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RES-2009-067RESOLUTION NO. 2009 -067 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM FINDING AND DETERMINING THAT THE PUBLIC CONVENIENCE OR NECESSITY WOULD BE SERVED BY THE ISSUANCE OF AN ALCOHOLIC BEVERAGE CONTROL LICENSE FOR THE PREMISES LOCATED AT 1685 WEST KATELLA AVENUE, ANAHEIM, CALIFORNIA (DETERMINATION OF PUBLIC CONVENIENCE OR NECESSITY NO. 2008 00051). WHEREAS, pursuant to applicable provisions of the Business and Professions Code, the Department of Alcoholic Beverage Control (hereinafter the "Department is charged with the responsibility of reviewing applications and issuance of licenses "licenses for the sale and/or manufacture of alcoholic beverages in the State of California; and WHEREAS, Section 23958 of the Business and Professions Code provides that the Department shall deny an application for a license if issuance of that license would tend to create a law enforcement problem, or if issuance would result in or add to an undue concentration of licenses, except as provided in Section 23958.4 of said Business and Professions Code; and WHEREAS. Section 23958.4 of the Business and Professions Code provides that, notwithstanding the Iimitations of Section 23958, the Department shall issue a license if the applicant shows that "public convenience or necessity" would be served by the issuance of such license: and WHEREAS, said Section 23958.4 further provides that the determination of "public convenience or necessity" shall be made by the Department with regard to certain applications. and shall be made by the local governing body of the area in which the applicant premises are located with regard to certain other applications; and WHEREAS, as a local governing body within the meaning of said Section 23958.4 of the Business and Professions Code, the City Council of the City of Anaheim (hereinafter the "City Council has heretofore adopted Anaheim City Council Resolution No. 95R -134 delegating determinations regarding "public convenience or necessity" which determinations are otherwise within the authority of the City Council to the Planning Commission of the City of Anaheim, and establishing procedures for the processing of such determinations, including the appeal of such determinations to the City Council, and providing for certain other procedural matters concerning the review and issuance of such licenses by the Department: and WHEREAS, the Anaheim City Planning Commission (hereinafter the "Planning Commission") did receive an application for a determination of public convenience or necessity to permit the sale of beer and wine for off premises consumption in conjunction with a 1 convenience market on that certain real property generally located at 1685 West Katella Avenue, Anaheim, California. as more particularly shown in Exhibit "A" attached hereto and incorporated herein by this reference (hereinafter the `'application and WHEREAS, Determination of Public Convenience or Necessity No. 2008 -00051 is proposed in conjunction with Conditional Use Permit No. 2008 -05394 to permit a convenience market and authorize the sale of beer and wine for off premises consumption in conjunction therewith (hereinafter the "Project Actions and WHEREAS. the Planning Commission did hold a duly noticed public hearing to consider the Project Actions, and did receive and consider evidence and testimony for and against said project. and, on February 18, 2009, following said public hearing adopted its Resolution No. PC2009 -027 granting Conditional Use Permit No. 2008 05394, in part, to permit a convenience market. but denied the request to permit the sale of beer and wine for off premises consumption in conjunction therewith. Accordingly, no action was taken by the Planning Commission on Determination of Public Convenience or Necessity No. 2008 00051, to determine whether the public convenience or necessity would be served by the issuance of an alcoholic beverage control license for the sale of beer and wine for off premises consumption; and WHEREAS, the Planning Commission has reviewed the Project Actions and did find and determine that the proposed project falls within the definition of Categorical Exemptions, Section 15301, Class 1 (Existing Facilities) as defined in the State CEQA Guidelines. and is therefore. exempt from the requirement to prepare additional environmental documentation; and WHEREAS, within the time prescribed by law, the applicant did appeal said Planning Commission decision to the Anaheim City Council, asking the City Council to reconsider Conditional Use Permit No. 2008 -05394 and Determination of Public Convenience or Necessity No. 2008- 00051. as requested by applicant, to permit the sale of beer and wine for off premises consumption in conjunction with a convenience market; and WHEREAS. the City Council did set said application for such project for a de novo hearing, which public hearing was duly noticed in the manner provided by law; and WHEREAS, at the time and place fixed for said public hearing, the City Council did hold a duly noticed public hearing to consider said application and did receive and consider evidence and testimony for and against the application, and based thereon does hereby make the findings and determinations hereinafter set forth. NOW. THEREFORE, BE IT RESOLVED by the City Council of the City of Anaheim that the public convenience or necessity would be served by the proposed sale of beer and wine for off premises consumption in conjunction with a convenience market, as requested in the application. for the following reasons: 1 Chat California state law requires a determination of public convenience or necessity when property is located in a reporting district that has an over concentration of licenses and that Section 23958 of the Business and Professions Code provides that the ABC shall deny an application for a license if issuance of that license would tend to create a law enforcement problem except when an applicant has demonstrated that public convenience or necessity would be served by issuance of a license. 2. That Resolution No. 95R -134 authorizes the City of Anaheim Police Department to make recommendations related to the public convenience or necessity determinations; and when the sale of alcoholic beverages for on- premises consumption is permitted by the Municipal Code, said recommendations shall take the form of conditions of approval to be imposed on the determination in order to ensure that the sale and consumption of alcoholic beverages does not adversely affect any adjoining land use or the growth and development of the surrounding area. 3. That subject property is located within Reporting District 2022, which has an "on average crime rate" of 0% percent above or below the City average. The population within the census tract allows for five off sale ABC licenses and there are presently eight licenses in the tract. The proposed license would be the ninth license in the tract. The population also allows for eight on -sale licenses and there are presently ten in the tract. 4. That the proposal, as conditioned, will not adversely affect the adjoining land uses and the growth and development of the area in which it is located because the sale of beer and wine is ancillary to the overall product mix provided by the neighborhood- oriented commercial retail store. Moreover, the Police Department indicates no specific concerns related to off premises beer and wine sales and operation of this business, subject to compliance with conditions of approval. 5. That the traffic generated by the continued use of the property as a convenience market with off premises alcoholic beverage sales will not impose an undue burden upon the streets and highways designed and improved to carry the traffic in the area. 6. That the granting of the determination of public convenience or necessity under the conditions imposed will not be detrimental to the health and safety of the citizens of the City of Anaheim as the sale of alcoholic beverages is ancillary to the proposed market. The Police Department indicates no specific concerns related to off premises beer and wine sales and operation of this business. subject to the conditions of approval. BE IT FURTHER RESOLVED that the City Council, as lead agency for purposes of the California Environmental Quality Act. having reviewed the Project Actions, does hereby find and determine that the proposed project falls within the definition of Categorical Exemptions, Section 15301. Class 1 (Existing Facilities) as defined in the State CEQA Guidelines. and is therefore. exempt from the requirement to prepare additional environmental documentation. 3 BE IT FURTHER RESOLVED that the Anaheim City Council, for the reasons hereinabove stated, does determine that the public convenience or necessity would be served by the approval of said license, which is hereby approved, subject to the conditions of approval described in Exhibit "B" attached hereto and incorporated herein by this reference which are hereby found to be a necessary prerequisite to the proposed use of the subject property in order to preserve the safety and general welfare of the Citizens of the City of Anaheim. BE IT FURTHER RESOLVED that the City Council does hereby find and determine that adoption of this Resolution is expressly predicated upon applicant's compliance with each and all of the conditions hereinabove set forth. Should any such conditions, or any part thereof, he declared invalid or unenforceable by the fmal judgment of any court of competent _jurisdiction, then this Resolution. and any approvals herein contained, shall be deemed null and oid. BE IT FURTHER RESOLVED that this application is granted subject to the approval by the Cite Council of Conditional Use Permit No. 2008 05394, now pending. THE FOREGOING RESOLUTION is approved and adopted by the City Council of the City of Anaheim this 14thday of April 2009, by the following roll call vote: AYES NOES: NONE ABSENT NONE ABSTAIN: Mayor Pringle AA Al ATTEST CITY CLERK OF THE CITY 0 ANAHEIM 72500.v2 MGordon Council Members Hernandez, Sidhu, Galloway, Kring CITY OF ANAHEIM Mayor pro tem City of Anaheim EXHIBIT "A" PUBLIC CONVENIENCE OR NECESSITY PERMIT NO. 2008 00051 -1 -U1 r• L SUMAC LN I" 1 1 KATELLA AVE H cc H Source: Recorded Tract Maps and /or City GIS Please note the accuracy is two to five feet. 10703 -J EXHIBIT `B" PUBLIC CONVENIENCE OR NECESSITY PERMIT NO. 2008-00051 NO. CONDITIONS OF APPROVAL GENERAL No alcoholic beverages shall be displayed outside of the 1 f building or within five (5) feet of any public entrance to the building. There shall be no exterior advertising or sign of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs which are clearly visible to the exterior shall constitute a violation of this condition. The area of alcoholic beverage displays shall not exceed 25% of the total display area in a building 4 The sales of alcoholic beverages shall be made to customers only when the customer is in the building. No person under 21 years of age shall sell or be permitted to 5 sell alcohol without someone 21 years of age or older present. Beer and malt beverages in quantities of quarts, 22 oz., 40 oz., or similar size containers may be sold individually for one year from the date of business license issuance. After one (1) year of operation beer and malt beverages in quantities of quarts, 22 oz., 40 oz.. or similar size containers may be sold only in multi- unit. prepackaged quantities as delivered from the distributor. Wine may be sold in sizes less than 750 ml. and wine coolers may be sold individually for one year from the date of business 6 license issuance. After one (1) year of operation wine shall not be sold in bottles or containers smaller than 750 ml. and wine coolers may sold only in multi -unit. prepackaged quantities as delivered from the distributor. The applicant may amend this conditional use permit to allow the sales of individual containers of beer and /or wine coolers provided that the sales of these items in the first year of operation have not resulted in a public nuisance. The cost of such an amendment shall be the applicant's responsibility. RESPONSIBLE FOR MONITORING Police /Code Enforcement Police /Code Enforcement Police /Code Enforcement Police /Code Enforcement Police /Code Enforcement Police /Code Enforcement 6 The possession of alcoholic beverages in open containers and 7 the consumption of alcoholic beverages are prohibited on or around the premises. 8 1 1 The parking lot of the premises shall be equipped with lighting of a minimum one (1) foot candle power to illuminate and make easily discernible the appearance and conduct of all persons on or about the parking lot. Additionally, the position of such lighting shall not disturb the normal privacy and use of any neighboring residences. There shall be no amusement machines, video game devices or pool tables maintained on the premises at any time. There shall be no public telephones on the property that are 10 located outside of the building and within the control of the applicant. The subject property shall be developed substantially in accordance with plans and specifications submitted to the City of Anaheim by the petitioner and which plans are on file with the Planning Department marked Exhibit Nos. 1 (Site Plan) and 2 (Floor Plan), and as conditioned herein. Approval of this application constitutes approval of the proposed request only to the extent that complies with the Anaheim Municipal Zoning Code and any other applicable 1 City, State and Federal regulations. Approval does not include any action or findings as to compliance or approval of the request regarding any other applicable ordinance, regulation or requirement. Police /Code Enforcement Police /Code Enforcement Police /Code Enforcement Police /Code Enforcement Planning Planning