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FINDINGS AND ORDER OF THE FULLERTON CITY COUNCIL REGARDING APPEAL
OF DENIAL OF THE RENEWAL APPLICATION OF THE ENTERTAINMENT PERMIT
JONES MAYER
Harold W. Potter, Esq., Bar No. 120107
Email: [email protected]
3777 North Harbor Boulevard
Fullerton, California 92835
Telephone: (714) 446-1400
Facsimile: (714) 446-1448
Attorneys for City of Fullerton Police Department
BEFORE THE CITY COUNCIL
CITY OF FULLERTON
IN RE:
THE MATTER OF THE DENIAL OF
THE RENEWAL APPLICATION OF
THE ENTERTAINMENT PERMIT
FOR JP23 URBAN KITCHEN
FINDINGS AND ORDER OF THE
FULLERTON CITY COUNCIL
REGARDING APPEAL OF DENIAL
OF THE RENEWAL APPLICATION
OF THE ENTERTAINMENT
PERMIT FOR JP23 URBAN
KITCHEN
FINDINGS AND ORDER
I. BACKGROUND INFORMATION RE AUTHORITY
Entertainment permits are governed Fullerton Municipal Code (“FMC”) Chapter
3.08. (Administrative Record (“AR” Exhibit 1). “Entertainment” includes dancing, live musical performances, music provided by a disk jockey, comedians, or similar activity involving amplified music. (FMC §§ 3.08.020 F, G and H).
Engaging in “entertainment” by a business requires a valid entertainment permit. (FMC § 3.08.030.)
The Chief of Police may require additional conditions of approval on an 1 2
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FINDINGS AND ORDER OF THE FULLERTON CITY COUNCIL REGARDING APPEAL
OF DENIAL OF THE RENEWAL APPLICATION OF THE ENTERTAINMENT PERMIT
entertainment permit based on specific location and operational characteristics of the business. (FMC § 3.08.140.) Businesses which obtain an entertainment permit must comply with all applicable laws, regulations, ordinances and stated conditions. (FMC § 3.08.140 A.) Entertainment may not take place between the hours of 2:00 a.m. and 8:00 a.m. Further time limitations may be imposed by either the conditional use permit (“CUP”) or the entertainment permit. (FMC §
3.08.140 B.) A denial of a renewal application of an existing entertainment permit may be appealed to the City Council. (FMC §3.08.160).
II. BACKGROUND INFORMATION RE APPEAL
JP23 Urban Kitchen (“JP 23”) sought and obtained a Conditional Use Permit (“CUP”) on or about October 16, 2019 (AR Exhibit 2-Resolution No. PC- 2019-19; ZON-2019-0091), which required compliance with certain terms, conditions, restrictions, and limitations.
JP23 possessed a valid entertainment permit between October 14, 2019, to October 14, 2020. Entertainment was authorized by said permit nightly between 9:30 p.m. to 1:30 a.m. (AR Exhibit 3).
On October 1, 2020, JP23 submitted a renewal application to the City to renew its entertainment permit. (AR Exhibits 4 – 9). The application review was delayed due to the changing nature of the COVID-19 restrictions in restaurants (AR-Transcript (“TR”) 95:14-17) and JP 23’s failure to submit necessary documentation. (AR Exhibit 46). In addition, during the interim, a noticeable increase in requests for service involved JP23. (AR TR 96:1-10).
Police Chief Robert Dunn (“Dunn”) organized a “Remedy Meeting” to resolve the issues pertaining to the renewal. (FMC § 3.08.150 A.) (AR Exhibit 46).
The Remedy Meeting took place on August 27, 2021. (AR Exhibit 47).
On September 20, 202, Dunn sent a letter to JP 23 modifying the entertainment permit with 30 days to comply. (AR Exhibit 47). In reply, JP 23 responded in a letter dated September 22, 2021, since the Chief’s decision arising 1 2
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FINDINGS AND ORDER OF THE FULLERTON CITY COUNCIL REGARDING APPEAL
OF DENIAL OF THE RENEWAL APPLICATION OF THE ENTERTAINMENT PERMIT
from a Remedy Meeting was not appealable, it was tantamount to a due process violation. (AR Exhibit 48). In a reply correspondence dated September 23, 2021, Dunn denied the renewal application. (AR Exhibit 49). JP 23 filed their timely appeal on September 24, 2021. (AR Exhibit 50). This Appeal followed.
III. BACKGROUND INFORMATION RE APPEAL HEARING
Fullerton Municipal Code (“FMC”) 3.08.160(F) states in relevant part: “The Permittee may file an appeal to City Council with the City Clerk within (10) ten calendar days of the date of mailing of the notice of revocation.” The parties agree this matter is properly before the Fullerton City Council on a timely filed appeal.
FMC is silent as to the nature and manner of appeal. Nonetheless, it is assumed by referencing “Appeal”, the FMC intended for a full due process hearing with witnesses, presentation of evidence and oral argument before the City Council.
After meeting and conferring on the Appeal procedures, the parties agree the City Council will conduct a De Novo due process hearing of FPD’s decision. Each side will have two (2) hours to present their case. Each side will have fifteen (15) minutes to present a closing argument. FPD’s sur-rebuttal argument is included in said time. Since this is an Administrative Hearing, the formal rules of evidence will not be enforced, and hearsay may be considered by the City Council and given the weight it determines appropriate. FPD bears the burden of proof by a preponderance of the evidence on the Appeal issue. Counsel for the parties agreed to the appeal procedures with a written acknowledgement thereto in a correspondence dated December 13, 202 and made a part of the administrative record herein. Prior to the Appeal Hearing, the City Council adopted said procedure. (AR TR 7:4-10).
IV. BACKGROUND INFORMATION RE ADMINISTRATIVE
RECORD
The Administrative Records is compromised of the following:
December 10, 2021, correspondence of Harris to Potter re recusal of council 1 2
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FINDINGS AND ORDER OF THE FULLERTON CITY COUNCIL REGARDING APPEAL
OF DENIAL OF THE RENEWAL APPLICATION OF THE ENTERTAINMENT PERMIT
December 13, 2021, correspondence of Potter to counsel re appeal procedures Trial Brief of Fullerton Police Department (“FPD”)
Transcript of Hearing
Joint Exhibits 1-59
V. ISSUE PREESENTED ON APPEAL
The issue on Appeal, as stipulated by the parties, is whether the entertainment permit renewal application, by a preponderance of the evidence, be denied and if not, whether the entertainment permit should be allowed as is or renewed with reasonable restrictions and limitations.
VI. FINDINGS
Due to ongoing negotiations prior to the appeal and compliance with several issues raised by Dunn in his previous correspondence to JP 23 (AR Exhibits 47 & 49), the police department presentation narrowed its focus on the remaining issues of crimes, calls for service and arrests, the overcrowding event, queuing, exterior lighting, and the live entertainment hours. Each will be discussed separately herein.
A. Crimes, Calls for Service & Arrests
The bulk of the police department’s presentation of evidence centered around this issue. Lieutenant Joel Craft (“Craft”) testified he has been with the department 24 years. (AR TR 23:1-4). Craft was asked by Dunn to review crime and arrest reports pertaining to JP 23. (AR TR 24-18-250. Craft reviewed crime reports from September 1, 2020, to July 18, 2021. (AR TR 28:1-3). Craft summarized his findings in a Memorandum dated July 30, 2021. (AR Exhibit 13).
In total, during the time period in question, FPD received 211 calls for service, prepared 44 general offense reports and made a total of 50 arrests. (AR Exhibit 13). During this same time period, FPD received 53 assault/battery and fight calls at JP 23, 5 assaults with a deadly weapon, 1 overcrowding citation issued by the Fullerton Fire Marshal and 9 que line violations. (AR Exhibit 13). Craft testified in detail regarding police reports AR Exhibits 14-22, 26, 27 and 32. 1 2
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FINDINGS AND ORDER OF THE FULLERTON CITY COUNCIL REGARDING APPEAL
OF DENIAL OF THE RENEWAL APPLICATION OF THE ENTERTAINMENT PERMIT
Craft testified about AR Exhibit 39, a Computer Assisted Dispatch (“CAD”) Call Print Synopsis from September 1, 2020, to July 18, 2021 (AR TR 43:11-25), showing 211 calls for service at JP 23. By contrast, Craft testified nearby JP 23 establishments Matador had 159 (AR TR 45:18-21; AR Exhibit 40), D Vine had 115 (AR TR 46:9-11; Exhibit 41), Revolucion had 36 (AR TR 46:17-18; AR Exhibit 42), Zing’s had 41 (AR TR 46:19-24; AR Exhibit 43).
Craft conceded on cross-examination not all the reports were regarding specific events occurring within the premises of JP 23 and some events occurred at or near JP 23 were included in the CAD report. Also, bar checks would not be a basis for evaluating an entertainment permit. (AR TR 78:9-13).
The City Council found Craft’s testimony to be credible. The number of calls for service indicated an issue which necessitated action to initiate appropriate mitigation measures.
B. Overcrowding Event
JP 23 Fullerton Fire Permit issued 9/28/17 allowed for 176 people inside and 30 on the patio. (AR TR 110:16-23; AR Exhibit 12). The CUP dated October 16, 2019, allowed a maximum occupancy of 299. (AR Exhibit 2(B)(3); AR TR 110:24-25-111:1). The City Council finds the CUP to be controlling. On June 6, 2021, JP 23 was issued a citation for 333 patrons inside the establishment. (AR Exhibit 13). The City Council finds a violation regardless of either the fire permit or CUP. The City Council did not consider a higher additional number including the temporary patio dining since the count was inside the establishment.
C. Queueing
At times, the queue line presents problems. (AR TR 91:22-25). The queue line tends to, on certain nights, accumulate on the south sidewalk of Commonwealth, in the area of the entrance door of JP23. (AR TR 92:11-4). The queue line also congregates in the alley behind JP23. (AR TR 92:5-7). The queue line becomes larger from 11:00 p.m. to 1:00 a.m. (AR TR 92:8-12). JP 23 entered 1 2
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FINDINGS AND ORDER OF THE FULLERTON CITY COUNCIL REGARDING APPEAL
OF DENIAL OF THE RENEWAL APPLICATION OF THE ENTERTAINMENT PERMIT
into an “Deed Granting Easement” agreement with ‘Chez Bibby’ Tattoo Parlor allowing a queue to pass the tattoo shop back door. (AR Exhibits 55 & 56). JP 23 approved security plan allows for queueing past the tattoo shop with consent. (AR Exhibit 7). Sergeant Tony Rios approved the security plan. (AR TR 133:12-18).
D. Exterior Lighting
JP 23 CUP required, within 60 days of the approval, the applicant to
obtain a building permit to install lighting on both the northerly and westerly
exterior elevations and establish when the lights should have been turned on and off. (AR Exhibit 2(B)(4); AR TR 12:17-25). These conditions have not yet been met. (Id.)
JP 23 installed exterior lighting on the western exterior but did not obtain a required building code. (AR TR 13:1-21). JP 23 has not installed any exterior lighting on the northern elevation of the building. (AR TR14:1-4). Numerous building code violations, including the lighting issues have been documented and citations issued. (AR Exhibit 10).
JP 23 obtained 2 electrical estimates. (AR Exhibit 57 & 58). JP 23 hired Bolt Electric to submit plans to the City for the lighting issues which is in process. (AR TR 131:1-5).
The City Council finds the nearly 2-year delay in obtaining the necessary approvals for lighting is unreasonable and should be remedied forthwith.
E. Live Entertainment Hours
Dunn testified as to the rationale in determining to limit the hours of live entertainment and acknowledged he did not have the authority to close a business at a certain hour but could only control the hours of live entertainment. (AR TR 101:13-16). Dunn took into consideration the totality of the circumstances as well as the calls for service. Dunn personally had gone out to the location several times and watched crowd behavior. (AR TR 100:17-23). The alley behind JP 23 is a thoroughfare for patrons from all over downtown making their way back 1 2
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FINDINGS AND ORDER OF THE FULLERTON CITY COUNCIL REGARDING APPEAL
OF DENIAL OF THE RENEWAL APPLICATION OF THE ENTERTAINMENT PERMIT
to the parking structure and becomes a choke point. During those choke point moments is when people bump up against each other and fights start. Dunn’s thought process behind condensing live entertainment hours was to have patrons leave prior to that egress and then have other patrons come later on in the evening, which is congruent with some of the other businesses to alleviate some stress in downtown at closing time. (AR TR 101:1-12). Dunn opined live entertainment should cease at midnight on the weekends (Thursday-Saturday), and 11:00 p.m. on the weekdays (Sunday-Wednesday).
Jacob Poozhikara (“Poozhikara”) testified a good portion of his business comes from the post 9-10:00 p.m. patrons that come in. It is a chunk of his business, by almost 50 percent. Poozhikara did not present specific facts to gauge the projected loss because we're just coming off the pandemic and crowds have shifted and changed compared to previous years. (AR TR 141:6-13). Poozhikara believes if there was no live entertainment after 11:00 p.m. during the week and midnight on the weekend layoffs would occur. (AR TR 141:23-225; 142:1-5).
Poozhikara testified JP 23 does almost $4 million in business there annually and it is a very, very busy bar and restaurant with a significant amount of business. (AR TR 144:17-24).
The City Council finds Dunn’s decision to curb entertainment hours is reasonably related to objective findings which are not mitigated by JP 23’s unproven concern for loss of business related to a reduction in entertainment hours.
VII. ORDER
The denial of the entertainment permit (AR Exhibit 49) renewal request is overruled. An entertainment permit shall issue with the following modification:
1. No live entertainment after 11:00 p.m., Sunday-Wednesday. No live entertainment after 12:00 a.m., Thursday-Saturday. This provision shall be reviewed in 9 months.
2. Operate under the current CUP terms and conditions of 299 occupancy. 1 2
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FINDINGS AND ORDER OF THE FULLERTON CITY COUNCIL REGARDING APPEAL
OF DENIAL OF THE RENEWAL APPLICATION OF THE ENTERTAINMENT PERMIT
3. Maintain queueing as set forth in the approved Security Plan. (AR Exhibit 7 ).
4. Immediately bring the exterior lighting into compliance with the existing CUP. (AR Exhibit 2).
Dated: January __, 2022
Fred Jung, Mayor
City of Fullerton