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RES-2009-058RESOLUTION NO. 2009 -058 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 1820 SOUTH HARBOR BOULEVARD, ANAHEIM, CALIFORNIA (DETERMINATION OF PUBLIC CONVENIENCE OR NECESSITY NO. 2009 00056). 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 limitations 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 (i) permit the sale of beer, wine and distilled spirits for on- premises consumption in conjunction with a nightclub integrated within a hotel, and (ii) permit the sale of beer and wine for off premises consumption in conjunction with a retail store that is integrated within a hotel on that certain real property generally located at 1820 South Harbor Boulevard, 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. 2009 -00056 is proposed in conjunction with General Plan Amendment No. 2008 00470; Amendment No. 13 to the Anaheim Resort Specific Plan (SPN2008- 00055); Amendment No. 4 to The Anaheim Resort Public Realm Landscape Program (Miscellaneous Case No. 2009 00297); Conditional Use Permit No. 2009 05403; Variance No. 2008 04761; and Final Site Plan No. 2008 -00004 (hereinafter the "Discretionary Actions and WHEREAS, the Planning Commission 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, on March 2, 2009, following said public hearing adopted its Resolution No. PC2009 -041 approving said application and determining that the public convenience or necessity would be served by the proposed sale of beer, wine and distilled spirits for on- premises consumption in conjunction with a nightclub integrated within a hotel and the sale of beer and wine for off premises consumption in conjunction with a retail store that is integrated within a hotel as requested by the applicant; and WHEREAS, the Planning Commission has reviewed the Discretionary Actions and did find and determine that the Mitigated Negative Declaration and the associated Mitigation Monitoring Program No. 156 is adequate to serve as the required environmental documentation in connection with this request upon finding that the declaration reflects the independent judgment of the lead agency and that it has considered the Mitigated Negative Declaration together with any comments received during the public review process and further finding on the basis of the initial study and any comments received that there is no substantial evidence that the project will have a significant effect on the environment; and WHEREAS, thereafter, the Planning Commission, on its own motion, requested review of its decision by the City Council; 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, wine and distilled spirits for on- premises consumption in conjunction with a nightclub integrated within a hotel and the sale of beer and wine for off premises consumption in conjunction with a retail store that is integrated within a hotel, as requested in the application, for the following reasons: 1. That the Anaheim Resort Specific Plan No. 92 -2 permits the sale of alcoholic beverages for on- premises consumption within a nightclub integrated within a hotel subject to the approval of a conditional use permit and the off -site consumption of beer and wine for a retail store that is integrated within a hotel. The intent of the Code is to provide such sales as a convenience for visitors to The Anaheim Resort. 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 and off -site 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 2125, which has a crime rate of 190 percent above the average. The population within the census tract allows for five off sale ABC licenses and there are presently four licenses in the tract. The population also allows for eight on -sale licenses and there are presently seventeen in the tract. 4. That there are no schools or residential uses adjacent to the subject site. 5. That there are licenses for on- premises sale and consumption within the vicinity of the site; however, those licenses are for restaurants. There are no bars /nightclubs immediately adjacent to the project. The conditions of approval will ensure that approval of the proposal will not adversely affect any adjoining land use or the growth and development of the surrounding area. In addition, the conditions of approval will ensure that approval of the proposal for off premises sale and consumption will not adversely affect any adjoining land use or the growth and development of the surrounding area. BE IT FURTHER RESOLVED that the City Council, as lead agency for purposes of the California Environmental Quality Act, having reviewed the Discretionary Actions, does hereby find and determine that the Mitigated Negative Declaration and the associated Mitigation Monitoring Program No. 156 is adequate to serve as the required environmental documentation in connection with this request upon finding that the declaration reflects the independent judgment of the lead agency and that it has considered the Mitigated Negative Declaration together with any comments received during the public review process and further finding on the basis of the initial study and any comments received that there is no substantial evidence that the project will have a significant effect on the environment. 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 licenses, which are hereby approved, subject to the conditions of approval described in Exhibit `B" attached hereto and incorporated herein by this reference which are 3 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, be declared invalid or unenforceable by the final judgment of any court of competent jurisdiction, then this Resolution, and any approvals herein contained, shall be deemed null and void. BE IT FURTHER RESOLVED that this application is granted subject to the approval by the City Council of General Plan Amendment No. 2008 00470, Amendment No. 13 to the Anaheim Resort Specific Plan (SPN2008- 00055), Conditional Use Permit No. 2009- 05403, Variance No. 2008 -04761 and Final Site Plan No. 2008 00004, now pending. THE FOREGOING RESOLUTION is approved and adopted by the City Council of the City of Anaheim this 31st day of March 2009, by the following roll call vote: AYES: Mayor Pringle, Council Members Hernandez, Sidhu, Kring NOES: Council Member Galloway ABSENT: NONE ABSTAIN: NONE ATTEST: CITY CLERK OF THE C TY OF AHEIM 7241 6. v 1 /MGordon CITY OF ANAHEIM By: MAYOR OF THE CITY OF ANAHEIM EXHIBIT "A" PUBLIC CONVENIENCE OR NECESSITY PERMIT NO. 2009-00056 KATELLA AVE 540' 550' Source: Recorded Tract Maps and /or City GIS v I, Please note the accuracy is two to five feet 10715 NO. CONDITIONS OF APPROVAL RESPONSIBLE FOR MONITORING NIGHTCLUB /BAR TYPE 48 LICENSE GENERAL The permitted event or activity shall not create sound levels that violate any ordinance of the City of Anaheim. (Section 4.16.100.010 Anaheim Municipal Code) Police/Code Enforcement ri L Security measures shall be provided to the satisfaction of the Anaheim Police Department to deter unlawful conduct of employees and patrons, promote the safe and orderly assembly and movement of persons and vehicles, and to prevent disturbances to the neighborhood by excessive noise created by patrons entering or leaving the premises. Police /Code Enforcement Anytime the premises are providing entertainment, the petitioner(s) shall provide uniformed security personnel. Police /Code Enforcement The number of persons attending the event shall not exceed the maximum occupancy load as determined by the Anaheim Fire Department. Signs indicating the occupant load shall be posted in a conspicuous place on an approved sign near the main exit from the room. Fire /Code Enforcement 5 The business shall not be operated in such a way as to be detrimental to the public health, safety or welfare. Police /Code Enforcement 6 All entertainers and employees shall be clothed in such a way as to not expose "specified anatomical areas" as described in Section 7.16.060 of the Anaheim Municipal Code. Police/Code Enforcement No one under the age of 21 shall be allowed in the nightclub. Police/Code Enforcement 8 L The business shall not employ or permit any persons to solicit or encourage others, directly or indirectly, to buy them drinks in the licensed premises under any commission, percentage, salary, or other profit- sharing plan, scheme or conspiracy. (Section 24200.5 Alcoholic Beverage Control Act). Police /Code Enforcement 9 The floor space provided for dancing shall be free of any furniture or partitions and maintained in a smooth and safe condition. Police /Code Enforcement EXHIBIT `B" PUBLIC CONVENIENCE OR NECESSITY PERMIT NO. 2009 -00056 6 10 Any violation of the application, or any attached conditions, shall be sufficient grounds to revoke the permit. Police /Code Enforcement 1 1 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. Police /Code Enforcement l2 The sale of alcoholic beverages for consumption off the premises is strictly prohibited. Police /Code Enforcement 13 There shall be no requirement to purchase a minimum number of drinks. Police /Code Enforcement 14 Signs shall be posted at all exits of the premises of the prohibition of alcoholic beverages from leaving the confines of the establishment. Police/Code Enforcement 15 Alcoholic beverages cannot be included in the price of admission. Police /Code Enforcement 16 There shall be no amusement machines or video game devices maintained upon the premises at any time without obtaining the proper permits from the City of Anaheim. The nightclub shall be inspected by City staff every two years, at the expense of the business operator to confirm compliance with applicable conditions of approval and Municipal Code provisions. RETAIL STORE TYPE 20 LICENSE Police/Code Enforcement Planning/Code Enforcement 1 GENERAL 19 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. Police /Code Enforcement 1 N i No display of alcoholic beverages shall be located outside of a building or within five (5) feet of any public entrance to the building. Police/Code Enforcement The area of alcoholic beverage displays shall not exceed 25% of the total display area in a building. Police /Code Enforcement 7 22 23 24 25 26 27 28 29 30 31 Beer and malt beverages in quarts, 22 oz., 40 oz., or similar size containers may not be sold individually and must be sold in multi -unit, prepackaged quantities as delivered from the distributor. The possession of alcoholic beverages in open containers and the consumption of alcoholic beverages are prohibited on or around these premises There shall be no public telephones on the property that are located outside the building and within the control of the applicant. Any graffiti painted or marked upon the premises or on any adjacent area under the control of the licensee shall be removed or painted over within 24 hours of being applied. The petitioner shall be responsible for maintaining free of litter the area adjacent to the premises over which they have control. Wine shall not be sold in bottles or containers smaller than 750 ml. and wine coolers must be sold in manufacturer pre- packaged multi -unit quantities. GENERAL 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 through 82, and as conditioned herein. That extensions for further time to complete conditions of approval may be granted in accordance with Section 18.60.170 of the Anaheim Municipal Code. That timing for compliance with conditions of approval may be amended by the Planning Director upon a showing of good cause provided (i) equivalent timing is established that satisfies the original intent and purpose of the condition(s), (ii) the modification complies with the Anaheim Municipal Code and (iii) the applicant has demonstrated significant progress toward establishment of the use or approved development. 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 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 Police Code Enforcement Code Enforcement Code Enforcement Police Planning Planning Planning Planning -8