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DISCUSSION ON THE FRAMEWORK AND BASIC POLICY OF A FORTHCOMING ALCOHOL ORDINANCE
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RECOMMENDATION
Staff recommends that the Planning Commission receive the presentation and continue to offer guidance on the development of an alcohol ordinance.
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Summary
The Planning Commission and staff have determined that the City would be well served by an alcohol ordinance that provides clear policy for the consideration of permits related to alcohol sales. Staff received direction from the Planning Commission and now recommends a framework for an alcohol ordinance.
DISCUSSION
Background
On April 9, 2015, the Planning Commission received a presentation from staff and had its first discussion regarding the contents of an alcohol ordinance. The Planning Commission offered many suggestions regarding alcohol-related issues and expectations for a future ordinance.
Present Situation
Based on the input from the Planning Commission and general best practices, staff recommends that the City of Stockton proceed with developing an alcohol ordinance based on alcohol ordinances currently in use by the cities of San Bernardino and Oakland.
In 1993, City of Oakland adopted an Alcohol Ordinance which was immediately challenged by the alcohol industry. In 1997, after a lengthy court battle, the California Court of Appeal upheld the ordinance. Since that time, the City of Oakland has continued to make revisions to the ordinance as well as the adoption of related policies. In 2010, the City of San Bernardino adopted an ordinance which was modeled after the City of Oakland Ordinance (Attachment A - San Bernardino Alcohol Ordinance - Codified Version, Attachment B - San Bernardino Alcohol Ordinance - City Council Form).
Both city ordinances use a “deemed-approved” approach to regulating alcohol sales which regulates both existing and future alcohol sales outlets. This approach has proven effective in reducing existing over-concentration of alcohol sales outlets, which is common to many cities.
City of San Bernardino Ordinance
The San Bernardino ordinance establishes two distinct regulatory processes. The first addresses new alcohol sales outlets and the second addresses established, deemed-approved outlets.
The San Bernardino ordinance provides a distinct regulatory structure for new alcohol sales outlets that provides criteria for new outlets and separate processes for resolving non-compliance. The criteria includes locational restrictions, requiring a separation of 500 feet from schools, parks, places of worship/religious institutions, hospitals, alcohol or drug abuse recovery or treatment facilities, and social service offices. Larger facilities (over 10,000 square feet), such as grocery stores, are exempt from the separation requirements. The ordinance also includes a more comprehensive list of other operational and locational restrictions.
Additionally, the ordinance lists Conditions of Approval that may be applied to a Use Permit. The list is not exclusive and other project-specific Conditions may still be added. These Conditions address things like single-sales, alcohol content, malt beverage products, minimum sizes, video/arcade games, signs, the sale of drug paraphernalia, loitering, security cameras/guards, and similar considerations that may be imposed on a case-by-case basis. Finally, the ordinance establishes an Administrative Hearing Officer position to investigate non-compliance and to assess penalties and impose new Conditions to correct problems. The Administrative Hearing Officer may also refer a non-compliant operation to the Planning Commission for revocation.
The San Bernardino ordinance also includes provisions that apply to existing alcohol sales outlets by imposing an automatic deemed-approved status on these businesses. The broad concept behind this approach is to recognize existing legal nonconforming outlets as “approved” by the Ordinance, which releases the restrictions and rights generally conveyed to legal nonconforming uses. This new deemed-approved status applies to each of these alcohol sales outlets, but is dependent on continued compliance with unique performance standards that are developed especially for deemed-approved outlets. These seven performance standards are general, and provide a basic level of required performance and a framework for future enforcement efforts if ever needed.
Similarly, the ordinance identifies and clarifies actions that would remove the deemed-approved status and prompt a requirement for a Use Permit for the operation. These actions include a change in the license from the Department of Alcoholic Beverage Control (ABC), a change in the mode or character of operation (as defined by the ordinance), or discontinuance of alcohol sales for 90 consecutive days. Should any of these actions occur, the operator would need to apply for a Use Permit from the Planning Commission and would be subject to the entire litany of current requirements for new operations.
Finally, the San Bernardino Ordinance includes a distinct enforcement and penalty process for all alcohol sales outlets which includes a hearing process where an Administrative Hearing Officer hears and decides matters based on alcohol-specific standards for review.
City of Stockton
Staff believes that the City of Stockton would greatly benefit from an alcohol ordinance identical, or very similar, to the City of San Bernardino Ordinance. Because it has been tested by the Court of Appeals, it can reliably be considered an adequate legal ordinance, which is absolutely essential for such a strong regulatory device. Further, it addresses the issue of existing sales outlets, offers a menu of tested and consistent Conditions of Approval, creates a meaningful and efficient enforcement and penalty process, and imposes performance standards.
Staff recommends that a future ordinance also contain criteria and definitions for “public convenience or necessity” as used by the ABC licensing process. This will enable staff to better evaluate the appropriateness of requests for new licenses when a Use Permit is not concurrently required, as happens on occasion. This will also enable the Planning Commission to better consider a finding when required with a Use Permit application. As mentioned at the April 9, 2015 Planning Commission meeting, there are two conditions that constitute “undue concentration” - 1) exceeding the ratio standard or 2) a high crime reporting district. The City of Stockton is currently over-concentrated in regards to ratio standards as a City and within most individual census tracts. Further, many areas of the City would be considered unduly concentrated based on the existence of high crime reporting districts. A future ordinance should integrate these important considerations to discourage the further proliferation of alcohol sales outlets in impacted areas.
Next Steps
There remain some critical policy decisions to be made. Specifically, staff is looking for direction from the Planning Commission on the following issues:
1. Should a forthcoming ordinance address on-sale outlets, such as restaurants, bars, and nightclubs? The San Bernardino ordinance addresses both on-sale and off-sale outlets.
2. Are the locational restrictions and other criteria in the San Bernardino ordinance (Section III) appropriate for the City of Stockton? Presently, Stockton imposes just one restriction - a 300-foot separation from schools for off-sale outlets.
3. Are the Conditions of Approval in the San Bernardino ordinance (Section VIII) appropriate for the City of Stockton? Should others be added? Recall that the San Bernardino ordinance is non-exhaustive and that other Conditions could be added. The benefits of providing consistent language for a frequently-used Condition include predictability among applicants, prevention of legally-inadequate language, and a deterrent for likely non-compliant applicants.
4. What are your impressions on the Administrative Hearing Officer process? The City of Stockton currently uses a very similar process for Code Enforcement. Staff would recommend that it be broadened to integrate the alcohol hearing process. This process allows for consistent and un-biased enforcement for all issues short of revocation and would be much more cost-effective and efficient (for all parties) than regular hearings before the Planning Commission.
5. As always, Planning Commissioners and the public are encouraged to bring forth additional areas of concern related to this issue.
Once the above direction is provided, staff will return to the Planning Commission with a newly-developed ordinance reflecting the above-discussion for formal consideration at a Public Hearing. The Planning Commission would then forward a recommendation to the City Council who would take final action on the ordinance.
Attachment A - San Bernardino Alcohol Ordinance - Codified Version
Attachment B - San Bernardino Alcohol Ordinance - City Council Form