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HomeMy WebLinkAbout08-20-2013 ss1 presentation & receipt of alcohol moratorium ord FROM: Derek Johnson, Community Development Director Prepared By: Doug Davidson, Deputy Community Development Director SUBJECT: STUDY SESSION TO REVIEW EFFECTIVENESS OF 2012 ALCOHOL OUTLET AMENDMENTS AND CONSIDER A MORATORIUM ON NEW ALCOHOL OUTLETS IN THE DOWNTOWN RECOMMENDATION 1. Receive a presentation regarding the existing regulatory frame work governing alcohol outlets, including the State and local regulations and procedures; and 2. Receive the one-year review of the 2012 Alcohol Amendments, including the Deemed Approved Ordinance, Late Hour Alcohol Service, and Police Department data for incidents in the downtown; and 3. Defer the review of additional regulatory tools, such as the formalization of the Public Convenience or Necessity (PCN) process, to the Alternatives Report of the Land Use and Circulation Update; and 4. Review and provide direction on making required findings pursuant to State law necessary to adopt an interim ordinance as an urgency measure prohibiting new alcohol serving in the downtown. REPORT-IN-BRIEF On December 18, 2012 the Council directed staff to explore the feasibility of establishing a moratorium on new alcohol outlets downtown, including restaurants requesting to serve alcohol after 11:00 p.m. Council action was prompted by three requests for restaurants to serve alcohol past 11:00 p.m., which were scheduled for the administrative use permit hearings on December 21, 2012. The Council was concerned that many restaurants could “morph” into bars and potentially increase the number of late night drinking establishments and the public safety problems associated with them. This study session report will review the existing policies and standards for new alcohol outlets, particularly restaurants serving alcohol late at night. The one-year review of the 2012 Alcohol Outlet Amendments will analyze the effectiveness of the new regulations, including Police Department incident data in the downtown. The report will review additional tools available to regulate the number of alcohol serving downtown establishments, particularly the Public Convenience or Necessity Letter (the “PCN”). The report outlines the legal requirements to establish a moratorium on new alcohol outlets while staff develops policies to address the over Meeting Date Item Number August 20, 2013 SS1 - 1 Study Session – Alcohol Outlets Page 2 concentration of alcohol outlets in the downtown. Lastly, the report will address the impact on existing projects should Council direct the preparation of a moratorium and the development of expanded regulations for alcohol outlets. Background Leading up to adoption of the 2012 Alcohol Outlet Amendments, staff collected information and developed strategies to reduce public safety problems and negative impacts associated with alcohol outlets. In October 2009, staff presented a study to the Council that correlated police-related incidents with alcohol outlets, along with several recommendations. The study, conducted by Dr. Fried Wittman of CLEW Associates, utilized a tool called Alcohol/Drug Sensitive Information Planning System in a Geographic Information System, or ASIPS/GIS. Staff received direction from the City Council to explore a range of strategies, improve local regulation, and engage a wide variety of stakeholders in the process. On November 16, 2010, staff provided an update to the Council on progress made in exploring these strategies and initiated a Nightlife Public Safety Assessment. The Nightlife Public Safety Assessment report was presented to Council in November, 2011. Council direction was to bring forth amendments to the Zoning Regulations that were intended to reduce public safety problems associated with alcohol outlets. On June 19, 2012, the Council adopted Ordinance No. 1578 to enhance alcohol outlet regulations including: 1. A revised zoning definition of a “restaurant”, and 2. A new restaurant zoning definition (late hour alcohol service – after 11:00 p.m.), 3. A zoning definition for liquor stores, and 4. An Administrative Use Permit process for restaurants with late hour alcohol service and liquor stores, and 5. A deemed approved ordinance to establish performance standards for existing alcohol outlets without use permits. The Council action included a one-year review of the amendments to evaluate the effectiveness of the new regulations in reducing the impacts associated with alcohol consumption in the downtown. Morphing of Restaurants into Bars Along with the Deemed Approved Ordinance for existing alcohol outlets (without use permits), the other main focus of the 2012 Amendments was the late hour alcohol service provisions to address morphing of restaurants into bars. A new land use definition was created for restaurants serving alcohol late at night (after 11:00 p.m.) with a corresponding requirement for an administrative use permit. The use permit provides a platform to include the new enhanced and enforceable conditions to address the morphing of restaurants into bars. The approved Ordinance requires these applications to be considered at a noticed administrative public hearing. The California Alcoholic Beverage Control Department (ABC) has licensing categories for “restaurants” and “bars.” Despite these separate categories, the ABC licensing system allows “restaurants” (serving food as the primary activity) to also function as “bars” (serving alcohol as the main focus). California ABC regulations include five main license categories that distinguish bars from restaurants based on meal service and the type of alcohol served: SS1 - 2 Study Session – Alcohol Outlets Page 3 1.On-Sale Beer and Wine for Bona Fide Public Eating Place (where full meals are served) or license Type 41, 2.On-Sale General for Bona Fide Public Eating Place ((Beer, Wine and Spirits, General Restaurant) or license Type 47, 3.On-Sale General for Public Premises (where full meals are not served, Bar/Tavern) or Type 48, 4.On-Sale Beer (Beer Bars) or Type 40, 5.On-Sale Beer and Wine for Public Premises (Beer & Wine Bars) or Type 42. While there are 22 types of alcohol licenses under ABC criteria, these are the five most prevalent in the downtown. Table 1 and Table 2 below show the number of these types of licenses in the downtown census tracts (in addition, downtown census tract 111.01 shows 2 Type 75 licenses, Brewpub/Restaurant). Attachment 1 is a map of the downtown census tracts with alcohol licenses depicted by type in their location. ABC uses census tracts for purposes of quantifying concentrations of alcohol licenses. The City contains 11 census tracts within (or partially within) the City limits. The majority of alcohol licenses are in census tract 111.01 (Higuera Street and the downtown core) but census tract 111.02 is also in the downtown area. Both census tracts are over concentrated under ABC criteria. Over concentrated is defined as more than one alcohol license for each 2,000 people per census tract. Table 1: Quantity and Type of Alcohol Licenses in Census Tract 111.01 2 30 5 20 4 2 63 0 10 20 30 40 50 60 70 40 41 42 47 48 75 Total Qu a n t i t y Type of Alcohol License Quantity &Type of Alcohol License for Census Tract 111.01 # of Licenses SS1 - 3 Study Session – Alcohol Outlets Page 4 Table 2: Quantity and Type of Alcohol Licenses in Census Tract 111.02 The distinctions between “traditional restaurants,” “bars,” and “nightclubs,” in state law are ambiguous. However, local land use and zoning ordinances can make such distinctions based on land use types, location, and operations. Local zoning ordinances assign proper locations and the appropriate review process for each land use to assure operations are compatible with the surroundings (i.e. residences, retail, schools, religious facilities, etc.) and do not create public safety problems. Local jurisdictions can strengthen these controls by requiring a conditional use permit for alcohol sales and establish operational requirements to address health and safety issues. Fried Wittman is the director of CLEW Associates, a nationally recognized expert in alcohol policies for local governments. It was his research in the ASIPS/GIS study that launched the Alcohol Amendments in 2009. According to Fried Wittman in his just published paper, Restaurants that “Morph” into Bars and Nightclubs in California Communities, “cities that apply local control to all bars and restaurants – that is, to all local ABC License Types 40, 41, 42, 47, and 48 – can both encourage an active restaurant / night life community, while avoiding conflicts with other land uses, public safety problems, and unpleasant surprises and expenses.” The City employed a full spectrum of regulatory techniques in the 2012 Zoning Amendments - elevating the review level, enhancing conditions of approval, addressing the morphing issue, and setting performance standards for existing outlets. To address the morphing issue, City Council adopted a new land use definition – Restaurants With Late Hour Alcohol Service – to establish conditions and a requirement for a use permit for new or existing restaurants that want to serve alcohol past 11:00 pm. The ASIPS study and Police Department reports confirm that the public safety problems associated with alcohol increase substantially as the night gets later. The selection of 11:00 p.m. was made because this is the time during the evenings when law enforcement begins to encounter alcohol- related incidents and some restaurants begin functioning more like bars. New restaurants that wish to offer late night alcohol service require administrative use permits. Existing restaurants serving 14 4 2 20 0 5 10 15 20 25 41 47 48 Total Qu a n t i t y Type of Alcohol License Quantity &Type of Alcohol License for Census Tract 111.02 # of Licenses SS1 - 4 Study Session – Alcohol Outlets Page 5 alcohol beyond 11:00 pm are considered non-conforming uses, subject to the performance standards found in the Deemed Approved Ordinance. Another benefit of the new definition and use permit requirement is the ability to place “bar-like” conditions on the restaurants serving alcohol late at night. Previously, all restaurants were allowed by right in the downtown and not subject to any conditions. The use permit process can place the newly enhanced standard conditions for alcohol outlets onto restaurants serving past 11:00 p.m. Use permit conditions of approval include limits on hours, noise control, manager on premises, security plan, alcohol server training, food available at all times, and others to ensure that the business is run in a manner intended to minimize adverse impacts of alcohol related behaviors. Given the particulars associated with a certain location or operation, a use permit can be denied based on findings of incompatibility and public safety concerns. Administrative use permit decisions are appealable to the Planning Commission and ultimately to the City Council. One-Year Review Late Hour Alcohol Service – Restaurants Four requests for late hour alcohol service have been approved since August, 2012 when the Alcohol Amendments took effect. It was the postings for three administrative use permits for late hour alcohol service on December 21, 2012, that caused some community concern, prompted the City Council to inquire about the recently revised regulatory approach and the number of outlets downtown, and to direct staff to return with information relevant to consideration of a moratorium. The Community Development Director approved one of the three use permit requests on that date; Eatz by Design was approved to sell alcohol (beer and wine only) until 12:00 a.m. on weekends and 11:00 p.m. on weeknights. The request by Sidecar Restaurant was continued, while the request from Novo Restaurant was withdrawn. Sidecar Restaurant received administrative approval on February 15, 2013 to sell alcohol until 12:00 a.m. on weekends and 11:00 p.m. on weeknights, as did the Turncoat Wine Company (restaurant use) in the Creamery on March 1, 2013. These three requests were all approved under the condition that the restaurants continue to offer full menu service and not rearrange chairs and tables to morph into a bar or nightclub. Additionally, because each use was defined as a restaurant, only one additional hour of alcohol service on the weekends was approved. One additional late hour alcohol service application was approved on July 8, 2013 for Buffalo Wild Wings in the Madonna Plaza (old Taco Bell site). Buffalo Wild Wings’ request to sell alcohol was approved to sell alcohol until 2:00 a.m. as allowed under State law. The site is not in the over concentrated downtown census tracts and there are no residential uses in the direct vicinity. The Police Department concurred with the approval with no concerns at this location. Nightclub Use Permit A nightclub Use Permit was approved for Creekside Brewery (1040 Broad St.) on August 2, 2013. The location of the nightclub area below-ground is a unique situation that mitigates any potential noise impacts. Recently enhanced standard conditions of approval, such as requiring queue control, security plan, manager on premises, and food available at all times were included in the approval. No changes were approved to the existing alcohol license. SS1 - 5 Study Session – Alcohol Outlets Page 6 Deemed Approved Ordinance The Deemed Approved Ordinance applies to existing alcohol serving establishments without use permits and contains the following standards: 1. That it does not result in adverse effects to the health, peace or safety of persons residing or working in the surrounding area; 2. That it does not result in jeopardizing or endangering the public health or safety of persons residing or working in the surrounding area; 3. That it does not result in repeated nuisance activities within the premises or in close proximity of the premises, including but not limited to disturbance of the peace, illegal drug activity, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, excessive littering, loitering, graffiti, illegal parking, excessive loud noises, especially in the late night or early morning hours, traffic violations, curfew violations, lewd conduct, or police detentions and arrests; 4. That it does not result in violations to any applicable provision of any other city, state, or federal regulation, ordinance or statute; 5. That its upkeep and operating characteristics are compatible with and will not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood. There have been no violations of the Deemed Approved Ordinance from its effective date in August, 2012 until August, 2013. The fact of having the ordinance on the books has in itself gone a long way in preventing alcohol-related incidents. Also, the City’s partnership with the Downtown Association in preparation and implementation of the ordinance has created an environment of working together towards compliance and maintaining the downtown as an attractive and safe place. The Downtown Association, particularly its Food, Beverage, and Services Committee (formerly the Safe Night Life Association) has made progress with its programs and instituted some new efforts in the last year. They will be submitting a separate agenda correspondence explaining these accomplishments. Police Incident Statistics and Summer Downtown Observations The Police Department (PD) has compiled statistics comparing alcohol-related incidents downtown over the last two years. As the statistics show, the numbers have increased in all areas. The focused Police Department efforts and proactive stance on enforcement are the primary reasons for the increases. According to the PD, they do not believe that there is a growing problem and believe that the bars are being responsive to PD requests. The downtown bar/restaurant owners have worked very openly with the officers and a good working relationship has been established. The statistics below are broken down by total incidents in the downtown, arrests, alcohol offenses, intoxicated persons, and assaults. The time frame for the incidents is from 9:00 p.m. until 3:00 a.m. to focus on the busiest time in the downtown. SS1 - 6 Study Session – Alcohol Outlets Page 7 Community Development and Police Department staff conducted site visits of downtown alcohol outlets over the summer focusing on late hours and weekends. Written notification was provided to all alcohol licensees downtown about the upcoming visits. The time and date of the visits was not communicated to these outlets. The notification letter stressed that the intent of the site visits was compliance with the new regulations and use permit conditions, and not punitive enforcement. The letter also stated that the summer visits were not triggered by complaints or violations, but were simply part of the City’s routine compliance efforts. During the summer visits, staff focused on the bars, nightclubs, and late hour serving restaurants. For the most part, the alcohol outlets were in compliance with their use permit conditions, performance standards of the Deemed Approved Ordinance, and ABC license provisions. Staff did observe two establishments with amplified music exceeding the City’s Noise Ordinance and exceeding the boundaries of their use permit requirements. Staff followed up with phone calls and Notices to Correct. These outlets will be continually monitored and additional enforcement action will be taken as necessary. State and National Recognition of the City’s Alcohol Outlet Regulations The City’s alcohol outlet regulations have received State and national recognition over the last year, particularly the use permit requirement to address morphing of restaurants into bars late at night. The Deputy Director participated (via phone) on a panel at the Alcohol Policy 16 Conference in Arlington, VA on April 4th. The session was entitled: “How California Restaurants Morph into Bars and What Can Be Done About It.” The requirement for a use permit for restaurant uses serving alcohol after 11:00 p.m. was noteworthy to the audience since it allows placement of conditions on restaurants, which heretofore have been considered allowed-by-right uses in downtown commercial zones regardless of how late they serve alcohol. The City’s public participation program was also highlighted, particularly the working relationship with the affected restaurant/bar owners in formulating and implementing the Ordinance. 0 200 400 600 800 1000 1200 1400 1600 1800 All Incidents All Arrests Alcohol Offenses Intoxicated Persons Assaults Nu m b e r o f I n c i d e n t s Type of Incidents Reported Downtown Incidents 6/11-6/12 6/12-6/13 N= 3% N= 27% N= 24% N= 5% N= 26% N=Percentage Increased over the last year SS1 - 7 Study Session – Alcohol Outlets Page 8 On May 29th, Fried Wittman, CLEW Associates, shared the City’s morphing policies and his own research on responsible beverage service at the Club Health Conference in San Francisco. Following these two presentations and the publication of Dr. Wittman’s paper, staff fielded inquiries about the City’s alcohol outlet regulations from the cities of Costa Mesa, Hermosa Beach, and San Diego. Dr. Wittman’s Policy Brief for the California Department of Alcohol and Drug Programs, with San Luis Obispo as the case study, is included in the agenda report (Attachment 4). Public Convenience or Necessity (PCN) – A Regulatory Tool for New Alcohol Outlets During the public hearing and outreach process for the new alcohol outlet regulations and recent use permit reviews, some members of the community questioned “how many is too many” alcohol outlets in the downtown. The recent LUCE survey indicated that the community has concerns about the number of alcohol establishments in the downtown. The recent alcohol outlet amendments did not specifically address this question of overall concentration. Research would be required to determine what type of regulatory framework could be developed to preclude new establishments or limit their density and distribution. Nonetheless, the recent amendments do provide a tool for limiting alcohol service for restaurants and other techniques described in this report can be used to strongly limit or outright prohibit the establishment of additional bars and taverns. The ABC is charged with the responsibility under State statute to review and issue licenses for the sale and/or manufacture of alcoholic beverages. State law provides that ABC shall deny an application for a license if the issuance of that license would either create a law enforcement problem, or result in, or add to an undue concentration of licenses, unless a determination is made by the governing City or County that public convenience or necessity would be served by issuance of the license or, if the City does not make such a finding, if the applicant can demonstrate the public convenience or necessity would be served by the license approval. The PCN process provides another tool for the City to use in influencing the number of new liquor licenses issued by ABC. The PCN is an existing, more immediate tool of which the City could take better advantage by creating a more formal process for reviewing and approving requests for PCN letters for new liquor licenses downtown, including premise-to-premise transfers from outside to inside the over concentrated tract. As explained below, this tool is effective in limiting the number of new bar outlets in the downtown, but not the number of new restaurants serving alcohol. The City’s new requirement for a use permit for restaurants serving alcohol past 11:00 p.m. was intended to address this loophole and limit the “morphing” of bars into restaurants, and not place an undue regulatory burden on establishing legitimate restaurants. The ABC “Undue Concentration” law (B&P 23958.4) allows a City or County to create a local PCN application process. Through such a process, the City can formally establish and apply criteria by which to evaluate requests for PCN letters and submit the City’s formal action and findings related to law enforcement and undue concentration issues associated with a particular application as part of the ABC license application process. The City’s findings and actions denying a PCN can then form the basis of a denial of a license for a bar located in high crime areas or in areas with an over concentration of alcohol outlets measured by population within census tracts. This local review is typically done through an application process and a fee is charged for this review. However, the law allows ABC to issue certain types of licenses (a nonretail license, a retail on-sale bona fide eating place license, a retail license issued for a hotel, motel, or other lodging SS1 - 8 Study Session – Alcohol Outlets Page 9 establishment, a retail license issued in conjunction with a beer manufacturer's license, or a winegrower's license) in an over concentrated area “…if the applicant shows that public convenience or necessity would be served by the issuance (emphasis added).” While the City is not precluded from weighing in on these types of licenses, the City’s finding of public convenience and necessity is not required. By allowing the applicant for a restaurant (Type 41 or Type 47) license to make their own PCN showing without the requirement of City involvement, the ABC law opens the door to potential morphing of restaurants into bars. The City’s new process for late hour alcohol service closes this door, because a City use permit is required, in addition to the ABC license, if the restaurant wishes to serve alcohol past 11:00 p.m. regardless of the ABC license type. ABC will honor the City’s use permit and place consistent conditions on the restaurant alcohol license. Moreover, the traditional ABC practice is to limit alcohol service until 12:00 am on weekends and 10:00 pm on weekdays for restaurants that serve alcohol and are located within 100 feet of a residence, regardless of whether the residents consent to any different hours. The table below shows the types of licenses that require a City PCN and/or CUP (Conditional Use Permit). License Type PCN CUP Type 20 – Off-Sale Beer & Wine X Type 21 – Off-Sale Beer, Wine, and Spirits X X Type 40 – On-Sale Beer (Pub) X X Type 41- On Sale Beer & Wine (Restaurant) Type 41 – Late Hour Alcohol Service X Type 42 – On-Sale Beer & Wine (Bar) X X Type 47- On Sale General (Restaurant) Type 47 – Late Hour Alcohol Service X Type 48 – On-Sale Beer, Wine, and Spirits (Bar) X X Table 3: License Types by PCN and CUP The PCN rules apply to license requests in areas that are over concentrated and/or have high crime rates. Over concentrated is defined as more than one alcohol license for each 2,000 people per census tract and high crime rate as an area that exceeds the City’s average crime rate by 20 percent. There is no distinction between the types of licenses that are issued, just an overall count of the total number of licenses. Once this quantity is reached within a census tract it is considered over concentrated and more bar and tavern licenses can only be obtained through proof of a PCN. According to the San Luis Obispo ABC office, it is often more difficult for bars -type 42 (on-sale beer and wine) and 48 (on-sale beer, wine, and spirits) - to receive a license, unless a jurisdiction approves their reasoning for PCN. However, as stated above, those applicants applying for a restaurant licenses (types 41 and 47) can write a letter to make a showing of Public Convenience or Necessity directly to ABC in order to request an alcohol license and it is more difficult for the jurisdiction to influence ABC to deny the request where the City’s finding is not required. A premise-to-premise transfer license within the downtown does not trigger a PCN since it is not a new license within the over concentrated tract (ABC interpretation of CA Business and Professions Code Section 23958.4). The relocation of SLOBREW is the most recent example of this state SS1 - 9 Study Session – Alcohol Outlets Page 10 provision. However, as was the case with SLOBREW, a bar at a new location requires a use permit since use permits run with the land and are not transferable. The City’s process with premise-to- premise bar license transfers within the downtown is to protest the transfer of license with ABC, which allows the pertinent conditions of the use permit to be placed on the license. This has been a common Police Department practice over the years and has been strengthened in recent meetings with ABC. Over the last four years, the Police Department has “conditionally protested” 12 to 20 licenses annually. Staff has also coordinated with the ABC license process to request that ABC include the use permit conditions on restaurant licenses serving alcohol after 11:00 p.m. as conditions on the ABC license. Thus, violation of a use permit condition will also constitute a violation of the alcohol permit actionable by ABC. Current PCN Process The City does not currently have an application process, required findings, or a fee for processing PCNs. Currently a PCN is requested in writing from the business owner for approval to the Community Development Director. The Director’s approval is in the form of a letter and not subject to any level of public hearing or public process. Community Development staff works closely with the Police Department in review of alcohol licenses and/or outlets. The Director’s decision is appealable to the City Council (see Attachment 3, PCN White Paper for more information). Staff intends to include a fee for an application in this year’s annual fee resolution. Staff is recommending that Council direct staff to return with recommended revisions to adopt a PCN process and other potentially desirable policy revisions as part of the LUCE Alternatives Report, which will be before the Council in November, 2013. While some cities codify a PCN process within a separate Municipal Code Section on alcohol regulation, it is very common to process the PCN request concurrently with the associated use permit or zoning entitlement. In the City, any new bar, nightclub, or late hour serving restaurant currently requires a use permit. The work required to properly analyze, consider, and issue a PCN should be done with tremendous care and consideration for the general welfare of the City. Since the City has just modified the Zoning Regulations (Chapter 17) for new land use definitions, processes, and the Deemed Approved Ordinance, the Zoning Regulations present a ready framework in which to adopt any new PCN procedures that emerge from the LUCE process. Any other additional policies related to number and location of alcohol outlets should be located in that section, as well. Though no PCN requests have been made for a few years, having a process and policy in place will help create clarity for the community, City Council and businesses. Potential Moratorium on New Alcohol Outlets Government Code §65858 1 governs the adoption of interim ordinances, such as an emergency ordinance, that relate to zoning and planning issues. Of relevance, Government Code §65858 limits how long an interim ordinance may remain in effect. Under either subsection (a) or subsection (b), the longest period of time that an interim ordinance may remain in effect is two years, providing that during that time period, the city has taken the requisite subsequent actions to extend the interim ordinance and the initial and subsequent ordinance is approved by four-fifths of the City Council. 1 65858. (a) Without following the procedures otherwise required prior to the adoption of a zoning ordinance, the legislative body of a county, city, including a charter city, or city and county, to protect the public safety, health, and welfare, may adopt as an urgency measure an interim ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body, planning commission or the planning department is considering or studying or intends to study within a reasonable time. SS1 - 10 Study Session – Alcohol Outlets Page 11 Under §65858 a city may adopt an interim ordinance as an urgency measure prohibiting any uses that may be in conflict with a contemplated zoning proposal that the Council is considering or intends to study within a reasonable time. The intent of an urgency ordinance in this context would be to allow the City time to research and propose new or expanded regulatory measures for alcohol outlets. An urgency ordinance is initially in effect for 45 days. After noticing and conducting a public hearing, the Council could then extend an interim ordinance for 10 months and 15 days and, subsequently, could extend the interim ordinance for one year. Any and all extensions also require a four-fifths vote. In order to adopt or extend an interim urgency ordinance, the Council must make findings that there is a current and immediate threat to the public health, safety, or welfare. These findings must be supported by facts and information in the administrative record. The ordinance must contain specific findings that the approval of additional zoning entitlements – in this case, alcohol outlets, bars, or late hour alcohol serving restaurants - would result in that threat to public health, safety, or welfare. The City Charter, Section 605, similarly requires that emergency measures be approved by four affirmative votes and contain a statement of the reasons for its urgency. Although the number of police-related incidents downtown increased over the last year it is unclear if this or other data rises to the level of an urgency ordinance to establish a moratorium. The number of incidents increased over the last year, but this was largely due to increased enforcement downtown. The reported incidents related to alcohol outlets generally in the downtown, not the additional hours of alcohol service granted this last year. There are no data or analysis currently available correlating additional licenses issued downtown over the last year to increased emergency calls, property damage, criminal or nuisance behavior in the proximity of a new alcohol establishment, or directly attributable to them. As the one-year review above stated, the City approved three late hour alcohol restaurants and one nightclub use since the 2012 Amendments took effect. The three restaurant use permits were each limited to midnight sales of alcohol. The nightclub use permit involved no change the to the existing liquor license. These sites were not the cause of police-related incidents since they opened for business or began operating under their amended alcohol service hours. If the slight increase in alcohol service over the last year is not a direct cause of additional police calls, the other situation to review in establishing an urgency ordinance is the baseline condition in the downtown over concentrated tract. The most comprehensive and current baseline information is contained in the ASIPS/GIS evaluation prepared by Fried Wittman in 2008/2009. It was this analysis shared at a Council study session in October, 2009 that started the process of updating the policies and standards for alcohol outlets downtown. The report analyzed incident and arrests downtown overlaid with the locations of alcohol outlets and evaluated as to frequency by time of day, day of week, location, and license type. This understanding of the nature, location, and frequency of enforcement incidents created the foundation for Council direction on addressing the public safety problems associated with alcohol outlets. The best practice recommendations from that direction have all been implemented: new definition of restaurant, elevated use permit review, enhanced standard conditions, address morphing of restaurants into bars, Deemed Approved Ordinance for existing outlets, increased enforcement, and improved communication with bar and restaurant owners. The best practice recommendations were designed and implemented to mitigate the public safety problems downtown related to alcohol. SS1 - 11 Study Session – Alcohol Outlets Page 12 The Alcohol Outlet Amendments have been in effect for one year. It is difficult to draw conclusions from the limited data on how effective the new regulations and increased enforcement have been. It is not known if the City has a higher incident ratio than other comparable cites, since the ASIPS/GIS study did not include such an analysis. While enforcement incidents have increased over the last year, there were no violations of the Deemed Approved Ordinance. It appears that the combination of new regulations may be working, or at least have created a framework to improve the situation and monitor it over time. If the Council desires to establish the urgency ordinance, staff will have to bring back findings for Council consideration. State law and the City Charter require that urgency ordinances necessary to adopt a moratorium be approved by four affirmative votes. Process to Develop New Policies Regarding the Number of Alcohol Outlets Downtown As this report has highlighted, San Luis Obispo is in the forefront of alcohol outlet regulations, particularly with the definition/use permit for a restaurant serving alcohol after 11:00 p.m. and the Deemed Approved Ordinance. There is a limited scope of remaining tools to further regulate alcohol-serving establishments. The table below shows the known available regulatory tools and notes if the City currently has it in place. Regulatory Tools for Alcohol Outlets Yes No Use Permit Required for Bars X Use Permit Required for Nightclubs X Land Use Definition and Use Permit Required for Late Hour Serving Restaurants X Use Permit Required for All Restaurants X Deemed Approved Ordinance X PCN X Formalized PCN Process X Comprehensive Land Use Strategies X Table 4: Regulatory Tools in Place The first of the three tools listed above that the City does not currently have in place, is requiring a use permit for all restaurants serving alcohol in the downtown. To require a use permit of all restaurants would increase permitting time and costs for new businesses and would run counter to the City’s goal of maintaining the downtown as the social and entertainment center for visitors and residents alike. The extensive statistics presented by Fried Wittman early in the Alcohol Outlet Amendments process showed that it is the later hours of the evening and into the morning that see the increase in alcohol-related incidents involving the Police Department. As a result of that process, the City created the late hour serving restaurant definition and use permit requirement to address the morphing of restaurants into bars late at night. The second tool, formalizing the PCN process, would first involve meeting with ABC staff to review criteria, process, and enforceability of new policies. Staff would additionally need to work with the Downtown Association and its Food, Beverage, and Services Committee. Staff would review any additional policies, PCN criteria, and process with these groups early in the process to gain input and keep them informed. After coordination with ABC and public outreach, the Planning SS1 - 12 Study Session – Alcohol Outlets Page 13 Commission would review the proposed new policies and process and make a recommendation to the City Council. Lastly, the Land Use and Circulation Element (LUCE) Update contains a scope of work item to analyze the long range management of alcohol outlets in the downtown. The Alternatives Report of the Update will include policy and implementation program recommendations to address the type, density, and capacity of alcohol establishments. Time Frame and Impacts to Workload Developing additional policies for alcohol outlets would be a significant undertaking and demand substantial staff time and resources. Staff estimates that approximately .5 FTE would need to be allocated to the effort. Existing projects would need to be suspended or new resources would be required to attend to implementing a moratorium and developing additional regulations beyond what is scoped in the LUCE update. The process of adopting the 2012 alcohol amendments required more than a dozen public outreach sessions, not including the workshops associated the Night Life Public Safety Assessment. While developing new policies/standards would not be as demanding an effort as the comprehensive 2012 Amendments, it will engender discussions with the Downtown Association and its committees, Save Our Downtown, RQN, and other interested parties. Given that these groups typically meet once a month, and that multiple visits are anticipated with some, it is anticipated that this effort would take 9-12 months. If a moratorium is adopted, such a moratorium would cover the anticipated time period to develop new policies. Taking on this endeavor will delay the processing of special projects, including the continued update of the Zoning Regulations (bedrooms/guesthouses), as well as updates of the Subdivision Regulations and Sign Regulations. Also, permit activity levels have steadily been increasing this year, dramatically so in May-July. So it is anticipated that there may be some longer processing times for other permit applications based on the need to reallocate staff resources to this project if so directed by the City Council. Staff appreciates the opportunity to receive direction from the City Council about these workload tradeoffs. CONCURRENCES The Police Department and City Attorney have reviewed the report and agree with the proposed approach. FISCAL IMPACT This is a study session only. No fiscal impact. ALTERNATIVES TO DECLARING A MORATORIUM 1. Include a comprehensive analysis of the number of alcohol outlets in the downtown in the Land Use and Circulation Update. This analysis could include recommendations from the consultant on other regulatory tools, including formalizing the PCN process. The Alternatives Report of the LUCE includes policy and implementation program recommendations to address the SS1 - 13 Study Session – Alcohol Outlets Page 14 type, density, and capacity of alcohol establishments. Draft policies regarding special study areas and topics, such as alcohol establishments, are scheduled to be reviewed by the TF-LUCE by November, 2013. Direct staff to return with proposed implementation once the draft policies and programs have been through the Environmental Review Process and Council has adopted updated Land Use and Circulation Elements. 2. Continue the process of annual review of the Zoning Ordinance Amendments adopted in July, 2012 and review at one year in August, 2014 to determine the effectiveness of the existing regulations over time. The annual review will include alcohol use permits, late hour alcohol at restaurants, Deemed Approved Ordinance, law enforcement activity, and other information associated with the package of amendments adopted last summer. ATTACHMENTS 1. Downtown Census Tract Map and ABC Licenses by Type 2. Ordinance #1578 3. PCN White Paper 4. Fried Wittman Brief- Restaurants that Morph into Bars 5. ABC License Types \\chstore4\Team\Council Agenda Reports\2013\2013-08-20\Presentation & Receipt of direction reg Alcohol Moratorium Ord (Johnson-Davidson)\E-CAR-Study Session_Alcohol Outlet Moratorium.docx SS1 - 14 Downtown Census Tracts Map and ABC Licenses by Type Licenses on the map display the license type that is currently issued for each location. In the event there is more than one license type issued, the code MU is displayed. Attachment 1 SS1 - 15 ORDINANCE NO . 1578 (2012 Series ) AN ORDINANCE OF THE CITY OF SAN LUIS OBISP O APPROVING AMENDMENTS TO TITLE 17 (ZONING REGULATIONS) O F THE MUNICIPAL COD E (Alcohol Outlet Public Safety Strategies R/TA 101-11) WHEREAS,the Planning Commission of the City of San Luis Obispo conducted a public hearing in the Council Chamber of City Hall, 990 Palm Street, San Luis Obispo , California, on April 25, 2012, for the purpose of considering amendments to Title 17 (Zonin g Regulations) of the Municipal Code, and recommended approval of amendments to th e Municipal Code ; and WHEREAS,the City Council of the City of San Luis Obispo conducted a public hearin g in the Council Chamber of City Hall, 990 Palm Street, San Luis Obispo, California, on May 15 , 2012, for the purpose of considering amendments to the Municipal Code (R/TA 101-11); an d WHEREAS,the City Council of the City of San Luis Obispo conducted a public hearin g in the Council Chamber of City Hall, 990 Palm Street, San Luis Obispo, California on June 5 , 2012 and directed staff to modify the Ordinance to define the role of the Downtown Associatio n in the Deemed Approved Ordinance process ; and WHEREAS,the City Council of the City of San Luis Obispo conducted a public hearin g in the Council Chamber of City Hall, 990 Palm Street, San Luis Obispo, California, on June 19 , 2012, for the purpose of considering the revised amendments to the Municipal Code (RITA 101 - 11); and WHEREAS,the City Council finds that the proposed text amendments are consistent with the General Plan, the purposes of the Zoning Regulations, and other applicable Cit y ordinances ; and WHEREAS,the City Council has duly considered all evidence, including the testimon y of the applicant, interested parties, and the evaluation and recommendations by staff, presented at said hearing ; and WHEREAS,notices of said public hearings were made at the time and in the manne r required by law . NOW, THEREFORE, BE IT ORDAINED by the Council of the City of San Lui s Obispo as follows : SECTION 1 .Environmental Determination .The project is exempt from environmenta l review per CEQA Guidelines under the General Rule (Section 15061(b)(3)) since there is n o possibility that the activities in questions could have a significant effect on the environment . SECTION2 .Findings,.Based upon all the evidence, the Council makes the followin g findings : 0 1578 Attachment 2 SS1 - 16 Ordinance No. 1578 (2012 Series ) Page 2 1.The proposed amendments will not significantly alter the character of the City or caus e significant health, safety or welfare concerns, since the amendments are consistent with the General Plan and directly implement City goals and policies . 2.Periodic amendments, updates, and corrections of the Municipal Code are consistent wit h General Plan Policy to maintain regulations which are effective in implementing policie s consistent with the General Plan . SECTION 3 . Chapter 17 .11 : Deemed Approved Alcoholic Beverage Sale Regulation s are hereby added to the City of San Luis Obispo Municipal Code to read as follows : Chapter 17 .11 : Deemed Approved Alcoholic Beverage Sale Regulation s Sections : 17.11 .010 Title, Purpose, and Applicabilit y 17.11 .020 Definition s 17.11 .030 Deemed Approved Performance Standard s 17.11.040 Deemed Approved Status Procedur e 17 .11 .050 Enforcement Procedur e 17 .11 .010 Title, Purpose, and Applicability . A.Title of Deemed Approved Alcoholic Beverage Sale regulations .The provisions o f this chapter shall be known as the Deemed Approved Alcoholic Beverage Sal e regulations . B.Purpose of Deemed Approved Alcoholic Beverage Sale regulations .The genera l purposes of the Deemed Approved Alcoholic Beverage Sale regulations are to protec t and promote the public health, safety, comfort, convenience, prosperity, and genera l welfare by requiring that Alcoholic Beverage Sales Commercial Activities that wer e established without use permit approval prior to the effective date of the Deeme d Approved Alcoholic Beverage Sale regulations comply with the Deemed Approve d performance standards of section 17 .11 .030 of this chapter and to achieve the following objectives : 1.To protect residential, commercial, industrial, and civic areas and minimize th e adverse impacts of nonconforming and incompatible uses ; 2.To provide opportunities for Alcoholic Beverage Sale Activities to operate in a mutually beneficial relationship to each other and to other commercial and civi c services ; Attachment 2 SS1 - 17 Ordinance No. 1578 (2012 Series ) Page 3 To provide mechanisms to address problems often associated with the publi c consumption of alcoholic beverages, such as litter, loitering, graffiti, unruly behavio r and escalated noise levels ; 4.To provide that alcohol outlets specified in this chapter are not the source of undu e public nuisances in the community ; 5.To provide for properly maintained Alcoholic Beverage Sale establishments so tha t negative impacts generated by these activities are not harmful to the surrounding environment in any way ; 6.To monitor that Deemed Approved Activities do not substantially change in mode o r character of operation . C.Applicability of Deemed Approved Alcoholic Beverage Sale regulations .The Deeme d Approved Alcoholic Beverage Sale regulations shall apply to the following alcoholic beverage sale commercial activities within the City which have been established withou t use permit approval prior to the effective date of this Chapter, and as defined in Chapte r 17 .100 of the Zoning Regulations: Bars/Tavern, Restaurant with Late Hour Alcoho l Service, Liquor Store, Nightclubs . 1 . Duplicated Regulation . Whenever any provision of the Deemed Approved Alcoholi c Beverage Sale regulations and any other provision of law, whether set forth in thi s code, or in any other law, ordinance, or resolution of any kind, imposes overlappin g or contradictory regulations, or contain restrictions covering any of the same subjec t matter, that provision which is more restrictive or imposes higher standards shall control, except as otherwise expressly provided in the Deemed Approved Alcoholi c Beverage Sale regulations . D.Administrative Hearing Officer .There is created an Alcoholic Beverage Sale s Administrative Hearing Officer (Administrative Hearing Officer) appointed by the Cit y Manager . The Administrative Hearing Officer shall conduct public hearings and mak e recommendations intended to encourage and achieve the compliance of particular sites a s appropriate . This section is not intended to restrict the powers and duties otherwis e pertaining to other city officers or bodies, in the field of monitoring and ensuring th e harmony of Alcoholic Beverage Sale Commercial Activities in the city. These partie s shall have the powers and duties assigned to them by the Zoning Regulations, other code s and ordinances, City Charter, or by valid administrative authority . 17.11 .020. Definitions . A. Title, purpose, and applicability .The provisions of 17 .11 .020 shall be known as th e definitions . The purpose of these provisions is to promote consistency and precision i n the interpretation of the Deemed Approved Alcoholic Beverage Sale regulations . The meaning and construction of words and phrases as hereinafter set forth shall apply Attachment 2 SS1 - 18 Ordinance No . 1578 (2012 Series) Page 4 throughout the Deemed Approved Alcoholic Beverage Sale regulations, except where th e context of such words or phrases clearly indicates a different meaning or construction . As used in this chapter : "Alcoholic beverage" means alcohol, spirits, liquor, wine, beer, and every liquid or soli d containing alcohol, spirits, wine, or beer, which contains one-half of one percent or mor e of alcohol by volume and which is fit for beverage purposes either alone or when diluted , mixed,or combined with other substances, and sales of which require a State Departmen t of Alcoholic Beverage Control license . "Condition of approval" means a requirement which must be carried out by the activity in order to retain its Deemed Approved Status . "Deemed Approved Activity" means operation of the stated uses applicable to thi s Chapter as defined . "Deemed Approved Status" means the status conferred upon a Deemed Approve d Activity . "Illegal activity" means an activity which has been finally determined to be i n noncompliance with the Deemed Approved performance standards in section 17 .11.03 0 of this chapter . Such an activity shall lose its Deemed Approved Status and shall n o longer be considered a Deemed Approved Activity . "Performance standards" means regulations prescribed in the Deemed Approve d Performance Standards in 17 .11 .030 of this chapter . "Premises" means the actual space within a building devoted to alcoholic beverage sales . "Restaurant" means an eating establishment as defined in Section 17 .100 R . 17.11 .030 . Deemed Approved Performance Standard s A.Title and purpose.The provisions of Chapter 17 .11 .030 shall be known as the Deeme d Approved Performance Standards . The purpose of these standards is to control dangerou s or objectionable environmental effects of Alcoholic Beverage Sales Commercia l Activities applicable to this Chapter . B.Applicability .These standards shall apply to the following Alcoholic Beverage Sale s Commercial uses listed in the above section 17 .11 .020 and Chapter 17.100 of this code : Bar/Tavern, Restaurant with Late Hour Alcohol Service, Liquor Store/Alcohol Sales , Nightclub) as defined in Section 17 .100 . The Deemed Approved Performance Standard s are applicable to these uses under the following circumstances, 1 & 2 below : Attachment 2 SS1 - 19 Ordinance No. 1578 (2012 Series ) Page 5 Alcoholic Beverage Commercial uses which have been established without us e permit approval prior to the effective date of Chapter 17 .11 . 2 . Alcoholic Beverage Commercial uses which are inconsistent with Table 9 (Uses allowed by Zone), Title 17 of the Municipal Code (Zoning Regulations) and hav e been established prior to the effective date of Chapter 17 .11 . C.Performance Standards and Deemed Approved Activities .An activity shall retain it s Deemed Approved Status only if it conforms with all of the following Deemed Approve d performance standards : 1.That it does not result in adverse effects to the health, peace or safety of person s residing or working in the surrounding area ; 2.That it does not result in jeopardizing or endangering the public health or safety o f persons residing or working in the surrounding area ; 3.That it does not result in repeated nuisance activities within the premises or in clos e proximity of the premises, including but not limited to disturbance of the peace , illegal drug activity, public drunkenness, drinking in public, harassment of passersby , gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries , acts of vandalism, excessive littering, loitering, graffiti, illegal parking, excessiv e loud noises, especially in the late night or early morning hours, traffic violations , curfew violations, lewd conduct, or police detentions and arrests ; 4.That it does not result in violations to any applicable provision of any other city, state , or federal regulation, ordinance or statute ; 5.That its upkeep and operating characteristics are compatible with and will not adversely affect the livability or appropriate development of abutting properties an d the surrounding neighborhood . 17 .11 .040 . Deemed Approved Status Procedur e A.Deemed Approved Status Procedure .The provisions of this article shall be known a s the Deemed Approved Status procedure . The purpose of these provisions is to: (A) provide notice of Deemed Approved Status upon Alcoholic Beverage Sales Commercia l Activities applicable to this Chapter ; (B) prescribe the procedure for the imposition of conditions of approval upon these activities ; and (C) prescribe the procedure fo r appealing conditions of approval or the revocation of a Deemed Approved Status . B.Automatic Deemed Approved Status .All Alcoholic Beverage Sales Commercia l Activities applicable to this Chapter per section 17 .11 .030 .B . shall automatically becom e Deemed Approved Activities as of the effective date of the Deemed Approved Alcoholi c Beverage Sale regulations . Each such Deemed Approved Activity shall retain its Deemed Attachment 2 SS1 - 20 Ordinance No. 1578 (2012 Series ) Page 6 Approved Status as long as it complies with the Deemed Approved performanc e standards at Section 17 .11 .030 C . C.Notification to owners of Deemed Approved Activities .The Administrative Hearin g Officer shall notify the owner of each Deemed Approved Activity, and also the propert y owner if not the same, of the activity's Deemed Approved Status. Such notice shall b e sent via certified return receipt mail ; shall include a copy of the performance standards o f Section 17 .11 .030 .C . of this chapter with the requirement that these be posted in a conspicuous and unobstructed place visible from the entrance of the establishment fo r public review ; notification that the activity is required to comply with all these sam e performance standards ; and that the activity is required to comply with all other aspect s of the Deemed Approved Alcoholic Beverage Sale regulations . Should the notice b e returned, then the notice shall be sent via regular U .S . Mail . D.Procedure for consideration of violations to performance standards .Upon receivin g a complaint from the public, Police Department, code enforcement officer, or any othe r interested party that a Deemed Approved Activity is in violation of the performanc e standards of Section 17 .11 .030 .C, and once it is determined by the city that violation s appear to be occurring, then a public hearing will be scheduled before the Administrativ e Hearing Officer, as follows a.The Administrative Hearing Officer will provide the complainant, the busines s owner of the Deemed Approved Activity, the property owner, if not the same a s the business owner, and other interested parties with at least 30 calendar day s advance notice of the public hearing. Interested parties are defined as those tha t have made a request with the City Clerk to be notified of these proceedings, an d shall include the Downtown Association or its successor agency in all instances in which the complaint involves an establishment within the boundaries of th e Downtown Association or its successor agency . b.In all instances in which the complaint involves an establishment within th e boundaries of the Downtown Association, the Downtown Association may , within the 30 day period preceding the hearing, schedule a meeting wit h authorized representatives of the establishment to review the facts underlying th e complaint and the establishment's response to the complaint and to develop input to be conveyed to the Administrative Hearing Officer regarding the Downtow n Association's recommendation regarding the complaint and any measures th e Downtown Association suggests to address the complaint . i.Nothing herein shall require the business establishment within th e boundaries of the Downtown Association to participate in the meetin g with the Downtown Association, but the Downtown Association shal l advise the Administrative Hearing Officer if an establishment declines t o participate and the Administrative Hearing Officer may consider th e establishment's failure to participate in determining appropriate remedie s if a violation is found to have occurred after considering all testimon y presented during the public hearing . ii.The Administrative Hearing Officer shall not in any manner be bound b y any recommendation of the Downtown Association and shall give the Attachment 2 SS1 - 21 Ordinance No . 1578 (2012 Series) Page 7 recommendation from the Downtown Association such weight as th e Administrative Hearing Officer, in his or her sole discretion, deem s appropriate after consideration of all record testimony and evidenc e presented in the public hearing . The Administrative Hearing Officer shal l proceed with the public hearing after 30 calendar days of issuing a notic e of public hearing, whether or not the Downtown Association or it s successor agency has met with the business owner of the Deeme d Approved Activity or delivered a recommendation for consideration b y the Administrative Hearing Officer . Failure of the Downtown Associatio n to receive notice pursuant to this title, or pursuant to procedure s established by the City, shall not constitute grounds to cancel the publi c hearing or invalidate the actions for which the notice was given . iii . In no event shall a meeting between the Downtown Association and th e business owner of the Deemed Approved Activity cause a delay to, o r substitute for a public hearing before the City's Administrative Hearin g Officer, unless it is determined in the sole discretion of the Administrative Hearing Officer that a delay is in the public's interest . c . The purpose of the Administrative public hearing is to receive evidence an d testimony on whether the operating methods of the Deemed Approved Activit y are causing undue negative impacts in the surrounding area. At the public hearing, the Administrative Hearing Officer shall determine whether the Deeme d Approved Activity conforms to the Deemed Approved Performance Standards se t forth in Section 17 .11 .030 .C . and to any other applicable criteria, and may continue the Deemed Approved Status for the activity in question, or require such changes, or impose such reasonable Conditions of Approval as are necessary, i n the judgment of the Administrative Hearing Officer to ensure conformity to sai d criteria . Any such changes or conditions shall be based on the evidence before th e Officer . The decision of the Administrative Hearing Officer shall be based upo n information compiled by staff and evidence and testimony from the complainan t the business owner, the property owner if not the same, and all other intereste d parties . New Conditions of Approval shall be made a part of the Deeme d Approved Status and the Deemed Approved Activity shall be required to compl y with these conditions . The determination of the Administrative Hearing Officer shall become final ten (10) calendar days after the date of decision unles s appealed to the City Planning Commission in accordance with Chapter 17 .66 . E. Procedure for consideration of violations of Standards or Conditions of Approval . In the event of a violation of any Condition of Approval or of further violations of th e provisions set forth in Sections 17 .11 .010 through 17 .11 .030 of these regulations, the Administrative Hearing Officer shall hold a noticed public hearing. The purpose of thi s public hearing is to receive testimony and determine whether violations of Conditions o f Approval or of Sections 17 .11 .010 through 17 .11 .030 of these regulations exist . The Administrative Hearing Officer may add to or amend the existing Conditions of Approva l based upon the evidence presented ; or alternatively may revoke the Deemed Approve d Activity's Deemed Approved Status . The determination of the Administrative Hearing Attachment 2 SS1 - 22 Ordinance No . 1578 (2012 Series) Page 8 Officer shall become final ten (10) calendar days after the date of decision unles s appealed to the City Planning Commission in accordance with the below sectio n 17 .11 .040 .F . The decision of the Planning Commission shall be final unless appealed t o the City Council in accordance with Section 17 .11 .040 .G . F.Appeal to Planning Commission .Appeals of the decisions of the Administrative Hearin g Officer may be filed in accordance with Chapter 17 .66 : Appeals . In considering the appeal, the Planning Commission shall determine whether the established use conform s to the applicable Deemed Approved performance standards and may continue or revoke a Deemed Approved Status ; or require such changes in the existing use or impose suc h reasonable conditions of approval as are, in its judgment, necessary to ensure conformit y to said performance standards . The decision of the Planning Commission on the appeal t o the conditions of approval imposed by the Administrative Hearing Officer shall be final . G.Appeal to City Council .Appeals of the decisions of the Planning Commission may b e filed in accordance with Chapter 17 .66 : Appeals . In considering the appeal, the Counci l shall determine whether the Deemed Approved Activity conforms to the applicabl e Deemed Approved performance standards, and may approve or disapprove the revocatio n or require such changes therein or impose such reasonable conditions of approval as ar e in its judgment necessary to ensure conformity to said standards . 17 .11.050 . Enforcement Procedure A.Applicability .The provisions of this section shall apply to the enforcement of th e Deemed Approved Alcoholic Beverage Sale regulations . B.Official action .All officials, departments, and employees of the city vested with the authority to issue permits, certificates, or licenses shall adhere to, and requir e conformance with, the Deemed Approved Alcoholic Beverage Sale regulations . C.Infractions .Any person who violates, causes, or permits another person to violate an y provision of these regulations is guilty of an infraction unless otherwise provided . D.Separate Offenses for Each Day .Any violator shall be guilty of a separate offense fo r each and every day during any portion of which any violation of any provision of thes e regulations is committed, continued, permitted, or caused by such violator and shall b e punishable accordingly . E.Any Violation a Public Nuisance .In addition to the penalties provided in this section , any use or condition caused or permitted to exist in violation of any of the provisions o f this chapter shall be and is declared to be a public nuisance and may be summarily abate d as such by the city . F.Injunction as Additional Remedy .Any violation of any provision of these regulation s shall be and is declared to be contrary to the public interest and shall, at the discretion o f the city, create a cause of action for injunctive relief . Attachment 2 SS1 - 23 Ordinance No . 1578 (2012 Series) Page 9 G.Penalties .Any person convicted of an infraction under the provisions of this section shal l be punishable by a fine to the maximum permitted under state law . Any violation beyon d the second conviction within a one-year period may be charged by the City Attorney as a misdemeanor, and the penalty for conviction shall be punishable by a fine or imprisonment to the maximum permitted under state law . H.Liability for Expenses .In addition to the punishment provided by law, a violator i s liable for such costs, expenses, and disbursements paid or incurred by the city or any o f its contractors in correction, abatement, and prosecution of the violation . I.Enforcement.The city shall designate the appropriate personnel to enforce th e provisions of these regulations . SECTION 4 .Chapter 17 .16 .060 . Parking Space Requirements . Table 6 (Parkin g Requirements by Use) of the City of San Luis Obispo's Municipal Code is replaced an d amended to read as follows : 9 Attachment 2 SS1 - 24 Ordinance No . 1578 (2012 Series) Page 10 CTt\S,111 tills NW() }cta :tr .~U\aal2 Z01 .11llq I?t'n;tll ;AtfOrI S TABLE 6 .PARKING REQUIREMENTS BY US E Type of Use Number of Off-Street Parking Spaces Require d p Clr_TURE p INDUSTRY, MANUFACTURING 8 PROCESP r G,Wh .SAL I d2~.ekrenient squan d LODGIN G .~ d ;in .ekf~;a inn .,lin t 10 Attachment 2 SS1 - 25 Ordinance No . 1578 (2012 Series) Page 11 C11,A' 0 SA11 kHS ()UIS}.)O Li'I)If L f : r,LII \Gli~I1S TABLE 6 - PARKING REQUIREMENTS BY US E Type of use Number of `Jff-Street Parking Spaces Required RECREATION .EDUCATION, & PUBLIC ASSEMBLY USE ., 4 seats i L cdic?sti r lay area plus gcNemment off me an, 11 Attachment 2 SS1 - 26 Ordinance No . 1578 (2012 Series) Page 12 cite i S .vn [H1'>I>iSp O ZC1111t1~i t :e'~itIU\t.k 11 S TABLE 6 - PARKING REQUIREMENTS BY US E Type of Use Number of Off Street Parking Sp,_c Required page 53 RESIDENTIAL USES U2 for first bedrooopmenfs of more enal e spat overed . 12 Attachment 2 SS1 - 27 Ordinance No . 1578 (2012 Series) Page 13 TABLE 6 • PARKING REQUIREMENTS BY US E Type of Use Number of Off-Street Parking Spaces Require d } SALES ernce wee u ,rea okts cal f rru of grow floor { . war 2,000 s q Area p flog waiting preparatior owns, arrd ces'i fuel p r c 13 Attachment 2 SS1 - 28 Ordinance No. 1578 (2012 Series ) Page 14 crt,v Mils ci Isp o P,6P,tIAI :V 201d .%i`-f1lllii iL\H TABLE 6 . PARKING REQUIREMENTS BY US E Type of Use Number of Off-Street Parkin Spaces Require d SECTION 5 .Chapter 17 .22 : Use Regulation . Table 9 (Uses Allowed By Zone) of th e City of San Luis Obispo's Municipal Code is replaced and amended to read as follows : SERVICES - BUSINESS, FINANCIAL &PROFESSION .= ~arrcraI . one pe r ) square ativo itasre het ros area. A ofh+ 14 Attachment 2 SS1 - 29 Ordinance No . 1578 (2012 Series) Page 1 5 INIL \I :\3012. cit s,\11 tui~ or,tsp o TABLES USES ALLOWED BY ZON E p unit Requirement by Z Land Use p 1 AC .T...JLTUR E INDUSTRY,MANUFACTURING &PROCESSING, WHOt al i1iUIIIIII FMI•111=11PiEPPPUImirs 1111111IIIIMIIIIIMIIIIIMINOII D NI=MMMMMEMMMMMMM MIM EmmmommmammumD D namD111MMINOMINNIIIIIIIIIIIIIIIIIMIM1111111IMMMIM111111111111 1ammmlimmmammaunmunD MIMI=MIDI PG Pc 11111MINT1111.11111INIMMIlIMININIM11111111111111111 1 Pc PC PGPG iC 17 .08.11 0 MM.MAIMIAMMMOIMM MMMMMIMMMMMIMIN 1 5 Attachment 2 SS1 - 30 Ordinance No . 1578 (2012 Series ) Page 16 clt~~ (:s,vn lifts 061s }1 0 1'11 1111),i`.,,Ut,ALions TABLE 9 - USES ALLOWED BY ZONE - Continued Land Us e =T ON, EDUCATION. Si PUBLIC ASSSr1BLY USE Smmmmmommmm ..-..DD ....--lmm--..--_.__.-----D mini D D - --.A IS FC ®n ------P _,-m Nimmm mom=mmmmmmmm D pm r--.--i --D D D minmmPG D D D D®D D ® Nimmmi~riii -M ii..PC PC D D ..-mmmnnn -mm,Inn=No D D D D -~DEN -__A A n D mm ~ ~~IIIMIIMI AXES..O D SME■■D .-.-MMMnommormami 1BsN n N ,li MMMMM M1EMInEall EI----MEEM .-DD =Mal D-.®-...---®.- D D 1I - .mimm D D omm -nn A nnnn nMENE M-M.M BD PD IMIM®®~®MMMIMM M 1~a®W-= ®EN®®-17.08~---®®®-17 .08-~.am PC 1 17.081111MIMIllriredrillIMME u --- DD 16 Attachment 2 SS1 - 31 Ordinance No . 1578 (2012 Series) Page 17 Clt~'O .SA 1 1)IS OrdS }.)0 701)1116 Grtitl1.VY;iO III S TABLE 9 - USES ALLOWED BY ZONE • Continue d Permit Requirement Y Zoning Dist r Land Us e RETAIL SALES pc 1■1=11111 ■ ■ D 1M.~~N ~~~D ...~17 .08 095 mm.amms D D D D ammmml immummm i°fi :'u::::u:E®'::5 _■MMMEMMr D®INo __ D --Illrmrml mu um= Pan eq Cornmissta Taal required Note :F El 1111111111MIIIIIM i_MiMi E.ElalWEI=El 11111111 NI=IIIII Mil El ElIIIMIIIMIIMIIIIIII=El D 17 Attachment 2 SS1 - 32 Ordinance No . 1578 (2012 Series) Page 18 city ,tit to Is ot3i p : /01'.11];NC,i ta .ttl0l TABLE 9 - USES ALLCVVED BY ZONE - Continue d strictPermit Require ne ~peeiGc iis .. -e..(ul~tion sRR:ILand Use FIUCIAL ;;PROFESSIONAL. .®mmmommmem m--IMIMIMMMMM I.-PC PC [Y warn.m - ~-~im~®~- m.mm D Imo:-mm Amummmmmmm m SERVICES mmmmmmp mmmmmm m_ om.i 'V .PCNm ..■ai l val D i ■o.■MMIIMNMIIMIMIIIIhis■■IIIIMIIMMMIIII C-1111■■.. L reed Note :FF~' SERVICES - BUS'; A'. Q VII IMINIMDP) A tIIMIIMIIMIIII•1I D r D 0 18 Attachment 2 SS1 - 33 Ordinance No. 1578 (2012 Series) Page 19 cat~>lip S .U1 St1JS iDlISp O ZOtliihi i r.iSl=`1dt ..'r TABLE 9 • USES ALLOWED BY ZONE • Continue d ~~~,,;_~strl land Uoo Permit t N NMilliMMiMMEm .e.D0 rim.s Imammmol.mmp1::. ~~~ P P s D a 0 Note: TR NSPORTATION & COMMUICATIONS 0 D Aeve porary 17:OS :t71 0 D SECTION 6 .Chapter 17 .100 . C . Convenience Store . of the City of San Luis Obispo's Municipal Code is replaced and amended to read as follows : Convenience Store .A retail establishment with not more than 4,500 square feet of gros s floor area, offering for sale prepackaged food products, household items, newspapers an d 19 Attachment 2 SS1 - 34 Ordinance No . 1578 (2012 Series) Page 2 0 magazines, and sandwiches and other freshly prepared foods, such as salads, for off-sit e consumption . Sale of alcoholic beverages is limited to beer and wine only (ABC License Typ e 20). SECTION 7 . Chapter 17 .100 . G . Grocery Store and Specialty Foods . Is hereby added to the City of San Luis Obispo's Municipal Code to read as follows : Grocery Store and Specialty Foods .A retail business where the majority of the floor are a open to the public is occupied by food products packaged for preparation and off-sit e consumption . SECTION 8 .Chapter 17 .100 . L . Liquor Store/Alcohol Sales . Is hereby added to th e City of San Luis Obispo's Municipal to read as follows : Liquor Store/Alcohol Sales .Any business selling alcoholic beverages as a primary us e including beer, wine, distilled spirits, or hard liquor, or any other alcoholic beverages . Liquor/Alcohol Sales does not include grocery stores, convenience stores, warehouse stores , or other alcohol sales authorized as part of an off-site wine tasting room or food and beverag e product manufacturing . SECTION 9.Chapter 17 .100 .R . Restaurant . of the City of San Luis Obispo's Municipal Code is replaced and amended to read as follows : Restaurant .A retail business selling ready-to-eat food for on- or off-premise consumption , which does not include alcohol service after 11 :00 p .m . These include eating establishment s where customers are served from a walk-up ordering counter for either on- or off-premis e consumption, establishments where most customers are served food at tables for on-premise consumption, but may also provide food for take-out, and establishments that provide foo d for off premise consumption only. Includes coffee houses, donut shops, delicatessens, etc . Does not include restaurants with drive-through ordering or service . "Restaurant" means a place which is regularly and in a bona fide manner used and kept open for the serving o f meals to guests for compensation and which has suitable kitchen facilities connecte d therewith, containing conveniences for cooking an assortment of foods which may b e required for such meals . SECTION 10 .Chapter 17 .100 .R. Restaurant with Late-Hour Alcohol Service . Is hereb y added to the City of San Luis Obispo's Municipal to read as follows : Restaurant with Late-Hour Alcohol Service .A restaurant which provides alcohol servic e after 11:00 p .m . SECTION 11 .Severability.If any subdivision, paragraph, sentence, clause, or phras e of this ordinance is, for any reason, held to be invalid or unenforceable by a court of competen t jurisdiction, such invalidity or unenforceability shall not affect the validity or enforcement of th e remaining portions of this ordinance, or any other provisions of the City's rules and regulations . It is the City's express intent that each remaining portion would have been adopted irrespectiv e of the fact that any one or more subdivisions, paragraphs, sentences, clauses, or phrases b e declared invalid or unenforceable . 20 Attachment 2 SS1 - 35 Ordinance No. 1578 (2012 Series ) Page 21 SECTION 12.A summary of this ordinance, together with the names of Counci l members voting for and against, shall be published at least five (5) days prior to its final passage, in The Tribune, a newspaper published and circulated in this City . This ordinance shall go into effect at the expiration of thirty (30) days after its final passage . INTRODUCED on the 15 th day of May, 2012,AND FINALLY ADOPTED by the Council of the City of San Luis Obispo on the 10 th day of June 2012 on the following roll cal l vote : AYES : Council Members Ashbaugh, Carter and Smith, and Mayor Marx NOES : Non e ABSENT : Non e RECUSED Vice Mayor Carpente r ATTEST : Sheryl S " oede r Interim City Clerk 21 Attachment 2 SS1 - 36 Attachment 3 PCN How PCNs can be a tool for limiting the number of alcohol licenses in the over concentrated census tracts City of San Luis Obispo White Paper Derek Johnson, Community Development Director Doug Davidson, Deputy Director 11/20/2012 SS1 - 37 PCN White Paper Attachment 3 November 20, 2012 1 SUMMARY The State of California Department of Alcoholic Beverage Control (ABC) is charged with the responsibility under State statute to review and issue licenses for the sale and/or manufacture of alcoholic beverages. State law provides that ABC shall deny an application for a license if the issuance of that license would either create a law enforcement problem, or result in or add to an undue concentration of licenses, unless a determination is made that public convenience or necessity would be served by issuance of the license. As set forth in the California Business and Professions Code (23958.4), a PCN (Public Convenience or Necessity) is required for the following five types of alcohol licenses: • Type 20 – Off-Sale Beer & Wine • Type 21 – Off-Sale Beer, Wine, and Spirits • Type 40 – On-Sale Beer (Pub) • Type 42 – On-Sale Beer & Wine • Type 48 – On-Sale Beer, Wine, and Spirits (Bar) BACKGROUND Alcohol outlets may have health and safety risks for neighborhoods and communities. As the ASIPS/GIS study (CLEW Associates, Fried Wittman, presented to the City Council October, 2009) showed, the number, density, location, and operational practices of alcohol outlets affects levels of community violence, drinking-driving incidents, injuries, underage drinking, and public nuisance activities. Having large numbers of bars concentrated in a small geographic area is likely to cause disruption, particularly in a college town where alcohol outlets may promote heavy drinking. The ASIPS/GIS study provided data that the majority of safety problems associated with alcohol outlets occur late at night on weekends in the vicinity of the bars and nightclubs. The link between alcohol outlets and community safety problems has prompted local governments to regulate their number, location, and practices. The ABC regulates the manufacture, sale, purchase, and transportation of alcohol. Cities may, however, provide further control on the sale of alcohol to address concerns through land use, zoning, and public safety ordinances. The City of San Luis Obispo has already taken the first step by requiring use permits for bars and nightclubs and adopted a Deemed Approved ordinance which applies performance standards to existing establishments. Despite the authority of local municipalities to control alcohol outlet density, many cities, including San Luis Obispo, have reached or surpassed saturation levels. In their desires to create vibrant downtown entertainment districts and boost tourism many cities now experience the problems that come with a high density of alcohol outlets. The City of San Luis Obispo recently enacted comprehensive ordinance amendments to enhance alcohol outlet regulations. The use permit process was strengthened by creating a set of standard conditions and zoning definitions to address the “morphing” of restaurants into bars. A Deemed Approved Ordinance was also SS1 - 38 PCN White Paper Attachment 3 November 20, 2012 2 adopted to establish performance standards for existing outlets that are in operation without a use permit. During the public hearing and outreach process for the new alcohol outlet regulations and recent use permit reviews, some members of the community questioned “how many is too many” alcohol outlets in the downtown. The recent alcohol outlet amendments did not specifically address this question. The Land Use and Circulation Element (LUCE) Update contains a work scope item to analyze the long range aspects of alcohol outlets in the downtown. The Alternatives Report of the Update will include policy and implementation program recommendations to address the type, density, and capacity of alcohol establishments. The PCN (Public Convenience or Necessity) process provides another tool for the City to use in regulating the number of new liquor licenses. The PCN is an existing, more immediate tool that the City can take better advantage of by creating a more formal process for reviewing and approving requests for new liquor licenses downtown. Law Overview and Legal Discretion In 1994, the State Legislature adopted the Caldera bill (AB 2897) which authorizes local municipalities to control the number of bars and retail outlets in their communities. ABC has sole authority to issue alcohol licenses over restaurants and hotels/motels subject to any use restrictions placed by a local government 1. If an area is subject to over concentration, a local government has discretionary authority of whether or not to approve a PCN for bars, nightclubs, and liquor stores. This authority is in addition to any authority that is related to a use permit directly related to the off and/or on sale of alcohol. In these cases, if the local authority does not find a need of public convenience or necessity, State law requires ABC to honor that decision and deny the license application. In continuing efforts to support downtown economic development and tourism growth, many cities have not used the PCN process to manage and limit the number of alcohol licenses. Many governing authorities on the Central Coast tend to approve new licenses unless it can be demonstrated that the license in question will result in escalated crime or some other negative impact to the surrounding area. This is not the intended standard of review and this approach is considered to be generally contrary to the intent of public convenience or necessity. When considering alcohol licenses in high crime or over concentrated areas, the City does not have to prove the potential negative consequences. The burden of proof is on the applicant to demonstrate the need and community benefits of another alcohol outlet. Some cities in 1Business and Professionals Code 23958.4(1) With respect to a nonretail license, a retail on-sale bona fide eating place license, a retail license issued for a hotel, motel, or other lodging establishment, as defined in subdivision (b) of Section 25503.16, a retail license issued in conjunction with a beer manufacturer's license, or a winegrower's license, if the applicant shows that public convenience or necessity would be served by the issuance. Any restaurant or hotel serving alcohol after 11:00 pm. requires the approval of a use permit per the recently adopted amendments to the City’s Municipal Code. SS1 - 39 PCN White Paper Attachment 3 November 20, 2012 3 California shifted the “burden of proof” to the applicant” specifically into their application submittal requirements. What is a PCN? The PCN rules apply to license requests in areas that are over concentrated and/or have high crime rates (Business &Professions Code 23958.4). Over concentrated is defined as more than one alcohol license for each 2,000 people per census tract and high crime rate as an area that exceeds the City’s average crime rate by 20 percent. Under such conditions, ABC must deny the license application unless there is a finding of need, termed “Public Convenience or Necessity”. Again, according to the Department of Alcoholic Beverage Control, one alcohol license is available for each 2,000 people per census tract. There is no distinction between the types of licenses that are issued, just an overall count of the total number of licenses issued. Once this quantity is reached within a census tract it is considered over concentrated and more licenses can only be obtained through proof of a PCN. According to the San Luis Obispo ABC office, once the baseline quanity has been reached, it is often more difficult for type 42 (on-sale beer and wine) and 48 (on-sale beer, wine, and spirits) licenses to receive a license, unless a jurisdiction approves their reasoning for PCN. However, those applicants applying for a type 40, 41, or 47 2 license can write a letter of Public Convenience of Necessity directly to ABC in order to request an alcohol license and it is more difficult for the jurisdiction to influence ABC to deny the request. Current PCN Process The City does not currently have an application process, required findings, or a fee for PCNs. The work required to properly analyze, consider, and issue a PCN should be done with tremendous care and consideration for the general welfare of the City. Currently a PCN is requested in writing from the business owner for approval to the Community Development Director. A Director’s approval is in the form of a letter and not subject to any level of public hearing or public process. Community Development staff works closely with the Police Department in review of alcohol licenses and/or outlets. The Director’s decision is appealable to the City Council. 2 40 On-Sale Beer 41 On-Sale Beer and Wine for Bona Fide Public Eating Place 47 On-Sale General for Bona Fide Public Eating Place SS1 - 40 PCN White Paper Attachment 3 November 20, 2012 4 The majority of downtown is included in census tract 111.01. Figure 1 shows the boundaries of the census tracts that make up downtown, the location of each alcohol license and the type of license issued. The total population for census tract 111.01 is 3,592. Figure 1: Licenses on the map display the license type that is currently issued for each location. In the event there is more than one license type issued, the code MU is displayed. According to the ABC report dated 10/25/12, census tract 111.01 has a total of 63 Alcohol licenses. Using the Business and Professions Code calculation of 2,000 people per license, downtown would be considered over-concentrated once two (1.8) licenses had been issued. Figure 2 and Table 1 illustrate the total number of licenses and license types in downtown San Luis Obispo. Figure 2 (left): Quantity and Type of Alcohol Licenses; Table 1 (right): The total number of each License Type in Census Tract 111.01. 0 10 20 30 40 50 60 70 40 41 42 47 48 75 Total Qu a n t i t y Type of Alcohol License Quantity &Type of Alcohol License for Census Tract 111.01 # of Licenses License Type # of Licenses 40: on sale beer 2 41: on sale beer & wine-eating place 30 42: on sale beer & wine-public premise 5 47: on sale general- eating place 20 48: on sale general- public premise 4 75: on sale general- brewpub 2 Total 63 SS1 - 41 PCN White Paper Attachment 3 November 20, 2012 5 The local ABC representative indicates that the above criterion to establish over concentration is not an absolute limit on the number of alcohol licenses in a given tract. ABC recognizes that jurisdictions often exceed the one license per 2,000 people ratio, particularly in college towns with compact downtowns, such as San Luis Obispo. The formula for over concentration provides a monitoring tool for cities and ABC to use when reviewing PCNs. Requests for PCNs are rare in San Luis Obispo. PCN’s are not required for the transfer of a license within an over concentrated census tract, however, if the local agency protests an unconditional transfer, any lawful conditions that have a direct nexus to the application can be added to the transferred license by ABC at a public hearing. For example, this is the process City staff will use with the transfer of the SLOBREW license if the relocation of the business is approved. Although the Use Permit would establish stand-alone and enforceable conditions, the Use Permit conditions would also be placed on the liquor license for added assurance and better enforcement by ABC and City staff. The most recent request PCN in the City is a June, 2009 request for off-sale beer and wine associated with Mission Chevron at 328 Marsh St. The Director denied the PCN due to over concentration of alcohol outlets in the downtown tract. On appeal, the Council denied the appeal, but directed staff to issue a PCN for off-site sales provided the applicant purchase another existing off-site license within City limits and that the PCN contain conditions of no single beer, no keg, and no small wine bottle sales. The Council decision was influenced by the fact that this business was some distance from the concentration of alcohol-selling establishments in the downtown core. The site’s gateway location next to the freeway and major streets does provide for public convenience. The redevelopment of the site and the associated public improvements were also an important ingredient in the Council’s decision. Other Options for PCN Processing Staff has researched how other jurisdictions issue and process PCNs and created the following table illustrating some of the various approaches. Fees for PCNs range from approximately $1,000 to $3,000 and are typically tied together with the necessary entitlement, such as a use permit. SS1 - 42 PCN White Paper Attachment 3 November 20, 2012 6 City/County Director’s Approval (appealable to the City Council) Administrative Use Permit Planning Commission Approval City Council Approval Board of Supervisor Approval Santa Rosa X Redwood City X Costa Mesa X Murrietta X Davis X Anaheim X Pomona X Rancho Cordova X Elk Grove X Lake Elsinore X Ventura County X Sacramento County X San Francisco County X A more formal process includes formulating the required findings necessary to determine public convenience or necessity. The Business & Professions Code does not establish such criteria, but leaves it to local governments to better recognize traits of different communities. Findings for approval of a PCN could include recognizing a unique site location and the economic development benefits, such as job creation, cultural/entertainment value, area revitalization, or a desirable business model. Reasons to deny a PCN could include the alcohol outlet’s location in a high crime area, over concentrated tract, or proximate to sensitive land uses (schools, residential, churches). Formalizing policy on PCNs will set proper expectations for the applicant and help the decision makers by providing consistent findings and criteria. With strong policy language established by Council, an Administrative Use permit, appealable to the Planning Commission, could be the proper process for PCNs. Process to Change Current Practice Changing the City’s current practice regarding requests for a PCN would first involve meeting with ABC staff to review criteria, process, and enforceability. Staff met with ABC staff on November 7th to review these issues of formalizing the PCN process. Staff would continue to foster the working relationship with the Downtown Association and its Safe Night Life subcommittee forged during the adoption of the Deemed Approval Ordinance. Staff would review the PCN criteria and process with these groups early in the process to gain input and keep them informed. Some cities contain their PCN process within a separate Municipal Code Section on alcohol regulation. It is very common to process the PCN request concurrently with the associated use SS1 - 43 PCN White Paper Attachment 3 November 20, 2012 7 permit or zoning entitlement. Since the City has just modified the Zoning Regulations (Chapter 17) for new land use definitions, processes, and the Deemed Approved Ordinance, it seems reasonable to locate the PCN procedures in that Code section. After coordination with ABC and public outreach, the Planning Commission would review the proposed PCN policy and process and make a recommendation to the City Council. Recommendation Direct staff to bring back proposed policies, standards, and procedures to formalize and improve the PCN as an additional tool to regulate the number of alcohol outlets. SS1 - 44 1 COMMUNITY PREVENTION INITIATIVE (CPI) By Friedner D. Wittman, CLEW Associates October 2012 Center For Applied Research Solutions 877-568-4227 carsinfo@cars-rp.org www.ca-cpi.org Restaurants that “Morph” into Bars and Nightclubs in California Communities: What’s the Problem and What Can Be Done About It? POLICY BRIEF This publication was produced for the Community Prevention Initiative (CPI), funded by the California Department of Alcohol and Drug Programs and administered by CARS. SS1 - 45 2 The information or strategies highlighted in this publication do not necessarily constitute an endorsement by ADP, nor are the ideas and opinions expressed herein those of ADP or its staff. © 2012 by Community Prevention Initiative (CPI). Permission to reproduce is granted, provided credit is given. Additional copies of this publication are available upon request or at www.ca-cpi.org. This publication can be made available in Braille, large print, computer disk, or tape cassette as disability-related reasonable accommodation for an individual with a disability. SS1 - 46 3 SETTING THE SCENE: AN INSIDE LOOK AT MORPHING IN SAN LUIS OBISPO, CA. At about 10:00 pm, downtown San Luis Obispo (SLO) changes dramatically from its daytime uses—shopping, tourism, dining, city government, professional offices—to a nighttime bar scene of large drunken crowds surging between a dozen or so establishments in a six-block area. A lively music scene and drink specials encourage the crowd—mostly between the ages of 18 and 25, many of them Cal Poly students—to stay longer and drink more. Some have “pre-loaded” or had drinks before coming downtown. ID checking is difficult with noisy and impatient crowds, and many patrons continue to be served despite their apparent drunkenness. At 2:00 am closing time, patrons from these establishments transition to the street, many of them inebriated and some falling-down drunk. (Figs. 1-6)i The scene described here is a pressing issue in cities across California. According to research by CLEW Associates, the problems stem primarily from restaurants that shift or “morph” their main operations from food consumption during the day to alcohol sales at night. According to the Chief of Police for SLO, for many years this scene went on night after night, intensifying on weekends. After years of allocating police resources aimed at problematic intoxicated patrons, city leadership embarked on a planning process directed toward working with restaurant owners and managers to reduce these problems through land-use planning and zoning laws in combination with law enforcement. SLO now offers a model for other cities seeking to mitigate these problems using local tools readily available to all California municipalities.1 While the need for public attention to problems with morphing may not be immediately apparent, tracking of police logs and close monitoring of these events illuminate the negative impacts on public safety and drains on community/municipal resources. In SLO, a study of annual police calls-for-service revealed that of nearly 1,000 police incidents occurring at the city’s 85 on-sale outlets, three-fifths of the incidents (nearly 600) occurred at just 10 Downtown establishments. According to the Chief of Police, four police officers were assigned to manage these late-night crowds. The officers contended with under-age drinkers, fights, unwanted sexual advances among patrons, violence, property damage, disturbances to neighbors, and DUIs. The cost for extra police support was borne by the city, not by establishments where the problems originated. When morphing is concentrated and unregulated, the consequences run deep. Individual drinkers and their families, bystanders and neighbors all feel the impact. Treatment for medical emergencies and harm falls on health providers and on public health services. Costs of property damage fall on neighboring property owners and insurance companies. The legal and economic aftermath falls on the judicial system and on employers. This Policy Brief looks at the issue of restaurant morphing in depth. What is morphing and how does it lead to problems? Where does morphing occur? How did morphing begin and how does it spread? Who is responsible for preventing and reducing problems related to morphing? What actions are being taken by the California Department of Alcoholic Beverage Control (ABC) and local communities to prevent and reduce (mitigate) these problems? What more can be done? A case example explores one city’s efforts to develop an effective preventive approach. 1 Comments and images presented by Chief Deborah Linden, San Luis Obispo Police Dept, at the Alcohol Policy XV Conference held in Washington, DC on December 7, 2010: Session C-28 How California restaurants morph into bars and what the state ABC and cities are doing about it. Restaurants that “Morph” into Bars and Nightclubs in California Communities: What’s the Problem and What Can Be Done About It? SS1 - 47 4 What is morphing and how does it contribute to problem behaviors and unlawful practices? In California, far more drinking occurs at establishments licensed by the Alcoholic Beverage Control (ABC) as “restaurants” than at those licensed as “bars.” Significant problems occur at some restaurants that serve meals during the day, then morph into bar/nightclub operations at night. Most restaurants make this shift, which is permitted by ABC regulations, without creating visible problems. However, a small number of outlets licensed as “restaurants” generate high levels of police events. Research shows that about ten percent of restaurants in a given community create about 50 to 60 percent of total police events out of all restaurants in that community, mostly between 10:00 pm and 2:00 am (ABC mandatory closing hours for alcohol sales).2 According to analysis of police events and on-site observations,3 problematic morphing of bars and restaurants occurs especially when patrons engage in high levels of drinking and drunkenness in the context of large crowds and overcrowded premises. Excessive drinking and drunkenness lead to noise, fights and confrontational behavior, unwanted sexual advances, and other behavior. High levels of drinking in highly crowded conditions are especially difficult to control and are likely to disturb neighbors and damage nearby property. Venues that include dancing, live DJs and on-stage entertainment may be especially susceptible. Taken together these conditions pose major challenges for even the most capable management and most diligent oversight agencies. Where does morphing occur? A recent survey of Alcoholic Beverage Control (ABC) district offices4 revealed problems associated with morphing to be pervasive throughout the state. District office respondents confirmed studies of local police events showing that a small number of outlets create a disproportionate number of police events in each local jurisdiction.5 Respondents reported that morphing has been a troublesome part of restaurant operations for many years in all regions of the state, in large and small cities, in suburbs, and in rural areas. Some respondents reported that morphing has remained relatively steady over the past several years while others said it has been increasing. Studies using local police data provide a more prescriptive view, defining problematic morphing as more likely to occur in high-density locations. Most often these locations are downtown entertainment districts or suburban shopping malls, where multiple restaurant-bar establishments are clustered in a relatively confined area. Some of these areas catch on as late-night destinations that attract patrons from other cities. Marketing of special promotions and social networking through electronic media attract large crowds. Restaurants offering entertainment venues near large college campuses and in “hospitality” zones attract young people from out of town along with nearby college students and local youth.6 2 F. D. Wittman, “Lessons from Three Orange County Cities: Municipal Responses to Rapid Growth of Problems at On-Sale Retail Alcohol Outlets,” California Prevention Collaborative Annual Meeting, Napa, California, March 8-10, 2009. Prepared under Orange County Health Care Agency Contract MA-042-10010415 to CLEW Associates, Berkeley, California 3 K. Graham and H. Morel, Raising the Bar: Preventing aggression in and around bars, pubs, and clubs. Willan Publishing, Portland, Oregon, 2008. 4 F.D. Wittman and F. Latcham, Survey Report and Findings: ABC District Office Experiences with Restaurants that Morph into Bars and Nightclubs. Prepared for the Center for Applied Research Solutions, Sacramento, under contract to the California Dept of Alcohol and Drug Programs. Prepared by CLEW Associates, Berkeley, California. July 6, 2011. 5 F.D. Wittman and J. Harding, ASIPS/GIS Community Tour reports prepared for the Orange County Health Care Agency ADEPT (Alcohol Drug Education Prevention and Training) by CLEW Associates, Berkeley, California, for three cities: City of Fullerton (CY 2007-2010); City of Newport Beach (CY 2008-2010); City of Garden Grove (CY 2007-2010). 6 Comments by Police Chief, San Luis Obispo PD, during presentation to San Luis Obispo City Council October 20, 2009; and at meeting on May 23, 2011, hosted by Capt. Dan Hughes, Fullerton PD, to review City of Fullerton ASIPS/GIS Community Tour data. SS1 - 48 Suburban communities that look to restaurants as key downtown development projects often experience an unexpected and rapid rise in the density of bar-restaurants and nightclubs, rather than or in addition to traditional restaurants, in the development area. This increase is accompanied by a spike in late-night police events. Cities that offer “destination” entertainment and tourism districts, such as San Luis Obispo, Newport Beach, San Francisco, and Santa Barbara, attract large numbers of people that require a constant higher level of police supervision to protect public safety, manage large crowds and maintain public order.7 How has morphing grown to become a problem? How has the shift from restaurant service during the day to night-time bar/nightclub activity become troublesome in so many California communities? Three sets of circumstances have evolved over the past fifty years that help explain the rise of problematic morphing. (1) The restaurant industry has evolved from traditional dining, emphasizing meal service that includes alcohol only as an incidental part of the meal, to focus on a “hospitality” experience that blends dining, drinking and entertainment in an expanding environment of high-density community development and social networking. (2) The California State ABC is struggling to keep pace with restaurant industry growth and oversight for the industry’s evolution toward more drinking and entertainment. State licensing codes are out of date, staffing levels for monitoring and enforcement have decreased, and training resources have declined. These circumstances are putting pressure on local jurisdictions to participate more actively in oversight functions. (3) Despite the industry shift and decline of State resources, most local jurisdictions have not stepped up their oversight at the community level. Most cities and counties continue to rely on reactive law enforcement to address problems rather than make preventive of their land-use and zoning powers designed to support ongoing oversight of retail alcohol outlets (and all other land uses). However, a handful of municipalities are making promising, innovative use of local planning and zoning powers to address problems with morphing. 1. EVOLUTION OF THE RESTAURANT/HOSPITALITY INDUSTRY INCREASES FOCUS ON ALCOHOL SALES The restaurant industry has evolved from locally-owned businesses to include regional and national chain operations. With this change, restaurants have expanded their functions to include socializing, sports, and entertainment. Restaurants are a popular venue for promotions by the alcoholic beverage / hospitality industry. They are also principal components of city development and redevelopment plans. Alcohol sales represent a profitable source of revenue in an increasingly competitive environment both for the restaurateurs and the cities that authorize them. From mom-and-pop restaurant to hospitality enterprise. In the mid-1950s the restaurant industry began expanding from an enterprise comprised solely of locally-owned establishments serving a local clientele to include national and regional chains of restaurants serving a mass market under central corporate direction. Several chains have chosen to emphasize drinking and include entertainment and special events/community activities. For example, the Red Robin grew from a single tavern near the University of Washington in the 1940s to a multi-city chain brand in 1980 offering “gourmet burgers and spirits.” The chain grew to 150 restaurants nationwide by the year 2000. In addition to food, the chain offers an elaborate menu of alcoholic beverages. Other free-standing national chains such as Chili’s, Applebee’s, Red Lobster, and Dave & Buster’s promote mixed drinks and offer a traditional bar built as part of the restaurant. These chains contrast with Denny’s (a small percentage of the chain’s outlets serve alcohol), Sizzler (which serves only beer and wine), and fast-food restaurants such as McDonalds, which do not serve alcohol. 7 For example, the dedication of four police officers in San Luis Obispo to patrol of about a dozen late-night on-sales establishments in a high-concentration area exemplifies elevated police staffing levels required for entertainment zones in “destination” cities.5SS1 - 49 6 Beverages sales of all types, especially spirits-based mixed drinks, offer proven revenue growth and high profit margins as reported by top restaurant chains. With fewer people eating out in this latest recession, many restaurant chains looked to increased alcohol sales by bolstering nighttime activities, extending hours and marketing an “eatertainment” experience. Top restaurant chains have reported that late-night alcoholic beverages result in the largest increase in overall sales. For example, Applebee’s chains reported the highest margin of alcohol sales, 14%, in its history for 2010 (DineEquity Inc.). An Applebee’s franchise representative reported that “Our late night initiative has been really effective. It is centered on driving traffic from 9 p.m. to close. All [of our] Applebee’s are staying open to midnight or later now. We’ve revamped some of our happy-hour offerings, and we’ve introduced a higher level of activity, with louder music and lower lights. Really refocusing on being a bar” (Ruggles, 2011).8,9 Proliferation of bar-restaurants and entertainment venues is part of a larger pattern of urban and suburban development to accommodate higher population densities, pedestrian living, and urban excitement throughout the US over the last two decades. Large cities rebuild downtown and core neighborhood areas while suburban communities develop multi-use town centers and transit villages that include retail, residential, and entertainment activities along with day-time office uses. The hospitality industry and alcoholic beverage industry seek to include bars and restaurants as a major component of this development activity, working with local restaurant owners and real estate developers to advocate their joint interests. The Responsible Hospitality Institute (RHI), for example, funded in part by the alcoholic beverage industry, has a variety of programs and training sessions to support inclusion of recreational drinking and entertainment by “responsible” establishments in community development plans that create “vibrant” night-time economies in special entertainment districts and hospitality zones.10 How the State of California distinguishes between “bars” and “restaurants.” California Alcoholic Beverage Control Department (ABC) licensing categories for “restaurants” and “bars.” Despite having two separate categories, the ABC licensing system allows “restaurants” – places devoted mainly to serving meals – also to function as “bars” – places devoted mainly to drinking. California ABC regulations include five main license categories that distinguish bars from restaurants based on meal service and the type of alcohol served. (See statewide frequencies in Table 1). Restaurants (where meals are served) are shown as Type 41 (Beer & Wine Restaurant License) or Type 47 (beer, wine and spirits, called a General Restaurant License). Note there are about twice as many Type 41 Beer & Wine licenses (22,500) as Type 47 General licenses (13,000). Bars (where meals are not served) are shown as Type 48 licenses. (The ABC technical term for a “bar” is “public premises.”) There are about five times as many General license restaurants (Type 47) as General license bars (Type 48). Type 40 (Beer Bars) and Type 42 (Beer & Wine Bars) are shown here to present the full ABC inventory of on-sale retail alcohol outlets; however Type 40 and 42 licenses are few and do not contribute to problems with morphing. Table 1. Description of ABC On-Sale License Types Type On-Sale License Description No. of licenses in CA (2010) 40 On-Sale Beer (no meals)1,064 41 On-Sale Beer & Wine Restaurant (bona-fide meals)*22,450 42 On-Sale Beer & Wine Public Premises (Bars) (no meals)1,348 47 On-Sale General Restaurant (bona-fide meals)13,006 48 On-Sale General Public Premises (Bars) (no meals)2,842 *“Bona-fide meals” are regular meals (breakfast-lunch-dinner) prepared in a kitchen on premises 8 Ruggless, Ron (2011), “A new happy hour,” Nation’s Restaurant News. March 21. Retrieved from http://www.nrn.com/article/new-happy-hour. 9 For background discussion of the history of morphing and its control, see F.D. Wittman, “Restaurants that ‘morph’: Problems and prospects for prevention and mitigation.” Berkeley CA: CLEW Associates, July 15, 2011 (unpublished). 10 See Responsibility Hospitality Website at www.rhiweb.org SS1 - 50 Police events related to ABC License Types Type 47s stand out. People usually think bars, rather than restaurants, are the primary source of drunkenness and other alcohol-related problem behaviors at on-sale outlets. When measured by police events, however, Type 47 licenses stand out as the ABC license type that receives the greatest number of police calls for AOD offenses, as well as total police events. In part, this occurs because there are more Type 47s than Type 48 bars in a given community. However, a detailed examination of community-level police data reveal troublesome outlets – measured by the frequency of calls for service and types of offenses – follow similar patterns for both Type 47 and Type 48. These patterns show up in types of calls-for-service, frequency of calls per outlet, and range of calls per outlet, illustrated below. These similarities indicate that troublesome Type 47 and Type 48 outlets are similar kinds of establishments, typically characterized as a loud or rowdy bar, associated with very high levels of alcohol consumption and unruly behavior by patrons. Table 2 shows police events for a mid-sized California city (population 133,000) to illustrate these relationships.11 The total rate of police calls per outlet is virtually the same for Type 47s and Type 48s. The rates per outlet for AOD-related events and for arrests are comparable, although somewhat higher for Type 48s. Also similar is the pattern of police events (relative number of alcohol law violations, drug offenses, assaults, disturbances, and other alcohol-related offenses). Note there are fewer calls for service to far more numerous Type 41 Beer &Wine restaurants (77 Type 41s compared to 49 Type 47s). Type 41s generate about one-fourth the rate of AOD calls per outlet, and less than one-sixth as many arrests, compared to Type 47s. Table 2. Police Events at On-Sale Alcohol Outlets in a Mid-Sized, Middle-Class Calif City Calls for Service by ABC License Type, CY 2010 ABC Type Nbr of Outlets in City Total Calls for Service Total Calls per Outlet AOD Calls per Outlet Arrests per Outlet 41 77 659 8.6 1.1 0.8 47 49 1,819 37.1 4.4 6.1 48 8 301 37.6 6.8 7.6 High levels of police activity at licensed outlets. Types 47s in this example city lead the alcohol outlets among the “Top Ten” outlets that generate ten or more AOD events annually (violations of alcohol/drug laws such as public drunkenness). The table below shows that four Type 47s, two Type 48s, and one Type 41 generate 10+ police calls for AOD-specific offenses during the year. Table 3. On-Sale Outlets with 10+ AOD-Specific Events, Ordered by AOD Events and Total Events, with Arrests, by Address (Calendar Year 2010) ABC Type Establishment Type (Address not shown)Total Events AOD Events Total Arrests 47 Café/Dancing*152 39 32 41 Pizza Place*115 28 6 47 Bar & Grill* 120 21 24 48 Bar*100 16 22 47 Bar & Grill*69 14 15 11 City of Fullerton ASIPS/GIS Community Tour Report (CY 2010), prepared by CLEW Associates, Berkeley, California, under support from Orange County Health Care Services Agency ADEPT, August 25, 2010. 7SS1 - 51 8 Table 3. On-Sale Outlets with 10+ AOD-Specific Events, Ordered by AOD Events and Total Events, with Arrests, by Address (Calendar Year 2010) 48 Bar 57 14 13 47 Cantina*95 11 15 Totals 708 143 127 * This address also showed 10+ AOD Events in reports for CY 2008 and CY 2009 2. CALIFORNIA ABC IS CHALLENGED TO MAINTAIN UP-TO-DATE LICENSING FOR ON-SALE LICENSES The current ABC system for licensing on-sales retail outlets, created as part of agency reform in 1956, has not kept pace with changes in the on-sale hospitality industry. The California State ABC processes on-sale licenses through nineteen District Offices located throughout the state. A recent survey of District Office experiences with morphing12 identified four challenges faced by the ABC in managing problematic morphing in the burgeoning bar-restaurant industry: (1) Out-of-date ABC definitions for restaurants and bars; (2) Declining resources for licensee oversight, education and compliance; (3) Narrowly-focused and time-consuming policies for disciplinary action and license appeals; and (4) Dependence on local jurisdictions to participate in effective oversight of on-sale outlets. Out-of-date ABC license definitions for restaurants and bars The ABC Act definitions currently in force for restaurants and bars have not been updated since they were enacted in 1957. The Act defines restaurants and bars as two distinct types of on-sale establishments: • Restaurants, or “bona-fide eating places,” are defined by Business & Professions Code Section 23038; • Bars, or “public premises,” are defined by B&P 23039 (see Appendix). Bona-fide eating places are required to offer meals at customary times of day (e.g., breakfast, lunch, or dinner) that have been prepared in a kitchen on the premises. Persons under 21 are allowed on the premises. Public premises regulations do not permit meals to be served (though snack foods are allowed) and do not permit persons under 21 on the premises. Neither ordinance makes any reference to live music, dancing, or entertainment. The California ABC Act contains no definitions or regulations regarding nightclubs, dance-halls, or cabarets with live entertainment. The ABC permits these activities at restaurants and bars, at the discretion of the licensee and subject to local zoning ordinances. Definition of these activities is the purview of local land-use planning and zoning ordinances as described below. The distinction between these two definitions has become distorted and unclear as bar-like functions have entered restaurant settings. California court decisions have determined that bar-like functions may occur within a licensed restaurant (for example, a separate bar-counter and lounge area), allowing a part of the larger “restaurant” facility to function like a bar. Declining resources for ABC licensee oversight, education and compliance The current ABC Restaurant and Bar definitions were written in 1957 as part of a newly-minted agency reform with up-to-date legislation, a new charter, and a staffing level designed to provide a high level of on-site inspection 12 Op. Cit., F.D. Wittman and F. Latcham, Survey Report and Findings: ABC District Office Experiences with Restaurants that Morph into Bars and Nightclubs.SS1 - 52 and oversight for on-sale outlets. Over the last forty years, ABC staffing levels have steadily declined and other services for training, compliance and oversight have been challenged to keep pace with the steady growth of retail outlets. The decline in resources relative to industry activity imposes challenges along the entire continuum of ABC oversight from license application review, to education and monitoring for compliance, to enforcement of alcohol laws. ABC staff resources have declined. The ratio of alcohol outlets per ABC investigator has increased almost five-fold, going from one investigator per 220 outlets in 1965 to about one investigator per 1,000 outlets today, according to ABC figures. Said another way, currently the ABC has about the same number of staff it had in the 1950s to oversee about four times as many retail alcohol outlets today. These reductions have led the ABC to place increasing reliance on self-supervision by the licensee, and to encourage greater involvement by local jurisdictions and local community groups in retail outlet licensing and enforcement. Education and monitoring resources are voluntary, and meager. In response to community concerns, the ABC Central Office has developed well-regarded educational and monitoring resources to support self-supervision by licensees. ABC offers LEAD (Licensee Education on Alcohol and Drugs), a training program for both on-sale and off-sale operators. Help with bar-checks, surveillance, and Grants to Assist Police (GAP grants) also provide support for local jurisdictions. These services focus on techniques to prevent sales to minors and to inebriated persons, and on management practices to prevent disorderly operations. These resources, offered at no charge on a voluntary basis, are popular with licensees, but the recent recession has led to cutbacks in the number of trainings offered. As a result, many licensees who want and need these services are not being reached. Among the licensees most in need of these services, and least likely to request them, are operators who create high levels of police problems and community disturbances. • Responsible Beverage Service training. The ABC offers the Department’s free LEAD training a few times each year in each District. ABC scheduled a total of 242 LEAD training sessions in 2012 to reach approximately 50,000 on-sale outlets. (RBS training is both highly valuable and poorly underutilized in other ways noted in the Conclusion.) • Grants to assist local law enforcement agencies. The state provides competitive Grant Assistance Program (GAP) contracts to local law enforcement agencies to assist retail operators with compliance and enforcement of alcohol laws. The availability of these highly popular grants (52 in 2012) is well below the demand from the State’s nearly 500 cities and 58 counties. • Bar-checks and covert surveillance. Unannounced site-visits by the police and ABC investigators to licensed establishments help remind operators of the duty to follow alcohol laws closely. ABC provides training for local jurisdictions and limited on-site support for more serious cases. Narrowly-focused and time-consuming policies limit disciplinary action and license appeals ABC procedures for case-level retail license enforcement and appeal are complex and demanding. ABC license enforcement follows a highly demanding complaint-driven process initiated by a “protestant” from the community. Enforcement starts with collection of evidence by sworn officers (ABC or local law enforcement) to support formal proceedings. Once sufficient evidence has been collected, the ABC files a charge (“accusation”) against the licensee. The accusation is heard by an Administrative Law Judge (ALJ) who rules narrowly on the specific violation in relation to the specific outlet address. These procedures require considerable time and effort by the ABC and by the protestant. Appeals through the ABC Director and the courts can add years and considerable expense to the process. 9SS1 - 53 10 Methods are available to pinpoint high-risk outlets and address certain high-risk practices among outlets at the community level. The California ABC has developed several well-respected enforcement methods to address chronic community-level problems such as sales to minors (Decoy Buys) and multi-agency inspection of high-problem premises (Impact Program). These measures complement police DUI checkpoints for violation of drinking-driving laws and “place of last drink” studies that identify high-risk bars and restaurants. These expensive labor-intensive methods are not applied on a frequent or routine basis, except when cities in metro areas combine to use DUI checkpoints during certain holiday weekends. Impact of ABC shortfalls on operators of bars and restaurants. A bar-restaurant operator who participates on a county DUI task force laments the lack of RBS training and enforcement of ABC laws against over-serving. This operator has written a private memoir13 that describes his experiences opening a bar-restaurant that offered dancing and entertainment to a young Southern California clientele at a location near beaches and resorts. He started his new business with great enthusiasm, learning on the job how to create a sound business plan and how to cooperate with neighbors and local officials. He also reports that during this period he received no guidance of any kind from the ABC or city agencies (nor did he think to ask) regarding responsible alcohol service, effective patron management and house security policies. He acquired his alcohol management skills the hard way following struggles with his partners that brought multiple citations, tumultuous operations, and forced closure of one establishment. His experiences made him highly critical both of the ABC’s lack of training for individual operators and of city inaction that let several fellow-operators create a hyper-competitive, over-serving bar- restaurant environment that affected the entire community. This combination of official inaction and aggressive marketing created challenges for profitable quiet operation and increased police/community problems but none of his competitors experienced any negative consequences from the ABC or local authorities for over-serving and poor patron management: “I’ve been in the alcohol selling business for over twenty-one years and have not heard of a single violation for serving an intoxicated customer. I called several owners and managers who have worked in the hospitality business in Orange County for many years…Not one person could remember a single incident... “I then contacted the local ABC office and talked with a very helpful investigator …(who)… informed me that in the prior year, 2011, a total of zero violations had been issued for serving an intoxicated customer … in Orange County. Zero. There are over 3,400 active on-sales licensees (in the county). (p. 104)” The memoir calls for the State to pursue a balanced policy of prevention training and diligent enforcement at far greater levels than the author encountered. The author is adamant that the industry cannot reform itself without this oversight. Further, the author holds cities responsible for planning and land-use oversight to avoid over- concentration and to establish an appropriate business climate with written community operating standards for alcohol outlets. The author refers to an important division of labor shared between local planning and zoning authorities and the ABC for the oversight of retail alcohol outlets explained below. ABC reliance on local jurisdictions. The ABC shares authority with local jurisdictions (cities and counties) in the process of granting an ABC license and enforcing ABC laws per the California ABC Act (Business and Professions Code, Division 9). The ABC Act gives local jurisdictions opportunities to play vital roles in both licensing and enforcement to prevent problems 13 Gregg Hanour, A Business Approach to Reduced Drunk Driving, CreateSpace Independent Publishing Platform (December 14, 2012). ISBN-10: 1481005717; ISBN-13: 978-1480115715. Available on amazon.com SS1 - 54 related to morphing. In general, the ABC has no formal programs or bulletins to inform local jurisdictions on best practices, precedents, and problematic aspects of the exercise of local powers vis-à-vis the ABC. The local jurisdiction must decide for itself how vigorously its local public agencies will participate in these functions, particularly with respect to morphing, a matter on which the ABC is officially blind. Three specific sections of the ABC Act described below allow local jurisdictions to shape ABC actions regarding issuance and enforcement of retail alcohol outlet licenses. Local planning and zoning (P&B 23790 and 23791). These two sections of the ABC recognize that local jurisdictions’ (cities and counties) powers to control alcohol outlets through land-use planning and zoning are determinative for retail alcohol outlet licensing and cannot be superseded by the ABC. (see Section 3 below for further discussion). Public convenience or necessity (B&P 23958.4). This ABC “Undue Concentration” law allows a city or county to block a license for a bar, but not for a restaurant, by making a finding of “no public convenience or necessity” (PC or N) for retail alcohol outlets located in high-crime areas or in areas with a high density of alcohol outlets measured by population (census). The law allows the local jurisdiction (city or county) to stop the flow of more bars (Type 40, 42, 48 licenses) into an impacted area by making this finding on a case by case basis. However, the law includes a loophole for restaurants (Type 41 and 42 licenses) that allows the applicant, rather than the city or county, to determine whether “public convenience or necessity would be served by issuance of the license” for a “retail on-sale bona fide eating place” in the impacted area. The Act includes this language: “(b) Notwithstanding Section 23958, the department may issue a license as follows: (1) With respect to a… retail on– sale bona fide eating place license...if the applicant shows that public convenience or necessity would be served by the issuance.” That is, the ABC Act allows the applicant for a Type 41 or Type 47 license to make his or her own PC or N determination, rather than the city or county. California alcohol policy advocates view this loophole as being in conflict with prevention goals.14 Shared jurisdiction for enforcement of ABC laws (P&B 24202, 25619). Although the ABC has exclusive authority for issuing and revoking licenses, enforcement of ABC laws is a shared responsibility between ABC and local law enforcement. Because the ABC education and monitoring system is voluntary and enforcement is complaint-driven, the ABC depends heavily on local jurisdictions to monitor licenses and help with enforcement investigations. 14 The Redevelopment Committee, California Council on Alcohol Policy, explored this issue in 2009-2010. 11 Shared Authority for Regulation of California Retail Alcohol Outlets: Powers of the State Alcoholic Beverage Control Department and Local Jurisdictions (Cities and Counties) SS1 - 55 12 3. LOCAL JURISDICTIONS CAN DO MORE TO CONTROL AND REGULATE How have California cities and counties responded as the ABC has shifted its regulatory model to include greater reliance on industry self-monitoring and local control? The following section reviews current responses to morphing problems, describes local powers available to cities to take effective action, and identifies actions cities can take to prevent and reduce morphing. Initiatives being undertaken by the City of San Luis Obispo, whose downtown bar-restaurant establishments provide the opening scene for this Policy Brief, illustrate these actions. How problems with morphing take cities by surprise. Most communities welcome new and expanded restaurants with open arms. Most local officials and other local stakeholders relish the prospect of positive contributions from restaurants, with seemingly little regard for the potential threats to public safety, health problems, and community disruption that are associated with unchecked growth and development. With respect to restaurants, cities tend to defer to the marketplace to determine outlet location, size of establishment, type of use, densities (number of outlets in a given area or per population), and operating requirements. Use permits are issued essentially as requested (“as of right”) without special operating conditions or restrictions. This makes it relatively easy for an existing restaurant to expand to bar- and entertainment-oriented activities up to 2:00 am with few restrictions from the city or the ABC. In the context of rapid local development or redevelopment, the number of restaurants operating under these circumstances can grow quickly in high-density, downtown and redevelopment areas. Growth occurs both for the number of outlets and for increased drinking and entertainment activities. In as few as three or four years, the number of restaurants seats in a downtown area can nearly double.15 In such a rapidly growing area some restaurants begin promoting drink specials coupled with alcohol-related special events to stay competitive. Local officials (and sometimes the operators themselves) are often taken by surprise at rapid increases in public drunkenness, overcrowding, disturbances, violence and injuries, youth drinking and DUIs. They are also surprised at the extent to which these behaviors can overflow into the surrounding community. A preventive approach is readily available to all local jurisdictions through local planning and zoning ordinances. As noted in the preceding section, the ABC relies on local jurisdictions to regulate land-use aspects and general business operations of retail alcohol outlets as part of the State licensing and enforcement procedures (B&P 23790). Yet, most local agencies and community groups do not realize the extent to which their local planning and zoning powers can deal effectively with morphing. Currently just a handful of cities and counties make full use of their powers to work with restaurants in ways that manage problems as soon as they appear or avoid them altogether.16 ABC allowance for local zoning to regulate on-sale alcohol outlets. The ABC Act recognizes that the State cannot regulate on-sale and off-sale outlets without participation by the local jurisdiction. The State lacks capacity to regulate and manage the actual distribution and operation of retail alcohol outlets at the community (city or county) level. The Act accordingly relies on the local jurisdiction to address these issues through zoning and land-use ordinances: The ABC will not issue a retail alcohol license “contrary to a valid zoning ordinance of any city or county” (B&P S. 23790). This means the ABC District Office will not complete processing of a 15 Op. Cit., F. Wittman, Lessons from Three Orange County Cities. See discussion for City of Fullerton. 16 F.D. Wittman and M.E. Hilton, “Uses of planning and zoning ordinances to regulate alcohol outlets in California cities, in H. Holder (ed.), Control Issues in Alcohol Abuse Prevention: Strategies for States and Communities, Greenwhich CT: JAI Press, 1987, 337-366.SS1 - 56 license application until the city or county certifies that the candidate outlet meets local planning and zoning requirements. The ABC thus sets the stage for the local jurisdiction to set limits on locations, numbers, and types of outlets that will receive use-permits, as well as to establish safe operating conditions for outlets. The ABC provides this opportunity to each local jurisdiction but does not require it. The jurisdictions are left to decide for themselves how diligently to apply local planning and zoning ordinances to retail alcohol outlets on a scale that ranges from laissez-faire to local control. At the laissez-faire (liberal) end of the scale, local jurisdictions allow on-sale outlets to operate as regular businesses “as of right.” At the more tightly regulated end of the scale, cities and counties impose “local control” – local oversight on a case-by-case basis that allows denial of a permit or conditional approval for each outlet through a local conditional use permit (CUP) written into the local planning and zoning code.17 Local Control: City and county zoning for bars and restaurants. “Local control” is a term for city or county adoption of CUP requirements written into the land-use plan and zoning ordinance specifically to prevent public safety and health problems, and to protect community well- being related to retail alcohol outlets. Local control allows cities and counties to monitor retail alcohol outlet operations closely and to take action on them quickly before they get out of hand. Cities that adopt “as of right” ordinances forego this level of oversight, and thus tend not to see the problems coming until they erupt into major community concerns. Restaurants, bar-restaurants bars, and nightclubs as a local land-use issue. Although state law does not clearly distinguish between “traditional restaurants,” “bars,” and “nightclubs,” local land-use and zoning ordinances are well suited to make such distinctions according to types of land-use and operational activities. Local jurisdictions can assign appropriate land-use zones (geographic areas) for each land-use category of ABC-licensed “restaurant” to assure operations do not disturb neighbors or create undue police problems. Each local jurisdiction can fine- tune its CUP to set operational requirements for service of alcoholic beverages and management of the premises to prevent high-risk alcohol-related behaviors. Cities that apply local control to all bars and restaurants – that is, to all local ABC License Types 40, 41, 42, 47, and 48 – can encourage an active restaurant / night-life community while avoiding conflicts with other land-uses, public safety problems, and unpleasant surprises and expenses. Features of Local Control for on-sale alcohol outlets (all types of restaurant, bar, nightclub). A local alcohol outlet control ordinance includes at least the first three of the following six components. A few cities have designed all six components to work together in an effective oversight system.18 • Definition of on-sale land-use types. On-sale outlets are defined in clear land-use and behavioral terms (“restaurants”, “bars,” “nightclubs,”) and are assigned to zones in the city land-use plan on the basis of compatibility with nearby uses and the community as a whole. • Conditional use permits (CUPs) for each new / expanded alcohol outlet. CUPs set operational and design standards to protect health and safety through operating conditions such as RBS training, security management, alcohol promotion activities, physical design for surveillance and crime prevention, hours of operation, security, and business plan review.19 • Sensitivity to proximity and adjacency issues. Local zoning and land-use planning establishes zoning restrictions, spacing requirements and late-night hours restrictions to buffer the impact of bars and restaurants on nearby housing and other business. • Deemed-approved ordinances (DAOs) for existing outlets. DAOs bring problematic existing outlets “grandfathered” under previously-granted use-permits into conformity with new CUP requirements. 17 F.D. Wittman and P. Shane, Manual for Community Planning to Prevent Problems of Alcohol Availability, prepared for California Dept of Alcohol and Drug Programs. Berkeley CA: Prevention Research Center, September, 1988. 18 F. D. Wittman, F. Latcham, Public Oversight for San Luis Obispo Retail Alcohol Outlets: Issues for Planning and Zoning. CLEW Associates. Berkeley, California, October 14, 2009. 19 “Best Practices in Municipal Regulation to Reduce Alcohol-Related Harms From Licensed Alcohol Outlets, With Model Ordinance and Bibliography,” Center for the Study of Law and Enforcement Policy, Pacific Institute for Research and Evaluation (Ventura, CA: Ventura County Behavioral Health Department Publication, 2008). 13SS1 - 57 14 • Density limits. Cities set limits on the density of alcohol outlets by geo-area and by proximity to outlets of similar types. These limits can help avoid conflicts between competing land-uses for non-alcohol businesses and housing; they can also reduce stresses on community services and groups due to crowding, and can reduce crime and community disturbances. • Fee recovery component. The local ordinance includes a fee schedule charged to the alcohol outlets to cover public agency costs required to administer the ordinance. Conditional use permits (CUPs) for on-sale alcohol outlets. Each city develops its CUP ordinance based on local needs and preferences, and on local customs and past experiences with alcohol. The CUP accommodates different kinds of outlets and different types of uses as shown in the generalized outline form in Table 5 (See below). The CUP can be fine-tuned based on needs for the specific kind of outlet. For example, the city can tailor security standards and responsible beverage service (RBS) training requirements according to establishment risk level (for example requiring more on-site security and higher-level RBS training for managers and servers at higher- risk establishments). Table 5. Conditional Use Permits for On-Sale Alcohol Outlets Permitted Uses for On-Sale Retail Alcohol Outlets Example City, California Traditional Restaurants Bars and Bar- Restaurants Nightclubs Architectural Features Bar seating for 10% or more of customers No Yes Yes Entertainment devices – Large-screen TV, jukeboxes No Yes Yes Games of skill, amusement devices, contests No No Yes Elevated stage, dance floor, sound board No No Yes Operating Features Responsible beverage training (RBS) Low Medium High Late-night operation after kitchen closes (no minors)No Yes Yes Promotions and advertising for special events No No Yes Alcohol advertising that encourages heavy drinking No No No Over-pours and self-serve practices No No No Zones where outlet is allowed Residential-commercial Yes No No Commercial-mixed use office & retail Yes Yes No Commercial-downtown & entertainment Yes Yes Yes Implementation of CUPs for problems related to morphing. An estimated 60 percent of California cities have adopted CUPs for bars and restaurants.20 Although limited formal research has been conducted to demonstrate the effectiveness of CUPs to reduce problems such as violence related to morphing,21 evidence is accumulating to show that greater alcohol outlet density adversely affects public health and safety.22 California cities are adopting alcohol CUP and DAO ordinances specifically to address problems with morphing after the problems attract widespread public attention.23 Cities report considerable success using CUP ordinances to link police departments and planning/zoning offices in an ongoing (routine) oversight process that includes the following components, described further in the case example below: (1) Reliable documentation and monitoring of police events at all on-sale outlets to show clearly which outlets (or geographic districts or areas) generate high levels of police calls; 20 Op. cit., F.D. Wittman and M.E. Hilton, “Uses of planning and zoning ordinances to regulate alcohol outlets in California cities.” 21 R. Parker, “Alcohol and Violence: Connections, Evidence, and Possibilities for Prevention,” (Parker), in Journal of Psychoactive Drugs (Eds. Rawson, Finnerty & Urada SARC Supp’t No. 2, May 2004). 22 “Alcohol Outlet Density and Public Health,” Alcohol Justice, see www.alcoholjustice.org/resources/fact-sheets/html 23 Op. cit., F.D. Wittman, Lessons from Three Orange County Cities. See discussion for cities of Fullerton and Newport Beach.SS1 - 58 (2) Routine training and surveillance to help the operator maintain outlet performance to comply with CUP requirements; (3) Prompt enforcement to address problems as soon as they appear, rather than letting problems increase in visibility and difficulty before taking action; (4) Sustained support and direction from local elected officials (e.g., city councils, planning commissions, zoning boards) for diligent use of public resources and continuing commitment to find the appropriate place for bars and restaurants in the long-range community plan. Partnership with ABC for alcohol outlet oversight. Opponents of local control sometimes say “oversight of alcohol outlets is an ABCs responsibility, not a local obligation.” The opposite is true. The ABC is solely responsible for the retail alcohol license, but the local jurisdiction bears primary responsibility for oversight of the place where the license is located. As noted above, ABC invites and encourages (but does not require) the local jurisdiction to activate effective community oversight within the regulatory shell provided by the ABC. Table 6 illustrates this relationship. Table 6. Comparison of State ABC Licensing Requirements and Local Zoning Conditions STATE ABC LICENSE REQUIREMENTS LOCAL ZONING CONDITIONS ABC licenses an individual operator Zoning office issues a use-permit for a location ABC definitions allow “restaurant” and “bar” to be merged at a single location; no “nightclub” definition. City can distinguish between restaurants, bars, and nightclubs by their primary function, and define geographic parameters for each as distinct land-uses. Bans sale of alcohol from 2:00 am to 6:00 am Hours of outlet operation are set locally LEAD-RBS training focuses on alcohol laws and general features of good practice Local RBS training can be expanded to include high-risk sales practices of specific concern to community Proximity issues covered by minimum distances from residences and sensitive uses (discretionary) Proximity and spacing requirements can fit the local ecology and community concerns (can be mandatory) Density requirements (crime, population) apply to restaurants only with consent of licensee (S. 23958.4) Density requirements by geo-area and crime rate apply to all on- sales at discretion of jurisdiction License fee renewals are minimal for on-sale outlets Local jurisdiction may set use-permit fees to cover local costs of administration for local control ABC has no CPTED (Crime Prevention Through Environmental Design) requirements for on-sale facilities Local jurisdiction may require preventive design features ABC enforcement proceeds through the Accusation process CUP enforcement proceeds through local zoning board indepen- dently of ABC ABC enforcement operates primarily on a post-hoc problem- solving basis with limited staff resources Local oversight can include compliance training, preventive surveillance and problem-solving from a variety of sources. An exemplary use of Local Control to reduce morphing The City of San Luis Obispo exemplifies municipal leadership in managing chronic drunkenness and police events related to morphing (described in the opening scene for this Brief). After years of enhanced policing in the Downtown area, and no relief from the problems, the city engaged in a three-year planning process to adopt new land-use and zoning requirements that establish conditional-use standards for preventing drunkenness and related behaviors among all of the city’s retail alcohol establishments. Under joint leadership from the police department and the planning department, the city expanded its original vision beyond the Downtown area, and created a new deemed-approved ordinance applicable to all on-sale and off-sale retail alcohol outlets throughout the city. This case example outlines the features of the ordinance, the process by which the ordinance was established, and the city’s plans for implementation and continuing oversight. 15SS1 - 59 16 Features of the ordinance. Action by the San Luis Obispo City Council in June, 2012, filled three major gaps in public oversight to “enhance alcohol regulation in a manner calculated to give the City more effective local controls to address problem outlets:”24 These actions include: • A new land-use category for restaurants defined “Restaurants with Late Night Alcohol Service” as restaurants that serve alcohol after 11:00 pm. • A new deemed approved ordinance25 holds all on-sales and off-sales outlets, including new and existing outlets, accountable for safe and responsible operations through operating conditions (CUPs) previously applied only to bars and nightclubs. All existing outlets defined as Late-Night Restaurants are deemed existing non-conforming uses subject to CUP standards. • Additional CUP requirements apply to new off-sales outlets whose primary activity is the sale of alcohol (not incidental sales in grocery stores and convenience stores). Local planning process. A four-step participatory planning process invited all local stakeholders to articulate problems and possible solutions related to morphing at Downtown restaurants. The process explored ways to prevent problems related to excessive drinking and drunkenness through a combination of improvements to hospitality industry practices and greater local public oversight. The director of the SLO Community Development Department made efforts to keep the process thorough, inclusive, transparent, and civil. The city council kept up the pressure on all parties to act expeditiously. (1) Documentation (August – October 2009). The planning process began with comprehensive documentation of all police events at all retail alcohol outlets in the entire city for a full calendar year. Total calls for service and all AOD-related calls were summarized (54 police event categories) for each ABC-licensed alcohol outlet address by time (time of day, day of week, and month), and by ABC License Type. Police events at alcohol outlets were mapped using GIS displays. Tables were also provided to show the proportion of total police resources being devoted to management of retail outlets, in particular to the Downtown on-sales operating late at night. This documentation was presented to the City Council in a public meeting on October 20, 2009, in the form of a City of San Luis Obispo ASIPS/ GIS Community Tour report posted on the City Council’s website for public access (ASIPS/GIS = Alcohol/Drug Sensitive Information Planning System in a Geographic Information System format).26 This report provided all stakeholders – owners/managers of the restaurants, neighbors, customers, health and social service providers, public officials, educators, concerned members of the public – with an accessible, complete, and neutral birds- eye view of community police experiences at all ABC-licensed outlets, presented in the context of total police events throughout the city. 24 San Luis Obispo Community Development Department, Review of Alcohol Outlet Strategies – Enhanced Zoning regulations to improve public safety (R/TA 101- 11), May 15, 2012 25 Deemed Approved Alcoholic Beverage Sale Regulations, Ordinance No. 1578 (2012 series), amendments to Title 17 (Zoning Regulations), San Luis Obispo Munici- pal Code. Adopted by City Council on June 10, 2012. 26 City of San Luis Obispo ASIPS/GIS Community Tour (CY 2008), CLEW Associates, Berkeley CA, October 15, 2009. SS1 - 60 (2) Research on oversight methods and an SLO “Hospitality Zone” (January 2010 – January 2011). ASIPS reports are intended to support open community discussion to prevent community-level AOD problems by helping focus attention on management of the settings (locations) where AOD problems occur. To support this discussion, a policy memo accompanying the Community Tour report identified eight issue-areas for consideration regarding local control of retail alcohol outlets.27 This memo helped frame action by owners/ managers, occupants/neighbors, and officials/other interested parties to create local policies to minimize and prevent health and safety problems related to the outlets.28 The SLO planning and police departments spent the year researching ordinances and oversight efforts by other cities to regulate on-sale alcohol outlets. Downtown bar-restaurant operators met regularly to explore creation of a hospitality zone for Downtown SLO in similar cities. The city obtained an ABC-funded local law enforcement assistance grant to help explore “hospitality zones” and “entertainment zones” in SLO. (3) Nightlife Public Safety Assessment (March – November 2011). The city simultaneously stepped up its current enforcement activity and formally explored the concept of developing a Hospitality Zone. The city used the ABC grant to contract with Responsible Hospitality Institute (RHI) to explore creation of a Hospitality Zone in Downtown SLO. RHI hosted four roundtable discussions (Community, Hospitality, Safety, and Development), conducted a leadership summit, and presented a final report to capture stakeholder sentiment for improved practices and oversight to reduce problems related to excessive drinking, drunkenness, and over-crowding. The bar-restaurant operators formed a “Safe Nightlife Association” (formerly the Restaurant and Bar Owners Association) to prepare recommendations for improved practice. Meanwhile the city staff reported through the Chief of Police to City Council on November 15, 2011, that “Staff has developed an action plan that includes a new regulatory approach designed to mitigate the impact of nuisance and criminal activity caused by alcohol outlets, especially when voluntary compliance and education has not been effective” (p. B3-1).29 City Council instructed staff to proceed with developing the regulatory approach into a formal policy recommendation for action by the council. (4) Draft and approve new regulations (November 2011 – June 2012). During Spring, 2012, the planning department and police department developed language for the Deemed Approved Alcoholic Beverage Sale Ordinance adopted by the City Council in June. The city found that conventional definitions of “restaurant” (by ABC License Type, by percentage of food/alcohol sales, and by size/type of business or land-use) failed to predict which outlets experienced police problems related to morphing. The variable that worked best was time of day: Late-night operations, after 11:00 pm, as determined by a combination of police data and participants in the Nightlife Public Safety Assessment. Simultaneously, the Safe Nightlife Association announced its intention to adopt five programs for its members: SLO Safe Ride, Downtown Clean-Up, ABC LEAD training (RBS training), “One 86-All 86” plan to make sure a patron ejected from one bar is denied service at all bars, and Patron Responsibility (a marketing program focused on personal responsibility and safety for patrons). Implementation of the new ordinance. The new DAO ordinance positions community stakeholders to grapple with long-standing morphing issues among Downtown outlets. None of the five programs offered by bar-restaurant operators impose a covenant among the operators to mitigate troublesome alcohol service and patron management 27 F. D. Wittman and F. Latcham, Public Oversight for San Luis Obispo Retail Alcohol Outlets: Issues for Planning and Zoning. Memo prepared by CLEW Associates. Berkeley, California, October 14, 2009. 28 A. Goldberg and F.D. Wittman, Taking Charge: Managing Community Alcohol and Drug Risk Environments. Developed for the California Dept of Alcohol and Drug Programs by the Community Prevention Planning Project, Institute for the Study of Social Change. University of California. Berkeley, 2005. 29 San Luis Obispo City Council Agenda Report from Chief of Police: “Update on Alcohol Outlet Public Safety Strategies,” November 15, 2011. 17SS1 - 61 18 practices that clearly contribute to excessive drinking and drunkenness. Problems that stem from aggressive alcohol promotion and pricing, over-pouring policies, and failure to monitor patron status and condition fall outside of the scope of programs offered by the bar-restaurant operators. The new ordinance creates leverage for the city to mitigate such problematic policies and practices through conditional use permit requirements, including existing outlets through the DAO process. How this leverage is applied depends partly on whether high-risk operator practices continue (ideally, the bar-restaurant operators will help each other moderate their own behavior), and partly on whether community stakeholders vigorously demand action on their concerns for public health and safety. SLO city agencies will serve both as handmaidens to support efforts of these community stakeholders, and as arbiters to monitor outlet performance against CUP standards. City agencies plan to implement the new DAO as follows:30 • Continue surveillance of alcohol outlet performance. Routinely scan all retail alcohol outlets (both on-sale and off-sale) to verify compliance and to identify problems promptly, keeping the stage set for appropriate action as needed. • Provide prompt and appropriate mitigation. Mitigate violations and irregularities as soon as they appear in a fair and proportionate way that builds good will by focusing on compliance and performance for the new DAO ordinance before seeking recourse through hearings, sanctions and punishment. • Sustain transparency and provide feedback. Maintain stakeholder involvement regarding public safety and health issues, and keep abreast of quality of life issues. The City Council requires the Community Development Department to make an annual progress report to the city council. • Integrate results of day-to-day oversight into the community’s long-range plan. The Community Development Department is slated to create an “alcohol element,” which includes retail alcohol outlets, during scheduled revisions to the county General Plan. Issues of appropriate density and best mixes of alcohol outlets with other land-uses will be addressed based partly on experience with implementation of the Deemed Approved Alcoholic Beverage Sale regulations and partly on further research. As experience accumulates with DAO administrative costs, City Council may shift these costs from SLO taxpayers to outlet operators. CONCLUSION How can the restaurant industry, the ABC, and other State agencies better address public safety and health problems related to morphing at the community level? What more can be done to help local jurisdictions mitigate and prevent problems related to morphing? The burgeoning restaurant / hospitality industry can be expected to seek expansion of its dining, drinking, and entertainment services. The ABC and local jurisdictions will continue their work to regulate this industry to protect public health and safety, and to establish local land-use planning and zoning requirements that keep local retail alcohol outlets in balance with other competing uses. Challenges to effective ABC oversight of morphing can be expected to continue. State-level redefinitions of the ABC Act, increased staffing, and greater resources for training and enforcement are all unlikely at the present time due to the State’s budget problems. Accordingly, at this writing it appears the prevention community’s most effective path forward, while continuing to work closely with the ABC, is to pursue greater oversight by local jurisdictions and more self-policing by the industry. On the positive side, two under-used oversight technologies are readily available to support local efforts to prevent problems with morphing. The first is responsible beverage service (RBS) training and management. The second technology is grounded in local land-use planning and zoning specifically to manage retail alcohol outlets. 30 Telephone interviews by author with Doug Davidson (August 9, 2012) and Derek Johnson (August 17, 2012), Community Development Department, City of San Luis Obispo.SS1 - 62 RBS training moderates the interaction between the establishment that pours the drink and the patron who consumes it. An RBS initiative developed at the city or county level considers the flow of this interaction from community oversight (zoning and law enforcement) to management practices, to server training. An effective municipal or county RBS initiative must go beyond training individual staff and post-hoc consulting with individual establishments since there is little indication that individual-oriented RBS efforts can mitigate alcohol problems at the community level. However, there is research to support the efficacy of community-level RBS initiatives that include strengthened management practices and increased law enforcement. These initiatives can also employ community mobilization, media campaigns and compliance-oriented consultation in addition to RBS training. (These measures taken together support server implementation of RBS training and signal to patrons and neighbors that excessive drinking and drunken behavior will not be tolerated.) In one community study with all these components in place, overall denial of service to intoxicated bar-restaurant patrons nearly doubled.31 RBS training programs in most California cities currently focus on training for individual servers and individual establishments. In addition to information about its LEAD program, the ABC website posts contact information for approximately 50 non-LEAD RBS training programs. These programs meet minimum curriculum standards but the ABC does not monitor or evaluate the programs, and therefore the site includes a disclaimer stating the ABC does not endorse these programs. It appears that most California cities requiring RBS training refer outlet operators and servers to ABC rather than develop their own programs. It also appears that few local jurisdictions maintain close oversight to assure operators and services are meeting RBS training requirements. California communities thus experience a significant gap realizing the potential between current practice that requires RBS training for the individual server or establishment and a fully-developed community level RBS initiative capable of community-level reduction of problems with late-night service at morphing restaurants. What would happen to problematic morphing in California if local communities were to lift their focus on RBS training to development of a city- or county-level initiative based on full use of local zoning and enforcement powers to require preventive management of all on-sale outlets (bars, restaurants, nightclubs), including well- designed and well-managed RBS training? Will cities and counties develop sustainable oversight systems that eliminate hot-spots expeditiously and nip future problems in the bud by identifying them as soon as they appear, rather than wait for them to get visibly worse? The answer depends on the extent to which California’s cities and counties choose to take full advantage of their local planning and zoning ordinances. Similar to RBS training, local planning and zoning ordinances are currently underutilized with respect to retail alcohol outlets. An initiative that combines enhanced RBS programming with greater planning/zoning oversight offers considerable potential for reducing and managing late-night alcohol-related problems attributed to bar-restaurants. The problems stem largely from a nightly routine of over-serving practices and under-management of patron behavior and expectations, typically in high- volume, over-crowded conditions. These precursor circumstances could be managed on a preventive basis through enhanced RBS training and expanded CUP operational requirements, sited in facilities appropriately zoned, sized and designed to avoid creating disturbances, and applied on a sustainable basis to all existing (grandfathered) outlets through a DAO. There are leadership opportunities for the ABC and other State agencies (Department of Alcohol and Drug Program, Department of Public Health, Office of Traffic Safety) to guide local jurisdictions towards RBS training and management and to promulgate RBS policies and practices to the field. Similarly, local jurisdictions (cities, counties, and their statewide organizations such as the League of California Cities) could make greater use of current planning and zoning powers to realize the benefits of active oversight for all retail alcohol outlets, including all restaurants, through conditional use permits (CUPs) and deemed-approved ordinances (DAOs). 31 K. Warpenius, M. Holmila & H. Mustonen, “Effects of a community intervention to reduce the serving of alcohol to intoxicated patrons,” National Institute for Health and Welfare (THL), Department of Alcohol, Drugs and Addiction, Helsinki, Finland, Addiction, 105, 1032–1040 (2010).19SS1 - 63 20 Expanded oversight at the city and county level offers all local stakeholders the opportunity to explore both the proper place (through land-use policies) and the appropriate operation of bar-restaurants (through CUPs and DAOs) in the community. Local agencies and concerned community groups, emboldened with the powers provided by local ordinances, planning tools, and use permits, can set effective limits on numbers, outlet types, locations, and operations to prevent restaurants from morphing into problem-outlets. As restaurant operators, the alcoholic beverage industry, and the hospitality industry continue seeking to expand, local agencies and community groups can develop local controls that set boundaries for density, location, and operation that keep alcohol-related problems in check. San Luis Obispo offers an example for other cities to use in designing their own CUP and DAO ordinances for all retail alcohol outlets – including restaurants – through healthy local debate that resolves differences between those who insist on “patron responsibility” (hold the drinker responsible) and those who demand “operator accountability” (hold the operator responsible). Such a public process, mediated by local officials and perhaps assisted by county alcohol/drug programs and the ABC, will allow the community to enjoy its restaurants, bars and nightclubs with a minimum of harm, damage, and public expense. APPENDIX State ABC Act Definitions for restaurants and bars. ABC Act 23038: “Bona fide public eating place” (Restaurant) means a place which is regularly and in a bona fide manner used and kept open for the serving of meals to guests for compensation and which has suitable kitchen facilities connected therewith, 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 of 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 a compliance with this requirement. “Guests” shall mean persons who, during the hours when meals are regularly served therein, come to a bona fide public eating place for the purpose of obtaining, and actually order and obtain at such time, in good faith, a meal therein. Nothing in this section, however, shall be construed to require that any food be sold or purchased with any beverage. ABC Act 23039: “Public Premises” (Bar) means premises licensed with any type of license other than an on- sale beer license, and maintained and operated for the selling or serving of alcoholic beverages to the public for consumption on the premises, and in which food shall not be sold or served to the public as in a bona fide public eating place, but upon which premises food products may be sold or served incidentally to the sale or service of alcoholic beverages, in accordance with rules prescribed by the department. Credits: Thanks to readers who made helpful comments on earlier drafts – Chris Albrecht, Lauren Tyson, Dick Kite, Deborah Linden, Doug Davidson, and Derek Johnson. The idea for this Policy Brief emerged from discussions in the Redevelopment Committee, California Council on Alcohol Policy, after the author introduced the topic of bar-restaurant morphing to the committee in November 2007. With encouragement from Joan Kiley, president of Cal Council, the committee pursued morphing issues until it disbanded in 2011. Members of the committee were Ed Kikumoto (chair), Rick McGaffigan, Michael Sparks, and the author. SS1 - 64 21 Figure 1 Bar-restaurant in Downtown San Luis Obispo Figure 2 Bar-restaurant in Downtown San Luis Obispo Figure 3 Police and security staff at bar-restaurant in Downtown San Luis Obispo Figure 4 Advertising for bar-restaurants in Downtown San Luis Obispo Figure 5 Advertising for bar-restaurants in Downtown San Luis Obispo Figure 6 Patrons crowd bar-restaurant in Downtown San Luis Obsipo i These comments and the images were presented by Chief Deborah Linden, San Luis Obispo Police Department, at the Alcohol Policy XV Conference held in Washington, DC on December 7, 2010: Session C-28 How California restaurants morph into bars and what the state ABC and cities are doing about it. SS1 - 65 22 Center For Applied Research Solutions 877-568-4227 carsinfo@cars-rp.org www.ca-cpi.org SS1 - 66 Department of Alcoholic Beverage Control COMMON ABC LICENSE TYPES AND THEIR BASIC PRIVILEGES State of California LICENSE TYPE DESCRIPTION 01 BEER MANUFACTURER - (Large Brewery) Authorizes the sale of beer to any person holding a license authorizing the sale of beer, and to consumers for consumption on or off the manufacturer’s licensed premises. Without any additional licenses, may sell beer and wine, regardless of source, to consumers for consumption at a bona fide public eating place on the manufacturer’s licensed premises or at a bona fide eating place contiguous to the manufacturer’s licensed premises. May conduct beer tastings under specified conditions (Section 23357.3). Minors are allowed on the premises. 02 WINEGROWER - (Winery) Authorizes the sale of wine and brandy to any person holding a license authorizing the sale of wine and brandy, and to consumers for consumption off the premises where sold. Authorizes the sale of all wines and brandies, regardless of source, to consumers for consumption on the premises in a bona fide eating place that is located on the licensed premises or on premises owned by the licensee that are contiguous to the licensed premises and operated by and for the licensee. May possess wine and brandy for use in the preparation of food and beverage to be consumed at the bona fide eating place. May conduct winetastings under prescribed conditions (Section 23356.1; Rule 53). Minors are allowed on the premises. 20 OFF SALE BEER & WINE - (Package Store) Authorizes the sale of beer and wine for consumption off the premises where sold. Minors are allowed on the premises. 21 OFF SALE GENERAL - (Package Store) Authorizes the sale of beer, wine and distilled spirits for consumption off the premises where sold. Minors are allowed on the premises. 23 SMALL BEER MANUFACTURER - (Brew Pub or Micro-brewery) Authorizes the same privileges and restrictions as a Type 01. A brewpub is typically a very small brewery with a restaurant. A micro-brewery is a small-scale brewery operation that typically is dedicated solely to the production of specialty beers, although some do have a restaurant or pub on their manufacturing plant. 40 ON SALE BEER - (Bar, Tavern) Authorizes the sale of beer for consumption on or off the premises where sold. No wine or distilled spirits may be on the premises. Full meals are not required; however, sandwiches or snacks must be available. Minors are allowed on the premises. 41 ON SALE BEER & WINE – EATING PLACE - (Restaurant) Authorizes the sale of beer and wine for consumption on or off the premises where sold. Distilled spirits may not be on the premises (except brandy, rum, or liqueurs for use solely for cooking purposes). Must operate and maintain the licensed premises as a bona fide eating place. Must maintain suitable kitchen facilities, and must make actual and substantial sales of meals for consumption on the premises. Minors are allowed on the premises. 42 ON SALE BEER & WINE – PUBLIC PREMISES - (Bar, Tavern) Authorizes the sale of beer and wine for consumption on or off the premises where sold. No distilled spirits may be on the premises. Minors are not allowed to enter and remain (see Section 25663.5 for exception, musicians). Food service is not required. 47 ON SALE GENERAL – EATING PLACE - (Restaurant) Authorizes the sale of beer, wine and distilled spirits for consumption on the licenses premises. Authorizes the sale of beer and wine for consumption off the licenses premises. Must operate and maintain the licensed premises as a bona fide eating place. Must maintain suitable kitchen facilities, and must make actual and substantial sales of meals for consumption on the premises. Minors are allowed on the premises. 48 ON SALE GENERAL – PUBLIC PREMISES - (Bar, Night Club) Authorizes the sale of beer, wine and distilled spirits for consumption on the premises where sold. Authorizes the sale of beer and wine for consumption off the premises where sold. Minors are not allowed to enter and remain (see Section 25663.5 for exception, musicians). Food service is not required. 49 ON SALE GENERAL – SEASONAL - Authorizes the same privileges and restrictions as provided for a Type 47 license except it is issued for a specific season. Inclusive dates of operation are listed on the license certificate. ABC-616 (09-11) Attachment 5 SS1 - 67 LICENSE TYPE DESCRIPTION 51 CLUB - Authorizes the sale of beer, wine and distilled spirits, to members and guests only, for consumption on the premises where sold. No off-sale privileges. Food service is not required. Minors are allowed on the premises. 52 VETERAN’S CLUB - Authorizes the sale of beer, wine and distilled spirits, to members and guests only, for consumption on the premises where sold. Authorizes the sale of beer and wine, to members and guest only, for consumption off the licensed premises. Food service is not required. Minors are allowed on the premises. 57 SPECIAL ON SALE GENERAL - Generally issued to certain organizations who cannot qualify for club licenses. Authorizes the sale of beer, wine and distilled spirits, to members and guests only, for consumption on the premises where sold. Authorizes the sale of beer and wine, to members and guests only, for consumption off the licensed premises. Food service is not required. Minors are allowed on the premises. 59 ON SALE BEER AND WINE – SEASONAL - Authorizes the same privileges as a Type 41. Issued for a specific season. Inclusive dates of operation are listed on the license certificate. 60 ON SALE BEER – SEASONAL - Authorizes the sale of beer only for consumption on or off the premises where sold. Issued for a specific season. Inclusive dates of operation are listed on the license certificate. Wine or distilled spirits may not be on the premises. Minors are allowed on the premises. 61 ON SALE BEER – PUBLIC PREMISES - (Bar, Tavern) Authorizes the sale of beer only for consumption on or off the licensed premises. Wine or distilled spirits may not be on the premises. Minors are not allowed to enter and remain (warning signs required). Food service is not required. 67 BED AND BREAKFAST INN - Authorizes the sale of wine purchased from a licensed winegrower or wine wholesaler only to registered guests of the establishment for consumption on the premises. No beer or distilled spirits may be on the premises. Wine shall not be given away to guests, but the price of the wine shall be included in the price of the overnight transient occupancy accommodation. Removal of wine from the grounds is not permitted. Minors are allowed on the premises. 70 ON SALE GENERAL – RESTRICTIVE SERVICE - Authorizes the sale or furnishing of beer, wine and distilled spirits for consumption on the premises to the establishment’s overnight transient occupancy guests or their invitees. This license is normally issued to “suite-type” hotels and motels, which exercise the license privileges for guests’ “complimentary” happy hour. Minors are allowed on the premises. 75 ON SALE GENERAL – BREWPUB - (Restaurant) Authorizes the sale of beer, wine and distilled spirits for consumption on a bona fide eating place plus a limited amount of brewing of beer. Also authorizes the sale of beer and wine only for consumption off the premises where sold. Minors are allowed on the premises. 80 BED AND BREAKFAST INN – GENERAL - Authorizes the sale of beer, wine and distilled spirits purchased from a licensed wholesaler or winegrower only to registered guests of the establishment for consumption on the premises. Alcoholic beverages shall not be given away to guests, but the price of the alcoholic beverage shall be included in the price of the overnight transient occupancy accommodation. Removal of alcoholic beverages from the grounds is not permitted. Minors are allowed on the premises. 86 INSTRUCTIONAL TASTING LICENSE–Issued to the holder of and premises of a Type 20 or Type 21 licensee, authorizes the tasting of alcoholic beverages as authorized to be sold from the off-sale premises, on a limited basis. Requires physical separation from the off-sale premises while tasting is taking place and generally requires the participation of a specifically-authorized manufacturer or wholesaler licensee. ABC-616 (09-11) Attachment 5 SS1 - 68 ABC-616 (09-11) SPECIAL EVENTS The Department also issues licenses and authorizations for the retail sale of beer, wine and distilled spirits on a temporary basis for special events. The most common are listed below. Other less common ones are found in Business and Professions Code Section 24045.2, et seq. SPECIAL DAILY BEER AND/OR WINE LICENSE - (Form ABC-221) Authorizes the sale of beer and/or wine for consumption on the premises where sold. No off-sale privileges. Minors are allowed on the premises. May be revoked summarily by the Department if, in the opinion of the Department and/or the local law enforcement agency, it is necessary to protect the safety, welfare, health, peace and morals of the people of the State. In some instances, the local ABC office may require the applicant to obtain prior written approval of the local law enforcement agency. Issued to non-profit organizations. (Rule 59, California Code of Regulations) DAILY ON SALE GENERAL LICENSE - (Form ABC-221) Authorizes the sale of beer, wine and distilled spirits for consumption on the premises where sold. No off-sale privileges. Minors are allowed on the premises. May be revoked summarily by the Department if, in the opinion of the Department and/or the local law enforcement agency, it is necessary to protect the safety, welfare, health, peace and morals of the people of the State. In some instances, the local ABC office may require the applicant to obtain prior written approval of the local law enforcement agency. Issued to political parties or affiliates supporting a candidate for public office or a ballot measure or charitable, civic, fraternal or religious organizations. (Section 24045.1 and Rule 59.5 California Code of Regulations) CATERING AUTHORIZATION - (Form ABC-218) Authorizes Type 47, 48, 51, 52, 57, 75 and 78 licensees (and catering businesses that qualify under Section 24045.12) to sell beer, wine and distilled spirits for consumption at conventions, sporting events, trade exhibits, picnics, social gatherings, or similar events. Type 47, 48 and 57 licensees may cater alcoholic beverages at any ABC-approved location in the State. Type 51 and 52 licensees may only cater alcoholic beverages at their licensed premises. All licensees wishing to cater alcoholic beverages must obtain prior written authorization from the Department for each event. At all approved events, the licensee may exercise only those privileges authorized by the licensee’s license and shall comply with all provisions of the ABC Act pertaining to the conduct of on-sale premises and violation of those provisions may be grounds for suspension or revocation of the licensee’s license or permit, or both, as though the violation occurred on the licensed premises. (Section 23399 and Rule 60.5 California Code of Regulations) EVENT AUTHORIZATION - (Form ABC-218) Authorizes Type 41, 42, 47, 48, 49, 57, 75 and 78 licensees to sell beer, wine and distilled spirits for consumption on property adjacent to the licensed premises and owned or under the control of the licensee. This property shall be secured and controlled by the licensee and not visible to the general public. The licensee shall obtain prior approval of the local law enforcement agency. At all approved events, the licensee may exercise only those privileges authorized by the licensee’s license and shall comply with all provisions of the ABC Act pertaining to the conduct of on-sale premises (including any license conditions) and violations of those provisions may be grounds for suspension or revocation of the licensee’s license or permit, or both, as though the violation occurred on the licensed premises. (Section 23399) WINE SALES EVENT PERMIT - (Form ABC-239) Authorizes Type 02 licensees to sell bottled wine produced by the winegrower for consumption off the premises where sold and only at fairs, festivals or cultural events sponsored by designated tax exempt organizations. The licensee must notify the city and/or county where the event is being held and obtain approval from ABC for each event (Form ABC-222). The licensee must also comply with all restrictions listed in Business and Professions Code Section 23399.6. Note: 1. “Minor” means any person under 21 years of age. 2. Consult Section 25663(b) regarding age of employees in off-sale premises; consult Sections 25663(a) and 25663.5 regarding age of employees in on-sale premises. 3. In certain situations, ABC may place reasonable conditions upon a license, such as restrictions as to hours of sale, employment of designated persons, display of signs, restrictions on entertainment or dancing, etc. If a license has been conditioned, it will be endorsed as such on the face of the license. (Conditional licenses, Sections 23800-23805.) 4. Licensees whose license allows minors on the premises may have a “house policy” restricting minors from entering certain areas of the premises or prohibiting minors in the premises during certain hours. 5. This handout contains only abbreviated information. Contact your local ABC office for full information before doing anything which may jeopardize your license. Also available from the ABC: Quick Summary of Selected ABC Laws (form ABC-608); Alcoholic Beverage Control Act (complete laws); Rules & Regulations; and P-90 (describes privileges of non-retail licenses). Attachment 5 SS1 - 69 Page intentionally left blank. SS1 - 70 Goodwin, Heather From: Grimes, Maeve Sent: Wednesday, February 06, 2013 4:21 PM To: Goodwin, Heather Subject: FW: another alcohol permit Please hold for this item on the April 2"d Agenda MAeve kenneay cgliimes City Clerk City Of San LUIS 0131SPO 990 Palm Street San Luis Obispo, CA 93401 phone.. (805) 781 -7102 email, mgrimesPslocity.org From: Carter, Andrew Sent: Thursday, January 31, 2013 8:03 AM To: Grimes, Maeve Cc: t.ichtig, Katie; Johnson, Derek Subject: i w: another alcohol permit Public record Andrew Carter Council Member City of San Luis Obispo AGENDA CORRESPONDENCE Dated �l131tem #-S. S I_ - - - -- Original Message---- - From: Karen Adler [fud e8805@charter.net] Sent: Wednesday, January 30, 2013 08:34 PM Pacific Standard Time To: Marx, Jan; Carpenter, Dan; Carter, Andrew; Smith, Kathy; Ashbaugh, John Subject: another alcohol permit Dear Mayor & City Council Members: First of all a BIG thank you for making Neighborhood Wellness one of the City's top goals for the next two years. We will work with you in helping to implement all the infrastructure that is needed to keep our neighborhoods enjoyable, pleasant, safe & vital! With that I would highly recommend that you do not approve a new alcohol related permit for a Wine Bar at 750 Higuera St. to serve after 11 pm. The downtown does NOT need another alcohol related establishment. We are becoming a city of bars, bars & more bars! This also creates late night problems for neighborhoods when these inebriated patrons spill out after these bars close. Alcohol & it's misuse is the major problem of the many infractions the City Police Dept. has to deal with on every weekend. Don't add to an already overburdened Police force with the addition of another late night drinking establishment! Thank you, Karen Corda Adler 1676 Fredericks St. SLO, CA 93405 Goodwin, Heather From: Schroeder, Sheryll Sent: Monday, August 19, 2013 1:57 PM To: Goodwin, Heather Subject: FW: Red File Request Attachments: Councilmemo 8- 20- 13.pdf Sheryll Schroeder Interim City Clerk City of San Luis Obispo (805) 781 -7102 From: Deborah Cash [ mailto:dcash(a?downtownsio.com] Sent: Monday, August 19, 2013 1:53 PM To: Schroeder, Sheryll Subject: Red File Request Sheryl], hello RECEIVED AUG 19 2013 AGENDA CORRESPONDENCE Date M/f tem #L. After receiving the staff report last Tuesday, our board and committees have had the chance to review and provide feedback. Attached please find a memo reflecting the Downtown Association position regarding the proposed moratorium on new alcohol outlets in the Downtown. If you can Red File this item to Council before tomorrow's meeting, I would greatly appreciate it. Let me know if you have any questions, Thank you Deborah Deborah Cash Executive Director SLO Downtown Association P O Box 1402 San Luis Obispo CA 93406 805 -541 -0286 dcashp_downtownslo.com 19 August 2013 RED FILE To: Mayor Jan Marx and City Council members From: Deborah Cash, Executive Director San Luis Obispo Downtown Association Re: Alcohol Outlet Moratorium and Annual Update on Deemed Approved Ordinance The Downtown Association Board of Directors is forwarding a reiteration of its position regarding the Council's consideration of an alcohol outlet moratorium in the Downtown area. In March, the Board issued a memorandum to Doug Davidson after Mr. Davidson's presentation of the item to the Board. That memo is attached and states that the Board would not approve an ordinance establishing a moratorium on new alcohol outlets in the Downtown. For one, because some of the Downtown Association's members are property owners, it would not be feasible for the organization to support regulations that limit the types of tenants property owners could lease or rent to. As well, it is the nature of the free marketplace that business sectors ebb and flow; even the best - intentioned legislation cannot anticipate the natural rhythm of business and can prove difficult to modify or remove once adopted. With regard to the annual review of the Deemed Approved Ordinance, the Downtown Association would like to provide highlights of the past year's efforts of the Food, Beverage and Service Committee (formerly Safe Night Life): The Committee, formed in September 2011, meets monthly with a core group of members (typically 8 — 10) with occasional "special" meetings to review membership drives, special activities and other topics outside standard discussion items such as providing services for "high activity" celebrations (most recently Cal Poly Graduation), member updates, police logs and developing a two -year work plan (attached). Achievements of the committee include (in part): • Working with SLO Safe Ride to provide transportation to late night users of Downtown Association • Working with alcohol outlet owners to ensure all employees are LEAD certified through ABC • Providing "peer advisory" service to members • Providing porta potties, clean up crews, extra trash pick up and security on high acitivity weekends • Inviting City Department representatives to attend meetings and give updates on related issues • Including objectives in the recently released Strategic Plan for further development of the entertainment district It is important to note that while the staff report indicates an increase in incidences, this increase is likely attributable to the increase in enforcement and not necessarily an increase in activity. As well, the report indicates no complaints were filed against alcohol outlet operators over the past year. The Downtown Association believes that in large part, the perception of a crisis is truly that — perception; the reality is that Downtown is a college town with a high level of activity but is not on the verge of ruination. In fact, opportunities abound for an evening economy that would offer more choices for people to enjoy the Downtown area well into the later hours. Many models exist of communities who've turned their problem areas into success stories. As an example, "..,in the city's downtown, sidewalk cafes sit in the shade of 19th century mansions. Designers have turned a long- abandoned shopping arcade into the Belgrade Design District where indie boutiques sell draped dresses and punk- inspired jewelry. On summer weekends, the streets of hipper neighborhoods are as full at 3 AM as at 8 PM. You might have to wait hours for a table at the waterfront restaurants, but never mind, the spicy Serbian wines served at the bars will keep you occupied." [Wall Street Journal, Travel Guide to Belgrade, Serbia, August 17, 2013] In other words, enjoying life at night is something people around the world love to do. The idea would be do look at how to cultivate such a scene and where problems exist, define those and how to best mitigate them —which is exactly what our efforts in both the Food, Beverage and Service Committee and our 2013 Strategic Business Plan are poised to do. The Board respectfully request that Council consider the possibilities and the work being done to move in a direction that will keep Downtown and our community vibrant, interesting and alive and not adopt an ordinance that could likely reverse the positive momentum we are currently enjoying. CC: SLO Downtown Association Board of Directors SLO Downtown Association Food, Beverage and Service Committee Katie Lichtig, City Manager Derek Johnson, Community Development Manager Doug Davidson, Deputy Director Community Development Attachments: 11 March 2013 Memo, "Moratorium on Alcohol Outlets" Food, Beverage and Services Committee Two Year Work Plan 2013 -15 11 March 2013 To: Doug Davidson, Deputy Community Development Director From: Deborah Cash, Executive Director San Luis Obispo Downtown Association Re: Moratorium on Alcohol Outlets The San Luis Obispo Downtown Association Board of Directors recently voted to not support a proposed moratorium on alcohol outlets. It is the position of the Board that the organization's charge does not include regulating the types of businesses and tenants who may choose to locate in Downtown. Further, from a historical perspective, business trends indicate that the products and services of one era may differ from consumer demands later on— particularly once a critical mass is achieved —outmoding the regulation. Finally, the efforts of the Downtown Association's Food, Beverage and Services Committee (formerly Safe Night Life) continue to grow and reduce impacts associated with alcohol outlet activity. Because it appears it is the problem behaviors associated with alcohol outlets and not the actual number of outlets, allowing this program to expand and work with operators to run safe and responsible establishments may be justification for foregoing yet another, perhaps unnecessary, regulation. Cc: SLO Downtown Association Board of Directors SLO Downtown Association Economic Activities Committee SLO Downtown Association Food, Beverage and Services Committee Kathy Smith, City Council Katie Lichtig, City Manager Derek Johnson, Community Development Director FOOD, BEVERAGE AND SERVICES COMMITTEE (Formerly Safe Night Life Committee) Two -Year Work Plan 2013 -2015 Mission Statement The Food, Beverage and Services Committee was formed to join together the owners and operators of businesses providing food and beverages to ensure the safety and well -being of patrons and the community and to responsibly promote the vitality of Downtown during the evening and late night hours. Goals • To reduce problems or the perception of problems associated with late night activity in the Downtown as identified in the Nightlife Public Safety Assessment Report by undertaking those recommendations identified as related to those establishments that sell or serve alcohol • To obtain LEAD training /certification by all establishment owners, operators, servers and staff To provide, through messaging, education to the general public— particularly the student population — regarding awareness of alcohol - related issues • To maintain close and regular communication with City of SLO departments including PD, Administration, Public Works and also City Council • To develop a solid organizational structure of regular meetings and follow an operating plan agreed upon by all parties • To include community input and feedback by inviting guests from all walks of the community including neighborhoods, university, Chamber of Commerce, and other civic and governmental agencies as appropriate to attend meetings Programs • One 86 – All 86 • Enjoy Downtown Responsibly • Porta potties • DT Cleaning • ABC LEAD Training • SLO Safe Ride • DT Lighting • Membership Drive • Peer Advisory NOTE: This committee's membership is primarily comprised of restaurant and bar owners in Downtown SLO, or anyone who holds a permit to sell alcohol. Other parties with affiliations such as SLO Safe Ride are also included if they choose to join. The committee meets the 2nd Tuesday of each month at 11 AM. A board member chairs and the Executive Director staffs the committee. Budget: Members pay dues to support the costs of the committee's activities including bringing in porta potties, hiring a cleaning crew, generating and distributing promotional materials, etc. AUG I I 2013 REC Ë.TVE t) Cc: Schroeder, Sh Max, Jan Sunday, August 18, 201-3 6:57 PM Subiect: Allan Cooper; Smith, Kathy; Ashbaugh, John; Carpenter, Dan; carlynpc@gmail.com; Christianson, Carlyn Lichtig, Katie; Schroeder, Sheryll RE: August 20,20L3: Study Session 1- Thank you for your email, Allan. By this response, I request the city clerk to post your message on the city website as agenda correspondence. Due to the Brown Act, Council can only respond to you individually regarding the content of your email. Allthe Best, Jan From: Sent: To: Jan Howell Max Mayor of San Luis Obispo (BOs) 781-7t20 or (BOs) 541-2716 AGENDA CORRESPONDENCE From: Allan Cooper [allancoope@gmail.com] Sent: Sunday, August 18, 2013 5:32 PM To: Max, Jan; Smith, Kathy; Ashbaugh, John; Carpenter, Dan; carlynpc@gmail.com; Christianson, Carlyn Subject: August 20,2O13: Study Session 1 Regardlng Study Sessíon 1: " TO REVIEW EFFECTIVENESS OF 2012 ALCOHOL OUTLET AMENDMENTS AND CONSIDERA MORATORIUM ON NEWALCOHOL OUTLETS IN THE DOT,I/NTOIFN" Deør Honorable Mayor and Council Members - ABC states lhst ulcohol oullets ín the Downlown Core are "ovet concenlraled". Yet lhe recent alcohol outlet umendments did not specíftcally address thß queslíon of overall concenlrulion. I'YHY??? Condilional use permits control anti-socíal behavior which may take place úI/ITHIN the alcohol oullel premíses but there is líltle cont¡ol over anti-socíøl behavior once lhe ínebrialed bar patron leaves the bør (or in most cases, "bats" as mosl palrons "bat hop'). Per uFrled" Witlman (is lhat REALLY hìs name???) Downtown San Luis Obispo needs to "encourøge sn active reslaurunt / níght lífe communig)"... BUT we already have one IN SPADES! Sløff stales lhat "use permit conditlons of approvøl ìnclude limits on hours, noise control, managq on premhes, securíty plan, alcohol semer training,food availsble at all limes, and olhets lo ensute thal lhe business is run in a manner ìntended lo minimìze adverse imprcts of alcohol related behaviors." The problem wìth lhese permìt condìtions of approvøl ß that noìse control is simply conJìned to lhe alcohol oallel premßes snd that alcohol semer training csnnol delect lhe delayed effecß of inebriulìon after lhe patron has lefl the alcohol oulleL Representatìves from S,O.D. attended lhe Adminßtrslive Review hearings for Eatz By Desîgn, Sídecar Restautant , Turncoat Wíne Company und C¡eeksíde Brewery. Slalf states lhal the recenl amendmenls províde a toolfor limìtìng alcohol servicefor resløuranlsandcanbeusedtos@lheestabIishmentofaddilionalbarsandlaverns.However, the four Administrative Hearings we attended DID NOT strongly limít or oulÌight ptohibít the establishmenl of addìtional bars,.A deemed øpproved ordínance stales thal new ouilets mast not rcsull in repeated nuìsance aclivities withín lhe oremises o¡ in close prcximitv of lhe premlses. Bul whul about nuisønce activÍtíes lhøl occur All/AYfrom the premíses (RQN...thìs is your opportunily lo speak up)??? Sløff slates "øs the stalßlÍcs show, the numbers (of police reports Downtown) have incressed in ull ureas. Thefocused Police Department efforls ønd proactive stunce on enforcemenl ate lhe primøry reasonsfor the inc¡eases." This ß simply NOT lrue...the Police Depørtment has been very proactive in the past in keeping accuÌale crime records for lhe Downtown Core 1 (check lhe histo¡ìcal crlme logs)! ! ! 1,600 Downtown ìncídenls over lhe past yeør ß 1,600 TOO MANY! ! ! Also, the City shoald compile the dollør costs Downtown businesses and the surruundíng neighborhoods bearfor mítigaling vundalßm over lhe posl yest Slaff sløtes that "ove¡ lhe last four years, lhe Police Deparlment has "condilionally protesled' 12 lo 20 lícenses annaally\ However, how many of these licenses where aclually pulled? Sîaff states lhal "the¡e are no data o¡ anolysß currently availuble correlaling addífional licenses issued downlov'n over the lssl year to íncreøsed emelgency cølß, properly damage, crÍmìnal or nußance behaviar ìn the prortmíg of a new alcohol eslublíshment, or directly attribulable to lhem-"Because of thß "Iack" of dalu, why are we to conslrue lhal the cause and effect correlalìon between additional alcohol lícenses and the íncrease ín our Downlown Core of "incidences" does NOT exisl??? IÍ staff wishes NOT lo see this correlalion, all they need lo do ß NOT tlo lheìr homework? On lhís poìnt, stalf slales that "ll ís not known if the City has a hígher incident ratìo lhan other comparable cítes, sìnce the ASIPS/GIS sîudy did nol include sach an ønalysß." llhy woaldn'l lhís be a VERY importantfrndíng? Støtf ídenfìJies only one goalfor the Dowtown Core: that "of mùntaíning lhe downtown as the socíal und entertainment centerfor vìsìtors and ¡esídents alíke". llhat about all lhe olher goals relsled to the Downtown Co¡e such as maintainìng lts statas us t mtjor employment cenler, retaíl shopping centu und an envi¡onment suìtablefor residenlial living? We URGE the Council to direcl slaff to develop s uPubllc Convenlence ond Necessily" (PCN) policy as staff recommends. But more ìmportanlly we urge the Council lo enøct a temporary (45 day to 2-year) em¿tgency o¡dinance lhst will achíeve t morato¡íum on grantìng licmses tofuture ølcohol oulleß. fVhile thís morato¡ium is in effect stalf and Councíl will put in place øn "Over Concenlration" law and lheLand Use and Circulatlon Elemenl (LUCE) Update Committee wíll be able to sddress the long range manugemenl of alcohol outlels in lhe Downtown. Fínally, we utge Council to commll an addìtìonal .5 FTE or more ln iß staffing allocation as lhis would clearly be needed to undertake this efforl Thank you fot yout time and consideratíon on lhis very ímportunl matter, Alhn Cooper, Chair Save Our Downtown 2 AUG 19 209 Schroeder, She From: Marx, Jan Sent: Sunday, August 18, 2013 7:14 AM To: Todd Katz; Schroeder, Sheryll Cc: Smith, Kathy; Christianson, Carlyn; Carpenter, Dan; Ashbaugh, John Subject: RE: regarding proposed moratorium on new alcohol outlets in the downtown Thank you for your message on this important issue. I am including our city clerk in this response, so that she can post your email on our city website as Agenda Correspondence for the August 20, 2013 meeting. All the Best, Jan Howell Marx AGENDA Mayor of San Luis Obispo (805) 781 -7120 or (805) 541 -2716 From: Todd Katz [zososlo @gmail.com] Sent: Saturday, August 17, 2013 4:45 PM To: Marx, Jan Cc: Smith, Kathy; Christianson, Carlyn; Carpenter, Dan; Ashbaugh, John Subject: regarding proposed moratorium on new alcohol outlets in the downtown Dear Madam Mayor Marx and Honorable Council Members: CORRESPONDENCE Date %Il item# r5, � This email letter is in regard to the proposed moratorium on new alcohol outlets in the downtown. I am writing this on behalf of myself and my wife, Jeanne Dale Katz. In our five years in San Luis Obispo we have been surprised by the vociferous antagonism to downtown restaurants that make ends meet by serving alcoholic beverages. It's a surprise, given the dependence of the city on tax revenue from downtown businesses and the dependence of the county on the wine industry. Having known many downtowns in our time, we feel that our downtown is lively and interesting (a plus) but that it is by no means dangerous or raucous, especially considering our area's large college -age population. It would be easier to understand the antagonism if there was a large religious community that was simply opposed to the sale and consumption of alcoholic beverages. However, instead of 1,000 people pressing an issue forward, this seems more like ten people pressing an issue forward 100 times each. While there are, no doubt, citizens who do not frequent downtown restaurants who if surveyed would agree that a moratorium is an OK idea, we wonder if they would persist in that position if they were asked to pay higher taxes to replace future revenue that will be lost if a moratorium were in place and promising new businesses unable to get started? And we have serious concerns that a moratorium -- if passed -- would immediately lead to an effort to significantly reduce the number of businesses currently serving food and drink in the downtown area and to curtail their hours. Another concern is that instituting a moratorium will have a deforming effect on the economics of buying and selling downtown restaurants. Obviously, the value of existing establishments will increase, if no new permits can be obtained. All the more so if an establishment cannot be moved or their license expanded. Someone will be making money, but it won't be the city or county governments. And we doubt that the quality of the establishments' food and diversity of their menus will improve if the direct or indirect cost of beer, wine and liquor licensing increases in unpredictable ways. Of course, we understand that establishments serving alcohol put a burden on the city and our fine police force. However, reducing nighttime activity in downtown -- if it were to occur - -could actually have undesired effects throughout the area. Some of these cannot be foreseen. However, there would likely be more young people driving after drinking. Those concerned about crime should ask themselves if it is easier to prevent crime in a well- defined, well - lit, well - policed area or crime that occurs throughout the city and into the unincorporated areas of the county. The bottom line for us is that we elect a mayor and city council to make informed decisions directly and through their appointed boards and commissions. Deciding the merits of an application to serve alcoholic beverages makes all the sense in the world; instituting an artificial moratorium to appease a determined interest group -- well- intended as they may be -- is bad policy and bad precedent. Sincerely, Todd & Jeanne Dale Katz 3478 Gregory Court San Luis Obispo AGENDA CORRESPONDENCE � L° ' '_ Itgm#_.L S I Schroeder, Sheryll Date From: Ashbaugh, John Sent: Tuesday, August 20, 2013 10:29 AM To: Lichtig, Katie Cc: Schroeder, Sheryll; Johnson, Derek Subject: FW: Alcohol Moratorium fyi John B. Ashbaugh San Luis Obispo City Council RECEIVED AUG 20 2013 SLO CITY - - - -- Original Message---- - From: rschmidt(,rain.org [rschmidt(cbrain.org] Sent: Monday, August 19, 2013 12:23 PM Pacific Standard Time To: Marx, Jan; dcarpen(&slocity.org; Ashbaugh, John; Smith, Kathy; Christianson, Carlyn Subject: Alcohol Moratorium Re: SS — Alcohol Dear Council Members: It's time for a moratorium. You need to stop issuing alcohol- dispensing permits downtown once and for all. It's time for a moratorium. Just say "No!" You serve the residents of this city, not just those who want to profiteer off us by getting their customers drunk on overpriced juice, then turning them loose on the rest of us. Of course, your own city administration is another profiteer, since they see this proliferation of juice - sellers as an opportunity to profit off sales tax. If it is indeed the city's goal "of maintaining the downtown as the social and entertainment center for visitors and residents alike," you've flunked. I don't go downtown much any more, and I never venture below Palm Street after dark. Why? I feel intimidated and endangered by the drunken punks, male and female, who roam the streets downtown at night. It's a very unpleasant and unsafe place to be, and thus I no longer patronize any of the entertainment or restaurant spots there in non - daylight hours (and extremely rarely in daylight hours, either). Furthermore, downtown is just plain tacky with all the crappy greasy restaurants and bars that make it what it is today. Nobody needs to go there. (Went down one weekend recently with relatives who'd dropped by; they picked a trendy - looking not - too- cheapy restaurant from the street, walked in, went "Oh, no!" because of the stale grease smell, and walked back out. I'd tried to persuade them not to go downtown to eat, but being tourists they'd heard soo much about beautiful downtown SLO, they insisted; they weren't impressed.) As for staff's claim "incidents" are well - controlled, this is nonsense. I live a mile from downtown, and after the bars close, we hear the drunks parading away from downtown, and typically have several serious vandalism incidents ($thousands of $$$) each year on our street- parked cars on the drunk nights (Thurs. through Sat.). For your ivory tower planning staff to suggest things are under control shows what happens when you staff the place with clueless carpetbaggers. In discussing one vandalism incident with the police officer who responded, he was really upset at conditions in SLO. To protect his identity, I'll not be too specific, but he'd come here from a not -well- regarded place to our south where poverty, gangs, violence, graffiti and vandalism are a way of life, but he said he'd never seen anything as prevalent and dreadful as the level of wanton vandalism here. He attributed it to drunks wandering the streets. So, enact that moratorium. NOW! Richard Schmidt