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96-049 RESOLUTION NO. 96R-49 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM ADOPTING THE FINDINGS OF FACT AND RECOMMENDATIONS OF HEARING OFFICER REVOKING CONDITIONAL USE PERMIT NO. 1082 AND MODIFYING CONDITIONAL USE PERMIT NO. 3422. WHEREAS, on January 3, 1966 the Planning Commission adopted Resolution No. 1893, Series 1965-66, approving Conditional Use Permit No. 797 (to establish a restaurant with waiver of minimum building and landscaped setback on property located at 1339 North East Street, on the west side of East Street, north of Kenwood Avenue); and WHEREAS, subject property was then developed with a restaurant known as the Pancake Carousel; and WHEREAS, on December 30, 1968 the Planning Commission adopted Resolution No. PC68-373 approving Conditional Use Permit No. 1082 (to permit on-sale beer and wine in conjunction with the serving of meals in an existing restaurant); and WHEREAS, two exhibits were submitted by the applicant depicting the site plan and floor plan of the existing restaurant, and the approval of Conditional Use Permit No. 1082 was based, in part, on the finding: "That due to the fact that the petitioner had indicated the serving of beer and wine would be an incidental use in the serving of food and no bar was proposed, the use would not be detrimental to the adjoining land uses;" and WHEREAS, in 1983 the restaurant changed ownership and was remodeled with a western theme and continued to operate as a full service restaurant with on-premises sale and consumption of beer and wine as Joey's Barbecue Restaurant; and WHEREAS, on June 20, 1991 the Zoning Administrator adopted Decision No. ZA91-26 approving Conditional Use Permit No. 3422 (to permit on-sale alcoholic beverages in an existing restaurant [Joey's Barbecue Restaurant] in connection with the serving of meals and with waiver of minimum number of parking spaces); and WHEREAS, two exhibits that were submitted by the applicant, and the approval of Conditional Use Permit No. 3422 was based, in part, on the finding: "That the proposed use, consisting of on-sale alcoholic beverages in connection with the serving of meals, is properly one for which a conditional use permit is authorized by the Zoning Code;" and WHEREAS, subject property has been zoned ML "Limited Industrial" since December 1962 and is currently developed with an approximately 3,640 square foot restaurant; and WHEREAS, on August 21, 1995, the Planning Commission directed staff to set subject Conditional Use Permit Nos. 1082 and 3422 for public hearing to consider the revocation or modification of said use permits; WHEREAS, the City Planning Commission did hold a public hearing at the Civic Center in the City of Anaheim on November 13, 1995, at 1:30 p.m., notice of said public hearing having been duly given as required by law and in accordance with the provisions of the Anaheim Municipal Code, Chapter 18.03, to hear and consider evidence for and against said proposed modification or termination and to investigate and make findings and recommendations in connection therewith; and WHEREAS, On November 13, 1995, by its Resolution No. PC- 95-147, the Planning Commission terminated Conditional Use Permit Nos. 1082 and 3422 (Sweetwater Saloon); and WHEREAS, on December 5, 1995, John H. Weston, of Weston, Sarno, Garrou & DeWitt, on behalf of the business owner Montebello Hospitality Services, Inc. (Sweetwater Saloon), filed a timely appeal of the Planning Commission's decision to terminate the conditional use permit; 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, and the matter was duly continued to February 26, 1996; and WHEREAS, on February 26, 1996, the Hearing Officer opened the public hearing relating to modification or termination of Conditional Use Permit Nos. 1082 and 3422 and received oral and written testimony. WHEREAS, the City of Anaheim appeared and was represented by John W. Poole, Code Enforcement Manager, and Selma J. Mann, Deputy city Attorney; Appellant Dennis Sciotto, owner of the subject property appeared on his own behalf; and Appellant business owner Montebello Hospital Services, Inc. (Sweetwater Saloon) had withdrawn from the proceeding; and WHEREAS, witnesses were presented by both sides; evidence, both oral and in writing, was received; and testimony was received from interested members of the public; and WHEREAS, the parties stipulated to the recitals, findings and recommendations to the City Council; and WHEREAS, on February 26, 1996, the public hearing was continued to March 5, 1996, the date the transcript of the proceeding was received by the Hearing Officer; 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 of Hearing Officer to Anaheim City Council pursuant to Anaheim Municipal Code Section 1.12.110 (the "Findings of Fact"); and WHEREAS, on March 25, 1996, the City received the administrative record and the proposed Findings of Fact submitted by the Hearing Officer; and WHEREAS, on April 9, 1996, the City Council did consider the administrative record and the written recommendations of the Hearing Officer. NOW, THREFORE, 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 Article II (Findings for Termination or Modification of C.U.P.) and Article III (Stipulated Facts), Paragraphs A through J, 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, based on the foregoing Findings and evidence, that the City Council: A. Denies the appeal as to Conditional Use Permit No. 1082, revokes Conditional Use Permit 1082 and resolves that Planning Commission Resolution No. PC68-372 be, and the same is hereby, declared null and void. B. Grants the appeal as to Conditional Use Permit No. 3422 and modifies Conditional Use Permit No. 3422, subject to the following conditions of approval: 1. That subject approval is exclusively for a bona fide restaurant serving meals with on-premise sale and 3 consumption of alcoholic beverages incidental to, and in conjunction with the serving of meals only. 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 premises establishment, as defined in the California 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 premise (bar) type license nor shall the establishment be operated as a public premise ~- as defined in Section 23039 of the California Business and Professions Code. 4. That the sale of alcoholic beverages for consumption off the premises shall be prohibited. 5. That the gross sales of alcoholic beverages shall not exceed fifty percent (50%) of the gross sales of all retail sales during any three (3) month period. The business owner/manager 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 upon request. 4 6. That the activities occurring in conjunction with the operation of this restaurant establishment shall not cause noise or other 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, delivers and in cases of emergency. 8. That at all times when entertainment or dancing is permitted, up to three uniformed security guards shall be provided to the satisfaction of, and as required by the Anaheim Police Department, the number to be determined upon meaningful consultation by and between the permittee, holder or lessee of the subject property and the Anaheim Police Department, to deter unlawful conduct on the part of employees or patrons, promote the safe and orderly assembly and movement of patrons and vehicles, and prevent disturbances to the neighborhood by excessive noise created by patrons entering or leaving the 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 of alcoholic beverages with the exception of one (1) sign indicating "cocktails", and one (1) sign promoting accessory entertainment. 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 into the windows of nearby residences. 11. That the interior of the facility shall be illuminated with lighting of sufficient power to make easily discernible the appearance and conduct of all persons within the facility. 12. That there shall be no live entertainment, amplified music or dancing permitted on the premise 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 California Business and Professions 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 premise under any commission, percentage, salary, or other profit-sharing plan, scheme or conspiracy. 14. That there shall be no coin-operated telephones on the premises that are located outside of the building unless such telephones are affixed to the building wall and located within fifteen (15) feet of the main entrance to the building. 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 there shall be no cover charge or admittance fee required to gain access to the restaurant establishment. 17. That the raised stage area shall be removed and the dining area converted back to its original condition as indicated on the previously-approved plans and specifications submitted by the applicant and on file in the Planning Department marked Exhibit Nos. 1 and 2. 18. That Code Enforcement Staff shall be permitted to inspect subject use bi-monthly for a period of one year from the date of this City Council Resolution and on a complaint basis thereafter. The petitioner shall be responsible for paying the cost of each inspection in accordance with fees in effect at the time the inspections are made. 19. That subject property shall be developed substantially in accordance with plans and specifications submitted to the City Anaheim by the petitioner and which plans are on file with the Planning Department marked Exhibit Nos. 1 and 2, with the exception that the bar area that has been replaced with the waitress station may be permitted to remain. 20. That Condition Nos. 2, 8 and 12, above-mentioned, shall be complied with immediately upon adoption of this City Council Resolution. 6 21. That Condition Nos. 5, 7, 9, 10, 11, and 17, above- mentioned, shall be completed within a period of ninety (90) days from the date of this City Council Resolution. 22. That modification of the conditions of approval of this conditional use permit does not constitute any action or findings as to compliance regarding any applicable ordinances, regulations or requirements. 23. That this conditional use permit shall expire two (2) years from the date of this City Council Resolution. 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 9th day of April, 1996. ATTEST: 18484. l\SMANN\032796 7 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. 96R-49 was introduced and adopted at a regular meeting provided by law, of the Anaheim City Council held on the 9th day of April, 1996, 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. 96R-49 on the 9th day of April, 1996. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Anaheim this 9th day of April, 1996. CITY CLERK OF THE CITY OF ANAHEIM (SEAL) I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that the foregoing is the original of Resolution No. 96R-49 was duly passed and adopted by the City Council of the City of Anaheim on Apdl 9th, 1996. CITY CLERK OF THE CITY OF ANAHEIM IN RE: REVOCATION OR MODIFICATION OF CONDITIONAL USE PERMIT NOS. 1082 AND 3422 UNDER WHICH SWEETWATER SALOON SERVES ALCOHOLIC BEVEPJtGES~ ) 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 February 26, 1996, on the appeal of Montebello Hospitality Services, Inc. dba Sweetwater Saloon from a decision of the Anaheim Planning Commission to revoke Conditional Use Permit Nos. 1082 and 3422 under which the Sweetwater Saloon serves alcoholic beverages. Dennis Sciotto, the property owner and lessor, 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, and arguments and stipulations of the parties finds as follows: FINDINGS 1. Proposed Recitals, Findings and Recommendations (City Exhibit 2) were submitted on behalf of the City of Anaheim by Selma Jo Mann, Deputy City Attorney, and were agreed to by Dennis Sciotto, property owner an current Appellant. (Transcript Page 13, lines 252 -253) 2. The Condition K. 18. of Proposed Recitals, Findings and Recommendations was modified at the hearing and was agreed to by Appellant. (Transcript Page 21 , lines 419 - 438) The modified condition reads: "18. That Code Enforcement Staff shall be permitted to inspect subject use bi-monthly for a period of one year c~mplaiht basis thereafter. The petitioner shall be responsible for paying the cost of each inspection in accordance with fees in effect at the time the inspections are made." ~diIBIT A 3. Conditions K. 18., K. 20., K. 21. and K. 24 should be further modified to delete the words "Hearing Officer Decision" and replace them with "City Council Decision" as the Hearing Officer's authority is limited by Section 1.12.100 of the Anaheim Municipal Code to making recommendations to the City Council. 4. There is evidentiary support for the Stipulated Facts listed in the Proposed Recitals, Findings and Recommendations in the City Exhibits and the Transcript of this Hearing. 5. The Proposed Recitals, Findings and Recommendations as modified by 2. and 3. above read: RECITALS: THE HISTORY OF THIS PROCEEDING WHEREAS, on January 3, 1966 the Planning Commission adopted Resolution No. 1893, Series 1965-66, approving Conditional Use Permit No. 797 (to establish a restaurant with waiver of minimum building and landscaped setback on property located at 1339 North East Street, on the west side of East Street, north of Kenwood Avenue); and WHEREAS, subject property was then developed with a restaurant known as the Pancake Carousel; WHEREAS, on December 30, 1968 the Planning Commission adopted Resolution No. PC68-373 approving Conditional Use Permit No. 1082 (to permit on-sale beer and wine in conjunction with the serving of meals in the existing restaurant); and WHEREAS, two exhibits were submitted by the applicant depicting the site plan and floor plan of the existing restaurant, and the approval of Conditional Use Permit No. 1082 was based, in part, on the finding: That due to the fact that the petitioner had indicated the serving of beer and wine would be an incidental use in the serving of food and no bar was proposed, the use would not be detrimental to the adjoining land uses; and WHEREAS, in 1983 the restaurant changed ownership and was remodeled with a western theme and continued to operate as a full service restaurant with on-premises sale and consumption of beer and wine as Joey's Barbecue Restaurant; and WHEREAS, on June 20, 1991 the Zoning Administrator adopted Decision No. ZA91-26 approving Conditional Use Permit No. 3422 (to permit on-sale alcoholic beverages in an existing restaurant [Joey's Barbecue Restaurant] in connection with the serving of meals and with waiver of minimum number of parking spaces); and 2 WHEREAS, two exhibits that were submitted by the - applicant, and the approval of Conditional Use Permit No. 3422 was based, in part, on the finding: That the proposed use, consisting of on-sale alcoholic beverages in connection with the serving of meals, is properly one for which a conditional use permit is authorized by the Zoning Code; and WHEREAS, subject property, has been zoned ML "Limited Industrial" since December 1962 and is currently developed with an approximately 3,640 square foot restaurant; and WHEREAS, on August 21, 1995, the Planning Commission directed staff to set subject Conditional Use Permit Nos. 1082 and 3422 for public hearing to consider the revocation or modification of said use permits; WHEREAS, the City Planning Commission did hold a public hearing at the Civic Center in the City of Anaheim on November 13, 1995, at 1:30 p.m., notice of said public hearing having been duly given as required by law and in accordance with the provisions of the Anaheim Municipal Code, Chapter 18.03, to hear and consider evidence for and against said proposed modification or termination and to investigate and make findings and recommendations in connection therewith; and WHEREAS, On November 13, 1995, by its Resolution No. PC-95-147, the Planning Commission terminated Conditional Use Permit Nos. 1082 and 3422 (Sweetwater Saloon). WHEREAS, on December 5, 1995, John H. Weston, of Weston, Sarno, Garrou & DeWitt, on behalf of the business owner Montebello Hospitality Services, Inc. (Sweetwater Saloon), filed a timely appeal of the Planning Commission's decision to terminate the conditional use permit. 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, and the matter was duly continued to February 26, 1996; and WHEREAS, on February 26, 1996, the Hearing Officer opened the public hearing relating to modification or termination of Conditional Use Permit Nos. 1082 and 3422 and received oral and written testimony. WHEREAS, the City of Anaheim appeared and was represented by John W. Poole, Code Enforcement Manager Selma J. Mann, Deputy City Attorney; Appellant Dennis Sciotto, owner of the property appeared on his own behalf; and Appellant business owner Montebello Hospital Services, Inc. (Sweetwater Saloon) had withdrawn from the proceeding; and 3 WHEREAS, witnesses were presented by both sides; evidence, both oral and in writing, was received; and testimony was received from interested members of the public; and WHEREAS, the parties stipulated to these recitals, findings and recommendations to the City Council. ? II. FII~DINGS FOR TERi~INATION OR MODIFICATION OF C.U.P. Section 18.03.092 of the Anaheim Municipal Code provides for the modification or termination of conditional use permits and variances on one or more of the following grounds: .010 That the approval was obtained by fraud; .020 That the use or variance for which such approval is granted is not being exercised within the time specified in such permit; .030 That the use or variance for which such approval was granted has ceased to exist or has been suspended for one year or more; .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; .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, or so as to constitute a nuisance; .055 That the use or variance for which the approval was granted has not been exercised, and that based upon additional information or due to changed circumstances, the facts necessary to support one or more of the required showings for the issuance of such entitlement as set forth in this chapter no longer exists. .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 as granted. 4 III. STIPULATED FACTS: A. In March, 1995 the restaurant at the subject premises changed ownership and is began operating as "Sweetwater Saloon" and the application for business license indicates that the type of business is a "restaurant with full cocktails.', B. On October 24, 1995 the property owner of record and the holder, user and/o? permittee of the subject property 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 Permits No. 1082 and 3422. C. City Code Enforcement records indicates that the interior of the restaurant has been substantially altered from the floor .plans previously approved under Conditional Use Permit No. 1082 and Conditional Use Permit No. 3422: specifically, the "cook station/waitress area" has been converted to a full- service bar and a substantial number of tables or booths in the ~ customer seating area have been removed to accommodate a raised stage and bar set-up around the stage area. D. The primary business activity of the Sweetwater Saloon was the sale of alcoholic beverages for on-site consumption and providing live sexually-oriented entertainment performed by female employees as opposed to the serving of meals with incidental alcoholic beverage sales and providing "go go style" dance performances. E. The property owner has represented that the business owner of the Sweetwater Saloon has been evicted, and that the stage has been dismantled and removed from the premises. F. The use for which approval was originally granted under Conditional Use Permit No. 1082 (permitting on-sale beer and wine in conjunction with the serving of meals) has ceased to exist or has been suspended for one year or more, justifying termination of said permit pursuant to Anaheim Municipal Code Section 18.03.091.030, based on the following: 1. Conditional Use Permit No. 3422, permitting the on- premises sale and consumption of alcoholic beverages in conjunction with an existing restaurant, was approved by the City Zoning Administrator in June 1991, and the premises have subsequently been operating under a "Type 47" (On-Sale General Eating Place) permit from the State of California Department of Alcoholic Beverage Control authorizing the on-premises sale and consumption of general liquor since 1991; and, therefore, Conditional Use Permit No. 1082, permitting on-sale beer and wine under a different type of ABC permit, is no longer applicable or necessary. 5 2. Termination of Conditional Use Permit No. 1082 will eliminate a duplication of similar entitlement upon the premises. G. Conditional Use Permit No. 3422 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, justifying modification or termination of said permit pursuant to Anaheim. Municipal Code subsection 18.03 092.040, based on the following: Conditional Use Permit No. 3422 permits on-premises sale and consumption of alcoholic beverages in conjunction with an existing restaurant with waiver of minimum number of parking spaces, and use of the facility as a restaurant is an implicit term of the granting of the permit. The business recently has not been operating as a restaurant, because the floor plan has recently been modified to include a "bar" thereby replacing a cook station/waitress area and reducing the minimum required food preparation area of the enclosed restaurant from 25% of the gross floor area, as required and set forth in Section 18.01.190 of the Anaheim Municipal Code, to approximately 20%. Furthermore, a substantial amount of customer seating area has been removed and replaced by a raised stage for the performing of live entertainment. Moreover, the serving of meals has not been, the primary use or source of revenue for the business, and the serving of meals has been incidental to the sale of alcoholic beverages and the viewing of live, sexually-oriented entertainment. 2 Conditional Use Permit No. 3422 is being, or recently has been exercised in violation of a statute, ordinance, law or regulation. This finding is based upon the following evidence: 3 Sexually-oriented entertainment has recently been provided, conducted or performed upon the premises without a valid permit from the City of Anaheim as required by Section 18.89.030.010 of the Anaheim Municipal Code, and in violation of the City's Sex Oriented Business Ordinance (Chapter 18.89 of the Anaheim Municipal Code); Alterations made to the interior of the structure are contrary to the findings and/or conditions of approval granting such use, and that such interior alterations or modifications are no longer in conformance to the approved plan and specifications on file in the Planning Department marked Exhibit No. 2 of Conditional 6 Use Permi5 No. 3422; and 5. Live entertainment is being, or has been, conducted or performed on the premises involving the display of Specified Anatomical Parts, or which constitutes Specified Sexual Activities as defined in Section 18.89.020 of the Anaheim Municipal Code, and in violation of the terms and conditions of the Entertainment Permit issued by the City of Anaheim on June 27, 1995. H. The property owner has stipulated to termination of Conditional Use Permit No. 1082, permitting on-sale beer and wine in conjunction with the serving of meals. I. The property owner wishes to retain Conditional Use Permit No. 3422, subject to conditions which will ensure operation as a resEaurant, in order to market the property for a future tenant, and staff concurs that this is an appropriate use for the property. J. The property owner and staff concur that such modification of Conditional Use Permit No. 3422, including the imposition of the following additional conditions stipulated to by the property owner, is reasonably necessary to protect the public peace, health, safety and general welfare, or necessary to permit reasonable operation under the conditional use permit as granted, based upon the evidence set forth herein. K. ADDITIONAL CONDITIONS OF APPROVAL-C.U.P. N0.3422 The following conditions are submitted by various City departments acting as an interdepartmental committed and are provided (as of February 20, 1996) if the Hearing Officer elects to recommend that Conditional Use Permit No. 3422 be modified. 1. That subject approval is exclusively for a bona fide restaurant serving meals with on-premise sale and consumption of alcoholic beverages incidental to, and in conjunction with the serving of meals only. 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 7 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 premises establishment, as defined in the California 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 premise (bar) type license ~ nor shall the establishment be operated as a public premise as defined in Section 23039 of the California Business and Professions Code. That the sale of alcoholic beverages for consumption off the premises shall be prohibited. 5. That the gross sales of alcoholic beverages shall not exceed fifty percent (50%) of the gross sales of all retail sales during any three (3) month period. The business owner/manager 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 upon request. 6. That the activities occurring in conjunction with the ~' operation of this restaurant establishment shall not cause noise or other 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, delivers and in cases of emergency. 8. That at all times when entertainment or dancing is permitted, up to three uniformed security guards shall be provided to the satisfaction of, and as required by the Anaheim Police Department, the number to be determined upon meaningful consultation by and between 8 the permittee, holder or lessee of the subject property and the Anaheim Police Department, to deter unlawful conduct on the part of employees or patrons, promote the safe and orderly assembly and movement of patrons and vehicles, and prevent disturbances to the neighborhood by excessive noise created by patrons entering or leaving the 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 of alcoholic beverages with the exception of one (1) sign indicating "cocktails", and one sign promoting accessory entertainment. 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 into the windows of nearby residences~ 11. That the interior of the facility shall be illuminated with lighting of sufficient power to make easily discernible the appearance and conduct of all persons within the facility. 12. That there shall be no live entertainment, amplified music or dancing permitted on the premise 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 California Business and Professions 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 premise under any commission, percentage, salary, or other profit-sharing plan, scheme or conspiracy. 14. That there shall be no coin-operated telephones on the premises that are located outside of the building unless such telephones are affixed to the building wall and located within fifteen (15) feet of the main entrance to the building. 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. 9 16. That there shall be no cover charge or admittance fee required to gain access to the restaurant establishment. 17. That the raised stage area shall be removed and the dining area converted back to its original condition as indicated on the previously-approved plans and specifications submitted by the applicant and on file in the Planning Department marked Exhibit Nos. 1 and 2. 18. That Code Enforcement Staff shall be permitted to inspect subject use bi-monthly for a period of one year from the date of commencement of business operation authorized by this City Council Decision and on a complaint basis thereafter. The petitioner shall be responsible for paying the cost of each inspection in accordance with fees in effect at the time'the inspections are made. 19. That subject property shall be developed substantially in accordance with plans and specifications submitted to the City Anaheim by the petitioner and which plans are on file with the Planning Department marked Exhibit Nos. 1 and 2, with the exception that the bar area that has been replaced with the waitress station may be permitted to remain. 20. That Condition Nos. 2, 8 and 12, above-mentioned, shall be complied with immediately upon adoption of this City Council Decision. 21. That Condition Nos. 5, 7, 9, 10, 11, and 17, above- mentioned, shall be completed within a period of ninety (90) days from the date of this City Council Decision. That modification of the conditions of approval of this conditional use permit does not constitute any action or findings as to compliance regarding any applicable ordinances, regulations or requirements. That this conditional use permit shall expire two (2) years from the date of this City Council Decision." RECOMMENDATION Based on the foregoing Findings and evidence, the Hearing Officer recommends that the City Council: 1. Deny the appeal as to Conditional Use Permit No. 1082 and revoke Conditional Use Permit No. 1082. 10 2. Grant the appeal as to Conditional Use Permit No. 3422 and modify rather than revoke Conditional Use Permit No. 3422. Conditional Use Permit No. 3422 should be modified to incorporate the 23 conditions listed in Finding 5, Section III, Paragraph K. Respectfully submitted this 24th day of March 1996, Victor J. K~leta Hearing Officer 11