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Hermosa Beach Conditional Use Permit with On-Sale ABC License

Report on Aloha Sharkeez (52 Pier Avenue) and Dragon Bar ( 22 Pier Avenue) Conditional Use Permits and Code Compliance.

Recent Hermosa Beach CUP Proceedings with On Sale ABC License

Still Water Contemp. Bistro at The Hermosa Pavilion

Union Cattle Co.        The Shore Lounge     The Dragon Bar    Aloha Sharkeez / Dragon CUP Review

  HB Planning Commission Annual Review of CUP's

  Lee's Teriaki & Tofu CUP     302 Pier Ave. CUP      T. J. Charlyz CUP 

   Hibachi Rest. CUP      Mama's Original CUP      Dano's / Element CUP

Subject: Report on Aloha Sharkeez (52 Pier Avenue) and Dragon Bar ( 22 Pier Avenue)

Conditional Use Permits and Code Compliance.



FEBRUARY 15, 2005, 7:00 P.M.,


19.                        Report on Aloha Sharkeez (52 Pier Avenue) and Dragon Bar (22 Pier Avenue) Conditional Use Permits and Code Compliance.(PDF File).

Staff 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.

Director 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.

He advised 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.

Director 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.

Director Blumenfeld 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.

Director 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.

Director 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.

Addressing 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.

Director 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.

Commissioner Koenig questioned if the tickets will be the same whether given by code enforcement or the Police Department.

In response, 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.

Chairman Perrotti questioned what violations a code enforcement officer could cite.

Director 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.

Commissioner Koenig asked if staff has estimated how much the additional resources will cost to implement this process and how frequent the inspections will be done.

Director 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 Attorney time.

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.

Commissioner Koenig questioned if there is any data on any visits with the code enforcement officers when there weren’t any violations on these businesses.

Director 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 inspection occurred.

Addressing 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 evening.

Director 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.

Fire Chief 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.

He explained 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 citation.

Fire Chief 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.

Director 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.

Director Blumenfeld noted for Commissioner Koenig that staff has prepared a checklist that the police can utilize during their inspections, that simplifies the inspection process.

Captain Tom 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.

Chairman Perrotti stated that he concurs that police resources should be limited in this effort when possible.

Ron Newman, owner of Aloha Sharkeez, passed out a memorandum from his lawyer which answers many questions.

Chairman 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, not drinking.

Mr. Newman 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 that time.

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.

With regard 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.

Mark Kosgrove, 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.

Chairman Perrotti noted for Mr. Kosgrove that staff report indicates documented violations after the November 2nd meeting.

Mr. Kosgrove 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.

Commissioner Hoffman pointed out that Mr. Kosgrove’s CUP clearly states televisions are not permitted.

Mr. Kosgrove 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.

Commissioner 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.

Mike 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.

Director 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.

Commissioner Hoffman questioned if it is also a Building Code violation having televisions outdoors as permanent fixtures.

Director 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 violation.

Mr. 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.

Chairman 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 noise.

Director 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.

Chairman 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.

Commissioner 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 this.

Vice-Chairman 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.

Chairman 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.

Commissioner Koenig addressed the importance of having proper data in making a determination and noted his concurrence in sending the memorandum to City Council.

Commissioner 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.

Commissioner Allen echoed Commissioner Hoffman’s comments.

Director 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 point.

Commissioner 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 evening.

Director 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 record.

Commissioner Hoffman stated that the business owners have not had an opportunity to contest/dispute this same evidence in front of this Commission.

MOTION by 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.

Commissioner 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.

Chairman 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.

The motion carried as follows:


Allen, Koenig, Perrotti, Pizer









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