THE PLANNING COMMISSION MEETING
OF THE CITY OF HERMOSA BEACH HELD ON
FEBRUARY 15, 2005, 7:00 P.M.,
AT THE CITY HALL COUNCIL CHAMBERS
Report on Aloha Sharkeez (52 Pier Avenue) and Dragon Bar (22 Pier Avenue)
Conditional Use Permits and Code Compliance.(PDF File).
Recommended Action: To direct staff to 1) Continue code enforcement
inspections for three months and report back to the Planning Commission on
Conditional Use Permit (CUP) and code compliance for the businesses. 2)
Schedule CUP revocation/modification hearings if the businesses continue to
operate in violation of their CUP or otherwise violate the Municipal Code.
Blumenfeld stated that on January 18, 2005, the Planning Commission
conducted its annual review of conditional use permits (CUP’s) for various
Downtown businesses on the Pier Plaza area; as reported at that time, there
remain problems with respect to six of the businesses in the area; stated
that over the last year, staff has attempted to cooperatively work with
these problem businesses to obtain conformance with their CUP’s or the
requirements of the Municipal Code and/or encroachment regulations; and
noted that in some instances, there has been some compliance.
that there are still six businesses that are not in full compliance with
their CUP or the Municipal Code. He stated that the problems generally
pertain to doors and windows not remaining closed during live entertainment
or loud amplified music; noted that the outdoor patios have not been used
for dining, but rather for lounge areas; that people have been standing in
required aisles; that loud music and/or televisions have been installed in
the encroachment areas; and mentioned that these problems were uniform for
the following six businesses: Aloha Sharkeez, Sangria, Patrick Malloys,
Lighthouse, Fat Face Fenner’s Fishack, and Dragon Bar. He noted that this
evening, based upon the Commission’s direction from the January 18th
meeting, the Commission would informally review the CUP compliance
specifically for Sharkeez and Dragon.
Blumenfeld stated that with respect to Sharkeez, staff conducted code
inspections and CUP inspections beginning August 13, 2004, and concluded
those inspections December 31, 2004; and found violations including:
violations were reoccurring, and also the same violations with respect to
leaving doors and windows open during live entertainment, with extremely
loud amplified music in the outdoor patio; and advised that the noise was
clearly audible from outside the restaurant.
He advised that
there were also violations of the encroachment regulations; that during
those same dates, staff observed the outdoor dining patios were not being
used primarily for dining, as required under the encroachment permit
regulations; that customers were standing in required aisles in the patios;
and that televisions were installed and operating in the encroachment areas,
which is in violation of the encroachment permit guidelines.
advised that these same problems were also observed at Dragon, although in
Dragon’s case, there were also violations of the business CUP; and that
these same problems were observed during the same dates: August 13, 2004,
August 28, 2004, October 2, 2004, November 25, 2004 to November 28, 2004,
December 1, 3, 12, 2004, and December 20, 31, 2004. He pointed out that the
purpose for this evening’s hearing is to provide an informal opportunity for
the Commission to take public testimony from the businesses to try and
understand what they are doing to comply with the requirements and to give
the Commission an opportunity to explain its position on these violations.
Blumenfeld stated that it is staff’s recommendation to continue the code
enforcement inspections over the next three months, concurrent with the
Commission’s informal reviews with each of the six businesses; that during
this three-month period, staff will proceed with ticketing and citations for
violations of the relevant codes; and advised that the ticketing will be
used as a means to provide background should the Commission decide to go
forward with revocation or modification process for each of these six
businesses if they continue to fail in their conformance.
Blumenfeld advised that the Commission also received a draft memorandum
which is based on the Commission’s input that will be submitted to City
Council should the Commission so decide by Minute Order. He mentioned that
the memorandum basically recounts the actions of the Commission over the
past few months with respect to review of the CUP’s, the problems that the
Commission has observed, those that staff has identified, and the proposed
solution that was recognized by the Commission, which was to ticket those
violating businesses in order to provide a record and try to get more
immediate conformance relative to correcting the violations; and for staff
to proceed with code enforcement for the outdoor patio area, requesting that
the Director of Public Works be directed by City Council to issue violation
notices for encroachment permit violations and requiring correction of those
violations or the business to be subject to revocation of their encroachment
permit. Director Blumenfeld advised that both business owners were notified
of this evening’s informal hearing.
Commissioner Hoffman’s inquiry regarding who would be issuing the citations,
Director Blumenfeld stated that it would either be done by a code
enforcement officer or a member of the Police Department. Director
Blumenfeld added that the City Manager has also indicated an interest in
hiring temporary/part-time staff to assist in this effort because of the
late hours and limited staffing.
Blumenfeld noted for Commissioner Allen that a business has the right to
dispute a ticket in a court of law, that it would be considered in court
because the City does not have an administrative penalties ordinance where
it can consider these matters with an administrator; he added that the
evidence would be presented and that citations may be issued repeatedly; but
he explained that the intent of the ticketing is not to create a great
financial penalty, but to build a record through the citation process
leading to modification or revocation of the business if it refuses to
comply with the requirements.
Koenig questioned if the tickets will be the same whether given by code
enforcement or the Police Department.
Director Blumenfeld explained that it is the same ticket, the same process;
and explained that the code enforcement officer is trained in issuance of
citations and warrants and would follow the same procedure.
Perrotti questioned what violations a code enforcement officer could cite.
Blumenfeld noted for Chairman Perrotti that the code enforcement officer
could work in concert with the Fire Department – noting that the Fire
Department is now conducting bi-monthly occupant load checks of the Downtown
businesses and that the Fire Department could address the occupant load
issues on a regular basis and issue citations, which it has done; and
advised that the code enforcement officer has authority established under
the Zoning Code to cite CUP’s infractions.
Koenig asked if staff has estimated how much the additional resources will
cost to implement this process and how frequent the inspections will be
Blumenfeld stated that staff has not estimated the cost, but noted that it
already has required a lot of staff time; advised that he and the code
enforcement officer spent at least two hours each time when they visited the
sites over the above-mentioned dates; stated that in addition, the Police
Department Foot Patrol also was involved – pointing out that they are
already out in the area and that he is not sure if that would be counted
separately, but noted that it does represent a City expense that is
occupying the police time, and he stated that if the route of ticketing is
followed, there will be more time invested with the ticketing process and
more time if the business owner contests the ticket, which may include City
He pointed out that the Commission and City Council have
expressed their intent to enforce CUP’s, and that the City recognizes code
enforcement as a necessary cost. Director Blumenfeld advised that no
schedule has been created, but that he anticipates staff will visit this
area on the same basis as was done last year and on the weekends, and added
that staff will collaborate with the Police and Fire Departments. He
reiterated that someone may be hired temporarily to help do this work over
the next three months.
Koenig questioned if there is any data on any visits with the code
enforcement officers when there weren’t any violations on these businesses.
Blumenfeld stated that the above-mentioned dates were those that staff went
out to inspect and that these businesses were in violation each time an
Commissioner Allen’s inquiry regarding a business owning up to its
responsibility/violation, Director Blumenfeld stated that page 7 of the
memorandum prepared by the Police Chief and himself lists all businesses
that have received communications in regard to the violations; advised that
staff specifically spoke with the business owners listed on that page and
that the specific violations for each business were addressed at that time;
and that the owners, without admitting guilt, just said they’ll have their
own management monitor the conditions and that they’ll cooperatively try to
solve the violations. He advised that staff has tried to cooperatively solve
these problems; that staff is not getting any results with these six
businesses and that, consequently, this matter is before the Commission this
Blumenfeld noted for Vice-Chairman Pizer that the proposed three citations
per calendar year before going to the Commission for CUP review was only a
suggestion and that the Commission can recommend another figure if it so
chooses. He expressed staff’s belief that three citations is enough to
demonstrate a record of noncompliance.
Russ Tingley stated that historically, there has been a concern with
over-crowding in the taverns, Pier Plaza area and along Hermosa Avenue;
advised that typically in the past, the Fire Department has responded by
complaint only; however, over the last four months, he stated that he
instituted a program at the Fire Department wherein each of the three shifts
responds with the engine companies on random weekends, Friday/Saturday
nights, to check for compliance.
He pointed out
that the Fire Department is not necessarily out to write a ticket, but that
they are more focused on life safety issues. He stated that there is a lot
of activity on the Plaza and a lot of over-crowding issues, and that they
have found crowded exits on patios and near the front doors of the
establishments; and advised that the doorkeepers have been asked to take
care of this issue and mentioned that the problem has subsided.
that it takes the entire engine company to handle an over-crowding complaint
because they have to use a number of counters; that they go inside an
establishment and check the occupant load number that’s properly posted and
then determine by head count how many people are inside. He stated that it
is time-consuming, takes a lot of effort to do so; and advised that if they
find the over-crowding is greater than 10 percent, they will write a
Tingley noted for Chairman Perrotti that separate counts are taken for the
outdoor dining areas as opposed to the interior area; and stated that these
inspections are creating a greater awareness of over-crowding issues.
Blumenfeld added that staff is observing people standing in required aisles
in outdoor patios, that clearly is a violation of the Building Code and
Encroachment regulation pertaining to outdoor dining.
Blumenfeld noted for Commissioner Koenig that staff has prepared a checklist
that the police can utilize during their inspections, that simplifies the
Eckert expressed his belief that having a part-time code enforcement officer
would be the best option, expressing his concern with using police resources
on a continual basis for this effort. He advised that the outdoor patios are
a major problem for the police; that those areas are typically used as
smoking lounges, with people entering and exiting all night long; and
pointed out that the doors constantly being opened and shut creates a noise
problem out on the Plaza. He stated that the noise is manageable if the
doors and windows remain closed.
Perrotti stated that he concurs that police resources should be limited in
this effort when possible.
owner of Aloha Sharkeez, passed out a memorandum from his lawyer which
answers many questions.
Perrotti highlighted one of the first statements in Mr. Newman’s memorandum,
“outdoor patio patrons are not required to be seated,” stating that as he
reads the Ordinance, the intention is for that to be an outside dining area,
stated that he has not violated his CUP. He stated that when they met with
staff and the police representatives on this matter, what was supposed to
happen from his understanding was that they were going to come around and
inspect; and that if there was a problem, they were going to be notified at
Mr. Newman stated that the violations that have been written up
are difficult to address because he was not aware of the violations. He
advised that the police do their walk-throughs almost every night and that
they always say everything is fine with the establishment. He noted that he
gets incident reports from his staff every day and that he has never
received one incident report that said they were over-crowded, that they
weren’t in compliance. He stated that at night, the sliding doors are always
closed; that the patron door opens and closes on a regular basis; and
expressed his belief that some of the statements are inaccurate.
to people leaving an establishment to smoke and then re-enter, he explained
that it isn’t realistic to control who comes in and out to smoke and
expressed his belief that this entire process needs to be handled
differently, believing this is too complicated. He expressed his concern
that the City is spot checking for CUP compliance and stated that all CUP’s
in the City should be checked for compliance, not just the promenade
businesses. He stated that he is willing to cooperate with the City, but
stated that he does not want the televisions taken out of the patio area
because they do not create a noise problem, noting that the televisions are
not on in the evenings.
He stated that
his patio capacity is set up so there is stand-up room and that 23
individuals can be seated. He stated that he wants to know about the
problems at the time they are happening and not to learn about the problems
a few months later, questioning how he can tell if the citing is accurate;
and suggested that a copy of the inspection report be given at the time of
inspection so they can see the violation for themselves at that time.
representing Dragon, stated that he has been involved with this project from
its inception; noted that he went before the Commission approximately a year
ago to amend the CUP; advised that they have gone out of their way to
cooperate; and concurred with Mr. Newman’s comment about being advised of a
violation at the time it is happening, not months later, allowing them a
chance to remedy that situation as quickly as possible. He advised that they
have an excellent relationship with the Police and Fire Departments; and
stated that each time Director Blumenfeld has called him and brought up a
situation, they have immediately responded. With regard to the meeting on
November 2, 2004, Mr. Kosgrove stated that he and another owner met with
Director Blumenfeld and a police representative to discuss noise issues; and
that they were told that the noise from this establishment was too loud on a
Sunday afternoon. He stated that there are televisions in the patio area,
but that they were not on that Sunday, but that staff has indicated this is
a violation of their CUP. He advised that initially, staff directed them to
cover the televisions; that there was to be a meeting to address the
situation of the televisions; advised that they complied with that
direction; and noted they were later told that until the issue is addressed,
they could uncover the television, but that there was to be no sound. Mr.
Kosgrove stated that he was under the impression this evening’s meeting was
to address that television situation; and he questioned if after the meeting
on November 2, 2004, there were any other complaints or violations
documented. He stated that neither he nor any of the owners were ever
contacted after that meeting.
Perrotti noted for Mr. Kosgrove that staff report indicates documented
violations after the November 2nd meeting.
stated that they believed they were in compliance after November 2, 2004;
and that they didn’t know there were more problems after that time. He noted
his desire to cooperate and reiterated that they need to be notified at the
time the violation is taking place. He noted some concern that a part-time,
temporary code enforcement officer might not be as familiar with the City’s
codes as need be.
Hoffman pointed out that Mr. Kosgrove’s CUP clearly states televisions are
stated that at the meeting on November 2, 2004, they we were told that
another meeting would be scheduled to address the use of televisions among
the various businesses.
Allen explained for Mr. Kosgrove that Sharkeez has an older permit which
allows for more leeway than his CUP; that Mr. Kosgrove’s CUP clearly
indicates that no televisions are permitted; and he questioned if Mr.
Kosgrove would commit to removing the televisions, demonstrating his
willingness to comply with his CUP.
Mattarocci, co-principal of Dragon, advised that the other owner, Jeff
Bland, is out of town on business; and explained that Mr. Bland is
responsible for overseeing the installation of the television.
Blumenfeld advised that he conveyed the information at the November 2, 2004,
meeting; and stated that staff discussed the following CUP violations: live
amplified music and non-live amplified music with doors and windows open,
outdoor televisions and speakers, patio over-crowding with customers
standing in the aisles and drinking. He stated that the owners agreed at
that point to have management monitor the conditions and comply. He
explained that he indicated there were questions from some of the other
business owners about their televisions; and advised that he informed
everyone that their encroachment permit did not include televisions on their
patios and to leave televisions off while staff reviewed the encroachment
permit issues at City Council. He advised that each business owner was told
to leave their televisions off for the time being; and that in the case of
Dragon this is a violation of the CUP.
Hoffman questioned if it is also a Building Code violation having
televisions outdoors as permanent fixtures.
Blumenfeld stated that the televisions and the hook-up for the televisions
require a weatherproof plug/receptacle, but that the actual connection for
the television or any appliance has to be hard-wired and has to be
weatherproofed as well. He stated that it is likely a Building Code
Mattarocci commented on the improvements at this establishment as a result
of his work with staff and the Police Department; and he addressed the
problems with keeping the noise contained when the doors are being opened
for patrons entering and exiting the establishment.
Perrotti suggested that the applicant work with staff on helping with the
noise problem when patrons are entering and exiting the establishment,
noting that other businesses are successful in their efforts to control
Blumenfeld pointed out that when he met with the business owners in November
2004, he made it very clear to all that staff would meet once for a site
visit to apprise the businesses of the issues observed from August until
November; that he was going to point out the problems that needed to be
corrected; and that he was not going to come back every week with reminders.
He stated that this effort was simply to point out the violations and that
it was up to the businesses to manage their businesses. He pointed out that
beyond that, staff is always available to help answer questions about their
establishments and assist with any issues of concern. He added that occupant
loads are based on seating, not standing in the patios.
Perrotti stated that he sees a lot of violations when visiting the Plaza
area and that he concurs with staff’s findings of these violations as a
result of his personal experience; and he expressed his belief the drafting
of the memorandum is a way of having the owners comply. He noted his support
to inspect this area for the next three months.
Hoffman commented on the Commission’s duty, stating that this body is not
supposed to enforce CUP’s; and expressed his belief that staff has properly
documented in this case that there has been a violation. He explained that
this process tonight sounded like a good idea when it was discussed at the
first meeting, to bring these issues back to an informal hearing, but stated
that now having gone through this informal hearing, he believes this is not
a constructive process. He stated that a citation is an objective means
where everybody understands how one contests the citation, everyone
understands the implications, with the onus of proof clearly laid out; and
stated that the citation, a formal mechanism, is the only way to enforce
Pizer stated that the memorandum prepared by staff would be sufficient for
the Planning Commission’s responsibility; and noted that City Council should
review this memorandum and provide direction.
Perrotti noted his concurrence to forward the memorandum to City Council;
and asked that staff continue to work with these two business owners and
respond to Mr. Newman’s letter.
Koenig addressed the importance of having proper data in making a
determination and noted his concurrence in sending the memorandum to City
Hoffman stated that there already exists a record and noted that he is not
sure three more months of City staff devoted to recording essentially the
same business practices is going to change anyone’s perception of what’s
going on in this area. He stated that he does not feel issuing citations is
a policy this body can implement.
Allen echoed Commissioner Hoffman’s comments.
Blumenfeld explained that CUP infractions are citable under the zone code,
and under the purview of the Planning Commission. He stated that staff is
proposing to use citations as a record to continue this process to help
build a record; advised that the investigations conducted thus far have
given the Commission written evidence to consider; and that if the
Commission decides to go forward with a revocation hearing, the Commission
will need this evidence in order to make a determination and that short of
giving citations, this is the best and only evidence this body has at this
Hoffman stated that short of citations, it may not be sufficient evidence
for him to make a decision on the kinds of issues that have been raised this
Blumenfeld highlighted six months’ worth of evidence before the Commission
this evening and stated that staff is proposing to continue the inspections
and proposing to cite the violations during the next three months to draw a
Hoffman stated that the business owners have not had an opportunity to
contest/dispute this same evidence in front of this Commission.
Chairman Perrotti, seconded by Commissioner Allen, to APPROVE staff
recommendation 1) Continue code enforcement inspections for three months and
report back to the Planning Commission on CUP and code compliance for the
businesses; 2) Schedule CUP revocation/modification hearings if the
businesses continue to operate in violation of their CUP or otherwise
violate the Municipal Code; and to forward the memorandum to City Council.
Hoffman stated that short of the formal issuance of citations, he does not
find this to be a compelling process; and stated that the owners should have
ample documentation to defend themselves before this body.
Perrotti amended his motion to include that the businesses receive a copy of
the inspection reports prior to reporting to the Planning Commission. No
objection was noted to this amendment.
carried as follows:
Koenig, Perrotti, Pizer