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USE PERMIT TO ESTABLISH A BAR WITH THE ON-SALE OF GENERAL ALCOHOLIC BEVERAGES IN AN EXISTING BUILDING AT 222 NORTH SUTTER STREET (P16-0307)
recommended action
RECOMMENDATION
Staff recommends that the Planning Commission adopt a resolution denying a Use Permit to establish a bar with the on-sale of general alcoholic beverages in an existing building at 222 North Sutter Street, in accordance with the Findings for Decision detailed herein.
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Summary
This application was scheduled to be considered by the Planning Commission at its regularly-scheduled public meeting on November 17, 2016. However, in response to a request from the applicant’s attorney, the Planning Commission continued the hearing to its regularly-scheduled public meeting on December 15, 2016.
The applicant, Amar Singh Mathfallu, is seeking to convert an existing restaurant (Rubie’s) with the on-sale of general alcoholic beverages to a bar with the on-sale of general alcoholic beverages in an existing building at 222 North Sutter Street (Attachment A - Aerial Photograph/Site Plan). The project has been reviewed against the Development Code’s standards for alcoholic beverage sales uses and staff has determined that it is inconsistent with all three of the applicable Location Restrictions for an on-sale alcohol use: proximity to schools and parks, location within a High Crime Reporting District, and proximity to other alcoholic beverage sales establishments. Staff recommends against a waiver of the noted Location Restrictions as the project does not promote and support local economic business growth in the downtown area. Therefore, staff recommends that the Planning Commission deny the application, based on the recommended findings of fact.
DISCUSSION
Background
The site is zoned CD (Commercial, Downtown) and is bounded to the:
• north by a two-story commercial building and a multi-story office building (Medico-Dental Building) zoned CD,
• west across Sutter Street by a parking lot zoned CD,
• south by a vacant lot (formerly a motel) zoned CD, and
• east by a parking lot and a three-story commercial building zoned CD.
The General Plan designates the project site for Commercial land use. This land use designation and the accompanying CD zoning conditionally allow a bar with the on-sale of general alcoholic beverages, subject to securing an approved Use Permit from the Planning Commission.
As background, the structure on the subject site has existed since before 1936 and appears to have been originally constructed as a retail store. The building has been occupied by various restaurants since approximately 1947, under a variety of names, including Seven Seas, the Pump Room, the Pancake and Chicken Pantry, Joe’s, and Torino’s.
The applicant is proposing to convert the site’s existing 7,400-square foot restaurant (Attachment B - Floor Plan), known as Rubie’s, with the on-sale of general alcoholic beverages, to a bar with the on-sale of general alcoholic beverages. He is not proposing any modifications to the interior of the building and only intends to paint portions of the exterior of the building at this time (Attachment C - Street Elevation). The restaurant is currently open on Tuesdays, Thursdays, and Saturdays between 2:00 p.m. and 7:00 p.m. and on Fridays between 2:00 p.m. and 12:00 a.m. (midnight), for a total of approximately 25 hours per week.
According to the applicant, the proposed bar would only be open two days per week - Friday and Saturday - between the hours of 5:00 p.m. and 12:00 a.m. (midnight), for a total of 14 hours per week. The proposed alcohol service would be supplemented by limited food service, consisting of packaged snack foods and warmed or thawed prepared food items. The proposed food service does not qualify as a full-service restaurant, according to both State Department of Alcoholic Beverage Control (ABC) standards and City Development Code standards and definitions. As a result, the applicant must secure a Type 48 ABC License (On-Sale General for Public Premises). The applicant has stated that he would give up his existing Type 47 License (On-Sale General for Bona Fide Public Eating Place), if he secures an approved Use Permit for the proposed bar.
Staff at ABC have indicated that the applicant has submitted an application for a Type 48 License and that he stated he would exchange his existing Type 47 License for the new license if his Use Permit application is approved by the Planning Commission. The applicant indicated to staff that he purchased the property in 2008 and has been operating the business since that date. According to staff at ABC, there was a violation involving sales to minors in 2014. A fine was paid to ABC for that violation and, as a result, the license was not suspended. The operator’s license was suspended by ABC in 2015, due to the “failure to operate as a bona fide eating place” and “purchasing alcohol from a retailer for resale.” Following corrective actions, the operator was allowed to re-open the restaurant earlier this year.
Census Tract Overconcentration
The project site is located in Census Tract 1.00. ABC has determined that three (3) on-sale and three (3) off-sale alcoholic beverage establishments are allowed within the Census Tract. Currently, there are 31 existing licenses in the Census Tract, including the applicant’s Type 47 License. (Attachment D - Census Tract 1.00/Liquor Licenses). Therefore, the area is over-concentrated with respect to both on-sale and off-sale establishments. According to ABC staff, exchanging the applicant’s Type 47 License for a Type 48 License will not result in a net increase in the number of active licenses and will not increase the existing overconcentration. Therefore, a Finding of Public Convenience or Necessity (PCN) will not be required for this project.
Location Restrictions
Stockton Municipal Code (SMC) Section 16.80.040 contains the following locational criteria for alcoholic beverage sales establishments:
Proximity to Schools and Parks
Section 16.80.040.D(2) requires a minimum separation of 500 feet between a new alcoholic beverage sales establishments (including both on-sale and off-sale uses) and public or private academic schools for students in kindergarten through 12th grade, nursery schools, preschools, day care facilities, public parks, playgrounds, recreational areas, or youth facilities. The nearest school, Stockton Collegiate Elementary and High School, a charter school located at 321 East Weber Avenue, is approximately 390 feet to the southwest of the project site. According to records maintained by the San Joaquin County Office of Education, there are no CountyOne Schools located within 500 feet of the project site. The nearest traditional public schools, Pittman and Alex D. Spanos Elementary Schools (Stockton Unified School District), are located approximately 2,000 and 2,700 feet, respectively, to the northeast and south of the project site (see Attachment D). Finally, staff is not aware of any parks, playgrounds, recreational areas, or youth facilities within 500 feet of the project. Due to the proximity of the noted charter school, the subject use does not comply with the noted minimum required separation.
High Crime Reporting District
SMC Section 16.80.040.D(2)(d)(i) provides that a business with the on-sale of alcoholic beverages shall not be located in a Crime Reporting District (CRD), where the average number of crimes in that district exceeds the average number of crimes for all CRDs Citywide by more than 20 percent. The project site is located in CRD No. 102, consisting of 24 blocks in the downtown area between Park Street, California Street, Weber Avenue, and El Dorado Street. For the purpose of tabulating CRD crime statistics, the Police Department tracks only Part 1 crimes, which consist of homicide, rape, robbery, aggravated assault, burglary, auto theft, larceny, and arson. According to statistics maintained by the Police Department, CRD No. 102 had 222 Part 1 crimes reported from 2013 through 2015. That number is 161.18% above the average number of calls in the City for that period: 85. Therefore, the subject use does not comply with the noted restriction.
Proximity to Other Alcoholic Beverage Sales Establishments
Section 16.80.040.D(2)(d)(i) provides that when an application for a new alcoholic beverage establishment is reviewed for approval, the proximity to existing on-sale establishments may serve as grounds for denial. Specifically, that section provides that the establishment shall not be located in an area within 500 feet of an existing on-sale alcoholic beverage establishment or any location that would lead to the grouping of more than four (4) on-sale alcoholic beverage establishments within a 1,000-foot radius. There are three (3) on-sale alcoholic beverage establishments within a 500-foot radius of the project site, not including the applicant’s existing on-sale (Type 47) license, and 13 on-sale alcoholic beverage establishments within a 1,000-foot radius of the project site, not including the applicant’s on-sale license. (Attachment D - Census Tract 1.00/Liquor Licenses). Based on the above information, the subject bar does not comply with both of the noted minimum separation requirements.
Rationale for Waivers
The SMC provides the applicable Review Authority with the discretion to waive the above-noted Location Restrictions to promote and support local economic business growth, throughout the City, including the Downtown District.
The City of Stockton 2012 Urban Land Institute (ULI) Assessment outlined a recommended focus area for revitalization in the downtown. The ULI Panel recommended that revitalization efforts focus on the Miner Avenue corridor from Weber Point to Cabral Station, including areas within one to two blocks north and south. This area includes the subject site on Sutter Street. The Panel also outlined key characteristic of a successful downtown, including:
• having a broad mix of uses in the public, private, and civic realm, offering commercial, government, medical, educational, cultural, residential, and recreation functions;
• activity across the day (into evenings) and week (including weekends); and
• lively street frontages.
The subject bar does not reflect consistency with the three characteristics noted in the ULI Assessment; specifically, it has very limited hours of operation/activity level (the business is only proposed to be open for a total of 14 hours per week); does not present a lively or active street frontage (no improvements have been proposed to the site’s frontage on Sutter Street, which currently consists of a relatively blank block wall with one bank of windows, and a roll-up security door over the entrance to the facility); and has no outdoor dining or other activity areas; (Attachment C - Street Elevation). For these reasons, the project does not promote and support economic growth in the downtown area and staff recommends that the noted Locational Restrictions not be waived.
Findings
The Development Code contains specific Findings, all of which must be made in the affirmative to support the approval of a Use Permit. If one or more of the Findings cannot be made, the Use Permit cannot be approved.
General Findings
There are seven required General Findings in SMC Section 16.168.050.A. They require compliance with all applicable provisions in the SMC; maintaining the integrity and character of the applicable zoning district; consistency with applicable General Plan objectives and policies; physical suitability of the site for the proposed use; not endangering or jeopardizing the public health, safety, peace, or general welfare of the public; compatibility with surrounding uses; and consistency with the California Environmental Quality Act. With respect to these General Findings, the project does not comply with applicable provisions of the Development Code because the proposal is not consistent with the three (3) noted Locational Restrictions and a waiver of these restrictions is not feasible. Also, as indicated in the Proposed Resolution, the project does not strengthen the integrity of either the surrounding area or the overall downtown, could jeopardize or be hazardous to public peace and welfare, and could be incompatible with surrounding land uses.
Problem Use Findings
Section 16.168.050.B contains three specific Findings for Problem Uses, which are defined as uses that have “a blighting and/or deteriorating effect upon their surroundings, and which may be dispersed to minimize their adverse impacts.” The subject bar, which involves the on-sale of alcoholic beverages that is not in conjunction with a restaurant, is defined by the Development Code as a Problem Use. In addition to the required Findings for Problem Use, the subject use must comply with the criteria contained in SMC Section 16.80.270, Standards for Problem Uses. Those criteria address the proximity of other Problem Uses; the effect of dispersal or concentration of problem uses in the general area; the effect that the proposed use is likely to have on the neighborhood; the noise, traffic, and/or visual impacts, as well as other relevant factors, on the compatibility of the proposed use with the surrounding institutional, business, and residential uses; the potential of the proposed use to create or increase loitering or vandalism in the area; and the degree that traffic safety, both on- and off-site, will be adversely affected by the proposed activity.
As noted in the Proposed Resolution, the proposed use is likely to interfere with the comfortable enjoyment of life or property in the area due to its potential adverse impact on crime problems in the area, because no evidence has been submitted to confirm that it would not result in blighting or deterioration in the area, and has the potential to adversely affect the conservation and improvement of the area.
Alcoholic Beverage Findings
Section 16.168.050.C contains four specific Findings for Alcoholic Beverages. The first Finding addresses the project’s potential to result in nuisance activities on and in close proximity to the subject site. The three remaining Findings deal with training in ABC alcohol regulations, compliance with applicable governmental regulations, and the possible need for an ABC Public Convenience or Necessity Finding and do not need to be addressed, because staff is recommending that the Planning Commission deny the project. With respect to the first of the required Findings, the Proposed Resolution states that the use can be expected to result in nuisance activities, due to the additional calls for police service that be expected from the use. The document also notes that the project site is located in an area that already experiences a relatively high level of crime problems.
Public Comments
Staff has provided both public notice and advertising to the surrounding neighborhood as required by the Development Code and, to date, has not received any public communication on the proposed project. The Planning and Engineering Division of the Community Development Department, the Police Department, Code Enforcement, other City departments, and the surrounding neighborhood have been notified of this request.
External Communication
On November 28, 2016, staff received a letter addressed to the Planning Commission from the applicant’s attorney (Attachment E - Supplemental Information from Applicant’s Attorney). The letter addressed a variety of issues including: site proximity to the nearest school, location in a High Crime Reporting District, and proximity to other alcoholic beverage establishments. The letter also addressed the granting of waivers to required Location Restrictions, the project’s required Findings for Approval, and the absence of public comment regarding the project.
Staff has reviewed the letter and determined that its contents do not warrant a change to staff’s recommendation that the Planning Commission deny the subject Use Permit. The applicant’s attorney seems to imply that the location restrictions do not apply to this request because there is already a restaurant with an on-sale license at the location. In doing so, he fails to recognize that the proposed bar is a new use proposed for the site, and is therefore subject to the requirement to obtain a new use permit and comply with all alcohol-related code requirements; the existence of a license to operate a restaurant does not confer any rights to change the use to a bar, nor does it excuse such a bar from complying with the code’s requirements.
The applicant’s attorney also fails to acknowledge the differing impacts a bar has as compared with a restaurant, which is why bars are regulated differently from restaurants at both the local and the state-wide levels. Locally, a bar requires a use permit, while a restaurant with alcohol sales does not; under ABC regulations, a different license type is required for each of these business types. In acknowledging these differences, the code is more restrictive of bars than restaurants because the intensity of alcoholic beverage sales activity is greater at bars than at restaurants, and the code’s objective is to protect the public from the greater impacts of alcoholic beverage sales activity associated with bars. For this same reason, the attorney’s assertions regarding crime reports at the site are irrelevant, because they are not crime reports for a bar, but for a restaurant.
Environmental Clearance
Denial of the application does not constitute a project under the California Environmental Quality Act (CEQA) and, therefore, no environmental analysis is needed for the proposed use.
VOTES
A vote of a majority, four (4), of the total authorized membership of the Planning Commission is required for the Commission to transact business or decide any matter.
Attachment A - Aerial Photograph/Site Plan
Attachment B - Floor Plan
Attachment C - Street Elevation
Attachment D - Census Tract 1.00/Liquor Licenses
Attachment E - Supplemental Information from Applicant’s Attorney
This staff report was prepared by Planning Manager Richard Larrouy.
(209) 937-8627/richard.larrouy@stocktonca.gov.