ITEM 7-A
Council Mtg: June 2, 1992
TO: Mayor and City Council
FROM: City Staff
SUBJECT: Appeal of a Planning Commission Approval of Conditional
Use Permit 91-041 to allow an upgrade from an existing
Type 20, Off-Sale Beer and Wine alcohol license to a
Type 21, Off-Sale General alcohol license for an
existing retail wine sales establishment.
Address: 625 Montana Avenue
Applicant: Murray Weber, Montana Wine Company
Appellant: Kelly Olsen
INTRODUCTION
This is an appeal of a Planning Commission approval of
Conditional Use Permit 91-041 on March 18, 1992 to allow an
upgrade from an existing Type 20, Off-Sale Beer and Wine alcohol
license to a Type 21, Off-Sale General alcohol license for the
Montana Wine Company, an existing retail wine sales
establishment.
This report recommends that the City Council approve the appeal
and deny Conditional Use Permit 91-041 to allow the upgrade from
a Type 20 to a Type 21, Off-Sale General alcohol license for
Montana Wine Company.
BACKGROUND
The Planning Commission approved CUP 546 on November 2, 1988 to
permit operation of a 2,600 square foot retail wine shop and
bakery with an off-sale beer and wine alcohol license (Attachment
G). Odeon Bakery, under a separate business license, occupies
approximately 775 square feet of the premises. The City Council
approved CUP 90-074 on appeal on March 12, 1991 to allow wine
tasting and wine tasting classes in conjunction with retail wine
sales on-site (Attachment H). As part of the wine tasting CUP,
the Council also approved a 1,200 square foot expansion into the
adjacent retail space on March 12, 1991. The Type 40, On-Sale
Beer and Wine alcohol license is pending with the ABC. ABC staff
has stated that a separate ABC license to permit wine tasting
on-site does not yet exist. Approval of this license (Type 40)
allows on-site consumption rights for the property.
The Planning Commission approved CUP 91-041 with a vote of 4 to 2
on March 18, 1992 to allow the upgrade of a Type 20, Off-Sale
Beer and Wine alcohol license to a Type 21, Off-Sale General
alcohol license for the Montana Wine Company (Attachment B).
The applicant is pursuing an off-sale general alcohol license as
a means to avoid complying with a state law requiring that 50% of
all retail sales be from non-alcoholic items for off-sale beer
and wine alcohol outlets in Los Angeles County. Formal charges
are pending with the State Department of Alcohol Beverage Control
(ABC) regarding non-compliance with this state law (Attachment C,
G & H). An April 7, 1992 hearing with the State Office of
Administrative Hearings was continued at the applicant's request.
According to ABC staff the establishment must be brought into
compliance with the 50% non-alcoholic sales requirement or face
revocation of the existing off-sale beer and wine license. While
ABC staff could not divulge details of the case, they indicated
that suspension of the existing off-sale beer and wine alcohol
license and payment of fines appears likely. The ABC is required
to inform the applicant that they have the option to apply for
the Type 21, Off-Sale General alcohol license as an option to
compliance with the state statute. The charges against the
applicant will not be dropped by the ABC regardless of whether
the CUP to allow the alcohol license upgrade is obtained
(Attachment C).
Prior to the application for a Type 21 license, ABC records show
two violations for the premises consisting of sales to a minor (a
Santa Monica Police Department employee) and failure to furnish
books and records to the state agency (Attachment C, G & H). The
applicant paid a $1,500 fine in-lieu of a 10-day suspension of
the alcohol license for the violation for sales to a minor. To
staff's knowledge, the books and records charge has not yet been
resolved.
APPEAL ISSUES
The appellant objects to the upgrading of the existing Type 20,
Off-Sale Beer and Wine alcohol license to a Type 21, Off-Sale
General, alcohol license because, "...the city did not want
another 'liquor store' so close to a school and residences";
staff proposed denying the CUP; a store employee had "...supplied
false information to the City Council", (Attachment J); and,
consumption (of alcohol) had been observed on-site which violated
the conditions of the Conditional Use Permit (Attachment A & I).
The site is located in the C2 (Neighborhood Commercial) District
with a surrounding residential neighborhood. A concern expressed
by both the Planning Commission and City Council is the proximity
of the establishment to several schools within the vicinity and
to the surrounding residential neighborhood. Staff is also
concerned about this proximity and the potential for the outlet
to become a full liquor store. Police Department staff has
indicated that liquor stores are often "problem" locations
associated with an increase in criminal activity including public
intoxication and driving under the influence, and the source of
noise, parking, and traffic complaints by neighboring residents
(Attachment I).
The Planning Commission, in response to the concern noted in the
paragraph above, included conditions proposed by the applicant
which limit storage and display of spirits to no more than 10% of
the overall display and storage area, establish a fixed location
for display of spirits, stipulate that sales of spirits may not
exceed 10% of gross sales, and require only full-size (no
convenience-size) bottles of liquor or spirits be offered for
sale (see pages 5 and 6, Attachment C). The conditions also
stipulate that the primary use of the premises is to remain a
retail wine sales establishment. Staff is concerned that the
enforcement of these conditions may be problematic.
The appellant states that "...an employee of the store supplied
false information to the City Council...with the knowledge of the
owner as to this false testimony." (Attachment A). This incident
occurred at the City Council hearing of March 12, 1991 regarding
an appeal of the pending Type 40 On-Sale Beer and Wine alcohol
license. The City Attorney indicated to the Mayor and City
Council that a statement by an employee of the establishment, in
which he stated to the Council that charges for sale to a minor
were dropped after he informed the Judge that he knew the Police
Officer, were untrue (Attachment J). The City Attorney also
stated that the employee "...was convicted by plea of a violation
of furnishing alcohol to a minor." The Police Officer present at
the time the violation took place also stated that he did not
know this employee personally (Attachment I). Finally, Police
Department staff observed consumption of wine on the site at the
adjacent bakery, in violation of the approved CUP.
SUMMARY AND CONCLUSION
Based on concerns of the potential for increased crime and
problems for the adjacent residential neighborhood and schools,
staff believes that the proposed alcohol outlet upgrade to allow
sales of spirits could have a negative impact on the community.
Staff feels that the granting of a Conditional Use Permit to
allow a General Off-Sale alcohol license is not an appropriate
alternative for the community. Addition of the Off-Sale General
alcohol license has the potential to add increase traffic, noise,
and crime problems to the surrounding residential neighborhood
and is not in the best interest of the community.
Consistent with the original recommendation to the Planning
Commission, staff recommends that the Council approve the appeal
and deny Conditional Use Permit 91-041 to allow an upgrade of a
Type 20, Off-Sale Beer and Wine alcohol license to a Type 21,
Off-Sale General alcohol license for the Montana Wine Company.
BUDGET/FINANCIAL IMPACT
The recommendation presented in this report does not have any
budget or fiscal impact.
REQUIRED NOTIFICATION
Pursuant to Municipal Code Section 9131.5, notice of the City
Council meeting was mailed to all owners and residential and
commercial tenants of property located within a 500 foot radius
of the project at least ten consecutive calendar days prior to
the City Council meeting. A copy of the notice is contained in
Attachment D.
RECOMMENDATION
It is respectfully recommended that the Council approve the
appeal and deny Conditional Use Permit 91-041 to allow an upgrade
from an existing Type 20, Off-Sale Beer and Wine, alcohol license
to a Type 21, Off-Sale General, alcohol license for the Montana
Wine Company. If the Council does approve the appeal, the
following are suggested findings to deny the CUP. If the Council
denies the appeal (approves the CUP), the Planning Commission's
findings and conditions should be adopted by the City Council.
CONDITIONAL USE PERMIT FINDINGS
1. The proposed use is one conditionally permitted within the
subject district and complies with all of the applicable
provisions of the "City of Santa Monica Comprehensive Land
Use and Zoning Ordinance", in that the proposal to upgrade
the existing Type 20, Off-Sale Beer and Wine, alcohol
license to a Type 21, Off-Sale General, alcohol license is
a conditionally permitted use in the C2 (Neighborhood
Commercial) District.
2. The proposed use would impair the integrity and character
of the district in which it is to be established or lo-
cated, in that the applicant is not in compliance with
state law for Type 20 alcohol outlets approved in Los An-
geles County since 1985 requiring that 50% of all retail
sales be from non-alcoholic products, that two ABC viola-
tion have occurred for the premises consisting of sales to
a minor and failure to provide books and receipts to the
ABC and in that the Santa Monica Police Department has
observed patrons consuming wine on-site at the adjacent
establishment in violation of Conditional Use Permit con-
ditions and in that conversion to an off-site general
licens, allowing the sale of spirits, may lead to greater
impact on Police Department enforcement resources, based
on experience with other such outlets in the City, and in
that the site is in close proximity to a school.
3. The proposed use would not be compatible with existing and
permissible land uses within the district and the general
area in which the proposed use is to be located, in that
although the existing retail wine sales establishment is a
permitted use in the C2 district and the proposal for an
alcohol outlet upgrade to a Type 21 alcohol license is a
conditionally permitted use, establishment of such use may
lead to an adverse impact on Police enforcement resources,
which has been the case at other liquor store sites in the
City.
4. The proposed use is not consistent with the goals, objec-
tives, and policies of the General Plan, in that the ap-
plicant is not in compliance with state law for Type 20
alcohol outlets approved in Los Angeles County since 1985
requiring that 50% of all retail sales be from non-
alcoholic products, that two ABC violations have occurred
for the premises consisting of sales to a minor and
failure to provide books and receipts to the ABC and in
that the Santa Monica Police Department has observed
patrons consuming wine purchased at the wine store on-site
at the adjacent establishment in violation of Conditional
Use Permit conditions, and in that conversion to an off-
site general license, allowing the sale of spirits, may
lead to greater impact on Police Department enforcement
resources, based on experience with other such outlets in
the City, and in that the site is in close proximity to a
school.
5. The proposed use would be detrimental to the public inter-
est, health, safety, convenience, or general welfare, in
that the applicant is not in compliance with state law for
Type 20 alcohol outlets approved in Los Angeles County
since 1985 requiring that 50% of all retail sales be from
non-alcoholic products, that two ABC violations have oc-
curred for the premises consisting of sales to a minor and
failure to provide books and receipts to the ABC and in
that the Santa Monica Police Department has observed
patrons consuming wine purchased at the wine store on-site
at the adjacent establishment in violation of Conditional
Use Permit conditions, and in that conversion to an off-
site general license, allowing the sale of spirits, may
lead to greater impact on Police Department enforcement
resources, based on experience with other such outlets in
the City, and in that the site is in close proximity to a
school.
6. The proposed use will not result in an overconcentration
of such uses in the immediate vicinity, in that the pro-
posal is for an existing alcohol outlet for retail sales
of wine and in that there are two other alcohol outlet
within a 500' radius of the site.
ALCOHOL OUTLET FINDINGS
1. The proposed use and location are not in accordance with
good zoning practice, in the public interest, and
necessary that substantial justice be done in that the
applicant is not in compliance with state law for Type 20
alcohol outlets approved in Los Angeles County since 1985
requiring that 50% of all retail sales be from
non-alcoholic products, that two ABC violations have
occurred for the premises consisting of sales to a minor
and failure to provide books and receipts to the ABC and
in that the Santa Monica Police Department has observed
patrons consuming wine purchased at the wine store on-site
at the adjacent establishment in violation of Conditional
Use Permit conditions, and in that conversion to an
off-site general license, allowing the sale of spirits,
may lead to greater impact on Police Department
enforcement resources, based on experience with other such
outlets in the City, and in that the site is in close
proximity to a school.
2. The proposed use will adversely affect the welfare of
neighborhood residents in a significant manner in that in
that conversion to an off-site general license, allowing
the sale of spirits, may lead to greater impact on Police
Department enforcement resources, based on experience with
other such outlets in the City, and in that the site is in
close proximity to a school.
3. The proposed use will detrimentally affect nearby
neighborhoods considering the distance of the alcohol
outlet to residential buildings, churches, schools,
hospitals, playgrounds, parks, and other existing alcohol
outlets in that there is one school in close proximity to
the site and one church located just outside of the 500'
site radius.
4. The proposed use is not compatible with existing and
potential uses within the general area in that the
proposal is for an upgrade to a Type 21, Off-Sale General,
alcohol license permitting the off-sale of distilled
spirits with the potential for an adverse impact on Police
enforcement resources, which has been the case at other
liquor store sites in the City, and in that a school and a
church exist within general proximity to the site.
5. Traffic and parking congestion may result from the
proposed use in that the proposal for an upgrade to a Type
21, Off-Sale General, alcohol license represents an
intensification of use and and the sale of distilled
spirits would potentially contribute to an increase of
traffic, parking, noise, drunk-driving and crime problems.
6. The public health, safety, and general welfare are not
protected in that the proposal for an upgrade to a Type
21, Off-Sale General, alcohol license represents an
intensification of use and and the sale of distilled
spirits would potentially contribute to an increase of
traffic, parking, noise, drunk-driving and crime problems.
7. Harm to adjacent properties may result in that the
proposal for an upgrade to a Type 21, Off-Sale General,
alcohol license represents an intensification of use and
and the sale of distilled spirits would potentially
contribute to an increase of traffic, parking, noise,
drunk-driving and crime problems.
8. The proposed use is inconsistent with the objectives of
the General Plan in that the proposal for an upgrade to a
Type 21, Off-Sale General, alcohol license represents an
intensification of use and and the sale of distilled
spirits would potentially contribute to an increase of
traffic, parking, noise, drunk-driving and crime problems.
ATTACHMENTS
A. Appeal form dated 3/13/92.
B. Statement of Official Action dated 3/18/92.
C. Staff Memorandum to Planning Commission dated 3/4/92.
D. Notice of Public Hearing dated 5/12/92.
E. Accusation Under Alcoholic Beverage Control Act and State
Constitution, Montana Wine Company, dated 8/11/91.
F. Notice of Hearing on Accusation, Montana Wine Company,
dated 2/10/92.
G. Statement of Official Action dated 11/2/88.
H. Statement of Official Action dated 3/12/91.
I. Declaration of Larry Horn dated 3/18/92.
Prepared by: D. Kenyon Webster, Planning Manager
Susan White, Assistant Planner
Planning Division
Land Use and Transportation Management Department