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HomeMy WebLinkAboutExhibit 30Draft Resolution No. 2008- Fury Revocation Hearing February 21, 2008 RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH REVOKING USE PERMIT NO. 3162 AND USE PERMIT NO. 2005 -018 (FURY ROK & ROL SUSHI LOUNGE) ON PROPERTY LOCATED 4221 DOLPHIN STRIKER WAY (PA2005 -087) THE PLANNING COMMISSION FOR THE CITY OF NEWPORT BEACH HEREBY FINDS, RESOLVES AND ORDERS AS FOLLOWS: WHEREAS, Fury Rok & Rol Sushi a ounge ( "Fury") is located on the westerly side of MacArthur Blvd., between Martingale Way and Newport Drive at 4221 Dolphin Striker Way. WHEREAS, in 1985, the Planning Commission considered and approved Use Permit No. 3162 authorizing an expansion of the existing restaurant. WHEREAS, on July 7, 2005, the Planning Commission adopted Resolution No. 1671, Use Permit No. 2005 -018, amending and restating the Use Permit conditions of approval, authorizing a restaurant with accessory live entertainment and dancing. WHEREAS, pursuant to Section 20.96.040 of the City of Newport Beach Municipal Code, the Planning Director determined that there were reasonable grounds for the revocation of Use Permit No. 3162 and Use Permit No. 2005 -018 located at 4221 Dolphin Striker Way and set a public hearing so that the Planning Commission could set a date to consider the revocation of Use Permit Nos. 3162 and 2005 -018 ( "Use Permit'). WHEREAS, after giving proper notice in accordance with law, a public hearing was held on January 17, 2008 in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. The Planning Commission voted 4 to 3 to set a revocation hearing for the Use Permit. WHEREAS, due to the urgency of the public safety and nuisance concerns, the public hearing was set for February 21, 2008. WHEREAS, after giving notice in accordance with law, a public hearing was held on February 21, 2008 in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. WHEREAS, Condition No. 27 states that "the eating and drinking establishment shall take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks and areas surrounding the alcoholic beverage outlet and adjacent properties during business hours. If the operator fails to discourage or correct nuisances, the Planning Commission may review, modify or revoke this Use Permit in accordance with Chapter 20.96 of the Zoning Code." WHEREAS, on November 2 and 9, 2007 and January 25 and 31, 2008, the Newport Beach Police Department Officers observed in an undercover capacity numerous instances of Fury patrons causing objectionable conditions in the shared �15 City of Newport Beach Planning Commission Resolution No. _ Page 2 ;f9 parking lot and the adjacent parking structure that constitute a nuisance including, but not limited to, public urination, vomiting, drinking alcoholic beverages, narcotics use, lewd acts, fights, and littering. WHEREAS, despite being put on notice of the nuisance behavior in the parking areas, adjacent properties and areas surrounding the alcoholic beverage outlet, the operators of the Fury and owner of the property have failed to take action to discourage correct the nuisance, which is detrimental to the health, safety, peace, morals, comfort and general welfare of the community. WHEREAS, Condition No. 29 states that "the quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The licensee shall maintain records that reflect separately the gross sale of food and the gross sale of alcoholic beverages of the licensed business. Said records shall be kept no less frequently than on a quarterly basis and shall be made available to the Department on demand." WHEREAS, the City has requested gross sales records and supporting documents from Fury on October 18 and 23, 2007 and January 4, 18 and 24, 2008. In response, Fury's operators produced summary reports. Fury's operators have not produced the detailed records so that an independent verification of the summaries can be performed. The operators' failure to produce records to verify the summary reports is a violation of Condition No. 29. WHEREAS, the summary reports provided by Fury reveal that quarterly gross sales requirements pursuant to Condition No. 29 have been violated from July 2007 through December 2007. During this time period the sale of alcohol exceeded food sales during this time period. WHEREAS, Condition No. 36 requires the applicant to submit a comprehensive security plan for review and approval by the Newport Beach Police Department prior to obtaining a certificate of occupancy. The procedures included in the plan and any recommendations made by the Police Department are required to be implemented and adhered to for the life of the Use Permit. WHEREAS, on October 18, 2007, the City requested that Fury provide a comprehensive security plan to the Police Department for approval. On November 8, 2007 a draft security plan was produced by Fury's security company. The Police Department made recommendations and requested they resubmit the plan. On January 3, 2008 Fury provided a revised security plan to the Police Department for approval, the plan did not include the Police Department's previous recommendations and Fury was asked to incorporate the recommendations and resubmit the security plan. On January 23, 2008, Fury's security company met with the police department but has not submitted a revised security plan in violation of Condition No. 36. 0 City of Newport Beach Planning Commission Resolution No. _ Page 3 of 9 WHEREAS, Condition No. 15 states that "this Use Permit shall be terminated if the operation is no longer maintained as a "bona fide public eating place" as defined by the California Department of Alcoholic Beverage Control." WHEREAS, a "Bona fide public eating place" is defined in Business and Professions Code Section 23038 and incorporated into the Department of Alcoholic Beverage Control's definition of a` type 47 license. In part, a "bona fide public eating place" is a place which is regularly, and in a bona fide manner, used and kept open for the serving of meals to guests for compensation. According to the Department of Alcoholic Beverage Control, a Type 47 license "[a]uthorizes the sale of beer, wine and distilled spirits for consumption on the licensed premises. Must operate and maintain the licensed premises as a bona fide eating place. Must make actual substantial sales of meals, during the normal meal hours that they are open, at least five days a week. Normal mealtimes are 6:00 a.m. -9:00 a.m., 11:00 a.m. -2:00 p.m. and 6:00 p.m. -9:00 p.m. Premises that are not open five days a week must serve meals on the days they are open. Minors are allowed on the premises." WHEREAS, among other things, undercover inspections conducted by the Police Department on October 18, November 2, November 9, November 27, 2007, and January 25 and 31, 2008, as well as evidence obtained from the intemet, the gross sales data and videos obtained from the interior of the establishment, reveal that the Fury is not operated as a "bona fide eating place" because Fury is not kept open for the serving of meals during all hours of operation, not making substantial sales of meals, and not allowing minors on the premises after 10 p.m. WHEREAS, Condition No. 20 states that the approval of this Use Permit does not permit the premises to operate as a bar, tavern, cocktail lounge, nightclub or commercial recreation and entertainment use as defined in Section 20.05.050(1) of the Municipal Code. Section 20.05.050(1) includes dance halls which are defined by Section 5.32.010 as "a place open to the public upon payment of an admission fee where music is provided and people are allowed to dance." WHEREAS, among other things, the undercover inspections conducted by the Police Department on October 18, November 2, November 9, November 27, 2007, and January 25 and 31, 2008, as well as evidence obtained from the intemet, the gross sales data and videos obtained from the interior of the establishment reveal that Fury is not operated as a restaurant but is operated as: (1) a bar or cocktail lounge in that the principal purpose of the Fury is to sell or serve alcoholic beverages for consumption on the premises; ry provides an area for serving alcoholic beverages that is operated during hours not corresponding to regular meal service hours; (2) a nightclub; and (3) a dance hall in that the establishment is open to the public upon payment of an admission fee, music is provided and people are allowed to dance. WHEREAS, Condition No. 13 requires the operator to obtain a Cafe Dance permit pursuant to Section 5.32.010 of the Municipal Code which states, in pertinent part, that the term cafe dance shall mean any dance that is open to the public without payment of Al City of Newport Beach Planning Commission Resolution No. _ Page 4 of 9 an admission fee, which is conducted in a restaurant or other establishment that serves food and beverages. WHEREAS, Condition No. 19 states that any event or activity staged by an outside promoter or entity, where the restaurant owner or his/her employees or representatives share in any profits, or pay any percentage or commission to a promoter or any other person based upon money collected as a door charge, cover charge or any other form of admission charge, including minimum drink orders or sale of drinks is prohibited. WHEREAS, on November 2, 2007 and January 25, 2008, Officers observed in an undercover capacity that Door Hosts collected $20 cover charges as admission to the establishment. WHEREAS, Friday and Saturday night events are staged and advertised by Promoters "The Social Group." Tickets are available by "The Social Group" for admission into the establishment at a price of $20 per ticket on various ticket broker websites. WHEREAS, "The Social Group" is a team of Promoters that charges a fee to nightclubs for their promotional services. WHEREAS, "The Social Group" advertises that Fury is a nightclub that opens at 10 p.m. on Friday and Saturday nights. WHEREAS, the use of promoters who provide services for a fee based on admission to the establishment and charging a fee for admission is a violation of the Caf6 Dance Permit and Condition No. 19. WHEREAS, Condition No. 16 states that full menu food service shall be available for ordering at all times that the restaurant establishment is open for business. WHEREAS, Fury's hours of operation are from 11:00 a.m. to 2:00 a.m. WHEREAS, on September 1 and 7, 2007 Patrol Officers conducting routine bar checks reported the kitchen was closed at midnight and there was still a large crowd in the establishment. WHEREAS, on October 18 and November 2, 2007, and January 31, 2008, Officers acting in an undercover capacity observed that they were not able to order from the full menu as only a limited menu was available after 10:00 p.m. WHEREAS, the failure to provide a full menu during all times that the restaurant establishment is open is a violation of Condition No. 16. WHEREAS, Condition Nos. 3, 4 and 5 of the Use Permit require that 16 off -site parking spaces be maintained at the parking garage described as located on Parcel No. V City of Newport Beach Planning Commission Resolution No. Page 5 of _ 9 1 of Parcel Map 83 -705 pursuant to a recorded covenant and that restaurant employees utilize these parking spaces. WHEREAS, exterior inspections by Code Enforcement and /or the Police Department conducted on November 1, 10, 15 and 29, 2007 and January 30 and 31, 2008 reveal employees are not parking off -site, in violation of Condition Nos. 3, 4 and 5. WHEREAS, Condition No. 23 states that the operator of the restaurant facility shall be responsible for the control of noise generated by the subject facility. WHEREAS, Officers report the music from the establishment can be heard at neighboring businesses and inside a car with all the windows shut. WHEREAS, Condition No. 26 states that 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. WHEREAS, the Fury is currently in compliance with this condition but was previously not in compliance with this condition. WHEREAS, Condition No. 21 states that strict adherence to maximum occupancy limits is required. WHEREAS, the operators were cited by the Newport Beach Police Department for overcrowding and blocking isles in violations of Uniform Fire Code Sections 2501.13.3 and 1203 on January 26, 2008 after a count out was conducted by uniformed Patrol Officers. The officers counted out 518 subjects within the establishment, well over the posted maximum occupancy of 297. The owners and operators have violated Condition No. 21 by exceeding the maximum occupancy limits WHEREAS, Condition No. 18 states that the applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use will be cause for revocation of this permit. WHEREAS, there are multiple violations of the Use Permit, each violation of the Use Permit is a violation of the Newport Beach Municipal Code. WHEREAS, the operators were issued municipal citations on September 13 and September 21, 2007 that were not appealed and are now final. WHEREAS, the operators have acted in violation of California Fire Code Section 105.6.32 for the use of pyrotechnics on site, and have been subsequently warned by the Newport Beach Fire Department. WHEREAS, the operators were cited for exceeding their maximum occupancy limits on January 26, 2008. City of Newport Beach Planning Commission Resolution No. _ Page 6 of 9 WHEREAS, Fury's establishment, which opened for business June 22, 2007, resides in Newport Beach Police Reporting District 34. Between July 1, 2007 and February 3, 2008, Fury patrons account for forty-one (41) of the one - hundred and twenty (120) arrests in Reporting District 34; accounting for over 34% of the arrests in Reporting District 34. WHEREAS, the Police Department has responded to an unusually high number of calls for assistance and service to Fury since Fury has opened for business. Additionally, a high number of alcohol related arrests are occurring directly related to Fury patrons constituting a nuisance that is detrimental to the public health, safety, peace, morals, comfort and /or welfare of the community. WHEREAS, violations observed by the Police Department during undercover investigations such as public urination, lewd acts, narcotics use, littering, vomiting, fighting and drinking in the parking lot as well as the excessive number of arrests related to overly intoxicated patrons and other patrons constitute nuisances that are detrimental to the public health, safety, peace, morals, comfort and /or welfare of the community. NOW, THEREFORE, BE IT RESOLVED that based in the aforementioned findings, the Planning Commission finds as follows: Section 1. The Recitals above are hereby declared to be true, accurate, and correct. Section 2. The Planning Commission hereby finds that the Administrative Record which was considered by the Planning Commission in adopting this Resolution consists, without limitation, of all documents, correspondence, testimony, photographs, and other information presented or provided to the Planning Director, Planning Commission and City including, without limitation, testimony received at Planning Commission meetings, staff reports, agendas, notices, meeting minutes, police reports, correspondence, and all other information provided to the City and retained in the files of the City, its staff and attorneys, and such is hereby incorporated by reference into the Administrative Record and is available upon request ( "Administrative Record "). Section 3. The Planning Commission finds that notice of this hearing was in conformance with California law. Section 4. The Planning Commission finds as follows: 1. The owners and operators have violated Condition No. 27 because they have failed to take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks and areas surrounding the alcoholic beverage outlet and adjacent properties during business hours. Among other things, the owners and operators have been provided notice of the nuisance conditions by the City and have failed to discourage or correct the nuisances which include, but are not limited to, public urination, vomiting, drinking alcoholic beverages, narcotics use, lewd acts, 3 City of Newport Beach Planning Commission Resolution No. _ Page 7 of 9 fights, and littering occurring in the parking areas, in the areas surrounding the establishment and on adjacent properties. 2. The owners and operators have violated Condition No. 29 which provides that the quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. Among other things, the summary reports filed by Fury show that the alcohol sales exceed food sales from July 2007 through December 2007. 3. The owners and operators have violated Condition No. 29 which provides that records that reflect separately the gross sale of food and the gross sale of alcoholic beverages of the licensed business shall be made available to the Department on demand. Despite numerous requests for the documents used to develop the summaries of gross alcohol and food sales, this information has not been provided to the City. 4. The owners and operators have violated Condition No. 36 because, among other things, they have not had a comprehensive security plan reviewed and approved by the Newport Beach Police Department prior to obtaining a certificate of occupancy. In addition, the owners and operators have not incorporated procedures and recommendations of the Police Department in the security plan implemented and adhered to the security plan. 5. The owners and operators have violated Condition No. 15 because, the establishment is no longer maintained as a bona fide public eating place as defined by the California Department of Alcoholic Beverage Control. Among other things, the undercover inspections by the Police Department on October 18, November 2, November 9, 2007, and January 25 and 31, 2008, as well as evidence obtained from the internet, the gross sales data and videos obtained from the interior of the establishment reveal that Fury is not operated as a "bona fide eating place" because Fury is not kept open for the serving of meals at all hours, not making substantial sales of meals, and not allowing minors on the premises during certain hours of operation. 6. The owners and operators have violated Condition No. 20 in that they are using the premises to operate as a bar, cocktail lounge, nightclub and dance hall. Among other things, the undercover inspections by the Police Department on October 18, November 2, November 9, November 27, 2007, and January 25 and 31, 2008, as well as evidence obtained from the internet, the gross sales data and videos obtained from the interior of the establishment reveal that Fury is not operated as a restaurant but is operated as: (1) a bar and cocktail lounge in that the principal purpose of the Fury is to sell or serve alcoholic beverages for consumption on the premises; Fury provides an area for serving alcoholic beverages that is operated during hours not corresponding to regular meal service hours; (2) a nightclub; and (3) a dance hall in that the establishment is open to the public upon payment of an admission fee, music is provided and people are allowed to dance. 7. The owners and operators have violated Condition No. 19 in that they are using outside promoters who are paid a portion of the admission charges. 3� City of Newport Beach Planning Commission Resolution No. _ Page 8 of 9 8. The owners and operators have violated the Caf& Dance Permit in that they are charging a fee for entry into the premises to dance in the premises. 9. The owners and operators have violated Condition No. 21 by exceeding the maximum occupancy limits. 10. The owners and operators have violated Condition No. 16 by failing to provide a full menu for ordering at all times that the restaurant establishment is open for business. Among other things, on October 18, November 2, 2007, and January 31, 2008, Officers acting in an undercover capacity observed that they were not able to order from the full menu as only a limited menu was available after 10:00 p.m. 11. The owners and operators have violated Condition Nos. 3, 4 and 5 of the Use Permit which require that 16 off -site parking spaces be maintained at the parking garage described as located on Parcel No. 1 of Parcel Map 83 -705 pursuant to a recorded covenant and that restaurant employees utilize these parking spaces. Among other things, exterior inspections by Code Enforcement and /or the Police Department conducted on November 1, 10, 15 and 29, 2007 and January 30 and 31, 2008 reveal employees are not parking off -site. 12. The owners and operators have violated Condition No. 23 in that they have failed to control of noise generated by the subject facility. Among other things, Officers have reported that music from the establishment can be heard at neighboring businesses and inside a car with all the windows shut. 13. The owners and operators have violated Condition No. 26 in that the owners, managers and employees selling alcoholic beverages had not successfully complete a certified training program in responsible methods and skills for selling alcoholic beverages within 60 days of hiring. Among other things, the evidence shows that the establishment was open in July 2007 but the required training was not completed until December 2007. 14. The owners and operators have violated Condition No. 18 by failing to comply with all federal, state, and local laws. Among other things, there have been multiple violations of the Use Permit and each violation of the Use Permit is a violation of the Newport Beach Municipal Code. In addition, the operators were issued municipal citations on September 13 and 21, 2007 that were not appealed and are now final. The operators were issued a citation on January 26, 2008 for violation of the maximum occupancy limits. Furthermore, the operators have acted in violation of California Fire Code Section 105.6.32 for the use of pyrotechnics on site. 15. The owners and operators have also maintained conditions that constitute a nuisance that is detrimental to the public health, safety, peace, morals, comfort and /or welfare of the community. Among other things, the Police Department has responded to an unusually high number of calls for assistance and service to Fury since Fury has opened for business. Additionally, a high number of alcohol related arrests are occurring directly related to Fury patrons constituting a nuisance. Furthermore, violations observed a City of Newport Beach Planning Commission Resolution No. _ Page 9 of 9 by the Police Department during undercover investigations such as public urination, lewd acts, narcotics use, littering, fighting, vomiting and drinking in the parking lot as well as the excessive number of arrests related to overly intoxicated patrons and other patrons constitute nuisances. Section 5. The Planning Commission finds that pursuant to the Conditions of the Use Permit allowing for revocation, Section 20.96.040 of the Municipal Code, the Administrative Record, the findings in Sections 1, 2, 3, and 4 above, sufficient grounds exist to revoke Use Permit Nos. 3162 and 2005 -018. Based thereon, it is hereby resolved that Use Permit Nos. 3162 and 2005 -018 are hereby revoked because the owners and operators have violated the terms or conditions of approval of the Use Permit, the operators and owners are maintaining a nuisance that is detrimental to the public health, safety, peace, morals, comfort and /or welfare of the community, and other laws or regulations have been violated. Section 6. This action shall be become final and effective fourteen (14) days after the adoption of this Resolution unless within such time an appealed is filled with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED AND ADOPTED THIS 21sT DAY OF FEBRUARY 2008 AYES: NOES: ABSENT: M Robert Hawkins, Chairman BY: Bradley Hillgren, Secretary `33