93-032 RESOLUTION NO. 93R-32
A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF ANAHEIM MODIFYING
CONDITIONAL USE PERMIT NO. 259 AND
AI~ENDING RESOLUTION NO. 62R-690 AS
AMENDED BY RESOLUTION NO. 63R-57.
WHEREAS, the Planning Commission of the city of Anaheim
(the "Planning Commission") received a verified petition (the
"Petition") from Dale D. and Sally A. Walker (the "Walkers"),
owners of certain real property (the "Property") located within
the City of Anaheim, County of Orange, State of California,
legally described as:
That portion of Lot 5, Stockwell Subdivision, as shown
on a map thereof recorded in book 6, page 10,
Miscellaneous Maps, records of said Orange County,
described as follows:
Beginning at the Southeast corner of said Lot 5, being
considered in the center line of Raymond Avenue; thence
North along the East line of said Lot 5, and the center
line of Raymond Avenue, 119.01 feet; thence parallel to
the South line of said Lot 5 North 88° 52' 20" West
195.04 feet to the point of beginning; thence
continuing North 88° 52' 20" West 84.96 feet to the
East line of Orange County Flood Control, right of way;
as described in deed recorded June 9, 1960, in book
5279, page 368, official Records, in the office of the
County Recorder of said Orange County; thence North
along said East line of said right of way 181.16 feet;
thence South 88° 33' 54" East 84.97 feet; thence South
180.68 feet to the true point of beginning;
for a Conditional Use Permit to permit a "hofbrau and repair
garage" on the Property; and
WHEREAS, on June 25, 1962, the Planning Commission did
hold a public hearing, notice of said public hearing having been
duly given as required by law and in accordance with all
applicable provisions of the Anaheim Municipal Code, to hear and
consider evidence for and against said proposed Conditional Use
Permit, and to investigate and make findings and recommendations
in connection therewith; and
WHEREAS, on June 25, 1962, said Planning Commission,
after due inspection, investigation, and study made by itself and
in its behalf, and after due consideration of all evidence,
testimony and reports offered at said public hearing, did approve
its Resolution No. 385, Series 1961-62, granting Conditional Use
Permit No. 259 to permit an automotive repair garage on the
Property, subject to certain conditions specified in said
Resolution, but denying the "hofbrau" portion of said Petition on
the grounds that the proposed "hofbrau" was not compatible with
the land uses in the area; and
WHEREAS, on June 29, 1962, the Walkers filed a written
appeal to the City Council of the City of Anaheim (the "City
Council") appealing the decision of the Planning Commission
regarding Conditional Use Permit No. 259 due to the denial of the
"hofbrau" portion of the use requested in the Petition; and
WHEREAS, said appeal was set for public hearing by the
City Council on July 24, 1962, and notice of such public hearing
was duly given as required by law; and
WHEREAS, at the time and place fixed for said public
hearing, the City Council did duly hold and conduct such hearing
and did give all persons interested therein an opportunity to be
heard and did receive evidence, testimony and reports; and
WHEREAS, following said public hearing, the City
Council, on July 24, 1962, did approve its Resolution No. 62R-690
granting Conditional Use Permit No. 259 permitting the
establishment of (i) a "Hofbrau Restaurant for the sale of food,
and incidentally for the sale of beer" (the "Restaurant") on a
portion of the Property (now generally described as 1007 E.
Balsam Avenue, Anaheim, California) and (ii) an automotive repair
garage on a portion of the Property (now generally described as
1009 E. Balsam Avenue, Anaheim, California); and
WHEREAS, said Conditional Use Permit No. 259, and each
of the uses permitted therein, was approved subject to certain
express conditions of approval as set forth in Resolution No.
62R-690, including but not limited to the following requirements
and reservations:
(a) That the permit is granted for a hofbrau operation
and the sale of food, and incidentally for the
sale of beer as well as for the repair garage
(Condition No. 4);
(b) The subject property shall be developed
substantially in accordance with the exhibit on
file with the City of Anaheim, made a part of the
Conditional Use Permit No. 259 file (Condition No.
5); and
(c) That the City Council reserves the right to revoke
such Conditional Use Permit for good cause or
failure of said owners, heirs, successors or
assigns to comply with the Anaheim Municipal Code
and regulations and conditions herein.
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AND WHEREAS, the exhibit on file with the City of
Anaheim, made a part of Conditional Use Permit No. 259 file (as
referred to in Condition No. 5 of said Conditional Use Permit No.
259) requires that 18 off-street parking spaces (10' X 20' in
size) shall be maintained and available for the joint use of the
Restaurant and the repair garage; and
WHEREAS, on January 22, 1963, the City Council did
adopt its Resolution No. 63R-57 amending Resolution No. 62R-690
granting Conditional Use Permit No. 259 by deleting Condition No.
3 and adding new conditions relating exclusively to the operation
of the repair garage and, not germane for purposes of the present
proceedings; and
WHEREAS, the Property is currently owned by Joe and
Marie Takacs (the "Takacs"); and
WHEREAS, since approximately 1971, the portion of the
Property located at 1007 E. Balsam Avenue, Anaheim, California,
and authorized as a Restaurant by Conditional Use Permit No. 259
has been leased to, and operated by, Jette Birgette Holgersen
("Holgersen") as a business establishment which is currently
known as, and operated under the name of, "Foxey's"; and
WHEREAS, on September 10, 1991, Holgersen filed an
application pursuant to Chapter 4.18 of the Anaheim Municipal
Code for an entertainment permit to permit female dancers to
perform at ("Foxey's") from 12 noon to 2:00 a.m. daily; and
WHEREAS, said entertainment permit application was
denied by written notice from the City of Anaheim License
Collector to Holgersen dated June 12, 1992; and
WHEREAS, an appeal from the denial of said
entertainment permit was received by the city on behalf of
Holgersen on July 1, 1992, which appeal remains pending; and
WHEREAS, on November 16, 1992, the Planning Commission,
pursuant to a staff report and recommendation from the Planning
Department that date, did, by duly adopted motion, recommend that
the City Council consider the possible termination or
modification of Conditional Use Permit No. 259 pursuant to
Section 18.03.092 of the Anaheim Municipal Code; and
WHEREAS, on December 9, 1992, the City Council did
consider the report and recommendation of the Planning Commission
and the report and recommendation of the Planning Department and,
based thereon, did schedule a public hearing to be held by the
City Council on January 12, 1993, pursuant to Section
18.03.091 of the Anaheim Municipal Code to consider the possible
termination or modification of Conditional Use Permit No. 259 for
the reasons set forth in said reports; and
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WHEREAS, on January 12, 1993, pursuant to appearance
by, and a request received from, Holgersen at the time and place
fixed for said public hearing, the City Council postponed and
rescheduled such public hearing for February 9, 1993, and notice
of such rescheduled public hearing was duly mailed to the
interested parties by the City Clerk; and
WHEREAS, on February 9, 1993, the City Council did
conduct a duly noticed public hearing pursuant to Section
18.03.091 of the Anaheim Municipal Code to consider the possible
termination or modification of Conditional Use Permit No. 259 and
did give all persons interested therein an opportunity to be
heard and did receive evidence, testimony and reports thereon;
and
WHEREAS, the City Council finds, after due
consideration of the evidence, testimony and reports received at
said public hearing that:
1. Conditional Use Permit No. 259 ("CUP 259") was approved
by City Council Resolution No. 62R-690 on July 24,
1962, and was amended by City Council Resolution No.
63R-57 on January 22, 1963.
2. CUP 259 authorizes two distinct and separate
conditional uses on the subject Property, to wit: (i) a
"Hofbrau Restaurant for the sale of food, and
incidentally for the sale of beer," and (ii) a repair
garage.
3. Since 1971, the premises commonly known as 1007 East
Balsam Avenue, Anaheim, california (the "Premises"),
which Premises are in part the subject of CUP 259, have
been leased by the owner thereof to Holgersen who
currently operates the Premises as an establishment
known, and hereinafter referred to, as "Foxey's."
4. Condition No. 4 of CUP 259 as approved by City Council
Resolution No. 62R-690 and amended by city Council
Resolution No. 63R-57 requires that CUP 259 is granted
for a "hofbrau operation and the sale of food, and
incidentally for the sale of beer" on the Premises.
5. Since at least August 20, 1991, and continuing to the
present date, neither the Premises nor any other
portion of the Property has been, nor is being,
operated as a restaurant for the sale of food.
6. Since at least August 20, 1991, said hofbrau restaurant
use of the Property as authorized by CUP 259 has ceased
to exist.
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7. The portion of the Property authorized as a "hofbrau
restaurant" has been since at least August 20, 1991,
and continues to this date to be, operated as a beer
bar known as "Foxey's" which establishment is being
operated primarily, if not exclusively, for the sale of
beer and incidentally, if at all, for the sale of food.
8. For the period commencing not later than August 20,
1991, and continuing through at least October 23, 1992
(the "Investigation Period") such beer bar ("Foxey's")
operated, and continues to operate, with live
entertainment but did not regularly provide meals or
food other than pre-packaged snacks available in a
vending machine located on the premises.
9. Packaged sandwiches were apparently available on
the Premises during a portion of the Investigation
Period but such sandwiches were discontinued prior to
October 23, 1992.
10. Throughout the Investigation Period, patrons of the
beer bar were routinely advised by the waitresses
either that no food is available or that the only food
available was "frozen chicken parts" which no one would
want to eat.
11. Throughout the Investigation Period not less than six
(6) different female employees (waitresses) at Foxey's
regularly, and routinely, engaged in the conduct of
exposing their breasts and/or buttocks to patrons of
the establishment for the purpose of entertaining
patrons at Foxey's.
12. Any business characterized by activities involving the
exposure of the female breasts or buttocks constitutes
an "adult business" within the meaning of Section
18.89.020 of the Anaheim Municipal Code.
13. Such "adult business" uses are prohibited, and are
violations of the Anaheim Municipal Code, unless a
conditional use permit is expressly issued therefor
pursuant to Section 18.89.030 of the Anaheim Municipal
Code.
14. Neither "Foxey's" nor any other business on the
Property has been issued a conditional use permit
for an "adult business" use pursuant to Section
18.89.030 of the Anaheim Municipal Code.
15. Section 4.18.030 of the Anaheim Municipal Code
prohibits dancing and other entertainment without an
entertainment permit issued by the City of Anaheim.
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16. On September 16, 1991, Holgersen applied to the City of
Anaheim for an entertainment permit to allow dancing
girls to perform on the Premises.
17. On June 12, 1992, the City of Anaheim denied the
aforesaid application for an entertainment permit for
Foxey's.
18. On June 30, 1992, Holgersen appealed the denial of the
aforesaid entertainment permit application by the city
of Anaheim. Said appeal is currently pending.
19. Throughout the Investigation Period no valid
entertainment permit had been issued by the City of
Anaheim for, or was in effect at, "Foxey's" to lawfully
allow entertainment on the Premises.
20. Section 4.18.140 of the Anaheim Municipal Code
prohibits, and makes it a misdemeanor for any waitress
to expose her breasts or buttocks while acting as an
employee of such establishment.
21. The Property, including the Premises, is now, and at
all times since at least July 24, 1962 has been,
located in the industrial zone of the City of Anaheim
(formerly known as the "M-i" and now known as the "ML"
Limited Industrial Zone).
22. Restaurants are conditionally permitted uses in the
"ML" Limited Industrial Zone of the City of Anaheim
pursuant to Anaheim Municipal Code Section
18.61.050.390. At all times since at least July 24,
1962, restaurants have been a conditional use in such
zone pursuant to former "M-i" Zone regulations
contained in former Chapter 18.52 of the Anaheim
Municipal Code.
23. Beer bars are neither permitted nor conditionally
permitted uses of property in the "ML" (Limited
Industrial) Zone of the City of Anaheim under Anaheim
Municipal Code Sections 18.61.020 and 18.61.050. Beer
bars have been neither permitted nor conditionally
permitted uses of the Premises since at least July 24,
1962 under former "M-i" Zone regulations contained in
former Chapter 18.52 of the Anaheim Municipal Code.
24. On July 24, 1962, the Anaheim Municipal Code did not
contain a definition of the term "restaurant;" however,
CUP 259, by its own terms, expressly provided that the
Premises be operated as a "restaurant for the sale of
food, and incidentally for the sale of beer."
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25. Condition No. 5 of CUP 259 as approved by City Council
Resolution No. 62R-690, as amended, requires that the
Property shall be developed substantially in accordance
with the exhibit on file with the City of Anaheim, made
a part of the Conditional Use Permit No. 259 file,
which exhibit on file requires that eighteen (18) off-
street parking spaces (10' x 20' in size) be maintained
for the joint use of the hofbrau restaurant and the
repair garage.
26. Since the approval of CUP 259, and without the consent
or approval of the City of Anaheim, a six foot high
chain link fence and gate has been installed and
maintained across the parking area in a manner which
segregates, or appears to the general public (including
patrons of "Foxey's") to segregate, thirteen (13) of
the required off-street parking spaces for the use of
the repair garage and leaving only five (5) off-street
parking spaces generally and reasonably available for
patrons of "Foxey's."
27. The business hours of the repair garage are generally
7:30 a.m. to 5:30 p.m., Monday through Friday. During
the Investigation Period, the gate was customarily
locked after the repair garage closed, thereby
rendering such parking spaces unavailable for patrons
of "Foxey's."
28. During the most recent inspection of the Premises by
Anaheim Code Enforcement Officer Yourstone on January
27, 1993, at approximately 7:00 p.m. during which time
Foxey's was open for business, the gate was locked and
the required off-street parking spaces were unavailable
for patrons of Foxey's.
29. The aforesaid fence and gate are not shown on the
exhibit on file with the City of Anaheim in the
Conditional Use Permit No. 259 file, and such fence and
gate have not been approved by the City Council as an
amendment or modification to such exhibit.
30. Not later than September 6, 1991, Holgersen was advised
by the City of Anaheim that the business must be run as
a restaurant for the sale of food; an entertainment
permit was required for live entertainment; exposure of
private body parts by waitresses or entertainers was
not permitted; and various other violations of law must
be corrected or the business must cease operation.
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31. Since September 6, 1991, the aforesaid live
entertainment, including exposure of breasts and
buttocks by waitresses and entertainers, continued to
occur on a regular basis on the Premises at Foxey's
through at least October 23, 1992.
32. Since September 6, 1991, and continuing to the present,
the Premises at Foxey's have continued to be operated
substantially, if not solely, as a beer bar with only
incidental, if any sale of food prepared or served on
the Premises.
33. The "surveys" submitted as evidence on behalf of
Holgersen are not persuasive to refute the evidence
that the Premises are not being operated as a
"restaurant for the sale of food, and incidentally for
the sale of beer," for the following reasons:
(a) none of the "surveys" are sworn statements
under oath and all are hearsay;
(b) all of the "surveys" are dated as of January,
1993, which is over two months after the Investigation
Period and after the initiation of these proceedings;
(c) all of the "surveys" were expressly prepared
for purposes of this hearing;
(d) of the 76 "customer surveys," 46 (over 60% of
the total number) indicated the patron surveyed had
never purchased any food whatsoever at Foxey's;
(e) of the 30 patrons surveyed who indicated they
had purchased some type of food in Foxey's, only one
indicated he had purchased any item as substantial as a
sandwich; and
(f) none of the other 29 patrons indicated what
type of food had allegedly been purchased at Foxey's or
whether it came from a vending machine or was prepared
on the Premises.
34. The evidence introduced by Holgersen concerning
Conditional Use Permit No. 1851 (Foxey's Exhibit 9) and
Conditional Use Permit No. 3145 (Foxey's Exhibit 10) is
not persuasive because both of said Permits were
approved for the conversion of restaurants to cocktail
lounges in the "CL" Commercial Limited Zone of the City
of Anaheim. Such establishments are conditional
uses in such "CL" Zone pursuant to Section
18.44.050.010 of the Anaheim Municipal Code. On the
other hand, the Premises at Foxey's are located in
the "ML" (formerly "M-I") Zone wherein cocktail lounges
(and beer bars) are neither permitted nor conditionally
permitted uses.
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35. The original notices of public hearing for both the
Planning Commission and City Council public hearings in
1962 described the proposed use of the Property as
"Hofbrau and repair garage" without further description
or elaboration.
36. The original conditional use permit application
submitted by the Walkers in 1962 requested a "hofbrau"
use but did not specifically use the term "restaurant"
to describe or define "hofbrau." However, CUP 259
specifically limited the use of the Premises to a
"restaurant for the sale of food, and incidentally for
the sale of beer."
37. In conjunction with the adoption of City Council
Resolution No. 92R-24 concerning Variance No. 1323, the
Anaheim city Attorney stated at the City Council public
hearing held concerning such Variance that certain food
items such as packaged sandwiches and microwave heated
pizza constituted "substantial food items" under the
definition of "restaurant" specifically set forth in
Condition No. 3 of said Variance (City's Exhibit 61).
Such discussion and definition is immaterial and not
persuasive in these proceedings because the definition
of "restaurant" discussed in Variance No. 1323 is
specifically limited to the conditions of that
entitlement. On the other hand, the express language
of CUP 259 and Condition No. 4 thereof provides that
the sale of beer must be incidental to the sale of
food--a requirement not expressly present in Variance
No. 1323.
NOW, THEREFORE, BE IT RESOLVED by the City Council of
the City of Anaheim that Conditional Use Permit No. 259 is hereby
modified, and Resolution No. 62R-690, as amended by Resolution
No. 63R-57, is hereby further amended, to terminate and revoke
approval of the "hofbrau restaurant for the sale of food, and
incidentally for the sale of beer" use of the Premises, for each
of the following separate and wholly independent reasons:
1. That the use of the Premises as a "hofbrau restaurant"
has ceased to exist based upon Findings Nos. 1, 2, 3,
4, 5, 6, 7, 8, 9 and 10 above.
2. That CUP 259 is being or recently has been exercised
contrary to the terms of Condition No. 4 of said Permit
based upon Findings Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9 and
10 above.
3. That CUP 259 is being or recently has been exercised
contrary to the terms of Condition No. 5 of said Permit
based upon Findings Nos. 25, 26, 27, 28 and 29 above.
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4. That CUP 259 is being or recently has been exercised in
violation of Section 18.89.030 of the Anaheim Municipal
Code based upon Findings Nos. 11, 12, 13, 14 and 31
above.
5. That CUP 259 is being or recently has been exercised in
violation of Section 4.18.030 of the Anaheim Municipal
Code based upon Findings Nos. 15, 16, 17, 18 and 19
above.
6. That CUP 259 is being or recently has been exercised in
violation of Section 4.18.140 of the Anaheim Municipal
Code based upon Findings Nos. 11, 20 and 31 above.
7. That CUP 259 is being or recently has been exercised in
violation of Sections 18.61.020 and 18.61.050 of the
Anaheim Municipal Code based upon Findings Nos. 7, 21,
22, 23 and 32 above.
8. That such modification of CUP 259 is reasonably
necessary to protect the public peace, health, safety
or general welfare since such Permit is being exercised
contrary to the express conditions of approval thereof
and in violation of Sections 18.61.020, 18.61.050,
18.89.030, 4.18.030, and 4.18.140 of the Anaheim
Municipal Code based upon Findings Nos. 1 through 37
above.
BE IT FURTHER RESOLVED that Resolution No. 62R-690
approving Conditional Use Permit No. 259 is hereby amended to
delete therefrom all language and references "permitting the
establishment of Hofbrau Restaurant for the sale of food, and
incidentally for the sale of beer."
BE IT FURTHER RESOLVED that the conditions of approval
of Conditional Use Permit No. 259, as approved by Resolution No.
62R-690 and amended by Resolution No. 63R-57, are hereby amended
in their entirety to read as follows:
"1. That the owners of subject property and Orange County
Flood Control District dedicate Balsam Avenue to the
city of Anaheim, and that the deed be accepted and
recorded by the City.
2. That the owners of subject property shall pay to the
city of Anaheim the sum of $2.00 per front foot, along
Balsam Avenue, for street lighting purposes.
3. That this permit is granted solely for an automotive
repair garage.
4. That all operations in connection with the repair
10
garage and any activities in the garage shall be wholly
contained within the building at all times.
5. That the owners of subject property shall deed to the
City of Anaheim an easement for storm drain purposes
upon, along, over and across subject property as
required and determined necessary by the City Engineer.
6. That subject property shall be developed substantially
in accordance with the exhibit on file with the City of
Anaheim, made a part of the Conditional Use Permit No.
259 file (except that this Permit shall not authorize
development and operation of the "hofbrau restaurant"
shown on said exhibit).
7. That conditions Nos. i and 2 above-mentioned shall be
complied with within a period of 180 days from July 24,
1962, of such further time as the City Council may
grant."
BE IT FURTHER RESOLVED that, except as herein expressly
amended, Conditional Use Permit No. 259 shall remain in full
force and effect with regard to the "repair garage" use only.
BE IT FURTHER RESOLVED that the City Council finds and
determines that the action taken by this resolution is based
upon, and would have been taken for, each of the separate reasons
hereinabove specified independent of any of the other reasons
specified herein.
BE IT FURTHER RESOLVED that the time within which
reheatings must be sought is governed by the provisions of
Section 1.12.100 of the Anaheim Municipal Code and the time
within which judicial review of final decisions must be sought is
governed by section 1094.6 of the Code of civil Procedure and
Section 18.02.060 of the Anaheim Municipal Code.
THE FOREGOING RESOLUTION is approved and adopted by the
City Council of the City of Anaheim this 9th day of February,
1993.
MAYO~OF THE CITY~~OANAHEIM
ATTEST:
CITY CLER~ OF THE CITY OF ANAHEIM
JLW:lm
RCUP259.12
11
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF ANAHEIM )
I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that the foregoing Resolution
No. 93R-32 was Introduced and adopted at a regular meeting provided by law, of the Anaheim City Council
held on the 9th day of February, 1993, by the following vote of the members thereof:
AYES: COUNCIL MEMBERS: Feldhaus, Hunter, Pickler, Simpson, Daly
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
AND I FURTHER CERTIFY that the Mayor of the City of Anaheim signed said Resolution No. 93R-32 on the -~,~
loth day of February, 1993.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Anaheim
this loth day of February, 1993.
CITY CLERK OF THE CITY OF ANAHEIM
(SEAL)
I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that the foregoing Is the original
of Resolution No. 93R-32 was duly passed and adopted by the City Council of the City of Anaheim on
February 9, 1993.
CITY CLERK OF THE CITY OF ANAHEIM