Santa Monica, California
Planning Commission Mtg: March 1, 1995
TO: The Honorable Planning Commission
FROM: Planning Staff
SUBJECT: Consideration of Setting Revocation Hearing for
Conditional Use Permit 546 and Conditional Use Permit
90-074
Address: 625 Montana Avenue
Epicurus
INTRODUCTION
On January 24, 1995, the City received a complaint regarding the
right to sell alcohol for Epicurus at 625 Montana Avenue. The
Municipal Code section which discusses alcohol outlets, Part
9.04.10.18.020, requires a new Conditional Use Permit for
existing premises where operations have been discontinued for a
period over one year. The complaint averred that Epicurus did
not begin operation of its business prior to expiration of
previously approved conditional use permits. At the time of the
complaint, a Zoning Inspector inspected the site and also found
some evidence consistent with a finding that operations had not
in fact resumed. Staff feels that based on the complaint filed,
and the Zoning Inspector's report, there is threshold information
warranting consideration of whether a revocation hearing should
be scheduled.
Part 9.04.2012.070 (SMCC) gives authority to the Planning
Commission to revoke any approved Conditional Use Permit if a
revocation hearing is conducted which is noticed with a statement
of the specific reasons revocation is being considered. After
the hearing, a Conditional use Permit may be revoked by the
Planning Commission if any one of the following findings is made:
1) That the Conditional Use Permit was obtained by
misrepresentation or fraud;
2) That the use for which the Conditional Use Permit was
granted has ceased or has been suspended for six or
more consecutive months; or
3) That the conditions of the permit have not been met, or
the permit granted is being or has recently been
exercised contrary to the terms of the approval or in
violation of a specific statute, ordinance, law or
regulation.
In the case of alcohol uses, item #2 is superceded by Part
9.04.10.18.020, which allows alcohol outlets to resume operation
without obtaining a new CUP if the previous business has been
closed for less than one year.
BACKGROUND
The previous tenant at this location, The Montana Wine Company,
went out of business on January 4, 1994. A Conditional Use
Permit (CUP 546) approved by the Planning Commission in 1988
permitted the issuance of a Type-20 (Off-Sale Beer & Wine)
alcohol license and a Conditional Use Permit (CUP 90-074) was
approved by the City Council on appeal in March, 1991 to allow
wine-tasting and wine tasting classes on-site in conjunction with
a Type-42 (On-Sale Beer and Wine for Public Premises) alcohol
license.
On October 11, 1994, a request for Conditional Use Permit 94-008
to allow a change from a Type-20 (Off-Sale Beer & Wine) alcohol
license to a Type-21 (off-Sale General) alcohol license and an
amendment to CUP 90-074 which would relocate the wine tasting
from the rear of the first floor to the loft area on the second
floor was denied by the City Council on appeal. The applicant,
Epicurus, then obtained approvals from the state Alcoholic
Beverage Control (ABC) under the previous CUP approvals.
In order to continue the rights grandparented under the previous
CUP approvals, Epicurus had to begin operation of the store by
January 4, 1995. A member of the public, Stephanie Barbanell,
who was also one of the appellants of the most recent conditional
use permit request, has requested that the Planning Commission
consider a revocation hearing to revoke the conditional use
permits. Ms. Barbanell states on her complaint, regarding a
message left with the City on January 12, 1995, "that there
appeared to be no business in operation , i.e. no winetasting and
no stocked shelves (no shelves), [an] empty store and that a
banner appeared on the storefront declaring "Epicurus", the
store's name, would have its grand opening, February 5, 1995"
(Attachment A).
Ms. Barbanell states in a letter to staff dated February 22, 1995
(Attachment G) and expressed in a previous complaints dated
November 4, 1994 that the existing CUPs were never in compliance
and therefore are invalid. Ms. Barbanell contends that CUP 546
has language which inaccurately describes the premises granted
the Type-20 alcohol license as "a bakery/gourmet winestore" in
Suites A & B. She claims that the lack of correction to the
language of the CUP to accurately reflect only Suite B
invalidates the approval. However, staff has consistently
maintained that reduction in size does not invalidate the rights
of a CUP. Ms. Barbanell also states that because the previous
tenant did not meet the conditions of the CUPs, regarding
installation of a bathroom and a permanent barrier for the wine
tasting, that these CUPs are automatically rendered void.
However, a Conditional Use Permit does not automatically
terminate without revocation proceedings. The previous operator
went out of business and no revocation proceedings were initiated
prior to that time, and therefore this contention is without
merit.
The Zoning Inspector states in his memo dated February 1, (see
Attachment C), that on January 18, 1995, he observed that "though
there was a sign on the door which declared the wine store to be
"OPEN", there was no merchandise visible inside." He also states
that he "observed two people seated in the rear of the store
apparently taking a break from work." When the inspector
returned on January 19, 1995, he observed three people doing
tenant improvement work on the building and a table with about
two dozen wine bottles for sale. He did not observe any
customers and no one appeared to him to be a sales clerk.
Since the complaint was filed, the owner of Epicurus has provided
additional information (Attachment F), to support his position
that alcohol sales did occur as early as January 4, 1995. The
ABC granted a temporary Type-20 alcohol license to the applicant
on December 28, 1994 and a temporary Type-42 alcohol license on
January 4, 1995. The applicant obtained a City business license
on December 22, 1994 and a building permit on December 27, 1994.
The tenant improvement work was finaled by the Building & Safety
Division on January 4, 1995. The tenant improvement work
included construction of a barrier for the wine tasting area,
installation of a toilet in the loft area and lath and drywall
work. The painting of the interior, work which does not require
a permit, was completed February 1, 1995.
Since there is some evidence that operations may have been
discontinued for over one year, Planning staff has brought this
matter to the Commission to determine whether a revocation
hearing should be scheduled. It is not necessary for the
Planning Commission to resolve any factual disputes at this time.
Rather, the decision is whether there is sufficient reason to
schedule a revocation hearing at which such issues may be
resolved. The issue may be one of first impression for the
Commission.
The Zoning Ordinance grants the Commission the authority to
schedule a revocation hearing, and sets forth the circumstances
under which the permit may be revoked, but does not specify the
threshold showing necessary to schedule the hearing. This is a
decision which the Commission should make, and which should be
uniformly applied in the future. The Commission could decide
that in any case where there is some evidence to support
revocation that a hearing will be scheduled. Alternatively, the
Commission could determine that a hearing will be scheduled only
when it appears more likely than not that grounds for revocation
are present. There are probably other "thresholds" in between
these two extremes which would also be acceptable.
An additional issue for the Commission is the question of what
constitutes sufficient "operations" so as to prevent a
Conditional use Permit from expiring from nonuse. This issue may
not need to be determined at this juncture, but could be resolved
in the context of the revocation hearing should one be scheduled.
At a minimum, it would appear that sufficient operations must
include the use for which the permit was granted. In other
words, in the case of an alcohol outlet CUP, it would not appear
to be sufficient to have had a store open if no alcohol was
available for sale.
RECOMMENDATION
Staff recommends that the Planning Commission evaluate the
information submitted by the complainant and the applicant to
determine if scheduling a revocation hearing is appropriate.
Prepared by: Susan Healy Keene, Assistant Planner
D. Kenyon Webster, Planning Manager
ATTACHMENTS:
A. Complaint/request for Revocation of CUP 546 and CUP 90-074
from Stephanie Barbanell to Suzanne Frick dated January 24,
1995.
B. Letter in response to complaint from Robert Picone,
Epicurus, to Kenyon Webster dated January 29, 1995
C. Memo from Frank Williams, Zoning Inspector, to Suzanne Frick
dated February 1, 1995
D. Letter from Stephanie Barbanell to staff dated February 2,
1995
E. Letter from Kenyon Webster to Stephanie Barbanell dated
February 10, 1995
F. Submittal of Robert Picone, Epicurus, regarding verification
of opening date
G. Letter from Stephanie Barbanell to staff dated February 22,
1995