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HomeMy WebLinkAbout02/04/1993qA CITY OF NEWPORT BEACH REGULAR PLANNING COMMISSION MEETING PLACE: City Council Chambers TIME: 7:30 P.M. DATE: February 4. 1993 MINUTES -]Wc ROLL CALL INDEX Present * All Commissioners were present. s s s EX- OFFICIO OFFICERS PRESENT: James Hewicker, Planning Director Robin Flory, Assistant City Attorney William R. Laycock, Current Planning Manager Don Webb, City Engineer Dee Edwards, Secretary Minutes of January 21. 1993 Minutes Motion * Motion was made and voted on to approve the January 21, 1993, of 1 /21/ All ayes Planning Commission Minutes. MOTION CARRIED. z s s Public Comments: Public No one appeared before the Planning Commission to speak on comments non - agenda items. s : : Posting of the Agenda: Posting of the James Hewicker, Planning Director, stated that the Planning Agenda Commission Agenda was posted on Friday, January 29, 1993, in front of City Hall.. * -]Wc MINUTES CITY OF NEWPORT BEACH ary 4' 1993 ROLL CALL INDEX Request for Continuances: Request for Director Hewicker stated that the applicant, John V. Black, has Continue requested that Agenda Item No. 5, Use Permit No. 3475 regarding property located at 4001 Birch Street, be continued to the Planning Commission meeting of March 4, 1993. He also requested that Discussion Item No. 1, Modification No. 3928 regarding changes to the approved landscape plan in conjunction with an approved retaining wall and glass windscreen on 12 contiguous lots located in Cameo Highlands, be continued to the Planning Commission meeting of February 18, 1993. Mr. Hewicker stated that staff has requested that Discussion Item No. 4, General Plan Amendment No. 93 -1, be removed from calendar. Commiccioner Glover stated that the public has expressed concerns to her about the appearance of the Cameo Highlands 10 wall, and she emphasized that it was imperative that the project be completed as soon as possible. Motion All Ayes * Motion was made and voted on to continue Item No. 5 to March 4, 1993; to continue Discussion Item No. 1 to February 18, 1993; and to remove Discussion Item No. 4 from calendar. MOTION CARRIED. Exception Permit No. 44 (Discussion) item No.. Request to permit the construction of a 3 foot 6 inch high, 56 sq.ft. EP No.44 off -site ground identification sign for Calty Design, on property owned by Mariner's Church, in Area 1 of the North Ford /San Approved Diego Creek Planned Community. The proposed sign will be located at the entrance of an access drive which the Mariner's Church shares with Calty Design. LOCATION: Parcel 2 of Parcel Map 41 -27, (Resubdivision No. 328), located at 1000 Bison Avenue, on the northeasterly side of Bison Avenue, between MacArthur Boulevard and Jamboree -2 COMMISSIONERS MINUTES CITY OF NEWPORT BEA "ary 4, 1993 ROLL CALL INDEX Road, in the North Ford /San Diego Creek Planned Community. ZONE: P -C APPLICANT: Czysz Construction, Inc., Ontario OWNER: Mariner's Church, Newport Beach Mr. Mark Yamauchi, Toyota Motor Sales USA, 19001 Southwestern Avenue, Torrance, appeared before the Planning Commission to express support of the subject application. He stated that the sign would identify Calty Design off of Bison Avenue. Mr. Kelly O'Gorman appeared before the Planning Commission on behalf of the applicant, and he concurred with the findings and 10 conditions in Exhibit "A ". Motion * Motion was made and voted on to approve Exception Permit No. All Ayes 44 subject to the findings and conditions in Exhibit "A ". MOTION CARRIED. FINDINGS: 1. That the proposed sign will be compatible with surrounding land uses. 2. That the proposed sign will not have any significant environmental impact. 3. That the proposed signage and graphics are consistent with the character and design of the subject property. 4. That the design of the proposed improvements will not conflict with any easements acquired by the public at large for access through or use of property within the proposed development. -3- COMMSSIONERS Q NR%%\0 fo MINUTES CITY OF NEWPORT BEA6*`tary 4,1993 ROLL CALL INDEX 5. That public improvements may be required of a developer per Section 20.06.090 of the Municipal Code. 6. That the granting of this exception permit will not be contrary to the purpose of Chapter 20.06 of the Municipal Code, or the North Ford Planned Community Development Standards, and will not be materially detrimental to the health, safety, comfort or general welfare of persons residing in the neighborhood, or detrimental or injurious to property or improvements in the neighborhood, or to the general welfare of the City. CONDITIONS: 1. That development shall be in substantial conformance with the approved plot plan and elevations, except as noted below. 2. That the applicant shall obtain a building permit for the proposed sign prior to installation. 3. That the light source shall be shielded from the view of neighboring residential properties to prevent glare and light spillage to neighboring properties. 4. That all improvements be constructed as required by Ordinance and the Public Works DepartmenL 5. That the proposed sign be placed at the intersection of the private drive and Bison Avenue so that it conforms to the City's Sight Distance Standard 110-L and that the existing tree branches be trimmed back to provide sight distance in conformance with City sight distance standards. Slopes, landscape, walls and other obstructions shall be considered in the sight distance requirements. Landscaping within the sight line shall not exceed twenty-four inches in height. s s a -4- COMMISSIONERS 40 QQ4 I�o MINUTES CITY OF NEWPORT BEA8 ary 4, 1993 .2 ROLL CALL INDEX Use Permit No 3476 (Continued Public Hog& -g) item No Request to permit the continued operation of an existing UP3476 independent massage establishment on property located in the M- 1 -A District. The proposal also includes a request to waive the Denied location requirement which requires that independent massage establishments be at least 500 feet from another independent massage establishment. LOCATION: Lot 4, Tract No. 5169, located at 4301 Birch Street, on the northwesterly side of Birch Street, between Dove Street and MacArthur Boulevard, across from the Newport Place Planned Community. ZONE: M -1 -A . APPLICANT: Candice H. Nguyen, Newport Beach OWNER: Donald Lewis, Newport Beach Robin Flory, Assistant City Attorney, requested that page 4 of the , staff report, Title 5 Compliance, No. 1, be corrected so that twice would be deleted from the second sentence. Exhibit "B ", Finding No. 3, shall be corrected to state The arrests, which occurred in 1991, resulted in a conviction of 2 counts of prostitution by one employee, 2 counts of PC 647 (g) ..... The public hearing was opened in connection with this item, and Mr. George Grove, attorney for the applicant, 7095 Hollywood Boulevard, Suite 773, Hollywood, 90028, appeared before the Planning Commission. Mr. Grove presented a copy of Constitutional Challenges to Chapter 20.68 of the Municipal Code and to Ordinance No. 92 -5, Statement of Specifications (Without Limitation) to Ms. Flory for the record so as to preserve the applicant's rights. Mr. Grove addressed Chapter 20.68, and Ordinance No. 92 -5, wherein be stated that it would appear that the City of Newport -5- .2 MINUTES CITY OF NEWPORT BEA46firnary" 1993 ROLL CALL WDEX Beach is attempting to enact a retroactive type of Ordinance, i.e.: to take a particular type of business and not specify whether the Ordinance is going to be applicable only to new businesses, or going to apply to existing businesses with respect to the intent of the Commission or the City adopting the Ordinance. Those types of Ordinances have constitutional problems: i.e. problems relating to people who come in to open a business and request a permit or a license from the City which is granted, and the parties spend money, time and effort to develop the business, and then the City enacts the Ordinance referred to as Chapter 20.68 given to the amortization period, which in affect puts the individual out of business within one year after the permit is granted, if, in fact, the permit is granted, and it may not be granted. He questioned the propriety of the limits of discretion the Commission may have or not have in denying or approving the application wherein he indicated that his concerns are referred to in the Constitutional Challenges. Mr. Grove addressed his concerns in the nature of estoppel. Mr. Grove explained there is a problem when an applicant seeks a use permit and the staff prepares a report relating to incidents that occurred prior to the time the applicant became a licensed operator of the business, i.e.: it appears that there is an attempt to impose strict liability upon an applicant to prior acts. The second problem is that the City attempts to impose a liability absolute upon an applicant not to hire a person who is permitted to work. Mr. Grove referred to the supplemental staff report wherein it addresses individuals who have been charged with prostitution or who have been found convicted of prostitution that are now working at the subject location, and the supplemental staff report from the Business License Office indicates that the individual is permitted to work. He questioned why the City, when an applicant comes in after the date of enactment of Ordinance No. 92 -5 and applies for a license to operate a mdssage establishment, and grants the license to the individual with the full knowledge of all of the things that are being addressed. The same knowledge that is before the Commission was before the City in July 1992, when the application was made by the applicant to operate the business. He determined that the City based upon the Ordinance the way it -6- - 10 MINUTES CITY OF NEWPORT BEACH ary " 1993 ROLL CALL INDEX is framed and based upon the related sections of the entire Code, could have denied the application for a license; however, had the Qty done that it would have been a constitutional problem He suggested that the City may not properly consider prior incidents that occurred before the applicant made an application for license. to operate the business, where the applicant was not involved at the time of the incident or had no knowledge of the incident, or does not acquiescence the incident or does not condone the incident. If the incidents occurred prior to the application being made, it is his opinion that the Commission is estopped from considering those incidents. If the incidents are considered, then why place absolute liability on any applicant on anything that happened prior to the time of the application. Mr. Grove noted that in Exhibit 'B ", Findings for Denial, No. 8, that a sentence reads Documentation concerning prior operations of the business is available to new applicants wherein he indicated that the sentence is in contrast to what he heard during the January 21, 1993, Planning Commission public hearing. At that meeting he heard that the City provides by notice to the applicant what happened before, and he asked during that public hearing, is that procedure in place, and there was no answer to the question because it was not known at that time. Subsequently, one of his legal assistants contacted the City and was not informed of the answer at that time wherein he determined that he does not believe there was such a procedure in place. He suggested that the Commission is estopped from considering the prior incidents as to what happened at the location before the applicant is not a party to the incident. Secondly, he suggested that there is a serious problem with employees. If the City permits an employee to work at a location, the employee is permitted to work, and the only way to stop an employee from working is to revoke the permit. The supplemental staff report indicates that the technicians are still being permitted to work, and if they are permitted to work, what is the complaint. Is the City suggesting that the operator of a business may not hire somebody who is convicted before, if so, he thought that the City may not properly suggest that, and if the City does not want an individual to work, then revoke the permit, and then the individual will not work. If -7- COMNIISSIONER8 MINUTES CITY OF NEWPORT BEAWary" "' ROLL CALL INDEX the permit is revoked, the party has to be given proper notice, and have a hearing if the party requests a hearing, and then proceed with procedures for such a revocation proceeding. The second challenge with respect to the right to consider the prior incidents, is that an employee who is working at the location when the City. knows the employee is working at the location, should take steps to revoke the license if they don't want the person working at the location wherein he indicated that he does not see that as happening inasmuch as he does not see the evidence and if there is evidence, he asked that the evidence be submitted to the Commission so all of the parties can determine what it is about. The second problem with an employee is that if an employee is permitted to work, the City cannot tell an employee where an employee can work or not work. The only thing to do is revoke the permit. If an employee chooses to work at one location or another location, the employee should be able to do that, and if the owner chooses to hire the employee, that does not mean absolutely that the employee is going to commit another act of prostitution; as a matter of fact, there is nothing in the record to indicate that the employees, if they are working, have been arrested again for prostitution. He asked if simply because an individual has been arrested for prostitution that they are forbidden to work forever, and if that is the suggestion, he determined that it is wrong. Mr. Grove stated that prior incident reports are objectionable based upon heresay wherein he indicated that in administrative proceedings heresay is admissible; however, he preserved for the record that objection because obviously it is going to have some affect on what may or may not occur later. It would appear based upon what he has seen during previous public hearings that what the City attempts to do is to use this type of Ordinance for the purpose of abating what the City considers to be a nuisance. He said that the City cannot do that inasmuch as it is clear that the doctrine of statutory preemption precludes the City from doing that. If that is the purpose, that is wrong. There are very comprehensive statutes that address abating nuisances, and if the City believes that the location is a nuisance there are actions that -8- MINUTES CITY OF NEWPORT BEAt*"ary" "' ROLL CALL INDEX can be taken to abate those nuisances, and the City has not done that for one reason or another. Mr. Grove referred to the acts that occurred in 1991, and if the City is so concerned about the acts, why didn't the City do. something in 1991. He has a concern about what the motives may be in doing what is being done. Finally, the applicant did not acquiesce or condone any of the alleged prior incidents, the applicant did not have any knowledge about the prior incidents at the time of occurrence of the prior incidents, the applicant was not present at the time of the prior incidents, and there are no incidents reported in the subject report of law violations since the applicant has taken over the business operation. Further, if the Commission denies the applicant the subject use permit, then a very severe and substantial economic hardship will be imposed upon the applicant, inasmuch as the applicant has been in business since July, 1992, and there has been substantial time and money and effort put into the business, and now to say that the applicant cannot operate any more because a use permit has been denied when the party attempts, in good faith, to comply with the City's Ordinances, is a travesty. For whatever reason the Commission chooses to deny the application, if denied, then Mr. Grove would ask, so the record can be complete, to do better than what the findings for denial are that are proposed by the staff. He said that the findings are not sufficient to do what he has to do if it is decided to deny the application. He asked the Commission to more specific on denials, and if the Commission asks if the applicant is hiring an individual that has been convicted, he wants to know about it, or is the Commission denying an application for another reason. Mr. Grove stated that he and his client are prepared to accept the staff report and the conditions attached to the approval in Exhibit "A" as they now stand subject to the non - waiver of the constitutional challenges which be asserted at other hearings and what be has asserted by written documents as well as his oral statement. The challenges also go with the conditions that are attached to the use permit. He stated that the City goes beyond -9- CODEWSSIONERS MINUTES CITY OF NEWPORT BEAM"ary" 1993 ROLL CALL SEX what the discretionary powers are when the City starts to tell a person to get a special inspection from the Building Department for a change in occupancy from offices to a massage establishment use, that has already been done, and why is it necessary again; however, he stated that they would do it again as rquired in. Exhibit "A ", Condition No. 7. He suggested that the application should be granted for several reasons, i.e.: the party deserves the application be granted, secondly there is no proper evidence or substantial evidence that is properly considerable before the Commission that would be support for denial of the application. If the application would be denied a further problem would be created not only for the subject applicant but a problem would be created for the City. In response to a question posed by Chairman Edwards, Mr. Grove explained that the Commission can properly consider an applicant that has been in the business since July, 1992, and there have been no problems or arrests since that date, there have been no law violations, and the applicant has no record. He expressed a concern that the Commission is going beyond what should be looked at. Commissioner Ridgeway asked how the law applies prospectively inasmuch as Mr. Grove has indicated his concerns retrospectively, i.e. if the Commission should grant the use permit and there is a violation of law, he asked Mr. Grove if he thought the Commission could recommend the revocation of the use permit under the law. Mr. Grove stated that to address prospectively and retroactively is a critical observation. He said that he has concerns with retroactive application with respect to the Ordinance. To address prospective violations, if an applicant that Mr. Grove represented comes before the Commission in two months with a violation, the Commission has the right to challenge that applicant's right to retain the permit as the Ordinance is written. The caveat is if the underlying Ordinance is constitutionally defective, then he would be the first person to argue the fact; however, if the Ordinance that is intended to be enforced is proper, and the applicant commits a violation that permits the Commission to revoke or suspend that permit or license or application, the Commission has -10- • c�y��� �C`�'pOq'pOs'o MINUTES, CITY OF NEWPORT BEAW"ary "'993 ROLL CALL INDEX the right. The Commission does not have the right to go beyond the time the applicant took the business to consider acts that happened retroactive, the City cannot do it properly. Commissioner Gifford referred to page 4 of the staff report, Title. 5 Compliance, No. 5, that the most recent arrest and subsequent guilty plea occurred on June 11, 1992, wherein Mr. Grove indicated that the applicant purchased the business in July, 1992. In response to a question posed by Commissioner Gifford, Mr. Grove opined that when an individual applies for a business license, that the individual is requesting permission from the City to operate a particular business in a particular location; however, a use permit addresses a situation with an existing operation where the operation may not be nonconforming because of the type of Ordinance or law that the City has adopted and so the applicant comes before the Commission to apply for a use permit to operate the business as a nonconforming use during the period of time that the use permit may be good for. However, he stated that it is critical to note that how the issues are interlocked is to recognize the chronology of what the City has done during the past five years when the City began to increase regulations on massage establishments and to implement the regulations, and to put the pressure on. In response to questions posed by Commissioner Merrill, Mr. Grove explained that the subject business commenced on July 8, 1992, and that an agreement between the parties to transfer and sell the business was completed on July 8, 1992. Mr. Grove further replied that he was not aware if the applicant operated any other establishment within the City wherein he pointed out that the applicant listed on Item No. 4 on the Commission Agenda, Marie Nguyen, has a similar name of his client; however, Marie Nguyen is not a client of his. Commissioner Merrill pointed out that the City could consider the similarity of names. After confering with the applicant, Mr. Grove responded to Commissioner Merrill that the applicant has never operated a massage establishment anywhere. -11- COADUSSIONERS MINUTES CITY OF NEWPORT BEA8 ' 4, 1993 ROLL CALL INDEX Commissioner Pomeroy stated that if an operator makes a simple transfer of a business license, that transaction is a lot different than an ownership change and a large transfer of money. Buying the business and being the owner for $1.00 is no substantial investment whereby Mr. Grove had referenced a substantial. investment. Commissioner Pomeroy indicated that his concern is change in ownership, and change in operators was not an actual change in the operation of the business, but only the vehicle for continuing the business after a problem occurred in which case all of the things Mr. Grove mentioned about prejudice against a new operator would, in his opinion, not apply. Mr. Grove rebuked Commissioner Pomeroy's statements and he stated that the change in ownership involved a change in money. Commissioner Ridgeway asked if there is a common owner between the prior seller and the subject applicant. Mr. Grove responded that it was not to his knowledge, and that the purchase of the business is a business opportunity without escrow; however, there was a contract between the parties involved. In response to questions posed by Commissioner Gifford, Mr. Grove explained that the transaction was consummated within the single business day of July 8, 1992. He further concurred with Commissioner Gifford that all of the employees were not dismissed and new employees hired when the applicant took over the ownership of the business, and there was some continuation of the personnel, and that it is a correct assumption of any massage establishment within the State of California. Commissioner Gifford asked if any of the employees referred to in the staff report continued on as employees, and whether or not there were some type of business records associated with those parties as employees that remained with the business. Mr. Grove further replied that based on the supplemental staff report indicating the number of arrests, that the parties continued to work and were permitted to work after the transaction. He stated that a question that needs to be answered is who has been revoked, when were they revoked, and how were they revoked, and the information that he has the parties have not been revoked. Commissioner Gifford referred to the staff report, page 4, wherein she made the -12- 4 \1110RtR\%%%0 c°c MINUTES CITY OF NEWPORT BEA45*"a'y 4, "" ROLL CALL INDEX assumption that five different technicians were involved in violations of State Law and the Newport Beach Municipal Code. She stated that it would appear that Mr. Grove is concerned that there is an issue that the employees are permitted to work, and it should not be an issue that they have had prior convictions, and. there has been a comment that it is not predictive of whether or not there will be future violations. That comment and the way that Mr. Grove used that related to whether or not the client had knowledge of these prior incidents as related to those employees. Mr. Grove concurred wherein he explained that the applicant did not participate, did not acquiesce, did not condone, and did not have knowledge of the actions. In response to a question posed by Commissioner Gifford, Mr. Grove replied that there was no. reference in any record that was exchanged that there was a violation, and his client was not aware of any violation. The records that he has reveals that the City did not send any notification to anyone, including the applicant, relating to prior . problems at the subject location. Commissioner Gifford stated and Mr. Grove concurred that the applicant did not take over any business records or employee folders on the employees stated in the staff report that contain any notations regarding the incidents. In response to questions posed by Chairman Edwards, Mr. Grove concurred that he is representing the applicant. He further replied that the subject applicant took over the operation from Ms. Trudy Deschields, who was an operator from June, 1991, through July, 1992; that an applicant and operator are one and the same under all circumstances; the owner that he refers to is the owner of the business, and the owner of the property, Donald Lewis, was also the owner of the property at the time of the original violations; and the term owner /applicant /operator is being used interchangeably. Mr. Glen Everroad, Revenue Manager for the City, appeared before the Planning Commission. Mr. Everroad explained the distinctions between the regulatory process associated with Title 5, the revenue generating process of Title 5, and the use permit requirement. For purposes of business licensing, the City's Municipal Code requires that the City is not able to regulate -13- COMMISSIONERS MINUTES CITY OF NEWPORT BEA8ft ary 4, 1993 ROLL CALL INDEX through the business license, business activities. In theory, if an applicant or an unlawful act comes to the counter and requests to have a business license for an unlawful act, by law the City is required to issue permits for that. It does not authorize the applicant to conduct unlawful acts, and that is made clear on the. certificate that is issued for that facility. Business tax is not a regulatory function of the business license office. Some businesses, massage establishments are one, are regulated by a separate regulatory scheme in Title 5 and the City does regulate the owners of massage facilities as operators. Chapter 5.50 requires that one of the owners be an operator. It is staffs experience that often massage businesses are owned by a variety of people, and one of those people will apply for and receive a permit as an operator. Staff does a cursory criminal investigation on those individuals insuring that they do not have a criminal history that precludes them from having licensing as an operator. It has been staff's experience that those people are a dispensable item in the massage establishment business, and very often when criminal activity is conducted at a massage facility, the facility will soon have a new operator applying for a permit. All that is necessary is to produce for staff, someone that has a clean criminal history and is represented to the staff that they are in part an owner of the business. There are some distinctions between a business license and an operator's permit, and these are individuals who are actually providing massage services at the facility. The workers, or technicians, are likewise licensed in the City and staff does written examinations of these people as well as criminal investigations. A "common thread" that is found in massage operations, and what is particularly interesting of this particular applicant, is that there are people who stay with the business, technicians who are providing massage services at this business, year after year, operator after operator. In reference to the previous operator of the subject International Spa, she was a lady who started off at the facility in 1987 as a technician. She was licensed at the facility and has been an owner of the facility at one time when they needed an owner for the facility, and is currently licensed as a technician at the facility. The "common thread" are technicians. The problems are -14- WINDD MINUTES CITY OF NEWPORT BEAMPary " 1993 ROLL CALL INDEX that often technicians are often arrested for a crime, a new operator comes in place, and there is often a period of a year or greater between arrests and adjudication in that case. When staff receives information from the Police Department that. there has been criminal conduct by violation of the Municipal Code or the Penal Code, staff provides notification to the operator of the facility by certified mail and the technician that was charged with the offense. It will be quite some time before that case is adjudicated criminally. Staff will wait for some criminal adjudication of that offense before staff is able to take action in terms of revocation. Staff will provide notice of revocation and defense attorneys will request that there be a stay of administrative action until the case is adjudicated. Rather than try the case administratively at the City with a bearing officer, staff waits for the results of the criminal process and when there is a conviction, staff is able to take action in terms of revocation or suspension of the technician's permit. Notice is provided to operators of the facility. Currently at International Spa, there are five licensed technicians that were technicians under the employ of the previous operator, prior to that there are records that will reflect that five of those technicians under the employ of the previous operator, who likewise were technicians under the employ of the operator from September 1987 through June 1991. The technicians remain the common theme. The requirements for these people are considerably less. It is staff's experience that the transactions made are sometimes at the Business License counter that includes the old owner and the new owner passing the business license certificate. The significant issue is the nature of the activity that occurs and its relationship to the technicians. In response to questions posed by Commissioner Merrill regarding the actions that were taken by the City against the five technicians addressed in the staff report, Mr. Everroad replied that when staff receives information about an arrest, staff provides notice to the technician and a certified copy is sent to the operator of the facility that grounds for suspension or revocation of a permit exist. When that case is adjudicated criminally, staff 'Will follow through with the revocation or suspension of the permit based on the -15- MINUTES CITY OF NEWPORT BEA8*"ary 4, 1993 ROLL CALL INDEX conviction. It is staff's experience that often technicians are arrested for prostitution and the rase criminally is adjudicated as trespassing, malicious mischief, or something substantially less than for prostitution, and staff does not have the ability administratively at that point to revoke a permit for trespass. Staff depends at that. time on revoking a permit or taking action on a permit based on the elements of the offense, so staff has to prove up the case again before a hearing officer. He said that staff is able to provide information about specific massage technicians including those in the supplemental staff report, and the City Attorney's Office would be able to provide information whether or not the applicant has been criminally adjudicated. Commissioner Merrill addressed page 4 of the staff report, Title 5 Compliance, Item No. 1, and be requested information regarding the actions that were taken against the technician. Mr. Everroad explained that the technician was adjudicated, and her permit was . revoked following the criminal conviction for prostitution. Once a technician is convicted of prostitution they are precluded from further licensing as a technician or operator in the City. The technician listed in Item No. 3 is no longer permitted by the City to provide massage services or to operate a massage facility. In reference to the five technicians that Mr. Everroad referred to during his testimony, was an indication that there is a common thread that runs between the operators and those are the technicians. Commissioner Merrill asked if none of those five technicians have been arrested or convicted? Mr. Everroad replied that some of those technicians have been arrested or convicted, and at the time the operator came licensed as such in July, 1992, adjudication criminally of those arrested had not occurred. The technicians were under some administrative notice that action would be taken on their permits, and staff awaits criminal adjudication to continue that administrative action. In response to questions posed by Commissioner Glover, Mr. Everroad explained that staff will notify the owners as soon as staff has information from the District Attorney's Office and Police Department that there has. been a violation of law that could result in action being taken against that individual's permit. It is -16- • ��q o��Po����`1'0 MINUTES CITY OF NEWPORT BEAD' 4,1993 ROLL CALL INDEX that notification that staff may have grounds to take action_ on the permit. Once the issue is adjudicated criminally, then staff proceeds with administrative action. Typically, depending upon how the case was adjudicated criminally, applicants will appeal the grounds for denial; however, if there is information that an act of prostitution has occurred, staff will put that permittee on notice that staff intends to revoke their permit. Staff waits for the case to be tried criminally, and if the case is adjudicated as a prostitution, then staff provides notification to the individual that the administrative process of revoking the permit will continue and unless they appeal that decision, their permit is then revoked. If, however, criminally it is adjudicated something that does not constitute grounds for denial, typically something less than prostitution, the applicant will then appeal the administrative process, request a hearing, and staff may add five, six, seven months to the revocation permit process. Mr. Everroad further replied that staff sends the notification to the operator of the facility at the time the notice is printed at the business address of the operator. It is very common to have a different operator at the time the case is adjudicated, as is the situation of the subject applicant, that some of the criminal actions pending against the technicians currently in the employ of the applicant may be adjudicated now and the act actually occurred while the previous owner, who is currently a technician licensed at the facility was the operator. Commissioner Gifford addressed page 4 of the staff report, Item No. 5. She asked it and Mr. Everroad concurred, the technician pleaded guilty at some later date after June 11, 1992. She asked if there would have been a notice from staff to the owner of record as of the date of the guilty plea. Mr. Everroad explained that often is not something that administratively is possible. The communication between the Police Department, the District Attorney's Office, and staff is not very fast at times, and so it could be some time between the time the case is criminally adjudicated and staff is provided notification. Commissioner Gifford stated that if the guilty plea would be later than July 8, 1992, that the notification would have arrived and been sent to the person that is now the owner, if it had gone out already. Mr. Everroad replied -17- COADOSSIONERS • �q�O�t��O�`PO��O MINUTES CITY OF NEWPORT BEAftIuary 4, 1993 ROLL CALL INDEX that he does not have any information with respect to the applicant's previous employment. In response to questions posed by Commissioner Ridgeway, Mr. Everroad explained that when staff receives notification from the Police Department or the District Attorney's Office that a case has been filed, staff will provide notification to the operator of the facility and the technician subject to the criminal action. That is the only notice upon filing 647(b) for prostitution. Staff monitors the Court action for a conviction and notifies of the conviction unless the case was out of hand, dismissed by the Court, or even on cases that are not filed by the District Attorney's Office, then staff can proceed administratively. Mr. Everroad clarified a previous statement during his testimony wherein he explained that a business license is often construed as a regulatory function of the City and Municipal Code. Chapter 5.04 specifically indicates that the City cannot use a business license in a regulatory capacity, that it is solely for the purpose of generating revenue from business. A separate section of Title 5, Chapter 5.50 does provide for the regulation of massage technicians, and massage operations. The Revenue Division taxes all businesses conducted in the City, and staff regulates only a handful of those businesses. Mr. Everroad concurred that business licenses have a regulatory scheme for massage parlors and the revocation procedure. He said that staff would not revoke a business license; however, staff would revoke regulatory permits that are issued. There are several permits associated with the regulatory process: an operator has to be permitted by the City; therapists providing massage services are licensed as technicians; and the business pays a business tax for the privilege of conducting business in the City. He further explained that the operator is responsible, and staffs point in providing notification to operators of criminal acts by technicians in their employ, is to ultimately take action of that operator's permit. Action would consist of continued violations by technicians, operators are subject to revocation or action on their permit. The Municipal Code provides for suspension of an operator's permit or revoke an operator's permit; however, staffs experience has been that when information is built up about ' violations of technicians so as to take action against an operator's -18- • `��y�o�t��'Po�'oso MINUTES CITY OF NEWPORT BEA4 f ruary 4.1193 ROLL CALL INDEX permit, a new operator is in place. Staff has never been able to take action against an operator's permit because they have never lasted long enough. Staff is aware in the permitting process of "common threads ", that some technicians are working in the same places frequently, so that technicians employed at one facility may be employed at two other facilities, and very often technicians start off as technicians, become operators, and evolve back into technicians at that facility. In response to questions posed by Chairman Edwards, Mr. Everroad stated that staff receives notice of an arrest. In reference to aforementioned Title 5 Compliance, Item No. 5, Mr. Everroad stated that he did not have documents with him stating when staff received notice of the June 11, 1992, arrest or the date of subsequent action by staff, and he did not have the document with him advising the establishment of the arrest. Ms. Flory responded to Chairman Edwards that a plea of the June 11, 1992, arrest was entered on September 11, 1992. Mr. Everroad further replied that there is no provision in Chapter 5.50 to notify anyone other than the technician and owner, and the City does not provide notification to the owner of the property. Ms. Flory stated that she has written to the owner about problems at the business. Commissioner Gifford asked what type of business entity the subject International Spa is, wherein Mr. Everroad replied that International Spa is currently a sole ownership and it is a fictitious name for Ms. Nguyen. In response to questions posed by Commissioner Merrill with respect to businesses that need to be regulated that do not require a use permit, Mr. Everroad replied a pawn broker shop, a taxi cab business, and a tow truck business are such operations. Mr. Everroad explained that Title 5 regulatory scheme provides for an administrative hearing to revoke a permit for the foregoing uses. The City Council ultimately decides the fate of any appeals that are filed. Mr. Evenoad explained that the Revenue Division collects business tax from massage establishments, and a regulatory permit is issued to an individual that represents themselves in the business license as an owner of the business. Commissioner -19- 4 \41W0NWR*\\() MINUTES CITY OF NEWPORT BEAbftuary 4, 1993 ROLL CALL INDEX Merrill concluded that massage establishments need a place to operate and that requires a use permit, and if the Commission should approve the use permit it would preclude the Revenue Division from pursuing revocation of the regulatory permit. Chairman Edwards commented that use permits come before the Commission for revocation. Mr. Everroad stated that the Revenue Division license 43 massage establishment facilities in the City providing five services. Very frequently perspective owners of these facilities will communicate with staff about any pending action and any history as it relates to administrative action against the facility. Staff keeps records and provides information very readily to those requesting information about criminal history associated with any business that the City regulates. Staff does not, as a condition of application for an operator's permit, provide any notice of any historical action or pending action, regarding technicians that may or may not he in the employ of the operator /applicant. In response to a request by Commissioner Pomeroy, Mr. Doug Thomas, Sergeant with the Newport Beach Police Department, appeared before the Planning Commission. Commissioner Pomeroy asked how frequently do change in operator licenses occur, and what causes those changes. Sgt. Thomas replied that changes occur very frequently and typically the cause is after enforcement action. There being no others desiring to appear and be heard, the public hearing was closed at this time. Ms. Flory referred to the supplemental staff report whereby she stated that the technician that pled guilty to Penal Code 415(2) (Disturbing the Peace) is still permitted to work at the establishment; however, she has not been given notice of revocation, or since the technician pled to 415(2),, there probably will be suspension because the City Attorney cannot revoke the permit. It is an administrative provision that has not been completed, or had a chance to start. The technician that pled guilty to two counts of Penal Code 647(g)(Loitering or prowling on -20- • ���o�t�P'PO�'POS�o MINUTES CITY OF NEWPORT BEA4EIVuary 4, 1993 ROLL CALL INDEX private property of another) is permitted to work at the establishment, and has agreed to a 30 day suspension. In response to a question posed by Commissioner DiSano regarding Mr. Grove's testimony with respect to Exhibit 'B ", Findings for Denial, Ms. Flory explained that one of the issues that Mr. Grove raised was the purpose of the use permit process. The City Attorney's Office feels good about the process inasmuch as there was an extensive hearing process before the Planning Commission and the City Council, and the purposes and reasons for the enaction of the use permit process was for planning purposes, specifically to put location restrictions on massage establishments. The purposes are well established in the record and Mr. Grove will have the opportunity to review the record. She said that it was not for retroactive application, use permit procedures are required for specific businesses. Mr. Grove has . asserted that his client had no knowledge of past conviction on the property; however, the information that was provided to the Commission to show that they may not have actual knowledge but there is plenty of constructive knowledge and information, and it is the Commission's decision on whether or not that information that they have is enough to support the findings that have been provided. The fact that all of the incidents that occurred prior to the time the applicant took over the business is true. It is up to the Commission to make a determination of those prior acts, incidents, and notice to the current operator. The fact that technicians that were permitted at the time are still currently working there, and as to whether or not there is a determination by the Commission that it is continuing to operate as a front for prostitution, that is one of the basis for the finding for denial that the Commission has to make. The Commission can consider the evidence of the existing operation and who the employees are, and who the prior operators were, and the way the business has conducted itself in the past as a consideration as to its current operation. It is the Commission's decision to make as to whether there is substantial evidence to support the findings for denial that they need to make. Commissioner Pomeroy stated that the City's position is very clear. During the time that the Commission initially considered the -21- • ��fo� `�P'PO�o�y�o MINUTES CITY OF NEWPORT BEAD °an' a, 1993 ROLL CALL INDEX Massage Establishment Ordinance, the Police Department had reported that there were a large number of new massage establishments that came to the City as a result of some surrounding cities taking action that made it difficult for them to operate there and they were concerned that a large number of those, and in fact, the figures that they gave us were more than a majority, were fronts for prostitution. The evidence that has been contained in the staff report and brought to the Commission is substantially correct. The City is concerned about that and wants to do something about it. It is a very straight forward motive. Motion was made to deny Use Permit No. 3476 subject to the motion Findings for Denial in Exhibit "B ", based on the testimony during the public hearing and the City's community standards, including amended Finding No. 3 as previously stated by Ms. Flory. Commissioner Ridgeway stated that if the Commission approved the use permit and then there was a violation or an act of prostitution committed on the premises, what action does the City take or what would have to be done to revoke the use permit? Ms. Flory explained that the use permit would be brought back to the Commission to consider revocation of the use permit. Commissioner Ridgeway asked if one violation of prostitution would be grounds for revocation? Ms. Flory replied that it is a difficult question, and the case of just one conviction at one business location only, probably not. The Commission would have a staff report and all of the information on how the business operated before. The Commission could not base the revocation solely on the information that the Commission has, so to revoke a use permit based on that information later when the Commission did not do it now, would be difficult. The Commission could take that into consideration with regard to a subsequent conviction. The revocation would have to be based on the whole record. It would be a consideration that the Commission would make inasmuch as there is an operator that was on notice because she applied for the use permit, and all of the information is in the staff report. The only situation that may arise is that there may be a new operator coming before the Commission the next time. Commissioner Ridgeway asked if there would be a use permit that -22- • A`Gy�O�t�'PO`O��O MINUTES CITY OF NEWPORT BEAT' 4, 1993 ROLL CALL INDEX has been approved, is in place, and there is notification to that current operator, and that operator now has a non - saleable business because the use permit is in jeopardy, would that be a correct statement? Ms. Flory answered to the affirmative because in the use permit process they would be on notice of the fact that there is a conviction. Commissioner Ridgeway stated that he is trying to focus on the operator's inability to trade and now the operator has created an economic hardship by not taking responsibility over the technician. Ms. Flory responded that she could not predict what would happen in that case. Commissioner Ridgeway stated that the Commission has to approve the use permit as opposed to denying the application. It is a very difficult decision but Mr. Grove's comments were persuasive to some degree, and there is no doubt that some massage operations are clearly fronts for prostitution. The question is, how can the City get regulatory control over them. Denial of the application creates a case inasmuch as the subject International Spa is going to stay in operation for a couple of years. By granting the use permit, the operation is being put on notice and they now have to take responsibility and they create an economic hardship for themselves if they allow any act for prostitution. If the intent of the regulation is to control the massage parlors, then the Commission would be better off to approve this application. The economic hardship is great, it is great on the landowner at that point in time because he has the lease and he will violate that tenant and they will have a cause of action between each other for loss of revenue for loss of rent. The City should consider strongly if there is one conviction after a use permit that has been granted that is grounds for revocation of a use permit, and the City takes away the economic viability. Ms. Flory responded that a use permit may be denied under the general health, safety, and welfare provisions. The other issue is to consider the location restrictions. The purpose for requiring use permits for massage establishments was for land use planning to impose land use restrictions on the location of the establishments so they did not all congregate in one area, and to keep them spread within certain specified areas, and it was not to regulate -23- COBOMSSIONERS MINUTES CITY OF NEWPORT BEA ary 4,1993 ROLL CALL INDEX them from a regulatory point of view, it was to provide for land use planning and to prevent urban bligbt, deterioration of the community, the loss of business, etc. Most of the information that the Commission has been given is for the basis of determining whether or not to waive the location requirements in addition to determining whether or not a use permit for this facility should be approved in the interest of general health, safety and welfare. The Ordinance was not enacted for the purpose of regulation, the regulation was done under Chapter 5.50, and the Ordinance was done for land use planning to eliminate the congregation of these in so many places. The subject business has four other massage establishments in the surrounding area so the decision on many of the findings for denial are that the Commission does not want to waive the location restriction because of the operation of the business. Commissioner Gifford stated that she would support the motion. She is concerned that there are records of all the licensing requirements for both the operator and technician and that apparently one can take over a business and remain in willful ignorance by failing to inquire about the records that are available with the City, and then claim the benefit of that ignorance. Commissioner Merrill supported the motion and he concurred with Commissioner Gifford's statements. He addressed numerous applicants who have previously come before the Planning Commission to express astonishment that their establishments violated requirements of previously approved use permits that were applied for by a former applicant and he concluded that those excuses are not good enough reasons. The Commission should consider the use permit and the waiver of the distance between the massage establishments. In response to a question posed by Commissioner DiSano with respect to how long the massage establishment would be in business if the application would be denied, Ms. Flory replied that the applicant has an opportunity to appeal the action to the City Council and a final determination is made after that hearing if the Council would uphold the denial of the Commission. The -24- COM MSSIONERS ITiii►�l�ll11y.9 CITY OF NEWPORT BEA49*uary 4, 1993 ROLL CALL INDEX applicant could then bring an appeal in the form of Writ of Mandate to the Superior Court where the Court would review the process and make a determination on whether or not to uphold the decision. At that point in time, if the Court upheld the position, then the establishment would be required to go out of business. Commissioner Ridgeway pointed out that Mr. Grove made it clear that he would challenge the constitutionality of the Ordinance. The City is looking at two years to work the issue through the Court system and International Spa would be in business for an additional two years. If the use permit would be granted and put economics in the business opportunity, the business would disappear in six months. Ayes * The motion to deny Use Permit No. 3476 subject to the Findings . for Denial in Exhibit 'B" was voted on. MOTION CARRIED. FINDINGS FOR DENIAL: 1. On at least 4 occasions during 1991 when a police officer entered the business in an undercover capacity, officers were solicited for prostitution. 2. On September 13, 1991, Officers conducted a search warrant and found paraphernalia such as condoms, K -Y Jelly, and sexually explicit magazines, and on the same day, an Officer arrested a massage technician for solicitation for prostitution. 3. The arrests, which occurred in 1991, resulted in a conviction of 2 counts of prostitution by one employee, 2 counts of PC 647 (g) by one employee, one count PC 415 (2) by one employee, and one resulted in revocation of permit. 4. Nine months subsequent to the service of the warrant on June 11, 1992, another undercover operation resulted in arrest for solicitation of prostitution. -25- *1 10- 0011:011t%\o MINUTES CITY OF NEWPORT BEA uar 4'1993 ROLL CALL WDEX 5. The acts of prostitution are a violation of law and indicate International Spa operated as a front for prostitution on and before September, 1991. b. A change in operators did not stop the acts of prostitution from occurring. 7. Other customers of the business have indicated to Police Officers that prostitution and other sexual acts not related to the performance of a massage occur at the business on a regular basis. 8. The current operators are on notice of events occurring at the business; at least 3 current employees at the business were also permitted to work at the business in 1991 prior to the change in operators. One of the technicians currently permitted was the prior operator of the business from June, 1991, through July, 1992. Documentation concerning prior operations of the business is available to new applicants. 9. There are four other independent massage establishments located with 500 feet of the subject facility, one of which is located within the same building. 10. The continued operation of the existing massage establishment will be contrary to the public interest and injurious to nearby properties inasmuch as acts of prostitution have occurred at the location and requirements for massage establishments have not bee observed. 11. The continued operation of the existing massage establishment will encourage the development of an urban -blight area in that the operation represents criminal enforcement problems and has operated as a front for prostitution. -26- S " Q 1 ��o MINUTES CITY OF NEWPORT BEA °ar 4""' .3 ROLL CALL INDEX 12. That the continued operation of the existing massage establishment will interfere with efforts to promote continued urban renewal inasmuch as the operation has allowed and promoted acts of prostitution in violation of State Law and the NBMC 5.50. 13. That a massage establishment which operates as a front for prostitution at this location is detrimental to the health, safety, peace, comfort and general welfare of the community. The Planning Commission recessed at 9:05 p.m. and reconvened at 9:15 p.m. Use Permit No. 3478 (Continued Public Hearing) Item No Request to permit the continued operation of an existing UP3478 independent massage establishment on property located in the M- 1-A District. The proposal also includes a request to waive the Denies location requirement which requires that independent massage establishments be at least 500 feet from another independent massage establishment. LOCATION: Lot 24, Tract No. 3201, located at 4272 Campus Drive, on the southeasterly side of Campus Drive between Dove Street and MacArthur Boulevard, across from the John Wayne Airport. ZONE: 'M -1-A APPLICANT: Myong Cha Drake, Newport Beach OWNER: Donald R. Lawrenz, Newport Beach -27- .3 A COMMISSIONERS � clor�d Cdr\ � MINUTES CITY OF NEWPORT BEAe`Y'lary 4, 1993 ROLL CALL INDEX The public hearing was opened in connection with this item, and Mr. George Grove, attorney for the applicant, 7095 Hollywood Boulevard, Suite 773, Hollywood 90028, appeared before the Planning Commission. Mr. Grove addressed the oral comments that he raised during the public hearing for Use Permit No. 3476, Item No. 2, and the document that he submitted to Robin Flory, Assistant City Attorney, Constitutional Challenges to Chapter 20.68 and to Ordinance No. 92 -5, Statement of Specifications (Without 'I imitation) and he requested that the foregoing considerations be incorporated into the subject application by reference and be a part of the public record. Mr. Grove referred to Condition No. 8, Exhibit "A ", requesting that the trash and debris be removed from the parking lot, and he indicated that the property owner's attorney has been contacted to inform the property owner to clean up the parking lot. He said that as a lessee, the applicant is not in a position to stripe the parking lot. He accepted the conditions in Exhibit "A' subject to the non - waiver of the right to challenge the Ordinance and related Ordinances and Sections, and conditions that are attached to the approval if approved by the Commission. Mr. Grove addressed testimony of Glen Everroad, Revenue Division Manager, during the public hearing for Use Permit No. 3476, Item No. 2. Mr. Grove stated that if he has discovered that he has made a misstatement that be will be the first one to come back and acknowledge that and apologize to the Commission. He previously stated that based upon the information that he has, there have been no notices to the subject applicant or the applicant listed on Use Permit No. 3476. He stated that Mr. Everroad commented that notices are being sent by certified mail indicating certified receipts, and inasmuch as no records are available during the public hearings that he would contact the Revenue Division the week of February 8, 1993, to research the business license files and the Commission would be contacted of his findings. Mr. Grove stated that the subject use permit should be granted. He said that the Commission should consider the applicant's right -28- L COMMISSIONERS MINUTES CITY OF NEWPORT BEAC*uary 4, 1993 ROLL CALL INDEX to operate a business. The applicant has not violated any law, there has been no acquiescence or prior acts by anyone else, no condonment of the acts, no knowledge of any acts; therefore, the applicant should not be held accountable for what someone else has done. Glen Everroad, Revenue Manager, appeared before the Planning Commission. In response to Mr. Grove's aforementioned comments, Mr. Everroad stated that it is staffs practice that if information is received about criminal action that notification is provided to technicians of the City's intent to take action on permits. When cases are adjudicated the City takes action when the information is received in terms of notification. He said that he is not testifying that the applicants listed on Use Permit No. 3476 and Use Permit No. 3478 have indeed received notices from the Revenue Division office; however, his office will research the notices so as to provide the information to Mr. Grove. In response to a question posed by Chairman Edwards, Mr. Everroad replied that the technicians associated with the aforementioned facilities, to the best of his knowledge, have indeed received information from the Revenue Division that action will be taken. Mr. Everroad concurred with Commissioner Glover that it has been the experience of the Revenue Division that sometimes the notices have not been accepted because there is a new owner in place by the time the certified mail reaches the facility and it will not be accepted because it is directed to the operator on record at the time. Robin Flory, Assistant City Attorney, referred to the supplemental staff report wherein she stated that the two technicians that were convicted of Penal Code 647(b) (Prostitution) that are permitted to work, the City Attorney's Office checked the files and the records indicate that the technicians appealed, and when the conviction came down, the City was informed that the technicians no longer wish to pursue the appeal. Their attorney stated that he did not have the authority to require the technicians to return their permits. The technicians abandoned their appeal so the permits are revoked, but the permits have not been returned,, and -29- 1 MINUTES CITY OF NEWPORT BEAD °ary 4, 1993 ROLL CALL INDEX the City has not received notification per the Code that they have been terminated from employment. There being no others desiring to appear and be heard, the public hearing was closed at this time. Commissioner Pomeroy stated that Mr. Grove indicated that the major concern is that someone would be put out of business. The truth of the matter is that the transfer of ownership or the transfer of operators is simply a matter of skirting around the regulatory process. It does not put the same burden on the Commission as in the case of a restaurant where substantial capital has been placed into the business, and he does not consider that, under the circumstances of what appears to occur in a massage establishment business, where the massage establishment is a front for prostitution. The operator and the owner is a simple method of continuing to stay in business after violations have occurred • Under the circumstances, the business is not in the best interests of the health, safety peace, morals, comfort, or general welfare of Motion the community. Motion was . made and voted on to deny Use Ayes * * * * * * Permit No. 3478 subject to the Findings for Denial in Exhibit "B ". No * MOTION CARRIED. FINDINGS FOR DENIAL 1. On at least 4 occasions during 1991 when a police officer entered the business in an undercover capacity, officers were solicited for prostitution. 2. On October 10, 1991, Officers conducted a search pursuant to a warrant and found paraphernalia such as condoms, on the same day an Officer arrested a massage technician for solicitation for prostitution. 3. The arrests, which occurred in 1991, resulted in a conviction of 3 counts of prostitution by two employees, and one count PC 415 (2), by one employee. -30- I COADUSSIONERS W �o"o MINUTES CITY OF NEWPORT BEAftruary 4"99' ROLL CALL IlVDEX 4. The acts of prostitution are a violation of law and indicate Narita Spa operated as a front for prostitution on and before October, 1991. 5. A change in operators did not stop the acts of prostitution . from occurring. 6. Other customers of the business have indicated to police officers that prostitution and other sexual acts not related to the performance of a massage occur at the business on a regular basis. 7. The current operators are on notice of events occurring at the business; at least 1 current employee at the business was also permitted to work at the business in 1991 prior to the change in operators. Documentation concerning prior . operations of the business is available to new applicants. 8. There are five other independent massage establishments located with 500 feet of the subject facility. 9. The continued operation of the existing massage establishment will be contrary to the public interest and injurious to nearby properties inasmuch as acts of prostitution have occurred at the location and requirements for massage establishments have not bee observed. 10. The continued operation of the existing massage establishment will encourage the development of an urban blight area in that the operation represents criminal enforcement problems and has operated as a front for prostitution. 11. That the continued operation of the existing massage establishment will interfere with efforts to promote continued urban renewal inasmuch as the operation has allowed and promoted acts of prostitution in violation of State Law and the NBMC 5.50. -31- (/ MINUTES CITY OF NEWPORT BEAdf ruary 4, 1993 ROLL CALL MDEX 12. That a massage establishment which operates as a front for prostitution at this location is detrimental to the health, safety, peace, comfort and general welfare of the community. Extension of the One Year Amortization Period for an Existing Item No.4 Independent Massage Establishment (Discussion) Extension Request to consider a one year extension of the amortization of I Yr. period required for an existing independent massage establishment Ind.Mass. as set forth in Section 20.68.030 of the Newport Beach Municipal Est. Code. Approved LOCATION: Lot 15, Block 227, Section A, Newport Beach, located at 2817 Newport Boulevard, on the Newport Boulevard commercial island, between 28th Street and 30th Street, in the Cannery Village /McFadden Square Specific Plan area. ZONE: SP -6 APPLICANT: Marie Nguyen, Newport Beach OWNER: Same as applicant Chairman Edwards . addressed the supplemental staff report containing findings for denial marked Exhibit "B" that was distributed to the Planning Commission prior to the discussion on this matter. The discussion was opened in connection with this item, and Ms. Nicki Caldwell appeared before the Planning Commission on behalf of the applicant. Ms. Caldwell informed the Commission of the applicant's investment of $155,000. in the establishment and the real property during the past 2 -1/2 years. Ms. Caldwell concurred with the findings and conditions in Exhibit "W, and she -32- COARMSSIONERS MINUTES CITY OF NEWPORT BEA(Fft'uary 4, 1993 ROLL CALL INDEX acknowledged Condition No. 1 stating that the subject massage establishment shall be terminated on the site prior to March 25, 1994. Sgt. Doug Thomas appeared before the Planning Commission at the request of Commissioner Pomeroy. In response to questions posed by Commissioner Pomeroy, Sgt. Thomas explained that the Police Department has not reentered the facility to conduct any undercover prostitution investigation by virtue of time constraints and personnel constraints. Sgt. Thomas further replied that there are suspicions that the operation has not changed since the time of the arrests as indicated in the staff report There being no others desiring to appear and be heard, the public hearing was closed at this time. ion Commissioner Glover made a motion to approve an extension of the one year amortization period for an existing independent massage establishment according to the findings and conditions in RYhibit "A". Commissioner Gifford asked if the motion would be approved if there would be a method to regulate the business during the extended period other than revocation of individual permits. Ms. Flory replied to the affirmative. She said that the operator has been given notice that an act of prostitution occurred on the premises. The technician is no longer an employee of the facility and the City Attorney's Office has received notice that the permit was returned. If there is any further undercover activity and there is a problem, then revocation would be possible of the operator's permit. Ms. Flory indicated that if the operator sold the business to another party that the new party would be subject to the one year extension. In response to a question posed by Commissioner Gifford with respect to adding a condition that would give the Commission the ability to review the use permit to terminate the extension, Ms. Flory explained that if the Commission granted the amortization; the operator would be able to operate for an additional year subject to revocation of the operator's permit in the event of a further violation. Commissioner Gifford stated that -33- 14 I' •Vot'P�Odso MINUTES CITY OF NEWPORT BEA "ary 4, 1993 ROLL CALL INDEX she would not support the motion on the basis that if the permit would be transferred the business could remain. Chairman Edwards suggested adding a condition stating that if there were any additional vice activities discovered on the premises, that the Commission would have the right to immediately recall the item so as to review the approval of the use permit. He indicated that he would support the motion if the foregoing condition would be added, and Commissioner Gifford confirmed her approval of the added condition to the motion. Ms. Flory suggested that the foregoing suggested condition be amended to include "any violation of Chapter 5.50 or State Laud'. Chairman Edwards concurred with the recommendation. Commissioner Pomeroy expressed his concern with respect to violation of the law and getting caught violating the law whereby he referred to Sgt. Thomas' aforementioned comments that the Police Department has not been at the subject facility since the last incident occurred, and unless they begin extensive undercover activity, the added condition would accomplish absolutely nothing. . Commissioner DiSano stated that the added condition would be a vehicle should the officers have an opportunity or the suspicion to enter the establishment and it would give the City the ability to act. If the Commission would be benevolent now and attempt to provide for amortization for one year, but put with it a vehicle to do something, there is nothing wrong with that. Commissioner Pomeroy stated that the amendment is appropriate; however, it may not accomplish anything. Motion was voted on to approve an extension of the one year Ayes No * * * * * * * amortization period for an existing independent massage establishment located at 2817 Newport Boulevard. MOTION CARRIED. _34 I/ COMMISSIONERS k�004\\0 MINUTES CITY OF NEWPORT BEA4ffftruary 4, 1993 ROLL CALL INDEX Findings: 1. That the subject independent massage establishment involves a substantial financial investment in real property and improvements. 2. That the granting of a one year extension of the amortization period for the subject massage establishment is reasonably necessary in order to permit the owner of the facility to amortize or otherwise recover their long term investment in the facility. Conditions: 1. That the subject massage establishment shall be terminated on the site prior to March 25, 1994. 2. That if there are any additional violations of Chapter 5.50 or acts of prostitution on the premises, the Commission will have the right to recall the item immediately so as to review the approval of the extension. Use Permit No. 3475 ( Continued Public Hearing) item xo.5 Request to permit the continued operation of an existing UP3475 independent massage establishment on property located in the M- 1-A District. The proposal also includes a request to waive the cont d C to 3/4/93 location requirement which requires that independent massage establishments be at least 500 feet from another independent massage establishment. LOCATION: Lot 47, Tract No. 3201, located at 4001 Birch Street, on the northwesterly side of Birch Street, between Dove Street and Quail Street, across from the Newport Place Planned Community. -35- COMMSSIONERs '1&l��'PO�'Pd�o MINUTES CITY OF NEWPORT BEAG%ruary 4,1113 ROLL CALL INDEX ZONE: M -1 -A APPLICANT: John V. Black, Newport Beach OWNER: Aldo Chiappero, Reno, Nevada James Hewicker, Planning Director, stated that the applicant has requested that this application be continued to the Planning Commission meeting of March 4, 1993. Motion Motion was made and voted on to continue Item No. 5 to the All ayes Planning Commission meeting of March 4, 1993. MOTION CARRIED. sss Amendment No. 777 (Public Hearinel Item No.i Request to consider an amendment to Title 20 of the Municipal a777 Code so as to: increase the permitted 3 foot height limit for fences, walls, hedges and screen planting within the required front coat / a yard setbacks in residential districts, except in required sight to s /4/9 distance triangle areas where the permitted 3 foot height limit will be decreased; add language to Section 20.02.070 of the Municipal Code so as to require a sight distance triangle at the intersection of streets and driveways; and delete the requirement for a use permit for fences in specific locations since such fencing is currently reviewed by the Modifications Committee. INITIATED BY: The City of Newport Beach James Hewicker, Planning Director, advised that staff notified all of the Homeowner Associations in the City of the subject Amendment. Commissioner Glover asked if the 3 foot height limit would be raised to 4 feet on the Ocean Front boardwalk, and if the additional one foot would be constructed so as to be 80 percent -36- 14 CONEMSSIONERS 0"' �P%o MINUTES CITY OF NEWPORT BEA45firuary 4, 1993 ROLL CALL INDEX open. Mr. Hewicker replied that it would depend upon how the additional foot would be constructed. Don Webb, City Engineer, stated that the proposed Amendment would allow every lot in Newport Beach to build a fence 4 feet . high at back of sidewalk if that would be the front property line. At street intersections, staff has attempted to get a sight distance triangle created and in the original Ordinance where it is automatically not allowed to construct a fence above 3 feet, the front setback area ended up to be an area which it would be feasible for sight distance purposes. The 36 inch height ends up to be a very critical height area and above 36 inches it is possible that it would be above the eye level of someone sitting in an automobile. The proposed amendment addresses the sight distance at the alleys; however, the sight distance at the intersections of streets would become worse. He recommended that the amendment be continued for further review of . intersection sight distance. In response to a question posed by Commissioner Glover, William Laycock, Current Planning Manager, explained that the applicable areas in the City would be the portions of the City that are zoned R -1 and R -2, and not the Planned Community Districts. Commissioner Merrill addressed the Planned Community Districts. He stated that 4 foot high walls in front yard setbacks would be too high. The Harbor View Hills Planned Community text states that it is not possible to exceed 3 feet within 6 feet of the front property line. Commissioner Ridgeway stated that the concern appears to be a nonconformance in Corona del Mar, and he suggested to redraft the proposed amendment where there is a substantial change in the neighborhood and then allow consideration for a 4 foot high fence so as to avoid continued violation. He suggested to define the areas that are in significant violation. Robin Flory, Assistant City Attorney, explained that the purpose 10 of the amendment is that there are properties that have patios, etc. -37� r MINUTES CITY OF NEWPORT BEAuary 4,1113 ROLL CALL INDEX in violation and due to the topography of Corona del Mar, it is an issue to be considered. On the boardwalk there are properties that have been extended from 3 feet to 4 feet, and there may have been legitimate reasons to do so. She said that it may not be necessary to expand the height limit throughout the City. The result of a change would be less enforcement and would bring more nonconforming fences into conformance. The request is if the Commission believes that there is a valid reason to allow a change in certain areas of the City because of something unique about the characteristics of the area. Commissioner Gifford stated that it would be appropriate that fencing or walls be open above 3 feet rather than 4 feet. In the case of an allowable 5 foot high fence with a 2 foot setback, could 6 foot high landscaping be permitted within the 2 foot setback? Mr. Hewicker replied to the negative. She asked if landscaping has to be kept below 30 inches if it would be a tree trunk that was J of a fairly small dimension with no foliage between 30 inches and some specified height that allowed for a sight line above the foliage and below the foliage. Mr. Webb responded that in reviewing separate landscape plans, staff has taken that into consideration; however, it is necessary to consider how large the tree is going to grow. Landscape plans have to be looked at on an individual basis because it depends on how the trees are planted. Commissioner Glover expressed concern that the amendment considers all properties within the R -1 and R -2 Districts. Commissioner Pomeroy stated that the two primary areas of concern are Old Corona del Mar where there may be a topographical problem, and Balboa Island where construction has to be above 627 mean sea level. Mr. Hewicker stated that his concern would be that with different development standards would be allowed for different areas of the City; therefore, there could be future problems in plan check. In response to a question posed by Commissioner DiSano with respect to the 627 mean sea level, Mr. Webb explained that most of the areas of the Balboa Peninsula, particularly along the Ocean -38- 14 MINUTES CITY OF NEWPORT BEA45*uary 4""' .7 ROLL CALL INDEX Front sidewalk, is above the 6.27 mean sea level, but it is along the bay front where there are problems. Commissioner Glover stated that there is no reason to change the requirements unless it addresses the topography, natural grade, or along the Ocean Front boardwalk as opposed to allowing all of the R -1 and R -2 properties in the City. Motion Motion was made and voted on to continue Amendment No. 777 All Ayes to the March 4, 1993, Planning Commission meeting. MOTION CARRIED. Amendment No. 778 (Public Hearing) Item No Request to consider an amendment to Title of the Newport A778 Beach Municipal Code so as to clarify language in Chapter 2033 (87325) and Table 20.33, differentiating between massage establishments Approve as an independent use and massage establishments as an accessory use, consistent with Chapter 20.68; and an amendment to Chapter 20.68 to permit massage establishments as an independent use in the APF District, subject to the securing of a use permit. This amendment also includes housekeeping changes to correct section references in Chapter 20.33 and to establish more specific location requirements for independent massage establishments. INITIATED BY: The City of Newport Beach The public hearing was opened in connection with this item. There being no one to appear and be heard, the public hearing was closed at this time. Motion Motion was made and voted on to recommend Amendment No. All Ayes 778 (Resolution No. 1325) to the City Council. MOTION CARRIED. ss: -39- .7 *4 'P1U1\01NANM%\%0 MINUTES CITY OF NEWPORT BEA'ary 4"993 /93 ROLL CALL INDEX Discussion Items: D-1 Modification No. 3928 Mod 392E Request to review proposed changes to the approved landscape coast / a to z/18 plan in conjunction with an approved retaining wall and glass windscreen, on 12 contiguous lots located in Cameo Highlands. LOCATION: Lots 2 through 13, Tract No. 3519, located at 4709 -4839 Cortland Drive, on the southerly side of Cortland Drive, easterly of Cameo Highlands Drive, in Cameo Highlands. ZONE: R -1 -13 APPLICANT: Cortland Noisewall Trust, Corona del Mar OWNERS: Various propertyowners in Cameo Highlands James Hewicker, Planning Director, stated that the applicant has requested that this item be continued to the Planning Commission meeting of February 18, 1993, pending additional review of the approved and amended landscape plans by the affected property owners. Motion * Motion was made and voted on to continue Discussion Item No. All Ayes 1 to the February 18, 1993, Planning Commission meeting. MOTION CARRIED. -40- /93 MINUTES CITY OF NEWPORT BEA6* iary 1. 1993 ROLL CALL INDEX Modification No. 4015 item No. Request to consider a 90 day review of a previously approved Mod 4015 modification which permitted the installation of a 40 foot high, free standing animated sign containing 257± square feet, whereas. No Actio . the Fashion Island Planned Community District Regulations limit free standing signs to an area of 50 square feet (per face) and a height of 5 feet and prohibit any flashing, blinking or any other type of sign animation. LOCATION: Lot W, Tract No. 6015, located at 451 Newport Center Drive, on the westerly side of Newport Center Drive, between San Miguel Drive and San Nicolas Drive, in Fashion Island. . ZONE: P -C APPLICANT: Hard Rock Cafe, Newport Beach OWNER: The Irvine Company, Newport Beach Chairman Edwards stated that additional signage should be added to the building inasmuch as the animated sign is concealed by the landscaping adjacent to the building. Commissioner Ridgeway has observed that the animated sign is popular with the public. Commissioner Glover stated that she has been informed that the animated sign is too small. After reviewing this matter, the Planning Commission made the determination that no changes to the conditions of approval were necessary, and so no action was necessary on this item. • -41- MINUTES CITY OF NEWPORT BEA61uary 4' 1993 ROLL CALL INDEX Review of Standard Landscape Conditions Item s Review of the Planning Commission's standard landscape conditions in light of the City Council's recent adoption of the Landscape Condition Water Efficient Landscape Ordinance. No action James Hewicker, Planning Director, stated that there is an existing Ordinance regarding the water efficient landscape requirements. The developers are not required to submit the plans to the City; however, he opined that in the situation where there is a discretionary permit coming before the Planning Commission that the applicant should be required to provide all of the material that would be required under the Water Efficient Landscape Ordinance for review and to require the Landscape Architect to certify that the landscaping has been installed per the plan. . Commissioner Ridgeway questioned why the developer has been singled out and why not apply the requirement to the project. Mr. Hewicker explained that the intent of the State Law was not to require that individual homeowners be required to go through the process, but a developer of a project with a certain area to be landscaped. The Water Efficient Landscape Ordinance was mandated by the State Department of Water Resources. Commissioner Pomeroy stated that he believed that evapotranspiration was to create as much water as could go down through the water shed. Mr. Hewicker explained that the listed definitions are from a State Ordinance. Commissioner Pomeroy opined that the issue is an overkill and bureaucratic and be would request that it be eliminated Mr. Hewicker explained that the issue is that the Commission would inform staff how to implement the regulations that have been adopted by the Council. Whether a certain type of development comes before the Planning Commission or not, the applicant is required under the Landscape Ordinance to have landscape plans prepared and to install landscaping per the plan. The applicant is not required to submit the plans, and staff has no authority to require the applicant to comply with the law. The -42- 4 COMMISSIONERS MINUTES CITY OF NEWPORT BEAary 4""' ROLL CALL INDEX Planning Commission is the planning body that requires landscape plans, the plans are generally prepared by a landscape architect according to certain standards. The plans are submitted to staff for review because the Commission is concerned about the appearance of a particular development for specific reasons. There . is no review authority if the request is to comply with the conservation requirements that have been adopted by the City. In response to a question posed by Commissioner Ridgeway, Mr. Hewicker replied that the developers are not required under the Water Efficient Landscape Ordinance to submit a landscape plan to the City. They are required to retain the services of a landscape architect, prepare landscape and irrigation plans, do a soil analysis, and install landscaping; however, the developers are not required to submit plans to the City for review. Mr. Hewicker described the procedure that staff follows when landscape plans are submitted for plan check in accordance with conditions of approval on discretionary permits. Commissioner Glover and Commissioner Gifford expressed their support of the existing policy that gives the Commission the opportunity to review the landscape plans. In response to the Commission's comments, Mr. Hewicker stated that staff will proceed with the policy that has existed in the past. General Plan Amendment No. 93 -1 n =4 Request to initiate an amendment to the Newport Beach General GPA 93 -1 Plan as follows: Removed from A. Recreation and Marine Commercial Desi agn tion• Request calendar to amend the Land Use Element of the Newport Beach General Plan and the Local Coastal Program, Land Use Plan to revise the Recreation and Maine Commercial land use designation to eliminate the requirement for the provision of incentive uses in association with the -43- I uhl Y.j CITY OF NEWPORT BEA6*"a'y 4, 1993 ROLL CALL INDEX construction of general purpose office and general industrial uses. B. Seaward Road, Request of Seaward 17, Inc. to amend the General Plan Land Use Element to redesignate a strip of. property adjacent to Lots 164 through 181 of the Corona Highlands Subdivision in an unincorporated portion of the Newport Coast development from Recreational and Environmental Open Space to Single Family Detached, as an action preliminary to the incorporation of the area into the City of Newport Beach. INITIATED BY: The City of Newport.Beach Mr. Hewicker requested that Discussion Item No. 4 be removed from calendar. ion 1 ayes * Motion was made and voted on to remove Item No. 4 from calendar. MOTION CARRIED. ADDITIONAL BUSINESS: add l i Business Motion * Motion was made and voted on to excuse Commissioners Merrill All ayes and Ridgeway from the Planning Commission meeting of February Merrill 18, 1993. MOTION CARRIED. Ridgeway Excused sss HARRY MERRIL 4 SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION s s s ADJOURNMENT: 10:25 p.m. adjourn • - -44-