THE EDUCATION COMMUNITY
303 West Commonwealth Avenue, Fullerton, California 92832-1775 (714) 738-6598 · Fax (714) 738-3110 · Website: www.cityoffullerton.com
CITY OF FULLERTON
_______________________________________________________________________________________________________________________________________________ Community and Economic Development Department
Item No. 3
October 12, 2022
6:30 p.m.
Public Hearing
TO: Chairman Cox and
Members of the Planning Commission
APPLICATION
ZON-2020-0035
APPLICANT
Denise Casas (Nightlife Entertainment)
LOCATION
120 West Wilshire Avenue, Suite A (120 Fullerton)
SUMMARY AND APPLICATIONS REQUESTED
The applicant is requesting approval of a new Conditional Use Permit (CUP) for an existing restaurant (120 Fullerton), which includes entertainment, an existing outdoor dining patio, and a Type 47 ABC License (on- site sale of beer, wine, and distilled spirits) per Fullerton Municipal Code (FMC) Section 15.30.030.3.B.21.
CEQA DETERMINATION
The proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15301 (Class 1 – Existing Facilities).
AUTHORIZATION/GUIDELINES
FMC Section 15.30.030.3.B.21 requires a CUP to operate a restaurant with an alcohol license and entertainment in the Central Business District Commercial (C-3) zoning district. Additionally, FMC Chapter 15.31 specifies regulations for businesses selling alcohol in any zone and Section
15.70.010 authorizes the Planning Commission to review and act on a CUP request based on the findings contained in Section 15.70.040.
PUBLIC OUTREACH
On September 28, 2022, the City sent a Public Hearing Notice to a total of 182 owners and occupants of property within a 300-foot radius of the project site. Notification was posted in two locations on the project site on S eptember 29, 2022. In addition, notice was publis hed in the Fullerton New s Tribune on September 29, 2022. The notice was also posted on the City’s Planning Commission Staff Report – 120 West Wilshire Avenue October 12, 2022
Item No. 3 Page 2 ZON-2020-0035
website and at the Maintenance Services Department, Main Library, Museum Center , and City Hall on the Public Notice Boards.
PROJECT BACKGROUND
Project Applicant: Denise Casas (Nightlife Entertainment) Property Owner: Fullerton Promenade
Property Location: 120 West Wilshire Avenue, Suite A
General Location:
South side of West Wilshire Avenue, approximately
262 feet west of the intersection of Ha rbor Boulevard
and Wilshire Avenue
Parcel Number: 032-232-33
Existing Community
Development Type (General
Plan Land Use Designation):
Downtown Mixed Use
Focus Area: Focus Area E - Downtown
Existing Zoning
Classification:
C-3 ROD ( Central Business District - Restaurant
Overlay District)
Site Size: Approximately 13,250 square feet
Parking:
The property contains no parking spaces; the site is
within the Restaurant Over lay District which exempts
restaurants from being required to provide on- site
parking.
Existing Conditions: Multi-tenant spaces with restaurant and retail uses Surrounding Land Uses
and Zoning:
North, East, and West – General retail, personal
service, and restaurants, zoned C-3 (Central Business
District Commercial)
South – Public Parking, zoned C-3 (Central Business
District Commercial)
BACKGROUND
The original restaurant wit hin the subject tenant space opened in Augus t of 2006 , under the name Envy Ultra Lounge. A Conditional Use Permit was requested to operate a restaurant with an after-dinner nightclub, live entertainment, and full alcohol sales in early 2009. This request was granted , pursuant to R esolution PC -09-22, in June of 2009 (Attachment 3). Envy Ultra Lounge closed its doors late 2012. In 20 13 a ne w business operator opened a restaurant named The Woods, utilizing the original Conditional Use Permit obtained in 2009. Between the years of 2016 and 2017, business registrations show uncertai nty on ownership of the business known as The Woods. In l ate 2017, the current owner obtained a business registration to open a new restaurant named 120 Fullerton.
The current business owner applied in 2020 to amend the existing C onditional Use Permit to bring the business operations in compliance w ith the standard operational conditions contained Planning Commission Staff Report – 120 West Wilshire Avenue October 12, 2022
Item No. 3 Page 3 ZON-2020-0035
in FMC Chapter 15.31. During the review of the applicant’s request, it was discovered the existing floor plan had been modified by the previous business owner without the benefit of building permits; these unpermitted changes affected required ADA and Occupancy regulations.
During the COVID-19 pandemic, the current owner took the necessary steps to obtain building permits and corrected the unpermitted construction.
PROJECT DESCRIPTION
The existing restaurant cont ains approximately 2,760 square feet of total indoor area , with 378 square feet of fully open patio area, at the southern portion of the tenant space.
The business is operating pursuant to a Conditional Use Permit received in June of 2009 (Resolution PC-09-22, Attachment 3). The applicant is requesting a new Conditional Use Permit to align the proposed business operation with the adopted regulations contained in Chapter
15.31 and 3.08 of the Fullerton Municipal Code pertaining to businesses serving alcoho l and offering entertainment. The applicant has not r equested any modifications to the standard operational conditions for a bar contained in FMC Chapter 15.31.
The restaurant will be open for regular business from:
• Tuesday -- 12:00 p.m. until 2:00 p.m. and 6:00 p.m. until 2:00 a.m. • Thursday through Saturday -- 12:00 p.m. until 2:00 p.m. and 6:00 p.m. until 2:00 a.m. • Sunday -- 12:00 p.m. until 12:00 a.m.
The restaurant will be offering live entertainment from:
• Tuesday -- 10:00 p.m. until 2:00 a.m.
• Thursday through Saturday -- 10:00 p.m. until 2:00 a.m. • Sunday -- 10:00 p.m. until 12:00 a.m.
The applicant holds a Type 47 ABC License, has a fully operational kitchen, and offers a full food menu every day they are open, up until one hour of clos ing. The applicant has maintained an Encroachment Agreement for the 378 square foot outdoor dining area from the Public Works Department.
The business has not had live entertainment on site since COVID-19 restrictions began in 2020.
All proposed live entertainment approved under this Conditional Use Permit request is subject to the requirements and permitting established by FMC 3.08.
ANALYSIS
Conditional Use Permit
FMC Chapter 15.31 provides standard conditions under which establishments serving alcoholic beverages may operate. Applicable requirements address the following operational areas:
• Hours of operation
• Security and operations
• Outdoor music
• Promoters
• Cover charge
• Noise
Planning Commission Staff Report – 120 West Wilshire Avenue October 12, 2022
Item No. 3 Page 5 ZON-2020-0035
Attachments to Report
1. Draft Planning Commission Resolution No. PC-2022-23 including Floor Plan
2. Hearing Notice
3. Resolution PC-09-22
4. PowerPoint Presentation
RESOLUTION NO. PC- 2022-23
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
FULLERTON, CALIFORNIA, APPROVING A CONDITIONAL USE PERMIT FOR AN EXISTING RESTAURANT (120 FULLERTON) WITH A TYPE 47 (ON -SITE
SALE OF BEER, WINE, AND DISTILLED SPIRITS) ABC LICENSE,
ENTERTAINMENT, AND A N EXISTING OUTDOOR DINING PATIO ON PROPERTY ZONED C -3, LOCATED AT 120 WEST WILSHIRE AVENUE (SOUTH SIDE OF WEST WILSHIRE AVENUE, APPROXIMATELY 262 FEET
WEST OF THE INTERSECTION OF HARBOR BOULEVARD AND WILSHIRE
AVENUE)
ZON-2020-0035
APPLICANT: DENISE CASAS, NIGHTLIFE ENTERTAINMENT
BUSINESS: 120 FULLERTON
PROPERTY OWNER: FULLERTON PROMENADE
RECITALS
WHEREAS, an application was filed by Denise Casas, requesting a Conditional Use Permit for an existing restaurant with an outdoor dining patio, (120 Fullerton), with a Type 47 (on-site sale of beer, wine and distilled spirits) ABC license and entertainment, more specifically described as:
Orange County Assessor’s Parcel No. 032-232-33
WHEREAS, the existing restaurant is located within a n existing commercial building on real property generally depicted on the plans attached hereto as Exhibit A and incorporated herein by this reference (the "Property"); and
WHEREAS, The Central Business District (C-3) requires a Conditional Use Permit (CUP) for any restaurants wishing to sell alcohol for consumption on the premises pursuant to a liquor sales license issued by the State Department of Alcoholic Beverage Control (ABC) which also provides entertainment; and
WHEREAS, the Planning Commission of the City of Fullerton, in compliance with the noticing requirements of FMC Section 15.76.060, has held a duly noticed public hearing for ZON- 2020-0035; and
WHEREAS, FMC Section 15.70.040 sets forth the intent and purpose by which the Planning Commission is to evaluate a Conditional Use Permit request.
RESOLUTION
NOW, THEREFORE, BE IT FOUND DETERMINED AND RESOLVED by the Planning Commission of the City of Fullerton, as follows:
1. In all respects as set forth in the Recitals of the Resolution.
2. The Planning Commission, pursuant to Fullerton Municipal Code Section 15.70.040.D. finds as follows:
Res. No. PC-2022-23
a. Finding: That the proposed use is conditionally permitted in the zone and complies with all applicable zoning standards.
Fact: The restaurant use is permitted in the C-3 (Central Business District) zone with the approval of a Conditional Use Permit for onsite alcohol sales and Entertainment.
Fact: The proposed operational characteristics of the existing restaurant comply with all applicable zoning standards contained in Chapter 15.31 of the FMC.
b. Finding: That the proposed use is consistent with the goals and policies of the general plan of the city or any specific plan applicable to the area of the proposed use.
Fact: The proposed project is consistent with goals and policies pertaining to land use and compatibility including:
Goal 1: Resilient and vital neighborhoods and districts.
Policy 1.11 Compatibility of Design and Uses. Support programs, policies and regulations to consider the immediate and surrounding contexts of projects to promote positive design relationships and use compatibility with adjacent built environment and land uses, including the public realm.
Goal 10 : An innovation economy built upon Fullerton’s local entrepreneurial spirit and intellectual capital
Policy 10.12 Downtown Economy Diversification . Support policies, projects, programs and regulations that diversify the Downtown economy to create more economic activity.
Fact: As documented in the staff report, the business has been responsive to staff with regards to complying with required Building and Municipal Code regulations. In addition, the business operator has complied with all regulations during the pandemic, operating as a restaurant during this time, with no live entertainment. These activities and actions show responsible business practices and promotes use compatibility with adjacent businesses and restaurants in the Downtown, which leads to potential growth and the opportunity to generate additional employment opportunities.
c. Finding: That the proposed use as conditioned will not, under the circumstances of the particular case, be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity.
Fact: Information provided by the Fullerton Police Department, Fullerton Fire Department, and Department of Alcoholic Beverage Control indicate that the subject business has operated in good standing and has been a responsible operator. Based on this information, there is strong evidence that the business will not be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity.
d. Finding: That the project or use demonstrates compliance with the Design Criteria specified in Section 15.47.060 of Chapter 15.47.
Fact: There are no physical changes proposed with this entitlement request; therefore, the Design Criteria specified in Section 15.47.060 and Central Business District Design Guidelines do not apply.
Res. No. PC-2022-23
3. In accordance with the California Environmental Quality Act (CEQA) Guidelines the Planning Commission finds that the proposed project is exempt from further review per Section 15301 - Class 1 – Existing Facilities.
NOW, THEREFORE, BE IT RESOLVED that the Planning Commission does hereby APPROVE Resolution No. PC-2022-23, contingent upon and subject to the conditions of approval set forth in Exhibit B attached hereto and incorporated herein by this reference.
BE IT FURTHER RESOLVED that the conditions of approval set forth in Exhibit B attached hereto are hereby found to be a necessary in order to preserve the health, safety and general welfare of the citizens of the City of Fullerton . Timing for compliance with conditions of approval may be amended by the Community & Economic Development Director upon a showing of good cause provided (i) equivalent timing is established that satisfies the original intent and purpose of the condition, (ii) the modification complies with the Code, and (iii) the applicant has demonstrated significant progress toward establishment of the use or approved development.
BE IT FURTHER RESOLVED that any suspension, modification or revocation of this permit may be processed in accordance with Chapter 15.31.040 of the Code.
BE IT FURTHER RESOLVED that approval of this application constitutes approval of the proposed request only to the extent that it complies with the Code and any other applicable City, State and Federal regulations . Approval does not include any action or findings as to compliance or approval of the request regarding any other applicable ordinance, regulation or requirement.
ADOPTED BY THE FULLERTON PLANNING COMMISSION ON OCTOBER 12, 2022.
___________________________________
Douglas T. Cox, Chairman
Exhibits:
Exhibit A – Floor Plan
Exhibit B – Conditions of Approval
EXHIBIT A – FLOOR PLAN
Res. No. PC-2022-23
Res. No. PC-2022-23
EXHIBIT B
NO. CONDITIONS OF APPROVAL RESPONSIBLE
DEPARTMENT
PRIOR TO OPERATION OF THE BUSINESS
1 All owners, managers and employees serving and/or selling alcoholic beverages in an establishment shall complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages.
Records regarding the successful completion of the training program shall be maintained on the premises and presented for review upon request by City staff.
Community and
Economic
Development
Department,
Code Enforcement
Division
2 The applicant shall post the businesses alcohol sales policies in a conspicuous location within the establishment. These policies should include:
a. Requirement to provide identification for every customer under the age of 30
b. Notice to patrons regarding the use of video surveillance c. Posting of signage in a conspicuous location which states “It is illegal to serve or sell alcohol to a person who is obviously intoxicated [B&P Code 25602]”
Community and
Economic
Development
Department,
Code Enforcement
Division
ON-GOING DURING OPERATION OF THE BUSINESS
3 The exterior of the business, including signs and accessory structures, shall be maintained free of graffiti at all times. Graffiti shall be removed within twenty-four (24) hours.
Community and
Economic
Development
Department,
Code Enforcement
Division
4 The business owner or operator shall provide for daily/nightly removal of trash, litter and debris (including vomit, urine and excrement) from the premises directly in front of and behind the business establishment and shall endeavor to participate and/or coordinate with the adjacent businesses for removal of trash and debris and on all abutting sidewalks and parking lots within twenty -
five (25) feet of the exterior of the building. Removal and cleaning of this area shall be completed as part of the closing of the establishment.
Community and
Economic
Development
Department,
Code Enforcement
Division
5 Any business providing Entertainment at any time, or On-Site Alcohol Sales after 10:00 p.m., shall be required to provide a written Security/Operational Plan in a form and manner as prescribed by the Police Department. The contents of the plan shall include, but are not limited to :
a. The number and locations of any security personnel.
b. The use and location of video surveillance for the interior and exterior of the establishment as applicable
Police Department
Res. No. PC-2022-23
EXHIBIT B
NO. CONDITIONS OF APPROVAL RESPONSIBLE
DEPARTMENT
c. Lighting plans for the interior and/or exterior. All indoor and outdoor areas shall have adequate lighting to make easily discernible all activities for security and safety purposes. Outdoor lighting shall be designed to minimize light trespass on the streets and adjoining properties, and shall include shielding and fixture placement to restrict unintended light glare. d. Description of security protocols and practices to address incidents within the establishment, exterior patios and queuing areas.
e. When applicable, a written description of how the establishment will provide visibility into the premises for security and police personnel.
The applicant shall remain in compliance with the approved Security Plan on file with the Fullerton Police Department.
6 No admission fee, cover charge, or similar fees may be imposed upon patrons as a condition of entry to the premises prior to 10:00 p.m. After 10:00 p.m., a cover charge may be assessed at the discretion of the business.
Police Department,
Community and
Economic
Development
Department
7 The permitted hours of operation shall be:
• Tuesday -- 12:00 p.m. until 2:00 p.m. and 6:00 p.m. until 2:00 a.m. • Thursday through Saturday -- 12:00 p.m. until 2:00 p.m. and 6:00 p.m. until 2:00 a.m.
• Sunday -- 12:00 p.m. until 12:00 a.m.
a. Food shall be made available from a modified menu until one hour of closing (1:00 a.m.).
The permitted hours of live entertainment:
• Tuesday -- 10:00 p.m. until 2:00 a.m.
• Thursday through Saturday -- 10:00 p.m. until 2:00 a.m. • Sunday -- 10:00 p.m. until 12:00 a.m.
Police Department,
Community and
Economic
Development
Department,
Code Enforcement
Division
8 Neither the business, nor anyone on its behalf, shall share any profits, or pay any percentage or commission to a promoter, or otherwise receive compensation for use of the facilities.
Police Department
9 Noise generated from the establishment shall not exceed the levels specified in Chapter 15.90 of the Fullerton Municipal Code. Police Department, Community and
Economic
Development
Department,
Code Enforcement
Division
Res. No. PC-2022-23
EXHIBIT B
NO. CONDITIONS OF APPROVAL RESPONSIBLE
DEPARTMENT
10 The maximum occupancy established by the Building Code and Fire Code shall not be exceeded at any time. Signs indicating the occupant load shall be posted in a conspicuous place on an approved sign near the main exit from the room.
Police Department
11 The sale of alcoholic beverages for consumption off the premises shall be prohibited. Police Department
12 Outside queuing of patrons shall be located so as not to obstruct the public right-of-way, interfere with any outside eating areas, or impede access to adjacent businesses. Adequate lighting and security provisions shall be required for all queuing areas a nd described in the Security/Operational Plan.
Community and
Economic
Development
Department,
Code Enforcement
Division
GENERAL CONDITIONS OF APPROVAL
13 The applicant shall agree to indemnify, hold harmless, and defend the City of Fullerton, its officers, agents and employees, from any and all liability or claims that may be brought against the City arising out of this approval, or arising out of the operation of the business, save and except that caused by the City’s active negligence.
14 The subject Property shall be developed, used and maintained substantially in accordance with plans and specifications submitted to the City of Fullerton by the Applicant and which plans are on file with the Community Development Department, and as conditioned herein.
15 The business shall comply with all Federal, State and Local laws and regulations. Any violation of adopted laws shall be grounds for citation and/or revocation, pursuant to Fullerton Municipal Code 15.71.080.
16 All refuse storage and disposal areas shall be maintained in a clean, odorless and nuisance free manner. Grease interceptors shall be regularly maintained and shall not become a nuisance to the public and surrounding properties.
PROJECT SPECIFIC CONDITIONS OF APPROVAL
Res. No. PC-2022-23
EXHIBIT B
NO. CONDITIONS OF APPROVAL RESPONSIBLE
DEPARTMENT
17 Applicant shall maintain an approved Encroachment Agreement for Outdoor Dining from the Public Works Department.
Applicant shall use and maintain patio subject to the provisions of the Encroachment Agreement, including payment of any usage fees.
Public Works
18 Ambient Music, as that term is defined in Chapter 15.04 of the Fullerton Municipal Code, is permitted to be played through house speakers at a volume wherein normal conversation is not impeded, within any outdoor dining or patio area.
Entertainment (Minor Acoustical), as that term is defined in Chapter 15.04 of the Fullerton Municipal Code, is permitted within any outdoor dining or patio area.
Any music that is played outdoors at a volume louder than Ambient Music, whether live or pre -recorded and excepting Entertainment (Minor Acoustical) is considered Entertainment (Outdoor) and is prohibited.
Community and
Economic
Development
Department,
Code Enforcement
Division,
Police Department
This notice is provided so that you can ask questions, make comments , and stay informed about projects that might be important to you. We encourage you to contact us prior to the Public Hearing if you have any questions and/or to enter your testimony into the public record in advance of the Public Hearing. You are receiving this notice because you live, work, or own property within 300 feet of the project site, or you have indicated you wished to be notified about this project or proposal.
Meeting Time and Date
This matter will be heard on Wednesday, October 12, 2022, at 6:30 p.m. by the Planning Commission in the Fullerton City Council Chamber, 303 West Commonwealth Avenue, Fullerton, CA 92832. Members of the public can view meetings streamed live online at www.cityoffullerton.com/agendas, on Spectrum Cable Channel 3, and AT&T U-Verse Channel 99. The public may also remotely participate in the meeting to make oral public comment via computer, smart device, or telephone. The Council Chamber will have limited seating available on a first- come, first-served basis for members of the public to attend the meeting in person.
What is the Proposed Project?
A request to modify a prior Conditional Use Permit (PRJ0 9-00033 and ZON09-00006) as approved by Planning Commission Resolution No. PC -09-22; to comply with Fullerton Municipal Code (FMC) Section 15.30.030.3.B.21.
The Conditional Use Permit is for a Type 47 ABC License (on- site sale of beer, wine, and distilled spirits) for an existing restaurant (120 Fullerton), which includes entertainment and an existing outdoor dining patio, on property located at 120 West Wilshire Avenue.
Who to Contact if You Have Questions or Comments
If you have any questions or would like to comment on the proposed action prior to the public hearing, please contact Christine Hernandez with the Community and Economic Development Department at (714) 738-3163 or send an email to [email protected]. The public can also submit public comment before the meeting by clicking on the eComment link accompanying the agenda posted online at www.cityoffullerton.com/agendas. All written comments received by 5:00 p.m. on the day of the meeting will be provided to the Planning Commission.
Where to Get More Information
Project details may be found on the City website 72- hours prior to the public hearing at:
www.cityoffullerton.com/agendas. Under “Upcoming Meetings,” click on the link to the Agenda for the corresponding Planning Commission date. The agenda contains links to the staff report and other informational materials for each agenda item as well as information on how to make oral public comment during the meeting.
Planning Commission Action Items
The Fullerton Planning Commission will hold a public hearing to consider the application for a Conditional Use Permit (ZON-2020-0035). This application is exempt from the California Environmental Quality Act (CEQA) pursuant to State CEQA Guidelines Section 15301– Existing Facilities. The determination by the Planning Commission is final unless appealed.
Si tiene preguntas en español, favor de llamar a Christine Hernandez al (714) 738-3163.
If requested, the agenda and backup materials will be made available in appropriate alternative formats to persons with a disability, as required by Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132) and the federal rules and regulations adopted in implementation thereof. Should you require special accommodations to participate in a meeting, please contact Janet Ragland at [email protected] or (714) 738-6598 at least 48 hours prior to the meeting to make arrangements.
If you challenge the decision on the above matter in court, you may be limited to raising only those issues you or someone el se raised at the public hearing described in this notice, or in written correspondence delivered to the City of Fullerton at, or prior to, the public hearing. (Government Code 65009 (a))
FULLERTON PLANNING COMMISSION
NOTICE OF PUBLIC HEARING
Project Reference No.: ZON-2020-0035
Conditional Use Permit
120 West Wilshire Avenue
ZON-2020-0035
Conditional Use Permit
(120 Fullerton)
120 West Wilshire Avenue
Public Hearing Item
Item No. 3Zoom Meeting ID: 821 8449 5062
Project Location
2 Zone: C-3-ROD (Central
Business District,
Restaurant Overlay District)
General Plan Land Use:
Downtown Mixed Use
Zoom Meeting ID:821 8449 5062
-- subject property
-- tenant space
Project Description
• Request to obtain a Conditional Use Permit (PC-2022-23) to align business operations with new operational standards in FMC Chapter
15.31 - Type 47 ABC License (on-site sale of beer, wine, and distilled spirits) - Entertainment pursuant FMC Chapter 15.31
Zoom Meeting ID: 821 8449 5062
• Original CUP obtained in 2009 – Resolution PC-09-22
• Current owner purchased business (120 Fullerton) in 2017 • Applicant is not requesting deviations or modification to Standard Operating Conditions outlined in FMC Chapter 15.31
• Hours of operation -- Wednesday through Sunday: 5:00 p.m. until 2:00 a.m. • Hours of Live Entertainment -- Wednesday through Sunday: 10:00 p.m. until 2:00 a.m.
Background
Zoom Meeting ID: 821 8449 5062
Proposed Floor Plan
Zoom Meeting ID: 821 8449 5062
Recommended Actions
• Adopt Resolution No. PC-2022-23 approving the request for a Conditional Use Permit, as conditioned
• Project is Categorically Exempt from CEQA per Section15301, Existing facilities Zoom Meeting ID: 821 8449 5062
ZON-2020-0035
Conditional Use Permit
(120 Fullerton)
120 West Wilshire Avenue
Public Hearing Item
Item No. 3Zoom Meeting ID: 821 8449 5062