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HomeMy WebLinkAbout75B - VARIANCE NO 2004-09 - 215 NORTH BROADWAY REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: FEBRUARY 1, 2010 TITLE: APPROVED ? As Recommended PUBLIC HEARING - MODIFICATIONS TO ? As Amended VARIANCE NO . 2 0 04 - 0 9 FOR THE PROOF ? Ordinance on 1 S` Reading BAR LOCATED AT 215 NORTH BROADWAY ? Ordinance on 2"d Reading ? Implementing Resolution - JUSTIN REUTER AND JOEY MENDES, ? Set Public Hearing For APPLICANTS ~ CONTINUED TO . , ~~~~J`~` FILE NUMBER CITY MANAGER RECOMMENDED ACTION Adopt a resolution approving modifications to Variance No. 2004-09 as conditioned. PLANNING COMMISSION ACTION On December 14, 2009, the Planning Commission adopted a resolution approving modifications to Variance No. 2004-09 allowing a cover charge, serving draft beer, allowing bottle service, advertising or signs indicating the availability of alcohol, expansion into the basement level and allowing the hours of operation from 11:00 a.m. to 2:00 a.m. as conditioned; and adopted a resolution approving modifications to Variance No. 2004-09 pertaining to dancing, and use of the rear door by a vote of 6:0 for the Proof Bar located at 215 North Broadway. The Planning Commission deleted Condition No. 24 in the staff report (Exhibit A), regarding use of the rear door for emergencies and deliveries. This allows for Proof Bar's patrons to use the alley area behind the bar primarily as an outdoor smoking area. There would be no liquor service available in the outdoor area. On January 4, 2010, the City Council set the matter for Public Hearing at the February 1, 2010 City Council Meeting by a vote of 7:0. FISCAL IMPACT There is no fiscal impact associated with this action. Ja Trevino Executive Director Planning & Building Agency SK:rb sk\reports\va04-09 Proof Bar mod.020110.cc 75B-1 75B-2 REQUEST FOR .,,4 Planning Commission Action PLANNING COMMISSION MEETING DATE: PLANNING COMMISSION SECRETARY DECEMBER 14, 2009 APPROVED TITLE: ? As Recommended PUBLIC HEARING - MODIFICATIONS TO ? As Amended VARIANCE NO. 2004-09 FOR THE PROOF BAR ? Set Public Hearing For LOCATED AT 215 NORTH BROADWAY, JUSTIN DENIED REUTER AND JOEY MENDES, APPLICANTS ? Applicant's Request ? Staff Recommendation CONTINUED TO Prepared by Sergio Klotz Executive Director Planning Manager RECOMMENDED ACTION 1. Adopt a resolution approving modifications to Variance No. 2004-09 allowing a cover charge, serving draft beer, allowing bottle service, advertising or signs indicating the availability of alcohol, expansion into the basement level and allowing the hours of operation from 11:00 a.m. to 2:00 a.m. as conditioned. 2. Adopt a resolution denying modifications to Variance No. 2004-09 pertaining to dancing, outdoor patio area and an open rear door. These conditions are to remain in place. DISCUSSION Request of Applicant Mr. Justin Reuter and Mr. Joey Mendes, business partners of the Proof bar, are requesting approval to modify the conditions for a bar in the Santora Building located at 215 North Broadway. Property Description The bar is located in the Santora Building within the Artists Village. The building, constructed in 1929, is located at the northeast corner of Broadway and Second Street. The bar is located on the ground floor of a two-story commercial building with frontage on Broadway. The subject site has a zoning designation of Central Business-Artists Village (C3-A) and has a General Plan land use designation of District Center (DC). EXHIBIT A 75B-3 Modification to Variance No. 2004-09 December 14, 2009 Page 2 The surrounding uses include a collection of restaurant, retail, artist galleries and studios within the Santora Building: a vacant building, a former electric substation and future live-work lofts to the east; a public garage and a variety of office and commercial uses to the north; multi-family residential uses and assorted commercial uses to the west; and restaurant and the Cal State Fullerton gallery, art program and student housing to the south (Exhibits 1 and 2). Project Description The bar currently occupies approximately 2,249 square feet on the ground floor of the Santora Building. The existing floor plan layout consists of a fixed bar, storage space and non-fixed seating and tables (Exhibit 3). The applicant proposes modifications to the existing conditions of Conditional Use Permit No. 2004-21 (Exhibit 4). The changes requested include the hours of operation, outdoor sale and consumption of alcohol, allowing the rear door to be kept open, sale of draft beer, sale of "hard" alcohol by the bottle, dancing, the allowance of a cover charge and the expansion of the bar into the basement. Analysis of the Issues Variance No. 2004-09 was granted to allow a bar use within the Artists Village zone. Along with the variance granted, conditions of approval mirroring Conditional Use Permit No. 2004-21 were also granted. The request of the applicants is identical with their request to modify CUP No. 2004-21. Staff has analyzed the modifications to Variance No. 2004- 09 consistent with the analysis and recommendation of CUP No. 2004-21. The changes requested include the hours of operation, outdoor sale and consumption of alcohol, allowing the rear door to be kept open, sale of draft beer, sale of "hard" alcohol by the bottle, dancing, the allowance of a cover charge and the expansion of the bar into the basement. In 2004, when the Proof Bar was granted permission to operate a bar within the downtown, conditions were imposed to ensure that the bar would operate in concert with the surrounding uses. The conditions that were imposed were intended to mitigate potential impacts created by the use and help to ensure the use would not negatively affect the surrounding community. During the continuance period since the initial Zoning Administrator hearing in February 2008 the Police Department noted a significant number of calls for service to the area. These 75B-4 Modification to Variance No. 2004-09 December 14, 2009 Page 3 calls included a variety of incidences ranging from drunk in public, fighting, stabbing and shooting. During these calls for service it was observed that the bar facility was not operating within the boundaries of the conditions of approval. Staff brought these matters to the attention of Mr. Reuter and Mr. Mendes approximately six months ago and since then the operation has not had calls for service. The Police Department has reviewed the application for police-related concerns. The bar is located within an area of the City considered above average in police-related incidents. The area is located in Reporting District No. 165, which ranks 10th out of 102 citywide districts in total number of police-related incidents, which is not unusual for a high- activity area such as the Artists Village. In order to minimize the potential impacts associated with late hours and alcoholic beverage sales at this location, the Police Department recommended conditional approval of the project in 2004. These conditions are intended to mitigate any problems that may negatively affect the adjacent neighborhood and surrounding area that may result from the bar operations. Based on the time that has passed since the last Zoning Administrator hearing, staff has had an opportunity to further analyze the applicant's request. The following provides a brief analysis of each condition's modification request: Sales, service and consumption of alcoholic beverages shall be permitted only between the hours of 4:00 p.m. and 2:00 a.m., daily. Currently, Variance No. 2004-09 allows the bar to operate from 4:00 p.m. to 2:00 a.m. seven days a week. Those hours are consistent with the hours requested by the original applicant in 2004. The current owners of the bar have requested a start time of 6:00 a.m. to accommodate potential special events. The earlier than normal start time is concerning to staff based on the potential negative effects stemming from the early start and are recommending an amendment to allow the hours of operation from 11:00 a.m. to 2:00 a.m. No sales or consumption of alcoholic beverages shall take place outside. The applicant is requesting the use of the public alley behind the building for use as an outdoor area. While outdoor dining areas are commonplace within the downtown setting, outdoor liquor service in the absence of a food menu is not. This request creates two issues of major concern. 75B-5 Modification to Variance No. 2004-09 December 14, 2009 Page 4 The first area of concern is the potential for near-term and long-term incompatibility of land use. Currently, within the immediate surroundings residential uses are located within the Cal State Fullerton building along Second Street, as well along the west side of Broadway from First to Third Streets. Future residential uses along Sycamore Street between Second and Third Streets are already entitled and the potential addition of mixed-use zoning in the downtown could bring further residential units. Additionally, many commercial uses ranging from office to retail are located adjacent to or in close proximity of the bar. Staff has strong concerns that the use of the alley space may create negative issues with existing and future surrounding uses. The potential negative concerns include loitering, glare, noise, appearance and general clean up, any one of which may pose an issue with the continued orderly development of the area. The second area of concern relates to the assumption that the public alley is available to the applicant for purposes of expanding the bar's operations outdoors. The Santa Ana Municipal code contains provisions for outdoor dining in the public right of way (SAMC 33-168 et. seq.). Pursuant to section 33-170 the Director of Public Works may grant an outdoor dining permit to allow food service establishments to create service areas in the public right-of-way. However, such permits may only be granted for areas that are immediately adjacent to a food service establishment. As Proof is not a food service establishment, but is instead a bar with no food service, they would not be eligible for an outdoor dining permit. Staff cannot recommend approval of the applicant's request to modify the condition prohibiting the outdoor sales and service of alcohol. Further, the code prohibits such use due to the requirement that outdoor dining permits may only be granted to food service establishments. Staff recommends that the Planning Commission confirm the action of the Zoning Administrator regarding the retention of this condition. The rear door shall be kept closed at all times during the operation of the premises except in cases of emergency and to permit deliveries. Said door not to consist solely of a screen or ventilated security door. This condition was originally retained by the Zoning Administrator. The applicant has appealed this condition in order to request that the rear door be allowed to remain open, thereby allowing patrons to congregate in the public alley directly behind the bar. The appeal of this condition is directly associated with the above request to allow an outdoor area. The 75B-6 Modification to Variance No. 2004-09 December 14, 2009 Page 5 allowance to have the rear door open could create land use incompatibilities by allowing noise from the interior to escape and raise the noise level on the exterior. In addition, modification of this condition would allow Proof to effectively create an outdoor dining area not associated with a food service establishment, which is in violation of SAMC 33-170. Staff recommends that the Planning Commission confirm the action of the Zoning Administrator regarding the retention of this condition. The sale of draft beer is prohibited. The sale or service of beer on tap (or draught beer) is prohibited. This condition was originally crafted based on the previous applicant's business plan to not include beer sales but rather a "martini bar." Amendments to these conditions are recommended for approval with a revised condition to not allow the sale of pitchers of beer. Therefore the revised condition will read, "The sales of beer and malt beverages in pitchers or containers more than 16 ounces in size are prohibited." No distilled spirits shall be sold by the bottle. There appears to be a new trend in establishments selling alcohol to allow customers to order and have delivered an entire bottle of premium liquor to a table. For example, a customer would order their favorite bottle of vodka, have it delivered to their table and would serve and consume the alcohol at their leisure, without the assistance or supervision of the waiter or waitress staff. There is strong concern with this form of consumption due to the lack of monitoring by the operator or staff. Additionally, this concern would be exacerbated if outdoor and basement areas were allowed. The potential for unsupervised consumption could occur potentially resulting in excessive alcohol consumption due to the lack of waiter staff oversight. At the February 20, 2008 hearing the Zoning Administrator recommended approval of the request with modifications to the conditions. Staff is recommending a condition that a pouring device used to control portions must be attached to any champagne or distilled spirits when sold by the bottle and the submittal of an operation plan outlining the method by which the operator will train its staff and program the operation to ensure the conditions are followed. 75B-7 Modification to Variance No. 2004-09 December 14, 2009 Page 6 There shall be no dancing allowed on the premises. Although a condition was placed on Variance No. 2004-09 prohibiting dancing within this establishment, Chapter 11 of the Santa Ana Municipal Code (SAMC) addresses the conditions in which dancing and alcohol sales are allowed to occur. The restrictions on dancing are established in Chapter 11 of the SAMC. According to Chapter 11 there are two circumstances under which dancing is permissible: a public dance hall allows dancing with not less than a 500 square foot dance floor but does not allow the sale of alcoholic beverages, additionally a public dance hall is considered a regulated use, similar to bars, where the standards for their location include a separation from sensitive uses, as well as from other regulated uses; a public dancing place is required to be a bona fide eating establishment as defined by the California Business and Professions Code. Further, it requires a dance floor of not less than 300 square feet, seating at tables for at least 50 patrons, and no less than 20 percent of the floor space dedicated as a kitchen facility. The intent is to create a dinner/dance location, such as the Black Angus, where dancing is an ancillary use. The Proof Bar does not meet either standard and therefore cannot be issued a dance permit under the existing standards contained in Chapter 11. The Police Department will be contemplating an Ordinance Amendment to change the standards to allow dancing within the C3-A zone. These changes will directly impact bars and restaurants within the Artists Village by allowing dancing. The dance ordinance change will allow the Proof Bar to apply to allow patrons to dance while listening to entertainment. With the pending ordinance amendment, staff supports a modification of the condition should the dance ordinance amendment be approved. There shall be no exterior advertising of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. The applicant has requested the ability to provide an exterior vertical sign immediately outside on the west elevation. The applicant is proposing to include the word "cocktail" within the sign copy. Staff recommends approval of a modification that will allow the request as a part of the business name advertising. 75B-8 Modification to Variance No. 2004-09 December 14, 2009 Page 7 Any amendment to this conditional use permit must be submitted to the Planning Division and Police Department for review. The applicant has requested the use of a basement level room, that would be accessed via a stairway leading from the main bar area, as an expansion of the bar. Expansion into the basement area for utilization similar to the ground level bar is problematic; therefore, staff recommends additional conditions of approval to mitigate any potential negative impacts. The addition of conditions to ensure supervised consumption of alcohol, provision of staff at all times within the basement whenever the establishment is operating for security purposes and the use of the basement access door only for emergency purposes will mitigate any potential impacts. With the inclusion of these conditions, staff recommends approval of the applicant's request to expand the service area into the basement room. CEQA Compliance This project was reviewed in accordance with the Guidelines for the California Environmental Quality Act. The recommendation is exempt from further review pursuant to Section 15301. This Class 1 exemption applies to alterations to an existing operation or facility with negligible expansion. Categorical Exemption Environmental Review No. 2008-39 will be filed for this project. Se gio to AICP Princi 1 P nn r SK: jm sk\reports\va04-09 Proof Bar mod.121909.pc 75B-9 R1 R7 R7 Rt ~ ! Ron Ron f ~ 1 Rox ~ 3.. 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F. a" r- .a.:7 :F. g 2~.:. ~@r - ; 4sF~~ c~ €e~ g'ea ~a:3~a L~F-.zs r., _ - 3x3~e~5~ ' F.`. aS 1<$ycy _ E 4'Y: k~E2" Ii y-y•_;'<-~J°°. cF: _ - _ S - - _ - Gi:" F: rYp 4 2~.c£€•YY_ =3f.IE_' CC'C~# _ - _ -4-~_ - c.44 c5 - _ I .cE ....-.n r. :?s #yus S~E~e€Y~ iaF.`is1'•-35~+Gf.€ ~Y Er~~Y[.: .k.°`~- EXHIBIT 3 . ~3~-12 l-OLZ6 tf0 ~`dNb~ b1Nb'S ti ~o r + ~ ~ ;r ~y ~-"`i ~lb'Mat/0~18 'N 5 LZ ~ _ ~I 3 JJ m~Z m O o ~ ~ vam m ~ 'L~~~L*~~ ~ V O ~ ® b O J. O G_aC ~ O. ~ W ~ ~ m O IA ~ a z...y a_ o a ~ y C A ~ Sz ? ~ `g \.i\ o d yr ~ +i~~ C X akF ,~T. EL ei ' S~ S6 YY:%z ei ns '•e t ~E. Pe 2ND STREE.Ts PC;ONif_N~DE p~ ^ a a ' 4° - ~ \ aP - M = 3 c \ g A~ - \ ZD° yK % \ 5N ~ - t y ? 1 ~ "I Ul ~ ~ r \ 0 o a \ r f ~ ~ `~J.~~~_ o LW IW. [ ~ ~os ~ J 5 ~v .M \ \ Z ~ Q I, J 7~~=~3 a LOLZ6 b'~ `t/Ntf `d1Nb'S o ~ ~ ' ~ C ~ o m \i,; ~ i w ~ cy ~ to IL mo - ~Q4< r / OI = W Q pmC ~ OOyKe .d 'Z.6 as 0 0. ~NN Fl Z Z~ Z Wu 3 S m z Q a 3 LL, ~o R a ~ 0 4 F ~ S 1 r ~ m 1 ~ ~ o ~ w~ po W~ a~ W~ so 3 ~ o¢ 3 ~r ~ ~ s z ~s e - ~7 F ~.O w Page 3 of 5 75B-14 ~ ~ ( _ ~ ~ _ LOLZ6 tf0 `t/Nd t/1NtfS o s!~ C + ¢ m ~ <I_~ ~ 1.`dMat/O~JS 'N 5 L~ ~ ~ g ~ g ~ C u' ° Z < n m o aq;;~ ~ O O ~ ~ ° ~ z w a ~S }m O -O W Q g a¢4vm0 ii a Z!-~d' ?a ~NfA OONK ~ f' ~ ~ ~ ~ 0 g~ ° ~ D .`a ~la o u r lJ . ba~~ o• ~ ~ o L @ _ ~f'1 l~ ~ ~TpT~ ~ y 6 ° s z , ~ ~ ~ r €3 ' ga~yu ~ I ° m JJ W 6g~;° Lid ~ ,i.~r O W3 ag t ~ ~ y r ~ E~ ~ I ,;e i S ° r` ~~pp~z ~ } Sb S~~ `~~~l~~~ ~ r ~ ~ { ~ ~ ~f ~ r l w . 3 ~ u: ~ _ ~ w ~ ~ u ~ ~ _ ~ ~ ~ r - W ~ ~ ~ ~ L ~ ~ d Y F a ~ ~ ~ ~ j ~ ~ s ~ N ~ J~~~~ 7 ~~`-~55 - I ~ $ ~ a I - ~ LOLZ6 d~ 'dNd d1NdS e o ~ 5 d' ~ ~ :R`_'._ - _ J.dMddOaB'NSLZ ~~Z ~I € ~ C ~ C7 Nom ` fi' m CL 0 W Q o0 3 C - 4~ U w al z.e a° ? a win ooye i aO2 a 3 ry 1= ~ _ a G t - ~ ~ ` ~y ~ ~ i .n Y~ z p, ~ t a E Y" ® 1 Z _ I 2 0 ~ ~ J ~ ~o - ~ F~ ~r~ . ® F u`~ ~ IYI 9911 .E ~ ~ i- s Y r _ ~ ~v ~ ~ u o t t _ l _ $J ~ SS • Q' `N ~2 3 u ~ ~ I ° ~ o- M ~ of ~ _rt ~ 4` s ~ z~ ~ k ~ ~ - ~ og I a _ 2 I I ~ I I ~.n I .t:~ C c i~ ~ ~-i ~ 2C l \y 1 ~ ~ I ~ ~ G µ 1 d III ~ r-~ a ` i• d I I _ - ~ Y 2 I i ~ i--_-_~ cT_#'r=?-i'=~ % ~ ° ! I I ~1 `fit ' dl I t I li I / d- f I I ~ ~ ~ I I I I I I ~ ~ .il :j~ ~ .n { ~2~._ I I I I ; I ~ , ! I l / .a4et r ____1_~J_1_L1 L______ o-~~ 0 4; ~ 2 ,,N11 c°... of 11 ~7 m ~ + 3 O' - g r N I ~ I j d \ ~ . i - N ~ ~ - ~ I 'J n ~ ~ I U 7L i ~ i ~ D ~ ~ _ ~ t0 ~ ~ \ I~ I I I +a ~ ~ ~ I ~ 7~~5~~ CONDITIONS TO VARIANCE N0.2004-09 A. Planning Division 1. Any amendment to this conditional use permit must be submitted to the Planning Division and Police Department for review. 2. The project shall remain in compliance with Site Plan Review (Development Project No. 04-049). 3. A C3 parking waiver shall be applied for and approved prior to issuance of certificate of occupancy. B. Police Department 1. Sales, service and consumption of alcoholic beverages shall be permitted only between the hours of 4:00 p.m. and 2:00 a.m., daily. 2. The sale of alcoholic beverages for consumption off the premises is strictly prohibited. 3. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee(s). 4. The applicant shall post and maintain a professional quality sign on the east elevation of the premises prohibiting the consumption of alcoholic beverages outside the licensed premises. 5. No sales or consumption of alcoholic beverages shall take place outside. 6. The sale of draft beer is prohibited. 7. The sale or service of beer on tap (or draught beer) is prohibited. 8. No distilled spirits shall be sold by the bottle. 9. No employee or agent shall solicit or accept any alcoholic or non-alcoholic beverage from any customer while in the premises. EXHIBIT 4 Page 1 of 4 75B-17 10. Entertainment provided shall not be audible beyond 10 feet from the exterior of the premises in any direction. 11. Entertainment provided shall be limited to a maximum of five musicians. 12. There shall be no dancing allowed on the premises. 13. There shall be no exterior advertising of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. 14. The applicant(s) shall be responsible for maintaining free of litter the area adjacent to the premises over which they have control. 15. There shall be no coin operated games or video machines maintained upon the premises at any time. 16. There shall be no pool/billiard tables maintained upon the premises at any time. 17. There shall be no public telephones located on the exterior of the premises. Interior phones shall be restricted to outgoing calls only. 18. Any graffiti painted or marked upon the premises or on any adjacent area under control of the licensee(s) shall be removed or painted over within 24 hours of being applied. 19. The petitioner(s) shall post a placard on the exterior east elevation of the premises prohibiting loitering, pursuant to California Penal Code ("CPC") section 602. 20. It shall be the petitioner(s) responsibility to ensure that CPC section 602 is complied with at all times that the premises are in operation. 21. Petitioner(s) shall not require an admission charge, a cover charge or donation, nor shall there be a requirement to purchase a minimum number of drinks. Page 2 of 4 75B-18 22. If the City ceases providing security guards in the designated parking structure, the applicant shall provide one state licensed uniformed security guard from 6:00 p.m. until one hour after closing on Friday, Saturday and Sunday, who shall maintain order therein and prevent any activity which would interfere with the quiet enjoyment of their property by nearby residents. 23. The rear door shall be kept closed at all times during the operation of the premises except in cases of emergency and to permit deliveries. Said door not to consist solely of a screen or ventilated security door. 24. All employees must attend Responsible Beverage Server (RBS) training provided by the State Department of Alcoholic Beverage Control. 25. The designated manager of the premises must be qualified by the State Department of Alcoholic Beverage Control. 26. Neither the licensee, nor any person or entity operating the premises with the permission of the licensee, shall violate the City's adult entertainment ordinance contained in SAMC section 12-1 and 12-2. 27. The premises shall not be operated as an adult entertainment business as such term defined in SAMC section 41-1701.6. 28. The conditional use permit shall be reviewed at 90 days, six months, at one year and then annually thereafter by the Police Department for any modification to the conditions of approval. 29. Existing suite and alley lighting must conform to the provisions of Chapter 8, Article II, Division 3 of the Santa Ana Municipal Code (Building Security Ordinance). These code conditions will require that the existing project's lighting, door/window locking devises and addressing be upgraded to current code standards. Lighting standards cannot be located in required landscape planters. 30. Cash register must be visible from the street at all times and shall not be obstructed at any time by temporary or permanent signage. Page 3 of 4 75B-19 31. Window displays must be kept to a minimum for maximum visibility and shall not exceed 25 percent of window coverage. 32. Window displays and racks must be kept to a maximum height of three feet including merchandise. 33. Install a silent armed robbery alarm. Page 4 of 4 75B-20 bk:12l29/09 RESOLUTION NO. 2009-21 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA GRANTING MODIFICATIONS TO CONDITIONAL USE PERMIT NO. 2004-21 AND VARIANCE NO. 2004-09 AND GRANTING APPEAL NO. 2009-06 FOR A TYPE 48 "PUBLIC PREMISES" ALCOHOLIC BEVERAGE CONTROL LICENSE FOR THE PROPERTY LOCATED AT 215 NORTH BROADWAY BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting approval of modifications to Conditional Use Permit No. 2004- 21 for a Type 48 (on-site general "public premises") Alcoholic Beverage Control license and Variance No. 2004-09 for the property located at 215 North Broadway, currently operated as the Proof Bar. B. The request to modify Conditional Use Permit No. 2004-21 came before the Zoning Administrator of the City of Santa Ana for a duly noticed public hearing on November 4, 2009. C. The changes requested include the hours of operation, outdoor sale and consumption of alcohol, allowing the rear door to be kept open, sale of draft beer, sale of "hard" alcohol by the bottle, dancing, the allowance of a cover charge and the expansion of the bar into the basement. Following a public hearing, the Zoning Administrator granted the application in part and denied it in part. Appeal No. 2009-06 to this Planning Commission was thereafter filed by the applicant. D. Santa Ana Municipal Code Section 41-196 requires a conditional use permit for the sale of alcoholic beverages for on-site consumption. E. The applicant's appeal, together with the request to modify Conditional Use Permit No. 2004-21 and Variance No. 2004-09, came before the Planning Commission of the City of Santa Ana for a duly noticed public hearing on December 14, 2009. F. During the pendency of its application for modifications, applicant modified or eliminated three (3) requests. Applicant and City staff agreed to extended hours of operation which were less than those initially requested by applicant. Applicant formally withdrew its request for the Planning Commission to permit patron dancing upon staff's proposed revision (which the Planning Commission approves) of Condition No. 13 to the CUP and Variance. Finally, applicant withdrew any request to construct fixtures in the outdoor space behind its tenant space and/or to operate this outdoor space as a patio. Resolution No. 2009-21 Page 1 75B-21 G. Santa Ana Municipal Code Section 41-638 authorizes the Planning Commission to grant a variance upon making certain findings of approval. 1. That because of special circumstances applicable to the subject property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance is found to deprive the subject property of privileges not otherwise at variance with the intent and purpose of provisions of this Chapter. The proposed modifications to Variance No. 2004-09 to allow a cover charge, serving draft beer, bottle service, advertising or signs indicating the availability of alcohol, usage of the basement and to allow the hours of operation from 11:00 a.m. to 2:00 a.m. will continue to provide an ancillary service and amenity to the Artists Village and thereby benefit the community. The modifications to the variance help to continue allow the bar within the Artists Village to provide an additional nighttime amenity to the area. The condition modifications could create a negative impact to the surroundings. Additional conditions have been placed on Variance No. 2004-09 that will mitigate potential impacts created by the use and ensure that the use will not negatively affect the surrounding community. 2. That the granting of a variance is necessary for the preservation and enjoyment of one or more substantial property rights. Approval of the condition modifications allows the applicants to operate a bar within the Artists Village of the downtown. The modifications will add to the growing Artists Village active lifestyle; support evening activities and a variety of dining establishments. Downtown should be the place to go to experience the full character of a community, and the bar will contribute to a vibrant evening experience. 3. That the granting of a variance will not be materially detrimental to the public welfare or injurious to surrounding property. The approval of the variance will not be detrimental to persons residing or working in the area because the use, as conditioned, will not create negative or adverse impacts. The conditions imposed on the variance will mitigate any potential impacts that might occur from the proposed alcoholic beverage sales and entertainment. The additional business will assist in promoting the economic viability and enhance the livability for this area of the downtown. As conditioned, the proposed project will be in compliance with all applicable regulations and conditions imposed on a bar selling alcoholic beverages pursuant to Chapter 41 of the Santa Ana Municipal Code. 4. That the granting of a variance will not adversely affect the General Plan of the City. Resolution No. 2009-21 Page 2 75B-22 The proposed modifications will not adversely affect the General Plan. Bars and ancillary uses such as alcoholic beverage control licenses are permitted within the Central Business-Artists Village (C3-A) zoning district and the District Center (DC) General Plan designation. The project will help to facilitate Goal 2.0 to "Promote land uses which enhance the City's economic and fiscal viability." The modifications supported will help to provide a service to complement other uses within the growing Artists Village. Further, Goal 4.0 of the Land Use Element, protect and enhance development sites and districts which are unique community assets that enhance the quality of life. An establishment that adds to the nightlife of the Artists Village promotes the unique makeup of the area with a mix of residences and commercial businesses. H. Santa Ana Municipal Code Section 41-638 authorizes the Planning Commission to grant a conditional use permit upon making certain findings. 1. Will the proposed use provide a service or facility which will contribute to the general well being of the neighborhood or community? The proposed modifications to conditional use permit to allow a cover charge, serving draft beer, bottle service, advertising or signs indicating the availability of alcohol, usage of the basement and to allow the hours of operation from 11:00 a.m. to 2:00 a.m. will continue to provide an ancillary service and amenity to the Artists Village and thereby benefit the community. The provision of a bar could create a negative impact to the surroundings. Modified conditions have been placed on the Alcoholic Beverage Control license that will mitigate potential impacts created by the use and ensure that the use will not negatively affect the surrounding community. 2. Will the proposed use under the circumstances of the particular case be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity? The approval of the modifications, noted in subsection1 above, to the conditional use permit will not be detrimental to persons residing or working in the area because the use, as conditioned, will not create negative or adverse impacts. The sale of alcoholic beverages will occur on the premises. Moreover, conditions are imposed to mitigate potential impacts to those in the vicinity. 3. Will the proposed use adversely affect the present economic stability or future economic development of properties surrounding the area? The "public premises" is a suitable and appropriate use within the downtown setting. The modification supported should increase the patronage within the Artists Village, thereby enhancing the viability of Resolution No. 2009-21 Page 3 75B-23 the business. Further, with the conditions imposed the use and site should enhance the success of the area building on the successful cultural and business climate of the surrounding properties in the area. 4. Will the proposed use comply with the regulations and conditions specified in Chapter 41 for such use? As conditioned, the proposed project will be in compliance with all applicable regulations and conditions imposed on a bar selling alcoholic beverages pursuant to Chapter 41 of the Santa Ana Municipal Code. 5. Will the proposed use adversely affect the General Plan or any specific plan of the City? The proposed modifications will not adversely affect the General Plan. Bars and ancillary uses such as alcoholic beverage control licenses are permitted within the Central Business-Artists Village (C3-A) zoning district and the District Center (DC) General Plan designation. The project will help to facilitate Goal 2.0 to "Promote land uses which enhance the City's economic and fiscal viability." The modifications supported will help to provide a service to complement other uses within the growing Artists Village. Further, Goal 4.0 of the Land Use Element, protect and enhance development sites and districts which are unique community assets that enhance the quality of life. An establishment that adds to the nightlife of the Artists Village promotes the unique makeup of the area with a mix of residences and commercial businesses. I. This project was reviewed in accordance with the Guidelines for the California Environmental Quality Act. The recommendation is exempt from further review pursuant to Section 15301. This Class 1 exemption applies to alterations to an existing operation or facility with negligible expansion. Categorical Exemption Environmental Review No. 2008-39 will be filed for this project. Section 2. The Planning Commission, after conducting the public hearing and being fully advised, hereby: A. grants Appeal No. 2009-06 as to the deletion of Condition No. 24 to Conditional Use Permit No. 2004-21 and Variance No. 2004-09, and denies the remainder of Appeal No. 2009-06 as moot. B. approves in part and denies in part the request to modify Conditional Use Permit No. 2004-21 as conditioned in Exhibit A hereto (which shows additions as underlined text and deletions as strikeout text), which is incorporated herein by this reference; and Resolution No. 2009-21 Page 4 75B-24 C. approves in part and denies in part the request to modify Variance No. 2004-09 as conditioned in Exhibit B hereto (which shows additions as underlined text and deletions as strikeout text), which is incorporated herein by this reference. These decisions are based upon the evidence submitted at the above said hearing, which includes but is not limited to: the Requests for Planning Commission Action dated December 14, 2009 and exhibits attached thereto; and the public testimony, all of which are incorporated herein by this reference. ADOPTED this 14t" day of December, 2009 by the following vote: AYES: Commissioners: Alderete, Betancourt, Gartner, Leo, Turner, Yrarrazaval (6) NOES: Commissioners: None (0) ABSENT: Commissioners: None (0) ABSTENTIONS: Commissioners: None (0) Christopher Leo Chairman APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Benjamin Kaufman Chief Assistant City Attorney CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Martha Ramirez, Planning Commission Secretary, do hereby attest to and certify the attached Resolution No. 2009-21 to be the original resolution adopted by the Planning Commission of the City of Santa Ana on December 14, 2009. Date: Planning Commission Secretary City of Santa Ana Resolution No. 2009-21 Page 5 75B-25 CONDITIONS TO CONDITIONAL USE PERMIT N0.2004-21 Should modification to Conditional Use Permit No. 2004-21 be approved, the project shall comply with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. In addition, it shall meet the following conditions: The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of the conditional use permit. Should modification to Conditional Use Permit No. 2004-21 be approved, the project shall comply with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. In addition, it shall meet the following conditions: The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of the conditional use permit. A. Planning Division 1. Any amendment to this conditional use permit must be submitted to the Planning Division and Police Department for review. 2. The project shall remain in compliance with Site Plan Review (Development Project No. 04-049). 3. A C3 parking waiver shall be applied for and approved prior to issuance of certificate of occupancy. 4. Prior to issuance of a certificate of occupancy for the basement space all code requirements, including but not limited to Building and Fire items shall be in compliance. B. Police Department 1. Sales, service and consumption of alcoholic beverages shall be permitted only between the hours of 4:98-p-r~- 11:00 a.m. and 2:00 a.m., daily. EXHIBIT A Resolution No. 2009-21 Page 6 75B-26 2. The sale of alcoholic beverages for consumption off the premises is strictly prohibited. 3. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee(s). 4. The applicant shall post and maintain a professional quality sign on the east elevation of the premises prohibiting the consumption of alcoholic beverages outside the licensed premises. 5. No sales or consumption of alcoholic beverages shall take place outside. 6' Tho polo of ~ra{~ hoer ie nrnhihi+ort The sales of beer and malt beverages in pitchers or containers more than 16 ounces in size are prohibited. 7. ~hn ~~~~no~nf~hG ~h~c r\ i~ r~rnhihitcg. 8. An alcohol-pouring device used to control portions must be attached to any champagne or distilled spirits when sold by the bottle. 9. Prior to Planning Commission approval, the operator shall submit for review and approval to both the Police Department and Planning Division a Security and Operations Plan outlining the services provided, employees and duties/titles, schedule of events/entertainment planned, outline the method to provide service at the tables and basement level, as well as any other information outlining the security and operations of the establishment. This plan once approved by the Police Department and Planning Division shall become a condition of approval for this discretionary action. Any modification to this Security and Operations plan must be pre-approved by both the Police Department and Planning Division. The security plan shall contain the following_ a. The rear exit door at the basement level shall be kept closed at all times during the operation of the premises except in cases of emergency and to permit deliveries. The door shall be equipped with an audible alarm that is activated upon the opening of the door. Resolution No. 2009-21 Page 7 75B-27 b. On Friday and Saturday evenings between the hours of 9:00 p.m. and 2:30 a.m., the licensee(s) shall provide a minimum of one (1) uniformed, licensed security guard for every 100 persons in attendance per event, to maintain order therein and prevent any activity, which would interfere with the quiet enjoyment of their property by nearby residents. c. The Chief of Police or his designate shall first approve every security guard employed by you. If there is a marked or noticeable increase in the number of police-related incidents on or near the premises, as such increase may be determined by the Chief of Police, the permittee shall increase the number of uniformed, licensed security guards to a total number of guards as determined by the Chief of Police. d. The licensee(s) or an employee of the licensee(s) will be present to monitor alcohol consumption in the basement area at all times that alcoholic beverages are being served or consumed. e. The establishment shall be responsible for submitting to the Police Department a schedule of events or theme nights taking place on the premises on a monthly basis. The Police Department is to receive a copy of the schedule no later than the first day of each month. f. The licensee shall provide a Closed Circuit Television System approved by the Police Department and capable of viewing and recording events inside the premises (basement area), the front of the restaurant and rear alley with a resolution which will clearly identify individuals for later identification. Camera system components shall include: i. A minimum of one color camera at each specified location. ii. A color camera recorder or digital system capable of recording events on all cameras simultaneously. iii. A tape or disc storage library of recorded cameras kept for a minimum of 60 days. Resolution No. 2009-21 Page 8 75B-28 iv. If video tape is used, tapes cannot be taped over more than six times. v. An audio recording component that will record sounds occurring at the specified location. 10. No employee or agent shall solicit or accept any alcoholic or non-alcoholic beverage from any customer while in the premises. 11. Entertainment provided shall not be audible beyond 10 feet from the exterior of the premises in any direction. 12. Entertainment provided shall be limited to a maximum of five musicians. 13. The applicant, at all times, shall adhere to Chapter 11 regarding dancing as it may be amended from time to time. Tk~ chill h° n° rl~n^ir,n ~Iln~ei°rl nn +h° r.r°mie°o 14. There shall be no exterior advertising of any kind or type, i^^',,,~i^^ °~"°r+icir,ir h°~~~ except as provided for in the Code, or the Alcohol Beverage Control statue and regulations. 15. The applicant(s) shall be responsible for maintaining free of litter the area adjacent to the premises over which they have control. 16. There shall be no coin operated games or video machines maintained upon the premises at any time. 17. There shall be no pool/billiard tables maintained upon the premises at any time. 18. There shall be no public telephones located on the exterior of the premises. Interior phones shall be restricted to outgoing calls only. 19. Any graffiti painted or marked upon the premises or on any adjacent area under control of the licensee(s) shall be removed or painted over within 24 hours of being applied. 20. The petitioner(s) shall post a placard on the exterior east elevation of the premises prohibiting loitering, pursuant to California Penal Code ("CPC") section 602. 21. It shall be the petitioner(s) responsibility to ensure that CPC section 602 is complied with at all times that the premises are in operation. 22. , ~h~ll +h°ro h~ w r ~°.M~ sir°m°n+ +n N' ~rnhr+~° minims ~m n~ ~mh°r of rlrinL~. The applicant Resolution No. 2009-21 Page 9 75B-29 shall not share any profits, or pay any percentage or commission to a promoter or any other person, based upon monies collected as a door charge, cover charge, donation or any other form of admission charge, including minimum drink orders or the sale of drinks. 23. If the City ceases providing security guards in the designated parking structure, the applicant shall provide one (1) state licensed uniformed security guard from 6:00 p.m. until one (1) hour after closing on Friday, Saturday and Sunday, who shall maintain order therein and prevent any activity which would interfere with the quiet enjoyment of their property by nearby residents. cvnonf in o~ r+f cmornonn~i ~nrl r~ormi~ rJoli~iorioc 25. All employees must attend Responsible Beverage Server (RBS) training provided by the State Department of Alcoholic Beverage Control. 26. The designated manager of the premises must be qualified by the State Department of Alcoholic Beverage Control. 27. Neither the licensee, nor any person or entity operating the premises with the permission of the licensee, shall violate the City's adult entertainment ordinance contained in SAMC section 12-1 and 12-2. 28. The premises shall not be operated as an adult entertainment business as such term defined in SAMC section 41-1701.6. 29. The conditional use permit shall be reviewed at 90 days, six months, at one year and then annually thereafter by the Police Department for any modification to the conditions of approval. 30. Existing suite and alley lighting must conform to the provisions of Chapter 8, Article II, Division 3 of the Santa Ana Municipal Code (Building Security Ordinance). These code conditions will require that the existing project's lighting door/window locking devises and addressing be upgraded to current code standards. Lighting standards cannot be located in required landscape planters. 31. Cash register must be visible from the street at all times and shall not be obstructed at any time by temporary or permanent signage. 32. Window displays must be kept to a minimum for maximum visibility and shall not exceed 25 percent of window coverage. 33. Window displays and racks must be kept to a maximum height of three feet including merchandise. Resolution No. 2009-21 Page 10 75B-30 34. Install a silent armed robbery alarm. 35. The rear exit door at the basement level shall be kept closed at all times during the operation of the premises except in cases of emergency and to permit deliveries. Resolution No. 2009-21 Page 11 75B-31 CONDITIONS TO VARIANCE N0.2004-09 Should modification to Variance No. 2004-09 be approved, the project shall comply with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. In addition, it shall meet the following conditions: The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of the conditional use permit. A. Planning Division 1. Any amendment to this conditional use permit must be submitted to the Planning Division and Police Department for review. 2. The project shall remain in compliance with Site Plan Review (Development Project No. 04-049). 3. A C3 parking waiver shall be applied for and approved prior to issuance of certificate of occupancy. 4. Prior to issuance of a certificate of occupancy for the basement space, all code requirements, including but not limited to Building and Fire items, shall be in compliance. B. Police Department 1. Sales, service and consumption of alcoholic beverages shall be permitted only between the hours of 4~A-p-~+ 11:00 a.m. and 2:00 a.m., daily. EXHIBIT B Resolution No. 2009-21 Page 12 75B-32 2. The sale of alcoholic beverages for consumption off the premises is strictly prohibited. 3. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee(s). 4. The applicant shall post and maintain a professional quality sign on the east elevation of the premises prohibiting the consumption of alcoholic beverages outside the licensed premises. 5. No sales or consumption of alcoholic beverages shall take place outside. 6` Tho c~to of rlr~fF hoer ie r.rnhihi+o.~l, The sales of beer and malt beverages in pitchers or containers more than 16 ounces in size are prohibited. 7 ~~o o~lo nr eoniino of hoer nn 4on /nr rlr~~~nhi hoor\ icy r~rnhihi+orl 8. An alcohol-pouring device used to control portions must be attached to any champagne or distilled spirits when sold by the bottle. 9. Prior to Planning Commission approval, the operator shall submit for review and approval to both the Police Department and Planning Division a Security and Operations Plan outlining the services provided, employees and duties/titles, schedule of events/entertainment planned, outline the method to provide service at the tables and basement level, as well as any other information outlining the security and operations of the establishment. This plan once approved by the Police Department and Planning Division shall become a condition of approval for this discretionary action. Any modification to this Security and Operations plan must be pre-approved by both the Police Department and Planning Division. The security plan shall contain the following: a. The rear exit door at the basement level shall be kept closed at all times during the operation of the premises except in cases of emergency and to permit deliveries. The door shall be equipped with an audible alarm that is activated upon the opening of the door. Resolution No. 2009-21 Page 13 75B-33 b. On Friday and Saturday evenings between the hours of 9:00 p.m. and 2:30 a.m., the licensee(s) shall provide a minimum of one (1) uniformed, licensed security guard for every 100 persons in attendance per event, to maintain order therein and prevent any activity, which would interfere with the quiet enjoyment of their property by nearby residents. c. The Chief of Police or his designate shall first approve every security guard employed by you. If there is a marked or noticeable increase in the number of police-related incidents on or near the premises, as such increase may be determined by the Chief of Police, the permittee shall increase the number of uniformed, licensed security Guards to a total number of guards as determined by the Chief of Police. d. The licensee(s) or an employee of the licensee(s) will be present to monitor alcohol consumption in the basement area at all times that alcoholic beverages are being served or consumed. e. The establishment shall be responsible for submitting to the Police Department a schedule of events or theme nights taking place on the premises on a monthly basis. The Police Department is to receive a copy of the schedule no later than the first day of each month. f. The licensee shall provide a Closed Circuit Television System approved by the Police Department and capable of viewing and recording events inside the premises (basement area), the front of the restaurant and rear alley with a resolution which will clearly identify individuals for later identification. Camera system components shall include: i. A minimum of one color camera at each specified location. ii. A color camera recorder or digital system capable of recording events on all cameras simultaneously. iii. A tape or disc storage library of recorded cameras kept for a minimum of 60 days. Resolution No. 2009-21 Page 14 75B-34 iv. If video tape is used, tapes cannot be taped over more than six times. v. An audio recording component that will record sounds occurring at the specified location. 10. No employee or agent shall solicit or accept any alcoholic or non-alcoholic beverage from any customer while in the premises. 11. Entertainment provided shall not be audible beyond 10 feet from the exterior of the premises in any direction. 12. Entertainment provided shall be limited to a maximum of five musicians. 13. The applicant, at all times, shall adhere to Chapter 11 regarding dancing as it may be amended from time to time. T"ek~,",°" ~'°~^i^^ r.lln~ei°.-1 nn +h° r~r°mie°o 14. There shall be no exterior advertising of any kind or type,-ice r+'J~~°r~icinn fir°nt°rJ fn ~h° °v~°rinr frnm iii+hin r~rnrv~n~inn nr inrlin~~inn 4h° ........y r.............~ . except as provided for in the Code, or the Alcohol Beverage Control statue and regulations. 15. The applicant(s) shall be responsible for maintaining free of litter the area adjacent to the premises over which they have control. 16. There shall be no coin operated games or video machines maintained upon the premises at any time. 17. There shall be no pool/billiard tables maintained upon the premises at any time. 18. There shall be no public telephones located on the exterior of the premises. Interior phones shall be restricted to outgoing calls only. 19. Any graffiti painted or marked upon the premises or on any adjacent area under control of the licensee(s) shall be removed or painted over within 24 hours of being applied. 20. The petitioner(s) shall post a placard on the exterior east elevation of the premises prohibiting loitering, pursuant to California Penal Code ("CPC") section 602. Resolution No. 2009-21 Page 15 of 17 75B-35 21. It shall be the petitioner(s) responsibility to ensure that CPC section 602 is complied with at all times that the premises are in operation. 22. ~Vt1~zrvnTE.~. ~"Ilztrr-RVC-r n~~-°~rQd~vivrro~a~~°,c-a--cvv r nhnrnc nr rlnn Sinn nnr h~+ll ~horo ho ron~ ~iromonF +n n~ ~rnh~co ~ minims ~m n~ imh of-desks. The applicant shall not share any profits, or pay any percentage or commission to a promoter or any other person, based upon monies collected as adore charge, cover charge, donation or any other form of admission charge, including minimum drink orders or the sale of drinks. 23. If the City ceases providing security guards in the designated parking structure, the applicant shall provide one (1) state licensed uniformed security guard from 6:00 p.m. until one (1) hour after closing on Friday, Saturday and Sunday, who shall maintain order therein and prevent any activity which would interfere with the quiet enjoyment of their property by nearby residents. '~q,~~~T ~+II ho Lon+ n~~.+~ ~+~II~#imT~ ~rinn Fho nnor~4inn of +h nromicoc ovnon~ in noc~oo of omornonrv onrl fn normi4 r~lolivorio r...~...... 25. All employees must attend Responsible Beverage Server (RBS) training provided by the State Department of Alcoholic Beverage Control. 26. The designated manager of the premises must be qualified by the State Department of Alcoholic Beverage Control. 27. Neither the licensee, nor any person or entity operating the premises with the permission of the licensee, shall violate the City's adult entertainment ordinance contained in SAMC section 12-1 and 12-2. 28. The premises shall not be operated as an adult entertainment business as such term defined in SAMC section 41-1701.6. 29. The conditional use permit shall be reviewed at 90 days, six months, at one year and then annually thereafter by the Police Department for any modification to the conditions of approval. 30. Existing suite and alley lighting must conform to the provisions of Chapter 8, Article II, Division 3 of the Santa Ana Municipal Code (Building Security Ordinance). These code conditions will require that the existing project's lighting, door/window locking devises and addressing be upgraded to current code standards. Lighting standards cannot be located in required landscape planters. Resolution No. 2009-21 Page 16 of 17 ~75B-36 31. Cash register must be visible from the street at all times and shall not be obstructed at any time by temporary or permanent signage. 32. Window displays must be kept to a minimum for maximum visibility and shall not exceed 25 percent of window coverage. 33. Window displays and racks must be kept to a maximum height of three feet including merchandise. 34. Install a silent armed robbery alarm. 35. The rear exit door at the basement level shall be kept closed at all times during the operation of the premises except in cases of emergency and to permit deliveries. Resolution No. 2009-21 Page 17 of 17 75B-37 75B-38 bk:1 /25/10 RESOLUTION NO. 2010- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA GRANTING MODIFICATIONS TO VARIANCE NO. 2004-09 FOR A TYPE 48 "PUBLIC PREMISES" ALCOHOLIC BEVERAGE CONTROL LICENSE FOR THE PROPERTY LOCATED AT 215 NORTH BROADWAY BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting approval of modifications to Conditional Use Permit No. 2004- 21 for a Type 48 (on-site general "public premises") Alcoholic Beverage Control license and Variance No. 2004-09 for the property located at 215 North Broadway, currently operated as the Proof Bar. B. The request to modify Conditional Use Permit No. 2004-21 came before the Zoning Administrator of the City of Santa Ana for a duly noticed public hearing on November 4, 2009. C. The changes requested include the hours of operation, outdoor sale and consumption of alcohol, allowing the rear door to be kept open, sale of draft beer, sale of "hard" alcohol by the bottle, dancing, the allowance of a cover charge and the expansion of the bar into the basement. Following a public hearing, the Zoning Administrator granted the application in part and denied it in part. Appeal No. 2009-06 to this Planning Commission was thereafter filed by the applicant. D. Santa Ana Municipal Code Section 41-196 requires a conditional use permit for the sale of alcoholic beverages for on-site consumption. E. The applicant's appeal, together with the request to modify Conditional Use Permit No. 2004-21 and Variance No. 2004-09, came before the Planning Commission of the City of Santa Ana for a duly noticed public hearing on December 14, 2009. F. During the pendency of its application for modifications, applicant modified or eliminated three (3) requests. Applicant and City staff agreed to extended hours of operation which were less than those initially requested by applicant. Applicant formally withdrew its request for the Planning Commission to permit patron dancing upon staffs proposed revision (which the Planning Commission approves) of Condition No. 13 to the CUP and Variance. Finally, applicant withdrew any request to construct fixtures in the outdoor space behind its tenant space and/or to operate this outdoor space as a patio. Resolution No. 2010-xxx Page 1 75B-39 G. The Planning Commission, by a 6-0 vote on December 14, 2009, approved the applications and granted the appeal, as modified. H. The City Council, by a 7-0 vote at its regular meeting of January 4, 2010, subsequently ordered the applicants' request for a modification to Variance No. 2009-04 to be set for a noticed public hearing before the City Council pursuant to Santa Ana Municipal Code Section 41-642. I. Santa Ana Municipal Code Section 41-638 authorizes the City Council to grant a variance upon making certain findings of approval. 1. That because of special circumstances applicable to the subject property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance is found to deprive the subject property of privileges not otherwise at variance with the intent and purpose of provisions of this Chapter. The proposed modifications to Variance No. 2004-09 to allow a cover charge, serving draft beer, bottle service, advertising or signs indicating the availability of alcohol, usage of the basement and to allow the hours of operation from 11:00 a.m. to 2:00 a.m. will continue to provide an ancillary service and amenity to the Artists Village and thereby benefit the community. The modifications to the variance help to continue allow the bar within the Artists Village to provide an additional nighttime amenity to the area. The condition modifications could create a negative impact to the surroundings. Additional conditions have been placed on Variance No. 2004-09 that will mitigate potential impacts created by the use and ensure that the use will not negatively affect the surrounding community. 2. That the granting of a variance is necessary for the preservation and enjoyment of one or more substantial property rights. Approval of the condition modifications allows the applicants to operate a bar within the Artists Village of the downtown. The modifications will add to the growing Artists Village active lifestyle; support evening activities and a variety of dining establishments. Downtown should be the place to go to experience the full character of a community, and the bar will contribute to a vibrant evening experience. 3. That the granting of a variance will not be materially detrimental to the public welfare or injurious to surrounding property. The approval of the variance will not be detrimental to persons residing or working in the area because the use, as conditioned, will not create negative or adverse impacts. The conditions imposed on the variance will mitigate any potential impacts that might occur from the proposed alcoholic beverage sales and entertainment. The additional business Resolution No. 2010-xxx Page 2 75B-40 will assist in promoting the economic viability and enhance the livability for this area of the downtown. As conditioned, the proposed project will be in compliance with all applicable regulations and conditions imposed on a bar selling alcoholic beverages pursuant to Chapter 41 of the Santa Ana Municipal Code. 4. That the granting of a variance will not adversely affect the General Plan of the City. The proposed modifications will not adversely affect the General Plan. Bars and ancillary uses such as alcoholic beverage control licenses are permitted within the Central Business-Artists Village (C3-A) zoning district and the District Center (DC) General Plan designation. The project will help to facilitate Goal 2.0 to "Promote land uses which enhance the City's economic and fiscal viability." The modifications supported will help to provide a service to complement other uses within the growing Artists Village. Further, Goal 4.0 of the Land Use Element, protect and enhance development sites and districts which are unique community assets that enhance the quality of life. An establishment that adds to the nightlife of the Artists Village promotes the unique makeup of the area with a mix of residences and commercial businesses. J. This project was reviewed in accordance with the Guidelines for the California Environmental Quality Act. The recommendation is exempt from further review pursuant to Section 15301. This Class 1 exemption applies to alterations to an existing operation or facility with negligible expansion. Categorical Exemption Environmental Review No. 2008-39 will be filed for this project. Section 2. The City Council, after conducting the public hearing and being fully advised, hereby approves in part and denies in part the request to modify Variance No. 2004-09 as conditioned in Exhibit A hereto (which shows additions as underlined text and deletions as strikeout text), which is incorporated herein by this reference. These decisions are based upon the evidence submitted at the above said hearing, which includes but is not limited to: the Requests for Council Action dated February 1, 2010 and exhibits attached thereto; and the public testimony, all of which are incorporated herein by this reference. Section 3. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of , 2010. Miguel A. Pulido Mayor Resolution No. 2010-xxx Page 3 75B-41 APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Benjamin Kaufman Chief Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2010-XXX to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana Resolution No. 2010-xxx Page 4 75B-42 CONDITIONS TO VARIANCE N0.2004-09 Should modification to Variance No. 2004-09 be approved, the project shall comply with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. In addition, it shall meet the following conditions: The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of the conditional use permit. A. Planning Division 1. Any amendment to this conditional use permit must be submitted to the Planning Division and Police Department for review. 2. The project shall remain in compliance with Site Plan Review (Development Project No. 04-049). 3. A C3 parking waiver shall be applied for and approved prior to issuance of certificate of occupancy. 4. Prior to issuance of a certificate of occupancy for the basement space, all code requirements, including but not limited to Building and Fire items, shall be in compliance. B. Police Department 1. Sales, service and consumption of alcoholic beverages shall be permitted only between the hours of 4A8- 11:00 a.m. and 2:00 a.m., daily. EXHIBIT A Resolution No. 2010-xxx Page 5 75B-43 2. The sale of alcoholic beverages for consumption off the premises is strictly prohibited. 3. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee(s). 4. The applicant shall post and maintain a professional quality sign on the east elevation of the premises prohibiting the consumption of alcoholic beverages outside the licensed premises. 5. No sales or consumption of alcoholic beverages shall take place outside. 6 Tho ~~le of rlrnfF hoer ie nrnhihi+e,~ The sales of beer and malt beverages in pitchers or containers more than 16 ounces in size are prohibited. 7 Tho c~lc nr ccniino of hoer nn ~~n /nr rlr~~~nh~ hecr\ i nrnhihi+ei-1 8. An alcohol-pouring device used to control portions must be attached to any champagne or distilled spirits when sold by the bottle. 9. Prior to Planning Commission approval, the operator shall submit for review and approval to both the Police Department and Planning Division a Security and Operations Plan outlining the services provided, employees and duties/titles, schedule of events/entertainment planned, outline the method to provide service at the tables and basement level, as well as any other information outlining the security and operations of the establishment. This plan once approved by the Police Department and Planning Division shall become a condition of approval for this discretionary action. Any modification to this Security and Operations plan must be pre-approved by both the Police Department and Planning Division. The security plan shall contain the following: a. The rear exit door at the basement level shall be kept closed at all times during the operation of the premises except in cases of emergency and to permit deliveries. The door shall be equipped with an audible alarm that is activated upon the opening of the door. Resolution No. 2010-xxx Page 6 75B-44 b. On Friday and Saturday evenings between the hours of 9:00 p.m. and 2:30 a.m. the licensee(s) shall provide a minimum of one (1) uniformed, licensed security guard for every 100 persons in attendance per event, to maintain order therein and prevent any activity, which would interfere with the quiet enjoyment of their property by nearby residents. c. The Chief of Police or his designate shall first approve every security Guard employed by you. If there is a marked or noticeable increase in the number of police-related incidents on or near the premises, as such increase may be determined by the Chief of Police, the permittee shall increase the number of uniformed licensed security guards to a total number of guards as determined by the Chief of Police. d. The licensee(s) or an employee of the licensee(s) will be present to monitor alcohol consumption in the basement area at all times that alcoholic beverages are being served or consumed. e. The establishment shall be responsible for submitting to the Police Department a schedule of events or theme nights taking place on the premises on a monthly basis. The Police Department is to receive a copy of the schedule no later than the first day of each month. f. The licensee shall provide a Closed Circuit Television System approved by the Police Department and capable of viewing and recording events inside the premises (basement area), the front of the restaurant and rear alley with a resolution which will clearly identify individuals for later identification. Camera system components shall include: i. A minimum of one color camera at each specified location. ii. A color camera recorder or digital system capable of recording events on all cameras simultaneously. iii. A tape or disc storage library of recorded cameras kept for a minimum of 60 days. Resolution No. 2010-xxx Page 7 75B-45 iv. If video tape is used tapes cannot be taped over more than six times. v. An audio recording component that will record sounds occurring at the specified location. 10. No employee or agent shall solicit or accept any alcoholic or non-alcoholic beverage from any customer while in the premises. 11. Entertainment provided shall not be audible beyond 10 feet from the exterior of the premises in any direction. 12. Entertainment provided shall be limited to a maximum of five musicians. 13. The applicant at all times, shall adhere to Chapter 11 regarding dancing as it may be amended from time to time. TT,"~ ^'°^^i^^ ~+Iln~~i°r! ^n r~r°mi~°c~ 14. There shall be no exterior advertising of any kind or type,~~ ..r~~i°r4ieinn rJir°n~°rl fn +h° °v4°rinr frnm ~~ii+hin nrmm~finn nr inrlin~~inK~r~ ~9 ~hG . except as provided for in the Code, or the Alcohol Beverage Control statue and regulations. 15. The applicant(s) shall be responsible for maintaining free of litter the area adjacent to the premises over which they have control. 16. There shall be no coin operated games or video machines maintained upon the premises at any time. 17. There shall be no pool/billiard tables maintained upon the premises at any time. 18. There shall be no public telephones located on the exterior of the premises. Interior phones shall be restricted to outgoing calls only. 19. Any graffiti painted or marked upon the premises or on any adjacent area under control of the licensee(s) shall be removed or painted over within 24 hours of being applied. 20. The petitioner(s) shall post a placard on the exterior east elevation of the premises prohibiting loitering, pursuant to California Penal Code ("CPC") section 602. Resolution No. 2010- Page 8 of 10 75B-46 21. It shall be the petitioner(s) responsibility to ensure that CPC section 602 is complied with at all times that the premises are in operation. 22 .i-°ciTC~~n'e~~~•• I~~rc~'v~~~an-Qa~.rl~~vr -6~a~ ° nn~ i° r n h ~ rn ° n r e rlnn Sinn nnr h~+ll +h°r° h° r°n~ ~ir°m°n4 fn n~ irnh°~° ~ minims ~m n~ ~w'+h°r Wis. The applicant shall not share any profits, or pay any percentage or commission to a promoter or any other person, based upon monies collected as adore charge, cover charge, donation or any other form of admission charge, including minimum drink orders or the sale of drinks. 23. If the City ceases providing security guards in the designated parking structure, the applicant shall provide one (1) state licensed uniformed security guard from 6:00 p.m. until one (1) hour after closing on Friday, Saturday and Sunday, who shall maintain order therein and prevent any activity which would interfere with the quiet enjoyment of their property by nearby residents. ~q ~h° r°~+r rlnnr chill h° U°n+ nlnc°rl ^II +im°c r1~ irinn +h° nn°r~+inn of ~R~ ...ter,. -r-.~ nr°mi °vn°n~ in n•+e°~ of °m°rn°nn~i ~nr? fn n°rmi+ ~°liu 25. All employees must attend Responsible Beverage Server (RBS) training provided by the State Department of Alcoholic Beverage Control. 26. The designated manager of the premises must be qualified by the State Department of Alcoholic Beverage Control. 27. Neither the licensee, nor any person or entity operating the premises with the permission of the licensee, shall violate the City's adult entertainment ordinance contained in SAMC section 12-1 and 12-2. 28. The premises shall not be operated as an adult entertainment business as such term defined in SAMC section 41-1701.6. 29. The conditional use permit shall be reviewed at 90 days, six months, at one year and then annually thereafter by the Police Department for any modification to the conditions of approval. 30. Existing suite and alley lighting must conform to the provisions of Chapter 8, Article II, Division 3 of the Santa Ana Municipal Code (Building Security Ordinance). These code conditions will require that the existing project's lighting, door/window locking devises and addressing be upgraded to current code standards. Lighting standards cannot be located in required landscape planters. Resolution No. 2010- Page 9 of 10 75B-47 31. Cash register must be visible from the street at all times and shall not be obstructed at any time by temporary or permanent signage. 32. Window displays must be kept to a minimum for maximum visibility and shall not exceed 25 percent of window coverage. 33. Window displays and racks must be kept to a maximum height of three feet including merchandise. 34. Install a silent armed robbery alarm. 35. The rear exit door at the basement level shall be kept closed at all times during the operation of the premises except in cases of emergency and to permit deliveries. Resolution No. 2010- Page 10 of 10 75B-48