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HomeMy WebLinkAbout14 - Request to Modify/Remove Conditions on its ABC License; and Discussion of Procedures for City Review of Modifications to ABC License Conditions RequestREPORT TO THE MAYOR AND CITY COUNCIL SUBJECT: Request of Speedway of Newport Beach, LLC to Modify and Remove Conditions on its Alcoholic Beverage License; and Discussion of Procedures for City Review of Modifications to Alcoholic Beverage License Conditions ACTION: Authorize the Mayor to forward a letter to the Department of Alcoholic Beverage Control objecting to the requested modification and removal of conditions. Background Effective January 1, 1998, Section 23803 of the Business and Professions Code was amended to require the Department of Alcohol Beverage Control (ABC) to notify the local governing body of any petition to remove or modify conditions on an alcohol beverage license. The local governing body, the City Council in this case, has 30 days to object to the modification or removal of ABC license conditions. An objection by the local governing body will then require the ABC to hold a hearing if the department recommends approval of the petition. On July 27, 1998, the City Council received correspondence from the ABC, informing it of the request of Speedway of Newport Beach, LLC for modification and removal of conditions on its alcohol beverage license. Discussion Request of Speedway of Newport Beach, LLC Speedway has requested the following changes to the conditions of its alcohol beverage license: • Delete Condition 2 which prohibits live entertainment. • Modify Condition 5 which limits the alcoholic beverage service on the patio to 11:00 PM daily. The request is to allow the patio alcoholic beverage service until 12:00 midnight on weekends. • Delete Condition 8 which prohibits "happy hour" reduced price alcoholic beverage promotions. • Delete Condition 13 which prohibits dancing on the premises. In this case, the Use Permit for the property contains specific conditions which prohibit live entertainment and dancing. In order to delete the conditions which prohibit these activities, an amendment to the Use Permit must be approved by the Planning Commission. CITY OF NEWPORT BEACH Hearing Date: August 10, 1998 �,Favogr COMMUNITY AND ECONOMIC DEVELOPMENT Agenda Item No.: 14 PLANNING DEPARTMENT Staff Person: Patricia L. Temple 3300 NEWPORT BOULEVARD (949) 644 -3200 NEWPORT REACH, CA 92658 (949) 644'3200% FAX (949) 6443250 REPORT TO THE MAYOR AND CITY COUNCIL SUBJECT: Request of Speedway of Newport Beach, LLC to Modify and Remove Conditions on its Alcoholic Beverage License; and Discussion of Procedures for City Review of Modifications to Alcoholic Beverage License Conditions ACTION: Authorize the Mayor to forward a letter to the Department of Alcoholic Beverage Control objecting to the requested modification and removal of conditions. Background Effective January 1, 1998, Section 23803 of the Business and Professions Code was amended to require the Department of Alcohol Beverage Control (ABC) to notify the local governing body of any petition to remove or modify conditions on an alcohol beverage license. The local governing body, the City Council in this case, has 30 days to object to the modification or removal of ABC license conditions. An objection by the local governing body will then require the ABC to hold a hearing if the department recommends approval of the petition. On July 27, 1998, the City Council received correspondence from the ABC, informing it of the request of Speedway of Newport Beach, LLC for modification and removal of conditions on its alcohol beverage license. Discussion Request of Speedway of Newport Beach, LLC Speedway has requested the following changes to the conditions of its alcohol beverage license: • Delete Condition 2 which prohibits live entertainment. • Modify Condition 5 which limits the alcoholic beverage service on the patio to 11:00 PM daily. The request is to allow the patio alcoholic beverage service until 12:00 midnight on weekends. • Delete Condition 8 which prohibits "happy hour" reduced price alcoholic beverage promotions. • Delete Condition 13 which prohibits dancing on the premises. In this case, the Use Permit for the property contains specific conditions which prohibit live entertainment and dancing. In order to delete the conditions which prohibit these activities, an amendment to the Use Permit must be approved by the Planning Commission. Additionally, the Outdoor Dining Permit contains limitations on the patio hours of 10:00 PM Sunday through Thursday, and 12:00 midnight Friday and Saturday. While the applicant's request for weekend hours to midnight is consistent with these conditions, the existing license conditions are not consistent with the weekday limitations of the City's permit. Also, in light of the desired changes to the operational characteristics of the restaurant, staff of the Police Department does not recommend that the condition regarding reduced drink price promotions be deleted until the project is reconsidered through the Use Permit process. Staff has prepared a letter to the ABC, objecting to the petition to revise and delete alcohol beverage license conditions, for the consideration of the City Council. Procedures for City Review of ABC License Modifications Section 23803 of the Business and Professions Code identifies the governing body as the authority to register an objection to a modification to ABC license conditions. This is different from B &P Code Section 23958.4 (Determination of convenience and necessity to issue a license) which contains a specific provision allowing the governing body to delegate their authority to another entity, such as the Police Department. Because of this inconsistency, staff contacted the ABC to see if the City Council could delegate the authority for the objection to license modifications in a similar manner. In speaking with staff at the ABC, it was indicated that the Department has made a determination that a delegation of authority similar to that provided for in Section 23958.4 is also appropriate for this new objection procedure. Further, the Department is in the process of drafting correspondence to all Cities setting forth procedures for the governing body to delegate the objection to license modification. ABC staff has indicated that this process will probably involve the adoption of a resolution with specific language suggested. City Council Policy K -7 sets forth the procedures regarding the determination of convenience and necessity, including delegation of this responsibility to the Police Department. It is the opinion of staff that objection to the removal or modification of license conditions, as provided for in B &P Code Section 23803, is similar to that function. Therefore, when we receive the letter from ABC, staff will return to City Council with a resolution and an amendment to Council Policy K -7 delegatingthe Section 23803 objection authority to the Police Department. Submitted by: SHARONZ.WOOD Assistant City Manager V !� D244 Attachments: I. Draft letter to ABC 2. July 27, 1998 letter from ABC with attachments Prepared by: PATRICIA L. TEMPLE Planning Director Speedway of Newport Beach August 10, 1998 Page 2 CITY OF NEWPORT BEACH OFFICE OF THE CITY COUNCIL c ._.vim `P 26r_07V 6 Mayor Thomas Cole Edwards Mayor Pro Tem Dennis D. O'Neil Council Members Jan Debay Norma J. Glover John W. Hedges John E. Noyes Tom W. Thomson Mr. Kenneth J. Kelly, District Administrator Department of Alcoholic Beverage Control Santa Ana District Office 28 Civic Center Plaza, Room 369 Santa Ana, CA 92701 SUBJECT: Speedway of Newport Beach, LLC Dear Mr. Kelly, August 11, 1998 VIA CERTIFIED MAIL This is to inform you that the Newport Beach City Council objects to the request of Speedway of Newport Beach, LLC for the removal and modification of certain conditions on its alcoholic beverage license. Specifically, the removal of the conditions related to the provision of live entertainment and dancing would not be allowed by the Use Permit approved by the City for this establishment. An amendment to the Use Permit, approved by the Planning Commission, is required before these activities can be allowed on -site. While the Outdoor Dining Permit does accommodate patio hours up to 12:00 midnight on Friday and Saturday evenings, we would also like to bring to your attention that the City's current limitation on patio hours at all other times is 10:00 PM. Therefore, the existing alcoholic beverage license is inconsistent with the City's approval. Until all necessary permit amendments are considered and approved by the City, we also object to the removal of the condition related to drink specials and happy hour pricing, since the effect of removal of this condition should only be considered in relation to the overall operational characteristics of the restaurant. City Hall • 3300 Newport Boulevard • Newport Beach, California 92663 -3884 If you have any questions or need additional information in regards to this matter, please call Patricia Temple, Planning Director, at (949) 644 -3200. Very truly yours, Thomas Cole Edwards MAYOR xc: Investigator Susan Szklany, Dept. of Alcoholic Beverage Control Bob McDonnel, Police Chief File: Use Permit No. 3598 and Outdoor Dining Permit No. 35 STATE OF CALIFORNIA — BUSINESS. TRANSPOh. ATION AND HOUSING AGENCY PETE WILSON. Govemo, DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL c; (_ F I V E D 28 Civic Ana enter Plaza Office 28 Civic Center Plaza Aoom 369 i Santa Ana CA 92701 (714) 558 -4101 OFFICE OF THE CITY COUNCIL CITY OF NEWPORT BEACH 3300 Newport Blvd. Newport Beach, CA 92663 Dear Council Members: '93 JLL 27 'M :34 CERTIFIED MAIL July 23; X993 :. r' f:- DEAC. RE: SPEEDWAY OF NEWPORT BEACH, LLC Speedway of Newport Beach 353 E. Coast Hwy. Newport Beach, CA 92663 File: 47- 329036 This is to inform you that pursuant to an amendment to Section 23803 of the Business and Professions Code which became effective January 1, 1998, the Department is required to notify local governing bodies of any petition to remove or modify conditions on an alcoholic beverage license. Please be advised that the above - referenced licensee, whose currently licensed premises is within your jurisdiction, has petitioned the Department to remove or modify certain conditions on their alcoholic beverage license. I have enclosed the following items for your information and consideration: 1. A copy of Section 23803 of the Business and Professions Code. 2. A copy of the existing Petition for Conditional License, which contains the license conditions, and the grounds for their original imposition. 3. A copy of the licensee's letter describing the conditions the licensee is seeking to remove or modify. According to the provisions of Section 23803 BPC, you have thirty (30) days to file a written objection to the modification/removal of these conditions. If you have any questions or need any additional assistance in this matter, please do not hesitate to contact Investigator Susan Szklany at the above number. / n KJK: ss Enclosures Sincerely, /�/ Date / Copies Sent To: enne a •�ayor District Admi ator 10,61 uncil Member �anager ❑ AtiAroey Y_:Alt a ' 0 Section 23803 - Business and Professions Code Effective January 1, 1998 Section 23803: Statutes of 1997, Chapter 454: SB 609 (Karnette) Section 23803 has been amended to require the department to notify the local governing body of any petition to remove or modify conditions. The local governing body has 30 days in which to object to the modification or removal. A hearing shall be held on the objection if the department recommends approval of the petition. Section 23803 will read as follows: 23803. The department, upon its own motion or upon the petition of a licensee or a transferee who has filed an application for the transfer of the license, if it is satisfied that the grounds which caused the imposition of the conditions no longer exist, shall order their removal or modification, provided written notice is given to the local governing body of the area in which the premises are located. The local governing body has 30 days to file written objections to the removal or modification of any condition. The department may not remove or modify any condition to which an objection has been filed without holding a hearing as provided in Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. Any petition for the removal or modification of a condition pursuant to this section shall be accompanied by a fee of one hundred dollars ($100). L BEFORE THE DEPARTN! T OF ALCOHOLIC BEVERAG; ONTROL �F THE STATE OF CALIFORNIA In the Matter of the Application of: File: 47- 329036 SPEEDWAY OF NEWPORT BEACH LLC 353 E. Coast Hwy. Reg: Newport Beach, CA 92660 PETITION FOR CONDITIONAL LICENSE For issuance of an On Sale General Eating Place License Under the Alcoholic Beverage Control Act WHEREAS, petitioner(s) has/have filed an application for the issuance of the above - referred -to license(s) for the above - mentioned premises; and, WHEREAS, the proposed premises is within the immediate vicinity of a residential area; and, WHEREAS, issuance of an unrestricted license without the below described conditions may interfere with the nearby residents quiet enjoyment of their homes; and, WHEREAS, petitioner(s) intend to exercise privileges of the license in an exterior patio area; and, WHEREAS, the issuance of an unrestricted license would be contrary to public welfare or morals; NOW THEREFORE, the undersigned petitioner(s) do /does hereby petition for a conditional license as follows, to -wit: 01. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The licensee shall at all times maintain records which reflect separately the gross sales of food and the gross sales 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. 02. There shall be no live entertainment of any type, including, but not limited to live music, disc jockey, karaoke, topless entertainment, male or female performers or fashion shows. 03. The use of any amplifying system(s) or device(s) is prohibited on the Patio, and the use of such system(s) or device(s) inside the premises shall not be audible beyond 50 feet from the exterior of the premises in any direction. 04. The service of alcoholic beverages on the Patio shall be restricted to waiter /waitress service and only to patrons seated at a table. 05. Sales, service and consumption of alcoholic beverages on the Patio shall be permitted only between the hours of 9:00 AM and 11:00 PM each day of the week. 06. The licensee(s) or an employee of the licensee(s) will be present on the Patio at all times that alcoholic beverages are being served or consumed. ABC -172 (5/94) 47- 329036 SPEEDWAY OF NEWPORT BEA.. i LLC Page 2 07. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee(s) as depicted on the ABC -257 dated 4 -2 -98 and ABC -253 4 -2 -98. 08. No "happy hour" type of reduced price alcoholic beverage promotion shall be allowed. 09. The subject alcoholic beverage license shall not be exchanged for a public premises type license nor operated as a public premises. 10. The back (south) door(s) shall be kept closed at all times during the operation of the premises except in cases of emergency and as follows: The back (southeast) door leading directly into the rear patio may be used to permit patron and employee ingress and egress from the premises interior to the rear patio. Said doors not to consist solely of a screen or ventilated security door. 11. Any graffiti painted or marked upon the premises or on any adjacent area under the control of the licensee(s) shall be removed or painted over within 24 hours of being applied. 12. The petitioner(s) shall be responsible for maintaining free of litter the area adjacent to the premises over which they have control, as depicted on the ABC -257 dated 4-2 -98 and ABC -253 dated 4 -2 -98. 13. There shall be no dancing allowed on the premises. This petition for conditional license is made pursuant to the provisions of Sections 23800 through 23805 of the Business and Professions Code and will be carried forward in any transfer at the applicant- premises. Petitioner(s) agree(s) to retain a copy of this petition on the premises at all times and will be prepared to produce it immediately upon the request of any peace officer. The petitioner(s) understand(s) that any violation of the foregoing condition(s) shall be grounds for the suspension or revocation of the license(s). D TDAY OF C FQ App 'cant/Petition Applicant/Petitioner ABC -172 (5194) Speedway of Newport Beach Via Airborne Express July 16, 1998 State of California Department of Alcoholic Beverage Control 28 Civic Center Plaza, Room 369 Santa Ana, California 92701 Attn: Ms. Chris Spencer, Licensing Supervisor I l `1 `o.:�Ll3 153 East Coast Highway Newport Beach, CA 92660 +REC:: l'i liD JUL 17 1998 Re: Alcoholic Beverage Control License Number 47- 329036. Modification of Conditions Two (2), Five (5), Eight (8), and Thirteen (13) to Speedway of Newport Beach's existing license. Dear Ms. Spencer: It is respectfully requested that: Condition Two (2), live entertainment, be deleted so that we can have live music, disc jockey, and karaoke inside the premises; that Condition Eight (8) be deleted so that we can offer a "happy hour' type of reduced price alcoholic beverage promotion to our patrons; that Condition Thirteen (13) be deleted so that we can have dancing on the premises. We also request that condition Five (5), sales, services and consumption of alcoholic beverages on the patio, be modified and extended to 12:00 a.m. on the weekends. The above conditions have caused us undue hardship in generating sufficient revenue to survive. Year to date our gross sales of food is averaging 83% compared to gross sales of 17% for alcoholic beverages. The percentages should be at least 75% food to 25% alcoholic beverages. We cannot compete with other licensed restaurants in the immediate area who are able to provide the above mentioned services, and this places our restaurant in an extreme disadvantage competitively. We have very little bar business between 5:00 p.m. and 7:00 p.m. because we are restricted from providing a happy hour to potential patrons. We have been restricted in booking large parties or special events during the year and especially during the Holiday and Prom seasons because we cannot provide live entertainment and dancing. Special events and parties are the life blood of the restaurant business, and if we cannot provide live entertainment at the clients' request, the client will go to a competitive restaurant in the area that can. Speedway of Newport Beach restaurant is situated directly on East Coast Highway and is surrounded by a Mobil gas station on the right, a Porsche automobile dealership on the left, and office buildings and restaurants in the rear. There are no residences within 100 ft. of the premises. Thank you for your consideration in this tter. Joseph A. r., `- Executive Vice - President — Operations r�