SUBJECT:

The Hermosa Beach Planning Commission

ANNUAL REVIEW AND REPORT ON CODE ENFORCEMENT

MINUTES OF THE PLANNING COMMISSION MEETING
OF THE CITY OF HERMOSA BEACH HELD ON
JANUARY 18, 2005, 7:00 P.M.,
AT THE CITY HALL COUNCIL CHAMBERS

Oral / Written Communications

None.

At this point, Chairman Perrotti advised that staff has requested Item No. 18A, Staff Items -- Annual Review of Conditional Use Permits for Restaurants, be considered at this time. No objection was noted.

Director Blumenfeld stated that pursuant to the Commission’s direction, staff is presenting the annual review of the Downtown businesses with respect to their performance of their conditional use permits and conformance to the Municipal Code; explained that the Commission had directed in January 2004 that staff work with the Downtown businesses to try to deal with some area-wide problems that were observed with respect to noise and on-going police problems that were occurring; that the Commission asked staff to conduct informal meetings with the Downtown businesses, which was done; and pointed out that over the last year, the City has observed good progress with respect to some of the issues of concern from last year’s Downtown business operations, which primarily pertain to noise and nuisance issues. He mentioned that some of the problem businesses have since closed and that they will be replaced with new businesses and new management; that other businesses have changed some of their business practices to improve the monitoring of customers, implementation of dress codes to deal with gang-related problems, for example; and that all the businesses have been aggressively checking I.D.’s in order to prohibit under-aged drinking.

Director Blumenfeld advised that the Fire Department has been doing twice monthly occupant load checks to deal with interior over-crowding; however, staff has observed over the last year that there are still problems with respect to the use of outdoor encroachment areas, allowing doors and windows to remain open while there is live entertainment; using outdoor patio areas as lounge areas as opposed to using them for outdoor dining; and loud music and TV’s installed in the encroachment patio areas, which are not permitted. From summer through December, he advised that staff conducted inspections and made the observations, which are attached to staff report (of record); that staff also met with six restaurant owners who were observed to have specific problems; and he mentioned that he and the Police Chief met separately with the business owners to discuss their violations and what was necessary to make improvements for compliance with either their conditional use permit or the Municipal Code. He noted that staff conducted follow-up investigations in November and December and still found there were violations after having had these discussions with the business owners.

Director Blumenfeld advised that the Planning Commission has the authority under the conditional use permit Section 17.70 to revoke or modify a conditional use permit; but explained that the City Attorney has observed that a conditional use permit conveys a property right to the businesses; and that he urged the Commission to carefully weigh any relevant evidence before revoking or modifying a conditional use permit – pointing out that revoking a conditional use permit would also result in repercussions for the business’s alcohol license.

Director Blumenfeld highlighted five options the Commission may consider, noting that staff is recommending the following three with respect to these businesses:

1.     Schedule informal hearings at Planning Commission with each non-compliant business and publicly review violations and necessary actions for compliance;

2.     Revise enforcement procedure policy at City Council to permit ticketing for conditional use permit violations as citable offenses and proceed with issuance of citations for each offense as necessary;

3.     Recommend the City Council revoke or modify encroachment permits where applicable in response to patio encroachment violations after proper notice pursuant to Chapter 12.16 of the Hermosa Beach Municipal Code

With regard to Recommendation No. 1, Director Blumenfeld advised that it would allow the Commission to conduct informal hearings wherein it would give the business owners an opportunity to present what they’re doing to rectify their problems; that it would give the Commission an opportunity to hear testimony from neighbors and/or customers of the businesses and also have the businesses make a public commitment to correct their violations; that the City could then follow up with limited/additional inspections; and that if it became clear the business wasn’t going to fulfill its commitments, then the Commission could proceed with a formal revocation or modification hearing.

With regard to Recommendation No. 2, Director Blumenfeld advised that it would allow the businesses time to correct their violations with continued follow-up and investigation and citations where necessary in order to enforce the Codes; and noted that this option would require procedural changes with City Council with respect to their direction about conditional use permit enforcement.

With regard to Recommendation No. 3, Director Blumenfeld advised this would involve compliance with requirements for the outdoor dining areas along Pier Plaza; that occupant load compliance could be addressed through enforcement of the encroachment permits by authority provided under the Building and Fire Codes; and mentioned that outdoor dining patios are guided by the Municipal Code, which allows the Public Works Director to revoke an encroachment permit when there are violations. He reiterated that during staff’s inspections, TV’s were observed to be installed when they were never permitted in the encroachment areas, that they were installed after encroachment permits were issued; that staff observed loud music, which is prohibited under the Noise Ordinance; and explained that this code provision allows the Public Works Director to notify the owners of a violation, to provide that notice in writing, giving a business owner 10 days in which to make an appeal to City Council.

With regard to Alternative No. 4, Director Blumenfeld advised that in order to allow for additional inspection, which basically requires additional code enforcement manpower, staff could allocate staff in the evening hours – pointing out that because of limited staffing, there would be limited or no daytime code enforcement; and, therefore, staff believes this alternative is not practical unless more staffing is added.

With regard to Alternative No. 5, Director Blumenfeld advised that this is the standard conditional use permit enforcement procedure, which allows for revocation or modification.

In conclusion, Director Blumenfeld stated that staff believes the problems listed in the memoranda should be addressed at a scheduled meeting of the Planning Commission for the purpose of expressing the Commission’s intent regarding conditional use permit and encroachment permit violation enforcement; and suggested that these meetings be held over two or three months with two or three businesses scheduled each month in order to not negatively impact the Commission Agendas. He indicated that staff also believes a citation program should be implemented as soon as possible for noise and conditional use permit violations and that citations be issued as necessary to control noise and over-crowding of the outdoor dining areas; and that any businesses which are repeatedly cited should be remanded to the Commission for conditional use permit modification or the City Council for encroachment permit review. He noted that at this point, staff is not recommending any particular business be brought up for formal review, but that the review be informal as a way to voice the Commission’s concerns.

Director Blumenfeld clarified for Chairman Perrotti that these hearings would be informal; and that the owners would be notified of their prescribed time to present their side of the issue for the Commission, doing the same with respect to the conditional use permit and failure to perform under the conditions.

Director Blumenfeld advised that Police Chief Lavin and Police Captain Eckert was involved in speaking with some of the businesses, that this was a review that involved not only the Community Development Department, but also the Police and Fire Departments. He stated that the observations of these three departments are in the memo provided to the Commission.

With regard to the violations, Vice-Chairman Pizer questioned why no citations were given.

Director Blumenfeld pointed out that there has been some improvement by the businesses, but that there’s a lot of room for improvement; explained that City Council expressed its interest in using the Commission to handle egregious CUP problems.

Vice-Chairman Pizer suggested that Council reconsider that policy, believing these businesses would be more likely to comply with code if they knew they would be given a citation.

Police Captain Eckert pointed out that the items listed in the memorandum do not include police citations for such things as under-aged drinking; expressed his belief that things are improving in the Downtown area as a result of enforcing dress codes; and noted that businesses are making an effort to close their doors to cut down on the noise. He added that some of the businesses that have closed down were some with the worst violations.

Vice-Chairman Pizer questioned if dress codes have an effect on gang activity in the Downtown area.

Police Captain Eckert stated that many of the beach communities have found that implementing dress codes has cut down on gang attendance; and that charging a higher cover charge also seems to have an effect on those who patronize these establishments.

Vice-Chairman Pizer questioned if dress codes could be incorporated into conditional use permits.

Director Blumenfeld noted that that would be difficult and that it would be more appropriate for an establishment to voluntarily enforce.

Chairman Perrotti expressed his belief that a ticketing procedure allows for a quick and efficient method of dealing with problems that typically wouldn’t be handled by the Police Department; addressed his concern with over-occupancy and people standing in the aisles; and noted his support for the first three recommendations in staff report.

Commissioner Hoffman expressed his belief that Recommendation No. 2 is the only viable alternative to give the City both a mechanism to enforce conditional use permits, short of pulling a conditional use permit, or modifying it in a way that has no effect; and stated that if this is to be a meaningful mechanism, there needs to be consistent code enforcement activity, questioning the City’s limited budget to get this accomplished.

Director Blumenfeld explained that the City Manager recognizes that this program needs consistent enforcement; noted that consideration might be given to having a person dedicated conditional use permit enforcement in the evenings; that the City might have to institute an administrative penalties ordinance that would allow the City to ticket and have the fines from the ticketing go toward compensating the cost for this code enforcement position; and that in order to not forfeit the other code enforcement activities that are routinely undertaken, a temporary or permanent part-time position may become necessary to deal with this activity.

Commissioner Koenig offered the following: He stated it had been reported that on December 11, 2004, he was at one of the nightclubs on the Promenade; that he was accused of using some explanatives and some threats to the manager of that particular nightclub; he advised that those allegations are untrue; that he has no ill-will or bias towards any of the establishments in Hermosa Beach; that he has made observations while walking in the Downtown area; that he has an open mind; and that he is prepared to do the right thing based on the evidence. He added that he will not be recusing himself from this issue and that he will proceed without prejudice. He stated that he would support the three recommendations by staff, noting his concurrence that there is a need for consistent enforcement.

There was consensus among the Commission to concur with the first three recommendations.

Director Blumenfeld advised that staff will proceed with scheduling informal hearings.

Despite the progress there are still problems in the area that must be addressed as evidenced by staff’s investigations. From August through December 2004, the Police, Fire and Community Development Departments conducted inspections, separately and together, and found several businesses that were in violation of their CUP, encroachment permit, and approved patio seating plans.

Each current CUP contains a requirement that a business comply with all municipal laws and ordinances. Thus any Municipal Code violation is also generally a CUP violation. The violations typically related to noise and use of patio areas and included violations of standard conditions requiring:

• Doors and windows to be closed during live music.

• Over occupied encroachment areas and removal of furniture inconsistent with approved seating plans.

• Lounging in required patio aisles.

• Loud music and TV’s installed in encroachment patio areas.

The specific reports from these investigations conducted in August through December 2004, are attached.

Staff met with six restaurant owners on November 2^nd, 3^rd and 4^th to discuss their violations and the steps needed to bring their businesses into compliance. A list of the restaurants and the issues discussed in these meetings is attached.

Follow up investigations were conducted, November 20^th, November 29^th, December 1^st , 3^rd ,12^th and 20^th 2004. These investigations, documented in the attached memoranda, indicate that little progress has been made as the businesses continued to violate their CUP’s relative to noise and improper use the encroachment areas.

The Commission has specific authority with respect to the Conditional Use Permit violations. Pursuant to Section 17.70 of the Zone Code, the Commission may revoke a CUP on any one or more of the following grounds:

A. That the approval was obtained by fraud;

B.  That the use for which such approval is granted is not being exercised;

C.  That the use for which such approval was granted has ceased to exist or has been suspended for one year or more;

D.     That the permit or variance granted is being, or recently has been, exercised contrary to the terms or conditions of such approval, or in violation of any statute, ordinance, law or regulation;

E. That the use for which the approval was granted was so exercised as to be detrimental to the public health or safety, or so as to constitute a nuisance.

The process requires a noticed public hearing at Planning Commission, where, upon consideration of all the facts and public testimony, the Commission may revoke or modify the conditions of the CUP to address specific problems. If modification is deemed appropriate, the Commission may establish more restrictive operating conditions which can range from eliminating live entertainment to establishing earlier closing times. The City Attorney has advised that a conditional use permit conveys a property right to the business and that the Commission must carefully weight the relevant evidence before revoking or modifying a permit. Revoking a CUP will also result in suspension of the business alcohol license issued by the Alcohol Beverage Control (A.B.C.).

Discussion of Alternatives:

Alternative 1 allows the Commission to conduct informal hearings to give the business owners another opportunity to present what they are doing to rectify their problems, hear testimony from neighbors and/or customers of the business, and have the businesses make a public commitment to correct their violations. The City may then follow up with limited further inspections. If it becomes clear that the business is not fulfilling their commitments, the Commission may then proceed with a formal revocation hearing or proceed with actions under Alternative 2.

Alternative 2 allows the businesses time to correct their violations with continued follow up investigation. The citation process typically involves sending formal letters that list specific violations, with a warning that if the violations are not corrected by a specific date the offender will be cited. This option requires procedural changes for citation issuance approved by City Council.

Alternative 3 involves compliance with requirements for use of outdoor dining areas along Pier Plaza and related occupant load violations. Occupant load compliance can be addressed through enforcement of encroachment permit regulations and under authority provided in the Building or Fire Code. This alternative may also include closing the encroachment areas after midnight when the area is not used for its intended purpose of outdoor dining.

Outdoor dining patios along Pier Plaza are regulated by Chapter 12.16 of the Municipal Code which allows the Public Works Director to revoke encroachment permits when there are violations. During staff’s inspections and meetings with Pier Plaza businesses, each violating business was warned that T.V.’s have never been allowed in the encroachment areas and that loud music is prohibited under the noise ordinance. The T.V.’s were installed after encroachment permits had been issued and are not permitted under outdoor dining regulations.

Staff advised the business owners to turn T.V’s off until further notice. Pursuant to Section 12.16.150 the City may issue a written violation notice and if the problem is not corrected it can revoke the encroachment permit. The businesses may then, within 10 days of notification, file an appeal before City Council. The Fire Department can check occupant loads for outdoor dining areas and require compliance with approved seating plans when checking interior occupancies.

Alternative 4 allows the business time to correct their problems with repeated review and consultation by staff to obtain code compliance. This requires continuing staff inspections and reallocation of code enforcement resources to continually monitor the Pier Plaza area.

Alternative 5 is discussed in detail above.

Conclusions:

Staff believes that the above problems should be addressed at a scheduled meeting of the Planning Commission for the purpose of expressing the Commission’s intent regarding the CUP or encroachment permit violations for each business. These meetings should be held over the next two months with two or three businesses considered per meeting in order to avoid impacting the Commission agenda. Staff also believes that a citation program should be implemented as soon as possible for noise and CUP violations and that citations be issued as necessary to control noise and overcrowding of outdoor dining areas. Any businesses repeatedly cited should be remanded to the Commission for CUP modification or to the City Council for encroachment permit review.

____________________________                                                                                        __________________________

Sol Blumenfeld,                                                                                                                       Director Mike Lavin,

Community Development                                                                                                       Police Chief

___________________________

Russell Tingley,

Fire Chief

Concur:

_____________________________

Stephen R. Burrell,

City Manager

Attachments:

1. Memoranda on Violations.

2. Police Department Foot Patrol log.

3. Encroachment Permit Regulations.

4. October 2, 2004 between the hours of 11:30 and 1:00 a.m.

·        Staff observed that doors and windows were open during live entertainment (D.J. performing) with extremely loud amplified music. There was also loud amplified music in the outdoor patio.

·        The noise was clearly audible from outside the restaurant along the public way.

·        TV’s were installed and operated in the encroachment areas in violation of CUP Condition No. 6 encroachment permit guidelines.

Staff observed a violations of Section12.16.090 Outdoor Dining Commercial (c) Conform to the Municipal Code:

Violation of Encroachment Regulations with outdoor dining patios not used for dining as required under encroachment guideline regulations and customers standing in required aisles in the patios.

November 25, 2004 to November 28, 2004 between the hours of 11:30 and 1:00 a.m.,

·        The police department foot patrol observed that doors and windows were open during live entertainment (D.J. performing) with extremely loud amplified music.

·        There was also loud amplified music in the outdoor patio. The noise was clearly audible from outside the restaurant along the public way.

·        TV’s were installed and operated in the encroachment areas in violation of CUP Condition No. 6 encroachment permit guidelines.

·        The police department foot patrol observed that outdoor dining patios were not used for dining as required under encroachment regulations and customers were standing in required aisles in the patios.

December 1, 3 and 12, 2004 between the hours of 11:30 and 1:00 a.m.,

·        The police department foot patrol observed that doors and windows were open during live entertainment (D.J. performing) with extremely loud amplified music.

·        There was also loud amplified music in the outdoor patio.  The noise was clearly audible from outside the restaurant along the public way.

·        TV’s were installed and operated in the encroachment areas in violation of CUP Condition No. 6 encroachment permit guidelines.

·        The police department foot patrol observed that outdoor dining patios were not used for dining as required under encroachment regulations and customers were standing in required aisles in the patios.

December 20, 2004 and December 31, 2004 between the hours of 11:30 and 1:00 a.m.,

·        The police department foot patrol observed that doors and windows were open during live entertainment (D.J. performing) with extremely loud amplified music.

·        There was also loud amplified music in the outdoor patio. The noise was clearly audible from outside the restaurant along the public way.

·        TV’s were installed and operated in the encroachment areas in violation of CUP Condition No. 6 encroachment permit guidelines.

·        The police department foot patrol observed that outdoor dining patios were not used for dining as required under encroachment regulations and customers were standing in required aisles in the patios.

Discussion of Code Enforcement Actions:

The Commission has directed staff to notify the subject businesses and schedule informal hearings to give the business owners an opportunity to comment and to present what they are doing to rectify their problems, hear testimony from neighbors and/or customers of the business, and have the businesses make a public commitment to correct their violations.

The Commission determined that after follow up inspections, if the business is not fulfilling their commitments, then it will proceed with a formal revocation hearing.

During the follow-up inspections, staff will proceed with citations for CUP noise violations. The citation process typically involves sending formal letters that list specific violations with a warning that if the violations are not corrected by a specific date the offender will be cited.¹ 

Also during the follow-up inspections, staff was directed to draft a report to City Council suggesting that violations of encroachment permits be referred to City Council for revocation or modification.² Some of the violations in the patios pertain to occupant load or egress violations which will be addressed when the fire department conducts occupant load inspections.

____________________________                                                                     __________________________

Sol Blumenfeld,                                                                                                         Director Mike Lavin,

Community Development                                                                                         Police Chief

__________________________

Russell Tingley,

Fire Chief

Attachments:

1. Memoranda on Violations.

2. Encroachment Permit Regulations.

3. CUP’s

Notes:

1. Section 17.74.030 establishes violations of CUP’s as a citable infraction with a fine of $50 for the first violation, $100 for the second violation, $150 for the third violation and $300 for each additional violation of the same condition within the one year. Each person guilty of a separate offense for each and every day during any portion of which any violation is committed, continued or permitted by such person and shall be punishable accordingly.

Section 17.74.010 provides that each person guilty of a violation of the provisions of this title shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punishable by a fine of not more than $300. Section 17.74.020 provides that each person shall be guilty of a separate offense for every day during any portion of which any violation of any provision of this title is committed, continued or permitted by such person, firm or corporation, and shall be punishable therefore as provided for in this title and any use, occupation or building or structure maintained contrary to the provisions hereof shall constitute a public nuisance.

2. Outdoor dining patios along Pier Plaza are regulated by Chapter 12.16 of the Municipal Code, which allows the Public Works Director to revoke encroachment permits when there are violations. During staff’s inspections and meetings with Pier Plaza businesses, each violating business was warned that TV’s have never been allowed in the encroachment areas and that loud music is prohibited under the noise ordinance. The TV’s were installed after encroachment permits had been issued and are not permitted under outdoor dining regulations. Staff advised the business owners to turn TV’s off until further notice. Pursuant to Section 12.16.150 the City may issue a written violation notice and if the problem is not corrected it can revoke the encroachment permit. The businesses may then, within 10 days of notification, file an appeal before City Council. The Fire Department can also check occupant loads for outdoor dining areas and require compliance with approved seating plans when checking interior occupant loads.