ARTICLE 166
DEEMED APPROVED ALCOHOLIC BEVERAGE RETAIL SALES

25-166-1: TITLE:

This article shall be known as the DEEMED APPROVED ALCOHOLIC BEVERAGE RETAIL SALE ORDINANCE. (Ord. #1567, §1)

25-166-2: PURPOSE:

The city recognizes that the health, safety, and general welfare of persons visiting, residing, working or conducting business in the city may be adversely impacted by alcoholic beverage retail sales establishments which are nonconforming because they do not have a conditional use permit for alcohol sales. The purpose of this article is to set forth regulations and enforcement procedures that:

A. Address community challenges associated with the sales and/or consumption of alcoholic beverages, such as litter, noise, illegal activity and loitering.

B. Provide opportunities for alcoholic beverage retail sales to be conducted in a mutually beneficial relationship to each other and to other commercial and civic services.

C. Prevent such prohibited activities and activities contrary to deemed approved activities from becoming public nuisances.

D. Ensure such adverse impacts from legal nonconforming alcohol establishments are monitored, mitigated and/or controlled such that they do not negatively contribute to the change in character of the areas in which they are located.

E. To monitor that deemed approved activities do not substantially change in mode or character of operation. (Ord. #1567, §1)

25-166-3: DEFINITIONS:

ADMINISTRATOR: The director of development services and/or his/her designee.

ALCOHOLIC BEVERAGE: Alcoholic, spirits, liquor, wine, beer and every liquid or solid containing alcohol, spirits, wine or beer, which contains one-half of one percent or more of alcohol by volume and which is prepared for consumption either alone or when diluted, mixed or combined with other substances, and sales of which require a state department of alcoholic beverages control license.

ALCOHOLIC BEVERAGE RETAIL SALES: The retail sale of alcoholic beverages for either off premises or on premises consumption, excluding bona fide restaurants.

BUSINESS DAY: A day that Lynwood city hall is open to conduct public business.

CONDITIONS OF APPROVAL: The requirements that must be met in order for a deemed approved activity to retain its deemed approved status.

DEEMED APPROVED ACTIVITY: Any alcohol sales that have not been subjected to an alcohol conditional use permit.

DEEMED APPROVED STATUS: A deemed approved activity that is in full compliance with the performance standards set forth in section 25-166-6 of this article and any imposed conditions of approval.

ILLEGAL ACTIVITY: An activity that has been determined to not be in compliance with the deemed approved performance standards set forth in section 25-166-6 of this article.

OPERATOR: The person, as either an individual or other entity, who is the proprietor of the establishment, whether in a capacity of owner, licensee, lessee, sublessee, mortgagee in possession, licensee or any other capacity. Where the operator performs his or her functions through a managing agent of any type or character other than an employee, the managing agent shall also be deemed an operator for the purposes of this article and shall have the same duties and liabilities as his or her principal. Compliance with the provisions of this article by either the principal or the managing agent shall, however, be considered compliance by both.

PERFORMANCE STANDARDS: The requirements prescribed herein to ensure the deemed approved activity is in conformity with the purpose of this article.

PREMISES: The actual space within a building or any area, either directly or indirectly supporting alcoholic beverage sales.

SHERIFF’S DEPARTMENT: The Los Angeles County sheriff’s department, or any other successor law enforcement agency. (Ord. #1567, §1)

25-166-4: APPLICABILITY:

A. The provisions of this article shall apply to legal nonconforming alcoholic beverage sale activities within the city of Lynwood.

B. The nonconforming use provisions set forth in article 165 of this chapter shall apply to the deemed approved alcoholic beverage sale regulations. (Ord. #1567, §1)

25-166-5: DEEMED APPROVED COMPLIANCE:

All nonconforming alcoholic beverage retail sales activities shall automatically become deemed approved activities as of the effective date hereof. Each such deemed approved activity shall retain its deemed approved status, as long as it complies with each of the performance standards set forth in section 25-166-6 of this article. (Ord. #1567, §1)

25-166-6: PERFORMANCE STANDARDS:

Except as otherwise provided by California Business and Professions Code section 25600 et seq., relating to alcoholic beverages in general, deemed approved activities must comply with all of the following performance standards:

A. It shall not result in adverse effects to the health, welfare, peace or safety of persons visiting, residing, working or conducting business in the surrounding area; and

B. It shall not jeopardize or endanger the public health, welfare or safety of persons visiting, residing, working or conducting business in the surrounding area; and

C. It shall not adversely affect the development of abutting properties and the surrounding neighborhood as a result of inadequate maintenance, prohibited activities, and/or operating characteristics; and

D. It shall not result in nuisance activities, including, but not limited to, disturbance of the peace, illegal drug activities, public drunkenness, public consumption of alcoholic beverages, harassment of passersby, prostitution, sale of stolen goods, public urination, theft, battery, vandalism, littering, loitering, graffiti, illegal parking, loud noises (especially in the late night or early morning hours), traffic violations, curfew violations, lewd conduct, or sheriff detentions and arrests; and

E. It shall not result in violations to any applicable provision of any other city, state or federal regulation, ordinance or statute. (Ord. #1567, §1)

25-166-7: NOTIFICATION TO OPERATORS:

A. Within ninety (90) calendar days after the effective date hereof, the director of development services or his/her designee, shall send each deemed approved activity business operator, and legal owner of the property if different than the operator, notice of its deemed approved status and the requirements of this article. The notice shall be sent by first class mail to the operator and the legal property owner, if different from the operator, return receipt requested and shall include the requirements set forth in this section specifically:

1. A copy of the performance standards of section 25-166-6 of this article;

2. A statement requiring compliance with the performance standards;

3. A statement informing the business operator that if the activity loses its deemed approved status and is declared a nuisance that is abated by the city, cost recovery fees associated with enforcement may be levied; and

4. A statement informing the business operator that the performance standards must be posted for public review in a conspicuous and unobstructed place, visible from the entrance of the establishment.

B. Should the notice be returned, then the notice shall be sent via regular United States mail to the operator. (Ord. #1567, §1)

25-166-8: PERFORMANCE STANDARDS COMPLIANCE:

This section is not intended to restrict the powers and duties otherwise pertaining to other city officers or government bodies, in the field of monitoring and ensuring the harmony of alcoholic beverage retail sales in the city.

A. The administrator has the authority to work with the operator of the deemed approved activity to resolve any minor violations.

B. If the administrator determines that prohibited activities of other than a minor nature exist or were allowed to occur, then the administrator shall refer the deemed approved activity to the planning commission in accordance with section 25-166-9 of this article. (Ord. #1567, §1)

25-166-9: PROCEDURES FOR REFERRAL TO THE PLANNING COMMISSION; PUBLIC HEARING:

A. Referral: The administrator’s referral shall be scheduled for a public hearing before the planning commission within sixty (60) calendar days of the referral, unless both the administrator and the operator of the deemed approved activity consent to a later date.

B. Purpose: The purpose of the public hearing is for the planning commission to hear and receive evidence concerning the operating methods of the deemed approved activity.

C. Notification: Notice of the hearing shall be given to all property owners within a three hundred foot (300') radius of subject property. The operator, if different from the property owner of the deemed approved activity, shall be notified of the public hearing via first class mail, return receipt requested.

D. Testimony And Evidence; Conformity To Criteria: The planning commission shall hear all relevant testimony and consider all relevant evidence, and shall find whether the deemed approved activity is in compliance with the deemed approved performance standards set forth in section 25-166-6 of this article and any other applicable criteria.

1. Subsequent to the presentation of relevant testimony and evidence, the planning commission may:

a. Uphold the deemed approved status.

b. Impose, add or modify such reasonable conditions of approval as are in the judgment of the planning commission necessary to ensure conformity to said criteria.

c. Determine that the deemed approved activity is an “illegal activity” as defined herein. Such findings shall result in the deemed approved activity losing its deemed approved status. Revocation of the deemed approved status shall cause the planning commission to order immediate and permanent discontinuance of alcoholic beverage sales as of the effective date of the decision. This order shall be stayed if an appeal is filed pursuant to this municipal code.

d. Any new or modified conditions of approval required by the planning commission shall be made a part of the deemed approved status, and the deemed approved activity shall be required to comply with these conditions of approval.

e. Any performance standards and conditions of approval must be conspicuously displayed in the premises in an area viewed by the public. (Ord. #1567, §1)

25-166-10: HEARING PROCEDURE:

A. The decision of the planning commission may be appealed to the city council or its designated hearing officer in accordance with this municipal code.

B. After the expiration of the appeal period to the city council, the decision of the planning commission shall be final and conclusive unless an appeal was timely filed in accordance with the provisions of this municipal code.

C. In considering the appeal, the city council, or its designated hearing officer, shall determine whether the established use conforms to the applicable deemed approved performance standards and/or conditions of approval.

D. On appeal, the city council, or its designated hearing officer, shall conduct the hearing and may uphold, reverse, or amend any decision of the planning commission. The decision of the city council, or its designated hearing officer, shall be final and conclusive. Notice of the city council’s, or its designated hearing officer’s, decision shall be mailed by the city clerk to the property owner and operator, if different from the owner, or other appellant within ten (10) business days of the decision personally, or by certified United States mail, return receipt requested. The decision shall include notification of section 1094.6 of the California Code of Civil Procedure. Should the certified mailed notice be returned to the city for any reason, the city shall cause a copy of the same to be mailed to the property owner shown on the last equalized assessment roll by regular first class mail with postage fully paid. (Ord. #1567, §1)

25-166-11: FEE SCHEDULE:

Fees for review, notification, appeal and reinspection of deemed approved activities shall be in accordance with the city’s general fee schedule as may be amended by resolution of the city council. (Ord. #1567, §1)

25-166-12: NUISANCE:

If any nonconforming alcoholic beverage establishment is found to be a nuisance pursuant to section 3-13 of this municipal code, and is not abated by the owner, then it shall be abated by the city. If the nuisance is abated by the city, the costs incurred by the city will be reimbursed to the city, and if necessary, will become a lien against the property until paid. (Ord. #1567, §1)

25-166-13: ADDITIONAL RULES AND REGULATIONS:

The city council reserves their right to adopt by resolution additional rules and regulations which shall become effective immediately upon adoption, governing the implementation of the specific procedures of this article. (Ord. #1567, §1)