcoholic Beverage Control (ABC). These figures make up the “Crime Count” which is indicated on the attached statistical data form. RD 15 is our highest crime area in Newport Beach with significant quality-of-life concerns for the residents, as well as the Police Department. The Reporting District’s ABC Crime Count is 914, 805% over the City-wide Crime Count average of 118. Since this area has a 20% greater number of reported crimes than the average number of reported crimes as determined from all crime Reporting Districts within the City, the area is found to have undue concentration. In comparison, 18 Tanars Tobacco PA2023-0032 2 neighboring RD 13 (9th Street to 20th Street) is 226% higher than the City-wide average, RD 16 (37th Street to 54th Street) is 94% higher, and RD 25 (North of West Coast Hwy between Newport Blvd. and Irvine Ave.) is 111% higher. Of 38 Reporting Districts in Newport Beach, we reported 12 to ABC as high-crime areas. The highest volume crime in this area is aggravated assault. The highest volume arrest in the area is Disorderly Conduct. In this Reporting District, 37% of all arrests are directly attributed to alcohol use: Public Intoxication, DUI, or liquor law violations. In comparison, that figure is 23% in RD 13, 19% in RD 16, and 25% in RD 25. This location meets the legal criteria for undue concentration pertaining to crime (B&P §23958.4) with a nexus to alcohol. Alcohol License Statistics in and around Census Tract 0635.00: The applicant premise is located within census tract 0635.00. This census tract has an approximate population of 4,938 residents with 65 active on-sale alcohol licenses. That is a per capita ratio of 1 on-sale license for every 76 residents making this area heavily saturated with on-sale alcohol establishments. In comparison, the per capita ratio in Orange County is 1 on- sale license for every 822 residents. This application requests an off-sale license. This census tract has 6 off-sale licenses and a per capita ratio of 1 off-sale license for every 823 residents. Per the Business and Professions code, we must compare this per capita ratio to Orange County’s off-sale per capita ratio of 1 license for every 1,730, residents. Since the area’s ratio exceeds the ratio of retail licenses to population in the county, the area is deemed to have an undue concentration of off-sale alcohol licenses. This location meets the legal criteria for undue concentration pertaining to on-sale and off-sale alcohol licenses (B&P §23958.4). Discussion and Recommendations The PD does not support this project due to the location’s undue concentration. However, it is important to acknowledge that since the original application, the business has made significant positive changes. For example, during the applicant’s ABC license process, ABC Agents discovered the applicant was selling items considered to be drug paraphernalia under Section 24200.6 of the Business & Professions Code. Those items included but are not limited to bongs and pipes. During a recent site visit, the business was compliant with all laws and all drug paraphernalia had been removed. It is the Police Department’s opinion that this project would increase the burden on police resources in RD 15. Added access to alcohol in the immediate area would increase current quality of life challenges for the residents, visitors, and businesses, and would generate additional public safety concerns in this already impacted Reporting District. Those public safety concerns include crimes typically associated with alcohol consumption: vandalism, assault, public intoxication, driving under the influence, urinating in public, fighting, noise violations and sexual assault. 19 Tanars Tobacco PA2023-0032 3 This particular neighborhood of RD 15 is significantly over-saturated with ABC establishments. There are currently 19 on-sale ABC Establishments within the McFadden Square area from the Newport Pier to 23rd Street. There are four off-sale establishments that service the citizens in the immediate area: Pavilions at 32nd and Newport Blvd. Sportsman Liquor at 26th and Newport Blvd. 7-Eleven at 20th and Balboa Blvd. Fry’s Market at 15th and Balboa Blvd. Due to the type of ABC license being requested and the presence of undue concentration, ABC will require the Police Department to submit a determination of Public Convenience or Necessity (PCN) prior to approval of the ABC license. PCN is demonstrated when the business operation provides some kind of benefit to the surrounding community. Approval of a use permit will indicate that the City of Newport Beach deems this business as a benefit to the community and therefore serves as a Public Convenience or Necessity. The Chief of Police will submit written documentation of that determination. RECOMMENDED CONDITIONS OF APPROVAL Should this application be approved, the Police Department requests the following conditions be imposed. 1.The Alcoholic Beverage Control License shall be limited to a Type 20 (Off-Sale Beer and Wine). Any substantial change in the ABC license type shall require subsequent review and potential amendment of the Use Permit. 2.The applicant shall comply with all federal, state, and local laws, and all conditions of the Alcoholic Beverage License. Material violation of any of those laws or conditions in connection with the use is a violation and may be cause for revocation of the use permit. 3.All owners, managers and employees selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for selling alcoholic beverages within 60 days of hire. This training must be updated every 3 years regardless of certificate expiration date. The certified program must meet the standards of the certifying/licensing body designated by the State of California. The establishment shall comply with the requirements of this section within 60 days of approval. Records of each owner’s manager’s and employee’s successful completion of the required certified training program shall be maintained on the premises and shall be presented upon request by a representative of the City of Newport Beach. 4.No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee. 5.No alcoholic beverages shall be sold between the hours of 9:00 p.m. and 9:00 a.m. 20 Tanars Tobacco PA2023-0032 4 6.Patrons shall be required to show valid identification to verify age at the point of sale for alcohol. 7.Open container beer or wine sales are prohibited. 8.No person under the age of 21 shall sell or deliver alcoholic beverages. 9.The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter, and debris from the premises and on all abutting sidewalks within 20 feet of the premises. Graffiti shall be removed within 48 hours of written notice from the City. 10.The applicant shall post and maintain a professional quality sign facing the premise’s parking lot that reads: NO LOITERING, NO LITTERING, NO DRINKING OF ALCOHOL BEVERAGES VIOLATORS ARE SUBJECT TO ARREST 11.The operator of the facility shall be responsible for the control of noise generated by the subject facility. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. 12.The applicant shall maintain a security recording system with a 30-day retention and make those recording available to police upon request. 13.The applicant must not retain or sell any items considered to be drug paraphernalia under Section 24200.6 of the Business & Professions Code. If you have any questions as to the content of this memorandum, please contact Investigator Wendy Joe at (949)644-3705 or wjoe@nbpd.org. Wendy Joe Police Civilian Investigator, Special Investigations Unit 21 Attachment No. ZA 5 Floor Plan 22 23 24 Community Development Department CITY OF NEWPORT BEACH COMMUNITY DEVELOPMENT DEPARTMENT 100 Civic Center Drive Newport Beach, California 92660 949 644-3200 newportbeachca.gov/communitydevelopment Memorandum To: Zoning Administrator From: Jenny Tran, Assistant Planner Date: May 29, 2024 Re: Item No. 2: Tanar’s Tobacco Minor Use Permit ________________________________________________________________ The applicant is requesting the Zoning Administrator considering the Draft Resolution for Approval as prepared by the applicant as well as six Resolutions that have been previously approved. Enc: Draft Resolution for Approval Resolution No. 2021-026 Resolution No. 2021-031 Resolution No. 2021-057 Resolution No. 2022-024 Resolution No. 2022-025 Resolution No. 2022-046 Zoning Administrator - May 30, 2024 Item No. 2a - Additional Materials Received After Deadline Tanar's Tobacco Minor Use Permit (PA2023-0032) [DRAFT RESOLUTION FOR APPROVAL PREPARED BY APPLICANT] Zoning Administrator Resolution No. ZA2024-### Page 3 of 3 SECTION 3. REQUIRED FINDINGS. In reviewing a request for a minor use permit for an establishment that sells alcohol, the review authority must make the findings in Section 20.52.020 (F) (Conditional Use Permits and Minor Use Permits – Findings and Decision) and Section 20.48.030(C)(3) (Alcohol Sales –Required Findings) of the NBMC. In this case, the Zoning Administrator has determined the request can be granted for the following reasons: In accordance with Section 20.48.030 (Alcohol Sales) of the Newport Beach Municipal Code (NBMC), the following findings and facts in support of the findings for a use permit are set forth: Facts in Support of Finding In finding that the proposed use is consistent with Section 20.48.030 (Alcohol Sales) of the Zoning Code, the following criteria must be considered: i.The crime rate in the reporting district and adjacent reporting districts as compared to other areas in the City. 1.The crime rate in the subject reporting district (RD 15) as well as two (2) of the three (3) adjacent RDs (Reporting Districts) are over the City average. RD 15 contains the large commercial shopping centers known as The Landing at 32nd Street and Balboa Boulevard and much of Via Lido and Balboa Boulevard; and McFadden Square Area in the Mixed-Use Water 2 (MU-W2) Zoning District of the NBMC and is designated MU-W2 of the Land Use Element of the General Plan. The surrounding properties are developed with both commercial and residential uses. There are 19 establishments with on- sale ABC licenses within the McFadden Square area alone, and 61 total on- sale licenses for census tract 0635.00. Per ABC guidelines a total of 6 on-sale licenses are allowed, with the city having approved 55 over the allowable number of on-sale licenses despite RD15’s high crime rate. Despite the high crime rate, the City has regularly recognized, and does so again here, the purpose of the Zoning of these beach areas is to provide various commercial and retail uses to support the surrounding residential area as well as the surrounding tourist destinations. Therefore, these beach areas with a higher concentration of commercial land uses tend to have a higher crime rate than adjacent RDs. ii.The numbers of alcohol-related calls for service, crimes, or arrests in the reporting district and in adjacent reporting districts. 1.Due to the high concentration of commercial land uses, the calls for service and number of arrests are greater than adjacent RDs. Additionally, this is the beach area that is considered one of the most significant tourist areas of the City. iii.The proximity of the establishment to residential zoning districts, day care centers, Zoning Administrator - May 30, 2024 Item No. 2a - Additional Materials Received After Deadline Tanar's Tobacco Minor Use Permit (PA2023-0032) [DRAFT RESOLUTION FOR APPROVAL PREPARED BY APPLICANT] Zoning Administrator Resolution No. ZA2024-### Page 3 of 3 hospitals, park and recreation facilities, places of worship, schools, other similar uses, and any uses that attract minors. 1.The subject property is located in a mixed-use district with some nearby residential development is permitted. Residents within the prescribed area in the code were notified of the applicant’s request and no objections or protests to the application have been received. 2.The nearest place of recreation, the beach, is located approximately one half 270 feet to the west. There are no nearby churches, parks or schools within 1,500 feet, and substantially separated from the Property by commercial properties and residential properties. 3.Balboa Peninsula, to include McFadden Square, is generally characterized by a high number of visitors, in which commercial and residential zoning districts are located in close proximity to one another. This location in McFadden Square has greater distance from sensitive land uses than other commercial areas. iv.The proximity to other establishments selling alcoholic beverages for either off-site or on-site consumption. 1.The McFadden Square was constructed to accommodate multiple restaurants, retail, and commercial establishments. In fact, McFadden Square alone has 19 on-sale liquor licenses associated with restaurant and bar uses. These on-sale locations provide a different service and amenity than that being requested by the applicant. Moreover, there are limited off-sale locations providing the products and amenities offered by this applicant, with the closest similar type off-sale license operating 0.2 miles away across the main arterial thoroughfare of Balboa Boulevard. Therefore the addition of the requested Type 20 license off-sale will add an additional public convenience and serve the necessity of the surrounding area, its residents, employees, visitors, guests and tourists. 2.Due to the type and operation of the applicant, which is conditioned to close at 9 pm and the incorporation of additional conditions to prevent or mitigate any potential public safety concerns the proximity to other establishments does not appear to create a foreseeable harm. v.Whether or not the proposed amendment will resolve any current objectionable conditions 1.The existing commercial building has been occupied by applicant, which has operated as a general convenience and tobacco establishment since 2011. Applicant has operated at the location for the entirety of its existence, and has done so without a single citation or other formal regulatory or administrative action, to include but not be limited to code enforcement, tobacco permit, or other violations. Applicant’s request to add a very limited offering of beer and wine will not result in any objectionable conditions. In addition the facts have shown that applicant has immediately addressed and resolved objectionable conditions initially noted by Newport Beach PD and is and continues to act responsibly in ensuring no objectionable conditions exist or will exist at the subject site. Zoning Administrator - May 30, 2024 Item No. 2a - Additional Materials Received After Deadline Tanar's Tobacco Minor Use Permit (PA2023-0032) [DRAFT RESOLUTION FOR APPROVAL PREPARED BY APPLICANT] Zoning Administrator Resolution No. ZA2024-### Page 3 of 3 2.The Project has been reviewed and conditioned to help ensure that the purpose and intent of Section 20.48.030 (Alcohol Sales) of the NBMC is maintained and that a healthy environment for residents and businesses is preserved. The off- sale of alcohol is intended for the convenience of the to- go goods that are often purchased. Operational conditions of approval recommended by the Police Department relative to the sale of alcoholic beverages will ensure compatibility with the surrounding uses and minimize alcohol-related impacts. All employees serving alcohol will be required to complete a certified training program in responsible methods and skills for selling alcoholic beverages, as required by the State of California. 3.Offering limited off-sale alcohol sales will complement and provide convenience to existing customers. The operations will not be objectionable given the proposed hours of operation, license type, and location of the use. The resolution includes conditions of approval to limit objectionable conditions related to the operation of the establishment. vi.The use is consistent with the General Plan and any applicable specific plan; 1.The General Plan designates the site as Mixed-Use Water 2 (MU-W2) which applies to areas where it is the intent to establish waterfront locations in which marine-related uses are intermixed with commercial service use and residential. 2.The proposed alcohol services are consistent with the MU-W2 designation as it is intended to serve nearby residents, the surrounding community, and visitors to the City of Newport Beach. 3.Several mixed-use structures including visitor serving commercial such as eating and drinking establishments with alcohol service uses exist nearby and are complementary to the surrounding commercial and residential uses. 4.The subject property is not part of a specific plan area. vii.The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code; 1.The property is designated by the Zoning Code as Mixed-Use Water (MU-W2), which applies to areas where it is the intent for waterfront properties in which marine- related uses may be intermixed with general commercial, visitor-serving commercial and residential dwelling units on the upper floors. The proposed addition of alcohol of sales to the existing establishment requires a minor use permit pursuant to Newport Beach Municipal Code Section 20.22.020 (Mixed- Use Zoning Districts Land Uses and Permit Requirements). The property is located approximately 270 feet from a residential zoning district. 2.The existing establishment as a by-right use and is not conditioned by the City. While the establishment, is governed by general laws and regulations, there is no existing CUP or resolution that otherwise conditions the current use and/or operations. With the approval herein, the subject site will be significantly Zoning Administrator - May 30, 2024 Item No. 2a - Additional Materials Received After Deadline Tanar's Tobacco Minor Use Permit (PA2023-0032) [DRAFT RESOLUTION FOR APPROVAL PREPARED BY APPLICANT] Zoning Administrator Resolution No. ZA2024-### Page 3 of 3 conditioned, to include limiting hours of operation. (9:00 a.m. to 9:00 p.m., daily) to insure compatible and compliance with the surrounding while providing public convenience and necessity to nearby residents, visitors, employees and the general public. 3.As conditioned, the proposed project will comply with Zoning Code standards for eating and drinking establishments. viii.The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity; 1.The existing establishment consists of approximately 800 square feet. No physical change, alterations or excision of the premises is proposed. 2.The hours of operation will be restricted to the hours between 9:00 a.m. and 9:00 p.m., daily. These hours are far less than the surrounding businesses in the commercial area. 3.The subject property is located in a relatively dense commercial area with multiple uses within a short distance of each other. McFadden Square is conducive to a significant number of walk-in patrons. On-site parking is available for the subject property with adequate parking. In addition, there is public parking provided in the immediate area. 4.The surrounding area contains various, retail and visitor serving commercial uses including restaurants with alcohol service. Adding the limited off sale alcohol service to the existing establishment is compatible with the existing and permitted uses within the area. 5.The operational conditions of approval relative to the sale of alcoholic beverages will help ensure compatibility with the surrounding uses and minimize alcohol-related impacts. The project has been conditioned to ensure that the business remains a restaurant and does not become a bar or tavern. Additionally, dancing, or live entertainment is not permitted. 6.The existing common trash storage area located approximately 150 feet to the west is adequate to accommodate the proposed food service use and is conveniently located where materials can be deposited and collected, and does not impede parking. 7.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; and 8.The existing establishment provides adequate public and emergency vehicle access, public services, and utilities. 9.The site is accessible from public right of ways and streets. Zoning Administrator - May 30, 2024 Item No. 2a - Additional Materials Received After Deadline Tanar's Tobacco Minor Use Permit (PA2023-0032) [DRAFT RESOLUTION FOR APPROVAL PREPARED BY APPLICANT] Zoning Administrator Resolution No. ZA2024-### Page 3 of 3 ix.Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, and safety, or general welfare of persons residing or working in the neighborhood of the proposed use. 1. The project has been reviewed and includes conditions of approval to ensure that potential conflicts with the surrounding land uses are minimized to the greatest extent possible. The limited hours reduce impacts to surrounding land uses and sufficient parking is available for the existing establishment. 2.The establishment serves the surrounding community in a commercial area designed for such uses. The additional service of alcohol is provided as a public convenience and is not uncommon in establishments of this type. Additionally, the service of alcohol will provide an economic opportunity for the applicant/operator/property owner to maintain a successful business that is compatible with the surrounding community. 3.All owners, managers, and employees selling or serving alcohol will be required to complete a Responsible Beverage Service Certification Program. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1.The Zoning Administrator of the City of Newport Beach hereby finds this project is categorically exempt from the California Environmental Quality Act pursuant to Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. 2.The Zoning Administrator of the City of Newport Beach hereby approves Minor Use Permit No.2023-0032 subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. 3.This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal or call for review is filed with the Community Development Director in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED, AND ADOPTED THIS 30th DAY OF MAY, 2024. Zoning Administrator Zoning Administrator - May 30, 2024 Item No. 2a - Additional Materials Received After Deadline Tanar's Tobacco Minor Use Permit (PA2023-0032) Zoning Administrator - May 30, 2024 Item No. 2a - Additional Materials Received After Deadline Tanar's Tobacco Minor Use Permit (PA2023-0032) Zoning Administrator - May 30, 2024 Item No. 2a - Additional Materials Received After Deadline Tanar's Tobacco Minor Use Permit (PA2023-0032) Zoning Administrator - May 30, 2024 Item No. 2a - Additional Materials Received After Deadline Tanar's Tobacco Minor Use Permit (PA2023-0032) Zoning Administrator - May 30, 2024 Item No. 2a - Additional Materials Received After Deadline Tanar's Tobacco Minor Use Permit (PA2023-0032) Zoning Administrator - May 30, 2024 Item No. 2a - Additional Materials Received After Deadline Tanar's Tobacco Minor Use Permit (PA2023-0032) Zoning Administrator - May 30, 2024 Item No. 2a - Additional Materials Received After Deadline Tanar's Tobacco Minor Use Permit (PA2023-0032) Zoning Administrator - 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