97-064RESOLUTION NO. 97R -64
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF ANAHEIM ADOPTING THE FINDINGS OF FACT AND
RECOMMENDATIONS OF HEARING OFFICER ADDING NEW
CONDITIONS OF APPROVAL OF CONDITIONAL USE
PERMIT NO. 1594 AND CONDITIONAL USE PERMIT NO.
3421.
WHEREAS, Conditional Use Permit No. 1594 to permit a
restaurant with on- premises sale and consumption of alcohol with a
waiver of minimum structural setback at 500 Brookhurst Street,
Anaheim, was granted by the Anaheim Planning Commission (the
"Planning Commission on January 5, 1976, by Planning Commission
Resolution No. PC 76 -5; and
WHEREAS, on December 23, 1996, Andrew Lui, property owner, and
Everado Godoy, holder, user and /or permittee, were given notice
that the Planning Commission's public hearing to consider
revocation or modification of Conditional Use Permit Nos. 1594 and
3421 was rescheduled to February 19, 1997; and
WHEREAS, on February 19, 1997, the Planning Commission held a
public hearing to consider the revocation or modification of
Conditional Use Permit Nos. 1594 and 3421; and
WHEREAS, following the public hearing, the conditions of
approval for Conditional Use Permit No. 1594 were amended and the
conditions of approval for Conditional Use Permit No. 3421 were
further amended by the Planning Commission by Planning Commission
Resolution Nos. PC97 -16 and PC97 -17, respectively, establishing a
neew expiration date of August 19, 1997 for both Conditional Use
Permits; and
WHEREAS, On February 20, 1997, John B. Casoria, attorney for
La Estrella Restaurant, filed an appeal of the Planning Commission
decisions with the City Clerk of the City of Anaheim; and
WHEREAS, on March 11, 1997, the City Council referred the
appeal to a hearing officer as permitted by Anaheim Municipal Code
Section 1.12.110; and
WHEREAS, on April 19, 1997, the City Clerk of the City of
Anaheim gave Notice of a Public Hearing before a Hearing Officer
for the subject appeal to be held on April 22, 1997; and
WHEREAS, on April 22, 1997, a public hearing on the appeal
of La Estrella was duly held before Victor J. Kaleta, Hearing
Officer. The City was represented by Deborah P. Knefel, Deputy
City Attorney, and the Appellant was represented by Leonard
Polyakov, Rick Blake and Associates, with testimony received from
John Poole, Code Enforcement Manager, and Everardo' Godoy, Jr.,
Appellant; and
WHEREAS, substantial written evidence was submitted by both
sides and received by the Hearing Officer; and
WHEREAS, the Hearing Officer, having considered the exhibits
received at the hearing, arguments and proposed findings of fact
and recommendations of counsel, has prepared Findings of Fact and
Recommendations of Hearing Officer to Anaheim City Council pursuant
to Anaheim Municipal Code Section 1.12.110 (the "Findings of
Fact and
WHEREAS, on May 12th, 1997, the City received the
Administrative Record and the proposed Findings of Fact submitted
by the Hearing Officer; and
WHEREAS, on May 20th, 1997, the City Council did consider the
administrative record and the Findings of Fact 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 of Fact of the hearing officer attached hereto, marked
Exhibit A, incorporated herein by this reference as if set forth in
full.
BE IT FURTHER RESOLVED, based on the grounds set forth in the
Findings of Fact, that the City Council does hereby modify
Conditional Use Permit Nos. 1594 and 3421 as follows:
1. Modify Condition of Approval No. 20 of Conditional Use
Permit No. 1594 to read as follows:
"20. That subject use permit is hereby granted for
a period of six months, thus expiring in six months, with
said six month period to commence on the date of the
City Council's decision to adopt the Hearing Officer's
recommendations. A progress report shall be given to the
Planning Commission as a Report and Recommendations item,
pertaining to compliance with conditions of approval and
all rules and regulations, four months from the date of
the City Council's decision. The Planning Commission
may, at that time readvertise the subject conditional use
permit for revocation or modification."
2. Modify Conditions of Approval Nos. 29, 30, and 31 of
Conditional Use Permit No. 3421 to read as follows:
"29. That sales and service of alcoholic beverages
shall cease at 1 a.m. or closing time whichever occurs
first."
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"30. That persons under the age of twenty one (21)
shall be prohibited in the bar /public dance hall area of
the business when the business is open to the public,
provided however, the business shall not be deemed to be
open to the public when it is being used for private
parties such as receptions or banquets."
"31. That subject use permit is hereby granted for
a period of six months, thus expiring in six months, with
said six month period to commence on the date of the City
Council's decision to adopt the Hearing Officer's
recommendations. A progress report shall be given to the
Planning Commission as a Report and Recommendations item,
pertaining to compliance with conditions of approval and
all rules and regulation, four months from the date of
the City council's decision. The Planning commission
may, at that time readvertise the subject conditional use
permit for revocation or modification."
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 this 20th day of May, 1997.
ATTEST:
CITY CLERK OF THE CITY OF ANAHEIM
0023061.01
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. 97R -64 was introduced and adopted at a regular meeting provided by law, of
the Anaheim City Council held on the 20th day of May, 1997, by the following vote of the
members thereof:
AYES: MAYOR /COUNCIL MEMBERS: McCracken, Tait, Zemel, Lopez, Daly
NOES: MAYOR /COUNCIL MEMBERS: None
ABSENT: MAYOR /COUNCIL MEMBERS: None
AND I FURTHER CERTIFY that the Mayor of the City of Anaheim signed said Resolution
No. 97R-64 on the 20th day of May, 1997.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City
of Anaheim this 20th day of May, 1997.
(SEAL)
CITY CLERK OF THE CITY OF ANAHEIM
I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that the foregoing
is the original of Resolution No. 97R -64 was duly passed and adopted by the City Council of
the City of Anaheim on May 20, 1997.
CITY CLERK OF THE CITY OF ANAHEIM
IN RE: MODIFICATION OF CONDITIONAL
USE PERMIT NOS. 1594 AND 3421 UNDER
WHICH LA ESTRELLA RESTAURANT OPERATES
This matter came on for hearing on April 22, 1997, on the
appeal of La Estrella Restaurant from a decision of the Anaheim
Planning Commission to modify Conditional Use Permit No. 1594, to
permit a restaurant with on- premises sale and consumption of
alcohol with a waiver of minimum structural setback, and
Conditional Use Permit No. 3421, to permit a public dance hall,
both for a period of six months, to expire August 19, 1997,
relative to La Estrella Restaurant at 500 Brookhurst Street,
Anaheim. Leonard Polyakov appeared on behalf of Appellant and
Deborah P. Knefel, Deputy City Attorney, appeared on behalf of
the City of Anaheim. The Hearing Officer, Victor J. Kaleta,
having considered the exhibits received at the hearing and
arguments and stipulations of the parties, finds as follows:
BACKGROUND FINDINGS
FINDINGS OF FACT AND RECOMMENDATIONS OF
HEARING OFFICER TO ANAHEIM CITY COUNCIL
PURSUANT TO A.M.C. SECTION 1.12.110
1. Conditional Use Permit No. 1594 to permit a restaurant
with on- premises sale and consumption of alcohol with a waiver of
minimum structural setback at 500 Brookhurst Street, Anaheim, was
granted by the Anaheim Planning Commission (the "Planning
Commission") on January 5, 1976, by Planning Commission
Resolution No. PC76 -5. (City Exhibit 5c.)
2. Conditional Use Permit No. 3421 to permit a public
dance hall with a waiver of minimum number of parking spaces was
granted by the Planning Commission on June 17, 1991, by Planning
Commission Resolution No. PC91 -89. The expiration date was set
for one year, June 17, 1992. (City Exhibit 9a.)
3. The legal description in Planning Commission Resolution
No. PC91 -89 was amended by Planning Commission Resolution No.
PC91 -130 on August 12, 1991. (City Exhibit 9b.)
4. The conditions of approval for Conditional Use Permit
No. 3421 were amended by the Planning Commission on June 15,
1992, by Planning Commission Resolution No. PC92 -75. A new
expiration date of June 15, 1994, was established. (City Exhibit
9c.)
Page 1
5. The conditions of approval for Conditional Use Permit
No. 3421 were further amended by the Planning Commission on June
26, 1995, by Planning Commission Resolution No. PC95 -72. A new
expiration date of June 26, 1998, was established. (City Exhibit
9d.)
6. The conditions of approval for Conditional Use Permit
No. 3421 were further amended by the Anaheim City Council "the
''City Council") on August 22, 1995, by City Council Resolution
No. 95R -158. A new expiration date of August 22, 1998, was
established. (City Exhibit 5b.)
7. On November 13, 1996, the Planning Commission, at the
request of the Anaheim Police Department, requested that
Conditional Use Permit Nos. 1594 and 3421 be set for a public
hearing to consider revocation or modification. (City Exhibit 5a,
page 2.)
8. On November 21, 1996, Andrew Lui, property owner, and
Everado Godoy, holder, user and /or permittee, were given notice
of the date, time and place of the Planning Commission's proposed
January 6, 1997, public hearing to consider revocation or
modification of Conditional Use Permit Nos. 1594 and 3421. (City
Exhibits 4a and 4b.)
9. On December 23, 1996, Andrew Lui, property owner, and
Everado Godoy, holder, user and /or permittee, were given notice
that the Planning Commission's public hearing to consider
revocation or modification of Conditional Use Permit Nos. 1594
and 3421 was rescheduled to February 19, 1997. (City Exhibits 4c
and 4d.)
10. On February 19, 1997, the Planning Commission held a
public hearing to consider the revocation or modification of
Conditional Use Permit Nos. 1594 and 3421. (City Exhibit 7.)
11. Following the public hearing, the conditions of
approval for Conditional Use Permit No. 1594 were amended and the
conditions of approval for Conditional Use Permit No. 3421 were
further amended by the Planning Commission by Planning Commission
Resolution Nos. PC97 -16 and PC97 -17, respectively. A new
expiration date of August 19, 1997, was established for both
Conditional Use Permits. (City Exhibits 3a and 3b.)
12. On February 20, 1997, John B. Casoria, attorney for La
Estrella Restaurant, filed an appeal of the Planning Commission
decisions with the City Clerk of the City of Anaheim. (City
Exhibit 1.)
13. On March 11, 1997, the City Council referred the appeal
to a hearing officer as permitted by Anaheim Municipg Code
Section 1.12.110. (City Exhibit 8.)
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14. On April 10, 1997, the City Clerk of the City of
Anaheim gave Notice of a Public Hearing before a Hearing Officer
for the subject appeal to be held on April 22, 1997. (City
Exhibit 2.)
15. On April 22, 1997, a public hearing on the appeal of La
Estrella Restaurant was duly held before Victor J. Kaleta,
Hearing Officer. The City was represented by Deborah P. Knefel,
Deputy City Attorney, and the Appellant was represented by
Leonard Polyakov. Testimony was received from John Poole, Code
Enforcement Manager, and Everardo Godoy, Jr., Appellant.
(Transcript of Hearing.)
16. At the start of the hearing, Mr. Kaleta, Hearing
Officer, stated he understood there was a proposed settlement of
the appeal but it would still be necessary to present evidence to
support the settlement and proposed modifications of the
conditions of approval of Conditional Use Permit Nos. 1594 and
3421. (Transcript, Page 4, line 22, through Page 5, line 1.)
GROUNDS FOR TERMINATION OR MODIFICATION OF CONDITIONAL USE
PERMITS
17. The grounds for terminating or modifying a conditional
use permit are set forth in Anaheim Municipal Code Section
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
conditions of such approval, or 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 so as to be detrimental to
the public health or safety, or so as to constitute a
nuisance." (emphasis added)
In the instant case, 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, or necessary to permit reasonable
operation under the conditional use permit or variance
granted." (emphasis added)
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FINDINGS TO SUPPORT PROPOSED SETTLEMENT AND MODIFICATION OF
CONDITIONAL USE PERMIT NOS. 1594 AND 3421
18. At its public hearing of February 19, 1997, the
Planning Commission had before it the following written evidence:
a. Staff Report to Planning Commission, February
19, 1997, Item No. 6. (City Exhibit 5a.)
b. Memorandum to Planning Commission from
Lieutenant Jim Flammini, Vice, Narcotics, Criminal
Intelligence Bureau, dated October 15, 1996,
entitled Application for Entertainment Permit.
(City Exhibit 5d.)
c. Memorandum to Ms. Della Herrick, Planning
Department, from Investigator Tom Engle, Vice Detail, dated
December 18, 1996, entitled La Estrella Restaurant.
(City Exhibit 5e.)
d. Memorandum to Greg Hastings, Zoning Division Manager,
from Lieutenant Jim Flammini, Vice, Narcotics, Criminal
Intelligence Bureau, dated January 13, 1997, entitled
Request for Revocation of Conditional Use Permit.
(City Exhibit 5f.)
e. Memorandum to Della Herrick, Associate Planner, from
Timothy Dunn, Code Enforcement Officer, dated January 28,
1997, entitled La Estrella 500 N. Brookhurst Street,
Anaheim. (City Exhibit 5g.)
19. At its public hearing of February 19, 1997, the
Planning Commission received oral input from City staff, the
public and John Casoria, attorney for Mr. Godoy, which is
summarized in its action minutes of February 19, 1997. (City
Exhibit 7.)
20. The exhibits referenced in Findings 18 and 19 were
entered into evidence without objection of Appellant.
(Transcript, Page 7, lines 20 -22.)
21. The proposed settlement is set forth in Ms. Knefel's
letter to Mr. Blake of April 21, 1997. (City Exhibit 10.)
Specifically, it is acceptance of the conditions of approval set
forth in Planning Commission Resolutions Nos. PC97 -16 and PC97 -17
with the following modifications to Planning Commission
Resolution No. PC97 -17:
"29. That sales and service of alcoholic beverages
shall cease at 1 a.m. or closing time, whichever occurs
first."
Page 4
23.
attorney,
proposed
Page 12,
30. That persons under the age of twenty one (21) shall be
prohibited in the bar /public dance hall area of the business
when the business is open to the public.
31. That subject use permit is hereby granted for a period
of six months, thus expiring in six months, with said six
month period to commence on the date of the City Council's
decision to adopt the Hearing Officer's recommendations. A:,
progress report shall be given to the Planning Couuuission as
a Report and Recommendations item, pertaining to compliance
with conditions of approval and all rules and regulations,
four months from the date of the City Council's decision.
The Planning Commission may, at that time readvertise the
subject conditional use permit for revocation or
modification."
22. During the public hearing, Condition 30. was clarified
with respect to the phrase "when the business is open to the
public" to exclude private parties such as receptions or
banquets. (Transcript, Page 8, lines 5 -11; Page 9, line 25,
through Page 10, line 15; Page 11, line 16, through Page 12, line
12
Appellant, Everado Godoy, Jr., under questioning by his
Mr. Polyakov, stated he understood and agreed to the
modifications. (Transcript, Page 10, line 18, through
line 9.)
24. There is a factual basis for and evidentiary support
for the proposed settlement and the modification of Conditional
Use Permit Nos. 1595 and 3421 and the imposition of additional
conditions of approval. bpecifically, the written and oral
evidence before the Planning Commission which was received into
evidence in this hearing shows that both Conditional Use Permits:
a. were being, or recently have been exercised contrary to
the terms or conditions of their approval, or in violation
of a statute, ordinanpe, law or regulation.
b. have been exercised so as to be detrimental to the
public health or safety, or so as to constitute a
nuisance.
c. are candidates for modification, including the
imposition of additional conditions thereto, which are
reasonably necessary to protect the public peace, health,
safety or general welfare.
In particular, there is evidentiary support for the following:
a. The premises is not being operated as a bona fide
restaurant in violation of conditions of approval 11ifood
service with an available meals shall be available from opening
time until 10:00 p.m. or closing time, whichever occurs first, on
Page 5
each day of operation, and 12, the premises shall be operated as
a bona fide restaurant and shall provide a menu containing an
assortment of foods normally offered in such restaurants, of
Conditional Use Permit No. 3421 as set forth in City Council
Resolution No. 95R -158 in that food was not being served during
normal restaurant business hours and the dining room was unlit
and empty during such hours. (City Exhibits 5d and 5e.)
b. The premises are being operated so as to be detrimental
to the public health or safety or so as to constitute a nuisance
in that its operation as resulted in an excessive number of calls
for service to the Police Department. (City Exhibit 5c.)
c. The premises is being operated so as to violate
condition of approval 15, the quarterly gross sales of alcoholic
beverages shall not exceed the gross sales of food and meals
during the same period, of Conditional Use Permit No. 3421 and a
similar condition in its Alcoholic Beverage Control License in
that a sampling of sales receipts showed minimum food sales
during a 30 day period. (City Exhibit 5e.)
d. The premises are being operated in violation of the
condition in its Alcoholic Beverage Control License that the
entertainment provided shall not be audible beyond the area under
the control of the license" in that all residents in the area
complain of hearing the music from the premises. (City Exhibit
5e.)
e. The proposed additional conditions are reasonably
necessary to protect the public peace, health, safety or general
welfare.
RECOMMENDATIONS
Based on the foregoing Findings and evidence, the Hearing
Officer recommends that the City Council grant the appeal as to
Conditional Use Permit Nos;. 1594 and 3421 and modify the Planning
Commission's decision in accordance with the settlement described
above. Specifically, the City Council should:
1. Modify condition of approval 20 of Conditional Use
Permit No. 1594 to read as follows:
"20. That subject use permit is hereby granted for a
period of six months, thus expiring in six months, with said
six month period to commence on the date of the City
Council's decision to adopt the Hearing Officer's
recommendations. A progress report shall be given to the
Planning Commission as a Report and Recommendations item,
pertaining to compliance with conditions of approval and all
rules and regulations, four months from the date of the City
Council's decision. The Planning Commission may, at that
Page 6
time readvertise the subject conditional use permit for
revocation or modification."
2. Modify conditions of approval 29, 30, 31 of Conditional
Use Permit No. 3421 to read as follows:
29.That sales and service of alcoholic beverages
shall cease at 1 a.m. or closing time, whichever occurs
first."
30. That persons under the age of twenty one (21) shall be
prohibited in the bar /public dance hall area of the business
when the business is open to the public, provided however,
the business shall not be deemed to be open to the public
when it is being used for private parties such as receptions
or banquets.
31. That subject use permit is hereby granted for a period
of six months, thus expiring in six months, with said six
month period to commence on the date of the City Council's
decision to adopt the Hearing Officer's recommendations. A
progress report shall be given to the Planning Commission as
a Report and Recommendations item, pertaining to compliance
with conditions of approval and all rules and regulations,
four months from the date of the City Council's decision.
The Planning Commission may, at that time readvertise the
subject conditional use permit for revocation or
modification."
Respectfully submitted this 12th day of May 1997.
Victor J. Kaleta
Hearing Officer
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