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SR-060292-7A 7-A JUN ') 1992 Io.J LUTM:PB:DKW:SMW:APPMNT.pcword.p1an Council Mtg: June 2, 1992 Santa Monica, California TO: Mayor and City Council FROM: city staff SUBJECT: Appeal of a Planning commission Approval of Conditional Use Permit 91-041 to allow an upgrade from an existing Type 20, Off-Sale Beer and Wine alcohol license to a Type 21, Off-Sale General alcohol license for an existing retail wine sales establishment. Address: 625 Montana Avenue Applicant: Murray Weber, Montana Wine Company Appellant: Kelly Olsen INTRODUCTION This is an appeal of a Planning Commission approval of Conditional Use Permit 91-041 on March 18, 1992 to allow an upgrade from an existing Type 20, Off-Sale Beer and Wine alcohol license to a Type 21, Off-Sale General alcohol license for the Montana Wine Company, an existing retail wine sales establishment. This report recommends that the City Council approve the appeal and deny Conditional Use Permit 91-041 to allow the upgrade from a Type 20 to a Type 21, Off-Sale General alcohol license for Montana Wine Company. BACKGROUND The Planning Commission approved CUP 546 on November 2, 1988 to permit operation of a 2,600 square foot retail wine shop and bakery with an off-sale beer and wine alcohol license (Attachment - 1 - 7-A JUtot 2 r::i~L G) . Odeon Bakery, under a separate bus iness 1 icense, occupies approximately 775 square feet of the premises. The City Council approved CUP 90-074 on appeal on March 12, 1991 to allow wine tasting and wine tasting classes in conjunction with retail wine sales on-site (Attachment H). As part of the wine tasting CUP, the council also approved a 1,200 square foot expansion into the adjacent retail space on March 12, 1991. The Type 40, On-Sale Beer and wine alcohol license is pending with the ABC. ABC staff has stated that a separate ABC license to permit wine tasting on-site does not yet exist. Approval of this license (Type 40) allows on-site consumption rights for the property. The Planning Commission approved CUP 91-041 with a vote of 4 to 2 on March 18, 1992 to allow the upgrade of a Type 20, Off-Sale Beer and Wine alcohol license to a Type 21, Off-Sale General alcohol license for the Montana Wine Company (Attachment B). The applicant is pursuing an off-sale general alcohol license as a means to avoid complying with a state law requiring that 50% of all retail sales be from non-alcoholic items for off-sale beer and wine alcohol outlets in Los Angeles county. Formal charges are pending with the state Department of Alcohol Beverage Control (ABC) regarding non-compliance with this state law (Attachment C, G & H). An April 7, 1992 hearing with the state Office of Administrative Hearings was continued at the applicant's request. According to ABC staff the establishment must be brought into compliance with the 50% non-alcoholic sales requirement or face revocation of the existing off-sale beer and wine license. While - 2 - ABC staff could not divulge details of the case, they indicated that suspension of the existing off-sale beer and wine alcohol license and payment of fines appears likely. The ABC is required to inform the applicant that they have the option to apply for the Type 21, Off-Sale General alcohol license as an option to compliance with the state statute. The charges against the applicant will not be dropped by the ABC regardless of whether the CUP to allow the alcohol license upgrade is obtained (Attachment C). Prior to the application for a Type 21 license, ABC records show two violations for the premises consisting of sales to a minor (a Santa Monica Police Department employee) and failure to furnish books and records to the state agency (Attachment c, G & H). The applicant paid a $1,500 fine in-lieu of a 10-day suspension of the alcohol license for the violation for sales to a minor. To staff's knowledge, the books and records charge has not yet been resolved. APPEAL ISSUES The appellant objects to the upgrading of the existing Type 20, Off-Sale Beer and wine alcohol license to a Type 21, Off-Sale General, alcohol license because, "... the city did not want another 'liquor store I so close to a school and residences" ~ staff proposed denying the CUP~ a store employee had "...supplied false information to the City Council", (Attachment J); and, consumption (of alcohol) had been observed on-site which violated the conditions of the Conditional Use Permit (Attachment A & I). - 3 - The site is located in the C2 (Neighborhood Commercial) District with a surrounding residential neighborhood. A concern expressed by both the Planning Commission and City council is the proximity of the establishment to several schools within the vicinity and to the surrounding residential neighborhood. Staff is also concerned about this proximity and the potential for the outlet to become a full liquor store. Police Department staff has indicated that liquor stores are often "problemll locations associated with an increase in criminal activity including public intoxication and driving under the influence, and the source of noise, parking, and traffic complaints by neighboring residents (Attachment I). The Planning Commission, in response to the concern noted in the paragraph above, included conditions proposed by the applicant which limit storage and display of spirits to no more than lOt of the overall display and storage area, establish a fixed location for display of spirits, stipulate that sales of spirits may not exceed 10% of gross sales, and require only full-size (no convenience-size) bottles of liquor or spirits be offered for sale (see pages 5 and 6, Attachment C). The conditions also stipUlate that the primary use of the premises is to remain a retail wine sales establishment. Staff is concerned that the enforcement of these conditions may be problematic. The appellant states that II... an employee of the store supplied false information to the city Council...with the knowledge of the owner as to this false testimony.1I (Attachment A). This incident occurred at the City Council hearing of March 12, 1991 regarding - 4 - an appeal of the pending Type 40 On-Sale Beer and Wine alcohol license. The city Attorney indicated to the Mayor and City Council that a statement by an employee of the establishment, in which he stated to the Council that charges for sale to a minor were dropped after he informed the Judge that he knew the Police Officer, were untrue (Attachment J). The City Attorney also stated that the employee ll...was convicted by plea of a violation of furnishing alcohol to a minor. 11 The Police Officer present at the time the violation took place also stated that he did not know this employee personally (Attachment I). Finally, Police Department staff observed consumption of wine on the site at the adjacent bakery, in violation of the approved CUP. SUID1ARY AND CONCLUSION Based on concerns of the potential for increased crime and problems for the adjacent residential neighborhood and schools, staff believes that the proposed alcohol outlet upgrade to allow sales of spirits could have a negative impact on the community. staff feels that the granting of a Conditional Use Permit to allow a General Off-Sale alcohol license is not an appropriate alternative for the community. Addition of the Off-Sale General alcohol license has the potential to add increase traffic, noise, and crime problems to the surrounding residential neighborhood and is not in the best interest of the community. Consistent with the original recommendation to the Planning Commission, staff recommends that the Council approve the appeal and deny Conditional Use Permit 91-041 to allow an upgrade of a - 5 - Type 20, Off-Sale Beer and wine alcohol license to a Type 21, Off-Sale General alcohol license for the Montana Wine Company. BUDGET/FINANCIAL IMPACT The recommendation presented in this report does not have any budget or fiscal impact. REQUIRED NOTIFICATION Pursuant to Municipal Code section 9131. 5, notice of the City Council meeting was mailed to all owners and residential and commercial tenants of property located within a 500 foot radius of the project at least ten consecutive calendar days prior to the City council meeting. A copy of the notice is contained in Attachment D. RECOMMENDATION It is respectfully recommended that the Council approve the appeal and deny Conditional Use Permit 91-041 to allow an upgrade from an existing Type 20, Off-Sale Beer and Wine, alcohol license to a Type 21, Off-Sale General, alcohol license for the Montana Wine Company. If the council does approve the appeal, the following are suggested findings to deny the CUP. If the Council denies the appeal (approves the CUP), the planning Commission's findings and conditions should be adopted by the City Council. - 6 - CONDITIONAL USE PERMIT FINDINGS 1. The proposed use is one conditionally permitted within the subject district and complies with all of the applicable provisions of the "City of Santa Monica Comprehensive Land Use and Zoning Ordinance", in that the proposal to upgrade the existing Type 20, Off-Sale Beer and wine, alcohol license to a Type 21, Off-Sale General, alcohol license is a conditionally permitted use in the C2 (Neighborhood Com- mercial) District. 2. The proposed use would impair the integrity and character of the district in which it is to be established or lo- cated, in that the applicant is not in compliance with state law for Type 20 alcohol outlets approved in Los An- geles County since 1985 requiring that 50% of all retail sales be from non-alcoholic products, that two ABC viola- tion have occurred for the premises consisting of sales to a minor and failure to provide books and receipts to the ABC and in that the Santa Monica Police Department has observed patrons consuming wine on-site at the adj acent establishment in violation of Conditional Use Permit con- ditions and in that conversion to an off-site general licens, allowing the sale of spirits, may lead to greater impact on Pol ice Department enforcement resources, based on experience with other such outlets in the City, and in that the site is in close proximity to a school. 3. The proposed use would not be compatible with existing and permissible land uses within the district and the general area in which the proposed use is to be located, in that although the existing retail wine sales establishment is a permitted use in the C2 district and the proposal for an alcohol outlet upgrade to a Type 21 alcohol license is a conditionally permitted use, establishment of such use may lead to an adverse impact on Police enforcement resources, which has been the case at other liquor store sites in the city. 4. The proposed use is not consistent with the goals, objec- tives, and policies of the General Plan, in that the ap- plicant is not in compliance with state law for Type 20 alcohol outlets approved in Los Angeles County since 1985 requiring that 50% of all retail sales be from non- alcoholic products, that two ABC violations have occurred for the premises consisting of sales to a minor and failure to provide books and receipts to the ABC and in that the Santa Monica Police Department has observed patrons consuming wine purchased at the wine store on-site at the adjacent establishment in violation of Conditional Use Permit conditions, and in that conversion to an off- site general license, allowing the sale of spirits, may lead to greater impact on Police Department enforcement resources, based on experience with other such outlets in - 7 - the City, and in that the site is in close proximity to a school. 5. The proposed use would be detrimental to the public inter- est, health, safety, convenience, or general welfare, in that the applicant is not in compliance with state law for Type 20 alcohol outlets approved in Los Angeles County since 1985 requiring that 50% of all retail sales be from non-alcoholic products, that two ABC violations have oc- curred for the premises consisting of sales to a minor and failure to provide books and receipts to the ABC and in that the Santa Monica Police Department has observed patrons consuming wine purchased at the wine store on-site at the adjacent establishment in violation of Conditional Use Permit conditions, and in that conversion to an off- site general license, allowing the sale of spirits, may lead to greater impact on Police Department enforcement resources, based on experience with other such outlets in the City, and in that the site is in close proximity to a school. 6. The proposed use will not result in an overconcentration of such uses in the immediate vicinity, in that the pro- posal is for an existing alcohol outlet for retail sales of wine and in that there are two other alcohol outlet within a 500' radius of the site. ALCOHOL OUTLET FINDINGS 1. The proposed use and location are not in accordance with good zoning practice, in the public interest, and necessary that substantial justice be done in that the applicant is not in compliance with state law for Type 20 alcohol outlets approved in Los Angeles County since 1985 requiring that 50% of all retail sales be from non-alcoholic products, that two ABC violations have occurred for the premises consisting of sales to a minor and failure to provide books and receipts to the ABC and in that the Santa Monica Police Department has observed patrons consuming wine purchased at the wine store on-site at the adjacent establishment in violation of Conditional Use Permit conditions, and in that conversion to an off-site general license, allowing the sale of spirits, may lead to greater impact on Police Department enforcement resources, based on experience with other such outlets in the City, and in that the site is in close proximity to a school. 2. The proposed use will adversely affect the welfare of neighborhood residents in a significant manner in that in that conversion to an off-site general license, allowing the sale of spirits, may lead to greater impact on Police Department enforcement resources, based on experience with other such outlets in the city, and in that the site is in close proximity to a school. - 8 - 3. The proposed use will detrimentally affect nearby neighborhoods considering the distance of the alcohol outlet to residential buildings, churches, schools, hospitals, playgrounds, parks, and other existing alcohol outlets in that there is one school in close proximity to the site and one church located just outside of the 500' site radius. 4. The proposed use is not compatible with existing and potential uses within the general area in that the proposal is for an upgrade to a Type 21, Off-Sale General, alcohol license permitting the off-sale of distilled spirits with the potential for an adverse impact on Police enforcement resources, which has been the case at other liquor store sites in the City, and in that a school and a church exist within general proximity to the site. 5. Traffic and parking congestion may result from the proposed use in that the proposal for an upgrade to a Type 21, Off-Sale General, alcohol license represents an intensification of use and and the sale of distilled spirits would potentiallY contribute to an increase of traffic, parking, noise, drunk-driving and crime problems. 6. The public health, safety, and general welfare are not protected in that the proposal for an upgrade to a Type 21, Off-Sale General, alcohol license represents an intensification of use and and the sale of distilled spirits would potentially contribute to an increase of traffic, parking, noise, drunk-driving and crime problems. 7. Harm to adjacent properties may result in that the proposal for an upgrade to a Type 21, Off-Sale General, alcohol license represents an intensification of use and and the sale of distilled spirits would potentially contribute to an increase of traffic, parking, noise, drunk-driving and crime problems. 8. The proposed use is inconsistent with the objectives of the General Plan in that the proposal for an upgrade to a Type 21, Off-Sale General, alcohol license represents an intensification of use and and the sale of distilled spiri ts would potentially contribute to an increase of traffic, parking, noise, drunk-driving and crime problems. ATTACHMENTS A. Appeal form dated 3/13/92. B. statement of Official Action dated 3/18/92. C. staff Memorandum to Planning Commission dated 3/4/92. D. Notice of Public Hearing dated 5/12/92. E. Accusation Under Alcoholic Beverage Control Act and state Constitution, Montana Wine Company, dated 8/11/91. F. Notice of Hearing on Accusation, Montana wine Company, dated 2/10/92. - 9 - G. statement of Official Action dated 11/2/88. H. statement of Official Action dated 3/12/91. I. Declaration of Larry Horn dated 3/18/92. J. Memorandum from city Attorney to Mayor and city council dated 3/19/91. Prepared by: D. Kenyon Webster, Planning Manager Susan White, Assistant Planner Planning Division Land Use and Transportation Management Department pcword/appmnt SMW - 10 - >' '-3 :J>I ,... ~ ~ :s: ~ Z .." - :;. = 0')001