HomeMy WebLinkAbout- - Code Amendment CO-09-07 Amending - 1/5/2010CITY COUNCIL AGENDA REPORT
MEETING DATE: JANUARY 5, 2010 ITEM NUMBER:
SUBJECT: CODE AMENDMENT CO -09-07 AMENDING TITLE 13 OF THE COSTA MESA
MUNICIPAL CODE RELATED TO ALCOHOLIC BEVERAGE SALES
DATE: DECEMBER 17, 2009
FROM: PLANNING DIVISION/DEVELOPMENT SERVICES DEPARTMENT
PRESENTATION BY: MINOO ASHABI, SENIOR PLANNER
KIMBERLY BRANDT, AICP, ACTING DIRECTOR
FOR FURTHER INFORMATION CONTACT: MINOO ASHABI, SENIOR PLANNER
(714) 754-5610
RECOMMENDATION
Pursuant to Planning Commission's recommendation, give first reading to an Ordinance
amending Title 13 (Zoning Code). The code amendment will establish new regulations
related to the off -sale of alcoholic beverages in conjunction with liquor stores,
convenience stores, and mini -markets.
BACKGROUND
On July 14, 2009, at a joint study session, the City Council directed staff to prepare a
code amendment establishing new standards for operation of liquor stores and
convenience markets with alcoholic beverage sales for off-site consumption.
Zoning Code Section 13-200.71 currently requires a conditional use permit (CUP) for the
following:
• New liquor store, convenience store, or mini -market;
• Existing store that has its off -sale ABC license revoked or suspended for 30 days
or more;
• Certain changes in the operational characteristics of an existing store (i.e. request
new off -sale ABC license, change in type of off -sale ABC license, premise to
premise transfer of off -sale ABC license), and;
• Cumulative expansion of 500 square feet or more of gross floor area of a liquor
store or mini -market;
However, there are many existing stores that predated these zoning regulations and are
legally operating without a CUP. Staff considered the concerns expressed by the
Commission and Council and researched other city ordinances in preparation of the
proposed ordinance.
On October 12, 2009, the Planning Commission on a 4-0 vote recommended approval
of the proposed code amendment with the exception of the prohibited hours of sales
that was recommended to be applied on citywide basis and as a separate code
amendment.
The October 12, 2009 Planning Commission staff report can be accessed on line at:
http://www.ci.costa-mesa.ca.us/council/planning/2009-10-12/101209CO0907.pdf
On November 3, 2009, the City Council continued this item to a Study Session held on
November 10, 2009. At the Study Session, Council directed staff to do the following:
Provide more information related to the proposed code amendment by the
Planning Commission to prohibit sales of alcoholic beverages between 2:00 a.m.
and 9:00 a.m.; and,
Refine conditions related to size of alcoholic beverages to prohibit sale of single
can/bottle with high alcoholic concentration without restricting sale of high quality
expensive products.
ANALYSIS
The following summarizes how the proposed ordinance addresses concerns/issues
raised by the Commission and Council at the July and December study sessions:
Establish more restrictive criteria for requiring a conditional use permit for
existing establishments. Originally, staff proposed a more restrictive criterion for
requiring a conditional use permit with any type of transfer of an existing off -sale
ABC license (i.e. person-to-person, premise -to -premise, etc.). However, the City
Attorney advised that the existing code remain unchanged with respect to
requiring a conditional use permit only in cases when a premise -to -premise
transfer of an ABC license is requested. The attached ordinance reflects the
latest language as approved by City Attorney to retain the reference to premise -
to -premise transfers. However, the recommended amendments to the other
criteria remain unchanged. The following lists the proposed criteria for requiring a
new conditional use permit:
o New off -sale ABC license:
o Change in type of ABC license;
o Premise -to -premise transfer of an ABC license;
o Cumulative expansion of 100 SF; and,
o Suspension of an ABC license for 5 days in a cumulative five-year period.
Establish new development and operational standards for off -sale of alcoholic
beverages. City Council has previously adopted conditions of approval by
resolution as listed in Attachment 3. The proposed ordinance includes a list of
new operational standards that may be applied to new conditional use permits
such as establishing regulations for alcoholic beverages sold in individual
containers and prohibiting sales from drive-through windows and portable
refrigerated units. As directed by City Council, standard conditions related to the
size of beverages were revised to prohibit individual sales of single can/bottle
with high alcoholic concentration without restricting sale of high quality products.
The revised and new conditions read as follows:
0Z
I . Alcoholic beverage sales from drive through or walk-up service windows shall
be prohibited.
2. Wine, beer and other distilled spirit shall be sold in the factory manufactured
packages for retail sales. Factory multiple -packed bottles or cans shall not be
unpackaged to be sold individually. This restriction is not intended to prohibit
the sale of beverages in a single container packaged by the manufacturer for
individual sale.
3. The business shall be conducted, at all times, in a manner that will allow the
quiet enjoyment of the surrounding neighborhood. The business shall institute
whatever security measures are necessary to comply with this requirement.
New hours of sale for Alcoholic Beverages. Staff recommended new hours of
sales for alcoholic beverages to prohibit sales between the hours of 2:00 a.m. and
9:00 a.m. as a new condition of approval However, Planning Commission
recommended that this condition be applied as a separate citywide code
amendment to all off -sale outlets. Additional information from other cities and
existing case law will be gathered by staff. This item will be provided under a
separate code amendment for Council's consideration in February//March 2010.
• Code amendment to address declaration of public nuisances related to off -sale
alcoholic beverage establishments. Staff is recommending new provisions that will
specify nuisance determination and abatement procedures related to off -sale
establishments when a business is not operating according to the conditions of
approval or the business is operating in a disorderly manner. Refer to Section 13-
200.73 of the attached ordinance.
Other Jurisdictions
The existing zoning regulations relating to ABC licenses for liquor stores, convenience
stores, and mini -markets are similar to other cities surveyed by the Planning staff. Most
Orange County cities deal with off -sale businesses that predate a CUP requirement in a
similar manner, such as triggering the CUP requirements to a change in ABC license type
and/or an increase of floor area.
ENVIRONMENTAL DETERMINATION:
The project has been reviewed for compliance with the California Environmental Quality
Act (CEQA), the CEQA guidelines, and the City's environmental procedures, and has
been found to be exempt pursuant to Section 15061 (b) (3) (general rule) of the CEQA
Guidelines, in that it can be seen with certainty that there is no possibility that the
proposed amendment to the Zoning Code will have a significant effect on the
environment.
ALTERNATIVES
City Council may consider the following alternatives:
1. Give first reading to the Ordinance as recommended by Planning Commission and
modified per Council's direction included in Attachment 1.
2. Give first reading to the Ordinance, with additional modifications.
3. Retain the City's existing zoning provisions and receive and file the report.
3
LEGAL REVIEW
The City Attorney's office has approved the Ordinance as to form.
CONCLUSION
Code Amendment CO -09-07 will establish new criteria for requiring a CUP related to
existing businesses with an off -sale alcoholic beverage license and a new process for
declaring a liquor store, convenience store, or mini -market as a public nuisance.
�GGcb
MINOO ASHABI, AIA KIMBERLY BRA60T, AICP
Senior Planner Acting Development Svs. Director
Attachments: 1. Ordinance
2. October 12, 2009 — Planning Commission Meeting Minutes
3. Standard Conditions of Approval
4. Comparison Chart
cc: City Manager
Assistant City Manager
City Attorney
City Clerk
Public Services Director
Chief of Code Enforcement
Staff (4)
File (2)
Lieutenant Manley, P.D.
State Department of Alcoholic Beverage Control
Bryan Rushing
605 W Santa Ana Blvd, Bldg 28, Suite 369
Santa Ana, CA 92701
File: 010510000907 I Date: 122309 1 Time: 4:45 . m.
y
ATTACHMENT 1
ORDINANCE NO. 10-xx
AN ORDINANCE OF THE CITY COUNCIL OF COSTA
MESA, CALIFORNIA ADOPTING ZONING CODE
AMENDMENT CO -09-07 TO AMEND TITLE 13, CHAPTER
IX, ARTICLE 16, OF THE COSTA MESA MUNICIPAL
CODE REGARDING LIQUOR STORES, CONVENIENCE
STORES, AND MINI -MARKETS
THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES HEREBY ORDAIN AS
FOLLOWS:
SECTION 1: TITLE 13. Title 13,. Chapter IX, Article 16, Liquor Stores, Convenience
Stores, and Mini -Markets, of the Costa Mesa Municipal Code is hereby amended as
follows:
a. Amend Sections 13-200.71 through 13-200.73 as follows:
"Sec. 13-200.71 CONDITIONAL USE PERMIT REQUIRED
A new liquor store, convenience store, or mini -market shall be subject to the approval
of a conditional use permit, whether or not the business engages in retail sales of
alcoholic beverages through a State of California Department of Alcoholic Beverage
Control (ABC) off -sale license. An existing liquor store, convenience store, or mini-
market shall also be subject to the approval of a conditional use permit for the
following actions:
1. Issuance of a new off -sale ABC license; feh-a lig c) teF , GOnvenienGe stefe-,
er mini ma* -et, -
t
2. Any change in the type of off -sale ABC license; f^r a liqueF stem
GGRVeRieMe staFe, nr mini maFket
3. Any type of premise to premise transfer of an existing off -sale ABC license;
li
fGr a �rv,tuerrstere, GGnyeRieMe maFket, er mini market;
4. A cumulative expansion of 500 100 square feet or more of the gross floor
area; of a liqueF-Stere, EenvenienEe-steF� or,
5 ARy IiqueF tvro�zTriencnrae stere nr min _market -that has its of sale ABG
iGeR e revoked OF c u spell ed Any suspension or revocation of the off -sale
ABC license for 30 5 days or more by the state in a cumulative 5 -year period
by the state. The licensee of the establishment shall file and have approved a
conditional use permit before the off -sale ABC license can be reestablished.
Sec. 13-200.72 DEVELOPMENT AND OPERATIONAL STANDARDS FOR
LIQUOR STORES, CONVENIENCE STORES, AND MINI MARKETS
The City Council may adopt Development and Operational Standards for Liquor
Stores, Convenience Stores, and Mini -Markets that may be applied on a case-by-case
basis as conditions of approval by the review authority. The final review authority may
use the following #-hese-standards in review of new conditional use permits to impose
conditions of approval on the use to ensure compliance with the findings contained in
Chapter III, Planning Applications:
U
2. Alcoholic beverage sales from drive through or walk-up service windows shall
be prohibited.
4. Wine, beer and other distilled spirit shall be sold in the factory manufactured
packages for retail sales. Factory multiple -packed bottles or cans shall not be
unpackaged to be sold individually. This restriction is not intended to prohibit
the sale of beverages in a single container packaged by the manufacturer for
individual sale.
5. Beer or wine shall not be displayed or sold from an ice tub or any other type of
portable refrigerated unit.
6. The business shall be conducted at all times in a manner that will allow the
quiet enjoyment of the surrounding neighborhood. The business shall institute
whatever security measures are necessary to comply with this requirement.
Sec. 13-200.73 MODIFICATION OR REVOCATION
(a) Public Nuisance. If it is determined that certain characteristics of the
liquor store, convenience market, or mini -market are detrimental to the public
health, welfare, and safety and contrary to public interest, City Council may
declare the liquor store, convenience store, or mini -market as a public nuisance,
as defined by California Civil Code Section 3479 and 3480, and abate said
nuisance pursuant to the procedures set forth in Section 13-17 of the Zoning
Code.
(b) Findings. In addition, Tthe final review authority may modify or revoke a
conditional use permit for a liquor store, convenience store, or mini -market based
upon the findings in Section 13-29(o), or upon making one or more of the following
findings:
1. That the approval was obtained through fraudulent, erroneous, or
misleading information;
2. The use is being operated in an illegal or disorderly manner;
3. The terms or conditions of approval of the conditional use permit have
been violated.
3- 4. The use creates an adverse impact.on the health, safety, or welfare of
surrounding properties and uses; or
4. 5. The use is operated in violation of ABC rules and regulations."
SECTION 2: ENVIRONMENTAL DETERMINATION. The project has been reviewed for
compliance with the California Environmental Quality Act (CEQA), the CEQA guidelines,
and the City's environmental procedures, and has been found to be exempt pursuant to
Section 15061 (b) (3) (general rule) of the CEQA Guidelines, in that the City Council
hereby finds that it can be seen with certainty that there is no possibility that the passage
of this ordinance amending the Zoning Code will have a significant effect on the
environment.
SECTION 3: INCONSISTENCIES. Any provision of the Costa Mesa Municipal Code or
appendices thereto inconsistent with the provisions of this ordinance, to the extent of such
inconsistencies and or further, is hereby repealed or modified to the extent necessary to
affect the provisions of this ordinance.
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SECTION 4: APPLICABILITY. The provisions of this ordinance shall be applicable to
new and existing off -sale license establishments as applicable.
SECTION 5: SEVERABILITY. If any provision or clause of this ordinance or the
application thereof to any person or circumstances is held to be unconstitutional or
otherwise invalid by any court of competent jurisdiction, such invalidity shall not affect
other provisions or clauses or applications of this ordinance which can be implemented
without the invalid provision, clause or application; and to this end, the provisions of this
ordinance are declared to be severable.
SECTION 6: PUBLICATION. This Ordinance shall take effect and be in full force thirty
(30) days from and after the passage thereof, and prior to the expiration of fifteen (15)
days from its passage shall be published once in the ORANGE COAST DAILY PILOT, a
newspaper of general circulation, printed and published in the City of Costa Mesa or, in
the alternative, the City Clerk may cause to be published a summary of this Ordinance
and a certified copy of the text of this Ordinance shall be posted in the office of the City
Clerk five (5) days prior to the date of adoption of this Ordinance, and within fifteen (15)
days after adoption, the City Clerk shall cause to be published the aforementioned
summary and shall post in the office of the City Clerk a certified copy of this Ordinance
together with the names and member of the City Council voting for and against the same.
ATTEST:
PASSED AND ADOPTED this day of 2010.
ALLAN R. MANSOOR
Mayor of the City of Costa Mesa
APPROVED AS TO FORM:
City Clerk of the City of Costa Mesa City Attorney
7
STATE OF CALIFORNIA)
)ss
COUNTY OF ORANGE )
I, JULIE FOLCIK, City Clerk and ex -officio Clerk of the City Council of the
City of Costa Mesa, hereby certify that the above foregoing Ordinance No. 10- as
introduced and considered section by section at a regular meeting of said City Council
held on the day of , 2010, and thereafter passed and adopted as a whole
at the regular meeting of said City Council held on the day of , 2010,
by the following roll call vote:
AYES:
NOES:
IN WITNESS WHEREOF, I have hereby set my hand and affixed the Seal of the
City of Costa Mesa this day of 12010.
City Clerk
City Council of the City of Costa Mesa
ATTACHMENT
Ayes: Chair James Righeimer, Vice Chair Sam Clark, and
Commissioner Stephen Mensinger
Noes: Commissioner Colin McCarthy
Absent: None.
The Chair stated that next Monday at 6:00 p.m. there will be a
special meeting just for this item.
4. Application No.:
CO -09-07
Site Address:
Citywide
Applicant:
City of Costa Mesa
Environmental
Determination:
Exempt
Description:
An ordinance of the City Council of Costa Mesa, California
adopting Zoning Code Amendment CO -09-07 to amend
Title 13, Chapter IX, Article 16, of the Costa Mesa
Municipal Code regarding liquor stores, convenience
stores, and mini -markets.
Senior Planner Minoo Ashabi reviewed the information in the
staff report and Deputy City Attorney Tom Duarte, Planning
Administrator Claire Flynn, and Ms. Ashabi responded to
questions from the Commission regarding off -sale hours, ABC
license regulations, a future study session discussion, and a
restriction as part of the conditional use permit (CUP) process.
Chris McEvoy, Costa Mesa, commented on ABC license
regulations and certain liquor stores that are public nuisances.
Commissioner McCarthy and Ms. Flynn discussed hourly
restrictions for the CUP process for liquor stores and changing
the language to further restrict off -sales from 6:00 a.m. to 9:00
a.m. and removing line Item No. 7 (Standard 7) of the
ordinance. Ms. Flynn replied to the Chair that the Commission
could recommend that the City Council provide direction on
Item No. 7.
Ms. Flynn explained that Item No. 5 on Page 5 shows a
minimum suspension of 30 days, but the amendment would
further restrict the strict standard to 5 days.
Ri
No one else wished to speak and the Chair closed the public
hearing.
MOTION: Recommend that City Council introduce and
give first reading to Code Amendment CO -09-07, to Title
13, of the Costa Mesa Municipal Code, related to off -sale
of alcoholic beverages, with the removal of Item 7, from
Attachment 1, for City Council approval as a separate
code amendment.
Moved by Commissioner Colin McCarthy, seconded by
Commissioner Stephen Mensinger.
During discussion on the motion, the Chair, the Vice Chair, and
Ms. Flynn discussed the wording of the motion, and initiating a
code amendment for Item No. 7.
The motion carried by the following roll call vote:
Ayes: Chair James Righeimer, Vice Chair Sam Clark,
Commissioner Colin McCarthy, and Commissioner
Stephen Mensinger
Noes: None.
Absent: None.
5. Application No.:
CO -09-09
Site Address:
Citywide
Applicant:
City of Costa Mesa
Environmental
Determination:
Exempt
Description:
An ordinance of the City Council of Costa Mesa, California
adopting Zoning Code Amendment CO -09-09 to amend
Title 13, Chapter III, Planning Applications, of the Costa
Mesa Municipal Code, to exclude the density of affordable
housing projects from being subject to discretionary
review during the Design Review process.
Planning Administrator Claire Flynn reviewed the information in
the staff report and responded to a question from the
Commission regarding zoning use.
/99
ATTACHMENT 3
LIQUOR STORES, CONVENIENCE STORES AND MINI -MARKETS
"DEVELOPMENT AND OPERATIONAL STANDARDS"
The following is a list of conditions that could be applied as conditions of approval
where appropriate to any new liquor store, convenience store or mini -market. In
the parentheses following each standard is a notation as to which business the
standard may be applied to. LS denotes liquor stores; CS denotes convenience
stores; MM denotes mini -markets; and All refers to all three types of businesses.
Sale Restrictions
38. Music or other entertainment shall not be audible beyond the
area under the control of the licensee.
39. Prior to alcohol sales at this location, the applicant shall
purchase and transfer an existing Alcoholic Beverage
Control license from a location within the City limits of Costa
Mesa. (All)
40. Alcoholic beverage sales shall be limited to only beer and
wine. (CS, MM)
41. No wine shall be sold with an alcoholic content of greater than
15% by volume except for "dinner wines" which have been
aged 2 years or more and maintained in corked bottles. (CS,
MM)
42. Wine shall not be sold in bottles or containers smaller than 750
milliliters. (All)
43. No sale of beer in single cans or bottles (any size) shall be
permitted. This restriction is not intended to prohibit the sale of
such beverages in kegs or other types of containers, with a
volume of 2 or more gallons, which are clearly designed to
dispense multiple servings. (All)
44. Beer, malt beverages, wine coolers or pre -mixed distilled spirit
cocktails (if allowed by the license) packed in 16 -ounce
containers or smaller, may not be sold as single containers,
but must be sold in manufacturer pre-packaged multi -unit
quantities. (All)
45. Beer or wine shall not be displayed or sold from an ice tub or
any other type of portable refrigerated unit. (All)
On-site Security
46. Applicant shall post signs inside and outside the premises
prohibiting the on-site consumption of alcoholic beverages
and loitering. (All)
47. Applicant shall post signs inside and outside the premises
in compliance with the City of Costa Mesa Municipal Code
notifying the public with regard to the prohibition of open
containers of alcohol beverages. (All)
At least every 2 hours, from 4:00 p.m. to closing, the
48.
applicant shall patrol the area over which the applicant
has control in an effort to prevent the loitering of persons
about the premises. The frequency of patrols shall be
increased should the need arise. The applicant shall
make reasonable efforts to prevent loitering during other
hours the business is open. (All)
49.
Applicant shall secure the premises with appropriate
security lighting and employee scrutiny of adjacent areas
under which applicant has control, to prevent trash, graffiti
and littering. Any lighting under the control of applicant
shall be directed in such a manner so as not to
unreasonably interfere with the quiet enjoyment of nearby
residences. Applicant shall further provide adequate
lighting above the entrance to the premises sufficient in
intensity to make visible the identity and actions of all
persons entering and leaving the premises. (All)
50.
Exterior public telephones shall be equipped to prohibit
incoming calls. (All)
51.
Except as permitted by the City of Costa Mesa Municipal
Code for temporary window signs, windows shall not be
blocked or obscured. (All)
On-site Maintenance
52. The applicant shall maintain free of litter all areas of the
premises under which applicant has control. (All)
53. Any graffiti painted or marked upon the premises shall be
removed or painted over within 48 hours of being applied.
(All)
Signage and Advertising
54. Exterior advertising shall comply with the City's sign
regulations, and exterior advertisements shall be prohibited
which indicate the availability of alcoholic beverages. Interior
displays of alcoholic beverages or signs which are clearly
visible from the exterior at the closest public street or
sidewalk, shall constitute a violation of this condition. (CS,
MM)
55. Exterior advertising, including temporary window signage,
shall comply with all the City's sign regulations. Exterior
signage indicating the availability of alcoholic beverages is .
limited to the name of the business, e.g., South Coast Liquor
Store. 'Additional exterior advertisements promoting or
indicating the availability of alcoholic beverages are
prohibited. Interior displays of alcoholic beverages or signs
which are clearly visible from the exterior at the closest
public street or sidewalk, shall constitute a violation of this
condition. (LS)
/*Z
ATTACHMENT 4
COMPARISON CHART
Thresholds for CUP Requirement
Existing Code
Proposed Amendment
New off -sale ABC licenses for a liquor
store, convenience store or mini -market
New off -sale businesses inclusive of all
alcoholic beverage establishments
Change in ABC license type for a liquor
store, convenience store, or mini -market
No Change
Transfer of license premise to premise
No change
500 SF expansion of gross floor area
100 SF expansion of gross floor area
Suspension or revocation of license by
ABC for 30 da s
Suspension or revocation of license by
ABC for 5 days
13