95-193 RESOLUTION NO. 95R-193
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF ANAHEIM TERMINATING CONDITIONAL USE PERMIT
NUMBER 284 AND DECLARING PLANNING COMMISSION
RESOLUTION NUMBER 455, SERIES 1962-1963, NULL
AND VOID.
WHEREAS, on August 20, 1962, the Planning Commission of
the City of Anaheim (the "Planning Commission") adopted its
Resolution Number 455, Series 1962-1963, to approve Conditional
Use Permit No. 284 to permit the establishment of a restaurant
and cocktail lounge on the subject property at 420 South
Brookhurst Street ("C.U.P. No. 284"); and
WHEREAS, On May 1, 1995, the Planning Commission set
C.U.P. No. 284 for public hearing to consider its revocation or
modification pursuant to the provisions of Section 18.03.091 of
the Anaheim Municipal Code because the Code Enforcement Division
of the Planning Department and the Police Department had received
numerous complaints from residents living near the E1 Paraiso
Restaurant; and
WHEREAS, on July 10, 1995, the Planning Commission held
a duly noticed public hearing to hear and consider evidence for
and against the proposed revocation or modification of C.U.P. No.
284, which hearing was continued to August 7, 1995; and
WHEREAS, on August 7, 1995, by its Resolution No. PC-
95-93, the Planning Commission terminated C.U.P. No. 284; and
WHEREAS, the owner of E1 Paraiso, filed a timely appeal
of the Planning Commission's decision to terminate the
conditional use permit; and
WHEREAS, on September 12, 1995, by motion, the City
Council appointed a Hearing Officer to conduct a hearing on the
matter and make recommendations to the City Council pursuant to
Anaheim Municipal Code Section 1.12.110; and
WHEREAS, a Notice of the Public Hearing before a
Hearing Officer regarding the appeal of the Planning Commission's
decision was duly given by the City Clerk; and
WHEREAS, on October 11, 1995, the public hearing on the
appeal of the Anaheim City Planning Commission's decision to
revoke C.U.P. No. 284 was held. Witnesses were presented by both
sides and evidence, both oral and written, was received.
Testimony was also received from the public. At the conclusion
of the testimony, the Hearing officer closed the evidentiary
portion of the hearing and continued the public hearing to
October 27, 1995, to permit the court reporter to complete the
transcript of the proceedings and requested each side to submit
proposed Findings of Fact and Recommendations; and
WHEREAS, on October 27, 1995, the public hearing was
reopened for the limited purpose of receiving proposed Findings
of Fact and Recommendations from each side. Thereafter, the
public hearing was closed; and
WHEREAS, the Hearing officer has, in accordance with
Section 1.12.110 of the Anaheim Municipal Code, prepared, or
caused to be prepared, the administrative record of the hearing;
and
WHEREAS, the Hearing Officer, having considered the
testimony of witnesses at the hearing, exhibits received at the
hearing, arguments and proposed findings of fact and
recommendations of counsel, has prepared Findings of Fact and
Recommendations, pursuant to Anaheim Municipal Code Section
1.12.110 (the "Findings of Fact"); and
WHEREAS, on November 15, 1995, the city received the
submitted the administrative record and the proposed Findings of
Fact submitted by the Hearing officer; and
WHEREAS, on November 28, 1995, the City Council did
consider the administrative record and the written
recommendations of the Hearing Officer.
NOW, THEREFORE, BE IT RESOLVED by the City Council of
the City of Anaheim that the City Council hereby adopts those
certain findings as set forth in Paragraphs 1 through 22,
inclusive, of the Findings of Fact attached hereto, marked
Exhibit A, and incorporated herein by this reference as if set
forth in full.
BE IT FURTHER RESOLVED that the City Council denies the
appeal and, based upon the adopted Findings of Fact, C.U.P. No.
284 is hereby terminated on the following grounds, authorized by
Anaheim Municipal Code Section 18.03.092:
".040 That the permit or variance granted is being,
or recently has been exercised contrary to the terms or
conditions of such approval, o__r in violation of any
statute, ordinance, law or regulation." (emphasis
added)
".050 That the use or variance for which the
approval was granted has been exercised as to be
detrimental to the public health or safety, o__r so as to
constitute a nuisance." (emphasis added)
2
finding that there is credible evidence to support all four
alternatives provided for under subsections .040 and .050., and
further finding that the strongest and most consistent evidence
supports the finding that the permit is being, or recently has
been exercised, contrary to the terms and conditions of approval.
BE IT FURTHER RESOLVED that the City Council hereby
finds and determines that it would have terminated C.U.P. No. 284
upon each of the grounds and reasons hereinabove adopted.
BE IT FURTHER RESOLVED that Resolution Number 455,
Series 1962-1963 be, and the same is hereby, declared null and
void.
BE IT FURTHER RESOLVED that the time within which
rehearings 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 the provisions of Section 1094.6 of the Code of Civil
Procedure and Anaheim City Council Resolution No. 79R-524.
THE FOREGOING RESOLUTION is approved and adopted by the
City Council of the City of Anaheim this28thday of November,
1995.
MAYOR OF THE IM
ATTEST:
14829.1\SMA)~N\November 20, 1995 3
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. 95R-193 was introduced and adopted at a regular meeting provided by law, of the Anaheim City Council
held on the 28th day of November, 1995, by the following vote of the members thereof:
AYES: MAYOR/COUNCIL: Tait, Zemel, Feldhaus, Lopez, Daly
NOES: MAYOR/COUNCIL: None
ABSENT: MAYOR/COUNCIL: None
AND I FURTHER CERTIFY that the Mayor of the City of Anaheim signed said Resolution No. 95R-193 on
the 28th day of November, 1995.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Anaheim
this 28th day of November, 1995.
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 Resoiution No. 95R-193 was duly passed and adopted by the City Council of the City of Anaheim on
November 28th, 1995.
CITY CLERK OF THE CITY OF ANAHEIM
IN RE: REVOCATION OR
MODIFICATION OF CONDITIONAL
USE PERMIT NO. 284 UNDER WHICH
EL PARAISO RESTAUR3LNT OPERATES
ADMINISTRATIVE RECORD OF HEARING OF APPEAL OF DECISION OF
PL~_NNING COMMISSION TO REVOKE CONDITIONAL USE PERMIT NO. 284 HELD
IN THE CITY COUNCIL CHAMBER OF THE CITY OF ANAHEIM ON OCTOBER 11,
1995
This matter came on for hearing on October 11, 1995, on the
appeal of E1 Paraiso Restaurant from a decision of the Anaheim
Planning Commission to revoke Conditional Use Permit No. 284
under which the E1 Paraiso Restaurant operates. Ralph B. Saltsman
of Soloman, Saltsman & Jamieson appeared on behalf of Appellant
and Selma J. Mann, Deputy City Attorney, appeared on behalf of
the City of Anaheim. The Hearing Officer, Victor J. Kaleta,
has, in accordance with Section 1.12.110 of the Anaheim Municipal
Code, has prepared, or caused to be prepared, the administrative
record of such hearing which consists of the following documents
which are attached hereto:
1. Transcript of the hearing prepared by Adele C. Frazier, Hahn
& Bowerstock Corporation, Certified Court and Deposition
Reporters, consisting of 172 pages together with a Condensed
Transcript and Concordance.
2. Exhibits entered into evidence by the City of Anaheim at
said hearing as follows:
Exhibit Description
City 1 Letter to Victor J. Kaleta, Hearing Officer, from
City Attorney's Office, dated October 5, 1995,
entitled E1 Paraiso Hearing Procedures Conditional
Use Permit No. 284. (4 pages)
City 2 Attachment 1 to City 1 - RESOLUTION NO. PC95-93, A
RESOLUTION OF THE ANAHEIM CITY PLANNING COMMISSION
TERMINATING ALL PROCEEDINGS IN CONNECTION WITH
CONDITIONAL USE PERMIT NO. 284 (3 pages)
EXHIBIT "A"
City 3 Attachment 2 to City 1 - Letter to City Manager
from Ralph Barat Saltsman, dated August 18, 1995,
entitled E1 Paraiso - CUP 284; Hearing Date:
August 7, 1995, appealing the Planning Commission
decision together with letter to City Clerk, dated
August 23, 1995, transmitting appeal fee. (3
pages)
City 4 Attachment 3 to City 1 - Anaheim Municipal Code §
1.12.100, APPOINTMENT OF HEARING OFFICER BY CITY
COUNCIL (1 page)
City 5 Attachment 4 to City 1 - Excerpt from the minutes
of Anaheim City Council Meeting September 12,
1995, appointing Hearing Officer to conduct a
hearing relating to E1 Paraiso's appeal (2 pages)
City 6 Attachment 5 to City 1 - NOTICE OF PUBLIC HEARING
~ BEFORE A HEARING OFFICER, APPEAL OF CONDITIONAL
USE PERMIT NO. 284, (EL PARAISO RESTAUR3~NT) (3
pages)
City 7 Attachment 6 to City 1-- Anaheim Municipal Code §
18.03.082, EFFECT OF APPEAL OR REVIEW (1 page)
City 8 Attachment 7 to City 1 - Anaheim Municipal Code §
18.03.091, TERMINATION OR MODIFICATION OF
AMENDMENTS, CONDITIONAL USE PERMITS OR VARIANCES
(PROCEDURE) (1 page)
City 9 Attachment 8 to City 1 Anaheim Municipal Code §
18.03.092, TERMINATION OR MODIFICATION OF
CONDITIONAL USE PERMITS OR VARIANCES (GROUNDS) (1
page)
~, City 10 Attachment 9 to City 1 (Pages 1 to 7) - Staff
Report to the Planning Commission, July 10, 1995,
Item No. 7 (7 pages)
City 11 Attachment 9 to City 1 (Pages 8 to 9) - RESOLUTION
NO. 455, SERIES 1962-63, A RESOLUTION OF THE CITY
PLANNING COMMISSION OF THE CITY OF ANAHEIM THAT
CONDITIONAL USE PERMIT NO. 284 BE GRANTED (2
pages)
City 12 Attachment 9 to City 1 (Pages 10 to 12) - Letter
to Eva Fragoso from William A. Sell, dated May 25,
1995, entitled Your application for an
entertainment permit for E1 Paraiso, located at
420 S. Brookhurst St., Anaheim, CA 92804 (3 pages)
2
City 13 Attachment 9 to City 1 (Pages 13 to 14) Anaheim
Police Report regarding incident at E1 Paraiso on
December 1, 1994 (2 pages)
City 14 Attachment 9 to City 1 (Pages 15 to 19)
Memorandum to Steve Walker from Randy West, dated
June 24, 1995, entitled Pink Cadillac, Inc., 420
S. Brookhurst St., Anaheim, dba: E1 Paraiso (5
pages)
City 15 Attachment 9 to City 1 (Pages 20 to 26) Staff
Report to the Planning Commission, August 7, 1995,
Item No. 3 (7 pages)
City 16 Attachment 9 to City 1 (Pages 39 to 40) Letter
to Anaheim Planning Commission from Ralph Barat
Saltsman, dated July 27, 1995, entitled E1 Paraiso
- Public Hearing on CUP 284, Hearing Date: August
~ 7, 1995 (2 pages)
City 17 Application for Conditional Use Permit including
Exhibits 1 to 4 showing the proposed restaurant
and cocktail lounge and Application for Building
Permit dated December 21, 1989, including plot
plan (12 pages)
City 18 Petition for Conditional License for Pink
Cadillac, Inc. from Department of Alcoholic
Beverage Control, dated September 10, 1991 (3
pages)
City 19 Letter to Dale Rasmussen from Rolf J. Rolnicki,
dated April 20, 1995, entitled Pink Cadillac, Inc.
dba E1 Paraiso, License No. 47-233859 (3 pages)
~, City 20 Department of Alcoholic Beverage Control, Report
of Investigation, dated September 7, 1993,
relating to the E1 Paraiso Restaurant (2 pages)
City 21 Business and Professions Code ~ 23038, "Bona fide
public eating place"; "Meals"; "Guests" (1 page)
City 22 Anaheim Police Report regarding incident at E1
Paraiso on December 15, 1994 (5 pages)
City 23 Map of location of E1 Paraiso Restaurant and
properties in the vicinity thereof (1 page)
City 24 Business and Professions Code §§ 23800 to 23805 (6
pages)
3
3. Exhibits entered into evidence by the Appellant, E1 Paraiso
Restaurant at said hearing as follows:
Exhibit Description
Appellant 1 Two menus for the E1 Paraiso Restaurant - one a
large double fold menu of four pages of text and a
front and back cover, the other a double sided
single sheet with pictures on one side and text on
the other (8 pages)
Appellant 2 Representative Buffet Ticket from E1 Paraiso
Restaurant (1 page)
4. Proposed Findings of Fact and Recommendations from City. (15
pages)
5. Proposed Findings of Fact and Recommendations from
Appellant. (7 pages)
6. Findings of Fact and Recommendations of Hearing Officer to
Anaheim City Council pursuant to Anaheim Municipal Code §
1.12.110. (17 pages)
I certify that the above listed documents which are attached
hereto constitute the true and complete administrative record for
the above captioned hearing.
Victor J. Ka±eta
Hearing Officer
4
IN RE: REVOCATION OR )
MODIFICATION OF CONDITIONAL )
USE PERMIT NO. 284 UNDER WHICH )
EL PARAISO RESTAURANT OPERATES )
)
FINDINGS OF FACT AND RECOMMENDATIONS OF
HEARING OFFICER TO ANAHEIM CITY COUNCIL
PURSUANT TO A.M.C. § 1.12.110
This matter came on for hearing on October 11, 1995, on the
appeal of Pink Cadillac, Inc. dba E1 Paraiso Restaurant from a
decision of the Anaheim Planning Commission to revoke Conditional
Use Permit No. 284 under which the E1 Paraiso Restaurant
operates. Ralph B. Saltsman of Soloman, Saltsman & Jamieson
appeared on behalf of Appellant and Selma J. Mann, Deputy City
Attorney, appeared on behalf of the City of Anaheim. The Hearing
Officer, Victor J. Kaleta, having considered the testimony of
witnesses at the hearing, exhibits received at the hearing,
arguments and proposed findings of fact and recommendations of
counsel, finds as follows:
BACKGROUND FINDINGS
1. On August 20, 1962, the Anaheim Planning Commission adopted
Resolution No. 455, Series 1962-1963, approving Conditional Use
Permit No. 284 to permit the establishment of a restaurant and
cocktail lounge on the subject property at 420 South Brookhurst
Street, Anaheim, California. (City Exhibit 11.)
2. When approved, the plans submitted for the restaurant showed
a building of 5842 square feet, oriented east/west with the front
to the west, the main dining room and kitchen on the first floor
and a banquet room on the partial second floor or mezzanine at
the rear of the building. ( City Exhibit 17, Part 1, Exhibits 1
to 4 thereto.)
3. From 1963 to August 1989, the subject property was operated
as by the current property owner of record, Gock Woey Jung, as
the Sampan Cantonese Restaurant. (City Exhibit 2.)
4. On Deceraber 21, 1989, an application was made for a building
permit for an interior remodel of an existing restaurant, the
subject restaurant. The floor plan layout submitted with the
application indicates the restaurant had been expanded prior
thereto. The plans also indicate a division of the first floor
into north and south dining rooms. At this time, the total floor
area of the restaurant was approximately 9525 square feet. (City
Exhibit 17, Part 2; City Exhibit 2; Page 23, lines 11-15.)
5. On or about August 1989, the operation of the restaurant was
taken over by Pink Cadillac, Inc. and was initially operated as
the Pink Cadillac Restaurant and later as the E1 Paraiso
Restaurant. (City Exhibit 2.)
6. In July 1990, thirty signed letters of complaint from
adjacent residents were submitted to the Anaheim City Council
requesting the City Council to initiate an investigation into the
business operation located on the subject property (former Pink
Cadillac Restaurant operated by Pink Cadillac, Inc.) and to
consider revoking the entertainment permit issued to said
establishment because of violations of the Anaheim Municipal
Code. As a result of the City's investigation, an entertainment
permit for the Pink Cadillac Restaurant was denied in September
1990. (City Exhibit 2.)
7. In October 1990, Pink Cadillac, Inc. applied_for a business
license and entertainment permit at the subject property under
the name E1 Paraiso Restaurant and a one year entertainment was
issued and subsequently reissued until March 1995 at which time
the entertainment permit was denied based on numerous violations
of the Anaheim Municipal Code and the California Business and
Professions Code. (City Exhibit 2.)
8. On May 1, 1995, the Anaheim City Planning Commission set
Conditional Use Permit No. 284 for public hearing to consider its
revocation or modification because the Code Enforcement Division
of the Planning Department and the Police Department had received
numerous complaints from residents living near the E1 Paraiso
Restaurant and said the restaurant has an extensive history of
police activity; and that, therefore, the use for which approval
was originally granted was being exercised in manner which may be
detrimental to the public health, public safety or general
welfare, or so as to constitute a public nuisance. (City Exhibit
2.)
9 On June 16, 1995, the property owner of record, Gock Woey
Jung, and the holder, user and/or permittee of the subject
property, Eva Fragoso for Pink Cadillac, Inc. dba E1 Paraiso
Restaurant, were notified in writing, via certified mail, of the
date, place and time of the public hearing to consider the
revocation or modification of Conditional Use Permit No. 284.
(City Exhibit 2.)
10. On July 10, 1995, the Anaheim City Planning Commission held
a duly noticed public hearing to hear and consider evidence for
and against the proposed revocation or modification of
2
Conditional Use Permit No. 284. Said public hearing was continued
to August 7, 1995, in order to give the property owner and/or
holder, user or permittee of the subject property the opportunity
to obtain copies of Police and/or Code Enforcement reports. (City
Exhibit 2.)
11. On August 7, 1995, the Anaheim City Planning Commission
adopted Resolution No. PC95-93, revoking Conditional Use Permit
No 284. (City Exhibit 2.)
12 On August 18, 1995, Ralph B. Saltsman of Soloman, Saltsman &
Jamieson, filed an appeal of the Planning Commission's decision
to revoke Conditional Use Permit No. 284. Said appeal was
perfected by the payment of the required fee on August 23, 1995.
(City Exhibit 3.)
13. On September 12, 1995, the Anaheim City Council, by motion,
referred the appeal of the Planning Commission's decision to
revoke Conditional Use Permit No. 284 to a Hearing Officer
(Victor Kaleta) as permitted by Anaheim Municipal Code § 1.12.110
with the hearing to be held on Wednesday, October 11, 1995, in
the Council Chamber. (City Exhibit 5.)
14. On September 28, 1995, the public hearing was duly noticed
by Leonora N. Sohl, City Clerk. (City Exhibit 6.)
15. On October 11, 1995, the public hearing on the appeal of the
Anaheim City Planning Commission's decision to revoke Conditional
Use Permit No. 284 was held. Witnesses were presented by both
sides and evidence, both oral and written, was received.
Testimony was also received from the public. At the conclusion of
the testimony, the Hearing Officer closed the evidentiary portion
of the hearing and continued the public hearing to October 27,
1995, to permit the court reporter to complete the transcript of
the proceedings and requested each side to submit proposed
Findings of Fact and Recommendations.
16. On October 27, 1995, the public hearing was reopened for the
limited purpose of receiving proposed Findings of Fact and
Recommendations from each side. Thereafter, the public hearing
was closed.
GROUNDS FOR TERMINATION OR MODIFICATION OF CONDITIONAL USE
PERMITS
The grounds for terminating or modifying a conditional use
permit are set forth in Anaheim Municipal Code § 18.03.092. In
the instant case, the potential grounds for termination are set
forth in subsections .040 and .050 which read as follows:
".040 That the permit or variance granted is being,
or recently has been exercised contrary to the terms or
3
conditions of such approval, o__r in violation of any
statute, ordinance, law or regulation." (emphasis
added)
".050 That the use or variance for which the
approval was granted has been so exercised as to be
detrimental to the public health or safety, o__r so as to
constitute a nuisance." (emphasis added)
The potential grounds for modification are set forth in
subsection .060 which reads as follows:
".060 That any such modification, including the
imposition of any additional conditions thereto, is
reasonably necessary to protect the public peace,
health, safety or general welfare, o__r necessary to
permit reasonable operation under the conditional use
permit or variance granted." (emphasis added)
FINDINGS RELATIVE TO REVOCATION OR MODIFICATION OF CONDITIONAL
USE PERMIT NO. 284
CONDITIONAL USE PERMIT NO. 284 IS BEING EXERCISED, OR RECENTLY
HAS BEEN EXERCISED, CONTRARY TO THE TERMS OR CONDITIONS OF
APPROVAL
18. Conditional Use Permit No. 284 under which the E1 Paraiso
Restaurant operates was granted for a restaurant and cocktail
lounge. Operation of the premises as a restaurant and cocktail
lounge was explicitly contemplated as a term or condition in the
grant of the conditional use permit. The E1 Paraiso Restaurant
is not, or recently has not, been operated as a restaurant. Its
operation is much more analogous to that of a nightclub or public
dance hall. This finding is based upon the following evidence:
A. Conditional Use Permit No. 284 was issued by the
Planning Commission in 1962 for a restaurant and cocktail
lounge which opened in 1963 as The Sampan Cantonese
Restaurant. (City Exhibit 2; City Exhibit 11.)
B. That a restaurant was explicitly contemplated is shown
by the first finding of the Planning Commission that the
proposed use was to "establish a restaurant and cocktail
lounge" and Condition 7. "Development substantially in
accordance with Exhibit Nos. 1, 2, 3 and 4." since said
exhibits clearly indicate an establishment with an emphasis
on the serving of food. (City Exhibit 11; City Exhibit 17.)
C. Edgar Fragoso testified that the E1 Paraiso Restaurant
is closed three days per week (Monday, Tuesday and Thursday)
which is atypical of a restaurant. (Page 156, line 10
through Page 157, line 10.)
4
D. Investigator Randy West, of the Anaheim Police
Department Vice Detail testified that he inspected the
premises on Friday, March 10, 1995 with representatives from
Code Enforcement, the Department of Alcoholic Beverage
Control (ABC) and the Health Department at approximately
9:30 p.m., and that although the restaurant was open, there
were no customers and no food in the kitchen. He indicated
that they had looked in refrigerators and all about the
kitchen area. (Page 52, lines 10-24.)
E. Mr. Yourstone, Senior Code Enforcement Officer for the
City, testified that he inspected the business on Saturday,
June 17, 1995, at approximately 8:45 p.m. and that he
observed: (1) that the establishment was closed, with
people waiting outside to be admitted, (2) that no food was
being served, and no food was being prepared, (3) that there
was a very small amount of food in the walk-in cooler, which
appeared insufficient to accommodate a large number of
patrons, (4) that Mr. Santana stated that the restaurant
served a buffet at 9:30, (5) that the area where the buffet
would be served did not have any hot or cold serving tables,
dishes, nor any food being prepared for the buffet, (6) that
there were no place settings in the rooms. (Page 66, line
16 through Page 67, line 25.)
F. The appellant entered into evidence two menus for the
E1 Paraiso Restaurant which indicated an extensive selection
of dishes, the preparation of which would require a large
variety of ingredients to be maintained, eg. oysters,
shrimp, octopus, abalone, Mexican meat pies, sausage, steak,
chicken, pork, red snapper and various sauces. A number of
the dishes offered would require advance preparation. Such
menus are inconsistent with the inspections of Investigator
Randy West on March 10, 1995, and Mr. Yourstone on June 17,
1995, where no or little food was found in the kitchen and
refrigerators (walk-in cooler) and no food was being
prepared. The smaller of the two menus describes the E1
Paraiso as "Restaurant and Nightclub". (Appellant Exhibit
1.)
G. Gil Santana, the general manager of the facility until
June 17, 1995 testified that average patronage on Wednesdays
was approximately 250 people, on Friday, approximately 100
people, on Saturday, approximately 350 people and on Sunday,
approximately 150 to 175 people. The restaurant was closed
on other days. He estimated an average of 10 couples dine
each night, estimating 25 to 20 people on typical Saturdays,
when there are approximately 350 patrons, and 25 to 30
people dining on Sundays, when there are approximately 150
to 175 patrons. Mr. Santana testified that buffet was tried
from time to time on Saturdays to attract patrons to the
establishment: that way we could also have a bigger crowd as
5
other people came in, see some people in the club..." (Page
128, line 5 through Page 133, line 23, emphasis added.) Mr.
Santana's estimates on the disproportionately small number
of patrons eating compared to the total number of patrons
indicates that Mr. Santana is indeed describing a nightclub
that serves food, rather than a restaurant that serves
alcohol. This is very different from the restaurant and
cocktail lounge approved by the Planning Commission in 1962.
H. Ms. Roberta (Robin) Crabb, an investigator with the
State of California Department of Alcoholic Beverage Control
(ABC), went over the history of the location relating to the
current licensee and indicated that licensee has a type 47
liquor license, which is for an "on sale" general eating
establishment. (Page 27, line 1 through Page 28, line 4.)
This is consistent with the City's grant of a conditional
use permit for a restaurant and cocktail lounge. A
different type of license called a "public premises" license
is required for nightclubs and bars. (Page 31, lines 1-5;
Bus. & Prof. Code Sec. 23039.)
I. Ms. Crabb testified that most of the conditions on the
E1 Paraiso conditional license relate to operation of the
business as a bona fide eating place. (Page 28, lines 2-4.)
One of the conditions requires the "[t]he licensee shall
make actual and substantial sales of meals to guests for
compensation and the quarterly gross sales of alcoholic
beverages shall not exceed the gross sales of meals during
the same period." (City Exhibit 18) Ms. Crabb testified
that this condition is imposed when the ABC has concerns
that a place may not be operating as a bona fide restaurant
and providing an adequate supply of food during normal food
hours, based on prior complaints or business operations at
the location. (Page 32, line 18 through Page 33, line 4.)
Ms. Crabb further testified regarding an accusation and
hearing held by the ABC relating to complaints received by
the ABC in February 1994 that E1 Paraiso was selling more
liquor than food, in violation of Condition 02. of the ABC
license, which resulted in imposition of a thirty-day
suspension as a penalty. The licensee is appealing the
sentence imposed as a result of the hearing, but not the
finding of the violation. (Page 29, lines 4-24; Page 36,
lines 11-22.)
J. Investigator Michael D'Anna testified that on December
1, 1994, and December 15, 1994, that he had to pay a $10.00
cover charge to enter the E1 Paraiso Restaurant. (Page 57,
lines 21-22; Page 59, lines 22-23.)
K. Greg Hastings, the City Zoning Director, testified that
the business has been issued a dinner dance permit to allow
patrons to dance as an accessory use. A different kind of
6
permit called a dance hall permit is required in order to
charge a cover charge for permitting patrons to dance. A
dance hall permit requires a separate conditional use permit
which the business does not have. (Page 23, line 24 through
Page 24, line 5.) A "dinner-dancing place is defined in
Anaheim Municipal Code subsection 4.16.010.030 as "a place
where music is provided and the public is permitted to dance
without payment of a fee." (emphasis added) E1 Paraiso has
recently been charging a cover charge, as testified to by
Investigators West and D'Anna, which indicates its operation
is more analogous to that of a dance hall than a restaurant.
(Page 44, lines 5-8; Page 57, lines 21-22; Page 59 lines 22-
23.)
L. Edgar Fragoso, the owner's son, testified regarding the
recent operation of the E1 Paraiso Restaurant, indicating
that changes had been instituted, presumably as a result of
the Planning Commission's action terminating Conditional Use
Permit No. 284, whereby patrons no longer have to pay a
$10.00 cover charge for admission but are required to
purchase a $10.00 coupon entitling them to a buffet meal.
(Page 146 t~rough Page 148.)
The coupon states on its face that it is for a buffet
dinner from 8:00 p.m. through 11:00 p.m. only. (Page 157,
line 24 through Page 158, line 1; Appellant Exhibit 2.) Mr.
Fragoso states that on Saturday night only, the buffet is
moved upstairs at 11:30 p.m.(Page 147, lines 16-20), which
is inconsistent with the language on the face of the coupon
and with Mr. Yourstone's inspection on Saturday, October 7,
1995, at approximately 10:45 p.m., at which time no food was
available. (Page 68, line 12 through Page 70, line 2.)
It is apparent that the buffet coupon is a disguised
cover charge since everyone entering the establishment is
required to purchase one whether they intend to eat the
buffet or not. Further, since Mr. Fragoso testified the
ticket is turned in for the buffet (Page 148, lines 14-20.),
it is unnecessary to require a person to purchase a buffet
ticket if he/she does not intend to eat. The mandatory
purchase requirement shows the true nature of the buffet
ticket is that of a cover charge which is inconsistent with
the operation of a restaurant and cocktail lounge with a
dinner-dancing permit.
M. A letter from Roll L. Rolnicki, an attorney
representing Pink Cadillac, Inc. dba E1 Paraiso, to Dale
Rasmussen, District Administrator, Department of Alcoholic
Beverage Control, states Licensee "has restricted entry to
the premises to those individuals twenty-one and above".
This representation is inconsistent with the operation of a
restaurant with a Type 47 liquor license. (City Exhibit 19)
7
N. Mr. Fragoso testified the E1 Paraiso "runs a line" to
check identification of all persons entering (Page 154, line
25 to Page 155, line 12), a practice which is inconsistent
the operation of a restaurant with a Type 47 liquor license.
CONDITIONAL USE PERMIT NO. 284 IS BEING EXERCISED, OR RECENTLY
HAS BEEN EXERCISED, IN VIOLATION OF A STATUTE, ORDINANCE, LAW OR
REGULATION
19. Conditional Use Permit No. 284 is being exercised, or
recently has been exercised, in violation of a statute,
ordinance, law or regulation. This finding is based upon the
following evidence:
A. Investigator Crabb testified that a May 1991
application for transfer of the stock of Pink Cadillac,
Inc., the owners of the business, to Mrs. Fragoso was
protested by nearby residents, and the transfer was approved
subject to 13 conditions imposed pursuant to the authority
granted to the Department of Alcoholic Beverage Control
(ABC) by Sections 23800 through 23805 of the Business and
Professions Code (Pages 162-165; Page 27, line 1 through
Page 28, line 11.) Condition 02. requires that "It]he
licensee shall make actual and substantial sales of meals to
guests for compensation and the quarterly gross sales of
alcoholic beverages shall not exceed the gross sales of
meals during the same period." (City Exhibit 18, Condition
02.) Ms. Crabb stated this condition is imposed when the ABC
had concerns that a place may not be operating as a bona
fide restaurant and providing an adequate supply of food
during normal food hours, based on prior complaints or
business operations at the location. (Page 32, line 18
through Page 33, line 4.) Ms. Crabb further testified
regarding an accusation and hearing held by the ABC relating
to complaints received by the ABC in February 1994 that E1
Paraiso was selling more liquor than food, in violation of
Condition 02. of the ABC license, which resulted in
imposition of a thirty-day suspension as a penalty. The
licensee is appealing the sentence imposed as a result of
the hearing, but not the finding of the violatigon. (Page
29, lines 4-24; Page 36, lines 11-22.)
Section 23804 of the Business and Professions Code provides
as follows:
"A violation of a condition placed upon a license
pursuant to this article shall constitute the
exercising of a privilege or the performing of an act
for which a license is required without the authority
thereof and shall be grounds for the suspension or
revocation of such license."
8
Consequently, a violation of a condition on the E1 Paraiso
ABC license constitutes "the exercising of a privilege or
the performing of an act for which a license is required
without the authority thereof."
Section 23300 of the Business and Professions Code provides
that:
"No person shall exercise the privilege or perform any act
which a licensee may exercise or perform on the authority of
a license unless the person is authorized to do so by a
license issued pursuant to this division."
Section 23301 of the Business and Professions Code provides,
in relevant part, as follows:
"Any person violating Section 23300 is guilty of a
misdemeanor..."
The licensee was operating in violation of Section 23300
when it violated the conditions of the license which had
been imposed pursuant to Section 23804 of the Business and
Professions Code.
B. Greg Hastings, the City Zoning Director, testified that
the business has been issued a dinner dance permit to allow
patrons to dance as an accessory use. A different kind of
permit called a dance hall permit is required in order to
charge a cover charge for permitting patrons to dance. A
dance hall permit requires a separate conditional use permit
which the E1 Paraiso Restaurant does not have. (Page 23,
line 24 through Page 24, line 5.) A "dinner-dancing place
is defined in Anaheim Municipal Code subsection 4.16.010.030
as "a place where music is provided and the public is
permitted to dance without payment of a fee." (emphasis
added.) Charging a cover charge violates the Anaheim
Municipal Code requirements for a dinner dancing place.
Contrary to the requirements of subsection 4.16.010.030, E1
Paraiso has recently been charging a cover charge, as
testified to by Investigators West and D'Anna. (Page 44,
lines 5-8; Page 57, lines 21-22; Page 59, lines 22-23.)
C. Ms. Crabb testified that there are presently three
outstanding violation issues with the ABC relating to decoy
sales to minors, loud music and lewd conduct. (Page 31,
lines 6-9.)
D. Investigator D'Anna described female dancers he
observed who were exposing thong-type underwear and
permitting patrons to place money inside the thong
underwear. (Pages 58, line 7 through Page 61, line 16.)
9
Some dancers pulled off their dresses and removed their
bras. (Page 61, lines 3-10.) This exposure violates the
City's prohibition on nudity, as set forth in Section
7.16.060 of the A~aheim Municipal Code. A citation was
issued on December 15, 1994, as a result of the above
described incident. (City Exhibit 22.)
E. Investigator Randy West testified, on the basis of a
review of Police Department records, about a minor decoy
operation at the E1 Paraiso Restaurant on January 22, 1995,
wherein two minor decoys aged 18 and 19 were served
alcoholic beverages by an employee of the restaurant. A
citation was issued. (Page 47, line 18, through Page 48,
line 3.)
F. The entertainment permit for E1 Paraiso was denied in
May 1995 for violations of municipal and state code. (Page
23, lines 20-24; City Exhibit 12.)
CONDITIONAL USE PERMIT NO. 284 HAS BEEN SO EXERCISED AS TO BE
DETRIMENTAL TO PUBLIC HEALTH OR SAFETY
19. The E1 Paraiso Restaurant has been operated to as to
constitute a traffic hazard and undesirable noise source to the
detriment of public health and safety. This finding is based
upon the following evidence:
A. Investigator West testified, on the basis of a review
of Police Department records, that valet parking has been
unable to handle the large crowds generated in the evening
hours, and many patrons choose to park on the other side
(west side) of Brookhurst Street. He stated that between
November 11, 1993, and February 2, 1995, Officer Quinn
logged approximately 160 citations issued to pedestrians
patronizing the E1 Paraiso. The enforcement was due to the
dangerous nature of the attempts to cross Brookhurst, the
street in front of E1 Paraiso, which is a six-lane highway
with a two-way left turn lane in the center. The posted
speed limit on Brookhurst is 40 miles per hour, and most
traffic moves along at 50 to 55 miles per hour. Even though
traffic is light in the late evening hours and the area is
illuminated by street lamps, it is very dangerous to cross
the six-lane highway in the late evening hours when traffic
is moving quickly. He further stated that officers have
taken enforcement action by enforcing the jay-walking
statutes as a preventive measure, including prevention of
vehicular collisions. Enforcement is a drain on police
services for this area. (Page 46, line 5 through Page 47,
line 7.)
10
B. On June 17, 1995, John Poole, the City Code Enforcement
Officer, observed that traffic in front of E1 Paraiso queues
up trying to enter the E1 Paraiso parking lot. (Page 19,
lines 5-15.)
C. On September 30, 1995, during her evening drive-bys,
Carole Stanley observed people who had parked their cars
across the street from E1 Paraiso running across Brookhurst
Street to go into the establishment. (Page 112, lines 4-
i3.)
D. On October 7, 1995, Donald Yourstone, Senior Code
Enforcement Officer, conducted an inspection at
approximately 10:45 p.m. and was required to stop his
vehicle on the approach apron to the driveway, with at least
one or two vehicles behind him backed up onto Brookhurst
Street. (Page 68, lines 12-19.)
E. E1 Paraiso has caused neighborhood noise which has
affected the neighborhood. Mr. Smith, despite a hearing
loss, has been disturbed by noise coming from E1 Paraiso.
Most recently, he has made a special effort to look over the
wall when he is awakenedl and recalls having been disturbed
by noise from E1 Paraiso twice since the last Planning
Commission meeting. (The Planning Commission acted to
terminate the CUP on August 7, 1995.) Mr. Smith states that
his wife is awakened many more times than he is. (Page 78,
line 4 through page 79, line 2.)
F. Ms. Carole Stanley has been driving by the
establishment an estimated two or more evenings a week since
approximately July 10, 1995, the first Planning Commission
hearing regarding E1 Paraiso. She has particularly noticed
extremely loud and distinguishable noise coming from E1
Paraiso. (Page 110, line 1 though Page 112, line 2.)
G. Mr. Yourstone indicated that Code Enforcement records
indicate that between January 1, 1990 to the present, over
thirty citizen's complaints have been received resulting in
code violations which included excessive noise and
vibrations of music coming from the property, and excessive
noise from patrons loitering and racing car engines in the
parking lot. (Page 66, lines 7-15.)
H. Investigator Roberta Crabb has spoken to residents who
state that they are continually bothered by parking lot
noise, loud music coming from the premises and being
disturbed at very late hours by the operation of this
location. (Page 31, lines 6-15.)
li
CONDITIONAL USE PERMIT NO. 284 HAS BEEN SO EXERCISED AS TO
CONSTITUTE A NUISANCE
20. The E1 Paraiso Restaurant has been operated so as to
constitute a nuisance. Section 6.44.010 of the Anaheim Municipal
Code declares certain acts and conditions to be a nuisance.
Paragraph .0123 of that Section provides that one of the acts and
conditions which constitute a nuisance is "[m]aintenance of
premises in such condition as to be detrimental to the public
health, safety or general welfare or in such a manner as to
constitute a public nuisance as defined by Civil Code Section
3480." California Civil Code Section 3480 provides that "[a]
public nuisance is one which affects at the same time an entire
community or neighborhood, or any considerable number of persons,
although the extent of the annoyance or damage inflicted upon
individuals may be unequal." This finding is based upon the
following evidence:
A. E1 Paraiso has caused neighborhood noise problems which
has affected the neighborhood. Mr. Smith, despite a hearing
loss, has been disturbed by noise coming from E1 Paraiso.
Most recently, he has made a special effort to look over the
wall when he is awakened, and recalls having been disturbed
by noise from E1 Paraiso twice since the last Planning
Commission meeting. (The Planning Commission acted to
terminate the CUP on August 7, 1995.) Mr. Smith states that
his wife is awakened many more times than he is. (Page 78,
line 4 through Page 79, line 2.)
B. Ms. Carole Stanley has been driving by the
establishment as estimated five evenings a week since
approximately July 10, 1995, the first Planning Commission
hearing regarding E1 Paraiso. She has particularly noticed
extremely loud and distinguishable noise coming from E1
Paraiso. (Page 110, line 1 though Page 112, line 2.)
C. Mr. Yourstone, the Senior Code Enforcement Officer
indicated that Code Enforcement records indicate that
between January 1, 1990 to the present, over thirty
citizen's complaints have been received resulting in
code violations which included excessive noise and
vibrations of music coming from the property, and
excessive noise from patrons loitering and racing car
engines in the parking lot. (Page 66, lines 7-15.)
D. Investigator Roberta Crabb has spoken to residents who
state that they are continually bothered by parking lot
noise, loud music coming from the premises and being
disturbed at very late hours by the operation of this
location. (Page 31, lines 6-15.)
12
E. Police calls and enforcement activities divert a
disproportionate amount of City resources to E1 Paraiso.
Randy West testified regarding a five-year comparison
between police calls and reports to E1 Paraiso and a
comparably sized establishment in the vicinity at 1750 West
Lincoln Avenue. The Lincoln Avenue establishment had a
greater number of calls only in 1991. For the three most
recent years, total calls and reports filed for E1 Paraiso
far exceeded the calls and reports for the second location.
(Page 44, line 18 through Page 46, line 4; City Exhibit
14.) See also, Finding 19A, above, relating to 160
pedestrian citations issued at this location in a 15-month
period.
PROPOSED MODIFICATION OF CONDITIONAL USE PERMIT NO. 284
Appellant's Proposed Findings of Fact and Recommendations
propose that Conditional Use Permit No. 284, as set forth in
Planning Commission Resolution No, 455, Series 1962-63 (City
Exhibit 11) be modified to operate under specified conditions.
The City's Proposed Findings of Fact and Recommendations propose,
as an alternative if the Hearing Officer wishes to recommend
modification, that Conditional Use Permit No. 284 be modified ~o
operate under specified conditions. It appears both the
Appellant's and City's specified conditions were intended to be
identical but ~here appears to be a typing error in Condition 1
in Appellant's version since Condition 1 is a direct quote of
Business and Professions Code § 23038° Assuming the proposed
specified conditions were meant to be identical, they are as
follows:
ADDITIONAL CONDITIONS - C.U.P. NO. 284
1. That subject approval is exclusively for a bona fide
restaurant serving meals with an accessory cocktail lounge. A
"bona fide restaurant" means a place which is regularly, and in a
bona fide manner, engaged primarily and kept open for the serving
of meals to guests for compensation and which has suitable
kitchen facilities connected therewith as required by the Anaheim
Municipal Code, containing conveniences for cooking an assortment
of foods which may be required for ordinary meals, the kitchen of
which must be kept in a sanitary condition with the proper amount
of refrigeration for keeping food on said premises and must
comply with all the regulations of the local department of
health. "Meals" means the usual assortment of foods commonly
ordered at various hours of the day; the service of such food and
victuals only as sandwiches or salads shall not be deemed in
compliance with this requirement. "Guests" shall mean persons
who, during the hours when meals are regularly served therein,
come to a bona fide restaurant for the purpose of obtaining, and
actually order and obtain at such time, in good faith, a meal
therein. No approval is granted for a nightclub or public
13
premise establishment, as defined in Business and Professions
Code Section 12038, or for a "sexually-oriented business" as
defined under Section 18.89.020 of the Anaheim Municipal Code.
2. That meals shall be offered and available from opening time
until either 10:00 p.m. or closing time, whichever occurs first,
on each day of operation.
3. That the subject alcoholic beverage license shall not be
exchanged for a public premises (bar) type license nor shall the
establishment be operated as a public premises as defined in
Section 23039 of the California Business and Profession Code.
4. That the sale of alcoholic beverages for consumption off the
premises shall be prohibited. (The premises shall not include
the areas outside the business, such as the parking lot or
sidewalk areas.)
5. That the gross sales of alcoholic beverages shall not exceed
the gross sales of all retail sales during any three (3) month
period. The applicant shall maintain records on a quarterly
basis indicating the separate amounts of sales of alcoholic
beverages and other items. These records shall be made available
for inspection by any City of Anaheim Police Department, Budget
and Audit, or Code Enforcement official when requested.
6. That the activities occurring in conjunction with the
operation of this establishment shall not cause noise
disturbances to surrounding properties.
7. That all doors serving subject restaurant shall conform to
the requirements of the Uniform Fire Code and shall be kept
closed and unlocked at all times during hours of operation except
for ingress/egress, deliveries and in cases of emergency.
8. That at all times when entertainment or dancing is
permitted, one to twelve uniformed security guards licensed by
the State of California shall be provided to the satisfaction of
the Anaheim Police Department, the number to be based upon the
number of patrons and the secondary impacts of the business, to
deter unlawful conduct on the part of employees or patrons,
promote the safe and orderly assembly and movement of persons and
vehicles, and prevent disturbances to the neighborhood by
excessive noise created by patrons entering or leaving premises.
9. That there shall be no exterior advertising of any kind or
type, including advertising directed to the exterior from within
the building, promoting or indicating the availability or
alcoholic beverages with the exception of one (1) sign indicating
"cocktails"
14
10. That the outdoor areas including the parking lot and any
landscape areas serving the premises shall be illuminated with
lighting of sufficient power to make easily discernible the
appearance and conduct of all persons on or about said areas.
Said lighting shall be directed, positioned and shielded in such
a manner so as not to illuminate the windows of nearby
residences.
11. That there shall be no pool tables or coin-operated games
maintained upon the premises at any time.
12. That there shall be no live entertainment, amplified music
or dancing permitted on the premises at any time without issuance
of proper permits as required by the Anaheim Municipal Code.
13. That the business operator shall comply with Section 24200.5
of the Business and Profession Code so as not to employ or permit
any persons to solicit or encourage others, directly or
indirectly, to buy them drinks in the licensed premises under any
commissions, percentage, salary, or other profit-sharing plan,
scheme or conspiracy.
14. That there shall be no coin-operated telephones on the
property that are located outside the building and within the
control of the applicant.
15. That no flyers, handbills or other advertising displays
shall be posted on public property (such as utility poles or
utility boxes) advertising subject establishment or any
activities therein.
16. That all code-required parking shall be located on-site and
that no fee for valet parking service shall be charged. When
valet parking is available, a sign indicating that the service is
free shall be plainly visible at the valet drop-off area. Within
thirty (30) days from the date of the final City Council action
pertaining to this modification, the applicant/business owner
shall have obtained approval from the City Traffic Manager for a
valet parking plan that will minimize negative impacts on the
public right-of-way and surrounding properties. The plan may
require the reconstruction of the driveways on Brookhurst Street
to accommodate ten (10) foot radius curb returns.
17. That there shall be no cover charge or admittance fee to
this restaurant or the accessory cocktail lounge.
18. That within thirty (30) days from the date of the final City
Council action pertaining to this modification, a noise study
prepared by an acoustical engineer, addressing this facility's
noise effects on the residential properties to the east of such
time as entertainment occurs, shall be prepared and submitted to
15
the zoning division for review and approval. All sound
mitigation measures required by that study shall be implemented
within sixty (60) days thereafter.
19. That 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 through 4 as have been
modified by Building Permit Nos. 10684, 1648, 5101 and 24840.
20. That the business owner shall pay for regular bi-weekly Code
Enforcement inspections for a period of three (3) months from the
date of the final Council action pertaining to this modification
and thereafter for a period of once a month for six (6) months.
Any further investigation necessitated by the receipt of valid
complaints by the Code Enforcement Division shall also be paid by
the business owner.
21. That Conditions Nos. 10 and 19, above-mentioned, shall be
completed within a period of ninety (90) days from the date of
the final Council action pertaining to this modification.
22. That modification of the conditions of approval of this
conditional use permit does not constitute any action or finding
as to compliance regarding any applicable ordinances, regulations
or requirements.
FINDINGS RELATIVE TO PROPOSED MODIFICATION OF CONDITIONAL USE
PERMIT NO. 284
21. The Hearing Officer cannot recommend the proposed
modification of Conditional Use Permit No. 284 because it
represents a complete change in the operation of the E1 Paraiso
Restaurant, the success of which is doubtful. This recommendation
is based upon the following evidence:
A. Beginning with the operation of the Pink Cadillac
Supper Club and continuing with the E1 Paraiso Restaurant,
the has been a change in emphasis from the service of food
as was the case for the Sampan Cantonese Resta~rant to the
service of alcohol as evidenced by the reconfiguration of
the restaurant. (City Exhibit 17.)
B. Ms. Crabb testified that most of the conditions on the
E1 Paraiso conditional license relate to operation of the
business as a bona fide eating place. (Page 28~ lines 2-4.)
One of the conditions requires the "[t]he licensec shall
make actual and substantial sales of meals to guests for
compensation and the quarterly gross sales of alcoholic
beverages shall not exceed the gross sales of meals during
the same period." (City Exhibit 18.) Ms. Crabb stated this
condition is imposed when the ABC has concerns that a place
16
may not be operating as a bona fide restaurant and providing
an adequate supply of food during normal food hours, based
on prior complaints or business operations at the location.
(Page 32, line 18 through Page 33, line 4.) Ms. Crabb
further testified regarding an accusation and hearing held
by the ABC relating to complaints received by the ABC in
February 1994 that E1 Paraiso was selling more liquor than
food, in violation of Condition 02. of the ABC license,
which resulted in imposition of a thirty-day suspension as a
penalty. The licensec is appealing the sentence imposed as
a result of the hearing, but not the finding of the
violation. (Page 29, lines 4-24; Page 36, lines 11-22.)
C. Gil Santana testified to the difficulty of operating
the E1 Paraiso as a bona fide restaurant. He testified the
number of persons attending the E1 Paraiso varied depending
on the type music being played that night of the week. (Page
128, line 5, to Page 132, line 14) Specifically, he
testified the restaurant had very little business when it
opened at 7:30 p.m. despite advertising and everything else.
(Page 128, lines 16 25)
22. If the City Council wishes to consider the proposed
modification, the Hearing Officer recommends the proposed
conditions be amended as follows:
A. Condition 1 should be supplemented to provide that, as
a general rule, a guest coming to the restaurant should be
able to order and obtain any item on the menu and not just a
meal. It is recognized that this condition is a direct quote
of Business and Profession Code § 23038 but in light of the
discrepancy between the menu and the food on the premises
discussed in Finding 18F, such a finding is appropriate.
B. Condition 5 must be rewritten as it is ambiguous in
that "gross sales of alcoholic beverages" appears to be a
subset of and included within "gross sales of all retail
sales" and therefore "the gross sales of alcoholic
beverages" could never exceed "the gross sales of all retail
sales". Further, if the mandatory buffet ticket is
maintained (Found to be a disguised cover charge in Finding
18L), how is it to be characterized (food, alcohol, other)
as cover charges are prohibited by Condition 177
C. Condition 10 should be expanded to prohibit
illumination of the backyards of nearby residences.
D. Condition 18 should be clarified with respect to the
phrase" addressing this facility's noise effects on the
residential properties to the east of such time as
entertainment occurs". Perhaps "of" was meant to be "at".
17
RECOMMENDATIONS
Based on the above Findings of Fact and evidence, the
Hearing Officer recommends that the City Council deny the appeal
and revoke Conditional Use Permit No. 284 on the following
grounds, authorized by Anaheim Municipal Code § 18.03.092:
".040 That the permit or variance granted is being,
or recently has been exercised contrary to the terms or
conditions of such approval, o__r in violation of any
statute, ordinance, law or regulation." (emphasis
added)
".050 That the use or variance for which the
approval was granted has been so exercised as to be
detrimental to the public health or safety, o~r so as to
constitute a nuisance." (emphasis added)
There is credible evidence to support all four alternatives
provided for under subsections .040 and .050, however, the
strongest and most consistent evidence supports the finding that
the permit is being, or recently has been exercised, contrary to
the terms and conditions of approval.
The proposed modification of Conditional Use Permit No. 284
cannot be recommended because it represents a complete change in
the operation of the E1 Paraiso Restaurant, the success of which
is doubtful for the reasons described above.
A third alternative, suggested by neither of the parties, is
to delay the effective date of the revocation of Conditional Use
Permit No. 284 to give the Appellant, Pink Cadillac, Inc. dba E1
Paraiso Restaurant, time to apply for a conditional use permit
for a public dance hall, which is how it operates in reality,
which conditional use permit could be conditioned to avoid
adverse impacts on the neighborhood. In the interim, CUP No. 284
could be modified as proposed. Many of the conditions for the
proposed modification of CUP No. 284 would be appropriate for a
conditional use permit for a public dance hall. It i~ recognized
that this alternative would require a different type of license
from the Department of Alcoholic Beverage Control; the
feasibility of obtaining such a license would have to be
investigated prior to adopting this alternative.
Respectfully submitted this 15th day of November 1995,
Victor J. Ka
Hearing Officer
18