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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