17.86.040 Alcoholic beverage sales—Deemed approved regulations and standards

17.86.040 Alcoholic beverage sales—Deemed approved regulations and standards.

A. Title of Deemed Approved Alcoholic Beverage Sale Regulations. The provisions of this section shall be known as the “Alcoholic Beverage Sales—Deemed Approved Regulations.”

B. Purpose of Alcoholic Beverage Sales—Deemed Approved Regulations. The general purposes of the deemed approved alcoholic beverage sale regulations are to protect and promote the public health, safety, comfort, convenience, prosperity, and general welfare by requiring that alcoholic beverage sales commercial activities that were established without minor use permit or conditional use permit approval prior to the effective date of the deemed approved alcoholic beverage sale regulations comply with the deemed approved performance standards of subsection G of this section and to achieve all of the following objectives:

1. To protect residential, commercial, industrial, and civic areas and minimize the adverse impacts of nonconforming and incompatible uses;

2. To provide opportunities for alcoholic beverage sale activities to operate in a mutually beneficial relationship to each other and to other commercial and civic services;

3. To provide mechanisms to address problems often associated with the public consumption of alcoholic beverages, such as litter, loitering, graffiti, unruly behavior and escalated noise levels;

4. To provide that alcohol outlets specified in this section are not the source of undue public nuisances in the community;

5. To provide for properly maintained alcoholic beverage sale establishments so that negative impacts generated by these activities are not harmful to the surrounding environment in any way; and

6. To monitor that deemed approved activities do not substantially change in mode or character of operation.

C. Applicability of Alcoholic Beverage Sales—Deemed Approved Regulations. This section shall apply to the following alcoholic beverage sales commercial activities within the city which have been established without approval prior to the effective date of the ordinance codified in this section and as defined in Chapter 17.156 (Land Use Definitions): (1) eating and drinking establishments—bars, nightclubs, and taverns, (2) eating and drinking establishments—restaurant with late hour alcohol service, and (3) food and beverage sales—liquor stores.

D. Duplicated Regulation. Whenever any provision of this section and any other provision of law, whether identified in this code, or in any other law, ordinance, or resolution of any kind, impose overlapping or contradictory regulations, or contain restrictions covering any of the same subject matter, that provision which is more restrictive or imposes higher standards shall control, except as otherwise expressly provided in this section.

E. Administrative Hearing Officer. There is created an alcoholic beverage sales administrative hearing officer (administrative hearing officer) appointed by the city manager. The administrative hearing officer shall conduct public hearings and make recommendations intended to encourage and achieve the compliance of particular sites as appropriate. This subsection is not intended to restrict the powers and duties otherwise pertaining to other city officers or bodies in the field of monitoring and ensuring the harmony of alcoholic beverage sale commercial activities in the city. These parties shall have the powers and duties assigned to them by the zoning regulations, other codes and ordinances, city charter, or by valid administrative authority.

F. Definitions. The meaning and construction of words and phrases in this section shall be consistent with Article 9 (Definitions).

1. Title and Purpose. The provisions of this subsection shall be known as the “deemed approved performance standards.” The purpose of these standards is to control dangerous or objectionable environmental effects of alcoholic beverage sales commercial activities applicable to this section.

2. Standards. These standards shall apply to the following alcoholic beverage sales commercial uses listed in Table 2-1: Uses Allowed by Zone, under the category “Eating and Drinking Establishments—Bars, Nightclubs, and Tavern” and “Eating and Drinking Establishments—Restaurant with late-hour alcohol service,” and “Food and Beverage Sales—Liquor Store,” as defined in Chapter 17.156 (Land Use Definitions). This section is applicable to these uses under the following circumstances:

a. Alcoholic beverage commercial uses which have been established without approval prior to the effective date of the ordinance, June 18, 2012, codified in this section.

b. Alcoholic beverage commercial uses which are inconsistent with Table 2-1: Uses Allowed by Zone and have been established prior to the effective date of the ordinance codified in this section.

3. Performance Standards and Deemed Approved Activities. An activity shall retain its deemed approved status only if it conforms with all of the following deemed approved performance standards:

a. That it does not result in adverse effects to the health, peace or safety of persons residing or working in the surrounding area;

b. That it does not result in jeopardizing or endangering the public health or safety of persons residing or working in the surrounding area;

c. That it does not result in repeated nuisance activities within the premises or in close proximity of the premises, including but not limited to disturbance of the peace, illegal drug activity, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, excessive littering, loitering, graffiti, illegal parking, excessive loud noises, especially between the hours of twelve midnight and seven a.m., traffic violations, curfew violations, lewd conduct, or police detentions and arrests;

d. That it does not result in violations to any applicable provision of any other city, state, or federal regulation, ordinance or statute; and

e. That its upkeep and operating characteristics are compatible with and will not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood.

1. Deemed Approved Status Procedure. The provisions of this subsection shall be known as the “alcoholic beverage sales—deemed approved status procedure.” The purposes of these provisions are to: (a) provide notice of deemed approved status upon alcoholic beverage sales commercial activities applicable to this section; (b) prescribe the procedure for the imposition of conditions of approval upon these activities; and (c) prescribe the procedure for appealing conditions of approval or the revocation of a deemed approved status.

2. Automatic Deemed Approved Status. All alcoholic beverage sales commercial activities applicable to this section in compliance with subsection G of this section shall automatically become deemed approved activities as of the effective date of the ordinance codified in this section. Each such deemed approved activity shall retain its deemed approved status as long as it complies with the deemed approved performance standards in subsection G of this section.

3. Notification to Owners of Deemed Approved Activities. The administrative hearing officer shall notify the owner of each deemed approved activity, and also the property owner if not the same, of the activity’s deemed approved status. Such notice shall be sent via certified return receipt mail or similar method providing proof of delivery and shall include a copy of the performance standards of subsection G of this section, with the requirement that these be posted in a conspicuous and unobstructed place visible from the entrance of the establishment for public review; notification that the activity is required to comply with all these same performance standards; and that the activity is required to comply with all other aspects of this chapter. Should the notice be returned, then the notice shall be sent via regular U.S. mail.

4. Procedure for Consideration of Violations to Performance Standards. Upon receiving a complaint from the public, police department, code enforcement officer, or any other interested party that a deemed approved activity is in violation of the performance standards of subsection G of this section, and once it is determined by the city that violations appear to be occurring, then a public hearing will be scheduled before the administrative hearing officer, as follows:

a. The director will provide the complainant, the business owner of the deemed approved activity, the property owner (if not the same as the business owner), and other interested parties with at least thirty calendar days’ advance notice of the public hearing. “Interested parties” are defined as those that have made a request with the city clerk to be notified of these proceedings and shall include the downtown association or its successor agency in all instances in which the complaint involves an establishment within the boundaries of the downtown association or its successor agency.

b. In all instances in which the complaint involves an establishment within the boundaries of the downtown association, the downtown association may, within the thirty-day period preceding the hearing, schedule a meeting with authorized representatives of the establishment to review the facts underlying the complaint and the establishment’s response to the complaint and to develop input to be conveyed to the administrative hearing officer regarding the downtown association’s recommendation regarding the complaint and any measures the downtown association suggests to address the complaint.

i. Nothing herein shall require the business establishment within the boundaries of the downtown association to participate in the meeting with the downtown association, but the downtown association shall advise the administrative hearing officer if an establishment declines to participate and the administrative hearing officer may consider the establishment’s failure to participate in determining appropriate remedies if a violation is found to have occurred after considering all testimony presented during the public hearing.

ii. The administrative hearing officer shall not in any manner be bound by any recommendation of the downtown association and shall give the recommendation from the downtown association such weight as the administrative hearing officer, in his or her sole discretion, deems appropriate after consideration of all record testimony and evidence presented in the public hearing. The administrative hearing officer shall proceed with the public hearing after thirty calendar days of issuing a notice of public hearing, whether or not the downtown association or its successor agency has met with the business owner of the deemed approved activity or delivered a recommendation for consideration by the administrative hearing officer. Failure of the downtown association to receive notice in compliance with this section, or in compliance with procedures established by the city, shall not constitute grounds to cancel the public hearing or invalidate the actions for which the notice was given.

iii. In no event shall a meeting between the downtown association and the business owner of the deemed approved activity cause a delay to or substitute for a public hearing before the city’s administrative hearing officer, unless it is determined in the sole discretion of the administrative hearing officer that a delay is in the public’s interest.

c. The purpose of the administrative public hearing is to receive evidence and testimony on whether the operating methods of the deemed approved activity are causing undue negative impacts in the surrounding area or on the premises. At the public hearing, the administrative hearing officer shall determine whether the deemed approved activity conforms to the deemed approved performance standards identified in subsection G of this section and to any other applicable criteria, and may continue the deemed approved status for the activity in question, or require such changes, or impose such reasonable conditions of approval as are necessary, in the judgment of the administrative hearing officer, to ensure conformity to said criteria. Any such changes or conditions shall be based on the evidence before the officer. The decision of the administrative hearing officer shall be based upon information compiled by staff and evidence and testimony from the complainant, the business owner, the property owner if not the same, and all other interested parties. New conditions of approval shall be made a part of the deemed approved status and the deemed approved activity shall be required to comply with these conditions. The determination of the administrative hearing officer shall become final ten calendar days after the date of decision unless appealed to the planning commission in compliance with Chapter 17.126 (Appeals).

5. Procedure for Consideration of Violations of Standards or Conditions of Approval. In the event of a violation of any condition of approval or of further violations of the provisions identified in subsection G of this section, the administrative hearing officer shall hold a noticed public hearing. The purpose of this public hearing is to receive testimony and determine whether violations of conditions of approval or of subsection G of this section have occurred. The administrative hearing officer may add to or amend the existing conditions of approval based upon the evidence presented, or alternatively may revoke the deemed approved activity’s deemed approved status. The determination of the administrative hearing officer shall become final ten calendar days after the date of decision unless appealed to the planning commission in compliance with subsection (H)(6) of this section. The decision of the planning commission shall be final unless appealed to the council in compliance with subsection (H)(7) of this section.

6. Appeal to Planning Commission. Appeals of the decisions of the administrative hearing officer may be filed in compliance with Chapter 17.126 (Appeals). In considering the appeal, the planning commission shall determine whether the established use conforms to the applicable deemed approved performance standards and may continue or revoke a deemed approved status, or require such changes in the existing use or impose such reasonable conditions of approval as are, in its judgment, necessary to ensure conformity to said performance standards.

7. Appeal to Council. Appeals of the decisions of the planning commission may be filed in compliance with Chapter 17.126 (Appeals). In considering the appeal, the council shall determine whether the deemed approved activity conforms to the applicable deemed approved performance standards, and may approve or deny the revocation or require such changes therein or impose such reasonable conditions of approval as are in its judgment necessary to ensure conformity to said standards.

1. Applicability. The provisions of this subsection shall apply to the enforcement of this section.

2. Official Action. All officials, departments, and employees of the city vested with the authority to issue permits, certificates, or licenses shall adhere to, and require conformance with, this section.

3. Infractions. Any person who violates, causes, or permits another person to violate any provision of this section is guilty of an infraction unless otherwise provided.

4. Separate Offenses for Each Day. Any violator shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of this section is committed, continued, allowed, or caused by such violator and shall be punishable accordingly.

5. Any Violation a Public Nuisance. In addition to the penalties provided in this subsection, any use or condition caused or allowed to exist in violation of any of the provisions of this section shall be and is declared to be a public nuisance and may be summarily abated as such by the city.

6. Injunction as Additional Remedy. Any violation of any provision of this section shall be and is declared to be contrary to the public interest and shall, at the discretion of the city, create a cause of action for injunctive relief.

7. Penalties. Any person convicted of an infraction under the provisions of this subsection shall be punishable by a fine to the maximum allowed under state law. Any violation beyond the second conviction within a one-year period may be charged by the city attorney as a misdemeanor, and the penalty for conviction shall be punishable by a fine or imprisonment to the maximum allowed under state law.

8. Liability for Expenses. In addition to the punishment provided by law, a violator is liable for such costs, expenses, and disbursements paid or incurred by the city or any of its contractors in correction, abatement, and prosecution of the violation.

9. Enforcement. The city shall designate the appropriate personnel to enforce the provisions of these regulations. (Ord. 1650 § 3 (Exh. B), 2018)